Volume 23 — New York Miscellaneous Reports

Cebtiobabt to review the action of the board of Assessors .of the city of Albany, in assessing the real estate belongling to the Young Men’s Association of Albany, and. known as Harmanus-Bleecker .Hall.

<p>Motion for a retaxation of costs.</p>

The petitioner has sued out- the writ of habeas corpus, claiming to be illegally detained by the sheriff of Kings county. The sheriff makes return that he has the petitioner under a warrant of commitment by Jacob Brenner, Esq., a magistrate of the city of New York in the borough of Brooklyn.

<p>Injunction pendente lite — Punishment for contempt, pending an appeal.</p> <p>Quaere, whether pending an appeal from an order of injunction pendente lite, a violation of the order can, in the second judicial de- ' partment, be punished as a contempt? A discussion of the question when a special term of that department would be justified in punishing for a contempt.</p>

<p>1. Municipal corporations — Spoliation of city funds — A contract . ... increasing the value of property to be taken by á city, —</p> <p>Semble, that a. contract by which it is proposed that a city shall take water from a private corporation, for three years, at fixed prices, and shall then acquire its. franchise and plant is illegal, as the effect of the contract will be to enhance the value of the property- of the- corporation at the time when the city shall take it.</p> <p>2. Same — When competitive bidding is impossible — Determination of' city official. "</p> <p>Although a city charter; requires an expenditure, exceeding $1,000, to be made under a contract-let upon sealed bids made on ten days’ public notice, the rule does' not apply where there' is only one possible bidder; and the court- has power, at the ¡instance of a taxpayer, to inquire whether the city official, having the power to determine' whether there can be more than one possible bidder,- has made that determination and this, although the official is not charged with' fraud of breach of his official trust.</p>

<p>Action in equity, to set aside and restrain the collection of an assessment upon plaintiff’s lands for a local improvement.</p>

<p>Action for an injunction.</p>

In this action recovery is sought against the above-named defendant as maker and indorser of a certain promissory note. After the -action was commenced the note in question was taken up by one Grossman, another indorser, and the action is now really being prosecuted by him in the name of the bank.

<p>{Pleading — 'Services — Denial upon information and belief.</p> <p>A denial, upon information and belief, is proper in an action for services and particularly, in a case, where the claim is made that the defendant was not in a suitable mental condition to have made the contract claimed by the plaintiff.</p>

Motion to vacate an. order directing an examination, at the instance of said banking company of said Van Antwerp as an expected party defendant to an action hereafter to be brought.

<p>"Contract to procure a woman a husband, upon a consideration payable from the fruits of the marriage — {Right of defrauded husband to restoration.</p> <p>Proof, made in an action brought" to procure the restoration of property, tending to show that, after the defendant had entered into a secret marriage brokerage contract with" his cousin, payable from the fruits of the marriage, he induced the plaintiff, who 'was an intimate friend, to marry the cousin; that the plaintiff thereupon gave her certain money and deeded her certain .property; that she thereafter gave the defendant the money and mortgaged to him the property in accordance with her prior agreement with .him, entitles the plaintiff to maintain the action, as the contract of the defendant is against public policy and the plaintiff has been fraudulently deprived of his property by an immoral and illegal contract, having, that result as its expressed object.</p>

Lewis, Esq., justice of the peace of the city of Auburn, August 3, 1897,_in favor of respondent, and against appellant for $7.70 damages and$4.30 costs.

<p>Motion to" change the place of trial from the county of Pensselaer to the county of Albany.</p>

Motion by the village of LeRoy to vacate and set aside certain proceedings heretofore had in this court, for the purpose of acquiring title to certain lands in the village of LeRoy, together with the gas generators, gas reservoir and other property belonging to the LeRoy Gas Light Company, together with the franchises, system, privileges and property of said company, by condemnation.

<p>Motion by the relator for a peremptory writ of mandamus.</p>

These two suits are brought to enjoin defendant from using two alleged trade marks of the plaintiff. The plaintiff was incorporated in 1886, and has ever since been manufacturing in the township of Kirkland, N. Y., near the village of Clinton, in the said town, a red pigment for coloring mortar, brick, tile and ’all clay products. It makes such pigment out of iron ore which it mines in the same place.

<p>Trial of an action of ejectment without a jury.</p>

<p>1. Costs — Taxation.</p> <p>Where an order of the Appellate Division grants specific motion costs, no taxation is necessary; but Where it grants costs to be taxed, they are taxable by the clerk of the Supreme Court.</p> <p>2. Same — Effect of a failure to pay motion costs of an appeal.</p> <p>Semble, that the failure of the plaintiff to pay, in ten days from the service of a copy of the order, costs imposed by the Appellate Division upon its reversal of an order denying the defendant’s motion for a commission to take testimony, operates, under section 779 of the Code of Civil Procedure, as la stay of the plaintiff’s proceedings; but, in any event, the Supreme Ctourt will not settle the interrogatories and cross-interrogatories until a disposition has been made of the question of costs.</p>

<p>Motion to cancel a notice of Us pendens filed in an action to fore- ' close a mechanic’s lien.</p>

<p>Motion for alimony.</p>

<p>Motion to set 'aside a referee’s report and the judgment entered thereon.</p>

<p>Benevolent societies — By-laws as a part of the contract — Strict construction.</p> <p>Where the certificate of the incorporation'(Laws of 1875, chap. 267) of a benevolent society refers to its laws and rules and a member upon joining it, agrees in writing to conform .-to them, its by-laws become a part of the contract; and neither he, nor bis estate, can subsequently be relieved from the result of a by-law, depriving him of sick' benefits by its provisions that there shall first be deducted from an assessment levied, and which produces less than $1,000, one-third thereof, as the contribution of the member to the reserve fund of the society. . •</p>

<p>1. Replevin — Title by delivery of the bill of lading upon a discount of a draft against consigned goods.</p> <p>The delivery of a bill of lading of goods to a bank by a consignor, as collateral, 'upon its discount of his draft upon the consignee, vests in the bank a title to the goods which can be divested only by the payment of the draft , .</p> <p>2. Same — Seizure under attachments against consignors — Measure of damages.</p> <p>Where such a draft has been neither accepted nor paid, third persons who intercept and levy upon the goods under attachments against the consignors, and who subsequently procure the sale of the goods by the sheriff and also .indemnify him in the premises! are liable to the bank in an action of replevin and may properly be charged therein with the 'amount which the goods brought at the sheriff's sale, which was well attended by dealers.</p>

<p>Charitable hospital — A pay patient burned by a hot-water bag — Duty of the hospital in selecting nurses.</p> <p>The proof, made in an action, tended to show that the defendant was a hospital conducted for public charitable purposes and that, although accepting pay patients, it used all such revenues wholly for the support of the institution, for which purpose they were insufficient. The plaintiff, a pay patient, was severely burned upon her leg, because, after an operation performed upon her and while she was still under the influence of anáesthetics, an under-nurse neglected to remove from the leg an uncovered hot-water bag. This nurse had been a probationary appointee and had still about sixteen months to serve in the hospital before she would .be entitled to-a diploma. The superintendent of nurses was entirely competent. The defendant had a verdict.</p> <p>Held, that notwithstanding the fact that the plaintiff was a pay patient, the action was not one upon contract, but sounded in tort.</p> <p>That, the defendant was only liable for negligence in its original selection of servants, was not liable for the subsequent -act of a servant, unless knowledge of her unfitness had been brought home to the corporation and that this rule was alike applicable to all patients whether they paid or not</p> <p>Quaere, whether a charitable hospital is liable, in the matter of selecting nurses, beyond the selection of the head nurse.</p>

<p>Demurrer to a complaint on the ground of a failure to state facts sufficient to constitute a cause of action.</p>

<p>Action by highway commissioners to compel the removal of obstructions or encroachments upon a highway.</p>

<p>. Appeal from judgment of the General Term of the City Court of the city of Hew York.</p>

<p>Guaranty oí collection — Effect of a condition, “ after all means have been exhausted against ” the lessee.</p> <p>An instrument by the terms of which a guarantor promises to pay all damages which may arise from a breach of the covenants of a lease, without notice of default, “ after all means have been exhausted against ” the lessee, is a guaranty of collection; and the condition of the guaranty is satisfied where the lessor recovers judgment upon a liability to him ,of the lessee, and issues an execution thereon which is returned unsatisfied; it being unnecessary that the lessor should proceed to supplementary proceedings.</p>

<p>Appeal from a judgment of the General Term of the City Court, affirming a judgment of the Trial Term in favor of defendants.</p>

<p>Appeal by the defendants from a judgment of (the General Term of. the City Court of Hew York, affirming a judgment entered in plaintiffs’ favor upon a verdict directed by -the court at Trial Term. Action to recover balance of $1,473.87, claimed by plaintiffs to be due for merchandise sold and delivered to the defendants.</p>

<p>Election. o£ landlord, excusing tenants who have held over.</p> <p>Although (tenants hold over the term two days, the subsequent action of the landlords In letting the premises, about fifteen days later, to a new tenant for a period! of nearly a year, is an election which precludes them from subsequently recovering rent of the original tenants for an ensuing year.</p>

<p>Evidence — Failure to produce . an original document — Secondary evidence.</p> <p>Where a person seeking to recover a loss, evidenced only by an insurance “ binder,” asks to introduce an alleged copy of the “ binder,” he must show that he has in good faith made every reasonable effort to discover [amd produce the original; and those who presumptively would have possession of the paper,.as well as those who at any time have seen it, should be particularly examined on the subject.</p>

<p>District courts of New York — Loss of jurisdiction, by a failure to render judgment in time.</p> <p>Where the record shows that a trial justice, of a District Court in the city of New York, failed to render judgment within eight days after the trial and submission to him of the case, the judgment must be reversed, as he has lost jurisdiction. (Laws of 1882, chap. 410, § 1384.)</p>

<p>Appeal from a judgment of the Municipal Court of the City of Mew York, borough of Manhattan, eighth- district, dismissing the complaint.</p>

<p>Appeal from a judgment iof the District Court of tire City of Hew York for the sixth judicial district, rendered in favor of the plaintiff.</p>

<p>Appeae from a judgment of the District Court of the City of New York for the second judicial district, in favor of the plaintiff.</p>

<p>1.. Lease —When, the 'fire clause alone measures the liability of the parties.— Inapplicability of Laws of 1860, chapter 345.</p> <p>In an action brought to recover a deposit, made by. a third person to secure the performance of the conditions of a lease, it appeared that the fire clause of the lease provided “ The tenant shall, in .case of fire, give immediate notice thereof to the landlord, who shall there-. upon cause the damage t¡o be repaired forthwith; hut if the premises be so damaged that the landlord shall decide to rebuild, the term shall cease, and the accrued rent he paid up to the time of the fire.” Held, that the covenant measured the liability of the parties to the lease, and that chapter 345 of the Laws of 18601 did not apply.</p> <p>2. Same — Abandonment."</p> <p>It further appeared that the fire, which was not the fault of the tenant, rendered the premises untenantable and that, when nine days later the landlord had made no attempt to repair, the tenant abandoned.</p> <p>Held, that he was justified in abandoning and that the plaintiff was entitled to the return of - Ms deposit.</p>

<p>Appeal — Affirmance on a conflict o£ evidence.</p> <p>Where the issue in á case Is, whether a father, as agent for his sons, ordered certain goods, or whether he merely ordered samples from which selections could subsequently be made, "and the evidence is conflicting and depends mainly upon the testimony of one witness upon each side, the decision of the trial justice should be affirmed.</p>

<p>Appeal from -a judgment of the First Judicial District Court.</p>

<p>Appeal from a judgment of the Third Judicial ¡District Court, in favor of the plaintiff.</p>

<p>Evidence — An offer of compromise is not a proper basis of value. •</p> <p>An offer to compromise a,claim for the use of trucks and wagons is not a proper element in reaching a conclusion as to the fair value of the use. ■, ■</p>

<p>Benefit societies — Prima facie evidence of. liability.</p> <p>Proof made in an action, brought to recover funeral benefits from a local union, that lit neglected to notify the member, as required by the by-laws, that he was' In arrears for two months’ dues', that the moneys, nonpayment of which was alleged t¡o exclude him from' being “ in good standing,” had been deducted by it from his sick benefit money and -that the president of the union added to la, guaranty of l his funeral expenses the words “ Late brother in. full benefit,” is sufficient to make out a prima facie case for a recovery.</p>

<p>Appeal from a judgment of the Eighth Judicial District Court.</p>

Appeal by the defendant from a judgment of the District Court in the City of Hew York, for the ninth judicial district,rendered by the justices thereof, without a jury, in favor of the plaintiff. The opinion states the nature of the action and the material facts.

Appeal by the defendant from a judgment of the District Court in the City of New York, for the fourth judicial district rendered in favor of the plaintiffs for $150 and costs, by the justice thereof, without a jury. The nature of the ¡action and the material facts are stated in the ’ opinion.

Appeal by the defendant from a judgment of the District Court in the. City of New York, for the ninth judicial district, rendered •in favor of the plaintiffs hy the justice thereof, without a jury. The nature of the action and the- material facts are stated in the opinion.

Appeal by the plaintiff from a judgment of the District Court in the City of Hew York, for the fourth judicial district, rendered by ¡the acting justice of such court, without a jury, dismissing the ;action without costs. The opinión states the nature of the action and the material facts.

Appeal by the plaintiff from a judgment of the District Court in the City of New York, for the fifth judicial district, rendered in her -favor., by direction of the justice, for the sum ¡of $5.

Appeal by the defendant from a judgment of the District Court in the City of New York, for the ninth judicial district, rendered in favor of the plaintiffs by the justice thereof, without a jury. The nature of the action and the material facts are stated in the opinion.

Appeal by the defendant from a judgment of the Municipal Court of thé City of New York, borought of Manhattan,' first district, rendered in favor of the plaintiff, by the presiding justice, without a jury. Action for a conversion of chattels. The opinion states the material facts.

Appeal by the defendant from a judgment of the District Court in the City of Hew York, for the eleventh judicial district, rendered in favor of the plaintiff by the justice thereof, without a jury. The nature of the action and the material facts, are stated in the opinion.

Action for libel,_ -Hotion on the minutes to set aside a verdict for the plaintiff. ■ The plaintiff was employed by the Board of Charities and Correction to receive and care' for all infant waifs abandoned,in the streets or public places of 'the city of Brooklyn, and was called City Nurse. The libel accused her of mistreating and neglecting' them. .

<p>1. Duress— Pleading — Proximate cause i— Acquiescence.</p> <p>Duress is an affirmative defense which must be pleaded.</p> <p>Where it is claimed that a mother-in-law was induced to execute, as surety, a mortgage by a menace of harm to her son-in-law, the threat and its consequence must be apparent; and her acquiescence, equivalent to ratification, will prevent her subsequent repudiation.</p> <p>2. Mistake — Reformation — Proof.</p> <p>A mortgagor who seeks to reform a mortgage, as given by her mistake, and the defendant’s fraud, must establish by the clearest evidence that the mistake was mutual, that a different agreement was intended by the parties, and that fraud has been exercised.</p> <p>3. Surety — When not exonerated.</p> <p>A mortgagor, standing as surety, is not exonerated by the fact that the creditor permitted the principal to resume possession of securities which he had deposited with the creditor, where it appears ¡that the principal acquired such possession through .an accomplice and,' by fraud and against or without the consent of the creditor.</p>

<p>Action to quiet title — Estoppel by acquiescence — Possession by tenants.</p> <p>In an action, brought under section 1638 of the Code of Civil Procedure,- by one claiming as devisee of the fee, to quiet the title to a lot in the city of New York, it appeared that the defendant was the administrator with the will .annexed of Elizabeth Garter. Under an irregular tax sale, had in 1859, Mrs. Carter became, in 186.1, entitled to a tax lease for 500 years. Proof as to possession was meagre from 1861 to 1872, when Mrs. Carter leased the premises for twenty-one years to persons whose assignee took possession in 1875. While an action brought against the tenant in possession by Mrs. Carter was pending, and ¡after 1884, she died leaving a will by which she appointed the plaintiff and another executors. They qualified and acted. In 1886 the plaintiff first learned of her rights and brought 'an action against the same tenant to recover the premises, bn 1892 the plaintiff succeeded in her action and has since remained in possession by her tenants. In that action she made no mention of the tax lease Of Mrs. Carter and, for this act of hostility to the estate' of Mrs. Carter, the plaintiff was removed as executor, and the defendant was appointed administrator, with the will annexed.</p> <p>Held, .that the. plaintiff was not estopped from maintaining the action by her acquiescence in former years, nor by her assumption of the duties of executor of Mrs. Carter and that, at the most, her rights were merely suspended during her executorship. That, under the provisions ¡of section 1638 of the Code of Civil Procedure, as amended in 1891, the action was maintainable by a person merely in constructive possession by tenants.</p>

Hotioh to restrain, the defendants, constituting the committee for the reorganization of the Union Pacific Railway Company, from issuing, or causing to. be issued, 'for sale, exchange or delivery,bonds secured by. mortgage on the property and franchises of the Union Pacific Railroad Company, in excess' of $75,000,000 for reorganization purposes.

<p>1. Taxation of the capital stock of corporations — Assessment of real ■ estate. •</p> <p>Where commissioners of taxes allege, in their return to a writ of certiorari, issued to review the assessment of a railroad corporation, made under chapter 456 of the Laws' of 1857, that they have accepted as true all the statements of fact contained in its verified inventory submitted to them, they must accept -a statement of the inventory that the actual value of cerain real estate, situated outside of the city and county, does not exceed an assessed valuation of it Which has been made and is ¡stated; and the commissioners cannot, subsequently, in assessing the capital of the corporation, include the real estate In their estimate at its cost.</p> <p>Í2. Same.</p> <p>A statement that the actual value of real estate, whose assessed valuation is stated to be .unknown, does not exceed its cost, justifies its assessment at cost.</p> <p>3. Same — Foreign real estate is not taxable;</p> <p>Real estate, located outside the state of New York and held by a railroad corporation, is not a factor in 'assessing its capital and is to be entirely excluded from the assets.</p>

<p>1. Taxation, of the capital stock of corporations — Real estate may ¡be deducted at its full value.</p> <p>The law governing the taxation of the capital stock of corporations (Laws of 1857, ,chap. 456, § 3) requires tax commissioners, first, to value all the property of the corporation, real and personal, or both, and then to deduct the assessed valuation of its real estate in order to ascertain the taxable capital; but the commissioners, in making this deduction, are not limited by the assessed valuation of the repl estate and may, if they deem- proper, estimate it at its full value.</p> <p>3. Sama — When a building, adapted only to a particular use, may ba assessed at cost.</p> <p>Where the owner did not attempt to establish either a market or an actual value for a building, built for 'and adapted to a particular use, an estimate of it at its cost was sustained.</p> <p>3. Same — Review of the action of tax commissioners.</p> <p>Their action will not be reviewed unless it is capricious, arbitrary or unjust.</p>

<p>Action to enforce the statutory liability of the stockholders of a banking corporation.</p>

<p>Transfer tax— Payment of mortgages from personalty under the direc-' tions of a will.</p> <p>■A direction to executors, that they shall pay mortgages upon the real estate devised by -the will of their testator, does not' authorize an appraiser, appointed under !the Transfer Tax Law, to deduct the amount, thus paid from the value of the personal property in order; to ■ determine the valúe of the succession to it; and this, notwithstanding ■ the fact that the Real Property Daw (Laws of 1896, eh'ap. 547, § ¡215)-expressly permits, a testator to direct that, mortgages upon his realty shall be paid from his. personalty.</p>

<p>Appeal from a judgment in favor of defendant entered upon a' verdict of a jury by S. E. Spinning, a justice of the peace of the city of Borne, on the 30th day of September, 1897.</p> <p>Action upon a written contract of sale.</p>

<p>Motion to" cancel of record a statutory judgment of the County Court based ion the¡ 'filing of a transcript of n judgment rendered in the Justice’s Court.</p>

<p>Appeal from a judgment in favor of plaintiff by. direction jof the court.</p>

<p>Order to examine adverse party — Void, unless witness’ fees are paid — Vacation.</p> <p>The service, in an action, of an order for the examination, under section 873 of the Code of Civil Procedure, of a defendant as an adverse party, when not accompanied by the payment of-legal fees, is. a nullity and entitles the defendant to move, upon the return day of the order, for its vacation.</p>

<p>Appeal by the defendant from a judgment entered upon a verdict directed in favor of the plaintiff.</p>

<p>. Contracts — Promise to pay when able.</p> <p>Proof that a debtor promised her creditor that she -Would “ pay her more just as quick as she could,” and that she (the debtor) “ thought that she would pay her (the creditor) the balance monthly,” does not tend to establish a promise to pay when able — rendering it a condition precedent, to a recovery upon the promise, that .affirmative proof of an ability to pay be shown.</p>

on the part of the plaintiff to strike out so* much of *the defendant’s amended answer-as constituted his .separate, -special* and distinct ''defense.

<p>Appeal from an order made at Special ¡Term, granting the motion made by the "plaintiff to place this action on the short cause calendar of this court, on the ground that the plaintiff is an infant suing by her guardian.</p>

<p>Supplementary proceedings — Fraudulent transfer through a third party.</p> <p>Upon an examination in supplementary proceedings of a third party, who originally held an interest in an estate as trustee for the judgment debtor, the judgment creditor is entitled to show that a transfer of this interest, made by the judgment debtor to another person, was a mere subterfuge, was intended to delay creditors, that the trustee himself furnished the consideration and that it was inadequate.</p>

<p>1. Parol evidence — Admissible, when completing an incomplete written contract.</p> <p>Parol evidence, which is directed to' the completion and sustention of a written contract in a respect in ¡.which it is.incomplete, is admissible, and does.not tend to avoid or alter the contract.</p> <p>8. Same — Uncommunicated intention.</p> <p>Evidence of the uncommunicated intention of onej of the parties to a contract at the time when it was executed, is not admissible to vary , its clearly expressed terms. ' ■</p>

<p>Open commission — Order appealable — Reversal refused.</p> <p>An order granting ah open commission affects a substantial right • and is appealable; but, when granted upon the motion of the defendant, will not be reversed unless there has .been a clear abuse of discretion.</p>

<p>Corporations — Liability of stockholder to promoter — Admissions.</p> <p>A-director and stockholder in n corporation is not liable tó a promoter of It, for services rendered in organizing it, which, the director never authorized originally nor ratified subsequently; nor is he hound by admissions, made oiit of. his presence, by other stockholders, who' are not ¡shown to have, been his. agents.</p>

<p>Action for libel. Motion on the minntes to set aside a verdict of $5,00(1</p>

<p>Habeas Corpus proceedings for the possession of an infant. The opinion states the case.</p>

<p>Action for the construction of a will. ■</p>

Action to make the estate of an executor and trustee responsible for losses alleged to have been sustained in consequence of certain investments.'

Application requiring respondent to show cause why a peremptory writ of . mandamus should not issue against him,- or if mandamus be not allowed by the court, why an order should not be entered herein, allowing a writ of certiorari to review the determination of respondent in dismissing the relator from service.

<p>Motion by defendant to set aside an order directing service of the summons and complaint by publication.</p>

<p>1. Assignee for benefit of creditors Allowance of counsel fees.</p> <p>A general assignee will not be allowed counsel fees Incurred for preparing schedules or for general advice and consultations, but where complicated questions arise, he is entitled to the services of counsel.</p> <p>3. Same—Right of creditors to,examine Mm as to assets claimed by him personally.</p> <p>Where a general assignee, himself an attorney, seeks to withhold a sum lof 8350 paid Mm for professional services, as he testified, twelve days prior to the execution and delivery of the assignment and with knowledge that it was contemplated, objecting creditors should be permitted to show by the assignee that he never rendered any services Tor the sum in question.</p>

<p>Motion for the direction of a verdict.</p>

<p>Demurrer to complaint.</p>

<p>Certiorari to ¡review an assessment of personal property.</p>

<p>Appeal from a ..judgment of the General (Term of the City Court of the City of Rew York, affiiming a judgment rendered upon the verdiqt of a jury in favor 'of the respondent.</p>

<p>1. City Court of Hew York — Conduct of defendants which admits that there are questions for the jury.</p> <p>Where the defendants do not move to dismiss, nor ask for the direction of a verdict, or except to the charge made, or request that any charge be made, there is an unequivocal concession that there are questions of fact for the jury.</p> <p>2. Same —■ What orders relative to new trial's are appealable to the Appellate Term.</p> <p>An order of the City Court of New York denying a motion for a new trial, when affirmed by its General Term, is not further appeal-able. Only orders granting new trials and questions of law, which are raised by proper exceptions, are reviewable by the Appellate Term.</p>

<p>Appeal from an order of the General Term of the City Court of the City of New York, affirming an order made at Special Term of said court vacating an order requiring the plaintiff to give security for costs.</p>

' Appeal from a judgment of the General Term of the City Court, affirming a judgment of the Trial Term, entered on the verdict of a jury, in favor of the plaintiffs, ■

Appeal by the plaintiff from a judgment of the General Term of the City Court of New York, affirming a judgment entered in the defendant’s favor upon the verdict of a jury. , The nature of the action and the facts, so far as they are material, are stated in the opinion.

<p>Appeal from a judgment of the District Court of the City of Hew York, for -the eighth judicial district, rendered in favor of the plaintiffs.</p>

<p>Apbeal from judgment of the District Court in the City of New York, for the eighth judicial district, in favor :o£ the plaintiff.</p>

<p>Real estate brokers competing to sell the same property — Duty of principal to the unsuccessful broker.</p> <p>Where a real estate owner puts her property into the hands of competing brokers for sale, that broker is entitled to the commissions who is the procuring cause of the sale. Under such circumstances, where no time is fixed for performance, the owner may, after the lapse of a reasonable time, in good faith ^ell through one broker without making herself liable h> the other, who, up to the time of the sale, had not succeeded in procuring a purchaser.</p>

<p>Appeal from a judgment of the Eighth District Court, in favor of the plaintiff. -</p>

<p>I.- Landlord and tenant — Eight to abandon — Waiver..</p> <p>A tenant must exercise his option to abandon premises within a reasonable time and a delay of six weeks, after he discovers that the water supply is defective, is too great.</p> <p>2. Same — Constructive eviction.</p> <p>Where a landlord makes no representations to his tenant in regard to "the conditions of premises at a seashore resort where the eptirel -.water supply is at times inadequate, an entire failure for three days of the water supply of the premises, produced by causes over which the landlord has no control, does not amount to a constructive -eviction nor justify the tenant-in abandoning.</p> <p>3. Same — An eviction, occurring after rent payable in advance is due, is not a defense to an action for the rent.</p> <p>An eviction, which will bar an action for rent, must take place before the rent becomes due; and where the rent isi payable in advance upon' August 1st, a constructive eviction, caused by the failure of the water supply on August 17th, is not available as a defense.</p>

<p>Appeal from a judgment of the Sixth District Court, in favor of the plaintiff.</p>

Appeal by the defendant fro-m a judgment of the Municipal Court of the City of Rew York, borough of Manhattan, first dis* trict, rendered by the justice thereof without a jury. The opinion states the nature of the action and the material facts.

Appeal by the defendant from a judgment of the District Court in the Gity of New York, for the second judicial district;.rendered in favor of the plaintiff, by the acting justice, thereof, without a _ , The nature of the action and the material facts are stated in the opinion.

Appeal by the plaintiff from an order opening a default made by the acting justice of the Municipal Court of the city of New York, borough of Manhattan, tenth district. The opinion states the material facts.

<p>District Courts of New York city — Jurisdiction as to creditor’s action, under Code of Civil Procedure, § 1837 — Requisites of proof.</p> <p>Semble, that there is grave doubt whether a District Court of the city of New York has jurisdiction to entertain an action, brought under section 1837 of the Code of Civil Procedure, by a creditor, “ against the surviving husband or wife of a decedent and- the next of kin of an intestate, or the next of kin of legatees ,of a .testator, to recover, to the extent of the assets paid or distributed to them, for a-debt of the decedent, upon which an action might have been maintained against the executor or administrator ”.</p> <p>Assuming that jurisdiction exists, the plaintiff must fail in his action where he has not shown that there has been any distribution of' the assets of the estate of the deceased debtor, nor any payment of any portion of the same to the defendant, or that any letters of administration have ever been issued, upon the estate of the deceased..</p>

<p>Appeal's — Exceptions cannot be considered where the record is defective.</p> <p>The Appellate Term cannot consider exceptions, filed to findings of . fact which are alleged to have been made by a justice of the Municipal Court of the city of New York, where' the record does not contain his findings or decision; nor can the question of the loss of jurisdiction, through alleged illegal adjournments, be considered, where the record does not state the dates of the several adjournments nor at whose instance they were granted.</p>

This action is. brought to recover the sum of $12,000, with interest thereon, alleged to have been paid by the plaintiff to the defendant for the purpose of having the same invested in securities to be purchased by the president of the defendant for her, upon the ground that said money was obtained from the plaintiff and permitted by her to be used in the purchase of said securities, by reason of the false and fraudulent statements and representations of the defendant’s…

<p>■Motion in each action for an injunction pendente lite. Facts appear in opinion.</p>

<p>Action for the construction of a will.</p>

<p>Basements, servient to a rear house, built in part on two lots, determined by a partition of the lots among the heirs of their common, owner — Bight of user as an “ appurtenance ” — Becitals indicating a complete separation of the estate.</p> <p>The owner .of two lots on a city street erected thereon two buildings abutting upon the street, and in the rear thereof three buildings. The division line between the two lots passed through the middle of the center one of the three rear buildings, the water supply for which came from the street pipe through the moat easterly of the two lots; its chimney being built substantially on the line between the two lotSj along which line there was also, built a, common sewer. By conveyances executed between the'heirs of this original owner, the two lots were conveyed to different parties and a subsequent purchaser of the easterly lot sawed the middle rear house through its centre line, removed the half part situate on his lot and erected in its place another structure, thus destroying the Sewer connection of and the water supply to the west half of the middle house. In an .action brought by the purchaser of the westerly lot to compel. the restoration of the ¡easterly half of the building, which had been destroyed, and for the recovery of-damages occasioned by its removal, it was Held, that the owner of the easterly lot had a right to remove the portion of the building which stood thereon and to utilize it for his own purposes; that the chimney, sewer and water pipe were servient to the middle house and incidental to Its use, and that the right to their user fell with the separation of the estate; in the middle house.</p> <p>That such right of user did not constitute “ an appurtenance ” to the lots conveyed so as to be a common servitude for both;</p> <p>That this construction was supported by the fact that the conveyances were expressly made subject to the agreement of any tenant or tenants then occupying the premises, or any part thereof, indicating that the parties understood the separation of the title to each lot to be complete, as no such reservation was necessary if each half of the middle house was appurtenant to the lot on which the other half rested. ' 1</p>

This is a contest between the towns of German' Flats and Warren, in Herkimer county, over the settlement of a poor person and the attendant liability for support and relief furnished him as such.

This is an appeal from a judgment of the City Oourt of the city of Hudson, acquitting the defendant of a charge of having violated a city ordinance, and is entitled in the return as above. A certificate of disqualification having been duly filed by the county judge the appeal comes here for hearing and decision.

<p>Action to foreclose a mortgage.</p>

Action for libel. Motion on the minutes to set aside a verdict for the plaintiff on the ground that the words- were not libelous per se, and that therefore, as no special damage had been pleaded, no cause of ¡action was alleged; ¡also m the ground that there was- no malice.

Action upon a promissory .note, against the two makers, and the two payees as indorsers. The two indorsers answer, setting np as a defense that the plaintiff released a certain security given by the makers for the payment 'of the note, and thereby released the defendants as indorsers.' The facts proved are as follows: The plaintiff’s husband sold his business and chattels therein to the said makers of the note.

<p>Motion to set aside a verdict for the plaintiff as excessive.</p>

<p>Absolute 'devise to a ¡person, but intended to benefit a religious order — Transfer of title to the order by the acts of the parties — Estoppel. '</p> <p>A will devised absolutely to Mary Ely, otherwise called: “ Mother Jerome,” certain lands. It then proceeded, “My purpose In making this devise is to devote the same to the object of ¡a hospital under the charge of the Sisters Of Charity, but in expressing this purpose I do not desire to create or attempt to create any trust in law affectingBáid premises, willing as I 'am to confide unreservedly in the honor and conscience of said devisee. If said Mary ¡Ely should happen to die-before me, then I devise the same as aforesaid to the sister who may ait the time of my death .be at the head of St. Vincent’s Hospital, in the city of New York.” Mary Ely who was bound, by the rules of her order, to transfer to it all gifts made to her, treated the property-as belonging to the order until her death, intestate, about fourteen years later. During thirteen years immediately, after the devise of the property, the order paid all the taxes imposed upon it and then procured it to be exempted from taxation as the property of their religious body, and had, when the present action in partition was brought by an heir-at-law of Mary Ely, been in possession of it for about twenty-four years.</p> <p>Held, that the acts of Mary Ely and those of the members of her order had given to the devise a practical construction as one made to the order, and that she and her heirs under her, were now estopped from questioning the title of the order.</p>

<p>The facts appear sufficiently in the following opinion.</p>

<p>Motion to dismiss indictment on the ground that the evidence presented to the grand jury was insufficient.</p>

. Motioit to set aside an order heretofore granted, requiring said defendant to submit to examination before trial, and also upon said examination to produce certain books of the Syracuse Street Bail-road Company.

<p>Husband and wife — Abandonment — Necessaries.</p> <p>Where a husband abandons his wife and minor children and fails to support them, she has a right to bind his credit for all necessaries supplied for her and their use.</p>

• Appeal from an order denying a motion requiring plaintiff to state separately the two causes of action set -forth in the complaint and to elect which of them he will rely upon in this case.

<p>1. Lease to a firm — Continued occupation by one partner does not renew the lease.</p> <p>Where premises have been rented to a firm, occupation by a single partner, after the expiration of the original term, does not renew the lease nor constitute a holding over by him under it.</p> <p>2. Lease for an indefinite term — Duration — Holding over.</p> <p>A person thus in occupation of premises in the city of New York until some time „in June, under • an indefinite agreement as to the duration of 'this occupation, must, under 2 B¡. S., 9th ed., p. 1818, § 1, the special statute applicable to that city, be deemed entitled to a valid term until the first day of the ensuing May and where he remains in possession after that day, the yearly letting thus created continues for another year.</p>

<p>City Court of New York — Service, as of course, of an. amended answer, after a (reply.</p> <p>The plaintiff, in an action in the City Court iof New York, served an amended complaint ton May .7; ¡on May 15, the defendant served an answer to the same, setting up a counterclaim; on June 1, the plaintiff served a reply by mail, and on June 12 the defendant served an amended ansyver, as of course.</p> <p>Held, that the amended answer was In time as the defendant had twelve days to serve it after the service, by mail, of the reply.</p>

<p>Liquor Tax Law — A comer building used as a saloon — Measurement of 200 feet from its entrance to that of ,a synagogue around the corner — When a (building is used “ exclusively ” as a church — Occupation as a saloon, prior to March 3, 1896, shown- by a stipulation.</p> <p>Upon an application to revoke a liquor tax certificate, it appeared that the saloon in question, was on the corner of Division and Third streets and that a synagogue adjoined it on Third street. An entrance to the saloon from Third street had never been used by the ' licensee; he had boarded it up and had extended a portion of his bar beyond the interior opening of this entrance. The center of the main entrance on Division street, álthough around the corner, was within l ' 200 feet of the center of the nearest entrance of ithe synagogue, when' measured in a straight line. Held, that the building was within the inhibition of the statute (Laws of 1896, chap. 112, § 24, subd. 2, as amended by Laws of 1897, chap. 312). It appeared that the basement of the (synagogue was rented by its trustees to five societies connected with the synagogue and largely composed'of its members and that the rentals were used to maintain the ¡synagogue. Held, that the synagogue was occupied “ exclusively ” as a (church, within the meaning :of the statute.</p> <p>Where the parties to such a proceeding stipulate that the premises “ have been regularly licensed and occupied 'continuously as a saloon for the sale of liquor for a period of at least ten years,” before April 6, 1898, the premises lare clearly within the statutory exemption given to a place in which traffic in liquors was actually carried on, on the 3d day of March, 1896.</p> <p>Parties toy their stipulations may make the law for any legal proceeding in which they are impleaded, which not only hinds them, but which the courts are hound to enforce.</p>

<p>1. An executor cannot procure, under Code Civil (Procedure, § 2624, a construction by a surrogate of a bequest of. personalty,</p> <p>A mere executor and proponent of a will has not sufficient interest in the, estate of his testator to entitle him to invoke the Jurisdiction given to a surrogate by section 2624 of "(the Code of Civil Procedure, to determine the validity, construction ,or effect of a disposition of personal property contained in the will of a resident of the state (of New York, executed within the stare, when .the disposition is expressly put in issue by a “ party.”</p> <p>8. Bequests of personalty to foreign religious corporations — Power to take is governed by the law of the domicile of the donee.</p> <p>Where boards of missions, incorporated in a foreign state, are forbidden by its statutes to take bequests under any will unless the will was made one calendar month before the decease of the testator, they cannot take bequests under a will of personal property, situated in this state, which was made by a resident testator twenty-six days before his death and this, although such bequests would be valid under the laws of this state.</p>

<p>Appeal from a decision of the Municipal Court of the City of New York, borough of Manhattan, sixth district, discontinuing the above-entitled action.</p>

<p>Actions — Bight of-assignee to sue> where the transfer is legal.</p> <p>Where a cause of action has been duly transferred, the assignee hap a right to sue and the fact that the assignor testifies, upon the trial, that he expects to receive the amount of any recovery isl immaterial and does not justify a dismissal of the complaint.</p>

<p>Appeal from a judgment rendered in the Municipal Court of the City of Mew York, borough of Manhattan, ninth district, in favor of the plaintiff.</p>

<p>Appeal from ;a judgment of the Municipal Court of the City of Hew York for the second district, borough of the Bronx, in favor of the defendant.</p>

Appeal by the defendants from a ijudgment of the' Municipal Court of the City of Mew York, borough of Manhattan, fourth district, rendered in favor of the plaintiff, by the justice thereof, without a jury, ....... ¡ The nature of the action and the material facts are stated in the opinion.

Appeal by the plaintiff from a judgment of the District Court in the city of Hew York,' for the first judicial district, rendered in favor of the defendants, by the justice ¡thereof, without a jury. The nature of- the action and the material facts are stated in the opinion.

<p>False representations — Proof</p> <p>Where proof of alleged false and fraudulent representations, which procured the plaintiff to part with his property, is made by his.own testimony and that of two additional witnesses, it is erroneous for the court to dismiss the complaint upon the ground ,f that there was no evidence a|S to false and fraudulent representations-.”</p>

<p>Pleading where a complaint charges fraud, there can be no recovery on contract — Proof of fraud.</p> <p>Where the complaint, in an action to recover moneys, alleges them to have been obtained from the plaintiff by the defendant through fraudulent representations, it is the duty of the court, upon, finding that no fraud has been committed, to dismiss ,the complaint; and it has' no power to render :a judgment in favor ¡of the plaintiff for the amount claimed as “ for moneys loaned.”</p> <p>An allegation of fraud in contracting a liability is not sustained by mere proof of a contract and its breach.</p>

<p>Motion to dismiss appeal,</p>

<p>Municipal Court — Order opening default must state the grounds</p> <p>An order of a justice of la District, or Municipal Court of the City of New York opening a default, is fatally defective unless it recites: and contains the grounds for the order.</p>

<p>Appeal to Appellate Term — Orders appealable.</p> <p>After a justice of a District, or Municipal Court of the City of New York had opened the default of a defendant -upon terms, he made a subsequent order vacating his former order and, in effect, denying the motion on the ground that the terms upon which his former order • had been made had not been complied with. The defendant appealed to ¡the Appellate Term.</p> <p>Held, that the appeal must be dismissed, as the statute did not authorize such an appeal, but only one from an order ¡opening a default. .</p>

<p>Proceedings by habeas corpus to discharge the defendant from the custody of the” sheriff of Cattaraugus county.</p>

<p>Appeal to Appellate Term — Eeview of final order In summary pro-, ceedings.</p> <p>Where a review is sought of a final order in summalry proceedings, the return should show all that took place before .the justice prior to his signing the order, but matters which transpired thereafter cannot be considered nor be made a part of the return.</p>

<p>Application by defendant for a certificate of reasonable donbt.</p>

<p>Appeal from a judgment in favor -of plaintiff, rendered in the Justice’s Court of the Borough >of Brooklyn.</p>

Action in equity by the receiver of an insolvent corporation to compel the surrender to him as receiver of certain mortgages held by a trust company. ' . •

<p>Habeas Cospus-to procure the-discharge of the relator from arrest in proceedings for contempt.</p>

<p>Clubs — Expulsion — Jurisdiction ■— Notice — Opening a sealed letter to a club president and readdressing it to one’s self.</p> <p>A person who joins a club presumably assents to its constitution and where this provides that a member, guilty of any conduct prejudicial to its Interests, may be (suspended by its directory and may subse- ■" quently be expelled by a majority vote of the club at its next meeting, the court will not Interfere with an expulsion,, of whose regular proceedings the expelled member had due notice but in which he declined to participate in any manner whatever.</p> <p>In such a case, if there is jurisdiction, a valid by-law and no "arbitrary or capricious exercise of power, the legal remedy of the person ¡ expelled is at an end.</p> <p>The opening iof a sealed letter, addressed to the president of a club I and pertaining to its business, and the destruction of the original envelope and .substitution of another-, .so as to ma,ke -it appear that the. letter was addressed to the person who opened it, is a sufficient ground | for expulsion.</p>

<p>Motion for an order pf preference.</p>

<p>Application to dismiss an indictment.</p>

<p>Electric light and power corporations — Construction of Laws of 1890, chap. 566 — Duty of an applicant to reply when the company inquires how much light and power he wants'.</p> <p>Where an electric light and power company, subject to the- provisions of chapter 566 of the Laws of 1890, replies to a demand, made -by an owner or occupant of premises within 100 feet of its wires, that it furnish him “ with electric light and power at once ” by asking him, in writing, how much light and power he wants, it is his duty to answer and, failing this, he cannot successfully maintain an action against the corporation to recover of it the penalty imposed upon it by section 65 of the statute for a neglect or refusal to supply “ electric light as .required.’,11</p>

Appeal by the -defendant from a judgment entered upon a verdict in favor of plaintiffs and from an order denying a motion for a new trial.

<p>■ Appeal from an order restoring cause ito the day calendar for trial.</p>

<p>!•. Action by a foreign corporation — Right to sue as affected by Laws of 1892, chap. 687, § 15 —The statute affects the remedy only.</p> <p>The provisions of section. 15 of chapter 687 of the Laws of Í892, which forbid a foreign corporation to do business in the State of New York unless it has first procured a certificate from the secretary of ■ state that it has complied with all the requirements of law to authorize it to do business and which enact that “No foreign stock corporation doing business in this state without such certificate shall maintain any action in this state upon any contract made by it in this state until it shall have procured such certificate ”. permit such la corporation to maintain such an action where, although it had not such a certificate when the contract was made, it had obtained one before it begun its action upon the contract; the inhibition of the statute operating upon the remedy alone.</p> <p>2. Foreign corporation. — Affidavit for attachment — License tax.</p> <p>A foreign corporation which did its first business in- this state on • November 24, 1896 and brought an attachment action on the con- . tract then made upon November 15, 1897, has not, at the latter date, become liable to pay fthe license tax of one-eighth of one per cent, imposed upon such corporations by chapter 240 of the Laws of 1895, and hence its affidavit, for an attachment, need not allege payment of the tax and'is sufficient where it gives the details of the contract and further alleges that the corporation has complied with all tlie requirements of the law of the state to authorize it to do business therein.</p> <p>8. Attachment.</p> <p>An attachment will be sustained unless the papers clearly indicate that the plaintiff must ultimately fail.</p> <p>4. Foreign corporation — Power of its president to contract for it.</p> <p>The president and executive 'officer of a corporation is impliedly vested with authority to transact its ordinary business and the corporation is liable upon a contract made for it by him.</p>

<p>Appeal from judgment, entered on a report of referee, appointed to hear and determine the issues herein.</p>

• Motion to set aside a verdict for the plaintiff, and to dismiss the complaint on all the evidence, the verdict having’ been taken by consent subject to such a disposition of the case. The action was for damages for negligence.

<p>Action for an injunction to restrain the use of a trade-mark.-</p>

<p>Order of arrest — Liability of sureties for the defendant’s loss of earnings while in jaiL</p> <p>Sureties upon an undertaking, given in an action by the plaintiff .to procure an order of arrest, are liable to the arrested defendant for his loss of earnings for forty-two days, during which period he was unjustly incarcerated, by virtue of the order, as such a loss is a proper element of the damages which the defendant “ might sustain by reason of the arrest,” within the meaning of the undertaking.</p>

<p>Abpeal from á judgment of a Justice’s Court, in favor of respondent. • ¡</p>

<p>Certiorari to review the deterroination of the commissioner of public works as to the exemption of a Young Men’s Christian association from the payment of water rates.</p>

<p>Petition by a remainderman — Consent of the holders of particular estates to a sale — An existing express trust — Effect of a voluntary existing express trust.</p> <p>A testatrix devised to trustees one equal share of her residuary real and personal estate “ upon trust for my said son Joseph R. Peirson for his life, with remainder for Susan, his wife, for her life, with remainder for their children or child living to attain the age of twenty-one years, and if more than one equally share and share alike as tenants in common. And in default of any such children or child then the said share so intended for the benefit of my said son Joseph Robert Peirson and bis wife and their children or child shall be held by my said trustees for the benefit of my said daughter Julia Augusta Van Bergen and her husband or children or child as if the same were included in the share hereinafter provided for my said daughter and her husband and children or child.” She devised' another third for the benefit of . her daughter Julia Augusta Van Bergen to the same trustees and upon the same conditions and the remaining third, for the benefit of another person, upon a .similar trust; a disposition subsequently cut off by her and this share directed to take the same course as the other two shares. Her son and his wife and the husband of her daughter are living. In an action of partition brought by a remainderman, the son of Joseph R. Peirson,</p> <p>Held, that the will created a valid express trust to receive the rents and profits and apply them to the use of the beneficiaries named.</p> <p>That as three of the beneficiaries were living, the trust* still existed and hence the trustees, as holders of the particular estates, had no power to give the written consents to a sale in the action which are required, by section 1533 of the Code of Civil Procedure, to be given by such holders where an action of partition has been brought by a remainderman. It ¡further appeared that after the will of the testatrix had been probated, her son and his wife, her daughter and her husband voluntarily conveyed to the same trustees all the property in question upon the same trusts as were created, or were attempted to be created, by the will, and that this Instrument of conveyance clearly created a valid express trust to hold the premises, receive the rents and profits and apply them to the use of the same beneficiaries during life.</p> <p>Held, that as this trust, although voluntary, was still in existence and had never been revoked, it constituted an additional bar to a sale of the premises under section 1533 of the óode’ of Civil Procedure.</p>

<p>Action to set aside as fraudulent a settlement made by a beneficiary of certain insurance issued by the defendant upon the life of her husband.</p>

<p>Partition — Insufficient proof of the will of the deceased owner, drawn, in a foreign country.</p> <p>A stipulation showing that the person, a citizen of the state of New York, through whom all the parties to an action of partition claimed* died in a foreign country and left a writing, there made, which was. duly deposited in a court of the foreign country where administration was had and that this paper, never proved or established as a will in the state of New York, had upon its face certain acknowledgments and witnesses, when not accompanied by any proof that the paper was executed and acknowledged according to the requirements, of our Statute of Wills, affords no basis for a defense, interposed in , the action, that this paper, a copy of which was annexed to the answer, governed, as a will, the disposition of the premises.</p>

<p>Referee’s fees — Several similar cases tried together — “ Expenses ” of the referee — Stipulation that he might “ fix his own fees Apportionment of witnesses’ fees — Copies of stenographer’s minutes.</p> <p>The parties to three actions of a similar nature, brought by the same plaintiff and tried together before the same referee, stipulated that the referee might “ fix his own fees,” that the stenographer’s fees should be paid one-half by the plaintiff and one-half by the defendants, that the successful parties might tax the portion of these fees paid by them as a disbursement and further “ that the evidence is to be taken as in one ease 'and to be deemed to be taken in all of the cases so far as applicable.” The referee found for the defendants in all the cases and they were represented by different attorneys.</p> <p>Held, that the defendants were not entitled to tax full referee’s fees in each case, that the fees paid should be apportioned ratably among all the eases; but that, additionally, the referee would be entitled to fees for any labor, bestowed upon a particular case, which labor was not common to all the cases.</p> <p>That the referee was not entitled, in. addition to his fees, to “ expenses,” these consisting 'of car fare, hotel bills, etc.</p> <p>That a stipulation that the referee might " fix his own fees ” was not a sufficient compliance with section 3296 of the Code of Civil Procedure limiting a referee to $10 per day unless “ a different rate of compensation is fixed ’? and (that consequently he was entitled to only $10 a day.</p> <p>That but one set of witnesses’ fees were taxable in all the cases, where witnesses were called but once and had then testified for the benefit of all the cases.</p> <p>That as the stipulation did not state how many copies of the stenographer’s minutes should be made, and as the plaintiff’s attorney had apparently acquiesced In the making of a third copy, it was taxable.</p>

Memoirs in five cases to stay sales of property under judgments of foreclosure and sale pending .appeals to the Court of Appeals. The facts are sufficiently stated in the opinion.

<p>Motions to set aside indictments, in two separate indictments, one for conspiracy and the other for bribery.</p>

Action against “ People’s Pire Lloyds ” for a judgment declaring the defendants to' he luúawfnlly transacting the business of insnranee and for an injunction restraining the issuance of policies of insurance.

<p>Trade-marks — Hostile use of initial adjectives qualifying colors.</p> <p>On a motion for a preliminary injunction In an action, it appeared that, upon the dissolution of the partnership of the parties for the manufacture and sale of dry colors, the plaintiff bought the assets including, among other things, the trade- names “Oriole Vermilion” and “ Peerless Green.” and that the defendant, who had subsequently embarked in the same manufacture, was using the terms “ O. Vermilion” and “ P. Green.”</p> <p>Held, that even assuming the plaintiff’s right to both adjectives,"he could not prevent the defendant from using the initials instead of the name, as such a use was not calculated to deceive the public, or at least, so muQh of it as used its eyes and ears.</p>

Motion by Atlantic Trust Co., one of the defendants, to set -aside verdict in favor of plaintiff for $151,142.82,-and for a new trial, on alleged errors of law.

Action to charge treasurer of the Equitable Stock Company with the statutory penalty for failure to deliver to the plaintiff as a stockholder of said company, a financial statement of its condition.

<p>Action, against a receiver of a national bank upon an impressed trust — An attempted_payment by its cashier, not executed — Preferential payment.</p> <p>At half-past 3 .o’clock in the afternoon of January 25, 1897, the treasurer of a church presentéd for payment to the cashier of a national bank certain certificates of deposit issued by it, was - directed by the cashier to indorse them and had indorsed, two of them, when he was called back to the cashier’s window by the' president who forbade payment, although the bank then had funds sufficient to pay, and thereupon the bank suspended definitely. The comptroller of the currency appointed a receiver during the next month and the ■ present action was brought against the receiver to recover the deposit on the 'ground of a trust to the extent of the deposit by the agreement of the cashier to pay. The receiver demurred to the complaint.</p> <p>Held, that ais the attempted paymént was not fully executed on January 25, 1897, no fund was actually set apart,for the,plaintiff and that,-as against the receiver, ,it was not entitled to any preference over other creditors; nor did it show any equities entitling it to a ■preferential payment.</p>

Motion upon the judge’s minutes to set aside the verdict herein, and -for a new trial on the ground that the same is ¡contrary to the evidence and contrary to law; also, because fh© verdict is excessive. Also, separate and special motion to set aside so much of the verdict as awards damages for injury to rental value subsequent to the commencement of the action.

Appeal from a judgment of dismissal in favor of defendants also appeal fróm a-judgment in favor of plaintiff, entered upon a verdict,

<p>Appeal from ia judgment in favor of plaintiff, entered upon a verdict and from an order denying a motion for a new trial.</p>

<p>Appeal from a judgment in favor of plaintiff.</p>

This is an appeal from an order substituting the indemnitors of the sheriff in his place as defendants herein -under section 1421 of the Code, of Civil Procedure. On or about January 3, 1898, two executions were issued against the property of Alfred Ebenstein in favor of Louis Levy, one for the sum of $127.29 and the other for $1,527.50.

A.ction to oust the defendant from the office of fire marshal of the city of Hew York, for the boroughs of Brooklyn and Queens, and have the title of the relator thereto established.

<p>Ap'plxgation for injunction.-</p>

<p>Appeal from a judgment of the General Term'of the City Court of the city of Hew York modifying, and as so modified, affirming a judgment in favor of the respondents dismissing the complaint.</p>

<p>1. Open commission — Review by Appellate Term.</p> <p>Where the requirements of the Code of Civil Procedure have been met, the Appellate Term will not review an order granting, an- open commission, as such an order involves the exercise of discretion upon the part of the court below.</p> <p>2. Same — Affidavit.</p> <p>Where the defendant’s papers, on his application for an open commission in an action for a breach of promise of marriage, do not show that his proposed witnesses are not within the state of New York at the time when the application is made, nor explicitly allege that the witnesses are material and necessary, where the name of no witness sought to be examined is given, or any fact or circumstance set out which it is claimed will prove or tend to prove the alleged defense, an order for an open commission must be reversed.</p>

<p>Real, estate brokers — Commissions.</p> <p>Where the communications of a real estate broker with a purchaser are the means of bringing him and the owner together and a sale results in consequence, the broker is entitled to commissions, nor can.he be deprived of them by the action of the owner in subsequently taking the matter into his own hands, without terminating the agency, and. selling'the property to the same purchaser at a reduced price.</p>

<p>Bill of particulars — Review by Appellate Term — Affidavit.</p> <p>The Appellate Term will not ordinarily review an order of the City Court of New York, for a bill of particulars but where, upon a plaintiff corporation’s application for such a bill relative to a counterclaim, in order that it may prepare a reply, the affidavit made by. itsi president and general manager states that “ he ” has no knowledge or information of the items of damage alleged in the counterclaim, there is a failure to prove that the corporation cannot, through any of its officers or servants, acquire the desired information.</p> <p>An affidavit in which the president, although alleging that he is advised by his counsel of the necessity of being apprised of certain items by a bill of particulars in order properly to prepare a reply to the counterclaim, does not allege that he has fully and fairly stated the ease to his counsel and does not give the name and residence of his counsel, fails to comply with the provisions of Rule 23 of the General Rules of Practice.</p>

<p>Action for double rent — Recovery for single rent refused.</p> <p>Where a landlord is defeated in an action to recover double rent of a tenant who held over the term after having given notice to quit (1 R. S. m. p. 745, § 10), the landlord is not, under such complaint, entitled to recover single rent for the term during which the tenant held over.</p>

Appeal by the defendant John Henry Theiss, from !a judgment of the General Term of the City Court of Hew York, affirming a judgment entered in favor of the plaintiff against the'defendants, upon the verdict, of a jury. The nature of the action and the material facts are stated in the opinion.

<p>Statute of Limitations — Acknowledgment of debt.</p> <p>A letter written to a creditor by a debtor in which he says, “ 1 regret to say that my neglect in not responding to your statement of account was owing to my not haying disposed of but few of your goods (and those as samples) as it was nearly two years before I placed the first plant, but now .that I have got the ball rolling,-am in hopes to do good business in the future, that is, if Inman who is now over there, don't reap the benefit of the trade that took me three years to establish,” when preceded by a statement of account mailed by the creditor to the debtor, constitutes an acknowledgment of the debt-sufficient to remove from it the bar of the Statute of Limitations.</p>

<p>Appeal from a judgment in favor of the plaintiff, rendered in the Municipal Court of the City of Hew York, borough of Manhattan, eighth district.</p>

<p>Appeal from a judgment of the District Court of the City of Yew York, sixth, judicial district, dismissing the complaint.</p>

<p>Common carriers — Delivery to the carrier.</p> <p>In an action where the issue was whether the plaintiff had delivered certain goods to the defendant, an express company, it ■ appeared that he was a regular customer, furnished with a placard which he exposed when he wished an express wagon to call and also with a book of blank receipts. After the plaintiff had exhibited his placard on a certain day, a stranger, who had the name of the company inscribed on a shield on his cap, came in the store while there was, on the other side of the street, “ a sort of yellow wagon ” on which the company’s name-appeared, signed a receipt and took away the goods. It did not appear that he came from or returned to the wagon, nor was it shown who owned the wagon. The company repudiated the whole transaction,, including the name of the -alleged agent as signed in the book.</p> <p>Held, that no delivery was made out.</p>

<p>Notice of appeal — Amendment.</p> <p>A written notice that a party defeated in a Municipal Court of tire . City of New York “ appeals to the Appellate Division of the Supreme Court of the state of New York, first judicial district” sufficiently apprises his adversary that the appeal is to the proper tribunal, the Supreme Court, and, although there is a misdescription of the particular branch of that court where the appeal may properly be heard, the adversary has not been misled and the appellant should be allowed to amend his notice by substituting the “Appellate Term" for the “ Appellate Division.”</p>

Aureal from a final order in summary proceedings in favor of the respondent made by the justice of the Municipal Court of the City of New York, borough of Manhattan, first district.

<p>Payment — Proof.</p> <p>Where proof of payment, denied by the creditor, rests upon the evidence of the debtor and his clerk that payment was made to the creditor’s agent, a finding of payment will be. reversed where a receipt given to the debtor is not produced by him, nor - its absence satisfactorily explained, nor its last custodian produced.</p>

<p>negligence — Failure of landlord to protect tenant, while putting on a new roof — Exemptions by term of lease.</p> <p>A landlord, who has covenanted to keep demised premises in a tenantable condition and who subsequently, and during the term, puts a new roof on the building; is liable to a tenant of the top floor whose flat is, owing to the negligence of the landlord, his servante or agents, damaged by large quantities of rain water which ran through the roof while the change was being mhde.</p> <p>The landlord is not exempted from liability for such damages by a clause in the lease, reading “ The landlord shall not be liable for any damage caused by leakage of water or for any cause or event ”, as the leakage here contemplated must be deemed to refer to such an one as might result from ordinary wear and tear, or from the carelessness of tenants, or from the sudden action of the elements.</p>

<p>Aureal from a judgment of the Eighth District Court, in, favor of the defendant.</p>

<p>Appeal from a judgment of the Second District Court in favor of the plaintiff.</p>

<p>Negligence — Overflow of water upon tenant beneath.</p> <p>In an action where damages were sought for alleged negligence, it appeared that a bath-tub, directly over a part of the floor of the plaintiffs, was found in the morning full of water, -that the faucet was turned on, that there was some water on the floor of the bathroom, that the ceiling 'of the plaintiffs’ room had fallen down and that the walls were soaked with water, which was also dripping from the ceiling. Although the bath-room was under the control of the defendants, they showed that it was never used for bathing purposes, that no one ever went into it, except the partners and their stockman, that no one could go into it unless some of these persons saw him, that they had seen no one go into-it, and had not themselves turned on the faucet. They also' showed that a plumber, in no manner an agent of the defendants, had been in the bath-room on the day before the overflow.</p> <p>Held, that, while the plaintiffs had clearly established a prima facie case, the court would not interfere with the decision bf the court below, made upon the whole case, that the plaintiffs were not entitled to recover.</p>

<p>1. When a contract is not entire.</p> <p>Where an advertising contract, for placing cards in all Lenox avenue electric cars for a term of three months, provides that “ the omission of any reasonable number of cards from the cars shall not constitute a violation of this contract, but the advertiser shall be entitled to a pro rata rebate for such cards as may have been omitted ”, the advertiser is not in a position to resist payment upon making proof that the cards were not shown in some of the Lenox avenue electric cars, as the contract cannot be deemed to be entire.</p> <p>2. Jurisdiction of District and Municipal Courts of New York city.</p> <p>The charter of the Greater New York, by its section 1351, particularly continues the District Courts of New York city under the name of Municipal Courts and, by its section 1352,_ provides that the justices, in office on January 1, 1898, shall continue for the remainder of their terms and shall be called justices of the Municipal Court.</p>

<p>Appeal from a judgment of the Municipal Court of the City of Mew York, borough ¡of Manhattan, third district.</p>

<p>Common carrier — Liability as warehouseman — Receipt not qualifying liability — Unexplained loss.</p> <p>A common carrier delivered to the owner, of a properly closed valise, a shipping receipt stating, among other things, “ Property not removed by the person or party, entitled to receive it, within twenty-four hours after its arrival at destination, may be kept in the car, depot, or place of delivery of the carrier at the sole risk of the owner of said property.” When, eighteen days after its arrival,'" the owner deceived and opened the valise, its contents were gone! The carrier offered no explanation of the loss, but showed that the valise had been carried in a sealed car, whose seals were not broken when it arrived, and that all the goods oí the car were placed upon arrival on the floor oí a dock, which had been well guarded.</p> <p>Held, that the carrier was liable as a warehouseman, for the unexplained loss.</p> <p>That the terms of the shipping receipt did not relieve it from its-liability as a warehouseman.</p>

<p>Summary proceedings — Forcible detainer — Petition — Jurisdiction.</p> <p>An allegation contained in the petition of a person seeking to regain possession of premises from which, as he alleges, he has been forcibly dispossessed, that, when so evicted, he was in the peaceable posses- ■ sion of the said premises, a second floor, “ by virtue of a certain arrangement or agreement made and entered into between himself and Julia Ross as lessee of said entire premises (of which the floor occupied by your petitioner as aforesaid forms a part) by the terms . of which agreement your petitioner duly became entitled to and went into possession of the floor occupied by him as aforesaid,” fails entirely to comply with the provisions of section 2235 of the Ctode of Civil Procedure requiring such a petition to describe the premises “ and the interest therein of the petitioner; ” the petition confers no jurisdiction of the subject-matter upon a District Court of the city of New York, and the objection that it does not confer jurisdiction may be made after answer.</p>

Appeal by the defendants from a final order in summary proceedings awarding the delivery of the possession of certain premises to the petitioner,- made 'by the justice of the District -Court in the city of New York, for the fourth judicial district, upon a trial had without a -jury.

This is an appeal by the petitioner from a final order of the Municipal Court of the City of New York, borough of Manhattan, sixth district, made in favor of the occupant, Jane H. Mills, by the justice thereof,, upon a trial had without a* jury. The 'said Jane H. Mills died shortly after the making of the final order, and by an order of'this court, Lucille 0.

Appeal by the'defendant from a judgment of the Distinct Court in the City of ¡New York for the thirteenth judicial district, rendered in favor of the plaintiff for $50 damages, with costs and extra costs, by the justice thereof without a jury. The nature of the action and the material facts are stated in the opinion.

<p>Appeal by the defendant Jerome Alteria, from a judgment of the Municipal Court of the city of Eew York, borough of Manhattan, sixth district, rendered in favor of the plaintiff against the defendants, by the justice thereof, without a jury.</p> <p>Action to recover damages for a personal injury claimed to have been sustained in consequence of the defendants’ negligence. The pleadings were oral. The answer was a general denial. The opinion states the material facts. ‘</p>

<p>Appeal from a judgment rendered in the District Court of the city of New York for the tenth judicial district, on the 31st day of December, 1897, in favor of the respondent, dismissing the proceedings.</p>

<p>Innkeepers — When a person is a guest and not a boarder — Liability for unexplained loss of apparel.</p> <p>A foreign army officer, who takes a room in a hotel for an indefinite time at an agreed price of one dollar and twenty-five cents per week, is a guest and not a boarder, and the hotel-keeper is liable to -him for the value of wearing apparel which disappeared from his room, in some unexplained manner," and without any negligence upon his part.</p>

<p>Appeal from two orders bearing date, respectively, March 22, 1898, and March 29,- 1898, .made by the justice sitting in the Municipal Court of the City of New York, borough of Manhattan, fifth' district.</p>

<p>Appeal from an order'of the Municipal Court of the city of 'New York, borough of Manhattan, fourth district, opening plaintiff’s default.</p>

<p>1. Replevin — Former adjudication.</p> <p>A dismissal of an action of replevin, “ for a failure to place on calendar,” is not “ a final judgment ” within the meaning of section 1691 of the Code of Civil Procedure and does not bar a second action of replevin for the same cause of action.</p> <p>52, Same — Demand, where possession is rightful.</p> <p>Where possession of chattels.has been obtained rightfully, a demand, before action brought, must be alleged and proved, and a failure in . this regard justifies a reversal of the judgment.</p>

<p>Mechanic’s lien — Proof required of subcontractor.</p> <p>In order to recover against the owner of premises, a subcontractor must show that something was due fipm the owner to the principal contractor when the lien of the subcontractor was filed, or that, thereafter, a sum became, due from the ownér to the principal contractor which sum was applicable to the claim of the subcontractor.</p>

<p>Action for partition.</p>

<p>Application for an order revoking and canceling a liquor tax certificate.</p>

■ Orrin Heath died January 25, 1890, leaving a landed estate of about $22,000, and personal property of the value of about $2*500. The defendant, Maria. Heath, his widow, aged about sixty-eight years, survived him but no descendants. He left a will which was executed March. 13,. 1889,-and admitted to probate March 10', 1890, by the terms of which his widow was made the sole beneficiary and executrix, and she thereafter qualified as such.

<p>Motion to set aside an execution against the person in an.action for negligence. " ...</p>

<p>Nuisance — Operation, of the plant of a steam company.</p> <p>Proof that, when the wind1 is in a certain quarter, cinders and soot, from the smokestack of the building of a steam company fail upon’ the premises of a neighboring owner, that the occupants of these premises are somewhat disturbed by noises made by the iron shutters of the furnace of the steam company and by the unloading of its coal,' that foul odors are produced to some extent by the steam company’s pouring water "on heated ashes, and that more or less heat comes from its boilers, does not sufficiently indicate that the steam comp'any is maintaining a nuisance, nor entitle the neighboring owner to maintain an action for an injunction restraining the steam company from carrying on a business,in itself lawful.</p>

<p>Action upon ,a chattel mortgage.</p> <p>The opinion sufficiently states the case.</p>

Motion by plaintiff for a peremptory mandamus, compelling the city clerk to grant to it a license to carry on the business of auctioneer within the city of New York.

<p>Demuebee to complaint.</p>

<p>Partition — Intention of testator and owner of the fee that the' lands should he held — Intervention of an express trust.</p> <p>The will of a testatrix provided that “ When my youngest grandchild becomes of age, I do give, devise and bequeath all the rest and residue of my estate, both real and personal (which residue included certain premises.here sought to be partioned), unto my seven grandchildren, to be divided between them equally, share and share alike. I do order my executor or executrix, hereinafter named, to pay unto Jennie Buhl, Preda Buhl and Dora Buhl, three of the children of my deceased daughter, Helene Buhl, formerly Bornhagen, each the sum of $5 weekly until my youngest grandchild shall become of age ”. This granchild was aged thirteen.</p> <p>Held that an action to partition the residuary estate could not be maintained, both because it was the expressed intention of the testatrix to postpone a division until the youngest grandchild became of age, and also because the provision relative to the Buhl children created an express trust, whose purpose would be defeated if the court sanctioned a partition at the present time.</p>

<p>Action for the construction of a will.</p>

. This is an application by the above-named Freeman under section 2471a, Code, to compel the delivery to him of the books, papers, etc., pertaining to the office of fire marshal. . The application is directed against James EE. McGuire, mayor of the city, and Marcus B. Rathhuu, clerk in the. fire marshal’s office, upon the ground- that they are the ones who have the possession and are. refusing the delivery of said hooks, papers, etc.

<p>This action is brought by plaintiff to secure an absolute divorce upon the ground of the defendant’s adultery. The defendant has not answered or defended.</p>

Action to compel' the transfer by the defendant company upon its books' to plaintiff of sixty-nine shares of its stock, and to issue a new certificate therefor, etc.

<p>Appeal from a.judgment in favor of the'defendants.</p>

<p>Appeal from a judgment in favor of plaintiff.</p>

<p>Appeal from a judgment in favor of plaintiff,</p>

<p>Appeal from a judgment of a District Court in favor of defendant.</p>

<p>Appeal from a judgment of the District Court of the city of Eew York for the second judicial district, rendered in favor of the defendants. - , I</p>

<p>Appeal by the plaintiff from an order opening a default, made by the acting justice of the Municipal Court of the city of New York, borough of Manhattan, fifth district.</p> <p>The opinion states the' material facts.</p>

<p>Appeal from a judgment of the Tenth District Court.</p>

<p>Apbeax by the defendant from a judgment of the Municipal Court of the city of New York, borough óf Manhattan, first district, rendered in favor of the plaintiff, by the justice thereof, with- ■ out a jury.</p> <p>The nature of the action and the material facts are stated in the opinion.</p>

Appeal by the defendants from a judgment of the Municipal Court of the city of Wew York, borough of Manhattan, fourth district, rendered in favor of the plaintiff, by the justice thereof, without a jury. Action for work, labor and services.

<p>Appeal from judgment of the First District Court of the city of Wew York, rendered in favor of the defendant.</p>

<p>' Appeal from a judgment of the District Court in the city of New York for the fourth judicial district rendered in favor of the plaintiff/ '!'-.■/</p>

<p>Appeal from a judgment in favor of plaintiff and from an order denying a motion for a new trial.</p>

<p>Appeal from an order granting a bill of particulars.</p>

<p>Appeal from a judgment entered upon á verdict, and from an order denying a motion for a new trial.</p>

<p>Appeal from a judgment in favor of defendant.</p>

<p>Appeal from orders, one of which fixed the amount of an undertaking to he given to discharge the warrant issued herein, and the other confirming said order and refusing to vacate the same.</p>

<p>Appeal from "a judgment in favor of plaintiff, entered upon a verdict. _ • • ■ ¡</p>

<p>Appeal from an order of the Special Term.</p>