Volume 56 — New York Miscellaneous Reports

<p>Demurrer to indictment.</p>

<p>Applications for removal of committee and for direction as to the administration of the trust.</p>

<p>Intoxicating liquors — Granting license: Sufficiency of application for license; Consent of property owners — Requisites.</p> <p>Under the provisions of the Liquor Tax Law (L. 1896, ch. 112, § 17, subd. 11), which require that a duly verified and signed statement of an applicant for a liquor tax certificate shall be filed in the office of the county treasurer who shall endorse thereon the date of its receipt, the amount of tax paid, the date of issuing the tax certificate and the premises -where the business is to be carried on, and that “ such indorsement shall be received in evidence in all courts of this state and shall be competent and sufficient prima facie evidence of all the facts stated therein,” said statement together with the consents in writing of owners of dwellings within 200 feet from the premises designated for the traffic in liquors, which by subdivision 6 of said section are required to be filed “ simultaneously ” with said statement, and the indorsement of the county treasurer constitute the complete record of a particular case; and the record is not amendable, but must remain without erasure or interpolation; and, if for any reason the papers be deemed insufficient, new ones should be made and filed so that the facts as they actually occurred will appear.</p> <p>The consents in writing of property owners filed August 8, with an application for a liquor tax certificate, cannot he used, with the statements of other applicants placed on file twenty days there-' after, as the basis of a. subsequent application.</p> <p>The provision of subdivision 6 of said section 17, as amended in 1897, that such consents shall be executed and acknowledged as deeds entitled to he recorded, contemplates that such consents shall be subscribed at the end thereof by the property owners; and, where to make up the number required by the statute the names of two are written on a “ rider ” and affixed to the original statement already on file and above the consenting clause, such consents are insufficient and a liquor tax certificate issued thereon but not delivered will be canceled.</p>

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

<p>Proceeding to compel reclassification.</p>

Application on behalf of the relator, Harvey Stewart McKnight, for a peremptory writ of mandamus, to compel Martin H. Glynn, as Comptroller of the State of Mew York, to reinstate him to the office of transfer tax appraiser for the county of Queens.

<p>Taxes — Inheritance and transfer taxes — Assessment — Appointment of appraiser.</p> <p>Surrogates’ Courts — The court and its officers — Transfer tax appraiser — Appointment.</p> <p>The State Comptroller, in appointing a transfer tax assistant under section 234 of the Tax Law, is not bound by the surrogate’s recommendation but may appoint a person eligible for the office other than the person recommended by the surrogate.</p>

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

<p>Supplementary proceedings—" Order for payment or delivery of property — Order to apply property in general — Not applicable to property upon which the sheriff can levy.</p> <p>A proceeding for the examination of a judgment debtor cannot be maintained on the ground that he has property which he unjustly refuses to apply to the satisfaction of the judgment, where it appears by the affidavits on which the proceeding is founded that the property it is alleged he thus refuses to apply is property that might be readily levied upon by the sheriff under an execution.</p>

<p>Corporations: Power of corporation to make contracts, etc.— Power to purchase or take stock of another- corporation — As affected by anti-monopoly statutes: Dissolution of corporation — Who may sue for dissolution — When leave to sue should be granted' to Attorney General — In case of material or serious misconduct only.</p> <p>Gas — Franchises — Construction — Limitation of time.</p> <p>Contracts — Validity of contracts — Contracts involving violation of positive statute — Violation of anti-monopoly laws.</p> <p>Upon an application by the Attorney-General for leave to bring an action to annul a corporation where no issue of fact is raised which would call for the determination of a jury, the court will examine into the averments of the petition and the proof offered in support of them with like care as though called upon to pass judgment of dissolution.</p> <p>Where the court cannot see that the corporation has been guilty of any material or serious transgression >or misconduct which would tend to harm or menace the public welfare such application will be denied.</p> <p>Where a gas company is incorporated under a statute providing that no public highway in the city of New York shall be dug into or in any wise injured or defaced without the permission of the municipality, and the municipality grants a license or franchise to the corporation, limiting the period of time during which it will allow the streets to be dug into, such limitation does not abridge the life of the corporation, but is to be construed simply as a limitation of the time during which the corporation may dig into the streets for the installation of its plant.</p> <p>A gas light company incorporated for a period of fifty years may acquire rights and franchises which extend beyond that period and transmit them to its successors and assigns.</p> <p>The provisions of section 40 of the Stock Corporation Law, authorizing the acquisition of stock in other corporations, are not-affected by the so-called anti-monopoly statutes. (L. 1897, c. 383 and L. 1890, c. 690.) Transactions of that nature pursuant to said section, since they do not vouchsafe to the purchasing company any feature of exclusiveness in the field of its operations and cannot confer upon public service corporations powers to limit supply, either directly or by making prohibitive prices, are not within the prohibition of the anti-monopoly act.</p>

<p>Bail in civil actions — Exoneration of bail — Vacation of writ.</p> <p>Vacating an order of arrest works a legal discharge of the defendant from the obligation to render himself amenable to the process with respect to which the undertaking of his bail was given, and the hail should be exonerated under the provisions of section 601 of the Code of Civil Procedure.</p>

<p>Street railways — Street railway companies, their franchises and right to use of streets — Consent of public, authorities; Extensions, etc.</p> <p>Abutting owners — Remedies of abutting owners and actions against railroad companies — Right to injunctive relief — Necessity of showing railroad on plaintiff’s side of street.</p> <p>The consent of a village to the construction by a street railway corporation of its lines through streets comprehended in a proposed extension of its route is not invalid because granted before the corporation had filed the statement of its extended route required by section 90 of the Railroad Law.</p> <p>A proposed extension fifteen miles in length of a street railway three miles long is not to be deemed an evasion of the Railroad Law from the mere disparity between the length of the original route and that of the extension; but the circumstances will be considered and the extension will not be condemned as illegal unless it appears to be a palpable attempt to build a new route upon the pretense that it is an extension.</p> <p>In an action to enjoin the construction of a street railway in the highway in front of plaintiff’s premises, an allegation by the plaintiff in her complaint that she owns to the center of the highway is insufficient, unless coupled with an allegation that defendant is about to build its route along the side of the street on which the plaintiff’s premises are situated.</p>

<p>Discovery and inspection — Examination of party before trial — Right to remedy — Who may be examined — Hot the physician who conducts a physical examination.</p> <p>An order which provides for' an examination of the plaintiff before a referee and a physical examination of the, plaintiff" by a physician, and" also provides for a subsequent examination of the physician before a referee as to the result of the physician’s examination, is unwarranted by the statute as to the latter provision; and such provision will be stricken out on a motion to vacate the order.</p>

<p>Foreclosure of mortgages on land — Foreclosure by action and sale — Distribution of proceeds and surplus — Payment of surplus into Surrogate’s Court.</p> <p>Where real property which belonged to a deceased person at the time of his death was sold under a judgment of foreclosure more than three years after letters testamentary were issued upon his estate, the property was not liable to be disposed of for the payment of the decedent’s debts, and the surplus moneys arising from such sale are not required to be paid into the Surrogate’s Court but may be distributed in the usual manner.</p>

<p>Action to annul a marriage.</p>

Action for injunction to restrain defendant, a religious corporation, from using certain of its real property in the town of Great Valley for cemetery purposes.

The action was at common law by employee against employer for negligence. The alleged negligence was the furnishing of a defective appliance, the failure to give instructions in the use of an appliance, and the employment of an incompetent servant. There was a verdict for the plaintiff. The defendant stands upon its motion for a nonsuit and does not ask to set aside the verdict in case there was any question for the jury.

<p>Wills — Interpretation and construction: Designations and descriptions of persons, etc.— Particular terms of doubtful meaning — Issue: Terms defining quantum, etc.— Particular terms of doubtful meaning— Heirs and the like as words of limitation, purchase or substitution in legacies.</p> <p>In its primary legal sense “issue” is a word as extensive in its import as “heirs of the body” and embraces lineal descendants of every generation; and it must be taken in that sense when used in a will unless the testator, either by expressions in his will or fair and necessary inference therefrom, has manifested an intention to use the word in a limited or restricted meaning.</p> <p>Where a will, after certain devises and bequests to executors in trust to pay one-tliird of the income thereof to testator’s wife for life and the balance to his children for life in equal proportions, provided that, in case of the death of any of the children without issue before the decease of testator’s wife, the share or portion of the estate and income and interest thereof to which such child would at that time be entitled should' revert to the estate and be divided and distributed as thereinbefore provided; and that, in case of the death of either of said children leaving issue after the decease of the wife, the share or proportion of the estate and the income and interest thereof to which such child should then be entitled should be paid to such issue or to the next of kin of said deceased child; and where, in an action between the parties in interest and affecting said will, it was adjudged that the executors held the estate in trust in seven equal, separate but undivided shares for the purpose of receiving and paying over the income or interest of said estate to the children of testator during their respective lives, share and snare alike; and that, the widow being then dead, upon the death of any of said children the trust must cease as to the particular share held in trust for such child; and that, if such child so dying left lawful issue, the share held in trust for such child vested in and was payable to such issue of such child in fee, but, if such child left no lawful issue, said share became vested in fee in the next of kin of the testator, share and share alike, the arrears of income, if any, to follow the shares that became vested as in either case provided; and the question as to who were the “ issue ” intended by the testator and the proportion in which such “ issue ” were to take should any child of the testator die leaving issue after the death of ■ testator’s wife remained vexata quaes tio; and where, after the widow’s death, a daughter of testator died leaving her surviving a son and two grandchildren, children of a deceased son who was living at the time of the testator’s death and that of the widow, held:</p> <p>The son and said grandchildren of the deceased daughter are entitled to share per capita in the distribution of her share in testator’s estate.</p> <p>The income of any trust share, so far as accrued at the time of the beneficiary’s death, is payable with the principal to the surviving issue of such beneficiary in equal proportions.</p>

<p>Wills — Interpretation and construction — Terms defining the nature and quality of estates or interests — Future interests and vesting, etc.— Direction to convey, deliver, etc. at future time — Where gift is positive and direct.</p> <p>Suspension of power of alienation — Prevention of invalidity hy other provisions of grant or subsequent events — Suspension for period of years with provision limiting same to life in being.</p> <p>Where a testatrix bequeaths to each of her nephews, George and Frank, and a niece, their heirs and assigns forever, a distinct and' certain number of shares of corporate stock with a proviso that the stock shall be held in trust by her executors for seven years from her death if that shall occur before a certain date or from that date if she lives longer “ the said heirs ” to receive the dividends from the date of her decease, and that, in case of the decease of George before the expiration of the seven years without child or children, the shares bequeathed to him shall go to the children of testatrix’s brother James, share and share alike, all the legacies being upon condition that in no event shall the shares be delivered to the legatees until the expiration of the said period of seven years, the legacies as to Frank and the niece vest absolutely upon the death of testatrix, and the legacy to George vests on her death subject to be divested by his death should it occur prior to the 'expiration of said period.</p> <p>The only suspension of the absolute ownership of said shares of stock was measured by the life of George.</p>

<p>Appeal from a justice’s judgment in an action to recover the amount of an alleg’ed unpaid subscription to promote a local manufacturing enterprise,</p>

<p>Hearing upon writ of habeas corpus to inquire into the cause of detention.</p>

<p>Hearing upon writ of habeas corpus to inquire into the cause of detention.</p>

<p>Application to revoke and cancel a liquor tax certificate.</p>

<p>Election of officers — Nominations and preparation of official ballot — Certificate of filing — Time for filing — Filing nunc pro tunc.</p> <p>Where the certificate of the nomination of town officers, intended to be filed in the county cleric’s office, is delivered in good faith by the chairman of the town convention to the town clerk on the latter’s demand and statement that it is his duty to file it with the county clerk, and the town clerk retains it twenty-four hours and mails it to the county clerk so late on the last day for filing that it does not reach the county clerk’s office until the next day, and the circumstances indicate, on the part of the town clerk, fraud or a design that the certificate Should not be filed in time, an order should be made requiring the county clerk to print the names of the candidates upon the official ballot.</p>

<p>Matter of the application of Joseph F. Darling to review certain proceedings had by and before John T. Pooling et al., as commissioners of elections, constituting the board of elections of the city of Hew York.</p>

<p>Municipal corporations — Police department — Bight to revoke pensions.</p> <p>Where an alien, claiming citizenship under naturalization papers procured for him by the fraud of other persons without knowledge or intent on his part, for more than sixteen years acted as a member of the police force of the city of New York and faithfully discharged his duties and contributed to the pension fund a portion of his salary until retired and pensioned on account of disability incurred in the service, the police commissioner, upon discovering the illegality of his naturalization, may not summarily cut off his pension; and, if he does so, a peremptory writ of mandamus to restore him to the pension roll should be granted.</p>

Motion to vacate an order requiring a judgment debtor to appear and submit to examination in proceedings supplementary to execution.

<p>Jurisdiction — Jurisdiction of particular courts — City and marine courts — To issue attachment against domestic corporation.</p> <p>The City Court of the city of New York has not jurisdiction to issue a warrant of attachment against the property of a domestic corporation under section 636 of the Code of Civil Procedure,</p>

<p>Pleading — Amendments — Amendments of course — Of answer — After relief from default.</p> <p>Where defendant is relieved from her default in pleading and allowed to answer the complaint and complies with the conditions of the order and serves an answer, she has a right to amend the original answer once within twenty days after its service.</p>

<p>Calendar — Order on calendar — Preference.</p> <p>Constitutional law—Provisions relating to courts and judicial officers — Enlarging or restricting jurisdiction.</p> <p>The provisions of the Code of Civil Procedure (§§ 791, 793) so far as they relate to the preference of civil actions brought by the people of the State are not unconstitutional, though the provisions of such sections contravene the Constitution where they seek to deprive the court of the usual power to grant an adjournment of the cause upon the day set for its trial when sufficient grounds therefor appear, and upon an application for preference the order should merely name a day in the term on which the case will be moved for immediate trial.</p>

Motion to compel either the plaintiff or the sheriff of Hew York county to refund certain moneys taken under an execution subsequently vacated.

<p>Motion for confirmation of report of referee as to surplus moneys."</p>

<p>Application by the Attorney-General of the State of New York for leave to commence an action against the Inter-borough' Metropolitan Company, a corporation, for the dissolution thereof.</p>

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

Action by a telephone company for an injunction to restrain defendant from injuring, or in any manner interfering with, its poles, wires and property and for damages.

<p>Motion by defendant for new trial on judge’s minutes, after verdict of $1,500 in favor of plaintiff.</p>

<p>Agtioh to recover amount paid by a grantee to remove an alleged cloud upon title to certain real estate.</p>

<p>Action to compel the determination of a claim to real property.</p>

<p>Exchanges — Discipline of members — Procedure.</p> <p>Injunction — Who and what may be enjoined — Acts of private associations, etc.— In general — Unauthorized proceedings for discipline of members.</p> <p>The rules of the New York Cotton Exchange authorizing the board of managers to take proceedings for the expulsion of a member and further providing that in all such proceedings service of a copy of the complaint, documentary evidence and a list of the adverse witnesses must be made upon the accused and that the sections of the by-laws governing the entire proceedings must be specifically pointed out to him, a proceeding against a member by a supervisory committee with the approval of the board of managers, initiated by a notification to the member to appear before the committee for the purpose of investigating his connection with a specified transaction, apparently with a view to his suspension or expulsion, without complying with the rule requiring, service of the complaint, documentary evidence and list of witnesses, is a violation of the rights of the member which would entail grave consequences and danger of irremediable damage to him, and, in an action by him to restrain the prosecution of such proceeding, a temporary injunction should be granted restraining the exchange and the members of the committee from unlawful interference with his rights.</p> <p>The rule that a member of a voluntary association in proceedings for his expulsion must first exhaust his remedy within the corporation before the courts will interfere is applicable only to cases, where the proceedings are commenced and conducted in conformity with the provisions of the constitution and by-laws of the organization.</p>

<p>Wills — Interpretation and construction — Expenses of the estate, etc., and legacies — Rules and implications — Implied charges on land.</p> <p>In the -absence of an expressed intention to charge general legacies upon real estate, such an intention may be gathered from the circumstances attending the execution of the will; but, where it appears that at the time of making his will the testator had more than enough personal estate to satisfy his probable personal needs and to pay the general legacies, such an intention is not to be inferred.</p>

<p>Damages — Double and treble damages — When recoverable — Wot for cutting trees on State lands.</p> <p>Trespass — Actions — Pleading, etc.— Complaint — Wot insufficient because treble- damages asked.</p> <p>Joinder of causes of 'action — What causes of action may be joined — Trespass on real property with penalties under Forest, Fish and Game Law. •</p> <p>The provisions of - sections 1667 and 166b of the Code of Civil Procedure providing for treble damages do not relate to damages for cutting trees on lands of the State; but the fact that treble damages are demanded does not render a complaint, otherwise sufficient for an action for trespass upon real estate, liable to uem unei.</p> <p>Section 222 of the Forest, Fish and Game Law (L. 1900, ch. 20) expressly authorizes the recovery of the penalties thereby imposed for cutting trees on State lands in an action for trespass or in a separate action, and this provision was not repealed by the amendment to section 484 of the Code of Civil Procedure which went into effect April 23, 1900.</p>

<p>Issues of law upon demurrer to counterclaim.</p>

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

<p>Motioe for costs and’ extra allowance. The opinion .states the case.</p>

<p>Demurrer to complaint in a negligence action. The opinion states the ease.</p>

<p>Jurisdiction — Jurisdiction of particular courts — Concurrent jurisdiction— Supreme and Surrogates’ Courts.</p> <p>Parties — Plaintiffs — Trustee of express trust — When office of trustee is vacant.</p> <p>Trusts — Enforcement and protection of trust and remedies of beneficiary — Persons entitled to enforce — Beneficiaries.</p> <p>Former adjudication — Adjudications operative as bar or as conclusive evidence — Eule that former judgment must have been on the merits — Judgment of dismissal.</p> <p>The Supreme Court has jurisdiction of an action brought against the executrix of a deceased testamentary trustee and other parties in interest for an accounting of the rents of. certain real property in the possession of the trustee, as such, during his. lifetime, which rents were payable in part to plaintiff as a beneficiary of the trust.</p> <p>No trustee having been appointed in the place of the deceased trustee, plaintiff was entitled to maintain such action to procure an adjustment of the rights arising under the trust.</p> <p>The complaint, after setting forth the will under which the trust was created, alleged that of the three trustees named in the will one never acted as such and the others are dead; that, in a proceeding in Surrogate’s Court for an accounting of the moneys sued for herein, the defendant executrix interposed a defense that the deceased trustee was in possession of the premises from which the rents were derived under a claim- of title in hostility to the trust, a defense which served to take the case without the jurisdiction of the surrogate, and that the appeal to the Appellate Division resulted in a dismissal of the proceedings; that this deceased trustee received the rents but except as to a certain portion had failed to pay over to the persons entitled “ and converted the same to his own use".”</p> <p>Held, that the complaint stated facts sufficient to, constitute a cause of action; that the allegation that the deceased trustee converted the rents to his own use did not make the .action one for conversion; that a contention that the complaint disclosed a defense of estoppel by former adjudication in the allegation that the proceeding for an accounting in the Surrogate’s Court was dismissed was untenable, there being no presumption that such dismissal was upon the merits, the complaint containing no suggestion that the merits of an asserted right to an accounting were determined.</p>

<p>Trusts — Execution and administration of trust — Discretion of trustees and judicial control — Delegation of powers; Control of court.</p> <p>A residuary estate consisting of real and personal property was devised and bequeathed to executors or such of them as should qualify in trust to collect and receive the income thereof and to “pay and apply the same to the use, maintenance and support” of the daughter and husband of testatrix “for and during the life of the survivor of them ” and the daughter was given the power to dispose, of the corpus of the trust by will subject to the trust for the testatrix’s husband, and, failing such testamentary disposition by the daughter, the estate, upon the death of both cestuis que trustent, was given to the daughter’s child or children surviving her and, failing any such child or children, then, upon the death of the cestuis que trustent, the estate was directed to be divided among the children of testatrix’s two brothers. The executors, or such of them as should qualify, were also invested with full power to apply such portion of the capital of the trust fund as they might deem advisable to the use of testatrix’s daughter and husband. The husband predeceased his wife. Both executors qualified as such and upon the death of one of them the survivor was granted leave to resign his trust and the plaintiff herein was appointed in Ms place and as successor to him as trustee under the will “with all the power of an original trustee as fully as if it (the new trustee) had been mentioned in said will in place and stead” of the executors therein named. The new trustee accepted the trust and qualified a* such trustee. Conditions having arisen which rendered the income insufficient for the daughter’s education and maintenance in a manner becoming her station, she applied to the trustee for an allowance out of the principal of the trust estate which it refused because of doubt of the devolution upon it of the authority given by the will to the executors. In an action for the court’s instruction respecting the trustee’s authority to make the allowance; held, that it is without authority to apply any part of the corpus of the trust estate to the daughter’s use.</p>

<p>Powers — Construction and execution of powers — Relation back on execution to instrument of creation; Execution of general power of appointment — Appointment of corporations.</p> <p>Suspension of power of alienation — Effect of separability of estates — Separate trusts for more than two lives.</p> <p>Charities: Requisites and validity in general — Precatory character of gift; Statutory restrictions as to gifts — Restriction as to proportion of donor’s estate — Not applicable to application of power.</p> <p>Foreign corporations — Powers, duties, rights and liabilities — Right to acquire and hold property.</p> <p>Where a residuary estate "is given to plaintiff in trust to invest and pay the net income for life to A. and, upon her decease, to dispose of, convey and pass over the estate, or so much thereof as may then remain, to be held upon a trust to such persons and in such manner as A. shall have directed and appointed by her last will and testament and, in default of • such will, upon the further trust to convey, pass over and distribute, to the same person or persons and in the same shares and proportions as if testatrix then died intestate, there is given a general power of appointment in A. without limitation which,' in determining its effect, must be read as though it had been incorporated in the original will.</p> <p>A., who died in 1905, left a last will and testament under which the trustee of said residuary estate was appointed executor, and by which A. exercised the power of appointment and disposed of the whole estate. She owned no real property and her personal property was insufficient to pay her debts, and a transfer tax was fixed upon the property of testatrix which passed under the will of A. In an action by the trustee of the testatrix for the construction of the original will, held:</p> <p>It was clearly the intent of the testatrix to give to A. an unlimited power of appointment and the clause “ to such persons and in such manner as she ■* * * shall have directed ” was not limited to natural persons but included a foreign charitable corporation.</p> <p>The creation of two separate trust funds, each for the benefit of two defendants in said action, both of whom were conceded to have been in - being at the time of the death of testatrix, one of whom was the mother of A. and the other a beneficiary under the original will, was valid; and the power of alienation was not unlawfully suspended.</p> <p>Gifts of the remainder of said trust funds, after the death of the life tenants, to a foreign charitable corporation were not void as being trusts not authorized by the statutes of this State, there being nothing in the will to indicate that the foreign charitable corporation was not to become absolute owner of the residuary funds, although there was in the will an expression of the desire of the testatrix as to the use to which said funds should be put.</p> <p>The fact that a statute (L. 1894, ch. 136) providing that “any foreign corporation * * * may take by devise any real estate within this State and hold the same for not exceeding five years * * * from the time when the right to possession thereof passed into such devisee and convey it by deed or otherwise in the same manner as a domestic corporation” was in effect at the time of the death of. A., in 1905, and that the possession of the real property in question was then in the plaintiff as trustee, effectually disposed of a contention that the foreign charitable corporation was not competent to hold real estate.</p> <p>The statute (L. 1860, ch. 360) which prohibits the disposition of more than one-half of an estate under certain conditions to charitable and benevolent institutions could not be invoked by the surviving husband of A., as she was not disposing of her own property but of the property of the testatrix under a power of appointment.</p> <p>Upon stating the account of plaintiff as trustee under the first will, there should be turned over to him an amount sufficient to pay the debts of A., the transfer tax passing under her will, expenses of administration to plaintiff as executor; and the judgment should provide for distribution of the balance as directed by her will.</p>

<p>Executors and administrators — Appointment and qualifications of personal representatives, etc.— Bight to administer — Nominee of testator— Executor but not trustee.</p> <p>Trusts — The trustee, appointment, etc.— Testamentary trustee — Executor where not trustee.</p> <p>Where a wife devised the bulk of her estate in trust for the • benefit of her husband and two daughters, with remainder upon his death one-half to her daughter -C. absolutely and one-half to the executrices or the survivor of them in trust for her other daughter, and the husband is appointed executor and the two daughters executrices and trustees, there are two trusts, the first of which fails upon the death of the husband; and where testatrix, by a codicil executed after his death, appoints an executor and trustee in his place “giving and granting unto him all the powers and authority given and granted unto my said husband as executor and trustee,” the appointment is limited to that of executor only as the will clearly indicates that the husband was not to act as trustee of the second trust.</p>

<p>Accumulation — Limit of accumulation; Effect of invalidity.</p> <p>Former adjudication—What matters are concluded — Matters not necessarily involved in former proceeding.</p> <p>Where a will provides for the payment of the income of a share of the testator’s estate by the trustee to the guardian of the beneficiary during infancy, less the sum of $5,000 annually while under the age of fifteen years and less the sum of $10,000 annually afterward until his majority, after which the trustees are directed to pay him $15,000 annually until he reaches the age of twenty-five years and then to pay him the principal sum less , so much as is required to produce an annual income of $10,000, the sum so deducted to be held‘in trust for the beneficiary’s life with certain remainders over, the directions for accumulation of income during minority are invalid so far as the accumulation is sought to he made part of the fund to be held in trust after the period of nonage has expired and the beneficiary upon attaining his majority is entitled to such accumulation and thereafter to the entire income without deduction.</p> <p>Decrees settling the trustees’ accounts from time to time during the minority of the beneficiary, in the proceedings for which the beneficiary was represented by his guardian, do not estop him from asserting the invalidity of the provisions for accumulation as the ultimate disposition of the accumulated income was not involved therein.</p>

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

Action to recover damages for additional burdens alleged to have been imposed upon plaintiff’s land by the raising of the railway tracks of defendant company after the acquirement of a right of way over plaintiff’s premises for railroad purposes. The opinion states the Case.

<p>Injunction — Who and what may be enjoined —■ Interference with business— Enticing away servants — Strikes.</p> <p>Where a manufacturing corporation required its employees, members of a labor union, to increase the amount of their work, without any increase in their compensation, by doing work for another manufacturer of like goods whose employees, belonging to the same union, had stopped work in consequence of a strike or lockout in their factory, the former employees, by declining to do the additional work and quitting work themselves when required to do it by their employers, were seeking to aid their fellow members of their union in a peaceable way which was justifiable and permissible. *</p> <p>And where the employer, alleging unlawful coercion, intimidation and threats by its employees who have thus quit work against its other employees, brings an action against the ofiicers and members of the union seeking, an injunction restraining them from acts of interference and assault, and a preliminary injunction is granted, and, on a motion to vacate such injunction, the alleged unlawful acts are denied and there is great conflict in the affidavits upon that subject and the charges consist of statements that must from their nature have been made on information and belief, or statements claimed to have been made by members of the union which they emphatically deny, the preliminary injunction will be vacated as to the union but permitted to stand as to the individual defendants, modified, however, so as not to prevent them from peacefully picketing in reasonable numbers, for the purpose of observation only, the plaintiff’s premises from the highways or Streets in its vicinity and endeavoring by agreement, pursuasion or appeal only, to prevent other persons from becoming employees of plaintiff, nor from peaceably assembling at any place or places in their city and with permission for future application by plaintiff to reinstate the injunction upon future change of circumstances.</p>

<p>Motion by an attorney to dismiss proceedings to compel him to pay over moneys and to punish him for contempt fo-r failure to make such payment.</p>

<p>Application for a peremptory writ of mandamus to compel the Secretary of State to file a proposed certificate of incorporation.</p>

<p>Sunday — Sunday sports — Baseball — Impeccability of score cards not assured.</p> <p>An injunction will not be granted to restrain the police from interfering and preventing' baseball playing on Sunday on the grounds of a social and athletic association to which those are admitted who go to the ticket office and buy score cards for twenty-five cents each.</p>

<p>Hearing upon a writ of certiorari.</p>

<p>Civil service — In general — Officers subject to the act — Registrar in the bureau of water in the city of Buffalo is not subject to the act.</p> <p>Mandamus — Mandamus against public officers — Duties, performance of which may be compelled — Classification by civil service commissioners.</p> <p>The classification of a particular municipal office by the civil service commission as in the competitive class does not involve a determination judicial in its character and an error may be corrected by mandamus.</p> <p>The Constitution recognizes that there are places in the civil service for which no examination is practicable and others for which competitive examinations are not practicable and for which non-competitive examinations should be held.</p> <p>Confidential positions are exempt from examination not by force of any express statute but because as to them examinations are not practicable.</p> <p>Where the commissioner of public works of a city is given charge and control of the collection of the water revenue and required to pay daily to the treasurer all the moneys he receives and at the samé time report them to the comptroller and is required to give bonds for the faithful performance of his duties and the accounting for the payment to the city of all such moneys, he is responsible for a misappropriation of such moneys by a subordinate whom he appoints and removes. *</p> <p>Where the department of public works in a city is in charge of a single elective commissioner and is divided into four bureaus each in charge of a deputy commissioner under him and he appoints such deputy commissioners and all other officers and employees of the department, tne registrar of the water bureau, whose duties are not defined by the charter or ordinances of the city blit are delegated to him by the commissioner, and comprehend the immediate supervision of many subordinates, including a cashier and his assistant through whose hands pass large amounts of public money, as well as the examination of vouchers for large expenditures, the entire control of the bureau in the absence of the deputy commissioner and the duty of hearing and adjusting complaints made by the users of water, and" where under the charter the commissioner would be responsible to the city for a misappropriation of the water revenues, the position of registrar is a confidential one and exempt from civil service examination.</p>

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

Motion to confirm the referee’s report herein and for an order reducing an assessment levied upon the property of the relator.

<p>Application for writ of peremptory mandamus for inspection of names of delegates to conventions, in possession of general committee of the Republican Party received by it from district committee to be voted for at primaries, before same are presented to electors at polling booth.</p>

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

<p>Motion to confirm report of commissioners of estimate and hearing upon objections to said report.</p>

<p>Motion to set aside awards made by commissioners.</p>

<p>Motion to vacate an order directing service upon the Manhattan Trust Company.</p>

<p>Motion to vacate and set aside an order authorizing substituted service of summons.</p>

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

<p>Pleading — Supplemental pleadings: Supplemental answer — Subsequent adjudication; Application, proceedings and order — Service of copy of proposed pleading.</p> <p>A motion for leave to serve a supplemental answer which alleges that since the institution of the action a judgment has been entered in the Supreme Court in favor of the plaintiff against the defendants in another action instituted in said court subsequently to the present action between the same parties and upon the same alleged transaction and praying for the same relief, which said judgment stands unreversed and unmodified and is a bar to this action and to the prosecution thereof, will be granted and the matter left for determination by the trial court.</p> <p>It is sufficient that a party moving for leave to serve a supplemental answer annexes to his moving papers what he states in his affidavit to be a copy of the proposed supplemental answer which it is desired to serve, although the order to show cause is for leave to serve a supplemental answer “ substantially in the form of” that annexed to the moving papers.</p>

<p>Motion for a bill of particulars in each action. ,</p>

<p>Motion by the assignee of lienor to disallow the justification of sureties on an undertaking given by the owner of certain real property for the purpose of cancelling a mechanic’s lien.</p>

<p>Motion for an order placing the cause on the Special Calendar for trial.</p>

<p>Motion to place cause on Special Calendar.</p>

<p>Motion to set aside verdict and to dismiss the complaint.</p>

<p>Pleading — Amendments — Time for amendments — Amendments at the trial.</p> <p>Where, in an action against a street railway company to recover damages for persqnal injuries, after all the proof was in •the plaintiff moved to amend Ins complaint by increasing his claim for damages, it appearing that the defendant could not have been prejudiced or surprised and it also appearing from the evidence that the claim should have been increased to permit an adequate recovery, the court properly exercised its discretion in granting the motion.</p>

<p>Motion to set aside a verdict for defendant and to direct a verdict for plaintiff or for a new trial.</p>

<p>Evidence — Weight and sufficiency — Preponderance — Balanced testimony.</p> <p>It is no longer the law in this State that, where both parties are of equally good character and unimpeaclied and as witnesses contradict each other directly upon a question of fact and their testimony is totally irreconcilable, in the absence of other testimony, the case will stand evenly balanced and the party having the burden of proof must fail; but, in such a case, it is within the province of the jury to decide between them.</p>

<p>Process — Defects and amendments — Name of party.</p> <p>An error in spelling the Christian name of a defendant named “ Edmund ” but erroneously spelled “ Edmond ” may be corrected upon motion.</p> <p>An error in spelling the surname of one of the members of a firm who is defendant “ Cracy ” instead of “ Cayce,” his correct name, but who is described as a member of such firm, will not avoid service upon him by publication where the firm received the papers mailed to him; and the error may be corrected on motion.</p>

<p>Judgment — Amendment and correction in same court — What errors or defects may be corrected — Clerical mistakes — Misnomer of party.</p> <p>In an action where the plaintiff’s name was “David” but he . was inadvertently designated in all the papers “Louis,” the error may be corrected upon motion where it does not appear that the defendant will he prejudiced thereby.</p>

<p>Railroads and railroad companies — Interest in lands and right of way — Capacity to acquire and hold — Elevated railroads.</p> <p>Eminent domain — Power in general — Persons and corporations authorized to exercise power — Elevated railway company.</p> <p>The term “railroad corporation” as used in the General Railroad Act includes elevated railroad companies and such companies may acquire lands necessary for the maintenance and accommodation of their roads.</p>

Action to declare a structure, erected upon the sidewalk in a city street, to he an unlawful obstruction to the public highway and to compel its removal.

Action to establish a trust in the proceeds of a judgment in favor of an abutting owner, against railroad companies operating railroads upon a viaduct running through the street, for damages arising therefrom.

Action to restrain maintenance of a certain wall by the defendant in connection with premises owned by him and situated at the southeast comer of Riverside drive and Eighty-ninth street, in the city of ¡New York.

<p>Judgment — Rendition — At particular stages of the action — Judgment on demurrer — Final or interlocutory judgment.</p> <p>In an action brought by the Attorney-General to annul the charter of a corporation, Avhere after issue was joined the plaintiff served a supplemental complaint, which simply contained additional allegations and further reasons for the annulment of defendant’s charter hut no allegations as to its incorporation, franchises or its business and operation, to which the defendant demurred, upon overruling such demurrer to the supplemental complaint, while the original issues remain undetermined, judgment cannot he granted for the annulment of defendant's charter.</p>

<p>Covenants for title — Validity and effect — Release or discharge of covenants — Effect of grantee’s purchase of purchase money mortgage.</p> <p>Pleading —Answer or plea — Defense of new matter — Partial defenses.</p> <p>In an action against several grantors upon the covenants of warranty and for quiet enjoyment contained in a deed of real property in which all joined, based upon an alleged eviction as to one-eiglith of the property, it is not a complete defense that a mortgage, given by plaintiff to the particular grantor of such one-eighth interest for the entire purchase price thereof, was, after the death of such grantor, purchased for less than its face by the plaintiff from his administrator who subsequently misapplied the purchase price; and an answer setting up such facts as a complete defense is demurrable.</p> <p>Nor is an alleged tender by the grantors to the plaintiff, made before the eviction, of the purchase money of said one-eighth part with interest a partial defense, as to plaintiff’s costs and expenses thereafter incurred in the action to evict him therefrom.</p>

<p>Issues of law upon demurrer to answer.</p>

Action to set aside chattel mortgage as in fraud of the rights of the plaintiffs, judgment creditors of the mortgagors, and for accounting of property received by the mortgagee when taking possession under the terms of said mortgage, and for the appointment of a receiver of the moneys which may be found due upon said accounting.

<p>Demurrer to the complaint in an action for divorce or for a separation.</p>

<p>Adverse possession — Necessity of hostility of claim — Tenants in common:— What constitutes .ouster.</p> <p>The plea of adverse possession is available to a tenant in common in a proper case against his cotenants,' the only difference being in the fact that stronger evidence is required to sustain the plea of a tenant in common than that of a stranger.</p> <p>Where, in ejectment to recover possession of an undivided one-sixth part of certain premises in the city of New York, the defense is an actual, physical, continued and notorious possession of the entire premises for more than twenty years under a deed conveying the title in fee and it appears that A. died intestate seized in fee of the entire premises in 1828, leaving her husband tenant by the curtesy and their two children, a son and a daughter, as tenants in common of the remainder in fee; that in 1845 the life tenant executed and delivered to the son two bargain and sale deeds of the entire premises, the last of which was not recorded until 1903; that the.son entered into possession and received the rents prior to the year 1860; that the life tenant died in" 1866 and the son continued in possession and collected and retained the entire rents until his death in 1901, and that thereafter his heirs have continued in possession and received the entire rents; and where it further appears that the interest claimed by the plaintiff is deduced from the daughter of the original owner, the defendants are entitled to judgment. .</p> <p>The possession of the son commencing upon the death of the life tenant in 1866 as a tenant in common had ripened into an adverse possession and amounted to an ouster of his cotenants and made his possession no longer theirs but solely his-as a sepa- . rate and hostile owner.</p>

<p>Landlord and tenant — Rent and advances — Eviction — Liability of tenant for subsequent deficiency in rent.</p> <p>• A landlord may maintain an action upon the tenant’s covenant in a lease to pay deficiency in rent accruing after a re-entry by summary proceedings.</p>

<p>Corporations — Mode of entering into obligations and power of officers to make, contracts — Estoppel to deny authority to contract.</p> <p>Negotiable instruments — Indicia or requisites— Consideration — Sufficiency.</p> <p>.Where a corporation has received the benefits of its promissory notes signed by its _ president and no question of fraud or bad faith is raised, the notes are valid obligations against the maker and indorser, though the by-laws of the corporation provide that its notes must be signed by its president and countersigned by its treasurer.</p> <p>That the notes were given in payment of a pre-existing debt was sufficient to constitute value under section 51 of the Negotiable Instruments Law.</p>

<p>Action of replevin.</p>

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

<p>Trade marks and trade names — What may hé appropriated — Names of persons.</p> <p>Where one interested in the manufacture of a certain kind of soap, claimed to possess special merits and extensively advertised and known by his name, sells out the business and all trade marks, copyrights and privileges of every name and nature whatsoever appurtenant to the ownership theteof to one who continues to make, advertise and sell the soap under the same name, he may not thereafter engage in the manufacture of a new kind of soap and call it by his name when the public will be misled thereby.</p>

<p>Action for an accounting by trastees, their removal and the distribution of the trust fund.</p>

<p>Wills — Interpretation and construction — Terms defining the nature and quality of estates or interests — Future interests and vesting, possession and enjoyment — Direction to pay, etc., at future time — Where gift is positive and direct.</p> <p>Conversion, Equitable — How and in what cases effected — By testamentary direction to sell realty:—‘Discretionary or mandatory character of direction.</p> <p>. Where a testator, leaving a widow and eight children, gave by his will his real and personal estate to-his executors, during the life' of his widow, to invest all moneys not needed for use and pay over the income thereof with the net income of his real estate to his widow and, upon her death, directed his executors to divide the residue of his estate real and personal into eight shares and to pay and transfer to each child one of such shares on arriving at the age of twenty-one years, adding, “ to whom I give, devise and bequeath the same to be thereafter held by him, my said son, his heirs and assigns forever; and until my said son shall arrive at the age of twenty-one years, I give, devise and bequeath such portion or share to my said executors, in trust, to pay over the net income thereof to my said son,” but in the case of his daughters providing for a life tenancy while their husbands lived and the remainder to their Children; and where the executors were given a discretionary power to sell or lease the real estate and to remortgage for the purpose of paying off existing mortgages, held, that it was testator’s in-</p> <p>• tention to vest the whole of his estate in his eight children living at his death, but postponing the possession and enjoyment of the real estate during the life of his wife, and that an equitable conversion was not intended.</p>

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

<p>Parties — Objections and waiver thereof — Objections — Manner of raising objections — By pleading.</p> <p>Conversion, Tortious — What constitutes — Property subject of — Money in bank.</p> <p>The defendant may not avail himself of the defense that the plaintiff is not the real party in interest unless he has pleaded it.</p> <p>Where plaintiff agrees with defendant, who has a contract with a hotel company, to furnish butter to the hotel, part of the proceeds to remain plaintiff’s property and to be deposited in bank to meet defendant’s checks, drawn in advance of the deposit, by which the money was to be transmitted to plaintiff; and where the money is deposited accordingly to meet a certain check sent plaintiff by defendant but defendant stops payment of the check and draws out the money and applies it to his own use, the plaintiff may maintain an action for conversion against him.</p> <p>As between the parties the money belonged to plaintiff, though deposited in" defendant’s name, and as to such money defendant was merely plaintiff’s agent.</p>

<p>Appeal from an order of the City Court of the city of Hew York, denying part of defendant’s motion for a bill of particulars.</p>

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

<p>Appeal by the defendant from an order entered in the City Court of the city of Hew York in favor of the plaintiff.</p>

<p>Appeal from an order of the City Court 'of the city of Hew York, denying defendant’s motion for leave to file with the clerk of the City Court a copy of an order in place of the original which was destroyed.</p>

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

<p>Summary proceedings — Adjournment of proceedings — When error to refuse.</p> <p>In summary proceedings against a tenant alleged to be holding over after the expiration of his term, the request of the tenant for an adjournment of one day to prepare for trial, made at the time of joining issue, should be granted; and, where such request was denied, and the tenant’s default was taken, such default should be opened; and an order denying the tenant’s motion to open the default will be reversed, on appeal therefrom, and the motion will be granted.</p>

Appeal by defendants from an order of the City Court of the city of Hew York denying their motion to set aside the judgment entered against them by default.

<p>Appeal from an order of the City Court of the city of Few York directing appellant to execute and deliver to plaintiff a certificate of satisfaction of the judgment entered on April 9, 1907, and in default thereof that the clerk of the court satisfy the same.</p>

Appeal by the plaintiff from an order of the Special Term of the City Court of the city of Hew York, vacating and setting aside an execution against the property of the defendant upon a judgment entered in favor of the plaintiff.

<p>Case — Scope and contents — Matters to be included in general.</p> <p>In the settlement of a case on appeal, it is the duty of the trial court to see that the case contains substantially all that transpired at the trial, to the end that the ultimate rights of both parties may be intelligently considered and effectually conserved.</p> <p>Where the defendants appeal from a judgment against them on a claim alleged to have been assigned to the plaintiff by a corporation, the case on appeal should contain the paper claimed as the assignment and the resolution of the board of directors claimed to authorize its execution, received over defendants’ objection, which were attached together by plaintiff’s attorney on the trial, and the colloquy between court and counsel containing the statement of defendants’ objections and what took place with respect to attaching together the assignment and resolution after they had been offered separately and objected to by defendants.</p>

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

<p>Municipal Courts — Review — Judgments and orders reviewable — Order on appeal from taxation of costs.</p> <p>An order, made on appeal from the taxation of costs in the Municipal Court of the city of New York by which defendant was allowed ten dollars costs to be deducted from the costs recovered by plaintiff in his judgment, which was modified accordingly, is not an appealable order.</p>

<p>Municipal Courts — Review — Judgments and orders reviewable — Order on opening default; Order on appellant’s own motion.</p> <p>Where defendant moves to open its default and the motion is granted on the payment of costs and the deposit of the amount of the judgment with the clerk, the defendant cannot appeal from such order, nor from so much thereof as imposes the terms, for the reason that a party may not appeal from an order granted on his own motion and for the further reason that an order opening a default is not an appealable order.</p>

Appeal by judgment debtor from an order of the Gity Court of the city of New York adjudging him guilty of contempt in failing to appear for examination in supplementary proceedings.

<p>Summary proceedings — Sufficiency of affidavit or petition — Waiver of objections.</p> <p>Where, in summary proceedings to remove a tenant and under-tenant holding over after the expiration of the term, the landlord’s petition states no fact upon which his right to possession could be based, the court acquires no jurisdiction.</p> <p>Where the petition in such case sets forth that the petitioner is a lessee of the premises in question under a lease from the owner executed July 30, 1907, but also contains the further statement that said owner did not acquire title to the premises until August 3, 1907, it will not be assumed that the delivery of petitioner’s lease was subsequent to the time that the owner of the premises was empowered to contract with reference thereto; such petition is, therefore, defective under section 2235 of the Code of Civil Procedure which requires that the petition shall state the “ interest ” of the petitioner in the demised premises.</p> <p>An objection to a jurisdictional defect in a petition in summary proceedings is not waived by an answer.</p>

<p>Appeals by a third party from four orders of the City Court of the city of ¡New York entered in favor of the judgment creditors.</p>

<p>Pleading — Answer or plea — Denials and traverses — Denial of knowledge or information — As to truth or falsity.</p> <p>Where, in an action for negligence, the complaint alleges that the defendant, the owner of certain premises, carelessly and negligently maintained them by permitting two boards to project beyond the stoop line into the street, and, in paragraph III, alleges that on a certain day “the plaintiff, while lawfully passing along said street and avenue, and without any negligence on her part, and solely because of the negligence and carelessness of the defendant, as aforesaid, was struck on the feet and caught by said boards, and violently thrown to the ground,” the defendant, under an answer denying “ any knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in the paragraph of the complaint numbered ‘ III ’ ” is entitled to introduce testimony bearing upon the issues raised thereby, and the exclusion of any evidence bearing upon his freedom from negligence is error.</p>

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

<p>Brokers — Compensation: Right to compensation — In general; Actions — Instructions.</p> <p>' In an action by a broker to recover commissions for the sale of goods, it is error to charge the jury that, if the sale of the goods was the result of negotiations started by the plaintiff, he is entitled to recover; and a subsequent charge, stated in the disjunctive and as a separate and distinct principle, that to recover the plaintiff must prove that it was through his efforts and influence the sale was effected, does not cure the error.</p>

<p>Appeal by the plaintiff from a judgment in favor of defendant rendered in the Municipal Court of the city of Hew York, second district, borough of the Bronx, dismissing the complaint with $30 costs.</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 the Bronx.

Appeal by the defendant from a judgment of the City Court of the city of New York, entered in favor of the plain tiff by direction of the court, and from an order denying defendant’s motion for a new trial.

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

<p>Carriers — Carriage of passengers — Ejection of passengers — Manner of ejection.</p> <p>Where a person boards a street car and offers the conductor in payment of his fare a transfer which he has received from another line, but the conductor says it is no good and he will have to pay another fare or get off and he says he will get off when, the car stops, he is entitled to the same consideration as if he had paid his fare and to a reasonable opportunity to alight; and, where the conductor kicks the bundle he is carrying into the street and gives him a punch in the eye and he falls from the car and his goods are ruined, the railroad company is liable for the damages he sustains. . • .</p>

<p>Carriers — Carriage of passengers — Ejection of passengers — Manner of ejection.</p> <p>Pleading — Amendments — Amendments by leave of court — Amendment to conform to proof.</p> <p>Municipal Courts — Review — Amendments and additional proofs — Amendment to conform to proof.</p> <p>Where a passenger on a street ear, having paid the fares of himself and his companion, asked the conductor for transfers, but the conductor, instead of giving him the transfers, punched him off the platform and then had him arrested, and these facts are proved in an action brought by him against the railroad company in which the complaint is for the arrest and for malicious prosecution but does not mention the assault, it is error to dismiss the complaint, which should be amended to conform to the proof so as to promote substantial justice.</p>

<p>Carriers — Carriage of passengers — Liability for personal injuries to passengers — Actions by passengers for personal injuries — Sufficiency of evidence as to negligence — Setting down passengers —■ As to sudden movements of car.</p> <p>Where a passenger upon a street car signals the conductor to stop and while the car slows down goes to the rear platform and stands there waiting to alight when the car stops, but the car, after having come nearly to a standstill, suddenly increases its speed so as to throw her into the street, the evidence of negligence on the part of the railway company is sufficient to sustain a judgment in her favor.</p>

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

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

Appeal by the plaintiff from a judgment rendered in his favor and against the defendant in the Municipal Court of the city of Hew York, thirteenth district, borough of.Manhattan, and from an order vacating an order modifying the judgment.

Appeals by plaintiff from two judgments of the Municipal Court of the city of ETew York, eighth district, borough of Manhattan, rendered in favor of the defendants.

<p>Foreign corporations — Recognition, regulation and status — Transfer books and agents — Penalty for nonexhibition of books — Motive of stockholder.</p> <p>Where, after actions brought by a stockholder of a foreign corporation, other than a moneyed or railroad corporation, doing „ business in this State, to recover penalties under section 53 of the Stock Corporation Law (L. 1892, eh. 688) because of a refusal to permit him to inspect the stock-book of the corporation, had been tried and were sub judice, the plaintiff is permitted to inspect and make extracts from the stock-book; and the next day his demand for further inspection for the purpose of making a complete transcript of the stock-book is refused, unless he state the purpose for which he sought the transcript, and he refuses to disclose his purpose, merely stating that he did not seek the inspection for a purpose hostile to the interests of the corporation; and, on the trial of the action to recover a penalty for the latter refusal under section 53 of the Stock Corporation Law, plaintiff testifies that the only reason he sought a complete list of the stockholders was to facilitate him in circularizing, to effect the sale of stocks in other companies in which he was interested, and that he had within four months brought fourteen suits of a similar character, a judgment in his favor should be reversed.</p>

<p>Municipal Courts — Jurisdiction — Municipal Court—Equitable defense.</p> <p>Equity — Nature and grounds of jurisdiction — Equitable defenses in actions at law.</p> <p>Evidence — Parol evidence — Invalidating written instrument — Fraud.</p> <p>Though, in an action brought in the Municipal Court of the city of New York upon an alleged written contract, fraud may not be proven as the basis for affirmative relief, it is always available as a defense to a claim founded on contract.</p> <p>Where, in an action upon an alleged written contract for the payment to plaintiff of fifty dollars for inspecting defendants’ electrical installation for the purpose of determining the correctness of charges for electrical current, which contract provided that the plaintiff would, without extra charge, obtain the lowest rate for the defendants’ electrical current, test their meters, examine their meters whenever necessary and audit their future bills, as also those of the preceding year and a half, in which contract the plaintiff guaranteed “to obtain at least forty per cent rebates on all overcharged bills to date or refund the fee paid under this contract,” the defendants in their answer allege that there was a parol agreement to the effect that plaintiff should audit their bills for a year and that the fifty dollars should not be paid until plaintiff had obtained a rebate of forty per cent on all their bills for the past year .and a half, and defendants then plead that they were induced to sign the paper on which the action was brought through the misrepresentation of the plaintiff’s soliciting agent that the writing embodied the oral agreement; that they did not intend to make or deliver the agreement which they signed and that they were induced to do so solely by reason of the “ deception, fraud and artifice” practiced by such agent, the testimony of one of the defendants as to the statements made to him by plaintiff’s soliciting agent about the contents of the paper sued on and as to whether he would have signed the contract if he had known that it provided that defendants were to pay fifty dollars for a simple certificate of inspection is admissible and its exclusion is error for which the judgment in favor of plaintiff will be reversed.</p> <p>The defense interposed and sought to be proven was not to the contract but to the instrument which purported to represent the contract and the reception of the testimony would not have offended the rule that, parol evidence is inadmissible to vary the terms of a written contract.</p>

Appeal by defendant from a judgment of the Municipal Court of the city of Hew York, twelfth district, borough of Manhattan, in favor of plaintiff for $333.91 damages and costs.

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

Appeal by the plaintiffs from a judgment of the City Court of the city of Yew York entered in favor of the defendant by direction of the court, and also from an order denying plaintiffs’ motion for a new trial.

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

<p>Appeal from an order of the City Court of the city of Hew York setting aside a verdict in favor of plaintiff, and from the judgment entered on such order dismissing the complaint.</p>

Appeal by the defendant from a judgment of the Municipal Court of the city of ISTew York, sixth district, borough of Manhattan, rendered in favor of plaintiff for seventy-eight dollars and seventy-eight cents.

Appeal by defendant from a judgment of the Municipal Court of the city of Hew York, sixth district, borough of Manhattan, in favor of the plaintiff for $119.03.

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

<p>Municipal Courts — Review: Mode of taking — Subsequent modification of .judgment; Decision — Modifying order.</p> <p>Where, after the defendant has appealed from a judgment of the Municipal Court of the city of New York, it. is modified on plaintiff’s motion to correct an error and increased by the amount of twenty dollars, and the defendant appeals from the order modifying the judgment but does not bring another appeal from the judgment, the order modifying the judgment, being within the power of the court and justified by the facts, will be affirmed and the appeal from the judgment before it was modified will be dismissed. -</p> <p>And, where the order modifying the judgment contained a provision requiring defendant to file a new notice of appeal and file and serve a new undertaking, the order will be modified by striking such provision therefrom.</p>

Appeal by plaintiff from a judgment of the Oity Court of the city of ¡New York, setting aside a verdict for $400 in his favor, and dismissing his complaint upon the merits, with costs to each of the defendants.

Appeal by the defendant from a judgment in favor of the plaintiff rendered in the Municipal Court of the city of Mew York, fifth district, borough of Manhattan; and also from an order denying defendant’s motion to set aside a verdict and for a new trial.

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

Appeal by the defendant from a judgment of the City Court of the city of Yew York in favor of the plaintiff for $1,059.30, and also from an order denying defendant’s motion for a new trial.

Appeal by the defendant from a judgment of the City Court of the city of 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.

<p>Mechanics’ liens — Consent of owner — Consent to improvements by tenant — Repairs.</p> <p>Where the duty of keeping leased premises in good order and repair is imposed upon the tenant as an obligation and condition of the lease, one who, upon the employment of the tenant and without obtaining any formal consent of the owner of the premises, performs labor and furnishes material in connection with the repair of an elevator on the premises is not entitled to a lien thereon under section 3 of the Mechanics’ Lien Law (L. 1897, chap. 418), which provides that a contractor or materialman who performs labor or furnishes material for the improvement of real property with the consent or at the request of the owner thereof shall have a lien, etc.</p>

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

<p>Limitation of actions: Accrual of cause of action — Demand or notice of adverse claim — Demand notes: Pleading and evidence — Presumptions and burden of proof.</p> <p>Taking case from jury and nonsuit — Direction of verdict or nonsuit on opening statement of counsel.</p> <p>A right of action upon a demand note is complete upon its delivery and a provision that it shall bear interest does not change the rule 5 and, in an action on said note, the failure to allege the making of a demand of payment does not furnish ground for a dismissal of the complaint.</p> <p>Where the complaint upon a demand note shows upon its face that more than six years have elapsed since the cause of action accrued and defendant pleads the Statute of Limitations, the burden of showing that the running of the statute has been suspended is upon the plaintiff.</p> <p>Where, to a complaint upon a demand note made in 1898, defendant’s answer is a general denial and the Statute of Limitations, the order dismissing the complaint upon the summons, complaint and answer and upon plaintiff’s statement upon the record that the note in suit is lost'and that no bond has been given by plaintiff to indemnify defendant must be reversed.</p> <p>It not appearing when the note in suit was lost and the complaint being dismissed at the very opening of the trial and before any opportunity had been given to plaintiff to furnish a bond of indemnity under section 1917 of the Code of Civil Procedure, a contention that the complaint was properly dismissed is without merit.</p>

<p>Appeal by the plaintiff from an order of the City Court of the city of New York setting aside a verdict in favor of the plaintiff and granting a new trial.</p>

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

<p>Appeal by George Schleicher and George Schleicher Company from a judgment of the Municipal Court of the city of New York, first district, borough of Manhattan, in favor of plaintiff and against George Schleicher Company for $65.72.</p>

<p>Sales—Remedies of seller — Action for price — Defenses — Misunderstanding as to identity of seller.</p> <p>Where, in an action brought to recover for certain bluestone to be used in defendant’s building then in process of erection, the plaintiff’s evidence that he alone was the owner of the stone is</p> <p>' unchallenged and the testimony of the defendant is that he thought or supposed he was dealing with plaintiff as an officer of a corporation because of prior transactions with it, plaintiff is entitled to recover.</p>

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

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

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

<p>Appeal by the plaintiff from an order of the City Court of the city of Hew York, denying a motion for a new trial.</p>

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.

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

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

<p>Calendar — Order on calendar — Preference — Proceedings to obtain preference — Notice of application for preference.</p> <p>Although it appears upon the face of the complaint that plaintiff is entitled to a preference under subdivision 5 of section 791 of the Code of Civil Procedure, he will be deemed to have waived such right, in an action in the City Court of the city of New York, by his failure to serve notice of application for such preference with his notice of trial.</p>

<p>Reference — Questions ' and actions compulsorily referable — Long accounts in general — When collaterally raised.</p> <p>In an action by a physician to recover for medical services, rendered to defendant’s wife during a period of about ten months while she was suffering from a single malady, the different visits and telephone calls do not constitute a long account which is the immediate object of the action but the account of them is only collaterally involved; and a compulsory order of reference’, granted on plaintiff’s motion, should be reversed.</p>

Appeal by the defendant from two orders in favor of the plaintiff rendered in Municipal Court of the city of Hew York, fifth district, borough of Manhattan.

Appeal by the plaintiff from an order of the Special Term of the City Court of the city of Mew York, granting defendants’ motion to vacate a judgment entered upon an inquest.

<p>Municipal Courts — Review — General power of appellate court; Decision. '</p> <p>The court is not authorized, upon the reargument of a motion to set aside a verdict in the Municipal Court of the city of New York, more than five days after judgment was rendered, to make an order vacating the judgment against the objection of the opposing party; but, where such an order was made on defendant’s motion and the order awarded costs to the plaintiff and the plaintiff’s attorney accepted and retained the costs, the plaintiff is thereby precluded from appealing from the order.</p>

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

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

<p>Mew promise — Mecessity of writing — Debt discharged in bankruptcy.</p> <p>Where a creditor, whose debtor had been discharged in bankruptcy, met the debtor and said to him he was hard up and would like the debtor to pay him, and the debtor gave him a dollar and said he would pay him the balance later, the debtor’s obligation to pay the balance was not thereby renewed.</p> <p>Partial payment does not suffice to renew the obligation and a new promise is required by the Statute of Frauds to be in writing.</p>

<p>Undertakings — Liability on undertakings — Action on undertaking — Parties.</p> <p>.. The undertaking required by statute to be given by the plaintiff in an action in the Supreme Court upon-obtaining an order for defendant’s arrest secures not only the taxable costs recoverable where defendant succeeds in the action but counsel fees in efforts to vacate the order of arrest, in securing bail and in the trial of the case and for loss of earnings during imprisonment; and, where the defendant recovers judgment for costs and assigns it to one person and then assigns the undertaking to another, the assignee of the judgment cannot maintain an action on the undertaking without joining the assignee of the undertaking as a party.</p>

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

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

<p>Appeal by the defendants from a judgment in favor of the plaintiff, rendered in the Municipal Oourt of the city .of New York, eleventh 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 Hew York, eighth 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 Hew York, fourth district, borough of Manhattan.

Appeal by the defendant from a judgment in favor of the plaintiff for the sum of $1,591.25, entered in the City Court of the city of Hew York, after a trial before the court and a jury.

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

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

<p>Conversion (Tortious) — What constitutes—In general.</p> <p>Where the president and treasurer of a corporation, who draws money from the corporation for any purpose for which he needs it and it is charged to him on the books, when about to go abroad on the business of the corporation arranges for drawing money while absent and draws it accordingly and it is charged to him; and where, out of the money thus drawn, he loans a sum to a person who afterwards repays him, the moneys thus repaid are not the moneys of the corporation and the latter cannot maintain an action for their conversion against him.</p>

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

Appeal by the defendants from a judgment of the City Court of the city of New York and also from an order denying a motion for a new trial.

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

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

<p>Appeal by the defendant from a judgment of the Municipal Court of the city of Hew York, thirteenth 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 TSTew York, second district, borough of Manhattan.

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

<p>Negligence — Actions—■ Right of action, etc.— Parties.</p> <p>In an action to recover for damages to goods caused by the leakage of water pipes that were being put into the building where, the goods were stored, by a contractor, all the owners of the goods must be joined as parties and the action cannot be maintained by one of several owners.</p>

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

<p>Master and servant — Liability for injuries to third persons — Actions — Weight and sufficiency of evidence; Instructions.</p> <p>In an action to recover for personal injuries resulting from plaintiff’s being struck by defendant’s automobile, where defendant testifies that his chauffeur, who was running the machine, was acting at the- time without authority and against his express command, it is error to charge the jury that they may consider as proof of the chauffeur’s authority the fact that defendant did not deny such authority at the time he was served’ with the summons.</p>

<p>This is an appeal by the defendant Dora Dnbinsky from a judgment of the Municipal Court of the city of Mew Tork, second district, borough of The Bronx.</p>

Appeal by the defendant from a judgment and order of the Municipal Court of the city of Hew York, first district, borough of Manhattan.

<p>Sales — Remedies of purchaser — Rescission — Necessity for return of goods.</p> <p>Where the purchasers of a blower, a heavy piece of machinery weighing some 1,800 pounds erected in their factory, rescind the contract of sale for breach of warranty, it is not necessarily incumbent upon them to remove the blower and actually deliver it to the seller.</p>

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

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