Volume 55 — New York Miscellaneous Reports

Motion to set aside report of commissioners upon the ground that the commissioner John 0. Grezinger was not a disinterested person and was disqualified.

<p>Judicial investigation of alleged void ballots.</p>

<p>Return of an order for a summary inquest under chapter 502, Laws of 1906.</p>

<p>Constitutional law — Distribution of powers — Legislative encroachment on judicial powers.</p> <p>The provision of law relating to imprisonment in the New York State Reformatory at Elmira, authorizing the release of prisoners on parole by the State board of managers of reformatories and their subsequent re-arrest upon violation of the parole, does not violate the constitutional principle of the separation of the judicial, legislative and executive departments of government.</p>

<p>New trial — Proceedings to.procure new trial — Conditions on granting or refusing new trial — Payment of costs as condition to granting new trial — When granted for error of jury.</p> <p>Costs should not be imposed upon a party to whom a new trial is granted for error of the jury.</p>

<p>Motion for an inspection and discovery.</p>

<p>Motion to vacate an order for examination before trial.</p>

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

<p>Injunction — Preliminary injunction — Grounds and matters considered — Grounds as limited by Code — In action for separation.</p> <p>In an action for a separation brought by a wife against her husband, an order will not be made restraining and enjoining the defendant from living and cohabiting with another woman.</p>

<p>Injunction — Preliminary injunction — Grounds and matters considered — Grounds for refusing — Preventing enforcement of criminal law. Sunday — Sunday sports — Baseball — Public invited.</p> <p>Baseball playing on Sunday to which the public are invited is a misdemeanor, whether an admission fee is charged or not.</p> <p>Courts of equity will not interfere to prevent the enforcement of the criminal law.</p>

<p>Motion for retaxation.</p>

<p>Pleading — Motions relating to pleadings — Motion to make more definite and certain — When proper in general — Time of transfer of note.</p> <p>The time when an event happened must be stated in the pleading if it is material to the cause of action or defense and may be required by motion to make more definite and certain.</p> <p>In an action upon a promissory note the plaintiff should be required to state whether the note was transferred to the plaintiff before or after its maturity.</p>

Motion by defendant Smith to cancel notice of pendency of action and to dismiss complaint, and for other relief. The action was brought to compel the specific performance of an agreement for the sale of real estate.

<p>Action — Conditions precedent in general — Entry of judgment.</p> <p>Bonds — Breach — What constitutes breach.</p> <p>Judgment — Entry — Entry nunc pro tunc.</p> <p>An action upon a bond conditioned for the payment of any judgment that may be rendered for the enforcement of a mechanic’s lien cannot be maintained until the judgment is entered as prescribed by the Code; and an action brought upon the bond, after a decision and judgment have been signed by the justice but before the judgment has been entered, is premature and the complaint must be dismissed.</p> <p>An order obtained after the commencement of the action on the bond, providing for the entry of the judgment nunc pro tuno as of an earlier date, will not prevent this result.</p>

<p>New trial — Grounds — Verdict or findings contrary to law or evidence — In general.</p> <p>Witnesses: Disqualification by reason of confidential relation — Between physician and patient — In general — Patient protected; Disclosures necessary to enable physician to prescribe — Presumption: Credibility, impeachment and corroboration of witnesses — Bight to prove inconsistent statements.</p> <p>Depositions — Depositions ’on commission — Use as evidence—Exclusion of entire deposition.</p> <p>Upon appeal from a judgment entered upon a decision of the court or the report of a referee, the court can examine the case de novo upon the evidence and order a new trial, not only where the judgment is contrary to the evidence, but where there is a preponderance of evidence against it; but, upon a motion for a new trial after a verdict of a jury, a new trial can only be granted where the weight of the evidence against the verdict is so great that the court can see it must have been the result of passion, prejudice, mistake, ignorance or corruption.</p> <p>The rule as to confidential communications between physician and patient being for the protection of the patient in her subjective freedom of' consultation, the patient when a witness can no more be compelled to disclose them than can the physician.</p> <p>The relation of physician and patient being established, it will be assumed that communications made by the patient to the physician were necessary to enable him to treat her in a professional capacity and will receive protection.</p> <p>Where the testimony of a physician has been taken by deposition and part of the testimony is inadmissible, the unobjectionable portion is not therefore to be excluded.</p> <p>The testimony of a witness given upon a former trial cannot be read, except to refresh his memory, or to contradict him after he has been interrogated in respect to the matters as to which he previously testified and his attention has been called to the testimony then given.</p>

<p>Execution of written instruments — Delivery — In general.</p> <p>Chattel mortgages — Recordation — Delay in filing.</p> <p>The delivery of a chattel mortgage to a third party to be delivered to the mortgagee at a future date if the debt intended to be secured thereby is not sooner paid, where nothing remains to be done by the mortgagee to entitle it to the mortgage,, is an absolute delivery; and failure to file the same, as prescribed by statute, renders it void as to creditors.</p>

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

<p>Action to foreclose a mortgage. Motion to dismiss complaint.</p>

<p>Fraternal and mutual benefit associations: Insurance contract — Constitution and by-laws of association as part of contract — Amendments; Forfeiture, suspension or resignation — Waiver of forfeiture— Acceptance of dues.</p> <p>Where a clerk joins a benefit association, which reserves the right by amendment to its by-laws to forfeit the insurance of any member engaged in an extra hazardous occupation; and, in his application for membership, he agreed that he would conform to and abide by the constitution, by-laws, rules and regulations of the association and of any council thereof of which he might at any time be a member, then in force or which at any time thereafter might be adopted; and that, should he engage in any occupation which was to be deemed extra hazardous or prima facie hazardous by the board of directors or their successors, he should forfeit his membership together with all payments made by him; and, prior to the time when he changed his occupation to that of a switchman in a railroad yard, the board of directors of the association had regularly adopted and promulgated a list of extra hazardous occupations, including the occupation of a switchman, and such occupation continued to be an extra hazardous one under the by-laws and regulations of the association down to the time of the death of the member, who was killed while he was engaged in such an occupation, no recovery can be had upon his certificate of insurance.</p> <p>In the absence of proof that the association or its officers had knowledge or notice of the member’s change of occupation, the acceptance of dues from him was not a waiver of the forfeiture of his membership.</p>

Action for the cancellation of a bill of sale alleged to have been obtained by fraud and undue influence. The opinion states the case.

<p>Demurrer to complaint in an action to recover penalties for refusal to supply gas.</p>

<p>Undue influence — Actions — Burden of proof and presumptions.</p> <p>Gifts — Fraud, mistake, undue influence or incapacity affecting gifts — Evidence — Sufficiency and presumptions.</p> <p>It is only where some confidential or fiduciary relation exists between the parties to a gift mter vivos, or where one party is mentally incapacitated, or physically weak, or under the control or influence of the donee, that he, when the gift is attacked, has the burden of explaining the transaction.</p> <p>Where, in an action to compel an accounting for $2,000 drawn from a savings bank, the testimony of the plaintiff that she gave one of the defendants her savings bank book with an order for the withdrawal of said amount which he was to return to her, is unsupported by other testimony, while the testimony of said defendant corroborated by five witnesses preponderates in favor of the claim that it was an absolute gift of the money to one of plaintiff’s granddaughters, with whom she was boarding after leaving her son’s home because of his ill-treatment of her, defendants are entitled to judgment upon the merits dismissing the complaint.</p>

<p>Action upon contract.</p>

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

Motion to open default, set aside the verdict of the jury, and direct the commission heretofore appointed to reconvene and to give to respondent a reasonable opportunity to present his defense.

<p>Insurance — Forfeiture of policy — Policy of insurance on property — Vacancy of insured building — Breach of condition by mortgagee.</p> <p>Where a policy of fire insurance upon buildings erected by a tenant, loss payable to mortgagee, requires the mortgagee to notify the company of any change of ownership or occupancy, and, in consequence of the tenant being dispossessed, the buildings became actually vacant nearly three months before they were destroyed by fire, the failure of the mortgagee to notify the insurance company of the fact was a bar to his action on the policy.</p>

<p>Insurance: Construction and operation of contract — In general — Construction in favor of assured; Actions on policies — Provisions in policy requiring action within specified time.</p> <p>A provision of an accident insurance policy that no action to recover any benefit thereunder other than weekly benefits shall be brought unless within nine months of the date of the accidental injury covers all benefits; and an action to recover a death benefit, begun more than nine months after the death of the insured, is barred by said provision.</p> <p>A provision in the policy that it shall not be construed to cover any person over the age of sixty years will be construed as relating to the date of issuing the policy.</p>

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

<p>Action in replevin.</p>

<p>Action to recover car license fees. The opinion states the case.</p>

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

<p>Actioot for specific performance of a contract for the sale of real property.</p>

<p>Specific performance — Actions — Pleading — Complaint.</p> <p>Pleading — Demurrer — In general — Objection on face of pleadings in general.</p> <p>The complaint in an action for specific performance of a contract to convey real estate need not allege that plaintiff has not an adequate remedy at law.</p> <p>To sustain a demurrer upon the ground that the complaint fails to state facts sufficient to constitute a cause of action, the date of the summons or verification cannot be referred to, as neither is a part of the complaint.</p> <p>Where the complaint in an action for the specific performance of a contract to convey real estate alleges that the deed was to be delivered on or before the first day of February, 1906; that the defendant has refused to perform the contract and has refused to comply with the preliminary terms thereof and has tendered back the deposit paid at the time the contract was signed; and it does not appear upon the face of the complaint that the action was commenced prior to February first, a demurrer on the ground that the complaint fails to state facts sufficient to constitute a cause of action must be overruled.</p>

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

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

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

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

<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, second district, borough of The Bronx.

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

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

Appeals by the respective plaintiffs from judgments rendered in favor of the defendant in the Municipal Court of the city of New York, third 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>Taking case from jury and nonsuit— Weight and sufficiency of evidence— In action against street railway for collision with vehicle.</p> <p>Street railways — Operation — Actions — Questions for jury — Negligence in collision with vehicle.</p> <p>Negligence—Contributory negligence—Imputed negligence—Negligence of driver not under control of person injured. ,</p> <p>In an action against a street railway company for injuries sustained by the collision of one of defendant’s cars with the wagon in which plaintiff was riding, where it appears that, upon the approach of the car from behind, the sound of its bell was heard and the driver immediately proceeded to get off the track on which he was driving but, before he could do so, the wagon was violently struck and plaintiff injured, there was sufficient evidence of negligence upon the part of defendant to submit to the jury and it was error to dismiss the complaint.</p> <p>And, where it appears that the plaintiff was the employee of the owner and driver and that he did nothing to control, direct or influence the conduct and action of the driver, contributory negligence on the part of the driver cannot be imputed to the plaintiff.</p>

Appeal by the plaintiff from a judgment of the City Court of the city of Yew 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.

Appeal by the plaintiff from an interlocutory judgment of the City Court of the city of Hew-York overruling the plaintiff’s demurrer.

<p>Evidence — Parol evidence — The general rule and its applications — Invalidating written instruments — Fraud.</p> <p>Deceit — Pleading — Falsity; Knowledge of falsity and intent to deceive; Injury.</p> <p>Damages — Measure for torts — Liability for fraud or deceit — In general — Fraudulent representations of landlord.</p> <p>In an action for deceit, the rights' of the parties are not controlled by the written contract executed by the plaintiff as a result of the alleged fraudulent representations; and evidence in support of plaintiff’s contention is admissible, though it tends to vary and contradict the written instrument.</p> <p>In an action for deceit, a convlaint is insufficient which merely alleges the representations without alleging their falsity, or defendant’s knowledge of their falsity, or his intent to deceive, or any damage to plaintiff.</p> <p>In such an action, where the allegation is that plaintiff was induced to sign a lease of a building upon the representation there was electric power in it which plaintiff could use, it was error to permit plaintiff to offer proof of lost profits as an element of damages. The true measure ivas the difference between the value of the lease for the unexpired term and the stipulated rent and the cost of moving. It was also error for the judge in his charge to the jury to submit to them as an element of plaintiff’s damages the profits he testified he had lost.</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, borough of Manhattan.</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, twelfth district, borough of Manhattan.</p>

<p>Examination of witnesses — Cross-examination — Eight of cross-examination— As to book containing entries used by witness to refresh his memory.</p> <p>Where the plaintiff, in an action upon a policy of fire insurance, refreshes his recollection as to the goods that were destroyed by reference to two pages of a memorandum book, which were in his handwriting, defendant has the right to ask upon cross-examination whether the entire book was in his handwriting.</p>

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

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

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

Appeal by the defendant from a judgment of the City Court of the city of ISTew York, rendered in favor of the plaintiffs, and also from an order denying a motion for a new trial.

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

<p>Appeal hy the defendant from a judgment of the Municipal Court of the city of Few York, second district, borough of Manhattan, rendered in favor of the plaintiff for $150, and from an order denying defendant’s motion to set aside the judgment and grant a new trial.</p>

<p>Appeal by the defendant from three judgments in favor of the respective plaintiffs, rendered in the Municipal Court of the city of ¡New York, tenth district, borough of Manhattan.</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 plaintiff from a judgment in favor of the defendant, rendered in the Municipal Court of the city of Yew York, twelfth district, borough of Manhattan.

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

<p>Appeal by the defendant from a judgment overruling a demurrer interposed by the defendant 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, first district, borough of Manhattan.

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

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

<p>Negotiable instruments — Actions — Complaint — Demand, presentment and notice.</p> <p>Where the complaint in an action upon a check against the drawer fails to allege that notice of dishonor was given to defendant or that any facts existed in consequence of which such notice was unnecessary, it is demurrable for insufficiency.</p>

<p>Principal and agent — Eights and liabilities of principal as to third persons — Extent of actual authority of agent to bind principal, including implied authority — Special agents; Admissibility of evidence as to authority.</p> <p>That the steward of a club conducts a restaurant in its rooms does not clothe him with authority, real or apparent, to charge the club with his debts.</p> <p>Where the steward of a club agreed to personally conduct its restaurant and furnish all such food, eatables, liquors and cigars as might be required by the members, without any liability on the part of the club, and, in an action against the club for meat alleged to have been sold and delivered at its special instance and • request, it appears that monthly statements for meat delivered to defendant were received by the bookkeeper, employed at the joint expense of the club and its steward, and delivered by the bookkeeper to the steward who paid the bills, except that for which suit was brought, by his personal checks, the evidence, under the most favorable aspect from plaintiff’s standpoint, shows that the steward was a special and not a general agent of the defendant and it was competent for it to show the exact limit of the steward’s authority; and, the debt contracted by him for the price of the meat in suit being clearly outside the limit of his authority as special agent, the defendant was not liable therefor.</p>

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

Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of Mew York, seventh district, boro-ugh of Manhattan.

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

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

<p>Principal and surety—Eights and remedies between cosureties — Who are cosureties — Sureties under successive instruments; Contribution.</p> <p>In an action by a- surety upon the official bond of a marshal of. the city of New York against the sureties on a bond previously filed for contribution, a promise on the part of the principal to the cosureties that their obligation should last only until he procured a new surety and the subsequent filing by him of the new bond do not constitute a defense.</p> <p>It is not material that the sureties assumed their liability by different instruments and at different times, since, where successive bonds are given for the faithful discharge of a trust, all the bonds are cumulative and the sureties on each bond stand in the relation of cosureties to the sureties on all the others.</p> <p>The testimony of the marshal, that before he got the bond he' told the person soliciting the bond or to whom he gave the order that he was anxious to get a new bond as he had promised his previous sureties to release them and he would esteem it a favor if the person would give him a bond; that the person told him it would cost fifteen dollars, and it was on payment of that amount he got the bond, is too indefinite to establish a consent by plaintiff to the substitution of plaintiff’s bond for that of defendants’ and for a cancellation of the latter.</p>

<p>Instructions — Time and manner of giving and sufficiency of instructions—Manner — Holding up plaintiff to ridicule.</p> <p>In an action for fraud, where the court in its charge to the jury holds up the plaintiff to ridicule and contempt, a judgment for the defendant should he reversed.</p>

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

<p>Justice of the peace — Procedure in justices’ courts — Process — Service in general — Manner and sufficiency of service — Defect in copy served.</p> <p>The omission of the year, in the copy served upon the defendant of a summons issued by a justice of the peace, is not a jurisdictional defect; and a writ of prohibition will not be granted to prevent the enforcement of the judgment subsequently entered against the defendant.</p>

<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.</p> <p>The provision of the Liquor Tax Law which forbids a license to a saloon within two hundred feet of a church contemplates a building in actual use for religious worship and not a building used for occasional entertainments incidental to a church, and the subsequent use of the building for public worship does not invalidate a certificate granted before such use began.</p> <p>Where access to the rear building on a lot is from the yard between the front and rear buildings and access to the yard can only be had from the front of the lot, the direct entrance to the rear building is not the entrance which the statute eonemplates; and, where the entrance to the front building is beyond the prescribed distance, the consent of the owner of the building or his agent is not required.</p>

<p>Motion to vacate an order of the County Court of Chautauqua county appointing commissioners to lay out a highway.</p>

<p>Motion to confirm report of commissioners of estimate and assessment.</p>

<p>Motion to vacate order in supplementary proceedings.</p>

<p>Betttrn of an order to show cause why a third party should not appear and submit to a further examination in proceedings supplementary to execution.</p>

<p>Motion by plaintiff for discovery under article 4, title 6, chapter 8 of the Code of Civil Procedure.</p>

<p>Application for" a temporary injunction.</p>

<p>Motion for a preliminary injunction.</p>

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

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

<p>Motion to vacate an injunction.</p>

<p>Corporations — Rights of stockholders and actions hy them — In general— Rights of minority stockholders — To prevent merger.</p> <p>Injunction — Nature and remedy and when granted in general—Existence of other remedy — Under section 36 of Banking Law.</p> <p>A contract between two corporations having common directors, even though it has been ratified by a majority of the stockholders, may be declared void upon the objection of a minority stockholder, if the circumstances show that such ratification was induced by fraud or obvious disregard of his rights.</p> <p>Where a proposed merger agreement between two corporations is such "that it cannot conscionably be ratified against the objection of a dissenting stockholder, the completion of the proposed merger will be restrained by injunction at his suit.</p> <p>Where a merger agreement is proposed between a corporation which has been able to earn during the last four years 6.00 per cent per annum upon the book value of its stock and another which has been able to earn nearly twice as much, and the amount of capitalization which each company proposes to contribute to the new company is approximately the same; and where, because of the difference in earnings, the stockholders of the first company are offered for their contribution to the new company only one-half of the amount of stock offered to the other company, resulting in a substantial loss to the former in book value, and are asked to relinquish their control over their investment and forego the possibility of ever receiving upon it more tljan one-half of what the stockholders of the other company receive and to accept in the place of what experience has proved it can earn a less amount of potential earnings, as prophesied and estimated by the promoters of the merger; and where nine of the directors of the first company are directors in the second of whom three are also directors in an insurance company which holds 49 per cent, of the stock of one of the companies proposed to be merged and 67 per cent, of the stock of the other, and all of said directors voted in favor of the resolution authorizing the merger agreement, the court, in an action by a stockholder in the first corporation who is also a policy holder in the insurance company, will restrain the completion of the proposed merger agreement, though free from the taint of fraud, as being unfair to the interests of the plaintiff and his fellow stockholders.</p> <p>The remedy given by section 36 of the Banking Law (L. 1892, ch. 689), which provides that, in the event of a merger of two or more corporations, any dissenting stockholder may, within sixty days “ after the merger takes effect,” apply for the appointment of appraisers and receive from the new company the value of his stock thus appraised, is not yet open to the plaintiff, is not exclusive and does not prevent the court in a proper case from granting relief by injunction.</p>

Motion under section 545 of the Code of Civil Procedure to strike out certain allegations of the answer as impertinent, irrelevant, redundant and scandalous.

<p>Motion for a receiver in an action to foreclose a mortgage on real property.</p>

<p>Trusts — The trustee, appointment, qualification, etc. — Appointment by court — On death of trustee.</p> <p>Motions and orders — Renewal and rehearing — In general — Motion for appointment of trustee.</p> <p>Where real property was conveyed to a savings bank to secure the payment of its depositors and a receiver of the bank was appointed and the grantors afterward conveyed the same premises to a trustee to secure the indebtedness of the grantor to the bank and to make disposition of "the surplus as therein directed, and the receiver is. afterward discharged without accounting for the surplus of the property thus conveyed, arising from the sale of a portion thereof, and without having enforced the claim of the bank against the remainder, and the trustee dies without having executed his trust, and a justice of the Supreme Court refuses to confirm the appointment of a new trustee and, instead, appoints a successor to the former receiver, another justice of said court will not, upon practically the same facts, appoint a trustee upon a new application.</p>

<p>Motion for a new trial.</p>

<p>Motion to open the default.</p>

<p>Motion to set aside stipulation.</p>

<p>Discovery — Examination of party before trial — Procedure — Enforcement of order — After reversal or order vacating order for examination.</p> <p>Where an order for the examination of a party before trial is vacated on motion and the order vacating it is afterwards reversed on appeal, the court has power to fix a new date for such examination; and the failure of the party then to appear and be examined, without adequate excuse therefor, places him in contempt.</p>

<p>Carriers — Carriage of goods — Actions against carriers—Pleading — Complaint — In action by consignor.</p> <p>The right of stoppage in transitu only arises in case of the consignee’s insolvency; and, in an action by the consignor against the carrier for its refusal to stop the goods and return them to the consignor, in the absence of any allegation of the consignee’s insolvency, the complaint is demurrable.</p>

<p>.Libel and slander — Words injuring business or occupation — Words imputing dishonesty — To an attorney.</p> <p>A complaint in an action by an attorney for libel which alleges that defendant wrote plaintiff’s client that as far as defendant could see plaintiff was “ only taking the matter up in order to get a fee out of you, as he is not looking after your interests at all ” charges- words that are actionable per se and is not demurrable.</p>

Demubbeb to complaint upon the ground that it does not ■ state facts sufficient to constitute a cause of action, and the further ground of misj'oinder of causes of action.

<p>Joinder of causes of action — Whether complaint states more than one cause of action — Demanding multiplicity of relief.</p> <p>A complaint whibh sets forth a trespass merely and asks damages therefor is not demurrable though equitable relief is also seught.</p>

<p>Issues of law upon demurrer to complaint for insufficiency of substance.</p>

<p>Issues of law upon demurrer to complaint for insufficiency.</p>

<p>Account, Action for — Nature of remedy — Account as incident to other actions.</p> <p>Specific performance — Nature and foundation of remedy — Existence of remedy at law.</p> <p>Patents — Licenses and contracts — Actions relating to royalties — Action to recover royalties is an action at law.</p> <p>Pleading — Complaint or declaration — Statement of cause of action in general — Insufficient allegation of damage.</p> <p>An equitable action cannot be maintained for an accounting and for specific performance by one to whom royalties are due for the manufacture and sale of beds embodying a patented device, because the plaintiff does not know the amount of such sales and defendant has not rendered statements thereof as agreed; and a complaint, which demands judgment for no definite sum and alleges plaintiff’s ignorance of the amount due, fails to state a cause of action.</p>

<p>Pleading—Answer or plea—Joinder of pleas — Necessity that each defense be complete in itself.</p> <p>In the statement of separate defenses, each must be complete in itself, either by the re-statement of matrial facts previously stated or by proper reference thereto.</p> <p>Issues of law upon demurrer to separate defense and counterclaim.</p>

<p>Pleading — Answer or plea—Joinder of pleas — Necessity that each defense be complete in itself — Ineffectual attempt to refer to previous paragraphs of the answer.</p> <p>Where, in the statement of a separate defense, the defendant intended to refer to and reiterate the allegations contained in previous paragraphs of his answer, but by mistake referred to them as paragraphs of “ this amended complaint,” a demurrer to the answer for insufficiency must be .sustained.</p>

<p>Motion by plaintiff for an interlocutory decree of divorce. The opinion states the case.</p>

<p>Issues of law upon demurrers to reply.</p>

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

<p>Action to have a deed adjudged fraudulent and void as to grantor. The opinion states the case.</p>

<p>Actions in ejectment.</p>

<p>Action for the foreclosure of a mortgage on real property.</p>

<p>Action to procure the cancellation of a mortgage upon real property.</p>

<p>Waters and watercourses — Subterranean and percolating waters — Obstruction and diversion — Diversion of mineral springs by pumping.</p> <p>Waters beneath the surface of the earth, whose boundaries and courses are not well defined or reasonably ascertainable, are deemed percolating, and part of the land in which they are found, and the absolute property of the owner of the land who may use or dispose of them as he chooses, so that he does not unreasonably injure or interfere with the rights of others; and, if by the exercise of such rights he intercepts or draws 'off the percolating waters of his neighbors’s land, such injury is damum absque injuria. But this principle applies to waters passing from the lands of one owner to those of another by natural laws and not to such as pass under the influence of artificial appliances, employed to accelerate the operation of such laws, or to divert, contrary thereto. And, where it appears that the mineral springs and wells of a certain region have a common source and that the owners of lands in such region bored upon their premises through the subjacent rock until they reached the mineral waters percolating therein and then attached thereto a pump by which they diverted the mineral water from plaintiffs’ spring, the plaintiffs are entitled to an injunction to restrain the defendants from operating their pump.</p>

<p>Insurance companies — Organization and conduct of business — Mutual companies — Profits and dividends — Eight of policy-holders in undistributed surplus.</p> <p>Pleading — Complaint or declaration — Statement of cause1 of action in general — Complaint in action at law framed as bill in equity.</p> <p>The relation of a life insurance company to its policy-holders is not that of a fiduciary; and, although the holder of a policy which . contains an agreement by the company to apportion equitably certain surplus profits to him and the holders of the other policies of the same class has a cause of action against the company for the breach of such agreement, it is a legal and not an equitable cause of action.</p> <p>Where the complaint in such an action fails to state facts showing that the apportionment made by the company’s officers is not equitable, or has been based' upon erroneous principles, and no facts are stated showing fraud or misconduct on the part of the defendant, the complaint fails to state facts sufficient to constitute ¿ cause of action.</p>

<p>Abutting owners — Rights and liabilities in general — Right to damages for change in grade.</p> <p>Municipal corporations — Incorporation — Effect of repeal of charter.</p> <p>Statutes — Repeal — In general — Effect on property rights.</p> <p>Unless by satute, an abutting owner has no right of action to recover for damages sustained by a lawful change of a street grade; if the grade has been changed unlawfully he may maintain an action against the municipality to recover consequential damages.</p> <p>While a statute (L. 1883, ch. 113), subsequently embodied in section 159a of the General Village Law (L. 1897, ch. 414), was in force and éffeet, by which for any change in the grade of a village street the damages to an abutting owner could be recovered as therein provided, plaintiff purchased property the rear portion of which faced on Marion avenue, a public street graded with the existing surface, then in the village of Edgewater; and, in 1897, the board of village trustees consented to the board of supervisors assuming control thereof as a county road. By the Greater New York Charter (L. 1897, ch. 378), the borough of Richmond and the village of Edgewater became a part of the territory of the city of New York; and, thereafter, in 1900, the city, in cutting, grading and macadamizing said street in the rear of plaintiff’s property, cut away to the extent of six or eight feet without making compensation to him for his damages. In an action for such damages, held:</p> <p>Plaintiff was protected by the Village Law and also by the County Law (L. 1890, ch. 555; as amd. in 1903) from a change in the grade of said avenue without' compensation to him.</p> <p>Plaintiff’s rights under the Village Law and County Law, even if they were not such rights as were entitled to the protection of the Constitution, were within the saving clause of section 1614 of the Greater New York Charter which provides that “ No right or remedy of any character shall be lost or impaired or affected by reason of this act,” etc.</p> <p>Neither the statute of 1883, as amended, nor the Village Law, nor the amended County Law was repealed to the extent of taking away plaintiff’s right to damages by section 951 of the Greater New York Charter.</p> <p>In construing the provisions of section 951, aforesaid, that a grade shall be deemed established by lawful authority “ where thn street or avenue has been used by the public as of-right for twenty years and been improved by the public authorities,” etc., by taking the word “ and ” as meaning “ or ” said provision of section 951 is harmonized with section 435 of the charter which provides that the surface grades of streets continuously existing and used for twenty years shall be deemed the grades of those streets.</p> <p>The city having proceeded illegally, plaintiffs only remedy is the present action.</p>

<p>Vendor and purchaser — Quantity, condition and description of property— Failure to convey quantity — Materiality of deficiency.</p> <p>Where a contract for the purchase of three lots in the city of New York for $76,000 sets forth the size of each lot, shortages on the various dimensions, as shown by an accurate survey, varying anywhere from a few inches to three or four feet, are so important that they cannot be disregarded; and the vendee, in an action to recover back bis deposit, is entitled to judgment for the amount, with interest and costs, for which he may have a lien upon the premises.</p>

<p>Action for construction of will.</p>

<p>Appeal from a judgment of the City Court of the city of Auburn, N. Y.</p>

<p>Action for money had and received.</p>

<p>Motion on part of defendants to change the place of trial from Madison county to Cayuga county for the convenience of witnesses.</p>

<p>Motion for an order substituting the Attorney-General as attorney for the plaintiff and for other relief.</p>

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

<p>Motion for a preliminary injunction.</p>

<p>Motion to strike out the opening paragraph of the separate defense.</p>

<p>Verification — Defects, objections and amendments — Remedy for defective verification.</p> <p>Where an answer is returned upon the ground of irregularity, the objection must be explicitly stated and the particular defect or omission pointed out so that the defendant may understand wherein it lies.</p> <p>Where a pleading is returned because of a defect in its verification and notice is served of an intention to treat the pleading as a nullity because of such defect, the party who served the pleading is entitled to a reasonable opportunity after the service of such notice in which to correct the error or supply the omission.</p> <p>Where, within twenty-four hours of its receipt, plaintiff returns an answer purporting to be verified, indorsed with a notice of its return upon the ground that it is not verified in accordance with the General Rules of Practice and that it is, therefore, treated as a nullity in accordance with section 528 of the Code of Civil Procedure, a judgment entered without notice to defendant within three hours thereafter will be vacated and plaintiff directed to accept service of the answer.</p>

<p>Mechanics’ liens — Nature of, and right to, lien in general — Existence or enforcement of another remedy.</p> <p>Stay of proceedings — Interlocutory stay — Stay to await event of another proceeding.</p> <p>The statute which creates a lien upon real property for the benefit of contractors and materialmen is remedial but the remedy is not exclusive nor a bar to any other remedy which the lienor may have.</p> <p>The lienor may pursue his remedies simultaneously, though he can have but one satisfaction of his claim.</p> <p>Where, about the time of the commencement of an action brought in the City Court of the city of New York in 1903, for work, ialioy pii4 opryicep pfl4 PWjmaf ftPT?!#®!! S biiiI4ji?g eojp tract, the plaintiff filled a notice of a mechanic’s lien against the defendant affecting the premises upon which the work was done, and thereafter brought an action in the Supreme Court to foreclose said lien, and the defendant was granted leave to plead, by supplemental answer, in the first action, his discharge in bankruptcy in 1907, a motion made by plaintiff to stay the trial of said action until after the trial of the action to foreclose the mechanic’s lien will be granted in the event that defendant serves the supplemental answer.</p>

<p>Motion for alimony and counsel fees in an action for separation.</p>

<p>Pleading — Answer or plea — Set-off, counterclaim, recoupment and cross-bills — Counterclaim — Failure to allege contract and damages.</p> <p>In an action to recover broker’s commissions for procuring a loan, an answer that alleges defendant informed plaintiff he would need the money in ten days to close a purchase of real estate and he suffered damage from not getting the money in that time, is insufficient as a counterclaim, in the absence of an allegation that the plaintiff’s agreement was to procure the money within that period, or as to when the period began or ended, or of any fact from which damage may properly be inferred.</p>

The plaintiff demurs to two of the defenses of the defendant Pillmore as insufficient in law upon their face.

Issues of law upon demurrer to first, second and third separate defenses and counterclaims, in answer of defendant Russian Company.

This action was brought by the plaintiff to restrain the Syracuse Telephone Company of Syracuse and its alleged successor, Independent Telephone Company of Syracuse, defendants, from placing a pole and stringing wires in front of the plaintiff’s premises on the westerly side of Townsend street, in the city of Syracuse.

Action to compel the specific performance by the lessor of a provision contained in the lease of certain premises, whereby the lessees were to have a renewal of the .term upon their giving a notice in writing of their intention to accept the renewal “ on or before six months prior to the date of the expiration ” of the term demised.

<p>Issues of law upon demurrer to complaint for insufficiency. Action for libel.</p>

<p>Issues of law upon demurrer to complaint, ,in action for libel.</p>

<p>Demurrer to complaint in action for libel.</p>

<p>Demurrer to answer. The opinion states the case.</p>

Motion by plaintiff upon minutes to set aside nonsuit. The defendant is a domestic manufacturing corporation engaged among other things in operating a foundry, a machine shop, etc. The plaintiff had worked for the defendant twelve years, and on the 26th day of July, 1905, worked in the defendant’s machine shop. One Boss was the boss or foreman of the machine shop and superintended the work of the men employed therein.

<p>Negotiable instruments — Accommodation paper — Liability as affected by notice.</p> <p>Where a promissory note is made at the request of and for the accommodation of the payee and the payee indorses and delivers it for value to plaintiff who has knowledge of what was done, the maker is liable thereon under section 55 of the Negotiable Instruments Law.</p>

<p>Wills — Interpretation and construction — Terms defining the nature and quality of estates or interest — Future estates and vesting, etc.— When conversion may take place.</p> <p>Where a testatrix gave her estate to her sister for life, and, immediately at her sister’s death, gave two pecuniary legacies to relatives and the residue, or the proceeds in ease of the disposal of any part, to a niece and grandniece and, in a subsequent clause, conferred upon her executor a discretionary power of sale, the proceeds to be invested, held that the residuary devisees, upon the death of the sister, immediately became vested with the real estate which had not been converted and an action to partition the same could be maintained.</p>

<p>Suit for an accounting.</p>

<p>Patents — Licenses and contracts — Actions relating to royalties — Defenses.</p> <p>Rescission of contracts — Claims for part performance.</p> <p>Contracts — Performance of contracts — Rights and remedies on breach of contract—Effect of existence of option to terminate.</p> <p>Under a contract providing for the manufacture and sale by defendant of potato diggers on which plaintiff held a patent and for the payment of royalties which contained an agreement by defendant to pay royalties “ on at least one thousand potato diggers in each calendar year during the continuance of this agreement” etc., the right given plaintiff to terminate the contract was not the exclusive penalty for defendant’s default but plaintiff could maintain an action for the royalties on one thousand potato diggers each year, less the royalties actually paid by defendant during that year, and plaintiff, by electing to terminate the contract, did not waive payment of the contract price during its continuance.</p>

<p>This action was tried by the court, a jury having been waived. The facts were agreed upon. The action was brought to recover upon a bond for $1,000, executed by the defendants Gannon and Oonnette as principals and The United States Fidelity and Guaranty Company of Baltimore, Md., as surety, to The Village of Phoenix, plaintiff, conditioned among other things that a street surface railway through and along certain streets in the village of Phoenix, the franchise for which had been granted by the trustees of the village December 27, 1902, to one Adolph G. Manz and assigned by him to Gannon and Oonnette, should be completed and in operation on or before January, 1905, in accordance with the conditions of the franchise, upon the ground that the time had. expired and nothing whatever had been done under the-franchise or toward the construction of the railroad.</p> <p>The franchise recited that Manz made the application for it “ for himself and his assigns, a street surface railroad cor-, poration hereafter to be. organized.”</p> <p>The franchise was granted to Manz, “ his assigns and successors (hereafter referred to as the Company).”</p> <p>The defendants defended upon the ground that the franchise was void, because granted to individuals, and not to a railroad corporation as required by law, and hence they were not liable upon the bond.</p>

<p>Action for construction of will.</p>

<p>Hearing on return of writ of habeas corpus.</p>

This is a proceeding instituted by the State Commissioner of Excise to revoke and cancel a liquor tax certificate.

<p>Application for the cancellation of a liquor tax certificate.</p>

<p>Supplementary proceedings — Judgments or orders on which proceedings may be based — Judgment of inferior court — Amount of judgment — Judgment of Municipal Court of the city of New York.</p> <p>A judgment for twenty-five dollars or more, inclusive of costs, recovered in the Municipal Court of the city of New York and docketed in a county clerk’s office, is a lien upon real estate; and supplementary proceedings may be maintained after the return unsatisfied of an execution issued thereon.</p>

<p>Motion to punish defendant for contempt of court.</p>

<p>Appeal from a judgment of a justice of the peace.</p>

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

<p>Criminal procedure — Sentence or judgment and execution thereof — Suspension of sentence — Power to impose suspended sentence.</p> <p>Constitutional law — Distribution of powers — Delegation of the powers of the executive department to the judicial — Pardoning power — Power to suspend sentence.</p> <p>The power of suspending judgment after conviction is resident in the Court of General Sessions as an inherent right and statutes ■ which in precise terms confer the power upon courts of record having criminal jurisdiction are to be treated as recognizing this inherent judicial function and not as invading the pardoning power.</p> <p>Section 470a of the Code of Criminal Procedure which provides for pronouncing judgment after it has been suspended was not repealed by implication by that portion of chapter 656 of the Laws of 1905 which amended section 11a of the Criminal Code relating to probation officers.</p> <p>Where, upon defendant’s conviction for assault in the second degree, he might have been sentenced for five years but sentence was suspended, and within that period he is twice convicted of misdemeanor and fined and once convicted of robbery in the second degree, and sentenced for two months, the court before which he was first convicted may, upon the expiration of said two months, revoke suspension of sentence and inflict punishment.</p>

<p>Application for leave to appeal from a judgment of a magistrate’s court.</p>