Volume 40 — New York Miscellaneous Reports

<p>Action by a taxpayer.</p>

<p>Action to set aside a transfer of real estate.</p>

<p>Action for malicious prosecution. Motion for a new trial.</p>

<p>Motion to confirm the report of a referee.</p>

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

<p>Specific performance — Defects in the appointment of a guardian ad litem in foreclosure.</p> <p>In an action by a vendor for the specific performance of a contract for the sale of land which he had bought in, three years previously, upon a foreclosure of a mortgage which he had held upon the land, it appeared that on the day for closing the purchaser, defendant, had rejected the title upon the grounds that the foreclosure was defective in that the mother of an infant defendant, who she stated was aged fourteen, had petitioned for the appointment of a guardian ad litem, for him instead of the infant’s doing so himself, that although the venue of the guardian’s affidavit was Westchester county it was verified before a New York city commissioner of deeds, that the guardian did not state therein .that he had no interest adverse to the infant, and that the affidavit was verified before the petitioner’s attorney. Eight days after the day for closing the vendor attempted to cure these defects by an e<o parte order, amending nunc pro tunc the proceedings for the appointment of the guardian ad litem, changing the venue of his affidavit to the county of New York, making the petition of the mother recite that when she petitioned the infant was under fourteen, showing that the guardian had had no interest adverse to the infant and confirming the guardian’s acts. Two days later the vendor again tendered the deed and it was rejected.</p>

<p>The complaint in this action consisted of nineteen counts, the first of which is as follows: “ For a first, separate and distinct cause of action, that the defendants were, during all the times hereinafter, and still are, copartners in trade and engaged ini business in the City and County of ¡New York, State of ¡¡Slew York, under the firm name and style of Bootman & Robinson; that heretofore, to wit, on the 23rd day of May, 1901, at the said City and County of ¡New York, the defendants, copartners as aforesaid, unlawfully, wilfully and knowingly possessed four hundred and ninety-six (496) grouse and two hundred and thirty-six (236) quail during the close season for said grouse and quail respectively, contrary to the form of the statute in such case made and provided. That by reason of the premises, the defendants then and there became liable to a penalty of Sixty dollars and to an additional penalty of Twenty-five dollars for each bird, grouse and quail so possessed, to wit, the sum of Eighteen thousand three hundred dollars, and amounting in all to the sum of Eighteen thousand three hundred and sixty dollars. That thereafter, to wit, on the 6th day of July, 1901, at the State aforesaid, the Chief Game Protector of the State of ¡New York, duly ordered that this action be brought, and the same was and is brought on said order by the undersigned attorneys and counsellors at law, then duly, retained and employed therefor.”</p> <p>Counts n-Xni, both inclusive, were of the same general character.</p> <p>The fourteenth count is as follows: “ For a fourteenth separate and distinct cause of action, that the defendants were, during all the times hereinafter mentioned, and still are, copartners in trade and engaged in business in the Oity and County of Hew York under the firm name and style of Bootman & itobinson; that heretofore, to wit, on the 24th day of May, 1901, at the said City and County of Hew York, the defendants, copartners as aforesaid, unlawfully, wilfully and knowingly possessed certain wild birds, other than the English sparrow, crow, hawk, crane, raven, crow blackbird, common blackbird, kingfisher, and birds for which there is no open season, to wit, eight hundred and eight (808) plover, and contrary to the form of the statute in such case made and provided and without and not under the authority of any certificate issued under this act, to wit, An Act of the Legislature of the State of Hew York, entitled an Act for the protection of the Forest, Fish and Game of the State of Hew York, constituting Chapter 31 of the General Laws, passed February 19th, 1900, as amended by Chapter 91 of the Laws of 1901, passed March 12th, 1901. That by reason of the premises the defendants then and there became liable to a penalty of Sixty dollars and to an additional penalty of Twenty-five dollars for each bird, so possessed, to wit, the sum of Twenty thousand two hundred dollars and amounting in all to the sum of Twenty thousand two hundred and sixty dollars. That thereafter, to wit, on the 6th day of July, 1901, at the State aforesaid, the Chief Game Protector of the State of Hew York, duly ordered that this action be brought and the same was and is brought on said order by the undersigned attorneys and counsellors at law, then duly retained and employed therefor.”</p> <p>The fifteenth count, which is in substantially the same form, seeks to recover penalties for the possession of 876 English snipe, 602 plover, 1,416 snow buntings and 96 snipe.</p> <p>The sixteenth count seeks to recover penalties for the possession of 288 reed birds, 3,630 plover and 1,512 snow buntings.</p> <p>The seventeenth count seeks to recover penalties for the possession of 1,336 snipe and 3,168 sand-pipers.</p> <p>The eighteenth count seeks tó recover penalties for the possession of 720 reed birds, 5,760 snow buntings, 1,439 sand-pipers, 488 yellow legs, 150 plover.</p> <p>The nineteenth count seeks to recover penalties for the possession of 3,658 plover, 3,000 sand-pipers,- 4,800 snipe and 300 yellow legs.</p> <p>The defendants demurred to the amended complaint and to each of the causes of action therein set forth on the ground that it did not state facts sufficient to constitute a cause of action.</p> <p>Section 30 of the Forest, Fish and Game Law, as in force when the plaintiffs alleged causes of action accrued, read as ■follows: “The close season for Wilsons (called English snipe), yellow legs, plover, rail, mudhen, gallinule, surf-bird, curlew, water-chicken, jack snipe, bay snipe, or shore bird shall be from May first to August thirty-first, both inclusive.”</p> <p>The act contained no provision declaring that there shall be no open season for sand-pipers, snow buntings and reed birds.'</p> <p>Section 33 read as follows: “ Wild birds, other than the English sparrow, crow, hawk, crane, raven, crow blackbird, common blackbird, kingfisher, and birds for which there is no open season, shall not be taken or possessed at any time, dead or alive, except under the authority of a certificate issued under this act.”</p> <p>Section 39 provided: “A person who violates any provision</p> <p>of this article is guilty of a misdemeanor and is liable to a penalty . of Sixty dollars, and an additional penalty of Twenty-five dol- . lars for each bird taken or possessed in violation thereof.”</p>

<p>Supplementary proceedings — Debtor having no existence in law — Construction of foreign statutes — Revocation of an attorney’s authority.</p> <p>The Illinois statute of 1893, relative to an assessment life or accident insurance company, authorizing dissolution for insolvency and making no provision that the corporation might after dissolution be continued long enough to wind up its affairs, superseded the Illinois statute of 1874 providing that an insurance company might for such a purpose be continued for two years after dissolution.</p> <p>Therefore, where a creditor of an Illinois assessment life insurance company, reincorporated under said act of 1893, recovers and enters judgment against it in the State of New York after it has been dissolved in Illinois but within two years of the dissolution, she cannot take supplementary proceedings upon the judgment and examine here a third party as to property of the corporation alleged to be in the third party’s hands and this because the corporation had no existence, in contemplation of- law, when the judgment was recovered.</p> <p>The fact that an attorney, retained by the corporation before its dissolution, appeared for it upon the trial of the action, which the said creditor brought against it here, is not material as its dissolution revoked his authority to appear for it or bind it.</p>

<p>. x Action for partition. — .</p>

<p>Municipal corporation — Its right to reclaim and remove a sidewalk for which the abutting owner would not pay.</p> <p>Where an assessment, proper in amount, for a flagged sidewalk in a village is resisted by the grantee of an abutting lot, is void because made as against the “ estate ” of her grantor, and is never corrected, relevied or collected in any way, the village, when charged by its charter, through its trustees, with the. care and custody of village property and empowered to lay sidewalks and levy an assessment for the cost, may reclaim and remove the sidewalk. The village does not lose dominion or control of its materials by placing ■them on the street in question.</p>

<p>Injunction.—.Reinstatement in a labor union.</p> <p>Upon a motion to vacate an em parte temporary injunction enjoining a labor union from treating the plaintiff (whom it had expelled for being, contrary to its rules, a member of the National Guard and with whom it refused to work) as not a member of the union and from refusing to grant him full membership and a full membership card, it appeared that the plaintiff had entered the union as an apprentice, that he never had received any card other than an apprentice card, that he never had been paid the wages of a journeyman, and that the notice of expulsion did not mention his status in the union. It further appeared that the union denied that he had ever been a full member or had had such a card.</p> <p>Held, that, under the rule that one seeking relief by injunction must show himself clearly entitled thereto, the injunction must be vacated.</p>

<p>Pleading — Demurrer to complaint for insufficiency — Principal bound by agent’s acts.</p> <p>Upon a demurrer to a complaint upon the ground that "it does not state facts sufficient to constitute a cause of action, the question is not whether it contains redundant or irrelevant matter but whether it contains averments which go to make up a complete cause of action.</p> <p>A demurrer admits the truth of all the facts stated in the complaint.</p> <p>Every intendment and inference which can be derived from the complaint must be used to sustain it.</p> <p>Where the principal accepts the fruits of his agent’s contract he is bound by all the instrumentalities through which the benefit was obtained.</p>

<p>Action to set asido and cancel of record the discharge of a mortgage and to reform said instrument.</p>

<p>Motion to set aside a verdict.</p>

<p>’Town—Contract for water-mains and sewers — Ii. 1900, ch. 451.</p> <p>A complaint, against a town, by contractors with commissioners of a town water district appointed by the town board under L. 1900, ch. 451, for damages for a breach preventing full performance of a contract for water mains and sewers, is not demurrable by the town upon the ground that the water district created by the act is a municipal corporation and this because the act confers upon the water ■district no powers of municipal government.</p> <p>The water district remains an integral part of the town; the town :may lawfully incur indebtedness for the water system as a local improvement for the general welfare and may lawfully become •primarily liable for the cost, although it is to be assessed ultimately ■upon the residents of a particular district of the town.</p> <p>The provision of the said act which confers upon the town board -authority to appoint commissioners and, upon them, authority to •execute the contract, is legal.</p> <p>The contract binds the town, although made in the name of the •commissioners.</p> <p>The contract may lawfully provide for sewers as well as water mains.</p>

Suit to restrain a nuisance, or continuing trespass, .which injures the plaintiffs’ real property, and for damages. The Yew York and Brooklyn Bridge is suspended on the Brooklyn side of the East River about 80 feet above the roof of the plaintiffs’ building, which is about 20 feet away from the said bridge, i. e., from a line dropped from the southerly side thereof.

<p>Action to recover a sum of money.</p>

<p>Demurrer to complaint.</p>

<p>Action upon a contract.</p>

<p>Divorce — Filing the interlocutory judgment — Code Civ. Pro., § 1774.</p> <p>An application for a final judgment cannot be granted in an uncontested action for a divorce unless it appears that the interlocutory judgment was filed in the office of the county clerk more than three months before the application. Filing the interlocutory judgment with the clerk of a particular Part of the Supreme Court is not filing it with the clerk of the court, the county clerk.</p> <p>That the interlocutory judgment was signed more than three months before the application is not sufficient.</p>

<p>Divorce — When the interlocutory judgment may be made final — Code Civ. Pro., § 1774.</p> <p>The date of the entry of the interlocutory judgment, and not that of the filing of the referee’s report, establishes the day from which is to be reckoned the three months after which a judgment for a divorce may be made final,-unless for sufficient cause the court in the meantime shall have otherwise ordered.</p>

<p>Consideration — Complaint for breach of promise, with seduction — Pleading conditions precedent — Code Civ. Pro., § 533.</p> <p>The compromise of a doubtful claim is a good consideration for a promise to pay money and the promisor cannot subsequently escape payment by showing that the claim was invalid.</p> <p>A complaint by a woman alleging that for a promise of $50,000 she released a man, since deceased, from all claims on account of or arising out of his having seduced her under promise of marriage and from “ any other action which this plaintiff then had or might have had ” is not demurrable by his executors on the ground that a woman can have no cause of action for her seduction, for, the clause as to “ any other action which this plaintiff then had or might have had ” may be taken to mean an action for a. breach of the promise to marry, with seduction as an element of damage.</p> <p>Where the plaintiff has pleaded generally the performance by her of conditions precedent she may properly add an allegation of something else which she agreed to do and which she did.</p>

<p>Action for damages.</p>

<p>Action by a stockholder on behalf of himself and others similarly situated to compel an accounting. Motion to continue pendente lite an injunction.</p>

<p>Stay of another action — Foreclosure of a mechanic’s lien — Filing lien necessary to a personal judgment — Code Civ. Fro., §§ 3403, 3412.</p> <p>Although there is a substantial identity in the parties, subject-matter and issues of two actions brought respectively in the Supreme and another court, the Supreme Court should not stay the other action where there cannot be obtained in the Supreme Court action by a party entitled to relief the entire relief which he can obtain in the other action.</p> <p>In an action to foreclose a mechanic’s lien a personal judgment against the contractor cannot be obtained by his immediate subcontractors unless they have filed a lien.</p> <p>Where o the assignee of lienors under subcontractors has a suit pending in the Supreme Court to foreclose the lien, in which the contractor is a defendant, and it appears that neither his immediate subcontractors, nor their trustee in bankruptcy, made a party defendant, have ever filed a lien for a debt due by him to them for labor and materials furnished to the premises, his motion to stay another action brought against him at law'by the trustee in another court for the same debt must be denied by the Supreme Court because the trustee, for failure to file a lien, could not recover in the Supreme Court action any personal judgment against the contractor and, therefore, the relief obtainable, in the two actions, by the trustee is not the same.</p>

<p>Deposition taken within for use without the State — Power of nonresident commissioner to act here — Code Civ. Pro., §§ 914, 91Sr 919.</p> <p>It is not an objection to the validity of a subpoena, duly issued by the Supreme Court of the State of New York upon a commission issued- by a foreign court to take testimony within the State of New York for use without that State in an action pending in the foreign court, that the commissioner named is not a resident of this State and is a resident of the foreign State.</p> <p>The commissioner derives all his authority from the foreign State and court and when be comes here to act we recognize by comity his authority and selection.</p> <p>Our Legislature may by law enforce attendance before any person named by the foreign court.</p>

<p>Contempt, civil — Disobeying an order to complete on a judicial sale — Defects in practice and papers — Code Civ. Pro., §§ 14, 2269.</p> <p>A motion to punish a purchaser at a foreclosure sale for a contempt in having failed to comply with an order directing him to complete must be made by an order to show cause and is fatally defective if made on notice of motion.</p> <p>The papers are fatally defective where they fail to show any facts from which the court can adjudge that any right or remedy of the plaintiff has been defeated, impaired, impeded or prejudiced.</p> <p>Where the court by an oversight ordered the purchaser to complete on the very day the order was made, it directed the. order resettled to the end that it might determine whether it would direct completion of the sale or a resale, the purchaser to be liable for the deficiency and for the expenses of the resale — either disposition being admissible.</p>

<p>Motion to quash writs of certiorari.</p>

Sayles, furnished by Solomon Sayles, his surety in a certain action in the Court of General Sessions in and for the county of Hew York, entitled “ People of Hew York against Henry L. Sayles,” and that the amount paid in satisfaction of said forfeiture by said Solomon Sayles be paid and returned to him; that if necessary a reference be ordered to take proof of the facts and circumstances stated in the moving papers and for such other and further relief as may be just and…

<p>Jurisdiction — Lost by “ holding open ” a matter — Contempt of an order — Code Civ. Pro., § 2471a.</p> <p>A county judge who, after having made an order under Code Civ. Pro., § 2471a, requiring a person, appointed to fill an alleged vacancy in an office, to surrender its books and papers to a claimant, by election, of the office, is restrained by the Supreme Court from the further hearing of the proceeding, cannot, without communicating or making any note or entry of his determination, “ hold open ” the proceeding for twenty-four days and until the restraining order has been vacated and then, without notifying the said appointee, or his counsel, of the resumption of the proceeding, proceed to “ inquire into the circumstances ”, and thereafter, there being no appearance for the appointee or any opposition, commit him to jail until he delivers the said books and papers or is discharged according to law.</p> <p>The county judge by “ holding open ” the proceeding, and not adjourning it for a definite time as required by Code Civ. Pro., § 2471a, loses jurisdiction.</p> <p>It is a fatal defect where neither the order directing commitment nor the commitment describes definitely the books and papers which the appointee is required to deliver.</p>

<p>Action to recover instalments of alimony under a foreign decree of divorce. Tried before the court without a jury.</p>

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

<p>Fire insurance broker — Breach by his principals of a contract requiring them to insure “ use and occupancy ”— Meaning of the phrase — Broker’s profit on rebates.</p> <p>Where an insurance broker sues merchants for'the alleged loss he-sustained by their failure to comply with so much of a contract, (authorizing him as agent to insure their buildings, stock, fixtures, etc., for not less than the market value for a term of years at a uniform rate per - annum of one dollar on a hundred and pay the premiums) as required them to insure “ use and occupancy,” he is entitled to nominal damages where it appears that they did not insure “ use and occupancy.”</p> <p>The phrase “ use and occupancy ” refers to the business use of which the property is capable in its existing condition and does not include either profits of the business or the salaries of two salesmen whom the defendants employed by the year.</p> <p>Under such a contract, where running policies of the standard form are canceled by the insurers and the premiums paid are retained by them pro rata only, the defendants cannot counterclaim against the agent the difference, in the amount of the rebates, between what they would have been upon the basis of a dollar a hundred, the contract rate, and what they were on the basis of the lower rate paid by the broker and named in tb.e policies, and this because when he delivered the policies to the defendants his liability ceased and ' they thereupon assumed direct contractual relations, with the insurers, binding them to accept on cancellation whatever the policies stipulated.</p>

Arrear from an interlocutory judgment of the Special Term of the City Court of the city of Hew York, overruling a demurrer to the complaint, with leave to answer on payment of costs.

<p>City Court of the city of New York — Costs, after notice of trial, where a disagreement is followed by a verdict — Mileage.</p> <p>. Only one item of costs, after notice of trial, can be taxed in the City Court of the city of New York where the jury disagree upon the first trial and find a verdict upon the second.</p> <p>Prospective mileage cannot be taxed as sheriff’s fees where there is no proof that mileage will amount to any sum whatever.</p>

Term of the Gity Gourfc of' the city of Hew York, affirming an order of the Special Term,, denying defendants’ motion for a new taxation of costs.

<p>Warehouseman — Liability at law on his contract to insure goods stored and thereafter burned — Rule as to best evidence — Apportionment of insurance moneys when unnecessary.</p> <p>Where materials to be manufactured are deposited with ware-housemen in reliance upon their assurance that the materials will be insured against fire under existing general policies held by them, the owner of the materials may, upon their destruction by fire while in storage, recover at law of the warehousemen, pro rata, upon the basis of the insurance moneys they recovered for their entire loss where existing general policies paid them cover his property and exceed his loss.</p> <p>Where at least two paid policies, sufficiently describing the materials and exceeding their value, are in evidence, the rule requiring the production of the best evidence is not violated by admitting, upon the part of the plaintiff, the proofs under those policies, although they describe all the other policies not in evidence, nor is the rule violated by permitting one of the warehousemen to testify that they have all the policies.</p> <p>Where the warehousemen have thus received on the two policies money enough to pay the plaintiff, who sues for himself alone, the terms and conditions of the other policies are not material, as there is no necessity to go into equity for an apportionment of all the insurance moneys among all the losers.</p>

<p>Costs — On. a discontinuance after the parties have settled the action between themselves.</p> <p>Where the parties to an action settle it between themselves and the attorneys for the defendant, after having been refused by the attorneys for the plaintiff a discontinuance without costs or further time to plead, are compelled by the conduct of those attorneys to interpose an answer alleging the settlement and to file a nbte of issue and serve a notice of trial, the subsequent motion of the plaintiff’s attorneys to discontinue without costs will not be granted except on payment of the defendant’s costs and disbursements of the action and of the motion.</p>

<p>Master and servant — Complaint for wages, alleging performance — Excuse for nonperformance. ■</p> <p>Where a person, hired in 1901, by a corporation, now insolvent, for five years at a yearly salary payable in equal weekly installments, sues for salary unpaid for twenty-three weeks and. pleads the contract in its effect and alleges that he has " duly performed all the conditions thereof on his part,” his. complaint should not be dismissed upon the theory that he has alleged, and has not proved, performance for five years, for the complaint must be deemed to allege performance only during the time for which he sued.</p> <p>Where the servant is to be, but is not,, paid weekly, his abandonment of the sendee does not estop him from recovering what he has earned.</p>

<p>Appeal from a judgment of the City Court of the city of New York, in favor of the plaintiff, entered in the office of the clerk of the City Court of the city of New York, on the 14th day of November, 1902, upon the verdict of a jury for the sum of $378.13 damages and costs, and also from an order, entered in said clerk’s office on the 11th day of November, 1902, denying the defendants’ motion for a new trial made upon the minutes, on the ex•ceptions, and because the verdict was contrary to the evidence, ■contrary to law, against the weight of evidence, and for excessive damages.</p>

<p>Negligence — In starting a street car — Passenger holding on to handrail after the car started — Conduct of her escort in an emergency — Intervening superseding cause.</p> <p>A street car conductor is guilty of negligence where he without any warning starts his car while a young girl, who has grasped the hand-rail with her right hand and has one foot on the step of the car, is trying to board it. °</p> <p>It is not negligent for her to keep hold of the hand-rail, where the car is proceeding rapidly, even though it causes her to be dragged half a block.</p> <p>The fact, that her escort, who had been running after the car, then caught up with it and drew her from it, does not, if his negligence be imputed to her, make her negligent as matter of law, although he may not have exercised "the best judgment in the emergency, and this rule is particularly applicable where it appears that substantially all her injuries were on her right side and were caused by her clinging to the hand-rail with her right hand.</p> <p>The jury, and not the court, must determine whether any of her injuries were due to her escort’s act, whether he acted rashly, and also whether his act amounted to an intervening cause superseding the effect of her own negligence, if any.</p>

Appeal by the landlord from a final order made in the Municipal Court of the city of Yew York, eighth district, borough of Manhattan, dismissing a summary proceeding, brought to recover possession of demised premises for nonpayment of rent.

Appeal by the plaintiffs from an order made in the Municipal Court of the city of Hew York, second district, borough of Manhattan, discharging the defendant from arrest and providing that no body execution should issue exonerating the sureties on defendant’s bail bond.

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

Appeal by the defendant Joseph D. Iler from a judgment rendered in favor of the plaintiffs in the Municipal Court of the city of Kew York, first district, borough of Manhattan.

<p>Appeal by the defendants from a judgment entered in the Municipal Court, eighth district, borough of Manhattan, in favor of the plaintiff.</p>

Appeal by the plaintiff from a judgment rendered in favor of the defendant in the Municipal Court, sixth district, borough of Manhattan.

Appeal by the defendant 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>Municipal Court of the city of Mew York — Jurisdiction lost by a justice unless he files his decision within fourteen days.</p> <p>A justice of the Municipal Court of the city of New York loses jurisdiction of an action therein unless he renders judgment therein, and also files his decision, within fourteen days of the final submission of the action.</p>

<p>Appeal from a judgment of the Municipal Court of the city of New York, tenth district, borough of Manhattan, entered on the 21st day of November, 1902, for the sum of $228.84 damages and costs.</p>

Appeal by the plaintiff from a judgment dismissing the complaint in the Municipal Court of the city of Rew York, eleventh district, borough of Manhattan.

<p>Evidence — Admissibility and proof of admissions — Practice in the Municipal Court of the city of New York where the plaintiff fails to prove his case.</p> <p>Admissions which a party to an action made upon a former trial, thereof are admissible against him upon a second trial as declarations against his interest.</p> <p>They may be proved by the stenographer’s minutes of the former-trial, as embodied in the return on a prior appeal, where the judge, who conducted that trial has certified that the minutes are correct.</p> <p>Admissions on a former trial may be proved by a person who-heard them mhde.</p> <p>A plaintiff, who does not prove his cause of action in an action in the Municipal Court of the city of New York, should be non-suited, but it is erroneous for the court to render a judgment for the defendant.</p>

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

Appeal by the plaintiff from a judgment rendered in the Municipal Court of the city of New York, eighth district, borough of Manhattan, on the 14th of November, 1902, and filed and entered in the office of the clerk of that court on the same day, dismissing the complaint on the ground of lack of jurisdiction.

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

<p>Appeals from the Municipal Court of the city of New York, second district, borough of Manhattan.</p>

■ Motion by the defendant to set aside the verdict and to dismiss ■the action upon the ground that the contract found by the jury is illegal as against public policy.

<p>Crimes — Certificate of reasonable doubt as to a conviction of murder in the second degree — Erroneous charge as to homicide — Insistence of the trial court upon a verdict.</p> <p>A proper case for the issue of a certificate of reasonable doubt as to whether a judgment should stand convicting a defendant of murder in the second degree in having, after attempting to pry open a window in the night time in the rear of a house to commit burglary, and while trying to escape through the rear yards of the block, killed some ten minutes later a man who was trying to prevent him from escaping by a fire escape on the rear of another house on the opposite side of the block, is presented where the trial judge refused to instruct as to manslaughter, and charged that at the time of the homicide defendant was attempting to commit a burglary, although he had desisted therefrom and was fleeing.</p> <p>The conduct of the trial judge, in twice sending for the jury without their having asked for any instruction or having communicated with the court, and in volunteering to further instruct and help them, and telling them that a disagreement would be a miscarriage of justice, and urging upon them the expense of the trial as a reason for agreeing, and other like considerations, considered a further reason-justifying a certificate of reasonable doubt.</p>

Action to recover for death by accident on an accident insurance policy for $5,000. The policy was dated August 10, 1892, and the death occurred September 29, 1892. Only the first premium had accrued. At the close of the evidence for both sides counsel for defendant claimed there was no question of fact and moved for a direction of a verdict for defendant.

Motion to set aside an execution against the person of the defendant. The plaintiff obtained judgment for $15,391.65 against the defendant herein August 6, 1901, and on August thirteenth following issued execution against the defendant’s property to the sheriff of Chemung county, the defendant being then confined in Elmira Reformatory, situated in said county. Said execution was returned unsatisfied.

<p>Partnership — Dissolution because one partner excluded the other — Money judgment as an incident to equitable relief—Apportionment of a bonus for being taken into a law partnership.</p> <p>Where a lawyer of experience takes a young lawyer as a partner in consideration of ¿ bonus or premium and thereafter excludes him from a knowledge of the details of the business and treats him with discourtesy, the younger lawyer may bring an action for a dissolution and in it the court may award him a money judgment for his share of the bonus, but this money judgment results only from the exercise of equitable jurisdiction in determining whether there should be a dissolution.</p> <p>The-bonus or premium should in such case be apportioned on the basis of the actual and of the agreed duration of the term, the senior partner to retain pro tanto for the time elapsed, the junior partner to be repaid the balance.</p>

<p>Demubbeb to complaint.</p>

<p>Demurrer to affirmative defenses in defendant’s answer</p>

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

<p>Benefit insurance — When the beneficiary’s rights vest —Action by her to reinstate a suspended policy where the insured was not shown to be dead.</p> <p>Under a policy of benefit insurance, securing to the beneficiary, a wife,, upon the death of the insured, her husband, a certain sum in a widows and orphans’ benefit fund, and also reserving to him the right arbitrarily to change the beneficiary at any time, she has no vested rights in the fund until he dies.</p> <p>Therefore, where he has merely disappeared, she has no title upon which to maintain an action, “ to reinstate with full force and effect ” the policy, designed to test the validity of the legislation and action of the benefit order under and by which it, after his disappearance, passed a law requiring a member to report to the council within six months after receipt of a notice sent by registered mail to his last known place of residence or, in the alternative, be suspended, and then suspended him when, after such notice and within six months thereafter, he failed to report to the council.</p> <p>While the husband is living he alone can test the validity of his suspension.</p>

<p>Judicial sale — Purchaser need not complete where the validity o£ the title depends upon a disputable question of fact.</p> <p>A purchaser upon a judicial sale should not be compelled to complete where the validity of the title depends upon a question of fact the proof as to which, made on the application, might be changed on a new inquiry or is open to opposing inferences.</p> <p>' He should not be compelled to complete unless it is clear beyond a reasonable doubt that he will receive what he contracted to buy.</p>

<p>Foreign stock corporation — Keeping and exhibiting a stock book — Refusal of inspection — Peremptory mandamus.</p> <p>Within the Stock Corporation Law (L. 1892, ch. 688, § 53, as amd. L. 1897, ch. 384, § 3) requiring every foreign stock corporation “ having an office for the transaction of business in this state ” to. keep therein a stock book and have it open for stockholders’ inspection daily during business hours, an office of the stock transfer agents of such a corporation maintained in the city of New York is one “ for the transaction of business in this state ” and there the corporation must deposit and exhibit the book and may be compelled to do so by mandamus.</p> <p>A “ refusal ” to^ permit a stockholder inspection is sufficiently made out where the transfer agents or those in charge of that office have for a' month met, with evasive answers only, the stockholder’s repeated demands.for an inspection.</p>

<p>New York city — Exemption of a social settlement from water assessments refused — L. 1908, ch. 605, § 8.</p> <p>•A building in the city of New York, adjoining, owned and used by, a church, in part for its own purposes and in part for those of a social settlement' there conducted by its officers, is not entitled to exemption from water assessments under L. 1902, ch. 605, § 2, as the statute grants exemption to a social settlement as an independent entity only, while the double uses to which the building is put make it impossible to distinguish those of the settlement from those of the church.</p>

<p>Action for the recovery of a sum of money.</p>

<p>Crimes — Indictment of the head of a New York city department for letting a contract over $1,000 to a bidder not the lowest*— Statutory construction —L. 1892, ch. 677, § 31; 1897, ch. 378, § 419; 1901," ch. 466, § 419.</p> <p>An indictment found under the charter of the city of New York (L. 1897, ch. 378, § 419) of the head of a city department for letting a contract over $1,000 to a bidder other than the lowest, in a case where the head of the department has not rejected all bids and the board of public improvements has not determined that it is in the public interest to accept a bid other than the lowest, would, under the rule that unless a contrary intent appears the striking from a statute of a provision essential to support an indictment under it makes it inoperative as to offenses committed before the later act, ordinarily be nullified by the repeal by the amended charter (L. 1901, ch. 466, § 419) of the words “ board of public improvements ” anti, the substitution therefor of the' words “ board of estimate and apportionment ”, and this because there is not now in existence any board of public improvements whose prior consent to such a letting is now required.</p> <p>The indictment is, however, saved by the declaration of the Statutory Construction Act (L. 1892, ch. 677, § 31) that all criminal proceedings, commenced under a statute repealed and pending immediately prior to the repeal, may be prosecuted to final effect in the same manner as they might if such provisions were not repealed.</p> <p>Section 31 of the Statutory Construction Act is applicable to all legislation passed after it.</p> <p>There is nothing in the amended charter of 1901 to show a legislative intent that said section 31 should not apply to section 419 of the charter of 1897.</p> <p>The amended charter, in substance, expressly declares that the new section 419, substantially the same as the old one, is to be deemed a continuation of the old one.</p> <p>The charter makes the price the test of bids, and therefore the court' cannot' consider the question whether the higher hid the Are commissioner unlawfully accepted may not prove the lowest because of the better quality of the article furnished thereby.</p> <p>It cannot be held that there was no lowest bidder merely because each of two bidders bid the lowest price offered.</p>

<p>Motion for a judgment on the pleadings.</p>

<p>Res adjudicata — Judgment on the merits on demurrer — Subsequent reversal by the Court of Appeals of the doctrine held below.</p> <p>A judgment of the Supreme Court, dismissing, on the merits and after a demurrer, a complaint on a contract upon the ground that the contract was illegal, the issue of validity having been directly involved, is res adjudicata in another action, between the same parties and upon the same contract, brought by the same plaintiff to recover a different item of damage thereunder.</p> <p>Where the plaintiff has never appealed from the judgment he' must be deemed to have acquiesced in it, and cannot now take advantage of the fact that six years later the Court of Appeals, in another action but upon a similar contract, decided that a contract like the plaintiff’s was legal.</p>

<p>Crimes — Motion in a capital case for a new trial for newly discovered evidence — Code Crim. Pro., § 465, subd. 7.</p> <p>A motion for a new trial of a capital ease for newly discovered evidence cannot be granted unless there is a reasonable.presumption that the reception of the evidence upon the trial would have changed the verdict rendered.</p> <p>New proof, tending to show that an accomplice of the defendant, the principal witness for the prosecution, had sworn falsely when 1 he testified that he liad never been convicted of a felony, held insuffi- ■ cient for a new trial.</p> <p>New evidence of two tramps and criminals, impeaching the accomplice’s statement that he was with the defendant at the place of and almost up to the moment of the murder and tending to show that the defendant could not have been within forty-five miles of the place of the murder when it was committed, rejected as fabricated.</p> <p>New proof by affidavit, that ten days after the murder the accomplice admitted having committed it, rejected as incredible.</p>

Action to recover losses amounting to $13,662.42 on a policy of insurance, issued by the defendant, a New Jersey corporation,, to the American Cotton Co., plaintiff’s assignor, the risk being-for loss, or damage by fire, flood, stranding, sinking, derailment or collision. The policy insured all of the cotton presses of the said American. Cotton Co. “ located at any point or place throughout the United!

<p>loan association — Usury — Equities of borrowing members where the association is insolvent.</p> <p>1 An agreement, by the terms of which a savings and loan association, incorporated under L. 1851, ch. 122, exacts from a borrowing member not only interest on a loan made by it but also premiums 'thereon, is not usurious.</p> <p>Where the association becomes insolvent and a receiver thereof proceeds to foreclose a mortgage given by a member as security for money borrowed from the association, such member should be *> charged with the loan and interest thereon to judgment but cannot be charged with premiums agreed to be paid. Any premiums paid by such member must be credited upon the loan.</p> <p>Dues on stock paid in by such member are not to be considered in the foreclosure action and can be neither charged therein to the member nor offset in the member’s favor against the loan.</p> <p>All moneys so paid in as dues must await the final distribution by the receiver and the member must accept such dividend thereof aa the courts may declare.</p>

<p>'Appeal from a judgment of the Municipal Court of the city of Syracuse, for $57.72 damages and $15.37 costs, in favor of the plaintiffs.</p>

<p>Motion to set aside verdict for $4,000 rendered in favor of the plaintiff, and against the defendant, at the March .trial term of the Supreme Court, Albany county.</p>

Application by petitioner for a special town meeting, asking that the four propositions under the Liquor Tax Law be resubmitted to the electors of said town.

<p>Fraud — Promise which the promisor never intended to perform — ' Husband and wife.</p> <p>A promise to do a future act, intended to induce and inducing the promisee to part with his property, if made by the promisor with no intention of performing, constitutes actionable fraud.</p> <p>A complaint, by a man living apart from his wife, in which he alleges that she, in order to induce him to convey to her his farm, falsely promised to return to him and cohabit with him during the remainder of his life, that he conveyed in reliance upon the promise, that she made it to defraud him of his farm, and that she did not keep the promise or intend to keep it when she made it, states a good cause of action for setting aside the conveyance to her.</p>

Appeal by the defendants from a judgment of the Municipal Court of the city of Hew York, fourth district, borough of Manhattan, rendered in favor of the plaintiff upon a trial had before the court without a jury.

<p>Certiorari to review the proceedings of the commissioners of taxes in assessing the personal property of relator.</p>

<p>Application for a peremptory writ of mandamus commanding the defendant to enforce those laws of the State of Hew York which prohibit tlie employment on Sunday of all labor except for works of necessity and charity and which prohibit on that day all public exercises and dramatic and theatrical performances.</p>

<p>Action to compel specific performance of a contract.</p>

<p>Before Mr. Justice Gaynor as a magistrate.</p> <p>The defendants, who are a captain of police and three patrolmen under him, were arrested under a warrant issued by a Justice of the Supreme Court acting as a magistrate. The charge against them was the crime of oppression under section 556 of the Penal Code. The defendants after being arraigned before the said magistrate moved to dismiss the case on the ground that the facts charged in the deposition did not show a criminal offence.</p>

<p>¡Foreclosure — ¡Referee’s fees in New York county — Commissions — Compensation where the action is settled before any sale — Auctioneer not entitled to fees on adjournments.</p> <p>The fees of a referee, appointed to sell in an action of foreclosure triable in the county of New York, are governed solely by the Consolidation Act (L. 1882, ch. 410, § 1088).</p> <p>The referee is also entitled to commissions and these are fixed by Code Civ. Pro., § 3297.</p> <p>The total of his fees and commissions cannot exceed fifty dollars unless the mortgaged' property sold for ten thousand dollars or upwards.</p> <p>Where the owner of the equity of redemption pays the judgment after the printing of the notice of sale but before sale made, the referee is not entitled to any commissions and is entitled to no fees under the Consolidation Act except for receiving the order of sale ■and posting the notices thereof and for adjourning the sale, not exceeding three times.</p> <p>There is no statutory authority for paying the auctioneer fees for adjournments of the sale and no such disbursement can be allowed the referee.</p>

<p>Sale — Vendor’s election as to the manner of his performance — Vendee’s option to order more goods, how lost.</p> <p>An executory contract to deliver “ 200 to 300 tons ” of pig iron, 25 tons in November “ and balance as ordered within the next six months ” is sufficiently performed by the delivery by the vendor of 200 tons and this under the rale that where an obligation may bd performed in one of two ways the obligor has a right to elect in which way he will perform.</p> <p>If the contract is to be construed as giving the vendee an option to order an additional 100 tons at the price fixed, the vendee lost its option by failing to exercise it within the six months next after the date when the contract was made.</p> <p>Delay, in delivering the 200 tons, when acquiesced in by the ' o vendee, does not extend the latter’s time to exercise its option to ■ order the additional 100 tons.</p>

<p>Hew York city — Reasonable curtailment of the time of a laborer in department of highways — Acquiescence.</p> <p>An assistant foreman of street repairing in a borough of the city of New York, appointed to his position from the civil service list and who is paid wages for his work, cannot, after being with others put on three-quarters time for about nineteen weeks by the city depart- ' ment of highways because its annual appropriation would otherwise have been exhausted, recover of the city for the quarter days he was laid off, as such a curtailment of his day’s labor is not unreasonable under the circumstances, and is within the power of the head of the department notwithstanding the provisions of the Civil Service Law.</p> <p>Where he weekly signs, by making his mark, a payroll whose heading states that the payment is in full, and where he understands that he is being paid for all the work he has done, he must be deemed to have acquiesced in the reduction of his time whether or not he knew the tenor of such heading and although he protested against the reduction when the order was promulgated.</p>

<p>Reference — To determine an attorney’s compensation upon a substitution — Costs — Practice where the justice goes out of office.</p> <p>A reference, to determine what compensation should be given the attorney in an action, ordered upon a motion for the substitution of a new attorney, is one merely for the referee to take testimony and report his opinion, in aid of the conscience of the court.</p> <p>Tbe referee has no power to give the original attorney costs against his client; and where there are no costs there can be no extra allowance.</p> <p>The motion remains before the court, and where the justice who> heard the motion goes out of office pending the reference, it is proper practice for the original attorney, or his counsel, to bring the matter again before the court by moving to confirm the referee’s report in his favor.</p>

<p>Mandatory injunction — To restrain a police department from, exhibiting or publishing the photograph and measurements of a suspected criminal — Bight of privacy — Libel.</p> <p>Mandatory injunctions are rarely allowed on an interlocutory application and then only in extreme cases where the right thereto is established with indisputable clearness and where the final result may otherwise fail to afford complete relief.</p> <p>A person, arrested by the police force of New York city upon suspicion of having committed a crime and whose photograph and Bertillon measurements were then taken by the department, cannot have it ordered by mandatory injunction to destroy or surrender the negative, all copies, and the record of the measurements.</p> <p>He cannot have the department restrained from exhibiting or publishing them upon the ground that a trespass was committed against him when he was compelled to sit for his photograph, as that trespass is past.</p> <p>He cannot have such relief upon the ground that his right of privacy has been invaded, for no such right exists in the State of New York.</p> <p>Injury to his character and reputation constitutes nothing more than a libel and the publication of a libel cannot be restrained by injunction.</p> <p>His remedy, if any, is at law.</p>

<p>Application to revoke and cancel a liqnor tax certificate.</p> <p>The petitioner alleges, upon information and belief, that on Sunday, the 23d day of ¡November, 1902, the holder of said liquor tax certificate, Edward P. Lehr, personally and by his agents, servants, bartenders, etc., etc., at the place designated in said certificate, viz., premises ¡No. 955 Amsterdam avenue, Hew York city, did wrongfully and unlawfully have open and unlocked a door and entrance from the street, alley, yard, hallway and adjoining premises to the room where liquors were sold and kept for sale, when it was not necessary for the ingress or egress of himself, etc., and did admit and allow to remain in such room persons not members of his family, etc., to wit: Andrew Frank, George Seim, Charles A. Donnelly, Benjamin G. Halsey, etc.</p> <p>Fifth. That two glasses of whiskey were sold, one to Andrew Frank and one to George Seim — which were paid for and drunk on the premises.</p> <p>Sixth. That two glasses of whiskey were sold to Charles A. Donnelly and Benjamin G. Halsey on the same day.</p> <p>Seventh. That liquor was sold to unknown on same day.</p> <p>The certificate holder refused to answer on the ground of constitutional privilege.</p>

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

<p>Basement — Bight of way — Adverse enjoyment — Presumption of a grant.</p> <p>'• Where the owner of a tract of land, having highways on two sides i of it, continuously maintains for nearly thirty years a passageway across the tract for access from his dwelling-house on the tract to the said highways, his two sons, between whom his will divided the tract, take their shares burdened with the artificial arrangements which he created, and a person claiming under the son who received the dwelling-house cannot be restrained from use of the entire passageway by a person claiming under the other son.</p> <p>An uninterrupted and open enjoyment of the passageway by the defendant and his predecessors for twenty years and more raises a presumption of a grant and this presumption becomes conclusive / when it is not rebutted.</p>

<p>Action to recover the penalty on a bond.</p>

<p>Attorney — Refused leave to continue an action after the parties had settled it.</p> <p>The parties to an action have a right to settle it and where they have done so the attorney for the defendant will not be permitted to continue the action in order to get costs against the plaintiff as compensation for services rendered his own client.</p>

<p>Telegraph corporation. — The addressee of a dispatch cannot recover the penalty imposed by L. 1890, ch. 566, § 103.</p> <p>No action can be maintained under the Transportation Corporations Law (L. 1890, ch. 566, § 103) by the addressee of a telegraphic dispatch for the penalty imposed upon a telegraph corporation for its neglect or refusal to transmit such a dispatch with impartiality, good faith and in the order in which it is received, and this because the statute expressly limits the right of recovering the penalty to the sender of the dispatch, or one desiring to send it, and entitled to .have the same so transmitted.</p>

<p>Action to collect taxes levied by the city of Rochester for the years 1899, 1900 and 1901.</p>

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

<p>Contract — Public policy — Agent hired, for a contingent compensation to' get orders for Government supplies.</p> <p>An agreement, to compensate an agent for procuring orders from the United States Government for supplies for its vessels by giving him one-half of the net profits on the orders he obtained, is not void as against public policy and is enforcible by the agent against his principal.</p> <p>An owner of goods has a right to employ an agent to sell them to the government and the employment is valid where there is no proof that the agent was expected to or did resort to improper methods or unfair dealings in procuring the orders.</p>

The testatrix, Maria B. Mount, late of the city of New York, died October 3, 1899, leaving a last will and testament dated December 22, 1880.

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

<p>Injunction—Delaying a public work to enforce private rights. ■</p> <p>McCabe and Brother, subcontractors, under general contractor McDonald, for sections 13 and 14 of the Manhattan subway, appointed, with McDonald’s consent, one Hunt as superintendent of the McCabe contract. McCabe, having summarily discharged Hunt and declared his own contract with McDonald terminated, wished to remove the plant, when Hunt, who claimed that his contract of employment with McCabe made him his partner, declared an intention of carrying out the contract and alleged an interest in the plant as a partner. McCabe obtained herein an injunction temporarily restraining Hunt from carrying out McCabe’s contract and also restraining McDonald and the Rapid Transit Subway Construction Company from carrying out any contracts made between McDonald and McCabe through Hunt as McCabe’s agent or superintendent. The court, having found Hunt not a partner of McCabe, held on a motion to continue the injunction,</p> <p>That Hunt should be restrained from carrying out McCabe’s contract.</p> <p>That, as between Hunt and McCabe, the latter owned the plant and was entitled to remove it, exercising care and speed, but that he must not remove any part of the plant essential to preserve the work until a reasonable time had elapsed for the substitution of another plant.</p> <p>That the order to be entered must contain nothing preventing McDonald from proceeding with the work under other contracts he might thereafter make therefor or from employing Hunt on the work or from contracting with him for it.</p>

<p>Ejectment — New trials — Terms — Code Civ. Pro., § 1525.</p> <p>A second new trial in ejectment is a matter of favor but will be granted where the defendant’s defeat on the first new trial may have turned upon questions of pleading and of the order of proof which may be obviated on the next trial by an amendment of the answer and a strict compliance with the rules as to the introduction of evidence.</p> <p>The defendant must pay all costs, but need not pay damages awarded the plaintiff for the value of the use and occupation of the premises nor double damages awarded for willfully withholding them.</p>

<p>Future estate — When vested.</p> <p>Where a testator devises and bequeaths his residuary estate, for two lives, to trustees, orders them to deem the corpus divided into a certain number of shares, directs them to collect the income and distribute it annually among named beneficiaries of these shares, and, after the lapse of the two lives, devises and bequeaths the corpus among the beneficiaries in such manner that the parties, theretofore receiving the income only, shall receive and become vested with the estate and property, out of which such income arose, in the same relative shares and proportions in which they were entitled to such income, and there is an absence in the will of any gifts over, words of survivorship, gifts to a class or to issue or to legal representatives, a beneficiary takes a vested interest in the principal of his share upon the death of the testator which he may devise before the expiration of the trust term.</p>

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

<p>Libel — Complaint — If plaintiff select and complain on a particular meaning for the words he is hound by it and cannot on the trial fall hack on another meaning — Special damages.</p> <p>In libel the plaintiff may always avoid a meaning of which the words complained of are susceptible by confining his complaint to a particular meaning of them, but he is bound by the meaning he-selects and if he fails on it he cannot fall back on the general meaning of the words.</p> <p>No special damages are alleged in a complaint unless the items thereof are alleged.</p>

<p>Costs — Under the general answer of an infant.</p> <p>The interposition, upon the part of an infant defendant, of a general answer to the complaint raises an issue which requires proof, the resulting inquiry is a trial for the purposes of costs to the infant, and the trial is none the less one because the witnesses thereat were not cross-examined in the infant’s behalf.</p>

<p>Supplementary proceedings — When an attorney must disclose a client’s communication — Code Civ. Pro., § 835.</p> <p>Where, after the claim of a judgment creditor had accrued, the judgment debtor transferred his house, representing nearly all his property, to his wife for one dollar, and she borrowed money on the house and died and by her will made him her sole beneficiary for life, the court held that an attorney for the wife, who had received from her a considerable part of the money she borrowed on the house, must disclose to the unpaid judgment creditor why he received the money and what disposition had been made of it, and this because the attorney, upon receiving the money, became her agent or attorney in fact as to it and to that extent lost his privilege to refuse, under Code Civ. Pro., § 835, to disclose a communication made him by her, his client.</p> <p>The attorney cannot be excused from answering upon, the ground that the money belongs to the wife’s estate.</p>

<p>'Action upon contract.</p>

<p>Action for salary.</p>

Application to set aside the return and canvass of the vote of the town on the local option questions voted upon at the last annual town meeting.

<p>Appeal from a judgment of the justice’s court in favor of plaintiff.</p>

Action to recover a deposit made with the defendant by John Ruoff. The complaint alleges that the depositor, John Ruoff, is dead, and that the plaintiff was appointed his administrator, and the answer denies each of these allegations.

<p>Trial of an issue of law raised by a demurrer to matter pleaded as an affirmative defense to the complaint.</p> <p>The complaint is that the defendant knowingly kept a vicious dog, and allowed it to be at large, and that it bit the plaintiff.</p> <p>After what purport to be denials, comes the following, pleaded as a defence, in the answer:</p> <p>“ That at the time and place mentioned in the complaint the plaintiff was a trespasser, and unlawfully upon the premises of ■the defendant, and that whatever damages or injuries she sustained, if any, were the result of the wrongful, negligent and unlawful act of plaintiff ”.</p>

<p>Tax — Form of assessment against a nonresident partnership.</p> <p>An assessment against nonresident partners, for personal taxes, made in the firm name is void under the Tax Law (L. 1896, ch. 90S, § 21, as amd. by L. 1899, ch. 712, § 3) as it governs and requires the assessment to be made against the partners as individuals.</p>

<p>Motion to quash a writ of certiorari.</p>

<p>Trust — Savings bank deposit — Intent of donor.</p> <p>Where it was agreed between a savings bank and the two daughters of, an aged depositor, confined to her bed for many months by an accident and needing some of her deposit and not a party to the conversation, that her account should be changed on the books of the bank so as to run “ in trust ” for one of the daughters and this was done, the court held, in an action brought by the executor of the depositor against the bank and that daughter, that her mother had no intention of creating a beneficial interest for her in the money and that what was left of it belonged to the executor as such.</p>

<p>Application ■ to vacate an order for the examination of a witness before beginning suit.</p>

<p>Examination before trial — As to alleged fictitious sales of stock.</p> <p>Where customers of stock brokers sue them to surcharge their accounts rendered, as containing items representing fictitious transactions, and the said accounts do not show who the buyers and sellers were and the moving papers of the customers allege that the information cannot be obtained except from the stock brokers, the customers are entitled to examine them before trial upon.this material point as otherwise the customers could not refute any statement which the stock brokers might make on the trial in regard to the pretended purchases and sales.</p>

<p>Motion to maintain an injunction pendente lite.</p>

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

Motion by defendant Fish for leave to withdraw her answer and to have a reasonable allowance of time within which to answer or demur, or make any motion herein, and also to require plaintiffs to furnish defendants certain information concerning her co-defendants.

<p>Liquor Tax Law — Procedure for revocation.</p> <p>The unconstitutionality of the amendment made in 1900 (ch. 367, § 9) to subdivision 2 of section 28 of the Liquor Tax Law, requiring the holder of a liquor tax certificate when brought into court for alleged violations, to file a verified answer tendering an issue or suffer revocation of his certificate, does not nullify the whole scheme of revocation provided by said subdivision 2 but leaves unimpaired the procedure as established by that subdivision in its original form.</p> <p>The court held an answer unnecessary but ordered a reference to take proofs and report.</p>

<p>Municipal corporation — Viaduct erected by statute for a “ street use ” — Consequential damages to easements not recoverable by abutting owner.</p> <p>Where a municipal corporation acting under and in accordance with a statute erects, upon and over a street of which it owns the fee, a viaduct for the public benefit and to carry the street at a higher level, the viaduct is lawful as an erection for a “ street use ” and the Legislature has power to authorize it without providing compensation to property owners affected thereby.</p> <p>An abutting owner who has thereby suffered consequential damages to his easements of light, air and access can recover no damages of the city as he must bear his loss as an incident to the welfare of the community.</p>

<p>Heaeiwg upon the return to writ of certiorari to review the refusal of respondent to issue a liquor tax certificate upon the relator’s application.</p>

<p>Action in equity for the dissolution of an alleged partnership or joint adventure, and for an accounting.</p>

<p>Action to collect arrears of taxes.</p>

<p>Equity — Duty of fraudulent agent to account to principal — Discovery or notice of the facts of the fraud — Statute of Limitations — Laches — Code Civ. Pro., § 382, subd. 5.</p> <p>Where the plaintiff, the financial backer of a corporation and interested in it as creditor bondholder and stockholder, having become involved requests the defendant its president to procure' financial aid for it from a capitalist and the defendant subsequently and in 1893 induces the plaintiff to transfer all his stock to him upon the false statement that the capitalist requires the transfer as a condition of rendering such aid, equity will on the ground of fraud compel the return by the defendant of such of said stock as stands on the books in his name, or in the names of his nominal transferees, and make him account for such of it as cannot be returned and for all dividends where the evidence tends to show that the plaintiff neither discovered the facts constituting the fraud, nor was put on inquiry in regard to them, until 1898 and the action was begun in 1900.</p> <p>No question of laches, in the strict sense of that term, can be involved in an action brought under Code Civ. Pro., § 382, subd. 5 and particularly where the parties have not changed their positions.</p>

<p>Evidence — Impeaching one’s own witness.</p> <p>Where a passenger of a street railway company sues it for damages for personal injuries alleged to have been sustained by him by the starting of its car before he had had time to alight from it and the conductor thereof, when called by the defendant, corroborates the plaintiff’s statement, the defendant cannot subsequently prove by the conductor his hostility to the defendant, a prior inconsistent statement made by him and a report he made to the defendant, and, by others, how the report came to be made, what the custom was in such matters and how and why the conductor had been discharged by the defendant — and this because such evidence is not admissible as relating to the issues of the controversy and the defendant cannot show inconsistent statements of its own witness, and inconsistent facts, for the purpose of impeaching him.</p>

<p>Municipal Court of the city of Mew York — Removal to City Court — Estoppel — Laches.</p> <p>Within L. 1901, ch. 466, § 1366 and Code Civ. Pro., § 3216, a defendant waives his right to remove a case from the Municipal to the City Court of the city of New York only by obtaining an adjournment after issue joined; and, accordingly, such right is not lost where the defendant obtains, on the return day in the Municipal Court, an adjournment in order to join issue and make a motion to remove and on the adjourned day makes that motion.</p> <p>Where the plaintiffs subsequently serve a reply entitled in the City Court and in that court demand a bill of particulars they submit themselves to its jurisdiction and are thereafter estopped to move to remand the action to the Municipal Court, and particularly where they wait eight months before making that motion.</p>

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

<p>Action against two joint debtors — Compromise with one and recovery of the balance against the other — Code Civ. Pro., §§ 1942, 1946.</p> <p>In 1901 the plaintiffs, as executors, sued Weisberg and Minden, as partners, although they had. dissolved partnership in 1899, upon a lease, made them as partners by the testator, for rent and water rates payable under it. Minden having applied on the trial to amend his answer and for a stay, the court severed the action on the plaintiffs’ motion and they, in Nov. 1902, recovered judgment against Weisberg for $950.81 and in satisfaction and compromise thereof accepted of him $500. The plaintiffs then served a supplemental complaint and demanded and recovered herein, in Dec. 1902, of Minden $450.81, the balance of the judgment. He appealed, e Held, that Weisberg and Minden were joint debtors as well as</p> <p>partners between themselves, and that, within Code Civ. Pro., §§ 1942, 1946, the plaintiffs could compromise with Weisberg without releasing Minden from the residue of the demand or precluding a continuance of the action against him.</p> <p>That the judgment against Weisberg did not preclude the plaintiffs from compromising.</p>

<p>Express company — Limitation of liability for freight — Failure of shipper to state value — Unexplained loss from ordinary negligence — Knowledge of contents of receipt.</p> <p>The acts of shippers of freight in filling out, in their own book of the blank freight receipts printed by an express company, a receipt, describing the freight, the consignee and his address, and tendering it at their store to an employee of the company for his signature, is an offer upon their part of a special contract of their own creation and where he signs and returns it to them a special contract results whose conditions bind the principals.</p> <p>Where the receipt stipulates that the company shall not be liable for damages resulting from certain specified causes unless proved to have resulted from the fraud or gross negligence of the company or its agents and that in any event the holder of the receipt shall not demand beyond the sum of $50, at which sum the property shipped is thereby valued, unless otherwise expressed in the receipt, and the shippers make no statement of the contents or value to the employee and he in their presence stamps the package “Value asked and not given ”, they can recover no more than $50 where the loss of the freight, although unexplained by the express company, resulted from ordinary negligence, unaccompanied by any affirmative wilful act.</p> <p>It is not material, in the absence of fraud or deception, that the shippers did not know the contents of the receipt — the express company having the right to assume the shippers’ assent to the terms of the receipt from their acceptance of it.</p> <p>The rule in “ freight cases ” distinguished from the rule in “ baggage eases ”.</p>

<p>Appeal from a judgment of the Trial Term of the City Court of the city of New York, entered upon a verdict directed by the court.</p>

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

<p>Appeal by the plaintiff from 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 defendant.</p>

<p>Appeal by the defendant from an order of the City Court of the city of New York, at Special Term, allowing to plaintiff a discovery and inspection and permission to make copies of certain manuscripts in the defendant’s possession.</p>

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

Appeal by the tenant from a final order entered in the Municipal Court of the city of Hew York, eleventh district, borough ■of Manhattan, upon a verdict directed in favor of the landlord upon the trial.

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

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

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

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

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

<p>Appeal by /the landlord from a final order of the justice of the Municipal Court of the city of New York, second district, borough of Manhattan, made in summary proceedings to dispossess.</p>

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

Appeal by plaintiff from an order of the General Term of the City Court of the city of Hew York, striking out the eighth paragraph of his complaint.

<p>Appeal from an order of the City Court of the city of New York, made at Special Term, denying a motion to vacate and set aside an order made by a judge of said court directing service of the summons in this action by publication or without the State.</p>

Appeal by the defendant from an order of the Special Term of the City Court of the' city of .New York, denying the defendant’s motion to vacate and set aside an execution against the person.

Appeal by defendant from a judgment of the City Court of the city of New York, and from an order denying defendant’s motion for new trial.

Appeal by both parties from a judgment for fifty dollars and costs, rendered in favor of the plaintiffs by the Municipal Court of the city of ¡New York, ninth district, borough of Manhattan.

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

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

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

<p>Appeal from a judgment of the Municipal Court of the city of _ Rew York, seventh district, borough of Manhattan, which said judgment was entered upon the verdict of a jury, and from an order denying a motion to set aside the verdict of the jury and for a new trial.</p>

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

<p>Appeal by the defendant from a judgment rendered in the Municipal Court of the city of ETew York, fourth district, borough of Manhattan.</p>

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