Volume 49 — New York Miscellaneous Reports

<p>Parties — Plaintiffs — Who may he joined — Those only who have the right to enforce an obligation or to recover property — Code of Civil Procedure, § 446.</p> <p>In order to join one as a party plaintiff, under the provision of section 446 of the Code of Civil Procedure, it is not enough that he have an interest in the subject of the action, but he must have a right to enforce an obligation or to recover property.</p> <p>The right, if any, to reach property of an estate converted by an executor is, so far as a deceased legatee is.concerned, exclusively in her administratrix; and her heirs-at-law and next of kin are not proper parties plaintiff to an action to recover the property so ■converted.</p> <p>Where the administratrix and the heirs-at-law and next of kin of a deceased legatee, as individuals, bring an action against an executor who has converted the funds of the estate to his own use, to set aside a conveyance of real property alleged to have been made without consideration, and in fraud of creditors and the persons beneficially interested in the estate, and upon a secret and illegal trust for the benefit of the executor and his family, which property it is sought to reach and have sold and the proceeds distributed among those entitled thereto, a demurrer to the complaint, upon the ground of misjoinder of parties plaintiff, in that no cause of action is stated in favor of such of the plaintiffs as sue individually, must be sustained.</p>

<p>Actioh for partition.</p>

<p>Corporations — Officers and agents — Agreement of director to engage in similar" business with others when not prohibited.</p> <p>Equity — Laches.</p> <p>Where a mechanical engineer, who has done work upon a model for an automobile, enters the employment óf a corporation organized to construct automobiles and agrees that the corporation may take out patents on his discoveries and inventions with regard to motor vehicles, and afterward constructs a second improved model, but the corporation does not raise sufficient capital to begin the business for which it is incorporated and the engineer, his salary being in arrears and unpaid, resigns his position; and where the engineer, thereafter, enters the employment of other parties who had been interested in the corporation, one of whom was a director in such corporation, and the other of whom had been negotiating to become its manager but did not take the position; and where the person who contemplated becoming manager, during such negotiations, said that another model would be required and that he would go on and build it and, if an arrangement should be made with him, he would return it to the corporation, upon being paid its cost, but, the negotiations not resulting in his - assuming the management of the company, refused to turn over the new model, subsequently made, on being paid its cost, though some one on behalf of the corporation demanded that he do so; and where the engineer, under his new employment, went on to make a new model in many respects like the former one, using engines of the same type, which, however, involved no new invention or patentable feature, and made new patterns and drawings, all of which passed to a new corporation then formed for the purpose, for which new corporation the engineer continued to work until he had perfected a fourth and satisfactory model, with which the new corporation built up a large business; held:'</p> <p>The original company could not maintain an action against the company subsequently formed to enjoin the latter from selling such automobiles and from using any of the designs of the engineer in question and for an accounting of profits made thereby.</p> <p>The director of the original corporation, who, subsequently, with others, employed the engineer after his resignation to make the successful model, was not, by reason of his directorship in the original corporation, prohibited from engaging in a similar business on his own account, or as one of the directors of the corporation subsequently formed, and violated no duty he owed to the original corporation by so doing.</p> <p>The promise of the person who was negotiating to become the manager of the original corporation, that he would turn over the model he was about making to that corporation, was a mere voluntary promise without consideration and not binding on the corporation subsequently formed of which he was a director; and, moreover, the promise related to the third model and not to the final or fourth model which was the foundation of the business of the new corporation.</p> <p>A delay of more than three years, after the promise was alleged to have been made, is too great to bring an action to compel an accounting for the profits arising from subsequent experiments and the large expenditures necessarily made.</p>

Action to restrain defendants from issuing $40,000 of bonds of the village of Potsdam to. establish a municipal electric lighting plant, for other than municipal purposes, without the certificate of the commission of gas and electricity.

Action by a sheriff to recover on an oral contract of indemnity. Verdict for the plaintiff. Motion to direct a verdict for the defendant reserved until after verdict; also motion on the minutes for a new trial.. The plaintiff was sheriff of Fond du Lac county, state of Wisconsin. The defendants were merchants in the state of New York, and sent to a firm of attorneys in Wisconsin a commercial claim against a manufacturing corporation in the plaintiff’s county for collection.

<p>'Action upon a lease.</p>

<p>Former adjudication—As bar to all matters that might have been litigated — Failure to urge counterclaim.</p> <p>Justices of the peace — Procedure in Justices’ Courts — Set-off and counterclaim — Unliquidated damages.</p> <p>Where, upon the trial of an action against the maker of a promissory note, brought in Justice’s Court, it appears that by agreement the value of services previously rendered by defendant for plaintiff should be applied upon the note in suit and judgment is taken by default, the defendant is not precluded by sections 2947 and 2948 of the Code of Civil Procedure from maintaining an action to recover for such services, the claim therefor being unliquidated.</p>

<p>This proceeding grew out of an action brought against the appellant and one Absalom P. Harper to recover a penalty for killing a wild deer and having the venison therefrom in their possession, July 15, 1905, in the town of Hopkinton, in this county. The action was brought on for trial before a justice of the peace of Parishville, September 4, 1905. The defendant Birdsall was subpoenaed by the People and, after being duly affirmed, was examined by counsel for the People. After answering several questions, he refused to answer whether, on or about the time and at the place alleged, he shot a wild deer; and, later on, he refused to state whether he knew of the killing of a wild deer, either by himself or the defendant Harper, at the time and place alleged. The witness put his refusal to answer on the ground that his answers might tend to convict him of a crime, or incriminate him. His attention was called to section 193 of the Forest, Fish and Game Law as offering him protection; and the court directed the witness to answer-, which he again refused to do. Application was made, September 9, 1905, under section 2975 of the Code of Civil Procedure, to punish the witness for contempt in refusing to testify. A warrant was issued, the witness arraigned, and the matter brought on for determination before the justice, September fifteenth. The witness appeared in person and by counsel and objected to the imposition of a- fine on two grounds; (a) that the witness could not be fined under this section for the reason that, so long as he testified in part, he did not “ refuse to testify ” as contemplated by the statute, and (b) that the witness could not be compelled to answer a question which would tend to incriminate him. The court then imposed a fine of ten dollars and sixty cents, costs, upon the witness; and, from the judgment for that sum entered herein, this appeal has been taken.</p>

Shit to restrain the defendants, who are the Police Commissioner and an Inspector and a Captain of Police of the city of Hew York, from continuous trespasses against house and person.

<p>Suspension of power of alienation — Conditions determining validity of suspension — Suspension for more than two lives.</p> <p>Wills — Interpretation and construction — Construction to sustain validity.</p> <p>Where a testator left his residuary estate to his executors in trust to pay his widow an annuity for life in lieu of dower and, upon the death of his two daughters, gave the estate to their issue; held, on appeal to the Appellate Division, that the trust was void for suspending the power of alienation for the lives of the two daughters and the widow. Upon the new trial granted upon the appeal the trial court, though following the decision of the Appellate Division, expressed the opinion that the testator was content to rely upon the probability that the widow would not outlive both daughters and intended to limit the trust upon the lives of the daughters only, and that such intention should be presumed as it would uphold the testamentary provisions.</p>

Action on a policy of insurance for the sum of $5,000, issued by the defendant on the life of Walker Curry for the benefit of his wife, the plaintiff herein. At the conclusion of the trial the parties waived the jury and submitted to the court all questions of fact and law.

<p>Application for an absolute writ of prohibition.</p>

<p>Action for specific performance of a contract of adoption.</p>

■ Appeal by the defendant from an order of the Municipal Court of the city of ¡New York, second district, borough of Manhattan, opening a default and setting the case down for trial.

Appeal by the defendant from an order of the City Court of the city of Eew York denying a motion for a bill of particulars.

<p>Pleading — Demurrer — Form and contents — Demurrer to counterclaim:</p> <p>Counterclaim — Sufficiency — Arising out of transaction set forth in complaint.</p> <p>Account stated — What constitutes — Giving a note.</p> <p>A demurrer to a counterclaim, upon the ground that it is not of the character specified in section 501 of the Code of Civil Procedure, is sufficiently specific.</p> <p>A counterclaim, open to the objection of duplicity if properly raised, is not demurrable upon the ground that it does not state a cause of action, if one good cause of action can be spelled out, as pleaded.</p> <p>Under subdivision 1 of section 501 of the Code of Civil Procedure, which permits a counterclaim to be interposed if it be a cause of action arising out of “ the contract or transaction ” set forth in the complaint, a counterclaim in an action on contract need not also be a cause of action on contract; but it may be a cause of action sounding in tort arising out of the contract or transaction set forth in the complaint or connected therewith.</p> <p>In an action upon a promissory note given to protect and prevent the sale of certain stock deposited as collateral with plaintiffs who were brokers dealing in wheat on defendant’s account, a claim for the damages arising out of plaintiffs’ alleged misconduct in the course of the transaction may be pleaded as a counterclaim under section 501 of the Code of Civil Procedure.</p> <p>In such action a counterclaim which alleges notice to' defendant of the time and place of the sale of the collateral; that plaintiffs promised defendant that they would not sell at the time and place so fixed, unless and until they had given him previous notice to that effect, and that they did sell at the time without giving him such notice, states a cause of action as the allegation in effect alleges a sale without any notice at all.</p> <p>The giving of a promissory note for the amount shown due by an account is prima facie evidence of an account stated; but the maker may show that it was not given in acknowledgment of the correctness of the account or in settlement thereof.</p>

<p>Appeal by the plaintiff from a judgment entered in 'the City Court of the city of Hew York, overruling a demurrer to a counterclaim.</p>

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

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

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

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

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

<p>Landlord and tenant — Rent — Rights and liabilities — Deposits — Deposit held not to secure rent.</p> <p>Where the receipt, given by defendant to plaintiff for a deposit at the time of making an agreement to lease, did not specify for what purpose it was made, but, upon a fair interpretation, the deposit was to secure the execution of a lease by plaintiff, it is a security for the actual damage, if any, suffered by the defendant by reason of plaintiff’s refusal to take the lease; and, where no such damage is pleaded or shown, plaintiff is entitled to a return of the deposit.</p> <p>Weinberg v. Greenberger, 4.7 Misc. Rep. 117, followed.</p>

<p>Appeal by the plaintiffs from a judgment in their favor, rendered in the Municipal Court of the city of ¡¡Slew York, ninth district, borough of Manhattan.</p>

<p>Landlord and tenant — Assignment and subletting — Distinction: Reentry and recovery of possession by landlord — Summary proceedings — Who may institute.</p> <p>The lessee of premises, who underlets them as long as she shall have the lease on said premises, with right of re-entry in case of the breach of certain conditions apd right to a delivery of possession at the end of the term, has a technical reversion and does not stand in the position of one who has assigned his entire term, and she may, therefore, maintain summary proceedings against her under-tenant.</p>

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

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

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

Appeal by the defendant, from a judgment in favor of the plaintiff, rendered in the City Court of the city of Yew York, and from an order denying a motion for a new trial. .

<p>Negligence — Actions — Evidence — Presumption of negligence from happening of accident.</p> <p>One to whom control of a sidewalk has been given, temporarily, for building operations'must maintain it in a reasonably safe condition, and he cannot escape responsibility by delegating the duty to an independent contractor.</p> <p>Where a person using the highway is injured by the falling of a shed, erected over the sidewalk in the course of defendants’ building operations, the doctrine of res ipsa loquitur applies.</p>

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

<p>Application to a Justice of the Supreme Court for a certificate of reasonable doubt as to the lawfulness of the conviction, under the provisions of section 527 of the Code of Criminal Procedure.</p>

Morrow for a peremptory writ of mandamus requiring the respondents to revise the rating of the relator as to meritorious police service by disregarding all fines imposed during relator’s probationary term of service, and to correct relator’s rating on the eligible list for promotion to roundsman accordingly.

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

<p>Mortgages — Payment, release or satisfaction — Persons entitled to discharge mortgages.</p> <p>Principal and agent — Authority to appoint.</p> <p>Trusts — Execution and administration of trusts — Discretion of trustee— Delegation of powers: Following trust property — Duty of persons dealing with trustee.</p> <p>A certificate of satisfaction of a mortgage, executed pursuant to a power of attorney given to “ receive all sums of money * * * now due or hereafter at any time to become due to me as guardian and trustee of said minors, including all principal and interest of any bonds and mortgages * * * and upon payment of any mortgage * * * to execute and acknowledge sufficient certificates to discharge the ■ same of record ”, operates as a valid discharge though the power of attorney attempts to confer certain other powers and duties udiich the guardian and trustee could not legally delegate; and, where the amount due upon the mortgage is paid to the person authorized to receive it, the mortgagor is not bound to see to the application made by the guardian of the sum so paid. (Real Property Law, § 88.)</p>

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

<p>Action for partition.</p>

<p>Easements — Extent of right: Obstruction and enforcement of right.</p> <p>Where the deeds of certain lots to plaintiff and defendant, respectively, from a common owner contain covenants that the premises shall not be used or occupied for a “ bar-room, lager beer saloon, restaurant, ale house, liquor saloon, store, warehouse, or any erections known as nuisances, or any noxious or dangerous use, purpose, trade, business or establishment, or for any business purpose whatsoever ”, the use of a building on defendant’s land solely for a restaurant and drinking saloon is a violation of such covenant and should be enjoined, unless plaintiff has lost the benefit of the covenant and the right to enforce the same, there being no such change in the general character of the neighborhood, since defendant acquired her property, as would make such enforcement inequitable.</p> <p>Infrequent violations of said covenant, not generally known or acquiesced in by plaintiff or residents within the restricted territory, will not prevent an enforcement thereof.</p> <p>One entitled to the benefit of ,a restrictive covenant in a deed may take no notice of violations not especially offensive to him, without losing his right to enforce the covenant in case of especially offensive violations.</p> <p>The plaintiff is entitled to judgment that the interest of a mortgagee and party defendant is subject to said covenant and the right of plaintiff to enforce the same.</p>

Appeal by the plaintiff from an order of the City Court ■of the city of Hew York, denying plaintiff’s motion for leave to discontinue.

<p>New trial — Proceedings to procure — Motion in City Court of the city of New York must be made at Special Term.</p> <p>The entry of an order denying a motion for a new trial in an action tried in the City Court of the city of New York, upon the supposition of defendants’ present attorneys that such a motion had been made, cannot be considered as the’ making of a motion.</p> <p>A motion for a new trial of an action in the City Court of the city of New York must be made at a Special Term thereof and not before the trial justice.</p>

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

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

<p>Principal and agent — The relation between the parties — Creation and existence — Acts and declarations of agent.</p> <p>Evidence — Presumptions — Absence of witness.</p> <p>Where in an action to recover on a contract for relaying a piece of sidewalk in front of defendant’s property the position and duties of the alleged agent of defendant, with whom the contract was made, were of such a nature as to preclude any implication of authority,- and plaintiff is unsuccessful in its efforts to show that defendant’s treasurer authorized the making of the contract, m* permitted the work to go on knowing that plaintiff was relying on the alleged agent’s assumed authority in the premises, plaintiff fails to make out a prima fame case.</p> <p>Although there was nothing to show that the alleged agent, who, at the time of the trial, was not in defendant’s employ nor under its control or direction, could not be produced, defendant’s failure to call him as a witness created no presumption against it; nor was it called upon to enter upon its defense until the plaintiff had made out a prima facie case.</p>

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

<p>Foreign corporations — Duties and liabilities — Refusal to permit inspection of stock book — Sufficiency of proof.</p> <p>Constitutional law — Privileges and immunities of citizens of several States.</p> <p>The plaintiff, iin an action to recover the penalty provided (Stock Corporation Law, § 53) for refusal of a foreign corporation to permit an inspection of its stock book, makes out a prima facie case when he shows that he went, during business hours, to the office of the company where its stock hook is required by law to be kept and made a demand upon the person apparently in charge that an inspection be permitted; he is not required to prove, in the first instance, that such person bore any particular relation to the company.</p> <p>That a domestic corporation for refusal to exhibit its stock book is subject, under section 29 of the Stock Corporation Law, to the payment of fifty dollars and all damages resulting to the stockholder therefrom, while, under section 53 of said statute, a foreign corporation, for the same refusal, is subject to the payment of two hundred and fifty dollars, nothing being said about any other damages, does not render the latter provision unconstitutional as imposing a more severe penalty for the same offense. Semble in the latter case the damages are liquidated by the statute while in the former case they are left unliquidated.</p>

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

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

<p>Landlord and tenant — Rights, duties and liabilities in regard to the premises: Rent — Actions — Pleading — Answer.</p> <p>Modification and merger of contracts — Independent agreements.</p> <p>An answer, in an action for rent upon a written lease under seal complete upon its face, which both in defense and counterclaim ' alleges that, on the day the lease was executed, certain agreements were en tered into 'between the parties, and, after giving a condensation of the terms of the lease, alleges, in thé same sentence and as a part of the same agreements, an undertaking on the part of the plaintiff among other things to supply and renew various articles of furniture in the house and stable does not justify a contention that defendant has pleaded an independent collateral agreement to do the things enumerated in the answer but not mentioned in the lease, but its plain construction is that the agreement to lease and the agreement to do those things were all parts of one complete agreement.</p> <p>Where, by such instrument, the premises are expressly leased “with the furniture now contained in the house;” and, in another clause, the tenant agrees to cut the grass on the lawn twice a week and to keep the hedges trimmed, alleged promises of the landlord to furnish the house and cut the grass and trim the hedges in so far as made at the execution of the lease, being inconsistent therewith, may not be considered and, if made thereafter, are without consideration and not enforcible.</p> <p>A valid, independent agreement to do the things alleged by the tenant would, if made, have been no ground for repudiating the lease, but, at most, would have afforded a basis for damages, of which there was no proof.</p>

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

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

<p>• Appeal by the plaintiff from a judgment 'in favor of the defendant, rendered in the Municipal Court of the city of Mew York, seventh 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, and also from an order denying defendant’s motion for a new trial.

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

<p>Street railways — Operation — Collision with vehicles — Contributory negligence — When freedom from not established.</p> <p>Where the principal witness for the plaintiff, who was seated by the side of the driver of a van, testifies that, as they were proceeding south, he looked back and saw a south-bound car about two hundred feet away approaching rapidly; that, after continuing in the sa,me direction for a distance which he cannot state, they turned east, and, when the van was three-quarters of its length across the track, it was struck by the car; and, where the driver is not produced nor any other witness who can testify with more certainty as to how far he proceeded, after being told of the approaching car, before turning to go upon the tracks, the testimony is insufficient to show that the driver was free from contributory negligence.</p>

<p>Carriers — Carriage of passengers — Liability for personal injuries — Questions for jury — Overcrowding of cars—Instructions.</p> <p>In an action by a passenger to recover damages for personal injuries against a street railway company, the refusal of the court: to charge, as requested by the defendant, that it was not negligent as matter of law to permit over-crowding, but was a circumstance to be submitted to and considered by the jury, is error for which a judgment in favor of the plaintiff will be reversed where the verdict is excessive.</p>

<p>negotiable instruments — Bona fide holders — Parting with value not conclusive as to bona fides.</p> <p>In an action on a check given without consideration, evidence that the holder paid value for it is not conclusive as to the bona fides of the transaction; and, where there are many suspicious circumstances and the original payee, though easily accessible as a witness, was not called, the bona fides is unsustained, and a judgment for the plaintiff will be reversed.</p>

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

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

Appeal hy the defendants from a judgment entered in favor of the plaintiff in the City Court of the city of Hew York, by direction of the Court, after a trial without a jury.

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

Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, fifth district, borough of Manhattan, dismissing the complaint as to the defendants Dochtermann.

<p>Costs — Amount—Term fees: Disbursements — Fees of witnesses — Service of papers.</p> <p>Where a case not noticed by plaintiff for trial goes over the term, by reason of due service of an amended complaint, the term fee and witnesses’ fees of the successful defendant are improperly taxed by the clerk.</p> <p>Witnesses’ fees for the attendance at the trial of co-defendants who were not subpoenaed should not be allowed where it does not appear that they attended as witnesses and not as parties.</p> <p>In the absence of proof showing any peculiar necessity for personal service of an answer, an amended answer and an .order upon the plaintiff’s attorney, disbursements for such services should not he allowed.</p>

<p>Appeal from a judgment of a justice’s court rendered in favor of defendant.</p>

<p>Appeal from a judgment of a Justice’s Court, rendered in favor of plaintiff.</p>

<p>Municipal corporations — Defective streets, etc.—i Particular defects and obstructions — Hole in sidewalk.</p> <p>Where, in an action against a municipality to recover damages for injuries sustained through the negligence of defendant in failing to keep a sidewalk in reasonably safe condition, it appears that the plaintiff, in the evening, caught the tip of her shoe under a flagstone so firmly that it required some force to remove it, which caused her to fall; that one flagstone was raised above the other from an inch and three-quarters to two inches and that this condition had existed for more than a year before the accident, a verdict for the plaintiff will be sustained. Such a hole is not such a minor defect that reasonable and prudent men will not differ as to whether an accident could have been reasonably anticipated from this condition.</p>

<p>Principal and surety — Rights and remedies of surety against creditor — Compelling assignment of securities.</p> <p>Injunction—-Preliminary injunction—Grounds and matters considered — Right depending on extrinsic facts — Acts tending to render judgment ineffectual—Transfer of commercial paper pending action, to cancel same.</p> <p>Where defendants held a note for $31,000 and, as collateral thereto, another note made by the same corporation and indorsed by plaintiffs for a larger amount with bonds as collateral thereto, and the plaintiffs offered to pay the $31,000 note to the holder thereof upon the surrender of the collateral, but defendants evaded the offer and did not comply therewith; held that, in an action-brought by the indorser of the collateral note against defendants, claiming that plaintiffs were entitled to have the collateral note canceled, upon a state of facts as to which there is dispute, a temporary injunction, restraining defendants from disposing of the collateral note to any other person than the plaintiffs, should be granted.</p>

<p>Motion by certain defendants to set aside order obtained by plaintiff for their arrest in the present action, which plaintiff has brought against them and other defendants for malicious prosecution.</p>

<p>Motion by defendants requiring plaintiff to make its complaint more definite and certain and to strike out certain parts of its complaint and to extend the time of defendants to answer.</p>

Motioh by one defendant for leave to serve an amended answer and motion by another defendant for leave to intervene in said motion and to compel acceptance of service of said answer.

<p>Municipal corporations — Police department—Promotion — Rules relating to examinations for promotion in the city of Mew York.</p> <p>The words “ position or grade ”, as used in the rules of the municipal civil service commission of the city of Mew York, refer to a position or grade as constituted by law; and a policeman is not entitled in his rating in promotion examinations to credit for seniority of service as roundsman, while that was a service to which patrolmen were detailed, but only since the Greater Mew York Charter took effect by the terms of which it was first recognized as a position or grade.</p>

<p>Conspiracy — Criminal liability—Particular conspiracy — To exclude . one from places of amusement.</p> <p>An agreement among a number of theatrical managers, by which they combine to exclude a certain individual from their respective establishments, constitutes an unlawful conspiracy; and proof thereof and of overt acts to that end is sufficient to authorize the commitment by a magistrate of one of the parties to such' agreement charged with the offense; ■</p>

<p>Abutting owners — Remedies of — Actions against railroad companies — Damages — Interest on damages.</p> <p>In an action by a property owner to restrain the operation of an elevated railway in front of his premises and for damages, interest upon the damages is not recoverable on each annual rental damage award as a matter of right, but is in the discretion of the ’court; and the general practice is to award interest in such cases only from the date of the trial.</p>

<p>Pleading — Answer—Time to answer — Order extending time to answer — Compliance with rules.</p> <p>A provision extending defendant’s time to answer or demur, contained in an order which also requires the plaintiff to file security for costs, founded on papers that do not comply with Rule 24 of the General Rules of Practice, will be stricken out on motion.</p>

<p>Habeas corpus proceedings.</p>

<p>Motion to compel the plaintiff to file security for costs.</p>

<p>Banking associations and corporations — Liability of stockholders fox corporate debts — Conditions precedent to action against stockholders.</p> <p>Corporations — Liability of stockholders to creditors — Judgment and. execution against corporation as condition precedent.</p> <p>Constitutional law—Provisions relating to corporations — Liability of stockholders of banks.</p> <p>Banking Law, § 162.</p> <p>Stock Corporation Law, § 55.</p> <p>General Corporation Law, § 33.</p> <p>In the simultaneous enactment of the General Corporation Law, the Stock Corporation Law and the Banking Law the intention to provide one consistent scheme of legislation relating to corporations is manifest.</p> <p>It was not the legislative intention by section 162 of the Banking Law to impose a primary and absolute liability upon the stockholders of trust companies, or to make them the single exception to the provisions of section 55 of the Stock Corporation Law and to the rule that the liability of stockholders is always secondary and contingent.</p> <p>The provision of section 162 of the Banking Law, making stockholders individually responsible for corporate debts, is subject to the provision of,section 55 of the Stock Corporation Law, prohibiting an action against a stockholder for a corporate debt until the recovery of judgment therefor and the return of an execution unsatisfied and limiting the recovery to the amount due upon the execution, although the latter section is not expressly referred to therein. These sections do not conflict with each other and both are applicable to the stockholders of trust companies formed under or subject to the Banking or Insurance Law; and section 33 of the General Corporation Law requires that they shall be so construed.</p> <p>A complaint, in an action to establish a claim as a creditor against a trust company and to enforce the statutory liability of its stockholders for the debts of the corporation, which fails to allege the recovery of a judgment against the trust company and the return of an execution unsatisfied thereon, is demurrable upon the ground that it does not state a cause of action.</p> <p>The plaintiff in such action must justify his omission to plead the recovery of a judgment against the corporation and execution returned unsatisfied, by pleading facts which bring him within the exceptions that- the courts have interpolated into the statute, and allegations that the corporation is insolvent and that plaintiff did commence an action against the trust company looking to the recovery of a judgment on his claim but that, by reason of successive demurrers interposed to his original and amended complaint and the congested condition of the trial calendars, he has been unable to obtain such judgment, although he has pressed his case with the utmost speed, are insufficient as it is only where by operation of law the recovery of a judgment is impossible that compliance with the statute may be dispensed with.</p> <p>Where the trust company has not been dissolved and no action for sequestration has been instituted, nor injunction issued restraining creditors, nor the plaintiff’s cause of action prohibited by statute, it is possible for him to recover a judgment against the corporation and issue an execution thereon.</p> <p>The effect of the constitutional provision (Const, art. 8, § 7) that: “The stockholders of every corporation and joint stock association for banking purposes shall be individually responsible to the amount of their respective shares of stock in any such corporation or association for all its debts and liabilities of every kind ”, adopted two years after the enactment of the corporation laws, was to preserve and perpetuate the liability of stockholders against possible subsequent legislation; but prior legislation, so far at least as it contemplates the performance of conditions precedent, survives because not in conflict with said constitutional provision and the ultimate liability of the stockholders is unaffected; and the mere fact that section 55 of the Stock Corporation Law prevents the present enjoyment of the protection accorded to the creditor by the Constitution, does not make it conflict therewith.</p> <p>Section 55 of the Corporation Law, being composed of separable, ■distinct parts, the provision thereof which seeks to limit stockholders’ liability for the debts of the corporation payable “within two years ” etc., being inapplicable to the present case and of doubtful constitutionality, may be eliminated without affecting the valid provisions thereof.</p> <p>That the plaintiff in his present complaint incorporated his complaint in a prior action against the trust company as sole defendant, both stating the same cause of action, renders the present complaint demurrable upon the ground of the pendency of another action between the same parties.</p>

<p>Insurance companies — Organization and conduct of business — Mutual companies — Right of policy holders and stockholders to maintain action against directors for negligence and misapplication of funds.</p> <p>Joinder of causes of action — Whether complaint states more than one cause of action — Actions against directors of corporations.</p> <p>Where, in an action against a stock corporation, engaged in making insurance upon lives of individuals upon the mutual plan, and against all the directors thereof, plaintiff, a stockholder and policy holder therein, seeks, upon an accounting, to recover, in the right of the corporation and in its behalf, certain sums of money owing to it by its directors, claiming the same right possessed by stockholders in ordinary business corporations to maintain suit where the corporation has itself improperly failed to bring the same, the plaintiff must establish (1), a cause of action in favor of the corporation; (2), facts entitling her to sue in its stead.</p> <p>Where the complaint in such action alleges the commission of actual wrongs by some of the defendant directors, with resulting-damage to the corporation in such unmistakable terms that, conceding the facts alleged to be true, there is no doubt of the-liability of such directors to the corporation, and the complaint further alleges in effect that all the directors have been inattentive- and inactive and have, therefore, failed to prevent and so permitted the things to be which have caused injury, it sets forth, with sufficient definiteness a liability on the part of all the directors, to the corporation for neglect of duty and damage.</p> <p>The fact that under the complaint some of the defendants are-liable for faults of commission and some because of a duty omitted to be performed, furnishes no basis for a claim that causes of action have been improperly joined.</p> <p>While a mere policy holder cannot maintain an action for are accounting against an insurance company the provisions of section 56 of the Insurance Law which prohibit, first, a decree or judgment for an accminting; second, a decree or order restraining or enjoining the prosecution of an insurance company’s business and third, a decree or order interfering with the prosecution of such-business, in no wise prohibits the bringing of the present action, to compel the defendant directors to pay into the treasury of the-corporation the amount of waste of its funds caused by them, and the complaint herein is not demurrable upon the ground that the-plaintiff has not legal capacity to sue.</p> <p>Plaintiff either as a policy holder or a stockholder is, in effect, a eestui que trust and, as such, has a stockholder’s right to compel' the corporation to collect the assets due it from delinquent creditors and they having, presently, its affairs under their control she is entitled to bring her action in the right of the corporation without a previous demand upon it to bring the action.</p> <p>The objection that because plaintiff alleges that she is a policyholder and also a shareholder causes of action are improperly united is not tenable; as a policy holder she may be only a creditor but as a creditor she states no cause for relief and asks none, her action being simply as stockholder.</p>

<p>Courts — Powers — County Courts — To grant reargument of appeal. Code of Civil Procedure, § 3342.</p> <p>Under section 3342 of the Code of Civil Procedure, a County Court may grant a reargument of an appeal from a judgment rendered by a justice of the peace.</p> <p>Where, from the opinion of a county judge affirming a judgment rendered by a justice of the peace, it appears that all matters involved in the appeal were considered and it does not appear that any question was overlooked by the court or that its decision was in conflict with the statutes, or with a controlling decision to which its attention was not drawn through the neglect or inadvertence of counsel, a motion for reargument, made before the successor in office of the county judge who heard the appeal, will be denied.</p>

<p>Action by the receiver of the Federal Bank of Few York against the defendant, who is the maker of two promissory notes, to recover upon said two promissory notes discounted by said bank allegedly in due course.</p>

Motion by the plaintiff to compel defendant’s attorneys to accept notice of appeal from final judgment dismissing the complaint for insufficiency.

<p>Attachment—Property subject to attachment — Funds held as administrator cannot be attached.</p> <p>Executors and administrators — Nature of interest or right of representative— Administrator also distributee.</p> <p>Under an attachment against the property of the defendant, funds on deposit with a trust company, to the credit of his wife’s estate of which he is administrator, cannot be attached, though the funds might eventually go wholly to him.</p> <p>. Until the statutory publication for creditors there is no presumption that there are not creditors who would have rights in the fund; and though upon the death of his wife legal title to the fund vested in him, subject to the rights of creditors, upon his appointment as administrator his individual title was ousted.</p>

<p>Motion for an order directing respondent, a city magistrate, to show cause why he should not be compelled to hear and determine the evidence in the case of Gordon v. Genud.</p>

<p>Motion by plaintiff, as receiver of a judgment debtor, to restrain defendant Rabinbauer from collecting or issuing execution upon certain judgments recovered by him against defendant Schierloh during the pendency of this action.</p>

<p>Motion for leave to serve an amended answer.</p>

<p>Municipal corporations—Police department — Promotion — Rating'and credits on examination — What commendations and honorable mentions considered.</p> <p>Greater New York Charter, § 288.</p> <p>The municipal civil service commission of New York city in acting under section 288 of the Greater New York Charter had the power to pass- a resolution providing that, in fixing the relative ratings of candidates for promotion in the police department, only such commendations and honorable mentions should be considered as should have been awarded as a result of individual acts of personal bravery; and the commission may not be compelled by mandamus to revise and re-rate the marking of a policeman in a competitive examination for promotion so as to include credit for a certain act of meritorious police service not involving personal bravery, where the resolution was adopted before the examination of the petitioner but subsequently to the promulgation of rule 15 of the said commission which provided for considering comparative conduct and efficiency in previous service and for keeping efficiency records to that end.</p>

Motion to enjoin respondent from trafficking in liquors under her liquor tax certificate until the determination of this proceeding to revoke said certificate.

<p>Reabgument of appeal from final order in summary proceedings, made in favor of the tenant by the justice of the Municipal Court of the city of New York, fourth district, borough of Manhattan.</p>

<p>Pleading — Amendments by leave of court — Before trial—Change of nature of defendant’s liability.</p> <p>Process — Amendments — To state capacity in which defendant is sued.</p> <p>The City Court of the city of New York has power by amendment to turn an action against defendants as trustees to one against them as individuals, but both the summons and complaint should be amended; an amendment to the complaint alone is ineffectual.</p>

Appeal by the defendant from an order of the City Court of the city of New York, made at Special Term, denying a motion to vacate an attachment for insufficiency of the papers upon which it was granted.

Appeal by the defendants from two orders of the City Court of the city of New York: an order granting plaintiff’s motion to amend the complaint and an order denying defendants costs on said motion.

<p>Discovery and inspection — Inspection of books and papers — Eight to remedy — Laches.</p> <p>Where a case, sent back for a new trial, is upon the call of the calendar marked “ ready ”, a motion thereafter made for leave to inspect the plaintiff’s books should be denied for laches.</p> <p>Where, upon such motion, defendant not only fails to excuse his laches and to disclose any necessity for such inspection but also fails to show any facts leading to the inference that the books contain any entries that would aid defendants, an order granting an inspection should be reversed with costs and the motion denied with costs.</p>

Appeal by the plaintiff from an order of the City Court of the city of Hew York, made at the Trial Term, setting aside a verdict directed by the Court.

<p>Municipal Courts — Review — Judgment entered without service of summons.</p> <p>Municipal Court Act of Mew York City, § 311.</p> <p>There is no authority given in the Municipal Court Act to vacate a judgment for non-service of the summons where the defendants have not appeared.</p> <p>In such case, the defendants’ remedy is, under section 311 of the Municipal Court Act, an appeal within twenty days after personal service of written notice of the entry of the judgment.</p>

<p>Evidence — Admissions — By representatives — By executors and administrators— Fact or time of death of intestate.</p> <p>Neither the fact of the death of an intestate nor the time thereof may be proved by his administrator’s declaration out of court.</p> <p>Where, in an action by an administrator to recover a deposit in bank made by his intestate, the only evidence other than testimony that letters testamentary were granted to plaintiff, is a pass-book of the account of deceased with defendant, produced by it under a subpoena duces tecum, from which it appears that deceased had deposited the amount sued for and had afterwards withdrawn it, and the date of his death is not shown, the complaint is properly dismissed.</p> <p>An admission in the answer that deceased during his lifetime had deposited the amount sued for with defendant cannot be construed as an admission that at the time of his death such sum was still on deposit, where the answer expressly denies that any sum was so held by defendant at the time of the death of the deceased, and the proof shows that said sum had been withdrawn.</p>

<p>Appeal from part of an order of the City Court of the city of ¡New York at Trial Term ordering a new trial without costs and from an order denying resettlement of the same.</p>

Appeal by the defendant from an order of the City Court of the city of Hew York, denying a motion for a new trial made on the Judge’s minutes.

<p>Appeal by judgment creditors from orders made at Special Term of the City Court of the city of Hew York.</p>

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

<p>(Pleading — Demurrer to answer — When demurrer to answer lies — Six-years limitation to action on sealed instrument.</p> <p>An action upon a sealed instrument may be brought within twenty years; and an answer which pleads the Statute of Limitations based on shorter periods is demurrable.</p> <p>If the plaintiff does not prove a sealed instrument he may have leave to amend and then it will be time enough to set up a defense based on shorter periods of limitation than twenty years.</p> <p>Where a defendant is sued both individually and as executor the complaint is good as against a demurrer that the court has no jurisdiction of an action against an executor.</p>

<p>Contracts—Performance — Rights accruing on partial performance-— Separable contracts.</p> <p>Municipal Courts — Jurisdiction — Municipal Court of the city of New York — Defense of fraud in inducing contract.</p> <p>An agreement by a vendee to pay for a policy of title insurance already ordered by the vendor, though incorporated in the contract of sale, is a separate and independent agreement.</p> <p>The vendee, in an action brought in the Municipal Court of the city of New York upon his check given to plaintiff to pay for such insurance, is entitled to show that plaintiff knowingly misstated the amount of the title company’s charge and that, in consequence thereof and relying thereon, defendant promised to pay the amouni: for which the check was given; and no question of the assumption of equitable jurisdiction by the court is involved in receiving the proof.</p> <p>Giegerich, J., dissents.</p>

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

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

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

<p>Building and construction contracts — Submission of questions of performance to third person — Architect's certificate as condition precedent; Unreasonable withholding of certificate: Extra work — Right to additional compensation — Necessity for written authority.</p> <p>In an action upon a building contract which makes an architect’s certificate a condition precedent to payment, a waiver of the certificate, or an unreasonable .refusal of the architect to furnish one, must be shown.</p> <p>A provision in a building contract that orders for extra work shall be in writing may be waived.</p>

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

Appeal by the defendant from a judgment of the City Court of the city of New York entered on a verdict directed by the court and also from an order denying defendant’s motion for a new trial.

<p>Appeal by the plaintiff from a judgment of the Municipal Court of the city of Hew York, sixth district, borough of Manhattan, dismissing the complaint.</p>

<p>Liens — Nature, establishment and termination — Lien on one article for work on another.</p> <p>When several coats are delivered to coat makers to be made up and some are finished and delivered, the makers cannot claim a lien upon those retained for the price to be paid for making all, unless the contract covered all and was not separate as to each; and, in an action against them to recover the coats, the burden h upon them to show that the contract was entire.</p>

Appeals by defendants from judgments of the Hunicipal Court of the city of ¡New York, second district, borough of The Bronx, rendered in favor of the plaintiff.

<p>Principal and surety — Eights and remedies of surety against principal —Enforcement of judgment appealed from by surety on appeal bond: Surety’s right does not extend to indorser of note not sued.</p> <p>Subrogation — Eights of sureties — Sureties on undertaking.</p> <p>The surety upon an undertaking on appeal, given by a defendant upon an appeal from a judgment against him, who is compelled t(> pay the judgment, is subrogated to all the rights of the judgment creditor under the judgment appealed from, but not to the right of the judgment creditor to enforce the liability of an indorser upon the note on which the judgment appealed from was recovered, wli® was not sued and against whom no judgment was entered.</p>

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

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

<p>Carriers — Carriage of passengers — Liability for personal injuries to passengers — Duties with regard to taking on passengers — Duty to passenger while in transit to seat.</p> <p>Where, in an action to recover for personal'injuries sustained by a passenger in attempting to board an open, car, all the conditions appear to have been such as to have justified plaintiff in assuming that she might safely board the car, and where it appears that, before she was seated, the conductor in charge, without warning, lowered the board rail so that it injured her hand which she had placed on one of the upright stanchions while in the act of taking her seat, the defendant’s alleged negligence and the plaintiff’s freedom from contributory negligence are properly questions of fact for. the court sitting as a jury to pass upon; and, defendant having submitted no proof as to the details of the accident, the judgment for plaintiff will not be disturbed.</p>

Appeal by the defendant from a judgment of the City Court of the city of Hew York in favor of the plaintiff, after a trial had at Trial Term before the court and a jury.

<p>Damages — Evidence as to damages — Evidence in action for personal injuries: Instructions — As to damages.</p> <p>Where, in an action for personal injuries received by plaintiff while attempting to board a railway car, the only evidence as to his earnings at the time of the accident is his own testimony, which on his cross-examination tended to show that he was not earning so great a sum as he testified to on his direct examination, the question should be determined by the jury; and it is error to charge that, if they found for plaintiff, they must award him for “ loss of time ” the amount stated by him on his direct examination.</p> <p>The opinion of a physician as to the reasonable value of his services rendered to plaintiff is merely advisory and its weight is for the determination of the jury; and a charge which, in effect, instructs them that they must be governed thereby is clearly erroneous.</p>

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

<p>Evidence — Documentary evidence — Stenographer’s notes.</p> <p>While it is always competent to contradict a witness by legal proof that he testified differently upon a former trial, a transeripi of the ■stenographer's minutes unverified by him is no evidence at all and is inadmissible for that purpose.</p> <p>A witness, against whom it is desired to use the unverified steno graphic minutes of his testimony on a former trial, is entitled to have their correctness properly proven; and this involves the rigb' to cross-examine whoever is produced to verify them.</p>

<p>Street railways — Operation — Actions — Sufficiency of evidence.</p> <p>The testimony of plaintiff that he looked in the direction of an approaching street car, which collided with his truck, and did not see it is incredible as matter of law, and a judgment in his favor in an action for injuries to the truck should be reversed and a new trial granted.</p>

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

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

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

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

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

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

Appeal by the plaintiff from a judgment of the Municipal Court of the city of Hew York, first district, borough of Manhattan, dismissing the complaint but without prejudice to a new action.

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

<p>Appeal by the plaintiffs from a judgment in favor of th© defendant rendered in the Municipal Court of the city o£ Mew York, sixth district, borough of Manhattan.</p>

<p>Principal and agent — Actions by third persons — Evidence — Declarations of alleged agent".</p> <p>"Proof of the declaration of an engineer that he ordered coal on behalf of the defendant and another is not admissible to establish the fact that he was their agent and, it appearing that he was not their agent, the proof of such declaration should be stricken out.</p>

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

Appeal by the defendant from an interlocutory judgment: of the City Court of the city of ¡New York, made at Special Term, overruling his demurrer to the amended complaint.

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

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

<p>Eminent domain — Power in general — What constitutes public use — Furnishing electricity to municipality.</p> <p>Furnishing light to a municipality is a public service, and an electric light company in any town or village in this State having contracts with towns or incorporated villages for the lighting of streets though a private corporation may acquire by condemnation lands to enable it to increase its power in order to furnish more electricity under such contracts.</p>

<p>Application on behalf of Ambrose E. Smith, under section 2471a of the Code of Civil Procedure, to obtain possession of the books and papers pertaining to the office of supervisor of town of Camillus.</p>

<p>Trusts — Constructive trust — Transactions between persons in confidential or fiduciary relations: The trustee, appointment, etc.— Trustees de son tort — Execution and administration of trust — Investments— Losses: Following trust property — Right to pursue.</p> <p>Limitation of actions — Accrual of cause of action — Recovery of legacy or distributive share — Accounting by fiduciary: Period of limitation— Actions on contract — Limitation of six years though trust implied; Suits in equity.</p> <p>Evidence—Presumptions — Mature of transaction.</p> <p>Where a testamentary trustee received securities constituting tho . trust estate some of which named the beneficiary' as the payee upon their face or in the endorsements upon the back of them, the remainder of the securities being payable either to bearer or to the trustee, and the securities thus received were deposited in a safety deposit box rented in the names of both the trustee and the beneficiary, and, after the deaths of both of them there were found in the box some of the securities made out to bearer or to the trustee and others of those that had been made out or endorsed in the name of the beneficiary, it was held that the failure of the trustee to convert some of the securities which were not lawful investments for trust funds into lawful investments, though rendering his estate liable, could not impose a liability upon the estate of the beneficiary, who had never had the custody of control of such securities though standing in her name and could not be held as a trustee de son tort.</p> <p>And where there were found in such box other securities standing in the name of the beneficiary which had been received upon the surrender or transfer of certain of the original certificates that had stood in the name of the beneficiary and which after their receipt had been endorsed by the beneficiary and surrendered, it is to be presumed that the trustee continued in possession of the new securities and that they constituted part of the trust estate.</p> <p>And where it appears that other securities which had stood in the name of the beneficiary had been endorsed by her and sold and, in many instances, checks to her order had been given in payment, it is to be presumed that all the checks so given were payable to her individually; and where it does not appear what disposition she made of the moneys but it appears that the greater part of the moneys was received more than ten years, and all but about $6,600 was received by her more than six years, prior to the commencement of this action, brought by the remaindermen against the personal representatives of the trustee and the beneficiary to compel an accounting as to the acts of the trustee and to enforce a liability against the estate of the beneficiary as a trustee, it was held that the beneficiary knowing the terms of the trust, having been a party to a decree of the Ohio courts adjudicating as to the creation of such a trust, and being the wife of the trustee is to be considered as having retained the fund for the purposes of the trust and as, in effect, the trustee of an actual, existing trust and that the Statute of Limitations did not begin to run until her death, upon which event the remaindermen became entitled to the possession of the estate.</p> <p>And it appearing that certain of the shares owned by the testator at the time of his death were shares of foreign corporations organized under the laws of a foreign State by whose laws it was provided they were to be deemed real estate but might be transferred from one person to another in the same way as personal property, and that, by the laws of said State, three witnesses were required to a will, whereas, to the will of testator, there were but two witnesses; and it further appearing that the executors took out letters of administration in the foreign State and instituted proceedings there by which the foreign shares were distributed according to the laws of that State among the next of kin of the testator and that the trustee was a party to such proceedings, it was held that they were binding upon all the beneficiaries of the trust upon the question of the ownership and disposition of such corporate shares; and the shares that went to the life beneficiary of the trust upon such a division could not be held subject to the trust and, she having received them in hostility to the trust, any claim for their recovery would have been long since barred by the Statute of Limitations.</p> <p>Other certificates, found in the box, representing shares not received from the testator’s estate, standing in the name of the beneficiary, not shown to have been bought with trust funds, are not to be presumed to be part of the trust estate; nor will such a presumption arise from the fact that such securities were bought with checks upon a joint bank account, standing in the names of the trustee and beneficiary, opened by the trustee, into which were deposited by the trustee the proceeds of sales of certain trust securities, no deposits being made by the beneficiary nor checks drawn by her upon such account.</p> <p>Other shares found in the box, purchased with the personal funds of the trustee, endorsed by him with words of sale and transfer for value to the beneficiary, in the absence of proof of actual delivery to the beneficiary will not be presumed to have been delivered to her but to have been placed in the box by the trustee; and he having declared in writing that the same belonged to the trust estate, before his death, they will be deemed a part thereof and distributed accordingly.</p> <p>It appearing that moneys were paid by the trustee from the joint bank account to improve the real estate of the beneficiary, held that she was not chargeable as a trustee for such moneys and any claim against her therefor was barred by the Statute of Limitations.</p> <p>It appearing that the beneficiary at one time gave her note to the trustee for an amount less than that for which her estate has been held liable to the trust, there being no present consideration for the note, it is to be presumed that the note was given for some of such liabilities; and a recovery upon the note in addition to the liabilities mentioned cannot be permitted.</p>

<p>Motion by defendant, against whom final judgment has been entered in an action for divorce, asking to be relieved from the further payment of alimony.</p>

<p>Motion for an order vacating an injunction pendente lite . heretofore granted in this action. The opinion states the case.</p>

<p>Attachment — Affidavit to obtain — Service of copy of affidavits.</p> <p>That copies of the complaint and affidavit served upon the defendant with a warrant of attachment did not contain the name of the officer before whom they were verified is not ground for vacating the attachment, as such defects are merely irregularities and not fatal.</p> <p>No statute or rule requires the service of a copy of the undertaking given upon the granting of a warrant of attachment.</p>

<p>Costs — Additional allowance by way of costs — Allowance In special proceedings.</p> <p>A motion made by the foreign committee of a lunatic life beneficiary for an order directing the transmission of surplus income to said committee is a special proceeding and, under section 3240 of the Code of Civil Procedure, the trustees and remaindermen who successfully opposed the motion may not be granted an extra allowance of costs.</p> <p>The rule that a court of equity has inherent power independent of Code provisions in the administration of a trust estate to make allowances to parties engaged in litigation which is beneficial to the fund, held not applicable in the present case.</p>

<p>Motion for a peremptory mandamus.</p>

<p>Eminent domain — Condemnation proceedings — Fees of commissioners; Costs — Extra allowance.</p>

<p>Municipal Courts—Procedure — Motion to modify judgment (Municipal Court Act, § 254): Review — Power of appellate court to modify judgment appealed from.</p>

Appeal by defendant from an order of the City Court of the city of New York, denying a motion to cancel and discharge of record a judgment entered in favor of plaintiff.

<p>Appeals by the defendants from judgments in favor of the plaintiff in action No. 1, and by the plaintiff from judgments dismissing the complaint in action No. 2, rendered in the Municipal Court of the city of New York, Sixth District, borough of Manhattan.</p>

Appeal by the plaintiff from a judgment of the City Court of the city of New York, dismissing the plaintiff’s complaint, and also 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 Oourt of the city of New York, Thirteenth District, borough of Manhattan.</p>

<p>Modification and merger of contracts — Merger of contract of sale in deed — Contract for sale of fixtures and warranty.</p> <p>Fixtures — Determination by express agreement — Agreement between grantor and grantee.</p>

Appear by the defendant from a judgment in favor of the plaintiff, 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 defendants, rendered in the Municipal Court of the city of New York, Seventh District, borough of Manhattan.

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

Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, Second District, borough of The Bronx, rendered in favor of the defendant for a nonsuit.

<p>Municipal Courts — Procedure — Motion to amend judgment — Must tie made within five days.</p> <p>Municipal Court Act of the city of New York(L. 1902, ch. 580), § 254.</p>

<p>Municipal Courts — Procedure — Interpleader — By order does not con vert action into suit in equity.</p> <p>Municipal Court Act of the city of New York (L. 1902, ch. 580), § 18;</p>

<p>Appeal by the defendant from an order of the City Court of the city of New York denying defendant’s motion to compel plaintiff’s attorney to receive and accept a notice of appeal from a judgment in this action.</p>

<p>Pleading — Amendments — By leave of court — Subject matter of amendment.</p> <p>Municipal Courts — Jurisdiction — Municipal Court of the city of New York — Action on a quasi contract.</p>

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

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

<p>Carriers — Carriage of passengers — Liability for personal injuries — Actions by passengers — Sufficiency of evidence.</p> <p>Municipal Courts — Review — Saving questions for review — Appeal from judgment enables court to review facts.</p>

<p>Damages — Limitation of liability to natural and proximate consequences— Proximate consequences of tort.</p>

<p>Brokers — Compensation — Actions — Evidence — Weight and sufficiency.</p>

<p>Municipal Courts — Procedure — Pleading — Dismissal of complaint for failure to state cause of action.</p> <p>Pleading — Motions relating to pleadings — Motion to dismiss — For failure of complaint to state cause of action.</p>

<p>Appeal by the defendant from a judgment in favor of plaintiff taken by default in the Municipal Court of the city of New York, Seventh District, borough of Manhattan, and also from an order denying defendant’s motion to open his default.</p>

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

<p>Municipal Courts — Review—Saving questions for review—Appeal from judgment does not authorize review of order denying motion' to vacate attachment.</p>

<p>Appeal from a judgment of the Municipal Court of the city of New York, Thirteenth District, borough , of Manhattan, in favor of the plaintiff, after a trial before the court, without a jury; and from an order denying the defendant’s -motion to vacate an attachment.</p>

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

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

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

Appeal by the defendants from judgments in favor of the respective plaintiffs, rendered in the Municipal Court of the city of Hew York, Fifth District, borough of Manhattan.

<p>Appeal by the plaintiffs 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 in favor of the plaintiff, rendered in the Municipal Court of the city of New York, Twelfth 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.

<p>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.</p>

<p>Carriers — Carriage of passengers — Liability for personal injuries — Contributory negligence — Leaving car while in motion: Actions for personal injuries — Instructions.</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.

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

<p>Hegligence — Acts or omissions constituting negligence — Personal conduct in general — Leaving horses loose or unattended.</p>

<p>Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of Yew York, Fourth District, borough of Manhattan, in an action for personal injuries, tried before the court without a jury.</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.

Appeal by the plaintiff from a judgment in favor of the defendants, rendered in the Municipal Court of the city of Hew York, ¡Ninth District, borough of Manhattan.