Volume 206 — New York Reports

The nature of the action and the facts, so far as material, are stated in the opinion. Section 301 of the Tax Law does not authorize dismissal of this action on the ground that the defendant corporation is unable for want of property to pay the tax, for the undisputed facts show that it has property, is a going concern, and is capable of paying indebtedness in whole or in part.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered April 19,' 1912, which affirmed an order of Special Term denying a motion by defendants for judgment in their favor on the pleadings. The nature of the action, the facts, so far as material, and the questions certified are stated in the opinion.

<p>Motor vehicles — negligence — evidence — action for injuries resulting from being struck by an automobile.</p> <p>Evidence that a defendant, in an action for negligence, is irtsured in a casualty company is incompetent; and it is reversible error in an action to recover for injuries to a plaintiff, who was run into by an automobile, to admit testimony that the defendant stated, in a conversation after the accident, that he was insured against such accidents.</p>

The city of New York entered into a contract with F. T. Nesbit & Company, a corporation, to erect an addition to a municipal building in the borough of Manhattan, and such company sublet a part of the contract to the American Structural Steel Company. The steel company entered upon the performance of its contract, but before the same was fully completed, abandoned it.

The facts, so far as material, are stated in the opinion. Chapter 423, Laws of 1903, as amended, imposed upon the hoard of assessors a judicial duty, i. e., to determine relators’ claim upon the evidence, and the action of a majority of said board in dismissing relators’ said claim was reviewahle by the Appellate Division of the Supreme Court. (People ex rel.

The facts, so far as material, are stated in the opinion. The purchaser at the comptroller’s tax „ sale is not a necessary party. (Matter of Jones, 18 Hun, 327; Clementi v. Jackson, 92 N. Y. 591; People ex rel. Nat. P. Bank v. Metz, 141 App. Div. 600.) The comptroller is without power to cancel the alleged tax deed. (Const. of N.Y. art. 7, § 6; People ex rel. Suydam v. Morgan, 45 App. Div. 19; Meigs v. Roberts, 162 N. Y. 337; Shea v. Campbell, 71 Misc. Rep. 222.)

<p>(1.) Habeas Corpus—Writ granted on petition of prisoner held in CUSTODY UNDER JUDGMENT OF CONVICTION.</p> <p>The summary remedy of a writ of habeas corpus cannot perform the functions of an appeal from a judgment of conviction. The court, before which a prisoner is brought under the writ, will inquire into the question of jurisdiction and if it appears that the power existed to pronounce the judgment, the writ must be dismissed. The only inquiry is whether the magistrate had authority to pronounce a judgment of imprisonment for the cause assigned and if this is shown, the statute forbids the judge to review the decision of such magistrate.</p> <p>(2.) Same—Such writ does not authorize review of decision of committing magistrate—Jurisdiction only question to determine.</p> <p>Where the record produced on the hearing on the writ showed that' a prisoner not charged with a crime punishable by death had withdrawn a plea of not guilty and pleaded guilty, that was as effective as if there had been a conviction by the verdict of a jury, and the court was not concerned with question® relating to the regularity of the proceedings or to the sufficiency of the facts to establish his guilt or with the severity of the sentence, but only with the question of jurisdiction; that is, the power of the tribunal before which the prisoner was arraigned to sentence him; nor is the application of this rule affected by the fact that the prisoner when arraigned made statements which tended to show that the crime charged and confessed to was not made out. The examination before sentence bore not upon his guilt, but upon the severity of the judgment to be rendered and the trial judge had a right to doubt his statements.</p> <p>(3.) Same—Appeal by People from final order—Code Civ. Pro., §-2058.</p> <p>The first sentence of section 2058 of the Code of Civil Procedure gives the People the unqualified right to appeal from a final order discharging the prisoner. The succeeding sentence is permissive and was intended to authorize an appeal before bail is given, where the discharge, instead of being absolute, is conditional, and to provide that in such case an appeal by the People should not stay the discharge of the prisoner upon giving bail.</p> <p>See Notes 15-151, 23-55.</p>

The assignor, Girard N. Whitney, is individually liable for the full amount of appellant’s judgments, with interest thereon to the date of payment.

Appeals by the defendants Giusto, Cona, Filepo De Marco and Cali from judgment of the Supreme Court, rendered December 4 and 5, 1911, at a Trial Term for the county of Westchester, upon verdicts convicting them of murder in the first degree. Appeal by the defendant Salvatore De Marco from a judgment of the same court, rendered December 19, 1911, upon a verdict convicting him of murder in the first degree. The facts, so far as material, are stated in the opinion.

<p>Crimes — defrauding by false weights and measures—when intent to defraud any particular person need not be averred or proved — indictment — sufficiency of averments charging such crime.</p> <p>1. An information which, contains an averment accusing a defendant of the crime “of defrauding by false weights and measures in violation of section 3411 of the Penal Law,” is a sufficient accusation of intent to defraud, since subdivision 5 of section 3. of that law provides that “where an intent to defraud constitutes a part of á crime, it is not necessary to aver or prove an intent to defraud any particular person.”</p> <p>3. The offense created by this section relates to a single misdemeanor and it may be committed either: 1. By using a false weight, measure or other apparatus, with knowledge that the same is false. 3. By knowingly delivering less than the quantity represented. The averments of the information sufficiently charge that misdemeanor and no other.</p>

The nature of the action and the facts, so far as mate.rial, are stated in the opinion.. The court erred in refusing to submit to the jury the question of plaintiff’s contributory negligence in riding upon the running board of the car, and in charging as a matter of law that the plaintiff was not negligent in so doing. (Gallagher v. Newman, 190 N. Y. 444; McDonald v. M. S. R. Co., 164 N. Y. 607; Wood v. B. H. R. Co., 5 App.

. The nature of the action and the facts, so far as material, are stated in the opinion. No cause of action was proved, as an accidental fire and not the breach of contract was the proximate cause of the. injury. (McRae v. Hill, 126 Ill. App. 349: Fent v. T. P. & W. R. W. Co., 59 Ill. 349; R. L. Co. v. S. & P. Press Co., 135 N. Y. 209; Passinger v. Thorburn, 34 N. Y. 634; Trapp v. McClellan, 68 App. Div. 362; Pollett v. Long, 56 N. Y. 200; M. & St. P. Ry.

The decree had been entered upon a prior order of the said Appellate Division reversing a former decree of said Surrogate’s Court admitting the said will to probate and construing as valid the provisions thereof. ■ The facts, so far as material,' are stated in the opinion. The bequests to John Turner, George Turner and William Turner are valid, and sufficiently definite to indicate what the testatrix meant.

McCormick, deceased. The facts, so far as material, are stated in the opinion. The.appellant employs missionaries in carrying on its work, and is in every respect a missionary society. (Matter of Mergantime, 129 App. Div. 367.) The order of the surrogate herein assessing the transfer tax upon' the legacy to the American Baptist Publication Society was correct and proper. (Matter of Moore, 90 Hun, 162; Matter of White, 103 N. Y. Supp. 688.)

<p>Assault and battery — when owner, or occupant, of premises may use reasonable force to eject disorderly person therefrom — evidence of intent to use reasonable force only — erroneous admission of evidence of good character of plaintiff.</p> <p>1. Where a domestic employed at a hotel, who had notified her employer that she intended to leave, became involved in a dispute with her employer about her wages, he had the right to order her from the premises, and if, after having afforded her a reasonable opportunity to leave, and while she was behaving in a disorderly manner, she refused to go, he had the right to use reasonable force to remove her.</p> <p>2. In an action by the servant for assault • and battery, it was error to refuse to allow the employer to testify that he had no intent other than to remove her from the premises as quietly as possible, using only so much force as was necessary. Such evidence was competent both on the right of action and the amount of damages, although not conclusive.</p> <p>3. Evidence of the general habits of a person is incompetent to prove how he acted on a particular occasion. Evidence that plaintiff “never went out nor drank anything” was improperly admitted. {Zucker-v. Whitridge, 205 N. Y. 50, followed.)</p>

This action was brought by plaintiff as a judgment creditor to set aside as fraudulent and void certain transfers made by defendant Charles S. Levy to the defendant Bertha Levy a few days prior to their marriage, and less than a month prior to the docketing of plaintiff’s judgment.

Appeal in each of the above-entitled actions from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered May 20, 1912, which affirmed a judgment in favor of defendants entered upon a decision of the court at Special Term sustaining demurrers to and directing a dismissal of .the complaint.

<p>(1) Mubdeb—By administebing poison.*</p> <p>On the trial of defendant, who was charged with the crime of murder in the first degree, alleged to have been committed by administering poison to his wife, he was found, guilty. Two questions were presented to the jury: First, whether deceased had died from strychnine poisoning; second, whether the defendant had administered the poison with the deliberate intention of causing death. Held, that the evidence to connect the defendant with the commission of the crime was sufficient to point to him as the person who .had administered the poison to the deceased, in case they found her death to have been caused by poisoning.</p> <p>(2) Same—Tbial—Cross-examination.</p> <p>Cross-examination is a weapon with which a defendant defends himself against the prosecution, and he is entitled to use it upon the witnesses to test their truthfulness and capacity. The rule of liberal cross-examination, even to the extent of repetition of that which has been stated upon the direct examination, is a salutary one and is, generally, conducive to the ascertainment of the truth. The danger of its abuse, in going over the same ground again and again, is within the control of the trial court. It is a test of the knowledge, as well as of the veracity, of witnesses.</p> <p>(3) Same—Medical Experts.</p> <p>The medical witnesses differed as to the cause of the death. The principal medical witness called by the People testified that, as the result of tests, which "he described, he had found one one-hundredth of of grain of strychnine in the liver of the deceased. Upon his cross-examination he was asked whether he had given the correct test for ' strychnine. He answered that he had intended to give the correct test, but that he “ may have omitted some detail from the description.” He was then asked to describe the test which he made. The court refused to allow him to do so, saying: ‘rYou may hold him to ' his direct examination and assume that it is correct.” To this ruling the defendant excepted. Held, error; that upon so close and vital an issue, the defendant was entitled to have the witness again describe the chemical operations by which he had" found strychnine. It was a legitimate means of ascertaining the mental capacity of the witness, as well as the ^ exactness of his methods, and the right of cross-examination was unfairly restricted by the court.</p> <p>See Generally Note, vol. 19, p. 132.</p> <p>(4) Same—Erroneous refusal to permit defendant to cross-examine</p> <p>WITNESS FOR PROSECUTION AS TO DETAILS OF TESTS FOR POISON MADE BY HIM:.</p> <p>The hostility of a witness towards a party, against whom he is. called, may be proved by any competent evidence. It may be shown by cross-examination of the witness, or witnesses may be called who can swear to fact showing it. There is no reason for holding that the witness must first be examined as to his hostility, and that then, and not till then, witnesses may be called to contradict him; hence, when a witness was called for the defense for the purpose of showing hostility to defendant on the part of two witnesses for the prosecution, it was error for the court to refuse to allow this evidence upon the ground that defendant’s counsel had not questioned such witnesses touching such hostility.</p>

The nature of the.action and the facts, so far as material, are stated in the opinion. The trial court erred in refusing to admit in evidence the transcript of the record in the United States Circuit Court of Appeals and the opinion of that court. (Cahill v. S. M. Ins.

The nature of the action and the facts, so far as material, are stated in the opinion. The fundamental and essential requisite to the right of contribution is that the party seeking contribution has discharged some debt or obligation which the one from whom he seeks contribution was equally bound with him to discharge, and that he has removed a common burden from both of them. (7 Am. & Eng. Ency. of Law, 326; Aspinwall v. Sacchi, 57 N. Y. 335; Lee v. Larkin, 125 App.

<p>Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 16, 1910, which affirmed a judgment of the Monroe County Court affirming a judgment of the Municipal Court of the city of Rochester in favor of defendant entered upon a dismissal of the complaint.</p> <p>The plaintiff is a stock corporation organized under the laws of the state of Pennsylvania, with its principal office at the city of Scranton in that state. According to its charter it was formed “to originate, write, compile, illustrate, edit, publish and sell instruction papers, textbooks, drawing plates, periodicals, magazines, pamphlets, articles, and letters for the dissemination of literary, technical, educational and other information,” etc. It carries on international correspondence schools in many states, “ giving instruction by correspondence through the mails and otherwise to such persons as may desire the same, in mathematics, physics, the arts and sciences, English and foreign languages and in all subjects constituting a technical, scientific, classical or academic education * * It has agencies in this and other states to solicit persons to contract with it “ for such correspondence instruction.” For many years it has maintained in this state a system of organized canvassing, and now has five district and thirty division offices here. Each district office is in charge of a district superintendent who has under him a corps of plaintiff’s representatives whose duties are to seek out persons desiring instruction and to induce them to subscribe therefor. The subscription papers are addressed to the plaintiff at Scranton and are delivered with the initial payments by the solicitor to his division superintendent, who forwards the same to the plaintiff at Scranton, and if it is accepted the plaintiff enrolls the subscriber as a student in the ' course selected by him and sends him by mail from Scranton a counterpart of the subscription paper and a certificate of enrollment, but “if it rejects the same it returns to him the amount so paid. ” Instruction papers with directions how to commence and pursue his studies are sent to the student by mail from Scranton. Such bound volumes and outfit as his contract calls for are lent him by the plaintiff, the delivery being- made either direct from Scranton or through a division office in this state. The student sends his papers by mail to the plaintiff at Scranton, and after they are, corrected they are returned to him through the mail. All initial payments are depos-' ited by the division superintendent in his own name in some bank in the city where his office is located, and subsequent installments are collected by him and deposited in the same way. All sums paid are ultimately turned over to the plaintiff by the checks of the division superintendent. The plaintiff owns no real property in this state, bu„t pays rent and office expenses, including salaries, wages, commissions and all other liabilities incurred by it within this state, by check direct from its Scranton office. The division offices are under the supervision of the district superintendent, and he “ has the power to and does direct, regulate and superintend the management and conduct thereof and employ and discharge the division superintendent in charge thereof. Each division superintendent employs and discharges all other representatives of plaintiff in his division subject to the district superintendent’s approval. * * *. The plaintiff gives to its students in this State cash commissions and premiums in consideration of their procurement of new subscriptions to it.” It sells textbooks, drawing and other outfits, instruments, supplies and various publications to purchasers in this state-and elsewhere. Drawing and answer paper suitable for use by students in their respective courses is purchased by plaintiff’s district and division superintendents in this state and sold here. Every division superintendent and every representative in this state is required by plaintiff to be qualified to give instruction in mathematics to its students, and assistance in mathematics is given by them in such division offices to such students as desire the same. “A tutor is employed by plaintiff who gives such assistance in mathematics at the Rochester division office on Tuesday and Thursday evenings of each week from seven to nine o’clock. He is paid therefor direct from Scranton. Except as aforesaid the school of plaintiff is located at Scranton, Pa., and no branch is located in this State. Except as aforesaid the teachers and superintendents in such schools reside and perform their duties at Scranton as aforesaid and do not perform any such duties in this State. There are now more than three hundred students enrolled in the Rochester division ” where the defendant subscribed. The plaintiff’s division superintendent at Rochester has a stenographer to assist him who is paid by him, but the amount is repaid "by plaintiff as an item in his expense allowance. “ On the glass door of the Rochester division office appears the words ‘ The International Correspondence Schools of Scranton, Pa. Enrollment Office.’ There is a board sign above the entrance to such office which reads Local Office International Correspondence Schools of Scranton, Pa. International Textbook Co., Proprietors.’ ” Plaintiff does all its business at Scranton aforesaid unless the foregoing facts establish that it is doing business in this State.</p> <p>The defendant resides at the city of Rochester in this state, and on the 2d of August, 1906, at that place he subscribed for a scholarship in the plaintiff’s course of correspondence instruction in “ Complete Steam Engineering.” The subscription paper was forwarded by the division superintendent to the Scranton office, where it was accepted on the sixth of August and á counterpart of the contract sent to the defendant by mail. He paid $5.00 down to one White, the' solicitor and representative, who gave him a receipt for that amount “ on account of scholarship as per written contract. ” The receipt was on a printed form furnished by the plaintiff and was signed “International Textbook Company, Proprietors of the International Correspondence Schools, Elmer H. La Wall, Treasurer, by J. A. White, representative,” all of which was printed except the signature of White. According to the contract embodied in the subscription paper the defendant was to pay $5.00 each month until the sum of $15.20 in all was paid. On August 6, 1906, he paid $5.00 more to the division superintendent to apply on the price of such scholarship. By the terms of the contract $5.00 became due and payable on October 8th, 1906, and that amount was paid to said superintendent on December 5th, 1906. The further sum of $5.00 became due and payable on November 8th, 1906, but it was not paid and no further payment having been made by the defendant the plaintiff elected to treat the entire balance as due and payable as permitted by the contract. The defendant became twenty-one years of age on the 20th of August, 1906, although in the subscription paper signed by him on the second day of that month his age is stated as twenty-one. After default in payment, upon demand of the plaintiff, the defendant- returned the volumes loaned to him under the contract but did not pay fifteen cents for the cost of transportation as he had agreed therein. The plaintiff paid that sum, received the books and now has them in its possession. It does not appear that the defendant received any instruction or derived any benefit from the contract after he became of age.</p> <p>On 4th of March, 1908, the plaintiff commenced this action against the defendant in the Municipal Court of the city of Bochester to recover a balance of $60.35 alleged to be due under the contract. The defendant in his answer pleaded infancy, ultra vires and noncompliance by plaintiff with sections 15 and 16 of the General Corporation Law and section 181 of the Tax Law. Upon the trial no evidence was given but the facts were stipulated substantially as stated, although in greater detail. Judgment was rendered by the Municipal Court in favor of the defendant dismissing the complaint, and upon appeal to the County Court of Monroe county the judgment was affirmed. Upon further appeal the judgment of the County Court was in turn affirmed by the Appellate Division, one of the justices dissenting and, leave having being duly given, the plaintiff appealed to this court.</p> <p>The defense of infancy cannot prevail, since defendant’s capacity to contract depends upon the laws of Pennsylvania, where the contract was made. Judicial notice thereof will not be taken, nor can they be assumed to be the same as ours. Defendant was bound to allege that this defense was good by the law of Pennsylvania. He made no such averment. (Union Nat. Bank v. Chapman, 169 N. Y. 538; Thompson v. Ketcham, 8 Johns. 189; Cutler v. Wright, 22 N. Y. 472; Moore v. Coler, 106 App. Div. 331.) The defense of infancy cannot prevail since defendant has ratified the contract. (Hodges v. Hunt, 22 Barb. 150; Taft v. Sergeant, 18 Barb. 320; Conklin v. Field, 37 How. Pr. 455; Henry v. Root, 33 N. Y. 526; Beardsley v. Hotchkiss, 96 N. Y. 201; Merchants’ Ins. Co. v. Grant, 2 Edw. Ch. 544; Eagan v. Scully, 29 App. Div. 617; 173 N. Y. 581; Everson v. Carpenter, 17 Wend. 419, 421; Aldrich v. Funk, 48 Hun, 367.) The contract was for a necessary. (Gay v. Ballou, 4 Wend. 403; Gray v. Sands, 66 App. Div. 572; Murphy v. Holmes, 87 App. Div. 366; Gladding v. Follett, 2 Dem. 58; 30 Hun, 219; 95 N. Y. 652; Goodman v. Alexander, 165 N. Y. 289; Rice v. Butler, 25 App. Div, 388; 160 N. Y. 578; Ryan v. Boltz, 16 J. &S. 152; Atchison v. Bruff, 50 Barb. 381.)</p> <p>Appellant cannot recover because respondent was an infant when contract was made, and contract was not ratified or made valid in any way by respondent after he became twenty-one years of age. (Parsons v. Teller, 188 N. Y. 326; R. T. L. Co. v. Sanford, 24 S. W. Rep. 587; Eagan v. Scully, 29 App. Div. 617; Green v. Green, 7 Hun, 494; O’Rourke v. Hall, 38 App. Div. 534; Foley v. M. L. Ins. Co., 64 Hun, 69; Walsh v. Powers, 43 N. Y. 27; Green v. Green, 69 N. Y. 553.) The contract was made in the state of New York. (Register Co. v. Griswold, 143 App. Div. 807.) In any event, the contract in question was to be performed in the state of New York, and the place of performance governs as to the law applicable to the contract. (2 Kent’s Com. 460; Jewell v. Wright, 30 N. Y. 264; Jacks v. Nichols, 5 N. Y. 178; Dickinson v. Edwards, 77 N. Y. 587.) It is stated that the education contracted for is a necessary. If so, it had to be pleaded and proved as such, and that the infant had no parents' or guardian, or if he had they were unable to discharge their obligation in that regard. Appellant failed to do this and the point is not available to it. (Gray v. Sands, 66 App. Div. 572; Murphy v. Holmes, 87 App. Div. 366.)</p>

<p>Appeal from a judgment of the Court of General Sessions of the Peace in the county of Hew York, rendered January 26, 1912, upon a verdict convicting the defendant of'the crime of murder in the first degree.</p> <p>The facts, so far as material, are stated in the opinion.</p>

On and after February 1, 1898, a corporation known as the Tarrytown, White Plains and Mamaroneck Railway Company owned and operated a line of street railroad extending from a point westerly thereof into the village of White Plains with various branches.

The nature of the action and the facts, so far as material, are stated in the opinion. The Long Island City and Greater New York charters impose upon defendant the duty to see that all proper measures are taken to preserve the purity of. the water for the use of the inhabitants for pay, and of keeping it free from pollution. (F. Ins.

Oeoss-appeals from an order of the Appellate Division of the Supreme Court in the second judicial department, entered September 19, 1912, which modified and as modified affirmed as matter of law and not in the exercise of discretion, an order of Special Term providing that a peremptory writ of mandamus issue directing the defendants, composing the board of elections of Putnam county, to disregard as unconstitutional and void certain provisions of the Election Law.

Cross-appeals from an order of the Appellate Division of the Supreme Court in the second judicial department, entered September 19, 1912, which reversed an order of Special Term denying a motion for a peremptory writ of mandamus to compel defendants, composing the board of elections of the city of New York, to disregard as unconstitutional and void certain provisions of the Election Law. This proceeding cannot be maintained.

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

Cross-appeals from an order of the Appellate Division of the Supreme. Court in the third judicial department, entered March 26, 1912, which affirmed an order of Special Term reducing a special franchise tax assessment upon property of the relator for the year 1900. The facts, so far as material, are stated in the opinion.

of the Appellate Division of the Supreme Court in the third judicial department, entered March 26, 1912, which affirmed an order of Special Term reducing a special franchise tax assessment upon property of the relator for the year 1908. The facts, so far as material, are stated in the opinion. The referee and the courts below were clearly right in holding that the southerly -half of the Harlem bridge was erroneously included in the assessment.

order'of the Appellate Division of the Supreme Court in the first judicial department, entered March 8, 1912, which reversed an order of the New York County Surrogate’s Court denying the petition of the respondent herein for the issue to it of letters testamentary as one of the executors named in the will of Herman Bergdorf, deceased. The facts, so far as material, are stated in the opinion.

December 29, 1911, which affirmed an order of.Special Term confirming the report of commissioners in condemnation proceedings. The facts, so far as material, are stated in the opinion. If the question whether the appellant owns any riparian rights was properly before the commissioners, they erred in their finding that it has none as appears by the undisputed facts, found fully by the commissioners.

The nature of the action and the facts, so far as material, are stated in the opinion. The cause of action coming within the statutes of the state of New York, plaintiff was entitled to the relief prayed for in the complaint. (Stokes v. Stokes, 198 N. Y. 301; Code Civ.

The nature of the action and the facts, so far as material, are stated in the dissenting opinion. Plaintiff assumed an obvious risk. (Dillon v. Nat. C. T. Co., 181 N. Y. 215; Knisley v. Pratt, 148 N. Y. 372; Millerick v. Wing, 133 App. Div. 453; Buckley v. G. P. & R. Mfg. Co., 113 N. Y. 540; Toye v. U. D. B. Co., 141 App.

The facts shown by the pleadings, so far as material, are stated in the opinion. The decision upon the abandoned demurrer is not conclusive in this case as to the sufficiency of the complaint. (Brown v. Saratoga R. R. Co., 18 N. Y. 495; McCullough v. Pence, 85 Hun, 271; F. C. G. & El. Co. v. H. R. Tel. Co., 130 App.

Cross-appeals from an order of the Appellate Division of the Supreme Court in the third judicial department, entered December 14, 1911, which affirmed in part and reversed in part an interlocutory judgment sustaining a demurrer to an indictment charging a violation of section 297 of the Penal Law.

The nature of the action and the facts, so far as material, are stated in the opinion. Plaintiff’s laches are fatal. (Wiswall v. McGowan, 2 Barb. 270; Babcock v. Eurich, 64 How.

The facts, so far as material, are stated in the opinion. The state as a general depositor became divested of any priority attaching to it as a sovereign authority and must share equally in. the assets of the insolvent bank with other creditors of that class. (Scammon v. Kimball, 92 U. S. 362; Ætna Bank v. Fourth Nat.

<p>Appeal, pursuant to section 1336 of the Code of Civil Procedure, from, a final judgment, entered July 2, 1912, after the unanimous affirmance by the Appellate Division of the- Supreme Court in the first judicial department of an interlocutory judgment of Special Term granted in favor of plaintiff upon its motion for judgment in its favor upon the pleadings.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>Under the Negotiable Instruments Law an accommodation maker of a promissory note is primarily liable to a holder for value irrespective of the holder’s knowledge of the accommodation character of the paper; and such maker can he compelled to liquidate his primary liability. (Clute v. Warner, 8 App. Div. 40; O’Connor v. Brandt, 12 App. Div. 596; Nat. C. Bank v. Toplitz, 81 App. Div. 593; Cellers v. Meachem, 49 Oreg. 186; Vanderford v. F., etc., Bank, 105 Md. 164; Wolstenholme v. Smith, 34 Utah, 300; B. E., etc., Co. v. Heyburn, 56 Wash. 628.) In the case of a note held by an insolvent bank in the hands of the superintendent of banks, if the maker is solvent and can be compelled to pay, the indorser has no right to compel a setoff of his deposit in the bank; and since the adoption of the Negotiable Instruments. Law this is as true of a note made for accommodation as of ordinary business paper. (Matter of M. D. Bank, 1 Paige, 585; Borough Bank of Brooklyn v. Mulqueen, 70 Misc. Rep. 137; New Farmers’ Bank v. Young, 100 Ky. 683.) The allowance of an offset to the indorser would destroy a property right which is one of the bank’s assets, namely, the right to recover from the makers upon their primary liability. This property right should inure to the benefit of all creditors. (Fera v. Wickham, 135 N. Y. 223; Matter of Hatch, 155 N. Y. 401.)</p> <p>The plaintiff may elect to have its note become due at once, and may offset the claim of the defendant bank on the note against the amount of plaintiff’s deposit in the insolvent hank. (22 Ency. of Law & Pro. 1316; O’Connor v. Brandt, 12 App. Div. 596; Kilby v. F. Nat. Bank, 32 Misc. Rep. 370; Myers v. Davis, 22 N. Y. 489; Fera v. Wickham, 135 N. Y. 223; Richards v. La Tourette, 119 N. Y. 54; Hughitt v. Hayes, 136 N. Y. 163; Matter of Hatch, 155 N. Y. 401; Taylor v. Nichols, 134 App. Div. 783; People v. Canal St. Bank, 6 Misc. Rep. 319.) The setoff cannot be considered a preference. (Scott v. Armstrong, 146 U. S. 499; Hughitt v. Hayes, 136 N. Y. 163.) The question whether section 65 of the Negotiable Instruments Law has made a change in the liability assumed by an accommodation maker of a promissory note can have no bearing in this case. (Nat. Citizens’ Bank v. Toplitz, 178 N. Y. 464; Clute v. Warren, 8 App. Div. 40; Cellers v. Meachem, 49 Oreg. 186; Vanderford v. Farmers’, etc., Bank, 105 Md. 164; Wolstenholme v. Smith, 34 Utah, 300; B. E., etc., Co. v. Heyburn, 56 Wash. 628; Chester v. Dorr, 41 N. Y. 279.)</p>

The facts, so far as material, are stated in the opinion. The Public Officers Law very conclusively establishes that the election commissioners of the city of New York are not state officers. (Cons.

The facts, so far as material, are stated in the opinion. The order is appeal-able. (P. N. Bank v. Bayne, 140 N. Y. 328; J. M. Agency v. Rothschild, 155 N. Y. 255.) The order appealed from, directing the payment by the plaintiffs to the defendants of the sums of money therein specified, is right and should be affirmed. (Haebler v. Myers, 132 N. Y. 366; Goepel v. Robinson Machine Co., 122 App. Div. 26; Holly v. Gibbons, 177 N. Y. 401; Merriam v. W. & P. Lith.

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 first judicial department, entered March 14, 1911, affirming a judgment hi favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The defendant’s recognition and approval of the writings of plaintiff embodying the terms of the agreement constituted an acceptance whereby those writings became the contract between the parties. (Watkins v. Rymill, L. R. [10 Q. B. D.] 178; Smith v. Hughes, L. R. [6 Q. B. D.] 597; Phillip v. Gallant, 62 N. Y. 256; Sellers v. Greer, 172 Ill. 549; Vogel v. Pekoe, 157 Ill. 339; Short v. Kieffer, 142 Ill. 258; Bohn Mfg. Co. v. Sawyer, 169 Mass. 447; Russell v. Allerton, 108 N. Y. 288; Wright v. Reusens, 133 N. Y. 298; Smith v. Malleson, 148 N. Y. 241; Robertson v. Ongley Elec. Co., 146 N. Y. 20.) If the buyer, in an executory contract of sale, refuses to take and pay for the goods when the seller offers to deliver them, the seller may retain the goods for the benefit of the buyer and recover the purchase price. (Williston on Sales, § 562; Dustan v. Andrews, 44 N. Y. 72; Moore v. Potter, 155 N. Y. 481; Ackerman v. Rubens, 167 N. Y. 405; Mason v. Decker, 72 N. Y. 595; Hayden v. Demets, 53 N. Y. 426; Butler Bros. v. Hirzel, 87 App. Div. 462; 181 N. Y. 520; Horst v. Montauk Brewing Co., 118 App. Div. 300; 192 N. Y. 555; Van Brocklen v. Smeallie, 140 N. Y. 70; Cragin v. O’Connell, 50 App. Div. 339; 169 N. Y. 573; Dunlop v. Grote, 2 C. & K. 153.) The buyer’s refusal to take and pay for the goods dispenses with the necessity of delivery or tender of delivery, and readiness and willingness to deliver are enough to support the seller’s right of action. Having refused to pay for the goods when payment was due, and having refused not only to give shipping instructions but to accept the goods, defendant has waived delivery and tender and is liable for the purchase price. (Shaw v. R. L. Ins. Co., 69 N. Y. 286; Nelson v. P. F. P., etc., Co., 55 N. Y. 480; Lawrence v. Miller, 86 N. Y. 131; Paine v. Brown, 37 N. Y. 227; Windmuller v. Pope, 107 N. Y. 674; Scott v. Miller, 114 App. Div. 6; Duryea v. Bonnell, 18 App. Div. 151; Levy v. Glassberg, 92 N. Y. Supp. 50; Howe v. Morre, 14 N. Y. Supp. 236; Wharton & Co. v. Winch, 140 N. Y. 287; Butler Bros. v. Hirzel, 87 App. Div. 462; 181 N. Y. 520.) Even if the contract be construed as not fixing a definite time for performance, or if the parties had waived performance in October, 1907, the action may still be maintained, since defendant was bound to order and pay for the goods within a reasonable time. Whether a reasonable time had elapsed was a question for the jury. (Pope v. T. H. C. & Mfg. Co., 107 N. Y. 61; Lawson v. Hogan, 93 N. Y. 39; Williston on Sales, § 457; Cragin v. O'Connell, 50 App. Div. 339; 169 N. Y. 573; Sanborn v. Benedict, 78 Ill. 309; L. V. Coal Co. v. Curtis, 22 Ill. App. 394; Lewis v. Tipton, 10 Ohio St. 88; Howe v. Woodruff, 21 Wend. 640; Black v. Bachelder, 120 Mass. 171; Wright v. Bank of Metropolis, 110 N. Y. 237.)</p> <p>The promises of the seller to deliver in New York, and of the buyer to receive and pay for the goods there, were mutual, dependent promises, and neither side could sue until he had put the other in default. (Delaware Trust Co. v. Calm, 195 N. Y. 231; 29 Am. & Eng. Ency. of Law [2d ed.], 689; Pope v. T. H., etc., Co., 107 N. Y. 61; Dunham v. Mann, 8 N. Y. 508; Lester v. Jewett, 11 N. Y. 453; Gross v. Ajello, 132 App. Div. 25.) There was no bargain and sale of these goods, because something remained to be done by the seller before title could pass to the buyer. (Anderson v. Reed, 106 N. Y. 333; Lighthouse v. Third Nat. Bank, 162 N. Y. 336; 24 Am. & Eng. Ency. of Law [2d ed.], 1049, 1050, 1054; Benjamin on Sales [7th ed.], 721, 722.) The goods were to be transported by the seller from France to New York and there delivered to the buyer, and as this had not been done an action for the purchase price would not lie. (Gross v. Ajello, 132 App. Div. 25; Evans v. Harris, 19 Barb. 416; Hayden v. Demets, 53 N. Y. 426; Mason v. Decker, 72 N. Y. 595; Westfall v. Peacock, 63 Barb. 209.)</p>

By a contract made on the fourth of February, 1905, the defendant agreed to sell to the plaintiff “ all the premises known as Nos. 165 and 161 East 108th Street in the city of New York,” bounded and described by definite and certain metes and bounds.

<p>Railroads — passengers — New York (city of) — right of railroad company to collect ten cents additional from passengers who pay fare on the train—rights of company not affected by consolidation of suburban municipalities with Greater New York.</p> <p>A steam railroad is authorized upon certain conditions to collect in the first instance ten cents over the regular fare from any passenger who pays fare in the ear except where the passage is wholly within the limits of any incorporated city. (L. 1889, ch. 88, § 1.) When the act was passed Jamaica was outside the limits of the then city of Brooklyn. When such additional fare was collected from plaintiff for passage from Brooklyn to Jamaica both were, as the result of the consolidation, constituent parts of the city of New York. Held, following Braffett v. Brooklyn, Q. C. & S. B. B. Go. (204 N. Y. 440, 447), that the right to charge the additional fare remains unaffected by the creation of the greater city.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. Plaintiff and his grantors until 1890 had title in fee simple to' the premises by virtue of the tax deeds, subject to the occupant’s right to redeem.

The nature of the controversy and the facts, so far as material, are stated in the opinion. The obtaining of a certificate from the superintendent of insurance was a condition precedent to any recovery by the plaintiff.

<p>Contract — master and servant — when implied promise to do certain work for a designated consideration constitutes a valid contract.</p> <p>1. The general rule is that a promise, not under seal, made by one party with none by the other is void.' If, however, there is a sufficient consideration mutual promises are not essential, for the consideration supports the promise although made by one party only.</p> <p>2. A mutual agreement implies an offer and acceptance or a promise for a promise in some form, and where it was mutually agreed that the defendant would pay to the plaintiff a sum named for “ superintendence” of certain work, there was not only an express promise by the defendant to pay, but also an implied promise by the plaintiff to superintend,- which makes a valid contract.</p> <p>3. It is not good pleading to set forth the evidence relied on to establish a fact, and it was enough to allege that the parties “ mutually agreed ” without alleging what each said in making the agreement, or that there was a promise by one party to the' other.</p>

<p>Partition—evidence—erroneous rulings—testimony prohibited by section 839 of Code of Civil Procedure.</p> <p>1. On the trial of an action for partition one of the issues litigated was whether a certain contract, as to the lands involved, made by the predecessors in interest of some of the parties, had been abandoned, or whether it remained in full force. The parties claiming that the terms of the contract had been complied with and that it was still in force sought to show that it had been substantially paid up. This evidence was excluded. Held, error.</p> <p>3. The parties claiming that the contract was not in force were allowed to give evidence tending to show its surrender, which was of the same general character as that previously excluded when offered to show it was in effect. This evidence was given by a party to the action, interested in the event, and related to a conversation, which she heard, between the deceased father of parties opposed to her in interest and predecessors in the title under which she claimed. Held, that the witness was prohibited from giving such testimony by section 839 of the Code of Civil Procedure, even though she did not take part in the conversation.</p>

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

<p>AppEALfrom a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered January 11, 1911, affirming a judgment in fayor of defendants entered upon a dismissal of the complaint by the court at a Trial Term without a jury.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The ruling of the trial court that the contract was consummated in the state of Hew York and was illegal and void is error. (Stone v. P. Y., K. P. & B. Ry., 197 N. Y. 279; Hammond v. I. Ry. Co., 63 Misc. Rep. 437; W. M. M. F. Ins. Co. v. Hilton, 42 App. Div. 52; Stevens v. Hein, 37 App. Div. 542.) There was no evidence in this case that the Atlas Mutual Insurance Company did business in this state nor issued here the policy of insurance on which this suit was brought, and it never transacted business in Hew York state within the meaning of the Insurance Law. (L. 1892, ch. 690, § 9, 29, 30; L. 1893, ch. 725; Penn Collieries Co. v. McKeever, 183 N. Y. 98; People ex rel. Tower Co. v. Wells, 182 N. Y. 553; 98 App. Div. 82; Page & Co. v. Sherwood, 146 App. Div. 618; New York Terra Cotta Co. v. Williams, 102 App. Div. 1; Boston Mutual Fire Ins. Co. v. Hendricks, 41 Misc. Rep. 479; Stone v. Penn Yan, etc., Ry., 197 N. Y. 279; Tallapoosa Lumber Co. v. Holbert, 5 App. Div. 559; Vaughn Machine Co. v. Lighthouse, 64 App. Div. 138.)</p> <p>The alleged contract of insurance was consummated within the state of Hew York and was illegal and void. (Penal Law, §§ 1192, 1199; Swing v. Dayton, 124 App. Div. 58; 196 N. Y. 503; Swing v. Munson, 191 Penn. St. 528; South Bay Co. v. Howey, 113 App. Div. 385; Wood & Selick v. Ball, 190 N. Y. 217; Portland Co. v. Hall & Grant Construction Co., 123 App. Div. 495; Thwing v. Great Western Ins. Co., 111 Mass. 93; Millard v. Brayton, 177 Mass. 533.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. Before an employer can be held liable for an accident that has occurred and which it is claimed would not have happened had the employer made and enforced reasonable rules, it must first be established that the employer is responsible for the accident.

The nature of the controversy and the facts, so far as. material, are stated in the opinion. The submission of the controversy between the parties was proper. (Admiral Realty Co. v. City of New York, 206 N. Y. 110; 76 Misc. Rep. 345.) The stipulated statement of controversy does not state facts constituting a cause of action, presents no actual controversy for judicial determination, and should, therefore, have been dismissed, other than upon the merits.

The nature of the action and the facts, so far as material, are stated in the opinion. A breach of the contract was committed by the defendant in the city of New York and a cause of action arose there by reason of such breach. (Hibernia Nat. Bank v. Lacombe, 84 N. Y. 367; Riddle v. Bank of Montreal, 145 App. Div. 211; Bank of Montreal v. U. S. Banking Co., 129 App.

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

The facts, so far as material on this appeal, may he found in Welch v. Waterbury Co. (144 App. Div. 213), and the same case on a former appeal (136 App. Div. 315). The notice under the Employers Liability Act was sufficient] such notice was duly served on defendant, and its exclusion was error. (Valentino v. Garvin Machine Co., 139 App. Div. 139; Bertolami v. U. E. & C. Co., 198 N. Y. 71; Smith v. Milliken Bros., 200 N. Y. 21; Foster v. Crooker Co., 142 App.

Action No. 1. Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered February 10, 1911, affirming, by a divided court, a judgment in favor of defendant entered upon the report of a referee. This is one of two actions brought by the plaintiff against the defendant, and both were tried before the same referee.

The facts, so far as material, are stated in the opinion. The city of New York is not liable for interest on disbursements taxed pursuant to section 1000 of the charter unless and until it has failed to pay the amount so taxed after •demand for payment filed with the comptroller. (Matter of Edelmuth, 142 App.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered January 20, 1911, affirming a judgment in favor of plaintiff entered upon a decision of the 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>The defendant Dumary, under the terms of his contract of guaranty, is not liable to the plaintiff Catskill National Bank upon the note here in suit. (Coleman v. Beach, 97 N. Y. 545; Griffiths v. Hardenbergh, 41 N. Y. 464; Bank of Montreal v. Recknagel, 109 N. Y. 482; H. C. & C. Co. v. E. C. & C. Co., 113 Fed. Rep. 256; Bishop on Cont. [2d ed.] §§ 371, 372, 380; Wilson v. Troup, 2 Cow. 195; Chitty on Cont. [6th Am. ed.] 89; Strickland v. Maxwell, 2 C. & M. 239.) The guaranty of the defendant Dumary extended to the giving by said Albany Contracting Company of the notes provided for in said contract between said The Eastern Paving Brick Company and said Albany Contracting Company, dated June 15, 1901, but did not extend to their payment. (E. Nat. Bank v. Kaufman, 93 N. Y. 273; People v. Backus, 117 N. Y. 196.) Neither the contract of June 15, 1901, between the Eastern Paving Brick Company and Albany Contracting Company, nor the guaranty thereof of the defendant Dumary was ever assigned, in whole or in part, directly or indirectly, to the plaintiff herein, Catskill National Bank, and said plaintiff is wholly a stranger to said contract. (Gamewell v. Pomeroy, 121 Mass. 207; Levy v. Cohen, 103 App. Div. 195; De Luka v. Goodwin, 142 N. Y. 194; Clokey v. E. & T. H. R. R. Co., 16 App. Div. 304.) The contract of guaranty of the defendant Dumary is not divisible. (Pakas v. Hollingshead, 184 N. Y. 211; Clokey v. E. & T. H. R. R. Co., 16 App. Div. 304.) Under the allegations of the complaint herein plaintiff, Catskill National Bank, cannot successfully invoke the doctrine of equitable subrogation, and subrogation will not support the plaintiff’s claim. (Mansfield v. City of New York, 165 N. Y. 208.)</p> <p>The guaranty “of all the obligations of the foregoing contract” covered and comprehended the note in question, which was defined in and was given under the provisions of said . contract. (Murphy v. Hart, 122 App. Div. 548.) The cancellation of the clause in the contract of June 15, 1901, did not affect the liability of Dunaary under his guaranty. (F. Nat. Bank v. Woolsey, 31 App. Div. 61; D., L. & W. R. R. Co. v. Burkard, 114 N. Y. 197.) The contract and the guaranty are to be construed together as one instrument. (Everson v. Gere, 122 N. Y. 290.) The guaranty was a general guaranty and not a special one, and inured to the benefit of all parties acquiring interest under the contract. (Stillman v. Northrup, 109 N. Y. 473; McLaren v. Watson, 26 Wend. 425; 19 Wend. 557.) This contract of guaranty is to be construed in the same manner as ordinary contracts. (Smith v. Molleson, 148 N. Y. 241; People v. Backus, 117 N. Y. 196; Belloni v. Freeborn, 63 N. Y. 383; Gates v. McKee, 13 N. Y. 231; Krakauer v. Chapman, 16 App. Div. 115; Gamble v. Cuneo, 21 App. Div. 413; Walrath v. Thompson, 4 Hill, 200.) The doctrine of equitable subrogation is applicable to this case in which the plaintiff as holder of this note is entitled to be subrogated to whatever rights the Eastern Paving Brick Company, its indorser and predecessor in title had. (1 Story’s Eq. Juris. [10th ed.] 626, § 633; Morehouse v. B. H. R. R. Co., 185 N. Y. 520; C. T. S. D. & S. Co. v. Haaslocher, 101 App. Div. 415; Cheesebrough v. Millard, 1 Johns. Ch. 408; Barnes v. Mott, 64 N. Y. 397; Besley v. Lawrence, 11 Paige, 581.) This doctrine of equitable subrogation applies to the case of a surety, although the party subrogated has no knowledge of the transaction. (Wagar v. Link, 134 N. Y. 122; Morehouse v. B. H. R. R. Co., 185 N. Y. 520; Vail v. Foster, 4 N. Y. 321; Keller v. Ashford, 133 U. S. 610; Crosby v. Krafts, 5 Hun, 329; Curtis v. Tyler, 9 Paige, 432.) Indorsers of paper are within the rule that gives the creditor the right to enforce any obligations held by the surety for the payment of the debt. (Nat. Ex. Bank v. Silliman, 65 N. Y. 475.) The assignment of the note was effective to transfer the debt, and by the transfer of the debt transferred any collateral held to secure its payment. (Spears v. Mayor, etc., 87 N. Y. 359; Gallagher v. Nichols, 60 N. Y. 438; Bolan v. Crosby, 49 N. Y. 183; Claflin y. Ostrom, 54 N. Y. 581; Rose v. Baker, 13 Barb. 230; Pattison v. Hull, 9 Cow. 747; Bowdoin v. Colman, 6 Duer, 182.) The contract provided that the contract obligation, notwithstanding the issuing of the note, should remain unimpaired, and, as by the transfer of the note the debt itself represented by the contract passed, the plaintiff was entitled to be subrogated to whatever rights for the enforcement of that debt existed in the insolvent, the Eastern Paving Brick Company. (Stillman v. Northrup, 109 N. Y. 473; Craig v. Parkis, 40 N. Y. 181; Barlow v. Myers, 64 N. Y. 44; Lahmers v. Schmidt, 35 Minn. 435; George v. Tate, 102 U. S. 571; F. Nat. Bank v. Woolsey, 31 App. Div. 61; Parmelee v. Dann, 23 Barb. 461.) The Eastern Paving Brick Company being insolvent, and holding the obligation of Dumary as security for the note, could be compelled to enforce that security. To avoid circuity of action the Catskill National Bank may enforce the guaranty. (Putnam v. Lewis, 8 Johns. 389; Burdick v. Green, 15 Johns. 247; Riddle v. Mandeville, 5 Cranch, 322; Curtis v. Allen, 9 Paige, 432; Crosby v. Crafts, 5 Hun, 327; Matter of Sauthoff, 7 Biss. 167; Firestone & Co. v. Agnew, 194 N. Y. 165.)</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 24, 1912, which reversed an order of Special Term denying a motion for counsel fees pendente lite and granted said motion. The following questions were certified: “1. Did the Supreme Court at Special Term have power to award to the plaintiff any sum as counsel fee in this case? “ 2.

The facts, so far as material, are stated in the opinion. The only-limitation on the power of the municipal civil service commission to prescribe regulations for the examination of applicants for appointment in the classified civil service of the city of New York is that such regulation shall not be inconsistent either with the Constitution of this state or the Civil Service Law. (Matter of Ricketts, 111 App.

The facts, so far as material, are stated in the opinion. The order appealed from is appealable to this court. (Matter of Simmons, 203 N. Y. 241.)

The facts, so far as material, are stated in the opinion. The appellant should be indemnified for the depreciation in market value that resulted, during his intestate’s ownership, from the legal establishment of the changes of grade. (People ex rel. C. T. Co. v. Prendergast, 202 N. Y. 188; Matter of Borup, 182 N. Y. 222; People ex rel. Janes v. Stillings, 197 N. Y. 550.) The appellant is not entitled to damages as matter.of law. (People ex rel.

The premises in suit having no frontage upon, and the plaintiff no property in Third avenue, ■ there is no “taking” of the plaintiff’s property, and, therefore, no basis for the award of injunctive relief. (Story v. El. R. R. Co., 90 N. Y. 122; Hughes v. El. R. R. Co., 130 N. Y. 26; Lahr v. El. R. R. Co., 104 N. Y. 268; Kane v. N Y. El.

The nature of the action and the facts, so far as material, are stated in the opinion. Under the facts above stated the contract entered into by the plaintiff with the defendants was one of insurance under which he, the plaintiff, acquired vested rights, viz., that upon the payment of certain sums of money then agreed upon during his lifetime a certain fixed sum should be paid to his beneficiary upon his decease.

<p>(1.) Evidence—Disorderly house.</p> <p>On trial of an indictment for keeping a "disorderly house, in violation of section 1146 of the Penal Law, evidence was received of certain occurrences in the presence of the defendant, at the house in controversy; and of the number and sex of persons who, in the presence of the defendant, from time to time, both day and night, passed through an alleged grocery store, situated in a room next to the street on the first floor of the house, to and from a sitting room or kitchen and a bedroom in the rear thereof. Held, that the evidence was direct and pertinent upon the question as to whether the crime had been committed, and competent.</p> <p>(2.) Same—Penal Law, § 3, sued. 9.</p> <p>Evidence of the common fame or report of a house charged with being a disorderly house is competent under subdivision 9 of section 3 of the Penal Law. (People v. Calabresse, 149 App. Div. 955, overruled.)</p> <p>(3.) Same—Character oe inmates.</p> <p>Testimony relating to the character of the women who frequent such a house is competent and generally adtiiitted by the court for the purpose of showing the reputation and character of the house itself.</p>

<p>Will—validity of bequest to be applied by executors to such, charitable -and benevolent associations as they may select.</p> <p>The will of testator provided: “Second. I give and bequeath to my said executors and trustees, hereinafter named, the sum of fifty thousand dollars to be by them applied in their best judgment and discretion to such charitable and benevolent associations and institutions of learning for the general uses and purposes of such associations and institutions as my said executors may select, and in such sums respectively as they may deem proper.” Held, that these provisions are capable of being enforced by judicial decree and are valid. (Pers. Prop. Law, § 12; Real Prop. Law, § 113; Matter of 87iattuc7t, 193 N. Y. 446, 451, distinguished; Matter of Robinson, 203 N. Y. 380, 382, followed.)</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered May 8, 1912, 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 against the demurring defendant ? ” The nature of the action and the facts, so far as material, are stated in the opinion.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 12, 1912, which affirmed a determination of the Appellate Term affirming a judgment of the Municipal Court of the city of New New York in favor of defendant. The nature of the action and the facts, so far as material, are stated in the opinion.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered March 4-, 1912, which dismissed a writ of certiorari brought to review the action .of the defendant in establishing a boundary line between the city of New Rochelle and the town of Scarsdale.</p>

On March 20, 1909, Samuel Silverstein was the owner of certain real property in the borough of Brooklyn, city of New York, consisting of ten lots. On that day he borrowed of the plaintiffs $18,750, for which he gave his bond with a mortgage on said lots as collateral thereto, which mortgage was duly recorded March 24, 1909.

On the sixth of January, 1908, this action was commenced by the owners of a building known as the Grand Opera House in the city of New T irk, to recover damages from their lessee for the alleged breach by him of certain covenants in the lease. The covenants regarded by the parties as material are as follows: “ 10.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 29, 1911, which reversed an order of Special Term granting a motion by the plaintiffs for judgment in their favor upon the pleadings, and sustained demurrers to the complaint in an action to obtain the appointment of a receiver of the defendant Realty Securities Company, to restrain the paying out of any of its moneys and for a discovery and…

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 14,1911, which confirmed a determination of the defendant denying an application for a revision and readjustment of taxes for the years 1902 and 1903.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered January 15, 1912, which reversed a decree of the Broome County Surrogate’s Court revoking letters of administration theretofore issued on the estate of Charles N. Hinman, deceased.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered May 1, 1912, which reversed a decree of the. Kings County Surrogate’s Court assessing a transfer tax upon the estate of James Jourdan, deceased.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered May 15, 1912, which affirmed an order of Special Term granting an injunction to restrain the defendants from carrying out a contract for the purchase of filters and purifying devices. The following questions were certified: “ 1.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 18, 1910, 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 for the conversion of a check.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 6,1912, which reversed a decree of the Erie County Surrogate’s Court settling the accounts of the executors of Sarah J. Clement, deceased.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered March 25, 1912, which affirmed an order of Special Term directing the appellant herein, an attorney, to pay over certain moneys to the petitioner.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 3, 1912, which affirmed an order of Special Term denying an application for an order prohibiting the defendant board of elections from preparing ballots for a primary election with the emblem of the Citizens’ Union thereon. The following questions were certified: “1.

Appeal, by permission, from.an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 7, 1912, which affirmed an order of Special Term denying a motion that the court pass upon certain requests to find submitted in the above-entitled action. The following questions were certified: “1.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 1, 1912, which affirmed an order of Special Term granting a- motion for a peremptory writ of mandamus to compel the granting of permission to petitioner, a stockholder, to examine the hooks of the American and British Manufacturing Company.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 24, 1912, which affirmed an order of Special Term denying a motion for cancellation of a judgment pursuant to section 150 of the Debtor and Creditor Law.</p>

Appeal, by permission, frota an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 21, 1912, which affirmed an order of Special Term granting a motion for judgment on the pleadings in an action for partition of real property.

<p>Appeal from two orders of the Appellate Division of the Supreme Court in the second judicial department, entered July 25, 1912, the first of which affirmed an order of Special Term denying an application by appellant herein, purchaser at a partition sale, to be relieved from his purchase, and the second of which affirmed an order of Special Term denying his application for the appointment of a referee to take testimony in relation thereto.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered October 23,1912, which affirmed an order of Special Term overruling objections to an independent- certificate of nomination of Gilbert D. B. Hasbrouck for the office of justice of the Supreme Court.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered December 5, 1910, affirming a judgment in favor of defendant entered upon a verdict directed by the court.</p>

<p>Appeal from, a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 30, 1911, affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court at a Trial Term in an action to recover for an alleged abuse of legal proceedings.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered October 7, 1910, 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 in an action to recover back money paid on account of the purchase price of real property and for the expense of examining title.</p>

<p>Appeal from an order of the Appellate Division of tbo Supreme Court in the fourth judicial department, entered July 15, 1910, reversing a judgment in favor of plaintiff entered upon a verdict and granting a new trial in an action to recover for personal injuries alleged to have been sustained through the defendant’s negligence.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered January 19,1911, reversing a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury, in an action of replevin.</p>

<p>Appeal from a judgment of the 'Appellate Division of the Supreme Court in the third judicial department, entered May 19, 1911, affirming a judgment in favor of defendants entered upon a verdict directed by the court in an action to recover for an alleged breach of contract.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 5, 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. rent alleged to be due under a lease.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 5, 1911, affirming a judgment in favor of defendants, respondents, entered upon a decision of the court on trial at Special Term in an action to obtain a judicial construction of the will of John Laden, deceased.</p>

Cross-appeals from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 18, 1911, modifying and affirming as modified a judgment in favor of plaintiff entered upon a verdict directed by the court.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered July 25, 1912, which affirmed an order of Special Term vacating an ex parte order continuing a mechanic’s lien.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February 21, 1911, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term and granting a new trial in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 11, 1910, which reversed a determination of the Appellate Term affirming a judgment of the City Court of the city of New York in favor of plaintiff and granted a new trial in an action to recover interest on a deposit in the defendant bank covering a period during which said bank was in the hands of the state superintendent of banks and of…

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered February 10, 1911, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court in an action to recover for an alleged breach of contract.</p>

<p>Motion for re-argument. (See 206 N. Y. 221.)</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered October 11, 1912, which sustained a writ of certiorari, brought to review a determination of the board of assessors of the city of New York, annulled the determination of such board and remitted the proceeding to them for further action.