Volume 26 — Bedell

fourth judicial department, entered November 3, 1905, affirming a judgment in favor of jdaintifE entered upon the report of a referee. The nature of the action and the facts, so far as material, are stated in the opinion. The legal title to the lands was not vested by the will in the executor therein named since no valid trust was created. It passed to the residuary devisees, and carried with it to them the right to possession and to receive the rents and profits.

The nature of the action and the facts, so far as material, are stated in the opiniop. Ho contract whereby Margaret Gallagher became entitled to the estatq of Bridget Ditton was proven. (Hamlin v. Stevens, 177 N. Y. 47; Rosseau v. Rouss, 180 N. Y. 116; Southwick v. F. Nat. Bank, 84 N. Y. 429 ; Bradt v. Frank, 164 N. Y. 579; Ide v. Brown, 178 N. Y. 26 ; Gall v. Gall, 64 Hun, 600; Mahany v. Carr, 175 N. Y. 454; Ripson v. Hart, 64 App.

Appeal irónica judgment of the Appellate Division of the Supreme Court in the third judicial department, entered September 25, 1906, affirming a judgment of Special Term construing tlie will of Jacob Y. B. Teller, deceased.

The nature of the action and the facts, so far as material, are stated in the opinion. Under the pleadings and the evidence in this case, the plaintiff was entitled to the regular judgment of foreclosure and sale. (Best v. Thiel, 79 N. Y. 15; Recknagel v. Steinway, 58 App. Div. 352; Hammond v. Earl, 58 How. Pr. 426; Olivella v. N. Y. & H. R. R. Co., 31 Misc. Rep. 203; Spencer v. C. M. L. Ins. Assn., 142 N. Y. 505; Fuller v. Artman, 69 Hun, 546; Hazleton v. Webster, 20 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The resolution of the board of estimate and apportionment, directing that Hawthorne street between Kingston and Albany avenues,, he stricken from the official map, did not effect a legal closing of that portion of the street. (Matter of Rhinelander, 68 N. Y. 107; People ex rel. Dilzer v. Calder, 89 App.

The facts, so far as material, are stated in the opinion. The deed by virtue of which Kellogg claims a lien upon the surplus is usurious and void. (1 R. S. 771, § 1; L. 1879, eh. 538, § 1; 1 R. S. 772, § 5; L. 1837, eh. 430, § 1; Chapman v. Robertson, 6 Paige, 627; Levy v. Levy, 33 N. Y. 97; Hosford v. Nichols, 1 Paige, 221; Brine v. Ins.

<p>1. Decedent’s Estate — When Decree of Surrogate Refusing to Allow Executrix Cost of Burial Lot Must Be Sustained. Where a testator owned a burial lot'in the cemetery of an incorporated cemetery association, in which there remained sufficient space for the burial of three more bodies, and the executrix, testator’s widow, caused his body to be interred in another lot in the same cemetery which she purchased for that purpose, claiming that testator’s son had refused to permit the burial of testator’s body in the lot owned by him at the time of his death and that he had also refused to recognize her own right to burial therein, a finding of the surrogate, unanimously affirmed by the Appellate Division, that there was no refusal by any person or persons, having an interest in said cemetery lot, to allow the hurial of decedent, or his widow, in the event of her death, therein, is conclusive upon the Court of Appeals and sustains the propriety of the surrogate's ruling that the purchase price of the second lot was not chargeable against the estate.</p> <p>2. Same —• When Degree of Surrogate Refusing to Allow Executrix Counsel Eees Paid to Attorneys Employed by Her Must Be Sustained — Nomination, by Testator, of Attorneys to Perform Services Necessary in Administration of Estate. While a finding of the surrogate, unanimously affirmed by the Appellate Division, that the services rendered by an attorney, employed by the executrix, were rendered to her personally rather than as executrix, and that all legal services necessary for the~administration of the estate were performed by a firm of lawyers, whom testator assumed to appoint for that purpose by a provision of his will, precludes the Court of Appeals from 'reviewing a ruling of the surrogate, based upon such finding, which- disallowed the amount paid by the executrix to such attorney, it must not he understood therefrom that the appointment of attorneys by the will was binding upon the executors; the law of this state does not recognize any testamentary power to control the attorneys or counsel who shall act for them in their representative capacity; such a provision, therefore, is to he regarded merely as expressive of a wish on the part of a testator, which his executors may observe if it accords with their own judgment, but which otherwise they are not bound to regard.</p> <p>3. Will — Equitable Conversion Effected by Codicil to Will — When Proceeds of Real Estate Pass under Bequest of Personal Property. Where testator, by a clause of his will, conferred upon his executors the power to sell and convey any and all of his real estate, and by a codicil thereafter made directed his executors to sell all of his real estate not specifically devised by the will itself and turn the same into money as soon as it might be done for the best interests of his estate; such codicil not only substitutes, for the discretionary power of sale conferred by the will, a positive and absolute direction for the sale of testator’s real estate not specifically devised, but also operates as an equitable conversion of the real estate to which it refers and the proceeds thereof-should be distributed as personal property .under the will; testator’s widow is entitled, therefore, to receive one-third of such proceeds, under tlic clause of the will giving her one-third of testator’s personal property, instead of the whole thereof going to testator’s son under the residuary clause of the will, by which he devised to his son all of his real and personal estate not specifically bequeathed and devised by prior provisions of the will.</p>

The action xvas brought to obtain a decree adjudging oid certain alleged trusts and powers in the xvill of Julius Jacoby, deceased, and that the decedent died intestate as to the residuum of his property on the ground that the testamentary disposition suspended the absolute ownership and poxver of alienation of the decedent’s estate for a period beyond that alloxved by laxv.

Shortly after midnight of October 6, 1904, an automobile containing plaintiff’s intestate and eight other persons crashed through a fence which extended across the westerly end of Jerome avenue in the city of New York, falling over a sheer declivity to a depth of between twenty and thirty feet just beyond the fence, and landing on the tracks of the New York Central Railroad Company, where the automobile and the party which had occupied it were run down by a passing train,…

The nature of the action and the facts, so far as material, ■ are stated in the opinion. The complaint fails to state facts sufficient to constitute a cause of action under the Employers’ Liability Act. (Kleps v. B. Mfg. Co., 107 App. Div. 488; Gmaehle v. Rosenberg, 178 N. Y. 147; Ward v. M. R. Co., 95 App. Div. 437 ; Schermerhorn v. G. F. G. Co., 94 App. Div. 600 ; Austin v. Goodrich, 49 N. Y. 266 ; Lewis v. Howe, 174 N. Y. 430; Braunberg v. Solomon, 102 App.

The defendant was indicted for the crime of grand larceny in the second degree in that on the fifth day of January, 1906, at the borough and county of FTew York, being the bailee and agent of one John Behrens, and as such having in his possession a finger ring worth one hundred and seventy-five dollars of the goods, chattels and personal property of said Behrens, he “ did feloniously appropriate the said goods, chattels and personal property to his own use with intent to…

The nature of the action and the facts, so far as material, are stated in the opinion. The defendant was not negligent. (Morris v. Brown, 111 N. Y. 318; Sellick v. Langdon & Co., 55 Hun, 19 ; Gleary v. Blake, 14 App. Div. 602; Del Sejnore v. Hallman, 153 N. Y. 274; Barrett v. L. O. B. Imp. Co., 68 App. Div. 602; Quinn v. Baird, 49 App. Div. 270 ; Daley v. Brown, 45 App. Div. 432 ; Gorman v. White, 19 App. Div. 324 ; Hoehmann v. M. E. Co., 4 Misc.

The facts, so far as material, are stated in the opinion. No out and out conversion of the real property was ever effected. No express agreement for a conversion is claimed. The facts do not warrant the application of the doctrine of equitable conversion as affecting the succession to this property. (Smith v. Jackson, 2 Edw. Ch. 28; Patterson v. Brewster, 1 Edw. Ch. 352; Delmonico v. Guillaume, 2 Sandf.

The nature of the action and the facts, so far as material, are stated in the opinion. If the liability of the city is statutory, then the liability should be ascertained by following the definition of our statute as to what makes a mob or. riot.” (Regina v. Langford, Carr. & M. 602; Marshall v. City of Buffalo, 50 App.

<p>1. Conditional Sale — Oral Contract. Where machinery is sold to a corporation under an oral agreement by which the title was to remain in the vendors until the payment by the vendee of the purchase price, for which drafts were given, the transaction constitutes a conditional sale, although the agreement being oral is not filed as required by statute.</p> <p>2. Evidence — When Declarations by Deceased Officer op Corporation against His Interests Are Admissible in Action against the Corporation. Where the vendee, while in default in the payment of the drafts given for the purchase price of the machinery, transferred it, together with other personal property, to a firm who were large creditors of the vendee, and such firm sold the machinery to a corporation against which the vendors brought an action for the conversion of the machinery, declarations made by a deceased stockholder and director of the defendant who had negotiated the purchase of the machinery for the defendant, are properly admitted to prove that the defendant had knowledge of the plaintiffs’ claim of title to the machinery; not because the person making such declarations was an officer of the defendant, but for the reason that the declarant was dead; that he possessed competent knowledge of the facts and that the declarations were at variance with his interests and, therefore, likely to he true.</p> <p>3. Conversion—Action against Purchasers of Property Sold by Vendees in Possession under Conditional Sale—When Failure to Demand Property is Fatal to Action of Conversion. Where it is found by the trial court, upon the trial of such action, that no sufficient demand for the restoration of the property in question was made before the commencement of this action,” such finding, approved by a unanimous decision of the Appellate Division, is fatal to a recovery by the plaintiffs, where it appears that after the default the vendor allowed the machinery to remain in the hands of the vendees, and, therefore, they had an interest which they could sell to the defendant, since it is the general rule tin t where property comes lawfully into the possession of a party he cannot he charged with conversion in failing to surrender it to the owner unless a demand therefor is made.</p>

The facts, so far as tpaterial, are stated in the opinion. The Election Law does not authorize the issuance of a writ of mandamus to compel a recount of ballots. (People ex rel. Brink v. Way, 179 N. Y. 174; Matter of Hearst v. Woelper, 183 N. Y. 274; Matter of Stiles, 69 App. Div. 689.) The applicant has mistaken his remedy. (People ex rel. Hoyt v. Board of Supervisors, 19 Misc. Rep. 671; People ex rel. Lewis v. Brush, 146 N. Y. 60; Green v. Knox, 76 App.

Kidd, deceased, to be exempt from a transfer tax. The facts, so far as material, are stated in the opinion. The oral agreement alleged to have been made between Anna Estelle Slocum with George W. Kidd, prior to her marriage with him, was in contemplation of his death, was not payment of any legal debt, but was a gift of gratuity, and as such is liable to taxation.

<p>1. Mutual Benefit Societies—When By-laws Affecting Certificates or Policies of Life Insurance Cannot Be Amended. While a “ mutual benefit fraternity,” or fraternal insurance society, may so amend its by-laws as to make reasonable changes in the methods of administration, the manner of conducting its business and the like, no change can be made which will deprive a member of a substantial right conferred expressly or impliedly by the contract itself. That is beyond the power of the legislature as well as the association, for the obligation of every contract is protected from state interference by tl)e' Federal Constitution. (Art. 1, g 10.)</p> <p>2. When By-law Restricting Business or Occupation of Insured Is Void as to Certificate Previously Issued. Payment of a certificate of life insurance issued by a “ mutual benefit fraternity,” or society, upon which dues bad been paid by the assured and accepted by the society to the time of his death, cannot be avoided upon the ground that the assured,.at the time of bis death, was, and for a ffew months prior thereto had been, engaged in the hotel business, in violation of a by-law adopted by the society, without notice to the assured, many years after his certificate was issued, prohibiting any certificate holder of tlio society from selling liquors at retail, and declaring the certificate of any one engaging in such business void for a violation thereof, where neither the certificate in question, or the application therefor, nor the by-laws under which the certificate was issued, contained any restriction as to the business in whicli the assured might engage.</p> <p>3. Agreement, in Application, for Certificate, to Obey All Laws and Regulations Enacted and to Be Enacted, Does Not Justjfy Change in By-laws Affecting Vested Bights. The fact that in the application, upon which the certificate was issued, the assured agreed to comply with all laws, regulations and requirements of the society which were then, or might thereafter he. enacted, there being no reservation in the by-laws of the specific right to amend them so as to restrict the occupation, or business, of the assured, did not permit an amendment in that respect without the consent of the assured, and the attempt made without his consent was beyond the power of the society and absolutely void; since the effort was not to reduce the amount of insurance, hut to destroy it altogether, unless the assured would conform to a by-law passed in violation of a vested right, for the privilege, allowed because not forbidden, of engaging in any lawful business was a vested right of which the assured could not be deprived without his consent.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The exception of defendant to the refusal of the trial justice to charge its ninth request and to the modification thereof presents reversible error. (Dambmann v. M. S. R. Co., 180 N. Y. 384; Coleman v. S. A. R. Co., 114 N. Y. 612; Meeker v. Smith, 84 App. Div. 111; McKinley v. M. S. R. Co., 77 App. Div. 256; Davidson v. M. S. R. Co., 75 App. Div. 426; Lyons v. Avis. 5 App.

The facts, so far as material, are stated in the opinion. If this court decides that the only-interpretation possible is that the various legatees should receive from the residue gifts of the same kind and nature as their specific gifts, the ,£ Thirtieth ” clause must fail, as clearly there would be as to part unlawful suspension of The power of alienation, or, rather, failure of all future estates to vest within two lives in being.

■ The facts, so far as material, are stated in the opinion. Money obtained from the sale of real estate by a corporation previously used by the company for its business purposes, when distributed by the company, represents a distribution of corpus, and does not go to a life tenant of a trust holding stock of the company. (Matter of Rogers, 161 N. Y. 108; Chester v. B. C. Mfg. Co., 10 App.

The nature of the action and the facts, so far as material, are stated in the opinion. There was no consideration for the contract of 1890. (Sims v. Everhardt, 102 U. S. 300 ; McGreal v. Taylor, 167 U. S. 688; Lowell v. Daniels, 2 Cray, 161; Brown v. McCune, 5 Sandf. 224; Murphy v. Holmes, 87 App.

The facts, so far as material, are stated in the opinion. Subdivision 15 of paragraph 23 of the will of Simon Goldenberg jS valid, and pursuant to'its terms the persons therein named became vested, as trustees, at least, with the title to tire testator’s residuary estate.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered October 5, 1906, which affirmed an order of Special Term denying a motion for an inspection of defendant’s books, records and documents, and for an inventory of its plant. ■ j The facts, so far as material, and the questions certified are stated in the opinion.

The nature of the action and the facts, so far as material, are stated in the opinion. The alleged negligence of the defendant in failing to supply explosives was not the proximate cause of the accident. (Hofnagle v. N. Y. C. & H. R. R. R. Co., 55 N. Y. 608 ; Loughlin v. State, 105 N. Y. 159 ; Miller v. Thomas, 15 App. Div. 105 ; Perry v. Rogers, 157 N. Y. 251; Crown v. Orr, 140 N. Y. 450; Baker v. Sutton, 11 App.

<p>1. Real Property—Judicial Sale Thereof —Unless Title Is Marketable Bidder Is Not Required to Complete Purchase. A person who, in good faith, hids upon real property at a judicial sale where the particular interest offered is not expressly stated, has a right to assume that he is to receive a conveyance of the fee, and that the title to such real property is marketable. In case the title to such real property is not marketable such fact is a defense to a motion to compel the purchaser to complete his purchase or to any other proceeding or action based upon such bid.</p> <p>2. WriEJsi Motion to Compel Bidder to Complete Purchase May Be Made — Claim of Defective Title — Affidavits. The fact that a person bids upon property at a judicial sale and signs the terms of sale by which he agrees to complete his purchase at a specified time is sufficient on which to move for an order compelling the purchaser to perform his agreement. If answering affidavits are rend alleging, and claiming to show, that the title is defective the Special Term may allow the production of such further affidavits, by either party, relating to the title as may he necessary or desirable to bring to the attention of the court the true facts in regard thereto. •</p> <p>3. When Order Directing Bidder to 'Complete Purchase May Be Reversed and Reference to Take Proof Ordered. Where the affidavits, constituting the record upon which an order was granted requiring' a bidder at a judicial sale to complete Ills purchase, are very general and in part upon information and belief, so that, after a full consideration of all the facts alleged, an ordinarily prudent person would be justified in hesitating about accepting title to the property or loaning money thereon, the order should be reversed and the case remitted to the Special Term to take further proofs and for a rehearing thereon.</p>

On the 18th of October, 1897, John Flynn, a resident of the city of Brooklyn, died at the age of seventy, leaving a last will and quite a large estate. His widow, five children and one grandchild, the son of a daughter who died before the execution of the will, survived him as his only heirs at law and next of kin. Two daughters and one son were the children of his first wife, while two sons were the children of his second wife.

<p>Contract—Judgment Creditor’s Suit — Conveyance of Lands by Father to Children in Consideration That Latter Pay Income of Property to Him for Life—When Decree in Judgment Creditor’s Suit against Father and Children Directing Payment of Part of Income to Creditor Does Hot Relieve Children from Contract. A father conveyed certain parcels of land to his daughters, who, in consideration thereof, agreed to apply the net income of said land, after deducting therefrom the interest on a mortgage of $2,000, covering one of said parcels, to the support of their father during his life, and, in case the premises last described in the agreement should he sold, the proceeds thereof should he applied to the payment of said mortgage, or he invested and the interest thereon used and expended for the support of the father; two years later the daughters sold said “last described premises ” for $1,900, with which sum, and with $100 of their own money, they paid the mortgage; subsequently a judgment creditor of the father brought an action to set aside the conveyance as fraudulent and void against the judgment; in such action the validity of the transfer was upheld, but it was decreed that the father was, as to the judgment creditor, the owner of a life estate in the lands conveyed to his daughters, subject to a lien of §3,000, formerly represented by the mortgage, paid by the daughters; a receiver of the father’s life estate was appointed and directed to pay, out of the income of the land in question, the interest on §3,000, to the daughters, and apply the remainder on the judgment creditor’s claim; after such judgment the daughters retained the whole of the interest paid to them by the receiver and failed to pay it over to, or apply it to the use of, the father; thereafter the father brought an action against his daughters to recover from them the interest on the §1,900 of the mortgage, so retained by them; the Special Term awarded judgment in favor Of the father, but the Appellate Division, by a divided court, has reversed if. Held, that the decree in the judgment creditor’s suit did not relieve the daughters from their obligations to their father; while they were all parties to that suit no issue was raised between them and no claim for relief was made by either against the other, so that the decree therein could in no way adjudicate their respective rights under the agreement; the father is entitled, therefore, to the relief demanded and the order of the Appellate Division should be reversed and the judgment of the Special Term affirmed.</p>

The nature of the action and the fac^s, so far as material, are stated in the opinion. ' The policy was effectually canceled before the fire. ( Van Valkenburgh v. Lennox 51 N. Y. 465; Griffey v. N. Y. C. Ins. Co., 100 N. Y. 417; Nitsch v. A. C. Ins. Co., 152 N. Y. 635; Tisdell v. N. H. Ins. Co., 155 N. Y. 163; S. & S. Co. v. Phoenix, 31 Ins. L. J. 483; Walthear v. P. F. Ins. Co., 2 App. Div. 328.) The policy was canceled by agreement1. (Springer v. v. A. N. Assur.

The nature of the action and the facts, so far as material, are stated in the opinion. The fee in the northerly one-half of the lands of South boulevard adjacent to the easterly one-half of lot 34 is all that plaintiff can reasonably claim. (Bissell v. N. Y. C. R. R. Co., 23 N. Y. 61; Perrin v. N. Y. C. R. R. Co., 36 N. Y. 121; Graham v. Stern, 168 N. Y. 521; Mott v. Mott, 68 N. Y. 253 ; Watson v. City of New York, 67 App.

The nature of the action and the facts, so far as material, are stated in the opinion. Error was committed by the Appellate Division in affirming the finding of the jury on the assumption that the jury had answered the second question submitted to it, viz.: Was the deceased intentionally killed, in the affirmative, as, if the jury had so found it should, under the instructions of the court, have found for the plaintiff in the sum of sixteen dollars.

<p>1. Damages —Elements of Damages in Actions fob Personal Injuries — When Loss of Income May Be Shown and Considered — Mere Profits of Business Cannot Be Considered. Where a person by reason of personal inj uries has been prevented from performing the work or services in which he was engaged at the time of the injury, the loss of time occasioned thereby and also any loss or diminution of future earning power are elements of damage to he considered by a jury. A loss of income can he shown and considered when such income is derived from personal effort or particular skill and ability as distinguished from the profits of a business in which capital is invested and which is depend-, ent upon the continuance of the business as well as the capital, but mere profits of a business as such cannot he considered in measuring the damages arising from such loss of time or diminution of earning power.</p> <p>9. Same—Erroneous Admission of Evidence Tending to Show Loss of Profits Caused by Personal Injury to Owner of Business. Where the plaintiff, in an action to recover damages for personal injuries, was engaged at the time of the injury in conducting a small restaurant, or lunch business, at which oysters and clams, opened as they were, ordered, were the principal articles of food sold, and there is no evidence showing that any particular skill or ability was required in the management of the business or that the plaintiff had any particular skill or ability in opening oysters and clams or in serving food to others, it is reversible error to permit the plaintiff to testify as to the profits of the business before his injury; the evidence should have been confined to the value of the plaintiff’s individual services during the time that he was unable, by reason of his personal injuries, to perform the same.</p>

<p>1. Evidence — When Admissions Contained in a Counterclaim Aré Admissible in Evidence Against the Defendants in an Action. Upon the trial of an action for goods sold and delivered, admissions contained in a counterclaim, forming part of a verified answer, are admissible as evidence against the defendants. While such admissions are not conclusive as against a general denial also contained in the answer, they may he considered, with the other evidence received on the trial, in determining and deciding the issues in the action.</p> <p>2. Witnesses — Code Civ. Pro. § 829 — When Interest of Witness in Result of Action Too Remote to Disqualify Him from Testifying as to Conversations with a Deceased Defendant. Where an action was brought against the members of a firm to recover for goods sold and delivered to them, and one of the defendants died after the commencement of the action, and his administrators with will annexed were substituted in his place and stead, the secretary and treasurer of an insolvent corporation whose assets were sold by. the sheriff several years previous is not disqualified under the statute (Code Civ. Pro. § 829) from testifying, as a witness for plaintiff, to conversations had with the deceased member of the firm relative to the sale of the goods in question, by reason of the fact that such corporation had been an agent or factor for plaintiff’s assignor in such sales, and that if plaintiff failed to recover from defendants because of any mistake or fault on the part of such corporation, the mistake or fault would he chargeable to the corporation. The interest of the witness, if any, by reason of his having been the secretary and treasurer of the corporation before it ceased business, is too remote, uncertain and doubtful to make him interested in the event within the meaning of the statute.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. It was not proper for defendant to call witnesses to show where she got the money she claimed to have paid. (Daby v. Ericsson, 45 N. Y. 786; Hilton v. Scarborough, 5 Gray, 422.) It was competent to show that the defendant had or procured money with which the payments might have been made.

This proceeding is a controversy between husband and wife, living in a state of separation, involving the custody of their infant daughter. It was commenced by the husband, a resident of this state, upon whose petition a writ of habeas corpus was issued against the wife.

The nature of the action and the facts, so far as material, are stated in the opinion. There is absolutely no evidence of negligence on the part of the appellants, and the.learned trial court committed reversible error by continually insisting and charging that the excavators were liable.

The nature of the action and the facts, so far as material, are stated in the opinion. It was established that respondent had not substantially performed his contract and the verdict was, therefore, against the law and the weight of evidence.

The facts, so far as material, are stated in the opinion. Mandamus was the sole and only remedy of the relator and all necessary parties were before the court. (Rowland v. Mayor, etc., 83 N. Y. 376; People ex rel. Corkhill v. McAdoo, 98 App. Div. 312; People ex rel. Jacobus v. Van Wyck, 157 N. Y. 495 ; People ex rel. Coveney v. Kearny, 44 App. Div. 449; People ex rel. Shaughnessy v. Fornes, 172 N. Y. 323; O'Hara v. City of New York, 46 App.

<p>Contract—Conditional upon Action by the Legislature — Specific Performance. A contract for the purchase of real estate executed by the city of S)rracuse in conformity with a resolution adopted by the common council, providing for the payment of a portion of the purchase price on a date specified, “the balance to be paid for in such manner as the city is authorized by an act of the legislature to be passed at the legislative session commencing January 1,1900,” cannot be specifically enforced and the city compelled to accept the deed where no payment was ever made upon the contract, and no act authorizing the payment by the city of the purchase price or any part thereof has been passed by the legislature, since the provision for payment is not absolute, but conditional, depending upon future action by the legislature, and such action must be regarded as a condition precedent to any obligation on the part of the city.</p>

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

The nature of the action and the facts, so far as material, are stated in the opinion. The dismissal of the complaint was proper. (Reynolds v. Van Buren, 155 N. Y. 120 ; McAdam on Landl. & Ten. [2d ed.] 51; Taylor v. Caldwell, 3 B. & S. 826; Wood on Landl. & Ten. 348, § 227.) The dismissal of the complaint by the trial justice constituted error, and the Appellate Division was right when it reversed his order and the judgment entered upon it.

The nature of the action and the facts, so far as material, ■ are stated in the opinion. The court adopted an improper measure of damages in relation to the three lots affected by the widow’s right of dower.

The nature of the proceeding and the facts, so far as material, are stated in the opinion. The franchise granted to the relator by the state is a contract and was made complete by the ordinance of 1883 and its acceptance by the relator, and it is protected by the Federal Constitution against impairment, either by the legislature or the municipal authorities.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 5, 1906, which affirmed a judgment of Special Term sustaining demurrers to the complaint in an action to establish a claim against the Commonwealth Trust Company and to enforce the statutory liability of its stockholders therefor.</p>

<p>Motion to amend remittitur. (See 187 N. Y. 540.)</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 8, 1907, which affirmed an order of Special Term denying a motion to set aside the summons and complaint in an action of quo warranto and the service thereof as unlawful.