Volume 4 — E.H. Smith

The facts, so far as material, are stated in the opinions. The property subject to the tax includes all property or interest therein over which this state has any jurisdiction for the purposes of taxation.

399, Laws of 1892). The facts, so far as material, are stated in the opinions. A debt cannot be regarded as property in a state in which neither the debtor nor the creditor resides. (People ex rel. v. Comrs. of Taxes, 23 N. Y. 224; People v. Trustees of Ogdensburgh, 48 N. Y. 390; People ex rel. Jefferson v. Smith, 88 N. Y. 576; People ex rel. Darrow v. Coleman, 119 N. Y. 137; People ex rel. Day v. Barker, 135 N. Y. 656; People ex rel. E. El.

<p>Appeal from order of the Appellate Division of the Supreme Court in the first judicial department, made February 14, 1896, which affirmed an order of the surrogate of the county of Hew York, affirming an appraisal of property under the Transfer Tax Act (Chap. 399, Laws of 1892).</p> <p>The facts, so far as material, are stated in the opinions.</p>

399, Laws of 1892). The facts, so far as material, are stated in the opinions. Held: or other settlement made, the administrators would still hold merely a chose in action in the nature of a claim against the trust company. (Chapman v. White, 6 N. Y. 412; F. Nat. Bank v. Clark, 134 N. Y. 369.) The situs of a debt is the domicile of the creditor and not the debtor.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff as a temporary receiver cannot maintain this equity action. (Mann v. Pentz, 3 N. Y. 416; Adsit v. Butler, 87 N. Y. 585; Geery v. Geery, 63 N. Y. 252; Sturges v. Vanderbilt, 73 N. Y. 384; Adee v. Bigler, 81 N. Y. 349.) The Yew York Supply Company was not a necessary party.

1890, in the sum of $2,569.99, and reducing the amount to $1,163.74. The facts, so far as material^ are stated in the opinion. The words capital or capital stock, as used in section 11 of the Corporation Tax Law, mean the aggregate assets or property employed by the company in doing business in this state.

The facts, so far as material, are stated in the opinion. The taxability or nontaxability of a person under the laws relating to taxation in the city of ¡New York becomes irrevocably fixed on the second Monday of January, and cannot be changed or affected by subsequent occurrences.

The nature of the action and the facts, so far as material, are stated in the opinions. The presumption-is that the rights and relations of parties to negotiable paper are precisely such as they appear upon its face to be.

The appeal was allowed and a question certified for determination by an order of the Appellate Division in the following form, viz.: “ That an appeal to the Court of Appeals may be taken from the order and determination of this court heretofore and on the 14tli day of March, 1896, made in this action, affirming an order heretofore and on the 26th day of December, 1895, vacating a warrant of attachment heretofore made in this action, and this Appellate Division hereby allows…

The nature of the action and the facts, so far as material,, are stated in the opinion. The plaintiff is estopped from making any claim to rescind the contract, because of the-failure, for any cause, of the stockholders of the Star Headlight Company to increase its capital stock on April 6, 1892. With full knowledge, he waived that condition and claimed and demanded the stock.

The appellant has stipulated that, if the order appealed from should be affirmed, judgment absolute may be rendered herein against him. The nature of the action and the facts, so far as material, are stated in the opinion.

Kimberly, deceased. David F. Kimberly died in the city of Brooklyn June 29, 1895, leaving a last will and testament, which was admitted to probate on the tenth of the following September. Louisa Kimberly, the appellant, alone qualified as executrix thereof. She subsequently petitioned the surrogate of Kings county for the appointment of an appraiser to determine the value of the estate, and fix the amount of transfer tax due therefrom.

<p>Cross-appeals from order of the General Term of the Supreme Court in the fifth judicial department, made December 26, 1895, which modified and, as modified, affirmed orders of the Special Term.</p> <p>The Buffalo Mutual Life and Reserve Association w,as incorporated in February, 1883, under the provisions of chapter 267 of the Laws of 1875. It commenced and continued business under the provisions of that statute until February, 1886, when it was re-organized under chapter 175 of the Laws of 1883, as The Life and Reserve Association of Buffalo, New York.</p> <p>Under the latter name it continued business until the twenty-third day of September, 1892, when this action was commenced. A judgment dissolving the association was entered therein on the twenty-seventh day of .December, 1892. _ An order winding up its affairs and for the distribution of its assets to and among its members and other persons entitled thereto, was granted upon the same day. Herman Waterman was duly appointed first as temporary receiver, and subsequently as permanent receiver of such corporation.</p> <p>The order or judgment of dissolution also contained a provision appointing Honorable Henry F. Allen referee, to take proof of the condition of the affairs of the corporation, and to ascertain to whom the assets of the association should be paid. The assets of the company at the time of its dissolution amounted in the aggregate to $176,816.22, some portion of which was uncollectible. At the time of the dissolution, the members of the association holding certificates numbered forty-six hundred, of which thirty-six hundred were members of the reserve class and held life reserve certificates, and the members of the association holding life certificates numbered one thousand.</p> <p>The general and outside indebtedness of the association amounted to about five thousand dollars. The death claims in the reserve class unpaid at the commencement of this action amounted to $23,450, while the death claims unpaid at that time based upon life certificates were $25,500. When the receiver took possession of the property of the corporation, it-was ascertained that $32,833.94 of the reserve fund was not accounted for on the books of the association; that $3,906.05 had been lost in real estate investments, and that $36,000 of this fund had been used in paying death claims against the association, thus making a total of $72,739.99 of the reserve fund which had not been held exclusively for persons holding life reserve certificates. The assets on hand were not equal to the amount of the reserve fund which had been collected, and its accumulations. The death fund was overdrawn, and the safety fund had been exhausted. Substantially all the moneys on hand for distribution belonged to the reserve fund, and had been contributed by the reserve members of the association.</p> <p>Before the commencement of this action, and in December, 1886, Gilmore D. Boyce became a member of the association, and it issued to him a certificate for one thousand dollars in the reserve class, making Ella Eoyce the beneficiary therein. Gilmore D. Eoyce died in February, 1892, while a member of the association in good standing. Thereafter, Ella Eoyce presented a claim against the association for the amount named in such certificate. It was submitted upon proper proofs to the referee, who disallowed it. • To that determination she filed exceptions which were heard at a Special Term of the ■Supreme Court May 1, 1895. The court sustained the exceptions, held that the claimant had an equitable lien upon the reserve fund, and directed her claim, with interest, to be paid therefrom.</p> <p>The appellant Frank Spooner is the beneficiary named in •a certificate in the reserve class issued to his wife for one thousand dollars. She died August 23d, 1892, while a member in good standing. The matters affecting his claim are the ■same as those existing in the case of Ella Eoyce.</p> <p>The appellant Ellen Dwyer is a beneficiary under a life ■certificate issued to John Dwyer, who died prior to the commencement of this action, and at the time of his death was a member in good standing. The amount of his certificate was two thousand dollars. The claim was disallowed by the referee, and the claimant thereupon filed exceptions to his report, which the Special Term overruled.</p> <p>The Special Term in effect held: 1. That death claims arising on life certificates were not entitled to be paid out of the reserve fund; 2. That death claims arising upon life reserve certificates were entitled to be paid therefrom; 3. That after payment of the general debts existing at the time of its dissolution, the expenses of winding up its affairs, and the death claims existing against the association arising on life reserve certificates issued to members who died before the commencement of this action, the remainder of the reserve fund should be distributed to the living members of the life reserve class in good standing, and to the representatives of members of that class who have died since the commencement of this action, in the proportion which the amount contributed by each bears to the whole amount of the fund; and, 4. That all moneys in the hands of the receiver derived from the assessments levied by the association in September, 1892, should be returned to such members respectively.</p> <p>The court thereupon ordered that from the moneys in his hands the receiver pay and distribute to the claimants whose claims have been established the sum of §55,000 as follows: 1. That he pay each and all of the claims allowed for money paid the association by claimants which came to the hands of the receiver from the assessment of its members in September, 1892; 2. That out of the remainder he pay each and all claims of general creditors in full as established by the report of the referee ; 3. That he reserve in his hands §28,249 for the payment of death claims upon life reserve certificates until the question whether they should be paid in full was finally determined; and 4. That the residue of the sum of §55,000 be paid to the executors, administrators or beneficiaries of members of the association whose claims as holders of life reserve certificates have been allowed.</p> <p>From the order of the Special Term sustaining their exceptions and adjudging that Boyce and Spooner have an equitable lien on the reserve fund of the association, and that their claims should be paid therefrom, the receiver appealed to the General Term, and Ellen Dwyer also appealed from the order of the Special Term overruling her exceptions to the report of the referee. By stipulation of all the parties, and with the consent of the court, these appeals were heard and determined by the General Term as one. The order of the Special Term was modified by the General Term, and that court directed that $10,000 of the reserve fund should be paid to and distributed among the holders of the death and disability claims of both classes which existed at the time of the commencement of this action, and that the residue of the reserve fund should be distributed to and among the members of the reserve class whether living or dead at the time of the commencement of this action, without any diminution by rear son of having shared in said §10,000.</p> <p>From so much of the order of the General Term as directed that only $10,000 should be distributed among the holders of death claims, and that the remainder be distributed among the holders of life reserve certificates, the appellants Eoyce, Spooner and Dwyer appealed to this court. The receiver appealed to this court from that part of the order which directed that $10,000 with interest should be transferred from the reserve fund to the death fund, and held that it was properly applicable to the payment of the valid death and disability claims made against the association arising either upon life certificates or life reserve certificates.</p> <p>The constitution and by-laws of the association, so far as material to the questions involved, are as follows:</p> <p>“ Object. The object of the Life and Eeserve Association is to combine the efforts of all its members, with the view to furnish life indemnity of pecuniary benefits to the widows, orphans, heirs or relatives by consanguinity or affinity, devisees or legatees of deceased members, or permanent disability indemnity to members-thereof; and further, to collect and accumulate funds to be held in trust and to be used by the association and its members in reducing future dues and assessments, and for such other purposes as are hereinafter provided for under the constitution, by-laws and amendments thereto.” (Art. 1, § 3.) The constitution then provides that in no case shall the amount of certificates exceed $10,000 for males and $5,000 for females. (Art. 2, § 2.)</p> <p>Section 3, article 2, provides:</p> <p>“ CEBTIFIOATES.</p> <p>“ This association shall issue two kinds or forms of certificates, one of which shall be known as a Life Certificate and the other as a Life Eeserve Certificate. No person holding a Life Certificate shall be entitled to or shall in any manner derive any benefit from the Eeserve Fund, hut such fund shall be and is for persons holding Life Eeserve Certificates only.” It then states when life certificates shall issue, when life reserve certificates may be issued, and the amount of assessments upon each, the life reserve certificate being assessable to twice the amount of the life certificates. It then declares; “After four years from the date of the Life Eeserve Certificates and at the end of each period of four years thereafter, during the continuance of the certificates, commencing with the first day of January first preceding the date of such certificates, a bond will be issued (bearing interest) for the Eeserve Fund, set apart according to Article 6; said bond and interest being available to pay future dues and assessments at such periods from their date as set forth in Article 6.”</p> <p>Section 3 of article 3, which relates to assessments, contains the following: “There shall be accumulated in the death fund a permanent sum from surplus of death assessments after the payment of claims assessed for or from transferring from the Eeserve Fund, of not less than the proceeds of one-death assessment of the maximum death claim, which shall be invested in such security as the laws of the State permit insurance companies to invest their capital in, or deposited to the credit of the Association in a Bank or Trust Company, and which, together with all interest and accretions thereto, shall be held in trust unimpaired, for the benefit of policy or certificate holders, for the purpose of paying death or disability claims only. Should this sum or any portion of it be withdrawn for the purpose of said trust, the same shall be replaced as originally constituted.”</p> <p>Section 5 of article 3, which is entitled “ Death Fund ” provides: “ Whenever the Death Fund of the Association shall be insufficient to pay and satisfy the deaths occurring in any one year after having made twelve times the above assessment schedule (or collected a sum equal to that amount in six bi-monthly calls), or when the death rate of the Association exceeds the American Experience Tables of Mortality, if such an excess should ever occur or nine-tenths of one per cent, the Executive Committee may make good any deficiency in the Death Fund out of the Safety Fund, as provided by Section • 12, Article III, of the By-Laws. There shall be nothing in this Constitution and By-Laws, however, that may be construed as prohibiting the transfer of money from the Safety Fund to the Death Fund for the purpose of paying death claims on or before said Safety Fund shall exceed its limit.”</p> <p>Art. IV, § 2.</p> <p>“ Death Claims. Payment of all death claims shall be-made within ninety days from the date of the bi-monthly assessment first ensuing after the approval of the said claim.”'</p> <p>Art. IV, § 6.</p> <p>“Payments of Ceetifioates. When a death claim becomes due and payable, the maximum amount may be paid from the Death Fund as the certificates and the Constitution and By-Laws may prescribe, or such part thereof, as an assessment of once the schedule, at the time said death occurred, will pay the death fund.”</p> <p>Article six of the constitution is entitled “ Beserve Fund,” and, so far as it relates to the questions to be considered, reads:</p> <p>“ Sec. 1. How Cheated. All members holding Life Beserve Certificates will pay a reserve assessment, as shown by graded assessment table, Article 3, Section 4, of the Constitution, which net reserve assessment * * * will be set aside as a reserve fund, which, together with interest earnings of said fund, shall be securely invested in Hnited States Bonds or mortgages on unincumbered real estate, or other first-class interest-bearing securities, in the name and by the direction of the Association. * * * This Beserve Fund, together with its earnings, is for the exclusive benefit and to reward the fidelity of the old and persistent members, and to make the Association sound and permanent, thereby guaranteeing the payment of every member’s certificate at death, to the maximum limit named therein.</p> <p>“ § 2. Disposition of the Beseeve Fund. A portion of the Beserve Fund mentioned in the preceding section will be set apart and an interest-bearing bond issued for same to members at the end of each period of four years. The principal of the first bond shall-be available six years from its date, and all other bonds four years from date, towards paying future dues and assessments under the certificates on which said bonds were issued. The interest on all bonds shall be applicable, as it accrues and becomes available, for the payment of assessments ; and should said certificate of membership, on which said bonds were issued, cease by death, the amount of principal and interest of said bonds, which is available to pay assessments and not thus used, shall be paid beneficiaries in addition to the amount of certificates of membership; but should certificates of membership, under- which said bonds were issued, cease by failure of the member to keep up his dues or assessments on said certificates, as provided for in the constitution, any portion of the said principal or interest not thus used, or any portion of the bonds at death not available to pay assessment, shall be applied to increase the bonds issued at the next quadrennial apportionment to members of the Association.</p> <p>“ § 3. Contingent Liability and Absolute Subplus. The Association shall, on the first business day of January in each year, beginning with the year 1887, set apart from the Reserve Fund a sum, and cause the same to be divided among the members who shall hold Life Reserve Certificates, and who are at the time of four (4) and every multiple of four (4) years’ standing in the Association, and issue to them bonds representing their proportion. This sum shall be taken and considered as a contingent liability upon the Association ; the amount to be set apart in any one year shall not in the aggregate exceed a dividend of one hundred per cent of the amount paid in assessments and dues during the four years by members entitled to receive bonds, nor shall any individual member be entitled to bonds exceeding in amount that which has been paid by such member in total assessments and dues during the four years. The Reserve Fund which has not been set apart, or for which no bonds have been issued, shall be held by the Association as absolutely and strictly a Surplus Fund, and no member of the Association shall have any claim whatever upon this fund, and it shall be regarded in equity and in law as a Surplus Fund.”</p> <p>The words, “ and to make the Association sound and permanent, thereby guaranteeing the payment of every member’s certificate at death, to the maximum limit named therein,” were added to section one by amendment in 1888.</p> <p>In article three of the by-laws of the association is the following : “ § 12. Safety Fund. The stability and permanence of the Association are further guarded, in order to prevent the possibility of its ever becoming unsound, by setting apart eighteen per cent of the net receipts from death assessments * * * together with the admission fees and dues received, into a fund to be known as the Safety Fund. The Board of Directors are hereby prohibited from using any money received for Death or Beserve Funds for the purpose of paying salaries or running expenses of the Association, except from Safety Fund, from which the actual expenses of the Association shall be paid; such Safety Fund in excess of thirty thousand dollars shall be transferred to the Death Fund whenever the deatli rate of the Association exceeds the American Experience Tables of Mortality.”</p> <p>The certificates which were issued to reserve members provided that the association would pay from the death fund the amount of the certificate or, in case of total, permanent disability for life, half that amount. It also contained this provision : “ The Death Fund of the Association is set apart from assessments, for the exclusive and sole purpose of paying claims by death or total disability. * * * The Beserve Fund shall be securely invested in United States bonds, mortgages on unincumbered real estate, or other first-class interest-bearing securities, for the exclusive benefit of members of the Association. At each period of four years of continuous membership of this Certificate, a Bond will be issued (bearing interest) for an equitable proportion of the Beserve Fund: Interest on said bond may be used annually from its date toward paying future assessments, and the principal of said Bond, when available, toward paying future assessments under this certificate; or in case of death, paid to the beneficiary, together with this Certificate of Membership; thus the interest is available after four years and the principal after ten years to pay future assessments. This certificate is issued and accepted subject to all the provisions and stipulations contained in the Constitution and By-Laws of this Association, which are hereby made a part of this certificate, with any amendments that may hereafter be made thereto.”</p> <p>The certificate issued to life members was similar to that issued to reserve members, and contained the provision: “ The Death Fund of the Association is set apart from assessments, for the exclusive and sole purpose of paying claims by death or total disability,” but contained none of the other provisions quoted. Bor did it in any way refer to the reserve fund.</p> <p>Upon the notice of assessment used by the association was indorsed an explanation as to the reserve fund, in which it is stated that the reserve fund with its earnings “ is for the exclusive benefit and to reward the fidelity of the old and persistent members, and to make the association sound and permanent, thereby guaranteeing the payment of every member’s certificate at death, to the maximum limit named therein.”</p> <p>The intent, as found in the language of the contract, must control in disposing of the reserve fund. (In re E. R. L. F. Assn., 131 N. Y. 355 ; Burdon v. M. S. F. Assn., 147 Mass. 360.) These claimants have an equitable lien upon the reserve fund for the payment of their claims, and this court has jurisdiction in these proceedings to enforce such lien and direct the payment of these claims out of such fund. (Laws of 1883, chap. 175, § 21; 3 Pom. Eq. Juris. §§ 1235, 1237; Husted v. Ingram, 75 N. Y. 251; Hale v. O. Nat. Bank, 49 N. Y. 626; Fowler v. M. L. I. Co., 28 Hun, 198; Brown v. Volkening, 64 N. Y. 76; Willetts v. Reid, 5 N. Y. St. R. 175; 42 Hun, 140; M. C. Co. v. Sperry, 9 N. Y. St. R. 342; 120 N. Y. 620 ; Vinch v. Anthony, 8 Allen, 536 ; Dagett v. Rankin, 31 Cal. 321-326; Grinnell v. Suydam, 3 Sandf. 132; Beach on Mod. Eq. Juris. §§ 287, 331, 939, 945; Story’s Eq. Juris. § 1251; In re E. R. F. L. Assn., 131 N. Y. 354.) The contract entered, into by the association with its members guaranteed the payment of death claims, and in the contract the reserve fund was pledged to fulfill the guaranty. (2 Beach on Mod. Eq. Juris. § 939 ; 132 N. Y. 540: In re E. R. F. I. Assn., 131 N. Y. 354; O’Brien v. H. B. Society, 117 N. Y. 310.) Death claimants are entitled to a fixed, and definite sum mentioned in the certificates. In contracts of insurance, where-there is any ambiguity, and where the interpretation is difficult, we should adopt that construction which the insurer had reason to suppose was understood by the insured. (Wadsworth v. J. & T. Co., 132 N. Y. 540; Hoffmam v. A. F. Ins. Co., 32 N. Y. 405; Laws of 1887, chap. 285; McMaster v. Ins. Co., N. A., 55 N. Y. 222; Kratzenstein v. W. A. Co., 116 N. Y. 54; Dilleber v. H. L. Ins. Co., 69 N. Y. 264;; Herrman v. M. Ins. Co., 81 N. Y. 188; White v. Hoyt, 73 N. Y. 505.) If there are conflicting rights, the language on which death claimants depend is subsequent, special and controlling. (Parshall v. Fggert, 54 N. Y. 18.) Tlieassets must be distributed as of the date of the commencement of this action, viz., September 23, 1892.. (McNally v. P. Ins. Co., 137 N. Y. 398; hiiblack on Ben. Soc. § 124.) A policy of life insurance is a contract to pay a. certain sum of money at a certain time after the death of the insured, and it is proper to allow interest on this sum from the time it becomes payable, (Niblack on Ben. Soc. 693,, § 360 ; F. Ins. Co. v. Gould, 80 Ill. 388; Supreme Lodge v. Zuhlke, 129 111. 398; Supreme Council v. Franke, 137 111. 118; Heislet v. Stose, 137 Ill. 393; H. Ins. Co. v. Lewis, 28 Fla. 209; M. T. Ins. Co. v. Robinson, 98 Ill. 324; Perine v. Grand Lodge, 51 Minn. 225 ; Newman v. C. M. Ins. Co., 76 Iowa, 56 ; Stowell v. Am. Assn., 23 N. Y. S, R. 706.)-These death claimants are creditors of the association, and. their claims are debts. (Vannatta v. N. J. M. L. Ins. Co., 31 N. J. Eq. 15; Commonwealth v. M. M. Ins. Co., 112-Mass. 116; A. Ins. Co. v. Swift, 10 Cush. 433; M. Ins. Co, v. Fuller, 8 Allen, 274; Sterling v. M. Ins. Co., 32 Penn, St. 75 ; N. E. Ins. Co. v. Butler, 34 Me. 451; Bacon on Ben, Soc. § 479.)</p> <p>The-rights of the parties are to be determined by the constitution and by-laws in force at the commencement of this action, (In re E. R. F. L. Assn., 131 N. Y. 354; Burdon v. M. S. F. Assn., 147 Mass. 360.) The funds in hand belong to the surviving members of the reserve class and the representatives of those who have died. They are not applicable to the payment of death claims of either “ life class ” or “ reserve class.” (In re E. R. F. L. Assn., 131 N. Y. 354; People v. Life Union, 83 Hun, 598; 145 N. Y. 606.)</p> <p>The Dwyer and Benson death claims, for the payment of which the July assessment was made, should he paid in full from the funds of the association in the hands of the receiver. (Hiblack on Mut. Ben. Soc. § 147; In re E. R. F. L. Assn., 131 N. Y. 380; Darrow v. F. F. Society, 116 N. Y. 541; O'Brien v. H. B. Society, 117 N. Y. 318; Wadsworth v. J. & T. Co., 26 J. & S. 88; 132 N. Y. 540; People v. City Bank of R., 96 N. Y. 37; Cavin v. Gleason, 105 N. Y. 256, 264; Baker v. N. Y. N. E. Bank, 100 N. Y. 30; In re Le Blanc, 14 Hun, 8; 75 N. Y. 598; 1. & T. N. Bank v. Peters, 123 N. Y. 272; Van Alen v. Am. Nat. Bank, 52 N. Y. 1; Dows v. Kidder, 84 N. Y. 121.)</p>

In December, 1884, Charles H. Moore, who was receiver of the estate of Roswell S. Burrows, deceased, commenced an action against the defendant and another to obtain a judgment determining that he, as such receiver, was entitled to two hundred shares of the capital stock of the ¡Miagara Falls International Bridge Company, which were in the possession of the defendant.

The nature of the action and the facts, so far as material, are stated in the opinion. The respondent bank, as a grantee and purchaser, had no right to ask or demand any affirmative relief upon any facts alleged in the answer or proven upon the trial. (Code Civ.

The nature of the action and the facts, so far as material, are stated in the opinion. The defendants’ structure is not and never has been any obstruction to any navigation of which the waters have ever been susceptible, nor any obstruction of the access from the jdaintiffs’ land to the navigable channel of the North river.

This action was brought in the Supreme Court to obtain a judgment declaring invalid the will of Mary Snelling, deceased, and the probate thereof. The complaint sets forth the death of the testatrix and the admission of her will to prohate. It alleges that it was not her will, that she was incompetent to make a will, and that the execution of the will was void for having been procured through undue influence.

This action was brought to recover from a mutual or co-operative insurance company, incorporated under chapter 175, Laws of 1883, the amount claimed to be due upon a certificate of membership and life insurance issued by the defendant. The facts, so far as material, are stated in the opinion.

This is an action of replevin. It was brought to recover the possession of a hearse of which the appellant claimed to be the owner, and which at the commencement of this action was in the possession of the respondent. Prior to January 19, 1893, the appellant, who was the keeper of a livery stable, had in his possession two black horses, one set of double harness, one coach, and the hearse in question.

<p>1. Fire Insurance —Appraisal at Instance op Company, Not a Waiver op Forpeiture. When an appraisal of the loss under a fire insurance policy is proper in any event, the mere fact that one was had at the request of the company has no hearing upon the question of a waiver of forfeiture.</p> <p>2. Laches in Assertion op Forfeiture. An election by the company to insist upon the forfeiture of a fire insurance policy for a breach of its conditions must be asserted within a reasonable time after acquiring knowledge of the breach.</p> <p>3. Waiver op Forfeiture Implied prom Inconsistent Acts and Silence — Chattel Mortgage. A waiver of a forfeiture of a severally valued fire insurance policy, for the breach of a warranty by the existence of a chattel mortgage upon part of the insured property, may he inferred, where, after knowledge of’ the mortgage, the companjr has made no exception of or discrimination against the mortgaged property in the negotiations for the settlement of the loss, and has objected to proofs of loss, including the mortgaged property, solely for the reason that they were not based upon the valuation awarded by an appraisal which the insured asserted to be fraudulent and void, without raising any other question than that of values, or saying anything about an intention to forfeit, until the commencement of an action against it upon the policy.</p> <p>4. Appraisal op Fire Loss—Grounds por Setting Aside — Concealed Bias op Appraiser. When a false statement is made by the representative of an insura nee company in regard to the attitude of a proposed appraiser of a fire loss, for the purpose- of inducing consent to his appointment, which is in that way obtained, and where concealment is practiced in regard to his real attitude to the company nominating him, and when in fact he is not disinterested, good ground is shown for setting aside an appraisal which is grossly below the actual loss sustained, although it has been concurred in and agreed to by the appraiser nominated by the insured.</p>

The case was brought up by a certificate from the Appellate Division, which certified the following question of law for decision: “ Whether, under the laws of the state of New York, in force at the time of the commencement of this action, the defendant can or cannot he held personally liable for the.debts of the F. J. Kaldenberg Company, set out and described in the complaint, by reason of the failure of the directors of said corporation to make and file a report during the…

Cboss-appeals from judgment of the General Term of the Supreme Court in the first judicial department, entered June 20, 1894, upon a submission of a controversy under section 1279 of the Code of Civil Procedure, which awarded the plaintiffs the sum of $5,324.66, with interest. ■ The facts, so far as material, are stated in the opinion.

This was a motion to dismiss the appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered upon an order made February 11, 1896, which affirmed a judgment in favor of plaintiff entered upon a verdict, upon the ground that the Appellate Division has unanimously decided that the verdict of the jury is supported by the evidence, and that no questions of law are raised by the appellant’s exceptions which can be reviewed by…

This was a motion to dismiss the appeal from judgment of the Appellate Division of the Supreme Court in the second, judicial department, entered upon an order made May 8, 1896, which affirmed a judgment in favor of plaintiff entered upon a verdict, upon the grounds: 1. That by virtue of the provisions of chapter 559 of the Laws of 1896, the judgment of the Appellate Division is not appealable to this court; 2.

This action was brought to recover $2,800 originally owing by Francis D. Iloyt to the plaintiff, which, she alleged, the defendants by an instrument in writing had agreed to pay. The facts, so far as material, are stated in the opinion. The question whether a contract is original or collateral is not to be determined by the consideration merely of the words used therein.

<p>Incorporation op Villages — Method op Voting on Proposition to Incorporate — Laws op 1870, Chap. 291, § 9. The provisions of the act for the incorporation of villages (Laws of 1870, chap. 291, § 9) have not been changed or repealed by the changes in the general election laws, or the laws requiring town elections to be had by means of the official ballot or ballot machines, and still regulate the method of voting to determine a proposition to incorporate a part of a town or parts of towns, not before organized for any purpose.</p>

<p>Banking—Collection of Dbaft Deposited with Unbestbicted Indobsement — Title to, and Application of, Pbooeeds. If the owner of a negotiable draft, payable out of the state to his order, indorses it generally to another, with an oral instruction to deposit it for collection, and the indorsee thereupon indorses the draft for deposit to his own credit, and deposits it, without limitation or further instructions, with a bank of which he is a customer, and the bank, merely because the draft is payable out of the state, makes a “short” entry thereof in the customer’s pass book, and on the same day forwards the draft by mail for collection, and on the next day makes a loan to the customer on his demand note, under a written agreement giving the bank a lien upon all his property and securities in its possession, and authorizing it to apply on all his existing or future obligations all moneys belonging to him in the hands of the bank on deposit or other-wise, and on that day the draft is collected by the collecting agent of the bank, and on the same day the customer makes a general assignment — the bank is entitled, where no question of good faith exists, to apply the proceeds of the draft, on receipt thereof from its agent in due course of business, upon the customer’s note, as well against the person who indorsed the draft to the customer as against the customer and his assignee, in the absence of any notification of a claim of ownership to the draft or its proceeds, or of any demand therefor, from such indorser, prior to the collection of the draft by the bank’s collecting agent.</p>

Also, appeal from an order of said General Term, made December 18, 1895, which affirmed an order of Special Term denying a motion for a new trial on the ground of newly-discovered evidence.

<p>1. Statutes—Construction. A strict and literal interpretation of a statute is not always to be adhered to, and where a case is brought within the intention of the legislature, it is withiu the statute, although by a technical interpretation it is not within its letter.</p> <p>2. Married Women — Assignment of Life Insurance Policies — Laws of 1879, Chap. 248. Chapter 248, Laws of 1$79, providing for the assignment by wives of insurance policies “ issued within the state of Hew York” upon the lives of husbands for their benefit, applies not only to policies issued by domestic but also to those issued by foreign life insurance companies; and the assignment by a wife, with the consent of her husband, of a policy issued by a Connecticut life insurance company in that state upon his life for her benefit and held within this state, is valid and vests the title to the proceeds of the policy in the assignee.</p> <p>3. Life Insurance Policy •— Stipulation against Assignment. Stipulations in a policy of insurance, issued upon the life of a husband for the benefit of his wife, against the assignment thereof, inserted solely for the advantage of the company, cannot avail the wife as against one to whom she has assigned the policy under the statute, where the company has declined to take advantage of the stipulations and has paid the proceeds of the policy into court.</p>

This was a motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered upon an order made April 18, 1896, which affirmed a judgment in favor of plaintiff entered upon a verdict. The nature of the action and the facts, so far as material, are stated in the opinion.

The nature of the action and the facts, so far as material, are stated in the opinion. The judgment is supported by findings of fact, resting on sufficient evidence, which have been sustained at General Term and cannot be reviewed further.

<p>Appeal from a judgment, convicting defendant of murder in the first degree.</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made December 26,1893, which affirmed a judgment in favor of defendant entered upon a verdict directed by the court.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The Statute of Frauds of the state of Maine contains the following provision: “ Flo contract for the sale of goods,, wares or merchandise for $30 or more shall be valid unless the purchaser accepts and receives part of the goods, or gives something in earnest to bind the bargain or in part payment thereof, or some note or memorandum thereof is made and signed by the party to be charged thereby, or by his agent.” (Rev. Stat. [ed. 1883], chap. 3, § 4.)</p> <p>This contract is governed by the law of the state of Flew York, and the Statute of Frauds of that state not having been pleaded, the defense that the contract is within the Statute of Frauds cannot be availed of. (Madder's Admrs. v. Frith, 6 Wend. 103; Vassar v. Camp, 11 N. Y. 441; C. P. Ins. Co. v. A. Ins. Co., 127 N. Y. 618; Trevor v. Wood, 36 N. Y. 307; Howard v. Daly, 61 N. Y. 362; Sanders v. P. B. F. Co., 144 N. Y. 209; P. M. Co. v. Hoffman, 3 Daly, 527; Waldron v. Ritchings, 9 Abb. [N. S.] 359; Backman v. Jenks, 55 Barb. 468; Schuenfeldt v. Junkermann, 20 Fed. Rep. 359.) The fact that the cotton was to be delivered at Lewiston, Maine, does not make this a Maine contract." (Hunt v. Jones, 12 R. I. 265 ; Dacosta v. Davis, 24 N. J. L. 319 ; Whart. on Confl. of Laws, § 693; W. C. S. Bank v. Low, 81 N. Y. 566 ; Dyke v. E. R. Co., 45 N. Y. 113; L. & G. W. S. Co. v. P. Ins. Co., 129 U. S. 397.) The Statute of Frauds of the state of Maine does not apply to this contract. (Pritchard v. Horton, 106 U. S. 136 ; Dacosta v. Davis, 24 N. J. L. 319 ; Story’s Confl. of Law's, § 262 ; Hunt v. Jones, 12 R. I. 265; Scudder v. Union Bank, 91 U. S. 412; Cochran v. Ward, 5 Ind. App. 89 ; Edwards v. Kearzey, 96 U. S. 595; Kling v. Fries, 33 Mich. 275; Denny v. Williams, 5 Allen, 1; Vidal v. Thompson, 11 Mart. [La.] 23; Gross v. Jordan, 83 Me. 380.) If the Statute of Frauds of the state of 27ew York applies to this contract, it cannot be availed of by the defendant because it has not been pleaded, and it does not appear on the face of the complaint that the agreement is one prohibited by the Statute of Frauds. (Wells v. Monihan, 129 N. Y. 161; Porter v. Wormser, 94 N. Y. 443; Crane v. Powell, 139 N. Y. 379; Hamer v. Sidway, 124 N. Y. 548; Washburn v. Franklin, 28 Barb. 27; Forward v. Harris, 30 Barb. 338; Rorer on Interstate Laws [2d ed.], 83.) There is a sufficient note or memorandum in Avriting to satisfy the requirements of the Statute of Frauds. (Browne on Stat. of Frauds, § 344 ; Justice v. Lang, 42 N. Y. 521; Peabody v. Speyers, 56 N. Y. 230; Crane v. Powell, 139 N. Y. 379; Hutchins v. Van Vechten, 140 N. Y. 115 ; Bird v. Monroe, 66 Me. 337; Gale v. Nixon, 6 Cow. 445; Peck v. Vandemark, 99 N. Y. 29; Sanders v. P. B. F. Co., 144 N. Y. 209; Raubitschek v. Blank, 80 N. Y. 478; Mentz v. Newwitter, 122 N. Y. 491.) The breach of the contract and the damages sustained by the plaintiffs were clearly proved. (Stokes v. Mackay, 147 N. Y. 223; Shorn v. R. L. Ins. Co., 69 N. Y. 293; Meyer v. K. L. Ins. Co., 73 N. Y. 516; Nichols v. S. S. Co., 137 N. Y. 471.)</p> <p>The objection that the contract alleged is not to be-governed by the Statute of Frauds of Maine, not having been raised at Circuit, is not available here. (Sterrett v. T. Nat. Bank of B., 122 N. Y. 659; Blair v. Flack, 141 N. Y. 53; Oliphant v. Burns, 146 N. Y. 218.) If the point could be raised it has no merit; for, if any contract ever was made, it was made in Maine; and, even if made in Yew York, it would be governed by the law of Maine — the place of performance. (3 Am. & Eng. Ency. of Law, 561; Jewell v. Wright, 30 N. Y. 259; Curtis v. D., L. & W. R. R. Co., 74 N. Y. 116; II. Nat. Bank v. Lacombe, 84 N. Y. 367 ; Forward v. Harris, 30 Barb. 338.) Yo contract at all was proven. (Hough v. Brown, 19 N. Y. 111; B. S. Co. v. M. C. R. Co., 134 N. Y. 15; Jenness v. M. H. I. Co., 53 Me. 20.) There was no error in the exclusion of testimony at the trial. (Browne on Stat. of Frauds, §§ 367, 368; Horton v. McCarty,. 53 Me. 394.) Yo sufficient memorandum within the requirements of the Statute of Frauds of Maine was. shown. (Jenness v. 31. H. I. Co., 53 Me. 20.)</p>

This action was brought to foreclose a mortgage for §9,000, dated September 1st, 1887, given by Cecilia Y. Arthur and others to Joseph M. Pray on an undivided interest in certain lands situate in the city of Brooklyn. On the eighth of October, 1887, said mortgage was assigned by the mortgagee to the plaintiff, and the assignment was duly recorded on the 21st of November in the same year.

This action was brought by a member of the police force of the city of Brooklyn to recover the difference between the amount of salary actually received by him and the amount claimed to be due him under the provisions of chapter 182, Laws of 1884. On the first day of January, 1890, the plaintiff was appointed patrolman upon the police force of the city of Brooklyn, and has held that position continuously since.

<p>Appeal from a judgment convicting defendant of murder in the first degree, and from an order entered on the minutes denying a motion for a new trial.</p>

The action was brought to recover three thousand dollars with interest from May 27, 1884, on a promissory note made by the defendant, of which the plaintiff claimed to be the owner and holder.

<p>Appeal from a judgment and order of the appellate division of the supreme court in the first department, affirming a judgment rendered in the Oyer and Terminer in and for the city and county of New York, convicting defendant of the crime of extortion; also from an order of the appellate division which reversed an order of the special term, shortening the time for hearing, the defendant’s application for a change of the place- of trial in this action, and which denied such application and vacated the stay of proceedings granted, to enable the defendant to have such application heard and determined.</p>

The nature of the action and the facts, so far as material, are stated hi the opinion. The plaintiff’s remedy is by hill to redeem, or for cancellation of the instrument. (Barnes v. Barnes, 20 D. C. 481; Kusch v. Kusch, 143 Ill. 353; Schell v. Plumb, 55 N. Y. 593.) The defense that the plaintiff has an adequate remedy at law is one that the defendants cannot avail themselves of, for the reason that they had failed to plead that defense in their respective answers.

The whole series of acts commonly called the racing laws are mere evasions of the letter and spirit of the constitutional prohibitions, and, therefore, void. (Const, of N. Y. art. 1, § 9 ; In re Sweeley, 12 Misc. Rep. 174; 146 N. Y. 401; In re Keymar, 148 N. Y. 219; People ex rel. v. Draper, 15 N. Y. 532; People ex rel. v. Albertson, 55 N. Y. 55; Laws of 1895, chaps. 570, 571, 572, 573; Penal Code, §§ 336-352; Laws of 1887, chap. 479 ; People ex rel. v. Fallon, 4 App.

<p>1. Veterans — Removal from City Appointive Position — Right to Hearing — Laws of 1893, Chap. 577. The statute (Laws of 1893, chap. 577), which confers upon veterans holding a position by appointment in any city or county, and receiving a salary from such city or county, the right to a hearing before removal is not rendered inapplicable merely because the incumbent may be performing duties of a public character, as distinguished from those merely private, and his acts of negligence or misconduct may not be imputable to the city or county.</p> <p>3. New York City — Warden of City Prison. Chapter 577, Laws of 1893, applies to a veteran holding the appointive position of warden of the city prison in the city of New York, and entitles him to a hearing before removal by the commissioner of correction of that city.</p>

Appeals from judgment of the General Term of the Supreme Court in the first judicial department, entered .March 29, 1894, which affirmed a judgment in favor of the plaintiff entered upon a verdict, and also affirmed an order denying a motion for a new trial. The nature of the action and the facts, so far as material, are stated in the opinion. The Brooklyn bridge is-a public structure used for public purposes.

Since the taking of the appeal William T. Wallis has died, and the action has been continued in the name of George T. Smith. This action was upon a promissory note in the following form: “ $1,100. Jersey City, N. J., Jan. 20, 1893.

The action was to recover upon a policy of insurance, issued by the defendant upon the life of the plaintiff’s husband. The complaint alleged the death of the insured from consumption of the bowels; that due proof of his death had been made to the defendant and a demand made for payment of the insurance moneys.

This action was brought against defendants as sureties upon an undertaking given on appeal by the Buffalo Carette Company to the General Term of the Superior Court of Buffalo, from an order denying a motion for a new trial made on the minutes in an action by the respondent herein against that company, in which he recovered a judgment for damages and costs.

This action was brought to restrain the operation and maintenance by defendants of their elevated railroad in Park Roav in the city of Dew York in front of plaintiff’s premises, and for the recovery of damages caused thereby.

The nature of the action, and the facts, so far as material, are stated in the opinion. This court has jurisdiction to hear the appeal as the title to real property comes in question. (Buckingham v. Smith, 11 Ohio, 288; Brown v. Kennedy, 5 H. & J. [Md.] 195; Clark v. Connor, 38 Vt. 469; Roath v. Driscoll, 20 Conn. 532; Belden v. Renmels, 2 N. H. 255 Brace v. Yale, 11 Allen, 443; Code Civ. Proc. § 2514, subd. 13.) .

This action was brought to obtain the foreclosure of a mortgage made by Jennie E. Sully and Edward P. Sully, her husband, to the plaintiff, dated February 10, 1869, to secure the payment of $5,Y50 in fifteen years from April 1, 1869, and interest semi-annually, according to the condition of a hond of the same date made by the mortgagor. The mortgage was a purchase-money mortgage, given upon conveyance of the mortgaged premises by the plaintiff and his wife to Jennie E. Sully.

<p>Appeal from order of the Appellate Division of the Supreme Court in the fourth judicial department, entered April 18,1896, which affirmed an order of Special Term confirming the report of a referee.</p> <p>The nature of the proceeding and the facts, so far as material, are stated in the opinion.</p>