Volume 3 — E.H. Smith

<p>1. Criminal law—Indictment—Perjury.</p> <p>By force of section 100 of the Penal Code an information charging the making of a false affidavit will not be supported, unless it appears on the trial that something more had been done than the mere taking of the oath by the affiant.</p> <p>2. Same.</p> <p>It is sufficient that the indictment charges that the defendant “ made ” the affidavit</p> <p>3. Same—Perjury.</p> <p>The crime consists in the making of a false affidavit upon a material matter in an action or special proceeding.</p> <p>4. Same.</p> <p>The making must he averred, and the fact of delivery must he proved, to sustain the averment.</p>

<p>1. Excise law—Social clubs—Construction.</p> <p>The construction placed upon a statute, penal in character, by public officers charged with a duty of executing its provisions, for many years may properly be considered in determining the legislative intention.</p> <p>3. Same.</p> <p>The furnishing of liquors by a social club to its members at a fixed price is not a sale within the meaning of chapter 401 of 1893, and no license is required for the purpose.</p> <p>3. Same.</p> <p>Such a transaction, conducted by a bona fide club, organized under the statute for legitimate purposes, is but the distribution among the members of the property belonging te them in common.</p> <p>4. Same.</p> <p>The fact that the payment is made does not change the character of the act.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The title was not defective because of the slight excess in the size of the building over the general statement in the deed of the width and depth of the lot. (Todd v. U. D. S. Inst., 128 N. Y. 636; Hellreigel v. Manning, 97 N. Y. 56 ; King v. Bardeau, 6 Johns. Ch. 28; Winne v. Reynolds, 6 Paige, 407; Ten Broeck v. Livingston, 1 Johns.

<p>Appeal from judgment of the General Term of the Superior Court of the city of Hew York, entered upon an order made December 29, 1893, which affirmed a judgment in favor of plaintiff entered upon a verdict, and also affirmed 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 case involved questions of fact for the jury. (Losee v. Buchanan, 51 N. Y. 476 ; Cosulich v. S. O. Co., 122 N. Y. 118; Reiss v. N. Y. & Co., 128 N. Y. 103; Volkmar v. M. R. Co., 134 N. Y. 418; Mullen v. St. John, 57 N. Y. 567 ; Cahalin v. Cochran, 1 N. Y. S. R. 583; Kearney v. L. R. Co., L. R. [5 Q. B.] 411; Byrne v. Boadle, 2 H. & C. 722; Wiedmer v. N. Y. E. R. R. Co., 114 N. Y. 462; Smith v. Coe, 55 N. Y. 678.) The ruling taking the question of liability from the jury was not procured or induced by the defendant. (Haines v. N. Y. C. & H. R. R. R. Co., 145 N. Y. 235.)</p> <p>The denial of defendant’s motion to dismiss the complaint was proper. (Goll v. M. R. Co., 125 N. Y. 714; Volkmar v. M. R. Co., 134 N. Y. 418 ; Lowery v. M. R. Co., 99 N. Y. 158; Mullen v. St. John, 57 N. Y. 567; Lyons v. Rosenthal, 11 Hun, 46; Scott v. L. D. Co., 3 H. & C. 596 ; Byrne v. Boadle, 2 H. & C. 722; Kearney v. L. R. R. Co., L. R. [5 Q. B.] 411; Kidder v. Stevens, 60 Cal. 419; 1 S. & R. on Neg. [4th ed.] §§ 59, 60.) The court did not err in directing a verdict for the plaintiff, leaving only the question of damages to the jury. (Ormes v. Dauchy, 82 N. Y. 443 ; Dillon v. Cockcroft, 90 N. Y. 649; O'Neill v. James, 43 N. Y. 84; Vil. of Port Jervis v. F. Nat. Bank, 96 N. Y. 550; Banker v. Knibloe, 69 Hun, 539; Sutter v. Vanderveer, 122 N. Y. 652; Kirtz v. Peck, 113 N. Y. 222; Stratford v. Jones, 97 N. Y. 586 ; Mayer v. Dean, 115 N. Y. 556 ; Provost v. McEncroe, 102 N. Y. 650.) The plaintiff should be given ten per cent damages for delay, under section 3251, subdivision 5, of the Code of Civil Procedure. (Reid v. Mayor, etc., 139 N. Y. 538 ; Wright v. Sanders, 3 Keyes, 323; Cohen v. Mayor, etc., 128 N. Y. 594; Johnson v. L. I. R. R. Co., 144 N. Y. 719.)</p>

On the first of FebruáVy, 1882, the state engineer and surveyor, by direction of the commissioners of the land office, sold to one Jere W. Finch certain timber land in the county of Hamilton, and issued to him a certificate stating that he had on that day purchased all the interest of the People of the state of Hew York in the lands aforesaid for the sum of $6,300, “ paid in full.” The title of the state depended on certain tax sales, for the non-payment of taxes, made in…

The defendant in this action is a deputy sheriff of the county of Livingston, and was sued for seizing upon an attachment and subsequently selling upon an execution a part of a stock of merchandise in possession of the plaintiff.

This was an action to recover damages from the defendant for wrongfully erecting a tent in the public highway and negligently leaving it there and thereby causing a horse driven by the plaintiff to become so badly frightened as to overturn the wagon, throw the plaintiff out and inflict serious injuries upon his person.

<p>Accident Insurance — Death from Self-Injury — Pleading — Burden of Proof. When, in an action upon a policy of insurance “ against death resulting from bodily injuries through external, violent and accidental means,” and containing an exception limiting the insurer’s liability “in case of death resulting from injuries wantonly inflicted by the insured,” the complaint alleges that the insured died from external, violent and accidental means, and that the injuries were not wantonly inflicted by himself, and the answer, after admitting the making of the policy, sets up a general denial; and then alleges as a separate defense that the insured died from injuries wantonly inflicted by himself, the plaintiff is not relieved from the burden of making out in the first instance & prima facie case by a preponderance of evidence that the insured died from external, violent and accidental means; and when the evidence shows that the injury was self-inflicted, and the only question for the jury is whether death resulted from accident or suicide, a charge is ■erroneous which permits the jury to infer that the defendant rested under the burden of proof from the opening of the trial, and which refuses to instruct the jury that if, upon the whole case, they find the evidence to be evenly balanced upen the question as to whether the insured intended to kill himself, they must find for the defendant.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. This action, which is brought, under sections 1843, 1849 of the Code, cannot be maintained because it was brought within less than three years after the issue of letters testamentary upon John Fassett’s estate. (2 R. S. 109, § 53; Roe v. Swezey, 10 Barb. 247; Leonard v. Morris, 9 Paige, 90; Butts v. Genung, 5 Paige, 254 ; Code Civ.

The nature of the action and the facts, so far as material, are stated in the opinion. The evidence was insufficient to support the finding of the referee, that the defendants’ mother, Ellen McCarty, executed, acknowledged or delivered to the plaintiff the bond and mortgage in question. (Code Civ.

The action was brought to recover the purchase price of 1,224 railroad ties, alleged in the complaint to have been sold and delivered by the plaintiff to the defendant in the months of February and March, 1890, for the price of $602.55.

<p>1. Criminal law—Receiving stolen property.</p> <p>On trial of an indictment for receiving stolen property, consisting of railroad bonds, the circumstances as to defendant’s manner of receiving them, his manner of dealingwith them, his knowledge of the person from whom he claimed to have received them, his own acts in transferring them, the many peculiarities attending such transfers, .and his method of payments to the claimed owner as proved and admitted by him, when added to the fact that these bonds had been stolen and were in his possession, were held to he sufficient evidence of the fact that, when he sold them, he knew that they were stolen, to justify the submission of the question to the jury.</p> <p>2. Same—Evidence.</p> <p>Upon such trial, evidence to show by experts that the bonds had been changed, the indorsements thereon removed, the numbers upon the bonds and coupons obliterated and others substituted, what names and numbers were originally upon them, and that the signatures upon powers of attorney which defendant claimed were given to him, were in his own handwriting, is admissible.</p> <p>3. Appeal—Error cured.</p> <p>The error in admitting.improper evidence is cured when the evidence is stricken out on the exceptant’s motion, and the jury are directed to disregard it.</p> <p>4. Criminal law—Evidence—Hearsay.</p> <p>Testimony as to statements made to witness by a third person, which in no way related to of formed a part of any transaction which took place with the defendant, is clearly inadmissible on part of defendant.</p>

<p>Ciiiminal law—Misconduct.</p> <p>Where, during the trial of an indictment for murder, the jury, under the direction of the court and in the absence of the defendant and his counsel, visited the saloon where the homicide occurred and which was kept by a witness for the people, and while there the witness conversed with them, offered them cigars which some of them accepted, and made statements upon disputed questions in the evidence, and the jury became separated during the time, it constitutes such misconduct on the part of the jury as to prejudice the defendant and affect his substantial rights.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The transfer made by Hunter to the bank, one of his creditors, constituted a general assignment for benefit of all the creditors. ( White v. Cotzhausen, 129 U. S. 329 ; Krebs v. Ewing, 22 Fed. Rep. 693; Freund v. Gaegerman, 26 Fed.

<p>Bill of Sale — Chattel Mortgage. When the provisions of an instrument which is in form an absolute bill of sale, taken in connection with the surrounding facts, indicate that the parties contemplated a loan of money and a sale of the property, upon the condition, however, that the property should be'returned upon payment of the money so loaned, the instrument is in effect a chattel mortgage; and the fact that it employs the term “re-sale” will not change its meaning, when no other sum than the amount of the loan is mentioned or contemplated as the price of such rc-sale.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The injury to the plaintiff was caused by his own negligence.

<p>1. Sale by Manufacturer of Goods — Implied Warranty. A manufacturer who sells goods of his own manufacture impliedly warrants that they are free from any latent defect growing out of the process of manufacture.</p> <p>2. Implied Warranty—Written Contract. Implied warranties may attach to a written as well as to an unwritten contract of sale.</p> <p>3. Refined Petroleum — Sale — Description—Latent Defects. The delivery of refined petroleum of the brand, color, test and specific gravity called for by a written contract between the purchaser and the manufacturer does not satisfy the contract unless the oil was free from latent or hidden defects that rendered it unmerchantable at the time and place' of delivery, and that could have been avoided or guarded against in the process of refinement, or in the selection of material by reasonable care and skill.</p> <p>4. Refined Petroleum — Inspection — Acceptance—Effect as to Latent Defects. An acceptance of refined petroleum under a contract describing the brand, color and fire test, made by an inspector under the rules of a produce exchange, which make the acceptance operate as an acknowledgment that the goods are in accordance with the contract, does not relieve the manufacturer from liability for latent defects which render the oil unmerchantable, unless they would appear upon the inspection.</p> <p>5. Judgment — Evidence against Third Party. A judgment against a purchaser of goods for damages on account of defects therein is, so far as the issues in the cases are identical, admissible in his favor in a subsequent action by him against his vendor, who was notified of and participated in the trial of the former action.</p> <p>6. Judgment—Parol Evidence as to Issue Decided, Parol proof is admissible to show the questions actually litigated and decided in a former action, when the judgment therein is admitted in evidence.</p> <p>’ 7. Judgment — Evidence to Prove Part of Case. The fact that a judgment does not prove the entire case of a plaintiff, who offers it in evidence, does not render it inadmissible if it proves any material fact of his case.</p> <p>8. Evidence — Manufacturer’s Knowledge of Destination of Goods. Evidence that the manufacturer of refined petroleum knew from the manner in which the goods were packed, as well as from other sources, tne destination to which they were to be sent by his vendee, is admissible on the question of his liability for latent defects therein which render the goods unmerchantable.</p>

This action was brought to restrain the operation and maintenance by defendants of their elevated railroad in front of plaintiff’s premises and for the recovery of damages caused thereby. 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 finding of the Special Term that the erection of the bay-windows interferes in a substantial degree with the light and air coming to the plaintiffs’ house and affects the same remaining unimpaired, and not even excepted to, and without impeachment by cross-appeal or otherwise, as matter of law, leaves the defendants without any legal excuse for their acts.

<p>1. Negotiable Warehouse Certificates—Issuance by Officer to Himself, Without Express Authority — Liability of Company to Transferee. If a bank in good faith takes from an officer of a warehouse company, who has express authority to issue the company’s negotiable warehouse certificates in favor of third parties for goods deposited by them, hut who has no express authority to issue certificates in favor of himself, a certificate issued by him as such officer to himself as an individual, as collateral security for a personal loan, and it turns ■out that the certificate was fraudulently issued, as the officer had at the time no goods on deposit with the company, the bank can hold the company liable as for a conversion of the goods mentioned in the certificate only by showing that the certificate was valid as to a holder thereof for value, by reason of implied authority having been conferred upon the officer to issue certificates in his own favor for goods deposited by him, and not by merely showing that statements made to the hank by a representative of the company in charge of its warehouse, that the goods mentioned in the certificate were on deposit, were false; and a recovery based solely upon the falsity of such statements, and not upon the validity of the certificate by reason of implied authority to issue it, is untenable.</p> <p>3. Trial — Charge— Submission of Case to the Jury on an Untenable Question. When a case and the evidence present two questions of fact, on one of which a recovery would be tenable, but on the other untenable, as matter of law, and the trial court expressly withholds the first question from the jury, and submits the second to them as the sole basis for a recovery, the error is not cured, so as to sustain a recovery, by the fact that the charge contains expressions susceptible of such a construction as to impliedly enable the jury to consider some elements of the expressly excluded question.</p>

This was a motion to dismiss the appeal herein. The action was commenced in the Court of Common Pleas for the city and county of New York on the fifth of April, 1893, and was tried in the month of January, 1895, resulting in a judgment in favor of the plaintiff for the sum of $9,543.00.

<p>1. Supreme court—Assignment of Justice,</p> <p>The provision of the constitution and section 232 of the Code limit the justices of the appellate division to appointing to duty the justices of the department in which the appellate division is located, and do not apply to the appoiutment of a justice of another department.</p> <p>2. Same.</p> <p>Supreme court justice, who is not a member of the appellate division of the supreme court, may hold court in any county of the state.</p> <p>3. Same.</p> <p>Such justice, if he accepts an assignment by the appellate division, is .authorized by the constitution to hold a criminal term of the supreme court.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The' General Term erred in refusing to review the facts or to consider the question whether the judgment was sustained by evidence. (Dibble v. Dimick, 143 N. Y. 549; Renwick v. N. Y. E. R. R. Co., 36 N. Y. S. R. 682 ; Porter v. Smith, 107 N. Y. 531; Perkins v. Hill, 56 N. Y. 87; Halpin v. Phenix Ins.

Stover upon a verdict obtained on a trial of an issue of fact at Circuit, and also affirmed 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 Surrogate’s Court has jurisdiction to determine all questions relating to the factum of wills of real property offered for probate. (Redf. on Surr. 150 ; Code Civ.

<p>1. Evidence—Homicide—Insanity.</p> <p>Where, on the trial of an indictment for homicide the defense is insanity, the hypothetical question to an expert witness, which assumes that the de. fendant was subject to epilepsy, when there is no evidence to such effect, is properly excluded.</p> <p>2. Same—Error cured.</p> <p>But, if such ruling is objectionable, it is cured by a subsequent ruling permitting the question in substantially the same form to be answered.</p> <p>3. Same—Hypothetical question.</p> <p>Upon such trial, an answer to a hypothetical question which embraces a conclusion of law which was not called for by the question or proper to be included if it had been, is properly excluded.</p> <p>4. Homicide—Instruction.</p> <p>A request to charge “ that the jury were bound to believe the testimony of any disinterested witness which is not contradicted and which is not in itself improbable,” is properly declined.</p> <p>5. Same—Question of fact.</p> <p>The rules of evidence in civil cases are applicable also to criminal cases, except that in criminal cases the jurors are the exclusive judges of all questions of fact.</p> <p>6. Sauk—Instruction.</p> <p>Upon such trial, an instruction “that if the jury find that, at thg. moment of shooting, the defendant had sufficient reason to know the nature and quality of his act, And that it was wrong; but that, nevertheless, he would not have done it hut for a sudden fit of passion, they can not convict him of the crime charged in the indictment,” is properly refused.</p> <p>7. Same.</p> <p>Refusal to charge “ that if the jury believed, that the defendant’s mother, ( in her lifetime, was insane, and that insanity is hereditary, they must take! that fact into consideration in determining the question of the defendant's' insanity „at the moment of the shooting,” is erroneous.</p> <p>8. Same.</p> <p>The court is not required to charge in reference to specific items of evi. dence selected by counsel, but can only properly be called upon to charge generally with reference to the facts proved.</p>

<p>Appeal from a judgment convicting the defendant of murder in the first degree.</p> <p>Marie Barberi was convicted of murder in the first degree, and. appeals.</p>

<p>1. Appeal — Motion to Dismiss. An objection to the entertainment of an appeal by the Court of Appeals, on the ground that it does not appear by the record that infant defendants and respondents had been serv.ed with process in the action, should be presented by a formal motion to dismiss the appeal, after notice to all parties.</p> <p>2. Will — Construction—Trust—Suspension op Power op Alienation. A will of real and personal property, attacked on the ground that it violated the statutory limitation upon the suspension of the power of alienation by creating a trust for a greater period than two lives in being at the death of the testator, held to be saved from such objection by provisions therein directing the division of the estate, for which three life beneficiaries were designated, into two distinct and separate funds and shares, one share for the benefit of one of the life beneficiaries and the other for the benefit of the two other beneficiaries, and disclosing an intention to create two valid and distinct corresponding trusts, the first for one life and the other for two lives in being.</p> <p>3. Trust—Power to Sell and Re-invest. A testamentary trust for a period in excess of the statutory limitation upon the suspension of the power of alienation is not saved from the condemnation of the statute by the fact that the trustee is empowered to sell the trust property and to invest and re-invest the proceeds, where, notwithstanding the power of sale and its incidents, the'estate remains fettered by the trust.</p>

This action was brought to set aside an assessment, valid on its face, upon real estate belonging to the plaintiff, for a local improvement alleged to have been made by the city authorities without jurisdiction. The answer denied the alleged irregularities, and set forth facts showing that all the proceedings on the part of the defendant were regular and valid.

The nature of the action and the facts, so far as material, are stated in the opinion. Neither delivery nor tender of the dies was hecessary to put the defendant in default. A notice that the dies were ready and a demand of payment was an offer to deliver upon payment, and was enough.

<p>1. Fire Insurance—Ambiguous Description of Premises in Policy. If the meaning of the words employed by a fire insurance company in its policy to describe the insured premises is ambiguous, that meaning should be given which is most favorable to the insured, as, e. g., where a policy describes the premises as the building and additions at a certain street number, and it appears that there were two buildings owned by the insured known by that street number, one being on the front and the other at the rear of the lot, connected externally by an intervening structure, rendering it doubtful, from a reading of the policy and the situation of the property and the surrounding circumstances, whether the property insured embraced all the buildings or only a part.</p> <p>2. Written Contract — Evidence as to Intent. One party to a written contract cannot state, as a witness against the other party, how he understood it when he signed it, nor testify as to its meaning or as to his intent.</p> <p>3. Insurance Policy—Intent oe the Insurer—Evidence. In an action upon a fire insurance policy, a representative of the insurer cannot testify, against the objection of the insured, what he meant or intended by ambiguous words describing the insured premises, inserted by him in the policy.</p> <p>4. Custom—Evidence to Establish. A custom or usage is a matter of fact, not of opinion, and must be shown by those who have observed the method of transacting the particular kind of business as conducted by themselves and others; questions calling for what a witness would do, and not for what he had done or seen done, are not competent to establish a custom.</p> <p>5. Fire Insurance—Description of Premises—Custom. A custom or usage of fire insurers, in describing insured buildings in their policies, depending upon whether situated on the front or rear of a numbered street lot, even if such a custom exists and is of a nature recognized by the law, is not binding upon the insured, where it is not shown either to have been known to him at the time of making the contract of insurance or to have been so generally known as to raise a presumption that the parties had it in mind at that time.</p>

<p>1. Homicide—Insanity.</p> <p>Where an indictment for murder of defendant’s wife in which insanity is interposed as a defense, it appeared that he had been under the delusion that his wife was trying to kill him, exclusion of testimony as to what he had said regarding his wife the day before the homicide, is erroneous.</p> <p>3. Trial—Objection—Waiver.</p> <p>It is competent for the district attorney to waive the objection that the questions were leading, and he does so by failing to state’any ground on which he rests his objection before the ruling of the court.</p> <p>3. Homicide—Insanity—Evidence.</p> <p>Where it is asserted that the defendant has been continuously insane from a period of four months before the killing up to the time of the trial, 1 and the examination of the experts is directed to his mental condition at the time they saw him, they are competent, from the conclusion they thus reached and the medical and other facts proved, to give on the trial an opinion as to his sanity or insanity at the time of the homicide.</p> <p>4. Same.</p> <p>, The jury are entitled to the facts on which an insanity expert bases his opinion and, when those facts are the result of his own interviews with the defendant, it is. not only competent, but necessary, that they should be laid before the jury. »</p> <p>6. Same.</p> <p>If the defendant offers evidence tending to prove that he was insane at the time of the homicide, the legal presumption of sanity is rebutted, and the prosecution must prove sanity by preponderance of evidence.</p> <p>6. Same.</p> <p>If the defendant’s evidence creates, in the minds of the jury, a reasonable doubt as to his sanity at the time of killing, the prosecution must remove that doubt by preponderance of evidence.</p>

The facts, so far as material, are stated in the opinion. Neither the Constitution nor the laws of the state have conferred upon the Appellate Division of the Supreme Court power to order a re-argument of an appeal once decided and disposed of by the General Term of the Court of Common Pleas. (Const. N. Y. art. 6, § 2; Code Civ.

<p>State Bank in Hands’on. Receiver — Interest upon Deposits — Demand. While, in the absence of proof or admission of the insolvency of a slate bank, insolvency is not inferable from the mere appointment of a temporary receiver pending the trial of an action instituted by the superintendent of the banking department for the dissolution of the bank so as to excuse a demand in order to make a deposit commence to draw interest, the service of an answer asking, by way of counterclaim; to have the amount of defendant’s deposit set off against the plaintiff’s claim, in an action brought by the temporary receiver upon a promissory note given by a director to make up an impairment of the bank’s capital, is to be treated as a demand and will entitle the defendant to an allowance of interest upon his deposit from the date of such demand.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. It is error to dismiss the complaint on the trial if it appears that, from the evidence produced, different minds' might draw different conclusions.

<p>1. Arbitration—When Settlement of Accounts between the Parties will not be Disturbed. Prior settlements of accounts between the parties to an arbitration, made upon the basis that certain transactions had been closed without loss and which on the hearing were not ashed to be opened by either party, cannot be disturbed by allegations that there are outstanding unliquidated claims asserted by third parties, pending and undetermined at the time of the arbitration, which, if established, would necessarily reduce the amount due to the plaintiff, and the refusal of the arbitrators to hear or consider such allegations is proper.</p> <p>2. Arbitration—Evidence. The mere computation, after the close of the evidence, of a claim submitted to arbitration is not new evidence, and its reception constitutes no ground for setting aside the award.</p>

This action was brought in equity to cancel the satisfaction of a judgment, a general release and the countermand of an execution, executed by the plaintiff; upon the ground that such instruments were obtained from her by fraudulent representations.

The. action was brought upon a .promissory note, against the maker and indorser. The facts, so far as material, are stated in the opinion. The face and back of the instrument upon which this action is brought must be considered together as forming one and the same instrument, which is the contract, by the terms of which the parties are bound, if bound at all.

The nature of the action and the facts, so far as material, are •stated in the opinion. The interest and title of the insured were changed within the express language of the policy issued January 9, 1891, and it thereupon became void, and at the time of the fire on March 31, 1891, was of no binding force or effect whatsoever. ( Walradt v. P. Ins.

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

Appeals from judgments of the General Term of the Supreme Court in-the first judicial department, entered upon orders made February 16, 1894, which modified and, as modified, affirmed judgments in favor of plaintiffs’ intestate entered upon reports of a referee. The original plaintiff, Simon Witmark, died after the appeals were taken to the Court of Appeals, and his administrators were thereupon substituted in his place and stead.

The appellant is a corporation created by special act of the legislature. (Laws of 1862, chap. 359.) The name of the original corporation was changed to the Mew York Produce Exchange by an act passed February 13, 1867, amending the charter, and several other amendatory acts were subsequently passed.

<p>Benevolent Insurance Association—By-laws—Meaning of Dis.ability to Follow “ Usual or Some Other Occupation.” Where the "by-laws of a domestic insurance association, organized under the act for incorporating charitable, benevolent and beneficiary associations, entitle a member to payment of a benefit when permanently disabled by reason of ■disease or accident, from following his “usual or some other occupation,” 'the words “some other occupation ” are not tobe construed as meaning that the member must be disabled from following any other occupation, but rather as referring to an occupation requiring substantially the same physical and mental ability as that in which he was usually engaged.</p>

Supreme Court in the second judicial department, entered upon an order made February 13, .1894, which affirmed a judgment in favor of plaintiff entered upon the report of a referee. The action was brought to. recover a balance alleged by the plaintiff to be due to him from the defendant, pursuant to an agreement between them relating to his compensation while in the latter’s employment.

Cross-appeals from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made February 5, 1894, which modified, and as modified affirmed a judgment in favor of plaintiffs, entered upon a decision of the court on trial at Special Term. The nature of the action and the facts, so far as material, are stated in the tipinion.

The plaintiffs had agreed to sell and convey to the defend, ant certain premises in Westchester county and the defendant refused to complete the contract for the purchase on his part, upon the ground that the plaintiffs had not a good title. The premises were originally owned by Cornelius H. Tallman, who acquired them in 1864 and whose title is conceded to have been good.

This action was brought in a District Court in the city of Dew York to recover of the defendant a penalty of $25 for neglect on his part to obey an order dated May 21, 1892, purporting to have been made under the authority of the. board of commissioners of the fire department of the- city of Dew York, requiring him, within five days from the service of the order, to build a wall of stone, brick or other fire-proof material, not more than eighteen feet in height, around the…

On the 11th of August, 1863, Joseph Cudlipp died seized of a tract of land in the town of Morrisania, consisting of about ten acres, which, by his will dated June 20th, 1862, and admitted to probate September 22nd, 1863, he devised, as follows, viz.: “ Item.

<p>1. Slander—Pleading—Justification. The rule of pleading, that the justification in an action of slander shall be as broad as the charge, does not mean that an answer in justification must be broad enough to embrace every slanderous charge stated in the complaint. When several separate and distinct things are charged, the defendant may justify as to one, though he fail as to the others.</p> <p>2. Answer—Justification of Charge of Keeping a Disorderly House. When a complaint for slander alleges, among other distinct charges uttered by the defendant, the separate charge that the plaintiff kept a disorderly house, an answer which undertakes to justify that charge is sufficient for that purpose when it contains all the material facts which it would be necessary to allege- in an indictment for that offense.</p> <p>3. Evidence — Proof of Specific Acts in Support of Justification of Charge of Keeping a Disorderly House. When the answer to the complaint of a woman for slander, alleging, among other distinct and separate charges, that the defendant had charged her with keeping a disorderly house, sets up a justification to that charge, the defendant is entitled to give, in support of such justification, proof of specific acts of lewdness or immorality on the part of the plaintiff, tending to show that her house was in fact disorderly; and this is so, although the answer may not be sufficient to admit proof of specific acts in mitigation, under section 536 of the Code of Civil Procedure.</p>

This action was brought upon a policy of insurance issued by the defendant to the plaintiff, dated January 28, 1892. It was issued by Harry H. Falkner, who was the defendant’s agent at Le Roy, 1ST. Y., and authorized to solicit insurance, issue and cancel policies, receive premiums, remit the same to the company, make surveys and determine how much insurance was to be placed upon property to be insured.

<p>Fire Insurance — Statement of Origin of Fire not Conclusive upon Insured. When a policy of fire insurance stipulates that the insured shall, in case of loss, render to the insurer a sworn statement of his “knowledge and belief ” as to the origin of the fire, and the insured renders a statement of what he had been .“informed" was the origin of the fire, and no question of surprise is raised on the trial, he is not estopped or precluded from showing that in fact the fire originated from some other cause.</p>

This was an action to recover a balance alleged to be due for work, labor and services performed by the plaintiff and his deceased co-partner for the defendant between June 1 and ^November 1, 1890. The answer contains a general denial in part and pleads a breach of contract both as a defense and counterclaim. The facts, so far as material, are stated in the opinion.

<p>1. Public Officers—Liability for Non-performance of a Ministerial Duty. The negligent omission of a public officer to perform a ministerial duty, or an improper discharge thereof, renders him liable to be enjoined and to respond in damages to the injured party.</p> <p>2. Superintendent of Public Works — Improper Maintenance of Flush Boards on Canal Feeder Dam—Equitable Relief. In an action brought by an owner of lands on Owasco lake, which is a feeder of the Erie canal, to enjoin the superintendent of public works of the state from maintaining flush boards, during the close of navigation of the canal, upon a dam in the outlet of the lake, and to recover damages from him individually, it was found that it was the defendant’s official duty at the close of navigation of the Erie canal in each year, to remove the flush boards, so as to allow the waters of the lake to flow unobstructed over the dam until the freshets of the next spring should have passed ; that the defendant wholly neglected and wrongfully refused to perform his official duty, although often requested by the plaintiff so to do, and that he permitted the flush boards to remain closed upon the dam during the years 1884 to 1888, including the time of the spring freshets and at other times when the waters were running over the flush boards, thereby causing the waters of the lake to overflow the lands of the plaintiff and inflicting upon him damages to a large amount. Held, that, in view of the findings in the case, sustained by the evidence, the remedy open to plaintiff to seek compensation in the usual way by proceedings in the Board of Claims‘was. manifestly inadequate, and that he was entitled to equitable relief.</p> <p>3. Action not Babbed by Filing Claim against the State. It appeared that the plaintiff had filed a claim against the state, which included a portion of the damages covered by the action in equity, but the claim had been dismissed by reason of the non-appearance of the claimant. Held, that the filing of the claim was no bar to the action.</p> <p>4. Owasco Lake State Dam—Laws on 1857, Ci-iap. 534—Addi-tional Appbopbiation on Wateb by the State—Height on Flush Boabds. It was found, in the above action, that in 1868 a dain which then stood upon the site of the' dam in suit, was appropriated by and became the property of the state, by proceedings taken for the purpose, an act having been passed in 1857 (Chap. 534) which authorized the canal commissioners to appropriate the dam, with the further right to increase its height, to draw water therefrom subject to certain hydraulic rights, and to take such lands, water, water rights and privileges as they deemed necessary to effectuate and complete the improvement, such appropriations to be made in the manner provided by law. It was also found that the canal commissioners maintained on the crest of the dam flush boards eighteen inches wide until 1874, or thereabouts, when a new dam was built and flush boards two feet wide were put on and used by the canal commissioners, and, that until 1884 (in which year the defendant was. appointed superintendent of public works) the flush boards were not kept up permanently, but were removed in times of freshet and high water. A judgment was rendered, enjoining the defendant and his successors in office from placing or maintaining upon the crest of the dam flush boards exceeding one and one-half feet in width at any season of the year when the waters of the outlet should rise to exceed the height of one and one-half feet above the top of the dam, as it stood in 1868, at the time of its appropriation by the state. Held, that the action of the canal commissioners and the legislation in the premises might be regarded as an additional appropriation of the waters of the lake, in or about 1874, under the-act of 1857 and subsequent legislation, to the extent of increasing the width of the flush boards to two feet; that it was competent for the state to make-</p> <p>such additional appropriation under the act of 1857, subject to the right of riparian owners to be compensated by the state for all damages suffered by still further raising the waters of the lake; and, hence, that the judgment should be modified so as to permit flush boards two feet in width, and so as to limit the height of the water of the outlet at any season of the year to two feet above the top of the dam as it stood in 1868, when appropriated by the state.</p>

In November, 1892, the plaintiff commenced an action against the defendant in a Justice’s Court before Willis G. Clark, Esq., a justice of the peace in and for the town of Concord, Erie county, 1ST. Y., to recover the penalty provided by section 105 of chapter 568 of the Laws of 1890, for the defendant’s neglect or refusal to remove an alleged encroachment upon one of the highways of that town.

<p>Stockbroker—Relation .op Broker and Customer—Account in Name op and Conducted by Third Party. In an action against a stockbroker to compel him to account, as the plaintiff’s broker, for a loss occasioned by the dishonesty of a third person, it is a deduction of law that the defendant was not acting as the plaintiff's broker in the transactions in suit, where the facts found in favor of the plaintiff show that the transactions were had (without personal knowledge by the defendant, or facts to charge him with notice of, the plaintiff’s connection therewith) through directions given by and under an account in the name of such third person, who acted ostensibly as a clerk of the defendant at his office, but who was not in his direct employ, being employed and paid as an assistant by an employee of the defendant, and who was enabled by the plaintiff’s own acts to conduct the account secretly between the plaintiff and himself, so far as the defendant was concerned; and where, giving the plaintiff the benefit of all that can be fairly implied from such third person’s connection with the defendant’s business, the facts do not warrant the assumption that such person was authorized by the defendant to conduct the secret stock transactions of the plaintiff in his own name ,and in the manner pursued, hut do show that he acted as the plaintiff’s agent therein.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The judgment appealed from subverts the will of Samuel Wetmore, in effect abrogates the perfectly legal provisions made by him for the support of his son William B., and displaces the trustee, Sarah Taylor Wetmore, while at the same time adjudging that there is no ground for her removal.

The nature of the action and the facts, so far as material, are stated in the opinion. Defendant is not liable as an indorser. (1 Daniel on Neg.

<p>1. Transfer Tax—Method of Procedure. The method of procedure, in a proceeding for the ascertainment and determination of a transfer or inheritance tax, is controlled by the statute on the subject in force at the time of the institution of the proceeding, although the tax itself and the rights of the parties are controlled by an earlier statute.</p> <p>3. Basis of Tax—Value of Estate at Time of Transfer of Title. The transfer or inheritance tax is not a tax upon property, but upon the right of succession, and, hence, the true test of value by which the tax is to be measured is the value of the estate at the time of the transfer of title, and not its value at the time of the transfer of possession.</p> <p>3. Estate in Remainder—Time op Transfer of Title. When a devise or bequest of a remainder works a vested, although defeasible, interest in the remainderman on the death of the testator, notwithstanding possession does not pass until the death of the life tenant, the transfer of title takes place at the death of the testator, and, in ascertaining the value ■ of the estate passing to the remainderman, for the purpose of taxation under the Transfer or Inheritance Tax Act of 1885 (Chap. 483), it must be appraised as of the time of the death of the testator, when the title passed, and not as of the time of the death of the life tenant, when the possession passed.</p> <p>In re Seaman, 147 1ST. Y. 69, followed.</p> <p>4. Time of Accruing of Tax on Remainder—Interest. If the person to whom property passes in remainder, under the will of a testator who died while the Transfer or Inheritance Tax Act of 1885 (Chap. 483) was ii force, and so liable to taxation under that act, cannot be known untib the death of the life tenant (as is the case where a devise or bequest is to one for life, with remainder over to the children of the life tenant who may be living at his d ecease), the tax on the estate transferred to the remainderman does not accrue until the death of the life tenant, and interest upon the tax is chargeable only from that time.</p> <p>5. Appeal from Portion of Determination —• Statutory Requirement of Statement of Grounds of Appeal. Only the parts of a judgment or decree which are appealed from can be reviewed; and where a statute requires the grounds of the appeal to be stated (as does the Taxable Transfer Act of 1892, chap. 399, § 13, in the case of an appeal to the surrogate from the appraisement or assessment and determination of a tax), none except those specified in the notice of appeal can be considered, and the proceedings cannot be interfered with or disturbed in other respects.</p>

This action was brought to foreclose a mechanics’ lien. The facts, so far as material, are stated in the opinion. The facts found by the referee support his legal conclusion that the plaintiffs are entitled to a lien for the amount of' their claim against the interest of the defendant Coon in the premises described in in the complaint, and the reversal of liis judgment was error.

The nature of the action and the facts, so far as material, are stated in the opinion. Plaintiff’s notice of claim does not comply with the provisions of defendant’s charter.

<p>Evidence—Homicide—Photographs.</p> <p>Photographs of the premises where the homicide took place and of certain articles of clothing, are admissible upon the trial of an indictment for a homicide.</p>

<p>Motion for re-argument.</p>