Volume 21 — Bedell

This action was brought to recover damages for the death of plaintiffs intestate, alleged to have been caused by the negligence of the defendant. The accident which caused the death occurred on the afternoon of Sunday, September 23rd, 1900. At that time the intestate was a laborer in the employ of the defendant, a corporation engaged in the business of supplying steam for motive and heating purposes by means of pipes laid under the streets of the city of ¡New York.

The facts, so far as material, are stated in the opinion. The city of New York is a tax district. (People ex rel. McHarg v. Gaus, 169 N. Y. 19; Wilcox v. City of Rochester, 129 N. Y. 247; People ex rel. Beaman v. Feitner, 168 N. Y. 365.) A person can be taxed only in the tax district in which he resides, where the assessment must be made for all personal property owned by him, or under his control as agent, trustee, guardian, executor or administrator.

The nature of the action and the facts, so far as material, are stated in the opinion. It was physically impossible for the accident to have happened as the plaintiff says it happened. (Matter of Harriot, 145 N. Y. 540; Dolfni v. E. R. R. Co., 178 N. Y. 1; Hudson v. R., W. & O. R. R. Co., 145 N. Y. 408; Swart v. N. Y. C. & H. R. R. R. Co., 81 App. Div. 402; affd., 177 N. Y. 529; McKinley v. M. St. Ry. Co., 91 App.

<p>Pleading—Demurrer. A complaint, in an action brought by the trustee of a bankrupt to recover moneys collected by a stock exchange association from debtors of the bankrupt, is not demurrable because it does not allege that such moneys were not paid to the bankrupt or to his assignee for the benefit of creditors, whom the trustee superseded, where the association could not properly pay the funds so collected to the bankrupt, for the reason that the same were collected after he had made the assignment, and it must he assumed from the complaint that they were not paid to the assignee.</p>

This action was brought to recoyer damages for personal injuries which the plaintiff claims to have sustained by reason of the defendant’s alleged negligence. The defendant owns and operates a large plant at ^Niagara Falls, M. Y., for the manufacture of paper, and the plaintiff was there employed as a common laborer. The accident which caused the injuries complained of occurred at about 4 o’clock in the morning of the 8th of January, 1900.

<p>1. Appeal—Reargument of Capital Case. While in capital cases appellants will not be held to the rule that points alleged to have been overlooked by the court and made the basis of a motion for reargument must have been raised by counsel on the argument, yet, where no important objection has been overlooked, the motion must be denied; the fact, however, that exceptions raised upon the trial are not specifically alluded to or separately discussed in the prevailing opinion does not indicate that they were not considered before the decision of the appeal.</p> <p>2. Relationship Between Judge and Public Officer Who Opposed Motion for New Trial. The relationship of father and son, existing between a judge and one whose sole connection with a capital case is that, as an assistant district attorney, he opposed defendant’s motion for a new trial upon the ground of newly-discovered evidence, does not legally disqualify the judge from taking part in the hearing and decision of an appeal; nor does such relationship render it improper for him to sit in the case or justify him in refusing to do so; a motion for a reargument, therefore, based upon such alleged impropriety must he denied, especially as an objection of this character must be taken at the commencement of the argument and not delayed until an unfavorable decision of the appeal.</p>

<p>1. Surrogate’s Court — Foreign Will—Ancillary Letters — Code Civ. Pro. § 2695. A surrogate has no jurisdiction to issue ancillary letters of administration upon a will admitted to probate in a foreign state, unless the petition is accompanied by a copy of the will and a copy of the foreign letters if any were issued. (Code Civ. Pro. § 2695.)</p> <p>2. Same — Code Civ. Pro. § 2697. Where letters testamentary have been issued in the foreign state to the executor named in the will the surrogate has no jurisdiction to issue to another person ancillary letters unless he files with his petition an instrument executed by the executor authorizing the petitioner to receive them. (Code Civ. Pro. § 2697.)</p> <p>3. Right of Ancillary Administrator to Maintain Action. The appointment of a petitioner who has failed to observe these requirements, as ancillary administrator of a foreign will, is void and gives him no standing to maintain an action in the courts of this state.</p>

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

The action was brought to recover damages of the defendant for having negligently caused the death of the plaintiff’s intestate. The negligence alleged is that, while the deceased was lawfully and rightfully upon the defendant’s railroad tracks, one of its trains, through carelessness in operation, came into collision with him. The accident occurred in a part of the city of Buffalo, where the defendant’s tracks cross an unoccupied tract of land between city streets.

The nature of the action and the facts, so far as material, are stated in the opinion. ' A manufacturer is liable to third persons with whom no contractual relation exists, for defects in his articles which are such as render the article in itself imminently dangerous to human life. (Devlin v. Smith, 89 N. Y. 477; Coughtry v. G. W. Co., 56 N. Y. 124 ; Kahner v. O. E. Co., 96 App.

This' action was brought upon a promissory note, of which the following is a copy : “$1,500. Hew York, June 'Ith, 1898. “Four months after dato I promise to pay to the order of myself Fifteen Hundred Dollars at Ho. 4 Warren Street, Hew York. Value received.” ' (Signed) “ D. M. KELLOGG.” .

The plaintiff, a foreign corporation organized under the laws of West Virginia, sued for the price of a cargo of coal, which it had sold and delivered to the defendant, in the city of Mew York. The defense to the suit was that, as the plaintiff was doing business in this state, without having procured from the secretary of state the certificate required by section 15 of the General Corporation Law, it could not maintain any action upon its contracts.

<p>1. "W ill — Trust of Personal Property — Discretion of Trustee. A bequest of a specified sum of money to an executor “to be by him invested and to be paid, togetherwith the increase thereof,” to a son of the testator, “ or to his wife or children, at such times, in such sums and in such manner as such executor may deem best for the interest ” of such son, creates a valid trust of personal property, covering both principal and interest of the fund, and authorizes the executor, in the exercise of his sound discretion, in good faith, to pay over the whole or any part of the principal of the fund to the testator’s son, or his wife or children, at such times, in such sums and in such manner as such executor may deem best for the interest of that son.</p> <p>8. Same — Trustee Appointed to Succeed First Trustee. Where the will creating such trust provided that if the executor therein appointed to execute the trust should, at any time prior to the full completion thereof, cease to act as such executor, two persons therein named should be appointed to act in his stead; and such executor, after administering the trust for a period of ten years, resigned and the Surrogate’s Court appointed one of J;he two persons, the other having renounced, to succeed the first executor, the latter may exercise the inherent discretion given by the will, as part of the trust, notwithstanding that the one named with her did not qualify.</p> <p>3. Same— When Payment of Trust Fund to Cestui Que Trust Is Justifiable — Evidence—Effect of Bad Faith in Execution of Trust. Where the new trustee, having paid the principal of the trust fund to testator’s son, instituted a proceeding for the judicial settlement of her accounts, in which the wife and children of testator’s son appeared and opposed the allowance of any part of the principal so paid upon the ground that the new trustee had no power to make such payment, and also because she acted in bad faith and with full knowledge that testator’s son, by reason of dissipation, was unfit to do business or have control of the fund and would waste and squander the same, it is erroneous to exclude evidence in regard to the trustee’s bad faith upon the ground that in no event was the trustee authorized to pay any part of the trust fund to testator’s son, since all payments made in good faith should be allowed,- but every payment made in bad faith should be disallowed and restitution required.</p>

The facts, so far as material, are stated in the opinion. The fees and commissions on court trust funds and on state tax, including state school moneys received, retained by and and paid to relator during his two terms in office as county treasurer of the county of Steuben, which included six consecutive years from January 1, 1895, to December 31, 1900, both inclusive, are the property of the relator.

The nature of the action and the facts, so far as material, are stated in the opinion. The testimony failed to show that the projection of the flagstone was caused by any act of the appellant, and the learned trial court erred in charging that there was some evidence that the appellant itself, or through its employees, caused the had and defective condition of the sidewalk.

The nature of the action and the facts, so far as material, are stated in the opinion. It was error not to have granted the defendants’ motion for a nonsuit at the close of the plaintiff’s case or directed a verdict in favor of the defendants after all the testimony was in, on the ground that the plaintiff had failed to prove facts sufficient to constitute a cause of action and that plaintiff’s intestate was free from blame.

<p>1. Tax—Implied Repeal op Exemption Specially Accorded to Educational Corporation. An educational corporation is not exempt from local taxation upon its leased real estate, the rents of which are devoted exclusively to corporate purposes, although its charter, granted hy special act in 1887, expressly exempted such real estate from local taxation; since the General Tax Law (L. 1896, ch. 908, § 4, subd. 7, as amd.), exempting so much of the real estate of educational institutions as is used exclusively for carrying out thereupon one or more of the corporate purposes, impliedly repeals the provisions of the special act relating to such exemption.</p> <p>2. Repeal Not an Impairment op the Obligation of a Contract. The repeal of such exemption cannot he regarded as violating those provisions of the Federal Constitution prohibiting legislation impairing the obligation of contracts, since the Constitutions and Revised Statutes of the State of New York (Consts. 1846, 1895, art. 8, § 1; 1 R. S. 600, § 8) provide' for the alteration or repeal of any act, general or special, creating a corporation, and those provisions must be read into any subsequent charter, thus preventing it from becoming irrevocable.</p>

This action is brought to recover the sum of one thousand dollars alleged to have been wrongfully exacted from the plaintiff by the defendant as a bonus on the payment of a mortgage, this sum being in excess of the principal and interest called for by the plaintiff’s bond.

Action by the general members of a limited copartnership to recover an alleged balance of deposits.

arising upon an application for the sale of certain real property. The facts, so far as material, are stated in the opinion. The .referee had no power, without consent, to direct a sale of appellant’s parcels with respondents’ parcel en masse and a distribution of the avails per acreage. (Code Civ. Pro. § 1678; Doty v. Trustees of Berea College, 15 S. W. Rep. 1063 ; Skaggs v. Kincaid, 48 Ill.

The nature of the action and the - facts, so far as material, are stated in the opinion. The referee received, in evidence certain papers which were clearly inadmissible and incompetent, and the sole foundation of his conclusion of law that the plaintiff is entitled to recover from the defendants the amount paid by Taylor to defendants and of the judgment entered in accordance therewith.

¿ dm Bahrenbnrg, a resident of the city of Brooklyn, died on the 25th of February, 1889, leaving a last will and testament, dated May 17th, 1887, whereby he gave his residuary estate in trust for various purposes, and among them, “ 1. To pay to each of my children who shall háve arrived at the age of 21 years, the sum of (§500) Five hundred dollars as soon after my decease as my executors conveniently can. * * * “ 3.

The facts, so far as material, are stated in the opinion. The act in question relates to the police power of the state, and such power can only be exercised for the promotion of the health, comfort, safety and welfare of society.

■ On May 18th, 1895, the plaintiff entered into a contract with the defendant to regulate, set curbstones and pave with granite block the roadway of Transverse road No. 4, crossing Central Park at 97tli street from Fifth avenue to Central Park West (8th avenue), in the city of New York.

The facts, so far as material, are stated in the opinion. The corporation itself is not taxable upon the percentage of its capital invested without the state of New York. (People ex rel. N. Y. C. & H. R. R. R. Co. v. Knight, 173 N. Y. 255.) The nonresident shareholder should be taxed, if at all, only upon that proportion which represents the proportion of the capital of the corporation employed within this state. (People ex rel.

<p>Crime — When Conviction for Sale of Tobacco to a Child Not Warranted by Evidence. A conviction for a violation of subdivision 5 of section 290 of the Penal Code, making it a misdemeanor to sell, pay for or furnish cigars, cigarettes or tobacco to a child under the age of sixteen years, is not warranted where the evidence discloses that the boy to whom the defendant sold a package of cigars was sent to the store and furnished with money by his mother for the purpose of procuring the cigars for a person who boarded with her; that he told the defendant whom they were for, and that the defendant knew the fact, the boy having been sent on a similar errand many times before, since under such circumstances the cigars were sold, not to the boy, but to the person for whom he was directed to procure them, the boy acting merely as his agent.</p>

<p>Contract—Validity of Clause in Theatre Ticket Declaring it Void if Re-sold on Sidewalk. A theatre ticket is a license, issued by the proprietor pursuant to the contract as convenient evidence of the right of the holder to admission to the theatre at the date named, with the privilege specified, subject, however, to the observance of any reasonable condition appealing upon the face thereof and although granted for a consideration, is revocable for a violation of such condition by the holder of the ticket. A clause,' therefore, in such a ticket providing that if sold by the purchaser on the sidewalk it would be refused at the-door, is valid, the condition binds all subsequent purchasers and is enforceable in the manner provided thereby, where its purpose is to prevent the purchase by ticket speculators of theatre tickets and their re-sale at an advance over the price charged by the management, since a regulation of the proprietor, which tends to protect his patrons from extortionate prices, is reasonable and he has the right to make it a part of the contract and a condition of the sale. The liberty of the purchaser to sell his property is not involved, for he may sell it to any person and in any place except in the one prohibited by the contract; nor does the statute entitled “ An act to protect all citizens in their civil and legal rights ” (L. 1895, ch. 1043) have any application thereto, as the clause in-question does not discriminate against any person on account of any reason named in the statute, the same condition being imposed upon all and all being treated alike.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 11, 1905, which affirmed an order of Special Term granting an application for counsel fee and alimony in an action for the annulment of a marriage. •- The question certified is stated in the opinion.

<p>Cross-appeals from an order of the Appellate Division of the Supreme Court in the first judicial department, entered-May 11, 1905,'which affirmed an order of Special Term reducing an assessment for the purpose of taxation against the capital of the relator invested in business in this state.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>On the second Monday of January, 1902, the relator had established a permanent and continuous business in this state, had capital invested in that business, and its property, therefore, was properly assessable by the defendants. (L. 1896, ch. 908, § 7; People ex rel. Parker -Mills v. Comrs. of Taxes, 23 N. Y. 242; People ex rel. Sherwin- Williams Co. v. Barker, 5 App. Div. 246; 149 N. Y. 623; People ex rel. A. C. Co. v. Barker, 157 N. Y. 159 ; People ex rel. Crane Co. v. Feitner, 49 App. Div. 108 ; People ex rel. Sherwin - Williams Co. v. Feitner, 60 App. Div. 628; 127 N. Y. 622; People ex rel. Durand-Ruell v. Wells, 41 Misc. Rep. 144; 180 N. Y. 506.)</p> <p>The relator had not established a permanent or continuous business in this state on the second Monday of January, 1902, and had no capital invested in business within this state on that day. (L. 1896, ch. 908, § 7; People ex rel. Parker Mills v. Comrs. of Taxes, 23 N. Y. 242; People ex rel. Sherwin - Williams Co. v. Barker, 5 App. Div. 246; 149 N. Y. 623 ; People ex rel. A. C. Co. v. Barker, 157 N. Y. 159; People ex rel. Dives - Pelican Co. v. Feitner, 77 App. Div. 189; People ex rel. Durand - Ruel v. Wells, 41 Misc. Rep. 144; 92 App. Div. 622; People ex rel. G. S. Co. v. Wells, 42 Misc. Rep. 86; 93 App. Div. 613.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The claim in suit was provable in the bankruptcy proceedings of the defendant, and, not having been reduced to judgment, is barred by the defendant’s discharge. (Crawford v. Burke, 195 U. S. 176; Smith v. Lambert, 11 Am. Bank. Reg. 252; Morse v. Kaufman, 7 Am. Bank. Reg. 549 ; Matter of Bullis, 68 App.

Motion to set aside an order granted by a judge of the Court of Appeals allowing an appeal to this court from a judgment of the Appellate Division of the Supreme Court in the first judicial, department, entered April 7, 1905, unanimously affirming a judgment in favor of plaintiff entered1 upon a verdict and an order denying a motion for a new trial. The order granted allowing an appeal herein should be vacated under section 776 of the Code of Civil Procedure.

third judicial department, entered January 10, 1905, affirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a'jury.

<p>Trial — Findings — When Judgment Unsupported Thereby. Where the court, upon the trial of an action, instead of finding either way upon the crucial question of fact in the case, simply found the evidence as given by the witnesses upon that question and then drew a conclusion which, upon the record as it stands, is unsupported by any finding of fact, the judgment entered thereon must be reversed.</p>

The nature of' the action and the facts, so far as material, are stated in the opinion. The danger to which the plaintiff’s intestate was subjected by the direction of the foreman or the superintendent and foreman of the defendant was not an incident of his employment.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered September 20, 1905, which affirmed an interlocutory judgment of Special Term sustaining a demurrer to the affirmative defenses set up in the answer and holding that the complaint stated a cause of action, and from an interlocutory judgment entered thereon.

The nature of the action and the facts, so far as material, are stated in the opinion. In view of the circumstances and surroundings and the nature of the sidewalk, the notice indicated the location of the defects and want of repair in this sidewalk with sufficient particularity and accuracy to meet the requirements of the law and the provisions of the city charter.

The facts, so far as material, are stated in the opinion. The judgment cannot he sustained on the ground of fraud.

' Appeal from an order of the Appellate Dixdsion of the Supreme Court in the second judicial department, entered January 13,1905, which affirmed an order of the Kings County Surrogate’s Court denying a motion by the appellant herein for leave to intervene in a proceeding for a compulsory accounting or in the alternative for an order requiring the executrix herein to render and settle lror account. The facts, so far as material, are stated in the opinion.

Mount, deceased. The facts, so far as material, are stated in the opinion. The intended beneficiary was not the jurisdiction itself as an entity, but rather the congregation and rector of a church to be erected at a point in the territories of Utah and Idaho, or, in a broader sense, the inhabitants of such territories as a class. The beneficial class, as a class, has, therefore, not lost its identity.

The nature of the action and the facts, so far as material, are stated in the opinion. The sole question presented upon this appeal is whether upon the facts found by the trial court its conclusions of law are correct. (Code Civ.

<p>1. Practice — When Judgment Entered upon Decision Made at Close of Plaintiff’s Case Constitutes Judgment on the Merits. Where upon the trial of an action in equity to reform an assignment of certain policies of insurance, upon the ground of the “mutual mistake of the parties thereto,” and because of “ false and fraudulent statements” made by one of the defendants, the latter offered no evidence at the close of plaintiff’s case, but moved for a dismissal of the complaint upon the ground that there was no evidence of mutual mistake or fraud, on which motion no ruling was made, but subsequently a decision was rendered and expressed in findings in conformity with section 1032 of the Code of Civil Procedure, that there had been an absolute sale of the policies in question, that the assignment was not the result of any mutual mistake, or of fraud, and that, as a legal conclusion, a designated defendant was entitled to hold the moneys received upon the policies and to a dismissal of the complaint, and judgment was entered in accordance therewith, such judgment is not a nonsuit, but a judgment on the merits, although the judgment itself does not declare that the dismissal was upon the merits, where an inspection of the judgment roll of which the decision forms a part (Code Civ. Pro. § 1022) clearly discloses that such was the result of the trial and that settles the finality of the judgment. (Code Civ. Pro. § 1209.)</p> <p>2. Same — When Excepting to Findings and Conclusions Contained in Decision Directing Dismissal of Complaint Constitutes Waiver of Right to Insist That Judgment Is a Nonsuit. Where the plaintiff merely excepted to the unfavorable findings of fact and conclusions of law he thereby waived his right to insist that there had not been a trial and a determination of his whole issue with the defendant; he should have moved the court to correct the judgment roll in that respect, and the court, could have ordered, if holding that there had been an error, an amendment of the record; having failed to do this, he is debarred from raising the question upon appeal.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The amendments to the complaint spoke as of the date of the beginning of the action, and place the action in the same position as if the pleadings had originally been as they are now.

The nature of the action, and the facts, so far as material, are stated in the opinion. The defendant Hammond being in the lawful possession of this property, and the defendant Tompkins being lawfully in 1ns employ in preserving the property, owed no duty to the plaintiff except to abstain from doing him willful and unnecessary injury.

Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 20, 1905, affirming a judgment. in favor of plaintiff entered upon a decision of the court on trial at Special Term.

Appeal by plaintiff from that part of a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered June 15, 1904, tvliich affirms a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term.

The will reads as follows, viz.: “In the Name of God, Amen. “ I, Vincent C. King, of- the City and County of New York, in the State of New York, being of sound mind and memory, and considering the uncertainty of life, do make, publish and declare this to be my last will and testament. “First. I hereby direct all my just and lawful debts to be paid. “ Second.

Appeal, by permission, from, an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 3,1905, which affirmed an order of a Trial Term denying a motion for an order setting aside a verdict and discontinuing the action. The nature of the action, the facts, so far as material, and the questions certified are stated in the opinion.

The facts, so far as material, are stated in the opinion. The relator’s dismissal was void, as the deputy commissioner before whom he was tried had not been duly authorized to try him as is required by the charter. (People ex rel. McCollum v. Scannell, 56 App.

the third judicial department, entered June 3, 1904, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term. This action was brought to recover for the breach of a warranty, given upon the sale by the defendant of a machine, and the damages asked were for a personal injury, sustained by one of the purchasers as a result of its breaking down while'in operation.

The nature of the action and the facts, so far as material, are stated in the opinion. The complaint is ample and entitles plaintiff to show demise of the yacht to defendant and control and navigation by him. (Bregman v. Kress, 83 App. Div. 1; R. R. Co. v. Robinson, 133 N. Y. 242. A charter party like any other agreement stands upon its own peculiar provisions which cannot be overriden by provisions implied by law in cases where none are expressed by the parties.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 19, 1905, affirming a judgment in favor of defendant entered upon a verdict directed by the court.</p>

Appeal, by permission, from an order of the. Appellate Division of the.Supreme Court in the first judicial department, entered December 12, 1905, which reversed an order of Special Term continuing a preliminary injunction to restrain the election of directors of the defendant company.