Volume 203 — New York Reports

The facts, so far as material, are stated in the opinion. Section 246 of the charter confers upon the hoard of estimate and apportionment and the comptroller of the city of New York uncontrollable authority to pay claims repugnant to section 10 of article 8 of the Constitution, and is, therefore, unconstitutional. (People ex rel. Wood v. Lacombe, 99 N. Y. 43; Matter of M. H. Bank, 153 N. Y. 199; People ex rel.

The facts, so far as material, are stated in the opinion. The issue of securities petitioned for by the relator is necessary for the discharge of its obligations and should have been permitted under the provisions of section 69 of the Public Service Commissions Law (L. 1907, ch. 429). (People ex rel. D. & H. Co. v. Stevens, 197 N. Y. 1; Gamble v. Q. C. W. Co., 123 N. Y. 91; Matter of W. G. L. Co., 127 App.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 30, 1910, which reversed an interlocutory judgment of Special Term overruling a demurrer to the separate defenses contained in the answer and sustained such demurrer. The following questions were certified: “1.

<p>Contract — “ tourist parties ”— when person engaged in managing “tourist parties,” who engaged to look after baggage of tourist, not liable for baggage lost while in custody of steamship company upon whose ship the tourist was a passenger.</p> <p>Plaintiff was a passenger on board a steamship under a contract with defendant who was engaged in managing tourist parties, by which “ every detail, baggage, carriages, hotel rates, fees, everything pertaining to the tour from New York hack to New York would be attended to.” On arrival at plaintiff’s destination a steamer steward took plaintiff’s trunk from her stateroom and thereafter it could not be found. In this action, brought to recover damages for its loss, the com-t charged: “ I leave to the jury the question of whether a substantial compliance with that contract required the service of a representative of the defendant upon the steamer.” Held, error.</p>

<p>(1.) Murder—Evidence.</p> <p>The defendant was convicted of murder in the first degree. The conviction was clearly warranted by the evidence, and none of the exceptions are of sufficient importance to justify a reversal of the judgment.</p> <p>(2.) Same—Defendant as witness.</p> <p>The defendant, in exercising his right to become a voluntary witness on this trial, subjected himself to all the rules under which the testimony of witnesses may be probed by cross-examination. The Peo- 1 pie had the right to test the truth and accuracy of his statements, made as a witness upon the trial, by eliciting any other statements previously made either as a witness in some prior proceeding or otherwise.</p> <p>(3.) Same—Charge.</p> <p>The trial justice charged “that William Brown, the deceased, bullied and beat the defendant prior to May 21st, and that they (the jury) may take that into consideration on the question as to whether or not it furnished a motive for the crime.” Held, that although this charge is technically open to criticism, the evidence as to the homicide was so unequivocal that the question of motive was not one of controlling importance.</p> <p>(4.) Same.</p> <p>When a jury excludes from the case the alternative of murder in the second degree by a finding of murder in the first degree, all lower degrees are necessarily eliminated. In such case failure to charge fully as to the degrees of manslaughter is not error.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The provision of the Public Service Commissions Law, taken as an entirety, clearly shows the legislative intention to be that the entire section 38 should apply to “ every common carrier.” (L. 1907, ch. 429.) Section 38 of the Public Service Commissions Law does not apply. (L. 1907, ch. 429.)

<p>(1.) Murder—Suffiency of indictment in common law form.</p> <p>An indictment in the common law form is sufficient to sustain a conviction of murder in the first degree, even though there is no evidence of premeditation and deliberation, where- the proof clearly brings the case within the statutory definition- that a homicide committed by a person while engaged in the commission of a felony constitutes the crime of‘murder in the first degree.</p> <p>(2.) Same—Evidence examined, and held that case was properly submitted TO JURY TO DETERMINE IF MURDER WAS COMMITTED WHILE DEFENDANT WAS COMMITTING FELONY.</p> <p>On examination of the evidence against defendant who was convicted of murder in the first degree, held, that the case was properly submitted to the jury to find whether it was committed while the perpetrator was engaged in the commission of the two distinct felonies of rape and burglary, since the evidence connects him with both, and discloses facts which tend to unite the two felonies as parts of one general scheme and to identify the defendant as its author and perpetrator.</p> <p>(3.) Same—Confessions.</p> <p>Several separate statements in the nature of confessions were made by defendant. The question whether the last of these confessions was made under the influence of fear and hope of leniency was submitted to the jury on conflicting evidence; and the verdict necessarily implies that the confessions were fairly obtained. Held, that the facts disclosed by the record show that the confessions were properly admitted in evidence.</p> <p>(4.) Same—Possession of stolen property as evidence that defendant COMMITTED BURGLARY.</p> <p>The district attorney was clearly within his rights in arguing to the jury that the defendant’s unexplained possession of the stolen property was evidence which should be considered upon the question whether the defendant committed the burglary, and in the commission thereof perpetrated the murder.</p>

<p>(1.) Gambling—A person who takes part in a game, of games, of POKER FOR AMUSEMENT IS NOT A “ COMMON GAMBLER ” WITHIN THE MEANING OF THE STATUTE (PENAL LAW, § 970).</p> <p>A person who merely takes part in a game or series of games o£ poker on precisely the same terms as the other participants in the-game, for mere amusement or recreation and not as a professional gamester, does not thereby become a common gambler under our-statute.</p> <p>(2.) Same—When person playing poker is not an accomplice okDEALER OB GAMEKEEPER WITH WHOM HE WAS PLAYING.</p> <p>Defendant was indicted for and convicted of being a common-gambler under section 970 of the Penal Law. He was convicted on the testimony of a single witness who participated with him in a game of draw poker. The defendant was indicted not for engaging-as a player in a game of poker, but for engaging therein as a dealer- and gamekeeper. Weld, that the witness was not an accomplice in the-, sense of being a gamekeeper within the meaning of the statute requiring the testimony of an accomplice to be corroborated (Code Crim.. Pro., § 399); hence, the evidence was sufficient to warrant the conviction and the court was not called upon to charge that “ if the jury-find that the People’s witness was an accomplice their verdict must be a verdict of acquittal.”</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The admission in evidence of an interlocutory and final judgment of divorce against Dr. Wainright, the corespondent in an action in which he had been defendant and of questions as to his acts upon which that divorce was predicated was error. (Stevens v. Stevens, 54 Hun, 490; Beadleston v. Beadleston, 20 N. Y. S. R. 21; Davis v. Davis, 4 Misc.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 15,1900, which reversed an interlocutory judgment of Special Term overruling a demurrer to the complaint and sustained such demurrer, with leave to plaintiff to amend the complaint. The nature of the action, the facts, so far as material, and the question certified are stated in the opinion.

The nature of the action and the facts, so far as material, are stated in the opinion. The city is bound to exercise due care to keep the streets in a safe condition and is liable for permitting dangerous nuisances therein. (Landau v. City of New York, 180 N. Y. 48; Vogel v. Mayor, etc., 92 N. Y. 10; Storrs v. City of Utica, 17 N. Y. 104; Requa v. City of Rochester, 45 N. Y. 129; Wilson v. City of Watertown, 3 Hun, 508; Carpenter v. City of New York, 115 App.

Cboss-appeals by the relator and the intervenor from an order of the Appellate Division of the Supreme Court in the third judicial department, entered January 4, 1911, which reversed an order of Special Term reducing the special franchise tax of the relator, for the year 1908, .from $6,900,000, as fixed by the state board of tax commissioners, to $3,596,326.35, but modified the determination of said tax board by reducing the valuation to $6,141,000.

The nature of the action and the facts, so far as material, are stated in the opinion. Plaintiff was guilty of conversion of the cement it held for defendant, and thus invited and justified a rescission of the contract. (Greenl. on Ev. § 642; Murray v. Burling, 10 Johns. 172; Bristol v. Burt, 7 Johns. 254; Frishberg v. Wissner, 125 App. Div. 627; Buchanan v. Smith, 10 Hun, 474; Collins v. Bennett, 46 N. Y. 490; Ross v. Southern C. O. Co., 41 Fed.

<p>Election Law—registration of electors—unconstitutionality of the statute (L. 1911, ch. 649, § 6) requiring personal registration of electors residing outside of cities or villages with a population of five thousand or more.</p> <p>1. Whatever is necessary to render effective any provision of a Constitution, whether it is a grant, restriction or prohibition, must be deemed implied and intended in the provision itself. Hence, when the Constitution provides that certain voters “shall not he required to apply in person for registration at the first meeting of the” inspectors, it is implied that the legislature is prohibited from passing any statute to the contrary, because that implication is necessary to render the provision effective.</p> <p>2. The legislature exceeded its power in providing that all voters residing outside of cities or villages with a population of five thousand or more whose names do not appear on the poll book of the last general election shall apply in person in order to be registered, and the attempt to impose this -requirement, as made by section 6 of chapter 649 of the Laws of 1911, is unconstitutional and void.</p>

The facts, so far as material, are stated in the opinion. The portions of chapter 946 of the Laws of 1911 which amend sections 331, 368 and 134 of the Election Law are clearly unconstitutional and void. (Matter of Halpin, 108 App. Div. 271; Matter of Callahan, 200 N. Y. 60; Matter of McCloskey, 21 Misc. Rep. 365; Matter of Bolger, 48 Misc. Rep. 584; Matter of Independent Nominations, 186 N. Y. 278; Wynehamer v. People, 13 N. Y. 393; People ex rel.

• The facts, so far as material, are stated in the opinion. Whether a justice of the Municipal Court of the city of New York can or cannot he elected at the coming general election in the sixth district of the borough of Brooklyn, the present proceeding is unauthorized in law, without precedent and entirely unnecessary. (People ex rel. Davis v. Cowles, 13 N. Y. 350; People ex rel. Meagher v. Voorhis, 115 App. Div. 891; People v. O’Brien, 38 N. Y. 193; People ex rel.

The facts, so far as material, are stated in the opinion. The sections of the Tax Law authorizing the valuation of special frachises by the state board of tax commissioners have no relation to the relator’s occupations of streets, highways and public places in the city of Buffalo, for the reason that the legislature did not intend, and could not constitutionally intend, to give them any such application.

order of the Appellate Division of the Supreme Court in the first judicial department, entered December 30, 1909, reversing a judgment hi favor of plaintiff entered upon a verdict directed by the court and granting a new trial. The nature of the action and the facts, so far as material, are stated in the opinion. Hoyt had no express or implied power to indorse checks.

<p>Negligence — charitable corporations not exempt from liability for tort — when not liable for injuries due to negligence of ambulance driver furnished by livery stable — ambulance not a dangerous instrumentality as a matter of law.</p> <p>1. A charitable corporation is not exempt from liability for a tort against a stranger because of the' fact that it holds its property in trust to be applied to purposes of charity.</p> <p>2. Where an ambulance owned by the defendant and bearing the name of its hospital was kept at a livery stable, the proprietor of which furnished a horse to draw the ambulance and a man to drive it on such occasions as the defendant might indicate, the driver having been hired and paid by the livery stable keeper, who alone had the power to discharge him, the relation of master and servant is not established between the defendant and such ambulance driver as might be furnished from the livery stable. Such a contract does not make the driver the servant of the hirer or render his negligence imputable to the latter.</p> <p>3. The fact that a city ordinance gives the right of way to ambulances in the public streets in no manner authorizes the driving of such vehicles at a dangerous rate of speed. There is no foundation, therefore, for the doctrine that an ambulance is necessarily a dangerous instrumentality. {Baldwin v. Abraham, 57 App. Div. 67; affd., 1711ST. Y. 677; and Howard v. Ludwig, 171 N. Y. 507, distinguished.)</p>

The facts, so far as material, are stated in the opinion. The area or territory of Sylvan Beach was incorporated and now exists in violation of the Constitution of the state of New York and the office of police justice created thereunder is a nullity and Thomas P. Bryant had no right or jurisdiction to commit the relator. (Const, of N. Y. art. 3, § 18; Read v. Schmit 39 Hun, 223; People ex rel.

The action was brought by plaintiff; in behalf of himself individually and also as assignee of several others to recover the amounts which they severally subscribed and paid under a syndicate agreement, on the ground that they were induced so to subscribe and pay by the fraud of the defendant.

The facts, so far as material, are stated in the opinion. The amounts paid for rights to maintain an elevated structure, acquired by the relator and its predecessors from the abutting property owners, are not a part of the value of the special franchise. (People ex rel. Panama R. R. Co. v. Comrs., 104 N. Y. 240; People ex rel. Manhattan Ry. Co. v. Barker, 146 N. Y. 304; People ex rel. D., L. & W. R. R. Co. v. Clapp, 152 N. Y. 490; People ex rel. Manhattan Ry.

Appeal, by permission, from an order of the Appellate. Division of the Supreme Court in the second judicial department, entered April 21, 1911, which dismissed an appeal from an order of Special Term setting aside a report of commissioners of appraisal in condemnation proceedings and remitting the matter to new commissioners. The facts, so far as material, and the question certified are stated in the opinion.

<p>Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered January 21, 1911, which affirmed an order of Special Term striking out provisions for extra allowances of costs from a judgment in partition.</p> <p>The facts, so far as material, and the questions certified are stated in the .opinion.</p> <p>The court may not, on motion, review its own judgment, or re-exercise its discretionary powers. (CodeCiv. Pro. § 8253; Kiernan v. A. Ins. Co., 3 App. Div. 26; Gennert v. Butterick, 133 App. Div. 86.) The allowance made by the court was right and within its power. (Code Civ. Pro. § 3253; Van Meter v. Kelly, 137 App. Div. 455; Crossman v. Wyckoff, 64 App. Div. 554; Chittenden v. Gates, 25 App. Div. 623; Defendorf v. Defendorf, 42 App. Div. 167; Bryant v. Allen, 54 App. Div. 500; L. I. L. & T. Co. v. L. I. C. & N. R. R. Co. 85 App. Div. 36; Waterbury v. Cordage Co., 152 N. Y. 610.)</p> <p>Extra allowances to all the parties may not exceed in the aggregate five per cent. (Code Civ. Pro. §§ 3253, 3254; Doremus v. Crosby, 66 Hun, 125; Fraser v. McNaughton, 58 Hun, 80; MacFarlane v. Brower, 63 Misc. Rep. 183; Van Meter v. Kelly, 137 App. Div. 455.) The court has no power to grant extra allowances to parties who are not entitled to tax costs. (Couch v. Millard, 41 Hun, 212; Jordan v. Hess, 54 N. Y. S. R. 326; Kahn v. Schmidt, 83 Hun, 541; Frost v. Reinach, 40 Misc. Rep. 412.) Excessive and unauthorized allowances may be stricken out on motion. (Code Civ. Pro. § 724; Cooper v. Cooper, 51 App. Div. 595; 164 N. Y. 576; Schulte v. Lestershire B. & S. Co., 88 Hun, 226; Bockes v. Hathorn, 17 Hun, 87; Clapp v. McCabe, 155 N. Y. 525; Cooper v. Cooper, 51 App. Div. 595; Corn Exchange Bank v. Blye, 119 N. Y. 414; Ladd v. Stevenson, 112 N. Y. 325; Clark v. Scovill, 198 N. Y. 279; Supervisors v. Briggs, 3 Den, 173; Stephens v. Central Nat. Bank, 168 N. Y. 560; Conaughty v. Saratoga County Bank, 92 N. Y. 401; Kraushaar v. Meyer, 72 N. Y. 602; Leonard v. Columbia, 84 N. Y. 48.) The court may open and amend its judgment at the instance of defaulting defendants. (Code Civ. Pro. § 724; Cooper v. Cooper, 51 App. Div. 595; 164 N. Y. 576; Corn Ex. Bank v. Blye, 119 N. Y. 414; Ladd v. Stevenson, 112 N. Y. 325; Clark v. Scovill, 198 N. Y. 279.)</p>

The facts, so far as material, are stated in the opinion. Plaintiffs’ claim against the defendant was duly and .properly scheduled according to the provisions of the United States Bankruptcy Law, and the decree discharging the defendant released him from the plaintiffs’ judgment. (Lent v. Farnsworth, 94 App. Div. 99; 180 N. Y. 503; Lutz v. Kalmus, 115 N. Y. Supp. 230; Matter of Mollner, 75 App. Div. 441; People ex rel.

The nature of the a-ction and the facts, so far as material, are stated in the opinion. No cause óf action in favor of the plaintiff was proven upon the trial.

The indictment contained two counts. The first one alleged the details of grand larceny by means of false representations. The false representations charged were that here presented that he had expended the sum of money in question in the purchase of platinum for the benefit of complainant when he had not, and it was alleged that both the false representations and receipt of the money occurred in the city of New York.

<p>Sale — construction of contract for purchase and sale of foreign goods — when buyer may not repudiate contract and refuse to accept goods, because invoices were mutilated and because goods were not imported expressly for buyer — rejection of evidence.</p> <p>1. Defendant contracted to purchase from plaintiff certain bales of silk as specified. The defendant refused to receive the silk when tendered upon the ground that the documents attached to the invoice had been mutilated and that the silk was not imported by plaintiff but bought by it on the market expressly for the defendant. Held, that as the alleged mutilation consisted only of cutting out the name of the person to whom certain certificates were issued as to qualities of the silk, and as it was no part of the contract that the silk should be imported by plaintiff, defendant had no right to reject it on either ground.</p> <p>2. As to some of the silk offered by plaintiff to meet the requirements of the contract, defendant offered evidence tending to show that it did not comply with its terms. Objection was taken that the silk was not rejected upon the question of quality, and upon inquiry by the court as to the object of the evidence, which was not disclosed, the objection was sustained. Held, that it is apparent from the record that the evidence was offered as matter of defense rather than in reduction of damages, and if the plaintiff wished to introduce the evidence in order to reduce damages it should under the circumstances have so stated so that the court could have understood its position.</p>

The nature of the action and the facts, so far as mate-trial, are stated in the opinion. The explosion clause does not relieve an insurance company from liability for loss directly caused by an accidental fire in the insured premises. (Richards on Ins. Law [3d ed.], 370; Kerr on Ins. 370; 2 May on Ins. [4th ed.] § 416a; 3 Joyce on Ins, § 2772; Elliott on Ins. 212; Washburn v. A. Ins. Co., 29 Fed. Cas. 308; Washburn v. U. F. Ins. Co., 29 Fed. Cas. 329; Washburn v. M. V. Ins.

Terry as candidate for member of assembly from the first assembly district in the county of Kings to be insufficient and invalid and enjoining and restraining the board of elections of the city of New York from having printed the name of the said Edmund R. Terry as such candidate upon the official ballot.

<p>Public Service Commissions Law — provisions not in conflict with sections 9-13 of Stock Corporation Law — reorganization of railroad corporation — authority of commission as to issue of securities.</p> <p>1. The enactment of the Public Service Commissions Law (Cons. Laws, ch. 48) did not repeal the provisions in the Stock Corporation Law (Cons. Laws, ch. "59) for the reorganization of the property and franchises of corporations sold under foreclosure, and, on the other hand, the provisions of the Stock Corporation Law do not withdraw corporations formed on reorganizations from compliance with section 55 of the Public Service Commissions Law. The two statutes must be construed together.</p> <p>2. Sections 53 and 54 of the Public Service Commissions Law, requiring the approval by a public service commission of the exercise or transfer of franchises by a railroad corporation, do not apply to a corporation formed on the reorganization of a railroad corporation after foreclosure.</p> <p>3. Under the provisions of section 55 of the Public Service Commissions Law, a public service commission is not justified in refusing to consent to the issue of securities by a railroad corporation under a plan of reorganization after foreclosure because the value of the mortgaged property and the amount of new capital to be invested is less than the amount of securities sought to be issued.</p>

The assessors of the city of Troy placed upon the assessment roll of said city for the year 1907 a special franchise assessment against the relator of $640,500, in two parts or items, as follows, viz.: “Troy Gas Co., President and Directors of. “Special Franchise, value as fixed by State Tax Commissioners of State of New York, under Chapter 712, Laws of 1899, $600,000.00.” “Troy Gas Company, President and Directors of. “Special Franchise, value as fixed by State Tax…

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff was permitted to show over the objections and exceptions of the appellant that the motorman was discharged by it subsequent to the accident, and for this reason the judgment should be reversed. (Winters v. Naughton, 91 App. Div. 80; Schmidt v. D. D., etc., R. R. Co., 3 N. Y. S. R. 257.)

<p>Will —rule of construction applied.</p> <p>1. It is an established rule that the courts should give effect to every word and provision of a will, in so far as they may, without violating the intent of the testator or well-established rules of law.</p> <p>3. A provision in a will, “I leave to my wife the house and all the furnishings at No. 336 E. 43 St. for the rest of her natural life the interest in the real estate held by me and my brother John C. Eidt to be held together for Two years or less in case of death of my wife within two years or date of settlement one third Interest to go to Mrs. Anna Deibel,” is to be construed as a devise to the wife of the one-half interest in the real estate owned by the testator in common with his brother.</p>

On November 24, 1905, the Metropolitan Beal Estate Improvement Company, a domestic corporation, executed to the defendant, Guardian Trust Company of New York, a domestic trust company corporation, a mortgage covering a large tract of land in the city of Yonkers, to secure two thousand bonds of $500.00 each, to be issued by said improvement company. The mortgage instrument includes a form for the proposed bonds and also the covenants and agreements of the parties in'detail.

The nature of the action and the facts, so far as material, are stated in the opinion. The defendant is estopped. (Colden v. Cornell, 3 Johns.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered March 21, 1910, affirming a judgment of the Municipal Court of the city of New York in favor of plaintiff. 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 refusal of the court to instruct the jury that all directions to ship this car over the Lehigh Valley railroad were merged in the written contract was most prejudical to the defendant, and was contrary to the established law of this state. (4 Am. & Eng.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 30, 1909, reversing a judgment in favor of defendants 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 giving by the Arto-Litho Company of the chattel mortgage upon the press and other machinery, and obtaining thereon the sum of $10,000 to use in its business, allowing the mortgagee to take possession under this mortgage and selling the press at public auction to satisfy the indebtedness secured by the mortgage, was a waiver of all right under its contract to claim that the press was unsatisfactory. (Morton v. Tibbett, L. R. [15 Q. B.] 428; Blenkinsop v. Clayton, 7 Taunt. 597; Schouler on Pers. Prop. [3d ed.] § 407; Browne v. Forbes, 108 N. Y. 387; Levison v. Seybold Machine Co., 22 Misc. Rep. 327; Allen v. G. S. H. Co., 85 Hun, 537; Kienle v. Klingman, 24 Misc. Rep. 708; Van Winkle v. Crowell, 146 U. S. 42; Houston v. Clark, 62 Ill. App. 174; Wyler v. Rothschild, 53 Neb. 566; Hansen v. Bebee, 111 Iowa, 534; L. & M. T. Co. v. Collier, 89 Iowa, 144.)</p> <p>The giving of the chattel mortgage upon the press before the test, contem plated to be made, had been made, constituted no acceptance of the machine as a matter of law. (Gurney v. A. & G. W. Ry. Co., 58 N. Y. 358; Benjamin on Sales [5th ed.], 752; Osborne & Co. v. McQueen, 67 Wis. 392; Tompkins v. Lamb, 121 App. Div. 366; 195 N. Y. 518; Cassidy v. Horton, 32 Misc. Rep. 148; Bensler v. Locke, 4 Misc. Rep. 486; Cooke v. U. Mfg. Co., 57 Hun, 107; 138 N. Y. 610.)</p>

Mary S. Robinson, the testatrix, died a resident of Westchester county, October 16, 1909, leaving an estate consisting of personal property only. She left an instrument in writing bearing date January 26, 1904, purporting to be her last will and testament. It was offered for probate in the Surrogate’s Court of Westchester county and her next of kin and the attorney-general of the state of New York were duly cited to appear in the proceeding.

The nature of the action and the facts, so far as material, are stated in the opinion. The power of a court of equity to restrain the prosecution of the defendant’s suit in Illinois is undoubted. (Cole v. Cunningham, 133 U. S. 107; Hayes v. Ward, 4 Johns. Ch. 123; Ward v. Arredondo, Hopk. Ch. 243; Mitchell v. Bunch, 2 Paige, 606; N. Y. & N. H. R. R. Co. v. Schuyler, 17 How. Pr. 464; 17 N. Y. 592; People v. Erie Ry. Co., 36 How. Pr. 129; Claflin & Co. v. Hamlin, 62 How.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff failed to fulfill its contract, and was not entitled to recover. (People v. N. R. W. Co., 38 N. Y. S. R. 92; Bank of Montreal v. Recknagel, 109 N. Y. 482; Oakley v. Morton, 11 N. Y. 25; Roberts v. Opdyke, 40 N. Y. 259; Glacius v. Black, 50 N. Y. 145; Weeks v. O’Brien, 141 N. Y. 199; Sager v. Gonnermann, 50 Misc.

The nature of the action and the facts, so far as material, are stated in the opinion. The bond was invalid and of no effect and never became a binding obligation upon this defendant because it was not signed by the employee. (U. C. L. Ins. Co. v. U. S. F. & G. Co., 99 Md. 423; U. S. F. & G. Co. v. Ridgeley, 97 N. W. Rep. 836; Adelberg v. U. S. F. & G. Co., 45 Misc. Rep.. 376; Platauer v. American Bonding Co., 92 N. Y. Supp. 238; Smith v. Molleson, 148 N. Y. 246; Union Ins.

The nature of the action and the facts, so far as material, are stated in the opinion. As a general proposition and in the absence of unusual and extraordinary circumstances the owner of a building used and occupied by several tenants is not negligent simply because he fails to keep the halls and stairways of a building lighted. (Hilsenbeck v. Guhring, 131 N. Y. 674; Brugher v. Buchtenkirch, 167 N. Y. 153; Gorman v. White, 19 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The judgment should be reversed because it protects the plaintiff, a stock corporation, in the use of the trade name “Dr. Pierce,” in carrying on the unlawful business of conducting the hospital and medical practice founded by Dr. Pierce.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 24, 1910, affirming a judgment in favor of plaintiff entered upon a verdict. The nature of the action and the facts, so far as material, are stated in the opinion. The trial court committed reversible error in excluding proper and competent testimony offered by defendant.

The nature of the action and the facts, so far as material, are stated hi the opinion. The smn at least of $3,615 or $3,990 was actually earned on the original contract before the contractor’s default, and became subject to the liens of the lienor appellants upon the filing of the same. (Kane Co. v. Kinney, 174 N. Y. 69; Kelly v. Bloomingdale, 139 N. Y. 343; Miller v. Mead, 127 N. Y. 544; Van Clief v. Van Vechten, 130 N. Y. 571; Rieser v. Commeau, 129 App.

The facts, so far as material, are stated in the opinion. The Appellate Division erred in reversing the order granting the writ of mandamus. (Holroyd v. Town of Indian Lake, 180 N. Y. 318; Swift v. Mayor, etc., 83 N. Y. 528; Davidson v. Vil. of White Plains, 197 N. Y. 266; Miller v. Bush, 87 Hun, 507; Gardner v. Bd. of Health, 10 N. Y. 409; Appleton v. Water Comrs., 2 Hill, 432; People ex rel. Pennell v. Treanor, 15 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The complaint should have been dismissed, for the reason that from the allegations of- the complaint and the evidence given upon the trial, it appears that at the time of the commencement of the action there was no liability on the part of the defendant. (Code Civ. Pro. §§ 398, 416; Haynes v. Onderdonk, 2 Hun; 619; Matter of Griswold, 13 Barb. 412; Milner v. Milner, 2 Edw.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 19, 1911, which affirmed an interlocutory judgment of Special Term overruling a demurrer to the complaint. The following question was certified: “Does the complaint state facts sufficient to constitute a cause of action ? ” . The nature of the action and the facts, so far as material, are stated in the opinion.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered March 15, 1910, affirming a judgment in favor of plaintiff entered upon a decision of the Eensselaer County Court on trial without a jury.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>Even if fraud incident to the contract had been proved this action could not be maintained against the defendant. (Studer v. Bleistein, 115 N. Y. 324; 2 Pom. Eq. Juris. § 892; Slaughter v. Gerson, 80 U. S. 379; Farrar v. Churchill, 135 U. S. 609; Smith v. Countryman, 30 N. Y. 681.) An action to recover damages is not sustainable against an infant on a contract nor upon a tort connected with the formation of and incident to the contract. (Nash v. Jewett, 4 L. R. A. 561; 2 Kent’s Comm. 242; Cooley on Torts, § 107; Addison on Torts, § 1314; Louis v. Eberhardt, 102 U. S. 300; West v. Moore, 14 Vt. 447; Bigelow on Fraud, 355.)</p> <p>An action of deceit will lie against an infant upon the sale of a horse with the warranty of soundness where the defendant knew him to.be unsound. (Wort v. Vance, 9 Am. Dec. 683.)</p>

<p>Equitable conversion — definition and application of doctrine of equitable conversion — definition and effect of term “legal representative ” when used in deed or contract — lease of lands giving lessee option to purchase of lessor or his legal representatives — when actual tender of purchase price need not be made to legal representatives of such lessor.</p> <p>1. The doctrine of equitable conversion rests on the presumed intention of the owner of the property and on the maxim that equity regards as done what ought to be done. The conversion usually becomes effective at the date of the instrument expressing the intention, if a deed or contract, and if a will, at the date of the testators death. This is the rule when an absolute and not a contingent conversion is intended; but where no conversion is intended, unless a contingent event happens, conversion should not be presumed as of a date earlier than when the contingent event happens.</p> <p>2. The words “legal representative” ordinarily mean the executor or administrator, and that meaning will be attributed to them in any instance unless there be facts existing which show that the words were not used in their ordinary sense, but to denote some other and different idea.</p> <p>3. Where one party to a contract is able and -willing to perform, and has made due effort to that end, no actual tender need be made if performance has been prevented by the other party, or the situation is such that the amount to be tendered cannot be known without a judgment of the court, or some of the persons entitled to the money are infants, so that no tender can be made to them.</p> <p>4. The owner of lands gave an option thereon to plaintiff, in which it was provided that the covenants therein should be binding on the parties and “then-heirs, legal representatives, successors or assigns.” The plaintiff, if it exercised such option, was required within a specified period to notify the owner “or his legal representative ” of its intent so to do. Such notice was sought to be given to the administratrix of the owner. She had actual knowledge of plaintiff’s intent to exercise the option, but sought to evade service of the notice, which was in fact given to one of the heirs who acted for all the others, such heir refusing to carry out the option. Held, that plaintiff had complied with the requirement of the option as to notice of its intent to purchase.</p>

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

, an attorney, to deliver to the petitioner certain documents, on execution by. the latter of an undertaking in the sum of $20,000 conditioned to pay to the appellant “such sum as shall eventually be determined to be now justly due * * * by this petitioner on account of legal services performed or alleged by him to have been performed.” The order was made in a summary proceeding instituted by respondent to compel the appellant to deliver to it said documents which he claimed…

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 21, 1911, which affirmed an order of Special Term directing the trial of certain issues raised by the pleadings in this action prior to the trial of the remaining issues. The appellant brought the action to' recover a balance claimed to be due on a contract for services.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff’s assignment was, on the admitted facts, valid and effectual to transfer to her the policy and- the right to recover and receive the proceeds thereof. (St. John v. A. M. L. Ins. Co., 13 N. Y. 31; Valton v. N. F. L. Assur. Co., 20 N. Y. 32; Olmstead v. Keyes, 85 N. Y. 593; Carraher v. M. L. Ins. Co., 11 N. Y. S. R. 665; Classey v. M. Life Ins.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 31, 1910, which affirmed a final judgment in favor of plaintiff entered upon an interlocutory judgment of. Special Term overruling a demurrer to the complaint.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The statute under which this action is brought, being in derogation of a rule of the common law, should he construed strictly. The act itself specifically provides the penalty for a violation of its provisions. The injuries received by plaintiff’s horses, as set forth in the complaint, do not come within the penalty prescribed by the statute. (Beck v. Carter, 68 N. Y. 289; Stafford v. Ingersoll, 3 Hill, 38; Knight v. R. R. Co., 99 N. Y. 25; Lent v. R. R. Co., 130 N. Y. 504; Donnegan v. Erhardt, 119 N. Y. 174.)</p> <p>Section 32 of the Eailroad Law enjoins upon railroad corporations the duty of building and thereafter maintaining fences along the sides of their railroads. This provision is for the benefit of passengers upon trains and the owners and occupants of lands through which the road passes. ¡Negligence of the defendant to perform this duty renders it liable for all damages which are the direct result of the injury. (Corwin v. N. Y. & E. R. R. Co., 13 N. Y. 42; Shepard v. B., N. Y. & P. Ry. Co., 35 N. Y. 640; Purdy v. N. Y. & N. H. Ry. Co., 61 N. Y. 353; Tracy v. T. & B. Ry. Co., 38 N. Y. 433; Graham v. President, etc., of D. & H. C. Co., 46 Hun, 386; French v. W. N. Y. & P. Ry. Co., 72 Hun, 469; Grannan v. Westchester Racing Assn., 16 App. Div. 8; Donnegan v. Erhardt, 119 N. Y. 468; Mendizabel v. N. Y. C. & H. R. R. R. Co., 89 App. Div. 386; Crandall v. Eldridge, 46 Hun, 411.)</p>

<p>Decedent’s estate — proceedings to sell decedent’s real estate for the payment of his debts—judgment creditors of an heir or devisee of decedent necessary parties thereto.</p> <p>Under the provisions of the Code of Civil Procedure (§§ 2752-2756), regulating' the sale of a decedent’s real estate for the payment of his debts, judgment creditors of an heir or devisee of such decedent have a substantial interest to protect in the proceeding, and must be made parties thereto.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March IV, 1910, reversing a judgment in favor of plaintiff entered upon a verdict directed by the court and granting a new trial in an action to recover for an alleged conversion.</p>

1910, unanimously affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover money alleged to have been paid under fraudulent representations.

<p>Appeal from a judgment of the Appellate Division, of the Supreme Court in the second judicial department, entered January 15,1910, affirming a judgment in favor of plaintiff entered upon a verdict.</p>

<p>Appeal from an order of the Appellate 'Division of the Supreme Court in the first judicial department, entered January 27, 1911, which affirmed an order of Special Term denying a motion for a peremptory writ of mandamus to compel the appointment of the petitioner to the position of assistant to the principal or head of department in the public schools of the city of New York upon the nomination of the board of superintendents.</p>

order of the Appellate Division of the Supreme Court in the first judicial department, entered September 28, 1911, which reversed an order of Special Term granting a motion for a peremptory writ of mandamus to compel the board of elections of the city of New York to print ballots to he used at the coming general election in accordance with the provisions of section 331 of the Election Law as it stood prior to its amendment by chapter 619 of the Laws of 1911.

Appeal, hy permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 19, 1911, which reversed an interlocutory judgment of Special Term sustaining a demurrer to the complaint and overruled such demurrer in an action for deceit. The following questions were certified: “First. Does the complaint state facts sufficient to constitute a cause of action ? “ Second.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 19, 1911, which modified and affirmed as modified an order of Special Term granting a motion for judgment upon the pleadings in a judgment creditor’s action to secure the sale of an alleged interest of the defendant Billings in his father’s estate to satisfy a judgment. The following questions were certified: “First.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial depart - ment, entered July 14, 1911, which- reversed an interlocutory judgment of - Special Term overruling demurrers to the complaint and sustained such demurrers in a creditor’s action against stockholders of the Newfoundland Syndicate who, it was alleged, had procured their stock for less than par. The following questions were certified: “First.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 16, 1911, which modified and affirmed as modified an order of Special Term confirming the report of commissioners in condemnation proceedings.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered March 10, 1911, which affirmed the determination of the police commissioner of the city of New York in dismissing the relator from the position of patrolman in the police department of said city.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 16, 1909, affirming a judgment in favor of plaintiff entered upon a verdict dismissing defendant’s counterclaim for funds alleged to have been unlawfully appropriated by plaintiff while acting as president of the defendant company.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 11, 1908, which affirmed a deter- • miration of the Appellate Term reversing a judgment of the Municipal Court of the city of New York entered upon a verdict in favor of defendant and granting a new trial.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 16, 1910, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term in an action to recover for an alleged breach of contract.</p>

. Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 27, 1910, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial at Special Term in an action to restrain the defendant from so operating a fish factory as to constitute an alleged nuisance.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 3, 1909, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant in failing to keep its highways in repair.</p>

Appeal, by permission, from an ordei of the Appellate Division of the Supreme Court in the first judicial department, entered June 23, 1911, which affirmed an order of Special Term granting a motion for judgment on the pleadings in favor of plaintiff.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered June 10, 1910, affirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury in an action to recover under an alleged agreement whereby the defendants were to pay to plaintiff a certain percentage of their gross receipts in consideration of permission to string their wires along the streets and avenues of the city of Buffalo.</p>

, mission of a controversy, under section 1219 of the Code of Civil Procedure, as to the marketabilty of the title to certain real property.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 14, 1910, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover damages alleged to have been sustained by plaintiff through the failure of defendant stockbrokers to execute his order to sell certain stock.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 22, 1910, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial at Special Term and granting a new trial in an action to obtain a construction of certain policies of life insurance.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 25, 1910, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover a balance alleged to be due for work done under a contract.</p>

Court in the fii’st judicial department, entered July 13, 1910, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action upon an undertaking given to discharge an attachment.

<p>Appeal from a judgment of the Appellate Division of the Supreme Oourt in the fourth judicial department, entered May 24, 1910, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover upon an account for goods alleged to have been sold and delivered.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 9, 1911, which reversed an order of Special Term granting a motion to vacate a warrant of attachment, an order purporting to revive and continue an action against defendant, and a judgment entered against defendant. The following questions were certified: “ 1.

<p>Appeal from a judgment entered April 11, 1910, upon an order of the Appellate Division of the Supreme Court in the fourth judicial department, overruling defendant’s exceptions, ordered to be heard in the first instance by the Appellate Division, denying a motion for a new trial and directing judgment for plaintiff upon the verdict.</p>

An alternative writ of mandamus was issued April 2, 1910, commanding the respondents to reinstate the relator to the office of policeman in the city of Rome, from which office he had been removed, or show cause why the writ should not be obeyed and make return thereto as required by statute. A return was duly filed to the writ and upon the trial an order was made denying the writ of peremptory mandamus.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered May 11, 1910, affirming’ a judgment in favor of plaintiffs entered upon a decision of the court on trial at Special Term in an action to secure the cancellation of certain certificates of sale of lands for non-payment of certain assessments levied thereon and to set aside said assessments.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 17, 1909, reversing a judgment in favor of plaintiffs entered upon a decision of the court at a Trial Term without a jury, and granting a new trial in an action to recover rent alleged to be due under a lease.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 10, 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 continuing to empty its sewers into a creek bordering plaintiff’s lands and for damages.</p>