Volume 54 — New York Miscellaneous Reports

<p>Intoxicating liquors: Granting license — Consent of property owners; Prohibition of traffic in certain localities; Proximity of school or church — Prohibition within certain distance of dwelling house; Revocation or forfeiture of license — Who may petition therefor.</p> <p>An unfinished and unoccupied building designed for and intended to be occupied exclusively as a church is not a building occupied exclusively as a church; and a negative answer to the question, contained in an application for a liquor tax license, whether the place in which the traffic in liquors is to he carried on is within two hundred feet of a building so occupied is not a false answer to the question.</p> <p>Where access to a rear building on a lot is through an independent hallway, leading from the street through the front building to the yard between the front and rear buildings, the entrance from the street into such hallway is not the entrance to the rear building which the statute contemplates, hut the entrance contemplated by the statute is the door or physical opening in the wall leading from the yard into the rear building; and, where this entrance is within the prescribed distance, the consent of the owner of the building or his agent is required.</p> <p>One who is merely a lessee of a building, though he represents the owner as a general real estate agent and is interested in any profits that might be realized upon a sale of the property, is not the owner or the duly authorized agent of the owner within the meaning of the Liquor Tax Law.</p> <p>Testamentary trustees in whom the legal title to the testator’s real estate ’is vested are taxpayers within the meaning of the Liquor Tax Law and as such authorized to petition for the revocation of a liquor tax certificate.</p>

<p>Certiorari to review an assessment on the capital stock of relator, a domestic corporation, for the year 1906.</p>

<p>Return to a writ of habeas corpus.</p>

<p>Criminal law — Offenses and grades thereof — Acts constituting offenses — Ticket agent at theater.</p> <p>A mere ticket agent at a theater is not included in the class of persons who are described in section- 290 of the Penal Code and therein declared to be guilty of a misdemeanor.</p>

<p>Husband and wife — Abandonment and non-support — Security for support — Compelling new security after recovery on bond in the city of New York.</p> <p>Greater New York Charter, § 690.</p> <p>To issue the warrant prescribed in section 690 of the Greater New York Charter (L. 1901, ch. 466) and to require the defendant to give new security, a new information against the defendant is not required; but it should appear by the affidavit presented that a recovery was had upon the bond given by the defendant upon his conviction, pursuant to section 686 of the charter.</p>

<p>Application for a peremptory writ of mandamus,</p>

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

<p>Mandamus —General rules — Grounds for refusing in general — Laches.</p> <p>Municipal corporations — Officers and agents — Officers and employees other than mayor, etc. — Resignation, removal, etc. — Investigation of charges and proceedings to remove — Sufficiency of notice.</p> <p>Where an employee in-the tenement house department of the city of New York, five months after her removal by the tenement house commissioner, applies for a writ of certiorari to review the action of the commissioner in removing her but withdraws the application in consequence of the conflicting decisions as to her remedy and subsequently and after a decision of the Court of Appeals settling the question of remedy and sixteen months after her removal she applies for a peremptory mandamus for her reinstatement, she will not be held guilty of laches.</p> <p>Notice to an employee of said department on December 2 at noon to appear on December 4 at noon and answer or explain charges of incompetence, neglect of duty, etc. preferred against her as ground of removal cannot be held unreasonable because affording insufficient time to prepare to answer or explain the charges; and, where the employee did not appear at the time and place designated or ask for more time and it appears that she must have known then as well as later what answer or explanation she had, the application will be denied.</p>

<p>Municipal corporations — Powers and exercise of governmental functions— Control of streets, etc.— Power to grant rights in streets — Grant of rights to lighting company.</p> <p>Electricity — Eights in streets — Subways.</p> <p>The commissioner of parks of the city of Brooklyn had authority on January 2, 1896, after the passage of L. 1888, eh. 583, giving to the department of public parks of Brooklyn full control of the Ocean parkway, and before the adoption of the Greater New York Charter (L. 1897, eh. 378), to grant to a corporation the right to erect poles, wires and necessary appliances for electric lights in the Ocean parkway.</p> <p>A contract made subsequently between the municipal authorities and the corporation, modifying the former grant by providing for underground wires, and made in good faith, but containing no provision limiting its operation to any period of time, will be held good for a period of twenty-five years, the limit prescribed by section 73 of said charter.</p>

<p>Motion for a peremptory writ of mandamus to the sheriff of Jefferson county.</p>

<p>Motion to set aside a writ of prohibition.</p>

<p>Landlord and tenant: Termination of relation — Breach of covenant or condition — Use of premises — Waiver of forfeiture; Re-entry and recovery of possession by landlord — Holding over after expiration of term — Termination for breach of covenant.</p> <p>Where the contracting parties provide that upon- the violation of a covenant and notice to the tenant the term of a lease shall expire, summary proceedings will lie to remove such tenant holding over.</p> <p>A provision that the tenant shall use the premises for a theatre and opera house of strictly the first class, for the production of standard modern plays, operas and attractions of the highest class, is not satisfied by the production of popular price (or second class) melodramas, vaudeville and burlesque though they may be the best of their kind and correctly designated first class melodrama, first class vaudeville and first class burlesque.</p> <p>The acceptance of rent by the landlord, after notice to terminate the lease had been given, for periods prior to the expiration of the term, is not a waiver of the breach of the condition under which the landlord was proceeding to terminate the lease.</p>

<p>Motion to vacate an order for the examination of a judgment debtor in supplementary proceedings.</p>

<p>Supplementary proceedings — Jurisdiction — Judge’s successor in office.</p> <p>An order for the examination of a judgment debtor in proceedings supplementary to execution, made by a justice of the City Court of the city of New York a short time before his resignation, is sufficient to require the judgment debtor to attend before his successor in office, sitting at the same term of the court and at the time and place designated in the order.</p>

Application by judgment creditor for an order committing a judgment debtor in proceedings supplementary to execution to the county jail.

<p>Supplementary proceedings: Receivers—-Appointment—-Grounds of objection — No property discovered; Costs — Liability of judgment creditor.</p> <p>Exemptions — Persons entitled to exemption; Property exempt.</p> <p>A desk, counter, two chairs, three wagons, two sets of harness and a Dutch collar, not shown to be worth over $250, owned by a judgment debtor who is a widow and supports herself and five children from an income ranging from -nothing to fourteen dollars a week derived from an express business conducted by her together with less than ten dollars in the bank are exempt from execution, and, where that is all the property discovered, a motion for a receiver of the judgment debtor in supplementary proceedings will be denied and the proceedings dismissed with ten dollars costs.</p>

<p>Motion to enforce an attorney’s lien.</p>

<p>Former adjudication — What matters are concluded — Matters actually litigated and determined — Service of process in former action.</p> <p>Where, in an action brought in New Jersey upon a judgment entered upon defendant’s default in an action brought in the City Court of the city of New York, he is defeated upon the issue that the court had no jurisdiction to enter the judgment because he had not been served with the summons therein, the decision of the New Jersey court is res adjudicata upon a motion to set aside the service of the summons in the City Court action and to vacate the judgment entered therein by default.</p>

Motion by defendant to set aside the service of the summons and complaint on the ground that the process server resorted to trickery and device in order to serve same.

<p>Motion to vacate service of a summons upon a foreign corporation.</p>

<p>Motion to require plaintiff to give security for costs.</p>

<p>Arrest on mesne process — Motion to vacate order — Motion on plaintiff’s papers — Designating defendant by fictitious name and omitting to state facts.</p> <p>Where a motion to vacate an order of arrest is founded on the papers upon which the order was granted, it is immaterial whether the .defendant was arrested or not.</p> <p>An affidavit is insufficient as the foundation for an order of arrest which designates the defendant by a fictitious name where the plaintiff knows his true name and where it omits to state any facts from which the alleged cause of action arises.</p>

<p>Attachment — Motion to vacate attachment — What questions determined on motion.</p> <p>The court will not pass upon the merits of an action on a motion to vacate an attachment unless it is clear that the complaint is so defective that the plaintiff must ultimately fail in the action; but the jurisdictional facts upon which the attachment is granted may be attacked and, where an attachment was granted on the ground of defendant’s non-residence and he appears to be a resident, the attachment will be vacated.</p>

<p>Injunction — Preliminary injunction — Grounds and matters considered— In general — Mandatory order.</p> <p>Though the cutting of an arched opening through the wall of the building upon demised premises was unjustifiable and constituted waste, a mandatory injunction will not be granted pendente lite to compel the defendant to seal up the portions of the wall which he has cut, where the complaint is framed upon the theory of a continuing trespass, inapplicable to the facts of the present case, and no facts are alleged showing an impairment in the safety of the building, or from which an irreparable injury may flow to the plaintiff, and it is not apparent that a needless multiplicity of suits may be avoided, nor are any special circumstances alleged that call for such relief.</p>

<p>Motion for an injunction.</p>

<p>Motion for the delivery of a cheek. The opinion states the case.</p>

<p>Motion for a bill of particulars.</p>

<p>Motion for a discovery and inspection of the hooks of defendants.</p>

<p>Discovery — Inspection of books, papers, etc.— Right to remedy — When allowed in general — In action by Attorney General to prevent monopoly.</p> <p>In an action by the people, based upon the alleged maintenance of a monopoly in the sale of ice, the Attorney General, having been given by law a drastic remedy for the examination of witnesses .and books, papers and documents, stands upon an application in the action for inspection and discovery in an attitude analogous to that of one who had the right before the commencement of the action to an inspection of the papers Sought and should not be subjected to the strict rules that might obtain where a different relationship between the parties existed.</p> <p>It will not he assumed that the Attorney General is prompted by improper motives in making such application upon mere assertions to that effect in defendant’s affidavits unsupported by facts or circumstances.</p> <p>In such an action, wide latitude in examination must be given, ' extending not only to the very transactions attacked but to -the previous history of the corporation, including its organization and transactions subsequent thereto in connection with which an illegal scheme to prevent competition might be inferred.</p>

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

<p>Motion by defendant to strike out certain allegations of the complaint.</p>

<p>Pleading — Supplemental pleadings — Supplemental answer — Setting up release — Terms.</p> <p>In an action to recover damages for false imprisonment, defendant’s motion to set up by way of supplemental answer a general release will not be denied because the action has been set down for trial and marked ready, but not in fact reached, where it does not appear that plaintiff has been prejudiced by the delay.</p> <p>Nor will the motion be denied because the,affidavit upon which it is founded was made by the "defendant’s attorney when the facts stated were within his knowledge.</p> <p>Such motion should be granted upon payment by defendant of costs to the date of his application.</p>

Motion by a creditor for leave to intervene in action brought by the surety upon a deceased administrator’s bond for the settlement of his accounts and' the ascertainment of its liability.

<p>Motion by the plaintiff to vacate order removing cause to Federal court.</p>

<p>Calendar — Order on calendar — Preference — By special order.</p> <p>In an application for a preference, in an action against a carrier to recover damages for personal injuries, based upon an affidavit of the plaintiff’s physician that plaintiff can live but a short time and cannot be cured; that his condition has become worse and the injuries received have been effective in shortening his life; but where the affidavit specifies no fatal injury, nor form of disease, nor the character of alleged internal injuries, and the opinion expressed as to the duration of plaintiff’s life is not corroborated and no immediate necessity or compelling circumstance is shown, the application should be denied.</p>

<p>Calendar — Order on calendar — Preference — Loss of right.</p> <p>Where a cause is entitled to preference under section 791 of the Code of Civil Procedure and also to be advanced to the special calendar under Hule 2 of the City Court of the city of New York, the latter right is not lost by the exercise of the former right and a motion therefor should be granted.</p>

<p>Motion to advance cause to special calendar for trial.</p>

<p>Costs: When allowable — Several defendants — Defendants as to whom complaint is dismissed; Determination of right to and amount of costs — Application for and determination of right to costs — Necessity for order.</p> <p>Where the complaint is dismissed as to a defendant who answered separately, costs are in the discretion of the court;, and a judgment entered in such a case, including costs where none have been awarded, should be corrected on motion.</p>

<p>Motion to correct judgment.</p>

<p>Bankruptcy — Discharge of bankrupt: Debts affected — Debts improperly scheduled; Judgments — Canceling judgment against bankrupt.</p> <p>On a motion made by a bankrupt pursuant to section 1268 of the Code of Civil Procedure to cancel a judgment against him, upon the ground that he has been granted a discharge in bankruptcy, the burden of proof is upon Mm to establish that the debt was duly scheduled or that the creditor had notice or actual knowledge of the proceedings in bankruptcy.</p> <p>Where in a bankrupt’s schedule the office address of a judgment creditor in the city of New York is given as his “ residence ” when in fact he resided at Oyster Bay, N. Y., the debt is not duly scheduled; and, where it further appears that the creditor had no notice or actual knowledge of the proceedings in bankruptcy, a motion by the bankrupt to cancel the judgment upon the ground that he had been discharged must be denied.</p>

<p>Negotiable instruments — Protest — Form and requisites of certificate — Absence of seal.</p> <p>A certificate of the protest of a foreign bill of exchange is no proof of the drawee’s refusal to accept or pay the bill, unless properly authenticated by the seal of the officer before whom the protest was made.</p> <p>In an action upon an alleged protested bill of exchange, drawn upon a resident of Brazil where the law provides that “bills of exchange must be protested before the proper protest officer, if there be such,” the certificates of protest offered were not authenticated under seal and it did not appear whether or not there was in fact any " proper protest officer ” nor whether according to the law of Brazil the officer before whom protest was made had a seal or was required to use one in taking protests, held, that the liability of the drawer of the bill was not established.</p>

<p>Motion by the defendants, upon the trial justice’s minutes, to set aside the verdict and grant a new trial on all the grounds specified in section 999 of the Code of Civil Procedure.</p>

<p>Corporations — Officers and agents — Transactions between corporations and officers, etc. — Liability of officer to account for profits.</p> <p>An officer of a corporation who purchases goods for it, from a firm of which he is a member, must account to the corporation for the profits of the transaction, where it appears that his connection with the firm was concealed from the corporation.</p>

<p>Discovery and inspection — Examination of party before trial — Physical examination — Mot allowed in suit for breach of promise to marry coupled with allegation of seduction.</p> <p>An action for damages for breach of promise to marry is not an" action for a personal injury, although the complaint alleges that plaintiff was seduced by and was pregnant by defendant; and he is not entitled to an order for the physical examination of plaintiff under section 873 of the Code of Civil Procedure.</p>

<p>Easements — Nature and creation — Creation by implication — Reference to map.</p> <p>Injunction — Who and what may be enjoined — Interference with property rights by.persons — Interference with right of way.</p> <p>Where the title of the property of both plaintiff and defendant came from a common grantor, each deed referring to a map duly filed of the original property showing S. avenue laid out as a street, and the description in each deed bounding the respective properties by the street as laid down upon said map, the conveyance to plaintiff secured to him an easement or right of way in the strip of land designated in the deed and on the map as S. avenue as an appurtenance to the land conveyed; and thereupon plaintiff acquired the right to insist at all times that the avenue be kept open and unobstructed and is entitled to an injunction, restraining the defendant from making an excavation across it, thus destroying or impairing its use and enjoyment by plaintiff.</p>

<p>Jurisdiction—Jurisdiction of particular courts — City and Marine courts — Action by receiver in bankruptcy.</p> <p>The City Court of the city of New York has jurisdiction in an action to recover the purchase price of goods sold to defendant as receiver in bankruptcy of a domestic corporation, for use in carrying on its business as authorized by an order of the bankruptcy court.</p>

<p>Foreclosure of mortgages on land — Foreclosure by action and sale — Pleading and trial — Evidence — Burden of proof — Effect of seal.</p> <p>Evidence — Burden of proof — General principles — Effect of seal on mortgages.</p> <p>Mortgages — Construction and effect — Option to declare mortgage due.</p> <p>Limitation of actions — Accrual of cause of action — Time specified in agreement — Option to accelerate payment.</p> <p>In an action to foreclose a mortgage upon real estate, where the defendant alleges that the mortgage was executed without consideration, the burden is upon him to overcome by proof the presumption of consideration created by the seal upon the mortgage.</p> <p>A provision in a mortgage that, upon .default in the payment of interest, the whole amount shall become due immediately at the option of the mortgagee is for his benefit and cannot be taken advantage of by the mortgagor, either to permit him to pay the mortgage debt, or to set the Statute of Limitations running, before the time designated for payment.</p>

<p>.Negotiable instruments: Bona fide holders — What constitutes — General rules — Presumptions and burden of proof; Parting with value — Discounting and giving credit: Actions — Evidence — Sufficiency.</p> <p>Where the payee in a note negotiates it in breach of faith, the burden is upon the holder to show that it acquired title as a holder in due course.</p> <p>Where the corporation with which the note was negotiated gives credit for part of the amount of the note upon an old account, it is not, to that extent, a holder for value. And where it does not appear that the payee is responsible, or that the maker was known to the officers of the corporation, and no inquiry is made as to the maker of the note and the circumstances under which the payee acquired it, good faith is not established.</p> <p>Where it appears that the plaintiff, a national bank, upon receiving the note, credited the amount of it to the corporation from which it was received, which had a general account at the bank, but it does not appear what the condition of the account was nor whether the entire proceeds of the note were not standing to the credit of the corporation from whom the plaintiff received it when the latter first had notice of the fraud of the payee, the plaintiff has not shown that it parted with value for the note without notice of the fraud.</p>

<p>Municipal corporations — Police department — Compensation — During suspension.</p> <p>Greater New York Charter, §§ 292, 302.</p> <p>A police captain in the City of New York, suspended without pay under the provision of section 292 of the Greater New York Charter, and, upon the trial of the charges, convicted as to several of them and sentenced to a fine of thirty days’ pay, is not entitled to pay during the period of suspension; and section 302 of the Greater New York Charter, giving the police commissioner power to punish by suspension without pay and providing that not more than thirty days’ pay shall be forfeited for any offense, was not intended to qualify the power conferred by section 292 to suspend without pay pending the trial of charges.</p>

<p>Demurrer to complaint.</p>

<p>Action for partition.</p>

<p>Motion for a verdict.</p>

Trial of the issues of law arising upon a demurrer to the complaint and motion for an injunction pendente lite in a taxpayer’s action.

<p>Trusts — The trustee, appointment, qualification, resignation and removal — Removal of trustee — Grounds.</p> <p>The power to remove a testamentary trustee should be exercised sparingly and only where there is a clear necessity for interference to save the trust property.</p> <p>Where no want of integrity or capacity on the part of the trustee appears, and the security of the property is not in danger, and the remaindermen, whose interest is greater than the life tenant’s, do not object to the conduct of the trustee, and one of the remaindermen, having a one-third interest in the fund, subject to the estate of the life tenant, is the wife of the trustee; and where the trustee has acted in good faith and generally observed excellent care and sound discretion, and the estate has sufiered no loss from his investments during the ten-year period of his trusteeship, he will not be removed at the suit of the life tenant, though his delay in converting certain securities into cash might invite criticism.</p>

<p>Action for specific performance.</p>

<p>Parties: Plaintiffs — One or more suing for benefit of all — Number of parties and community of interest; Defendants — Who must' be joined — Unnecessary parties.</p> <p>In an action brought by the plaintiff for the’ benefit of itself and all others similarly situated, where the plaintiff alleges its ownership of mills and water rights on a certain race on the north side of Seneca river, supplied by a wing dam, a,nd that farther up the stream is another dam supplying another race, under agreements giving to the owners on each race one-half the flow of the stream; that the defendant, having acquired rights in the race supplied by the upper dam, wrongfully raised it so as to divert more than half the stream and deprived the plaintiff and the proprietors on the lower race of their due proportion of the water, and where plaintiff demands judgment requiring the defendant to restore the dam to its former condition and enjoining it from interfering with the due flow of water into the lower race, with damages, held:</p> <p>The proprietors upon the lower race, though holding their respective lands in severalty, have a QqpaiQqfl qr general interest respecting the invasion of their rights by the wrongful act of the defendant which would authorize them all to join as plaintiffs; and each proprietor can sue alone; and one may sue for all where there are three persons or corporations having such common interests.</p> <p>The other proprietors along defendant’s race, who do not appear to claim any rights in the additional water thus diverted, are not necessary parties to the action.</p> <p>Whether persons who are alleged in the complaint to have riparian rights above the upper dam and who are alleged to be injured by the setting back of the water in the stream in consequence of the raising of the upper dam are entitled to the benefit of plaintiff’s suit, quwre.</p>

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

<p>Carriers—Statutory penalties enforceable against carrier — Liability to penalty for- charging excessive fare — Conductor’s mistake as to previous payment of fare by passenger.</p> <p>Where a street car conductor demands and receives of a passenger a five-cent fare under the mistaken belief that no prior fare had been paid for the ride, the railroad company is not liable to the penalty provided by section 39 of the Railroad Law (L. 1890, ch. 565) for charging excessive fare.</p> <p>Plaintiff’s remedy is an action to recover the overcharge and damages resulting therefrom.</p>

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

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

<p>Justices of the peace — Procedure in justices’ courts — Pleading — Amendments — Of complaint.</p> <p>Conversion — Parties, pleading and evidence — Weight and sufficiency of evidence.</p> <p>Upon the adjourned day of an action upon an account stated, a justice of the peace, under section 2944 of the Code of Civil Procedure, may permit an amendment changing the action to one for the conversion of a horse.</p> <p>Where defendant’s counsel upon the granting of the amendment withdrew from the ease and the evidence shows that the plaintiff through her agent had possession of the horse; that it was rented to the defendant upon his promise to return it, which he failed to do; that, upon plaintiff’s agent demanding the return of the horse, the defendant requested him not to make him any trouble and said that he would settle for it, the judgment in plaintiff’s favor will be affirmed.</p>

<p>Municipal corporations — Officers and agents — Officers and employees or agents other than mayor and common council — Compensation—Remedies of officers and employees to recover salary — Counsel assigned in capital cases in the county of New York. Mandamus — Mandamus against public officers — Payment of debts and claims — Compensation of counsel ássigned in capital cases in the county of New York.</p> <p>In the city of New York a certificate granting compensation to assigned counsel in a capital case is payable by the comptroller out of the court fund, and payment thereof may not be enforced by execution.</p>

<p>Accord and satisfaction — Form and requisites — Disputed demands — Giving check upon condition.</p> <p>Where a dispute existed between the parties as to the amount due from-the defendants to the plaintiffs and the defendant gave the plaintiff a check for a certain sum, saying to him at the same time, “ That is all you will get,” to which the plaintiff replied, “I will credit your account” with the amount and the defendant left the check with the plaintiff, who used it and afterward returned a statement of account to the defendants, with a similar statement that the plaintiffs would credit the defendants with the amount,</p> <p>Held, that the offer of the check was upon condition that it should be received in full payment and that its acceptance by the plaintiff was in satisfaction of his demand and that the statement that the plaintiff would credit the defendants’ account with the amount of the check, made verbally when the check was delivered and subsequently reiterated in writing, did not affect the legal quality of the act of the plaintiffs in accepting the check.</p>

<p>Attorney and client — The relation with the client — Compensation — In general — Necessity of performance.</p> <p>Municipal courts — Procedure — Costs — Amount — To plaintiff in case of counterclaim.</p> <p>Where a plaintiff paid a sum of money to a lawyer on the latter’s agreement to procure the discharge of plaintiff’s friend, incarcerated in the city prison on a charge of burglary, and the lawyer fails to carry out his contract, the plaintiff is entitled to recover back the amount paid. ... .</p> <p>In an action in the Municipal Court of the city of New York, where the plaintiff claims less than fifty dollars and the defendant interposes a counterclaim of fifty dollars or over, and the plaintiff recovers judgment upon the non-appearance of the defendant, he is entitled to fifteen dollars extra costs; but, where the defendant appears and litigates the counterclaim and the plaintiff succeeds, he is not entitled to recover such extra costs.</p>

<p>Bankruptcy — Validity of transfers and preferences, etc.— Right of assignee to set aside fraudulent conveyances — Suits at law and in equity.</p> <p>Municipal courts — Jurisdiction — Municipal Court — Suit in equity.</p> <p>An action by a trustee in bankruptcy, to recover moneys paid to a creditor by a stock exchange, which, purporting to act under its rules and regulations, collected debts due the bankrupt and applied them upon certain liabilities, within four months prior to the filing of the petition in bankruptcy, is an action in equity of which the Municipal Court of the city of New York has no jurisdiction.</p>

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

<p>Corporations — Rights of stockholders and actions by them — In general— Right to inspect transfer and stock books of corporation — Who are stockholders — Stockholder’s reason for desiring inspection.</p> <p>A stockholder of a corporation has the right to examine its stock book, although the stock he holds was turned over to him by another stockholder in order to enable him to procure an inspection of the stock book for the purpose of obtaining information as to stockholders in order that he might communicate with them for the purpose of buying from or selling stock to them.</p>

<p>Corporations: Officers and agents — In general — Miscellaneous matters — Liability for refusal to transfer stock; Stock — Transfer of stock — Jurisdiction of equity to compel transfer.</p> <p>A person who has purchased stock in a corporation and has sent his certificate to the proper officer in' order to have it transferred on the books and a new certificate issued to him cannot maintain an action against 'the, officer personally for his refusal to make the transfer. His cause of action is against the corporation.</p>

Appeal by the plaintiff from an order of the City Court of the city of New York, denying a motion for a retaxation of costs.

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

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

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

<p>Estoppel — Equitable estoppel and estoppel in pais — Facts creating estoppels — Clothing another with title or right — Instrument signed by tenant at landlord’s request.</p> <p>In summary proceedings to recover the possession of demised premises by the grantee of the original landlord on the ground that the tenant is holding over after the expiration of his term, where the tenant claims to be holding under a verbal lease for a year and alleges that, while in possession under such a lease, to oblige his landlord, he signed a monthly lease, but claims an oral agreement by which he is to continue in possession for a year, it is error tc exclude proof offered by the plaintiffs that they purchased the premises in reliance upon the written monthly lease signed by the defendant, since such evidence might show circumstances that would estop the tenant from asserting a yearly tenancy.</p>

Appeal by defendant Mary Schafer from a judgment in favor of the plaintiff for $575.22, rendered in the Municipal Court of the city of New York, second district, borough of the Bronx.

<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>

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

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

<p>Mechanic’s liens — Foreclosure — Pleading — Complaint — Money Sue.</p> <p>In an action to foreclose a mechanic’s lien, the absence of any allegation that any sum was due or remained unpaid from the owner to" the contractor, or from the contractor to the subcontractor, is fatal to the sufficiency of the complaint, under section 47 of the Lien Law (L. 1897, ch. 418).</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>Appeal by the defendant from a judgment of the Municipal Court of the city of New York, twelfth district, borough of Manhattan, in favor of the plaintiff for $109.50.</p>

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

Appear by the defendant from a judgment overruling a demurrer to the complaint rendered in the Municipal Court of the city of New York, second 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.

<p>Appeal from a judgment for $523.21, damages, and $34.31 costs, amounting altogether to $557.52, recovered for referee’s and stenographer’s fees, by the respondent, as assignee, against the appellants and one Marie L. Davies, on January 31, 1906, in .the Municipal Court of the city of New York, eleventh district, borough of Manhattan. The defendant Davies made default on trial and the above named appellants alone appeal.</p>

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.

<p>Carriers — Statutory penalties enforceable against carrier — Liability to penalty for refusing transfer ticket — Reasonableness of carrier’s regulations.</p> <p>A rule of a street railway company requiring a passenger to ask for a transfer at the time he pays his fare is a reasonable regulation.</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.

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

<p>Depositions—Depositions on commission—Application for commission —Who may make affidavit; Statement of nature and materiality of testimony.</p> <p>Upon an application by plaintiff for a commission to take the - testimony of defendant’s wife who is not within the State, the materiality of her testimony is sufficiently shown by the affidavit of plaintiff’s counsel, stating facts showing such materiality upon information derived from defendant’s son; and the affidavit of defendant’s son will not be required.</p>

Motion to dissolve a temporary injunction restraining the defendant from laying tracks upon North Portage street bridge in the village of Westfield.

<p>Return of an order to show cause why an injunction should not be continued pendente lite.</p>

<p>Alimony: When alimony will be awarded — Effect of wife’s denial under oath: Procedure — Hearing and evidence — Issues determinable; Second application — How regarded.</p> <p>Upon the renewal of a motion by the plaintiff in an action for divorce for a counsel fee and alimony during the pendency of the action, the technical rules usually applicable to the renewal of a motion should not be enforced; but it should be regarded as a re-argument, with opportunities to each of the parties to submit additional affidavits.</p> <p>Where the counter-charges of defendant against the plaintiff are absolutely denied by her and the affidavits present a debatable issue as to the actual residence of the parties, to be left to the trial of the action for determination, a reasonable allowance for alimony and counsel fee should be granted.</p>

<p>Motion for a reargument. The opinion states the facts.</p>

<p>Action to foreclose a mechanic’s lien.</p>

<p>Costs — Costs on appeal — Costs to abide event — Appellant unsuccessful on new trial.</p> <p>In an action in the City Court of the city of New York, where* the plaintiff recovers 'judgment for more tha'n fifty dollars which is reversed on appeal to the Appellate Term, with costs to the appellant to' abide the event, and, upon a second trial, the plaintiff recovers less than fifty dollars, he is not entitled to costs of the first trial nor to costs of the appeal; but the defendant is entitled to costs of appeal and of both trials.</p>

<p>Pleading — Amendments — Amendments of course—Effect of amendment.</p> <p>Judgment — Opening or vacating on motion — Grounds — Subsequent amendment of pleading.</p> <p>Although a defendant who serves his answer by mail has forty days within which to amend it, his right is without prejudice to proceedings already had; and where, in the meantime, the cause has been regularly noticed for trial and he has suffered default, his subsequent amendment of his answer will not render irregular the judgment against him, and his motion to set the same aside Will be denied.</p>

<p>Motion to vacate judgment against defendant entered on decision of Judge Smith of the Superior Court of Buffalo, handed down December 31, 1886.</p>

<p>Replevin — Trial, judgment, enforcement of judgment and review — Enforcement of judgment.</p> <p>Under a judgment in favor of the plaintiff in replevin, he is required to take the chattel, if possession thereof can be had, and is compensated in damages for its depreciation or injury while in defendant’s possession down to the time of the trial.</p> <p>The value of the chattel at the time of the trial must be established by the judgment and, for any subsequent injury thereto by defendant, the plaintiff would have a right of action.</p>

<p>Motion to set aside a verdict and for a new trial.</p>

<p>Mew trial — Grounds: Misconduct of parties, counsel, or witnesses" Misconduct of adverse counsel: Verdict or findings contrary to law or evidence — In general — Where neither Mas, passion, prejudice nor corruption appears.</p> <p>Verdicts should not ordinarily he set aside as against the weight of evidence unless there is something in the record which indicates that the jury was influenced by bias, passion, prejudice or corruption.</p> <p>It is not to he assumed that a jury is influenced by every lapse in speech or impropriety of conduct on the part of counsel; and, where they are all met by reproof from the court and the court instructs the jury to disregard them, they should not he regardéd as ground for granting a new trial unless they were such matters as would influence the court itself.</p>

<p>Guaranty — Requisites and validity—Guaranty distinguished from other contracts — From original contract to pay for goods.</p> <p>Contracts — Interpretation of contract — Particular words and phrases — In general — “ Guarantee ” — Limitation as to amount.</p> <p>An instrument, "by which the signer guarantees E. Brothers that whatever materials they deliver to C. the signer will pay for “ Sixty days after each delivery. The amount not higher than $250 ”, is a distinct original contract to pay for the materials, limited to $250 in amount; and the signer is not liable for goods delivered to C. in excess of that -limit.</p>

<p>Certiorari to review the assessment of the relator for taxes by the board of taxes and assessments of the city of New York.</p>

The relator seeks by certiorari to review the action of the board o,f supervisors of Nassau county in reassessing- and relevying taxes for 1896 and 1897 on certain lands of the relator, situate at New Cassel, in the town of North Hempstead, county of Nassau. At the time of the original assessment this was a part of the county of Queens and was erected into the county of Nassau by chapter 588, Laws of 1898.

<p>Proceeding for a review of the action of the commissioners of taxes of the city of New York and for a correction of an assessment made by them. The opinion states the facts.</p>

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

<p>Common schools — Schools, districts and sites — Who entitled to instruction.</p> <p>Mandamus—Procedure and relief — Parties — Members of board and their successors.</p> <p>An orphan child, living in the family of a married woman as a member thereof, entrusted to her care by a charitable society having lawful custody of it, under an agreement to pay for its board and clothing not limited as to time and terminable at the pleasure of either party but under circumstances from which it may be inferred that the arrangement is likely to be permanent, resides in the district where he is living within the meaning of section 36 of title 7 of the Consolidated School Law (L. 1894, eh. 556) and is entitled to attend the public schools of the district without charge or compensation.</p> <p>Where an alternative writ of mandamus runs to the members of a board of public officers in their personal names, the peremptory writ, issued after the terms of two members have expired and others have been elected in their places, ma.y be directed to and enforced upon the members constituting such board generally.</p>

<p>Municipal corporations — Property rights, title, etc.— Title to bridge over Harlem river.</p> <p>Railroads and railroad companies — Interest in lands and right of way — Construction of grant by State.</p> <p>Lands taken by the city of New York and the county of Westchester under L. 1858, eh. 291, providing for the removal of obstructions from the Harlem river and for a free bridge over the same, vested in the municipalities named in fee without any right of reversion remaining in the original owner.</p> <p>A grant" by the State to a railroad company, will not be construed to include lands not within the terms of the grant which have been occupied for more than twenty years by municipal corporations for a public bridge under a claim of title thereto.</p>

<p>Intoxicating liquors; In general — Construction of statute in general: Prohibition of traffic in certain localities — Proximity of State hospital.</p> <p>Constitutional law — Deprivation of life, liberty, or property, etc.— What is liberty or property — Right to traffic in liquor.</p> <p>The' provisions of the Liquor Tax Law that traffic in liquor shall not be permitted within a half mile of any building, premises or lands occupied as a State hospital are" to be construed liberally in favor of the institution for whose protection they were intended and render such traffic unlawful within the specified distance from contiguous lands held by and belonging to a State hospital and cultivated for garden truck.</p> <p>A person engaged in liquor traffic has no vested rights in it that cannot be controlled or prohibited by the police power of the State.</p>

<p>Application for warrants for imprisonment of defendants for their refusal to submit to examination before the commissioners of accounts.</p>

<p>Motion by judgment debtor to set aside order in supplementary proceedings.</p>

<p>Sales — Remedies of seller — Action for price — Defenses—Fraud of seller.</p> <p>In an action to recover the price of goods sold and delivered to the defendant and used by the defendant in its business it is no defense that the plaintiff agreed to pay defendant’s purchasing agent a commission upon the goods at the time of the sale.</p>

<p>Evidence — Parol evidence — The general rule and its applications — Instruments incompletely expressing intention of parties — Instruments imposing obligation on one party only.</p> <p>A writing signed by the plaintiff, agreeing to sell and deliver to defendant goods manufactured by him at stated prices during a certain period of time and containing no statement as to any consideration nor agreement on the part of defendant, does not appear to be a complete contract; and it is competent to prove by parol evidence that the consideration required to support the plaintiff’s promise was defendant’s agreement to use its best endeavors to sell the plaintiff’s product and to advertise and send out salesmen.</p>

<p>Joint agreements and liabilities—On contracts — In general —Several contracts.</p> <p>A contract by which three stockholders of a banking corporation agree to take up and carry for defendant one thousand shares of the stock of the corporation, which he agrees to take up within a certain time at a certain price and which the contract provides is to be carried by the parties named, pro rata, according to the amount of their respective interests in the banking corporation, is the joint and several contract of the three parties; and one of them, whose stock the defendant failed to take up in accordance with his agreement, may maintain an action against him without joining the others.</p>

Action by a stockholder of defendant brewing company .for the surrender and return of certain stock and bonds alleged to have been illegally issued to the individual defendants.

<p>Equity — Nature and grounds of jurisdiction — Equitable defenses in actions at law.</p> <p>Reformation of instruments — Right to remedy — Deed conveying wrong premises.</p> <p>A conveyance which by mistake does not describe the whole lot that the grantor intended to convey followed by the entry of the grantee into the entire premises and the possession thereof under claim of title for more than twenty years operates as a transfer of the title to the whole lot intended to be conveyed to the grantee who, as well as those claiming under him, may defend an action of ejectment brought against him without previous resort to a court of equity to reform his deed.</p>

<p>Action to foreclose a mortgage.</p>

<p>Action for the purpose of declaring null and void two annuity agreements, which, were made and entered into .between defendant and one Robert T. Hicks, now deceased.</p>

<p>Action by a trustee in bankruptcy to set aside a transfer of household furnishings made by the bankrupt to his wife.</p>

<p>Action by plaintiff to recover of defendants the balance of the tax due it for the year 1902 from the Patten Vacuum Ice Company, a New Jersey corporation.</p>

<p>Motion to set aside a verdict and for a new trial.</p>

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

<p>Injunction — Preliminary injunction — Grounds and matters considered — When granted in general.</p> <p>Landlord and tenant — Termination of relation — Under landlord’s option — Good faith required.</p> <p>Where a ten-years lease of land under water in the city of New York, where the tenant conducts a bathing establishment with privilege of renewal for another ten years at an increased rental, provides that in case the board of docks should determine to proceed with the building of wharves in the section or district of the water front embracing the property in said lease described, according to any plan then or thereafter approved, and that it should be necessary for such purpose to terminate the interest of the tenant in the property, said lease should be terminated on written notice of a resolution of the board of docks to that effect, the city’s right to terminate the lease must be exercised in good faith and upon fair grounds and not capriciously or arbitrarily. •Where the tenant claims to have expended over $20,000 in improvementa upon the property, and before the expiration of the first term a notice was served upon him by the commissioner of docks that he had adopted a plan for the improvement of the water front of the leased premises; that said plan had been duly approved, and that he had determined to proceed with the work of building docks and a ferry slip pursuant to such plans, and where it appears that there is no necessity for the contemplated public improvement and no attempt has been made to carry out the proposed plan, the tenant, in an action against the city to restrain it from interfering with his possession under the lease, will be granted an injunction pendente lite.</p>

Action to restrain the maintenance of certain ornamental projections on front of defendant’s house and to compel their removal. The opinion states the case.

<p>Municipal corporations: Powers and exercise of governmental functions— Control of streets, etc.— Power of New York city — Eights of sub-surface occupants: Property rights, etc. — Title of New York city to streets.</p> <p>The fee of Broadway in the city of New York is in the municipality, in trust for the public, whose rights in the street include its use for a sub-surface or tunnel railroad.</p> <p>A property owner on said street may maintain vault spaces under the sidewalk in front of -his property only by virtue of a permit or license from the city, revocable whenever the city or public use requires such spaces.</p> <p>Where plaintiffs were the owners of premises on Broadway and licensees of the vault spaces under the sidewalk of said street extending along almost- the entire front of the premises 'and out as - far as the curb line, and the underground railroad known as the “ Subway ” as actually constructed takes over 1,000 square feet of such vault spaces, the threatened removal of a brick wall, constructed by plaintiffs not upon their fee but within the line of said street and constituting a part of the westerly wall of the station and standing between the platform of said station and steps or stairway leading therefrom to plaintiffs’ building, may not be restrained by injunction where neither the defendant Bapiil Transit Company nor the defendant board of rapid transit • commissioners of the city of New York asserts the right to. send passengers through the building of plaintiffs without their consent but both contend that the proper location of said wall is near the top of said steps and along the building line.</p>

<p>Pleading — Complaint or declaration — Statement of cause of action in general.</p> <p>In an equitable action brought by the holder of a life insurance policy, issued by a corporation whose assets the complaint alleges the defendant “ took over,” where the complaint also alleges that defendant assumed all the contracts of life insurance of such corporation and plaintiff seeks to enforce the provisions of Ms policy, but no contract of insurance with the defendant is set up and it does not appear' whether defendant is a new corporation, or a reorganization of the old one, nor whether the assumption of the previous insurance contracts was hy an agreement between two distinct companies or by operation of the provisions of law relating to the reorganization of insurance companies, and the terms of plaintiff’s alleged contract of insurance are not set out, the complaint does not state facts sufficient to constitute a cause of action.</p>

<p>Judgment — Collateral attack — Want of jurisdiction — Presumptions as to jurisdiction.</p> <p>In an action upon a judgment of a superior court of general jurisdiction in another State jurisdiction of the person of the defendant is to be presumed; and the mere absence from the return of the officer who served the process of a statement of all the facts required to show compliance with the statutes and the acquirement of jurisdiction of the defendant will not destroy the presumption.</p>

<p>bridges: Establishment, erection and maintenance — Grounds and structures included as part of bridge: Use and occupation — Actions — Questions of law and fact — Negligence.</p> <p>A structure of masonry between a bridge crossing the Mohawk river and a bridge crossing the Erie canal, a distance of 479 feet making a continuous roadway running north and south, built across lowlands covered with running water when the river overflows its banks, and where pools of water usually stand, having perpendicular walls on either side rising twelve to fifteen feet from the ground below with five arches of twelve feet span, having at the top a roadway of dirt and gravel whose surface is slightly above the coping of the walls on either side and practically on a level with the floors of the canal and river bridges, the width of the structure being 41 feet, with a railing on each side about 3 feet from the outer edge leaving a space within the rails for travel 35 feet wide, is a bridge within the meaning of section 142 of the Village Law and is under the control of the commissioner of highways of the town in which it is situated.</p> <p>In an action for personal injuries against the town, where it appears that one of the rails, about 12 feet long, along the easterly side of the bridge, disappeared some months before the happening of the accident to the plaintiff; that on the same side, substantially on the same level as the part used by wagons, was a smooth path used by bicycles; that the road was much traveled by teams, pedestrians and wheelmen; that the plaintiff one morning while crossing the bridge, when nearly opposite the point from which the rail had disappeared, overtook three pedestrians, one of whom after having stepped out of the way stepped back again by mistake and a collision occurred and the plaintiff was thrown from his wheel over the side of the wall and received serious injuries, held that the question of negligence should be submitted to the jury and the defendant’s motion for a nonsuit should be denied.</p>

<p>Wills — Interpretation and construction — Terms defining the nature and quality of estates or interests — Future interests and vesting, etc.— General rule as to vesting — When contingent.</p> <p>Partition: Procedure for partition — Parties — Plaintiffs — Joinder of contingent remaindermen: Decision, judgment and relief — Costs and expenses.</p> <p>Where a testator gave to his widow the use of all his property real and personal, during her natural life or while she should remain his widow, and further provided that after she should be through with the use thereof if his son would take the same and pay to each of his three daughters a certain sum, he should have the use of the farm as long as he might live, but that he should have no power to sell or encumber the farm and at his death his children, should he leave any, should have the farm in equal shares, but if he should die without' "issue it should be divided equally among his daughters, and in case his son should not choose to pay the sums named to his daughters then the property should be divided equally among his four children, and where, during the life of the testator’s widow," his son conveyed his interest in the property by a deed expressing his intention to convey all his right, title and interest which he took under the will of his father or as his father’s heir at law, held:</p> <p>Under the will none of the testator’s children took a vested interest in remainder.</p> <p>The widow and one of the daughters could not maintain an action for the partition of his lands.</p> <p>The widow, if technically entitled to maintain an action of partition, could not join with her the testator’s children as parties plaintiff.</p> <p>It seems that, if the fee of the premises should be sold in an action for partition brought by the widow, the entire costs and expenses and accumulated taxes should be paid out of her share.</p>

<p>Wills — Interpretation and construction — Expenses of the estate, charges, advances and payment of debts and legacies — Hules and implications — Implied charges on land — When charge of legacy not implied.</p> <p>Where a testator gave to the legatee named in his will $5,000, “ to be paid to her as soon after my decease as possible in the judgment of my said trustee, and pending the payment to her of said sum she shall receive from my said trustee interest thereon ”, and by a residuary clause left the remainder of his property in trust to be divided into three parts in one of which the legatee had a contingent remainder; and where the testator gave the executor and trustee no power of sale, in tlie absence of extrinsic circumstances justifying the conclusion that the testator intended the legacy to be charged on his real estate, the" court will not find that such was his intention.</p>

<p>Action for partition. Edward H. -Senior died in 1868 seized of considerable real estate in Hew York and Putnam counties. His will contained the following provisions: " Second: I will, bequeath and devise all my worldly estate of whatsoever kind or nature, real, personal and mixed unto my dearly beloved wife Amanda Melvina Senior, for and during. her natural life, and after her death the said estate of which I may die seized, possessed of, or entitled to, both real, personal and mixed, I direct to be equally divided between our children who shall be then living, and in the event of the death of any of our children before the death of my dear wife, then such share which such Child would have been entitled to shall go to the issue or child or children of such of our deceased child or children.</p> <p>“It is my will and I so direct that my dear wife shall make especial provision for the comfort and support of our son Thomas S. Senior, and that the same or the cost of such especial comfort and support of our son Thomas, shall be a charge upon my estate during his, our said son Thomas’, natural life, and that he shall share with the rest of our children after the demise or death of my dear wife.”</p> <p>The widow was appointed executrix. With estate assets she purchased other real estate, the deeds running to her as executrix. She died in 1902. One son, Edward, predeceased her, leaving several children. In his lifetime judgments were recovered against said son and a receiver in supplementary proceedings was appointed of his property. His interest in the testator’s real estate was sold and conveyed by the sheriff under an execution and was also sold and conveyed by the receiver under an order of the Marine Court.</p> <p>Also during the lifetime of the widow there was sold and conveyed under execution to one Stillwell the interest of another son, Charles, not only in the property of which the testator died seized but also in the property which the widow had acquired as executrix.</p> <p>In 1874 certain other creditors obtained a judgment against Alfred, another son of the testator. In 1891 an order was made by the City Court granting leave to issue execution and execution was issued. The interest of the debtor in the testator’s real estate was sold and conveyed by the sheriff, and the same by mesne conveyances is claimed by the defendants Covin and Simpkins.</p> <p>In 1879 William T. A. Hart recovered a judgment against William and Theodore Senior. After a second execution in 1891, a reciver in supplementary proceedings sold the interest of the debtors in the testator’s real estate, pursuant to an order of the City Court.</p> <p>The executrix conveyed certain Downing street property to her daughter, purporting to be acting under a power of sale contained in the will. The deed expressed a consideration of $30,000, but none was in fact paid. Eighteen days later the daughter incumbered the Downing street property and also certain Forty-ninth street property with a blanket mortgage, the proceeds of which mortgage were simultaneously used in the purchase of the Forty-ninth street property. The daughter then reconveyed both properties to the executrix.</p> <p>The executrix conveyed to the son Thomas the homestead property in Putnam county, purporting to be acting in compliance with the directions contained in the will. The validity of this conveyance is attacked only by the purchasers at the receiver’s and sheriff’s sales.</p>

<p>Telegraph and telephone companies — Statutory penalties enforceable against companies — Penalty for not transmitting with impartiality and good faith.</p> <p>Where plaintiff, from a pay station of the defendant telephone company, called up its central office and communicated to the operator in charge the name of the party with whom he desired to talk and -then hung up the receiver and deposited the proper toll charge, and the operator, not being able to hear the coins register, refused to connect plaintiff with the other party until he had paid -the toll charge with the receiver off the hook, which was according to the established rule of the telephone company and the only way by which the operator could know that the toll had been paid, the telephone company is not liable for the penalty imposed . by section 103 of the Transportation Corporations Law (L. 1890, ch. 566), since the penalty thereby imposed is limited to acts of partiality or bad faith or to a preference.</p>

Action in equity for damages sustained by reason of the maintenance and operation by the defendants of an elevated railroad in front of the premises owned by the plaintiffs.

<p>Motion by the defendants for direction of verdict at the close of case.</p>

<p>Wills — Interpretation and construction — Terms creating legacies, etc. —Annuities — Right of election to take capital.</p> <p>Trusts — The beneficiary, his estate, rights and interest — Where trust is unauthorized by statute — Passive trusts.</p> <p>An annuity does not possess any element of a trust; and, where an executrix is directed by her testator’s will to invest a certain sum in the purchase of an absolute and .unqualified annuity, the annuitant may elect to take the capital sum instead of having it invested for the purpose of producing the annuity.</p>

<p>Wills — Interpretation and construction: General rules — General or primary intent controlling: Administration of estate and execution of powers, etc.— Rules and implications — Powers of sale or disposal implied — From necessity to manage and conserve estate.</p> <p>Life estates — Bights of life tenants as distinguished from those of remaindermen— Premiums-paid on investments.</p> <p>Suspension of power of alienation — Conditions determining validity of suspension — General requirements.</p> <p>A will provided: “ My said executors shall retain, lease and invest and keep leased and invested the remaining equal one twelfth part of said sixty six and two third per cent, of my estate in equal shares for the benefit of all of my grandchildren living at the time of my decease or. who shall be born thereafter and during the lifetime of either my daughter M. or of the youngest of my said grandchildren living at the time of my decease and shall pay or apply to the use of each of my said grandchildren the net income, rents and profits of one of said shares until my said daughter M. and the youngest of my said grandchildren living at the time of my decease shall both have departed this life at which time, that is to say, when both of them shall have departed this life, my said executors shall pay or transfer to each of the survivors of my said grandchildren and to the issue of each of my said grandchildren who may then have died leaving issue, the principal of one of said shares'.”</p> <p>The testator’s general scheme was to leave His property in trust for different lines of descendants; and, in each instance, except in the above clause, he carefully provided that, in case of the death of a beneficiary without issue, his share should vest in the survivors. A power of sale was given the executors and trustees, and it formed an integral part of the trust and'was indispensable and necessary to its proper management and conservation.</p> <p>In an action by the substituted trustee and administrator with the will annexed, brought for the construction of said clause, held:</p> <p>. The trust was specifically limited in duration to- not more than two lives and there was no unlawful suspension of the power of alienation.</p> <p>The share of the deceased grandchild who died after the testator and without issue should be treated as vested in the surviving beneficiaries named in said clause.</p> <p>The plaintiff as substituted trustee was vested with a power of sale.</p> <p>It was his duty to provide a fund from the interest or income of the estate to protect the principal of the trust fund against depreciation through investments at a premium.</p>

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

<p>Motion to set aside a judgment of conviction. The opinion states the case.</p>

<p>This action was brought in justice’s court to recover.the penalty incurred by the defendant’s nonpayment of a poll tax. (Section 65, Highway Law.) A judgment was taken therefor, and the defendant has appealed.</p> <p>The town of Plattekill has not within its boundaries an incorporated village, and its highways are maintained under the “Money System of Taxation.”</p>

<p>Proceeding upon the final settlement of the account of an administrator.</p>

<p>Executors and administrators — Debts and liabilities of the estate — In general — Funeral expenses.</p> <p>A father who orders the materials furnished and services rendered in connection with the burial of his son by an undertaker is liable therefor; and payment to the undertaker from the estate of the amount the surrogate deemed the reasonable funeral expenses in view of the condition and station in life of the decedent does not affect the right of the undertaker to recover from the father upon his express contract the difference between such.payment and -the market price of the services and materials.</p> <p>Gildersleeve, J., dissents.</p>

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

Appeal by the defendant from an order of the City Court of the city of New York, Special Term, granting the plaintiff’s motion for a new trial on the ground of newly discovered evidence.

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

Appeal by the plaintiff from an order of the Municipal Court of the city of Hew York, eighth district, borough of Manhattan, setting aside the verdict of a jury.

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.

Appeal by the plaintiff from an order of the City Court of the city of New York directing the plaintiff to accept a notice of appeal.

<p>Bailment — Conversion by bailee — Accidental loss without negligence.</p> <p>An action for conversion cannot be maintained for a mare accidentally killed while lawfully in the defendant’s possession.</p>

<p>Negotiable instruments — Accommodation paper — Contract of indorser to give credit — Measure of damages — Raised check.</p> <p>Negotiable Inst. Law (L. 1897, ch. 712), § 55.</p> <p>Where one, at the request and for the accommodation of the holder of a check, endorses it, so that the holder may obtain payment upon it and the holder does obtain payment upon it from the bank on Which it is drawn, such endorser is liable to the bank upon his endorsement.</p> <p>And where, in such a case, the check had, before such endorsement, been fraudulently raised, such endorser is liable to the bank for the difference between the original amount and the altered amount of such check.</p>

<p>Appeal by the defendant from an order of the Special Term of the City Court of the city of New York, granting leave to plaintiff to issue execution on a judgment after the expiration of five years.</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, second district, borough of the Bronx.</p>

Appeal by the defendant from an order of the City Court of the city of New York setting aside a verdict and granting a new trial.

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

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

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

<p>Appeal from a judgment of the Municipal Court of the city of New York, twelfth district, borough of Manhattan, overruling the defendant’s demurrer to the complaint.</p>

<p>Costs: Costs on appeal — Costs to abide event — Amount recovered as determining; Determination of right to and amount of costs — Review — Questions considered; Evidence generally.</p> <p>Where a judgment of the City Court of the city of New York against defendants is reversed on appeal, with costs ,to the appellants to abide the event, and on the new trial the plaintiffs recover judgment for less than $250, the plaintiffs are entitled to tax the costs of the appeal on the entry of final judgment.</p> <p>W'here the clerk taxes the costs of a party without notice having been given to his opponent and thereafter notice of retaxation is given, but there is no appearance by the opposing party nor any objection made to the costs as originally taxed, the clerk cannot of his own motion review his previous action and strike out items which he allowed upon his original taxation.</p> <p>Nor can the court review the taxation on motion and strike out items to which no objection was made before^the taxing officer.</p>

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

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

<p>Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of New York, third 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 plaintiffs after a trial before the court and a jury, and also from an order denying defendant’s motion for a new trial.

<p>Appeal: Judgments and orders appealable — In general — Judgments and orders taken by default; Time of taking — Notice of entry of judgment or order — Sufficiency of notice. - Costs — Determination of right to and amount of costs — Review — Questions considered; Evidence generally.</p> <p>An appeal does not lie from a judgment taken by default.</p> <p>If the judgment is an illegal one, the defendants’ remedy is by a motion to open their default; if the judgment is erroneously entered, the motion should be to vacate it.</p> <p>A notice of the entry of an interlocutory judgment of the City Court of the city of New York, printed on the cover in which the sheets of legal cap upon which the interlocutory judgment was typewritten were enclosed and on which cover were also printed the name of the court, the title of the action, the designation of the papers and the plaintiff’s attorney’s name and address, was sufficient to limit defendants’ time in which to comply with the terms of the judgment; and their objection that when the cover was folded the notice of entry was concealed is frivolous.</p> <p>Under section 3265 of the Code of Civil Procedure, only the items of a bill of costs objected to before the taxing officer can he called in question upon a review of the taxation.</p>

<p>Landlord and tenant — Rights, duties and liabilities in regard to the premises — Repairs, insurance and improvements — Remedies of tenant for failure to make repairs — Counterclaim in action for rent. Set-off and counterclaim — Subject matter — Set-off against claim for rent — Damage for failure to repair.</p> <p>Where a tenant, in consideration of the landlord’s promise to make certain repairs, enters into an oral lease for another year, he may, in an action for rent,- counterclaim for damages accruing from the landlord’s breach of his covenant to -repair, notwithstanding he retains possession of the premises.</p>

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

<p>Appearance — Effect of appearance — Effect as waiver — As waiver of defect in defendant’s corporate name.</p> <p>Municipal corporations: Defective streets, etc. — Degree of care required with regard to particular places, etc. — Curbstones and gutters; Liability with respect to sewers, drains and waters — Catch basins at street crossings.</p> <p>In an action against the city of New York, the plaintiff’s mistake in incorrectly stating the defendant’s name is cured by its voluntary appearance and submission to the jurisdiction of the court.</p> <p>Where the city of New York uses and maintains a culvert, not constructed by it, as a part of its system of sewage, it is bound to use reasonable care and diligence in protecting the public against any damage arising from its negligent maintenance.</p> <p>Where in the city of New York a horse slipped upon a wet asphalt pavement and, in its struggles, in some unexplained manner, its left hind foot became wedged in the opening of a cast iron culvert in the face of the sidewalk curb, three feet eight inches long and eight inches high above the street level, and there is no evidence that an accident of a similar nature had fever occurred before, or that defendant ever had notice that such an accident was liable to occur, the city is not liable.</p>

<p>Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, fourteenth district, borough of Manhattan, rendered, on the submission of an agreed controversy pursuant to section 241 of the Municipal Court Act, in favor of the defendant.</p>

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

<p>Municipal courts—Procedure — Jury — Time for demanding where there are several defendants.</p> <p>Under section 231 of the Municipal Court Act, a jury trial is .only matter of right when demanded at- the joining of issue; and where upon the joinder of issue against two of three joint defendants no demand for a jury is made, the plaintiif is not entitled to a jury trial against them, though he demands it upon the joinder of issue against the other defendant.</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, third district, borough of Manhattan.</p>

<p>Municipal courts — Procedure — Pleadings — Verification — By attorney.</p> <p>In a Municipal Court action the verification to the answer of the defendant, a domestic corporation, may be made by its attorney.</p>

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

<p>Appeal by the plaintiff from a judgment of the City Court of the city of New York dismissing the complaint.</p>

<p>Appeal by the plaintiffs from an order of the City Court of the city of New York setting aside the verdict of a-jury.</p>

Appeal by the defendant from an order of the City Court of the city of New York, denying a motion to compel the plaintiff to serve an amended complaint.

<p>Appeal from an order of the City Court of the city of New York ordering a compulsory reference under section 1013 of the Code of Civil Procedure.</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, and from an order denying defendant’s motion for a new trial.</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 by direction of the court.</p>

<p>Street railways — Operation — Actions — Sufficiency of evidence —Contributory negligence.</p> <p>Where, in an action for personal injuries received by being struck by a street car, plaintiff testifies that before leaving the sidewalk he looked up and down the street but no car was in sight upon either track; that he proceeded across the street, diagonally, but did not look again until he had crossed one track and was approaching the other, and that then he saw the car, five feet away, which struck him, a judgment in his favor will be reversed and a new trial granted.</p>

<p>Carriers—Statutory penalties enforceable against carrier—Liability to penalty for refusing transfer — Action — Failure of proof.</p> <p>In an action to recover a penalty for a refusal to give a transfer to a passenger on a street railway, where plaintiff alleges in her complaint that á transfer was refused her on December 7, 1905, but on the trial testifies that the date was July 7, 1905, and no motion to amend the pleadings to conform to the proof is made, a denial of defendant’s motion to dismiss, made at the close of the case, is error.</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 the Bronx.

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.

Appeal by the defendant from an order of the City Court of the city of New York for the examination of the defendant in proceedings supplementary to execution.

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.