Volume 59 — New York Miscellaneous Reports

<p>Motion to vacate an order of publication in an action against a foreign corporation.</p>

<p>Motion to set aside service of summons.</p>

<p>Penalties — Actions for penalties — Pleading — Complaint — Manner of stating separate causes of action.</p> <p>Pleading — Complaint or declaration — Manner of stating separate causes of action — Separate penalties.</p> <p>In an action to recover penalties for alleged violations of the Agricultural Law (L. 1893, ch. 338) in the sale of milk, the facts as to the sale of each can of millc need not be separately stated as a cause of action.</p>

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

<p>Motion to set aside the verdict in an action for false imprisonment.</p>

<p>Landlord and tenant — Extensions, renewals, etc.— Option to renew and election — Notice of intention to renew — Renewal effectuated by notice.</p> <p>A covenant of renewal in a written lease does not call for the execution of a new lease for the further term in order to hind the parties.</p> <p>Where a written lease for five years contains a covenant for a further lease for six years at an advanced rent, provided the tenant gives notice of his desire to have such lease, and the tenant gives the prescribed notice and remains in possession and pays the advanced rent, an extension of the original term is effectuated and constitutes the “ further lease ” mentioned in the covenant.</p>

<p>D-emurrbr to a separate defense contained in the answer of the defendant Bleeher, on the ground that the same is insufficient in law upon the face thereof.</p>

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

Demurrer by the defendant L. 0. Stewart & Co. to the amended complaint upon the ground that it does not state facts sufficient to constitute a cause of action.

<p>Demurrer by defendant to plaintiff’s complaint.</p>

<p>Principal and surety — Eights and remedies of surety against principal— Set-off against principal.</p> <p>Where a person deposits with a surety company a sum of money to protect it against' liability as his surety on a certain bond for any untoward act he may commit, and the same person afterward takes out an excise bond from the same surety company and, after having forfeited the latter bond, assigns to a third party his right in the money deposited with the surety company as indemnity for the former bond, in an action by the assignee to recover the deposit, after liability on the original bond has ceasedj the surety company may offset the amount of its liability upon the excise bond, for which a judgment has been recovered against it, against the claim of the assignee to the money deposited.</p>

<p>Joinder of causes of action — What causes of action may be joined — Action for contribution with creditor’s suit.</p> <p>Creditor’s suit — Conditions precedent and necessity of first exhausting legal remedies — Necessity of first obtaining judgment, etc.— Judgment as condition precedent.</p> <p>Subrogation—Right of joint debtor — Distinguished from right to contribution.</p> <p>Where a judgment was recovered against all the members of a Lloyds insurance company upon a policy of insurance and one of them paid the entire judgment and costs and thereafter assigned his right to contribution from the other members, the assignee cannot unite a cause of action against the other members for contribution with a claim in the nature of a judgment creditor’s bill to set aside an alleged fraudulent conveyance made by one of them; and the complaint in such an action is also demurrable, on the ground that it does not state facts sufficient to constitute a cause of action, in that it fails to allege the recovery of a judgment and the issue and return of an execution against the member who is claimed to have made the fraudulent transfer.</p> <p>When the plaintiff paid the original judgment he did not become subrogated to the rights of the judgment creditor, but the</p> <p>judgment was satisfied and extinguished and the right to enforce it was forever gone.</p> <p>Plaintiff’s right to contribution stands on different grounds and does not depend upon the doctrine of subrogation.</p> <p>The necessity for the recovery of a judgment against the member alleged to have made a fraudulent transfer of his property and the return of an execution against Ms property unsatisfied, is not to he dispensed with because of the impossibility of issuing an execution against him on the original judgment after the plaintiff had paid it.</p>

<p>Action for the reformation of a judgment rendered by the Municipal Court of the city of Few York. Demurrer to the complaint for insufficiency of the facts alleged.</p>

<p>Sales — Remedies of purchaser Recoupment and counterclaim — Breach of warranty as counterclaim — Where parties contracted for exclusive remedy.</p> <p>Upon the sale of personal property with an express warranty as to its condition, the vendee, upon a breach of the warranty, has two remedies: (1) he may rescind, return the property and</p> <p>recover what he has paid, or (2) he may retain the property and recover as damages the difference between the actual value and what the value of the property would have been if it had been as warranted.</p> <p>Where, however, the contract of sale provides that if, at the expiration of thirty days, it is found that the guaranty has not been complied with, the purchaser will remove the materials constituting a furnace for steam heating, which was the subject of the sale, holding the same subject to the order of the seller, and no payment shall be made, there is a contract for a different and inconsistent relief in the event of a breach of the express warranty, which supersedes the ordinary remedies; and, where the buyer does not pursue this remedy but leaves the furnace in, and makes a payment on account of it, and continues to use it, and the seller files a lien therefor and begins a foreclosure thereof, the buyer may not counterclaim for damages for breach of the warranty, but the seller is entitled to foreclose his lien.</p>

Action to recover balance of salary alleged to be due the plaintiff as a teacher in the public schools of the city of New York.

<p>Issues of law upon demurrer to complaint for defect of parties defendant.</p>

<p>Demurrer to complaint.</p>

‘Action for the specific performance of a testator’s contract to give plaintiff a part of his residuary estate. The opinion states the case.

<p>Wills — Interpretation and construction — General rules — Construction to sustain validity — Will not warrant departure from intent.</p> <p>Suspension of power of alienation — Validity of particular future estates — Creation of more than two life estates.</p> <p>The court, in the interpretation of a will, cannot be deterred from arriving at the . intention of the testator by the effect that proper construction may have upon it.</p> <p>Where a will creates a trust in favor of the testator’s wife for life, and after her death in favor of his brother and sister In equal shares each for life, and upon the death of either in favor of the survivor of them for life, with remainder over to a nephew and a niece in fee, the will violates the statute against perpetuities; and the trusts are void as is also the remainder limited thereon to the nephew and the niece.</p>

<p>Wills — Interpretation and construction: Terms defining quantum or duration of estates or interests — Rules and implications — Life estate with power to use principal: Terms defining the nature and quality of estates or interests — Fiduciary or individual, legal or equitable, etc.— Trusts implied; Implication where trust would be invalid.</p> <p>Charities — Statutory restrictions as to gifts — Restriction as to proportion of donor’s estate — Computation to determine excessiveness.</p> <p>A devise to testator’s wife of Ms entire estate for life with an absolute power of disposal of the income and so much of the principal as she may deem necessary for her comfortable sustenance and support does not constitute an absolute gift in fee simple.</p> <p>Where, upon the death of testator’s wife, the remainder of the estate was devised to Ms executors in trust to convert the same into money and out of the proceeds to set apart and invest a certain sum, the income thereof to be paid to testator’s daughter for life and, in the event of her death without issue, the principal to be paid to the trustees of a foreign college having capacity to take bequests, to be held in one fund to be known as the Bookstaver fund, the principal thereof invested and the income applied as the trustees of the college might deem best, such provisions cannot be construed as raising a trust and the suggestion that the gift shall be kept in a fund to be known as the Bookstaver fund was not intended and will not be permitted to limit or qualify the absolute gift which did not offend the rule against perpetuities.</p> <p>The portion of the corpus of the estate which might be applied to the widow’s support during her lifetime, in addition to the income, being uncertain, and as, until her death and the decease of her daughter, it will be impossible to ascertain what portion of the estate, if any, would ultimately go to the college, a computation, for the purpose of fixing the amount beyond which it would not be permitted to take, will not be made, as, if the bequest to the college should exceed the statutory limit, the excess would necessarily be treated as undisposed of property and distributed accordingly.</p>

<p>Wills — Interpretation and construction — Designations and descriptions of persons, etc.— Rules and implications — Children.</p> <p>The word “children,” in its primary significance,' means descendants in the first degree and will not be construed to include grandchildren, in the absence of satisfactory evidence that testator so intended.</p> <p>Where the residuary estate of a testator, survived by a widow and six children, was to be held in trust for the widow and upon her death to be divided into as many shares “as nearly equal as may be as I may have children living at the time of the decease of my said wife,” and, upon the decease of any of said children dying without lawful issue, the shares set apart to any child so dying were to be divided among testator’s children "then surviving” share and share alike, and all of the children survived the widow, the share of a son of testator, who died without issue after the death of a brother and sister each leaving issue, goes to the surviving children of the testator to the exclusion of his grandchildren.</p>

<p>Action for judicial construction of the last will and testament of Peter Keese, deceased.</p>

<p>Witnesses—Fees — Expert witnesses.</p> <p>Implied contracts — Contracts implied in fact — Implication of contract of service—Fees of expert witness.</p> <p>Although it is the theory of the law that everyone owes to the public, in the interest of justice, the duty of giving testimony as to facts within his personal knowledge, the law regards technical knowledge as the capital of the person possessing it and does not go to the extent of obliging a person to give technical expert testimony without reasonable compensation.</p> <p>And where a person at the request of a litigant expends time and labor in making an investigation necessary to qualify him as an expert witness, in the absence of an express promise, the law implies a promise to compensate him therefor.</p>

<p>Municipal Courts — Nature and organization — Judges — Illness, absence or disqualification — Authority of another judicial officer, how established— Recorder of Kingston to act as city judge.</p> <p>Where under the charter of the city of Kingston the recorder is given the power to act as city judge in case of the latter’s illness, absence or relationship to the parties, the recorder’s power to act is dependent upon the existence of the facts which must be proved by competent evidence.</p> <p>And where, upon the return day of the summons in an action issued by the recorder as acting city judge, the defendant appeared specially and moved to dismiss the complaint upon the ground that the city judge was not disqualified, it became the duty of the plaintiff to show affirmatively the facts upon which the power of the recorder to act depended and the denial of the motion without proof of the facts was error.</p>

The appellant was found by the recorder of the1 city of Kingston, after a hearing, to be a “ disorderly person ” and sentenced to imprisonment in the Ulster County Jail for the term of five months. From that judgment this appeal was taken.

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

Appeal by defendant from an order of the City Court of the city of New York at Special Term requiring an election between certain defenses, etc.

<p>Appeal from an order of the Special Term of the City Court of the city of New York, granting a motion by defendants for an order directing plaintiffs-appellants to accept service of a certain proposed case on appeal.</p>

<p>Municipal Courts — Review — Judgments and orders «viewable — Order staying second action till costs of former paid.</p> <p>Costs — Payment and enforcement thereof — Staying further proceedings or actions till costs paid — Mot allowed in Municipal Court of the city of Mew York.</p> <p>Mandamus — Mandamus against judicial officers — Requiring inferior court to proceed.</p> <p>An order of the Municipal Court of the city of Mew York staying the plaintiff from proceeding with an action therein until the costs of a former action between the same parties are paid is unauthorized, but not appealable; but, if the trial court persists in refusing to permit the case to proceed to trial, the remedy of the plaintiff is by writ of mandamus.</p>

<p>Appeal by the defendant from an interlocutory judgment, rendered in favor of the plaintiff in the Municipal Court of the city of blew York, second district, borough of Manhattan.</p>

Appeal by plaintiff from a judgment in favor of defendant on plaintiff’s cause of action and upon a counterclaim interposed by defendant, rendered in the Municipal Cohrt of the city of New York, second district, borough of Manhattan.

<p>Appeal by the landlord from a final order, rendered in favor of the tenant in summary proceedings in the Municipal Court of the city of New York, tenth district, borough of Manhattan.</p>

<p>Consideration — Inadequacy or failure of consideration — Partial failure — Contract to assume debts of partnership.</p> <p>The right of a partnership creditor to recover upon the promise of one to whom the business and assets of a partnership were transferred in consideration of his assuming the debts of the firm is subject to the equities between the original parties thereto.</p> <p>An entire or partial failure of consideration for such promise is a defense; and, in an action thereon by a partnership creditor,</p> <p>defendant is entitled to prove that a considerable part of the stock of goods belonging to the firm had not been transferred to him though he had entered into possession and continued the business for about one year and had compromised with all the firm’s creditors except the plaintiff.</p>

<p>Appeal from a judgment of the Municipal Court of the city of New York, second district, borough of Manhattan, dismissing the complaint, rendered after a trial had before the court without a jury.</p>

<p>Appeal by the respective defendants from two judgments in favor of the plaintiff, rendered in the Municipal Court of the city of New York, ninth district, borough of Manhattan.</p>

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

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

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

<p>Appeal by the defendant from a judgment of the Municipal court of the city of Few York, seventh district, borough of Manhattan, rendered in favor of the plaintiff upon a trial had before the court without a jury.</p>

Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of. the city of New York, sixth district, borough of Manhattan, after a trial before the court without'a jury.

<p>Appeal from a judgment of the Municipal Court of the city of New York, seventh district, borough of Manhattan, rendered in favor of the plaintiff after a trial before the court and a jury.</p>

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

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

<p>Landlord and tenant — Rights, duties and liabilities in regard to premises — Incumbrances, taxes and assessments — Covenants and agreements as tó taxes and assessments — Water rents — Regular annual rent or charge — Meter rates.</p> <p>A covenant, by a tenant of premises in the city of New York, to pay “ the regular annual rent or charge ” assessed or imposed upon the premises, according to law, for water rents, obligates him to pay the charges for water consumed as shown by the water meter installed in the premises.</p>

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

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

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

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

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

<p>Negotiable instruments — Actions — Pleading — Complaint — Demand, presentment and notice.</p> <p>In an action on a promissory note, an allegation that due notice of protest was duly given to the defendants and each of them, is equivalent to an allegation that notice of presentment, demand, nonpayment and protest was given to the defendants.</p>

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

<p>Appeal from a judgment of the City Court of the city of New York, entered on the verdict of a jury, and from an order denying a motion for a new trial.</p>

Appeal by 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.

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

<p>Carriers — Carriage of goods — Limitation of liability — Mode of limiting liability — By receipt.</p> <p>Where an express company sent to the plaintiff’s residence at . his request for goods to be shipped to New Jersey and the plaintiff’s wife delivered to the defendant’s agent the goods and asked him for a receipt and he gave her a receipt limiting the liability of the company to $50 and it does not appear that the plaintiff’s wife disclosed the nature and value of the property to the ex-pressman, in the absence of any evidence of fraud or imposition, the plaintiff will be bound by the receipt, though the value of the goods is conceded to be $450.</p>

<p>Motion by defendant to set aside verdict and for a new trial, and motion by plaintiff for an extra allowance.</p>

<p>Motion to confirm referee’s report upon application for leave to issue execution against property.</p>

<p>Motioh to vacate order adjudging defendant guilty of contempt of court and for his discharge from custody.</p>

<p>Action by a broker to recover commissions for'leasing real property.</p>

<p>Carriers — Carriage of passengers — Liabilty for personal injuries to passengers — Protection of passengers from acts of fellow passengers, etc.— Duty to protect against fellow passengers.</p> <p>A carrier, after being notified of misbehavior and riotous conduct on the part of certain passengers likely to result in injury to other passengers, is bound to exercise the utmost vigilance to maintain order and to protect the latter from the violence which might naturally be expected from the misconduct of the offenders.</p> <p>Where certain passengers in a railway car conducted themselves in a riotous and boisterous manner and threw a shoe of one of their number about the car which struck the plaintiff in the face and injured her, and it appears that the attention of the guard had been called to this disorderly conduct and he had been requested to quell the disturbance, but that he made no attempt to subdue it, a verdict in favor of the plaintiff, in an action brought by her against the railroad company to recover damages for her injury, will not be disturbed.</p>

<p>Contracts — Interpretation of contract — Conditions precedent — Effect of condition precedent and when deemed to have been fulfilled — Agreement to pay money when funds are realized from certain sources.</p> <p>Deceit — Reliance on representations and inducement to act.</p> <p>Plaintiff brought an action to recover upon defendant’s alleged agreement, made at the time of the assignment by plaintiff to defendant of a claim for services against a decedent’s estate, that the defendant would, when he collected said claim, reimburse himself for loans or advances made to the plaintiff and would pay over to the plaintiff the balance of the assigned claim after satisfying said loans and interest. The complaint also contained allegations to the effect that the defendant and the representatives of the estate of the decedent were jointly interested in a claim based upon an award for lands appropriated by the United States for public uses; that the defendant, acting for himself and also as attorney for the representatives of the estate jointly interested with him, had collected the amount of the award and had successfully resisted adverse claims to the fund and had in his hands a large sum of money arising from said award. Held that the receipt by defendant of the moneys arising from the award, under the circumstances stated, was not tantamount to the collection of the claim assigned to defendant by plaintiff and, in the absence of any allegation in the complaint that the defendant had in fact collected said claim, the complaint failed to state facts sufficient to constitute a cause of action.</p> <p>In such a case, where the defendant alleges in his answer a subsequent absolute assignment by the plaintiff to him of the claim to which the agreement set up in the complaint related, a reply, by which plaintiff seeks to nullify the later assignment by alleging that it was obtained by fraud, but which does not allege that defendant intended any fraud nor that plaintiff was induced by any fraud to execute the assignment, is insufficient in law upon the face thereof.</p>

<p>Equity — Laches and acquiescence — Failure to diligently prosecute.</p> <p>Where one of the trustees of a charitable corporation began an action in 1886 to prevent its consolidation with a religious corporation, and. issue was joined in the action in 1888, and in 1890 it was marked on the calendar “ reserved generally,” and no further action was taken therein until 1907, when defendant moved to dismiss the complaint on the ground of plaintiff’s unreasonable neglect to proceed, which motion was denied on terms that were afterward modified on appeal; and where no attempt was ever made to vacate or reverse the order for consolidation, made in January, 1887; and where it appears that, in pursuance of such order, the religious corporation took over the property of the charitable corporation and has since administered the charity and collected and expended a large amount of money in continuing it, plaintiff’s laches in failing to diligently prosecute his action is a sufficient ground for the refusal of the court to intervene in his behalf.</p>

<p>Party walls — Contribution on use by nonbuilder — Liability of subsequent grantee of nonbuilder — Liability of intermediate grantee.</p> <p>Where one of two adjoining owners builds a party wall and the other agrees “for himself, his grantees, assigns and legal representatives that whenever he or they shall use the said party wall, he or they will pay to the party” building the wall $200; and the agreement further provides that “ the covenants herein contained shall apply to and bind the heirs, executors, administrators, grantees and assigns of the respective parties * * * and shall be perpetual and at all times construed into a covenant running with the land ”, the covenant runs with the land and binds the subsequent grantees of the covenantor.</p> <p>But the covenantor’s immediate grantee, whose conveyance was in terms subject to said covenant and who used the party wall, after he has in turn conveyed the property to another, subject to covenants and restrictions in former deeds, is not a necessary or proper party to an action upon the covenant and is not liable upon it.</p>

<p>Executors and administrators — Debts and liabilities of the estate — Personal liability of representative for debts of estate — Purchase from heirs of real estate when assets are deficient — When liability does not arise.</p> <p>Where the personal estate of a deceased person residing in this State is inadequate for the payment of his debts, and his only other property consists of lands in New Jersey, and the statutes of that State provide that the real estate of a decedent “ shall be and remain liable for the payment of his or her debts for one year after his or her decease and may be sold ”, etc., the widow of the decedent, who is also the executrix of Ms will, who seven years after his death takes conveyances from his heirs at law of the New Jersey lands and sells them, is not liable to a creditor of his estate, who has obtained a judgment against his executors, as a trustee of the proceeds of the decedent’s real estate for the benefit of his creditors, in the absence of knowledge on her part during the period of a year after the decedent’s death of the plaintiff’s claim, or proof of her neglect to take any proceeding authorized-' by the laws of New Jersey for the enforcement of the plaintiff's claim against such real estate during the statutory period.</p>

Motioh made by a party defendant to set aside sale in foreclosure and all proceedings subsequent to the death of another party defendant.

<p>Banking associations — National Banks — In general — Power to make contracts — To hire employee for specified period.</p> <p>A person employed by a national bank as a solicitor of business is not an officer of the bank, within the meaning of section 5136 of the U. S. Compiled Statutes, whom the board of directors can dismiss at pleasure.</p> <p>A contract to employ such a solicitor for a year is valid, and the bank is liable to the employee for his wrongful discharge.</p>

<p>Estoppel — Equitable estoppel and estoppel in pais — Facts creating estoppels — Clothing another with title or right — Investing tenant with possession of lease claimed to be escrow.</p> <p>Where a tenant is in possession of premises and there is a lease to her in writing, under seal, duly recorded, having more than three years to run at the time she executes a mortgage thereof, the landlords will not be permitted to claim as against the mortgagee that at the time of the mortgage the tenant was in possession under a subsequent oral lease and that the lease in writing had never been delivered but only placed in escrow upon conditions which the tenant had failed to perform.</p>

Action to recover the balance of salary alleged to have accrued under a contract of employment with the defendant. Demurrer for insufficiency of the facts pleaded to constitute a cause of action.

<p>Action for the foreclosure of a mechanic’s lien.</p>

<p>Negotiable instruments — Presentment and demand — Place of demand — Trust company’s main or branch office.</p> <p>Where a note is payable at a certain trust company in the borough of Brooklyn, presentation at the trust company’s main office in said borough is sufficient, though the maker’s funds are deposited in a branch office in another place.</p>

<p>Oeeditob’s action. The opinion states the ease.</p>

<p>Vendor and purchaser — Rescission — What constitutes rescission. Rescission of contracts — Conclusiveness of election to rescind.</p> <p>Where the attorney for the vendee, under two written contracts, executed simultaneously, for the sale of two parcels of real estate, claiming a defect in the title of one of the parcels, demands a return of the earnest money paid upon the execution and delivery of the contracts, and, later, the attorney, by letter, again demanda'hail, the earnest money and threatens suit therefor", tine action of the attorney constitutes a rescission of the a- ti on the part of the vendee; and the assignee, under n. subsr$i¡iíent assignment of the vendee’s contract rights, is on-y ent; ivied to a judgment for the amount of the earnest money ;<'¡»( the expenses of searching the title with interest and costs c'</p>

<p>Specific performance: Requisites of contract — In general; Actions — Time to sue and laches.</p> <p>Where defendant, the owner of forty-five lots of land, being unable to get ten dollars a lot, accepted from plaintiff, through defendant’s agent who was plaintiff’s cousin, an offer of three hundred fifty dollars for the whole property and a strip of land running along a highway, and there is no proof of fraud practiced upon defendant by the plaintiff or any person with whose acts he was chargeable, the plaintiff is entitled to a decree for specific performance of the contract as to the forty-five lots, although worth according to testimony considerably more than the purchase price.</p> <p>The delay in bringing suit until fourteen months after the right of action accrued was not sufficient to deprive plaintiff of his rights.</p> <p>There being no question as to the lands in respect to which the parties intended to contract, the fact that in the contract the land was described as being in Suffolk county, instead of Nassau county, did not prevent the granting of the relief.</p>

The action in which this motion is made is brought under section 2653a of the Code of Civil Procedure to determine the invalidity of the probate of the will of Ann Shea, deceased.

<p>Action for a construction of the will and for an injunction restraining the defendant executors from selling real estate and from selling securities, except so much thereof as may be necessary to pay debts, legacies and expenses of administration.</p> <p>The testator, John Watts de Peyster, died May 4, 1907, leaving a last will and testament, which was duly probated in the Surrogate’s Court of Dutchess county on the 13th day of May, 1907. He died seized of real estate of the value of about $260,000, and personal property in securities amounting in value to over $2,000,000.</p> <p>He bequeathed to various persons and corporations legacies amounting, in the aggregate, to about $380,000. By the residuary clause of his will he devised to his three granddaughters, Esther Estelle de Peyster Hosmer, Mary Justina de Peyster Martin and Carola Anna de Peyster Kip, all of the rest, residue and remainder of Ms estate, both real and personal. Testator’s will contained the following power of sale: “ I hereby confer full power of authority upon my</p> <p>hereinafter named executors, the survivors or survivor of them or whomsoever of them as shall qualify as such, to sell and convey at public or private sale, or mortgage or lease, as soon as they can do so to advantage after my decease, all my real and personal estate or so much thereof (except such real or personal property as is herein specifically devised) as may be necessary to enable them to pay as promptly as possible all the special bequests mentioned in, and obtain means to pay expenses and carry out the directions of this my last will and testament. And, furthermore, it is my will that my executors hereinafter named, or the survivors or survivor of them, shall use their own judgment and discretion in the selling, leasing, deeding and conveying my property, personalty and realty, by covenant against grantor deeds, excepting such property as I have herein specifically bequeathed or devised, after the payment by my executors of all bequests and legacies herein specified, and after the payment of the expenses necessarily incident to the settlement of my estate, to become a part of my residuary estate.”</p> <p>The executors, Joseph Andrews, Robert Watts, Jr., and Augustus de Peyster, claim that under this power of sale they have the right to sell all of the real estate of which testator died seized and all of the securities and other personal property, and out of the gross sum realized from the sale of such real and personal property it is their duty to pay the legacies, debts and expenses of administration, and turn the balance in cash over to the residuary legatees.</p> <p>On Hovember 14, 1907, the residuary devisees caused a notice in writing to be served on the executors to the effect that they, the residuary devisees, elected to take the real estate, as real estate, free and discharged from all powers of sale that the executors had under the will of said deceased.</p> <p>The residuary legatees also notified the executors in writing that they had elected to take in specie all of the personal estate and securities remaining in the hands of the executors after the payment of all legacies, debts and expenses of administration, and filed in the surrogate’s office of Dutchess county a notice to this effect, as required by section 2744 of the Code.</p> <p>John Hackett, the attorney for the plaintiffs, residuary legatees and devisees, alleges that the executors have no right to sell the real estate until the personal estate is first exhausted in the payment of debts, legacies and expenses of administration; and he also asserts that it is the plain intention of the testator that the securities belonging to the estate, after the payment of debts, legacies and expenses of administration, should be turned over to the residuary legatees in specie.</p>

<p>Appeal from a judgment of a justice’s court. The opinion states the case.</p>

<p>Indictment — Necessity of indictment — Right to have misdemeanor certified for prosecution by indictment.</p> <p>The provisions of section 1409 of the Greater New York charter, relating to a certificate by a judge authorized to hold a Court of General Sessions of the Peace in and for the county of New York that it is reasonable that a charge of misdemeanor committed within said city shall be prosecuted by indictment, place the burden upon the moving party to show that it is reasonable that the charge should be so prosecuted.</p> <p>To establish the reasonableness of such method of prosecution, it should appear either, first, that the case presents intricate and complicated questions of fact rendering a jury trial proper; or, second, that it presents difficult questions of law; or, third, that a property right is involved; or, fourth, that the decision may be far reaching in its effect and become a precedent which will regulate a matter of general interest; or, fifth, that the case is of exceptional character and that the defendant for some special reason cannot have a fair trial in the Court of Special Sessions.</p>

<p>Corporations — Liability for torts and criminal liability — Criminal liability— For manslaughter.</p> <p>A corporation cannot commit the crime of manslaughter, and a demurrer to an indictment of a corporation for that crime should be sustained.</p>

<p>Motion to amend a plea to an. indictment.</p>

<p>Babeas corpus proceeding. The opinion states the case.</p>

<p>Insane persons — Inquisition — Costs and fees — Upon finding of sanity.</p> <p>In proceedings for the appointment of a committee of the person and property of a lunatic, the finding of sanity deprives the court of any control over the property of the alleged incompetent, and the court has no power to charge costs of the proceeding against it.</p>

<p>Proceeding under the Liquor Tax Law by the State Commissioner of Excise to revoke and cancel a liquor tax certificate.</p>

<p>Intoxicating liquors — Granting license — To whom license granted — Conviction of agent or employee.</p> <p>The fact that an agent or employee of the holder of a liquor tax certificate was convicted of a crime committed on the licensed premises, for which the certificate was revoked, is not a ground, under subdivision 8 of section 17 of the Liquor Tax Law, for refusing the application, within a year thereafter, of the former certificate holder for a new certificate.</p>

<p>Proceeding under subdivision 1, section 28, of Liquor Tax Law. '</p>

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

<p>Wills — Interpretation and construction — Terms defining the nature or quality of estates or interests — Future interests and vesting, etc.— Gift of remainder on death of life tenant to children and to heirs of deceased child.</p> <p>Where a testator gave to his widow the use of the residue of his estate during life or until her remarriage, qnd, on the happening of either event, the residue to his children in equal shares, further providing that the child or children of any child of the testator who at that time might he deceased should take the share their parent would have taken, the testator’s children take a vested remainder in the residue of his estate and the share of one of them will pass to a receiver appointed in supplementary proceedings.</p>

<p>Application to vacate a third party order.</p>

<p>Supplementary proceedings — Order for payment or delivery of property— Order to apply property in general — Property subject to order.</p> <p>Execution against property — Property subject to execution — Deposits of money.</p> <p>Money on deposit in a bank is not subject to levy under an execution; and an order requiring a judgment debtor to apply moneys so deposited toward satisfying the judgment, pursuant to section 2436 of the Code of Civil Procedure, is proper.</p>

<p>Motion for order restraining expenditure of moneys and for other relief, after investigation of the financial affairs of said village, pursuant to section 3 of the General Municipal Law.</p>

<p>Motion to change place of trial.</p>

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

<p>Motion for a reargument of a motion for a new trial.</p>

<p>Carriers — Carriage of goods — Limitation of liability — Power of agent of shipper to bind him; Mode of limiting liability — Necessity of showing assent of shippper.</p> <p>Where plaintiff requested an express company to transport a trunk from her residence, the authority of her maid to deliver the trunk carries with it the power to stipulate the terms of the contract, unless the contrary is expressly brought to the knowledge of the carrier.</p> <p>But where, although at the time of the delivery of the trunk to the express company, a receipt was left with plaintiff’s maid containing a clause limiting defendant’s liability for loss or failure to deliver to fifty dollars, in an action for the nondelivery of the trunk based solely upon the defendant’s common-law liability, in which the plaintiff does not offer the receipt in evidence nor claim under it, proof by the defendant of the mere delivery of the receipt, without warning or advice of the nature of the paper or proof of a reasonable opportunity to inspect the paper by one capable of understanding its contents, does not establish a contract limiting defendant’s liability and a verdict for the plaintiff in excess of fifty dollars will not be reduced to that amount.</p>

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 Manhattan.

<p>Another action pending — Identity of causes of action—Not implied from identity of subject-matter.</p> <p>A stipulation that in a prior action between the same parties the subject-matter of a counterclaim in the present action was made the subject-matter of complaint, does not necessarily imply that the cause of action in the prior action was the same as the cause of action constituting the counterclaim.</p>

<p>Building and construction contracts — In general — Eights and liabilities as between contractors and subcontractors.</p> <p>Where defendant, who had a contract for the building of a hotel, made a contract with another for the iron and steel work, in which it was provided that, in case the subcontractor for any reason abandoned the work, the defendant might have without charge the use of the derricks and all other tools and appliances in the building, and plaintiffs, without knowledge of the subcontract, agreed with the subcontractor to furnish the iron and steel work on the hotel by a contract containing substantially the same provision as to the use of the derricks, etc., in case the work was abandoned; and where, upon the subcontractor’s failure to make payments to plaintiffs, they abandoned the work and defendant took.possession of their engine, derrick, tools and timber, they are entitled to recover the usable market value of their appliances detained from them and made use of by the defendant.</p>

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

Appeal by the plaintiffs from a judgment of the Municipal Court of the city of New York, seventh district, borough of Manhattan, in favor of the defendant, after a trial before the court without a jury, for the sum of fifty dollars and costs.

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

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

<p>Evidence — Relevancy — Intent, motive or understanding — Undisclosed motive.</p> <p>In an action to recover money deposited as margins for the purchase of cotton, the plaintiff may not testify as to why he ordered cotton to be purchased at .1180 and yet refused to accept a purchase at .1171; and the admission of the testimony, over objection, is error for which a judgment for the plaintiff should be reversed. Dayton, J., dissented on the ground that the appellant was not prejudiced by the error.</p>

<p>Appeal from an order of the City Court of the city of ¡New York denying a motion to vacate and set aside an execution, issued without leave of the court, and to cancel and discharge a notice filed pursuant to section 1252 of the Code of Civil Procedure.</p>

<p>Appeal by the plaintiff from an order of the Municipal Court of the city of Mew York, eighth district, borough of Manhattan, granting defendant’s motion for a new trial.</p>

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

<p>Associations — Membership — Liability of members for debts — Debts of association only; Actions against members — Evidence — Sufficiency.</p> <p>■Where, after the return unsatisfied of an execution issued upon e. judgment against the president of an unincorporated association, the judgment creditor brings an action against the individual members, he must allege and prove, not only the original judgment and the issuance and return of the execution unsatisfied, but also facts sufficient to make out the original cause of action against the association.</p> <p>Where the first action was brought upon a writing signed by the president of the association as an individual and bearing the seal of the association, the plaintiff, in the second action, must prove that the signature to the writing was authorized by the association in order to bind it.</p>

Appeal by the plaintiff from a judgment of the Municipal Court of the city of Mew York, first district, borough of Manhattan, in favor of the defendant, rendered after a trial before the court without a jury. •

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

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

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

<p>Landlord and tenant — Rights, duties and liabilities in regard to premises— Repairs, insurance and improvements—Duty to make repairs — Duty of tenant — Of part of building.</p> <p>Under a sublease of “ the building known as the Olympic Theatre, situate on Third avenue at or near 130th street, being the theatre property above the first story, with the staircase leading thereto from Third avenue and the box office on the first floor,” where there is a hotel in the building, on the corner, and the ground floor is used by a milroad company which owns the building and leases it to one who sublets the theatre, the lease of the theatre is a lease of part of a building and does not include the roof, nor impose upon the tenant the duty of keeping.it in repair.</p>

<p>Landlord and tenant — Rights, duties and liabilities in regard to premises — Repairs, insurance and improvements — Covenants and agreements as to repairs — By lessee.</p> <p>A covenant by the tenant of an entire building, used as an automobile repair shop, “ to make all necessary repairs and alterations necessary to the proper conducting of his business,” obliges the tenant to repair a sagging roof which has become unsafe; and he cannot claim a constructive eviction from the landlord’s failure to repair it.</p>

<p>Appeal from a judgment of the Municipal Court of the city of Mew York, twelfth district, borough of Manhattan, in favor of the plaintiffs.</p>

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

Appeal by the landlord from a judgment and final order in summary proceedings, rendered in favor of the intervening tenant, Helen Wolf, in the Municipal Court of the city of New York, seventh district, borough of Manhattan.

Appeal by the tenant from a final order made in a summary proceeding in favor of the landlord, in the Municipal Court of the city of New York, first district, borough of Manhattan,

<p>Appeal by the tenant from a final order in summary proceedings, entered in favor of the landlord in the Municipal Oourt of the city of New York, first district, borough of Manhattan.</p>

<p>Mechanics’ liens — Foreclosure — Judgment — Rendition of personal judgment — On failure to establish lien — Where no contractual relations exist.</p> <p>In an action to foreclose a mechanic’s lien, where the notice of lien is defective and it appears that the lienor was not the person with whom the owner contracted and no contractual relation is established between them, a personal judgment cannot he awarded in favor of the lienor against the owner.</p>

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

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

<p>Appeal by the defendant from an order denying a motion to set aside a judgment entered in favor of the plaintiff in the Municipal Court of the city of New York, first district, borough of Manhattan.</p>

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

<p>Municipal Courts — Procedure: Relief from default — Conditions:</p> <p>Costs — Taxation — By justices of Municipal Court of the city of New York.</p> <p>A justice of the Municipal Court of the city of New York has no jurisdiction to tax the costs in an action in that court, but the same must be taxed by the clerk.</p> <p>It is error for the justice to impose, as a condition of opening defendant’s default in such a case, the payment of an amount of costs thus illegally taxed by him.</p> <p>Nor can the justice impose as a condition of vacating the judgment in such a case any terms beyond the payment of costs not exceeding ten dollars and a deposit of the amount of the judgment, or an undertaking pursuant to section 256 of the Municipal Court Act.</p>

<p>Appeal by the plaintiff from an order of the Municipal Court of the city of Yew York, sixth district, borough of Manhattan.</p>

<p>Appeal by the plaintiff from a j'udgment in favor of the defendants, rendered in the Municipal Court of the city of New York, second 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 Mew York, second district, borough of Manhattan.

<p>Appeal from a judgment of the Municipal Oourt of the city of New York, seventh district, borough of Manhattan, in favor of the defendant, rendered after a trial had before the court without a jury.</p>

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

<p>Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of New York, fourteenth district, borough of Manhattan, after a trial before the court without a jury.</p>

<p>Contracts: Parties and persons by whom or against whom enforcible — In general — Contract with “A,” guardian of “ G Validity of contracts— Effect of invalidity or illegality — Recovery back of value parted with on illegal contract — Right of infant on attaining majority to rescind contract made with another for his benefit. Rescission of contracts — Return of consideration or benefits — When necessary.</p> <p>Where A. S., a mother, permitted her infant son G. S. to enter into a contract for the purchase of real property in her name, describing her as “ Guardian of G. S.,” though never having been appointed such guardian by any competent authority, the contract is the contract of the mother; and the son may not, upon attaining his majority, rescind such contract and recover back the money paid thereon, though the vendor knew the contract was made in the behalf and interest of the son.</p> <p>Nor will such rescission be effected without restoring what had been received thereunder; and a mere assertion by the plaintiff, in an action to recover the money so paid, of his willingness to deliver up the benefits and rights he has under the contract is not enough.</p>

<p>Intoxicating liquors — Local option — In general — Change of excise year after vote for no licenses.</p> <p>Where, at the regular town meeting in November, 1907, the electors of a certain town voted that no liquor should be sold in it, the right to sell liquor expired with the expiration of the excise year as it then stood, on the 30th day of April following; and the subsequent change of the excise year, by chapter 144 of the Laws of 1908, so as to begin on the 1st day of October, and the provisions contained therein for the extension of licenses until that date, did not apply to licenses in such town.</p>

<p>Eeturn to a notice of motion on petition for appointment of commissioners to inquire and appraise the compensation to be made to the owners of lands, taken for village water supply purposes.</p>

Motion by the relator for an order to punish Charles H. Judson, special deputy commissioner, etc., for contempt of court in neglecting 'and refusing to obey an order made by Mr. Justice Clark, June 2, 1908, whereby the said Judson, as special deputy commissioner, was commanded to grant the application of the said Edward J. Ames for a liquor tax certificate and to issue a certificate to him therefor.

<p>Application for an order directing the delivery of books and papers in pursuance of the provisions of section 2471a of the Code of Civil Procedure.</p>

<p>Summary proceedings. The opinion states the case.</p>

<p>Bonds — Breach — Defenses — Bond to secure performance of building contract — Sale by owner after breach.</p> <p>Damages — Liquidated damages — Liquidated damages or penalty —■ Bond given to secure performance of building contract.</p> <p>Where the owner of certain buildings sold them to one who agreed to remove them and all debris except the old mortar and cement of the buildings removed and the purchaser executed a bond to the owner with a surety in the penal sum of $1,000 conditioned for the faithful performance of the contract in so far as it provided for the demolishing and removing of said buildings, the giving of such bond does not liquidate the damages for the failure of the purchaser to perform the contract at ths amount of the penalty of the bond, but limits the recovery against the surety to that amount.</p> <p>A sale of the land by the owner, after the failure of the purchaser of the buildings to fulfill his contract, does not impair the rights of the owner under the bond given to secure performance c a the part of such purchaser, nor the liability of the obligors.</p>

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

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

Action to have a covenant contained in a deed, restricting the use of the premises therein described to church purposes only, declared invalid and to free the title of said premises from the incumbrance of such covenant. ■

<p>Trial of the issues of law arising upon a demurrer by the defendant The .¿Etna. Indemnity Company of Hartford, Conn., to a complaint in an action by a taxpayer against the surety on the official bond of the county treasurer of Broome county, alleging the payment by the county treasurer of the funds in his custody and possession illegally and without warrant of law and demanding judgment for an accounting and upon said accounting for judgment against the county treasurer and the custodian of public buildings and grounds upon whose warrants, orders or drafts the money was alleged to have been paid out with interest, and against the surety for the amount of the penalty of the bond and for other relief besides costs.</p>

<p>Jurisdiction — Jurisdiction of particular courts — Supreme and Circuit Court — Accounting by executors and trustees — When jurisdiction will be exercised.</p> <p>The Supreme Court, though possessing jurisdiction to settle by action the accounts of executors and trustees, is reluctant to exercise that jurisdiction unless special facts and circumstances exist, indicating that complete justice cannot be done in the Surrogate’s Court.</p> <p>But where the settlement of the accounts of executors and trustees involves the question of the validity of certain promissory notes of one of the residuary legatees which the Surrogate’s Court may be without power to determine, a sufficient reason appears to justify the exercise of jurisdiction by the Supreme Court to entertain an action to settle such accounts.</p>

<p>Foreclosure of mortgages on land — Foreclosure hy action and sale — Bight to foreclose — Default in payment of interest — Election that whole amount shall he due — Belief against default.</p> <p>Equity will relieve a mortgagor from the operation of a clause contained in the mortgage giving the mortgagee the right to elect that the whole amount of principal and interest shall he presently due and payable in case of default in the payment of interest for thirty days, where the mortgagor’s default was occasioned hy the appointment of temporary receivers of the mortgagor who were in possession of its assets at the time of default and during the thirty days thereafter.</p>

<p>Municipal corporations — Powers and exercise of governmental functions — Control of streets and waters and improvement of streets — Power to interpose to protect rights of abutting owners: Power to regulate use of streets by corporations having the right — Regulation or prevention.</p> <p>Statutes — Special, local or private statutes: What are — Acts relating to particular persons or subjects — Act incorporating power company though declared to be public: Subjects and titles—Requirement in general —■ Act granting special franchise to company incorporated by same act.</p> <p>The act incorporating the Economic Power and Construction Company is a private bill within the meaning of section 16 of article III of the State Constitution, although the powers thereby conferred are expressly declared in the act to be a public purpose and their use by the corporation a public use.</p> <p>The act does not embrace more than one subject although, in addition to effecting the incorporation of the company, it bestows upon it the franchise to use the streets and highways throughout the State, and does not contravene the constitutional provisions referred to.</p> <p>The Legislature having granted directly to the company the right to use the public streets of any city without the local consent, the municipality may not prevent such use; though it may, under its • general police power, regulate the manner of its exercise.</p> <p>Nor may the municipality interpose in behalf of abutting owners in whom the fee of the public streets is vested, but such owners must themselves seek redress for any invasion of their private rights.</p> <p>In an equitable action by the company for an injunction the court may protect the municipality in the exercise of its power to regulate the manner in which the company shall lay its pipes.</p> <p>Whether underground structures for the conveyance of steam heat and electric lighting and power constitute an added burden on the fee of the streets, qucere.</p>

<p>Insurance: Construction and operation of contract — Accompanying papers: Actions on policies; Pleading — Allegations as to cause of loss; Admissibility of evidence — Evidence to explain patent ambiguity.</p> <p>Where a policy of marine insurance consists of three papers, the first being the regulation form of the insurer bearing the names of the parties, subscription clause and date, but the descriptions of the voyage, subjects and steamers insured being "as per form attached ”; the second, attached to the first, being the more detailed printed form of the agents containing the usual clauses of a marine policy which are “ substituted for those of the policy to which it is attached”; the third, a typewritten paper attached to the second, containing the more intimate agreements by which the policy is molded to the circumstances, the three papers must be construed together as constituting the contract.</p> <p>Where the typewritten paper provides “ Lard, greases, tallow and packing house products of all kinds are insured hereunder — To pay particular average if amounting to three per cent., each tierce, barrel or package separately insured, * * * Underwriters agree to pay for loss in weight in excess of one per cent., on the entire shipment” and contains other clauses by which the plaintiffs are insured for transportation by land as well as by water and enumerates the perils by sea which the assurers are content to bear but specifies no risks by land insured against, an ambiguity appears upon the face of the policy as to the application of the agreement to pay for loss in weight in excess of one per cent, and it is competent for plaintiffs to allege and prove that it was inserted to protect plaintiffs from all loss by leakage and the wear and tear of the voyage in excess of that amount from whatever cause arising.</p> <p>In such a case, a complaint alleging a certain loss in weight in excess of one per cent, on the entire shipment, without specifying by what that loss was produced, is not demurrable on the ground that it does not state a cause of action.</p>

<p>Action for the foreclosure of a mechanic’s lien.</p>

<p>Motioe for a new trial on the minutes.</p>

<p>Actioh to adjudge and declare an assessment levied upon premises of plaintiffs null and void.</p>

<p>Action to recover for services as vice-principal of public schools in the borough of Queens, city of New York.</p>

<p>Negligence: Contributory negligence — Persons in street — Person struck by horse under saddle whose approach from behind was not heard: Actions — Evidence — Weight and sufficiency — Contributory negligence — Sufficiency of evidence where plaintiff is incompetent.</p> <p>In an action by the committee of an incompetent person to recover damages for personal injuries to the incompetent resulting in her incompetency, where it appears that the incompetent when walking northerly along a macadam pavement customarily used by pedestrians in the center of a public street without sidewalks, to reach the sidewalk of an intersecting street started to cross, diagonally, the easterly half of the street in which she was walking when a horse, also going northerly, galloping in the soft dirt of the street, was with its rider one or two hundred feet distant from her in a southerly direction; that the horse gradually approached her as she proceeded until when she was within eight or ten feet of the sidewalk the feet of the horse which was then about that distance from her struck a cobblestone pavement when she immediately quickened her steps, the horse turned in nearer to the curb to which she was hastening and struck her before she reached it; that the horse continued galloping all the while and a noise caused by boys beating on barrels might have prevented her from hearing the horse’s hoofs until they struck the cobblestones, the question of her contributory negligence is a question for the jury.</p> <p>The rules established in considering and disposing of the question of contributory negligence when the party injured is dead are applicable to a case where the injured party is insane and consequently unable to testify; and her failure for that reason to testify to the use of her faculties when she started to cross to the sidewalk, or during her progress, will not prevent a recovery where the facts and surrounding circumstances justify an allowable deduction or inference that the plaintiff exercised care.</p>

<p>Adulteration — Actions for penalties — Evidence — Admissibility — Admissions by agent.</p> <p>Evidence — Admissions — Admissions by representatives — Servants.</p> <p>In an action by the People of the State of New York to recover a penalty for the sale of adulterated milk, proof of a statement of defendant’s son, employed by him to sell milk, that a certain can of milk was not produced by defendant but was purchased of a creamery company is not competent as against the defendant to establish the facts stated.</p>

<p>Conspiracy — Civil liability: Particular conspiracies — To commit perjury: Pleading — In action for conspiracy to commit perjury.</p> <p>An action cannot be maintained for a conspiracy to do that which is not itself actionable.</p> <p>An action to recover damages for conspiracy to commit perjury and for giving false testimony cannot be maintained.</p> <p>Where the complaint in such action alleges that in consequence of the conspiracy an action brought by plaintiff had been dismissed and "by reason thereof plaintiff irrecoverably lost all his interest in his grandfather’s estate, but it is not alleged that plaintiff had no other witnesses, nor any other method of establishing his cause of action, or that no other witnesses were called for him, a demurrer on the ground that the complaint fails to state facts sufficient to constitute a cause of action will be sustained.</p>

<p>Judicial sales — Title and rights of purchaser — Liens and incumbrances — Contract by railroad company to maintain crossing.</p> <p>Railroads and railroad companies — Construction, equipment and maintenance —■ Restoring and maintaining highways — Contract between company and municipality — Validity; When it does not bind successor of company.</p> <p>The liability of a railroad company to keep and maintain a bridge carrying a public street across its tracks, under an agreement with the municipality, does not pass to another railroad corporation which purchases the property of the original corporation upon a sale pursuant to a judgment foreclosing .a mortgage executed by the original corporation before the agreement with the municipality was entered into and without any notice thereof, or any express assumption by the purchaser of such liabilty, or any provision to that effect in the judgment.</p> <p>Whether an agreement between a municipality and a railroad corporation to keep a portion of a public street in repair is valid, in view of the fact that the municipality is charged by law with the maintenance of the public highways within its limits and cannot delegate the duty to a railroad corporation, gwwre.</p>

<p>Street railways — Street railway companies, their franchises and right to use of streets — Franchise and right to use streets — License fees — On what computed.</p> <p>There may not be included in the gross receipts from which a street railway company, operating under a franchise from the city of New York, is under obligation to pay a franchise tax under section 95 of the General Railroad Law (L. 1890, chap. 565), receipts derived from its operation under trackage agreements- over tracks built and owned by other companies.</p>

Action to establish and enforce a lien in favor of the plaintiff against the interest of certain of the defendants in the trust estate held by the defendants William Jay and Egerton L.. Winthrop, Jr., as trustees.

<p>Action for the construction of a will. The opinion states the case.</p>

<p>Action to construe a will.</p>

<p>Indictment: ¡Requisites and sufficiency of the accusation-*■Statement of offense in general — Evidence not to be stated — What is evidence: Joinder and separation of counts and election — Nonjoinder of distinct offenses — What constitutes joinder of distinct offenses.</p> <p>Where an indictment charges the defendant with having procured a person to vote or offer to vote when he was not a qualified voter, it need not set forth in detail the acts or words by which he procures the person to illegally vote or offer to vote, the latter being matter of evidence.</p> <p>Where a series of acts is enumerated in a statute, the doing of either of which is made an offense, the enumeration of the entire series in an indictment does not involve duplicity.</p>