Volume 44 — New York Miscellaneous Reports

<p>Suit for an injunction' to restrain the defendant, who' is a captain of police, from a continual trespass on the plaintiff’s premises. Motion for a permanent injunction.</p>

Suit for the settlement of the accounts of the plaintiff as trustee under the will of John. Flynn, deceased, and for a construction of the will. The testator died in 1897, leaving a widow, Annie D. Flynn; two daughters, viz., Mary 0. and Regina; three sons, viz., William L, James and John, jr.; and one grandchild, Charles Egan, son of a deceased child. All of these are still living except the son James, who has died unmarried, without issue, and intestate.

Motion by both sides to direct a verdict, reserved for -consideration. Action to recover salary as a school teacher in the city of New York at the rate of $1,250 a year, payable in equal monthly payments, from July 1, 1898, to December 1, 1901.

<p>Demurrer to complaint.</p>

<p>Motions to dismiss the complaint and for a new trial.</p>

<p>Habeas corpus proceedings.</p>

<p>Motion to cancel a lis pendens.</p>

<p>Ejectment — Costs — Continuity of the original action not affected by a second new trial awarded under Code Civ. Pro., § 1525.</p> <p>In an action of ejectment, it appeared that on the first trial a judgment entered on a verdict, directed for the plaintiffs was reversed by the Appellate Division with costs to the defendants to abide “the event", that a judgment entered on a verdict directed for the plaintiffs on the second trial was affirmed by the Appellate Division and that 011 a third trial, obtained by the defendants under Code Civ. Pro., § 1525, a verdict was directed in their favor upon which they entered judgment. Upon a motion for retaxation of costs.</p> <p>Held, that the identity and continuity of the original action were not affected or broken by the order for a second new trial made under Code Civ. Pro., § 1525, that “the event” contemplated by the order of the Appellate Division — the final result of the action in which the costs were awarded — had been in favor of the defendants and that the clerk was therefore correct in taxing in their favor the costs and disbursements of the first appeal.</p>

<p>Motion to vacate an order of arrest — Construction of Code Civ. Pro., § 572i providing for the defendant’s discharge “if the plaintiff unreasonably delays the trial of the action”.</p> <p>The word “ delay ”, as used in Code Civ. Pro., § 572, entitling a defendant under arrest in a civil action to be discharged from imprisonment “ if the plaintiff unreasonably delays the trial of the action”, means more than a mere neglect to proceed and must be held to intend a positive act in the way of obstruction.</p> <p>Where both parties to an action, in which the defendant has been incarcerated under an order of arrest, might have, but neither ever has, filed a note of issue or served a notice of trial to put the case in a position where it could be tried, the defendant cannot be heard to say, on his motion to vacate the order, that it should be vacated because the plaintiff has unreasonably delayed the trial.</p>

<p>Costs — When a trial occupied more than two days.</p> <p>On May 23rd, the attorney for the plaintiff in an action examined and accepted the jury and the attorney for the defendant while examining them on that day stated to the justice presiding that the counsel who was to try the action desired an adjournment until the next day. Thereupon the justice stated in court that the case was to be considered on trial in that part of the court and it appeared in the New York Law Journal of May 24th as on trial in that part of the court on the previous day and as “ unfinished.” The case was tried on May 24th and 25th.</p> <p>Held, that the clerk was correct in taxing for the successful party an item of ten dollars costs for a trial occupying more than two days.</p>

<p>Action to set aside a transfer.</p>

<p>First Judicial Department — Special term calendar — Preference where an administratrix is the sole party defendant — Distinction as to preferences on the trial and special term calendars.</p> <p>Where an administratrix moves under Code Civ. Pro., § 791, subd. 5, for a preference on the special term calendar as being the sole party defendant in the action and the motion is made on the papers and proceedings and pleadings and a copy of the latter is on the motion handed up to the court, it has before it unquestionable proof that the administratrix is the sole party defendant and therefore entitled to the preference, and the rule, of some cases, that a right to a preference will not be inferred from the mere fact that the title of the action indicates that the plaintiff or defendant is an administrator, has no application.</p> <p>The further rule, that the statutory preference given by said section cannot, without some additional reason, be permitted to advance an action on the trial term calendar of the First Judicial Department over issues noticed for trial at prior trial terms, does not apply to any extent to the special term calendar in that department, as the latter calendar is kept up to date while the former is much behind in the disposition of actions pending.</p>

<p>Action against a corporation, organized under the Banking Law, for a breach of its covenant that on or before a certain date the plaintiff should receive a certain sum of 'money for certain securities and that the date had passed without payment — Sufficiency of the complaint — Demurrer to defenses — Ultra vires not a defense to a corporation where the other party has-fully executed the contract — When the contract is not against public policy nor mala in se, or mala prohibita within section 159 of the Banking Law — When a defense that the plaintiff had not marketable title is bad — Defense of false representations, to the effect that certain stocks were not assessable, when demurrable — Counterclaim for deceit, when demurrable — When admissible under Code Civ. Pro., § 501.</p> <p>A complaint, against a domestic corporation organized under the Banking Law, which alleges that the plaintiff owned stocks and bonds of a ship building company, on August 28, 1902, put them at the disposal of the defendant giving it a right to sell them according to its judgment and discretion, that the defendant agreed that on or before August 25, 1903, the plaintiff should receive for them a named sum of money, that the plaintiff placed them at the disposal of the defendant and made no further attempt to sell them and tendered them repeatedly to the defendant and that August 25 passed without payment, states a cause of action.</p> <p>Further held, that, a first separate defense alleging that the contract was ■ultra vires of the corporation, was demurrable as the plaintiff had fully executed the contract, even though he was still in possession of the securities.</p> <p>That, the contract was not void as against public policy or mala in se.</p> <p>That, it was not mala prohibita, within section 159 of the Banking Law, prohibiting such a corporation from- holding stock in any private corporation to an amount in excess of ten per cent of the capital of the corporation holding such stock; and that, beyond that, nothing in the contract showed that the securities were intended by the parties to constitute part of the capital of the defendant, or that the defendant was intending, or that the plaintiff knew the defendant was intending, to invest any trust funds in the stock of the ship building company.</p> <p>Third and fourth separate defenses, alleging that the plaintiff was a director and large stockholder in a Delaware corporation and cognizant of its affairs, that, by false representations he succeeded in selling that corporation to the ship building company, receiving payment in part in. securities of that company and in part in cash, and that, although he covenanted that the Delaware corporation should, when sold, be free from debt and liens, except as specially provided and excepted, it was not so free, do not tend to establish allegations of these defenses that the plaintiff received the securities, he placed at the disposal of the defendant, fraudulently and had not and could not make marketable title to them.</p> <p>Assuming that the ship building company might have rescinded, the plaintiff’s title was good as far as the defendant was concerned.</p> <p>These defenses are bad as resting on a contingent defeasability of title which has not become actual.</p> <p>A fifth separate defense, repeating the allegations of the third and fourth separate defenses, and then alleging that, when the contract -was made, the plaintiff knowingly falsely represented the stocks of the ship building company as full paid and not assessable and that, on the contrary, the holder “was liable for further assessments * * * by reason of the allegations iff the foregoing Third and Fourth defenses of the defendant ”, is bad where examination of those defenses discloses that they contain nothing to show that the stocks were not fully paid, and where the statute in that regard, of the State of the domicile of the ship building company, has not been pleaded.</p> <p>A counterclaim1, which alleges a consummated contract made between the plaintiff and other stockholders of the Delaware corporation and one Nixon or others, by which the properties of that corporation were to be sold and which further alleges that, in order to induce the defendant to advance to the plaintiff the cash part of the consideration, the plaintiff made false representations to the defendant, and that it, relying thereon, paid out the cash to assist Nixon or the others, with the result that the money was “wholly lost to the defendant”, while admissible under Code Civ. Pro., § 501, is demurrable, as the claim is for deceit and no facts are alleged from which it can reasonably be inferred that the money was “ wholly lost to the defendant.”</p> <p>The mere fact, that advances were made to a third party on the plaintiff’s false representations, does not per se establish loss in any amount to the defendant.</p>

<p>Aotioh for a specific performance of a contract. Demurrer to complaint.</p>

<p>This was an action, by persons suing as administrators with the will annexed of a deceased testatrix (a wife), to recover a sum of money, from the executors of a deceased testator (her husband), which they asserted the right to recover as the proceeds of property alleged by the plaintiffs to have been held by the husband and wife as community property under the laws of Texas. The plaintiffs claimed under an appointment of the Surrogate’s Court of New York county, and alleged that the defendants, who had received letters testamentary from the Surrogate’s Court of New York county, had assets of their testator, which originated in community property of the husband- and wife, and that such" assets were, to the extent of the wife’s interest in the community property in which they originated, unadministered assets of the deceased wife’s estate in New York county, and were, therefore, applicable to the payment of the claim asserted by the plaintiffs as representatives of the deceased wife. The husband and wife were married in Texas. The plaintiffs showed that under the laws of Texas the subsequent acquisitions of either spouse ("with certain exceptions) were community property, owned in equal undivided portions by husband and wife, and that each spouse on dying could dispose by will of his or her share of the community property. Mrs. Bice died before her husband, leaving a will by which she bequeathed a very large amount in legacies. Her. will was admitted to probate in Houston, Texas, and Oran T. Holt, the executor named in her will as independent executor, under the laws of Texas, received letters testamentary from the County Court of Harris county, a court of probate in Texas. He promptly brought suit against William M. Bice, the husband of his testatrix, to recover assets of the estate alleged to exist, as community property, in the hands of her husband. This suit was brought in a State court, and was removed to a Federal court on the ground of diversity of citizenship, and was pending at the time of the death of William M. Bice. Two other similar suits were brought against alienees of Bice. These three are the suits in which judgments were obtained that are incidentally mentioned in the opinion as “ the other judgments read in ■ evidence.” William M. Bice defended the suit brought against him by Holt, and instituted an action against Holt,' in the United States Court for the Eastern District of Texas, to test the validity of the claim asserted by Holt and to declare it void, and to remove it as a cloud upon Bice’s title to property in Texas. Bice denied the validity of the executor’s contention, on the ground that, though married in Texas, he was not a citizen of Texas at the time, and never became a citizen of Texas thereafter, and that the community laws of Texas did not apply to his property. In each of the Texas suits testimony was taken by deposition and also by special examiners of the court and was returned to the clerk’s office of the court. Before any of the suits in Texas came to trial, Wm. M. Bice, the husband, died in New York city. -Bice’s will was propounded for probate in New York county, and was contested. See Matter of Will of Rice, 81 App. Div. 223; 176 N. Y. 570. Pending the contest in New York over his will, letters of temporary administration were granted upon his estate in Texas, and his will, not having been probated in Texas, permanent letters of administration were granted upon his estate to Horace B. Bice by the County Court of Harris county, Texas. Horace B. Bice, the administrator in Texas, having received authority from the court of his appointment, entered into an agreement of compromise and settlement with Oran T. Holt, executor of Mrs. Bice, wherein, among 'other things, it was agreed that upon payment of a sum agreed to be received in satisfaction of all claims and demands asserted by Holt, and disputed and denied by Wm. M. Bice in his lifetime, the suits embodying the dispute between Holt and Wm. M. Bice should proceed to decree adjudicating against Holt. Meanwhile, Congress had created the Southern District of Texas (Act 1902, March eleventh) and had transferred thereto all cases pending in the Eastern District of which the Southern District would now have territorial cognizance, providing, however, for the retention in the Eastern District, of all pending causes in which the testimony or any part of it had been already taken before a judge. The causes involving the dispute between Holt and Bice were revived by Bice’s Texas administrator and proceeded to judgment and decree pursuant to the agreement of settlement and compromise, adjudging the invalidity of the claim asserted by Holt. One of those suits was within the territorial cognizance of the Southern District of Texas, was deemed by Holt and Bice, administrator, to have been transferred thereto from the Eastern District, by the terms of the act of Congress, notwithstanding testimony had been taken therein by deposition and before special examiners, and the action was revived in the Southern District and proceeded to a decree therein. Certain of the legatees of Elizabeth B. Bice were residents of New York; they deemed themselves aggrieved by the action of Mr. Holt and one of them, Adele Baldwin, petitioned the Surrogate’s Court of New York county, upon an exemplified record of the probate proceedings upon Mrs. Bice’s will in Texas, for the recording of the same in the said surrogate’s office, and the issue of letters with the will annexed thereon to the petitioner, joining Wm. Ogden Harrison with her as coadministrator. The surrogate admitted the exemplified will and proofs to be filed in his office, and issued a citation, and order to show cause, directed to Oran T. Holt, directing him to qualify as executor in New York or show cause why he should not be deemed to have renounced. The citation and order were served on Holt personally in Texas, pursuant to an order of publication or personal service outside of "the State. On the return day, as Holt failed to appear, the surrogate made a decree that he be deemed to have renounced, and issued letters of administration, with the will annexed, to the present plaintiffs. The contest over the will of Wm. M. Bice in New York having ended with a judgment by the Court of Appeals affirming a decree of the surrogate of New York county admitting it to probate, the present defendants, named as executors in his will, received letters testamentary in Hew York. The plaintiffs sued the defendants to obtain a judgment, subjecting blew York assets of Wm. M. Rice to the claim of plaintiffs as administrators, with the will annexed of his deceased wife, for the purpose of paying blew York legatees of his deceased wife, who had not accepted the settlement effected by her Texas executor. The defendants interposed numerous defenses; among them: that the appointment of the plaintiffs was void, and that the surrogate made it without jurisdiction or authority; that the plaintiffs were without capacity to sue and that the judgments between the Texas executor of Mrs. Rice and the Texas administrator of Mr. Rice were res adjudicata between the present parties, and a bar to this action. Upon the triál, when the judgment between Rice and Holt, the decree of the Southern District of Texas, was offered in evidence in behalf of defendants, it was objected to; among other grounds, on the ground that the court was without jurisdiction, because the action was instituted before the creation of the Southern District, was pending in the Eastern District when Wm. M. Rice died* abated upon his death, and was, therefore, not a pending action, transferred to the Southern District by the act creating the Southern District; and, further, because it was an action which, if deemed pending within the terms of the act, still was retained in the Eastern District by virtue of that provision of the law which retained causes in which evidence had been taken before a judge.</p> <p>In the course of the trial, it became apparent that, if the plaintiffs were without the capacity which they alleged, or if any of the judgments pleaded and offered in evidence as a bar to the action were actually a bar, the trial of all other issues was wholly unnecessary. Consequently after the close of the plaintiffs’ case, the judge heard arguments on these propositions, and having determined them all in favor of the defendants he announced the following opinion:</p>

<p>Costs — Persons, who sue in a representative capacity only and whose lack of capacity is adjudged in the suit, will be charged with costs personally.</p> <p>Where persons sue in a representative capacity, as administratrix and administrator with the will annexed of a testatrix, and their capacity is denied and it is adjudged in the action that their appointment was void and consequently that they are without the representative capacity which they allege, they must be charged with costs personally.</p>

<p>Motion by the defendant for an order directing that the ' city of Sew York be made a party defendant to this action, and directing the plaintiff to issue supplemental summons and to cause the same to be served upon the city of Sew York when so made a party.</p> <p>This is an action to recover various sums due the plaintiff for interest on certain bonds issued by the defendant. Subsequent to the issue of the bonds, -by the passage of the Greater Sew York Charter, a portion of the school district as it had existed at the time when the bonds were issued was cut off and became a part of the city of Sew York. So adjustment of the bonded indebtedness of the district having been made between the city and the district, interest was not paid on the bonds and this action was brought.</p>

<p>Action to recover brokerage commission. Motion for a new trial.</p>

<p>Fire insurance — Construction of New York standard (eighty per cent) average clause.</p> <p>A fire insurance policy provided that, unless otherwise provided by agreement endorsed on or added to the policy, it should be void if the insured now has or hereafter procures any other insurance on the property covered in whole or in part by the policy, that the insurer should not be liable for a greater proportion of any loss than the amount fixed by the policy bore to the whole insurance on the property, and that the insurer should not be liable for any greater proportion of a loss than the sum hereby insured bears to eighty per cent of the actual cash value of the property at the time of a loss. At the time of the issue of the policy, upon which the plaintiff brought this action, he had on the property covered by that policy other policies amounting "to 175 per cent, of the actual cash value of the insured property, which fact he concealed from the insurer, and when it issued the policy in suit the property became insured for about 200 per cent, of its actual cash value. On the day after the policy in suit was issued the insured took out, without notice to the insurer, another policy which made the total insurance on the property amount to 230 pér cent, of its actual cash value.</p> <p>Held, that while the last above stated eighty per cent, clause impliedly authorized the insured to take out, without the written consent of the insurer, additional insurance up to eighty per cent, of the actual cash value of the property, that clause did not cover the insurance obtained by the insured before the policy in suit was issued as that insurance far exceeded eighty per cent, of the actual cash value of the property, and that the policy was thereby avoided.</p> <p>That the policy taken out the day after the issue of the policy in suit, whereby the property became insured for 230 per cent, of its actual cash value, was in itself a distinct act of avoidance.</p>

The action was begun by the plaintiff as one at law to recover of the defendant, the Home Savings Bank of Albany, the deposit in suit as a gift to her from Kate V. Beers, her mother, but subsequently the defendants, Franklin B. Beers and Harvey S. Bedell, executors of Kate V. Beers, were interpleaded as they claimed the deposit as belonging to her estate.

<p>Action brought by the plaintiff to recover from the defendant, the Albany County Savings Bank moneys deposited to the following account: “ The Albany County Savings Bank in Account with Huldah Van Aernam or Huldah B. Hallenbeck, pay to either or the survivor of either.”</p> <p>The printed instrument which Huldah Van Aernam signed, referred to in the opinion, read as follows:</p> <p>1 “ October 7th, 1897.</p> <p>“ The Treasurer of the Albany County Savings Bank.</p> <p>“ Will please add the name of my niece, Huldah. B. Hallenbeck, as owner and creditor with me of all moneys heretofore, or which may hereafter be, deposited in said bank under this account Ho. 12413, together with all the interest which has been or may hereafter be, credited to the said account ; with full authority for each, or either of us, or the survivor of us, to draw from the said bank, the whole or any part of such moneys or such interest.”</p> <p>It further appeared that before the death of Huldah Van Aernam, her niece, Huldah B. Hallenbeck, made two withdrawals from the deposit. The court found that Huldah Van Aernam intended that the deposit should become her niece’s property upon her own death. " - •</p>

<p>Preliminary injunction — Refusal to vacate one obtained in an equitable action brought by owners of property adjacent to a- base ball park, conducted By the defendant, where- games of base ball are- played on Sunday for which an admission fee is charged, to restrain such playing as constituting an. invasion upon, the said' owners? rights of personal liberty and property;</p> <p>In view of the provisions of Penal Code, §§ 259, 260, 265, relative to the observance of Sunday, there is sufficient doubt as to the legal right of a base ball association to conduct on. Sunday a base ball game upon- its grounds, for entrance to which an admission fee is charged, to justify the Supreme Court in refusing to vacate- a preliminary injunction granted in an equitable action brought by owners of property adjacent to the park, against the association to restrain such playing upon the claim of said, owners that they are likely to suffer a personal injury from the Sunday games, in that the noise and confusion and public parade of the people incident to the game will deprive them of their usual proper and necessary Sunday quiet and" rest, and upon the further ground that by such noise, etc., the actual value of their real- property, for residential purposes, will Be depreciated.</p>

Action to recover from the estates of two deceased trustees the amounts of six trusts of money and hank stocks created for the plaintiffs by their father, the money being deposited in savings banks.

Motion to discharge the defendants on the ground that, the depositions on which 'the warrant was granted do not state facts constituting a crime.

<p>New York city — Summary jurisdiction of city magistrate under the Public Charities Law.</p> <p>A city magistrate of the city of New York has no jurisdiction summarily to try and. convict a woman between the ages of fifteen and thirty years, sentencing her to three years’ imprisonment in the State reformatory.</p> <p>The Public Charities Law creates no new crime nor does it extend the jurisdiction of city magistrates.</p> <p>The definition of the offense of being a common prostitute, and its punishment, must be found in the Penal Code and in the Code of Criminal Procedure or in the provisions of the charter of the city of New York, and there is no warrant for the imposition of three years’ imprisonment on summary conviction before a magistrate.</p>

<p>New York city — Interest, on an award for property condemned, when title is vested in the city before confirmation of the commissioners’ report.</p> <p>When, under the provisions of the charter of the city of New York, the city takes property in advance of the termination of the condemnation proceedings and before confirmation of the commissioners’ report, the commissioners have no power to assess any part of the interest allowed to the property owner, as compensation for such preliminary taking, upon such property owner.</p>

Motion to confirm referee’s report, in partition and hear- - ing of exceptions, filed by unsecured creditors who were found by the referee to have no lien upon or interest in the real estate or proceeds of sale.

<p>When payment of an assessment for a local improvement, valid on its face but void for facts dehors the record, has not been made under duress of law — Such an assessment must be set aside before the payment can be recovered — Power of the Legislature to prohibit an action to recover an invalid assessment for a local improvement, except upon compliance with certain conditions.</p> <p>Where an owner of land upon which has been laid an assessment, apparently valid but actually void by reason of facts dehors the record, pays the assessment with full knowledge of those facts before any attempt has been made to enforce it, he cannot recover of the municipality the payment as one made under duress of law, nor can he recover it at all unless the assessment is first set aside.</p> <p>The charter of second class cities (L. 1898, eh. 182, §§ 466, 467) providing, in section 466, an exclusive remedy for the party aggrieved, in the case of assessments alleged to be void for fraud, defect in the work or substantial error, and precluding any resort to a bill in equity, is a valid enactment as thére can be no question of the power of the Legislature to prohibit an action to recover an invalid assessment for a local improvement, except upon compliance with certain conditions.</p>

<p>Action for negligence; motion for a new trial.</p>

<p>Action in equity by members of a membership corporation, illegally suspended, to restrain the controlling faction from using or disposing of the corporate property except as provided in the certificate of incorporation and from excluding the plaintiffs from the rooms and the meetings — Disciplinary action of such a corporation when valid —When a suspension and an expulsion are illegal — The rights of such a corporation are derived from its charter and not from the constitution it may adopt — Such a corporation when, organized to maintain a club for social and literary purposes cannot lawfully pledge its support to a political party or suspend or expel a member for withdrawing his support from that party — Unconstitutional interference with the right of suffrage — When the action will lie in equity — Inadequacy of the remedy at law.</p> <p>No disciplinary action taken by a membership corporation will be valid unless taken-as prescribed by its bylaws and the statutes governing its procedure.</p> <p>' A suspension of certain of its members attempted to be made at L a meeting of members, not called by a quorum of seven of them and upon notice to all members as required by the bylaws of the corporation, is not a meeting of the corporation and it can take no corporate action.</p> <p>A member of such a corporation entitled to rights of property or privileges therein cannot be expelled therefrom without being giyen notice of the charge preferred and an opportunity to be heard in his defense.</p> <p>The members of such a corporation derive their rights primarily from the charter or certificate of incorporation, the bylaws adopted in conformity therewith and the statutes regulating such a corporation, and any constitution subsequently adopted by the corporation — which constitution is merely part of the bylaws — must be consistent with the certificate of incorporation.</p> <p>A certificate, stating the objects of such a corporation to be the maintenance of a club for social and literary purposes, affords the corporation no authority or power to adopt a constitution, bylaws and rules, pledging the members always to support a certain political organization, not to belong to or support any other political party, declaring that any member expelled for treason to that political party should not be reinstated under any circumstances and that, in case of struggle, dispute or conspiracy in the ranks of the society, seven members abiding by the constitution of the political organization should be a sufficient number to constitute themselves the society and control its property — as these provisions are not consistent with the social and literary purposes for which the corporation was organized.</p> <p>Moreover, it is unreasonable that a member of a corporation incorporated for such purposes should be subject to expulsion because he does not hold a certain political faith; and, additionally, the object sought to be effected by these bylaws is contrary to section 1 of article I of the Constitution of the State' of New York, providing that “No member of this state shall be disfranchised, or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land, or the judgment of his peers.”</p> <p>Bylaws which compel a member to givé up, under penalty of expulsion, the free exercise of his right of suffrage, conflict with the above constitutional provision.</p> <p>Members of such a corporation, when illegally suspended for alleged disloyalty to the corporation in that they had withdrawn or threatened to withdraw their support from the political organization which the corporation was pledged to support, and when thereafter excluded from the club and its meetings, may maintain an action in equity against the members in possession and control to enjoin them, declare void their unauthorized acts, compel such administration of the corporate affairs as is orderly and prescribed and prevent a diversion of its assets to any purpose other than that for which the corporation was organized.</p> <p>The remedy at law, by an action against the individual defendants for damages or a mere direction to recognize the plaintiffs as members, would be inadequate.</p>

<p>Crimes — New York city — Disorderly conduct tending to a breach of the peace, under the Consolidation Act of 1882, § 1458, which is still in force in that city — Office of the writs of certiorari and habeas corpus — Prostitute — Punishment — Essentials of the magistrate’s jurisdiction.</p> <p>Neither a writ of habeas corpus nor one of certiorcu-i, upon a commitment in the nature of a final judgment, acts as a writ of review or of appeal and under neither writ is the evidence to be reviewed or errors committed on the trial corrected. The remedy to accomplish such a result is by appeal.</p> <p>The Supreme Court is confined, upon these writs, to a consideration of the question whether the magistrate had jurisdiction of the offense, of the person and to pronounce the judgment imposed.</p> <p>Sections 1458 and 1461 of the Consolidation Act of 1882 are still in force in' the city of New York, and under the second subdivision of section 1458 declaring guilty of disorderly conduct that tends to a breach of the peace every common prostitute or night walker-loitering or being in any thoroughfare or public place for the .purpose of prostitution or solicitation to the annoyance of the inhabitants or passersby, a police magistrate of said city has jurisdiction summarily to convict the offender, and, under sections 707 and 711 of the revised charter of the city of New York (L. 1901, eh. 466), compel her forthwith to give surety for her good behavior and, upon her failure to do so, commit her to the city prison, for transfer to or detention in the workhouse, for a period n’ot longer than six months.</p> <p>All that is essential to the jurisdiction of the magistrate is that the offender be arraigned before him, be apprised of the nature of the offense, with which she is charged and for which she is to be tried, be offered an opportunity to defend and be then duly tried on that charge.</p>

<p>Action upon a policy of fire insurance. Jury waived.</p>

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

<p>Motion for a further bill of particulars.</p>

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

<p>Assignment for benefit of creditors — Power of the Supreme Court to punish the assignee for contempt in disobeying a decree for the payment of money.</p> <p>The Supreme Court has concurrent jurisdiction with the County Court to exercise the power, conferred by L. 1894, ch. 134, of punishing for a contempt of court an assignee for the benefit of creditors who willfully neglects to obey a final decree for the payment of money, with a certified copy of which decree he has been previously personally served.</p>

<p>Calendar practice — When a case was not at issue when the plaintiff served a notice of trial — Service by publication.</p> <p>A defendant served by publication may, before the service is completed, appear and demand a copy of the complaint, if one has not been delivered to him personally, notwithstanding one was served on him by mail, and his time to answer runs from the time of the service of the complaint in compliance with such demand.</p> <p>Where service of the complaint is made after service of notice of trial by the plaintiff, the case is not at issue, the service of the notice is unauthorized and the case, where the plaintiff has put it on the calendar, must be stricken therefrom on the defendant’s motion.</p>

<p>Religious corporation —■ When the court will interfere in matters ecclesiastical — When the right to protect the temporalities of a Presbyterian church, which is subject to L. 1902, ch. 97, subds. 6 and 7, from the alleged unlawful control of persons no longer entitled to act as trustees, vests in the remaining trustees and not in those having the spiritual control of the church.</p> <p>The general rule as to the right of civil courts to interfere in ecclesiastical matters is that the right exists only where there are conflicting claims as to church property or funds, or their use, or where civil rights are involved.</p> <p>The ruling elders and members of the session of a Presbyterian church, the temporalities of which are managed by trustees elected by those qualified to vote (L. 1902, ch. 97, § 4, subds. 6 and 7) cannot maintain, in their own names and in that of the corporation, an action to enjoin certain defendant trustees of the church from acting as such upon the ground that they have been suspended by the session as communicants for contumacy of the session, where there are other trustees and the complaint, and affidavits on a motion for an injunction, do not show that the other trustees have refused to act, for, if it be assumed that the action of the session disqualified the' defendants from continuing to serve as trustees, it is the implied duty of the remaining trustees, in order to prevent any diversion of the corporate property, to see to it that no disqualified person shall act with them in regard to it.</p>

<p>Application by E. W. Cushman, to amend an order, made herein, 'on April 18, 1904, so that, in addition to the allowances therein made, an. allowance may be made to him, as attorney for Sarah M. Morgan, as costs for services and disbursements in the above-entitled matter, in such a sum as the court shall deem reasonable and just.</p>

Appeal by the defendant from a judgment of the City Court of the city of Yew York, entered in favor of the plaintiff upon the verdict of a jury, and from an order denying the defendant’s motion for a new trial.

Appeal by the defendant from an interlocutory judgment of the Oity Court of the city of Yew York, sustaining a demurrer interposed by the plaintiff to a defense set up in the answer.

Appeal by the defendants from a judgment of the City Court of the city of Hew York,. entered in favor of the plaintiff upon the verdict of a jury, and from an order denying the defendants’ motion for a new trial.

<p>Sale — When a warranty of quality does not survive acceptance.</p> <p>An acceptance by the vendee of personal property, manufactured under an executory contract of sale, after full and fair opportunity for inspection, estops him, in the absence of fraud, from thereafter raising an objection as to visible defects and imperfections, whether discovered or not, unless such delivery and acceptance are accompanied by some warranty of quality manifestly- intended to survive acceptance.</p>

<p>Calendar—Filing of note of issue before service of notice of trial.</p> <p>A case should not be stricken from the calendar merely because the attorney filed his note of issue before he served his notice of trial, where both acts were done by him on the same day, and this because the law does not often take account of fractions of a day.</p>

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

<p>Appeal by the plaintiff from an interlocutory judgment of the City Court of the city of New York, overruling the demurrer of the plaintiff to the amended answer to the amended complaint and to the counterclaim contained therein.</p>

<p>Tease — Construction — “ Conditional limitations ”.</p> <p>A lease stated that the tenant took, “ subject to the conditional limitations 'hereinafter stated ”, an apartment to be occupied as a strictly private dwelling apartment by his family of four persons, and not otherwise, that lie agreed that the occupation of the demised premises by himself and family and the character of the occupancy were an especial consideration for the granting of the lease, it further states that the landlord expressly reserved the right to terminate the lease on five days’ notice in writing of his intention to do sd and that upon the giving and expiration of the notice the term should end, anything before contained in the lease to the contrary notwithstanding, and this was followed by the words: “ this provision being intended by the parties hereto as a conditional limitation and to be so construed in all litigations and proceedings concerning it”.</p> <p>Held, that where no rent was due and unpaid the landlord could not arbitrarily terminate the lease on five days’ notice,' and this because the “ conditional limitations ”, subject to which the lease was accepted, restricted the tenant to use the premises as a strictly private, dwelling apartment for himself and family, and. his- right to remain. therein depended on a continuation of that situation — the right given the landlord to dispossess him on five days’ notice being in a ease where there had been a change in the occupation or character of the occupancy.</p> <p>“Limitation ” means restriction, and “ conditional ” has reference to a situation, state or external circumstance.</p>

Appeal by the plaintiff from an order, mad.e in the Municipal Court of the city of New York, discharging a levy made by a city marshal under an execution issued upon a judgment rendered in favor of the plaintiff.

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

Appeal by the plaintiff from three judgments in favor of the defendant, rendered in the Municipal Court of the city of New York, fourth district, borough of Manhattan.

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

<p>Summary proceedings — Defects in an instrument alleged to be a lease.</p> <p>If-1 a memorandum, -written on a card, signed by the landlord only, and reading “ New York, April 15, 1901. I hereby lease the stoop floor at 174 Orchard St. south side to Mr. Miller from 1901 to May 1st, 1905, for the sum of $17. per month” can be called a lease under the doctrine that one who has delivered a contract, subscribed by himself, is estopped from denying that it was well executed, the instrument is insufficient to support dispossession proceedings by the assignee of the landlord, for, being for a period exceeding three years, it would be a “ conveyance ” within section 240 of the Real Property Law, would require record under section 241 thereof and could not be recorded because -unacknowledged.</p>

<p>Appeal by the tenant from the final order of the Municipal Court of the city of Hew York, thirteenth district, borough of Manhattan, awarding possession of the premises to the landlords in summary proceedings for the tenant’s nonpayment of rent.</p>

Appeal taken by the plaintiff-appellant from a judgment rendered in the Municipal Court of the city of New York, sixth district, borough of Manhattan, dismissing the plaintiff’s complaint upon the defendant’s motion.

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

Proceeding to compel the delivery of books and papers to a public officer under section 2471a of the Code of Civil Procedure. Held: at which there were present, at the beginning thereof, the president and seventeen aldermen. At the beginning of this meeting the president declared the first business in order to be the election of a clerk.

<p>Negligence — Right of a farmer to clear his lands by the use of fire — When he has not been negligent and is not liable to a third person, whose property was burned because the fire caught on an intervening lot and was carried therefrom over to the lot of the third person —Recovery in such case predicated on the fire being the direct cause of the loss.</p> <p>It is lawful for the owner of farm land to use fire in clearing it and he need exercise only ordinary care to prevent the fire from injuring the property of another.</p> <p>Where a farmer, on and prior to tjhe middle of April and after considerable rains, sets fires in stumps on his lands plowed, to be plowed and to be planted to potatoes, and at the end of the month a gale of wind, suddenly arising, sweeps the fires on from the stumps to the adjoining lot of another person, and because that lot contains much dry material, the efforts of the farmer and others wholly to extinguish the fire on that lot, although assisted by a lull in the gale, are not wholly successful, and the fire, by a revival of the gale, is suddenly blown on a lot second removed and belonging to a third person and ignites his wood pile situated thereon, there is no evidence of negligence in the farmer sufficient to make him liable to the third person for the value of the wood burned.</p> <p>The third person must prove, to recover on such a state of facts that the farmer negligently set or maintained on his lands a fire and that it directly communicated the fire to the wood pile.</p>

Application by twenty-five freeholders of the town of Hadley, for an investigation into the financial affairs of the town. Hotion to continue before another justice.

Hearing on the return to writs of habeas corpus and certiorari to the sheriff of Suffolk County and George A. Buckingham, Justice of the Peace, respectively. The relator was arrested on a warrant issued by a Justice of the Peace on a charge of receiving stolen property, and committed to the county jail to await the action of the grand jury after an examination before the Justice.

<p>Attorney’s lien — Not recoverable of the adversary if his own client is solvent.</p> <p>Where the plaintiff in an action is solvent and able to pay his-attorney he cannot recover the amount of his agreed lien of the defendant.</p>

<p>Interpleader — Laches.</p> <p>Where judgment creditors of contractors with the city of New York — holding moneys earned of it by them — recover judgment in actions, brought against the city and certain assignees of the-fund to set aside an assignment of it made by the contractors and-have the fund applied on the creditors’ debts, and have not made a party defendant to their actions one whom they knew had an assignment of the fund prior to the assignment they sought to . set aside, they cannot defeat a subsequent action of interpleader, . brought by the city, declining to pay, against all the claimants to be permitted to pay the money into court and have the claimants litigate the matter among themselves, upon the ground that the city was guilty of laches in not pleading in their actions the claim of the prior assignee.</p>

<p>Action to recover arrears of salary.</p>

<p>Negligence — Measure of care due a bare licensee.</p> <p>A boy, who, while picking some tickets from the ruins of a building destroyed by fire, is hurt by the fall of a wall left standing there, is at best a bare licensee to whom the owner of the building owes no duty beyond that of .doing him no affirmative wrong or injury.</p> <p>Motion on the minutes to set aside a verdict for the plaintiff.</p>

<p>Proceedings brought under the Condemnation Law, to acquire certain parcels of real estate owned by the defendants in severalty. The property is in no way devoted to public uses, and the rights and interests of the respective owners are not in any way held in common. Some of the defendants made default; others appeared and consented that judgment for condemnation be taken; others appeared and objected to the jurisdiction of the court; and others made answer as provided by section 3365 of the Code of Civil Procedure. All of the answering defendants did not, appear by the same attorney, but the moving parties now before the court, although answering separately, except Grace Hawley and Mary J. Swartfiguer, who answered jointly, were represented by the same attorney. The issues formed by the pleadings were brought to trial before the court, pursuant to section 3367 of the Code of Civil Procedure, and the decision of the court, in writing, was made and filed under which judgment was entered in favor of the plaintiff against some of the defendants; and the petition dismissed as against others with costs, pursuant to section 3369 of the Code of Civil Procedure. The moving defendants each taxed a separate hill of costs. Upon retaxation, the clerk disallowed the same on the ground that only one hill of costs should have been allowed to them jointly. The defendants Lyon, Whitmyre, Jackson and De Graff each move separately, and the defendants Hawley and Swartfigure move jointly, to have such retaxation set aside, and the clerk directed to tax costs to each of them answering separately.</p>

<p>Application by Henry A. Houghton for an order modifying an order granting a writ of assistance directed to the sheriff to remove the defendant, and all parties claiming under him, from a farm located in Montgomery county. The applicant asks to have the order modified so as to exclude him from the operation thereof.</p> <p>Houghton is in possession under an agreement with the defendant by which he was to have possession of the farm and work it on shares. Subsequent to the making of this agreement, the defendant’s grantor, Houck, was adjudged incompetent and the plaintiff appointed committee of his ■person and property. The plaintiff thereupon brought this action to set aside the conveyance from his ward to the defendant. Rotice of Us pendens was filed December. 21, 1903. Prior to that time Houghton had received delivery of the keys of the premises and had removed certain of his ■chattels thereto and had performed considerable work thereon preparatory to the next season’s crop; and on the day upon which notice- of lis pendens was filed, moved inte the dwelling-house located upon the premises. In April following, an interlocutory judgment was entered in the-action setting aside the conveyance from the plaintiff’s ward to the defendant and requiring the defendant to account to a referee for his use of the premises and property and for the expenditures made by him in respect thereto. A copy of such interlocutory judgment was served uponHoughton and a demand made for the delivery of possession, which was refused, and thereupon the order directing. the writ of assistance to issue was granted. The sheriff being about to remove Houghton from the premises, the latter obtained a stay of proceedings and made this application, to modify the order so as to exempt him from its provisions.. He was not made a party to the action.</p>

<p>Motion by plaintiff to continue an injunction pendente</p>

<p>Action for a dissolution of a partnership, etc.— Complaint — When the plaintiff must prove affirmatively that the parties intended to' and did form a partnership — A complaint under which proof of a joint adventure would be insufficient — When participation in firm profits does not make one a partner.'</p> <p>Under a complaint, in an action brought for the dissolution of a partnership and for the appointment of a receiver of its property and for an accounting, alleging that on a certain date the plaintiff and the defendant entered into a partnership to carry on certain city contracts the- defendant had secured, that since that date they as partners had undertaken and agreed to perform some of the contracts, had completed some and partially completed others and earned profits, and that the defendant withholds the plaintiff’s agreed share of one-half of the net profits besides denying him access to the firm books as well as an account of its business, the plaintiff must fail unless he proves affirmatively that the parties intended and agreed to enter into a partnership inter sese.</p> <p>Under such pleadings the establishment of a joint adventure would be insufficient.</p> <p>Mere participation in firm profits as a means of compensation, without liability for firm losses, does not make a partner in the firm one receiving such compensation, and if entitled thereto as employee he cannot obtain it in such an action as the above.</p>

Application by petitioner, a stockholder of the New York Building Loan Banking Co., asking that the receiver of the above-named company be required to pay him the difference between the amount paid in by him and the amount paid out by the company with interest, and in the event of the rejection of the method above refered to, he asks the court to direct the receiver to pay .him $3,974.27 with interest thereon from the date of the appointment of said receiver, reserving…

<p>Libel — Answer of a publisher of a libelous article charging the plaintiff, president of a life insurance company, with knowingly swearing to a false report of its total income — The defendant can set forth no more of the article than the plaintiff seeks to recover upon but he may be given leave to amend his answer, deny he published the article as the plaintiff alleges he did, and deny that it, as shown in the complaint, is complete — Repetitions of former allegations and denials of an answer are improper — When irrelevant matter stricken out of an answer is available in mitigation of damages — That the plaintiff has failed in other suits for libel is immaterial—Matters competent in mitigation of damages.</p> <p>Where a plaintiff sues one for damages, for publishing in his monthly magazine, of and concerning the plaintiff, an article virtually charging him with perjury in putting, in reports of the total income of the company for 1900, verified as correct by him as president, as published by the insurance departments of Connecticut, Wisconsin, New York and Massachusetts, the company’s income, as reported to Connecticut, at a figure which he knew to be false, the defendant cannot allege in his answer the whole article nor any more of it than the part on which the plaintiff seeks to recover, but may, by copy annexed, set .up the article he published, deny he published the article alleged by the plaintiff, and allege that it as published by the latter is complete.</p> <p>Repetitions of allegations and denials, contained in former paragraphs of the answer, must be stricken from subsequent ones as unnecessary. '</p> <p>As it is not necessary for the defendant to prove the truth of any portions of the article not pleaded by the plaintiff, matter relevant to those portions, upon being stricken out, must be stricken from the answer, hut the same matter may he allowed as a part of a second and partial defense in mitigation of damages.</p> <p>Allegations of the answer, that other publishers of publications have been unsuccessfully sued for libel by the plaintiff, are immaterial.</p> <p>Allegations of the answer, that statements of the company, as contained in the above mentioned state insurance department reports, show its assets as decreasing, its liabilities as increasing, death claims as delayed in payment, and complaints from members as to the management, and further allegations that the defendant had received many letters from dissatisfied members calling for redress and a better management — all pleaded as separate or partial defenses and in mitigation of damages and alleged to be matters within the plaintiff’s knowledge — are competent in mitigation of. damages and on the question of malice.</p> <p>Matters set up in mitigation will not be stricken out as irrelevant and redundant if the court has the slightest doubt as to its admissibility.</p> <p>Allegations of the answer, that the defendant'has examined certain hooks purporting to contain the report of the company and that he found the questions as to income and “ disbursements " differently answered in different reports for the same year, are admissible for the same' reasons, and this although the plaintiff is, by the article in question, charged only with swearing falsely as to reports relative to income.</p> <p>An allegation of the answer, that the defendant knew tlie company had been excluded from doing business in Minnesota and other States, is immaterial where there is no proof that the exclusion, if any, had any relation to the libelous charge made by the plaintiff.</p>

<p>Motion to vacate a warrant of attachment.</p>

<p>Motion to vacate a warrant of attachment.</p>

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

<p>Motion to strike cause from Special Term Calendar.</p>

<p>Trust for life — Interest acquired by a trustee upon a purchase of' stock in a bank — Rights of one, claiming under the life tenant, in a fund the trustee received upon the bank’s liquidation of its-affairs and redemption of its stock.</p> <p>Where a trustee, appointed by the court under a testamentary trust created by a testator in 1857 to sell his real estate, invest, and reinvest the proceeds in bank stock and pay one (still living) of his three daughters one-third of the dividends, income and1 profits during her life — with directions as to the disposal of theprineipal of her share upon her death — purchases in 1884, stock in a domestic bank, he thereby acquires in all its assets — whether-called capital, surplus or undivided profits—-as they were in 1884,. an interest commensurate with his shares; and where, through a. subsequent trustee, the life interest of the life tenant in the stock,, its dividends and profits, is acquired by a foreign bank and thereafter and in 1903 the trustee, upon the domestic bank’s liquidating its affairs and retiring and redeeming its stock, receives a fund.' representing his interest as trustee in the capital, surplus and undivided profits, the foreign bank is not, when the fund becomes-available for distribution, entitled to the whole of it but only pro rata to the undivided profits earned between 1884 and 190S- and, in addition, to the income of the remainder of the fund while? the life tenant lives.</p>

<p>Motiobt for alimony and counsel fees in an action to annul a marriage.</p>

<p>Appeal from a judgment of a justice’s court certified to this court.</p>

<p>Action upon a promissory note. Motions to set aside a verdict and for a new trial.</p>

<p>Appeal from a judgment recovered by plaintiff against defendant before J. P. Gubbins, a justice of the peace of the city of Rome, on the 26th day of August, 1903.</p>

<p>Appeal from a judgment recovered by the plaintiff against the defendant, November 12, 1903.</p>

<p>City of Hornellsville — Its justice’s court is not an “ inferior local court ”, as defined in the Constitution—Its jurisdiction.</p> <p>Section 12, added to title six of the charter of the city of Hornellsville (L. 1888, ch. 40) by L. 1889, ch. 125, providing,that its justices shall have the same jurisdiction as justices of the peace of the several towns of the State and where either or both of the parties reside in any of the towns of Steuben county adjoining the town of Hornellsville, is a valid enactment under section 18 of article VI of the State Constitution, as amended in 1869 — in force when the charter of Hornellsville was enacted — authorizing justices of the peace to be elected in the different cities of the State in such manner and with such powers and for such terms, respectively, as shall be provided by law.</p> <p>Service of a summons on a defendant residing in a town adjoining the town of Hornellsville — out of which the city was erected — in that adjoining, town, confers jurisdiction upon the justice of the peace of the justice’s - court of the said city therein residing who issued the summons.</p> <p>The said justice’s court is not an “ inferior local court ” within the meaning of section 18 of article VI of the State Constitution.</p>

<p>Local bill amendatory of a prior act — What matters constitute limitations of the extent to which the body of the amending act may amend the prior statute — The. subject must be expressed in the title — When water bonds violate the Constitution, Art. VIII, § io. . -</p> <p>Where a local bill — the primary purpose of which as • stated! first in its title, is to amend a prior act relative to the government of a city, create a municipal improvement commission and! define its duties and power — states, in the second and third portions of its title, matters germane to the said primary purpose, the amendment of the prior act, these matters constitute specifications of the particulars in which the prior act is proposed to be amended, and limit the extent to which the body of the amending act may amend the prior statute.</p> <p>Where, in addition to the matters thus specifically set forth in the title of the amending act, its body contains a provision changing the personnel of the commission — a purpose nowhere set forth in the title of the amending act — so much of it as makes this change is void because it violates the constitutional requirement, article III, section 16, that the subject of a local bill must be expressed in its title.</p> <p>Where the act authorizes the city to issue, for a proposed increased city water supply, bonds, running more than twenty years, which, taken with outstanding city and water bonds, will exceed-ten per cent, of the assessed valuation of the city, and the act does not require the city to establish a sinking fund to redeem these water bonds at maturity, so much of the act as authorizes this issue is void as violative of section 10 of article VIII ef the State Constitution.</p>

<p>Lease — Considered recorded from time of delivery .to clerk.</p> <p>A lease, duly acknowledged and delivered for record to the proper county clerk, is, by virtue' of L. 1896, eh. 547, § 266, to be considered recorded from the time of delivery, entitled thereafter to the protection of the Recording Act, and a bona fide purchaser, on a sale in foreclosure under a mortgage subsequently given by the owner of the fee to a third party for value, takes subject to the lease and is chargeable with knowledge of its existence, although the clerk never recorded it.</p>

<p>Pleading — Allegations of complaint, when frivolous—Payment.</p> <p>Where allegations of the complaint of the endorsee of promissory notes in an action brought upon them against the maker, that ■ the payee endorsed and delivered them to the plaintiff and that the latter ever since has been and now is their owner and holder, are not denied by denials that the notes were “ transferred or delivered by the lawful or other holder to the plaintiff ” or that the the plaintiff “is the lawful owner or holder of said notes,” are frivolous.</p> <p>Payment is an affirmative defence which cannot be raised by a denial.</p>

<p>Inexcusable conduct of the police.</p> <p>A descent upon rooms — where the accused were merely collecting by telegraph and telephone news as to the horse races — made by an inspector of police, a captain thereof, and twenty policemen, who arrested twenty-one employees of the place, took them to the police station and held them there over night and carried there all the electrical instruments, books and papers in the place, is, where the police had not seen the prisoners do-any criminal act and could not prove before the committing magistrate their commission of any such act, an inexcusable violation of the inherent and constitutional rights of liberty and property.</p>

<p>Guaranty — “Payment on delivery.’’</p> <p>A guaranty of payment by the vendee of the price of castings-to be manufactured by the vendor “as per contract,” deliverable in fifty lots on fifty consecutive days, is only a guaranty of the price of castings actually delivered, and,- for a breach of the contract, consisting in the vendee’s, refusal to accept castings manufactured and shipped to him-, the vendor cannot recover under the guaranty.</p> <p>In view of the vendee’s right to ascertain by inspection before acceptance whether the castings tendered correspond with those agreed to he manufactured, the covenant of “ payment on delivery” is not violated by a stipulation, made between the parties to the contract after it and the guaranty had been executed, that the castings should he shipped to the vendee with the bill, that he should cheek them off, and then send a check for them to the vendee.</p>

<p>Local option — Duty of town clerk to post printed notices — Adding fifth question — Soldier in a Soldiers’' Home, when kept in an “ asylum ” — Does not lose his former residence — Grounds for resubmission.</p> <p>A submission at a biennial town meeting of the local option questions is void where the town clerk fails to post in four public places in the town printed notices of the meeting, at the time and in the form and manner required by the Liquor Tax Law, but that law does not require him to exhibit at his office the sign and board-space below it, prescribed by the Town Law (L. 1890, ch. 569, § 86) or to post the notice on the board-space.</p> <p>' His adding, to. the four printed statutory questions, a fifth printed question as to whether the town labor system of taxation for working its highways should be changed to - a money system, is a circumstance favoring ordering a resubmission, as such a provision on the ballot may have tended to mislead and confuse the electors.</p> <p>A soldier, kept in a Soldiers’ Home maintained in the town . by the State, is, within section 3 of article II of the State Constitution, a person kept in an “ asylum ”, and, under that section, does not, when becoming an inmate of the Home for the sole purpose of enjoying its benefits, thereby gain or- lose. his former residence, it remaining his domicile for citizenship.</p> <p>When the general election in the State and the biennial meeting of the town are held on the same day, he cannot, under section 12 of the Town Law, vote for town officers unless he could have voted at - the general election, and where, although unregistered, he is permitted to vote on the local option questions, his illegal vote is a circumstance favoring ordering a resubmission, where his vote may have changed the result. ■</p> <p>That eight-tenths of the taxpayers and business men of the town petition for a resubmission upon the ground that the result of the vote on the local option questions — confining the sale of liquor to pharmacists on a physician’s prescription — has proved injurious to general prosperity and business in the town, is a further circumstance favoring ordering a resubmission.</p>

<p>City assessment roll—Failure to° describe at all when not cured — County Treasurer’s deed.</p> <p>Where a description of ten city lots, as contained in the city assessment roll, does not describe any property belonging to a person assessed thereon and therefor, the assessors have no jurisdiction to lay the assessment; and where, after confirmation, the city sells for non-payment of taxes, and buys in, it acquires thereby no tax lien enforcible against the owner or his grantee.</p> <p>The assessment being void, a subsequently passed local statute, validating prior city taxes notwithstanding any omission or error in the proceedings, etc., or in the assessment as made, cannot cure the defect.</p> <p>A county treasurer’s deed — resulting from a failure to pay county taxes and a foreclosure had on that lieh — when containing a description of the ten lots different from, that in the roll, passes no. title to the purchaser and the owner of the land is not estopped from showing that deed to be void.</p>

<p>Action in equity.' Motion for an order appointing a receiver of the property of defendant Elias, and for an injunction pending the action restraining her from in any manner interfering with or disposing of any of her real and-personal property and restraining the defendant banks and trust companies from paying to her or to any one on her behalf any money on deposit with any of them to her credit.</p>

Motion by judgment debtor to set aside an order directing; that an execution issue against his wages, under section 1391 of the Code of Civil Procedure, as amended September 1,, 1903.

<p>Jurisdiction of a foreign action when not taken by the Supreme Court.</p> <p>Although, by service of the summons on the defendants and their appearance in court, the Supreme Court of the State of Hew York acquires jurisdiction of an action brought in that court by a stockholder of the Mexican Sugar Company, a Hew Jersey corporation, to restrain it and the Mexican Sugar Refining Company, a Louisiana corporation, from attempting to cancel a lease, of a sugar plantation, situate in the Republic of Mexico, held by the Mexican Sugar Company by mesne assignment under the Mexican Sugar Refining Company, from taking advantage of any real or pretended cancellation of the lease and from entering or possessing itself of the plantation otherwise than under the lease and to restrain the Mexican Sugar Company from assisting or eo-operating in any way in such cancellation or asserting rights in the plantation otherwise than under the lease, yet where the only property owned by either defendant is located in the Republic of Mexico, the court, both because its mandate if issued would not be enforcible and because the dispute concerns only the internal affairs and management of the defendants, will not take jurisdiction of the action and especially where the plaintiffs have commenced another action in a Federal Court, against the said Mexican Sugar Company, in which they seek the appointment of a receiver.</p>

Motion to confirm the appointment of William J. McCormick to execute any trust which may have been left unexecuted by Shepherd F. Knapp, as receiver or as trustee for the benefit of the Bowling Green Savings Bank of the city of New York.

<p>Attachment — Attorney when personally liable to sheriff.</p> <p>Where the defendant’s attorney procures, upon a counterclaim of his client, an attachment against the plaintiff’s property and has the sheriff levy- thereunder on a debt due the plaintiff and the debtor gives the sheriff a certificate of the indebtedness and the -attachment is subsequently vacated upon the ground that the papers upon which it was granted were insufficient in law to justify its issue, the attorney is personally liable to the sheriff for his pounage as fixed in his county by law.</p>

<p>New York City — Revocation of theatre license — “New York Sabbath Committee.”</p> <p>Where no more information as to the corporate powers of the “ New York Sabbath Committee ” is afforded on a motion made by the committee, under section 1476 of the charter of the city of New York, to revoke a license granted by the city to a city theatre, because of an alleged violation of the provisions of title 2 of chapter 22 of that charter, than the fact that the committee is a domestic corporation, the application must he denied as there is nothing to show that the act is within the corporate powers of the committee.</p>

<p>Bill of particulars.</p> <p>When the plaintiff serves an insufficient bill of particulars, the defendant need not move for a new bill, but may return the one served with a notice endorsed thereon that it is insufficient and wherein insufficient.</p>

<p>Surplus moneys.</p> <p>Where a new claim for surplus moneys is filed between the time of the application for the reference and that of the entry of the order, the claimant must, under Rule 64 of the General Rules of Practice, have notice, nunc pro 'tunc, of the application for a reference before the justice can sign the order.</p>

<p>License or permission cannot give an adverse right — Rights above the surface of a street.</p> <p>An adverse right of easement cannot grow out of a mere license or permissive enjoyment.</p> <p>The public occupy the surface of a street and to its use as a street the rights of abutting lots are subservient, but, above the surface, there can be no lawful obstruction to the access of light and air to the injury of an adjoining owner. The-existence of such an obstruction — without his consent — gives him a right of action against the individual obstructing.</p>

<p>Highway — Liability of adjoining towns, divided by a stream, for the cost of constructing a bridge over the same — It exists whether the stream runs along or traverses the dividing line.</p> <p>Section 130 of the Highway Law provides, “ The towns of this state, except as otherwise herein provided, shall be liable to pay the expenses for the_ construction and repair of its public free bridges, constructed over streams or other water within their bounds, and their just and equitable share of such expenses when so constructed over streams or other waters upon their boundaries * * * and when such bridges are constructed over streams or other waters forming the boundary line of towns, either in the same or adjoining counties, such towns shall be jointly liable to pay such expenses.”</p> <p>Section 134 of the Highway Law provides, “ Whenever any two or more towns shall be liable to make or maintain any bridge or bridges, the same shall be built and maintained at the joint expense of such towns, without reference to town lines.”</p> <p>Section 136 of the Highway Law provides, “ Whenever any adjoining towns shall be liable to make or maintain any bridge over any streams dividing such towns, whether in the same or different counties, three freeholders in either of such towns may, by petition signed by them, apply to the commissioners of highways in each of such towns, to build, rebuild or repair such bridge, and if such commissioners refuse to build, rebuild or repair such bridge within a reasonable time, either for want of funds or any other cause, such freeholders, upon affidavit and notice of motion, a copy of which shall be served on each of the commissioners, at least eight days before the hearing, may apply to the supreme court at a special term thereof.”</p> <p>Held that the term “ streams dividing such towns,” used in section 136 was intended to be synonymous with the term “ streams upon their boundaries,” used in section 130, and that the remedy afforded by section 136 extended to all cases in which liability was - imposed by section 130.</p> <p>That section 136 applies to a case where the stream does not run along the line dividing adjoining towns, but traverses such line.</p>

<p>Consideration.</p> <p>A deed, delivered in escrow to the grantor’s agent, to he delivered by him to the grantee if the grantor got drunk again, is void for lack of a consideration both for the delivery and for the deed.</p>

<p>Justice’s court — Duty of the justice to try the case.</p> <p>That, in an action in justice’s court, the defendant, by affidavits presented and read on the return of the summons, charged, and the justice denied that he, on the trial before him of a former action, said, in court, that he would not believe the defendant or his counsel under oath, affords the justice no right or reason to dismiss the action with costs against the plaintiff.</p>

<p>.Justice’s court — Jurisdiction, when lost.</p> <p>By the adjournment of an action, in justice’s court, for more than eight days (made after joinder of issue and one adjournment by consent) against the defendant’s objection, the justice loses, jurisdiction which is not restored by the defendant’s subsequent participation in the trial.</p>

<p>Appeal from a judgment, rendered in a justice’s court of Herkimer county, in favor of the plaintiff and against the appellant for $120.15 damages and costs.</p>

<p>Appeal from a judgment of the Municipal Court of the city of Syracuse in favor of the plaintiff for $800 damages .and $48.95 costs.</p> <p>The trial was had before one of the judges of that court without a jury.</p>

<p>Motion for a nonsuit; on which the decision was reserved until after verdict pursuant to section 1187 of the Code of Civil Procedure.</p>

<p>Elections — Inspectors of.</p> <p>In determining what ballots shall he counted for or against any candidate — or wholly rejected — as well as any question voted on, inspectors of election, act judicially and cannot be required by a common-law mandamus to decide in a particular manner.</p>

<p>Motion for nonsuit, decision on which was reserved until after the verdict of the jury pursuant to section 1187 of the Code of Civil Procedure.</p>

<p>Bill of sale given for the vendor’s future support—Failure to renew a chattel mortgage — Who cannot take advantage thereof — Meaning of the term “ creditor ” as used in the Lien Law.</p> <p>A bill of sale, the consideration of which is the support and maintenance, of the vendor during the remainder of his life, is void as to his creditors under section 23 of the Personal Property Law.</p> <p>The failure to file in due time a renewal of a chattel mortgage does not render such mortgage void as against a subsequent chattel mortgagee who had actual notice of the existence of the prior mortgage.</p> <p>A person not having a judgment and execution is not a “ creditor ” within the meaning of sections 90 and 95 of the Lien Law.</p>

<p>Unincorporated association — Removal of member.</p> <p>Where a person’s election to office came from an unincorporated association itself, his removal therefrom can be accomplished only by the association.</p> <p>A person cannot restrain officers of an association where he has not been recognized by it.</p>

Cause resubmitted to the court, without a jury, by stipulation dated January 22, 1904. Action by the payee of a promissory note against the joint and several makers thereof, the defenses being usury and payment. A counterclaim also was interposed by the defendants for the rents, issues and profits of certain lands at Albuquerque, H. M., mortgaged to secure the payment of the note, the plaintiff being alleged to be a mortgagee in possession. . i - -

Motion by plaintiff for an order to show cause why defendants should not be punished for contempt of court in willfully violating an injunction order granted in this action, March 21, 1904.

Action to recover personal taxes assessed against the defendant for the year 1901. Motion under Laws 1904, chap. 624, amending section 934, Greater New York Charter, for an order dismissing the action.

<p>Inspection of the books of a foreign corporation — The' New York . courts cannot compel it — The remedy is in the State in. which the corporation was formed — Effect of the books being out of such State. .</p> <p>The courts of the State of New York have not jurisdiction to grant,' upon an application by a stockholder of a foreign corporation, a writ of mandamus to compel an inspection by him • of the books and records of such corporation. ■ '</p> <p>Such inspection is enforcible only by the courts of the State in which the corporation has its legal existence, and if the books are not within that State the corporation may be compelled to bring them therein.</p>

<p>Motion to cancel a judgment pursuant to section 1268 of the Code of Civil Procedure.</p>

<p>Stenographer of the commission created by chapter 537 of the Laws-of 1893 — He is not entitled to compensation for a period during which the commission was temporarily out of existence.</p> <p>Where the members of the commission created by chapter 537' of the Laws of 1893 and continued by the amendments thereof made by chapter 567 of the Laws of 1894 and chapter 729 of the Laws of 1900 and by the provisions of various court orders subsequent to the latter date resign in September, 1902, after their work had apparently been completed, the fact that the commission is revived in 1904 does not entitle the official stenographer of the commission who at the time the former commissioners resigned was serving “ during the pleasure of the commission ” at a salary of $3,000 per annum, to compensation for the period duringwhieh there were not any commissioners in office, and consequently no duties to be performed.</p>

Motion made by the sheriff of New York county for an order to' tax his poundage and directing the payment thereof by the defendant’s attorney.

<p>Civil war veterans — They are, hy Laws of 1904, chap. 637, excepted from the general rule that a city official illegally removed cannot recover the salary paid to his successor before the city had knowledge that the removal was illegal — Such statute is not unconstitutional.</p> <p>The general rule is that where a city official has been illegally removed and another person has been appointed in his stead, payment of the salary incident to the office to the de facto incumbent,, prior to the receipt by the city of notice of the illegality of the removal, furnishes a complete defense to a claim for such salary on the part of the officer illegally removed.</p> <p>Veterans of the War of the Rebellion have been excepted from the operation of this rule of law by chapter 637 of the Laws of 1904 which provides that a veteran of the War of the Rebellion unlawfully removed from any position held by him by appointment or employment in the State of New York, or in the several cities thereof,- and who shall have been restored to such position or employment by a peremptory writ of mandamus as authorized by section 21 of the Civil Service Law “ shall receive from said state or the city, county, town or village thereof under which said position or employment- was held by him, the same compensation therefor from the date of such unlawful removal to* the date of his said restoration to said position-or employment which he would have been entitled by law to have received in such position or employment but for such unlawful removal.”</p> <p>The said statute does not contravene section 10 of article VIII of the Constitution of the State of New York, which prohibits the giving of any money or property of a city to -or in aid of an individual; nor does the statute violate section 9 of article V of the said Constitution, providing for appointments and promotions in the civil service of the State and all the civil divisions thereof, in that the statute relates to compensation and not to appointment or promotion and, therefore, is not authorized by the Constitution.</p>

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

<p>Elevated railroad in New York city — Respective rights of the city and of the railroad company in the street—Expense of underpinning the elevated structure made necessary by the building of a public comfort station — It must be borne by the railroad company, at least in the first instance — Injunctive relief denied.</p> <p>A corporation operating an elevated railroad in a public street in the city of New York acquires under its charter a right somewhat in the nature of an easement for the support of its columns and' structure, but does not own the fee of any part of the street, and has no exclusive right to the use and occupancy thereof.</p> <p>The city still has the right to make use of the street for proper and authorized urban purposes and is not obliged to consult the-mere convenience of the railroad company, or to study to save it from expense to the detriment of the public; the most that the-railroad company can insist on is that its structure shall not be-unreasonably interfered with.</p> <p>Where pursuant to authority conferred by its charter the city, through a contractor, is constructing a “ public comfort station in the street, the building of which renders it necessary to underpin, at an expense not exceeding $2,000, three of the pillars of the-elevated structure in order to secure the safety of that structure,, the railroad company in the event of the refusal of the contractor to allow it to perform the work of underpinning at the expense of the contractor is not entitled to an injunction to restrain the building of the public comfort station.</p> <p>Semble, that in such a case the railroad must protect its structure at its own expense.</p> <p>In any event it must do so in the first instance and then, if it is-ultimately decided that the expense should be borne by the city or by the contractor, it has an adequate remedy at law against them.</p>

<p>Motion for a new trial on newly-discovered evidence — What the moving party must show — When a new trial will be ordered — An in- ° fant’s rights not prejudiced by his guardian’s lack of' diligence — Abolition of the rule respecting 'cumulative evidence — Definition of impeaching evidence.</p> <p>On a motion for a new trial on the ground of newly-discovered evidence, it is necessary that the moving party show that the newly-discovered evidence will probably change the result of the previous trial, that it was discovered by him since such trial and could not have been discovered by the exercise of due diligence before the trial and that it is material to the issue.</p> <p>If, by reason of such newly-discovered evidence, a different outcome is probable and the jury can fairly reach another conclusion, the court is justified in the exercise of its legal discretion in ordering a new trial.</p> <p>Where the moving party is an infant of tender years it is the duty of the court to protect and guard the rights of such infant, and the failure of the guardian to prepare his ward’s case for trial will not be permitted to defeat the substantial rights of the infant.</p> <p>The rule which formerly obtained that a motion for a new trial on the ground of newly-discovered evidence will be denied where such evidence was cumulative has been abolished. The proper inquiry is whether the newly-discovered evidence, whether cumulative or not, is of such' a character that it is likely to produce a different result on a new trial.</p> <p>Evidence impeaches a witness when it assails his general credibility or otherwise weakens the force of his testimony and detracts from the weight to be given to it, without having of itself probative value as original evidence upon the matter at issue.</p>

The relator, Adams, was convicted of the crime of “policy possession,” in violation of section 344a of the Penal .Code, at a Criminal Term of the Supreme Court, in the county of Hew York, held by Scott, J., in April, 1903. Upon April 11, 1903, he was sentenced to pay a fine of $1,000 andto imprisonment for not less than one year nor more than one year and nine month's in a State prison.

<p>Arbitrator — His determination is binding in the absence of fraud or mistake — Errors of law or of fact do not affect the award—< Failure of the arbitrator to determine a matter left to him — Am architect may determine whether a contract has been completed without taking testimony — Effect of one part of a several award being void — Action on a contract containing an arbitration clause.</p> <p>Where parties have selected an arbitrator who is to determine the questions that arise during the performance of a contract entered into by them and upon whose certificate payments are to be made and it is provided in the contract that the determination of such arbitrator is to be binding upon the parties thereto, his determination is a condition precedent to the right of either party to recover under the contract, and, in the absence of fraud or palpable mistake, his certificate is final.</p> <p>In the absence of proof of corruption, bad faith or misconduct on the part of the arbitrator or palpable mistake appearing on the face of the award, neither party will be allowed to prove that the arbitrator decided wrongly as to the law or the facts.</p> <p>Where no adjudication has been made by the arbitrator upon a matter left to his determination, the matter will not be passed upon by the courts, in the absence of proof of unreasonableness or fraud on the part of the arbitrator.</p> <p>In reaching a determination as to whether a binding contract has been completed, the owner’s architect, who by the terms of the contract has been made the arbitrator between the parties, is not obliged to take the testimony of witnesses.</p> <p>Where the award or certificate of an arbitrator is several, and a part of it is void, if that part is not so connected with the rest of it as to affect the justice of the ease, the award is void only pro tanio.</p> <p>■ A provision for arbitration contained in a contract is not a defense to an action brought on the contract, where no demand or request for arbitration was made until the trial.</p>

<p>Judgment in personam and judgment in rem — Personal service or an appearance is necessary in the first and constructive service is sufficient in the second — A summons will not justify a judgment by default in favor of one not named therein — Recitals as to appearance by an attorney — Proof as to his authority.</p> <p>A judgment in personam cannot be rendered without personal service of notice upon the defendant or his voluntary appearance.</p> <p>A judgment in rem, however, may, where the res is present within the jurisdiction, be rendered without any other notice to the defendant than such constructive service of process as the local law may prescribe.</p> <p>A summons giving notice of a definite claim asserted by a designated plaintiff will not support the rendition against the defendant, who did not appear, of a judgment in personam upon an additional claim in favor of another person not named therein.</p> <p>A recital in a judgment that the judgment debtor appeared by a certain attorney is conclusive as to the fact of the attorney’s appearance, but the question of the attorney’s authority to make the appearance is open to proof on behalf of the judgment debtor wherever an attempt is made to enforce the judgment.</p>

<p>Action by plaintiff, a corporation, to set aside as invalid an issue of stock to defendant and a demand that' defendant retransfer and return the stock to its treasury.</p>

<p>Corporation — Action by a stockholder to compel a director to account for his dealings in its stocks, etc.— A demand upon, and refusal of,, the directors that they sue must be alleged — The fact that a. director elects does not show that he controls the board.</p> <p>- A stockholder of a corporation cannot maintain an action on. behalf of himself and of all other stockholders of the corporation-to compel a director of the corporation to render an accounting with respect to all his dealings in relation to the stocks, funds,, property and assets of the corporation, where he does not allege and prove a demand upon and a refusal by the directors of the corporation to bring the action, or that a majority of the directors of the corporation are themselves guilty of such fraud and misconduct as would make such a demand- unavailing.</p> <p>It does not follow that the defendant director controls the conduct of the board of directors, even though such board was elected through his controlling vote.</p>

<p>Motion for a mandamus.</p>

Action to set aside and declare invalid certain portions of a last will and testament. Motion under section 545 of the Code of Civil Procedure to strike out several paragraphs of the complaint.

<p>Action of replevin. Motion for interpleader.</p>

<p>Motion for a reference of the issues under section 1013 of the Code of Civil Procedure on the ground that the trial of the issues will require the examination of a long account.</p>

<p>Action for divorce — What must be shown in support of. a confession made by the guilty party — Proof required of defendant’s default outside of an entry thereof in the register of the plaintiff’s attorney.</p> <p>To justify the court in awarding a judgment of absolute divorce upon the confession of the party charged with adultery, the circumstances attending such confession must be shown to be of a character that precludes all suspicion of collusion and as a general rule such confession should be corroborated by other proof.</p> <p>In such a case, a witness sworn to establish that the defendant made default in pleading should be shown to have more definite knowledge of the default than that derived from a mere inspection of the register of the plaintiff’s former attorney of record.</p>

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

<p>Appeal from a judgment rendered in Justice’s Court, October 10, 1903, in favor of plaintiff and against defendant for the sum of twenty dollars damages and seven dollars and thirty-five cents costs.</p>

<p>Appeal by the defendant from a judgment in favor of the plaintiff. Action to foreclose a mechanic’s lien.</p>