Volume 35 — New York Miscellaneous Reports

<p>Action to foreclose mechanics’ liens.</p>

<p>Corporation — Public policy condemns a directors’ agreement to wind up an insolvent fire insurance company without application to the court — Agreement not enforcible in equity by the other party having notice of insolvency.</p> <p>Where the board of directors of an insolvent fire insurance company having creditors passes a resolution to reinsure its risks, liquidate its affairs, or sell a majority of its stock, and thereafter accepts a proposition from another corporation to buy a majority of the stock and liquidate the affairs, the agreement is void as against public policy as a scheme to annihilate the fire insurance company without dissolution proceedings as required in such case by the Insurance Law (L. 1892, ch. 690, § 41).</p> <p>Equity, therefore, will not assist the purchasing corporation, having knowledge of the impairment of the capital and of the existence of outstanding fire losses of its vendor, to recover of a mere stockholder thereof, who accepted and was paid its offer to buy his stock, tile payment, upon the ground that the vendor’s statement to its stockholders of its financial condition and of the fact that all its risks had been reinsured, relied upon by the purchaser, was false and that the stock was either wholly worthless or was worth much less than the purchaser paid for it.</p>

<p>Legacy — Lapse — Specific legacy upheld by intention as derived from the whole will.</p> <p>A specific legacy fails and the property bequeathed falls into the residuum where the testatrix makes the particular dispositions dependent on a memorandum to be made by her of even date with her will but which memorandum she in fact never made.</p> <p>Bequests, in amounts named, “of the following stocks and bonds now held by me (the testatrix),” enumerating them, and bequests of the sum of .......... dollars, par value of certain capital stock, enumerating it, are not sufficient in form to make the legacies specific, but will be so construed where, in other parts of her will, the testatrix refers to the stocks and bonds in the plural, guards them against inheritance taxes, prohibits her executors from selling them, and declares that, if sold in her lifetime, the legatees shall have in money what the securities would have brought at the time of her death.</p>

<p>Appeal from affirmance by the General Term of the City Court of the city of New York of a judgment, entered upon the dismissal of the complaint. •</p> <p>In 1892, the plaintiff, an English actress, came to this country under a contract with the defendant Mayer, a theatrical manager, for a tour during the theatrical season of 1892-93. After a time and mutual discussion, said parties agreed to cancel their contract upon a settlement between themselves. One of the topics discussed and one of the elements of the settlement was a claim made by Mrs. Bernard-Beere that she was under a contract with Mr. Charles Wyndham to produce in this country during that season a certain play named the “ Fringe of Society ”, belonging to said Wyndham, for at least fifty performances at a certain percentage of the gross receipts to be paid to him, a'nd for Such performances as did not take place twenty-five dollars per night, and she claimed that inasmuch as her contract with Mayer was to he abrogated and she could not present the fifty performances of that play she would be liable to Wyndham in the sum of $1,250, and demanded that that sum be paid to her to liquidate Wyndham’s claim against her, in addition to the other tax terms personal to herself. As the result of such negotiations, on the 8th day of December, 1892, the following paper was executed:</p> <p>“ Whereas, Mrs. Bernard-Beere claims that she may be or become liable to Charles Wyndham in the gum of Twenty-five dollars a performance for fifty performances of the play entitled ‘ The Fringe of Society ’ to be given in a tour of America, during the season of 1892 and 1893, on a paper writing of which the annexed is a copy. And Whereas as a condition for the cancellation of an agreement between Marcus R. Mayer and the said Mrs. Beere, she requires that she be indemnified and held harmless against and from the payment of the said amount due or any other amount which may become due to the said Charles Wyndham thereunder,</p> <p>“ Row, in consideration of the premises and of the sum of one dollar to us in hand paid by the said Mrs. Bernard-Beere, the receipt whereof is hereby acknowledged, we do hereby jointly and severally promise and agree tó and with the said Mrs. ■ BernardBeere, that we will and hereby do indemnify and hold her harmless against and from the payment of any sum of money to the said Charles Wyndham, under or by reason of said contract.”</p> <p>This was signed, sealed and acknowledged by all the defendants. Attached thereto was the following, alluded to in the first paragraph as “ a paper writing of which the annexed is a copy ”— “ Charles Wyndham: I agree to take the Fringe of Society for a tour in America this year of 1892-and 1893. I will pay three per cent of gross receipts for each performance — weekly settlement. I guarantee you at least fifty performances during said tour, or failing that number, will pay you three per cent of gross receipts for such performances as take place, and for the balance at the rate of twenty-five dollars per performance. I will not part with this right to the piece without your permission or being understood that it is reserved for me. October 11th, 1892.” The complaint alleged that “thereafter and on the 7th day of December, 1894, under and by reason of the said contract referred to in this said bond, this plaintiff was compelled to and did pay to the said Charles Wyndham $1,250, had demanded the repayment of said sum from the defendants, who had refused payment, and it demanded judgment therefor.”</p> <p>To sustain the issues, plaintiff offered testimony tending to show the facts and circumstances surrounding the making of this bond of indemnity, the existence of a contract between the plaintiff and said Wyndham upon the precise terms set forth in the “ paper writing ” attached to the bond, the payment to Wyndham by plaintiff of $1,250 in accordance with the terms of their contract and the facts and circumstances of that payment.</p> <p>All of this testimony was excluded.</p> <p>The complaint was dismissed and the judgment entered thereon was affirmed on appeal by the General Term of the City Court.</p>

<p>A covenant to surrender is real — Against assigning a lease, when broken — Review of judgment by Appellate Term.</p> <p>A covenant to surrender premises for a consideration, if the landlord sells during the term,.is a covenant real and is enforcible by an assignee thereof; and it is not a defense to his action for the consideration of surrender that the defendant landlord failed to consummate the sale.</p> <p>A covenant against assigning a lease is not broken by an assignment thereof unless the landlord re-enters.</p> <p>A judgment of affirmance made by the General Term of the City Court of the city of New York is properly brought to the Appellate Term for review by an appeal from the judgment only, as no appeal lies from the order of affirmance, the same being interlocutory.</p> <p>Dierig v. Callahan, 34 Mise. Rep. 21S, reversed.</p>

<p>Partnership — When one partner may sue another at law — Contract — Mutuality — Offer and acceptance.</p> <p>One partner may sue another at law where the cause of action does not require an accounting of their joint transactions.</p> <p>A contract which has not the element of mutuality is void.</p> <p>An offer may be withdrawn at any time before the other party has acted upon it.</p>

Action to recover the agreed price of goods sold and delivered, the defense being that, according to the terms of purchase, the defendant was privileged to return such of the goods as were not resold by him, and to that extent to rescind his purchase. The jury found for the plaintiff in the amount sued for.

<p>Evidence — Harmless error — Competency of experts.</p> <p>Error, in admitting harmless parol evidence in regard to a written contract, is not a ground for reversal. •</p> <p>The testimony of other persons, in regard to the competency of an expert, is admissible, and the court is not confined in determining competency to the expert’s own testimony.</p>

<p>Replevin — Failure to prove title —Judgment in, not supportable as one for a conversion.</p> <p>The plaintiff cannot succeed in replevin unless he proves title to the specific property which he seeks to recover, and where he fails in this respect he cannot maintain his action by proving a claim for the value of the property, as such claim is in distinct repudiation of any continued claim to the property itself.</p> <p>A judgment must be secundum allegata et probata and hence a judgment in replevin for the plaintiff cannot, by any tacit consent of the defendants, be supported as one for a conversion.</p>

Action by the plaintiff as assignee of one Morris Rosier to recover of the defendant $204.93, the proportionate amount of loss and damage to Resler’s stock of goods caused by a fire which occurred on July 28, 1900. The plaintiff seeks to recover on the ground that, under the contract stated in the opinion, the defendant assumed a direct liability to the insured.

<p>Conversion — Demand, when unnecessary.</p> <p>Where the owner of a building orders materials, which have been sold and delivered by third parties to his builder upon an antecedent condition of payment which the builder has not performed, to be affixed to the building and pays for the work, he has exercised an act of dominion over materials not lawfully- in his possession which makes him liable in conversion to the owners of the materials without demand upon their part.</p>

<p>Appeal from final order, made by the justice of the Municipal Court of the city of Hew York, for the seventh district, for dismissal of summary proceedings brought to remove the respondents upon the ground of their holding over after the expiration of the term of their tenancy.</p>

<p>Elevated railroads — Consent of abutting owner as an estoppel — Damages where only a distinct part of a hotel fronted on the street where the railroad ran.</p> <p>An abutting owner who consents to the construction of an elevated railroad in the street in front of his premises cannot subsequently recover of it damages for its operation.</p> <p>Where a hotel owned and operated under a single management consists in part of a distinct building, fronting on a street in which an elevated railroad is operated, conveyed separately, and having its original walls standing but perforated to give access to other parts of the hotel, damages may properly be awarded the distinct building for the injury to its easements which resulted from the operation of the railroad in front of it, but none can be awarded for that remaining part of the hotel, which did not front on the street where the railroad ran.</p>

<p>Motion for an injunction pendente life.</p>

<p>Municipal Court of the city of New York — Review of refusal to remove action to another district — Mandamus lies where justice refuses to receive motion papers.</p> <p>An alleged wrongful refusal of a justice of the Municipal Court of the city of New York to order a removal of an action to another district of the court should be reviewed by appeal and a writ of mandamus will not lie against the justice.</p> <p>Where, however, the justice refused to receive or file motion papers, for a rehearing of the motion for a removal, which the defendant deemed essential to a proper review of the adverse decision, the court ordered .a peremptory writ to issue compelling the justice to file the papers to the end that they might be made a part of the record.</p>

Objections to the confirmation of the report of the commissioners of assessment. • ' The facts sufficiently appear in the opinion of the court.

Objections to the confirmation of the report of the commissioners of assessments. The facts sufficiently appear in the opinion of the court.

<p>Trustee’s compulsory accounting — Statute of Limitations — Parties.</p> <p>The Statute of Limitations does not begin to run against an action, brought by a substituted testamentary trustee against the representatives of a deceased trustee to compel an accounting and procure a recovery of the trust fund, until there has been a denial or repudiation of the trust.</p> <p>Remaindermen are not necessary parties to such an action unless it requires the determination of their rights as between themselves or as between them and the trustee.</p>

Objections to the confirmation of the report of the commissioners of assessment. The facts sufficiently appear in the opinion of the court.

<p>Corporation — Tort against not actionable by a minority stockholder as an individual — Parties — Demurrer to complaint.</p> <p>A minority stockholder cannot as an individual maintain an action for damages his stock sustained by the defendants’ tortious acts in improperly procuring and forcing (with the consent of a majority of the stockholders) the foreclosure of a mortgage upon the property of his corporation to the end that the defendants might gain control of it — the foreclosure resulting in greatly reducing, if not annihilating, the value of the plaintiff’s stock — as the primary injury has been done to the corporation foreclosed, the injury to its stockholders is derivative and suffered under it, and the plaintiff’s injury is not peculiar to him but is shared by all the other stockholders.</p> <p>The primary right to sue is in the corporation foreclosed and, where it refuses to sue, it is a necessary party to an action brought on behalf of all others similarly situated to procure the relief which the corporation refuses to seek.</p>

<p>Amendment — Foreign joint-stock association sued as a partnership — Mistrial—Code C. P., § 1919.</p> <p>A complaint will not be dismissed as failing to state facts suffi- , cient to constitute a cause of action merely because the plaint!if has sued a foreign joint-stock association as a partnership, the objection being taken in the first instance upon the trial.</p> <p>The court, in the interests of justice and in the absence of proof of the foreign law, will treat the proceeding had as a mistrial, will assume that the proper officer of the association was served, that his official designation was omitted by the plaintiff in the title of the ' action, and will permit the latter to amend, on terms, so as to bring , the matter within Code O. P., § 1919, permitting an action against the president or treasurer of a joint-stock association.</p>

<p>'•Negligence — Failure to provide a freight elevator in New York city with trap-doors and a substantial guard or gate — L. 1892, ch. 275, § 28.</p> <p>The act creating a department of buildings in the city of New York (L. 1892, ch. 275, § 28), and requiring any hoistway or freight elevator or well-hole, not of fire proof construction, to be protected by “ a substantial guard or gate and with such good and sufficient trapdoors with which to close the same,” as may be directed and approved by the city superintendent of buildings, also declares that trapdoors need not be closed until the close of business, and hence, where a person is injured during business hours by falling down the elevator shaft of premises because the guard chain of the shaft broke when he leaned against it, he cannot recover damages of the owners of the premises upon the ground that they had failed to provide the elevator shaft with the statutory trap-doors as the presence of open trap-doors would not have prevented the accident.</p> <p>An iron chain firmly fixed in the wall of an elevator shaft at one of its ends and hooked at the other end into an eye-bolt or staple set into the opposite wall, and apparently in proper condition, is a sufficient compliance upon the part of the owners of the building with the said statute requiring “ a substantial guard or gate ” for the shaft.</p>

<p>Actions to recover damages for breach of contract. Motion to consolidate the actions.</p>

<p>Equity — Will compel a transferee to reconvey property acquired for a void consideration.</p> <p>Where the sole consideration for the conveyance of real and personal property is a promise which the transferee has not kept, equity will compel the transferee to reconvey even though the promise was void.</p>

<p>Action to impress a trust, in favor of the plaintiff, upon all the property of the defendant.</p>

This action is brought to compel the defendant to move one of its buildings, so far as it is erected, and to restrain it from erecting the same, upon the ground that said building encroaches upon Chestnut street or South Crouse avenue, which plaintiffs are entitled to have kept open and maintained as a public street or highway across defendant’s premises, and over the spot occupied by said building, and that the same interferes with the rights of plaintiffs in said alleged…

Demurrer by plaintiffs to counterclaim set forth in defendant’s answer, upon the ground especially, amongst others stated, that said counterclaim is not of a character permissible in this action.

<p>Demurrers to complaint.</p>

Motion by the receiver of the above estate to confirm a referee’s report, and to have it determined that the claimant is only an unpreferred creditor for the sum of $1,772.14, instead of a person having a lien upon the assets in the hands of the receiver, as it is alleged by said claimant that he should have.

<p>Action' to recover upon a note made by defendant.</p>

Motion to compel plaintiff to furnish defendant with a bill of particulars setting forth the particular respects in which defendant is claimed to have been negligent.

One Brown, claiming to be in the position of a judgment creditor of the defendant Belden, applies, under section 452, Code, to be joined as-a party defendant in this action which is brought by plaintiff, as trustee in bankruptcy of said Belden, to reach an alleged surplus as it accrues in the income of a trust fund created for his benefit under the will of his father.

<p>This action was brought to recover damages for the alleged negligence of defendant, resulting in the death of plaintiffs’ intestate. The plaintiffs were nonsuited at the Trial Term, which decision was reversed by the Appellate Division. Defendant then appealed from the judgment entered upon the latter decision to the Court of Appeals, giving a stipulation for judgment absolute. The latter court affirmed the decision of the Appellate Division, ordering judgment absolute for plaintiffs, with costs. In accordance with such decision and judgment plaintiffs had an assessment of their damages at the Trial Term, being allowed $5^000.' They have taxed as part of their costs in this action for and on account of such assessment of damages a trial fee and certain clerics’, jurors’ and witnesses’ fees. This motion is made by defendant for a retaxation and disallowance of all of said items.</p>

<p>Estoppel — Amendment reducing the withdrawal value of shares in a mutual association.</p> <p>A shareholder in a mutual savings and loan association who, knowing of an amendment to its- articles which may have reduced the withdrawal value of his shares below their actual value, stands by for two years and without protest sees other members pay their dues on the new basis, cannot, nor can his assignee, afterwards claim against the association, upon withdrawal therefrom, any greater sum than the amendment entitled him to. • - -</p>

<p>Actiox to determine the title to the office -of school commissioner in the city of Troy.</p>

<p>Executor—'When not chargeable with his attorney’s concealed debt to the testatrix.</p> <p>An executor is not chargeable upon a judicial settlement of his accounts with the amount of his attorney’s note to the testatrix (lost to the estate) where the executor had no actual notice of the existence of the indebtedness, nor any constructive notice except upon the legal theory that the attorney’s knowledge was his, and particularly where the attorney was shown to have been guilty of numerous other improprieties in the case.</p>

<p>Appeal from a judgment for the plaintiff, entered upon a verdict, and from an order denying the defendants "a new trial.</p> <p>One Max Spiro contracted with the defendants to serve for one year as foreman at twenty dollars per week, and the contract also contained the following provision: “If your services during the term of this agreement are satisfactory to us, you shall receive at the expiration of this agreement, a bonus equivalent to the sum of five dollars for each -and every week during the term of this agreement, reserving the right to discharge you and terminating this agreement, before its expiration, at any time we think your services are not up to our expectations, in which case you shall not be entitled to any part of the bonus aforesaid mentioned.” Max Spiro worked for one year and was paid his salary, but the defendants refused to pay him .the bonus. Action was brought by the plaintiff, his assignee.</p>

<p>Appeal from a judgment upon a verdict and from an order denying a new trial. Action for damages for personal injuries sustained from the alleged negligence of the defendant.</p>

<p>Services — Improper arbitrary discharge.</p> <p>An employer cannot arbitrarily discharge an employee serving under a contract providing that the employer may discharge should he “ find ” the employee unfaithful or improper in the performance of his duties or in any manner inefficient therein, as under such a provision a discharge can be made only in case the employer, for good and sufficient reason, finds the employee unfaithful, improper in performance or inefficient.</p>

<p>Appeal from order of the Special Term of the City Court of the city of New York, denying a motion made by the defendant to remove to said court an action commenced in the Municipal Court of the city of New York and consolidate it with this action.</p>

'Appeal from a judgment entered upon a verdict in favor of the plaintiffs, and from an order denying a motion for a new trial. Action for work, labor and services alleged to have been done and rendered for the defendant upon employment by its treasurer.

<p>Practice — Failure to folio papers — General Rules of Practice No. 19.</p> <p>Where an affidavit and order extending the defendant’s time to plead are not folioed, the plaintiff has a right to return them within twenty-four hours.</p>

The action was by the plaintiff, a street sweeper, to recover for personal injuries caused by being run over by a wagon, or cart, of the defendant.

<p>Costs — Against defeated claimant of a foreclosure surplus.</p> <p>Where a second mortgage, under which the mortgagee named therein claims a surplus resulting from the foreclosure of a prior mortgage, is found by a referee in the surplus money proceeding to be fraudulent as to judgment creditors of the mortgagor, and the said surplus is insufficient to pay their claims, the second mortgagee will be charged personally with the costs of the proceeding.</p>

<p>Plaintiff is commissioner of jurors and a taxpayer in Kings county and here seeks to enjoin the defendants, as justices of the Appellate Division, from appointing a commissioner of jurors in Kings county under the provisions of chapter 602 of the Laws of 1901, challenging the constitutionality of the act in question.</p> <p>This motion is to continue pendente lite an injunction heretofore granted herein.</p>

<p>Unincorporated association — Members not partners nor agents.</p> <p>The rule that one partner is to be deemed the agent of another partner where he renews a written lease of firm real estate for a fixed term and rent does not apply to a case where a mere member of an unincorporated tennis club renews, in his own name and for his own benefit, a lease of a tennis ground which the club had held as tenant at sufferance without payment of rent, as members of such an association are not partners and there can be no agency in the absence of express proof of it</p>

<p>Goods sold — Failure to prove delivery — ¡Remedy of vendor hy action for the price.</p> <p>An action for goods sold and delivered must fail as to the allegation of delivery where the proof is that, under orders from the vendee, a common carrier refused a stipulated delivery attempted to he made-to it hy the vendor and that thereupon the vendor took the goods away and kept them.</p> <p>Senible, that vendor should have sued for the price under a contract of purchase and sale.</p>

<p>Principal and agent — The latter cannot sue in equity for an accounting of commissions — Complaint, when dismissed.</p> <p>An agent cannot maintain an equitable action against his principal for an accounting of commissions alleged to have been earned by him but should sue at law.</p> <p>Where he does not ask that his equitable action be retained by the court for the purposes of relief at law, it must be dismissed, but without prejudice to an action at law.</p>

<p>Trust — Void accumulation — Separable from scheme of distribution_</p> <p>Disposition of accumulation.</p> <p>Personal property can be accumulated only during the minority of beneficiaries (L. 1897, chap. 417, § 4), and therefore a testamentary direction to the trustees of a residuary' estate that they shall pay the testator’s widow a fixed sum for life from the income, accumulate any surplus income, and add it to the principal of the residuary estate, is unlawful.</p> <p>The unlawful accumulation does not, however, affect the validity of the life provision for the widow, nor the validity of prior, distinct and separable trusts for children of the testator, to which trusts the entire residuary estate is directed to pass in equal shares upon the widow’s death.</p> <p>The accumulated income, and any excess of income accruing in the future, will pass to the last mentioned trustees as the persons presumptively entitled to the next eventual estate.</p>

<p>Assignment for creditors — Notice to them on discharge of deceased assignee’s surety — L. 1877, ch. 466, §§ 10, 11, 12, 13, 20, subd. 5.</p> <p>Where a general assignee dies and a compulsory proceeding is taken by certain of the creditors to have his personal representatives render a final accounting of the trust and this results in a direction by the court that the representatives account for the assets, that the assets be transferred by them to a substituted assignee, and that upon such transfer the surety of the deceased assignee be discharged, all creditors interested in the trust must be cited as otherwise the surety cannot lawfully procure the discharge to which he is entitled.</p>

<p>Habeas Cobpus.</p>

<p>Remainder — When vested by agreement to divide — Executed agreement not to be repudiated — Trust.</p> <p>Semble, where in a trust agreement it is provided that upon the death of the donor of a trust in' personalty for whose life benefit to a fixed extent the trust was created, the corpus shall be divided between persons named in the instrument of trust, there is a vested remainder in such fund in said persons where they are certain and in being at the time when the agreement takes effect.</p> <p>Where the donor, besides his inalienable life interest or annuity, has or may have alienable reversionary interests in the corpus as donor, and agrees that a substituted trustee may distribute the corpus among the parties entitled in remainder — his annuity having been provided for in another manner — his reversionary interests, if any, pass, and neither he nor his executor will be permitted by equity to repudiate the agreement and recover of the substituted trustee the value of the corpus divided and distributed by it.</p>

<p>Equity — Action to charge a judgment, against a corporation for a tort, upon a person as being in fact the corporation — Demurrer to complaint.</p> <p>Persons who have recovered in another court but have failed to collect a judgment against a corporation based upon its negligence in managing its towboat cannot in equity charge the judgment upon one whom they allege was “ the company ” at the time of the tort by virtue of his being the sole owner and who as they allege defended the action by an attorney of his owh selection.</p> <p>Semble, that an action at law might be brought against the present defendant for the same negligence and that upon that question, as well as upon the question of damages, the judgment in the other court could be used as conclusive evidence against the defendant upon proof of his interest and participation in the other action.</p>

<p>Application for a writ of mandamus.</p>

<p>Savings bank — Void payment to foreign administrator — Notice — inquiry.</p> <p>A domestic savings bank is not protected in paying a deposit to a deceased depositor’s foreign administrator upon bis production of a certified copy of Ms letters where a domestic administrator of the depositor had already been appointed, in the county where the savings bank was located, five months before the foreign administrator’s appointment, as the presentation of the foreign letters put the bank on inquiry and required it to search the records of its own county at least for the appointment of a domestic administrator.</p>

’Appeal by the defendant from a judgment recovered by the plaintiff upon the verdict of a jury, and from an order denying the defendant’s motion for a new trial.

Appeal by the plaintiff from an order granting the defendant’s motion for a new trial upon the ground of newly-discovered evideuce, without any terms whatsoever, and with ten dollars costs to the defendant against the plaintiff.

<p>Appeal from an order retaxing costs.</p>

<p>Negligence — A child of four years run over by a horse car while being led by a child of eight years.</p> <p>In an action, by an infant aged four years, to recover for injuries received by being run over in the daytime by a horse-car of the defendant, it appeared that he was being led by his sister aged eight years, that it was twelve and one-half feet from their sidewalk to the rail where the accident happened, that when the children started to cross "the street the car was distant from twenty-five to one hundred feet, that its horses were going very fast down an incline, that the driver was looking back into the car and had not his hand on the brake, that the plaintiff became confused, broke away from his sister, got on the track and was run over.</p> <p>Held, that it was erroneous to dismiss the complaint. . . _ That the driver was clearly negligent, and that the questions whether the girl of eight years was sui juris, and, if so, whether she was negligent, should have been submitted to the jury.</p>

<p>Pleading — Action by assignee for wrongful discharge — Beal party in interest — Non-residence of assignor — Action for wages distinguished— Beply to counterclaim for assignor’s failure to account. i</p> <p>Where the plaintiff sues as assignee for value of a claim for damages for wrongful discharge by a foreign corporation and the assignment is denied by the corporation’s answer, further allegations thereof that the plaintiff is not the real party in interest are not good as a separate defense as the plaintiff is legally entitled to the claim and its ownership can be fully investigated under thevdenial of an assignment.</p> <p>An allegation that the plaintiff’s assignor is not a resident of the State of New York does not constitute a defense, since the plaintiff, as a resident, is entitled to sue in our courts although his assignor might not be competent to sue.</p> <p>An allegation that another party is suing the foreign corporation as assignee of the same assignor in order to recover for the services rendered under the same contract of employment is not good as a separate defense, as an action for a wrongful discharge and one for wages earned before dismissal are independent causes of action.</p> <p>Where the defendant’s counterclaim, that the plaintiff’s assignor has failed to account for a part of certain moneys entrusted to him by the defendant for its benefit, is denied by the reply, the plaintiff may go farther and allege and prove affirmatively and as a separate defense to the counterclaim that his assignor has fully accounted for all the moneys thus entrusted to him.</p>

<p>Appeal from an order in favor of the defendant, interpleading and substituting one Simon Sindeband in the place and stead of the said defendant in the above-entitled action.</p>

Appeal by the plaintiffs from an order of the Trial Term for short causes, ordering them to pay the defendant forty-five dollars costs. The attorneys had stipulated that the plaintiffs should move to put the case on the short cause calendar, the defendant to waive all costs resulting from the denial of the motion or from the restoration of the cause to the general calendar, if not tried within the time allowed by the court.

<p>Application for a peremptory writ of mandamus to require the mayor of the city of Kew York to appoint four city magistrates.</p>

Application, under section 2471a of the Code of Civil Procedure, for an order compelling delivery of books and papers belonging to a public office. The facts appear in the opinion.

<p>Motion for a new trial. '•</p>

<p>Common carrier — Failure to deliver — Measure of damages.</p> <p>Where a common carrier fails to deliver summer goods within a reasonable time it is liable for the breach, and the consignees may recover the full value of the goods where they refuse to call for them when notified by the carrier to do so, the season for sale being over, and the carrier subsequently permits the goods to become worthless from an apparently negligent exposure to moisture.</p>

<p>-Injunction — Bights as between a landlord who desires to improve premises and a tenant of a part of them.</p> <p>A tenant of a café and barroom in Manhattan will not be granted a continuance of a temporary injunction restraining his landlord, about to add several stories to the building, from erecting a wooden . bridge or structure in front of the tenant’s demise interfering to some •extent with his easements of light, air and access, where the bridge is required by and complies with the building code of the city of New York and is essential to the building operations, as in such case the continuance of the injunction would be a greater hardship to the landlord than its vacation would be to the tenant.</p>

<p>Divorce — Bights of corespondent under Code O. P. § 1757.</p> <p>The Legislature intended by Code C. P., § 1757, subd. 2, to give a corespondent, in an action for an absolute divorce, all the rights of a party.</p> <p>Where a husband sues for an absolute divorce and his wife denies adultery and sets up a counterclaim of his adultery with an unmarried woman and he does not reply thereto, the corespondent is entitled to intervene, answer, and demand and have a jury trial of the issues so far as they affect her.</p>

<p>Application for an injunction.</p>

<p>Mechanic’s lien — Discharge by undertaking where there are several owners — L. 1897, ch. 418, § 18, subd. 4.</p> <p>Where a mechanic’s lien is filed against property, consisting of two lots owned separately, for work, labor and materials furnished thereon to a person who has contracted to buy both lots, it is not necessary that all three of the “ owners ” should execute the undertaking required by the Lien Law to discharge the lien and any one of them may do so.</p>

<p>Motion by plaintiff to restrain defendant landlord from cutting off its supply of power.</p>

<p>Application by defendant for leave to amend answer.</p>

<p>¡Reference — Referee cannot have an interest in the stenographer’s fees—Excessive fees.</p> <p>Where, at the beginning of a case, a referee therein makes a bargain with the stenographer for a share of the fees payable for copies of the testimony, the report of the referee must be set aside, as such an agreement is wrongful upon his part, casts suspicion upon his impartiality, tends unduly to prolong the reference, contributes to the admission of irrelevant and immaterial evidence and is a fraud and imposition upon the parties.</p> <p>A referee is to be censured for extravagant charges where, the amount of his fees having been left open at the commencement of the case, he endeavors after it has been closed to have his fees fixed by stipulation at. $20 for each of'97 hearings, 68 adjournments and 91 days of deliberation upon his' report, and subsequently reports in favor of the party who signed the stipulation and paid the fees,- the opposing party having declined to sign.</p>

<p>Motion to vacate an attachment.</p>

<p>Will — Construction — Blood of testator preferred.</p> <p>The second clause of the will of a testator devised and bequeathed the remainder “ of my property * * * equally to my brothers and sisters, and their children living at the time of my decease, and also the father and brothers of my beloved wife and their children now living and who may continue to be living at my decease. And in. the event of the decease of the issue of any one or more of my brothers and sisters before my decease, including those already deceased, as well as those who may decease, that then the issue of such issue shall take the share which its or their parent would have taken if living at my decease.”</p> <p>Held, that the testator intended his estate to be divided per capita between his brothers and sisters and the children of such of them as might be living at the time of his death, and his wife’s brothers and their children living at the time of his death — grandnephews and nieces of one stock together taking the share of their parent.</p> <p>That the testator did not intend to exclude the children of his surviving brothers and sisters from sharing in his estate and admit thereto children of his wife’s surviving brothers, but that both had equal rights.</p> <p>That if any ambiguity had existed, that interpretation would be adopted which preferred the blood of the testator to strangers.</p>

Action, iu equity, by a widow to enforce an agreement of her husband, since deceased, to provide for her by his will in consideration of her abandonment of proceedings to procure a separation from him.

Application of the executrix of Christian Grotrian, deceased, for a distribution of the proceeds of the sale of his real estate for the payment of his debts.

<p>Promise for benefit of third person — Consideration — Identity of beneficiary.</p> <p>Where receivers, appointed in proceedings for the voluntary dissolution of a corporation and in other proceedings to foreclose a mortgage upon all its franchises, premises and property, convey, in connection with the corporation and the sheriff, all its assets for a price insufficient to pay all the expenses 'of the accounting and dis- ■ charge proceedings of the two receiverships, and the grantees thereupon covenant to pay them, “ as and when they may be ascertained ’V and the receivers covenant “ to do all and everything and things which may be necessary to wind up said receiverships ”, an attorney for the receivers, who has subsequently been awarded by the Supreme Court compensation for services rendered the receivers on their said accountings and discharge, may recover such compensation of the grantees as upon a promise made by them for his benefit, although he had not been retained by the receivers when the grantees made their covenant.</p> <p>Traver v. Snyder, 34 Mise. Rep. 406, affirmed.</p>

<p>Principal and agent — A collecting attorney cannot accept the debtor’s note — Ratification by acquiescence.</p> <p>In the absence of specific authority an attorney to whom a claim has been transmitted by a creditor for collection has no authority to accept a promissory note of the debtor, or that of a third person, in payment of the claim.</p> <p>Five years’ acquiescence of the creditor is sufficient, however, to permit the inference of ratification by the creditor of the unauthorized act of her attorney.</p> <p>Finlay v. Heyward, 34 Mise. Rep. 818, reversed.</p>

<p>Appeal from an affirmance by the General Term of the City Oourt of the city of Eew York of a judgment rendered in favor of the plaintiff at a Trial Term of said court. The first paragraph of the amended complaint in this action was as follows: “I. That on or about the 18th day of August, 1899, the above named plaintiff and the defendant herein, entered into an agreement, wherein and whereby, the said defendant, in consideration of this plaintiff entering into his employ and service, for the term and at the compensation hereinafter stated, agreed to employ and did employ the above named plaintiff, as a foreman in the said defendant’s pants factory, at No. 535 Broadway, in the city of New York, borough of Manhattan, for a term of one year, beginning from the above named date, at a salary of ten hundred and forty ($1040) dollars a year, payable in equal weekly payments of twenty ($20) dollars per week during said term, and said plaintiff, in consideration thereof, agreed to and did enter into the employ of the said defendant, for said term at said compensation as hereinbefore stated, and thereupon entered upon his service, and continued in said employment and service, until the 8th day of October, 1899.” The second paragraph alleged a wrongful discharge. The first paragraph of the answer was as follows: “I. Defendant admits that the above named plaintiff was employed in his factory at No. 535 Broadway, in the city of New York, borough of Manhattan, until the 8th day of October, 1899, but denies each and every allegation or parts of allegations contained in paragraph marked * I ’ of the first cause of action in plaintiff’s amended complaint contained.”</p>

<p>Appeal from a judgment of the General Term of the City Court of the city of New York, affirming a judgment entered on a verdict directed by the court at Trial Term.</p> <p>Action upon a promissory- note made by the defendant to his own order, indorsed by him, by Estella Heymann, and by Henry M. Heymann, and delivered by the latter to the plaintiff at a discount greater than the legal rate. The plaintiff proved by the defendant, on the hitter’s cross-examination, that on the same day that he delivered the note in suit to Henry M. Heymann he received from Heymann his note for an equal amount, maturing at the same date. The defendant had testified on the direct that he had received no consideration for the note in suit, and that it was made by him for the accommodation of Henry M. Heymann. The court refused to let the defendant show, on the redirect, “ just what occurred ” when Henry M. Heymann gave the note in suit, and also excluded the defendant’s attempt to prove, by the books of the plaintiff, usury in the purchase of the note.</p>

<p>Appeal from an order of the General Term of the City Court of the city of New York, affirming an order denying the plaintiffs motion for a retaxation of costs.</p>

<p>Appeal from a judgment in favor of the defendants, rendered in the Municipal Court of the city of New York,- ninth district, borough of Manhattan. . Action of replevin,</p>

<p>Services — Statute of Frauds — Abandonment — Damages.</p> <p>The invalidity of a contract for services by its terms not to be performed within a year is not available to the master to defeat a recovery by the servant of his agreed compensation where he has been permitted to perform and has performed upon his part.</p> <p>In such case the void contract may afford a measure of the value of the services.</p> <p>Where however the servant performs services for only ten months of the stipulated term of one year and then abandons without the master’s consent, he cannot recover under the contract, nor does his stipulated yearly salary afford a measure of the value of his services for ten months.</p>

<p>Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of New York, third district, borough of Manhattan.</p>

<p>Municipal Court of the city of Mew York — Jurisdiction of non-res)' dent — How challenged.</p> <p>Where a defendant proposes to challenge the jurisdiction of a court ■ he should appear specially and raise the question by motion and therefore an answer which begins by stating that the defendant answers “ without conceding jurisdiction of this court ” is insufficient to raise the question.</p> <p>A non-resident of the city of New York may be sued in its Municipal Court by a long summons if he has a place in the city for the regular transaction of business, and, therefore, where he is so sued within the city, he cannot overcome the presumption that the service was proper and oust the court of jurisdiction unless he shows not only that he was a non-resident but also that he had no place in the city for the regular transaction of business.</p>

<p>Appeal from a judgment rendered in favor of the defendants in the Municipal Court of the city of" New York, seventh district, borough of Manhattan.</p>

<p>Contract — Construction — Time,</p> <p>The plaintiff contracted to insert the defendants’ advertising card in certain street cars for a term of twelve months commencing December 1st, 1899, and the right was also reserved to the defendants to discontinue the contract at the end of three months by giving the plaintiff thirty days previous written notice and paying twenty-five dollars per month additional.</p> <p>Held, that the last day for giving notice of discontinuance was Jan. 30, 1900.</p> <p>That, in the absence of any proof thereof, it was erroneous for the court to submit to the jury the question whether the time for giving notice had been extended by consent or acquiescence.</p>

<p>Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of Hew York, eighth district, borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of the plaintiffs in the Municipal Court of the city of Rew York, second district, borough of Manhattan. Action for conversion.</p>

<p>Appeal from a judgment rendered in favor of the plaintiff in. the Municipal Court of the city of New York, seventh district, borough of Manhattan.</p>

<p>negligence — Allegations permitting proof of earnings of injured person.</p> <p>Where the complaint, in an action to recover damages for injuries received in boarding a street car, alleges that the plaintiff: “ was prevented from attending to her duties as a manufactory employee ”, she is entitled thereunder to testify upon the trial how much she earned as wages as a basis for the recovery of her loss of wages.</p>

<p>Appeal from a judgment rendered in favor of the defendant in the Municipal Court of the city of New York, seventh district, borough of Manhattan.</p>

<p>Amendment — Befused, after judgment, when changing the nature of the action.</p> <p>Where the conditional vendor of a chattel recovers a money judgment against the vendee upon his default, in an action for goods sold, the vendor cannot thereafter procure the justice to amend his return so that it shall appear that the complaint was for conversion, nor will the vendor be permitted to appeal from the judgment in his favor in order that it may be amended so as to state that the defendant is subject to arrest and imprisonment.</p>

<p>Funeral expenses — Primarily a charge against the decedent’s estate — Evidence of estate.</p> <p>Funeral expenses are primarily a charge against the estate of the deceased and where he leaves one resort should first he had to it.</p> <p>Where, therefore, an undertaker sues a defendant upon his alleged contract liability for the charges of the funeral of one to whom he had borne the relation of an adopted son, the defendant is entitled to show that the deceased left an estate and it is fatal error to exclude the evidence.</p>

<p>Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of New York, sixth district, borough of Manhattan.</p>

<p>Action by an individual — An amendment cannot authorize him to replevy as an executor.</p> <p>Where the plaintiff sues as an individual, he cannot replevy property which he alleges, in his affidavit for the writ, that he owns and possesses as executor of a decedent.</p> <p>An amendment adding the word “ executor ” to the summons and to the affidavit for the writ of replevin is insufficient to confer jurisdiction, nor has the court power to amend, in this manner, an executed undertaking given by the plaintiff to procure the writ of replevin.</p>

<p>Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of New York, eighth district, borough of Manhattan.</p>

<p>KTegligence — Insufficient damages.</p> <p>Where the plaintiff is permitted, in an action predicated upon negligence, to recover the reasonable expenses of medical attendance upon him made necessary by his injuries, the judgment must be reversed, at his instance, where he is allowed no recovery for the injuries themselves.</p>

<p>Sale — Refusal to accept an installment of an entire contract — Rescission.</p> <p>Where the contract for a sale of goods is entire, the vendee’s refusal to accept an installment of the goods is a breach which entitles the vendor to rescind. -</p>

<p>Appeal from an order of the Municipal Court of the city of New York, third district, borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of the defendant in the ¡Municipal Court of the city „ of Hew York, second district, borough of Manhattan.</p>

Morion for a stay on appeal from an order herein requiring the respondent, who holds the office- of Commissioner of Jurors of the county of Kings, to deliver to the petitioner the books and papers of such office.

This is an application for a peremptory writ of mandamus against the secretary and the treasurer of the Board of Education of the City of New York to require them to draw and sign a warrant to the petitioner for his pay of $203.75 for May, 1901, as janitor of public school No. 26 in the borough of Brooklyn.

<p>Motion to strike out parts of the answer.</p>

<p>Hearing of the issue raised by a demurrer to a return to tho writ of habeas corpus.</p>

<p>Schools — Right of Rochester board of education to pay salaries to teachers in a local orphan asylum — Constitution of 1894, art. VIII, § 14; art. IX, § 4; L. 1894, ch. 556, tit. 15, art. XII; Ii. 1898, ch. 660.</p> <p>An orphan asylum, giving instruction to the inmates as an incidental purpose but giving no religious instruction to them during school hours, is not a “ school or institution of learning ” within section 4 of art. IX of the Constitution of 1894 forbidding the State or any subdivision thereof from aiding or maintaining, by its property, credit or by public money, a school or institution of learning in which any denominational tenet or doctrine is taught.</p> <p>Where such an orphan asylum, located in Rochester, is subject to the rules and regulations of the common schools of the State and to visitation by the State board of charities, the city board of education may, as agent of the city, under the authority of section 14 of article VIII of the said Constitution, that of the Consolidated School Law, and that of its charter, pay salaries of teachers of the asylum out of moneys raised by the city by direct taxation.</p>

<p>Motion to confirm report -of commissioners appointed to 'ascertain the compensation to be made the defendants herein, as owners of the property taken for the public use and motion by the guardian ad litem for an extra allowance.</p>

<p>Motion for leave to issue an execution on a judgment after five years.</p>

<p>Motion to yácate -a judgment on the ground of a discharge in bankruptcy.</p>

<p>Attachment — Plaintiff, when required to give further security under Code C. P., § 682 — Items recoverable — -Laches.</p> <p>Whether the court will direct an increase of the security theretofore given by the plaintiff to the defendants in order to procure a writ of attachment against their property, depends upon the question whether the action must be tried in order to get rid of the attachment.</p> <p>Where, therefore, an attachment against non-resident defendants was not assailable and had not been assailed on any statutory ground and the defendants had succeeded in the action up to the Court of Appeals, the court at Special Term increased the amount of the plaintiff’s original undertaking from $250 to $4,000 to cover the fees of counsel, sheriff and stenographer already incurred and fees to be incurred in defending the pending appeal to the Court of Appeals, the court considering that the trial and the eventual result of that appeal could alone decide the fate of the attachment — the parties -having agreed that the existence of the attachment was not affected by the judgments in favor of the defendants.</p> <p>Such a motion can be made at any time before the application of the attached property, or its proceeds, to the judgment recovered in the action.</p>

<p>¡Motion to punish for a contempt.</p>

<p>Motion for change of place of trial.</p>

Motion to set aside an order for the examination of defendants and an inspection of their books in order to enable the plaintiff to frame his complaint.

Action by plaintiff to recover damages for injuries received by ’the plaintiff in consequence of the explosion of' a siphon of seltzer water purchased by the plaintiff from the defendants.

<p>Action for an injunction.</p>

<p>Ejectment — Words reserving an alley — Remedy in equity.</p> <p>Where deeds of partition made by tenants in common reserve an alleyway by metes and bounds and reserve to the grantee and his heirs the sole and exclusive enjoyment thereof, a subsequent grantee thereof may maintain an action against owners of the adjoining lot, out of which the alleyway was reserved and taken, to recover possession of it. ¡</p> <p>The objection that only an easement was granted by the words of the deeds and that the remedy, therefore, is in equity comes too late when made at the close of the trial of the action in ejectment.</p>

<p>Action for the construction of a will. ^</p>

<p>Divorce — Motion, to vacate judgment after death of plaintiff — Remedy. Where the plaintiff in an action for absolute divorce dies after judgment has been rendered in his favor, the defendant cannot move, in the action, to vacate the judgment on the ground that it was im- ■ properly obtained.</p> <p>. To that end she must bring a separate action against all -the heirs- and other persons interested in the plaintiff’s real estate, grantees thereof subsequent to the judgment, and his personal representatives.</p>

<p>Town — The Hen created hy filing a collector’s bond-may be foreclosed in equity — Principal and surety — When administrators may defend as to land — L. 1890, ch. 569, §§ 52, 53, 66.</p> <p>The statutory lien imposed by the Town Haw upon the real estate of a town collector, and that of his sureties, by the due filing of his undertaking of office may, upon his default in failing to pay over tax moneys which he has collected, be foreclosed in equity by the town supervisor, as the remedy at law is not adequate,</p> <p>The inadequacy of the remedy at) law considered.</p> <p>' Where the collector deposited the tax moneys, now in default, with an insolvent banking firm of which one of his sureties, since deceased, iwas a partner, and these moneys passed into the firm assets and from thence into the hands of the general- assignee of the firm and there remained, the court considered that the lands of the banker should be sold first in the action as he, or his estate, had become in equity the principal debtor to the town; and it further held that the town supervisor was entitled to payment before the other general creditors of the deceased surety, even if the latter’s estate were insolvent.</p> <p>Where the complaint in the action alleges that the administrators of the deceased surety have or claim to have some interest in the premises which accrued subsequently to the lien of the undertaking, the administrators are entitled to defend upon the ground that the plaintiff has on the facts an adequate remedy at law. If the surety’s personal estate were insolvent and the administrators had taken proceedings to sell his real estate to pay his debts, they would be necessary parties to the action.</p>

<p>Judgment — Status of one recovered iu the lifetime of an intestate — Principal and surety — Joint debtors — Code C. P., §§ 1822, 2718; 1942-1944.</p> <p>A judgment docketed against an intestate in Ms lifetime cannot be rejected and referred under the statute as it is a debt which has been established by a court of competent jurisdiction. ,-</p> <p>In such case the surrogate must determine to whom the judgment is payable, the sum to be paid, and, among other things whether it has been paid.</p> <p>The relation of principal and surety exists between an owner of real property, personally liable on a bond secured by mortgage upon the property, and his grantee who assumes payment of the mortgage, and consequently where the assignee of a deficiency judgment recovered upon the foreclosure of the mortgage is paid that judgment by such a grantee and satisfies it, the assignee cannot again recover its amount of the grantor, since deceased and a judgment-debtor in the same judgment, provided the said assignee had notice of the existence of the relation of principal and surety.</p> <p>■Such a satisfaction is not a compromise of a joint obligation within Code O. P., §§ 1942-1944, as the obligation is not joint</p>

<p>Appeal from a. judgment entered on a verdict, and from an order denying a motion for a new trial.</p>

Motion by the plaintiff for judgment upon a verdict for $635.20 ■directed in her favor at a Trial Term of the City Court of the city •of Hew York, subject to the opinion of the said court at General Term. The action was brought by John B. Ketcham, who died pending the action, and the plaintiff was substituted as his administratrix.

Appeal by the plaintiff from an order, made under Code of Civil Procedure, section 1268, discharging a judgment, in favor of the plaintiff against the defendant, on the ground of the discharge of the latter in bankruptcy more than one year before the motion.

r Appeals from a judgment entered upon a verdict for $174.36 for the plaintiff, and from an order denying a motion for a new trial. Action- to recover $168 for goods alleged to have been sold the defendants as partners, between July 8,1899, and October 20, 1900 — amounting to $936, on which $768 had been paid, leaving a balance of $168. The partnership created in October, 1898, was apparently dissolved by an. agreement executed July 13, 1899.

Action to recover a balance due Annie Podmore, the plaintiff’s intestate, upon an account which she had with the defendant. The defendant answered that the depositor had made a gift of the deposit, causa mortis, to one Bridget Reilly and that it had paid the money to her.

Appeals by the defendant, appellant, from an order made May 2, 1901, advancing this case for trial on the short cause calendar in Part IV, and also from an order made May 13, 1901, amending the same and sending the case to Part I for trial. The plaintiff first noticed the case for trial for April tenth, and his motion for an order placing it on the short cause calendar was made returnable April ninth.

Appeal by the plaintiff from a final judgment entered in favor of the defendants and against the plaintiff for $213.40, with notice of an intention to bring up for review an order overruling a demurrer to the answer, an order directing an interlocutory judgment overruling said demurrer, and the interlocutory judgment overruling the same.

<p>Appeal from a judgment entered in favor of the defendant upon the dismissal of the plaintiff’s complaint, at the close of his case.</p>

<p>Negligence — Contributory — Proximity to surface car made necessary by posts of elevated railroad.</p> <p>Where the proof, in an action for a husband’s loss of bis wife’s services caused by the defendant’s alleged negligence in running its electric surface car, shows that the posts of -an elevated railroad in the street made it necessary for the wife to stand within two feet of the defendant’s track in order to see whether its cars were approaching her street crossing, and that, while in this position, the fender of a car, coming very rapidly and "without ringing a bell, caught her • clothes, dragged her down and broke her leg, it is erroneous for the</p> <p>’ court to dismiss the complaint upon the ground of her contributory negligence.</p>

<p>Corporation — Contract made before its organization — Admissions of officers.</p> <p>A foreign corporation named The Union Cloak & Suit Co. cannot be held liable on renewal notes made by a domestic corporation under its name of The Union Cloak Co. where the merchandise debt represented by the notes was created before the foreign corporation was organized and it never received any benefit of the goods nor any other consideration for the notes.</p> <p>Statements of officers of the foreign corporation, made to the payees of the notes, that it used the name Union Cloak Co.^ in signing its notes, and that the corporations were the same, cannot in such case make the foreign corporation liable to the payees.</p>

<p>Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial.</p>

<p>Motion to vacate an injunction.</p>

Action for an injunction and for damages caused by an alleged nuisance. The plaintiff’s lot was located on Rorth Pearl street in the city of Albany, a street running north and south, north of Oolonie street, a street running east and west. The lot ran back westerly and up a hill. The defendants’ lands were directly in the rear and further up the hill. An alley running southerly to Oolonie street divided the lands of the parties.

Action in partition and to establish title to an undivided one-half interest in lot ETo. 63, township ETo. 4, Old Military Tract, in Clinton county. The defendants, among other things, alleged title under a deed from the owner before the tax sale mentioned in the opinion.

<p>Election af a town meeting held by districts — Town law governs — Irregularities not fatal. -</p> <p>An election at a town meeting, in a town where such meetings are held by districts, on a day other than a general election day is not governed generally by the Election Law (L. 1896, eh. 909), but mainly by the Town Law.</p> <p>The town canvassing board cannot be directed to convene, recanvass / the votes cast a,t such an election (on the local option questions), and, in so doing, reject, for irregularities, returns from certain districts, unless the returns attacked are wholly void.</p> <p>Where the people of a town have expressed their will at an election, it should not be overridden because of the negligence and carelessness of the town officers.</p> <p>The following deviations from the Town Law (L. 1890, ch. 569, § 38, renumbered, and amended by L. 1899, ch. 168, § 2), were regarded by the court as not fatal:</p> <p>That, in two districts, the inspectors selected one of their number as poll clerk;</p> <p>That, in some districts, the poll lists were not subscribed as required by the statute;</p> <p>That, in one district, the inspectors did not return how many ballots were void, it appearing that the void ballots were inclosed by them in a sealed package and filed with the statement of the canvass;</p> <p>That, a supervisor of the town, who took no part in the canvass, was present at it and signed the statement of ft.</p>

<p>Motion for the cancelling and discharge of record of a judgment.</p>

<p>Measure of damages — For agricultural lands on Long Island deprived of natural water by Brooklyn pumping system — Special damages — Injured person to make loss small as possible — Fraud.</p> <p>In an action for damages caused to Long Island agricultural lands by the lowering of their water level through the action and suction of the pumping system of the borough of Brooklyn, the measure of general damages Is the difference between the reasonable value of such lands with and without their natural water.</p> <p>i The rental value is not a proper measure of damages where lands are not commonly rentable.</p> <p>Special damages may be recoverable but are dependent on the circumstances of each case.</p> <p>Where a pumping system has been in operation for many years and has affected such lands permanently and injuriously, their owner is not justified in continuing to work them, and then attempt to make the city of New York pay him special damages for the labor, skill and expenses of cultivation which he lost during all the years of cultivation for which recovery was possible.</p> <p>Excluding the value of the labor and skill of the owner and adding taxes, the value of the annual use of such lands is somewhere between three and five per cent, of the sale value, and, accordingly, where the owner of such lands, worth $6,500, claimed damages of the city of New York for $75,000, the court considered the claim untenable and as indicative of fraud.</p>

<p>Motion to set aside a verdict in an action for libeL</p>

<p>Motion for a new trial upon the minutes.</p>

<p>Benefit order — Membership — Status of a director in a corporation.</p> <p>A director of a corporation manufacturing and selling malt liquors is not within the prohibition of the laws of a fraternal order making ineligible to membership therein any person who “is engaged either as principal, agent or servant in the manufacture or sale of * * * malt * * * liquors as a beverage,” as a director is in no sense the principal, agent or servant of his corporation in the transaction of its business.</p>

<p>Condemnation — Corporation organized to prevent a village from condemning a necessary¡ water supply — Corporate property when not devoted to the public use — L. 1890, ch. 566, art. 7.</p> <p>Where a village, in need of a water system, has duly voted and bonded itself for one and filed a map and plans therefor, in the proper offices, embracing the only adequate supply existing in the immediate vicinity of itself and of an adjacent village, It cannot, in equity, be prevented from condemning the lands containing the supply upon a disagreement as to price with a corporation organized, under the Transportation Corporations Law, in the other village, as alleged, to supply it iwith water, and which has bought the said lands, where it appears that that corporation has filed no map of them under the statute, has entered Into no valid contract with its village binding It to supply that village with water, has, therefore, in no manner devoted the lands to the public use, and that the corporation was organized, two months after the first named village had filed its map and plans, in order to thwart it from acquiring the water supply.</p>

<p>Cbbditob’s action, to set aside a deed of certain land made by the defendant James H. Bronson to the defendant George W. Bronson, as alleged, without consideration.</p>

<p>Equity — Decision — Opinion — Rescission — Statement of an opinion not fraud.</p> <p>There is no statute or practice which requires insertion, in a decision in equity in favor of the plaintiff, of the reasons why defenses set up in the answer are' not sustained, nor need the justice iwrite as» opinion in the case. ■</p> <p>A party cannot rescind a contract unless he restores what he received under it.</p> <p>A party’s statement of his legal rights in a’play, if incorrect, cannot constitute actionable fraud.</p>

<p>Trademark — Soap manufacturers enjoined from using the words “ Omega Oil,” belonging to liniment manufacturers — Use of .a, distinctive color.</p> <p>The owners of a trademark in the name “ Omega Oil ”, a liniment, green in color and for which green has been adopted as a distinctive color, are, upon the ground of unfair competition, entitled to restrain manufacturers of a green medicated skin and scalp soap, employing therein small quantities of “ Omega Oil ” and putting the soap up in a green box and wrapper, from using the words “ Omega Oil ” as a part of the designation of their soap, as liniment and soap, upon the proof submitted to the court in this action for an injunction, are not of such a different character as to permit the soap manufacturers to use -the name' created and made valuable by the liniment manufacturers.</p> <p>The court further held that, if the soap manufacturers omitted from the designation of their soap the words “ Omega Oil ”, it Had no power to restrain them from using the color, green, in their soap and on its boxes and wrappers.</p>

<p>Application to set aside an execution issued out of the Municipal Court of the city of Hew York, and to vacate a levy made thereunder by a city marshal.</p>

<p>Interest — Statute (L. 1900, ch. 678), showing an intention to a give it.</p> <p>A statute (L. 1900, ch. 678) for the payment of a contractor with-Long Island City for work done for it in 1888 and. 1889 empowered the board of estimate and apportionment of New York city to act in the matter, declared that if it appeared to the board that the services. were actually contracted for and performed and that the fair and reasonable value of the work “ was ” the sum of $3,862.50, as claimed, or any less sum, the board should certify what the work “was”" reasonably worth and the city comptroller was authorized to pay the claimant that sum, “ together with interest on the aggregate sum so certified ”. In April, 1901, the board certified that the fair and reasonable value “ is $3,862.50 The work was completed on or before December 22, 1889.</p> <p>Held, that it was the evident intention of the Legislature that the claimant should have interest from the -completion of the work, December 22, 1889, and not, as claimed by the city, from April, 1901, when the board made its certificate.</p>

Motion by the heirs and devisees of owner of the fee, subject to a mortgage, to set aside judicial sale under foreclosure of said mortgage.

<p>Application for a certificate of reasonable doubt whether a judgment convicting the defendant should stand.</p>

<p>Motioe for peremptory mandamus.</p>

<p>Application for peremptory writ of mandamus.</p>

<p>Action for the construction of a will and codicil.</p>

<p>Action for an injunction to restrain the defendants from constructing a sewer through Hiawatha avenue in the city of Syracuse, and from discharging the same into the waters of Onondaga creek at that point.</p>

Motion to confirm the report of a referee appointed to compute the amount due upon a mortgage made by the defendant, The Dolgeville Electric Light & Power Company, to the plaintiff, as trustee, to secure the payment of $50,000 worth of its thirty-year 6 per cent, coupon bonds, given pursuant to a resolution of its board of directors, and with the written consent, to mortgage, of the owners and holders of more than two-thirds of its capital stock.

<p>Deed — Words passing the fee in a highway.</p> <p>The law presumes that a grantor who conveys lands upon a public highway does not intend to reserve the fee of its bed and this presumption can only be rebutted by clear and decisive language.</p> <p>A conveyance of a farm in the city of New York, divided by the Greenwyck road running northerly and southerly, which, after conveying separately the part west of the road and the bed .of the westerly half of the road, conveys the part east of the road by a description, in courses and distances, “ beginning on the east side of Greenwyck road at the northwest corner of the land of Lewis Scott (adjoining on the south) * * * and is known in a division of the estate of Jacobus Van Orden, deceased, by lot number 2, and is bounded * * * to the westward by Greenwyck road ” sufficiently conveys to the grantee the fee of the bed of the easterly half of the road.</p>

<p>Action for a separation — Alimony and. counsel fee.</p> <p>Where a wife brings an action for a separation and for support and her affidavits indicate that her husband’s course of conduct towards her has justified her in leaving him and entitles her to live apart from him, the rule that she should apply to the police courts for support will not be applied, as she in such case is entitled to alimony, as distinguished from mere support, and to a counsel fee to prosecute her action, relief which the police courts cannot give.</p>

<p>Express trust — Form — Suspension of power of alienation — Gift of a house, the furniture and “ all the contents ” does not include securities in a safe — Election as to dower.</p> <p>A testamentary direction to executors, as trustees, “To invest and keep invested so much of my said estate as may be personal, and to collect and receive the rents, issues, incomes and profits of so much of my estate as may be real property and to pay over after deducting all lawful expenses the net income "arising from my property both real and personal ” to certain beneficiaries named, creates, as to the realty, a valid express trust of the third class mentioned in the statute (L. 1896, chap. 647, § 76, subd. 3).</p> <p>The validity of a trust, created for two lives in being only, is not affected by the fact that a number of persons may be its beneficiaries during the term.</p> <p>Held, that the second wife was not entitled to the contents of the safe and, further, that they were not consonant with “ furniture”.</p> <p>Where the provisions of a will are not inconsistent with dower the widow is not put to an election.</p>

<p>Demurrer to complaint.</p>

Action by judgment creditors of defendant Goldstein to set aside the transfer of a large amount of accounts, made on eve of said Goldstein’s failure.

<p>Demurrer to complaint.</p>

<p>Action for damages and an injunction.</p>

<p>Mortgage — Reassignment by mortgagor after payment and surrender — Equities — Code C. P., §§ 829, 835.</p> <p>Where a wife mortgages property given her by her husband, thereafter reconveys it to him by warranty deed upon his promise subsequently executed to will her a life estate in all his property provided she pays the liens upon his real estate, and after paying the bond and mortgage and taking an assignment of them after his death, assigns them and thereafter induces another party to buy them of her assignee, for her advantage, she tacitly representing them as valid, the purchaser may enforce them against her life estate, as she has estopped herself; but he cannot enforce them against the heirs or executors of her husband as she has become, as to them, the principal debtor and has paid the debt, a duty in the proper performance of which they have an interest.</p> <p>An assignee of a mortgage takes it subject not only to all equities of the parties to it, but to equities which third persons could enforce against the assignor.</p> <p>Testimony of the husband’s attorney and executor as to the facts of the transaction between the husband and wife, when she reconveyed to him upon his promise to provide for her by will, is not excluded by Code C. P., § 835, nor by section 829, nor because the plaintiff in foreclosure, the person to whom the wife assigned the mortgage, was not present at the transaction.</p>

<p>Attachment — Affidavit as to a sum certain being due — Subordinate causes of action may be joined with the main one.</p> <p>The rule that in order to procure an attachment the plaintiffs must prove by affidavit that they are entitled to recover a sum certain, over and above all counterclaims known to them, should not be so strictly held as to defeat the remedy, and an attachment may be allowed to stand for an amount reasonably justified by the papers upon which it was granted.</p> <p>The court held, however, that a separate cause of action stated as for the defendant vendee’s breach of an agreement to take, during the first year of contract relations, 600 harmonists at $110 each and taking only 260, causing an alleged loss of profit of about $1,000, and for the vendee’s refusal to surrender instruments, orders, plates, lithographs, accounts and contract rights, to the value of $9,500, notwithstanding the vendors had, as alleged, a right to and had can-celled the contract for the vendee’s non-compliance with it, did not show that the vendors were entitled to recover any sum certain upon that cause of action.</p> <p>The plaintiffs may properly unite, in one action in which an attachment is sought, all their claims against the defendant under one contract and also those under any other subordinate and incidental contract '</p>

<p>Village street railway corporation — Its duty to pave in aind outside of its permanent way — L. 1892, ch. 676, § 98; 1901, ch. 494, § 1.</p> <p>A franchise or contract, given in 1882 and renewed in 1894, by a village to a street railway corporation, now operated by electricity, contained the requirement that the space between the rails and for twenty inches outside of them, on both sides of the track, should be paved by the railway corporation with “ small stone ” and “ that the same should at all times be kept in good condition.” In. 1899 the village required of the railway corporation a six inch excavation filled in with sand or gravel and covered with vitrified paving brick. The railway corporation refused to pave and the village, at its own expense, did the work it had required.</p> <p>Held, that the village could recover the expense of the railway corporation, as the village had a right to exact what it deemed a pavement suitable in 1899, and was not limited to requiring a pavement composed of “ small stone.”</p> <p>That the contracts or franchises granted by the village trustees, persons having limited powers, were not a defense, as the trustees could not give up the streets to private corporations nor surrender the right of the public to have the streets in proper condition for use</p> <p>That the act (L. 1892, ch. 676, § 98), requiring a street surface railway corporation to keep its street way in repair as and when directed by the local authorities, did not impair the obligation of contracts, and that the act (L. 1901, ch. 49'4, §1), ratifying pre-existing contracts between street railway corporations and villages, constituted no defense.</p>

<p>National bank — Remedy of stockholder sold out for an assessment made necessary by the misconduct of directors — Duty of directors — Statute of Limitations.</p> <p>A former stockholder in a national bank, presently solvent, whose stock has been sold out by the bank for his failure to pay an assessment thereon made necessary by the negligence or misconduct of its directors in loaning its funds to irresponsible parties, may maintain, for himself and all others similarly situated, an equitable action against the bank, and the directors who permitted or caused its loss, to make the directors account to and pay him the value of his stock, as it stood before the acts of negligence or misconduct.</p> <p>While ordinarily the action should be brought by the corporation against the delinquent directors, this need not be when the managing directors are the ones charged with misconduct.</p> <p>The directors of such a bank must exercise a reasonable supervision, but where they appoint from their number a discount committee and an examining committee, they shift the responsibility to the members of such committees; and when during three years such committees permit the cashier of the bank to discount notes, for a mere dealer' in cheap musical instruments, taken by him from purchasers not known or shown to be responsible, and which notes are frequently protested or renewed, to such an extent that his discounts finally cover two-thirds of the bank’s capital, a condition of negligence or misconduct upon the part of the members of the committees is presented which makes them liable to stockholders injured thereby.</p> <p>The Statute of Limitations applicable to such action is ten, and not three, years.</p>

<p>Action by plaintiff to recover damages for perceptibly and materially diverting and diminishing the water at his mill.</p>

<p>Appeal from a judgment of a justice’s court.</p>

Motion or proceeding to set aside an annual town election, and ■ application for a special election, asking for the resnbmission to the people of the town of Union of the four questions under section 16 of the Liquor Tax Law.

<p>Foreclosure — Eeferee may convey within twenty years — Failure to file report of sale — Deed to a deceased purchaster —i Assignee in possession.</p> <p>A referee in foreclosure may, as against the mortgagor’s widow claiming dower, execute a deed within twenty years of the judgment, as not until then does a presumption arise that the mortgage debt has been paid, or the judgment satisfied.</p> <p>A referee’s deed, otherwise valid, conveys title, although no report of sale was ever filed and there is no proof, beyond the recital in the deed, that notice of sale was duly published.</p> <p>A referee’s deed to the purchaser at the sale, deceased at the time of its execution, running to her; “ her heirs and assigns forever ”, is valid where the deed recites the sale and the payment of the bid and the heirs indicate acceptance of the deed by subsequently conveying the premises covered by it.</p> <p>The proper practice is, however, to have the deed run to the personal representatives of the purchaser.</p> <p>Where, in addition to the foregoing facts, it appeared that the grantee of the heirs entered immediately into possession and, by heriself or her mesne grantees, remained therein undisturbed by any claim by or under the mortgagor for seventeen years, the court considered that the present holders of the title had become assignees of the mortgage, in possession, and that ejectment would not lie ■against them.</p>

<p>This is an action at law, brought to recover on a certain bond for $1,000, claimed to have been issued by the defendant, and which bond is one of a series of $18,000, issued in the year 1895, and becoming due $1,000 each year. The plaintiff seeks to recover as a bona fide holder of said bond for value, and various defenses are alleged by the defendant impeaching the validity of the entire issue of said bonds. These.defenses and the various material facts appearing in the case are outlined in the opinion.</p>

<p>New York city — Time of filing objections to report of commissioners of estimate — “ Plottage ” defined • and considered — Amount. of ■award — When it may be made to unknown owners.</p> <p>•Sundays must be included in computing the ten days, after the first publication of the notice of the deposit of the report of commissioners of estimate of the city of New York, within which objections thereto must be filed under L. 1897, ch. 378, § 1440.</p> <p>The added value which an entire plot has, as against the aggregate value of the several lots which compose it, is known as “ plottage ”.</p> <p>In estimating “ plottage ”, the fact that existing improvements may have to be destroyed by the owner in order to adapt the plot to a new use cannot properly be considered or deducted.</p> <p>- The amount of an award is in the commissioners’ discretion and will not be reviewed unless grossly- inadequate or excessive.</p> <p>Where the commissioners are in doubt as to the title of a lot, their award may be made to unknown owners.</p>

<p>Motion for an injunction.</p>

Action by a substituted trustee appointed by the surrogate against the sureties on Mrs. Cronly’s bond “to ascertain and determine the amount due to said trust estate, from said Mary Emma Cronly, late trustee, and that when said amount shall be so determined the defendants may be adjudged to pay the same to plaintiff, for the benefit of said trust estate.”

<p>Motions to remove indictments into the Supreme Court for trial.</p>

<p>Action brought for the construction of the will of Ruby Til-den Paine.</p>

<p>Action in the nature of a creditor’s bill to set aside a deed from the defendant Eli Smith to the defendant Lavina Smith, executed on or about July 18, 1900, of a small piece of land situate in the Town of Cicero, Onondaga county, U. Y., of the value of from $400 to $700, and subject to a mortgage of $150. The conveyance reserved to the defendant Eli, who is a man about seventy years" of age, a life estate in said property.</p>

<p>Motion for substitution of attorneys.</p>

Motioy by an attorney, in his own behalf, i ■ aside an order granted on a stipulation, on the ground that it did not provide for his costs. 1

<p>Demurrer to indictment.</p>

<p>Motion to vacate an attachment.</p>

<p>Proceedings under the Liquor Tax Law.</p>

The relator has sued out a writ of certiorari by which to review an assessment made by the defendants of certain property of his situate in the village of Cape Vincent, on the ground that. the valuation placed thereon is excessively high. Upon the return day of the writ, the defendants appeared and made- a preliminary motion to have the writ quashed, failing in which, they desire to have their return to such writ filed and an order of ¡reference made under the statute.

Proceedings for the condemnation of certain real estate, situate in the city of Syracuse for the purpose of a public park.

<p>Actioit for partition.</p>

Morrow for an order of reference upon default, to compute amount due upon the bonds. Application by petitioners for leave to intervene and defend.

<p>Foreclosure — Election, to accept option to foreclose for unpaid installment, shown by action brought.</p> <p>Where the mortgagee is given by a mortgage an option to foreclose it upon a failure of the mortgagor for sixty days to pay an installment of principal or interest, the mortgagee’s commencement of an action of foreclosure sufficiently indicates his election in the matter, and his right so to. foreclose is not affected by another clause of the mortgage, relating to taxes and assessments only, under which sixty days “ after demand and notice ” in regard to them must elapse before the whole amount shall become due.</p>

<p>Action to recover the difference in salary, alleged to be due the plaintiff’s intestate, between that of-a captain and that of a patrolman.</p>

<p>Hew York city — A deputy city clerk thereof may he summarily removed—Civil Service — L. 1898, ch. 681, § 9; 1897, ch. 378, §§ 31, 38, 33, 1543; 1899, ch. 370, § 81.</p> <p>The city clerk of the city of New York may summarily remove and discharge a deputy city clerk, appointed as such and assigned to the borough of Queens, although the deputy, being alone in the office, did all its work, general and clerical, performed all its other duties and was made by the city clerk caretaker of the records and papers of that particular office.</p> <p>The deputy does not by the performance of these duties become a clerk entitled to the protection of the civil service regulations but remains at all times a deputy and, as such, is not protected from summary removal by any statute, even though he be an exempt fireman.</p>

<p>Implied trust — Eor the minority arising out of a foreclosure instigated by the majority stockholder — Consideration — Equities in the absence of actual fraud.</p> <p>Where a controlling1 majority stockholder in and the guarantor of the second mortgage bonds of an insolvent rapid transit company failed to pay the interest on the bonds from lack of proper resources and, upon a premeditated foreclosure and sale resulting from the default, bought the property in nominally by a new company, took all the new stock and, in lieu of paying the purchase price, issued bonds of the new company for those foreclosed, it was held that because of the irregularity of the transaction an implied trust in the new stock arose in favor of the minority stockholders to the extent of their interest in the old stock, and this notwithstanding the trifling value of that stock.</p> <p>But that, as no actual fraud was shown, the minority, to entitle themselves to the new'Stock, must within twenty days pay the majority stockholder their pro rata share of certain moneys it had paid, after the judgment in foreclosure and before the sale therein, for interest on the bonds foreclosed and, further, that the majority stockholder had as against them a lien for unsecured and unpaid advances theretofore made by it to the rapid transit company and also a lien for income bonds of the ¡latter company which the majority stockholder held at the time of the judgment in foreclosure, and that, to secure this lien, the minority stockholders must deposit their new stock with the majority stockholder and pledge it.</p>

<p>Bight of pasturage — When it is a mere privilege.</p> <p>A clause contained in a deed giving the grantee a right to pasture certain lands of the grantor lying between the premises granted and the Hudson river, accompanied by a proviso that if, at any time, the grantee required a fence on those lands the right of pasturage should cease, is a license personal to the grantee and does not run with the lands.</p> <p>Whenever an easement or an appurtenance is not an essential and necessary adjunct to the lands conveyed its scope will be limited.</p>

<p>Actioh to recover damages for diversion, of underground waters by driven wells operated by defendant. (See Forbell v. City of Yew York, 164 Y. Y. 522.)</p>

<p>Municipal contract — City cannot forfeit it where the city is in default — Condition against assignment — Stipulation.</p> <p>Where a course of dealing between a city and a contractor with it has established a practice of the city’s measuring up his work monthly, certifying to it and paying seventy .per cent of it in the succeeding month, the city cannot, where the contractor is proceeding properly, delay measuring up the work, neglect to make him the usual monthly payment within the month necessary to enable him to continue the work, and thereafter declare the contract abandoned for his unnecessary delay. In such case the contractor is, without further performance, entitled to recover of the city the entire amount he had earned up to the time of the city’s breach.</p> <p>A clause in such a contract forbidding assignment of it unless the commissioner of street improvements consents thereto in writing is to be considered as one for the city’s protection against an assignee, and- is available to it only and only when pleaded by it.</p> <p>Therefore, where the contractor took an assignment of the whole contract from his former partner therein and thereafter assigned the thirty per cent, held in reserve by the city, to a bank as collateral security for his own discounted note, the court considered the clause inapplicable to a case in which it had already found that the reserve belonged to the contractor, and it further held that the assignment to the bank, being prior in time to certain other liens filed, entitled the bank to a preference to the extent of the moneys assigned.</p> <p>A stipulation of attorneys for lienors as to the distribution of the surplus, remaining after the bank had been paid, should be given effect.</p>

Action to recover moneys paid on account of a contract for the purchase of certain real estate, and expenses of examining title. Counterclaim demanding specific performance.

<p>Action by the plaintiff, as a judgment creditor1 of Louis J. Jordan, deceased, against the United States Trust Company and the beneficiaries under a certain trust agreement, for a judgment declaring the plaintiff a judgment creditor of the decedent Jordan to the extent of the judgment; that as such creditor the plaintiff has a lien upon the trust fund in the hands of the said trust company prior to the creation of said trust, and that the said trust company pay the plaintiff the amount of said judgment remaining unsatisfied, with costs.</p>

<p>' New York city — Status of bath attendant — Compensation.</p> <p>A bath attendant of the city of New York receiving three dollars a day is to be classed in schedule F of the classified civil service; he cannot be removed peremptorily, and where his place has not been filled he can recover his wages where he, although ready to serve, was prevented from so doing by his superior officer. It was held, however, that, as the season for bathing closed with September and as his appointment was in its nature temporary, he could not recover wages after October first.</p>

<p>Taxpayer’s action to restrain the letting of a garbage contract — Defective complaint — Municipal officers should, be protected.</p> <p>A complaint by a taxpayer which alleges that the city commissioner of street cleaning, by his advertisement for bids for removing garbage, required the successful contractor to build and operate a suitable plant within thirty days although the commissioner knew that only one company specified in the complaint then had such a plant, and that a new one could not be built in thirty days, that although there were two other lower bidders he and the city board of estimate awarded the contract to the company specified, and that said board knew when it made the. award that the price accepted was “ extravagant ”, when unaccompanied by any allegations of fraud, fails to state a cause of action, as fraud is not to be presumed against municipal officers, it was their duty to let the contract, the charge that they knew that only one suitable plant existed is not an allegation nor proof that only one such did exist, the charge that they knew the price to be “ extravagant ” is not an allegation that it was excessive, and the statement that there were other lower bidders is not an allegation that those bidders were able and willing to comply with the conditions of the contract.</p>

<p>Motion to set aside an order in supplementary proceedings, on the ground of a discharge in bankruptcy.</p>

<p>Fraud — Rescission — Presumption of knowledge of contents of instrument signed — Opinion as to legal effect — Expression of judgment as to the situation.</p> <p>Where an agreement between the owner of certain stock and a promoter of its sale in a foreign market provides that the owner shall ultimately receive thereunder both stock and cash, the owner cannot rescind a second agreement, by which he for value surrendered to the promoter his rights under the first, upon allegations that the promoter falsely represented to him that under the first the owner was only to receive either stock or cash — where the owner also alleges that he never saw the first agreement, that it was executed by his attorney in fact, that he had no knowledge of its contents except as it had been communicated to him, and that he believed the agreement to be as written and as it appeared on its face.</p> <p>Parties are presumed to know the contents of an agreement they sign; and if either mistakes its legal effect it is not actionable fraud available to the other.</p> <p>In such a situation as that above stated a party has no right to rely upon the statements of his adversary.</p> <p>It is to be presumed that the attorney of the owner correctly stated to him the contents of the agreement.</p> <p>An alleged statement of the promoter, that it would be impossible for him to advance the sale of the stock unless the owner took it out of a pool into which it had been put and assigned it to him, is only the prompter’s statement of his judgment as to the situation and cannot constitute actionable fraud where he did not suppress any material conditions which the owner had a right to know.</p>

Motions to continue temporary injunctions restraining the defendant from interfering with the plaintiffs in the construction of certain buildings provided that said buildings are built in accordance with the laws in force prior to the 10th day of April, 1901, and in accordance with the plans and specifications as filed and approved by the Commissioner of Buildings for the Boroughs of Manhattan and The Bronx and restraining him from enforcing any of the provisions of chapter…

Action by the plaintiff, suing for himself and all other creditors of the principal defendant, an insolvent corporation, to enforce against it, and certain defendant stockholders of it, a liability for a balance of unpaid subscriptions to the stock, their statutory liability where the capital stock has not been fully paid, and to compel the general assignee of the corporation to account for an alleged balance in his hands.

<p>New York city — Dumping board at foot of E. 80th street enjoined as a nuisance — L. 1887, ch. 697; 1888, ch. 272; 1889, ch. 257.</p> <p>The statutes, under which the city of New York was empowered to condemn land between E. 64th and E. 86th streets on and along the East'river and construct thereon an exterior street and wharf running to the bulkhead line, contemplated the construction and maintenance of these solely for street purposes and the public use.</p> <p>The said statutes do not authorize the city to maintain, along the outer end of a wharf constructed by it at the foot of E. 80th street, a long dumping board for ashes, street sweepings and rubbish, and particularly where it projects far beyond the bulkhead line and has under it compartments to sort out articles of value found in the refuse; and therefore owners before condemnation, abutting on the exterior street at this point, prejudiced by floating ashes and offensive odors, and deprived of the use of the wharf, in case they require it, by the dumping board may restrain the maintenance of it as a nuisance, although the exterior street improvement remains unfinished — it appearing that the city has had four years’ time in which it might lawfully have completed it.</p>

Action to procure the establishment of a right of way, as the plaintiff had adopted it, and for an injunction restraining the defendant from tearing up a pipe, which the plaintiff had laid, or had attempted to lay, beneath the right of way adopted by it.

<p>Telephone corporation — How far the discretionary power of village trustees over poles and wires may he controlled by the court —- Motion papers, for a mandamus, which failed to show a relator — • L. 1890, ch. 566, § 103; 1897, ch. 414, § 89, subd. 9; Code C. P., § 1994. v</p> <p>Notwithstanding the fact that the Transportation Corporations Law gives a telephone company" a franchise, direct from the Legislature, to use the public streets for constructing and maintaining its lines, the Village Law gives village trustees power to regulate the erection of the poles and the stringing of the wires, and as this latter power involves discretion, the Supreme Court, while able to compel its exercise in a proper case, cannot by mandamus control the particular method of the exercise.</p> <p>Where it appeared that village trustees had materially embarrassed or prevented a telephone company in its legal right to use the village streets and had long delayed passing any ordinance in the matter, the court refused to grant the company, in the first instance, a peremptory writ of mandamus requiring the trustees to grant it a permit to erect poles, string wires and conduct business in the village, but gave it leave to renew the motion on other papers if the passage of such an ordinance should be unduly delayed.</p> <p>In view of the provisions of Code C. P., § 1994,- that a State writ awarded upon the application of a private person must show that it was issued upon the relation of that person, the defect, in the motion papers of the company, that they are entitled only in the name of “ The People ” and do not name the company as relator or in any manner, is a mere irregulárity which does not dimmish the right to the writ, upon a proper case made, and cannot in such case preclude its subsequent issue iti the form required by the Code.</p>

<p>Appeal from a judgment entered in the Becorder’s Court of the city of Gloversville in favor of the plaintiff and against the defendant for the sum of ten dollars, for a penalty imposed by the board of health of that city for alleged violation of a regulation adopted by the board of health with reference to the sale of milk within the corporate limits of the plaintiff.</p>

<p>Action for the foreclosure of a mortgage.</p>

<p>Liquor Tax Law — Torm of town clerk’s notice of submission of local option — Resubmission refused where there were only possible slight defects in posting and publishing.</p> <p>A town clerk’s statutory public notice that the local option questions will be voted upon at the next town meeting need not state that all of the four questions will then be voted upon nor need they be set out in full.</p> <p>The notice is sufficient where, under the heading “ Local Option To determine whether liquors shall be sold under the provisions of Section 16, Chapter 367, Laws of 1900, known as the Liquor Tax Law ”> it proceeds to state that a vote will be taken by ballot “ upon said proposed questions ” at the next town meeting. •</p> <p>The statute, In so’far as it relates to notice, is merely directory, and where it appeared that there might possibly have been slight errors in the posting and publishing of some of the notices, the court held a resubmission unnecessary and unjustifiable.</p>

<p>Benefit insurance — Survivorship, where husband and wife die together .— Interest of beneficiary in death benefit an expectancy — Funeral expenses not a lien — State control of foreign corporation — L. 1893, ch. 690, §§ 833, 838.</p> <p>Where a husband and second wife die in the same night from being poisoned by the escape of natural gas from a stove in their room, there is, in the absence of any evidence upon the point, no presumption that one survived the other.</p> <p>The interest, in a death benefit, of the beneficiary is a mere expectancy which is subject to be defeated by a failure to survive the insured.</p> <p>Where a second wife and her husband occupying the relations of beneficiary and insured to a fund, shown by the certificate of incorporation, constitution and by-laws of the insuring corporation, to be intended for the widow, children, relatives or dependents of the insured, died in the same night, it was held that no interest in the fund ever vested in her or in her next of kin, and that, under provisions of the policy controlling distribution in a case where the designation made by the insured failed “ for illegality or otherwise ”, the fund passed to the children of his first marriage.</p> <p>The funeral expenses of the husband and second wife, paid by the administrator of her next of kin, are not a legal charge upon the fund.</p> <p>A foreign corporation lawfully doing business in the State of New York is subject to such of its laws as govern similar domestic corporations.</p>

<p>Motion to continue injunction pendente lite.</p>

<p>Motion for an injunction.</p>

<p>Specific performance of written contract for the transfer of stock — Plaintiff must move promptly and come into court with clean hands.</p> <p>While courts of equity do not absolutely deny their power to compel specific performance of a contract for the transfer of stock, they will not exercise the power where the plaintiff does not come into court promptly and with clean hands, as is the case where it appears that he has slept on his rights for thirty-three months, that during that time the situation of affairs, so far as concerns the real defendant, has changed, and that the plaintiff finally moved only at the promptings" and for the benefit of others, who had indemnified, him against an unfavorable result of his action.</p>

Hearing upon exceptions to reports of a referee appointed to take proof and report upon claims against the defendant corporation. Motions by Daniel Forbes Co., arid Winsted Hosiery Co., for judgment upon remittitur.

<p>Hearing upon writ of habeas corpus.</p>

<p>Motion by defendants to vacate judgment and execution.</p>

<p>Action to recover upon a Canada judgment.</p>

<p>Bankruptcy — When a discharge releases a judgment for the bankrupt’s breach of promise of marriage — His intent in going into bankruptcy immaterial.</p> <p>A discharge in bankruptcy releases a judgment rendered against the bankrupt for breach of promise of marriage where there .was no accompanying seduction nor proof of malice tending to show an attempted injury to character, as, in such case, there is a mere contract debt of record and “ no willful and malicious injuries to the person ”, within the Bankruptcy Act of 1898, § 17, subd. 2.</p> <p>The fact that the bankrupt went into bankruptcy in order to avoid that particular judgment cannot limit the legal effect of his discharge.</p>

<p>Motion for a retaxation of costs.</p>

<p>Appeal from a judgment of the General Term of the City Court of the city of New York, affirming a judgment rendered in favor of the plaintiff entered upon the verdict of a jury, at. Trial Term, and also affirming an order denying a motion for a new trial.,</p>

<p>Appeal from an affirmance by the General Term of the City Court of the city of Eew York of a judgment rendered by a jury at a Trial Term of said court.</p>

<p>Appeal from an affirmance by the General Term of the City Court of the city of New York of a judgment rendered at Trial Term of said court.</p>

<p>Appeal from a judgment of affirmance by the General Term of the City Court of the city of New York, of a verdict of a jury rendered at a Trial Term of said court.</p>

<p>Appeal from an affirmance by the General Term of the City Court of the city of ¡New York, of a judgment rendered at a Trial Term of said court.</p>

<p>Appeal from an affirmance by the General Term of the City Court of the city of New York, of a judgment rendered at a Trial Term of said court.</p>

<p>Appeal from an affirmance by the General Term of the City Court of the city of New York, of a judgment rendered in favor of the plaintiff by a jury at a Trial Term of said court.</p>

<p>Appeal from an affirmance by the General Term of the City Court of the city of Hew York, of a judgment rendered in favor of the plaintiff at a Trial Term of said court.</p>

<p>Appeal from a judgment rendered in favor of the defendant in the Municipal Oourt of the city of New York, seventh district, borough of Manhattan.</p>

<p>Appeal from a judgment in favor of the plaintiff, rendered in the Municipal Oourt of the city of New York, fourth district, borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of the plaintiffs in the Municipal Court of the city of New York, tenth district, borough of Manhattan. Action for negligence.</p>

<p>Appeal from a judgment rendered in favor of the defendant in the Municipal Court of the city of New York, second district, borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of Hew York, second district, borough of The Bronx.</p>

<p>Appeal from a judgment rendered in favor of the defendant in the Municipal Court of the city of New York, eleventh district, borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of the plaintiffs in the Municipal Court of the city of New York, seventh district, borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city-of New York, fifth district, borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of New York, first district, borough of Manhattan.</p>

<p>Appeal from, a judgment rendered' in favor of the plaintiff in the Municipal Court of the city of New York, ninth district, borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of New York, tenth district, borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of' Mew York, sixth district, borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of the defendant in the Municipal Court of the city of New York, eleventh district, borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of New York, fifth district, borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of New York, third district, borough of Manhattan.</p>

<p>Appeal from a judgment' rendered in favor of the defendant in the Municipal Court of the city of New York, third district, borough of Manhattan.</p>

<p>Appeal from a judgment of the Municipal Court of the city of Rew York, first district, borough of Manhattan, rendered in favor of the defendant.</p>

<p>Appeal from an order setting aside a verdict rendered in favor of the plaintiff in the Municipal Court of the city of Rew York, fifth district, borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of the defendant in the Municipal Court of the city of New Tork, sixth district, borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of the defendants in the Municipal Court of the city of Few York, fifth district, borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of Few York, eleventh district, borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of New York, second district, borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of the defendants in the Municipal Court of the city of Mew. York, second district, borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of the defendant in the Municipal Court of the city of Mew York, eighth district, borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of the defendant in the Municipal Court of the city of New York, tenth district, borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of Mew York, 'fifth district, borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of the plaintiff in the Municipal court of the city of Mew York, ninth district, borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of the defendants in the Municipal Court of the city of New York, tenth district, borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of the defendant in the Municipal Court of the city of Eew York, first district, borough of Manhattan. Eeargument.</p>

<p>Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of Eew York, fifth district, borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of New York, third district, borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of the plaintiffs in the Municipal Court of. the city of Hew York, eighth district, borough of Manhattan. Eeargument.</p>

<p>Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of Hew York, fifth district, borough of Manhattan. ,</p>

<p>Appeal from a judgment rendered in the Municipal Court of the city of New York, tenth district, borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of the plaintiffs in the Municipal Court of the city of Sew York, second district, borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of the defendant in the Municipal Court of the city of ISTew York, eighth district, borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of New York, eleventh district, borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of the defendant in the Municipal Court of the city of New York, tenth district,o borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of the defendant in the Municipal Court of the city of Few York, ninth district, borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of New York, second district, borough of The Bronx.</p>

<p>Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of New York, second district, borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of Yew York, first district, borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of Yew York, first district, borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of New York, second district, borough of Manhattan.</p>

<p>Appeal from a' judgment rendered in favor of the plaintiff in the Municipal Court of the city of New York, tenth district, borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of the defendants in the Municipal Court of the city of New York, eleventh district, borough of Manhattan.</p>

<p>Appeal from a judgment in favor of the plaintiffs rendered in the Municipal Court of the city of New York, seventh district, borough of Manhattan.</p>

<p>Appeal from a- judgment rendered in favor of the plaintiff in the Municipal Court of the city of New York, fifth district, borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of New York, first district, borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of Hew York, third district, borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of the defendant in the Municipal Court of the city of Mew York, eleventh district, borough of Manhattan.</p>

Appead from a judgment rendered in favor of the plaintiff in the Municipal Court of the -city of ¡New York, second district, borough of Manhattan.

<p>Appeal from a judgment rendered in favor of the defendant in the Municipal Court of the city of New York, fifth district, borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of New York, fifth district, borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of New York, fifth district, borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of New York, first district, borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of Hew York, first district, borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of the defendant in the Municipal Court of the city of Hew York, sixth district, borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of New York, tenth district, borough of Manhattan.</p>

<p>Appeal from a judgment rendered in the Municipal Court of the city of New York, first district, borough of Manhattan, in favor of the plaintiff.</p>

<p>Appeal from a judgment rendered in the Municipal Oourt of the city of New York, third district, borough of Manhattan, in favor of the plaintiffs.</p>

<p>Appeal from a judgment rendered in favor of the plaintiff in the Municipal Oourt of the city of New York, tenth district, borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of the defendant in the Municipal Court of the city of New York, fifth district, borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of New York, second district, borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of the defendant in the Municipal Court of the city of Hew. York, eighth district, borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of Hew York, tenth district, borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of the defendant ■in the Municipal Court of the city of Wew York, fifth district, ¡borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of Wew York, tenth district, borough of Manhattan.</p>

<p>Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of Mew York, fifth district, borough .of Manhattan.</p>

<p>Appeal from a judgment for the defendant entered upon the verdict of a jury, and from an order denying the plaintiff’s motion for a new trial upon the minutes.</p>

<p>Appeal from a judgment of the City Court of the city of New York in favor of plaintiff.</p>

<p>[Appeal from a judgment entered on a verdict by a jury in favor of the plaintiff, and from an order denying the defendant’s motion for a new trial. The “ trial before the Surrogate ” referred to in the opinion was an accounting in the Matter of the Estate of Frank Yoran.</p>

<p>Appeal from an order denying defendants’ motion for a new trial, on the ground of newly-discovered evidence.</p>

<p>Appeal from a judgment in favor of plaintiff entered on a verdict.</p>

<p>Appeal from a judgment in favor of plaintiff, entered upon a verdict rendered at trial term, and also from an order denying defendant’s motion for a new trial.</p>

<p>Appeal from an order adjudging the defendant guilty of willful contempt of court.</p>

<p>Appeal from a judgment entered upon a verdict and from an order denying a motion for a new trial.</p>

<p>Appeal from a judgment entered upon a verdict and from an order denying a motion for a new trial.</p>

<p>• Appeal from a judgment entered upon a verdict and from an order denying a motion for a new trial.</p>

<p>Appeal from a judgment entered upon the report of a referee.</p>

<p>Appeal from an order requiring plaintiff, as a non-resident, to give security for costs.</p>

<p>Appeal from a judgment entered upon a verdict directed by the court.</p>

<p>Appeal from a judgment entered upon a verdict and from an order denying a motion for a new trial.</p>

<p>Appeal from an order denying a motion to vacate an order for the examination of the defendant before trial</p>

<p>Appeal from judgment entered upon dismissal of the complaint at trial term at the close of the case.</p>

<p>Appeal from order denying appellant’s motion to vacate an attachment upon the ground that the papers upon which the same was granted were insufficient.</p>

<p>Appeal from judgment upon verdict and order denying motion for new trial.</p>

<p>Appeal from judgment' entered upon verdict, and from order denying defendant’s motion for a new trial.</p>

<p>Appeax from order denying appellant’s motion to modify a warrant of attachment.</p>

<p>Appeax from order of Special Term, directing compulsory reference of the issues.</p>

<p>Appeal from a judgment entered upon a verdict, and from an order denying motion for a new trial.</p>

<p>Appeal from judgment entered upon order dismissing the complaint at the close of plaintiff’s case at Trial Term.</p>

<p>Appeal from a judgment entered upon a verdict in favor of the plaintiff.</p>

<p>Appeal.from a judgment entered in favor of the defendant upon the dismissal of the plaintiff’s complaint at the close of the plaintiff’s case.</p>

The motion was made upon an affidavit accompanying an order to show cause granted by the trial justice after he had denied a motion for such new trial upon the rendering of the verdict.

<p>Appeal from an order of the City Court of the city of New, York, denying defendant’s motion for a bill of particulars.</p>

<p>Appeal from an order denying motion to vacate an order of arrest.</p>

<p>Appeal from a judgment entered upon a verdict in favor of the plaintiff, and from an order denying a new trial.,</p>