Volume 197 — New York Reports

<p>Public Service Commissions Law — purposes of the act—authority of commission to regulate the issuing of corporate stocks and bonds — commission empowered to prevent issuing of securities for fictitious debts, for the inflation of stocks and bonds or other improper purposes — commissioners cannot substitute their judgment for that of stockholders and directors and restrain the issuing of bonds for bona fide debts or legitimate purposes.</p> <p>The paramount purpose of the enactment of the Public Service Commissions Law was the protection and enforcement of the rights of the public. One of the legislative purposes in the enactment of the statute was to prevent the issue of stocks and bonds by public service corporations, if, upon an investigation of the facts, it was found that they were not for the purposes of the corporation enumerated by the statute and reasonably required therefor. It was not, however, designed to make the commissioners the financial managers of the corporation or to empower them to substitute their judgment for that of the board of directors or stockholders as to the wisdom of a transaction.</p> <p>While the ownership of property ordinarily carries with it the right of management, the duty devolves upon the owner to so manage as not to have it become a nuisance or unnecessarily infringe upon the rights of others. It was, therefore, evidently the legislative intent in the enactment of this provision that the commissioners should have supervision over the issuing of long-time bonds by the public service corporations enumerated in section 55 of the Public Service Commissions Law to the extent of determining whether they were issued under and in conformity with the provisions of the statute for the purposes mentioned therein, or whether they were issued for the discharge of the actual and not the fictitious debts of the company, or whether they were issued for the refunding of its actual obligations and not for the inflation of its stocks or bonds. Beyond this the power of the commissioners does not extend, unless it may pertain to the power to determine whether an obligation should be classified as operating expenses and as to whether such expenses should he paid by obligations running beyond a year.</p> <p>The Public Service Commissions Law (L. 1907, ch. 439, § 55) authorizes a common carrier, upon securing from the proper public service commission an order so to do, to issue stocks, bonds, notes or other evidence of indebtedness, among other things, for the discharge or lawful refunding of its obligations, and authorizes such commission to investigate for the purpose of enabling it to determine whether it should grant such an order. The relator made an application for an order to issue bonds secured by a mortgage already given for the purpose of paying outstanding indebtedness, the amount and validity of which indebtedness is not questioned. The indebtedness had accrued by the purchase of securities, which transaction the public service commission regarded as an unfortunate one for the company; tiiat it had paid more than the securities were worth and that the property so acquired had not been included in the mortgage. Although it conceded that the purchase was lawful and that the notes were valid obligations of the company, the commission withheld consent to the issuing of the bonds. Delator also applied for leave to issue like bonds to pay indebtedness incurred for the acquisition of other property which was refused, apparently upon the ground that the lands so acquired should have been mortgaged for the purpose of paying such obligations. Held, that the application of the relator to issue the bonds should have been granted.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The trial court erred in refusing to submit to the jury the question as to whether or not the payments made by the defendants Nettleton and Dewey were made in payment and discharge of the note in suit and not in recognition of or conceding any further liability. (Crow v. Gleason, 141 N. Y. 489; Adams v. Olin, 140 N. Y. 150; Pulver v. Esselstyn, 22 Misc.

The nature of the action and the facts, so far as material, are stated in the opinion. If from the evidence men of ordinary prudence and discretion might differ as to the character of the acts or if the inference to be drawn from or the significance to be attached to the testimony is doubtful, the question is one of fact for the jury. (Hayes v. Miller, 70 N. Y. 112; Nolan v. Railroad Co., 87 N. Y. 63.) The jury could have found that the defendant was negligent.

<p>Tax — what special franchise taxes may be deducted as paid, in valuation of special franchise under net earnings rule.</p> <p>The special franchise taxes, which may be deducted from the gross earnings of a corporation for the purpose of assessing a special franchise tax under the net earnings rule include only such as have accrued against and have in fact been paid by it during the period in which the net earnings are taken as the basis of the valuation. It is not proper to include as a part of the expenses of the corporation for that period the estimated amount of the special franchise tax then in process of ascertainment.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The attempted statutory foreclosure of the mortgage in 1861 by Hastings A. King was null and void and he obtained no title whatsoever by reason and on account of such foreclosure. (MacKenzie v. Alster, 64 How. Pr. 388; Anderson v. Austin, 34 Barb. 319; Van Vleck v. Enos, 88 Hun, 348; Mowry v. Sanborn, 68 N. Y. 153; Weir v. Birdsall, 27 App.

The facts, so far as material, are stated in the opinion. The determination of the Appellate Division being a final order in a special proceeding an appeal therefrom lies to this court.

The facts, so far as material, are stated in the opinion. The subpoena in question issued by the district attorney was a process issued out of a court, and was, therefore “ a mandate” under section 8 and section 3343 of the Code of Civil Procedure. (Code Cr. Pro. §§ 607, 609, 612-614, 619; 3 Eney. Diet. 3760; 23 Am. & Eng. Ency. of Law, 160; Perry v. L. F. I. Co., 6 Lans. 204; B. F. D. Co. v. Branstetter, 43 Pac.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 28, 1909, which affirmed an interlocutory judgment of Special Term overruling a demurrer to the complaint. The following question ivas certified : “ Does the complaint state facts sufficient to constitute a cause of action ? ” The nature of the action and the allegations, so far as material, are stated in the opinion.

This action was brought to recover damages for personal injuries alleged to have been sustained through the negligence of an employee of the defendant.

This action was brought to obtain an injunction restraining the defendants from the use of the name “Woodbury ” in connection with the sale of soap in such manner as to mislead the public into the belief that they were purchasing an article manufactured by plaintiff.

The nature of the action and the facts, so far as material, are stated in the opinion. Evidence of the physician, Dr. Andrews., regarding the deafness of the plaintiff, and that his hearing is permanently impaired as a result of the injury, was improperly received, not having been alleged in the complaint as a ground for damages. (1 Cliitty on PI. [6tli Am. ed.] Ml; Squier v. Gould, 14 Wend. 159; 2 Sutherland on Damages, 1161; Maloney v. Dows, 15 How.

<p>Equity—when answers to questions submitted to jury in equity action do not constitute a special verdict — appellate court has no power to order final judgment in favor of appellant unless the facts are conceded, uncontrovertibly established or found by the trial court.</p> <p>The court does not by submitting two of several questions of fact in an equity action to a jury for their answer constitute such answers a special verdict. It is in substance a tiial by the court without a jury, and a decision upon the whole evidence with the aid of the findings of the jury upon the questions of fact submitted to it.</p> <p>An appellate court has no power to render a final judgment in favor of the appellant unless the facts are conceded, uncontrovertibly established by record or otherwise, or found by the trial court. Questions of fact are to be tried and determined in a court of original jurisdiction, and where the judgment appealed from, in the form of a modification of the judgment of the trial court, is not sustained by the findings of fact, it is wholly unauthorized.</p>

This proceeding was commenced on the 22nd of January, 1903, by the board of rapid transit railroad commissioners of the city of New York to procure the appointment of commissioners of appraisal, pursuant to the Rapid Transit Act, so called, passed in 1891, and the various acts amending and supplementing the same.

The nature of the action and the facts, so far as material, are stated in the opinion. Plaintiff was not in arrears at the time of making the demand for withdrawal and for the return of the money paid in. (Richards on Ins. [2d ed.] 81; Butler v. A. L. Ins. Co., 10 J. & S. 342; Bradley v. J. H. L. Ins. Co., 20 App. Div. 22; Munn v. M. L. Ins. Co., 115 App. Div. 855; Ins. Co. v. Eggleston, 96 U. S. 572; Ins. Co. v. Wolff, 95 U. S. 326; Bean v. Ætna L. Ins. Co., 2 Hun, 358.)

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered October 1, 1909, modifying and affirming as modified a judgment in favor of plaintiffs entered upon a decision of the court on trial at Special Term which adjudged that defendant city of Buffalo specifically perform its contract to repay plaintiffs the purchase price of the premises known as the Main and Hamburg canal strip in the city of Buffalo, amounting to §901,000, with interest, as hereinafter stated.</p> <p>It is further adjudged, in substance, that the city he required to accept the reconveyance tendered by the plaintiffs ; and that they be deemed to have a lien on the fund on deposit with the defendant Commonwealth Trust Company, consisting of the purchase price, with accrued interest; and that plaintiffs have judgment against the city for the deficiency, if any. (Mr. Justice Williams, dissenting.)</p> <p>The following facts appear, among others, in the one hundred and five findings of the trial court: The legislature of this state, acting under power conferred by article VII, section 8, of the Constitution of 1894, enacted as follows: “ The canal known as the Main and Hamburg Street Canal situated in the city of Buffalo and which extends easterly from the westerly line of Main street to the westerly line of Hamburg street, shall immediately after the passage of this act cease to be a public canal or waterway, within this state, and the ownership, right, title and interest of the state of New York to the lands and premises included therein and connected therewith, shall vest absolutely in the city of Buffalo, its successors or assigns,” etc.</p> <p>In consideration of this conveyance the city of Buffalo was required to abate all nuisances along the line of said canal, and to fill the prism with solid material, and save the state harmless from all loss or damage which might be sustained by reason of claims arising out of the abandonment by the state of said canal. (Laws of 1898, chap. 295.)</p> <p>The legislature subsequently enacted chapter 578 of the Laws of 1899, entitled “ An act to authorize the city of Buffalo to sell and convey the Main and Hamburg Street Canal, and the lands and premises included therein and connected therewith, or any part or parts thereof.”</p> <p>It was found, in substance, that prior to July 1st, 1905, the city of Buffalo had filled the prism of the canal with solid matter and abated the nuisances formerly existing therein. Thereafter and about the 22d day of January, 1906, the common council of the city of Buffalo adopted a resolution directing the comptroller of the city to advertise for sealed bids for the sale of the premises covered by the Hamburg canal strip. This resolution described the strip in two pieces, one between Main and Washington streets, ivliicli is not affected by this litigation, and the other piece extending from Washington street to Hamburg street, excepting the intersecting streets with the grade crossing structures thereon, and providing for the right of the purchaser to cross and recross such intersecting streets, but not to interfere in any wise witli the grade crossing structures. This resolution contained no provision for reconveyance or payment of damages which might result from interference with the grade crossing structures for the purpose of crossing the streets mentioned.</p> <p>The strip involved in this litigation is about one mile long and one hundred and thirty feet wide, except in places it is somewhat narrower.</p> <p>It is unnecessary to consider in detail the bid and proposed sale under this resolution, as the mayor of the city of Buffalo returned this action of the common council without his approval.</p> <p>Thereafter and on or about the 23rd and 25th days- of April, 1906, a second resolution was passed by the common council to sell said premises to Lee, Higginson & Company, bankers of Boston, Massachusetts, at the bid of .$901,000, and directing the mayor to execute a good and sufficient deed under the city seal of said land and premises described in the resolution containing the following covenant which is controlling of the rights of the respective parties in this litigation. It reads: “ It is further mutually agreed and understood that in case the party of the first part shall not give good title and possession to the whole or any part of the premises, and of and to the rights and privileges herein set forth, then within twelve months from the date hereof the parties of the second part, upon a reconveyance of said premises as herein provided, shall receive the entire purchase price with three per cent, interest from the date hereof, upon a reconveyance, by a good and sufficient deed to the said party of the first part of the premises as hereby deeded, free and clear of liens or incumbrances of every kind, name and nature, other than those now on said premises; and also excepting taxes or assessments or other incumbrances in the nature thereof, placed thereon or assessed against said premises by the said party of the first part intervening the date hereof and such reconveyance. In the event that the parties of the second part, or their successors in interest, shall have paid any such taxes or assessments, or any incumbrances in the nature thereof, to the said party of the first part, the full amount of such payments shall be refunded by the said party of the first part upon such reconveyance. The grade crossing structures over or upon any of the streets herein excepted, and all approaches, and all things thereto pertaining, wherever the same shall have been changed, altered or added to by said parties of the second part, or their successors in interest, shall he in the same condition, wear and tear excepted, as at the date hereof, before the parties of the second part, or their successors in interest, shall be entitled to the repayment of the purchase price as herein provided.”</p> <p>The sale to Lee, Higginson & Company, as trustees, described as constituting the Buffalo Terminal Association, was duly made and a deed delivered to them by the city of Buffalo, dated the 29th day of June, 1906, Containing the above quoted covenant.</p> <p>At the time this conveyance- was executed, the tracks of the New York Central and Hudson River Railroad Company crossed certain portions of the premises in question. This occupancy of said railroad company had continued for more than fifty years prior to the conveyance.</p> <p>It was found “ That the city of Buffalo, and its successors, including the mayor, knew, prior to the 25th day of April, 1906, that said premises were being purchased by Lee, Higginson & Company on behalf of a steam railroad company, with the purpose and object of using the same for a railroad terminal, and among other things, of laying railroad tracks lengthwise upon said premises at grade.”</p> <p>It is found as a conclusion of law that “ The defendant, city of Buffalo, on the 29th day of June, 1906, had a good and indefeasible title to the premises known as the Main and Hamburg Canal in the city of Buffalo, and described in the deed to plaintiffs as trustees, dated June 29th, 1906, and of the whole thereof, except those portions occupied by the Hew York Central and Hudson River Railroad Company and by the Howard Iron Works, respectively, by adverse possession, which title, on said date, in and by the said deed, dated June 29th, 1906, became vested in the plaintiffs as trustees.”</p> <p>It was further found as a conclusion of law that “ The defendant, city of Buffalo, has not given the plaintiffs a good title to that portion of said premises occupied by the tracks of the Hew York Central and Hudson River Railroad Company near Chicago street, and the city of Buffalo cannot give and has not given the plaintiffs possession of that portion of said premises. That the defendant, city of Buffalo, has not given the plaintiffs good title and possession of and to the right and privilege to cross and recross Michigan street, Chicago street and Louisiana street, or either of them.”</p> <p>The court further found. “ That said tracks are maintained and operated by the Hew York Central and Hudson River Railroad Company across the premies conveyed by the said city of Buffalo to the plaintiffs, as trustees, under claim of right by such railroad company. That said approaches and tracks of the Hew York Central and Hudson River Railroad Company occupy 4,646 square feet of said premises.”</p> <p>It was further found “ That prior to the 29th day of June, 1906, the city of Buffalo, by its mayor, had notice of the claim of the Hew York Central and Hudson River Railroad Company that said tracks were operated by said railroad company under the rights granted by the State of Hew York prior to the time of the transfer of title of the Main and Hamburg Street Canal from the State of Hew York to the city of Buffalo.”</p> <p>It was further found “ That said premises described in the deed from the City of Buffalo to the plaintiffs, as trustees, cannot be used for railroad purposes bisected by the tracks of the New York Central and Hudson River Railroad Company and obstructed by said grade crossing structures and ramps which prevent the passage of trains across Michigan, Chicago and Louisiana streets. That said premises described in said deed from the City of Buffalo to the plaintiffs, as trustees, are practically valueless for railroad purposes bisected by said tracks of the New York Central and Hudson River Railroad Company and obstructed by said grade crossing structures and ramps which prevent the passage of trains across Michigan, Chicago and Louisiana streets.”</p> <p>It was further found “ That the' purchasers of said Main and Hamburg canal lines in the city of Buffalo well knew of the existence of said railroad tracks across the same at the time of the purchase thereof. That the plaintiffs at the time of the purchase of said property had no knowledge of the legal right of the New York Central and Hudson River Railroad Company to maintain said tracks across said premises.”</p> <p>The following facts were found, but need not be stated in extenso. It appears that the city of Buffalo lias kept the $901,000, paid for the premises, as a special fund in the Commonwealth Trust Company; that the plaintiffs made a due tender of a deed of reconveyance to the city, and that said tender has been kept good; that the plaintiffs filed their claim against the city of Buffalo in accordance with the provisions of its charter more than forty days prior to the commencement of the action.</p> <p>As bearing upon the knowledge of the city of Buffalo of the rights of the New York Central and Hudson River Railroad Company in the premises, it is found that on or about the 4th day of November, 1902, in compliance with a resolution of the commissioner of public works, the city removed said tracks of the New York Central and Hudson River Railroad Company crossing the Main and Hamburg canal near Chicago street; that thereafter and on the 4th day of November, 1902, an agreement, purporting to be executed by the city of Buffalo, by its commissioner of public works, and by the New York Central and Hudson River Railroad Company, was entered into whereby, among other things, said railroad company agreed to restore said tvacks to their previous condition and waive all claims for damages by reason of any interference therewith; and further agreed to institute legal proceedings within thirty days to determine the right to maintain said tracks and bridge over the Hamburg canal property. There is no finding that said legal proceedings were ever instituted.</p> <p>At the most, the purpose or intent of the provision for a reconveyance and the return of the purchase price “ in case the City shall not give good title and possession,” was to keep alive for twelve months the purchasers’ right to insist on having the same title to which the executory contract entitled them, and no more. (Shoemaker v. Hoyt, 148 N. Y. 428; Bull v. Willard, 9 Barb. 641; Close v. Zell, 141 Penn. St. 390.) There is no express warranty of title in the executory contract, and the law will imply none as to defects of which the purchasers had knowledge. Notice is sufficient to rebut the implication of warranty of title that might otherwise arise. (Gazely v. Price, 16 Johns. 267; Parker v. Parmelee, 20 Johns. 130; Burwell v. Jackson, 9 N. Y. 535; Leggett v. M. L. Ins. Co., 53 N. Y. 394; N. S. Inst. v. Jones, 37 N. J. Eq. 449; Fry on .Spec. Perf. [2d ed.j 228; Pom. on Cont. [2d ed.] § 157; Winne v. Reynolds, 6 Paige, 407; James v. Litchfield, L. R. [9 Eq.] 51; Ogilvie v. Foljanbe, 3 Meriv. 52; Cowley v. Watts, 22 L. J. [N. S.] Eq. 51; Matter of Gloag, L. R. [23 Ch. Div.] 320; Bash v. C. M. Co., 29 Wash. 50.) Mere notice being sufficient to rebut the implication of warranty it must necessarily follow that in every contract of sale where any part of the premises is in the open and visible use of a railroad company such contract of sale is made subject to such open and visible use. (Witbeck v. Cook, 15 Johns. 483; Hymes v. Estey, 116 N. Y. 501; Webster v. K. C. T. Co., 80 Hun, 420; 145 N. Y. 275; Koepke v. Bradley, 3 App. Div. 391; Bach-arch v. Von Eiff, 71 Hun, 533; Smith v. Hughes, 50 Wis. 620; Bennett v. Buchan, 76 N. Y. 386; Constant v. University of Rochester, 111 N. Y. 604; Daniels v. Davidson, 16 Ves. 251; James v. Litchfield, L. R. [9 Eq.] 50.) If the purchasers had any right to object to the title on account of the Hew York Central tracks they have waived any such right. (Ryan v. City of New York, 177 N. Y. 271; Matter of Gloag, L. R. [23 Ch. Div.] 320; Burnell v. Brown, 1 J. & W. Ch. 168; Tompkins v. Hyatt, 28 N. Y. 347; Matter of Cooper, 93 N. Y. 507; People v. Police Commissioners, 174 N. Y. 150; Ryan v. City of New York, 177 N. Y. 271; Embry v. Connor, 3 N. Y. 511; Grymes v. Sanders, 93 U. S. 55; Schiffer v. Dietz, 83 N. Y. 300; Cobb v. Hatfield, 46 N. Y. 533.) Plaintiffs’ evidence fails to establish that the Hew York Central Bailroad Company has a right to continue to maintain and operate the railroad tracks across the premises. The acts of the legislature which they claim confer vested rights, if so construed, are unconstitutional as being an appropriation of public property to private uses without the assent of two-thirds of all the members elected to each branch of the legislature as required by section 9 of article 7 of the Constitution of 1821 and section 9 of article 1 of the Constitution of 1816. (People ex rel. Purdy v. Comrs., 54 N. Y. 297; Rumsey v. N. Y. & N. E. R. R. Co., 130 N. Y. 38; McCormack v. Coddington, 181 N. Y. 467; Burbank v. Fay, 5 Lans. 387; Mattoon v. Monroe, 21 Hun, 74; Elwood v. City of Rochester, 43 Hun, 102; G. V. C. R. R. Co. v. Slaight, 49 Hun, 35.) The Appellate Division erred in modifying the judgment so as to allow plaintiffs interest at the legal rate on the purchase price for the period intermediate the attempted reconveyance and the entry of judgment. The contract of the parties for interest at three per cent is not confined to the time limited for the payment of the principal but is general and continues until the contract is merged in a judgment. (E. I. & R. M. Co. v. City of Elmira, 5 Misc. Rep. 191; Miller v. Burroughs, 4 Johns. Ch. 136; Van Buren v. Van Gaasbeck, 1 Cow. 496; Sullivan v. Fosdick, 10 Hun, 173; Andrews v. Keeler, 19 Hun, 87; Cromwell v. County of Sac, 96 U. S. 51; Patterson v. Graham, 16 N. Y. S. R. 703, 706; Genet v. Kisham, 21 J. & S. 43; Taylor v. Wing, 84 N. Y. 471; O. C. S. Bank v. Bd. of Education, 70 App. Div. 538.)</p> <p>The occupation of a portion of the conveyed premises by the Hew York Central and Hudson River Railroad Company under legislative authority, constitutes a material defect in title, and a failure to give possession, justifying a reconveyance of the property and recovery of the purchase price. (Hindley v. M. Ry. Co., 185 N. Y. 335; Matter of City of Buffalo, 68 N. Y. 167; Trustees of Columbia College v. Lynch, 70 N. Y. 440; Matter of St. Nicholas Terrace, 143 N. Y. 621; Daniel v. Shaw, 166 Mass. 582; Harlow v. Thomas, 15 Pick. 66; Eller v. Moore, 48 App. Div. 403; Huyck v. Andrews, 113 N. Y. 81; E. P. & C. Co. v. City of Buffalo, 195 N. Y. 286; Remson v. Wingert, 112 App. Div. 234.) Plaintiffs have not waived any of their rights. (C. W. & C. Co. v. N. P. C. Co., 190 N. Y. 1; B. T. Ry. Co. v. H. V. R. R. Co., 76 App. Div. 184; Karsch v. P. & S. Mfg. Co., 82 App. Div. 230; Newkirk v. N. W. Co., 66 App. Div. 639; Huyck v. Andrews, 113 N. Y. 81; Lossing v. Cushman, 195 N. Y. 386; Lese v. Lamprecht, 196 N. Y. 32; Uihlein v. Matthews, 172 N. Y. 154; Cobb v. U. E. Co., 191 N. Y. 475; F. Nat. Bank of Lyons v. Ocean Nat. Bank, 60 N. Y. 278; Kountze v. Helmuth, 140 N. Y. 432.) Plaintiffs are entitled to interest at the rate of six per cent from the date of the tender. (O'Brien v. Young, 95 N. Y. 428; Ferris v. Hard, 135 N. Y. 354; O. C. S. Bank v. Bd. of Education, 70 App. Div. 538; Lawrence v. Grout, 121 App. Div. 701; Persons v. Gardner, 122 App. Div. 167; Woerz v. Schumacher, 161 N. Y. 530; Blun v. Mayer, 189 N. Y. 153; Grote v. City of New York, 190 N. Y. 235.)</p>

The facts, so far as material, are stated in the opinion. The statute under which the defendant was prosecuted is not unconstitutional, but on the contrary it easily comes within the scope permitted by tbe police power. (People v. Beattie, 96 App. Div. 383; Comm. v. Alger, 7 Cush. 53; People ex rel.

The indictment contains two counts, each charging the defendant, Carlo Giro and one Frank Schleiman, jointly, with the crime of murder in the first degree. The first count alleges the killing of Sophie L. Staber by them while they were engaged in committing a felony, to wit, the crime of burglary. The second count sets forth the crime in the common-law form with reference to the same person and at the same time and place.

<p>Bankruptcy — “fixed liabilities,” released by a discharge in bankruptcy, defined — obligations which may arise under an executory contract are not “ fixed liabilities ” which may be discharged.</p> <p>Under the provisions of section 63 of the Bankruptcy Act authorizing debts of the bankrupt “ which are a fixed liability as evidenced by a judgment or instrument in writing absolutely owing at the time of the filing of the petition against him, whether then payable or not,” to he proved and allowed against his estate, two things must concur in order that such a debt may he provable, viz., there must be a fixed liability and it must he absolutely owing at the time of the filing of the petition in bankruptcy, although the time of the payment may he deferred.</p> <p>Defendants agreed to purchase and plaintiff agreed to sell certain shares of stock on a certain specified date with an option to defendants to make the purchase at an earlier date. Previous to the date so fixed, defendants, not having exercised the option to purchase, were adjudicated bankrupts. Held, that at the time of the adjudication no liability had arisen on the part of defendants which could he said to be one “ absolutely owing ” by (hem; that their bankruptcy was not necessarily a renunciation of their contract or a repudiation of their ability to perform, and their discharge did not affect their obligations under the contract.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. When, between the making of a contract for the sale of real property and the delivery of the deed, the building upon the premises is destroyed by fire, the loss falls upon the vendor. (Clinton v. H. Ins.

This action was brought by the plaintiff to obtain an injunction, which should permanently restrain the defendant from doing business under the name of the “ Corning Cut Glass Co.”, and to recover the damages sustained. The answer put in issue the allegations of the complaint, upon which the equitable relief was demanded. The case was tried before a referee, who made findings of fact, based upon the evidence.

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

<p>Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered May 13, 1908, affirming a judgment in favor of plaintiff entered upon a verdict.</p> <p>The nature of the action and the facts, so far' as material, are stated in the opinion.</p> <p>There was no evidence that any of the services charged in the account were rendered, and the admission of the account was reversible error. (Morrill v. Whitehead, 4 E. D. Smith, 239.) There was no evidence that the ledger was properly kept, and the admission of the account was reversible error. (Shipman v. Glynn, 31 App. Div. 425; Kent v. Garvin, 1 Gray, 148; Taylor v. Atkinson, 127 Mich. 633; Paine v. Sherwood, 21 Minn. 225; Smith v. Smith, 13 App. Div. 207; State v. Shinborn, 46 N. H. 497; Faxon v. Hollis, 13 Mass. 427.) The motions to strike out of the account the items of alleged services to the defendant’s nephew should have been granted, and the denials thereof were reversible errors. (Kinloch v. Brown, 1 Rich. L. 223; Deas v. Darby, 1 N. & McC. 436; Tenbroke v. Johnson, 1 N. J. L. 288; Kerr v. Love, 1 Wash. [Va.] 172; Est. of Henry Wheeler, 13 Phila. 373; Soper v. Veazie, 32 Me. 122; Poultney v. Ross, 1 Dallas, 238.)</p> <p>The books of the decedent were properly introduced in evidence. (Vosburgh v. Thayer, 2 Johns. 461; Van Name v. Barber, 115 App. Div. 593; Atwood v. Barney, 80 Hun, 1; Brooks v. Steen, 6 Hun, 516; McGuire v. H. F. Ins. Co., 7 App. Div. 575.)</p>

The facts, so far as material, are stated in the opinion. Dorothy Racilia Hoagland was designated to take by Hudson Hoagland through the instrumentality of the law, the means-by which many testators appoint their beneficiaries. (Sewall v. Roberts, 115 Mass. 262; Warren v. Prescott, 84 Me. 483; Hartwell v. Tefft, 19 R. I. 644; Matter of Kohler's Estate, 199 Penn. St. 455; Matter of Olney, 27 R. I. 495; Dodin v. Dodin, 16 App. Div. 42; Von Beck v. Thomsen, 44 App.

The nature of the action and the facts, so far as material, are stated in the opinion. As the defendant failed to show title by adverse possession his defense failed.

This is an action upon a promissory note for $68,000, made and delivered by the defendant to the plaintiff, bearing date February 12th, 1894, and payable on demand, with interest.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 6, 1908; Avhich reversed an order of Special Term dismissing a writ of habeas corpus, and directed the discharge of the relator from custody.</p> <p>The relator was a member of a firm of stockbrokers. Claiming to act under the provisions of article 15 of the General Tax Law (now article 12 of the Tax Law in the Consolidated Laws) in relation to the tax on transfers of stock, an agent of the state comptroller demanded of the relator the right to examine the books and papers of said firm for the purpose of ascertaining whether the relator’s firm had complied Avitli the provisions of said article, and when this demand was refused the relator Avas taken into custody in accordance Avith the provisions of said Tax Law as for a violation thereof. One of the grounds set forth in relator’s petition for the writ of habeas corpus and upon which his discharge was demanded was that the statute under which the examination of the books and papers was demanded was unconstitutional because it sought to make relator a witness against himself in a criminal case.</p> <p>The state is entitled to information concerning a man’s taxability. (C., etc., Assn. v. State, 156 Ind. 463.) Information in the form of books and papers cannot be withheld from legitimate search unless perhaps they are strictly private. (Boyd v. U. S., 116 U. S. 627; Adams v. State, 192 U. S. 585; Comm. v. Dana, 43 Mass. 329; Ex parte Clarke, 126 Cal. 235.) The papers of the relator’s firm were not private. (People v. Coombs, 36 App. Div. 284; 3 Wigmore on Ev. 3116, 3128.) These documents were properly receivable in evidence because none- of the defendants Avas in a position to claim any exclusive right to their possession as strictly private papers. (State v. Smith, 74 Iowa, 580; State v. Cummins, 76 Iowa, 133; People v. Henwood, 123 Mich. 317; State v. Donovan, 10 N. D. 203; Park v. Cotton Mill, 75 S. C. 560; State v. Armeno, 72 Atl. Rep. 216.) ifo compulsion was employed upon the relator Ferguson as a witness. (3 Wigmore on Ev. §§ 2263, 2264; People v. Gardner, 144 N. Y. 119; People v. Coombs, 36 App. Div, 294; People v. Kemmler, 119 N. Y. 580; People v. Truck, 170 N. Y. 203; People v. Furlong, 187 N. Y. 198; People v. Van Wormer, 175 N. Y. 188.)</p> <p>The provision of section 321 of the Tax Law authorizing the examination of the books and papers of any person, firm, company, association or corporation violates the provision of section 6 of article 1 of the Constitution of the state that no person shall be compelled in any criminal case to be a witness against himself. (People ex rel. Taylor v. Forbes, 143 N. Y. 227; Matter of Peck v. Cargill, 167 N. Y. 391; Councilman v. Hitchcock, 142 U. S. 562; Emery's Case, 107 Mass. 181; Boyd v. U. S., 116 U. S. 616; Matter of Kanter, 117 Fed. Rep. 356; Boyle v. Smithman, 146 Penn. St. 255; Whart. on Ev. §§ 533, 751; Lamson v. Boyden, 160 Ill. 613.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. Tlie clause, “ But this agreement shall not be construed in any manner as a lien or incumbrance or binding or affecting said described premises,” is a bar to this action.

On the 27th day of October, 1907, James Dillon, the defendant, was arrested, and on the next day he was arraigned before one of the magistrates of the city of New York and was charged by a complainant, in writing, upon oath, with having sold liquor on Sunday in violation of the Liquor Tax Law. A preliminary examination then took place before the magistrate and at the conclusion thereof the defendant was discharged.

The nature of the action and the facts, so far as material, are stated in the .opinion. The action was properly brought against the village of White Plains and a cause of action stated. (Fleming v. Vil. of Suspension Bridge, 92 N. Y. 368; King v. Vil. of Randolph, 28 App. Div. 25; Pettengill v. City of Yonkers, 116 N. Y. 558; Seeley v. City of Amsterdam, 54 App.

The action was brought by the plaintiff, as receiver of the Electric Mutual Casualty Association of Philadelphia, a corporation organized under the laws of the state of Pennsylvania, having its principal office in the city of Philadelphia, to recover the amount unpaid of a premium on an insurance policy and the unpaid assessments upon policies of insurance issued by the association to the defendant.

The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in admitting testimony of the defendant over the plaintiff’s objection and exception upon the collateral matters of Olaxtou’s misappropriation of money, the cruel beating of an apprentice and the reasons why Claxton was discharged. (Greenl. on Ev. [16th ed.] 450, 461b; Newcomb v. Griswold, 24 N. Y. 298; Lawrence v. Barker, 5 Wend. 301; Howard v. City Fire Ins.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 4, 1909, which affirmed an interlocutory judgment of Special Term overruling a demurrer to the complaint. The nature of the action and the facts, so far as material, are stated in the opinion. The tenant consumer in such a case as this is exempted from obligation to pay water rents. (2 Lewis Sutherland on Stat.

Motion to dismiss an appeal from a final judgment entered October 15, 1909, upon an order of the Appellate Division of the Supreme Court in the fourth judicial department, which reversed an interlocutory judgment of Special Term overruling a demurrer to the complaint and sustained such demurrer with leave to the plaintiff to plead over within twenty days upon payment of costs.

Motion to dismiss an appeal from a judgment entered October 11, 1909, upon an order of the Appellate Division of the Supreme Court in the second judicial department, which reversed an order of the trial court setting aside a verdict in favor of plaintiff and reinstated said verdict. The motion was made upon the ground that the appeal should not have been taken direct to the Court of Appeals.

The nature of the controversy and the facts, so far as material, are stated in the opinion. Plaintiff could convey a good, marketable and perfect title under the terms of the contract. (Doscher v. Wyckoff, 132 App. Div. 139; Rankine v. Metzger, 69 App. Div. 264; Green v. Green, 125 N. Y. 506; Ackerman v. Gordon, 67 N. Y. 63; Draper v. Montgomery, 108 App. Div. 63; Egbert v. MgGuire, 36 Misc. Rep. 245; Code Civ.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 9, 1909, which reversed an order of Special Term granting a motion for leave to amend the summons and complaint and denied said motion. The following questions were certified : “ 1.

<p>Insurance (life) — surrender value of lapsed policy — effect of failure to pay premium note.</p> <p>A policy of life insurance provided tiiat in case of the failure of the insured to pay a premium after the policy had been in force three full years it should be continued for its full amount, as provided in a table which was made a part of the policy or for a reduced amount of paid-up insurance, as also provided by said table. The table was headed “Table of guarantees, if payment of premiums is discontinued. Provided there is no indebtedness against this Policy. (Pursuant to the Insurance Law (Chapter 690, Laws of 1893) of the State of New York.)” It provided for continued insurance until October 30,1906, if premiums are paid to December 30,1898, and until June 20, 1911, if premiums are paid to December 30,1899. The insured paid the premiums thereon for three years. A note was given and accepted for the premium due December 30, 1898. Thereafter he wholly defaulted in his obligations • to the insurer and died October 31, 1906. Held, that the policy, including the table therein, was intended as a compliance with said statute; that as the statute requires the insurer to give continued insurance for an amount computed as therein directed “after deducting any indebtedness of the insured” the insurer rightfully deducted the amount due on the note of the insured in computing the time for which the insured was entitled to continued insurance, andas the time so computed expired prior to the death of the insured his personal representative is not entitled to recover the full amount of the policy.</p>

<p>Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 28, 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 contention that owing to the fact that this building was five stories in height the derrick was used in violation of section 20 of the Labor Law providing that, “ If a building in course of construction is five stories or more in height, no lumber shall be hoisted or lifted on the outside of such building” cannot be sustained. (L. 1899, ch. 192, § 1; L. 1905, oh. 520, § 1.)</p> <p>The building was five stories or more in height and was within the prohibition of the statute forbidding the hoisting of materials outside the building. (Sutherland on Stat. Const. §§ 585, 586; State v. Powers, 36 Conn. 77.)</p>

Cross-appeals from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 1Y, 1909, which modified and affirmed as modified an order of Special Term granting a motion for a peremptory writ of mandamns to compel the board of county canvassers of the county of New York to recanvass and recount certain ballots voted at the last general election which had been rejected as void or objected to and laid aside by inspectors of…

Appeal in the first above-entitled proceeding from an order of the Appellate Division of the Supreme Court in the second judicial department, entered December 30, 1909, which affirmed an order of' Special Term granting a motion for a peremptory writ of mandamus to compel the defendant inspectors of election to reconvene and canvass and count certain ballots voted at the last general election which were marked as “ protested as marked for identification.” Appeal in the second…

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 22, 1909, 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 plaintiff failed to show that her injury was caused by any negligence on the part of the defendants. (Perez v. Sandowitz, 180 N. Y. 397; Hilsenbeck v. Guhring, 131 N. Y. 674; Idel v. Mitchel, 158 N. Y. 134; Saverio- Celia v. B. U. P. Co., 55 App. Div. 98; McCabe v. Kestens, 11 Misc. Rep. 272; Alperin v. Earle, 55 Hun, 211; Curran v. Flammer, 49 App. Div. 293; Flood v. Huff, 29 Misc. Rep. 351; Schanda v. Sulzberger, 7 App. Div. 221; Aldrich v. Laul, 126 App. Div. 427; Gorman v. White, 19 App. Div. 324; Brugher v. Buchtenkirch, 167 N. Y. 153.) This areaway was not provided for use by the children as a place for them to play, and the defendants should not be held liable for an injury resulting from such unauthorized use. (McAlpin v. Powell, 70 N. Y. 126; Miller v. Woodhead, 104 N. Y. 471; Mayer v. Laux, 18 Misc. Rep. 671; Kelly v. Smith, 29 App. Div. 346; Walsh v. Frey, 116 App. Div. 527; Teetsel v. Simmons, 88 Hun, 621; Kern v. DeC. & D. S. P. Co., 125 N. Y. 50; White v. Eidlitz, 19 App. Div. 256.) If there was negligence on the part of any one it was the negligence of the person who opened this door just before the plaintiff’s injury, in failing to close it again. (Laidlaw v. Sage, 158 N. Y. 73; Earle v. C. S. S. Co., 103 App. Div. 21; Saverio-Cella v. B. U. R. Co., 55 App. Div. 98.)</p> <p>There was sufficient evidence of negligence to warrant its submission to the jury. (Earl v. Crouch, 16 N. Y. Supp. 770; 131 N. Y. 613; Ramsey v. N. C. Co., 49 App. Div. 11; Schmidt v. Cook, 12 Misc. Rep. 449; Kunz v. City of Troy, 104 N. Y. 344; Skelton v. Larkin, 82 Hun, 388; 146 N. Y. 365; Sturmwald v. Schreiber, 69 App. Div. 476; Devine v. N. W. P. Co., 95 App. Div. 194; Garrett v. Sommerville, 98 App. Div. 206; Torgessen v. Schultz, 192 N. Y. 159; Staller v. R. Mfg. Co., 195 N. Y. 478.)</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered November 8, 1907, which affirmed a determination of the Appellate Term reversing a judgment in favor of defendants entered upon' a decision of the Municipal Court of the city of New York, and directed final judgment in favor of plaintiff. The nature of the action and the facts, so far as material, are stated in the opinion.

The facts, so far as material, are stated in the opinion. An attorney has a general possessory lien on his client’s papers. (Matter of Knapp, 85 N. Y. 284; Matter of Wilson, 12 Fed. Rep. 235; U. S. v. Boyd, 79 Fed. Rep. 858; Jones v. Diefendorf, 12 Wend. 261; Schurtz v. Jenney, 21 Hun, 33; Cunningham v. Widing, 5 Abb. Pr. 413; Matter of Russell, 1 How.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 8, 1908, which reversed an interlocutory judgment of Special Term sustaining a demurrer to the complaint and overruled such demurrer.

The nature of the action and the facts, so far as material, are stated in the opinion. Under the will of Eschlimann, as finally interpreted by the judgment in Lamer v. Bender, the executors named in that will had no power of sale of plaintiff's eleven-seventeenths of the premises in question.

Appeal, by permission, from an order of the Appellate Divison of the Supreme Court in the first judicial department, entered July 13, 1909, which reversed an order of Special Term granting a motion to set aside the service of a summons and complaint and denied said motion. The facts, so far as material, are stated in the opinion.

<p>Murder—Committed While Engaged in Committing Burglary—Trial— Refusal to Charge Various Degrees of Murder.</p> <p>On the trial of defendant on an indictment for murder alleged to have been committed by him while he was engaged in the commission of a burglary, the trial judge was requested to “charge the various degrees of crime;” and an exception was taken to his refusal, whereupon the court added, “ the jury must either find the defendant guilty of murder in the first degree or not guilty,” to which instruction an exception was taken. Eeld, that the trial judge committed no error either in the refusal to charge as requested or in the additional instruction to the jury; but that the conditions are exceptional which warrant a refusal to instruct the jury as to their power to convict of a lower degree of the crime charged for which the defendant is upon trial, and great care should be observed not to withhold such instruction unless the case is one where there is no possible-view of the facts which would justify any other verdict except a conviction of the crime charged or an acquittal.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 25, 1909, which affirmed an order of Special Term denying a motion for an order directing the respondents herein to execute and deliver to the appellant a deed of certain property claimed to have been purchased on a foreclosure sale in the above-entitled action.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The order appealed from is reviewáble here. (Archer v. Archer, 155 N. Y. 415; Wetmore v. Wetmore, 162 N. Y. 503; Wendt v. Walsh, 164 N. Y. 154.)</p> <p>The appeal should be dismissed. (Code Civ. Pro. § 190; Van Arsdale v. King, 155 N. Y. 325; Merriam v. N. & P. Co., 155 N. Y. 136; Haebler v. Myers, 132 N. Y. 363; Peri v. N. Y. C. & H. R. R. R. Co., 152 N. Y. 521.)</p>

On the 26th of March, 1908, the defendant was indicted by a grand jury in attendance at a Trial Term of the Supreme Court sitting in the county of Monroe for the crime of criminally receiving stolen property, in that he, being a junk dealer, purchased stolen copper wire belonging to a telephone company without ascertaining by diligent inquiry that the person or persons selling the same to him had a legal right to do so.

This action was brought by the receiver of a domestic corporation known as the Sterling Hotel Company, to set aside a chattel mortgage given by the latter upon the ground, among others, that two-thirds of the stockholders had not consented thereto as required by statute.

The nature of the action and the facts, so far as material, are stated in the opinion. Whether or not the shafting was properly guarded was a question of fact for the jury. (G. F. P. C. Co. v. T. Ins. Co., 162 N. Y. 899; Dillon v. N. C. T. Co., 181 N. Y. 215.) Whether or not the defendant was negligent in failing to warn the plaintiff about the presence of the shaft under the table was a question of fact for the jury.

The action was brought to recover the sum of $5,000, the amount of an accident insurance policy, upon the allegation that the insured was killed by the accidental discharge of a gun while hunting. The defendant pleaded a breach of warranty and other defenses. The further material facts are stated in the opinion. There was a breach of warranty as to the name of the person whose life was insured.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered June 3, 1909, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial.</p> <p>The action was brought to recover damages for the death of plaintiff’s intestate, a boy between the age of eight and nine at the time of his death, claimed to have been caused by the negligence of the defendant.</p> <p>Defendant’s main four tracts run through the village of Oriskany substantially on an easterly and westerly line. In said village a switch track diverges from one of the main tracks and runs in a southeasterly direction several hundred feet to a foundry. Between the point of divergence and the foundry and between the switch track and the main tracks at and for some time before the date of the accident, there was situated a coal shed which was supplied with coal by the defendant, and from which one Sweet drew and distributed coal to his customers in the coal business. The only way to reach this coal shed from the nearest public highway was by a private passageway which ran for some distance southeasterly on a line practically parallel with the switch track and when about opposite the coal shed turned easterly over said latter track to said shed. This passageway had been used for some time by Sweet in procuring and delivering coal from the shed above mentioned and also at times prior to the accident had been used by people going to a milk depot situate on the same side of the switch track as the coal shed and beyond the latter towards the foundry. On the occasion of the accident, which was in daylight, the intestate, under a permission given by his mother to ride in one of Sweet’s coal wagons, was riding in an open wagon with one Gardner who on plaintiff’s theory was driving to the coal shed. Intestate had no purpose except that of pleasure and had no relation to Sweet or the driver except the apparent permission to ride as above stated. As Gardner drove across the track to the coal shed the wagon was struck by a locomotive backing at a slow rate from the main track over the switch track to the foundry and the intestate was killed.</p> <p>Defendant’s alleged negligence was in its failure to give signals of the approach of the engine. It was practically undisputed that the man in charge of the wagon was guilty of contributory negligence and there was no evidence that the boy made any attempt to discover the approach of the engine.</p> <p>Where there is positive • affirmative evidence that the bell and whistle were sounded as against evidence that they were not heard, coupled in each instance by the witness’ admission that he was not listening to or was not paying attention, no question is presented for the jury. (Culhane v. N. Y. C. & H. R. R. R. Co., 60 N. Y. 133.)</p> <p>The question of the defendant’s negligence was properly left to the jury upon the conflict of evidence, and there is abundant evidence upon which to base their finding and the same should not be disturbed. (Obenland v. B. H. R. R. Co., 127 App. Div. 418; McGovern v. N. Y. C. & H. R. R. R. Co., 67 N. Y. 417; Brown v. N. Y. C. R. R. Co., 32 N. Y. 597; Flanigan v. N. Y. C. & H. R. R. R. Co., 70 App. Div. 505; Barry v. N. Y. C. & H. R. R. R. Co., 92 N. Y. 289; Swift v. S. I. R. R. Co., 123 N. Y. 645; Dyer v. Erie R. R. Co., 71 N. Y. 228; Eaton v. Erie R. R. Co., 51 N. Y. 544.)</p>

Appeal, by permission, from a judgment entered July 1, 1909, upon an order of the Appellate Division of the Supreme Court in the first judicial department, which reversed a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial and directed a dismissal of the complaint.

There is no evidence in the case that any payments have been made by way of principal or interest upon the mortgage by any of the defendants within twenty years preceding the commencement of this action. (Baldwin v. Martin, 14 Abb. [N. S.] 79; Hulbert v. Nichol, 20 Hun, 454; Mason v. Henry, 152 N. Y. 529; Wood on Limitations [3d ed.], 347; Murphy v. Walsh, 113 App.

The nature of the action and the facts, so far as material, are stated in the opinion. Halloek was not free from contributory negligence. (McHugh v. M. R. Co., 88 App. Div. 554; Murphy v. Deans, 101 Mass. 455; T. H., etc., R. Co. v. Graham, 95 Ind. 291; Ludd v. Wilkins, 118 Ga. 525; Marble v. Ross, 124 Mass. 44; Forbes v. King, 84 Penn. St. 230; 7 Am. & Eng.

<p>Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered May 18, 1909, which reversed an order of Special Term granting a motion for an injunction pendente Hie.</p> <p>The following questions were certified: '■'•First. Should the defendant be restrained from caring for the streets in Lawrence Park because in so doing he violates section 10 of article VIII of the Constitution of the State of New York. ' “ Second. Does chapter 93 of the Laws of 1907 violate section 18 of article III of the Constitution of the State of New York because it contains provisions which in number and character restrict its operation and localize it ?</p> <p>“ Third. Are the questions raised by the plaintiff of sufficient importance to require the court to restrain the defendant until the constitutional and other questions can be determined after a trial of the issues ? ”</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>It having been shown, and it appearing in the act itself, that these so-called streets are private, to expend public time or money upon them is to give the money or property of the village to the individuals or corporation owning the streets and adjacent property, and violates section 10 of article VIII of the Constitution of the State. (Stemmler v. Mayor, etc., 179 N. Y. 485; Bush v. Board of Supervisors, 159 N. Y. 212; People ex rel. Waddy v. Partridge, 172 N. Y. 305; Matter of Green, 166 N. Y. 485; Matter of Chapman v. City, 168 N. Y. 80; Matter of Strauss, 44 App. Div. 425; Matter of Jensen, 44 App. Div. 509; Matter of Chapman, 57 App. Div. 583; Rockerfeller v. Taylor, 69 App. Div. 176, 183; Weismer v. Vil. of Douglas, 64 N. Y. 91; Fox v. M. & H. R. H. Society, 165 N. Y. 517; Matter of Mahon v. Bd. of Education, 171 N. Y. 263.)</p> <p>Section 170 of the Tillage Law is not in conflict with section 10 of article Till of the Constitution, for the indebtedness incurred in maintaining the streets is for a village purpose. (Holder v. City of Yonkers, 39 App. Div. 1; Weismer v. Vil. of Douglas, 64 N. Y. 91; Matter of Mayor, etc., 99 N. Y. 569; Parsons v. Van Wyck, 56 App. Div. 329; S. P. Assn. v. Mayor, etc., 152 N. Y. 257; Matter of Burns, 155 N. Y. 23; People ex rel. Murphy v. Kelly, 76 N. Y. 475; Ward v. Davis, 3 Sandf. 502.) Under the General Tillage Law the village trustees have the power to care for all streets which the public have the right to use, and the public have the right to use the streets in question. (L. 1897, ch. 414, §§ 83, 140,141; Cook v. Harris, 61 N. Y. 448; Matter of Hunter, 163 N. Y. 542; Gerard on Titles, 749; People v. Underhill, 144 N. Y. 316; Lord v. Atkins, 138 N. Y. 184; Palmer v. E. R. G. Co., 115 App. Div. 677; 2 Dillon on Hun. Corp. § 642; Witte v. Koerner, 123 App. Div. 824; McManus v. Butler, 51 Barb. 436; Holdane v. Trustees, etc., 21 N. Y. 474; People v. Loehfelm, 102 N. Y. 1; City of Cohoes v. D. & H. C. Co., 134 N. Y. 397.)</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered March 12, 1909, which affirmed an interlocutory judgment of Special Term overruling a demurrer to the complaint. The nature of the action, the question certified, and the facts, so far as material, are stated in the opinion. Plaintiff was under no legal obligation to even offer the paper purporting to be Mr. Anderson’s will for probate. (11 Am. & Eng.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered August 11,1908, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial. The action was brought by ¡fiaintiff’s intestate to recover damages for the injury caused to her reputation by a libelous article published of her in the defendant’s newspaper.

The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in permitting witnesses to testify that the statements made by the defendant Nelson at the time of the slander did not injure Linehan’s reputation in their estimation, and that they did not think much about it afterwards.

The nature of the action and the facts, so far as material, are stated in the ojñniou. Whether the alleged libel is a privileged communication or not is a question for the court. (Lovell Co. v. Houghton, 116 N. Y. 520; Odgers on Libel & Slander [4th ed.], 217.) The telegram upon which plaintiff’s case was based is a privileged communication, and the Appellate Division erred in holding that an occasion of privilege was not shown.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 13, 1907, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term. The nature of the action and the facts, so far as material, are stated in the opinion.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered January 24, 1908, 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 personal injuries alleged to have.been sustained through defendant’s negligence.</p>

Cross-appeals from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 21,1908, modifying and affirming as modified a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term, a jury having been waived, in an action to recover for the alleged conversion of certain stocks.

<p>Appeal from an order of the Appellate Division of the -Supreme Court in the second judicial department, entered June 28, 1907, reversing a 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 restrain the operation of the defendant’s railroad upon an elevated structure in front of plaintiff’s premises.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered August 31, 1909", which confirmed the report of commissioners of estimate and assessment in the above-entitled proceedings which report awarded to the respondents damages for the extinguishment of private easements in certain streets which were closed in connection with such opening.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 9, 1907, 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 damages for an alleged assault.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 21,1907, modifying, and affirming as modified, a judgment entered upon a decision of the court on trial at Special Term in an action of partition.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial departmeut, entered January 24, 1908, which affirmed an interlocutory judgment of Special Term overruling a demurrer to the complaint in an action to recover money alleged to be due upon a subscription for corporate stock. The following questions were certified : “1.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 10, 1908, which affirmed a determination of the Appellate Term affirming a judgment of the Municipal Court of the city of New York in favor of the defendant entered upon a dismissal of the complaint in an action to recover for an alleged breach of contract.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 6, 1908, which reversed a judgment of the Cayuga County Court in favor of defendant entered upon a dismissal of the complaint and an order denying a motion for a new trial and granted a new trial in an action to recover for personal injuries alleged to have been sustained through defendant’s negligence.</p>

<p>Motion to enlarge time for argument under section 536 of the Code of Criminal Procedure.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered December 18, 1906, which reversed a judgment in favor of plaintiff entered upon a verdict in an action to reform a policy of fire insurance and to recover upon the policy as reformed.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered October 7, 1908, sustaining defendant’s exceptions ordered to be heard in the first instance by the Appellate Division, and granting a motion for a new tidal in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence sf the defendant, his employer.</p>

Appeal froin a judgment of the Appellate Division of the Supreme Courj; in the first judicial department, entered May 14, 1909, affirming a judgment in favor of plaintiff entered upon a verdict',directed by the court in an action by the plaintiff as trustee in bankruptcy to recover from the surety on the bond of a previously appointed assignee for the benefit of creditors of said bankrupt a certain sum adjudged to be due from said assignee to said trustee in accounting…

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 14,1909, which dismissed a writ of certiorari and affirmed the proceedings of the defendant commissioners in dismissing the relator’s claim for want of jurisdiction.</p>

<p>Appeal from a judgment of the Supreme Court rendered January 5, 1909, at a Trial Term for the county of -New York, upon a verdict convicting the defendant of the crime of murder in the first degree.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial departments entered October 15, 1909, which affirmed an order of Special Term appointing a receiver of the defendant Crandall t% Godley Company and restraining said company and its directors from reducing its capital stock or distributing its assets.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered October 22,1909, which affirmed a decree of the New York County-Surrogate’s- Court denying probate of a paper propounded as the will of Hiram H. Lamport, deceased.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered November 27, 1908, affirming a judgment in favor of plaintiff and an order denying a motion for a new trial in an action by an employee to recover for personal injuries alleged to have been sustained through the defendant’s negligence.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered January 6,1910, which modified and affirmed as modified an order of Special Term directing a recount of certain void and protested ballots and the addition or exclusion thereof.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 9, 1909, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action to obtain a construction of the will of Mary E. Bayley, deceased.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the tirst judicial department, entered February 11,1909, which reversed a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term and granted a new trial in an action to recover for the death of plaintiff’s intestate, alleged to have been occasioned by the negligence of defendant, his employer.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 12, 1908, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court and an order denying a motion for a new trial in an action to determine the validity of a written instrument propounded as the will of Neal O’Donnell, deceased.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 3, 1909, 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 personal injuries alleged to have been sustained through defendant’s negligence.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 10, 1909, affirming a judgment in favor of plaintiffs entered upon a decision of tlio court on trial at Special Term and dismissing appeals from orders directing service of the summons by publication upon defendants other than the appellant herein in an action to establish a right to the amount due upon a policy of life insurance and to recover the same.</p>