Volume 199 — New York Reports

<p>(1) . Labceny—Embezzlement by Stockbroker—Penal Code, Sec. 528, Sub. 2.</p> <p>Where a broker, directed to buy stock for a customer, bought it on marginal account in the name of his own firm, and deposited a check, which was received from the customer for the specific purpose of paying for the stock and commissions thereon, in the bank account of his firm and drew upon it for individual and firm indebtedness, without paying for the stock or receiving it for his customer, and was thereafter declared a bankrupt, .the broker is guilty of embezzlement within the statutory definition of that form of larceny. Penal Code, § 528, subd. 2.</p> <p>(2) . Same—Trial—Charge—Exceptions.</p> <p>Where the court, on the trial, had charged that the important, crucial and controlling question for the jury was whether the defendant took and appropriated the customer’s money with criminal intent, and that before they could find the defendant guilty they must find that he intended to defraud the customer of his money, it was not error—when requested to charge “ that even though the jury believed that the defendant had no right” to have the customer’s money deposited in the bank account of his firm, “ and had no right to check against the money so deposited, yet, unless they find as a fact beyond a reasonable doubt that when he signed some one ®f the checks on that account he did so with criminal intent, they must find the defendant not guilty”—for the court to rule: “I so charge; with that charge should be the statement that every person is presumed to intend the consequences of his acts.” This statement, in no respect, qualified the instruction that the jury must find a criminal intent to have existed when the defendant appropriated the money to uses other than that of paying for the stock.</p>

Also, appeal from an order overruling a demurrer to the indictment and from an order denying a motion for a new trial. On the 29th of December, 1909, the defendant was convicted of the crime of murder in the first degree upon an indictment charging that on the 22d of August, 1909, at the city of Clean, in the county of Cattaragus; with deliberation and premeditation, he did “kill and murder” one Viola Hughes by shooting her with a revolver.

<p>Transfer tax — domicile — husband and wife — when law of actual domicile and not of matrimonial domicile controls disposition of movable property owned by hxisband at time of his death.</p> <p>Where there is a change of domicile by husband and wife, the law of the actual domicile, and not of the matrimonial domicile, governs as to all future acquisitions of movable property; and as to all immovable property, the law rei sites.</p> <p>A husband and wife who married in France under the laws of which country a wife is given a community interest in whatever property her husband had at the time of the marriage, and such as he thereafter acquires, subsequently became residents of this country and acquired real and personal property of which the husband died seized and possessed. Held, that the property acquired by the decedent during his residence with his wife in this state is controlled by our laws, and on his death it is transferred within the meaning of our tax laws, and liable to payment of transfer tax under the statute.</p> <p>Under the French Code, tacit ante-nuptial agreements are not recognized, but they must be express agreements which cannot be changed after the celebration of the marriage, while under our statute every agreement made in consideration of marriage is void unless it be in writing, except a mutual promise to marry. Hence in the absence of an express ante-nuptial contract we cannot recognize tacit contracts of this character.</p>

The facts, so far as material, are stated in the opinion. The order appealed from is a final order in a special proceeding and is appealable to this court. (Matter of Earnshaw, 196 N. Y. 130; Matter of Blewitt, 131 N. Y. 541; 138 N. Y. 148; Matter of King, 168 N. Y. 53; Matter of Fitzsimmons, 174 N. Y. 15; Matter of Velleman v. Rohrig, 193 N. Y. 439.) The application to supersede the order appointing the committee was properly made in this state. (Matter of Kingsley, 160 Fed.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered Feb-’ ruary 16, 1910, winch affirmed an order of Special Term directing a receiver, theretofore appointed in an action for dower, to pay to the respondent herein the excess rents and profits collected from certain premises which had been sold to said respondent and discharging the said receiver from any further duties with regard to said premises.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The dower of the widow having been admeasured in an action brought for that purpose, it attached to the land for the life of the widow, and the land cannot be freed by the order of the court herein appealed from. (Egan v. Walsh, 11 J. & S. 402; L. 1896, ch. 547, §§ 131, 139, 177, 203.) In so far as the decree in Jones v. Kelly appears to modify the decree in Conlon v. Kelly, it is void and of no effect. (Matter of Mason, 120 App. Div. 738; Slotus v. Foote, 172 N. Y. 372; House v. Lockwood, 137 N. Y. 259; Springer v. Bien, 128 N. Y. 99; Stannard v. Hubbell, 123 N. Y. 520; Stowell v. Chamberlain, 60 N. Y. 272; Woodgate v. Fleet, 44 N. Y. 1; Campbell v. Carsalus, 25 N. Y. 613; Rudd v. Cornell, 171 N. Y. 114; C. C. Bank v. Judson, 8 N. Y. 254; Matter of Walker, 136 N. Y. 29.) The Court of Appeals has jurisdiction to hear and determine the questions presented by the order appealed from herein, pursuant to the provisions of subdivision 1 of section 190 of the Code, and the Constitution, article 6, section 9. (Peri v. N. Y. C. & H. R. R. R. Co., 152 N. Y. 521; People v. City Bank, 96 N. Y. 32; Kingsland v. Fuller, 157 N. Y. 507; Merges v. Ringler, 158 N. Y. 701; Parish v. Parish, 175 N. Y. 181; Matter of Cutting, 49 App. Div. 388; State v. District Court, 72 Pac. Rep. 613.)</p> <p>This appeal should be dismissed for want of jurisdiction. The order appealed from is not a final order in a special proceeding. It is an order in the action, though made after judgment. (Const. of N. Y. art. 6, § 9; Code Civ. Pro. § 190; Van Arsdale v. King, 155 N. Y. 325; G. T. Co. v. P., R. & N. E. R. R. Co., 160 N. Y. 1; People v. A. L. & T. Co., 150 N. Y. 117; Matter of Attorney-General, 155 N. Y. 441; N. Y. S. Co. v. S. G. & E. Co., 156 N. Y. 645; Whalen v. Stewart, 194 N. Y. 495; Merriam v. Wood, etc., Co., 155 N. Y. 136; Jewelers’ Mercantile Agency v. Rothschild, 155 N. Y. 255; Johnstown v. Wade, 157 N. Y. 50; Matter of Small, 158 N. Y. 128; K. T. Co. v. Railway Co., 197 N. Y. 391.) The appeal should be dismissed for want of jurisdiction, because the order appealed from rested in discretion. (Dawson v. Parsons, 137 N. Y. 605; Alderson on Receivers, §§ 7, 9, 49; Mabon v. O. E. Co., 156 N. Y. 196; Connolly v. Kretz, 78 N. Y. 620; Matter of Attorney-General, 155 N. Y. 441; Gittleman v. Feltman, 191 N. Y. 205; Schneider v. City of Rochester, 155 N. Y. 619; Matter of Droege, 197 N. Y. 44; M., etc., R. R. Co. v. Soutter, 154 U. S. 540.) The receiver was properly discharged as to the property sold, as there was thereafter no necessity for continuing the receivership as to such premises. (High on Receivers [4th ed.], § 832; Alderson on Receivers, § 654; M., etc., R. R. Co. v. Soutter, 2 Wall. 510.) The widow’s, rights in the property sold were divested by the conveyance made in accordance with the judgment in Jones v. Kelly, and her rights attach to the proceeds of the sale. She is estopped from asserting the contrary. (Davis v. Wakelee, 156 U. S. 680; Thorn v. De Breteuil, 179 N. Y. 64; Baird v. Mayor, etc., 74 N. Y. 382; Jones v. Kelly, 63 App. Div. 614.)</p>

<p>Tax—invalid assessment under special statute — remedy of taxpayer who has paid tax levied under invalid assessment.</p> <p>Chapter 74 of the Laws of 1909 is valid, not as a curative statute in the ordinary sense, validating a purported assessment as then existing by-dispensing with some step theretofore required but not jurisdictional, but is valid as providing for taking necessary and jurisdictional steps at a later stage than usual in the assessment proceeding, and by which steps, when taken, there might be secured for the first time a completed and valid assessment. This is the rule as laid down on the former appeal in this action (196 N. Y. 270).</p> <p>Relator having paid its taxes under the coercion and duress of a purported assessment invalid in fact but claimed and appearing to be valid and enforceable, under ordinary circumstances would be entitled to have those taxes refunded with interest and without prior demand.</p> <p>An assessment having been secured under the statute of 1909 and proceedings had thereunder, which is completed, valid and enforceable at the same amount as the original purported one, to avoid the circuitous process of paying to relator the principal and interest of the taxes paid under the purported one, and of compelling payment forthwith by it of the principal sum in satisfaction of the last assessment, the relator may have refunded to it simply the interest on the taxes paid, running from the date of payment to the date when the assessment was completed.</p>

The complaint alleges that a copartnership had existed between the plaintiffs and Walter Weston, deceased, and that, on December 1st, 1895, there was found to be due, upon an account being stated, from him to them a balance of $8,097.46 ; that Weston died, in March, 1904, a resident of the city of, Washington, District of Columbia, leaving a will, which was there admitted to probate ; that said Weston’s father, Edward Weston, had died in 1903, in the state of New York,…

The nature of the action and the facts, so far as material, are stated in the opinion. There was ample consideration for the stipulation entered into between the parties on September 27, 1907.

The nature of the action and the facts, so far as material, are stated in the opinion. The assessment is void on its face.

Appeal in each of the above-entitled actions from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered October 14, 1908, affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term. The nature of the actions and the facts, so far as material, are stated in the opinion.

The nature of the action and the facts, so far as material, are stated in the opinion. The defect in this walk was so slight the defendant had no reason to apprehend that an accident would occur at that place, and was not a dangerous walk. (Butler v. Vil. of Oxford, 186 N. Y. 444; Beltz v. City of Yonkers, 148 N. Y. 70; Hamilton v. City of Buffalo, 173 N. Y. 72; Henry v. City of New York, 119 App. Div. 432; Corson v. City of New York, 78 App.

The plaintiffs are partners engaged in the business of cotton brokers, having their principal place of business in the city of Yew York. They are members of the Yew York Cotton Exchange and also of the Yew Orleans Cotton Exchange. The defendant is a domestic corporation engaged in the business of transmitting telegraphic messages for hire.

The nature of the action and the facts, so far as material, are stated in the opinion. Gienty had a perfect right to rely upon the statement in his application that the occupations there specified were the only occupations which had been held to be extra hazardous. (Mauch v. Supreme Tribe, 100 App. Div. 49; Beach v. Supreme Tent, 177 N. Y. 100; Ayres v. Order of United Workmen, 188 N. Y. 280.) Defendant cannot properly contend that it had no power to make the contract.

January 11,1910, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial at Special Term.

<p>Contracts in restraint of trade — telegraph and telephone companies are public service corporations and cannot enforce contracts restricting subscribers from putting competitive systems in their premises — when contract not invalid by reason of illegality in part.</p> <p>While a contract in general restraint of trade is deemed illegal and void, the law permits contracts in partial restraint of trade, under some circumstances, where they are not unreasonable and are supported by sufficient consideration.</p> <p>But where the business to which the contract, relates is of such a character that it cannot he subjected even to the partial restraint, which is contemplated, without injury to the public interest, then such partial restraint cannot he tolerated.</p> <p>Telegraph and telephone companies arc to be deemed public service corporations, affected by a public interest, and hence contracts tending to restrict the free and general use of their lines are invalid, since the ordinary rule that contracts in partial restraint of trade are not invalid does not apply to corporations engaged in a public business and in furnishing that which is a matter of public concern.</p> <p>The general rule is that where you cannot sever the illegal from the legal part of a covenant, the contract is altogether void; but where you can sever them, whether the illegality he created by statute or by the common law, you can reject the had part and retain the good.</p> <p>While a telephone company may adopt every proper expedient to enlarge its own business, this does not include the right to pursue a policy of exclusion which is distinctly injurious to the public by restricting their circle of communication by telephone. It matters not that the customer may be willing to agree to exclude others, or that the contract to do so is supported by a sufficient consideration as between the parties. The evil in such an agreement is its antagonism to the interests of the public.</p> <p>In an equity suit, where there is no controversy as to the facts and they have all been judicially ascertained and established in the form of findings, there is no occasion to send the case hack for a new trial and thus put the parties needlessly to further labor and expense.</p> <p>The parties entered into a written contract for the rendition of telephone service by plaintiff in defendant’s hotel, including the maintenance of a private hotel telephone exchange therein for a period of years. The contract, after providing that the apparatus placed in the hotel in pursuance of its terms should remain the property of the telephone company, further stipulated “ that no instruments or wires other than those furnished by the first party are to be placed or maintained in said hotel or connected with or maintained in connection with said switchboard, apparatus or fixtures, and that said instruments, apparatus, line or fixtures of the first party are not to be connected with or used in connection with any exchange, office or telephone, except those of the first party, or its connections, and only bylines connecting said switchboard with the company’s office and switchboard as within provided.'’ This action is brought to restrain defendants from introducing any other telephone system in their hotel and from discontinuing and abandoning the use of the exchange therein equipped by plaintiff.</p> <p>Held, first, that the clause providing for the exclusive use of the plaintiff's telephone is against public policy and, therefore, void, and that plaintiff cannot prevent defendants from admitting other telephone systems or1 placing other telephone exchanges in their premises; second, that the invalidity of such exclusive clause does nob avoid the whole contract; third, that the plaintiff can lawfully insist that defendants shall retain and continue to employ its telephone exchange and telephone system and refrain from any adverse interference there with; fourth, that defendants are under a legal obligation to comply with every portion of their contract except that portion which relates to the exclusion of other telephones. (Lough v. Outerbridge, 143 N. Y. 271, distinguished.;</p>

The facts, so far as material, are stated in the opinion. The proceedings below are appealable to and reviewable by this court. (Matter of an Attorney, 83 N. Y. 165; Matter of Spencer, N. Y. L. J., Apr. 1, 1910; Matter of Eldridge, 82 N. Y. 161.) The findings of the referee amply warrant the order of the Appellate Division. (Matter of Clark, 184 N. Y. 222.)

The facts, so far as material, are stated in the opinion. If the legislature intended to change the statute by taxing capital as well as earnings, it should have done so by appropriate language, so as to make its meaning in this respect unmistakable. In all statutes defining the duties and obligations of citizens the accurate use of language is of the utmost importance.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 6,1910, which affirmed an order of Special Term denying a motion to quash a writ of certiorari. The facts, so far as material, and the questions certified are stated in the opinion.

<p>Decedent’s estate — devisee of real estate entitled to have taxes thereon paid out of personal estate of decedent — when executrix, also sole legatee and devisee, who has paid note of decedent, erroneously charged with value of collateral.</p> <p>When the personal representative of an estate is aware of the existence of a claim against such estate, he is not relieved from liability therefor by reason of the failure of the claimant to present his claim pursuant to the statutory notice. The protection of the statute is only where such representative acts in good faith.</p> <p>The command of the statute (Code Civ. Pro. § 2719) is imperative that executors and administrators must pay out of the personalty ali taxes assessed upon the property of the deceased previous to his death, and the devisee of real estate is entitled to have such taxes paid out of the personalty and his land relieved from the burden,</p> <p>An executrix, who was also sole legatee and devisee of the testator, paid a note of her decedent, which was secured by collateral, out of her own funds, and on such payment received collateral to a less amount than the sum paid. The Surrogate’s Court, while properly refusing to credit her with a greater amount than a pro rata dividend on the excess of the creditors’ claim over the value of the collateral, erroneously charged her with the value of the collateral which came into her hands.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered IVIarch 8, 1910, which reversed an order of Special Term denying a motion for a further return to a writ of certiorari and granted said motion.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 16, 1910, which reversed an order of Special Term denying a motion for a further return to a writ of certiorari and granted said motion.

<p>Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 5,1909, reversing a determination of the Appellate Term which reversed a judgment of the Municipal' Court of the city of Hew York in favor of plaintiffs for the sum of fifty dollars daznages and costs.</p> <p>The nature of the action and the facts, so far as material, ai’e stated in the opinion.</p> <p>The Interstate Commei'ce Act znakes defendant liable for its own negligent acts as well as those of its connecting carrier. (Matter of Released Rates, 13 I. C. C. R. 554; Smeltzer v. S. L. & S. F. R. R. Co., 158 Fed. Rep. 649; L. & N. R. R. Co. v. Warfield, 65 S. E. Rep. 308.) The Interstate Comzneree Act imposes upon defendant a liability for whatever loss, daznage or izzjnry the shipper sustains through the negligence of the defendazzt without power to diminish that liability by contract and this contract is one of exeznption and void under the act. Hence it cannot be a partial defense to this action. (Magnin v. Dinsmore, 70 N. Y. 410; Matter of Released Rates, 13 I. C. C. R. 552; L., ete., Co. v. P. Ins. Co., 129 U. S. 397; The Miagara, 62 U. S. 14; Schutte v. Weir, 59 Misc. Rep. 440; Silverman v. Weir, 114 N. Y. Supp. 6; K. C. Ry. Co. v. Carl, 121 S. W. Rep. 932; L. & N. R. R. Co. v. Warfield, 65 S. E. Rep. 308; Chicago, etc., R. R. Co. v. Solan, 95 Iowa, 260; 169 U. S. 133; Brush v. Sabula, 43 Iowa, 554; McCoy v. R. R. R. Co., 44 Iowa, 424.) The alleged agreed valuation clause is illegal and void as being part of the schezne for the liznitatiozz of liability izi violation of sectiozz 20 of the Interstate Coznmerce Act and cannot be a partial defense to this action. (Bermel v. N. Y., N. H. & H. R. R. Co., 62 App. Div. 389; Galloway v. E. R. R. Co., 107 App. Div. 316; 192 N. Y. 545; Isham v. Erie R. R. Co., 112 App. Div. 617; 191 N. Y. 547; Security Trust Co. v. Wells, Fargo & Co., 81 App. Div. 431; 178 N. Y. 620; Kansas City Ry. Co. v. Carl, 121 S. W. Rep. 932; Louisville & N. R. R. Co. v. Warfield, 95 S. E. Rep. 308; The Kensington, 183 U. S. 263; B. & O. R. R. Co. v. Doyle, 142 Fed. Rep. 669; Lucas v. B., etc., R. R. Co., 112 Iowa, 594.) A reduced rate as consideration for a limitation of liability or a rate based upon arbitrary valuation as consideration for a limitation of liability to such arbitrary valuation violates the acts to regulate commerce and any contract based thereon is illegal and void. (Merchants’ Cotton Co. v. Ins. Co., 151 U. S. 368; 91 Tenn. 537; Pond Decker Co. v. Spence, 86 Fed. Rep. 846; Bissell v. N. Y. C. & H. R. R. R. Co., 25 N. Y. 449; Nelson v. H. R. R. R. Co., 48 N. Y. 511; Adams Ex. Co. v. Harris, 120 Ind. 73; Kellerman v. K. C., etc., R. R. Co., 136 Mo. 177; R. R. v. Coolidge, 83 S. W. Rep. 333; Meeker v. L. V. R. R. Co., 162 Fed. Rep. 354; S. O. Co. v. U. S., 164 Fed. Rep. 376; 312 U. S. 579; A. Express Co. v. U. S., 212 U. S. 522.)</p> <p>The provisions of section 20 of the Interstate Commerce Act as amended were not intended to affect the existing law as to' the liability of a carrier for loss upon its own line, but the sole purpose was to extend the liability of the initial carrier so as to cover a loss caused by a connecting carrier. (Hutchinson on Carriers [3d ed.], §§ 230, 231; Bernard v. Adams Express Co., 91 N. E. Rep. 325; Travis v. Wells, Fargo & Co., 74 Atl. Rep. 444; McCann v. Eddy, 130 Mo. 59; M., K. & T. Ry. Co. v. McCann, 174 U. S. 580; Willis v. E., T. & B. Co., 169 U. S. 295.) The contract in question is not a contract of the kind described by section 20 of the act, because it is not a contract exempting the carrier from liability for loss caused by it. (N. Y., N. H. & H. R. R. Co. v. I. C. Comm., 200 U. S. 361; United States v. Hermomos, 209 U. S. 338; United States v. Healy, 160 U. S. 136; Matter of Released Rates, 13 I. C. C. R. 550; Hart v. P. R. R. Co., 112 U. S. 331; Penn. R. R. Co. v. Hughes, 191 U. S. 477; Hohl v. Nordeutscher Lloyd, 175 Fed. Rep. 544; Zimmer v. N. Y. C. & H. R. R. R. Co., 137 N. Y. 460; Tewes v. N. G. L. S. S. Co., 186 N. Y. 151; Barnes v. L. I. R. R. Co., 115 App. Div. 44.)</p>

The plaintiff stumbled against one of several flagstones temporarily laid upon a sidewalk in the village of Saratoga Springs, at a place where the walk was being repaired, to the knowledge and with the consent and under the direction of the sewer, water and street commission of said village. He sustained damages for which this action is brought. At the Trial Term the jury rendered a verdict in his favor of §1,000.

The action-was brought in part for the purpose of having a policy of insurance so reformed as to correspond with a certain alleged prior special contract of insurance.

The common council of the city of Rochester duly enacted an ordinance relating to public safety- and good order, which, so far as it relates to the defendant, is as follows : “ Section 89. As to Smoke from Chimneys — “ Subdivision (a).

The nature of the claim and the facts, so far as material, are stated in the opinion. The state is liable to the claimant for the damage caused him by reason of the flash boards being placed upon the Phoenix dam in 1901 and 1902, by reason of which the water in the Oneida river set back, overflowed the claimant’s premises and destroyed his crops. (People v. Fisher, 190 N. Y. 476.) The state did not acquire title by prescription.

The nature of the action and the facts, as far as material, are stated in the opinion. The certification of the check discharged the maker. (Cons. Laws, ch. 38, § 324; F. Nat. Bank v. Leach, 52 N. Y. 350.) Negligence in issuing a check does not deprive the maker of the right to repudiate a forged indorsement. (Nat. Ex.

<p>Negligence — charitable corporations —rule that charitable corporations are not liable to beneficiaries for torts or negligence of agents or servants, not applicable to rights of other persons.</p> <p>The beneficiary of a charitable trust may not hold the corporation, administering the trust, liable for the neglect of its servants, but this immunity does not affect the rights of those who are not such beneficiaries.</p> <p>This action was brought to recover for personal injuries received by the plaintiff, a journeyman mechanic, who was engaged in making repairs on a boiler on defendant’s premises. Defendant contends that, being a religious or charitable corporation, it cannot be held liable for the torts or negligence of its agents or servants; that the rule of respondeat superior has no application to such a corporation. Held, that in this case the plaintiff bore the same relation to the defendant as he would have to any other owner of property on whose premises he was called to work, and that defendant is not entitled to immunity from liability upon the ground claimed.</p>

The facts, so far as material, are stated in the opinion. The findings do not support the order. (N. S. Bank v. Wheeler, 40 App.

<p>Trade marks — manufacturers have right to protection against unfair competition although patent has expired — stipulation as to damages in action to restrain unfair competition.</p> <p>When a patent has expired, the right to make the patented article passes to the public. In such case, while the situation of a corporation which held the patent is no better than if it had never obtained one, and though it has lost its exclusive right to manufacture, it is still entitled to protection against unfair competition.</p> <p>At the expiration of certain patents, defendant began the manufacture of articles of the same character and style and of the same size as those made by the plaintiff, and advertised such articles in such language and manner as to convey to the trade and to intending purchasers that they were the articles made by plaintiff, with the intent and purpose of deceiving users of and dealers in the articles into the belief that defendant’s articles so advertised were manufactured by plaintiff and to thus enable defendant to make sales which it could not otherwise have made. It also offered such articles at a lower price than plaintiff was receiving therefor and in advertising this product defendant duplicated many of the cuts in plaintiff’s advertisement and also its printed matter. Held, that the trial court properly ruled that defendant had the right to manufacture and sell articles which are duplicates of those manufactured by plaintiff, but had not the right to place on such articles or to use in advertising the sale thereof the size number, numerals or the names adopted by the plaintiff.</p> <p>The parties stipulated as to the profit plaintiff would have made upon the quantities of the articles in question which were sold by defendant, in case they had been sold by plaintiff. Held, that by the stipulation the parties intended to establish the rule of damages in case plaintiff was successful, and that upon the findings of the trial court plaintiff is entitled to recover such stipulated damages in part.</p>

Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 26, 1910, which sustained a writ of certiorari, annulled a determination of the defendant’s denying the relator’s application for authority to issue stock and bonds and to execute a mortgage to secure said bonds, and referred the application back to the defendant for further action.

The facts, so far as material, are stated in the opinion. The expert witnesses sworn on behalf of the People were erroneously allowed to express their opinions as to the sanity of defendant without first giving the facts on which the opinion was based.

<p>Cross-appeals from an order of the Appellate Division of the Supreme Court in the third judicial department, entered December 20, 1909, which modified and affirmed as modified an interlocutory judgment entered upon the report of a referee.</p> <p>The Keeseville, Ausable Chasm and Lake Champlain Kailroad Company is a domestic corporation organized in 1889 to build and operate a steam railroad six miles long between Port Kent in the county of Essex and Keeseville in the county of Clinton. The authorized capital stock was $60,000, divided into 6,000 shares of the par value of ten dollars each, of which only 3,071 shares had been issued at the date of the contract mentioned hereafter, the remainder, 2,929 shares being in the treasury. The company completed its road in December, 1889, equipped it with the necessary rolling stock and appliances and for about fourteen years, or until June 10th, 1903, had continuously and successfully operated it. At that date it was a complete steam railroad, in active operation, with an adequate equipment in good repair, and earning each year a surplus of between four and five thousand dollars over fixed charges and operating expenses. It had been built and was mainly conducted by residents of the section through which it passed, and in the spring of 1903 they wished to change it from a road operated by steam to one operated by electricity, to extend it to Lake Placid, a distance of about forty miles, and to make certain other changes and extensions. With these objects in view, on the 10th of June, 1903, the company entered into a written agreement with the defendants Joseph A. Powers and Walter H. Mansfield, of which the following is a copy :</p> <p>“ Agreement made this 10th day of June, 1903, between the Keeseville, Ausable Chasm and Lake Champlain Railroad Co., hereinafter called the Company, and Joseph A. Powers and Walter II. Mansfield, hereinafter called the Contractors, in consideration of one dollar hereby receipted for mutually and other good consideration.</p> <p>« Witnesseth : The Company agrees to transfer to the Contractors and deliver the same within ten days after the completion of the agreement hereinafter mentioned on their part for the operation of the road by electricity seventy-five per cent of the issued capital stock of said company, and to at once place the same in escrow with the Keeseville National Bank for said purpose; and agrees to deliver to said Contractors all the unissued capital stock of said Company, and agrees to appoint an executive committee of three to be named by the said Contractors and with powers satisfactory to them. The Company agrees to mortgage its property, franchises and equipments by executing and filing a consolidated mortgage in the sum of $175,000, the bonds to be issued thereunder to be six per cent twenty-year gold bonds, with interest payable semi-annually on July 1st and January 1st. Said bonds to be callable and payable at ten per cent premium and accrued interest at any time. Sufficient of said bonds to be held in escrow to retire the present outstanding bonds of the Company and the balance of said bonds to be issued to said Contractors for the work and material hereinafter specified, as soon as practicable, and procure the necessary consents of stockholders thereto.</p> <p>“The Contractors agree to reconstruct the Company’s railroad into a first-class modern third rail electric railroad, to furnish an electric locomotive of sufficient capacity for the company’s business and storage battery, dynamo, switchboard and appurtenances sufficient for the company’s use and business ; and to furnish sufficient and proper cars for the business of the Company. Said Contractors agree to purchase and deliver to the Company the Dock property at Port Kent on Lake Champlain, and to connect the Company’s railroad there with by suitable tracks; also to extend the Company’s railroad westerly on both sides of the Ausable River to the upper bridge in the Village of Keeseville as soon as possible.</p> <p>“Said railroad when reconstructed shall at all times be operated with as good service to the Villages of Keeseville and Ausable Chasm as heretofore had and there shall be no increase of rate for freight or passengers.</p> <p>“The Company is to procure an exclusive contract for traffic from and to the Ausable Chasm, from the Ausable Chasm Co. if possible.</p> <p>“ The Company is to procure and the Contractors pay for proper water power to operate said electric road, at a price mutually agreed upon.</p> <p>“The Contractors agree to commence the said work of reconstruction at once and carry the same to completion as rapidly as possible, and both parties are to use their best endeavors to accomplish the same.</p> <p>“ This contract is made upon the mutual understanding that said electric railroad is to be extended through the Ausable valley to Lake Placid as soon as practicable, and work to be begun within not longer than three years.”</p> <p>This agreement was promptly performed by the company on its part, except in certain particulars, which were either waived or prevented by the other parties thereto. On the other hand, when this action was commenced, about twenty months after the date of the contract, there had been a substantial and nearly absolute failure to perform on the part of Powers and Mansfield, although performance was practicable and quite within their power. While they had purchased and transferred to the company the dock property at Port Kent, they had not connected the railroad therewith by suitable tracks, which, would have required the expenditure of considerable money in grading, acquiring a right of way, purchasing and laying rails and the like. Without such connection the dock property was of little use to the railroad company. While the work of transforming the steam road into an elec-. trie road and equipping it as required could easily have been done within six months from the date of the contract, in March, 1905, when this action was begun, Powers and Mansfield had done no substantial part thereof, although they had laid at intervals on the roadbed some long ties, which were equally adapted to an electric or a steam road, and they had placed on the ground, but had not erected, the poles needed to carry the electric wires and the cover to protect the third rail, together with some lumber suitable for the work, but equally useful for other purposes. They had not procured a water power to operate the road by electricity, nor extended the road to the upper bridge in the village of Keeseville on either side of the river, which would have required the construction of about one mile of road, nor had they procured the right of way for such extension or the consent of property owners or of the village authorities. Nothing had been done to extend the road to Lake Placid, which would have cost a large sum of money, but on the other hand Powers and Mansfield had repudiated that part of the agreement and had declared that they never intended to be bound by it, although they knew when they signed the contract that the other party thereto understood it as requiring such extension and that the railroad authorities would not have executed it upon any other understanding. Their omission to perform the contract according to its terms was not owing to unforeseen circumstances, nor to any default, consent or waiver of the railroad company while under the control of the original directors.</p> <p>The entire amount expended by Powers and Mansfield, their assignees and agents in doing work contemplated by the contract did not exceed $14,250.31 at the time the action was commenced. This sum includes all moneys paid out for any purpose and all that may become due on obligations incurred by them for the purpose specified. Of this amount $7,000 was expended for the purchase of the dock property, $3,796 for material bought and labor done in the work of transforming the road and the remainder for purposes which had little or nothing to do with the performance of their contract. Performance of the contract on their part, aside .from the extension to Lake Placid, would have cost about $120,000. The net earnings of the road during the years 1903, 1904 and 1905 were about $4,000 a year.</p> <p>While Powers and Mansfield had done but little toward performance, they had obtained possession of the treasury stock and by voting thereon and on a few other shares which they had purchased had elected their relatives and employees as directors and had thus secured absolute control of the road. Through such control they had obtained possession of the bonds issued by the road to the amount of $175,000 and to a large extent had used them for purposes other than the performance of their contract, and had transferred them to certain of the other defendants in the action who claimed to own them in good faith, but they had notice of the facts. They had also caused the railroad company to enter into an improvident contract with an electric light and power company, owned and controlled by themselves, to their own profit and to the detriment of the road.</p> <p>This action was commenced on the fifth of March, 1905, by service of process upon all the defendants except one, the Powers and Mansfield Company, owned and * controlled by Powers and Mansfield, which was brought in as a party defendant by an amended complaint on the 26th of August following. It is a representative action brought by a stockholder of the railroad company from the date of organization to rescind the contract of June 10, 1903, recover possession of the bonds and treasury stock, set aside various contracts made by Powers and Mansfield with their own instruments and agents, and so far as possible to place the company in the position it occupied when the contract was made. The plaintiff, who owned 2,192 shares of stock when the action was commenced and 2,489 when it was tried, much thereof being pledged in escrow, tendered in his complaint restitution, either literal or by the payment of money, of all benefits received by the road down to the time of the commencement of the action, over and above those paid for out of earnings. The railroad company was made a party defendant upon the allegation that it could not protect itself because it was under the control of those hostile to its interests. The complaint was drawn upon the theory of fraud in entering into the contract, the repudiation of a vital part and such willful and radical breaches thereof as to defeat its object.</p> <p>Not long after the commencement of the action the defendants began to “ electrify ” the road with some energy. The plaintiff, anticipating that a claim would be made for reimbursement in case the election to rescind shown by the commencement of the action should be sustained by the court, in August, 1905, procured an injunction restraining the active defendants from further prosecuting the work in any respect. On the fourth of November, 1905, on motion of said defendants and against the objection of the plaintiff, said injunction was vacated, and thereupon the work was resumed and continued until, as it is alleged, more than $50,000 had been expended thereon.</p> <p>The referee before whom the action was tried did not find that Powers and Mansfield were guilty of fraud in entering into the contract, but decreed rescission upon the ground, of repudiation and of willful, continuous and radical breaches, set aside certain contracts and transfers made by the railroad company when under the control of Powers and Mansfield, and required the defendants to restore such property and securities of the company, including all the treasury stock and the most of the bonds, as they had in their possession, and granted other relief incidental to the decree for rescission. He required as a condition that the company should convey to Powers and Mansfield the dock property, or at their election to pay the cost thereof with interest, and to restore or account for the said sum of $14,250.31 expended before the action was brought. He directed an accounting between the railroad company and Powers and Mansfield, in which each should be credited with the amount expended and charged with the amount received to the date of suit. He provided that Powers and Mansfield and the Powers and Mansfield Company, their contractors, should be entitled to remove from the premises of the railroad company “all electrical equipment, wire, rails, batteries, dynamos, electric locomotives and cars and other property delivered by them to the railroad company since March 5th, 1905, and which can be removed without injury to the said railroad, the items of such property so to be removed -by them to be determined by the referee on the accounting above directed and specified in the final judgment.”</p> <p>Hpon appeal to the Appellate Division the interlocutory judgment entered upon the report of the referee was so modified, as a condition of relief, that upon the accounting the defendants should have credit for all sums reasonably expended by them “ upon said road and its management up to the time of the accounting,” in addition to the sums expended prior to the commencement of the action. As a further condition of relief the plaintiff or the railroad company was required to pay the amount found due to the defendants or any of' them upon the accounting, or to give a bond with two or more sureties, justifying in the sum of $160,000, “ conditioned for the payment of the amount found due * * * to the amount of $80,000.” The plaintiff was required to elect within thirty days after notice of the order of the Appellate Division whether he would comply with the conditions upon which relief was given, “ and that if he does not so elect within that time to comply with said conditions the complaint is dismissed without costs.”</p> <p>The plaintiff moved before the Appellate Division for leave to appeal from so much of the order of affirmance and the interlocutory judgment entered thereon “as conditioned the relief given to plaintiff on the payment, or provision for payment, of expenditures made after action was brought and imposing the further condition that plaintiff within thirty days elect whether he would accept the condition imposed and on his failure to do so the complaint be dismissed.” The defendants asked that if the application of the plaintiff should be granted certain questions suggested in their behalf be certified, upon the ground that the one presented by the plaintiff would not determine the entire controversy and would not decide the questions which the defendants wished to have reviewed. The court refused to certify any questions except such as related to the plaintiff’s appeal unless the defendants should join in the application to appeal or apply independently to be allowed to appeal themselves. After excepting to this decision the defendants notified the court that they joined in the application of the plaintiff for leave to appeal and asked to have certain questions specified by them certified to the Court of Appeals. The plaintiff consented in open court that defendants’ application might be entertained and granted. Thereupon the court gave both parties leave to appeal and on the application of the plaintiff certified the following question: “ Was the relief properly conditioned on payment, or provision for payment, of the expenditures made after action was brought?” By an independent clause of the order leave was given to the defendants to appeal and the following questions were certified in their behalf: “1. Was the judgment authorized by the evidence and findings of the referee? 2. Is the judgment secundum allegata ? 3. Did the reception in evidence of conversations between Bowers and Mansfield, or either of them, and the officers and directors of the railroad company before and at the time of making the contract as detailed in folios 2712, 3130, 3133, 3140, 3898, 3904, 3916, 4102, 4105 and 5556, over the objections and exceptions of the defendants Powers and Mansfield, the Powers and Mansfield Company and Albert E. Powers, constitute reversible error ? ”</p> <p>Both parties appealed, the plaintiff from so much of the interlocutory judgment as related to the expenditures made by the defendants after the commencement of the action and the condition requiring the plaintiff to elect within thirty days from service of the judgment and notice of entry and dismissing the complaint in case he failed to make such election.</p> <p>The defendants Joseph A. Powers, Walter H. Mansfield, The Powers and Mansfield Company and Albert E. Powers appealed from the order and interlocutory judgment and from each and every part thereof.</p> <p>The condition imposed by the Appellate Division—that plaintiff or the railroad company must pay the expenditures made by the defendants after the commencement of the action, or his complaint be dismissed, was unwarranted, and, therefore, the following question certified by it — “Was the relief properly conditioned on payment, or provision for payment, of the expenditures made after action was brought?” — should be answered in the negative. (R. H. & T. M. Co. v. A. D. F. & T. Co., 195 N. Y. 54; Gillespie v. Moon, 2 Johns. Ch. 585.) The modification of the judgment made by the Appellate Division in so far as it compels the plaintiff to buy from the defendants property purchased hy them, after this action was begun, and to pay therefor the cost of such property to the defendants, and also to reimburse defendants for all moneys expended on the railroad in performance of the contract, after the action was begun to cancel it, was erroneous and beyond the power of the Supreme Court. (Bomeisler v. Forster, 154 N. Y. 229; Thomas v. Evans, 105 N. Y. 601; Putman v. Ritchie, 6 Paige, 390; Mickles v. Dillaye, 17 N. Y. 80; Green v. Biddle, 8 Wheat. 79; Gregory v. Thomas, 20 Wend. 19; Sedgwick on Damages [8th ed.], § 915; Woodhull v. Rosenthal, 61 N. Y. 382; Wood v. Wood, 83 N. Y. 575; Moore v. Cable, 1 Johns. Ch. 387; Gillespie v. Moon, 2 Johns. Ch. 585; Spears v. Mayor, etc., 87 N. Y. 359; Comstock v. Johnson, 46 N. Y. 615.) The modification is erroneous in that it allows the defendants the amount expended by them upon the railroad, including the cost of the electrical equipment. (Sedgwick on Damages [8th ed.], § 917; Woodhull v. Rosenthal, 61 N. Y. 382.) The facts found justify a rescission of the contract. (Van Allen v. N. Y. & N. E. R. R. Co., 144 N. Y. 174; Graves v. White, 87 N. Y. 463; Hubbell v. Ins. Co., 89 N. Y. 41; L. S. & M. S. R. R. Co. v. Richard, 152 Ill. 59; Leopold v. Salkey, 89 Ill. 412; Ballance v. Vanuxem, 191 Ill. 319; Burtis v. Thompson, 42 N. Y. 246; Howard v. Daly, 61 N. Y. 362; Ferris v. Spooner, 102 N. Y. 10; U. Ins. Co. v. C. T. Co., 157 N. Y. 633.) The failure to transform the existing road from Keeseville to Port Kent into an electric road and extend it to the dock was such a breach of the contract as justifies its rescission. (S. R. P. Co. v. S. C. L. Co., 42 Misc. Rep. 102.) The acts done by defendants since the beginning of this action do not change the rights of the parties or deprive plaintiff of the right of rescission or cancellation if that right existed when the suit was begun. (Story’s Eq. Pl. § 903; Code Civ. Pro. § 544; Ward v. Boyce, 152 N. Y. 191; Fox v. Davidson, 36 App. Div. 159; T. Assn. v. Eisner, 70 App. Div. 172; L. S. & M. S. R. R. Co. v. Richards, 152 Ill. 59; Stevenson v. Marble, 84 Fed. Rep. 23; M. E. R. R. Co. v. M. R. Co., 11 Daly, 373; Schmidt v. Reed, 132 N. Y. 108; Dawes v. Wood, L. R. [29 Ch. Div.] 626; Starr v. B. Society, L. R. [42 Ch. Div.] 375; Bellamy v. Debenham, L. R. [1 Ch. Div. 1891] 412.) The action was properly brought in equity for a rescission. There was no adequate remedy at law. (People v. E. L. Ass. Society, 124 App. Div. 714-734; Converse v. U. S. M. Co., 185 Mass. 422; Gould v. C. C. Nat. Bank, 86 N. Y. 75; F. L. & T. Co. v. Galesburg, 133 U. S. 156; Marvin v. Brooks, 94 N. Y. 71.) The judgment appealed from grants only such relief as is asked for in the complaint and is in accordance with the facts alleged therein and proved thereunder. Therefore, the following question certified on behalf of the defendants, namely, “Is the judgment secundum allegata f" should be answered in the affirmative. (Connaughty v. Nicholas, 42 N. Y. 83; Code Civ. Pro. § 488; R. H. & I. M. Co. v. U. D. F. & T. Co., 195 N. Y. 54.) The third question certified on defendants’ appeal, as to competency of certain evidence specified, should be answered in the negative. (Gillespie v. Moon, 2 Johns. Ch. 585; Bispham’s Pr. of Equity, § 258; Foote v. Beecher, 12 Hun, 374; Forrest v. Forrest, 25 N. Y. 501; Clapp v. Fullerton, 34 N. Y. 190; Post v. B. H. R. R. Co., 195 N. Y. 62.)</p> <p>The first question certified to this court upon the appeal of the defendants is not a proper question to be certified, and does not present a question that can be passed uj>on by this court. (Putnam v. L. S. D. Co., 191 N. Y. 166; Duclos v. Kelly, 197 N. Y. 76; Sweet v. Henry, 175 N. Y. 268; Reed v. McCord, 160 N. Y. 330.) The judgment does not follow the allegations of the complaint. (People v. E. L. A. Society, 124 App. Div. 714; Fox v. Fitzpatrick, 190 N. Y. 259; C. B. Co. v. Howlett, 169 N. Y. 293; Gordon v. E. & K. R. R. Co., 195 N. Y. 137; R. E. Bank v. Eames, 1 Keyes, 592; Truesdell v. Sarles, 104 N. Y. 164; Reed v. McConnell, 133 N. Y. 425; Nichols v. Pinner, 18 N. Y. 295; Nichols v. Michael, 23 N. Y. 264; Farrington v. Bullard, 40 Barb. 512; Kley v. Healy, 127 N. Y. 555.) A judgment is not secundum allegata that can only be sustained upon the ground that from the findings of the trial court the plaintiff: is entitled to relief upon some other ground or for some other reason than that stated in the complaint. (Cassidy v. Uhlmann, 170 N. Y. 537.) The judgment ought not to be sustained, because it is rendered upon grounds not only varying from but entirely inconsistent with the averments in the complaint. (Smith v. Smith, 4 App. Div. 230; Truesdell v. Bourke, 145 N. Y. 617; Barnes v. Quigley, 59 N. Y. 267; Freeman v. Grant, 132 N. Y. 129; De Graw v. Elmore, 50 N. Y. 3.) With the allegations of fraud stricken from the complaint, the judgment is not secumdum allegata, in that in that event the allegations of the complaint and the findings of the referee do not warrant the judgment rendered. (Johnson v. Murphey, 60 Ala. 288; Stephens v. Cushing, 1 N. H. 17; Dubois v. Dubois, 176 Penn. St. 430; Michel v. Halheimer, 16 N. Y. Supp. 489; Moores v. Townsend, 102 N. Y. 387.) The relief was properly conditioned on payment, or provision for payment, of the expenditures made after action was brought. (R. H. & T. M. Co. v. U. D. F. & T. Co., 195 N. Y. 54; Allerton v. Allerton 30 N. Y. 670: Davis v. R. R. Co., 192 N. Y. 128.)</p>

Atlantic avenue is one of the streets of the borough of Brooklyn in the city of New York, running from the East river in an easterly direction to the village of Jamaica. Flatbush avenue crosses Atlantic avenue at a distance of 1.427 miles from the river. The plaintiffs’ railroad commences at this point and runs easterly through the center of Atlantic avenue.

The defendant Gillig is the person to whom the deed hereinafter mentioned was given. The defendants Frank 0. Keinpf and Nicholas Kempf are contractors, who, at the time of the commencement of this action, were under contract with the defendant Gillig to do certain work upon the real property described in said deed.

The nature of the action and the facts, so far as material, are stated in the opinion.

This action was brought upon the alleged breach of a contract entered into between the plaintiffs and the defendants on the 16th day of June, 1899.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 14,1909, affirming a judgment in favor of defendants entered upon the report of a referee.</p> <p>The nature of the action and 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 nature of the action and the facts, so far as material, are stated in the opinion. The evidence conclusively establishes that the contract was never performed by Crane, and that any conveyances that were made of any portion of the property were not made in pursuance of its provisions, but in pursuance of an entirely new arrangement.

The nature of the action and the facts, so far as material, are stated in the opinion. When findings are conflicting those are to be taken as true which are most favorable to the appellant. (Hamlin v. Hamilton, 192 N. Y. 164; Elterman v. Hyman, 192 N. Y. 116; Bremer v. Manhattan Ry. Co., 191 N. Y. 339; Whalen v. Stuart, 194 N. Y. 495; Nickell v. Tracy, 184 N. Y. 386; Hamilton v. Fleckenstein, 118 App.

<p>Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 3, 1910, which reversed an order of Special Term denying a motion to revive this action and to substitute the executors of the deceased defendant in his place and stead.</p> <p>Prior to the first of December, 1901, Albert Friedlander, Albert S. Faber and Edwin Potosky formed a copartnership under the firm name of A. Friedlander & Co., which was to continue until December 1st, 1907. On the third of May, 1906, Potosky assigned to said Friedlander “ his entire interest in the assets and liabilities of said copartnership business,” and on the 22nd of the same month Faber transferred all his interest in the firm assets to Friedlander who assumed all the copartnership liabilities.</p> <p>In January, 1908, this action was commenced to recover a claim against said firm alleged to have accrued in 1901 and to have become due on the first of December, 1902. It is a strict action at law with no averment of special facts. Each member of the firm was named as a party defendant in the summons but process was served upon Mr. Friedlander only. On the 2nd of June, 1909, Friedlander died, leaving a last will and testament which was duly admitted to probate and Isaac L. Spiegelberg and Marie Friedlander were, respectively, appointed executor and executrix thereof. About the first of February, 1910, upon the stipulation of the attorneys for the plaintiff and the defendant Friedlander, the action was discontinued as against Potoslcy and Faber, who had not appeared therein, and on the 28th of March following a motion, made to revive the action and to substitute the executors as defendants, was denied at Special .Term, but on appeal to the Appellate Division the order was reversed and the motion granted. Leave to appeal from the order of the Appellate Division having been obtained, the following questions were certified to this court:</p> <p>“First. Did section 6, chapter 420 of the Laws of 1897, being the Partnership Law, make the partners in a general partnership jointly and severally liable to the creditors of the firm ?</p> <p>“Second. Was the plaintiff entitled to an order reviving this action and substituting the personal representatives of Albert Friedlander, deceased, as defendants ? ”</p> <p>The statute (L. 1897, ch. 420, § 6) was not intended by the legislature to change the law as to partnerships, nor the procedure in case of the death of the partner. (Voorhis v. Childs, 17 N. Y. 354; Pope v. Cole, 55 N. Y. 124; Richter v. Poppenhausen, 42 N. Y. 373; Potts v. Dounce, 173 N. Y. 335; Hotopp v. Huber, 160 N. Y. 524; Leggatt v. Leggatt, 79 App. Div. 141.)</p> <p>Section 6 of chapter 420 of the Laws of 1897 made partners in a general partnership liable jointly and severally as to firm creditors and abrogated the common-law rule of joint liability only. (Pirie v. C. T. & T. Co., 182 U. S. 438; Lyon v. Smith, 11 Barb. 124; Matter of Southworth, 5 Hun, 55; Town of Wirt v. Bd. of Suprs., 90 Hun, 205; Kent v. Wells, 21 Ark. 411; Davis v. Sanderlin, 119 N. C. 84; Neil v. Childs, 10 Ind. 195; Gratz v. Stumpf, Cooke [Tenn.], 493; Link v. Allen, 1 Heisk. [Tenn.] 318; Williams v. Muthersbaugh, 29 Kan. 524; Hall v. Cook, 69 Ala. 87.) The motion was properly granted by the Appellate Division as it appeared without dispute that the plaintiff was unable to collect as against the surviving partners by reason of the fact that the Statute of Limitations created a bar to any recovery as to them. (Hentz v. Havemeyer, 132 App. Div. 58.) The fact that Friedlander took over all the assets, assumed the payment of the liabilities and agreed to hold the retiring partners free of liability was another reason why it was necessary to bring in the representatives of his estate in order to obtain a proper disposition of the action. (Code Civ. Pro. § 758; Savage v. Putnam, 32 N. Y. 501; Millerd v. Thorn, 56 N. Y. 406; Colgrove v. Tallman, 67 N. Y. 95; Grow v. Garlock, 97 N. Y. 81; Palmer v. Purdy, 83 N. Y. 144; U. S. Nat. Bank v. Underwood, 2 App. Div. 342; Reed & Barton v. Ashe, 18 App. Div. 501; Morrisey v. Berman, 47 Misc. Rep. 586; Phillips v. Mendelsohn, 67 Misc. Rep. 142.)</p>

Lawrence county in designating a newspaper to publish the Session Laws and Concurrent Resolutions of the legislature. The facts, so far as material, are stated in the opinion. The statute providing for the designation of a newspaper to publish the Session Laws and Concurrent Resolutions does not require or contemplate that the paper having the largest circulation shall be designated.

For several years prior to the 21st of August, 1906, the plaintiff resided with her husband in a house on West Marcellus street in the city of Syracuse, the lease from James Doheny, the owner, being in the husband’s name as lessee. The lot upon which the house stands is 34 by 100 feet, and the rear thereof adjoins the land of the defendant, upon which there is a large building several hundred feet long used for the manufacture of automobiles.

The nature of the action and the facts, so far as material, are stated in the opinion. The by-laws relating to the forfeiture of certificates by engagement in the sale of liquors as a prohibited occupation are reasonable and valid. (Tucker v. Supreme Tent, 123 App. Div. 223; 128 App. Div. 918; People ex rel. Goett v. Grand Lodge, 32 Misc. Rep. 528; Bacon on Ben.

<p>Equity — partition — when owner of land, who seeks, in an action of partition, to establish his title against a person in peaceable possession of such land, but under a defective title, must reimburse occupant for permanent improvements.</p> <p>When a person in peaceable possession of real property under claim of lawful title, but really under a defective title, has, in good faith, made permanent improvements, the true owner, who seeks the aid of equity to establish his own title, may be compelled to reimburse the occupant for his expenditures. The three important elements underlying the award of relief are those of the good faith and the innocent mistake of the purchaser, and that the plaintiff is in a court of equity asking its aid. Bach case is, necessarily, governed by its peculiar facts.</p> <p>A testamentary trustee, acting under a power of sale conferred by the will of his testatrix, conveyed land owned by her for the full value thereof to a purchaser acting in good faith upon the assumption that the trus- . tee had the right to convey a legal title. The purchaser conveyed to another who entered into possession of such land under claim of lawful title and, with the knowledge of the heirs of testatrix and of the plaintiff, a judgment creditor of three of her sons, restored and made valuable a milling property on such land. Thereafter such judgment creditor caused execution to be issued, and purchased the interest of said heirs in said land at the sheriff’s sale thereof. Later such judgment creditor began an action for a partition of such property, claiming that testatrix’s devise thereof was invalid and void; that the trustee’s conveyance thereof transferred no title, and that, through its purchase of the interest of three of the sons of testatrix, it was the owner of three-fifths of the property in question. Held, that, although the trust was invalid and the authority of the trustee fell with it, the court is warranted, in the exercise of its equitable powers, in allowing compensation to the grantee of the purchaser, under the trustee’s deed, for the value of the improvements placed upon the property, so far as they enhanced the value of the land.</p>

The facts, so far as material, are stated in the opinion. Reversible error was committed in the admission of the testimony of the People’s witnesses in reference to the action and statement of Vincenzo Leonardo at the Albany county jail.

The facts, so far as material, are stated in the opinion. The admission of testimony as to declarations of deceased constitutes reversible error. (Lahey v. Ottman & Co., 73 Hun, 61; People v. Del Vermo, 192 N. Y. 470; Wharton on Homicide [3d ed.], § 629; People v. Shaw, 3 Hun, 272.) The producing of John H. Farrell and his evidence was highly prejudicial to the defendant and constitutes reversible error.

<p>(1.) Murder—Evidence Sufficient to Sustain Verdict.</p> <p>On examination of the record on the trial of defendant for homicide, held, not only is there evidence to sustain the verdict of the jury, but the verdict was right; that defendant killed his wife with a deliberate and premeditated design to effect her death, and at the time of such killing he knew the nature and quality of the act and that it was wrong.</p> <p>(2.) Same—Defence of Insanity—Admissibility of Evidence Sustaining such Defense.</p> <p>The defendant pleaded “ not guilty, on the grounds of insanity.” For the purpose of sustaining this defense a witness was called to testify that, while on a visit to his father, defendant “ took a revolver and some money.” It appeared on cross-examination that “ he took it out of his father’s trunk.” Held, that it was not error for the court to inquire whether it was taken by his father’s permission since it was proper to ascertain the nature of the act which it was claimed tended to show defendant’s irresponsibility.</p> <p>(3.) Same—When Testimony of Physician not Privileged—Code Civ. Pro. Sec. 834.</p> <p>The testimony of a physician was not privileged by the Revised Statutes and is not privileged by the present statute, except when' his information is “acquired in attending a patient in a professional capacity,” and where such information “was necessary to enable him to act in that capacity. The burden is upon the party seeking to exclude the testimony of a physician under section 834 of the Code of Civil Procedure to bring the case within its provisions.</p> <p>(4.) Same.</p> <p>A physician was appointed by the court on application of defendant’s counsel to examine defendant as to Ms sanity. The physician was not called by defendant. He was called by the prosecution and was allowed, under defendant’s objection, to testify that he had made examinations of the prisoner. He was not allowed to testify further as to any material fact. Held, no error.</p>

Trumble, deceased. William E. Trumble died April 8, 1909, leaving a will, a copy of which, other than the formal parts is as follows: “First. I direct that all my just debts and funeral expenses be paid. “ Second. I direct my executor hereinafter named to cause to be erected over my grave a headstone that shall cost not to ■ exceed fifty dollars. “ Third.

The nature of the action and the facts, so far as material, are stated in the opinion. Assuming that the record contained facts upon which defendant, the City of New York, might advance its defense as set forth in its answer, the plaintiff would still be entitled to go to the jury upon the questions of fact raised. (Adlin v. E. B. Co., 129 App. Div. 713; Nims v. City of Troy, 59 N. Y. 500; Bailey v. Mayor of City of New York, 3 Hill, 531; Dillon on Mun.

The nature of the action and the facts, so far as material, are stated in the opinion. The contract on which the action is based is unlawful and unenforceable in any way and the complaint should have been dismissed on the defendant’s motion. (Wood & Selick v. Ball, 190 N. Y. 217; Gillett v. Phillips, 13 N. Y. 114; Leavitt v. Palmer, 3 N. Y. 19; Burger v. Koelsch, 77 Hun, 14; Johnson v. N. Y. B. Co., 178 Fed.

The nature of the action and the facts, so far as material, are stated in the opinion. The acts and omissions of an architect or superintendent in respect to all matters intrusted to his determination under such contracts as those involved in this case are not impeachable except for fraud or bad faith. (Mahoney v. O. R. Co., 133 App. Div. 656; Sweet v. Morrison, 116 N. Y. 19; Smith v. Mayor, etc., 12 App. Div. 391; Snyder v. City of New York, 14 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The learned trial court erred in charging that the easement and release contained in the deed from Hewett did not bind plaintiff.

<p>Appeal from a filial judgment, entered June 2,1909, upon an order of the Appellate Division of the Supreme Court in the first judicial department, which affirmed an interlocutory judgment of Special Term sustaining demurrers to the complaint.</p> <p>The plaintiff brings this action as the receiver of the Gil-man-McNeill Company, a creditor of the defendant, the Iron Railway Company, to reach assets alleged to have been received by certain stockholders of the railway company, defendant here, and to have them applied to the payment of his claim. The defendants demurred to the complaint, upon the ground that it did not state facts sufficient to constitute a cause of action, and the demurrer was sustained in the courts below. The plaintiff not having availed himself of the leave to amend his complaint, final judgment was entered dismissing the same and he has taken the present appeal therefrom.</p> <p>The complaint alleged the following facts; namely, the due appointment of the plaintiff as receiver of the Gilman-McNeill Company, in an action in the Circuit Court of Kanawha county, in the state of West Virginia,- and his investment with all of its property, assets, claims and dioses in action; the nature of the indebtedness of the Iron Railway Company, a corporation organized and existing under the laws of the state of Ohio, to the Gilman-McNeill Company and the recovery of judgment thereon in the United States Circuit Court for the southern district of Ohio; the issuance of execution upon the said judgment and the return thereof unsatisfied ; that the railway company, in pursuance of a certain contract with the Detroit Southern Railroad Company, had conveyed to the latter company its railroad property and franchises for the sum of $600,000,-to be paid directly to its stockholders upon delivery of all of the shares of capital stock; that the defendants, other than the Iron Railway Company, composing the firm of F. J. Lisman & Co., had controlled the conduct of the affairs and business of the Iron Railway Company, through ownership of the capital stock, and had arranged the above contract; that said firm had received the said sum of $600,000, and that they had paid the same to the shareholders of the railway company. It is, then, alleged that the defendant railway company had no property or assets of any description, other than the property agreed to be conveyed under the contract, and “ now has no property or assets whatsoever, excepting its right to receive the consideration mentioned in said contract and by said distribution of said sum of $600,000 among the shareholders of the railway company it became impossible for the creditors of the railway company, including the plaintiff, to enforce at law the codection of their claims and debts.” It is next alleged that the said sum of $600,000 was distributed by F. J. Lisman & Co. to and among the holders of the capital stock of the railway company and the members of that firm, l£ with full knowledge of the then existing indebtedness of the Railway company to the plaintiff and to other creditors.” Finally, it is alleged that the railway company, prior to the commencement of this action, was requested to bring suit against the defendants, composing the firm of F. J. Lisman & Co., for a recovery of the $600,000, diverted from the assets of the railway company, and that it had failed and neglected to do so. Judgment is demanded for a receivership of the railway company and that the defendants Lisman and others pay over to said receiver all the moneys and assets received by them and that they be applied to the payment of the claim of the plaintiff and of any other claims properly payable therefrom.</p> <p>It was impossible for the plaintiff to obtain a judgment in Mew York against the Iron Railway Company; consequently the obtaining of such a judgment and the issuance of execution thereon were not conditions precedent to his equitable right of action against the stockholders of that company to recover its assets which they had wrongfully appropriated. (Code Civ. Pro. § 1780; N. T. Bank v. Wetmore, 124 N. Y. 241; Patchen v. Rofkar, 12 App. Div. 475.) Even if it appeared that the plaintiff might have recovered judgment in Mew York and issued execution thereon against the Iron Railway Company, under the circumstances of this case observance of those forms is not a condition precedent to the maintenance of this action. (Bartlett v. Drew, 57 N. Y. 587; Cole v. M. I. Co., 133 N. Y. 164; N. T. Bank v. Wetmore, 124 N. Y. 241; Estes v. Wilcox, 67 N. Y. 264; Lefevre v. Phillips, 81 Hun, 232; Patchen, v. Rofkar, 12 App. Div. 475; Bateman v. Hunt, 46 Misc. Rep. 346; Dillon v. Hoen, 5 How. Pr. 35; Loomis v. Lifft, 16 Barb. 541; Walser v. Seligman, 13 Fed. Rep. 415.)</p> <p>The complaint is demurrable because it appears that no judgment at law was obtained in New York against the Iron Railway Company before instituting this action, and because it does not appear that no action could have been instituted against it in this state. (Davis v. Bruns, 23 Hun, 648; Tarbell v. Griggs, 3 Paige, 207; Patchen v. Rofkar, 12 App. Div. 475; 5 Ency. Pl. & Pr. 490; Claflin v. McDermott, 12 Fed. Rep. 375; Walser v. Seligman, 13 Fed. Rep. 415.) No valid legal excuse has been pleaded for the non-performance of the conditions precedent to the beginning of a judgment creditor’s action in equity. (Estes v. Wilcox, 67 N. Y. 264; Adee v. Bigler, 81 N. Y. 349; Adsit v. Butler, 87 N. Y. 585; United Glass Co. v. Vary, 152 N. Y. 121; Dittmar v. Gould, 60 App. Div. 94; Gause v. Boldt, 49 Misc. Rep. 340; 115 App. Div. 897; Beardsley & Co. v. Foster, 36 N. Y. 561; Walser v. Seligman, 13 Fed. Rep. 415; N. T. Bank v. Wetmore, 124 N. Y. 241; McNeal v. Hayes, 118 App. Div. 130.)</p> <p>Inasmuch as the plaintiff's claim is based upon a judgment of another state, he is only a general creditor in this jurisdiction. A creditor cannot maintain a creditor’s action without alleging the obtaining of a judgment in_a court of this state and the return of an execution thereon unsatisfied. (Patchen v. Rofkar, 12 App. Div. 475; Davis v. Bruns, 23 Hun, 648; Weaver v. Haviland, 68 Hun, 376; Tarbell v. Griggs, 3 Paige Ch. 207; Bartlett v. Drew, 60 Barb. 648; N. T. Bank v. Wetmore, 124 N. Y. 241; Capital City Bank v. Parent, 20 Civ. Pro. Rep. 38; Adsit v. Butler, 87 N. Y. 585; Allyn v. Thurston, 33 N. Y. 626; Estes v. Wilcox, 67 N. Y. 264; O. Nat. Bank v. Olcott, 46 N. Y. 12.)</p>

<p>Appeal from a judgment of the Court of General Sessions of the Peace in the county of New York rendered February 19, 1910, upon a verdict convicting the defendant of the crime of murder in the first degree.</p>

<p>Appeal from a judgment of the Supreme Court, rendered May 24, 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 a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 13, 1909, affirming a judgment in favor of defendant entered upon a verdict directed by the court 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 been occasioned by the negligence of defendant, his employer.

The motion was made upon the ground that the reversal by the Appellate Division was upon the facts, and, therefore, not appealable to the Court of Appeals.

<p>Motion for re-argument. (See 198 N. Y. 209.)</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered January 11, 1910, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial at Special Term in an action to restrain the defendant from instituting any action or proceeding against the plaintiff for the recovery of penalties for violations of the provisions of the Labor Law requiring railroad corporations to pay their employees semi-monthly in cash.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 20, 1909, reversing a judgment in favor of defendants entered upon a decision of the court at a Trial Term without a jury and granting a new trial.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered January 4, 1910, which confirmed a determination of the defendant in assessing a franchise tax against the relator for the year 1907.</p>

<p>Appeal from an order of the Appellate Division of' the Supreme Court in the third judicial department, entered January 4, 1910, which confirmed a determination of the defendant in assessing a franchise tax against the relator for the year 1907.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 31, 1909, which reversed a judgment dismissing the complaint entered upon an order of Special Term granting a motion by defendant for judgment on the pleadings in an action for the foreclosure of a mechanic’s lien. The following questions were certified: “ 1.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered December 30, 1909, which 'reversed an interlocutory judgment of Special Term overruling a demurrer to the complaint and sustained such demurrer in an action to recover royalties due under an alleged license agreement. The following question was certified : “ Does the complaint herein state facts sufficient to constitute a cause of action ? ”

Cross-appeals from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 6, 1910, which modified and affirmed as modified an order of Special Term in so far as it allowed interest on certain awards made in the above entitled proceeding.

<p>Appeal from ’ an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 15, 1909, 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 impress a trust on the proceeds of certain real property.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 26, 1909, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court in an action on contract.’</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February 24,1910, affirming in part and reversing in part an order of Special Term made in proceedings to distribute an award in condemnation proceedings instituted by the city of New York for street opening purposes.</p>