Volume 57 — New York Miscellaneous Reports

<p>Combinations — Monopolies in the manufacture, etc. of commodities in common use — What are commodities in common use.</p> <p>The general purpose of chapter 690 of the Laws of 1399 (Donnelly Anti-Trust Act) is to destroy monopolies in the manufacture, production and sale in this State of commodities in common use; and, in this respect, it is little more than a codification of the common law upon the subject and is to be construed with reference thereto.</p> <p>A telegraph company does not manufacture, produce or sell a commodity or article in common use such as is within the prohibition of said act. x</p> <p>Where, therefore, the Attorney-General, upon a petition setting forth that he intends to bring an action under said act against two domestic telegraph companies; that said companies have entered into an agreement to charge rates mutually agreed upon for the transmission of telegrams specifying various charges agreed to be made for the transmission of telegrams to various points; that said rates of charge have been materially increased by both companies and that the agreement constitutes a combination whereby a monopoly in the receipt, transmission and delivery of telegrams in this State is maintained, competition in the price of transmitting telegrams is prevented and the free pursuit of such business is restricted and prevented, • orders, granted ex parte, directing the officers and directors of the two telegraph companies to appear before a referee to testify regarding such agreement and to produce before said referee various contracts, books and papers of said companies which contain evidence of the terms of the arrangement between them, will, on motion, be vacated and set aside.</p>

<p>Attorney and client — The relation with the client — Duties and liabilities of attorney to client — Liability foYmoney collected. Conversion (Tortious) — What constitutes — Deposit of client’s money in bank By attorney.</p> <p>Where an attorney deposited the money of his clients in his own name and to his own credit in the bank in which he had carried his account for twelve years and which had been doing business for over sixty years and which was given a high rating in the commercial agencies and enjoyed the confidence and had the accounts .of many prominent customers, and the attorney’s course was not in violation of the instructions of his clients; and where the bank failed and a dividend of forty per cent, was declared on deposits therein, a motion to compel the attorney to make good to the clients the money lost will be denied.</p>

Certiorari proceedings to review local assessments levied by city of Buffalo to collect one-half expense of dredging city ship canal.

Certiorari proceedings to determine the validity of two local assessment rolls of the city of Buffalo to raise money to pay one-half the expense of dredging Buffalo river.

<p>Motion to compel the police commissioner of the city of New York to make a further return to a writ of certiorari.</p>

<p>Application to punish the respondent for contempt for disobedience to a writ of habeas corpus.</p>

Application to review the determination of the board of elections of the city of New York. The nature of the'proceeding and the material facts are stated in the opinion.

<p>Return to an order to show cause.</p>

<p>Sunday — Consents and theatrical entertainments — What are prohibited.</p> <p>The provisions of section 1481 of the charter of the city of New York which, after declaring unlawful certain specified performances or entertainments on Sunday, declares unlawful “ any other entertainment of the stage ” is to be broadly interpreted and not to be restricted to other entertainments of like nature to those specified, and should be held to prohibit all performances in theaters or places of public amusement and entertainment on Sunday.</p>

<p>Municipal corporations — Fire department — Proceedings to remove assistant engineer — Abolishing office.</p> <p>Where the commissioners of a municipal fire department have authority to remove an assistant engineer only in the manner pointed out by the charter, they cannot, by changing the name of the office and dividing the municipality into two districts and limiting the responsibility of each of two officers to one of such districts, while imposing upon each duties exactly such as would be appropriate to an assistant engineer, and passing a resolution abolishing the office of assistant engineer, effect such an abolition of the office as will accomplish the removal of an incumbent without the formalities which the statute requires.</p> <p>The Supreme Court at Special Term will not review the action of the Appellate Division in granting an alternative writ of mandamus upon appeal from an order of the Special Term denying a motion therefor.</p>

<p>Fraternal and Mutual Benefit Associations — Forfeiture, suspension or resignation — Suspension or expulsion of member — Grounds and procedure.</p> <p>Religious Societies — Jurisdiction of courts — Matters of doctrine.</p> <p>Where the president of a society that appears to be a benefit society rather than a society for divine worship or other religious observances, declaring himself to be boss, expels a member without submitting the question of his guilt or innocence to Ms fellow members and upon grounds not made a cause of expulsion by the ■ constitution of the society, a question of faith, doctrine and discipline of a church or its officers is .not involved such as will prevent the courts from interposing to prevent the member from being unlawfully deprived of Ms rights.</p>

<p>Mandamus — Procedure and relief — Violation and punishment — What constitutes violation.</p> <p>Where a peremptory mandamus is granted restoring a person to a position in the public service in a department of municipal government, there must be a restoration in. fact, and not simply in form, to the relator’s previous standing in the department, with an assignment to the duties that attached to the position at the time of his discharge or to duties substantially similar thereto.</p>

<p>Application for a peremptory writ of mandamus. The opinion states the case.</p>

<p>Motion to vacate an order extending a municipal lien filed for agreed price of materials not yet furnished.</p>

<p>Motion to confirm the report of commissioners for damages paused by change of grade in a village street.</p>

<p>Insane persons — Guardianship — Appointment, qualification and tenure of committee — Removal — Grounds.</p> <p>Where grave disagreements and violent conflicts between two surviving members of the committee of the estate of an incompetent have resulted in expensive and unnecessary litigation seriously detrimental to the interests of the estate, a disinterested and well qualified committee will be substituted, although the disagreeing members of the committee have come to an understanding which it is not clear to the court has for its main consideration the welfare of the incompetent.</p>

<p>Insane persons — Guardianship — Appointment, qualification and tenure of committee — Removal — Power of court after final order.</p> <p>Where a motion is made for a stay continuing the committee of an incompetent, after their removal by the court and the approval and filing of the bond of the substituted committee, and pending an appeal from certain parts of the order of removal; and also a motion to resettle the order of removal, and, in effect, to reverse and nullify it because, as urged, the members of the removed committee have agreed to work in harmony, such motions will be denied for want of power; but, by consent of all parties, said order may be amended nunc pro tunc as to the amount of referee’s and stenographer’s fees inadvertently omitted.*</p>

<p>Motion for a stay pending an appeal.</p>

<p>Discovery and inspection — Inspection of books, papers and premises — Right to remedy — To frame pleadings^</p> <p>Where the materiality of a deed, which plaintiff seeks to have set aside for fraud, distinctly appears, plaintiff’s motion for a discovery and inspection thereof, so that he may be able to show in his complaint whether or not said deed bears his signature or whether it was used under the circumstances charged in Ms moving affidavit, will'be granted.</p>

Motion to continue a preliminary injunction granted in an action against labor unions for damage to plaintiff’s business.

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

<p>Motion for an injunction pendente lite in an action to restrain the publication of a proposed magazine.</p>

<p>Partnership — Firm name, trade-mark and good-will — Firm name — Continuing use after dissolution.</p> <p>An outgoing partner is so interested in being freed from any liability that might otherwise attach to him in favor of third persons who deal with the remaining partner under táe old firm name that he is entitled to insist that the latter, as purchaser of the good-will and assets of the copartnership, shall either cease to list his telephone and business number under the style of the former firm or comply with the statute (L. 1897, ch. 420, §§ 20, 21) which requires the real facts to he made a matter of public record, from which it will appear who are the members of the firm.</p>

<p>Jurisdiction — Jurisdiction of particular courts: Federal Courts; Conflicting State and Federal jurisdiction — In respect to receivership of insolvent corporation.</p> <p>Corporations — Insolvency and receivers—Receivers, etc.— When appointed at suit of the people.</p> <p>The fact that a Federal Circuit Court, upon the application of foreign corporations which were merely general creditors and without notice to the Attorney-General or any other public official of this State, appoints receivers of a domestic street railway company will not preclude' the State from revoking the charter of such corporation in a proper ease, and thus protecting its own rights and the interests of those resident within its territory.</p> <p>Where foreign corporations which were merely general creditors of the defendant, a domestic street railway company, filed a bill in equity against it in a Federal Circuit Court and prayed that receivers be appointed for the purpose, among others, of protecting the corporate franchises, privileges and property and of preserving the corporate existence of the defendant, and defendant’s answer, filed the same day, confesses the allegations of the bill and defendant made no opposition to the appointment of receivers and by subsequent order the receivership was made. permanent, and it does not appear that the usual notice of motion was given or that any order to show cause why receivers should not be appointed was ever made or served, it is the duty of the Supreme Court of this State, in an action subsequently brought by the Attorney-General for the purpose of terminating the corporate existence of defendant by forfeiting its charter upon the ground, as alleged in the complaint, that the defendant corporation “ has remained insolvent for at least one year,” where the allegations of insolvency are established, to appoint receivers of “the defendant upon motion of the Attorney-General, with instructions not to molest or interfere with defendant’s property in the posL session of the receivers of the Federal Court, and with further instructions to apply to and request the Federal Court, on behalf of the State Court, to relinquish its control over the corporate rights, privileges, franchises and property involved.</p>

<p>Motion for the appointment of a receiver.</p>

<p>Pleading — Complaint or declaration — Conformity to process — Parties.</p> <p>A complaint, which states that the plaintiff is suing in behalf of himself and all other stockholders of the defendant corporation, is inconsistent with a summons in which the plaintiff appears as suing- individually and alone; and a motion to strike out the complaint must be granted unless the plaintiff avails himself of the power conferred upon the court by section 723 of the Code of Civil Procedure and moves to amend the summons to conform to the complaint.</p>

<p>Motion to compel plaintiff to accept service of amended •answer.</p>

<p>Divorce — Trial — Trial of issues of fact by jury — As to what issues the right exists.</p> <p>Jury — Right to jury trial — Divorce.</p> <p>Where the only issue in an action for divorce is the marriage of the parties, there is no authority for its submission to a jury.</p>

<p>Jury — Special or struck jury — Grounds — In New York county.</p> <p>Under the conditions now existing in the county of New York, it is impracticable to enforce the provisions of statute for a struck jury, in an action for libel, instituted by a well-known public man against the owner of a newspaper having a wide circulation among the citizens.</p> <p>It is a matter of common knowledge that juries are easily obtained in the city of New York to fairly try actions for libel brought by public officers against newspapers; and where, in the motion papers for a struck jury, there is not even a. suggestion that a fair and impartial trial cannot be had before a jury impanelled in the ordinary way, a motion for a struck jury will be denied.</p>

<p>Motion for a retaxation of costs.</p>

<p>Motion to cancel a lis pendens. .</p>

<p>Mechanics’ liens — Discharge, satisfaction and termination — Neglect to enforce; notice of lis pendens.</p> <p>The commencement of an action to foreclose a mechanic’s lien is not alone enough to continue the lien in effect beyond the period of one year limited by the statute, but a notice of the pendency of such action must also be filed.</p> <p>Where an action to foreclose a mechanic’s lien is commenced within the year but is afterward dismissed for failure to prosecute, whether such action is effective to extend the lien, qucere.</p>

<p>Divorce — Judgment and costs — Entry—May not be compelled by guilty defendant.</p> <p>Where the plaintiff in an action for absolute divorce against her husband, upon statutoi-y grounds, obtains an interlocutory judgment in her favor, the defendant cannot compel the entry of a final judgment, against the objections of the plaintiff who is innocent and desiz-ous of a z-econczliation which she hopes that time wil 1 bring and who does not wish to avail herself 'of her statutoi-y rights.</p>

<p>Motion tó set aside verdict.</p>

<p>Appeal — Time of taking — Notice of entry'of judgment or order— Sufficiency of notice — Misspelling of plaintiff’s name — Service after stay of proceedings.</p> <p>A notice of the entry of judgment is not a nullity on account of the misspelling of the plaintiff’s name by adding a letter which does not change its sound, nor because the notice is partly printed and partly written.</p> <p>A notice of entry of judgment, however, which is served by the plaintiff in violation of a stay of proceedings granted by the trial justice, is ineffectual to limit thg time for appeal.</p>

<p>Damages — Writ of inquiry and assessment of damages by judge or sheriff’s jury,— Setting aside writ.</p> <p>An inquisition by a sheriff’s jury will not be set aside simply because of the admission of improper evidence, but only where it appears that injustice has been done.</p> <p>It is not to be expected that a sheriff will be competent to apply the rules of evidence with the same strictness or accuracy as a judge trained in the law; and, where the jury may possibly have given a little more damages than they otherwise would if certain objectionable evidence had been excluded, though this is not apparent but only problematical and doubtful, and where, leaving out of consideration such evidence, there remains ample competent testimony as to the serious character of plaintiff’s injuries and their effect upon his ability to earn a competent and sufficient livelihood for himself and family, and where it cannot be said that the verdict rendered was unfair, unjust or excessive, the inquisition will not be set aside.</p> <p>The counsel for the parties have no legal right to sum up the case to a sheriff’s jury; but, where both consent to it and avail themselves of the privilege, the inquisition will not be set aside, though it appears the counsel for the prevailing party used improper and intemperate expressions and displayed greai zeal and ardency in beh-alf of his client, and, i perhaps, went beyond the bounds of legitimate advocacy.</p>

<p>Motion to vacate a judgment.</p>

<p>Eminent domain: Power in general — Interference with waters used for domestic and other purposes: Condemnation proceedings; Time to institute proceedings — Proceedings prematurely instituted; Filing survey and map bf lands — Sufficiency of map and profile filed; Time and mode of determining issues — Pleading — Answer — Denial of plaintiff’s incorporation ineffective to raise issue;' Sufficiency of evidence — As to inability to agree with owner.</p> <p>Where, in a proceeding for the condemnation of real property, the petition alleges the due incorporation of the plaintiff and the answer does not affirmatively allege that the plaintiff is not a corporation, under the provisions of section 1776 of the Code of Civil Procedure the plaintiff need not prove its incorporation upon the trial.</p> <p>The provisions of the Railroad Law, requiring a railroad corporation, before instituting any proceeding for the condemnation of real property, to make a map and profile of the route adopted by it in any county, are satisfied by .a map and profile showing where the road crosses the defendants’ lands, and what it proposes to take, and having a center line and side lines, showing the exact width of the tract proposed to be taken and the exact location thereof with reference to several buildings upon the property of the defendants and the public highway, and from which, by reference to the profile and the stations marked thereon corresponding with the stations upon the map, the defendants could learn the height and grade of the road and the depth of the cuts across their property; and the statute does not require that the map and profile shall he on the same sheet of paper.</p> <p>Under the present statute, a railroad company is not required to wait before instituting proceedings for the condemnation of real property in any county until the final determination of all applications that may be made for a change of route in said county; but such proceeding may be instituted after the expiration of fifteen days from the service by it of the notice required by section 6 of the Bailroad Law.</p> <p>Where it appears that the plaintiff offered the defendants for lands sought to be taken, consisting of about six acres out of a farm of about 300 acres, $4,000, but the defendants rejected the offer and demanded $25,000; and, where it appears that thereafter, and after the plaintiff had made a slight change in its route for the purpose of excluding a spring from which water was carried to defendant’s house, the plaintiff made a second offer of $5,000, and the defendants rejected the latter offer and made a counter-offer of $15,000, which the plaintiff rejected, it sufficiently appears that the plaintiff has been unable to agree with the owner.</p> <p>The provision of section 7 of the Railroad Law, that waters commonly used for domestic, agricultural or manufacturing purposes shall not be taken by condemnation to such an extent as to injuriously interfere with such use in the future, applies only to a case where the railroad company seeks to take waters for its use and not where lands for its right of way only are sought to be acquired.</p>

<p>Issues of law upon demurrer to second cause of action alleged in the complaint.</p>

<p>Demurrer to the third and fourth causes of action contained in the complaint.</p>

<p>Action upon a benefit certificate of life insurance.</p>

Oh or about the 22d day of August, 1906, the defendant presented to the Board of Railroad Commissioners of the State of New York its petition alleging that it was a domestic street surface railroad corporation, organized for the purpose of building and operating a street surface railroad from the city of Rochester, N. Y., to the city of Elmira, N. Y, and prayed for the issuance of a certificate of public convenience and necessity, pursuant to section 59 of the Railroad Law…

Action for injunction to restrain the operation of defendants’ elevated railway in the street opposite plaintiff’s premises, and for damages.

<p>Easements — Nature and creation — Creation by prescription: Length of user —Effect of infancy' of owner of the fee; Creation as against tenants in common; Nature of user.</p> <p>The use of a single track structure with a “ spur ” track and the operation of trains thereon does not constitute a use which for the purposes of prescription the user of the present two track structure, first operated May 1, 1880, can include.</p> <p>Where, in an action commenced June 22, 1900, to restrain the operation of an elevated railroad opposite plaintiff’s premises, it appears that one of plaintiff’s predecessors in title was at the time of defendants’ entry upon the premises, May 1, 1880, under age and did not attain majority until the 20th of November following, it will be held that defendants had acquired her rights in the easements by prescription.</p> <p>The fact that in 1894 a third track upon which trains were run was constructed upon the original structure in no way affected defendants’ prescriptive right tp the use of two tracks; but, the third track having been originally built without lawful authority, plaintiff was entitled to damages proved to have resulted from the operation of trains upon that part of the structure, though as to the balance of the structure his claim was barred.</p>

<p>Landlord and tenant — Rights, duties and liabilities in regard to premises — Injuries from dangerous or defective condition — Actions for injuries from negligence — Pleading.</p> <p>Buildings — In general — Liability of owner of tenement or apartment houses.</p> <p>In the absence of an allegation that an apartment in an apartment or tenement house is within the landlord’s control, his failure to repair the ceiling of said apartment gives no right of action for personal injuries to the occupant caused by the falling of a portion of the ceiling due to a breach of the landlord’s covenant to repair.</p> <p>Under the provisions of the Tenement House Act (L. 1901, chap. 334) the landlord is only required- to see that the-ceilings are kept in a clean and sanitary condition.</p> <p>The mere description of the apartment in the complaint as “ an apartment or tenement house” is insufficient to disclose the application of the Tenement House Act to the particular property.</p>

<p>Libel and slander — Words exposing to contempt, etc.— Charging incontinence or unchastity.</p> <p>An article in defendant’s newspaper which, after referring to the arrest of plaintiff’s husband on the charge of kidnapping, states that “At one time he brought suit against his wife’s attorney for alienating her affections and * * * brought a divorce suit which has not been decided,” conveys to the average reader the impression that .plaintiff had been sued for divorce on the ground of adultery and is libelous per se.</p>

<p>Limitation of actions — Revival of obligation — Part payment — Intention to acknowledge; Persons who make payments.</p> <p>A payment upon a promissory note barred by the Statute of Limitations must be the deliberate, voluntary act of the debtor or his agent evidencing an intention on his part to acknowledge the. existence of the debt.</p> <p>" Where a promissory note authorized the payee, a bank, to sell the collateral and apply the net proceeds on the note, and the cashier of the bank sells the collateral, the credit by him of the proceeds indorsed upon the note, of which transaction the maker was notified and to which he made no objection, constituted a payment by the cashier as agent of the maker sufficient to bar the Statute of Limitations as a defense to an action on the note.</p>

Motion by .the defendant for an order to compel the plaintiff to pay certain sums for counsel fees and for expenses incurred by the defendant in defending the action to annul a marriage.

<p>Foreclosure of mortgages on land — Foreclosure by action and sale — Right to foreclose — Default in payment of taxes.</p> <p>A mortgagor’s covenant that, in default of- his payment of taxes and upon payment thereof by the mortgagee, the whole sum secured shall, if the mortgagee so elects, become due and payable is enforceable0 the same as a like covenant for interest.</p> <p>Where, in such case, the mortgaged premises being located in the city of New York, the taxes, which under section 914 of the city charter became due and payable the first Monday in October, were paid by the mortgagee the next day and the mortgagee brought an action nine days later to foreclose the mortgage, a subsequent tender by the mortgagor of the amount of the' taxes, interest thereon and costs of the. action is insufficient, the mortgagee in liis complaint having elected to consider the whole debt due.</p>

<p>Mortgages — Construction and effect — Covenant to pay—When payable.</p> <p>Accord and satisfaction — What constitutes in general — Payment of part of amount due.</p> <p>Where a mortgage was given to secure the payment of $93,000 on June 27, 1907, a clause in both the bond and mortgage, providing that the obligor shall pay $7,000 on account of the principal on the 27th day of June in each and every year until the principal shall be fully paid, the first payment to be made June 27, 1905, and, in the event of any installment remaining due and unpaid for thirty days, the whole debt should become due at the option of the mortgagees, does not extend the time of the payment of the principal.</p> <p>Where the mortgagor, in June, 1907, when the balance due on the mortgage was $78,000, mailed a check for $7,000 to the mortgagees “ being instalment of principal under terms of said mortgage due June 27, 1907 ” and the mortgagees, in a letter dated July 1, 1907, acknowledging the receipt of said check, state “ which amount we will apply to the payment in full of said balance of mortgage * * * As the mortgage is past due we must insist upon its payment in full,33, the retention of the check did not constitute an accord and satisfaction and the mortgagees had the right to credit the amount as a payment on account-of .principal.</p>

<p>Mortgages — Payment, release or satisfaction of mortgage — ¡Right to require surrender, cancellation or satisfaction of mortgage.</p> <p>Where a mortgagor, upon payment of the mortgage, presents a drawn satisfaction piece, the mortgagee, upon tender to him of twenty-five cents, the fee allowed by law for taking his acknowledgment, is legally bound to sign and acknowledge the satisfaction piece on request and deliver up the bond and mortgage.</p> <p>The mortgagee, after payment of the mortgage debt, has no right to refuse to deliver a bond and mortgage unless the mortgagor pays him $2.50 for preparing and executing his own satisfaction piece.</p>

<p>Highways: Alteration and extension — Proceedings to alter and validity of alteration — Tinder charter of Ossining: Change of grade — Power to change grade — What changes may be effected.</p> <p>Abutting owners — Eights and liabilities in general — Eights and obligations with regard to obstruction of street.</p> <p>Where the trastees of the village of Ossining, in a proceeding for the altering, widening and changing of alignment of a .portion of the Secor road in said village and the highway at the intersection of said road with Main street, failed to serve the notice required by the village charter upon the owners of the land, all of whom were of full age and had resided on the premises for many years, the proceeding is void, as the charter provision in respect to notice must be strictly construed.</p> <p>In such a case, the village trustees were bound to exercise due diligence in ascertaining who were the owners of the premises to be affected by i¿he proceeding, to the end that no person should be injured or dep'ived of Ms property without notice; and a mere examination o' the assessment roll was insufficient.</p> <p>A change of plan for the street improvement as originally proposed should be made at a public hearing before the board oi village trustees after proper notice to property owners who should be given an opportunity to be heard.</p> <p>A meeting of the road committee of the board of trustees of the village and the engineer in charge of the work and their joint action regarding an amendment of the improvement as originally proposed, though ratified by the board of trustees, was illegal and gave the board of trustees no right to proceed with the improvement in accordance with the amended plan.</p> <p>Charter provisions authorizing a village to grade its streets must be reasonably construed and do not authorize the village to withdraw any part of the highway from public use or to close the highway by the erection of a wall therein without ordinance or resolution</p> <p>Adjoini ig owners of the highway, whose title presumptively extends to the center thereof subject to the easements of the public to the right of way, have a right to all ordinary remedies for the freehold; and the unauthorized erection of a rvall in front of their premises on the sidewalk and street by the board of trustees of the village constitutes a nuisance.</p>

<p>Joinder of causes of action — What causes of action may be joined — Inconsistent causes of action.»</p> <p>Two causes of action to be inconsistent with each other must be intrinsically and inherently discrepant, inharmonious and logically incompatible with and contradictory to each other.</p> <p>In an action for personal injuries, two distinct and separate causes of action, united in the complaint, each complete and perfect in itself, one at common law alleging' defendant’s negligence and plaintiff’s freedom from contributory negligence and the other, under an act of Congress relating to liabilities of common carriers engaged in commerce between the States, alleging that plaintiff’s injuries were received by reason of the negligence of defendant and containing no allegation of plaintiff’s freedom from contributory negligence, both causes of action arising out of the, same occurrence and involving the same parties, are not inconsistent with each other within the meaning of section 484 of the Code of Civil Procedure.</p>

<p>Action in replevin.</p>

<p>Life estates — Termination of life estate and its effect — Changing to estate in fee when coupled with power of disposition.</p> <p>A deed of personal property to a trustee to collect the income and apply the same to the use of the grantor during his life and at his death to divide into four equal parts and to continue to hold such parts in trust, one part for each of the grantor’s four children, during their respective lives, and to receive the income of each portion and apply the same to the use of such children during each of their natural lives and providing that, upon the death of each of such children who might survive the grantor, the principal of his or her share should be transferred and set over to such person or persons as such child might appoint by his or her last will and testament and in default of such appointment to the legal representatives of such child, vests the title to the property thereby assigned in the trustee; and the provisions of section 129 to 132 of the Deal Property Law, which provide for changing an estate for life or years, coupled with an absolute power of disposition, into a fee, which provisions are applicable to personal property as well as to real property, have no application to the beneficial interests of the surviving children of the grantor under the trust deed.</p>

<p>Vendor and purchaser — Performance of the contract — Time for performance.</p> <p>Specific performance — Performance by complainant — Time for performance.</p> <p>Where, at the time fixed for closing the title by a contract for the sale of real estate, the parties met, and, the vendor not having removed certain alleged defects in the title which were not of a substantial character, an adjournment to a later date was agreed upon, and the vendor stated that, upon the day to which the closing was adjourned, the title must be closed, time was thereby made of the essence of the contract; and, where the vendee failed to close the transaction on the day to which, the adjournment was had, he could not thereafter, and after the vendor had sold to other parties, maintain an action for the specific performance of the contract.</p>

<p>Action by the vendor for the specific performance of a contract for the sale of real property.</p>

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

<p>Vendor and purchaser—Title and incumbrances — Title by adverse possession; Easements; Mortgage.</p> <p>Adverse possession — Subjects of adverse possession — Private way.</p> <p>Executors and administrators — Administrative authority and management of estate — Management and disposition of estate — Of realty, etc.— Purposes of sale.</p> <p>It is not a valid objection by a vendee to the title of real property tendered to him under a contract of sale that a right of way was reserved in deeds more than fifty years ago, where it appears that it fell into total disuse more than twenty-five years ago and for over twenty-one years the property has been held by the vendor intact, fenced in, and by open, hostile possession against which no claim or right of any character has ever been asserted.</p> <p>Nor is the existence of an undischarged mortgage a valid, objection, where it appears that the mortgage was given upon a previous sale to secure the entire purchase price except a small sum paid in cash, and that the -gxeeutors of the purchaser after his death, under a power of sale contained in his will, in good faith conveyed back to the mortgagee, who still held the mortgage, the premises covered thereby, in satisfaction of the liability of the mortgagor for the payment of the mortgage debt.</p> <p>The exercise by the executors of the power of sale under such circumstances, where the testator’s estate did not amount to enough to pay his debts, the mortgagee threatened to foreclose and a judgment of deficiency was possible, was a valid exercise of the power and justified by the exigency of the situation.</p>

Action to enforce vendee’s lien for moneys paid upon a contract for the sale of defendants’ real estate, and for expenses incurred in searching title.

<p>Wills — Interpretation and construction — Terms defining quantum or duration of estates or interests — Rules and implications — Subsequent clauses reducing fee.</p> <p>Where a testator in his will declared his wife to be the sole heir of all his property and that she was to have free disposal of the same, a subsequent provision that she should " only be held to leave the same to the children of our marriage when the time comes ” will not he construed as impairing the previous absolute gift.</p>

This action is brought to obtain a judicial construction of certain provisions of the will of James W. Marshall, deceased. The will bears date April 4, 1903, and the decedent died February 8, lOGA The will has been duly admitted to probate by a decree of the Surrogate’s Court of Madison county. At the date of the will and at the date of the decedent’s death, he had three children, the defendants Melva M. Crounse, Frederick W. Marshall and Charles B. Marshall.

<p>Appeal by an Indian from a conviction for intoxication in a public place.</p>

<p>Landlord and tenant: Leases and agreements in general — Construction and operation — Express covenants — To furnish with water: Termination of relation — Breach of covenant or condition — By landlord.</p> <p>Where a room in a business block is rented to a physician and the landlord covenants that it should be furnished with beat and water supply, a faucet in a hallway upon the same floor, but some distance away from the office, does not satisfy the covenant; and, where the tenant has no right to make repairs and therefore cannot recoup the cost of furnishing the water upon the rent, upon the failure of the landlord to perform such covenant the tenant has the right to terminate the contract.</p>

<p>Criminal Procedure — Proceedings on review — Eight of review and procedure — Proceedings to obtain review — Appeal, how and when taken.</p> <p>Upon an appeal to.the Court of General Sessions from the conviction before a city magistrate within the county of New York of a husband for the non-support of his wife, the defendant must give a written undertaking, as prescribed in section 689 of the Greater New York charter, and the appeal must be taken within sixty days after the committal of the defendant, as provided in section 751 of the Code of Criminal Procedure, and in default thereof the court is precluded from hearing the appeal and the appeal will be dismissed.</p>

<p>Motiobts to quash, dismiss and set aside indictments.</p>

Peoceedings by certiorari to review the actions of the boards of assessors of the towns of Minden and Canajoharie, Montgomery county, N. Y., respectively, and to have items of assessment on the assessment rolls of said towns made against the relator for real estate in addition to -the franchise assessment stricken from said rolls.

<p>Condemnation proceedings. ' The opinion states the case.</p>

Motion by Edward Harding, the assignee of the firm of Mills Brothers & Company, insolvent stock brokers, for directions as to the disposition of certain securities now in his possession.

<p>Intoxicating liquors — Revocation or forfeiture of license — Power to revoke license — When it may he exercised.</p> <p>Proceedings for the cancellation of a liquor tax certificate may be instituted within thirty days after the holder has delivered it to the State commissioner of excise for the purpose of surrendering it pursuant to subdivision 1 of section 25 of the Liquor Tax Law.</p>

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

<p>Officers — Eligibility, qualification, accession and tenure: Accession, appointment, etc.— Member of appointing board; Term of office, vacancies and holding over — Existence of vacancy — For failure to qualify must be judicially declared.</p> <p>Where a valid appointment to the office of highway commissioner can only be made by the concurrence of four members of the. town board, four members of such board cannot appoint one of their own number to that office.</p> <p>Under a provision of law that the omission of a person elected to office to file an official bond, within the time required by law shall be deemed a refusal to serve and the office may be filled as in case of vacancy, the mere failure to file the bond does not of itself create a vacancy but such vacancy must be declared by judicial action; and, where the person elected tenders the required bond before any such adjudication, his title to the office is good and the proper officers will be required by mandamus to approve and file the bond.</p>

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

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

<p>Application to vacate a warrant of attachment!</p>

<p>Application by the depositors of a bank to discharge a receiver and turn over its property to the association.</p>

<p>Place of trial — Change of place of trial — Convenience of witnesses — Rule in ninth judicial district.</p> <p>Where, upon a motion to change the place of trial for the convenience of witnesses, the opposing affidavits show not only that the plaintiff is an old resident of the county where the venue was laid hut that four out of seven of his intended witnesses reside in said county, one in Westchester county, one in Orange county and only one in New York county where the cause of action arose, the motion will be denied in accordance with the settled practice in the ninth judicial district.</p> <p>Brady v. Hogan, 117 App. Div. 898, distinguished.</p>

<p>Discovery and inspection — Examination of party before trial — Right to remedy — Privileged matter.</p> <p>Where a plaintiff, upon an affidavit that his cleric had stolen from him certain money and securities and had delivered the same to defendant who had received the property in bad faith and converted it to his own use, obtains an order requiring defendant to be examined as to the transaction for the purpose of enabling the plaintiff to frame his complaint in an action for conversion, such an order will bg vacated, upon the ground that the examination would be compelling the defendant to connect himself with the crime of criminally receiving stolen property, it not appearing that he was expected to testify to any fact except such as would be privileged.</p>

<p>Discovery and inspection — Inspection of books, papers and premises — Eight to remedy — When allowed in general — What may be inspected.</p> <p>Where, after the purchase for a large sum of a picture represented by defendant to be the work of a celebrated artist, plaintiff discovers that the picture is only a copy of the original, and worthless and returns it to the defendant, a motion, made by plaintiff in an action to recover as damages the purchase price, for an order for the inspection of the picture, which is neither “ a book, document or other paper ” within the meaning of section 803 of the Code of Civil Procedure, will” he denied for want of power, with leave .to renew upon aflidavits showing that the picture bears the purported signature of the alleged artist and that plaintiff expects to prove that said signature is spurious.</p>

<p>Discovery and inspection — Inspection of hooks, papers and premises — Right to remedy — When allowed in general — What may he inspected.</p> <p>Upon renewal of the motion made in the previoué case, held, that though the picture bore the purported signature of the artist it could not be regarded as a “ document or other paper ” within the meaning of section 803 of the Code of Civil Procedure; and a motion for its inspection must be denied for w^nt of power.</p>

<p>•Taxpayer's action. The opinion states the case.</p>

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

<p>Motion to amend verdict by adding interest upon plain-stiff’s claim. '</p>

<p>Verdict and findings — Verdict and special findings by jury — Construction of verdict.</p> <p>Where, upon the trial of an action, no notice of the matter of interest on the plaintiff’s claim was taken by the court or counsel until after the verdict of the jury was rendered and the jury was discharged, and the verdict found was for the plaintiff in the -full amount of his claim, such verdict cannot be fairly construed as including interest; and the court cannot, upon a motion made at a Special Term subsequent to the term at which the cause was tried to correct the clerk’s entry of the verdict, make an order including interest upon the plaintiff’s claim in such verdict.</p>

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

Demurrer to plaintiffs’ complaint upon the ground that it fails to state facts sufficient to constitute a cause of action.

Action for conspiracy to deprive plaintiff, a stockholder in the defendant company, from participation in the profits, with a prayer for equitable relief. ' The opinion states the case.

<p>.Motion by plaintiff for judgment for absolute divorce on report of referee. The opinion states the case.</p>

<p>Sales — Remedies of purchaser — Actions for breach of contract — Defenses.</p> <p>Former adjudication — What matters are concluded — Matters necessarily involved — Performance of contract.</p> <p>In an action for an alleged breach of a contract by which defendant agreed to sell and deliver to plaintiff a quantity of crushed stone to be used in road making, in which plaintiff seeks to recover as damages the alleged cost of recrushing the stone to make it conform to the terms of the contract, a former judgment and recovery by defendant herein as plaintiff against the plaintiff herein, in an action to recover the purchase price of the same stone, is a bar to the present action, as the former judgment necessarily determined that the defendant herein performed the contract by a delivery of stone -in conformity with its terms and that the purchase price remained due.</p>

<p>Fraternal and mutual benefit associations — Forfeiture, suspension or resignation: Suspension or expulsion of member — Grounds in general; Necessity of notice — Waiver: Reinstatement after forfeiture — Proceedings to compel reinstatement — Action, when maintainable — necessity for exhausting remedies within association.</p> <p>Where the constitution of a fraternal and mutual benefit association provided, in relation to the expulsion of its members, that, uhere charges were presented against a member and the investigating committee appointed to consider the same found any evidence against the accused, he should be furnished with a copy of the charges, and charges were preferred against a member, and the member appeared and made his defense to the charges upon the merits, without making any objection to the failure to properly serve him with a copy of the charges, he waived such objection; and it is not available to him in a subsequent action brought by him for his reinstatement as a member of the association.</p> <p>Where the charge was preferred against a member of a fraternal and mutual benefit association that he had offered his advice and service to the officials of a railroad in a plan relating to the operation of the road which was objectionable to the association, and no evidence was produced to show that he volunteered any advice or service to railroad officials, although it appears that he obeyed the orders issued by the railroad company to carry out the plan in question and expressed the opinion that the company had the right, under their contract with the members of the association, to adopt it, the charge has not been established; and a resolution for the expulsion of' the member. is invalid, and he is entitled to judgment reinstating him as a member of the association.</p> <p>It is a general rule that a member of a fraternal and mutual benefit association is bound in the first instance to exhaust his remedies by appeal to the highest constituted authorities within the association before he becomes entitled to maintain an action for the vindication of his rights. This rule, however, is subject to exceptions; and, where the next appeal cannot be beard until nearly two years after a member’s expulsion, during which period the insurance to which he is entitled under the regulations of the association and for which, during a period of twenty years, he has been paying charges aggregating a large sum and which is intended for the support of his wife after his death, and for his own aid in case of injury or sickness, would be lost to him, a case is presented which should be excepted from the general rule.</p>

<p>Demurrer to complaint.</p>

Action in equity by the assignees of the heirs and next of kin of a deceased person to recover a share in his estate alleged to have been received by. his administrator, since deceased, and to have come into the possession of the latter’s personal representatives, heirs and next of kin.

<p>Landlord and tenant — Rent and advances — Rights and liabilities — Eviction.</p> <p>Where premises have been occupied by a tenant for a saloon and are afterward closed up and left unoccupied, though the tenant leaves his property and fixtures therein, and, being unoccupied, many windows are broken out and the landlord, to protect the property, nails boards over the windows and openings caused by the glass being broken; and where the lease contained a covenant on the part of the tenant to use all reasonable precautions to prevent waste and to leave the premises in as good condition as reasonable use would permit and authorized the landlord to examine and repair the premises, the act of the landlord does not constitute a constructive eviction, although the tenant tendered him the keys of the premises which he refused to accept.</p>

Action for the specific performance of a contract for the lease of lands of the city of New York made by the commissioners of the sinking fund on behalf of the city.

Action for specific performance of an agreement to give a five years’ lease of certain premises. The opinion, states the case. •

<p>Demurrer to complaint for insufficiency of substance. The opinion states the case.</p>

<p>Demurrer to complaint in an action for libel. The opinion states the case.</p>

<p>Limitation of actions — Period of limitation — Suits in equity — Determination of a claim to real property.</p> <p>Where, about five years after the youngest of three infant grantors of real property became of age, in 1901, they each bring an equitable action to have a deed which was given in 1895 set aside and adjudged void, the eases fall within the ten years’ limitation provided by section 388 of the Code of Civil Procedure.</p> <p>Section 1638 of the Code of Civil Procedure, which refers to actions to compel the determination of a claim to real property, governs in such cases; and the failure of the complaints to allege that plaintiffs have been for one year in possession of the real property in question renders them defective.</p>

Action for malicious prosecution. At the close of the case the defendant moved to dismiss the complaint, First. Because the plaintiff had failed to prove any • cause of action against the defendant. Second. Because the plaintiff had failed to prove that the prosecution was instituted by the defendant. Third. That the plaintiff had failed to prove a want of probable cause. Fourth.

<p>Mortgages — Transfer of title of mortgagor — Rights and liabilities under covenant to assume mortgage — In general.</p> <p>Contracts—Interpretation of contracts — Particular agreements — Agreements to assume indebtedness and liabilities of or to third • persons.</p> <p>Subrogation — Payment to protect rights.</p> <p>Where the plaintiff acquired by inheritance a life estate in certain lands, which she had previously owned, from her son, subject to the right of dower of his widow, and the lands were subject to a mortgage held by one J., the payment of part of which the son had assumed by the terms of the deed to him from his mother, and were also subject to another mortgage given by the son to his mother for part of the purchase price of the premises and of k quantity of personal property which she transferred to him at the same time; and where, after the son’s death, the mother purchased his widow’s right of dower and in consideration covenanted to pay the lawful debts her son owed at the time of his decease, and thereafter paid his unsecured debts and made , payments on the mortgage to J. to the whole amount due thereon, whereupon J. gave a formal satisfaction thereof; and where the plaintiff now seeks to foreclose both mortgages, claiming to be equitably subrogated to the rights-of. J. by reason of having paid his mortgage, held:</p> <p>The mortgage to J. was not included in the covenant by plaintiff to pay the lawful debts owing by her son, for the reason that, she not having been personally liable to pay the mortgage when she conveyed the premises to her son, the covenant in the deed on his part to assume and pay it did not create any personal liability upon him nor make it his debt.</p> <p>The payment by plaintiff while life tenant of the principal of the mortgage to J., which she was not legally bound to pay but was compelled to pay for the protection of her estate and that of the remaindermen, entitled her to be subrogated to the rights of J. and to enforce .the mortgage.</p> <p>But, as it appears that the mortgage given by the son was intended not only to cover the small equity in the farm conveyed to him- by his mother, but also to cover the purchase price of a large amount of personal property which she transferred to him at the same time and which his widow after his death retransferred to the plaintiff, it will be held that it was the plaintiff’s intention to relieve her son’s estate from the personal obligation he had given therefor, represented by his mortgage, and that his mortgage came within the terms of the plaintiff’s covenant to pay her son’s lawful debts.</p>

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

. Action to restrain defendants from carrying out an alleged contract for alterations to the school building in district üSTo. 4, Orangetown, Rockland county.

<p>Constitutional Law — Obligation of contracts and vested rights — Corporate charters and franchises — Franchises subject to municipal regulation.</p> <p>The rights of a corporation, organized for the purpose of supplying water to the inhabitants of a municipality under the general laws for that purpose which authorize and empower such corporations to lay their water pipes in streets, avenues and public places, are subject to the exercise of the ordinary police power of the State delegated to the municipality; and a provision in the city charter, subsequently granted by the Legislature, which requires in effect that no pavement or surface of a street shall be disturbed until a permit is first had from a proper officer, is not an invasion of the vested rights of the corporation and such provision is not for that reason unconstitutional.</p>

<p>Action to recover for repairs made to automobile upon employment by chauffeur.</p>

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

<p>Easements — Location, maintenance and extent of right — Extent of right acquired hy grant — Pipes under railroad.</p> <p>Railroads and railroad companies — Interest in lands and right of way — Rights and privileges acquired by company as incident to the grant.</p> <p>Where the owner of lands fronting on the Hudson river for about 2,000 feet, with a grant of outside land under water, transferred to plaintiff’s predecessor, a railroad company, a strip substantially along his water front, 74 feet wide for its proposed right of way, by a deed which purported to convey the fee, with a reservation to the grantor of all rights to the land under water outside of the land conveyed, and also the privilege of having made and constructed at the expense of the grantee two culverts at points designated upon an accompanying map or at such other places as might be convenient to both parties, and, thereafter, the railroad company conveyed back to its grantor by a quitclaim deed a strip on the easterly side of the strip which had been conveyed to it, and the description in a subsequent conveyance in fee of a cross section fifty feet in length out of the parcels retained by the first owner after the conveyance to the railroad company to the defendant includes plaintiff’s right of way strip, and •the grant is subject to the rights of the railroad company, the grantee, a yacht club, as to its parcel of fifty feet, has the right, under the charter of plaintiff’s predecessor, the Hudson River Railroad Company, of crossing the plaintiff’s intervening right of way, including the right to lay and maintain gas and water pipes to connect with the club-house of said grantee located on its westerly parcel.</p> <p>Where the railroad company demanded, as a condition precedent to laying said pipes, that the yacht club execute and deliver to it an agreement which conceded that the yacht club had no right of crossing the railroad’s right of way but, for any such crossing, was dependent solely upon the railroad’s consent, and the yacht club refused to execute such agreement; and, upon the yacht club’s attempting to lay the pipes in question, the railroad company brought an action against it for an injunction; the defendant is entitled to judgment dismissing the complaint, with costs, and for the amount expended by it in laying the pipes which the railroad company removed and enjoining the railroad company from interfering with defendant’s rights.</p>

<p>Tenants in common and joint tenants — Bights and liabilities inter se — Compensation for services; Liability for rent — Payment of taxes.</p> <p>A tenant in common in possession of the premises held in common must pay taxes and ordinary repairs but cannot be charged with rent. .</p> <p>A tenant in common, in the absence of agreement, is not entitled to compensation for collecting rents belonging to himself and his eotenants.</p> <p>Where real property belonging to the heirs at law of Lueina A. Cole is assessed for taxes to “ Cole-Chester Est.” the assessment is absolutely void and the taxes never become a lien on the property; and payment thereof by a tenant in common in possession of the premises cannot be allowed to him on an accounting between him and his cotenants.</p>

<p>Principal and agent — Mutual rights, duties and liabilities — Construction and execution of contract, etc.— Liability of agent for conversion of fund.</p> <p>Where the complaint of a domestic life insurance company, in an action brought under section 549(2) of the Code of Civil Procedure, alleges the making of a contract of employment with defendant as its general agent for the purpose of effecting insurance in three other States and to collect and promptly pay over to plaintiff all premiums, and alleges the renewal and termination of said contract, and also alleges that between the date of the last renewal and the termination of the contract defendant, in the course of liis said employment and in a fiduciary capacity, had and received to plaintiff’s use certain moneys exceeding in the aggregate $5,000 whicli he had collected in premiums of plaintiff’s policy holders and, upon demand, had never paid over or delivered to plaintiff but, in violation of his trust, had/converted to his own use; and where defendant by Ms answer, admitting the making of the agreement, alleges, in substance, that it was so modified and the provisions thereof so waived by plaintiff as to destroy the fiduciary relation contemplated by the agreement and to create the ordinary relation of debtor and creditor; and the testimony shows that, notwithstanding departures from the requirements of the original contract known and acquiesced in hy plaintiff at the time of each renewal of defendant’s agency, all moneys received by him as general agent were deposited in a bank, approved by the. plaintiff, in defendant’s name as general manager,” drafts upon which were made hy checks bearing upon their face the name of the plaintiff and signed by either the defendant as “ general, manager ” or by his brother as “ agency director,” and all drafts were made only for disbursements in connection with plaintiff’s business, the plaintiff is entitled to judgment for the difference between the amount of premiums collected and defendant’s disbursements ratified by plaintiff, together with interest from the date of the ratification of his agency.</p> <p>Although the original contract appointing the defendant the plaintiff’s agent did not show upon its face where it was executed, the presumption, in the absence of evidence to the contrary, was that it was executed by plaintiff within the State of New York.</p> <p>Defendant’s obligation and legal status were fixed by the manner in which he received the money sued for and by the fact that he was obliged to remit when requested; and his refusal to pay over, upon demand, said balance constituted a conversion, whether section 38 of the New York Insurance Law which provides that “ Every person appointed or acting in this state as agent of any insurance corporation, who receives or collects any moneys as such agent, shall be responsible in a trust or fiduciary capacity to sucli corporation therefor,” was applicable or not.</p> <p>Jurisdiction of the person of the defendant having been acquired by personal service within this State, plaintiff was entitled to avail itself of the remedy provided by section 549(2) of the Code of Civil Procedure, whether the conversion occurred in this State or elsewhere.</p> <p>The acceptance of the checks by plaintiff was not a waiver of its right to arrest the defendant, nor did it operate to convert its claim into one of simple debt.</p>

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

Action to compel the performance of the oral promise of defendant to hold the estate of his sister, of which he was the sole devisee and legatee, for the benefit of plaintiff.

<p>Action to recover real property.</p>

<p>Wills — Interpretation and construction: Terms defining quantum or duration of estates or interests — Rules and implications — Life estate with power to use principal: Administration of estate, and execution of powers, etc. — Particular terms of doubtful meaning .— Words of discretion or judgment — As to application of principal.</p> <p>Where a testator gave the residue of his estate to his wife for life, adding, “ it being my intention that she shall have the free and full use of the rents, issues, interests, income and profits so long as she shall live, with the right to use and enjoy the principal or corpus of my estate if she in her discretion should find it desirable or expedient for her comfort or happiness to apply the same to her use, and without question or accountability in the premises, and without giving any security of any kind;” held that the application of the principal to the support of the testator’s wife was not dependent upon the exercise of her personal discretion; and where, after the death of the testator, she became insane, the executors should be instructed to apply such portion of the principal as was necessary and proper for her maintenance.</p>

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

<p>Appeal from judgment of nonsuit rendered by the Municipal Court of the city of Buffalo in an action to recover certain payments alleged to be due under a contract.</p>

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

<p>Justices of the peace — Appeal and error — Review — Questions of fact, etc.— Sufficiency of evidence to support-verdicts and findings. Bailment — Evidence and presumptions — Burden of proof.</p> <p>Where, in an action in Justice’s Court to recover a loan, v the evidence of defendant was, in effect, that plaintiff wished defendant to keep a certain sum of money; that plaintiff handed him the money which he gave to his wife to put away and she put it in a bedtick in her room; that, several days after, she gave the plaintiff a portion of the money and the next day the balance was stolen, together with money of the defendant; and where the evidence of the plaintiff as to what was said and done when he gave the defendant the money, if believed, justified a verdict for the plaintiff upon the theory that the transaction constituted a loan; a verdict in favor of plaintiff, sustainable either upon the theory of a loan or that the transaction constituted a bailment and that the defendant was guilty of negligence and, therefore, liable, should be affirmed.</p> <p>If the transaction constituted a bailment, defendant was a gratuitous bailee and-liable only to the plaintiff in case the loss of the money was because of gross negligence on the part of the defendant; but the burden of showing the circumstances of the loss was upon the defendant and, in the absence of evidence showing the exercise of due care by him, according to the nature of the bailment, he is liable for the breach of his contract to return the'money; and evidence that a boarder in his house disappeared •about the same time as the money in question is insufficient to sustain the burden of proof.</p>

<p>Application to discontinue a portion of a highway in the town of Woodbury, Orange county, and the assessment of damages therefor.</p>

<p>Motion By defendant for a new trial on the minutes in an action for unlawful discharge of plaintiff from service.</p>

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

<p>Criminal Law — Elements of crime — Intent.</p> <p>Criminal Procedure — Evidence — Quantity required and probative effect — Facts sufficient to raise inferences — To infer intent.</p> <p>In section 639 of the Penal Code, making it a crime to willfully or maliciously destroy a public highway, the word “ willfully ” includes the idea of an act intentionally done with a wrongful purpose, or with a design to injure another, or from mere wantonness or maliciousness.</p> <p>Where a portion of a public highway was destroyed by sliding easterly into excavations which had been made upon a certain brickyard property and defendant was indicted under section 639 for the crime of willfully and maliciously destroying said highway, naming it, by means of said slide and the excavations causing the same, and the evidence before the grand jury, though meager, warrants the 'conclusion that such excavations were one of the proximate causes of the slide and that defendant, acting individually and as executor and trustee, gave a three years’ lease of the brickyard property with knowledge that there were cracks in the street indicating the sinking, and the lease provided that the right to excavate must be exercised by the tenants in such a way as not to disturb or endanger the highway adjoining the premises and that they should dig down, obtain and use the said clay and materials in the banks on said premises in like manner as theretofore the tenant of said premises had operated the said hanks, a motion to dismiss the indictment upon the ground that the evidence before the grand jury was insufficient will be denied.</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>Attorney and client —The relation with the client — Compensation — Contracts for compensation — Interpretation — Disbursements.</p> <p>A contract to pay a certain sum to an attorney as compensa? tion for his services does not, in the absence of any agreement to the contrary, impose upon him the burden of assuming the disbursements necessarily made in -his client’s behalf, and the attorney may by suit recover the amount of his disbursements after the agreed compensation for his services has been paid.</p>

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.

<p>Chattel mortgages — Foreclosure — Methods of foreclosing — Action in Equity — Parties — Effect of nonjoinder.</p> <p>Parties — Objections and waiver thereof — Waiver of objections — Nonjoinder of parties.</p> <p>A chattel mortgagor who after default removes the property to a storage company without the consent of- the mortgagee should be made a party defendant in an action to foreclose -the mortgage.</p> <p>Where the objection of nonjoinder of the mortgagor as a necessary party defendant is not raised either by demurrer or answer nor in -any way presented at the trial it will be deemed to have been waived; it cannot be urged for the first time on appeal from the judgment.</p> <p>Where the only effect of the nonjoinder of one as a party defendant is that the judgment will not be binding upon him, the'court is not ousted of jurisdiction as to those made parties to the action.</p> <p>A mortgagee, upon default in the payment of the mortgage, becomes the absolute owner of the chattels and entitled to the immediate possession thereof as against warehousemen with whom the chattels were stored by the mortgagor after his default.</p>

Appeal by the plaintiff from a judgment of the City Court of the city of New York, dismissing the complaint and also from an order denying plaintiff’s motion for a new trial.

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

<p>New trial — Proceedings to procure new trial — Time for application — Effect of delay or laches.</p> <p>Where, at the time of the granting of a final order in summary proceedings in favor of the landlord, he was seventy-seven years old and in good health and clear mind, an order vacating said final order of removal, made six years after, when the physical and mental powers of the landlord have become so impaired that he is unable to testify, will be reversed as an improper exercise of discretion.</p>

<p>Landlord and tenant: Leases and agreements in general — Construction and operation — Express covenants in general: Rent and advances — Rights and liabilities — Eviction. ,</p> <p>A clause in a written lease of an apartment house, permitting the landlord, three months before the expiration of the term, to show the tenant’s apartment to persons who might become tenants, is not to be eonstruéd to mean that when the tenant is absent the landlord may write him a letter asking for an amicable arrangement for showing the apartment and, if he does not receive a response within two days, break into the apartment at his pleasure.</p> <p>Such a breaking in, however, would constitute only a trespass for which the landlord might be liable in damages; but where, in ■addition, he changed the lock and retained the key, the tenant, who removed forthwith, is not liable for rent not yet due, though he made no demand for possession.</p>

<p>Master and servant — Master’s liability for injuries to servant — Actions— Weight and sufficiency in general — Negligence on part of master.</p> <p>Plaintiff while in defendant’s employ was injured by a falling chain, a part of an elevator which was part of the place, machinery and tools used by defendant in his business. Why the chain fell from its fastening was not shown, but it did appear that it had broken about four months before the accident to plaintiff and had been mended. No one used the elevator or had anything to do with keeping it in repair except defendant, and it was conceded that plaintiff was free from contributory negligence. Held, that plaintiff had established a prima facie case which defendant was called upon to explain and that the relation of master and servant did not relieve defendant from liability.</p>

<p>Motion for a reargument or for leave to appeal.</p>

Appeal by the plaintiff from a judgment dismissing the complaint, rendered in the Municipal Court of the city of New York, seventh 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 Few York, ninth district, borough of Manhattan.

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 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 plaintiff from a judgment dismissing the complaint, rendered in the Municipal Court of the city of ¡New York, tenth district, borough of Manhattan.

<p>Appeal by the defendant from three judgments of the Hunicipal Court of the city of New York, first district, borough of Hanhattan, rendered" in favor of the plaintiff.</p>

<p>Street railways — Operation — Actions: Sufficiency of evidence — Collision with vehicle; Contributory negligence: Questions for jury.</p> <p>In an action against a street railway company to recover damages for personal injuries sustained by a collision between the wagon in which plaintiff was being driven and defendant’s ear, where-it appears by the testimony of the driver of the wagon that he saw a car standing at the street corner and that, as he started to cross the track, the car started up and came on with great force and speed and struck his wagon, and that, although plaintiff was riding in his wagon, he was not employed by her but was taking her to market to buy goods which he expected to deliver for her, and it does not appear that plaintiff had any control over" the driver, the case should have been submitted to the jury and it was error to dismiss the complaint.</p>

<p>Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of blew York, second district, borough of the Bronx, after a trial before the court and a jury.</p>

Appeal by the plaintiff from a judgment of the City Court of the city of blew York, entered upon the verdict of a jury in favor of the defendant, rendered by direction of the court.

<p>Criminal procedure — Record or minutes and commitment — Commitment or certificate of conviction — Specifying definite period when indeterminate sentence required.</p> <p>Criminal law — Jurisdiction — Particular courts — City magistrates of New York.</p> <p>Where the city magistrate’s court of the city of New York committed a male prisoner between the ages of sixteen and thirty years, convicted of disorderly conduct, to the New York city reformatory," held that the commitment was authorized by the provisions of chapter 305 of the Laws of 1905, constituting section 698 of the Greater New York charter.</p> <p>Although the provisions of chapter 305 of the Laws of 1905 provide that a magistrate making a commitment shall not fix the limit of the period of imprisonment, a commitment specifying the term of imprisonment “ as of three years -unless sooner discharged or paroled”, is not for that reason invalid, since the act also provides that a sentence shall not be void because for a definite period of time, but that the person sentenced shall be entitled to the benefits of the act as if such sentence had been made for an indefinite period.</p> <p>A city magistrate of the city of New York has jurisdiction of a charge of disorderly conduct within the city, although the acts which .constitute the offense charged might alsp constitute a misdemeanor under the Penal Code.</p>

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

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

<p>Habeas coepus proceedings. The opinion states the case.</p>

<p>Motion to confirm report of commissioners.</p>

<p>Insane persons — Inquisition — Concurrence of commissioners; Setting aside inquisition — Grounds — Findings contrary to evidence; Undue pressure to secure agreement of jury.</p> <p>In a proceeding for the appointment of a committee of the person and estate of a lunatic, it is no part of the duty of the commissioners appointed by the court to determine the question of her lunacy; and, where the jurors concur in finding the fact of sanity and the inquisition is signed by the commissioners, its validity is not impaired by a statement, attached to the inquisition by the commissioners, which recites that two of them do not concur with the finding of the jury.</p> <p>The inquisition of a jury in a lunacy proceeding is not conclusive; but the question of confirmation is one which rests entirely in the discretion and conscience of the court.</p> <p>Where, upon a review of the evidence,-it tends, in the judgment-of the court, overwhelmingly to establish the insanity of the alleged incompetent person, and it appears that the jury retired at 11:50 o’clock on Saturday morning and that they were kept together without agreement until 12 o’clock at midday on Sunday, frequent inquiries being made of them in the meantime to ascertain if they had agreed, the motion to confirm the inquisition will be denied.</p>

<p>Application for a resubmission of local option questions under the Liquor Tax Law.</p>

<p>Municipal corporations — Police department — Compensation — Suspension without pay.</p> <p>Greater New York Charter, § 292.</p> <p>The police commissioner of the city of New York has authority to suspend a member of the police force without pay, under section 292 of the Greater New York charter, only where written charges have been preferred and are pending.</p>