Volume 52 — New York Miscellaneous Reports

<p>Taxes: Exemption from taxation — Mortgages; Equalization, correction and review — In general — Exemption becoming effective before completion of assessment roll.</p> <p>Where the assessors of a town set down in the town assessment roll the name of a person taxable therein and, in the proper column, the amount of certain mortgages held by her on the first day of July and, during the month of July, such person discharged those mortgages, taking others in their place for the same indebtedness on the same property and paying the recording tax thereon, it was the duty of the assessors, when they met to hear grievances in August, upon proof of the facts, to correct the assessment roll by striking out the assessment for the original mortgages.</p>

Motion on the part of plaintiff for leave to amend the order previously obtained by her to sue as a poor person, on proof of the poverty of the estate. Motion on the part of the defendant to vacate the order previously made, on the ground that the court is without jurisdiction to grant the same, and upon the further ground that the court’s discretion should not be exercised to grant it.

<p>Calendar — Order on calendar — Preference.</p> <p>The preference given by subdivision 13 of section 791 of the Code of Civil Procedure to actions for divorce does not apply to an action for a separation. Motion by the defendant for a preference under subdivision 13 of section 191 of the Code of Civil Procedure.</p>

<p>Application by a referee, appointed in an interlocutory judgment in partition to sell the premises therein described, for the instructions of the court as to the amount of his fees.</p>

<p>Motion by defendant to vacate and set aside a judgment entered in favor of plaintiff.</p>

<p>Issues of law upon a demurrer by the defendant to the first and second causes of action of the complaint.</p>

<p>Issues of law upon a demurrer to separate defenses set up in the answer. The complaint sets up five separate causes of action upon promissory notes made by defendant to plaintiffs.</p> <p>The answer, after denying substantially all the allegations of the complaint, alleges: “ Defendant further answering said complaint and as a separate defense thereto, alleges as follows:</p> <p>“ I. That on or about the 22d day of November, 1904, he entered into a contract with the plaintiffs, who are managers of the Equitable Life Insurance Company, whereby defendant agreed to act as General Agent for the plaintiffs in procuring applications for life insurance policies in said company; that it was further agreed in and by said contract, that certain renewal commissions on premiums paid on policies procured by the defendant were to be paid to the defendant on business secured by him for a period of ten years subsequent to the securing of the same.</p> <p>“ II. That, after the making of said contract, defendant entered upon the discharge of his duties thereunder, and procured a large amount of insurance for the plaintiffs and thereby became entitled to receive and is now entitled to receive from the plaintiffs, under said contract for said insurance, a sum in excess of the amount the plaintiffs now claim the defendant is indebted to them, as alleged in said complaint.”</p> <p>The plaintiffs demurred to such separate defense.</p> <p>The defendant did not appear upon the argument of the demurrer.</p>

<p>Issues of law upon a' demurrer by the plaintiffs to a separate defense set up in the answer.</p>

<p>Issues of law upon a demurrer by the defendant Linda S. Stachelberg,. individually and as executrix of the last will and testament of Charles G. Stachelberg, deceased, to the complaint upon the ground of insufficiency.</p>

<p>Action by plaintiff, a member of the Rochester Musicians’ Protective Association, to have his expulsion from said association declared null and void.</p>

<p>Husband and wife — Separation and separate maintenance — Validity of separation agreements.</p> <p>Divorce — Causes for divorce or separation — Abandonment and failure to support — Definition and legal elements.-</p> <p>Where parties in anticipation of marriage enter into an agreement by which, among other things, the woman agrees to release the man from any and all claims or demands q,s a husband, such as support of herself and her children, and it appears that the parties did not at the time of their marriage expect to have a common home for the present but to continue living separately as before, the wife cannot after the marriage maintain an action for separation on the ground of abandonment until some attempt on her part to require her husband to live with her or effort on her part to live with him in a common home.</p> <p>Such an agreement, however, made before marriage to release the husband from liability for the support of his wife and child, without any provision for such purpose in lieu thereof, violates one of the fundamental obligations of marriage and cannot be upheld, but is void as against public policy and no defense to the wife's action for a separation on the ground of defendant’s neglect and refusal to support her, where it appears that she has requested him to contribute to her support which he has absolutely refused.</p>

<p>Street railways — Street railway companies, their franchises and right to use of streets: Application of general railroad law; Nature and extent of rights granted; Extensions and change of route — Remedy of abutting owner.</p> <p>After the passage of chapter 10, Laws 1880, a corporation could not be formed under the General Railroad Law of 1850 and its amendments to construct or operate a street railroad in the city *-of New York, nor could a corporation he formed under that law without specifying in the articles of association the route of its projected road.</p> <p>Such an attempted incorporation under the general law after the passage of the act of I860 could not be validated, nor could the resulting corporation acquire a franchise to build a street railway in the city of New York by an assignment to the incorporators or to the corporation after the articles were filed of the franchise given by chapter 825, Laws 1873; nor any right to alter or change the route, the franchise being in the hands of the assignee subject to all the restrictions imposed upon it by the act which granted it.</p> <p>A change or alteration of route.is only permitted by the General Railroad Law for the improvement of the line of its road, physically; not to extend it for the purpose of increasing the company’s revenues nor to change its direction.</p> <p>An abutting owner has a sufficient interest to maintain an action to restrain a corporation from constructing an extension of a railroad in the street in front of his premises upon the ground that the corporation has not acquired the right to construct the same.</p>

<p>Subrogation — Order on foreclosure directing subrogation.</p> <p>Where the owner of mortgaged real estate devised the same to her husband for life with remainder to her children and a proposed vendee of the premises, upon refusing to take the title upon the ground that the power of sale given to the executor was, invalid, expressed a willingness to take the title if all the heirs would execute a deed to him, which they refused; and where one of them thereupon brought a partition suit and, after the service of the answer, at the request of the life tenant and the plaintiff in the partition suit, an action is brought to foreclose the mortgage in order that the property may be sold in accordance with the wishes of the executor and to avoid complications arising by reason of the contract of sale, a motion by one of the heirs who was also a defendant in the foreclosure action to compel an assignment of the mortgage to him should be denied, upon the plaintiff’s stipulating to take no further proceedings in the foreclosure action pending the termination of the partition suit.</p>

<p>Carriers — Carriage of passengers — Liability for personal injuries to passengers — Condition and care of premises — Steamboat dock.</p> <p>While plaintiff was upon the main dock of a steamboat company under the control of defendants awaiting the arrival of a boat upon which she expected to take passage a storm arose and she, with others, in search of shelter, went upon a structure built upon piles and connected with another and partly-roofed dock upon which were /the ticket office and seats for the public; and, while upon said structure, the timbers beneath gave way and plaintiff was precipitated into the water. In an action to recover for personal injuries and damages to her clothing, the evidence tended to show that the joists supporting the planking of the structure had become rotten and that the same had been constructed of rotten material and that an inspection of such parts before the accident would have revealed their condition. The testimony that the accident was due to a sudden and unusual weight upon the parts affected, caused by the presence of a large number of people, producing a strain beyond the ordinary uses of the passageway and in a manner not contemplated, was conflicting. Held that a verdict for plaintiff should be affirmed.</p>

The plaintiff’s complaint contained the following allegations: “ The above named plaintiff, for complaint herein against the said defendant, alleges as follows: That at the time of the commencement of this action said plaintiff resided in the Town of Stockton, County of Chautauqua, N. Y., and defendant is a resident of the same county.

<p>Municipal Courts — Procedure — Relief from default.</p> <p>Service of papers — Manner of service — By mail — Not on non-residents.</p> <p>Where, in an action in the Municipal Court of ijhc city of New York, the complaint is dismissed for failure to serve the summons, on affidavits traversing the return, an order, thereafter made on plaintiff’s motion to restore the case to the calendar, is unauthorized, it appearing from the return that both parties were in court when the complaint was dismissed, plaintiff’s remedy being either an appeal from the judgment of dismissal or the commencement of a new action; and a judgment for plaintiff, rendered in such an action without the appearance of” the defendant after such order restoring the case to the calendar, will be set aside.</p> <p>Section 797 of the Code of Civil Procedure was not intended to prescribe a mode of service upon non-residents of the State, and service of motion papers in the manner prescribed by that section upon non-residents is not valid.</p>

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

<p>Appeal by the plaintiff from an interlocutory judgment of the City Court of the city of New York.</p>

<p>Auctions and auctioneers — License, bond and tax — Bond of auctioneer — Action thereon — Demand not required.</p> <p>Upon failure of an auctioneer to pay over to the consignor of silverware the proceeds of a sale thereof, his liability upon his statutory bond immediately attaches; and a demand for payment of the amount due the consignor need not be pleaded or proven as a condition precedent to the enforcement of the liability of the surety upon the bond.</p>

<p>Assignments — Actions — Right of assignee to sue — Conditions precedent.</p> <p>Where payment of a promissory note, due in terms before a certain date, is secured by an assignment to the payee of all moneys due the maker from, defendant, its debtor, notice to the debtor of the assignment creates merely a contingent liability on its part; and, the'time of the maturity of the note being uncertain, a demand for payment thereof should have been made and notice thereof given to the defendant prior to the commencement of the action.</p>

<p>Pleading: Complaint or declaration. — The right or capacity to sue; Waiver of objections — Objections to complaint.</p> <p>Where, in an action by a foreign corporation to recover for goods sold and delivered, the complaint contains no allegation that plaintiff is a stock corporation and it does not appear that it was doing business in this State, a motion for a nonsuit, because of its omission to allege compliance with section 15 of the Stock Corporation Law, is properly denied.</p> <p>An objection that the complaint fails to allege compliance with section 181 of the Tax Law refers solely to plaintiif’s capacity to sue and, if not taken by either demurrer or answer, it is deemed to be waived; and a motion for a nonsuit upon such ground is properly denied.</p>

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

Appeal by the defendant TJlman from two orders of the Gity Court of the city of Yew York, entered in an action to foreclose a mechanic’s lien.

<p>Appeal by the plaintiff from an order of the City Court of the city of New York dismissing the complaint for alleged want of prosecution.</p>

Appeal by the plaintiff from a judgment of the Municipal Court of tjie city of Yew York, second district, borough of The Bronx, rendered 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 ¡New York, sixth district, borough of Manhattan.

Appeals from two judgments, one in favor of the plaintiffs and the other in favor of the defendants, rendered in the Municipal Court of the city of New York, seventh district, borough of Manhattan.

<p>Municipal Court — Review — Judgments and orders reviewable.</p> <p>Neither a judgment taken by default nor an order denying defendant’s motion for re-argument of his motion to open his default is appealable; and appeals from such judgment and order, brought by the ■ respective parties, should be dismissed, with costs to' each party to be offset against the costs awarded the other.</p>

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

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

<p>Former adjudication — What matters are concluded — Matters actually determined—Existence of corporation.</p> <p>Plaintiff, having entered into a written agreement with defendant, which was described therein as a corporation, to furnish certain performances of his theatrical troupe and having recovered a judgment against it for damages under said contract, alleging its corporate character, cannot thereafter recover a judgment against the associates who formed the corporation on the ground of fraud in falsely stating that such a corporation existed at the time of the contract when, in fact, its incorporation was not then complete.</p>

<p>Municipal Courts — Review — Decision — Increasing recovery.</p> <p>Where, in an action in the Municipal Court of the city of New York by an attorney and counselor at law for services performed and expenses paid in effecting the incorporation of a construction company, upon defendant’s employment, the defense was that by the terms of his employment his claim was not to be paid until the company was formed and that it never did any business, it is error for the "court, after having determined the issue in plaintiff’s favor, to award him a sum less than the sum proved to have been the agreed amount of his compensation and the amount of his disbursements; and the Appellate Term will modify such judgment by increasing the recovery to the amount established by the proof.</p>

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

<p>Taking case from jury — Necessity of request to submit case or issues to jury.</p> <p>In an action to recover the amount of an order upon defendant, given to plaintiff’s assignor, for money coming to the drawer under . a building loan contract, accepted by defendant with the qualification “provided any money becomes due him under agreement,” where the question litigated was whether anything was due on the contract, upon proof that defendant’s president, who accepted the order, admitted that a sufficient sum to pay the order was due, which is not contradicted, a verdict for plaintiff directed by the court will not be disturbed, where the defendant did not ask to have any issue submitted to the jury but merely asked for a dismissal of the complaint.</p>

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

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

<p>Brokers — Compensation — Performance of duty by broker — Bargain differing from terms of employment.</p> <p>A broker employed to procure a loan for three years is not entitled to commissions for procuring a loan subject to the lender’s right to enforce payment on sixty days’ nptice in case of the passage of a law changing the rate of taxation of mortgages, which the borrower refuses to accept.</p>

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

Appeal by the plain-tiff from a judgment of the City Court of the city of New York flismissing the complaint, and from an order denying a motion for a new trial.

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

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

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

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

<p>Husband and wife — Rights, duties and liabilities of husband — Liability of husband for necessaries — After separation.</p> <p>Where a husband and wife are, pending an action for separation, living apart, he paying her five dollars a week, the services of a nurse engaged by the wife during her confinement are necessaries for which he is' liable.</p>

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

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

Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city d£ ISTew York, fourteenth district, borough of .Manhattan, after a trial by jury.

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

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

<p>Landlord and tenant — Rights, duties and liabilities in regard to premises — Repairs, insurance and improvements — Mode oí making repairs — Negligence — Of independent contractor.</p> <p>A landlord, having control of the apparatus employed to heat the demised premises, is liable for injuries to his tenant’s goods caused by the negligent manner in which a person whom he employs to repair it does his work, whether such person is his servant or an independent contractor.</p>

<p>Landlord and tenant — Rights, duties and liabilities in regárd to premises — Injuries from dangerous or defective condition —Actions for injuries from negligence — Sufficiency of evidence as to negligence.</p> <p>Where a tenant in a tenement house is injured by falling into a hole in the hallway near her apartment where the landlord’s housekeeper had lately been working, in an action against the landlord for such injuries, where the housekeeper had been called but not questioned about the work he had been doing, it was error to dismiss the complaint.</p>

<p>Appeal by nnd or-tenant from final order of the Municipal Court of the city of New York, tenth district, borough of Manhattan, in favor of the landlords.</p>

<p>Landlord and tenant — Rent and advances — Rights and liabilities — Abandonment of part.</p> <p>Summary proceedings-*-Final order — One week after triaL</p> <p>Where a tenant continues to occupy part of the demised premises, though he has vacated another part, without an agreement for a partial reduction of rent, he is still liable for the whole rent; and the landlord may maintain summary proceedings against him for the recovery of the entire premises.</p> <p>Where the return on an appeal by the tenant from a final order in summary proceedings shows that the parties appeared on a certain day and that, on a subsequent day, a trial was had and that, a week thereafter, a final order was made in the landlord’s favor, without any appearance by either party, such order was without jurisdiction and an appeal therefrom will be dismissed.</p>

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

<p>Negligence — Acts or omissions constituting negligence — Dangerous machinery and substances — Injuries to licensees and trespassers.</p> <p>One who entered defendant’s premises, with whose use he was familiar, under a mere license, and is struck by a side of beef moving along a trolley built for the purpose which is in proper order, and has his jaw dislocated and his teeth knocked out, will be presumed to have assumed the ordinary risks of the place and to have been bound to use particular care to keep out of the way of the beef; and, where it appears that with such care he might have avoided the accident, a judgment in his favor will be reversed.</p>

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

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

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

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

Appeal by the plaintiff from a judgment of the City Conrt of the city of New York dismissing the complaint at the end of plaintiff’s case.

Appeal by the plaintiff from an order of the Trial Term of the City Court of the city of New York setting aside the verdict of a jury in plaintiff’s favor.

<p>Appeal by the plaintiff from a judgment of the Municipal Court of the city of Yew York, ninth district, borough of Manhattan.</p>

<p>Street railways — Operation — Actions — Damages.</p> <p>Damages — Measure for torts — Loss of or injuries to property — Injuries to automobile.</p> <p>In an action for damages to an automobile by collision with a street car an item of $150 for loss of the use of the automobile, based upon expert testimony as to the value of the use of an automobile like plaintiff’s, without evidence that plaintiff used his automobile for any business purpose or hired another vehicle to take its place, should not be allowed.</p>

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

<p>Civil service — In general — Eligible lists — Establishing new lists.</p> <p>A civil s-rviee rule, relating to eligible lists for the office of inspector of police in the city of New York, which provides that an eligible list that has been in force one year shall terminate whenever a new list is established, does not contravene the provision of the Civil Service Law (L. 1899, ch. 370) that the term of eligibility shall be fixed for each list at not less than one nor more than four years.</p>

<p>Demurrer to complaint.</p>

<p>Taxes — Persons, objects, and interests taxable — Corporations — Foreign corporations doing business within State.</p> <p>Where a foreign corporation carries on in this State a continuous, permanent and complete banking business which is not confined to the mere loaning, through an agent, of money the control of which is retained by the foreign principal, the corporation is liable to. an assessment of its capital for taxation under subdivision l of section 7 of the Tax Law, though it may not have obtained a certificate authorizing it to do business in this State.</p>

Motion on behalf of certain bondholders to modify orders of May 11 and 19, 1906, entered herein and affirmed by the Appellate Division on June 1, 1906, permitting the receiver, in the above action to foreclose a mortgage, to issue certificates in the sum of $1,000,000.

<p>Motion to continue injunction. The opinion states the case.</p>

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

Motion, in an action for libel, to strike out certain partial defenses as irrelevant and redundant. The opinion states the case.

<p>Attorney and client — The relation with the client: Summary remedies of client; Action for money collected — Demand.</p> <p>An action against an attorney for an alleged conversion of his client’s moneys which came into the hands of the attorney in the course of his client’s business and upon which the attorney has a lien as security for the value of his services and disbursements in such business will not lie until after there has been an accounting and the amount due the attorney from the client, if any, has been definitely ascertained.</p> <p>Remedies of a client who seeks to recover from her attorney moneys alleged to have been wrongfully retained, pointed out.</p>

<p>Action by a trustee in bankruptcy to recover moneys.</p>

<p>Action by a trustee in bankruptcy. The opinion states the case.</p>

Action by an owner of real estate to restrain the violation by an adjoining owner of a restrictive covenant in a deed affecting both properties.

<p>Action in equity to compel defendant to remove certain encroachments in a public highway.</p>

<p>Injunction — Who and what may be enjoined — Interference with property rights by private persons — Erections.</p> <p>Nuisance — Actions for abatement, injunction and damages — Public nuisances.</p> <p>Where the owner of a building, adapted for business purposes, in a city, erects a steel and glass front which extends twelve inches into the street and constitutes an encroachment, without any permission from the municipal authorities; and, in an action brought by the owners of another business building on the same side of the street, which is "separated from the first by an interval of twenty-six feet, to require the removal of such encroachment, it appears that, with the projecting front of defendant’s building, the building of plaintiffs is worth from $1,000 to $2,000 less than it would be without it; held, that such projecting front constitutes both a public and private nuisance and, as it produces a substantial injury to plaintiffs and their own building is without pro jections beyond the street line, they are entitled to a mandatory injunction for the removal of the projecting front and for the damages they have sustained thereby.</p>

<p>Guaranty: Construction and operation; Guaranty, whether personal or by corporation; Nature, scope and extent of liability — Guaranty of collection: Remedies of guarantee'—Conditions precedent.</p> <p>A guaranty against loss to one who loans money to a corpora tion, to secure which it assigns to him its accounts to be collected by him and out of the proceeds of which he is' to reimburse himself, is a guaranty of collection and the lender cannot maintain an action against the surety without alleging and proving diligeni efforts to realize upon the security.</p> <p>A guaranty by an officer of a corporation to one who is lending it money to the effect that “ I, as an officer in the said company, guarantee hereby to personally hold you harmless for any losses * * * in consideration of your continuing advancing money to the said corporation ” is the personal guaranty or contract of the officer and not the mere contract of the corporation.</p>

<p>Master and servant: The relation — Contracts of employment — Renewal or continuance of employment — New contract; Services and compensation — Wages and other remuneration — Employer’s rule providing “ indemnity of retirement ”.</p> <p>Where, upon the expiration of a contract for personal services for a period of two years, the employment continues without any new agreement, the law does not imply a new contract for one year; but the term of employment becomes indefinite and either party has the right to terminate it at any time. '</p> <p>Where an employer writes his employee “ Your salary at the present time of Fr. 1100 per month has been increased to one thousand one hundred and sixty-six francs and sixty-five centimes," and the employee accepts the increased salary, an employment by the month is imported and a new contract is to be implied.</p> <p>Where a rule of the employer provides that in case of dismissal an employee has a right to an indemnity of retirement equal to one month’s pay, the plaintiff is entitled to receive the same in addition to the entire salary for the month during which he was wrongfully discharged.</p>

<p>Actios for the construction of a will</p>

<p>Banking — Deposits — Repayment of deposits, and' to whom banks liable therefor.</p> <p>Principal and agent — Rights and liabilities of principal as to third person — Authority of agent.</p> <p>A bank, which receives from the attorney of an executrix a check payable to her order and indorsed by hizp with her name pursuant to the authority conferred upon him, and which collects the check and passes the proceeds to the credit of the attorney, who subsequently disburses the same, is not responsible to the executrix for the proper application of the moneys; and where the attorney uses the funds for his own purposes the executrix cannot recover the amount from the bank.</p>

<p>Wilis — Interpretation and construction — Terms defining quantum or duration of estates or interests — Rules and implications — Subsequent clauses reducing fee.</p> <p>Where a testator gives, devises and bequeaths to his wife all his real and personal estate forever, with power to sell, dispose of and give deeds for same, except that she should pay testator’s son Timothy ten dollars out of the real property “ after her death, as his share of his inheritance of all my property”; and where, in the next clause, the testator provides: “I devise, if any of this my property be left after the death of my beloved wife, Magdalene Farney, after paying the above ten dollars mentioned, to my son Timothy T. Farney, the rest, residue and remainder of my property be equally divided among the rest of my children * * * Excepting I give, devise and bequeath to my granddaughter Katie, daughter of my daughter Martha, the sum of one hundred dollars ”, held;</p> <p>There is an absolute gift of the testator’s entire estate (excepting ten dollars to his son Timothy and one hundred dollars to his granddaughter Katie) to his wife which is not cut down or divested by the following clause providing for a devise to his children if any of his property should be left after his wife’s death; for that provision is by its language applicable only to real estate, whereas the testator left only personal property, and is not so plain and decisive in its meaning as to nullify the plain, clear and unmistakable language that precedes it by which the testator’s estate was given absolutely to his wife.</p>

<p>Wills — Interpretation and construction: Terms defining the nature and quality of estates or interests — Future interests and vesting— Payment postponed; Terms fixing plurality or severalty of ownership or right—‘Particular words of doubtful meaning — Gift to “ next of kin ”; Extrinsic matters explaining intent as to estates and interests — To show that gift was by way of trust.</p> <p>Where a testator devised all his real estate and bequeathed the residue of his personal estate to his executors, in trust, to apply the rents, profits, interest and income to the use of his widow for life, and directed that, upon her death, the executors should convert the whole estate into personalty and, after paying certain legacies, including one of $500 to one of his sisters “ absolutely ” and one of $4,000 for the use of the executors jointly or the survivor or survivors of them, should then divide the balance remaining into six shares to be transferred to or held for the life of testator’s brothers and sisters, the principal of the shares of one brother and one sister to be paid immediately to them, and the principal of the shares of the others to be held for them, and upon the death of the respective life tenants to be paid to the next of kin of each, held: that the $500 legacy vested in the sister at the testator’s death but payment was postponed until the death of testator’s wife, and, upon the death of the legatee, it passed to her next of kin and her administratrix is entitled to receive the same.</p> <p>A letter attached to the will and addressed to the executors and other evidence clearly establishing the fact that the legacy of $4,000 was given to them in trust for a Jewish congregation in Bavaria which had power there to take property by will, the court will direct the payment of such amount to the officers of said congregation.</p> <p>One of testator’s sisters, who was entitled to the use for life of one-sixth of the residuary estate, died after the death of the testator and before that of his wife leaving three children, all of whom afterward died leaving children. Held, that said sister’s share should be divided into three parts and that her grandchildren took per stirpes and not per capita.</p>

<p>Danaiord and tenant — Eights, duties and liabilities in regard to premises— Possession, enjoyment and use — Injuries to premises By tenant; by third persons.</p> <p>Negligence—■ Actions — Evidence — Weight and sufficiency — Persons causing injury.</p> <p>In an action by a landlord against his tenant’s wife to recover for injuries to the demised premises in that rooms clean and newly papered at the beginning of the term were left smoky, dirty and stained at its close, in the absence of proof that the injuries were caused by the defendant’s own negligence, a recovery cannot be had and a judgment against her will be reversed.</p>

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

<p>Parties — Amendments — Misnomer in general.</p> <p>An amendment of a summons and complaint for misnomer of the defendant can only he made upon notice to the real defendant intended to he sued.</p> <p>Where notice of motion to amend the summons and complaint, by correcting the name of the defendant and making the same to read “Niagara County Home Telephone Company” instead of “Niagara Falls Home Telephone Company”, has not been given to the real defendant intended to be sued the motion must he denied; notice to the attorneys who appeared and answered only for the Niagara Falls Óompany and who had no authority to appear for or represent the Niagara County Company will not confer jurisdiction to make the amendment.</p> <p>Whether jurisdiction was ever obtained over the real defendant intended to be served with the summons and complaint cannot he determined upon a motion to amend.</p>

Motion on the part of defendant for an order striking out as irrelevant certain portions of plaintiff’s complaint; or, in the alternative, for an order requiring plaintiff to make its complaint more definite and certain by separately stating and numbering any causes of action contained in the paragraph of the complaint, the subject of this motion.

Motion to vacate an order granted ex parte for the examination of Moses Shire, a party to the action, before trial, pursuant to sections 870 to 873 of the Code of Civil Procedure.

<p>Motion by the defendant to vacate an attachment.</p>

<p>Motion by plaintiff for a new trial on the ground of newly discovered evidence.</p>

<p>Constitutional law — Provisions relating to public officers — Civil service and preference of veterans — Removal by Superintendent ot Public Works.</p> <p>Section 9 of article V of the State Constitution, which relates to appointments and promotions in the civil service, does not affect the provision of section 3 of the same article giving to the Superintendent of Public Works power to suspend and remove persons appointed by him.</p> <p>The provision of section 21 of the Civil Service Law that an honorably discharged soldier shall not be removed from any position or employment except after a hearing is in conflict with the provision of section 3 of article V of the State Constitution, so far as it relates to subordinates in the canal department, and cannot abridge the powers of the Superintendent of Public Works to remove them.</p>

Retobe of an order to show cause why a peremptory mandamus should not issue requiring the defendant to designate the Essex County News as the Republican paper in which to publish the Session Laws and the concurrent resolutions of the ensuing year.

Proceedings upon certiorari to review an assessment of $578,200, made by the defendants on the personal property of the relator.

<p>Motion on the part of the city of Buffalo for an order permitting it to file nunc pro tunc an affidavit of notice of service of an application for the appointment of commissioners.</p>

Motion to confirm report of commissioners to appraise defendant’s damages by reason of the construction of an electric road across his farm.

Proceedings brought to acquire title to certain lands required for the opening of a street! The opinion states the material facts.

<p>Intoxicating liquors — Revocation or forfeiture of license — Proceedings to annul certificate — Sufficiency of petition — Waiver.</p> <p>In a proceeding for the cancellation of a liquor tax certificate because the necessary consent of property owners had not been obtained, where the respondent, without objecting that the allegations of the petition are on information and belief, files an answer and the matter is referred and the respondent appears before the referee and then interposes such objection but the referee proceeds • and takes proof and reports the same and the proof is sufficient to warrant the cancellation of such certificate, held, that the objection should have been taken before or at the time of answering and was waived by the respondent by filing his answer and consenting to the reference.</p>

<p>Intoxicating liquors — Granting license — Consent of property owners — Discontinuance of existing business on account of fire.</p> <p>Where a building, long used as a hotel and for the sale of liquors, burns down and the land remains, for between two and three years, unoccupied, during which time the owner conveys it to his brother as security for an indebtedness, a mortgage thereon is foreclosed and the brother buys it at the foreclosure sale and afterwards moves onto it an old building, which he fits up as a saloon, and obtains a liquor tax certificate under which he proceeds to traffic in liquors; and both brothers testify that they did not intend to abandon the traffic on the premises but to open a hotel on the site as soon as they could make financial arrangements, an abandonment of the business should not he inferred from the circumstances; and an application to cancel the liquor tax certificate on that ground should be denied,</p>

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

<p>Carriers — Carriage of goods — Contracts for transportation in general — Assent of shipper to terms of hill of lading.</p> <p>Where a shipper’s agent, upon the delivery of certain household goods to a carrier for transportation, reads and accepts, without objection, a bill of lading upon which is plainly stamped “ Valuation restricted to $5.00 per 100 pounds ”, a recovery in an action for damages to the goods while in transit will be limited as stated in the contract, though the agént testifies she did not understand the provision.</p>

<p>Motioet to vacate and set aside an indictment on the ground that there was not sufficient evidence before the grand jury to warrant the finding of the indictment, and on the further ground that it was found upon incompetent and illegal evidence.</p>

<p>Appeal from a judgment of the Municipal Court of Buffalo, dismissing the plaintiff’s complaint.</p>

<p>Principal and agent — Rights and liabilities of agent as to third person — In general.</p> <p>Municipal Courts — Review — Question of fact — Verdict against the weight of evidence.</p> <p>Where one assumes to act as appraiser of a fire loss under a written agreement between the insured and the insurance company, referring to the provision of the policy by which the appraiser’s compensation for services was to be borne by the insured, he will be deemed to have consented to act under those terms and conditions and may not recover his pay from the agent of the insured who brought about his selection.</p> <p>Plaintiff having recovered judgment in the Municipal Court of the city of Buffalo and the evidence being strongly in favor of defendant’s contention and it appearing that the verdict included an item for the services of an umpire whose claim had been assigned to plaintiff, to justify which there was no evidence, the judgment, on appeal to the Supreme Court, will be reversed under section 30G3 of the Code of Civil Procedure as against the weight of evidence.</p>

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

<p>Sales — Interpretation and evidence of contract — Quantity of goods sold — Eight of seller.</p> <p>Damages — Particular contracts and relations — Contract for sale or purchase of goods — Breach by buyer.</p> <p>Where defendant gave the plaintiff, a jobber in iron and steel, a written order to ship from “ 100 to 125 tons soft steel (pounds) at $1.50 base. Half extras B. O. B. for deliveries to July 1, 1906,” above which was written “ Our requirements approximately ”, defendant’s obligation is to take at least 100 tons of steel.</p> <p>Defendant prior to July 1, 1906, ordered only 19 tons and declined to place further orders upon the ground that under the contract it was not required to take more than it actually required even though its requirements did not equal 100 tons. In an action to recover loss of profits alleged to havé been sustained by defendant’s failure to take and pay for 100 tons it was stipulated by plaintiff that, for the purpose of enabling it to fill orders from its customers including that received from defendant, it placed with a steel company orders for steel to be delivered, and it was conceded that plaintiff was enabled to sell to other customers all the steel ordered from the steel company at as good prices as those agreed to be paid by the defendant, but that plaintiff could on receipt of an order from defendant have filled it by placing orders with the steel company. Held, that plaintiff’s measure of damages was the difference between the cost of manufacture and the contract price.</p>

<p>Demuebbbs to complaint. , •</p>

<p>Taking case from jury and nonsuit — Effect of request to direct verdict — Request of both parties.</p> <p>Principal and surety — Remedies of creditor — Securities given to surety — Principal debtor becoming surety by indemnity from former co-obligor cannot release latter’s liability to creditor arising from indemnity agreement.</p> <p>Where upon the trial each party requests the direction of a verdict in his favor, the court is clothed with the functions of a jury in determining questions of fact.</p> <p>Where the holder of a bond which is secured by a mortgage releases one of two joint and several obligors and, the day previous, the obligor about to be released executed an agreement to the remaining obligor that, in consideration of the latter’s consent to such release, he would pay one-half of any deficiency which might remain after the foreclosure of the mortgage, which agreement is submitted to the holder of the bond, modified by his direction and, after its execution and at the time of the delivery of the release, is delivered to and thereafter kept by him, it will be. presumed that the execution of the agreement was an inducement to the execution of the release and, though running in terms to the co-obligor, was for the benefit of the holder of the bond; and, in an action thereon in the name of the co-obligor, after the foreclosure of the mortgage, to recover half the deficiency, assignments by the nominal plaintiff of the cause of action for his personal benefit, made after the commencement of the present suit, by which the defendant acquired title to the cause of action, without the consent of the holder of the bond, could not constitute a defense to the present action which though brought in the name of the co-obligor was for the use of the holder of the bond.</p> <p>Upon such a covenant, though under seal, the real party in interest might bring an action in his own name; or he might bring such action in the name of the covenantee, and that without the latter’s consent thereto.</p>

<p>Action upon quantum meruit for services rendered; defense, another action pending.</p>

<p>Action for the specific performance of a contract for the sale of real estate.</p>

Action for specific performance of a contract to purchase premises owned by the plaintiffs on Clifford street in the city of Rochester.

<p>Vendor and purchaser — Title and incumbrances — Defective deed in chain.</p> <p>It is a valid objection to the title of the vendor of real property by the purchaser that the certificate of the acknowledgment of a deed through which the vendor claims, executed and recorded thirty-two years before, was defective in not stating that the officer taking the acknowledgment knew or had satisfactory evidence that the person making such acknowledgment was the individual described in and who executed such conveyance, the deed itself having been lost and the unauthorized record disclosing the defect in the certificate of acknowledgment.</p>

<p>Action to construe the will of Charles B. Willey, deceased-</p>

<p>Action to compel the specific performance of a contract.</p>

<p>Suspension of power of alienation — Conditions determining validity of suspension — Computation of period within which alienation may he suspended.</p> <p>Where a testator gave real property to his executor in trust, during the life of the longest liver of his two daughters, to pay the net income to persons designated in his will and directed him then to sell the property and gave one-fifth of the proceeds to the appointees of his daughter Frances hy deed or by will and, in default of such appointment, to her heirs at law; and where the daughter Frances, thereafter, by her will, gave such share of the proceeds to a trust company, during the life of her grandniece, upon certain trusts and, upon the death of her grandniece, gave the same to her issue absolutely; held that the daughter’s will which attempted further to suspend the power of alienation, it having already been suspended by her father’s will for the full period permitted by the statute, was invalid as an exercise of her power of appointment and the fund should he distributed under the provisions of her father’s will in default of her appointment.</p>

<p>Corporations: Mode of corporate action and representation by officers and agents — Necessity of resolution to transfer property; Mode of entering into obligations and power of officers to make contracts — Apparent authority of officers — Authority of treasurer.</p> <p>To sell and assign accounts due a corporation is not within tho scope of the authority of its treasurer and, unless the execution of a written assignment of such an account purporting to have been made by a corporation is shown to have been executed by its authority, the assignee may not recover thereon.</p> <p>Where, in an action upon an undated instrument in the following form: “ For value received we hereby sell, assign and transfer * * * all our right, title and interest in and to the annexed account * * *. Signed, Aster Co., by A. Epstein, Treas.,” the plaintiff’s ownership of the claim is put in issue and there is no evidence that the execution of the instrument was authorized by the corporation or its board of directors or was ever duly ratified and the corporate seal is not affixed, the corporation is not bound thereby.</p>

<p>Appeal — Time of taking — Notice pf entry of judgment — Sufficiency of notice.</p> <p>Notice of entry of judgment in the City Court of the city of New York, which states the judgment to have been “ entered herein iu the office of the clerk of the court within named,” is sufficient and service thereof limits the time to appeal.</p>

<p>Pleading — Motions relating to pleadings — Motions to make more definite and certain — Allegations sufficiently certain — Unnecessary allegations.</p> <p>Where, in an action to recover upon a foreign judgment, defendant sets up that she retained plaintiffs to advise her whether she could legally sell certain mortgaged personal property situated in another State; that it Avas agreed that, in ease they advised her that she could safely sell the property, they would assist her by giving their legal opinion to any proposed customer she might introduce to them; that they advised her that the sale was legal; that thereafter she introduced a proposed customer ready, willing and able to pay a certain amount for the property but that the plaintiffs refused to have any interview with the customer in consequence of which the customer believed that the sale was illegal and refused to purchase, an order that defendant make her counterclaim more definite and certain, by alleging: (1) That the pro-' posed sale was legal under the laws of the State where the property was situated; (2) whether the proposed customer was ready, able and willing to buy the property free and clear of all liens or otherwise, and (3) by stating in detail the reasons which caused the proposed customer to refuse to purchase the property, will be reversed upon the ground that the reasons which caused the proposed customer to refuse to complete his sale were already sufficiently stated, and that the other allegations required by the order were irrelevant.</p>

<p>Arpear from an order of the City Court of the city of Xew York denying defendant’s motion for a hill of particulars.</p>

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

<p>Jurisdiction — Jurisdiction of particular courts — City and marine courts.</p> <p>Mechanics’ liens — Bond or deposit to avoid lien — Power of City Court to approve.</p> <p>' The City Court of the city of New York is without jurisdiction of an action to enforce a mechanic’s lien amounting to over $2,000, and may not, therefore, direst the cancellation of a lien amounting to $7,300 upon giving an undertaking.</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>Carriers — Carriage of passengers — Contract for transportation — Delay in transportation — Authority of ticket agent or conductor to make special contract.</p> <p>The obligation of a carrier to run its trains in conformity to its schedule is not an absolute and unconditional one, and the mere taking of a ticket by a passenger does not of itself impo-ie the duty upon the carrier to have a train ready to start on schedule time in the absence of negligence.</p> <p>The statement by a passenger to a ticket agent of the necessity he was under to reach his destination on schedule time and the statement by the ticket agent that the train was late but would make up for the lost time, and a similar statement by the conductor to the passenger after entering the train, do not constitute a special contract that the train would arrive on time; such a contract not being within the authority of the ticket agent or conductor and their statements being mere expressions of opinion.</p>

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

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

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

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

Appeal by the defendants from a judgment of the City Court of the city of New York, entered in favor of the plaintiff by direction of the court.

Appeal by the defendants 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>Municipal Courts — Procedure — Pleading — Motion to dismiss complaint — Should be granted with leave to amend.</p> <p>A motion may he made in the Municipal Court of the city of Mew York to dismiss the complaint on the ground that it does not. state facts sufficient to constitute a cause of action, but such a motion is equivalent to a demurrer and, if granted, should be with leave to amend; and a judgment entered upon the decision of such motion, without such leave having been given, is erroneous.</p>

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

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

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

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

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

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

Appeal by the defendant from two judgments entered in favor of the plaintiffs, respectively, in the Municipal Court of the city of New York, third district, borough of Manhattan.

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

Appeal by the defendant from a judgment and order of the Municipal Court of the city of ¡New York, ninth district, borough of Manhattan.

<p>Argument of counsel — Right to open and close — How determined.</p> <p>Instructions — Time and manner of giving and sufficiency — As to burden of proof.</p> <p>The right to open and close is determined by the pleadings at the time of the trial and cannot be altered by admissions made during its course;, and, where defendant denies in his answer the allegations of the complaint, the plaintiff has the right to open and close.</p> <p>In an action for work, labor and services where defendant interposed a counterclaim for failure to redeliver certain goods it was error for the court to charge the jury that the burden of proof was on the plaintiffs to establish such redelivery.</p>

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

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

<p>Municipal Courts: Process — Substituted service; Review—Judgments and orders reviewable.</p> <p>Process — Service — Substituted service — Proof to warrant order.</p> <p>An affidavit which merely states that the affiant had made diligent efforts to locate the defendant but the place of her sojourn could not be found and if in the city she avoids service, together with an affidavit by the defendant’s trustee that defendant is not a resident of New York but for a year has been a resident of Berlin, Germany, is an insufficient foundation for an order for substituted service of the summons in an action in the Municipal Court of the city of New York.</p> <p>An order of said court opening a default is not appealable, and an appeal therefrom will be dismissed.</p>

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

<p>ew trial — Procedure to procure new trial — Order granting new trial — Must specify grounds.</p> <p>A statement in an order granting a new trial of the grounds on which the motion for a new trial was made is not a sufficient compliance with Rule 31 of the General Rules of Practice which requires the order to specify the grounds on which it was granted.</p>

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

<p>Appeal from an order of the City Court of the city of Eew York, granting a motion made by the defendant for an order vacating and setting aside a judgment entered on Eovember nineteenth for default of the defendant; also setting aside the service of a summons made herein upon one William Max.</p>

Appeal by the judgment-debtor from an order of the City Court of the city of blew York, entered May 21, 1906, granting a motion for the sale of the property interests' of the judgment-debtor.

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

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

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

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

Appeal by the plaintiff from a judgment of the Municipal Court of the city of Mew York, sixth district, borough of Manhattan, sustaining the defendants’ demurrer to the complaint.

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

<p>Landlord and tenant — Rent and advances — Rights and liabilities — Deposits and other security.</p> <p>Where rent is payable in advance under a lease which is terminated upon the ninth of the month by the execution of a warrant in summary proceedings for non-payment of rent, the tenant is not entitled to recover a deposit, equal to one month’s rent, which was to be returned upon the expiration of the lease.</p> <p>MacLean, J., dissented.</p>

<p>Landlord and tenant — Rent and advances — Rights and liabilities — Persons entitled to rent'—Transfer of rent or reversion.</p> <p>Unless specially reserved, rent follows an estate in reversion; and, where a monthly lease is terminable by either party upon a thirty days’ notice and the tenant moves out, after a sale of the premises but during the same month, without having given the notice required by the lease, he is liable to the purchaser for the next month’s rent.</p>

<p>Appeal by the landlords from a judgment and final order in favor of the tenant, entered in summary proceedings in the Municipal- Court of the city of New York, fourth district, borough of Manhattan.</p>

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

Appeal by the tenants from a final order in summary proceedings, made in the Municipal Court of the city of Bew York, fifth district, borough of Manhattan.

<p>Libel and slander — Words imputing crime — Poisoning animals.</p> <p>Words charging that plaintiff, maliciously and without cause, poisoned all the cats and dogs in the neighborhood, which act, if true, would be a misdemeanor under section G60 of the Penal Code, are actionable per se.</p>

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

<p>Appeal by the defendant from an order of the Municipal Court of the city of Mew York, eleventh 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 Mew York, eighth 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, third district, borough of Manhattan.

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

<p>Negligence — Actions — Evidence — Admissibility.</p> <p>In an action brought to recover for injuries sustained by the fall of a beam, in a pile of lumber near the sidewalk, a short distance from where defendants were erecting a building, where the ownership of the lumber was in question, it was error to exclude the question, asked one of the defendants by the plaintiff: “Now what did you do with ” the pile of lumber in question?</p> <p>MacLean, J., dissented.</p>

Appeal by the plaintiff from an order entered in the Municipal Court of the city of Few York, first district, borough of The Bronx, setting aside the verdict of a jury rendered in favor of the plaintiff and ordering a new trial.

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

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

<p>Sales: Waiver of defects by purchaser — Acceptance as waiver; Remedies of seller — Action for price — Defenses — Counterclaim.</p> <p>In an action for the price of goods sold, where the defendant alleges that the goods were to be delivered to him in Brooklyn in perfect condition and that one of the articles was different from that purchased and another was damaged,, and where it appears that the purchaser kept the articles for about four months without making complaint, it was error to dismiss the complaint. The defendant at most could only recoup such damages as he might prove from plaintiff’s breach of warranty.</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.

<p>Street railways — Operation — Actions — Instructions — Contributory negligence.</p> <p>In an action for injuries sustained in being struck by a street car coming from behind while riding on a bicycle along the track, it was error to charge the jury that it was not plaintiff’s business to look around unless he heard a noise; that, unless his attention was called by a bell or shout or something of that kind, Ms eyes were supposed to be ahead and, if the car struck him behind, it was for defendant to show the accident was not due to its negligence.</p>

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

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

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

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

<p>Vendor and purchaser — Performance of the contract —Purchaser’s right to discharge incumbrances with purchase money — Under agreement to pay all water bills.</p> <p>Municipal corporations — Taxation and water rents — Water rents.</p> <p>An agreement by a vendor of premises in the city of New York to pay “ any water bills ” is to be construed as intending legal bills and not bills based on consumption during prior like periods of time and not upon the reading of the meter which was defective; and where the purchaser paid such bills he cannot recover the amount thereof against the vendor under such agreement.</p>

<p>Appeal by the plaintiff from a judgment of the City Court of the city of 2STew York, entered upon the dismissal of the complaint in favor of the defendant.</p>

<p>Eminent domain — Property subject to appropriation — Taking by municipality of railroad lands.</p> <p>Eeal estate, acquired and used by a railroad company and necessary for the proper transaction of the business of the company, is dedicated to a public -use and cannot be taken for street purposes except by special legislative authority; and both section 95S of the Consolidation Act (L. 1882, eh. 410) and the provisions of the Greater New York charter (L. 1897, ch. 378, as amended in 1901), authorizing the city to acquire land for street purposes, being general statutes, are not sufficient to warrant condemnation thereof for a street.</p>

Mo tío a to confirm report of commissioners appointed to ascertain the compensation to be made to defendants for certain real property taken by plaintiff for railroad purposes.

<p>Eminent domain — Condemnation proceedings — Fees of commissioners — Additional allowance to commissioners in New York city.</p> <p>Where proceedings for the acquisition of property for public purposes in the city of New York were instituted in 1905, the commissioners of appraisal may be granted an additional allowance reasonable in amount.</p> <p>Under the amendment (L. 1904, eh. 736) to section 998 of the Greater New York charter the court was empowered to grant additional allowances to commissioners of appraisal in CQhdenmation proceedings. Prior to the amendment to said section in 1906 (L. 1906, ch. 658), which omitted the provision as to such allowances and further provided that “ the provisions of this title shall apply to all pending proceedings where the duty or duties herein or heretofore imposed or act or acts heretofore required to be done have not been performed,” a street opening proceeding was instituted and the commissioners qualified in 1905. Held, that the amendatory act of 1906 did not apply and that the court was authorized to grant an additional allowance to said commissioners.</p>

<p>Proceeding to acquire title to lands for a public street.</p>

<p>Exhibitions — Licensing — Revocation of license.</p> <p>Greater New York charter, section 1476.</p> <p>A proceeding under section 1476 of the Greater New York charter (L. 1897, eh. 378, as amended L. 1901, ch. 466) for the revocation of a license to keep a concert room in said city, because of violations of the provisions of law under which it was granted, may be instituted in the name of the police commissioner who signed the license.</p> <p>A petition by the police commissioner alleging his belief in the alleged violations of the provision of law under which the license was granted, stating the grounds of such belief and the sources of his information which consist of affidavits made by persons who were present and witnessed the alleged unlawful performances and which are expressly made a part of the petition, states the facts with sufficient positiveness.</p> <p>Under section 1481 of said charter which provides that every exhibition or performance of a prescribed kind shall of itself render void any license previously obtained by any proprietor, allowing a building to be used for the purpose of any such exhibition or performance, the absence of any affirmative act on the part of the licensee or even his ignorance of any violation of law, or his ineffectual attempts to secure compliance with it are not enough to protect his license; nor is the fact that he gave explicit orders to his stage manager to instruct the persons performing at his theatre that, when they appeared at the concert performances given on Sunday, no performance or act should be given which was prohibited by law.</p>

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

<p>Civil service — Preference of veterans — Promotions — Increase of salary a promotion.</p> <p>Constitutional law — Provisions relating to public officers — Civil service and preference of veterans.</p> <p>An increase in the salary of a clerk in the bureau of assessments arid arrears in the city of New York, although not accompanied by any change in character of work, is a “ promotion ” within the meaning of the constitutional provision (Const., art. V, section 9) that promotions in the civil service shall be made according to merit and fitness, after competitive examination, and that honorably discharged veterans shall be entitled to preference in appointments and promotions without regard to their standing on any list.</p> <p>Where neither the basis for an attempted increase'in the salary of such a clerk, nor the fact that his proposed promotion is based upon some qualification to be ascertained by civil service examination so as to bring the case outside the constitutional provision, is shown, and it appears that, when his promotion was attempted, an honorably dis'Mrged veteran blocked his advancement, though, under a classification subsequently made, the veteran would not be eligible for promotion, the clerk must abide by the situation as it existed on the date of 1ns attempted promotion, and is not entitled to a peremptory writ of mandamus.</p>

Motion to vacate an order impounding the ballot boxes containing the ballots cast at an election for mayor of the city of New York.

<p>Appeal from a final order in summary proceedings made by a justice of the peace.</p>

<p>Taxes: Assessment — Formal requisites of assessment — In general — Description of person; relief from illegal taxation — Refundment by county or town — Voluntary payment.</p> <p>In a proceeding under section 16 of the County Law (L. 1892, eh. 686), to compel the repayment by the town of Shelby to the village of Medina of a tax levied upon the property of the village, affidavits of an assessor will not be received to show that in 'making the assessment the assessors included other property than the property upon the assessment roll.</p> <p>Nor can the court take evidence to determine whether the assessment was illegal and improper, as the court has authority to do only what should have been done by the board of supervisors upon the evidence before them.</p> <p>Nor will the insertion of the words “ Village of Medina Water Works outside of Corporation ” in the assessment roll under the heading “ Names of Taxable Persons ” invalidate the assessment, as the village of Medina is thus named with sufficient certainty; but if it were not, it is doubtful if the objection founded upon the defect in the name was not waived by the voluntary payment of the tax.</p>

<p>Appeal by the plaintiff from a judgment rendered in favor of the defendant in justice’s court of the town of Eaton, Madison county, D. T.</p>

<p>This is a proceeding by Irving L. Eoberts, as committee of .the estate of Mary Hardy, a lunatic, for an accounting.</p>

<p>Motion to compel plaintiffs to give security for costs.</p>

<p>Security for costs:. Time for making motion — Waiver by pleading; hearing and determination of motion — Ex parte order or motion upon notice.</p> <p>The absolute right of a defendant to security for costs, in an action brought by a nonresident plaintiff, is waived unless asserted before answer.</p> <p>Where the papers, upon which an order is founded requiring a nonresident plaintiff to give security for costs, made after defendant had served its answer, contain nothing tending to show that the defendant did not know of the plaintiff’s nonresidence when the action was commenced, the order made without notice to the defendant should be vacated.</p> <p>In such circumstances the better practice is to move for an order requiring security for costs upon notice to plaintiff.</p>

<p>Motion to compel plaintiff to separately state and number causes of action.</p>

<p>Motion to compel defendants to accept service of a second amended complaint.</p>

<p>"Pleading — Motions relating to pleadings:—In general — Separate motions required for amended and supplemental answers.</p> <p>A defendant may not combine in a single motion an application to serve both an amended and a supplemental answer, but permission therefor must be obtained by two separate motions.</p>

<p>Motion for an inspection of books and papers.</p>

<p>Motion to vacate an order for the examination of plaintiff.</p>

<p>Motion to set aside the service of summons and to vacate judgment entered by default upon the ground that the summons was not served.</p>

<p>Motion by defendant Church to dismiss action because of plaintiff’s neglect to proceed therein.</p>

<p>Motion by plaintiffs to amend summons and complaint herein.</p>

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

<p>Taking case from jury and non-suit — Weight and sufficiency of evidence — Uncontroverted evidence.</p>

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

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

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

<p>Appeal by the tenant from two orders in favor of the landlords made in the Municipal Court of the city of New York, fourth district, borough of Manhattan.</p>

<p>Landlord and tenant — Rights, duties and liabilities in regard to premises — Repairs, insurance and improvements — Covenants and agreements as to repairs — When not to be implied.</p> <p>Evidence — Admissions — Admissibility as affected by mode of making admissions — Tender or offer to compromise.</p>

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

<p>Contracts — Interpretation of contracts — Particular agreements — To pay costs of doing job.</p> <p>Master and servant — Services and compensation — Wages and other remuneration— Agreement to pay costs of doing job.</p>

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

<p>Municipal Courts — Review — Judgments and orders reviewable— Order for security for costs.</p>

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

<p>Foreign corporations — Powers, duties, rights and liabilities — Eight to sue,</p>

Appeal by defendant Gottlieb from a judgment of the Municipal Court of the city of New York, ninth district, borough of Manhattan, rendered in favor of the plaintiff for $137.50.

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

<p>Mechanics’ liens — Bond or deposit to avoid lien — Order authorizing — Unauthorized cancellation by clerk.</p>

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