Volume 203 — New York Appellate Division Reports

<p>Municipal corporations — city of Utica — negligence — action for death of child caused by injuries received owing to defective condition of “chute” or “slide” on playground maintained voluntarily by city under General Municipal Law, art. 13 — error to dismiss complaint upon theory that city was acting in governmental capacity.</p> <p>In an action against the city of Utica to recover damages for the death of a child resulting from injuries received owing to the defective condition of a “ chute ” or slide ” on a playground maintained by the city by virtue of article 13 of the General Municipal Law, a permissive legislative act, it was error to dismiss the complaint upon the theory that the city in maintaining the playground was acting in a governmental capacity,' since the city, having voluntarily undertaken the enterprise of furnishing playgrounds, it is its duty to protect the children using them, at least from its own negligence.</p>

<p>Executors and administrators — trusts—trust fund created by will distinguishable from “ legacy ” referred to in Surrogate’s Court Act, § 218 — not within provision of said section preventing payment before expiration of year—■ ample securities in estate to set up trust upon issuance of letters testamentary—trust should have been set up without delay — costs — under Surrogate’s Court Act, § 278, surrogate has discretion to allow costs to party to proceeding for construction of will whose views are not adopted — such party not unsuccessful party.</p> <p>A trust fund created by will is distinguishable from a “ legacy ” as referred to in section 218 of the Surrogate’s Court Act and does not come within the provision of said section that no legacy shall be paid ordinarily before the expiration of one year from the granting of letters.</p> <p>Accordingly, where the executors and trustees of a will have in their hands, upon the issuance of letters testamentary to them, ample securities to set up a trust provided by the will, and there is nothing in the will or the surrounding circumstances indicating any intent on the part of the testatrix to postpone the enjoyment of the trust created, the trust should be set up without delay.</p> <p>Under section 278 of the Surrogate's Court Act, the surrogate has discretion in a proceeding for the construction of a will to allow costs out of the estate to a party whose views in respect to such construction are not adopted, if the party’s attorney rendered service in the proceeding to the petitioner or the estate. Such a party is not necessarily an unsuccessful contestant.</p>

<p>Crimes —grand larceny, first degree —instructions — defendant charged with obtaining money for deed to realty by falsely representing that company of which he was president owned realty — company had equitable title only — another company had record title but was in fact lienor — no evidence that defendant represented that he had legal, marketable and record title — indictment charged that neither defendant nor his company had any title or right to convey ■— error for court to instruct jury that they might find that defendant represented that his company had legal, marketable and record title.</p> <p>Upon the trial of an indictment for grand larceny in the first degree charging that the defendant, by falsely and fraudulently representing that a realty company of which he was president owned certain realty, obtained money in exchange for an instrument purporting to be a deed to an interest in the property, it was reversible error for the court to instruct the jury that they might find that the defendant represented that he had a legal, marketable and record title to the property, where it appears that the said company had the equitable title; that another realty company had the record title but was in fact only a lienor; that there was no evidence that the defendant said that he had a legal, marketable and record title, and that the indictment charged that neither the defendant nor his company had any title or right to convey.</p>

<p>APPEAL by the plaintiff, Michael Polucek, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Queens on the 23d day of March, 1921, upon the decision of the court, rendered after a trial at the Queens Special Term, dismissing the complaint on the merits.</p>

<p>Motor vehicles —registration — under Highway Law, § 282, as amended by Laws of 1920, chap. 687, and Laws of 1921, chap. 580, use of motor vehicle still governs registration — peremptory mandamus order directing Tax Commission to register Ford automobile of “ Station Wagon” type as private motor vehicle for personal use properly granted — use of car entirely personal and not commercial.</p> <p>Under section 282 of the Highway Law, as amended by chapter 687 of the Laws of 1920 and chapter 580 of the Laws of 1921, the use made of a motor vehicle is still an element governing registration. Accordingly, a peremptory mandamus order directing the State Tax Commission to register as a private motor vehicle for personal use a Ford automobile with a wooden body of the type known as a “ Station Wagon ” was properly granted where it appears that the use of the car is entirely personal and not commercial.</p>

Appeal by the plaintiff, Central Trust and Savings Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 27th day of July, 1918, upon the report of a referee appointed to hear and determine, dismissing the complaint.

Appeal by the plaintiffs, Ernest Buffer and others, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 27th day of July, 1918, upon the report of a referee appointed to hear and determine, dismissing the complaint.

Appeal by the defendant, Alexander Baruchin, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day of October, 1922, denying defendant’s motion to vacate an order of arrest.

Appeal by the plaintiff, Edward B. LaFetra, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 4th day of February, 1922, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term.

Appeal by the defendant, Robins Dry Dock and Repair Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 1st day of May, 1922, upon the verdict of a jury for $17,500, and also from an order entered in said clerk’s office on the 10th day of May, 1922, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, New Jersey Fidelity and Plate Glass Insurance Company, from an order of the Supreme Court, made at the Kings Special Term and entered in the office of the clerk of the county of Queens on the 26th day of July, 1922, granting plaintiff’s motion for summary judgment, and also from a judgment of the Supreme Court in favor of the plaintiff, entered in said clerk’s office on the 28th day of July, 1922, pursuant to said order.

Appeal by the defendant, President and Directors of the Manhattan Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 20th day of June, 1922, upon the decision of the court rendered after a trial before the court without a jury, and also from an order of said court, made at the Queens Special Term and entered in said clerk’s office on the 30th day of June, 1922, denying defendant’s motion…

Appeal by the plaintiff, Beaumont Construction Co., Inc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 6th day of March, 1922, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendant, Colonial Finance Corporation, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of September, 1922, denying defendant’s motion for an order compelling the plaintiffs to separately state and number their causes of action.

<p>Master and servant — action to recover value of bonds stolen by messenger, furnished by defendant to plaintiff by hour, to whom they were intrusted for delivery to third persons — defendant did not have knowledge that messenger was being used to transfer bonds — defendant not liable.</p> <p>A corporation, engaged in the business of furnishing messengers at the rate of thirty cents per hour to deliver packages for customers, which was not incorporated as a common carrier, is not liable for the value of negotiable bonds stolen by a messenger to whom they were intrusted by a customer for delivery to third persons where there was no contract fixing the corporation’s liability and where the corporation did not have any knowledge of the fact that the bonds were to be intrusted to the messenger for delivery.</p> <p>While the corporation owed a duty to its customers to make a reasonable investigation of the qualifications of its messengers and for failure to perform that duty it would be liable to any customer for the loss of an ordinary package, the contract and duty of the corporation did not make it liable for loss of property of special value without specific notice that that property was to be intrusted to the messenger to carry.</p> <p>Dowling and Page, JJ., dissent.</p>