Volume 45 — New York Supplement

Applications by Bernard Moses and Emily A. Marcus to direct Morris T. Moses and James T. Franklin, as receivers of Lesser Bros., a firm composed of Tobias Lesser, Isaac Lesser, and Simon Lesser, to apply funds in their hands as receivers to the payment of petitioners’ judgments against said Lesser Bros. Said receivers were appointed in an action brought by Tobias Lesser and Isaac Lesser against Simon Lesser to dissolve the firm.

<p>Insurance—Insolvency—Value op Policy.</p> <p>The value of a policy becomes fixed at the commencement of insolvency proceedings which result in a judgment of dissolution, and is not increased by the death of the insured after that time, and after the expiration of the ^period for which the last premium was paid.</p> <p>Thomas Miller was insured in the Commercial Alliance Life Insurance Company under two policies for $5,000 each, known as “yearly renewable term policies,” on which the premiums were payable bimonthly. The two policies were issued on July 25, 1890,—one in favor of Marion M. Miller, a daughter of the insured, and the other in favor of Helen Miller, also a daughter. The premiums on the policies were paid from time to time,—the last on October 1, 1894, being the premiums due on that day for two months in advance. On October 13, 1894, the said company having become insolvent, this action was begun to procure a judgment dissolving the corporation, and for the appointment of a receiver. An order was subsequently entered, on October 30, 1894, appointing a temporary receiver. On January 10, 1895, final judgment was entered dissolving the corporation and appointing a permanent receiver. Thereafter, and on January 15, 1895, Thomas Miller died. The claimant insisted before the referee that the value of the Miller policies should be based on the fact of the death of the insured, although the death occurred after the period for which premiums had been paid, and after the final dissolution of the corporation. The referee refused to compute the claim on this basis, and found that “no rights could be subsequently acquired by any creditor of said company that would entitle him to a larger proportion of the assets of the company than he was entitled to at said date, and that, as a consequence, no claim based upon a death occurring after said date is valid as against said company or its assets; that the claims so made herein under said policies for losses alleged to have "accrued thereunder, respectively, by reason of the death ■of said Thomas Miller, are invalid and should not be allowed; that the rights and interests of the holders of said policies, respectively, on the 13th day of October, 1894, consisted solely of an interest in the assets of said company to the extent of the value of said policies, respectively, at said date; that such value consisted of the value of the unexpired part of the insurance under said policies, arising from such payment of the premiums thereon, respectively, on the 1st day of October, 1894.” The claimant filed exceptions to the report, which were overruled at special term, and now appeals from that part of the order affecting him.</p>

<p>Highways—Action to Remove Obstruction—Pleading.</p> <p>A complaint to compel defendant to remove fences from premises, described as “Summit Avenue and Cross Street” alleged that a map showing such streets had been filed, that the lands shown on said map as fronting on Summit avenue mid Cross street were formerly owned by M. and W. in. common, and that M. and W. conveyed some of such lands to divers persons, with all their right, title, and interest in and to the land forming the streets and avenues adjoining and in front of said lot. The complaint did not allege that such streets were highways, or that M. and W. owned the land described as “Summit Avenue and Cross Street,” or had any right, title, or interest in the premises described as “Summit Avenue and Cross Street.” Held, that the complaint did not show any right in the plaintiff to insist on removal of obstructions from the premises.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Charles MacRae against Charles H. Graham and others to foreclose a mortgage. From an order distributing the surplus money arising on the foreclosure sale, George Hoadly and others, constituting the firm of Hoadly, Lauterbaeh & Johnson, appeal.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Fannie S. Eobinson against Agnes M. Schmitt to compel a reconveyance of property. There was a judgment in favor of plaintiff, and defendant appeals.</p>

Proceeding for the voluntary dissolution of the New York Mutual Insurance Company. From an order fixing the amount of compensation allowed to the receiver for his counsel, he appeals.

Proceeding for the probate of the will of Julia Ann Spratt, deceased. From an order denying a motion for new trial, after a' trial of the issues by jury, proponents appeal.

<p>New Trial—Newly-Discovered Evidence.</p> <p>A new trial was properly granted for newly-discovered evidence where plaintiff in an action on an indemnity bond given by the answering defendant and two others, whose whereabouts were unknown until after the trial, testified that he had no other security than the bond sued on, and after the trial the answering defendant met one of his co-defendants, who told him that the indebtedness secured by the bond had also been secured by the debtor’s real estate, the proceeds of which were afterwards applied by plaintiff to another claim against the debtor, and such statement was the first intimation the answering defendant had of that fact.</p>

<p>Appeal—Settlement op Cause—Order or Evidence.</p> <p>On a hearing before a referee, testimony contained in the printed record of a' former trial of the cause was read under stipulation, but it was not read in the order in which it was contained in the record. At first it was taken down in full by the stenographer, but afterwards was merely indicated in the stenographer’s minutes by reference to the record. It then became apparent that changing the order of the testimony had produced obscurity and confusion, though up to that time the hearing had proceeded on the theory that the testimony should be considered in the order in which it was read. With the view of obviating such difficulty, the matter was discussed before the referee, and a note was entered by him in his register, stating that the “counsel concurred in recommending the referee to examine testimony in order in printing record.” At the request of the referee, a copy of the printed record had been marked so as to indicate the parts read by the respective parties; and afterwards references were made to the pages or folios thereof, and not to the stenographer’s minutes, as before. The referee died after deciding the case, but before an appeal was taken. Held. '' that there was a course of practice amounting to a stipulation that the evidence should he- considered in the order in which it appeared in the printed record, and the defeated party, in settling the cause on appeal, was entitled to have it inserted in that order.</p>

<p>Appeal from trial term, Franklin county.</p> <p>Action by George W. Crooks and others against Frederick G. Rumball to .recover a balance alleged by plaintiffs to be due them for lumber sold to defendant. From the judgment for $525.94, damages and costs, entered on a verdict in favor of plaintiffs, defendant appeals.</p>

<p>Appeal from Kings county court.</p> <p>Action by Louis Lebowits and Benjamin May against Peter M. Colligan to recover brokers’ commissions. From a judgment affirming a justice’s judgment in favor of plaintiffs, defendant appeals.</p>

<p>Appeal from special term, Queen’s county.</p> <p>Action by John A. Taylor against Adelia Bulmetto to foreclose a mechanic’s lien. There was a judgment in favor of plaintiff, and defendant appeals.</p>

Action by John D. Gerken against the Royal Benefit Society to recover money alleged to be due on a relief-fund certificate issued by defendant. The complaint was dismissed on the merits at a trial by the court without a jury, and plaintiff appeals.

<p>Street Railroads—Injury to Person Crossing Track.</p> <p>Plaintiff, who was struck by defendant’s street car, was guilty of contributory negligence where she went on the tracks without looking tor an approaching car after leaving the door of the house from which she came.</p>

Action by Hugh McRoberts against Mary Mathews. From a judgment affirming a judgment of the justice of the peace in favor of plaintiff, defendant appeals.

Lawrence county. Action by Gharles A. Lummis against Margaret A. Van Dyke and Simon M. Jacobson to set aside a confession of judgment by said Jacobson, and certain mortgages executed by him as in fraud of his creditors. There was a judgment in favor of plaintiff, and defendant Van Dyke appeals.

<p>Appeal from judgment on report of referee.</p> <p>Action by William Lewis Boyle against the Staten Island & South Beach Land Company, Limited, on promissory notes. There was a judgment in favor of plaintiff, and defendant appeals.</p>

Action by Clara E. Bidwell against Maurice J. Sullivan, impleaded, etc., to .foreclose a mortgage. There was a judgment in favor of plaintiff, and defendant Maurice J. Sullivan appeals. Modified.

Action by Charles Bemsen and another against the Metropolitan Elevated Railway Company. From an order denying a motion for stay of the injunction against the operation of defendants’ railroad pending an appeal to the court of appeals from an affirmance of a judgment of the special term in favor of plaintiffs, defendants appeal.

<p>Mortgages—Consideration—Evidence.</p> <p>In a foreclosure action by the assignee of an interest in the mortgage, defendant (the mortgagor) claimed that the mortgage was given to secure advances to be made by one W., and that only a small part of the amount secured had been advanced, but her testimony showed that she did not remember the transaction clearly. The attorney who represented W. in the transaction in which the mortgage was given testified in support of defendant’s claim, but it appeared that he had taken an assignment of an interest in the mortgage at its face value in payment of his fees, and no satisfactory explanation of this was given. Held, that the court properly found that the mortgage was a valid security to the amount stated therein.</p> <p>Williams, J., dissenting.</p>

<p>Elections—Ballots—Indicating Persons Voted eor.</p> <p>The provision of the election law that voters shall indicate the candidates voted for by an X mark at a designated place on the ballots is mandatory, and failure to comply with it vitiates a ballot, without regard to the intent of the voter.</p>

<p>1. Wills—Validity—Unascertained Beneficiary.</p> <p>A provision in a will setting apart a fund for the erection of a soldiers’ monument on a village green, on condition that the green be first inclosed, and trees planted, but without providing how or by whom such provision should be carried out, is void for indefiniteness.</p> <p>8. Same—Conditional Bequest.</p> <p>. Such provision is also void because the present vesting of the gift is prevented by the condition attached.</p> <p>3. Same—Statute of Perpetuities.</p> <p>A direction in a will that a certain sum shall be permanently invested, and the income applied to the purpose of founding and supporting a public library in a designated village, but without naming a person to take the fund, creates an unlawful perpetuity. .</p>

<p>Rescission oe Contracts—False Representations—Intent to Defraud.</p> <p>An equitable action may be maintained to rescind a contract, on the ground that it was induced by false representations made by defendant, and relied on by plaintiff, though defendant had no fraudulent intent in making such representations.</p>

<p>Condemnation proceeding by the Pecksport Connecting Railway Company against' William M. West, as executor, and others.</p>

<p>Action by Catherine Kothe against Sarah A. Wilson and John T. Wilson.</p>

<p>1. Costs—Extra Allowance.</p> <p>Plaintiff will not be granted an extra allowance, where his conduct misled defendant into interposing a defense.</p> <p>2. Same—Action against Savings Bank.</p> <p>An extra allowance will not be awarded against a savings bank where its assets are not sufficient to pay all its depositors.</p>

Action by M. Temple Taylor, as executor of the will of Eliza Kenner, deceased, against Frederick J. Syme and another on two promissory notes. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for new trial, defendant Syme appeals.

Action by Alexander Stephen against Albert G. Woodruff and Sarah TV Woodruff, as executors of and trustees under the -will of Albert Woodruff, deceased, to recover damages alleged to have been sustained by plaintiff in consequence of injuries received by his minor child, by reason of the breach of an express warranty of defendants’ testator. Defendants demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action.

Claim by Margaret McCabe against Theodore B. Green and George W. Green, as executors of the will of Benjamin F. Constable, deceased. From a judgment entered on the report of a referee, and from an order confirming such report, defendants appeal.

<p>Nonsuit—Preponderance of Evidence.</p> <p>A nonsuit was properly granted at the close of the evidence in an action for personal injuries received at a railroad crossing, where seven witnesses testified that the flagman at the crossing waved his flag and hallooed at plaintiff to warn him of the approaching train, six witnesses testified that the whistle on the locomotive was duly blown, and eight witnesses testified that they saw plaintiff running towards and across the track, and the only evidence to the contrary was the testimony of plaintiff and one other witness.</p>

<p>Supplementary Proceedings&emdash;Foreign Corporation.</p> <p>The status of a foreign corporation as having a .business agency in the state, so as to exempt it from supplementary proceedings (Code Civ. Proc. §§ 1812, 2463), is not affected by the appointment of a receiver of the corporation.</p>

Certiorari by the Groton Savings Bank against Edward P. Barker, John Whalen, and Joseph Blumenthal, commissioners of taxes and assessments of the city of New York, to review an assessment of relator’s personal property for the year 1894. From an order vacating an assessment on the shares of bank stock held by the relator 'in banks in the city of New York, defendants appeal.

<p>Trusts—Purchase by Trustee—Application op Rule.</p> <p>A will provided that certain real estate should be set apart by the “executors, to be by them sold and disposed of, if necessary, for the purpose of raising money to pay off any existing mortgages on any of the property hereinbefore devised, and, in case it should not be necessary to sell and dispose of the premises hereby reserved, * * * i give, devise, and bequeath said premises to” plaintiff and others. Plaintiff was one of the executors. Held, that such power of sale did not constitute the executors trustees as to the property in question, where there were no mortgages on any of the property devised, and therefore plaintiff had the right to sue for partition of such property, and to buy it for his own benefit at the partition sale.</p>

Action by Ignazio Castle against the Greenwich Fire Insurance Company. There was a verdict in favor of plaintiff, and, defendant moves for a new trial.

<p>1. Attorney and Client—Value op Attorney’s Services.</p> <p>An attorney who performs personally services which are ordinarily performed by clerks and office boys is not entitled to the same rate of compensation as for services which only attorneys can perform.</p> <p>2. Same—Unnecessary Consultations.</p> <p>An attorney is entitled to compensation for consultations, which, though unnecessary, were demanded by the client.</p> <p>8. Account Stated—What Constitutes.</p> <p>Plaintiff in an action for legal services testified that, when he presented his bill to defendant, she asked whether she should draw a check at once, or whether plaintiff would call at a later day. Defendant testified that she was astonished at the amount of the bill, and said, “You will call here on Monday evening, and I will see you about it;” that he called accordingly, and she told him that he was not charging her right, and that she could not pay the bill, and that her remark about the check was ironical. Held, that an account stated was not shown.</p>

<p>Appeal from surrogate’s court, New York county.</p> <p>Judicial settlement of the accounts of Jane Oakes and others, as executors of Winifred Austin, deceased. From the decree, the executors appeal.</p>

Action by Thomas H. Welsh against Reinhardt & Co. From a judgment on a verdict for plaintiff, and from an order denying a new trial on the minutes, defendant appeals.

<p>Action by John F. Baxter against Charles E. McDonnell.</p>

<p>Action by Morris Arnold and another, comprising the firm of M. Arnold & Co., against the R. Rothschilds Sons Company.</p>

<p>Action by William Broadbelt against Sarah L. Loew.</p>

<p>Action by Columbia M. Binney against Joseph Carney.</p>

<p>Action by Arsenaus Beffrey and another against Margaret T. Coon.</p>

<p>Action by Fannie Bean Carrere against Robert G. Dun and others.</p>

<p>Appeal from special term, New York county. Action by Charles Buck and others against the Metropolitan Elevated Railway Company and another.</p>

<p>Action by Valentine Cook and others against George Finck.</p>

In the matter of the final accounting of Vaulx Carter, as assignee, etc. Action by F. V. Vandegrift and the Interstate Steamboat Company against Vaulx Carter, as assignee, etc., and Nathaniel Bacon.

<p>Action by William H. Clinchey against the Connecticut Indemnity Association of Waterbury, Conn.</p>

<p>Action by Mamie Curran, as administratrix of John Curran, deceased, against John McKelvey and another.</p>

<p>Action by Samuel P. Dunn and others against James H. Travis, impleaded, etc.</p>

<p>Action by Margaret B. Edson against John A. Bartow and others.</p>

<p>Actions by the Friendship Manufacturing Company against William F. Rohrig and by Henry W. Foote against the same defendant.</p>

<p>Action. by Caroline R. Garczynski against Dorr Russell and others.</p>

<p>Action by John Gray against the Kaufman Dairy & Ice-Cream Company.</p>

<p>Action by James H. Hoag against Edward Wright and another, as executors, etc.</p>

<p>Action by De Witt G. Hanfield against the St. Lawrence & Adirondack Railway Company.</p>

<p>Action by Louisa Lemien against Fredericka Lemien. Motion for restitution.</p>

<p>Action by J. Frederick Kernochan, as trustee under the last will and testament of Almy T. Hicks, deceased, against the Manhattan Railway Company.</p>

<p>Action by Henry R. McICim against the Manhattan Railway Company.</p>

<p>Action by Henry Mencken, Jr., against Christian Nurge.</p>

<p>Action, by John McMahon against Christian A. Jacob and others.</p>

<p>Action by Charles E. Maguire against Christian W. C. Dreher.</p>

<p>Action by Arthur W. Palmer, an infant, etc., against Noyes F. Palmer and others.</p>

<p>Action by the people of the state of New York against the city of Brooklyn, and Harry Cowdrey and others, as executors, etc.</p>

<p>Action by Gustav Muller, an infant, by George Muller, his guardian ad litem, against the ■ Brooklyn Heights Railroad Company.</p>

<p>Action by the people of the state of New York on the relation of the Bridgeport Savings Bank against Edward P. Barker and others, commissioners of taxes.</p>

Action by the people of the state of New York on the relation of the commissioners of public charities and correction against William Cullen.

Proceeding on the relation of David L. Van Nostrand, as chairman of the Queens county board of supervisors, against Adolph Simis, Charles J. Henry, and John H. Burtis, as commissioners of charities and corrections of the county of Kings, and Patrick Hayes, as warden or keeper of the Kings county penitentiary.

<p>Action by the Roslyn Heights Land & Improvement Company against Robert Burrowes, impleaded, etc.</p>

<p>Action by Simon Rothschild against the Rio Grande Western Railway Company.</p>

<p>Action by Clara Rost, an infant, etc., by Ernst Rost, her guardian ad litem, against the Brooklyn Heights Railroad Company.</p>

<p>Action by Leah L. Pike against the Metropolitan Street-Railway Company.</p>

<p>Action by John Schultes against Magdalena Bischoff.</p>

<p>In the matter of laying out highway in the town of Easthampton, etc.</p>

<p>Action by Eliza A. Whitney against Helen M. Brit-ton and others.</p>

<p>Action by Maud B. Winkemeier against Christian F. Winkemeier.</p>

<p>Action by the Wilcox & Gibbs Sewing-Machine Company against Jehiel W. Himes.</p>