Volume 202 — New York Reports

The nature of the action and the facts, so far as material, are stated in the opinion. There was no breach of the covenant of seizin. The articles in question were personal property and Salomon Marx never agreed to sell, nor did he transfer them to the plaintiff. Being personal property, there was and could be no breach of the covenant of seizin. (McKeage v. H. F. Ins. Co., 81 N. Y. 38; Manning v. Ogden, 70 Hun, 399; Kerby v. Clapp, 15 App.

The nature of the action and the facts, so far as material, are stated in the opinion. Usury must be proved by clear and satisfactory evidence and a preponderance of proof, and the evidence in this case at least raises a question of fact for the jury. (Stillman v. Northrup, 109 N. Y. 473; Flanagan v. Shaw, 74 App. Div. 508; 174 N. Y. 530; Bliss v. Sherill, 52 App.

Appeal, by permission, fiom an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 13, 1911, which affirmed an order of Special Term denying a motion to dismiss the complaint upon the pleading. The following questions were certified: “1.

<p>New York (city of) — construction of contract granting right to pick over refuse at dumps of street cleaning department.</p> <p>By its charter the city of New York was obliged to sweep and to clean its streets and a department was constituted for the purpose, upon which was imposed the duty to perform that work and to remove the street sweepings or refuse, through contracts which the commissioner was empowered to make. (New York City Charter [L. 1901, ch. 466], §§ 534, 539, 541, 544, 546.) When, therefore, the commissioner advertised for bids for the privilege of picking over the refuse at dumps of the department as enumerated and entered into a contract granting that privilege for the same dumps, the law necessarily will imply a covenant by the city to deliver all of its refuse gathered from street cleaning at those dumps, even if exact words to that effect are wanting. Hence, such a contract is not void for lack of mutuality but is binding upon the contractor and he is liable for his default thereon.</p>

order of the Appellate Division of the Supreme Court in the second judicial department, entered January 6, 1910, reversing a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and granting a new trial. The nature of the action and the facts, so far as material, are stated in the opinion.

The material allegations of the complaint are that on the 10th of March, 1908, the defendant leased to one William Fults, the husband of the plaintiff, a farm of 240 acres, situate in the town of Camillus, county of Onondaga. The lease was in writing and provided for a term of one year from the 1st of April, 1908.

The nature of the action and the facts, so far as material, are stated in the opinion. . • . Equity recognizes the right of a plaintiff to relief from an inequitable situation such as here existed. (Gallup v. Bernd, 132 N. Y. 370; Hill v. Buckley, 17 Ves. 394; Belknap v. Sealey, 14 N. Y. 143; Warvelle on Vendors, 975; 1 Sugden on V. & P. ch. 7, § 3; Paine v. Upton, 87 N. Y. 327.) The findings of fact herein sustain the conclusion of law made by the court below.

The facts, so far as material, are stated in the opinion. Assuming the subject-matter is within the police power, yet the act must fail because it is not a valid regulation thereunder in that it denies the relator the equal protection of the laws. (U. S. Const. 14th amend. § 1; Wright v. Hart, 182 N. Y. 330; Matter of Jacobs, 98 N. Y. 98; People v. Wilbur, 198 N. Y. 1; City of Buffalo v. Linsman, 113 App.

The nature of the action and the facts, so far as material, are stated in the opinion. Defendant’s motion for a nonsuit and for direction of verdict upon the ground that plaintiff had failed to establish that her intestate was free from contributory negligence, should have been granted. (Reed v. M. R. Co., 108 N. Y. 315; Hewitt v. Brooklyn Heights R. R. Co., 63 App. Div. 423; Rutz v. N. Y. C. R. Co., 107 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiffs have failed to establish the contract alleged in the complaint by the testimony of disinterested witnesses.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff ratified the transactions conducted in his behalf. (Denny v. Manh. Co., 5 Den. 639; Hall v. Lauderdale, 46 N. Y. 70; Calvin v. Holbrook, 2 N. Y. 126; Montgomery Bank v. Albany City Bank, 7 N. Y. 459; Matter of Flaherty v. Milliken, 193 N. Y. 564; Fowler v. B. S. Bank, 113 N. Y. 450; Riley v. Albany Savings Bank, 36 Hun, 513; Dechen v. Dechen, 59 App.

<p>Appeal from a judgment of the Kings County Court rendered April 25, 1910, at a Trial Term, upon a verdict convicting the defendant of the crime of murder in the first degree.</p> <p>The facts, so far as material, are stated in the opinion.</p>

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

On or about August 8,1888, as the result of a.civil service competitive examination, the petitioner was appointed chainman in the department of docks in said city, at a salary of $12 a week. Thereafter and prior to September, 1908, by various promotions, he had attained the position of assistant engineer in the department of water supply, gas and electricity, and he continued to hold this position until his removal in April, 1910.

<p>Deed— delivery to third person to be delivered to grantee after death of grantor — when title passes under such delivery.</p> <p>A deed may be delivered to a third person with instructions that it be finally delivered to the grantee after the death of'the grantor. In such a ease no title passes until the final delivery, and then and thereafter the title is by relation deemed to have vested in the grantee as of the time of the first delivery to the third person.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The court at Trial Term erred in permitting the defendants, Pauline A. Piffard and D. Halsey Piffard, to testify to the making of the alleged contract with Mrs. McMillan over objection and exception by the plaintiff to their competency under section 829 of the Code of Civil Procedure. (Martin v. Hillen, 142 N. Y. 140; Rogers v. Rogers, 153 N. Y. 343; Jones v. Perkins, 29 App.

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

Schnabel, deceased. The facts, so far as material, are stated in the opinion. The surrogate had the power to pass upon the controversy. (Code Civ. Pro. § 2731.) The jurisdiction of the surrogate to pass upon the validity of these alleged transfers is incidental and necessary to his power to order, supervise and examine the account of the administratrix. (Matter of Ammerell, 38 Mise.

-. The relator was indicted for the crime of murder in the first; degree. The indictment was brought to trial at a term of the7 Court of General Sessions of the city and county of New York, held by a judge of said court with a jury. The trial continued, from the 7th until the 14th day of March, 1910. The jury was, then discharged and the relator was remanded to custody. On March 22, 1910, a writ of habeas corpus was obtained by the relator and duly served.

Appeal by plaintiffs and by the defendant appellant from a final judgment entered May 3, 1910, upon an order of the Appellate Division of the Supreme Court in the second judicial department, which affirmed an interlocutory judgment of Special Term in an action for the construction of certain clauses of the will of Margaretta M. Diehl, deceased. The facts, so far as material, are stated in the dissenting opinion.

The action is to recover the damages sustained by the plaintiff through the false representations made to her by the defendant. April 9, 1906, the plaintiff’s husband and intestate was killed at a highway crossing of defendant’s railroad through a collision between an engine of the defendant and a wagon in which the intestate was riding. The team of the intestate was also killed and his wagon demolished.

The action is to recover the damages sustained by plaintiff through the alleged breach by defendant of a contract between the parties to intermarry. The complaint alleged the contract, its breach by defendant and that plaintiff subsequent to the making of it and confiding in it entered into illicit relations with defendant, by reason of which she gave birth to a child.

The facts, so far as material, are stated in the opinion. Chapter 537 of the Laws of 1893 is a local law, and any act amendatory of a local law is itself a local law. (People ex rel. Purdy v. Fitch, 147 N. Y. 355; People v. Hills, 35 N. Y. 449; People v. O’Brien, 38 N. Y. 193; Corscadden v. Haswell, 177 N. Y. 499; Cahill v. Hogan, 180 N. Y. 304; Matter of City of Rochester v. Bloss, 77 App. Div. 32; Rogers v. Union R. Co., 10 Misc.

The nature of the action and the facts, so far as material, are stated in the opinion. There was no forcible entry or detainer. (Town of Oyster Bay v. Jacobs, 109 App. Div. 613.) It was error to allow the jury to find that neither party had title and that there was a forcible detainer. (Compton v. The Chelsea, 131 N. Y. 538; Town of Oyster Bay v. Jacobs, 109 App.

<p>Chattel mortgage — failure to refile mortgage does not render it invalid against creditors of mortgagor, if mortgagee takes mortgaged property into his possession before the year expires.</p> <p>A mortgagee who, prior to the expiration of the year from the time when the chattel mortgage is first filed and after default by the mortgagor, takes the property into his actual possession, holds the title to said property as such mortgagee under a mortgage then valid, subject only to an accounting, and the failure to subsequently refile the mortgage, pursuant to said statute, does not divest him of his title thereto, nor does it make his title as such mortgagee invalid as against the creditors of the mortgagor.</p>

<p>New York (city of)—right of New York Central and Hudson River Railroad Company to maintain its tracks in certain streets in the city of New York.</p> <p>The right of the New York Central and Hudson River Railroad Company as now exercised to maintain tracks in Tenth, Eleventh and Twelfth avenues and West street in the city of New York was originally derived from the state, through the legislature, and not from the city, by a franchise which was not limited in its duration. The legislature intended that the right should be enjoyed by the successors of the grantee, and, hence, the railroad company js entitled to an injunction restraining the city and its officers from removing or attempting to remove such tracks. The legislature may, however, so regulate the plaintiff’s railroad in the city of New York as to remove the menace and danger to life occasioned by its present operation. (.People v. O'Brien, 111 N. Y. 1, distinguished.)</p>

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

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered January 21, 1910, which affirmed a final judgment of foreclosure and sale entered upon an interlocutory judgment in favor of plaintiff directed by the Appellate Division upon its reversal of a prior judgment of Special Term dismissing the complaint.</p> <p>On the 29th day of January, 1907, the plaintiffs conveyed to the defendant Randall certain real property in the county of Queens, in this state, and took from said Randall a bond of $11,000 with a mortgage on said real property as collateral thereto as a part of the purchase price thereof. Said bond and mortgage were each dated January 29, 1907, and the amount thereof was by the terms of each payable by said Randall on the 13th day of February, 1910, with interest thereon to be computed from the 13th day of February, 1901, at the rate of five and one-half per cent per annum, and to be paid on the 13th day of August next ensuing the date thereof, and semiannually thereafter. No place for the payment of interest or principal was expressly stated in the bond or mortgage.</p> <p>It was further provided therein that the principal sum of $11,000 should become due at the plaintiffs’ option after default in the payment of any installment of interest as therein provided for. thirty days or after default in the payment of any tax or assessment for sixty days.</p> <p>The interest which fell due thereon August 13,1901, was not paid within thirty days after it became due. On the 15th day of July, 1901, the mortgaged property was conveyed to the defendant, The Park Terrace Company, a domestic corporation. At all times subsequent to the 12th day of August, 1901, the defendant, The Park Terrace Company, was ready, willing and able to pay the interest that became due on August 13, 1901, at any place within the state of New York. The plaintiffs at all times subsequent to said 12th day of August, 1901, resided in Waterbury, Connecticut, and had no agent to whom the interest could be paid within the state of New York. The interest not being paid to the plaintiffs within thirty days after August 13, 1901, they elected that the whole principal sum be immediately due and payable, and on or about the 26th day of September, 1901, said The Park Terrace Company had notice and knowledge of such election. The defendant, The Park Terrace Company, thereafter tendered said interest to the plaintiffs at Waterbury, but, the plaintiffs refused to receive the same and this action was brought to foreclose said mortgage. At the trial the question litigated was the right of the plaintiffs to declare the principal of said bond and mortgage due and payable by reason of the failure of the defendants to pay said interest within thirty days after August 13, 1907, or tender the same at Waterbury. At the Special Term plaintiffs’ complaint was dismissed on the merits. An appeal was taken from the judgment entered thereon to said Appellate Division where the judgment was reversed upon questions of law only. { Weyand v. Randall, 131 App. Div. 167.) An interlocutory judgment was entered and a reference was granted to compute the amount due. A report was made by the referee and final judgment was thereafter entered for the foreclosure and sale of the mortgaged property. An appeal was taken therefrom to the Appellate Division, where such judgment was unanimously affirmed. ( Wey- and v. Park Terrace Co., 135 App. Div. 821.) Further facts appear in the opinion.</p> <p>The owner need not follow the mortgagee out of the state. (Thomas on Mort. [2d ed.] 157, § 231; Hale v. Patton, 60 N. Y. 236; Houbie v. Volkening, 49 How. Pr. 169; Olmstead v. Millie, 18 Wkly. Dig. 486; Smith v. Smith, 25 Wend. 405; Fessard v. Mugnier, 18 C. B. [N. S.] 286.)</p> <p>The matters set up to excuse the default in payment of the interest were insufficient in law. (Taylor v. Blair, 59 Him, 347, 351; Lumberman’s Ins. Co. v. Meyer, 197 U. S. 407, 417; Sheldon v. Haxtun, 91 N. Y. 124; Taylor v. Snyder, 3 Den. 145; Spies v. Gilmore, 1 N. Y. 321; Foster v. Julien, 24 N. Y. 28; Adams v. Leland, 30 N. Y. 309; Stoker v. Cogswell, 25 How. Pr. 267; Bank of Orleans v. Gray, 78 Mass. 469; McGruder v. Bank of Wash., 9 Wheat. 598.)</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 1, 1909, affirming a judgment in favor of plaintiff entered upon a- verdict.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The court erred in receiving evidence as to the services rendered and moneys expended by deceased for plaintiff’s children. (Gladding v. Follett, 2 Dem. 58; 30 Hun, 219; 95 N. Y. 652; Murphy v. Holmes, 87 App. Div. 366; Beardsley v. Hotchhiss, 96 N. Y. 201; Tilly v. H. R. R. R. Co., 24 N. Y. 471; Lipp v. Otis Bros., 161 N. Y. 559; Smith v. L. V. R. R. Co., 177 N. Y. 379; Purcell v. Duncan Co., 107 App. Div. 501.)</p> <p>Plaintiff was properly permitted to show that decedent did sewing for her children and bought clothes, shoes and stockings for them. (Ihi v. Forty-second St. R. R. Co., 47 N Y. 37; Johnson v. Long Island R. R. Co., 80 Hun, 306; Myer v. Hart, 23 App. Div. 132; Medinger v. B. H. R. R. Co., 6 App. Div. 42; Tilly v. H. R. R. R. Co., 29 N. Y. 252; Birkett v. Knickerbocker Ice Co., 110 N. Y. 504.)</p>

in the first judicial department, entered January 5, 1910, affirming a judgment in favor of plaintiffs entered upon a verdict. The nature of the action and the facts, so far as material, are stated in the opinion.

The nature of the action and the facts, so far as material, are stated in the opinion. The nearest relative of a person deceased, there being no husband or wife, has a right to the immediate possession of the body for the purpose of burial, and to receive it in the condition in which it is at death. (Foley v. Phelps, 1 App. Div. 551; Jackson v. Savage, 109 App. Div. 556; Cohen v. Congregation, 85 App. Div. 65; Buchanan v. Buchanan, 28 Misc.

The nature of the action and the facts, so far as material, are stated in the opinion. A sealed deed of release has none of the qualities of a contract. (1 Parsons on Cont. 6; Torrey v. Black, 58 N. Y. 185.) An instrument without consideration purporting to release a claim and which is not under seal is void. (Harrison v. Close, 2 Johns. 450; Crawford v. Millspaugh, 13 Johns. 87; Stearns v. Tappin, 5 Duer, 294; Irvine v. Wood, 15 Abb.

The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in denying the motion for a nonsuit and for a direction of a verdict, and in submitting to the jury the question of a safe place in which to work. (Citrone v. O’Rourke Eng. Constr. Co., 188 N. Y. 339; O’Connell v. Clark, 22 App. Div. 466; Strowbridge v. Brooklyn City Railway Co., 9 App. Div. 584; Bertolami v. United Eng. & Const. Co., 120 App. Div. 192; 125 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The alleged transfer is void under the Statute of Frauds. (L. 1896, ch. 547, § 242.) When it is once established that a conveyance absolute on its face is in fact a mortgage, then nothing short of a new deed can divest the holder of the so-called equity of redemption of his interest in the property. (Odell v. Montross, 68 N. Y. 499; Rich v. Dyer, 91 App.

The nature of the action and the facts, so far as material, are stated in the opinion. Payments upon a joint and several note by one of the makers, within six years prior to the commencement of the action, does not affect the defense of the Statute of Limitations as to the other maker who made no payments within that period.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 5, 1910, affirming a judgment in favor of plaintiffs entered upon a verdict directed by the court.</p> <p>The nature of the action, and the facts, so far as material, are stated in the opinion.</p> <p>The evidence is conclusive that the minds of the parties to the proposed lease never met as to many of the essential terms and conditions of a contract of lease, therefore the plaintiffs never earned their commissions, and the direction of a verdict in their favor presents a reversible error. (Bank of Monongahela Valley v. Weston, 159 N. Y. 201, 208; Sundheimer v. City of New York, 176 N. Y. 495; Sibbald v. B. Iron Co., 83 N. Y. 378; Condict v. Cowdrey, 139 N. Y. 273; Pullich v. Casey, 43 App. Div. 122; Haase v. Schneider, 112 App. Div. 336; Sherry v. Praol, 131 App. Div. 771; Bryant v. Ondrake, 87 Hun, 477; Brown v. N. Y. C. R. R. Co. 44 N. Y. 79; Frank v. Hewitt, 56 App. Div. 497; Arnold v. Rothschild’s Sons Co., 37 App. Div. 564; 164 N. Y. 562.)</p> <p>The minds of the defendants and the prospective tenants met on all material elements of a lease and the brokers • earned their commissions. (Smith v. Peyrot, 201 N. Y. 210; Barnard v. Monnot, 3 Keyes, 203; 1 Abb. Ct. App. Dec. 108; Heinrich v. Korn, 4 Daly, 74; Dennis v. Charlick, 6 Hun, 21; Brady v. Foster, 72 App. Div. 416; McQuillen v. Carpenter, 72 App. Div. 595; Suydam v. Healy, 93 App. Div. 396; Cusack v. Ailkman, 93 App. Div. 579; Putter v. Berger, 95 App. Div. 62; Martin v. Werman, 107 App. Div. 482; Moses v. Helmke, 18 Misc. Rep. 357.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The clause in the release should he construed as a covenant and not as a condition subsequent. (Post v. Weil, 115 N. Y. 361; Graves v. Deterling, 120 N. Y. 447; Moore v. Prentiss T. & 8. Co., 133 N. Y. 114; Cunningham v. Parker, 146 N. Y. 29; Allen v. F. L. & T. Co., 18 App.

<p>Practice — trial — referee must sign report by his signature and not by initials — erroneous entry of judgment upon referee’s opinion.</p> <p>1. A referee in making his official report represents the sovereignity of the state in a formal act of justice, and his action should be authenticated in a formal way on account of the importance and dignity of the act.</p> <p>2. While the Code of Civil Procedure does not pi terms say that the referee must sign the decision by subscribing his name, the intention of the legislature is plainly to be implied. A report in writing must be authenticated by the signature of the referee, and mere initials are not a signature in legal proceedings.</p> <p>3. An opinion by a referee giving his conclusions, but omitting to direct the entry of judgment in accordance therewith, is not sufficient, but where a referee has announced his conclusion in an opinion and has not officially determined the issues, justice can be done by remitting the case to him for formal decision as required by law.</p>

Appeal, in the first above-entitled action, from an order of the Appellate Division of the Supreme Oourt in the first judicial department, entered February 24,1911, which affirmed an order of Special Term substantially denying relator’s petition to have canceled an assessment upon certain of its property in the city of New York for the year 1905, and confirming said assessment.

The nature of the action and the facts, so far as material, are stated in the opinion. The evidence of Greorge A. Fromme, an alleged expert, was improperly admitted and he was improperly allowed to answer many questions, the answers being materially prejudicial to defendant’s case. (Dolan v. H, etc., Co., 105 App. Div. 366; Ellis v. Thomas, 81 App. Div. 626; Doherty v. Milliken, 163 N. Y. 527; O'Doherty v. Postal Telegraph Co., 113 App. Div. 636; Davis v. Maxwell, 108 App.

<p>Public service commission—jurisdiction and authority — when city of second class has no power to enact ordinance in conflict with its order.</p> <p>1. The public service commission was established, among other things, for the purpose of promoting uniformity and consistency in authoritative directions to be given to public service corporations, and to constitute a tribunal trained to consider and determine controversies and problems relating to such corporations, and to direct and supervise then- relations to and dealings with the public as their patrons. Hence, when a decision has been made by it in a matter properly before it and within its jurisdiction, a city whose charter does not confer power and authority to take action with reference to the subject-matter involved, inconsistent with the provisions of the Public Service Commissions Law (L. 1907, ch. 429; Cons. Laws, ch. 48), has no power to pass an ordinance nullifying such decision.</p> <p>2. The power of the public service commission to make an order is not dependent upon the receipt of a complaint or petition therefor from a person or corporation, but by express statutory authority the commission is given power to make such an order upon its own motion, and any person interested may, after an order has been made, apply for a re-hearing in respect to any matter determined therein and the commission shall grant and hold such re-hearing if in its judgment sufficient reason therefor be made to appear.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in allowing the plaintiff to prove the value of the work by the officers or estimates of contractors, who were not called as witnesses”. (Hine v. Manhattan Ry.

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

This action was brought to recover the sum of $1,500 as damages for the conversion by the defendant of three finger rings and two ten-dollar bills belonging to the plaintiff, while she was a passenger on the Boston and Albany railroad, leased and operated by the defendant. She also alleged in the same count that said property was lost through the negligence of the defendant.

This action was brought to impress a trust in favor of the plaintiff upon a mortgage for $52,000 held by the defendant, to compel the transfer thereof to the plaintiff with an accounting for all moneys paid thereon and to enjoin the defendant from assigning or incumbering said mortgage during the pendency of the action. The answer, after admitting certain allegations of the complaint, denied the remainder and pleaded the Statute of Limitations for the period of six years.

<p>(1.) Murder—Erroneous admission of evidence tending to show that DEFENDANT HAD, AFTER THE HOMICIDE, MONEY PREVIOUSLY IN THE POSSESSION OF DECEASED.</p> <p>Where the alleged motive for a murder was robbery, it is erroneous, upon the trial of the defendant indicted for such crime, to permit a witness to testify as to a conversation with the deceased the day before the homicide, at which the defendant was not present, tending to show that the deceased then had money in his possession.</p> <p>(2.) Same.</p> <p>Where a witness had testified that nearly a month before the homicide he paid to the deceased certain bills which corresponded with those possessed by the defendant after the homicide, and had been subjected to a cross-examination in an attempt to impeach his memory as to the denomination of the bills and, therefore, the reliability of his testimony, it was error for the court, upon the redirect examination, to allow in evidence, in corroboration of such witness, an affidavit made by him several days after the homicide, in proceedings in no wise connected with the defendant, stating that he had made to the deceased the payment of bills detailed in the direct examination.</p> <p>(3.) Same—Possession of keys of murdered man.</p> <p>Where the murder with which a defendant is charged was not discovered until several days thereafter and it appeared that the deceased lived alone in a sparsely settled locality; that he was wayla’d and shot as he was coming out of his house; that, thereafter, the murderer dragged the dead body back into the house, procured the m uey which furnished the motive for the crime and locked the house :d went away, it is error to receive in evidence a bunch of keys. e of which unlocked doors of the house occupied by the deceased • time of the homicide, and to permit a deputy sheriff to testify that, on the day of defendant’s arrest and a few minutes after defendant-had visited a toilet room, open to the public and never locked, -he found such bunch of keys stuck between a pipe and the wall in plain sight; such facts did not constitute sufficient evidence to connect the defendant with their possession.</p> <p>(4.) Same—Confessions.</p> <p>Where part of the evidence, introduced against a defendant charged with murder, consisted of alleged confessions, the defendant was entitled to a preliminary examination of the witness by whom the confessions were to be proved, for the purpose of showing that improper inducements were used to procure such confessions; but the limit to which such a preliminary examination might be pursued was within the sound judgment and .discretion of the trial judge, and where defendant’s counsel had conducted such an examination to some extent without making any substantial headway and without any prospect of success the trial-judge was justified in curtailing the examination. Nor was there any error upon the facts proven, in the failure of the trial judge to submit to the jury the question whether the alleged confessions were induced by improper methods.</p>

The nature of the action, and the facts, so far as material, are stated in the opinion. The ordinances were a proper exercise of the state’s police power. (Sprague v. Dorr, 185 Mass. 10; People v. Timmerman, 79 App. Div. 565; Polinsky v. People, 73 N. Y. 65; People v. Lieberman, 175 N. Y. 440.) Using these waters for bathing camps for 50 or 100 people was clearly unreasonable, and a use that plaintiff had no right to exercise as against defendant.

The nature of the action and the facts, so far as material, are stated in the opinion. There was evidence from which the jury might have found that the Robert Thompson Company was the agent of the Pope Motor Oar Company, and the trial court erred in holding, as matter of law, that there was no agency. (Partridge v. Commercial Co., 17 Hun, 95; Howard v. Norton, 65 Barb. 161; De Bavier v. Funk, 21 N. Y. Supp. 410; 142 N. Y. 633; Nutting v. K. C. R. Co., 21 App.

' The nature of the action and facts, so far as material, are stated in the opinion. The plaintiff failed to make out a cause of action. (Hudson v. O. S. S. Co., 110 N. Y. 625; La Croy v. N. Y., L. E. & W. R. R. Co., 132 N. Y. 570.) The mere breaking of the rope, unexplained, does not create a cause of action, The doctrine of res »psa loquitur does not apply. (Vogel v. A. B. Co., 180 N. Y. 373; Ivers v. M. D. Co., 84 App.

The nature of the action and the facts, so far as material, are stated in the opinion. Plaintiff failed to comply with section 322 of the Village Law. (Purdy v. City of New York, 193 N. Y. 521; Rauber v. Village of Wellsville, 83 App. Div. 581; Curry v. City of Buffalo, 135 N. Y. 366; Reining v. City of Buffalo, 102 N. Y. 308.) Defendant did not waive its right to object to the insufficiency of the statement. (Kennedy v. Mayor, etc., 34 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The omission of the name of the grantee from the deed of Marvin Palmer rendered that deed ineffective and void. (Allen v. Withrow, 110 U. S. 119; Arguello v. Bours, 67 Cal. 447; Hardin v. Hardin, 32 S. C. 599; Mickey v. Barton, 194 Ill. 446; Clark v. Butts, 73 Minn. 361.) A purchaser will not be required to take a title which depends for its completeness upon parol evidence.

The facts, so far as material, are stated in the opinion. The plaintiff is entitled to recover, having brought about a meeting of the minds of the parties on the terms proposed by the defendants, and nothing having been said to him or to the purchaser about encroachments he cannot be denied his commission because there were in fact encroachments, but unrevealed by the sellers until after the minds of the parties had met and a contract was about to be executed.

The facts, so far as material, are stated in the opinion. The trial court erred in finding that the value of relator’s right to take water in the canal from Niagara river was $23,453,231, and that the proportionate part of said water right pertaining to said street crossings was $704,312. (Wright v. Delafield, 25 N. Y. 266; People ex rel.

Appeal in the first above-entitled proceeding from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 12, 1911, which reversed an order of Special Term overruling objections to the jurisdiction of the court and dismissed the proceeding; also appeal in said proceeding from an order of said Appellate Division, entered May 12,1911, which dismissed an appeal from an order of Special Term dismissing the proceeding on the merits.

<p>Appeal from a judgment of the Supreme Court rendered February 28,1910', at a Trial Term for the county of ¡New York upon a verdict convicting the defendant of the crime of murder in the first degree.</p> <p>The facts, so far as material, ‘are stated in the opinion.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the Second Judicial Department, entered December 30, 1910, which affirmed an order of Special Term sustaining writs of habeas corpus and certiorari and discharging the relator from custody.</p> <p>The facts, so far as material, are stated in the opinion.</p>

The facts, so far as material, are stated in the opinion. The Special Term had no power to make the order appealed from. (2 R. S. ch. 1, tit. 2, art. 2, § 65; Morris v. Siekley, 133 N. Y. 460; McManus v. McManus, 179 N. Y. 344; Matter of Hoffman, 201 N. Y. 255; Ham v. Van Orden, 84 N. Y. 27; Matter of Asch, 75 App. Div. 486; Matter of Roe, 119 N. Y. 509.) The order is not authorized by the statute under which it is made.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered March 18, 1910, affirming a judgment in favor of defendants entered upon a dismissal of the complaint by 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>The mere making of a will is not sufficient to dispose of an estate. (Brown v. Quintard, 177 N. Y. 83; Leggett v. Stevens, 185 N. Y. 70; Byrnes v. Baer, 86 N. Y. 120.) If the devolution of testator’s property by his will is dependent upon its terms only then the will is void, because it is uncertain in its terms. (Bayeaux v. Bayeaux, 8 Paige, 332.) The omission in the will cannot he supplied under rules governing construction of wills. (Redfield on Surrogates [5th ed.], 225; Central Trust Co. v. Egleston, 185 N. Y. 23; Will of Keleman, 126 N. Y. 80; Fosdick v. Delafield, 2 Redf. 392; Meyers v. Eddy, 47 Barb. 266; Leggett v. Stevens, 185 N. Y. 70; Trask v. Sturges, 170 N. Y. 495; Tilden v. Green, 130 N. Y. 51; Wager v. Wager, 96 N. Y. 172; Brown v. Quintard, 177 N. Y. 84.)</p> <p>Disregarding the paragraphing, testator’s plain and unambiguous language effectually devises his real estate to the defendants Hasselbrook, Yordbruch and Meyer. (Benjamin v. Welch, 73 Hun, 371; Govin v. Metz, 79 App. Div. 461; Phillips v. Davies, 92 N. Y. 199; Walter v. Ham, 68 App. Div. 383; Vernon v. Vernon, 53 N. Y. 351; Marion v. Williams, 19 Wash. L. R. 532; Carney v. Kain, 40 W. Va. 758; Schult v. Moll, 132 N. Y. 122; Jarnigan v. Conway, 21 Term. 50; Gourley v. Thompson, 34 Term. 387.) Even if the court should refuse to construe paragraphs first and second as a single sentence the court, by supplying the proper words in paragraph first will give expression to the evident intention of the testator. (Pond v. Bergh, 10 Paige, 140; Finlay v. King, 3 Pet. 377; Carter v. Bloodgood, 3 Sandf. Ch. 321; Covenhoven v. Schuler, 2 Paige, 122; Dew v. Barnes, 54 N. C. 149; Williams on Exrs. § 1085; McKeehan v. Wilson, 53 Penn. St. 74; Ward v. Stanard, 82 App. Div. 393; Matter of Bassett, L. R. [14 Eq. Cas.] 57; Aulick v. Wallace, 75 Ky. 531.) The presumption that a testator does not intend to disinherit a descendant of himself is effectually overcome in this case. (Leash v. Richards, 116 App. Div. 274; 18 8 N. Y. 291; Matter of Brown, 93 App. Div. 295; Low v. Harmony, 72 App. Div. 408; Scott v. Guernsey, 48 App. Div. 106; Prowitt v. Rodman, 37 App. Div. 42.)</p>

<p>Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered July 1, 1910, 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.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The doctrine of anticipatory breach does not apply to the case at bar. (Kelly v. Ins. Co., 186 N. Y. 16; Burtis v. Thompson, 42 N. Y. 246; Hochster v. De la Tour, 2 El. & Bl. 678; Howard v. Daly, 61 N. Y. 362; Windmuller v. Pope, 107 N. Y. 674; Nichols v. Scranton Steel Co., 137 N. Y. 471; Stanford v. Magill, 38 L. R. A. 760.) Assuming that the doctrine of anticipatory breach does apply to the case at bar, the plaintiff’s cause of action is not barred by the Statute of Limitations. (Colburn v. Woodworth, 31 Barb. 381; Hochster v. De la Tour, 2 El. & Bl. 678; Johnstone v. Milling, L. R. [16 Q. B.] 467; Rochue v. Horst, 178 U. S. 1; Pierce v. Tenn. Coal, etc., Co., 173 U. S. 1; Foss-Schneider Brewing Co. v. Bullock, 59 Fed. Rep. 83; Edward Hines Lumber Co. v. Alley, 73 Fed. Rep. 603; Marks v. Van Eeghen, 85 Fed. Rep. 853; Quackenbush v. Mapes, 123 App. Div. 242; Moline Plow Co. v. Webb, 141 U. S. 616; Phoenix Nat. Bank v. Waterhury, 197 N. Y. 161; Pakas v. Hollingshead, 184 N. Y. 211; Burtis v. Thompson, 42 N. Y. 246; Windmuller v. Pope, 107 N. Y. 674.)</p> <p>The legal conclusion of the Special Term dismissing the plaintiff’s complaint is sustained as a matter of law by the finding that in May, 190.0, the contract for personal services to be rendered by the plaintiff to Jane M. Sands was broken by the latter; plaintiff’s actions for damages accrued immediately on this breach and her claim was, therefore, barred by the Statute of Limitations before Miss Sands’ death in August, 1906. (Henry v. Rowell, 31 Misc. Rep. 384; 63 App. Div. 620; Bonesteel v. Van Etten, 20 Hun, 468; Lee v. Decker, 6 Abb. [N. S.] 392; Dillon v. Anderson, 43 N. Y. 231; Howard v. Daly, 61 N. Y. 362; Windmuller v. Pope, 107 N. Y. 674; Kelly v. Ins. Co., 186 N. Y. 16: Nichols v. Scranton Steel Co., 137 N. Y. 471.)</p>

The indictment contained two counts, by the first of which, the defendant was charged with taking the life of Louis Levine “feloniously, willfully, maliciously and unlawfully, and with a deliberate and premeditated design to effect ” his death.

The nature of the controversy and the facts, so far as material, are stated in the opinion. The plaintiff may not discriminate between its patrons as to rates, except where the service rendered or the conditions thereof are different. The plaintiff may not charge patrons receiving the same service different rates, and must charge all patrons receiving the same service one rate.

<p>Appeal from a judgment of the Supreme Court, rendered October 21, 1910, at a Trial Term for the county of Suffolk, upon a verdict convicting the defendant -of the crime of murder in the first degree.</p>

Appeal, by permission, in each of the above-entitled actions from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered upon an order made December 28, 1909, which affirmed a determination of the Appellate Term affirming a judgment of the Municipal Court of the city of New York in favor of plaintiff in an action to recover an installment alleged to be due upon a certificate of endowment insurance.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 21, 1911, which affirmed an order of Special Term confirming the report of commissioners of appraisal in condemnation proceedings, with notice of intention to bring up for review an interlocutory judgment entered upon the report of a referee determining the extent of the appellant’s ownership of lands sought to be condemned.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 16, 1911, which reversed an order of Special Term denying a motion for a re-taxation of costs. 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 July 26, 1910, which affirmed an order of Special Term denying a motion to vacate an order for the examination of the appellant herein as an expected party to an action.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 11, 1909, affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term in an action for an accounting and to recover damages for an alleged illegal sale of plaintiff’s stocks.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered October 15,1910, affirming a judgment in favor of plaintiff entered upon the report of a referee in an action to have declared void certain by-laws of the defendant and to compel plaintiff’s reinstatement as a member thereof.</p>

The motion was made upon the ground that appellant desired to move at Special Term for leave to serve an amended and supplemental answer.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 11,1910, 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 for personal injuries alleged to have been sustained by plaintiff through the ngligence of defendant.</p>

<p>Trial — erroneous direction of verdict — when evidence presents question for the jury.</p> <p>The evidence reviewed, in an action to recover from a firm of stockbrokers the damages for a wrongful and unauthorized sale of stocks, purchased by them for the plaintiff upon a margin; and held, that the facts present a question for the jury, and that it was error to direct a verdict for the defendant.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 1, 1911, which reversed an order of Special Term dismissing a writ of certiorari to review certain assessments for taxation.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 13, 1911, which reversed an order of Special Term granting a motion for a temporary writ of mandamus to compel the defendant to pay an award made in street opening proceedings and denied said motion.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered March 11,1910, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action to restrain the defendant from interfering with the use by plaintiff of Walton lake, a source of its water supply.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered November 4, 1910, which reversed an order of Special Term sustaining a demurrer to the complaint and overruled said demurrer. The following question was certified: “Does the amended complaint state facts sufficient to constitute a cause of action? ”

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 16, 1911, which reversed an order of Special Term sustaining a writ of habeas corpus and discharging the relator from custody, dismissed the proceeding and remanded the relator to custody.

<p>Appeal from a judgment of the Appellate Division of the Supreme ’ Court in the second judicial department, entered March 10, 1909, in favor of defendants, upon the submission of a controversy under section 1279 of the Code of Civil Procedure, as to the proper construction of an agreement for the sale of land.</p>

<p>Appeal from an order of the Appellate Division of the' Supreme Court in the fourth judicial department, entered November 16, 1910, which affirmed a judgment of the Allegany County Court rendered upon a verdict convicting the defendant of the crime of unlawfully practicing medicine.</p>