Volume 24 — New York Miscellaneous Reports

<p>Liquor Tax Law — The commissioner cannot arbitrarily fix the population of a village.</p> <p>. Where there has been no state, nor United States, census taken in a • village, or any enumeration of its population made, under the Liquor Tax Law (Laws of 1896, chap. 112), by the state excise commissione;, the fact that he has “ no doubt ” that its population exceeds twelve hundred cannot justify the action of a county treasurer in exacting $75 from a village applicant for a liquor tax certificate, and the proper fee is $50. The provisions of subdivision 7 of section 11 of the statute, authorizing the commissioner to make an enumeration “if the commissioner has any doubt as to the number of the population as ' affecting the amount of the excise tax assessed therein ”, merely mean that, if he has any doubt about the population, he may make an enumeration, and does not mean that he, in the absence of such an enumeration, may arbitrarily fix the population and the consequent tax.</p>

<p>Action to recover the amount of a savings bank deposit.</p>

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

<p>Charter of the Greater New York — Salary of the inspector of the Kings county buildings, levied before consolidation — Construction of section 10, chapter 378, Laws of 1897.</p> <p>Where the county of Kings has, before the consolidation of the Greater New York, included in its budget of January, 1897 and levied in its taxes of that year the salary for 1897, of the inspector of the Kings county buildings, fixed under a special statute, and has subsequently turned over the sum to the new city of New .York, the latter , takes the sum charged with the duty of applying it to the purpose for which it was raised; and the comptrollar of the new city of New York cannot refuse payment upon the ground that its board of assessment and apportionment has made no appropriation for tlje purpose,, nor upon the ground that the inspector of the coiinty buildings of Kings has never presented his claim for audit, as required by the charter of the Greater New York. The provisions of section 10 of the charter of Greater New York (Laws of 1897, chap. 378), relate to moneys coming from the cities which were consolidated, and it was not intended thereby that moneys, raised for the salaries of county officers in the county of Kings, should go into the common fund created by the section. ' '</p>

<p>Foreclosure — Stipulation in a mortgage authorizing a receiver pendente lite.</p> <p>Although a mortgage contains a clause providing for the appointment of a receiver of the rents and profits pendente lite, the court will not grant such an application in a summary manner, where no allegations are made as to whether the security is sufficient or insufficient to pay the debt.</p>

Mo,tion to compel plaintiff to assign a mortgage field by him, upon payment of the amount due upon said mortgage, and costs of this action.

<p>Benefit societies Certificate issued to one not in the list of the persons to whom a certificate might be issued — Assignment.</p> <p>After a benefit society, whose laws provided that no endowment certificate should be made payable to or be transferable by any other person than the husband, child, dependent, mother, father, sister, brother, aunt, uncle, niece, or nephew bf the member, had issued a certificate to á woman in favor of her son Karl Kult, she commenced to live with one Nelson as his wife, although she at all times had a legal husband living. She also surrendered her original certificate and procured a new one, payable to' Nelson as her husband. Her legal husband, after her death, assigned his rights, under the second certificate to Nelson. Held, that Karl Kult was entitled to the moneys, as Nelson was not in the list of persons to whom a certificate could be made payable or to whom it could be transferred, and that Nelson took nothing under the assignment from the legal husband.</p>

The issue in this action was the construction to he placed on the paragraph of the last will and testament of Nathaniel D. Higgins, quoted in the opinion. There was no dispute as to. any of the facts in the case, the only question being one of law (were plaintiffs entitled to. recover, as legatees, under said will of Nathaniel D. Higgins). This will was made, in 1878, and the testator died in January, 1882.

Action in equity to vacate an assessemeiit on. the lands of plaintiff levied to defray part of the expenses of a local improvement.

<p>Common carriers — Theft from a trunk, whose carriage was procured by fraud.</p> <p>A discharged employee, by falsely representing to a. railroad company that he was still employed by it, procured the free carriage of .his trunk from one station to another, subsequently followed it to the point of destination by a free passage, also obtained by & similar fraudulent statement and, after seeing his trunk on the platform of that station at about seven o’clock in the evening, told the station agent not to . take it inside as he Would call for it in a short time. He did not call for it and during the night its contents were stolen. Held, that the railroad company was not liable to him for the loss. .</p>

<p>Motion to set aside an .election of directors of'a railroad corporation.</p>

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

<p>Stay — A judgment for costs may be stayed by an undertaking.</p> <p>‘ Where the defendants have succeeded in defeating an action brought; to perpetually restrain them from obstructing a street and have been awarded costs, the plaintiffs are not entitled to a stay, upon their appeal, as there is nothing to stay except the judgment for costs and this may be accomplished by giving the usual undertaking on appeal.</p>

<p>Civil Service — Chap. 186, Laws of 1898, applies to the Greater New York — Amendment or repeal of its charter.</p> <p>Although the charter of,the Greater New York (Laws of 1897, chap. 378), contains provisions relating to the terms or tenure of office of all city officers or employees, the amendment to the Civil - Service Law (Laws of 1883, chap. 354), made by chapter 186 of the Laws of 1898, a general statute affecting the whole State, applies to the Greater New . York, and entitles the holder of a position, subject to competitive examination in the city civil service, to insist, under the terms of the amendment, that his .removal shall not be made until the reason therefor has been stated in writing and duly filed and until, he has had an opportunity to make an explanation.</p> <p>This construction of the statute of 1898 is not affected by section 1618 of .the charter of the Greater New York, providing that neither the charter, nor any section or portion of it, shall be deemed to" be repealed or amended by any act of the legislature unless it is so expressly stated, or the intent to do so is- unmistakable: .</p>

<p>Attorney's lien — Kon assignable cause of action — Settlement by client. • The provisions of section 66 of 'the -Code of Civil Procedure, as amended in'1879, expressly give to an attorney a lien upon his client’s cause of action, or counterclaim, from the commencement of the ac- - 1 tioh or the service of an answer containing a counterclaim, whether or not the cause of action is in its nature assignable; and where 'the client makes a direct settlement of a pending action in order to defeat the attorney’s agreed lien for one-third of any recovery, the attorney will be allowed to continue and prosecute the action, to the end that he may establish his lien.</p>

<p>The defendant, á saloon-keeper, was arrested and brought before a police magistrate in the borough of Brooklyn, charged with a misdemeanor in illegal sales of liquor in violation. of the Liquor Tax Law. Laws 1896, chap 112, § 31. The magistrate held the defendant for trial at the Second Division of the Court of Special Sessions, in the city of New York. The defendant now applies to a- justice of the Supreme Court to order the cause removed to the grand jury of Kings county, there to be prosecuted by indictment, basing his application upon the ground that, under section 2 of article I of the Constitution, he was entitled to be tried by a jury as a matter of right. It was urged, in opposition to the application, that by the 'amendment to the Constitution, adopted in 1870 (section 26 of article VI, now section 23 of article VI), Courts of Special Sessions were given such jurisdiction in the cases of misdemeanors as the legislature might provide; that the people adopted this amendment to overcome the effect of the decisions of the Court of Appeals (Wynebamer v. People, 13 H. V. 378; Hill v. People, 20 id. 303), which held that misdemeanors were triable by jury, as matter of right; and that the legislature, in the new charter, having given exclusive jurisdiction, without jury trials, to these courts to hear and determine charges of misdemeanor committed in said city, the act was within the legislative power under article VI, section 23 of the Constitution, as interpreted in the cases of People ex rel. Oomaford v. Dutcher, 83 H. Y. 240; People ex rel. Stetzer v. Eawson, 61 Barb. 619; Devine v. People, 20 Hun, 98.</p>

Demubbeb to complaint upon the ground that it appears upon the face of the complaint that the said complaint does not state facts sufficient to constitute a cause of action.

<p>Trusts — Investment — “ Net income.”</p> <p>The will of a testator directed his executor to set apart and invest four funds, each sufficient to raise a “ net annual income ” stated, to hold each fund in trust and to pay the income in each- case, to certain beneficiaries during life; he also directed that upon the death of the several beneficiaries the principal, in each case, should pass to other persons, but that, in case of their death before the life beneficiaries, their shares should fall into the residuary estate. He then directed ■that, after the separate funds had been created, ,the residuary estate should be divided at once among two persons, and that, if any bequest should fall into it under the prior provisions of the will, these additions should be divided in the same manner. He further directed his executor to invest the funds,. among other things, “ in such securities as executors and trustees are authorized by the laws of the state of New York to invest in.”</p> <p>Held, that it was the duty of the executor to establish at once separate funds which would, during the lives of the beneficiaries, produce the required incomes, and that the life beneficiaries would in each case be thereafter entitled to the whole of. that .income, whether greater or less.</p> <p>That ¡the executor must decide what sums, invested in securities in which investments might lawfully be made, would, under reasonably probable contingencies, produce the net income stated and that the court would not decide that question.</p> <p>That, by the phrase “ net income ” was meant the income, after the payment of taxes, commissions and a reasonable allowance for .the disbursements of the trustee in the execution of the trust.</p>

<p>Preferences on calendar — Foreclosures in First Department — Code Civ. Pro., § 793.</p> <p>Where a motion is made, under Rule X of the Special Term Rules of the First Department, for a preference in an action, of foreclosure, the provision of section 793 of the Code of Civil Procedure, requiring a party to serve with his notice of trial a notice that an ■ application will be made to the court, at the opening thereof, for leave to move the same as a preferred cause, does not apply; and although the notice of motion for a preference is served after the notice of trial, the preference will be granted where the defendant has been in no manner-prejudiced by the delay, or neglect, to serve both notices together.</p>

<p>Motion by plaintiff for injunction pendente lite.</p>

<p>Absolute divorce — Identification of the defendant by a photograph.</p> <p>Where the defendant in an action for an absolute divorce has been identified by accusing witnesses only through her photograph, the evidence should be clear that the exhibit is her photograph and there should be some corroborative evidence of her residence in the locality, where it is alleged that she committed adultery, or a description of her appearance and her age, to the end that her guilt may not rest wholly on opinion evidence.</p>

Action to compel the just ¡and equitable appprtio'nment of certain general city taxes levied upon certain premises or for a safe of said premises to pay the same.

■ Motion on the minutes to set aside a verdict for the defendant. The action is for damages to a horse and wagon, and for personal injuries. .

Motion'to vacate a decree of divorce and to relieve the defendant from her stipulation, withdrawing her answer, and for an order that her default be opened and that the issues be tried. *

<p>■ Construction of a trust in connection with, a will made oh the same day — Grandchildren included among “ my children.”</p> <p>Upon the same day a testator devised his property to his heirs-at-law and to his next of kin, according to the statutes of descent and dis- ■ tribution, and also separately created in one of his executors a trust in personalty for the payment of his debts and funeral expenses, with directions to the trustee to divide any residue among “ my children ”. He left a wife, nine children and three grandchildren, as to which latter it did not appear affirmatively that they were not the children of three different deceased children of .the testator. Upon a demurrer to a complaint, the question arose whether the grandchildren were each entitled to an equal share in a residue remaining in the hands of the trustee, With the children, or whether the latter took the whole. Held, that, assuming each grandchild to represent a separate deceased child of the testator, the grandchildren were each entitled to share equally with the children in the residue.</p>

<p>iFire insurance — Eight of agents of the insured to cancel a policy determined by the'insurer — Waiver of notice of cancellation.</p> <p>Insurance brokers, who were not agents for a fire insurer, wrote, at the instance of the owner, to an agent of the Insurer, who held its signed policies which be was authorized to issue without notice to the ' ■ company, for insurance on the premises of the owner, Thereupon this agent sent to the brokers a policy whose terms made brokers procuring insurance the agents of the insured and also provided for a cancellation by the insurer on five days’ notice; and the agent, in an accompanying letter, wrote that if his company declined the risk he would insure it in another company. Six days later the agent wrote the brokers,' who had at all times retained the policy, to return it as the insurer refused the risk. .The broker's mailed the policy back to the agent and about midnight on the day when the agent .received' it, or in the early morning of the next day, a part of the property was burned. In an action brought upon the policy by the insured.</p> <p>Held, that the brokers were agents of the insured alone, with general authority to procure for him adequate insurance, that this gave them : the right to cancel or return a determinable policy, that they might : waive the five days’ notice by the insurer of cancellation and that, when they returned the policy to the agent by mail, its' cancellation was effected.</p>

This is a motion by Thomas Ilirley to vacate the decision of the commissioners appointed to determine the necessity of the proposed highway and to assess the damages of the laying out and opening of the same if such highway were deemed necessary. The decision was in favor of laying out said highway.

<p>Action for the enforcement of a lien upon real estate for moneys advanced for payment of taxes, etc.</p>

<p>Action on a promissory note.</p>

<p>Action upon a contract.</p>

This action is brought by plaintiffs to have declared void the provisions of chapter 111 of the Laws of 1897, being an act for the relief of tax collectors of certain towns of Oneida county who lost tax moneys collected by them respectively through the failure of the Fort Stanwix Rational Bank, of Rome, in which said moneys were deposited, and to restrain the various defendants from proceeding under said act to levy taxes upon the property of the town of Western, and pay the…

<p>Motion to strike out answer as sham.</p>

<p>Conspiracy — Facts showing the probability thereof and reasons therefor will not be stricken out.</p> <p>Where the complaint in an action for a conspiracy whereby the defendants are alleged to have obtained street cars without payment, alleges the purpose sought to be accomplished by obtaining the cars, and the reasons why the defendants formed the- plan of so doing, the court will not strike out as irrelevant and scandalous other paragraphs which state facts bearing upon the probability of and furnishing a reason for the purposes alleged to have been formed by the defendants.</p>

<p>Trusts — Eights o£ remaindermen, to obtain a construction of a will — Estoppel.</p> <p>Mere remaindermen, after a life interest in. a parcel held by trustees for the benefit of a. son of a testator, and whose mother, a daughter of the testator, a trustee for the son, and herself absolutely entitled to one-half of the estate, executed in her lifetime, both individually and as trustee, an agreement, approved by the surrogate, dividing the estate between herself and the son, which provided that his share should remain in the hands of the trustees, and which acknowledged satisfaction. of all her claims against the • estate, except the parcel in question, are not in a position to maintain an action for a construction of the will by which practically they seek to attack the validity of the trust in favor of the son and the acts of the trustees and to oust the surviving trustee, as the rights of the remaindermen, if any, are énforcible at law.</p>

<p>Appeal from a judgment of the General Term of the City Court, affirming a judgment of the Trial Term, rendered on the verdict of a jury, in favor of the plaintiff.</p>

<p>1. District Courts of New York — Removal of cause.</p> <p>Where a defendant, who has, upon the return of the summons in an action in a District Court of the city of New York, applied for the removal of the cause to the City Court, withdraws the application and obtains an adjournment, he thereby loses b's .right to a removal."</p> <p>Evidence — Credibility of witness.</p> <p>Where a question is put to a witness, on cross-examination, on the part of the defendant, apparently to elicit evidence in support of an affirmative defense and from that point of view is properly excluded, the fact that such an inquiry was admissible as bearing upon the credibility of the witness is not sufficient ground for a reversal where the attention of the trial justice was not called to the fact that the question was put for that purpose.</p>

<p>Appeal from a judgment of the Fourth Municipal Court, borough of Manhattan, in favor of the plaintiff.</p>

<p>Appeal from -a judgment of the Seventh Municipal Court, borough of Manhattan,' in favor of the defendant.</p>

Appeal by the plaintiff from a judgment' of the Municipal Court of the city of Hew York, borough of Manhattan, fourth district, rendered in each of these actions, in favor of the defendant, by the justice thereof, without a jury. The opinion states the nature of the action and the material facts.

Appeal by the plaintiff from a judgment of the Municipal'Court of the city of Mew York, borough of Manhattan, first district, rendered in favor of the defendant, upon a trial had before the court, 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 the city of Yew York, borough of Manhattan, eleventh-district, rendered in favor of the plaintiff, by the justice thereof. Also, motion by the defendant, under section 3064 of. the Code of Civil Procedure, to set aside the judgment, and for a new trial. The opinion states the material facts,

Appeal by the defendant from a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, seventh district, rendered by the court in favor of the plaintiff, by default. The opinion states the material facts.

<p>District Court of Hew York — Jury trial.</p> <p>Where the record of an action in a District Court of the city of New York shows that the defendant demanded a jury trial at the time of the joining of an issue of fact, in Conformity with section 1372 of the Consolidation Act (Laws of 1882, chap. 410, as amended in 1891), a judgment rendered by the justice alone, in favor of the plaintiff, must be reversed, as the justice has no power to deprive the defendant of his statutory right to a jury trial.</p>

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

<p>Appeal from a judgment rendered in the Municipal Oourt of the city of New York, borough of Manhattan, first district, in favor of the plaintiff.</p>

<p>Trespass in the Supreme Court, after a Justice’s Court action discontinued — Costs to plaintiff — Trial of an “ issue of fact ” — Code Civ. Pro., § 3235—Possession does not bring “the title to real property in question.”</p> <p>Where, upon the trial in the Supreme Court of a new action for a trespass on. lands, a former action in a Justice’s Court having been discontinued upon the interposition of a plea of title, the plaintiff’s allegation, that, at the time of the trespass she was “ the owner and in possession ” of the lands, is denied by the answer, and she, after testifying to her possession, is defeated on the law, because her cross-examination shows that the lands were actually in the possession of her tenant, there has been a “trial of an issue of fact” which entitles the plaintiff to costs under section 3235 of the Code of Civil Procedure, in the absence of a' certificate “ that the title to real property came in question on the trial ”.</p> <p>The title to real property does not come in question on the trial of an action for trespass where the .only issue tried relates to the possession of the plaintiff, as a claim of possession is not a claim of title, and is an issue which is within the jurisdiction of a Justice’s Court.</p>

<p>Principal and agent — Procuring cause of a sale of stock — Commissions.</p> <p>The mere fact that a broker brought certain stock, which was for sale, to the attention of one McCabe and that McCabe, of his own motion, brought the matter to the attention of one Dennison, who subsequently bought the stock of its owner, does not entitle the broker to recover commissions of the owner, as nothing which the broker did was the procuring cause of McCabe’s communication to Dennison, nor was that communication directly connected with any work done'in the agency. ,</p>

<p>Motion by Elsie E. Mooney, the owner of the equity of redemption in mortgaged premises and defendant in this action to foreclose the mortgage, to set aside the sale of the premises had under the decree, on the ground that the plaintiffs’ attorney failed to - serve notice of such sale upon her attorneys as required by their written notice of appearance for her in the action, such notice containing a waiver of “ service of all papers except notice of sale and of surplus in this action which are to be served upon us at our office, No. 150' Nassau street, New York city.”</p>

<p>Motion for a new trial on newly-discovered evidence.</p>

<p>Voluntary payment of taxes on property in part purchased with pension money, etc. — Taxable margin.</p> <p>Voluntary payments of taxes, made during five years, upon land assessed at only $1,050, although costing, including improvements, at least $5,200, cannot be recovered by .the owner upon indistinct proof that from $2,700 to $3,000 of the purchase money and expenditures were derived by him from bounty, wages and pension money which he had received as a soldier. The court cannot assume that there is not a taxable margin in the. property.</p>

<p>Action to compel a set-off of a judgment recovered by plaintiff against defendant Palmer, against two judgments recovered by said defendant against said plaintiff.</p>

<p>Action to have declared void an assessment upon plaintiff’s lands and to recover back the taxes paid upon said assessments, upon the ground that said premises were purchased with pension moneys.</p>

<p>Motion to charge defendant with costs.</p>

<p>Telephone companies — Refusal to furnish facilities to rivals — Suspension of exercise of franchise — Mandamus.</p> <p>The provisions of section 103 of the Transportation Corporations Law (Laws of 1890, chap. 566), enacting that “ Every such (telephone) corporation shall receive dispatches from and for other * * * telephone lines or corporations * * * and, on payment of the usual charges by individuals for transmitting dispatches as established by the rules and regulations of such corporation, transmit the same,” do not authorize the court, upon the mere refusal of a telephone corporation operating a line in a village and extensively outside thereof, to place a telephone in the office of a village telephone Company and establish connections therewith, to compel such, action by.a writ of peremptory mandamus; and' the remedy of the party aggrieved is either by an action for the penalty or by one for damages.</p> <p>Such a refusal is not an absolute refusal to transmit the message. The contention that the refusal of the corporation constitutes a suspension of the exercise of its franchise is not tenable, as the refusal is only one to employ the franchise for the' benefit of a particular person, and hence affords no ground of action.</p>

<p>Action to foreclose a mechanic’s lien.</p>

<p>Trust for separation of husband and wife — Resumption of marital relations.</p> <p>' Under a tripartite agreement of separation, a husband deeded real estate to a trustee upon condition that he pay the income to the wife for life and upon her death reconvey it to the husband or to his heirs. The parties (became reconciled and the husband, upon his death, devised the property to his wife. In 1896 she leased the property for ten years and, dying in 1897, devised the property to her heirs.</p> <p>Held, that the resumption of marital relations avoided the agreement of separation, that the wife took under the will of her husband and that her lessee was entitled to hold as against the heirs of the husband, claiming under the trust for a separation, and to whom the trustee had conveyed after her death.</p>

<p>Suit in equity by a taxpayer to have the contract entered into between the defendant officials and the defendant company annulled for alleged illegalities and frauds.</p>

Action by a taxpayer to have annulled a contiact made on December 17, 1897, by the town board of «the town of Jamaica, Queens county, for the lighting of a district of the said town. The said town is now part of the city of New York.

Action by a taxpayer to annul the action of the town board of the town of Hempstead, Queens county, in establishing a hghting district and making a lighting contract therefor for ten years. Part of the territory of the district is within the incorporated village of Lawrence.

<p>Action for partition.</p>

<p>Action for malicious prosecution. Motion on the minutes for a new trial.</p>

<p>Libel — Proof of falsity — Malice — Damages.</p> <p>In an .action for libel, the plaintiff need not and cannot giye evidence of the falsity of the libel, except In rebuttal, where the defendant has pleaded the truth *3.8 a defense, and has introduced evidence thereof.</p> <p>It is only in the case of a qualifiedly privileged utterance or publication that the plaintiff may prove its falsity, and then in order to show malice in the defendant —a necessary ingredient of such, a cause of action.</p> <p>In actions for tort the actual damage to the plaintiff cannot be diminished or mitigated by proof of a lack of malice in the defendant, as it is only punitive damages that can be thus mitigated or prevented.</p>

Motion to set aside a verdict for the plaintiff and grant the motion to dismiss the complaint made at the close of the testimony and reserved. Action for personal injury. The plaintiff hurried across the street to hail a cab, and as he stepped from the roadway to the curb stumbled over a carriage-stone and hurt himself.

Action against one of the underwriters to* a policy of fire insurance to recover of him his proportion of the loss. The said underwriters did business and issued policies under the name Electric Oity Lloyds.

The defendant was arrested for an alleged assault, committed upon the person of his wife within the corporate limits of Malone village. The warrant for his arrest was issued hy Justice of the Peace Martin elected as such for the town of Malone, before whom the relator was arraigned, tried, convicted and sentenced to pay a fine of $25, stand committed until paid, not exceeding twenty-five days.

Appeal by defendant from a judgment rendered by a justice of the peace of the city of Lockport, in favor of plaintiff.

The following petition was presented to the justice of the peace: “ To William Austin, Justice of the Peace of the town of Manlius, Onondaga county, N. T.: The petition of Mary A. Wands, by A. S. Wands, agent, of Fayetteville, town of Manlins, county of Onondaga, N. T., shows that she is the ’owner of the following premises, situate in said town of Manlius, to-wit: One blacksmith shop, situate on the north side of Genesee street, in the village of Eayettevillé, E. T. That a…

<p>Municipal corporations — Bight o£ mayor to vote as a. member of the common council.</p> <p>Under the provisions of a city charter (Laws of 1888, chap. 40, as amended) providing that the common council shall be composed of the mayor and aldermen, that every alderman shall have a vote in the common council, that the. presiding officer (the mayor, if present) ■shall in case of a tie have a casting vote, that no appointment to office shall be made except by a concurring vote of a majority of all the members of the common council in office, that the common council shall appoint a city clerk and that the mayor shall sign all appointments to office, the mayor, although there be no tie upon the question of the appointment of a city clerk, has a right to vote on the appointment and his vote, creating a majority, entitles the appointee to the office and its books and papers.</p>

This was an- action brought in a Justice’s Court of the, town of Thompson, in said county of Sullivan, in December, 1897. After issue was joined a jury trial was demanded, and a jury summoned. The jurors were drawn, and the trial proceeded, and a verdict rendered in favor of the defendant, upon which judgment was entered. It appears by the justice’s return that the men drawn and who rendered the verdict were not sworn — none of them.

Action ' to compel the removal of a wharf built upon lands covered by the waters of the Hudson river upon the ground that it is a purpresture.

<p>Motion for a reargument.</p>

Action for in junction,, to restrain interference by the defendants. with plaintiff’s business as a gasfitter, and for damages.

Action by a judgment creditor to set aside a general assignment of the defendant corporation upon the groiind of. fraud.

<p>Denial on information and belief — When not frivolous.</p> <p>. A verified denial, by the maker of a note, of any knowledge or information sufficient to form a belief of the truth of the allegations of the complaint of the payee that he made it is not frivolous, although ” it may be false.</p>

Motion to set aside an order of reference and the ¡report of the referee in an action for sequestration and distribution of the property of a domestic corporation.

Demubbeb by tbe plaintiff to a portion of tbe answer of the defendant in an action for alleged damages by reason of defendant’s returning an execution nulla bona, when it is alleged, that the defendants named in the execution had personal property from which the execution could have been collected.

Motion to confirm the report of a referee upon a reference to settle controversies .arising between creditors of the Punnett Cycle. Company and receiver of the company.

Motion by plaintiffs to compel the payment to them of certain moneys retained by the attorney of record for said plaintiffs in the above-entitled action.

<p>Partition — A purchaser will not be allowed to rescind for slight encroachments, but may be allowed for remedying them.</p> <p>A purchaser upon a sale in partition will not be relieved from his purchase of a very large and valuable brewery property, and its fixtures, merely because the property encroaches a few inches on adjoining property, nor because an inclosing wall, which might easily be removed, encroaches slightly on a street — an encroachment which has become permissible because not attacked by the city of New York, under chapter 610 of the Laws of 1896, within one year from the passage of that act.</p> <p>In such a case, where the proof of practical location and adverse possession is substantially complete and justice requires the contract of purchase to stand, the court will give weight to equitable considerations and will reserve a part of the purchase price, to the end that a referee may determine the expense to which the purchaser will be subjected for removal and repair on account of encroachments and such an amount will be allowed him.</p>

<p>Street railways — Mandamus to open a street, to change the motive power, refused upon conflicting allegations.</p> <p>Where, upon an application by a street railway company to compel a city commissioner of public works to issue to it a permit to open an avenue, on which, there are four tracks, in order to make an authorized change of the motive power from horse-power to electricity, the papers presented show disputed allegations and conclusions in regard to the necessity, under the Railroad Law, of the proposed excavation and conduit, the necessities of the situation, the uses of the avenue and of its buildings, the feasibility of using the tracks of an existing railroad now operated by electricity, the damage to the subterranean structures belonging to the city, and also as to whether a majority in value of the property owners have consented to the change in the motive power, a peremptory mandamus will be refused, as it will never be issued except in a case of clear legal right.</p>

<p>This is an action to recover the amount of a certain'policy of life insurance issued'by the Manhattan Life Insurance Company.</p>

<p>Greater New York charter — Bight of a former assessor, a veteran, to reappointment to a “ like position ” in the new city — Mandamus.</p> <p>A veteran, who was appointed an assessor of the city of New • York, under section 865 of chapter 410 of the Laws of 1882, is protected in his position by chapter 821 of the Laws of 1896, and can only be removed for cause; and as the position of such an assessor and that of an assessor of the Greater New York are. “ like ■ positions ”, with the territorial jurisdiction merely extended, such an incumbent is entitled, under section 127 of chapter 378 of the Laws of 1897, to compel the mayor of the Greater New York, by peremptory mandamus, to assign him to serve as a member of the board of assessors of the new municipality.</p>

<p>Absolute divorce — Insufficient proof of adultery.</p> <p>In an action brought by a woman for an absolute divorce, her ■ brother, and only witness, testified that at a time of night, not stated by him, he went with the defendant to his rooms; that the defendant went into a connecting room and said “ I. find I have a visitor; ” that the witness then looked into the connecting room and" saw a woman in bed, with her arms hanging out and apparently undressed; that the defendant said to the witness that she was the woman he had been telling, him about; that the witness then went away, and that the defendant had, during the evening, told him that he was keeping a woman, whom he named. The defendant joined issue, but offered no confuting evidence.' ....</p> <p>Held, that the confession of the defendant was somewhat suspicious and that upon the whole evidence a divorce must be refused.</p>

This is a motion for an injunction to restrain the defendants from constructing and operating a subway over that now owned and operated by the plaintiff in West Fayette street, in the _ city of Syracuse, between West street and Onondaga creek. The material facts appear in the opinion.

Application for judgment upon the reversal of the judgment of the Court of Appeals and Supreme Court of the state of New York, by ithe Supreme Court of the United States, and for costs and an additional allowance,

<p>Summary proceedings by purchaser at tax sale to remove the owner from possession.</p>

<p>Motion before trial to dismiss an. indictment for an alleged attempt to bribe a grand juror, one Frederick GL Isles.</p>

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

Motion fox an injunction, in an action by a taxpayer, to restrain payment or collection of a judgment against the city. • Motion for a mandamus to enforce payment by the comptroller of said judgment.

<p>Motion to modify judgment by striking out certain provisions.</p>

<p>Appeal from a judgment ini favor of plaintiffs.</p>

<p>Appeal from a Special Term order requiring defendant to furnish a bill of particulars.</p>

<p>Money had and received — Complaint — Demurrer — Surplusage.</p> <p>Where a complaint sufficiently states a cause of action for money had and received and contains an allegation of a demand for repayment, the fact that the complaint contains other matters does not make it demurrable, as the extraneous matters may be regarded' as surplusage,</p>

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

' Appeal from a judgment in favor of plaintiff, .entered upon a verdict and from an order denying a motion for a. new trial.

<p>Counterclaim — Failure of proof — Code Civ. Fro:, § 541.</p> <p>Where a counterclaim upon notes, alleged to have been delivered to the pláintiff for collection under an agreement that he should retain a part, and that he should return to the defendant a part, of . the collected proceeds, is supported only by proof that the notes were delivered to the plaintiff to pay the price of certain insurance premiums, with an agreement to return to the defendant a part of the premiums, there is no mere variance, but there is an entire failure to prove the counterclaim, within the meaning of section 541 of the Code of Civil Procedure.</p>

<p>Appeal from judgment and order directing judgment on account of the frivolousness of defendant’s demurrer to the complaint.</p>

<p>Appeal by defendant from a judgment entered upon the decision of a justice.</p>

<p>Deference — Many items, forming the consideration of notes sued upon, do not make the action referrable.</p> <p>The fact that the items, which make up the consideration of promissory notes, are numerous, does not make an action upon the notes one upon an account and referable in a compulsory manner.</p>

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

<p>Appeal from an order in supplementary proceedings.</p>

<p>Life insurance — Breach of warranties — Where the application is made a part of the policy, it should be admitted in evidence.</p> <p>Where an action upon a policy of life insurance is defended, among other things,' for breaches of express warranties of the application, it is erroneous for the court, where the policy makes the application a part of the policy, to permit the plaintiff to put in evidence the policy only and to omit to offer the application; and such a course is particularly objectionable where the second part of the application, subsequently offered in evidence, identifies the first part, in regard to which first part some answers of the insured to material questions were concededly false.</p>

<p>Conversion. — Waiver.</p> <p>Transactions, between the owner of fruit and a person to whom it had been delivered by mistake, considered by the court insufficient to show an election by the owner to waive its right to maintain an action of conversion against the third person, who had sold a part of the fruit and refused to surrender ’the remainder.</p>

<p>Appeals from orders denying plaintiffs’ motions for a preference. ■</p>

<p>Action for personal injuries — Bill of particulars as to nature and location of injuries — Resulting disbursements incurred.</p> <p>Where the complaint, in an action against a street railway company for personal injuries, describes the injuries in general words, - does not state the particulars of the nature of the injuries, nor even upon what part of the body they were received, a bill of particulars may properly be ordered, requiring the plaintiff to give these details.</p> <p>Semble, that the plaintiff may be required to state what necessary disbursements she made, as alleged in the complaint, because of her injuries, and to give the names and addresses of the persons to whom she made such disbursements.</p>

<p>Motion by defendants Sigison, Chester and Bonnell for security for costs in an action of foreclosure.</p> <p>• The action was to foreclose two mortgages on the same premises, one given and the other assumed by defendant Bills, both of which had been owned by plaintiff’s testator. Plaintiff individually alleged ownership of one by recorded assignment, alleging the moving defendants to claim its ownership by prior unrecorded assignment; plaintiff, as executor, alleged ownership of the other, alleging the moving defendants to claim ownership under a recorded assignment, which he alleged to be testamentary in fact and law, and revoked by his testator’s subsequent will, which appointed him executor.</p> <p>The motion for security for costs was based on the nonresidence of the plaintiff, and statements in the moving affidavits that the plaintiff had no property except the alleged claim in suit. Other facts appear in the opinion.</p>

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

<p>Power to sell real estate — Increasing income of life tenant by a sale of lands taken by her in exchange. , , .</p> <p>A testator, who. constituted his wife an executor' of his will, gave his executors no power to sell his real estate, but gave his wife' the use of his residuary estate, and also “ the privilege' of selling, exchanging or disposing óf all my Cornwall property- as she may desire1, and the proceeds thereof to be invested to best advantage during her lifetime, and then to descend to my children, share and share alike.” The wife exchanged the Cornwall property for lots in New York city and took title to, the lots by a deed -to herself as executrix and to . her coexecutor..</p> <p>■ Held, that, for the better investment of the fund, and in order that, ■it might, produce a higher income to .'the wife, the executors had ■ power to. sell the lots in New York city. .- .</p>

<p>-Motion to discontinue, without costs, an action commenced against the defendants, as copartners, it appearing, subsequent to the joinder of issue, that the debtor was a corporation and not a copartnership. Defendants severed in their defenses and answered by separate attorneys.</p>

<p>1. Assessment — Illegality of roll must appear affirmatively—. Consent of assessors.</p> <p>Where the report of a referee, to whom a contested assessment of real estate has been referred, although finding the assessment-roll illegally prepared, contains no finding of any fact which shows the illegality, the court has no power, although the counsel for the assessors consents thereto, to strike the whole tax from the roll.</p> <p>Z. Excessive assessment — Malice.</p> <p>Proof deemed sufficient to indicate that an assessment of real property was excessive and that one of the assessors was influenced by malice in making it.</p>

<p>Stock corporations — Liability of stockholder — Temporary injunction against the corporation does not excuse a failure to allege the return of an execution unsatisfied — A final order of dissolution cannot be alleged by a supplemental complaint in aid of the original complaint.</p> <p>It is a condition precedent to the maintenance of an action against stockholders of a stock corporation, whose stock has not been fully paid in," that an execution against the corporation should have been returned unsatisfied, and an omission of the complaint to allege this fact is not excused by an allegation that, by the connivance of the stockholders, a preliminary restraining order, appointing a receiver, has been granted in proceedings taken for the voluntary dissolution of the corporation. The plaintiff will not be permitted to allege by a supplemental complaint that, since the commencement of the action, a final order dissolving the corporation has been granted, as such an allegation sets up a new and different cause of action, which cannot be allowed to aid the defective complaint.</p>

<p>Hearing of exceptions taken on the examination of the defendant before trial. ' .</p>

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

<p>Life insurance — Conditions precedent to the payment of a surrender value, that the insurer should have elected to pay it and should have found the insured totally and permanently disabled — Waiver.</p> <p>Under a certificate of membership in an assessment life insurance company, providing that “ In the event of said member becoming totally and permanently disabled, and the determining of such disability by the medical director and board of directors of said associa- • tion,” it would pay, at its option, and at the request of the member, a sum equal to one-half of the face of the certificate, an assignee cannot maintain an action for such surrender valué where there is no proof that the medical director and board of directors of the association had. determined the disability of the member, nor that the association had elected to terminate the risk by paying one-half of its face; nor is a waiver of these conditions precedent shown by proof "that, after the commencement of the action, the association wrote letters to the assignee in which it was stated that it was* necessary, as a first step, for the member to state in writing that he was, in his own opinion, permanently and totally disabled from some organic disease (naming it) which threatened the expectancy of life and that, when such a statement had been furnished to the association, it “ will send you (the assignee) the necessary papers to prove your claim,” or “ alleged disability.”</p>

Motioh by plaintiff for an order directing that a writ of peremptory mandamus be issued commanding the defendants composing the election board, to reconvene and recount the ballots for the office of supervisor at the town meeting of the town of Richland, held on the 1st day of -March, 1898.

<p>Pleading — A denial of each and every allegation of a complaint “ except as herein admitted, qualified or explained,” is frivolous.</p> <p>A fifth defense, to an action to recover damages for an alleged unlawful eviction, which “ denies each and every allegation set forth in said complaint except as herein admitted, qualified or explained,” must be stricken out as frivolous, as such an uncertain form of denial is not permissible under the Code of Civil Procedure.</p>

<p>Life Insurance — Mutual Companies —• Policyholders in — Constitutionality of Laws of 1896, chapter 850.</p> <p>•A policyholder in a mutual life insurance company is not a partner in the company.</p> <p>Policyholders in mutual insurance companies formed since the creation of. the insurance department in 1859 are subject to legislative control in their method of organization or reorganization and doing business.</p> <p>Chapter 850, Laws of 1896, is constitutional.</p>

Mottoes for certificates that it is reasonable that the charges of misdemeanors so made shall be prosecuted by indictments.

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

<p>Express trust — Void, if limited on years — Vesting — direction to distribute at a future time — Election under a will — Estoppel to contest.-</p> <p>The will of a testator; by its second and third clauses, gave to his daughter, and only heir, the use. of a farm for life, with remainder to one of her own daughters. The fifth clause gave all his residuary estate to a trustee, not the executor, in trust for the testator’s daughter and his grandchildren “to be divided and" distributed among them, share and share alike, on December 1, 1910 ”. The sixth clause directed the trustee to pay the income of the trust property to the beneficiaries semi-annually. Held, that the fifth and sixth clauses could not be construed separately, but must be taken together; that, when so taken, they created an express trust to receive and apply rents and profits, which trust was void because it was not limited upon lives in being, but upon years.</p> <p>That the contention, that, if the trust was illegal, then the property vested in the grandchildren, was untenable, as there was no gift and merely a direction to distribute at a future' time. It further appeared that the daughter of the testator accepted, under the will, her life estate in the farm, some, personal property on it and some income from the trust estate. Held, that this did not constitute an election upon her part to take under the will and that she was not estopped from contesting the validity of its fifth and sixth clauses.</p>

<p>' Injunction — Trade name — A general assignment does not pass the. assignor’s right to use his own name.</p> <p>A business had been conducted under the name of “ Charles Bellows and Company ” from 1853 to 1878, when the partnership and Charles Bellows, individually, made general assignments in the ordinary form. About twenty-five years later the general assignees assigned to the plaintiff, a son of Charles B'ellows, the right to use both names — that of Charles Bellows, provided- that any such right existed. After 1878 Charles Bellows continued the business as “ Charles Bellows, Agent ” for his wife M. B. Bellows, until his death. Thereafter, the words “ M. B. Bellows formerly ” were prefixed to the Sign and, by her will and a transfer from her, the business passed to the defendants, who represented themselves as.successors to the business of Charles Bellows, Agent.</p> <p>Held, that under a general assignment, in the usual form, the right of an insolvent debtor to use his own. name did not pass from him; and that the plaintiff was not,- on the facts and in the absence of any evidence of fraud or confusion, entitled to an injunction restraining the defendants from using the name “ Charles Bellows ” in the manner stated.</p>

<p>Conversion — Counterclaims, improper under Code Civ. Pro., § 501 — Perm of demurrers to counterclaims demanding affirmative judgments— Code Civ. Pro., •§§ 490, 496.</p> <p>■ In an action for the conversion of, the plaintiff’s moneys, intrusted as alleged, to the defendant for investment in the stock.of a corporation proposed to be organized by the defendant out of á partnership in which he was a member, counterclaims demanding affirmative judgments, were interposed; first, that after the payment of the sum in question, as alleged, on the plaintiff’s subscription to the stock, he failed to pay a large balance due, by reason of which, with his consent, the coloration was abandoned and he agreed that the payment might remain in the business of the partnership until such time as its business would permit a withdrawal of the payment, which time never arrived; second, that the defendant subsequently became the sole owner of the partnership and the plaintiff became an employee and that he violated the latter contract by engaging in other business, by failing to return moneys collected and by settling accounts for less than the amount. due; and, third, for goods sold and for others not returned. The plaintiff demurred to each counterclaim on the ground that “ It is not of the character specified in section 501 of the Cbde of Civil Procedure ”.</p> <p>Held, that the counterclaims were improper, as none of them stated-a cause of action arising out of.the contract or transaction set forth in' the complaint, or connected with the subject of the action. That the form of the demurrer was insufficient under sections 490 pad 496 of the Code of Civil Procedure, as the particular defects in the counterclaims were not specifically pointed out, as required in a demurrer to a counterclaim which demands an affirmative judgment.</p>

<p>Criminal law — Power of city magistrate.</p> <p>A city magistrate has no power to commit a person, on summary conviction for disorderly conduct, for a definite period of imprison- ■ ment, but only for a period upon default of sureties for good behavior, and the continuance of the imprisonment is dependent upon failure to give sureties.</p>

The application was one to . continue preliminary injunction .pending the action. Moving papers alleged that the defendants were constructing a building, situate at the southeast corner of Elm and Duane streets, in the city of New York, contrary to plans approved by the commissioners of buildings for the boroughs of Manhattan and The Bronx.

The plaintiff, a builder, brought the action, by foreclosure of a mechanic’s lien to recover the final payment for the construction of a building for the defendant. .. . ; The defendant set up as a counterclaim damages for the failure of'the plaintiff to complete the building within ..the time agreed upon, occasioned by his refusal to obtain- from the commissioner of public- works of the city a,“ permit ” to construct and maintain an areaway excavated in the street fronting…

The parties interested in this controversy were brought into court by a citation duly issued upon a petition of the assignee, asking for his final accounting.

<p>Motion for an order dismissing the complaint.</p>

<p>Will — Partition — Power of sale to executors.</p> <p>Where a will devises the testator’s real estate to his executors to sell, pay certain legacies and hold the residue' of the" proceeds in trust to pay to the testator’s wife, and daughter the income during their lives and provides that the remainder of the trust fund be disposed of according to the terms of a codicil which the testator designs soon to make and the testator dies leaving no codicil to such will, the , remainder 'in said trust fund passes immediately on the testator's death to the testator’s- widow and next of kin, and an action in partition may not be brought by one who alleges generally that he and others are seized of the property of said testator.</p>

<p>Demurrer to complaint.</p>

<p>Demurrers to complaint.</p>

<p>Civil Service — Status of a veteran who seeks reappointment — Mandamus.</p> <p>A veteran employed for a definite period who seeks re-employment in the civil service must make known to the appointing officers his status as a veteran, and apply, setting forth his claim as a veteran. If this is not done, mandamus should not issue to compel his appointment.</p>

Motion to cancel notice filed with county clerk,, as required by subdivision 1 of section 649, Code Civil Procedure, where attachment is levied upon real property. • •

<p>Motion to vacate attachment on the ground that the summons issued to accompany the warrant did- not specify the name of the ■county where plaintiff desired trial to be had, as required by section ■ .417, Code of Civil Procedtire. Summons was issued but not yet served when attachment was applied for.</p>

<p>Motion to continue injunction and for the appointment of a receiver.</p>

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

<p>This is an appeal from a judgment rendered before John F. Rogers, a justice of the peace of the city of Utica, on the 15th day of March, 1897, in .favor of plaintiffs for $22.65 damages and costs. The action was brought to recover damages against defendant for' his refusal to put them in possession of a house and lot in the city of Utica, which plaintiff claims to have rented from him. De-. fendant denied that the contract was made, and claims- that the justice adopted an incorrect rule of damages.</p>

This is an appeal from a judgment rendered by E. S. Williams, a justice of the peace of the town of Kirkland, ón the 7th day of May, 1897, for $41.95 damages and costs in favor of plaintiff and against defendant. Plaintiff sought to commence the action by the service of a summons and verified complaint. The affidavit of verification contained no'venue.

<p>Attorneys — Justices’ Courts — Verification of pleading—Appearance.</p> <p>In a Justice’s Court, a complaint verified by an attorney is a sufficient verification by .plaintiff’s agent, such attorney being the agent of the plaintiff.</p> <p>Where the affidavit of verification states that the deponent is the attorney for the plaintiff, this is sufficient evidence of the authority of such attorney to appear for the plaintiff.'</p>

Motion to punish an assignee of an insolvent corporation for contempt in refusing to deliver to the receiver, the .property of the corporation which was in the possession of said assignee under the assignment and to compel such delivery.

<p>Demureeb to an indictment for conspiracy.</p>

<p>1. Bribery — Promise of city work — Penal Code, § 72.</p> <p>An indictment for bribery which alleges that a commissioner of city works, having power in the premises, agreed to employ a debtor of his firm, or some one acting in the interest of the debtor, on city work, provided the debtor would not further contest the firm claim and would give notes for it, to be payable after the first payment on the city contract, and which further alleges that the debtor gave the notes, received, by another, the promised employment from the city and paid the notes, sufficiently alleges an act of bribery within section 72 of the Penal Code.</p> <p>Z. Same — Charging more than one crime.</p> <p>The fact that the indictment alleges the employment by the city of a person in the interest of the debtor and states that he was employed without any advertisement for proposals or competition, does not charge an additional crime; nor any crime, where the indictment does not state that the advertisement and competition were required by law or that any duty in that respect was devolved upon the commissioner.</p>

<p>Application for the revocation of a liquor tax certificate.</p>

<p>Motion to set aside ex parte order directing delivery over by warehouse company of property replevied by the sheriff.</p>

Application by commissioners appointed herein to acquire title to certain- lands., for a taxation of costs and for an additional allowance under the statute.

<p>Municipal corporations — Not liable for negligence of an employee engaged in performing a governmental function.</p> <p>The statutory duty, imposed by section 704 of chapter 410 of the Laws of 1882, upon the commissioner of street cleaning of the city of New York of removing from the city, or otherwise disposing of garbage, etc., as often as the public health may require, is a governmental function performed in the interest of the general welfare and . the city is not liable to one who is injured by the negligence of a driver who was engaged in removing waste paper and garbage from houses on a' city street. ■</p>

<p>Taxation — Long Island City — Assessment-roll must show the quantity of the land assessed.</p> <p>The second column of an assessment-roll of lands in Long Island City must show' the quantity of the land assessed, and this, whether the assessment be, in form, to the name of the resident owner or of the real property itself and whether the property is owned by a resident or nonresident; and where there is a failure in this respect, the assessment and tax will be cancelled at the instance of mortgagees of the premises assessed.</p>

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

<p>1. Set-off — His individual liabilities cannot be set off against an executor.</p> <p>Claims against an executor or administrator as an individual cannot be offset against claims which exist in his favor in his representative capacity.</p> <p>Z, Counterclaim — Conversion of pledged securities — Effect of tender — Party not in possession of securities.</p> <p>In an action brought by an assignee upon an- agreement compromising certain claims, the answer alleged as a counterclaim that when the agreement was made the defendant assigned to the plaintiff’s assignor and to certain trustees certain securities as collateral; that the plaintiff’s assignor agreed upon payment to return the securities ánd certain releases of the debt; that after the commencement of the action the defendant tendered to the plaintiff the amount of the debt and demanded the securities and releases; that this was refused and that the plaintiff had converted the securities. The answer did not allege that the securities ever came into the hands of the plaintiff.</p> <p>Held, that the counterclaim arose out of the transaction set forth in the complaint, and was connected with the subject of the action.</p> <p>That, had the tender been alleged to have been kept good,, the counterclaim would have constituted a defense.</p> <p>That the rule that a tender, although not kept good, would release collateral securities and make one who thereafter refused to surrender them liable for a conversion, did not apply where it was not alleged that the plaintiff had ever had the possession or control of the securities.</p>

<p>Action against a benevolent association to determine the right to a beneficiary fund.</p>

Issues of law arising on. separate demurrers to the complaint by the insurance and guaranty company defendants, bn the ground that it fails to state facts sufficient to constitute a cause of action' against them.

<p>Trustees — A power to “ borrow on interest by mortgage,” to meet a deficiency in personalty, does not authorize the giving of a specific lien to the attorney for the estate — Consideration — Bona fide purchaser of a mortgage.</p> <p>A testatrix, who created her executor a trustee of all hér estate for certain purposes, gave him a power of sale and further provided that, if her personal estate was insufficient to pay her debts and a legacy of $1,000, given him in lieu of commissions, and, if he considered it inexpedient to sell the real estate, he might, “ borrow on interest by mortgage on such real estate to be made by him, such sum as may be ’necessary to supply any deficiency of m'y personal property for such purposes.” The testatrix left no debts. The executor, a lawyer, renounced the legacy and, having rendered certain legal services to the estate, substituted trustees executed to him a, bond and mortgage upon the real estate for $600. About twenty years later an assignee •sought to foreclose.</p> <p>Held, that the facts indicated that the sum of $500 was regarded by the trustees as a proper sum to compensate the attorney far his services and perhaps for renouncing his legacy; that the power given him •as executor to “ borrow ’’ did not authorize the substituted trustees to give a creditor a specific lien, and that, in any event, the attorney was not a creditor as no valid consideration was shown.</p> <p>That a bona, fide purchaser of a mortgage took it subject to the defense óf a want of consideration. .</p>

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

<p>Action against an insurance company to enforce its liability upon a policy nf fire insurance.</p>

<p>Appeal from a judgment of a Municipal Court in the borough of Brooklyn.</p>

<p>Action to rescind a sale of real estate on the ground of false representations made by the vendor.</p>

<p>Appeal — Directions as to printing an exhibit in a easel must be strictly" followed — Correction, of case.</p> <p>Where a case as settled, after stating that certain plans wefe received in evidence and marked “ Defendant’s Exhibit 6,” contains the requirement “ here insert the same,” the direction of the justice mugt be explicitly followed and a statement in the case, that “The plans bearing the stenographer’s mark not having been produced, although demanded, the appellant has been unable to print the same or reproduce copies thereof,” is not a sufficient excuse for the omission of the" exhibit from the case; and the respondent may have the case sent back for correction although she has already noticed it for argument.</p>

<p>Morion to compel plaintiff, in each action, to reply to the fourth separate defense alleged in the answer.</p>

<p>Action for judgment declaring void an assessment levied against plaintiff’s premises, as a cloud upon title.</p>

<p>Application to confirm the report of commissioners appointed to ascertain the compensation to he made to owners of property to be taken for the public use in opening and extending Orchard street, in the city of Kingston.</p>

<p>Application for an order staying a sale in mortgage foreclosure.</p>

<p>This is an action in effect to- enforce an alleged parol agreement for the reconveyance to plaintiff of premises conveyed by her to the above-named Henry A. Doolittle. The defenses are, first, that no such agreement was ever made; and, second, that if it was made it was void under the Statute of Frauds.</p>

This action is brought under section 1866, Code, ostensibly to obtain a construction of, but really to have declared invalid certain provisions in the will of one William P. Richards. Plaintiff was one of the children of said Richards who died, leaving in addition a wife and other children, the survivors of whom are parties to this action. He left a will by which he attempted to dispose of his property in three portions.

Each of these actions, which were submitted all together for ■decision, is brought to recover a penalty of $50 for the alleged failure and refusal of the defendant to issue a thousand-mile mileage book as required by statute-.

<p>Assessment insurance — Action for reinstatement — Complaint — Unnecessary allegations and denials.</p> <p>A complaint, of the holder of a certificate in an assessment life insurance association, which states facts showing that, although the association had a right to assess him $22.50 for death claims, it demanded of him $169.20 and that, although he tendered) the proper amount and kept his tender good, the association insisted on its demaná and thereafter absolutely forfeited his certificate because of his refusal to pay, states a cause of. action sufficient to procure the reinstatement of the member, and is not demurrable.</p> <p>The plaintiff is not bound to allege that a change and increase in his rate of assessment, which might have been made by the association at the end of every five years of his membership, had not been made; and if there is anything in his application or in the by-laws (not pleaded) which might defeat his claim, it is for the association to allege it and the plaintiff need not negative it in his complaint.</p>

This is an appeal from a judgment rendered by Xorman I. Arnold, a justice of the peace of the town of Eran hi in, dismissing plaintiff’s complaint upon demurrer.

<p>1. Action by a bondholder to compel a consolidated railroad company, and its mortgage trustee, to apply net earnings to his bonds instead of to junior obligations — Accounting.</p> <p>The first preferred income bonds of a railroad company, which numbered in all 5,500, were entitled by the terms of a trust mortgage to share in the net earnings and to that end a statement of such earnings was required to be furnished by the railroad company to-the trustee annually. The trustee never required the statement, paid no interest on the bonds and, -after the. consolidation of the company with another, became the fiscal agent of the consolidated company. Both it and the trustee thereafter wrongfully withheld and-.improperly diverted the net earnings by paying the same upon - junior obligations of the consolidated company.</p> <p>Held, that the holder of fourteen out of seventeen of such bonds, still outstanding, might maintain an action of accounting against- the consolidated company and the trustee in order to determine w-hat- - amount of the net earnings had been wrongfully diverted from the payment of the bonds of the plaintiff, and that an injunction might properly issue restraining similar'further payments.</p> <p>2. Same — Provision that the trustee, must first be requested to sue and be indemnified.</p> <p>In such an action, in view of the attitude of the trustee, the suit of such an owner, who sues for himself as well as for the “ equal benefit of all bonds outstanding”, is not amenable to a provision in the trust mortgage which requires, as a condition precedent to any suit by an individual holder of the bonds, that the trustee be given written notice of a default and that the holders of one-fourth in amount of the bonds then outstanding, having indemnified the trustee, shall have requested him to proceed in the manner provided by the mortgage. j</p> <p>3. Same — Provision that the trustee must proceed in a foreign state for an accounting of net earnings.</p> <p>Where both the mortgagor and trustee, residents of the state of New York, have shown by their acts or their acquiescence that they are hostile to the bondholder, his action to compel them to do their duty in the matter of the ascertaining and applying the net earnings, cannot be defeated by a clause of the trust mortgage which declares, as an exclusive remedy, that, if the railroad company and the trustee cannot agree as to the net earnings and the trustee be called upon to proceed by the holders of 25 per cent, in amount of the bonds and indemnity be furnished “ it shall be the duty of the said trustee to file a bill in equity against the railroad ‘company in any court of equity in the state of Ohio”, for an accounting of the net earnings, and such a ruling is especially just where a further provision of the instrument recites “it being understood, and it is hereby expressly declared that the rights of entry and sale (recited in the instrument as given to the trustee) are intended as cumulative remedies, additional to all other remedies allowed by law, and that the same shall not be deemed in any manner whatever to- deprive the trustee or the beneficiaries under this trust of any legal or equitable "remedy by judicial proceedings' consistent with the provisions of these presents according to the true intent; and meaning thereof.”</p> <p>4. Equity — Jurisdiction over resident fiscal agent and trustee of a foreign corporation.</p> <p>As equity acts upon the person, where the plaintiff and the trustee, the fiscal agent of the consolidated railroad corporation, are both residents of this state, our courts have jurisdiction, although the defendant, the consolidated railroad corporation, and its property are located in the state of - Ohio.</p> <p>5. Injunction — Where the defendant corporation was not insolvent — Mingling railroad earnings improperly.</p> <p>Where the only claim of the plaintiff: is for the net earnings of the railroad property covered by, and as determined under the conditions of, the trust mortgage and the defendants have wrongfully mingled such earnings with others and are paying them away, the plaintiff is entitled, by a preliminary injunction, to have the funds Of the consolidated railroad company, in excess, of certain charges against the company which are enumerated in the mortgage, held in trust until it can be determined what part of the ,excess is due him, and an injunction will be granted, although the company is not insolvent.</p>

<p>Forest preserve — Ejectment will not lie against the comptroller to recover tax lands in the preserve — Consent of the state.</p> <p>The possession acquired by the Comptroller, under section 13 of chapter 711 of the Laws, of 1893, of wild lands in the Forest Preserve, to which the State holds title under tax sales, is not actual nor of such a nature that a judgment against him, in an action of ejectment brought by the owner, would affect or disturb the possession of the State; and, even if the Comptroller were in legal possession or occupancy, the action could not be maintained, as the State has never consented in any manner that such an action and judgment should affect the title of the People to any portion of the Forest Preserve.</p>

<p>Appeal from a judgment of the City Court of the city of New York.</p>

<p>Appeal from an order of the General Term of the City Court, reversing an order of the Special Term, setting aside a warrant of attachment.</p>

<p>Appeal from an order of the General Term of the City Court, affirming an order of the Special Term, denying the defendant’s motion to vacate a warrant of attachment.</p>

<p>Services — Measure of damages, where action for wrongful discharge is tried after expiration of term.</p> <p>Where an action for a wrongful discharge, brought before, is tried after, the term of service has expired, the plaintiff may recover the same damages as if she had not sued until the term had expired; her damages being the contract compensation for the services, less what she had been paid and what she had earned after discharge.</p>

<p>City Court of New York — Illegal taxation of disbursements on appeal— Review by Appellate Term.</p> <p>Where an order of the General Term of the City Court of New York, for a failure to serve printed papers, dismisses an appeal with $10 costs of the motion and affirms the order appealed from “ with costs of this appeal, to be taxed by the clerk of this court ”, the clerk may properly tax the motion costs and $10 costs of the appeal, but he has no authority to go beyond that sum and tax disbursements for his fees on entering judgment, affidavit, satisfaction-piece, sheriff’s fees, etc.; and as the action of the clerk is, in this respect, illegal, the Appellate Term may review an order of the General Term of the City Court affirming an order denying a motion for a retaxation.</p>

<p>Lease — A surrender does not affect a subtenant.</p> <p>Held, that, where the lessee surrenders his lease to the lessor and owner of the fee, the term of a subtenant of the lessee is not affected where he is not a party to such surrender.</p>

<p>Animals — Loss of property right in a sea lion by its escape to the ocean and failure to return—“Natural liberty” regained.</p> <p>A sea lion is ferae naiurae, and "where it escapes from captivity near * New York city and two weeks later is caught in a fish-pound in the Atlantic ocean on the coast of New Jersey seventy miles from the point of escape, the owner has lost his property in the animal, as it has regained its natural liberty and has shown no intention of returning to its place of captivity.</p> <p>The contention that there can be no return of such an animal to its natural liberty until it has reached its native place, on the coast of California, or, at least a place (not found on the Atlantic coast) where the physical conditions are favorable to its existence, is untenable.</p>

<p>Benefit associations — Death benefit reduced by unpaid dues, although • member was not personally notified of arrears.</p> <p>A provision in the constitution and by-laws of a lodge, reducing death benefits in a certain proportion to existing unpaid dues, is not affected by a direction of the by-laws that the financial secretary shall, four times a year, notify all members “ with a written notice specifying the amount of arrears; ” and if the member be in arrears at the time of his death, the death benefit must be reduced to the extent provided by the constitution, although the financial secretary merely mailed the member a notice of'arrears and never served it upon him personally.</p>

<p>Municipal Court of- Hew York — Terms of opening default — Review by Appellate Term.</p> <p>The Appellate Term has power to review the terms of an order, made under chapter 748 of the Laws of 1896, opening a default in a Municipal Court of the city of New York, in a case ■ where there has been an abuse of discretion.</p> <p>The justice may, as a condition of opening a default, impose costs to the extent of $10 and no more, and may also, in a proper case, require the defendant to give an undertaking conditioned that he will not sell, assign or transfer his property to delay or defraud the plaintiff, but the justice cannot compel a defendant to pay the costs embraced in the judgment by default, nor order him to make a cash deposit as security.</p>

<p>Appeal from a. jiidgment -of the Municipal. Court of the city of Hey York, borough, of Manhattan, sixth district-, in- favor of the plaintiff,</p> <p>'The action was-brought to recover-the amount-of a coupon which had been attached to a bond-issued hy the appellant, .a corporation.</p>

<p>Brokers — A secret agreement for compensation from the other party, inadmissible under the answer.</p> <p>In an action for brokers’ commissions for effecting an exchange of property, the defense, that the. brokers were secretly -to receive a commission from the party who accepted the exchange, cannot be asserted by the defendant where his answer fails to allege the defense in question, admits performance, and denies only the agreement rdative to the commissions which were to be paid by him.'</p>

<p>Appeal from a judgment of the Municipal Court of the city of ¡New York, borough of Manhattan, first district, rendered in favor of the defendant. -</p>

<p>Appeal from a judgment of the Municipal Court, of the city of Rew York, borough of Manhattan, second district, in favor of the plaintiff. 1</p>

<p>Lease — An assignee is liable only for breaches after the assignment — Counterclaim.</p> <p>Where an assignee of a term brings an action against the landlord to recover rent paid him by mistake, the .landlord cannot counterclaim for breaches of covenants of the lease which were committed before the assignment, as an assignee is only liable for those breaches which occurred after he took' the assignment.</p>

<p>Brokers — Must produce a party able to contract — Effect of a proposed lease extending beyond the minority of an infant tenant in common.</p> <p>In order to recover commissions real' estate brokers must show that they have found a person who is not only willing, but is also able, to enter into the contract which they have been authorized to negotiate; and where a client authorizes brokers to procure for him a lease of property for eight years and this term exceeds by one or more years the period of. the minority of an infant tenant in common, even if it be assumed that the infant has a duly appointed guardian, a lease by the guardian could not overrun the infant’s minority and would be void for the excess, and hence, in procuring consent to a lease for eight years, the brokers have earned no commissions as they have failed to procure a person who is able to enter into the contract which the client authorized them to negotiate.</p>

<p>Mistake — By one who could not read an instrument.</p> <p>A contractor, who cannot read, is bound by the terms o$ an instrument, fixing the price of his work, where he was in no manner induced to refrain from examining the instrument and where his evidence that, when he signed it, he supposed that it stated a larger price which had been agreed upon, is contradicted.</p>

<p>Lease — Condition enabling landlord to recover, as damages, rent accruing after dispossession of tenant by summary proceedings — Code of Civil Procedure, § 2253.</p> <p>A provision in a lease that “ in case of default, or any violation in any of the covenants, the landlord may resume possession of the premises and relet the same for the remainder of the term at the best rent he can obtain, for account of the tenant, who will make good any deficiency,” is valid and takes the contract out of the operation of section 2253 of the Code of Civil Procedure, declaring, in substance, that an issue of a warrant in summary proceedings annuls the relation of landlord and tenant and. precludes the landlord from recovering subsequent rent; and, consequently, the landlord (or an assignee of his claim) may, after re-entry recover, not as rent but simply as damages for a breach of the condition, a deficiency which resulted from his inability, after attempt made, to re-rent the premises during a portion of the unexpired term.</p>

<p>Appeal from a judgment of the Fourth Municipal Court, borough of Manhattan, in favor of the plaintiff-corporation.</p>

Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of .Manhattan, first district, in its favor for $71.59, damages and costs, entered upon the verdict of 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 Municipal Court of the city of Hew York, borough of Manhattan, second district, in favor of the defendant for $150, entered upon the verdict of 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 the city of Mew York, borough of Manhattan, seventh district, in favor of the plaintiff for $341, with costs, rendered by the court, without a jury. The nature of the action and the material facts are stated in the opinion.

<p>Set-off — A note of the assignor, not matured, cannot be set off against his assignee.</p> <p>In an action brought by an assignee of a claim, the defendants cannot be allowed, as an offset, the amount, of a note of the assignor which would not mature until after judgment had been rendered in the action, as the right of the defendants to sue upon the note is suspended.</p>

<p>Appeal by the defendant from a judgment of the Municipal Court of the city of Hew York/ borough of Manhattan, second district, rendered by the court in favor of the plaintiff, by default.</p> <p>Action to recover damages claimed to have been caused by an overflow of water from the premises of the defendant.</p> <p>The material facts are stated in the opinion.</p>

Appeal by the tenant from a final order in summary proceedings to recover the possession of real property, for nonpayment of rent, made by the justice of the Municipal Court of the city of Mew York, borough of Manhattan, ninth district, in favor of the landlord, upon default; and from an order denying the motion to open such default. The material facts are stated in the opinion.

Appeal by the plaintiff from a judgment of the Municipal Court of the city of Mew York, borough of Manhattan, tenth district, dismissing the complaint upon a trial had before the court and a jury. ■ Action to recover damages for a personal injury claimed to have been sustained in consequence of the defendants’ negligence. The pleadings were in writing. The opinion states the material facts.

<p>Witness -r- Hostility.</p> <p>The hostility of an adverse witness' may be proven by his cross-examination, or witnesses may be called who are able to swear to facts showing the hostility.</p>

Appeal by tbe defendant from an order opening tbe plaintiffs’ default made by one of tbe justices of the Municipal Court of the city of ¡New York, while presiding at the said court, borough of Manhattan, second district. The material facts are stated in the opinion.

Ajppeal from an order made by the justice of '¡the Municipal Court, borough of Manhattan, seventh district, granting a motion for a new trial, on the ground of surprise and newly-discovered’ evidence after judgment dismissing the complaint, with costs.

<p>Lease — A collateral agreement to repair must be pleade'd — Counterclaim.</p> <p>Where a referee finds that the expense of a new roof, placed on demised premises by the defendant, “ is not chargeable against the plaintiff under the covenant to repair contained in the lease between the parties hereto,” he cannot allow the expense, as a counterclaim, upon proof of an extrinsic collateral agreement between the parties, which is not pleaded.</p>

■ Action by the city of Buffalo for a violation of certain sections of the ordinances of said city, and for the recovery of the penalty prescribed by section 8 of said ordinances.

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

<p>Appeal from a final order of the Fourth Municipal Court,, borough of Manhattan.</p>

<p>■Appeal from a judgment of the Fifth Municipal Court, borough of Manhattan, in favor of the plaintiffs.</p>

<p>Appeal from a judgment of the First District Court, dismissing the complaint.</p>

<p>Appeal from a judgment of the First Municipal Court, borough of Manhattan, in favor of the plaintiff.</p>

<p>Appeal from a judgment of the Municipal Court of the city of Rew York, borough of Manhattan, fifth district.</p>

<p>Appeal from an order of the General Term of the City Court, affirming a judgment rendered in favor of the defendant upon the report of a referee. '</p>

<p>Appeal from orders of the Eighth Municipal Court.</p>

<p>Appeal from an order and judgment of the Second Municipal Court, borough of Manhattan, in favor of the plaintiff.</p>

<p>Appeal by plaintiff from a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, eighth district, dis-. missing, the complaint. ,</p>

<p>Appeal from a judgment of the Municipal Court, fourth district, borough of Manhattan, New York city.</p>

<p>Appeal from a judgment of the Municipal Court, ninth district, borough of Manhattan, New York city.</p>

<p>Appeal from a judgment of the Municipal Court, seventh district, borough of Manhattan, New York city.</p>

<p>Appeal from a judgment of the Municipal Court, sixth district, borough of Manhattan.</p>

<p>Appeal from judgment rendered in favor of the plaintiff in the Municipal Court of the city of New York, borough of Manhattan, tenth district.</p>

<p>Al-peal from a judgment of the Municipal Court, fifth district, borough of Manhattan, Rew York city.</p>

<p>Appeal from a judgment rendered in favor of the plaintiff in the District Court in the city o'f Rew York for the first judicial district.</p>

<p>Appeal from a 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, and from an order denying a motion for a new trial.</p>

<p>Appeal from an order of Special Term, opening a default.</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 a judgment entered in favor of the defendant, on a verdict rendered by the jury.</p>

<p>Appeal from interlocutory judgment overruling demurrer to defendant’s counterclaim.</p>

<p>Appeal from an order opening a default. ' ■</p>

<p>Appeal from interlocutory judgment, overruling plaintiff’s demurrer to defendant’s answer.</p>

<p>Appeal from a judgment. Action tried by court.</p>