Volume 37 — New York Miscellaneous Reports

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

Action by the plaintiff wife against the defendant husband and the executors who act as such under the will of the father of the husband, to reach a part of the beneficial income to be paid as. directed by the will to the husband.'

Application by a depositok and creditor of the Commercial Bank for an order directing the Attorney-General to bring in as parties defendant in this action the various stockholders of said bank, so that their individual liability towards making good the deficiency may be determined herein.

<p>Action to recover the amount of a deposit.</p>

<p>Trademark — “ Matzoon ”, a fanciful designation — Abandonment thereof not shown by the addition of “ Zoolak ”.</p> <p>A person who, in 1885, was the first to give commercial value in this country to the name “ Matzoon ” as a designation of medicinal fermented milk is entitled, by himself and his successor, to an exclusive property -in “ Matzoon ” and in the use of it as a trademark and may restrain others from using it for any purpose.</p> <p>The term may properly be deemed a fanciful designation although an article of food of a similar nature but different consistency has long been in use in Armenia and in the Bast under the names of Madzoon or Maadzoon.</p> <p>The subsequent use of the word “ Zoolak ”, in connection with the word “ Matzoon ”, as a further distinction and precaution, does not necessarily indicate any intention upon the part of the owner of the preparation to abandon the use of the word “ Matzoon ”.</p>

<p>Annulment of marriage for fraud — When an amicus curias may attack the decree for collusion — Confession of defendant insufficient — Subsequent cohabitation a bar.</p> <p>A mother will, as an amicus mrice, be permitted to attack a decree annulling, for fraud, the marriage of her infant daughter where it is shown to the court that the decree was procured by collusion between the infant and her husband.</p> <p>Evidence of such collusion stated and considered.</p> <p>A marriage cannot be annulled upon the confession of the defendant alone and the fact that the plaintiff was permitted by the referee to confirm the confession does not alter the rule or corroborate the confession.</p> <p>A marriage cannot be annulled for fraud where the parties after the commencement of the action voluntarily cohabited as husband and wife, with full knowledge of the facts constituting the fraud.</p>

<p>Motion for a preference.</p>

<p>Foreclosure and surplus moneys — A judgment creditor of the mortgagor is not entitled to the surplus of a deposit which a defaulting purchaser had made against any loss on a resale.</p> <p>Where property has been sold in foreclosure upon the terms that the purchaser shall be liable for any deficiency which may occur upon a resale, a judgment creditor of the mortgagor is not entitled to a surplus of a deposit, made at the sale by a purchaser who failed to complete, and remaining after the resale, as the limit of her liability is the deficiency and she is entitled to the surplus because the creditor of the mortgagor has no lien on it and she has met the deficiency as agreed.</p>

<p>Equity — Subrogation in partnership — Payment of debt — Parties — Demurrer for insufficiency.</p> <p>Where a partnership has been dissolved and an 'account, stated between the two partners, shows one of them to be the creditor of the other, the creditor partner, on paying an outstanding firm debt, will be entitled in equity to be subrogated to- the firm creditor’s rights in mortgages which the debtor partner gave him to secure the firm debt.</p> <p>It is not necessary that the creditor partner pay the debt, or make a tender, before bringing an action for subrogation.</p> <p>The right of subrogation being in such case an individual right the debtor partner need not be made a party plaintiff and certainly should not be where he has made an agreement with the firm creditor which is fraudulent as to the plaintiff.</p> <p>Parties, to whom the firm creditor has since conveyed the equity of redemption, need not and should not be made defendants in the action.</p> <p>The objection that a complaint does not state facts sufficient to constitute a cause of action is not good on demurrer if the complaint states a cause of action either legal or equitable.</p>

<p>Partnership — Not illegal in New York city because of one partner’s failure to procure a plumber’s license under L. 1896, eh. 803 — Accounting granted the licensed partner.</p> <p>A partner, not licensed in the city of New York as an employing or master plumber under L. 1896, ch. 803, cannot defeat an action for an accounting brought against him by his partner, licensed and who did all the firm plumbing work, for an accounting of their plumbers’, steam-fitting and roofing business in the city of New York, upon the ground that their partnership was a violation of the statute (§§ 1 and 2), and this because the-plaintiff at least has complied with the statute, the acts forbidden by it are only mala proMUta, and the defendant alone has violated the statute and incurred its penalties.</p> <p>The maxim that, in equal fault the condition of the defendant is better, does not apply to such a situation.</p>

<p>Telephone company — A city’s right to compel overhead wires to he placed in subways will not he decided on affidavits to continue an injunction pendente lite.</p> <p>Where affidavits upon the part of telephone companies operating by overhead wires in a city, made in actions brought by them to restrain it from enforcing certain ordinances and carrying out certain agreements made by it with a third party known as the Glen Telephone Company, alleged that the city had thereunder required the affiants to remove their wires and poles from the streets within thirty days and place the wires in subways to be constructed by and rented of the Glen Telephone Company, that the affiants had no control over these subways, that the subways were improperly constructed, dangerous and unsafe, that the affiants had certain vested rights in the city streets with which the city could not interfere, and that the removal of the wires and poles and subsequent replacement of the wires in the subways would cause an enormous expense which the affiants ought not to bear unless it Was shown that the change was necessary and diminished the existing .danger from the wires, and the affidavits, upon the part of the city, alleged that the conduits were properly constructed, lessened the danger, 'and that the city streets were so incumbered by said overhead wires as to endanger the lives of the citizens, the court refused to decide the matter on affidavits and continued an injunction pendente lite, but only upon condition that the telephone companies would agree to the immediate appointment of a referee in their actions, go to trial before him on ten days’ notice and thereafter proceed with reasonable rapidity to a conclusion of the trial or trials.</p>

<p>Taxpayers’ action to restrain the defendants from carrying out the provisions of a certain contract made by the defendant, the City of Albany, with the defendants Warner & Quinlan, for the pavement of a portion of Madison avenue in said city with asphalt.</p>

<p>Motion to set aside an order of this court, granted January 26, 1901, passing the accounts of and discharging the receiver in supplementary proceedings instituted by the plaintiff under a judgment in her favor.</p>

<p>¡Promissory note — The cause of action is indivisible.</p> <p>The obligation of the maker of a promissory note is indivisible, i. e., enforcible by one action and no more, and therefore he cannot be sued upon his note by one who has only a fractional interest in it.</p>

<p>Motion to continue, pendente lite, a temporary injunction restraining the defendant from paying the salaries of the sheriff, county clerk and register of the county of Bangs.</p>

<p>Pledge — Bights of pledgees of certificates of stock forged by a husband after his wife’s pledge of the genuine certificate — Estoppel of wife — Effect of a renewal note.</p> <p>Where a wife, after duly pledging her bank stock for a loan by a contract in writing and delivering the genuine certificate of it endorsed in blank to the pledgee, suffers her husband to raise moneys of others on his notes through certificates of the same block of stock subsequently forged by him, she entitles parties who advanced these moneys in good faith to share in her equity, in the stock, in the order of their advances.</p> <p>A pledgee which merely- renews a note secured by one of the forged certificates, without surrendering the certificate, does not thereby discharge the note or release the lien it has on the fund.</p>

<p>Benefit order — Payment by it of a death benefit to its own “ trustee ” does not bind the parties entitled to the benefit — Violation of a condition precedent requiring a certificate that the member is entitled to the benefit.</p> <p>Where the constitution of an incorporated benevolent order provides that every member who has become entitled to a death benefit shall be entitled in case of his death to the receipt by his heirs of $1,000 from the order, a supreme lodge, composed of delegates elected from the membership generally in the United States and authorized by its own by-laws to call upon the subordinate lodges to contribute their proportion of a death benefit falling due, they to pay their assessment to a so-called “ trustee ” appointed by the subordinate lodges of the particular State and, he to pay the grosá sum to those entitled to the benefit, through the subordinate lodge of which the deceased was a member, does not discharge itself of Iiability to the heirs of a member by paying his death benefit - to a “ trustee ” so designated, as the “ trustee ” is not the agent of the heirs but is the agent of the subordinate lodges which, for the purposes of the death benefit, are to be deemed local agencies of the corporation itself.</p> <p>Where the constitution of the order specifically requires every one desiring to become entitled to a death benefit to apply for it and procure a certificate from the supreme lodge that he is entitled to it, a member who has not complied with the requirement debars his heirs from the death benefit and the fact that, after his death, the subordinate lodge - notified the supreme lodge that he was entitled to the death benefit is not material.</p>

<p>Misjoinder of causes of action — The agent and his undisclosed principal may be sued in the same action but there can be only one ' satisfaction.</p> <p>, There is no misjoinder of causes of action where shippers of goods sue, in the same action, agents (of carriers) as well as their undisclosed but subsequently discovered principals, for delivering ' the goods in a damaged condition contrary to the terms of the bills of lading as, although there can be but a single satisfaction for the breach, the shippers may proceed against both agent and principal until they have obtained satisfaction from one of them.</p>

<p>Bankruptcy — Preferential transfers — Creditor’s duty to inquire as to his debtor’s solvency.</p> <p>A bankrupt’s trustee cannot set aside, as preferential, transfers made by the bankrupt, before voluntarily becoming such, to a creditor, where the bankrupt had at all times concealed from him the fact that he was largely indebted to a third person, where the creditor acted in good faith and relied in making his advances upon statements and personal examination of the books of the bankrupt showing him to be solvent, where the bankrupt would have been solvent at the time of the transfers but for the debt he had concealed, and where his trustee does not show that any facts or circumstances were brought home to the creditor which would have put an ordinarily prudent man upon inquiry as to the bankrupt’s solvency.</p>

<p>Action for an accounting between” partners and for the interpretation of an agreement.</p>

<p>Crimes — Penal Code, § § 344a and b, relative to playing “ policy ”, are constitutional — When a constitutional question may be raised on a writ of habeas corpus, without a writ of certiorari.</p> <p>Sections 344a and b of the Penal Code, relative to playing “ policy ”, are constitutional.</p> <p>Where there is no issue of fact and the jurisdiction of the committing magistrate and his authority depend upon the wording of the charge set forth in the complaint, the constitutional question may be raised upon a writ of habeas corpus taken out by the accused and an additional writ of certiorari is unnecessary.</p>

<p>Crimes — Prostitution in a tenement house of a city of the first class — L. 1901, ch. 334, § 141 — Commitment when not reviewed.</p> <p>A woman violates the Tenement House. Act (L. 1901, ch. 334, § 141) if she commits prostitution in her apartment in a tenement house in a city of the first class.</p> <p>Where a magistrate of the city has found the fact of her prostitution, his commitment of her will not be reviewed on writs of habeas corpus and certiorari where he had jurisdiction of the,charge and authority to impose the sentence.</p>

<p>Writs of habeas corpus and certiorari.</p>

The issues of law, raised by the demurrer herein, came on to-be heard by the court at a Special Term, Part V thereof, on the 6th day of January, 1902. The facts sufficiently appear in the-opinion. ...

Action for damages arising from defendant’s failure to furnish proper catalogues to plaintiff’s assignors pursuant to agreement.

<p>Negligence — Verdict of $200 for the death of a boy, aged six, set aside as inadequate.</p> <p>A verdict of two hundred dollars is insufficient to compensate the next of kin for the death by negligence of a boy aged six years, a child of a shoemaker with small earnings.</p>

<p>Contract — Restraint of trade — Monopoly — Injunction.</p> <p>A contract for the sale of a business of selling fish — a commodity practically limitless — and its good will, limited as to time and territory and made for a valuable consideration, restraining the vendor from further prosecution of the business is not in general . restraint of trade, does not tend to create a monopoly, is assignable, and is enforeible by the assignee.</p> <p>The fact, that the assignee of - the vendee subsequently purchased the business and good will of rival dealers in fish and made similar 'restrictive contracts with them, does not make the original contract invalid.</p> <p>Where the vendor, after selling his business, formed a corporation with other persons, who either knew of the sale or had made similar restrictive contracts with the vendee, and the corporation continued the fish business, the court restrained the vendor, the corporation and its incorporators, from continuing that business pendente lite, and also restrained certain defendants, who were not parties to the original contract nor bound to the vendee by restrictive contracts, from, carrying on the fish business in conjunction with the defendants definitively restrained. .</p>

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

<p>Trust — Accumulation of rents and profits during minorities — Support of infant beneficiaries not provided for — Suspension of power of alienation — Vesting — Provision as to survivorship on failure to reach majority.</p> <p>By the fifth clause of his will a testator bequeathed all his re-siduary estate to trustees with directions to them to manage, invest- and reinvest it for the use and benefit of his granchildren until they ■severally became twenty-one, directed that the whole fund be equally divided and paid 'over to them -as they severally became twenty-one, and further provided that if either died before that age the whole fund. should go to and belong to those who attained that age. Three infant grandchildren survived the testator.</p> <p>Upon a construction of his will by the surrogate,</p> <p>Held, that the testator intended an accumulation of rents and profits for only such of his grandchildren as were in being at his decease and did not contemplate an invalid accumulation — for afterborn grandchildren, beginning at his decease and before their toirth.</p> <p>That the fact, that the trust did not authorize the trustees to apply -any part of the income or of the corpus to the support of the infants, was not material as a court of equity could make them a proper allowance and the statutes provided for such an emergency.</p> <p>That the power of alienation was not improperly suspended as the whole estate vested at -the testator’s death in the three grandchildren as tenants in common, the trustees taking no title except such as. was necessary .to control, management, investment and reinvestment.</p> <p>That the will contained a present gift to the grandchildren and not a mere direction to divide and distribute at a future time.</p> <p>That the validity of the provision as to survivorship need not be passed upon, the contingency not having occurred, but that the fifth clause was not invalidated thereby as the share of a grandchild dying before the age of twenty-one would go to the person presumptively entitled to .the next eventual estate.</p>

<p>Application for an absolute writ of prohibition,</p>

<p>Motion to open a default and to vacate a judgment for costs, upon the dismissal of a complaint.</p>

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

<p>Action by wife for. a separation — Cruelty — Wife committed to an asylum by her husband because he believed her to be insane — Motive.</p> <p>Although a husband has caused his wife to be committed to an asylum she cannot subsequently make that a ground1 for an action for a separation from him, whether for cruel and inhuman treatment or because it is unsafe or improper for her to cohabit with him, where it appears that she had been subject to the delusion that he intended, to poison her, that he had received medical advice, at or before the time of her commitment, that she was suffering from an incurable form of insanity, which might become violent, and that he had had her committed in an honest desire to benefit her and because he really believed it necessary.</p>

Action to set aside a bond and mortgage made by plaintiffs Isaac Frank and Annie Frank to' Samuel Frank. Each-of these three parties owned an undivided one-third interest in the property upon which the mortgage was made. Further facts appear in the opinion.

<p>Action by a mother to annul her son’s marriage — His adultery not a defense to the wife nor a counterclaim to her for a divorce — Demurrer to answer.</p> <p>A counterclaim interposed by a wife, to an action brought under the statute by her mother-in-law to annul her son’s marriage upon the ground that he had not attained the age of legal consent, alleging the son’s adultery and demanding a divorce from him, is demurrable for insufficiency as the son is not a party to the action and relief against him is impossible therein. :</p> <p>Such a counterclaim constitutes no defense to the action of the mother, whatever force it might have in a matrimonial action brought by the son.</p>

<p>Tbial of an issue of law raised by demurrer to the answer that it is insufficient in law on the face thereof.</p>

<p>Pleading — Insufficient defences to slander — Justification.</p> <p>Where the plaintiff sues the defendant for having said to divers persons that the plaintiff stole diamonds from a company of which the defendant was a director, an alleged defen.ee, not pleading the truth in justification nor any facts to rebut malice in making the charge, but merely reciting things which the defendant has heard in disparagement of the plaintiff from employees of the company and further alleging that the defendant saw the plaintiff’s brother steal some diamonds from the company, is bad on demurrer.</p> <p>Matter pleaded either as a justification or in mitigation, in order to be relevant, must relate to the particular charge upon which the action was brought.</p> <p>A plea of privilege, in that the said things told by the employees were spoken to his fellow directors by the defendant is no plea of privilege. Such a plea can only be concerning the words of slander alleged in the complaint.</p>

<p>Trial of issues of law raised by demurrer to a defence and a counterclaim set up in the answer.</p>

<p>Trial of an issue of law raised by demurrer to the complaint that it does not state facts sufficient.</p>

Action on a judgment for $263.11 entered in 1885. The defendant pleaded payment, and gave in evidence a receipt made March 2, 1894, by one of the plaintiffs for $75 from the defendant “ in full of all claims to date ”, and a like receipt made on the same day by the other plaintiff for $25 “ to satisfy my part of judgment ” (describing it). The defendant testified that these were the only payments made on the judgment.

<p>• Action to recover of the defendant as endorser of two notes for $500 each. The plaintiff made a written contract to convey his house and lot to one Hutchings on a. day therein named. It was agreed' therein that $1,000 of the purchase price should be paid by the said purchaser giving his two promissory notes for $500 each to the plaintiff. On the contract day the said notes were tendered, but the plaintiff refused to accept them and deliver the deed of conveyance unless the said purchaser should get a responsible endorser on the said notes. The defendant, who was the broker who negotiated the sale, and was present and participating in the business, thereupon endorsed the same and the deed was delivered. The defendant testified that to induce him to endorse the plaintiff told him that he would not hold him responsible on his endorsement. This was denied and the case was submitted to the jury on the single question of fact thus presented, and a verdict was rendered for the plaintiff. The parties stipulated, however, before the submission to the jury that the court should reserve the question of law, and set aside the verdict and direct a verdict the other way, if it should think fit.</p>

Actiow for money had and received to the alleged use of the plaintiff’s assignors. Motion for new trial upon dismissal of the complaint for insufficiency of proof.

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

<p>Charter of cities of the second class — The president of the common council has a right to vote on the designation of the official newspapers of the city.</p> <p>The charter of cities of the second class (L. 1898, eh. 182, §§ 13, 29) makes the president of the common council of such a city a member thereof and gives him as such a right to vote upon the question of designating the official newspapers of the city.</p> <p>The right thus expressly given him is not impliedly taken away by section 14 of said charter declaring “ that the president may vote like other members of the common council upon all resolutions and ordinances submitted to the body for its action in case of a tie vote.”</p>

Trial of an issue of law raised by a demurrer to a defence. Action by a taxpayer against the six commissioners of the new East River Bridge, and the Pennsylvania .Steel Company to annul a contract made by the said commissioners with the said company for the doing of certain work and furnishing of certain material in the construction of the said bridge, and to require the money already paid thereon to be refunded to the city; the city of Hew York and its mayor and comptroller…

<p>Action for partition and other relief.</p>

<p>Action to reform a contract.</p>

<p>Action by a trustee in bankruptcy to set aside as fraudulent a sale made by the bankrupt before bankruptcy.</p>

<p>Motioit for a new trial.</p>

<p>Practice — Conduct of a representative action when committed to a plaintiff added after suit begun.</p> <p>A person who has brought a representative action has a right to continue, discontinue or compromise it until a person similarly situated has become a party plaintiff but thereafter he can do nothing in derogation of the rights of the latter.</p> <p>Accordingly where the original plaintiff unreasonably delayed trying the action the court committed its conduct to a party, added after suit begun, upon his giving a bond to the original plaintiff to secure payment to him of a ratable share of the entire expense of the action, whenever that should be determined.</p>

<p>Demtjbbeb to complaint.</p>

<p>Benefit society — Distributing among members circulars criticising officers not a ground for expulsion.</p> <p>The distribution among members of a benefit society, just before an election therein, of circulars criticising officers of the society and proposing an opposition ticket, cannot justify expulsion of the member who made the distribution where no such action is authorized by the constitution of the society.</p> <p>Such a distribution does not violate a pledge, contained, in the ritual of the society, that a member will not bring charges against the society, its officers and members, through the public press or in any public manner before exhausting the means of redress given by the constitution of the society.</p>

<p>Action for an injunction to restrain the village of Fayetteville and the Syracuse & Suburban Eailroad Company from further interference with the turnpike road constructed by the plaintiff upon Genesee street.</p>

<p>Bankruptcy — Bankrupt Law of 1898, § 67, subd. f, applicable to a voluntary bankrupt — Lien annulled thereby irrespective of the character of the debt — Discharge releases a judgment for converting moneys as a factor.</p> <p>The provisions of the Bankrupt Law of 1898, § 67, subd. f, that all levies, judgments, attachments or other liens obtained in legal proceedings against a person who- is insolvent, at any time within four months prior to the filing of a petition in bankruptcy against him, shall be deemed null and void in case he is adjudged a bankrupt, and the property affected by the levy, judgment, attachment, or other lien shall be deemed wholly discharged and released from the same, and shall pass to the trustee as a part of the estate of the bankrupt, apply as well to cases of voluntary as to those of involuntary bankruptcy.</p> <p>If a judgment is recovered against a bankrupt, voluntary or involuntary, within four months of the filing of the petition in bankruptcy, the judgment creditor loses any lien he may have acquired thereunder and the trustee is entitled to the property or its proceeds, whether or not the judgment is of a character which the bankrupt’s discharge releases.</p> <p>A judgment recovered against a bankrupt for converting moneys received by him upon sales on commission is released by his discharge as such a judgment is not within any of the exceptions created by the Bankrupt Law, § 17, subds. 2 and 4.</p>

<p>Strays upon highways, Code C. P., oh. 19, tit. X — New trial in County Court in a special proceeding — Presumption that the value of twenty-eight cattle exceeded fifty dollars.</p> <p>In view of the fact that the statute as to animals straying upon a highway requires payment out of the proceeds of their sale of costs, justice’s fees, damages and a fine for the benefit of the poor of five dollars for each animal, where a woman obtains, in a contested special proceeding taken under the statute, a justice’s order declaring her entitled to such relief against twenty-eight head of cattle that entered from the highway and trespassed upon her premises, it will be assumed for the purposes of an appeal by their owner that their total value, although not shown, exceeded fifty dollars and hence he is entitled to. a new trial in the County Court and is not limited to an appeal from the order.</p>

<p>Pleading — negative pregnant — Failure to deny not assisted by allegations in a defence — Misjoinder of causes of action.</p> <p>Where the directors of a membership corporation are sued upon their statutory liability for goods sold to the corporation during their term of office and the complaint alleges that each and all of them were directors during the period of the sales, an answer upon the part of some of them denying this allegation in Meo verla is a negative pregnant with the truth of the allegation of the complaint that they were directors during the period, and is not a denial thereof.</p> <p>Facts alleged in a defence, inconsistent with and contradictory of allegations of the complaint, cannot supply a failure to deny such! allegations in due form.</p> <p>A denial cannot be a material part of a defence.</p> <p>It is not a misjoinder of causes of action for the vendor to sue, for the whole amount due him from a membership corporation, more of its directors than are liable therefor; the only effect is that the complaint must be dismissed as to those not shown liable.</p>

Action for damages for libel. Motion for a new trial, the complaint having been dismissed for not stating a cause of action. The publication complained of is that the plaintiff had once suffered from consumption, but had been discharged as cured by a certain lung cure establishment which is named.

<p>Action for an accounting of the trust funds alleged to have been held by defendant’s testator.</p>

<p>Action for partition.</p>

<p>Motion for the modification and confirmation, as modified, of the report of a referee, taking and stating the account of an assignee. Exceptions to the report of a referee.</p>

<p>Action to foreclose a mechanic’s lien.</p>

Action by the plaintiff, as trustee in bankruptcy of the firm of Lesser Brothers (composed of Tobias, Israel and Simon Lesser), and of the Lessors individually, to set aside certain judgments, confessed by said firm in favor of some of the defendants, respectively, and the transfer of a portion of the accounts of said firm to defendant Marcus A. Adler; also conveyances of real estate made by two members of said firm to defendant Lilianthal; also certain proceedings had in an…

<p>legacies — When charged upon land — Mortgaging the land to pay them.</p> <p>Where a testator, having an undivided half interest in very valuable real estate and personalty insufficient to pay his debts and familiar with the condition of his estate, gave by his will and codicils legacies amounting to $230,000, principally in recognition of services rendered him by the legatees, and also gave his executors and trustees power of sale to satisfy legacies, the court considered that he intended to charge them upon his real estate.</p> <p>Where the sister of the testator had the use for life through trustees of the other half of the real estate and his will gave her in trust a life interest in his own half and also gave his executors power to mortgage “ for the purpose of facilitating the management, preservation and productiveness ” of his estate and further authorized them to join with his sister’s trustees “ in any instrument intended to conserve or advance the interests of both estates ”, the court considered that the executors and trustees of the testator were thereby authorized to mortgage his undivided interest in order to pay the legacies he had given.</p>

<p>Motion by defendant to vacate execution, and to stay proceedings thereunder, etc.</p>

<p>Equity — Basis of an action for an accounting.</p> <p>Where there is a duty to account and no basis for a recovery until an accounting has been had, a suit in equity will lie.</p> <p>Accordingly held, that equity was properly invoked to determine the amount due an employee for “ one-third of the net profits of all the litigation he may bring into the office ” of his employers.</p> <p>Suit in equity for an accounting and to recover the amount found -due.</p> <p>The plaintiff as party of the second part and Washhurn & Sickles, attorneys at law, entered into the following agreement in writing:</p> <p>“ The said party of the second part is to enter into the employ of the parties of the first part at a salary of $18 per week. The party of the second part- agrees to use his best endeavors to obtain business and litigation, particularly elevated railroad litigation, and all such suits are to be brought in the name of Wash-bum & Sickles. In addition to the compensation herein provided for, the said party of the second part is to receive as a further compensation one third of the net profits of all the litigation that he may bring into the office.”</p> <p>The $18 was paid regularly; and the relation between the parties having been severed this is an action for an accounting to ascertain the profits made on the litigation brought by the plaintiff, and to recover his share.</p> <p>Before any witness was sworn at the trial the defendants moved that the case be sent to the jury calendar, claiming, that a suit in equity does not lie, and that the action is one at law.</p>

<p>Contract — Architect’s certificate — Performance — Delay.</p> <p>Where a contractor has made substantial performance of a building contract and no reason appears why the architect of the owners, constituted their agent by the contract, should have refused to give a certificate, its absence will not be permitted to prejudice the contractor.</p> <p>Where the contract fixes, no time limit for performance, a delay of twenty days, caused by a strike of the workmen of the contractor, cannot prevent his recovery as performance within a reasonable time is in such case sufficient.</p> <p>Such a delay should not in any event be permitted wholly to defeat the contractor where the contract gave the owners, in case of his unreasonable delay, the right- either to complete the work at his expense or terminate the contract.</p>

<p>Motion to confirm a referee’s report in an action for divorce.</p>

<p>Inspection — Granted executors, against a corporation, to determine the value of its stock for the transfer tax — Mandamus.</p> <p>Executors and trustees of a testator who in his lifetime owned more than a quarter of a corporation’s capital stock, having no market value, have, for the purposes of a pending transfer tax appraisal of his estate, a right to inspect the books of the corporation to the end that they may ascertain and be able to testify to the value of his stock therein; and the facts that the parties are and long have been unfriendly and rivals in business will not prevent the issue of a peremptory writ of mandamus requiring the corporation to exhibit it» books where the executors and trustees allege that they have at all times been refused information as to the affairs of the corporation and deny its charges that their application for an inspection is made in bad , faith and is really an attempt to learn its business methods and trade secrets.</p>

<p>Action by an attorney to recover for professional services.</p>

<p>Surrogate’s Court — Interest on an administrator’s debt to his intestate.</p> <p>An administrator indebted to his intestate, his father, at the time of his death upon matured outstanding bonds secured by mortgages given to him by the administrator and bearing five per cent, interest, is chargeable as against the next of kin with interest on the unpaid principal at the same rate up to the date of the decree made on his judicial settlement.</p> <p>Where he has never paid anything on the debt since the death of the father he cannot stop interest, as of the time of his own appointment as administrator, by crediting the estate as of that date with the amount then due on the bonds and mortgages for principal and interest, as for so much money in his hands, and charging himself with the same amount as a payment on his own distributive share in the estate.</p> <p>Such a method of computation is not authorized by Code O. P., § 2714, declaring that “ the naming of a person executor in a will does not operate, as a discharge or bequest of any just claim which the testator had against him,” etc.</p>

<p>Services — Hiring for an indefinite time — Wages payable weekly.</p> <p>A contract for services for an indefinite time at a fixed sum per week may be terminated by either party at the expiration of any week.</p> <p>Appeai from a judgment entered upon a verdict in favor of the plaintiff, and from an order denying a motion for a new trial.</p> <p>Lewis F. Wilson (C. Walter Artz, of counsel), for appellant.</p>

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

Action of ejectment. Motion by the defendants to strike out allegations of the complaint for being irrelevant and redundant.

<p>Injunction — Not granted to assist a company engaged in selling tips on horse races — Illegality.</p> <p>The Supreme Court will not lend its writ of injunction to assist a company, engaged in the business of selling tips on horse races, in preventing its customers from reselling the tips to others at a lower price — in alleged contravention of the agreement under which the company has sold the tips to the said customers.</p>

<p>Action to recover damages for the breach of a contract of employment. “</p>

Action to determine who is entitled to the fund arising out of an insurance policy, issued by the Northwestern Mutual Life Insurance Co. upon the life of Morris R. Merchant for $5,000, made payable, first, to Mary A. Merchant, his wife, and, in case of her decease, before the death of said Merchant, to his heirs-at-law.

<p>Action upon an undertaking.</p>

<p>Action of ejectment.</p>

This is an application under section 2471a of the Code of Civil Procedure to compel the delivery of books and papers belonging to the office of sheriff of Kings county. The applicant was duly elected as sheriff of Kings county, and qualified and entered into the office on January 1, 1902.

He ARIKH on a traverse to a return to writs of habeas corpus in two cases, granted March 14th, 1902. The relator was taken and detained in custody by the respondent Dike claiming to act as sheriff of Kings county, and on said March 14th he produced him in answer to the writ and made return that he so took and detained him under an execution against his person in a civil action, which he exhibited.

<p>Crimes — “ Disorderly conduct ”— Distinguished from “ Disorderly person.”</p> <p>There is no such offense as “ disorderly conduct ” in the Penal Code or any general statute.</p> <p>Certain provisions of the Consolidation Act (L. 1882, eh. 410), perhaps kept alive by the New York city charter of 1807, define certain ' acts as constituting disorderly conduct or disorderly conduct “ that tends to a breach of the peace,” but in order to hold a person upon such a charge the information should set out the particular acts which bring the charge within the Consolidation Act.</p> <p>The offense of being a “ disorderly person ” is defined by the statutes and is a different matter from “ disorderly conduct.”</p>

<p>Benefit society — By-law reducing’ the benefit in case of suicide, obnoxious to vested rights.</p> <p>Where an order, organized to relieve its sick and distressed members and provide for the families and dependents of such of them as might die, issues a certificate to the wife of a member upon his agreement to comply with all laws of the order “ now in force or which may hereafter be adopted ” and he thereafter commits suicide, it cannot impair the vested rights of the widow in the stipulated death benefit and reduce her recovery by the contention that thirteen years after the certificate was issued the supreme council of the order, under a power reserved to it in its constitution to alter or amend the laws covering its benefit fund, enacted a by-law reducing the death benefit in case “ the member shall die by suicide, sane or insane.”</p>

<p>Action to foreclose a mortgage.</p>

<p>Divorce — Refused where the facts were as consistent with innocence as guilt.</p> <p>A husband will be denied a divorce where the evidence of the wife’s alleged adultery is entirely dependent upon inferences from facts which, in the light most favorable to him from his point of view, are as consistent with her innocence as with her guilt.</p>

<p>Application for an order to show cause.</p>

<p>Motion for mandamus.</p>

<p>Foreclosure — Kent, as between a receiver of the rents and a tenant who had paid them in advance — Contempt.</p> <p>A tenant of mortgaged premises is not guilty of contempt in refusing to pay rent to a receiver subsequently appointed in an action to foreclose the mortgage and therein declared solely entitled to the ■ rents pendente lite where the tenant, merely to accommodate the owner of the equity of redemption and not eollusively, has paid him upon his receipt therefor five months’ rent in advance by promissory notes, all of which the said owner had procured to be discounted and had converted into cash before the receiver’s appointment.</p>

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

This action was brought by the plaintiff corporation against the two defendants, Brantingham and Thaxter for an inter-pleader. The defendants are rival claimants to 400 shares of stock and the accrued dividends thereon, of the plaintiff corporation. A judgment of interpleader was consented to by all parties at the trial, and there remains to be here determined the respective rights of the two defendants.

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

Action to recover $182, the value of certain material furnished by plaintiff for the foundation of one of defendant’s greenhouses in (Prospect Park, borough of Brooklyn.

<p>Usury — In. contracts relative to annuities.</p> <p>Contracts relative to annuities if made in good faith and not designed to conceal usurious interest are not within the statute of usury because an annuity is regarded as property which may be sold on such terms as the parties may agree upon, but a contract for a loan upon an annuity, converted into a sale of the annuity in order to avoid the law, is within the condemnation of the statute.</p> <p>A transaction under which the annuitant received less than $2,700 for annuities presumably worth $20,400 set aside.</p>

<p>Covenant — Against the erection of a “ tenement-house ” not violated by the erection of a seven-story apartment house — Inapplicability of It. 1867, ch. 908, § 17.</p> <p>A covenant created in 1873 forbidding the erection upon certain premises of a “ tenement-house ” is not violated by the subsequent erection thereon of seven-story modern apartment houses containing on each floor two separate and complete apartments designed for the use of families of some means.</p> <p>The word “ tenement-house ”, in such a covenant, is to be construed according to its plain, ordinary and popular sense and not according to the definition in L. 1867, ch. 008, § 17, declaring that “ a tenement-house within the meaning of this act shall be taken to mean and include every house * * * occupied as the home or residence of more than three families living independently of another, and doing their cooking upon the premises</p>

<p>Foreclosure — Equities — Estoppel.</p> <p>Where the owners of a tract of land made an unrecorded executory contract with one Hitchcock for the sale to him at the end of three years of what was left of the tract, provided he had then sold at least half of it, and also thereby authorized him to lay out the tract and contract to sell lots in it and that upon certain payments to them they would give deeds to purchasers, and permitted him thereafter to act as absolute owner of the tract, the court considered that a woman, who had thereafter contracted with Hitchcock for the purchase of a lot in the tract | and who had nearly paid up the installments of the price when he failed and who had then offered to pay him the balance unpaid, was upon such payment to his general assignee entitled to a deed from him of the lot as against an assignee of a mortgage, covering the lot, which Hitchcock had thereafter given to the owners of the tract, upon settlement of the executory contract, in return for-their deed to him of that part of the tract which they had not deeded.</p>

<p>Evidence — Presumption of death where absence is unexplained.</p> <p>Where a public administrator presents his accounts as administrator of a deceased person who disappeared in 1873 in a manner unexplained there is no presumption that he died until seven years after his disappearance and therefore the representatives of a married sister, who died in 1876 without issue and whose husband subsequently died, can take no interest in the estate of the person who. disappeared as against a sole surviving brother and next of kin.</p>

<p>Bemainder — When distributive and not to a class — Distribution in intestacy.</p> <p>Where a testator constitutes his wife life beneficiary of a trust embracing his residuary estate and vests upon his own death the remainder after her death in four of his nephews, naming them, share and share alike, only such nephews as survived him take and they take as. tenants in common and not as a class.</p> <p>In lapsed legacies, to two nephews who died before him, the representatives of his deceased widow and those of a nephew who died after him are entitled to share with the nephew living.</p>

Appeal by the plaintiff from a judgment and order of the Gen oral Term of the City Court of the city of New York, affirming » judgment in favor of the defendant, entered upon the verdict of a jury and affirming an order denying the plaintiff’s motion for » new trial.

Appeal by the defendant from an affirmance by the General Term of the City Court of the city of New York of a judgment, entered upon the direction of the court at Trial Term, in favor of the plaintiff. Action for rent. The facts, so far as material, are stated in the opinion.

Appeal by the defendant from an affirmance by the General Term of the City Court of the city of New York of a judgment, entered upon a verdict in the latter court, in favor of the plaintiff. The nature of the action and the facts so far as material are stated in the opinion.

<p>Sale — Delivery — Memorial day — Due course of mail in. New York city.</p> <p>A memorandum, executed on behalf of vendors, of goods, in France with vendees in the city of New York, stipulating that the goods shall be “ Deliverable, April and May 1900 ” but not fixing the place of delivery, is to be construed as meaning only that the goods shall be in the port of New York, ready for delivery, during May at the latest, and therefore where the vendors’ local agents mail the vendees a letter at 6:50 p. m. on May 29, 1900, stating that the goods are on a steamship “ which is due to-day or to-morrow ” and ask for shipping instructions as to the place of delivery, and the vendees, Memorial Day intervening, do not attend at their place of business or receive the letter or reply to it until May 31, and in the reply demand delivery at their place of business on May 31, a delivery about noon on June 1, is in time.</p> <p>Memorial Day is a legal holiday but is not a dies non and any business may be transacted during it except such acts as are expressly 1 excepted by statute.</p> <p>The court will take judicial notice that a letter mailed in the city of New York at 6:50 p. ir. on May 29 would be delivered, in the usual course of the mails, on the morning of May 30.</p>

<p>Appeal from a judgment and order of the General Term of the ■City Court of the city of Hew York, affirming a judgment in favor of the plaintiff, entered upon a verdict directed by the trial judge.</p>

Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, rendered in favor of the plaintiffs, upon a trial had before the court, without a jury. The opinion states the nature of the action and the material facts.

Appeal by the plaintiff from a judgment of the Municipal Court of the city of Mew York, borough of Manhattan, rendered in favor of the defendant Mishkin, upon the verdict of a jury. Action upon a promissory note. The material facts are stated in the opinion.

Appeal by the tenant from a final order in summary proceedings to recover the possession of real property, on the ground that ■his term therein had expired, made by a justice of the Municipal Court of the city of Rew York, borough of Manhattan, in favor of the landlord upon the verdict of a jury. The material facts are stated in the opinion.

Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, rendered in favor of the defendant upon a trial had before the court without a jury,

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

<p>Demurrer to complaint in an action for libel.</p>

<p>Security for costs of nonresident plaintiff — When to be exacted — Laches of both parties.</p> <p>The absolute right of a defendant to compel a nonresident plaintiff to give security for costs is waived unless asserted before service of the answer.</p> <p>Security is discretionary thereafter and in order to entitle the defendant to it he must show the court some fact which furnishes a sufficient excuse for his delay in moving.</p> <p>An application of the plaintiff, to vacate an ex parte order compelling: him to give such security, denied where he had been guilty of laches in moving to vacate and was in technical contempt when he moved, and this although the defendants had been guilty of laches in procuring the order.</p>

<p>Motion for a discovery and inspection.</p>

<p>Motion to discontinue.</p>

<p>Motion to set aside order appointing a receiver.</p>

<p>Motiou for judgment on a frivolous demurrer.</p>

<p>Injunction dependent on the subject of the action — Eight of members of an unincorporated association to restrain other members from violating the agreement of organization—Demurrers — Parties.</p> <p>The Supreme Court has jurisdiction, under Code C. P. § 603, of the subject of an action brought by certain base ball clubs, members of a voluntary unincorporated association known as the National League and formed under an agreement executed by the plaintiffs and certain other base ball clubs defendant, to prevent the latter from violating the agreement, to avoid an alleged illegal election by them of still another defendant as president-secretary-treasurer of the League, to restrain him from acting as such as well as from taking possession of the funds of the League and to prevent its alleged legal president from surrendering them to him, to the injury of the plaintiffs.</p> <p>A demurrer to jurisdiction of the subject of the action must be overruled, no matter how numerous the defendants may be, if the complaint states against the demurrant a cause of action of which the court has jurisdiction.</p> <p>An incorporated ball club, foreign or domestic, has as a corporation a right to sue, and unless it appears, on the face of the complaint, that it has not such right a demurrer will not lie upon that ground.</p> <p>An unincorporated association is not a partnership, and therefore the rule that one partner cannot sue another to prevent him from exercising his rights concerning firm property or affairs does not apply to an action like the present.</p> <p>The action is properly brought by the plaintiffs alone where they allege that the defendant base ball clubs are aiding and abetting the alleged illegally elected president-secretary-treasurer in his acts, to their injury, and where the plaintiffs seek to restrain such aiding and abetting.</p> <p>The National League is not a necessary party defendant, no relief being asked against it. y</p> <p>A defendant cannot by a demurrer raise the question that another defendant, who does not demur, has been made a party improperly.</p> <p>The action is not one to determine the title to an office and therefore is not within Code C. P., §§ 1940, 1984, declaring that such an 'action shall be brought by the People, nor are those sections applicable to an unincorporated association.</p>

<p>Return to a writ of certiorari.</p>

<p>Demurrer by the defendant to the plaintiff’s amended complaint.</p>

<p>This action was brought to foreclose a mechanic’s lien and for determining the rights of subsequent lienors to a fund of $974, due from the owners to the contractors. '</p>

Appeal by the defendant from a judgment of the Municipal Court of the city of Xew York, borough of Manhattan, rendered in favor of the plaintiff, upon a trial had before the court, without a jury. The nature of the action and the material facts are stated in the opinion.

<p>Appeal from an order setting aside a verdict in favor of plaintiff.</p>

<p>Lease — When it requires payment of rent in advance.</p> <p>A lease which provides that rent shall be payable “in equal monthly payments of $116.66 each on the first day of every month during said term ” is to he construed as requiring payment in advance, and particularly where it also provides that the landlord may re-enter “ on giving five days’ previous notice of intention so to do and tendering repayment of the rent paid on account of the unexpired term demised ”, as, if it was not intended that the rent should be paid in advance, there could be no rent to be repaid the tenant if the landlord should re-enter.</p>

<p>This is an action to recover damages for an injury alleged to have been sustained by the plaintiff by falling upon an icy sidewalk of one of the streets of the village of Lansingburgh. By chapter 665 of the Laws of 1900, the village of Lansingburgh was incorporated with the city of Troy, and the village of Lansing-burgh, as such, was abolished.</p> <p>Motiow to substitute the city of Troy as defendant, in the place and stead of the village of Lansingburgh.</p>

<p>Order to show cause — When returnable — Code C. P. § 780 — General Hules of Practice, No. 37.</p> <p>An order to show cause may be made returnable in more than eight days from the granting of the order.</p>

<p>Specific performance — Requisite proof of the terms of the contract and of an adequate consideration.</p> <p>Assuming that, in an action for the construction of a will, a legatee under it, unable to take because the will was made within two months of the death of the testatrix, may, in order to avoid the effect of the statute, demand specific performance of a contract alleged to have been made by the legatee with the testatrix and o£ which the legacy was the alleged outcome, the court cannot grant, specific performance in the absence of definite proof of the terms of the contract and of an adequate consideration for it.</p>

Action by plaintiff Bernstein to secure a judgment of this court adjudging that the docket of a judgment of the Municipal Court in the office of the clerk of the county of New York, did not create a lien upon his premises in favor of defendant herein, and enjoining the defendant from proceeding to collect the amount of said judgment by a sale of said premises under execution.

<p>Nuisance, city dumping board — When damages belong to the lessee — Nuisance existing when the lease was made — Suing the wrong person — Notice from open possession—Limitation of the rule as to the inadmissibility of parol evidence.</p> <p>Where lessors of the easterly half of a pier upon the westerly half of which the city of New York was then and long had been maintaining a nuisance consisting of a dumping board, a temporary structure, and who then had pending against the city an action, to compel it to remove the dumping board, which was likely to be tried soon, leased their half to the plaintiffs and at the same time covenanted that the lease should not affect any pending suit, demand or claim the lessors had against the city for its use “ heretofore ” of the westerly half by its street cleaning department, the court considered that the lessors did not intend to reserve any damages which rdight be suffered by them thereafter from the nuisance and had made no allowance therefor in the rent they had reserved, and accordingly held that the lessees were entitled to recover of the city damages for so long a time as it had maintained the dumping board during their occupation, and this although it had paid the lessors damages for the nuisance during the same period.</p> <p>The court also considered that the fact that the lessees had already been defeated in an action they brought against the lessors to recover of them some of the damages the city had paid them was not a defense to it, and this because to seek a remedy against a wrong party did not deprive a plaintiff of his remedy against the right party.</p> <p>It was also considered that the fact that the lease was not recorded did not assist the city, by reason of its settlement with the lessors, as the lessees were in open and notorious possession of the easterly half of the pier and so put the city on inquiry.</p> <p>The rule that parol evidence is inadmissible to vary a written contract applies only to suits between the parties to the contract.</p>

<p>Street railway corporation — May lease to a similar corporation — Fraud alleged by minority stockholders — Adequate rent — Option — Temporary injunction vacated.</p> <p>Upon a motion to continue a temporary injunction obtained by minority stockholders of the Metropolitan Street Railway Co. in order to restrain the delivery and operation of a lease of all its franchises and assets for 999 years made by it to the Interurban Street Railway Co. upon a vote of 80 per cent, of the stockholders of the lessor, it appeared that the lessor had a capital of $52,000,000, operated 400 miles of road in Manhattan and The Bronx and paid 7 per cent., that the lessee controlled by itself or under traffic contracts 58 miles of road in The Bronx and Westchester county, that it had recently increased its capital from $500,000 to $20,000,000, that of this sum $12,500,000 had been subscribed at par, that recently the Metropolitan Securities Co. had been incorporated with a capital of $30,000,000, that it had acquired all the issued stock of the lessee and had agreed to pay it $23,000,000 for $12,500,000 of its increased stock and $15,000,000 of its debentures, that bankers had underwritten at par the whole capital of the Metropolitan Securities Co. subject to approval, by the lessor and lessee, of the lease, that it had become necessary for the lessor to raise $23,000,000 for its floating debt, new power and rolling stock and that to raise it it had $8,000,000 of the stock of a certain street railroad upon which it had guaranteed dividends under a lease that had not yet proved profitable and that it also had $13,000,000 of claims against subsidiary lines.</p> <p>Held, that the injunction should not be continued pendente, lite.</p> <p>That the lease was not void on its face as constituting an illegal transfer of the properties, franchises, assets, and effects of the lessor.</p> <p>That the lease was not a fraud on the minority stockholders, as the guaranteed rental of 7 per cent, did not appear to be grossly inadequate, nor did the purchase-price of the sale of the securities and claims of the lessor.</p> <p>That the directors of the lessor must in the absence of proof to the contrary be presumed to have acted in the matter in good faith.</p> <p>That a privilege accorded by the lessee to stockholders of the lessor to subscribe to that block of the stock of the Metropolitan Securities Co., which was payable to the lessee, according to their holdings in the stock of the lessor was legal; that it was an independent proposition which did not affect the validity of the lease and that it did not unlawfully compel the minority to take their interest in the value of the property, over the 7 per cent, rent, in a different enterprise or amount to a compulsory diversion of a part of their property to a business outside of the chartered purpose of the lessor.</p>

<p>Actiott for the construction of a will.</p>

<p>Habeas corpus proceedings.</p>

<p>Proceedings upon writs of certiorari and habeas corpus.</p>

<p>Will — Equitable conversion — Trust in personalty for distribution by executors as trustees — When a beneficiary is entitled to the possession of a share — Implication that the trustees were entitled to receive income — Their discretion — Specific legacies when a part of residuary shares — Discretionary gift to executors not available to the administrator of a beneficiary — Expenses of estate, how chargeable — Special compensation to executor.</p> <p>A will devising all a testator’s property to his executors, in trust, to take the custody and possession of it, lease it pending a sale that would be judicious, sell it, convert it into money and pay over and distribute it as directed by him, works an equitable conversion of the realty into personalty and also creates in the latter a valid active trust for distribution and payment by the trustees to the beneficiaries.</p> <p>Where the testator, who was an experienced lawyer and wrote his own will, made therein no gift, devise or bequest except to the executors for distribution, made no use of the word “ income ”, declared that “ all of the shares, legacies, and bequests shall be paid personally to the party entitled thereto, except as herein otherwise provided ”, directed that two equal twelfth parts of his residuary estate be paid over by his executors to his daughter Cornelia, and further provided that her share should be incapable of being sold, assigned or transferred, but that on her death, leaving her son Henry H. surviving, “ her share and interest then remaining therein ” should be paid over to him, or others in remainder, the court considered her entitled to receive the principal of her share, that she might use it and that she stood to the remaindermen1 as trustee of it for them during her life; but where the will, after making a similar provision as to his son Edward B., added “ Further my executors are authorized and empowered, in their discretion, during the life of said Edward B. to pay over not exceeding two-thirds of his share to his said wife Dorothy ”, the court considered that there was a clear implication that Edward B. was not entitled to have the principal of his share.</p> <p>A provision relative to his son Albert B., which, after forbidding the sale, assignment or transfer of his share or his control of it, empowers executors “to retain and withhold it”, in trust, and pay out, pay over or apply so much and such parts of it as they consider necessary for his support and that of his wife and children, and, upon his death, pay them the part remaining, constitutes a valid trust of personalty and, in view of the provisions of the will above stated, the criticism that the clause itself contains no gift to the executors as trustees of the corpus or of the income is untenable, as well as the contention that too much discretion is thereby given them.</p> <p>Specific legacies of $50,000 given by the earlier clauses of the will to the sons Edward B. and Albert B. were held, in view of the nature and apparent purposes of the trusts created in the “ share and interest ” of each of them in the residuary estate, to be parts of those trusts and that, therefore, the legatees were not entitled to have possession of the legacies.</p> <p>A provision authorizing the executors to set apart $25,000 out of which they might “ from time to time as they see fit ” pay to or for the use of the testator’s son Henry G. or his wife, or to or for the use of either of them, such sums as the executors might consider expedient — the benefit of which Henry G. lost, under a minatory provision of the will, by contesting it — does not pass to Henry’s •wife’s administrator, after his wife’s death, so much, of the $25,000 as has not been expended and this because there is no gift of the sum either to her or her husband.</p> <p>An entire estate, given to executors to sell, and to lease until a sale is judicious, is to be treated as an entity and expenditures for interest on mortgages and the charges and expenses of carrying on the estate must be paid out of the general income.</p> <p>An executor who renders his estate valuable services not strictly executorial in their character may entitle himself to compensation beyond his commissions.</p>

<p>Action to set aside transfers by a bankrupt.</p>

<p>Sale, of the thing sold, by a vendor, the vendee refusing to fulfill — Cross-examination of vendee — Measure of vendor’s damages.</p> <p>Where, under an executory contract to manufacture doors, the plaintiff seeks to recover for an alleged failure to deliver them and also claims that they were worth more than the contract price, and the defendant contends that the plaintiff failed to pay for them as required and seeks to recover the difference between the contract price and what he, the defendant, obtained from them upon a resale of them, it is proper, where the plaintiff has testified to their market value, for the defendant to ask him what he paid for other doors of the same kind to replace them.</p> <p>Upon the question of the defendant’s damages, it is admissible for him to prove what he obtained for his doors upon his resale of them.</p>

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

<p>Crimes — Warrant against “John Doe ” — Code Grim. Pro., § 153.</p> <p>Under a warrant directing the officer to arrest “ John Doe. the name Doe being fictitious, true name unknown, but whom deponent can identify ”, the officer may lawfully arrest a person named David Friedman where there is nothing in the return, to a writ of habeas corpus taken out by David Friedman after his arrest, to show that any of his substantial rights have been violated.</p> <p>The contention that the warrant was void because it did not also state the name “ John ” to be fictitious is untenable as the form of the warrant is justified by Code Crim. Pro., § 152.</p>

<p>Demubbebs to amended complaint.</p>

<p>Fraud — Rescission.</p> <p>A purchaser of an interest in a business was permitted to rescind on proof that her vendor had been guilty of fraud, in the negotiations which led.to the sale, in that she exaggerated the receipts from the business and upon further proof that the purchaser had in buying relied upon these misrepresentations.</p>

<p>Crimes — Willful neglect of duty — Status of inspector of combustibles in New York city — Demurrer to his indictment sustained.</p> <p>It is the apparent purpose of the New York city charter (L. 1897, ch. 378, §§ 720, 724, 727, 728, 731, 771) to vést in the city fire commissioner the entire government, management and direction of the fire department, with power to him to select heads of bureaus and assistants, the same to be under his control and to perform such duties as he may assign them, and, therefore, an indictment against his inspector of combustibles, the head of a bureau, for having as alleged willfully omitted his lawful duties of inspecting places where blasting was being done and explosives were being kept and of using proper means to restrain the violation of State laws relative to the storage of dynamite and other combustibles, and also for having willfully permitted unlawful quantities of dynamite and other explosives to be kept on Park avenue, New York city, is demurrable where it does not allege that the duty, assigned to the inspector by the commissioner, was that of inspecting places in the city where blasting was being done and explosives were being kept, and also that of using means to restrain the violation of the State laws relative to the storage and keeping of explosives.</p>

Motion by defendant Beolchi for a reference or writ of inquiry to fix the damages which he claims to be due him upon the injunction bond given in this action.

<p>Application under the Liquor Tax Law (L. 1896, eh. 112) to revoke .and cancel a liquor tax certificate.</p>

<p>New York city — Blasting in Manhattan — Injunction refused where there is an adequate remedy at law.</p> <p>Although two adjoining lots in Manhattan are situated on the same continuing stratum of rock both owners have equal rights to do necessary blasting on their respective premises by the usual means, and one of them gains no rights over the other by having Been the first to do so.</p> <p>The owner of a building, who alleges that it is being endangered by blasting done on the adjoining lot of an association by contractors with it, will not be granted a temporary injunction to restrain any blasting by them where the contractors allege that the blasting is being carefully done and has not damaged adjacent buildings which were subject to similar conditions; and, where the owner of the building alleges that the work is unlawful and it is not denied that the association is financially responsible, she has an adequate remedy at law against it for her damages.</p>

<p>Dower — Fraudulent attempt of husband to defeat inchoate right — When fraud need not be characterized in terms.</p> <p>Where a husband, separated from his wife and owner of mortgaged premises in which there is a considerable equity, wilfully and unnecessarily permits the interest on the mortgage to remain unpaid, collusively incorporates, by persons of his own selection, a company in which he or they own all the stock and of which he is made president, secures an assignment to the company of the mortgage, procures it to be foreclosed in its name and in the same manner buys in the premises and mortgages them to a third party, and at all times remains in possession of the premises and in enjoyment of the rents and profits, the wrife may, upon becoming apprised of the facts, maintain an action against him and the corporation in which the court will disregard the fiction of corporate entity, treat him as practically the sole stockholder, decree that except as against the outstanding mortgage her inchoate right of dower attached to the premises and give her damages for the loss of it.</p> <p>The fact that the wife did not contest the foreclosure action is not material where it does not appear that she knew or that she ought to have known of its fraudulent purpose; and such a contention, if sound, must be pleaded by answer and is not available on demurrer to the complaint.</p> <p>Where the complaint sets forth the facts and their necessary consequence is fraud it need not be characterized in the complaint in terms.</p>

Application by a person who has been judicially declared incompetent, for an.order discharging the committee heretofore appointed.

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

<p>New York city —Writ of prohibition, forbidding levy of an assessment, refused — L. 1897, ch. 378, § 958 — Assessment, illegal in part.</p> <p>The writ of prohibition, not a writ of strict right, will be granted only in cases of extreme necessity and will be refused where greater injustice will be done by its issue than would be prevented by its operation.</p> <p>The provisions of the charter of the city of New York (L. 1897, chap. 378, § 958) that “ No suit or action in the nature of a bill of equity or otherwise shall be commenced for the vacation of any assessment in said city, or to remove a cloud upon title; but owners of property shall be confined to their remedies in such cases to the proceedings under this title ” prevent the issue of a writ of prohibition at ¡the instance of a party assessed where it, if issued, would accomplish precisely what this section is designed to prevent.</p> <p>The fact that the regulating and grading of an avenue in the city of New York was illegally done, in 1874^-1877, by “ day’s, work ” instead of by contract will not be permitted wholly to avoid an assessment for the entire work as completed, including curbing, flagging and filling, for it is the settled policy of the law in said city that property benefited by local improvement shall not wholly escape assessment because the cost of the work has been swelled by the • inclusion of legal items or other irregularity, but that, in every such case, the property benefited shall bear its due proportion of the fair cost of the work.</p>

The defendant, a corporation located in Rensselaer county, obtained ex parte through its attorney, who also resided in the same county, an extension of time to answer for nineteen days from the Rensselaer County Judge. The defendant again obtained from the same County Judge a second extension of time to answer upon notice to the plaintiff’s attorney, and which motion was not opposed before the County Judge.

<p>Motion for a temporary injunction.</p>

<p>Appeal from a judgment rendered at Trial Term upon the direction of a verdict had in favor of the plaintiff and from the order denying a new trial upon the minutes.</p> <p>The note in suit was dated July 6, 1900, was for $1,750 and was payable in four months from date. It was indorsed, in blank,</p> <p>successively by L. C. Whiton, Elmer E. Oooley and 0. A. Hall, the plaintiff. The memorandum as to the proceeds of the note, referred to in the opinion, was as follows: “ At the time the note for $1,750.00 made by Caroline W. Whiton to the order of Louis C. Whiton was delivered to Elmer E. Cooley, to wit, on or about the 6th day of July, 1900, it was understood between the said Cooley and the said Louis 0. Whiton, that if the said sum of $1,750.00 were paid before the debt secured by a mortgage made by Ira L. Willits to Agnes Patterson, and guaranteed by Louis O. Whiton was paid, then the sum of $850.90 should be held by Elmer E. Cooley, and any deficiency that might arise upon the sale of the said mortgaged premises should be paid out of the said sum of $850.90 and the surplus returned ti> the said L. C. Whiton or Caroline W. Whiton, and if the said mortgage was paid before the said note was paid, then the net amount realized upon the said mortgage less disbursements not taxable, was! to be deducted from the amount of the said note. The said note having been sold by Elmer E. Cooley, and it not having been paid, Elmer E. Cooley hereby agrees to carry into effect the foregoing understanding as soon as said mortgage and said note are paid.</p> <p>“ Dated December 26, 1900.</p> <p>“ L. C. Whiton,</p> <p>“ Elmeb E. Cooley.”</p>

<p>Appeal by defendants from a judgment and order of the General Term of the City Court of the city of Hew York, affirming a judgment in favor of the plaintiff entered upon the verdict of a jury, and affirming order denying defendants’ motion for a new trial. . ¡</p>

<p>Appeal by the defendant Smith from an order of the General Term of the City Court of the city of Eew York modifying and, as modified, affirming an order of the Special Term adjudging the appellant guilty of contempt of court.</p>

<p>Appeal by the defendant Paine from a judgment of the General Term of the City Court of the city of New York affirming a judgment in favor of the plaintiff, entered upoii the verdict of a jury, and affirming an order denying the defendant’s motion for a new trial.</p>

<p>Appeal by Mark Jacobs, a receiver appointed herein (in proceedings supplementary to execution), from an order of the General Term of the City Court of the city of New York, affirming an order of the Special Term of the City Court, directing said receiver to pay over to the respondent herein the sum of $158.</p>

Appeal by the defendant Berlin from a judgment and order of the General Term of the City Court of the city of Hew York affirming a judgment in favor of the plaintiffs entered upon the verdict of a jury and affirming an order denying the defendant’s motion for a new trial.

<p>Appeal by the defendant from affirmance by the General Term of the City Court of the city of Eew York of a judgment entered upon the verdict of a jury in favor of the plaintiff. The nature of the action and the facts, so far as material, are stated in the opinion.</p>

<p>Appeal from affirmance by the General Term of the City Court of the city of blew York of a judgment in favor of the plaintiff rendered upon direction of a verdict.</p> <p>The nature of the action and the material facts are stated in the opinion.</p>

<p>Appeal from affirmance by the General Term of the City Court of the city of New York, of an order denying the defendant Bacon’s motion to compel acceptance of the answer by the plaintiff, as having been served in time.</p>

<p>Appeal by the defendant from a judgment of the General Term of the City Court of the city of New York, affirming a judgment of the Trial Term of that court, in favor of the plaintiff for $571.69 damages and costs, upon the verdict of a jury.</p> <p>The opinion states the nature of the action and the material facts.</p>

Appeal by the defendant, Max Newman, from a judgment and order of the General Term of the City Court of the city of New York, affirming a judgment in favor of the plaintiff and an order denying a motion for a new trial.

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

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

<p>Appeals from a judgment and from an order modifying the judgment.</p>

Appeal by defendant from a judgment rendered in the Municipal Court of the city of New York, fifth district, borough of Manhattan, in favor of the plaintiff for $164.65, after a trial had before a justice.

Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, upon a trial had before the court without a jury. The nature of the action and the material facts are stated in the opinion.

Appeal by the defendant from a judgment of the Municipal Court of the city of Eew York, borough of Manhattan, rendered in favor of the plaintiff upon a trial had before the court, without a jury. The opinion states the nature of the action and the facts so far as they are material.

Arpead by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, rendered in favor of the plaintiffs upon an inquest taken therein. The pleadings were verified. The complaint alleged a cause of action for a breach, of contract of employment and the answer admitted the employment but set up certain new matter in justification of defendant’s failure to perform the contract. The material facts are stated in the opinion.

Appeal by the plaintiffs from a judgment of the Municipal Court of the city of New York, borough of Manhattan, rendered upon the verdict of a jury in favor of the defendant for $329.36, damages and costs. The pleadings were written. The complaint is upon two causes of action: (1) $185 for a balance of money loaned and (2) $16.13 for goods sold and delivered.

Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan; in favor of the defendant, upon a trial had before the court without a jury. The nature of the action and the facts, so far as material, are stated in the opinion.

<p>Appeal by the defendants from a judgment of the Municipal Court of the city of New York, borough of Manhattan, rendered in favor of the plaintiff upon a trial had before the court without a jury. The nature of the action and the material facts are stated in the opinion.</p>

<p>Appeal by the plaintiff from a judgment of the Municipal Court of the city of Rew York, borough of Manhattan, rendered in favor of the defendant after a trial had before the court without a jury.</p> <p>Action upon a contract for advertising in a newspaper known as the Rew York Commercial. The material facts are stated in the opinion.</p>

<p>Appeal by the defendant from a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, rendered in favor of the plaintiff upon.a trial had before the court, without a jury. The nature of the action and the material facts are stated in the opinion.</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, 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 Eew York, seventh district, borough of Manhattan. 1 (</p>

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

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

Appeal by the defendants from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of New York, fourth district, borough of Manhattan.

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

<p>Appeal from a judgment of the Municipal Court of the city of New York against the defendant William Heinle individually, after a trial by the court without a jury.</p>

Appeal by the plaintiff from a judgment of the Municipal Court entered on a verdict in favor of defendant for $249.60, the full amount of her counterclaim against the plaintiff.

<p>Appeal from a judgment in favor of plaintiff.</p> <p>Action for commission for services rendered as a real estate broker.</p>

<p>Appeal from a judgment entered upon the verdict of a jury, by direction of the court.</p>

<p>Appeal from an order of the Special Term, vacating an order of arrest.</p>

<p>Appeal from a judgment, entered on a verdict, and from two separate orders denying a motion for a new trial after the verdict, and denying a motion for a new trial on the ground of newly discovered evidence.</p>

The action was brought against the defendants as sureties on an undertaking to reclaim chattels, and was brought subsequent to the rendering of judgment against the defendants in the original replevin action, and subsequently to the return of execution, unsatisfied, against the defendants.

<p>Appeal from a judgment entered upon verdict, and order denying motion to set the same aside, and for a new trial.</p>

<p>Appeal from an order of the Special Term, dated ¡November 29, 1901, vacating and setting aside order for examination of plaintiff before trial.</p>

<p>Appeal from interlocutory judgment and from “ decision ” overruling demurrer to complaint.</p>

<p>Appear from order overruling amended answer as frivolous, and from judgment entered thereon. ✓</p>

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

<p>Appeal from an order dismissing an action for want of prosecution and granting affirmative relief.</p>

<p>'Appeal from a judgment dismissing the complaint, after a trial before the court and jury.</p>

<p>Appeal from a judgment in favor of the defendant, and from an order denying plaintiffs’ motion for a new trial</p>

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

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

<p>Appeal from a judgment entered upon the verdice of a jury, and from an order denying a motion for a new trial</p>

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

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

<p>Appeal from an order advancing cause to short cause calendar.</p>

<p>Appeal from a judgment entered on the verdict of a jury, by direction of the court, and from an order denying a motion for a new trial. The opinion states the facts.</p>

<p>Appeal from an order allowing the service of an amended and suplemental answer upon payment of taxable costs, and from an order taxing costs thereon.</p>

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

<p>Appeal from order and judgment, entered thereon, dismissing action, with costs for want of prosecution.</p>

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

<p>Appeal from a judgment rendered in favor of the plaintiff on the verdict of a jury at Trial Term, and from the order denying the defendant’s motion for a new trial upon the minutes.</p>

<p>Appeal from a judgment rendered in favor of the defendant on the verdict of a jury at Trial Term, and from the order denying plaintiff’s motion to set aside the verdict and for a new trial upon the minutes.</p>

<p>Appeal from judgment upon verdict, and order denying motion to set the same aside, and for a new trial.</p>