Volume 211 — New York Reports

The nature of the action and the facts, so far as material, are stated in the opinion. Mrs. Heise attempted to give a sum of money, the proceeds of her undivided interest in her father’s estate, hut she did not give her legal estate in remainder, which was all -she had to give at the time of the alleged gift. The gift was, therefore, executory and invalid.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 22, 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 defendant was not justified in canceling the policy by reason of any provision in the policy loan agreement. (2 May on Ins. [3d ed.] § 345e; Richards on Ins. Law [3d ed.], 497; Shaw v. R. Life Ins. Co., 67 Barb. 586; 69 N. Y. 286; Stewart v. U. M. Life Ins. Co., 155 N. Y. 257; M. M. L. Ins. Co. v. Boves, 51 N. W. Rep. 962Thum v. Wolstenholme, 21 Utah, 446; Arnold v. E. M. A. L. Ins. Co., 3 Ga. App. 685; Stepp v. Nat. Life & M. Assn., 37 S. C. 417; Taylor v. N. Y. L. Ins. Co., 197 N. Y. 324; Cohn v. Husson, 113 N. Y. 662; Sherman v. Parish, 53 N. Y. 483.) The defendant occupied toward the insured a fiduciary relation of such a character as to preclude it from canceling the policy and forfeiting the plaintiff’s right to extended insurance thereunder. (Toplitz v. Bauer, 161 N. Y. 325; Bailey v. Am. Deposit Co., 52 App. Div. 402; 165 N. Y. 672; Field v. Sibley, 74 App. Div. 81; 174 N. Y. 514; Wheeler v. Newbould, 16 N. Y. 392; Munson v. S., G. & C. R. R. Co., 103 N. Y. 58; Thomas v. B. R. R. Co., 109 U. S. 522; Risley v. I., B. & W. R. R. Co., 62 N. Y. 240; Barry. N. Y., L. E. & W. R. R. Co., 125 N. Y. 263; Hecksher v. Edenborn, 203 N. Y. 210; Bain v. Sadler, L. R. [12 Eq.] 570; Poe v. Snowden, 70 Md. 383.) The defendant was not entitled to cancel the policy for non-payment of the note of April 16, 1903, because, by the payment of five annual premiums, Hayes and the plaintiff had become entitled by the terms of the policy to extended insurance for a period which had not expired at the time of the life insured’s death. (Perry v. B. L. Ins. Co., 47 App. Div. 567; 167 N. Y. 607; Hoffman v. Æ. F. Ins. Co., 32 N. Y. 404; Reynolds v. C. F. Ins. Co., 47 N. Y. 597; Allen v. St. Louis F. Ins. Co., 85 N. Y. 473; Strauss v. U. C. L. Ins. Co., 170 N. Y. 349; Kelsey v. U. C. L. Ins. Co., 196 Fed. Rep. 195; Russell v. Allerton, 108 N. Y., 288; Smith v. Robson, 148 N. Y. 252; Gillet v. Bank of America, 160 N. Y. 549; Industrial & General Trust v. Tod, 180 N. Y. 215; Schweinburg v. Altman, 145 App. Div. 377.) At the date of the forfeiture claimed by the defendant there was a reserve, which, after the deduction of the loan, was sufficient, taken as a single premium, to carry the policy beyond the date of the death of the insured. (Taylor v. N. Y. L. Ins. Co., 209 N. Y. 29.)</p> <p>The meaning of this note agreement is not doubtful; its terms are reasonable; there is nothing in it the parties were not competent to agree to, and it is a fair agreement that the parties themselves duly made for the purpose of helping the insured by extending his time for paying the April sixteenth premium. (Holly v. Met. L. Ins. Co., 105 N. Y. 437; Nat. L. Assn. v. Brown, 103 Ga. 382; Sharpe v. N. Y. Life Ins. Co., 98 N. W. Rep. 66; N. Y. L. Ins. Co. v. Meinkin, 80 S. W. Rep. 174; N. Y. Life Ins. Co. v. Banks, 75 S. W. Rep. 234; M. L. Ins. Co. v. Pentecost, 49 S. W. Rep. 245; Behling v. Ins. Co., 78 S. W. Rep. 800; Ressler v. Ins. Co., 78 S. W. Rep. 735; Rife v. Union Central Ins. Co., 62 Pac. Rep. 48; Forbes v. Union Central Ins. Co., 51 S. E. Rep. 84; Moreland v. Union Central Ins. Co., 46 S. W. Rep. 516; Continental Co. v. Dorman, 125 Ind. 89; Fowler v. Met. Life Ins. Co., 116 N. Y. 389; Sun Mutual Ins. Co. v. Dudley, 45 S. W. Rep. 539.) As insurer and insured the relations between the parties was purely contractual, and not fiduciary. (Uhlman v. N. Y. L. Ins. Co., 109 N. Y. 421; Eq. L. Ins. Co. v. Brown, 213 U. S. 25; Wingo v. First Nat. Bank, 60 South. Rep. 133.)</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in' the first judicial department, entered May 16, 1913, which affirmed an order of Special Term denying a motion by defendant for judgment in her favor upon the pleading. The following question was certified: “ Does the complaint state facts sufficient to constitute a cause of action ? ” The action was commenced within one year from the grant of letters testamentary to defendant as executrix.

The nature of the action and the facts, so far as material, are stated in the opinion. It was error to exclude evidence of defendant’s telephone conversation with McTighe on the evening of March eighteenth. (Dickinson v. Tysen, 209 N. Y. 395.) The hearsay evidence offered by defendant as to statements of McTighe, the prospective purchaser, over the telephone, March eighteenth, was not admissible as independent evidence of McTighe’s intention.

The nature of the action and the' facts, so far as material, are stated in the opinion. Under section 3 of the Labor Law, as such provisions are construed by the courts, a contract between a municipality and a contractor for the construction of public works is voidable, at the option of the municipality, for violations of the law by the contractor, and is not upon such violation ipso facto absolutely void. (Sutherland on Stat.

The nature of the action and the facts, so far as material, are stated in the opinion. It was reversible error to permit the plaintiff to show that one of the defendants had agreed to reimburse the plaintiff for his wages and doctor’s bills. (Tennant v. Dudley, 144 N. Y. 504; Smith v. Bailey, 14 App. Div. 283; Slingerland v. Norton, 58 Hun, 578; O'Brien v. N. Y City R. Co., 55 Misc. Rep. 228; Schiavone v. Callahan, 52 Misc. Rep. 654; Roome v. Robinson, 99 App.

<p>Appeal from a judgment, of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 15, 1912, affirming a judgment in favor of plaintiff entered upon a verdict.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>There was no evidence of negligence on the part of defendant. (McRorie v. Monroe, 203 N. Y. 426; Hubbell v. City of Yonkers, 104 N. Y. 439; Cleveland v. N. J. S. Co., 125 N. Y. 299; Faveo v. T. & W. T. B. Co., 4 App. Div. 241; Flynn v. W. D. M. Assn., 64 App. Div. 490; Beltz v. City of Yonkers, 148 N. Y. 67.) A new trial should be granted because of erroneousa’ulings on questions of evidence at the trial. (Turner v. City of Newburg, 109 N. Y. 301; Graham v. Bauland Co., 97 App. Div. 141; Kehoe v. International R. Co., 56 Misc. Rep. 138; Lazarus v. N. Y. C. R. R. Co., 46 Misc. Rep. 473; Maimone v. D. D., etc., R. R. Co., 58 App. Div. 383; Link v. Sheldon, 136 N. Y. 1; McGuire v. Brooklyn H. R. R. Co., 30 App. Div. 227.)</p> <p>There was ample evidence of negligence on the part of the defendant in the manner in which the turnstile was operated at the time of the accident, and the court justly and properly submitted the case to the jury. (Edwards v. N. Y. & H. R. R. Co., 98 N. Y. 245; Camp v. Wood, 76 N. Y. 92; Barrett v. L. O. B. Improvement Co., 174 N. Y. 310; Deyo v. K. C. R. R. Co., 94 App. Div. 580; Thurber v. H. B., M. & F. R. R. Co., 60 N. Y. 326; Massoth v. D. &. H. C. Co., 64 N. Y. 529; Keane v. Vil. of Waterford, 130 N. Y. 188; Feeney v. L. I. R. R. Co., 116 N. Y. 375; Edgerly v. L. I. R. R. Co., 44 App. Div. 476; Butler v. M. Ry. Co., 3 Misc. Rep. 453; 143 N. Y. 630.) The defendant’s exceptions to the admission of expert testimony were not well taken and the evidence was properly admitted. The rulings on questions of evidence at the trial were correct. (Stouter v. Mahattan R. R. Co., 127 N. Y. 666; Cole v. F. B. Coal Co., 159 N. Y. 67; Filer v. N. Y. C. R. R. Co., 49 N. Y. 42; Turner v. City of Newburg, 109 N. Y. 308; Dougherty v. Milliken, 163 N. Y. 533; Ehrgott v. Mayor, etc., 96 N. Y. 264; Cross v. City of Syracuse, 200 N. Y. 393; Tracy v. M. S. R. R. Co., 49 App. Div. 197; 168 N. Y. 653; Wallace v. Vacuum Oil Co., 128 N. Y. 579.)</p>

. Appeal from, a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 8, 1912, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court. June 11th, 1909, the Gore-Meenan Company, of which Frank E. Gore was president, .and the defendant Daniel Meenan was secretary, together with the respondent, executed a bond to Benjamin B. Odell, Jr., and William E..

The nature of the action and the facts, so far as material, are stated in the opinion. The placing of two or three stones in a public highway in the country for the purpose of blocking a wagon so that it will not run down hill is a lawful act and is not a nuisance. (Hayes v. Brooklyn Heights R. R. Co., 200 N. Y. 183; Dickinson v. Mayor, etc., 92 N. Y. 584; Melker v. City of New York, 190 N. Y. 488; Hoagle v. Franklin Mfg.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff failed to prove the defendant guilty of any negligence. (Perry v. Rogers, 157 N. Y. 251; Capasso v. Woolfolk, 163 N. Y. 472; Citrone v. O'Rourke Engineering Const. Co., 188 N. Y. 339; Mullin v. Genesee Co. El. L. P. & G. Co., 202 N. Y. 275; Kwiatkowski v. Nichols Copper Co., 152 App. Div. 663; Nowak v. Delaney F. & I. Co., 159 App.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered November 6, 1912, affirming a judgment in favor of plaintiff entered upon a verdict.</p> <p>The nature of the action and the facts, so far as material, áre stated in the opinion.</p> <p>The trial justice erred in refusing to charge the jury that if for any reason the defendant would not have sold its blocks to the plaintiff, there could be no contractual relationship between the plaintiff and the defendant, and the plaintiff could not recover on the theory that Booth was agent for it as an undisclosed principal. The trial justice also erred in charging that the question as to whether the defendant for any reason would not have sold to plaintiff was not for the jury’s consideration. (Wald’s Pollock on Cont. [3d ed.] 590, 591; Winchester v. Howard, 97 Mass. 303; Boston Ice Co. v. Potter, 123 Mass. 28; Kelly A. B. Co. v. Barber A. P. Co., 136 App. Div. 21; Kling v. I. Nat. Bank, 160 N. Y. 698; A. S. Co. v. Belden Co., 127 IT. S. 387; Consumers Ice Co. v. Webster, 32 App. Div. 592; H. R. Co. v. U. R. Co., 33 App. Div. 62; Moore v. Vulcanite Cement Co., 121 App. Div. 667; Cowan v. Curran, 216 Ill. 598.) The learned trial justice erred in charging the jury that the fact that Booth represented to the Barber Asphalt Paving Company that he was getting the blocks for himself, or did not disclose to them at the time that he was getting them for the plaintiff, was not conclusive. (Raabe v. Squire, 148 N. Y. 81.)</p> <p>Booth throughout the. transaction was plaintiff’s agent. The court properly left the question of agency to the jury, charging it that if Booth was not the agent of plaintiff it could not recover. (Greenwood v. Schumacker, 82 N. Y. 615; F. B. N. Co. v. Mackey, 83 Hun, 51; 155 N. Y. 685.) An undisclosed principal of an oral or written agreement, not under seal, may enforce the contract in his own name. (Nicoll v. Burke, 78 N. Y. 580; .Briggs v. Partridge, 64 N. Y. 357; Brady v. Nally, 151 N. Y. 258; Ludwig v. Gillespie, 105 N. Y. 653; Henderson, Hull & Co. v. McNally, 48 App. Div. 137; 168 N. Y. 646; Sears v. Conover, 33 How. Pr. 324; Tyler v. Barrows, 29 N. Y. Super. Ct. 104; Devlin v. Mayor, 63 N. Y. 8; Hunter v. Giddings, 97 Mass. 41; Huntington v. Knox, 61 Mass. 371.)</p>

The nature of the action and the facts, as far as material, are stated in the opinion. The action was improperly tried as one within the provisions of the Employers’ Liability Act for the reason that notice was not served as required by said act.

Appeal, by permission, from a judgment of the Appelte Division of the Supreme Court in the third judicial ipartment, entered July 22, 1910, affirming a judgment . favor of defendant entered upon á dismissal of the implaint by the court at a Trial Term. The nature of the action and the facts, so far as aterial, are stated in the opinion.

The facts, so far as material, are stated in the opinion. The fact that Henry Marsh acted as agent for the widow and children of Eli Bennett, the deceased mortgagee, when he purchased the premises on the foreclosure sale of 1894, and not as agent for Eli Bennett’s administratrix, has been settled beyond dispute by the unanimous affirmance below; and consequently the respondent takes nothing under his assignment from the administratrix.

Peck, superintendent of public works of the state, and William B. Milliman, special examiner and appraiser of canal lands, to execute and deliver to the relator quitclaim deeds on behalf of the People of the state granting to the z’elator an easement to use and occupy for z'ailroad purposes certain lands.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 25, 1913, which reversed an order of Special Term confirming the report of a referee and allowing’ against the receiver of the Metropolitan Surety Company the claim of the appellant for the sum of $1,631.40. The Appellate Division certified the two questions: 1.

The nature of the action and the facts, so far as material, are stated in the opinion. The evidence in this case clearly showed that the defendant violated its contract by operating upon the plaintiff without her consent, and this question of fact should have been submitted to the jury for its decision. (Clemence v. City of Auburn, 66 N. Y. 334; Sheridan v. B. C. R. R. Co., 36 N. Y. 39; Colt v. S. A. R. R. Co., 49 N. Y. 671; Train v. H. P. Ins.

The facts, so far as material, are stated in the opinion. The committee is liable to the incompetent for not collecting the money due him from the trustee. (Blood v. Kane, 130 N. Y. 514.) The proceeding was one relating solely to the judicial settlement of the account of James M. Anderson as committee of the person and estate of his brother Eugene. The evidence did not justify a finding that he as committee had received any part of the money he was required to pay.

The nature of the action and the facts, so far as material, as stated in the opinion. There was no evidence whatever to support a finding that when Searing, the Newton Trust Company’s vice-president, approved the purchase by it of the note, he was acting for that company.

The nature of the action and the facts, so far as material, are stated in the opinion. It was error for the. court to have directed the jury to answer the eighth and ninth questions in the negative. The effect of this was to withdraw from the consideration of the jury all of defendant’s proof of the misconduct of the plaintiff.

<p>Condemnation proceedings — New York (city of) — construction and application of the statute (L. 1905, ch. 7S4, §42; amd. L. 1906, ch. 314, § 9), which provides that, if the value of any business is decreased by the taking of land for the New York water supply, damages shall be awarded to the owner of such business — rules for and method of ascertaining the value of such business and the decrease therein.</p> <p>1. In determining the value of an established business under section 42 of chapter 724 of the Laws of 1905, as amended by section 9 of chapter 314 of the Laws of 1906, which provides that the owner of any real estate taken for the New York water supply, which is directly or indirectly decreased in value by reason of the acquiring of land therefor, shall have a right to damages for such decrease in value, the statute contemplates that the city should pay a fan and equitable amount for any and all damages to persons and property, which result from the execution of the plans for a water supply, and it expressly provides that the commission shall not be limited in the reception of evidence to the rules regulating the proof of direct damages.</p> <p>2. Where the claimants conducted a summer boarding house and livery business upon a farm not owned by them, the boarding house and livery business conducted by claimants on the property was an established business within the meaning of the said acts, and the claimants can prosecute a claim for its decrease in value, if any such decrease there be, although the owner had been awarded the value of the farm and buildings and received the award.</p> <p>3. For the purpose of ascertaining such value, the capital invested in a business represents an expense equal to the market rate of interest thereon. There should be charged against the business the rental paid therefor when the person making the claim is not the owner of the premises on which the business is carried on, also against the capital invested in the personal property used therewith, the market rate of interest thereon and a reasonable amount for the depreciation of such personal property.</p> <p>4. There should be charged against the business the reasonable cost or value of all labor necessary to maintain it. The fact that such labor is performed in part by the owner and by members of his household does not exempt such labor from consideration in determining the value of an established business.</p> <p>5. The market value of produce raised on the farm occupied by the claimant used at a boarding house and fed to the horses used in a livery business constitutes an expense to the established business the same as if such produce had been purchased from other sources.</p> <p>6» The fact that a person making a claim for decrease in the value of an established business is fortunate in developing a business at another place or obtaining favorable employment cannot be used to mitigate or lessen the damages for which the city is hable. A claim for such damages should be ascertained as of the date when the established business is taken or decreased.</p> <p>7. An established business may exist upon land condemned wholly independent of the land so condemned. The value of such business and its permanency are questions of fact to be determined by the commission.</p>

Cross-appeals from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 20, 1912, affirming a judgment in favor of plaintiff as to his first cause of action, entered upon a verdict, and in favor of defendant as to the second cause of action, entered upon a dismissal of the complaint as to it by the court at a Trial Term. The nature of the action and the facts, so far as material, are stated in the opinion.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered December 10, 1912, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The presumption of payment was established by the circumstances attending the payment to the bank and the conduct of the plaintiff subsequent thereto. Such presumption of payment may be established by the circumstances although the full period of the Statute of Limitation has not run. (Macaulay v. Palmer, 125 N. Y. 744; Matter of Neilley, 95 N. Y. 382; Matter of Looram, 73 Hun, 177.) After the lapse of five years, in the case of a judgment, there is a positive presumption in favor of payment, requiring evidence to rebut. (Rosenstock v. Dessar, 85 App. Div. 506; Catskill Bank v. Sanford, 4 How. Pr. 101; Lee v. Watkins, 3 How. Pr. 243; Macaulay v. Palmer, 125 N. Y. 744; Matter of Neilley, 95 N. Y. 382; Krower v. Reynolds, 99 N. Y. 246; Montrait v. Hutchins, 49 How. Pr. 105.) The defense of payment was established by uncontradicted evidence. (Harbeck v. Vanderbilt, 20 N. Y. 395; Champney v. Coope, 32 N. Y. 543; Kellogg v. Ames, 41 N. Y. 263.) Failing to testify or explain warrants every inference against him. (Jenner v. Shope, 205 N. Y. 66; Wylde v. Northern R. R. Co. of N. J., 53 N. Y. 156; Flynn v. Equitable Life Ins. Co., 78 N. Y. 568; Nutting v. K. Co. E. R. Co., 21 App. Div. 72; Matter of Randell, 158 N. Y. 219; Brown v. Barse, 10 App. Div. 445.)</p> <p>There is no presumption of payment of a judgment until after the expiration of twenty years. (Code Civ. Pro. § 376.) The defense •of payment was not established as a matter of law. (Kolb v. National Surety Co., 176 N. Y. 233.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The rule of res ipsa loquitur was not applicable to the case at bar, and the motion for nonsuit should have been granted. (Welch v. Cornell, 168 N. Y. 508; Henson v. Lehigh Valley R. R. Co., 194 N. Y. 205; Ferrick v. Eidlitz, 195 N. Y. 248; Lucid v. Dupont P. Co., 199 Fed. Rep. 311; Shandrew v. C., St. P., M. & O. Ry. Co., 142 Fed. Rep. 320; Omaha Packing Co. v. Sanduski, 155 Fed.

The nature of the action and the facts, so far as material, are stated in the opinion. Prior to the consolidation the legal title to the property in controversy was in plaintiff. There was no denominational trust or denominational control. It could lawfully change the creed and religious doctrine to be expounded from its pulpit. The legal title was in the plaintiff corporation under the control of its trustees.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial, department, entered July 5, 1912, affirming a judgment in favor of plaintiff entered upon a verdict. Also appeal from an order of said Appellate Division, entered November 22, 1912, which affirmed an order of Special Term denying a motion to correct the judgment.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The verdict of no cause of action against defendant Grounsell determined the entire issue in favor of appellant. (Lykins v. Himrick, 144 Ky. 80; Patterson v. United States, 2 Wheat. 225; Castle v. Noyes, 14 N. Y. 333.) Under the instructions to the jury, acquiesced in by both parties, this court must assume upon this appeal that the jury found Grounsell, the servant, not .negligent, and that plaintiff by negligence contributed to his injury, and so found before they considered damages. (Card v. Duryee, 66 N. Y. 651.) The verdict of no cause of action and the judgment entered thereupon by respondent operates completely in estoppel for appellant, and respondent is estopped from asserting to the contrary or that the mere adjudication in damages for the plaintiff is anything other than an irregularity, a surplusage which should be disregarded. (Castle v. Noyes, 14 N. Y. 329; C., etc., R. Co. v. McManigal, 73 Neb. 580; Patterson v. United States, 2 Wheat. 225; Brigg v. Hilton, 99 N. Y. 517; 2 Freeman on Judgments, § 481; Newburgh Sav. Bank v. Woodbury, 64 App. Div. 311; 173 N. Y. 55; Draper v. R. T. Co., 124 App. Div. 359.) The judgment upon the verdict of no cause of action stands unappealed and unreversed as between the parties to this appeal. Therefore appellant is entitled to the order and direction of this court correcting the judgment in the manner stated in his notice of motion therefor. (N. O., etc., Co. v. Jopes, 142 U. S. 18; Featherstone v. N. & C. Turnpike, 71 Hun, 109; Heffern v. Haverstraw, 143 App. Div. 527; Littleton v. Richardson, 34 N. H. 179; Hill v. Bain, 15 R. I. 75; Montfort v. Hughes, 3 E. D. Smith, 591; Hayes v. Chicago Tel. Co., 218 Ill. 414; Emma, etc., Co. v. Emma, etc., Co., 7 Fed. Rep. 401; Morris v. N. W. Imp. Co., 53 Wash. 451; Chicago, etc., Ry. Co. v. McManigal, 73 Neb. 580; Stevick v. N. P. R. Co., 39 Wash. 501; Sipes v. Puget Sound Elec. R. Co., 54 Wash. 47; Frascone v. Louderback, 153 App. Div. 203.) If appellant is not entitled to judgment dismissing the complaint, it certainly is entitled to a new trial. (Eleischman v. Samuel, 18 App. Div. 89; Brown v. Grossman, 59 Misc. Rep. 153; Paulitsch v. N. Y. C. & H. R. R. R. Co., 18 J. & S. 241; C. E. Bank v. Blye, 119 N. Y. 414; Greer v. Mayor, 1 Abb. [N. S.] 206; Moses v. E. & P. Mfg. Co., 68 Ga. 241.)</p> <p>The judgment entered upon the verdict of the jury in favor of the .plaintiff-and against the defendant Buick Motor Company is valid. (Erascone v. Louderback, 153 App. Div. 199; 208 N. Y. 631; I. C. R. R. Co. v. Murphy, 11 L. R. A. [N. S.] 352; Kenyon v. Sherman, 8 J. & S. 363; Gray v. Brooklyn Heights R. R. Co., 175 N. Y. 448; Hecla Powder Co. v. Sigua Iron Co., 157 N. Y. 437.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in charging the jury that there is no testimony in this case which shows the plaintiff was injured on what could be called a common passageway. (Looney v. McLean, 129 Mass. 33; Watkins v. Goodhall, 138 Mass. 533; Leydecker v. Brintall, 158 Mass. 292; Andrews v. Williamson, 193 Mass. 92; Ward v. Blouin, 210 Mass. 140; O'Dwyer v. O'Brien, 13 App.

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

a motion for a peremptory writ of mandamus to compel defendants to approve the petitioner’s application for a garage permit. The facts, so far as material, are stated in the opinion. The ordinance refusing a permit for a garage when situated within fifty feet of a school, theatre or other place of public amusement or assembly is unreasonable and arbitrary and, therefore, unconstitutional and void. (Fisher v. Woods, 187 N. Y. 90; Lochner v. People, 198 U. S. 45; People ex rel.

<p>Executors and administrators — Surrogates’ Courts—revocation of letters of administration of one of two administrators does not render appointment of the other voidable or empower surrogate to remove the latter on the ground that the letters of the co-administrator have been revoked.</p> <p>1. The right of an administrator to act as such does not terminate ipso faeto, or become voidable at the election of the next of kin of the intestate, upon the revocation of the letters of a co-administrator; neither has a surrogate power to remove an administrator on the sole ground that the letters of a co-administrator have been revoked. These rules are applicable where a person entitled to administration has associated with him another administrator and the letters of the person entitled have been revoked. (Code Civ. Pro. §§ 2685, 2692.)</p> <p>2. Where the letters of one of two or more executors or administrators are revoked, there can be no appointment of a successor to the person whose letters are thus revoked, except where such an appointment is necessary in order to comply with the express terms of a will. (Code Civ. Pro. § 2692.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The property owners have signed a conditional application and have accepted a conditional permit and by claiming benefits thereunder are estopped from denying the authority of the commissioner of public works to issue such permit. (Dillon on Mun.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered March 6, 1914, which affirmed a judgment of the Kings County Court rendered upon a verdict convicting the defendant of the crime of assault in the second degree.</p> <p>The facts, so far as material, are stated in the opinion.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Oourt in the first judicial department, entered November 11, 1913, which reversed an interlocutory judgment of Special. Term sustaining a demurrer to the complaint and overruled said demurrer.

The judgment rendered at Special Term permanently enjoined the defendant from flooding the lands of plaintiffs by its dam in the Chateaugay river after ten months from the rendition of the judgment and awarded the plaintiffs six cents damages.

The nature of the action and the facts, as far as material, are stated in the opinion. The ordinance, if held to apply to the acts of the defendant, would be unreasonable and void as to such acts even though it might be good as to other situations. (Ford v. Standard Oil Co., 32 App. Div. 596; Matter of Jacobs, 98 N. Y. 98; Underwood v. Green, 42 N. Y. 140; N. Y. S. U. Co. v. Dept. of Health, 61 App.

Appeal, in the first above-entitled action, from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered June 20, 1912, modifying and affirming as modified a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term after the rendition of a verdict upon certain questions of fact and also affirming certain orders made in the action. .

Y6in full for all claims which they might have against the estate of Polly L. Martin, deceased, and the further sum of $250 for costs and allowances in the proceeding. The facts, so far as material, are stated in the opinion. No consent having been filed with the surrogate within six months after rejection of the claim, the bar of section 1822 of the Code of Civil Procedure applies and the surrogate had no jurisdiction to determine its validity.

Cochrane, as comptroller of the city of Buffalo, forthwith to reinstate the applicant, Arthur B. Christey, in the position of auditor of the city of Buffalo and requiring and commanding the defendant Joseph M. Gleason forthwith to vacate the position of auditor of said city. One Anselm J. Smith was appointed auditor of the city of Buffalo January 4th, 1886, and served continuously in said office to the time of his death, December 27th, 1913.

This action Was brought by the plaintiff to recover of defendant the sum of $30,079.29, claimed to be due plaintiff as assignee for certain work performed, and materials furnished, by the Thomas McNally Company, a corporation organized under and by virtue of the laws of the state of Pennsylvania.

The facts, so far as material, are stated in the opinion. The judgment of registration as made and entered at Special Term was correct and the Appellate Division erred in reversing the same. (L. 1909, oh. 52, §§ 385, 389; L. 1910, ch. 627.) The Supreme Court never acquired jurisdiction of this action. Plaintiff’s application shows that he is not in possession of a portion of the premises.

<p>Landlord and tenant — removal of part of demised premises by order of municipal authorities — when such eviction of tenant does not constitute defense in action for rent.</p> <p>1. When a landlord wrongfully enters upon a part of the demised premises the whole rent is suspended until possession is restored, but where a part is recovered by title paramount to the lessor’s, it is an exception to the rule. In that case he is not so far considered in fault as that it should deprive him of a return for the part remaining</p> <p>2. Where a landlord under compulsion from the municipal authorities removed part of the demised premises which encroached on the sidewalk, and the change is shown to have been beneficial to the tenant, such partial eviction is not a defense in an action to recover the rent, although an apportionment or abatement of the rent might be allowed if loss resulted to a tenant, and that fact is pleaded. (Christopher v. Austin, 11 N. Y. 216, distinguished; Gallup v. Albany Ry. Co., 65 N. Y. 1, followed.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. There is no evidence of negligence in plaintiff’s case. The facts to which plaintiff testifies do not give rise to any presumption of fault on defendant’s part. There is proof that the train came to a sudden stop with a violent jolt, but there is no proof of any accident and, therefore, no basis for the application of the rule of res ipsa loquitur.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered September 11, 1913, which affirmed an interlocutory judgment of Special Term overruling a demurrer to separate defenses set up in the answer. The plaintiff brought this action to recover for injuries received by him in a collision on defendant’s railroad at Elmira, in this state.

<p>Appeal—judgment of New York City Magistrate’s Court affirmed by Court of General Sessions and Appellate Division — Appellate Division may allow appeal to Court of Appeals — public schools—vaccination — parent’s refusal to have child vaccinated — action for penalty against such parent for failure to send child to school.</p> <p>1. An appeal from the decision of a City Magistrate’s Court to the Court oí General Sessions, and thence from a judgment of affirmance to the Appellate Division, is a matter of right. (L. 1910, eh. 659, §§ 72, 94) In the absence of permission to appeal the judgment of the Appellate Division is final, but under the Constitution (Art. 6, § 9) the Appellate Division has power to allow a further appeal from its judgment to this court.</p> <p>2. The law requiring vaccination of children in the public schools is a proper one. When a father sends his child to school unvaccinated, and the school authorities refuse to allow said unvaccinated child to attend school (Public Health Law, § 310; Cons. Laws, ch. 45), and the father refuses to permit vaccination and thereafter does not cause said child to attend on instruction as provided in section 624 of the Education Law (Cons. Laws, ch. 16; L. 1910, ch. 140), he is subject to the penalty provided in section 625 of that act. (Matter of Viemeister, 179 N. Y. 235, followed.)</p>

Butterfield, deceased, and denied said application. The facts, so far as material, are stated in the opinion. The case falls directly within subdivisions 5 and 10 of section 98 of the Decedent Estate Law which provide that in such a case as to personal property, “The whole surplus shall be distributed to the next of kin in equal degree to the deceased and their legal representatives;” and “their shares shall be equal.” (Matter of Nichols, 60 Misc.

<p>Appeal from, an order of the Appellate Division of the Supreme Court in the first judicial department, entered October 3, 1913, which reversed an order of Special Term directing the state treasurer to pay to the petitioner, as sole heir and next of kin of William A. Kenneally, deceased, certain moneys and personal property theretofore turned into the treasury of the state of New York pursuant to an order of the Supreme Court and dismissed the proceeding.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>It was error for the Appellate Division to dismiss the appellant’s petition on the theory that, even if the declarations on which the appellant relies were admissible, the finding that he is the son of Sergeant John Kenneally and the half-brother -of the decedent was not supported by evidence sufficient to uphold the determination of the Special Term.' (Merges v. Ringler, 158 N. Y. 701; Matter of Regan, 167 N. Y. 338; Matter of King, 168 N. Y. 53; Matter of Board of Education, 169 N. Y. 456; Matter of Earnshaw, 196 N. Y. 330; Velleman v. Rohrig, 193 N. Y. 439; Conlon v. Kelly, 199 N. Y. 43; Matter of Carnegie Trust Co., 206 N. Y. 394; Hirshfield v. Fitzgerald, 157 N. Y. 66; O'Brien v. East River Bridge Co., 161 N. Y. 539.) The testimony of the appellant and of his Cleveland relatives as to his pedigree derived as it was from the declarations of his mother and half-sister • made ante litem motam, was competent within the well-recognized exception to the rule relating to hearsay evidence. (Whitelock v. Baker, 13 Ves. 511; People v. Fulton Fire Ins. Co., 25 Wend. 205; Fulkerson v. Holmes, 117 U. S. 389; Eisenlord v. Clum, 126 N. Y. 552; Matter of Estate of Hurlburt, 68 Vt. 366; Rollins v. Atlantic City Ry. Co., 73 N. J. L. 64; Layton v. Kraft, 111 App. Div. 842; Young v. Shulenberg, 165 N. Y. 385; Monkton v. Atty.-Gen., 2 Russ. & Myl. 147; Robson v. Atty.-Gen., 10 Cl. & Fin. 171; Matter of Hartman, 157 Cal. 206; Sitler v. Gehr, 105 Penn. St. 592; Mann v. Kavanagh, 110 Ky. 776; Robb's Estate, 37 S. C. 19; Scheidegger v. Terrell, 149 Ala. 338.)</p> <p>Before the declarations of Mary Hardiman Moan and Margaret Kearns Hardiman were received it should have appeared that they were related by blood or marriage to William A. Kemieally, the decedent. (Fulkerson v. Holmes, 117 U. S. 397; Blackburn v. Crawford, 3 Wall. 175; Young v. Shulenberg, 165 N. Y. 385; Layton v. Kraft, 111 App. Div. 842; Jewell v. Jewell, 1 How. 219; Green v. Almand, 111 Ga. 735; Atty.-Gen. v. Kohler, 9 H. L. Cas. 685; Jackson v. Jackson, 80 Md. 194; Washington v. B. S. Co., 171 N. Y. 166.)</p>

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 3, 1912, affirming a determination of the Appellate Term which reversed a judgment of the Municipal Court of the city of Hew York in favor of defendant entered upon a dismissal of the complaint and granted a new trial. The nature of the action and the facte, so far as material, are stated in the opinion.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered September 7, 1912, affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court after a trial at Special Term.</p> <p>The action is brought to enforce a liability of stockholders in a state bank for an alleged indebtedness of the bank.</p> <p>On and prior to August 10, 1901, the Metropolitan Bank was a state bank having its place of business in the city of Buffalo, New York. It had been subjected to a run by its depositors and a representative of the banking department for some time had been overlooking its operations and finally had reached the conclusion to close its doors.</p> <p>In the light of subsequent events it has been found that the bank then was and for some time had been insolvent, but it was not found or indicated by the evidence that this was appreciated or believed by the people carrying on the subsequent transactions herein referred to. At this time there was also another state bank, the German Bank, doing business in Buffalo, and on the date above mentioned after negotiations between directors and counsel representing respectively the two institutions, an agreement was made providing for a transfer by the Metropolitan Bank of all of its assets to the German Bank, and for the payment by the latter of all of the depositors of the former, and which agreement provided and read as follows:</p> <p>“ This Agreement, made this 10th day of August, A. D., 1901, between The Metropolitan Bank, of the First Part, and the German Bank, of the Second Part, both being Banking Corporations organized under the laws of the State of New York, and both located and doing business in Buffalo, Erie County, New York, Witnesseth:</p> <p>“Whereas, the party of the first part has been engaged in the banking business for several years last past in Buffalo, and in the course of such business has acquired divers assets of various nature,</p> <p>“ And Whereas, it has been thought desirable by its officers and the board of its directors, that it should go into voluntary liquidation, and thereby avoid, so far as may be, the expenses incident to a receivership.</p> <p>“ Whereas, the party of the second part is willing to undertake such liquidation upon the terms hereinafter stated:</p> <p>“ Now, Therefore, in consideration of the premises and One Dollar to each of the parties in hand paid by the other, the receipt whereof is hereby acknowledged, it is agreed between the parties hereto as follows:</p> <p>“ First: The party of the first part hereby pledges to the party of the second part all and singular its assets, property and effects of every name, nature and kind as security for the advance hereinafter specified, and it agrees that it will when and as requested, by proper assignment and special instrument in each case, make valid transfers of any particular portion of such assets necessary to comply with the statute regarding the recording of instruments and so as to enable the second party to make proper, adequate and easy proof of its rights in the premises.</p> <p>“ Secpnd: The party of the second part agrees that it will, advance to the party of the first part when and as the same shall he needed, sufficient moneys to pay all depositors of the party of the first part in full. A considerable portion of the assets of the party of the first part consists of real estate located in the City of Buffalo and elsewhere; certain of this property is incumbered. Such sums as shall be needed for the purpose of carrying this property, subject to the limitation hereinafter mentioned, shall also be advanced by the party of the second part when and as the same shall be required.</p> <p>“Nothing herein contained" shall without the consent of the party of the second part require it to pay any portion of the principal secured by either of such mortgages upon the real estate of the party of the first part.</p> <p>“Third;. For all advances made by the party of the second part under the preceding paragraph, it shall be entitled to receive interest at the rate of six per centum per annum from the time of the advance until the money advanced be refunded.</p> <p>“Fourth: The party of the second part shall also he entitled to receive as compensation for its services in the matter of such liquidation the sum of Twenty Thousand Dollars.</p> <p>“Fifth: In the management of the property of the party of the first part hereinbefore referred to, and in the conversion of its assets, due diligence shall be used to make the conversion as rapidly as it can be done without undue sacrifice.</p> <p>“The board of directors of the party of the second part shall at all times have the controlling voice as to the method of such conversion.</p> <p>“Sixth: Jacob Dilcher, the president of the party of the first part, shall be employed to assist in the conversion of the assets of the party of the first part and his salary shall be paid out of the assets of the party of the first part hereinbefore referred to, at the rate of Four Thousand Dollars per annum.</p> <p>“Seventh: The legal services incident to the liquidation of the party of the first part shall be performed by Hoses Shire and Robert F. Schelling, or by such other counsel as shall be satisfactory to the party of the second part. ' The compensation for the services so rendered shall be paid out of such assets and the amount thereof shall be subject to audit and approval by both of the parties hereto.</p> <p>“Eighth: Each of the parties shall devote its best energies to the conversion of such assets as speedily as possible, having due regard to the avoidance of sacrifice with respect thereto.'</p> <p>“ The books and papers of the party of the first part shall be placed in the custody and control of the second party, subject to the' inspection of the party of the first part, or its officers, at all times. The first party shall take no further deposits after this date, and so far as is possible the influence of its officers shall be directed to secure to the party of the second part such accounts heretofore kept with the party of the first part, as shall be deemed desirable.</p> <p>“Ninth: When the conversion has proceeded to such an extent as to render it necessary, a receivership shall be applied for, if thought best, to dissolve the party of the first part. Such receiver shall be nominated by the party of the second part; and in that event the receiver shall serve to a conclusion without personal charge of fees or commissions. No receivership shall be applied for without the consent of the party of the second part, nor shall any of the assets handed over to it or pledged to it be taken from its possession, except through conversion, until it shall have been fully paid for all sums theretofore advanced by it, including interest thereon and its compensation as hereinbefore fixed.</p> <p>“ Tenth: The party of the first part shall change its place of business to the banking office of the party of the second part, subject to the approval of the Superintendent of Banks.</p> <p>“Eleventh : The party of the first part agrees that it will procure and deliver to the party of the second part a proper guaranty of certain of its directors and stockholders against any and all loss which it may in any wise sustain by reason of any advance by it made, pursuant to this agreement. No such guaranty shall render any one director liable for the engagement of another, nor for more than the par value of his stock.</p> <p>“In Witness Whereof, the parties hereto have caused their respective corporation seals and signatures of their respective executive officers to be hereunto affixed the day and year first above written.</p> <p>“ METROPOLITAN BANK</p> <p>“ [seal] By Jacob Dilcher, Prest.</p> <p>“THE GERMAN BANK</p> <p>“ [seal] By E. Á. Georger, Prestí</p> <p>In accordance with the terms of said agreement the German Bank undertook such liquidation and payment of said depositors of the Metropolitan Bank whose deposits amounted to upwards of $870,000, and which in the manner mentioned were paid in full.</p> <p>While the nominal value • of the assets transferred to the German Bank was largely in excess of the deposits, their value so shrank on liquidation that they were not sufficient to repay the moneys which had been advanced in paying off the depositors and to satisfy the sum to be allowed for liquidating services, and subsequently a judgment was recovered by the German Bank against the Metropolitan Bank for the sum of $237,289.47, which largely represented this deficiency, the principal amount, however, being somewhat reduced by subsequent realization from assets.</p> <p>After a while the German Bank also became insolvent, and passed into the hands' of a receiver, and subsequently any claim which it had against the Metropolitan Bank, or these defendants as stockholders therein on account of said judgment and transaction hereinbefore stated, was assigned to the plaintiff. Various other facts of importance will be stated in the course of the opinion.</p> <p>Every principle of equity and fair dealing requires that the stockholders of the Metropolitan Bank make good to plaintiff the balance of the money used solely to pay off the depositors of that bank. (Bannatyne v. McIver, L. R. [1 K. B. 1906] 103; Blackburn Bldg. Soc. v. Cunliffe, L. R. [22 Ch. Div.] 61; Wenlock v. River Dee Co., L. R. [19 Q. B.] 155; Matter of Wrexham, etc., Ry. Co., L. R. [1 Ch. 1899] 440; N. B. Society v. Luce, L. R. [43. Ch. Div.] 158; Matter of Cork & Y. Ry. Co., L. R. [4 App. Cas.] 748.) The judgment recovered by the German Bank against the Metropolitan Bank, and founded upon the agreement of August 10, 1901, conclusively fixes the liability of the latter’s stockholders, no proof of fraud or collusion having been offered. (Gates v. Preston, 41 N. Y. 113; Newton v. Hauck, 48 N. Y. 676; Goebel v. Iffla, 111 N. Y. 170; Belmont v. Coleman, 21 N. Y. 96; Holland v. Duluth Iron Co., 65 Minn. 324; Nichols v. Stevens, 123 Mo. 96; Bruce v. Platt, 80 N. Y. 379; Long v. Lutz, 180 N. Y. 254; Howarth v. Angle, 162 N. Y. 179; Knickerbocker Trust Co. v. Ise-lin, 185 N. Y. 54.) Plaintiff established its standing as a creditor of the Metropolitan Bank and the relief demanded in its complaint should have been granted. (Wallach v. Dryfoos, 140 App. Div. 438; People v. Remington, 121 N. Y. 328; De Cordova v. Barnum, 130 N. Y. 615; Lewis v. United States, 92 U. S. 618; Canonge v. Fuselier, 10 La. Ann. 697; Browne v. Vredenburgh, 43 N. Y. 195; Farron v. Sherwood, 17 N. Y. 227; Higgins v. Newtown, etc., R. R. Co., 66 N. Y. 604; Hartley v. Murtha, 5 App. Div. 408; Rubin v. Cohen, 129 App. Div. 395.)</p> <p>The principles of equity and fair dealing do not require that the stockholders of the Metropolitan Bank make good to plaintiff the balance of the money used solely to pay off the depositors of that bank. (Matter of Wrexham, etc., Ry. Co. [L. R. 1 Ch. 1899] 440; Matter of Birkbeck Permanent Benefit Building Society, 106 L. T. 968; R. F. & Ins. Co. v. Maison Casway, Lim., 108 L. T. 87; Bannatyne v. McIver, 152 L. T. 150; Browder & Co. v. Hill, 136 Fed. Rep. 821; Beach on Mod. Eq. Juris. § 806; Harris Law of Subrogation, § 797; Baldwin v. Moffett, 94 N. Y. 82; Perkins v. Hall, 105 N. Y. 539; Guckenheimer v. Angevine, 81 N. Y. 394; Sheldon on Subrogation, 42; German Bank v. United States, 148 U. S. 573.) There was not in the agreement of August 10,1901, or subsequently, any promise, express or implied, by the Metropolitan Bank that it would itself pay the German Bank the $20,000 for services in liquidating, or repay it anything on account of the advances agreed to be made, and, therefore, there is no “ debt ’ of the Metropolitan Bank, and consequently no individual responsibility of any of its stockholders. The “ engagement ” of the Metropolitan Bank was that the German Bank might reimburse itself out of the assets and resort to the bond, if necessary. (Schrader v. Manfrs. Nat. Bank, 133 U. S. 67; Ward v. Joslin, 186 U. S. 142; Lawson on Cont. 50; 2 Addison on Cont. 23, 1026, 1038; Beach on Cont. §§ 14, 779;' Salisbury v. Philips, 10 Johns. 57; N. L. Ins. Co. v. Mooney, 108 N. Y. 118; Jewett v. Brownell, 22 N. Y. S. R. 410; McNeal v. Hayes Machine Co., Inc., 118 App. Div. 138; Cole v. M. I. Co., 133 N. Y. 164; Hurd v. N. Y. C. & Steam Laundry Co., 167 N. Y. 89; La Montague v. Bank of New York, 183 N. Y. 181; Lynch v. Onondaga Salt Co., 64 Barb. 558.) The' claim, if any, of the German Bank against the Metropolitan Bank is not a contract, debt or engagement of the Metropolitan Bank upon which a stockholder can be liable within the meaning of the Banking Law. (Richmond v. Irons, 121 U. S. 27; Schrader v. M. Nat. Bank, 133 U. S. 67; Leighton v. Knapp, 115 N. Y. Supp. 1040; Ward v. Joslin, 186 U. S. 142; Close v. Potter, 155 N. Y. 145; Central Trans. Co. v. Pullman Co., 139 U. S. 24; California Bank v. Kennedy, 167 U. S. 362; Knowlton v. Congress Spring Co., 57 N. Y. 518; Hart v. City of New York, 201 N. Y. 45; Johnson v. Dahlgren, 166 N. Y. 354; Coffey v. Burke, 132 App. Div. 128.) The judgment obtained by the German Bank against the Metropolitan Bank was (1) fraudulent and void. as against the stockholders of the Metropolitan Bank and (2) even if not fraudulent was not conclusive or even evidence against them. (Hirschfield v. Bopp, 145 N. Y. 84; Breck v. Brewster, 153 App. Div. 800; Hirschfield v. Fitzgerald, 157 N. Y. 166; Terry v. Little, 101 U. S. 216; Marshall v. Sherman, 148 N. Y. 9; Stephens v. Fox, 83 N. Y. 313; Farnsworth v. Wood, 91 N. Y. 308; Thompson v. Knight, 74 App. Div. 319; Strong v. Wheaton, 38 Barb. 616; Berridge v. Abernethy, 24 Wkly. Dig. 513; Truesdell v. Chumar, 15 Hun, 416; Whitney Arms Co. v. Barlow, 63 N. Y. 12.)</p>

. The reversal was upon questions of law only, the facts having been examined and no error found therein. The facts, so far as material, are stated in the opinion. The defendants had no right to sell the cotton which they, as brokers, had bought for the plaintiff without notice to him and demand upon him for additional margin, and whatever unsuccessful efforts the defendants may have made to give this notice or make this demand will not avail them.

The nature of the action and the facts, so far as material, are stated in the opinion. Plaintiff being a guest of the defendant, it was bound to serve him with meals in its café as long as that relation continued, and the court erred in refusing to so rule when requested. (Krohn v. Sweeney, 2 Daly, 200; Beale on Innkeepers, §§ 16, 121, 169, 112; Johnson v. C. F. Co., 80 Minn. 310; Wintermute v. Clark, 5 Sandf. 242; Kaplan v. Titus, 140 App. Div. 416; Luchea v. Omel, 46 App.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 25, 1912, which reversed a judgment of the Delaware County Court rendered upon a verdict convicting the defendant of a violation of the Liquor Tax Law and dismissed the indictment.</p> <p>The facts, so far as material, are stated in the opinion.</p>

The facts, so far as material, are stated in the opinion. The charge of the trial judge was erroneous. (People v. Hill, 37 App. Div. 327; People v. Wood, 126 N. Y. 249; Union Bank v. Mott, 39 Barb. 180; Green v. White, 37 N. Y. 405; Capron v. Thompson, 86 N. Y. 418; Bolte v. T. A. R. R. Co., 35 App.

<p>Real property — easements — statements in prospectus of realty improvement company that purchasers of lots could connect with sewers and water systems — when company cannot cut off connections made by grantee of purchaser, who used premises for boarding house, without permission of company.</p> <p>1. An improvement 'company, defendant’s grantor, undertook the development of certain lands, and for that purpose laid out streets and installed sewer and water systems, and filed a map of the property in the office of the registrar of the county in which the land was situated. It published and circulated circulars, booklets and advertisements to attract purchasers, containing statements to the effect that complete systems of sewer and water and gas maihs had been constructed for which there was to be no assessment, and representing in effect to purchasers that they would have the right to connect their properties with said systems without any assessment for the cost thereof. Plaintiff’s grantor bought a lot knowing of and relying upon these representations. Reid, that'representation that water and sewer systems had been completed, and purchasers of lots would not be assessed for the same, necessarily implied an agreement that such purchasers should have the right to make connections therewith, and the ease is the same as though the connections had already been made.</p> <p>2. After plaintiff had entered into a contract for the erection of a building on her lots, defendant, which had succeeded to the title of the improvement company, gave notice in substance that it was its purpose to prevent the erection of houses for boarding house, inn or hotel purposes. Plaintiff obtained a permit to connect with ,ihe sewer and water systems upon the representation that the house was to be used as a private house. Upon the erection of her house, plaintiff conducted the business of a boarding house. Thereafter defendant notified the plaintiff that it would cut off the connection of her house with its sewer and water supply pipes, and thereupon this suit was brought. Reid, that plaintiff acquired the rights appurtenant to the premises possessed by her grantor, and had the right to make connections at convenient points with the existing systems and could not be deprived of those rights because she conducted a boarding house or by reason of the misrepresentation in procuring the defendant’s consent.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The defendant, having taken exclusive control of the action brought by Krause, and having defended that action through to judgment, is estopped from claiming that the Krause claim was not covered by the policy, and it was, therefore, error for the trial court to grant the nonsuit. (Rosenbloom v. Maryland Casualty Co., 153 App. Div. 23; Brassil v. Maryland Casualty Co., 147 App.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 27, 1912, which reversed a determination of the Appellate Term reversing a judgment of the Municipal Court of the city of New York in favor of plaintiff and granting a new trial. The nature of the action and the facts, so far as material, are stated in the opinion.

■ Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered January 7, 1914, which reversed an order of Special Term granting a motion for a peremptory writ of mándamus to compel audit of a certain claim of the relator and the conveyance to it of certain interests in barge canal lands.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 15,1912, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover damages arising from loss of services and companionship by reason of personal injuries sustained by plaintiff’s Wife through the alleged negligence of defendant.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 21, 1912, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action of ejectment.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered October 16, 1912, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term in an action to recover for the killing of cows belonging to plaintiff through the alleged negligence of defendant.</p>

Appeal, in each of the above-entitled actions, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 1, 1912, upon, an order reversing so far as appealed from the judgment of Special Term decreeing that upon the evidence taken at the trial and upon the pleadings the plaintiffs were entitled at the time the action was instituted to the injunction prayed for, but dismissing the complaint with costs to the plaintiffs on the…

<p>Appeal from ah order of the Appellate Division of the Supreme Court in the third judicial department, entered March 13, 1914, which affirmed an order of Special Term denying a motion for a writ of mandamus to compel the defendant to pay to the relator salary as governor of the state of New York.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered November 27, 1912, reversing a judgment in favor of plaintiff entered upon a verdict and granting a new trial in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant.</p>

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 3, 1912, which affirmed a determination of the Appellate Term reversing a judgment of the Municipal Court of the city of New York in favor of defendant and granting a new trial in an action against the vice-president of a corporation to recover a penalty as prescribed in section 33 of the Stock Corporation Law for failure to exhibit to…

Appeal by the defendant Arnstein from an order of the Supreme Court, Appellate Division, First Department, which reversed an order of the Court of General Sessions, New York City, sustaining demurrers to two indictments. The first indictment, containing two counts, charges' the defendant Arnstein and five others with the crime of grand larceny in the first degree.

favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term, and granting a new trial in an action to reinstate a mortgage on real property, to cancel and annul the satisfaction piece thereof and to foreclose said mortgage.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 9, 1914, which affirmed an order of Special Term denying a motion to continue pendente lite a preliminary injunction restraining the defendants from enforcing the provisions of the public hack ordinance in the city of New York.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered November 21, 1913, which affirmed an order of Special Term denying a motion to continue pendente lite a preliminary injunction restraining the defendants from enforcing the provisions of the public hack ordinance in the city of New York.