Volume 208 — New York Reports

<p>Nuisance — injunction — pollution of a stream—when injunction cannot be denied because injury to plaintiff is small as compared with loss to defendant caused by injunction.</p> <p>1. Where the evidence in an action for an injunction clearly establishes an unlawful invasion of plaintiff’s rights by the defendant an injunction cannot be denied because the actual damage to the plaintiff from the continuance of the alleged wrong will be slight as compared with the defendant’s expense of abating the condition.</p> <p>2. Where in an action by the owner of a farm against a large and important paper manufacturing company for an injunction to restrain the defendant from continuing to pollute the waters of a stream running through his farm, the facts proved and found establish a clear case of pollution of the stream by the discharge therein of large quantities of noxious and destructive chemicals, pulp wood, sawdust and other refuse, and that the use and value of plaintiff’s farm have been and are injuriously affected thereby, it is error for the Appellate Division to reverse the injunction granted by the trial court, because of the great loss likely to be inflicted on the defendant by the injunction as compared with the small injury caused to the plaintiff’s land by that portion of the pollution which was regarded as attributable to the defendant. Such a balancing of injuries cannot be justified by the circumstances of the case.</p>

Arpe at, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered February 14, 1913, which affirmed an order of Special “Term granting a motion for a peremptory writ of mandamus to compel the board of supervisors of Nassau county to designate a newspaper representing the N ational Progressive party in that county to publish the session laws, concurrent resolutions of the legislature and acts of said board required to be…

The facts, so far as material, are stated in the opinion. The proceeding before the magistrate, which it is sought in this action to prohibit, in no way affects title. (Houghton v. Bachman, 47 Barb. 388; Simpson v. St. John, 93 N. Y. 363.) The provisions of the Code of Criminal Procedure regarding the disposition of the custody of property seized under a search do not violate the constitutional rights of the respondent.

<p>Appeal in the first above-entitled proceeding from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 25, 1912, which affirmed an order of Special Term allowing to respondents certain “costs as taxed by the court,” and also additional amounts by way of special or extra allowances for counsel fees and disbursements incidental to an. award of damages sustained by the construction and operation of the subway under Joralemon and other streets.</p> <p>Appeal in the second above-entitled proceeding from an order of the Appellate Division of the Supreme Court in the second judicial department; entered July 15, 1912, which affirmed an order of Special Term allowing taxable costs and additional allowances for counsel fees and disbursements in a similar proceeding.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>No authority exists in the Code for the granting of costs and allowances in this proceeding. (Matter of City of Brooklyn, 148 N. Y. 107; Matter of Low, 103 App. Div. 530; Manhattan Ry. Co. v. McKee, 1 App. Div. 488; Matter of State of New York, 152 App. Div. 633; People v. A. L. & T. Co., 150 N. Y. 117; Matter of City of Brooklyn, 88 Hun, 176; Matter of Grade Crossing Comrs., 20 App. Div. 271; Matter of Holden, 126 N. Y. 589; Matter of City of New York, 125 App. Div. 219; 192 N. Y. 569.)</p> <p>The Constitution requires payment of costs and allowances for counsel fees. (Matter of Grade Crossing Comrs., 6 App. Div. 327; Matter of R. T. R. R. Comrs., 197 N. Y. 81; 128 App. Div. 103; M. N. Co. v. United States, 148 U. S. 312; Genet v. City of Brooklyn, 99 N. Y. 296; U. S. v. Dumplin Island, 1 Barb. 24; Epling v. Dickson, 170 Ill. 329; Dolores Land & Canal Co. v. Hartman, 17 Col. 138; City & County of San Francisco v. Collins, 98 Cal. 259; Stolz v. Milwaukee & L. W. R. Co., 113 Wis. 44; Sun Pub. Assn. v. Mayor, etc., 8 App. Div. 230.) The legislature intended to and did provide for payment of costs and allowances. (Matter of Gilbert El. Ry. Co., 70 N. Y. 361; Matter of R. T. R. R. Comrs., 197 N. Y. 81; County of Orange v. Ellsworth, 98 App. Div. 275; Matter of City of Brooklyn, 148 N. Y. 107; Matter of Grade Crossing Comrs., 20 App. Div. 271; Matter of R. T. R. R. Comrs., 117 App. Div. 160; 104 App. Div. 468.)</p> <p>The provisions of the Condemnation Law of the Code authorize the granting of costs and allowances to the owner, and are made applicable to these proceedings. (Code Oiv. Pro. § 3372; Matter of City of Brooklyn, 148 N. Y. 107; Matter of R. T. R. R. Co., 117 App. Div. 161.) The Rapid Transit Act is a violation of the constitutional rights of property owners if it fails to provide for just compensation for property taken. (Matter of City of New York, 125 App. Div. 219; 192 N. Y. 569.)</p>

<p>Judgment — merger—bankruptcy — alimony exempt from discharge in bankruptcy—judgment in action to enforce foreign judgment not discharged by decree in bankruptcy unless-foreign judgment is also discharged.</p> <p>1. The recovery of a judgment in this state, in an action to enforce a foreign judgment for alimony and costs in an action for an absolute divorce, is not a discharge of said foreign judgment, and it" is not merged in the judgment recovered here.</p> <p>3. Alimony due or to become due for the maintenance or support of a wife or child is 'exempt from discharge in bankruptcy proceedings.</p> <p>3. A decree in bankruptcy proceedings should not be held to be a discharge of a judgment in one state unless it at the same time is held to be a discharge of any and all judgments of other states which are founded primarily upon the same debt or duty and which have such a relation to each other that a payment of one would result in a defense to or extinguishment of the others. Hence, a judgment in this state, in an action to enforce a foreign judgment for alimony, is not discharged by a decree in bankruptcy. The foreign judgment is not discharged by such decree, and while it remains in full force and effect the judgment here should not be discharged.</p> <p>4. A claim against a decedent’s estate for the amount due upon a judgment rendered in this state in an action upon a foreign judgment for alimony and costs should be allowed, notwithstanding that such decedent, after the recovery of the judgment, obtained a discharge in bankruptcy.</p>

The appeal also brings up for review the interlocutory judgment rendered at Special Term in favor of defendant. The nature of the action and the facts, so far as material, are stated in the opinion. It was a question of law whether the defendant had an easement by prescription in the plaintiffs’ lot, and it was reversible error to hold that it did. (Hammond v. Zehner, 23 Barb. 473; Treadwell v. Inslee, 120 N. Y. 458; Buffalo v. D., L. & W. R. R. Co., 68 App.

Court in the first judicial department, entered January 3, 1912, which affirmed a final judgment sustaining a demurrer to the complaint, which was entered after the reversal by said Appellate Division of an interlocutory judgment of Special Term overruling said demurrer. 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 second judicial department, entered November 1, 1912, which affirmed an order of Special Term overruling a demurrer to the complaint. Two questions were certified by the Appellate Division: First. Does the complaint herein state facts sufficient to constitute a cause of action ? Second.

White, deceased, and remitted the matter to said Surrogate’s Court to proceed in accordance with its decision. The facts, so far as material, are stated in the opinion. The transfer tax is not a tax upon property but upon the right of succession to property.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June Y, 1912, reversing so much of an order of Special Term as denied a motion for an allowance for counsel fees in excess of the sum of $2,000, for want of power in the court to grant the same, under chapter 724 of the Laws of 1905.

The nature of the action and the facts, so far as material, are stated in the opinion. The defendant violated no obligation and omitted no duty which it owed to plaintiff; therefore, as matter of law the defendant was not guilty of negligence. (McDonald v. Degnon-McLean Cont. Co., 124 App.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 8, 1912, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court. The nature of the action and the facts, so far as material, are stated in the opinion.

. Defendant is a domestic corporation engaged in the nursery business in the vicinity of the city of Rochester, and in 1902 and for some years prior thereto one Alonzo J. Williams, a neighbor of the plaintiff, was the agent of the defendant in Warwick. The plaintiff is the owner of a farm in Warwick, Orange county. Early in the year 1902 the plaintiff concluded to devote about twenty-five acres of land to the purposes of a peach orchard.

<p>Alimony — action to collect alimony granted by foreign judgment— construction and effect of section 1772 of Code of Civil Procedure — appointment of receiver.</p> <p>Plaintiff in 1892 recovered judgment of separation from defendant in the state of Pennsylvania, of which both parties were then residents, in which she was awarded alimony. Defendant avoided compliance with the decree for its payment, and moved to this state; plaintiff brought this action upon the Pennsylvania decree and obtained judgment directing payment of the alimony and providing specifically that defendant execute a bond for its payment in the manner therein provided. Defendant having failed to pay the alimony or execute the bond, a receiver of his income, which is derived from a spendthrift trust, was appointed for the “ uses and purposes specified.” Held, that the judgment is within the provision of the Code of Civil Procedure, section 1772, as amended in 1904, authorizing such an action, and that the appointment of the receiver was properly made.</p>

<p>Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February 3,1911, which affirmed a determination of the Appellate Term affirming a final order of the Municipal Court of the city of New York made in summary proceedings to recover possession of real property and awarding possession thereof to the plaintiff.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The petitioner and landlord on whose behalf the proceeding was instituted had no right to the possession of the premises described in the petition at the time the same was filed, and at the • time the final order was entered, and had not the legal capacity to maintain the same. (Kahn v. Walsh Co., 129 N. Y. Supp. 137; Cullinan v. Goldstein, 113 N. Y. Supp. 21; Commonwealth Mortgage Co. v. De Waltoff, 115 N. Y. Supp. 1090; McAdam on Landl & Tenant [4th ed.], 35.)</p> <p>The petitioner, being the landlord of the premises and the lessor of the tenant, was entitled to institute these proceedings despite the fact that she had leased the premises to a third person under a lease to commence when the lease to the tenant herein had expired. (Greene v. Geiger, 46 App. Div. 210; U. M. R. & I. Co. v. Roth, 193 N. Y. 570.) The new tenant cannot bring himself within the Code provisions to institute summary proceedings against the holdover; hence, if the appellant’s contention be correct, this right to proceed summarily against the holdover is entirely suspended. (Benjamin v. Benjamin, 5 N. Y. 383; People ex rel. v. Simpson, 28 N. Y. 55; Reich v. Cochran, 151 N. Y. 122; Kelly v. Smith, 16 N. Y. Supp. 521; Demarest v. Willard, 8 Cowen, 206; Huerstel v. Lorillard, 6 Robt. 260.)</p>

<p>Drugs and medicines — meaning of term “ ordinary care ” in reference to business of druggist — liability for injury to purchaser of medicine—when evidence of negligence sufficient to take case to jury—retail druggist representing itself to be manufacturer of proprietary medicine is not protected from liability by Public Health Law, § 235.</p> <p>1. The negligence which must be established to render a druggist liable, in a case based upon the sale of a poison to a person who called for a harmless drug, is measured by his duty; and while this is only to exercise ordinary care, the phrase “ordinary care” in reference to the business of a druggist must be held to signify the highest practicable degree of thoughtfulness and vigilance, and the most exact and reliable safeguards consistent with the reasonable conduct of the business.</p> <p>3. Plaintiff brought this action against a corporation engaged in the business of retail druggist to recover for personal injury alleged to have been occasioned through taking a proprietary medicine, sold her by defendant under its own label which contained a statement that the medicine was “purely vegetable,” and was represented to her by defendant’s clerk as being the same as another harmless preparation. Held, that negligence sufficient to take the ease to the jury may be predicated upon evidence that the medicine contained a dangerous mineral poison and that the defendant although representing itself to be the manufacturer and, therefore, presumably acquainted with all the ingredients going'to make up the medicinal preparation which it sold to the plaintiff, knew practically nothing about the nature of the compound, and had taken no effective means to ascertain the true character thereof.</p> <p>3. The druggist representing itself as the manufacturer became liable to the purchaser to the same extent as the actual manufacturers would have been if the purchase had been made from them, and is not protected by the provisions of the Public Health Law (Cons. Laws, ch. 45, § 335, subd. 2), which, after declaring that every retail druggist shall be responsible for the quality and strength of the drugs which he sells, excepts “those sold in original packages of the manufacturer and those articles or preparations known as patent or proprietary medicine. ” (Thomas v. Winchester, 6W. Y.. 397; Torgesen v. Schultz, 192 N. Y. 156, distinguished.)</p>

<p>Principal and agent — conversion — action to recover damages for sale of securities hypothecated for margins — notice of proposed sale — question as to sufficiency of notice of sale, given to plaintiff’s son and agent, one of fact for a jury not a question of law for the court.</p> <p>Plaintiff, whose son was employed by defendants, a firm of stockbrokers, opened through him an account for buying and selling stocks and bonds upon margins. Por more than two years plaintiff’s transactions, which were quite numerous, were consummated through the agency of her son. Plaintiff then went abroad but gave the defendants no notice and left no foreign address with them and no directions concerning her account. The son continued to buy and sell through the defendants and when margins were needed, or demanded, procured- securities of plaintiff from her safe deposit box, which wrere given to defendants to protect her margins. A panic coming on, the defendants demanded more security and the son, being unable to obtain instructions from plaintiff, gave them all of her securities in his possession. Defendants thereupon asked the son to order the sale of the hypothecated securities which he refused to do and requested defendants not to sell them. Defendants, however, upon a few hours’ notice to the son, sold part of the securities. He then arranged with other brokers to carry part of plaintiff’s account and was told in substance by one of the defendants that they would carry the balance of it until her return. Defendants, however, thereafter on short notice to the son sold some of the securities. This action is brought to recover from defendants damages for their conversion. Held, that the facts are sufficient to sustain the conclusion that plaintiff’s son was her agent in the transactions with defendants and that notices of the proposed sale of plaintiff’s securities given to her son were, in legal effect, notices to her. Held, further, that the question whether an arrangement was made by which the defendants were to carry the balance of the account until plaintiff’s return, and whether, under these circumstances, the notices of sale given both before and after the alleged agreement were reasonable and sufficient was not a question of law for the court but one of fact for the jury.</p>

<p>Landlord, and tenant — actions for rent—judgment—when judgment in one action is res adjudicata in another and subsequent action between same parties.</p> <p>1. In an action brought- in a Municipal Court by a landlord to recover from a tenant rent due under a five-year lease to July first of a certain year, the tenant pleaded as a defense that on the fifteenth day of June preceding he had surrendered the premises, and that the landlord had accepted them. The landlord recovered judgment for the full amount claimed. Subsequently the tenant abandoned the premises and paid the judgment. Later the landlord brought this action in the Supreme Court to recover the rent which had accrued subsequent to that for which such judgment was granted. The defendant set up as a defense the same surrender pleaded in the action in the Municipal Court, and this was the sole issue submitted to the jury. Held, that the judgment in the Municipal Court action was res adjudioata of the fact that the lease was in force between the parties at that time, and that there was no surrender of the lease as claimed in such action, and that it was error for the trial court to refuse to so charge in this action.</p> <p>2. It was also error for the trial court to refuse to charge that if the jury found that an agreement was made that the defendant should pay the rent due at a certain date, and also found that he did not pay it until after suit brought and judgment recovered, they must find that he did not perform the agreement, and that the plaintiff was entitled to recover.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. In an equitable action costs are within the discretion of the trial court, and when the court has once exercised its discretion in awarding costs, it cannot afterward amend its decision and judgment by withholding them. (Gennert v. Butterick Pub. Co., 133 App. Div. 86; Kiernan v. Agricultural Ins. Co., 3 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The statute under which this action is brought for imposing the penalty sought to be recovered is contrary to the Federal Constitution as interfering with interstate commerce. (State Freight Tax, 15 Wall. 275; The Daniel Ball, 1 Wall. 1065; Addystone v. U. S., 175 U. S. 246; Wabash Ry. Co. v. Illinois, 118 U. S. 571; Ex parte Scott, 66 Fed.

The nature of the claim and the facts, so far as material, are stated in the opinion. The stock transfer stamp tax is not a tax upon property hut a tax upon the transaction known as the sale of capital stock. There must he a sale or agreement to sell in connection with a transfer or delivery of capital stock to make the transaction taxable, and it is the transaction of sale rather than the stock itself that is subjected by the statute to a tax. (Cons.

The facts, as so far material, are stated in the opinion. Inasmuch as the appellants and the respondents, constituting collectively the “ legal representatives ” of the testator’s daughter Caroline, are all related in equal degree to her, they must inter se, share equally in the distribution. (Cons. Laws, ch. 13, § 98, subd. 10; Schmidt v. Jewett, 195 N. Y. 486; Bisson v. W. S. R. R. Co., 143 N. Y. 125; Phelps v. Cameron, 109 App. Div. 798; Bassett v. Wells, 56 Misc.

The nature of the action and the facts, so far as material, are stated in the opinion. There was no power or authority vested in the commissioner of water supply, gas and electricity to impose the special water rent or charge for the main: tenance of the unmetered fire hydrant upon the premises described in the complaint. (Foster v. Monroe, 40 Misc. Rep. 449; People ex rel.

The nature of the • action and the facts, so far as material, are stated in the opinion. Defendant is liable for the act of its superintendent in charge of the work in compelling plaintiff, an inexperienced man, to undertake the extremely dangerous and hazardous business of exploding the dynamite cartridge. (4 Thomp. on Neg. §§ 4676, 4962; Simone v. Kirk, 173 N. Y. 1; Greco v. P. C. Co., 127 App. Div. 798; 196 N. Y. 543; O’Connor v. Barker Co., 25 App.

The facts, so far as material, are stated in the opinion. The judgment of the court sentencing the defendant for the term of thirty years and adjudging him an habitual criminal on his plea of guilty to an indictment accusing him of the crime of burglary in the first degree, was erroneous. (People v. Jordan, 125 App. Div. 522; People v. Johnston, 112 App. Div. 813; People v. Bosworth, 64 Hun, 80; People v. Cook, 45 Hun, 34; People ex rel. Bretton v. Schlith, 68 Misc.

<p>(1.) Mttedeb — Evidence.</p> <p>Upon the trial of a defendant charged with murder, it appeared that at the time of the homicide he was standing in front of a house with a loaded shotgun threatening to shoot persons who came out of the house. The brother of the deceased came out and defendant pointed his gun at him and threatened to shoot him unless he went back. He then started to go to the street, but the defendant kept his gun pointed at him. While doing so, the deceased came from the other side of the street and asked the defendant what he was doing and why he pointed the gun at his brother. The defendant replied, “ Xou keep still, stay where you are, or I shoot you, too.” As he said that he turned and shot the deceased, and then shot his brother. The deceased was killed, but the brother recovered from his wounds. Helé, that the evidence was sufficient to warrant the jury in resting their verdict, convicting the defendant, upon the existence of a deliberate and premeditated design to effect the' death of the deceased.</p> <p>,(2.) Same — Committed while engaged in anothee crime.*</p> <p>The trial court charged the jury that if the proof justified their conclusion that the defendant shot the deceased with a deliberate and- premeditated design to effect his death, they could find him guilty of murder in the first degree, and that they also had the right to convict him of that crime, if he was engaged in committing, or in attempting to commit, a felony upon the person of the brother of deceased at the time. The jury were further instructed that if the defendant pointed his gun at the brother of the deceased, at the same time threatening to shoot him if he did not stand still, it would constitute an assault in the second degree, which is a felony, and that, if in pursuance of his purpose to commit the assault, he shot and killed the deceased, he was guilty of murder in the first degree.</p> <p>Held, that the charge was correct; that the defendant was committing, or attempted to commit, an assault upon the brother of deceased by menacingly pointing his gun at him; that such assault was quite distinct from the homicide and was not merged therein; and that the minor felony committed upon the brother of deceased was independent of the homicidal act. (People v. Hitter, 184 N. Y. 237; People v. Spohr, 206 N. Y. 516, distinguished.)</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 15, 1913, affirming a judgment entered upon a decision of the court on trial at Special Term, which dismissed certain claims against the estate of Thomas W. Evans, deceased, and directed distribution of said estate.</p> <p>This is an equitable action for distribution of an estate. An interest in the funds is claimed by reason of certain assignments made by two of the beneficiaries under the will, which assignments are alleged by the representatives of said assignors to be void for usury. The claimants contend that though the assignments were given as collateral security for usurious loans, the amount actually loaned should be paid with interest because the present action is in equity.</p> <p>In equity the personal representatives of the borrower can receive relief against usury only after tender of the amount actually received with legal interest. (Williams v. Tilt, 36 N. Y. 419; Billington v. Wagoner, 33 N. Y. 31; Bullard v. Raynor, 30 N. Y. 197; Kay v. Whittaker, 44 N. Y. 565; Murray v. Judson, 9 N. Y. 73; Scott v. Nesbit, 2 Bro. Ch. 642; Mason v. Gardiner, 4 Bro. Ch. 976; Pit v. Cholmondeley, 2 Ves. 565; Fitzroy v. Gwillim, 1 T. R. 153; Fanning v. Dunham, 5 Johns. Ch. 122; Rogers v. Rathbun, 1 Johns. Ch. 367; Tupper v. Powell, 1 Johns. Ch. 439.) The respondents Enos were erroneously awarded equitable relief, against usury in this action without payment of the amount actually loaned. (Williams v. Tilt, 36 N. Y. 319; Cole v. Reynolds, 18 N. Y. 74; Smith v. Cross, 16 Hun, 487; Hudnit v. Nash, 16 N. J. Eq. 550; Vanderveer v. Holcomb, 17 N. J. Eq. 87.)</p> <p>The court erred in granting affirmative equitable relief against the defendants Luria and Brodie in favor of the representative of the Enos estate, without requiring as a condition precedent to the granting of that relief the payment or tender to the defendants Luria and Brodie the amounts advanced, together with legal interest. (Scott v. Nesbit, 2 Bro. Ch. 642; Mason v. Gardiner, 4 Bro. Ch. 976; Pit v. Cholmondeley, 2 Ves. 565; Fitzroy v. Gwillim, 1 T. R. 153; Fanning v. Dunham, 5 Johns. Ch. 122; Rogers v. Rathbun, 1 Johns. Ch. 367; Tupper v. Powell, 1 Johns. Ch. 439; Williams v. Fitzhugh, 37 N. Y. 444; Alden v. Diossy, 16 Hun, 311; Vanderveer v. Holcomb, 17 N. J. Eq. 547.) The assignments to the appellants Brodie and Luria were absolute assignments, and, as absolute assignments, they cannot be declared as usurious. (Flagg v. Fisk, 93 App. Div. 169; 79 N. Y. 590; Cutler v. Wright, 22 N. Y. 472; Weaker v. Fiero, 145 N. Y. 165; Hall v. Eagle Insurance Co., 151 App. Div. 815.)</p> <p>There was no usury in the Engel transaction. (Sieward v. Humel, 91 N. Y. 199; Etwell v. Chamberlan, 4 Bosw. 320; Mass v. Chatfield, 90 N. Y. 303; Sutherland v. Woodruff, 26 Hun, 411; 95 N. Y. 653; Hall v. Ditson, 55 How. 19; Meaker v. Fiero, 145 N. Y. 165; Sweney v. Peaslee, 42 N. Y. S. R. 485.) The assignments were absolute sales and no usury was shown. (Sieward v. Humel, 91 N. Y. 199; G. M. L. Ins. Co. v. Kashaw, 66 N. Y. 544.) The court erred in granting affirmative relief against Engel. The failure of the Enos estate to pay Or offer to pay to Engel the sum actually paid by Engel for the alleged loans is fatal to the defense of usury on the part of the legal representative of a deceased borrower. (Vilas v. Jones, 1 N. Y. 274; Alden v. Diossy, 16 Hun, 311; Post v. Bank of Utica, 7 Hill, 391; Bissel v. Kellogg, 65 N. Y. 432; Beecher v. Ackerman, 1 Abb. [N. S.] 141; O’Brien v. Ferguson, 37 Hun, 368; Schermerhorn v. Talman, 14 N. Y. 93; Wheelock v. Lee, 64 N. Y. 243; Richards v. Ludington, 60 Hun, 135; Allerton v. Belden, 49 N. Y. 373.)</p> <p>J. Noble Hayes for Charles H. Enos, as administrator of the estate of Roland Enos, deceased, et al., defendants, respondents." The respondents did not seek affirmative relief in this action against the appellants, and the rule invoked by them that in equity a party coming into court for such relief must do equity by tendering the amount of the loan with lawful interest, has no application to the case at bar. (Schlesinger v. Gilhooley, 189 N. Y. 1; Claflin v. Borman, 122 N. Y. 385; Mercantile Trust Co. v. Gimbernat, 134 App. Div. 410; 5 Am. & Eng. Ency. of Law, 30; Lamb v. Camden R. Co., 46 N. Y. 271; Powers v. Russell, 13 Pick. 76; Bent v. Barett, 124 N. Y. 117; Goldsmith v. M. L. Ins. Co., 102 N. Y. 117; Willett v. Rich, 142 Mass. 356; Heinemann v. Heard, 62 N. Y. 448; Derham v. Lee, 87 N. Y. 599.) The conclusions of law upon the findings of fact as to the claim against the Enos estate and the judgment rendered thereon are in accordance with law, (Wetzler v. Wood, 143 App. Div. 316; Quackenbush v. Thayer, 62 N. Y. 344; Scott v. Lloyd, 9 Pet. 18; Mercantile Trust Co. v. Gimbernat, 134 App. Div. 413; Rothschild v. Roux, 78 App. Div. 282; Hagaman v. Rinach, 48 Misc. Rep. 206; Hall v. Eagle Ins. Co., 151 App. Div. 815; Scott v. Doyle, 9 Pet. 425.)</p> <p>The defendant Charles IT. Enos, as administrator, was not seeking affirmative equitable relief, nor was he a complainant in equity, and, therefore, did not have to tender the amount actually advanced. (Hart v. Goldsmith, 1 Allen [Mass.], 145; Smith v. Robinson, 10 Allen, 130; Garrish v. Black, 99 Mass. 315; Vanderveer v. Holcomb, 17 N. J. Eq. 87; 17 N. J. Eq. 547; 1 Pom. Eq. Juris. [3d ed.] 648; Webb on Usury, 396.) The assignments, being given for loans and jewelry and the items not being separable, are wholly void. (Williams v. Fitzhugh, 31 N. Y. 444; Fulton Bank v. Benedict, 1 N. Y. Super. Ct. 480; Jackson v. Packard, 6 Wend. 415.)</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department^ entered January 8, 1913, modifying and affirming as' modified the confirmation by the common council of the city of Rochester of the report of commissioners in condemnation proceedings.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>Commissioners Hubbard and Crittenden were not disinterested because of their liability to pay part of the award made by them. This disqualified them to act as commissioners. (Darling v. Pierce, 15 Hun, 546; Matter of Hancock, 27 Hun, 81; Matter of Terminal Railway, 16 App. Div. 516; Matter of Grade Crossing Comrs., 69 Misc. Rep. 23; Matter of City of Rochester, 31 N. Y. S. R. 75; Diveny v. City of Elmira, 51 N. Y. 506.) The admission of evidence as to ownership of the property alleged to be in Frank street was error. (Mangam v. Vil. of Sing Sing, 26 App. Div. 469; 10 Am. & Eng. Ency. of Law, 1188.)</p> <p>Commissioners Hubbard and Crittenden were qualified. (2 Lewis on Em. Domain, 996, 1028, 1075, 1086, §§ 562, 580, 611, 625; Matter of Baker, 173 N. Y. 254.) The encroachment of the buildings of the Otis Elevator Company upon Frank street tended materially to lessen their value. (24 Am. & Eng. Ency. of Law [2d ed.], 159; Metropolitan Exhibition Co. v. Newton, 51 Hun, 639; D., L. & W. R. R. Co. v. City of Buffalo, 4 App. Div. 562; 158 N. Y. 266.)</p>

Appellant also gives notice of her intention to bring up for review a so-called intermediate order refusing to set aside the basic order in the proceedings requiring her to appear and be examined. The facts, so far as material, are stated in the opinion. While a motion to punish for contempt, begun by the order to show cause, is an order in the special proceeding under the Judiciary Law, section Y61, yet it is a final order in many cases and is then appealable to this court.

The nature of the action and the facts, so far as material, are stated in the opinion. The negligence of the defendant was clearly established; at least the evidence relating to that branch of the case raised a substantial issue of fact which required its submission to the jury.

The plaintiff and the defendants’ testator were two of the heirs at law and next of kin of Lucena Briggs, deceased, and as such would each have been entitled to one-eighth of her estate if she had died intestate. She, however, left an alleged will under which the plaintiff was to receive nothing and the defendants’ testator was to receive substantially one-fourth of the estate after deducting two small legacies of $500 and $300 respectively.

The nature of the action and the facts, so far as material, are stated in the opinion. The referee erred in admitting and considering the testimony touching equitable estoppel over plaintiff’s objection; he also erred in refusing to strike out this testimony on plaintiff’s motion; and the Appellate Division erred in affirming the referee’s action, for the reason that equitable estoppel is a “defense” which must be pleaded, and was not in this case. (Code Civ.

The nature of the action and the facts, so far as material, are stated in the opinion. The question of plaintiffs’ negligence in the examination of their accounts was for the jury. (Weisser v. Denison, 10 N. Y. 68; Critten v. Chemical Bank, 171 N. Y. 219; Frank v. Chemical Nat. Bank, 84 N. Y. 209; Clark v. Nat. S. & L. Bank, 32 App. Div. 316; 164 N. Y. 498; Wilmerding v. P. Tel. Cable Co., 118 App. Div. 685.) Defendant’s negligence presented a question of fact for the jury.

The nature of the action and the facts, so far as material, are stated in the opinion. The notice served upon the respondent is sufficient, within the terms and meaning of section 1822 of the Code of Civil Procedure, to start in operation the short Statute of Limitations therein provided. (Matter of Jacobs, 109 App. Div. 293; Matter of Mudge, 118 N. Y. Supp. 568; Dawbarn v. Fleischmann, 146 App. Div. 57; U. C. Sav. Inst. v. Young, 161 N. Y. 23; Miller v. Longshore, 147 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The use by the appellant of the ponds upon his premises, for the raising of ducks in the manner in which they are ordinarily raised, was not a nuisance, and the decree which enjoined such use was unwarranted. (Sweet v. City of Syracuse, 129 N. Y. 316; 2 Black.

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. A contract which does not by its terms fix a definite time for performance requires performance within a reasonable time from the date of the contract, and in case of default there is no necessity for formal notice to complete at a future definite date as a condition precedent to action based on such default.

<p>Will — in the construction of doubtful provisions of a will the words used must be taken in their natural sense —meaning and application of word “each” in clause distributing residuary-estate among nephews and nieces of testator.</p> <p>1. The natural sense in which words are used, as it appears from judicial inspection, always prevails over both punctuation and capitals, which are regarded as such uncertain aids in the interpretation of written instruments as to be resorted to only when all other means fail.</p> <p>2. Testator provided by his will: “ Eleventh. All the rest and residue and reversion of my estate, both real and personal, I give, devise and bequeath as follows,— to my nephew, Byron J. Tillman of Buffalo, N. Y., one share; to my niece, Grace Joy of Boise, Idaho, one share; and to each of the children of my brother, George Turner, one share, to be divided equally among my said nieces and nephews share and share alike. I direct that the share of any dying with issue sm-viving shall be paid to such issue and that the share of any dying without issue surviving shall be equally divided among the survivors.” A son of the said George Turner died before the testator made his will, leaving a daughter, Blanche Turner, him surviving. Held, that assigning to the word 11 each ” its correct signification in the clause in question, viz., “ Every one of the two or more composing the whole,” the bequest is the gift of one share to every one of the children of the testator’s brother George, and can only be carried into effect by treating the entire residuary clause as a bequest per capita to the individuals named or indicated therein. Held, further, that as the father of the respondent Blanche Turner died before the making of the will he could take nothing thereunder, and, therefore, nothing under the will passed to his daughter. {Be Hottebeek v. Astor, 13 S'. Y. 98, and Pimel v. Betjemann, 183 N. Y. 194, distinguished.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. ' The trial court had no jurisdiction of the action or to render the judgment herein. (U. S. Const. art. 1, § 8; Fort Leavenworth R. R. Co. v. Low, 114 U. S. 264; Commonwealth v. Clary, 8 Mass. 72.) The bond in suit was illegal, void and a nullity in its inception. (M. L. Ins.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered April 26, 1911, which reversed an order of the court at a Trial Term setting aside a verdict in favor of defendant and granting a new trial, and directed judgment for defendant. The nature of the action and the facts, so far as material, are stated in the opinion.

Appeal, in each of the above-entitled actions, from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered October 1, 1912, affirming a judgment in favor of plaintiff entered upon the report of a referee. The nature of the actions and the facts, so far as material, are stated in the opinion.

The action was brought to recover the cost of lumber which the plaintiffs, as shippers of produce over defendant’s railroad, bought and used for the purpose of making certain freight cars furnished by the defendant suitable for such shipments. At the Trial Term the court directed a verdict for the amount of the plaintiffs’ claim, and denied defendant’s motion for the direction of a verdict in its favor.

This action was brought to obtain an adjudication that certain shares of the capital stock of the defendant are the property of the plaintiff. The disposition of the action made by the court should be treated as a non-suit and not as a decision. (Veazey v. Allen, 173 N. Y. 359; Raabe v. Squier, 148 N. Y. 81; Forbes v. Chichester, 125 N. Y. 769; Woodbridge v. First Nat.

The nature of the action and the facts, so far as material, are stated in the opinion. The trial court erred in denying the motion of the breweries company for a nonsuit at the close of the evidence. (Hickok v. A. L. H. & P. Co., 200 N. Y. 464; Butler v. Huter, 7 H. & N. 726; McCafferty v. S. D. & P. M. R. R. Co., 61 N. Y. 178; Engel v. Eureka Club, 137 N. Y. 100; Burke v. Ireland, 166 N. Y. 305; 1 Thompson’s Comm, on Neg. §§ 624, 625, 680, 979; Sartirana v. N. Y. C. Nat.

This action was brought to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of defendant, his employer. The facts, so far as material, are stated in the opinion. Defendant’s negligence and plaintiff’s contributory negligence were questions of fact and should have been submitted to the jury.

The nature of the action and the facts, so far as material, are stated in the opinion. The complaint is sufficient; the proof offered by the plaintiff was entirely competent under the -pleadings. (People v. Mechanics & Traders’ Sav. Inst., 92 N. Y. 7; Fowler v. Bowery Sav. Bank, 113 N. Y. 450; People ex rel. Sav. Bank v. Berker, 154 N. Y. 128; People v. Dederick, 35 App. Div. 29; Deehen v. Deehen, 59 App. Div. 166; Matter of White, 119 App.

order of the Appellate Division of the Supreme Court ’in the first judicial department, entered March 29, 1912, which affirmed an order of Special Term dismissing an alternative writ'of mandamus to compel the reinstatement of the relator in the position of superintendent of municipal ferries in the city of New York, after trial of the issues before a jury resulting in a directed verdict in favor of defendant; also, appeal from a judgment entered upon said order and from an…

<p>negligence—when contributory negligence of husband is not a defense in action brought by him for death of his wife caused by negligence of defendant.</p> <p>Where an action is brought by a husband, as administrator, under section 1903 of the Code of Civil Procedure, to recover for the negligent killing of his wife, his contributory negligence is not a defense even though he is the sole beneficiary. (Littlewood v. Mayor, etc., of New York, 89 W. Y. 34, followed.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The owners in fee of the lands upon each side of the fence in question had the exclusive right to remove the same. (Coleman v. Pickett, 61 N. Y. S. R. 78; St. Vincent's Orphan Asylum v. City of Troy, 76 N. Y. 108; White v. Manhattan Ry.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff is the only family of the defendant, William D. Oberndorf. There is no issue of the marriage, and, even though living separate and apart, the plaintiff wife is, under such circumstances, the only family of her husband.

The nature of the action and the facts, so far as material, are stated in the opinion. The- motion to dismiss the complaint for failure of proof should have been granted. There is no proof that the child was burned by a fire which defendant’s agent either lit or fed. (Ruppert v. B. H. R. R. Co., 154 N.Y. 90; People v. Kennedy, 32 N. Y. 141; People v. Harris, 136 N. Y. 429; Nelson v. City of New York, 101 App. Div. 18, 20; Clarke v. Koeppel, 119 App.

<p>Negligence—action for death of employee of electric light company killed by current of electricity turned on by co-servant — insufficiency of evidence to show that act of co-servant was by order, or negligence, of superintendent of defendant;</p> <p>Where a lineman of an electric light and power company was killed, while repairing a wire, by an electric current turned on the wire by a fireman at the power house, acting, as alleged by plaintiff, under the order of the superintendent of the company, a judgment, recovered for his death, in an action brought against the company under the Employers’ Liability Act (Labor Law, §§ 200-204; Gons. Laws, ch. 31), cannot be sustained unless it is shown by the evidence that the superintendent was negligent either in directing the current to be turned on, or in doing some act which he could reasonably anticipate would be construed as such a direction. Evidence that the superintendent, calling from a distance, told the fireman to answer the telephone in the power house, the bell of which was ringing, and that the fireman understood the superintendent to tell him to turn on the current and that hq did so, is insufficient to sustain a verdict for the plaintiff, on the question submitted to the jury, i. e., whether the superintendent did, in fact, direct the turning on of the current.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 30, 1910, which affirmed a judgment of the Court of Special Sessions of the city of New York convicting the defendant of the crime of grand larceny in the second degree.</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 property was not retaken until June 1, 1910, after which date defendant concededly complied with the statute. (Sigal v. Hatch Co., 61 Misc.

The nature of the action and the facts, so far as material, are stated in the opinion. The appellate court below erred in its conclusion that if this action had been brought in the state of Ohio against a citizen of Ohio, the eighteen months’ Statute of Limitation would have barred the remedy.

<p>Infants — negligence — degree of care to be exercised by-infant, who is sui-juris, to avoid danger.</p> <p>1. An infant, to avoid the imputation of negligence, is bound only to exercise that degree of care which can reasonably be expected of one of its age.</p> <p>2. In an action to recover for the death of a boy fourteen years of age, who was killed by an automobile, the court properly charged that “ The deceased was probably mi juris ; but that does not mean that he must exercise the degree of care that an adult person must exercise, but he was charged with the duty of exercising the measure of care and caution that is common and usual with boys of that age,” and properly refused to charge “ That the burden of proof is upon the plaintiff to show that the deceased used the same degree of diligence in avoiding danger that would'be exacted of an adult under the same circumstances. ”</p>

Action No. 1. Appeal in the first above-entitled proceeding from an order of the Appellate Division of the Supreme Court in the third judicial department, entered December 3, 1910, which reversed an order of Special Term vacating and setting aside a special franchise tax assessment upon property of the relator in the town of Minden, and modified the determination of the defendants by reducing said assessment. The facts, so far as material, are stated in the opinion.

The nature of the action and the facts, so far as material, are stated in the opinion. The trial court erroneously directed a verdict for the plaintiff.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered December 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.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The acceptance by the court of measurements actually made as against mere guesses was correct. (Davidson v. City of New York, 133 App. Div. 352; Terry v. Vil. of Perry, 199 N. Y. 79.) The mere fact that in the roadway at a point six feet from the curb and not in the crosswalk was a hole but four inches deep, and presenting no unusual features, was not sufficient to charge the municipality with negligence. (Hamilton v. City of Buffalo, 173 N. Y. 72; Butler v. Village of Oxford, 186 N. Y. 444; Terry v. Village of Perry, 199 N. Y. 79; Moroney v. City of New York, 190 N. Y. 560; 117 App. Div. 842; Fordham v. Gouverneur Village, 160 N. Y. 541; Mullins v. Seigel Cooper Co., 183 N. Y. 129; Durr v. N. Y. C. & H. R. R. R. Co., 184 N. Y. 320; Williams v. City of Brooklyn, 33 App. Div. 539; Gastel v. City of New York, 194 N. Y. 15; Beltz v. City of Yonkers, 148 N. Y. 67.)</p> <p>The plaintiff was not bound by the testimony of Bartlett, and the jury had the right to find that the hole was deeper than four inches. (Miller v. City of New York, 104 App. Div. 33; Murphy v. City of New York, 142 App. Div. 62.) Even if the plaintiff were bound by the testimony of Bartlett as to the depth of the hole, a case for the jury was made out. (Durr v. N. Y. C. & H. R. R. R. Co., 184 N. Y. 320.)</p>

The order of the Appellate Division dated May 3,1910, annulling the designation of the Courier and Freeman, having been made by a court of competent jurisdiction, was absolutely valid and controlling for all purposes and all proceedings based upon it were entirely valid until the order was reversed on appeal. (Langley v. Warner, 3 N. Y. 327; Thaxter v. Thane, 100 App. Div. 488; Lovett v. German Reformed Church, 12 Barb. 67; Lesster v. Lawyers' Surety Co., 50 App.

The facts, so far as material, are stated in the opinion. The transfers involved herein were void under the statute if made (1) while the corporation was insolvent or its insolvency was imminent, and (2) with the intent of giving preference to particular creditors. The purpose of the statute is to secure equality among the creditors of insolvent corporations, and it is to be liberally construed in the effectuation of that purpose.

The nature of the action and the facts, so far as material, are stated in the opinion. It cannot be said that the decedent exercised the care which a person of ordinary prudence would exercise to look out for himself under these circumstances. (Zuckert v. Whitridge, 205 N. Y. 50; May v. N. Y. C. & H. R. R. R. Co., 137 App. Div. 7.) The defendant failed to prove the defense of contributory negligence so as to leave no question for the jury in that regard. (Texas & Pacific Ry.

The facts, so far as material, are stated in the opinion. The legislature cannot by statute require or authorize to be performed by any other officer or authority powers conferred by the Constitution upon a specified elective officer, nor can it take from such officer rights, powers and duties vested in him by the Constitution. (Warner v. People, 2 Den. 283; People v. Keeler, 29 Hun, 175; People ex rel.

The nature of the action and the facts, so far as material, are stated in the opinions. The complaint does not state a cause of action. The statute in force at the time of the advance referred to imposed no liability upon the defendant, the trustee under a trust mortgage, to pay the tax thereon, and no liability was thereafter created for such a case as this. (City of Rochester v. Gleichauf, 40 Misc.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February 23,1912, which affirmed an order of Special Term granting a motion to substitute the administratrix of Solomon Wolffberg, deceased, the original defendant, as defendant in this action. The facts, so far as material, and the question certified are stated in the opinion. The cause of action does not survive.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 31, 1913, which affirmed an order of Special Term denying a motion by the appellants herein for j udgment on the pleadings.

The facts, so far as material, are stated in the opinion. The supplementary petition filed herein, the order of the commission and the facts proved upon the hearing raise the question as to whether section 89 of the Railroad Law applies to this case. • Said section is not applicable because it is not proposed to construct a new railroad but to build a new track about twelve feet south of the original right of way of thq company.

The nature of the action and the facts, so far as material, are stated in the opinion. Reversible error was committed by the reception of incompetent evidence. (Merchants’ Nat. Bank v. Clark, 139 N. Y. 313; Cobb v. United Engineering Co., 191 N. Y. 480; First Bank v. Ocean Nat. Bank, 60 N. Y. 278; Fox v. Village of Manchester, 183 N. Y. 141; Tompkins v. Fonda Glove Lining Co., 188 N. Y. 261; Wagner v. Clausen & Son Brewing Co., 146 App.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered Hay 31, 1912, affirming a judgment in favor of plaintiff entered upon a decision of 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>Defendant Elizabeth S. C. Seavey, the bankrupt, under the will of her grandfather, William H. Clement, deceased, possesses a possibility not coupled with an interest. She does not possess an expectant estate, nor a beneficial mterest. (Hamlin v. Osgood, 1 Redf. 409; Clark v. Cammann, 160 N. Y. 316; Matter of Baer, 147 N. Y. 348; Lewisohn v. Henry, 179 N. Y. 352; Matter of Crane, 164 N. Y. 71; Salter v. Drowne, 205 N. Y. 204; Hall v. La France Fire Eng. Co., 158 N. Y. 570; Fargo v. Squiers, 154 N. Y. 250; McGillis v. McGillis, 154 N. Y. 532; Cochrane v. Schell, 140 N. Y. 516; Striker v. Mott, 28 N. Y. 82.) The bankrupt’s chance or possibility of inheritance under the will of William H. Clement, deceased, is not property capable of transfer or sale under judicial process. The trustee in bankruptcy takes no title thereto and has no standing to bring this action. (Edwards v. Varick, 5 Den. 665; Stover v. Eycleshimer, 46 Barb. 84; Matter of Stevens, 64 N. Y. Supp. 990; Johnson v. Williams, 63 How. Pr. 233; Field v. Mayor, 6 N. Y. 179; Pelletreau v. Jackson, 11 Wend. 110; Jackson v. Waldron, 13 Wend. 178; Robinson v. N. Y. Life Ins. & Trust Co., 75 Misc. Rep. 361; Lampett's Case, 10 Coke, 46; Manning’s Case, 8 Coke, 187.) The assignee Mary E. Seavey was an innocent purchaser for value. The assignment should not, therefore, have been set aside. (Elterman v. Hyman, 192 N. Y. 113, 117; City of Buffalo v. D., L. & W. R. R. Co., 190 N. Y. 84; Nicoll v. Tracey, 184 N. Y. 386; 390; Israel v. Manhattan Ry. Co., 158 N. Y. 624; Kerker v. Levy, 140 App. Div. 428; Willis v. Willis, 79 App. Div. 9; De Hierapolis v. Reilly, 44 App. Div. 22; 168 N. Y. 585; Greenwald v. Wales, 174 N. Y. 140; Waterbury v. Sturtevant, 18 Wend. 363; Dudley v. Danforth, 61 N. Y. 626; Stearns v. Gage, 79 N. Y. 102; Starin v. Kelly, 88 N. Y. 418; Billings v. Russell, 101 N. Y. 226, 243; Bush v. Roberts, 111 N. Y. 278; Hines v. Bowe, 114 N. Y. 350; Knower v. C. N. Bank, 124 N. Y. 552, 560.)</p> <p>The interest of the defendant Elizabeth S. 0. Seavey in the estate of her grandfather, William H. Clement, deceased, constituted property. Subject to the hfe estate of her father and mother and their two children, of which she was one, she had an undivided one-half of the corpus of the trust, her interest being either vested or contingent. For the purposes of this point it is not very material whether such interest was vested or contingent. In either case it was property and her conveyance on the 19th of November, 1908, to her mother-in-law, the defendant Mary E. Seavey, constituted a transfer of property. (Nat. Park Bank v. Billings, 144 App. Div. 536; Smith v. Edwards, 88 N. Y., 92; Jarman on Wills [5th Am. ed.], § 837; Moore v. Littel, 41 N. Y. 66; Beardsley v. Hotchkiss, 96 N. Y. 201; Crooke v. County of Kings, 97 N. Y. 421; Dodge v. Stevens, 105 N. Y. 585; New York Life Ins. & Trust Co. v. Cary, 191 N. Y. 33.) Such interest of the defendant Elizabeth S. C. Seavey in her grandfather’s estate was a vested one — vested in her and in her brother, Henry S. Clement, Jr., the enjoyment only being postponed until the death of them father, Henry S. Clement, Sr., and his wife, Julia Y. Clement. (Roosa v. Harrington, 171 N. Y. 341; Lytle v. Beveridge, 58 N. Y. 592; Miller v. Von Schwarzenstein, 51 App. Div. 18; Manice v. Manice, 43 N. Y. 303; Embury v. Sheldon, 68 N. Y. 227; Thomson v. Hill, 87 Hun, 111; Hersee v. Simpson, 154 N. Y. 496; Johnson v. Brasington, 156 N. Y. 181; Riker v. Gwynne, 201 N. Y. 143; Bushnell v. Carpenter, 92 N. Y. 270.) The assignment made by the defendant Elizabeth S. C. Seavey to her mother-in-law, Mary E. Seavey, on the 19th day of November, 1908, was fraudulent and void. (Young v. Heermans, 66 N. Y. 374; Kain v. Larkin, 4 App. Div. 209; Robinson v. Stewart, 10 N. Y. 189; Townsend v. Bumpus, 29 App. Div. 122; Graff v. Bonnett, 31 N. Y. 9; Schenck v. Barnes, 25 App. Div. 153; 156 N. Y. 316; Billings v. Russell, 101 N. Y. 226.) Even if Mary E. Seavey did advance the sums urged by the defendants as a consideration it does not avail to save the conveyance. (Robinson v. Stewart, 10 N. Y. 189; Harris v. Osnowitz, 35 App. Div. 594; Todd v. Monell, 19 Hun, 362; Guckenheimer v. Angevine, 81 N. Y. 394.)</p>

The nature of the action and the facts, as far as material, are stated in the opinion. The sale of the books was not void by the Statute of Frauds, and operated as a payment, taking the claim out of the operation of the Statute of Limitations. (Cons. Laws, ch. 41, § 31; Brabin v. Hyde, 32 N. Y. 519; Bissell v. Balcom, 39 N. Y. 275; Jones v. Reynolds, 120 N. Y. 216; Gray v. Davis, 10 N. Y. 285; Bowe v. Ellis, 3 Misc.

The nature of the action and the facts, so far as material, are stated in the opinion. Whether a deposit in a savings bank by one in trust for another operates as a gift to the beneficiary, is a question of fact and must be decided upon the facts in each individual case.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 1,1911, reversing a judgment in favor of plaintiff entered upon á decision of the court on trial at Special Term and granting a new trial in an action to obtain the cancellation of two assignments of mortgages given by plaintiff to the New Amsterdam Bank as security for debts of a third party to said bank.</p>

The action is brought to enforce the personal liability of the stockholders of the Maiden Lane Safe Deposit Company under section 303 of the Banking Law (Cons. Laws, ch. 2).

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered October 16, 1911, upon an order which reversed an interlocutory judgment of Special Term construing the will of Thomas W. McLeay, deceased, and directed judgment in favor of defendants.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered May 4, 1912, reversing a judgment in favor of plaintiff entered upon a verdict and granting a new trial in an action to recover cumulative penalties for violation of section 228 of the Forest, Fish and Game Law.</p>

<p>Appeal from a judgment of the Appellate Division óf the Supreme Court in the fourth judicial department, entered November 27, 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, his employer.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 21, 1912, which affirmed a decree of the Kings County Surrogate’s Court passing the accounts of the executors of John Boyle, deceased; also appeal from an order of said Appellate Division, entered June 21, 1912, which affirmed an order of said Surrogate’s Court denying a motion to resettle its decree in the above-entitled proceeding.</p>

1912, affirming a-judgment in favor of plaintiff entered upon the report of a referee in an action •• to recover for work done and materials furnished under a contract for public work.

Appeal in each of the above-entitled actions from an order of the Appellate Division of the Supreme Court in the second judicial department, entered April 26, 1912, 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 damages alleged to have been sustained by reason of a change of grade.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered January 23, 1912, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for personal injuries alleged to have been sustained through his being kicked by a horse belonging to defendant.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court, in the first judicial department, entered February 2, 1912, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of defendant in failing to keep its streets in repair.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 8, 1912, 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 on contract.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered July 15, 1912, affirming a judgment in favor of plaintiffs, but for less than the amount claimed, entered upon an award of the Court of Claims of damages arising from the permanent appropriation of lands for use of the barge canal.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 25, 1912, 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 recover an amount due for alimony.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 12, 1912, reversing a judgment in favor of defendant entered upon a verdict directed by the court and granting a new trial in an action to recover upon an indemnity bond.</p>

<p>Trial — erroneous refusal to charge in action for negligence.</p> <p>In an action to recover for the death of an employee through the alleged negligence of his employer, it is error for the court to refuse to charge that, “If the jury find that it was the duty of the ' intestate to remain on top of the structure and direct and watch over the men, and disregarding that duty he went underneath participating in the work, the defendant in that event owed him no duty to furnish a reasonably safe place in which to work.”</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 2'T, 1912, which affirmed an order of Special Term granting a motion by plaintiff for judgment in its favor upon the pleadings in an action to restrain the defendant from interfering with the plaintiff’s business or with the sale of its products.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered November 1, 1912, which affirmed an order of the court at a Trial Term denying a motion to set aside a verdict in favor of plaintiffs and for a new trial in an action to recover money alleged to be due under a contract for the sale of land. The following questions were certified: “First.

<p>Appeal from an order • of the Appellate Division of the Supreme Court in the fourth judicial department, entered October 20, 1911, which dismissed a writ of cer tiorari and affirmed a determination of the defendant Public Service Commission in granting a certificate that public convenience and a necessity require the construction of the proposed railroad of the Buffalo Frontier Terminal Railroad Company.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered December 30, 1912, which affirmed an order of Special Term sustaining a writ of habeas corpus and discharging the relator, who had been arrested and committed on the charge of keeping and maintaining a disorderly house, from custody.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered August 8, 1912, which reversed an order of Special Term confirming the report of commissioners of estimate and assessment in the above-entitled proceeding. The following questions were certified: “ 1. Did the orders of the court at Special Term entered on the 23d day of June, 1903, determine that the Kingsbridge road was legally closed. 2.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February 7, 1913, which affirmed an order of Special Term denying plaintiffs’ motion for judgment on the pleadings and sustaining demurrers to the complaint in an action to impress a trust upon certain merchandise. The following question was certified: “Does the complaint state facts sufficient to constitute a cause of action ? ”

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 3, 1913, which affirmed an order of Special Term overruling a demurrer to the complaint in an action for libel and for the use and publication of plaintiff’s name without his written consent in violation of section 51 of the Civil Rights Law. The following questions were certified: “1.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered May 1, 1912, which reversed an order of Special Term adjudging. the defendant in contempt of court for failure to pay alimony which had accrued during the pendency of an action for divorce, the complaint in which had been dismissed.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered October 4, 1912, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in a proceeding to condemn land for railroad purposes. 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 February 2, 1912, 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 for the death of plaintiff’s intestate alleged to have been occasioned through the defendants’ negligence in failing to keep the hallway of a tenement house lighted.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 20, 1912, which affirmed a judgment entered upon a decision of the court on trial at Special Term dismissing the plaintiff’s complaint, directing the cancellation of the bond and mortgage sought to be foreclosed, ordering canceled the deed given by the plaintiffs to the defendant Canadaway Fertilizer Company in May, 1907, requiring the plaintiffs to pay back to the defendant receiver substantially $9,500, and to further pay a second mortgage of $2,000 and interest placed on the property by the defendant Canadaway Fertilizer Company after the sale of the property and the making of the mortgage sought to be foreclosed in this action.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 3, 1912, 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 for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of defendant.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 9, 1912, which affirmed a judgment of Special Term in an action to construe and to determine the validity of the will of Benjamin Hart, deceased.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 13, 1912, which affirmed an order of the court at a Trial Term dismissing an alternative writ of mandamus to compel defendant to pay the relator for publication in his newspaper of notices of tax sales.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered June 5, 1912, 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 the death of plaintiff’s intestate alleged to have been occasioned through the negligence of defendant, his employer.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial • department, entered January 23, 1912, affirming a judgment in favor of plaintiff entered upon a verdict in an action of ejectment.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered October 14, 1912, which affirmed a judgment entered upon the report of a referee sustaining as valid the will of Louis 0. Hamersley, deceased.</p>

Cross-appeals from a judgment of the Appellate Divisioli of the Supreme Court in the first judicial department, entered December 19, 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 set aside an alleged fraudulent transfer.