Volume 4 — New York Miscellaneous Reports

<p>Under the laws of this state no person has an absolute legal right to demand a license to sell intoxicating liquors, and no power is vested in the courts to command by order the granting of such a license.</p> <p>The legislature cannot assign to the Supreme Court or the justices thereof the performance of the duties devolving upon boards of excise.</p> <p>By section 24 of chapter 401 of the Laws of 1892, as amended by chapter 481 of the Laws of 1893, the legislature could not have intended that the last official to exercise the discretion as to granting or refusing a liquor license should be a court or a judge thereof, for the reason that it was without power to require the Supreme Court or its justices to perform other than judicial duties. ■</p> <p>It will not be presumed that the legislature intended to transcend its power when the language of a statute is capable of another interpretation.</p>

<p>Chapter 481 of the Laws of 1893, which amends section 24 of chapter 401 . of the Laws of 1892, entitled “An act to revise and consolidate the laws regulating the sale of intoxicating liquors,” took effect on May 19, 1893.</p> <p>When it appears from the return to a writ of certiorari to review the proceedings of a hoard of excise commissioners, that an application for a hotel license was not considered upon its merits, as it was their duty to do, the matter will he sent hack to them for consideration and determination.</p> <p>From the return to a writ of certiorari to review the action of a hoard of excise commissioners in refusing to grant relator’s application for a hotel license, it appeared that the board did not pass upon the merits of the application, hut passed and entered upon its minutes a resolution to the effect that the reason why the license was refused, was that the majority of the hoard was elected by the people of the town for the purpose of refusing licenses. It further appeared from the return that the majority of the hoard was nominated and elected by electors opposed to granting licenses, and their election was deemed hy them to have been a determination hy ballot on part of the electors of the town in opposition to the granting of licenses, and such determination was supposed to be in accordance with some statute providing for local option. Held, that as the hoard erred in assuming the existence of a law preventing them from considering and determining whether licenses should he granted to applicants, their action amounted to legal error which was properly reviewable by certiorari under the statute.</p> <p>Although section 41 of chapter 401 of the Laws of 1892, which provides: “Nothing herein, except section 31, shall in any manner apply to any town where the majority of voters have voted for or hereafter vote for local prohibition until such towns shall reverse by vote such local prohibition,” seems to recognize the existence of a statute providing for local option, there was no such law at the time of its passage.</p> <p>Assuming that said section 31 authorizes a majority of voters to vote for local prohibition, and that thereafter and until the voters should reverse their decision no licenses should he granted, the action of the excise commissioners in this case could not he sustained, because the ballots were not cast in favor of local prohibition, but simply for candidates for the office of excise commissioners.</p>

<p>The majority of a board of excise commissioners were elected upon a no-license ticket. On certiorari to review their action in refusing to grant, the relator a license to sell intoxicating liquors, they made return that, they considered the application upon its merits, and refused to grant it. for the reason, among others, “that a license is not needed at that hotel, and that the sale of intoxicating liquors thereat would result injuriously to the community.”</p> <p>JBeld, that as it could not be said that commissioners of excise may not, in the exercise of their discretion, limit the number of licenses granted by them, and refuse to issue a license because there are already a sufficient number of places and persons licensed to sell liquor in their town, and, therefore, decide that an additional license is not needed, and the return being susceptible of such construction, the certiorari should be quashed, but without costs.</p>

The question in this case is whether a bona fide purchaser of railroad stock, “dividend on,” upon the Hew York Stock Exchange, is entitled to dividends declared, but not payable at the time of such purchase, as against the owner of the stock at the time the dividend was declared, who had indorsed an irrevocable power of attorney upon the stock certificate and pledged the stock for a time loan with parties who fraudulently, and without notice to the owner, had, before the…

<p>A mechanic’s lien is not vitiated by an honest error of judgment in stating what portion of work has been done and its value.</p> <p>Money held due, though not payable when mechanic’s lien was filed.</p>

<p>Memobaedum on motion for allowances.</p>

By the eleventh paragraph of the will of deceased, which was admitted to probate October 31,1889, among other things, he provided as follows: “And I do fully empower and direct toy executor and trustee to reduce and pay off by installments •or otherwise, as far as possible and convenient in their discretion, any and all mortgages on any portion of my estate, and for this purpose I empower them in their discretion to use and apply the proceeds of such of my real estate as…

<p>Alter the commencement oí an action, by a judgment creditor, to set aside as fraudulent and void as to creditors a conveyance of real estate by his judgment debtor, the plaintiff, with full knowledge of his rights, entered into a contract with the alleged fraudulent grantee for the performance of certain work upon the aforesaid premises. Held, that plaintiff by his conduct had elected to affirm the deed to L., and could not recover in this action.</p>

<p>' Appeal from judgment of District Court. The opinion states the case.</p>

<p>It is well settled that a lessor is not required to give actual, physical possession of demised premises to the lessee ; that he gives the lessee the . legal right to take possession is sufficient.</p> <p>Before May 1, 1888, when plaintiff’s lease took effect, the building upon the demised premises was condemned by proceedings taken by the fire department and declared unsafe and unsound, and an order made for a precept directing that it be taken down, which precept was never executed. AfSer this decision the plaintiff did not surrender its lease, nor did it claim an eviction; but remained, occupied and used the premises the same as before the adjudication. Held, that it was not relieved from its obligation to pay the rent reserved by the terms of the lease; whether the building was safe or unsafe, sound or unsound, was immaterial.</p> <p>Where a corporation, the tenant of a seven-story building, could have made slight alterations and have them charged to the landlord, and not only fails to make them, but fails to show any attempt to let the premises as they are, or to prove that their rental value is less and how much less than they would have been but for the alterations, it will not be ■allowed to offset against its liability upon a covenant to pay rent the full rental value of all the floors not used by it for its business as damages necessarily or naturally suffered by it because of the failure of the landlord to make the stipulated alterations.-</p> <p>In such case, if the tenant claims that the premises were unrentable because the alterations were not made, good faith requires that the tenant should make the repairs and charge them to the landlord; or at least show diligence in attempting to rent the premises as left by the landlord; but where alterations and improvements to be made by a landlord under a lease involves a large outlay, or where it is proved that the tenant has not the means to make them, the tenant should not be expected to make them.</p>

Appeal to the surrogate from an order entered on the report of the appraiser fixing the transfer tax upon the residuary estate.

<p>A person holding an equitable mortgage upon an undivided share in real property cannot pay the taxes assessed against the whole thereof and thereby become subrogated so as to obtain to the extent of the money so paid, a lien against the land which can be enforced by a sale.</p> <p>Plaintiff made a loan to one H., and as security therefor received a bargain and sale deed of an undivided eighth interest which the latter held in real estate in the city of New York. After the transfer, with a view to protect his interest in the property, plaintiff paid the taxes which were assessed against the whole property. In an action to recover the</p> <p>amount thus paid, by having the same charged upon the land, and the whole property sold to satisfy the same, held, that plaintiff acted in the matter as a mere volunteer and his complaint should be dismissed.</p> <p>One tenant in common of real estate cannot by paying the taxes upon the entire property acquire a lien thereon which can be enforced by a sale of the property, without his either proving a request on the part of his cotenants or showing that he was under a legal liability or compulsion to make such payment.</p>

<p>A. confessed judgment and all proceedings thereunder will be set aside where from a consideration of all the circumstances it appears to have been part of a scheme to hinder, delay and defraud creditors, although all the parties testify that there was no fraudulent intent.</p> <p>Action to have declared void, for fraud on creditors, a confessed judgment. The opinion states the case.</p>

<p>Under the law as it stood in September, 1891, a manufacturing corporation organized under the act of February 17, 1848, could not, in contemplation of insolvency, make a general assignment for the benefit of creditors without preferences.</p>

<p>Certiorari to review action of excise commissioners in refusing to grant a license to sell liquor.</p>

Appeal by defendants from a judgment entered on a verdict returned by jury against them, and from the order denying new trial.

Appeal by defendants from judgment against them entered on a verdict directed for the bank, and from the order denying motion for new trial.

<p>Appeal by plaintiff from judgment entered on a verdict returned against him.</p>

<p>Where an inquest, taken in an action, is afterwards opened and the cause finally tried, resulting in judgment for plaintiff, the taxation of two trial fees is proper.</p>

<p>In an action to recover for a wrongful discharge from employment as stage ■ manager for defendant, the proof showed that plaintiff was employed for the season of 1890-1891. which ended in May, 1891; that he entered on the performance of such employment in August, 1890, and continued therein until December 8, 1890, when he was discharged without cause. At the trial, plaintiff was nonsuited on the ground that the minds of the parties never met so as to make a contract, and that defendant’s manager had no authority to act for him in employing plaintiff. Held, error.</p>

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

<p>Appeal from judgment in plaintiff’s favor.</p>

<p>Goods belonging to plaintiff’s assignor were attached in an action in which the defendant herein was plaintiff. Thereafter, the warrant of attachment was vacated and set aside for irregularity, upon the ground that service of the summons on the defendant in the attachment suit was not made within thirty days after the granting of the warrant of attachment. In an action by plaintiff, as assignee, to recover the value of the property taken by the sheriff under the warrant of attachment, held, that the attachment being void, all acts taken by defendant thereunder were acts of trespass against plaintiff’s rights and property, and defendant having wrongfully obtained possession of said property, no demand before suit was necessary.</p>

<p>Appeal from a judgment entered upon the verdict of a jury, in favor of the plaintiff, on the 24th day of February, 1893, and from an order denying defendant’s motion for a new trial.</p>

The complaint is for work, labor and services of the fair and reasonable value, and at the agreed price, of $133.57. The answer alleged the delivery by defendants of certain cloth and materials to be made up into garments, and when completed, to be delivered by plaintiff to defendants’ place of business; the work performed by plaintiff to be paid for when delivered; that plaintiff did not have such cloth made up into garments, and that he did not deliver same to defendants.

<p>Appeal from a judgment entered upon the verdict of a jury on the 24th day of January, 1893, in favor of the plaintiff, and from an order denying defendant’s motion for a new trial.</p>

<p>Where, in a case depending upon the facts, the jury have found for plaintiff, a motion for a new trial on the ground of surprise, in that defendant did not produce two witnesses whose testimony, had they been in court, would have supported defendant’s testimony and that-of Ms witness, should be denied where the case is allowed to go to the jury upon the testimony as it stands, and defendant claims no surprise at the testimony on the part of the plaintiff and does not ask to withdraw a juror or for a postponement.</p>

<p>Appeal from an order denying a motion made on the part of defendant for a bill of particulars of plaintiff’s alleged claim for damages.</p>

The plaintiff was driving two horses attached to a brewery wagon filled with boxes of bottled beer. He drove down or west on Twenty-eighth street till he came to Third avenue, and turned into the west track of defendant’s street electric railroad. After driving a little way in a southerly direction, a car came along behind him and he turned into the east track to allow it to pass.

<p>In an action for damages for injuries alleged to have been sustained by plaintiff through the negligence of defendant’s servants, plaintiff testified that while passing under defendant’s elevated structure, some one called out “Look out, lady ” and pointed upwards; that she looked up and saw something falling from above and close to her head, and, fearing injury, she threw herself forward, and, in so doing, met with the injuries complained of. That the article which fell was a large wrench weighing some ten or fifteen pounds. Plaintiff further testified that this wrench struck the ground with great force close by her side; that she ascended the stairway near by, leading to defendant’s station, told the agent there of her mishap, and then hobbled home. No other witnesses were called by plaintiff to substantiate her statement. Held, that a motion for a nonsuit was properly denied.</p> <p>Defendant called five witnesses, -all employees of the Brooklyn City Railroad Company, for the purpose of contradicting plaintiff’s evidence, who testified to seeing the wrench fall; one of them testified that there was no woman within fifteen feet of the spot where the wrench fell at the time of its fall, and that a crowd gathered there within a minute, and the other four testified that when the wrench fell, they did not see any woman there and they contradict the other witness as to the gathering of any crowd. Held, that there was no such preponderance of evidence in favor of defendant as made it the duty of the trial judge to grant the motion to dismiss at the close of the testimony.</p>

This is an appeal from a judgment entered upon a verdict recovered at a trial term of this court, and from an order denying defendant’s motion for a new trial. The opinion sufficiently states the facts.

<p>Where a horse-car conductor undertakes to carry more passengers than can sit and stand within the car and both platforms are filled to their utmost capacity, and by the breaking of the rear platform a passenger is thrown to the street, sustaining permanent and serious injuries, the questions as to whether the platform was insecure to defendant's knowledge or in the exercise of proper care should have been known, and whether defendant was negligent in permitting so large a number of persons to ride upon the platform is for the jury.</p>

<p>A water-closet situated at the head of a stairway in a tenement house .overflowed, and its contents flowed down the stairs. Plaintiff, an upstairs tenant, slipped on the filthy matter and was precipitated down stairs, breaking her arm. Defendant’s son, who had the building in charge, testified that he went up and down the stairway daily. For several weeks prior to the accident the closet was out of repair and stopped up. Held, that the evidence justified a verdict for plaintiff.</p> <p>Defendant claimed that the evidence of a voluntary and absolute promise by defendant to compensate plaintiff should have been taken entirely from the jury on the ground that it was merely an offer to compromise. 1 Such evidence was admittted without objection on the part of the plain- ‘ tiff, and, before it was introduced, defendant’s counsel had brought out similar evidence on his cross-examination of plaintiff. The court instructed the jury to disregard any offer of compromise. Held, that defendant, by failing to object in the one instance, and by bringing out the testimony in the other instance, had waived her privilege.</p>

<p>One F. sold to C., personal property consisting of the appurtenances to a first-clasá saloon, including a bar, backbar and pump, upon which plaintiff held a chattel mortgage, which she surrendered on receiving one from C., which was duly, filed July 7, 1891. Thereafter, F. gave to defendant a chattel mortgage on the same property, as security for the purchase price of a backbar and pump sold to him on July 17,1891. On the foreclosure of his mortgage, defendant bought the property in, and removed it from the saloon sold to 0. In an action by the holder of the chattel mortgage, filed July 7, 1891, the jury, on conflicting evidence, found that plaintiff’s mortgage was not made in fraud of creditors, and that the bar, backbar and pump were not defendant’s property at the time plaintiff’s mortgage was made. Held, that a verdict for plaintiff would not be disturbed.</p> <p>Defendant undertook to prove that plaintiff’s mortgage was without consideration, and given with intent to defraud creditors. Held, that plaintiff was entitled to prove the conversation had at the time the mortgage was executed, for the purpose of showing the real consideration as well as the good faith of the transaction.</p> <p>A chattel mortgage, given in good faith, for an existing indebtedness, is valid as against a mortgage subsequently given for value parted with at the time.</p> <p>F., the only witness as to value, testified that the whole property taken was worth §1,600; it was admitted that the bar, backbar and pump cost defendant §575; no evidence as to value was given in rebuttal. Plaintiff had a verdict for §1,025. Held, not excessive.</p>

<p>Labor, services and expenditures rendered and made by a member of a church, without the request or authority of the society or its board of trustees, in sustaining charges presented by him against the pastor, cannot be recovered for in an action against the church society. •</p> <p>No authority could be implied from the character or nature of the services.</p> <p>A finding that plaintiff’s claim was duly ratified by the board of trustees, 7idd, not sustained by a fair preponderance of the evidence.</p>

<p>The owner of certain mortgaged premises devised the same to his widow for life, with remainder to his children, and further provided that, in case of the death of any child, the share of the one so dying should pass to the children of such deceased child. Held, that the only necessary parties defendant to an action to foreclose such mortgage were the widow and the children of the testator living at the time of its commencement.</p> <p>A designation of a grantee in a deed “as executrix,” is mere deseriptio personae.</p> <p>In an action to foreclose the mortgage above referred to, brought by an assignee thereof, the latter purchased at the sale, but subsequently conveyed the premises to the executrix of the mortgagor, who gave back tc him a new mortgage. In the deed and new mortgage she was described “as executrix.” On a foreclosure of this second mortgage, the mortgagee made the children of the testator and certain grandchildren parties defendant. Held, that there was a recognition on the mortgagee’s part of some arrangement by which the whole family of the testator were interested in the land. Held, further, however, on a. conflict of testimony as to whether process had been duly served on certain defendants in such second foreclosure action, that the evidence of a lawyer, who swears definitely to having made such service, would be accepted rather than that of women and then infants (evidently ignorant people) who have a strong personal interest in the result.</p>

<p>Where an agent, instead of turning over to his principal the avails of sales made by him as agent, loses the money at gambling, the principal may maintain an action for money had and received against the agent, and also against the parties who won the money.</p> <p>In several actions for money had and received, to recover money belonging to plaintiff lost by her agent by betting on a horse race and playing at “faro,” defendants, i. <?., the agent and those who won the money, under the impression that the action was brought under the statute relative to “betting and gaming” (1 B. S. 662), and that plaintiff could have no standing in court unless she brought her case within the provisions of the statute, demurred to the complaints on the ground that they did not state a cause of action. Held, that as the actions were not brought under the statute referred to, but were equitable in then-nature and look entirely to the question whether the defendants hold money which in equity and good conscience belongs to plaintiff, the demurrers should be overruled.</p>

<p>The common council oí a city, being a creature of the statute and invested with none of the attributes of sovereignty except such as are conferred by law, cannot transcend the limits of its delegated authority without subj ecting itself in a proper case to the restraining power of a court of equity.</p> <p>Although a common council is by its city’s charter made the judge of the qualifications and election of its members, and invested with power and authority to punish a member of the board of aldermen for improper conduct, neglect of duty, or violation of his obligations as such, and and in certain cases by expulsion, such authority must be exercised within the provisions of law, and in obedience to law and rules by which the common council are to be governed, and under which they are authorized to act.</p> <p>When plaintiff was elected president of the board of aldermen of the city of Albany, the rules governing the common council provided for the hearing of charges against the members of the common council as such, and required, as did also the city charter, a two-thirds vote of all the members elected, in order to expel a member. The rules further provided that no motion to alter, suspend or rescind any rule should be in order without unanimous consent of the council, unless notice thereof should have been given at the previous regular meeting.</p> <p>Without notice of an application to change the rules as was required, the common council, at a regular meeting and by a majority vote, adopted a resolution of the committee on rules amending one of the rules by incorporating therein a provision authorizing charges to be preferred against the president of the common council as such, and the appointment of a committee to investigate such charges, without extending to the party charged the privilege of objecting to two members of the committee as could be done by any other member of the council not acting as president. At the same meeting, charges were preferred against plaintiff as alderman at large and as president of the council, and proceedings were taken under such charges; a copy of the charges, of the resolution of the council, and of a notice of hearing were served upon him. Plaintiff appeared before the investigating committee for the sole propose of making, and did make, certain objections to such proceedings and to the right of the committee to entertain the same.</p> <p>In an action by plaintiff to restrain and enjoin the other members of the council from acting upon any report of said investigating committee in such wise as to remove plaintiff from his office and position as president, or otherwise to interfere with him in the execution of his duties as such president, and to have it adjudged the rules purporting and pretending to have been adopted by said council as aforesaid are not the rules of • said council, and that said council be enjoined from acting thereon or from taking any proceeding or action against plaintiff based thereon, or from removing him from his office as president, or any pretended proceeding or authority given» by such pretended rules, an injunction pendente lite was granted. On the hearing of an order to show cause why said injunction should not be continued until the final hearing and determination of the action, held, that the temporary injunction should be continued.</p> <p>The action of the common council, by which the rules were pretended to be amended, was a clear violation of the rule requiring a previous notice of application and the adoption of the amendment by a two-thirds vote. It was also a violation of the provision of the charter (Laws 1883, chap. 298, § 34), which provides: “ No ordinance shall be adopted, and no law, ordinance or by-law shall be rescinded or repealed, unless by a two-thirds vote of all the members elected to the common council; nor shall any such adoption or repeal be valid unless notice of such intended action shall have been given at the previous regular meeting of the common council.”</p> <p>When the vote was taken on the adoption of the amendment to the rule, the president decided that it had not been adopted for want of a two-thirds vote, as required by the rule. On appeal, his decision was overruled by a majority vote. Held, that by such action the amendment was not legally adopted.</p>

Upon the return of citations Hudson B. Farrington appeared and presented a claim to be proved against the estate, based upon a promissory note assigned to him by the payee, Madeline Harter, which was dated March 8, 1875, for §1,200, executed by Thomas R. Petrie and Stillman B. Sanders, payable one year after date with interest, and was the joint and several note of the said makers. Sanders died September 18, 1890.

Matter of the final judicial settlement of the accounts of Edward T. Mulligan as administrator of the goods, chattels and credits of Thomas Mulligan, deceased. On the 9th day of February, 1890, Thomas Mulligan, a resident of the town of Winfield, in this county, died at said town intestate, leaving a widow, Bridget Mulligan, and three sons, Edward T. Mulligan, James H. Mulligan and William C. Mulligan.

This is an application by Annie E. Haslehurst, mother o# the above-named infants, for an order requiring William M. Reckham, their general guardian, to advance an additional sum for the past support of said infants.

<p>Hearing of exceptions to report of a referee on an accounting by administrator.</p> <p>The facts appear sufficiently in the opinion.</p>

The deceased left an estate of over $200,000, about $195,000 of which was personal. He left a will in which, among other things, he states that on the 1st day of July, 1890, he gave to his daughter, Elizabeth W. Bartlett, fifteen railroad bonds of the denomination of $1,000 each, which gift he, by his will, confirms.

Appeal by defendant from a judgment entered in favor of the plaintiff upon the verdict of a jury, and from order denying defendant’s motion for a new trial,

<p>-On default, judgment was perfected against the firm of A. & S., the latter not having been served with the summons. In an action to charge S. with the amount of said judgment, it appeared that on November 7,1885, A. & S. purchased for and on account of plaintiff, certain railroad bonds which plaintiff paid for and deposited them with A. & S., who agreed to return them on demand. The same day the firm of A. & S. dissolved, of which fact plaintiff had due and timely notice, and A. continued the business on his individual account, assuming all firm obligations. On September 13,1887, plaintiff, by letter, made a claim on A. for the railroad bonds, and on October 4, 1887, made a new arrangement with A., ■and signed a paper acknowledging the receipt from A. of six certificates of stock which were to be held by him as a pledge for the loan to A. of the railroad bonds above mentioned, the six certificates of stock to be returned on delivery to plaintiff of the railroad bonds. Held, that S. on retiring from the firm became a mere surety for A., and that plaintiff had by the new arrangement with A., discharged S. from liability, and a direction to find for defendant was correct.</p>

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

<p>The jury found that, without plaintiff’s fault, but through the negligence of defendant, who occupied the upper floor of a building, there was an overflow of water from said upper floor, and goods of plaintiff, who occupied the lower floor, were damaged thereby. Held, that with a verdict for plaintiff for §350, the court on appeal would not interfere.</p> <p>The court allowed defendant to prove that he had directed one of his employees to notify an employee of plaintiff to turn off the stop-cock, and that the message was delivered, but refused to admit conversation by the two employees in the absence of both plaintiff and defendant. Held, that there was no error in the ruling; the mere conversation of the two employees was not material.</p>

<p>A court of equity having once acquired jurisdiction of a cause retains it to-the end, though adequate relief is reached hy a merely personal j udgment.</p> <p>June 19, 1891, defendant, having acquired the exclusive acting rights in an opera owned hy plaintiffs, agreed to produce the same at a theater-of which he was the manager following the opera then on exhibition there, which ran until February 13, 1892. Instead of producing plaintiffs’ opera after February 13, 1892, other attractions were produced under defendant’s management, who announced, in January, 1892, his. determination not to produce plaintiffs’ opera at all. In an action to enjoin defendant from continuing the use of his theater contrary to the; covenant with plaintiffs, and for damages, the contention finally resolved itself into an effort to recover damages, the contract providing-in addition to certain royalties that if on the 1st day of February, 1892, the defendant shall not have already produced said opera, he shall pay to the plaintiffs the sum of $2,000, in full payment for the first fifty performances given. The main defense was a failure by plaintiffs to-carry out a certain provision of the contract the performance of which the court found had been waived by defendant. Held, that under the-evidence and authorities plaintiffs were relieved from all imputation of neglect or default, and were entitled to judgment for $2,000, and costs. Held, further, that when, in January, 1892, defendant announced that he-, would not produce the opera at any time, plaintiffs were absolved from the necessity of any formal tender or offer of performance on their part.</p>

<p>Where individual property is insured against fire, taking in a partner is a “ change of title” avoiding the policy.</p>

<p>Appeal by defendant from a judgment entered upon the verdict of a jury, and also from an order denying a motion for a new trial made by the defendant upon the minutes of the judge presiding at the trial.</p>

<p>' This was a proceeding pm-porting to be brought under the provisions of chapter 269 of the Laws of 1880, to review by certiorari the action of the commissioners of taxes and assessments of the city of blew York in assessing certain bank shares of the relator in the Southern blational Bank of Hew York for purposes of taxation for the year 1893.</p> <p>The petition alleged the relator to be a nonresident, admitted ownership of the number of shares assessed, but claimed such excess of indebtedness over assets as relieved the bank shares of the relator from liability to assessment.</p> <p>The writ was sued out on the 10th day of July, 1893, and was made returnable on the 17th day of July, 1893, at a Special Term of the Supreme Court to be held at the Chambers thereof, at the court house, in the city of blew York.</p> <p>No return was made, but when the proceeding appeared upon the Chambers’ calendar the respondents raised the following objections:</p> <p>First. That as a matter of law under the act of 1880, issues raised by a petition writ and return cannot be heard except at a regular trial Special Term of the Supreme Court.</p> <p>Second. That as a corollary to the first proposition a return cannot be directed to be made at any other than a regular trial Special Term of the Supreme Court.</p> <p>Third. That in this proceeding, inasmuch as the writ was issued on the tenth day of July and a return directed to be made on the seventeenth day of July, less than the ten days limited by the provisions of chapter 269 of the act of 1880, that the writ must he dismissed.</p>

Motion by the plaintiff for an order “ striking out as frivolous, false and a sham the second pretended answer served in the above action, verified June 13, 1893, and served June 14, 1893, and on the grounds (1) that the entire answer is false in fact and insufficient in law for any purpose, and tenders no issue. (2) That the said answer contains no general or specific ‘ denial5 of any of the material facts alleged in the complaint.

Motioh by the defendant for a new trial on newly discovered evidence after a trial before a referee and judgment entered upon his report, and an appeal to the General Term of the fourth department, and an affirmance of the judgment entered upon the report of the referee, upon a decision made at the April General Term of 1893. Affidavits read in support of motion. Affidavits read in opposition to the motion.

<p>.Pboceedings to prove an instrument in writing as and for the last will and testament of Anna E. Burton, deceased.</p>

Certiorari upon the relation of Charles T. Watkins to review the action of John B. Smallwood, Stephen C. Yincent and James O. McClure, as commissioners of excise of the town of Warsaw in the county of Wyoming, in refusing to grant to the relator a hotel license for the sale of liquor.

Chables Zone, late of the town of Schuyler, died in the month of June, 1890, leaving him surviving his daughter, the plaintiff, Caroline Zone, his widow, and other children named as defendants. At the time of his death he was seized in fee simple of a farm consisting of about 190 acres of land, and some personal property.

<p>In civil cases, the party on whom the burden of proof rests performs his obligation by presenting a preponderance of the evidence.</p> <p>¡Plaintiff claimed that her stepdaughter when in her last sickness, and a few days before she died, gave her as a gift a bag containing personal property valued at $3,600. After the daughter’s death defendant, as her executor, took the bag and its contents and refused to deliver it on demand.</p> <p>In an action for conversion there was sufficient evidence to sustain plaintiff’s claim, and the court told the jury that plaintiff must prove her case by a fair preponderance of evidence. Held, on a motion for a new trial on exception to a refusal to charge that the evidence to prove the gift must be clear, convincing, strong and satisfactory, that the court gave the jury the true rule, and if the request involved the same proposition it was not error to refuse to charge it again.</p> <p>The court refused, at defendant’s request, to charge that plaintiff must establish the gift by the clearest, strongest and most unequivocal evidence. Held, no error.</p> <p>Defendant procured from plaintiff, who was old and feeble, a statement without advising her of its effect and without asking her anything about a delivery of the bag. Held, that a refusal to instruct the jury as to what their verdict should be in case said statement or a certain extract therefrom was true, was proper.</p>

<p>Action upon a promissory note made by defendant.</p>

Motion by the plaintiff for a new trial upon the minutes, after a nonsuit granted at the Circuit. The opinion states the case.

Upon a decision made by Judge Yann, June 2, 1893, a judgment was entered in Oneida county clerk’s office against the defendants, adjudging “ that the common council of the city of Utica, and the several members thereof, jointly and severally, and each and every one of them, and each and every one of the officers and agents of said city, be each and every one of them hereby is perpetually enjoined and restrained from making any contract, or doing any act or thing towards, or…

This is a proceeding to determine the amount of tax upon the estate of deceased under the “ act in relation to taxable transfers of property ” (Chap. 399, Laws of 1892).

The deceased by lier will bequeathed one-half of her estate, consisting of personalty, to her daughter Susan M. Warren, absolutely, and bequeathed the use of the other one-half to her other daughter, Isabella D. Gould, during her natural life, with remainder to her children. By a codicil, she bequeathed to E. Ludlow Gould, one of said children, her silver tankard; to John W. DeB.

Action to recover by a withdrawing shareholder of the defendant association, pursuant to the provisions of its alleged articles of association, which entitle such a shareholder to return of the amount paid on the shares issued to him, less all fines, and a ratable proportion of losses.

<p>Appeal from a judgment for plaintiff rendered by a District Court in the city of New York.</p> <p>Action to recover the agreed price for merchandise sold and delivered to defendant at the instance of its agent.</p>

Appeal by the plaintiff from a judgment of a District Court in the city of New York, rendered upon a trial before the justice thereof, without a jury. Action for services as a physician and surgeon.

<p>Appeal by plaintiff from judgment dismissing complaint.</p>

<p>Appeal from judgment entered upon a verdict of a jury, given by direction of trial judge, and from an order denying . defendant’s motion for a new trial.</p>

<p>Appeal from judgment in favor of plaintiff. Reported below, 2 Mise. Rep. 226, where the facts are stated.</p>

76, upon the decision of the trial justice, a jury trial having been waived. The facts sufficiently appear in the opinion.

<p>Appeal by defendant from judgment entered against him on verdict of jury and from order denying new trial.</p>

<p>Appeal by defendant from judgment entered against him on verdict of jury, and from order denying new trial.</p>

<p>Appeal by plaintiff from judgment of nonsuit.</p>

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

<p>Appeal from judgment dismissing complaint.</p>