Volume 22 — Bedell

The plaintiff recovered a judgment against the defendant for damages resulting to her property from an overflow of Onondaga creek, upon her allegations' that the • occurrence was chargeable to the neglect of the defendant to perform its duties, either assumed, or devolved upon it by law, with respect to the proper care and maintenance of the channel of the stream.

<p>Surrogate Has No Jurisdiction to Enforce Creditor’s Lien against Insurance' Moneys under Section 83, Domestic Relations Law —Code Civ. Pro. §§ 3473, 3481, 3596, 3713, 3731. A surrogate has only such jurisdiction as is expressly or by necessary implication conferred by statute. While the tendency of recent legislation has been to enlarge his powers, he has not yet been given the broad powers of a court of equity which are necessary to enforce a creditor's lien upon the proceeds of a policy of insurance issued on the life of a husband in which the wife was named as the beneficiary and the annual premium on which was in excess of $500, and to determine, in a proceeding by a creditor of the estate to compel her as executrix to account, whether as between her individually and the creditors of her deceased husband any part of such proceeds is chargeable with a lien in favor of his creditors under the Domestic Relations Law- (L. 1896, cli> 373, § 33). The Code of Civil Procedure (§§ 3473, 3481, 3596, 3713, .3731) confers no such jurisdiction either expressly or impliedly; the amount of insurance purchased by the excess of premiums does not belong to the husband in his lifetime and forms no part of his estate after his death even as to creditors; the premiums paid do not constitute a debt against his wife in favor of himself or his estate; the proceeds are not assets and cannot be included in the inventory; they are liable “ primarily” for his debts solely by force of the statute; they constitute a separate fund, devoted exclusively to the payment of the deficiency arising after all the assets of the estate have been applied upon the debts, while the surplus, if any, is to be returned to the widow. The phrase “property alleged to belong to the estate,” as used in section 2731 of the Code, means property which is “ deemed assets ” as defined in section 2712, and which may be inventoried under section 2714. An allegation in the petition, therefore, that the insurance moneys were property of the estate, gives the surrogate no jurisdiction to try the question of title or enforce the lien any more than if a similar allegation had been made with reference to the title to real estate or other matters over which the surrogate has no jurisdiction.</p> <p>2. Procedure to Enforce Lien. The orderly course of procedure in such a case is by a representative action to establish and enforce the lien after the assets of the estate have been exhausted and the amount required to pay the remainder of the husband’s debts has been established by a surrogate’s .decree, and in such an action distribution may be made and circuity thus avoided.</p>

The following questions were certified: First. Is there defect of parties defendant, as alleged in the defendants’ demurrers ? Second. Have causes of action been improperly united, as alleged in defendants’ demurrers ? Third. 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.

Myer, deceased. This proceeding was instituted in the Surrogate’s Court of Seneca county to procure the revocation of the probate of the will of Mary A. Myer, deceased, upon allegations that at the time of the execution thereof she was not mentally capable of making a will and that its execution was procured by the undue influence of her son, William H. Myer. The petitioners are Mary L. C. Ming, the only daughter of testatrix, and John Y. Myer, her youngest son.

John A. Sherman, formerly of the city of Watertown, died on the 25th of March, 1882, when he was about seventy-five years of age. He left a last will and testament, dated January 1st, 1877, executed on the 20tli of April following and admitted to probate on the 10th of April, 1882. The plaintiff is his legal representative. He left him surviving his widow, Julia Ann, who, after re-marrying, died on the 13th of October, 1901, in the ninety-fifth year of her age.

<p>Tenancy by Curtesy. An estate by the curtesy does not attach to property conveyed to a wife subject to the use and occupation of another during life, where she was never in actual possession o£ the property and she died before the termination of the life estate.</p>

<p>Fire Insurance—No Recovery for Loss of Property Held as Bailee Where the Latter Is Not Responsible to Owner. After insuring as the absolute owner a stock of glass then on hand, under a policy covering “his own or held by him in trust, or sold but not delivered, for which he may be held liable,” the insured sold and delivered the glass, agreeing also that all glass to be manufactured by it within a specified time should become the property of the vendee as soon as manufactured, and should be subject to the latter’s orders as to shipment; in the meantime it should be stored in the warehouses of the insured, which were leased to the vendee for that purpose; the insured assumed the responsibility for any loss or damage except “ loss by Are,” and “said glass” was to be insured by the vendee, the former, however, agreeing to pay the premiums; thereafter the property was destroyed by Are. In an action upon the policy by an assignee of the insured, held, that the vendee was vested with the title and entire insurable interest in the property in case of loss by Are, and that it was its duty to take out the policy in its name, the insured paying the premiums; that the fact that the latter was the custodian or caretaker of the property did not establish that it was held “in trust” within the meaning of the policy, for the reason that those words apply only to those cases of bailment where the bailee is responsible to the owner, while here the insured was expressly relieved from any responsibility in case of Are, and, therefore, the plaintiff could not recover.</p>

In February, 1902, the president of the Metropolitan Street Railway Company communicated in writing to the stockholders of that corporation a plan for providing money (approximately $23,000,000) to pay its unfunded debt incurred in the purchase of stock of the Third Avenue Railroad Company and to defray the expense of extending its electrical system to eighty miles of railroad lines still operated by horsepower.

Evidence — Erroneous Exclusion on Cross-examination of Questions Affecting Credibility of Witnesses.

The facts, so far as material, are stated in the opinion. The writ of prohibition should not have issued in this case. Relator’s proper remedy was to havé appeared specially before the justice on the return day of the summons* and' object to the jurisdiction of the court, and move to dismiss the action. If relator was aggrieved by the decision thereon, he had ample redress by appeal.

This action was brought upon a standard policy of fire-insurance, issued by the defendant to the plaintiff on the 8th of September, 1903, in which the amount of- insurance and the subject of the risk were described as follows : “ $100 on two story, shingled roof, frame building, with additions., foundations and all permanent fixtures while occupied as a private family residence; $450 on barn Mo. 1 on diagram, including sheds and additions attached; $1,000 on farm produce and…

The facts, so far as material, are stated in the opinion. The statutory oath required by the provisions of section 2369 of the Code may be waived by acts of the parties as well as by written consent. (Day v. Hammond, 57 N. Y. 479; Howard v. Sexton, 4 N. Y. 157; Matter of N. Y., W. S. & B. R. R. Co., 35 Hun, 478 ; Wassum v. Feeney, 121 Mass. 94; Johns v. Hodges, 45 Am.

The nature of the action and the facts, so far as material, are stated in the opinion. The answer is sufficient in ¡aw to raise an issue of fact. (Crosley v. Kobb, 22 Wkly. Dig. 570; 3 How. Pr. [N. S.] 37; Varnum v. Hart, 47 Hun, 188; Avery v. N. Y. C. R. R. Co., 29 N. Y. S. R. 918 ; Williams v. Lindblom, 68 Hun, 174; Lyth v. Green,. 21 App. Div. 300; Melcher v. Kreiser, 28 App. Div. 362; Calkins v. Bolton, 98 N. Y. 511; Bayliss v. Stimson, 110 N. Y. 621; People v. N. Ry.

The nature of the action and the facts, so far as material, are stated in the opinion. The relationship of pledgee and pledgor’ existed between plaintiffs and the defendant.

Appeal in each of the above-entitled proceedings from an order of the Appellate Division of the Supreme Court in the second judicial department, entered FTovember 29,1905, which reversed an order of Special Term quashing a writ of habeas corpus and directing that the relators be discharged from the custody of the defendant. The facts, so far as material, are stated in the opinion.

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

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff failed to show his freedom from contributory negligence, and the motion to dismiss made at the end of the plaintiff’s case and again at the end of the entire case should have been granted. (Weiss v. M. S. R. Co., 33 App. Div. 221; Lynch v. T. A. R. R. Co., 88 App. Div. 604; Thompson v. M. S. Ry. Co., 89 N. Y. 10; Little v. T. A. R. R. Co., 83 App. Div. 330; John v. U. Ry.

The nature of the action and the facts, so far as material, are stated in the opinion. The facts alleged in the complaint and admitted by the answer and the facts expressly found by the trial court are before the Court of Appeals, and this court has the power to review all questions of law arising upon the facts so admitted in the pleadings, taken in connection with the facts so found.

<p>Appeal — Question ■ of Pact. An affirmance by the Appellate Division of a judgment entered upon a verdict dismissing a complaint in an action to recover for services in procuring a tenant for defendant’s property, upon the ground that the defendant was entitled to a dismissal as a matter of law, sustained, there being evidence from which the jury might have found as a matter of fact that the parties had never agreed upon the terms of a lease.</p>

the Appellate Division of the Supreme Court iu the second judicial department, entered .December 28, 1904, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. The nature of the action and the facts, so far as material, are stated in the opinion.

<p>1. Measure of Damages — Action to Recover for False Representations Made to Induce Purchase of Real Property. The measure of damages, in an action brought by a purchaser of real property to recover for alleged false representations, as to the rents received from part of the premises, made by the vendors to induce him to purchase the property, is the difference between the market value of the premises if leased according to the representation and their actual market value.</p> <p>'2. Same—Evidence. As bearing upon such issue, expert evidence is competent to prove the market value of the property, if the part in question had been leased for the rent represented by the defendant, since there is no way to prove the damages sustained by plaintiff except by starting with the fee value of the property if leased according to the representation; but evidence as to the market value, based upon the rent actually received by the vendors for the part in question, is incompetent, where such rent depended, not upon the market value of the whole property, but upon special considerations relating to the part in question, so that such rent cannot be made the standard of the actual value of the entire property.</p> <p>3. Same—Erroneous Exclusion of Evidence Tending to Show That False Representation Caused Mo Damage. The exclusion of questions, asked expert witnesses for defendant, regarding the rental value of the part of the premises in question and tending to show that the rental value thereof exceeded or was equal to the representation, constitutes reversible error; since false representations do not warrant the recovery of damages unless they cause pecuniary injury, and a misrepresentation that the premises were leased at a certain rate could result in no damage, if the actual rental value equalled or exceeded that rate.</p>

The nature of the action and the facts) so far as material, are stated in the opinion. The trial court was not only justified in finding, but, upon the pleadings and evidence, was required to find that the property in Hatch’s possession was covered by the plaintiff’s mortgage.

judgment entered upon a decision of the court at Special Term in an action to partition and remove a cloud on the title of certain real property, and also affirming an interlocutory judgment therein and an order denying a motion for a new trial. 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 judgment in the City Court action is not a bar to the cause of action set forth in the complaint herein. (Richmond v. D. & S. C. R. R. Co., 33 Iowa, 422 ; Mixer v. Williams, 17 Vt. 457 ; Johnson v. Allen, 78 Ala. 387; Simpson v. Crippin, L. P. [8 Q. B.] 14; Freeth v. Burr, L. R. [9 C. P.] 208; M., etc., K. Co. v. Naylor, L. R. [9 App.

The facts, so far as material, are stated in the opinion. Any entrance to a building occupied exclusively as a dwelling, if within 200 feet of the saloon entrance, must be included in the application whether it is a back, side or front entrance, or whether it leads to the street or yard or whether it is separated from the saloon by a fence or wall.

It appears that the defendant was duly incorporated under the Business Corporations Law, for the manufacture and sale of clothing, in 1895, with a capital stock of $200,000, divided into 2,000 shares; 500 shares($50,000) being preferred stock, and 1,500 shares ($150,000) being common stock; each share being of the par value of $100.

The relator is a veteran, who, after four years of service as a soldier in the Civil war, on the 29th of October, 1866, was appointed a patrolman in the police force of the city of Hew York. In 1869 he was promoted to the position of rounds-man and in 1876 to that of sergeant.

The facts, so far as material, are stated in the opinion. Under the Constitution of the United States neither the relator’s imported goods in original and unbroken packages upon which duties had been paid, nor the proceeds of the sales of said goods by the importer in such packages, said proceeds being merely collected here and transmitted abroad, after deducting duties and expenses, were liable to taxation by the city of New York.

<p>1. Transfer Tax—.When Testator Stood “in the Mutually Acknowledged Relation of a Parent ” to a Legatee, So That the Latter Is Entitled to Exemption under the Statute (Tax Law [L. 1896, Oh. 908], § 221, as Amd. by L. 1898, Ch. 88, and L. 1901, Oh. 458). Where it appears upon the appraisal of the estate of a testator under the statute relating to taxable transfers of property, that a legatee of the testator, when a child about six years of age, was taken, upon her mother’s death, from the home of her father to the home of her aunt, who was the wife of testator, where she continued to live as a member of his family until his death, a period of over thirty years, and that during her infancy she was supported and maintained at the expense of the testator and was subject exclusively to his control and that of his wife, the father in no respect contributing to her support nor exercising any direction over her, it is properly held that such legatee sustained to the testator the relation of a “ child to whom any such decedent ® * for not less than ten years prior to such transfer stood in the mutually acknowledged relation of a parent, provided, however, such relation began at or before the child’s fifteenth birthday and was continuous for said ten years thereafter” (Tax Law [L. 1896, ch. 908], § 221, as amd. by L. 1898, ch. 88, and L. 1901, ch. 458), so that her legacy is taxable only at the rate of one per cent on the excess above §10,000; the fact that such legatee did not address her uncle and aunt as father and mother, nor they call her daughter, is of slight, if of any, importance, since being the niece of the testator’s wife, it was more natural that she should continue to call them uncle and aunt than that she should adopt a new term.</p> <p>2. Same — Evidence. The fact that, when such legatee, upon the death of her father, became entitled to a legacy under her grandfather’s will, the testator received the legacy as her guardian and upon her arriving at age turned it over to her without accounting for the income thereof received by him, is immaterial where the legatee had been thirteen years in the testator’s family, supported wholly' at his expense, before she had any property whatever and, after the receipt of the legacy, the testator had presumably used the income to give such legatee greater educational advantages than he had previously felt able to afford, since a father might have done the same thing, even if it be assumed that without authority from some court it would have been unjustified.</p>

The facts, so far as material, are stated in the opinion. The deputy commissioner erroneously took the evidence of one Louis A. Smith, a witness against the relator, without swearing the witness on this charge. (People ex rel. Kasschau v. Police Board, 155 N. Y. 40; People ex rel. Somerville v. Roosevelt, 156 N. Y. 692; People ex rel. Grogan v. York, 166 N. Y. 582 : People ex rel. Hart v. York, 169 N. Y. 452 ; People ex rel.

The trial court found that on the 10th of June, 1890, the defendants sold to the plaintiff 37 bales of Sumatra tobacco at $2.25 a pound, including estimated duty, pursuant to a written contract made for and in behalf of the defendants by their duly authorized brokers, of which the following is a copy : “ Mew York, June 10/90. “ Sold to M. & E. Solomon Tob.

<p>Contract of Sale—Waiver. Where by the terms of a contract for the sale of ten carloads of flour the vendor agreed to ship the same during the month of November, but in fact shipped but three carloads during that month, six carloads of the remainder being shipped during December and one in January, in an action by the vendor to recover damages caused by the refusal of the vendees to accept the December and January shipments, evidence that during the latter part of November the agent of the vendees in a conversation with the agent of the vendor requested that the latter write to hi's principal and ascertain “if it would suit him just as well to have that flour distributed through December as to have it all come the latter part of the month,” and upon the vendor’s agent consenting to so write, further said, “ string it along through December,” and that during a subsequent conversation between them the vendees’ agent asked if the vendor had been written to with reference to distributing their December flour, to which the vendor’s agent replied that he thought they had written, together with evidence that the shipments were actually strung along through December as suggested, that an invoice was sent to the vendees as each car was shipped, sight drafts drawn upon them for the purchase price and they were informed of the arrival of the cars at their destination, is sufficient to support a finding that as to the December shipments the provision of the contract requiring delivery in November had been waived, -where, so far as appears, the invoices were retained by the vendees without objection and no intention of rejecting the goods was manifested by them until the middle of January.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The false statements in question being warranties, knowledge on the part of any agent of the company will not aid plaintiff to recover. (Foote v. A. L. Ins. Co., 61 N. Y. 571; Cushman v. U. S. L. Ins. Co., 63 N. Y. 404; Schane v. M. L. Ins. Co., 76 App. Div. 271; Barteau v. P. L. Ins.

The facts, so far as material, are stated in the opinion. The award of the commissioners was inadequate. The commissioners should have awarded the defendant the value of the structure placed upon his lands by the plaintiff, without any right or authority, in addition to the damages sustained by him in the taking of his land and water rights. (Reeves on Real Prop. § 47 ; Matter of N. Y., W. S. & B. R. R. Co., 37 Hun, 317; McAllister v. N. Ins.

by the court on trial at Special Term. The nature of the action and the facts, so far as material, are stated in the opinion. The decision of the trial court and the Appellate Division, “ that in exacting and receiving from the plaintiff an unlawful rate of fare, the defendant acted under a mistake of law not amounting to gross negligence, and was, therefore, not liable for the penalty,” was error.

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

Appeal by Margaret A. O’Donaghue from an order of the Appellate Division of the Supreme Court in the first judicial department, entered October 22, 1903, reversing a judgment in her favor entered upon a verdict directed by the court and granting a new trial.

the Supreme Court in the fourth judicial department, entered December 13, 1904, affirming a judgment of the Onondaga County Court which affirmed a judgment of the Municipal Court of the city of Syracuse in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial. 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 judgment must be reversed for the reason that it is inconsistent with the findings made in the decision in favor of the plaintiff’s contention. (Schwinger v. Raymond, 83 N. Y. 192; Wahl v. Barnum, 116 N. Y. 87; Kelly v. Leggett, 122 N. Y. 87; T. Nat.

The action was brought to recover damages for the alleged negligent killing of the plaintiff’s intestate, a laborer in the employ of the defendant. The defendant is engaged in the manufacture of brick within, or very near, the northerly boundary of the city of Troy. The accident which caused intestate’s death happened at about 2 or 3 o’clock in the afternoon of June 4, 1904.

This action was brought by a married woman during the lifetime of her husband to redeem lands from a judicial sale upon the ground that she was not a party to the action in which the decree to sell was made, although she had an inchoate right of dower in the premises sold.

The plaintiff and Elizabeth E. Dowd, being teachers duly licensed to teach in the common schools of this state, entered into contracts with the board of trustees of school district Mo. 9, in the town… Held: however, that the plaintiff and her assignor were not entitled to recover for any services rendered during the three weeks in which they continued to teach after the decision of the superintendent had been brought to their attention.

On the 8th of June, 1905, the relator was arrested under a warrant issued by a justice of the Court of Special Sessions of the city of Hew York, charging him with the commission of a misdemeanor in that on the 7th of June, 1905, at the city of Hew York, he violated chapter 241 of the Laws of 1905 “ by the sale and delivery of certain shares of stock of certain railroad corporations without making any bill or memorandum of such sale, or affixing any stamp or stamps to such a…

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered October 11, 1905, which affirmed an order of Special Term adjudging the defendant guilty of contempt of court and punishing him therefor. The questions certified and 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 first judicial department, entered January 30, 1906, which affirmed an interlocutory judgment of Special Term overruling a demurrer to the complaint. 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.

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 4, 1905, affirming a judgment in favor of plaintiff entered upon the report of a referee. The actions were tried together by consent and the evidence is the same in both.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered February 1, 1906, which reversed an order of Special Term en joining pendente lite a special election to fill an alleged vacancy in the office of alderman of the second ward of the city of Yonkers.. The following questions were certified: “1. Is chapter 501 of the Laws of 1905 constitutional ? “2.

The nature of the action and the facts, so far as material, are stated in the opinion. The complaint should have been dismissed. (Thaule v. Krekeler, 81 N. Y. .428; Besson v. Southard, 10 N. Y. 236; Burns v. Erben, 40 N. Y. 463; Heyne v. Blair, 62 N. Y. 19; Bankell v. Weinacht, 99 App. Div. 316; Burt v. Smith, 181 N. Y. 1; Beacon v. Town, 4 Cush. 328 ; Carle v. Ayers, 53 N. Y. 17.) There was no proof of malice.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 12, 1905, which dismissed a writ of certiorari and affirmed the proceedings of the defendant in dismissing the relator-from the police force of the city of New York.</p>

in the second judicial department, entered December 29, 1905, which reversed an order of Special Term confirming the report of a referee in a proceeding to establish a lien upon a vessel under section 3419 et seq. of the Code of Civil Procedure and dismissed the proceeding.