Volume 58 — New York Miscellaneous Reports

<p>Election of officers — Nominations and preparation of official ballot — Primary — Persons entitled to vote — Enrollment.</p> <p>The provisions of the Primary Election Law (L. 1898, eh. 179) and its amendments contemplate that an enrollment of electors shall go into effect on the first day of January following the days of registration and remain in force for a year thereafter. It is not, therefore, a valid objection to the enrollment of an elector that he enrolled with, or participated in a primary election or convention of, some other party during the calendar year previous to the enrollment then in progress; and the requirement of the statute that the elector shall declare he has not so enrolled or participated in a primary election or convention since the first day of last year should be construed to relate to the current political year and not to the preceding calendar year.</p>

<p>Naturalization — Jurisdiction — When and how acquired.</p> <p>In a proceeding for the admission of a person to citizenship, the court acquires jurisdiction of the petitioner by the filing of the petition and the giving of notice of the final hearing by the clerk; and the petitioner’s removal of his residence to another judicial district does not deprive the Supreme Court, in the judicial district-where he resided at the time of filing the petition and giving notice, of jurisdiction to make the final order in the proceeding admitting him to citizenship.</p>

<p>Statutes: Special, local or private statutes — Subject and titles — Acts relating to municipalities: Interpretation — General rules — Erroneous reference to legal proceedings.</p> <p>Constitutional Law: Deprivation of life, liberty or property without due process of law—Application of prohibition to municipalities: Obligation of contracts and vested rights — Judgments — Where court is merely legislative agent for exercise of taxing power.</p> <p>Where, after the entry of a final order by which the various steps, including the fixing of a district of assessment and the apportionment of the assessments against each parcel to be benefited, were taken in a proceeding under the charter of the city of New York to widen Livingston street in the borough of Brooklyn, a statute (L. 1907, eh. 91) is passed, entitled “An act to provide for the expense of widening Livingston street in the borough of Brooklyn, city of New York” providing that the total expense of the improvement “ shall be borne exclusively by the city of New York, notwithstanding any assessment heretofore levied on the property benefited by such improvement ” and directing the cancellation of all such assessments remaining unpaid and the refunding of any such assessments as had been paid, the statute is not unconstitutional, either under the State or Federal Constitution.</p> <p>The legislative intent is amply clear and its purpose cannot fail of execution simply because of its erroneous statement of the date of the resolution of the board of estimate by which the improvement was authorized.</p> <p>The subject of the act is expressed in its title with commendable clearness and comprehension and does not offend the constitutional provision (State Const, art. 3, § 16) that no private or local bill passed by the Legislature shall embrace more than one subject and that shall be expressed in the title.</p> <p>Under the uniform rulings of the Supreme Court of the United States the imposition of new burdens upon a municipal corporation, or the taking from it of a former right or property, by the legislative action of the State, raises no question under the Constitution of the United States; and no Federal question is involved in the construction of said act of 1907 or in proceedings taken thereunder.</p> <p>The whole power of taxation within defined limits is with the Legislature; and, while the final order in the proceedings taken under the charter, so far as it divested title to real estate by virtue of the right of eminent domain and fixed the compensation of the owner, had all the force and effect of a judgment which the Legislature could not undo, so far as said order apportioned and imposed an assessment it acted as but a legislative agency in the exercise of taxing power.</p>

<p>Supplementary proceedings — Disobedience to order or subpoena as contempt— Failure or refusal to appear or answer: Excuses — Irregular affidavit; Previous order: Punishment.</p> <p>Upon' a motion to punish a judgment debtor for contempt for disobedience of an order requiring him to appear in proceedings supplementary to execution, he may not urge in defense that the affidavit of one of the attorneys for the judgment creditors, upon which the order for the examination was granted, was sworn to before the attorney’s law partner and was irregular.</p> <p>Where a judgment debtor does not appear and submit to an examination in proceedings supplementary to execution and all parties interested treat the proceeding under the order, which was not served in time, as abandoned, the judgment debtor’s disobedience of a second order for his examination based upon an affidavit of one of the attorneys for the judgment creditors and sworn to before the attorney’s law partner, to which he made no objection by any affirmaéive act, constitutes a contempt.</p> <p>And .where, upon the return day of an order to show cause why he should not be punished for the contempt, it appears that his disobedience in failing to appear for examination was by inadvertence and that he submitted to an examination, he will be held guilty óf contempt and fined the amount of actual costs sustained by the judgment creditors and committed to jail until payment, not exceeding fifteen days.</p>

<p>Motion for an order of interpleader.</p>

<p>Sunday — Sabbath breaking — Public sports — Shows — Moving pictures.</p> <p>A moving picture show open to the general public, to which an admission fee is charged, giving numerous exhibitions in a hall or theater located on the principal street of a city in close proximity to places of worship, comes within the provisions of section 259-277 of the Penal Code prohibiting all public shows on Sunday which are serious interruptions of the repose and religious liberty of the community, and police interference with such exhibitions will not be restrained by injunction.</p>

<p>Injunction — Preliminary injunction—Grounds and matters considered — Injunction when right depends on nature of action — To prevent neglect of statutory duty.</p> <p>IThere plaintiff whose business requires the use of electric lights brings an action to compel the defendant, an electric lighting company, to furnish him an electric current, and defendant seeks to escape from its statutory duty to furnish the current by alleging plaintiff’s misconduct in fraudulently interfering with its meters, a temporary injunction should be granted on proper terms; since to deny it would give the defendant all the relief it demands upon its affirmative defence in advance of a trial upon the merits.</p>

<p>Damages — Excessive and inadequate damages — Personal injuries—■ Fractures and broken limbs — Lacerated hand and broken finger.</p> <p>In an action to recover damages for personal injuries occasioned by the" defendant’s negligence, where it appears that plaintiff’s left hand was lacerated and bruised and the index finger seriously injured so that it was disabled and the hone broken and the finger had to he kept in a plaster east for fourteen days, and it appears that the injury and the attendant shock and pain disabled the plaintiff for work for three months, and that he earned at his trade $4 per day, a verdict of $300 is not excessive.</p>

<p>Motion to set aside a verdict.</p>

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

<p>Bail in civil actions ■—Return or application of deposit made in lieu of bail — Return of deposit to defendant.</p> <p>The disposition of a deposit, made in lieu of an undertaking, upon the discharge of the defendant from arrest- in an equitable action, rests in the discretion of the court and will not be ordered to be returned to defendant during the pendency of an appeal by plaintiff from a judgment dismissing the complaint upon the merits, where plaintiff has filed an undertaking staying execution.</p>

<p>Carriers — Carriage of goods — Limitation of liability: Power to limit liability—Application of Public Service Commissions Law; Mode of limiting liability — Necessity of showing assent of shipper.</p> <p>Where the plaintiff delivered to a railroad company her trunk, to be transported from Arverne, L. I., to her residence in New York city, and took from the company a receipt which was written in her presence and which she kept and produced upon the trial, and it does not appear that plaintiff was about to become a passenger of the railroad company but that she paid express charges upon the trunk, the shipment cannot be considered as one of baggage belonging to a passenger but as a shipment of express freight; and the plaintiff was bound by the terms of the printed receipt given limiting the liability of the defendant to fifty dollars. The provision of section 38 of the Public Service Commissions Law (L. 1907, ch. 429), that no contract, stipulation or clause in any receipt shall exempt or be held to exempt any common carrier from any liability for loss, damage or injury caused by it to freight or other property from the time of its delivery for transportation until the same shall have been received at its destination, and a reasonable time shall have elapsed after notice to consignee of such arrival to permit of the removal of such freight or property, was intended to apply to freight shipments and not to an express carrier having a duty to make delivery to the consignee personally; nor does the provision for exemption from liability forbid a limitation of such liability by a proper contract, stipulation or receipt.</p> <p>The provision in said section of said Public Service Commissions Law that every carrier shall be liable for damage or injury to baggage up to its full value, but that the value in excess of $150 must be stated and a receipt issued stating the value, and permitting an increased charge for baggage over $150 in value or 150 pounds in weight, is intended to apply only to the carriage of property as baggage and not to a shipment by express.</p>

<p>Infants — Property and conveyances —Avoidance of conveyance by infant — Conveyance, how disaffirmed.</p> <p>Ejectment—Cause of action—Conditions precedent to .bringing of action — Disaffirmance of deed given by plaintiff during infancy.</p> <p>Ejectment cannot be maintained by one who has deeded away the lands that are the subject of the action, during his minority, until, after becoming of age, he has disaffirmed his deed by executing a deed to another person, or by actual entry for the purpose of disaffirmance, or by some other act clearly demonstrating his intent to avoid his deed.</p>

<p>Motion to set aside a verdict.</p>

<p>Master and servant — Master’s liability for injuries to servant — Contributory negligence of servant — Choice of alternative involving risk.</p> <p>Where a person employed by a railroad company in its repair yard, who, in coming to-Ms work, instead of crossing the tracks by a bridge near by, over which he could have passed in safety to his place of work, chose to cross them on grade where there was no distinct or outlined pathway, and where on the opposite side was a railroad yard with many tracks used for the storage and repair of cars and for the handling and delivery of freight, in an action, brought by the administrator of the employee who was killed in attempting to cross the tracks, to recover damages against the company for causing his death, a verdict for the plaintiff should be set aside as against the weight of evidence; especially where a false estimate of the evidence by the jury is likely to have been induced by questions that suggested the answers, and assumptions of fact wMch called for assent from a willing witness.</p>

<p>Motions to set aside verdicts for plaintiffs and for a new trial.</p>

<p>Marriage — Annulment of marriage — Grounds ■.— Physical incapacity — Resulting from age. „</p> <p>The marriage of a soldier’s widow fifty-six years old and drawing a pension with one sixty-nine years of age will not be annulled for Ms physical incapacity.</p>

<p>Navigable waters — Ownership of lands under waters, etc.— Paramountcy of right of United States to improve channel.</p> <p>The title to land under navigable waters leased for oyster culture is subject to the right of the Federal government to dredge it for the purpose of improving navigation, without compensation to the lessee.</p> <p>An action is not maintainable by the lessee of land under navigable waters of the Great South bay, on which he is engaged in oyster cultivation, to restrain the prosecution of work under a contract with the Federal government to dredge a channel across the leased land, though plaintiff’s lessor is seized thereof in fee simple absolute.</p>

<p>Contracts — Validity of contracts—Effect of invalidity or illegality — Effect of partial illegality or invalidity — Where the agreement is entire — Entire and separable contracts.</p> <p>Whether the promises in a contract are severable depends largely upon whether the parties have apportioned the consideration on the one side to the different covenants on the other.</p> <p>The contract is severable if the consideration is apportioned so that for each covenant there is a corresponding consideration; but where the failure of a part would defeat material objects of the contract and would have affected it had such failure been anticipated, the contract is entire.</p> <p>A contract whereby defendants, in consideration of the agreement of plaintiff to install a telephone exchange throughout defendants’ hotel, agreed to furnish certain space and accommodation for the telephone booths and appliances, pay a certain consideration and give the plaintiff the exclusive right to place telephones in the hotel is an entire one as the agreements on both sides cannot be apportioned, and the contract cannot be held valid so far as it gives the plaintiff the right to maintain and operate an exchange and requires defendants to pay therefor, as, because of its exclusive features void as against public policy, the whole agreement falls.</p> <p>Where said contract is necessarily a part of the plaintiff’s case, a recovery for a balance due for services rendered by the plaintiff to the defendants cannot be had.</p>

<p>Demubbeb to complaint.</p>

<p>Libel and slander — Words concerning occupant of office — In general.</p> <p>A complaint which, after setting forth the publication in defendant’s newspaper claimed to be libelous, alleges that defendant by said publication meant to charge that the plaintiff in his official capacity as "county _ judge had rewarded a member of assembly, naming him, with references and lucrative appointments for procuring the passage of a bill raising the plaintiff’s official salary, states a good cause of action; as the language used'was obviously calculated to degrade the character of the plaintiff, impeach his integrity as a judge and injure him in the public estimation.</p>

<p>Abutting owners — Remedies of abutting owners and actions against railroad companies — Action for injunction and damages — Effect of transfer of property —Accrued damages and prospective damages.</p> <p>Where, by a separate instrument executed at the time of the conveyance of certain property in Park avenue in the city of- New York, it was agreed that a cause of action for damages already accrued against the defendant railroad companies, caused by the elevation of their tracks in front of said premises or the running of engines or trains on said tracks or connected in any way therewith, should not pass by the conveyance but should remain the property of the grantors, they had a good cause of action against the railroad companies for fee damages under the decision in Muhlker v. Railroad Company, 197 U. S. 544; but the separate agreement reserved no cause of action for rental damages thereafter accruing.</p> <p>The plaintiffs have the right to have the real damages assessed without regard to an agreement made by their grantee liquidating the damages, who in respect thereto was their trustee and who acted without their knowledge; and are entitled to a decree enjoining the railroad companies until the payment thereof and compelling their said trustee, one of the defendants herein, to release the easements upon payment of such damages.</p>

<p>Fraudulent conveyance — Who may attack and conditions precedent — Who may attack conveyance — The grantor’s heirs cannot. Incompetency — Effect of contracts with incompetent persons, etc.— Evidence of incompetency — Sufficiency of evidence.</p> <p>Where a husband and wife convey their real estate to one of their daughters for the purpose of hindering and delaying creditors, of making some provision for their daughter to whom the conveyance was made and, at the same time, provision for their declining years and with the agreement on the part of the grantee that, from the rents and profits of the property conveyed, she will provide for them as long as they live; and where, for ten years after the execution of the deeds in question, the title to the property conveyed and the grantee’s right and ownership remained apparently unchallenged, the remaining heirs-at-law of the grantors cannot, after their death, maintain an action to impress a trust in their favor upon the property conveyed, in the absence of any evidence that the grantee counseled or advised the transfers or that the grantors, her parents, were influenced in any way by her opinions or by any solicitations on her part.</p> <p>But where it appears that the husband, at the time of the transaction, was seventy years of age; that he had been suffering for a considerable time from a disease that had greatly impaired his physical powers, and to a degree changed his character and general disposition; that his conduct was unusual; that he was worried by pending litigation, feared approaching poverty, was melancholy and morose, and that he died from the progress of his disease about fifteen days after executing the conveyance of one of the parcels involved in the present action, and that the conveyance was without adequate consideration, the conveyance will be set aside.</p>

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

<p>Wills — Interpretation and construction — Disposal of the entire estate — Disposal of lapsed or void devises, etc.— Lapsed shares of lawfully accumulated income.</p> <p>Where a testator gave the residue of his estate to his executors in trust during the life of his wife, to pay to her so long as she remained his widow and unmarried the income thereof, providing that, in case of her marriage, she should thereafter receive the income of one-third only and that the executors should retain the income of the remaining two-thirds and pay the same over, together with an equal part of the residuary estate, to the' testator’s children upon their respectively attaining the age of twenty-one years, and further providing that, in case his children should all die before his said wife without lawful issue, his said residuary estate should go to his two brothers and their heirs and assigns forever, share and share alike; and where, after the death of the testator, his widow remarried and his only child thereafter died without issue, held, that the testator’s scheme of accumulation was for the benefit of his child during minority and that, after the death of the child, the previous accumulations, as well as the two-thirds of the future income, should be paid to the testator’s surviving brother and the administratrix of his deceased brother during the lifetime of the widow.</p>

<p>Accord and satisfaction—What constitutes — Delivery and acceptance of obligations of third persons — Agreement to credit on book account.</p> <p>Pleading — Answer or plea — Defense of new matter — Sufficiency in general—Accord and satisfaction.</p> <p>Saving questions for review — Objections and exceptions in general — Necessity — Evidence.</p> <p>Taking case from jury and nonsuit — Weight and sufficiency of evidence— Evidence of defendant supplying defects in plaintiff’s proof.</p> <p>Examination of witnesses — In general — General questions.</p> <p>Where plaintiff sold defendant goods and, L. owing defendant, it was agreed by all three that L. should credit plaintiff and charge defendant with the amount of the purchase price, there was an accord and satisfaction, though no entry was made eo instimti by L. in his books.</p> <p>Defendant’s answer in justice’s court in an action for the purchase- price which alleged “ that prior to the commencement of this action' the plaintiff was fully paid and satisfied and discharged, and the plaintiff and defendant settled and adjusted said claim, and the defendant was released and discharged from said claim and the whole thereof ” was sufficient.</p> <p>No objection having been raised at the trial to the admission of testimony upon the ground that the alleged accord and satisfaction had not been sufficiently pleaded, no such objection can be raised on appeal from the judgment in plaintiff’s favor.</p> <p>The denial of defendant’s motion for a nonsuit at the close of plaintiff’s case is not error for which a judgment for plaintiff should be reversed where a like motion at the close of the whole case is properly denied.</p> <p>It was error to permit L.’s bookkeeper, after having testified that defendant did not leave forty dollars to pay plaintiff, to testify in general language that, at the time of the settlement, defendant was paid in full by L.</p>

<p>Infants — Actions by and against infants — Appearance1— Consent of guardian ad litem.</p> <p>A judgment rendered in justice’s court against an infant defendant for whom, over objection, a guardian ad litem, who had not filed his written consent to act, had been appointed after the case had been called for trial, must be reversed on appeal.</p>

<p>Evidence — Relevancy — Previous or subsequent conditions — Value of colt subsequently foaled.</p> <p>Where, in an action to recover, as part of the purchase price of a mare, the sum of ten dollars for the service of the stallion by which she was with foal, the answer is a general denial and counterclaim for breach of express warranty of soundness, it is error to permit a witness for defendant to testify as to the value of the colt at the time of the trial, when it was more than' eleven months old.</p>

<p>Municipal Courts — Procedure — Costs — In actions for servants’ wages — Municipal Court of Buffalo.</p> <p>Where plaintiff, a domestic servant, prior to the commencement of an action to recover wages, demanded of defendant two dollars and fifty cents when she was only entitled to two dollars, as established on the trial, she is not entitled to additional costs under section 458 of chapter 105 of the Laws of 1891 (charter of the city of Buffalo), as amended.</p>

<p>Appeal from a judgment of conviction in the County Court of Kings county.</p>

<p>Witnesses — Disqualification by reason of confidential relation — Between attorney and client — Waiver of objections.</p> <p>Where a person appeared before the grand jury in- obedience to a subpoena issued by the district attorney and was examined in regard to a sale of railway property, which was being investigated to ascertain if the witness and -others, in connection therewith, had stolen a great sum of money; and the witness, though invited and persistently importuned by the district attorney so to do, as persistently refused to waive his privilege and permit his counsel to testify relative to his communications to him respecting the transaction; although the witness fully answered the interrogatories of the district attorney relating to such transaction under the compulsion of the law and the coercive measures adopted by the district attorney, he did not by so doing waive his privilege; and the district attorney cannot require the witness against his will to reveal the communications confided to his counsel, nor the counsel to disclose the communications made to him by his client.</p>

<p>Supplementary proceedings — Property which may he .reached — Earnings— Earnings within sixty days — Proof required to exempt.</p> <p>The fact that a judgment debtor maintains a home for his wife and two children who are dependent upon him, in the city of New York, is not enough to justify the exemption of his earnings for personal services rendered within sixty days, under section 2463 of the Code of Civil Procedure, without proof showing that such earnings are necessary for the use of his family.</p>

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

<p>Attorney and client — The relation with the client — Lien — Right to lien — Persons and estates subject to lien — Attorney employed by real party in interest — Rot protected against settlement by nominal plaintiff.</p> <p>The attorneys for the plaintiff’s assignor for whose benefit an action is being prosecuted cannot insist upon the protection of their lien by summary order, where it is alleged the nominal plaintiff has made a collusive settlement, in the absence of proof of prejudice to the attorney’s rights.</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>Appeal by the plaintiff from a judgment dismissing the complaint, rendered in the Municipal Court of the city of Rew York, tenth 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, twelfth district, borough of Manhattan.

Appeal by the defendant from a judgment fo-r ninety-four dollars and twenty-two cents, entered in plaintiff’s favor in the Municipal Court, first district, borough of The Bronx, after a trial before the court and a jury.

<p>Appeal by the defendants from a judgment for $522.50 and costs, recovered in the Municipal Court of the city of New York, ninth district, borough of Manhattan, and from an order denying defendants’ motion for a new trial under section 254 of the Municipal Court Act.</p>

Appeal T>v the defendant from a judgment in favor of the plaintiffs, rendered in the Municipal Court of the city of New York, seventh 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, twelfth district, borough of Manhattan.

<p>Municipal Courts — Procedure — Judgment — For costs after appeal: Review — Decision — When reversal will be ordered.</p> <p>Where the Appellate Term reverses a judgment of the Municipal Court of the city of New York in favor of the p'aintiff and directs a new trial, with costs to the defendant to abide the event, and upon a new trial the defendant prevails, a separate judgment for the costs of the former trial and appeal is not authorized and must be reversed.</p> <p>Where, upon an appeal from such separate judgment, the return does not disclose the occurrence of the event upon the happening of which the defendant’s right to the costs of the former trial and appeal was made to depend, the judgment must for that reason he reversed.</p> <p>MacLean, J., dissented.</p>

Apeal by the defendant from a judgment of the City Court of the city of Mew York, entered in favor of the plaintiff upon the decision of the court.

<p>Landlord and tenant — Rights, duties and liabilities in regard to premises — Possession, enjoyment and use — Covenants for quiet enjoyment — Implied covenant — Action for breach — Damages.</p> <p>Although, in the case of the lease of an apartment where the means of supplying heat are exclusively under the control of the landlord, a duty on the part of the landlord to furnish heat adequate to the comfortable habitation and enjoyment of the apartment arises from the implied covenant for quiet enjoyment, the tenant cannot, in the absence of an express covenant, recover damages against the landlord for .failure to furnish heat, while retaining possession of the premises; but, in such a case, upon the tenant’s surrendering the premises for lack of adequate heat, he may claim a constructive eviction. .</p>

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

<p>Appeal by the tenant from a final order of the Municipal Court of the city of ¡New York, sixth district, borough of Manhattan, in favor of the landlord, made in summary proceedings to recover the possession of demised premises for the tenant’s default in the payment of rent.</p>

<p>Appeal by the defendants from a final order in summary proceedings, awarding possession of the premises to the plaintiff, entered in the Municipal Court of the city of Hew York, second district, borough of The Bronx.</p>

Appeal by the tenant from a final order in summary proceedings, rendered in favor of the landlords in the Municipal Court of the city of ¡New York, fourth district, boroug'h 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, sixth 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, second district, borough of The 'Bronx.

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

Appeal by the defendant Markowitz, from a judgment of the City Court of the city of Hew 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>Sales: .Interpretation and evidence of contract — Property included: Warranties — Express warranties — Description.</p> <p>Where a contract for the exchange of real estate contains a clause that: “ The chandeliers, gas fixtures, ranges, heating and hot water apparatus, water closets, bath-tubs and other plumbing and all personal property belonging to the parties now on said premises are to be included in the sale and in the warranty above set forth,” the words “ and all personal property belonging to the parties” which were written in a blank space apparently left for the addition of further property, relate to chattels not specifically mentioned, and as to the ownership of which there might be some question of doubt, and the warranty does not cover two ranges, the title to which was not in the defendant.</p>

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

<p>Damages — Measure for torts — Loss of or injuries to property—*• Injuries to automobile.</p> <p>Where, in an action for damages to plaintiff’s automobile resulting from an accidental Collision with a trolley car, it is shown that, while the machine was being repaired, he neither used nor had need of one, evidence as to the rental value of an automobile during such period is inadmissible on the question of damage.</p> <p>Evidence as to the cost of repairs to the automobile other than those attributable to the accident is inadmissible.</p>

Appeal by the defendant from a judgment in favor of the plaintiff, entered in the Oity Court of the city of Hew York, a.nd from an order denying defendant’s motion for a new trial.

Application under section 2471a, Code of Civil Procedure, for an order requiring the delivery of all the books, etc., belonging to the city clerk.

Heading on a writ of certiorari to review the proceedings of the commissioners of taxes of the city of Hew York in assessing certain tangible property of the Edison Electric Illuminating Company for the purpose of taxation.,

<p>Motion to quash or supersede a writ of certiorari.</p>

<p>Intoxicating liquors — Revocation, or forfeiture of license — Grounds for forfeiting license — Premises disorderly.</p> <p>Where one part of a building is occupied as a saloon and another part as a disorderly house, and the two parts are separated only by a hall and the inmates of the disorderly house are supplied with drinks from the bar, the provisions of the Liquor Tax Law are violated and the liquor tax certificate will be cancelled.</p>

<p>Intoxicating li~-ors— Local option — Resuhmission.</p> <p>In the provisions of the Liquor Tax Law, for a resuhmission to the electors of the local option questions where the same have not heen properly submitted, the proper submission contemplated is to be construed as comprehending the counting and certifying of the vote and the declaration of the result.</p> <p>Where it appears, upon an application for the resubmission to the electors of a town of the local option questions provided for in the Liquor Tax Law, that the questions were not properly submitted for the reason that the vote was not properly canvassed, but that the irregularities complained of would not have changed the result of the election, the application should he denied.</p>

<p>Contracts — Validity of contracts: Contracts involving violation of positive statute — Provisions of Labor Law: Effect of invalidity or illegality — Parties not in pari delicto.</p> <p>The provisions of section 3 of the Labor Law, that contracts with municipal corporations shall stipulate that laborers, workmen or mechanics shall not be permitted or required to work more than eight hours in any one calendar day, were not intended to apply to a case where a workman, by accident or oversight,, labors beyond the prescribed limit; nor were they intended to prevent a workman who had worked eight hours upon the work of the municipality from working overtime upon work of private customers of the contractor and receiving pay therefor.</p> <p>Bor can a municipality, after notice that a contractor has violated the provisions of the Labor Law in question, .permit the contractor to proceed with his contract and, after having availed itself of the services of the contractor rendered in pursuance' of the contract and accepted work done under it, repudiate its obligation to pay therefor.</p> <p>Where a municipality enters into a contract for its public printing for the period of a year and the contract contains the provisions required by section 3 of the Labor Law and, after the expiration of the contract, the municipality from time to time orders work done by, and purchases supplies from, the contractor, it cannot refuse to pay therefor on the ground that the provisions required by the Labor Law and contained in the written contract, which has expired, were violated.</p> <p>Although it is the duty of a municipal corporation to provide in its contracts for an observance of the requirements of section 3 of the Labor Law, a like obligation is not imposed upon one who does work for and furnishes supplies to the municipality; and the failure of the contract to contain the required provisions does not impair the right of the contractor to recover compensation for such work and supplies.</p>

<p>Civil Service: In general — Officers subject to act — Deputy; Bookkeeper; Cashier: Preference of veterans and firemen — Abolishment of office or discharge of unnecessary employee.</p> <p>The provisions of section 21 of the Civil Service Law, that an honorably discharged veteran of the Spanish War shall not be removed from any position which he holds by appointment except for ineompetency or misconduct, do not prevent a county clerk from abolishing the position held by one acting as a clerk or assistant in the collection of mortgage taxes, for reasons of economy and insufficient appropriations.</p> <p>One who is employed in a county clerk’s office as a clerk and assistant in the collection of mortgage taxes, although called a “ mortgage tax deputy ” by the county clerk and by the State Board of Tax Commissioners, is not such a deputy as to be included in the exempt class under the Civil Service Law.</p> <p>An employee of the county clerk to assist in the collection of mortgage taxes who performs the well-known duties of a cashier, being personally responsible to the county clerk for collecting upward of one hundred thousand dollars annually, is properly classified by the State Civil Service Commissioners as a cashier and may be appointed or removed at the discretion of the county clerk; and for his qualifications and right to hold the position the Civil Service Law makes no provision.</p> <p>An employee in the county clerk’s office, who assists in the collection of mortgage taxes as a bookkeeper, is within the competitive class of the Civil Service Law and entitled to all its benefits.</p> <p>The employee known as a “mortgage tax deputy,” whose office has been abolished by the county clerk for reasons of economy and insufficient appropriations, is entitled to have his name furnished to the Civil Service Commission with a statement to the effect that his position has been abolished or made unnecessary and that his services are no longer required, to the end that the State Civil Service Commission shall place his name upon the list of suspended employees, as provided by section 21 of the Civil Service Law.</p>

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

<p>Heabihg on the return to an alternative writ of mandamus.</p>

<p>Application to make an alternative writ of prohibition absolute.</p>

Application on the return to an order to show canse why an absolute writ of prohibition should not issue restraining C. A. Wieting, State Oommissioner of Agriculture, and his deputy, John H. Grant, from further proceeding with the examination of the witness, Harry Fenton, as provided by section 32 of the Agricultural Law.

<p>Motion to vacate an order for the examination of the judgment debtor in supplementary proceeding's.</p>

<p>Motion to punish judgment debtor for contempt.</p>

<p>Pleading — Filing service and withdrawal — Setting aside service — For want of process.</p> <p>Where no summons was served, the service of a complaint only will be set aside on motion.</p>

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

<p>Attachment — Affidavit to obtain attachment — Averments as to grounds — Averments as to nonresidence.</p> <p>Residence, as used in the statutes authorizing attachments, does not mean legal domicile but actual place of abode or living, either of a temporary or permanent character, at which the due service of process may be made.</p> <p>Where service of process can be made in this State upon a debtor having a legal residence or domicile in another State, he is not liable to attachment; and the burden of showing his nonresidence as a ground for the issuance of a warrant of attachment against him is upon the plaintiff.</p> <p>Where allegations in plaintiff’s affidavit upon which an attachment was granted, tending to show defendant’s nonresidence, are met on motion to vacate the attachment by an affidavit of defendant showing his continuous residence in this State for over eight years, and certain facts indicating such residence are corroborated by five other persons, some of whom seem clearly disinterested and two of whom swear that on the day the attachment was granted the defendant resided at a specified place within the State of New York, the motion will be granted.</p> <p>The affidavit of the process server that he made “ every endeavor ” to locate defendant in the State of New York, without stating that he knows the defendant, or the time, place, nature or extent of his endeavor to serve the attachment, is insufficient.</p>

<p>Trade-marks and trade-names — Acquisition, transfer and abandonment — Bfiect of dissolution of partnership: Infringement and unfair competition — Particular trade-marks.</p> <p>Where, upon the dissolution of a partnership, it is agreed that neither of the parties is to use the name of “ Slip Cover Company,” the name under which the partnership business had been conducted, the use in business of the name “ New York Slip Cover Company ” by one of the parties will not be enjoined.</p>

<p>Trade Unions — Statutory rights of labor organizations — Right to label or device.</p> <p>The use of a colorable imitation of the label or device of a labor organization, though associated with distinguishing words or names, contravenes the rights secured to the organization by the Labor Law; and a baker who uses a label which at a casual glance is like that of the union should be restrained at the suit of the union from its further use.</p>

<p>Injunction — Who and what may be enjoined — Acts of public and municipal corporations and officers thereof — Enjoining police officers.</p> <p>The proprietor of a newspaper has a constitutional right to publish his paper and the fact that he has published matter reckless and scurrilous, consisting of harsh and unjustifiable criticism of his fellow citizens, does not warrant the police authorities in suppressing its future publication.</p> <p>Though equity will not interpose by injunction to prevent the enforcement of the criminal law, it will not refuse to interfere with a seeming attempt to enforce it which is, in fact, only a continuous trespass.</p>

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

<p>Motion by plaintiff for an injunction pendente lite to restrain the defendants, as the chief executive officers of the police department of the city of Rochester, from closing or attempting to close the theater of the plaintiff known as the Cook Opera House on any Sunday evening, and from interfering with the plaintiff’s presenting in said theater on Sunday exhibitions of moving pictures, with or without oral lectures connected therewith, stereopticon pictures with songs, sacred and secular, explanatory thereof, and descriptive instrumental music to accompany said moving pictures and songs.</p>

<p>Pleading — Amendments — Amendments by leave of court — Conditions on granting leave to amend — Payment of costs.</p> <p>Where an action by tenants to recover damages alleged to have been sustained by the collapse of a building from the landlord’s failure to shore up the walls while excavating on adjoining property has been tried on the theory that the plaintiffs’ remedy was based upon the defendant’s violation of the provisions of the Building Law and the verdict in plaintiffs’ favor was reversed by the appellate court on the ground that the action was commenced under a misconception of the plaintiffs’ proper rights and remedies, the plaintiffs should have leave to amend their complaint by alleging a breach of a covenant in their lease for quiet enjoyment of the demised premises, only upon payment by them of all the taxable costs and disbursements in the action.</p>

Actions on contract. Motion for leave to serve, amended answers, setting up that at time action was brought plaintiff was not the real party in interest, also defense of payment.

<p>Motion by plaintiff to consolidate actions.</p>

<p>Witnesses — Attendance and privileges of witnesses, etc.— Subpoena duces tecum.</p> <p>A subpoena duoes tecum to compel the production of hooks and documents for use hy the parties to he examined under section 870 of the Code of Civil Procedure is proper and should not he set aside.</p>

<p>Motion for an order to take the deposition of witnesses to be used upon a motion under section 885 of the Code of Civil Procedure.</p>

<p>Motion to strike the cause from the calendar.</p>

<p>Municipal Courts: Jurisdiction—Municipal Court — Conditional sales: Procedure — Costs — In City Court of New York.</p> <p>An action to recover possession of a piano which was the subject ef a conditional sale cannot be brought in the Municipal Court oE the city of New York; and, in such an action brought in the City Court, the plaintiff, upon recovering judgment, is entitled to a full bill of costs and disbursements.</p>

<p>Motion to vacate and set aside an execution.</p>

<p>Motions to review the taxation of costs.</p>

<p>Execution against the person — In whose favor and against whom issued — Exemptions — Females.</p> <p>Where a married woman brings an action to recover damages for slander in the City Court of the city of New York and the jury finds a verdict for the defendant, the defendant is not entitled to a judgment providing that, if the execution against the plaintiff’s property is returned unsatisfied, the defendant may have execution against the plaintiff’s person.</p>

<p>Judicial sales — Grounds for refusing to complete title, etc.— Encroachments; Nonjoinder of parties: Effect of statement in notice of sale.</p> <p>’ The purchaser of mortgaged premises at a sale under a judgment of foreclosure should not be compelled to complete his purchase where there is an encroachment upon the premises which would make the title unmarketable, although the advertisement of sale, after describing the property to be sold, contained the words “ subject to any state of facts shown by an accurate survey.” Where, in an action for the foreclosure of a mortgage on real property, a junior mortgage is held by a foreign corporation for which permanent receivers have been appointed in the State where the corporation was organized, such permanent receivers are necessary parties defendant; and the failure to join them as such renders the title derived through the sale under the judgment of foreclosure so defective that the purchaser should not be compelled to accept it.</p>

<p>New trial — Grounds — In general — Intrusion of another than the real defendant.</p> <p>Where the plaintiff intended to sue Abraham but the process ran to Adam, the defendant’s brother Michael was not justified in injecting himself into the action and serving an answer, describing himself as “ sued as Adam,” and pretending to defend the merits of the action; and, where the plaintiff’s attorney accepted the answer served by Michael and a trial was had, a verdict rendered upon such trial should be set aside.</p>

<p>Saving questions for review—Presentation and reservation,of questions in general — Matters reviewable in absence of presentation of question in trial court — Facts conceded or not litigated.</p> <p>Where, in an action against a carrier for the loss of goods entrusted to it, the defendant’s efforts upon the .trial were wholly directed to show that it never received the goods, it cannot, for the first time upon appeal, raise the objection that it did not • appear that the defendant did not deliver "the goods to the connecting carrier at the terminus of its own line as required by its contract of carriage.</p>

<p>Motion for new trial. The opinion states the case.</p>

Motion by the defendant Orth, upon the trial justice’s minutes, to set aside the verdict and for a new trial on all the grounds specified in section 999 of the Code of Civil Procedure.

<p>Appeal — Time of taking — Notice of entry of judgment or order — Amendment after notice; Sufficiency of notice.</p> <p>After the entry of an order amending a judgment, a copy of the amended judgment with notice of entry thereof must he served in order to limit the time to appeal therefrom.</p> <p>Where the notice of entry of an order, served with a copy of the order to limit the time for appeal, is so written on the copy of the papers served as not to he discoverable upon reasonable inspection of the papers, and the indorsements upon the papers are also misleading in failing to state that a notice of entry is contained in them, such service is ineffectual to limit the time to appeal.</p>

<p>Mechanics’ Liens: Bond or deposit to avoid lien — Subsequent extension by order: Discharge, satisfaction and termination — Continuance — After giving of undertaking and discharge.</p> <p>After the filing of an undertaking pursuant to subdivision 4 of section 18 of the Lien Law and the entry of an order cancelling the lien, the entry of an ex parte order continuing the lien for one year and directing the county clerk to redocket the same is unauthorized and will be vacated on motion.</p>

<p>Discovery — Bill of discovery — When lies — Effect of Code of Civil Procedure.</p> <p>Account, Action for—Particular classes of persons liable and entitled to accounting — When no fiduciary relations nor partnership exists.</p> <p>An equitable action cannot be maintained for the sole purpose of procuring a discovery of the books and accounts of a deceased person in the hands of his executors by one having a claim against his estate.</p> <p>An equitable action cannot be maintained against the personal representatives of a deceased person where the parties were not partners and there were no fiduciary relations between them, and the only relief that plaintiff could secure is a money judgment.</p> <p>The necessity for a discovery to enable the plaintiff to ascertain the extent of his claim or for an incidental accounting is not a sufficient' ground upon which to maintain an action in equity, since the provisions of sections 803 to 809 of the Code of Civil Procedure provide an adequate remedy to the plaintiff in an action at law.</p>

<p>Deeds — Delivery — Death of grantor before actual delivery.</p> <p>Where the owner of real property signs, seals and acknowledges a deed and places it in the hands of a third party to deliver to the grantee after her death, or to return the same to her at any time she may so desire, a delivery thereof .by the depositary to the grantee after the death of the grantor is ineffectual to pass the title to the lands therein described.</p> <p>Whether such.,instrument' has been delivered by the grantor so ■ as to become effectual as a conveyance depends upon the intention of the grantor in placing the same in the hands of the depositary; and, if she intended to reserve the right to withdraw it, it' was not a valid conveyance.</p> <p>Where the grantor delivered to a depositary such an instrument, instructing him to deliver it to her nephew J. after her death, provided he survived her, or to deliver it to her at any time she might so desire, and thereafter withdrew such deed from the depositary and gave him a deed to her nephew A. in its place, telling him to deliver it to A. after her death, and the depositary then placed it in the same envelope which had contained the first one and on which he had written the instructions first received. and which he then changed "by striking out the name of the grantee in the first deed and inserting the name of the grantee in the second deed, only, the court will presume that the second deed was delivered upon the same conditions as the first except as expressly changed by the directions subsequently given and that the grantor, not having expressly renounced it, intended to reserve the right to recall the deed at any time.</p>

<p>Motion by defendant to set aside verdict in favor of plaintiff and for a new trial.</p>

<p>Corporations — Power of corporation to make contracts, etc.— Mortgages — Consent of stockholders — When required — Mortgage in compliance with antecedent contractual obligation; Purchase money mortgage.</p> <p>Where the owner of chattels mortgages them as security for the performance by her of the conditions of a lease to her of a hotel by the mortgagee, and afterwards assigns the lease to a corporation which covenants to perform the conditions of the lease, and the lease contains a provision that the tenant will annually execute a new chattel mortgage so as to entitle it to be filed and be a first lien on the property and .also that the failure of the landlord to insist on the strict performance of any covenant or condition shall not be asserted as a waiver for the future of any covenant or condition; and where, three years thereafter, the original mortgage not having been renewed or refiled, the three directors of the corporation, who also owned more than two-thirds of its capital stock, agreed to give and the corporation accordingly gave a new mortgage upon the same conditions as the original mortgage but without any meeting of the stockholders or the execution of the consents prescribed by statute, held, that the new mortgage being but the observance of contractual obligations already entered into by the corporation does not fall within the prohibition of the statute.</p> <p>The original mortgage having been given for the purchase price of the chattels covered thereby, which were subsequently transferred to the corporation, the mortgage executed by the corporation comes within the exception of the statute in favor of purchase money mortgages.</p>

<p>Action to recover dividends declared on corporate stock.</p>

<p>Ejectment — Parties — Defendants — Necessary defendants in general. Parties — Defendants — Who must be joined — In ejectment.</p> <p>In an action to recover the possession of real property, the only necessary party defendant is the occupant of the property sought to be recovered. In such an action, brought by one owning an undivided share in the property, the owners of the other shares and one having a right of dower in the premises are not necessary parties.</p>

<p>Corporations — Power of corporation to make contracts and effect of ultra vires contracts— Incidental powers — Exhibiting advertisements in discordant colors from vehicles of metropolitan stage line.</p> <p>A corporation operating a line of public stages running through one of the principal avenues of a great city which permits its vehicles to carry advertising signs, bearing striking pictures, in glaring colors contrasted so as to attract attention and not blended so as to produce a harmonious or artistic effect, and which constitute a disfigurement rather than an ornament but cannot be said to injure or endanger comfort, repose, health or safety, cannot be restrained by injunction from the further exhibition of such signs on the ground that they constitute a nuisance.</p> <p>Where a corporation, formed for the purpose of carrying passengers and property for hire in certain vehicles, and. keeping on livery horses and vehicles, and manufacturing and dealing in harness, vehicles, horses and all kinds of merchandise and commodities pertaining to or incidentally connected with, or necessary and useful in the business aforesaid, or which can be made or dealt in profitably in connection with said business or any and all of its branches, was thereafter authorized by law to operate its carriages through Fifth avenue and through other streets and avenues in the city of New- York, and was thereafter dissolved and its property, rights and franchises 'sold and purchased by a natural person who thereafter transferred them to another corporation subsequently formed to take and possess them, the last' mentioned corporation became vested with all the rights, privileges and franchises possessed by the original company.</p> <p>Authority to engage in the business of maintaining exterior advertising signs upon the vehicles of such corporation is not necessary to the exercise of the plaintiff’s corporate powers, or the performance of its corporate duties, or to the accomplishment of the objects and purposes of its incorporation, and is not to be implied.as an incident to the powders granted of carrying persons and property for hire. But, on the contrary, such business is an independent enterprise, entirely foreign to and disassociated from the plaintiff’s chartered business, which does not' tend to promote the comfort or convenience of its passengers or effect any improvement in its traffic facilities.</p> <p>The leasing of the exterior of such vehicles for advertising is an unauthorized use of the streets for a private purpose, and the court will not approve such an unauthorized act merely because it is a source of profit to the wrongdoer.</p> <p>Section 50 of the Greater New York charter, which empowers the board of aldermen to regulate the use of streets as well as the exhibition of advertisements or handbills along the streets and to establish ordinances to that end, is a sufficient authority for an ordinance prohibiting advertising wagons in the' streets, as against such corporation while attempting to exercise unauthorized privileges not common to the public and while engaged in a business ultra vires.</p>

<p>Demurebb to separate defenses in an answer.</p>

<p>Buildings — Contracts restrictive of right to huiid — Covenants by grantee qualifying right to build on lands conveyed — Construction of covenant.</p> <p>Injunction — Actions for injunctions — Defenses — Plaintiff’s violation of covenant sought to be enforced.</p> <p>Where a conveyance of lands contained an agreement on the part of the grantees, their heirs and assigns, to lay out the land in a certain manner, plant shade trees, lay sidewalks, grade streets and construct sewers, and that .said lands should not be devoted to certain purposes but should be used for residences and purposes incidental thereto and that each and every dwelling house should be erected not nearer than twenty-five feet of the front street line of the lot and that any barn on a lot adjacent to Amherst street should be erected at least twenty feet from Amherst street, held that the'provision relating to the location of dwelling houses applies to dwelling houses fronting on Amherst street, although such street never formed part of the tract conveyed, but bounded it on the north; and that such restrictions are not limited to the lots as originally plotted by the grantees in the deed which first imposed the conditions, but are equally applicable to lots thereafter formed by changes in the subdivision of the lands and in the location of the street lines.</p> <p>Nor will the fact that the steps to plaintiff’s house project about four feet into the twenty-five foot space constitute such a violation of the building restrictions on her part as to prevent her from maintaining an action to enjoin the defendant from a violation thereof.</p>

<p>Action upon a policy of fire insurance.</p>

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

<p>Mechanics’ liens — Foreclosure — Pleading — Amendment.</p> <p>In an action by a contractor against the owner to foreclose a mechanic’s lien upon a building erected in the city of New York, where the plaintiff alleges performance of the contract, but it appears upon the trial that the contract was not performed according to its terms in all particulars and that a deviation from the contract in one particular led to the filing by the bureau of buildings of violations of the building code which are still in force, a motion by the -plaintiff at the end of the trial to amend the complaint, so as to allege a substantial compliance with the contract and a waiver by the owner of a strict compliance, should be denied.</p>

Action to recover the amount awarded for the change of the grade of a street in the city of New York, borough of Brooklyn.

<p>Negotiable instruments — Actions — Complaint — Demand, presentment and notice.</p> <p>In a complaint in an action on a promissory note against the indorsers, an allegation of notice to the indorsers of presentment, demand and nonpayment, is necessary; and an allegation that the note was protested for nonpayment is not equivalent thereto.</p>

<p>Negotiable instruments — Actions — Answer — Consideration.</p> <p>New trial — Verdict, or findings contrary to law or evidence — Verdict contrary to law or instructions; Verdict contrary to evidence.</p> <p>In an action upon a promissory note transferred after maturity to the plaintiff by the payee, the facts that the note was given for the purchase price of a certain grain drill, with warranty as to its character and ability to do certain work required of it, and that it failed to fulfill the terms and conditions of the warranty and was practically worthless, are properly pleaded as a defense.</p> <p>But where in such a case it appears upon the trial that the drill had some value, which was placed by the witnesses at from five dollars to eighty dollars, and the jury were instructed to deduct from the face of the note any decreased value the drill had by reason of the alleged failure to meet the terms of the warranty, a verdict of no cause of action should be set aside.</p>

<p>Marriage — Evidence, etc.— Sufficiency — Foreign marriages.</p> <p>Divorce — Defenses and excuses — Non-existence or invalidity of marriage.</p> <p>A decree of separation must he founded upon a marriage that is valid under the laws of the country where it is celebrated; and proof of the festivities attendant upon a “ ritual marriage,” unaccompanied by a compliance with the statutory requirements, will not suffice, where it appears that the plaintiff, in the courts of that country, recovered a judgment for a large amount against the defendant for his failure to carry out his promise to legally marry her.</p>

<p>Easements — Nature and creation — Creation by prescription — Continuity of user — Interruption; Acquiescence.</p> <p>In establishing an easement hy prescription, a user of an elevated railroad with two tracks, one on each side of the street with an open space between them, for seventeen years is interrupted by the construction, at the end of that period, of a third track, erected between the original tracks, where the user began under legislative authority to construct, maintain and operate the two original tracks only, and where the third track was built so that the original tracks helped to support it and it became an integral part of a single structure composed of three tracks which enabled the company to run more trains and carry more passengers on the original tracks than was possible before the third track came into use and whereby the burden upon the servient estate was materially increased before the expiration of twenty years.</p> <p>Acquiescence, on the part of the owner of property affected hy the easement, in the use of the two original tracks for seventeen years, could not he availed of to cover their use when increased in weight, size and traffic capacity by a third track.</p>

<p>Action upon a contract.</p>

<p>Action to enforce specific performance.</p>

<p>Pleading — Complaint or declaration — Separate counts on same cause of action.</p> <p>Frauds, Statute of — Requisites and sufficiency of writing — Signature of memorandum — Signature of one party.</p> <p>The plaintiff may set out in separate counts the same cause of action.</p> <p>A memorandum in writing of an agreement for the sale of real property is sufficient to satisfy the requirements of the Statute of Frauds if subscribed by the vendor only.</p>

<p>Foreclosure of mortgages on land — Foreclosure by action and sale — Judgment or decree — Effect.</p> <p>Former adjudication — Adjudication in particular actions or proceedings — Foreclosure suits.</p> <p>In an action for the specific performance of a contract for the sale of real property, where it appears that the vendor’s title comes through the foreclosure of two mortgages which he held upon the property sold; that the property was triangular in shape; that the vendor’s first mortgage did not cover a lot constituting the apex of the triangle; that between the vendor’s two mortgages was a second mortgage held by a third person who was made a party to the foreclosure action under a general allegation to the effect that he had or claimed some lien subsequent to that of the plaintiff; that the holder of the intermediate mortgage appeared and interposed an answer alleging that the vendor’s two mortgages were given for the same indebtedness and, upon the trial of the issues, his contention was sustained and that the judgment, following the allegations of the complaint, directed the sale of the entire tract, including the apex of the triangle which was not included in the vendor’s first mortgage; hold that the judgment of foreclosure was valid and effective against the holder of the intermediate mortgage as an adjudication that the first mortgage embraced the entire property, and the vendor’s title under the sale of the premises pursuant to the decree of foreclosure was good.</p>

<p>Appeal from a judgment of a justice’s court in favor of the plaintiff for $18 damages and costs.</p>

<p>Process — Service — Service on corporations: Mode and sufficiency — Necessity of leaving copies with person to whom the same are delivered: Railroad companies — Freight agent; Assistant superintendent.</p> <p>Justices of the peace — Procedure in justices’ courts — Judgment — By default — Evidence — Where complaint is verified.</p> <p>The return of a constable that he has served the summons in an action in a justice’s court upon the defendant, a railroad corporation, by delivering true copies thereof to C, a freight agent of the defendant, without an averment that he left such copies with the person served, is insufficient.</p> <p>The summons, in an action in a justice’s court against a railroad corporation, may he served upon a freight agent, in pursuance of the provisions of section 2880 of the Code of Civil Procedure, "where the corporation has not designated a person upon whom process may he served as provided in said section, although it appears that the assistant superintendent of the company resides in the same county, unless such assistant superintendent is a' managing agent vrithin the meaning of section 2879 of the Code of Civil Procedure.</p> <p>In an action against a railroad company for damages arising from its alleged negligence in not safely transporting a naphtha launch, judgment cannot he rendered upon a verified complaint, without proof, as the provisions authorizing judgment to he so entered are limited to actions arising on contract for the recovery of money only or on an account.</p>

This is an appeal from a judgment of the police court -»f the village of Watkins, convicting the appellants of a violation of section 289 of the Penal Code of the State of Rew York, by willfully causing and permitting the morals of children apparently under the age of sixteen years to become depraved.

<p>Demtjbbeb to indictment. The opinion states the case.</p>

<p>Parent and child — Support and necessaries — Remedy to compel parent to support child — Absconding parents — Seizure of property.</p> <p>Code of Criminal Procedure, §§ 921-923.</p> <p>A warrant of seizure, under section 921 of the Code of Criminal Procedure providing for proceedings against parents leaving their children chargeable to the public, issued against a father for having absconded from his children, cannot he affirmed where it appears that the ofíense charged was committed, if at all, in the State of New Jersey.</p> <p>Nor can such a proceeding be maintained against a non-resident, against whom no process has been issued and who has not appeared nor received notice of the proceeding.</p>

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

<p>Pleading — Evidence admissible under the pleadings — What toast be pleaded — Fraud inducing contract.</p> <p>In an action to recover upon a written contract providing for compensation for obtaining a mortgage loan, evidence that defendant’s signature to the contract was obtained by fraud is inadmissible Under a general denial.</p>

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

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

<p>Insurance: Requisites and validity of contract — In general — Prepayment of premium — Waiver of prepayment: Actions on policies—Persons against whom action may be brought on Lloyds policy: Adjustment of loss — Necessity of arbitration.</p> <p>Contracts — Validity of contracts — Public policy in general — Agreements limiting control of court or depriving it of jurisdiction.</p> <p>Where a policy of insurance contains the clause: “No action shall be brought to enforce the provisions of this policy except against the manager as attorney in fact and representing all of the underwriters, and each of the underwriters hereby agrees to abide the result of any suit so brought,” an action can be maintained against the attorneys in fact who are also underwriters.</p> <p>A clause in such policy providing that any action on it must be brought in the Supreme Court is invalid, since the jurisdiction of courts is beyond the agreement of the parties.</p> <p>The insurers cannot invoice an arbitration clause as a defense to an action, where they neither appointed appraisers nor requested that action he taken under it.</p> <p>The fact that no premium was paid does not preclude a recovery on the policy, where it was delivered to the insured without exacting such payment.</p>

<p>Appeal by the defendant from a judgment of the City Court of the city of Hew York, rendered upon the verdict of a jury in favor of the plaintiff, and also from an order denying defendant’s motion for a new trial.</p>

Appeal by the tenants from a final order in summary proceedings, rendered in favor of the landlord in the Municipal Court of the city of Hew York, fourth district, borough of Manhattan.

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

<p>Landlord and tenant: Eights, duties and liabilities in regard to premises— Injuries from dangerous or defective condition — Injuries to tenants or occupants — Injuries caused by failure to repair.</p> <p>A tenant cannot maintain an action against his landlord to recover damages for personal injuries because of the landlord’s negligence in failing to keep his contract to repair.</p>

<p>Appeal from an order sustaining a demurrer and from a judgment thereon entered against the defendant in the Municipal Court of the city of New York, third district, borough of Manhattan.</p>

Appeal by the petitioners from a final order in summary proceedings, rendered in the Municipal Court of the city of Hew York, third district, borough of Manhattan.

<p>Appeal from a final order in summary proceedings to recover possession of leased premises for failure to pay rent, entered in favor of the landlords in the Municipal Court of the city of Hew York, second district, borough of Manhattan.</p>

<p>Appeal from a final order of the Municipal Court of the city of ¡New York, second district, borough of The Bronx, establishing’ the rights and liabilities of the parties upon the redemption of a lease.</p>

Eeargument of an appeal from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of Hew York, second district, borough of Manhattan.

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

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

<p>Landlord and tenant — Rights, duties and liabilities in regard to premises— Injuries from dangerous or defective condition — Injuries to licensees or employees of tenant — Injuries caused by failure to repair.</p> <p>A landlord is not liable to his tenant for injuries to the latter’s daughter which were caused by catching her foot in an iron grating beneath the show window of the demised premises which were occupied as a saloon, where the tenant agreed to make all repairs and the grating covered an area which was for the purpose of admitting light and air into that portion of the cellar under the store which was exclusively under the tenant’s control, and where, at times, the tenant’s bootblack stand was placed over the grating.</p>

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

<p>Appeal by defendant from an order overruling his demurrer to plaintiff’s complaint and also from a judgment subsequently taken by default in favor of the plaintiff in the Municipal Court of the city of Eew York, second district, borough of Manhattan.</p>

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

<p>Guaranty—Construction and operation — If ature, scope and extent of liability in general — Guaranty of rent while tenants in occupation.</p> <p>Where defendants guaranteed that if, at any time during the term of a lease, the tenants should be in occupation of the demised premises and should “fail to pay the rent for such month or months that they will be in occupation of said premises during the term of said lease” the defendants would pay such rent, they are not liable for rent after the tenants, with the consent of the landlord, had surrendered to him possession of the premises.</p>

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

Appeal by tbe defendants from a judgment in favor of tbe plaintiff, rendered in'the Municipal Court of tbe city of Hew York, tenth district, borough of Manhattan, and from ah order denying tbe defendants’ motion for a new trial, with five dollars costs.

<p>Attorney and client — The relation with the client — Summary remedies of client — When authorized — Not lost by attorney’s disbarment.</p> <p>An -attorney, who receives moneys of his client for which he is liable to account, does not escape -the summary jurisdiction of the court to compel him to account for and pay over such moneys by reason of the fact that he is afterward disbarred from practice and his name is -stricken from the roll of attorneys.</p>

<p>Eminent domain: Power in general — Definition: Condemnation ■— Issues determined; Admissibility of evidence — Structural value of erections, Affidavits of comparative values, Availability for municipal water supply, Damages; Motion to commissioners to open case — Exercise of discretion by commissioners; Confirmation of report — Objections — Necessity for separately stating items of damages, Excessive or inadequate damages, Erroneous principle of estimating damages: Measure of compensation — Market value, Availability for municipal water supply, Unquarried stone, Legislation tending toward appropriation, Value of portion left.</p> <p>The right of eminent domain is the right of the State to take, at any time, the private property of any citizen for public use upon making just compensation.</p> <p>Under the constitutional provision (Article 1, § 6") “ * * * nor shall private property be taken for public use without just compensation ” a landowner is entitled to receive the fair and reasonable market value of his property at the time of its appropriation, «for its best available uses to him and for all the purposes for which it is or reasonably may be used.</p> <p>The condemnation of private property for public use is not intended to benefit the landowner nor must the condemning party pay for advantages which- may accrue to it by reason of the location of its property.</p> <p>The commissioners appointed to assess damages in condemnation proceedings must be governed by their own judgment in determining the damages to landowners, though they may collect information in all the ways which a prudent man usually takes to satisfy his own mind concerning matters of like kind where his own interests are involved.</p> <p>Where under the statute (L. 1905, eh. 724, § 42, as amd.) relating to acquiring an additional water supply for the eity of New York and providing that, under certain conditions therein stated, the owner of an established business on June 1, 1905, directly or indirectly decreased in value by reason of the acquisition of his land, shall have a right of damage for such decreased value and that the board of water supply may agree with him r to the damages and in case of disagreement they shall be de4 mined in the manner provided by the statute for ascertaining the value of real estate taken, commissioners are appointed solely for the purpose of determining the value of the real estate taken, or the injury or depreciation of the real estate injured and not taken, such commissioners have not jurisdiction to fix the damages for loss or decrease of business; and testimony offered in behalf of the claimants, as to the gross receipts of business and net income from business conducted upon the parcels of land proposed to he taken, is properly excluded. Such damages must he ascertained and fixed by a separate commission.</p> <p>The petition in the proceedings describing only real estate, evidence as to damages to parties who were still doing business thereon, for loss to personal property not proposed to be taken, or for loss or decrease of business was properly excluded.</p> <p>The land condemned having been examined by the commissioners, the fact that in some instances the structural value of the buildings and erections as testified to by both parties, added to the city’s value of the land, was greater than the award will not justify setting it aside upon the ground that due weight was not given to the evidence as to the structural value; and, in such ease, all structures being part of the realty, a separate report as to the value in each instance was unnecessary.</p> <p>No separate report on quarry property contained on or in the land proposed to be taken was necessary, as, if unquarried, the stone was real estate, and, if taken out of the quarry, was personal property and not taken by the city; nor can there be any claim for the loss of the established quarry business or a decrease in its value, as the quarry was taken and compensated for as real estate.</p> <p>Affidavits of landowners as to the relative value of distinct parcels of land proposed to be taken are not competent evidence before the commissioners to assess the damages and will not be considered by the court upon motion to confirm the report of commissioners.</p> <p>The provision of the statute (L. 1905, ch. 724, § 3, as amd.), tending to limit the site for a reservoir to a territory which includes the lands affected by these proceedings is a restriction upon the city of New York and no restriction whatever upon the landowners and does not preempt the proposed Ashokan reservoir site for the use of the city of New York.</p> <p>In proceedings to condemn land for the said Ashokan reservoir site for the purpose of procuring an additional water supply for the city of New York, evidence as to the availability and adaptability of the property for reservoir and water supply purposes is properly excluded as being too speculative in view of the vast-combination of interests required to reduce such availability to practicability and the commissioners having exercised the right in determining the damages, to take into consideration the admission in the petition upon which the condemnation proceeding was instituted of the fact sought to be established by the evidence -rejected.</p> <p>A motion to reopen the ease, made to the commissioners after the condemnation proceedings had been closed and before they reported, is addressed to their discretion with the exercise of which the court will not interfere unless the same has been abused.</p> <p>An award made in condemnation proceedings will not be set aside upon the ground that it is excessive or inadequate, unless it is palpably so or unless it appears that the commissioners adopted an erroneous principle as to damages.</p> <p>Where in condemnation proceedings the portion of land left to the- owner is without access to any highway, the measure of damages to the -owner is the difference in value between -the value of the entire property as it was before the taking and the value of the portion left -to him, taking into consideration any injury done thereto by isolation from the highway.</p> <p>Where by said statute (L. 1905, eh. 724, § 3-5, as amd.) the city of New York was required to build and construct such highways and bridges as might be -made necessary by the construction of -any reservoir under this act and to repair and forever maintain such additional highway bridges, and a map filed in the condemnation proceedings shows a proposed road which it is claimed the city means to construct along property not taken, evidence, that if there was a public highway running along that portion of land not taken its value would he much greater than was testified to in the condition in which it would be left by the taking of the parcel actually taken, is inadmissible in view of the uncertainty as to when, if ever, the road will be made and because, in the absence of a provision in the statute that a road should he made around the taking line of the reservoir, the city might conclude to put it elsewhere.</p>

<p>Eminent domain: Measure of compensation — Compensation for improvements on lands — Structural value of buildings: Condemnation proceedings — Admissibility of evidence — Structural value of buildings.</p> <p>In proceedings for the condemnation of real property for a .public use, evidence as to the structural value of the buildings thereon, that is, the cost price at the time of condemnation of the different materials composing the several buildings, with a discount for depreciation from use, and the cost of the labor, architect’s fees and other like expenses in erecting them, is not competent for the purpose of determining the compensation which ought to be made to the owner; and the exclusion of such evidence by the commissioners is proper and does not form a ground for setting aside their award.</p>

<p>Application under the provisions of the Primary Election Law to review the action of the hoard of inspectors of the third tvard of the city of Lookport at a primary election held in that city.</p>

<p>Habeas corpus proceedings.</p>

<p>Habeas corpus proceedings.</p>

<p>Officers — Privileges, powers and liabilities — Criminal liability — Oppression.</p> <p>• Where a police officer entered a saloon and, without any provocation or justification, pointed a pistol .at a woman who was there and called her vile names and detained her against her will and committed acts whereby she was injured, the officer is guilty of oppression under section 556 of the Penal Code.</p>

<p>Parent and child — Custody and control of child — Eight of parent as against third person.</p> <p>The question whether a child shall be restored to the custody of its parent who has once voluntarily parted with it, is a question in the determination of which the paramount consideration should he the welfare of the child.</p> <p>Where a mother placed her daughter when about nine months old in the custody of a man and his wife who kept house and cared for and educated the child until she was nearly eleven years of age and during that period sustained toward her the relations of parents to a child, while the child's mother seldom visited her, nor contributed materially toward her support, nor demanded, her custody; and where the child, when brought before the court upon a writ of habeas corpus sued out by her mother, declared her affection for and attachment to those who had cared for her and deliberately and positively and with much feeling, insisted upon being allowed to continue living with them, the court will not take the child from their custody and commit her to the care of her mother for the pui-pose of enabling the mother to take her to a distant State, although there is no evidence that the latter is unfit to have the custody of her child.</p>

<p>Motion to compel a special guardian to pay over certain moneys in his hands.</p>

<p>Intoxicating liquors: Surrender and transfer of license, etc.— Surrender and rebate — Consequences of violating § 31: Criminal prosecution — Punishment — For violating § 31.</p> <p>The only punishment of a person not a certificate holder who violates section 31 of the Liquor Tax Law is by fine and imprisonment.</p> <p>Where a person, not a certificate holder, violates section 31 of the Liquor Tax Law and is convicted thereof and sentenced to pay a fine or suffer imprisonment and, after said violation and before his conviction, applies for and obtains a liquor tax certificate permitting him to traffic in liquors at another place and after his conviction assigns the certificate, with a power of attorney authorizing the assignee to surrender it for cancellation, the said violation and conviction of the person to whom the last mentioned certificate was issued will not work a forfeiture of his right or ■that of his assignee to a rebate on the surrender and cancellation thereof.</p>

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

<p>Intoxicating liquors — Prohibition of traffic in certain localities — Prohibition within certain distance of church — What is a church.</p> <p>Where, after a liquor tax certificate permitting the person to whom it was issued to traffic in liquor upon certain premises was revoked and cancelled by the court because of the failure to procure the requisite consents from dwelling-house owners, the main entrance to the saloon where the traffic was carried on was changed from Fifth avenue to 76th street, on the corner of which streets -the saloon was situated, by continuing the show windows on each side of the main entrance on Fifth avenue, which consisted of large double doors, and by using a small side door on 76th street as the only entrance, thus bringing the entrance outside the statutory limit from a church, and it appears that the wind-ow extension is but a temporary closing of the former entrance and a mere evasion of the law, -the applicant is not thereby excused f-rom obtaining the consent of the church.</p> <p>Where the parlor floor -of a building erected for a -dwelling-house is used for the services of a -church and Sunday school, while the pastor or minister in charge lives with his family on the second floor, keeping house with the usual accommodations and conveniences for that, purpose, and the third floor is occupied by a woman, who more -or less looks after the work to be done on the premises, with her children, such building is not used exclusively aa a church within the meaning of the Liquor Tax Law.</p>

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

Action by the Eden Musee American Company, Limited, against one Bingham, individually and as police commissioner of the city of New York, to restrain defendant and the police force, of the city of New York from interfering with the exhibition of plaintiff's figures, curios, etc., on Sunday. On motion for the continuance of a preliminary injunction pendente lite.