Volume 205 — New York Reports

The nature of the proceeding and the facts, so far as material, are stated in the opinion. The plaintiff had full authority to institute this proceeding. (Cons. Laws, ch. 49, §§ 8, 17; N. Y. C. & H. R. R. R. Co. v. Untermyer, 133 App. Div. 146.) There was no change of route within the meaning of the Railroad Law, and compliance with the provisions thereof relative to a change of route was not necessary. (1 Lewis on Em.

The nature of the action and the facts, so far as material, are stated in the opinion. Under the Railroad Law, the remedy or relief which the relators can obtain, assuming that they are entitled to substantial relief herein, is that the railroad company shall restore the street to “ such state as not to have unnecessarily impaired its usefulness.” (Consol. Laws, ch. 49, § 11.) The relators adopted the proper remedy.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff’s intestate was guilty of contributory negligence as matter of law. (Perez v. Sandrowitz, 180 N. Y. 397; Baxter v. A. & S. El R. R. Co., 190 N. Y. 439; Weiss v. M. St. Ry. Co., 33 App. Div. 221; Wecker v. B. R. C. & S. R. R. Co., 136 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The facts proven present a plain and simple question of accord and satisfaction which must he decided in favor of the defendant. (Harris v. Van Wart, 96 N. Y. 642; Fuller v. Kemp, 138 N. Y. 231; Nassoiy v. Tomlinson, 148 N. Y. 326; Logan v. Marshall, 18 App. Div. 353; 162 N. Y. 624; Komp v. Raymond, 42 App. Div. 32; Rothschild v. Mosbacher, 26 App.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 29, 1911, 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>It was reversible error to admit the testimony of the plaintiff as to personal transactions with her mother, the testatrix. (Hutton v. Smith, 175 N. Y. 316; Yates v. Root, 4 App. Div. 439; Fisher v. Verplanck, 11 Hun, 150; Mitchell v. Holland, 72 App. Div. 224; Pringle v. Burroughs, 185 N. Y. 315.) The court erred in permitting witnesses to testify to declarations of testatrix made after the making of the will. (Jackson v. Kniffen, 2 Johns. 31; Matter of Potter, 161 N. Y. 25; Marx v. McGlynn, 88 N. Y. 358; Waterman v. Whitney, 11 N. Y. 151; Sanford v. Ellithorp, 95 N. Y. 48; La Bau v. Vanderbilt, 3 Redf. 384, 390, 392, 412; Lane v. Moore, 151 Mass. 81; Mason v. Williams, 53 Hun, 398; Throckmorton v. Holt, 180 U. S. 552.)</p> <p>No testimony of the plaintiff was received concerning a personal transaction between her and her deceased mother, Ellen Raidy, in violation of section 829 of the Code of Civil Procedure. (Matter of Zinke, 90 Hun, 121.) The declarations made by the testatrix both before and after making the will were properly received in evidence. (Abbott’s Trial Evidence [2d ed.], 146, 141, 151, 158; Wigmore on Evidence, § 1133; Marx v. McGlynn, 88 N. Y. 351; Waterman v. Whitney, 11 N. Y. 151; Matter of Kennedy, 161 N. Y. 163; Matter of Woodward, 167 N. Y. 28; Shailer v. Bumstead, 99 Mass. 112; Haines v. Hayden, 95 Mich. 332; Roberts v. Bidwell, 136 Mich. 191; Davis v. Davis, 123 Mass. 590; Rusling v. Rusling, 30 N. J. Eq. 603.)</p>

The nature of the' action and the facts, so far as material, are stated in the opinion. The direct evidence of the eye-witnesses produced hy the plaintiff affirmatively proved that the deceased was guilty of contributory negligence as a matter of law. (Baxter v. A. & S. E. R. R. Co., 190 N. Y. 439; Hoffman v. S. R. T. Ry. Co., 50 App. Div. 83; Flynn v. Joline, 135 App. Div. 291; Greene v. Met. St. Ry. Co., 100 App. Div. 303; Johnson v. T. A. R. R. Co., 69 App.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered October 28, 1910, which reversed a determination of the Appellate Term affirming a judgment of the Municipal Court of the city of New York in favor of plaintiff and granted a new trial. 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 complaint does not state a cause of action. The statute in force at the time of the advance referred to imposed no liability upon the defendant, the trustee mider a trust mortgage, to pay the tax thereon and no such liability could thereafter fee created. (People ex rel. McKnight v. U. B. & P. Co., 63 Misc. Rep. 132; City of Rochester v. Gleichauf, 40 Misc.

The facts, so far as material, are stated in the opinion. The intent of the Primary Law is that the names of candidates for delegates to the national convention should head the ticket. (L. 1911, ch. 891, § 58.) Neither'se'ction 53 of the Election Law, as amended by chapter 4 of the Laws of 1912, nor section 58 confers any right upon any candidate for election as delegate to a national convention to have his name printed in any particular place upon the primary ballot.

The nature of the action and the facts, so far as material, are stated in the opinion. The action is properly brought by a taxpayer of New York city, and an injunction in such an action is provided for by statute. (Steele v. Vil. of Glen Park, 193 N. Y. 341; L. 1902, ch. 301; Cons. Laws, ch. 24, § 51.) The required public notice of a hearing was not given prior to the enactment of the said amendment.

<p>(1.) Murder—Eight of trial by jury.</p> <p>The right of trial by jury, both in England and here; Is embedded in the Constitution; and with us it is a right which in criminal cases cannot be waived. But the method of securing that right, in respect of selecting men who are deemed qualified to act as jurors, is one of legislative cognizance which is subject to any change that does not trench upon the fundamental right.</p> <p>(2) Same—Qualifications of jury.—property qualifications.</p> <p>A verdict, either in a civil or criminal case, will not be set aside merely on the ground that one or more of the jurors had not the property qualification required by law. If the objection is not raised when the jury is drawn, the parties are concluded, although the fact may not have come to their knowledge until after the trial. This is the rule as to strictly legal and technical objections, not of objections which go to the character of th'e juror, and show that he labored under prejudices and prepossessions which rendered him incapable of acting impartially in the case, and that in all human probability there has not been a fair trial. Cases of the latter character might exist, in which it would be competent and proper for the court to set aside a verdict.</p> <p>(3.) Same—Objection must be taken at time of calling jury.</p> <p>When a defendant has had a trial conducted according to the established forms of law, and his guilt has been certified, upon competent and sufficient evidence, by a jury of twelve in number who were capable of deciding his case fairly and impartially, he has had all that is guaranteed to him by the Constitution, and he should not be heard upon technical and purely statutory objections, which do not affect the merits of his case, and which he might have made, but failed to make, at the trial in the manner prescribed by law. (Cancemi v. People, 18 IT. Y. 128, distinguished.)</p> <p>(4.) Same.</p> <p>Upon the trial of defendant on an indictment for murder in the first degree of which he was found guilty upon evidence which amply supports the verdict, one of the jurors, at the time the jury list from which he was drawn was made, owned nó real estate and was not assessed for any personal property but was qualified as the husband of a woman who was the owner of a freehold estate of the value of $150 belonging to her in her own right. Before the trial the wife sold her real estate and at the time of the trial neither husband nor wife had any interest in real estate nor was the juror assessed for personal property. Held, that the Constitution does not prescribe the qualifications of jurors; that the qualifications of this juror were open to investigation when he was called; that the defendant’s failure to interpose a challenge must be deemed a waiver of the objection which might have been taken. (Code Civ. Pro., § 1180.)</p> <p><5.) Same.</p> <p>Origin, development and extent of constitutional right to trial by jury, and the procedure with reference to the challenge to jurors considered and authorities collated.</p>

September 2, 1902, Henry A. Clark and Cornelia, his wife, gave their note for $600 to one Eoss payable three months after date. On the same day they executed and delivered to him a bond conditioned for the payment of $600 three months after date, and a mortgage to secure the payment of said bond. While said bond and mortgage were really given to secure the payment of said note, this was not in any way stated in the instruments themselves.

The nature of the action and the facts, so far as material, are stated in opinions. Plaintiff was entitled to pay for the excavation, measured according to the contract terms, even though part of the excavation was done by the railroad company and not by the plaintiff.

The nature of the action and the facts, so far as material, are stated in the opinion. The denials in the answer herein are sufficient. (E. A. Co. v. Mittenthal, 194 N. Y. 473; Thompson v. Wittkop, 184 N. Y. 117.) The objection to the insufficiency of a defense may he taken at the trial. (Ampersand Hotel Co. v. Home Ins.

The Metropolitan Surety Company was a domestic corporation authorized by its charter to guarantee “ the performance of contracts other than insurance policies ” and to execute or guarantee “bonds and undertakings required or permitted in all actions or proceedings or by law required.” On the 5th of January, 1909, an action was commenced in the Supreme Court of this state by the attorney-general in the name of the People to dissolve said company upon the ground that it had…

The facts, so far as material, are stated in the opinion. Under section 51 of the General Municipal Law a taxpayer who seeks an inspection of a public record is bound to show that he has some “direct and tangible” interest in it. (People ex rel. Henry v. Cornell, 35 How. Pr. 31; Matter of Lord, 59 App. Div. 591; People ex rel. Woodill v. Fosdick, 141 App. Div, 450; Brewer v. Watson, 71 Ala. 299; Phelan v. State, 76 Ala. 49; Randolph v. State, 82 Ala. 527; State ex rel.

Section 1175 of the charter does not give the board of health power to refuse access to the records arbitrarily, but merely authorizes it to regulate inspection by means of rules, which must be reasonable. (L. 1901, ch. 466, § 1175.) . The rule restricting the right of inspection to those who have a private interest' in the records is unreasonable and invalid. (Matter of Lord, 34 Misc.

<p>Appeal from a judgment of the Supreme Court, rendered April 8, 1911, at a Trial Term for the county of Monroe, upon a verdict convicting the defendant of the crime of murder in 'the first degree; also from orders disallowing a demurrer to the indictment, denying a motion for a new trial, denying a motion in arrest of judgment, and denying a motion to inspect the minutes of the grand jury.</p> <p>The facts, so far as material, are stated in the opinion.</p>

<p>Certiorari— New York (city of) — what is implied by order of Appellate Division unanimously affirming proceedings dismissing relator from the police force of New York city.</p> <p>1. An order of the Appellate Division dismissing a writ of certiorari and unanimously affirming the proceedings before a police commissioner dismissing a policeman from the department necessarily includes a decision that there was evidence supporting, or tending to sustain, the finding of the commissioner that the relator was guilty of the charges made against him.</p> <p>2. Whether there was evidence to support or tending to sustain such finding is a question of law, but it is one that cannot be reviewed in this court, because of the constitutional provision as to the effect of a unanimous decision of the Appellate Division.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 18, 1911, affirming a judgment in favor of plaintiffs entered upon a decision of the court on trial at Special Term.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The admission of check stubs in evidence was error. (Wigmore on Ev. § 1539; Vosburgh v. Thayer, 12 Johns. 461; Smith v. Rentz, 131 N. Y. 169; Simons v. Steele, 82 App. Div. 202; Dykman v. Northbridge, 80 Hun, 258; Peck v. Von Keller, 70 N. Y. 604.) No basis of facts is established for any presumption that the checks aggregating $5,108.45 constitute an indebtedness of Charles F. Hoagland to the estate. (Manning v. J. H. Ins. Co., 100 U. S. 693; Best on Ev. 95; Diel v. M. P. R. R. Co., 37 Mo. 454; O’Gara v. Eisenlohr, 38 N. Y. 296.)</p> <p>There was no error in the reception of check stub entries, (Livingston v. Arnoux, 56 N. Y. 517; Abbott’s Trial Ev. 799; Dakin v. Walton, 85 Hun, 561; Merrill v. Ithaca R. R. Co., 16 Wend. 586; Bentley v. Falker, 24 App. Div. 562; Leland v. Cameron, 31 N. Y. 121; Fisher v. Mayor, etc., 67 N. Y. 77; Greenl. on Ev. § 115; Post v. Kennerson, 52 L. R. A. 515; Wharton on Ev. [3d ed.] §§ 238-240; Meyer v. Brown, 130 Mich. 119; Lassone v. B. & L. R. R. Co., 17 L. R. A. 525; Vosburgh v. Thayer, 12 Johns. 161.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. There is no statutory warrant for any of the three copies included in the verdict. (Baker v. City of New York, 56 App. Div. 350; People v. Heiselbetz, 30 App. Div. 199; People ex rel. Hennessy v. Coler, 65 App. Div. 217.) The recovery of double fees for the copy furnished to the attorney for the accused is wholly without legal justification. (Code Civ.

The nature of the action and the facts, so far as material, are stated in the opinion. There is no basis for the filing of a copy of the stenographer’s minutes in the clerk’s office at the public expense. (Baker v. City of New York, 56 App. Div. 350; People v. Heiselbetz, 30 App. Div. 199; People ex rel. Hennessy v. Coler, 65 App. Div. 217.) The city is not liable for a copy of stenographer’s minutes delivered to the attorney for the accused even though ordered by the judge.

This action was brought to construe the last will and testament of Eliza Graf, late of the borough of Brooklyn, who died on the fourth of October, 1909, leaving both real and personal property but neither ancestor nor descendant, brother or sister.

Appeal by plaintiff from á judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 10, 1911, which affirmed a judgment of Special Term construing the will of Margaret A. Harrison, deceased.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered November IT, 1911, which reversed an order of Special Term denying a motion by plaintiff for judgment on the pleadings and granted said motion, with leave to defendants to withdraw their demurrer and serve an answer.

The nature of the action and the facts, so far as material, are stated in the opinion. Defendant’s motion for a nonsuit should have been granted on account of failure to show freedom from contributory negligence. (Clancy v. N. Y., N. H & H. R. R. Co., 201 N. Y. 235; Wieland v. D. & H. Co., 167 N. Y. 19; Zaun v. L. I. R. R. Co., 130 App. Div. 719; Getman v. D., L. & W. R. R. Co., 162 N. Y. 21; Drago v. N. Y. C. & H. R. R. R. Co., 139 App. Div. 828; Lamb v. Union Ry.

The nature of the action and the facts, so far as material, are stated in the opinion. The motorman had no reason to expect that a helpless infant, without sufficient knowledge or ability to escape when warned of danger, would stray upon the right of way. He did everything in his power to avert the accident the instant he discovered that the child was in a place of danger. No negligence on the part of the defendant was shown, and the complaint should have been dismissed.

<p>Will — action for construction— judgment, as to title of real estate without the state, invalid—when action involving boundaries of land must be at law not in equity.</p> <p>1. An action cannot be maintained for construction of a will where the will creates no trusts and the estates given by it are all legal, not equitable, except under section 1866 of the Code of Civil Procedure.</p> <p>2. An action will not lie under section 1866 to determine the validity, construction or effect of a testamentary disposition of real estate situated without the state, since a judgment rendered by our courts as to the title of real estate without the state is a nullity.</p> <p>3. Where there is no question as to the validity, construction or effect of a will, the question of boundaries of lands devised thereby, in the absence of some special equity, is one to be determined at law.</p>

26, 1911, upon an order of the Appellate Division of the Supreme Court in the fourth judicial department, overruling plaintiff’s exceptions, ordered to he heard in the first instance by the Appellate Division, denying a motion for a new trial and directing judgment for defendant on the nonsuit granted at the Trial Term. The nature of the action and the facts, so far as1 material, are stated in the opinion.

The nature of the action and the facts, so far as material, are stated in the opinion. As it was claimed that the defendants were liable both as directors and as members of the syndicate, and the case was submitted to the jury on that theory, it was error to refuse to charge that “if Hr.

The nature of the action and the facts, so far as material, are stated in the opinion. The statement signed hy plaintiff’s witness James E. Kelly, and admitted by him to have been prepared in his presence and signed by him on the night of the accident, was material and competent evidence bearing upon the credibility of the witness, and its exclusion was error. (Hanlon v. Ehrich, 80 App. Div. 359; 86 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The Appellate Division erred in allowing the defendant interest on capital employed in the firm’s business. (Van Santvoord’s Eq. Pr. 183; Kennedy v. Porter, 109 N. Y. 550; King v. Leighton, 100 N. Y. 392; Ames v. Downing, 1 Bradf. 321; Russell v. McCall, 141 N. Y. 437; Kastner v. Kastner, 53 App.

•On the 3d day of May, 1895, the defendant was indicted for the crime of forgery in the first degree, in that on the 9 th of November, 1893, in his capacity as commissioner of deeds, he willfully, falsely and feloniously certified that a mortgage “purporting to have been made and executed by one James Cahill to one Caroline Barry in the sum of $4,000 * * * was acknowledged by a party thereto, to wit, the said James Cahill, * * * whereas in truth and in fact * * * such…

The nature of the action and the facts, so far as material, are stated in the opinion. No contractual or statutory liability was alleged or proven. (Thatcher v. Morris, 11 N. Y. 437; Otis v. Harrison, 36 Barb. 216; Knickerbocker, Trust Co. v. Iselin, 185 N. Y. 54; Ruse v. M. B. L. I. Co., 23 N. Y. 522; Christensen v. Eno, 106 N. Y. 97; Thompson v. Knight, 74 App. Div. 316; Bostwick v. Young, 118 App. Div. 490; Rathbone v. Ayer, 84 App.

David H. Valentine, a resident of the borough of Brooklyn, died on the 21st of December, 1910, intestate, and the relators are the administrators of his estate. Por some years prior to his death he owned a parcel of land at the corner of Vernon avenue and Newtown creek, the part facing the latter being used as water-front property, and that facing the former for small stores and shops.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 15, 1911, 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 engineer’s failure to turn on the injector was not an act intended to be covered by the provisions of section 43 of the.

<p>Contract — construction of contract for excavation of shaft and tunnel—held, that, under terms of contract, the contractor cannot recover for alleged extra work but may recover for changes in work directed by engineer in charge thereof.</p> <p>1. Plaintiff’s assignor entered into a contract with defendant to excavate a tunnel in rock under the Harlem river and a shaft connecting therewith. The contractor agreed, among other things, “that neither the parties of the first part, nor the aqueduct commissioners, or any of them, are to be held responsible that any of the said estimated quantities shall be found even approximately correct in the construction of the work; that he is satisfied with, and will at no time dispute, the said estimated quantities as a means of comparing the bids aforesaid, and that he will make no claim for anticipated profits, or for loss of profit, because of a difference between the quantities of the various classes of work actually done, or of materials actually delivered, and the said estimated quantities; and the contractor hereby undertakes and agrees that he will complete the entire work to the satisfaction of the aqueduct commissioners, and in accordance with the specifications and the plans herein mentioned, at the prices herein agreed upon and fixed therefor, except for such extra work; ” and further that if the rock was found unsatisfactory by a certain test drift provided for “the tunnel is to be started at a lower elevation, as shown in dotted lines on sheets 45 and 46,- or at any other grade or grades that the engineer may designate.” Held, that the direction of the engineer to excavate 161 feet deeper in order to find suitable rock in which to construct the tunnel was but carrying out the provision of the contract. It was not, therefore, the performance of extra work but of work included in and provided for by the contract.</p> <p>3. The contractor claims a breach of the contract as to lining a portion of the shaft and that by direction of the engineer he ordered iron for lining the tunnel, a matter which was in the discretion of the engineer; that thereafter the latter order was countermanded and plaintiff asks damages therefor, including loss of profits. The plaintiff also complains of a breach of contract relative to dumping grounds. Held, that he is entitled to recover such damages as he may be able to show that he has sustained "by such violations of his rights under the contract.</p>

In May, 1908, the plaintiff’s intestate, while in the employ of the defendant, lost his life under the following circumstances according to the uncontradicted evidence: In a building owned and occupied by the defendant, eight stories high, there were two Otis electric passenger elevators side by side in the same shaft, separated by “I” beams laid at right angles to the respective entrance floors and on the same level therewith.

The nature of the action and the facts, so far as material, are stated in the opinion. The doctrine of res ipsa loquitur is not applicable to the facts in this case. (Schlappendorf v. A. R. T. Co., 127 N. Y. Supp. 47; 142 App. Div. 554; Henson v. L. V. R. R. Co., 194 N. Y. 205; Scott v. Nauss Bros. Co., 126 N. Y. Supp. 23; Dittmar v. E. E. Ill. Co., 125 App.

The plaintiff brought the two actions, which have been consolidated into the present one, to recover damages of the defendant, upon causes of action arising out of the performance by his assignor of two contracts made with it. These contracts were for “ regulating and paving with Macadam pavement ” the roadways of Eleventh avenue, from Kingsbridge road to Fort George road, and Fort George avenue, from Amsterdam avenue to Eleventh avenue.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered August 19, 1911, which affirmed an interlocutory judgment of Special Term overruling a demurrer to the complaint. The nature of the action, the facts, so far as material, and the questions certified, are stated in the opinion. Dower and the effect of divorce thereon is controlled by the jurisdiction where the land lies.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered October 27, 1911, 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. Section 42a of the Eailroad Law does not apply to street surface railroads, but only to steam railroads.

The nature of the action and the facts, so far as material, are stated in the opinion. The tentative trust originally created was transformed into a gift by the delivery of the pass book and declarations made at the time. (Matter of Totten, 179 N. Y. 112; Matter of Davis, 119 App. Div. 35; O’Brien v. W. Savings Bank, 101 App. Div. 108; Farleigh v. Cadman, 159 N. Y. 170; Whitfield v. G. S. Bank, 4 Law Bul. 69; Devoe v. Lutz, 133 App.

The nature of the action and the facts, so far as material are stated in the opinion. Plaintiff’s intestate was a trespasser upon both the Wabash engine and the tracks of defendant. And the defendant, in the absence of evidence that it willfully or wantonly injured him, is not liable. (Van Alstine v. S. L. H. & P. Co., 116 App. Div. 100; Streets v. G. T. Ry. Co., 76 App.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 5, 1911, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term. The nature of the action and the facts, so far as material, are stated in the opinion. The skids and horse as used constituted a “way” within the provisions of the Labor Law. (Cons.

The nature of the action and the facts, so far as material, are stated in the opinion. The defendant Fred C. Hart was a competent witness under section 829 of the Code. He was interested in the event, hut he did not testify to a personal transaction or communication between himself and the deceased.

The facts, so far as material, are stated in the opinion. The exercise of the right inherent in an attorney to say that he will not act for certain persons, does not work forfeiture of his rights, nor of his property, nor compel him to surrender to the offensive individual any of the fees which he has already earned. (Avery v. Jacob, 15 N. Y. Supp. 564; Tenney v. Berger, 93 N. Y. 524; 3 Pom. Eq.

The nature of the claim and the facts, so far as material, are stated in the opinion. The appropriation did not involve a change of the plans of construction within the meaning of section 6 of the Canal Law, and the assent of the canal board was not requisite therefor. (L. 1903, ch. 147, §§ 4-6; People v. Fisher, 116 App. Div. 677.) The contention is untenable that there was any wrongful delegation by the state engineer of the exercise of his judgment.

The action is to recover the damages resulting from personal injuries to plaintiff by reason of the negligence of the commissioners of highways of the defendant in failing to maintain a guard wall upon the north end of a culvert within a public highway from which plaintiff’s horse fell.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial denartment, entered December 2, 1910, which reversed an interlocutory judgment of Special Term sustaining a demurrer to the complaint and overruled such demurrer.

<p>Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 9, 1911, which affirmed an order of Special Term granting a motion for an injunction pendente lite to restrain the defendants from holding or causing to be held any election for an additional director of the defendant United States Woven Label Company.</p> <p>The facts, so far as material, and the questions certified are stated in the opinion.</p> <p>The provision in the certificate of incorporation prohibiting a change in the number of directors except by the unanimous consent of all stockholders, is illegal and void, because it conflicts with section 26 of the Stock Corporation Law. (Bond v. A. T. C. Co., 137 App. Div. 671; Katz v. H. & H. Mfg. Co., 109 App. Div. 49; 183 N. Y. 578; Thompson on Corp. §§ 174, 314; Oregon Ry. Co. v. O. Ry. Co., 130 U. S. 1; Shoun v. Armstrong, 59 S. W. Rep. 790; E. P. R. Co. v. Boughan, 14 N. Y. 546; First Nat. Bank v. Lanier, 78 U. S. 369; Bullard v. Nat. Eagle Bank, 85 U. S. 589; People ex rel. Fairchild v. Preston, 140 N. Y. 549.) The general policy of the state is to give to a majority of the stock the right to increase the number of directors. (Flynn v. B. C. R. R. Co., 158 N. Y. 493; 1 Morawetz on Corp. §§ 34, 475, 515, 516 Gamble v. Q. Co. W. Co., 123 N. Y. 91; Goldbluff M. & L. Corp. v. Whitlock, 75 Conn. 669; Matter of G. L. Co., 63 N. J. L. 168.) The provision in the certificate in question is not such a limitation upon the powers of the corporation, its directors and stockholders as is contemplated or authorized by subdivision 2 of section 10 of the General Corporation Law. (People ex rel. Tiffany v. Campbell, 144 N. Y. 166; Riley v. Penn. Co., 32 Penn. St. 579; People v. Ahearn, 196 N. Y. 221; Blaschko v. Wurster, 156 N. Y. 437; McDowell v. Sheehan, 129 N. Y. 200; People ex rel. Wood v. Lacombe, 99 N. Y. 43; People ex rel. Jackson v. Potter, 47 N. Y. 375; People ex rel. McNeile v. Glynn, 128 App. Div. 257.)</p> <p>Paragraph Ciseventh” of the certificate of incorporation is a legal and valid limitation of the powers of the stockholders and binding upon all parties. (Katz v. H. & H. Mfg. Co., 109 App. Div. 49; 183 N. Y. 518; Lyman v. State Bank, 81 App. Div. 361; 119 N. Y. 577; Matter of R. T. Ferry Co., 15 App. Div. 530; People ex rel. Barney v. Whalen, 119 App. Div. 149; Bond v. A. T. C. Co., 131 App. Div. 671; People ex rel. Manice v. Powell, 201 N. Y. 194; State ex rel. Frank v. Stuanger, 190 Mo. 561; Conde v. City of Schenectady, 164 N. Y. 258; Elger v. Boyle, 69 Misc. Rep. 213.)</p>

Cross-appeals from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 12, 1911, modifying the findings of the court made after trial at Special Term, but affirming a judgment based thereon in favor of plaintiff and defendants Francisco L. Farrell and Adelaide L. L. Farrell. The nature of the action and the facts, so far as material, are stated in the opinion.

<p>Highways — towns — negligence — a town and. its highway commissioners are not liable for injuries occurring on a road being improved or graded by the state, until after it has been accepted by the state.</p> <p>1. Under the statute (L. 1898, ch. 115, § 12, now § 134 of the Highway Law; Cons. Laws, ch. 25) a highway constructed or improved by the state shall not be turned over to the supervision of the local authorities until after the state engineer has accepted the same and notified the board of supervisors that his duties in regard thereto have been finished, and, consequently, a town and its highway commissioners do not resume their jurisdiction or reassume their liability as to a highway and approaches which were being built or graded by the state until after acceptance thereof by the state.</p> <p>2. The plaintiff sustained injuries by being thrown from a carriage caused, as alleged, by reason of the defective condition of a highway of the defendant town. The place where the accident occurred was an approach to a highway and, with the highway, was being improved by contractors employed by the state who are hable to the state, under the contract, for any failure in the performance of the work and for any negligence or default resulting in actionable injuries to third persons. The plaintiff brought this action against both the town and the contractors. It appears that the work was not completed and had not been accepted by the state or turned over to the town by the state engineer at the time of the injury to plaintiff. A motion to dismiss the complaint as to the contractors was granted, and the trial proceeded to iudgment against the town. Held, that the complaint discloses a state of facts which absolves the defendant town from liability, and that the refusal of the trial court to dismiss the complaint constitutes error for which the judgment should be reversed.</p> <p>3. The trial court was requested to charge: “ that if the contract for the construction of the road, including the approach where the accident occurred, had not been fully completed and the road accepted by the proper State authorities having the power to do so, then the defendant, the Town of North Salem, is not liable for the accident alleged to have occurred,” and also, “that if the State Road had not been accepted, the Town of North Salem and the Commissioner of Highways had no duty to perform as to its maintenance and care.” Held, that both of these requests should have been charged, and the exceptions taken to the refusals are fatal to the judgment.</p>

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered December 30, 1909, which unanimously affirmed a judgment of Special Term enjoining and restraining the defendants from using the name “.Improved Benevolent and Protective Order of Elks of the World” or any similar name and from adopting and using badges, buttons and colors similar to those in use by the plaintiff.

The action was brought to recover the amount of an insurance policy issued by the defendant on the life of the plaintiffs’ testator and the contest is between plaintiffs and the residuary legatees of the testator’s wife, Corrie J. Bradshaw. No question is made by the defendant that it is liable to pay the amount of the policy to one of the two sets of claimants.

The nature of the action and the facts, so far as material, are.stated in the opinipn. The trial justice erred in excluding proof by the defendants’ auctioneer’s sales book that they knocked down the stock at the auction sale, not on their own behalf, but only as agents for the seller.

The nature of the action and the facts, so far as material, are stated in the opinion. The respondent did not comply and has not complied with the covenant, nor has the respondent shown whether the Title (Guarantee and Trust Company would approve and insure the title. (Schlesirger v. Burland, 42 Misc. Rep. 209; C. M. O. Co. v. Brin, 66 Misc. Rep. 286; Moore v. Williams, 115 N. Y. 598; Maupin on Marketable Titles, 710; Scudder v. Watt, 98 App.

The facts, so far as material, are stated in the opinion. As February 25, 1912, was a Sunday, the City Magistrates’ Court, on relator’s plea of not guilty, was without power to try, convict and commit her on that day. (People ex rel. Donohue v. Walton, 35 Misc. Rep. 320; Kraft v. De Verneuil, 105 App. Div. 43.) In Hew York city the power of the magistrates to hold court upon Sundays exists by express legislative enactment.

<p>(1) Jurisdiction—Magistrates’ Court—Sunday.</p> <p>Magistrates may exercise jurisdiction on Sunday where it is necessary to preserve the peace (Judiciary Law, sec. 5; Cons. Laws, eh. 30). Under the provisions of the Inferior Criminal Courts Act (L. 1910, ch. 659, sec. 71) there is conferred upon the Magistrates’ Courts of the city of New York the same general jurisdiction for their sittings on Sundays which they have the right to exercise on other days.</p> <p>(2) Same—Disorderly conduct.</p> <p>Where a person was found guilty of disorderly conduct which, in the opinion of the magistrate, tended to a breach of the peace, the offense was not a crime in the strict sense of that term, as used in the Code of Criminal Procedure, but an offense against a police regulation which the Magistrates’ Court had the power to dispose of summarily on Sundays as on other days of the week. The limitation in section 5 of the Judiciary Act, restricting the Sunday jurisdiction of magistrates to the arrest, committal or discharge of a person charged with an offense “in a criminal case” does not apply, because this is not a “ criminal case ” within the purview of that statute.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. Appellant’s vault had existed for a sufficient numher of years to raise the presumption that it was originally constructed with the assent of the public authorities. The separate defense pleads no facts that tend to rebut this presumption. (Deshong v. City of New York, 176 N. Y. 483; Babbage v. Powers, 130 N. Y. 281; People ex rel. Ziegler v. Collis, 17 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff was grossly negligent in releasing his brake, and so' relinquishing control,of his bicycle, when he was still on a steep descent, about eighteen feet from the foot of the grade, and was guilty of contributory negligence as matter of law. (Coleman v. N. Y. C. R. R. Co., 98 App. Div. 349; Havens v. Erie Ry.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered January T, 1911, 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. It was error to submit this case to the jury as one under the Employers’ Liability Act, because no cause of action was proven for which the act affords a remedy.

<p>Trial — Municipal Court Act (L. 1902, ch. 580)—effect of failure of defendant, in action in Municipal Court, to move for non-suit or a dismissal of the action.</p> <p>Section 240 of the Municipal Court Act (L. 1902, ch. 580) provides: “ On the trial of all causes in the municipal court, the mode of conducting the trial, the rules of evidence, the examination and the swearing of the jury, shall be the same as prevail in courts of record.” Sections 248 and 249 of that act permit motions for a non-suit and for a dismissal on the merits; hence a defendant in an action in that court by failing to move for a nonsuit or a dismissal of the action, concedes that issues of fact were created by the evidence, and precludes himself from, asking the appellate courts to determine that a judgment of the trial court was wholly without support in the evidence.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. Before plaintiff could rescind contract he was obliged to offer and tender performance. (Higgins v. Eagleton, 155 N. Y. 474; Lighthall v. McGuire, 20 App. Div. 248; Tonge v. Newell, 16 App.

The plaintiff by the terms of its contract expressly covenanted that it would not file any lien against the premises for work or materials furnished under or by virtue of the contract, and consequently was not entitled either to a lien or a judgment in an action brought to foreclose a lien. (Mowbrey v. Levy, 85 App. Div. 68; D. S. P. Co. v. Clark, 87 App. Div. 459; Thompson-Starrett Co. v. B. H. R. Co., 3 App.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 27, 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 erred in refusing to allow proof offered by-defendant to refute material portions of the testimony of plaintiff.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered November 24, 1911, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action to obtain possession of a certain tract of forest land and to restrain the defendant from cutting or removing timber therefrom.</p>

The award was for $1,000, whereas $221,392.57 was claimed as damages for the appropriation of certain lands for canal purposes.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 3, 1910, 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 defendants, his employers.</p>

<p>Statutes — practical construction.</p> <p>The practical construction of a statute by those for whom the law was enacted or by public officers whose duty it is to enforce it, acquiesced in by all for a long period of time, is of great importance • in its interpretation in a case of serious ambiguity.</p>

<p>Appeal from a judgment entered July 2T, 1911, upon an order of the Appellate Division of the Supreme Court in the first judicial department, which reversed a judgment entered upon a decision of the court on trial at Special Term and directed entry of judgment in accordance with the opinion of the court in an action for the construction of the wills of Hugh Smith and Andrew J. "Smith, deceased.</p>

The plaintiff brings the action to recover from the defendant a sum unpaid, as plaintiff alleges, upon the issuance to the defendant by the bankrupt of one thousand shares of its capital stock. The complaint alleges: The bankrupt corporation was organized under the laws of the state of North Dakota. Its certificate of incorporation provided that its capital stock should consist of two million shares of common stock of the par value of $5 each.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered November 17, 1911, 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 personal injuries alleged to have been sustained by plaintiff through the negligence of defendant.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered October 23, 1911, 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.</p>

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 6, 1910, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court in an action to recover on an alleged contract for services.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered January 20, 1912, which affirmed, on certiorari, the proceedings of the defendant in assessing franchise taxes on the relator for the years ending October 31, 1907, and 1908.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered February 6, 1911, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of defendant, his employer.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 14,1911, which modified and affirmed as modified a decree of the Ulster County Surrogate’s Court surcharging the accounts of the executor herein.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered November 6, 1911, which reversed an interlocutory judgment of Special Term overruling a demurrer to the complaint and sustained such demurrer in an action upon a covenant of warranty. The following question was certified: “Does the complaint state facts sufficient to constitute a cause of action ? ”

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 20, 1910, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action to have canceled and set aside, as a cloud upon its title, a tax deed executed and delivered by the state comptroller to the defendant.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 1, 1910, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover on a policy of accident insurance.</p>

<p>Appeal from a judgment of the Appellate Division of the" Supreme Court in the first judicial department, entered June 3, 1911, in favor of defendant, upon the submission of a controversy, under section .1279 of the Code of Civil Procedure.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 3,1911, which sustained plaintiff’s exceptions, ordered to be heard in the first instance by the Appellate Division, and granted a motion for a new trial in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of defendant, his employer. The trial court had directed a verdict for defendant.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 12,1910, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for personal injuries alleged to have been sustained through the negligence of defendant.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 3, 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 cancel a certain contract of guaranty.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 4, 1911, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for services alleged to have been rendered.</p>