Volume 194 — New York Reports

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 8, 1908, which reversed an interlocutory judgment of Special Term sustaining a demurrer to the second and third defenses of the answer and overruled such demurrer. The questions certified are : First.

. This action was brought to recover damages for the alleged negligence of the defendant in maintaining a defective sidewalk on Prospect Park West near the intersection of Sixteenth street, whereby plaintiff was tripped and injured by falling on the walk. The evidence tends to establish that plaintiff did trip and fall at the point in question.

The nature of the action and the facts, so far as material, are stated in the opinion. Appellant has rented to advertisers surplus exterior space upon its stages, as it lias an inherent right to do as the owner of the stages, and no question of corporate franchise is involved.

Appeal, by permission, from a judgment of the Appellate Division of tiie Supreme Court in the second judicial department, entered October 22, 1907, unanimously affirming a j udgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial. The nature of the action and the facts, as far as material, are .stated in the opinion.

' Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 13, 1908, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial. The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in charging the jury that no witnesses told how or why the scaffold fell and, therefore, the maxim res ipsa loquitur applied.

The action was brought to recover damages caused by burns received by appellant while she was at work in respondent’s factory and which injuries it is claimed resulted from the latter’s failure to remove starch dust and other inflammable waste from the room wherein she was working, and to place outside fire escapes upon its building.

The action was brought to establish plaintiff’s ownership of a deposit in the defendant Home Savings Bank payable to her or the deceased Kate Y. Beers, or the survivor, and the following facts, amongst others, were established beyond dispute, most of them being found by the trial court. The deceased and the plaintiff were mother and daughter, part of the time at least residing together, and the only other child was a son, Franklin.

This action was brought to establish plaintiff’s ownership of a deposit in the defendant Albany Savings Bank payable to her mother, Kate Y. Beers, or to the plaintiff or survivor. The facts, so far as material, are stated in the opinion.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 27, 1908, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>There is no evidence of any negligence on the part of the defendant. The only negligence shown is that of the plaintiff and of his co-servants for which the defendant is not liable. It was error to refuse a nonsuit. (Crown v. Orr, 140 N. Y. 450.; Beckley v. G. R. Co., 113 N. Y. 540; Vogel v. A. B. Co., 180 N. Y. 373; McConnell v. M. I. W. & D. D. Co., 187 N. Y. 341; Walsh v. C. S. L. Co., 11 Misc. Rep. 3; Cregan v. Marston, 126 N. Y. 568; Kellogg v. E. Co., 120 App. Div. 410; Fassani v. N. Y. C. & H. R. R. R. Co., 109 App. Div. 404; Paul v. W. C. K. Co., 113 App. Div. 515; Buchanan v. R., W. & O. R. R. Co., 10 N. Y. S. R. 326.)</p> <p>The defendant owed the duty to the plaintiff of furnishing adequate and suitable tools and implements for his use, and a safe and proper place in which to prosecute his work, and, when needed, the employment of skillful and competent workmen to direct his labor and assist in the performance of his duties. (Pantzer v. T. F. I. M. Co., 99 N. Y. 368; Laning v. N. Y. C. R. R. Co., 49 N. Y. 522; Corcoran v. Holbrook, 59 N. Y. 517; Gage v. D., L. & W. R. R. Co., 14 Hun, 446; O'Keefe v. G. N. E. Co., 105 App. Div. 8 ; Byrne v. Eastmans. Co., 163 N. Y. 461; Stackpole v. Wray, 99 App. Div. 262.) The duty of the defendant to keep in repair the machinery, tools, appliances and implements it furnished to the plaintiff was as absolute as the duty of the defendant to furnish adequate and suitable tools and implements for the work to be performed, and cannot be delegated by the defendant to its superintendent or foreman so as to relieve it from liability for its non-performance. (Scandell v. C. C. Co., 50 App. Div. 512; McGuire v. B. T. Co., 167 N. Y. 208; Shearman & Redfield on Neg. [5th ed.] § 194; Kain v. Smith, 80 N. Y. 458; Probst v. Delamater, 100 N. Y. 266 ; Tallone v. C. S. Co., 9 App. Div. 145 ; Doring v. O. & W. Co., 151 N. Y. 579 ; Wright v. N. Y. C. R. R. Co., 25 N. Y. 567; Byrne v. Eastmans Co., 163 N. Y. 461; Hankins v. L. E. & W. R. R. Co., 142 N. Y. 416 ; Mayer v. Liebmann, 16 App. Div. 54.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The complaint does not show a cause of action. The court has no jurisdiction and the plaintiff is not entitled to the relief prayed for. (Fowler’s Personal Property Law, 32; Matter of Carpenter, 131 N. Y. 86; Cochrane v. Schell, 140 N. Y. 516 ; Schenck v. Barnes, 156 N. Y. 316; Rhodes v. Caswell, 41 App.

This action was brought to compel the specific performance of an alleged oral agreement by the defendant’s testatrix to leave, upon her death, certain property to the plaintiff. The facts, so far as material, are stated in the opinion.

<p>The facts, so far as material, are stated in the opinion.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The court permitted plaintiff to introduce evidence that was incompetent, improper and irrelevant to the issues. It was most damaging and prejudicial to defendant.

<p>Evidence—age of witness — admissions—negligence — injury to infant claiming to have been employed in violation of Labor Law.</p> <p>A witness is competent to testify as to his own age. A party may not only testify as to his age, but his statements with reference thereto are admissible against him.</p> <p>Aside from confidential communications, admissions by a party of any fact material to the issue are always competent evidence against him in a civil action, and as a rule sufficient to establish a cause of action or defense. A party is not prevented from showing such admissions on cross-examination by the fact that he first interrogated bis adversary with reference to the same subject-matter. The rule that one cannot impeach his own witness by contradictory statements made out of court is limited to the case of a witness who is not the adverse party.</p> <p>In an action to recover damages for personal injuries sustained by an infant under the age of fourteen, who was claimed to have been employed in violation of section 70 of the Labor Law (L. 1897, ch. 415), the gist of civil liability is the negligence of the master in employing a person of such tender years that the legislature has forbidden his employment. On the trial of such an action the court refused to charge: “If the plaintiff falsely stated his age to the officers of the defendant and led them to believe that he was actually over fourteen years of age at the time he was hired, and if they were justified in that belief then they are not guilty of negligence in hiring him.” Held, error, since the employer cannot be charged with negligence if he used proper vigilance in ascertaining the facts.</p>

Ceoss-appeals from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered June 25, 1908, affirming a judgment entered upon a verdict directed by the court. The nature of the action and the facts, so far as material, are stated in the opinion. In an action in quo warranto the certificate of election is onl j prima facie evidence of title and may be set aside.

This action was brought by the plaintiff to recover, by way of damages, the loss occasioned to it from having made a loan of money upon spurious certificates of shares, which had been fraudulently issued by one of the officers of the defendant. The defendant was a cemetery association, organized and existing under chapter 133 of the Laws of 1847 and the acts amendatory thereof.

Appeal, by permission, from an interlocutory judgment, entered May 7,1908, upon an order of the Appellate Division of the Supreme Court in the second judicial department, which affirmed an interlocutory judgment of Special Term overruling a demurrer to the complaint. The defendant on and before July 29,1907, was engaged in operating a railroad within the limits of the town of Smith-town in Suffolk county.

<p>Motion for re-argument. (See 193 H. Y. 148.)</p>

<p>(1) . Trial—Confessions.</p> <p>It is the duty of the court to rule in the first instance on the admission of evidence of confessions, but if there is a conflict of evidence in-regard to the circumstances under which they were made, that issue must be submitted to the jury.</p> <p>(2) . Same—Interpreters.</p> <p>Upon a trial of an action the person who acts as an interpreter is • not deemed to be the agent of either party, but to be an officer of the court, and as such is sworn to correctly interpret between the witness, the court and the jury.</p> <p>(3) . Same—Stenographer’s Minutes of Confessions.</p> <p>A typewritten transcript of a confession made through an interpreter was properly received in evidence, although the stenographer could not remember the questions and answers in full without referring to the minutes, where defendant’s counsel consented that the transcript be used instead of the original notes, and the stenographer swore that in taking the stenographic notes, the questions and answers were correctly taken, and the transcript had been compared with the original notes and that it was correct.</p> <p>(4) . Same—Transcripts of Minutes.</p> <p>A transcript of the stenographer’s minutes of a confession made through an interpreter is not inadmissible as hearsay, by reason of the fact that the stenographer put down what the interpreter reported, when the interpreter testified that he correctly interpreted the questions to the defendant and that he correctly translated to the stenographer the answers which were made by the defendant. This made the defendant’s declarations original evidence and not hearsay.</p> <p>(5) . Same—Threats.</p> <p>Evidence with regard to alleged threats by means of which confessions were claimed to have been obtained, considered and held to have presented questions of fact for the trial court and ultimately for the jury.</p> <p>(6) . Same—Officer Directing Prisoner to “Tell the Truth.”</p> <p>A suggestion by an officer in charge of a prisoner that he “ tell the truth ” is in the nature of advice and not a threat, and does not come within the statute (Code Grim. Pro., § 395), prohibiting evidence of confessions.</p> <p>(7) . Same—Made to Officer, Prisoner Not Being Warned.</p> <p>A confession is not inadmissible because made to an officer of the law, by an accused person under arrest, if made without the influence of fear produced by threats. The failure of a district attorney, before ■ taking a confession, to warn the accused that his statements might be used against him, is not a sufficient ground for the reversal of a judgment of conviction; the district attorney is not a magistrate required by the statute (Code Grim. Pro., §§ 188, 196), to advise the accused of his statutory rights upon a preliminary examination before commitment.</p> <p>(8) . Same—Preliminary Examination.</p> <p>The preliminary examination of a witness for the purpose of ascertaining whether a confession was obtained by threats is a part of the evidence in the case and should be taken in the presence of the jury.</p>

Appeal, by permission, from an order of the Supreme Court in the fourth judicial department, entered October 14, 1908, which affirmed an order of Special Term denying a motion to set aside a service of process upon the defendant. The facts, so far as material, and the questions certified are stated in the opinion.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered November 11, 1908, which affirmed an interlocutory judgment of Special Term sustaining a demurrer to the complaint. The following question was certified : “ Does the complaint state facts sufficient to constitute a cause of action against the defendants ? ” The nature of the action and the facts, so far as material, are stated in the opinion.

This action was brought to recover for the death of plaintiff’s intestate alleged to have been caused by defendant’s negligence. The facts, so far as material, are stated in the opiniori. The defendant was not negligent in respect to any duty which it owed plaintiff’s intestate. (Keller v. E. R. R. Co., 183 N. Y. 67; Rosenthal v. N. Y., S. & W. R. R. Co., 112 App.

The charge against the defendants was that “On the eleventh day of March, 1906, at the Borough of Brooklyn, of the city of New York, in the county of Kings, (they) did wilfully, knowingly and wilfully steal, take and carry away five bushels of hard clams and one-half bushel mf oysters, of the total value of ten dollars, of the goods, chattels and personal property of H. W. Schmelke and Company, against the form of the statute in such case made and provided.” The issue joined…

<p>Matrimonial actions — counsel fees to the wife.</p> <p>The power of the court to require a husband to pay counsel fees to the wife to enable her to carry on or defend an action between them affecting the marriage relation is either derived from the statute or incidental to the statutory jurisdiction to entertain such actions. In either case the power to make such allowance is dependent upon the necessity therefor.</p> <p>When the wife in a matrimonial action asks the court for an allowance for counsel fees, the burden is upon her to establish the facts which entitle her thereto. If the wife has money under her control, which she is entitled to use, sufficient to carry on or defend such an action, the court will not direct the husband to pay her any further sum for that purpose.</p> <p>An order for counsel fees must primarily rest upon the existence of the relation of husband and wife. Unless that relation is sustained by the parties there is no basis for the order.</p> <p>Where a judgment of divorce has been granted by a court having jurisdiction, the relation of husband and wife is wholly severed, and the case does not come within the statutory provisions relating to counsel fees, nor has the court inherent jurisdiction to grant counsel fees as an incident to its general statutory jurisdiction in matrimonial actions.</p>

The facts, so far-as material, are stated in the opinion. This motion can only be made in the third judicial district. (Code Civ. Pro. §§ 2068, 2084; Mason v. Willers, 7 Hun, 23; People v. Myers, 50 Hun, 479; People ex rel. Shook v. Kilburn, 28 Misc. Rep. 679; People ex rel. Dagger v. Supervisors, 2 Abb. [N. S.] 78.) Application should be made in the county where the material facts are alleged to have occurred. (Code Civ. Pro. §§ 2068, 2084; People ex rel.

The facts, so far as material, are stated in the opinion. It was not the intention of the legislature, by the G-eneral Tax Law of 1896, to repeal a special exemption from taxation which was promised in the charter of a benevolent corporation as an inducement to procure, and which did procure, a transfer to it by specific individuals of specific property, which but for the promise might have been otherwise disposed of. (People ex rel.

The action was brought to recover damages sustained by the death of tiie plaintiff’s intestate alleged to have been caused by the negligence of the defendant in the maintenance and operation of its road and cars. Although quite unsatisfactory at some points we shall assume that there was evidence tending to establish the following facts: The intestate was a freight brakeman in the employ of defendant.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered May 12, 1908, which affirmed an interlocutory judgment of Special Term sustaining a demurrer to the complaint.

The nature of the action and the facts, so far as material, are stated in the opinion. The notice under the Employers’ Liability Act was sufficient, because it correctly described the failure of the defendant to inspect as the cause of the accident. (Ortolano v. D. C. Co., 104 N. Y. Supp. 1064; Darry v. D. D. Co., 121 App.

The facts, so far as material, are stated in the opinion. The court erred in refusing to admit the testimony of James A. Ward as to his conversation with Mrs. Brennan on or about the loth day of January, 1908, in regard to the giving of the deeds in question.

Special Term sustaining demurrers to the complaint. The nature of the action and the facts, so far as material, are stated in the opinion. The Supreme Court of this state has jurisdiction of the subject-matter of the action as set out in the complaint. The action is wholly founded on contract and the wrongful violation of the same. (Hodge v. Sloan, 107 N. Y. 244; Lewis v. Gollner, 129 N. Y. 227; N. Y. B. N. Co. v. H. B. N. Co., 83 Hun, 593; 28 App.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered October 16, 1908, which affirmed an order of the Kings County Surrogate’s Court assessing a transfer tax upon property transferred by decedent prior to her death by a certain deed of trust.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The trust deed in "question was executed and delivered several years before the decedent’s death, and at a time when she was in perfectly good health. It was not, therefore, in any proper sense of the term, a transfer in contemplation of death, or what is known as a gift causa mortis. It was strictly an instrument inter vivos, and was drawn in the usual form of instruments, the object of which is to vest in trustees the entire interest in the property for the benefit of certain life beneficiaries with a gift over of the remainder. (N. Y. L. Ins. & T. Co. v. Cary, 191 N. Y. 33; Ridden v. Thrall, 125 N. Y. 572.) The property in question which has been assessed, having been transferred by an instrument inter vivos, and not by will, is not subject to the tax. Subdivision 3 of section 220 of the Laws of 1896, chapter 908, under which this tax was assessed, is not applicable to the transfer in question; for, in so far as it in terms applies to transfers inter vivos, it is unconstitutional, null and void, as involving an arbitrary, discriminatory and unequal tax upon the transfer of property. (Matter of Seaman, 147 N. Y. 69; Matter of Brandreth, 169 N. Y. 437; 27 Am. & Eng. Ency. of Law, [2d ed.] 338, 339 ; People ex rel. Patch v. Reardon, 184 N. Y. 431; Matter of Connell, 170 N. Y. 423.) The legislature cannot, under its general power of taxation over property, or the alienation of it inter vivos, impose a different rate of taxation as between lineal descendants and collaterals, or a different rate as between transfers which reserve a life estate and those making no such reservation, for such taxation would be discriminatory, and, therefore, unconstitutional. (Matter of Pell, 171 N. Y. 48; Matter of Green, 153 N. Y. 223; People ex rel. Patch v. Reardon, 184 N. Y. 431; Matter of Sherman, 153 N. Y. 1; Magoun v. I. T. & S. Bank, 170 U. S. 283; People ex rel. Farrington v. Mensching, 187 N. Y. 8.) The statute in question is arbitrarily discriminatory, in that it imposes a tax only upon a limited class of remainders, namely, remainders which take effect in possession or enjoyment after the death of the grantor, vendor or donor. (Matter of Pell, 171 N. Y. 48; People ex rel. Patch v. Reardon, 184 N. Y. 431; People ex rel. Farrington v. Menschmg, 187 N. Y. 8 ; Magoun v. I. T. & S. Bank, 170 U. S. 283 ; G., C. & S. F. R. R. Co. v. Ellis, 165 U. S. 150; Pollock v. F. L. & T. Co., 157 U. S. 429.) The statute in question is also unequal in its operation, imposing a tax of five per cent upon one class of persons and a tax of one per cent upon other classes of persons. (Matter of Pell, 171 N Y. 48.)</p> <p>The interest of the beneficiaries under the trust deed in questiondidnot vest in possession until after the death of the donor, and said gifts were intended to and did take effect in possession and enjoyment at the death of Susan A. Keeney and were, therefore, taxable. (Matter of Green, 153 N. Y. 223; Matter of Seaman, 147 N. Y. 77; Matter of Masury, 28 App. Div. 580;. Matter of Bostwick, 160 N. Y. 481; Matter of Brandreth, 169 N. Y. 437; Matter of Cornell, 170 N. Y. 423.) The tax imposed was not upon the property transferred, but upon the right of succession which passed to the beneficiaries. (Matter of Pell, 171 N. Y. 48; Matter of Seaman, 147 N. Y. 69; Matter of Swift, 137 N. Y. 88.) The act under which this tax was imposed is not so arbitrary, discriminating or unreasonable as to deprive the appellants of their property without due process of law or to withhold from them the equal protection of the law. (Matter of McPherson, 104 N. Y. 306 ; Matter of Pell, 171 N. Y. 48; People ex rel. Hatch v. Reardon, 184 N. Y. 431; People v. Home Ins. Co., 92 N. Y. 328 ; Genet v. City of Brooklyn, 99 N. Y. 296 ; 1 Cooley on Taxation [3d ed.], 255; Matter of Gould, 156 N. Y. 423; McGoun v. I. T. & S. Bank, 170 U. S. 283; Matter of Romaine, 127 N. Y. 80; Matter of Whiting, 150 N. Y. 25 ; Nichol v. Ames, 173 U. S. 509.) It is immaterial whether the personal property mentioned in the trust deed was located in New Jersey or in New York. (L. 1896, ch. 908, § 220.)</p>

The facts, so far as material, are stated in the^opinion.. The 7th clause of the last will and testament of Bethuel McCoy, deceased, and the codicil thereto dated August 6, 1875, create a which unlawfully suspends the power of alienation and the whole provision is void.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 13,1908, which affirmed an interlocutory judgment of Special Term overruling a demurrer to the complaint. The nature of the action, the facts, so far as material, and the questions certified are stated in the opinion.

Plaintiff alleges that the defendant “ contriving and wickedly and maliciously intending to injure the plaintiff in his good name, fame and credit, and to bring him into public scandal, infamy and disgrace with and amongst all his neighbors and other good and worthy citizens, and to cause it to be suspected and believed by these neighbors and citizens, that the said plaintiff had been and was guilty of the offenses and misconduct hereinafter mentioned to have been made and…

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 11,1907, upon an order which reversed an order of Special Term reversing a judgment of the Municipal Court of the city of Buffalo in favor of plaintiffs and granting a new trial, and affirmed the said Municipal Court judgment.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered September 25, 1908, which modified and affirmed as modified an order of Special Term granting a motion for a preliminary injunction pendente lite.

The nature of the action and the facts, so far as material, are stated in the opinion. The statute, as construed by the lower courts, is in- derogation of common-law rights. (2 Black. Comm. 391—393; 2 Am. & Eng.

<p>Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 8, 1908, which affirmed an interlocutory judgment of Special Term in favor of plaintiff in an action for the partition of certain real property comprising a portion of the estate of Simon Schey, deceased, as to which it was claimed he died intestate.'</p> <p>The following questions were certified: “ 1. Are the trusts attempted to be created by the testator under paragraphs ‘ Fourth,’ 6 Fifth,’ £ Sixth,’ £ Seventh ’ and £ Eighth,’ as modified by the provisions of paragraph ‘ Thirteenth ’ of the will of thé testator, valid and enforcible ?</p> <p>“ 2. If said trusts are not.valid and enforcible in whole, are they valid and enforcible in part, and if so (a) to what extent, and (b) should the invalid parts of said trusts be cut off and the valid parts sustained ? ”</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>All of the trusts created by the testator under his will are valid and enforceable. (Moore v. Hegeman, 72 N. Y. 376; Vanderpoel v. Loew, 112 N. Y. 167; Corse v. Chapman, 153 N. Y. 466; Quade v. Bertsch, 65 App. Div. 600; 163 N. Y. 615; Savage v. Burnham, 17 N. Y. 561; Everitt v. Everitt, 29 N. Y. 39; Chapman on Susp. on Alienation, §176; Oxley v. Lane, 35 N. Y. 340; Beatty v. Goodwin, 127 App. Div. 98; Roe v. Vingut, 117 N. Y. 204; Crozier v. Bray, 120 N. Y. 366; Mee v. Gordon, 187 N. Y. 400; Haug v. Schumaker, 166 N. Y. 506.) If the invalid parts of a will can be expunged without essentially changing or destroying the testator’s testamentary scheme, the valid parts of the will should be upheld and the invalid parts should be cut off. (Tiers v. Tiers, 98 N. Y. 568; Kalish v. Kalish, 166 N. Y. 368 ; Smith v. Chesebrough, 176 N. Y. 317; Schlereth v. Schlereth, 173 N. Y. 444; Savage v. Burnham, 17 N. Y. 561; Robb v. W. & J. College, 103 App. Div. 327; 185 N. Y. 485; Henderson v. Henderson, 113 N. Y. 1; Underwood v. Curtis, 127 N. Y. 523; Schermerhorn v. Cutting, 131 N. Y. 48; Chapman on Trusts, 626.)</p> <p>The trusts attempted to be created by the last will and testament of Simon Schey, deceased, are valid and enforceable in law, and do not suspend the power of alienation for more than, two lives in being. (Roe v. Vingut, 117 N. Y. 214; Post v. Hover, 33 N. Y. 503; Mason v. Jones, 2 Barb. 229 ; Du Bois v. Ray, 35 N. Y. 163; Hooker v. Hooker, 41 App. Div. 235 ; Savage v. Burnham, 17 N. Y. 561; Wells v. Wells, 88 N. Y. 323; Everitt v. Everitt, 29 N. Y. 39 ; Van Brunt v. Van Brunt, 111 N. Y. 178 ; Vanderpoel v. Loew, 112 N. Y. 167.) Where several trusts are created by a will, some of which are legal and others illegal, the legal portions will be allowed to stand. (Matter of Hoyt, 32 N. Y. S. R. 787; Kennedy v. Hoy, 105 N. Y. 134; Murray v. Charlick, 23 Wkly. Dig. 563 ; Manice v. Manice, 43 N. Y. 303; Harrison v. Harrison, 36 N. Y. 543 ; Tiers v. Tiers, 98 N. Y. 568 ; Savage v. Burnham, 17 N. Y. 561; Henderson v. Henderson, 113 N. Y. 1.)</p> <p>All of the trusts attempted to be created by the testator under his last will and testament are invalid and void as contrary to the Statute of Perpetuities. (L. 1896, ch. 547, § 32; Ward v. Ward, 105 N. Y. 68; Knox v. Jones, 47 N. Y. 389 ; Colton v. Fox, 67 N. Y. 348 ; Cross v. U. S. Trust Co., 131 N. Y. 330 ; Central Trust Co. v. Egleston, 185 N. Y. 23; Herzog v. T. G. & T. Co., 177 N. Y. 86.) A mere possibility of an unlawful suspension of the power of alienation or of absolute ownership is sufficient to invalidate the trusts. (Herzog v. T. G. & T. Co., 177 N. Y. 99.)</p>

<p>Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered April 26, 1907, unanimously affirming a judgment in favor of plaintiffs entered upon a decision of the court on trial at Special Term.</p> <p>The action was brought by the respondents as vendees to enforce the specific performance of a contract claimed to have been made by the appellant for the sale of certain real estate.</p> <p>The facts relied on as constituting an enforceable contract are set forth in the findings of fact and are quite brief. It is there stated that the appellant was the owner of the jiremises in question and that “ on December 1, 1904, plaintiff and defendant and said Dakin (a broker authorized by the defendant to sell the real estate in question) met and discussed a sale of the property * *■ * for $16,500; that on December 3, 1904, defendant wrote and signed a letter addressed to plaintiffs in which lie stated that he would mail the deeds of said property to certain brokers in Brooklyn and requiring plaintiffs to be present on December 5th at a place indicated in the letter with $16,500 in cash and that they would receive a deed of said property ; that on the day last mentioned the defendant wrote and signed a letter addressed to said Dakin * * * in which the defendant stated that he had written the intending purchasers * * * (meaning plaintiffs) to be ready at the office of Jackson & Dombek on December 5, 1904, at three o’clock r. m., and to have the money ready and that the property would then be turned over; * * * that the plaintiffs were present at the time and place on the day mentioned * * * and * * * produced and tendered the sum of $16,500 and demanded a deed of the premises * * * and that the defendant was not then and there present and that no deed of said premises was offered to plaintiffs.”</p> <p>There was no finding of any other or different contract by parol or otherwise than that above set forth.</p> <p>The contract was unilateral and, therefore, not enforceable. (Colt v. O’Connor, 109 N. Y. Supp. 696 ; Ide v. Brown, 178 N. Y. 26-39; Edsonv. Parsons, 155 N. Y. 555 ; Mahaney v. Carr, 175 N. Y. 454; Wadick v. Mace, 191 N. Y. 5 ; Palmer v. Gould, 144 N. Y. 678; German v. Machin, 6 Paige, 288; Phillips v. Berger, 8 Barb. 528; M. E. Co. v. Ward, 24 Abb. [N. C.] 393; Gall v. Gall, 64 Hun, 600; Hamlin v. Stevens, 177 N. Y. 47.)</p> <p>ITo objection of lack of mutuality can be predicated upon the fact that no writing was subscribed by the respondents. (Bleecker v. Franklin, 2 E. D. Smith, 93 ; Kittel v. Stueve, 10 Misc. Rep. 696 ; Earl v. Campbell, 14 How. Pr. 330; N. F. Ins. Co. v. Loomis, 11 Paige, 431; Champlin v. Parish, 11 Paige, 405 ; Edwards v. F. F. Ins. Co., 21 Wend. 467; McCrea v. Purmort, 16 Wend. 460; Clason v. Bailey, 14 Johns. 484; Hunter's Case, 1 Edw. Ch. 1; Ballard v. Walker, 3 J ohns. Cas. 60; Worrall v. Munn, 5 N. Y. 229.)</p>

Appeals in each of the above entitled proceedings from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 6, 1909, which denied it motion to vacate an order of Special Term directing the issuance of a writ of certiorari to review an order of the defendants directing the receivers of the Metropolitan Street Railroad system and the Central Park, North and East Rivet-Railroad Company to put into effect a system of universal…

The facts, so far as material, are stated in the opinion. The relator’s capital was not “ employed ” within the state within the meaning of the Tax Law. (People ex rel. F. G. R. Co. v. Miller, 179 N. Y. 49; People ex rel. N. R. H. Co. v. Roberts, 157 N. Y. 676; People ex rel. S. M. Co. v. Wemple, 150 N. Y. 46; People ex rel. W. H. R. Co. v. Miller, 181 N. Y. 328.) The relator was not “ doing business in this state.” (P. C. Co. v. McKeever, 183 N. Y. 98; People ex rel.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered September 28, 1908, which affirmed an order of Special Term requiring the plaintiffs to receive an amended answer.

The action is brought for conversion. The issues were tried before the court and a jury, and at the close of the trial counsel for the plaintiff and also for the defendant Ordemann asked that a verdict be directed in favor of his client. The court directed a verdict in favor of the plaintiff. Subsequently, upon motion, the court, set aside the verdict and dismissed the plaintiff’s complaint.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department,, entered March 11, 1908, which reversed a decree of the Monroe County Surrogate’s Court reducing the transfer tax upon a part of the estate of Frederick Cook, deceased, and granted a motion to dismiss the appeal from the original order fixing the tax.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 8, 1908, which reversed an order of Special Term granting a motion for an injunction pendente Hie and denied said motion.

Appeal, by permission, from an order of t'lie Appellate Division of the Supreme Court in the first judicial department, entered December 11, 1908, which reversed an interlocutory judgment of Special Term overruling a demurrer to the answer and sustained such demurrer.

In the year 1900 the plaintiff obtained a judgment by default against the defendant in an action founded upon a claim for legal services. Thereafter, in 1902, the default was opened and plaintiff directed to serve a complaint. Then the defendant again defaulted. Thus the matter stood, when he Sled a petition under the Federal Bankruptcy Act, and on January 5th, 1904, he obtained his discharge in bankruptcy.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the Eourth Judicial Department, entered May 27', 1908, which affirmed a judgment of the Monroe County Court rendered upon a verdict convicting the defendant of the crime of grand larceny in the second degree.</p> <p>The facts, so far as material, are stated in the opinion.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. This is both a trade-name and a trade-mark case. (Paul on Trade Marks, § 160; Dewitt v. Mathew, 18 Ky. L. R. 257; 35 S. W. Rep. 1113; Hoyt v. Hoyt, 143 Penn. St. 623; Cady v. Schultz, 19 R. I. 193; Newman v. Alvord, 51 N. Y. 189; Hopkinson on Trade Marks, § 11 ; Koehler v. Sanders, 122 N. Y. 65 ; Howard v. Henriques, 3 Sandf. 725 ; Glen & H. Mfg.

The nature of the action and the facts, so far as material, are stated in the opinion. Ample power was conferred upon the aqueduct commissioners under the Laws of 1883, chapter 490, to adopt any form of contract which they deemed necessary and proper for the protection of the city, and the adoption and execution of a contract under seal was directly within the powers expressly conferred.

Appeal, by permission, from a judgment of the Appellate . Division of the Supreme Court in the first judicial department, entered May 19,1908, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. The nature of the action and the facts, so far as material, are stated in the opinion. The facts as found by the trial court do not sustain the conclusions of law and do not justify the judgment rendered herein.

<p>Appeal from a judgment of the Kings County Court, rendered July 6, 1908, at a Trial Term upon a verdict convicting the defendant of the crime of murder in the first degree.</p> <p>The facts, so far as material, are stated in the opinion.</p>

<p>Appeal from a judgment of tlie Appellate Division of the Supreme Court in -the second judicial department, entered January 14, 1908, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The exclusion of the evidence of defendant’s witness Hartmann was error. (L. 1905, oh. 331, §§ 1, 2.)</p> <p>Ho reversible error was committed by the trial court in his ruling upon the admission of evidence. (Code Civ. Pro. § 834.)</p>

The defendant was sued as the accommodation indorser upon a note for $375 made by one Frank L. Fancher and acquired by the plaintiff bank before maturity in the regular course of its business.

<p>Pleading — vague or uncertain pleading — proceedings thereon — “ negative pregnant ” defined.</p> <p>Then an answer is in any respect vague or uncertain a plaintiff has the ri ght to compel a correction thereof by proper preliminary motion, and if he fails to do so the answer is to be construed most strongly against him. negative pregnant is a denial “ pregnant with the admission of a substantial fact which is apparently controverted; or, in other words, one which, although in the form of a traverse, really admits the important fact contained in the allegation.”</p> <p>Denials in the answer considered in connection with the allegations of the complaint. Held, that as the denials were sufficient in form and raised a material issue, and were not subject to the criticism of embodying a negative pregnant, the answer could not properly be stricken out as frivolous.</p>

The testator died in the year-1881, leaving him surviving a wife, who died two years later, and a son, who died in 1905. He left an estate consisting of personal property, which, after allowing for shrinkage and deducting debts, expenses, special legacies and commissions, apparently amounted to something less than $80,000.

The action was brought to recover damages for injuries sustained by respondent while a passenger on a train operated y the South Buffalo Eailway Company, caused by its collision with a freight train operated by the other appellant at grade crossing of the two roads.

Appeal in the first above-entitled action from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 23, 1908, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.

<p>Shipping—authority of master or shipbroker to incur expenses in loading and preparing a vessel for its voyage — liability of owners therefor.</p> <p>A shipmaster or shipbroker has a right to make his shipowners liable for such expenses as are necessary in loading their vessel and in supplying and preparing it for its voyage. The contention that the master has no authority to procure money with which to pay an indebtedness so contracted is not well founded.</p> <p>A hill was drawn by the master of a ship to obtain money to pay ar indebtedness he had a right to incur for the benefit of the ship. In ai action simply on the bill, brought against the owners in a foreign coun try, it was held, in accordance with the laws of that country, tha the master had no authority to bind them by such an instrument. Thi; action was then brought for money loaned and advanced. The tria court found that the shipbrokers and the master procured plaintiff, on th faith of the note, to advance money to be used and which was usee for the benefit of the defendants in paying the indebtedness so contract» by the master. Eelcl, that the foreign ad j udication is not a bar, since tha judgment was based solely on the note and the judgment proceeded solely on the ground that the master was not authorized to execute the note; hence the questions involved in this action neither were nor properly could be decided in that action. Held, further, that plaintiff is not confined to the void note, but may disregard it and recover for the money which it advanced to or for defendants.</p>

<p>Appeal from an order of the Appellate Division of the upreme Court in the second judicial department, entered December 27, 1907, reversing an. interlocutory judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and granting a new trial in an action to set aside a certain deed of gift and for an accounting.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered January 30, 1908, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 19, 1908, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial in an action to recover for the death of plaintiff’s intestate alleged to have occurred through defendant’s negligence.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered October 16, 1907, which affirmed an interlocutory judgment of Special Term overruling a demurrer to the complaint in a stockholder’s action against former officers thereof, alleging fraud and conspiracy and demanding an accounting. The following questions were certified: “ 1. Does the amended complaint state a cause of action ? “2.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered June 19, 1908, which annulled a determination of the State Board of Railroad Commissioners that public convenience and necessity required the construction of the railroad of the appellant herein.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 24, 1907, affirming a judgment in favor of plaintiff entered upon the report of a referee in an action for services alleged to have been rendered a decedent.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 28, 1908, upon an order which reversed a judgment in favor of plaintiff’s intestate, entered upon a verdict and an order denying a motion for a new trial and directed a dismissal of the complaint in an action to recover for an alleged breach of contract to purchase certain lands.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered November 20, 1908, which affirmed an order of Special Term sustaining a writ of habeas corpus and discharging the relator from custody.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 10, 1907, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term without a jury in an action to recover sa’ary as inspector of police "from' the date of the plaintiff’s illegal dismissal to the date of his reinstatement.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered July 30, 1908, affirming a judgment in favor of defendant entered upon the report of a referee in an action to recover the proceds of certain securities, assets of the Bank of Staten Island, which had been pledged with the defendant to secure it against loss in making clearings for said bank.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, éntered October 22, 1906, which reversed a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial and granted a new trial in an action to recover for the death of.plaintiff’s intestate alleged to have occurred through defendant’s negligence.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 6; 1909, which affirmed an order of Special Term denying a motion to set aside an order for the examination of certain of the defendants before trial.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered October 11, 1907, which reversed a judgment in favor of defendants entered upon a decision of the court on trial at Special Term dismissing the complaint and granting the defendants affirmative relief in an action to foreclose a mortgage on real property and granted a new trial.</p>