Volume 5 — New York Miscellaneous Reports

Upon May 1, 1888, the plaintiff rented of the defendant certain premises in the city of Ithaca. The lease was oral, covering no particular time. At the time of the leasing the premises contained a defective cooler, which suffered the water accumulating from the ice placed therein, to run down upon the floor and from the floor down the side planks of the cellar stairway.

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

Petition oil behalf of Elizabeth G. Delano, Emily Graebe, Gertrude N. Packard, Elizabeth Grant and Mary L. Grant, for an order directing the receiver to permit them, or their representative, as stockholders, to make an inspection and examination of the books, papers, writings and property of the Cataract Bank, and to make abstracts therefrom, and that the court order and direct that no application shall be made to the court, nor shall any action of the court be asked for or…

<p>Teial of an issue of fact. The opinion states the ease.</p>

<p>Motion for a new trial on case and exceptions. The opinion gives the facts.</p>

<p>In the city of Buffalo the division of the wards into election districts must originate in the hoard of aldermen, hut the board of councilmen may amend any measure transmitted to it. The board of aldermen at a regular meeting, held July 10, 1893, adopted a resolution to redistrict the first, seventeenth, eighteenth, twenty-fourth and twenty-fifth wards, taking separate action as to each ward. On the resolution being transmitted to the board of councilmen, they took action upon all of the wards embraced in the resolution at once, approving of the redistricting of the twenty-fifth ward, but disapproving as to the others. Thereupon the board of aldermen adopted a resolution in favor of redistricting the first, seventeenth, eighteenth, twentieth and twenty-fourth wards and returned the same to the board of councilmen, where it was laid on the table. Held, that if the new districts proposed by the board of aldermen contained more than 400 voters the council was justified in refusing to approve of the resolution, but in that case it was its duty under the city charter (Tit. 2, chap.' 1, § 5), to amend the same so as to redistrict the wards into districts containing not more than 400 voters and return the resolution as amended to the board of aldermen for further consideration.</p> <p>The charter election in the city of Buffalo takes place at the same time and on the same day as the general election, and the inspectors of election are elected at such time.</p> <p>Under the statute (Laws 1892, chap. 680, § 8) the common council of every city, except New York and Brooklyn, in which there shall be a ward containing more than 400 voters, “ shall, at least thirty days before the election of inspectors of election, divide such wards respectively into election districts, each of which shall be compact in form, wholly within the * *. * ward and shall contain not more than 400 voters,” etc., and “the creation, division or alteration of an election district shall not take effect until the * * * city election occurring next thereafter, and at such * * * city election inspectors of election shall be elected for such district.” Held, that as more than a month yet remained in which the common council could discharge its duties, an application for a peremptory writ of mandamus directing the board of councilmen to redistrict the wards above mentioned should be denied as premature.</p> <p>The language of the statute that each election district “shall contain not more than 400 voters,” means people living in the ■ district who are entitled to vote.</p>

<p>Application for a peremptory writ of mandamus to compel the awarding of a contract to print the proceedings of the common council and other matters to the relator.</p>

<p>Trial of an issue of law.</p>

This is a motion to set aside and vacate a writ of certiorari, to review the action of the assessors of the town of Seward, Schoharie county, in assessing property of the relator.

<p>Motion by the defendant for a new trial after a verdict for the plaintiff at the Circuit.</p>

This is an application for the prohate of the will of Mary A. Clark, deceased. Its prohate is contested on the grounds : First. That the instrument was never executed by the deceased (that she was at the time of its alleged execution incompetent from illness to execute the same), and, second, that if the instrument was executed bv her its execution was o V procured through fraud and undue influence. The facts appear in the opinion.

Motion by the plaintiff for leave to discontinue the action as-against the defendants Clinton E. Avery and Clayton D. Avery, and for an order allowing this action to be continued against the other defendants, by the plaintiff’s attorney, for the recovery of his costs under his statutory lien therefor.

<p>Where the personal estate remaining for distribution is insufficient to pay legacies in full, legacies to a widow in lieu of dower are entitled to priority and carry interest from the death of testator, although their value exceeds that of the dower interest.</p> <p>One of the legacies to the widow was the use of §15,000 during life, or until she should remarry; then followed a provision disposing of the fund after the termination of the widow’s use, and appointing a trustee to carry the bequest into effect. Held, that the widow was entitled to interest on the §15,000 from the death of testator until the fund was turned over to the trustees.</p> <p>The testator, at the time of his death, had an interest in a lease made by the Seneca Nation of Indians, and also an interest in a tract of land which he and others had bought, the title being' taken in the name of one F., who gave to each a writing defining the extent of their respective interests. Held, that the wife’s dower attached to the husband’s interest in said lands.</p> <p>Besides the legacies to testator’s widow, there were legacies given to his mother, son, grandchildren and other relatives and to several societies. Held, that said legacies abated pro rata.</p> <p>The order in which legacies appear in a will creates no priority either inter se or over other general legacies.</p> <p>One of the legacies to the son was the use of a fund for life. Held, that he was entitled to interest from the death of testator upon such part of the fund as remained after the pro rata abatement.</p> <p>Evidence considered, and held, that the executors were justified in holding the funds of the estate without investment for a period of six months after their appointment, but should be charged with interest at four per cent after the six months to date of filing their account.</p>

Heabiktg of exceptions taken by Ellen O’Brien, legatee under the will of said deceased, to the report of the referee upon the judicial settlement of the account of the executors. The executors having cited the necessary parties to this proceeding, filed their accounts, duly verified, with vouchers.

<p>A credit in an executor’s account for repairs made, after the death of his testatrix, to a house devised by her, constitutes no debt of the testatrix and cannot be allowed against her estate; neither can it be allowed to the executor as a repair or expenditure for the preservation of the estate, as the executor had no legal authority to incur the charge, the real estate, after payment of debts and funeral expenses, having been specifically devised.</p> <p>The real estate, after payment of debts and funeral expenses, was devised to a daughter-in-law and a grandson of testatrix, but the executor was empowered and authorized to- sell any part of said real estate for the payment of debts and funeral expenses, and to give and execute good and sufficient deeds to the purchaser Held, that the executor wag. properly allowed in his account for taxes paid by him which were assessed on the real estate both before and after the death of his testatrix.</p> <p>Expenses of final accounting should not appear in the account, but should form a part of the bill of costs presented for allowance and taxation upon entry of the decree passing the account.</p> <p>Where a claim against an estate has been presented to the executor and he rejects the same, the surrogate has no jurisdiction to decree its payment. The testatrix, her son and executor, his wife and two daughters, lived together as one family in the house of testatrix, without rent or anything being said about it. Nothing was ever said as to compensation to anyone for services rendered testatrix, and no promise whatever was made as to payment therefor. Held, that a payment on a claim presented by the wife of the executor, assigned by him to her for services in the caring for and nursing the testatrix during the last years of her life, should be disallowed, and for the purpose of distribution of assets, the claim regarded as invalid.</p> <p>The testatrix died June, 1889, and contestants claimed that the executor should be charged with the reasonable value of the use and occupation of the house of testatrix, which he occupied with his family for several years prior to the death of testatrix and up to the time of the sale of the: same in January, 1893. Held, that as to the period preceding testatrix’s death, there being no evidence of a promise to pay rent, none would be implied; and that as to any claim for use and occupation subsequent to the death of testatrix, it was a matter between the executor individually , and the devisees.</p> <p>A surrogate has no jurisdiction to direct an administrator or executor to pay over funds in his hands received by him and belonging to the widow and next of kin of the deceased, or to his devisees, which are not assets of the estate.</p>

Action to have the rendering works of the defendant in the town of West Seneca declared a nuisance, and their continued use restrained by injunction.

<p>A legacy of §7,500 “in government bonds "isa general legacy, and means that the money is to be used in obtaining bonds which are to be delivered as the will provides.</p> <p>At the time of giving instructions for drawing his will testator had before him government bonds to the amount of §7,500, which he separated into two or three piles, one of which corresponded with one of the legacies in the will. These bonds were a part of his estate at the time of his death, and were the only government bonds held by him at that time, and probably at the time of drawing the will, and were inventoried at a premium of fifteen per cent, amounting in all to §8,635. Certain legatees objected to the account filed by the executors, and claimed that the legatees of money “in government bonds” should receive then-legacies in money, amounting in all to §7,500, and that the premiums thereon were a part of the estate to be divided among the residuary legatees. Held, that the executors should be credited with the full amount paid to said legatees.</p>

Appeal to the surrogate from an order which assessed the-value of a bequest to the government of the United States, and fixed the tax thereupon.

<p>The half brother of an intestate is entitled to letters of administration in preference to a sister of the whole blood.</p>

<p>Claim for interest on legacy. The opinion states the ease.</p>

<p>Application for probate of will. The opinion states the ease.</p>

On or about the 15tli day of November, 1886, under authority of the statute, the city of Elmira issued its bond for $2,000, agreeing to pay the holder thereof upon the 15th day of November, 1891, the said sum with interest at three and one-half per cent per annum. Attached to the said bond was a coupon, whereby the city of Elmira agreed to pay the bearer upon the 15th day of November, 1891, thirty-five dollars, being six months’ interest upon the aforesaid bond.

<p>Pbobate of last will and testament.</p>

<p>Demubbeb to complaint.</p>

<p>Where the directors of an insolvent corporation refuse to bring proceedings for its dissolution so that the rights of the creditors and stockholders may be equally distributed, and there is danger that all the assets will be wiped out on executions, a stockholder may maintain an action in equity to compel such distribution of the assets.</p> <p>Where in such a case it appears that all the rights of the creditors-to the assets, except those of judgment creditors, may be absolutely lost, a receiver will be appointed to preserve the assets for the benefit of all.</p>

<p>Where a lessee, without the express consent of the landlord, sublets and the undertenants hold over after the expiration of the lessee’s term, the latter is liable for the rent the same as if he had remained personally in possession.</p> <p>Motion by defendant for new trial on the minutes, where a verdict was directed in favor of plaintiff.</p>

Action to recover damages caused to plaintiff’s goods by an overflow of water from a faucet left open in defendant’s premises..

Testator died since the passage of the act, chapter 175 of the Laws of 1898, leaving a will in which he nominated his wife guardian of the persons and estates of his two children,. The widow applied for letters as testamentary guardian of the estates of said minors, claiming that the act applied only to guardians of their persons, and that the law remained unaffected as regards to the guardianship of their estates.

<p>The court deals with executors and administrators with much greater liberality where investments, which result disastrously, come into their hands from the deceased. They are only required to act in good faith and to exercise a sound discretion; and although, by the light of subsequent events, the course determined upon may appear unwise, they cannot be held liable for any loss or depreciation of stock unless it be found that they acted carelessly or in bad faith.</p> <p>Among the assets which came into the possession of the administrators were a lot of corporate securities of a speculative character. These were retained, and as a whole resulted in very large profit to the estate. Among these securities was stock in a mining company, to protect which the administrators subscribed for §5,000 of its bonds. This stock eventually proved unsalable, and objection was made on the accounting to the allowance of this subscription as a disbursement. Held, a distributee cannot select one of many investments of the same class which may have resulted disastrously and reject the same, while approving of similar investments and accepting the profit realized therefrom.</p>

<p>In proceedings by the district attorney under the Transfer Tax Act (Chap. 399, Laws of 1892), the costs and disbursements to which he may deem himself entitled to, in case of success, must be taxed in the same manner as costs in other proceedings in a Surrogate’s Court.</p> <p>In order to entitle himself to the certificate under section 15 of the act, where he is unsuccessful he must apply therefor upon proof showing his. nonsuccess, and furnish evidence to establish to the satisfaction of the surrogate that there was probable cause for issuing the citation and taking the proceeding.</p>

By his will, dated the 25th day of September, 1889, the deceased appointed his wife, Annie W. Howard, the guardian of his two minor children, who were both under the age of fourteen years. He died on the 26th day of June, 1893, and the will has recently been admitted to probate. The widow has asked for letters of guardianship by virtue of such appointment.

The deceased left a will bearing date July 30, 1889, by which she bequeathed to the Rev. Thomas McLoughlin of Hew Rochelle, the sum of $300 to say masses for the repose of her soul, in this language: “ I direct my said executor to pay over unto Rev. Father McLoughlin of Hew Rochelle, Westchester county, H. Y., the sum of three hundred dollars for the purpose of masses.

<p>In. an action to recover damages for a wrongful discharge from employment, it appeared that the reason given for plaintiff’s discharge was his refusal to comply with the orders of the officers of the company ; but plaintiff claimed that he was not bound to obey such orders under his contract. Held, that as the point was raised on a motion to dismiss or to direct a verdict, it would be assumed that plaintiff told the truth, and that a motion for new trial after a verdict for plaintiff should be denied.</p>

<p>Unless special damage is pleaded evidence thereof is inadmissible. The-complaint in an action to recover damages for injury to a horse, alleged that by reason of the damages to said horse caused as aforesaid, and the-trouble and expense incurred in consequence thereof, the plaintiff had been injured, in all, to his damage §200. Held, that evidence of how much plaintiff paid for the use of another horse was incompetent as. not within the issue; the allegation of the complaint as to loss was. general, and did not cover any claim for special damages.</p>

<p>Plaintiff stood on the step running along the entire length of a horse car, and the driver of another car belonging to defendant drove his horses against plaintiff, knocking him off and injuring him. It appeared that all the seats were occupied and the rear platform was crowded. 3eld, that in standing upon the step, plaintiff was not guilty of contributory negligence as matter of law, but it was properly submitted to the jury as a question of fact.</p> <p>The court charged that it was the duty of plaintiff on getting on defendant’s car to use reasonable care to put himself into as safe a place as he could procure. Held, that if it was error to so charge, the error was cured by a charge that if there was room on the front platform, it was plaintiff’s duty to take his position there.</p> <p>Plaintiff had a verdict for $1,500. Held, not excessive.</p>

<p>In an action to compel specific performance of a contract to purchase real estate plaintiff cannot succeed unless the title he offers is free from reasonable doubt.</p>

<p>Plaintiff’s son, in defendant’s employ, while at work in an unfinished building, was directed by the foreman to go to an upper floor and get an oil can. After the foreman had used the oil can he told plaintiff’s son to take it back. While on his way up the ladder, which was the only means of getting from one floor to another, he was struck by something falling-through the hatchway. It appeared that he had been fully warned of the dangers lurking around the hatchway, and knew when he went for theoil can that the men on that .floor were “sweeping out,” and was of sufficient age and intelligence to appreciate the risk. In an action by the father to recover for loss of services of his son the plaintiff had a verdict. Held, that as there was no evidence as to how the substance which struck plaintiff’s son came to fall, or who was responsible for its fall, and no proof that it was due to the negligence of defendant or any of its servants, a motion to dismiss the complaint should have been granted.</p>

<p>Defendant U. agreed in writing to pay plaintiff one-half of the amount - of an award for damages received in condemnation proceedings, and that said part should he a lien on the property. The full amount of the award, $26,000, was paid to mortgagees and tenants. A judgment directing U. to specifically perform a contract of sale of the property to McN. was subsequently entered, and U. directed to convey the property subject to the judgment of condemnation. In an action by plaintiff •.against IT. and McN. to recover $3,000 and interest, the complaint prayed judgment that the sum demanded should be declared a lien upon the premises paramount to the claims of defendants. Plaintiff recovered judgment against IT., but as to McN. the complaint was dismissed. Held, that the judgment should be affirmed; that the provision in the judgment in the action for specific performance, that the conveyance should be “subject to the judgment of condemnation,” could not be construed to include plaintiff’s claim. The agreement between plaintiff and IT., never having been recorded or brought to the notice of McN., he was not bound by the provision therein that plaintiff’s claim should be a lien on the property.</p> <p>Conceding that plaintiff had a lien which attached to the award, section 66 of the Code did not apply, as the full amount of the award was paid to mortgagees and tenants, and nothing accrued from the judgment and award that came to respondent’s hands to which any lien could attach.</p> <p>Plaintiff claimed that in equity he should be protected on the ground that whatever equitable rights McN. had, were subordinate to his prior and superior equities. Held, that a finding that there was no evidence that defendant IT. was insolvent, precluded any claim for equitable relief.</p>

<p>Plaintiff, in order to induce defendant, a manufacturer, to take a lease of the two upper floors of a building, repeatedly told him that the building was strong enough for defendant’s wants and purposes, and that he would guarantee that it would be strong enough even in the weakest point. Relying on plaintiff’s statements that the building was of sufficient strength to support the engine for the generation of steam power-required in his business, defendant signed a lease, bought an engine-of the character the plaintiff had pointed out as suitable for his purposes, and took possession. At the first turn of the engine wheel tile-building began to vibrate, and to such an extent as to interrupt the work of all people in the building. Repeated efforts on the part of the landlord to overcome the vibration of the building when the engine was started were futile, and on June 3, 1893, the tenant received notice from the building department of the city that his engine was rocking the building to such an extent as to disintegrate the walls, and he was required to discontinue running the engine at once. This was a joint notice-addressed to the plaintiff as owner, and to defendant as lessee. Defendant at once surrendered possession of the premises to plaintiff, who-brought suit to recover the June rent. The court rejected various offers-of defendant to show plaintiff’s knowledge of the condition of the premises at the time of leasing to defendant; that the building had been; inspected by an inspector of buildings of the building department of the city while defendant was in possession, and found to be so badly constructed as to render it unsafe and unfit for occupancy, and dangerous to life and limb, and was in such condition when defendant abandoned the premises ; that the result of such inspection was communicated to plaintiff ; that plaintiff represented to defendant that the building was perfectly safe and sound, and able to hold such machinery as defendant required in his business, and that he, defendant, explained fully to plaintiff the purposes for which he required the building, and that unless it was fit for such purposes it was useless to him ; that plaintiff warranted the building to be safe .and sound as an inducement to defendant to lease, and that relying on such statements defendant executed the lease; that the warranty and representations were false to plaintiff’s knowledge. The offers were rej ected on the ground that the evidence was incompetent and irrelevant. Held, that the court erred in its rulings ; that the evidence was competent and material.</p> <p>It was also error to refuse defendant’s request to go to the jury on the question whether or not the representations made by plaintiff were ialse and untrue, whether they were material, and whether the defend■ant was induced to sign the lease relying upon the representations, and ;also the request to go to the jury upon the question of the warranty by ■plaintiff as to the condition of the building.</p>

<p>Appeal from a judgment entered upon a verdict of a jury directed in favor of the plaintiff for $221.50, upon a trial before the court and a jury.</p>

<p>Action to recover damages for breach of a contract of employment. The opinion states the case.</p>

<p>In an action to recover a balance claimed to be for services under a contract of employment, the pleadings and evidence made it a question for the jury as to whether there had been a performance of the contract. Held, that a charge that plaintiff was entitled to a verdict, and the only question for them was its amount, was error, calling for a reversal of a judgment in favor of plaintiff</p>

<p>Appeal from an order denying a motion to open a default-</p>

<p>Defendant seduced a domestic in his employ, and while she was pregnant induced plaintiff to marry her, representing that she was good and virtuous. Held, that defendant was liable to plaintiff, and a verdict of §2,000 was not excessive,</p>

<p>Plaintiffs agreed in writing to furnish defendant lithographs, to be paid for promptly as used, and defendant agreed to use and pay for them within two years from the date of contract. In an action to recover a balance due on the contract, held, that evidence of conversations between the parties before and at the time of the making of the contract was inadmissible and properly stricken out-, that evidence of a subsequent agreement affecting details as to the manner of payment wag properly admitted.</p>

Deceased died February 10,1891, intestate, leaving Samuel R. Whitten and John R. Whitten, her grandsons, her only next of kin, who were appointed administrators of her estate on the 17th day of September, 1891.

<p>A candidate cannot claim to be the nominee or representative of a political party unless he has been first regularly nominated by that party; and what constitutes regularity depends upon the usages of the party itself, and not upon any rules or regulations which may seem just and proper to courts or judges.</p> <p>In an assembly district two conventions were held, and two sets of delegates presented themselves for admission to the state convention, and by nearly a unanimous vote the convention called by the county committee was recognized as the regular party convention, and its delegates were admitted, and the claims of the delegates elected by the convention called by a faction which refused to recognize the county committee were disregarded. Held, that a nominee of a district nominating convention subsequently called and held by the faction whose delegates were refused admission to the state convention was not entitled to have . his name printed on the official Democratic ballot.</p>

These are applications for orders directing the board of registry to cancel from the registry lists the names of certain women who have registered under the law of 1892, and who claim the right to vote for the office of school commissioner in the districts outside of the cities. The other facts are stated in the opinion.

<p>A duly executed certificate or declaration of intention to incorporate an insurance company, together with a proposed charter, were transmitted to the state superintendent of insurance, and an application made to him for a certificate of incorporation. The superintendent of insurance transmitted the same to the attorney-general for examination and certification pursuant to Laws of 1893, chapter 725, section 10. Held, that on refusal hy the attorney-general to attach his certificate, the performance of the duty imposed upon him by the statute would be compelled by mandamus.</p> <p>The Idnd of business proposed'to be undertaken and carried on was stated to be as follows : “The inspection and certification as to the sanitary conditions of buildings and premises; the insurance of owners, lessees or tenants of buildings and premises against loss or damage to life or health from causes arising from the imperfect sanitary conditions of such buildings or premises; the insurance of landlords, lessees, tenants or occupants of houses, flats or office buildings or other structures from loss occasioned by imperfect plumbing, bursting pipes, or leaks, to walls, ceilings, furniture or goods, and for the doing of such other business as may be lawfully connected with the business of sanitary inspection, care and insurance, at such rates and upon such conditions as may be ordered and provided by the directors of said company, under subdivision 8 of section 70, article 11 of chapter 690 of the Laws of 1892.” Said subdivision 8 provided as follows: “Against any other casualty specified in the charter which may lawfully be the subject of insurance.”</p> <p>The attorney-general refused to attach his certificate of approval because, as stated by him in a communication to the superintendent of insurance, the proposed business was “not a kind of insurance that can be lawfully carried on under said section.” Held,, that the proposed business was not . contrary to public policy or good morals and violated no business principle, and the relators were entitled, as matter of right, to their certificate of incorporation.</p>

<p>An employee of a firm invented certain compounds for flavoring tobacco, with materials furnished by the firm, the full intent of all parties being that the processes by which such substances were concocted should belong to the firm and remain trade secrets. For many years he never claimed or suggested ownership therein by himself. Held, that the firm became and was the proprietor and owner of such processes, although no assignment thereof had ever been made by the inventor.</p> <p>Neither secret processes of manufacture, nor trade marks or names which have been applied to their products, owned by a copartnership, are proper subjects of sale upon dissolution; but each member of the firm may thereafter, in the absence of an agreement to the contrary, manufacture by such processes and use such names.</p> <p>The inventor of such processes, together with another employee of said firm, left such employ and formed a partnership to carry on the business of manufacturing tobacco flavors, in which new partnership they were secretly joined by one still a member of the old firm. Held, that the new firm was accountable to the old firm for all profits derived through the use of such processes before the dissolution of the latter; that the new firm was legally entitled to use the processes, together with the trade marks, after such dissolution; but that the members of the new firm should be enjoined from representing that they were the exclusive owners thereof.</p>

Action by the plaintiffs, as residents and taxpayers of the city of Utica, to restrain the common council of said city from entering into contract for the paving of certain streets with asphalt pavement made in part out of pitch to be obtained from “ Pitch Lake in the Island of Trinidad,” or exclusively from any particular place, and not obtainable in the open market, upon the ground that such a contract would prevent competitive bidding, and thus be illegal and void, as…

This is a proceeding under section 2725 of the Code of Civil Procedure to compel the administrator to account and distribute the estate.

<p>Appeal from an order of the surrogate assessing the values of certain life estates and a remainder created by the will of testatrix and fixing the transfer tax thereupon. The facts are fully stated in the opinion.</p>

<p>Motion for injunction.</p>

<p>A codicil to a will provided as follows: “If, by reason of any error in name or description, a question shall arise as to any beneficiary intended by me to be named, whether in my will or in any codicil, I direct such question to be determined by my executors. If, by reason of want of incorporation, or for any other cause whatsoever, any society or institution named in my will or any codicil shall be unable to take the legacy intended for it, I give and bequeath such legacy absolutely to the person who shall be president of such institution or society, if it has a president, and if not, to the person who shall be its treasurer, if it has a treasurer, and if not, to the person who shall be its chief executive officer, to be by him applied to the uses and purposes of such institution or society. The rest, residue and remainder of my estate, not disposed of by my will or by any codicil, I give and bequeath to my executors, to be divided by them among such incorporated religious, benevolent and charitable societies of the city of New York, and in such amounts as shall be fixed or appointed by them, with the approval of my friend, the Rev. Dr. William R. Huntington, if living. If, for any reason any legacy or legacies left by my will or by any codicil, either pecuniary or residuary, shall lapse or fail, or for any cause not take effect, either in whole or in part, I give and bequeath the amount which shall lapse, fail or not take effect, absolutely to the persons named as my executors.”</p> <p>In an action brought for the construction of the will, held, that the first clause of the bequest of the' residuary estate was valid; but if such conclusion was wrong, the whole residuary estate passed to the executors absolutely and without any limitation or restriction.</p> <p>The will was dated May 2,1890; codicils thereto were dated May 22, 1890, and May 27, 1890; the testatrix died May 29,1890. Reid, that bequests to such charitable institutions as were incorporated under the act of 1848 were void; but that bequests to corporations which, by charter, were exempted from the operation of said act were valid.</p> <p>The answer of one of the defendants alleged that, in making and executing her will and the codicils thereto, the testatrix was guided and unduly influenced by her legal adviser. On appeal from a decree of the surrogate admitting the will to probate, it was held that the mere fact that the attorney who drew the will was named as executor and residuary legatee was insufficient to create a presumption against the validity of the legacy, on the ground of undue influence; that at most it was a suspicious circumstance, the effect of which might be dissipated and deprived of weight by the facts of the case. Held, that as nothing was developed on the trial of this action which would justify a conclusion that the execution of the will was produced by undue influence on the part of the legal adviser of the testatrix, the alleged defense must fail.</p>

<p>A writ of certiorari to review the proceedings of the board of excise of the town of Argyle, Washington county, in refusing to grant a license, was issued at the Saratoga Special Term on the 1st day of July, 1893, upon the verified petition of Fred. McNaughton, the applicant, and was made returnable before Hon. S. Alonzo Kellogg at his Chambers in Plattsburg, N. Y., on the lltli day of July, 1893. The opinion sufficiently ' states the facts.</p>

<p>The true rule, in proceedings under the statute for delivery of books and papers by a public officer, is that one having a prima facie title, evidenced by an election or appointment valid on its face, must prevail over one claiming the right to the title.</p> <p>Relator and respondent were rival candidates at a town meeting for the office of town clerk. Respondent was the incumbent of the office at that time. At the close of the polls the canvass of the votes showed that each candidate had received 10$ votes, and such result was entered in the minutes of the meeting kept by respondent. Thereafter a majority of the town board made a written appointment of relator as town clerk, which was duly filed and the oath of office taken by the appointee. Thereafter, on a motion by relator for a delivery of the books and papers of office, respondent claimed that, notwithstanding the official record showed a tie vote, whereby there was no election, yet the canvassers erred in making the count, and that he had two more votes than relator, and for that reason refused to deliver the books, etc., to relator as his successor. Held, that as relator had a prima facie title to the office in question he was entitled to the records thereof until respondent, in an action of quo warranto, established his right to the office by proof that he received a majority of the votes cast.</p> <p>In re Bams, 19 How. Pr. 323, not followed.</p>

<p>The deceased left a will bearing date April 6, 1880. She died September 29,1882, and the will was admitted to probate in November of the same year. The will provides as follows:</p> <p>“ First. After all my lawful debts are paid and discharged, I give and bequeath to my daughter, Catherine E. Bolton, all my household furniture, beds and bedding, and my silver and plated ware, and all my clothing.</p> <p>“ Secondly. I give, devise and bequeath to my son, Henry B. Bolton, the house and lot where he now resides in the town of Westchester.</p> <p>“ Thirdly.” Provided for the investment of the sum of $1,500, the interest of which was to be paid to the trustees of a church towards its support, which provision has been held to be void, and also for the erection of a monument and putting in order the family cemetery at Woodlawn, in case she should not do so before her death. In the same clause was used the following language: “ And I also give power and authority to my executors to sell any and all of my real estate, either at public or private sale, whenever in their judgment they may deem for the best interest of my estate, and to give good ■and sufficient deed or deeds for the same.” By the next clause she provided as follows: “ I give, devise and bequeath all my estate, both real and personal, not hereinbefore bequeathed, to my children” (naming seven, among whom are the two executors) “ and my adopted son, William H. Birchall, to be equally ■divided between them, share and share alike.”</p> <p>Other facts appear in the opinion.</p>

The affairs of this estate were under consideration in this court recently. See case reported in 1 Misc. Rep. 491. On the second of August last, Harriet A. Burtis, a beneficiary under the will of the deceased, filed h petition praying for a-citation requiring Nathaniel B. Valentine to show cause why he should not render a new and further account- as testamentary trustee of his proceedings since filing his former account.

<p>Application for alimony and counsel fee in an action for divorce.</p>

<p>Where, by a contract between the owner of real estate and a broker, the latter has the exclusive right, for a certain time, to sell the property or find a purchaser, if at any time during that period he brings to the owner a purchaser ready and willing to accept the terms of the contract of sale, he is entitled to his commissions, though the owner in the meantime has sold the property to the knowledge of the broker.</p>

<p>A bond, the consideration of which is the release of a defaulter from custody, and an agreement not to prosecute him for the larceny, is void as against public policy.</p> <p>Plaintiff's treasurer was a defaulter, was indicted, and while in custody defendant and others executed a bond to plaintiff to indemnify it against the loss which it had sustained by the misconduct of its treasurer, on condition that plaintiff should forbear enforcing the collection of its claims against the defaulting treasurer for two years, and expressed the nominal consideration of one dollar. It appeared from the evidence that the true consideration of the bond was the release of the defaulter from custody, plaintiff agreeing not to prosecute him on the indictment. Held, that the bond was void as against public policy, and defendant not having been a party to the undertaking might interpose the defense of illegality.</p>

<p>The only remedy against a defective pleading in an action brought in the Municipal Court of Buffalo is a demurrer.</p> <p>In an action brought in the Superior Court of Buffalo upon a verified complaint by an attorney for professional services, the answer was as follows; “ The defendant above named, for his answer to the complaint herein, says, that upon information and belief he denies each and every allegation in the said complaint contained.” The answer was objected to, presumably on the ground that it was defective in form and sham; the objection was sustained, and on the adjourned day the parties appeared and the court struck out the answer and plaintiff had judgment. On appeal, held, that the answer was good; that the court erred in striking it out, and that the judgment should be reversed and a new trial ordered.</p>

<p>Appeal from a judgment of the Municipal Court of Buffalo.</p>

<p>Appeal by defendant Robie from a judgment rendered by the Municipal Court of Buffalo.</p>

<p>Appeal from a judgment rendered by the Municipal Court of the city of Buffalo.</p>

<p>Plaintiff caused money to be deposited in a savings bank in the name of a daughter without her knowledge, and always kept the bank book in her possession. After the money had been deposited, the daughter saw the bank book and was told by plaintiff at the time, that in case of the plaintiff’s death, she should have the money. The daughter died first. In an action by the plaintiff against the administrator of the daughter’s estate and the savings bank to compel payment of the deposit, held, that there was no gift of the money to the daughter, and that plaintiff was entitled to recover.</p>

<p>■ This is a motion by the plaintiff for a new trial on exceptions ordered to be heard in the first instance at General Term.</p>

.This is an appeal by the defendant from a judgment entered upon a verdict rendered by direction of the court in favor of the plaintiff for $2,400 against the defendant.

<p>In this case the facts relied on by plaintiff were the same as in the preceding case (Close v. Potter), but defendant established that he became a stockholder by transfer of stock from two prior stockholders after the debt sought to be enforced against him had been incurred, and claimed exemption from liability. The court denied plaintiff’s motion for the direction of a verdict, and granted a similar motion by defendant; plaintiff excepted to both rulings. Held, that defendant took the transfer of stock subject to all the burdens and liabilities attached to or growing out of them, and was liable to the extent of his holding. Motion for new trial granted.</p>

Action for separation from defendant’s bed and board because of his abandonment of plaintiff, and neglect or refusal to provide for her support.

<p>The will of testatrix provided as follows; “ Third. I will and bequeath, the residue of my property to my three remaining heirs, namely, my sister Elizabeth J. Mack, my deceased brother Allen Jewett, his heirs being Allen Stanley Jewett and Elizabeth E. Jewett, and to my deceased brother Rodney Jewett, his heirs being Mary Electra Jewett Blake, Jane Arabella Jewett Wood, Nathan Rodney Jewett, Harriet Jewett Gardner, Gertrude Eliza Bardwell, Fred B. Jewett, and Lavina Adalaide Jewett Starke. Fourth. I will that the sum of five hundred dollars be paid to each of the heirs of my deceased brother Allen, namely, Allen Stanley Jewett and Elizabeth E. Jewett, within one year, or as soon after my decease as can be done by'my executors without sacrifice of property, provided, however, that the above sum shall not exceed the portion bequeathed above in 3rd to the said Allen Stanley and Elizabeth Electa. Fifth. I will to my sister Elizabeth J. Mack during the term of her • natural life the use of all my property, the principal to be invested by my executors in such a way as to preclude the possibility of a -loss. After the death of my sister Elizabeth J., Allen-Stanley and Elizabeth Electra, heirs of my deceased brother Allen, are to receive the remainder of their portion as bequeathed to them in 3rd.” Held, that the heirs of the deceased brothers took by implication the share given to the parent, and that the sister Mrs. Mack took one-third of the estate absolutely and a life estate in the remainder.</p>

<p>Proceedings upon judicial settlement of administrators account.</p>

<p>On a reference of a claim against the estate of a decedent, for improvements made upon a farm during an occupancy of four years, the referee found for the plaintiff for the amount claimed. The original claim did not state that the improvements were rendered upon an agreement to pay any specific sum therefor, or that the account was in any manner or way liquidated. On the trial but slight allusion was made to the alleged improvements, and no evidence given by claimant as to their value or of a claim made for their payment; but the real claim contested was for a promise to pay for the damage or loss of profits sustained by the claimant in surrendering possession of the farm, and not for moneys laid out by the claimant for the purpose of enjoying it. Held, that the referee’s report should be set aside and a new trial granted.</p>

Motion to compel the plaintiff in an action against a town for negligence to give security for costs under section 3271 of the Code.

<p>At the general election held in November, 1893, in a school commissioner district in the county of Niagara, there were three candidates for school commissioner. The Republican candidate received 1,425 votes, including thirty-nine ballots cast by females under the provision of chapter 214 of the Laws of 1892; the Democratic candidate received 1,444 votes, including seventy-nine ballots voted by females. The Republican candidate appeared before the inspectors of election and protested against the counting or allowing the votes cast by the females upon the ground that they were invalid, because the statute under which women were permitted to vote (Laws 1892, chap. 214) was unconstitutional. The inspectors of election canvassed the votes as cast and certified the returns as required by statute. Held, that an application by the Republican candidate for a mandamus, under section 133 of chapter 680 of the Laws of 1892, to compel the inspectors of election to correct the canvass by striking out the votes given by the women, should be denied.</p>

Appeal by defendants from a judgment for plaintiff which was entered on the report of a referee. Action to restrain the maintenance and operation of defendants’ elevated railroad in the street in front of plaintiff’s premises, and to recover for past damage to the rental value thereof.

<p>Appeal from a judgment for plaintiff rendered in the District Court in the city of New York for the first judicial district.</p> <p>Action by the beneficiary to recover the sum which defendant, pursuant to the terms of its policy of life insurance, agreed to pay upon the death of the insured.</p>

This is an appeal by the defendant from a judgment entered on a verdict directed by the court in favor of the plaintiff and against the defendant for the sum of $1,400.

<p>Appeal from an order made by the trial justice setting aside dismissal of complaint and ordering a new trial.</p>

<p>Appeal from judgment entered on order sustaining demurrer to counterclaim.</p>

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

<p>Appeal from judgment rendered by the trial judge dismissing complaint.</p>

<p>Appeal from judgment rendered by the trial judge on trial without a jury.</p>

<p>Appeal from judgment entered on verdict of jury directed by trial judge in favor of plaintiffs.</p>

<p>Appeal from judgment entered on verdict in favor of plaintiffs.</p>

<p>Appeal from judgment entered on verdict in favor of defendant.</p>

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

<p>Appeal from judgment entered on verdict in favor of the plaintiff.</p>