Volume 46 — New York Miscellaneous Reports

<p>Tenancy by entirety — Conveyance by husband to wife — Estoppel as against subsequent grantees.</p> <p>By virtue of Laws of 1887, chap. 537, which permits husband and wife to convey directly to each other without the intervention of a ■third person, a husband may convey directly to his wife his interest in lands of which they are seized as tenants by the entirety.</p> <p>After a subsequent conveyance by a warranty deed of a wife so invested with the whole title, both she and her husband are estopped by their deeds from questioning the title of the grantee.</p>

<p>Curtesy merged in higher title — Vendor’s lien when barred by Statute of Limitations — When payment presumed — Vendor’s lien and equitable mortgage distinguished.</p> <p>■ An intestate, seized of real estate in fee simple, left her surviving a husband, mother, one brother, but no children or descendants of deceased children, and no father.</p> <p>Held; The inheritance descended to the mother for life, reversion to the brother, subject to the husband’s curtesy, if any.</p> <p>Under such circumstances the mother conveyed to the husband “ subject to his curtesy ” and the brother and his wife quit-claimed to said husband.</p> <p>Held; The curtesy, if any, was merged in the higher title;</p> <p>Held, further; Where a grantee of real estate withholds part of the purchase price to secure himself against claims of third persons against his grantor, the grantor has a vendor’s lien for the unpaid balance; and where the grantee executes and records an instrument declaring that he withholds said sum it is notice of such lien.</p> <p>But where more than thirty years have elapsed since the time fixed for the payment of such balance of the purchase price there is a presumption of payment and, in any event, the lien is barred by the Statute of Limitations.</p> <p>It seems that such transaction does not constitute an equitable mortgage, but even if so the statute bars a recovery thereon.</p>

<p>Action to recover damages for personal injuries. Demurrer to complaint.</p>

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

<p>Action for interpleader.</p>

Motions to be relieved from stipulation and for the appointment of a referee to take depositions in an action to recover moneys had and received.

<p>Action for breach of covenant in a deed. The opinion states, the case.</p>

<p>Building contract construed — Rights of subcontractor who has filed mechanic’s lien — Recovery on quantum meruit when completion prevented — Reasonable cost of completion of building by owner after abandonment of contract, how figured.</p> <p>In a building contract the contract itself together with the plans and specifications are to be read together and when they call for the erection óf a house and stable the contract is an entirety and payments made thereon are on account of the whole work, not on account of the house and stable separately.</p> <p>When a subcontractor makes several successive subcontracts to do work, under the entire contract aforesaid, such subcontracts are deemed to constitute an entire contract, especially as between the owner and the subcontractor who has filed a mechanic’s lien on the premises.</p> <p>Where such subcontractor has been stopped in the further performance of his work, by reason of differences between the owner and, the contractor, and has substantially performed his contract he may recover of the owner upon a quantum meruit and such owner cannot set up equities which may exist between the contractor and the subcontractor.</p> <p>Where the original contract with the owner provides that fifteen per cent, of the contract price is to be retained until the completion of the work, a lien, filed by a subcontractor, attaches to all sums earned by the contractor and remaining unpaid, subject^ however, to deductions if the amount unearned under the original contract should prove insufficient to meet the reasonable cost of completing the building by the owner.</p> <p>Where the owner’s architect testifies that, out of the sums paid to the original contractor, fifteen per cent, of the work actually done was retained, the owner’s contention that his subsequent contract, for the completion of the building, which includes such unpaid balance was the reasonable fair cost thereof cannot be credited.</p> <p>Where the owner’s contract for the completion of a building provides that the contractor, before final payment, shall produce satisfaction pieces of all liens, the contract price is not the reasonable cost of completion because it includes the payment of all liens filed under the prior contracts.</p> <p>The value of materials delivered but not used and extra work done by an original contractor, who has suspended operations, should be deducted from the owner’s contract for the completion of the work in arriving at the fair value Of such completion.</p> <p>A mechanic’s lien is a chose in action and may be assigned.</p>

Action on an employer’s liability insurance contract, tried before the court without a jury. The defendant denies the existence of a contract.

Motion to confirm an inquisition. This was the second hearing in the above-entitled matter. A motion to confirm the inquisition taken on the first hearing was denied and a new hearing ordered. See Matter of Preston, 43 Mise. Rep. 550. The second hearing was had before Timothy M. Griffing, Esq., solé commissioner, and twenty jurors, on December 6, 7 and 8, 1904. The inquisition was signed by eighteen of the jurors, and the commissioner concurred therein.

Appeal by plaintiff from an interlocutory judgment of . the City Court of the city of .New York, overruling plaintiff’s demurrer to the separate defense contained in paragraph IV of the answer.

<p>Appeal from an order of the City Court of the city of hfew York, denying the motion of the defendants for a new trial on the ground of newly-discovered evidence and surprise.</p>

<p>Effect of failure to inspect goods sold on sample within reasonable time — Failure to inspect goods is waiver of implied warranty.</p> <p>The defendant wh'en sued for the price of goods, sold by sample and delivered, counterclaimed the value of certain goods returned by its customers as defective. It was shown that the defendant retained the goods six or seven months without inspection and did not attempt to return the same as defective until refused by its customers.</p> <p>Held, that upon sale and delivery it was the duty of the vendee to examine the goods within a reasonable time and if found not to comply with the sample to rescind the contract. As it was shown that the goods could have been examined within two days after delivery a delay of some months in making such inspection is a failure to inspect within a reasonable time and such failure is not excused by proof that the inspection would have been inconvenient.</p> <p>Where there is no claim of an express warranty which survives acceptance such failure to inspect is a waiver of any implied warranty.</p>

<p>Terms on granting new trial on grounds of surprise — Wo extra allowance.</p> <p>Where a new trial is granted on the grounds of surprise the terms imposed should not include an extra allowance of five per centum upon the amount claimed.</p>

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

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

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

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

Appeal by the defendant from a judgment of the Municpal Court of the city of Mew York, fifth district, borough of Manhattan, rendered in favor of the plaintiff.

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

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

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

<p>Penalty for refusal to exhibit stock book.</p> <p>For three separate refusals to exhibit stock books, as required by section 29 of the Stock Corporation Law, the defendants are liable for but one penalty where it is admitted that the plaintiff’s several demands for inspection were for the purpose of getting certain definite information once for all.*</p>

Appeal by the defendant from a judgment of the Municipal Court of the city, of New York, twelfth district, borough of Manhattan, for fifty dollars and costs on verdict of a jury.

Appeal by the defendant from a judgment entered in fayor of the plaintiff and against the defendant by the justice of the Municipal Court of the city of New York, twelfth district, for $200 damages and costs.

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

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

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

Appeal by defendant from a judgment of the Municipal Court of the city of New York, tenth district, borough of Manhattan, entered on the verdict of a jury in favor of the plaintiff.

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

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

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

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

<p>Appeal by the defendant Joseph Cohen, from a judgment in favor of the plaintiff rendered in the Municipal Court of the city of New York, thirteenth district, borough of Manhattan, and also from an order • denying a motion to vacate the judgment and to strike the cause from the calendar.</p>

<p>Stay of proceedings — Action to restrain pollution of watercourse — Demurrer — Similar action against defendants pending,</p> <p>A stay of .proceedings in one action until the determination of a pending cause in another court, may not be granted where the party, against whom the stay is sought, is neither a party nor privy to such other action and will not be btiVind by an adjudication therein.</p> <p>Where owners in severalty of lands lying along a creek bring separate actions by the same attorney against defendants, who are owners in severalty of tanneries upon said creek, to recover damages for the pollution of the creek and to restrain further pollution, a motion by certain of the defendants, who bad demurred to the complaint upon the ground of misjoinder, there being no allegation of mutuality, to stay a further prosecution of said actions upon the ground that another owner along the .creek had brought a similar action, in which a decision upon a similar demurrer was then pending, must be denied with costs solely for want of power.</p>

<p>Writ of habeas corpus; hearing on demurrer to a return.</p>

<p>Libel and slander — Allegation as to meaning of words complained of — Notice posted by stock exchange concerning plaintiff — Demurrers.</p> <p>Where words are susceptible of different meanings, one or more of them not defamatory, the complaint must single out and allege the meaning complained of.</p> <p>A written notice posted by the New York Produce Exchange upon its bulletin board in its building to the effect that, pursuant to a provision of its by-laws, the plaintiff, naming him', was prohibited representation on the floor of the Exchange during the pleasure of its board of managers and that any member of the Exchange who, with knowledge of such prohibition, should represent or transact business for or on behalf of said plaintiff, naming him, after said notice had been posted five days, should be deemed guilty of willful violation of the by-laws and subject to the penalty therein prescribed, is not necessarily defamatory and, in the absence of an allegation as to the meaning the defendant intended to convey, or the charge it intended to make, against the plaintiff, his complaint is demurrable upon the ground that it does not state facts sufficient to constitute a cause of action.</p> <p>The complaint stated a cause of action against the defendant corporation for publishing the above-mentioned notice and alleged that it did so because the individual defendants represented to it that the plaintiff refused to pay them “ all obligations claimed to be' due by plaintiff ” to them and that the individual defendants thereby intended to brand the plaintiff as a person who did not pay his debts and to impute to him insolvency and prevent him from trading on credit, but there was no allegation that they requested or procured the notice to be posted. Held, that demurrers by the individual defendants on the grounds, (1), that two causes of action had been improperly united and, (2), that the complaint did not state facts sufficient to constitute a cause of action, should be sustained.</p>

<p>Specific performance — Sufficiency of complaint.</p> <p>Where, in a suit for specific performance of a contract to convey real estate or, if that turn out on the trial to be impossible, for other equitable relief if any there be, it appeared that defendant had agreed to procure the cancellation of a lease that was on the property before a day certain and. that the lessee would vacate before that time, the fact that the cancellation of the lease must be by act of the lessee does not make the complaint bad.</p>

Actios for damages for false and fraudulent repre- . sentations. Complaint dismissed on the plaintiff’s evidence, and motion on the minutes for a new trial.

<p>Action to recover money deposited by purchaser upon contract for the sale of real estate, and moneys expended in searching title, brought to trial as an action in equity by consent.</p>

<p>Guaranty — Payment and collection of bond and mortgage — Partial release of claim — Partial defense — Demurrer — Guarantor may not plead usury — Extending time of payment.</p> <p>Where upon the sale of a bond and mortgage the assignor guarantees payment and collection and promises to pay the bond and mortgage at maturity, the guaranty relates to payment and not merely to collection and the holder at his election may proceed against either the principal debtor or the guarantor.</p> <p>A partial release of claim by the plaintiff in an action to foreclose a mortgage assigned to him with guaranty of payment and collection enures to the benefit of the guarantor only to the extent the claim is reduced and the fact may be pleaded as a partial defense to an action upon the guaranty, and if not so designated, the defense is open to demurrer.</p> <p>In an action upon a guaranty of payment and collection of a bond and mortgage the defense, that an extension of the time of payment with defendant’s consent was void for usury, is not available, and an allegation that the plaintiff fraudulently and wrongfully concealed from defendant the facts relating to the alleged usury for the purpose of inducing his consent to the extension presents no defense as plaintiff was not in duty bound to inform defendant of any payment exacted from the principal debtor at the time of the extension.</p>

<p>Mechanic’s lien — Substantial performance of contract — Burden of proof — Material omissions — Depth of excavations for foundation walls.</p> <p>Where an action to foreclose a mechanic’s lien of the unpaid balance due upon a building contract is so framed that a recovery must depend upon a substantial performance of the contrae! by plaintiff and the evidence shows that there has been a material and substantial omission in the construction of the foundation walls of the building, which plaintiff failed to supply after notice and ample opportunity, he has not discharged the burden of showing substantial performance so far as the omission, the cost of remedying which was not proven, might be made the subject of deduction from the contract price.*</p> <p>Where a statute, regulating the protection of building walls between adjoining owners, places upon the owner of a building the ¡burden of protecting the structure if the foundation walls are insufficient for its protection, where an adjoining owner makes an excavation of less than ten feet, and the evidence in an action by the contractor to foreclose a mechanic’s lien establishes that while the specifications required that excavations for foundation walls ■■should be carried down ten feet, three inches, they were in fact less than ten feet in depth the deficiency, which plaintiff failed to remedy after notice and ample opportunity, cannot be viewed as immaterial for the purposes of a finding that the contract was substantially performed.</p>

<p>Issues of law on demurrer to complaint.</p>

<p>Issues of law upon demurrer to counterclaim.</p>

<p>Application by the corporation counsel to lay out, establish and regulate a public driveway in the city of Few York pursuant to Laws 1893, chapter 102.</p>

Motion by defendant for an order modifying the decree in this action by reducing the alimony and motion by plaintiff to reopen the reference.

<p>Highways — Legislature may authorize temporary obstruction — Delegation of authority — Abutting property not damaged — Injunction.</p> <p>The legislature, by virtue of its general control over public streets and highways, has power to authorize structures in the streets for the convenience of business that, without such authority, would bo held at common law to be encroachments and obstructions, and that authority it may delegate to the board of rapid transit commissioners of the city of New York.</p> <p>Where a corporation, having secured the right to construct, operate and maintain a railroad and for a terminal station between certain streets in the borough of Manhattan, city of New York, enters into a contract for the excavation of the ground and the construction of a retaining wall for said station, and plans, showing the precise location and all the details of the proposed tramway structure, have been consented to and approved of by the rapid transit commissioners of the city and their permission duly giveu to lay such tramway over the surface of Thirty-second street between Ninth avenue and Twelfth avenue and intersecting avenues to be used for the purpose of the removal of excavated material, and the contractor also obtains from the president of the borough of Manhattan a permit to take up the pavement and excavate in Thirty-second street from Ninth avenue to the Hudson river, for the" purpose of constructing a temporary railway for the removal of excavated material, he may not be restrained from proceeding with the erection of such tramway at the suit of an abutting owner suffering no damage on account of the erection of the structure.</p> <p>Where it appeared that, up to the time the. work was stopped by an injunction pendente lite,, plaintiff had suffered no damage on account of the erection of said structure, h'is application for a continuance of the temporary injunction, the facts remaining the same, must be denied.</p>

<p>Issues 'of law upon demurrer to the complaint upon certain specified grounds separately interposed by each of. the defendants. The nature of the action and the material facts are stated in the opinion.</p>

<p>Statute of Frauds — Partnership deal in real estate — Part performance— Damages — Plaintiff entitled to an accounting.</p> <p>A partnership agreement to engage in real estate transactions need not he in writing.*</p> <p>Where there has been a part performance by one of the parties to an agreement to engage in real estate transactions, of such a character that his remedy at law for the amount of his damage occasioned by the breach of the contract by his partner would be difficult or impossible of proof, he is entitled to an accounting and to his share of the profits.</p> <p>Evidence considered and held to justify a finding that the agreement in suit was for an equal share of the profits and that plaintiff substantially performed the contract on his part.</p>

<p>Contract — Attorney employed to protect rights of testamentary trustee— Action to charge trust fund with value of services.</p> <p>An action, is maintainable in the first instance to directly charge the income of a trust fund with the value of services rendered by an attorney to a testamentary trustee in protecting her rights as trustee against the alleged improper and illegal action of the other trustees who sought to exclude her from any participation in the management and conduct of the trust, where it is alleged in the complaint, and not denied, that the defendants as such trustees are in control of the estate and in the joint receipt and possession of the rents and profits thereof, jointly discharging all charges against the estate and paying to themselves individually as sole beneficiaries the net income and that no judicial accountings are necessary or have been had.</p>

<p>Liquor Tax Law — Section 31k, as amended in 1903 — “Hotel” — “ Other dwellers.”</p> <p>The test whether a building, used and kept open for the feeding and lodging of guests, is a hotel within the meaning of section 31k of the Liquor Tax Law as amended in 1903, is what the landlord is willing to do, and sometimes does do, in the way of receiving visitors without any agreement as to rate or time and not what he may do in other cases and with other visitors in the way of making such engagements in advance, and the mere presence of guests, who have a stipulated engagement as to the duration of their stay and rate of compensation to be paid, cannot operate. (to deprive that which is a hotel of its character as such.</p> <p>The words “ other dwellers ”, in section 31k of the Liquor Tax Law as amended in 1903, mean other than guests in a hotel under a stipulated engagement or without one.</p>

<p>Deposition—Examination before trial — Code Civ. Pro., § 870 — Modification of order — Production of papers — Laches — Explosion in subway — Action for personal injuries.</p> <p>An order for the examination before trial of an officer of an electric illuminating company, granted in an action for personal injuries received in consequence of an explosion in a subway leased by defendant for the purpose of holding its wires, may be modified so as to provide for the production, for use on such examination, of the lease, or a copy thereof, by which the defendant acquired space in the subway and also all reports made to it with regard to the causes of the accident and the condition of the wires in the subway subsequent thereto.</p> <p>Where much of the delay in making the application for such modification was caused by defendant’s appeal from an order denying a motion to vacate the order for examination the plaintiff is not chargeable with laches in view of the provision of the Code of Civil Procedure (§ 870) that the examination may be had “at any time before or during the trial ”.</p>

<p>Action for the annulment of a marriage.</p>

<p>Will — “Death without issue” — Intention of testator — Construed tro mean a death after testator — Legacy charged upon real estate—• Partition.</p> <p>The rule, that where by the terms of a will a devise or bequest is made to A., followed by a provision that in case of the death of A., without issue, the property devised or bequeathed shall go to B., the “ death without issue ” refers to a death during the lifetime of the testator, yields to facts and circumstances showing a contrary intention.*</p> <p>Where a testator bequeathes and devises absolutely the residue of his estate to his wife, a subsequent provision that, in case of her death without children, one-half of the estate so devised shall be paid to his legal heirs, has no force if the death of the wife during the lifetime of the testator was intended, and will be construed to mean, if she died after him, particularly where the will directs her, not the executors, to pay a thousand dollars to his adopted daughter “ out of my estate ” with interest within ten years of his decease, or as much sooner as she might be able.</p> <p>The wife at the time of her death without children, was the ■ owner of said legacy, upon which nothing had been paid but some interest until its assignment to one who bequeathed it to the wife. Upon the settlement of her husband’s estate his executor made a payment to her to be applied upon said legacy and she left her property by will to the adopted daughter and another person. In an action of partition, brought by one having a contingent interest in one-half of the testator’s estate, Held, (1), that the legacy to the daughter was a charge upon the real estate; (2), that the claims of the present owners of said legacy -were limited by what the wife’s might have been; (3), that the sole interest in the estate never having united in her the unpaid balance of said legacy, with interest thereon from her death, was still chargeable upon the real estate.</p>

<p>Domestic Relations Law — Section 26 — Deed from husband to himself and wife — Estate by entireties — Partition.</p> <p>The common-law rule of unity which, upon conveyance of land to husband and wife, vested an estate by the entireties in the grantees, does not apply to such a conveyance from husband to wife made under a statute (Domestic Relations Law, § 26) enabling them to convey directly to each other.</p> <p>Where in a deed of land in this State made in 190-1, by a husband to himself and wife for their joint lives, the survivor to become absolute owner, the words of conveyance are to the grantees “ their heirs and assigns forever ”, no estate in the land by the entireties is created and the husband may maintain an action for partition.</p>

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

<p>Bankruptcy — Action by trustee to set aside fraudulent transfers.</p> <p>Where the bankrupt defendant several years prior to her adjudication as a bankrupt on justifying a surety upon an undertaking given on appeal from a judgment against a corporation, of which her husband was president, made oath that she was a freeholder owning an undivided one-half interest in certain unincumbered real estate worth $10,000, and less than a month after the affinnance of the judgment appealed from conveys her interest in the property by a deed absolute on its face to her sister for $2,500, after mortgaging it for $2,500, loaned, as the mortgagee testified to the mortgagor’s husband who was not called as a witness and within a month of the entry of judgment against her on the undertaking, files a petition in bankruptcy, her schedules stating an indebtedness of $2,200 and her only assets wearing apparel worth twenty-five dollars, her trustee in bankruptcy is entitled to have the mortgage set aside as fraudulent and the deed to her sister, which the evidence disclosed was in fact a mortgage to secure a valid debt, set aside upon payment of the amount of the debt still due and owing.</p>

<p>Appeal — Return incomplete — Amendment — Action to recover penalty for failure to give transfer on street railway.</p> <p>Where, in an action to recover a penalty for an alleged failure of a street railway company to give a transfer, the evidence shows that there were at least two lines of cars running over and along the street and over the same tracks at the point where plaintiff boarded a car, and a lease of said lines, alleged to have been given by another street railway company to the defendant, was received in evidence and marked as an exhibit but was neither attached to, nor submitted with, the return on appeal, this court cannot determine whether or not the car boarded by plaintiff ran over a line controlled or operated by the defendant and the record must be returned to the files of the court for amendment or completion.</p>

Appeal by the defendant from a judgment of a jury in the City Court of the city of Uew York in favor of the plaintiffs, and also from an order denying defendant’s motion for a new trial.

<p>Mechanics’ lien — Consent of owner to performance of work.</p> <p>Where plaintiff under an employment, by the lessee of three apartment houses, furnished material and performed work therein as a master painter before the leases were signed by the tenants, and after part payment by the lessee seeks to bring about payment from the owner by filing a notice of a mechanics’ lien, evidence that the owner, while the work was in progress in her apartment in one of the houses, said that she hoped plaintiff would do her a good job and the same kind of work in all three houses, together with the testimony of plaintiff’s attorney that when he served her with the summons in the action and suggested a settlement to save suit, the defendant owner replied that she had an arrangement with the lessee and was amply secured against any claim that could be made against the property or herself, is insufficient to establish the consent required by the statute on the part of the owner to the performance of the work.</p>

<p>Appeal from two orders of the Oity Court of the city of New York, denying the motion of the defendant to cancel and discharge as to him a judgment obtained against a copartnership composed of Otto Kaufman and Simon Hirsch.</p>

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

<p>Appeal from an order of the City Court of the city of New York, setting aside a verdict in favor of plaintiff for the sum of $875 and granting a new trial. In granting the motion to set aside the verdict, the learned justice who presided at the trial acted upon the view that the matter was res adjudicatei, and for that reason set aside the verdict.</p>

<p>Summary proceedings — Expiration of term.— Code Civ. Pro. § 2231, subd. 1 — Landlord’s right of re-entry — Precept — Irregular service — Waiver.</p> <p>Where the term granted by a lease is in terms made liable to curtailment upon the giving of a five days’ notice in writing by the landlord for any breach by the tenant, all claim and right of the latter under the lease expires upon the notice being given, and thereupon the landlord is entitled to maintain summary proceedings under section 2231, subd. 1, of the Code of Civil Procedure for dispossession for holding over.</p> <p>A clause in a lease providing that in case of breach of any covenant, the landlord may re-enter the premises, limits the landlord to his right to bring ejectment.*</p> <p>Where in a proceeding to dispossess a tenant, holding over after the expiration of his term, he appeared and answered, the objection that full time had not elapsed between the issuance of the precept and its return, may not be raised for the first time on appeal.</p>

<p>Appeal by the defendant from a judgment rendered in favor of the plaintiffs in the Municipal Court of the city of Hew York, thirteenth district.</p>

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

Appeal by the defendant from a judgment in favor of-the plaintiffs, rendered in the Municipal Court of the city of New York, thirteenth district, borough of Manhattan,

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

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

<p>Pleading — Counterclaim — Set-off — Summary proceedings — Defenses.</p> <p>A separate and distinct cause of action for damages for breach of contract remains a counterclaim though pleaded as a set-off.</p> <p>An alleged violation of a landlord’s agreement to keep a liquor license in force for the tenant is no defense in a proceeding to dispossess the tenant for non-payment of rent; nor is the landlord estopped from asserting the tenancy to be in one other than the person in whose name the license was issued.</p>

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

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

Appeal by the defendants from a judgment of the Municipal Court of the city of Hew York, fourth district, borough of Manhattan, in favor of the plaintiff for the sum of $114 and costs.

Appeal by the plaintiff from a judgment rendered in favor of the defendant dismissing the complaint and from an order denying plaintiff’s motion for a new trial, made in the Municipal Court of the city of Yew York, twelfth dis- . triet, borough of Manhattan.

<p>Contract — Farm produce — Death of party before delivery by executrix— Action for balance due — Advances to testator may not be deducted — Accord and satisfaction — When check not.</p> <p>An agreement by a testator in his lifetime to deliver certain farm produce, when mature and ready for market, to defendant, a freighter, who from the proceeds of sale was' to reimburse himself for advances made to said testator upon the strength of the agreement, is merely executory, the title to the property remaining in the testator; and where such produce was delivered by his executrix to defendant after a conversation in which no reference was made to the agreement, of which, so far as the evidence .showed, the executrix knew nothing, the defendant acquired no rights in such produce as against the estate of the testator and the executrix is entitled to recover the amount advanced to the testator in his lifetime and withheld by defendant upon accounting for the proceeds of sale.</p> <p>An acceptance by plaintiff of defendant’s check for the balance of tlie account, after deducting the amount of the advances to testator in his lifetime, though retained and collected by her,, held not to constitute, in the circumstances, an accord and satisfaction.</p>

<p>Action by plaintiff, as receiver in supplementary proceedings, to recover certain real estate.</p>

Motions by defendant in this and twenty-one other similar actions for orders suspending the operation of injunctions restraining the defendant from sewering into the Oayadutta creek.

<p>Damages — Action for injury to property — Writ of inquiry — Code Civ. Pro., § 1215 — Order of reference unauthorized.</p> <p>Where the defendant, in an action for injury to property, makes default, the damages must be ascertained by a writ of inquiry.</p> <p>The conversion to defendant’s own use of money collected by him as agent of an insurance company constitutes an “ injury to property ” within the meaning of section 1215 of the Code of Civil Procedure and in an action based upon such conversion the court has no power to order a reference upon defendant’s default.</p>

Suit to have a general ordinance or order made by the defendant, which prohibits the general nse of parts of certain streets to vehicles, declared void, and to restrain the defendant from carrying it ont. On the return of an order to show cause for a permanent injunction, counsel for defendant served a demurrer to the complaint that it did not state facts sufficient, and consented that that issue be tried at the same time.

<p>Pleading — Defense — Of what consists — Amended answer — May not plead as “ defense ” matter provable under general denial — False imprisonment — Malicious prosecution.</p> <p>A defense can consist only of matter which, conceding the truth of all the allegations of the complaint, defeats the action.</p> <p>A motion for leave to serve an amended answer setting up as a “ defense ”, matter, evidence of which is admissible under a general denial in the answer will not be granted.</p> <p>Where to the complaint in an action against a corporation and one of its employees for false imprisonment and malicious prosecution in arresting and prosecuting' the plaintiff for an alleged violation of the criminal law, the corporate defendant answers by i general denial, under which it may prove any fact tending to show that the arrest was for the offense charged and that the subsequent prosecution was with probable cause, the affirmative of the issues being with the plaintiff, leave to serve an amended answer setting up as an alleged “ defense ” matter consisting wholly of a recital of evidence of probable cause, will be denied upon the ground that such matter cannot be pleaded as a “ defense ” or as a “ partial defense ” being embraced within the general issue.</p>

The three subdivisions of the complaint which the answer purports to deny are as follows: “ II That said defendant as such Beceiver and in order to properly administer his trust and for the benefit of said business, property and estate and the credit of said firm, duly purchased from this plaintiff at various times between January 3rd, 1900, and January 14th, 1902, goods, wares and merchandise amounting to the sum of $506.31, and that this plaintiff at the request and upon…

<p>Building and loan associations — Mortgage by member as collateral security for loan — Foreclosure by receiver — Credits to member — Deductions.</p> <p>In an action by the receiver of a building loan company, to foreclose a mortgage executed by a member of such company as collateral security for an advance, the premium and all payments thereon must be left out of consideration entirely in fixing the amount due to the receiver by the defendant member.</p> <p>The member is not entitled to be credited with any premium payments, they having gone into the company as part oi its assets.</p> <p>The monthly dues are in the same category as the premium payment and cannot be credited to the members’ account in their relation as borrowers.</p> <p>The member is not entitled to any credit on the principal sum representing the loan or advance.</p> <p>The member is not entitled to a credit of any interest payment by him in excess of the actual rate per cent, paid by the company on outstanding mortgages; the difference of interest was part of the company’s profit and such increment belongs to all the stockholders.</p> <p>The amount of the underlying mortgage left unpaid by the company must be deducted from the principal sum of the company’s mortgage-—the balance represents the amount due to the company by the defendant, plus any arrears of interest thereon, taxes, etc., as in ordinary cases.</p> <p>If the liquidation of the New York Building Loan Banking Company has proceeded so far that the receiver already knows the approximate amount of the dividend to be paid, he should as a matter of grace, credit the defendant with his proportion now.</p> <p>Adjustments between borrowing members and insolvent building loan associations depend upon principles of law. The receiver cannot lawfully take from stockholders and creditors what legally belongs to them and call that equity. The system of established principles called equity is not so elastic as that.</p>

<p>Suit by the committee of the estate of an incompetent to set aside a conveyance without consideration of real estate by such incompetent to his son, the defendant Frederick 0. Day, before the institution of the incompetency proceedings, on the ground that it was obtained by fraud and undue influence; and also to set aside a mortgage given by the said grantee to the other defendant since such proceedings and the appointment of the committee therein.</p>

Suit for dower. Alexander Johnson died intestate and seized of the lands in suit. He left surviving a widow, viz., Ann Johnson, and three children by her, viz., John W., George B. and Annie. George B. died thereafter in 1903, and the plaintiff, his widow, brings this suit for dower in one undivided third of the said lands, all of the said other living persons being defendants.

<p>Action to remove cloud on title.</p>

<p>Contract — To furnish hats for dramatic production — Parol evidence — Goods sold and delivered — Quantum meruit.</p> <p>Where the terms of a written contract are not set forth with precision, parol evidence is admissible to show what the agreement really was.</p> <p>In an action to recover upon a quantum meruit, for goods sold and delivered, the plaintiff, upon showing a delivery of the goods and defendants’ breach of the written contract relating thereto, is entitled to recover the price therein agreed to be paid.</p> <p>Where in consideration of the plaintiff’s written contract for the insertion of an advertisement in certain theatre programs at a specified weekly sum payable “ to apply on a/c of hat order on other side ” the defendants agree in writing upon the back of said contract to give the plaintiff the order to make hats for a certain dramatic production for which plaintiff is to charge defendants twenty-two dollars per hat as per design shown, the plaintiff in an action upon quantum meruit to recover for goods sold and delivered is entitled to show by parol evidence that his agreement was to furnish 125 to 150 hats of various kinds and values, of which 63 were to be much more costly than the rest, and that an average price at twenty-two dollars was fixed; that they were to be paid for one-half on delivery and the remaining half to be applied to the advertising contract; that he was not permitted to have the designs so as to make the hats of lesser value, and that he was not paid on delivery for the 63 hats, nor at any time, though often promised payment.</p>

<p>Action against sheriff for conversion. The opinion states the facts.</p>

Motions by plaintiff for a direction of a verdict in his favor, and by defendant for a dismissal of the complaint, on which motions decision was reserved until after assessment of damages by the jury under section 1187 of the Code of Civil Procedure.

Action to set aside a written assignment of a certain specified share in the income of a testator’s estate bequeathed absolutely to plaintiff. The opinion states the case.

<p>Action for an accounting and to impress a trust.</p>

<p>Actioit by plaintiffs as executors and trustees under the will of Thomas Connock Elliott, deceased, to enforce payment, out of trust funds located in this State, under a trust created by defendant Anna Benkard Hunt, by deed executed in 1872, of moneys advanced at London, England, to the defendants by said Thomas Connock Elliott, deceased, on the security of mortgages executed by said Anna Benkard Hunt of the interest reserved by her in said mortgage and joined in by two of her children. Demurrer to complaint.</p>

<p>Action for partition. The opinion states the case.</p>

<p>Mortgage — Assignment subject to equities — Extension of time of payment — Foreclosure.</p> <p>An assignee of a mortgage takes no other or greater rights than the assignor.*</p> <p>The assignee of a mortgage for a valuable consideration takes it subject to a valid oral agreement between his assignor and the mortgagor, extending the time of the payment of the mortgage debt, although he had no notice thereof and such agreement is a defense to an action for the foreclosure of the mortgage commenced before the expiration of the new term of credit.</p>

Demubbeb, to complaint upon the ground that the complaint failed to allege the service of written notice of the defect in the sidewalk, as required by the charter of the city of Middletown, before the accident occurred.

<p>Motion by plaintiff to make defendant’s answer more definite and certain and to strike out certain allegations from the answer as irrelevant and redundant.</p>

<p>Demueeeb by defendant to plaintiff’s alleged first defense to defendant’s counterclaim.</p>

<p>Replevin — Security for costs — Code Civ. Pro., §§ 1699, 3268.</p> <p>Where a foreign corporation as plaintiff in replevin has given the undertaking required by section 1699 .of the Code of Civi) Procedure, it cannot be compelled to" give security for costs under section 3268 (2).</p>

Appeal by the defendant from an interlocutory judgment of the City Court of the city of New York, overruling a demurrer interposed by the defendant to the amended complaint on the ground that on its face it fails to state facts sufficient to constitute a cause of action.

<p>Appeal from an order of the City Court of the city of Mew York, made at a Special Term thereof, allowing a re-taxation of costs.</p>

<p>Appeal from a judgment of the City Court of the city of Hew York, rendered at a trial term, dismissing the affirmative claim of the defendant, The Peck Brothers and Company, as against the defendant Paul B. Pugh and Company, in an action to foreclose a mechanic’s lien. The opinion states the material facts.</p>

Appeal by the defendant, Union Railway Company of New York city, from a judgment of the City Court of the city of New York, entered against the defendants in favor of the plaintiff, after a trial had at trial term, before the “court and a jury.

<p>City Court of New York — Security for costs — Affidavit — Allegation as to plaintiff’s non-residence. •</p> <p>An affidavit to obtain an order requiring the plaintiff in an action brought in the City Court of the city of New York to give security for costs under section 3268 of the Code of Civil Procedure which does not allege that the plaintiff has no office for the transaction of business, either in the borough of the Bronx or in the borough of Manhattan, is insufficient.</p>

<p>Appeal by the defendant from an order of the City Court of the city of Mew York, made at Special Term, placing this cause upon the short cause calendar.</p>

<p>Appeal by the plaintiff from a judgment of the City Court of the city of Hew York rendered in favor of the defendant.</p>

<p>Appeal by the defendants from a judgment of the City Court of the city of Hew York entered upon the verdict of a jury in favor of the plaintiff in an action of replevin.</p>

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

<p>Usury — Personal defense.</p> <p>In an action upon an assigned claim for wages, the defendant may not plead that the assignment was made to secure a usurious loan.</p>

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

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

Appeal by the landlord from final orders in favor of the tenant in summary proceedings, rendered by the Municipal Court of the city of ETew York, thirteenth district, borough of Manhattan.

<p>Appeal from an order made in the Municipal Court of the city of New York, thirteenth district, borough of Manhattan.</p>

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

Appeal by the defendants from a judgment of the Municipal Court of the city of New York, seventh district, borough of Manhattan, entered in favor of the plaintiff by direction of the court, after a trial had before the court, without a jury.

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

<p>Appeal from a judgment of the Municipal Court of the city of New York, tenth district, borough of Manhattan, in favor of the plaintiff in an action for personal injuries.</p>

Appeal by the defendant from a judgment of the Municipal Court of the city of Hew York, twelfth district, borough of Manhattan, rendered in favor of the plaintiffs, after a trial had before the court without a jury.

<p>Appeal by the plaintiff from an order sustaining the demurrer to the complaint made by the Municipal Court of the city of Hew York, thirteenth district, borough of Manhattan.</p>

Appeal by the plaintiff from a judgment of the Municipal Court of the city of Hew York, second district, borough of The Bronx, dismissing the. complaint before the plaintiff had rested.

<p>Appeal by the plaintiff from a judgment, entered in favor of the defendant in the Municipal Court of the city of Hew York, second district, borough of The Bronx, after a trial by the justice without a jury.</p>

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

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

Appeal by the defendants McDonald and Frank from a judgment rendered in the Municipal Court of the city of Yew York, tenth district, borough of Manhattan.

<p>Evidence — Medical expert.</p> <p>Where a medical expert, having testified that he could state with reasonable certainty what the nervousness of plaintiff, who was injured in a car collision, resulted from, upon being asked by the court to state it, replied “ Momentum and shock is possible to bring on this nervousness in a man”, a denial of a motion to strike out the answer is error calling for a reversal of a judgment in plaintiff’s favor.</p>

<p>Municipal Court — Jurisdiction — Amount involved — Remission of excess — Municipal Court Act, § 250.</p> <p>Where both the summons and the complaint in an action commenced in the Municipal Court of the city of New York demand judgment for $500 and interest, a denial of a motion to dismiss the complaint upon the ground of want of jurisdiction is reversible error.</p> <p>The provision of section 250 of the Municipal Court Act permitting a party to remit the excess if the sum found due “ exceeds the sum for which the court is authorized to enter judgment ”, applies only to cases where said court has acquired jurisdiction in the first instance.</p>

<p>New York city — Teacher of gymnastics in public school not an “officer” of the city—Appointment as attendance officer.</p> <p>A teacher of gymnastics in public schools of the city of New York, being a mere employee of the board of education, is not an officer of the city and therefore not disqualified from holding an appointment as attendance officer either Under the provision of the charter (section 1549) prohibiting the same person holding two city or county offices except as expressly provided by the charter, or under the provision (section 1533) forbidding city officers to become interested in the performance of a contract the expense, price or consideration-of which is payable from the city treasury.</p>

<p>Demurrer to amended, complaint.</p>

<p>Water and watercourses — Diversion — Storing in pond and selling the ice.</p> <p>An upper riparian owner of land hordering on a natural stream has no right, as against a lower riparian owner, to divert any portion of the waters to a pond upon his own land for the purposes of sale when formed into ice.</p>

<p>Motion on the minutes for a new trial, the complaint having been dismissed at the opening of the trial.</p>

Motioh by defendant to- dismisa complaint reserved until the coming in of the verdict, and. motion to set aside the verdict and for a. new trial.

<p>Trial — Struck jury — When motion granted.</p> <p>Where through departure from the terms of an agreement under which plaintiff, a holder of railroad bonds, had deposited its bonds with defendants, the members of a committee engaged in an endeavor to reorganize the railroad property upon which said bonds were a charge, they have incurred a liability to plaintiff the measure of which depends upon a jury’s estimate of the actual value of the railroad as a going concern and of the proper inference as to the proportionate amount which would make plaintiff’s loss good, the jury’s equipment of intelligence and of practical business experience should be of the best and, in the interests of substantial justice, a motion for a struck jury will be granted.</p>

<p>Pleading — Denial incorporated in defense — Action on note — Negotiable Instruments Law, §§ 52, 60 — Demurrer — Pleading usury — “ Defense ” as “ counterclaim ”.</p> <p>All denials in a defense are not surplusage or immaterial as to state a valid defense, it may be necessary to deny specific allegations of the complaint which would otherwise be admitted.</p> <p>The remedy of a plaintiff who cannot with safety demur to a pleading containing an immaterial allegation or denial of fact is to move to strike out such allegation or denial. The court should not be required to determine the matter upon demurrer.</p> <p>Under section 60 of the Negotiable Instruments Law an instrument if payable to order, is negotiated by the indorsement of the holder completed by delivery; and in an action by the indorsee of a promissory note so payable against the maker and payee, a denial that the note was ever duly negotiated for value, admits its delivery and indorsement; and a demurrer to a separate defense in which such denial is incorporated, as insufficient upon the face thereof, must be overruled although said defense is otherwise demurrable.</p> <p>An allegation in such defense “ that plaintiff is not a bona fide holder in due course of said note ” is a mere conclusion of law and subject to demurrer for insufficiency, it being impossible to determine therefrom which of the conditions, specified in section 91 of the Negotiable Instruments' Law, constituting a holder in due course, had not been complied with.</p> <p>An allegation in such defense “that said note was executed and indorsed without any consideration ” admits the allegation of the complaint that the payee defendant indorsed and delivered the note for value before maturity, and value having been given prior to the delivery of the note to plaintiff, he is a holder for value under section 52 of the Negotiable Instruments Law, and the fact that there may have been an indorsement without consideration is immaterial, and such allegation of defense is subject to demurrer for insufficiency.</p> <p>An allegation in such defense that the note before its delivery to plaintiff had no legal inception is a conclusion of law and is not helped by the immaterial allegation that the “transfer to plaintiff was made after maturity”, and the insufficient allegation “ at a rate of discount greater than legal interest and not in the ordinary course of business and is usurious and void” and a demurrer thereto for insufficiency will be sustained.</p> <p>The defense of usury to an action upon a promissory note must set forth the alleged usurious contract specifying its terms and the particular facts relied upon to bring it within the prohibition of the statute.</p> <p>In an action by a bona fide holder for value of a promissory note payable to order, an allegation of defense that said note was wrongfully converted and fraudulently delivered to plaintiff without the knowledge and assent of the defendants, or either of them, is a mere conclusion of law and subject to demurrer for insufficiency.</p> <p>In such action a paragraph of the answer beginning: “for a fifth defense and by way of counterclaim defendants reallege all the allegations herein set forth” and continuing “that by reason of the plaintiff fraudulently diverting said note from the purpose for which it was intended by obtaining possession of said note and wrongfully converting the same to his own use, without the payment of full value, less the legal discount, and preventing the lawful sale and discounting of said note for its face value, said railway company became insolvent and was foreclosed by due process of law, to the loss and damage of these defendants in the sum of five thousand ($5,000) dollars” must be tested as a counterclaim and as such is demurrable upon the ground that it does, not state facts sufficient to constitute a cause of action. The defendants are bound by their own definition of the answer and may not upon demurrer thereto, urge its sufficiency as a defense.</p>

<p>Stockbroker — Relationship with customer — Action for accounting — Fictitious transactions — Plaintiff entitled to judgment.</p> <p>The relationship between a stockbroker and a customer is a fiduciary one and an action lies for an accounting therein wherein the burden is upon the broker to show that his trust duties have been performed and the manner of their performance. The fact that other so-called accounts had intermediately been rendered would not deprive the customer of his right to a full and complete account of all the broker’s dealings on his behalf.</p> <p>Where in an action for an accounting of the dealings between a stockbroker and a customer there is no proof that plaintiff, who agreed to maintain a ten point margin, ever regarded the transaction save as one of legitimate brokerage wherein stocks were to be bought and sold according to order and defendant, in seeking to account for its dealings with plaintiff’s funds by certain alleged transactions in accordance with instructions, admits that no shares of stock were actually bought or sold for plaintiff but that it followed out a course of dealing by which it set off against plaintiff’s orders, reverse orders of other clients who desired to sell those stocks which plaintiff desired to buy, or vice versa, neither party to the alleged transaction owning a single share of the stock in question, defendant simply making bookkeeping entries in the clients’ accounts, the evidence clearly shows that the only thing done by defendant was to take plaintiff’s money, falsely represent that it had bought the stock and call for more margin, the plaintiff is entitled to judgment for the undisputed balance of his account disclosed upon the trial.</p> <p>Alleged agreements, printed upon the back of orders to buy or sell, signed by plaintiff or defendant’s employees on his behalf, so far as sought to be used to protect defendant in its unwillingness or inability to furnish the names of the clients whose orders were offset against plaintiff’s, held to be unreasonable, against public policy and void.</p>

<p>Action for partition. The opinion states the case.</p>

<p>Real property — Descent — Nonresident alien — L. 1845, ch. 115, § 4, as amended—L. 1877, ch. in, § 1 — Adverse possession — Death of life tenant.</p> <p>In 1882 a resident of this State died intestate, seized of certain real estate in the city of New York, leaving her surviving her husband (since deceased), her mother, and two' brothers and three sisters. Both of the brothers were nonresident aliens, one of whom died intestate in 1883 leaving him surviving his mother, who died in 1889, a resident of Ireland, and his brother and sisters aforesaid. One sister, the plaintiff herein, is a nonresident alien, another sister for some time prior to the death of her sister, the intestate herein', was and now is a resident of the United States. The remaining sister became a citizen of the United States in 1867 and is now a resident of the United States. In an action for partition, held: That upon the death of the intestate sister, the inheritance descended to her mother for life, with remainder to her brothers and sisters in equal undivided one-fifth shares, but that her male heirs could not hold their shares as against the State, not having filed the deposition provided by the statute (Ir. 1845, ch. 115, § 4, as amended L. 1875, ch. 38) which applies to both resident and nonresident aliens.</p> <p>That the interest of the living nonresident brother in' said premises conveyed by him to a sister and defendant herein, legally vested in one to whom she in turn conveyed the same (L. 1877, ch. Ill, § 1).</p> <p>That the interest of the nonresident brother who died in 1883, at which time there was no statutory provision authorizing either a nonresident or resident alien, or a citizen, to take by descent from a nonresident alien who had himself acquired title by descent and not by purchase, became the subject of absolute escheat by reason of his dying a nonresident alien owner of an escheat acquired by descent, and vested at once in the People of the State of New York.</p> <p>That adverse possession did not begin to run against the remaindermen until the death of the life tenant and was not available as a defense to an action for partition brought in 1905.</p>

<p>Demubebb to complaint.</p>

<p>Application to restore the relator to the position of inspector in the police department of the city of New York.</p>

<p>Tax Law, § 253 — Certiorari to review for inequality — Motion to quash.</p> <p>Where upon certiorari to review an assessment, under section 253 of the Tax Law, it appears that upon the relator’s application to the tax commissioners for a reduction of the tax upon Ms property, but one instance of alleged inequality was set forth, the writ will be quashed on motion.</p>

<p>On the second Monday of January, 1904, the relator, a resident of Hewark, H. J., had invested in the limited partnership of Harrison & Smith, a firm of Hew-York stock brokers, the sum of $100,000, as special capital. The commissioners of taxes and assessments assessed the entire amount of this special capital as capital invested in business in the city of New York by a nonresident. Relator sought to deduct indebtedness of $25,000 upon open accounts and $50,000 upon notes upon the ground that all of said indebtedness was to citizens of the State of New York and incurred in the usual and due course of business and not for the purpose of evading taxation under the laws of the State of New York. The petition of the relator also alleged that on the second Monday of January he had no other personal property subject to taxation either within or without the State of New York, excepting the amount of said special capital and $1,925 in cash deposited in a bank in the city of New York. A motion was made to quash or supersede the writ of certiorari granted upon said petition upon the ground that the petition failed to show that the assessment was illegal.</p>

<p>Demubbeb on the ground that the complaint does not state facts sufficient to constitute a cause of action.</p>

<p>New York city — Anthony avenue improvement — Assessment for benefit — Public service corporations not subject to.</p> <p>The fundamental principle which underlies an assessment for benefit supposed to accrue from an improvement in widening a street, is that the property assessed is to be directly benefited and enhanced in value by the improvement, so that the assessment will represent the difference between the value of the property before the improvement and its value after. No assessment can be lawfully made upon property not actually benefited by the improvement and an assessment obviously in excess of any possible enhancement in value cannot be upheld.</p> <p>In a proceeding to acquire land necessary for the widening of Anthony avenue in the city of New York the intangible right of a street railway, electric light, telephone, or gas supply corporation to maintain its equipment, such as rails, wires and pipes by which its franchise is operated in- and upon such street being of precisely the same value whether the street be wide or narrow, and being from its nature incapable of direct enhancement in value as a result of the improvement, and its definite value treated as a fraction of a general system, not being susceptible of anything like exact ascertainment, such corporation is not subject to assessment for benefit within the assessment area.</p>

<p>Pleading — Admissions hy demurrer — Stockholder’s action — Depleting assets of corporation — Fraud and collusion with hoard of directors hy holder of majority stock — When demand that directors bring action unnecessary — Bight of stockholder to sue.</p> <p>A demurrer to a complaint admits not only the direct allegations thereof but also all facts which are argumentatively or inferentially alleged.</p> <p>Where the complaint in an action by a stockholder of a power company against it, a development company and two individuals to compel the other defendants to restore to the power company certain of its stocks and bonds alleged to have been illegally appropriated without consideration or for an inadequate consideration, fairly shows that the individual defendants as the practical owners of the development company which with them owned over two-thirds of the stock of the power company, fraudulently and eollusively caused certain contracts between the two companies, relating to the disposition of an issue of mortgage bonds of the power company on increasing its- capital stock, to he canceled and the development company relieved of ail obligations thereon, leaving stock of the power company which had been turned over to it under said contracts, either in its hands or in the hands of the individual defendants without consideration, and was held, used, and voted to control the business and operations of the power company, and was so used for the election of a board of directors of said company subservient to the dominion and dictation of said individual defendants and that the power company has been depleted by such disposition of its bonds and stock and other valuable assets by reason of such fraudulent and collusive acts, dominion and dictation with and over the directors of said power company, a demurrer thereto for insufficiency will be overruled.</p> <p>It appearing from the complaint that the individual defendants still control the power company through their majority of the stock and through the same directors, no demand upon the directors of the company to bring the action was necessary.</p> <p>In such case, a court of equity will grant relief to the plaintiff who became the owner of stock in the power company, for Value, in the regular course of business thonarh after some of the alleged wrongs had been committed.</p>

<p>Appeal from, a decision of the superintendent of the poor of the county of Onondaga, in which he determined that the legal settlement of the poor person was in the town of Oamillus and not in the town of Geddes in said county.</p>

<p>Motion by the defendant to open a default and to vacate a judgment, and for an order of restitution of money obtained under the judgment.</p>

<p>Appeal from a judgment of the City Court of the city of Yew York, entered in favor of the plaintiff, after a trial -without a jury.</p>

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

<p>Master and servant — Illness of servant — Discharge—Sufficiency of complaint — Allegation excusing nonperformance.</p> <p>An employer is not bound to wait an unreasonable time for an employee, under contract for the rendition of personal services, to recover from an illness, and in general the question of what is an unreasonable time is one of fact.</p> <p>Where the complaint in an employee’s action for discharge from employment alleges that when plaintiff had recovered from an illness which had incapacitated him from working for two weeks, and returned and offered to go on with his work, defendant “told him to call on the following Friday to resume his employment ”, it sufficiently pleads a waiver of any supposed breach arising from plaintiff’s enforced absence from work, and he may not be discharged by reason thereof.</p> <p>In such action, plaintiff may allege his illness as an excuse for the nonperformance of the contract in full on his part.*</p>

<p>Money had and received — Action to recover money obtained by fraud of third person — Demand evidence of good faith.</p> <p>Where defendant received plaintiff’s money without consideration in consequence of the fraud of a third person, the plaintiff is entitled to its immediate return, and it is no defense that defendant cannot be restored to his original position.</p> <p>In an action for money had and received, to recover the amount, after demand upon defendant therefor, evidence as to his good faith is inadmissible.</p>

<p>Appeal by the plaintiff from a judgment in favor of the defendants, rendered in the City Court of the city of New York.</p>

<p>Pleading — Counterclaim to counterclaim stricken out — Remedy of plaintiff.</p> <p>A counterclaim to a counterclaim is unauthorized under section 614 of the Code of Civil Procedure.</p> <p>Where the answer to a complaint for breach of a contract of employment sets up a counterclaim for money advanced, plaintiff may not reply with a counterclaim for services rendered, but should move for leave to amend his complaint. The reply will he stricken out on motion.*</p>

<p>Replevin — Possession — Defendants’ admissions.</p> <p>That defendants in replevin, admit on the trial that at the time of the commencement of the action,' the property in question was stored in their name, justifies an inference that they controlled its possession.</p> <p>Where defendants in replevin are in any way concerned in the wrongful sale of the property in question, they are liable even if they had not possession of 'the property.</p>

Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, twelfth district, borough of Manhattan, in favor of the defendants in an action for penalties for refusing to allow the plaintiff an inspection of the stock book of the corporation, as provided by section 53 of the Stock Corporation Law.

Appeals from a number of judgments rendered in favor of the various plaintiffs against the defendant Street Railway Company by the Municipal Court of the city of New York.

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

<p>Appeal from a final order in summary proceedings rendered in the Municipal Court of the city of New York, sixth district, borough of Manhattan.</p>

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

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

Appeal by the defendant from a judgment rendered in favor of the plaintiff in the Municipal Oourt of the city of ¡New York, ninth 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, tenth district, borough of Manhattan.

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

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

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

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

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

<p>Appeals by the defendants from orders denying defendants’ motions to set aside judgments rendered in favor of the plaintiff in the Municipal Court of the city of Hew York, tenth district, borough of Manhattan.</p>

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

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

Appeal by the defendant from judgments rendered in favor of the respective plaintiffs in the Municipal Court of the city of Hew York, third district, borough of Manhattan,

<p>Horse racing — Betting — Recovery of money lost — Demand.</p> <p>In an action to recover money lost at betting on a horse race, the complaint need not allege a demand for the return of the money.</p>

<p>Payment — Debtor’s promissory note — Extension of time of payment — Consideration.</p> <p>An indebtedness is not merged or extinguished by the creditor’s taking his debtor’s note therefor.</p> <p>A" promise to extend the time of payment of a promissory note is not binding unless supported by sufficient consideration.*</p>

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

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

Appeal by the defendant from a judgment rendered in favor of the plaintiffs in the Municipal Court of the city of Mew York, eleventh district, borough of Manhattan.