Volume 200 — New York Reports

<p>Riparian rights — priority of rights to water power upon same stream — construction of deeds conveying rights to such water power to several grantees — effect of practical construction hy acts and user of adjacent owners.</p> <p>The owner of a water power built a dam across a river, so situated that the water could be used to run machinery not only on the main bank, but also upon the banks of islands in the stream, and sold a number of mill sites with water rights attached. He reserved, however, from all the leases and conveyances subsequently made, the first right to use the water for a site upon which he erected a blast furnace. The latest right granted, that now belonging to appellant, was in the following terms: “ Together with the right to the use of water sufficient to run a grist mill and a saw mill, the use, however, of said water to he subordinate to the rights of prior purchasers and owners of the mills and machinery now erected below the above-described premises.” The blast furnace was used almost continuously for purposes requiring much power and the language of'the conveyances creating the water powers was full and clear in describing the reservation in its favor. Until about the time this action was commenced the appellant and its grantors had neither exercised nor asserted any claim of prior right over the water powers. For some time prior to the trial the appellant had ceased to use its water right and had transferred its plant to another site, while the blast furnace property was in use all the time, but of late years not for a blast furnace. This action was brought to define and limit the water rights of the various parties. Held, that it was the intention of the parties to the deed under which appellant has title that the use of water given by that deed should be subordinate to the rights appurtenant to the blast furnace property.</p> <p>Practical construction by uniform and unquestioned acts from the outset, especially when continued for a long period of time, is entitled to great if not controlling weight, for it shows how the parties who made the contract understood it. Such a construction is presumed to be right, because it was made by the parties themselves when under the influence of conflicting interests, and this is true whether the construction is by contemporaries or their successors.</p> <p>It is a general rule of construction, applicable to grants of water powers, that when the question arises whether, by a grant of a sufficient quantity of water to propel a particular kind of machinery, the terms employed are used merely to indicate the quantity of water intended to be granted, or to restrict the use of the water to the machinery specified, the former construction is to be favored when the language of the grant will admit of such construction.</p> <p>The grants were with varying descriptions of the water rights and for various purposes, and except in a single instance, and then only indirectly, did the grant cover a definite quantity of water. In some cases the mill named was never erected, but the water was used for other purposes apparently with the consent of all concerned. Not one of the water powers is now used for the purpose named in the original grant. The practical construction of the parties for more than one generation in most cases, more than two in some and for a long period in all, the surrounding circumstances, the consideration for the grants, the comparative size, value and importance of the respective properties alleged to be superior or inferior in right, the environment and the apparent object of the grantor in creating the properties to aid in building up the locality, all point in the direction of an intent to determine the quantity of water to be used rather than to restrict its use to the machinery specified. The grants are construed as placing a limit upon quantity and not upon purpose.</p>

<p>Indictment—Grand Larceny—Not Necessary to State that Party from Whom Money was- Taken was an Association or Corporation.</p> <p>An indictment charging the defendant with grand larceny for having feloniously appropriated to his own use a designated sum of money, the property of a party bearing a corporate name, is not defective, and, therefore, is not demurrable, because it fails to state that such party is an association or corporation.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The complaint states a cause of action against the defendants personally and individually. (Taylor v. Davis, 110 U. S. 330; Keating v. Stevenson, 21 App. Div. 604; New v. Nichol, 73 N. Y. 127; Mygatt v. Wilcox, 45 N. Y. 309; Schmittler v. Simon, 101 N. Y. 554; Duval v. Craig, 2 Wheat. 45.) The defendants are partners as between themselves in the enterprise in question.

The nature of the action and the facts, so far as material, are stated in the opinion. The notice was insufficient to permit a recovery under the Employers’ Liability Act. (Finnigan v. N. Y. C. Co., 191 N. Y. 244; Logerto v. C. B. Co., 198 N. Y. 390; Miller v. S. P. Co., 109 App. Div. 135; Bovi v. Hess, 123 App. Div. 389; Flanagan v. C. C. Co., 134 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The facts found by the referee clearly indicate that there was no intention on the part of the parties to the Wickham deed of 1814 that the grantor should retain the gypsum, and they wholly fail to sustain the referee’s conclusion tliat gypsum was covered by the exception.

<p>Sale — when purchaser of good will of business may enjoin former member of'firm from soliciting business from customers — when sale of good will deemed voluntary.</p> <p>The good will of a business, which the owner thereof parts with in invitam, is a lesser property than the good will, which is the subject of a voluntary sale and transfer by the owner for a valuable consideration.</p> <p>A purchaser fora valuable consideration, on a voluntary sale of the good will of the business of a firm, may enjoin former members thereof from soliciting business from the customers of the old firm.</p> <p>The sale of the good will of a partnership business is to be deemed a voluntary transaction, notwithstanding the fact that it anticipated by only a short time the actual termination of the partnership, and was made as an alternative of a liquidation.</p>

<p>Officers — administration of an oath — commissioner of deeds cannot recover for services in taking affidavits when he did not administer the oath in compliance with the statute — when municipality not required to pay for oaths administered to city-official.</p> <p>Whatever the form adopted in administering an oath it must be in the presence of an officer authorized to administer it, and it must .be an unequivocal and present act by which the affiant consciously takes upon himself the obligation of an oath.</p> <p>A commissioner of deeds in the city of New York on trial of an action to recover against the city for services in taking affidavits at its request, testified in reply to the question, “Did each and every one of the affiants, whose names are set forth in the bill of particulars, appear before you in person on the respective days set forth or set opposite their names and swear to the truth oE the contents of the affidavits subscribed by them?” “I don’t have them coming in to ms and raising their hands; no, sir; they go and sign them, and I say is that true, and they go right out.” Held, that he did not perform his duties as commissioner of deeds by administering oaths according to the requirements of the statute so as to entitle him to the fee prescribed therefor.</p> <p>The city by virtue of the statute is bound as by a contract to pay an officer for legitimate expenditures made by him; but no statutory or contractual relation exists between the city and the commissioner of deeds, upon winch an action can be founded for administering oaths to a city officer. His remedy is against the person who procured the service rendered, and if it is by a public officer it should be demanded at the time the service is rendered, or within such time thereafter as would enable the officer, in the presentation of his claim for audit, to include the same and be reimbursed.</p>

Garretson, Samuel T. Maddox and Harrington Putnam for the office of justices of the Supreme Court. The facts, so far as material, are stated in the dissenting opinion. The Election Law expressly prohibits both the nomination by committee of nominees already named by another political party and. the substitution of candidates already named to fill vacancies by committee. (Cons. Laws, ch. 17, §§ 120, 121, 133, 135, 136; Matter of Gillespie v. McDonough, 39 Misc.

The nature of the action and the facts, so far as material, are stated in the opinion. Plaintiff is barred from recovery. (Bishop on Mar. & Div. § 426; Church v. State, 7 N. Y. S. R. 178; Yoeston v. Yoeston, 32 N. J. Eq. 498; Higgins v. Crouse, 147 N. Y. 411; Talmage v. Russell, 74 App.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 28, 1909, affirming a judgment in favor of defendant entered upon a dismissal of the complaint’by the court at a Trial Term.</p> <p>The action was brought to recover damages occasioned by the collapse of a building owned by the defendant and part of which had been leased to plaintiffs.</p> <p>The defendant was the owner of two buildings, known respectively as No. 65 and No. 67 East Eighth street in the city of New York, and which on their adjacent sides were supported by a common wall. The plaintiffs rented all or part of the third floor of the former building. Thereafter and while the lease was in force the defendant undertook to remove the building No. 67 and erect a new one in the place thereof, making a contract with one of the other defendants for so doing, and an excavation estimated at from eight to fifteen feet deep and of considerable length was made next to the wall of No. 65. At first this latter wall was shored up by three beams running from it across the lot of No. 67 to the wall of No. 69, but two or three days before the occurrences complained of, two of these supports were taken down and on the morning in question the remaining one. The building No. 65 was four stories high and upwards of ninety feet in length. Apparently as the result of these various acts the wall of the building and a large portion of the building collapsed and the appellants’ goods were injured.</p> <p>The case has been tried twice. On the first trial it was submitted to the jury solely on the theory that the defendant in violation of the provisions of the Building Code of the city of New York had failed to properly shore up the wall of the building which was left standing and the judgment in plaintiffs’ favor was reversed on the ground that those provisions did not apply to a case where the same person owned the adjoining lots as in this case. On the second trial, the case was submitted by the court to the jury on the theory of negligence in making the excavation independent of said Code provisions, but the submission was limited by holding that defendant having made a contract to do the work which resulted in the accident thereby avoided responsibility for anything which was done within the limits of the contract and only became liable for personal negligence outside thereof. At the close of the evidence the trial judge reserved his decision on the defendant’s motion to dismiss the plaintiffs’ complaint pending the verdict by the jury. While the submission to the jury, which was doubtless intended to be in accordance with section 1187 of the Code, did not call for a special verdict, but was a general submission, both parties seem to have acquiesced in this method of procedure. When the jury rendered its verdict in favor of the plaintiffs the defendants made a motion for a new trial under section 999 of the Code, but the. trial judge disregarded this and reverted back to and granted the motion for a nonsuit.</p> <p>This appeal being from a judgment of nonsuit, the appellants are entitled to the benefit of every fact the jury could have found from the evidence given, and to every legitimate inference in their favor warranted by the evidence. (Rehberg v. Mayor, etc., 91 N. Y. 137; McNally v. P. Ins. Co., 137 N. Y. 389; Higgins v. Eagleton, 155 N. Y. 466; Koehler v. N. Y. Steam Co., 183 N. Y. 1; Boreel v. Lawton, 90 N. Y. 293; Murphy v. Gedney, 10 Hun, 151.) The plaintiffs proved a cause of action at common law, based upon the breach of duty imposed upon the defendant as their landlord. (Snow v. Pulitzer, 142 N. Y. 263; Butler v. Cushing, 16 Hun, 521; Judd & Co. v. Cushing, 50 Hun, 181; Hine v. Cushing, 53 Hun, 519.) The fact that the defendant employed a competent architect and an independent contractor does not relieve him from liability. (Sciolaro v. Asch, 198 N. Y. 77; Sulzbacher v. Dickie, 6 Daly, 469; O'Rourke v. Feist, 42 App. Div. 136; Randolph v. Feist, 23 Misc. Rep. 650; Blumenthal v. Prescott, 70 App. Div. 560.) The cause of action so proved was sufficiently pleaded. (Levy v. G. M. P. Co., 80 App. Div. 384; Baylies’ Trial Practice [2d ed.], 318; Carroll v. Deimel, 95 N. Y. 252; Learned v. Tillotson, 97 N. Y. 1; Hackett v. View, 109 App. Div. 351.) The provisions of section 22 of the Building Code inure to the benefit of a tenant as well as the owner of a building adjoining an excavation. (Cohen v. Simmons, 21 N. Y. Supp. 385; 142 N. Y. 671; Blanchard v. Savarese, 97 App. Div. 58; 184 N. Y. 537; Paltey v. Egan, 122 App. Div. 512.) For a violation of the duty enjoined by that section absolute and unqualified liability is imposed upon the defendant. (Dorrity v. Rapp, 72 N. Y. 307; Post v. Kirwin, 133 App. Div. 404; Willey v. Mulledy, 78 N. Y. 310; Pauley v. S. G. & L. Co., 131 N. Y. 90; Knisley v. Pratt, 148 N. Y. 372; Huda v. A. G. Co., 154 N. Y. 474; Jetter v. N. Y. & N. H. R. R. Co., 2 Abb. Ct. App. Dec. 158; Pitcher v. Lennon, 12 App. Div. 356; Rooney v. B. C. Co., 107 App. Div. 258.) The duty enjoined by the Building Code being absolute, the defendant is not relieved from liability by showing that he employed a competent architect and committed the work to an independent contractor. (Dorrity v. Rapp, 72 N. Y. 307; Stewart v. Ferguson, 164 N. Y. 553; McLaughlin v. Eidlitz, 50 App. Div. 518; Siversen v. Jenks, 102 App. Div. 313; Pitcher v. Lennon, 12 App. Div. 356; Ring v. City of Cohoes, 77 N. Y. 83.) The evidence is sufficient to support a recovery on the ground of negligence. (Butler v. Cushing, 46 Hun, 521; Judd & Co. v. Cushing, 50 Hun, 181; Hine v. Cushing, 53 Hun, 519.)</p> <p>There is no exception in the record presenting the question whether section 22 of the Building Code applies to the case at bar; in fact, it does not apply; and, if it did, there is no evidence of a violation of it by the respondent. (Serviss v. McDonnell, 107 N. Y. 260; Wicks v. Thompson, 129 N. Y. 634; Hecla Powder Co. v. Sigua Iron Co., 157 N. Y. 437; Sullivan v. Dunham, 161 N. Y. 290; Wangner v. Grimm, 169 N. Y. 421; Atlantic Dock Co. v. City of Brooklyn, 3 Keyes, 444; Harris v. N. I. R. R. Co., 20 N. Y. 232; People v. Brooks, 131 N. Y. 321; Parsons v. Brown, 15 Barb. 590; Govers v. Hofstatter, 41 App. Div. 384; Gray v. Shepard, 79 Hun, 467; Duryea v. Lester, 11 J. & S. 564.) The Building Code has no application to this case. (L. 1882, ch. 410, § 474.) The case was neither pleaded nor tried upon the theory that the respondent was liable merely by reason of his status as the plaintiffs’ landlord, and no such point is before this court. (Sullivan v. Dunham, 161 N. Y. 290; Salisbury v. Howe, 87 N. Y. 128; O'Neill v. N. Y., O. & W. Ry. Co., 115 N. Y. 579; Greene v. Smith, 160 N. Y. 533; MacArdell v. Olcott, 189 N. Y. 368; Stenton v. Jerome, 54 N. Y. 480; Serviss v. McDonnell, 107 N. Y. 260; Weichsel v. Spear, 15 J. & S. 223; Driscoll v. Downer, 55 Hun, 531; Wangler v. Swift, 90 N. Y. 38; Marks v. R. Ry. Co., 146 N. Y. 181.) Upon the only ground of liability which is before this court, the trial judge correctly held that there was no evidence to support a verdict. (Coon v. S. & U. R. R. Co., 5 N. Y. 492; N. Y. C. & H. R. R. R. Co. v. City of Rochester, 127 N. Y. 591; Pollen v. Le Roy, 10 Bosw. 38; 30 N. Y. 549; Mount v. B. U. G. Co., 72 App. Div. 440; Glennon v. E. R. R. Co., 86 App. Div. 397.)</p>

<p>Cross-appeals from an order of the Appellate Division of the Supreme Court in the third judicial department, entered May 23, 1910, which confirmed in part and reversed in part a determination of the defendant in assessing franchise taxes against the relator under section 185 of the Tax Law for the years ending June 30, 1907, 1908 and 1909 respectively.</p> <p>Said comptroller held that for the privilege of exercising its corporate franchise in operating an elevated street railroad under lease the relator should pay an annual tax of one per cent upon the gross earnings derived not only from the operation of said road but also from the operation of its independent subway railroad and also three per cent upon the amount of dividends declared or paid in excess of four per cent upon the actual amount of paid-up capital employed by such corporation in the operation of said subway road as well as, if any, in the operation of said elevated railway. The gross receipts from the operation of each road amounted to several million dollars each year and there is no opposition by relator to the imposition of the tax.upon the gross receipts derived from the operation of the elevated road.</p> <p>Tire Appellate Division affirmed the former part of the Comproller’s determination but overruled the latter part relating to tax on dividends.</p> <p>Under the so-called Eapid Transit Act, chapter 4, Laws of 1891, the city of New York entered into what were known as rapid transit contracts No. 1 and No. 2 respectively with one McDonald and the Eapid Transit Subway Construction Company for the construction, equipment and operation of a subway railroad in the boroughs of Manhattan and Brooklyn. The relator was organized under the provisions of the Bail-road Law and of said Eapid Transit Act and its certificate of incorporation provided that it should have the power to undertake the construction, equipment, operation and maintenance of the railroad then constructed and in process of construction under the McDonald contract and also the power to enter into and perform any contract for the construction and operation of any other rapid transit railway authorized or which might be authorized to be constructed under the provisions of said Rapid Transit Act.</p> <p>Thereafter said relator acquired the right and assumed the duty of equipping and operating the subway railroad constructed under the two contracts hereinbefore referred to under assignments or agreements dated June 10, 1902, and August 10, 1905. In addition to this, on or al out April 1, 1903, it made a lease with the Manhattan Railroad Company whereby it undertook the operation of various elevated railroads in the boroughs of Manhattan and the Bronx owned or controlled by said company, and during all of the years involved in this controversy it was engaged in operating both subway railroads and elevated railroads under the contracts and leases referred to.</p> <p>The relator’s operation of the elevated railroads in New York city under the lease from the Manhattan Railway Company has not made it subject to the franchise tax measured by a percentage on its subway earnings. (People ex rel. I. R. T. Co. v. Tax Comrs., 126 App. Div. 610; C. R. R. Co. v. Georgia, 92 U. S. 655; Wright v. G. R. R. Co., 216 U. S. 420.) The relator is exempt from all taxation by section 35 of the Rapid Transit Act, and the effect of section 185 of the Tax Law, as construed by the Supreme Court in this case, in so far as it sustains a franchise tax measured by a percentage of relator’s gross earnings from subway operations, impairs the obligation of a valid contract. (People ex rel. I. R. T. Co. v. Tax Comrs., 126 App. Div. 610; 195 N. Y. 618; Cooley on Taxn. [3d ed.] 343; J. B. Bank v. Skelly, 66 U. S. 436; New Jersey v. Yard, 95 U. S. 104; Will. R. R. Co. v. Reid, 80 U. S. 264; Humphrey v. Pegues, 83 U. S. 244; Farrington v. Tennessee, 95 U. S. 679; Dodge v. Woolsey, 18 How. [U. S.] 331; Asylum v. New Orleans, 105 U. S. 362; Bishop on Cont. § 996; Gillette v. Bank of America, 160 N. Y. 549; White v. Hoyt, 73 N. Y. 505.) Relator is not subject to a franchise tax under section 185 of the Tax Law measured, by a percentage of its subway earnings. (Dwarris on Statutes, 749; People ex rel. M. T. Co. v. Miller, 177 N. Y. 51.)</p> <p>An exemption from taxation will not be allowed unless clearly and explicitly granted by the statute. (People ex rel. W. F. I. Co. v. Davenport, 91 N. Y. 574; People ex rel. T. T. S. R. Co. v. Comrs., 95 N. Y. 554; People v. Coleman, 121 N. Y. 542; 135 N. Y. 231.) The exemption granted the relator does not extend to its corporate franchise, but includes only certain specific property and property rights. (People ex rel. W. L. Co. v. Gaus, 199 N. Y. 147; People ex rel. I. R. T. Co. v. Tax Comrs., 126 App. Div. 610; 195 N. Y. 618; People ex rel. U. S. A. P. P. Co. v. Knight, 174 N. Y. 475; City of New York v. Bryan, 196 N. Y. 158; W. R. R. Co. v. Reid, 13 Wall. 264; P. R. R. Co. v. Maguire, 20 Wall. 36; Nichols v. N. H. & N. Co., 42 Conn. 103; State v. B. & O. R. R. Co., 48 Md. 49.) The exemption granted the relator, being merely a property exemption, does not prevent such property being made the measure of the franchise tax. (People ex rel. A. J. J. Co. v. Roberts, 159 N. Y. 70; People ex rel. U. S. A. P. P. Co. v. Knight, 174 N. Y. 475; Plummer v. Coler, 178 U. S. 115; Snyder v. Bettman, 190 U. S. 249; Pollock v. F. L. & T. Co., 157 U. S. 429; Comm. v. Provident Inst., 12 Allen, 312; Comm. v. Hamilton Co., 12 Allen, 298; Coite v. Society for Savings, 32 Conn. 173; Strode v. Commonwealth, 52 Penn. St. 181; Monroe Bank v. City of Rochester, 37 N. Y. 365.) That part of the tax based upon gross earnings was properly computed on the earnings from the subway as well as from the elevated railways. (People ex rel. N. Y. C. & H. R. R. R. Co. v. Roberts, 32 App. Div. 113; 157 N. Y. 677.) That part of the tax based on excess dividends was properly computed by the comptroller by considering all the dividends declared by the relator. (People ex rel. N. Y. C. & H. R. R. R. Co. v. Roberts, 32 App. Div. 113; 157 N. Y. 677; People v. H. Ins. Co., 92 N. Y. 328.) The statute makes the excess dividends declared upon all the capital employed the measure of the tax, not merely the dividends on capital employed in operating a surface or elevated road. (People ex rel. N. Y. C. & H. R. R. R. Co. v. Knight, 173 N. Y. 255; People ex rel. N. Y. & E. R. F. Co. v. Roberts, 168 N. Y. 14.) The relator was clearly employing its capital in the operation of the elevated roads. (People ex rel. L. D. Mills v. Wilson, 121 App. Div. 376; People v. Dayton, 55 N. Y. 367; Hassan v. City of Rochester, 67 N. Y. 528; People v. Adelphi Club, 149 N. Y. 5.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The General Tax Law applies to the assessment roll in question. (Mayor, etc., v. Mutual Bank, 20 N. Y. 387; People ex rel. Young v. Willis, 133 N. Y. 383; People ex rel. Haley v. Cahill, 181 N. Y. 403.) The tract is not sufficiently described to enable it to be identified.

<p>Cross-appeals from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 4, 1909, affirming in part and reversing in part a judgment in favor of defendant entered upon a decision of the court on trial at Special Term.</p> <p>This action was brought to restrain the defendant from extending Delavan avenue, in the city of Buffalo, across the tracks of the plaintiff, and from constructing and maintaining a grade crossing at such point. The trial court determined that the defendant was the owner in fee of a strip of land across plaintiff’s right of way, sufficient in width for the extension of the avenue in question, excepting such part as was actually used for railroad purposes, and as to that part it had the right to carry such avenue across the same and use it for highway purposes on giving to the plaintiff due notice and an opportunity for it to take such highway across its tracks and construct said crossing. The Appellate Division affirmed the determination of the trial court as to the title to the land in question, but held that the defendant should be enjoined from extending the avenue until it had complied with section 611 of the Railroad Law by securing a determination by the pub.ic service commission as to whether such avenue should be constructed over or under said railroad or at grade, and the manner in which such crossing should be constructed.</p> <p>The further material facts are stated in the opinion.</p> <p>The condemnation proceedings of 1867 were effectual to open and lay out Delavan avenue from Niagara street to the Erie canal and vest the lands in fee in the city of Buffalo. (Matter of City of Buffalo, 68 N. Y. 167; 72 Hun, 422; Matter of Cooper, 93 N. Y. 507; Mayor of New York v. M. Ry. Co., 143 N. Y. 1; People ex rel. McLaughlin v. Police Comrs., 174 N. Y. 456; Ryan v. City of New York, 177 N. Y. 279; Embry v. Connor, 3 N. Y. 511; City of Albany v. W. T. R. R. Co., 108 N. Y. 18; Sherman v. McKeon, 38 N. Y. 266.) In the year 1902 the city was in full possession of the lands taken for laying out Delavan avenue, and all the rights acquired under the condemnation proceedings, and entitled to the enjoyment thereof. There is no finding in the decision, evidence in the record or statute effectual to divest the city of the lands or rights thus acquired. (Matter of Lexington Avenue, 29 Hun, 303; 92 N. Y. 629; Matter of Wolsley, 95 N. Y. 135; Matter of Burns, 155 N. Y. 22; Indianapolis v. Croas, 7 Ind. 9; Cross v. Morristown, 18 N. J. Eq. 305; State v. Morristown, 33 N. J. L. 57; Vanderbeck v. City of Rochester, 76 Hun, 87; Woodruff v. Paddock, 56 Hun, 288; City of Buffalo v. D., L. & W. R. R. Co., 190 N. Y. 84; Beckwith v. Whalen, 65 N. Y. 322.) This is not a case of laying out a street or highway across the tracks of a railroad, but at most involves the construction of a crossing upon a street already laid out, and the railroad commission, or its successor, the public service commission, has no jurisdiction. (People ex rel. Town of Colesville v. D. & H. Co., 177 N. Y. 337; U. S. F. & G. Co. v. U. S., 209 U. S. 306; G. & W. Ry. Co. v. N. Y. C. & H. R. R. R. Co., 163 N. Y. 228.)</p> <p>Delavan avenue cannot be constructed across plaintiff’s tracks except after the statutory proceedings before the railroad commission, or its successor, the public service commission. (L. 1897, ch. 794; L. 1898, ch. 520; People ex rel. City of Niagara Falls v. N. Y. C. & H. R. R. R. Co., 158 N. Y. 410; Vanderbeck v. City of Rochester, 46 Hun, 87; People ex rel. Town of Colesville v. D. & H. Co., 177 N. Y. 337.) The conclusion of law and judgment of the trial court that the city by the proceedings of 1867 acquired a greater right than a mere easement over the lands of the plaintiff were error. (Matter of City of Buffalo, 72 Hun, 422; Matter of N. Y., L. & W. R. Co., 99 N. Y. 12; People ex rel. City of Yonkers v. N. Y. C. & H. R. R. R. Co., 69 Hun, 166; Matter of City of Buffalo, 68 N. Y. 167; Matter of Foltz St., 18 App. Div. 568; City of Buffalo v. Hoffeld, 6 Misc. Rep. 197; Matter of Water Comrs., 96 N. Y. 351; Conklin v. O. C. R. Co., 155 Mass. 155.) Under section 231 of the Highway Law the city lost all rights in the plaintiff’s premises, and. they reverted to the plaintiff free of any highway easement, by reason of abandonment and non user. (City of Buffalo v. Hoffeld, 6 Misc. Rep. 197; Horey v. Village of Haverstraw, 124 N. Y. 273; People ex rel. City of Yonkers v. N. Y. C. & H. R. R. R. Co., 69 Hun, 166; Ludlow v. City of Oswego, 25 Hun, 260.)</p>

The facts, so far as material, are stated in the opinion. The situation in the village of Ossining is not such as is contemplated by section 62 of the Railroad Law. which provides for the elimination of grade crossings. (People ex rel. Bacon v. N. C. R. Co., 164 N. Y. 289; Erie R. R. Co. v. Stewart, 170 N. Y. 172; Village of Bolivar v. P. S. & N. Ry. Co., 88 App. Div. 387; People ex rel.

<p>Trial — direction of verdict against plaintiff — plaintiff’s request to go to jury on issues named at the trial does not constitute a waiver of his right to go to jury on every issue in the case — action on contract for services.</p> <p>A plaintiff in bringing his action thereby asks to go to the jury on any and every issue of fact which may arise upon the complaint and answer, and the specification by counsel of some issues as especially proper to he submitted, when he perceives that the court is about to direct a verdict against him, does not constitute a waiver of his right to go to the jury upon every other issue of fact which is really in the case.</p> <p>Payment of a sum for material to be furnished and services rendered by plaintiff was by the contract therefor made conditional upon the acceptance of the work by a state railroad commission. Plaintiff alleged and the evidence supported the allegation that “ the failure of said Railroad Commission to finally approve of this plant and all the work of the plaintiff is not due to any default, neglect or omission on the part of the said plaintiff, or to any failure of plaintiff to comply with the provisions of said contract, or to any failure on the part of said plaintiff to furnish proper appliances, labor and material in the erection of said plant, but was wholly due to the default, neglect and omission on behalf of the said defendant, as hereinbefore set forth.” Held, that refusal to accept the work for reasons relating to the conduct of the railroad company alone could not stand in the way of plaintiff’s right to payment, hence it was error to direct a verdict for defendant.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered May 10, 1909, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term and granting a new trial.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The trial court nonsuited the plaintiff; there was no motion for a new trial; the appeal to the Appellate Division was from the judgment only; the Appellate Division had no jurisdiction to review the facts; its order of reversal on the law and the facts must be reversed by the Court of Appeals and the judgment of nonsuit be restored. (Collier v. Collins, 172 N. Y. 101; Alden v. Knights of Maccabees, 178 N. Y. 542; Allen v. C. E. Bank, 181 N. Y. 282; Perry v. Vil. of Potsdam, 106 App. Div. 298; Muratore v. Pirkl, 104 App. Div. 134; Gillan v. O’Leary, 124 App. Div. 501.) No question of fact arises on an appeal from a judgment of nonsuit either in the Appellate Division or the Court of Appeals. The question is one of law and is reviewable by the Court of Appeals. (Colt v. S. A. R. R. Co., 49 N. Y. 671; N. F. Ins. Co. v. Campbell Stores, 101 App. Div. 401; Jarvis v. Lynch, 157 N. Y. 447; Pender v. B. H. R. R. Co., 173 N. Y. 522; Riddle v. F. S. S. R. Co., 173 N. Y. 331; S. N. Bank v. Weston, 172 N. Y. 254.) The non-suit was right. The plaintiff had not proved that she had been ousted by defendant from any part of the lands described in the complaint, and had not proved that defendant was or had ever been in possession of those lands. The Appellate Division is clearly wrong in assuming the answer admits possession in defendant of lot 76 or of any land, described in the complaint. (Sheridan v. Jackson, 72 N. Y. 173; Talbot v. Laudheim, 188 N. Y. 424; Butler v. F. T. Co., 186 N. Y. 490; Taylor v. Taylor, 173 N. Y. 270; McKeon v. See, 51 N. Y. 305; Salisbury v. Howe, 87 N. Y. 134; Sterrett v. T. Nat. Bank, 122 N. Y. 662; Caponigri v. Altieri, 165 N. Y. 263.)</p> <p>This being an appeal from an order of judgment of the Appellate Division reversing on the law and the facts, this court will not entertain the appeal, and judgment absolute should be ordered on the stipulation. (Tousey v. Hastings, 194 N. Y. 79; Van Slyck v. Woodruff, 192 N. Y. 547; Allen v. C. E. Bank, 181 N. Y. 278-282; Matter of Mosher, 185 N. Y. 435; Beni v. Smith, 161 N. Y. 120; Snebley v. Conner, 78 N. Y. 218; Livingston v. City of Albany, 161 N. Y. 602; Reich v. Dyer, 180 N. Y. 238; Hirsch v. Jones, 191 N. Y. 195; Matter of Westervelt, 163 N. Y. 209.) An action in ejectment is the proper remedy to determine and settle the boundary line between adjoining owners of real estate, where such boundary line is in dispute, each owner claiming title and possession of the land in question. (Talbot v. Laubheim, 188 N. Y. 421; Leprell v. Kleinschmidt, 112 N. Y. 364; Race v. Stewart, 5 App. Div. 598; Danziger v. Boyd, 120 N. Y. 628; Seneca Nation v. Hugaboom, 132 N. Y. 492; Jones v. Smith, 64 N. Y. 180; Steward v. Patrick, 68 N. Y. 450; Allen v. Welch, 18 Hun, 226; Sherman v. Kane, 86 N. Y. 57; Stanley v. Murty, 134 App. Div. 845.)</p>

The facts, so far as material, are stated in the opinion. The Appellate Division had no jurisdiction to grant the peth tion of the city of New York. (People v. Keenan, 110 App. Div. 537; 185 N. Y. 600; Massey v. Gleaves, 1 Tenn. Ch. 149; Arthur v. Arthur, 38 Kan. 691; Osborne v. United States, 91 U. S. 474; Gregory v. M. Nat.

Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 17, 1910, which modified and affirmed as modified an order of Special Term granting a motion for a peremptory writ of mandamus to compel the reinstatement of the relator in the position of superintendent of public buildings in the borough of Manhattan.

The nature of the action and the facts, so far as material, are stated in the opinion. The record is destitute of any proof to sustain the allegations of the complaint that the engineer, in determining the amounts and quantities of the several kinds of work under the contract, and in determining the questions in relation to said work and the construction thereof, acted either unreasonably, arbitrarily, erroneously or in violation of the rights of the plaintiff.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 2, 1910, which reversed an interlocutory judgment of Special Term construing the will of Mary J. Martin, deceased. The facts, so far as material, and the question certified are stated in the opinion.

<p>Corporations — voluntary sale of independent department of business of stock corporation — must be made under and in compliance with, section 16 of Stock Corporation Law — rights of stockholder who objects to sale.</p> <p>The sale of the “ business, assets and property,” including the good will, of an independent and important department, or branch, of the business of a business corporation, organized under the laws of this slate,for the reasons, among others, that the corporation lacked capital to carry on the department and that “ the sale was a business necessity,” is not a transaction within the ordinary course of business of the corporation. It is valid, only, when made under and in compliance with the provisions of section 16 of the Stock Corporation Law (Cons. Laws, chap. 59), authorizing the voluntary sale of the franchise and property of a corporation with the consent of two-thirds of its stockholders.</p> <p>When such sale is made, a stockholder, who voted against the resolution authorizing the directors to make it, Í3 entitled, under section 17 of the Stock Corporation Law, to an order for the appointment of three persons to appraise- the value of his stock and directing the corporation to pay to him the value thereof as fixed by such appraisers.</p>

<p>Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered October 13, 1909, which affirmed an interlocutory judgment of Special Term sustaining a demurrer to a separate defense set forth in the answer.</p> <p>The following questions were certified : “ 1. Does the complaint herein state a cause of action for the maintenance of a nuisance? 2. Does the complaint herein state a cause of action for negligence. 3. Should the demurrer to that part of the defendant’s answer setting up the three years’ Statute of Limitations be sustained ? ”</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>This action is “to recover damages for personal injury resulting from negligence,” and the demurrer to defendant’s plea of the three years’ Statute of Limitations should be overruled. The complaint does not state a cause of action for the maintenance of a nuisance. (Lange v. Benedict, 73 N. Y. 12; Newton v. Jay, 107 App. Div. 457; Hurst v. McClellan, 102 App. Div. 336; Knowles v. City of New York, 176 N. Y. 430; Burdick v. Chesebrough, 94 App. Div. 532; Rector of St. James Church v. Huntington, 82 Hun, 125; Hollis v. B. H. R. R. Co., 128 App. Div. 821; Matthews v. De Groff, 13 App. Div. 356; Dickinson v. Mayor, etc., 92 N. Y. 584; McConnell v. Bostelmann, 72 Hun, 235; Whalen v. Glocester, 4 Hun, 27.)</p> <p>A statutory duty rested upon the defendant to keep this portion of the street in repair, and for the failure to perform such duty the defendant is liable for personal injury sustained in consequence thereof, irrespective of the question of negligence. (Schuster v. F. S. S., etc., Ry. Co., 192 N. Y. 430; Doyle v. N. Y. & B. H. R. R. Co., 58 App. Div. 588; City of Brooklyn v. Brooklyn City Ry. Co., 47 N. Y. 475; Nellis on Street Railway Accident Law, 223; Robinson v. Chamberlin, 34 N. Y. 389; Dygert v. Schenck, 23 Wend. 447; 16 Am. & Eng. Ency. of Law [1st ed.], 937; Town of Clay v. Hart, 25 Misc. Rep. 110; Clifford v. Dam, 81 N. Y. 52; Lamming v. Galusha, 135 N. Y. 242; Congreve v. Smith, 18 N. Y. 79.)</p>

One Margaret King died in July, 1906, leaving a last will and testament dated the 30th day of March, 1876, which was admitted to probate in the Surrogate’s Court of Orange county on the 17th day of July, 1906. Letters testamentary were thereupon issued to Rufus King who was nominated in the will as executor. In this will the testatrix, after sundry dispositions to next of kin, made the following provision for certain nephews and nieces of her deceased husband: “ Fourthly.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 8, 1910, which reversed an order of Special Term granting a motion for leave to amend a notice of appeal to the Court of Appeals; also an original motion for leave to amend such notice of appeal. The facts, so far as material, and the question certified are stated in the opinion.

<p>(1.) Murder—Evidence—Premeditation and Deliberation.</p> <p>The evidence upon the trial of a defendant, charged with murder in the first degree, reviewed and held, that such evidence is sufficient to warrant the finding that the crime was committed with deliberation and premeditation, and, further, that the facts and circumstances are such as to exclude any hypothesis except that of the defendant’s guilt.</p> <p>(2.) Same.</p> <p>It was not error to receive, upon such trial, the evidence of the men who arrested the defendant as to his statements to them or in their presence, where none of such statements was made as the result of any promise or threats, nor induced by fear, and where it appears that whatever the defendant did say was voluntary and in the course of conversations.</p> <p>(3.) Same—Voluntary Statements oe Defendant.</p> <p>The fact that the prosecuting attorney, in cross-examining the defendant, directed his attention to the testimony of certain witnesses and asked him to state whether it was true or false, did not prejudice the defendant.</p> <p>(4.) Same—Improper Cross Examination by District-Attorney.</p> <p>The district attorney also asked the defendant whether he meant to say that a statement of certain witnesses was a “ lie.’’ This exceeded the proper bounds of examination, and was unnecessary because affecting the atmosphere of the trial; but where the defendant’s answer contained no such characterization, it does not constitute legal error.</p> <p>(5.) Same—Fairness of Trial.</p> <p>The fairness of defendant’s trial in a capital case must be considered by the court.</p>

The nature of the controversy and the facts, so far as material, are stated in the opinion. The assessment is legal. (People ex rel. Scott v. Pitt, 169 N. Y. 521; O'Reilly v. City of Kingston, 114 N. Y. 439; City of Ithaca v. Babcock, 72 App. Div. 260; Holmes v. Carley, 31 N. Y. 289; Matter of Phelps, 110 App. Div. 69; S. B. Ry. Co. v. C. I., etc., Ry. Co., 22 App.

'Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 23, 1908, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial at Special Term.

Appeal by the International Bridge Company and the Grand Trunk Railway of Canada, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 3, 1909, affirming an interlocutory judgment in favor of plaintiffs entered upon a decision of the court on trial at Special Term; also, appeal by the city of Buffalo from the same judgment of the Appellate Division affirming the same Special Term judgment which is…

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 10, 1910, which reversed an interlocutory judgment of Special Term overruling a demurrer to the answer and sustained such demurrer.

<p>Appeal from a judgment entered February 1, 1909, upon an order of the Appellate Division of the Supreme Court in the fourth judicial department, which affirmed an interlocutory judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>Plaintiff’s exhibits are self-serving declarations and are incompetent evidence. (Bank of N. A. v. Delafield, 126 N. Y. 410; Learned v. Tillotson, 97 N. Y. 1; Talcott v. Harris, 93 N. Y. 567; Grant v. Pratt & Lambert, 87 App. Div. 490; Tooley v. Bacon, 70 N. Y. 34; Levin v. Russell, 42 N. Y. 251; Williams v. Sargeant, 46 N. Y. 481; Tozer v. N. Y. C. R. R. Co., 105 N. Y. 659; M. Groh's Sons v. Groh, 177 N. Y. 8; Gearty v. Mayor, 183 N. Y. 233.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The Appellate Division was restricted in its consideration on appeal to the question of law passed upon by the Special Term.

<p>Real property — sale of land at auction — purchaser under terms of sale, which do not give fair notice of building restrictions on land, entitled to reasonable time to investigate — when purchase may be rescinded and action maintained for amount paid at sale and expense of examining title.</p> <p>A description given to a purchaser by the auctioneer before a sale of real estate at auction gave notice of restrictions against nuisances, but none as to restrictions upon the right to build. The building restrictions set out in the terms of sale, signed by the purchaser and which lie was informed, immediately after the sale, were “all right,” were not fairly or sufficiently described. Held, that a sale of land at auction is not governed by the strict rules applicable to formal contracts made with deliberation after ample opportunity to investigate and inquire; that the terms of sale did not give fair notice of the restrictions afterward put in the deed tendered to the plaintiff; under the circumstances surrounding the sale and the assurance given after the sale, the purchaser should have had a reasonable time to investigate, and, upon discovery of the actual facts, he had the right to rescind the transaction and sue for the recovery of the amount paid down, together with the reasonable expenses incurred in examining the title.</p>

The facts, so far as material, are stated in the opinion. The unconsummated attempt to commit extortion by means of a verbal threat is a misdemeanor as defined by and punishable under section 857 of the Penal Law. (President, etc., v. Kaldenberg, 165 N. Y. 1; Mayor v. M. Ry.

The nature of the action and the facts, so far as material, are stated in the opinion. The verdict in this action cannot be sustained upon the ground that the appellants, or either of them, acted contrary to the will or wishes of the committee of Sutliff. (Burnett v. Bookstaver, 10 Hun, 481; Kolpke v. Bradley, 3 App. Div. 391; Bd. of Excise v. Sacrider, 35 N. Y. 154; Birdsall v. Clark, 73 N. Y. 73; Providence Retreat v. City of Buffalo, 29 App.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered February 4, 1909, which reversed an interlocutory judgment of Special Term overruling demurrers to counterclaims contained in the answer. The nature of the action, the facts, so far as material, and the questions certified are stated in the opinion. The complaint does not state facts sufficient to constitute a cause of action.

The nature of the action and the facts, so far as material, are stated in tlie opinion. The notes in suit were delivered upon a condition precedent which has not been performed. (Smith v. Mussetter, 58 Minn. 159; Graham v. Remmel, 76 Ark. 140; Mendenhall v. Ulrich, 99 Minn. 100; Andrews & Co. v. Hess, 20 App.

<p>Appeal from a judgment of the Supreme Court, rendered June 29, 1909, at a Trial Term for the county of Dutchess, upon a verdict convicting the defendant of the crime of murder in the first degree.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The judge virtually charged the jury that their verdict must be murder in the first degree, or not guilty by reason of insanity. This was error. (People v. Young, 96 App. Div. 38; People v. Granger, 187 N. Y. 72; People v. Sullivan, 173 N. Y. 123.) It was error in the court, after the jury had retired and returned for instructions, to furnish them with the concluding sentences of his charge in writing. (Code Cr. Pro. §§ 425, 426; Schappner v. S. A. R. R. Co., 55 Barb. 503; Mitchell v. Carter, 14 Hun, 450; Manor v. People, 43 N. Y. 1; Cancemi v. People, 18 N. Y. 128.) The hypothetical question answered by the three physicians on the part of the People as to the sanity of the defendant was incompetent in that they were permitted to take into account in answering the question the oral and physical examination of deefndant made previous to the trial and not in evidence or embraced in the question. (Cobb v. U. E. etc., Co., 191 N. Y. 481; Link v. Sheldon, 136 N. Y. 1; People v. Hawkins, 109 N. Y. 317; People v. Sleight, 148 N. Y. 517; People v. Nino, 149, N. Y. 317; People v. Hill, 195 N. Y. 16.)</p> <p>The charge of the court that the jury could find the defendant guilty of murder in the second degree was favorable to the defendant. (People v. Giblin, 115 N. Y. 196.) The giving to the jury of the concluding paragraph of the judge’s charge at their request, which was not objected to by defendant, was not error. (People v. Priori, 164 N. Y. 459; People v. Dolan, 186 N. Y. 4; People v. Gallagher, 75 App. Div. 39; People v. Johnson, 110 N. Y. 134; People v. Carnal, 2 N. Y. Cr. Rep. 256; People v. Draper, 28 Hun, 1; People v. Flock, 8 N. Y. Cr. Rep. 43.) The hypothetical question propounded to the alienists was proper. (People v. Truck, 170 N. Y. 203.) The admission of the statement of the defendant as to other crimes was competent upon the question of defendant’s' sanity. (People v. Pekarz, 185 N. Y. 470.)</p>

<p>Murder—Facts Examined and Held Sufficient to Sustain Verdict of Conviction—Evidence of Motive and Intent—Refusal to Grant a New Trial Approved.</p> <p>The rule that a person intends that which is the natural and necessary consequence of his act accords with sound reason, and is applicable to capital cases.</p> <p>The facts proven upon the trial of a defendant indicted for murder examined, and helé, that they are evidence of both motive and intent; that the verdict convicting the defendant was neither against the weight of evidence nor against law, and that there is nothing to he found in the evidence or the procedure which would justify granting a new trial.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. Delirious sickness rendering it impossible for an insured to attend to a condition of the policy will not excuse default. (Wheeler v. C. M. L. Ins. Co., 82 N. Y. 543; Klein v. Ins. Co., 104 U. S. 88; Heywood v. M. M. A. Assn., 85 Me. 289; Quinlan v. P. W. Ins. Co., 133 N. Y. 356; Perry v. Caledonia Ins. Co., 103 App. Div. 113; Roehner v. K. L. Ins.

The facts, so far as material, are stated in the opinion. Lawful computation and assessment of tax on capital stock increased within the year preceding that for which the tax is imposed should have regard to the portion of that year during which the increase stock was outstanding and be based upon its average amount for the period of that year. (People ex rel. N. E. L. Co. v. Roberts, 25 App. Div. 16; People ex rel. B. R. T. Co. v. Morgan, 57 App.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered October 4, 1909, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term without a jury and granting a new trial.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The plain reading of section 131 of the Tax Law makes the comptroller’s deed conclusive evidence of title after the lapse of two years from the date thereof, and the provisions of that section constitute a short statute of limitations. (Jackson v. Rowe, 106 App. Div. 65; 191 N. Y. 512; People ex rel. McGuiness v. Lewis, 127 App. Div. 107; Adirondack League Club v. Keyes, 122 App. Div. 178; Wallace v. McEchron, 176 N. Y. 424; People v. Turner, 145 N. Y. 451; Meigs v. Roberts, 162 N. Y. 371; Sanders v. Downes, 141 N. Y. 422; C. W. P. Co. v. Voight & Sons Co., 212 U. S. 227; Dudley v. Mayhew, 3 N. Y. 14; Matter of N. Y., L. E. & W. R. R. Co., 110 N. Y. 374; Eckes v. Stetler, 98 App. Div. 76.) The comptroller’s deed is valid and in full force and effect, and defendant’s title and rights under it cannot be divested, nor the deed set aside by an action in ejectment. (Meigs v. Roberts, 162 N. Y. 371; People ex rel. McGuiness v. Lewis, 127 App. Div. 107; Wallace v. McEchron, 176 N. Y. 424.) The statute considered as a statute of limitation is valid. (People v. Turner, 117 N. Y. 227; S. T. & T. Co. v. Roberts, 125 App. Div. 333.)</p> <p>The comptroller’s deed passed no title that the plaintiff in ejectment may not question. (Ellwood v. Northrup, 106 N. Y. 172; Zink v. McManus, 49 Hun, 583; 121 N. Y. 259.) Under a proper construction of the statute the comptroller’s deed does not conclude the plaintiff. (Joslyn v. Rockwell, 128 N. Y. 334; Ensign v. Barse, 107 N. Y. 329; People v. Turner, 145 N. Y. 451; Meigs v. Roberts, 162 N. Y. 371; Jackson v. Rowe, 106 App. Div. 65; Wallace v. McEchron, 176 N. Y. 424; People v. Ladew, 189 N. Y. 355.) The statute, considered as a statute of limitations, begins to run only from the time possession is acquired under the comptroller’s deed. (Berridge v. Schults, 32 Misc. Rep. 444; Cotten v. Dube, 32 Misc. Rep. 632; Ward v. Ward, 23 Hun, 431; Satterlee v. Kobbe, 173 N. Y. 91; Plimpton v. Town of Somerset, 33 Vt. 283; Francis v. Baker, 11 R. I. 103; N. Y. L. I. & T. Co. v. Meyer, 6 N. Y. 656; Boyd v. Boyd, 12 Misc. Rep. 119; Bensen v. M. R. Co., 14 App. Div. 442; Warren v. People, 3 Park. 544; Wood v. City of Brooklyn, 14 Barb. 425.)</p>

Fearing, deceased, upon Amey R. Sheldon, deceased. The facts, so far as material, are stated in the opinion. The trust property, over which Amey R. Sheldon exercised the power of appointment, belonged to the estate of Daniel B. Fearing, a resident decedent. (Hull Case, 111 App. Div. 322; 186 N. Y. 586; Matter of Kissel, 65 Misc. Rep. 443; Matter of Pell, 171 N. Y. 48; Matter of Delano, 176 N. Y. 486; Matter of Haggerty, 128 App.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered April 21, 1909, affirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term, a jury having been waived.</p> <p>This action was brought upon a written instrument, dated January 31st, 1901, signed and sealed by the defendant and five others, and running to the First National Bank of Waterloo. After appropriate recitals showing its consideration and purpose, and the relation of the signers as stockholders “ or otherwise” to the Waterloo Organ Company, it proceeds as follows: “ We, the undersigned, do hereby jointly and severally for ourselves, and our, and each of our heirs, executors and administrators, guarantee and warrant unto the said bank, its successors and assigns, the prompt payment at maturity of each and all the notes, checks, drafts, bills of exchange and other obligations in writing of every name and kind, made, signed, drawn, accepted or endorsed by the said Waterloo Organ Company, which the said bank now has, or which it may hereafter have, hold, purchase or obtain within one year from date hereof, but our liabilities hereunder shall not at any time exceed the sum of $15,000’and interest thereon.</p> <p>“ Amd in case default is made in the payment at maturity of any of the above-mentioned obligations, or in the payment of any lawful claim or demand held by said bank against said company, we do hereby jointly and severally covenant, promise and agree to pay the same to the said bank, its successors or assigns upon dema/nd.</p> <p>“ This instrument is intended to be a full, complete and perfect security and indemnity to the said bank to the extent and for the time above stated, for any indebtedness or liability of any kind owing by the said company to it from time to time and to bo valid and continuous without other or further notice to us or to any of us.”</p> <p>The complaint set forth said instrument and alleged that in July, 1901, the plaintiff became the owner of fifteen bonds for $500 each, duly issued on the first of December, 1891, by the Waterloo Organ Company and all payable to bearer on the first of December, 1901. It was further alleged that although said bonds had become due, no part of the principal thereof had been paid, and no part of the interest since December first, 1901. No demand of payment was alleged or proved.</p> <p>The answer, after a general denial in part, pleaded payment and that said instrument was extinguished by another of like tenor and effect given in renewal thereof in January, 1902, and by the recovery of a judgment thereon for the full limit of $15,000 and interest, and the payment of said judgment by the defendant.</p> <p>The trial court, after finding the facts substantially as alleged in the complaint, held that the fifteen corporate bonds were obligations of the organ company referred to and that they were covered by the instrument in question. Judgment was directed in favor of the plaintiff for the sum of $7,500 and interest thereon from December 1st, 1901. The defendant appealed to the Appellate Division, where the judgment was affirmed, the presiding justice dissenting, and thereupon a further appeal was taken to this court.</p> <p>The motion by defendant for a nonsuit should have been granted. There is no allegation in the complaint that any demand was made upon this defendant to pay the obligation upon which the organ company had made default, nor is there any evidence of such a demand. (1 Ency. L. & P. 694; Bunn v. Lett, 65 Hun, 43; Packard v. L. I. R. R. Co., 52 Misc. Rep. 98; Heinemann v. Brasch, 53 Misc. Rep. 552; Wangle v. Swift, 90 N. Y. 38.)</p> <p>The claim made by the defendant that a formal demand should have been made of the defendant or of the Waterloo Organ Company and notice thereof given to the defendant before bringing the action is not tenable. (Cass v. Sherman, 61 Hun, 472; Cordier v. Thompson, 8 Daly, 172; Brown v. Curtis, 2 N. Y. 225; Newcomb v. Hale, 90 N. Y. 327; Baylis’ Code Pleading [2d ed.], 192; F. Nat. Bank v. Bacon, 113 App. Div. 612; 189 N. Y. 533.)</p>

The facts, so far as material, are stated in the opinion. The court erred in its charge to the jury as to the weight which should he given to the evidence of good character. (Remsen v. People, 43 N. Y. 6; People v. Bonier, 179 N. Y. 315; People v. Weiss, 129 App. Div. 671; People v. Friedland, 2 App.

<p>Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 11, 1910, which affirmed a determination of the Appellate Term reversing an interlocutory judgment of the Municipal Court of the city of New York overruling a demurrer to the complaint and sustaining such demurrer.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>Under the charter of 1901 the board of education has exclusive control of all matters of public education in the city of New York, including the power to fix the salaries of all its employees. (L. 1901, ch. 466, §§ 1055, 1057, 1058, 1060-1069, 1071, 1087, 1092; Gunnison v. Bd. of Education, 176 N. Y. 11; F. & D. Co. v. City of New York, 108 App. Div. 263; U. E. L. & P. Co. v. Bd. of Education, N. Y. L. J., May 18, 1909.) Section 56 of the charter has application only to officers and employees of the city of New York. (Whitmore v. Mayor, etc., 67 N. Y. 21; Taylor v. Mayor, etc., 67 N. Y. 88; People ex rel. Allen v. Metz, 61 Misc. Rep. 363.)</p> <p>The board of education had no power to increase the plaintiff’s salary and for that reason the complaint was demurrable. (L. 1901, ch. 466, § 56; Munch v. City of New York, 47 Misc. Rep. 128; O’Connor v. City of New York, 48 Misc. Rep. 407; Haswell v. Mayor, etc., 81 N. Y. 255; Parr v. Vil. of Greenbush, 72 N. Y. 463; Smith v. City of Newburgh, 77 N. Y. 130; Keane v. City of New York, 88 App. Div. 542; Matter of Niland, 193 N. Y. 180; McDonald v. Mayor, etc., 68 N. Y. 23; Kramrath v. City of Albany, 127 N. Y. 575; People ex rel. Lyon Co. v. McDonough, 173 N. Y. 181.)</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 27, 1909, modifying and affirming as modified a judgment of Special Term in an action to construe the will of Hovhannes S. Tavshanjian, deceased.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The language of the will quoted, taken together with the undisputed facts, is a sufficient mention of the after-born children, Arpinee and Ardemis, to prevent the recovery by them under the provision of the Revised Statutes above quoted. (Matter of Morgenstein, 9 Misc. Rep. 199; Wormser v. Croce, 120 App. Div. 287; Minot v. Minot, 17 App. Div. 521.) The words of the statute, “any way mentioned,” should be construed to cover any form of reference that showed the testator in making his codicil had in mind the possibility of after-born children. (Toerge v. Toerge, 9 App. Div. 194; Stachelberg v. Stachelberg, 124 App. Div. 232; 192 N. Y. 576.)</p> <p>The statutes relating to cases of implied revocation of a will are declaratory of the rule of presumptive law with reference to the intent of the testator, and are not derogatory of the rule that the intent of the testator shall prevail. (Brush v. Wilkins, 4 Johns. Ch. 506; Sutton v. Hancock, 115 Ga. 857; Swan v. Hammond, 138 Mass. 45; Matter of Garaud, 35 Cal. 336; Matter of Stevens, 83 Cal. 322; Bradley v. Bradley, 24 Mo. 311; Pounds v. Dale, 48 Mo. 270.) The expression “ in any way mentioned in such will ” should be construed to mean “ in such way mentioned therein as to show an intention not to make such provision.” (Stachelberg v. Stachelberg, 124 App. Div. 232; 192 N. Y. 576; Minot v. Minot, 17 App. Div. 521; Wormser v. Croce, 120 App. Div. 287; Boman v. Boman, 47 Fed. Rep. 849; Matter of Newlin, 58 Atl. Rep. 846; Gage v. Gage, 29 N. H. 533; Thomason v. Julien, 133 N. C. 309; Porter v. Porter, 120 Ky. 302; Schouler on Wills [2d ed.], § 479.)</p> <p>The infant children of testator are not “mentioned” in the will within the meaning of the statute. (Stachelberg v. Stachelberg, 192 N. Y. 576; Wormser v. Croce, 120 App. Div. 287; Minot v. Minot, 17 App. Div. 521.) The infant defendants, Arpinee and Ardemis Tavshanjian, are entitled to two-thirds of testator’s personal estate and to the whole of his real estate, subject to the dower rights of the widow, if any. (Mitchell v. Blain, 5 Paige, 588; Sanford v. Sanford, 5 Lans. 486; 61 Barb. 293; Bunce v. Bunce, 27 Abb. [N. C.] 61.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The verdict was contrary to the law and the evidence. (Baxter v. A. & S. E. R. Co., 190 N. Y. 439.) The striking out of evidence by the trial justice was fatally erroneous. (Miller v. Montgomery, 78 N. Y. 282; Matter of Lasar, 131 N. Y. 624; Plum v. M. S. R. Co., 91 App.

The facts, so far as material, are stated in the opinion. The certificates of the courts of Connecticut received in evidence on behalf of the People were competent. (Code Civ. Pro. § 921.)

The nature of the action and the facts, so far as material, are stated in the opinion. The case should have been submitted to the jury. (Hoffman v. Foot, 172 N. Y. 350.) The defendant liad the right to annex conditions to the delivery of the note. (Seymour v. Cowing, 1 Keyes, 532; Julliard v. Chaffee, 92 N. Y. 535; Eastman v. Shaw, 65 N. Y. 522.) The answer of the defendant as qualified by the admissions of his counsel in his opening presents no defense or questions of fact.

The nature of the action and the facts, so far as material, are stated in the opinion. The defendant’s exceptions to the admission of expert testimony were well taken, and the improper admission of the evidence objected to was reversible error. (Raynor v. M. S. R. Co., 106 App. Div. 449; Mackey v. I. S. R. Co., 115 App. Div. 467; Newton v. N. Y., N. H. & H. R. R. Co., 106 App. Div. 415; Grace v. Fassett, 67 App. Div. 443; Boland v. N. Y. C. R. Co., 48 Misc.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered March 8, 1910, affirming a judgment in favor of plaintiffs entered upon an award of the Court of Claims.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The Oswego river is a public navigable river and the question of the title to its bed is to be determined by the rules of law applicable to public navigable waters. (People v. Vanderbilt, 26 N. Y. 287; Langdon v. Mayor, etc., 93 N. Y. 129; R. I. Co. v. Shultz, 116 N. Y. 382; People v. Tibbetts, 19 N. Y. 523; People v. Canal Appraisers, 33 N. Y. 461; Sage v. Mayor, etc., 154 N. Y. 61; Seneca Nation v. Christie, 126 N. Y. 122; Pierce v. Proprietors, 10 R. I. 227; State v. Buchanan, 5 H. & J. [Md.] 317; Barry v. Vil. of Port Jervis, 64 App. Div. 268.) The interruption of water navigation by the rapids at Fulton does not affect the navigable character of the Oswego river. (Canal Comrs. v. People, 5 Wend. 423; Canal Appraisers v. People, 17 Wend. 571; Matter of State Reservation, 37 Hun, 537; People v. Page, 39 App. Div. 110; The Montello, 20 Wall. 30; Morgan v. King, 35 N. Y. 454; Smith v. City of Rochester, 92 N. Y. 463; C. B. Co. v. Paige, 83 N. Y. 178.) The state did not by the patent granted to Conrad Stene alienate any part of the bed of the Oswego river for the reason that the patent did not by express terms include land under the waters of the Oswego river. (East Haven v. Hemingway, 7 Conn. 186; Town of Middletown v. Sage, 8 Conn. 221; Church v. Meeker, 34 Conn. 421; Commonwealth v. City of Roxbury, 75 Mass. 451; Canal Comrs. v. People, 5 Wend. 423; State v. Pacific Guano Co., 22 S. C. 50; Rosborough v. Picton, 12 Tex. Civ. App. 113, 116; Sage v. Mayor, etc., 154 N. Y. 61; Matter of Mayor of New York, 182 N. Y. 361, 365; Royal Fishery of the Banne, Davies’ Rep. 149; Attorney-General v. Farmen, 2 Levinz, 171.) The title of the state to lands under public navigable waters, whether fresh or salt, is engrafted- with a trust for the benefit of the public and is inalienable except for certain public uses. (I. C. R. R. Co. v. Illinois, 146 U. S. 387; Martin v. Waddell, 16 Pet. 367; Coxe v. State of N. Y., 144 N. Y. 396; Mayor v. Hart, 95 N. Y. 443; Town of Brookhaven v. Smith, 188 N. Y. 74; Shively v. Bowlby, 152 U. S. 1; Saunders v. N. Y. C. & H. R. R. R. Co., 144 N. Y. 75; Bristow v. Cormican, L. R. [3 App. Cas.] 641.) If there is any ambiguity in the language of the Stene patent, the contention most favorable to the state must be adopted. (Trustees of East Hampton v. Vail, 151 N. Y. 463; De Lancey v. Pipegras, 138 N. Y. 26; People v. Broadway R. R. Co., 126 N. Y. 29, 36, 37; Dermott v. State, 99 N. Y. 101, 109; Morris v. U. S., 174 U. S. 196; Gere v. McChesney, 84 App. Div. 39; L. B. P. O. Co. v. Briggs, 198 N. Y. 287.) Assuming for the purpose of argument that the Oswego river is not a public navigable river within the foregoing rules relating to the title to the bed, the state, nevertheless, is entitled to use the bed and waters of the river for the improvement of navigation, without compensation, by virtue of its paramount right to control navigation. (People v. Platt, 17 Johns. 196; Morgan v. King, 35 N. Y. 454; Matter of Comrs. of State Reservation, 37 Hun, 537; Smith v. City of Rochester, 92 N. Y. 463; Shively v. Bowlby, 152 U. S. 1; Slingerland v. I. C. Co., 169 N. Y. 60; L. B. P. O. Co. v. Briggs, 198 N. Y. 287; W. C. R. R. Co. v. Ghicago, 201 U. S. 506, 520; Gibson v. United States, 166 U. S. 269; C., B. & Q. Ry. Co. v. Drainage Comrs., 200 U. S. 561; Scranton v. Wheeler, 179 U. S. 141; Union Bridge Co. v. United States, 204 U. S. 364.) Assuming for the purpose of argument that the bed of the Oswego river was alienated by the Stene patent, it was reacquired by the state as canal lands at the time of the construction of the Oswego canal in 1826, and at that time the state acquired all the water power of the Oswego river at the point at which claimants’ property is located. (Rexford v. Knight, 15 Barb. 627; 11 N. Y. 308; Higgins v. Reynolds, 31 N. Y. 151; Carpenter v. City of Cohoes, 81 N. Y. 21; Matter of State Reservation, 16 Abb. [N. C.] 159; Alsheimer v. Boon, 31 Misc. Rep. 333; C. I. Co. v. Mayor, etc., 166 N. Y. 92; Gaw v. State, 127 N. Y. 190; Marks v. State, 97 N. Y. 572.) No interest in or title to canal lands or waters can be acquired by prescription or adverse possession. (Burbank v. Fay, 65 N. Y. 57; W. W. Mills v. Shanahan, 128 N. Y. 345.)</p> <p>The Oswego river is non-navigable in law, and the Court of Claims committed no error in construing the Stene patent of 1793 in accordance with the established common-law doctrine of this state for construing deeds of lands bordering on streams non-navigable in law. (Morgan v. King, 35 N. Y. 457; Varig v. Smith, 5 Paige, 137; 9 Paige, 547; Van Buren v. Baker, 12 N. Y. S. R. 209; Matter of State Reservation, 37 Hun, 546; Smith v. Bartlett, 180 N. Y. 360; Hooker v. Cumming, 20 Johns. 99; People v. Platt, 17 Johns. 210; Comrs. v. Kempshall, 26 Wend. 413; Ex parte Jennings, 6 Cow. 518; Starr v. Child, 20 Wend. 149.) The patent from the state to Conrad Stene, constituting the first deed in the chain of title from the state to Hubbard and Falley was executed and delivered by the state for a valuable consideration and not as a gratuity, and is, therefore, to be construed in accordance with the rules governing like business transactions between private persons, and is not to be construed strictly in favor of the state. (Langdon v. Mayor, etc., 93 N. Y. 129; Mayor, etc., of N. Y. v. Starin, 106 N. Y. 19; Mayor, etc., of N. Y. v. M. R. Co., 143 N. Y. 1; Varick v. Smith, 9 Paige, 547; Van Buren v. Baker, 12 N. Y. S. R. 211; Gere v. McChesney, 84 App. Div. 40; L. B. P. O. Co. v. Briggs, 198 N. Y. 287.) A deed by a private person of lands bordering on an interior fresh-water non-tidal stream forming no part of the state boundary and non-navigable in law is presumed to convey the fee of the land to the center of the stream, and “where there is ambiguity with reference to the description or to the commencing point or where there is doubt with reference to the intent of the grantor the presumption that the fee was intended to pass will prevail.” (Van Winkle v. Van Winkle, 184 N. Y. 193; Mott v. Mott, 68 N. Y. 246; Wilcox v. Bread, 92 Hun, 9.) The presumption of conveyance to the center of a non-navigable stream is stronger than the presumption of conveyance to the center of a highway. (Gouverneur v. Nat. Ice Co., 134 N. Y. 355; Luce v. Carley, 24 Wend. 451; Van Winkle v. Van Winkle, 184 N. Y. 203; Sizer v. Devereux, 16 Barb. 166; Herring v. Fisher, 1 Sandf. 344; Pell v. Pell, 65 App. Div. 388; Varick v. Smith, 5 Paige, 137; Van Buren v. Baker, 12 N. Y. S. R. 209; Seneca Nation v. Knight, 23 N. Y. 498; H. R. Tel. Co. v. Forrestal, 56 Misc. Rep. 133.) The courts below properly held that by the transactions between the state and Hubbard and Falley, during the years 1825, 1826 and 1827, in connection with the construction of state dam No. 1 and the old Oswego canal, the state acquired the right to maintain and operate the dam, canal and connections, and to divert from the pool above the dam so much water, and only so much water, as from time to time should be necessary to operate the Oswego canal; and that the riparian rights of Hubbard and Falley, on the completion of such transactions, in 1828, included their right to draw from the dam, from time to time, under proper regulations and restrictions, all of the waters of the easterly half of the river which the state should not need to divert for the navigation of the Oswego canal. (Varick v. Smith, 9 Paige, 559; 5 Paige, 146; Wright v. Shanahan, 61 Hun, 264; 149 N. Y. 495; People v. Common Council, 128 App. Div. 49; Bell Telephone Co. v. Parker, 187 N. Y. 305.) The public highway easement for purposes of navigation and commerce, to which all rivers navigable in fact are subject, does not embrace the diversion into artificial channels of the waters of such streams. Such diversion may be effected only through the exercise of the right of eminent domain, with full compensation to the owners of the riparian rights damaged thereby. In streams not navigable in fact, there is no public highway easement, and they cannot be made navigable in fact without the consent of the riparian owners except through the exercise of the right of eminent domain. (Hayden v. State, 132 N. Y. 533; Waller v. State, 144 N. Y. 597; L. P. Co. v. State, 15 App. Div. 169; Comrs. v. Kempshall, 26 Wend. 404; People ex rel. Loomis v. Canal Appraisers, 33 N. Y. 461; Canal Comrs. v. People, 5 Wend. 423; Ex parte Jennings, 6 Cow. 518; Smith v. City of Rochester, 92 N. Y. 485; Sweet v. City of Syracuse, 129 N. Y. 336.) The claimants have acquired through prescription and adverse possession, arising from long-continued user, title to the lands under water adjacent to their uplands and riparian rights, including the right to the use of all waters not actually used by the state for the old Oswego canal. (Matter of Comrs. of Niagara Reservation, 37 Hun, 537; Comrs. v. Kempshall, 26 Wend. 404; Timpson v. Mayor, etc., 5 App. Div. 429; Belknap v. Trimble, 3 Paige, 605; People v. Mould, 37 App. Div. 35; Hammerschlag v. Duryea, 58 App. Div. 288; Trustees of Brookhaven v. Strong, 60 N. Y. 56; Iselin v. Vil. of Cold Spring, 120 App. Div. 577; Sherman v. Kane, 86 N. Y. 72; Katz v. Kaiser, 154 N. Y. 298; Bell v. Hayes, 60 App. Div. 386; French v. Carhart, 1 N. Y. 102.)</p>

The facts, so far as material, are stated in the opinion. The Public Service Commissions Law did not authorize the exercise of any functions over railroads which were already vested in the local board of health. (McCulloch v. State, 4 Wheat. 316; People v. Acton, 48 Barb. 524; People ex rel. Wood v. Draper, 15 N. Y. 532; People v. Raymond, 37 N. Y. 428; People ex rel.

<p>Motion to dismiss the appeal of the defendants from so much of an order of the Appellate Division of the Supreme Court in the first judicial department, entered October 28, 1910, as dismissed their appeal from an order of the Court of General Sessions, entered on the 23d day of August, 1909, which directed that the attorney-general submit to the grand jury of the county of ¡New York a violation of subdivision 12 of section 41 of the Penal Code alleged to have been committed by the defendants.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>In sustaining the demurrer to the first indictment, the judgment became a bar to another prosecution, as no direction was given therein by the court sustaining the demurrer for leave to resubmit the case to the same or the next grand jury. (Code Crim. Pro. § 327; People v. Clements, 5 N. Y. Cr. Rep. 297; 22 Cyc. of Law & Pro. 432; People v. Krivitsky, 60 App. Div. 311; 168 N. Y. 187; People v. Martin, 77 App. Div. 406.) The appellants’ appeal to the Court of Appeals is a matter of right. (People v. Priori, 163 N. Y. 99; People v. Conepi, 181 N. Y. 402; Code Crim. Pro. § 519; People v. Helmer, 154 N. Y. 613; People ex rel. Bresslin v. Lawrence, 107 N. Y. 609; People v. Drayton, 168 N. Y. 10.)</p> <p>The order directing resubmission was made in the proper and lawful exercise of the power and discretion of the Court of General Sessions; resubmission, made pursuant to its mandate, and the indictments thus found were and are valid. (Code Crim. Pro. § 327; People v. Martin, 77 App. Div. 396; People v. Rosenthal, 197 N. Y. 394, 401; People v. Clements, 5 N. Y. Cr. Rep. 296.)</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 23, 1910, which affirmed an order of Special Term denying a motion for a peremptory writ of mandamus to compel the defendant, as a surrogate of the county of New York, to entertain a proceeding for an accounting of the acts of the petitioner as trustee and -to issue a citation accordingly.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The surrogate has jurisdiction to entertain the proceedings by a substituted trustee appointed by the Supreme Court on an accounting instituted by such trustee. (L. 1850, ch. 272; L. 1866, ch. 115; L. 1867, ch. 782; L. 1870, ch. 539; L. 1871, ch. 482; L. 1880, ch. 178; Code Civ. Pro. §§ 2802, 2818; Royce v. Adams, 123 N. Y. 402; Matter of Delaplaine, 45 Hun, 225; Matter of Bartels, N. Y. L. J., April 29, 1908; Matter of Wuerz, N. Y. L. J., Jan. 4, 1906; Matter of Pitcher, 4 N. Y. Law Bull. 32; Matter of Robertson, N. Y. L. J., Dec. 17, 1909; Wager v. Wager, 89 N. Y. 161; Anderson v. Anderson, 112 N. Y. 104; Matter of Smith, 120 App. Div. 199.) Mandamus is the only remedy for reviewing the action of the surrogate. The order which the surrogate entered denying the application of the substituted trustee for a citation cannot be appealed from; such order so entered was ex f arte, and there can be no respondent before the court. (Matter of Johnson, 27 Hun, 538; People ex rel. Schleher v. Common Council, 30 Hun, 636; Matter of Nottingham, 88 Hun, 443; Hays v. C. G. Co., 143 N. Y. 641; Matter of Kelsey v. Church, 112 App. Div. 408; Aldinger v. Pugh, 57 Hun, 181; 132 N. Y. 403; Code Civ. Pro. § 2070.)</p> <p>The Code of Civil Procedure permits any trustee appointed by any competent authority to execute any trust created by any last will and testament to render and finally settle his accounts before the surrogate. (Code Civ. Pro. § 2802.) The petitioner’s appointment by the Supreme Court was, as his appointment by the surrogate would have been, a “ designation by a competent authority to execute a trust created by a will,” and he became by virtue thereof a “testamentary trustee ” (Code Civ. Pro. § 2472, subd. 6), entitled to every •right and remedy and with all of the duties incident to that fact. By such an appointment the Supreme Court did not “take possession” of the estate of the decedent, and in no just sense did the testamentary trustee become its mere agent. The jurisdiction of the Supreme Court over him was ample and complete, as it is over every trustee, but this jurisdiction did not extinguish the jurisdiction granted by statute to the surrogate. (Post v. Ingraham, 122 App. Div. 738; Matter of Smith, 120 App. Div. 199; C. Cent. Nat. Bank v. Toplitz, 113 App. Div. 73; 188 N. Y. 634; Borrowe v. Corbin, 31 App. Div. 172; 165 N. Y. 634.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The deceased was a trespasser, or, at best, a bare licensee upon defendant’s pole, and the defendant owed him no duty to keep the wires at the top of the pole insulated or the transformer in perfect condition. (Freeman v. B. H. R. R. Co., 54 App. Div. 596; Downes v. Elmira Bridge Co., 179 N. Y. 136; Larmore v. C. P. Iron Co., 101 N. Y. 391; Nicholson v. Erie Ry.

The facts, so far as material, are stated in the opinion. The right to recover in courts of this state against residents as stockholders in foreign corporations is a limited one. (Marshall v. Sherman, 148 N. Y. 9; Lowry v. Inman, 46 N. Y. 119; Christensen v. Eno, 106 N. Y. 97; C. R. Co. v. Kent, 87 Hun, 329; Wigton v. Kenny, 51 App. Div. 215; Stoddard v. Lum, 32 App.

<p>Negligence — when railroad employee, whose negligence caused the death of another employee, not vice-principal of the railroad company, within the meaning of section 42a of the Railroad Law.</p> <p>The conductor of a train, used for conveying slag from a blast furnace to a dump, fell while attempting to couple an empty car to the end of the train, and was run over by the wheels of the rear car, receiving injuries from which he died. The crew of the train consisted of four persons, an engineer, a fireman, the conductor and a switchman, or helper. The engineer and fireman could not see the decedent, as the train backed slowly toward him, and the switchman was giving signals with his hands to the engineer so that the latter could control the train. The switchman testified that he gave the signal to stop, when he saw decedent was in danger, and that when the engineer failed to obey, he called out to stop. The train was then stopped, but not until the wheels of the rear car had run upon the body of the decedent. The engineer testified that the switchman gave no signals rvith his hands prior to calling out to stop and that he then stopped immediately. Each of these two witnesses, the only persons who had personal knowledge of the accident, testified in substance that the accident occurred by reason of the negligence of the other. Held, upon the authority of Hallock v. New York, Ontario & West. Ry. Co. (197 N. Y. 450), that it was erroneous for the trial court to charge that, under the statute (section 42a of the Railroad Law), the switchman was a vice principal of the railroad company.</p>

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 14, 1909, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term. The nature of the action and the facts, so far as material, are stated in the opinion. Whether or not defendant was negligent in not keeping the wires properly insulated was a question for the jury. (Horing v. H. R. Tel.

The facts, so far as material, are stated in the opinion. The legislature when it defined materialman in this law intended to add to the definition and did add by implication the words “ under a contract with the contractor,” as distinguished from the contractor whose agreement is with the owner. In this case the owner acted as contractor, so that the three lienors stand in the same position with respect to the nature of their liens.

This action was brought under section 1638 of the Code of Civil Procedure to determine the title to real property situated in the city of Niagara Falls. The complaint charged that the plaintiff was in possession of the property in suit, as owner in fee, under a deed from his predecessor in title, and that the defendant wrongfully claimed to be the owner thereof under a certain tax deed.

<p>Appeal 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 plaintiff and defendants respondents entered upon the report of a referee in an action to foreclose a mechanic’s lien.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 14, 1910, which annulled, on certiorari, the proceedings of the defendants in designating a newspaper to publish the Session Laws for the year 1910.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 12, 1910, which reversed an order of Special Term granting a motion for a peremptory writ of mandamus to compel the defendants to reclassify the position of stenographer in the department of law in the city of Buffalo by placing it in the exempt class.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 15, 1910, which dismissed a writ of certiorari and confirmed the determination of the defendant in assessing a franchise tax against the relator for the year ending June 30, 1909.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered October 11, 1910, which affirmed an order of Special Term confirming a report of commissioners of estimate and assessment.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered June 16, 1909, affirming a final judgment dismissing the complaint entered upon a prior order of said Appellate Division which reversed an interlocutory judgment of Special Term overruling a demurrer to the complaint and sustained such demurrer in an action to recover for personal injuries alleged to have been sustained through defendant’s negligence.</p>

<p>Appeal from a judgment of the Apipellate Division of the Supreme Court in the fourth judicial department, entered November 23, 1908, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action io recover possession of assets of the estate of William Bowen, deceased.</p>

Cross-appeals from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered October 14, 1909, affirming a judgment partly in favor of plaintiff and partly in favor of defendant, entered upon the report of a referee in an action to restrain the defendant from trespassing upon certain land.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 5, 1909, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term and granting a new trial in an action to recover a balance alleged to be due for labor performed and materials furnished.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered May 11, 1909, affirming a judgment in favor of defendant entered upon a decision of the court on trial at Special Term, dismissing the complaint upon the merits and directing judgment for defendant on its counterclaim.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 26, 1909, affirming a judgment in favor of the respondents herein entered upon the report of a referee.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 16, 1910, which reversed an order of Special Term denying a motion to vacate a prior order permitting service of the summons in the above-entitled action to be made upon the respondents herein by publication and granted said motion. The following questions were certified : “ 1.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered May 18, 1909, which reversed a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial, and granted a new trial in an action to recover for an alleged conversion of certain shares of stock.</p>

Appeal in each of the above-entitled actions from an order of the Appellate Division of the Supreme Court in the second judicial department, entered January 14, 1910, reversing a judgment in favor of plaintiffs entered upon a decision of the court on trial at Special Term and granting a new trial. The actions were brought to impress trusts upon certain property in the possession of the defendant.