Volume 20 — Bedell

This action was brought to recover a penalty of $100 alleged to have been incurred by the defendant in that on the 13th of August, 1902, he “ did offer and expose for sale three cans of milk ” which was adulterated and did contain a foreign substance, to wit, formaldehyde as a preservative.” There was neither allegation nor proof that formaldehyde is unwholesome or that it injures milk or renders it less valuable or that any fraud was intended or committed by the defendant…

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

The nature of the action and facts, so far as material, are stated in the opinion. The act of 1896 repeals by implication all prior Statutes of Limitation. (L. 1896, ch. 910; Johnson v. A. & S. R. R. Co., 54 N. Y. 416; Campbell v. Holt, 115 U. S. 620; Wallace v. Mayor, etc., 53 App. Div. 187.) The action is barred by the Statutes of Limitation.

Appeal, by permission, from a judgment of the Appellate. Division of the Supreme Court in the first judicial department, entered March 7, 1904, which affirmed a judgment of the General Term of the City Court of the city of New York affirming a 'judgment in favor of plaintiff entered upon a verdict rendered at a Trial Term of said City Court.

The nature of the action and the facts, so far as material, are stated in the opinion. The complaint states a cause of action. (Potter’s Dwarris on Statutes, 184, note 6; Waller v. Harris, 20 Wend. 561; Penfold v. U. L. Ins. Co., 85 N. Y. 317; Matter of Town of Hempstead, 36 App. Div. 321.) The contention that the defendants in auditing the bills were acting in a judicial capacity and, therefore, their acts could not be successfully attacked in this suit is untenable.

The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in refusing to charge that the defendants had the right to termínate the employment of the plaintiff at any time if the plaintiff did not within a reasonable time procure a purchaser of the property. (Gerding v. Haskins, 141 N. Y. 519; Hay v. Platt, 66 Hun, 488; Wylie v. M. Nat. Co., 61 N. Y. 415; Baker v. Thomas, 12 Misc. Rep. 432; Ware v. Dos Passos, 4 App.

, deceased. The facts, so far as material, are stated in the opinion. So far as the Dows residuary is concerned, there is no will but the Dows will. (L. 1896, ch. 547, § 31; Fowler’s Real Prop.

' The facts, so far as material, are stated in the opinion. The order of publication under which jurisdiction is claimed to have been obtained of certain of the defendants was made upon insufficient proof. (Code Civ. Pro. § 438; Kendall v. Washburn, 14 How. Pr. 180; Salisbury v. McGibbon, 58 App. Div. 524; Carleton v. Carleton, 85 N. Y. 313; McCracken v. Flanagan, 127 N. Y. 493; Orr v. Currie, 14 Misc.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department entered September 9, 1904, which affirmed an order of the Hadison County Court dismissing a petition for an oyder directing the removal of the defendant from certain real property and also affirmed an order denying a motion for a new trial. The facts, so far as material, and the question certified are stated in the opinion.

Lansing, during her life, and over which the said decedent was given a power of appointment. On the 11th of April, 1869, Thomas Suffern, a resident of the city of ¡New York, died, leaving a last will and testament which was admitted to prohate by the surrogate of said county on the 17th of June following. The provisions of his will, so far as material on this appeal, are as follows : 11 Sixth.

Appeal, by permission, from, an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 23, 1905, which reversed an interlocutory judgment of Special Term sustaining a demurrer to the answer and overruled sucli demurrer. The following questions were certified :■ “ 1.

Surrogate’s Court settling the accounts of the administratrix herein and directing distribution of the estate.

The respondent, John Glass, was the owner of premises known as Numbers 3, 5, 5|-, Y, 9, 11, 13 and 15 Bloomfield street and Little West Twelfth street, in the borough of Manhattan, which were taken by the city of New York in this proceeding.

<p>1. Appeal — Wiiex Exception Raises Constitutional Question Below. An objection by the appellants that the constitutionality of a statute under which they claim office cannot be attacked for the first, time on appeal to the Court of Appeals is without force, where an exception was taken to the decision of the trial judge that they were lawfully appointed, and the constitutional question was the only one discussed in the-opinion of the Appellate Division.</p> <p>3. Oswego, (City of) —Member of Municipal Board of Health Is a City Officer—Yaoancy in Office Must Bf. Filled by City Authorities — Const. Art. 10, § 3. That part of the Public Health Law (L. 1893, eh. Gfil, § 20) directing a county judge to till a vacancy occurring in a. city board of health which has continued for thirty days so far as it relates to filling a vacancy occurring in the board of health of the city of Oswego, is unconstitutional, in tint, members of that hoard, are city officers, within the meaning of section 3, article 10 of the Constitution, and arc particularly described as such in the chai ter and therefore must be .appointed as designated therein.</p>

The complaint herein alleges “ that theretofore and on or about the 26th day of September, 1900, plaintiff was a passenger on one of the defendant’s cars on its said elevated line on Myrtle avenue, which car was crowded with passengers, by reason of which fact plaintiff was obliged to, and did, stand therein; that at or near the Vanderbilt avenue station of said line the defendant, neglecting and failing in its duty as a common carrier in the premises, negligently and…

The facts, so far as material, are stated in the opinion. The commissioners assessed the entire estate in the hands of both trustees at $50,000. Held: jointly by two trustees, one of whom is a resident of the city of New York, one-half of the estate so held may be assessed there for purposes of taxation. (People ex rel.

<p>' Sale of Decedent’s Real Estate — When Proceeds Thereof Cannot Be Used to Pay Expenses of Administration — Code Civ. Pro. §§ 3749-2801. Under the provisions of section 2798, construed with other sections of title 5 of chapter 18 of the Code of Civil Procedure as it read at the time of the commencement of this proceeding in June, 1900, no part of the proceeds of real estate sold for the payment of the debts and funeral expenses of a decedent can be used to reimburse the executrix for the expenses of administration, consisting mainly of the amount paid to the attorneys employed by her in a contest over the probate of the will.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The mailing of the notice within five days was sufficient, the contract not contemplating that the notice should reach the defendants within five days of the date of the bill of lading. (Beakes v. Da Cunha, 126 N. Y. 297; Peabody v. Saterlee, 166 N. Y. 174; Hicks v. V. A. Assur.

In Hovember, 1903, a corporation known as W. C. Loftus & Co., engaged in the retail clothing and tailoring business in the city of Hew York, sold to the defendant its entire stock, fixtures and lease for a consideration of $22,953.86. Within-a few days thereafter a petition in involuntary bankruptcy proceedings was filed against it, and the plaintiff was elected trustee thereunder.

The nature of the action and the facts, so far as material, are stated in the opinion. The assignments containing the agreements of the defendants Decker and Moore, although spoken of as guaranties, are not guaranties strictly speaking. They are agreements providing for the collection of the notes and mortgages out of the mortgaged premises in a particular way and by specially provided steps or modes of procedure.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered ¡May 18, 1903, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>Plaintiff’s intestate was lawfully on defendant’s tracks and in its yards. (Smith v. N. Y. & H. R. R. Co., 19 N. Y. 127; Harold v. N. Y. C. R. R. Co., 13 Daly, 89; Collins v. N. Y & N. H. R. R. Co., 23 J. & S. 31; Young v. N. Y. C. & H. R. R. R. Co., 30 Barb. 229; 13 Daly, 294; McDermott v. N. Y. C. & H. R. R. R. Co., 28 Hun, 325.) The doctrine of co-employee has no application. (Sullivan v. T. R. R. Co., 112 N. Y. 643; Thomp. on Reg. 1040-1044; Svenson v. A. S. Co., 57 N. Y. 108; Roach v. F. O. P. Co., 18 Wkly. Dig. 124; 95 N. Y. 660; Harold v. N. Y. C. R. R. Co., 13 Daly, 89; Young v. N. Y. C. R. R. Co., 13 Daly, 294; 30 Barb. 229; Murphy v. N. Y C. & H. R. R. R. Co., 44 Hun, 247; affd., 118 N. Y. 527; Wood on Mast. & Serv. § 424; Kilray v. D. & H. C. Co., 121 N. Y. 22; O’Leary v. E. R. R. Co., 169 N. Y. 289.) The refusal to submit the question of defendant’s negligence to the jury was error. (Green v. Miller, 74 Hun, 271; Sylvester v. Wheeler, 74 Hun, 382; Anderson v. Young, 66 Hun, 240; Skerry v. N. Y. C. & H. R. R. R. Co., 104 N. Y. 652; Harris v. Perry, 89 N. Y. 308; Clemence v. City of Auburn, 66 N. Y. 338; Hayne v. Blair, 62 N. Y. 19; McPeak v. H. Y. C. & H. R. R. R. Co., 85 Hun, 107; Dempsey v. N. Y. C. & H. R. R. R. Co., 81 Hun, 156; Barry v. N. Y. C. & H. R. R. R. Co., 92 N. Y. 289; Stinson v. N. Y. C. & H. R. R. R. Co., 32 N. Y. 333, 338.) Plaintiff’s intestate was free from contributory negligence. (Cordell v. N. Y. C. R. R. Co., 70 N. Y. 119; Plank v. N. Y. C. R. R. Co., 60 N. Y. 607; Jetter v. N. Y. C. R. R. Co., 41 N. Y. 154; Dolan v. D. & H. C. Co., 17 Alb. L. J. 36; Coughtry v. G. W. Co., 56 N. Y. 124; Harpell v. Curtis, 1 E. D. Smith, 78; Ernst v. H. R. R. R. Co., 35 N. Y. 9; Wells v. N. Y. C. & H. R. R. R. Co., 78 App. Div. 1; Pantzar v. T. F. I. Co., 99 N. Y. 376; Booth & B. & A. R. R. Co., 123 N. Y. 280.)</p> <p>It is perfectly clear from the evidence that plaintiff’s intestate was guilty of negligence contributing to the accident, not only in selecting an unsafe place to walk but in not using active vigilance to discover the approaching engine and to get to a place of safety. (Young v. N. Y., L. E. & W. R. R. Co., 107 N. Y. 500; Cullen v. D. & H. C. Co., 113 N. Y. 667; Mulheisin v. D., L. & W. R. R. Co., 81 Penn. St. 366; P. R. R. Co. v. O’Shaughnessy, 23 N. E. Rep. 675; R. R. Co. v. Long, 112 Ind. 166; Tuttle v. Railway Co., 122 U. S. 189; Bresnahan v. R. R. Co., 49 Mich. 410; Smith v. N. Y. C. & H. R. R. R. Co., 137 N. Y. 562; Wild v. H. R. R. Co., 24 N. Y. 430.) Ho negligence on the part of the defendant is disclosed by the evidence. (Crowe v. N. Y. C. & H. R. R. R. Co., 70 Hud, 37; Moccia v. N. Y. C. & H. R. R. R. Co., 46 App. Div. 58; Aerkfetz v. Humphreys, 145 U. S. 418; Goods v. Boston, etc., R. Co., 162 Mass. 287; Elliott on Railroads, 1971, § 1258 ; Goodall v. N. Y. C. & H. R. R. R. Co., 89 Hun, 559; Malone v. B. & A. R. R. Co., 51 Hun, 532; Murphy v. N. Y. C. & H. R. R. R. Co., 62 Hun, 587; Harty v. C. R. R. of N. J., 42 N. Y. 468; Crystal v. T. & B. R. Co., 124 N. Y. 519; Vandewater v. N. Y. & N. E. R. R. Co., 135 N. Y. 583.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The bank’s title must fail, because it is not a bona fide purchaser without notice. (Tuttle v. Jackson, 6 Wend. 226; 1 Story’s Eq. Juris. § 400; Grimstone v. Carter, 3 Paige, 421; Jackson v. Post, 15 Wend. 588; Brown v. Blydenburgh, 7 N. Y. 141.) There is no evidence to sustain the' finding that the Salt Springs National Bank was a purchaser in good faith.

The nature of the action and the facts, so far as material, are stated in the opinion. The widow and next of kin being non-resident aliens, this action cannot be maintained for their benefit. (C., C., C. & St. L. Ry. Co. v. Osgood, 70 N. E. Rep. 839; Deni v. P. Ry. Co., 181 Penn. St. 525; McMillan v. S. L., etc., Co., 91 N. W. Bep. 979; Adam v. British, etc., Co., L. R. [2 Q. B. D. 1898] 430; Brannigan v. U. G. M. Co., 93 Fed.

Tire nature of the action and the facts, so far as material, are stated in the opinion. The judgment below was wrong in that it included in the award damages resulting from the operation of the trains after February 16, 1897. (Fries v. N. Y. & H. R. R. Co., 169 N. Y. 270.) Errors were committed by the trial court in the reception of testimony.

<p>Divorce—When Lien of Mortgage Given to Secure Payment of Alimony Terminates upon Death of the Divorced Husband. The general obligation to pay alimony, awarded to an innocent wife by a judgment of absolute divorce, ceases at the death of the husband: and the fact' that a decree awarding to a wife, as alimony, a certain sum annually “so long as she shall live,” required the husband, under section 1772 of the Code of Civil Procedure, to give the wife a mortgage upon real estate as security for the payment of the alimony so long as she should live, docs not enlarge the husband’s obligation, and the lien of the mortgage terminates upon his death.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The complaint alleges a good cause of action against Pierce as trustee. (Berolzheimer v. Strauss, 19 J. & S. 99; Soldiers’ Home v. Sage, 11 Misc. Rep. 164; Collins v. Stewart, 2 App. Div. 278; Stillwell v. Carpenter, 62 N. Y. 639; Beers v. Shannon, 73 N. Y. 297; Bank v. Shuber, 153 N. Y. 173; Genet v. De Graaf, 27 App. Div. 238; Patterson v. Copeland, 52 How.

<p>Cross-appeals from a judgment of the Appellate Division of the Supreme Court- in the third judicial department, entered June 10,1904, affirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury.</p> <p>The nature of the action and the facts, so far as material,. ave stated in the opinion.</p> <p>The contract between John J. Evans and the defendant being valid when entered into and Evans having fully complied with all the terms thereof, the defendant could make no change therein without the consent of Evans. (Parish v. N. Y. P. Exch., 169 N. Y. 147; Langan v. Supreme Council, 174 N. Y. 269; Kent v. Q. M. Co., 78 N. Y. 82; O'Brien v. H. B. Society, 103 N. Y. 310.)</p> <p>The beneficiary of Evans can be paid or recover only in accordance with the contract between Evans and the defendant at the death of Evans. Her claim rests solely in contract, and in the contract which existed at Evans’ death. (Sanger v. Rothschild, 123 N. Y. 577; Hellenberg v. Dist. No. 1, 94 N. Y. 580; Sabin v. Phinney, 134 N. Y. 423.) The provisions of the by-laws as amended January 11, 1892, and carried forward in the by-laws of yovember 29, 1892, and March 20, 1893, relating to monthly assessments and payments of benefits were valid and binding as to Evans and his beneficiary. (Sabin v. Phinney, 134 N. Y. 423; People v. Grand Lodge, 156 N. Y. 533; Engelhardt v. Fifth Ward Loan Assn., 148 N. Y. 281; Supreme Lodge v. Knight, 117 Ind. 489; Wilson v. U. M. F. Ins. Co., 58 Atl. Rep. 799; 1 Bacon Ben. Soc. & L. Ins. Co. [2d ed.] §§ 81, 185, 188; Berdman v. St. Paul Mut. B. Assn., 29 Minn. 275; Diligent Fire Company v. Comm., 75 Penn. St. 291; Kent v. Mining Co., 78 N. Y. 159; Stohr v. M. F. Society, 82 Cal. 557; 6 Am. & Eng. Ency. of Law [2d ed.], 956; Tisch v. P. H. Circle, 74 N. E. Rep. 188; Shipman v. P. H. Circle, 174 N. Y. 398; Gilmore v. Knights of Columbus, 58 Atl. Rep. 223.)</p>

Appeal' from an order of the Appellate Division of the Supreme Court in the second judicial department, entered April 21, 1905, which modified and affirmed as modified a decree of the Kings County Surrogate’s Court construing the will of Charles W. Trotter, deceased. The material portion of the will is as follows ; “ First.

<p>Tax — Action against State Officers to Cancel Tax Sale Deeds — State Necessary Party— When Action Cannot Be Maintained. The state is a necessary party to an action brought by the owner and possessor of certain lands against the commissioners of the land office and the comptroller of the state of New York to have certain deeds, executed by the comptroller to the people of the state on sales of said lands for unpaid taxes, adjudged illegal and void, and to have the record thereof canceled, since it is the title of the state to such lands that is to be passed upon, not a trespass or any other illegal act of the defendants; and as there is no statute authorizing a suit against the state for the matter set forth in the complaint, the action cannot be maintained.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 21, 1905, which affirmed an order of Special Term vacating and setting aside a judgment theretofore entered in the above-entitled action. This action was tried in the city of Hew York in May, 1904. At the conclusion of the charge to the jury, the justice presiding at the trial intimated to counsel that he desired to leave for his home in Hudson.

<p>Tax—Assessors] Stipulation as to Reduction of Assessment on Leased Lands Improperly Considered by Court in Proceeding to Review Assessment. . A stipulation made by assessors, in a proceeding to review an assessment of land claimed to be held under leases, that if the court decides that the owner is not entitled to immediate possession then the assessment may be reduced to a specified sum, fails where the court properly refuses to pass upon the question of the validity of the leases in such a proceeding and should be disregarded; and the court should proceed and ascertain by reference or otherwise the fair value of the land, as a basis upon which the owner is taxable, notwithstanding the existence of the leases.</p>

Jewett, deceased. The facts, so far as material, are stated in the opinion. This is not a case of misnomer of a legatee, but one where there is an entire failure to name any legatee, and the court cannot supply that omission.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 5, 1905, which affirmed an interlocutory judgment of Special Term overruling a demurrer to the complaint. The following question was certified : “ Does it appear upon the face of the amended complaint in this action that causes of action have been improperly united in that “First.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 12, 190é, affirming a judgment in favor of plaintiff and defendant Chesapeake and Ohio Railway Company entered upon a decision of the court on trial at Special Term.</p>

(See 173 N. Y. 549.) The motion 'was made upon the grounds that the Court of Appeals had not considered the following contentions of the defendant upon- the original appeal: “ 1.