Volume 42 — New York Miscellaneous Reports

<p>Motion to vacate and set aside the report of the referee herein, and the judgment entered upon the said report.</p>

<p>Action by a receiver . appointed in supplementary proceedings.</p>

<p>Pleading — Stating separately and numbering causes of action.</p> <p>Defendants cannot require the plaintiff to state separately and number causes of action of the complaint, where there is doubt whether it sets up a single cause of action or several.</p> <p>The plaintiff should be permitted to determine the question and not be required to break up into different causes of action facts which she claims constitute only one.</p>

<p>Partition by infant — Jurisdiction — The surrogate’s authority for the infant to begin such an action may be supplied after it has been begun.</p> <p>Jurisdiction to entertain an infant’s action for partition is not derived from the Code of Civil Procedure, and its provision for written authority from the surrogate to the infant to bring the action (Code Oiv. Pro., § 1534), is only a regulation of the exercise of the jurisdiction of the Supreme Court.</p> <p>Where the action has been begun without such authority it may be supplied subsequently.</p>

Motion by Oscar Frormnel and another, judgment creditors, to vacate an attachment, made upon the same papers, upon which it was granted.

<p>Motion by Louis Limbres, an alleged subsequent lienor^ to vacate an attachment.</p>

<p>Motion for a nonsuit reserved until after the rendition of a verdict hy the jury, pursuant to section 1187 of the Code of Civil Procedure.</p>

Action at law to recover of the defendant three dollars and fifty cents per week for sixty-nine weeks, by virtue of an agreement made between the plaintiff and defendant’s testator. The plaintiff and defendant’s testator were husband and wife and, according to the stipulation of the attorneys for the respective parties, they separated March 1, 1897, and continued to live apart from that time until the husband’s death, which occurred March 28, 1901.

Action at law brought for the alleged conversion of ten ■checks, amounting to $1,583.80, tried before the court with-cut a jury.

<p>County — Must repay, to the true owner, money received by a county officer without authority — Creditor’s claim against a decedent’s estate a first lien — “ Ex.” (executor), on an obligation, a word of description — A judgment and a surrogate’s decision when not subject to collateral attack — Citation, on revocation of an executor’s letters, unnecessary where he is a fugitive from justice — A justice of the peace cannot bail one accused of arson.</p> <p>An administrator with the -will annexed of a woman duly appointed on the petition of a person adjudged by the Supreme Court to be a creditor of her estate may recover of her county a deposit, representing assets of her estate of which her husband was made by her will executor and also sole beneficiary for life . with right to use the principal, made by him eight years after her death with the county treasurer, in lieu of bail, to release and releasing him from the custody of the -county sheriff who was holding him during an examination of him by a justice of the peace of the county upon the charge of arson, where the said justice, who fixed the bail, had no authority to do so.</p> <p>The right to recover of the county is not defeated by the above recited provision of the will in favor of the husband and this because the debts of the testatrix are a charge on her estate prior to any rights in it given him by her will.</p> <p>Obligations signed by him with the word “ Ex.” (executor) added, are his personal obligations and are not obligations of her estate</p> <p>Although the roll, in the action in which the creditor recovered .judgment against her estate upon these obligations, lacks a complaint and contains, in view of the signatures of the obligations, evidence showing the clerk that he could not properly enter judgment therein against the estate, the judgment cannot be attacked eollaterally.</p> <p>It is the province of a surrogate to determine whether a person is a creditor of an estate and his decision thereon, although improvidently made, probably cannot be attacked collaterally.</p> <p>Where the creditor’s petition to revoke the husband’s letters as •executor — preliminary to the appointment of an administrator with the will annexed — states that he has absconded and is a fugitive from justice, the surrogate may, under Code Civ. Pro., § 2691, •subd. 2, hear the matter and revoke the husband’s letters without issuing a citation.</p> <p>A justice of the peace has no authority to admit to bail a person accused of arson, a crime punishable by imprisonment in a State</p> <p>. prison for a term exceeding five years, and therefore cannot admit him to bail while his examination upon that charge is pending before the justice.</p>

<p>Action by a husband to annul a marriage — False representations of his that he had attained the age of legal consent at the time of the marriage not a defense.</p> <p>It is not a defense to an action to annul a marriage, brought by the plaintiff on the ground that he had not attained the necessary legal age when the marriage was consummated, for the defendant to plead that he then fraudulently represented to her that he was of legal age, that she believed him and was thereby deceived into marrying him.</p>

<p>Action to impress a trust on real property.</p>

<p>Deposition — Of a witness, not a party — Affidavit.</p> <p>An inspection of Code Civ. Pro., § 872, subd. 5, and § 882 shows that the testimony of a witness, not a party to an action, can be taken by deposition only for the purpose of preserving the evidence for use on the trial in case the witness is then absent or sick; •and such a deposition cannot be taken where its real purpose is to get the testimony of the witness in order to enable the moving party to prepare for trial.</p> <p>Requisites, of an affidavit for a deposition, considered.</p>

<p>Abutter’s action for past damages and for an injunction restraining the maintenance and operation of the defendant’s railway opposite the plaintiff’s premises.</p>

<p>Primary Election Law—Powers of board of elections of New York city as custodian of primary records — Remedy where void and protested ballots, alleged to be lawful, have not been counted by boards of primary inspectors.</p> <p>The board of elections of the city of New York, in that city the custodian of primary records, has merely ministerial power and can only canvass the statements of the result filed with it by the boards of primary inspectors.</p> <p>Therefore, it cannot be compelled by the Supreme Court to recount ballots returned by such boards as void and protested and determine whether or not those ballots, alleged to be lawful, were counted and, if not counted, add them to the returns and canvass them.</p> <p>Semble, that where the ballots, the statements and the boards of primary inspectors are still in existence each board may, on proper papers and affidavits showing that lawful ballots have not been counted by it, be ordered to reconvene and obey the law.</p> <p>Void ballots must be rejected; protected ballots are to be so marked but must be counted.</p>

<p>Motion to strike out parts of an answer for libel.</p>

<p>Action by the plaintiff to compel the defendants to contribute each one-fifth of $2,700 to reimburse him for moneys of his own which he paid counsel in an unsuccessful attempt to prove the will of Lewis R. Blair, deceased, in which the plaintiff was named as executor and "to have it declared that he has a lien upon certain bonds, or their proceeds, deposited by the parties with the Mercantile Safe Deposit Company in pursuance of an agreement between the parties made April 20, 1901.</p>

<p>Tax — Foreign corporation, carrying on a transitory business in the State of New York, not taxable on the capital invested here — Intent.</p> <p>A foreign corporation which has an office in the city of New York iwhere it has an agent who takes orders, to be approved by the home office, for goods to be manufactured and paid for at the home office but to be delivered from the New York city office, which has in the latter office besides the agent only an office boy, which pays only a part of the rent of that office, which pays the said agent no salary beyond commissions on sales he makes and which has no bank account in the State of New York, is to be considered as carrying on in this State only a transitory business and therefore is not taxable under L. 1896, eh. 908, § 7.</p> <p>The fact that it obtained four years ago a certificate to do business in this State is some evidence of an intent to carry on a permanent or continuous business here but is not conclusive. Cebtiobabi to review proceedings of tax commissioners.</p>

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

Demubbeb to amended complaint, upon the grounds: First. “ That such amended complaint does not state facts sufficient to constitute a cause of action.” Second. “ That causes of action have been improperly United in said amended complaint.”

<p>Action to foreclose a second mortgage, etc.</p>

<p>Action for specific performance.</p>

Hotioh for a peremptory writ of mandamus, directing the board of town auditors of the town of Horicon to reconvene and receive and audit the account or claim- of the Canton Bridge Co.

<p>. Suit in equity by an abutting land owner to restrain the defendants from maintaining and operating an elevated railroad in the public street in front of his lot.</p> <p>The defendant pleads as a defence a deed of conveyance of the right to operate its railroad from the plaintiff’s mother as executrix under the will of his father, and as guardian of him and his brother, who owned the lot as tenants in common at the time (the brother having since conveyed to the plaintiff); and that the plaintiff signed said conveyance of Ms mother as- a witness, and is by that act and his accompanying conduct, and his failure to repudiate the conveyance, estopped from settmg Ms title up against it.</p> <p>The will of the plaintiff’s father, Daniel Driscoll, devised all of Ms real estate to the plaintiff and his brother Michael, as equal tenants in common, subject to their mother’s right of dower, they being the only children; and also bequeathed to them equally his personal estate. This is followed by a provision that two designated lots of land (one of which is .the lot on which this suit is based) shall not be sold until the younger of the said sons shall be twenty-seven years old, or both of them shall have died. This is followed by a provision empowering the executrix (the will appoints the mother executrix) to collect the income of the entire estate-, pay thereout the taxes, interest on mortgages, expenses for repairs, and -apply so much of the balance as shall be necessary for the support of herself and the said two sons, and their education, during their minorities, and on the coming of age of each to pay to him his net share thereof. This is followed by a power to the executrix to sell, mortgage or lease any and all of the real estate, except the two lots above mentioned. The will was probated and recorded in the Kings County Surrogate’s Court.</p> <p>The mother by a deed in wMch she is described “ as executrix of the will of Daniel Driscoll, and guardian of Daniel Driscoll and Michael Driscoll,” and which is subscribed in the same words, conveyed to the defendant, the elevated railroad company, for a valuable consideration the right to maintain and operate its elevated railroad in the public street, in front of the said lot on which this suit is based, forever.</p> <p>Such deed was prepared by the said defendant and presented to her by its agent for execution. It was signed in the presence of the said agent and the plaintiff, and they signed it as witnesses. The plaintiff was at the time twenty-six years of age. . The mother was illiterate, and made her mark, while the plaintiff signed in a handwriting which shows him to have been educated. The brother Michael has since conveyed Ms undivided one-half interest to the plaintiff.</p>

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

<p>Action to follow trust funds — Complaint.</p> <p>A complaint alleging that the guardian of the plaintiff and his assignors paid the defendant by check moneys of the guardianship upon a personal debt of the guardian to the defendant or that of a corporation to him, that the checks were signed by the guardian as such, that the defendant knew they represented money of the wards, that the guardian died without accounting to them and that the defendant after demand made has not so accounted, is not made demurrable by its failure to allege that the trust fund was impaired at the guardian’s death or that his estate or his personal representatives have not accounted since his death.</p> <p>The plaintiff having alleged an impairment of the fund at one time it is for the defendant to allege and prove, as new matter, any subsequent restitution or payment.</p>

<p>Mechanic’s lien — Lien against moneys with the city of New York how verified under the Consolidation Act—Effect on a foreclosure of a discharge of the lien by an undertaking — Parties — Prior assignment of moneys due by the city to the contractor.</p> <p>A notice of lien filed under the Consolidation Act (L. 1882, eh. 410, § 1825) with the city of New York against any moneys due from it to a city contractor by a materialman may he verified by his agent and is sufficient where the latter deposes that the statements contained in the notice “are true to his own knowledge or information and belief” without stating that he has knowledge of the facts or giving the sources of his information.</p> <p>Although by the giving of an undertaking pending an action to foreclose the lien it has been discharged, the lienor may continue the foreclosure and have a judgment, in form, establishing his lien — to the end that he may thereafter recover on the undertaking.</p> <p>The sureties upon it are not necessary parties to the action.</p> <p>The lien is not defeated by the fact that the contractor had previously given a third person an assignment of all the contractor’s right to moneys due or to grow due him from the city, where it appears that this assignment was given only as collateral security and that moneys remain due from the city to the contractor beyond the sum due the third person from him.</p>

<p>Foreclosure — Temporary receiver of rents.</p> <p>The weight of authority favors the doctrine that when a bond and a mortgage contain a clause pledging and assigning the rents and profits of the mortgaged premises in the event of a default, the mortgagee is entitled to a receiver of the rents, pendente lite, without showing inadequacy of the security.</p> <p>In this case, however, the court appointed such a receiver upon the ground that inadequacy of the security appeared.</p>

<p>Testamentary trust — Trustee and beneficiary the same person — Trustee in bankruptcy.</p> <p>Where a will constitutes the same person trustee and beneficiary of a trust attempted to be created by the will, the trust fails and the person takes in the corpus a legal estate of the same quality and duration, and subject to the same conditions, as his beneficial interest.</p> <p>Where the will of a testator gave all his property to his son Charles in trust, first, to pay his sister Etta the income of a certain sum for life and, second, to pay himself the income of the balance until he had satisfied all judgments existing against him at the time of the testator’s death and thereupon to pay himself the principal, his trustee in bankruptcy is after his discharge entitled to said principal or remainder absolutely and he must account to the trustee for it, after deducting the debts of the testator and the expenses of administration.</p>

<p>Action in ejectment.</p>

Action to recover for loss of baggage. Verdict for the plaintiff. Motion to direct a verdict for the defendant reserved until after verdict. Motion to set aside the verdict, or to do so unless it be consented to reduce it to $50.

<p>Motion for security for costs.</p>

<p>Motion upon the minutes of the court to set aside a verdict.</p>

<p>Executory contract of sale — Illegal termination by vendee during performance— Acceptance where the warranty is implied and the defects patent1— Acceptance by subvendee.</p> <p>Under an executory contract for the manufacture and delivery in six monthly installments of a newly invented tool not required to conform entirely to a tool of the same nature furnished the manufacturers as a guide but required to equal it in material, workmanship and/finish, the fact that some of the tools delivered and paid for were not properly manufactured does not justify the vendee in canceling the contract entirely after delivery of the fourth installment, where he has neither returned nor offered to return any of the tools, and particularly where it appears that the defective ones could have been put in first class condition and that the manufacturers had offered to do this.</p> <p>Where the defects in goods sold and delivered under an executory contract are patent and the warranty is an implied one, the right of the vendee to recover damages for a breach of it does not survive acceptance of the goods after reasonable opportunity to ascertain the defects.</p> <p>Where the vendee has a contract with a company to furnish it the tool after it has been manufactured, the company’s failure to reject the tool within a reasonable time after delivery is in legal effect an acceptance of the tool by the vendee.</p>

Appeal by the plaintiff from a judgment in its favor, rendered by the City Court of the city of blew York upon a verdict. Action upon an advertising contract, in terms for the theatrical season, the defendant conceding its liability for four weeks, less the sum paid on account, and defending ■against any further recovery because of the misrepresentation of the plaintiff’s agent, who solicited the contract, respecting its term.

<p>Appeal from a judgment for the plaintiffs rendered by the City Court of the city of Hew York upon a verdict in their favor, and an order denying the defendants’ motion for a new trial.</p> <p>Action for damages resulting from the defendants’ breach of a contract for the sale and delivery of merchandise.</p>

Action by a passenger for personal injuries sustained while he was in the act of boarding the defendant’s car which was prematurely started.

.......~ Action against the maker and indorser of a promissory-note, the defense interposed by the former being infancy, and by the latter failure of consideration.

Appeal by plaintiff from a judgment of the City Court of the city of New York, rendered in favor of the defendant for the dismissal of the complaint.

Action to recover for goods alleged to have been sold and delivered to the defendant, the defense being a general denial.

Action by the indorsers against the maker and indorsers, of a promissory note; the defenses being usury at the inception of the loan, and a denial of notice of nonpayment to the indorsers.

<p>Appeal from an order and a judgment of the City Court of the city of Eew York, which sustained a demurrer and dismissed the defendants’ counterclaim.</p>

<p>Offer and acceptance — Implied acceptance — Entire contract — Measure of damages on rescission.</p> <p>The presentation by a solicitor of a publishing company to a "person of a printed form providing for the insertion in its weekly publication of his advertisement for twenty-six times, on alternate weeks, for a price fixed for each insertion payable monthly, is an offer, and when the person signs it and the- publication containing the advertisement is subsequently sent to him regularly, there is an acceptance, the contract becoming irrevocable, when publication of the advertisement begins. The contract is entire.</p> <p>Where the person gives notice of rescission after the ninth publication of the advertisement the publishing company is not entitled to continue publication as it is its duty to make the advertiser’s loss as small as possible.</p> <p>The company can recover for nine insertions but beyond that probably only for the profit it would have made had the contract been fully carried out.</p>

<p>Action for use and occupation — Innocent occupation by a contractor of private property supposed by him to be in a public street.</p> <p>An action for use and occupation depends upon the existence, or the implication, of a contract whereby the relation of landlord and tenant may be created.</p> <p>Where a corporation, contractor for a rapid transit subway, occupies for its plant a triangular plot of ground, at a street intersection, unfenced and indistinguishable from the street, without knowledge that it is private property, there is nothing in the situation of the parties which could suggest the relation of landlord and tenant and therefore the owner of the fee cannot maintain against the contractor an action for use and occupation during the time its plant remained on the plot.</p>

Appeal by plaintiff from a judgment of the Municipal Court of the city of Hew York, tenth district, borough of Manhattan, in favor of defendant. Action of replevin. ■

<p>Appeal by plaintiff from a judgment of the Municipal Court of the city of New York in favor of the defendant.</p>

Appeal by plaintiff from a final order in summary proceedings of the Municipal Court of the city of Hew York, first ' district, borough of Manhattan, in favor of the occupants.

This is an application for a temporary injunction restraining the defendant during the pendency of this action from interfering with, marking, plowing, cutting or taking ice from certain territory in what is described as the Mohawk basin.

Action for partition. The will, under which parties to this action claim title to the real property for partition of which this action is brought, contains the following: “ 1st. After all my law- ful debts are paid and discharged I give, devise and bequeath to my wife Anna, one-third of my real estate * ■ * *, also the sum of $400 in cash all of which is to be in lieu of her dower right in my estate. 2nd.

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

<p>Partition — A plaintiff must have actual or constructive possession—■ Words creating an absolute fee — Fee not to be cut down.</p> <p>The first clause of the will of a testator gave all his property to his wife and her sister equally, except as thereinafter provided for one Mersereau. The second clause gave him $1,000 at majority, to be paid him by them out of the shares theretofore given them and it was further provided that if, on the decease of both, there was anything “ left undisposed of ” by them it should go to him. The third clause gave them power of sale. After the death of the wife, who devised the premises in suit to her sister, still living, Mersereau brought partition.</p> <p>Held, that he could not maintain the action as he was not at its commencement in actual or constructive possession of the premises.</p> <p>That, so long as either the wife or her sister lived, his interest was confined to his legacy of $1,000 at majority.</p> <p>That under the wording of the first clause the wife and her sister took a fee and that the subsequent provision that anything “left undisposed of” by them should go to Mersereau must be rejected as inconsistent and void.</p>

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

<p>Action for the construction of an executory contract for the sale and conveyance of real estate.</p>

Action by the plaintiff to enjoin the defendant from continuing trespasses upon the plaintiff’s lands resulting from the defendant’s maintaining in and through them its water pipes. In 1883 one Hoffman and one Brooks owned the premises in question. Brooks conveyed to Hoffman and Hoffman to the plaintiff, in 1899, for a nominal consideration. Neither deed contained any grant or reservation of an easement to the defendant.

Ex parts application, for an order directing service of summons by delivery of a copy thereof at the residence of the defendant, or affixing the same to the outer door of the defendant’s residence and mailing, under the provisions of sections 435 and 436 of the Code of Civil Procedure.

<p>Demurrer to a complaint.</p>

Triax of an issue of law raised by demurrer to the 1st and 4th defences pleaded in the answer, on the ground that each is insufficient in law on the face thereof.

<p>Action to restrain a city from pumping dry private lands adjacent to its driven well system — Measure of damages — Injunction.</p> <p>In an equitable action brought to restrain a city from operating its pumps, feeding driven wells on its neighboring lands, to such an extent as to exhaust the water and moisture from the plaintiff’s lands to their injury, the measure of damages is the consequent diminution of rental value and is not the value of the crops which i might in each year of the pumping have been raised on the land 1 but for the pumps.</p> <p>1 The court awarded the plaintiff the cost of lowering the wells on his land, to meet the lowering of the water table, and refused him an injunction.</p>

<p>Motion by a receiver, appointed by the Supreme Court of the State of Hew York in this action to dissolve a partnership, existing between the parties, for an order directing him to pay out of funds in his hands as receiver certain obligatierna contracted by, him as receiver, to have his compensation and that of his attorneys determined, for a direction that, after making such payments, he pay the balance to a receiver ■of the firm subsequently appointed in bankruptcy proceedings, for a cancellation of the bond of the State receiver and for his discharge and that of his sureties. Cross motion by the receiver in bankruptcy for an order directing the State receiver to pay over to him the entire fund.</p>

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

<p>Contract of sale, delivery by installments — Successive recoveries by the vendee not permissible.</p> <p>The rule being that under a contract to deliver goods by installments the vendee may repudiate immediately upon any refusal of the vendor to deliver an installment and at once sue for all damages resulting under th.e whole contract, the vendee’s recovery of damages for the nondelivery of certain installments, past due-when he sued, bars him from thereafter recovering on the same contract for the remaining installments when past due.</p> <p>There can be only one recovery where the damages arise out of a single wrong.</p>

<p>Action upon a policy of insurance, issued by the defendant, upon the life of George S. Bracher.</p> <p>Trial by the court, jury having been waived.</p>

<p>Trust — Suspension of the power of alienation — Power to distribute — Invalid provision when cut off.</p> <p>A testator, after creating an annuity for his widow of an amount which required to satisfy it the income of the whole estate, gave the residue of the estate to his brother John and his sister Mary, and the survivor of them, “ and the heirs, executors, administrators and assigns of such survivor ”, in trust for the use and benefit of the children of said brother and sister living at the time of the testator’s death, and the issue then living of any deceased child or ■children of either the brother or sister.</p> <p>The trustees were directed to divide the residue of the estate into shares, and to hold one of such shares for the said children and descendants of the testator’s said brother and sister, and from ■and immediately after their respective deaths to hold the share set apart for each “ in trust for his, her or their child or children, and the issue, if any, of any of his, her or their deceased child or children who shall be living at the time of his, her or their decease respectively, his, her or their executors, administrators or assigns, if more than one, as tenants in common, but so that the issue of any deceased child, children or descendants of my said brother or sister shall take per stirpes only the part or share or respective parts or shares to which said deceased child, children or descendants would, if then living, have been entitled ”.</p> <p>It was further provided that if any child or descendant of either testator’s brother or sister, to whom a share or portion had been ' limited for life, should die without leaving a child or children or the issue of a deceased child, then the share of the child so dying-was to be held in trust for- each of the surviving nephews, nieces- or grandnephews and grandnieces, as the case might be, to whom-a portion of the estate had been limited for life, to be held, in the-same manner in all respects as his, or her, or their original part, or share was limited, in trust.</p> <p>Held, that the gift for the benefit of the children and grandchildren of John and Mary, living at the time of the testator’s death, did not unlawfully suspend the power of alienation.</p> <p>That the provision over on their respective deaths in trust for their children and issue, gave the share of any life beneficiary dying, and leaving issue, to such issue immediately upon the death, of the parent; that no technical trust (there being only a trust for distribution notwithstanding the use of the words “in trust”) was created in respect thereto, and that it was the duty of the-trustees to pay over the same upon the parent’s death.</p> <p>That the disposition of the share of any life beneficiary, who-might die leaving no issue, in trust for the nephews and nieces who might-survive, was invalid, as it unlawfully suspended the power of alienation, but that such disposition was not essential to the purpose of the testator in creating the prior estates and did not invalidate them. • - -</p>

<p>0íew York city — Closing streets — L. 1895, ch. 1006 — Injunction.</p> <p>Where two owners of neighboring lands abutting on an old road in the city of New York have, under conveyances from their predecessors in the title, a perpetual private easement as against each other to use so much of the road as runs in front of the premises of each, one of them will not be permitted, after the road has been legally closed in proceedings taken under L. 1895, ch. 1006, to fence in his portion of the road — an act which would debar the other owner from access to his premises — until a parallel road, technically opened by the city and designed as a substitute, has become actually available for use.</p>

<p>Actkmt to compel payment of a judgment out of the income of a fund held hy the defendant trustees.</p>

<p>Indictment — Hot vacated for the reception by the grand jury of unsworn testimony of children under twelve years.</p> <p>Where there is sufficient legal evidence to sustain an indictment, it should not be set aside merely because children under twelve years of age and not under oath were permitted by the grand jury to make statements before it, there being no claim that the children were not of sufficient intelligence to justify the reception of the evidence.</p>

<p>Ustoppel—When not applicable to a surety’s misstatement as to his property’s being exempt from execution — Veterans.</p> <p>A statement in the justification clause of an undertaking for bail given by a surety to the effect that his property is not exempt from execution does not estop him, where the sheriff seeks to sell it for default of the principal, from asserting it to be exempt as purchased with pension money.</p>

'Acttohs for injunctions restraining the operation by defendant of its driven wells and pumping stations at Spring Creek, and for past damages to plaintiffs’ agricultural lands by reason of the drying up of the soil by the abstraction therefrom by defendant’s driven wells of percolating waters.

<p>Action to recover penalties under the Forest* Fish and Game Law.</p>

<p>Devise by implication.</p> <p>Where the will of a testator, after giving and bequeathing by its third and fourth clauses a particular lot of land and certain money, in trust, for his son until he shall have attained majority, fails to devise him the fee but directs, in the fifth clause, that in case the son dies without leaving lawful issue before majority all the property real and personal “which is hereby bequeathed to him” shall go to the trustee individually or her heirs, there arises an implied devise to the son of the fee of the lot of land upon attaining majority.</p>

Action against the defendant as devisee to make her liable for a debt of her testator to the extent of the real estate devised to her.

<p>MAtion by the plaintiff for a new trial. The plaintiff’s intestate was an employee of the defendants.</p>

<p>Action to foreclose a mechanic’s lien. Motion to dismiss the complaint.</p>

<p>Motion to set aside a verdict and for a new trial.</p>

<p>Motion for a new trial in an action for breach of covenants in full covenant and warranty deed.</p>

<p>Infants — Attempt to get possession of a nonresident jockey for purposes of gain.</p> <p>The Supreme Court of the State of New York will not entertain a proceeding, begun upon a petition and order to show cause procured at the instance of the attorney in fact of the father or a colored jockey under age, the object of which seems to he to get possession of the boy for purposes of gain and without regard to his wishes or interests, and particularly where all the parties are residents of the, State of Louisiana and where, not only its laws as to contracts of apprenticeship are involved and are disputed but, where, owing to several separate contracts made in Louisiana by the father in regard to the services of the boy, conflicting contract rights may arise which are determinable only in, and by the laws of, Louisiana.</p>

<p>New York city — Civil service — “Regular clerk” protected from summary removal.</p> <p>A person appointed chief clerk in the office of the coroner of the borough of Manhattan, although his position is in the classified municipal service of the city of New York and is not subject to competitive examination, is to be deemed a " regular clerk ” within section 1543 of the charter of the city of New York protecting him from removal except upon charges served and after having been allowed an opportunity for making an explanation, where an examination of his duties shows that they are not confidential.</p>

<p>Action to determine claims to real property or remove a cloud on title — Title to land in the bed of the west side of the Bloomingdale road between 96th and 97th streets, Manhattan — Construction of the release to the city of New York executed by James Striker and others on March 24, 1795 — Boundaries.</p> <p>A person may maintain an action to determine claims to real property (Code Civ. Pro., § 1638) if he proves legal title, as possession is deemed to follow it; and he may maintain an equitable action to remove a cloud on title if he has actual possession at the time of the commencement of the action.</p> <p>The proceedings taken by the city of New York between 1791 and 1795 to widen and extend the Bloomingdale road were taken under L. 1787, ch. 61 (the Highway Act) and not under L. 1787, ch. 88, relative to streets.</p> <p>Tire purpose of the city was to acquire only a public road and an easement for it and it neither sought to acquire nor acquired the fee of the land in the road.</p> <p>The instrument, dated March 24, 1795, executed by James Striker (owner of land on the westerly side of the Bloomingdale road between 96th and 97th streets, Manhattan), and others owning other lands, releasing to the city of Mew York so much of their respective lands as might be necessary to make the Bloomingdale road four rods wide, must be deemed, in view of its recitals and of the attendant proceedings and circumstances, to have conveyed to the city only an easement in the road, the fee thereof, subject to the public use, remaining in James Striker and the other releasors.</p> <p>Where James Striker retained until his death in 1831 the land abutting on the westerly side of the said road between 96th and 97th streets the fee of the land in the road on that side to its center passed, in an action brought by a devisee of the abutting land to partition it among those entitled under Striker’s will, under a referee’s deed made in 1856 where its description was sufficient to cover the land in the road, and where the road was closed by the commissioners of the Central Park in 1868 in proceedings taken under L. 1867, ch. 697, the fee of the land in said westerly side of the road, released from the easement, passed under section 3 of that act vesting abutting owners with title to roads closed thereunder, to the purchaser from the referee and he could thereafter convey it unincumbered and separate from the abutting lands.</p> <p>Where the said purchaser, in I860, conveyed the abutting land, by a deed whose description excluded the land in the westerly side of the road, to one Sands and he conveyed the abutting land to one Kellogg before 1868, the court considered that Kellogg, as abutting owner when the road was closed, had no title to the land in the westerly side of it and this because the city never had the fee thereof and therefore could not pass it to Kellogg when the road was closed.</p> <p>A deed of lots described, as to their easterly boundary, as bounded “ Easterly in front by the Bloomingdale Road ” conveys the said road, lying in front of the premises, to its center.</p> <p>A deed of lots, referring to a map filed and giving their numbers thereon, described as beginning at a point formed by the intersection of the westerly side of said road with the northerly side of 96th street, thence westerly, thence northerly, thence easterly along the southerly side of 97th street to the westerly side of the road and thence southerly along the westerly side of it to the point of beginning does not convey any part of the road.</p>

<p>Motion to continue a preliminary injunction.</p>

<p>Aotioh for the construction of a wilL</p>

<p>Appeal from the final order or judgment awarding to the petitioner, Edward Mauterstock, the possession of a parcel of land situate in the town of Deposit, this county.</p>

<p>Motion by a purchaser, at a foreclosure sale, to be relieved of his purchase. ^</p>

<p>Issue of law upon demurrer to matters set up in the answer as “ a further and separate answer and defense.”</p>

<p>Pleading — Words libelous or slanderous per se only because spoken of one in his business must be pleaded as having been so written or spoken — When special damages are speculative — Plaintiff not required to prove the words false in the case of unprivileged libel or slander per se.</p> <p>Where words are libelous or slanderous per se not generally, but only because written or spoken of one in his business, they must be complained on as written or spoken of him in his business, in order that the complaint state a cause of action.</p> <p>When alleged special damages are speculative.</p> <p>The statement in the opinion in Orame v. Bennett (177 N. Y. 106) that the plaintiff proves malice for smart money damages by proving the defamatory words false, declared to be a dictum of the judge writing, and not the law.</p> <p>In the ease of libels or slanders per se, the defamatory words are presumed to be false, instead of the plaintiff having to prove them false, and it is error to say that it is for the plaintiff to prove them false.</p> <p>Unless the defendant pleads the truth of the defamatory words as a defence, they stand as false, and their falsity cannot be questioned by the defendant; and if their truth be pleaded as a defense,it is for the defendant to prove them true, and not for the plaintiff to prove them false; the burden of proof’is on the defendant.</p> <p>It is only in cases of defamatory words written or spoken on an occasion of qualified privilege that the plaintiff has to prove the words false. There, there is no presumption of their falsity, and therefore in order to prove malice and destroy the privilege, the plaintiff proves that the words were false and that the defendant knew they were false.</p>

<p>Heaeihg upon certiorari to review proceedings of respondents in the assessment of relator for personal taxes.</p>

<p>Action to restrain the city of New York from ousting its lessee of a pier at the foot of W. 79th street, Hudson river — Lessee’s use of the pier as a dump when not a defense to a threatened ouster by the city—Power of the dock board over pier and bulkhead lines at the foot of W. 79th street.</p> <p>On July 22, 1901, the defendant city of New York leased to the plaintiff for ten years the wharfage and cranage of the pier at the foot of W. 79th street, Hudson’ river, and the lease contained a provision authorizing the city to terminate it on notice during the term if the hoard of docks should determine to proceed with a proposed work (which should include the pier) of improving the river front “ according to any plan or plans now adopted and approved and pursuant to any existing * * * law ”. On May 17, 1901, the board of docks had adopted a plan which made a radical change in the pier line and in the bulkhead line at the foot of W. 79th street and which, if carried out there, would, because of piles and crib work, cut off access to the pier from the river. The commissioner of docks having on Nov. 30, 1902, given the plaintiff notice of a determination to proceed with the work of improvement and that it would necessitate a termination of the lease on Dec. 31, 1902, the plaintiff brought this action to restrain the city from ousting it or interfering with the pier or the collection of wharfage and cranage. The city interposed as a separate defense that the plaintiff without any authority or consent had used the pier generally as a dump for refuse. As another and separate defense, it alleged that L. 1894, ch. 152, §§ 1, 9, a statute appropriating to the extension of Riverside Park the water front on the Hudson river from 72d to 129th street except two public wharfs one of which was the wharf at the foot of W. 79th street, gave the board of docks control of the river front at the foot of W. 79th street for commercial purposes and that that statute and the charter of the city of New York (L. 1897, ch. 378) authorized the board to change the pier and bulkhead lines at the foot of W. 79th street as then used by law. The plaintiff demurred to these defenses as insufficient in law.</p> <p>Held, that the separate defense that the pier had been used as a dump was insufficient in law because there was no covenant in the lease which forbade such use.</p> <p>That the demurrer to the other separate defense must be sustained because the plan of May 17, 1901, was unlawfully adopted by the board and hence could not give the city a right to cancel the lease.</p> <p>That the “ existing law ”, referred to in the lease, on the subject of changing pier and bulkhead lines at the foot of W. 79th street, and the controlling law, was L. 1873, ch. 335, § 88, providing that the dock board “ shall not have the power to change the exterior lines of the pier and bulkheads in the city of New York as now established by law” (meaning L. 1868, ch. 288), and that neither L. 1894, ch. 152, nor the city charter of 1897, gave authority for adoption of the plan of May 17, 1901, so far as concerned the pier at the foot of W. 79th street. - - ■------</p>

<p>Assignment, equitable — Priorities.</p> <p>After one Lordi had, after partial performance, defaulted on a contract with the city of New York and been paid by it for what he had done, he, with the consent of the commissioner of public works, assigned the contract to one of his sureties, one Paladino, who completed it and received a certificate of the payment due him therefor. Paladino, with the consent of said commissioner, assigned almost all his claim to one Bouve who assigned to the plaintiff. Before Lordi had earned anything on the contract he, without the consent of said commissioner, assigned to a firm, who had furnished no work or materials for the contract, a sum of money, purporting to be a first lien on the final payment under the contract, to cover a past debt to the firm. The plaintiff brought this action against the city to recover his claim out of a balance due by it to Paladino.</p> <p>Held, that his rights were superior to those of the firm although his assignment was subsequent to theirs in point of time.</p>

Action to require the defendant to remove sewage matter from the lands of the plaintiff and to restrain the defendant from discharging sewage matter upon the plaintiff’s premises and for damages.

<p>The above are the same parties as those in a proceeding formerly decided by the Oneida county judge and reported in 39 Misc. Rep. 489. That proceeding was taken under the Oneida County Tax Law for the summary removal of the defendant as tenant in possession of the premises in question by the purchaser at tax sale. This is a summary proceeding for the removal of the defendant, pursuant to section 55 of the charter of the city of Utica, and presents entirely different questions. Petitioner claims to be the owner of the premises described in the petition by reason of having purchased them at a city tax sale and having received a city treasurer’s certificate of such purchase pursuant to said section 55. Defendant Williams is in possession of said premises as tenant of the owner.</p>

<p>Highway — Commissioners appointed to lay out one cannot materially depart from the route stated in the petition — Failure to fix the width of the highway.</p> <p>Commissioners appointed to lay out a highway may make a slight variation from the road as applied for but they cannot so far depart from the route stated in the petition as to warrant the assumption that the preliminary proceedings have been entirely disregarded by them.</p> <p>Where the questions they tried, and those upon which all the evidence was given, were whether the highway, extending from a main road to a bay, was a necessity, and what the damages were in such case, and their decision granted the highway for only a part of the distance and they determined the damages on the same basis, although all the owners were not similarly affected, and also failed to specify in their decision the width of the highway, the court granted a motion to modify their decision.</p>

<p>Action upon a promissory note. Defense usury. Upon motion for a direction of a verdict the court after stipulation to that effect discharged the jury and reserved decision upon the questions presented.</p>

Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, tenth district, borough of Manhattan, in favor of the Westchester Racing Association, entered upon an order dismissing plaintiff’s complaint as to it, and from a judgment entered in the same action in favor of the defendant Torpie, upon the verdict of a jury.

<p>Appeal by the defendant from a judgment for the plaintiff rendered hy the Municipal Court of the city of New York, third district, borough of Manhattan.</p> <p>Action by the wife against her husband to recover upon an alleged agreement for her separate maintenance and support.</p>

<p>Appeal by the defendant from a judgment of the City Court of the city of Hew York, entered on a verdict directed by the court in favor of the plaintiff.</p>

<p>Appeal by the defendant from an order entered in the City Court of the city of New York upon the verdict of a jury directed by the court in favor of the plaintiff, and from an order denying a motion for a new trial.</p>

<p>Appeal by the plaintiff from a judgment of the Municipal Court of the city of Hew York, second district, borough of Manhattan, in favor of the defendant in an action to recover penalties based upon the refusal of the defendant to furnish the plaintiff with transfers from one line to another operated by the defendant.</p>

<p>Conditional sale — Retention by the vendor of the jus disponendi — How lost by delivery — Waiver of prepayment in cash — Intent.</p> <p>Where a vendor who has sold personal property, on a condition precedent that he shall retain title to it until payment of the purchase price in cash, delivers it to the vendee for consumption, or for sale, or in a manner inconsistent with the continued ownership of the vendor, he is estopped from subsequently claiming title to the property as against bona fide purchasers of it from the vendee.</p> <p>Where the property is delivered to the vendee by the vendor without requiring payment in cash the presumption is that the latter intended to waive that condition and one who shows himself to be a bona fide purchaser of the property obtains a title to it free from any claim or lien of the vendor.</p> <p>The questions, whether he intended to waive his rights to retain title to the goods until payment and to be then paid in cash, held to be questions of fact.</p>

<p>Municipal Court of the city of Mew York — Grounds for a new trial.</p> <p>Semble, that under L. 1902, eh. 580, § 254, an act relative to the Municipal Court of the city of New York, that court has power to set aside a verdict and grant a new trial, in an action, on the ground that the verdict is against the weight of evidence.</p>

<p>Appeal by the plaintiffs from a judgment of the Municipal Court of the city of New York, third district, borough of Manhattan, rendered in the defendant’s favor upon his counterclaim for the sum of $530, damages and costs, and dismissing the complaint.</p>

Appeal by the defendants from a judgment of the Municipal Court of the city of ¡New York, fourth district, borough of Manhattan, awarding possession of a chattel to the plaintiff.

<p>Municipal Court of the city of New York — Parties to the foreclosure of a lien on chattels, L. 1902, ch. 580, § 137, 139.</p> <p>Where a mortgagee of chattels, removed without consent by the mortgagor, after default and demand, to the premises of a storage company, sues that company in the Municipal Court of the city of New York under L. 1902, ch. 580, § 137, to foreclose his lien, the mortgagor must be made a party defendant as although she has lost all title and right of possession by her default she has a right of redemption which may have a substantial value. Moreover, for the protection of other interests, she should be made a party to the end that she may be bound by the judgment.</p>

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

Appeal by plaintiff from a judgment of the Municipal Court of the city of Hew York, in favor of defendant, dismissing the plaintiff’s complaint.

Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, third district, borough of Manhattan, dismissing the complaint at the close of the plaintiff’s case.

<p>-Penal Code, § 640a, relative to authority to sell realty in cities of the first and second class — Constitutionality — Insufficient authority to sell — Dismissal of the complaint on the merits in the Municipal Court of the city of New York.</p> <p>A memorandum, procured by a real estate broker from Felice Boccuzzi owner of real property in the city of New York, reading</p> <p>Property 76 Mangin Street; $9,000.00, no less —Felice Boccuzzi”. ¡signed by his direction by his son alone, is not a sufficient compliance, in the matter of written authority to sell, with Penal •Code, § 640d, added by L. 1901, ch. 128, declaring that “ In cities •of the first and second class, any person who shall offer for sale any real property without the written authority of the owner of • such property or of his attorney in fact, appointed in writing, .shall be guilty of a misdemeanor ” — and without such written ■authority the broker cannot recover commissions of the owner.</p> <p>The memorandum is also insufficient to show any authority to sell at any price.</p> <p>Under the Municipal Court Act (L. 1902, ch. 580, § 249, subd. 1) an action in that court may be dismissed on the merits with costs where, at the close of the whole case, the court is of the opinion that the plaintiff is not entitled to recover as matter of law.</p> <p>The record should, however, show that both parties had rested when the motion for a dismissal was made.</p>

<p>New York city — Revised Ordinances, §§ 330, 331, as to projections from the house line on Broadway south of 59th street — Construction of general words in a statute or ordinance.</p> <p>A stationary awning, made of glass and iron, located over the entrance to a building on Broadway near 27th street in the city of New York and projecting from the Broadway house line about five feet is a violation of sections 330 and 331 of the Revised Ordinances of said city.</p> <p>The rule of construction that general words, in a statute or ordinance, are usually limited to things ejusdem generis does not apply where such words are followed by exceptions indicating that the users of the words understood the general words to have the broad scope which would be given them if they stood alone.</p>

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

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

<p>Appeal from orders of the City Court of the city of Hew York.</p>

This is an action for divorce upon the ground of adultery. By stipulation of the parties it was agreed that such case should he tried before a referee, whereupon the court, at Special Term, appointed a referee to hear and determine the same. The referee found in favor of the defendant. The court, at Special Term, refused to confirm the report of the referee. The plaintiff now moves for the appointment of a new referee to hear and determine such action.

<p>Condemnation — Of an easement in lands held by a railroad company by purchase only — Eminent domain.</p> <p>A city authorized by a special statute (L. 1903, ch. 193) to condemn lands for a public use, the construction of trunk and intercepting sewers, may condemn lands, when held by a railroad company by purchase and occupied by it for tracks, to the extent of laying a sewer under the tracks, under the same rules as apply to the lands of an individual.</p> <p>The mere fact that a railroad corporation owns and possesses lands creates no presumption that it acquired exclusive possession and use of them under the power of eminent domain and holds them in trust for a public purpose.</p> <p>Semite, that where lands have been condemned and are held for the public use the Legislature may authorize another to occupy them for another public use where the latter use may be enjoyed without detriment to the public or interference with the prior use. The delegation of authority must however be granted in express terms or by necessary implication.</p>

<p>Judgment—Power of the court to suspend operation of injunctive' provisions.</p> <p>The Supreme Court has always had power, in its discretion, temporarily to suspend the operation of its judgments or stay proceedings upon them for such time and on such terms as the court deems proper.</p> <p>The judgment, in an action for damages to the plaintiff’s farm occasioned by the pollution of the waters of a creek into which a city discharged its sewage and which was in turn discharged on the farm,- after directing the city so to arrange its sewage system as not to pollute the creek and injure the farm or cause offensive odors, suspended operation of the mandatory and injunctive relief for a period fixed and also gave the city leave to apply at' Special Term for a further suspension for such further reasonable time as might be necessary to obtain appropriate legislation or establish a different sewage system. After obtaining one suspension for one year the city applied for a second extension of one year.</p> <p>Held, that the court had power to grant it for sufficient reasons and that it was not an amendment of the judgment changing the substantial rights of the parties but was only a regulation of the manner in which the rights fixed by the judgment were to- be enforced.</p>

<p>Liquor Tax Law — Inadvertent errors of a town clerk insufficient to justify a resubmission of the local option questions.</p> <p>Inadvertent errors of a town clerk in printing, in his notice of a submission of the four local option questions prescribed by section 16 of the Liquor Tax Law, the caption of the questions only once and not repeating it, and in printing the questions on the ballots without printing the caption to them, are not a sufficient ground for ordering a resubmission oí the questions where the notice and ballots were otherwise proper in form and there is no charge of any other mistake or of any fraud.</p>

<p>Bequest for Indian and Domestic Missions — Indefiniteness as to the legatee.</p> <p>Where the will of a communicant of the Protestant Episcopal Church, beyond bequeathing $2,000 “to be equally divided between the Indian Missions and Domestic Missions of the United States of America ”, contained nothing to show that any society or corporation was to take and apply the bequest, and there was no extrinsic evidence suggesting that the testatrix had in mind any society or corporation connected with her church which should take the bequest, and there was no proof of the existence of any corporation having a name such as that used in the will or of any corporation having the corporate name of “ Indian Missions of the United States ” or “ Domestic Missions of the United States ” or “ Indian Missions ” or “ Domestic Missions ”, the court held the bequest void for indefiniteness as to the legatee and also decided that the “ Domestic and Foreign Missionary Society of the Protestant Episcopal Church in the United States of America” was not entitled to the bequest although conducting missionary work in the United States generally as well as among the Indians and although the testatrix was a member of a local woman’s auxiliary branch of the society and took a missionary magazine published by the society.</p>

<p>Negligence — Damages for the death of the driver of a brewery wagon reduced from $18,000 to $12,000.</p> <p>A verdict, in a negligence case against a railroad company, for $18,000 for the death of the driver of a brewery wagon, aged thirty-eight, earning $720 per year, and leaving a wife thirty-four years old and three children under fifteen years of age, is excessive and should be reduced to $12,000.</p>

<p>Tax—Power of the Legislature to remedy an inadvertent repeal of am act granting trust companies an exemption from other taxation upon payment of a franchise tax.</p> <p>Where the Legislature has through inadvertence repealed, by an amendment to the Tax Law, an exemption from certain taxes theretofore paid by trust companies, which companies by such act are made subject to the special franchise tax, it has power by a retrospective act to correct such unintentional repeal, in such wise as to relieve the trust companies from taxes, embraced within such former exemption, assessed upon them between the date of the repeal of the exemption and the passage of the act restoring it.</p>

<p>Injunction—Effect upon it of a voluntary discontinuance of the action-without the defendants’ consent—Measure of damages under the undertaking.</p> <p>Where the plaintiffs voluntarily, and against the opposition of the defendants, discontinue an action in which they have procured a temporary injunction, the order of discontinuance procured by them amounts to a determination that they were not entitled to the-injunction and the defendants become entitled to an order of reference, under the undertaking given to procure the injunction, to-determine the damages they suffered by it.</p> <p>Unsuccessful motions of the defendants to have the injunction-vacated do not bar them from the order of reference as the final outcome of the suit, and not the orders entered on the motions to-vacate, determines the right to damages.</p> <p>The defendants were held entitled to the order of reference to-determine the reasonable counsel fees paid by them for making the unsuccessful motions, even though they had suffered no other damage from the injunction.</p>

<p>Action to reform a deed — Usury — Agreement for an investment distinguished from a loan — Survival of an option to repurchase — Election — Improper assumption clause in a deed—Transactions, etc., with a partner since deceased inadmissible against a surviving partner — Code Civ. Pro., § 829.</p> <p>Proof, made in an action to reform a deed brought by the surviving partner of the firm of N. K. & M. Connolly, tending to show that the defendant John Keenan wrote N. K. Connolly, since deceased, that he could place about $18,000 in real estate which would net eight per cent, for two years, that N. K. Connolly forwarded to him that amount of firm money, that thereupon Keenan for that sum, by the deed in question, conveyed to N. K. Connolly his own property for two years with a proviso in the deed for reconveyance upon repayment and with a further provision that N. K. Connolly should assume payment of certain mortgages on the property, accompanied by an agreement signed by Keenan in which he guaranties N. K. Connolly to receive during his ownership of the property eight per cent, net on $18,000, “ his investment in said property ”, does not, in the absence of sufficient proof that a loan was intended, show a loan to Keenan but rather an investment made through him and therefore usury is not a defense to him to the action.</p> <p>Although Keenan’s option to repurchase be not exercised by him within the two years it survives to him, where, after the two years, N. K. Connolly receives and accepts of him remittances upon the investment even though these are at a lower rate than eight per cent.</p> <p>Where Keenan finally refuses to make further payments, claiming that his subsequent advances to N. K. Connolly or his firm have ■exceeded $18,000, Keenan must at once surrender and deed the property or exercise his option to repurchase it.</p> <p>The clause in the deed, making N. K. Connolly assume the mortgages, is improper upon the facts and must be stricken out.</p> <p>Code Civ. Pro., § 829, precludes Keenan from testifying upon the trial to personal transactions and communications had by him" with N. K. Connolly, since deceased, in regard to the advances for which latter Keenan interposed a counterclaim, the plaintiff being N. K. Connolly’s sole surviving partner as well as the purchaser and assignee of his interest in the firm.</p>

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

<p>Tax — Application to tax commissioners to correct an assessment of a corporation — Its statement of its financial condition how far conclusive upon them — Evidence to be returned by them — Market value of stock, and earnings, as bases of assessment — Exemption of realty already taxed by the Franchise Tax Law — Franchise not taxable as capital.</p> <p>Where a corporation applies to tax commissioners for correction of an assessment made by them upon its capital and presents to them a sworn statement of its liabilities and assets and of the value of the latter, they must accept the statement as true where there is nothing to contradict it.</p> <p>Whenever their acts are challenged they must beside setting forth the conclusion reached by them also state the evidence on which it is based, to the end that the court may determine whether the conclusion was fairly drawn from the facts established or whether they acted arbitrarily in the matter.</p> <p>The market value of the stock of a corporation, as evidence of the actual value of its assets, is a deceptive and treacherous test and is particularly unsafe where the commissioners do not return how they ascertained the market value.</p> <p>The earnings of a corporation, as ascertained by the commissioners so far as appears only from the dividend declared and paid during the year, are not a proper basis of assessment unless it appears that the dividend was paid from the earnings of that particular year.</p> <p>Gas pipes and mains of a corporation laid in streets and which have been included in the State assessment under the Franchise Tax Law are not taxable by the local authorities as real estate.</p> <p>The franchise of a corporation is not a part of its taxable capital.</p>

<p>Rescission — When the principal ratifies the unauthorized fraud of his agent and must restore.</p> <p>A corporation, led to purchase worthless stock of an insurance company in reliance upon false representations as to its financial condition made by an executive committee of the directors of the company acting as agents to negotiate a sale of the stock of the individual stockholders, may rescind, where it acts promptly upon discovery of the fraud, and recover the money paid an owner of the stock where he knew, before he sold it, that the sale had been negotiated by the committee, as the owner by making the sale ratifies the agency assumed by the committee.</p> <p>It is not material that a majority of the committee believed the false representations to be true or that the owner of the stock never authorized them to be made or that he did not know what representations were made or that he personally knew nothing of the actual condition of the company.</p>

<p>Demurrer to complaint.</p>

<p>Demubbeb by the plaintiff to the second defense to the third cause of action alleged in the complaint in this action.</p>

<p>Negligence — Passenger injured by slipping on oil on an asphalt platform of a railroad station — Res ipsa loquitur.</p> <p>Proof, made in an action brought against a railroad company by a passenger for damages for personal injuries he sustained from slipping, at night, upon oil on an asphalt platform of its train shed, fenced in and lighted by electricity, while he was alighting from his incoming train, tending to show that, while strangers might and occasionally did gain access to the shed, it was intended only for passengers and employees and was under constant control by the company with opportunity to it to observe the condition of the platform at all times, that the station was an inspection station where the journals of ears were oiled, that oil had been spilled on the platform before and that no one but an oiler could obtain access to the oil supply-room in the shed, must, in the absence of any explanation of the accident or of the oil being there being given by the company, be deemed sufficient to afford prima facie evidence from which a jury may infer that the company had not exercised that ordinary care which the law requires and to justify the jury in giving the passenger a verdict under the doctrine of res ipsa■ loquitur.</p>

<p>This is an action in equity and under section 1925 of the Code of Civil Procedure to remove a tax lien upon plaintiff’s property as a cloud upon title, and to set aside the tax levy for the current fiscal year (1903), as assessed and laid by the assessors and trustees of the village of Spring Valley, under chapter 21 of the General Laws, known as the “ Village Law,” upon the ground that the same is illegal and void, and for an injunction restraining the village of Spring Valley, its collectors, officers, agents and attorneys from collecting and receiving, appropriating, applying or using any moneys for taxes under said tax levy, and from doing anything to enforce the payment or collection thereof.</p>

<p>Estoppel — By pleadings inducing the other party to sleep upon his rights until they are gone — A defense arising pending the action must be interposed by a supplemental complaint, and on leave to serve it.</p> <p>Where the owner of an undivided share in real property brings an action to partition and sell it, elects to make a party to the action the holder of a judgment recovered against his grantor, then deceased, and there is then time, before expiration of the lien of the judgment, for its holder to obtain the necessary leave from the proper surrogate to issue execution upon it and to sell under it, and the complaint, setting up the judgment and substantially asking payment of it, remains, in spite of amendment, practically the same in these respects until there is no longer time for the said holder to obtain such leave and to sell, and the judgment is assigned during the action and the assignee is refused by the surrogate leave to issue execution upon it on the ground that its lien would expire before a sale could be made, the plaintiff is estopped by his pleadings from changing his position and asserting, by an amended complaint, served after service of an answer of the assignee demanding payment to himself, that the adjudication of the surrogate, refusing the assignee leave, freed the plaintiff’s share, as that of a purchaser in good faith, from the lien of the judgment.</p> <p>The proper way to take advantage of facts arising after action brought and constituting a new defense is to obtain leave to serve a supplemental complaint, and where no leave is obtained even an amended complaint speaks only of the time of the commencement of the action and the rights of the parties are to be determined as of that time.</p>

L. Easingwood,. of the town of Kirkland, directing the sale of two heifers of •the appellant which had been-seized pursuant to chapter 19,. title 10, of the Code of Oivil Procedure, in relation to animals straying upon the highway.

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

<p>Request by the grand jury to the court for advice and instruction.</p>