Volume 51 — New York Miscellaneous Reports

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

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

<p>Brokers — Compensation — Bight to compensation — Employment by person sought to be charged.</p> <p>Where a broker, acting under the instructions of the tenant of certain real estate whose lease contains an option to purchase, gives notice to the owner that the option will be exercised, and the owner refuses to convey until advised that she is bound to do so by her counsel, and no employment of the broker by the owner is alleged or proved, he is not entitled to recover from the owner commissions upon the sale and a judgment in his favor therefor will be reversed.</p>

Appeal by tbe plaintiff from a judgment of the City Court of the city of New York, in favor of the -defendant, dismissing the complaint.

Appeal by the plaintiffs from a judgment of the City Court of the city of Mew York, rendered in favor of the defendant, dismissing the complaint.

<p>Brokers — Compensation — Performance of duty by broker—Proposals subject to final negotiations.</p> <p>In an action by a broker to recover Ms commissions for selling certain real estate, where it appears that the defendant gave to plaintiff a price at which he would sell and the plaintiff, having found a purchaser at a lower price, brought the parties together and their interview resulted in the defendant signing a paper, upon receiving a deposit of money from the purchaser, in which the price that defendant would take was stated and it was stated that there were two mortgages upon the property and, after providing for the manner in which the greater part of the purchase price should be paid, it stated, “ balans mts vil be agreed by contract ” and named a day when the contract should be closed; and where it appears that on the day named the parties failed to sign a contract, for reasons in respect to which there is a conflict of evidence, and the written instrument signed upon the receipt of the deposit was indefinite and uncertain in its terms and left material portions of the proposed final contract open to future agreement, the minds of the parties never met, no sale was ever made that could serve as a foundation for a claim to commissions on the part of the broker, and a judgment in his favor therefor should be reversed.</p>

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

<p>Carriers — Carriage of passengers — Liability for personal injuries to passengers — Contributory negligence of passenger — Care required while en route — Standing on running bodrd.</p> <p>A passenger who, while standing upon the running board of a crowded car, is thrown therefrom by the sudden starting of the car and injured is guilty of contributory negligence.</p>

<p>Appeal by the defendant from a judgment of the City Court of the city of New York, entered in favor of the plaintiff after a trial before the court without a jury.</p>

<p>Landlord and tenant — Rights, duties and liabilities in regard to premises — Repairs — Covenants and agreements as to repairs — By lessee.</p> <p>Where premises leased for the purpose of a saloon are not supplied with a water meter arid sinks they are not included within "a clause of the lease requiring the tenant to put in good order and keep in repair the demised premises and he is not liable for the expense of putting them in although he covenants to pay the water tax in case a meter is installed upon the premises.</p>

<p>Municipal Courts — Jurisdiction — Defenses — Fraud.</p> <p>Fraud is always available as a defense to an action brought in the Municipal Court of the city of New York upon a written contract.</p> <p>A tenant who never went, into possession is entitled to show io defense of an action for rent brought in the Municipal Court of the city of New York that the lease did not cover the apartment contracted for and that plaintiff’s agents fraudulently inserted “ West ” for " East ” before “ apartment ” and that she did not discover the fact until after the delivery of the lease.</p>

<p>Pleading — Evidence admissible under the pleadings — In general.</p> <p>Where, in an action for .personal injuries to a pedestrian on the sidewalk in front of defendant’s theatre by the falling of a section of a ladder from the building, defendant’s answer admits the allegation of the complaint that he was in possession of and occupied the premises with the buildings thereon, evidence that a portion of the building was occupied by a tenant who used wooden ladders therein is inadmissible.</p>

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

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

<p>Carriers — Statutory penalties enforceable against carriers—Liability to penalty for refusing transfer ticket.</p> <p>Street railways — Operation — Statutory regulation — Fares.</p> <p>A recovery in an action for refusal to give a street railway passenger a transfer can be sustained only upon strict proof of the violation of the statute, and proof, simply, that the plaintiff asked for and received a transfer does not justify a recovery if the transfer is not good in the direction she desires to travel.</p>

<p>Account stated — What constitutes—Effect of retaining account rendered ■without objection—Account rendered long afer transaction.</p> <p>Frauds, Statute of—Promise to answer for debt of another —New consideration — Necessity.</p> <p>Municipal Courts — Review — General power of appellate court.</p> <p>Appeal — Decision — Modification and correction of errors.</p> <p>An account stated may not he based simply on bills made out to the defendant long after the sale of the goods to a corporation and proof that defendant retained them without objection, especially m face of the fact that bills therefor had been rendered to the corporation at the time of the sale.</p> <p>A promise to pay the debt of another must he supported by a consideration.</p> <p>Where, under defendant’s answer, plaintiff is entitled to judgment for a certain amount, the inadvertent' error of the trial justice in dismissing the complaint may he rectified on appeal by modifying the judgment.</p>

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

Appeal by the plaintiff from a judgment in favor of the defendant, dismissing the complaint rendered in the Municipal Court of the city of New York, twelfth district, borough of Manhattan, and from an order opening the default.

<p>Appeal by the defendants from a judgment of the city Court of the city of New York, Trial Term, rendered in favor of the plaintiff.</p>

<p>Accord and satisfaction — Payment of less sum than due — Application of rule to disputed demands.</p> <p>Where defendant delivered to plaintiff a check, for less than tlv amount of its claim for work and materials, across the face of which was written “ Account in full to date ” with a voucher to be receipted and returned to it and plaintiff had the check certified and kept it about two weeks and then returned it- to defendant whose treasurer told plaintiff’s representative that he would keep it until he sent for it, that it belonged to him; and where the check remained in defendant’s possession for about three months when plaintiff’s representative called on defendant and said he had come to make a settlement, whereupon defendant’s treasurer said he had a check that belonged to plaintiff and gave him the same check, which he carried away with him, and on the same day wrote defendant that he had forwarded the check to plaintiff with instructions to credit it to defendant’s account and would await their advice about proceeding to collect the balance, to which defendant made no reply, and on the following day plaintiff cashed the*check; held that this transaction did not constitute an accord and satisfaction.</p>

<p>Master and servant — Master’s liability for injuries to servant—Actions— Pleading — Sufficiency in general.</p> <p>Bill of particulars — When authorized—Actions for negligence.</p> <p>Where, in an action to recover for personal injuries, the complaint states that the action arose from defendants’' negligence in failing to warn plaintiff of the danger in operating a certain machine; in failing to provide a safe place to work and safe, proper and suitable machinery and appliances; in that the" machinery was unsafe, improper and out of repair and unprovided with proper appliances for safety; in that defendants failed to employ competent superiors and to comply with the laws applicable to factories and to use the care imposed by law by reason of the character of the work; and that defendants knew of plaintiff’s inexperience and the dangerous machinery, its unguarded condition and the insecure and dangerous place to work; and where defendants moved, under the provisions of section 546 of the Code of Civil Procedure, that the complaint be made more definite and certain in the respects enumerated, e. g. the dangers in operating the machine, the respects in which defendants failed to provide a safe place to work and other like particulars, held that the defendants might move for a bill of particulars but had mistaken their remedy in the present motion which should be denied.</p>

<p>Appeal from an order of the City Court of the city of Mew York, Special Term, denying a motion made by the receiver to compel the plaintiff to refund certain moneys' and from an order denying a motion for a resettlement.</p>

<p>Costs — Costs on appeal—Amount and items. ■</p> <p>Where an order granting a new trial to the defendant for newly discovered evidence is reversed on appeal, with costs, the plaintiff is not entitled to tax costs for making and serving case on appeal, nor costs for the case being over fifty folios, nor three term fees for the motion for a new trial, where the ease was made by the defendants and the motion was on the calendar for one term only,</p>

Appeal by the plaintiff from an order of the Municipal Court of the city of New York, fourth district, borough of Manhattan, denying plaintiff’s motion.

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

<p>New trial — Grounds — Newly discovered evidence — Nature and suffi ciency of evidence discovered.</p> <p>A motion by plaintiff for a new trial upon the ground of newly discovered evidence should be denied, in a case where the plaintiff had failed to recover the price of certain steel bars because they were shown to have been smaller than ordered, where the plaintiff expressed no surprise at the trial respecting the proof of the size of the bars, and where the newly discovered evidence consists of the result of measurement of the bars since the trial, which does not show the bars to have been of the size ordered, 11/32 of an inch in thickness, but only that they were over 10/32 and were what was commercially known as 11/32, and an alleged admission by defendant, which he denies and which does not accord with his testimony given upon the trial and seems improbable.</p>

Appeal to review the proceedings before a justice of the peace which resulted in the conviction of the defendant of “ assault,” and in his receiving a sentence therefor of imprisonment in the Onondaga County Penitentiary.

<p>Motiow for a peremptory writ of mandamus.</p>

<p>Motion to cancel a notice of pendency of action by depositing a sum of money or giving an undertaking.</p>

<p>Lis pendens — Commencement and pendency of action and notice — Cancellation of notice — Grounds — Pleading.</p> <p>A motion to cancel a notice of pendency of action on depositing money or giving an undertaking, in an action brought by a tenant to set aside a surrender of Ms lease, on the ground that it was induced by fraud, and to be restored to the possession of the demised premises, should be denied.</p>

<p>Service of papers — Manner of service — Service by mail — When complete.</p> <p>Service by mail is complete when the paper served is deposited in the post office; and service of a demurrer, forty days after the answer and return to an alternative writ of mandamus was received by mail, the day following its service, is too late.</p>

<p>Motion to set aside a judgment entered upon the decision of a referee.</p>

<p>Costs — Costs on appeal — Right to costs and authority to award — Appeal from County Court.</p> <p>Where, upon an appeal by defendant from each and every part o£ a Justice’s Court judgment, a judgment of the County Court sets aside and vacates an attachment issued in the action by the justice with costs and disbursements and, as so modified, affirms the judgment and upon a further appeal by plaintiff the Appellate Division affirms the County Court judgment in its entirety, with costs, the defendant respondent is entitled to the usual costs upon an appeal from a judgment.</p>

<p>Motion by the plaintiffs for a review of the taxation of the bill of costs in this action.</p>

Motion by the plaintiff to compel one Rudolph L. Blumenthal, the purchaser, to complete his purchase of premises known as Ho. 117 Seventh street, borough of Manhattan, New York city.

<p>Trade marks and trade names — Infringement and unfair competition.</p> <p>The use of the trade name “ New York Frame and Picture Co.” or “ N. Y. Frame & Picture Co.” may not be restrained at the instance of the United States Frame and Picture Company.</p> <p>The use by defendant, lately an employee and officer of the plaintiff, upon opening a place of business of his own, of stationery and advertising cards which were so closely similar as to be a deceptive imitation of those of the plaintiff, and the publication of notices of removal, so ambiguous in phrasing as to lead the unwary to believe that reference was made to the plaintiff and not to the defendant, constitute unfair competition and may be restrained.</p> <p>Advertisements by defendant, containing no misleading or ambiguous references to removal and to previous location and not imitative in style or printing of plaintiff’s advertisements, constitute fair competition.</p>

Action by the drawee of a draft against the holder thereof, to whom the same had been paid, upon the latter’s implied guaranty of the genuineness of the signatures of the antecedent indorsers.

Action to cancel certain deeds to real property situated in New York city and in Bellport, H. Y., executed by plaintiff to her husband.

Action by plaintiff in equity to recover the full value of its rights to a pier and for damages and to restrain the continuance and completion of certain improvements.

<p>Contracts — Performance of contracts — Rights accruing on partial performance — Entire contracts.</p> <p>Municipal corporations — Contracts — Authority to contract — Party contracting with municipal corporation bound to know extent of authority.</p> <p>In an action against the city of New York by a contractor for damages for its refusal to permit him to enter upon and fulfill a contract which comprehended street paving, for which the municipal authorities might lawfully contract, and certain repairs and improvements to sidewalks which, for want of the proper proceedings, they were not authorized to contract, where the contract refers to the work, everywhere in the instrument, as the whole work to be performed and is an entire contract, held, that the plaintiff was bound to know the extent of the authority of the municipal officers and cannot recover.</p>

Taxpayer’s action to recover, in behalf of the town of Saratoga Springs, moneys of the town alleged to- have been wasted and misappropriated by the defendants as town officers.

Action by plaintiff as trustee to obtain the direction of the court regarding the distribution of trust funds created under the twenty-first clause of the will of Gardiner G. Howland, deceased. • 1

<p>Action for the construction of a will. The opinion states the case.</p>

<p>Action for the construction of a will. The opinion states the case.</p>

<p>Wills — The testamentary instrument or act — Revocation — Right to revoke, how accomplished — Cancellation.</p> <p>Where a paper offered for probate as a will of a deceased person came directly from the safe of the decedent and there are no grounds to suspect that it has been tampered with and the signature is canceled by pen marks and below it in decedent’s handwriting are the words “ Am going to make a new will and where several important changes in the family of decedent have occurred since the paper was drawn, it will be presumed the will was revoked and probate will be denied.</p>

Petition for the appointment of commissioners to determine the damages to which petitioner is entitled by reason of a change of grade of Center avenue in the city of New Rochelle.

<p>Certiorari — When the writ lies — Proceedings of hoard of health — When not reviewable.</p> <p>Health — Health boards and sanitary officers — Liability of board and individual members.</p> <p>The action of the department of health of the city of New York, in preventing one from carrying on the business of selling milk in said city, although it may involve the exercise of judgment and discretion, is not a judicial determination and, in the absence of statutory authority, is not reviewable by certiorari.</p> <p>The statutory right to carry on the business of selling milk is, in the interests of public health, subject to the exercise of the police power of the State.</p> <p>Where, as a matter of fact, the public health is not imperiled by the manner in which one carries on the business of selling milk, the summary action of a board of health in preventing the owner of such business from carrying it on cannot make it so; and interference by the board with such business subjects its members to the same perils and liabilities as an individual who interferes with a lawful business.</p> <p>It seems that, if the party proceeded against by the board of health established a clear legal right to carry on such business without interference, mandamus would lie to compel the board of health to issue the necessary permits.</p>

<p>Constitutional law — Provisions relating to municipalities and political boards and divisions — Formation of senate and assembly districts.</p> <p>Mandamus — Mandamus against public officers — Apportionment into election districts.</p> <p>The greater part of the population of Erie county being within the city of Buffalo, which is divided into blocks and whose general geographical situation, as well as that of the towns of said county, admits of substantially equal apportionments of assembly districts as regards population, a discrepancy of over 6,000 in two contiguous assembly districts in the same senatorial district renders the apportionment void, as in violation of the constitutional provision (Const, art. 3) § 5)* which requires the division of counties entitled to more than one assemblyman into districts “as nearly equal in number of inhabitants, excluding aliens, as may be¡”</p> <p>Of two proposed assembly districts wholly within the city of Buffalo, one has thirty sides and is between five and six miles in length with a width, in many places, of less than a quarter of a mile; the other district follows in a general way the northerly line of the first-mentioned district, has thirty-one sides, the ends of which divide five wards of the city, and. its lines run in a half circle about the northerly portion of the said first district. Held, that an apportionment resulting in such districts is void as in .violation of the constitutional requirement (Const, art. 3,</p> <p>§ 5) that assembly districts should be “ in as compact form as practicable ” as, by reason of the city blocks, there is great facility for a proper and compact adjustment.</p> <p>Under the Constitution of 1894 (art. 3, § 5, last par.), proposed apportionments," either by the Legislature as regards senatorial districts, or by boards of supervisors or kindred bodies as regards assembly districts, are reviewable by the courts at the suit of any citizen; and such cases are entitled to preference over all others and the courts are required to convene promptly,' if not in session, for the disposition of the same.</p> <p>Mandamus lies to compel the reconvening of the board of supervisors for the purpose of making a lawful and constitutional apportionment of the county into assembly districts.</p> <p>The Constitution providing that each assembly ' district must be wholly embraced within a senatorial district, there can be no-valid assembly district unless there is a pre-existing legal senatorial district.</p>

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

<p>States — Actions — Against State — The People of Porto Rico.</p> <p>The People of Porto Rico, a body politic created by the Act of Congress (Act of April 12, 1900, eh. 191), although possessed of limited and subordinate governmental powers, nevertheless possesses sufficient of the qualities of sovereignty to exempt it from liability to the process and jurisdiction of the courts of this State.</p>

<p>Motion to continue preliminary injunction pendente lite.</p>

Action by a judgment creditor to reach the interest of a judgment debtor in a fund in the hands of a trustee, to the income of which a third person was entitled for life and to the principal of which the judgment debtor was entitled upon the death of the life tenant.

<p>Motion to dissolve preliminary injunctions obtained by plaintiffs against defendants in taxpayers’ actions.</p>

<p>Depositions — Depositions on commission — When allowed — Not refused because witnesses might plead privilege.</p> <p>In an action by the State Commissioner of Excise against the holders of a liquor tax certificate, authorized to sell liquors only upon the written prescription of a regularly licensed physician, and their surety, to recover the penalty of the bond given on issuing the certificate for having sold an article called Peruna which is claimed by plaintiff to be a liquor within the meaning of the Liquor Tax Law (L. 1896, ch. 112), an application by plaintiff for a commission to take the testimony of witnesses in Ohio as to the ingredients of the article will not be refused upon the defendants’ objection that the formula is a trade secret and the relation of the witnesses to the manufacturer is confidential, but it should be left for the witnesses to plead their privilege and the question of their rights and privileges and what evidence may be suppressed or deemed privileged must be passed upon later and in some other proceeding.</p>

<p>Abatement and revival — Revival or continuation of suits—Proceedings to revive or continue suit — Laches.</p> <p>Where, in an action upon a promissory note brought more than fifteen years ago, there has been great delay in its prosecution, arising from the acts of both parties combining with events which neither could control, a motion to permit the action to proceed against the representative.of one of the defendants who' has died' should be granted.</p>

<p>Dismissal — Grounds and defenses — Failure to proceed.</p> <p>Where, in an action brought more than twelve years ago upon a ■contract made nearly twenty years before, one of the defendants was never served with process and died ten years after the suit was brought, and it appears that, after several postponements of the trial of the issues arising upon the answer of the other defendant, for a period of nearly eight years, neither party moved the case or took any proceedings therein, when plaintiff’s attorney requested the defendant, whose attorney had died, to have another one appointed and the cause was placed upon the Trial Term for September, 1905, when the failure to serve process upon the other defendant was discovered, and where no excuse is shown for the delay of eight years when nothing was done, a motion of the defendant who answered to dismiss the complaint for failure to prosecute the action should be granted.</p>

<p>Costs — Costs on appeal—Costs to abide event.</p> <p>Where, upon an appeal to «the Appellate Division by the defendant from a judgment against him, the judgment was reversed with costs to the appellant to abide the event and, after a subsequent trial resulting in a judgment for defendant, the Court of Appeals reversed that judgment and granted a new trial with costs to abide the event, and on' a third trial the plaintiff recovered judgment, he is not entitled to tax the costs of the appeal from the first judgment.</p>

<p>Motion by. defendant to vacate and set aside execution..</p>

<p>Judicial sales — Grounds for refusing to complete title, etc.— Nonjoinder of parties.</p> <p>Where the purchaser upon a partition sale objects to the title on the ground that heirs at law of one Mary Stuart, entitled to undivided interests in the premises, were not made parties to the action, and where four persons, alleged to be children of one William McRae (alleged to have been an uncle of Mary Stuart) and who the referee found were not related to her, were made parties, and it appears from the evidence that William McRae had brothers and sisters who if he had been related to Mary Stuart’s uncle would have been interested in the premises but who were not parties to the suit, held, that the burden rests on the purchaser to show the title doubtful and, in the absence of any proof of relationship between William McRae and the issue of Mary Stuart, a reasonable doubt as to the title has not been raised.</p> <p>Where the second ground of objection was that life tenants and remaindermen under the will of a former owner of an undivided share had not been joined, and it appears that the will created a trust and the executors and trustees, who were made parties, could not carry out its provisions without selling the property, held that an'equitable conversion was effected and the life tenants and remaindermen were not necessary parties to the suit and the objection was not well taken.</p> <p>Where the third ground of objection was that the summons had not been properly served upon two defendants who had been adjudged incompetent and for whom a guardian had been appointed, and it appeared that they were in an asylum in another State and the order of publication did not provide for any service on the guardian or other person on behalf of such defendants, held that the order was defective and service thereunder incapable of conferring jurisdiction and the title was, therefore, unmarketable and the purchaser should be relieved from his bid.</p>

<p>Demurrers to complaint.</p>

<p>Municipal corporations — Actions by and against city — Capacity of boards to sue and be sued — Fulton fire department.</p> <p>The Fulton fire department, the plaintiff, as it existed under L. 1898, ch. 269, went out of existence upon the incorporation nf the city of Fulton under L. 1902, ch. 63, and has not now legal capacity to sue; and a demurrer to the complaint upon that ground should be sustained.</p>

Actioh to have a franchise, granted by the city of Buffalo to the defendant International Railway Company to construct, maintain and operate a street surface railroad in Fillmore avenue, declared to he illegal and void.

<p>Action to obtain continuing injunction.</p>

<p>Buildings — In general — Material, mode of construction and height — Signs.</p> <p>Municipal corporations — Interpretation and effect of ordinances — Ordinance relating to fences, signs and bill boards.</p> <p>The placing of an ordinary commercial sign, fastened in the usual manner, flat against the outside of a building walk by the consent of the owner of a building, is not a violation of section 144 of the New York Building Code which applies only to bill boards and sky signs and requires a permit from the superintendent of buildings for their erection.</p>

<p>Bonds — Interpretation — Surety bond conditioned for repayment of deposits with bank.</p> <p>Principal and surety — Extent and fixing of liability—Interpretation of contract.</p> <p>Where a surety company executes a bond as surety for a bank conditioned that its principal will pay to the obligee, one of the bank’s depositors, “all moneys now deposited or which may hereafter be deposited,” the amount of the deposit then and thereafter being greater than the penalty of the bond, upon the failure of the bank the depositor may maintain an action against the surety to recover the balance due it over and above all amounts paid to it from the assets of the bank in liquidation, the surety not being entitled to have such payments apportioned between the amount of the penalty of the bond and the excess of deposits over the amount of such penalty.</p>

<p>Actios upon contract guaranteeing the payment of dividends upon corporate stock.</p>

<p>Deeds — Lands, tenements and hereditaments granted — Conveyance with reference to way.</p> <p>Easements — Extinguishment and revival — Abandonment or nonuser as extinguishing.</p> <p>Where the owner of a tract of land conveys adjoining parcels and describes them as running to the center line of a street which has not been laid out or opened, one parcel lying on the north side and the other on the south side thereof, and the grantees build a fence along such line and they and their successors in title occupy up to it, neither recognizing the existence of any street, such acts indicate an intention to abandon any rights in the street; and a subsequent owner of part of the lands on the north side of the street whose title runs to the north line of the street cannot, many years after such abandonment, enforce an easement in such street. An intention to abandon the street is consistent with subsequent conveyances which do not recognize the street, and with claims of adverse possession to the bed thereof.</p> <p>Where, after such abandonment, subsequent conveyances of the • property on both sides mention the street and lots are bounded on the center line and north line thereof, the description' by streets is to be taken as an intention to treat them as boundaries only and not as streets in which the parties have easements.</p>

<p>Conflict of laws — Contracts — General principles — Lex loci contractus.</p> <p>Insurance — Forfeiture of policy — In general — Nonpayment of premiums— Necessity of notice for payment of premium.</p> <p>Insurance Law (L. 1892, ch. 690) § 92.</p> <p>A policy of life insurance, purporting to be signed and delivered in the city of New York, which provides for the payment of premiums to the company and the amount of the policy by the company at the home office in that city, after receipt at such office of satisfactory proofs of death, is to be deemed a contract made within the State although the insured resided-in another State.</p> <p>The statute (L. 1892, ch. 6901 § 92, as amd. by L. 1897, ch. 218), forbidding forfeiture of policies within one year from default unless notice has been mailed to the insured at his last known post-office address in this State, is applicable only to persons having a known post-office address in this State.</p> <p>The act of a company in mailing notices to persons insured under its policies residing in other States is not to be taken as a practical construction of the statute by the company, controlling upon it, but as an act of courtesy merely.</p> <p>Section 312 of the Insurance Law requiring notice to the assured applies only to “ stipulated premium ” policies, or to companies incorporated as stipulated premium companies, and is not to be read in connection with section 92 of the Insurance Law or to be taken as extending its provisions.</p>

<p>Negligence — Actions — Eight of action, defenses and pleading—Complaint— Allegations of negligence in general.</p> <p>In an action to recover for personal injuries arising from defects in an oil-tank car, due to want of repair, at a time when the car was in the possession of the defendant railroad company, where the complaint does not show that the defects existed when the car was delivered to the railroad company by the owner which is also joined as a defendant, the complaint does not state facts sufficient to constitute a cause of action against the owner and its demurrer on that ground will be sustained.</p>

<p>Demurrer to complaint.</p>

<p>Action to recover damages for personal injuries. Demurrer to complaint.</p>

<p>Partition: Procedure for partition — Parties — Dowresses — Creditors, lienors, etc.; Decision, judgment and relief—Determination of relative shares — Adjudication upon liens.</p> <p>In an action for a partition of real estate, in which all the parties except plaintiff’s wife are children of the deceased owner who died intestate, the validity of a transfer by the deceased owner individually and as administrator of a deceased son of his interest in a mortgage upon the property, executed by said deceased owner and assigned to such deceased son and his brother, one of the defendants in the partition action, may be determined therein under appropriate and sufficient allegations that such alleged assignment of interest in the mortgage by the deceased' owner was obtained by fraud and undue influence; and the complaint is not demurrable upon the ground of improper joinder of causes of action.</p> <p>The wife of a plaintiff in partition is properly made a party defendant to the action.</p>

<p>Action brought in the Supreme Court to determine title to certain lands on the Cattaraugus Indian Reservation, and for an injunction. The opinion states the case.</p>

<p>Conflict of laws — In general—Regulation of status.'</p> <p>Former adjudication — Adjudication in particular actions or proceedings— Decree of divorce.</p> <p>Several years after a resident of this State had deserted and abandoned his wife, he went through the form of a ceremonial marriage, in New Jersey, with a woman who lived with him until her death and bore him two children; and, after he and the woman and their children had removed to and become permanently domiciled in Michigan, where children born out of wedlock become by law legitimate upon the intermarriage of their parents, he, in an action for divorce against the wife whom he had deserted, the summons in which was served by publication, obtained a decree in his favor upon her default and, subsequently, he and the other woman went through a second ceremonial marriage: There-</p> <p>after, in this State, the deserted wife obtained a decree of separation from her husband and, upon a motion for the sequestration of his property to secure the payment of alimony, he was represented by his attorney. In an action for the construction of the will of the husband’s father who devised a share of his estate to the “ lawful issue ” of his son, held, that the wife’s decree of separation was an adjudication of the invalidity in this State of the foreign decree of divorce granted to the husband; that, notwithstanding such decree, his marriage with defendant was in full force and effect and that tb;e children of the husband by the woman with whom he had lived after deserting his wife were-not his “lawful issue” and were not entitled to take as such, under said will.</p>

<p>Constitutional law — Deprivation of life, liberty, or property, without process of law — What is liberty or property.</p> <p>Mandamus: Mandamus against officers of private corporations — Exercise of corporate powers — Gas companies; Procedure and relief — Peremptory writ in first instance.</p> <p>An act of the Legislature fixing a maximum price for gas above which companies may not charge, when the price will enable a company to earn enough to cover the cost of manufacture and distribution, a reasonable allowance to offset depreciation and cost of changes in machinery and to make good the loss arising from abandonment of portions of its plant and to realize a reasonable profit on the fair value of the property owned and used by it in its business, is not unconstitutional because the price will not enable a company to earn enough to cover also a return on an original capitalization greater than the present value of its property; and an answer to -a petition for a peremptory mandamus to compel a gas company to furnish gas at the price fixed by law, whicli only sets up the failure of the price to cover such items in addition to a return on such an original capitalization, raises no issue of fact to be tried and presents no defense to the application.</p> <p>A denial that the respondent company refused to supply the petitioner with gas is not equivalent to a denial that it refused to supply him at the statutory rate and affords an example of a negative pregnant.</p> <p>In such a case a peremptory mandamus should be granted.</p>

<p>Judgment—Rendition — At particular stages of action — Judgment or demurrer — Decision on demurrer.</p> <p>Where the Appellate Division sustains a demurrer to a complaint which the Special Term had overruled, but gives no direction" for the final or interlocutory judgment, and the clerk enters an interlocutory judgment, simply reversing the judgment appealed from and sustaining the demurrer with leave to amend, no direction for final judgment having been given, a motion by the defendants who demurred, for an order directing judgment dismissing the complaint against them, is proper and should be granted.</p>

<p>Motion under section 3380 of the Code of Civil Procedure to obtain immediate possession of real- estate pending condemnation proceedings.</p>

Objection by property' owners to the qualifications of one of tibe commissioners of estimate and appraisal heretofore appointed in this proceeding.

<p>Issues of law upon demurrers to the complaint, severally interposed. ,</p>

<p>Constitutional law — Provisions relating to courts — Creation of courts — Indian courts.</p> <p>Indians — Courts — Jurisdiction.</p> <p>Courts — Powers — Supreme Court — Affairs of Indians.</p> <p>The act of the Legislature of the State of New York ratifying and confirming the revised constitution adopted by the Seneca Nation of Indians on the 15th day of November, 1898, providing for a Surrogate’s Court in the Seneca Nation, does not contravene the provisions of the State Constitution relating to Surrogates’ Courts, nor the provision that no local bill shall embrace more than one subject and that shall be expressed in its title.</p> <p>An action in equity cannot be maintained to obtain the revocation of letters of administration granted by the Surrogate’s Court of the Seneca Nation on the estate of a member of that nation, the proper remedy when such letters have been improperly issued being by an appeal to the council of the nation under its constitution.</p>

<p>Appeal from a judgment of a Justice’s Court in favor of plaintiff in an action to recover rent.</p>

<p>Municipal corporations-—Contracts — Rights of subcontractors — Liability to subcontractors.</p> <p>Mechanics’ liens — Rights of- subcontractors — Completion by owner.</p> <p>Building and construction contracts: Time and conditions of payment — Conditions of payment — Waiver of conditions; Completion of contract by others than the original contractor — Completion of contract by owner — Rights of subcontractors.</p> <p>Where, in an action by a subcontractor to foreclose a mechanic.’.lien upon funds in possession of the city of New York applicable -to repairs to a public school, the city answers admitting the contract, it cannot afterward object that the contract was with the board of education and that the action should have been brought against that board.</p> <p>Where, under a provision of the contract to that effect, the city-takes possession of the work on its abandonment by the contractor and completes it within the unpaid balance of "the contract price, the contractor or subcontractor may recover such balance, less the cost of completion.</p> <p>Certificates of completion required by the contract before payment are waived where the owner completes the work pursuant to the contract.</p> <p>A lien for work on public improvements is a lien on the fund and does not violate a provision of the contract that the contractor will not permit a lien to be put on the building.</p> <p>Where the work of completion is done by the owner under- the contract it is done for the contractor, and the time within which a notice of lien must be filed runs from the time of such completion.</p> <p>Where by its terms assigning or subletting the contract is prohibited under penalty of revocation or annulment, if the owner is aware of a subcontract and makes no objection at the time nor assumes to revoke or annul the contract, it cannot object after the subcontractor has finished his work.</p> <p>Where the contract is not completed until after the date fixed by its terms and provides that the contractor is to forfeit and pay the city the sum of $10 for each and every day consumed in performance beyond the time fixed in the contract, which sum the city is authorized to deduct as liquidated damages for delay from the amount due the contractor, in the absence of proof ol any damage the city is not entitled to a claim for liquidated damages as a defense to the foreclosure of plaintiffs’ lien.</p>

Action for an injunction restraining tie State Commissioner of Excise and the comity treasurer of Broome county from proceeding to the plaintiff’s prejudice under a vote of the electors of the town of Union upon the question of local option.

<p>Motion in arrest of judgment. The opinion states the case.</p>

<p>Proceedings under a writ of habeas corpus.</p>

<p>Application for an order directing the issuance of a writ of mandamus for the purpose of testing the constitutionality of the Apportionment Act of 1906. The opinion states the case.</p>

<p>Motion for reargument upon an application for a writ of peremptory mandamus.</p>

<p>Electricity — Rights in streets — Subways.</p> <p>Corporations—Forfeiture of charter — Necessity of proceedings to enforce forfeiture; Effect of forfeiture of charter — On franchises and contracts.</p> <p>Mandamus: Mandamus against officers of private corporations—Exercise of corporate powers — Telegraph and electrical subway company; Procedure and relief — Peremptory writ in first instance.</p> <p>Where, upon an application for a peremptory mandamus directing the Consolidated Telegraph and Electrical Subway Company to accord to the petitioner space in its subway ducts for certain electrical conductors, it appears that the petitioner has complied in all respects with the rules and regulations laid down for such application and has furnished to the subway company and to the court copies of the documentary evidence showing its title to a franchise; and where the allegations of the petition are explicit, in detail and the answering affidavits contain, for the most part, denials of knowledge or information sufficient to form a belief, or denials which upon their face are merely statements of the conclusions of the answering party and do not traverse the facts but simply raise questions of law and deny the legal effect ot the instruments set up by the petitioner while not denying or controverting their execution, such answering affidavits raise no issue of fact such as would prevent the issuance of a peremptory writ of mandamus; and where no suggestion is made of any reason of public policy for denying the application nor that public interests will be prejudiced thereby, a peremptory mandamus should be granted upon proper conditions.</p> <p>It is no objection to the granting of the mandamus that the relator has not yet applied to the commissioner of water supply, gas and electricity for his consent to place the conductors, as the rules and regulations do not contemplate the giving of consent by the commissioner until space has been assigned for conduits underground.</p> <p>Interests by way of franchise are independent of the life of the original corporation to which they are granted and are transferable as property by means of judicial proceedings and otherwise.</p> <p>Notwithstanding the failure of a corporation to organize and do business, where no action has béen taken to dissolve the corporation or forfeit its franchise, and the franchise is not forfeited by the city because of any terms of the agreement itself, the franchise remains effective.</p> <p>Section 13 of Iv. 1905, chap. 737, prohibits certain corporations from transferring or leasing their franchises without the consent of the commission of gas and electricity, but does not prohibit a transfer by an individual.</p>

<p>Application for peremptory writ of mandamus.</p>

<p>Motion to vacate a warrant of attachment.</p>

<p>Brokers — Compensation — Performance of duty by broker — Conditional offers or agreements.</p> <p>Brokers, employed to sell a hotel upon certain terms, who effect a contract for a sale conditioned upon the assent of the vendor’s landlords .to an assignment of their leases which the landlords refuse to give, by reason of which the sale is not made, are not entitled to commissions.</p>

<p>Action to recover a tax.</p>

<p>Nuisance — Nature of public and private nuisances and liability therefor— Special damage.</p> <p>Street railways — Street railway companies, their franchises and right to use of streets — Extensions, additional tracks, etc. — Increasing speed and number of trains.</p> <p>Former adjudication—What matters are concluded — Matters necessarily involved — Interference with easements in abutting owner’s action.</p> <p>To entitle a person to maintain an action to abate a public nuisance he must show that he has thereby, sustained some special damage of a substantial nature.</p> <p>Where a railway company has acquired by release and conveyance the right to maintain an elevated structure with three tracks in front of plaintiff’s premises and operate trains thereon as the same was constructed, maintained and operated at the time of such conveyance, since it is the duty of the company to run trains as rapidly and frequently, consistently with public convenience and safety, as the construction of its road and rolling stock will allow, in the absence of proof that an increased speed is unusual, extraordinary and detrimental to public health and safety, no special injury nor damage to plaintiff may be predicated upon an improved service which comprehends an increase in the number and speed of its trains.</p> <p>Where, in an action brought by the plaintiff’s predecessor in title, in which he had recovered the usual abutting owner’s judgment against the defendant corporation, it was found, among other things, that the only interests or property rights of the plaintiffs in said street taken, appropriated or interfered with by the defendant were the easements of light, air and access in and over the street in front of their premises; an increase in the number and speed of the trains in front of plaintiff’s premises would not constitute a legitimate cause for grievance on her part for which she might assert an injury and consequent damage.</p>

<p>Building and construction contracts — In general — Contractors and subcontractors — Liability of owner and contractor to one furnishing materials to subcontractor.</p> <p>The contract, under which plaintiffs erected certain buildings for the United States government, contained a provision that no interest therein should be transferred -by the contractor and a transfer thereof should work an annulment so far as the United States was concerned; the contractor made a subcontract for painting and the subcontractors bought materials from the plaintiffs for the work; held that the provisions of the Federal statute relating to bonds by contractors, that the contractors would make payments to all persons supplying them with labor and materials in the prosecution of the work provided for in the contract, and the fur-</p> <p>ther provision, that any person who has furnished labor or materials for which such contractors shall fail to pay shall have a cause of action in the name of the United States against said contractors and said surety for the amount due him for such labor and materials, do not apply to the plaintiffs who did not furnish materials to the contractor nor to any one who had acquired his rights as against the United States government.</p> <p>In such a ease an action of interpleader, by the contractor against the subcontractor and the person furnishing materials to the latter to determine the ownership of the unpaid balance of the contract price for the work done by the subcontractor, cannot be maintained, as the amount is due by plaintiffs to the assignee of the subcontractor and the person who furnished the materials has no claim thereon.</p>

<p>Street railways — Construction, maintenance and equipment — Restoration and maintenance of street and pavement—Extent of surface required to be kept in repair.</p> <p>Section 98 of the Railroad Law (L. 1890, ch. 565), which requires every street surface railroad corporation using a street, avenue or public place in any city or village to keep in permanent repair that portion of that street, avenue or public place between the rails of its tracks and two feet in width outside of its tracks, means a strip two feet in width outside of its tracks on each side thereof.</p>

<p>Demurrers to complaint.</p>

<p>Limitation of actions — Disabilities and exceptions — Suspension in general — Prior action—Same cause of action.</p> <p>Insurance — Actions on policies—Provisions requiring action within specified time — Subordinate to statutory provisions.</p> <p>Pleading — Matters relating to pleadings generally—General rules — Surplusage.</p> <p>Judgment — Rendition — Kind and amount of relief granted — Conformity to pleadings.</p> <p>Costs — Persons liable for or entitled to costs — Liability based on wrongdoing generally.</p> <p>The manifest purpose of section 405 of the Code of Civil Procedure was to permit a party, who, through technical error or a mistake in the form of the remedy employed, had been unable to present the real merits of the controversy in the first action, to pursue his real right under a more appropriate form of action.</p> <p>An action, brought upon a policy of insurance, to recover the amount awarded upon an appraisal of the amount of loss under its terms, is' brought for the “ same cause ”, within the meaning of section 405 of the Code of Civil Procedure, as a previous action in which fraud in the appraisal was alleged, and the plaintiff sought to recover the face of the policy, but which was brought too soon to entitle him to recover in case he failed to establish such fraud.</p> <p>The provisions of section 414 of the -Code of Civil Procedure relate only to rules of limitation and do not take away from the plaintiff the benefit of the provisions of section 405.</p> <p>Neither does the short limitation contained in the policy take away the plaintiff’s right under section 405, but it is to be construed as though it contained an exception in favor of cases provided for in that section.</p> <p>The scope of the present action being such as to permit a recovery of the amount of the award in case of failure to establish the fraud alleged, and the plaintiff having failed to establish fraud, judgment should be rendered in his favor for the amount of the award, but without costs. -</p>

<p>Special proceeding instituted by writ of habeas corpus to inquire into the'cause of the relator’s detention.</p>

<p>Pensions—Intention of government as to use — For future support. Insane persons—Property and liabilities of incompetents — Liability of estate for debts and claims — Liability to pay for support from pension moneys.</p> <p>Pension moneys are intended to provide' for the future support of those who have a claim upon the. nation’s bounty, without being subject to past claims for their support.</p> <p>Accordingly, the committee of an incompetent person should be directed to pay the State hospital, at which such person is supported and maintained, her pension, to1 apply upon its current charges therefor, but not to apply upon arrears that existed at the time the first pension moneys were received by the committee.</p>

<p>Municipal corporations — Police department — Power oí board to change assignments ■ to duty.</p> <p>Charter of the city of Buffalo (L. 1891, ch. 105) §§ 187, 191, 192, 200.</p> <p>The power to detail patrolmen for detective duty in the city of Buffalo and to revoke such details is vested exclusively in the superintendent of police; and an application for a peremptory mandamus, commanding the police board of that, city to reinstate the relators as detective sergeants, will be denied.</p> <p>Whether the provisions of the charter of the city of Buffalo that members of the police force shall be liable to reduction in rank only upon charges and after a hearing is applicable to a revocation by the superintendent of police of a detail of patrolmen for detective duty, which gives them during the time of such detail the rank and pay of sergeants, qumre.</p>

<p>Election of officers: Nominations, etc. — Independent nominations —</p> <p>Form and sufficiency of certificates, Review by court — Time within which review may be had.</p> <p>Separate sheets, containing a certificate of nomination and signatures thereto, together constitute but a single certificate; and the fact that some of them were delivered to the commissioner of elections on one day and the rest the day following, which was the last day for filing such certificates, does not render the, certificate invalid.</p> <p>Where assembly certificates, when originally filed, did not contain the name of the office, as required by section 56 of the Election Law (L. 1896, ch. 909), they were defective only and not wholly void; and the committee appointed on their face to supply defects, fill vacancies, etc. could supply such defect.</p> <p>The places of residence which the subscribers of such a certificate respectively add to their signatures are conclusive; and, where it appears upon the face of the certificate that the place of residence of a subscriber is outside the district, the commissioner should reject his name and may not resort to extrinsic evidence to establish the fact that he resides in the district.</p> <p>Undecipherable and illegible signatures should be rejected, although the commissioner of elections may use the notary’s certificate to aid him in reading them; and illiterate electors should sign by a mark, properly authenticated.</p> <p>Where sheets of two certificates for separate offices are joined together, the signatures being the same on each, it should appear from the notary’s certificate that persons who subscribed both certificates appeared and made oath before such officer as to each certificate. Mere identity of names on both certificates is not sufficient evidence that both were properly authenticated, where the notary’s certificate refers to “ the foregoing certificate ” only and there is but one notary’s certificate.</p> <p>After the time for filing certificates • to fill vacancies has expired, the jurisdiction of the court to entertain summary proceedings to review the determination of the commissioner has terminated and it will not entertain a proceeding to determine whether certificates are void, or only defective, when the time to correct defects has gone by.</p> <p>This is a review under the Election Law of the decision of the commissioner of elections that such certificates are valid, and overruling objections made thereto.</p>

<p>Appeal from a decision of the board of elections of the city of blew York under section 56 of the Election Law.</p>

<p>Election of officers — Nominations, etc. — Independent nominations — Form and sufficiency of certificate.</p> <p>In a certificate of independent nomination of candidates for office, among whom are candidates for assemblymen in specified districts of Kings county and a candidate for senator in the eighth district, where 792 signatures are followed by the street address by number-of the elector and the word “Brooklyn” or a ditto mark under the word “ Brooklyn ”, as to the remaining signatures, where the street and house number is given but not the city or borough, though the electors have made oath, as required by law, that they are duly qualified electors of the district for which the nominations are made, held, that there is a sufficient statement of the fact that, the street named is in the borough of Brooklyn.</p> <p>Nor is the certificate, to be rejected because the districts of all the candidates are not coterminous and every elector who subscribes it may not therefore vote for all the officers named therein.</p> <p>Nor is the certificate to be rejected because it consists of several sheets or because it names candidates for several offices.</p>

<p>Libel and slander — Pleading—Answer—Immaterial and irrelevant averments.</p> <p>Bill,1 o£ particulars—When authorized — Action, for libel or slander.</p> <p>In an action for libel, for the publication in defendants’ periodical of alleged false statements concerning the ingredients of a proprietary medicine, brought by the owner of the compound who alleged that such statements injured him in his business and reputation and in the reputation of such compound, where the defendants set up, not as a partial defense and in mitigation of damages, but as a separate answer and defense, that they published the article complained of for the¡ public good, believing it to be true; that plaintiff published certain advertisements in other periodicals (but without alleging that the defendants or the writer of the article knew of them at the time of publishing the alleged libel); that they intended to show that the compound does not cure the diseases mentioned in such advertisements, particularly paralysis; and that plaintiff had been guilty of a fraud in making a claim that it did; held,, that these allegations did not constitute a defense and should be stricken out as irrelevant and redundant.</p> <p>And where in such an action the defendants do not plead a justification nor allege that the compound is made up of the ingredients mentioned in the alleged libel, a motion for a bill of particulars, stating what ingredients the compound did contain om certain dates prior to the publication of the libel, will be denied.</p> <p>And, where the demand for damages is general and there are no allegations of special damage, the plaintiff will not be required to state the names and residences of customers and patrons alleged to have been induced to cease purchasing and using the compound; and a motion for such particulars will he denied.</p>

Suit, to enjoin defendant from operating its railroad upon a sixty-six-foot strip of land adjoining plaintiffs’ premises in the city of Yonkers, from encroaching upon plaintiffs’ property west of said strip of land and from operating its railroad so as to constitute a nuisance.

Action to recover a share in the surplus proceeds of the sale of the real property of a deceased person and accumulated rents therefrom. This controversy has arisen over the provisions of the' “ Second ” and “ Third ” paragraphs of the will, folios 8; to 12 of complaint, which read as follows: “ Second. I give, devise and bequeath unto my beloved wife Bedelía M. Oreegan,.

Action for a judicial construction of the will of Lewis H. Morgan, deceased, and to recover for his next of kin the residuary estate bequeathed to the trustees of the University of Rochester, on the ground that such bequest is void.

<p>Insane persons — Actions — Leave to sue lunatic — Necessity. •Executors and administrators — Accounting and settlement — Procedure to obtain accounting — Action for accounting — Eetention of cause already in Supreme Court.</p> <p>Where the citation to attend the judicial settlement of the accounts of an executor and testamentary trustee in which an'-incompetent- is interested was duly served upon him and upon his committee appointed by the Supreme Court, and the committee appeared in the proceeding by counsel, the decree entered therein is valid although permission to make the incompetent a party to the accounting and leave to serve him were not obtained from the Supreme Court.</p> <p>Where the executrix of a person judicially declared to be an incompetent, thirteen years after the entry of a decree judicially settling the accounts of the executor and trustee of his father’s estate, to which proceeding the incompetent was made a party, his committee appearing and answering therein, brings an action in the Supreme Court against said executor and trustee to recover income bequeathed to her testator by defendant’s testator, upon an allegation that defendant wrongfully retained and applied said income in payment of her testator’s alleged invalid debt to his father, and, aside from a prayer for relief against said decree, the complaint asks for an accounting by defendant as executor and trustee since his accounting in the Surrogate’s Court, this court will decline to exercise its jurisdiction and will dismiss the complaint upon the ground that full relief may be had in the Surrogate’s Court.</p>

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

<p>Justices of the Peace — Appeal and error — Determination and disposition of cause — Affirmance — Notwithstanding error in granting attachment.</p> <p>Attachment — Vacation or discharge of attachment — Effect of judgment as terminating attachment.</p> <p>Where, in an action brought in justice’s court, the summons was accompanied by an attachment and was personally served upon defendant who, upon a denial of his motion to vacate the attachment for the insufficiency of the affidavits upon which it was granted, appeared generally and answered the complaint and judg ment was rendered against him for a sum of money only, the appellate court upon appeal must affirm the judgment which supersedes the attachment although the attachment was erroneous and although the appellant appeals from that part of the order and judgment denying his motion to vacate the same.</p>

Appeal by the defendant from a judgment and two orders, of the Municipal Gourt of the city of New York, fourth district, borough of Manhattan, rendered in favor of the plaintiff.

<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.</p>

<p>Appeal by defendant from judgments of the City Court of the city of New York in favor of the plaintiffs.</p>

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

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

<p>Municipal Courts — Procedure — Parties — Defect of parties plaintiff. Parties — Plaintiffs — One or more suing for benefit of all Code of Civil Procedure, § 448.</p> <p>The provisions of section 448 of- the Code of Civil Procedure, permitting one or more parties where they are very numerous to sue or defend for the benefit of all, are not applicable to the Municipal Court of the city of New York; and one of the nineteen owners of a schooner cannot bring an action in that court in his own name for the benefit of all the owners.</p>

<p>Evidence: Relevancy — Introduction of entire instrument because of introduction of part; Best and secondary evidence — Contents of instruments.</p> <p>Where plaintiff claimed to recover for services in finishing the printing of a book for which he had been paid, in part by one who had contracted to do the work with defendant’s agent, and where plaintiff testified, that such contract was exhibited to and read by him at the time he agreed to finish the work, and that he had apportioned his charge for his \work between the parties on the basis of such contract, its exclusion, when offered in evidence by defendant, was error for which a judgment against the defendant should be reversed.</p>

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

<p>Appeal from a judgment of the City Court of the city of ¡New York, entered in favor of the defendants after a trial before the court and a jury.</p>

<p>Appeal from an order of the City Court of the city of New York, remanding this action to the Municipal Court of the city of ¡New York for .trial.</p>

<p>Dismissal — Grounds and defenses — Failure to proceed — Excuses, generally -— Delay caused by defendant.</p> <p>Where all postponements of the trial of a case have been made with the defendant’s consent, the defendant is not in a position to charge the- plaintiff with laches in its prosecution, and defendant’s motion to dismiss the complaint for want of prosecution will be denied. , .</p>

<p>■ Appeal by the defendant from an order of the Municipal Court of the city of New York, borough of Manhattan, third, district.</p>

<p>Supplementary proceedings — Proceedings to examine judgment debtor — Affidavit- — Sufficiency — Information and1 belief — Demand— Refusal to apply property.'</p> <p>Code of Civil Procedure, § 2436.</p> <p>An affidavit for an order in supplementary proceedings, under section 2436 of the Code of Civil Procedure, made by the attorney, based as to material allegations on information and belief, which gives neither the grounds of the belief nor the sources of the information, is defective. Allegations that the judgment debtor has made an assignment of property to his son tend to show that the former has not possession of and cannot apply such property to the judgment; and, where a refusal to apply is claimed, facts and circumstances must be shown from which it-may be inferred that the refusal is unjust.</p>

<p>Brokers — Compensation — Eight to compensation.</p> <p>The repeal of section 640d of the Penal Code by L. 1906, ch. 516 prevents that section from being invoked as a defense to an action which was not pending when the section was repealed.</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 plaintiff from a judgment of the City Court of the city of ¡New York, entered in favor of the defendant by direction of the court, and also from an order denying plaintiff’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, fourteenth 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, fourth district, borough of Manhattan.

<p>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 jury, and from an order denying a motion for a new trial.</p>

<p>Landlord and tenant — Rent and advances — Rights and liabilities: Failure of landlord to repair; Eviction; Surrender.</p> <p>Where a landlord, prior to or at the time a written lease is made, by an independent oral agreement covenants to put the premises in repair, a breach of such covenant is no bar to an action for rent if the tenant has, nevertheless, taken' possession.</p> <p>In an action for rent, for the time during which the tenant occupied the premises, it is no defense that, after the occurrence of facts constituting a constructive eviction, the landlord accepted a surrender of the premises.</p>

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

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

<p>Master and servant — Master’s liability for injuries to servant: Nature and extent in general — Acts or omissions constituting negligence — Statutory requirements; Actions — Admissibility of evidence — Questions for jury — Master’s negligence as proximate cause. ■</p> <p>In an action by a workman, for personal injuries, against the owner of a building who not being a contractor was not within the purview of section 20 of the Labor Law, which provides for laying floors or planks over floors two stories below the story where the work is being performed, a charge that defendant was liable if she had a superintendent on the job to put a certain floor in the building or to cover a certain floor, duly excepted to, is error.</p> <p>Whether defendant was negligent in having things as they were shown to be and, if so, whether her negligence was a proximate cause of the accident, were questions for the jury.</p> <p>Probably, if she had no carpenter contractor, whose duty it was to comply with the provisions of section 20 of the Labor Law, proof of that circumstance would be admissible upon the question of her negligence.</p>

Appeal by the owner from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of New York, second district, borough of the Bronx, in an action to enforce a mechanic’s lien.

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

<p>Appeal by defendant, Angusta M. Walker, from a judgment of the City Court of the city of New York, entered upon the direction of a verdict after trial before the court and a' jury, and also from the order denying her motion for a new trial.</p>

<p>Salés — Waiver of defects by purchaser — Acceptance of machinery.</p> <p>Where, in an action upon a promissory note, given for the purchase price of a machine used in foundry work, no counterclaim is set up, but defendant relies solely upon breach of an express Warranty, it must show a rescission of the contract by proof of an offer to return the machine; and a refusal to so charge, on plaintiff’s request, is error for which a judgment in defendant’s favor will be reversed.</p>

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

<p>Taking case from jury and nonsuit — Presumptions in favor of plaintiff on motion for nonsuit. <</p> <p>Damages — Particular contracts and relations — Contracts for services — Wrongful discharge of servant.</p> <p>Upon appeal from a judgment dismissing a complaint upon plaintiff’s testimony she is entitled to the most favorable inferences that can reasonably be drawn from the evidence.</p> <p>Where, in an action for wrongful discharge of plaintiff employed by defendant for three weeks as an actress at his theatre, the answer does not deny that plaintiff was at all times ready and willing to perform her part of the agreement, as alleged in the complaint, it is not incumbent upon her to show affirmatively that she unsuccessfully sought other employment.</p> <p>Upon considering the testimony of the plaintiff in the present case the court held that it was error to- dismiss the complaint.</p>

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

<p>Costs: When allowable — In general — Right given by statute absolute; Amount — Fees of witnesses — Who may be charged for — Special excise agents.</p>

<p>Discovery and- inspection — Inspection of books and papers—Procedure: Application; Order.</p>

<p>Reference — Questions and actions compulsorily referable — Long accounts in general — What constitutes long account.</p>

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

<p>Appeal — Review — Scope of review — Review of evidence on appeal from final judgment.</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>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>

<p>Carriers — Carriage of passengers — Liability for personal injuries to passengers — Actions by passengers — Sufficiency of evidence as to negligence.</p>

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

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

<p>Municipal corporations — Liability with respect to sewers.</p> <p>Negligence—Acts or omissions constituting negligence — Personal conduct in general — Violation of statutes or ordinances.</p>

<p>Negligence —Actions — Evidence —Admissibility — Prior negligence.</p>

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

<p>Summary proceedings — Evidence — Sufficiency of evidence as to terms of lease.</p>

<p>Action for the judicial settlement of the accounts of a trustee under a trust created by a will.</p>

<p>Executors and administrators—Appointment and qualification of personal representatives — Persons entitled to administer — Surviving husband or wife.</p>

<p>Guardian and ward —Appointment, qualification and tenure of guardian — Duration and termination of authority — Removal.</p>

<p>Executors-and administrators — Compensation — Particular services and rate and computation of amount — Distribution and disposal of personal estate — Mode of distribution and disposal of funds — Life legacies or annuities — Security from life tenant.</p>

<p>Appeal by the plaintiff from an order of the Municipal Court of the city of New York, ninth district, borough of Manhattan.</p>

<p>Municipal Courts — Review — Judgments and orders reviewable — Order opening default and vacating judgment not appealable in the first instance.</p>

<p>Pleading — Complaint or declaration—Anticipating defense.</p>

<p>Pleading—Amendments — By leave of court: Subject-matter of amendment — New or different cause of action; Conditions on granting leave to amend — Payment of costs.</p>

<p>Guardians ad litem and special guardians — Necessity for appointment — Omission to procure appointment — Reaching majority' before trial.</p>

<p>Building and construction contracts—Submission of questions of performance to third persons — Eiigineer’s or architect's certificate as condition precedent.</p>

<p>Carriers — Carriage of passengers — Liability for personal injuries to passengers—Actions by passengers — Questions for jury.</p>

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

<p>Negotiable instruments—Actions—Complaint—Execution and delivery.</p>

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

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

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

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