Volume 29 — Abbott's New Cases

Motion to continue an injunction. The action was brought by Edward Rafter against Sarah A. Tagliabue and others, the owners of land upon which blasting was being done, and the contractor doing the work, for an injunction and damages.

Trial without a jury. The action was brought by James Talcott against Morris Levy and others to set aside a transfer of real estate as fraudulent against creditors. The facts are fully stated in the opinion.

Motion by defendant to resettle an order overruling his demurrer to complaint. The action was brought by Beverhout Thompson against Annie Stanley, as administratrix of David A. Stanley, deceased, and the Harris & Deu Faucet Plug and Bung Company for an accounting concerning the property and assets of the company alleged to have been misappropriated by David A. Stanley, who had been president of the company and had undertaken to wind up its affairs.

Appeal by defendants from a judgment for plaintiff entered upon a decision of the special term of the Superior Court. The action was brought by Catherine S. Hunter against The Manhattan Railway Company and The New York Elevated Railroad Company to recover damages caused by the maintenance and operation of the defendants’ road in front- of plaintiff’s premises and for an injunction against the. continuance of the road. The facts are fully stated in the opinion.

<p>1. Constitutional law ; regulation of commerce.] The provision of the U. S. Constitution, art 1, § 8, subd. x,—conferring upon Congress the exclusive power to regulate commerce between the States, etc.—prohibits the taxation in this State of the business and franchise of a railroad corporation, organized under the laws of another State, which only transacts business in this State incidental to its interstate carrying trade.</p> <p>2. Taxes; corporations.] A railroad corporation created under the laws of another state, and doing business between several States, did,for the purpose of facilitating its interstate business, maintain a terminal station, establish offices, keep employees and make bank deposits, in this State.—Held, that as the only business transacted by such railroad in this State related to interstate commerce, it was not doing such business here as would render it liable to taxation under L. 1880, ch. 542, § 3— which provides that corporations organized under the laws of another State or County, and doing business in this State, shall be subject to a tax upon their franchises and business.*</p>

Motion by defendant for leave to withdraw his notice of appearance and to set aside the service of a summons in an action for a penalty upon the ground that the summons was served without complaint and without an indorsement of a general reference to the statute under which the action was brought, as required by Code Civ. Pro. § 1897.

<p>Injunction regulating construction of sewer.] The court will enjoin the construction of a sewer in a street at an unnecessary depth from the surface, which would result in drawing a pond on the adjoining premises of the plaintiff, where it is shown that a sewer can be constructed which will subserve every purpose at such a depth as not to draw the water from the pond.</p>

<p>Motion to confirm a referee’s report.</p>

<p>1. Mandamus.] A judge at chambers in the city of New York, or elsewhere within the State, has no-jurisdiction to issue a writ of mandamus.</p> <p>2. Judges.] The right of a judge out of court to grant a writ of mandamus is excluded by Code Civ. Pro. § 2068—providing “ except where special provision is made therefor in this article a writ of mandamus can be granted only at a Special Term of the court,”—since there is no other provision in the article, an application for such a writ, even if regarded as a motion, is not, therefore, within the operation of Code Civ. Pro., § 770, providing, that “ in the First Judicial District, a motion which elsewhere must be made in court may be made to a judge out of court, except for a new trial on the merits.”</p> <p>3. Courts ; holidays.] Under the Laws of 1842, chapter 130, title I. section 5, as amended by the laws of 1847, chapter 240, section 2, no court can be opened within the State on any general election day to transact business, except for the purpose of receiving a verdict or discharging a jury, and for the exercise by a single magistrate of certain jurisdiction in criminal cases; a voter, therefore, who is refused the right to vote can not resort on election day to any court for relief by mandamus or otherwise.*</p>

<p>1. Judgments and decrees; relief limited by pleading.] Where a. complaint demanded relief, that the defendants be restrained from using a party wall, except after paying the plaintiff one half its value, and for such other and further relief as should, seem just to the court,—Held, that, although the plaintiff was. not entitled to an injunction, the court having obtained jurisdiction, and it appearing that the agreement to pay one-half the value of the wall constituted a chargé on defendant's premises, the court might retain the action and decree a sale of defendant’s premises to satisfy the charge thereon.</p> <p>2. Evidence ; mutuality of contract.] In an equitable action between owners of adjacent lots to enforce a lien upon defendant’s lot. for one-half the value of the party wall, imposed by an agreement between the former owners of the lots, the instrument purporting to be the party wall agreement, offered in evidence, upon the trial, although it stated that it was made by both parties, was only executed by the owner of the lot sought to-be charged, but it was also shown that the wall called for by the-agreement had been erected by plaintiff’s predecessor, and mesne conveyances under which defendant claimed were-expressed to be subject to the agreement.—Held, that the making, of the agreement by both parties thereto was sufficiently proved.*</p> <p>3. Party wall; obligation to pay for, when a lienl\ An agreement. between owners of adjacent lots provided that either party, his-heirs or assigns, might erect a certain described party wall, and that the other party, his heirs or assigns, should have the right to> use the wall by paying half its value at the time of use; and by a final clause it was provided, that the covenants contained in the agreement should be construed “ as covenants running" with the land.”—Held, that in accordance with the expressed intent of the parties, the covenants should be construed as-running with and charging the land ; and that the purchaser of the lot from one who had built the wall pursuant to the agreement obtained a lein upon the adjacent lot for half the value of the wall, upon its use by one who had purchased such lot, which could be enforced against the lot, notwithstanding" its conveyance to another. •</p> <p>4. The same.\ In such a case, the party wall agreement having been. recorded, it makes no difference that the deed of the person who purchased the lot which was subject to the lien made no reference to such agreement.</p> <p>5. Cases distinguished^ Cole v. Hughes, 54 N. Y. 444, and Scott. v. McMillan, 76 N. Y. 141, distinguished.</p>

<p>Appeal by relator from an order of the Special Term of the Supreme Court, held at Albany, denying his application for peremptory mandamus.</p> <p>Application for a mandamus made by the EickemeyerField Company, Eickemeyer Dynamo Machine Company, and the Yonkers Machine Company against Frank Rice, secretary of State, to compel the latter to file in his-office, upon the payment of his lawful fees, an agreement made by relators to consolidate into one company under the name of the Eickemeyer-Field Manufacturing Company.</p> <p>It appeared by the affidavits upon the application for a mandamus that none of the consolidating corporations-had increased their capital stock, and that the capital of the proposed new company did not exceed the aggregate capital of the three consolidating companies.</p> <p>The secretary of State refused to file the papers on the ground that, by the L. 1892, c. 668, the consolidated, company, the Eickemeyer-Field Manufacturing Co., was. required to pay a tax one-eighth of one per cent, on its-capital stock as a condition precedent to the filing of the.papers.</p> <p>The Special Term denied the application for mandamus-without opinion.</p> <p>The further facts are fully stated in the opinion.</p>

<p>1. Reference ; the hearing.] Upon a motion for alimony and counsel fee, pend ing an action by a wife against her husband for separation, an order of reference was made directing the referee to determine whether any, and, if any, what alimony and counsel fee ought to be awarded plaintiff, and to report the facts found and his opinion thereon.—Held, that under such order, the referee had only power to take evidence and to report it to the court with his opinion thereon.*</p> <p>2. The same.] Upon such a reference, where the plaintiff has given evidence in support of her claim for alimony, the defendant is not entitled to a report in his favor upon taking plaintiff’s default for non-appearance at an adjourned hearing; but the referee must report the evidence taken and his opinion thereon.</p> <p>3. The same ; exceptions to reporti] Such a reference being merely for the purpose of aiding the conscience of the court in determining a motion pending before it, the report of the referee does not stand confirmed under Rule 30 of the General Rules, of Practice, if exceptions are not filed within eight days after-service of notice of the filing of the report.</p>

<p>Trial; findingsi\ A referee upon the trial of an action dismissed the complaint at the close of plaintiff’s evidence for failure of proof; and in his report, without finding as to the facts) made only conclusions of law to the effect that there was no evidence to support the allegations of the complaint, and directed judgment for defendant not on the merits.—Held, upon denying plaintiff’s motion to send back the report to have findings of fact included, that the referee was not required to find as to the facts, because none were proven.*</p>

<p>1, Damages ; new trial because nominal.} In an action under the statute* for negligence or wrongful act causing death of an infant of tender years—in this case two years and nine months,—there is no such presumption of pecuniary loss to the next of kin, as to justify setting aside a verdict for nominal damages as inadequate.</p> <p>2. Costs on recovery of nominal damages.] In an action under that statute, the plaintiff, on recovering nominal damages, is entitled to full costs.</p>

<p>Application for leave to sue as a poor person.</p> <p>The action in which the application was presented was ¡brought by Anna Be'yer, an infant; by Elizabeth Beyer, her guardian ad litem, against her employer, Thomas B. Clark for injuries received by contact with a revolving shaft in defendant’s factory.</p> <p>The application was made after the commencement of the action, and was supported by a verified petition in accordance with Code Civ. Pro. § 459, and also a certificate of a counselor at law to the effect that plaintiff had a good cause of action. The defendant opposed-the application by affidavits of four fellow servants of plaintiff, all of whom swore that the plaintiff, notwithstanding their remonstrance, voluntarily put herself upon the shaft.</p>

Appeal by defendant from a judgment entered upon the report of a referee in favor of plaintiff. The action was brought by John H. Platt against John P. Kohler, to recover commissions as real estate broker for effecting a sale or exchange of defendant’s property. The further facts are fully stated in the opinion.

Action by Phillip Abraham, a taxpayer, against Theodore W. Myers, as Comptroller of New York City, the Mayor, etc., of said city, and the Houston, West Street and Pavonia Ferry Railroad Company, to enjoin a sale of a street railway franchise. The Houston, West Street, etc. R. R. Co. presented . an application to the common council of New York City to extend its line along Lexington avenue in said city.

The action was brought by the Dueber Watch Case Manufacturing Company against the American Waltham Watch Company and others, to recover damages caused to plaintiffs business by an agreement between defendants not to sell any goods manufactured by them to anyone who should buy or sell plaintiffs goods, and the sending of notices of such agreement to plaintiff’s customers.

<p>I. Appeal; from default.] A judgment by default or affirming a judgment .by default, is not appealable.*</p> <p>2. The same ; from refusal to open default.] The denial of a motion to open a default which was taken on withdrawing from trial because of the judge’s refusal to postpone because of the absence of a witness, is not appealable to the common pleas from the city court, because it does not affect a substantial right.*</p> <p>3. The same ; city court to common pleas.] The appellate jurisdiction of the common pleas over the city court, is exactly commensurate with that of the court of appeals over the supreme court.</p> <p>4. Trial; postponement.] Absence of a desired witness is not ground for claiming a postponement if there has been no subpoena or other effort to secure his attendance.†</p>

The action was brought by William H. Scott, as executor of William H. Scott, deceased, against the Metropolitan Elevated Railway Co. and the Manhattan Railway Co., to recover damages for the maintainance and operation of an elevated railway in a street in front of the premises of plaintiff’s testator. The further facts are fully stated in the opinion.

Appeal by legatees from án order of the General Term of the Supreme Court, first department, affirming a decree of the'New York Surrogate’s Court, confirming an assessment of the collateral inheritance tax upon the appellants, legacies, assessed in proceedings instituted by the district-attorney.

Motion by defendant for an order directing plaintiff to serve a reply to answer. The action was brought by Henry W. F. Stein way, in his own behalf, as a stockholder of the corporation of Steinway & Sons, and in behalf of all other stockholders, against William Steinway and Steinway & Sons.

The mortgage was made by Isidojr Lewkowitz, the relator, to Joseph B. Hoyt, of Stamford, Fairfield County, Connecticut. Hoyt died in December, 1888, and on February 2nd, 1889, Thomas G. Ritch and others received letters testamentary from the probate court of Fairfield County, and qualified as such.