Volume 212 — New York Reports

Appeal in each of the above-entitled proceedings from an order of the Appellate Division of the Supreme Court in the third judicial department, entered October 20, 1913, which affirmed, as matter of law, and not in the exercise of discretion, ■ an order of Special Term denying the petitioner’s application for a writ of mandamus to compel the state treasurer to accept from the Long Sault Development Company the sum of $25,000 as a payment due to the state of New York under…

The action was to procure a judgment of registration of the title of the plaintiff to certain real estate in the city of Mew York. Of the many defendants, The People of the State of Mew York alone answered the complaint. While our determination of the principal questions presented by the record before us depends directly upon the construction of certain provisions of section 385 of the Eeal Property Law (Laws of 1909, ch. 52; Cons.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 31, 1913, affirming a determination of the Appellate Term which affirmed an order of the City Court of the city of New York granting a motion by plaintiff for judgment in his favor upon the pleadings and the judgment entered thereon. The pleadings before this court were the complaint and' the demurrer to it.

which affirmed a judgment rendered at a Trial Term for the county of New York upon a verdict convicting the defendant of the crime of bribery. The facts, so far as material, are stated in the opinion.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February 13, 1914, which affirmed a judgment rendered at a Trial Term for the county of New York upon a verdict convicting the defendant of the crime of arson 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 Court in the second judicial department, entered February 17, 1912, reversing a judgment in favor of defendant rendered by the Municipal Court of the city of ¡New York. The nature of the action and the facts, so far as material, are stated in the opinion. This is a remedial statute and1'is to be liberally construed. (Kline v. Green, 5 Misc.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 15, 1914, which affirmed an order of Special Term denying a motion to continue pendente lite a preliminary injunction restraining defendants from enforcing the provisions of the public hack ordinance of the city of New York.

The nature of the action and the facts, so far as material, are stated in the opinion. The testimony shows not only title by prescription in plaintiff, but also that plaintiff was in possession at the time of bringing suit and at the time of trial. (Wiechers v. McCormick, 122 App.

The nature of the action and the facts, so far as material, are stated in the opinion. ' A nonsuit should have been granted because no negligence on the part of the defendant was established. (Maue v. E. R. R. Co., 198 N. Y. 221; Chrystal v. T. & R. R. R. Co., 105 N. Y. 170; O’Brien v. Erie R. R. Co., 210 N. Y. 96; Albrecht v. R. S. & E. R. R. Co., 205 N. Y. 230; Pollitt v. K. C. El.

<p>Appeal, in each of the above-entitled actions, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered February 5, 1912, affirming by a divided court a judgment in favor of plaintiff rendered upon a verdict.</p> <p>The 'actions were tried together — the first being an action by an infant against his employer to recover damages alleged to have been sustained by reason of the employer’s negligence; and the second being the father’s action against the same defendant to recover for loss of services.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The plaintiff failed to prove the cause of the explosion, and thus did not take the first step necessary to impose liability on the defendant. (Grant v. R. R. Co., 133 N. Y. 659; Carney v. Minn. Dock Co., 191 N. Y. 301.) Defendant’s method of manufacturing the geysers and attaching the stick having been employed by it and other companies for a great many years and having proved safe, no spark, ignition or explosion ever resulting, no cause of action is made out by the criticism of this method by the witness Layng. (Pearsall v. R. R. Co., 189 N. Y. 474; Sisco v. L. & H. R. R. Co., 145 N. Y. 296; Kascsak v. C. R. R. Co., 207 N. Y. 246.)</p> <p>Plaintiff proved by sufficient evidence the cause of the explosion. (Crapo v. City of Syracuse, 183 N. Y. 395; Stott v. Churchill, 15 Misc. Rep. 80; 157 N. Y. 692; Latorre v. Central Stamping Co., 9 App. Div. 145.) Upon the evidence in this record it can be said there was always present the danger of an explosion resulting from friction, and consequently it was negligence to use steel nails instead of brass nails. (Crapo v. City of Syracuse, 183 N. Y. 395; Mather v. Rillston, 156 U. S. 391.)</p>

Gross-appeals from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 14, 1913, modifying and affirming as modified a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term, The nature of the action and the facts, so far as material, are stated in the opinion.

This action was brought to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of the defendant, his employer. The complaint alleged that while standing by the side of a track in defendant’s railroad yard flagging a passing train plaintiff was struck on the head by a large piece of coal, which fell from the locomotive tender, thereby receiving the injuries complained of. Further facts are stated in the opinion.

The defendant advertised for bids to grade, regulate, curb, lay crosswalks and flag Washington avenue in the borough of Queens, between Academy street and Vernon avenue, a distance of about three thousand feet. Washington avenue was not actually opened as a street where the work was to he done. A part of that distance at either end it ran through high ground which had to be excavated.

The facts, so far as material, are stated in the opinion. The charge against relator was insufficient, as matter of law, assuming it to be true, to warrant his dismissal. (Maher v. Hibernia Ins. Co., 67 N. Y. 283; State v. Smith, 63 Vt. 201; Wood v. State, 48 Ga. 192; Hatcher v. Dunn, 102 Iowa, 411; State v. Brady, 100 Iowa, 191; U. S. v. Peters, 87 Fed. Rep. 894; Putnam v. Osgood, 51 N. H. 192; Matter of Blum, 9 Misc. Rep. 571; People v. Glennon, 37 Misc.

The facts, so far as material, are stated in the opinion. The sufficiency of the excuse offered by the relator in palliation of his conduct was addressed solely to the judgment and discretion of the police commissioner and his unfavorable consideration of that excuse presented no question of fact for determination by the Appellate Division. (People ex rel. Masterson v. French, 110 N. Y. 494; People ex rel. Hogan v. French, 119 N. Y. 493; People ex rel.

The facts, so far as material, are stated in the opinion. The act of the commissioner in exercising the jurisdiction conferred upon him by statute and in assuming the determination that the contract should be canceled because improvidently made and not because it had been breached by the contractor, is a judicial act.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 17, 1913, which affirmed an order of Special Term dismissing-a writ of habeas corpus and remanding the relator to custody-</p> <p>The facts, so far as material, are stated in the opinion.</p>

<p>Appeal from on order of the Appellate Division of the Supreme Court in the third judicial department, entered January 29, 1914, which affirmed a judgment of the Essex County Court rendered upon a verdict convicting the defendant of a violation of section 43 of the Penal Law.</p> <p>The facts, so far as material, are stated in the opinions.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 13, 1912, which reversed an interlocutory judgment - of Special Term sustaining demurrers to separate defenses set up in the answer and overruled such demurrers.

<p>Executors and administrators — estate of citizen of Italy dying intestate within this state — when Italian consul not entitled to letters of administration in preference to brotlier of intestate, although latter has no interest in estate — construction and effect of treaties relating thereto.</p> <p>1. Where a subject of the kingdom of Italy died, intestate, in this state leaving a wife, a child, a father and a mother who reside in Italy, and a brother who resides in this state, the latter, although he had no interest in decedent’s estate, was entitled, under section 2660 of the Code of Civil Procedure as it stood in 1913, to letters of administration thereon, and letters previously issued to the Italian consul should, upon the petition of decedent’s brother, have been revoked and the brother appointed administrator in his stead.</p> <p>2. It is contended that a treaty provision confers on the Italian consul a right to letters of administration superior to that of decedent’s brother, because the consular convention of 1878 between the United States and Italy provides that the 'consular officers and representatives of the kingdom of Italy shall have u all the rights</p> <p>* and privileges which are or may hereafter be granted to the officers of the same grade of the most favored nation; ” that the consular convention of 1911 between the United States and Sweden confers upon the consuls of Sweden the exclusive right to administer upon the estates of their citizens dying in the United States, and, hence, that under the most favored nation clause of the Italian convention a like privilege must he held to be enjoyed by the consular representative of Italy. The convention between the United States and Sweden provides that if a citizen of either country dies in the territory of the other, without having in the country of his decease any known heirs or testamentary executors by him appointed, the consular officers of the nation to which the deceased may belong shall “ so far as the laws of each country will permit and pending the appointment of an administrator * * * take charge of the property left by the deceased for the benefit of his lawful heirs and creditors and, moreover, have She right to be appointed as administrator of such estate.” Held, that this provision is to be construed as adding such foreign consuls to the list of those eligible as administrators so as to enable them to administer upon the estates of their fellow-citizens when no one having a prior right under the local law is competent or willing to act; that it is not intended by this provision to supersede the local law and confer a right of administration upon the foreign consul that is exclusive and paramount to all others; and that, therefore, the right of the Italian consul to letters of administration in this case is not superior to that of decedent’s brother. (Bocea v. Thompson, 228 U. S. 317, cited and considered.)</p>

<p>(1.) Murder—Dying Declarations.</p> <p>The principle upon which dying declarations are received in evidence is that the mind, impressed with the awful idea of approaching dissolution, acts under a sanction equally powerful with that which it is presumed to feel by a solemn appeal to God upon an oath. The evidence, however, should be clear that the declarations were made under a sense of impending death without any hope of recovery.</p> <p>(2.) Same—Insufficiency of preliminary proof to warrant admission IN EVIDENCE OF STATEMENT AS TO DYING DECLARATION.</p> <p>Upon a trial for murder it appeared that a strange man said to the deceased, when received at the hospital, that his condition was critical, and he was going to die, and they wanted an ante-mortem statement for purposes that might arise later, and the deceased said “ all right, he would give it; ” that thereupon he made a statement which was written upon a printed blank containing a clause to the effect that he made the statement “under the influence of an impression that I am about to die, and have no hopes of recovery from the effects of my wound. I make this statement under that impression; ” that this latter clause was read to him with the rest of the statement, and he said it was true. Held, that the preliminary proof was too slight and indefinite to justify the admission of the statement in evidence as a dying declaration.</p> <p>(3.) Same.</p> <p>The judgment, however, should not be reversed for the error since the guilt of the defendant was fully proven without it.</p>

The facts, so far as material, are stated in the opinion. On January 1,1914, two new county judgeships for Kings county came into existence — two new offices having been created by the amendment of section 14 of article 6 of the Constitution, by the affirmative action of the electors of the state at the election held in November, 1913. (Whitman v. Nat. Bank, 176 U. S. 559; H. & S. J. R. Co. v. State Board, 64 Mo. 294; Forbes v. State, 43 Atl.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered March 6,1914, reversing a judgment of the Kings County Court rendered upon a verdict convicting the defendant of the crime of rape in the second degree and granting a new trial.</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. There is no merit in defendant’s challenge to the panel of jurors. The trial court properly overruled it. The reversal by the Appellate Division, which was based solely upon this point, was erroneous. (Gardiner v. People, 6 Park. 155; Gardiner v. State, 26 Atl.

The nature of the action and the facts, so far as material, are stated in the opinion. The defendant Thomas pleaded and proved a valid release. (Simons v. American Legion of Honor, 178 N. Y. 263.) The claim against Thomas was not liquidated. The release was given for a good consideration.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered December 4, 1912, which reversed an order of the Broome County Court setting aside a verdict theretofore directed by the court in favor of plaintiff and granting a new trial, and directed judgment for the plaintiff. The facts, so far as material, are stated in the opinion.

<p>Corporations—when words in statutes apply only to domestic corporations — foreign religious corporation not required to obtain leave of court for sale of its property in this state.</p> <p>1. Broad words in a statute conferring powers and privileges on “a corporation” or on “any corporation” apply only to corporations organized under the laws of this state. The legislature in such eases is dealing with its own creations, whose rights and obligations it may limit, define and control.</p> <p>2. The words of section 12 of the Religious Corporations Law (Cons. Laws, eh. 51) prohibiting religious corporations from selling their real property without leave of the court should be limited to domestic corporations. The prohibition does not extend to foreign corporations.</p> <p>3. The provision of section 21 of the General Corporation Law (Cons. Laws, ch. 23) that “any foreign corporation * * * may take by devise any real property situated within this state * * * and, convey it Toy deed or otherwise in the same manner as‘a domestic corporation,'1'1 does not require a foreign religious corporation to obtain permission of the court before conveying its real property in this state as is required of a domestic corporation.</p>

The facts, so far as material, are stated in the opinion. A debt due to a state as a judgment on a forfeited bail bond is released by a discharge in bankruptcy. (McDonald v. Davis, 105 N. Y. 508; Roosevelt v. Mark, 6 Johns. Ch. 266; Rathbone v. Blackford, 1 Caines, 588; Smith v. Wheeler, 55 App. Div. 170; Matter of Brandreth, 14 Hun, 585; Matter of Alderson, 98 Fed. Rep. 588; Burnham v. Pidcock, 58 App. Div. 273; Matter of Blumberg, 94 Fed.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial depart ment, entered May 2, 1913, which reversed an interlocu tory judgment of Special Term sustaining a demurrer to the complaint and overruled such demurrer. The following question was certified: “Does the complaint state' facts sufficient to constitute a cause of action ? ” The nature of the action and the facts, so far as material, are stated in the opinion.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 20, 1913, which affirmed an order of Special Term denying a motion for the revocation and cancellation of a liquor tax certificate.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The court erred in excluding testimony. (Wharton’s Crim. Ev. [8th ed.] § 262; People v. Stout, 4 Park. Crim. Cas. 71; Matter of Lyman v. Speidel, 163 N. Y. 536; Matter of Purdy v. Driscoll, 40 App. Div. 133; Matter of Halburn v. Canavan, 30 Misc. Rep. 515; Matter of Peck v. Cargill, 176 N. Y. 391; Matter of Cullinan v. Micha, 76 App. Div. 362; 173 N. Y. 610; Matter of Cullinan v. Kray, 82 App. Div. 445; Matter of Cullinan v. Lehr, 40 Misc. Rep. 423; Matter of Wheaton v. Slattery, 96 App. Div. 102; Matter of Cullinan v. Neus, 41 Misc. Rep. 392.)</p> <p>The court properly excluded the testimony of witnesses referred to in the appellant’s brief. (L. 1909, ch. 39, § 27, subd. 2; Matter of Purdy, 40 App. Div. 133; Matter of Cullinan, 76 App. Div. 362; 173 N. Y. 610; People v. Drum, 127 App. Div. 241; People v. Miller, 81 App. Div. 255.)</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered October 16, 1913, which affirmed an interlocutory judgment' of Special Term overruling a demurrer to the complaint and also affirmed an order of Special Term continuing an injunction which restrains the defendant from prosecuting a pending action of law against plaintiff until this action is determined.

Appeal,^ by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 9, 1913, which reversed an order of Special Term granting a motion by plaintiff for judgment in its favor upon the pleadings and denied said motion. The nature of the action, the facts, so far as material, and the question certified are stated in the opinion. The complaint herein states facts sufficient to constitute a cause of action.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 20,1914, which reversed an order of Special Term denying a motion by plaintiff for judgment in its favor upon the pleadings and sustaining defendants’ demurrer to the complaint and granted said motion with leave to defendants to withdraw the demurrer and answer.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 37, 191A, which reversed an order of Special Term directing that certain awards made to unknown owners in condemnation proceedings be paid to petitioner and directed that said awards be paid to the city of New York.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>Neither the original patentees of the lands in question from Governor Nicoll, nor their successors, the trustees of the town of Westchester, held such lands in any governmental capacity; they held the same in their corporate capacity, as representatives of the freeholders of the town, and not in a political capacity as representatives of the sovereign and trustees for the public; and their deed to the appellant’s testator is to be construed accordingly. (Matter of Mayor, etc., 182 N. Y. 361; Town of Westchester v. Davis, 7 Hun, 647; Matter of City of New York, 168 N. Y. 123; People ex rel. Loomis v. Town Auditors, 75 N. Y. 316; People ex rel. M. B. Railway Co. v. Town, 84 N. Y. 565.) The grant to the trustees of the town of Westchester or to their predecessors, in their corporate capacity, included all the land lying in the bed of Westchester creek within the boundaries designated in the Nicoll patent. (Lewis v. City of Utica,, 159 App. Div. 160.) The deed from the trustees of the town of Westchester to the testator of the appellant conveyed not only the upland parcel, No. 234, but also the land under water in parcels 235 and 236, of which they were seized in their corporate capacity as representatives of the freeholders of the town. (Smith v. Bartlett, 180 N. Y. 360; Paige v. Schenectady Ry. Co., 178 N. Y. 102; Matter of Jerome Ave., 120 App. Div. 297.) The deed to Ryan was clearly sufficient to convey parcel 236, which was not a part of the navigable channel. (White v. Nassau Trust Co., 168 N. Y. 149.) The whole beneficial interest in parcels 235 and 236 being in the owner of the upland parcel 234, in any event he is prima facie entitled to receive the awards made for such parcels; when the city as owner of the naked fee therein claims a substantial share of the awards, it assumes the burden of showing what the commissioners have determined to be the value of such fee, and it has made no attempt to sustain such burden in the case at bar. (Yates v. Milwaukee, 10 Wall. 497; Matter of McClellan, 146 App. Div. 594; 204 N. Y. 677; Langdon v. Mayor, etc., 93 N. Y. 129; Town of Brookhaven v. Smith, 188 N. Y. 74; Matter of Bd. of Street Opening, 27 App. Div. 265; Matter of St. Nicholas Terrace, 76 Hun, 209; Matter of Taber, 91 App. Div. 612; F., etc., Co. v. State, 200 N. Y. 400; Matter of City of Buffalo, 189 N. Y. 163.)</p> <p>When title vested in re West Farms road, the fee to damage parcels Nos. 235 and 236 was in the city of New York, as the successor to the town of Westchester. The referee erred in finding that the deed from the trustees of the town of Westchester to Thomas S. Ryan, dated August 14, 1878, conveyed these damage parcels. (North Hempstead v. Hempstead, 2 Wend. 109; Lawrence v. Hempstead, 155 N. Y. 297; Town of Southampton v. Mecox Bay Oyster Co., 116 N. Y. 5; People ex rel. Howell v. Jessup, 160 N. Y. 249; Delancey v. Piepgrass, 138 N. Y. 26; Matter of Mayor, etc., of N. Y., 182 N. Y. 3; Trustees of Brook Haven v. Strong, 60 N. Y. 56; Sage v. Mayor of N. Y., 154 N. Y. 61; Matter of Mayor, etc., of N. Y. v. Hart, 95 N. Y. 443; Smith v. Bartlett, 180 N. Y. 366; Archibald v. N. Y. C. & H. R. R. R. Co., 157 N. Y. 574.) The award of $35,046.35 principal and $9,053.64 interest made by the commissioners for damage parcel No. 234 includes the value of all rights appurtenant thereto in, under or over the waters of Westchester creek or the lands under the waters of Westchester creek. (Sage v. Mayor, etc., 154 N. Y. 70; Langdon v. Mayor, etc., 93 N. Y. 129; Matter of City of New York, 168 N. Y. 134; Pegram v. N. Y El. R. R. Co., 147 N. Y. 135; Western Union Tel. Co. v. Sheppard, 169 N. Y. 170.) The awards made by the commissioners of estimate and assessment for damage parcels Nos. 235 and 236 are for the value of the interest of the fee owner thereof, which is. the city of New York. (De Peyster v. Mali, 92 N. Y. 261; Matter of Decatur Street, 196 N. Y. 286; Matter of Schneider, 199 N. Y. 581.)</p>

<p>Appeal from, an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 1, 1914, which affirmed an order of Special Term, in a special proceeding instituted under section 32 of the General Corporation Law, declaring'illegal and void a pretended election of directors of the Springfield, L. I., Cemetery Association and ordering that a new election be held.</p> <p>The Springfield, L. I., Cemetery Association was organized in and about March, 1908, under the Membership Corporations Law.</p> <p>The annual meeting of the society for the transaction of business and the election of two directors for a term of three years each was duly appointed to be held at the office of said society in the city of New York on the 27th day of March, 1914, and due notice of said meeting was published and served on all parties entitled thereto.</p> <p>At the annual meeting there was present in person all of the directors and officers, and in person or by proxy the holders of certificates of indebtedness issued by the society and more than one-fifth of the owners of lots and plats. The lot owners and certificate holders participated in the meeting and voted without objection upon all questions arising until the matter of electing two directors for the ensuing year was reached.</p> <p>The defendant Grilleran, who was president, announced that only the owners of lots and plats in the cemetery would be allowed to vote for directors. The ruling of the president was questioned, and an appeal taken therefrom to the meeting, which the president refused to entertain. Thereupon a motion to adjourn was made and the president having also refused to entertain that motion, the resolution was put to a vote by the vice-president and carried. The defendants Grilleran, Hartman and Weiss and certain lot owners remained in the meeting and elected Hartman and Weiss as directors and the two named together with Grilleran thereupon undertook to hold a meeting of the board of directors. Neither of the defendants Hartman or Weiss was a lot owner or the owner of any certificate of indebtedness of the corporation.</p> <p>The Special Term held that the ruling of the president was illegal and void; that the election of Hartman and Weiss was illegal and void, and their acts as pretended directors were illegal and void, and ordered a new election to be held upon proper notice, and that upon said election all holders of certificates of indebtedness appearing of record on the books of the society were entitled to vote.</p> <p>The statute is plainly a preferential one, and designated three classes interested in the corporation who have the exclusive right of electing the directors in the order named: First. Lot owners, if one-fifth are present. Second. If one-fifth of lot owners are not present, then a majority of stockholders or certificate holders may elect. Third. If the lot owners do not or cannot elect, or the stockholders or certificate holders cannot or do not elect, then a majority of the hoard of directors may elect. (L. 1909, ch. 40, § 64; 54 Mo. 334; Fower v. Scully, 72 Penn. St. 456; 20 Ark. 410; People v. Craig, 129 App. Div. 851.)</p> <p>The statute and the by-laws of the society clearly give the holders of certificates of indebtedness a right to cast one vote for each $100 of such indebtedness at all meetings of the corporation and at the election of directors, and the ruling of the president disfranchising the certificate holders invalidated all subsequent proceedings. (A. E. Bank v. Woodlawn Cemetery, 194 N. Y. 116.) The election of Hartman and Weeks was illegal and void. (People v. A. & S. R. R. Co., 55 Barb. 344; Matter of Schwartz, 77 N. J. L. 415; Com. v. Patterson, 158 Penn. St. 476; Cook on Corp. § 610.) Hartman and Weiss were ineligible to serve as directors, and their election was properly set aside. (Matter of Ringler Co., 204 N. Y. 30; Matter of Newcomb, 18 N. Y. Supp. 16.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The language complained of is not libelous per se. (Odgers on Libel & Slander, 93; Hemmens v. Nelson, 138 N. Y. 517; Morrison v. Smith, 177 N. Y. 369; Hayes v. Ball, 78 N. Y. 418; Reporters’ Assn. v. Sun P. & P. Co., 186 N. Y. 437.) The letter in question was privileged. (Klinck v. Colby, 46 N. Y. 427; Hamilton v. Eno, 81 N. Y. 116; Bowsky v. Cimiotti Unhairing Co., 72 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The error in refusing to give the defendant’s request to charge, viz., that “In order to justify the jury in awarding a sum beyond mere compensation the plaintiff must establish the fact of actual malice, and must do so by á preponderance of evidence,” requires the reversal of the judgment.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 10, 1914, which annulled, on certiorari, a determination of the defendant in dismissing the relator from the police force of the city of New York and reinstated the relator in his position.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>A policeman is constructively at least always “ on duty ” and he is amenable to punishment for offenses committed by him while not actually engaged in patrol duty. (People ex rel. Connolly v. Police Comrs., 11 Hun, 403; People ex rel. Hayes v. Carroll, 43 Hun, 438; Hart v. Kennedy, 39 Barb. 186; Coxson v. Doland, 2 Daly, 66.) The statute does not mean and was never intended to mean that . after a policeman finished his “ tour of duty,” and was not on ‘6 reserve duty,” he was absolutely free to do as he pleased and could not be compelled to do something which would tend to promote the “ efficiency of policemen.” (People ex rel. Ramsdell v. Jewett, 15 Misc. Rep. 227; People ex rel. Robinson v. Bell, 29 N. Y. S. R. 551.) The instructions which the relator received and the drills which he was required to attend, once a week, for seven weeks, for the purpose of preparing the members of the police force for the annual police parade, was not a “ tour of duty,” or apart of a “ tour of duty,” within the meaning of the statute. (L. 1911, ch. 360, § 1.) The Three-Platoon Law did not justify the relator in disobeying the orders of his superior officer. {People ex rel. Gallagher v. Waldo, 145 N. Y. Supp. 1139.) Whether or not the order to report for instructions or drill violated the provisions of the Three-Platoon Law was not for the relator to decide. (People ex rel. Masterson v. French, 110 N. Y. 494; Matter of Grimley, 137 U. S. 147; Johnstone v. Sutton, 1 T. R. 546.)</p> <p>Commanding officers cannot assign sergeants, roundsmen and patrolmen in cities of the first and second class to more than one tour of duty exceeding eight consecutive hours in each twenty-four hours; such sergeants, roundsmen and patrolmen cannot be required to perform drill duty or to receive instructions in drilling in addition to and within the twenty-four hours in which they have already performed their regular eight-hour tour of duty. (L. 1911, ch. 360.)</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 21, 1913, which affirmed an order of Special Term denying a motion by plaintiff for judgment in his favor on the pleadings. The following question was -certified: “Does the amended complaint herein state a cause of action against the defendant ? ” The nature of the action and the facts, so far as as material, are stated in the opinion.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered' May 1, 1914, which affirmed an order of Special Term granting a motion by defendant for judgment in its favor upon the pleadings.

<p>(1.) Mubdeb—Value op Testimony op Degraded Witnesses Question for Jury.</p> <p>The value of testimony of witnesses of a degraded character, in behalf of the prosecution, on a trial for murder, is for the consideration of the jury quite as much as any other, and when it is submitted under proper instructions it is conclusive upon this court, unless it is inherently improbable or clearly against the weight of other more credible evidence.</p> <p>(2.) Same—Issues Between Witnesses fob Prosecution and for Defendant Questions fob Juby.</p> <p>Evidence offered on behalf of the prosecution, on trial for murder, identifying the defendants as the men who committed the crime and evidence offered on behalf of defendants to establish an alibi, examined, and held, that the issues between the various witnesses were for the jury.</p> <p>(3.) Same—Testimony as to Identification.</p> <p>After the jury had retired for deliberation they returned to the court room and asked the following question: “ Were both defendants identified at the hospital by the man who died, Lee Kay?” The court, with the consent of counsel, responded: “ There is testimony that both defendants were brought into the presence of Lee Kay; that Lee Kay said something in their presence. At the suggestion of the court the district attorney did not press for an answer to the question as to what Lee Kay then said. You may retire.” It is said that this episode supports the inference that the jury were impressed with the belief that Lee Kay’s statements were of cogent force in determining the issue of identity. Held, upon consideration and in view of what was actually shown at the trial in regard to the so-called identification, which ended with a declaration by both defendants that they did not hear, or did not understand, what may have been said by Lee Kay, and in view of the very definite statement that the district attorney “ did not press for an answer as to what Lee Kay then said,” that neither the letter nor the spirit of the testimony under this head requires a reversal of the judgment.</p> <p>(4.) Same.</p> <p>Immediately after the murder one of the defendants was shot by one of two men who pursued the supposed murderers and who were both arrested. It is contended that it was error to exclude certain evidence as to what took place in the Magistrate’s Court on their arraignment for the shooting. Meld, upon examination of the questions asked, that they are so irrelevant to the issues on this trial that the exceptions to the rulings of the court sustaining objections thereto are plainly without merit.</p> <p>(5.) Same—When Affidavits Impeaching Witnesses fob Prosecution not Sufficient to Warrant Granting New Trial on Ground of Newly Discovered Evidence.</p> <p>Affidavits used on a motion for a new trial examined, and held, that the defendants have produced nothing new or substantive that would probably have changed the verdict if it had been produced at the trial. The whole proceeding was an effort' to impeach certain witnesses, and that is not a sufficient reason for granting a new trial on the ground of newly-discoyered evidence, even where the impeachment is successful.</p>

<p>'(1.) Murder—Evidence—Identification.</p> <p>Where, upon a trial for murder, the issue of identification was close, not because the testimony pro and con was doubtful or uncertain, but because it was so direct and positive as to leave no alternative but to accept it as true or reject it as untrue, evidence that witnesses who testified as to the defendant’s identity had given similar testimony in the police station was nothing more than the unsworn confirmation of the testimony of witnesses who had not been impeached except by the usual contradictions inherent in the differing versions of the opposing witnesses, and its reception constituted error of such serious import that it is a sufficient' ground for reversal, even though it was allowed to pass at the trial without objection or exception. The evidence improperly admitted had no probative effect upon the credibility of the witnesses, but bore directly upon the all-important issue of identity and may have been so harmful as to support witnesses who without it might not have been believed.</p> <p>(2.) Same—Prior Inconsistent Statements.</p> <p>Assuming that a witness has been so far impeached on cross-examination as to render it proper to resort to her prior consistent statements for corroboration, it is still necessary to show that they were made under circumstances which precluded the probability of their being inspired by others, and where this has not been done, testimony to the effect that prior to the trial the witness had told the same story that she narrated in court is incompetent.</p> <p>(3.) Same—When Evidence Denying the Truthfulness of Statements Alleged to Have Been Made by Deceased Incompetent.</p> <p>Where a witness for the defense has testified that the deceased was shot by another than the defendant in a quarrel over a ring which the deceased stated he had given to a certain girl and which he accused his murderer of having in his possession, testimony of the girl denying the truthfulness of the statements attributed to the deceased is improperly admitted. The fact in issue was whether the statement had been made by the deceased and not whether it was true.</p>

The facts, so far as material, are stated in the opinion. The rule or doctrine of ejusdem generis must be applied in interpreting the ordinance.

Green, now an incumbent of the office of justice of the City Court of New York, or calling for the election of his successor, and granted said motion. The facts, so far as material, are stated in the opinion. Elections of other City Court justices in even-numbered years for full ten-year terms, if improper, will not justify the holding of an election in 1914. (People ex rel. Simpson Co. v. Kempner, 154 App. Div. 674; 208 N. Y. 16; People ex rel.

Appellate Division of the Supreme Court in the third judicial department, entered May 13, 1912, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term. The nature of the action and the facts, so far as material, are stated in the opinion. Deceased was wrongfully ejected from the defendant’s car; he was sick and unable to take care of himself.

Trial Term upon a verdict convicting the defendant of an attempt to commit the crime of bribery. The facts, so far as material, are stated in the opinion.

Cross-appeals from an order of the Appellate Division of the Supreme Court in the first judicial department, entered August 26, 1914, which affirmed an order of Special Term granting a motion for a peremptory writ of mandamus. The facts, so far as material, are stated in the opinion. A justice should be elected at the general election held in November, 1914, to fill the vacancy arising by reason of the failure to elect in the fall of 1911 a successor to Mr. Justice Delehanty.

The facts, so far as material, are stated in the opinions. Mandamus is the proper remedy for the relief herein sought. (Matter of Mayor, etc., 49 N. Y. 150; People ex rel. Miller v. Peck, 73 App. Div. 89; People ex rel. Brink v. Way, 92 App. Div. 82; Garrison v. Mayor, etc., 88 U. S. 202; Matter of P. P. & C. I. R. R. Co., 85 N. Y. 489; Matter of Ryers, 72 N. Y. 1; Matter of N. Y. C. & H. R. R. R. Co., 64 N. Y. 60; Matter of City of New York, 156 App. Div. 537; People ex rel.

<p>Tax—special franchise tax — net earnings rule and application thereof —rate upon earning value of property and business is a question of fact — determination of amount to be deducted for charges and expenses of developing and conducting business.</p> <p>1. In ordinary cases, the net earnings rule is the best practical method that the taxing officers and the courts have as yet been able to evolve in order to arrive at the valuation of a special franchise. The term, as so used, means what is left of the gross earnings produced by the property after the legitimate costs, expenses and deductions connected with and arising from its use are paid, and when the rule is invoked it is the duty of the courts to see that it is consistently and correctly applied to the facts of each case.</p> <p>2. It is proper under this rule, first, to exclude from the income or earnings of a street railway company the rental which it received from cars rented to subsidiary companies; second, to include in operating expenses payments by such a corporation for percentages of gross earnings and for car licenses; third, salary paid to a receiver is properly included in such expenses; fourth, the sum spent for the ordinary annual expenses for maintenance, renewals and repairs of equipment, machinery, appliances and structures should be included in the- annual operating expenses, and the sum spent for replacements thereof should not be so included, but should be deemed included or covered in an allowance for depreciation.</p> <p>3. The rate upon the value of the property used constituting a fair return is inherently a question of fact to be decided upon the circumstances, conditions, facts and opinions disclosed by the evidence. The nature of-the'business, whether it be established or experimental, the risks natural or proven attending it, are some of the many varying circumstances which may enter into the determination of a rate of return which must as a rule be left to the good judgment of the tribunals which review the facts as proven.</p> <p>4. Allowance of overhead charges, counting expenses for legal and technical advice, ,of obtaining consents of public bodies and individuals, completing the working organization and essentials preliminary to the beginning of the construction work, interest and taxes during construction and promoters’ and financiers’ profits involve questions of fact.</p> <p>5. Further questions briefly considered and the conclusions of the Appellate Division thereon (Opinion, Laughlin, J., 157 App. Div. 731) approved.</p>

Appeal, by permission, from orders of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 8, 1914, which affirmed interlocutory judgments of Special Term overruling separate demurrers to the same complaint. These appeals come to this court upon two separate orders of the Appellate Division affirming two interlocutory judgments overruling two separate demurrers to the same complaint.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February 13, 1914, which affirmed an order of Special Term sustaining a demurrer to the answer. The following questions were certified: “ 1. Is the first, separate and affirmative defense contained in the answer of the defendant Shubert herein sufficient in law upon the face thereof ? • “2.

The facts, so far as material, are stated in the opinion. Section 159 of the Election Law, as amended by chapter 820 of the Laws of 1913, is unconstitutional because the proofs required of rural voters on the first registration day in default of personal registration are so burdensome and unreasonable as in effect to deprive them of their constitutional privilege to be registered without personal appearance before the registry board.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered August 27, 1914, which affirmed an order of Special Term denying a motion for an injunction pendente lite.

The facts, so far as material, are stated in the opinion. The effect of the subjection of the two damage parcels in question to the terms of the closing act was to extinguish all easements of adjoining property owners, including those created by grant. (Matter of Mayor, etc. [E. 168th St.], 28 App. Div. 143; 157 N. Y. 409; Matter of Mayor, etc. [E. 182d St.], 41 App. Div. 586; Matter of Mayor, etc. [Morris Ave.], 56 App.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial-department, entered July 11,1918, directing the issuance of a peremptory writ of mandamns to the defendants, requiring them to prepare and publish a notice of the offices for which candidates will be nominated in September, 1913, at the primaries to be held by the political parties in and for the county of Bronx, and to omit from such notice any reference to the office of justice of the City Court of the city of New York; and to furnish official primary ballots, tally sheets, statements of results and all other election paraphernalia for said primary election in and for the county of Bronx, and in so doing to omit therefrom any reference to the office of justice of' the City Court of the city of New York; and to accept and to receive no certificate of nomination for the office of justice of the City Court of the city of New York subscribed or made by electors residing within the county .of Bronx.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered November 27, 1912, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for personal injuries alleged to" have been sustained by plaintiff through the negligence of defendant, his- employer.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 1, 1914, which affirmed a judgment of the Court of Special Sessions of the city of New York convicting the defendants of a violation of section 1199 of the Penal Law, which provides that “ any person acting for himself or for others not having been specially licensed, as provided by law, by the superintendent of insurance, who solicits or procures, or aids in the solicitation or procurement of policies or certificates of insurance from, or adjusts losses or in any manner aids "the transaction of any business for, any foreign insurance corporation, which has not executed and filed in the office of the superintendent of insurance, a written appointment of the superintendent to be the true and lawful attorney of such corporation in and for this state, upon whom all lawful process in any action or proceeding against the corporation may be served, is guilty of a misdemeanor.”</p>

' The relator alleged that the commitment under which she was held was void, being based on a judgment entered pursuant to direction of one illegally holding the office of county judge.

Cross-appeals from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 31, 1913, which reversed, an order of Special Term and reduced an assessment by the state board of tax commissioners upon special franchises of the relator for purposes of taxation.

Cross-appeals from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 31, 1913, which reversed an order of Special Term and reduced an assessment by the state board of tax commissioners upon special franchises of the relator for purposes of taxation.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February 10, 1914, which reversed an order of Special Term confirming the report of commissioners of assessment in street opening procedings.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 6, 1914, which reversed an order of Special Term denying a motion by plaintiff for judgment on the pleadings and granted said motion in an action to recover upon an alleged contract of indemnity. The following question was certified: “Does the complaint state facts sufficient to constitute a cause of action ? ”

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 5, 1914, which affirmed an order of Special Term denying a motion for an order directing the superintendent of banks of the state of New York to pay the claim of the city of New York against the Northern Bank of New York in full as a preferred claim. The following questions were certified: “ 1.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 11, 1912, disbarring the appellant herein from prac. tice as an attorney and counselor at law.</p>