Volume 29 — Bedell

The nature of the action and the facts, so far as material, are stated in the opinion. The trial court was right in refusing to grant specific performance, inasmuch as the agreement set forth in the complaint was incomplete. (Mayer v. McCreery, 119 N. Y. 434; Cooley v. Lobdell, 153 N. Y. 566; Wright v. Weeks, 25 N. Y. 153; Ridgway v. McCreery, 119 N. Y; 434; Sourwine v. Truscott, 17 Hun, 432; Appleby v. Johnson, L. R. [9 C. P.] 158; Bluemner v. Garvin, 120 App.

The plaintiff is in the possession of a promissory note of ten thousand dollars dated February 1st, 1900, payable to her order one year after date, which she alleges was executed by the defendants’ testator and delivered to her a few days before his death. The testator’s will was duly proven and letters testamentary thereon were duly issued to the defendants.

The facts, so far as material, are stated in the opinion. The duty of paying the assessment bonds or certificates of indebtedness issued by the commissioners of sewerage now remaining outstanding and unpaid devolves upon the treasurer of Monroe county as custodian of the west side sewer fund.

The nature of the action and the facts, so far as material, are stated in the opinion. The defendant in this case is not liable under the doctrine which holds the owner or beeper of a wild animal to be, under certain circumstances, an insurer against injury by it. (Wheeler v. Brant, 23 Barb. 326; Loomis v. Terry, 17 Wend. 497; Brock v. Copeland, 1 Esp. 204; Hott v. Wilks, 3 B. & A. 304; Werner v. Winterbottom, 17 N. Y. S. R. 751; Woodbridge v. Marks, 17 App.

Cross-appeals from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 15, 1907, which modified and affirmed as modified a judgment of Special Term construing the will of Jabez A. Bostwick and certain trust deeds executed by him. The facts, so far as material, are stated in the opinion.. The trust deeds and the will cannot be read together. They are distinct and separate instruments.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February 13, 1907, which reversed an order of the Appellate Term reversing a judgment in favor of plaintiff entered upon a decision of the City Court of JSTew York, a jury having been waived. The nature of the action and the facts, so far as material, are stated in the opinion.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 15, 1907, which affirmed an order of Special Term dismissing a writ of certiorari and confirming an assessment for the purposes of taxation.</p> <p>The writ of certiorari was procured to review the determination of the respondents in assessing for the purpose of taxation certain shares of stock owned by the relator in one state bank and in ten national banks in the state of Mew York. The facts as both parties unite in stating them are as follows: “The relator is a Connecticut savings bank and owned on June 1st, 1901, the bank shares enumerated in the petition. It had on that day assets and liabilities' of such character and amount that it would have been exempt from any taxation under the laws of Mew York had it been permitted to deduct its debts in arriving at its taxable surplus, as in the case of an individual taxpayer other than, a bank stockholder. The assessment of relator’s bank shares was made pursuant to the amendments of sections 23 and 21 of the Tax Law effected by chapter 550 of the Laws of 1901. The procedure was as follows: The chief fiscal officers of these banks reported to the defendants by July 1st, 1901, the condition of their banks, as required by section 23 of the Tax Law. In June, 1901, the relator gave notice to the defendants that it claimed to be exempt from assessment on account of its deductible debts and tendered proofs of the fact, but was refused a hearing. At some time prior to October 30th, 1901, the defendants assessed these stocks against the relator at the amounts named in the petition and served written notice thereof upon the respective banks on October 31st, 1901. On JSTovember 13th, 1901, the writ herein was issued and served. The general tax rate for 1901 in the Borough of Manhattan where the banks were located, was 2.31133 per cent.” The tax on bank shares is fixed by section 24 of the Tax Law at one per centum.</p> <p>The assessment was confirmed by the court at Special Term and the Appellate Division affirmed the order, two of the justices, dissenting. The relator appealed to this court.</p> <p>The legislature of the state of Mew York has no power to tax the shares o£ the relator in national banks at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of this state. (IT. S. B-. S. § 5219; Hepburn v. School Directors, 90 U. S. 480; Adams v. Nashville, 95 U. S. 19; Evansville Bank v. Britton, 105 U. S. 322; Boyer v. Boyer, 113 U. S. 689; Mercantile Bank v. New York, 121 U. S. 138; Jenkins v. Neff, 163 N. Y. 320; F. Nat. Bank v. Ayers, 160 U. S. 660.) The laws of this state permit the individual holders of moneyed capital other than bank stocks to deduct all -bona fide debts from their taxable assets in determining their assessment for taxation thereon. (People ex rel. C. S. Co. v. Dederick, 161 M. Y. 195.) A statute that allows a deduction of the indebtedness of the individual holders of other moneyed capital and denies that privilege to the owner of national bank shares is in violation of the Federal act. (People v. Weaver, 100 U. S. 539; Supervisors v. Stanley, 105 U. S. 305; Hills v. Exchange Bank, 105 U. S. 319; Evansville Bank v. Britton, 105 U. S. 322; People ex rel. H. Ins. Co. v. Coleman, 44 Hun, 47.) Under the act of Congress the assessment imposed upon relator’s national bank shares must be set aside as illegal. (Hills v. Exchange Bank, 105 U. S. 321.) An act that provides for the assessment and taxation of property without notice to the owner and an opportunity to be heard is in violation of the Constitution of this state. (Const, of N. Y. art. 1, § 6; Overing v. Foote, 65 N. Y. 263; Stuart v. Palmer, 74 N. Y. 183; Matter of McPherson, 104 N. Y. 306; Remsen v. Wheeler, 105 N. Y. 573; McLaughlin v. Miller, 124 N. Y. 510; Silkman v. Water Commissioners, 152 N. Y. 327; Jones v. Town of Tonawanda, 158 N. Y. 438; Nehasane Park Assn. v. Lloyd, 167 N. Y. 431; Matter of Douglass v. Board of Supervisors, 172 N. Y. 309; Hagner v. Hall, 10 App. Div. 581; 159 N. Y. 552; People ex rel. Schofield v. Schoonover, 47 App. Div. 278.) The Tax Law, as amended in 1901, gave no opportunity to be heard to the owners of bank stocks in the city of New York. (Dale v. City of New York, 71 App. Div. 229.)</p> <p>The mere omission to provide by statute for a hearing of the individual shareholders of banks before determining the value of the shares for purposes of taxation did not render the assessments void. (People ex rel. Keppler v. Schwarzmann, 22 App. Div. 120; 155 N. Y. 661; Davidson v. New Orleans, 96 U. S. 97; Hagar v. Reclamation Dist., 111 U. S. 701; Williams v. Bd. of Suprs., 21 Fed. Rep. 99; Turpin v. Lemon, 187 U. S. 51; Glidden v. Harrington, 189 U. S. 255; Corry v. Baltimore, 196 U. S. 466; Covington v. F. Nat. Bank, 198 U. S. 100; S. T. S. D. Co. v. Lexington, 203 U. S. 323; Kentucky R. R. Tax Cases, 115 U. S. 321.) The provision of the. Tax Law that “the owners of the stock of banks and banking associations shall be entitled to no deduction from the taxable value of their shares because of the personal indebtedness of such owners ” (§ 24), is not necessarily obnoxions to the provision of section 5219 of the Revised Statutes of the United States that the taxation of national banlc shares “shall not be at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such State.” (People v. Weaver, 100 U. S. 539; Nat. Bank v. Comm., 9 Wall. 353; Boyer v. Boyer, 113 U. S. 689; M. Bank v. New Work, 121 U. S. 138; F. Nat. Bank v. Ayres, 160 U. S. 660; F. Nat. Bank v. Chapman, 173 U. S. 205; Comel. Bank v. Chambers, 182 U. S. 556; Lander v. Mercantile Bank, 186 U. S. 458.)</p>

<p>1. Common Carrier—Injury to Property in Transitu—Commonlaw Liability op Carrier —Bill op Lading — Stipulations Lessening Liability op Common Carrier — Rot Conditions Precedent to Right op Recovery for Loss or Damage. While, under the common law, common carriers are liable for an injury resulting to property through the negligence of their employees while in the course of transit, they may he permitted to relieve themselves of the strict common-law liability by inserting reasonable provisions in the bill of lading limiting their liability, but such provisions, being in derogation of the common law, must be strictly construed and are not to be considered conditions precedent to a right to recover unless it clearly appears that such was the intent or it is so specifically stated.</p> <p>2. Same—Provision in Bill of Lading Requiring Rotice of Loss or Damage Within Fixed Time After Delivery of Property by Carrier — Suoii Provision Is a Limitation upon Right to Recover and Must Be Pleaded as a Defense. A provision, in a bill of lading, that the carrier should not be liable for loss or damage to the property therein mentioned unless a claim therefor be made in writing within thirty days after the delivery of the property to the consignee, or after due time for the delivery thereof, is not a condition precedent to the consignee’s right to recover for damage to property while in transit but is a limitation of the claimant’s common-law right of recovery and is, therefore, a matter of defense which must be pleaded by the common carrier in an action for loss or damage to property while in transit.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The doctrine of res ipsa loguitur does not apply to the facts or circumstances of this case. (Duhme v. H. A. P. Co., 184 N. Y. 404; Del Senjore v. Hallinan, 153 N. Y. 278; Griffin v. Manice, 74 App.

Gecyge Bell died in 1879, leaving a large estate, in realty and in personalty, which he disposed of by a will.

Court in the third judicial department, entered July 18,1907, which modified and affirmed as modified a judgment of Special Term construing the will of Robert M. Shoemaker, deceased, and settling the accounts of the trustee of a portion of his estate. The facts, so far as material, are stated in the opinion. It is error for the Appellate Division to make findings of fact. That power rests exclusively with the trial tribunal.

<p>1. Negligence — Action eor Death Caused by Fall oe Electric Light Wire — The Facts Examined and Held That the Case Should Have Been Submitted to the Jury. The evidence, in an action brought to recover for the death of a decedent caused by a shock of electricity from an electric light wire which broke and fell upon him, examined and held, that the evidence bearing upon the negligent erection and maintenance of the electric light wire and the freedom of the decedent from contributory negligence was such that tb e case should have been submitted to the jury upon these questions.</p> <p>2. Evidence—When Credibility of a Witness Presents Question of Fact for the Jury. While the testimony of a single witness, if believed, is sufficient to establish any fact in a civil action, still it need not be believed if the witness is interested, or his statements, even if uncontradicted, are inconsistent with his own conduct, or so improbable as to require explanation. If a fair argument can be made against the probability of his story, his credibility presents a question for the jury. Even if they do not think that he intended to speak falsely, still they may reject his testimony if they are satisfied that he was mistaken owing to interest, bias, a defective memory or any other reason springing from the evidence.</p> <p>3. Evidence — Credibility of Defendant Sworn as Witness — Facts Examined and Held That the Evidence Presents a Question of Fact as to the Credibility of the Witness. Where, upon the trial of an action brought to recover for the deatli of plaintiffs’ intestate, caused by the fall of an electric light wire, the plaintiffs established a prima facie case, which cast the burden of establishing some defense upon the defendant, who tried to prove that he did not own the fatal wire at the time of the accident, but that the electric light system to which it belonged had been transferred before that time to a corporation of which the defendant, his wife and another, were the incorporators, trustees and the only stockholders, and that this transfer was made by an assignment in writing, which had been destroyed by fire, although a second assignment made two months after the accident, and usually kept in the same place, was not destroyed, and it appears from the record that substantially all the evidence to establish the essential fact was given by the defendant himself, an interested witness; that his memory was exceedingly imperfect as to important details; and, that his testimony upon the vital point" was not onty not corroborated by other witnesses, or the facts and circumstances of the case, but, on the contrary the probability of his story was lessened thereby, it must be held that the evidence presents a question of fact as to the credibility of the defendant, and that, therefore, the order of the Appellate Division affirming the judgment of nonsuit granted by the trial court must be reversed.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The statement in the order of reversal of the Appellate Division that it was reversed on the facts and the law is not conclusive upon this court, and this court will look into the record to ascertain the truth in this regard.

The nature of the action and the facts, so far as material, are stated in the opinion% Mrs. Greene never came under any obligation to Mr. Brockway by virtue of the execution and delivery of the bond, because he' failed to perform conditions precedent to the creation of any obligation on her part to pay the debt of $2,851.18. (Lock v. Wright, 1 Strange, 569.) There was no consideration for the bond, and it is, therefore, void. (Code Civ.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered November 26, 1907, which affirmed an order of Special Term granting a motion for leave to amend the summons and complaint by bringing in an additional party defendant. The facts, so far as material, and the questions certified are stated in the opinion. The court had no power to grant the motion to bring in the Surf Amusement Company.

Appeal, by permission, from an order of the Appellate Division of the Sópeme Court in the second judicial department, entered October 23, 190 Y, which affirmed an order of Special Term denying a motion to continue a temporary in j unction pendente lite and vacating and setting aside such injunction. The following questions were certified : “1.

<p>Courts — City Court of City of New York Has No Jurisdiction of Actions Against City. The Marine Court of the city of New York w-as never a constitutional court, and the limited jurisdiction previously possessed thereby, as to actions against the city of New York, was taken away by chapter 379 of the Laws of 1860, conferring exclusive jurisdiction of such actions upon the Supreme Court, the Court of Common Pleas and the Superior Court of the city of New York, and has never been re-conferred upon it or upon its successor, the present City Court of the city of New York. The fact that the provision in the charter of the city of New York (L. 1897, ch. 378) continuing exclusive jurisdiction of such actions solely in the Supreme Court, with which the Common Pleas and Superior Courts had been consolidated, was omitted from the amended charter (L. 1901, ch. 466), which conferred a limited jurisdiction of such actions upon the Municipal Court of the city of New York, does not warrant a contention that, because of such omission, the jurisdiction of the City Court was broadened and extended by implication to actions against the city and the provisions of the act of 1860 repealed, since such omission was made necessary by the grant of jurisdiction to the Municipal Court, and the City Court gained nothing thereby. Statutes relating to the jurisdiction of the Marine and City Courts of the city of New York collated and discussed.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The learned trial court erred in allowing an amendment to the complaint radically changing the nature of the action. (Hotaling v. Marsh, 132 N. Y. 29.) The judgment appealed from is erroneous in that it gives the plaintiff a mechanic’s lien, not for labor and materials, but for money loaned with which to pay for labor and materials.

The nature of the action and the facts, so far as material, are stated in the opinion. The pole was not a nuisance or a wrongful obstruction of the driveway. (People v. M. T. Co., 31 Hun, 596; City of Rochester v. B. T. Co., 52 App. Div. 6; Ward v. A. & P. T. Co., 71 N. Y. 81; Sheffield v. C. U. T. Co., 36 Fed. Rep. 164; Comm. v. City of Boston, 97 Mass. 555; Hunt v. Mayor, etc., 141 N. Y. 134.) The pole was not negligently placed or maintained.

Andrews) deceased. The facts, so far as material,, are stated in the opinion. The bequest to the corporation was to take effect upon the death of Mrs. Andrews. When Mrs. Andrews died there was no corporation in existence. The gift, therefore, fails.

Campbell, deceased. The facts, so far as material, are stated in the opinion. Sarah F. Roberts having died during the lifetime of the testatrix, the legacy given to her lapsed.

The nature of the action and the facts, so far as .material, are stated in the opinion. The court erred in refusing to charge as requested by the defendant’s counsel concerning the effect of the alleged widening of the hook. (Leeds v. N. Y. T. Co., 178 N. Y. 121; Galasso v. Nat. S. S. Co., 27 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The defendants were entitled to show that at the time of the commencement of the action Mrs. Mulligan was the holder of the Fisher mortgage and in possession thereunder, and any evidence tending to establish such facts was erroneously excluded.

The nature of the action and the facts, so far as material, are stated in the opinion. The act of Iinapp in turning on the electricity was an act performed in the prosecution of defendant’s work, and was an act of superintendence. (Roche v. Lowell Bleachery, 181 Mass. 480; McPhee v. N. E. S. Co., 188 Mass. 141; McBride v. N. Y. T. Co., 101 App. Div. 452; 113 App.

The nature of the action and the facts, so far as material, are stated in the opinion. , The findings are insufficient to support the judgment. (Hindley v. M. Ry. Co., 185 N. Y. 335; Lewis v. N. Y. & H. R. R. Co., 162 N. Y. 202; Jamieson v. K. C. E. Ry. Co., 147 N. Y. 322; Witmark v. N. Y. E. R. R. Co., 149 N. Y. 393.) The judgment is not supported either in part or in its entirety by any findings of fact as to increased user.

<p>1. Appeal — Bill of Particulars—When within Discretion of Supreme Court—When Order Granting Bill and Precluding Plaintiff from Giving Evidence of Particulars Not Furnished, Reviewable in Court of Appeals. While the granting or denial of a motion for a bill of particulars ordinarily rests within the sound discretion of the Supreme Court, which discretion is not reviewable by the Court of Appeals, yet there is a limit to such discretion, and where an order requires a plaintiff to furnish the particulars of evidence, which it is not within his power to furnish, or precludes him from giving lawful and proper evidence upon the trial because he has failed to specify in advance what such evidence will disclose, a question of law is presented which is reviewable in the Court of Appeals.</p> <p>3. Quo Warranto — When Ballots Cast at Election Lawful and Proper Evidence — Preliminary Evidence Required Prior to Opening of Ballot Boxes. In an action of quo warranto, the ballots voted are lawful and proper evidence upon the question as to which candidate received a majority of the votes lawfully cast at the election, and where such ballots are contained in the ballot boxes which have been kept in the custody of the hoard of elections as required by the Election Law (L. 1896, cli. 909, § 111), neither party can properly be excluded from availing himself of such evidence upon the trial; provided, however, that preliminary evidence is submitted, showing that the ballots have been preserved in the boxes inviolate, and this evidence must he of such a character as to satisfy the trial court, in the first instance, that they have been so preserved before admitting them to be opened and the contents received in evidence, and, finally, to satisfy the jury of such preservation; hut beyond that no further conditions are required, it being unnecessary to produce preliminary evidence tending to show misconduct, error, omission or fraud in the counting or canvassing of the votes.</p> <p>8. Quo Warranto — Bill of Particulars — Erroneous Order Precluding Plaintiff from Giving Evidence of Illegal Acts Not Specified in Bill of Particulars. In an action of quo warranto brought by the attorney-general to determine the title to the office of the mayor of the city of New York, the defendant obtained an order directing the attorney-general to specify the particulars of the errors, miscounts and illegal acts alleged in the complaint,"upon which the attorney-general served a bill of particulars stating some of the particulars required and alleging that further particulars could only be had from an inspection of the ballots contained in the ballot boxes used at the election; the defendant then moved the court for an order directing the attorney-general to furnish a further hill of particulars of designated allegations of the complaint, complying with the prior order for a hill of particulars, and in default of such information that he he precluded from giving any evidence of any misconduct or miscount of votes in any election district; this motion was opposed by the attorney-general, who made an affidavit in substance stating that the ballot boxes were in the custody of the hoard of elections of the city of New York, kept under lock and key, and neither be nor any other person had been permitted to open the same or make an examination of their contents, and that consequently, he could not furnish the information called for. The Special Term denied the motion, hut on review by the Appellate Division the order of the Special Term was reversed and the motion granted to the extent of precluding' the plaintiff from giving any evidence of the allegations contained in the complaint, except with regard to the election districts specified in the schedule of the hill of particulars served by the attorney-general. Held, that the order precluding the attorney-general from giving evidence of the miscount of votes in election districts in which he was not able to specify the particulars required, without an opportunity to inspect the ballots contained in the boxes, presents a question of law which the > Court of Appeals has the power to review, which is not a review in advance of rulings that may be made by the trial court in the admission and rejection <$f evidence, but is the review of an order of the Appellate Division by which the trial court is required to exclude and prohibit the attorney-general from giving in evidence the contents of the ballot boxes referred to in the order; and held, that such order, being based upon the erroneous proposition that, before the admission of the contents of the boxes in evidence, proof aliunde must be given of misconduct on the part of the election officers, is, therefore, without, legal foundation and must be reversed.</p>

The facts, so far as material, are stated in the opinion. The interpretation of section 234 of the Tax Law adopted by the Special Term should not be sustained. (People ex rel. Balcom v. Mosher, 163 N. Y. 32.) The interpretation contended for by the comptroller would lead to an unreasonable result. (Topham v. I. S. R. Co., 96 App. Div. 323; McCuskie v. Hendrickson, 128 N. Y. 555.) The word “may” as used in the statute now under consideration should be construed as mandatory.

The nature of the action and the facts, so far as material, are stated in the opinion. A conveyance of land on a street not in actual existence, but only marked out by the public authorities as an avenue which in the future might be made into a street, does not by implication convey either fee or easement in the street land. (Matter of Brook Ave., 40 App. Div. 519; 161 N. Y. 622.) The owners of lots 1 and • 3, so far from having a fee, have not even an easement.

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

This action was brought to recover commissions alleged to have been earned by the plaintiff as a broker in procuring a tenant ready and willing to take a lease from the defendants of certain premises in which they had a leasehold interest with the right to sublet the same.

The nature of the action and the facts, so far as material, are stated in the opinion. Plaintiff waived the provision of the statute under which she socles to recover. (Woodman v. N. P. Co., 94 N. Y. Supp. 371; Warners v. Quechel, 19 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The measure of damages adopted by the court was erroneous. (Parmenter v. Fitzpatrick, 135 N. Y. 190-196; Fleischmann v. Samuel, 18 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The defendant’s exceptions to the reception of evidence, and the refusal of the trial court-to strike out evidence, must avail to reverse the judgment.

This action was brought against the widow, heirs and administratrix of James M. Ordway, deceased, to compel the specific performance of a contract, alleged to have been made between the father of the plaintiff and the said decedent for her benefit.- The trial court found the following facts in substance: On the 25th of November, 1879, the plaintiff was an infant but fifteen months old.

The nature of the aotion and the facts, so far as material, are stated in the opinion. The plaintiff, as the holder of the order given by the contractor Tarlo, was simply the equitable assignee pro tanto of a specific sum expected to become due under a contract and as such stood in the shoes of the contractor. It was incumbent upon him to show that the moneys assigned, thereafter actually became due to his assignor.

The nature of the controversy and the .facts, so far as material, are stated in the opinion. The court has very broad and comprehensive powers to correct and modify the award of an arbitrator. (Code Civ. Pro. § 2375; Matter of Wilkins, 169 N. Y. 494; Fudickar v. G. M. L. Ins.

The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in instructing the jury that the plaintiff had three months from the time he was mentally able to act in which to file the required petition or claim with said defendant, and that if they found that he had so filed they should render a verdict for the plaintiff. (McMullen v. City of Middletown, 187 N. Y. 37; Kennedy v. Mayor, etc., 34 App.

<p>1. Debtor and Creditor — Judgment—Action on Judgment to Charge Joint Debtor Not Served with Process. In order to charge the individual property of one joint debtor with a claim for which a judgment had been obtained upon service of process on the other joint debtor, but without such service upon him, the remedy afforded to the creditor is no longer a special proceeding at the foot of the judgment in the original action, as formerly provided by the Code of Procedure and amendments thereto, but is now a new action, under section 1937 of the Code of Civil Procedure, in which the Statute of Limitations may he pleaded as a defense.</p> <p>2. Same—Nature and Purpose op Action—When Statute op Limitations Begins to Run against Such Action. The object of such an action is not to enforce the plaintiff’s rights under the original judgment, but solely to establish the defendant’s liability on the original joint obligation. The action rests upon a double basis:" (1) The existence of the claim sought to be enforced in the first action; and (2) the recovery of a judgment thereon. Both of these elements are essential to the maintenance of this statutory action, and, therefore, the plaintiff’s cause of action does not accrue until the recovery of the original judgment. It does then accrue, however, eo instanti, and from that moment it is within the plaintiff’s power to institute a suit to charge the property of the unserved joint debtor, so that the Statute of Limitations begins to run against the plaintiff from the date of the original judgment.</p> <p>3. Same — Statute op Limitations — When Plea op Ten Years’ Statute Fatal to Action. Where such an action was commenced eighteen years after the original judgment was obtained, the only provision of the Statute of Limitations (Code Civ. Pro. cli. 4, tit. 1, 2 and 3, §§ 362 to 415, inclusive) which can apply thereto is that of section 388 which provides that an action, the limitation of which is not specially prescribed, must be commenced within ten years after the cause of action accrues. As the action was commenced within twenty years after the original judgment was obtained the twenty years’ limitation prescribed by section 376 cannot apply, and as the action is not based solely upon the joint liability sought to be enforced in the suit in which the original judgment was obtained, but upon that liability and the recovery of the judgment thereon, the six years’ limitation of section 382 is not available. There is no other specially prescribed limitation in either of the titles which can possibly apply, so that the ten years’ statute (§ 388) must apply, and where the defendant pleads such statute it is fatal to the plaintiff’s right to recover.</p>

December 31, 1906, affirming a judgment in favor of defendants entered upon a verdict directed hy the court. The nature of the action and the facts, so far as material, are stated in the opinion.

The parties to this action are husband and wife, but they had lived separate and apart from each other for six years, when they entered into an agreement under their hands and seals, of which the following is a copy : “ Agreement made and entered into this 12th day of Decernher, 1903, between Charles Winter, party of the first part, and Louise Winter, party of the second part, both of the County and State of Mew York. “ Whereas, the party of the second part now is and has…

The nature of the action and the facts, so far as material, are stated in the opinion. The expert’s answer to plaintiff’s hypothetical question, being admittedly predicated upon assumptions of fact not appearing in evidence, was incompetent. (Sullivan v. M. S. Ry. Co., 63 App. Div. 46; Link v. Sheldon, 136 N. Y. 1; Guiterman v. L., etc., S. S. Co., 83 N. Y. 358; Matter of Snelling, 136 N. Y. 515, 518; McGuire v. B. H. R. R. Co., 30 App. Div. 227; Connelly v. M. Ry.

The nature of the action and the facts, so far as material, are stated in the opinion. That construction of the contract sued upon must be given which is most favorable to the defendants. (Marshall v. C. T. M. A. Assn., 170 N. Y. 438; Rickerson v. H. F. Ins.

<p>1. Sale — Contract of “Sale or Return” by Which Goods May Be Returned if Rot as Represented — Reasonable Time for Return — Question of Fact. A contract of “ sale or return,” whereby a vendee may return the goods purchased, if not as represented by the vender, within a specified time, or, if no time is fixed, within a reasonable time, the sale to be absolute if the goods are not returned, is a valid and enforceable agreement; but if no time within which the goods may be returned is fixed by the contract, the question whether they were returned within a reasonable time is generally, in an action brought for the purchase price thereof, a question of fact for the jury.</p> <p>2. Same — Evidence Examined and Held to Establish a Contract of “Sale or Return” — Erroneous Direction of Verdict for Plaintiff. Evidence offered by the defendant in an action to recover the purchase price of goods examined, and held that, considered in its entirety, although obscured by evidence tending to show a breach of express warranty, it is sufficient to establish a contract for “sale or return;” that, therefore, it was reversible error for the trial court to direct a verdict in favor of the plaintiff; that, as no time was fixed by the contract testified to by the defendant within which the goods were to be returned, the defendant was bound to return them within a reasonable time, and, that the question whether they were so returned should have been submitted to the jury.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 18, 1907, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial in an action by an attorney to recover one-half of an extra allowance awarded to the defendants as attorneys in an action under an alleged agreement for a division of compensation and costs.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 12, 1907, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action to foreclose certain mortgages.</p>