Volume 209 — New York Reports

The nature of the action and the facts, so far as material, are stated in the opinion. The Andros patent of September 29, 1677, conveyed to the town of Oyster Bay title in fee simple to the lands under the waters of Cold Spring Harbor and Oyster Bay. (Robins v. Ackerly, 91 N. Y. 98; Lowndes v. Huntington, 153 U. S. 1; Town of North Hempstead v. Eldridge, 111 App.

The nature of the action and the facts, so far as material, are stated in the opinion. It was error to charge the jury that the bank would be protected if it paid the money upon the check in due course of business without notice of Callahan’s death. It was also error to refuse to charge that the bank was not authorized to pay the check unless it was accepted before the death of Callahan.

The nature of the action and the facts, so far as material, are stated in the opinion. The defendant was not guilty of negligence. (Stickles v. N. Y. C. & H. R. R. R. Co., 131 App. Div. 923; N. Y., N. H. & H. R. R. Co. v. Dailey, 179 Fed. Rep. 592.) Plaintiff’s intestate was guilty of contributory negligence as a matter of law. (Berry v. U. B. L. S. R. R. Co., 181 N. Y. 198; Moylan v. S. A. Ry.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 18, 1912, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial at Special Term.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The nonsuit granted by the trial court at the close of plaintiff’s case was error, for Clow at the time of the accident was acting within the scope of his employment as a matter of law. (Wright S. E. Works v. Lawrence Cement Co., 167 N. Y. 440; Ochsenbein v. Shapeley, 85 N. Y. 214.) If Clow was not acting within the scope of his employment as a matter of law, then it must be either because at the time of the accident he was serving his own independent ends or because he had become the servant ad Iiog of the Crown Mills, and whichever ground may be relied upon by the defendant in this court, the question was one of fact for the jury. (Sharp v. Erie R. R. Co., 184 N. Y. 100; Magar v. Hammond, 183 N. Y. 387; Mott v. C. Ice Co., 73 N. Y. 543; Cohen v. D. D., E. B. & B. R. R. Co., 69 N. Y. 170; Craven v. Bloomingdale, 171 N. Y. 439; Lynch v. Metropolitan El. R. Co., 90 N. Y. 77; Rounds v. D., L. & W. R. R. Co., 64 N. Y. 129; Blake v. Ferris, 5 N. Y. 48; Pack v. City of New York, 8 N. Y. 222; Wright S. E. Works v. Lawrence Cement Co., 167 N. Y. 440; Kellogg v. Church Charity Foundation, 203 N. Y. 192; Standard Oil Co. v. Anderson, 212 U. S. 215.)</p> <p>It has not heen shown that the relation of master and seivant existed between Clow and the defendant at the time and in respect to the very transaction out of which the injury arose, and defendant is not liable. (Wyllie v. Palmer, 137 N. Y. 257; McInerney v. D. & H. C. Co., 151 N. Y. 411.) There being no evidence that Clow was authorized or directed by defendant to work upon the feed or to in any manner interfere with it, defendant is not liable. (Flinn v. World’s Dispensary Medical Assn., 64 App. Div. 490.) • Under the facts proved the question of whether or not Clow was the servant of the Crown Mills or the servant of the defendant in doing the act from which the injury resulted, was purely a question of law for the court. (Wyllie v. Palmer, 137 N. Y. 248; McInerney v. D. & H. C. Co., 151 N. Y. 411; Flinn v. World’s Dispensary Medical Assn., 64 App. Div. 495.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The court had no jurisdiction to try the case because the court had formerly tried it and found against the plaintiff on her cause of action based on this policy, to which finding and judgment neither party ever excepted, nor were such findings ever vacated or set aside.

This action was brought to procure a dissolution of partnership between the plaintiff and defendant because, as alleged by the former, the latter had become incapacitated by reason of sickness from discharging his duties as such copartner. The parties had been copartners in the business of manufacturing and selling under a succession of partnerships from the year 1873 until on or about January 1, 1904.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 9, 1912, sustaining defendant’s exceptions, ordered to he heard in the first instance by the Appellate Division, and granting a motion for a new trial.</p> <p>This action was brought to set aside the probate of the will of Sarah R. Davenport, deceased. At the Trial Term a verdict was directed in favor of plaintiff.</p> <p>A will and codicil constitute one testamentary instrument, the signature, signature of witnesses and attestation clause, all of which are at the end of the codicil. (Brown v. Clark, 77 N. Y. 369; Matter of Knapp, 23 N. Y. Supp. 282; Matter of Storms, 3 Redf. 327; Matter of Miller, 11 App. Div. 337; Van Cortlandt v. Kip, 1 Hill, 590; Caulfield v. Sullivan, 85 N. Y. 153; Canfield v. Crandall, 4 Dem. 111; Cook v. White, 43 App. Div. 388; 167 N. Y. 588; Matter of Brewster, 72 App. Div. 587; Matter of Conway, 124 N. Y. 455.) A part of a will cannot be destroyed. (Lovell v. Quitman, 88 N. Y. 377; Matter of Curtis, 135 App. Div. 745; Matter of Barber, 92 Hun, 489.) The testatrix by the canceling and destroying of her signature destroyed her will and died intestate. (Matter of Clark, 1 Tuck. 451.)</p> <p>Revocation of the codicil did not operate to revoke the will. (6 Am. & Eng. Ency. of Law [2d ed.], 193; Black v. Jobling, L. R. [1 Prob. & Div.] 684; Matter of Savage, L. R. [2 Prob. & Div.] 78; Matter of Turner, L. R. [2 Prob. & Div.] 403; Gardiner v. Courthope, L. R. [12 Prob. & Div.] 14; Matter of Cook, 5 Penn. L. J. [Clark] 1; Matter of Stewart, 149 Penn. St. 111; Malone v. Hobbs, 40 Va. 346; Matter of Brookman, 11 Misc. Rep. 675; Matter of Francis, 73 Misc. Rep. 148; Jarman on Wills [6th ed.], 18.)</p>

Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 8,1913, reversing an order of Special Term in a proceeding to obtain the custody of an infant. Further facts appear in the opinion.

<p>(1.) Murder—Trial of defendant charged with murder of his wife—Evidence of premeditation and deliberation.</p> <p>On trial of defendant for the murder of his wife by shooting, the evidence showed that six attempts were made by him to discharge a revolver, four of which were successful, and, further, that the revolver was placed in the hand of the victim so as to simulate suicide, indicating the consciousness of having committed a premeditated crime. Sold, that the jury was justified in finding the premeditation and deliberation requisite to constitute the crime of murder in the first degree. (People v. Ferraro, 161 N. Y. 365, 375, followed.)</p> <p>(2.) Same—When evidence insufficent to establish fact that defendant HAD A PARAMOUR.</p> <p>It is well established that when a husband is charged with the murder of his wife it is competent to show his relations with a paramour for the reason that such evidence tends to establish the absence of affection for the wife and a motive for getting rid of her. The rule, however, does not extend so far as to permit proof for the same purpose of mere temporary intimacy with a prostitute, particularly where such intimacy existed at a time when the husband and wife were voluntarily living apart. (People v. Montgomery, 176 N. Y. 219, 225, distinguished.)</p> <p>(3.) Same—When participation of a new prisoner in making instruments FOR BREAKING JAIL NOT SUFFICIENT EVIDENCE OF ATTEMPT TO ESCAPE TO SHOW CONSCIOUSNESS OF GUILT.</p> <p>The mere participation of a new prisoner in the fashioning of a possible instrument of escape which previous inmates of the jail had begun to construct before his advent cannot be regarded as evidence of the guilt of such new prisoner within the rule which. permits an inference of guilt from an attempt to escape arrest or incarceration.</p> <p>(4.) Same.</p> <p>Evidence, although probative, may be too slight, conjectural or remote to be admissible or may complicate and confuse the case too much, the rule being that the law forbids unnecessary complication, delay and tediousness.</p> <p>(5.) Same—Alleged admission by deceased to defendant that she WAS PREGNANT BY ANOTHER MAN-IMPROPER EVIDENCE IN REBUTTAL THEREOF.</p> <p>Upon the cross-examination of the defendant, when questioned in regard to the statement which he attributed to his wife, and which was urged as indicating that he killed her in the heat of passion, that she was in the family way by another man, he answered : “ I had no other information as to her condition except what she told me, in no way, shape or form.” The district attorney contended that any fact which rendered it improbable that the wife would make such a statement in reference to her conduct was relevant to the issue. With this view, over objection and exception, he introduced in rebuttal the testimony of two women as to the condition of the wife’s clothing indicating that menstruation had not ceased at the period to which her alleged declaration referred; and, also, the testimony of two physicians who examined the remains of the wife, which had been exhumed during the trial at the direction of the district attorney, and ascertained from their examination of the uterus that the wife was not pregnant at the time of her death. Held, that while the non-existence of the facts said to have been declared by the wife is a circumstance of probative force tending to some extent at least to render it improbable that she actually made the statement attributed to her, such evidence introduces a collateral issue into the case tending to obscure the main issue in the minds of the jury and to protract the trial to an unreasonable extent, and hence was improperly admitted.</p>

<p>Negligence — licensees — liability and duty of owner to licensees—telephone company using, as a mere licensee, the pole of an electric light company to sustain telephone wires —employee of telephone company killed by current of electricity from telephone wires charged with heavy current from defectively insulated electric light wire — when electric light company not liable.</p> <p>1. The law recognizes two classes of licensees; the one class consists of those who act upon the invitation, express or implied, or the inducement of the owner or who necessarily enter on business with him, or in the discharge of a public or private duty; the other consists of those who act voluntarily, without invitation, express or implied, or inducement from the owner or not through a private or public duty. The duty of the owner to either class differs fundamentally from that to the other, and as to each it is clearly established and prescribed.</p> <p>3. To come under an implied invitation, as distinguished from a mere license, a visitor must come for a purpose connected with the business in which the occupant is engaged, or which he permits to be carried on there. There must at least be some mutuality of interest in the subject to which the visitor’s business relates, although the particular thing which is the object of the visit may not be for the benefit of the occupant.</p> <p>3. The death of the plaintiff’s intestate resulted from his contact with an electrically charged wire belonging to the defendant while upon one of its poles. The intestate was not an employee of or connected with the defendant, but was an employee of a telephone company, two of whose wires were fixed to the pole at its top and above the crossarms which supported defendant’s wires. The telephone wires were fixed to the pole of defendant without any arrangement or agreement between the companies or specific consent on the part of the defendant. The intestate received the shock from which his death resulted through contact with a defectively insulated part or the dangerous position of one of defendant’s wires. Held, that in using the pole the telephone company and its employees were mere volunteers or naked licensees who used the pole subject to all the concomitant conditions and perils and to whom the sole duty of the defendant was abstention from inflicting intentional or wanton or willful injury, and since there was on the part of the defendant no act of affirmative, intentional or willful misfeasance, fault or wrong, plaintiff cannot recover. (Braun v. Buffalo General Electric Co., 200 N. Y. 484, distinguished.)</p>

in the first judicial department, entered July 19, 1912, which affirmed a final judgment of Special Term in an action to procure a settlement of the accounts of the executors and trustees under the will of Thomas Lewis, deceased, and to obtain a judicial construction of certain provisions thereof, bringing up for review a prior order of the said Appellate Division, entered July IS, 1911, reversing an interlocutory judgment of Special Term.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered February 10, 1912, affirming a judgment in favor of defendant entered upon a verdict directed by the court. This action was brought to recover damages for the death of plaintiff’s husband through the alleged negligence of the defendant.

The nature of the action and the facts, so far as material, are stated in the opinion. It was error to submit the case under the Employers’ Liability Act. (Carron v. Standard Refrigerating Co., 138 App. Div. 723; Nappa v. Erie R. R. Co., 195 N. Y. 176; Fahey v. N. A. Gas Co., 134 App. Div. 611.) The errors in the charge require, a reversal of the judgment.

<p>(1.) Motor vehicles—Constitutional Law.</p> <p>In operating a motor vehicle the operator exercises a privilege which might be denied him, and not a right, and in a case of a privilege the legislature may prescribe on what conditions it shall be exercised. (People eco rel. Ferguson v. Reardon, 197 N. Y. 236, distinguished; Matter of Peck v. Gar gill, 167 N. Y. 391, explained.)</p> <p>(2.) Same—Operator of automobile must tell who he is to party * INJURED BY HIS MACHINE.</p> <p>It involves no violation of public policy or of the principles of personal liberty to enact that as a condition of operating such a machine the operator must waive his constitutional privilege and tell who he is to the party who has been injured or to the police authorities, if requiring him to give such information is an impairment of his constitutional privilege, which is not decided.</p> <p>(3.) Same—Highway Law (L. 1910, ch. 374, § 290, sued. 3, constitutional.</p> <p>The Highway Law (L. 1910, ch. 374, § 290, subd. 3) enacts, “ Any person operating a motor vehicle who, knowing that injury has been caused to á person or property, due to the culpability of the said operator, or to accident, leaves the place of said injury or accident, without stopping and giving his name, residence, including street and street number, and operator’s license number to the injured party, or to a police officer, or in ease no police officer is in the vicinity of the place of said injury or accident, then reporting the same to the nearest police station, or judicial officer, shall be guilty of a felony punishable by a fine of not more than five hundred dollars or by imprisonment for a term not exceeding two years, or by both such fine and imprisonment.” Meld, that this provision is not a violation of any constitutional privilege.</p>

Appeal by Delia A. Finnegan from an order of the Appellate Division of the Supreme Court in the second judicial department, entered May 9, 1913, which confirmed the report of' a referee, vacated a prior order of said Appellate Division directing payment of an award in this proceeding to said Delia A. Finnegan, and directed her to repay to the chamberlain of the city of New York the sum of $10,903.98 received by her under the order so vacated.

The nature of the action and the facts, so far as material, are stated in the opinion. The admission of the conversation between the witness Carlsen and the plaintiff’s decedent, Greener, was an error on the part of the trial court and highly prejudicial to the defendant. (Waldele v. N. Y. C. & H. R. R. R. Co., 95 N. Y. 274; Norris v. Interurban S. R. Co., 90 N. Y. Supp. 460; Hall v. Uvalde Asphalt Co., 92 N. Y. Supp. 46; Butler v. M. Ry.

The facts, so far as material, are stated in the opinion. There is no statute under which an award can be sustained for consequential damages due to the elevation of the New York Central on its own right of way. (Radcliff v. Mayor, etc., of Brooklyn, 4 N. Y. 195; Bennett v. L. I. R. R. Co., 181 N. Y. 432; City of Detroit v. D. U. Railway, 156 Mich. 106; Pratt v. City of Cleveland, 191 Fed. Rep. 65; Quinby v. City of Cleveland, 191 Fed.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial depart-. ment, entered February 26, 1913, which reversed an interlocutory judgment of Special Term overruling a demurrer to the complaint and sustained such demurrer, The following questions were certified: “ 1. Do the facts alleged as a first cause of action in the amended complaint herein constitute a cause of action against the defendants ? 2.

The relator applied to the Supreme Court for a writ of mandamus to compel the state comptroller to issue his warrant for the payment of salary to which the relator asserts he is entitled by virtue of his incumbency of the office of state commissioner of labor to which he claims to have been appointed by the governor on May 16, 1913; and the question is whether the relator was legally appointed to the office of commissioner of labor.

The nature of the action and the facts, so far as material, are stated in the opinion. The Appellate Division had no power to make, in effect, a new finding of fact and reverse another, and render judgment absolute upon the findings of fact of the trial court as thus modified and reversed.

Appeal, in the first above-entitled action, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 3, 1913, which reversed an interlocutory judgment of Special Term sustaining a demurrer to the complaint, and overruled such demurrer.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 10,1913, which affirmed an order of Special Term directing the defendant to issue a liquor tax certificate to the relator.</p> <p>The facts, as far as material, are stated in the opinion.</p> <p>The issuance of the certificate to the relator, upon the order of Mr. Justice Clark, was in violation of the provisions of the Liquor Tax Law (L. 1910, ch. 494, § 8, subd. 9). The county treasurer in the performance of his duty as a certificate issuing officer, was compelled to refuse to issue the certificate to the relator herein. (People ex rel. Belden Club v. Hilliard, 28 App. Div. 140; People ex rel. Leonard v. Hamilton, 27 Misc. Rep. 310; Matter of Bridge, 25 Misc. Rep. 213; 36 App. Div. 533; People ex rel. Apfel v. Casey, 66 App. Div. 211; People ex rel. Van Deusen v. McKee, 69 Misc. Rep. 35; Matter of Tonatio v. Deperino, 49 App. Div. 84; People ex rel. David Stevenson Brew. Co. v. Lyman, 67 App. Div. 446; Burn v. Hopper, 48 Misc. Rep. 180; People ex rel. Higgins v. Hegeman, 75 Misc. Rep. 163; People ex rel. Hickok v. Conley, 2 L. T. R. 607; People ex rel. Lawton v. Lyman, 33 Misc. Rep. 243.)</p> <p>The privilege and right annexed by statute to certain premises which were used for traffic in liquors on the 23d day of March, 1896, continues until the owner forfeits the right t j engage in such traffic. It inures to the benefit of the owner and cannot be divested by the secret act of a tenant. (Matter of Loper, 53 App. Div. 576.) The county treasurer can still issue two or more certificates for the same premises. (People ex rel. Fiore v. Clement, 128 N. Y. Supp. 573.)</p>

<p>Real property — easements ■— construction and effect of agreement for joint ownership and use of one lot, for an alley, by the owners of five adjacent lots — when owner of one of such lots, also the owner of a lot not covered by such agreement, cannot create an easement for such lot in said alley.</p> <p>1. It is a well-established principle of law that an easement in gross will not be presumed where it can fairly be construed to be appurtenant to land.</p> <p>2. A conveyance must be construed so as to give effect to the intent of the parties manifested by the language used, subject to the further rule that when the language used is susceptible of more than one interpretation the courts will look at the surrounding circumstances existing when the contract was entered into, the situation of the parties and the subject-matter of the instrument.</p> <p>3. An agreement was entered into in 1864 between various parties, owners either in severalty or in common of six city lots therein described and designated on the diagram in evidence as Nos. 1 to 6 inclusive, whereby they covenanted and agreed with each other and for and on behalf of the heirs and assigns of each party, that the parties thereto and their respective heirs and assigns should forever have and enjoy the use in common exclusive of all other persons of lot number five for the purposes therein mentioned. The agreement thus executed was recorded as a conveyance and was effectual as a grant to establish a perpetual easement in lot number five, ■which attached as an appurtenance to the remaining premises specified in the agreement. Thereafter one Ford became the owner of lot number three and of one equal undivided one-third interest in the fee of lot number five, and subsequently obtained title to lot number seven also shown on the diagram, which, though adjacent to lot number five, had no right of use therein as it was not referred to in the agreement of 1864. Ford conveyed to Kissam and others lot number seven, together with one equal undivided one-third part of lot number five. Following the description of the premises of lot number five the deed contained the following language: “ Reserving, however, to the said party of the first part [Ford] the right of using said alley [lot number five] in the manner provided in agreement recorded, etc. [agreement of 1864], it being the intention of parties of the first part hereto [Ford] to convey to the parties of the second part hereto all the rights, privileges and immunities contained in the agreement recorded [agreement of 1864] except as hereinbefore reserved.” Held, that upon considering the effect of the deeds and conveyances, and the acts and conduct of the parties in connection therewith, they did not divest Ford, his heirs and assigns of the use of lot number five as appurtenant to lot number three; that the deed executed by Ford to Kissam and others did not create an easement in gross in Ford, but the use of said lot number five appurtenant to lot number three continued in Ford during his lifetime and upon his death became vested together with lot number three in his heirs; that there was no extinguishment by any act of Ford in his lifetime of his rights in lot number five under the. agreement of 1864, which prevents his heirs at law, or their assigns, from asserting a right to the use of lot number five under said agreement; notwithstanding the fact that Ford owned the fee in lot number seven and an undivided one-third part in lot number five, he could not create or convey an easement in lot number five for the benefit of lot number seven for any purpose whatsoever.</p>

Supreme Court in the third judicial department, entered May 14, 1912, which affirmed an order of Special Term granting a motion for a peremptory writ of mandamus to compel the inspectors of election of a town meeting, where local option questions under the Liquor Tax Law were voted upon, to count certain ballots which were by them returned as void. The facts, so far as material, are stated in the opinion.

The demurrer interposed by the defendant specifies three grounds: “ First. On the ground that it appears on the face thereof that the grand jury by which it was found had no legal authority to inquire into the crime charged, by reason of its not being within the local jurisdiction of the county. Second.

<p>Corporation — stockholder’s contract that in case of disagreement the stocks owned by one of such stockholders should be purchased at the book value thereof — unauthorized reduction of such book value — court of equity cannot compel restoration of book value or enjoin changes in plan of bookkeeping.</p> <p>1. Where one stockholder contracts with another stockholder of a corporation for the purchase and sale of shares of stock at the book value as shown on the accounts of the corporation, such a contract does not require or justify the intervention of a court of equity in the management and control of the books of account of the corporation.</p> <p>2. On the organization of a corporation to which plaintiff paid in a sum in cash and one of the defendants assigned certain assets, it was agreed that in case of any breach of the agreement by the directors of the company, such defendant would purchase from the plaintiff at the latter’s election the shares of stock held by him at the existing book value of the same as shown at the time of such election. The relief demanded in this action is that the individual defendants and the defendant corporation be compelled to restore the books of account to their original condition, that the reduction of the value of the good will be canceled, and that the defendants and the corporation be enjoined from making or changing the accounts of the corporation or the books of account whereby the book value of the capital stock of the corporation be reduced contrary to the fact. Held, that the action cannot be maintained.</p>

The facts, so far as material, are stated in the opinion. So much of the ordinance as makes it a criminal offense for any person to receive or have in his possession • any receptacle for use in the transportation and delivery of milk, or cream which has not been washed after holding milk or cream, or which is unclean in any way, is unconstitutional.

<p>Bills, notes and checks—mere attachment of a bill of lading to a draft does not make it a part of such draft — presumptions arising from the acceptance or payment of such draft — forged bill of lading attached to draft — when payee not chargeable with knowledge of the forgery.</p> <p>1. The drawee of a draft who has paid the same to a bona fide holder for value relying in part upon purported bills of lading attached by the drawer to the draft, but not mentioned therein,. cannot, on discovery that the bills of lading are forgeries, recover back the moneys so paid from the payee or indorsee who has neither guaranteed the genuineness of said instruments nor been aware of their fraudulent character.</p> <p>2. The mere attachment of bills of lading to a draft does not make the former a part of the latter; one who accepts or pays such a draft must be assumed in the absence of special circumstances to do so on the faith of the draft itself, and reliance upon the bills of lading is not a fact which enters into the substance of the real transaction in accepting or paying the draft, but is an extrinsic fact.</p> <p>3. The plaintiffs, as drawees, paid the defendant, as indorsee from another bank, a draft for $39,000 drawn by a firm of cotton dealers in the south with forged bills of lading attached. There was nothing in the draft making reference to a bill of lading except the word “ Cotton ” lithographed in the body of the blank form. The forgeries were not obvious and were not disclosed to defendant until it had paid over the proceeds in the ordinary course of business to its indorsee. Held, that defendant became the owner and holder of the draft in the regular course of business for value and without notice of any fact or circumstance which made it chargeable with knowledge or of responsibility for the forgery of • the bills of lading.</p>

<p>Bills, notes and checks — right of payee of draft, upon insol- • vency of drawers, to the security of a fund which was to be created by the transfer to the drawees of a debt due to drawers from a third party — equitable rights of parties.</p> <p>1. On examination of the facts, upon the submission of a controversy as to the ownership of a certain fund, held, that the circumstances attendant upon the purchase of a draft by plaintiffs from defendants’ assignors' disclosed that plaintiffs had parted with their money to such assignors on the supposed security of a fu-nd to be created by the transfer by the drawers to the drawees of the debt of a third party; that the rights of plaintiff to the fund arising from the payment of that debt were, therefore, superior to those of general creditors of such assignor.</p> <p>2. The equitable doctrine is applied that, where the just and clear rights of a party to payment of a debt from a particular fund can be secured in no other way, the fund, or its proceeds, will be regarded as a trust for his better security.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 13, 1912, affirming a judgment in favor of defendant entered upon a verdict in an action for libel.</p> <p>On the 31st of July, 1909, the defendant published in its newspaper an article purporting to be an account of a proceeding in one of the Magistrates’ Courts in the borough of Brooklyn. A portion of that article is complained of as libelous, to wit:</p> <p>“ Lawyer Perry didn’t confine his comments to the case in hand, that of the pastor’s sudden draft on the church’s available funds, but told of a recent prayer meeting in a little church, which is situated in Erasmus street, during which he broadly hinted that the pastor got away with the collection.</p> <p>“ The lawyer said the colored flock had gathered for an evening of prayer and praise, and had donated generously when the collection plate had been passed. The plate was placed on the table on the pulpit, he said, when the Rev. Sedley Lee announced to the brethren and sis- ■ ters assembled, ‘ Let us pray.’ The mon'ey was all there before the pastor knelt at the table and crossed his hands in an attitude of devotion over the plate, but it was gone when the prayer had been concluded, the lawyer said. ”</p> <p>The proceeding thus reported was instituted by a so-called magistrate’s summons issued on the 29th of July,1909, by which the plaintiff was summoned to answer a complaint against him made by one Fannie Stubbs. No sworn complaint or information was filed and no warrant was issued. On the return day of the summons the plaintiff and the complainant each appeared with counsel. When the case was called by the magistrate each of the counsel stated his side of the case and the magistrate thereupon dismissed the proceeding without taking any testimony. The question submitted to the jury was whether the article was an honest and fair report of what took place before the magistrate.</p> <p>The hearing before the magistrate was not a “judicial proceeding.” (McKelvey v. March, 63 App. Div. 396; People ex rel. Livingston v. Wyatt, 186 N. Y. 383.) This case was erroneously tried by the court on the theory that anything said by the lawyer was privileged, whether true or not, and whether relevant or not. (Moore v. M. Nat. Bank, 123 N. Y. 420; Sandford v. Bennett, 24 N. Y. 28; Stuart v. Press Pub. Co., 83 App. Div. 467; Park v. Free Press Co., 72 Mich. 560; Metcalf v. Times Pub. Co., 40 Atl. Rep. 864; Byers v. M. Printing Co., 95 N. E. Rep. 917.)</p> <p>The article was a substantially accurate report of the occurrences in the Magistrate’s Court, and thereby constituted a fair and true report, and as such is privileged.. (Hart v. Sun P. & P. Co., 79 Hun, 358; Hughes v. N. Y. Eve. Post, 115 App. Div. 611; Williams v. Press Co., 49 App. Div. 35; D’Auxy v. Star Co., 31 Misc. Rep. 388; Lawyers’ Co-operative Pub. Co. v. West Pub. Co., 32 App. Div. 585; Code Civ. Pro. §§ 1907,1908.) The summons issued in the Magistrate’s Court was such process as is recognized in the courts of this state. (Matter of Hart, 131 App. Div. 661; People v. Markowitz, 119 App. Div. 841; People v. Jeratino, 62 Misc. Rep. 587; People v. Mulkins, 25 Misc. Rep. 599; Beiser v. Scripps-McRae Pub. Co., 68 S. W. Rep. 457; Stuart v. Press Pub. Co. 83 App. Div. 467.) The statement in the Magistrate’s Court by the witness Perry was privileged. (Youmans v. Smith, 153 N. Y. 214; Prescott v. Tousey, 21 J. & S. 56; Perzel v. Tousey, 20 J. & S. 79; Allen v. Crofoot, 2 Wend. 516; Beggs v. McCrea, 62 App. Div. 39; Marsh v. Ellsworth, 50 N. Y. 309; Sickels v. Kling, 31 Misc. Rep. 387; 60 App. Div. 515; Hastings v. Lusk, 22 Wend. 410; Maulsby v. Reifsnider, 14 Atl. Rep. 505; Willman v. Press Pub. Co., 49 App. Div. 35; Walls v. Walls, 32 Atl. Rep. 649; Seller v. Jenkins, 97 Ind. 430; Garr v. Selden, 4 N. Y. 91.)</p>

This action was brought to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of defendants, his employers The trial resulted in a verdict for the plaintiff and from the judgment entered thereon and an order denying a motion for a new trial defendants appealed. The Appellate Division reversed the said judgment and order and granted a new trial. The judgment was reversed on a question of law.

The action is to procure a judgment annulling the transfer by Alfred Costello and Patrick C. Costello, as trustees under the will of Patrick H. Costello, to John H. Costello of the trust estate, as devised, and determining through an accounting that the trustees should pay into the trust estate a large sum of money.

The nature of the action and the facts, so far as material, are stated in the opinion. A director may purchase the obligations of his corporation, matured or unmatured, for less than par and enforce them against the corporation for their full amount when there is no conflict of interest between him and the corporation with respect to the transaction.

The facts, so for as material, are stated in the opinion. Section 542 of the Code of Criminal Procedure has ordinarily been invoked to sustain convictions where the substantial rights of the defendant have not been invaded upon the trial.. It is equally applicable in favor of a defendant to reverse a conviction against him where errors upon the trial may have affected a substantial right.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 13, 1912, which reversed an order of Special Term setting aside as illegal and void a determination of the defendant commission assessing lands of the relator for a river improvement.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The main purpose of the project is to establish a new and complete system of drainage over a large area whereby the farm lands there can be made very productive and valuable, and the changes proposed in the creek are but an adjunct to the main purpose, whereby the creek can be made to serve as a better outlet for the new drainage district than it would be if left in its present condition. This is clearly a private enterprise, entered into for the private gain and advantage of the promoters, who are the petitioners, all of them the owners of lands which are sought to be drained. Because the main purpose of the project in question is a private one, the bringing of relator’s lands into the assessment district and imposing an assessment upon his land to defray part of the expense thereof is unlawful. (Brewster v. Rogers Co., 169 N. Y. 73; Noonan v. City of Albany, 79 N. Y. 470; Poth v. Mayor, 151 N. Y. 16; People v. Hagadorn, 104 N. Y. 516; Seifert v. City of Brooklyn, 101 N. Y. 136; Hoffmire v. City of Brooklyn, 162 N. Y. 584; People ex rel. Parker v. County Court, 55 N. Y. 604; Matter of Jacobs, 98 N. Y. 98; Matter of Chesebrough, 78 N. Y. 232; Stuart v. Palmer, 74 N. Y. 183; Brevoort v. Grace, 53 N. Y. 245; People ex rel. More v. Jefferson County Court, 56 Barb. 136; Matter of Van Buren, 79 N. Y. 384; Wiesmer v. Village of Douglas, 64 N. Y. 91.) The entire proceeding is void and unconstitutional because the general drainage laws, passed pursuant to the Constitution, prescribe what proceedings may be brought by the owners of agricultural lands for the drainage of the same over the lands of others, and the kind and nature of such proceedings, and because this proceeding is not brought under authority of said drainage laws, but in violation thereof. (Matter of Tuthill, 163 N. Y. 133.)</p> <p>The determination of the commissioners that the regulation of the Canaseraga was of sufficient importance to warrant the interference of the state was valid and cannot be attacked. (S. W. S. Comm. v. Curtis, 192 N. Y. 330; D. & H. C. Co. v. City of Buffalo, 39 App. Div. 333; People ex rel. v. Board of Health, 140 N. Y. 1; Matter of Church St., 49 Barb. 455; Matter of Cruger, 84 N. Y. 619; People ex rel. Cook v. Nearing, 27 N. Y. 306; Matter of Tuthill, 163 N. Y. 133-142.) The improvement was not illegal and void as a drainage scheme under special legislation forbidden by the Constitution. (S. W. S. Comm. v. Curtis, 192 N. Y. 328; People ex rel. Simpson v. Wells, 181 N. Y. 252; People ex rel. Cook v. Nearing, 27 N. Y. 306; Hartwell v. Armstrong, 19 Barb. 166; Beekman v. S. & S. R. R. Co., 3 Paige, 73; People v. Supervisors, 112 N. Y. 585; People v. Banks, 67 N. Y. 568; Matter of Woolsey, 95 N. Y. 135; Swikehard v. Michels, 8 Misc. Rep. 568; 81 Hun, 325; Foster v. Scott, 136 N. Y. 577.)</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered June 12, 1913, which affirmed an order of Special Term granting a motion for a peremptory writ of mandamus to compel defendant as county treasurer to execute certificates of indebtedness to provide for the payment of troops called forth in aid of the civil authorities by a Supreme Court justice.</p> <p>The facts, so far as material, are stated in opinion.</p> <p>Section 115 of the Military Law of the state of New York is unconstitutional and void. Each of the three departments of government is restricted to the exercise of its own legitimate functions; and unless a legal and constitutional warrant can be found, no one of the three shall be permitted to invade the domain of the others. (People ex rel. Sabold v. Webb, 23 N. Y. 329; People ex rel. Busby v. Howland, 155 N. Y. 270; People ex rel. Broderick v. Morton, 156 N. Y. 143; People ex rel. MacDonald v. Leubischer, 34 App. Div. 577; 54 N. Y. Supp. 869.) 'Section 115 of the Military Law imposes upon a justice of the Supreme Court the power and duty of calling for aid upon the military authorities in case of any breach of the peace, tumult, riot or resistance to process of this state, or imminent danger thereof, and when he exercises that power, puts such troops as respond to his call under his command and direction, and gives him the power and discretion, without any review, of determining the duration of their service and the duties which they are to perform. If this power and authority is a public trust, then it contravenes the provisions of section 18 of article 6 of the Constitution and is void. (Matter of Wood, 2 Cow. 29; People v. Hall, 169 N. Y. 184; Ayburn’s Case, 2 Del. 409; Matter of Attorney-General, 21 Misc. Rep. 101; Supervisors v. Briggs, 2 Denio, 33; Matter of Cooper, 22 N. Y. 67; Matter of Hathaway, 71 N. Y. 249; People ex rel. Scheu v. McWilliams, 185 N. Y. 95; People ex rel. Toms v. Bd. of Suprs., 199 N. Y. 154; Muhlenberg Co. v. Moreland, 49 S. W. Rep. 484; Flemming v. Dyer, 47 S. W. Rep. 444.) It is urged that as the orders under which the services were rendered were military in their nature the officers and members of the Fourth Brigade must necessarily obey them. That is not so. An officer or soldier is not bound to obey an unlawful command, and he does so at his own risk and cost. (United States v. Barreme, 2 Cranch [U. S.], 170; United States v. Carr, 1 Wood [U. S.], 480; Matter of Mulligan, 4 Wall. 120.)</p> <p>The order for aid made by Mr. Justice Brown is not assailable collaterally, and is conclusive as to the existence of the facts therein recited. (Ela v. Smith, 5 Gray, 121; Piper v. Pearson, 2 Gray, 120; Clarke v. May, 2 Gray, 410; City of Salem v. R. R. Co., 98 Mass. 444; Martin v. Mott, 12 Wheat. 19; Appeal of Hartranft, 85 Penn. St. 444.) The reposing in a Supreme Court justice of the power to make an order of this character is not repugnant to article 6, section 10, of the State Constitution. (Rex v. Pinney, 5 C. & P. 254; People ex rel. Lawrence v. Mann, 97 N. Y. 530; Matter of Steinway, 159 N. Y. 250.) The delegation of power to a Supreme Court judge to call out the Yational Guard is not the exercise of another office or public trust within the meaning of the Constitution. (People ex rel. Washington v. Nicolls, 52 N. Y. 478; People v. Hall, 169 N. Y. 195; Matter of Davies, 168 N. Y. 102.)</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 20, 1912, which affirmed a judgment rendered at a Trial Term, upon a verdict convicting the defendant of the crime of grand larceny in the first degree.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The court erred in receiving evidence by which it was intended to prove that another and similar crime had been attempted by the defendant. (People v. Governale, 193 N. Y. 581; People v. Sharp, 107 N. Y. 427; People v. Romano, 84 App. Div. 318; People v. Molineux, 168 N. Y. 264; People v. Marrin, 205 N. Y. 275; Marshall v. United States, 197 Fed. Rep. 511; Goresen v. Comm., 99 Penn. St. 388; People v. Zucker, 20 App. Div. 363; 154 N. Y. 774; People v. Dudenhausen, 130 App. Div. 760; People v. Sekeson, 111 App. Div. 490.) The court erred in allowing the witness Clark to corroborate his own testimony by proof of previous statements made to his own attorney. (Robb v. Hackley, 23 Wend. 50; Matter of Hesdra, 119 N. Y. 50; People v. Smith, 162 N. Y. 520; People v. Collier, 141 App. Div. 111; Jenkins v. City of Hudson, 40 Hun, 426, 428; Dudley v. Bollis, 24 Wend. 465; Smith v. Stickney, 17 Barb. 489; Comin v. Jenkins, 10 Gray, 485; Austin v. Bartlett, 178 N. Y. 310; People v. Wolf, 183 N. Y. 477; Connolly v. B. H. R. R. Co., 179 N. Y. 7.) The court erred in allowing the witness Birmingham to corroborate his own testimony by proof that he had previously testified to the same effect before the grand jury (Austin v. Bartlett, 178 N. Y. 310; Connolly v. B. H. R. R. Co., 179 N. Y. 7; People v. Wolf, 183 N. Y. 477.) The court erred in allowing.the district attorney to show that some of the men between whom and the defendant there had been certain business dealings had been either indicted or convicted of other crimes. (People v. Irving, 95 N. Y. 541; People v. Morrison, 195 N. Y. 116; People v. McGraw, 66 App. Div. 372.) The court erred in allowing the witness Schwed to testify that he had communicated to the defendant the opinion of a member of the Stock Exchange that the proposed transaction was criminal. (People v. Conrow, 200 N. Y. 356; People v. Cascone, 185 N. Y. 317; People v. Smith, 172 N. Y. 210.) The defendant duly excepted to the refusal of the court to charge as he requested, and such exception was sufficient. (McKinley v. Met. St. Ry. Co., 77 App. Div. 256; Connor v. M. S. Ry. Co., 77 App. Div. 384; Stephens v. Ely, 162 N. Y. 79.) The court erred in refusing the defendant’s forty-fifth, forty-sixth, forty-seventh and fifty-seventh requests. Each of these requests embodied a correct proposition of law, important for the defendant’s protection. It was a possible inference from the proof that the defendant, knowing that Clark and Sherwood were engaged in some irregular practice, was indifferent to their wrongdoing, or even secretly approved of it, but was unwilling to take part in it himself, or to share in its fruits. This may be an offense in morals; it is not a crime. O’Donnell v. Clinton, 145 Mass. 461; Stover v. People, 56 N. Y. 315.) The court erred in its charge that the testimony of accomplices, if corroborated, is entitled to great consideration. (People v. Ferraro, 161 N. Y. 379.) The court erred in refusing to charge, as a matter of law, that Birmingham was an accomplice. (Penal Law, § 1290.) The indictment charges the defendant as principal, and is not sustained by proof that he aided and abetted others, who were not indicted with him. (People v. Kane, 161 N. Y. 386; People v. Albow, 140 N. Y. 130; People v. Corbalis, 178 N. Y. 516; 1 Bishop Crim. Law, § 632; People v. Bliven, 112 N. Y. 79; People v. Patrick, 182 N. Y. 131; 183 N. Y. 52; People v. McKane, 143 N. Y. 455; People v. Coombs, 36 App. Div. 284; 158 N. Y. 532; People v. Seldner, 62 App. Div. 357; Mulligan v. Commonwealth, 84 Ky. 229.)</p> <p>The indictment is adequate. (People v. Phelps, 72 N. Y. 334; People v. Dorthy, 20 App. Div. 308; People v. Bliven, 112 N. Y. 79; People v. Peckens, 153 N. Y. 576; People v. Patrick, 183 N. Y. 52; People v. West, 106 N. Y. 293; People v. Weldon, 111 N. Y. 569; People v. Herlihy, 66 App. Div. 534; People v. Laurence, 137 N. Y. 517; People v. Knapp, 206 N. Y. 373.) There was no error in admitting Schwed’s testimony. (People v. Scott, 153 N. Y. 40; People v. McGuire, 135 N. Y. 639; People v. Youngs, 151 N. Y. 210; People v. Tice, 131 N. Y. 651; People v. O’Sullivan, 104 N. Y. 481; People v. Wagner, 180 N. Y. 58; People v. Weinseimer, 117 App. Div. 603; 190 N. Y. 537; People v. Molineux, 168 N. Y. 264; People v. Weisenberger, 73 App. Div. 428, 432; People v. Dolan, 186 N. Y. 4, 10; People v. Neff, 191 N. Y. 210, 226.) Throughout the cross-examination an attempt was made to convince the jury that Clark was prompted by a motive to make a false statement, and that he had turned state’s evidence and fabricated a story to save himself at Katz’s expense. Such being the condition at the close of the cross-examination, it became proper to receive Clark’s prior consistent statement. Where a witness is charged with giving his testimony under the influence of some motive prompting him to make a false or colored statement, it may be shown that he made similar declarations at a time when the imputed motive did not exist. (Matter of Hesdra, 119 N. Y. 615; Robb v. Hackley, 23 Wend. 50; Wigmore on Ev. §§ 1128, 1129; Comm. v. Jenkins, 10 Gray, 485; People v. Buchanan, 145 N. Y. 1.) The court properly refused to charge that Birmingham was an accomplice. (People v. Zucker, 20 App. Div. 363; 154 N. Y. 770; People v. Russo, 126 App. Div. 717.) The questions about Persch, Aldhouse and Adams were all proper. Katz’s position is quite similar to that of a good character witness. He was trying to convince the jury that he .was justified in believing that his associates were of good character. Hence, it was proper to test his belief by a cross-examination such as is legitimate in the case of a good character witness. (Wigmore on Ev. 1316, § 1111; Annis v. People, 13 Mich. 517; Abb. Tr. Br. [2d ed.] 166, 430; Carpenter v. Blake, 10 Hun, 358; People v. Jeffrey, 82 Hun, 409; People v. Elliott, 163 N. Y. 11; People v. Laudiero, 192 N. Y. 304; People v. Levine, 140 App. Div. 910; People v. Callahan, 73 Misc. Rep. 455.) The alleged exceptions to the refusals to charge are not such exceptions as confer jurisdiction upon this court. (People v. Stone, 117 N. Y. 480; People v. Zachello, 168 N. Y. 35; People v. Buddensieck, 103 N. Y. 487; People v. Hughes, 137 N. Y. 29; People v. Wiechers, 179 N. Y. 459; People v. Jackson, 196 N. Y. 357; People v. Johnson, 185 N. Y. 219; People v. Lumsden, 141 App. Div. 158; 201 N. Y. 264.)</p>

The facts, so far as material, are stated in the opinion. The deed from Thomas 0. Woolf, Joseph A. Woolf and John A. Woolf to Claus Young, dated July 19, 1855, did not include any part of the land within the boundaries of Walnut street on the Mount Eden map. The grant was limited to the exterior lines of Walnut street and Second avenue.

<p>Attorneys — power of Appellate Division to discipline attorneys and counselors at law for professional misconduct — appeals from Appellate Division—jurisdiction of Court of Appeals.</p> <p>1. The Appellate Division of the Supreme Court has long exercised jurisdiction to discipline attorneys and counselors at law who were guilty of professional misconduct, and by the statute as amended in 1912 (Judiciary Law, § 88, subd. 2, amd. L. 1912, eh. 258) the legislature simply gives expression to a more extended power and jurisdiction to that court than was expressed in the statutes as they existed prior thereto. The statute as amended does not purport to take away the jurisdiction of this court on appeals from orders in proceedings to punish attorneys, neither can an intention to that effect be inferred therefrom.</p> <p>2. Money paid for the reasonable expenses of an investigator to ascertain the names of witnesses and their knowledge on the subject under consideration, and for investigation by an expert for the purpose of making such expert a witness upon a trial, constitute legitimate expenditures by a person or corporation charged with liability by reason of negligence or for any other cause, and such reasonable payments are not subject to criticism and do not justify a charge against an attorney who approves the same. 3. In a proceeding of this character the power to review ends in this court when it appears that the proceeding has been instituted and conducted in accordance with the statutes and rules authorizing it; that no substantial legal right of the accused has been violated; that no prejudicial error has been committed in the reception or exclusion of testimony, and that there is some evidence to sustain the findings upon which the order is based.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The death of Sargent terminated the contractual relation which prior thereto had existed between him and McLeod and the latter then had the right to settle and owed no obligation to Sargent’s administratrix. (Badger v. Celler, 41 App. Div. 599; Roake v. Palmer, 119 App. Div. 64; Johnson v. Ravitch, 113 App. Div. 810; Dolan v. Rogers, 149 N. Y. 489; Matter of Robins, 61 Misc.

<p>Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered May 21, 1913, which reversed 'an order of Special Term granting a motion by defendants for judgment on the pleadings and denied said motion.</p> <p>The following questions were certified:</p> <p>“ 1st. Does the first count of the complaint set forth a cause of action %</p> <p>“ 2d. Does the second count of the complaint set forth a cause of action ?</p> <p>“3d. Does the third count of the complaint set forth a cause of action ? ”</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The contract for the purchase of the coal as alleged in this cause of action is entirely an executory one. It was to furnish coal after the making of the Contract, and the plaintiffs, by the proper officers, had authority upon the delivery of the coal to reject it as not coming up to the terms of the contract, had the right to refuse delivery and to refuse payment. (Fletcher v. Peck, 6 Cranch, 87; Farrington v. Tennessee, 95 U. S. 679; Justice v. Lang, 42 N. Y. 493; 2 Kent’s Comm. 449; Fox v. Kitton, 19 Ill. 519; Watkins v. Migen, 118 Ga. 372; Keokuk v. F. W., etc., Co., 90 Iowa, 67; Hatch v. Standard Oil Co., 100 U. S. 124; Fukenwider v. Rowan, 136 Ala. 287; McDonald v. Hewitt, 15 Johns. 349; Fozel & Co. v. Brubaker, 122 Penn. St. 7; McFadden v. Henderson, 128 Ala. 221; Coplay Iron Co. v. Pope, 108 N. Y. 232.) The state, in its contracts with individuals, must be judged and must abide by the rules which govern similar cases between individuals. (People v. Stephens, 71 N. Y. 527; Danolds v. State, 89 N. Y. 36; Baird v. Mayor, etc., 96 N. Y. 567; French Republic v. Vichy, 191 U. S. 427.) The state fully accepted the coal in question by its proper officers, and paid for the same after full knowledge of its character, and, therefore, it cannot now maintain an action based on the claim that it was defrauded by the quality of the coal delivered. ' (Adams v. Sage, 28 N. Y. 103; Brown v. Leach, 107 Mass. 364; Schumaker v. Mather, 133 N. Y. 590; Slaughter v. Gerson, 13 Wall. 379; Coplay Iron Co. v. Pope, 108 N. Y. 232; Studer v. Bleistein, 115 N. Y. 316; Fairbank v. Metzger, 118 N. Y. 260; Meagley v. Hoyt, 125 N. Y. 771; Mason v. Smith, 130 N. Y. 474; Waeber v. Talbot, 167 N. Y. 48.) As to the second cause of action the complaint should be dismissed. The only allegation of fraud as to the contract is a conclusion of law that they fraudulently and unlawfully induced the warden to enter into a.written contract. Whether any contract entered into'was induced by fraud depends upon the facts, and if dependent upon facts the facts must be alleged. (Cooper v. Goldman, 76 N. Y. 289; Wood v. Amory, 105 N. Y. 278; Knowles v. New York, 176 N. Y. 430; Reed v. Clark, 41 Hun, 410; Riddle v. Bank, 145 App. Div. 207.) The rights of the parties were fixed by the contract made between them and the performance by the defendants of the part of the contract to be performed by them. The contract having been fulfilled by the delivery of the coal, no false statement made by the defendants to the warden to induce him to pay the money that was actually and honestly due to them, even if they were made, can have the slightest effect on the situation. (Thompson v. Menck, 2 Keyes, 82; Deobold v. Oppermann, 111 N. Y. 531.)</p> <p>The complaint in this action states facts sufficient to constitute a cause of action. (Code Civ. Pro. § 1969; People v. Ingersoll, 58 N. Y. 1; People v. Tweed, 63 N. Y. 202; People v. N. Y. & M. D. Ry. Co., 84 N. Y. 565.) The action is to recover the money paid to the defendants as an over-payment for the coal delivered. It is in effect an action to recover money had and received, and the money having been wrongfully received, there is an implied contract to repay the same. The gravamen of the complaint is the receipt, possession and unjust detention of moneys and the action-is an action on contract. The allegations in the complaint, that the money was obtained upon false, fictitious and fraudulent bills presented, is not so much a part of the cause of action as a description of the method of the wrongful obtaining of the money. (People v. Wood, 121 N. Y. 522; People v. Peck, 57 How. Pr. 315; People v. Sutherland, 207 N. Y. 22.) Section 1969 was enacted for the purpose of enabling a recovery in just such a case as the one at bar. (People v. Ingersoll, 58 N. Y. 1; People v. Tweed, 63 N. Y. 202; People v. Wood, 121 N. Y. 522; People v. Peck, 57 How. Pr. 315.) The acceptance and use of the coal delivered was not a waiver on the part of the state. (Nelson v. Mayor, etc., 131 N. Y. 4; Village of Fort Edward v. Fish, 156 N. Y. 363.)</p>

<p>Executors and administrators — transfer of stock — when ancillary executor of non-resident, having shares of stock in foreign corporation, within this state, may compel New York transfer office of said company to issue certificate to transferee named by such executor.</p> <p>1. Ancillary administration in this state is regulated by statute, and an ancillary executor or administrator has the same general powers as a domestic executor or administrator, except in disposing of the decedent’s real property for the payment of his debts and funeral expenses.</p> <p>2. At the time of the death of the decedent, a non-resident, there was located in this state and came lawfully into the plaintiff’s possession as her executor a certificate of shares of capital stock of the defendant corporation, issued by the defendant in the name of such decedent, and which were standing on the stock transfer books of the defendant in her name at the time of her death. The plaintiff caused to be tendered to the defendant at a stock transfer office maintained by it in the city of New York such certificate, and offered to surrender it to the defendant, and demanded that a new certificate be issued in the name of a transferee, to the end that said certificate and the shares of stock represented thereby might be duly transferred. The defendant refused so to do upon the ground that the plaintiff could only assert his title to the stock which he has derived from the testatrix, in the state of New Jersey, under whose laws defendant was incorporated. Held, that the fact that the defendant maintains in the city of New York an office for the purpose of receiving certificates of its corporate stock for transfer upon its books and of delivering new certificates when such transfers have been made, constitutes New York the domicile of the corporation, so far at least as the registry and transfer of shares therein are concerned.</p> <p>3. Authorities as to the situs of the shares of stock in question considered and distinguished.</p>

<p>Statutory construction — presumption as to intention of legislature in enactment of statute — transfer tax — provision of Tax Law preventing accounting by executor on non-payment cannot be enforced if no moneys of the estate can be collected.</p> <p>1. It is always presumed, in regard to a statute, that no unjust or unreasonable result was intended by the legislature. Hence, if, viewing a statute from the standpoint of the literal sense of its language, it works such a result, an obscurity of meaning exists, calling for judicial construction, and where a particular application of a statute will occasion great inconvenience or produce inequality or injustice, another and more reasonable interpretation is to be sought.</p> <p>2. To effect the intention of the legislature the words of a single provision may be enlarged or restrained in their meaning and operation, and language general in expression may be subjected to exceptions through implication.</p> <p>3. Where, after a hearing upon proper notice to all parties interested, it is adjudged that an executor has been unable to collect the moneys for the payment of a tax imposed under the Transfer Tax Law from the transferred property, through the destruction of the property or obliteration of its value during the process of administration, without fault or delinquency upon his part, the executor is not personally liable for the tax, and the provisions of section 236 of the Tax Law with reference to his final accounting are not applicable.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 7, 1913, which affirmed an order of Special Term granting an application of the respondent for leave to intervene and be made a party defendant.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 10, 1912, unanimously affirming a judgment in favor of plaintiff entered upon a verdict. The nature of the action and the facts, so far as material, are stated in the opinion.

The nature of the action and the facts, so far as material, are stated in the opinion. Whether or not defendant was guilty of negligence in failing to adopt any precautions to prevent the attempted simultaneous operation of the elevator by employees on different floors was a question of fact for the jury. (Froelich v. City of New York, 199 N. Y. 466; Nichols v. Searle Mfg. Co., 134 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The courts have full power to review any action or proceeding of an association and that power will be exercised when such association has proceeded contrary to natural justice or where there is any prejudice or passion or caprice evident, or where there were insufficient grounds for the action taken. (Neukirch v. Keppler, 56 App. Div. 225; Young v. Eames, 78 App.

, to deliver to the petitioner, as clerk of the Municipal Court, city of New York, second district, borough of Brooklyn, the books, papers, records and accounts appertaining to such office. The facts, so far as material, are stated in the opinion. The petitioner is the duly appointed and duly qualified clerk of the Municipal Court of the city of New York, second district, borough of Brooklyn.

This action was brought by the plaintiff, respondent, to recover for money alleged to have been expended and labor alleged to have been performed in and in connection with the purchase of about 18,000 acres of coal land in Ohio for or on behalf of the Little Kanawha Syndicate or the defendants, appellants, as managers of said syndicate.

<p>Cross-appeals, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 22, 1913, which affirmed so much of an interlocutory judgment of Special Term as overruled a demurrer to the first separate defense contained in the answer, and reversed so much of said judgment as overruled a demurrer to the second defense contained therein.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>There is no consideration to create and support any obligation on the part of the plaintiff to maintain his adult and married daughters during their natural lives. (Popper v. Bingham, 20 Misc. Rep. 173; Read v. French, 28 N. Y. 285; 20 Ency. Pl. & Pr. 650; Dunning v. Leavitt, 85 N. Y. 30, 35; Vrooman v. Turner, 69 N. Y. 280; Strough v. Brown, 38 Hun, 307; First Nat. Bank v. Chalmers, 39 Hun, 468; Parmelee v. Thompson, 45 N. Y. 58; Pfeiffer v. Adler, 37 N. Y. 164; 6 Am. & Eng. Ency. of Law [2d ed.], 673; Welch v. Graham, 124 N. Y. Supp. 945; Wood v. Wood, 61 App. Div. 96.) The stipulation so far as obligatory has been performed and has expired. It is merely executory in its promises to pay money and transfer property. The amusement company stock was pledged merely as security, and every enforceable obligation for which it was at any time held has been fully performed and discharged. The stipulation did not create any trust in favor of the adult married daughters and no right of detention of the stock now exists. (Gregory v. Morris, 96 U. S. 619; Kinnan v. S. C. Club, 26 App. Div. 213; Matter of Newcomb, 18 N. Y. Supp. 16; Boardman v. L. S. & M. Ry. Co., 84 N. Y. 177; Manning v. Q. Mining Co., 24 Hun, 360; Vail v. Hamilton, 85 N. Y. 453; Richardson v. Abendroth, 43 Barb. 162; Farwell v. I., etc., Nat. Bank, 90 N. Y. 483; Markham v. Jaudon, 41 N. Y. 235; Adderly v. Storm, 6 Hill, 624.) To give the stipulation the effect claimed for it by the defendant is to render its provisions void and contrary to public policy, and, therefore, unavailable as the foundation for any claim or right by the defendant. (Werner v. Werner, 153 App. Div. 719; Lake v. Lake, 136 App. Div. 47; Speck v. Dansman, 7 Mo. App. 165; Trust Co. v. Nash, 56 Misc. Rep. 295; Taylor v. Taylor, 32 Misc. Rep. 312; France v. France, 79 App. Div. 291; Train v. Davidson, 20 App. Div. 577.)</p> <p>The stipulation of May 3, 1911, created a valid irrevocable trust in favor of Rose Hammerstein Tostevin and Stella Viola Hammerstein, and a special property in the certificates of stock in the Trust Company of America, as trustee. (Brown v. Spohr, 18 N. Y. 201; Martin v. Funk, 75 N. Y. 134; Day v. Roth, 18 N. Y. 448; Barry v. Lambert, 98 N. Y. 300; Cochrane v. Schell, 140 N. Y. 516; Hirsh v. Auer, 146 N. Y. 13; Perry on Trusts, § 98; Fowler’s Personal Property Law, 37; Chaplin on Express Trusts & Powers, 307; Gilman v. Reddington, 24 N. Y. 9; Gilman v. McArdle, 99 N. Y. 451; Matter of Wilkins, 183 N. Y. 104, 108; Kelley v. Snow, 185 Mass. 288.) The stipulation is not contrary to public policy, or illegal or void for any reason, and the facts averred in the first affirmative defense to which the demurrer was interposed constitute a complete defense to the cause of action. (Galucia v. Galucia, 116 N. Y. 635; Levy v. Levy, 149 App. Div. 561; Werner v. Werner, 153 App. Div. 719; Henry v. Allen, 77 Hun, 49; Vincent v. Moriarity, 31 App. Div. 484.)</p>

The facts, so far as material, are stated in the opinion. An unreasonable ordinance or one oppressive to trade and commerce, enacted even under a “specific” power to enact, is void. (Ford v. Standard Oil Co., 32 App. Div. 596; Brooklyn R. R. Co. v. Brooklyn, 37 Hun, 413; People v. Jarvis, 19 App. Div. 466; Eckhardt v. Buffalo, 19 App.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 26, 1912, modifying and affirming as modified a judgment in favor of plaintiff entered upon a verdict. The nature of the action and the facts, so far as material, are stated in the opinion. The judgment roll in the divorce action of Hendrick v. Hendrick was absolutely inadmisssible, either conclusively or even presumptively.

Dodge, deceased. The facts, so far as material, are stated in the opinion. The defendant and appellant, Sarah G. Bevillard, being a party to the action brought by the trustee, Arthur P-Bartholomew, and the same question being at issue in that action as in this and decided adversely to her contention in this, is bound by the judgment in that action. (House v. Lockwood, 137 N. Y. 259; Stokes v. Stokes, 155 N. Y. 592; Reynolds v. Ætna Life Ins.

The facts, so far as material, are stated in the opinion. Upon the facts in the case at bar, the rules of law applicable to cases wherein the language of the will is broad enough to include all stock dividends, and cases of ordinary or even extraordinary cash dividends, or their equivalents, are inapplicable.

• The facts, so far as material, are stated in the opinion. The adverse possession by the appellant of substantially the entire premises described in the complaint disentitles respondent from maintaining this action. (Florence v. Hopkins, 46 N. Y. 182; Sullivan v. Sullivan, 66 N. Y. 37; Haskell v. Queen, 21 N. Y. Supp. 357; Dawson v. Campion, 24 Misc.

The facts, so far as material, are stated in the opinion. The state board of tax commissioners properly included the value of the pavement in the assessment. (People ex rel. M. S. Ry. Co. v. Tax Comrs., 174 N. Y. 417; People ex rel. N. Y. C. & H. R. R. R. Co. v. Woodbury, 203 N. Y. 167; People ex rel. D. & F. R. R. Co. v. Cassity, 46 N. Y. 46; People ex rel. N. Y. El. R. R. Co. v. Comrs. of Taxes, 82 N. Y. 459; People ex rel.

The facts, so far as material, are stated in the opinion. The amount contributed by the relator for the construction of the Westfield viaduct did not justify the defendant in assessing that viaduct to the relator as a part of its tangible property. (People ex rel.

<p>Appeal from a judgment, entered November 15, 1912, upon an order of the Appellate Division of the Supreme Court in the third judicial department, which reversed an order of the court at a Trial Term setting aside a verdict in favor of plaintiff and granting a new trial and reinstated said verdict in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of defendant.</p>

Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the second judicial, department, entered December 15, 1911, reversing a judgment in favor of defendants entered upon a decision of the court on trial at Special Term and granting a new trial in an action to establish title to real property. The motion was made upon the ground that the Court of Appeals was without jurisdiction to entertain the appeal.

Motion by respondents to recall remittitur and dismiss appeal. Motion by appellant for permission to apply for an order directing the entry nunc pro tunc of judgment upon the decision and order of the Appellate Division. (See 208 N. Y. 131.)

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February ‘l, 1913, which affirmed an interlocutory judgment of Special Term overruling a demurrer to the answer in an action for an accounting. The following questions were certified: “(1) Does the amended complaint in this action state facts sufficient to. constitute a cause of action?

Cross-appeals from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January II, 1913, modifying and affirming as modified a judgment of Special Term in an action for a partnership accounting.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 3, 1912, which modified a judgment of Special Term by striking out such part thereof as dismissed the complaint and adding thereto provisions construing the will of Timothy H. Pettit, deceased.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered August IT, 1912, which affirmed a judgment of Special Term construing the will of Simon Frankel, deceased. Also motion to dismiss said appeal.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered March 12, 1913, which reversed an order of Special Term sustaining a demurrer to and quashing an alternative writ of mandamus and overruled such demurrer. The following question was certified: “Does the alternative writ of mandamus in this proceeding, upon the face thereof, constitute facts sufficient to constitute a cause of action ? ”

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 9, 1913, which affirmed an order of Special Term dismissing a writ of habeas corpus.</p>

Borst as the nominee for justice of the Supreme Court upon the Socialist ticket in the fourth judicial district and granted said motion.

Appeal, by permission, in each of the above-entitled actions from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 15, 1913, which reversed an order of the Appellate Term affirming’ an order of the City Court of the City of New York granting a motion by defendants for judgment on the pleading’s in an action by judgment creditors of the Wyckoff Holding Company, a domestic corporation, against the former directors and…

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 20, 1913, which reversed an order of Special Term directing the commissioners of estimate and assessment to ascertain and determine the compensation, if any, to be made to appellant herein for loss and damage to his premises.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered March 28, 1913, which affirmed an interlocutory judgment of Special Term in an action of partition. The following questions were certified: “I. Was the devise of the remainder in the tenth clause of the will of Charles Wilson, a devise to a class to take effect in possession upon the termination of the preceding life estates? “ II.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 29, 1913, which affirmed an order of Special Term overruling a demurrer to the complaint and granting a motion by plaintiff for judgment' on the pleadings in an action on a bond. The following question was certified: “ Have causes of action been improperly united in the complaint ? ”

Appeal by the defendant Thom, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 9, 1911, which reversed an order of the court at a Trial Term setting aside a verdict in favor of plaintiff against the defendant Thom, unless the plaintiff stipulated to reduce the same and reinstated the said verdict in an action to recover for personal injuries alleged to have been sustained through the negligence…

Franchetti is a valid execution of a power conferred by the will of Adolph Hallgarten to direct the disposition after her death of one-half of the share held in trust for her during her life under the terms of said will.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered May 23, 1913, which affirmed a decree of the Westchester County Surrogate’s Court settling the accounts of Anson Baldwin as trustee under the will of Abijah Curtiss, deceased.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 28, 1911, affirming a judgment in favor of defendant entered upon a verdict directed by the court in an action to recover for an alleged breach of contract.</p>