Volume 47 — New York State Reporter

<p>Submission of controversy—Irregularity,</p> <p>A submission of controversy in which the statement and briefs of both sides are drawn by the same attorney is not of the independent character re- ■ quired by the Code, and the court will refuse to entertain the same.</p>

Appeals by both parties from an order of the surrogate affirming an order assessing the value of property subject to taxation under the collateral inheritance tax act Upon the first report by the appraiser the matter was sent back to him, the surrogate writing the following- opinion:

<p>Conversion—Check .</p> <p>Under a building contract the first payment was to be made to plaintiff when the first tier of beams were on, out of a payment to defendant, who was to be reimbursed out of subsequent instalments. Plaintiff’s testi many tended to show that the check was made payable to defendant and given him for plaintiff; that he endorsed the same, but refused to deliveiit. Defendant testified that he refused to endorse it, as plaintiff had. stopped work and he would not do so unless plaintiff went on so that he could get his payments. Plaintiff replied that he was ready to go on, but was prevented by other work not being finished. Held, that if plaintiff’s, evidence was credited defendant was guilty of conversion the moment he failed to deliver the check, and that a verdict for plaintiff would not be disturbed.</p>

<p>Municipal corporations—Buffalo—Salaries of police commissioners —Laws 1892, Chap. 879.</p> <p>Under the charter of the city of Buffalo passed in 1891 the common council was composed of the board of aldermen and the board of councilmen, and it was required to fix the salaries of appointive officers by ordinance, which was to be presented to the mayor, and if vetoed was to be returned to the board of aldermen for further action. Provision was made for joint sessions in certain cases, but the acts of such sessions were not subject to review by the mayor. By chapter 379, Laws of 1892, it was provided that the police commissioners should receive such annual salary as might be fixed by the common council at a joint session, and that the said council should immediately determine the amount of such salary. Held, that the action of such joint session was not subject to review and that the mayor had no power to veto the same. •</p> <p>(Titus, Oh. J., dissents.)</p>

<p>Foreclosure—Advertisement.</p> <p>Where there is no personal representative of a deceased mortgagor a. foreclosure sale by advertisement which in other respects is conducted in. accordance with the st itute is valid; the requirement of chap. 346, Laws 1844, as to service on the personal representative cannot he complied with, and a purchaser at such sale acquires a valid title.</p>

<p>Mandamus—Will not lie to compel issue op diploma by medical college.</p> <p>A mandamus will not lie to compel a medical college to issue a diploma to a student. In passing on the qualifications of the student as to granting a diploma the faculty of the college act as a quasi judicial body, exercising an ample discretion which cannot be reversed by mandamus.</p>

<p>Divorce—Confessions.</p> <p>Where the confessions of adultery are free from taint of collusion, confirmed by circumstances and the conduct of the accused, the evidence is sufficient to justify a decree of divorce, especially where the defendant refuses to testify in his own behalf.</p>

<p>1. Surrogate’s court—Order to show cause.</p> <p>While § 780 of the Code is not directly made applicable to the surrogate’s court, an order to show cause may properly be employed in such court to shorten the time of notice.</p> <p>.2. Same—Executor’s bond. '</p> <p>While a surrogate may not extend the five days fixed by § 3687 in which to file a bond, he may relieve the executor in a proper case from an order taken against him when he can show that it occurred through mistake, inadvertence or excusable negligence, but a motion to open such order or decree can only be entertained on newly discovered facts showing that it was made without jurisdiction or through inadvertence, mistake or fraud.</p> <p>3. Same.</p> <p>The surrogate having required the executor to give a bond, a controversy arose as to the value of certain real estate alleged to belong to testator, the executor giving evidence that it was of less value than the petitioner claimed. Thereafter the executor moved to modify the decree fixing the amount of the bond on the ground that testator had prior to his death conveyed the real estate to the executor, who had conveyed to another person, and he produced the unrecorded deeds. Meld, not a case of newly discovered evidence which would authorize the opening of the decree.</p>

<p>The plaintiff brings this action to restrain the defendants from using or in any manner disclosing or imparting to any one any secret or information as to any processes or formulas used by the plaintiff in its business of manufacturing protographic supplies, and especially in its business of making emulsion and film, which had been imparted to or acquired or discovered by them while in the employ of the plaintiff or its predecessor in business. The plaintiff is, and since the 5th day of December, 1889, has been a corporation duly organized, and as such was and is engaged in the business of manufacturing and selling Kodak cameras, photographic films and papers, dry plates, and other material and apparatus used in the art of photography, it having succeeded the Eastman Dry Plate Company in the conduct of this business. The defendants were in the employ of the plaintiff, holding responsible and lucrative positions. They were men of education,, skill and experience in their respective departments, and their services were of great value to the plaintiff, in whose interests, it is claimed, they, or two of them, Reichenbach and Passavant, had made certain discoveries and inventions which were of great value and which were unknown to the world at large.</p> <p>While thus employed by the plaintiff, the defendants organized a new company, with a large capital, for the purpose of engaging in the same business as that carried on by the plaintiff, and issued a prospectus of their enterprise, in which the announcement was made that the “ Corona Camera Company ” had been incorporated for the manufacture and sale of “ Photographic novelties arid specialties,” which announcement was followed by a list of some of the leading “ specialties and novelties,” which it was proposed to manufacture and sell. Among the articles thus enumerated, were a “ Corona film ” and a “ bromide paper,” the latter of which,, it was stated in the prospectus, the projectors of the new company were peculiarly prepared to place upon the market by reason of “having manufactured and sold it for a manufacturer that has, at present, the market monopoly.” Upon entering the service of the plaintiff, or its predecessor, the defendants Reichenbach and Pas-savant executed a written contract by the terms of which it was stipulated that they and each of them should assign and transfer to the company all inventions, discoveries, or improvements in photography which they respectively might make, discover or invent while in its employ.</p> <p>There is also evidence tending to show that outside of these ■contracts it was stipulated on the part of these defendants that they should regard their relation to "the company as strictly ■confidential, and that they should not disclose or make improper use of any secrets of the business. The defendant Milburn ■occupied the position of traveling salesman for the plaintiff, and while in pne sense his relation to the company was confidential in its character, he had not the same opportunities as the others to acquire information respecting its secret operations ; that .is, he was not engaged in experimental or formulative investigations.</p> <p>The plaintiff, upon learning of the intentions of the defendants respecting the formation of a new company, and upon having the ■contents of their prospectus brought to its notice, discharged them from its employ, and then resorted to a court of equity for the relief which it seeks to obtain through the medium of this action.'</p>

<p>1. Contract—Theatrical.</p> <p>Where a contract of employment of an actress and dansmse is intended to give the theatrical managers her exclusive services, a negative clause is unnecessary to secure that result.</p> <p>S. Same—Injunction.</p> <p>Where such actress and danseuse has a specialty which is unique and extraordinary and which renders her performances .specially attraciixe, an injunction will lie to prevent her appealing therein at other theatres during her leisure time, as such appearances would result in pecuniary injury to the manager with whom she was under contract.</p>

<p>Basement—License.</p> <p>A strip of land in the “Storms Tract” was conveyed in 1877 to “Michael A. Myers,trustee,” and subsequenty deeded to “Henry A.Thorpe, trustee,” and then to Traphagen, and subsequently through mesne conveyances in form absolute to the plaintiff. The original owners in 1877 conveyed to the Greenwood Lake Ice Co. fifteen acres of the Storms Tract subject to the deed theretofore “ given for a right of way through said premises, seventy-five feet in width, for railroad purposes,” and the grantee built an ice house on its land and a railroad track was laid on said strip. In 1878 Traphagen granted a right of way over the strip to the ice company for its ice business, and in 1880 the latter conveyed all its said property including its rights from Traphagen to U. and H., who have ever since conducted an ice business on the fifteen acres. Held, that the grant from Traphagen to the ice company was an easement and not a license and was not revocable by plaintiff.</p>

<p>1. Gifts—Inter vivas—Deposit in bank—Evidence.</p> <p>The intestate drew out money deposited in her name and deposited it in the name of herself or daughter B. The hook issued in those names came into the possession of B., and there remained until the death of intestate, when she drew out the money and claimed it as her own. Held, that no evidence of a valid gift or delivery being shown, and only evidence of an intent on the part of the intestate to make a will in favor of B., the latter was not entitled to the deposit.</p> <p>2. Same—Joint tenancy, survivor of.</p> <p>In such case the theory of survivorship of a joint tenancy is untenable.</p>

<p>Appeal from judgment entered upon a verdict directed by the court in favor of the defendant.</p>

<p>Proceeding by certiorari to review a finding and judgment of the Board of Police imposing upon the relator a fine of five days pay.</p>

<p>Appeal from judgment in favor of plaintiff.</p> <p>For former appeal, see 38 St. Rep., 526, 922.</p>

<p>Appeal from a judgment entered in favor of the plaintiff upon the decision of a judge after trial of the issues without a jury.</p>

<p>Certiorari to review proceedings of defendants.</p>

<p>Appeal from a judgment entered upon an order dismissing the complaint in an action to recover a deposit on account of purchase money in a transaction relating to the sale of real estate.</p>