Volume 6 — New York Miscellaneous Reports

<p>Where a street railway company uses chains upon the sides of open cars so as to prevent passengers from entering that way, the fact that the chains are down on the side next the other track is an invitation to passengers to enter the car on that side.</p> <p>At a transfer station plaintiff was about to get upon the car step, the chains being down on both sides, when a car came down on the other track at a rapid rate of speed and struck her. Held, that a verdict for plaintiff should be affirmed.</p>

<p>Appeal from a judgment in plaintiff’s favor. The opinion states the case.</p>

<p>Appeal from an order granted in an action of replevin.</p>

<p>Appeal from an order striking out certain items of a bill of costs.</p>

<p>In an action on a policy of life insurance plaintiff testified that at the solicitation of defendant’s agent she made a verbal application for a policy upon her husband’s life. Defendant gave, evidence to establish that plaintiff made or authorized a written application for the policy, and warranted the truth of the statements therein. A statement therein that her husband was never sick was claimed by defendant to be false in that, at the time, her husband had syphilis, and had been suffering with it long prior thereto. Held, that the evidence Justified a verdict that no written application had been made.</p> <p>On the trial the court excluded an authenticated copy of the attending physician’s certificate, filed with the board of health, in which it was certified that plaintiff’s husband was a married man and had died of syphilis of four years’ duration. Defendant claimed that the certificate should have been admitted as presumptive evidence of the truth of its recitals by virtue of Laws 1882, chapter 410, section 621. The court charged that if such written application was made plaintiff could not recover if at the time her husband had or had had syphilis. Held, that the certificate was properly excluded; the proper rational construction of said section is that an authenticated copy of the records of boards of health is admissible when the records themselves are relevant and admissible according to the existing rules of evidence, and the admission of the certificate would have been a plain violation of the general rule of the inadmissibility of hearsay evidence.</p>

<p>Action on an agreement relating to lands,. The opinion states the ease. Plaintiff had judgment below.</p>

<p>At the trial the complaint was dismissed unless, within twenty days, plaintiff obtained leave to serve an amended complaint. Without obtaining such leave, an amended complaint was served upon defendant’s attorney, who admitted due service thereof. Held, that defendant’s attorney should not be permitted to withdraw such admission.</p> <p>After an order denying defendant’s motion to vacate his admission of service of the amended complaint, and pending an appeal therefrom, defendant’s attorney moved to strike out the amended complaint upon the original and amended complaint and his affidavit, in which it was alleged that what purported to be an amended complaint was not an amendment of the complaint, but was a complaint founded upon entirely different facts from those set forth in the original complaint and alleged a different cause of action from that set forth in the original complaint. This motion was denied. From both complaints it clearly appeared that plaintiff sought to recover damages because defendant wrongfully permitted a large timber to he and remain upon the sidewalk in front of his premises over which she fell and sustained severe injuries. The allegations of both complaints were substantially the same, except that in the original complaint it was alleged that defendant permitted the obstruction to remain on the sidewalk, and in the amended complaint it was alleged that defendant had put or caused the obstruction to be put on the sidewalk and that the same was a nuisance. On appeal from both orders, held, that the order denying the motion to vacate the admission of service should be affirmed; that the order denying the motion to strike out the amended complaint should be affirmed, no new or different cause of action being set up therein; a recovery by plaintiff on the original complaint would have been a bar to any action to recover further damages for the same injuries on the ground that defendant had been guilty of maintaining a nuisance.</p>

<p>It appeared from the evidence in the case that, on the 20th of October, 1892, plaintiff took passage on one of defendant’s horse cars near the-corner of Fulton street and Alabama avenue, with a view of going to his residence. He was smoking a cigar at the time, and he got oh the front platform of the car, and there paid his fare to the conductor. At and just beyond the point where plaintiff boarded defendant’s car, there is a net work of rails and crossings and switches extending some considerable distance. As the car approached one of these switches or' cross overs, the tongue of the switch being misplaced, the car was suddenly jerked onto the cross over, by reason of which plaintiff was thrown from the front platform to the street, and thereby received the injuries complained of. There was testimony on the part of the plaintiff that the setting of the switch in question was done by a small boy (the witness Brown), who testified that he got off the car and pushed the tongue of the switch to one side with his hand; that it was the custom of the boys to so tend switch for the drivers of the cars in that neighborhood, and that they usually received a penny from the conductor for their trouble. Plaintiff’s evidence further tended to show that, while the car was crossing this switch, it was going at a high rate of speed, which was in direct violation of one of the rules of the company, which required the drivers to walk their horses while crossing a switch, and that the car, after striking the switch, went some ten feet onto the cross over before it was stopped. There was further testimony on the part of the plaintiff seeking to show that the rails at the switch were loose; that they were not properly spiked; that the tongue of the switch was worn down, and that these alleged defects contributed to cause the car to be thrown to the wrong track. This testimony, however, as to the boys’ turning the switch, as to the rate of speed of the car, and as to the alleged imperfect condition of the rail and tongue of the switch was denied by witnesses on the part of the defendant. Held, that, upon all the testimony, the question of defendant’s negligence and want of contributory negligence on the part of plaintiff was for the jury.</p> <p>Plaintiff’s evidence, uncontradicted, entitled him to go to the jury, and it would have been error to have dismissed the complaint; after the presentation of defendant’s, evidence there was a sharp issue presented between the parties on many important points, the determination of which was for the jury. Accordingly held, that a motion to dismiss the-complaint at the close of plaintiff’s case, and renewed upon the whole case, was properly denied.</p> <p>Held, also, that defendant’s contention that it was not liable because it had complied with the provisions of section 46 of the General Railroad Act (Laws of 1850, chap. 140), exempting railroads from liability for injuries to passengers while on a platform of a car in violation of printed regulations, there being sufficient accommodations inside the car, was untenable, as said section 46 was not applicable to a horse railroad.</p> <p>By rule of the defendant, smoking was permitted on the front platforms of its cars. Held, that it should not be permitted to shield itself from liability as a common carrier behind the provisions of section 46 of the Railroad Act.</p> <p>In an action for negligence the courts, unless it appears that the verdict was the result of passion or prejudice, or reached by an utter disregard of the principles of law as laid down by the trial judge, will not interfere to reduce the damages given.</p> <p>In the circumstances of the case at bar, a verdict of §7,500 held not excessive.</p>

<p>To save certain franchise rights of a water company, the extension of a water line was rendered necessary. Defendant told plaintiffs to make the extension and he would pay for it. In an action to recover the reasonable value of the work done, held, that defendant’s promise was an original one and not a collateral undertaking to pay 'the debt of the company, within the Statute of Frauds.</p>

<p>Where the consideration of a promissory note and its indorsement is affected with usury, and is after maturity taken up by the indorser and paid to the bank discounting it, a transferee of the indorser cannot recover thereon.</p> <p>A protested note is sufficient notice to all intending purchasers to put them on inquiry as to its validity or the maker’s defenses.</p>

<p>Where, in an action brought in the City Court of New York, the defendant withdraws from the trial of the case after a denial of his motion to postpone, no appeal lies directly to the General Term of said court.</p> <p>In such case the proper practice is to make a nonenumerated motion at Special Term to set aside the decision made against him, upon affidavits showing his application to postpone, the papers upon wMcKit was founded, its denial and that a judgment was entered against Mm.</p> <p>Such a motion should be made promptly, but if made within one year he may include in the motion an application under section 724 of the Code of Civil Procedure, and have Ms default opened, the inquest set aside, and the judgment against Mm vacated.</p>

<p>Appeal by defendant from judgment entered on verdict directed by the court for plaintiff.</p>

<p>Plaintiff, without signaling either the conductor or driver, stepped on the foot rail of an open street car when it started, and plaintiff’s body came in contact with a red truck which he had seen as he approached the car. There was no evidence that the driver or conductor saw either the truck or the plaintiff, or perceived the danger. In an action against defendant railroad company to recover for the injuries sustained, held, that „ plaintiff was properly nonsuited.</p>

<p>In an action begun November 3, 1892, in this state upon a promissory note made in Colorado in 1883, defendant pleaded the Statute of Limitations of this state, but was prevented from proving a continuous residence in this state for more than six years under a ruling, excepted to, that the statute of Colorado was applicable and not that of this state. Held, error, for which a judgment for plaintiff should be reversed.</p>

<p>Appeal by defendants from judgment on verdict in favor of plaintiffs, and from an order denying new trial.</p>

<p>Appeal from judgment on verdict returned by jury for plaintiffs and from order denying new trial.</p>

<p>Appeal by defendant from judgment entered on verdict of jury and from order denying new trial.</p>

<p>.In an action against partners the answer by specific denials put in issue every material allegation ofJ the complaint except the copartnership, and contained the following: “For a separate and distinct defense, and repeating the previous allegations,” and then alleged a defense consisting of new matter. Held, that a motion to strike out the words “and repeating the previous allegations,” as redundant, should have been granted. ' . .</p> <p>An order denying a motion to strike out said words as redundant reversed, motion granted, with costs, with leave to plaintiffs to demur to the alleged defense, consisting of new matter, within six days after entry of the order.</p>

<p>Appeal by defendant from order denying motion to vacate warrant of attachment against his property on the affidavits and papers upon which such warrant was granted.</p>

<p>Appeal from judgment entered upon a verdict of a jury rendered by direction of the court.</p>

<p>Appeal from an order. The opinion states the facts.</p>

<p>The defendant in an action died about ten a. m. the same day that the-General Term .of this court handed down and filed a decision affirming an order denying a motion to vacate the judgment rendered in the-action on appeal from the order of affirmance. Held, that in the absence of proof as to the exact time of defendant’s death, the presumption was that the decision was filed during the lifetime of defendant.</p> <p>Also held, that it was unnecessary to revive the action in the name of the-personal representatives of defendant in order to enter the order of affirmance. (Code, § 763.)</p> <p>Also held, that under the prayer for such other and further order or relief, or both, as to the court or justice may seem proper, the justice, on denying the motion to vacate the judgment entered, had the right and power-in the interest of justice, and the exercise of his discretion, to direct that said order and judgment be entered nunc pro tune.</p> <p>Also held, that it appearing that defendant’s attorney had a lien on the judgment for costs, he was entitled as an equitable assignee to enter the-judgment and issue execution thereon.</p>

<p>Appeal from judgment entered upon a verdict of a jury rendered by direction of the court.</p>

<p>Plaintiff sold to. a corporation organized under chapter 228 of the Laws of 1877, goods. In an action against defendant as a trustee thereof, to enforce his liability for the debt, defendant demurred on the ground' that the complaint failed to state a' cause of action. Held, that the demurrer should be overruled; that section 3 of chapter 228 of the Laws of 1877, as to the.liability of trustees, was revived by the Stock Corporation Act of 1892 (Laws 1892, chap. 688).</p>

<p>Appeal from a judgment in favor of plaintiff entered on the verdict of a jury. The opinion states the facts.</p>

<p>Appeal from a judgment entered on the verdict of a jury by direction of the court. The opinion states the facts.</p>

<p>Appeal from a judgment in favor of plaintiff entered on the verdict of a jury. The opinion states the facts.</p>

<p>A depositor owes no duty to a bank requiring him to examine his pass book or returned checks, with a view to the detection of forgeries ; he has a right to assume that the bank, before paying his checks, will ascertain the genuineness of the indorsements.</p> <p>The rule that notice to an agent is notice to his principal is only applicable to cases where the agent is acting in the course of his employment.</p>

<p>Appeal from a judgment in favor of plaintiff entered on the verdict of a jury, and from an order denying defendant’s motion for a new trial. The opinion states the facts.</p>

<p>Appeal from a judgment in favor of plaintiff entered upon the verdict of a jury, and from an order denying defendant’s motion for a .new trial. The opinion states the facts.</p>

<p>In an action upon a promissory note against the maker and indorser, the maker alone defended, and by his answer admitted the making of the note and the first and second indorsements, but denied that the last one was for value, and alleged want of knowledge sufficient to form a belief . as to the indorsement and delivery to plaintiff. He also set up a further -defense, which in effect admitted that plaintiff had made a prima facie case. Held, that it appearing from the admissions in the pleadings and an inspection of the second defense that there was a good and valuable-consideration, and that plaintiffs were Iona fide holders for value, and , that defendant had presented no defense, the judgment in plaintiffs’1 favor should be affirmed.</p>

<p>Application for probate of a will. The opinion states the facts.</p>

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

<p>Motion for a new trial made upon the minutes of the court. The head-note states the facts.</p>

<p>A publication charging a married woman with eloping imputes to her unchastity and is libelous pe?' se.</p> <p>A libel recklessly or carelessly published will support an award of punitive damages.</p> <p>The falsity of a publication libelous per se imputes malice without further proof.</p> <p>Where the proprietors of a newspaper intrust to an agent the discretionary power of publishing or rejecting, investigating or taking chances of the truthfulness of an article, his recklessness becomes theirs, and it is for the jury to characterize the act and withhold or award punishment.</p> <p>The charge of the trial court to the jury reviewed upon a motion for a new trial upon a case and exceptions, and conclusion reached that no error was committed therein subject to exceptions.</p>

<p>An attachment should he vacated when it rests solely upon alleged declarations of defendants to the effect that they would not have money to pay plaintiff or any of their creditors, and that they intended to sell the goods received hy them, and would not have money enough to pay any of their creditors, and would not pay them, and that plaintiff could stand it, all of said statements taken together being consistent with innocence.'</p>

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

Motion by plaintiff for a new trial on the minutes after a verdict for the defendant at the Circuit, and also a motion by the plaintiff for a new trial on the ground of newly discovered evidence.

The relators respectively are the widows of deceased privates in the military service of the United States in the late war, and as such have for some years received pensions from the government of the United States. The lands so assessed were purchased with the pension money so received by them, and consist of houses and lots occupied by them as their places of residence.

<p>Action to redeem from a mortgage.</p>

<p>The action is brought, as stated by plaintiff, to compel the removal of obstructions erected within the boundaries of a certain street- The determination whether the structures complained of, and admitted to exist, constitute an obstruction to the street, involves an inquiry into the legality of the street’s existence where the obstacles are. The testimony and the admitted facts establish one Reuben B Heacock as the common source of title through which both parties claim. Plaintiff claims title to the street by dedication and acceptance thereof by the public authorities, and also by eminent domain proceedings.. This claim is based upon certain deeds and maps, not necessary to recite, from which it appears that there was a street in existence known as North Canal street extending for some distance westerly of the premises in dispute, and that such portion was an open worked street with buildings fronting thereon and many street improvements existing therein, and which continue to exist, That as early as 1835 Heacock conveyed a part of the premises to one George, describing the same by reference to a road fifty feet wide, a part of the present claimed street. That thereafter, in 1835, George caused to be made and filed a certain map showing a street called “ North Canal street,” fifty feet wide, with lots fronting thereon, and sold and deeded some lots bounding thereon This map, however, does not extend the street over the premises now in dispute, but stops at Little Buffalo creek, then a stream of water, but since filled in and obliterated. With the stream filled in, the line of the street laid out, extended easterly, would embrace the disputed premises.. Subsequently, and on December 11,1848, Heacock acquired title to the property of a company called the “Hydraulic Association,” on the northerly bank of which, and upon the property conveyed, ran the proposed street Heacock likewise filed a map showing the street as existing on the George map. It does not appear that the city accepted the proposed street or took any action thereon until May 7, 1850, when a committee of the common council reported that it did not appear that the street had ever legally been laid out, at least not as matter of record, and adopted a resolution directing the surveyor to survey said street, as originally dedicated and laid out by the owners of the land. Subsequently a report of the surveyor was made showing the street as originally laid out, and upon such report the city adopted a notice of intention to take and open up the street, followed by a resolution of determination to appropriate the lands necessary to open up North Canal street, in each instance describing the lands appropriated. Commissioners were appointed to appraise the damage, who reported, and the report was thereafter confirmed December 24, 1850. In 1853 like proceedings were taken by the city to widen said' street ten or ten and one-half feet, resulting in a confirmation of the report of commissioners appointed to assess the damages, and the payment of awards made to various parties, of whom one was Heacock, by local assessment. Record of these proceedings was entered in a book kept by the city, except that relating to the opening of the street fifty feet wide, of which nothing is recorded except the resolution of determination. No record of these proceedings, or any other relating to the street, taken by the 'city, was ever recorded in the clerk’s office of Erie county. In 1853-Heacock commenced an action against the city to restrain the ' grading .or interference with the street. This action, upon demurrer to the complaint, was decided in favor of the city, and judgment thereon was entered. The name of the street has been twice changed, first to North Swan, then to Seymour, by which it is now known. It has been opened as far as Lord street, now called, and is at present used as a street to this point. In 1876 grade of the street was ordered made to Smith street, which intersects it, and August 22,1881, grade was adopted. Ho other act having reference to this street has been taken by the city except such as relate to a notice to remove the obstructions about 1885. It was conceded by the city that there is no record that the street has ever been opened or worked east of Lord street, which embraces the part in dispute It is also established that this portion of the street has never been opened, worked or traveled; that during all the time it has been continuously occupied by the defendant and his grantors with buildings and bark piles and other structures; that in 1875, prior to defendant’s purchasing the premises, a fence was constructed around the property, piles of lumber and buildings existed thereon, and there was nothing from the appearance of the ground indicating the existence of any street, or that there had ever been one, and a search of the records showed a chain of title then complete in defendant’s grantor. In 1870 Jacob Getz and others were the owners of these premises and executed a mortgage thereon to their grantors, Wilhelmiua and John Pfill, which mortgage was thereafter assigned to Thomas Edmonds, who foreclosed the same, making the city a party. Judgment of foreclosure and sale was ordered, the city making default, and the premises were thereafter sold by the sheriff and bid in by one Haines, through whom defendant makes title. About 1883 one Garretson, president of the defendant furniture company, learning that it was proposed to extend Seymour street, inquired at the office of the city engineer with respect thereto, and the lines of the proposed extension. He was there shown a map of the proposed extension from Lord to Smith streets, which showed the contemplated extension in straight lines, the street as originally proposed containing a sharp angle; thereupon he caused a survey to he made of such proposed extension, located the line upon the ground and erected thereon permanent brick buildings which are now in the line of the street sought to be opened. They constitute a' part of the obstructions complained of. Ho notice of any change in the proposed extension has ever been given, except the notice to remove all obstructions. Upon these facts the plaintiff asks judgment.</p>

<p>Motion for an order setting aside taxation of costs by the clerk, and for retaxation of the same.</p>

<p>The true measure of damages in an action by a boarding house keeper against those engaging board and lodging and not taking the agreed accommodation, is not what the parties agreed to pay, but what the plaintiff actually lost in consequence of the breach.</p>

<p>Appeal from judgment in favor of plaintiff entered upon the verdict of a jury.</p>

<p>It is not necessary for the broker to know the purchaser, if he was found through the efforts and instrumentality of the former, for the broker is then entitled to compensation, although the owner negotiates the sale himself.</p> <p>Plaintiffs, who were familiar with a rare violin belonging to defendant, which he was trying to sell, advised him to place it in the hands of one house which would advertise it, and stated that if he decided to let them have the sale he should bring them its history for a circular which they would publish. This was accordingly done, and plaintiffs advertised it extensively, and spoke of it to a professional violinist, promising to introduce her to defendant. Before this could be done, she was introduced by another person and saw the violin, which defendant allowed her to use at the request of plaintiffs, and subsequently a friend of hers, through her agency, purchased it from the defendant. In an action for commissions, held, that plaintiffs were the procuring cause of the sale, and were entitled to commissions.</p>

<p>False representations, tobe actionable, must be made with intent to deceive,. and must be known to the person making them to be such.</p> <p>In an action on contract, where the only defense for not carrying it out is that the making of the contract was induced by false and fraudulent representations, if there is no evidence that plaintiff knew when he made them that they were false, or made them with intent to deceive,, a direction of a verdict for the plaintiff is proper.</p>

<p>Appeal from judgment in favor of plaintiff in an action against the sureties upon an undertaking given to procure an attachment in a District Court.</p>

<p>In an action upon a promissory note against the maker and indorser, the joint answer of the defendants set up as a counterclaim a claim for damages sustained hy one of the defendants hy a breach of contract in a real estate transaction between plaintifE and his wife and such defendant. Held, had on demurrer.</p>

<p>A continuing guaranty may be revoked upon proper notice, if, at the time-of such notice, all sums due have been paid.</p> <p>In an action on a continuing guaranty of payment for goods sold, the-defendant testified that at a time when all previous purchases had been paid for he told plaintiffs’ salesman and the person at their cash window that he withdrew the guaranty, and was told to put the notice in writing, and did so. Held, that the question whether written notice of revocation was given, and whether it was served on a person authorized to receive such notice should have been submitted to the jury, and that a direction of a verdict for plaintiffs was error.</p>

<p>Appeal from judgment in favor of plaintiff entered upon, verdict.</p>

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

<p>A failure to maintain the water works system of a village in proper condition so that a court or jury might deem it possible or probable that fire could have been put out with proper vigilance by the parties who first discovered it if the water supply had been sufficient, does not afford a cause of action against the village to either the insurer or insured.</p>

<p>A purchaser of personal property who gives a note therefor providing that the goods shall remain the property of the vendor until fully paid for, which note is duly filed, has no leviable interest in the goods ; the vendor may demand possession at any time, and in case of a levy under execution against the vendee, may maintain replevin to recover the property.</p>

<p>Action for the specific performance of a contract to open a street..</p>

<p>A stay upon appeal in a criminal case is not a matter of right, and will only be granted after a careful examination and a determination that there is a reasonable doubt whether the judgment of conviction will stand. This requires an examination of the entire case, including the indictment, evidence and charge, unless a part of the record or a portion only of the evidence reveals a palpable error; and, hence, a stay will not be granted where only a part of the evidence, a memorandum of an exception to the charge and conflicting affidavits of the attorneys as to what " took place on the trial are presented.</p>

<p>"The mere-filing of the summons, complaint and lis pendens in an action for partition and service upon one or more of the defendants is not sufficient to make the action one pending against defendants not served so as to constitute-a defense to a similar action subsequently brought by a defendant who was not served.</p> <p>More than sixty days prior to the commencement of this action the defendant filed a summons, complaint and notice of Us pendens in an action of partition against this plaintiff and others, and made service upon some of the defendants therein, but not upon the plaintiff until after this action was commenced by service of summons upon him. Held, that . such action was not pending against this plaintiff at the time of the commencement of this action, and furnished no defense thereto.</p>

<p>An agreement between the owners of property restricting the right to erect buildings thereon may be made by parol, and when so- made, any person who receives a conveyance of lots which are included within it and subject to it, with full notice of the extent and nature of the restrictions, takes the land subject to those restrictions and is bound by them.</p>

Appeal by the defendant, David Finelite, the owrier of the premises 38 and 40 Willow place, Brooklyn, from a judgment of foreclosure of mechanic’s liens.

Action to recover damages for the death of plaintiff’s intestate, alleged to have been caused by his being thrown from the front platform of one of defendant’s horse cars by a jolt caused by a defect in the track at a curve, and under the front wheeh

<p>Appeal from judgment entered upon a nonsuit at the close of plaintiffs case.</p>

Action to recover the sum of $2,000 for washing, ironing, cooking and housework for a period covering four years, claimed to have been rendered by the plaintiff to the defendant’s decedent.

<p>Even if a husband should not he committed to jail for nonpayment of alimony when he is unable to pay, the burden is upon him, when proceeded against, to establish his poverty and show that hé cannot earn enough to support his wife and children.</p>

<p>In an action for injuries caused by alleged negligence, the plaintiff testi fied, without objection, that she was a custom corsetmaker, that she employed two girls, and that her earnings averaged twenty-five to thirty dollars a week the year round. The court charged, on request, that if the jury were satisfied that the plaintiff has lost the ability to earn money in the future by reason of the accident, and found for the plaintiff, they were obliged to include in the award such sum as they believe she will lose in future earnings by reason of the injury. Reid, no error.</p>

<p>In an action by executors to recover possession of certain bonds alleged to have been wrongfully taken by defendant, one of the plaintiffs testified that the bonds were in decedent’s possession about a year prior to her death; that defendant, who lived in the same house, could have stolen them, and that she told them that deceased gave them to her about two weeks prior to her death, when it appeared that deceased was in a state of coma. Defendant denied this, and stated that she said they were given her two weeks after decedent’s sickness began, when she was mentally able to transact business. She endeavored to prove a gift, but her testimony was stricken out. The court charged that the burden of proof was on defendant to establish that her possession was lawful. Held, error; that the burden was on the plaintiffs to establish their right of possession.</p>

<p>In every instance where the total personal property of an intestate or testator passing to the persons named, in section 2 of chapter 399, Laws of 1892, equals or exceeds §10,000, the liability to taxation under the pro-» visions of said act at the rate of one per cent exists ; and in every case where such property, real or personal, passing to persons other than those named in section 2 is of the value of §500 or more, the liability to tax at the rate of five per cent exists, and in neither case is such liability affected by the size of the individual shares.</p>

demurrer to the complaint. The following is the opinion of the court below: “McAdam, J. Applying the maxim ‘ causa próxima nonremota spectatur] the plaintiff is without a cause of action against the defendant, unless the latter, as owner of a tenement, is liable to the plaintiff as her tenant because she slipped upon the ice on the walk or stoop of her house, and there is no such liability.

The facts appear fully in the opinion of the referee as follows: Hamilton Odell, Referee.

<p>Motion for leave to amend answer.</p>

Motion on behalf of the defendant Tew to dissolve a temporary injunction granted in this action restraining the defendant Tew from receiving his pay for service performed as plumbing inspector of the city of Jamestown.

Motion to dissolve an injunction granted against the defendant from using certain premises for public dances, halls, etc.

<p>Actioit to recover the amount of an award determined by ah arbitrator under a common-law submission.</p>

<p>Motion to stay plaintiff’s proceedings for nonpayment of costs of a former action.</p>

<p>"Where the complaint in an action against a railroad company for the negligent killing of plaintiff’s intestate, a brakeman in its employ, alleges in general terms that defendant carelessly and negligently managed the train on which the deceased was employed and other trains and locomotives through incompetent and careless servants and under insufficient rules, with defective appliances and over defective and unsafe tracks and roadbed, and that deceased was killed by a locomotive so carelessly and negligently managed, without specifying the place, time," character or identity of the trains and locomotives, nature of the alleged negligent acts or what rules and regulations were insufficient, or what appliances, rolling stock and equipment were unsafe, the defendant is entitled to a bill of particulars in respect to these matters to enable it to prepare for trial.</p>

<p>Kb intention to assign awards for lands taken to widen a street under chap* t«r 559, Laws of 1871, can be inferred from a mortgage made after the passage of that act which expressly excludes from the premises described the land so taken, and restricts the conveyance to the parts of the lots, not taken.</p>

<p>In an action against an elevated railway to restrain its operation and for damages, evidence as to the comparative increase of similar property in the immediate neighborhood is admissible, and it is error to exclude it.</p>

<p>Appeal from judgment in favor of the plaintiff rendered after a trial at Special Term.</p>

<p>■ Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury for $650.</p>

<p>Appeal from judgment of the Special Term in favor of the defendant.</p>

Action upon an undertaking executed by defendants in an action brought by one Johann Carl Kutt, as executor, against this plaintiff, in which an order of arrest was granted.

Action to recover for injuries received by the plaintiff while alighting from a train, caused by the sudden starting of the train without warning, whereby she was thrown headlong to the platform.

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

<p>Application under section 65 of chapter 680, Laws of 1892, for an order determining the regularity of certain nominations.</p>

<p>Disobedience of an injunction order is not excused by the fact that the law prohibiting the act enjoined is unconstitutional.</p> <p>If the law is unconstitutional, and the injunction in that particular erroneous, the remedy is by motion to vacate or modify it, or by appeal from the order granting it.</p> <p>Defendant was enjoined from selling oleomargarine or butterine, which js an imitation or semblance of butter, the product of the dairy. Held, that, assuming that the provision of section 26 of chapter 338, Laws of 1893, prohibiting the manufacture or sale of such articles is unconstitutional, this would not render the injunction void on its face, and that a disobedience of the injunction order rendered the defendant guilty of contempt.</p>

<p>Heabing to show cause in contempt proceedings.</p>

<p>In an action to foreclose a mortgage the defense was payment by the rendition of services. It appeared that a son of the mortgagors took an assignment of the bond and mortgage, but reassigned it after about three years. The evidence of the defendant tended to show that said son agreed with his parents to pay them for the board and maintenance of his daughter by applying it in cancellation of the bond and mortgage; that they cared for the daughter over two years and until her death, such services amounting to more than the mortgage; that the son took assignment of the mortgage and declared to them and others that he had done as he agreed; that the place was theirs and that the mortgage should never bother them. Held, that the evidence was sufficient to establish a contract to pay for such services, and that, as their value exceeded the amount due on the bond and mortgage, which were held by the son when the indebtedness for the services accrued, the bond and mortgage were paid and satisfied.</p>

<p>A complaint in an action upon an undertaking given to procure the return of a chattel which had heen replevied which does not allege that upon taking the proper statutory proceedings the chattel was delivered to defendant, or, at least, that the delivery of the chattel was procured by means of the undertaking, is insufficient.</p> <p>The bare statement of the justice on the back of the undertaking that he received an affidavit and notice with it is not an allegation that a sufficient notice or affidavit was received, nor does it amount to an allowance of the undertaking.</p>

<p>A board of excise having refused to grant any licenses, two of its members having been elected as no-license commissioners, proceedings were commenced for their removal under section 6 of chapter 401, Laws of 1892. At a special meeting of the board, of which due notice was given, the petitioner was appointed attorney for the board, and afterwards defended the proceedings, which resulted in a dismissal. Held, that the services thus rendered were reasonably necessary for the board, and his compensation therefor a proper town charge.</p> <p>Where a town auditing board refuse to consider a claim on its merits, but reject it as not a proper town charge, and the claimant has a clear legal right to have the claim audited, a mandamus may issue to set the board in motion and compel it to perform its duty.</p>

Two instruments are presented for probate, one bearing date September 9, 1885, to which is attached a codicil dated October 16, 1890 ; the other,, known as the “ brown paper will.” because written on a large sheet of common wrapping paper, is alleged to have been executed April 27, 1891. After application had been made by the executor named in the will of September 9, 1885, for the probate of said will and codicil, the “ brown paper will ” was presented for probate.

<p>Trial at Special Term.</p> <p>Roxanna Kelley, the plaintiff, brought this action against the mayor, aldermen and commonalty of the city of New York, and the commissioner of public works of that city, to restrain them from entering upon and interfering with the premises of plaintiff in Putnam county, in this state, through which premises runs a stream, about thirty-five feet in width, known as the middle branch of the Croton river, through which stream the waters stored in the middle branch reservoir are conducted into the Croton river, and thence by the Croton lake and the aqueducts into the city of New York, where the water forms part of that used for drinking and domestic purposes.</p>

<p>An order of interpleader should not be granted in an action upon an award where the person sought to be substituted does not claim to be entitled to the award, but claims to be entitled to the debt upon which it is predicated.</p>

<p>To create a binding contract by correspondence the offer must be accepted as it shall be contained in the offer itself.</p> <p>The defendant wrote to plaintiffs offering for sale certain goods at a specified price, to which plaintiffs replied: “We accept your offer if full weight plates.” Held, that the reply was not such an acceptance of the offer as to constitute a contract, as it made the acceptance depend upon facts not contained in the proposal.</p>

<p>Appeal from judgment sustaining demurrer to the counterclaim set up in the answer.</p>

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

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

<p>Appeal from judgment in favor of the plaintiff, entered upon the verdict of a jury.</p>

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

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

<p>One F. being desirous of purchasing of defendants certain lumber then upon, boats, upon credit, agreed that plaintiffs’ assignors would give as collateral security for his notes wharf receipts for the lumber, P. agreeing to pay the docking and storage charges. Such receipts were thereupon given, which provided that the lumber was held subject to defendants’ order until the third of the following April, to be delivered on their order upon payment of the charges. Plaintiffs’ assignors at that, time had knowledge of the agreement with F., and did not inform defendants of a prior agreement by which they had agreed to lease the wharf to F., which lease was subsequently given to take effect in the-following April, but giving F. permission to use the same without rent, prior to that time. In an action for dockage and storage charges, held, that the contract as evidenced by the receipts was one of bailment for hire ; that plaintiffs’ assignors held the lumber for defendants, who by accepting its terms agreed to pay the dockage and storage charges, and this being the fair import of the contract, it could not be varied by parol; that the omission to inform defendants of the agreement to give-the lease not being shown to have been intentional or fraudulent, defendants were not entitled to a reformation of the contract on that ground.</p>

Action to foreclose a lien and obtain the sale of a bond and mortgage that had been assigned to the bank as collateral security for the payment of a note.

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

<p>This was an application for a writ of prohibition to prevent a justice of the peace in Richmond county from taking, otherwise than in public, the depositions of witnesses as to alleged violations of section 41 of the Penal Code. The proceedings were instituted by an information that such crimes had been committed by “ John Doe” and others, and witnesses were subpoenaed, brought before the magistrate, and examined in private ; that is, the public and persons claiming to be counsel for “ John Doe ” and for the witnesses were excluded.</p>

<p>The prohibitive sections of the Interstate Commerce Act apply to shippers. and their agents as well as to common carriers.</p> <p>What was done by the parties under a contract may be resorted to for the purpose of aiding its interpretation.</p> <p>In an action for a wrongful discharge it appeared that the contract of employment, which was oral, provided that plaintiff should take charge of defendant’s transportation department, viz., to direct the routing of shipments and to use his supposed ability to get special rates from the railroad companies and get the best of them, and to see that the cars came in and went out promptly ; that he made arrangements with various railroad companies, some of them out of this state, for the shipment of freight, on which he was paid rebates, which he turned over to defendant. Meld, that the services contemplated were illegal under the Interstate Commerce Act, and, therefore, the contract was equally so, and the law will not enforce it or permit a recovery of damages based on its violation.</p>

<p>Appeal from a judgment rendered at a trial term dismissing plaintiff’s complaint upon the minutes.</p>

This is an appeal by the defendant from a judgment in favor of the plaintiffs against her, entered upon the verdict of a jury on the 12th day of Hay, 1893, for $363.79, and from an order denying the defendant’s motion for a new trial made upon the minutes of the judge presiding at the trial.

Appeal from judgment in favor of the plaintiff, entered upon the verdict of a jury, and from order denying a motion for a new trial made on a case containing exceptions,

<p>Action to enforce an agreement of tlie defendant releasing all claim to the property of John Kinyon, his father.</p>

<p>Appeal by defendant from judgment, entered upon the verdict of a jury, and from order denying defendant’s motion for a new trial.</p>

Appeal by defendant from judgment, entered upon the verdict of a jury, and from order denying defendant’s motion for a new trial.

<p>Bill of particulars.</p>

<p>Appeal from order denying a motion to amend judgment.</p>

<p>Appeal from judgment in favor of the plaintiff, entered upon a verdict.</p>

<p>Appeal from order overruling demurrer to the complaint and from judgment entered thereon.</p>

<p>Appeal from order denying motion to vacate attachment on the papers upon which it was granted.</p>

<p>Appeal from judgment in favor of the plaintiff, entered .upon the verdict of a jury.</p>

<p>Appeal from order denying motion to vacate and set aside-a judgment in favor of plaintiff and to vacate an attachment.</p>

<p>Appeal by defendant from judgment on a verdict and order denying new trial.</p>

<p>Contract — breach.</p>

<p>Appeal from judgment in favor of defendant and from order overruling plaintiffs’ demurrer to counterclaim set up in the answer.</p>

<p>Appeal from judgment in favor of the plaintiff, entered upon, a verdict.</p>

<p>Appeal from order granting leave to issue execution.</p>

<p>Appeal from judgment in favor of the plaintiffs, entered upon a verdict.</p>

<p>Sale — extension of credit.</p>

<p>Contract — theatrical.</p>

<p>Appeal — resettlement of case.</p>

<p>Service — designation of person to receive.</p>

<p>New trial—newly discovered evidence.</p>

<p>Appeal from judgment in favor of the defendant, entered Upon verdict.</p>

<p>Appeal from judgment entered on verdict in favor of plaintiff.</p>

<p>Appeal from judgment in favor of the plaintiff, entered upon verdict.</p>

<p>Appeal from judgment in favor of the plaintiff, entered upon a verdict.</p>

<p>Appeal from judgment entered on a verdict directed in favor of plaintiff.</p>

<p>Appeal from judgment entered on verdict in favor of plaintiff.</p>

<p>Appeal from a judgment in favor of defendant and against plaintiff after trial before the court without a jury.</p>

<p>Appeal from order directing exceptions to be heard, etc.,, of trial judge and motion for allowance, etc.</p>

<p>Contract — statute of frauds.</p>

<p>Bills and notes — pleading.</p>

<p>Appeal from judgment in favor of the plaintiff, entered upon verdict.</p>

<p>Payment—application of.</p>

<p>Appeal from an order denying motion for examination of plaintiff before trial.</p>

<p>Motion for reargument.</p>

<p>Appeal from a judgment, entered upon the verdict of a jury, and from an order denying a motion for a new trial..</p>