Volume 213 — New York Reports

Court in the third judicial department, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial at Special Term and directing judgment in favor of plaintiff. The nature of the action and the facts, so far as material, are stated in the opinion. The appellate court below was without power to review the case upon the merits either as to the law or as to the facts. (Code Civ.

<p>Tax — easements — foreclosure of tax liens — parties — when foreclosure on property subject to private easements does not cut off such, easements.</p> <p>1. When an easement is carved out of one property for the benefit of another the market value of the servient estate is thereby lessened, and that of the dominant increased practically, by just the value of the easement; the assessment of the servient estate is subject to the easements included in the assessments of the dominant estate. Hence, on the foreclosure of a tax lien and a sale of the premises pursuant to sections 1035-1039 of the New York city charter (L. 1901, ch. 466; amd. L. 1908, ch. 490; L. 1911, ch. 65), private easements of light, ah- and access of adjoining owners over the land sold are not extinguished. Such owners are not necessary parties.</p> <p>3. Where the. owners of property to which such easements were appurtenant were made parties to an action to foreclose a tax lien, the easements of those who made default in appearing in the action are not cut off by the judgment taken against them by such default, when it does not appear from the record that there was anything in the complaint to show such defendants that the plaintiff disputed or sought to bar their prior and superior easement of light, air and access over the property which it sought to sell in the action.</p>

<p>Infants — Liquor Tax Law — invalidity of attempted consent by an infant to issue of a liquor tax certificate and prosecution of liquor business.</p> <p>1. Attempted contracts by an infant are incomplete and imperfect, and do not become valid and binding except by the act or failure to act of the infant after he reaches the age of maturity. He is regarded as not having sufficient capacity to understand and pass upon questions involving contractual rights, and, therefore, a person dealing with him does so at his peril, and subject to the right of the infant to avoid his contract when he becomes of age. Nor can an infant by ordinary methods create an agent who will have greater powers than he himself possesses.</p> <p>2. An attempted consent by an infant to the issue of a liquor tax certificate, and the prosecution of that business (Liquor Tax Law [Cons. Laws, eh. 34], § 15, subd. 8; amd. L. 1911, ch. 643, § 2), involves considerations which are in the nature of a property right, and is subject to the infirmities of infancy which would attach to an ordinary contract executed by a minor.</p> <p>3. Distinction pointed out between an act of an infant which only affects himself and his property and an act like the one involved in the present proceeding which is of public consequence.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The trial court correctly found that the policy sued on in this action insured the plaintiffs on the “experience ” basis for losses sustained through the extension of credits to Annie Scheinberg, an “old” customer.

Appeal, by permission, -from an .order of the Appellate Division of the Supreme Court in the first judicial department, entered June 13, 1914, which affirmed an interlocutory judgment of Special Term overruling a demurrer to counterclaims contained in the answer. The Appellate Division certified the following questions: “1. Is each of the counterclaims, numbered 1 to 13, inclusive, of the character specified in section 501 of the Code of Civil Procedure ? “ 2.

The nature of the claim and the facts, so far as material, are stated in the opinion. The conclusion of law by which the Board of Claims disallowed appellant’s claim for the value of his machinery is not in accord with or justified by the facts found. (Matter of Mayor, etc., 39 App. Div. 589; Matter of City of New York, 118 App. Div. 865; Phipps v. State of New York, 69 Misc.

<p>(1.) Pbactice—Motion fob copy of minutes of gband juey not be-VIEWABLE BY COUBT OF APPEALS.</p> <p>The decision of the court below, upon a motion by a defendant for a copy of the minutes of the grand jury upon which they have found an indictment against him, rests to such an extent in discretion that it cannot be reviewed by this court.</p> <p>(2.) Gband juby—Indictment—When can be set aside.</p> <p>The grand jury is an independent body and the indictment is a record of its conclusions. It can be set aside at any time when it appears that the evidence before the grand jury was insufficient on which to sustain it, but otherwise when presented in due form it imports absolute verity.</p> <p>(3.) Same—Refusal to dismiss indictment because based on TESTIMONY OF ACCOMPLICES.</p> <p>Where the only testimony before a grand jury is that of witnesses who were shown to be accomplices, it is not sufficient on which to base an indictment. But a motion to dismiss an indictment on that ground "will be denied where it does not appear that the witnesses before the grand jury which found the indictment were there shown to be accomplices of the defendant and no other evidence was .given in corroboration of such witnesses.</p> <p>(4.) Indictment fob conspibacy to obstbuct justice—Penal law Sec. 580.</p> <p>Defendants were indicted under section 580 of the Penal Law for a misdemeanor, in that they conspired to commit an act for the perversion or obstruction of justice or of the due administration of the laws. On examination of the evidence, held, that under the rule that to constitute an accomplice one must be so connected with a crime that at common law lie might himself have been convicted either as a principal or as an accessory before the fact, the question whether certain witnesses were accomplices was properly submitted to the jury.</p> <p>(5.) Confession by defendant.</p> <p>A confession by a defendant was properly received where it appeared that it was not made under the influene of fear, produced by threats, or upon a stipulation with the district attorney that he should not be prosecuted therefor.</p> <p>(6.) TEJA!—INSTBUCTION TO JUBY.</p> <p>It was not error to refuse a request to charge “that the testimony of a witness to a statement in the nature of an alleged confession made by a defendant, if considered by them, must be considered in the light of the rule that confessions are the weakest and most suspicious of all testimony.”</p> <p>(Argued June 17, 1914; decided November 10, 1914.)</p>

One John Franey was clerk of the county of Albany in the* year 1909, and on the 8th day of February of that year a corporate mortgage securing an issue of bonds was’ presented to him for record. The county clerk refused to receive the mortgage for record unless the full tax thereon was paid. The corporation conceded liability to pay a portion of the tax and finally paid the entire tax, protesting, however, that five hundred and forty dollars of the payment was exempt.

The nature of the action and the facts, so far as material, are stated in the opinion. In 1904 the legislature was prohibited by the State Constitution from empowering the forest, fish and game commissioner to alienate any part of the real property of the state in the forest preserve. (2 Black. Comm. 349; Christy v. Burch, 25 Fla. 942; First Nat.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered February 13, 1914, modifying and affirming as modified a determination of the Board of Claims.</p> <p>The nature of the claim and the facts, so far as material, are stated in the opinion.</p> <p>The claimants were entitled to recover damages resulting from leakage and overflows from the old Champlain canal. (Sipple v. State, 99 N. Y. 284; Reed v. State, 108 N. Y. 407; Mansfield v. N. Y. C. &H. R. R. R. Co., 102 N. Y. 205; Del Genovese v. Third Ave. R. R. Co., 13 App. Div. 412; 162 N. Y. 614; Weeks v. Rector, etc., of Trinity Church, 56 App. Div. 195; Horgan v. Mayor, etc., 160 N. Y. 516; Leahy v. City of New York, 192 N. Y. 42.) The claimants were entitled to recover damages for the delays to which they were subjected through the acts, faults and omissions of the state. (Mansfield v. N. Y. C. & H. R. R. R. Co., 102 N. Y. 205; Dannat v. Fuller, 120 N. Y. 554; Stewart v. Ketteltas, 36 N. Y. 388; Gallagher v. Nichols, 60 N. Y. 483; Weeks v. Little, 89 N. Y. 566; Mosler v. Maiden Lane Safe Deposit Co., 199 N. Y. 479.)</p> <p>The state is not liable for increased cost of excavation alleged to be due to the leakage from the Champlain canal. (Const. of N. Y. art. 7, § 9; Kinser Const. Co. v. State, 204 N. Y. 381.) The claimants are not entitled to recover damages for delays. (Crans v. Hunter, 28 N. Y. 389; Hoyt v. Hoyt, 73 N. Y. 505; Zoebisch v. Von Minden, 120 N. Y. 419; Nassoiy v. Tomlinson, 148 N. Y. 326; Sears v. Grand Lodge, 163 N. Y. 379; Greacen v. Poehlman, 191 N. Y. 498; McCarty v. N. C. Gas Co., 189 N. Y. 40; Keyes v. Smith, 183 N. Y. 376; Commercial Bank v. Sherwood, 162 N. Y. 310; People ex rel. M. R. R. Co. v. Barker, 152 N. Y. 417.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The findings of fact show that the said spur- or switch was devoted to a public use and is a part of the plaintiff’s railroad. (Matter of Stillwater v. Met. St. Ry. Co., 171 N. Y. 697; Degraw v. L. I. E. Ry. Co., 43 App. Div. 502; 163 N. Y. 507; Ingersoll v. Nassau E. R. R. Co., 157 N. Y. 453; Rodney v. B. C. & N. R. Co., 32 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The amendment to. sectioD 1317 of the Code of Civil Procedure (L. 1912, ch. 380), authorizing the Appellate Division to render final judgment upon reversal, did not go into effect until after the appeal was taken to the Appellate Division and, therefore, did not apply to this case nor authorize the final judgment appealed from.

The nature of the action and the facts, so far as material, are stated in the opinion. The assessments in question are presumed valid and correct in amount, and the plaintiff, not having reviewed them hy certiorari proceedings, cannot now contend that they are-excessive. (People ex rel. W. F. Ins. Co. v. Davenport, 91 N. Y. 574; People ex rel. Osgood v. Commissioners, 99 N. Y. 154; People ex rel. Burke v. Wells, 184 N. Y. 275; People ex rel.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 7, 1912, which affirmed a judgment of the Court of Special Sessions of the city of New York convicting the defendant of a violation of the Public Health Law in practicing dentistry without a license.</p> <p>The facts, so far as material, are stated in the opinion.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in charging the jury that the next of kin of the deceased adoptive mother are the next of kin of the plaintiff’s intestate and invested with rights of inheritance from him. (Dodin v. Dodin, 16 App. Div. 42; 162 N. Y. 635; Theobald v. Smith, 103 App. Div. 200; Gilliam v. Guaranty Trust Co., 186 N. Y. 121; U. S. Trust Co. v. Hoyt, 150 App. Div. 621; Carroll v. Collins, 6 App.

Zborowski, deceased. The facts, so far as material, are stated in the opinion. Section 230 is still operative and an ingredient part of the Transfer Tax Law. The legislature did not intend that the provisions providing for collection of a tax at the highest graded rate should be repealed or rendered inoperative by the amendment of 1910.

The nature of the action and the facts, so far as material, are stated in the opinion. The public service commission had no power to relieve the defendants from the obligation imposed upon them by the language of section 21 of the Railroad Law. (People ex rel. Bacon v. N. C. Ry. Co., 164 N. Y. 289; People ex rel.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff was not liable under the contract or bond for the costs and expenses of the appeal in the Crowther case. (Winters v. Judd, 59 Hun, 32; Mayor, etc., of New York v. Brady, 151 N. Y. 611; Village of Port Jervis v. First Nat. Bank, 96 N. Y. 559; Ottumwa v. Parks, 43 Iowa, 119; Cornell v. Travelers’ Ins.

The facts, so far as material, are stated in the opinion. Neither section 21 nor' section 22 of the Civil Service Law entitles a volunteer fireman to a preference in retention in the public service over those who are non-veterans. (Matter of Stutzbach v. Coler, 168 N. Y. 416; Reidy v. City of New York, 185 N. Y. 141; People ex rel. Chappel v. Lindenthal, 173 N. Y. 524; People ex rel. Ray v. McAneny, 153 App. Div. 884; 209 N. Y. 533; Matter of Pratt v. Phelan, 67 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The trial court erred in directing judgment for the amount of the larger verdict, to wit, $13,086. (Dwight v. E., C. & N. R. R. Co., 132 N. Y. 199; Masterton v. Mayor, etc., of Brooklyn, 7 Hill, 62; Rexter v. Starin, 73 N. Y. 601; Rose v. Butler, 69 Hun, 140; Milton v. H. R. Steamboat Co., 37 N. Y. 210; Mitchell v. Roch. Ry.

The nature of the action and the facts, so far as material, are stated in the opinion. The liability of the town for damages due to injuries received upon its highways is entirely statutory and it is only responsible for such damages in those cases where some duty is imposed upon the superintendent of highways in relation thereto which he has neglected to perform. (Lane v. Town of Hancock, 142 N. Y. 510; Scott v. Town of North Salem, 138 App.

The nature o'f the action and the facts, so far as material, are stated in the opinion. The Appellate Division of the Supreme Court was without power to reverse the judgment of the trial court. (Ross v. Caywood, 162 N. Y. 259.)

Motion by the district attorney of New York county for judgment of affirmance without argument. Motion by counsel for appellant for leave to withdraw appeal.

<p>Appeal from a judgment, entered December 6, 19.12, upon an order of the Appellate Division of the Supreme Court in the second judicial department, .which reversed an interlocutory judgment of Special Term in favor of defendant, appellant, and directed judgment of foreclosure and sale in an action to foreclose a purchase-money mortgage.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The trusts sought to be created by the trust deeds of September 28, 1869, are illegal and invalid under the laws of this state in so far as the real estate situated in the state of New York was sought to be affected, and by reason thereof no title vested in Kent under the trustees’ deed to him and the mortgage given by him as part of the purchase price, which is now sought to be foreclosed, was without consideration and is unenforceable in this action. (Hone v. Van Schaick, 7 Paige, 221; Boynton v. Hoyt, 1 Den. 53; Bean v. Bowen, 47 How. Pr. 306; Matter of Snyder, 21 N. Y. Supp. 430; Staples v. Hawes, 39 App. Div. 548; McGuire v. McGuire, 80 App. Div. 63; Stewart v. Woolley, 121 App. Div. 531; Tucker v. Tucker, 5 N. Y. 408; Garvey v. McDavitt, 72 N. Y. 556; Smith v. Edwards, 88 N. Y. 92; Underwood v. Curtis, 127 N. Y. 523.) The receiver is not estopped from denying the validity of the bond and mortgage, because still in possession of the premises and not evicted by a paramount title. (Loeb v. Willis, 100 N. Y. 231.) The total failure of title or consideration, coupled with the offer of the defendant, appellant, receiver to surrender and deliver up possession of the premises to the plaintiffs, takes this case out of the general rule that there must be an eviction before the foreclosure of a mortgage can be resisted successfully. (Gifford v. Matthew T. A. B. Society, 104 N. Y. 139.)</p> <p>The Peabody Clay Company and its predecessor, the Peabody Enamel Brick, Tile and Fireproofing Company, having assumed and agreed to pay the purchase-money mortgage foreclosed herein, the appellant John J. Sinnott, as receiver of the Peabody Clay Company, is estopped from contesting the validity of said mortgage. (Newton v. Evers, 143 App. Div. 673; Freeman v. Auld, 44 N. Y. 50; Parkinson v. Sherman, 74 N. Y. 88; Gifford v. Matthew T. A. B. Society, 104 N. Y. 139; Ritter v. Phillips, 53 N. Y. 586; Hartley v. Harrison, 24 N. Y. 170; Bostwick v. Young, 118 App. Div. 490, 496; 194 N. Y. 516; Gottlieb v. Miller, 154 Ill. 44; Great Western Tel. Co. v. Loewenthal, 154 Ill. 261; High on Receivers [4th ed.], 624, § 440; Nealis v. Insley, 33 Misc. Rep. 742.) The Peabody Clay Company and John J. Sinnott, as receiver, having since the 20th day of May, 1905, been in undisturbed possession and enjoyment of the real property affected by the mortgage in suit, may not continue to keep possession and resist the foreclosure of a mortgage which said company had assumed and agreed to pay. (Gifford v. Matthew T. A. B. Society, 104 N. Y. 139; Parkinson v. Sherman, 74 N. Y. 88; Kirtz v. Peck, 113 N. Y. 222.)</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered July 1, 1914, which modified and affirmed as modified an order of Special Term granting defendants leave to serve a supplemental answer on the condition, amongst others, that they pay to appellant the sum of $1,500 as an “ allowance ”in addition to taxable costs and expenses theretofore accrued in the action.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 10, 1914, reversing so much of a decree of the New York County Surrogate’s Court as construed the fifth clause of the will of Valentine Mott, deceased.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The primary legal significance of the word “issue” is descendants of whatever degree of descent. (Seitz v. Faversham, 205 N. Y. 197; Schmidt v. Jewett, 195 N. Y. 486; Matter of Bauerdorf, 77 Misc. Rep. 656; Drake v. Drake, 134 N. Y. 220; Soper v. Brown, 136 N. Y. 244; Ross v. Ross, 20 Beav. 645.) The context of this will and codicil clearly show the testator intended to use the word “ issue ” in question in its usual legal sense of “ descendants,” and there is nothing from which an intention can be found to limit its significance to “children.” (Drake v. Drake, 134 N. Y. 223.) An intention to limit the significance of the word “issue” to children, in the fifth paragraph of the will, cannot be found from the fourth paragraph of the will. (United States Trust Co. v. Tobias, 21 Abb. [N. C.] 392; Drake v. Drake, 134 N. Y. 225; Harrison v. McAdam, 38 Misc. Rep. 18; Jackson v. Jackson, 153 Mass. 374; Rasquin v. Hamersley, 152 App. Div. 522; Morron v. McMahon, 35 Misc. Rep. 348.)</p> <p>The testator used the word “issue” throughout his will in the sense of children. (Chwatal v. Schreiner, 148 N. Y. 683; Palmer v. Horn, 84 N. Y. 516; Palmer v. Dunham, 125 N. Y. 68; Soper v. Brown, 136 N. Y. 244; Murray v. Bronson, 1 Dem. 217; Daly v. Greenberg, 69 Hun, 228; Emmet v. Emmet, 67 App. Div. 183; Matter of Tenney, 104 App. Div. 290; Rasquin v. Hamersley, 152 App. Diy. 522; 208 N. Y. 630; Edwards v. Edwards, 12 Beav. 97.)</p>

0. Watson, as surviving executor and trustee under the will of William Watson, deceased.

Appeal in each of the above-entitled actions from a judgment, entered February 8, 1913, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term and directing judgment in favor of plaintiff. The nature of the action and the facts, so far as material, are stated in the opinion.

The nature of the action and the facts, so far as material, are stated in the opinion. The Supreme Court of this state has no authority to permit or authorize the erection of a bridge over a concededly navigable stream. (L. 1910, ch. 481, §§ 8, 21.) The judgment of the trial court directing that defendant remove at its own expense the filled-in portions of the creek was right and should be reinstated.

<p>(1.) Murder—Evidence—Party may not prove that a witness galled BY HIM MADE, ON OTHER OCCASIONS, EITHER CONTRADICTORY OR SIMILAR STATEMENTS.</p> <p>Two rules of evidence are clearly established: First, a party who calls a witness may not impeach him by calling another witness to prove that on a prior occasion the testifying witness has made contradictory statements or given testimony of a different character; second, subject to some exceptions, it is not permissible for the party calling a witness to fortify his testimony by showing that on other occasions he has made similar statements.</p> <p>(2.) Same.</p> <p>Immediately after the commission of the crime a witness identified defendant as the person who had shot a policeman. At the trial his testimony coincided with his prior statements until it came to the identification of the defendant. The witness then with much hesitation pointed out defendant as the man who had fired .the shot. On cross-examination he retracted his identification and admitted that he had sworn falsely in the Coroner’s Court. On the redirect examination the district attorney was properly given great latitude, but elicited nothing new except that the witness claimed to have been intimidated by various persons who were presumably friends of the defendant. The district attorney then called a witness who testified under objection, in substance, that he was present when the witness and others pointed out the defendant as having fired the shot. Held, incompetent, whether offered to support the testimony of the witness or to impeach him.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered May 29, 1914, which affirmed an order of Special Term amending nunc pro tunc a prior order thereof which appointed commissioners of appraisal in a proceeding instituted under the Rapid Transit Act (L. 1891, ch. 4, as amd.) to acquire property for the purposes of a subway rapid transit railroad.

Appeal in each of the above-entitled actions from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered January 23, 1914, 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. The Court of Appeals has jurisdiction to determine the issues herein upon the. merits.

The decision of the Appellate Division as to the liability of the telephone company was unanimous, but as to the liability of the railway company it was not. Permission to appeal to this court was granted to the former. The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff failed to prove negligence on the part of the said defendant. (Estabrook v. Newburgh L., H. & P. Co., 141 App. Div. 683; Geer v. N. Y. & P. Tel. & Tel.

The judgment must be reversed because it is not in conformity with the provisions of the Code of Civil Procedure. (Code Civ. Pro. § 1815.) The liability against the defendant, Florence E. Pelletreau, in her individual capacity was fully pleaded, properly proven and legally found.

<p>Appeal from a judgment of the Supreme Court rendered January 1914, at a Trial Term for the county of Rockland upon a verdict convicting the defendant of the crime of murder in the first degree.</p> <p>The facts, so far as material, are stated in the opinion.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff is not entitled to recover damages to the freehold or reversion, but only damages to the life estate, for it was shown that the remaindermen are in being, and were not made parties to the action. (Code. Civ. Pro. § 1665; Thompson v. M. R. R. Co., 130 N. Y. 360; Van Deusen v. Young, 29 N. Y. 9; Hoolihan v. Hoolihan, 119 App.

. Appeal from a judgment of the Supreme Court, rendered June 24, 1914, at a Trial Term for the county of Kings, upon a verdict convicting the defendant of the crime of murder in the first degree. The facts, so far as material, are stated in the opinion.

The nature of the controversy and the facts, so far as material, are stated in the opinion. The deed tendered will not convey a marketable title to the defendant free from the lien of judgments docketed after the superintendent took possession of the bank. (L. 1909, ch. 10, § 19; Lafayette Trust Co. v. Higginbotham, 136 App.

The nature of the action and the facts, so far as material, are stated in 'the opinion. The certification of the check by defendant constituted a new and valid contract between plaintiff and defendant by which the defendant became indebted to the plaintiff to the amount of the check, and the drawer of the check was discharged. (Meuer v. Phœnix National Bank, 94 App. Div. 331; 183 N. Y. 511; First Nat. Bank of Jersey City v. Leach, 52 N. Y. 350; Cooke v. State Nat.

The nature of the action and the facts, so far as material, are stated in the opinion. The receiver was duly appointed and he duly qualified. (Wright v. Nostrand, 94 N. Y. 33; Matter of Backus, 91 App. Div. 266; 179 N. Y. 571; Matter of Buchsbaum v. Lane, 63 Misc. Rep. 374.) The funds in the hands of the comptroller at the date of the service of the order in supplementary proceedings were property which became vested in the receiver. (Code Civ.

The nature of the action and the facts, so far as material, are stated in the opinion. Francis J. Palmer had an absolute right (independent of any exercise of discretion by the testamentary trustee) to the principal sum of $50,000 when he should become financially solvent and able to pay his just debts and liabilities from resources other than the principal of the trust fund.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered November 24, 1913, affirming a judgment in favor of defendants 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 burden of proof is upon the defendant to show that the transaction was a fair one. (Ten Eyck v. Whitbeck, 156 N. Y. 341; McClellan v. Grant, 83 App. Div. 599; Sheehan v. Erbe, 77 App. Div. 176; Barnard v. Gantz, 140 N. Y. 249; Matter of Budlong, 126 N. Y. 423; Allore v. Jewell, 94 U. S. 511; Tyler v. Gardiner, 35 N. Y. 559; Boyd v. De la Montagnie, 73 N. Y. 498; Sears v. Shafer, 6 N. Y. 268; Slack v. Rees, 66 N. J. Eq. 447.)</p> <p>The burden of proof was not upon the defendant La Vaud to show the transaction was a fair one. (Jones v. Jones, 137 N. Y. 610; Donlon v. Donlon, 154 App. Div. 212.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The evidence having presented a case of latent ambiguity, parol evidence was admissible to identify the legatee intended by the testatrix.

<p>Practice—erroneous designation of judicial mandate as an order, when it is in effect a final judgment—when it will be reversed.</p> <p>The fact .that a paper is labeled an order does not determine its character, if in fact it has all the attributes of a final judgment. Where it is a document amending the final judgment, in effect reversing one of its adjudications, and substituting a different one, it, in that sense, is, itself, a final judgment and as such appealable to this court, and will be reversed.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. It was no part of the duties of the deceased to repair this elevator, and having volunteered to assist his brother Michael and to perform work involving unusual risks and dangers, of which he was or should have been aware, but of which his employer had no notice, his representatives may not now be heard to complain if injury resulted therefrom. (McCue v. Nat. Starch Mfg.

The nature of the action and the facts, so far as material, are stated in the opinion. The deceased undertook to repair a defective condition of this elevator, which was wholly outside the scope of his employment and contrary to the orders of his superior. This undertaking involved unusual risks and dangers, of which he was or should have been aware, but of which his employer had no notice.

The nature of the action- and the facts, so far as material, are stated in the opinion. The court erred in submitting the case to the jury, as the plaintiff’s intestate was guilty of contributory negligence as a matter of law. (Hogan v. N. Y. C. & H. R. R. R. Co., 208 N. Y. 445; Van Schaick v. H. R. R. R. Co., 43 N. Y. 527; Hennessey v. F. S. St. R. R. Co., 103 App. Div. 384; O'Hara v. O'Rourke E. C. Co., 135 App. Div. 348; Schmnoske v. Asphalt Ready R. Co., 129 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The Pennsylvania judgment in favor of plaintiff herein and against the surety company is binding upon the estate of Mrs. Crage, defendant, due notices of all proceedings having been served upon her as indemnitor. (Mayor v. Brady, 151 N. Y. 611; Carleton v. Lombard, Ayres & Co., 149 N. Y. 137; Vil. of Port Jervis v. First Nat. Bank, 96 N. Y. 550; Cornell v. Travelers’ Ins.

<p>(1.) Indictment—Motion to dismiss fob insufficiency when waived!</p> <p>* Unless a motion founded upon the indictment and the insufficiency thereof is made before or at the time when the defendant is called for judgment, the objections thereto are waived. (Code Crim. Pro. §§ 323, 331, 467, 469.) Motions to set aside the verdict and for a new trial upon the ground that it is against the law, or for an arrest of judgment upon the ground that the grand jury and the court had no jurisdiction of the offense, for the reason that the acts did not take place in the county of Kings, do not raise that question. Such a ground of objection should be specifically called to the attention of the court.</p> <p>(2.) Same—Penal Law, sec 751—Pubchase of nomination fob public OFFICE.</p> <p>Section 751 of the Penal Law seeks to prevent corrupt bargaining to induce a particular voter or number of voters to vote in a particular manner and has reference wholly to individual action. Section 775 includes and seeks to prevent corrupt bargaining by a person in a position or exercising authority which can be used to influence a party convention as a body and thus bring about a nomination.</p> <p>(3.) Same—Penal Law, sec. 775.</p> <p>A person in a position or having authority, oflaeial or otherwise, by influence or otherwise, to procure or cause a nomination to public office, who, for a price, offers to procure or cause such nomination to office by a public officer or through a nomination by a political convention, and the person who requests such nomination and offers to pay the price “ is any person ” within the meaning of section 775 of the Penal Law.</p> <p>(4.) Same—Guilty consciousness may be inferred.</p> <p>When a person is publicly accused of crime, or is accused by formal criminal proceedings, a guilty consciousness may always be inferred from falsehood, misrepresentation, evasion, equivocation or by suppression of the facts in regard to the same.</p> <p>(5.) Same—Where evidence to prove commission of such crime PROPERLY RECEIVED, AND SUFFICIENT TO SUSTAIN VERDICT CONVICTING DEFENDANT OF CRIME CHARGED.</p> <p>Defendant was on trial for “ the crime of requesting and accepting a nomination for a public office, upon the understanding and promise of a valuable consideration, and upon the payment of a valuable consideration.” While defendant and two others were candidates for justice of the Supreme Court an editorial was published in a newspaper referring, among other things, to one of the nominations as a “ shocking scandal.” The three candidates met and discussed the editorial, and statements were made by each of them as to what could be said as to his connection with the nomination. Thereupon a criminal proceeding was commenced against the newspaper which published the editorial, for which purpose defendant and the other nominees made affidavits. Defendant’s affidavit contained extracts from the editorial, a copy of which was attached to the affidavit. Following an admission by the.'defendant that he had borrowed money before his nomination and of some facts connected therewith, the proceeding for criminal libel was withdrawn. The two candidates other than defendant then each published a personal statement, and following such personal statements the defendant published a statement in which he referred to the statements of the two other candidates. The editorial, the affidavits and the statements to the press by the defendant’s associates were objected to. Held, that the papers and statements were properly received, not as evidence of the facts contained therein, but from which to determine in connection with other evidence whether the defendant by concealing information, and by partial statements, equivocation, and by untruthfulness, evidenced consciousness of guilt, the court having so limited their effect in the charge to the jury.</p> <p>(6.) Same.</p> <p>The defendant, in his published statement, stated that he had used some of the money he had recently borrowed to take up a note. Testimony was given by the People to show that the defendant’s brother took up this note with his own money. Held, that the evidence so given was proper, as tending to disprove the defendant’s statement that he took up such note with a part of the ' money so borrowed by him.</p>

<p>Appeal by each of the above-named defendants from an order of the Appellate Division of the Supreme Court in the second judicial department, entered October 2, 1914, which affirmed a judgment rendered at a Trial Term for the county of Kings upon a verdict convicting him of the crime of making, tendering and offering to procure and to cause a nomination to a public office upon the payment and contribution of a valuable consideration and upon the understanding and promise thereof.</p> <p>The facts, so far as material, are stated in the opinion.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The failure to file a written verified statement of the nature of the plaintiff’s claim and of the time and place at which the injury is alleged to have been received within sixty days after the cause of action herein occurred is a bar to the maintenance of this action.

The nature of the action and the facts, so far as material, are stated in the opinion. Held: unless it is shown that when he executed the lease the premises were in a state of disrepair, that he had actual knowledge of such condition when he leased them or that the premises at the time he leased them were in such a state of disrepair as to amount to a nuisance and that he was asked to abate it.

The nature of the action and the facts, so far as material, are stated in the opinion. It was error for the Appellate Division to grant judgment absolute dismissing the plaintiff’s complaint. (Cronin v. Lord, 161 N. Y. 90; Marden v. Dorthy, 160 N. Y. 39; Clemence v. City of Auburn, 66 N. Y. 334; Sundheimer v. City of New York, 176 N. Y. 495; Silverman v. Foreman, 3 E. D. Smith, 322; Marshall v. Davies, 78 N. Y. 414; Howard v. Bank of the Metropolis, 104 App.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 29, 1914, which reversed an interlocutory judgment of Special Term overruling a demurrer to the amended complaint and sustained such demurrer.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 29, 1914, which reversed an interlocutory judgment of Special Term sustaining a demurrer to the complaint and overruled said demurrer.

The facts, so far as material, are stated in the opinion. It was the right of the Kings-bridge Company and its vendees at the sale to so contract that the joint resultant of the sale and the then pending condemnation proceedings would be the same to all parties concerned, including the city, as if title had vested at the initiation of the proceedings.

This action was brought to recover the amount of certain assessments, and penalties incurred for failure to pay assessments, upon a policy of insurance issued to defendant by the American Underwriters’ Fire Insurance Company of Monroe county, a mutual company, of which the plaintiff is permanent receiver.

The nature of the action and the facts, so far as material, are stated in the opinion. The appellant can maintain this action. (Matter of First Nat. Bank, 182 N. Y. 460; People ex rel. A. E. Nat. Bank v. Purdy, 196 N. Y. 270.) Payment of the tax was not voluntary. (People ex rel. A. E. Nat. Bank v. Purdy, 196 N. Y. 270; 199 N. Y. 51.) Plaintiff is entitled to recover if the assessments were void on account of a jurisdictional defect.

May 20th, 1907, Hannah A. McCabe became the owner of a certain piece of land in Long Island City, borough of Queens, city of New York, situate on the northerly side of Thomson avenue,, having a frontage thereon of seventy-five feet, and a frontage on- Purvis avenue of one hundred feet. The property in question was and is vacant and unimproved. Hannah McCabe died seized of said premises September 26th, 1910, and the plaintiffs herein succeeded to her ownership of the same.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 21, 1913, upon an order reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint in an action to recover for the death of plaintiff’s intestate, alleged to have' been occasioned through the negligence of the defendant.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The defendant was negligent. (Regner v. G. F. & S. F. S. R. Co., 74 Hun, 202; 6 Thompson on Neg. 452, § 7408; Hutchison on Carriers [3d ed.], § 992; 1 Nellis on St. Rys. 549, § 277; Sheridan v. B. & N. R. R. Co., 36 N. Y. 39; Wells v. N. Y. C. & H. R. R. R. Co., 25 App. Div. 366; Dwindle v. N. Y. C. & H. R. R. R. Co., 120 N. Y. 117; Smith v. B. & N. A. R. S. S. P. Co., 86 N. Y. 408; Connoly v. C. C. R. R. Co., 41 La. Ann. 57; Nelson v. C. & N. W. Ry. Co., 130 Wis. 214; A., T. & S. F. R. Co. v. Weber, 33 Kan. 543; L. S. & M. S. R. R. Co. v. Salzman, 31 L. R. A. 261; Paddock v. A., T. & S. F. R. Co., 37 Fed. Rep. 841.) The proximate cause of the death of deceased was the defendant’s negligence. (Turner v. Nassau El. R. R. Co., 41 App. Div. 215; McCahill v. N. Y. Transp. Co., 201 N. Y. 221.) This court has jurisdiction to review the judgment appealed from and reinstate the judgment entered on the verdict because: (1) The appeal is taken from a final judgment and not from an order1 granting a new trial; and (2) the dismissal by the Appellate Division was equivalent to a certificate that the reversal was on the law and not on the facts. (Const. of N. Y. art. 6, § 9; Code Civ. Pro. §§ 190, 1318; Allen v. Corn Ex. Bank, 181 N. Y. 278; Wright v. Smith, 209 N. Y. 249; Caldwell v. City of New York, 210 N. Y. 576; Canavan v. Stuyvesant, 154 N. Y. 84; Goodwin v. Conklin, 85 N. Y. 219; Gawthrop v. Leary, 89 N. Y. 622; I. & G. Trust Co. v. Tod, 180 N. Y. 215; Volosko v. I. S. Ry. Co., 190 N. Y. 206; Jacobson v. Brooklyn Lumber Co., 184 N. Y. 152; Kraus v. Birnbaum, 200 N. Y. 130.)</p> <p>The appeal from, the judgment and order of the Appellate Division should he dismissed. (Sciolina v. Erie Preserving Co., 151 N. Y. 50; Wright v. Hunter, 46 N. Y. 409; Harris v. Burdett, 73 N. Y. 136; Williams v. D., L. & W. R. R. Co., 127 N. Y. 643; Chapman v. Comstock, 134 N. Y. 509; Mickie v. W. M. & R. M. Co., 144 N. Y. 613; Albring v. N. Y. C. & H. R. R. R. Co., 166 N. Y. 287; Bank of China v. Morse, 168 N. Y. 458; Allen v. Corn Exchange Bank, 181 N. Y. 278; Peterson v. O. E. Ry. Co., 161 App. Div. 720. The complaint should have been dismissed because the defendant’s employees were not negligent in failing to remove the passenger from the car when he manifested symptoms resembling intoxication. (Le Mont v. W. & G. R. R. Co., 1 Mackey [D. C.], 180; Murphy v. U. P. R. R. Co., 118 Mass. 228; Black v. N. Y., N. H. & H. R. R. Co., 79 N. E. Rep. 797; Adams v. St. L., etc., R. R. Co., 137 S. W. Rep. 437; Bageard v. Cons. Traction Co., 64 N. J. L. 316; Regner v. Glens Falls, etc., R. R. Co., 74 Hun, 202; Connolly v. Crescent City R. R. Co., 41 La. 57; Nelson v. C. N. Ry. Co., 130 Wis. 214; Atchison, T. & S. F. R. Co. v. Weber, 33 Kan. 543; Paddock v. Atch., T. & S. F. R. Co., 37 Fed. Rep. 841; Railway Co. v. Parry, 67 Kan. 516; St. L., I. M. & S. R. Co. v. Woodruff, 115 S. W. Rep. 953; Eidson v. South. R. R. Co., 23 So. Rep. 369; Gill v. Rochester R. R. Co., 37 Hun, 107.) There was no evidence from which the jury could properly have found that the ride on the car was the proximate cause of death. (Laidlaw v. Sage, 158 N. Y. 73; Jewell v. Parr, 13 C. B. 916; Imp. Co. v. Munson, 14 Wall. 442; Pollock v. Black, 71 N. Y. 137; Bond v. Smith, 113 N. Y. 378; Grotsch v. Steinway R. R. Co., 19 App. Div. 131; Koehler v. N. Y, Steam Co., 71 App. Div. 226; Sullivan v. Metropolitan Co., 63 App. Div. 48; McGinness v. Third Avenue R. R. Co., 104 App. Div. 345; Dougherty v. Milliken, 163 N. Y. 527.) The court erred in permitting the jury to consider as a basis for a finding of defendant’s negligence the conduct of the employees in control of the car after the termination of the first south-bound trip. (Schoen v. Dry Dock, etc., R. R. Co., 26 J. & S. 149; Seifter v. B. H. R. R. Co., 169 N. Y. 254; Maimone v. Dry Dock, etc., R. R. Co., 58 App. Div. 383; Laidlaw v. Sage, 158 N. Y. 73.)</p>

The nature of the controversy and the facts, as far as material, are stated in the opinion. The power and authority to make the lease of 1811 was vested in the mayor, aldermen and commonalty of the city of New York by charter. (Dongan Charter, § 12; Montgomerie Charter, § 36.) The covenant for renewal contained in, the original lease, and in each renewal lease, provides clearly and unequivocally for the continual lease of the premises, and was so construed by the parties.

• Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 17, 1913,… Held: in trust by the said Buffalo Loan, Trust and Safe Deposit Company for the children of my said son, Harlow W. Bailey, and I direct that each child of my said son, Harlow W. Bailey, shall have and receive his or her proportion of said trust fund upon his or her arriving at the age of twenty-one years, and then to take such proportion…

On the 1st day of June, 1887, the plaintiff’s testator, the then owner, conveyed certain premises in the city of New York abutting on Division street to Justus H. Zimmerman by a deed containing the following clause: “The said Ephraim Drucker reserves for himself any and all claim and causes of action against all the world for any and all losses and damages to himself and to the premises above described on account ■ of the construction and the present and future continuance…

<p>Motion for re-argument. (See 212 N. Y. 36.)</p>

This action was brought on a written contract to recover the stipulated annual payments to be made by the defendants for the privilege of constructing and maintaining a tunnel beneath Livingston street in the borough of Brooklyn to connect two buildings owned by the defendants on opposite sides of the street.

<p>Will — construction of provision creating trust of testator’s residuary estate for benefit of his daughters for life — disposition of fund upon death of survivor of daughters.</p> <p>Testator’s will provided: “ After all my lawful debts and funeral expenses are paid I give and bequeath unto my daughter Susan Emeline the use of Two Thousand Dollars during her natural life, the balance of my property to be divided equally betwixt my two daughters (Susan Emeline and Mary Rosetta) during their natural lives and then to my legal descendants,- if- any there shall be, but if there should be none then to Theodore De Land or his children.” Testator left two daughters, named in the will, his only hens, and next of kin, one of whom is plaintiff, the other defendant in this action for its construction. The plaintiff has never had a child. The defendant Mary R. Cody at the time of the death of her father had two children, her only living descendants, one of whom is dead, and the other of whom is defendant James Carey Cody, who is the only descendant now living of the testator other than the two daughters. Theodore De Land, named in the will, is living, and he has three children who are defendants herein. Held, that testator intended to dispose of all of his property by his will; that all of his property should be held until the death of his daughters and the survivor of them, and that at such time it shall become the absolute property of the legal descendants of the testator, if any there shall be, but if there should be none then to Theodore De Land or his children.</p>

<p>Appeal from a judgment of the Court of General Sessions for the county of New York, rendered October 83, 1913, upon a verdict convicting the defendant of the crime of murder in the first degree.</p> <p>The facts, so far as material, are stated in the opinion.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The complaint fails to state facts from which fraud can he found or inferred, and the mere general allegations of fraud are of no value as stating a cause of action. (Van Weel v. Winston, 115 U. S. 228; Cohn v. Goldman, 76 N. Y. 284; Knapp v. City of Brooklyn, 97 N. Y. 520; Wood v. Armory, 105 N. Y. 278; Knowles v. City of New York, 176 N. Y. 437.)

The nature of the action and the facts, so far as material, are stated in the opinion. The affirmance by the Appellate Division was not unanimous and this court has power to review the question whether the verdict is supported by the evidence. (Taylor v. Higgs, 202 N. Y. 65; Clark v. Brooklyn Heights R. R. Co., 174 N. Y. 523.) The construction of the contract by the trial court was erroneous, and defendants’ motions to dismiss should have been granted.

<p>Appeal from a judgment of the County Court of Kings county rendered June 1,1914, upon a verdict convicting the defendant of the crime of murder in the first degree.</p> <p>The facts, so far as material, are stated in the opinion.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 20,1913, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover damages to the forest preserve from fire alleged to have been, negligently set by defendant.</p>

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered June 24,1913, affirming a judgment in favor of defendant entered upon a. verdict. Also motion to dismiss said appeal.

ment, entered May 9, 1913, as affirmed a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term in an action to foreclose a mechanic’s lien.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered May 23, 1913, 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 an alleged breach of covenants contained in a deed of real property.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered September 16,1913, affirming a judgment in favor of plaintiff entered upon verdict in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of defendant.</p>

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered March 3,1914, affirming a judgment in favor of plaintiff entered upon a verdict.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 23,1913, upon an order reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered April 10, 1914, which affirmed an interlocutory judgment of Special Term overruling a demurrer to an affirmative defense contained in the answer in an action for annulment of marriage.