Volume 41 — New York Miscellaneous Reports

e., its capital stock, surplus and undivided profits for the purpose of local taxation, and to have such assessment cancelled.

<p>Petition for an order revoking and cancelling a liquor tax certificate.</p>

<p>Marketable title — Proof of foreign will.</p> <p>Where the exemplified record of a foreign will made in 1866, devising domestic real estate, does not show either in the attestation clause, or in the proofs that, as required by our statute of wills, the attesting witnesses became such at the testator’s request, it does not show title in the devisee.</p> <p>Where such devisee contracts to sell, but does not tender a marketable title on the contract day, she cannot invoke, in an action to compel the purchaser to take title, a subsequent statutory provision of this State (Code Civ. Pro., § 2632, as amended in 1901), making the record of a proven foreign will when exemplified by its custodian admissible in evidence, as if the original was produced and proved, when thirty years have elapsed since the will was proved.</p>

<p>. Action by the beneficiary to recover for a death on an accident policy of insurance.</p>

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

Tiie defendant Wright served his answer by mail, and more than twenty days and less than forty days thereafter, served an amended answer. The amended answer was returned on the ground that it was served too late, and the defendant thereupon moved for an order directing that service of the amended answer stand.

<p>Application for a temporary and mandatory injunction.</p>

<p>Application to vacate a levy made by the sheriff of the county of New York.</p>

Action brought under sections 1781 and 1782, Code of Civil Procedure, by the plaintiff, a trustee of the “ United States Regulation Eire Arms Company,” against the defendants, also trustees of the said company, to restrain and prevent said defendants from interfering with, appropriating or paying out certain funds or property of the said corporation. The defendants demur to the complaint. “ First.

<p>Action to enjoin the defendants from cutting off the supply of Croton Avater from premises occupied hy plaintiff.</p>

<p>William 0. Hebbing died April 5, 1862, seized of the premises in question. He devised these premises to his widow, Honora Y. Herring; she died intestate May 17, 1862, leaving as next of kin, three sisters (aliens and residents of Ireland). William C. Herring’s will was admitted to probate October 14, 1862, and letters of administration, with the will annexed, were issued to his brother, Thomas H. Herring. The taxes on this property for the years 1861 and 1862 were allowed by the administrator to remain unpaid until October, 1866, when he permitted the property to be sold for nonpayment thereof, notwithstanding the fact that he had ample personal property of the testator with which .to pay the same. It was bid in by the city of New York, and on Hovember 2, 1868, Thomas H. Herring paid to the city the sum of $233.67 (being the amount of said taxes, water rates, interest, etc.), and took an assignment of the lease of the property in his own name for 1,000 years. Thomas H. Herring died July 1, 1874, and by his will devised a life use of all his real property to his wife, and, upon her decease, specifically devised the- estate in remainder in said lease to his nephew Elisha H. Pratt, since deceased. Agnes J. Pratt, widow of Elisha H. Pratt, is now in possession of the property, claiming title in fee, by adverse possession, by virtue of said tax lease and under chapter 191, Laws of 1864. Plaintiffs demand possession of the property and an accounting.</p>

<p>Actios" for the construction of a will.</p>

<p>Action in equity for the specific performance of a contract for the sale of real estate.</p>

<p>Assumed names in business — Penal Code, § 363b — Recovery permissible on an executed contract — Pleading — Surplusage.</p> <p>A person carrying on business under an assumed name in violation of Penal Code, § 363b, and not having filed a certificate thereunder may recover of a debtor where the contract between them, for goods sold, has been fully executed, and a defense setting up the doing of business under an assumed name and thé failure to file the certificate is demurrable.</p> <p>Where there was added to another complete cause of action, for goods sold, an allegation that the defendant among other things agreed to release the plaintiff from all claims and demands, present or future, arising out of the said transactions, the court, on demurrer to the defense, regarded this clause as executory but also as surplusage, the cause of action being complete without it, and accordingly held the complaint good as one based upon an executed contract.</p>

<p>Demurrer to complaint.</p> <p>The facts sufficiently appear in the opinion.</p>

<p>Demurrers to complaint.</p>

<p>Habeas Oobpus and certiorari proceedings.</p> <p>Facts sufficiently appear in the opinion.</p>

<p>Applications for liquor tax certificates.</p>

<p>Unconstitutionality of L. 1902, chap. 127, relative to the salary of the keeper of the Albany penitentiary.</p> <p>L. 1902, eh. 127, amendatory of L. 1885, eh. 261, “An act in relation to the management of the Albany penitentiary”, described in its title as “relative to the salary of the keeper of said penitentiary ”, is a private or local bill.</p> <p>In, view of the constitutional declaration (art. Ill, § 16) that no such bill “ shall embrace more than one subject, and that shall be expressed in the title”, those provisions of L. 1902, ch. 127, which relate to dispensing with the keeper of the penitentiary and placing it in the custody of the sheriff of the county of Albany are unconstitutional.</p>

<p>Marketable title — Title of infant defendant not cut off in foreclosure — General Rules of Practice — Rule 6o.</p> <p>The General Rules of Practice of the Supreme Court of the State; of New York have the force and effect of statutes.</p> <p>Rule 60, providing that if an infant defendant puts in a general answer in a mortgage foreclosure, otherwise undefended, the order of reference to compute must direct the referee to take proof of the facts and in regard to payments, is mandatory and where there has been a failure to comply with this rule a purchaser on the sale need not take title as it is not marketable, the rights of the infant not having been cut off.</p>

<p>Employer and employee — Construction of L. igo2, ch. 6oo, § 2.</p> <p>The provisions of the employers’ liability act (L. 1902, eh. 600, § 2), declaring that an employee injured by the negligence of an employer’s superintendent or acting superintendent shall have the same right of compensation and remedies against the employer as if the employee had not been an employee of the employer, were intended to prevent the negligence of the superintendent from being imputed to the employee but must not be construed so as to turn the employee into a trespasser upon the employer’s premises when he was not such, and therefore where the plaintiff, in an action brought upon this section of the statute, was in fact an employee the court may properly charge the jury upon the trial of the action that he was, when injured, on the premises of the employer by invitation.</p>

<p>Telephone company — Placing its poles on a country highway without ' the abutting owner’s consent — Injunction.</p> <p>The placing by a private corporation of its telephone poles and wires upon and along a country highway, in which an abutting owner has rights in common with the public, is an additional burden to him which a franchise to the corporation from the State cannot impose constitutionally unless he consents to the placing and is compensated for it.</p> <p>Such a corporation cannot justify such an invasion of private rights upon the ground of public service.</p> <p>An injunction is a proper remedy where private rights are wantonly and unnecessarily invaded and the premises of the party will be damaged thereby.</p>

<p>PEOGEEDiETG'for an order to turn over papers of an office.</p>

<p>Action upon, a bond given by a surety company.</p>

<p>Motion by the defendants for a preference.</p>

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

<p>Motion by the defendants to allow them to make a case and exceptions and to a stay of proceedings.</p>

<p>Motion to vacate an order and commission.</p>

<p>Motion by a person not a party for leave to be brought in as a defendant.</p>

Application to annul and vacate certain proceedings had by the city of Few York through its dock commissioner for the acquisition of such rights in the pier known as Old Fo. 24 as were in owners other than, itself.

<p>Cebtioeaeis to review assessments against the relators for capital invested in business in this State.</p>

<p>."Receivers — Modification of an order by which they were improperly allowed to release directors of their corporation.</p> <p>Where a stockholder, of a dissolved corporation in the hands of receivers, who sued its directors for injuries done by them to it because the receivers refused to sue upon request, was defeated in 1902 in the Appellate Division upon a demurrer to his complaint because the directors had been released as such by the receivers before the latter were requested by the stockholder to sue, the Special Term subsequently modified an order, of June 29, 1901 (which, among other things, contained authority for the release), and it struck out that provision upon the plaintiff’s allegations on (the hearing of a demurrer to his amended complaint, that, at the instance of the directors, the receivers omitted to present to the court, at the time when the said order was made, any facts or circumstances tending to establish the directors’ liability and, further, that they falsely induced the receivers, or their attorneys, to believe that they were men of limited means' and could not be held to respond in damages fully.</p> <p>The court held the complaint as modified and amended good.</p>

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

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

<p>County Court — Jurisdiction.</p> <p>Residence in the county is essential to give a County Court jurisdiction in an action to recover a sum of money only; residence must appear on the face of the pleadings and neither consent nor waiver will give jurisdiction.</p> <p>A complaint, in an action brought in the County Court of Kings county to recover upon the bond of a surety of a marshal of the city of New York in the borough of Brooklyn, is demurrable where it does not upon its face show that the defendant surety is a resident of Kings county.</p> <p>The Municipal Court Act (L. 1902, ch. 580, tit. VIII, art. II) has not changed the rule first above stated.</p>

<p>Street railway corporation—Transfers in the city of New York.</p> <p>The Railroad Law (L. 1890, ch. 565, § 104) applies to the Interurhan Street Railway Company of the city of New York and requires it to give at a single fare transfers over all the lines of its system which are wholly within the city limits.</p> <p>This regulation of fares is an exercise of the police power and does not necessarily tend to diminish the business of the company or impair the salability of its property.</p>

<p>Action to foreclose a mortgage, on real estate.</p> <p>The defendant Pfandler Company defends this action, claiming that certain of the property sought to be foreclosed herein is personal property and not subject to the lien of the plaintiff’s mortgage.</p> <p>On the 12th day of November, 1898, the Pfandler "Vacuum Fermentation Company, the predecessor in interest of the Pfandler Company, entered into a written contract with the Granger Brewing Company, whereby it agreed to erect in the latter company’s brewery its plant for operating its system of manufacturing lager beer, including three glass-enameled steel tanks of four rings each, with the necessary vacuum pumps, pipes and fittings, and appliances belonging to said system, and also five 110 barrel glass enameled steel tanks to be used as chip tanks. The said system of manufacturing beer and said tanks used in said system were covered by letters-patent granted by the United States to the-said Pfaudler Vacuum Fermentation Company. And by the said agreement between the last-mentioned company and the Granger Brewing Company, the brewing company was to receive license for the use of the said system and of the said tanks. , But it was provided that such license should cease-in case payment was not made as provided by the terms of said contract. The brewing company agreed that it would prepare proper openings in its building through which conveniently to put said plant into said brewery, and it, was-further agreed “ that the title to and ownership of all the-property covered by this contract, including such additional tanks as may be furnished under the provisions of this contract, are and shall continue to be in the party of the first part until the same shall be fully paid for to the party of the first part.” This agreement was not filed.</p> <p>On the 1st day of September, 1900, the mortgage in question, which is sought to be foreclosed in this action, was executed and recorded, which mortgage specifically enumerated the property claimed by the Pfaudler Company herein,, and contained a provision that the personal property therein described should be real estate for all the purposes of such mortgage and should be held and taken to be fixtures and appurtenances of the mortgaged premises. After the execution of the last-mentioned mortgage, and in August, 1901, the Granger Brewing Company purchased of the Pfaudler Company an additional lot of said patented machinery, consisting of five two-ring steel chip tanks with the usual fittings, such purchase being on the same conditions as the original purchase in 1898, and having been provided for by the provisions of said contract of November 12, 1898.</p> <p>The property so furnished by the Pfaudler Company was not manufactured at the time the contract was made, - but was subsequently manufactured, and that part thereof which was first furnished to the brewing company was installed in April, 1899, five months after making the contract. The tanks are large and cumbersome articles, but stand ou the floor, being held in position by their own weight. At the time they were introduced in the building in question, a portion of one side of the building, which was of brick and in process of construction, was left open to receive some of them. The tanks may be taken apart and removed by sections, but these separate sections cannot be taken from the building without enlarging somewhat the openings surrounding the doors or windows. The different parts of the machinery are connected with each other and with other parts of the building and appurtenances thereto, by pipes, but they may be disconnected by the usual methods known to steamfitters or other proper' mechanics.</p> <p>On the property first installed as above set forth there is due and unpaid to the Pfaudler Company $4,000, with interest from June 7, 1902, and on the property installed in 1901 there is due the sum of $1,300, with interest from Hay 20, 1902.</p>

Demurrer by the defendant the Village of Nassau to the complaint, and by the plaintiff to one of .the defenses contained in the answer of .the defendant Strong.

<p>Action to determine the ownership of the proceeds of a certificate of fraternal life insurance.</p>

<p>Application for a certificate of reasonable doubt.</p>

<p>Crimes — Who are principals — Attempt to commit a crime — Solicitation of another— Penal Code, §§ 29, 34.</p> <p>Where it appears, upon the trial of indictments for an attempt to commit the crime of unlawfully removing public records and also for an attempt to commit grand larceny in the second degree by attempting to steal indictments, that the removing or taking of them which the defendant counseled never occurred and that the only taking or removing of them was done by the district attorney, not an accomplice and actuated by a different motive, who took them for his own purposes, the defendant is not a principal, within Penal Code, § 29, in removing or stealing the indictments as the act of the district attorney cannot be imputed to the defendant.</p> <p>The mere solicitation of another, a detective, to commit a crime, with intent to commit the crime, is, however, within Penal Code, § 34, “An act done with intent to commit a crime and tending * * * to effect its commission,” and upon proof of such solicitation by the defendant he may properly be convicted of an attempt to commit that crime and a certificate of reasonable doubt as to whether the judgment of his conviction should stand must be refused.</p>

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

<p>Motion for the appointment of a receiver pendente lite.</p>

<p>Motion for the appointment of a receiver pendente lite.</p>

<p>Trust — Termination by beneficiary under L. 1896, ch. 547, § 83 — Remainders liable to be divested.</p> <p>Unless a beneficiary of a trust for the receipt of the rents and profits of real property, entitled to a remainder in the fund subject to his beneficial estate for a life or lives, is entitled as beneficiary to the whole income of the trust he cannot terminate it under the Real Property Law (L. 1896, ch. 547, § 83).</p> <p>The will of a testator gave his residuary estate, real and personal, to his executors in trust until one of his grandchildren became twenty-one and, failing that, until another grandchild became twenty-one. Upon either attaining majority, or if both died before it, he gave the estate to his children equally with representation to the issue of deceased children. He further directed the executors, until majority of the grandchild, to collect the rents and divide them equally between his children and their issue.</p> <p>Held, that,. at most, his children took vested remainders subject to be divested by death during the minority of the surviving grandchild.</p>

<p>Action in equity to compel the defendants to replace certain bonds and coupons or account for their value.</p>

<p>Appeal by defendant from a judgment of conviction of assault in the third degree, rendered by the Gity Court of Utica, on the 6th day of February, 1903, under which defendant was sentenced to pay a fine of five dollars, or stand committed in default of payment thereof five days in the Oneida county jail.</p>

Suit by vendor against purchaser for specific performance of an agreement to purchase a lease of real estate and the buildings and fixtures >on the land.

<p>Action to set aside certain local improvement taxes for paving Goodyear avenue in the city of Buffalo, alleged to he void and a cloud upon the title of the property against which they are assessed.-</p>

<p>Demuebeb by defendant to the plaintiffs’ complaint upon the ground that it fails to state facts sufficient to constitute a cause of action.</p>

<p>Motion to vacate an attachment on the papers on which it was granted.</p>

<p>New York City — Right of promoted police captain to have the pay-roll show his promotion — How title to an office and its consequent salary are to be determined.</p> <p>A person duly promoted as a captain of police in the city of New York may, by a peremptory writ of mandamus, compel its civil service commissioners to certify upon the pay-roll that he has been so promoted and also compel the city police commissioner to certify the captain’s name upon the pay-roll accordingly..</p> <p>The refusal of the civil service commissioners so to do, because of an alleged error or omission in the certificate of the captain’s record, which, it is claimed, would, if it had not occurred, have reduced his rating below that required for the eligible list, cannot be justified where the court cannot see that the error or omission had any effect and where the captain is not charged with any fraud in regard to it.</p> <p>Moreover, the title and consequent salary of an office are determinable only in an action in the nature of a quo warranto and the civil service commissioners have no power or jurisdiction to do acts which, purport to deprive the captain of his office.</p>

<p>Motion to vacate a judgment and the execution issued thereon.</p>

<p>Application to punish certain persons for the violation of a preliminary injunction heretofore granted in this action.</p>

<p>Demttbbeb to counterclaim.</p>

Action to reform a fire insurance policy, and to recover on the policy. On the 6th day of June, 1898, the defendant insurance company issued the policy in question to Catharine Dougherty, who had previously owned the insured property, but who died in April, 1897, leaving a husband and several children who were the owners of the property at the time the policy was issued.

<p>Motion for alternative writ of prohibition.</p>

<p>Evidence — Presumption of death without issue.</p> <p>The Supreme Court compelled a purchaser at a sale in partition in 1903 to take title where it appeared that a single man, aged thirty years in 1860 and of dissipated habits, to whom or to whose issue if living the property in question would belong, had not been heard from since 1860, although his family had made efforts in Ms last known place of residence to find or trace him.</p> <p>Such an unexplained absence of forty-three years rebuts the presumption of a continuance of life and creates a presumption that the man is dead and that he left no issue him surviving.</p>

Motion by the Attorney-General to vacate an order appointing a receiver of the defendant. At a Special Term held July 4, 1903, papers were presented in a judgment creditor’s action for the appointment of a temporary receiver of'the defendant railway company. The judgment creditor and the company were represented by counsel and a responsible attorney appeared for the Attorney-General.

<p>Beheabing of motion to appoint receiver.</p>

<p>Demurrer to information.</p>

<p>Pleading — Demurrer to objections taken by answer to the sufficiency of the complaint — Form and scope of objections.</p> <p>The plaintiff may and should demur to objections to the sufficiency of an amended complaint taken under Code Civ. Pro. § 498 by answer.</p> <p>Such objections are to be deemed defenses.</p> <p>To be sufficient they must specify not only the supporting facts but also the particular grounds of each objection, as required by Code Civ. Pro. § 490.</p> <p>An objection to the form or sufficiency of the summons cannot be taken by answer.</p>

Action to enforce against the heirs of James H. Nellis a foreclosure deficiency judgment. Motion for an order nunc pro tunc, permitting the plaintiff to continue the action.

Action to recover the penalty on a bond given to procure a liquor tax certificate as a pharmacist. Motion for a new trial.

<p>- Motion to vacate an injunctionj</p>

<p>Motion to amend a decision and judgment.</p>

This action is brought by the administrator of the estate of George R Crouse, deceased, to recover the proceeds of the sale of 200 shares of ISTew York Air Brake stock, amounting to $19,317.05, and was tried before the court without a jury. The defendant, Florence Grouse Clark, claims that the stock was given to her by her father, said deceased, during his lifetime.

<p>Demurrer to an amended complaint in slander.</p>

Action in ejectment. This was an action in ejectment brought by plaintiff against defendant. Plaintiff’s title is founded upon a patent from the State, which acquired title under the Comptroller’s tax sale of 1848 for taxes of 1844, the deed to the State being delivered in 1855. The defendant’s title is based upon a county treasurer’s tax sale of 1852 for taxes of 1849, subsequent to sale to the State, and county treasurer’s' deed given in 1854.

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

<p>Motion for the appointment of a temporary receiver.</p>

<p>Demurrer to a return to a writ of certiorari.</p>

<p>Building and loan association — Plea of ultra vires interposed against it — Loaning powers.</p> <p>Where a member of a building and loan association borrows money of it on his note with his stock as collateral he cannot escape payment of the note by alleging that the association had no power to loan money except on real estate.</p> <p>Semble, that an association incorporated under L. 1892, ch. 689, art. V may loan on property other than real estate and that the Banking Law (L. 1892, ch. 689, § 25, subd. 5, added by L. 1895, ch. 929, § 1) forbidding a banking corporation to loan on its own stock does not apply to such an association.</p>

<p>Liquor Tax Law — Resubmission of local option.</p> <p>Where a submission of local option is alleged to have been improper because the petition was not signed and acknowledged by the requisite number of electors, section 16 of the Liquor Tax Law affords no authority for ordering a special town meeting for a resubmission and this because the filing of the same petition is made by the statute the basis of the order for a resubmission and if the petition is defective it cannot be made sufficient by the court’s order.</p>

<p>Liquor Tax Law — Petition for revocation — Unverified answer permissible— No revocation without proof of violation.</p> <p>A petition by the State Commissioner of Excise for revocation of a liquor tax certificate is sufficient if it states the material facts on his’ information and belief and then alleges the source of the former and the grounds of the latter to be the public records of his office and those of his special deputy and the annexed affidavits of two other persons as to the probative facts.</p> <p>The amendment (L. 1903, ch. 486, § 12) to subdivision 2 of section 28 of the Liquor Tax Law, abolishing the prior requirement that the holder of a liquor tax certificate must upon the return of an order to show cause why his certificate should not 'be revoked suffer revocation, unless he files a verified answer denying each and every violation alleged and raises an issue as to some material fact in the petition, and permitting, instead, the filing of an unverified answer and providing for a hearing of the proofs, has- made that particular part of said subdivision 2 constitutional.</p> <p>But even if the liquor tax certificate holder files no answer — and he may lawfully remain silent — his certificate cannot.be revoked unless sufficient proof of the violations charged, against Mm is made to justify revocation.</p>

<p>Injunction — Unfair methods of business competition restrained.</p> <p>Where the plaintiff and the defendant were rivals in publishing encyclopedias and there was proof that the defendant had made to the plaintiff’s subscribers intentional false statements as to the relative merits of the two works to induce them to break their contracts to take the plaintiff’s work and accept the defendant’s instead, and had agreed to indemnify them against plaintiff’s damages for the breach and against the conduct and expense of defending any actions brought against them by the plaintiff for the breach, the court condemned these methods as unfair, considered the plaintiff’s remedy at law inadequate, and by a preliminary injunction restrained the defendant from further acts of such a nature and from taking over the defense of claims which were the subject of existing indemnity agreements.</p>

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

<p>Liquor Tax Law — Rebate.</p> <p>The right to a rebate, upon a voluntary surrender of a liquor tax certificate, is not defeated by one conviction of an employee of the holder of the certificate nor by the fact that on Sunday he had a door and entrance to his premises from the street open and unlocked, there having been no complaint or prosecution or action in regard to this violation of the statute.</p>

<p>Liquor Tax Law — Revocation of ."certificate — False statements in the application — Bedrooms — Entrances.</p> <p>If statements in an application for a liquor tax certificate are false when made and the place is not then entitled to a certificate, revocation of it cannot be defeated by subsequently changing the physical conditions of the place so as to make it comply with the statute.</p> <p>Where the law requires that in a hotel there shall be six bedrooms with an independent access by door from the ball, exclusive of those occupied by the family and servants, and, in order to leave six rooms for guests, the family, after the application but before liquor is sold, vacate one of the bedrooms and lodge in a hall into which five of - the other bedrooms open, the remaining bedroom being upon another floor — this is not in compliance with the law, as such use of the hallway makes it practically a bedroom.</p> <p>The phrase, in subdivision 8 of section 17 of the Liquor Tax Law, the “ nearest entrance to the premises ” in which traffic in liquor is to be carried on, includes all entrances.</p> <p>A rear entrance by which the barroom can be reached, after walking ten feet through a hall is an “entrance” and if that entrance is within two hundred feet of the nearest entrance to a building occupied exclusively as a dwelling the hotel is not entitled to a certificate.</p> <p>The “nearest entrance to the premises”, referred to in subdivision 8 of section 17 of the Liquor Tax Law, is not the entrance to the bar or barroom, but the nearest entrance to the building through which access may be had to the bar or barroom.</p>

<p>Action to recover one-half the expense of repairing bridges by the plaintiff over a boundary stream, the defendant’s commissioners of highways having refused to join in such repairs after being given the statutory notice.</p> <p>The town of Fishkill in Dutchess county was. divided in 1849 by an act of the hoard of supervisors, the new town of East Fishkill (the plaintiff) being created thereby. The line of division was East along Fishkill Creek to its junction with Sprout Creek, “thence up and along the West bank of said Sprout Creek to ”, etc. The territory to the East of this line was constituted as the new town (chap. 411, Laws of 1852), By still another division of the town of Fishkill (chap. 400, Laws of 1875) this territory along the West side of Sprout Creek became of the town of Wappinger (the defendant).</p>

<p>Heabiwg upon return to alternative writ of prohibition.</p>

<p>Memoir by the plaintiff’s attorney for leave to continue an action of partition to final judgment to enforce his lien for services and for further relief.'</p>

<p>Examination before trial — Requisites — Not granted for an • ulterior purpose — Distinction, as to the production of books, between an examination before trial and a discovery of papers.</p> <p>An order for an examination before the trial of an action cannot be procured unless the moving party shows by affidavit that the parties sought to be examined can testify to facts material to the issue.</p> <p>Where a purchaser of the stock, of a corporation, claiming to have been induced to buy its stock by false representations of its officers as to its financial condition and seeking rescission, obtained an order to examine certain of its officers before trial the court vacated the order upon proof that they did not become such officers until after the sale was made.</p> <p>Such an order should not contain a provision requiring the officers to produce for inspection the books of the corporation where such production is not desired to refresh the recollection of the witnesses but only to make it possible for the moving party to make extracts from the books.</p> <p>An examination before trial (Code Civ. Pro., § 873), is a proceeding entirely distinct from and cannot be joined with a proceeding for the discovery of papers (Code Civ. Pro., §§ 803-809), and so much of Code Civ. Pro., § 872, subd. 7, as relates to an examination and inspection of the books of a corporation is intended to compel production of them so that they may be used only and solely as an incident to and in connection with the examination of a witness who is able to testify from them.</p>

Motion to vacate an order made herein August 6, 1903, for the examination of defendants Burke and others before trial pursuant to section 873 of the Code of Civil Procedure.

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

<p>Action upon an employer’s liability policy. |</p>

Action by plaintiff to determine the title to the large area of land that lies under the bays that extend eastward from Biverhead between the two arms of Long Island.

Actioist in ejectment brought by- plaintiff against defendant as the Forest, Fish and Game Commission of the State of New York, to recover posséssion of certain lands in Warren county. Defendant demurred to complaint on following grounds: First. That the court has no jurisdiction of the person of the defendant. Second. ‘That the court has no jurisdiction of the subject of this action. Third.

<p>Supplementary proceedings — Limitation as to time for examining a third person — Receiver.</p> <p>The lapse of ten years from the date of the return of an execution issued upon a judgment bars the judgment creditor’s right to examine a third person as to personal property of the judgment debtor alleged to be in his hands and, therefore, an order appointing a receiver, based upon property discovered in the hands of the third person after ten years, must be vacated.</p>

Trial of issues of law raised by demurrer to the plaintiff’s complaint.

<p>Motion by the plaintiff to continue a temporary injunction during the pendency of the action.</p>

Review of the determination of the county clerk of Fulton county in respect to the use of the name “ Independent Republican Party ” as a political name in an independent certificate of nomination.

<p>Costs against an executor—Unreasonable resistance of the claim — Refusal, to refer — Waiver of costs.</p> <p>Payment of a claim against a decedent’s estate cannot be deemed to have been " unreasonably resisted or neglected ” by the executor where, upon a jury trial of an action subsequently brought to enforce the claim, it is reduced forty per cent.</p> <p>Where there is no proof in such an action that the defendant did not file the consent referred to in Code Civ. Pro. § 1836 at least ten days before the expiration of six months from the rejection of the claim nor any that the action was commenced within ten days before such expiration the plaintiff is not entitled to costs.</p> <p>Since the amendment made to Code Civ. Pro. § 1836 by L. 1897, ch. 469, a refusal to refer does not subject an executor to costs either personally or out of the estate he represents.</p> <p>Costs are waived by the plaintiff where he sues before expiration of five- months and twenty days from the date of the rejection of the claim.</p>

Proceedings by the Schenectady Railway Company to condemn certain parcels of real property in the city of Schenectady for the use of its road, and for the appointment of commissioners to ascertain the compensation to be made to the owners.

<p>Payment — Accord and satisfaction.</p> <p>A debt may be extinguished by payment in full, by acceptance of something agreed upon in satisfaction, by release under seal, by voluntary destruction of the written evidence of the debt, and by delivery of such written evidence to the debtor with intent to forgive him the debt — this latter method operating as an executed gift.</p> <p>Accord and satisfaction involve the receipt of something in ' satisfaction of the debt and where the creditor has received nothing beyond what was- admitted to be due from the debtor there can be no accord and satisfaction available to the latter as a defense.</p>

<p>Under the amended charter of the city of Rochester (L. 1880, ch. 14, tit. V) the city treasurer sellsi every December for taxes of that year remaining unpaid. If the premises are struck off to the city two years are allowed for redemption, after expiration of which the city is authorized to foreclose the lien of the said tax in the same manner as mortgages are foreclosed. In an action brought under this statute the defendant Parker, who had hid in the premises at a city treasureris tax sale in a year prior to the tax being foreclosed herein, objected to that portion of the relief demanded in the complaint which asked that the proceeds of sale be first applied upon taxes due the city and that only the surplus, if any after paying the costs, be applied upon his tax lien. His answer set up the lien of the tax he had bid in and asserted its superiority over the tax the city was foreclosing. A motion was made for judgment on the pleadings.</p>

<p>Savings bank deposit — By-law as to payment after a depositor’s death — Revocation of a power of attorney by death of the principal.</p> <p>A savings bank, having a by-law providing that on a depositor’s decease her deposit shall be paid to her legal representative and also having on file a power of attorney from her to a third person to draw the deposit, must respond in damages to her administrator if after her death it pays the deposit to the third person, and this because the bank was bound to inquire whether she was living and to know that her death had revoked the power.</p> <p>The bank is not protected in paying the third person by another by-law providing that the bank should be discharged if it paid the deposit to a person producing the deposit book. Such a by-law is for the protection of living depositors only.</p>

<p>Action upon a promissory note.</p>

Wbits of habeas corpus and certiorari, taken out by the relator, who was arrested for a violation of section 6 of the Metropolitan Elections District Law. (Laws 1898, chap. 676.)

<p>Composition agreement — Secret preference against public policy — Preference distinct from composition — Status of innocent party to the preference.</p> <p>A written guaranty, of a debt due a bank by an insolvent firm as endorser of a certain note held by the bank, procured by the firm of a third person to induce and inducing the bank to cancel the endorsement on the note and sign for the balance of its claim a compromise agreement of the firm's creditors — the transaction not being made known to the other firm creditors — is a secret preference to the bank and void as against public policy, even though the composition finally failed because of the refusal of some other creditors to sign the agreement therefor.</p> <p>A valid composition is not essential to render invalid an agreement for a preference, the law regarding the composition and the preference as independent transactions.</p> <p>Where the guarantor in her answer, to the bank’s action to enforce the guaranty and also sell stock deposited by her with it as collateral security for the performance of the guaranty, demanded the return of both guaranty and stock the court granted her that relief holding that there was nothing to show that she had notice that they were to form the consideration of an illegal transaction, and that in any event the bank had no title to either.</p>

<p>Motion for a new trial on the minutes; action for damages for personal injuries caused by the collision of two meeting vehicles in a wide highway, both on the same side; verdict for the plaintiff.</p>

<p>Liquor Tax Law — New York city bartender, charged with a violation, granted a trial by indictment where one employee of the same certificate holder has already been convicted.</p> <p>In view of the facts that subdivision 3 of section 34 of the Liquor Tax Law forfeits a certificate for two convictions of employees or servants of a holder thereof and that other punishment and penalties and losses may attend such a forfeiture in the city and county of New York, it is “ reasonable ” within the meaning of the city charter that charges against employees or bartenders of a certificate holder of that city and county, one of whose employees has already been convicted of a violation of the statute, be proceeded with by indictment and in a court which has a jury.</p>

On the 27th day of June, 1903, an order was made at the Albany Special Term reducing the assessment of the Rochester Railway Company from the sum of two millions, thirty-nine thousand, eight hundred and forty dollars ($2,039,840) to the sum of one million, six hundred and thirty-one thousand, eight hundred and seventy-two dollars ($1,631,872) and on the same day an order was made reducing the assessment of the Rochester Gas and Electric Company from the sum of two millions,…

On the 31st day of December, 1901, a judgment was rendered in the above entitled action in favor of the plaintiff, Edward B. Fisher, and against the defendant, William M. Young, for the sum of seven hundred and eleven and 73/100 dollars ($711.73), which judgment was docketed in Sullivan county on the 31st day of December, 1901.

<p>Motion to compel defendant to accept amended complaint.</p>

<p>Tax — Liability to assessment of territory annexed to a city during a street improvement — Status of bona fide purchaser of lots.</p> <p>The Legislature may extend the limits of a municipality by annexing to it territory although the latter will not benefit, in return, for the municipal burdens imposed on it by the annexation and will thereby be rendered liable for pre-existing municipal debts.</p> <p>Where, after the owners of certain lots on the west side of a street (the center line of which was the east line of Eochester) had petitioned for paving the street and, separately, had petitioned therefor as owners of all lots on the east side of the street and promised to pay therefor ratably, the city, during the improvement, annexed by a statute, passed about that time, the lots on the east side of the street, the court considered that the city thereafter had power to assess the latter lots ratably for the cost of the completed improvement and that to that end the common council of the city might under the city charter, in order to correct an erroneous assessment theretofore made assessing all the cost on the lots on the west side of the street, recall the assessment and make a new one ratably to assess also the lots on the east side of the street.</p> <p>No exemption from assessment was granted to persons who bought their lots after the assessment was made and without notice of its lien or knowledge that it had not been paid, and this because the improvement was patent to all who saw- the lots and it was possible to ascertain by inquiry whether the assessment had been paid.</p>

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

<p>Assignment for benefit of creditors — Removal and accounting of assignee— Laches of moving creditor — Remedy in equity.</p> <p>The court denied a motion, made in 1903 by an alleged general creditor of a firm which assigned in 1886, to remove the assignee and require him to account — no specific charge of misconduct being made — where he alleged in reply that he sold all the assets in 1886, that the expenses and preferred debts exceeded them, that in 1887 the general creditors who had filed claims waived a formal accounting, that the moving creditor had not until the motion notified him of his claim, and that he, the assignee, kept but had lost a book of the accounts of the trust and where it further appeared that one of the assignors was dead.</p> <p>If the moving creditor desires an accounting he must sue in equity.</p>

Motion to strike out from each of four separate defenses and a counterclaim the initial words that the defendant “ reiterates all the admissions and denials contained in paragraphs I to IX of this answer.”

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

<p>Pleading — When the plaintiff will be required to reply to an answer.</p> <p>Where the defendants answered a complaint to recover possession of real property by alleging that the plaintiff could not sue because a minor and that his right as owner of the equity of redemption had before action brought been cut off by a foreclosure in which a person of the same name as the plaintiff was a defendant and at the sale in which the defendants purchased the premises in suit, the court, in its discretion, required the plaintiff to reply to the answer, to prevent surprise and in the interests of justice.</p>

<p>Action to dissolve a joint stock association and for an accounting and a receiver.</p>

Altebnative writ of mandamus to compel the county of Steuhen to show cause why a peremptory writ should not issue to compel the county to pay the relator fees, amounting to about $5,000, for collecting the State and the school taxes during the six years of his services as county treasurer, which ended December 31, 1900.

<p>Proceedings upon the judicial settlement of the accounts of executors.</p>

<p>Receiver — Intermediate orders, for him to pay money, not granted at the Albany Special Term — Gross sum allowed instead.</p> <p>The general rule established at the Albany Special Term is that it will not make any intermediate orders authorizing the expenditure ■ of money by a receiver for any specific purpose whatever, but, so as not to embarrass him in the payment of current expenses, it will authorize him to withdraw from his general account a gross sum, deposit it in a special account and draw from it without further order of the court — but he must account for it on his final accounting.</p> <p>When he has expended the sum, he may, if it is necessary, make a further application but should then show how he has expended the sum already allowed him.</p>

<p>Action or administrator’s bond, from which the amount of the penalty was omitted. The defendant claimed that the action, as one for equitable relief, was barred by the lapse of ten years from the date of the execution of the bond.</p>

<p>Examination before trial — When an answer does not raise, as between codefendants, an issue not raised by the complaint.</p> <p>An answer, interposed by a member of a syndicate formed to purchase a controlling interest in certain stock, to the complaint of another member demanding an account from the two managers of it of profits alleged to have been wrongfully realized by them from fraudulent sales of the stock, which admits the transaction alleged in the complaint but goes further and charges other defendants, alleged to be his fiduciaries, with wrongfully profiting from the disposition of the stock, points out the way in which and the defendants through whom it was done and asks that all participating defendants account, does not introduce a new cause of action — not stated in the complaint and consequently not provable upon the trial — in favor of the answering defendant against the participating defendants and therefore he may examine them before trial in order to show the nature and extent of the transaction and who participated in it.</p>

<p>Action for an injunction. The nature of the action and the facts, so far as material, are stated in the opinion.</p>

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

Application to compel certain witnesses to appear and testify before the applicant and deposit with him certain books and documents, and also an application to vacate the order and subpoenas issued out of the Supreme Court to compel the attendance of such witnesses and the production of such books and documents.

<p>Specific performance — Enforcibility of a definite agreement to devise property in a particular way — Adequacy of consideration — Parties.</p> <p>A contract of Elise Schmid then owner of certain realty and since deceased testate, made with the mother of Pauline and Josephine Schmid by the temas of which Elise agrees to make a devise, and not change it before her death, of her realty to the said mother in trust to apply the income to the support of the said children xontil Paodine attains the age of twenty-five years, division of the realty thea-eupon to be made between the children equally, the said mother to pay while Elise lives all taxes, etc., accruing on the realty, may be enforced by Pauline, who became twenty-five before the death of Elise, against persons subsequently claiming title and possession under the will and deed of Elise devising and conveying the same property to them, but not for a valuable consideration, where the said mother has perfoamed upon her part and Pauline as sole grandchild of Elise is her only natural heir, Josephine the other heir having died intestate and unmarried before Elise and before Pauline became twenty-five.</p> <p>The said mother is a necessary party to the action because Josephine had an irrevocable interest in the realty when she died and upon her death her mother inherited one-half of it and Pauline the other.</p> <p>I</p> <p>The personal representative of Elise should not be a party, no damages being asked from her estate and no relief respecting her personalty.</p>

Application by an assignee to sustain his exceptions to the report of the referee taking and stating his account, to modify said report in accordance with said exceptions and to confirm the same as so modified.

<p>Action to restrain the defendants from establishing a paypnpil department in De Veaux College.</p>

<p>Action by a tenant to restrain temporarily a summary proceeding from being continued — Injunction refused as to a matter where his rem-i edy at law was perfect — Granted where his removal from the premises would endanger his life.</p> <p>A tenant cannot maintain an action to enjoin temporarily his landlord and a justice of the peace from continuing a summary proceeding to dispossess him upon the ground that his term has expired, where he denies such expiration and insists that the lease was renewed for a similar term by his holding over the first term, and this because he is entitled on the return of the precept to file an answer litigating the question of the extension of his term and if dissatisfied by the decision of the justice may appeal from it.</p> <p>Where it appeared by the complaint and affidavits vthat the plaintiff was in ill health and that his life would be endangered by his removal from the premises the Supreme Court continued an injunction restraining, pending the action, further prosecution of the proceeding upon the ground that as such illness and danger to life would probably not be a defense to the proceeding it was an equity which an injunction could and should protect.</p>