Volume 27 — Bedell

The complaint sets forth two causes of action in favor of the plaintiff as receiver of the Federal Bank of New York, a domestic hanking corporation, each founded on a promissory note made by the defendant, payable to his own order.

<p>Appeal — When Second Appraisal of Lands for Water Supply in City of New York Is Not Conclusive. Section 22 of chapter 189 of the Laws of 1893, relating to the acquisition of lands for the protection of the sources of water supply in the city f New York, which provides, among other things, that “in case of a new appraisal the second report shall be final and conclusive on all parties and persons interested,” does not apply where the first report was set aside by the Special Term upon the ground that the commissioners had admitted improper evidence and had adopted an erroneous measure of damages and thereupon new commissioners were appointed. In such a case the first report must be regarded as no appraisal and no report, and the report of the new commissioners as the original report; an appeal, therefore, may be taken from its confirmation to the Appellate Division, the determination of which is reviewable by the Court of Appeals.</p> <p>Matter of Daly, 116 App. Div. 798, reversed.</p>

judgment of the Appellate Division of the Supreme Court in the third judicial department, entered July 2, 1906, modifying and affirming as modified a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. The nature of the action and the facts, so far as material, are stated in the opinion.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 25, 1907, which reversed an order of Special Term denying a motion to cancel a Us pendens and granted said motion. The facts, so far as material, and the questions certified are stated in the opinion. This action, being brought to enforce a vendor’s lien, is within section 1670 of the Code of Civil Procedure.

Lavan street in the city of Kingston runs northerly from Staples street to Andrew street. From the point of intersection Andrew street continues westerly to Mary’s avenue, which extends thence in a northerly direction for more than seven hundred feet to a point not specified. This proceeding was instituted to review a special assessment against property of the relator for grading portions of the three streets named and constructing a sewer through, the same.

<p>Abatement — When Pendency op Action upon Fire Insurance Policy Is Hot a Bar to an Equitable Action to Reform Policy so as to Conform to Contract of Insurance. In an action brought upon a policy of fire insurance to recover for the loss of merchandise, destroyed by fire, claimed to have been insured by such policy, the insurance company interposed the equitable defense that by reason of a mutual mistake of the parties in describing tbe building in which the merchandise intended to "be insured was contained, the policy did not conform to the contract of insurance, which did not cover and was not intended to cover the merchandise destroyed by fire, and asked that the policy he reformed and the complaint in the action dismissed. After the action had been moved for trial at the Special Term it was stricken from the calendar, upon the motion of the plaintiff, on the ground that the facts alleged in the answer were interposed asan equitable defense and not as a counterclaim, hut "without prejudice to the defendant to apply to the court to amend its answer by setting up a counterclaim.” Subsequently the insurance company brought an action against the plaintiff in the first action to reform the policy in question, and the defendant in the latter action alleged, as a defense and bar thereto, the pendency of the action brought by him against the insurance company, and asked that the complaint in the second action he dismissed. Held, that the pendency of the first action was not a bar to the second action. While the actions are between the same parties, the actions are not for the same thing. One is a legal action to recover on a contract, and the other is an equitable action to reform the contract itself. While the actions relate to the same subject matter, the purpose of the actions is entirely different, and the relief demanded antagonistic and inconsistent; and hence there is not another action pending between the same parties for the same cause of action.</p> <p>Wat. Fire Jus. Go. V, Hughes, 105 App. Div. 683, affirmed.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. There is no recognized principle of law upon which the pendency of the Vermont action or judgment entered therein against the defendant can be held to be a defense to the plaintiff’s cause of action or a bar to the prosecution of this action.

The facts, so far as material, are stated in the opinion. The communication set forth in the specification, which was addressed by relator to the board of associated engineers, and which was made the basis of the charges herein, was privileged, and, therefore, the charges predicated upon this communication could not, as a matter of law, be maintained.

The nature of the action and the facts, so far as material* are stated in the opinion. Plaintiff’s recovery should be not for the return of th§ purchase price and full indemnification to him for what he paid for transportation, but for damages arising out of the alleged breach of warranty.

The facts, so far as material, are stated in the opinion. ■ The statute, for the violation of which the defendant was convicted, is a valid exercise of the police power of the state. (People v. Ewer, 141 N. Y. 129 ; People v. Havnor, 149 N. Y. 195; Health Dept. v. Rector, 145 N. Y. 32; Commonwealth v. H. M. Co., 120 Mass. 383 ; State v. Buchanan, 29 Wash. 602; People ex rel.

The facts, so far as material, are stated in the dissenting opinion. The order of adoption was void for want of consent of the child’s father. (L. 1896, ch. 272, § 61, subd. 3.) The child in question had not been abandoned. (Hale v. Oldroyd, 14 M. & W. 789 ; Johnson v. Mallory, 40 Cal. 299; Stephens v. Mansfield, 11 Cal. 363; Shannon v. People, 5 Mich. 89.) The father of the child should have been notified of the respondent’s application for her adoption.

The nature of the action and the facts, so far as material, are stated in the opinion. The defendant is liable in this action, for the contract in question was either made by him in his own behalf or it was made by him as agent of an undisclosed principal, and in either event he is liable.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 28, 1906, which reversed an order of Special Term confirming the report of commissioners appointed to fix the compensation to'be made for property taken in the above-entitled proceeding and directed the appointment of new commissioners. The facts, so far as material, and the questions certified are stated in the opinion.

The plaintiff’s intestate, a fireman upon one of defendant’s locomotive engines, was killed in a “ head-on” collision which occurred on the defendant’s railroad between Delevan and Lime Lake on the 25th day of July, 1904. The defendant’s railroad has its northerly terminus at Buffalo and runs thence in a southerly direction through various towns and villages in this state to the city of Olean and from thence into the state of Pennsylvania.

<p>Rochester (City of) — Corporation Counsel Entitled to Costs Taxed in Judgment of Foreclosure Obtained by City, Although Property Was Bid in by City for Less Than Judgment. Under the charter of the city of Rochester (L. 1898, ch. 182, §§ 414, 418) which provides that “in actions and proceedings in which the city shall be successful,” the corporation counsel may “ receive to his own use all costs and allowances which shall be collected from the adverse party,” the corporation counsel is entitled to the taxable costs fixed by the judgment in an action brought by the city to foreclose tax liens upon certain real estate, although the property was hid in by the city for less than its judgment, where the amount of its bid was greater than that bid by other responsible persons, and the city has received a deed and become the owner of the property; under such circumstances the amount of plaintiff’s taxable costs must be regarded as having been collected from the adverse party.</p> <p>Sutherland v. Oity of Bochester, 112 App. Div. 712, reversed.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 6, 1907, which reversed an order of Special Term denying a motion for the continuance of an injunction pendente lite and granted such motion. The facts, so far as material, and the questions certified are stated in the opinion.

The facts, so far as material, are stated in the opinion. The offer to purchase made by the petitioners became a contract of purchase and sale when the receiver was directed by order of the court to accept the offer and did so, and such contract required that the premises be conveyed free and clear of all incumbrances other than those stated in the offer. (Matter of Denison, 114 N. Y. 621; F. L. & T. Co. v. B. & S. W. Ry. Co., 32 Fed.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February 14, 1907, which reversed an order of Special Term denying a motion to vacate and set aside the service of a summons and granted such motion. The nature of the action, the facts, so far as material, and the question certified are stated in the opinion.

<p>1. Foreign Bill oe Exchange — Rights and Liabilities op Drawers There op Governed by Láw op Place Where Bill Is Drawn. The rights and obligations of the drawer of a hill of exchange are determined and fixed by the law of the place where he draws it, and he is discharged by failure to protest the same in accordance with the laws of that place, such failure being due to different laws or customs prevailing in the country where the bill is payable. The drawer of such a bill does not contract to pay the money in the foreign place on which it is drawn, hut only guarantees its acceptance and payment in that place by the drawee, and agrees in default of such payment, upon due notice, to reimburse the holder in principal and ■ damages at the place where he entered into the contract. His contract is regarded as made at the place where the hill is drawn; and as to its form and nature and the obligation and effect thereof it is governed by the law of that place in regard to the payee and any subsequent holder.</p> <p>2. When Instrument Is Foreign Bill op Exchange — Negotiable Instruments Law, §§ 210, 213. A written instrument for the payment of money addressed by a firm doing business in the city of New York to a firm doing business in Vienna, Austria, signed by the firm giving it, requiring the firm to which it is addressed to pay on demand a specified sum in English money to the order of the drawers and charge the same to account of cargo of pig iron shipped to the Vienna firm by a specified steamship, is a foreign hill of exchange, within the definition of the Negotiable Instruments Law (L. 1897, ch. 612, § 210, as amd. by L. 1898, ch. 336,.§ 25, and § 213.)</p> <p>3. When Drawer op Foreign Bill op Exchange Released prom Liability Thereon, Notwithstanding the Instrument Is a Mere “ Commercial Order ” por Money in Country Where Same Is Payable. Where such hill of exchange was indorsed by the drawers to a firm of hankers in the city of New York, who sent it to their agent in Vienna for collection, and such agent failed to demand payment thereof, in accordance with the laws of this state, and upon the refusal of the drawees to pay, failed to protest the same and give notice of such protest to the drawers in the manner required by the laws of this state, the latter are discharged from any liability thereunder, notwithstanding the instrument might have been, under the laws of Austria, a mere “ commercial order” for the payment of money of which no protest need be made.</p> <p>Amsinch v. Bogers, 103 App. Div. 428, affirmed.</p>

The object of this action was to determine the rights of the parties to a fund realized from a sale in bankruptcy of the property of the Waterloo Organ Company, a manufacturing corporation formerly carrying on the business of making and selling organs, pianos and other musical instruments in the village of Waterloo.

The facts, so far as material, are stated in the opinion. It was prejudicial error for the prosecution to blacken the character of the accused by vague generalizations of misconduct and by proof of specific wrongful acts towards third persons.

Appeal by the administrator from an order of the Appellate Division of the Supreme Court in the second judicial department, entered March 8, 1907, which reversed an order of the Kings County Surrogate’s Court exempting the estate of Mary Costello, deceased, from a transfer tax.

The nature of the action and the facts, so far as material, are stated in the opinion. The defendant was clearly responsible for its acts; it was not wholly a question as to what individuals did, it was the tent, the organization which 'was created by the defendant. As to the question of the tent being the servant and agent of the defendant, if there was any conflict of testimony upon the question, then it was purely a question of fact for the jury.

The nature of the action and the facts, so far as material, are stated in the opinion. The city of Rochester has no monopoly entitling it alone to supply water. (C. R. B. Co. v. W. B. Co., 11 Pet. 420 ; C. B. Co. v. B. B. Co., 27 N. Y. 87; P. R. R. Co. v. Canal Comrs., 21 Penn. St. 22; R. R. Co. v. L. R. R. co., 13 How.

The nature of the action and the facts, so far as material, are stated in the opinion. The defendant is liable to the plaintiff for the injuries sustained by him because of the falling of the -lamp caused by the negligence of the defendant in failing to properly and' safely attach the same to the ceiling, and in maintaining the same in an unsafe and improper condition. (Sharp v. E. R. R. Co., 184 N. Y. 100; Kuelling v. R. L. Mfg.

The nature of the action and the facts, so far as material, are stated in the opinion. Irvine, having designated the plaintiff as his beneficiary for a valuable consideration passing from her, had no right to revoke such designation and substitute another beneficiary in her place. (Smith v. N. B. Society, 123 N. Y. 85 ; Conselyea v. Supreme Council, 3 App. Div. 464; 157 N. Y. 719 ; Webster v. Welch, 57 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The defendant’s interest in Murray or Osprey island, affected by the plaintiff’s tax deeds, is such that he can defend his title by establishing the invalidity of such deeds. (Deering v. Reilly, 167 N. Y. 184; Jarvis v. Lynch, 157 N. Y. 445; Satterlee v. Kobbe, 173 N. Y. 91; People ex rel.

The nature of the action and the facts, so far as material, are stated in the opinion. The trial court erred in excluding evidence offered by defendant. (McCarthy v. Meany, 183 N. Y. 190; Peek v. Doran & Wright Co., 57 Hun, 343; Kingsbury v. Kirwan, 77 N. Y. 612 ; Story v. Solomon, 71 N. Y. 420 ; Bigelow v. Benedict, 70 N. Y. 204; Bartlett v. Slucher, 215 Ill. 350; Weare v. People, 209 Ill. 528.) There were no errors in the exclusion of evidence.

The nature of the action and the facts, so far as material, are stated in the opinion. All facts necessary to a reversal were established without controversy, and only questions of law are presented. The question of law whether, upon such uncontroverted facts, the decision below was right, is fully within the jurisdiction of this court. (Miller v. N. Y. & N. S. Ry. Co., 183 N. Y. 123.) The decision appealed from was not unanimously affirmed by the Appellate Division.

<p>1. Streets — Conveyance op Pee, Subject to Public Basement. Where a deed conveys all the land within certain boundaries, which include the north half of a public highway, and then specifically reserves for a road the strip of land “which now constitutes the north half of the highway, * * * opened to the public,” such conveyance operates to vest in the grantee the fee of said strip, subject, however, to the easement of the public thereon for the purpose of a road or highway.</p> <p>2. Injunction Restraining Telephone Company prom Erecting Poles and Wires on Public Street. The owner of the fee of land to the center of a city street, subject to the easement of the public thereon for the purpose of a road or highway, is entitled to an injunction enjoining and restraining a telephone company, which has not obtained his consent, from entering upon such land for the purpose of digging holes and erecting poles for the stringing of wires, and, also, to damages for injuries caused thereby to the shade trees upon such land, notwithstanding the télephone company had been granted a franchise by the city to use the street for the erection of poles and the stringing of"wires, since such use of the street is not a use deemed to be within the grant of the land for street -purposes, but is an additional burden upon the fee for which compensation must be made to the owner.</p> <p>Osborne v. Auburn Telephone Oo., Ill App. Div. 702, reversed.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in finding as a conclusion of law that publication of the notice of sale in the “supplement” was invalid. (L. 1896, ch. 908, § 151.) The learned trial judge erred in interpolating into the statute a provision that it does not need.

of the city of Mew York upon an award made to the petitioners for lands taken by said city in condemnation proceedings. The facts, so far as material, are stated in the opinion. Prospect Park is a public place. The retainer, therefore, covers the Willink entrance proceeding. (L. 1850, ch. 144; L. 1860, ch. 488; L. 1861, ch. 340.) The retainer is not ambiguous.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 3,1907, which affirmed an order of Special Term denying a motion to set aside an order directing service upon certain of the defendants herein by publication. In 1866 one Elizabeth A. Morgan made application in this state to the defendant insurance company for a policy of insurance upon the life of her husband, Orson A. Morgan.

<p>1. Constitutional Law — Invalidity on Act Providing nor Recount on Votes Cast nor Office of Mayor of Mew York City. Chapter 538 of the Laws of 1907, providing for a judicial recount and iecanvass of the votes cast for the office of mayor at the election of the 1th of Movember, 1905, in all cities of the first class in which the ballots have been preserved, is unconstitutional, in that the proceeding authorized is either a recanvass of the votes cast for the office of mayor or is a judicial hearing and determination of the title of the respective candidates for that, office: if a recanvass, it contravenes section 6 of article 8 of the Constitution, providing for a recanvass by a bi-partisan hoard, which a court is not; if a judicial determination of the title to office, it contravenes section 3 of article 1 of the Constitution, providing for atrial by jury “in all cases in which it has heretofore been used," of which an action of quo warranto was one.</p> <p>3. Legislature Has Mo Power After Determination of Election to Alter Result. Where a canvass has been concluded under the statutory provisions for its conduct existing at the time the legislature cannot create a new tribunal with power to recanvass the election and to award possession of the office to another claimant.</p> <p>Mattel■ of Metz v. Maddox, 131 App. Div. 147, reversed.</p> <p>People ex rel. Metz v. Payton, 120 App. Div. 814, reversed.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The vendee exercised his option to rescind the contract and is, therefore, only entitled to damages in this action. In so far as his action asks for specific performance it cannot be maintained. (Haggard v. Scott, 1 R. & M. 293; Lewis v. White, 16 Ohio, 444; Sterinhardt v. Baker, 25 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The trial court erred in refusing to submit to the jury the question of the time at which plaintiff’s claim was disallowed, as bearing on the defense of the short limitation contained in the by-laws-(Butler v. Supreme Council, 105 App.

The nature of the action and the facts, so far as material, ■ are stated in the opinion. The defendant’s foreman, Michael Mullin, was a person whose sole or principal duty was that of superintendence, andwas exercising superintendence with the knowledge and consent of the defendant, within the meaning of the Employers’ Liability Act. (Faith v. N. Y. C. R. R. Co., 109 App. Div. 222; McBride v. N. Y. T. Co., 101 App.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 6, 1907, which affirmed an interlocutory judgment of Special Term overruling demurrers to the complaint in a creditor’s action to enforce the liability of stockholders for amounts unpaid on their stock. The following questions were certified : “ First. Is there a defect of parties defendant to this action % “ Second.

<p>Appeal — Unanimous Affirmance in Criminal Case Precludes Review of Pacts. The constitutional provision (Const, of N. T. art. 6, § 9) as to the conclusiveness of an unanimous decision of the Appellate Division as to all questions of fact is unqualified in its language ard precludes a review thereof by the Court of Appeals in criminal as well as in civil causes.</p>

Appeal, by permission, from a judgment of the Appellate . Division of the Supreme Court in the third judicial department, entered December 18, 1906, which affirmed an interlocutory judgment entered upon a decision of the court at a Trial Term dismissing that part of defendant’s counterclaim which sought a reformation of the contract on which this action was brought.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered October 3, 1905, modifying and affirming as modified a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 15, 1907, which dismissed a writ of certiorari and confirmed the action of the defendants in designating a Democratic newspaper to publish the Session Laws and concurrent resolutions of the legislature in Monroe county.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 28, 1907, which affirmed a decree of the Hew York County Surrogate’s Court judicially settling the accounts of the executors of Sylvester H. Leary, deceased.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered May 18, 1907, which affirmed an order of Special Term granting a motion for an order of reference and appointing a referee to hear and determine the issues involved in the within action.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 26, 1906, affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term; also appeal from an order of said Appellate Division, entered March 12, 1902, which reversed an interlocutory judgment'in favor of plaintiff entered upon a decision of the court on trial at Special Term and granted a new trial in an action brought by the heirs of an incompetent person to have a trust impressed upon certain real property alleged to have been purchased with the money of the incompetent person by his committee who took title in her own name.</p>

the fourth judicial department, entered May 19, 1906, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court and an order denying a motion for a new trial.