Volume 207 — New York Reports

<p>Libel — in action for utterance of words defamatory per se, the plaintiff may recover compensatory damages for mental distress and for physical sufferings resulting from such mental distress — where wife might have recovered such damages her husband can maintain action for loss of her society and services.</p> <p>1. An action to recover for the utterance of defamatory words, not actionable in themselves, cannot be sustained by proof of mental distress and physical pain suffered by the complainant as a result thereof.</p> <p>3. The reasoning upon which this rule is based does not apply to a case where the words are actionable in themselves, and a plaintiff in an action for the utterance of defamatory words actionable per se may recover compensatory damages for mental distress (Van Ingen v. Star Co., 1 App. Div. 429; 157 N. Y. 695, followed; Terwilliger v. Wands, 17 N. Y. 54; Wilson v. Goit, 17 N. Y. 442, explained and distinguished), and may likewise recover for physical suffering brought about by or attending such mental distress. (Mitchell v. Rochester Ry. Co., 151 N. Y. 107, 110; Hack, v. Dady, 134 App. Div. 253, distinguished.)</p> <p>3. In an action brought for the redress of a wrong intentionally, willfully and maliciously committed, as must be assumed to be the case in an action of libel on a demurrer to a complaint alleging these facts, the wrongdoer will be held responsible for the injuries which he has directly caused even though they lie beyond the limit of natural and apprehended results as established in cases where the injury was unintentional.</p> <p>4. Where a wife might have recovered damages for the mental distress and physical sufferings caused by a willful and malicious publication of a libel, her husband may maintain an action for loss of her society and services.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered July 5, 1912, affirming two orders of Special Term.</p> <p>On April 9th, 1909, the state superintendent of banks took possession of the Binghamton Trust Company, which was then financially embarrassed. During the process of liquidation the superintendent, through his representatives, received from the appellant an offer to purchase at the price of $9,000 and certain taxes a parcel of real property located in Binghamton, known as the Standard Food Company property, which then belonged to the trust company. Under date of May 14th, 1912, the representatives of the superintendent wrote a letter to the appellant accepting the offer “subject to the approval of the Supreme Court,” and on June 3rd the superintendent presented to the Supreme Court at Special Term a petition asking the court’s approval. The petition was made upon notice to the trust company, and on the same day it was granted by an order, duly made and entered, authorizing and approving the sale in accordance with the offer and acceptance above referred to. On the next day, June 4th, 1912, the court, of its own motion and without notice to any one, modified its former order by revoking its provisions for a private sale and directing a sale at public auction at a price not less than $10,000. The recitals in the second order disclose that the only reason for the change is that the court had become satisfied that the property would bring a greater price if sold at a competitive sale.</p> <p>The appellant thereafter moved at Special Term, before the same justice, to vacate the second order, and his motion was denied. He thereupon appealed to the Appellate Division from the order of June 4th modifying the first order and also from the order denying his motion to vacate the order of June 4th. The Appellate Division affirmed both of these orders.</p> <p>The offer to purchase made by the appellant Goldsmith, and its acceptance by the superintendent of banks, when approved by the order of the court, formed a contract, vesting in the appellant rights of which he could not be deprived by the court in the absence of fraud, mistake or improper conduct. (Gates v. Smith, 4 Edw. Ch. 702; Edwards v. F. L. Co., 21 Wend. 468; 26 Wend. 541; Matter of City of Buffalo, 78 N. Y. 362; Draper v. Pratt, 43 Misc. Rep. 406; Weston v. C. Nat. Bank, 88 App. Div. 330; Matter of Automatic Chain Co., 64 Misc. Rep. 280; Chester v. Car Mfg. Co., 183 N. Y. 425; Heath v. N. Y. B. L. B. Co., 146 N. Y. 260.)</p> <p>The appellant obtained no rights under the order of June 3, 1912. (Harrigan v. Golden, 41 App. Div. 423; Cheney v. Woodruff, 45 N. Y. 98; Ainslie v. Hicks, 13 App. Div. 388; 153 N. Y. 643; Brown v. Frost, 10 Paige, 247; Astor v. Turner, 11 Paige, 436; Strong v. Dollner, 2 Sandf. 444; Clason v. Corley, 5 Sandf. 447; Mitchell v. Bartlett, 52 Barb. 319.) The court had power to grant the order of June 4, 1912, revoking the order of June 3, 1912, and in the absence of abuse of discretion that order is not reviewable in this court. (Hale v. Clauson, 60 N. Y. 339; Crane v. Stiger, 58 N. Y. 625; Weeks v. Weeks, 106 N. Y. 626.)</p>

<p>(I.) Sunday—Public traffic on—Forbidden—Penal Law, § 2147.</p> <p>The legislature has the authority to enact laws regulating the observance of the Sabbath day and to prevent its desecration, and as to the acts which should be prohibited, as disturbances, or profinations of the Sabbath day, it is the sole judge.</p> <p>(2.) Same—Offering real estate for sale on Sunday is not violation OF STATUTE.</p> <p>The defendant was convicted in the Court of Special Sessions of having violated section 2147 of the Penal Law in that he “ offered certain real estate property for sale on Sunday.” Complainant met and accosted the defendant upon a railroad train and showed him a map of certain lots of land, and complainant asked the price of a lot, and, upon being informed, declined to buy at that time. Section 2147 has for its caption “ Public Traffic on Sunday.” It reads: “All manner of public selling or offering for sale of any property upon Sunday is prohibited,” followed by certain exceptions thereto. On examination of sections 2140-2149 of the Penal Law, held, that the property which must not be sold or offered for sale on Sunday is that which consists in commodities, or articles of merchandise, and, hence, defendant’s conviction was unauthorized.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. A board of supervisors has no power to audit or allow an illegal charge against the county, whether or not there also be legal charges contained in the same claim or bill, and any attempt to audit is void and of no effect and may be attacked directly or collaterally. (People ex rel.

The nature of the action and the facts, so far as material, are stated in the opinion. The reservation and exception contained in the printed notice of sale, and in the affidavit of, the auctioneer, measure all flowage rights to which said forty acres are subject.

The facts, so far as material, are stated in the opinion. The provisions of chapter 255, Laws of 1909, were not mandatory. (People ex rel. Tracy v. Woodruff, 54 App. Div. 1; People ex rel. Underhill v. Saxton, 15 App. Div. 263.) The land hoard acted judicially in determining that the Cayuga Indians’ claim could only be legally adjusted by its rejection, and mandamus will not he. (People ex rel. Harris v. Comrs. of Land Office, 149 N. Y. 26; People ex rel.

2 in this proceeding, namely, Lucia C. Halbert, injured by the change of grade of Main street. The facts, so far as material, are stated in the opinion. There is no statute under which an award for consequential damages, due from the lowering of the tracks of the New York Central railroad on its own right of way can be sustained.

<p>Appeal 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 plaintiff entered upon a verdict.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The contract in question provided for the doing of an illegal act by the defendant company and was, therefore, void, and the illegality being apparent upon the face of the contract, the complaint of the plaintiff, of which it is a part, should have been dismissed. (Matter of Walker & Hocking, 57 L. T. [N. S.] 763; Burke v. Smith, 16 Wall. 370; Coffin v. Greenlees, 38 Ohio, 275; Barton v. Port Jackson Co., 17 Barb. 397; Foley v. Speir, 100 N. Y. 552; Hess v. Allen, 24 Misc. Rep. 393; Burger v. Koelsch, 77 Hun, 44; Hart v. City Theatres Co., N. Y. Law Jour., April 5, 1911; Wright v. Delafield, 25 N. Y. 266; Burke v. Krank, 75 App. Div. 191; Home Ins. Co. v. Western, 51 N. Y. 93; Beattie v. Marine Ins. Co., 2 Johns. 109.) Assuming that the burden of proof was on the defendant to show that it had no surplus profits, there was competent evidence offered by the defendant to show that it had no surplus profits, and the exclusion of such evidence by the court constituted reversible error. (Thompson v. Hall, 45 Barb. 214; Iselin v. Peck, 2 Robt. 629.) Assuming that the contract was one for a subscription only to shares of stock in the defendant company, nevertheless, as such agreement would be for a subscription in the form otherwise than that authorized by law, the contract was void and the complaint of the plaintiff should have been dismissed. (Meyer v. Blair, 109 N. Y. 600; Armstrong v. Danahy, 75 Hun, 405; Yonkers Gazette Co. v. Jones, 30 App. Div. 316.)</p> <p>It is against the public policy of this state to permit a domestic corporation to purchase its own stock, except in payment of a debt. (Morawetz on Priv. Corp. § 112; Machen on Corp. 7§§ 626, 628; Trevor v. Whitworth, L. R. [12 App. Cas.] 409; Barton v. P. J., etc., P. R. Co., 17 Barb. 397; City Bank v. Bruce, 17 N. Y. 507; Vail v. Hamilton, 85 N. Y. 453; Moses v. Soule, 63 Misc. Rep. 203; Booth v. Dodge, 62 App. Div. 23; Joseph v. Raff, 82 App. Div. 47; Beveridge v. N. Y. El. R. R. Co., 112 N. Y. 22; Leslie v. Lorillard, 110 N. Y. 519; People’s Bank v. St. A. R. C. Church, 109 N. Y. 512.)</p> <p>The agreement sued on is not one for the purchase by a corporation of its own stock, but rather one for the conditional sale thereof. Therefore the statute pleaded as a defense does not apply. (Vent v. D. C. & S. Co., 64 Minn. 307; Browne v. St. P. P. Works, 62 Minn. 90; Ophir Consol. Mines Co. v. Brynteson, 143 Fed. Rep. 829.) Assuming that the contract sued on is illegal because in contravention of section 594 of the Penal Code (now section 664 of the Penal Law), the defendant was, nevertheless, required to plead and prove such illegality as an affirmative defense. (Milbank v. Jones, 127 N. Y. 370; Dunham v. Hastings Pavement Co., 56 App. Div. 244; Strodl v. Farish-Stafford Co., 145 App. Div. 406; Miller v. Roessler, 4 E. D. Smith, 234; Brown v. Brown, 34 Barb. 523; Matter of Castle Braid Co., 145 Fed. Rep. 224; Railway Co. v. McCarthy, 96 U. S. 258; Express Co. v. R. R. Co., 99 U. S. 199; C. C. Bank v. Risley, 19 N. Y. 369.) In the absence of statutory prohibition a corporation may purchase its own stock. There is no statute which in terms provides that the contract of a corporation to purchase its own stock is illegal or void. (City Bank of Columbus v. Bruce, 17 N. Y. 507; Vail v. Hamilton, 85 N. Y. 458; Strodl v. Farish-Stafford Co., 145 App. Div. 406; Booth v. Dodge, 60 App. Div. 27; Moses v. Soule, 63 Misc. Rep. 203; Irwin v. Currie, 171 N. Y. 409; Akers v. M. L. Ins. Co., 59 Misc. Rep. 273; Nat. Bank v. Matthews, 98 U. S. 621.)</p> <p>A corporation has unrestricted power to purchase its own stock, unless the transaction be explicitly prohibited by statute—always provided no rights of creditors be affected and that the transaction be not tainted with fraud. (City Bank v. Bruce, 17 N. Y. 507.) The transaction itself, i. e., the purchase of stock, is not made invalid by the New York statutes, although there are certain prohibitions imposed upon directors. (Matter of Castle Braid Co., 145 Fed. Rep. 224; Moses v. Soule, 63 Misc. Rep. 203; Harris v. Runnels, 12 How. [U. S.] 79; Fritts v. Palmer, 132 U. S. 282; Learned v. Geer, 139 Mass. 31; Bowditch v. N. E. L. Ins. Co., 141 Mass. 293; Niemeyer v. Wright, 1 Matthews [Va.], 239; Watrous v. Blair, 32 Iowa, 58; Pangborn v. Westlake, 36 Iowa, 546; Hanover Nat. Bank v. First Nat. Bank, 109 Fed. Rep. 121.) The statutes should not be so construed as to enable a corporation to take an unconscionable advantage of a third person who has dealt with it in good faith. (W. L. Co. v. Greene, etc., Co., 69 L. R. A. 968; Joseph v. Raff, 82 App. Div. 47; L. C. Bank v. Townsend, 139 U. S. 67; Matter of T. H. Bunch Co., 180 Fed. Rep. 519; Dunlop v. Mercer, 156 Fed. Rep. 545; Waterbury v. McKinnon, 146 Fed. Rep. 737; Nat. Bank v. Stewart, 107 U. S. 676.)</p>

The facts, so far as material, are stated in the opinion. The defendants owed no duty to plaintiff under the provisions of section 18 of the Labor Law, and the charge of the trial court to that effect was erroneous. (Bohnhoff v. Fisher, 134 N. Y. Supp. 28; Schapp v. Bloomer, 181 N. Y. 128; Antes v. Watkins, 98 N. Y. Supp. 522; Huston v. Dobson, 138 App. Div. 810; Bill v. Expanded Metal Co., 60 App. Div. 470; Swenson v. Wilson & Baillie Mfg. Co., 102 App.

<p>Evidence—Previous conviction of defendant—Improper method of PROOF THEREOF.</p> <p>The only method of proving that a witness has been convicted of a crime, for the purpose of affecting his credibility, is by the record or by his cross-examination. (Code Civ. Pro., § 832; Code Crim. Pro., § 392; Penal Law, § 2444.) It is error to allow evidence of his admission of the fact.</p>

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

The nature of the action and the facts, so far as material, are stated in the opinion. The notice of lien filed by the plaintiff created a valid lien under the statute. (S. P. Co. v. G. & J. Ry. Co., 183 N. Y. 306; Dixon v. LaFarge, 1 E. D. Smith, 722; Beals v. F. & D. Co., 76 App. Div. 526; B. & S. L. Co. v. M. P. M. Co., 130 N. W. Rep. 866; C. R. & M. Co. v. Rolling Mill Co., 168 Fed.

The facts, so far as material, are stated in the opinion. Competition is not permitted in the case of public service corporations, regulated by statute, unless the public interest requires it. (Willcox v. C. G. Co., 212 U. S. 19; Weld v. G., etc., Comrs., 197 Mass. 556; Matter of Attorney-General, 124 App. Div. 401; People ex rel. Pub. Serv. Com. v. Long Acre Co., 137 App. Div. 810; People ex rel. N. Y. El. Lines Co. v. Ellison, 188 N. Y. 523; People ex rel.

Appeal by the plaintiff and the defendant Hubbard, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 6,. 1912, which modified) and affirmed as modified, the interlocutory judgment of the Supreme Court sustaining the demurrers of the plaintiff as to certain separate defenses, and overruling them as to other separate defenses contained in the separate answers of the defendants, except that of the…

<p>Negligence —assumption of risk— when employee injured by fall of steam pipe must be held to have assumed risk with full knowledge of the conditions.</p> <p>1. At common law one who voluntarily enters into or continues in service without objection or complaint, having knowledge or the means of knowing the danger involved, is deemed to have assumed the risk.</p> <p>2. A foreman in charge of the weighing of hay was injured by the fall of a steam pipe which was dislodged from its fastening along the end of the roof which covered the scales. The ordinary loads of hay were weighed upon this scale and cleared the roof and steam pipe without trouble. A load of hay of unusual height and size was, upon the day of the accident, driven upon the scales, and in backing this load out the steam pipe was dislodged and fell upon the foreman who was directing the work and guiding the load from the rear. On examination of the facts, held, that the evidence indicates that the accident was not caused by any defect in the pipe or in its fastening; nor does the evidence disclose anything as to the location of the pipe or the character of its fastening that would, put an employer of ordinary carp upon notice; hence he cannot be charged with negligence. That the plaintiff knew more about the existing conditions than any one else, and his failure to bring his knowledge of any dangerous condition, if one existed, to the attention of his employer absolves the latter from liability.</p>

<p>(1.) Murder.</p> <p>The defendant was indicted and tried for the killing of his wife and the jury found a verdict of murder in the- first degree, as charged in the indictment. Held, that the crime was committed under circumstances which leave no reasonable doubt as to the killing having been the deliberate, intentional act of the defendant.</p> <p>(2.) Same — Voluntary statements made by dependant, when under ARREST ARE ADMISSIBL-l AGAINST HIM.</p> <p>AVhere the evidence is clear that a defendant’s statements were voluntary and without any influence of threats or promises being brought to bear, it is of no consequence that he was under arrest, and any statements to, or in the presence of, the officers, which were voluntary on his part, are admissible against him.</p> <p>(3.) Same — AVhen not error to exclude provocatory statements MADE TO DEPENDANT BEFORE THE CRIME.</p> <p>It was not error to exclude evidence of statements made to the defendant by various persons at times prior to the homicide, in relation to the infidelity of his wife where the evidence shows that the homicidal act was committed, not in the heat of an overmastering passion, aroused by some discovered act of infidelity of his wife, but coolly and deliberately.</p> <p>(4.) Same — Insanity as defense — Prosecution may show, in rebuttal, BY OPINIONS OF PHYSICIANS THAT DEFENDANT WAS SANE.</p> <p>It was not error to allow the People, in rebuttal, to show the sanity of the defendant through the opinions of physicians, since it is in the discretion of the court to permit such evidence in rebuttal.</p>

<p>Appeal from an order of the Appellate Division of the 'Supreme Court in the fourth judicial department, entered July 9, 1912, which affirmed a judgment of the Cattaraugus County Court, rendered upon a verdict convicting the defendant of the crime of forgery in the second degree.</p> <p>The facts, so far as material, are stated in the opinion.</p>

<p>Insurance (burglary) — construction of policy—when insurer not liable unless there are visible marks of actual force and violence in entry of premises for commission of burglary.</p> <p>1. If the parties to a contract adopt a provision which contravenes no principle of public policy and contains no element of ambiguity the courts have no right to relieve one of them from disadvantageous terms, by a process of interpretation. If a policy of insurance is of doubtful tenor the courts should employ that interpretation which is the more exacting against the insurer who has prepared the contract. But if the contract is not of uncertain meaning the courts may not make a new one under the guise of construction.</p> <p>2. A policy of insurance set forth, first, that the indemnity was granted “For direct loss by burglary of any of the merchandise described in the schedule * * * occasioned by its felonious abstraction from the store, warehouse, office, loft or rooms, * * * occupied by the assured in the manner set forth in the schedule, by any person or persons who have made forcible and violent entrance upon the premises, or exit therefrom, of which force and violence there shall be visible evidence.” Another clause provides: “ The Company shall not be liable: (1) Unless there are visible marks upon the premises of the actual force and violence used in making entry into the said premises or exit therefrom.” This action is brought to recover on the policy. The burglary occurred while two of plaintiff’s employees were in their place of business, the outer door being unlocked. While they were engaged in their duties two persons, with pistols in their hands, entered by simply opening the door in an ordinary manner, and after assaulting the employees took and carried away a large amount of property. Held., that the requirement that the violence and force employed in effecting a burglarious entry into premises must produce “ visible marks upon the premises ” means that the force and violence in “ making entry” must create visible traces upon the premises themselves which survive the act that produces them, and which being seen are evidence of a burglary. Hence this provision is not satisfied under the circumstances of this case and plaintiff cannot recover.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 31, 1912, which affirmed a judgment of the Court of General Sessions of the Peace of the county of New York rendered upon a plea of guilty of burglary in the first degree.</p> <p>The facts, so far as material, are stated in the opinion.</p>

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered November 10,1911, affirming a judgment of the Municipal Court of the city of New York in favor of plaintiff in an action on an assigned claim for wages. The facts, so far as material, are stated in the opinion. The plaintiff cannot recover because she has failed to show that the assignment of Doherty’s wages was authorized by the power of attorney.

The nature of the action and the facts, so far as material, are stated in the opinion. There can be no forfeiture for non-payment of premium within a year from such payment unless the statutory notice has been duly given. (McCall v. Prudential Ins. Co., 98 App. Div. 225; Strauss v. Union Central Ins. Co., 170 N. Y. 349; Fischer v. Metropolitan Ins. Co., 167 N. Y. 178; Howell v. Hancock Mutual Ins. Co., 107 App.

The nature of the action and the facts, so far as material, are stated in the opinion. Inasmuch as plaintiff had some easements in Cedar street, the Special Term should not have given a judgment on the merits. (Clark v. Scovill, 198 N. Y. 279; Jones v. Gould, 145 App.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department entered January 24, 1912, which affirmed an order of the Monroe County Court sustaining a demurrer to an indictment.</p> <p>The facts, so far as material, are stated in the opinion.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. Section “ Q ” of the contract with Hillman does not justify the appropriation of the plaintiff’s property for public use, either by the municipality or by Olvany, its contractor, without payment therefor. (McNulty v. City of New York, 168 N. Y. 117; Milbank v. Jones, 127 N. Y. 370; Hunt v. City of New York, 47 App. Div. 295; McKyring v. Bull, 16 N. Y. 297; Griffey v. C. Ins.

The nature of the action and the facts, so far as material, are stated in the opinion. A compromise will be set aside at the suit of one who has suffered loss thereby where his adversary has been guilty of fraud inducing the compromise. (Edwards v. Baugh, 11 M. & W. 641; Wade v. Simeon, 2 C. B. Rep. 548; Cook v. Wright, 1 B. & S. 559; Greenleaf v. Barker, Cro.

<p>Will — appeal—when Court of Appeals cannot reverse judgment admitting will to probate because of error in admission or rejection of evidence as to one of three questions submitted to jury — when legatee under two wills presented for probate may testify as to personal transactions with testator — credibility of witnesses to execution of will — exceptions to general rule that positive testimony of unimpeached witnesses, as to certain facts, cannot be disregarded — transactions between attorney and testator as to benefits conferred on former — presumptions arising therefrom — undue influence — erroneous charge.</p> <p>1. Where three questions of fact were submitted to a jury on the probate of a will, the finding as to either of which is conclusive as to its validity, the contention, that where an error was committed in the rejection or admission of testimony as to one of the questions submitted or in the submission thereof to the jury, the verdict as a whole should be set aside, cannot be maintained in this court. Whatever may be the rule in a court which has power to review the action of a jury on questions of fact it cannot be here maintained that an error in the submission of one question to the jury should or did affect its verdict on the other issues. (Petrie v. Petrie, 126 N. Y. 683, followed.)</p> <p>2. Where two wills were presented for probate, the first of which was admitted, it was not error to allow a legatee under both to testify to personal transactions with the testator, where her legacy under the second will was less than that under the first will, her interest being, therefore, adverse to the probate of the second will, the witness having also executed a release of her interest under the first will. (Matter of Wilson, 103 N. Y. 374, and Poder v. Whelpley, 111 N. Y. 239, followed.)</p> <p>3. It is not error to refuse to direct a verdict for the proponents of a will upon testimony of two witnesses who were indirectly interested in the probate, where one is a clerk in the office of the lawyer who drew the will under which he was a residuary legatee and the other witness was the husband of a legatee. The credibility of the witnesses under the circumstances was for the jury.</p> <p>4. The general rule that the uncontradicted testimony of unimpeached witnesses distinctly and positively to a fact should be credited and cannot be disregarded is subject to many qualifications, one of which is that the “witnesses, though unimpeached, may have such an interest in the question at issue as to affect their credibility.” Direct interest, such as would have disqualified the witness at common law, is not necessary to take the case without the exception.</p> <p>5. The exception to the refusal of the court to charge that “if the jury believes the facts as stated in the testimony of either of the subscribing witnesses then they must find that the will was properly executed,” is not well taken, where one of them did not testify to a direct request by the testator to the subscribing witnesses, but to movements of his head which the jury might or might not have found to be an assent to the question put to him by one of the witnesses.</p> <p>6. An exception to the refusal to charge that if the jury found “that the will was executed under the supervision of a lawyer, that this affords a strong presumption that it was executed in compliance with the requirements of the statute ” was not well taken, the court having already charged that under such circumstances there was “ground for a fair inference that it was executed in compliance with the formal requirements of the statute.”</p> <p>7. The rule that a transaction between an attorney and client conferring, a benefit or advantage on the former is presumptively invalid, and that the burden of relieving himself from that presumption rests on the attorney, is confined to transactions or gifts inter vivas and does not apply in all strictness to a gift by will. It is error under such circumstances to charge that the burden of proof upon the question of undue influence rests on the proponent of a will.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The will of Hester Marsh devised 15 Christopher street to her two daughters, Eliza Jane Marsh and Hester Marsh, as tenants in common. (Matter of Albrecht, 136 N. Y. 91; Gage v. Gage, 43 Hun, 501; 112 N. Y. 617; Matter of Cruger, 81 App. Div. 493; Matter of Eldredge, 29 Misc.

The nature of the action and the facts, so far as material, are stated in the opinion. Possession accompanied by the usual acts of ownership is presumed to be adverse until shown to be subservient to the title of another. (Barnes v. Light, 116 N. Y. 34.) Title by adverse possession is always based upon a wrongful act. It is a defiance on the part of the occupant of the rights of the true owner. Yet, if the wrong is persisted in long-enough, it ripens into a right.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 14, 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>No negligence whatever on the part of the defendant was shown. (Corcoran v. N. Y., N. H. & H. R. R. Co., 77 App. Div. 505; Berrigan v. N. Y., L. E. & W. R. R. Co., 131 N. Y. 582; Morgan v. H. R. O. & I. Co., 133 N. Y. 666; Larow v. N. Y., L. E. & W. R. R. Co., 61 Hun, 11; Ely v. N. Y. C. & H. R. R. R. Co., 88 Hun, 323; Wolfinger v. B. H. R. R. R. Co., 121 App. Div. 140; Pearsall v. H. R. R. Co., 189 N. Y. 474; Kudik v. L. V. R. R. Co., 78 Hun, 492.) The failure to adopt and enforce rules was not the proximate cause of the accident. (Corcoran v. N. Y., N. H. & H. R. R. Co., 77 App. Div. 505; Kascsak v. C. R. R. Co., 135 App. Div. 721.)</p> <p>The defendant in failing to promulgate and enforce rules or prescribed practices was negligent towards the plaintiff and persons similarly situated. (Hickok v. Auburn, etc., R. R. Co., 200 N. Y. 464; McCoy v. N. Y. C. & H. R. R. R. Co., 185 N. Y. 276; Lane v. N. Y. C. & H. R. R. R. Co., 109 App. Div. 66; 3 Elliot on Railroads, § 1315; P., etc., R. R. Co. v. McGrath, 115 Ill. 172; Eastwood v. Retsof, 86 Hun, 91; 152 N. Y. 651; Devoe v. N. Y. C. & H. R. R. R. Co., 174 N. Y. 1; Ford v. L. S. & M. S. R. R. Co., 124 N. Y. 493; 2 Brickwood’s Sackett on Instructions to Juries, § 1381; Poliaski v. Pittsburgh, etc., R. R. Co., 14 L. R. A. [N. S.] 952; 114 N. W. Rep. 437; Daly v. Brown, 45 App. Div. 428; 167 N. Y. 381.) The defendant’s negligence was the proximate cause of the injury to the plaintiff. (Hickok v. Auburn, etc., R. R. Co., 200 N. Y. 464; Lane v. N. Y. C. & H. R. R. R. Co., 109 App. Div. 66.)</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 28, 1911, affirming a judgment in favor of plaintiff entered upon a verdict.</p> <p>The plaintiff entered the employment of the defendant on or about the 27th day of June, 1906, and he was injured early in the evening of July 20, 1906, by being crushed beneath an elevator near which he was at work. This elevator was located in the yard, at the side of a building known as the “block plant,” and consisted of an open platform which ran between four guide posts from the ground floor to the second story. It was operated "by compressed air and was used for hoisting and lowering blocks and other heavy substances. Looking toward the building, this elevator stood just to the left of a doorway in which there were heavy double doors which opened outward, and were supported by strap hinges fastened by bolts. The weather had been excessively hot and for the purpose of getting a better circulation of air through the block plant, the foreman of the block department, whose name was Childrey, obtained permission from the superintendent to remove these two doors. Childrey called in the plaintiff, who was regarded a general handy man on machinery, and asked him to help in taking off these doors, for it was a job which one man could not perform. It was evidently thought that the doors could be lifted off their hinges, and for that purpose Childrey and the plaintiff secured a block and tackle. This plan proved unsuccessful, and then Childrey instructed the plaintiff to unscrew the nuts on the bolts which fastened the hinges to these doors. In order to reheve the bolts from any lateral strain, the left door, upon which the work was commenced, was moved to the proper angle and held up by means of straps suspended from the fall and tackle. With the door in this position, plaintiff was compelled to stand in the narrow space between the door and the elevator shaft for the purpose of unscrewing some of the nuts. This space has been roughly described by witnesses as a triangle about six inches wide at its apex, where the door and elevator came nearest together, and about three feet wide at its base or the point nearest the outer edge of the door. The head of the bolt in the part of the door nearest to the building was on the outside of the door so that the nut was on the inside. This nut was first removed by the plaintiff. Then he devoted his attention to the four bolts which had been driven from the inside to the outside of the door so that the nuts were on the outside. In order to take these off the plaintiff went into the space between the door and the elevator, and while standing there in a partially bent position, with the middle of his body extended somewhat over into the unguarded elevator shaft, the elevator came down and crushed him, causing the injuries complained of. The plaintiff testified that when he was told by Childrey to take off the nuts the latter said, “ I will remain here,” and that he had supposed that Childrey was present until the elevator came down and the accident happened. The elevator was not operated by a regular conductor but by any one of the defendant’s employees who had occasion to use it.</p> <p>No negligence was proven consisting of the violation of the statute. (A. L. Co. v. Heins, 141 Fed. Rep. 45.) The plaintiff assumed the risk of a dangerous situation thoroughly known to himself when the danger might have been avoided by the simple act of changing the position of the door before he began his work. He was not relieved from this assumption by the alleged conversation between himself and the foreman Childrey, previously made, in which Childrey is alleged to have promised, after the plaintiff had complained of some dangerous features about the elevator arrangements, that he “would have it attended to.” (Andrecsik v. N. J. Tube Co., 73 N. J. L. 664; Rice v. Eureka Paper Co., 174 N. Y. 385; Booth v. Litchfield, 201 N. Y. 466; Hempstock v. Lackawanna Iron Co., 98 App. Div. 332; Spencer v. Haines, 64 Atl. Rep. 970; Cicalese v. L. V. R. R. Co., 69 Atl. Rep. 166; Leaux v. City of New York, 87 App. Div. 405.) Notwithstanding any promises Childrey may have made to the plaintiff “to have it attended to” or “to remain,” he could not recover if it appeared that he was not in the exercise of due care at the time or was guilty of contributory negligence, and the court erred in refusing to dismiss the complaint on the ground that plaintiff had failed to show freedom from contributory negligence, and in refusing the defendant’s request to charge that if he was guilty of negligence which was the proximate cause of or contributed to his injury, he could not recover. (Hugh v. Railroad Co., 100 U. S. 213; Dist. of Columbia v. McElligott, 117 U. S. 621; Williams Cooperage Co. v. Headwick, 159 Fed. Rep. 680; Butcher v. Hyde, 152 N. Y. 142; Keenan v. B. C. R. R. Co., 145 N. Y. 348; C. S. R. R. Co. v. Railroad Co., 149 N. Y. 51.)</p> <p>The defendant was guilty of negligence in violating the statute. (Fitzwater v. Warren, 206 N. Y. 355.) The plaintiff did not assume the risk arising from the defendant’s violation of the statute, since the defendant had promised to safeguard the place in question and thus in any event had relieved plaintiff from the assumption of risk. (Dowd v. Erie R. R. Co., 70 N. J. L. 451; H. M. Co. v. Fullerton, 69 Fed. Rep. 923; Weber Wagon Co. v. Kehl, 139 Ill. 644; Hunstock v. L. I. & S. Co., 98 App. Div. 332.)</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 3, 1911, which affirmed an order of Special Term reversing a judgment of the Municipal Court of the city of Buffalo in favor of defendant and granting a new trial. 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 February 2, 1912, reversing a judgment of the Appellate Term, which affirmed a judgment of the Municipal Court of the city of New York in favor of plaintiff, and directing a dismissal of the complaint upon the merits. The nature of the action and the facts, so far as material, are stated in the opinion.

The facts, so far as material, are stated in the opinion. Relator is not subject to franchise taxes under the provisions of sections 182 and 184 of the Tax Law with respect to its earnings from the operation of the subway or with respect to its capital invested therein. (People ex rel. M. T. Co. v. Miller, 177 N. Y. 151; Boyd v. Hood, 57 Penn. St. 98; Warrington v. Furber, 8 East, 242; Cooley on Taxn. 454; People ex rel.

The nature of the action and the facts, so far as material, are stated in the opinion. It was error to exclude proffered testimony of Nicklin to show that defendant had not manufactured and sold the tiling on which the plaintiffs sought to recover royalties. (Feldman v. McGraw, 1 App.

The facts, so far as material, are stated in the opinion. A purchaser at a judicial sale will not be compelled to take a doubtful title, and where defects exist that require further or other action to cure them, he should be relieved from his contract.

<p>Jurisdiction—City Court of New York city—provision of statute (Code Civ. Pro. § 315; amd. L. 1911, ch. 569) authorizing said court, in actions for the recovery of money only, to render judgment for $5,000, is in conflict with State Constitutution (Art. 6, §§ 14, 18).</p> <p>1. The power to render judgment is as integral a part of the jurisdiction of a court as the power to entertain the cause of action.</p> <p>2. The amendment to section 315 of the Code of Civil Procedure by chapter 569, Laws of 1911, which raised the amount for which</p> <p>the City Court of the city of New York was authorized to render judgment in actions for the recovery of money only from the sum of §2,000 to the sum. of §5;000, is in conflict with the provisions of the State Constitution (Art. 6, §§ 14, 18).</p>

Van Alstyne, as executrix of Thomas J. Van Alstyne, deceased. The facts, so far as material, are stated in the opinion. Neither payment nor gift was made of the notes and trust deeds. Testator took them as purchaser and retained ownership of them as obligations of Mrs. Van Alstyne. (Hamlin v. Hamlin, 192 N. Y. 171; Thornton on Gifts, 121.) A valid gift has not been proven.

The nature of the action and the facts, so far as material, are stated in the opinion. It was error to allow plaintiff to give conversation with Trustee Reno. (Hungerford v. Village of Waverly, 125 App. Div. 311.) It was error to allow Dr. Brooks to describe the condition of plaintiff’s wife. (People v. Corey, 148 N. Y. 488; Austin v. Bartlett, 178 N. Y. 315.) It was proper to prove by Dr. Brooks the condition of plaintiff’s wife to show that she was not able to work.

The nature of the controversy and the facts, so far as material, are stated in the opinion. The Laws of 1892, chapter 690, section 55, limit the amount of insurance to be obtained upon the life of an infant to the sums named in the schedule therein contained and by reason of the earlier insurance in force the two policies of the defendant are absolutely void. (People ex rel. Swift v. Luce, 97 N. E. Rep. 850; People ex rel.

The nature of the action and the facts, so fas as material, are stated in the opinion. The obligation of the defendant is to be measured by its contract. (Allen v. G. A. Ins. Co., 123 N. Y. 6; Hamilton v. F. M. L. Assn., 27 App. Div. 480; Preston v. Ætna Ins. Co., 193 N. Y. 142; Schoonmaker v. Hoyt, 148 N. Y. 415; Bedell v. Edgett, 120 App. Div. 451; Houlihan v. P. A. Ins. Co., 196 N. Y. 337; Simpson v. Trust Co. of America, 129 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The agreement of March 31, 1908, did not create the debt of the defendant to the plaintiff’s assignor. The debt was created independently of the agreement, by the loans to the defendant. (Noland v. Bull, 24 Oreg. 485.) The transaction between the plaintiff’s assignor and the defendant was a loan, and never became anything else but a loan. (17 Am. & Eng.

<p>Negligence — steam roller on highways — statutes requiring notice to be given of approach of roller.</p> <p>Plaintiff, while running a steam roller on a highway, was injured by a collision with a trolley ear as he was' crossing the track. No notice was given of the approach of the roller by sending a person in advance as is required by section 329 of the Highway Law (Cons. Laws, ch. 25) and subdivision 11 of section 1425 of the Penal Law. Held, that these statutes were proper subjects for consideration by the jury on the question of plaintiff’s negligence.</p>

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered April 25,1911, affirming a judgment of the Monroe County Court which affirmed a judgment of a Justice’s Court in favor of defendant. 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. If plaintiff is entitled to relief against the defendant it cannot be had in this action. (24 Am. & Eng. Ency. of Law, 619; 20 Am. & Eng. Ency. of Law, 809; Browne on Parol Evidence, 77; Steinbach v. Prudential Ins. Co., 62 App. Div. 133; McConbray v. St. Paul, 50 App. Div. 416; Maher v. Hibernia Ins. Co., 67 N. Y. 283; Hay v. Star Ins. Co., 77 N. Y. 240; Le Gendre v. Scottish U. & N. Ins.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered September 10, 1912, which affirmed an order of Special Term sustaining a writ of habeas corpus and discharging the relator from custody.</p> <p>The facts, so far as material, are stated in the opinion.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. Henry McLean, 2d, at the time of his death, held a vested remainder in an undivided share of second parcel under the will of his grandfather, Michael Maher. (Cons. Laws, ch. 50, § 40; Cons. Laws, ch; 13, §§ 98, 100; Code Civ. Pro. §§ 2732, 2734; Matter of Farmers’ Loan & Trust Co., 189 N. Y. 207; Lyons v. Ostrander, 167 N. Y. 139; Fowler v. Ingersoll, 127 N. Y. 972; Teall v. Cons.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered October 4, 1911, affirming a judgment in favor of plaintiff entered upon the report of a referee.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The plaintiff was not relieved from its obligation to maintain the pavement by reason of anything in-the specifications or contract or by any act of defendant. (People ex rel. Hall v. Mahar, 56 Hun, 81; Riley v. City of Brooklyn, 46 N. Y. 444.) Defendant was entitled to apply the five per cent to the expense of maintenance and to recover the amount expended in excess thereof. (McMahon v. Second Avenue R. R. Co., 75 N. Y. 231; Mayor, etc., v. Second Avenue R. R. Co., 102 N. Y. 572.)</p> <p>The specifications having been prepared by the city, and containing a detailed plan from which the contractor had no right to depart, the contractor is not to be deemed the guarantor of the sufficiency of the plans and specifications to produce the result desired, and his contract is performed if he has furnished the materials and done the work according to the plans and specifications, and thus made as good a pavement as the plans and specifications permit. (MacKnight Flintic Stone Co. v. Mayor, etc., 160 N. Y. 72; Gearty v. Mayor, etc., 171 N. Y. 61; Rosenblum v. New York Butchers’ Co., 61 Misc. Rep. 263; Cameron-Hawn Realty Co. v. City of Albany, 134 App. Div. 722; Tide Water Building v. Hammond, 129 N. Y. Supp. 355.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. This action having been brought solely in equity, and the plaintiff at the time of its commencement not being entitled to equitable relief, the court had no jurisdiction to award any other kind of relief to the plaintiff, and should have dismissed the complaint.

The nature of the action and the facts, so far as material, are stated in the opinion. The act of the board of health of the city of New York in assuming to regulate the method of production of milk by plaintiff and the action of the defendant in prohibiting the creamery company in Roxbury, Delaware county, from including plaintiff’s milk in its shipments were without authority of law and an illegal exercise of their alleged powers.

<p>(1.) Murder — Homicide committed by dependant while engaged, with ANOTHER IN COMMITTING OR ATTEMPTING TO COMMIT CRIME OP ROBBERY.</p> <p>The victim of the homicide of which the appellant was found guilty was shot to death by one of two men who visited his saloon for purposes of robbery, in which both actively participated, and while they were engaged in the commission of that crime. Reid, that the proof for the People amply justified the jury in finding that the perpetrators of the robbery were guilty of murder in the first degree on the ground that while engaged in committing or attempting to commit a felony they had killed a human being.</p> <p>(2.) Same — Presumptions—Unless there is evidence por, or against CHARACTER OP DEPENDANT THE LAW PRESUMES NOTHING ABOUT IT.</p> <p>On the trial of a person for crime there is no presumption, one way or the other, upon the question whether the general character of the accused is good or bad. While nothing is to be taken against the defendant by reason of the non-introduction of evidence on his part to establish his good character, there is no rule which compels the jury to conclude that his character is good in the absence of any proof on the subject. Under such circumstances the law does not presume anything about it and the court is not bound to charge that the law presumes the character of the defendant to be good. (People v. Peleare, 185 N. Y. 470, 483, followed.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. If any action can be maintained by respondent on Theresa Cohn’s agreement with Jacob to pay the latter’s debt to him, it is an action at law directly upon the promise and not in equity because of the consideration for the promise.

The nature of the action and the facts, so far as material, are stated in the opinion. The New York Edison Company is the successor of the Block Lighting and Power Company No. 1 and is liable for this indebtedness. (Miner v. N. Y. C. & H. R. R. R. Co., 128 N. Y. 242; Bell v. C. C. & I. Co., 29 Misc. Rep. 109; Klein v. E. R. E. L. Co., 37 Misc. Rep. 490; Matter of Utica Nat.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered November 2, 1911, which affirmed a judgment of Special Term annulling the marriage of plaintiff and defendant, but denying plaintiff any custody or control over a child born of the marriage.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The child of the parties hereto is the legitimate child of the plaintiff, who should be awarded her custody and be entitled to appoint by will a guardian of her person. (Code Civ. Pro. § 1745; Earle v. Earle, 141 App. Div. 611.)</p> <p>The plaintiff does not fall within the Code provision, which would make the child his legitimate heir and entitle him to its possession. (Code Civ. Pro. § 1745.)</p>

May 26, 1910, the relator and the state contracted, under the authority of chapter 147 of the Laws of 1903, known as the barge canal act, and the amendatory acts, that the relator should do specified items of work and furnish specified items of materials in the improvement of the Champlain Canal, in accordance with the plans and specifications forming part of the contract. The prices fixed by the contract aggregated $767,467.00.

The nature of the action and the facts, so far as material, are stated in the opinion. The acts found to have been committed by the defendant would have been unlawful if committed by an individual. (Rothery v. N. Y. Rubber Co., 90 N. Y. 30; Stye v. Mordant, 1 Rolle’s Abr. 104; 2 Rolle’s Abr. 140; Haight v. Price, 21 N. Y. 241.) The declaration by statute that the Chemung river is a highway did not justify the acts found to have been committed.

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

Motion to dismiss an appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered October 17, 1912, which reversed an order of Special Term granting a motion for judgment in favor of plaintiff on the pleadings.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered July 19, 1911, reversing a judgment in favor of defendant 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>Where the policy does not contain a mortgagee clause and the insured fails to make a claim, the proof of loss required by the policy cannot be made by a mortgagee to whom the policy is payable. (1 Clement on Fire Ins. 207; Graham v. Phœnix Ins. Co., 77 N. Y. 171; Ayres v. Hart, 17 Iowa, 178.)</p> <p>The mortgagee to whom the policy had been assigned, or in whose interest it has been taken, may make proofs of loss if they have not been made by the insured. (MacMaster v. Insurance Co., 55 N. Y. 222; Home Building Assn. v. Home Ins. Co., 94 Ga. 167; Lombard Investment Co. v. D. H. Ins. Co., 62 Mo. App. 315; De Witt v. A. Ins. Co., 82 Hun, 229; Armstrong v. A. Ins. Co., 56 Hun, 399; Graham v. F. Ins. Co., 8 Daly, 421.) The mortgagee or other person holding an interest under the policy has a right to make the proof of loss particularly when the insured arbitrarily refuses or is unable to do so. (Lewis v. Guardian Fire Ins. Co., 181 N. Y. 392; 140 App. Div. 557; 102 N. Y. 610.)</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered October 9, 1911, affirming a judgment in favor of defendant entered upon a verdict directed by the court.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>There was sufficient evidence to entitle the plaintiffs to go to the jury on the question of adverse possession. (Sands v. Hughes, 53 N. Y. 287; Fleming v. Burnham, 100 N. Y. 1; Cutting v. Burns, 57 App. Div. 185; Horn v. Worden, 113 App. Div. 893; Miller v. Platt, 5 Duer, 272.) . The defendant’s deed does not include within its description any part of the premises in dispute, and if this is not so as a matter of law, then the construction of the deed was a question of fact for the jury. (Crary v. Goodman, 22 N. Y. 170; Laverty v. Moore, 33 N. Y. 658; Higinbotham v. Stoddard, 72 N. Y. 94; Arents v. Long Island R. R. Co., 156 N. Y. 1; Saranac L. & T. Co. v. Roberts, 125 App. Div. 333.) The deed from Eliza McGillis conveys only lands in Great lot 20, and does not purport to convey any part of the Fort William Henry fields. (Brookman v. Kurzman, 94 N. Y. 276; Ousby v. Jones, 73 N. Y. 621; Benjamin v. Welch, 73 Hun, 371; Coleman v. Beach, 97 N. Y. 545.) The rule that in the construction of a deed courses, distances and quantities must yield to natural or artificial monuments called for by the grant is not inflexible, and where there is anything in the description showing that the courses and distances are right they will prevail. (Higinbotham v. Stoddard, 72 N. Y. 99; B., N. Y. & E. R. R. Co. v. Stigeler, 61 N. Y. 348; People ex rel. Burnham v. Jones, 112 N. Y. 597.) The deed from Eliza McGillis to Elizabeth G. Horn is void for the reason that the description does not close. (Wheeler v. Spinola, 54 N. Y. 377; Den v. Cunningham, Mart. & Yerg. [Tenn.] 73; M’Nairy v. Hightour, 2 Over. [Tenn.] 302; White v. Hembree, 1 Over. [Tenn.] 529; Embanks v. Harris, 1 Spears L. [S. C.] 183; Doe v. King, 3 How. [Miss.] 125; Newman v. Foster, 3 How. [Miss.] 383; Grier v. Penn. Coal Co., 129 Penn. St. 79; 4 Am. & Eng. Ency. of Law, 808.)</p> <p>The deed to James Green of the property in the gore from Catherine T. R. Mathews and others was and is void under the statute known as the Champerty Act (Cons. Laws, ch. 50, § 260). In construing the boundary of the deed to the defendant, a well-recognized and settled doctrine must he applied, to wit: That natural and artificial monuments are more certain and must be accepted in preference to courses and distances. (Wendell v. People, 8 Wend. 183; Yates v. Van De Bogert, 56 N. Y. 526; People v. Jones, 112 N. Y. 567.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff must recover, if at all, solely upon the strength of its record title. (Jarvis v. Lynch, 157 N. Y. 445; Jackson v. Harrington, 9 Cow. 86.) There is no presumption from the facts in this case that the grant from the state to the plaintiff carries even to the center of the so-called four-rod road. (Grahams. Stern, 168 N. Y. 517; Watson v. City of New York, 67 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The court committed error in its numerous rulings upon questions of evidence and in portions of its charge, to which rulings and charge exceptions were duly taken by the defendant. (Ives v. Ellis, 169 N. Y. 85; Harkins v. Q. Ins. Co., 106 App. Div. 170; Dilleber v. Home Ins.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 30, 1910, which affirmed a determination of the Appellate Term affirming a judgment of the City Court of the City of New York in favor of the defendant. The nature of the action and the facts, so far as material, are stated in the opinion. The disposition made of this case violates the settled principles of contract.

<p>(1.) Usury.*</p> <p>Upon the trial of an indictment charging defendants with a violation of section 314 of the Banking Law (Cons. Laws, ch. 2) in having charged and received usurious interest, the complainant, on his direct examination, was questioned as to what happened at the office of defendants when he obtained the loan, and it appeared that whatever occurred on that occasion took place between him and persons other than the defendant. The questions were objected . to on the ground that no connection had been shown with the defendants. Held, untenable where there was other undisputed evidence in the case from which the jury might justly infer that what was done on that occasion was with the sanction of both defendants.</p> <p>(2.) Unincorporated association which loans money on wages, etc., NOT A BANKER.</p> <p>An unincorporated association whose sole business is that of loaning money upon assignments of wages, and upon chattel mortgages, is not a banker within any definition of that term known to the law. The individual members of such an association, therefore, are not protected from prosecution for usury under section 314 of the Banking Law, by section 74 of said law, the effect of which limits a recovery for usury against state banks and private and individual bankers to double the amount of the interest.</p> <p>(3.) Usury — Prosecutions under section 314 banking law.</p> <p>The provisions of the General Business Law (Cons. Laws, ch. 20, §§ 376, 382) to the effect that restitution of moneys or property illegally received shall be a bar to further penalties, are not available in behalf of a person prosecuted under section 314 of the Banking Law.</p> <p>(4.) Same — Sufficiency of indictment.</p> <p>Objections to the indictment upon the grounds that the first count thereof does not state a crime; that both counts are defective because thy fail to state the time when the act was committed, and that more than one crime is charged therein, examined and overruled.</p>

The fundamental question involved is whether chapter 548, Daws of 1912, entitled “ An act to erect the county of Bronx,” etc., violates the Constitution in delegating legislative powers because it provided for submission to the people of the territory comprised within the proposed county the question, “ Shall the territory within the borough of the Bronx be erected into the county of Bronx P ” It is necessary as a basis for subsequent discussion to summarize quite fully the…

<p>(1.) Kidnapping* — Sufficiency of evidence.</p> <p>A defendant, charged with a criminal offense, must be prosecuted according to the forms of law, and his guilt must be established, if at all, by legal evidence, no matter what his origin, his station in life, or his associates may have been, and no matter what other offenses he may have committed. The atrocity of the crime charged does not justify a disregard of rules of law, firmly established in. our jurisprudence for the protection of all alike.</p> <p>(2.) Same — Record examined and evidence held insufficient.</p> <p>The record upon the trial of a defendant indicted for kidnapping a boy eight years of age, examined, and held, that the judgment of conviction must be reversed; that there is no direct evidence tending to connect defendant with the crime charged, and that the evidence of extraneous acts and crimes of defendant, introduced in the attempt to implicate him in the kidnapping, is incompetent and illegal. The defendant cannot be convicted of such crime because his sister was intimate with the family by whom the kidnapped boy was detained, or had herself been concerned in another kidnapping ease, or because defendant unlawfully had dynamite in his. possession, an offense with which he was not charged, or because he was acquainted with a man whose picture was in the “ Rogues’ Gallery,” and who had sent “ Black Hand ” letters and committed other misdeeds, where there is no evidence showing that the acts and offenses proved were related to or connected with the crime-with which he is charged.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. This action is an action of ejectment with demand for incidental equitable relief. As such it is an action at law, triable by a jury. As such the Appellate Division had no power to reverse on the facts in the absence of a motion made below by the defendant for a new trial, the entry of an order thereon and an appeal by the defendant therefrom. (Boos v. World M. L. Ins.

The facts, so far as material, are stated in the opinion. The order of confirmation herein appealed from was prematurely granted; it was error for the court to grant such order before the supervisors of St. Lawrence county had approved the purchase of the bridge in accordance with the provisions of section 265 of the Highway Law. (Springfield F. & M. Ins. Co. v. Allen, 43 N. Y. 389; Matter of R. & C. R. R. Co., 67 N. Y. 242; People ex rel.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 7, 1911, which affirmed an order of Special Term granting a motion for judgment in favor of plaintiff on the pleadings with leave to defendant, appellant, to withdraw his demurrer and serve an answer.

Said act of the legislature, including its title, is as follows: “ AN ACT creating a railway terminal station commission of the city of Buffalo, defining its powers and authorizing said city to issue its bonds. The People of the State of New York, represented in Senate and Assembly, do enact as follows: “ Section 1.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 15, 1912, which affirmed an interlocutory judgment of Special Term overruling a demurrer to the complaint. 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 fourth judicial department, entered April 6, 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 in permitting ice to accumulate on one of its sidewalks.</p>

<p>Interpretation of statute incorporating gas company.</p> <p>The provisions of chapter 651 of the Laws of 1866, incorporating the New York Mutual Gas Light Company, examined and construed.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered February 28,1911, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action to enjoin defendants from interfering with the plaintiff in its work of laying railroad tracks over certain lands in the village of Ossining.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 27, 1911, in favor of defendants upon the submission of a controversy, under section 1279 of the Code of Civil Procedure, as to the construction to be given the terms of a contract.</p>

<p>Title — lands under water of Great South bay — easterly boundary of towns of Huntington and Babylon.</p> <p>Under the “Nicolls Patent,” which granted certain lands in Long Island to the town of Huntington, and under the “Dongan Patent ” confirming said grant, there was no fixed eastern boundary of the granted lands, from the source of the Nassaquack (now the Nissaquoque) river southerly to the Atlantic ocean. Subsequently, however, a third patent, known as the Fletcher patent, was executed to the town of Huntington, on the petition of its inhabitants, which .fixed as the eastern boundary of said lands a line running from the sound southerly to the east side of Sampawams neck or point and thence to the Atlantic ocean. On examination of these patents, held, that while the Fletcher patent did not divest ownership vested by the earlier patents, its intention and effect was to give, by the agreement of the parties, the eastern boundary line of the territory granted by the Nicolls and Dongan patents, and remaining under the ownership of the town of Huntington, a fixed location, and to make certain that which was uncertain. It had the nature and effect of a deed of correction and is conclusive. The eastern boundary of the town of Babylon, which' was created from the town of Huntington, is, therefore, as to lands under the water of Great South bay, a line running south from the easterly side of Sampawams point. Title to lands under the water of the bay east of that line and west of the town of Brookhaven or the ranges is in the state of New York.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 11, 1911, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court in an action to recover money alleged to have been paid under a mistake of fact.</p>

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 2, 1911, which affirmed a determination of the Appellate Term affirming a judgment of the Municipal Court of the city of New York in favor of the defendant in an action to recover wages assigned to plaintiff by defendant’s employees to secure payment of- their notes.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in’ the third judicial department, entered March 15, 1911, affirming a judgment in favor of plaintiff entered upon the report of a referee in an action for services.</p>

Cross-appeals from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered March 17, 1910, modifying and affirming as modified a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action to compel specific performance of a contract to convey lands.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered May 17, 1911, modifying and affirming, as modified, a judgment in favor of plaintiff'entered upon a decision of the court on trial at Special Term in an action to restrain the defendant from flooding plaintiff’s lands and for damages.</p>

Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the second judicial department entered September 10, 1912, which affirmed an order of Special Term granting a motion for judgment in favor of plaintiff on the pleadings. The motion was made upon the ground that the appellants had failed to perfect their appeal by having the sureties on their undertaking justify.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered April 7, 1911, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial at Special Term and granting a new trial in an action to determine title to real property.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered November 27, 1912, which modified and affirmed as modified an order of Special Term denying a motion for judgment on the pleadings and granting a counter-motion for leave to amend by changing the title of the action, which was brought to foreclose a mortgage. The following questions were certified: “1.

Appeal, by defendant appellant, from so much of a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered May 19,1911, as affirmed as against him a judgment in favor of plaintiff entered upon the report of a referee in an action for deceit.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 10,-1911, reversing so much of a judgment of Special Term as dismissed the complaint^ as to defendants, appellants, and granting a new trial in. an action to foreclose a mortgage.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 19, 1911, reversing a judgment in favor of plaintiff entered upon a verdict and granting a new trial in an action upon a promissory note.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 23, 1911, affirming a judgment in favor of plaintiffs entered upon a decision of thé court at a Trial Term without a jury in an action to recover a balance alleged to be due for merchandise sold and delivered.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered March 17, 1910, reversing a judgment in favor of plaintiff entered upon the report of a referee and granting a new trial in an action to enjoin defendant from permitting black smoke, soot and dust to escape from chimneys of its plant in the city of Yonkers.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered October 24, 1911, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court in an action to recover a balance alleged to be due under a building contract.</p>

Motion to substitute Wilhelmina Sarbin and Albert H. Schmitt, heirs at law of Ignatz Schmitt, deceased, as parties respondent in his place and stead, in an action to compel specific performance of an alleged covenant to renew a lease.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 23, 1911, which modified and affirmed as modified a decree of the Monroe County Surrogate’s Court surcharging the accounts of the trustee under the will of Henry Powis, deceased.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 14, 1911, affirming a judgment in favor of plaintiff entered upon the report of a referee in an action to recover upon certain promissory notes.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 8, 1911, reversing a judgment in favor of plaintiff entered upon the report of a referee and granting a new trial in an action by a corporation against its former president for an accounting.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 20, 1912, which reversed an order of Special Term denying a motion for a peremptory writ of mandamus to compel the defendants to certify to the comptroller of the city of New York for payment the amount of an award made on arbitration of a claim for extra work alleged to have been performed under a contract with said city.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 8, 1911, reversing a judgment in favor of plaintiff entered upon a decision of the court on trial at an Equity Term in an action to reform a policy of fire insurance.</p>

<p>Appeal — when order of reversal must direct trial by jury.</p> <p>Where the Appellate Division reverses, upon a question of fact, a decree of a Surrogate’s Court denying an application for the probate of a will, it must, in its order of reversal, direct the trial by a jury of the material questions of fact arising upon the issues between the parties.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 3, 1913, which reversed an order of Special Term sustaining a writ of certiorari to review proceedings of the board of taxes and assessments of the city of 'New York in assessing stock of the relator for the years 1901 to 1907 for purposes of taxation.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 26, 1912, which reversed a determination of the defendant as to the amount of a tax payable upon a mortgage executed by the relator.</p>

order of the Appellate Division of the Supreme Court in the first judicial department, entered December 6, 1912, which affirmed an order of Special Term granting a motion to quash a writ of certiorari to review the proceedings of the defendants in assessing the relator’s capital stock for purposes of taxation.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 7, 1912, which affirmed an order of Special Term denying a motion for judgment in favor of defendants, appellants, on the pleadings in an action for fraud and deceit. 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 October 9, 1911, affirming a judgment in favor of defendant entered upon a verdict in an action on contract.</p>