Volume 217 — New York Reports

Appeal, by permission., from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February 5, 1915, which affirmed an order of Special Term denying a motion to confirm the report of a referee appointed in condemnation proceedings to take testimony and report upon the question of ownership. The following questions were certified: “1.

<p>Bail—Liability of surety upon bond or recognizance of defendant INDICTED FOR CRIME TO APPEAR FOR TRIAL—FORFEITURE OF BOND—■ Amount of recovery.</p> <p>A surety who has given an undertaking for the appearance of his principal to answer to an indictment is responsible for his appearance in the proper court, not only upon the first day of the term, but upon any subsequent day thereof without notice, and it is not necessary that the surety should be notified of the indictment of his principal and of the court in which he should be produced to answer tbe indictment, although said indictment may be found in any one of two or more courts.</p> <p>If there is sufficient excuse for the failure of a surety to produce his principal, the court, under the provisions of the Code of Criminal Procedure (§ 593, 594, 597), has ample power to to relieve him from his default and vacate the order forfeiting the recognizance, and in the absence of such action it is not permissible to him to go back of the order forfeiting the bail and insist that he should have had some notice before default was taken and the same was entered.</p> <p>Such a recognizance is executed under a statute for the purpose of securing and insuring the performance of an act and not for the payment by the principal of moneys. (Code Crim. Pro. § 595; Code Civ. Pro. § 1966.) The recovery should be limited by the penalty and interest from the date of the forfeiture should not be allowed thereon.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. Any damage to plaintiffs’ premises is damnum absque injuria. (Conklin v. N. Y., O. & W. Ry. Co., 102 N. Y. 107; Reining v. N. Y., L. & W. Ry. Co., 128 N. Y. 157; Rauenstein v. N. Y., L. & W. Ry.

The facts,.so far as material, are stated in the opinion. Under section 25 of the Civil Service Law relator is entitled to redress for removal for political purposes. (People ex rel. McKeown v. Ludwig, 215 N. Y. 389; People ex rel. Goldschmidt v. Travis, 167 App. Div. 475.) The relator is not entitled to a writ of mandamus under section 25 of the Civil Service Law. (People ex rel. Garvey v. Prendergast, 148 App. Div. 129; People ex rel. Ryer v. Voorhis, 151 App.

Pursuant to section 9Y0 of the Greater New York charter the board of estimate and apportionment of the city of New York, on the 4th day of December, 1914, adopted a resolution that it deemed it for the public interest that the title to certain lands and premises required for the opening and extending of Ely avenue from Jackson avenue to Nott avenue in the borough of Queens and city of New York should he acquired by the city of New York, and that the title to he so acquired…

The facts, so far as material, are stated in the opinion. The order of July 16, 1912, permitting the owners to interpose an answer was sufficient to allow a trial of the issue of necessity. (Long Branch Pier Co. v. Crossley, 40 Misc. Rep. 249; Gideon v. Dwyer, 17 Misc. Rep. 233; Flagg v. Cooper, 22 J. & S. 50; Shumann v. Orchard, 9 Daly, 245; Hart v. Washburn, 17 N. Y. Supp. 85; Pomares v. Duncan, 11 N. Y. Supp. 380; Selover v. Forbes, 22 How.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department entered July 19, 1915, sustaining a writ of certiorari and setting aside an award theretofore made by the board of assessors of the city of New York in change of grade damage proceedings and returning the proceedings to said board with instructions to make an award upon, the evidence and testimony taken by it. The following questions were certified: “ 1.

The facts, so far as material, are stated in the opinion. By virtue of the general statutory provision contained in the Code all who participate in the commission of a crime are principals, and the whole history of the statute indicates plainly that it was enacted as a jurisdictional statute, and that it relates to the jurisdiction over offenses planned or in part committed outside the state. (People v. Bihler, 154 App. Div. 618; People v. Arnstein, 157 App.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 14, 1913, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.</p> <p>This action was designated in the complaint as an action in the nature of interpleader. Plaintiff alleges that its liability to all defendants is not in excess of $874.18 and that two of the defendants have brought actions claiming more than $1,500 in excess thereof and that other defendants threaten suit. Defendants, appellants, in their answer deny that they have claims against any particular fund, hut that the amounts claimed by them are due and owing from plaintiff. The allegations of the complaint are substantially followed in the findings signed by the trial justice in favor of the plaintiff, upon which judgment was entered and, upon appeal to the Appellate Division, was unanimously affirmed. The court found that the amount of the fund is in dispute and that the defendants claim that it is greater than plaintiff concedes. The facts as found are voluminous. Briefly summarized they are as follows:</p> <p>The plaintiff, a. corporation, was engaged as a contractor in the construction of a portion of the barge canal. Between October 1st, 1908, and July 1st, 1909, one McFadden, an independent contractor, under an agreement with plaintiff, was to use the shanties of plaintiff and to make all repairs and additions thereto necessary, such improvements to belong to plaintiff. . McFadden was to board and lodge laborers in the employ of plaintiff, and the latter, to the extent that it owed wages to each laborer, was to collect the amount of such laborer’s board money and pay it to McFadden, less ten per cent, to be retained as compensation by it for the privilege to McFadden and its services in accounting.</p> <p>Two sub-contractors of plaintiff, Moran and Burke & Glenn, had a like agreement with McFadden as to" the retention of wages of laborers and payment of board bills.</p> <p>The agreement between plaintiff and McFadden terminated July 1st, 1909, and all dealings between them to and including the month of March had been settled.</p> <p>Prior to July 1st, 1909 (the particular time is not stated),, there was due from the sub-contractors to McFadden for money retained out of the wages of laborers, as follows: from Moran $285.10, from Burke & Glenn $548.54, which indebtedness plaintiff assumed and agreed to pay to McFadden. On July 1st, 1909, plaintiff was indebted to McFadden for money retained from employees’ wages on account of board as follows: For April, $1,205.67; for May, $460.94, and for June $276.45, a total of $1,943.06, which amount, with the indebtedness assumed by plaintiff to McFadden of $833.64, made its indebtedness to McFadden July 1st, 1909, the sum of $2,776.70.</p> <p>McFadden by orders in writing, delivered during the month of May, directed plaintiff to pay $364.61 out of the moneys in its hands due from Burke & Glenn, and $153.60 from money due him by Moran, and $107.70 from.money due from the plaintiff. In addition the plaintiff paid to the sheriff of Niagara county $800 out of moneys in its possession, by virtue of an attachment levied thereon in an action brought in the Supreme Court against McFadden.</p> <p>After the receipt by plaintiff of the orders stated, and the payment to the sheriff of Niagara county, there remained in the accounts, if treated separately, the following amounts: Burke & Glenn’s, $183.93; Moran’s, $131.50, and plaintiff’s $1,035.66. The trial justice found that against the Burke & Glenn account McFadden gave an order for $84.30, but the date of the same, or of its delivery to plaintiff, or date of payment of same as made, is not stated in the findings.</p> <p>June 2d McFadden gave to the appellant Home Bread Company two several orders on the plaintiff, which were shortly thereafter served on it (the date of delivery is not otherwise found), one for $183.47, payable “out of any money or moneys now due or to become due for labor and board furnished on contracts 64 and 66, Barge Canal, during the month of May,” and one for $365.22 payable “ out of any money or moneys now due or to become due for labor and board furnished on contracts 64 and 66 during the month of April.” The plaintiff paid on the last above-named order $147.37 (date not given), and upon the first above-mentioned order prior to June 12th, had paid $8.32. On June 12th it gave to the Home Bread Company its check dated that day for $183.47, the amount of the order, but before the check was paid the plaintiff stopped payment on the same for the reason that the check was inadvertently given in excess of the amount of said order, and there were other orders outstanding against the funds in its hands aggregating largely in excess thereof, and there remains unpaid on said order $175.15.</p> <p>August 2d, 1909, the Home Bread Company commenced an action in the Supreme Court to recover upon the $183.47 check and the $365.22 order, which has been stayed pending the determination of this action. As matter of law, the trial justice held that upon payment by plaintiff into court of the amount found in its hands it was to be relieved from all liability to the Home Bread Company, and that the action brought by the latter company was perpetually stayed, and said company was restrained and enjoined from bringing any action or actions against the plaintiff.</p> <p>June 1st, 1909, McFadden gave an order an plaintiff, dated that day, and served on plaintiff June 14th, directing plaintiff to pay William H. Earl the sum of $105 out of any moneys due to McFadden for the May and June board bills, and no part of said sum has been paid, although Earl has filed a lien against the plaintiff, and by the conclusions of law found by the court the plaintiff was to be relieved upon payment into court of any liability to Earl. Earl has not appealed from the judgment so entered.</p> <p>June 2d McFadden gave to the appellant Mack an order on plaintiff to pay said Mack $500 out of the moneys in its hands coming to McFadden, and on June 7th gave to said Mack two orders, one for $1Q0 payable from the moneys due McFadden from the. Burke & G-lenn account, the second one for $403.75 from money due McFadden from the Moran account, the total of such orders being $1,003.75. The three orders were served on the plaintiff soon after the dates thereof, but the exact date is not given. August 2d, 1909, Hack commenced an action against the plaintiff in the Supreme Court to recover upon the order or assignment of June 2d, and to recover the remainder of his account against plaintiff, embodying the other two orders, which action was stayed and the trial justice in this case determined that upon payment by plaintiff of the moneys in its hands into court, plaintiff be relieved from all liability to the defendant Mack evidenced by the three orders or assignments, except any liability that plaintiff may have incurred to Mack by reason of any independent obligation to pay him for merchandise, and that the action brought by Mack be perpetually stayed to the extent represented by the three orders aggregating $1,003.75.</p> <p>One Ransom was a creditor of McFadden, and McFadden gave him an order dated June 9th, 1909, for $400, payable out of the May and June board bills, no part of which has been paid and for which Ransom filed a lien, the date of the filing of which is not given. Ransom was restrained by the judgment from further proceeding upon his part and he has not appealed in this case.</p> <p>The court found that during the performance of the agreement, which was prior to July 1st, 1909, McFadden purchased of one Pease lumber of the value of $145.83 which McFadden used in improving and repairing the shanties of the plaintiff under the terms of the agreement between plaintiff' and McFadden, and for which McFadden never paid Pease. The date of the sale of the lumber is not given, but the court found that after the abandonment of the agreement, July 1st, 197)9, but at .what particular time the court does not state, Pease was about to file a lien on said shanties unless the plaintiff paid for the lumber, and thereupon the plaintiff paid Pease $145.83 out of the moneys in its hands going to McFadden, and that it had a right to do so under the terms of its agreement with McFadden, and said payment was valid and binding.</p> <p>The court also found, as matter of fact, that during-the performance of the agreement the appellant Fermoile delivered to the defendant McFadden goods and merchandise of the value of $113.83, for which Fermoile had filed with the' comptroller of the state a lien against the plaintiff and that after the abandonment of the agreement, July 1st, 1909, several of the defendants filed liens with the' comptroller of the state of New York against the payment of moneys under its barge canal contracts with plaintiff, based wholly upon obligations against McFadden, and plaintiff was obliged to and did release said liens by bonding the same so it could obtain its payment from the state, at an aggregate expense of $116.79 for attorneys’ services and disbursements and surety company bonds, which it paid out of the moneys in its hands going to McFadden, and that it had a right so to do, and such payments were valid and binding. As to the dates of the filing of such liens or of the payments made by the plaintiff therefor, the findings by the trial justice are silent.</p> <p>These two payments aggregating $262.62 were included in the aggregate of payments made by the plaintiff of $1,925.52 out of the sum of $2,776.70 leaving, as determined by the court, in the hands of plaintiff the sum of $851.18 belonging to said defendant McFadden, and that $851.18 is all -that it owes McFadden or any one claiming through or under him, and as conclusion of law that the plaintiff could maintain the action to determine the rights and claims of the defendants to the money; that the plaintiff should pay into court, to the credit of the action, the sum of $851.18, with interest thereon from July 1st, 1909, to the time of such payment, less its costs to be taxed, and, upon such payment, the plaintiff be relieved from all further liability in this action, and the defendants be permitted to establish as between themselves their right to the fund thus paid into court according to the findings and conclusions in this case.</p> <p>At the close of plaintiff’s case defendants, appellants, moved to dismiss the complaint on the ground that plaintiff had failed to prove facts sufficient to constitute a cause of action of interpleader, the amount of the fund being in dispute and they making no claim to any particular fund.</p> <p>Appellants Hack, Fermoile and the Home Bread Company having brought actions against plaintiff as their primary debtor, and plaintiff having answered therein denying its liability, cannot avoid meeting that issue in a court of law by bringing a suit in equity claiming to be a stakeholder and interpleading appellants with other claimants who concede plaintiff’s position to be that of a stakeholder as to them. (U. S. Trust Co. v. Wiley, 41 Barb. 477; Southwark National Bank v. Childs, 39 App. Div. 560; Hanna v. Manufacturers’ Trust Co., 104 App. Div. 90.) The action cannot be maintained because the different claimants are not claiming the same thing, which is essential in interpleader actions. (Bassett v. Leslie, 123 N. Y. 396; Hanna v. Manufacturers’ Trust Co., 104 App. Div. 90; Dorn v. Fox, 61 N. Y. 264; Freda v. Montauk Co., 26 Misc. Rep. 199.) The action cannot be maintained because the amount due from plaintiff is in dispute. (Dubois v. Union Dime Sav. Inst., 89 Hun, 382; B. & O. R. R. Co. v. Arthur, 90 N. Y. 234; N. E. M. L. Ins. Co. v. Odell, 50 Hun, 279; Bernstein v. Hamilton, 26 App. Div. 206; Jackson v. Knickerbocker, 49 App. Div. 107.) The action cannot be maintained because plaintiff does not stand in the position of an innocent stakeholder, but has voluntarily and for profit placed itself in a position to invite litigation. (Debeau v. Rogers, 2 Paige, 209; Cromwell v. Am. T. & T. Co., 57 Hun, 145; Marvin v. Elwood, 11 Paige, 265.)</p> <p>By reason of the facts pleaded and proved in this action the plaintiff was exposed to danger, vexation and loss from conflicting, independent claims, derived from a common source. (Crane v. McDonald, 118 N. Y. 654; Dorn v. Fox, 61 N. Y. 268.) This action was properly commenced and is maintainable to prevent multiplicity of suits and to determine the rights of the parties in a single action. (Bd. of Suprs. v. Deyoe, 77 N. Y. 226.)</p>

<p>New Rochelle (city of) — assessment for widening a street — held that resolution of common council providing for cost of improvement did not include the relator’s land.</p> <p>On review of an order confirming an assessment for widening a street in the city of New Rochelle, held, that the resolution of the common council providing for the cost and expense of the improvement to be paid by the owners of the lots or parcels of land benefited thereby did not include the relator’s land in lot 1 of block 815, section 3.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 1,1915, which reversed an order of Special Term denying a motion for an in j unction, pendente lite. The following questions were certified: “1. Does the complaint state facts sufficient to constitute a cause of action ? 2.

<p>Liquor tax certificate — petition to revoke certificate — when it may not be dismissed because allegations thereof are on information and belief — evidence —■ judgment of conviction for disorderly conduct against former holder of certificate after transfer thereof not evidence against new holder thereof.</p> <p>1. After a- trial upon the merits an objection to the form of the petition to revoke a liquor tax certificate that its allegations are on information and belief, and that there is no sufficient statement of. the sources of the petitioner’s information or the grounds of his belief, does not require the dismissal of the proceeding. (Matter of Peck v. Cargill, 167 N. Y. 391; Matter of Plass, 71 App. Div. 488; 175 N. Y. 524; Matter of Farley, 212 N. Y. 299, distinguished.)</p> <p>2. A judgment rendered on a plea of guilty against a former holder of the certificate made after its transfer is not'evidence against the new holder (Liquor Tax Law, § 15, subd. 8). As against him, the violation, of the law must be established by independent evidence since the rule that an estoppel binds privies as well as parties applies only to a privity arising after the event out of which the estoppel arises.</p>

Gallagher, deceased. ■ The will speaks as of the date of the death of the testatrix, and the bequest of the contents of the safe deposit box covers only such articles as were therein at the time of the death of the testatrix. (Waldo v. Hayes, 96 App. Div. 454; Jarman on Wills [6th Eng. ed.], 409; Bothamley v. Sherson, L. R. [20 Eq.] 304; Trinder v. Trinder, L. R. [1 Eq.] 695; Drakes v. Martin, 23 Beav. 89; 53 Eng. Rep. 35; Goodlad v. Burnett, 1 K. & J. 341; 69 Eng.

On September 4,1913, the county judge of Schenectady county granted an injunction in this action restraining the defendants, their. agents, servants and employees from laying a concrete sewer under the sidewalk in front of the premises of the plaintiff and from cutting down, mutilating or in any way otherwise injuring the trees in front of said premises and along the street on which said premises were located.

The nature of the action and the facts, so far- as material, are stated in the opinion. The proposed issue of four per cent bonds in exchange for three and one-half per cent bonds is illegal and in violation of section 141 of the Eailroad Law and of section 55 of the Public Service Commissions Law. (Appeal of City of Erie, 91 Penn.

The facts, so far as material, are stated in the opinion. It was not necessary to close Front street, or. any part thereof, to secure to the public freedom from the obstruction of the streets of the city by railroads, or adequate services and facilities to the railroad for the transportation of passengers, freight and property. (People ex rel.

<p>Mohawk river—title to land under the river — ejectment — hction' to recover land formerly lying in bed of the Mohawk river but now some distance from channel as the result of straightening the river under statutory authority — facts examined, and held, that plaintiffs have. title to land in question through grant from George the Second and mesne conveyances.</p> <p>.H.'The courts have frequently held that the title to the bed of the Ufob^k river, generally, has not passed to the grantees of riparian b-flt has remained in. the people of the state. This has beep held by the application of two theories: First, that in grants made to settlers of the Mohawk valley under the Dutch government the tiéfd'oPthe river was excepted, and, therefore, passed as unconVéyé'd- land's-to Great Britain, and still later to the" state of New York; or, second, that the rule of the English common law, which treated $s navigable and .public only those streams where the tide ebbed and. flowed, was not applicable to our country; that the proper test was of actual navigability, and that where a stream was actually navigable, as the Mohawk was, it was subservient to the public use, and, therefore, that a conveyance bounded by or upon it would carry only to the bank, and not to the center of the' stream. It is held, however, that the sovereign power might,- if it saw fit, convey the title to the bed of a stream subj ect to public purposes and uses, and that such a conveyance if made by the English sovereign before the separation of the colonies,, is to be recognized.</p> <p>2. This is an action of ejectment to recover a parcel of land formerly lying in the bed of the Mohawk river within the limits of the city of Utica, to which the defendant claims title from the state. The land in question now lies some distance from the channel of the river as the result of straightening the river under the authority of an act of the legislature. The plaintiffs contend that the state had no title to the bed of the Mohawk river at the point in question at the time it attempted or purported to convey title thereto to the defendant, but that it was conveyed to plaintiffs’ predecessors in title by a grant, or patent, executed by George the Second in 1734 and that there is a complete chain of title to such land from the king’s patentees to the plaintiffs. Held, upon examination of the evidence showing the source and the history of the title to the lands in question, prior to the execution of the patent, and upon construing the patent itself, that King George, having title to the bed of the stream at the time the patent was executed, did intend to and did convey the same to the patentees therein named subject to public rights and uses.</p> <p>3. It is contended that, because the patent described the lands therein conveyed as “ lying and being * * * on both sides of the Mohawk river,” there was thereby evidenced an intent not to include the intervening bed of the river, and that hence title thereto was in the state. Held, that although the general location of the land was fixed by reference to the river, the conspicuous landmark of that country, and by statement that it extended a stated distance on both sides of the river, this general location of the tract ought not to be construed as overruling the definite and exact boundary lines set forth in the patent, which not only included the bed of the stream but also included an amount of land corresponding with remarkable accuracy to the large acreage of land called for by the grant. Such boundary lines were controlling and carried title to the bed of the stream, subject to public rights and uses.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered January 13, 1915, which affirmed a judgment rendered at a Trial Term for the county of Washington convicting the defendant of the crime of grand larceny in the second degree. The facts, so far as material, are stated in the opinion.</p>

<p>Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered May 4, 1915, which affirmed an award of the state workmen’s compensation commission.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The plaintiff’s employment was not such as to bring his claim within the provisions of the Workmen’s Compensation Law. (G., H. & N. Ry. Co. v. Cochran, 49 Tex. App. 591; Gaffney v. Ry. Co., 127 Wis. 113; Malone v. B., C. R. & N. Ry. Co., 65 Iowa, 417; Eau v. C., M. & S. P. Ry. Co., 95 Wis. 69; C., K. & W. R. R. Co. v. Pontius, 157 U. S. 209.)</p> <p>The taking care of horses is incidental to the operation of wagons and other vehicles drawn by horses. (S. L. & S. W. Ry. Co. v. Thornton, 146 Tex. App. 649; S. L. & S. F. Ry. Co. v. Bussong, 40 Tex. App. 476; Callahan v. St. L., M. B. T. Ry. Co., 170 Mo. 473; Pidgeon v. E. Ins. Corp., 102 N. E. Rep. 932.)</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered November 19, 191'5, which reversed an order of Special Term denying a motion to amend a condemnation proceeding unless the petitioner should stipulate to comply with certain conditions prescribed by said order.

The facts, so far as material, are stated in the opinion. ■ The acts proven against defendant constituted burglary in the third degree. (Penal Law, § 404; Rosenthal v. American Bonding Co., 143 App. Div. 143; People v. Gartland, 30 App.

The facts, so far as material, are stated in the opinion. There is abundant evidence to establish that there was a hole in the sidewalk six inches deep which had existed for months and into which plaintiff fell. (Williams v. Brooklyn, 33 App. Div. 539; Durr v. N. Y. C. & H. R. R. R. Co., 184 N. Y. 320; Fordham v. Gouverneur, 160 N. Y. 541.) The jury did not believe defendant’s witness and were not bound to do so. (Becker v. Koch, 104 N. Y. 404; Tredgen v. Nat. El.

The facts, so far as material, are stated in the opinion. The court erred in the reception of the alleged statements of the defendant in evidence (People v. Brasch, 193 N. Y. 46; People v. Strait, 154 N. Y. 165; People v. Fox, 121 N. Y. 453; Hendrickson v. People, 10 N. Y. 1). There was no error in receiving in evidence the verified and sworn statements and confessions of the appellant.

People v. Scharf, 168 App. Div. 494, reversed. Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered July 30, 1915, which reversed a judgment of the Kings County Court rendered upon a verdict convicting the defendant of the crime of grand larceny in the first degree. The facts, so far as material, are stated in the opinion.

<p>Appeal, by permission, from so much of an order of the Appellate Division of the Supreme Court in the first judicial department, entered November 26, 1915, which affirmed an order of Special Term granting a motion by defendants for judgment in their favor upon the pleadings.</p> <p>The following question was certified: “Does the complaint state facts sufficient to constitute a cause of action ? ”</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The exclusion of the plaintiff from defendants’ theatres is forbidden by the express terms of the present Civil Eights Act. (Collister v. Hayman, 183 N. Y. 250; L. 1913, ch. 265, § 40; Greenberg v. W. T. Assn., 140 Cal. 357.) The exclusion of the plaintiff from defendants’ theatres is forbidden by principles of public policy. (Aaron v. Ward, 203 N. Y. 351; Dean v. Clark, 80 Hun, 80; T. P. R. Co. v. G. L. I. Co., 60 N. J. L. 246; Wakefield v. Van Tassell, 202 Ill. 41; People ex rel. Burnham v. Flynn, 189 N. Y. 180.) A theatre ticket is not under the law of this state a mere revocable license. (Wood v. Leadbitter, 13 M. & W. 838; Hurst v. Picture Theatres, L. R. [1 K. B. 1915] 111; Greenberg v. W. T. Assn., 140 Cal. 857; Ex parte Quary, 149 Cal. 79.)</p> <p>At common law the theatre proprietor could admit or refuse whomever he chose; and a mandatory injunction compelling him to enter into a contract of admission was an impossibility. A fortiori, the plaintiff, coming not for personal amusement, but on the business of a newspaper, could have no cause of action either at law or in equity. (People ex rel. Burnham v. Flynn, 189 N. Y. 180; Aaron v. Ward, 203 N. Y. 351; Collister v. Hay-man, 183 N. Y. 250; People v. King, 110 N. Y. 418; Luxenberg v. K. & P. A. Co., 64 Misc. Rep. 69; Purcell v. Daly, 19 Abb. [N. C.] 301; Marrone v. W. J. Club, 227 U. S. 633; Wood v. Leadbitter, 13 M. & W. 838; Shubert v. Nixon Amusement Co., 83 N. J. L. 101; McCrea v. Marsh, 12 Gray, 211; Burton v. Scherpf, 1 Allen, 133; Pearce v. Spalding, 12 Mo. App. 141; Johnson v. Wilkinson, 139 Mass. 3; Greenberg v. Western Turf Assn., 140 Cal. 357; Taylor v. Cohn, 47 Oreg. 538; Meisner v. Detroit, etc., Ferry Co., 154 Mich. 545; Buenzle v. Newport Amusement Assn., 29 R. I. 23; Horney v. Nixon, 213 Penn. St. 20; W. W. V. Co. v. Black, 113 Va. 728.) The Civil Rights Act as originally passed did not change the common-law rights of the proprietor of a theatre, except to forbid discriminations for reasons of class. It could give this plaintiff no cause of action. (Grannan v. W. R. Assn., 153 N. Y. 449; Aaron v. Ward, 203 N. Y. 351; Joyner v. Moore-Wiggins Co., 152 App. Div. 266; People v. King, 110 N. Y. 418; Collister v. Hayman, 183 N. Y. 250; People ex rel. Burnham v. Flynn, 114 App. Div. 578; 189 N. Y. 180; Luxenberg v. K. & P. A. Co., 64 Misc. Rep. 69; Shubert v. Nixon Amusement Co., 83 N. J. L. 101; Donnell v. State, 48 Miss. 661; People v. King, 110 N. Y. 1; Conner v. Sylvester, 13 Allen, 247.) There was nothing in the amendment of the Civil Rights Law by chapter 265 of the Laws of 1913 which affected the foregoing principles and decisions, otherwise than favorably to the defendants. The context of the amendment, the re-enactment of the first and principal section almost verbatim, and the debates in the legislature, show that its purpose was to reach certain objectionable notices and advertisements by places of public accommodation as to the class of patronage solicited, in evasion of the law against class discrimination. (People ex rel. Hunt v. Priest, 90 App. Div. 520; 180 N. Y. 532; People v. Palmer, 109 N. Y. 110; Bertles v. Nunan, 92 N. Y. 152; Grannan v. W. R. Assn., 153 N. Y. 449; Civil Rights Cases, 109 U. S. 3; Connole v. N. & W. Ry. Co., 216 Fed. Rep.- 823; Ex parte Farley, 40 Fed. Rep. 66; Jennison v. Kirk, 98 U. S. 453; United States v. Wilson, 58 Fed. Rep. 768.)</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 5, 1913, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The contract was enforceable. (King v. Broadhurst, 164 App. Div. 689; Donovan v. Harriman, 139 App. Div. 588; Howie v. Kosnowitz, 83 App. Div. 295.)</p> <p>There was no contract between the parties other than one continued from week to week as long as the plaintiff was willing to work for the defendant and the defendant was willing to employ the plaintiff. (United Press v. N. Y. Press Co., 164 N. Y. 406; Mackintosh v. Kimball, 101 App. Div. 494; Bluemner v. Garvin, 120 App. Div. 29; Lambert v. Hays, 136 App. Div. 574; Butler v. Kemmerer, 218 Penn. St. 242; Seebeh v. American M. & M. Co., 32 N. Y. S. R. 1051; 128 N. Y. 619.) The plaintiff was not entitled to recover for unpaid salazy from November 11 to December 31, 1911. (Howard v. Daly, 61 N. Y. 362; Weed v. Burt, 18 N. Y. 191; Prior v. Flagler, 13 Misc. Rep. 115; McGarrigle v. McCosker, 83 App. Div. 184.)</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered December 24, 1914, which affirmed an interlocutory judgment of Special Term overruling a demurrer to the complaint. The following questions were certified: 1.

The appellant was charged in the Court of Special Sessions of New York city with having violated section 337 of the Public Health Law, as amended by chapter 414, Laws of 1914, by placing food, i. e., pigs’ feet, in a cold storage warehouse, and keeping the same there for more than ten calendar months.

The nature of the action and the facts, so far as material, are stated in the opinion. There is nothing in the record which warrants a recovery against the defendant either upon the facts or the law. (Shoepflin v. Coffey, 162 N. Y. 12; McDonald v. Met. St. Ry. Co., 167 N. Y. 66; Sundheimer v. City of New York, 176 N. Y. 495; N. Y. Const, art. 8, §§ 1, 2, 3; Code Civ. Pro. §§ 1919-1924; Van1 Aernam v. Bleistein, 102 N. Y. 355; Rourke v. Elk Drug Co., 75 App.

<p>Surety bonds — action upon bond given by contractor for faithful performance of work — when substitution of new contract for original contract did not extinguish right of action — Statute of Limitations — when foreign corporation not precluded from pleading such statute.</p> <p>1. Defendant gave a bond conditioned for the faithful performance of a contract by another. The bond contained a provision for liquidated damages for any delay at a fixed rate per day, and the provision that action against the surety must be begun “within six months after the completion of the work specified in said contract.” The contractor refused to go on with the work, and thereafter, with the approval of the defendant, a new contract was made which, among other things, provided that “ this agreement shall not be deemed to revive said original contract, or as a waiver of any rights thereunder, but all the provisions thereof shall apply to this agreement except as herein modified.” The defendant indorsed on this agreement a statement of its approval “ without prejudice to any rights of the respective parties” under the,existing bond. More than six months after the completion of the work, this action was brought. Held, that the effect of the new contract was not to extinguish the right of action against defendant.</p> <p>, 2. Although the defendant is a foreign corporation, it is not precluded from taking advantage of any defense of limitation, whether statutory or contractual. It is here by force of a license sought for and granted under the authority of our law (Ins. Law, §§ 9, 30; Cons. Laws, eh. 28), and in its transaction of business in this state it is to be dealt with pro hae mee as a domestic corporation and may avail itself of the Statute of Limitations when it is applicable.</p> <p>3. The defense that the action was not begun in time is not applicable. The plaintiff’s grievance is a total abandonment of and refusal to complete the work. Hence, his cause of action was not postponed until completion, did not depend upon completion and is not affected by a limitation which postulates completion.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The Appellate Division erred in deciding that the evidence failed to support a finding of negligence. . (Cooney v. Central Dredging Co., 151 App. Div. 345; Lipstein v. Provident Loan Society, 154 App.

The nature of the action and the facts, so far as material, are stated in the opinion. A valid lien existed at the time of the commencement of this action to foreclose the lien. (M. L. Ins. Co. v. Dake, 87 N. Y. 257; Hartwell v. Riley, 47 App. Div. 154; Kelly v. Highland Const. Co., 133 App. Div. 579; Vilas v. Page, 106 N. Y. 439.) The order continuing the lien is wholly inoperative unless the lien is redocketed.

<p>Building contract — default by contractor before completion of work — when owner may maintain action against surety of contractor for moneys expended and to be expended in completing buildings — questions for jury.</p> <p>A contractor gave a bond of a surety company, the defendant herein, for the faithful performance of the work in' erecting two houses. After the first house had been partially built and the' contractor had been paid the contract price therefor in part, and before any substantial work had been done on the second house, the contractor stopped work. After the expiration of the timé in which the two houses were to be completed, the plaintiff, pursuant to the terms of the agreement, canceled the agreement and completed the first house at a cost considerably more than the amount remaining unpaid to the contractor. Subsequently, and after competitive bidding, plaintiff entered into an agreement with another contractor for the erection of the second house for a sum larger than that which was to be paid to the first contractor. This action is brought to recover the amount of the bond given by the first contractor. At the close of the trial the court submitted specific questions of fact to the jury, all of which the jury found for the plaintiff and among which it was found that the damage, suffered by plaintiff was the amount expended by plaintiff in completing the first house and the increased contract price for erecting the second house. Reid, upon examination of the record, that some expenditure was properly and necessarily made, in completing the first house and that the trial court was in error, therefore, in directing a verdict for the defendant and dismissing the complaint; that the court erred, also, in assuming that the defendant was not in any event liable upon the bond by reason of the failure of the contractor to erect the second house as provided in the original agreement, and that the question of the good faith of plaintiff, in contracting for the erection of the second house at the increased price after the failure of the original contractor, is a proper question for consideration, and a new trial must be granted.</p>

<p>Hew York (city of) —proceeding to acquire lands for widening a street — assessment of cost thereof upon property deemed to be benefited thereby — when proceedings may not be discontinued upon application of persons assessed for benefit — when proceedings may be attacked.</p> <p>1. Where in a proceeding under the Greater New York charter (L. 1901, ch. 466, §§ 970-1011) to acquire title to lands for the widening of a street, the board of estimate and apportionment determined that the whole of the cost of the proceeding, including the awards for damages, should be assessed upon the property deemed to be benefited within a prescribed area of assessment, persons so assessed and who object to the confirmation of the report of the commissioners of estimate and the commissioner of assessment, are not entitled as a matter of right to have the proceeding discontinued under section 986 of the charter because they constitute a majority of the persons assessed for benefit. The charter requires 111 a majority in amount of the whole assessments and awards ” for that purpose. The amount of the assessments and the amount of the awards are to be added together, and the parties who object must represent a sum exceeding one-half of the aggregate thus obtained. The objecting property owners fail to bring themselves within this requirement.</p> <p>2. Although the persons assessed for benefit in such proceeding may attack the proceeding for want of jurisdiction or for any other matter appearing on the record before the commissioners which discloses that their rights have been injuriously affected, they have not the absolute right under the charter to adduce before the commissioners expert testimony or other evidence for the purpose of showing that the awards are excessive in amount.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered April 30, 1915, which affirmed a judgment of the Jefferson County Court rendered upon a verdict convicting the defendant of a violation of subdivision 3 of section 290 of the Highway Law and also affirmed an order of the said court overruling a demurrer to the indictment.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The indictment is insufficient in law, and the demurrer thereto was improperly overruled. (People v. Rosenheimer, 70 Misc. Rep. 433; 146 App. Div. 875; 209 N. Y. 115; People v. Dumar, 106 N. Y. 502; Peoples. Lowndes, 130 N. Y. 455; People v. Stark, 136 N. Y. 538; People v. Albow, 140 N. Y. 130; People v. Kane, 161 N. Y. 380; People v. Stedeker, 175 N. Y. 57; People v, Corbalis, 178 N. Y. 516; People v. West, 106 N. Y. 293; People v. Geyer, 196 N. Y. 364; Feople v. Bromwich, 200 N. Y. 385.)</p> <p>It was not necessary to state in the indictment matters which were necessarily implied or matters of which the court will take judicial knowledge. (Joyce on Indictments, §§ 273, 276; Anthony v. State, 29 Ala. 27; Ball v. State, 48 Ark. 94; Wilkins v. United States, 37 C. C. A. 588; State v. Warren, 57 Mo. App. 502.) It is sufficient to plead a statutory offense in words of the statute. (People v. Adams, 85 App. Div. 390; People v. West, 106 N. Y. 293; People v. Weldon, 111 N. Y. 569.)</p>

The facts, so far as material, are stated in the opinion. The city of New York has been vested with the power to protect the life and property of those using the highway and may compel the respondents to so relocate their tracks on Central Park West as not to interfere with the ordinary use of that public highway.

The nature of the action and the facts, so far as material, are stated in the opinion. The specifications under each of the five separate classes into which they are divided are separate and distinct from the specifications under any other class thereof, except so far as the specifications under one class are expressly referred to in the specifications of another. The court erred in holding otherwise. (Deckert v. Municipal El. L. Co., 9 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff was guilty of contributory negligence as a matter of law. (Streets v. Grand Trunk Ry. Co., 76 App. Div. 480; 178 N. Y. 553; Shannon v. N. Y. C. & H. R. R. R. Co., 88 App. Div. 349; St. L. & S. F. R. R. Co. v. Dewees, 153 Fed. Rep. 56; M., K. & T. Ry. Co. v. Collier, 157 Fed. Rep. 347; Butler v. B., R. & P. Ry. Co., 142 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff, having made a general.assignment for the benefit of creditors, was not the real party in interest. (Code Civ. Pro. § 449; Foster v. Central Nat. Bank, 183 N. Y. 379; Osborne v. Hughes, 128 App. Div. 128; Greenwood v. Marvin, 111 N. Y. 423.) The plaintiff is the real party in interest. (Weed v. Hamburg B. F. Ins. Co., 133 N. Y. 394; Meinhardt v. Excelsior Brewing Co., 98 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The agent who delivered the policy was a soliciting agent with limited powers and not a general agent, and had no power to waive any provision of the policy. (Russell v. Prudential Ins. Co., 176 N. Y. 178.) McClelland, the insured, was chargeable with notice of the limitation upon the soliciting agent’s (Becker) authority. (Russell v. Prudential Ins.

The nature of the action and the facts, so far as mate-. rial, are stated in the opinion. It was reversible error for the court to charge the jury that “ if the plaintiff was not required in the discharge of his duties to the defendant to board such train, he cannot recover.” (Noonan v. N. Y. C. & H. R. R. R. Co., 42 N. Y. S. R. 41; 131 N. Y. 594; Sprong v. B. & A. R. R. Co., 58 N. Y. 56; Butler v. N. Y. & Queens Co. R. R. Co., 42 App.

The facts, so far as material, are stated in the opinion. The term “ children ” does not include ‘ ‘ grandchildren ” unless there is something in the will to show that the word was used in a broader sense. (Mowatt v. Carow, 7 Paige, 328; Palmer v. Horn, 84 N. Y. 516; Matter of Truslow, 140 N. Y. 599; Pimel v. Betjemann, 183 N. Y. 194; Matter of Keogh, 126 App. Div. 285; Davies v. Davies, 129 App.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered July 30, 1915, which affirmed a decree of the Westchester County Surrogate’s Court, admitting to probate the will of George W. Horton, deceased.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The exclusion by fche surrogate of the exemplified copy of the paper writing on file in the office of the clerk of the Surrogate’s Court of Lake county, in the state of Ohio, and of the record of the proceedings of said court had thereon, and of the letters testamentary issued out of said court to the contestant herein, was error, by which the contestant was necessarily prejudiced. (Burnham v. Pidcock, 58 App. Div. 273; Van Deventer v. Mortimer, 56 Misc. Rep. 650; Wigmore on Evidence, § 1680; Matter of Rubins, 128 App. Div. 626; 195 N. Y. 527; Matter of Anderson, 78 Misc. Rep. 713; Matter of Will of Merriam, 136 N. Y. 58; Garvey v. U. S. F. & G. Co., 77 App. Div. 391; Simmons v. Saul, 138 U. S. 439; Matter of Law, 56 App. Div. 454; Matter of Gaines, 84 Hun, 520; Matter of Barnes, 70 App. Div. 527; Matter of Nash, 37 Misc. Rep. 709; Matter of Williams, 34 Misc. Rep. 749.) Since the Ohio statute relative to the probate of wills does not require notice to non-resident heirs or next of kin, the failure to give such notice in no wise affected the competency of the evidence excluded. (People v. Wayne, 39 Mich. 198; Crippen v. Dexter, 79 Mass. 330; Carpenter v. Denoon, 29 Ohio St. 379; Matter of Crawford, 21 Ohio C. C. 544; Bonnemort v. Bill, 167 Mass. 339; Shoyer v. Richmond, 16 Ohio, 455; Dickey v. Vann, 81 Ala. 425.) It was the duty of the surrogate to give full faith and credit to the judgment of the Probate Court of Lake county, Ohio. (U. S. Const. art. 4, § 1; U. S. R. S. § 905; Mills v. Duryee, 11 U. S. [7 Oranch] 481; Buckner v. Finley, 27 U. S. [2 Pet.] 586; M’Elmoyle v. Cohen, 38 U. S. [13 Pet.] 312; Mitchell v. Lenox, 39 U. S. [14 Pet.] 49; Bank v. Dalton, 50 U. S. [9 How.] 522; Booth v. Clark, 58 U. S. [17 How.] 322; Hoyt v. Sheldon, 66 U. S. [1 Black] 518; Christmass v. Russell, 72 U. S. [5 Wall.] 475; Green v. Van Buskirk, 72 U. S. [5 Wall.] 307; Cheever v. Wilson, 76 U. S. [9 Wall.] 108; Crapo v. Kelly, 83 U. S. [16 Wall.] 610; Dupasseur v. Rochereau, 88 U. S. [21 Wall.] 130; Turnbull v. Payson, 95 U. S. [17 Otto] 418; Wisconsin v. Insurance Co., 127 U. S. 265; Cole v. Cunningham, 133 U. S. 107.) The production, under the stipulation, of an exemplified copy of the Ohio will and of a judgment and proceedings of the Probate Court of Lake county, in the state of Ohio, of which county the decedent was a resident and in which he was domiciled at the time of his death, declaring the same to be his last will and testament and admitting it to probate, established the factum of the Ohio will. (Shipman v. Treadwell, 208 N. Y. 410; Guggenheim v. Wahl, 203 N. Y. 390; Rupp v. Tupp, 156 App. Div. 391; Crippen v. Tester, 79 Mass. 330; Lazier v. Westcott, 26 N. Y. 146.)</p> <p>The- records of the Probate Oourt of Lake county, Ohio, were properly excluded. (Matter of Hathaway, 4 Ohio St. 383; Matter of Jones, 2 Ohio N. P. 194; Barr v. Chesterman, 2 Ohio C. C. 441; Wadsworth v. Purdy, 12 Ohio C. C. 8; Davis v. Davis, 11 Ohio St. 455; Matter of Kimball, 155 N. Y. 62; Olmstead v. Olmstead, 190 N. Y. 458; Matter of Law, 56 App. Div. 454; Matter of Sands, 62 Misc. Rep. 146.) Neither the Ohio Probate Oourt records nor the exemplified copy of the Ohio will were competent evidence of a revocation of the New York will. (Matter of Goldsticker, 192 N. Y. 35; Matter of Wear, 131 App. Div. 875; Matter of Williams, 34 Misc. Rep. 748.)</p>

Also appeal from an order of said court entered July 8, 1915, denying a motion for a new trial. The facts, so far as material, are stated in the opinion.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered January 8,1914, 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. An automobile is not an inherently dangerous article. (Slater v. Thresher Co., 97 Minn. 305; Danforth v. Fisher, 75 N. H. 111; Cunningham v. Castle, 127 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The right of the plaintiff to maintain a pier at the foot of West Forty-third street of dimensions at least equal to those of the original pier granted by the city to Lindsley, is no longer open to question. (Knickerbocker Ice Co. v. F. S. St. Ry. Co., 176 N. Y. 408; Matter of Mayor, etc., 193 N. Y. 503; American Ice Co. v. City of New York, 193 N. Y. 573; Matter of Mayor, etc., 121 App.

September 30, 1914, which affirmed an order of Special Term granting a motion for a peremptory writ of mandamus to compel the board of supervisors of Onondaga county to convene and cause certain towns in that county to levy taxes for the maintenance and repair of highways. The facts, so far as material, are stated in the opinion. The duty to maintain the highways did not exist until after their completion and acceptance. (Cons.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered December 30, 1915, which affirmed an order of Special Term setting aside the service of the summons in this action. The following question was certified: “ Should service of the summons in this action upon the defendant be set aside ? ” The nature of the action and the facts, so far as material, are stated in the opinion.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 30,1915, which affirmed an order of Special Term granting a motion by defendants for ■ judgment dismissing the complaint on the pleadings as to the plaintiffs as committee óf the person and property of Herman H. Walter, an incompetent.

The facts, so far as material, are stated in the opinion. The acts of the relator did not amount to doing business within this state during the year in question. (People ex rel. Tower Co. v. Wells, 98 App. Div. 82; 182 N. Y. 553; Penn Collieries Co. v. McKeever, 183 N. Y. 98; McCoach v. Mine-hill Ry. Co., 228 U. S. 295; Zonne v. Minneapolis Syndicate, 220 U. S. 187; People ex rel. W. R. Co. v. Williams, 198 N. Y. 54; People ex rel.

MacDowell, deceased. The facts, so far as material, are stated in the opinion. If the purpose of the trust is charitable or benevolent within the statute it is valid.

The facts, so far as material, are. stated in the opinion. Where there is obscurity or uncertainty all the particulars in the description are to be taken into account in arriving at the intention, the particulars describing the location of the land, the quantity and its commonly known designation.

to compel the reinstatement, of the relator in the position of fifth grade accountant in the bureau of supplies in the department of education of the city of New York and denied said motion. This is an application by the relator for reinstatement in the position of fifth grade accountant in the bureau of supplies of the board of education of New York city, from which position, as he alleges, he was unlawfully removed.

<p>Negligence — street railroads — when street railway company liable for damages caused by collision of street car with automobile stalled close to its track — measure of duty of motorman of street car to avoid collision under such conditions.</p> <p>1. Negligence must be determined upon the facts as they would appear to the typically prudent and competent man and not upon the personal judgment of the man concerned.</p> <p>2. This action was brought to recover damages for injury to property sustained by reason of the alleged negligence of defendant, a street railroad corporation, in running into and overturning plaintiff’s automobile, which was stalled upon the track. Held, that the rule of law which should have been applied to the facts is, that if the motorman saw the automobile in close and dangerous proximity to the track, manifestly helpless there, and had time to stop the ear, and did not slow down so as to enable him to stop before hitting the automobile, but took the obvious chance of hitting it in running by, he was negligent as matter of law, and refusal to so charge in substance was error.</p>

<p>Ejectment —evidence—when field book entries made by a deceased surveyor are admissible in evidence—testimony of a witness who by aid of the deceased surveyor’s notes had run out boundary lines shown thereby and located a disputed corner of property in question—insufficient objection to such testimony.</p> <p>1. Field book entries made by a deceased surveyor for the purpose of a survey on which he was professionally employed, are admissible in evidence as being made in the discharge of professional duty.</p> <p>2. A surveyor testified in an action of ejectment that he had, with the aid of a copy of the field notes of a deceased surveyor, run the lines and located a disputed corner in accordance with plaintiff’s claim. After he had without objection testified that he had followed the courses as indicated by these notes, a general objection was made to “all that proof.” Held, that this objection and the exception thereto applied to further reference to the field notes and that-it was riot necessary to move to strike out the answer already given in order to raise the question of admissibility of such evidence. While, however, the objection was available to defendanl and was not waived by the subsequent admission of the field notes without further objection, it was insufficient to raise the question that the evidence based on the survey was hearsay as that point might have been obviated by laying a proper foundation for the testimony.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The contract and the supplemental contract between Curtis and the board of supervisors were, and each of them was, ultra vires, illegal and void. (Chemung Canal Bank v. Supervisors, 5 Den. 517; People ex rel. Tracy v. Green, 47 How. Pr. 382; Osterhoudt v. Rigney, 89 N. Y. 222; Supervisors v. Ellis, 59 N. Y. 620; People ex rel.

<p>Incompetent persons — committee of person and estate of incompetent — committee cannot lawfully take possession of his property until bond is filed — payment to committee before filing of bond does not protect payer if money is lost by fault or negligence of committee.</p> <p>1. Where an order appointing a committee of the person and estate of an incompetent provided, pursuant to the statute (Code Civ. Pro. § 2337), that the appointment should become executed or complete when the committee executed and filed the prescribed bond, the bond when filed does not relate back to and qualify the committee as such from the date of the order.</p> <p>2. When a bank, which held, as depository, moneys of an incompetent, paid them over to the committee before the bond was filed, and part thereof was misappropriated, the bank which made such payment is liable to the incompetent for the money so. misappropriated, and a substituted committee of the estate of such incompetent may maintain an action therefor. Before the prescribed bond was executed and filed the first committee had paid out and parted with the moneys, and hence it cannot be held that the moneys were received and held by her in trust, or in a fiduciary capacity, and passed by operation of law to her as committee when she became such by the execution and filing of the bond.</p>

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 court erred in directing a verdict, and in refusing to allow the case to go to the jury, because there was ample evidence showing that the additional work and materials claimed for were necessitated by changes and alterations of a minor character ordered by the engineer, and recovery therefor was authorized under the express terms of the contract.' (Shields v. City of New York, 84 App.

The nature of the action and the facts, so far as material, are stated in the opinion. A master is guilty of negligence in supplying to his servant a vicious and dangerous horse to work with. (McCready v. Stepp, 104 Mo.

<p>Witness—when party testifying as witness in his own behalf should be allowed to offer evidence of good reputation to refute impeaching evidence elicited upon his cross-examination.</p> <p>The plaintiff, called as a witness in his own behalf, on- his cross-examination testified that he had been convicted of the crime of forgery and sentenced to State prison for a term of years. He thereafter offered evidence of his general reputation in the community in which he lived. This was objected to as incompetent on the ground that his reputation had not been impeached except by cross-examination, and the testimony was excluded subject to exception. Held, error; that evidence of his good reputation should have been admitted.</p>

This is an action of ejectment. Both parties claim under one William Bragaw, who owned the lands in question in the year 1870. The plaintiffs claim as grantees under Bragaw by virtue of several mesne conveyances. One Charles H. Schorr was the owner in the plaintiffs’ chain of title in the year 1874. The defendants claim under a purchase-money mortgage which Bragaw took from his immediate grantee. In 1894 the executors of Bragaw began an action to foreclose the mortgage.

<p>Appeal from a judgment of the Ulster County Court rendered June 21, 1915, 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>The court erred in its rulings on the admission of evidence. (People v. Van Gaasbeck, 189 N. Y. 408; People v. Camorato, 133 App. Div. 260; People v. Smith, 172 N. Y. 211.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The failure of the defendant and his superintendent to provide a scaffold upon which to do the work in question constituted a defect in defendant’s “plant,” within the meaning of subdivision 1 of section 200 of the Labor Law. (Wiley v. Solvay Process Co., 215 N. Y. 584; Lipstein v. P. L. Society, 154 App. Div. 732; Cashmore v. Peerless Motor Car Co., 154 App.

<p>Contract — when a contract entered into in Cuba and valid there may be enforced in this state.</p> <p>A contract was entered into in Cuba between plaintiff and defendant whereby defendant was given an option to buy a concession for the construction of a railroad in that country. In this action, which is brought to recover for a failure to carry out its terms, it is claimed by defendant that a valid contract was not made under the law of that jurisdiction. The contract is good under our law, and, on examination of the law of Cuba, it appears that an action for the specific performance of this contract could not, while it remained in its present form, be maintained in the Cuban courts until the contract was converted into a public instrument. But if the defendant, after being cited to appear before a notary, refused to convert the contract into a public instrument, the plaintiff could maintain an action to compel him to authenticate it. Unless sufficient cause for refusal was shown, the execution of the contract as a public instrument would be decreed. No reason why its execution as such an instrument should be refused is apparent on the face of the option. Every element of a valid contract is disclosed in the writing. All that is lacking is a formality which the courts of Cuba had jurisdiction to supply. Held, that the law of Cuba affects the remedy only; that the law of this state follows the law of Cuba in recognition of the contract, but prescribes its own remedy and pursues its own procedure under which this action can be maintained.</p>

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered March 6, 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 Pennsylvania law relied upon by defendant is not a defense to the action. (D. & H. Canal Co. v. Carroll, 89 Penn.

The nature of the action and the facts, so far as material, are stated in the opinion. The York Manufacturing Company, by bringing an action against the Cayuga County Cold Storage and Warehouse Company for goods sold and delivered, prosecuting the same to judgment and making said judgment a lien on other property, thereby elected to pass and did pass the title to said refrigerating apparatus to the cold storage company. (Wright v. Pierce, 4 Hun, 351; Cooper v. Payne, 111 App.

The facts, so far as material, are stated in the opinion. The municipal civil service commission is without power to classify positions in the city service, according to the salary received, unless a specific name is given to each subdivision of a position and each subdivision is placed in a different grade. (People ex rel.

The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in allowing the plaintiff to amend the complaint. (Dennison v. Musgrave, 26 Misc. Rep. 871; Barnes v. Seligman, 55 Hun, 339; Beard v. Tilghman, 66 Hun,12; Rutty v. Consol. Fruit Jar Co., 52 Hun, 492; Ward v. Bronson, 126 App. Div. 421; Charlton v. Rose, 24 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The terms of the contract required the purchaser to pay seven-twelfths of the city tax for the year 1912. (Lathers v. Keough, 189 N. Y. 583.) At the time the contract of sale was signed the tax in question was a debt against the vendors personally and was also a lien on the land. (Matter of Babcock, 52 Hun, 142; Rundell v. Lakey, 40 N. Y. 513; Hagner v. Hall, 10 App.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 1, 1914, affirming a judgment in favor of plaintiff entered upon a verdict.</p> <p>The nature of the action and the facts, so far as material, are stated iii the opinion.</p> <p>The plaintiff adduced no proof of negligence on the part of the employer at common law. (Wangler v. Swift,, 90 N. Y. 38; Marks v. R. R. Co., 146 N. Y. 181; Buckley v. G. P. & R. M. Co., 113 N. Y. 543; Adams v. Post & McCord, 147 App. Div. 656; Davis v. Gas E. & P. Co., 148 App. Div. 791; Loughlin v. State, 105 N. Y. 159; Mullin v. Gas Co., 202 N. Y. 275; Perry v. Rogers, 157 N. Y. 251; Di Vito v. Crage, 165 N. Y. 378; Citrone v. O’Rourke, 188 N. Y. 339; Russell v. R. R. Co., 188 N. Y. 344; Mekki v. Holbrook, 168 App. Div. 719.) The proof in any event failed to establish the negligence of the employer, as distinguished from the negligence of the plaintiff and his fellow-workman, in respect of the rules formulated by the commissioner of labor. (Johnson v. Blaney, 198 N. Y. 312; Daly v. Brown, 167 N. Y. 381; Greif v. Ry. Co., 205 N. Y. 239; Slater v. Jewett, 85 N. Y. 61; Niles v. R. R. Co., 14 App. Div. 58; Shannon v. R. R. Co., 88 App. Div. 349; Anthony v. Leeret, 105 N. Y. 591; Larkin v. Light Co., 158 App. Div. 414; Smith v. R. R. Co., 88 Hun, 468; 153 N. Y. 664; Keefe v. R. R. Co., 109 App. Div. 180; 186 N. Y. 594; Doing v. R. R. Co., 151 N. Y. 579.)</p> <p>The proof at bar clearly establishes that defendant negligently omitted to inspect the room where plaintiff was placed at work after blasting therein, and that by reason of such omission the accident occurred. (Racine v. Morris, 201 N. Y. 240; Shields v. Pugh & Co., 122 App. Div. 586; Scott v. International Paper Co., 204 N. Y. 49; Caddy v. Interborough R. T. Co., 195 N. Y. 415; Armenti v. B. U. Gas Co., 157 App. Div. 276; Baccelli v. N. R. Stone Co., 133 App. Div. 449; Stewart v. Ferguson, 164 N. Y. 553; Griffin v. Flank, 132 App. Div. 334, 337; Koehler v. N. Y. Steam Co., 183 N. Y. 1; Simone v. Kirk, 173 N. Y. 7; McGuire v. Bell Telephone Co., 167 N. Y. 208; Byrne v. Eastman Co., 163 N. Y. 461; Eagan v. D. D., E. B. & B. R. R. Co., 12 App. Div. 556; Ada Coal Co. v. Linville, 153 S. W. Rep. 21; Reynolds v. New Century Mining Co., 133 Pac. Rep. 844.) The evidence at bar warranted the inference that the defendant was chargeable with negligence in failing to warn the plaintiff of the presence of the unexploded charge of dynamite and in assuring him that the old boring was not charged. (Mahoney v. C. L. Cement Co., 208 N. Y. 164; Simone v. Kirk, 173 N. Y. 7; Buckley v. Garden City Co., 127 App. Div. 52; Raab v. H. R. Tel. Co., 139 App. Div. 286; Welch v. Bath Iron Works, 98 Me. 361; Thrasher v. Emke, 159 S. W. Rep. 565.)</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered July 6, 1915, which denied a motion to dismiss an appeal by the state from a judgment of the Court of Claims.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered November 19, 1915, which suspended the appellant, an attorney, from practice for one year.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 4, 1915, affirming a judgment' in favor of plaintiff entered upon a decision of the Kings County Court at a Trial Term without a jury in an action to recover upon a forfeited bail bond. The questions on appeal were as to the sufficiency of the complaint and the propriety of allowing interest.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 3, 1915, which affirmed an order of Special Term revoking and canceling a liquor tax certificate.</p>

Appeal .from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered January 24, 1914, affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court at Special Term on a motion for judgment on the pleadings as amended at the trial.

The action is brought by the plaintiffs as stockholders of the Michigan Central Railroad Company, praying judgment that the agreement known as the “New York Central Lines Equipment Trust of 1913 ” and all leases of equipment executed and all trust certificates issued pursuant to the terms of such agreement be declared invalid, null, void and of no effect and be canceled, and that the defendants be enjoined from carrying out the agreement and any leases executed thereunder…

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 9, 1915, which reversed an order of Special Term granting plaintiff’s motion for judgment on the pleadings and overruling a demurrer to the complaint.

The only questions raised on this appeal are whether the award for damage parcel 1, amounting to $667.32, which is $332.68 less than the amount testified to by the city’s expert, is a proper and adequate compensation to the owner of the property for the part. taken and the consequential damages to the remainder, whether the commissioners of estimate were justified in making an award to the owner of damage parcel No. 1 for an amount less than the estimate of damage testified…

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 1, 1915, which reversed an order of Special Term denying a motion for an injunction pendente lite to restrain the superintendent of buildings of the borough of Manhattan from permitting the increase in height of a certain skysign. The following questions were certified: “1.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 9, 1915, which reversed an order of Special Term sustaining a demurrer to an affirmative defense set forth in the answer and overruled said demurrer.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered March 19, 1915, affirming an interlocutory judgment of Special Term in favor of plaintiff entered upon a decision of the court on trial at Special Term.

The grounds of appeal are that the indictment attached to the requisition by the governor of Massachusetts is formally defective in that it fails to specify “ where the relator did steal,” “in what state, county, country, or city the alleged offense was committed,” “in what form or manner, or by what means the alleged larceny was committed,” “whether the alleged offense was a felony or misdemeanor,” “of what county the said grand jury or jurors were acting for in the finding…

<p>Negligence — when question of contributory negligence for jury.</p> <p>Upon examination of the evidence in an action for personal injuries, held, that upon the facts proved the issue as to contributory negligence was for the jury.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 16, 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 while riding in a passenger elevator maintained by defendant and operated by his servant. The- question was as to whether the finding of negligence by the jury was supported by the evidence.</p>

Plaintiff, an employee of a contractor engaged in doing plumbing work in a building under alteration, was injured through the falling of a stairway under construction by another contractor.

The complaint alleged that plaintiff while in the employ of the defendant as a freight handler at the city of Buffalo was unloading a car placed by the side of and about three feet from defendant’s freight house in which work a skid furnished by the defendant to connect the car with the platform of the freight house was provided; that defendant’s superintendent neglected to order said skid safely secured, negligently directed plaintiff to assist in unloading freight without…

Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered July 26, 1915, affirming a judgment in favor of plaintiff entered upon a verdict. ■The motion was made upon the ground that the Court of Appeals had no jurisdiction to review the judgment appealed from, the affirmance by the Appellate Division having been unanimous and permission to appeal not having been obtained.

The question at issue was' whether, when by reason of lack of work or in the interests of economy, it is necessary to reduce the force of a department, volunteer firemen are entitled to preference in retention in employment over civilians who are not either Civil war veterans or Spanish war veterans or volunteer firemen.

Appeal in each of the above-entitled proceedings, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 11, 1916, affirming an order of Special Term in a proceeding, instituted under title 1 of chapter 23 of the Code of Civil Procedure, to condemn street easements of light, air and access required for additional elevated railway facilities in the city of New York.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 13, 1914, which affirmed an order of Special Term canceling and revoking a liquor tax certificate upon the ground that the owner permitted the premises to become disorderly and the resort of disorderly persons.</p>

Kearney, deceased. By paragraph 5 of his will the testator, after giving his sons, Matthew and John, and his daughter, Margaret, each a one-fourth part of his residuary estate, provided as to the remaining one-fourth part thereof as follows: “And the remaining one-fourth part thereof, if my said son William J. Kearney has entirely given up the habit of using intoxicating liquors, I give, devise and bequeath the said one-fourth part to my said son William J. Kearney, but in…

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 8, 1915, which affirmed a judgment of the Chautauqua County Court rendered upon a verdict convicting the defendant of the crime of grand larceny in the first degree and also affirmed an order of said court overruling a demurrer to the indictment.</p>

The question involved is the right of the city of Newburgh to permanently improve Grand street, one of its principal thoroughfares, by laying a modern pavement thereon. The charter of the city contains a provision in substance that after any street shall have been once graded according to the grade line fixed by order of the city council, the grade of that street shall not be changed except upon petition.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 3, 1912, affirming a judgment in favor of plaintiffs entered upon a decision of the court on trial at Special Term, which said judgment discharged a chattel mortgage as usurious and void.</p>

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 6, 1914, -affirming a determination of the Appellate Term which affirmed a judgment in favor of defendant entered upon a decision of the Municipal Court of the city of New York in an action to recover for goods sold and delivered. The facts upon which plaintiffs claim their right to recover are as follows: 1.

There are three principal questions involved in this appeal: First. Had the grade of Odell avenue ever been established prior to the proceedings in question? Second: Did the work done in raising the grade constitute a change of grade ? Third. What effect, if any, has chapter 623 of the Laws of 1906 upon the present action ?