Volume 214 — New York Reports

<p>Tax — assessment and levy of taxes — statutory provisions must be complied with if mandatory and designed for the protection of the taxpayer — when directory provisions relating to procedure, only, may be omitted without invalidating tax.</p> <p>' 1. The power to assess property for the purpose of taxation and to levy taxes is strictly statutory. A substantial compliance with those statutory provisions, defining and regulating the exercise of it, which are of the substance of the procedure and are designed for the protection of the taxpayer and the preservation of his rights, is a condition precedent to the validity of the tax. Those provisions are mandatory. Other provisions, however, are intended to instruct and guide the assessing officers and secure regularity and uniformity of procedure, and are directory and not mandatory unless accompanied by negative or restrictive words importing that the acts prescribed shall not be done in any other manner or time than that designated. The failure to comply strictly with a directory provision does not render the assessment or tax invalid.</p> <p>2. Alleged errors and omissions in the assessment of certain real estate in the city of New York examined, and held, that the statutory requirements with reference thereto (L. 1892, ch. 542; L. 1897, ch, 378; L. 1909, ch. 62; Cons. Laws, ch. 60) were substantially complied, with.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. Defendant made no material false representations inducing the making of the contract. (Wheadon v. Huntington, 83 Hun, 371.) This is an action upon an express contract, in which the defendant was guilty of a fraud in contracting the liability. (Hoboken Beef Co. v. Loeffel, 22 N. Y. S. R. 466; 62 Hun; 611; Wallace v. Murphy, 22 How. Pr. 414; Freeman v. Leland, 2 Abb.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered November 13, 1914, which reversed an order of Special Term denying a motion for a peremptory writ of mandamus to compel the defendant to pay to the relators the sum of five hundred dollars as compensation for services in defending a person indicted for murder as ordered by the Kings County Court and granted said motion.</p> <p>The facts, as far as material, are stated in the opinion.</p> <p>Unless the statute can be construed to empower the court to engage counsel at the public expense for a prisoner who has already retained counsel and filed a written notice of that fact, the order appealed from must be reversed. (People v. Fuller, 35 Misc. Rep. 189.)</p> <p>The County Court properly exercised its discretion in granting compensation to counsel. (People ex rel. Acritelli v. Grout, 87 App. Div. 193; People ex rel. McAvoy v. Prendergast, 57 Misc. Rep. 541.)</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 8, 1914, which affirmed an order of Special Term denying a motion to vacate and set aside the service of a summons. . .

<p>Mortgage — extension of time of payment of bond and mortgage by agreement between assignee thereof and the grantee of the mortgaged premises — when such agreement relieves mortgagor from liability on the bond.</p> <p>1. Where the holder of a bond and mortgage entered into an agreement with the grantee and then owner of mortgaged premises by which the time of payment was extended for several years without the knowledge of the obligor on the bond, the land having become the primary fund for the payment of the mortgage debt, the obligor is relieved from liability upon the bond and the mortgagee cannot recover thereon.</p> <p>3. The liability of the obligor is not reserved by a clause in such agreement between the mortgagee and the owner of the equity which provides that “Nothing herein contained shall impair the security now held for said debt, or any condition or agreement contained in said bond and mortgage, which bond and mortgage the party of the second part hereby ratifies and confirms as modified by this agreement.”</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The theory of law under which the trial court submitted to the jury the question of damages was an erroneous one, in that it laid down an incorrect rule for the measurement of such damages which was highly prejudicial to the defendant, appellant. (Code Civ.

<p>Application for compensation of counsel.</p>

<p>Motion for an order directing the clerk of the Court of Appeals to file a certificate of the commissioner of education and to issue a certified copy of the same.</p>

The nature of the action is stated in the opinion. The Appellate Division exceeded its jurisdiction in dismissing the plaintiff’s complaint in each action and ordering final judgment with costs against them.

The public service commission on September 9, 1913, on its own motion adopted a resolution for a hearing to be held for the purpose of determining whether the New York Central and Hudson River Railroad Company should be ordered to maintain in its Grand Central Station a suitable room where parcels might be checked by those using the trains of the New York Central and Hudson River Railroad Company or the trains of the New York, New Haven and Hartford Railroad Company, for a…

The nature of the action and the facts, so far as material, are stated in the opinion. The defendant was not negligent. (Beetz v. City of Brooklyn, 10 App. Div. 382; Walsh v. Fitchburg R. R. Co., 145 N. Y. 301; Fitzgerald v. Rodgers, 58 App. Div. 298; Berman v. Schultz, 40 Misc. Rep. 212; Vincent v. Crandall & Godley Co., 131 App. Div. 200.) Leaving the bottle of alcohol on the culvert was not the proximate cause of the accident. (Herr v. City of Lebanon, 149 Penn.

The facts, so far as material, are stated in the opinion. The statements of a person charged with crime are by no means conclusive, and undue weight should not be given them, for innocent men sometimes lie in order to divert suspicion from themselves.

On September 4th, 1902, Franz and Elizabetha Rastetter, being then husband and wife, jointly executed the following instrument: 11 In the name of God, Amen: We, Franz Rastetter and Elizabetha Rastetter, his wife, of the Borough of Manhattan, City of New York, being of sound mind and memory and mindful of the uncertainty of human life, do now make, publish and declare this and this only to be our last mutual and joint Will and Testament in manner following, viz.: “ First.

The facts, so far as material, are stated in the opinion. ■ The People’s ex parte manufactured samples, concocted two days after the crime charged in the indictment is alleged to have been committed, pending criminal and legal proceedings, were not such standards as the law recognizes in cases of disputed writings. The law does not recognize such samples as free from bias. The exceptions to this class of evidence constitute reversible error.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered April 3, 1914, affirming a judgment in favor of defendant entered upon an interlocutory judgment of Special Term sustaining a demurrer to the complaint upon the ground that it does not 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.

The nature of the action and the facts, so far as material, are stated in the opinion. The trial court' erred in submitting this case to the jury under the Federal Employers’ Liability Act. (Pearson v. N. Y. S. & C. Ry. Co., 83 N. J. L. 661; Nordgard v. M. & N. Ry. Co., 211 Fed.

Appeal, by permission, from ari order of the Appellate Division of the Supreme Court in the fourth judicial department, entered October 22, 1914, affirming a judgment of the Erie* County Court which affirmed three judgments of the City Court of Buffalo convicting the defendant of violating section 8a of the Labor Law.

The nature of. the claim and the facts, so far as material, are stated in the opinion. The decision was made by a commissioner who took no part in the trial and was not a member of the Board of Claims at the time of the trial. It is well settled that a case cannot he tried by one judge and decided by another.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered December 6, 1913, 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 proof was sufficient to require submission to the jury of the question of defendant’s negligence. (McGlynn v. Penn.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 3l, 1914, reversing a judgment of the Court of Special Sessions of the city of New York convicting the defendant of a violation of section 14 of the Labor Law. The facts, so far as material, are stated in the opinion. The individual as an employer of labor and the state as an employer of labor stand on the same footing.

App.e al from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered April 6, 1914, which affirmed an order of Special Term appointing a committee of the property of an alleged incompetent. The facts, so far as material, are stated in the opinion. There is no proof to be found in the record of- the incompetency of John H. Case.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 19, 1914, which affirmed an order of Special Term settling the issues in an action for divorce for trial before a jury. The Appellate Division certified the following questions: “1.

The facts, so far as material, are stated in the opinion. A liquor tax certificate may be revoked after the term for which it was issued has expired. (Van Vleck v. Coonan, 2 L. T. L. Rep. 330; Matter of Lyman, 48 App. Div. 275; Matter of Goodman, 146 N. Y. 286; Matter of Schuyler, 32 Misc. Rep. 222; Matter of Hanson v. Howard, 66 N. Y. Supp. 1133; Matter of Farley v. Mehlsack, 85 Misc. Rep. 579; Clement v. Moore, 135 App.

Appeal by the relator, Karl S. Deitz, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered on the 17th day of December, 1914, reversing an order of the Supreme Court in Kings county which directed the issuance of a peremptory writ of mandamus requiring the board of county canvassers to open the envelopes containing void and protested ballots cast at the general election held in November, 1914, in the fifty-second aldermanic…

Appeal, by permission, from so much of an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 16, 1911, as affirmed a judgment of condemnation rendered by the Erie Special Term, and from so much of said judgment as awards costs to the plaintiff against the defendants other than the First Methodist Episcopal Church Society of Middleport, N. Y. This is a proceeding brought for the condemnation of certain rights of way in the…

The nature of the action and the facts, so far as material, are stated in the opinion. Even though the jury found, upon incompetent evidence, and by reason of the improper exclusion of rebuttal evidence, that Frederick O. Sterling was the owner of the automobile which caused the accident, nevertheless, defendant cannot he held on the evidence in the record.

, entered January 18, 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 complaint is on contract and its sufficiency should be tested as such. (Jacquelin v. M. J. Assn., 39 App. Div. 515; Barney v. Fuller, 133 N. Y. 605; Boyd v. Dailey, 85 App.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 17, 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 evidence presents a question for the jury, as to the neglect of the defendant. (Erb v. City of New York, 123 App.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered August 27, 1914, in favor of plaintiff upon the submission of a controversy under section 1279 of the Code of Civil Procedure.</p> <p>The nature of the controversy and the facts, so far as material, are stated in the opinion.</p> <p>The words “ dwelling houses ” as used in the restriction agreement must be given that interpretation intended by the parties using them at that time, rather than the broad definition to be found in dictionaries and accepted by courts in defining the same words when used in other days and generations. (Clark v. Devoe, 124 N. Y. 120; Maloney v. I. B. Co., 173 N. Y. 303; Page on Cont. § 1123; Hoffman v. Æ. F. Ins. Co., 32 N. Y. 405; White v. Collins B. & C. Co., 82 App. Div. 1; Sanders v. Dixon, 89 S. W. Rep. 577; Schenck v. Campbell, 11 Abb. Pr. 292; Batchelor v. Hinkle, 210 N. Y. 243; Decker v. Furniss, 14 N. Y. 611.) The practical construction given to the contract by the parties and by their successors in interest should be controlling upon its present interpretation. (Carthage T. P. Mills v. Vil. of Carthage, 200 N. Y. 1; City of New York v. New York City Ry. Co., 193 N. Y. 543; Meyer v. Levy, 156 App. Div. 745; Woolsey v. Funke, 121 N. Y. 87; Ins. Co. v. Dutcher, 95 U. S. 269.) As between a vendor and vendee the court will not resolve a doubtful question of title in the absence of all of the parties directly interested in the determination of that question. (Fleming v. Burnham, 100 N. Y. 1; N. Y. S. & T. Co. v. Schoenberg, 87 App. Div. 262; Heller v. Cohen, 154 N. Y. 300; Wanser v. De Nyse, 188 N. Y. 378; Brokaw v. Duffy, 165 N. Y. 391; Holley v. Hirsch, 135 N. Y. 590; Irving v. Campbell, 121 N. Y. 353.)</p> <p>Private dwelling houses are the only permissible dwelling houses within the meaning of the Murray Hill restrictive agreement. (Sonn v. Heilberg, 38 App. Div. 515; Hurley v. Brown, 44 App. Div. 480; Holt v. Fleischman, 75 App. Div. 593; Bates v. Logeling, 137 App. Div. 578; Roth v. Jung, 79 App. Div. 1; Hodge v. Sloan, 107 N. Y. 244; Korn v. Campbell, 192 N. Y. 490.) As an apartment house is not a private dwelling, the erection of an apartment house within the Murray Hill neighborhood would be an infringement of the Murray Hill restrictive agreement. (Levy y. Schreyer, 27 App. Div. 282; Kitching v. Brown, 180 N. Y. 414; Skillman v. Sneathcurst, 57 N. J. Eq. 1.)</p> <p>Restrictive covenants, being in derogation of the right to the unrestricted use of property, are to be construed strictly against the party seeking to enforce them, and will not be extended by implication to cover anything not plainly prohibited. (Duryea v. Mayor, etc., 62 N. Y. 592; Blackman v. Striker, 142 N. Y. 555; Kitching v. Brown, 180 N. Y. 427; C., etc., Ry. Co. v. T. S. S. Ry. Co., 149 N. Y. 56; Schoonmaker v. Hoyt, 148 N. Y. 431; Lese v. Lamprecht, 196 N. Y. 37; Dady v. O’Rourke, 172 N. Y. 453; Uihlein v. Matthews, 172 N. Y. 159; Hill v. Priestly, 52 N. Y. 635; Giles v. Comstock, 4 N. Y. 272; McKinney v. McBride, 88 App. Div. 100; 9 Cyc. 490.) The object and intent of the Murray Hill restriction was to restrict the property affected to a residential district and thus to prohibit business, and the restriction simply prohibits the construction of anything but “ dwelling houses ” and does not prohibit the construction of anything but “ private dwelling houses ” or “ dwelling houses for a single family only,” as the appellant contends. (Whitby v. Matthews, 52 N. Y. 515; Goodhue v. Cameron, 142 App. Div. 486; Uihlein v. Matthews, 172 N. Y. 159; Richardson v. H. F. Ins. Co., 149 N. Y. 315.) An apartment house, such as the one described in the submission, where every apartment is a complete dwelling house apartment, does not violate the restriction that the property shall only be used for dwelling houses. (Sonn v. Heilberg, 38 App. Div. 515; Hurley v. Brown, 44 App. Div. 480; Holt v. Fleischman, 75 App. Div. 593; Bates v. Logeling, 137 App. Div. 578; Roth v. Jung, 79 App. Div. 1; Johnson v. Jones, 244 Penn. St. 386; McMurtry v. Phillips Investment Co., 103 Ky. 308; Hutchinson v. Ulrich, 145 Ill. 336; Kimber v. Adams, 69 L. J. Rep. [N. S.] Ch. 291; Taylor v. Goodwin, L. R. [4 Q. B. Div.] 248.)</p>

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 24, 1913, upon an order which modified an order of the court at a Trial Term setting aside a verdict in favor of plaintiff and granting a new trial by directing a dismissal of the complaint. 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 defendant having acquired the custody and possession of the cars as sheriff in a valid replevin proceeding, and, so far as the record shows, having retained possession thereof at the time of the commencement of this action, it is not maintainable against him. (Code Civ.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered February 3, 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 nature of the action and the facts, so far as material, are stated in the opinion. The appellants were not trespassers during the period from September ninth to September thirtieth, (Luger v. Goerke, 18 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The building was not a nuisance on the 30th day of June, 1911, or at any time prior thereto, and the court erred in refusing to grant a nonsuit and to dismiss the plaintiff’s complaint. (Kleinberg v. Schwan, 134 App. Div. 493; 198 N. Y. 619; Murphy v. City of Brooklyn, 98 N. Y. 642; Sterger v. Van Sicklen, 132 N. Y. 499; Vil. of Haverstraw v. Eckerson, 124 App.

<p>Insurance (life) — construction of policies — suicide clause in term policy and policy thereafter issued in place thereof—when such clause binding upon the insured.</p> <p>1. Where a policy on the life of a person, issued by a life insurance company, upon an application signed by the insured, is delivered to and accepted by him, the intent of the insured and the company existing at that time, as expressed in the policy, binds and obligates both of the parties. Presumptively, them intent is expressed by the natural and ordinary meaning of them language referable to it and such meaning cannot be perverted or destroyed by the courts through construction. Where the parties by their words have left no reasonable and fair reason for doubt, there is no just or defensible excuse for construction.</p> <p>2. The defendant life insurance company issued to plaintiff’s testator a so-called “ term policy,” insuring his life for the term of five years, containing a clause to the effect that if the insured should commit suicide within one year from the date thereof, the policy should be void, with the privilege, among other options, that said policy might “ be exchanged without medical re-examination for a new policy upon any plan then in use by said company on payment of the premium required for such new policy for the insuring age then attained by the insured.” The insured under such option made a written application for a new policy and therein agreed that the statements and answers in the application for the term policy “ shall be the basis of the new contract or policy herein applied for and form a part of the same, except that the kind of policy, amount of the same and the premium thereon shall be specified as stated below." In accord with such application, which was made a part of it, the policy sued upon was issued. In it the insured and the defendant agreed: “ If the insured shall commit suicide within one year from the date hereof while sane or insane, this policy shall be null and void.” Within a year the insured committed suicide; the defendant refused to pay the policy and the executor of the insured brought this action upon the policy. Held, that the plaintiff cannot recover; that the policy issued under the option and in force at the death of the insured was in form and substance an independent, complete and isolated contract having no dependence on or connection with the term policy; that the stipulation in regard to suicide is a rigid and certain agreement, without reference to the other options not exercised, which the courts have no right or power to change.</p>

The superintendent of banks has taken possession of the business and property of the plaintiff, a banking corporation, and has brought this action as provided by law, in the name of the bank, to recover upon a promissory note. The defendants were stockholders and directors of the bank.

The facts, so far as material, are stated in the opinion. At the time of the commencement of this action the title of the parties hereto to the lands in question was not subject to any estate therein created by their father’s will; and Carrie A. Sheldon is not the owner of any “ particular estate” therein under the will of said testator.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered February 25, 1913, affirming a judgment in favor of plaintiff entered upon a verdict. The nature of the action and the facts, so far as material, are stated in the opinion. The matters of inducement set forth in this complaint could not make out a cause of action for libel unless there were at the same time a proper allegation of special damage.

' Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered November 20,1914, which modified and affirmed as modified an order of Special Term confirming the report of a referee in a proceeding to ascertain and define the amount of an attorney’s lien. The facts, so far as material, are stated in the opinion.

Parsons, deceased, for the purpose of paying her debts and funeral expenses. The facts, so far as material, are stated in the opinion. Under the provisions of the Code of Civil Procedure then in force this petitioner, John B. Boberts, being the holder of a disputed and rejected claim, could not compel a sale of decedent’s real estate until claimant’s standing as a creditor had been established in some other action or proceeding. (Matter of Pirie, 133 App.

Phipps, deceased. The facts, so far as material, are stated in the opinion. The words “Homestead Farm ” as contained in the will were properly construed by the surrogate. (Rogers v. Wheeler, 22 Wend. 148; Matter of Wheeler, 32 App.

Bailey, deceased, to mortgage his real estate in order to pay an alleged debt. The facts, so far as material, are stated in the opinion. The petition is radically and fatally defective in that it is signed, not by the petitioner, but by Beecher S. Olother, as attorney, and is verified by Beecher S. Olother, and not by petitioner.

<p>Condemnation proceedings—election of remedies—when owner of building depreciated in value through the taking of adjoining premises used in connection therewith not estopped from claiming damages by suing and recovering for collapse of such building through negligent prosecution of the public work.</p> <p>The commissioners of appraisal in this proceeding refused to allow to the appellant any consequential damages for the alleged depreciation in value of a freight house constructed and occupied by it growing out of the condemnation and appropriation by the city of certain lands formerly used in connection with such freight house. Appellant was the lessee from the same lessors of certain property situated on the east side of a street and of bulkhead property lying opposite on the west side of the same city street, both parcels being devoted to the common purposes of a freight yard. On the premises lying east of the street were located tracks and the freight house in question. On the bulkhead property there had been constructed piers and approaches, and by permission of the city tracks had been laid across the street so that cars could be moved between the bulkhead and the freight yard and freight house. The city instituted proceedings to condemn the bulkhead parcel and title thereto vested in it under said proceedings. Although none of the property occupied by the appellant for its freight yard lying east of the street was taken, it insists that the value of these premises and of its freight house were substantially impaired by reason of the condemnation and severance of the bulkhead property which had been used in connection therewith and by means of which it had obtained access to the river for the purpose of transporting its cars and freight. Subsequent to the date when the title to the bulkhead property vested in the city and the severance of that property from the freight yard had been effected, the city in the prosecution of certain work so undermined the freight house that it collapsed and was destroyed. The appellant thereupon brought an action against the city to recover damages caused by this tortious destruction of its property and therein recovered a verdict and judgment for the value of the freight house besides interest. The commissioners in this proceeding refused to make any award for damages to the freight house upon the ground that the suit against the city “ constituted an election of remedies by the claimant and estops it from further recovery in this proceeding as the judgment in such suit is res adjudieata." Held, that such ruling was erroneous and that the evidence that the value of its freight house was depreciated by the severance of the bulkhead property furnished a basis for an award of damages.</p>

The statute for violation of which the appellant was convicted reads as follows: “ § 93-b. Period of rest at night for women. In order to protect the health and morals of females employed in factories by providing an adequate period of rest at night, no woman shall be employed or permitted to work in any factory in this state before six o’clock in the morning or after ten o’clock in the evening of any day.” 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. Both the defendant and the plaintiff were unmistakably engaged in interstate commerce at the time of the injury. (Pedersen v. D., L. & W. R. R. Co., 229 U. S. 146; Lamphere v. O. R. & N. Co., 196 Fed. Rep. 336; Horton v. O., etc., Co., 130 Pac. Rep. 897; Johnson v. Southern Pacific Co., 196 U. S. 1; N. P. R. Co. v. Maerkl, 198 Fed. Rep. 1; C. R. Co. v. Colorado, 192 Fed.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered May 21,1914, which reversed a decree of the Kings County Surrogate’s Court settling the accounts of the executors of Stewart Barr, deceased, in so far as such decree purports to deal with the membership of said decedent in the New York Stock Exchange.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The executors, and not the liquidating partner, are responsible for the Stock Exchange membership not being sold. (Binger Co. v. Plumberg, 134 N. Y. Supp. 115; Hirsch v. Amin, 28 Misc. Rep. 228; Lewis v. Hojer, 16 N. Y. Supp. 534; Walbridge v. Brooklyn Trust Co., 143 App. Div. 502; Fairchild v. Fairchild, 64 N. Y. 471; Darrow v. Calkins, 154 N. Y. 503; Gilmore v. Ham, 142 N. Y. 1; Clausen v. Puvogel, 114 App. Div. 445.)</p> <p>The surrogate erred in charging the accounting executors with the value of the membership in the New York Stock Exchange, for the reason that neither the membership nor the proceeds realized therefrom vested in the executors; and they were not liable to account therefor. (Estate of Hoppock, 1 Monthly L. B. 32; Thomson v. Thomson, 1 Bradf. 24; Camp v. Fraser, 4 Dem. 212; Betts v. June, 51 N. Y. 274; Sweet v. Taylor, 36 Hun, 256; Williams v. Wheldon, 109 N. Y. 333; Wilson v. Internat. Bank, 125 App. Div. 568; Secor v. Tradesmen’s Nat. Bank, 92 App. Div. 294; Preston v. Fitch, 137 N. Y. 41.)</p>

The facts, so far as material, are stated in the opinion. The devise to the church was not void as suspending title for one year. The title vested in the church upon the death of the testator. (Oxley v. Lane, 35 N. Y. 340; Matter of Trumble, 199 N. Y. 454; Henderson v. Henderson, 113 N. Y. 1; Matter of Lincoln Trust Co., 76 Misc.

The nature of the action and the facts, so far as material, are stated in the opinion. The case was properly submitted to the jury. (Elting v. Bank of U. S., 11 U. S. 59; First Nat. Bank v. Dana, 79 N. Y. 108; Theil v. Schonzeit, 104 App. Div. 151; Gardner v. Clark, 17 Barb. 538, 551; Grady v. Fazzolair, 134 App. Div. 589.) There is evidence supporting or tending to support the verdict.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered April 25, 1913, upon an order reversing a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury and directing a dismissal of the complaint.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>Notwithstanding the so-called dissolution, the Expanding Tread Company remained a corporate entity capable of being sued in the courts of this state to the same extent as before the dissolution. (N. J. Corp. Law, § 53; U. S. Vinegar Co. v. Schlegel, 143 N. Y. 537; Demarest v. Flack, 128 N. Y. 205; American Surety Co. v. Great White Spirit Co., 58 N. J. Eq. 526; Camp v. Taylor, 19 Atl. Rep. 968; Hould v. Squire & Co., 79 Atl. Rep. 282; Gen. Railway Signal Co. v. Cade, 122 App. Div. 106; O'Reilly, Shelly & Fogarty Co. v. Greene, 18 Misc. Rep. 425; 17 Misc. Rep. 302; Hamilton v. Accessory Transit Co., 26 Barb. 46; Murray v. Vanderbilt, 39 Barb. 140; Pomeroy v. Indiana Bank, 68 U. S. 23; Singer v. Talcott Stone Co., 176 Ill. 48; Kelly & Jones Co. v. Hooker, 178 Fed. Rep. 71.) The Appellate Division erred in failing to give any effect to this statute, assuming that the dissolution was the usual common-law dissolution, which put the corporation out of existence for all purposes. (Hould v. Squire & Co., 79 App. Div. 282.)</p> <p>At common law the dissolution of a defendant corporation or a revocation of its charter pending suit operates to abate the suit, and all proceedings taken therein after such dissolution or revocation are absolutely void. (Pendleton v. Russell, 144 U. S. 640; McCulloch v. Norwood, 58 N. Y. 562; National Bank v. Colby, 21 Wall. 609; Sturges v. Vanderbilt, 73 N. Y. 384; People v. K. L. Ins. Co., 106 N. Y. 619; Matter of Palmer, 115 N. Y. 493; Rodgers v. Ins. Co., 148 N. Y. 34.) All questions with respect to the continuance or revival of actions that are pending against corporations at the time of their dissolution relate to the remedy and must be determined by the law of the forum. The validity of the judgment entered against the Expanding Tread Company in 'the state of Yew York, therefore, must be determined by the law of that state. (Union Nat. Bank v. Chapman, 169 N. Y. 538; Sturges v. Vanderbilt, 73 N. Y. 384; Hould v. Squire & Co., 79 Atl. Rep. 282; U. S. Bank v. Donnelly, 8 Pet. 360; N. P. R. R. Co. v. Babcock, 154 U. S. 190; B. & O. R. R. Co. v. Joy, 173 U. S. 226; Rodgers v. Ins. Co., 148 N. Y. 34; People v. M. C. G. Co., 65 App. Div. 306.) If, however, the Yew Jersey statutes did govern the case at bar it would make no difference because the plaintiff did not comply with the conditions thereof. (Wamsley v. Horton & Co., 12 App. Div. 312; McCulloch v. Norwood, 58 N. Y. 562; Fitzgerald v. Quann, 109 N. Y. 441; Dean v. M. E. R. Co., 119 N. Y. 540.)</p>

Laflin Kellogg as executor of George H. Morgan, deceased. The facts, so far as material, are stated in the opinion. The appellant’s renunciation of his trusteeship • was nullified by his subsequent retraction thereof before any estate vested or could properly vest in his co-trustees and he was entitled to receive the residuary bequest jointly with L. L. Kellogg and J. S. Morgan, as trustees.

The nature of the action and the facts, so far as material, are stated in the opinion. There was neither a real obligation nor a supposed obligation on the part of the estate of Andrew H. Green, or of the forger, nor a discharge of any obligation, real or supposed. (Matter of Hun, 144 N. Y. 472; Seitz v. Seitz, 59 App. Div. 150; Mills v. Mills, 115 N. Y. 80; Wood v. Young, 141 N. Y. 211; Lammer v. Stoddard, 103 N. Y. 672; Staten Island Club v. F. L. & T. Co., 41 App.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered October 30, 1914, which affirmed an order of Special Term granting a motion by plaintiff for judgment on the pleadings. The action is brought to compel specific performance of a provision of a lease for the appraisal of the leased premises.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered August 3, 1914, which reversed an interlocutory 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.

The nature of the action and the facts, so far as material, are stated in the opinion. The voting trust certificate was not a negotiable instrument, and the respondent took it subject to all the legal and equitable rights of the appellant. (Knox v. Eden Musee Americain Co., 148 N. Y. 441; Chicago v. Rock Island & Pacific R. R. Co., 7 Wall. 19; Eaton & Gilbert on Commercial Paper, 38, § .20; Treadwell v. Clark, 73 App.

The facts, so far as material are stated in the opinion. The city of Clean was without power under its charter to compel the relocation of appellant’s tracks. (L. 1893, ch. 478, § 82; L. 1913, ch. 247, § 20, subd. 7; Vil. of Carthage v. C. N. Y. Tel. Co., 185 N. Y. 448; People ex rel. N. Y. El. Lines Co. v. Squire, 107 N. Y. 593; A. R. T. Co. v. Hess, 125 N. Y. 641; People ex rel. N. Y. El. L. Co. v. Ellison, 188 N. Y. 523; People ex rel.

The action is to recover damages for the death of the plaintiff’s intestate who lost his life, as it is alleged, through the defendant’s violation of the Labor Law relating to fire escapes on factories. The defendant was engaged in operating a tannery, and the plaintiff’s intestate at the time of his death was in the defendant’s employ. One of the buildings connected with the tannery was a drying loft.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 1, 1914, which affirmed an order of Special Term denying a motion to confirm the rejection of certain claims presented on the liquidation of the Empire State Surety Company.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 21,1913, which reversed, as matter of law only, a determination of the Appellate Term affirming a judgment of the City Court of the city of New York in favor of plaintiffs entered upon a verdict and granted a new trial. The nature of the action and the facts, so far as material, are stated in the opinion.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 9, 1913, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The court erred in fixing the measure of damages at one dollar per acre, the amount received by defendant from the land company, instead of four dollars per acre, which was the amount paid by plaintiff to said land company. (Sweet v. Howell, 96 App. Div. 45; McClure v. McClure, 65 Ind. 482; Bloom v. Wolfe, 50 Iowa, 286; Barnett v. Hughey, 54 Ark. 195; Rash v. Jeune, 26 Oreg. 169; Graham v. Leslie, 4 Upper Canada C. P. Rep. 176; Graves v. Mattingly, 6 Bush [Ky.], 361; Rawle on Cov. for Title [5th ed.], 247; 8 Am. & Eng. Ency. of Law [2d ed.], 189; Jenks v. Quinn, 61 Hun, 427.) Plaintiff became evicted by the final decree in favor of Chalkley A. Wilson. (Maupin on Marketable Title [2d ed.], § 147; Allis v. Nininger, 25 Minn. 525.) Defendant had legal, if not actual, notice of the proceedings instituted by Chalkley A. Wilson. (American Land Co. v. Zeiss, 219 U. S. 47.)</p> <p>The trial judge adopted the correct measure of damages. (Jenks v. Quinn, 61 Hun, 427; 137 N. Y. 223; Taylor v. Wallace, 20 Col. 211; Cook v. Curtis, 68 Mich. 611; Bowne v. Wolcott, 1 N. D. 497; Staples v. Dean, 114 Mass. 125; Smith v. Strong, 14 Pick. 128; Byrnes v. Rich, 5 Gray, 518; Hodges v. Thayer, 110 Mass. 286; Rash v. Jeune, 26 Oreg. 169; Bingham v. Weiderwax, 1 N. Y. 509; McClure v. McClure, 65 Ind. 482; Kinney v. Watts, 14 Wend. 38.) There is no evidence to sustain a finding that plaintiff was evicted by title paramount to that conveyed to him by defendant. (Crisfield v. Storr, 36 Md. 129; Stephen v. Pattie, 3 Bibb [Ky.], 117; Thielen v. Richardson, 35 Minn. 509; Pitkin v. Leavitt, 13 Vt. 379; Austin v. King, 25 Col. App. 363; Tyler v. Judges, 175 Mass. 71; Durant v. Abendroth, 97 N. Y. 132.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. All the evidence in the case shows conclusively that at the time of the accident the chauffeur was using the automobile for his own private purposes, without the knowledge or consent of the defendant; and the defendant cannot be charged with liability for his negligence^ if any, while doing an act outside the defendant’s business.

The fact, so far as material, are stated in the opinion. Under the provisions of section 2141 of the Code of Civil Procedure, the Appellate Division was without power to reverse the determination of the state board of tax commissioners and order judgment absolute for the relator.

loss of services and expenses alleged to have been sustained by .plaintiff by reason of. personal injuries sustained by his wife through the defendant’s negligence.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 3, 1913, affirming a judgment in favor of defendant entered upon a dismissal by the court at a Trial Term in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of defendant’s highway commissioner.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 26, 1914, which affirmed an order of Special Term denying a motion for a peremptory writ of mandamus to compel defendants to hear and determine the claim of the petitioner for damages to his real property arising from certain changes of grade.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February J, 1914, modifying and affirming as modified a judgment in favor of plaintiffs entered upon a decision of the court on trial at Special Term in an action to foreclose mortgages upon real property.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 24, 1913, affirming a judgment in favor of defendant entered upon a verdict in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of defendant, his employer.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 19, 1913, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term and granting a new trial in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of the defendant in failing to guard an excavation contiguous to a highway.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 20, 1913, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term and granting a new trial in an action to recover for the death of the plaintiff’s intestate alleged to have been occasioned through the negligence of the defendant, his employer.</p>

The question involved was the constitutionality of section 8a of the Labor Law requiring that employees be granted twenty-four consecutive hours of rest in each week.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 6,1915, which reversed an interlocutory judgment of Special Term sustaining a demurrer to the complaint, overruled such demurrer and directed judgment in favor of plaintiff for the relief demanded in the complaint in a taxpayer’s action to restrain the defendant Public Service Commission from declaring certain contracts void on account of alleged violations of the Labor Law in the employment of aliens.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 14, 1913, which-affirmed an order of the court at a Trial Term setting aside a verdict directed by the court in favor of defendants in an action to recover loss on resale, freight, demurrage and selling expenses owing to the refusal of defendants to receive and pay for certain merchandise previously sold to them.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered December 13, 1913, reversing a judgment in favor of plaintiff entered upon a verdict and granting a new trial in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of the defendant.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered November 27, 1912, reversing a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and granting a new trial in an action to compel specific performance of a contract to convey real property or to recover the amount paid thereon.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 2, 1912, affirming so much of a judgment of the court at a Trial Term as decided that the defendants were not liable for part of the claim set forth in the plaintiff’s complaint in an action to recover an amount expended by plaintiff in making repairs to a bridge over tracks of the defendants.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February 11, 1913, reversing a judgment in favor of plaintiff entered upon a verdict and granting a new trial in an action for libel.</p>

<p>Appeal from a judgment, entered February 4, 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 decision of the court on trial at Special Term and directing judgment in favor of plaintiff in an action to compel the defendants to afford the plaintiff lateral support for her land.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 18, 1914, which affirmed an interlocutory judgment of Special Term overruling a demurrer to the first cause of action set forth in the complaint, being to recover money had and received. The following question was certified: “Does the first cause of action in the complaint state facts sufficient to constitute a cause of action ? ”

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered July 31, 1914, which affirmed a judgment rendered at a Trial Term for the county of Kings upon a verdict convicting the defendant of the crime of compulsory prostitution of women.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered December 6,1912, sustaining plaintiff’s exceptions to the dismissal of his complaint, ordered to be heard in the first instance by the Appellate Division, and granting a motion for a new trial in an action to recover for personal injuries alleged to hax e been sustained by plaintiff through the negligence of defendant, his employer.</p>

Appeal in each of the above-entitled actions from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 3, 1913, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term. The first action was brought to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. The second to recover for loss of services.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 25, 1913, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action to enjoin the defendants from conducting an undertaking business in the city of New York under any style embodying the name “ Stephen Merritt.”</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 10, 1913, affirming a judgment in favor of plaintiffs entered upon the report of a referee in an action in equity by the plaintiffs on their own behalf and of all other defrauded creditors and claimants of Lorenzo Oianchetta, who conducted a private bank in the city of New York, for an equal and ratable distribution of the proceeds of a certain bond for $15,000, made and executed on September 8, 1908, by the said banker as principal and the appellant, Illinois Surety Company, as surety, pursuant to chapter 185 of the Laws of 1907, as amended by chapter 479 of the Laws of 1908, conditioned that upon a default of the banker in transmitting or promptly paying over any money delivered to him, either for transmission or safekeeping, the said Illinois Surety Company would “pay all damages, costs and expenses.”</p>

Motion by Buffalo Loan, Trust and Safe Deposit Company for an order amending the remittitur herein by supplementing the same with a statement that said remittitur may make it definite and certain that the trial court, upon the accounting provided for in the decision of this case, as set forth in the opinion handed down therein, shall not be precluded from hearing, considering and passing upon any application of the trustee for an allowance out of the trust fund for its…

Wright, deceased. The decedent, Charles F. Wright, had a remainder interest in the trust fund under his mother’s will subject to the life use of his brother, William J. Wright, and subject to be defeated by the birth of issue to his said brother. The mother and both sons were non-residents. Charles F. Wright died in 1909, before his brother, who died without issue in 1912. Charles F. disposed of his remainder interest by his will.