Volume 3 — Bedell

The action was brought by the plaintiff, a creditor of the F. J. Kaldenberg Company, a corporation organized in April, 1887, under the act of 1840 and the acts supplemental thereto and amendatory thereof, against the defendants, as trustees of said corporation, upon their alleged failure to make and file an annual report as required by law, in the year 1892, and down to January 30, 1893.

<p>Evidence—Disclosures by Physician—Code op Civ. Pro. §§ 834, 886 —Waiver. An express waiver in an application for a policy of life insurance of the provisions of section 834 of the Code of Civil Procedure, made by the insured after the amendment in 1891 to section 836, providing that such waiver could be made only upon “the trial or examination” by his personal representatives, had taken effect, is ineffectual to permit disclosures by a physician of information which he acquired in attending the insured in a professional capacity.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. To be valid and binding a new promise to pay a debt discharged in bankruptcy must be express, distinct, unambiguous, certain and unconditional and in writing, and as one of such nature was not established here, the court improperly denied the motions to direct a verdict for the defendant and to dismiss the complaint. (Scheper v. Briggs, 28 App. Div. 115; Kiernan v. Fox, 43 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The declarations of the plaintiff’s assignor were incompetent, were properly rejected by the court and no error was committed by such ruling.

<p>1. Water Works Company — When Contract to Furnish Water BETWEEN IT AND A CONSUMER MAY BE IMPLIED. Where a quasi public corporation is chartered to supply water to the citizens of a municipality, and connects the house of a citizen with its street mains, and furnishes him w-ater with more or less regularity for a series of years, for which he pays its prescribed rates, a contract between him and the corporation by which it is to furnish and he is to pay for its water is to he implied.</p> <p>2. Injunction Restraining Company prom Cutting opp Supply. Where a company under contract with a citizen to supply him with water fails to do so and the latter refuses to pay a bill rendered, the former will he enjoined pendente lite from cutting off the customer from its water system, as the rights of the parties must he determined by the court.</p>

<p>Appeal from a judgment of the appellate division of the supreme court in the first judicial department, entered August 6, 1900, affirming a judgment of the court of general sessions in the city of New York convicting the defendant of the crime of grand larceny in the second degree.</p> <p>The facts, so far as material, are stated in the opinion.</p>

The action was brought to recover on certain promissory notes made by the firm of Atwater, Armstrong and Clark to the order of the defendant, the wife of Atwater, which notes she indorsed to the plaintiff after maturity.

'Appeal from a judgment of the supreme court, rendered at a trial term for the county of New York Dec. 29, 1899, upon a verdict convicting the defendant of murder in the first degree.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 6, 1900, reversing an order made at Special Term which denied a motion made by the respondent for an order requiring the payment to him of money deposited in court, and granting said motion upon certain conditions. The facts, so far as material, and the question certified are stated in the opinion.

The nature of the action and the facts, so far as material, are stated in the opinion. It is plainly and independently declared and clearly inferable from the provisions of the will that the annuity to plaintiff during his life is a charge on the real estate. (Crawford v. McCarthy, 159 N. Y. 514; Buchanan v. Little, 154 N. Y. 147; Clay v. Wood, 153 N. Y. 134; Hoes v. Van Hoesen, 1 N. Y. 124; Goddard v. Pomeroy, 36 Barb. 547; Beva/n v. Cooper, 72 FT.

Marcellus, deceased, of which he was one of the administrators. The original claim contained four items, but as there was no proof whatever as to two, the claim which was finally submitted to the surrogate for determination included only one item of sixty-five hundred dollars for money alleged to have been in the possession of John If. Marcellus, and another of one thousand dollars, the amount of a mortgage which was satisfied by him.

This is an action of replevin brought by the plaintiff, as trustee for the creditors of a corporation organized under the laws of another state, to recover the possession of a quantity of buggies attached by a sheriff in this state. The defendants are the indemnitors of the sheriff and were substituted as parties in bis place pursuant to the provisions of the Code of Civil Procedure.

The nature of the action and the facts, so far as material, are stated in the opinion. The order appointing plaintiff as trustee was void and ineffectual, and plaintiff, the so-called substituted trustee, has no legal interest in the agreement, and cannot recover thereupon. (Hunt v. Hunt, 72 N. Y. 217; Graig v. Town of Andes, 93 N. Y. 405 ; Chemung Bank v. Judson, 81 N. Y. 254; Matter of Varn Wyck, 1 Barb.

Division of the Supreme Court in the first judicial department, entered October 26, 1898, affirming a judgment in favor of defendant 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 complaint sets forth the receipt, on October 25, 1890, from one Blanchard of a sight draft for S3,120, drawn by the Interstate Investment Company upon the Bank of South Hutchinson, Kansas, and its deposit by the plaintiff with the defendant for.collection; that the defendant forwarded it to its agent, the Boatmen’s Bank of St. Louis, Missouri, which, in turn, forwarded it to its agent, the First National Bank of Hutchinson, Kansas; that, upon its receipt by the…

order denying a motion for a new trial and granted a new trial. This action was brought by the plaintiff against the defendant, a street railway company, to recover damages for an assault and battery, alleged to have been committed upon him by a conductor in forcibly expelling him from a car. He had paid his fare, upon entering one of the defendant’s cars upon a connecting line, and, with a transfer ticket, got upon the car in ■question.

The nature of the action and the facts, so far as material, are stated in the opinion. The exceptions to the charge of the trial justice and to his refusal to charge the propositions requested by defendant’s counsel were well taken. (Batty v. N. F. H. P. & M. Co., 37 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff was entitled to a permanent injunction upon the decision of the trial court. (Meyer v. Phillips, 97 N. Y. 485; Garvey v. L. I. R. R. Co., 159 N. Y. 332.) The title to the land vested in the Van Eensselaers under the Dutch and English patents, and from the time of the Dongan and Queen Anne grants the Van Eensselaers had a title in fee to the bed of the Hormanskill creek.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, made April 2, 1900, which affirmed a determination of the Appellate Term reversing a judgment in favor of plaintiff of the Municipal Court of the city of Rew York. The nature of the action and the facts, so far as material,, are stated in the opinion. The Municipal Court had jurisdiction to render the judgment in this action.

<p>Corporations—Compensation of Director for Services Rendered Outside of his Official Duties. The president and director of a cor-' poration who renders services thereto outside of his official duties, upon an employment of the directors upon a promise of compensation, is entitled to receive the value of such services and the expenses incurred during their rendition, although he is not entitled by the by-laws to any salary for his official services and there is no express resolution of the board of directors containing an agreement to employ and to compensate him.</p>

The Appellate Division, in allowing the appeal, certified the following questions: 1. Does it appear upon the face of the complaint herein that there is a misjoinder of parties plaintiff ? 2. Does it appear upon the face of the complaint herein that causes of action have been improperly united ?

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 11,1900, reversing an order of Special Term vacating a levy of attachment made upon certain certificates representing shares of stock of the Hew Jersey and Pennsylvania Telephone Company. The question certified 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 fourth judicial department, entered August 7,1900, affirming an order of the county judge of Monroe county dismissing supplementary proceedings for the collection of a tax. The questions certified and the facts, so far as material, are stated in the opinion. None of the objections to the tax proceedings made by the respondent or discovered by the county judge are tenable.

The plaintiff Mansfield in September, 1887, sued the defendant, the Mayor, Aldermen and Commonalty of the City of New York, to recover a balance of $1,000 alleged to be due him on contract with the city for the construction of a sewer.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 17, 1898, unanimously affirming a judgment in favor of plaintiff entered upon the report of a referee.</p> <p>This action was brought upon a bond dated January 2nd, 1893, signed by Earle S. White as principal, and by the defendants and' others as sureties, to recover the sum of $2,467.36 alleged to be due the plaintiff thereon by reason of a breach of the condition thereof.</p> <p>The bond was in the penal sum of $20,000, with the obligatory part in the usual form, and the following recital and condition underwritten : “ Whereas, the above bounden Earle S. White has been elected Cashier of the State Bank of Pike, located and doing business in the Tillage of Pike, N. Y., by reason whereof divers sums of money, goods and chattels, the property of said bank, will come into his hands,</p> <p>“¡Now, therefore, the condition of the above obligation is such that if the said Earle S. White, his executors or administrators or assigns, at the expiration of his term of office upon request to him or them made, shall make or give unto the said State Bank of Pike, or its agent or attorney, a just and true account of all such sums of money, goods or chattels, and other valuable things as have come into his hands, charge or possession, as cashier of the said bank, and shall pay over and deliver to his successor in office, or such other person as may be duly authorized to receive the same, all such sums of money, goods and chattels and other valuable things as shall appear to be in his hands and due by him to the said bank; then the above obligation to be void, else to remain in full force and virtue.”</p> <p>White was not a j>arty to the action, but the answer of his sureties, among other defenses, set forth in substance a general denial.</p> <p>The referee found that on the 12th of April, 1892, the plaintiff, a banking association incorporated under the laws of this state, employed White as its cashier; that on the 2nd of January, 1893, the bond in question was given ; that White ceased to be cashier on the 15th of August, 1895, and that he had failed to pay over and deliver the following sums which came into his possession as cashier : $223.04 of bills and notes discounted ; $361.08 of moneys deposited in the bank by persons not doing an active business, and $1,283 of moneys deposited for which certificates of deposit were issued. Judgment was directed and entered for the sum of $1,867.12, and after affirmance by the Appellate Division the defendants appealed to this court.</p> <p>The admission in evidence of the books of the bank was error. (White v. Ambler, 8 N. Y. 170; C. B. Co. v. Lewis, 63 Barb. 111; O. Nat. Bank v. Carll, 55 N. Y. 440 ; Melvin v. Wood, 4 Abb. [N. S.] 441; Kellum v. Clark, 97 N. Y. 390; Thompson v. MacGregor, 81 N. Y. 592; Bissell v. Saxton, 66 N. Y. 55; Hatch v. Elkins, 65 N. Y. 489.) Hone of the preliminaries necessary to make the books evidence, and memoranda or otherwise, was presented. (Irish v. Horn, 84 Hun, 121; Dykman v. Northridge, 61 N. Y. S. R. 863; Silverman v. Simons, 14 Misc. Rep. 222; Lawrences. Barker, 5 Wend. 301; McKay v. Overton, 65 Tex. 82.)</p> <p>The books introduced in evidence were the journal and the ledger, commonly called “ Daily Statement Register,” and were kept by White, and the entries therein made in the course of his duties as cashier were evidence, both against him and his sureties. (Whart. on Ev. § 1212; M. L. Ins. Co. v. Callan, 23 N. Y. S. R. 629 ; Humphrey v. People, 18 Hun, 393 ; W. Ins. Co. v. Frothingham, 122 Mass. 391; Abb. Tr. Ev. [2d ed.] 636; Bank of Brighton v. Smith, 12 Allen, 243 ; U. S. Assn. v. Edwards, 47 Mo. 445 ; Atlas Bank v. Brownell, 9 R. I. 168; Olney v. Chadsey, 7 R. I. 224; Snell v. Allen, 1 Swan [Tenn.], 208; Bartlett v. Board of Education, 59 Ill. 364.)</p>

This action was brought by an abutting owner upon Greene avenue, in the borough of Brooklyn, to recover damages alleged to have been sustained from injuries to her house through the construction of a sewer by means of an open trench in said street. The sewer is known as a relief sewer, laid to carry off surface water which, after heavy storms, flooded a portion of the city quite remote from the plaintiff’s property.

The nature of the action and the facts, so far as material, are stated in the opinion. Judgment against plaintiffs should have been directed for total failure to establish any title to the money owing by the insurance company which it deposited in court after obtaining an order of interpleader. (Bassett v. Leslie, 123 N. Y. 396; Delancy v. Murphy, 24 Hun, 503 ; Chamberlain v. Almy, 3 Misc. Rep. 555 ; Venable v. N. Y. B. F. Ins. Co., 17 J. & S. 481; Kohn v. Jacobs, 4 Misc.

Supreme Court in the first judicial department, entered upon an order made May 6, 1898, reversing a judgment in favor of defendants, rendered by the Appellate Term of the Supreme Court, which affirmed a judgment of the General Term of the Mew York City C°nrt affirming a judgment entered upon a verdict. (See 164 M. Y. 476.) The nature of the action and the facts, so far as material, are stated in the opinion.

The nature of the action and the facts, so far as material, are stated in the opinion. The village was at all times moving under the act of 1875 in inaugurating its water system. The act of 1875 was not repealed until several months after operations were commenced, and by that act alone the steps taken must be measured.

<p>1. Constitutional Law — Special Act Authorizing Extension of Railroad and Embracing Regulation, as to Rate of Fare. A private and local statute entitled an act to authorize a railroad company to extend its road is not obnoxious to the constitutional requirement (Art. 3, § 16) that such a hill shall not embrace moie.than. one subject and that shall he expressed in its title, because it contains a provision regulating the maximum rate of fare which the railroad may charge per mile.</p> <p>2. Chapter 594, Laws of 1872, not Repealed by General Railroad Law. The special statute known as chapter 594 of the Laws of 1872, a provision of which authorizes the Utica, Ithaca and Elmira Railroad Company to charge fare at the rate of four cents per mile, was not repealed by the General Railroad Law (L. 1890, ch. 565).</p> <p>3. Railroads — Special Statutory Provision as to Fare—Property Right. The right of a railroad to charge fare at the rate of a specified sum per mile, secured to it by a special act, is a privilege or franchise in the nature of property, is alienable or transferable by mortgage, and is not lost by a transfer of the road, oil foreclosure sale, to natural persons who act as the conduit for transmittine- the property to another corporation, and the subsequent consolidation of the railroad into a general system does not impair the right of the consolidated company to charge upon the constituent line the rate of fare authorized by the original act.</p>

The facts, so far as material, are stated in the opinion. The merits of plaintiff’s claim were fully established. Where the owner consents to making the alterations, imposes no special limitation as to the manner in which they shall be made, and, knowing their character and extent, does not' object to the method pursued to accomplish the result, the premises are liable for the expenses actually incurred. (Hankinson v. Vantine, 152 N. Y. 20; Nat.

<p>Appeal — Costs. When the Court of Appeals awards to a party costs in the trial court, the award carries with it not only the taxable costs and taxable disbursements, but such further sum, if any, by way of an extra allowance, as that court, in the exercise of a sound discretion, may award.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The complaint herein states facts sufficient to constitute a cause of action. (Abbott’s Trial Ev. [2d ed.] 1012, 1013; Parsons v. Keyes, 43 Tex. 558 ; Lynch v. Johnson, 67 N. W. Rep. 908; Daltons. Gibb, 35 Eng. C. L. 49 ; Tyler on Infancy, 74, 75, 102; 1 Pars, on Cont. 296; Chase’s Blackstone [3d ed.], 183 ; R. Ry.

<p>1. Mechanics’ Lien — Rights 'of Sureties upon Bond Given to Discharge it. Sureties upon a bond given to discharge a mechanics’ lien may defend an action against themselves and their principals to foreclose it, in which the judgment demanded is in form against the property represented by the bond, may set up any legal or equitable defense which would have availed the principals, and may establish it by proof, and are not precluded from contesting an unjust, false and exaggerated claim, by the default of the principals in failing to defend it.</p> <p>3. Effect of Willful and Intentionally False Statements in Notice of Lien. Where in such an action it appears that the plaintiffs enormously exaggerated their claim and intentionally and by pretense of a fictitious contract sought to enforce and establish a false and fabricated demand, no recovery can be had against the sureties upon the bond, since, where a party inserts in a notice of mechanics’ lien statements of fact which are not only untrue, but are willfully and intentionally false in some important or material respect, he thereby forfeits the right to a lien and renders the notice void or ineffectual.</p>

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 28, 1898, affirming 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.

The nature of the action and the facts, so far as material, are stated in the opinion. The use of his name, granted by the defendant in the bill of sale, was a limited use, expressly defined. (Brown Chemical Co. v. Meyer, 139 U. S. 544.) The sale of the good will of the business did not carry with it the right to use the names as substitutes for, or in addition to, the name of the plaintiff corporation in correspondence through the mail.

The nature of the action and the facts, so far as material, are stated in the opinion. The defendants were not released from their liability under the guaranty by the extensions of payment. (Murray v. Marshall, 94 N. Y. 611; Spencer v. Spencer, 95 N. Y. 353; Matter of Piza, 5 App. Div. 181; Kennedy v. Goss, 38 N. Y. 330; 24 Am. & Eng.

The nature of the action and the facts, so far as material, are stated in the opinion. The injury which the plaintiff sustained while cleaning off the side of the embankment was the result of one of the risks which he assumed by his employment. All of the dangers were open and apparent and he voluntarily assumed them.

The nature of the action and the facts, so far as material, are stated in the opinion. The trial court erred in holding that the plaintiff had satisfactorily proven his title to great lot No. 67.

This action was brought by a vendee of real estate, under an executory contract, to recover the amount paid thereon in advance and for examination of title, upon the ground that the vendor could not fulfill her contract to convey because her title was not marketable.

<p>1. Principal and Agent— Contract — Undisclosed Principal. Persons who contract in writing as principals for work and materials cannot evade liability by claiming or proving by parol that they acted for some undisclosed principal or syndicate to which they intended to assign the contract, where such fact was not mentioned therein nor made known to the parties with whom they contracted.</p> <p>2. Evidence — Parol Proof to Vary Contract. That the specifications for work contracted for by a firm use in some portions the word “company” and provide that a percentage shall be retained by it as a guaranty of the faithful completion of the work, does not create such an ambiguity as to render admissible parol proof that the firm acted for an undisclosed principal.</p> <p>3. Contract by Agent — Notice. The words “ as agreed upon here,” contained in a letter authorizing an agent to sign a contract for a ditch for irrigation purposes, do not impose upon the parties with whom he contracted the duty of ascertaining all that had been discussed between the agent and his principals or as to who were to be the responsible parties in the transaction, where the words related merely to the manner of building the ditch.</p> <p>4. Personal Liability. An agent who contracts for work and materials in his own name, without disclosing his principal, makes himself personably liable therefor, although the other party to the contract may suppose that he is acting as agent and has means of ascertaining the principal, but remains without actual knowledge of the principal’s identity.</p>

department, overruling plaintiff’s exceptions, ordered to be heard in the first instance by the Appellate Division, and denying a motion for a new trial after a nonsuit granted by the trial court. The defendant is the owner of premises in the city of Rochester which she and her family occupy as a residence.

The action is brought to recover salary due to the plaintiff as a teacher in the public schools of the city of Rew York for six years prior to the commencement of this action, July 15, 1896.

The complaint alleged that “ between October 6th, 1896, and December 10th, 1896, plaintiff, doing business as aforesaid, sold and delivered to defendant, and at his request, certain merchandise, said sale and delivery being to, and said request and promise to pay therefor being made by the wife of defendant, defendant’s agent, and said merchandise, to to ■ wit, dry goods, being of the value of three hundred and and thirty-five 85-100 ($335.85) dollars, which sum defendant…

The nature of the action and the facts, so far as material, are stated in the opinion. The dismissal of plaintiff’s complaint as to defendant Feiock was error.

The facts, so far as material, are stated in the opinion. The sixteenth provision of the will is void for the reason that it is violative of our statutes, which forbid the suspension of the power of alienation of real estate and the absolute ownership of personal property for a longer period than during the continuance of not more than two lives' in being at the time of the death of the testator.

This action was brought to recover damages for personal injuries sustained by the plaintiff on account of the alleged negligence of the defendant. On the trial evidence was given tending to show that the plaintiff; aged sixteen years, owing to the crowded condition of one of the defendant’s street cars, attempted to get upon the front platform, but was obliged to stand with one foot on the platform and the other on the step while he held onto the dashboard with both hands.

On February 19th, 1889, the firm of Hemenway & Browne, of which the plaintiff is the survivor, and the firm of Knudson, Paterson & Co., of which the defendants are survivors, entered into a contract, of which the following is a copy : “ T. F. Edmands & Co., “ P. O. Box 5111. “ 61 Kilby Street, “ Boston, February 19, 1889. “ Sold to Messrs. Knudson, Paterson & Go., for account of Messrs.

Marshall, deceased, and to settle the accounts of trustees thereunder. The facts, so far as material, are stated in the opinion. The fixed intention and settled purpose of testator was that each daughter, at the end of the twelve-year period, should be absolutely vested with the title of the estate previously held in trust for her.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, made May 5, 1899, reversing a judgment in favor of plaintiff entered upon the report of a referee, and granting a new trial.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p>

The plaintiff, as substituted trustee under the will of James Baker, deceased, brought this action for the purpose of securing an accounting of its trust.

<p>Slander—When Question Whether Words Import a Crime is for the Jury. Where in. an action for slander, words proven on the trial to have been uttered by the defendant are ambiguous and in the connection in which they were used are capable of a construction imputing arson to the plaintiff, and they might have been so understood, a question of fact is presented for the jury as to whether defendant intended to charge the plaintiff with such crime.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The contract was an oral contract for the conveyance of an interest in land, and was, therefore, void under the Statute of Frauds, and the plaintiff has no right to a judgment decreeing a specific performance thereof.

The nature of the action and the facts, so far as material, are stated in the opinion. The Statute of Limitations bars the plaintiff’s right to sell the land of Anderson. It was undisputed that neither Anderson nor his grantor, or any one in his behalf, has ever paid anything on the bond or mortgage, and that twenty-eight years had elapsed since they became due before this action was commenced.

The complaint seeks to recover damages sustained by the plaintiffs because of the breach by the defendants of their alleged contract to deliver to the plaintiffs the bills of lading of one hundred and fifty bales of cotton.

This action was brought to recover a sum claimed to be due to the plaintiff under a contract, made orally, with the defendant, in May, 1895 ; by the terms of which the latter had agreed to pay to the former thirty dollars each month, while he lived and while it remained a corporation, in consideration of his agreement to give up the business of dealing in moulding sand obtained from sand banks in the county of Albany, and not to engage further in it, personally, or as agent…

The nature of the action and the facts, so far as material, are stated in the opinion. Restrictions inserted in a policy of insurance upon the powers of the agent to waive any condition, unless done in a particular manner, cannot be deemed to apply to those conditions which relate to the inception of the contract, when it appears that the agent has delivered it and received the premium with full knowledge of the actual situation. (Wood v. A. F. Ins.

<p>. Benefit Insurance — Fund Paid to Fraternal Beneficiary, not Exempt from Attachment for his Debts. Section 288 of the Insurance Law. providing that “All money or other benefit, charity, relief or aid to be paid, provided or rendered by any such society, order or association, whether voluntary or incorporated under this article or any other law, shall not be liable to be seized, taken or appropriated by any legal or equitable process, to pay any debt or liability of a member, beneficiary or beneficiaries of a member,” does not include the case of money after it has been actually paid over and received by the beneficiary, and, therefore, a security representing a part of such money is liable to an attachment for a debt of the beneficiary.</p>

i 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. It was error to admit the expert evidence introduced by the plaintiff as to the proper method of constructing a hole for the purpose of underpinning'the foundation of the chimney, and as to the proper method of shoring or bracing it.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered August 8, 1808, affirming a judgment in favor of plaintiff entered upon a verdict, and an order denying a motion for a new trial.</p>

<p>Motion for reargument. (See 165 N Y. 13.)</p>