Volume 48 — New York Miscellaneous Reports

<p>Inns and innkeepers — Loss of property of guest — Guests distinguished from boarders.</p> <p>The common-law liability of an innkeeper for the safety of the property of his guest was designed to protect travelers and wayfarers; and is not applicable to property, not of a character such as is usually taken to hotels by transient guests, which belongs to those who take rooms at a hotel and occupy them for sixteen months, with the exception of an absence of about five weeks, for which they make prices and final arrangements with the proprietors, though for no definite time, and to which they bring a piano, thus indicating more than an intention to make a temporary sojourn. If the relation of innkeeper and guest existed between the parties at first, under such circumstances, it was lost by the lapse of time.</p>

<p>Motion for nonsuit reserved until after verdict of the jury.</p>

<p>Action in partition.</p>

<p>Foreclosure of mortgages on land — Agreement postponing foreclosure — Mortgagor who has conveyed land may enforce agreement, when.</p> <p>An agreement to extend the time of payment of mortgages works an extension, itself, and is not merely an agreement to execute a contract to that effect, but will he enforced, if founded upon a valid consideration, where the mortgagor has refused to sign a formal extension agreement.</p> <p>Where a mortgagor had made an agreement with a mortgagee to extend the time for the payment of a mortgage and, thereafter, conveyed the property to one who assumed all incumbrances, the mortgagor was permitted to defend an action, prematurely brought, to foreclose the mortgage and set up the extension of the time for payment, the grantee’s assumption of the incumbrances, the grantee’s insolvency and the fact that a depreciated real estate market would result in a deficiency upon a present sale; and that, though the mortgagee waived any claim for deficiency against him.</p>

<p>Mechanics’ liens — Consent of owner or agent — Implied consent — None implied from visits of mere agent to collect rents — Lien Law, § 3.</p> <p>Where a sub-tenant agrees to take premises in the condition in whicli they are at the date of his lease, to put them, and thereafter keep' them, in repair, and the landlord himself is simply the owner of a leasehold which will terminate shortly after the lease he has made to the sub-tenant; and where the work done is of a temporary character and was imposed on the sub-tenant by the terms of his lease and no consent of the landlord or his agent is shown, except what may be inferred from frequent visits of one whose agency extended no further than the power of collecting rents; held, that the persons who had furnished the materials and performed the labor would have no lien upon the landlord’s interest.</p>

<p>Demurrer to a complaint in an action for negligence.</p>

<p>Place of trial—Change to proper county — Code of Civil Procedure, § 983 — Affidavit of merits not required.</p> <p>An action against the sheriff of Kings county for neglect to seize certain chattels located therein, as commanded by a warrant granted by the county judge of Onondaga county, must, under section 983 of the Code of Civil Procedure, he tried in Kings county; and a motion to change the place of trial, from Onondaga county to Kings county, must he granted.</p> <p>A change of place of trial to the county where the statute requires an action to he tried is matter of right and an affidavit of merits, upon the motion to change the venue, is unnecessary.</p>

<p>Statutory Construction law, § 24 — City of Buffalo — Charter, §§ 334, 337 — Holiday — Examination for public school teachers may be held Saturday afternoon.</p> <p>The provision of the Statutory Construction Law (L. 1892, ch. 677, § 24, as amd. in 1897) declaring that Saturday afternoon shall be deemed a public holiday “ for all purposes whatsoever as regards the transaction of business in the public offices of this state, or counties of this state” does not prohibit an officer from voluntarily performing an official act on such day, or render such act void or voidable, unless the act is such as to create an unlawful preference under the Recording Act or is prohibited by some other statute; and under a municipal ordinance (Ordinances of City of Buffalo, ch. 3, § 20) providing that “All offices in all departments and bureaus of the city government shall be open for the transaction of business on every day excepting Sundays and holidays from 8:30 o’clock A. M. until 4:30 o’clock P. M., and excepting on Saturday when the same shall be open from 8:30 o’clock A. M. until 12:00 o’clock M.’’, the board of school examiners are not prohibited from continuing an examination of applicants to secure positions as public school teachers, beyond noon on Saturday.</p> <p>The provision of the charter of the city of Buffalo (L. 1891, ch. 105, § 334) that the board of school examiners shall hold at least one stated meeting each month and (Id., § 337) that they shall hold stated public examinations at such of their regular meetings as they may designate, and at least as often as once every three months, of all the applicants, etc., and no statute prohibiting the holding of such examinations on Saturday, or requiring the said board of examiners to refrain from examining, on that day, persons who observe it as a day of worship, or obliging the board to grant such' persons a special examination on some other day, the court may not control the exercise of the discretion of said board to hold such examinations on Saturday.</p>

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

<p>Action to recover a penalty. Demurrer to complaint.</p>

<p>Trial of an action by taxpayers to prevent the payment, to the defendant Brandow, a former sheriff of Greene, county, of a claim presented by him to said board of supervisors at their annual session in 1904, and audited and allowed by said board but not yet paid; such claim being for costs incurred by said Brandow in successfully defending an action brought against him by an individual for improperly returning unsatisfied an execution issued to him as such, sheriff.</p>

<p>Municipal corporations — Control of streets — Grant of rights to street surface railroads — May grant to competing companies unless prohibited by statute.</p> <p>Unless prohibited by statute, the common council of a city may grant a franchise for a street surface railroad over substantially the same route embraced within the franchise of another street railroad corporation.</p> <p>Under section 102 of the Railroad Law (L. 1892, ch. 676) providing that “No street surface railroad corporation shall construct, extend or operate its road or tracks in that portion of any street, avenue, road or highway in which a street surface railroad is or shall be lawfully constructed, except for necessary crossings * * * without first obtaining the consent of the corporation owning or maintaining the same”, the consent of an existing corporation to the use of the streets occupied by it, is not a condition precedent to the right of a new and competing company to obtain the consent of the local authorities to its use' of such streets.</p>

<p>Associations — Membership — Expulsion — Review of expulsion by court — Consolidated Stock and Petroleum Exchange — Rights of member upon trial of charges — Submitting to jurisdiction — Definiteness of charges — Waiver.</p> <p>The general rule governing trials by voluntary associations is that of fair play and, before one can be deprived of his rights as a member by expulsion, he must have notice of any charges against him; and an opportunity to be heard in his-own defense, to confront his accusers and to examine witnesses and he must be tried by an impartial tribunal.</p> <p>A mere summons to appear before the board of directors, at a stated time, in the directors’ room, to give such information as they require under the provisions of a certain article of the constitution of the association, upon the back of which is printed the by-law giving the directors authority to require the attendance of any member as a witness or otherwise, is not sufficient; but, in fairness to the accused member, he should also be given notice of the charges preferred against him, even in the absence of any provision therefor in the constitution and by-laws.</p> <p>Where, in an action to have it adjudged that plaintiff is a member of defendant, the Consolidated Stock and Petroleum Exchange, a voluntary unincorporated association, and that it and its officers be restrained from interfering with his rights and privileges of membership, the answer, among other defenses, pleads plaintiff’s expulsion, after due trial, the burden of proof of the service of a notice of the charges upon plaintiff is upon the defendant; and where the plaintiff testifies that the aforesaid summons was the only paper received by him, and defendant’s secretary testifies that he put a copy of the charges in the same envelope containing the summons and charges, and its messenger testifies that he does not know what the enevelope which he served contained, defendant fails to sustain the burden of proof.</p> <p>Where the plaintiff in such action appeared before the board of directors, heard the charges read, a copy of which was handed to him, and where he was present during the entire time that evidence was presented, was given an opportunity to cross-examine and to make any statement he desired, acquiesced in the procedure and made no objection of any kind, nor any request for further opportunity to be heard, he must be held to have submitted to the jurisdiction of the board and waived service of the charges in advance of the trial.</p> <p>A charge, that plaintiff, a member of a certain firm, naming it, up to a certain date, with obvious fraud and false pretense, did acts detrimental to the interest and welfare of the Exchange, in connection with purchases and sales of stock supposed to be made for a certain person, naming him, between June 15, 1900, and August 16, 1900, the date of plaintiff’s withdrawal from his firm, although somewhat indefinite in form-, was sufficient to fairly inform the plaintiff that he was charged with obvious fraud, defined by the by-laws, in transactions with a particular customer, within two specified months; but, if defective, plaintiff, by submitting to trial thereon without objection, had waived the defect.</p> <p>■"Where, in such case, it appears that the board of directors was properly convened and proceeded regularly under the constitution of the Exchange and plaintiff, after a fair opportunity to be heard, is expelled by the vote provided by the constitution and by-laws; and the case discloses that plaintiff had a fair and impartial trial and there is evidence to support the charges upon which the directors, who are the judges of its sufficiency, could base their judgment of expulsion, defendant is entitled to judgment with costs.</p>

<p>Action for partition.</p>

<p>Eminent domain — Measure of compensation—Temporary inconveniences— Cause of action—Damnum absque injuria.</p> <p>Where, in the construction of the subway in the city of New York through that part of Fourth avenue lying between Fourteenth and Seventeenth streets opposite Union Square, the contractor began work on the west side of the roadway and excavated a trench twenty-five feet deep, extending eastward to a point near the street railway tracks, and then, in order to take care of the railway, which was operated by electricity, and the electric cables and conduits that belonged to it, built a structure, elevated above the surface of the street, upon which the car tracks were laid and through which the cables ran, so that the work of excavation might proceed beneath it and eastwardly to the east curb of the roadway, which structure was fenced on the sides, except at the street intersections where a sloping incline led down to the level of the side streets; and where it appears that the structure could have been avoided, if the excavation had been begun from the east side, and that it might have been built over the excavation on the west side; but that, on account of the character of the excavation, the hazard to the buildings would have been greater if begun on the east side and, on account of the surrounding conditions, the erection of the structure for the railway on the west side would have unduly delayed the work and increased its costs and, for such reasons, the suggested changes in the method of prosecuting the work, though possible, were not feasible; and where it appeared that the plaintiffs, who had a drug store on the southeast corner of Fourth avenue and Seventeenth street, suffered loss in their business in consequence of the inconvenience to their patrons who came in carriages, resulting from the elevated structure in front of their store, where was the only entrance to it, held, that the action of the contractor was authorized by law; that it exercised the skill and care contemplated by the law in the execution of its work and is not liable in damages to the plaintiff.</p>

<p>Action by the assignees of the vendor to compel the specific performance of a contract for the sale of real property.</p>

<p>Divorce — Counsel fees to wife defending action — Invalid foreign decree against husband no bar.</p> <p>Where, in a husband’s action for a divorce, the wife denies, under oath, the charge of adultery alleged in the complaint, she will be allowed counsel fees to defend the action, even though the husband, on motion therefor, submits affidavits in support of the charge.</p> <p>The fact that defendant left the plaintiff, went to another State to live and there obtained a divorce from him, which, under the authorities of this State, was not binding upon him, is not a bar to her right to counsel fees in the husband’s action for divorce as she, in this State at least, is still Ms wife.</p>

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

2353 Third avenue New York city, without any liquor tax certificate in the premises other than one which had been duly revoked under the provisions of the Liquor Tax Law.

<p>Railroad Law (L. 1890, ch. 565).— Street surface railroads — Consent of ’ property owenrs — Value how estimated.</p> <p>Where one of the pieces of property, on a street through which it is proposed to construct a surface railroad, relied upon and included by the railroad company toward making up the “ one-half in value ” required by section 91 of the Eailroad Law (L. 1890, ch. 565, as amd.) which, among other things, provides that a street surface railroad shall not be built unless the consent in writing of the owners of one-half in value of the property bounded on that portion of a street or highway upon which it is proposed to build such railroad shall have been first obtained, occupies an entire block, having a frontage of 534 feet on the street in question and running back between the two streets on either side a distance of over 800 feet to the street in the rear, and is owned by the Ursuline Convent which maintains thereon an academy and chapel, located approximately in the center of the block, and the grounds, so far as improved, are devoted to lawns, shrubbery, groves, gardens and such other purposes as are incidental to the uses of the school conducted by the convent as a boarding and day school, the entrance both for carriages and pedestrians being upon the street in question, only such proportion of the entire assessed valuation of the block as represents the part of the property abutting upon the street in question may be included for the purpose of making up the “ one-half in value ” required by the statute.</p> <p>A claim that only the front of the street to a depth of 100 feet should be reckoned in, giving such lots the value of similar unimproved lots on adjacent blocks, would be obviously unfair, because, if followed out on all the streets bounding the block, it would leave entirely out of account an interior piece over one-half in area of the entire block (comprising all that was more than 100 feet back from the several streets) and on which are located all the buildings; on the other hand, to include the entire assessment would be equally unfair in the other direction and give said property undue voting power on an important proposition which concerns, especially, the property immediately fronting the proposed railroad and having a frontage on no other street. Such a construction would give the owner of such a block approximately four times the voting power of other owners and in four different places and would be totally subversive of the principle of equal representation on which the statute is based.</p> <p>A claim that, under a further provision of said section 91, that “ The value of the property above specified shall be ascertained and determined by the assessment roll of the city, village or town in which it is situated, completed last before the local authorities shall have given their consent,” not only must values be ascertained and determined in accordance with the values found upon the assessment-roll, but the subdivisions into which property is divided upon such assessment-roll afford the only guide for determining what shall be included, and what shall be excluded, and that, so long as the-parcel is bounded upon the street to be occupied and is found upon, the assessment-roll, it must be included as assessed in the computation both of the total value and of the value of the property whose owners have consented, is untenable, as such a construction, would deprive the courts of the power of determining what land is to be deemed as “ bounded on ” the street in question within the-meaning of the statute and, also, of making any apportionment of an assessment as laid and as appearing on the assessment-roll.</p> <p>Where the court, upon a consideration of the total assessment, the figures of which are such that it is not necessary to enter into any niceties of valuation or computation in making an apportionment, find that the total valuation for which consents have been obtained is less than the required one-half, the owners of property abutting on the street in question are entitled to an injunction restraining the defendant company from continuing the construction of a railroad through such street.</p>

<p>Pleading — Complaint — Separate counts on same cause of action — Election between counts not compelled.</p> <p>Where a complaint alleges: (1), the sale and delivery of a certain amount of sugar, under an express contract, at an agreed price, and claims a balance due; (2), the sale and delivery of the same quantity, stating the same price to be its reasonable worth, and claiming exactly the same balance due; and (3), that defendant came into possession of a certain amount of sugar, belonging to plaintiffs, of the value of the balance claimed to be due, the wrongful detention of the same, and that the plaintiffs elect to waive the conversion and demand payment, as upon an implied contract, with the defendant’s refusal to pay the same and the plaintiffs’ damage in the amount named; the several causes of action are not so inconsistent and repugnant, that plaintiffs should be compelled to elect upon which they will rely, and a motion to compel such election will be denied.</p>

<p>Motion to strike out a summons.</p>

<p>Writ of habeas corpus.</p>

<p>Motion for an injunction. The opinion states the case.</p>

<p>Insurance — Accident — Construction of contract — Actions on policies — Limit of recovery — “ Cost ” distinguished from “ costs</p> <p>Where the liability of a casualty company, under a contract to indemnify the plaintiff “ against loss from common law or statutory liability for damages on account of bodily injuries * * * accidently suffered”, is in terms limited to $5,000 and as conditions precedent to an action on the policy it is provided; (1), that, in case of a suit for damages on account of an accident covered by the policy, the company will defend the proceedings, in the name and on behalf of the assured, or settle the same at its own cost unless it shall elect to pay the indemnity provided for; (2), that the assured shall not settle any claim, except at his own cost, nor incur any expense except for such immediate surgical relief as is imperative, and shall aid in securing information and evidence and in effecting settlements and secure the attendance of employees as witnesses at inquests or in suits without charge for their loss of time; (3), that no action shall lie for any loss under the policy except by the assured to reimburse him for loss actually sustained and paid by him in satisfaction of a judgment after trial, the insurance is not against liability but against loss from liability; and where plaintiff pays a judgment, inclusive of costs and interest, in excess of the stipulated limit, the company, upon reimbursing him to the extent of $5,000, is not liable: (1), for the interest on the verdict, or any part thereof, to the entry of judgment; or, (2) , for the taxable costs of the suit and interest thereon; or, (3) , for interest on the verdict as a result of its alleged delay in prosecuting the appeal from the judgment where no unreasonable delay appears.</p> <p>Whether the judgment, inclusive of costs and interest, is in excess of or less than the stipulated limit of liability, the satisfied judgment constitutes a loss “from common law or statutory liability”; but, where" it is greater, the company is not liable for any part of the excess by virtue of the provision that if any suit is brought “ the company will defend against such proceedings, in the name and on behalf of the assured, or settle the same at its own cost, unless it shall elect to pay the assured the indemnity provided”; as the term “ cost ” therein, does not include taxable costs. Defendant did not obligate itself to defend the action and pay the costs, but only to defray the expense of carrying on the litigation.</p>

<p>Foreclosure of mortgages on land — Foreclosure by advertisement — Sale — Persons concluded — Summary proceedings — Code of Civ. Pro., §§ 2232 and 2395 — Purchaser in good faith—Title duly perfected.</p> <p>Where a mortgage, executed in 1869, upon which no principal or interest had been paid since November 30, 1874, was assigned, in 1904, and it appears that, in 1874, the mortgaged premises were conveyed by warranty deed which did not in any way refer to the mortgage and, shortly before foreclosure of the same, by advertisement, the premises were sold to defendant who neither assumed nor recognized the mortgage in any way, but her attorney appeared at the foreclosure sale and gave notice that the mortgage was invalid by reason of lapse of time since any payment had been made thereon and the notice of sale set forth all the facts, the assignee, as purchaser at the sale, is not a purchaser in good faith within section 2395 of the Code of Civil Procedure; nor is his title duly perfected, as required by section 2232, and he is, therefore, not entitled to maintain summary proceedings to remove the defendant from the premises.</p> <p>It seems, that petitioner’s remedy is an action in ejectment, or an action, under the Code, to compel the determination of a claim to real property.</p>

<p>Pleading — Construction of pleadings — Favorable to pleader—Contracts— Parties by whom enforceable — Citizen may enforce contract between city and telephone company — Validity — Consideration.</p> <p>Under the rule that a pleading should be liberally construed in favor of the pleader, a demurrer not only admits the direct allegations of a complaint but, also, whatever may be fairly inferred therefrom.</p> <p>Section 102 of the Transportation Corporations Law (L, 1890, ch. 566), by virtue of which telephone companies have the right to pass over the public streets of a city, gives such companies no rights in the public parks, or upon public property, or public places of the city, outside of the highways; neither does it deprive the city of its police power under which it may determine whether the lines are to run upon poles or in subways; and where, in consideration of the granting of a franchise, a telephone company agrees to furnish to the citizens service at two dollars a month, the party served to furnish his own telephone, there is a sufficient consideration between the company and the city to support the contract; and plaintiff, who, at the request of the company, signed a petition presented to the common council of the city embodying the terms of service and requesting that the contract be made and the franchise granted, may insist that the defendant comply with its terms and conditions so far as he is concerned; but the company may, for its own accommodation, use its own telephone without charge to plaintiff.</p> <p>A court of equity has power to compel a public service corporation to furnish all citizens, alike, with service, at a reasonable and just price and at uniform rates, and to prevent discrimination.</p>

Motion by plaintiff to strike out as irrelevant the whole of paragraph sixth and a portion of paragraph second in each of the answers of the defendants in this action.

<p>Sunday — Public traffic a misdemeanor — Laws regulating observance not unconstitutional — Penal Code §§ 263, 264 and 267 — Habeas corpus.</p> <p>Where the returns to a writ of habeas corpus show that the petitioners were arrested for opening their place of business for the sale of, and selling, upon Sunday, groceries, which were not among the exceptions permitted by statute, the petitioners will be remanded to the custody of the officers.</p> <p>The observance of Sunday as a religious and civil institution is recognized by our Government and §§ 263, 264 and 267 of the Penal Code, regulating its observance, must be liberally construed for its protection and are not unconstitutional.</p>

Complaint in equity to set aside certain instruments in writing executed as collateral security for the repayment of loans alleged to he usurious, and for an acounting for the moneys alleged to have been collected by the defendant’s testator, to the use of one of the plaintiffs, under the instruments referred to.

<p>Motion for injunction pendente lite in an action brought by plaintiff, as a taxpayer, to restain the carrying out of a contract made by the Aqueduct Commissioners for the construction of a certain reservoir.</p>

Action by assignee of claim against decedent’s estate upon the official bond of an administrator. The opinion state* the case.

<p>Municipal corporations — Remedies of taxpayers — Questions raised in taxpayer’s suit — Constitutional law—Distribution of powers — Delegation of legislative powers — Williamsburgh bridge—Powers of commissioner of bridges of the city of New York.</p> <p>Where the complaint in a taxpayer’s action to annul, as illegal, under certain sections of the Greater New York charter, a contract for the operation of street cars over the Williamsburgh bridge and to restrain the performance of such contract, fails to allege fraud, collusion or bad faith on the part of the municipal officer in so contracting, the sole question is whether he had power to make the contract.</p> <p>The legislature has full power to provide for and to regulate the construction, control, care, management and operation of the Williamsburgh bridge and may delegate all its powers in that regard, the restrictions of the Constitution (art. 3, § 18) not being applicable thereto.</p> <p>By special act (L. 1895, ch. 789, as amd. L. 1896, ch. 612) the construction of the Williamsburgh bridge, over the East river, which upon completion was to be “ a public highway ” between the cities of New York and Brooklyn, was authorized by commissioners named as provided by said statute and the care, management and control thereof were vested in said commissioners and their successors with like powers as the trustees of the New York and Brooklyn bridge, including the right to operate, or to authorize the operation of, a railroad or railroads on the bridge and to fix the passenger fare therefor unless otherwise provided; but, by the enactment of the revised and amended charter (L. 1897, ch. 378, as amd. L. 1901, ch. 466) abolishing the Williamsburgh bridge commission and devolving all its powers and duties upon the commissioner of bridges of the city of New York, the legislature has otherwise provided.</p> <p>A contract for ten years, terminable on breach of condition or of covenant, made by said commissioner of bridges for the operation of cars upon said bridge, involving the use of the railroad tracks and electrical equipment owned by the city, upon the payment of a stipulated sum per annum for the use of said equipment, the operating company agreeing to keep the same and the surface tracks in good order and repair and to pay “ five cents per round trip for each and every car operated or transported ” across said bridge, was clearly within his delegated statutory powers, did not contravene the charter provisions (§§ 44, 45 and 71-77), and did not create a franchise or confer any right beyond the duration of the contract period.</p>

Action to set aside certain conveyances made by Frederick W. Mertens, decéased, to the defendant Frederick W. Mertens, as in fraud of creditors of the grantor, under section 232 of the Real Property Law.

<p>Conspiracy — Criminal liability — Overt act — Criminal procedure — Place of prosecution.</p> <p>Where parties corruptly agree together, in the State of New York, to make a sale of corporate shares to a person residing in Paris, for more than they are worth, by false representations respecting their value, and, in pursuance of such agreement, one of them, in New York, sends cablegrams and messages to the proposed purchaser in Paris containing such representations, an indictment of all the parties for conspiracy in the State of New York will be upheld, though, when such messages are sent, some of the parties are elsewhere.</p> <p>Conspirators may be indicted in any county where an overt act is committed by them, or any one of them, in pursuance of an illegal agreement, though the crime, which is the object of the conspiracy, is to be committed elsewhere.</p>

Action by a trustee in bankruptcy to recover moneys collected by the defendant on accounts assigned to it by the bankrupt within four months prior to the adjudication.

<p>Suit in equity to determine rights under an assignment of corporate stock made by the city of Utica. The opinion states the case.</p>

<p>Dower — What will release or bar dower — Divorce as a bar.</p> <p>Where a wife obtained a judgment of separation from her husband in this State and then went to Kansas where she afterward procured an absolute divorce from him on the ground of cruelty, without personal service upon him or his appearance in the action; and afterward married, she, at least, is bound by the judgment and can neither recover dower in lands thereafter acquired by her husband, nor in lands which he owned at the time of the divorce. Having voluntarily put an end to the marriage relation for a cause deemed inadequate in this State, public policy will not be promoted by allowing her claim for dower.</p>

<p>Motion to suppress a deposition taken without the State.</p>

<p>Landlord and. tenant — Termination of relation — Surrender — Facts from which surrender not presumed ■—Evidence — Burden of proof.</p> <p>In a Justice’s Court action for rent, payable in advance, under a lease for a year to commence May 1, 1903, allegations that defendant, as tenant, occupied the premises during the term and until April 1, 1904, when the lease was surrendered, and that the rent for the preceding four months was unpaid, were denied, and the answer alleged a surrender of the lease and acceptance by the plaintiff before any of the rent sued .for became due. Upon appeal from a judgment in favor of plaintiff, held, that the affirmative was with the defendant to maintain his defense.</p> <p>The testimony as to the delivery of the keys to plaintiff before December 1, 1903, whether she took them out of the hands of defendant’s agent and placed them in the hands of her own agent, and whether he acted for her as owner, or for the defendant, being conflicting, the judgment appealed from should not be disturbed.</p> <p>Uncontradicted testimony that, between November 15, 1903, and December 1, 1903, plaintiff refused to let defendant’s agent enter the house to get property, while tending to show the exercise of dominion over the premises by plaintiff inconsistent with the relation of landlord and tenant was not conclusive; and, in the absence of proof that defendant’s agent could not have entered without permission and since, so far as the testimony showed, defendant or his agent might have entered at any time, or might then have been in possession, the justice committed no error in finding that defendant had failed to sustain the burden of proof.</p> <p>Testimony that a “ To Let ” sign was put upon the house in November, 1903, was no proof that the plaintiff either posted it herself or authorized it to be posted.</p> <p>Where the written lease, containing a stipulation permitting the landlord, upon the premises becoming vacant, to re-enter and relet the same as agent of the tenant, was admitted by the answer and no question of its identity was raised upon the trial, an objection that sufficient evidence had not been produced to justify its reception in evidence was too general and, under the stipulation of the lease, the act of re-entry and attempts to relet, claimed as proof of an implied surrender, were, if proved, by the tenant’s express authority.</p> <p>The burden of proof as to the time when repairs, made before April 1, 1904, and not necessary to preserve the property, were made, was upon the defendant, as non constat they might have been made after March 1, 1904, when the last installment of rent was due.</p>

<p>Appeal by defendant Gebo from a judgment of a Justice’a Court rendered in favor of plaintiff.</p>

<p>Suit by a taxpayer to restrain the waste of the funds of the city of New York by payment of salaries to defendants Worstell and McNamara for the positions of superintendent and Assistant Superintendent of Public Baths and Comfort Stations in the borough of Brooklyn.</p>

<p>Mortgages — Title and rights of parties — Rights of mortgagee in possession— Consent of mortgagor when presumed—limitations of actions — Suit in equity — To redeem against mortgagee in possession.</p> <p>The common-law right of a mortgagee after default to maintain an action of ejectment against the mortgagor and all claiming under him to obtain possession of the mortgaged premises was taken away in 1830 by the Revised Statutes (2 R. S. 312, § 57).</p> <p>A mortgagee who obtains possession under his mortgage by the consent of the mortgagor, or his successor in interest, may not be ousted unless the premises are redeemed by payment of the mortgage; and the consent of the owner of the fee may be found from slight circumstances, especially after a long lapse of time.</p> <p>Where premises, covered by a purchase-money mortgage given in 1877, were conveyed the same year and, though no sale took place under a judgment of foreclosure and sale, the mortgagee, in 1879, entered upon the open and visible possession of the premises which continued for twenty-five years without objection on the part of the grantee who neglected to pay the taxes and abandoned the property in every way, a finding is justified that the mortgagee went into possession by the consent of the mortgagor and that, in 1904, her title was absolute and a suit for the redemption of the premises was barred by the Statute of Limitations (Code Civ. Pro., § 379).</p>

<p>Action to establish and enforce a trust.</p>

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

<p>Attachment — Affidavit to obtain — Sufficiency — Averments as to grounds — City Court of the city of New York — Code Civ. Pro., § 3169.</p> <p>An affidavit that defendant is in custody, in default of $2,000 bail, to await the action of a magistrate and may be discharged at any time, in which event he will leave this State for the purpose of defrauding plaintiff,’'is insufficient to bring the case within the provisions of section 3169 of the Code of Civil Procedure; and an attachment granted upon such affidavit will be vacated upon motion.</p>

Appeal By the plaintiff from a judgment of the Municipal Court of the city of New York, twelfth district, borough of Manhattan, rendered in favor of the defendant for the dismissal of the complaint, hut not upon the merits.

<p>Appeal from an order of the Oity Court of the city of Hew York, denying defendant’s motion for a new trial.</p>

<p>Motions and orders — Specifying motion papers — Resettlement must be by court below — Laches — Appeal—Effect of appeal — Power of court below after appeal.</p> <p>An appeal from an order must be heard upon the papers enumerated therein; and, as under rule 3 of the General Rules of Practice, all papers used or read on a motion on either side must be specified in the order, the remedy for a noncompliance with the rule is by motion in the court below for resettlement of the order, not by motion to recall the case on appeal for the purpose of having incorporated therein papers claimed to have been used upon the motion.</p> <p>Where an order is entered in June, application for its resettlement made in October, when an appeal therefrom is ready for argument, if granted at all, should be upon terms.</p> <p>After the printed papers upon an appeal from an order have been served and filed, the court below has no control or authority over the record and cannot enforce an order for its recall.</p>

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

<p>Foreign corporations — Powers, duties, rights and liabilities — Right to sue — Banking Law, § 31 — Municipal Court Act, § r8.</p> <p>The mere bringing of an action by a foreign corporation upon a promissory note is not doing business within the provision of the Banking Law (L. 1892, ch. 689, § 31) that no foreign corporation, incorporated for the purpose of carrying on the business specified in articles 5, 6, and 7 of said law, shall transact business in this State without the written certificate of the superintendent of banks.</p> <p>The right of a foreign corporation, authorized to do business in this State, to maintain an action, in like manner and subject to the same regulations as a domestic corporation, is not affected by the extension of the jurisdiction of the Municipal Court (Municipal Court Act, § 18; L. 1902, ch. 580) to actions against foreign corporations having an office in the city of New York.</p>

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

Appeal by the defendant from a judgment of the City Court of the city of New York, rendered in favor of the plaintiff, upon the verdict of a jury.

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

<p>Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, Eleventh District, borough of Manhattan, in favor of the plaintiff for the sum of fifty dollars.</p>

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

Appeal by the tenant from a final order in summary proceedings, awarding possession of premises to the landlords, rendered in the Municipal Court of the city of New York, fourth district, borough of Manhattan.

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

<p>Appeal from a judgment of the Municipal Court, of the city of Hew York, fifth district, borough of Manhattan, in favor of the plaintiff for the sum of seventy-six dollars and thirty-six cents.</p>

Appeal by the defendant from a judgment entered in favor of the plaintiff after a trial before the court and a jury in the Oity Court of the city of New York.

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

Appeal by the defendant from a judgment entered in favor of the plaintiff after a trial before the court and a jury in the City Court of the city of New York.

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

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

Appeal by the defendants from a judgment of the Oity Court of the city of Hew York, entered in favor of the plaintiff, upon the verdict of a jury.

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

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

<p>Municipal corporations — Officers other than mayor and common council— Compensation — Civil Service Law, § 12 — Coroner’s private clerk.</p> <p>The addition to the class exempt from competitive examination, made by the municipal civil service commission of the city of New York, under the direction of the Supreme Court, of “ one clerk to each coroner in the borough of Manhattan ” is the addition of a new office to the classified list and not a transfer of an office from the competitive to the exempt class; and, where one who did not hold the office of assistant clerk was appointed private clerk to a coroner on December 1, 1902, at which time no salary attached to the latter position, he has no legal claim against the city for salary for tbe month of December, 1902, though he performed the services of an assistant clerk and there was an unfilled vacancy in sue!) position.</p>

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

<p>Appeal by the defendant from a judgment entered in the City Court of the city of New York, upon the verdict of a jury, in favor of the plaintiff.</p>

Action by taxpayer to restrain the board of supervisors of Essex county from removing the county seat from Elizabethtown to Westport.

<p>Municipal corporations — Police department — Retirement on pension — Only on certificate of surgeons individually — “Unfit for duty” not equivalent to “unfit for full police duty” — Greater New York Charter, § 276.</p> <p>The Greater New York Charter (L. 1901, ch. 466, § 276) does -not constitute the forty police surgeons, allowed thereby, a board; and a rule of the police department cannot constitute them such.</p> <p>The police commissioner of the city of New York has authority to remove a policeman and place him on the pension fund roll only upon a certificate of “ so many of the police surgeons as the police commissioner may require ” showing that he is “ permanently disabled, physically or mentally, so as to be unfit for duty”; and •a certificate which purports to be a resolution passed by the “ board •of ' surgeons of tlie police department ”, certified by the board’s president and secretary, which does not show how many or who of the forty police surgeons were present or how those present voted on the resolution, is ineffectual.</p> <p>The requirement that the certificate shall state that the policeman “is permanently disabled, physically or mentally, so as to be unfit for duty” is not satisfied by the statement that he is unfit “ for the performance of full police duty ”.</p>

Motion to vacate a temporary injunction restraining the defendant from setting poles in the streets of the village of Carthage, and from attaching to any of the poles set since January 1, 1905, any cross arms or wires.

<p>Reference — Compensation of referee — Liability of parties — Amount</p> <p>Where a cause is referred by stipulation, each of the parties is liable for the fees of the referee; and where the cause is, after several hearings and without the knowledge or consent of the referee, terminated by stipulation for judgment in favor of the plaintiff, he is liable to the referee for his fees, although no report was made and filed.</p> <p>In such case, the recovery must be limited to the actual hearings before the referee and to those adjourned days when the parties met and further adjourned, whether evidence was taken or not.</p>

<p>Demurrer to an answer in an action upon a promissory-note.</p>

<p>Action brought by plaintiff to determine the amount of her legacy under a will.</p>

<p>Constitutional law — Distribution of powers — Powers of Legislature" as to appropriations; taxation; usury — Deprivation of property without due process — State Constitution, art. 3, § 20; art. 10, § 2 — Federal Constitution, fourteenth amendment — Mortgage Tax Law held constitutional.</p> <p>The provision of the Mortgage Tax Law (L. 1905, eh. 729, § 307) that, after receiving the tax moneys from the recording officer, the treasurer of the county, or chamberlain of the city, in the case of the counties embraced in New York city, shall “ transmit one-half of this net amount collected under the provisions of this article, to the state treasurer * * * And the remaining portion thereof in the counties of New York, Kings, Queens and Richmond shall be paid into the general fund of the city of New York and be applied to the reduction of taxation, and in the other counties of the state the remaining portion shall be held by the respective county treasurers subject to the order of the board of supervisors as hereinafter provided ”, does not violate the constitutional provision (Const., art. 3, § 20) that, “ The assent of two-thirds of the members elected to each branch of the Legislature shall be requisite to every bill appropriating the public moneys or property for local or private purposes ”, as the portion of the tax allowed to the several counties is retained therein and never reaches the State treasury.</p> <p>The act making no distinction between persons in the same class or condition does not violate the fourteenth amendment to the Federal Constitution in denying the equal protection of the law to the holders of mortgages recorded after July 1, 1905, although it bears unequally in the sense that it only applies to mortgages recorded after that date; but such inequality is more or less incident to any tax law and is not the form of evil at which said constitutional amendment was aimed.</p> <p>The power of the Legislature to declare what is or is not usury is unrestricted and, therefore, the provision of said act (§ 309) that, “Any contract or agreement in respect to any mortgage obligation or deed of trust, other than mortgage obligations .and deeds of trust executed by corporations, by which the mortgagor shall" agree or be bound to pay the tax or any part thereof imposed by this article, shall be usurious and void ” is not an unconstitutional interference with the freedom of contract.</p> <p>That there is no provision for notice or opportunity to be heard concerning the tax on mortgages which are offered for record for the first time, nor any provision for ascertaining the actual value of the obligation of the mortgage, does not render the act unconstitutional upon the ground that it deprives citizens of their property without due process of law.</p> <p>The power of estimating and computing the amount upon which the tax shall be paid is not a power of assessing in any correct sense; and, as whatever power there is in this respect is given to local officers, viz., the recording officers of the respective counties, said act cannot be declared violative of article 10, section 2, of the State Constitution and of the principle of home rule therein embodied, upon the contention that it withdraws from local assessors the right and power theretofore possessed and exercised by them of assessing and taxing tangible property.</p>

<p>Election of officers — Irregularity and ambiguity in ballot — Intention of elector to prevail, where no statutory rule is violated — Review by court.</p> <p>Where the intention of an elector is apparent his ballot should be counted, unless there is some clear and positive prohibition in the statute against such counting, or unless so doing would be in contravention of the general policy of the Election Law and a fair construction of its language.</p> <p>The provision of the Election Law (L. 1896, ch. 909, § 110, subd. 2, rule 7) that (subject to the rules therein provided which, for the most part, declare what shall be the significance and effect of certain marks the most likely to occur) “if the elector marks more names than there are persons to be elected to an office, or if for any other reason it is impossible to determine the elector’s choice of a candidate for an office to be filled, his vote shall not be counted for such office, but shall be returned as a blank vote for such office ”, sets up as a general test, in all cases not specifically provided for in the preceding rules, the possibility of determining the elector’s choice. If it is possible to determine such choice, his ballot is to be counted as he intended; if it is impossible to so determine, his ballot shall not be counted, but treated as a blank to that extent.</p> <p>The theory of allowing a mark in a particular circle to count as a vote for all candidates under that circle, except such as the elector has indicated his intention not to vote for by making a voting mark in the space before the name of some candidate or candidates on some other ticket, and of counting the ballot for such other candidate or candidates thus individually designated, is that a general choice shall be given effect except where in conflict with a particular choice; but where the name of an individual is printed alone in a column, the specific intention to vote for that individual is as indubitably expressed by making the mark in the circle as by making it before his name. In either case it is only that candidate, and nobody else, that the elector can have intended to choose.</p> <p>Upon a judicial investigation of alleged void and protested ballots cast in the county of New York at the general election in 1905, it appeared that William Travers Jerome was a candidate for district attorney and that, upon all the ballots in dispute, his name appeared alone, in a column under the party title, “The Jerome Nominators”, at the head of which was a black square, a device or emblem duly chosen in conformity with the Election Law. There was the customary voting circle at the head of this column and, also, the customary voting space before his name which did not appear in any other column; and each of the other tickets, viz., the Republican, Democratic, Socialistic, Prohibition, Socialistic Labor and Municipal Ownership League, had its candidate for the office of district attorney. The tickets of the first two parties mentioned contained the names of candidates for all offices for which the elector could have voted, and the ticket last mentioned was nearly a complete one.</p> <p>Held: Ballots marked in the Jerome circle as well as in the circle of some other ticket, should, in accordance with the express declaration of the statute (Election Law, § 110, subd. 2, rule 6) and the decision of the Court of Appeals, be counted for all offices except that of district attorney; that is to say, candidates whose name appeared on both ticket's or on one ticket without any competitor on the other ticket are voted for by such ballot. A ballot marked in the circle at the head of the Municipal Ownership League ticket and at the head of the ticket bearing Mr. Jerome’s name alone should not be treated as a blank ballot as far as the district attorneyship was concerned, the intention of the elector being clearly manifest, and, there being nothing in such method of marking to violate any positive prohibition of the Election Law or its general policy and purpose, such ballot should be counted for Mr. Jerome.</p> <p>A ballot marked in the Republican circle, in the voting space before the name of Mr. William Randolph Hearst, the candidate for mayor on the Municipal Ownership League ticket, and in the voting space before Mr. Jerome’s name, is not affected by the additional mark in the circle above the latter’s name, it being clear that the elector intended to vote for Mr. Hearst for mayor, for Mr. Jerome for district attorney and for the Republican candidates for all other offices; and, unless it appears that the marking was made for the purpose of identification, such intention should he given effect. It would be a very strained interpretation to hold that such marks were intended for distinguishing marks, or could have that effect; besides, under rule 2, subdivision 2, of section 110 of the Election Law, the mark in the voting space below the circle should be treated as surplusage.</p> <p>The power of the court in this proceeding is not limited to determining whether the ballots in question are valid or void, but it may go further and determine for what particular candidates they should be counted. Exercising such power, it is determined that all the ballots in dispute should be counted for Mr. Jerome for the district attorneyship and for the candidates for the other offices as above indicated, if, and so far as, they have not already been so counted.</p>

Judicial investigation of alleged void and protested ballots cast in the county of Hew York at the election held on November 1, 1905, made under a writ of mandamus pursuant to section 114 of the Election Law.

<p>Nuisance — Action for injunction and damages—When operation of works though a nuisance will not be enjoined — Costs — When not allowed to prevailing party.</p> <p>Where a corporation, which has invested $650,000 in a cement plant located in a sparsely settled community, is using the most improved apparatus and is not negligent in the conduct of its business but, whenever the wind is in the right direction, smoke, dust and ashes are carried from the stacks of its rotary furnaces over and upon plaintiff's premises about 1,000 feet away, leaving a heavy deposit of dust both within and without her house, covering food, clothing and furniture and causing discomfort and annoyance to the occupants, in consequence of which the rental value of the premises is decreased, the manner of operating the works constitutes a nuisance as to plaintiff and defendant is liable for the damages caused thereby.</p> <p>But as the occasional injury to plaintiff, depending upon the direction of the wind, does not exceed twenty-five dollars a year in decreased rental value of the premises, a permanent injunction, which would compel defendant to close its works, should not be granted; and the complaint should be dismissed, but without costs.</p>

<p>Judgment — Action to set aside or enjoin enforcement — Laches.</p> <p>A court of equity will not set aside a judgment rendered by a justice of the peace upon defendant’s default, either because the judgment was obtained by perjury or because defenses existed which might have been, but were not interposed, where the defendant neglected his remedy by appeal.</p> <p>Where an offer is made to a debtor of a receipt in full upon payment of three dollars and a half and costs and, upon his refusal, action is begun in Justice’s Court and the day before the return day of the summons he sends his creditor a check for five dollars upon which is written “ to balance accounts ”, and after the erasure "of such words the check is presented and paid and the debtor, supposing the matter settled, neglects to appear before the justice and the creditor upon making proof obtains judgment not only for the three dollars and a half but also for the amount of two notes made by his debtor, which were barred by the Statute of Limitations, and where if there is any fraud in the case it consists either in the fact that the defendant, in the absence of the plaintiff, swore falsely that he was the owner of the notes, or in the fact that he failed to state that plaintiff had certain defenses to the notes, and where no appeal is taken, the debtor cannot maintain an action to enjoin the enforcement of the judgment or to set it aside for fraud.</p>

<p>Action for an injunction to enforce observance of building covenants on an ocean shore front.</p>

<p>Parties — Bringing in new parties — What parties should be brought in— Code of Civil Procedure, § 452.</p> <p>The provision of section 452 of the Code of Civil Procedure that where a complete determination of a controversy in suit, cannot be had without the presence of other parties, the court must direct them to be brought in, is properly construed, as requiring only such parties to be brought in, who would have been, by reason of their interest, either proper or necessary parties at the time the suit was brought.</p> <p>Where in an action to set aside a contract' between a railroad company and certain of the defendants and to cancel stock and bonds claimed to have been illegally, issued by them while controlling the company and, if the stock and bonds have been transferred so that they cannot be reached, to recover the value thereof from other defendants, father and son, who were bankers under a firm name, the complaint alleges that a certain amount of illegal stock was transferred to said firm and by it transferred to another of the defendants, for the purpose of carrying out the illegal designs of those defendants who had made the contract with the railroad company and to prevent the following up and canceling of said stock, and it is conceded that any interest which the banking firm had in the stock was transferred prior to the commencement, of the action, the estate of one of the members, since deceased, of said firm, has no legal interest in the subject-matter of the litigation and his executors are not entitled to be made parties defendant in his place, upon a claim of absolute right to intervene under the mandatory provisions of section 452 of the Code of Civil Procedure, as any act claimed to have been done by, or any liability claimed against the deceased, arises from the partnership transactions of his firm, and the solvent surviving partner, and not the representatives of the deceased partner, has control and management of the partnership affairs and litigation.</p> <p>The executors of said deceased defendant, in order to become parties, must seek their rights under the provisions of the Code relating to proceedings in an action after the death of a party. (Code Civ. Pro., § 755 et seq.)</p>

<p>Default — Right to take default — Failure to file affidavit of merits — Inquest</p> <p>Where the defendant serves an unverified answer the plaintiff may take an inquest unless an affidavit of merits is filed and served; but, in view of the rare enforcement of the right and the consequent unfamiliarity of counsel with the procedure upon such an application, defendant was permitted to file and serve his affidavit of merits forthwith, whereupon the application was denied without costs to either party.</p>

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

<p>Former adjudication — Judgment by default — Conclusive evidence though' not pleaded — Evidence — Documentary — Judgment.</p> <p>A prior judgment between the same parties, although it was obtained by default and was not pleaded, is conclusive evidence between them as to the facts necessarily involved; and it is within the discretion of the trial court to reopen the case, after both parties, have rested, and to permit the judgment to be introduced in evidence.</p>

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

<p>Building and construction contracts — Substantial performance — When not established.</p> <p>Where it appears that, under a contract for the carpenter work to be done in the alteration of certain buildings, the contractor had failed to put in a certain number of wardrobes, which omission was equal to ten per cent, of his whole undertaking, had made another omission that equalled fifteen per cent, of the same and had failed to perform in other minor particulars, he has failed to show substantial performance of his undertaking and cannot recover.</p>

<p>Appeal from a judgment of the City Court of the city of New York, entered in favor of the defendant, upon the verdict of a jury directed by the court.</p>

<p>Damages — Contracts for services — Wrongful discharge — Prospective profits.</p> <p>A person employed as salesman and discharged during the period for which he was employed, without cause, may recover prospective profits which it is reasonably certain he would have realized, though the amount is necessarily uncertain;' but evidence as to his average earnings, while in the service of a previous employer and while selling other goods, is irrelevant and improper and ground for the reversal of a judgment based thereon.</p>

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

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

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

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

<p>Negligence — Proximate cause of injury — Not enough that injury might have resulted from wrong.</p> <p>Where, in a negligence action, the personal injuries to plaintiff are comparatively slight and the principal basis of damages is that she suffered nervously as a result of the accident, the burden of proof is upon her to connect, with a reasonable degree of certainty, the alleged result with the cause; and the testimony of her physician, which goes no further than to establish that her nervous condition might have been caused by the injury, is incompetent and a denial of defendant’s, motion to strike out such testimony is error.</p>

Appeal by the defendant from a judgment of the City Court of the city of New York, entered on the verdict of a jury in favor of the plaintiff.

<p>Carriers — Carriage of passengers — Liability for personal injuries to passengers—Contributory negligence of passenger — Standing in aisle.</p> <p>Where, after the conductor of an elevated train which had come to a stop between stations had announced that the train would soon start up again, a passenger had left her seat and, while standing in the aisle, was thrown and injured as, with a sudden jerk, the train started up again, she is not entitled to recover.</p>

<p>Carriers — Carriage of passengers — Actions for personal injuries — Starting with a jerk not enough to show negligence — Admissibility of evidence of defendant — Proof that defendant had no notice of accident.</p> <p>The starting of a street car with a jerk is not sufficient to show negligence or carelessness in its management.</p> <p>In an action for injuries, alleged to have been sustained by plaintiff by being thrown down in consequence of the car’s starting with a jerk after he had boarded it, a refusal to permit the accident clerk of the defendant to testify as to whether it had received notice of the accident was error. Defendant should have been permitted to explain why it presented no defense, as its failure to call witnesses was calculated to prejudice the jury against it.</p>

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

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

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

Appeal by the plaintiff from a judgment of the City Court of the city of New York, dismissing the complaint at the opening of the trial.

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

Appeal by the tenant from a final order made in favor of the landlord in the Municipal Court of the city of Mew York, ninth district, borough of Manhattan.

<p>Assignments — Property or rights assignable — Contracts involving reliance upon personal skill not assignable.</p> <p>A contract for the purchase of goods to be made by a particular manufacturer is presumed to have been made in reliance upon the reputation or known skill of the manufacturer and is not assignable.</p> <p>An agreement, whereby a tenant of a brewing company, in consideration of a lease of certain premises used as a hotel and liquor store, undertakes to buy beer only from the brewing company, is not assignable; and, where the assets of the brewing company, including the lease and agreement, are sold by its trustee in bankruptcy, the purchaser, another brewing company, may not enforce the agreement although it adopts, as descriptive of the beer brewed by it, the name formerly used by the bankrupt.</p>

<p>Evidence — Parol evidence— Subsequent modifications — Subsequent admissions.</p> <p>The statement of the terms of an oral agreement for the purchase of lumber, contained in the written confirmatory letters or memoranda of one of the parties thereto, does not bind the writer; but he may show what the real contract was and, in so doing, may contradict or supplement the writings.</p> <p>Where, in an action for the price of Íumber, it appears that, upon the day after an oral order for the lumber was given by defendant to plaintiff’s intestate and accepted, defendant wrote him a letter referring to their conversation of the day before in which he stated that he understood plaintiff’s intestate would furnish the lumber for $23.50 per thousand feet and gave detailed instructions as to quality, description, time of delivery, etc., and where the defendant contends upon the trial that the price of $23.50 was inserted by inadvertence; that the real agreement was $22.50, and offers to show, by witnesses other than himself, what took place at the conversation between him and plaintiff’s intestate, a ruling of the trial court that, as matter of law, the letter constituted the contract between the parties and excluding the offered testimony, is error.</p>

Appeal by the defendant from a judgment, entered upon the verdict of a jury, in the City Court of the city of New York, in favor of the plaintiffs and dismissing defendant’s counterclaim.

<p>Fraternal and mutual benefit associations — Insurance contract — Bylaws of association as part of contract — Amendments thereto — Reinstatement of member.</p> <p>Where a member of a mutual fraternal benefit association, in his application for membership, agreed that any laws of the association then in force, or that might thereafter be adopted, should form the basis of the contract for beneficial membership; and the certificate or policy issued to the member in pursuance thereof stated that at his death one assessment on the membership not exceeding in amount the sum of $1,000 would be paid as a benefit to the designated beneficiary; and where it appeared that the laws then in force fixed the assessment of the member at one dollar and forty cents per month and provided that he should pay the same rate of assessment thereafter as long as he remained continually in good standing in the order; and where the laws were thereafter amended by increasing the monthly assessments to be paid by the member from one dollar and forty cents to two dollars and seventy-five cents at fifty years of age, and three dollars after the age of fifty-five; although it appeared that the original rate of one dollar and forty cents per month was inadequate and the company, if continuing to do business at that rate, must eventually become embarrassed and probably cease to exist and the increased rate was not excessive; held, that the association could not increase the assessments required to be made by the member and that he was entitled to be restored to membership after having been suspended for failure to pay assessments at the increased rate.</p>

<p>Vendor and purchaser — Vendor’s lien — Necessity of tender of performance before suit.</p> <p>In an action by the vendor’s executors to foreclose an equitable lien for the purchase money, under a contract for the sale of lands and for deficiency judgment against the vendee, the contract having provided that the deed should be delivered “ on payment of the contract price and interest,” held, that the payment, of the purchase price and the delivery of the deed were concurrent conditions; and where, in such an action the defendants demurred to the complaint for its failure to allege an offer to convey, or that the plaintiffs had title to the land and were ready, able and willing to convey, held, that the demurrer should be sustained, with leave to serve an amended complaint upon payment of costs.</p> <p>Semble, that in cases brought to foreclose equitable liens for the purchase money under contracts for the sale of lands, a tender of a deed before action brought is not. necessary.</p>

<p>Negotiable instruments — Indicia or requisites — Payment out of a particular fund — Words held not to import such payment.</p> <p>The words “ 400 C/A.R.L. No. 3362 via A.R.R.B.L. direct ” in a bill of exchange payable on demand, meaning 400 cases of eggs shipped by the drawer to the drawee in car No. 3362, by a certain line, show that the draft is drawn to pay for a consignment made to the drawee but do not indicate that the amount of the draft is to be paid only from the proceeds of the consignment and where the drawees are commission merchants and, under an arrangement with the drawers, agreed to pay drafts for reasonable amounts drawn at the time of shipments of merchandise consigned to them by the drawers and had paid such drafts on previous occasions without waiting to realize funds from sales of the merchandise consigned to them, such a bill is a negotiable instrument; and the drawees having paid the same to a holder in due course cannot recover back the moneys paid upon discovering that the goods were never shipped to them.</p>

<p>Appeal from the decision of the Oswego county clerk, overruling objections made to the filing of certificates of independent nominations.</p>

<p>Wills — Actions to determine validity of will — Limitation of time for bringing—Code of Civil Procedure, § 2653a.</p> <p>A daughter of a testator who is and has been at all times since the admission of her father’s will to probate the wife of a British subject and a permanent non-resident in a foreign country, is not “ absent from the State,” within the meaning of that term as used in section 2653a of the Code of Civil Procedure, which provides that persons within the age of minority, of unsound mind, or imprisoned, or absent from the State may bring an action to test the validity of a will, two years after such disability has been removed; and it appearing that plaintiff at no time since the probate of the will was within the age of minority, of unsound mind, or imprisoned, a demurrer to her complaint in such an action, brought three years after its probate, will be sustained.</p>

Suit to compel specific performance of an alleged written contract to convey two lots in the city of Hew York, borough of Brooklyn: the first described as at the northwest corner of Bristol street and Pitkin avenue, 90 feet on the former and 100 on the latter, and forming a rectangle, and the second described as at the southwest corner of Pitkin avenue and Bristol street, 100 feet on the former and 92 ft. 11 in. on the latter, and forming a rectangle.

<p>Evidence — Parol evidence — Establishing liabilities of third persons — Principal and agent — Rights and liabilities of principal as to third persons — As undisclosed principal — Partnership — Rights of partners inter se — Private profit.</p> <p>The rule allowing parol proof of an undisclosed principal is limited to simple contracts.</p> <p>In an action for dissolution of a partnership formed under written articles for the exclusive purpose of organizing a theatrical company to manage a particular actor and exploit him in. plays that might be written for him, and for an accounting, parol evidence is inadmissible to show that third parties, not mentioned in the written contract but made parties defendant to the action, were the principals of one of the partners.</p> <p>Where a contract theretofore entered into between one of the partners and the actor was assigned to the theatrical company, which assumed all the liabilities and became entitled to all the profits from the common venture, the profits and losses to be equally divided, one of the partners may not retain royalties upon a claim that he was a collaborator in the literary work of one of the plays, although, under the partnership agreement, royalties to authors of plays were properly chargeable as an item of general expense.</p>

<p>Motion to strike out as irrelevant and immaterial, a portion of the petition in condemnation proceedings.</p>

<p>Appear by the defendants from an order of the City Court of the city of Hew York appointing a receiver in supplementary proceedings.</p>

<p>Appeal by the judgment creditor from an order of the City Court of the city of New York denying a motion to punish the judgment debtor for contempt.</p>

<p>Appeal by John C. Hamilton, purchaser, from an order of the City Court of the city of New York, denying a motion to vacate an order, made at the instance of Edward L. Kalbfleisch, Jr., a judgment debtor, setting aside a sale made to appellant by the receiver of said debtor.</p>

Appeal by the defendant from an order of the Municipal Court of the city of New York, twelfth district, borough of Manhattan; setting aside a verdict rendered in favor of the defendant and granting a new trial.

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

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

Appeal by plaintiffs from a judgment for costs entered in the office of the clerk of the Municipal Court of the city of New York, eleventh district, borough of Manhattan, in favor of the defendant and against the plaintiffs.

Appeal by the defendant from a judgment in favor of the plaintiff entered upon the verdict of a jury in the City Court of the city of New York.

<p>Appeal by the defendant from a judgment in favor of the plaintiff entered upon the verdict of a jury in the City Court , of the city of New York;</p>

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

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

<p>Appeal by the defendant from a judgment rendered in favor of the plaintiff in the Oity Court of the city of New York after a trial before the court and a jury.</p>

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

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

<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 in favor of the plaintiff.</p>

<p>Appeal from an order of the City Court of the city of New York denying defendant’s motion to vacate a warrant of attachment against the property of the defendant.</p>

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

<p>Appeal by the plaintiff from an order of the City Court of the city of New York, entered September 8, 1905, granting, in part, the defendant’s motion for a bill of particulars.</p>

<p>Appeal from an order of the City Court of the city of New York denying defendants’ motion to interplead in this action the executors of the estate of Patrick Collins, deceased, as party defendants in the place and stead of the defendants herein named, upon payment into court of the sum claimed»</p>

<p>Appeal from an order of the City Court of the city of New York.</p>

Appeal by the defendant from an order in favor of the plaintiff entered in the Municipal Court of the city of New York, ninth district, borough of Manhattan.

<p>Appeal from an order of the City Court of the city of New York denying the motion of the appellant-bankrupt to cancel a judgment of the said City Court of the city of New York, entered against him by Mary E. Mackintosh, on June 7,1904.</p>

<p>Motion to dismiss an appeal.</p>

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

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

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

<p>Appeal by the defendant from a judgment in favor of the plaintiff, entered in the Oity Court of the city of New York, upon the verdict of a jury.</p>

<p>Appeal by defendant, Moses Cahen, from a judgment in favor of the plaintiff, entered in the City Court of the city of New York.</p>

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

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

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

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

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

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

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

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

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

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

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, also, from an order denying defendant’s motion for a new trial.

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

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

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