Volume 28 — Bedell

<p>Corporations —Authority op Executive Committee op Board op Directors Suspended by Call por Meeting op Board. The executive committee of the board of directors of a manufacturing corporation which, under a by-law, bad authority to exercise any powers of the board when the board was not in session, has no power to execute, immediately prior to a meeting of the board which had been called for the afternoon of the same day, a contract appointing a sole selling agent of the output for a terra of years; the calling of a meeting suspended the powers of the committee to act in governmental matters, and the directors having subsequentty considered and rejected such contract, an action for damages for the breach thereof is not maintainable, the plaintiff being chargeable with notice of the lack of.authority of the committee.</p>

and granted a new trial. The facts, so far as material, are stated in the opinion.

The nature of the action and the facts, so far as material, are stated in the opinion. The company having elected to examine the insured at Oswego, thereby putting him to trouble and expense, waived its right to claim the invalidity of the policy as to all facts within its knowledge at the time. ( Wise v. P. Ins. Co., 18 Wkly. Dig. 128; 101 N. Y. 637; Titus v. G. F. Ins. Co., 81 N. Y. 410; Pratt v. D. H. Ins. Co., 130 N. Y. 206; Nugent v. M. Ins. Co., 106 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The contract is not authorized by the city’s charter. (L. 1905, ch. 357, tit. 20, § 19 ; Cooper v. City of Brooklyn, 11 App. Div. 71; 160 N. Y. 657; Haupt's Appeal, 3 L. R. A. 536 ; Bly v. W. D. M. W. Co., 197 Penn. St. 80 ; Quincy v. Boston, 148 Mass. 389 ; Elliott on Mun. Corp. 139 ; Smith on Mun.

<p>Action for the Recovery of Money Paid by Mistake. In an action to recover money alleged to have been paid by mistake, it appeared that the plaintiffs and defendants were both brokers doing business in the city of New York; that a foreign ageut of defendants transmitted orders from foreign customers and guaranteed collection of their accounts, which were charged and credited to such agent personally; that one of such customers owed the defendants a balance; that in response to a request by such agent to settle, the customer cabled the plaintiffs to pay “to defendants §35,000 for account of G.” (the agent) which they did, receiving a receipt to the effect that it was paid on account of G.; on the same day the plaintiffs instructed the customer to pay their foreign correspondents a sum much more than §35,000; thereafter the customer failed and the next day the plaintiffs cabled G. that they had paid such sum for his account, to which he replied that the payment was not on his account, but rvas on account of the customer; thereupon they demanded the return of the money paid to the defendants upon the ground that G. had not authorized the payment. . Held, that the plaintiffs in paying the defendants relied solely upon the responsibility of the customer, and neither in fact nor in their belief extended any credit to G.; there was, therefore, no mistake as to any material fact, and a recovery could not be sustained.</p>

<p>Racing — Mandamus to Compel State Commission to Grant License. Mandamus will lie to compel the state racing commission to issue a license to conduct races, when the refusal to grant such license was on the grounds, which must be considered capricious and arbitrary, that the racing season had been divided up among six other tracks, that the allotment of dates was a proper regulation of racing and that to grant it would interfere with racing upon other tracks. There is no provision in the statute (L. 1895, chap. 570) authorizing the commission to allot particular dates on which races on the various tracks may be run, but merely to grant or refuse a license to hold races and then the refusal must not be arbitrary. The object of the statute was to insure the proper conduct of racing, not to prevent competition between the several racing associations, nor to secure any special pecuniary benefit to any of them.</p>

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered February 7, 1907, which affirmed an interlocutory judgment entered upon the report of a referee in an action of partition.

The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in charging the jury that the knowledge of Sparks was not the ■ knowledge of the plaintiff.

The nature of the action and the facts, so far as material are stated in the opinion. The cause of action herein, if ant, is not one cognizable in equity. Mo cause of action, in equity, to redeem a pledge or otherwise is presented by the pleadings or the evidence in this case. (Jacobson v. B. L. Co., 184 N. Y. 152; Roberts v. Ely, 113 N. Y. 132; Smith v. Bodine, 74 N. Y. 30; Uhlman v. N. Y. L. Ins.

De Forest Wireless Telegraph Company and directed the disposition of certain moneys theretofore paid into court on the discontinuance of that action. The facts, so far as material, are stated in the opinion. The dogma of the Appellate Division that an attorney’s lien merely protects him in case the client has performed his contract and does not secure damages caused by a breach of the same, is untenable. (Keane v. Keane, 86 Hun, 159; Jeffards v. B. H. R. R. Co., 49 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff was entirely within its rights in purchasing material for the flooring in the south as long as it conformed to the specifications, and as long as it was not forbidden so to do by the specifications. To say that the defendant can take advantage of plaintiff’s superior ability in the purchase of its materials and be entitled to a reduction is unfair and unjust and illegal.

The facts, so far as material, are stated in the opinion. The said Theodore F. Yail and William D. Baldwin are not entitled to compensation as trustees; that is, to double compensation. (McAlpine v. Potter, 126 N. Y. 285; Johnson v. Lawrence, 95 N. Y. 154; Matter of Clinton, 12 App. Div. 132 ; Matter of Reed, 45 App. Div. 196; Matter of Hogarty, 62 App. Div. 79; Matter of U. T. Co., 70 App. Div. 5; Jewett v. Schmidt, 83 App.

This action was brought by the plaintiff to recover from the defendant, the Provident Savings Life Assurance Society of New York, the amount due upon a policy of life insurance, issued upon the life of Benjamin P. Peed in favor of the plaintiff, nominated therein as creditor. The complaint alleged that the plaintiff was a nephew of the assured and his creditor to the amount of upwards of $8,000.

The nature of the action and the facts, so far as material, are stated in the opinion. Proctor ivas the attorney, agent and adviser of the plaintiff. Their relations were of trust and confidence and had been such for nearly twenty years last past. (Smith v. Kidd, 68 N. Y. 130.) There are no facts in the case to warrant the presumption that Proctor became the agent of the defendant, and the effort to do so is not supported by the evidence.

Disney, deceased. The facts, so far as material, are stated in the opinion. The legacy bequeathed to Mary E. Disney by paragraph “ Second” of the will lapsed by reason of her dying in the lifetime of the testator and became part of the residuary estate.

The nature of the action and the facts, so far as material, are stated in the opinion. Plaintiff brought defendant and John F. Sweeney together, and as a consequence thereof such negotiations were had as to result in the execution of the agreement which bound defendant and the Sweeney Company to enter into a lease of the premises. The plaintiff, therefore, had done all that was required of him and was entitled to receive his compensation. (Kiernan v. Bloom, 91 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The defendant, although a municipal corporation, was engaged solely in the discharge of governmental functions, in the operation and management of the police station, and cannot be held liable for any alleged negligence of the servants and employees necessarily engaged in the maintenance and furtherance of the uses to which said building was devoted. (Moest v. City of Buffalo, 116 App.

The facts, so far as material, are stated in the opinion. Section 21 of the. Civil Service Law is not repugnant to section 3 of article 5 of the State Constitution. (People ex rel. McClelland v. Rob erts, 148 N. Y. 367; Matter of Stutzbach v. Coler, 168 N. Y. 422 ; People ex rel. Killeen v. Angle, 109 N. Y. 564; People ex rel. Jackson v. Potter, 47 N. Y. 375 ; Smith v. People, 47 N. Y. 330; People v. Rosenbury, 138 N. Y. 415 ; People ex rel.

This is an action to replevy some coupons originally attached to a bond issued by the Adams Express Company and appellant’s right to succeed turns on the question whether said bond and coupons were negotiable and acquired by respondents in due course for value. The controlling facts may be summarized as follows : In January, 1902, the appellant owned a certain bond of the Adams Express Company to which were attached interest coupons for $20 each, then unmatured.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered April 30, 1907, which reversed an interlocutory judgment of Special Term sustaining a demurrer to the complaint and overruled such demurrer. This action was brought by the plaintiff to recover damages: for injuries sustained by him, which are alleged to have been caused by the negligence of the defendant’s servants.

. This action was brought to recover damages alleged to have been sustained by the plaintiff through .the negligence of the defendant. At the close of the evidence for the plaintiff he was nonsuited by the trial justice, but on appeal to the Appellate Division the judgment was reversed and a new trial granted, two of the justices dissenting.

<p>Insurance, Life — Stipulation That Policy Must Be Construed According to Law of State Where Issued — When Term “Heirs” Includes Widow of Assured. Where a policy of life insurance issued by an Ohio insurance company was made payable to the “heirs” of the insured and contained a stipulation that it should be construed by the laws of that state only, the rights of the beneficiaries thereunder must be determined by the laws of Ohio; and wkeie such laws provide that a widow is entitled to the personal property of an in’estate, as next of kin, the widow of the assured is included in the term “ heirs ” as used in the policy; and the fact that the assured and all the beneficiaries were and are residents of this state and an action is brought here to determine whether the widow can share in the proceeds of the policy is immaterial, since the assured had the right to make such a contract, and the courts of ■ this state are bound to construe it accordingly.</p>

<p>1. Admission to the Bar- — Boles Construed. The rules for admission to the htir do not require a law school to certify to the state board of law examiners that its students have been “ graduated ” or have “ received a degree ” in order that they may be admitted to examination, it being sufficient for the certificate to state that the student has “successfully completed the prescribed course of instruction ” during the periods named.</p> <p>2. Same. It is sufficient for a law student, whose attendance at a law school had already begun when the present rules went into effect, to show full compliance with the rules adopted December 2, 1895, without showing compliance with the rules which went into effect July 1,1907, but the proofs submitted, as to time of study, etc., must be satisfactory to the state board of law examiners.</p> <p>3. Same. Under subdivision 1 of rule 5 a law school may properly grant a certificate of “part time” for less than a year, but the applicant should be credited only with the time actually spent in the law school, to the same extent and no more, as if the time had been spent in a law office, and the proofs must show to the satisfaction of the state board of law examiners that the applicant successfully pursued the prescribed course of instruction during that time.</p>

This action was commenced on the 28th of November, 1904, in the County Court of Jefferson county.

Appeal, by permission, from an order of the Appellate. Division of tbe Supreme Court in the first judicial department, entered July 12, 1906, which affirmed an interlocutory judgment of Special Term overruling a demurrer to the answer. The following questions were certified : “ 1. Is the affirmative defense contained in the amended answer of the defendant sufficient in law? “ 2. Is the defense contained in the supplemental answer of the defendant sufficient in law ? “ 3.

The nature of the action and the facts, so far as material, are stated in the opinion. Parties may agree that the acceptance of the principal debt only shall not affect the creditor’s right to recover by subsequent action the interest diie as damages for default in payment of principal, and such an agreement is legal and enforceable. (Burr v. Burch, 4 Fed.

The nature of the action and the facts, so far as material, are stated in the opinion. A notary or commissioner of deeds is entitled to compensation for services as such from a municipality while holding another office under such municipality. (Merzbach v. Mayor, etc., 163 N. Y. 16.) The testimony shows an implied waiver of Morgan’s right to charge for fees, inasmuch as the taking of these affidavits was part of his duties as messenger.

The plaintiff is a foreign corporation. It was incorporated pursuant to the laws of the state of New Jersey.

The nature of the action and the facts, so far as material, oare stated in the opinion. In computing the profits the referee should have allowed the defendant to deduct the expense of selling the goods from the gross receipts. (Tremaine v. Hitchcock, 90 U. S. 518.) The referee erred in allowing interest from the commencement of the action, because the amount of profits and damages was unliquidated and the method of computation in doubt.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 18, 1907, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion. '</p> <p>The trial judge was in error in refusing to charge the jury that the burden of proving that the plaintiff was unable to properly care for himself at the time of the accident was upon the plaintiff. (McGreel v. B. O. Co., 153 N. Y. 265; Whitlatch v. F. & C. Co., 149 N. Y. 45, Hurd v. King, 56 App. Div. 595.)</p> <p>There is no reversible error in any of the rulings of the trial court. (Costello v. T. A. R. R. Co., 161 N. Y. 324; Tucker v. N. Y. C. & H. R. R. R. Co., 124 N. Y. 308; Zwack v. N. Y., L. E. & W. R. R. Co., 160 N. Y. 362; Dempsey v. B. H. R. R. Co., 96 N. Y. Supp. 639; Hill v. Baltimore & N. Y. R. Co., 75 App. Div. 325; Kennedy, v. Hills Bros., 54 App. Div. 29; Pettit v. Burkhard, 106 N. Y. Supp. 245; Kaplan v. M. St. Ry. Co., 90 N. Y. Supp. 585; Mott v. C. I. Co., 73 N. Y. 543; Masterson v. N. Y. C. & H. R. R. R. Co., 84 N. Y. 247.)</p>

The case made by the complaint was in equity and the only specific relief demanded was for an injunction restraining the defendants from violating a certain contract. The allegation of the plaintiffs that they had no adequate remedy at law was denied by the defendants Fitzpatrick, Weller and Ball, who did not, however, plead as an affirmative defense that the plaintiffs' had such a remedy.

The facts, so far as material, are stated in the opiniqn. The park commissioner of Brooklyn was not the municipal authority authorized by.the Transportation Corporations Law to give consent for the use of streets or highways to the relator. (L. 1890, ch. 556, §§ 60, 61; People ex rel. W. G. Co. v. Deehan, 153 N. Y. 528; People ex rel. N. Y. & R. Co. v. Cromwell, 89 App. Div. 291; Ghee v. N. U. G. Co., 158 N. Y. 510 ; Irvine v. A. A. R. R. Co., 10 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The trial court erred in its refusal to charge that if the jury believed that the plaintiff gave testimony at the Magistrate’s Court admitting taking the flowers, she could not recover in this action. (Farrell v. Friedlander, 63 Hun, 254; H. F. Ins.

The facts, so far as material, are stated in the opinion. In a certiorari proceeding under the Tax Law, such as this is, the allegations of the petition not denied must be taken as true, and the allegations denied by the return must be taken as merely put in issue by such denial. (People ex rel. M. R. Co. v. Barker, 152 N. Y. 417: People ex rel. C. L. Co. v. Feitner, 81 App. Div. 118 ; People ex rel. B. Mfg. Co. v. Wells, 84 App. Div. 330.) The land is not taxable.

department, entered March 22, -1907, which reversed a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term and an order denying a motion for a new trial and granted a new trial. The nature of the action and the facts, so far as material, are stated in the opinion. The complaint was properly dismissed, as no negligence was shown on the part of the defendant in maintaining the runway, which, it is conceded, was not out of repair.

The nature of the controversy and the facts, so far as material, are stated in the opinion. Section 1554 of the Greater New York charter does not prohibit the laying or purchase of patented pavements and articles by the city of New York. (Matter of Eager, 46 N. Y. 100 ; Matter of Dugro, 50 N. Y. 513 ; Baird v. Mayor, etc., 96 N. Y. 567; Matter of McCormack, 60 Barb. 128; Kilbourn v. Thompson, 103 U. S. 168; People ex rel.

<p>Motor Vehicle Law — Power of Municipalities to Exact and Enforce Speed Ordinances —Penalties Prescribed by Municipal Ordinance Not Exclusive of Those Prescribed by General Law. Under the provisions of the Motor Vehicle Law (L. 1904, cli. 538), permitting the local authorities of cities and incorporated villages to “limit by ordinance, rule or regulation hereafter adopted, the speed of motor. vehicles on the public highways, ” such municipalities have only the power to prescribe a lower rate of speed within their territorial jurisdiction than that permitted by the general law. The ordinance by which this is accomplished must prescribe the same rate for all other vehicles; the same penalties for a violation thereof must he applicable to all other vehicles; and the ordinance cannot become effective until signs have been erected which notify all drivers upon entering the limits of the municipality that they are required to lessen their speed to the rate established. Penalties may be prescribed for exceeding such rate, and any person driving a motor vehicle at a speed in excess thereof, but not in excess of the speed limitation prescribed by the general law, is liable to prosecu-' tion and punishment under the ordinance only; but any person who violates the speed limitations prescribed in the general law itself,-even though such violation occurs within the limits of the municipality, remains liable to prosecution and punishment under the provisions of the general law.</p>

<p>1. Charitable Corporations — Charter Provisions Exempting from Taxation May Be Altered or Repealed by Legislature in Its Discretion. Although the corporate charter of a charitable educational institution (L, 1859, ch. 279) authorizes its founder to convey to it certain property, prescribing the form of the deed and the purposes of the corporation, and further provides that the property conveyed and all endowments made to the corporation shall be exempt from taxation “while the same shall be appropriated to the uses, intents and purposes * * * provided for,” a contention that the founder was a party to the incorporation aud that in consideration of the conveyance which he made the state agreed that the property conveyed, while devoted to the charitable uses mentioned, should not be taxed and that such agreement constituted a contract which the state could not subsequently impair, cannot be upheld, since the State Constitution in force at the time of the incorporation (IT. Y. Const, of 1846, art. 8, § 1) provided that all general laws and special acts authorizing the formation of corporations “may be altered from time to time or repealed,” and the founder when he executed the deed and the incorporators when the}-" accepted the charter must be presumed to have known that tin's was the fundamental law of the state.</p> <p>2. Tax Law — Amendment Imposing Recording Tax on Mortgages — Charter Provisions of Charitable Corporations Exempting from Taxation Repealed Thereby. Where, therefore, by an amendment to the Tax Law (L. 1906, ch. 532) a recording tax upon mortgages is thereafter imposed and it is provided that “ no mortgage of real property situated within this state shall he exempt, and no person or corporation owning any debt or obligation secured by mortgage of real property situated within this state shall he exempt from the taxes imposed by this article by reason of any provision in any private act or charter which is subject to amendment or repeal by the legislature," the exemption from taxation provided for in the charter of the corporation in question, so far as mortgages belonging to it are concerned, must he deemed to have been repealed, and an application for a peremptory writ of mandamus to compel the register of a county to record such a mortgage without the payment of any tax thereon should he denied.</p>

On the 5th day of November, 1903, Mary McArdle, a citizen of the United States, died intestate a resident of the city of New York seized in fee of a certain piece or parcel of real property known as 220 Spring street in said city. She did not leave her surviving a descendant, father, mother, brother, sister, or the descendant of a deceased brother or sister.

The nature of the action and the facts, so far as material, are stated in the opinion. The consent of the common council is illegal because it does not contain the condition that the franchise shall be sold at public auction. (L. 1890, ch. 565, § 93.) The alleged consent of the local authorities is no consent at all, because it is indefinite, uncertain, irregular and incomplete.

The nature of the action and the facts, so far as material, are stated in the opinion. The agreement set forth in the complaint was not unlawful and did not establish a conspiracy. (Rich v. N. Y. C. & H. R R. R. Co., 87 N. Y. 382; Park & Sons Co. v. N. D. Assn., 175 N. Y. 1; A., T. & S. R. R. v. D. & N. R. R , 110 U. S. 680; P. & A. C. R. R. Co. v. A.,T. & S. R. R. Co., 73 Fed. Rep. 439.) There was no conspiracy to injure plaintiff.

<p>Civil Service — New York City— Reduction of Salaries Authorized by Chapter 436, Laws of 1902 — Regulation with Respect to Notice and Hearing of Employees Removed from Office Inapplicable to an Extraordinary Situation. Chapter 436 of the Laws of 1902 providing, among other things, that the board of estimate and apportionment of the city of New York within twenty-two days should revise the budget, and that during the same period salaries in any of the offices, departments, bureaus, hoards or commissions might, he changed to meet the budget, in view of the urgent and unprecedented situation which the legislature had to meet, must be regarded as a valid emergency act, passed under the stress of existing circumstances, and during the few days it was to be in force was intended to suspend or render inactive and inapplicable all statutes inconsistent therewith, one of which was section 1543 of the charter providing in the case of the removal of a regular clerk, etc., for a hearing on notice and in the case of veterans a trial. The action of the board, therefore, during the prescribed period in reducing the salary of a clerk in the finance department, who was a veteran and one of a vast number of employees in various departments whose salaries were reduced, which reduction according to the rules of the civil service commission lowered his grade without giving him an opportunity to be heard and without entering in the records of the department the true grounds therefor, was not a removal within the meaning of the civil service section of the charter or any civil service statute for the state at large; it was a change on a vast scale required by the exigencies of state and the financial condition of the city, and such changes do not admit of an opportunity to be heard and a personal explanation by every one of the great number of incumbents affected; the clerk, therefore, cannot recover from the municipality the amount his salary was reduced.</p>

The nature of the. action and the facts, so far as material, are stated in the opinion. The court, ought not to have allowed the summons and pleadings to be amended to conform to the proofs. (Code Civ. Pro. § 723 ; Van Cott v. Prentice, 104 N. Y. 46 ; Davis v. N. Y., L. E. & W. R. R. Co., 110 N. Y. 646; Bockes v. Lansing, 74 N. Y. 437; Union Bank v. Mott, 10 Abb. Pr. 372; Allaben v. Wakeman, 10 Abb. Pr. 163 ; Davis v. Mayor, etc., 14 N. Y. 506; Keating v. Stevenson, 21 App.

The facts, so far as material, are stated in the opinion. The damages allowed by the referee were properly recoverable on this motion. (Perlman v. Bernstein, 93 App. Div. 335; 179 N. Y. 531; Holcomb v. Rice, 119 N. Y. 598; Harter v. Westcott, 155 N. Y. 211; Newton v. Russell, 87 N. Y. 527; Rose v. Post, 56 N. Y. 603; McGown v. Barnum, 42 Misc.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff failed to show any negligence or other failure of duty toward the intestate on the part of the defendant, and the order of the Appellate Division, reversing the judgment entered upon the nonsuit at Trial Term, was, therefore, erroneous.

The claimant had no cause of action against the state unless it is created by the Enabling Act. (People ex rel. Hall v. Woodruff, 57 App. Div. 342.) If the Enabling Act be construed to give to the claimant a right of action against the state where none existed before, it is void as violative of the Constitution. (Const, of N. Y. art. 3, § 19.) The court erred in allowing plaintiff’s claim.

The nature of the action and the facts, so far as material, are stated in the opinion. The release given by the plaintiff to the city of New York was not only general in form but general in fact, and, therefore, released every claim which the plaintiff then had against the city of New York.

The nature of the action and the facts, so far as material, are stated in the opinion. The transaction between the Central Bank and the Cooper Bank was not such a contract of guaranty as is inhibited against national banks, but was a written promise made to a third party in the prosecution and collection of an existing valid debt. (C. Nat. Bank v. Pirie, 82 Fed. Rep. 799; Bowen v. N. Nat. Bank, 94 Fed. Rep. 925; A. Nat. Bank v. Nat. W. P. Co., 77 Fed.

Banker, deceased. The facts, so far as material, are stated in the.opinion. The agreement of June 15, 1885, between Mrs. Kent and Mrs. Banker cannot be construed as providing for a deduction from any future legacy or devise to Mrs. Kent from Mrs. Banker.

judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 22, 1907, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial. ■ • The nature of the action and the facts, so far as material, are stated in the opinion. The defendant’s motion for a nonsuit made when -plaintiff rested, and renewed at the close of the case, was well founded and should have been granted.

The nature of the action and the facts, so far as material, are stated in the opinion. Brady, even if a foreman, was performing a detail of the work and exercising the judgment of a fellow-servant when he performed the act of turning on the power at the time of the accident, and the court erred in refusing to so charge. (Quinlan v. L. S. Co., 107 App. Div. 176; Bannon v. N. Y. C. & H. R. R. R. Co., 101 App. Div. 547; Guilmartin v. Solvay Process Co., 115 App.

On June 15th, 1906, the plaintiff, a boy then between 11 and 12 years of age, was playing upon a pontoon or float moored to the shore in front of premises leased by the defendant. While thus engaged the plaintiff was seriously injured and this action was subsequently brought to recover the damages which are said to have been occasioned by the culpable negligence of the defendant.

The facts, so far as material, are stated in the opinion. The attempted marriages both in New Jersey and iu Michigan by the said Benjamin F. Olmsted with Sara Louise Welchman were, and each of them are, void in the state of New York, and as to any property therein, and the issue of these attempted marriages, the defendants John H. and William II. Olmsted, were not and are not lawful issue of Benjamin F. Olmsted in the state of New York as to any property therein.

The nature of the action and the facts, so far as material, are stated in the opinion. The overflow provided for by the act of 1830 gave the state only a permanent easement. (105 N. Y. 246; 68 N. Y. 591.) The state, by the legislature, can declare what interest is necessary for the public use, whether a fee or an casement. In the absence of such a declaration, only such interest is taken as * is necessary for the particular use. (Cooley on Const.

The nature of the action and the facts, so far as material, are stated in the opinion. The explosion of fireworks described by the evidence constituted a nuisance as matter of law, and it was error for the trial court to refuse so to charge, and to leave the question to the jury.

Tlie facts, so far as material, are stated in the opinion. A foreign administrator or executor lias no right to so manipulate and distribute tlie assets of an estate that the effect is to defeat or impair the provisions of our Tax Law relating to transfers. (Matter of Daly, 100 App. Div. 373; 182 N. Y. 542; Mattar of McEwan, 51 Misc. Rep. 455; Magoun v. I. T. & S. Bank, 170 U. S. 283; Matter of Westurn, 152 N. Y. 93; Matter of Borup, 28 Misc.

The facts, so far as material, are stated in the opinion. As there was no proper allegation in the petition or proof given that the relator was entitled to the protection afforded by section 21 of the Civil Service Act, there was nothing to review, and the writ should have been dismissed or the determination of the borough president confirmed. (People ex rel. Schau v. McWilliams, 185 N. Y. 92 ; People ex rel. Lawson v. Coler, 40 App.

<p>Motion for re-argument. (See 189 N. Y. 355.)</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered October 1, 1907, which reversed a judgment in favor of plaintiff entered upon a verdict directed by the court in an action to recover for the alleged wrongful sale by defendants, a firm of stockbrokers, of a contract for a number of bales of cotton bought by them for plaintiff’s testator.</p>