Volume 49 — New York State Reporter

<p>1. Mechanics’ lien—Payment.</p> <p>Defendant agreed to erect a block of buildings for K. for the aggregate price of $38,000, payable in stipulated instalments. Defendant subcontracted tlie work to A., who became liable to Mack for $1,317 worth of materials, of which A. paid him $114 and defendant paid him $500, leaving due $603 for whicn Mack filed a lien. A. had so far performed his contract that $5,000 would complete it and had actually earned $19,000 more than he had been paid, when defendant under the power reserved in the contract took the work away from A. and completed it himself so that a large sum became due to A. Held, that as there were no liens against the property at the time A. paid Mack $500, the latter violated no rights or equities in receiving it to apply upon an antecedent debt.</p> <p>2., Same. -</p> <p>Material men and workmen have no lien or equity in money due or paid under a building contract until they have filed their liens pursuant to the lien law.</p>

<p>Appeal—New trial.</p> <p>A referee to whom, a disputed claim against an estate, consisting of two loans, was sent, decided that one of the loans was not proved to, have been made upon a usurious agreement, but held that the second loan was usurious and could not be recovered. The special term confirmed his report as to the second loan but reversed it as to the first, and ordered a new trial. This was affirmed by the general term, but on appeal to this court the creditor gave no stipulation for judgment absolute. Held, that the appeal from so much of the order as awarded a, new trial must be dismissed because of such omission.</p>

<p>Reference—Appeal.</p> <p>Where there was evidence on both sides of the question for the consideration of the referee, even if this court is of the opinion that the weight and preponderance of the evidence is in favor of the view contrary to that taken by the referee, his finding must be taken as conclusive.</p>

<p>1. Homicide—Evidence.</p> <p>Upon the trial of defendant for the murder of a helpless old woman, it was proven that on the day preceding the killing defendant’s face bore no marks of any scratch or wound, while on the day following witnesses noticed scratches on his cheek, concerning which he gave two different accounts. A medical expert failed to find any cuticle or substance from a human body under the nails of deceased and testified that the nails were very short, as if deceased had been in the habit of biting them off. Witness was then allowed, under, objection, to testify that he saw the scratches and that there were nails of the deceased sufficient to make a mark such as he saw upon defendant. Held, error; that this was an opinion merely, upon which the jury could form an opinion intelligently as well as he.</p> <p>3. Same—Indictment.</p> <p>The indictment charged defendant with killing the deceased by means and in a manner to the jurors unknown, and in a second count charged that defendant, without a design to effect death, killed her while engaged in an attempt to commit rape. Held, sufficient, and that no error was committed in refusing to compel the counsel for the prosecution to elect upon which count they would proceed to the trial of defendant.</p> <p>3. Same.</p> <p>Deceased was found on the floor of one of the rooms of her house lying on her back, almost naked, and quite dead. Several of her ribs had been broken, but the immediate cause of her death was leftyomewhat in doubt. Held, that there was sufficient proof of the corpus delicti; at any rate, the evidence was ample upon which a jury might come to the conclusion that criminal means were the cause of her death.</p> <p>4. Same.</p> <p>The court refused to charge the jury as requested, that mere probability</p> <p>of guilt, however strong, was not sufficient to warrant a conviction. IIeld, that while as an abstract proposition the court erred, as explained by other portions of the charge it was proper.</p> <p>8. Same.</p> <p>There was no error in proving defendant’s declarations when examined before the coroner.</p>

<p>Damages—Breach oe contract to make provision in will to pat for services.</p> <p>Decedent contracted with plaintiff that for additional services to be rendered by her he “ would provide for her in his will or by a codicil.” He made no testamentary provision for her. In an action against his estate for such services, Held, that the rule of damages was the value of the services.</p>

<p>1. Pbincipal and agent—Investments—Accounting.</p> <p>In 1855 defendant’s intestate took $25,000 belonging to plaintiff for investment. In 1868 lie had $32,000, partly in bonds and invested in western securities yielding ten per cent. In 1882 he only had $94,000. Plaintiff led a simple life, not expending over $300 a year. On intestate’s death he had $151,000, of which defendant alloted only $64,000 to plaintiff, which left intestate $40,000 more than plaintiff, although he had a very small capital in 1855. The referee in this action found that in 1886 the amount dye plaintiff was $125,000. Held, no error.</p> <p>2. Same—Estoppel.</p> <p>Plaintiff was not estopped from demanding an account of the manner in which the duties of agent were performed, by her acquiescence in the method adopted by intestate, which consisted simply in a separation and identification of her securities.</p> <p>3. Same—Evidence.</p> <p>The referee refused to admit a book kept by intestate, making no reference to any other, not bringing down a balance of account and beginning four years later than the one put in by plaintiff,and containing a statement, “ all loans in my name belonging to L. Doolittle have now been paid except B. Mundy and proceeds invested in her name.” Held, no error; as this was an independent declaration in intestate’s own behalf.</p>

<p>1. Executors and administrators—Sale op real estate—Limitation.</p> <p>The statute of limitations is suspended as against a debt due from the decedent to the executor from the time of the death to the first accounting, not only in the proceeding to prove the same, but also in any proceeding or action to enforce it.</p> <p>3. Same.</p> <p>Plaintiff’s grandmother devised her residuary estate to defendant in trust for her children, with power of sale of the real estate for the purpose of paying off encumbrances, or for any other purpose which, in his discretion, may render it advisable so to do. Defendant accounted for the first time seventeen years after testatrix’ death, and, at such time, a claim in his favor was allowed, and the proceeds of a sale of real estate was directed to be applied thereon. Seld, that the claim was not barred by the statute, and that he had the right, under said power, to sell the real estate for the payment of the balance of said claim.</p>

<p>Masteb and servant—Negligence.</p> <p>While plaintiff was engaged in unloading a boat for defendant by means of tubs raised and lowered by an engine, he was injured by the fall of a tub. It appeared that the tub fell by reason of the blunder of a stable-' man while he was being instructed by defendant’s engineer in the method of operating the engine in obedience to defendant’s orders. Held, that this was not one of the risks assumed by an employee, and that the question of negligence was one for the jury.</p>

<p>Appeal from judgment of the supreme court, general term, first department, affirming judgment of special term for plaintiff.</p>

<p>Negligence—Contributory—Crossing track enveloped in smoke.</p> <p>Plaintiff’s intestate, a young woman, while crossing defendant’s track, was killed by an engine backing at a high rate of speed. The bell was not rung or the whistle sounded, and the flagman was absent from his post. Intestate was prevented from seeing approaching objects by a volume of smoke from an engine, which had just passed. Aid, that it could not be said as a matter of law that deceased was guilty of contributory negligence.</p> <p>(Heaney v. Long Island B. B. Co., 113 N. Y., 133; 30 St. Rep., 396, distinguished.)</p>

<p>1. Religious corporations—Proof of incorporation.</p> <p>Where the original certificate of incorporation of a religious corporation is lost and cannot be produced, a duly certified copy of the record thereof is admissible.</p> <p>3. Same—Acknowledgment of certificate.</p> <p>It is sufficient that the official character of the officer who took the acknowledgment appears in the body of the certificate.</p> <p>3. Same.</p> <p>An acknowledgment before a commissioner of deeds has the same force and validity as if taken before one of the officers named in the act of 1813.</p> <p>4. Ejectment—Adverse possession.</p> <p>In 1845, plaintiff, claiming to have purchased certain land from one D., erected a church thereon, and in 1856 erected fences around the premises, and remained in possession until 1888, when defendant, claiming under a</p> <p>deed from a grantee of D.’s son, ousted it by erecting fences so as to exclude it from all but the church edifice. The deed to defendant’s predecessor described the entire D. plot, ‘ ‘ except a small lot sold off from the southwest corner of the above described premises to the Methodist E. Church.” No deed was given to plaintiff until 1882. Held, that the title to the premises in question did not pass to defendant’s predecessor under his deed, and that plaintiff had title by adverse possession.</p>

Sullivan to Henry Bradley, his successor in office. Said Sullivan was the supervisor in office prior to March 1st last. At the town meeting on that day there were 209 votes cast for the office of supervisor, of which Sullivan received ninety-nine and Bradley (the petitioner) 110.

<p>Appeal by the plaintiff from a judgment entered upon the direction of the trial judge, dismissing the complaint.</p>

<p>1. Charter party—Conflict of laws.</p> <p>A charter party entered into at New York between a citizen of that state and foreign vessel owners, to carry goods to a foreign port, nothing in the agreement showing a contrary intention, must be governed by the laws of New York.</p> <p>3. Same—Foreign judgment.</p> <p>A charter party provided for the payment of the freight upon delivery of the cargo at the port of discharge. The bark was wrecked before it reached such port, and a foreign vice-admiralty court ordered a portion of the money realized from tlie sale of the wrecked vessel and cargo to be paid to defendants as pledgees of the vessel and cargo. Held, that plaintiffs, who claimed under the charter, were not bound by the judgment of the foreign court, they not having been parties to the proceeding.</p>

<p>1. Libel—Actionable words.</p> <p>An article in a newspaper stating that a failure was caused by the firm’s foreign agent's, plaintiff’s, reckless speculation, is libelous per se, and allegations of special damage are not needful to the cause of action.</p> <p>2. Same—Pleadino—Demurrer.</p> <p>The plea of truth in defense is new matter, within the meaning of the statute, and demurrer is the proper remedy if such defense is insufficient.</p> <p>3. Same—Justification.</p> <p>A plea of justification which relates to portions only of the publication, and which is not specially pleaded as a partial defense or in mitigation, is insufficient.</p>

<p>Receiver—'Title .</p> <p>A receiver appointed to take charge of an hotel and its property and to conduct the business, hut given no power to sell any of such property, except in the ordinary course of the business, is not vested with the title to such property, and it does not become assets in his hands to pay the receivership expenses.</p>

<p>Appeal from judgment of the supreme court, general term, fourth department, affirming judgment in favor of plaintiff..</p>

<p>Appeal from judgment of the supreme court, general term, fourth department, affirming judgment in favor of plaintiff.</p>

<p>Appeal from judgment of the supreme court, general term, fourth department, affirming judgment in favor of plaintiff.</p>

<p>Appeal from judgment of the supreme court, general term, fourth department, affirming judgment in favor of plaintiff.</p>

<p>1. Homicide—Evidence.</p> <p>The prosecution on a trial of defendant for murder proved that during the affray one K., using the same pistol with which defendant fired the fatal shot, shot at and wounded one H. It was not objected to on the trial. Meld, that the evidence was of no importance, could not have been harmful to the defendant, and was competent as one of the circumstances attending the homicide.</p> <p>2. Same—Credibility of witness.</p> <p>Defendant’s counsel, sworn as a witness on his behalf, on cross-examinatian was- asked “ whether he had anything at stake in the trial,” and answered that he had wagered ten dollars that he would acquit defendant. Meld, that it was competent to show the interest of witness in the result of the trial and as bearing on his credibility.</p> <p>3. Jury—Code Crim. Pro. , § 427.</p> <p>After the jury had been brought into court and instructed by the judge, they again sent word to him that they desired further instructions, and he informed them that he could not give them further instructions as defendant’s counsel was absent. Meld, that this was not a violation of Code Crim. Pro., § 427.</p>

<p>Appeal from order of county court setting aside verdict and granting new trial.</p> <p>Action for goods sold,</p>

<p>Appeal from judgment dismissing complaint.</p> <p>Action for damages for the loss of a finger while coupling cars.</p>

<p>Application for remission of forfeited recognizance, etc.</p>

<p>Appeal from judgment in favor of plaintiff.</p>