Volume 47 — New York Miscellaneous Reports

Motion by defendant to set aside the verdict in an action brought by the People to recover a penalty for the violation of section 80-b of article V of the Agricultural Law.

<p>Bill of particulars — When demand therefor a nullity — Motion to strike out.</p> <p>An action to recover the amount of certain assessments, made by a casualty association against a member, is not an action upon an account, and á demand for a bill of particulars is a nullity and may properly be disregarded.</p> <p>In such case, a motion to strike out such demand as of right, will be granted although heard at a date subsequent to the expiration of the ten days mentioned therein.</p>

<p>Action by surety against principal on a bond, after payment. The opinion states the case.</p>

<p>Aotioií in equity. The opinion states the case.</p>

<p>Searches and seizures — Letters of person arrested — Action to compel return — Injunction.</p> <p>It is the duty of the police to search the person of one lawfully arrested, the room or place in which he is. arrested, and any other place to which they can obtain lawful access, for articles that may be used in evidence to prove the charge upon which the arrest is made.'-</p> <p>Where the object of an action against a district-attorney is to require him to deliver back to plaintiff certain letters received by him and Iris wife and found upon search of their room and effects at the time of their arrest and seized upon the ground that they tended to prove the accused guilty of the crime charged in the indictment upon which they are held for trial, and the complaint alleges that the indictment charges no crime, and it does not sufficiently appear that the letters do not furnish evidence of their guilt of the crime charged, a motion for a mandatory injunction pending the suit, will be denied.</p>

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

<p>Trial — Action in equity — Motion for judgment.</p> <p>A motion for judgment in an equity action constitutes a part of the trial, and may not be made except at a term of court in the county of the venue.</p>

<p>•Pbo'Ceedistg for judicial construction of will.</p>

<p>Partnership — Defendant not shown to be a partner—Goods consigned to factor — Action for purchase price — Evidence — Erroneous ruling as to defendant’s liability.</p> <p>Defendant by written agreement was constituted and appointed sole factor and selling agent of a firm which agreed to consign to him, for a sale upon commission, an entire stock of goods then held and owned by the firm, or thereafter owned by it, during the continuance of the agreement. All sales of goods so consigned were to be made by him at the risk of the firm and invoiced to purchasers in his name. He was to purchase and own the books of account used in the business and have the exclusive supervision and control of the consigned goods, supervise • all credits, take out insurance in his own name and in return he agreed to advance to the firm not to exceed sixty per cent of the net cash value of the consigned goods in his possession and seventy-five per cent of the net value of the outstanding accounts for sales. A sign was placed at the entrance of the firm’s premises reading: “James Talcott, Annex. Worthington, Smith & Company Department ”. But defendant was given no voice as to the character or quantity of the goods to be purchased by the firm, nor was he to share in the profits as such or bear any of the losses. Held, that defendant was not a partner; that the apparently wide powers and control given to him over the goods and their procceeds were only such as were necessary to preserve and insure his liens for money advanced upon the goods to be sold.</p> <p>In an action against defendant for goods sold to the firm, memoranda slips provided or permitted by defendant to be used for the purpose of selling the goods and appropriately framed for that purpose, but which sometimes were used by the firm on the return of goods to the seller, are inadmissible unless it is made to appear that such use of them by the firm was with defendant’s consent and knowledge.</p> <p>A ruling that if defendant held himself out as principal debtor, or if he was so held out by the firm with his authority, consent or connivance, he was liable for the amount of the sales, even though it did not appear that the seller was actually misled thereby into selling the goods and extending the credit, is reversible error.*</p> <p>* See Thompson v. First Nat. Bank, etc., 111 U. S. 529; Central City Savings Bank v. Walker, 66 N. Y. 424.</p>

<p>Appeal from a judgment of the City Court of the city of Yew York, rendered in favor of the plaintiff after a trial before the court and a jury, and also from an order denying defendant’s motion for a new trial.</p>

<p>Appeal by the plaintiff from a judgment of the City Court of the city of New York, rendered in favor of the defendant, and also from an order denying plaintiff’s motion for a new trial.</p>

<p>Appeal by the plaintiff from a judgment of the City Court of the city of New York dismissing the complaint at the close of the plaintiff’s case.</p>

<p>Appeal — Order did not specify grounds — Presumption — Action for broker’s commissions — Apparent admission of liability — Right to explain.</p> <p>Where an order setting aside a verdict and granting a new trial does not specify the particular grounds upon which it was granted, this court is bound to assume on appeal from such order that it was granted upon exceptions taken upon the trial. (Rule 31 of the General Rules of Practice.)</p> <p>Where, in an action for broker’s commissions upon the sale of real estate, there is received in evidence on plaintiff’s behalf and in corroboration of his testimony that he had been employed to make and had made the sale, a paper signed by defendants after the purchaser had agreed to take the property, wherein they agreed to pay plaintiff’s commissions, and the defense is that such agreement was in fact made with the purchaser, at whose request plaintiff’s name was inserted therein, the defendants are entitled to show the circumstances attending the making of the apparent admission of plaintiff’s story, though the transaction did not take place in his presence.</p>

<p>Trial — Right to go to jury after motion to direct verdict.</p> <p>Where á motion to direct a verdict is made hy both parties and defendant’s motion is denied, a request by plaintiff to go to the jury upon the only question in the case, made before any verdict was directed or recorded, is in time and a denial of such request is reversible error.</p>

<p>Practice — “ Decision in writing ” — Code, §§ roro, 1021 — Order overruling demurrer.</p> <p>An order overruling a demurrer and directing the entry of an interlocutory judgment is a sufficient “ decision in writing ” to>. meet the requirements of sections 1010 and 1021 of the Code of Civil Procedure, though the more correct practice is to make and file a decision which shall be such in form as well as in effect.</p>

<p>Appeal by defendants from a judgment of the Oily Court of the city of Few York.</p>

Appeal by plaintiff from a judgment of the City Court of the city of ETew York in favor of defendant. The opinion • states the case.

<p>Appeal by the plaintiff from a judgment entered in the City Court of the city of New York, dismissing the complaint.</p>

<p>Carrier — Misdelivery of goods — Insufficiency of answer — Hew matter—Code, § 500 (2).</p> <p>An answer in an action against a carrier for misdelivery of a case of goods alleging that at the same time that it was placed in storage, after due notice of its arrival to H., there were two other cases in its storehouse marked in the same manner as the</p> <p>. case referred to in the complaint and that when H. subsequently presented a bill of lading for two cases defendant without any negligence on its part delivered to him two of the said three cases and subsequently pursuant to notice redelivered the third case to its connecting carrier without a further allegation that plaintiff consigned the other cases, or had anything to do with them, or a statement of facts from which it might be inferred that plaintiff was the consignor of the other cases or was in any way connected with the mark upon them, is insufficient in law.</p> <p>The bill of lading annexed and referred to in the answer showed that the goods were consigned to the order of a person other than H. but there was no allegation that the consignees had indorsed the bill of lading presented by H. or that he was entitled to receive the goods. Held, that the pleading did not meet the requirements of section 500 (2) of the Code of Civil Procedure.</p>

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

Appeal by the defendants' from a judgment of the City Court of the city of New York, entered upon the verdict of a jury in favor of the plaintiffs and from orders amending the judgment, and bringing in a third defendant.

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

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

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

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

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

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

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

<p>Bankruptcy — Confirmation of composition same as discharge — Action on claim — Revival by new promise — Personal Property Law, S 21 (5).</p> <p>An order of confirmation of a composition in bankruptcy operates as a discharge and is sufficiently proved by a certified copy thereof.</p> <p>In this State (Personal Property Law, § 21 [5], L. 1897, ch. 417), the revival of a debt discharged in bankruptcy must be by a new promise in writing in which there must be a clear expression of intention on the part of the debtor to bind himself to the payment of the debt, and letters barren of anything beyond an admission of a moral obligation are insufficient.</p>

<p>Bank — Insolvent — Set-off in action by receiver.</p> <p>In an action by a receiver of an insolvent bank to recover upon a discounted note the defendants may not offset a claim assigned to them after the bank suspended payment.</p>

Appeal by 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.

<p>Appeal from a judgment of the Municipal Court of the city of Mew York, tenth district, borough of Manhattan.</p>

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

<p>Sale — Action for purchase price — Authority of agent denied — Judgment for defendant reversed.</p> <p>Where, in. an action to recover the purchase price of certain diamonds, alleged to have been sold and delivered to defendant’s firm, it appeared that all the transactions were conducted through one H. connected with the firm but whose authority to make the purchases alleged was denied but no satisfactory explanation was given by defendant why it gave plaintiff its check for $110 when, according to its claim, he owed the firm nearly $300, and other documentary proof discloses a peculiar condition of affairs lacking explanation and defendant fails to call H. as a witness, though he could have been produced at the trial, and it was not shown that he was a defaulter or hostile to defendant, a judgment in defendant’s favor will be reversed in the interests of justice.</p>

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

<p>Appeal from a judgment entered upon a dismissal of the complaint in the Municipal Court of the city of Mew York, eleventh district, borough of Manhattan.</p>

<p>Appeal by defendant from a portion of an order made by the justice of the • Municipal Court of the city of Yew York, twelfth district, borough of Manhattan, granting defendant’s motion.</p>

Tbial of an issue of law raised by a demurrer to the complaint by the defendant in her individual capacity that it does not state facts sufficient to constitute a cause of action against her individually. Action by tenant against landlord to recover the value of buildings erected on the demised preanises by the tenant during the lease.

Suit to restrain the defendant from maintaining and using an elevated railroad structure 30 feet wide in the middle of Atlantic avenue^ Brooklyn, in front of the plaintiff’s land and building at the southeast corner of Atlantic and Balph avenues, being about 45 feet on Balph avenue and 232 feet on Atlantic avenue.

Suit in equity to make the defendant pay a judgment for $3,000 recovered by the plaintiff against the Brooklyn Wharf & Warehouse Co. (a corporation) for damages for personal .injuries by negligence. The Brooklyn Wharf & Warehouse Co. became insolvent, did not pay the judgment, and had been dissolved: by a judgment of this court before this suit was brought. ' This defendant insured the said Brooklyn Wharf & Warehouse Co. against damage for personal injuries caused by it.

Trial of a demurrer to a complaint in an action for libel on the ground that it does not state facts sufficient to> constitute a cause of action. The alleged libel is as follows: “ BLACK HARD OR HIS BACK. Janitor Lamberti Thought it Was a Curse Instead of a Wicked Joke.

<p>Action on a fire insurance policy on a building. The plaintiff is the assignee of the cause of action.</p> <p>The fire occurred February 9th, 1904. Previously, viz., on July 16th,'1903, the insured had entered into a contract of sale of the land on which the building was, and $15,000 was paid on .account of the purchase price. There was a mortgage of $44,463.60' on the property which title was to be taken subject to. By the terms of the contract the deed was to be delivered in one year, viz., on July 16th, 1904, and the balance of the purchase price paid. The contract provided, however, that the purchaser might meanwhile go into possession of the land, at any time after January 1st, 1904, and build on it, as follows:</p> <p>“ It is hereby stipulated and agreed between the parties hereto, that the party of the second part shall have the right to erect and occupy a building or buildings upon the real property, herein contracted to be conveyed, at any time prior to the passing of the title hereunder, after January 1, 1904, and the buildings so erected on the said real property shall belong to the party of the second part and shall not be, or be deemed to be, annexed to the freehold, and such buildings may be removed by either party hereto, in case of a breach in the conditions of this contract; and the party of the second part shall have the right to occupy any part of the real property hereunder and before passing title, as tenant of 'the party of the first part, without any pay or rent thereof, and possession of the said real property shall be so given to the party of the second part on the- expiration of the existing tenancy on January 1, 1904.”</p> <p>It also provided that the purchaser should pay the taxes and assessments levied after the delivery of the contract, and the interest accruing on the said mortgage on the land.</p> <p>The. purchaser assigned the contract to the plaintiff, and it was given possession about January 1st, 1904, in accordance with the contract’s terms, and afterwards continued in, possession and took the deed on the contract day.</p> <p>The defendant had no notice or knowledge of the contract of sale or change of possession.</p>

<p>Action by wife against husband for support.</p>

Action by an infant under 14 years of age for damages for injuries by the machinery in a factory where he was employed. The court directed a verdict for the plaintiff, only leaving the jury to assess the damages, to which the defendant excepted. Motion on the minutes by the defendant for a new trial.

• Motion to restrain the adoption, execution and filing 'and the effectuation by the hoard -of directors of the Equitable Life Assurance Society of a proposed amended charter. The opinion states the case.

<p>New York city — Ordinance granting franchise to use streets — Section 74 of the Charter — Eefusal to refer proposed ordinance to board of estimate — Publication of ordinance — “ First reading ” within meaning of section 74 — Issue of fact as to procedure, etc.— Mandamus.</p> <p>Under section 74 of the Greater New York Charter it is the absolute duty of the board of aldermen, on the introduction and first reading of a proposed ordinance granting a franchise to lay, erect and construct suitable wires or other conductors, on, over or under the streets of the city, in the borough of Manhattan, for conducting and distributing electricity, to refer the proposed ordinance to the board of estimate and apportionment in order that the latter board may make inquiry as to the money value of the franchise, the adequacy of the compensation to be paid therefor and suggest terms for the granting of the franchise, which shall be conclusive as a condition of the grant.</p> <p>The fact that the board of aldermen, after examination by the board of estimate and apportionment into the advisability of such an ordinance, would have the power to refuse the franchise, does not justify the board of aldermen in refusing to take the preliminary steps in the matter of referring the ordinance should their conclusion be that the proposed franchise be refused, upon a claim that no such franchise as sought should ultimately be made, in view of the expected adoption of some policy whereby the municipality would take into its own hands the ownership and control of the electric lighting facilities.</p> <p>While the position of the clauses of section 74 of the Greater New York Charter, relating to the adoption and first reading of a proposed ordinance granting a franchise 'or right to use any of the city streets in the borough of Manhattan, is such that the matter of publication, though first alluded to, is expressed to be a condition which precedes the final adoption of the ordinance, the publication must reasonably have been intended to come after, not before, the board of estimate and apportionment is called upon to give its advice.</p> <p>Section 74 of the Greater New York Charter not prescribing the manner in which an ordinance granting a franchise or right to use any of the city streets in the borough of Manhattan shall be brought to a first reading, the situation depends upon whether there was a first reading or not, in accordance with the usual and orderly procedure of the hoard of aldermen and with their understanding of the fact, agreeably to the rules of procedure adopted by them, and where an issue of fact as to the procedure which is to lead to the orderly bringing of such an ordinance to a first reading, upon -which the right to a peremptory writ of mandamus directing the board of aldermen to refer to the hoard of estimate and apportionment .an ordinance purporting to grant consent, permission and authority to lay, erect and construct suitable wires or other conductors on, over or under the streets of the city of New York in the borough of Manhattan for conducting and distributing electricity, materially depends, it cannot be held as "matter of law that there was a first reading and only an alternative writ may issue.</p>

<p>New York city — West Farms road — Street opening — Well on part „ of land taken — Owner used water for business purposes — New well as substitute — Burden of proof — Conditions under which analysis of water made — Change of grade — Change in position' of building — Building erected after change of grade — Different award to adjoining parcels of land — Public service corporations not subject to assessment for benefits.</p> <p>Where upon a part of the land taken for street and sewer purposes there is a well fed by an underground stream which is available for another well, sunk upon a part of the land not taken for the street, and the question is whether the water from the new well is of such a quality as to be available for the peculiar uses of the land owner’s gas plant as a substitute for the water drawn from the old well, the owner claiming that the new well is so affected by the seepage of tide water as to render its use unprofitable, and eliminating comparative tests by analysis of the water drawn from both wells, there is a finding that the new one was an available substitute for the old, the burden of proof is upon the city to show that a new well would in fact be an available substitute for the well taken, and an award of damages to the mere cost of digging a new well at some place upon the owner’s remaining land rather than to the owner’s expense in the purchase of water from others, is erroneous.</p> <p>Where water drawn from both wells and subjected to analysis was not shown to have been taken from the respective wells under similar tidal conditions, a refusal to make a finding based upon such evidence is correct.</p> <p>In a proceeding to acquire land for street purposes no award of damages can be, made to an owner whose land is affected not by the change resulting from the grade of the new street but by grade changes of an intersecting street upon which the land abuts. '</p> <p>A change in the position of a building upon another street to meet a change of grade therein after the grade of the new street was established, negatives the presence of damage and the motives of the owner, which induced the change of the building, are immaterial upon that question.</p> <p>The owner of a building, erected upon the line of the street after a change of grade therein was established by the public authorities, is not entitled to an award of damages because of such change of grade.</p> <p>Where it appears that the commissioners of estimate and assessment viewed two parcels of land and the record discloses nothing inconsistent with their conclusion that both were different in character, so far as the structural condition of the buildings in relation to the grade affected the question of damage which accrued to either, the court cannot say that the award as to one of the parcels is erroneous in principle, upon a claim that it is inadequate as compared with the award for the other and adjoining parcel.</p> <p>The property of public service corporations, consisting of the equipment and fixtures, in the soil of the street within the area of assessment and used by them and the rights, privileges and franchises enjoyed by them and which have been availed of for the purpose of placing this kind of property in the street, is not the subject of assessment for benefit.</p>

<p>Motion for injunction pendente lite, restraining the defendants from removing or interfering with advertising signs, news stands and automatic vending and weighing machines in the stations of the rapid transit railroad operated by the plaintiff.</p>

<p>Taxation — Personal property — Non-resident — Jurisdiction — Appearance before taxing officer — Certiorari — Tax Law, § 8 — Presumption of continued residence.</p> <p>Where the right to assail an assessment for personal taxes is founded upon the taxing officer’s lack of jurisdiction, because of the non-residence of the relator, the latter’s appearance before the taxing officer, for the purpose of presenting proof of the invalidity of the assessment, is not necessary to entitle him to relief by certiorari.</p> <p>Where upon certiorari to review an assessment for personal taxes in the city of New York for the year 1904, the facts show that the relator, at the time of the assessment, was a resident of New Jersey, where he voted in 1903 and was assessed for personal property in 1904, the assessment against him should be vacated, although he was also the lessee of a house in the city of New York which he and his family occupied during the winter months.</p> <p>The provision of the Tax Law (L. 1896, ch. 908, § 8) that “ When a person shall have acquired a residence in a tax district, and shall have been taxed therein, such residence shall be presumed to continue for the purpose of taxation until he shall have acquired another residence in this state or shall have removed from this state,” founds the presumption of residence upon two things: The acquirement of a residence and an actual taxation, and a presumption of residence from the mere payment of a tax, or from the fact of taxation, does not obtain, and no presumption of residence in the city of New York arises from the fact that the relator paid the tax therein in 1903 without reference to the circumstances of such payment, and where it appears that the relator, assessed in the city of New York for the year 1903, went before the taxing officer, asserted that he was a resident of New Jersey and stated: “ I live some of my time in the city of New York and I am quite willing to pay something for' the maintenance of the city,” the payment of the tax, in the circumstances, cannot he taken to establish the fact of the relator’s residence in the city of New York for the year 1903, and the assessment should be stricken from the roll.</p>

<p>Motion to vacate order in habeas corpus proceedings, awarding the custody of a child to the relator.</p>

<p>Aotioit for partition.</p>

<p>Action for ejectment, tried by the court, a jury trial having been waived.</p>

<p>Usury — Defense to promissory note — Separate agreement for contingent benefit beyond legal interest — Representation that such agreement is valid — Estoppel.</p> <p>Whenever a lender stipulates for a contingent' benefit beyond the legal rate of interest and has the right to demand the repayment of the principal sum with the legal interest thereon, in any event, the contract is in violation of the statute prohibiting usury and void</p> <p>Where upon the renewal of a non-usurious loan, made by a client to his personal attorney, the latter gives to the client his promissory note, and at the same time by a separate agreement, made between the parties to the note and drawn by the attorney, the lender is given the option to take certain shares of corporate stock deposited as collateral security to the note and dividends thereon in lieu of the note at any time before or after maturity, the entire transaction is usurious and the renewal note is void in the hands of a holder with notice.</p> <p>But where in an action upon said note it appears that the payee before taking the separate agreement, was informed by his attorney that it was all right, representing in effect that the agreement was valid in law, the attorney as maker of the note is estopped from pleading usury as a defense thereto.</p>

<p>Action to rescind a contract to purchase real estate and to recover earnest money and expenses of searching title on the ground that the title is unmarketable.</p>

<p>Criminal law — Inspection of minutes of grand jury — Control of court over grounds of motion — Preliminary hearing before magistrate — Remedy for failure to indorse names of witnesses upon an indictment— When inspection will he granted.</p> <p>The practice of preserving a written record of the proceedings before grand juries, including minutes of the testimony, did not prevail at common law.</p> <p>The first statutory provision in this State (2 R. S. [1st ed.j 724, § 30) for the preservation of the minutes of the proceedings of grand juries and of the evidence given before them, kept by one of their number as clerk, was designed.principally as an aid and convenience to the district attorney.</p> <p>Though such enactment remained in force until 1881, when it was substantially incorporated in section 250 of the Criminal Code, and courts assumed to have such control over the minutes of grand juries as to permit an inspection thereof by a defendant under indictment, no reported case discloses that such inspection was granted prior to the statute (L. 1885, ch. 348) authorizing a stenographic record of the testimony given before grand juries.</p> <p>Before the enactment of said- chapter 348 of the Laws of 1885, the first statutory recognition of the court over the written record of the proceedings before grand juries and which authorizes the appointment in each of certain counties of the State, including the county of New York, of a stenographer to “take the testimony introduced before such grand juries, and to furnish to- the district attorney of such county a full copy of all such testimony as such district attorney shall require, hut he shall not permit any other person to take a copy of the same, nor of any portion thereof, except upon the written order of the court after hearing the said district attorney,” and further provides that “All of the said original minutes shall he kept in the custody of said district attorney, and neither the same nor a copy of the same, or of any portion of the same, shall be taken from the office of said district attorney, except as above provided ”, the courts had and since have uniformly declared, that inspection is accorded as matter of discretion and not of right, and with this exception, every rule of secrecy surrounding the testimony given before grand juries which prevailed at common law is preserved in the statutes.</p> <p>The sole ground upon which a motion for the inspection of the minutes of a grand jury can he entertained is to enable a defendant under indictment to move to set it aside upon one or more of the grounds specified in section 313 of the Criminal Code. Such inspection may not be granted to enable the defendant to prepare for trial.</p> <p>The court has inherent power to set aside an indictment only where the indictment is found without evidence or wholly upon illegal and incompetent testimony and where the indictment is based in part upon the testimony of the defendant, compelled to be a witness in violation of his constitutional rights.</p> <p>Whether or not there has been a preliminary hearing before a magistrate on the charge against a defendant, and upon which he has been indicted, can have no legitimate bearing in the determination of his motion for an inspection of the minutes of the grand jury which.found the indictment.</p> <p>The remedy for failure to indorse upon an indictment the names of witnesses testifying before a grand jury, upon the examination of the charge, is an application by the defendant, at any time before trial, for an order directing the names of such witnesses, as they appear upon the minutes of the grand jury, to be furnished to him forthwith and not by a motion for the inspection of the minutes.</p> <p>That a defendant under indictment is ignorant as to the testimony, upon which the grand jury acted, asid believes or surmises that such testimony is insufficient in law,' furnishes no basis for the exercise of the court’s discretion to permit an inspection of the minutes.</p> <p>Where upon a motion for an inspection of the minutes of the grand jury the defendant, in his affidavit, states that some of the matters referred to in the indictment were under investigation by a previous grand jury, before which he appeared and gave testimony, and that he believed that the stenographer to the grand jury, as a witness, read to it the testimony given by defendant to the previous grand jury and it is conceded that said stenographer testifiecl to some of the statements made by defendant to the prior grand jury, defendant is entitled to know with certainty just what the stenographer testified to and a motion for an inspection of the minutes will be granted for that purpose.</p> <p>Where a defendant under indictment had been subpoenaed before the grand jury and gave testimony concerning the matters alleged in the indictment, he is entitled to know just what the grand jury minutes show in that regard, in order, if so advised, to move to set aside the indictment upon the ground that he was compelled to be a witness against himself.</p>

<p>Application to quash a writ of certiorari.</p>

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

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

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

<p>Demurrer to complaint. The opinion states the case.</p>

<p>Contract — For sale of real estate — Inability to give marketable title to part — Vendee’s equitable lien for amount paid.</p> <p>Where defendant contracted to convey to plaintiff a lot of land containing a frontage on Second avenue in the city of New York of forty-two feet six inches, beginning at the northeasterly corner of Second avenue and St. Mark’s place, commonly known as Eighth street, and the buildings on the property intended to be conveyed are thirty-four feet six and one half inches in width on Second avenue, and is unable for want of title in him to convey an open space between the southerly line of the southermost building and the sidewalk of St. Mark’s place, eight feet in width, separated from the sidewalk by a coping or fence, the plaintiff is entitled to recover the amount paid upon the execution of the contract for the sale of said property and to establish and enforce a vendee’s lien therefor.</p> <p>The most that defendant could convey was title to thirty-four feet six inches with an easement over the eight-foot strip which would permit of its use for courtyard purposes and prevent its use for any other inconsistent purpose.</p> <p>That plaintiff contracted to take the property “ subject to courtyard restrictions and covenant as to buildings ” necessarily implied that she was to receive title in fee.</p> <p>A provision in the contract of sale that if defendant could not make marketable title he was to repay the amount paid him by plaintiff without further cost or damage merely limits the amount of a recovery therefor and does not foreclose plaintiff of her right to maintain an equitable lien as vendee.</p>

<p>Contract — Quasi partnership — One partner formed partnership with third person to continue same business — Rights of other party to first agreement — Accounting in equity.</p> <p>Where plaintiff advanced to one. L. $10,000, the use of which was strictly limited to the establishment and carrying on of a specified business under L.’s name, upon an agreement which was to continue five years, plaintiff to be paid one-quarter of the net profits instead of interest on the investment, provision being also made that upon the death of L. or the expiration of the five years the amount advanced, or so much thereof as remained in the business, should be paid back to plaintiff with a proportionate share of the profits due and unpaid, the relationship between the parties is in the nature of a quasi partnership or joint adventure.</p> <p>About a year after the making of said agreement L. and defendant S became equal partners for the purpose of carrying on the same business under their joint names, for a period of five years. Plaintiff contributed $15,000 in cash to the capital of the business and L. in addition to the cash payment of $5,000 to him by S. for one-half interest in the good-will of the business, contributed to its capital all the stock on hand and other assets of the business previously carried on by him at an agreed valuation of $10,000 “ subject to the payment of the liabilities ” of the business previously carried on by him, such valuation being estimated as the value of his contribution over and above said liabilities. Although the period fixed by the agreement between plaintiff and L. and the copartnership between L. and S. both expired long before L.’s death, there was no settlement or liquidation but the respective relations established by the agreements continued. It did not appear that the firm ever absolutely assumed the indebtedness of L. to plaintiff but some years prior to L.’s death some sort of an agreement was arrived at that plaintiff’s purchases from the firm from time to time should be offset by the amount due to him from L. so far as L.’s interest in the firm would pay them and it was a fair inference from the testimony that plaintiff’s somewhat large purchases were made in reliance upon such arrangement.</p> <p>Held, that plaintiff, under his agreement with L., was entitled to recover directly from S., the surviving partner, and not from L.’s personal representative in the usual course of administration, whatever might be found to have been the value of L.’s interest up to the amount due from L. for the advance of $10,000 to him and the agreed proportion of the profits, and that the amount thus due could only be ascertained by an accounting in equity.</p> <p>That the attempted appraisement of the firm’s assets and the sale of the good-will, made without notice to the plaintiff, did. not conclude him and should be set aside and declared ineffective and of no avail.</p> <p>That under the course of business long acquiesced in by the firm, plaintiff was entitled to set off against a claim against him for merchandise, purchased before L.’s death and thereafter assigned to a third person by the surviving partner, the amount that might be found due to him under his agreement with L. and that the action on said claim should be stayed until the conclusion of the accounting, upon plaintiff giving proper security for the payment of any sum found due from him to the firm. ------</p>

<p>Greater New York Charter—Section 612 — Public Parks — Advertisements and signs on fence — Injunction — Taxpayer’s action.</p> <p>Under section 012 of the Greater New York Charter (L. 1897, eh. 378, as amended in 1901) the duties of a park commissioner with respect to public parks are "to maintain the beauty and utility of all such parks, squares and public places as are situated within his jurisdiction, and to execute * * * all measures for</p> <p>the improvement thereof for ornamental purposes and for the beneficial uses of the people of the city”, and any attempted use of the parks or park property which does not make for one of these ends is illegal.</p> <p>Accordingly held, that a grant by a commissioner of public parks of the right and privilege of painting and exhibiting upon said fence, advertisements, placards and advertising signs, was unauthorized, illegal and void; neither the fact that the fence was temporary and erected for a proper purpose nor that the city was to receive a pecuniary consideration, rendered such grant legal, and a taxpayer’s action to restrain such use is maintainable although it is not shown that there has been any waste of the city’s money or actual injury to its property.</p>

<p>Motion by the receiver, appointed in this action to foreclose a mortgage, for leave to issue certificates of indebtedness to raise money to put the plant of the company in a condition to run; such certificates to be a lien prior to the mortgage. The company is not engaged in any public service of lighting but only sells electricity to other companies.</p>

Action for damages for breach of contract. 'Motion by plaintiff for a new trial, complaint having been dismissed at the close of the evidence .for the plaintiff.

Action for damages to 29 yearling colts and fillies in transit. Verdict for plaintiff for $30,000. Motion on the minutes for a new trial; also motion to reduce the verdict to the amount of the limited liability specified in the contract of shipment, vtiiieh question was reserved during the trial.

<p>Divorce—Foreign — Proceeding for nonsupport by second wife — Impeachment of decree of divorce.</p> <p>A husband who leaves his wife in this State and procures an absolute divorce from her in another State, may not impeach the decree on the ground that the foreign court had no jurisdiction of the parties.</p> <p>Where a husband, leaving his wife in this State, goes to another State where he obtains an absolute divorce from her and marries another woman in this State, he may not impeach the validity of the divorce in a proceeding against him for nonsupport of the second wife, and evidence that he beat her, turned her out of his house and that the only available means she had to support herself was fifteen dollars a month and that he ¿ad wholly neglected to support and maintain her according to his means, justifies a finding that he had abandoned her without adequate means of support and an allowance to her of ten dollars a week, provided by an order adjudging him a disorderly person, is just and reasonable.</p>

<p>Practice — Motion to advance cause — Renewal without leave — Amendment to rules.</p> <p>The practice of renewing, before one justice of the City Court of the city of New York, a motion to advance a cause to the special calendar for short causes, which had already been heard and denied by another justice, without first obtaining leave of court, will not be sanctioned and-an order granting the motion will be reversed.</p> <p>The recent amendment to the rules of the said court, increasing the time to be allowed for a trial on the special calendar, while a potent argument on a motion for leave to renew, does not obviate the necessity for obtaining such leave.</p>

<p>Appear from an order denying defendant’s motion made in the City Court of the city of New York, under section 1268 of the Code of Civil Procedure to cancel and dis-J charge of record a judgment.</p>

Appeal by defendants from a judgment of the Gity Court of the city of New York entered on the verdict of a jury in favor of the plaintiff-respondent, and from an order denying a motion for a new trial, and an order awarding plaintiff-respondent an extra allowance.

<p>Negligence — Action for personal injuries — Testimony changed on second trial — Apparent desire to make a case.</p> <p>Where a judgment for plaintiff, in an action for personal injuries sustained while she was alighting from a street car, is reversed upon the ground that there was not a particle of evidence that she gave any signal to the conductor, or that he knew, or had reason to know, that she intended to alight, and on the second trial plaintiff and her son flatly contradict their testimony at the previous trial as to where the car stopped, taken in connection with radical changes in their testimony on material points which lead to the conclusion that the testimony on the second trial was apparently given with the sole desire to fit the facts to suit the case, regardless of truth or consistency, the judgment in her favor will be reversed.</p>

Appeal by the defendant from a judgment, rendered in favor of the plaintiff after a trial before the court and a jury in the Oity Court of the city of New York, and also from an order denying defendant’s motion for a new trial.

<p>Chattel mortgage — Title of mortgagee — Time of payment—Alteration after execution — Eights of purchaser.</p> <p>The title to property covered by a chattel mortgage is in the mortgagee and can only be divested by payment.</p> <p>Where no time is specified in a chattel mortgage, at which the debt is to be paid, it is payable immediately and no demand is needed to enable the mortgagee to foreclose.</p> <p>The fact that an alteration was made in a chattel mortgage after its execution and delivery will not divest the title of an innocent purchaser acquired under the instrument as made.</p>

<p>Appeal by the defendant from a judgment rendered in favor of the plaintiff after a trial before the court and a jury in the City Court of the city of New York, and also from an order denying defendant’s motion for a new trial.</p>

<p>¡Physical examination — Only in connection with oral examination.</p> <p>Physical examination of the plaintiff, under section 873 of the Code of Civil Procedure, can only he ordered in connection with an oral examination of plaintiff as a witness before trial.</p> <p>The oral examination may be limited; but provision therefor cannot be stricken from the order, leaving provision for the physical examination only to stand.</p>

<p>Appeal from an order denying defendant’s motion for a new trial made upon, the ground of newly-discovered evidence in the City Court of the city of New York.</p>

<p>Supplementary proceedings—Receiver appointed — Notwithstanding claim that judgment is paid though not satisfied — Notwithstanding adverse claim to moneys in hands of third person.</p> <p>A receiver in supplementary proceedings should be appointed when property of the judgment debtor appears, by the examination of a third party, to be in his hands though a claim is made that it belongs to another. A receiver is entitled to test such a claim by action.</p> <p>When the judgment debtor claims that the judgment creditor received an assignment of another judgment in payment' and the evidence is conflicting, though preponderating in support of such claim, the application for a receiver should not be denied, but the judgment debtor should be left to his motion to have the judgment satisfied of record.</p>

: “ 1. That on or about the 18th day of March, 1904, the defendant and one Isidor Weinberg were copartners in business under the firm name of Weinberg & Abrams; and that on or about that day the defendant contributed or loaned to the business the sum of one thousand ($1,000) dollars. “ 2.

<p>Appeal from an order of the City Court of the city of New York which set aside a receiver’s sale of the right, title and interest of the judgment debtor Edward L. Kalbfleisch, Jr., in and to a contingent remainder left to him by the will of his grandfather, Martin KalMeiseh, deceased.</p>

Appeal by defendant from a judgment entered in the Municipal Court of the city of Mew York, third district, borough of Manhattan, from an order denying defendant’s motion to vacate and set aside an order directing substituted service of the summons herein and from the order denying the defendant’s motion to vacate and set aside the said judgment.

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

Appeal by the plaintiff from a final order in dispossess proceedings made in the Municipal Court of the city of New York, fifth district, borough of Manhattan.

Appeal by the plaintiff from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of Few York, ninth 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.</p>

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

Appeal by the defendants from an order denying a motion to set aside the verdict of a jury rendered in favor, of the plaintiffs in the Municipal Court of the city of New York, ■ twelfth district, borough of Manhattan.

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

These two appeals are taken by the respective defendants from judgments rendered in favor of the plaintiff upon inquests in the Municipal Court of the city of Mew York, second 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 ¡New York, seventh 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 Hew1 York, eighth 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, twelfth district, borough of Manhattan, after a trial before the court without a jury.</p>

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

Appeal by the plaintiffs from á judgment rendered in favor of the defendants in the Municipal Court of the city of New York, eleventh 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, fifth district, borough of Manhattan. •

<p>Husband and wife — Groceries furnished wife — Liability of husband — Wife’s hostility to husband.</p> <p>Where upon the trial of an action for groceries sold and delivered to defendant’s wife on her order between September 13 and December 3 of the same year, it does not appear that during that period defendant furnished her with anything or made her an allowance reasonably commensurate with her position and needs and whetner the goods were sold on the wife’s credit and whether defendant had supplied his wife for her support with a reasonable and adequate allowance suitable to her mode of living and station of life are fairly left to the jury and resolved against the defendant, a judgment in plaintiff’s favor should be affirmed.</p> <p>In such an action the wife may be required to answer questions as to her hostile feeling toward her husband.</p>

<p>Trial by court of an action to recover a chattel, a jury Having been waived.</p>

<p>Condemnation Law — Riparian owner’s right to river frontage is property — Insufficiency of award — Conveyance pending proceedings — Damages — Commissioners applied wrong principle in making award —Report set aside.</p> <p>An award made in condemnation proceedings will ordinarily be sustained unless the commissioners have, clearly gone astray or adopted erroneous principles in the assessment of damages.</p> <p>The right of a riparian owner of land adjoining the Hudson river to the entire river frontage west of the center of a public highway running through his farm and parallel to the river, is property independently of any intrinsic value of the land and where, as the result of condemnation proceedings, instituted by an electric light company to acquire such land, such right is not merely interfered with but the corporation will acquire absolute fee of all that portion of the farm between the center of the highway and the river without any reservations or qualifications, thereby cutting off all access to the river and to the use of its water for domestic or farm purposes and converting said farm from riverside to roadside property, an award of one hundred dollars to the owner for the destruction of such riparian right and the consequent impairment to the value of the farm is clearly insufficient.</p> <p>The fact that pending the proceeding, the owner of the farm conveyed his interest in the strip of land in question, reserving only a right to go upon and cross the same for certain purposes specified in the deed, does not divest his interest in the question of damages, as presumably, the grantee took title with reference to' the estate to be acquired by the plaintiff in the condemnation proceeding as for the corresponding loss sustained by the grantor in the diminution of the purchase price, the plaintiff was liable to him and not to his grantee.</p> <p>Where in such proceeding it was contended before the commissioners on behalf of the plaintiff that it was only acquiring the right of flowage in respect to the property, and that the defendant, by reason of his conveyance of the strip in questipn, had only a nominal interest in the question of damages, and on motion to confirm the commissioner’s report the court 'is satisfied that they adopted one or both of such erroneous theories, and thus necessarily applied a wrong principle in making their award of damages, their report should be set aside.</p>

<p>Motioh to dissolve preliminary injunction.</p>

<p>Action upon a promissory note against defendant as maker, to which his discharge in bankruptcy was pleaded in. bar. The opinion states the case.</p>

<p>City of New York — Right of police to inspect places of business — Greater New York Charter, § 315 — Suit to restrain police inspection — Temporary injunction in advance of trial.</p> <p>The police department of the city of New York has no right to caution people against going to a person’s place of business, nor to station a policeman permanently in front of the premises, nor to interfere with his visitors, nor to harass or annoy him by unreasonable or unnecessary inspections so long as the law is not violated.</p> <p>A plaintiff, in advance of a trial upon the merits of a suit for trespass on real property, will not be granted a temporary injunction, the effect of which will be to give him all the remedy to which he would be entitled if he finally succeeds in the aetioii, unless his right thereto is clear, and the injury alleged to be inflicted upon him by the acts sought to be restrained, is irreparable.</p> <p>Where in a suit brought to restrain the police department of the city of New York from posting a policeman in front of plaintiff’s premises, interfering with visitors thereto, plaintiff, upon an application for a temporary injunction, alleges that as a dealer in tea and coffee he supplies hotels and merchants in the vicinity and is absolutely ignorant of wrongdoing, or of any reason for police interference, and it appears that his tea and coffee room is over a liquor store which apparently occupies the full width of the ground floor and consists of a large room with a great number of chairs, pictures and photographs on the walls, six chests said to contain tea and a number of trays containing coffee and tea with an adjoining room occupied by the keeper of the saloon who, defendants say, is the tenant of the entire premises and also claims that the hotels, referred to by plaintiff as his customers, are so-called “ Raines Law ” hotels in the vicinity and the court is not satisfied that plaintiff is telling the truth or that he conducts the business he claims to conduct, his motion for a temporary injunction against defendants, claiming the right to inspect the premises under section 315 of the Greater New York Charter, will be denied.</p> <p>Where another plaintiff, having only two or three samples of wall paper and claiming to he conducting a wall paper business over a liquor store, makes no explanation of the statements by the police that shortly before the suit, and during plaintiff’s occupancy of the premises, a number of telephones were taken from his rooms and that many persons resorted there daily, he is not entitled to a temporary injunction in advance of the trial of the suit.</p> <p>Another plaintiff, the keeper of a liquor saloon, held not entitled to' a temporary injunction restraining the police from inspecting his premises, the duty of inspecting places where liquor is sold being imposed by section 315 of the Greater New York Charter.</p> <p>Where the only explanation the police can give for an inspection of the premises of another plaintiff, conducting a reputable cigar and tobacco business,* is that the place is on a list of suspicious places given to the police and no fact is set forth showing why the place is suspicious and no act is sworn to, a continúanee of the visits of the police -is not justified and plaintiff will be granted a temporary injunction.</p>

<p>Action for the construction of a will. The opinion states the ease.</p>

<p>Sunday — Public games of baseball — Injunction.</p> <p>The playing of games of baseball on Sunday, to which the public are invited and an admission fee is charged, constitutes a violation of the law (Penal Code, §§ 259, 260, 265) and the duty of the police to prevent such games may not be restrained by injunction.</p>

<p>Partnership — Firm name not necessarily part of “good-wili”—Right to use of after dissolution — Injunction to restrain unauthorized use.</p> <p>While a firm name is a valuable adjunct to the good-will of a business conducted thereunder, it is not necessarily a part thereof simply by reason of the fact that it is an established firm name and cannot become so where the business depends upon the personal attributes of the persons engaged therein.</p> <p>Where the right to use the name, under which a banking and brokerage firm commenced business, has by agréement been continued by successive partnerships for many years as the symbol used to denote the personal integrity and business qualities of the present owners, it cannot be detached from the personnel of the partners and sold as an asset of the good-will of the business where the partnership articles merely provide for the relinquisnment of ail claims to the firm name by a partner upon retirement and are silent as to the disposition to be made of such name upon the expiration of the partnership by limitation.</p> <p>But in such case, one partner is entitled to an injunction to</p> <p>■ restrain the other partner’s unauthorized use of the firm name as against him, after the expiration of the partnership and the pendency of an action against the partner asking the injunction to obtain a judicial determination that he has no interest in the firm name at the expiration of the partnership does not affect his right to injunctive relief.</p>

<p>Motion for final judgment upon report of a referee appointed by interlocutory judgment to take and state an account of dealings and transactions between the parties, etc.</p>

<p>Issues of law upon demurrer to complaint for insufficiency and for defect of parties.</p>

<p>Action to establish and foreclose mechanics’ liens, asserted by plaintiff and by defendant Hodkinson, respectively.</p>

<p>Actios- to determine claim to real estate tried by the court without a jury upon consent of the parties.</p>

<p>Stock Corporation Law, § 30 — Failure to file annual report — Personal liability of directors.</p> <p>An annual report of a corporation, dated January 30, 1897, when it was signed by the directors, in which there is no suggestion that it was made as of January 1, of that year, does not substantially comply with section 30 of the Stock Corporation Law and the plaintiff, in an action to enforce the personal liability of the directors for failure to file an annual report for 1897, is entitled to judgment.</p>

<p>Bankruptcy — Chattel mortgage within four-months’ period—Action co set aside — Sufficiency of complaint.</p> <p>The complaint in an action by a trustee in bankruptcy, to set aside a chattel mortgage made by the bankrupt within the four-months’ period as a preference in favor of the mortgagee, should allege that the plaintiff has not sufficient assets to pay all creditors who have filed claims against the estate and that the transfer was made in consideration of an antecedent debt.</p>

<p>Constitutional law — Delegated powers — Legislative control over streets in the city of New York — Laws 1905, chaps. 629-631—Board of estimate and apportionment may grant rapid transit railway franchises — Injunction — Taxpayer’s action.</p> <p>The legislature creates the subjects of local legislation and except as restrained by the Constitution, defines the powers and duties of the local legislatures in relation thereto, and that the legislature under its reserved power may modify or take away these delegated powers and duties in whole or in part is well established.</p> <p>The legislature may delegate its power of control over the streets of the city of New York, to any local board, administrative or legislative, under such provisions of law as will permit it to be best exercised for the public welfare.</p> <p>Chapters 629, 630 and 631 of the Laws of 1905, by which the control of the streets of the city of New York and the power to grant franchises to street railway corporations' were taken from the board of aldermen, the legislative body of the city, and given to the board of estimate and apportionment, an administrative body, are constitutional, and the latter board may not .be restrained by injunction, in a taxpayer’s action, from considering and taking action upon the application to it of the board of rapid transit railway commissioners for consent to the construction of certain rapid transit railways.</p>

<p>Contempt — Procedure — Service of order to show cause — Sufficient upon attorney of party charged — Attorney and client — Extent of attorney’s authority — On appeal from interlocutory judgment.</p> <p>An order to show cause in proceedings to punish a contempt of court may be served on the attorney for the defendant charged with the offense.'</p> <p>An attorney authorized to act for the defendant in an appeal from an interlocutory judgment and who has been his attorney in the action is the defendant’s attorney for all. the purposes of the action.</p>

<p>Attachment — Vacation not annulment — Appeal — From order vacating warrant of attachment — Stay proper.</p> <p>The entry of an order vacating an attachment of the property of a foreign corporation does not annul the warrant of attachment and upon an appeal from the order a stay of proceedings is properly granted.</p>

<p>Action for partition.</p>

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

<p>New trial — Verdict contrary to evidence — Weight of evidence.</p> <p>Plaintiff recovered a verdict of $20,00p, for an assault by one of defendant’s street railway conductors, upon his own testimony and that of another witness who was one of the plaintiff’s two companions; the other companion, having gone to Italy, not having been called as a witness. It appeared that neither the plaintiff nor his witness, at the time of the trial, nine months after the accident, could give his testimony except through an interpreter; and the plaintiff could not understand the English language. The plaintiff testified that he was ignorant of a second action, brought in his name by the same attorneys who tried the present action, after the present action was brought, to recover for the same injuries on the ground of negligence; and that he knew nothing of the attorney who brought the present action. The plaintiff testified, as to the accident, that the conductor seized him and gave him a pull which caused him to fall from the ear, the wheels of which ran over his right foot and right hand necessitating amputation thereof. The other witness gave an account varying from the plaintiff’s in an essential particular and the conductor of the car, who was in Ireland, sick with consumption, was not called by the defendant as a witness. The facts, as testified to by the plaintiff and his witness, indicated a malicious design to forcibly eject plaintiff from the rapidly moving car, with reckless and wanton disregard of plaintiff’s life, and required a motive to give them plausibility. Plaintiff and his witness sought to supply such motive by testifying that plaintiff was standing in front of two Sisters of Charity and had not obeyed the unreasonable and; therefore, improbable command of the conductor, given previous to the assault, to move; though the plaintiff admits that he did not understand that such command was given. The defendant’s theory was that plaintiff stood on the running-board of the car, lost his balance and fell off; and the defendant called three disinterested witnesses to establish this theory. These witnesses seem intelligent and candid and all testified that they saw the plaintiff on the running-board and one of them, that she saw plaintiff in the act of falling. All of them testified clearly and positively that, at the time of the accident, the conductor was in the forward parti of the car, at a place where the plaintiff was inaccessible to him; and that the Sisters of Charity were not seated where the plaintiff testified they were. Held:</p> <p>The plaintiff’s case was inherently improbable, the motive for the alleged assault was unproven and the verdict should be set aside.</p>

Motion by the defendant under section 1312 of the Code of Civil Procedure, to limit the amount of security to stay the execution of the judgment.

<p>Application for mandamus to compel a corporation to submit its books for inspection by a stockholder.</p>

<p>Fraud — Evidence—Presumption from fiduciary relations — Not necessarily from confidential business relations.</p> <p>Plaintiff’s intestate, Duncan Kelly, was born in 1827, was a laborer and uneducated, though he could read and write to a limited extent and was possessed of ordinary capacity for everyday affairs. Through increase in wages and close economy he accumulated property. ■ One George Ashforth, whom Kelly had known from his boyhood, for a number of years and until his death in 1890, collected the rents of real estate, which Kelly had purchased by his advice, and deducted therefrom the usual commissions and paid over the balance to Kelly. After the death of George Ashforth his brother, the defendant Edward Ashforth, succeeded to the former’s real estate business and continued with Kelly, who had previously been a stranger to him, the arrangement which his brother had previously had for collecting the rents. Afterwards Kelly sold the real estate and the purchase-money mortgage and another mortgage belonging to Kelly came into defendant Ashforth’s custody who collected the interest at an agreed commission and accounted for it to Kelly. On November 11, 1896, Kelly executed the trust deed, sought to be set aside in this action on the ground that Ashforth obtained it through “undue influence, fraud and threats.” It was drawn by the attorneys of the Farmers’ Loan and Trust Company, with whom Ashforth was not previously acquainted, from directions received from Ashforth. It was read over ' carefully and its legal effect explained to Kelly by one of the firm of attorneys who observed that Kelly was an illiterate man and wno wanted to be sure that he knew what he was going to sign and who then went with Kelly and Ashforth to the company’s office where the deed was executed in duplicate and one copy thereof was delivered to Kelly. By this deed, securities for $25,000 and interest at five per cent, were transferred; the income, less one and one-half per cent, commissions to the compauy, was to be paid to Kelly during his life and then to hi? wife, the plaintiff, during her life, when $20,000 of the principal was to be paid to Ashforth and the remaining $5,000 to Elizabeth and Jane McGibney, or their survivor, or, in the event of the death of both, to the children of their sister Mary. Ashforth guaranteed that the income should never be less than $1,218.75. Ho other counsel was present and Ashforth paid the attorney’s bill. Kelly had no living relatives. Elizabeth and Jane McGibney were relatives of his wife who had assisted her; and Ashforth never saw them until at ICelly’s funeral. Kelly gave the Ashfortlis credit for his profitable investments. The income was paid regularly to Kelly under the deed until his death on August 30, 1904. Ho threats, or undue influence, or fraud were proved except such as the plaintiff seeks to spell out from the relations that existed between Kelly and Ashforth and from the mental superiority of the latter over the former. Held: The relations in the present case were not fiduciary in their nature but simply those which ordinarily exist between the real estate owner and the agent who have become well acquainted with ' each other; and, although Ashforth’s advantages, under the deed, were disproportionate to the risk he assumed in his guaranty respecting the income, yet, as Kelly had no relatives and aimed to secure an assured income, it was not unreasonable for him to wish to have the capital, after he had ceased to need it, go to Ashforth and the McGibneys, for whom he justly had a regard. As his investments were maturing his satisfaction with the arrangement might properly be increased by contemplating the uncertainty of reinvestment. The provision for the McGibneys, strangers to Ashforth, revealed Kelly’s voluntary suggestion. The circumstances of the execution of the deed leave no room for inference that Kelly did not fully understand the transaction and acquiesce in the course of procedure resulting therefrom.</p>

<p>Limitation of action — Accruing of cause of action — Accounting by pledgee — Equity — Laches.</p> <p>Upon a pledge of goods, the pledgor’s right to tender the amount of the indebtedness and demand the return of the goods accrues when the debt becomes due; and, after the expiration of sixteen years from the time when the debt became due, an action for an accounting of the disposition of the proceeds of the goods, which had been sold by the pledgee at private sale without notice to the pledgor or his representatives, and for a judgment for the difference between the sum realized and the amount of the debt, cannot be maintained.</p> <p>After the lapse of so many years, equity ought to refuse cognizance of the claim independently of the statute.</p>

Action to compel the specific performance of an oral agreement alleged to have been made by the plaintiff, with the defendant’s intestate.

<p>Certiorari to review the conviction of the appellants of the causes charged as the ground of their removal, by the mayor of the city of Oswego, from their offices ¿s commissioners of works of said city.</p>

<p>Motion for an injunction to restrain the defendants from a continuous trespass.</p>

<p>Master and servant — Liability for injuries to servant — Safe place to work — Duty of inspection — Negligence.</p> <p>Plaintiff’s intestate, working near the foot of a clay bank, in June, 1904, was buried and killed by the sudden giving way of the bank. The bank was sixty-five or seventy feet high, of sand and clay, resting on a substratum of sand, and receded about twenty feet from a vertical plane passing through its base. The previous November a large slide, but not over half as extensive as the one in question, had taken place in the bank. No slide had occurred intermediate these two, and deceased was assisting in removing what had fallen before for the purpose of making brick. There was evidence of some water in the bank and of a natural gulley, having an outlet on top and some distance back from the crest of the bank, and of other matters of detail. Held:</p> <p>No reason appears why it was the duty of the defendant to remove the top of the bank, and how far such removal would have been necessary to have obviated the silde is conjectural. Evidence as to the best way to work the bank is inapplicable, as the bank was not being worked; and, for the same reason, inspection of the bank was not required and, in the present instance, a watchman would probably have been unavailing. The catastrophe was an act of Providence for which defendant is not responsible.</p>

<p>Partnership — Assignment for creditors — Partnership assets not liable for debt of individual partner.</p> <p>A claim upon the promissory note of one partner indorsed by his copartner is not a firm debt, and upon distribution under a general assignment for the benefit of creditors, of the partnership property and estate of the individual partners, which contains no directions or restrictions in reference to the payment of the claims of creditors, it cannot be allowed against the partnership, assets until after the payment or satisfaction of the claims of firm creditors.</p>

<p>Evidence — Written law of foreign State — Marriage in Austria — Proceeding for nonsupport.</p> <p>Where four months after his marriage in Austria by a Jewish rabbi having full authority to celebrate a ceremonial or religious marriage, a husband leaves his wife and comes to this State and fails to send for her, according to promise, and his only defense in a proceeding for nonsupport is the mere verbal statement of his counsel, not under oath, that in Austria, a Jewish or religious ceremonial marriage is not valid unless followed or preceded by a civil marriage, a judgment of a city magistrate adjudging him a disorderly person for failure to provide for his wife and child will be affirmed.</p> <p>The written law of a foreign country must be proved in this State by the production, duly authenticated, of the law itself, or by reports or other authorized publications, duly proved, of such law.</p>

<p>Partnership — Dissolution — Continuing partner assumed firm, debts.</p> <p>Where, upon the dissolution of a partnership, the continuing partner becomes the sole owner of the partnership assets and assumes the firm liabilities, he is primarily liable therefor and the retiring partner may not be proceeded against by a firm creditor with notice of the facts, until the latter has exhausted his remedy against the continuing partner.</p> <p>Greenbaum, J., dissented.</p>

<p>Lease — Defective condition of premises — Liability of tenant to third ■ person —Res ipsa loquitur — Evidence.</p> <p>Where a lease is silent as to repairs to the leased property, the tenant is bound to make them and is liable for injuries to a third person caused by reason of the defective condition of the premises, although it appears that the landlord had made all the' repairs.</p> <p>Where, while plaintiff was standing upon an iron grating in front of the show window of defendant’s dry goods store, one of the bars gave way and she was injured by her leg going into the hole thus made, the circumstances raise a presumption of negligence on the part of the defendant under the doctrine of res ipsa loquitur.</p> <p>Where in an action against the tenant who was bound to make repairs, there was not the slightest evidence that the grating was ever examined by anybody, and none of defendant’s exceptions presents reversible error, and the damages are not excessive, the judgment entered upon a verdict for plaintiff will be affirmed.</p>

<p>Appeal by the defendant from a judgment entered in favor of the plaintiff in the City Court of the city of New York and also from an order denying the defendant’s motion for a new trial.</p>

<p>Master and servant — Action for services — Unproved account not good as counterclaim.</p> <p>In an action for services rendered under a contract of employment, a statement by plaintiff that during all the time he was in defendant's employ he drew moneys “ from time to time as shown by the account”, referring to an account produced by defendant but not shown to be correct, is not an admission of its correctness and, in the absence of such proof, the account is not available as a counterclaim. The reasonable construction of the plaintiff's statement is that he drew moneys which were charged to him in the manner shown by the account.</p>

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

<p>Appeal by defendant from a judgment rendered in favor of plaintiff in the City Court of the city of New York, after a trial before the court and a jury, and also from an order denying defendant’s motion for a new trial.</p>

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

<p>Appeal by the plaintiff from a judgment dismissing the complaint entered in the City Court of the city of New York.</p>

Appeal by the defendant from a judgment entered in favor of the plaintiff in the City Court of the city of New York, after a trial before the court and a jury, and also from an order denying the defendant’s motion for a new trial.

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

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

Appeal by the defendant Grand Theatre Company from a judgment rendered in favor of the plaintiff in the City Court of the city of New York after a trial before the court and a jury. „ , '

<p>Negotiable instruments — Usury — Burden of proof — When error in charge to jury not cured.</p> <p>The burden of proving usury by a fair preponderance of evidence rests upon a defendant who sets up that defense to an action upon his promissory note.</p> <p>A charge to the jury, in an action against the maker of a prom- ' ’issory note who pleaded usury as a defense, that “ If the jury cannot make up their minds as to whom to believe, the plaintiff has failed to make out his ease and defendants are entitled to a verdict ”, is not cured by a further charge that “ The validity of the note is presumed, but that is subject to rebuttal, and when the rebuttal testimony is put in then the burden shifts again on the maker of the note ” as the expression about the shifting of the burden might be taken to imply possible relief of the defendants from their burden of satisfying the jury affirmatively of the truth of their allegation of usury, a burden subsisting to the end.</p>

<p>Appeal by the defendant from a judgment rendered in favor of plaintiff in the City Court of the city of New York, after a trial before the court without a jury.</p>

<p>Bankruptcy — Discharge — Residence of creditor scheduled as “unknown ”,</p> <p>The discharge of a bankrupt who scheduled the residence of a judgment creditor as “ unknown ”, though ascertainable by the exercise of reasonable diligence, does not extend to the creditor’s judgment where upon motion to cancel the same it appears that the creditor had no notice or knowledge of the various steps in the bankruptcy proceeding.*</p> <p>*See Tyrrel v. Hammerstein, 33 Misc. Rep. 505.</p>

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

Appeal by the defendant from a judgment of the City Court of the city of New York, entered upon the verdict of a jury, and from an order denying a motion for a new trial.

Appeal by the tenant from a final order in favor of the landlords entered in the Municipal Court of the city of New York, tenth district, borough of Manhattan.

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

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

<p>Appeal — Review — Scope of review — Questions x&ised for the first time on appeal — Municipal Court of the city of New York — Jurisdiction — Legal as distinguished from equitable actions — Foreign corporations — Effect of appearance.</p> <p>Where plaintiff, as trustee in bankruptcy, sued to recover the purchase price of goods sold by the bankrupt before his failure; ■and the original defendants, showing upon motion that the same ■sum was claimed by the present defendant under an alleged assignment from the bankrupt before bankruptcy, were permitted to pay the amount into court and the present defendant was substituted' in their place; and where the plaintiff claimed in his pleadings that the assignment to the present defendant was made with intent to- hinder, delay and defraud the plaintiff and that defendant had reasonable cause to believe the bankrupt intended an unlawful •preference; and the plaintiff was defeated on the merits, held:</p> <p>That plaintiff may not, for the first time on this appeal, impeach his own suit on the ground that it is a suit in equity of which the court had not jurisdiction and, held, further, that this is not a suit in equity.</p> <p>And, where the plaintiff also objects that the defendant is a foreign corporation and does not appear to have an office in the city of New York, held:</p> <p>That it does not lie in plaintiff’s mouth to raise this question for the first time on appeal and, further, that there was no evidence that defendant is a foreign corporation; but, even if it so appeared, the defendant conferred jurisdiction by appearing and going to trial without objection.</p>

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

<p>Appeal — Judgment absolute — Presumptive liability of husband for wife’s board — Suitable residence.</p> <p>Upon appeal from a judgment absolute for the defendant rendered by the Municipal Court of the city of New York, it will be assumed that upon the whole case plaintiff was not entitled to recover as matter of law.</p> <p>A husband who without adequate reason leaves his wife and fails to provide her with a home, or means to provide one for herself, is liable for the reasonable value of her board; but the wife’s agreement to pay a certain sum is not conclusive upon the husband. '</p> <p>The fact that the husband and wife had lived together in the same house in which she remained after he deserted her, is prima fade evidence that it was a suitable residence with reference to the husband’s means.</p>

<p>Negligence—Burden of proof — When erroneous charge cured.</p> <p>A charge to the jury, in an action to recover for personal injuries, that “ the burden of showing that the accident did not happen through the defendant’s negligence is upon the defendant ”, is erroneous, but is cured by a subsequent charge that “ while the law calls upon the defendant, under such a condition as the plaintiff claims existed here, to explain, yet on the whole case, the burden is upon the plaintiff in the end to convince the jury that the accident occurred through the negligence of the defendant ”.</p> <p>MacLean, J., dissented.</p>

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

<p>Trial — Case ready for — Amended answer filed — Adjournment — Motion denied.</p> <p>The answer, in an action for services in building certain crates, ■ while admitting plaintiffs’ employment, alleged that the work had been unskillfully and improperly done and counterclaimed. When the cause came on for trial, defendant by leave of court filed an amended answer denying all the allegations of the complaint," omitting all allegations of improper parties and containing no counterclaim, and defendant stated that “ If the plaintiff is taken by surprise I will submit to an adjournment of this cause. He may then put in such supplementary proof as he may want to ”. Plaintiffs’ attorney’s understanding of the offer was that when he had put in such evidence as he was prepared with, an adjournment might be had for the production of further proof of authority and, at the close of the evidence, asked for an adjournment to enable him to show the hiring by the defendant. Held, that a denial of the motion was error.</p>

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

<p>Contract — To remove buildings before acquisition of title — Rescission — Recovery of consideration.</p> <p>Where by the terms of an entire contract for the sale of five houses and their demolition within fifteen days, upon a twenty-four hours’ notice, it is provided that in case the seller did not take title to the property until the first of the succeeding month (March), the contract should be void and the consideration returned to the buyer, he may, in the event of the seller not acquiring title at the time specified, elect to consider the contract void and recover the consideration paid, or is entitled to an opportunity to remove the buildings within a reasonable time after the time set for the acquisition of the title; and a notice given by the seller to him on April twelfth, to take possession of and remove three of the buildings is ineffectual for any purpose.</p>

<p>Guaranty — Changing hot-water heating system — Action for failure to perform.</p> <p>Where plaintiff, after installing a hot-water heating apparatus in defendant’s apartment house, contracted to change the system from high temperature to low temperature for a certain amount, which he agreed to relinquish in ease the defendant should be unable to make a substantial reduction in the amount of fuel used, and also guaranteed the apparatus to be installed to be capable of heating the rooms in which the radiators were located to seventy degrees in zero weather, his failure to fulfill his guaranty is not excused by the fact that a flue in the building was too small and that by reason of the construction of the building it was a difficult 'one to heat.</p>

<p>Street railway — Accident to passenger preparing to alight — Question for jury.</p> <p>Where a street car, after slowing down on signal so as to be barely moving, suddenly starts forward with a jerk, violently throwing a passenger preparing to alight, to the street and injuring him, whether in the circumstances the defendant was guilty of negligence in suddenly starting the car, and the plaintiff guilty of contributory negligence in preparing to alight therefrom, should be submitted to the jury.</p>

<p>Stock Corporation Law, § 53 — Inspection of stock book — Action for penalty — What must be shown.</p> <p>Unless the plaintiff, in an action to recover the penalty provided (Stock Corporation Law, § 53) for failure of an alleged foreign stock corporation to permit an inspection of its stock book, etc., proves by competent evidence that defendant is a stock corporation having an office for the transaction of business, or a transfer agent in this State; that it is not a moneyed or railroad corporation and that plaintiff is a stockholder therein, he cannot recover.</p>

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

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

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

<p>Practice — Stipulation — Restoring cause to calendar after dismissal.</p> <p>Where a cause, which by stipulation had been adjourned to a particular day, is dismissed by the clerk on the call of the calendar the day before the adjourned day, the court may receive the cause and set a day for the trial over defendant’s objection.</p>

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