Volume 58 — New York State Reporter

<p>1. Pleadings—Demurrer.,,</p> <p>Demurrer will lie to each of two causes of action, if, upon either of them plaintiff may recover against some of the defendants, though they are both stated in one count.</p> <p>2. Corporations—Mortgages.</p> <p>Judgment creditors cannot take advantage of the omission of the written assent of the requisite number of stockholders to the execution of a corporate mortgage.</p>

<p>Appeal from an order continuing an injunction pendente Hie.</p>

<p>Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.</p>

<p>Easement—Extent.</p> <p>An easement, which consists of the privilege of passing over the premises, gives no right to erect any permanent structure thereon.</p>

<p>Negligence—Street Railroads.</p> <p>It is not negligence for a street-car company to run its cars on its track after the erection of elevated railroad columns in the street near such track.</p>

<p>Appeal from a judgment entered in favor of the plaintiff, and from an order denying a motion for a new trial.</p>

<p>Appeal from a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial.</p>

<p>Appeal from an order denying a motion to vacate an attachment.</p>

<p>1. Attachment—Sureties.</p> <p>In an action on an attachment bond, an allegation in the complaint that the attachment was discharged, is surplusage.</p> <p>2. Sam:e—Defense.</p> <p>The sureties cannot defend upon the ground of any irregularity in the attachment proceedings.</p>

<p>Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.</p>

<p>Appeal from interlocutory judgment, entered on demurrer^ and from judgment, entered on the pleadings.</p>

<p>1. Cabbiebs—Animals—Negligence.</p> <p>To excuse the carrier from liability, it must not only appear that the injury arose from the viciousness, unvuliness or restiveness of the animal, but also that the carrier has been guilty of no negligence causing the loss.</p> <p>2. Jurisdiction—Waiver.</p> <p>The question of jurisdiction'is deemed to be waived, where the defendant duly appears and answers, but does not plead want of jurisdiction,</p>

<p>Pleadings—Pboof.</p> <p>A party, whether plaintiff or defendant, must prevail according to the case made by his pleadings, or not at all.</p>

<p>Motion by the plaintiff for a new trial made on the judge’s minutes on the following grounds :</p> <p>First. That the court erred in charging the jury, at the request of the defendant’s counsel, that no force was used in removing the plaintiff from the defendant’s street car.</p> <p>Second. That the court erred in charging that the jury, in determining the question involved, might take into consideration the fact of the omission of the plaintiff to testify on the trial.</p>

<p>Certiorari to review proceedings of commissioners.</p>

Demurrer to complaint on the ground that the complaint', does not state facts sufficient to constitute a cause of action.

The personal property of the relator William L. Mercer was assessed $23,940 ; the personal property of the relator Andrew GL Mercer, $38,700, and that of the relator Philip M. Kendig, $11,025.

<p>Partnership—Lease.</p> <p>A provision in a lease that the landlord take an additional sum, if it arises, not as profits of an enterprise in which he joins with the lessee, but as rental compensation, contingent and not absolute, does not make him liable as a partner to third persons who deal with the lessee.</p>

<p>1. Divorce—Review.</p> <p>Upon a motion to confirm the report of a referee in an action for divorce, the court will not consider the evidence, where the decision is. against a divorce.</p> <p>2. Same—Referee's decision.</p> <p>Where the issues have been fully and fairly tried before a referee, his decision should stand as a guide for the court in rendering judgment, unless some unjust, inadvertent or unwise ruling appears, which tends to destroy the safeguards which the court throws around the indissolubility of the marriage tie.</p>

Motions by the relators to strike from the returns to the writs of certiorari in these matters certain statements claimed to be improperly inserted therein.

<p>1. Divobcb—Sup. Ot. bulb 73.</p> <p>Supreme court rule 73 applies only tocases of default in actions for-divorce.</p> <p>. 2. Same—Rebebes.</p> <p>In a contested action for divorce, the court may designate a referee from' the names suggested by counsel.</p> <p>3. Same—Waives.</p> <p>In the absence of collusion or fraud, plaintiff waives an irregularity in-the mode of selecting the referee in such action by accepting the benefit of an order postponing the cause over the term by reason of such reference.</p>

<p>1. Will—Construction—Suspension.</p> <p>A devise is void if the power of alienation may, in either of two contingencies or by any natural contingency, be suspended for more than two lives.</p> <p>2. Same—Whole scheme void.</p> <p>When the essential scheme of the testator is destroyed by the invalidity of a part, the whole consummation of the scheme falls to the ground.</p> <p>3. Estoppel—Election.</p> <p>When rights have been obtained, either of possession or of property itself, by force of a voluntary act, an inconsistent claim cannot afterwards be maintained under the doctrine of estoppel.</p>

Application by the executor of the estate of Jane 0. Yan, Schaick, deceased, for instructions from the court in regard to the payment of certain assessments levied by the city of Albany against property of the deceased in her lifetime.

<p>1. Contempt—False pleading.</p> <p>The interposition of a false verified answer, which impedes the rights of the plaintiff, is a contempt of court.</p> <p>2, Same—Fine.</p> <p>Where, but for such act, the plaintiff would have made his judgment, the court will impose upon defendant a fine equal to the face of such judgment.</p> <p>3. Pleading—Answer—Corporation.</p> <p>Denial of knowledge sufficient to form belief as to allegation of plaintiff's incorporation, is not sufficient to put him to proof of the existence of the corporation.</p>

<p>Deposition—Examination before trial.</p> <p>Unless the court abuses its discretion, an order denying amotion for the examination of plaintiff before trial will not be disturbed.</p>

<p>1. Elevated bailway—Injunction.</p> <p>The courts will not enjoin the operation of a public work, executed under legal authority, on the ground that a private right has been interfered with, which cannot be compensated for in money because it has no pecuniary value.</p> <p>3. Same.</p> <p>There is no ground for such action, if the resulting benefits more than compensate for the inconvenience which the improvements have caused.</p>

<p>1. Taxes—Chap. 729 of 1872.</p> <p>The board of assessors, acting- as such under chap. 729 of 1872, is not required to take a separate oath of office in a proceeding thereunder.</p> <p>2. Same—Statement.</p> <p>The statement, required by this act, is only a statement of the gross amount of the damage, and that such amount was to be awarded.</p> <p>8. Same—Cobpobation counsel.</p> <p>It is not error for the assessors to call upon the corporation counsel for advice as to the manner in which they should perform their duties or that one of his assistants appeared before them and advised them.</p> <p>4. Same—Damage.</p> <p>The relator is to be compensated as the owner of the building and not as the owner of the land.</p> <p>5. Same.</p> <p>The damages caused by the changes of the grade and plan of .improvement, and not by all the changes from the original grade, are to be compensated for.</p>

<p>Appeal from supreme court, general term, first department. Action by Henry 0. Sherburne against Edward A. Taft and others for an accounting of the proceeds of sale of express company stock.</p>

<p>Motion to strike out answer admitting claims of plaintiff and to vacate judgment or foreclosure and sale.</p>

<p>1. Appeal—Printing- papers. ,</p> <p>The special term has no power to dispense with the printing of any papers which are to be used on the argument of an appeal from an order on a non-enumerated motion.</p> <p>2. Same.</p> <p>If the special term may dispense with the printing of papers, which have been submitted to it upon the hearing of a motion, such power must be very sparingly exercised, and only in cases where there can be no reasonable difference of opinion as to the materiality of the papers in question.</p> <p>3. Same.</p> <p>The printing may be dispensed with where the papers, for the purposes of the appeal, will be wholly useless and unnecessary.</p>

<p>1. Will—Construction—Suspension.</p> <p>There is nothing in the statute against perpetuities which forbids the creation of alternate limitations, or periods during which the power of alienation and ownership shall be suspended, in case the limitation or the period of suspension, which actually takes effect or is adopted, does not of itself offend against the statute.</p> <p>2. Same—Trust.</p> <p>A trust to collect the rents, income, and profits of real estate, and, after paying legacies, etc., to discharge mortgages, is valid.</p>

<p>Taxes—Personal property ot decedent.</p> <p>Personal property of an estate, delivered, by concurrence of all the executors, into the exclusive custody and control of two of their number, and actually held and kept within the county of the latter’s residence, is; assessable in such county, though the other executors reside in different counties.</p>

<p>Action in equity to enforce payment of alimony.</p>

<p>1. Insurance—Benefit society—Action.</p> <p>An administratrix, as quasi trustee for herself as beneficiary, can maintain an action on a-life insurance policy.</p> <p>2. Same—Trust fund.</p> <p>Honey due on a policy in a mutual benefit insurance society is in the nature of a trust fund, and is not an asset of the estate accessible to creditors.</p>

<p>1. Evidence—Parol.</p> <p>An oral agreement, which does not contravene the terms of the written instrument and is only an incident to the chief purpose of the contract, is binding upon the parties.</p> <p>2. Power of attorney—Incidental powers.</p> <p>Every delegation of power, whether it is general or special, express or implied, carries with it, as an incident, the power to do all those, things which are necessary, usual, reasonable and proper to he done to effectuate the purpose for which the power was created.</p> <p>3. Specific performance—Extension of time.</p> <p>A court of equity will hold open the case to enable the vendor to perfect the title, which at the time of the tender of the deed made in due season and in good faith, he believed to be sufficient, in the absence of objection to its sufficiency at the time of the tender.</p>

<p>Actions to foreclose mechanic’s liens.</p>

<p>Motion by defendants for a new trial on a case and exceptions.</p>

<p>Appeal from order of special term sustained a demurrer, and from the interlocutory and final judgments entered thereon.</p>

This is an application to a justice of the supreme court, under § 88 of the “ Election Law,” chapter 680 of the Laws of 1892. The petitioner, James H. Foley, has been nominated for the office of town clerk in the Town of Watervliet.

<p>1. Town officers—Oath of office—Filing.</p> <p>An attempt by a town clerk to file his constitutional oath of office within eight days after it is taken, is a sufficient compliance with the statute.</p> <p>3. Office—Books and papers.</p> <p>When a person produces, a certificate from the proper election officers, of his election to an office, and gives the necessary undertaking where one is required by law, he is entitled to the delivery of the books and papers pertaining to such office.</p> <p>3. Same—Quo warranto.</p> <p>A person claiming title to an elective office in opposition to a certificate of election, has not ordinarily the right to an opportunity to establish his title in proceedings of this character, but is compelled to resort to quo warranto.</p>

Appeal by defendant from judgment entered on verdict of jury in favor of plaintiff, and from order denying motion for new trial.

Application by plaintiff for a new trial upon exceptions ordered to be heard in the first instance at general term, in a case where a verdict was directed in favor of the defendant.

<p>Appeal from a judgment of the sixth judicial district" court of the city of New York.</p>