Volume 59 — New York State Reporter

Appeal by the plaintiff from an order of the special term, directing a re-taxation of costs and disallowing certain items taxed by the clerk.

<p>Contract—Specific performance—Title.</p> <p>Specific performance of a contract to convey real estate will pot be decreed, where the refusal to take title is based upon the fact that the walls of the house, contracted to be sold, encroach upon adjoining lands of other owners, and that the vendor cannot, for this reason, convey the title he haá agreed to transfer to the purchaser.</p>

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

<p>1. Appeal—Presumption.</p> <p>Where the proof is defective on some point which is capable of being, supplied, but no question is raised on the trial, the appellate court will assume that proof of the omitted fact was waived, or that the fact was conceded.</p> <p>2. Evidence—Fraud—Rescission.</p> <p>In an action to rescind a sale by reason of fraud, evidence of contemporaneous false statements by defendant is competent to show fraudulent intent.</p>

Action by administrator for rent accruing in lifetime of intestate, upon a lease purporting to demise her interest as dowress. Other necessary facts appear in the opinion.

<p>Insurance—Mutual benefit.</p> <p>Where a member of a mutual benefit insurance company revokes his designation of the beneficiary without making another, it will be treated as though none had been made.</p>

<p>COBFOBATIONS—STOCKHOLDER’S LIABILITY.</p> <p>A stockholder of an insolvent corporation cannot bring an action at law against another stockholder to enforce the liability imposed by § 10, chap. 40 of 1848.</p>

The defendants were building a station house, to be made of wood. The plaintiff was a carpenter. He was hired by the master mechanic. He went to the building, and was placed under the order of one Horn, who was the foreman of the working men there. Horn worked as a carpenter when not engaged as foreman. Besides Horn there were three journeymen upon the work. Materials from which to make tiebeams were sent to the building. Horn and another workman cut and fitted this material.

<p>1. Patents—Invalidity.</p> <p>The invalidity of a patent is available as a defense in a action for the purchase price on the ground of failure of consideration, but not in an action by a licensee to recover royalties.</p> <p>2. Same.</p> <p>An agreement to pay royalties as part of the purchase-price does not make the purchaser a licensee.</p>

<p>Appeal from a judgment in favor of the plaintiff.</p>

<p>1. Pleadings—More definite and certain.</p> <p>A motion to make a complaint more definite and certain will be denied, where, by stipulation in open court, the cause for the motion is removed.</p> <p>2. Same—Office of such motion. ’</p> <p>It is not the office of such motion to determine whether a pleading is demurrable.</p>

<p>Negligence—Question of fact.</p> <p>Where, in an action against a railroad for negligence, the evidence is conflicting as to whether the engineer, when he first saw the intestate on the track, could have stopped the engine in time to prevent the injury, the case should be submitted to the jury.</p>

<p>Evidence—Immaterial.</p> <p>Where the reversal of a judgment, restraining the transfer of the property and franchises of a railroad company, is based upon the ground that the complaint sought to restrain a transfer already made, evidence, on the second trial, tending to show the impropriety of such transfer is immaterial.</p>

Action to recover the value of property conveyed by plaintiff to the defendant under a contract for the purchase of certain machinery and goods from the latter by the plaintiff and two others. This contract provided that each of the purchasers should pay a proportionate share of the purchase price in satisfactory value, or by the conveyance of real estate.

<p>1. Parties—Corsequertial ihterest.</p> <p>A person, who has no interest in the subject of the action, but only in the question involved therein, is not entitled under § 452 of the Code, to be made a defendant.</p> <p>3. Same—Power oe special term.</p> <p>The special term has power to direct a person to be made a defendant, though not required to do so by said section, but should not grant the application where he has a fair opportunity to protect his interest without being made a party.</p>

<p>1. Divorce—Proof.</p> <p>In actions for divorce, courts must take such evidence as the nature of the case permits, whether circumstantial, direct or positive, and, weighing it with prudence and care, give effect to its just preponderance.</p> <p>3. Same—Innocent construction.</p> <p>The rule that, if the acts of parties are capable of two constructions, one innocent and the other not, the former is to prevail, is not applicable where a combination of circumstances appears, logically pointing to guilt with a potency excluding any other hypothesis.</p> <p>8. Same.</p> <p>The evidence, in this case, was purely circumstantial, but was deemed sufficient to warrant a decree of divorce.</p>

<p>1. Execution—Void.</p> <p>Ad execution issued on the day of, hut after, the debtor’s death is void. 3. Time—Computation.</p> <p>The law takes notice of fractions of a day when there are conflicting rights.</p>

Action to recover damages for personal injuries sustained from a collision with defendants’ truck, the truck being at the time in the custody and control of defendants’ driver, who carelessly or negligently drove it.

<p>Habeas CORPUS and certiorari to inquire into the cause of the detention of the relator. »</p>

<p>Trial by the court without a jury.</p>

Appeal by defendants from judgment entered upon a verdict in favor of plaintiff1 and from order denying defendants’ motion for a new trial.

<p>1. Pleadings—Admission.</p> <p>Admissions in pleadings are conclusive.</p> <p>2. Infants—Contracts.</p> <p>A transfer of real estate by infants is voidable by them and must be declared void on their application.</p> <p>3. Evidence—Age.</p> <p>The testimony of plaintiff as to his own age is competent.</p> <p>4. Execution—Redemption—Limitation.</p> <p>The owner of the equity of redemption has twenty years within which to bring an action to redeem.</p>

Bill filed by the plaintiffs, as judgment creditors, to set aside three judgments confessed by the firm of A. Munzer & Go., in fraud, as is alleged, of the plaintiffs and other creditors, and to set aside a transfer of book accounts on the same ground.

<p>Trial by the court without a jury.</p>

<p>New York Produce Exchange—Managers—Power of.</p> <p>The board of managers of the New York Produce Exchange has no authority to suspend a member on a complaint involving merely a breach of contract.</p>

<p>Appeal—Exceptions.</p> <p>The general term of the superior court may, in its discretion, grant & new trial, when counsel, by oversight, has not taken proper exceptions, and yet it is manifest that the justice of the case should protect the client.</p>

<p>Contract—Modification.</p> <p>Where the purchaser of goods to he manufactured requests the seller, after the time fixed for the delivery, to do his utmost to complete the goods, the contract is modified as to the time of performance.</p>

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

<p>Trial—Verdict subject to opinion of court.</p> <p>A direction of a verdict, subject to the opinion of the court at general term, is improper where there are exceptions on either side to the admission or rejection of evidence.</p>

<p>Insurance—Life—Condition—Proof of death.</p> <p>The affidavit of the attending physician of the deceased, if one of the papers constituting proof of death, must he taken to be true against the beneficiary, unless there is an explanation of a sufficient kind.</p>

<p>Appeal from a judgment in favor of plaintiff.</p>

<p>Appeal from an order denying a trial by jury.</p>

<p>1. Damages—Elevated bailway—Conveyance.</p> <p>Where the owner oí an abutting lot, pending an action against an ele-, rated railway for an injunction and damage^, conveys the premises, the court may retain jurisdiction and award any relief to which he may, on trial, show himself entitled.</p> <p>"2. Same.</p> <p>But, in case he does not own the fee of the street on which his lot abuts, he is not entitled to an injunction, though he reserved in his deed all claims for damages in consequence of the construction and maintenance of such road.</p>

<p>Appeal from a judgment in favor of the plaintiff.</p>

The complaint was dismissed on the trial, and plaintiff’s exceptions were ordered to be heard in the first instance at general term.

<p>Municipal corporation—Ordinance—Burden.</p> <p>In an action by a city for violation of an ordinance prohibiting concerts in a place licensed to sell liquors, without payment of fee for such privilege, the city must prove that the fee was not paid. '</p>

<p>Negligence—Contributory—Child.</p> <p>Where a child sui juris is guilty of negligence which contributed to his injury, his complaint in an action to recover therefor is properly dismissed.</p>

<p>Appeal—Reversal—Effect of.</p> <p>The court of appeals, in not reversing a case on the merits, must be understood as holding the evidence sufficient to authorize a recovery.</p>

<p>1. Broker—Commissions.</p> <p>A broker is entitled to commissions where he brings the owner and proposed purchaser together, and they make an agreement of purchase and sale, even though such agreement is unenforceable.</p> <p>■&. Evidence—Broker.</p> <p>In an action by a broker for commissions, it is error to admit evidence as to negotiations between other parties respecting the sale of the property after the execution of the agreement for procuring which the commissions are claimed.</p>

<p>to Trial—Adjournment—Affidavit.</p> <p>An affidavit for the adjournment of the trial, because of the absence of a witness, must state the facts as to the efforts made to secure such witness.</p> <p>S, Pleading—Corporation.</p> <p>In an action by or against a corporation, the omission of the allegation of incorporation, required by § 1775 of the Code, is waived by answering on the merits.</p>

<p>Brokers—Commissions.</p> <p>An agreement by a real estate agent to divide commissions with plaintiff, if he should procure a purchaser for certain property, does not entitle him to such share, where he and a third party purchase the property.</p>

<p>1. Landlobd and tenant—Tenancy a.t will—Notice. '</p> <p>■ To terminate a tenancy at will by giving one month’s notice in writing, the notice need not expire at the end of a month.</p> <p>3. SUMMARY PBOCEEDINGS—TENANCY BY ENTIRETIES.</p> <p>The husband may maintain summary proceedings in respect to property held by entireties.</p>

<p>Negligence—Care.</p> <p>The fact of an attempt by a palace car inspector to adjust an automatic coupler, in order to attach a palace care to the train, in the exercise of due care, does not relieve the railroad company from its duty to exercise reasonable care to shield him from harm while engaged in the performance of his duty in that respect.</p>

<p>1. Appeal — Exceptions.</p> <p>A question of law may be presented by a bill of exceptions, though no appeal has been taken from the judgment.</p> <p>2. Same — Certificate.</p> <p>A record, which states the fact of a trial, recites the evidence in a narrative form and is signed, settled and ordered filed by the trial judge, is a , sufficient case on appeal to present questions of law.</p> <p>3. Negligence — Persons' on track.</p> <p>Where a person driving on a railway track, if he had given that attention to his surroundings whicli the law requires, would have been apprised by the bell signal that a-car was approaching, in time to remove himself from the track, but fails in this observance, he is guilty of negligence.</p>

<p>Appeal—Case—Service.</p> <p>The service of a “proposed” decision does not set the time running with^ in which a case must be served.</p>

<p>Action by plaintiff against defendant for divorce on the ground of adultery.</p>

<p>1. Will—Constbuction.</p> <p>Where there is a devise to one person in fee, and, in case of his death, to another, the contingency referred to is the death of the first named devisee during the lifetime of the testator, and, if such devisee survives the testator, he takes an absolute fee, unless there is some language in the will indicative of a different intention on the part of the testator.</p> <p>2. Same.</p> <p>The law favors equality among children in the distribution of estates, and, in case of doubtful construction, it selects that which leads to such a result.</p> <p>3. Same.</p> <p>The law favors the vesting of estates.</p>

<p>Appeal from judgment of the general term of the superior court of the city of New York, entered upon an order made February 6, 1893, which affirmed a judgment in favor of plaintiff entered upon a verdict, and also affirmed an order denying a motion for a new trial. The nature of the action and the facts, so far as material, are stated in the opinion. -</p>

<p>1. Executors, etc. — Commissions.</p> <p>Where the duties of the executors as such are distinct from those as trustees, they are entitled to commissions in both capacities.</p> <p>3. Same — Test.</p> <p>The tests, to ascertain whether the duties of executor and trustee are distinct or blended, given.</p>