Volume 60 — New York Miscellaneous Reports

<p>Justices of the peace — Jurisdiction — Nonresident parties — Parties nonresidents of State.</p> <p>A justice of the peace has no jurisdiction of an action where neither of the parties resides in this State.</p>

Appeal by the tenant from a final order in favor of the landlord, entered in the Municipal Oourt of the city of New York, ninth district, borough of Manhattan.

<p>Chattel mortgages — Title and ownership—After default — Where mortgage provides for payment of surplus to mortgagor.</p> <p>Exemptions — Enforcement and protection of right to exemption— Necessity of claim.</p> <p>Supplementary proceedings — Disobedience to order or subpoena as contempt—Failure to comply with order for payment or delivery of property — Waiver of exemption by failure to claim it.</p> <p>Where a chattel mortgage provides for the rendition of any surplus arising upon the sale of the chattels to the mortgagor, the mortgagee, upon default, does not become the sole, absolute and unconditional owner of the mortgaged chattels, but the mortgagor still has a leviable interest subject to the claim of the mortgage.</p> <p>Two trucks and a horse belonging to a judgment debtor are not absolutely but only qualifiedly exempt from execution; and, where, in supplementary proceedings, the judgment debtor makes no claim of exemption at the time they are demanded of him by the judgment creditor under an order directing their delivery to be applied to the payment of the judgment, upon the judgment debtor’s refusal to deliver them he will be punished for disobedience to the order.</p>

<p>Contempt — Punishment — Imprisonment — Discharge — Sufficiency oí grounds for discharge.</p> <p>Supplementary proceedings — Disobedience to order or subpoena as contempt— Punishment — Discharge from imprisonment.</p> <p>Where a judgment debtor is fined for disobedience to an order in supplementary proceedings, he cannot be released from jail without payment of the fine as a matter of grace or mercy on the part of the court; and he should not be released upon his uncorroborated affidavit of his inability to pay the fine, where such inability arose from his mortgaging Ms property after the fine was imposed.</p>

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

Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, second district, borough of the Bronx, rendered in favor of the defendant dismissing the complaint.

<p>Carriers — Carriage of goods—Limitation of liability — Power to limit liabilty — Effect of Interstate Commerce Act.</p> <p>Values — Price paid at auction or public or judicial sale —When not controlling.</p> <p>The acceptance of a receipt, containing provisions to exempt the carrier from liability, by a shipper of merchandise, from a carrier engaged in interstate commerce, does not effect such exemption since the amendment of 1906 to the Interstate Commerce Act; nor will the damages found by the jury be diminished because of a statement in the record that the goods were afterward sold in a distant State by another carrier for a less sum, without proof that such sale was with the consent of, or upon notice to, the plaintiffs.</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 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, fifth 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, second district, borough of The Bronx.

<p>Appeal — Review — Review of questions of fact — On • appeal from Marine Court or City Court of New York.</p> <p>Evidence—‘Relevancy: Circumstances tending to make proposition probable: Intent, motive or understanding — Operation of witness’ mind.</p> <p>Foreign corporations — Recognition, regulation and status — What is carrying on business.</p> <p>Frauds, Statute of — Pleading, evidence and trial — Pleading statute as a defense — Necessity.</p> <p>Sales — Remedies of seller —Action for price —Admissibility of evidence.</p> <p>Where a written contract for the purchase of two car-loads of raisins was modified by a parol agreement for the purchase and delivery of but one car, it is competent, in an action for the breach of the oral agreement, to show, as evidence of a consideration moving from the defendant for his new promise, that, at the time of the modification of the written contract, the raisin market was rapidly declining.</p> <p>A question to defendant’s treasurer to “ explain why ” he kept the papers relating to the contract from October 15 to November 15 and sent them back together with notice of the arrival of the goods on November 17 was subject to the objection that it called for what was in the witness’ mind.</p> <p>An appellate court will not interfere with the determination of a jury upon a question of fact where no preponderance of the testimony favors the appellant.</p> <p>The statutory ban against the maintenance in this State by foreign corporations of actions on contract is applicable only to such as have places of business and are carrying on or pursuing business within this State; and a California corporation not authorized to do business in this State may maintain an action here for breach of a contract of sale made through a local broker by writings made or approved in California.</p> <p>The defendant not having pleaded the Statute of Frauds could not object that the modification of the written contract by parol was invalid under said statute.</p>

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

<p>Municipal Courts — Procedure: Discontinuance: Relief from default — Conditions.</p> <p>The Municipal Court of the city of New York has no power to order the discontinuance of an action without costs.</p> <p>A verbal understanding between counsel that the case should not be proceeded with until defendant’s attorney could attend the call of the calendar in another court is subject to the disposition of the case as directed by the trial judge who may insist on the action being tried when reached.</p> <p>Where the action was for rent under a written lease and judgment in plaintiff’s favor was taken by default in violation of such understanding between counsel, the court may, as a condition of opening the default, require the defendant either to deposit the amount of the judgment or give an undertaking, as provided in section 256 of the Municipal Court Act; but the court is without power to exact the deposit of an amount in excess of the judgment.</p>

Appeal by- the defendant from a judgment in favor of the plaintiffs, rendered in the Municipal Oourt of the city of Mew Tork, ninth district, borough of Manhattan.

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

Appeal by the defendant from a judgment of the Municipal Court of the city of Mew York, fifth district, borough of Manhattan, in favor of the plaintiff in an action for the recovery of chattels, and appeal by the plaintiff from an order denying a motion to return amount deposited in court.

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

<p>Appeal by the plaintiff from an order of the Municipal Court of the city of New York, second district, borough of ! The Bronx.</p>

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

Appeal by the defendant from an interlocutory judgment of the Municipal Court of the city of Mew York, second district, borough of Manhattan, overruling the demurrer to the complaint, with costs.

<p>Negligence—Actions — Evidence—Admissibility — Under general denial — Proof that damage was caused by others.</p> <p>In an action to recover for damages done to plaintiff’s coal boat by the alleged negligent use of a “ digger ” employed by defendant’s employees in unloading the boat, the defendant under a general denial is entitled to prove that the damage complained of was caused by others for whose acts he was not responsible.</p>

Appeal by the defendant from a jndgment of the Municipal Court of the city of New York, fifth district, borough of Manhattan, entered upon the verdict of a jury in favor of the plaintiff.

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

<p>Pleading—Answer or plea — Denials and traverses — Evasive or indirect denial; negative pregnant.</p> <p>Summary proceedings—Answer or counter affidavit—Sufficiency — Evasive or indirect denial; negative pregnant.</p> <p>In summary proceedings to recover demised premises for nonpayment of rent, a denial of the allegations contained in the petition of the landlord in which he states that, on the 1st day of March, 1908, there was due to the landlord from said tenant, under and by virtue of a written agreement, the sum of $2,000 for one month’s rent of said premises from March 1, 1908, to April 1, 1908, is not a denial of the lease set out in the petition or its terms.</p> <p>Nor is a denial that the statements contained in the petition of said landlord that said rent has been demanded in writing from the tenant by service of a three days’ written demand equivalent to a denial of the allegations of the petition that a three days’ notice in writing has been served upon the tenant in compliance with the statute.</p>

<p>Pleading — Evidence admissible under the pleadings — In general — Evidence in reply to defense set up in answer.</p> <p>In an action to recover damages for an alleged breach of a contract of employment, where the defendant sets up a release by the plaintiff and such an instrument is offered in evidence by the defendant and received upon the trial, it is error to exclude evidence offered by the plaintiff who is unable to read and write English that he was induced to sign the release under the belief that it was a receipt for money which the defendant paid him for work performed under his contract.</p>

<p>Appeal by the defendants from a judgment of the City Court of the city of blew York, rendered in favor of the plaintiff.</p>

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

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.

Petition of Henry C. Nelson for payment over to him of one-half of a certain award made by commissioners of appraisal in above entitled matter.

<p>Intoxicating liquors — Granting license — Granting by county treasurer —Power to refuse licenses.</p> <p>Upon an application to the county treasurer for a liquor tax certificate, he may not examine his files and determine the truthfulness of the statements contained in the application; but he must issue the certificate if the application is correct in form and does not show on its face that the applicant is prohibited from trafficking in liquor.</p>

<p>Application for a peremptory writ of mandamus commanding the board of elections of the city of New York to appoint the Democratic members of the various boards of election officers in the county of Kings, from the lists authenticated and filed by the relator, as chairman of the executive committee of the Democratic county committee in the county of Kings.</p>

<p>Counties: Board of supervisors — Power to control designation by county treasurer of depositary of public funds; Legislative powers — How exercised: County treasurer — Deposit of public funds — Designating depositary.</p> <p>A resolution of the board of supervisors of a county to limit the designation of depositaries of moneys received by the county treasurer to banks and trust companies does not except the county from the provision of chap. 436, Laws of 1877, making it the duty of the county treasurer within twenty days after entering upon the duties of his office to designate depositaries by an instrument in writing.</p> <p>In counties where, under the provisions of chap. 436 of the Laws of 1877, it is the duty of the county treasurer to designate depositaries for moneys received by him as treasurer, the board of supervisors has no power to direct him as to the manner in which he shall make designations nor to limit the designation of depositaries to banks and trust companies.</p> <p>Where boards of supervisors are authorized to take jurisdiction of the designation of banks for deposit of county funds, their legislation must be enacted and published in accordance with the statute regulating the enactment and publication of laws by boards of supervisors.</p>

<p>Affidavit — Form and requisites—Authentication—Affidavit taken in another State.</p> <p>Arrest on mesne process: Application for writ and proceedings thereon — Requisites and sufficiency of affidavit — Affidavit taken in another State: Motion to vacate order — Defendant’s right to move — Waiver;' Imposition of terms on vacating — Stipulation not to sue.</p> <p>A judge is without jurisdiction to grant an order of arrest upon an affidavit sworn to in another State, without the certificate as to the official character and genuineness of the signature of the officer administering the oath, required by section 844 of the Code of Civil Procedure.</p> <p>It is now the settled law that the defendant does not, by giving bail, waive his right to move to vacate an order of arrest within the time prescribed by section 567 of the Code of Civil Procedure.</p> <p>Where an order of arrest is vacated because the judge who granted it was without jurisdiction, the court has no power to impose as a condition that the defendant shall stipulate not to sue the plaintiff for false imprisonment.</p>

<p>Villages: Sewerage system — Power to construct not abridged by Public Health Law; Sufficiency of map or plan; Construction of proposition adopted at public election: Taxes in villages — Power of trustees — Tax for sewer system.</p> <p>The provisions of section 72 of the Public Health Law were not intended to alter or abridge the power of a village under the General Village Law to construct a sewer at its own expense.</p> <p>The provisions oE section 260 of the Village Law relating to the construction of a sewer system do not require the map or plan therein mentioned to embrace every lateral sewer which may become necessary with the growth and development of the village.</p> <p>A proposition submitted to and adopted at a public election, which authorizes the construction of a sewer system at the expense of the village at large at a maximum cost of $100,000, and further, authorizes the board of trustees to raise $59,800 by the sale of bonds, must be construed as by necessary implication authorizing the board of trustees to raise the balance of such cost by taxation.</p>

<p>Forests — Trespass on State lands — Authority of Forest, Fish and Game Commission in suits for damages — Eight to employ attorney. Public lands — Trespass on State lands — Authority of Forest, Fish and Game Commission in suits for damages — Eight to employ attorney.</p> <p>In an action brought by the Forest, Fish and Game Commission in the name of the People of the State of New York for trespass upon State lands, the Attorney-General has not the right to be substituted as plaintiff’s attorney in the place of the attorney employed by the Commission to prosecute the action.</p> <p>An action brought by the Forest, Fish and Game Commission in the name of the People of the State of New York to recover a sum of money only as damages for trespass upon the lands of the State is not a suit authorized by section 20 of chap. 220 of the Laws of 1897, .as amended by section 20 of chap. 135 of the Laws of 1898, and does not come within the provision of that section authorizing a settlement by the Commission nor is there any authority of law for such a settlement by the Commissioner.</p> <p>A motion to vacate a stipulation for the settlement of an action and a judgment and proceedings thereunder on the ground that they were collusive, fraudulent and illegal, is addressed to the inherent power of the court to control its own proceedings and judgments and is not subject to the limitations of time prescribed in section 1282 or in section 1290 of the Code of Civil Procedure.</p> <p>It is not a condition precedent to the hearing of a motion to vacate a stipulation for the settlement of an action on such grounds that the moving parties shall tender restitution.</p> <p>In such a case, however, the court, having set aside the stipulation, may require restitution and.may enforce it.</p>

<p>Executors and administrators — Actions and proceedings in general — Parties — Foreign representatives — Foreign legatee when to be joined.</p> <p>Parties — Defendants — Who must be joined — Representatives of deceased person—Legatee of deceased foreign legatee.</p> <p>In ah action by an administrator with the will annexed and testamentary trustee for an accounting and the confirmation of various settlements, agreements and releases, where one of the legatees is dead, a legatee of the deceased legatee is not a necessary party; but, where the deceased legatee resided in another State and his will was proved there and letters testamentary were issued there to the executors named in his will, a legatee under it may properly be joined as a party defendant, having an interest in the controversy which is adverse to the plaintiff.</p>

<p>Deeds — Lands, tenements and hereditaments granted — Amount granted generally — Lines presumed to be straight; Easement generally — When easement granted.</p> <p>Easements: Nature and creation — Creation by implication: Location, maintenance and extent of right — Extent of right acquired by grant — Construction of grant.</p> <p>Estoppel — Equitable estoppel and estoppel in pais — Facts creating estoppels— Contracts — Conveyances not operating as estoppels by deed and agreements collateral to them.</p> <p>Where the owners of a lot upon which stands a double, frame dwelling-house, convey the easterly part thereof, by a description commencing at the southwest corner of the adjoining premises and running along the same to the rear of the lot, thence westerly along a stone wall twenty-nine feet, “ thence southerly along the center of a dwelling-house parallel with the first mentioned line one hundred and twenty-five feet to the Post road,” and thence to the place of beginning; and where the third course, if drawn parallel with the first mentioned line, would not pass through the center of the dwelling-house, but the center of the dwelling-house would lie wholly west thereof, the west line of the parcel conveyed is to be controlled by that portion of the description designating it as parallel with the east line; and it is to be concluded that the parties to the deed intended that the dividing line should not be a bulging out or irregular or zigzag line instead of a straight one, but rather that, in their supposition that the straight, parallel line would run through the center of the house, they were mutually mistaken.</p> <p>In view of the situation of the house, the deed should be so construed as to carry with it, not only the fee of the land east of the parallel line, but also an easement upon the premises west of the line, so far as might be necessary to maintain the easterly house as it then was, until its removal.</p> <p>Where, in preceding litigation involving the correct location of the line between the two parcels, a settlement was made by which the defendant released to the plaintiff, who had torn down his part of the building and was constructing a new building, the west wall of which extended to the center line of the old building, two closets extending beyond the center line of that building; and the plaintiff, for the mutual advantage of both parties, utilized existing chimneys standing on both side of; the center line, the defendant is estopped from questioning tie correctness of the location of the plaintiff’s westerly wall, but is entitled to make any and every use of the premises up to the true line, except such use as the plaintiff may have made of the premises with her consent.</p> <p>In such a case, however, the defendant has no right to attempt to destroy the chimneys or to do anything with them upon her side of the line which would impair the plaintiff’s use of them in connection with his building.</p>

Demurrer to the sufficiency of certain portions of the plaintiff’s reply to the defendants’ answer, setting up alleged counterclaims to the plaintiff’s alleged cause of action.

<p>Contracts — Parties and persons by whom or against whom enforceable' — Promise for benefit of third persons and rights of third persons — Agreement between underwriters and wrecking company.</p> <p>Pleading — Matters relating to .pleading generally — Conclusions of law ■ —Allegation that defendant acted as trustee.</p> <p>Where two vessels, insured against marine perils, were stranded by a violent gale and the owner had the right under the terms of the policy to release the vessels, for the expense of which the insurers agreed to contribute according to the amount of their insurance; and where the owner while the vessels were aground waived its right to release them by its own efforts and consented that the insurers might release them and for that purpose employ a certain wrecking company, and the insurers thereupon contracted with the wrecking company, which had previously submitted to them a written proposal to do the work, the insurers in making such contract did not act as trustees of an express trust, nor was the contract made for the benefit of nor is it enforceable by the owner; and the allegations to that effect, in the answer of the insurers in an action to recover the contract price, are conclusions that are not supported by the facts, which are pleaded.</p>

<p>Corporations — Officers and agents — Remedies against officers and actions to enforce their liability — Complaint in action against director.</p> <p>In an action by a corporation against one of its officers, the complaint, in which it is alleged that the defendant paid out the funds of the corporation to one whom he well knew was not authorized to receive or disburse the moneys of the corporation, nor a creditor, nor acting as agent for any creditor of the corporation nor otherwise authorized to "receive or disburse said money, sufficiently states a cause of action against the defendant, although it is not in terms alleged that the payment was made wrongfully, improvidently, carelessly, negligently or without authority.</p>

<p>Deceit — Persons to whom representations must he made — Representations to the public.</p> <p>In an action in which the complaint alleges that the plaintiff was induced to purchase certain shares of the capital stock of a corporation by means of false and fraudulent representations of the defendants contained in a certain prospectus issued and circulated by them touching the affairs of the corporation, with intent that the statements contained in said prospectus should be believed and relied on by the public and by the plaintiff and that the public and the plaintiff should be thereby induced to purchase the bonds and stocks of the corporation, the complaint states a cause of action, although</p> <p>the prospectus purports on its face to be simply an invitation to the public to subscribe for bonds and does not invite subscriptions for stock.</p>

<p>Former adjudication — Adjudications operative as bar or as conclusive evidence — Verdict without judgment — Conclusive upon trial of remaining issues.</p> <p>In an action by a husband for an absolute divorce, where the wife interposes a counterclaim for a separation on the ground of abandonment, a jury having found against the plaintiff on the question of defendant’s alleged adulter}-, he may not to justify his abandonment introduce proof of conduct on the part of defendant after plaintiff’s abandonment which he proved before the jury to establish his allegations of defendant’s adultery.</p>

<p>Divorce — Opening default and modification, revocation or vacation of judgment: Grounds and propriety — Collusion, fraud or misconduct; Laches in moving against decree.</p> <p>A judgment of divorce will not be' set aside at the suit of the defendant, who agreed that she would allow the divorce and make no defense upon the plaintiff’s agreement to pay her a sum of money and provide for her, for plaintiff’s failure to keep his agreement.</p> <p>Plaintiff’s unexcused delay of five years in bringing her action is such laches as should defeat her action, where the defendant has remarried in the meantime and had issue.</p>

<p>Executors and administrators—Actions and proceedings in general — Authority, right and duty—Action against corepresentative—Action at law.</p> <p>An executor cannot maintain an action against his coexecutor to recover money which the latter holds and claims to have been given her by the testator in his lifetime.</p>

<p>Fidelity bond — Formation and discharge of contract or sureties: Warranty by obligee — What constitutes; Fraud or concealment — By officer whose fidelity is insured.</p> <p>Pleading — Matters relating to pleadings generally — Conclusions of law—Allegation that obligee in fidelity bond warranted truth of statement.</p> <p>A statement made by the cashier of a bank to a surety company, which had given a bond insuring the fidelity of the bank’s employees, at the expiration of the period for which the bond was originally-issued, to the effect that its books had been examined and found to be correct, is not a warranty, where it is not part of the bond, nor referred to in it, nor required by the terms of the bond as a condition of its renewal.</p> <p>An allegation in the answer of the surety company, in an action by the bank to recover for losses sustained during the period of a renewal of the original bond, that the bank warranted the truth of such statement, is an allegation of a conclusion and not a fact.</p> <p>The rule that a misrepresentation of a material fact, made to induce an insurance company to accept a risk, avoids the policy, though applicable to fidelity bonds, is not applicable to a case where the misrepresentation is made by the officer whose fidelity was insured and for whose defalcation the claim is made.</p>

<p>Chattel mortgages — What constitutes a mortgage — Mortgage or lien.</p> <p>Landlord and tenant: Termination oí relation—Notice — Sufficiency: Bights, duties and liabilities in regard to premises — Repairs, insurance and improvements — Improvements by tenant — Covenants to surrender improvements — Effect of severance of improvements by fire.</p> <p>An agreement contained in a lease of real property that, in case tlie lease shall be terminated before a certain date, the erections placed on the leased land shall become the property of the lessor does not partake of the character of a chattel mortgage and need not be filed as such, even though it operates upon personal property.</p> <p>A provision in the lease that, if the tenant fails to pay for power supplied by the lessor when due, the lessor may terminate the lease on thirty days’ notice is a conditional limitation and not a forfeiture; and where, upon the tenant’s default, the lessor gives notice in accordance with the terms of the lease, the lease is thereby terminated without the formalities of a common-law demand.</p> <p>And where the erections placed on the leased land are made for and devoted to certain manufactures by a peculiar process and can be utilized for no other purpose; and fixtures and appliances are built into and constitute part of the plant without which the buildings would be of little value, the fixtures and appliances as well as the buildings are subject to the provisions of the lease and become the property of the landlord under the terms of the lease, though physically severed from the land by a fire which destroyed the combustible part of the plant.</p>

<p>Accord and satisfaction — What constitutes—Acceptance of debtor’s notes or bond.</p> <p>Where two of three persons jointly interested in a business enterprise buy out the interest of the third person, paying him therefor the value of his interest computed upon a certain basis, and thereafter one of the remaining parties agrees to buy out the other and to pay therefor the value of the seller’s interest computed on a certain basis on that day, but with a provision for readjustment if the computation should appear unjust to either side on a certain later day, when it was supposed adequate data would have been collected for a correct estimate of its value; and where on the day appointed for such readjustment such data are still inadequate, but a computation is then made with the information at hand and a check and notes are given for the purchase price thus ascertained and the seller gives his receipt therefor, the buyer at the same time expressing dissatisfaction and the seller promising a further readjustment when the facts should be more fully ascertained, such settlement and giving notes and taking receipt do not conclude the buyer, nor prevent him from subsequently demanding a readjustment, in accordance with the seller’s promise, and from recovering back whatever had been paid in excess of the amount due as disclosed by events subsequently occurring.</p>

<p>Libel and slander — Trial and review — New trial — For newly-discovered evidence.</p> <p>New trial — Grounds — Newly-discovered evidence — In action for slander.</p> <p>Where, in an action for slander in charging plaintiff with being an unchaste woman and particularly with having had illicit intercourse with one It., a married man, an unusually large verdict in plaintiff's favor indicates that the jury believed that she was a chaste and pure woman and that her relations with R. were purely Platonic, the discovery, after the trial, of love letters claimed to have been written by plaintiff to R., found in his pocket-book in his bedroom and which justify an inference of immoral conduct between the two, is ground for a new trial, though plaintiff not only denies the genuineness of the letters but declares them to be spurious.</p>

<p>Mechanics’ liens: Notice of lien — Nature and amount of work: Foreclosure; Hearing — Jury trial — Waiver; Judgment — Rendition of personal judgment — On failure to establish lien.</p> <p>Where a notice of mechanic’s lien claims “ for the principal and interest of the value and agreed price of the labor performed and to be performed ” and “ the labor performed and to be performed is carpenter work and floor laying, and the agreed price and value thereof is thirty-seven hundred dollars,” the lien is invalid for the reason that the value or agreed price of the labor performed is neither stated nor can it be inferred from a reading of the notice.</p> <p>In such a ease where the plaintiff has failed to establish a valid lien, in an action brought to foreclose the lien he claimed, the defendants’ demand for a jury trial of the remaining issues, made at the close of the plaintiff’s case, comes too late, as, under section 1.009 of the Code of Civil Procedure, such right was waived by a failure to make the demand therefor before the production of any evidence.</p> <p>Plaintiff having been refused permission to complete the work, is entitled in an action to foreclose his alleged lien, to a judgment against defendants for the value of the work actually performed.</p>

<p>Action to have a deed absolute in form declared a mortgage and for an accounting.</p>

<p>Set-off and counterclaim — Claims arising out of same transaction or connected with same subject-matter.</p> <p>Where H. recovered judgment for negligence against the plaintiff and defendant herein as joint wrongdoers and, upon the theory that defendant was primarily liable for the injuries to H., plaintiff sues to recover the amount of the judgment in the negligence action which was collected out of plaintiff’s property and also the expenses and disbursements incurred in defending the same, the defendant is entitled to counterclaim for moneys paid by it before judgment, in an action brought by B. to recover for injuries received at the same time and because of the same negligence which injured H., on the theory that plaintiff was primarily liable for the injuries to B., although such payment was made after the decision of the Court of Appeals affirming the judgment in favor of H.</p>

<p>Action for false imprisonment.</p>

<p>Taxes — Tax titles: Purchaser’s title — Mature of title: Tax deeds — Presumption of regularity of sale — Statute operative as statute of limitation.</p> <p>Trespass—Actions — Eight of actions and defenses—Defenses—Assignment of contract by vendee.</p> <p>In an action by the people for trespass for cutting a tree on lands in the forest preserve held under a tax deed, where the defendant claims under a deed from the same person to whom the lands were assessed for taxes, both parties are estopped from denying the title of the former owner.</p> <p>In such an action the defendant may not dispute the State’s title until he has shown that he was the owner of the land at the time of the assessment or that he has title under or from the former owner.</p> <p>An assigmnent by a vendee of the former owner to defendant of a contract to convey which implied a right to cut timber upon the land, although the contract was not shown to have been performed or to have ripened into a title when the assignment was made, would nevertheless justify the defendant’s act in cutting the tree if the State did not have title to the land.</p> <p>Where the State took title under the Comptroller’s deed in 1890, as to all errors and irregularities in the assessment against the former owner which might have been cured on application to the Comptroller under section 132 of the Tax Law, the provisions of section 131 of said statute operated as a statute of limitation.</p>

<p>Action in trespass for cutting a tree on State lands.</p>

<p>Action to cancel a deed of trust.</p>

<p>Action to compel specific performance of a contract for the sale of real estate.</p>

Proceedings on the return of a writ of habeas corpus brought to release the relator from the custody of the sheriff of Monroe county.

<p>Betting and gaming — Particular forms of gambling — Betting at race course — Oral bet.</p> <p>Section 351 of the Penal Code was intended to prohibit bookmaking and pool-selling, that is, the business of taking and recording bets and wagers and acts which are incidental to that business, and does not make it a crime to receive a sum of money as the result of a bet upon a horse race which was made and accepted orally.</p>

<p>Demurrer to indictment.</p>

<p>Negotiable instruments — Actions — Presumptions and burden of proof — As to consideration.</p> <p>Where a promissory note expresses that it was made for value received, it is presumed that it was given for a valuable consideration.</p> <p>But where the plaintiff, in an action on a promissory note against the personal representatives of the maker, does not stand upon such presumption, but offers in evidence an assignment of a mortgage to the maker as the consideration for which the note was given, and the proof leaves it in doubt whether the assignment was ever in fact delivered, and the value of the mortgage or interest assigned appears to be trifling and out of proportion to the amount of the note, and the proof indicates that the minds of the parties never met and the transaction was never completed, the court is justified in finding that the note was without consideration and that, if the'assignment was in fact delivered, the transaction was induced by false representations.</p>

<p>Witnesses — Disqualification by reason of confidential relation — Between attorney and client — Where communication has no reference to professional employment.</p> <p>An attorney who has once transacted business for a person who thereafter becomes a necessary party defendant in an action is not privileged to withhold information which he may have as to the address of his client, when it is sought for the purpose of serving her with process, under an order providing for taking his deposition.</p>

<p>Betting and gaming — Particular forms of gambling — Betting on golf game — Casual record of bet.</p> <p>One who makes a bet with another upon the result of a game of golf about to be played between them and records or registers said bet on a card does not thereby violate section 351 of the Penal Code which is confined to the recording of the bets of all comers as a practice or business.</p>

<p>Application for an order to restore a child, committed to a reformatory, to his parents.</p>

<p>Civil service — Civil and criminal proceedings — Remedies — Defenses — Laches.</p> <p>Where those who might have been entitled to employment by the Public Service Commission of the first district, in consequence of their previous employment as gas meter inspectors or testers under the Inspector of Gas Meters of the State, neglect to assert their rights by application for a writ of mandamus for eleven months, during which time the commissioners have, by selection front the State civil service list, appointed other persons to such positions, their application for a mandamus thereafter will be denied on the ground that they have been guilty of laches.</p>

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

<p>Application for an order cancelling a tax levied against a nonresident.</p>

<p>Marriage — In general — Requisites and validity — Filing of contract — Consequences of failure.</p> <p>Where a contract of marriage was not filed within six months, but, prior to the expiration of such period, the provision of the statute declaring the marriage in such case absolutely void was repealed, said marriage, though possibly voidable because of failure to file the contract, was not void. So held upon a motion for alimony and counsel fees.</p>

<p>Witnesses — Attendance and privileges of witnesses and production of documents — Exemption from service of process or papers — Loss of privilege by delay.</p> <p>Where defendant, a nonresident, while in attendance on a trial in this State as a party and a witness, was served with the summons in another action in the Supreme Court and remained in this State many days, the last ten or twelve of which he had full knowledge of his privilege and right to have the service vacated, his motion for such relief, made after he had apparently fully completed his other business and at a time when it was too late for plaintiff to obtain service of another summons upon him, will he denied, as defendant will be deemed to have ratified the service of the summons.</p>

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

<p>Nuisance —Actions for abatement, injunction and damages — Injunction.</p> <p>A large building cannot be removed without the creation of some dust; and, where the defendant, in the conduct of its operations in removing a structure near the plaintiff’s place of business, is availing itself of every reasonable means of lessening the Inconvenience to persons in the vicinity, plaintiff’s application for an injunction to restrain the conduct of the work will be denied.</p>

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

Motion by defendants for an order directing a reference to ascertain the damages sustained by reason of a preliminary injunction granted in this action.

<p>Verification — Form — Verification by agent or attorney — Stating grounds of belief — Necessity for showing information from one having knowledge.</p> <p>A verification of a pleading by one who is not a party to the action should show that the affiant derived his information which he states as the grounds of his belief from some person who had knowledge of the facts.</p>

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

<p>Motion for distribution of proceeds of sale in an action for partition.</p>

<p>Verification — Defects, objections and amendments — Effect of defectively verified answer; Remedy for defective verification.</p> <p>An affidavit of verification to an answer taken by the defendants’ attorney is not a nullity and an answer so verified cannot be disregarded, nor can a judgment in such a case be entered for plaintiff as upon defendants’ default.</p>

Motion by trustees in bankruptcy of defendant Atlantic Cement Company for an order vacating judgment of sale and deficiency judgment in foreclosure, and substituting said trustees, in place of said defendant, as defendants herein with the right to interpose an answer upon the merits.

<p>Stay of proceedings — Interlocutory stay — Stay to await event of another proceeding — To await application for leave to appeal; Security.</p> <p>Where plaintiff has seasonably applied to the Appellate Division of the Supreme Court for leave to appeal to the Court of Appeals from a judgment against him and the application has been entertained but a decision may not be rendered for about two months, the Special Term may grant to the plaintiff a stay of proceedings in the-meantime.</p> <p>Upon granting such stay the court required plaintiff to give a bond in $300 to indemnify the defendant for costs at the Appellate Division as taxed, and also for any loss or damage to defendant if the application should be denied.</p> <p>Motion for reargument.</p>

<p>Foreign corporations—Actions and proceedings — Demurrer.</p> <p>Jurisdiction — Jurisdiction of particular courts — City and Marine courts—Actions by foreign corporations.</p> <p>In an action by a foreign corporation to recover of a domestic corporation for goods sold and delivered, the complaint is not demurrable for its failure to allege that the plaintiff had procured the certificate required by section 15 of the General Corporation Law unless it appears by the allegations of the complaint that the plaintiff is doing business in this State, or that the contract which is the basis of the action was made in this State.</p> <p>The City Court of the city of New York has jurisdiction of an action by a foreign corporation to recover judgment for a sum of money only.</p>

<p>Action for damages.</p>

<p>Insane persons — Property and liabilities of incompetents—Actions by committee.</p> <p>Judgment: Docketing — Omissions or mistakes — Defendant having different ■ names — Effect of docketing against one name as to lands standing in another: Lien — Property or interest affected and extent of lien — Legal title wrongfully in defendant.</p> <p>The committee of a lunatic may invoke the equitable jurisdiction of the court for the protection of the lunatic’s estate from the neglect or mistake of the committee without the aid of section 2340 of the Code of Civil Procedure which seeks only to authorize the committee to bring such actions and institute such proceedings as the lunatic would have had the right to bring or institute had no committee been appointed.</p> <p>A judgment for deficiency upon a mortgage foreclosure docketed against Amanda H. will not bind lands, subsequently purchased by the defendant and paid for in part by a purchase money mortgage and the balance with moneys in her hands as committee and the title to which was taken by her in the name of Melvina H., where it does not appear that she employed a different name to avoid the incumbrance.</p> <p>In such a case, where the judgment creditor issues an execution and seeks to sell the property so purchased with the funds of the lunatic and where the committee had previously sold the lands so purchased to one who had full knowledge of the facts and who assumed the payment of the purchase money mortgage given by the committee as part payment, and it appears that the judgment for deficiency arose from the purchase by the judgment creditor of the mortgaged premises for $2,000 on which he had previously loaned $4,500, the court will, at the suit of the committee, declare a lien in favor of the committee to the extent of the lunatic’s money paid by her upon the purchase of the real estate in question prior to any claim under the deficiency judgment, or the title of the defendant to whom she sold the property, and declaring void and setting aside as to the lunatic all proceedings under the deficiency judgment and the deed to the purchaser from the committee.</p> <p>Whether the docketing of a judgment for deficiency upon mortgage foreclosure upon the order confirming the report of sale without the entry of a formal judgment suffices to charge the real property of the defendant, queere.</p>

<p>Wills — Interpretation and construction: Designations and descriptions of property, funds, etc.— Particular terms of doubtful meaning — “ Trust funds ” as denoting “ trust estate ” : Terms fixing plurality or severalty of ownership or right — Entire or several character of trusts.</p> <p>A provision in the will of a testatrix that in a certain contingency the 'trustee shall pay over “ all of the aforesaid trust funds ” is not to be taken as importing the creation of a single trust fund and thereby invalidating the trust when separate trust funds might otherwise be imported from the other provisions of the will and the trust thereby upheld.</p> <p>The words “ trust funds ” may be taken as signifying “ trust estates ” and not “ trust moneys.”</p>

<p>Suspension of power of alienation — Conditions determining validity of suspension — Limitation suspending alienation for term of years.</p> <p>Wills — Interpretation and construction: Designations and descriptions of persons, objects and purposes — Rules and implications — Inaccuracies of description — Inaccuracies in corporate name: Terms defining the nature and quality of estates or interests — Fiduciary or individual legal or equitable and other qualified interests — Trusts implied.</p> <p>Where an unmarried testator, who long resided in California and amassed a substantial fortune there, from 1894 until his death, in 1905, spent much of his time in Europe collecting works of art, and by his will, executed in 1904, bequeathed his art collection to the "Art Museum of the City of San Francisco, California,” together with a sum of money to provide suitable rooms for the collection and to keep it in repair, and further provided by said will that, if the executors deemed it advisable, testator’s nephew should act as superintendent or director, and, in case he was willing, that the executors should invest a certain sum and annually pay the • interest thereon to the nephew as salary; and where it appears that at no time was there an “Art Museum of the City of San Francisco, California;” that the only institution actually meeting the description of an art museum in said city at the time when the testator left there was the “ San Francisco Art Association ” of which close relatives of the testator were members and that his nephew had obtained his technical training as a sculptor in the Mark Hopkins Institute of Art, a school affiliated with said art association and that he assisted testator in making his collection and had often spoken of the art association where specimens of his work as a sculptor were exhibited, it will be held that the testator, by the words “Art Museum of the City of San Francisco, California,” intended to describe the “ San Francisco Art Association.”</p> <p>Where the testator bequeathed the residue of his estate to his executors and trustees in trust to invest the proceeds thereof and use the income for supporting and aiding his needy kin and adding unexpended income to the principal and directed that at the expiration of fifty years from his death the fund should be equally divided among his kin within a prescribed degree of kinship, the fifty years limitation of the trust not being measured by lives rendered the trust itself invalid and unenforceable; and, it being apparent that said limitation and a distribution at the expiration of that period were integral parts of a complete scheme for the disposal of the residuary estate, and that it could not lawfully be disposed of upon a construction of the will which would be in substantial harmony with testator’s intention, as to such part of his estate he died intestate.</p> <p>Where a clause of the will bequeathed to A the sum of $5,000 for the purpose of dividing the sams among such needy relatives on the parental side of testator’s deceased mother as A in his discretion and judgment might select, no trust was created; and, upon the death of A after the testator, the legacy was payable to the executors of A.</p>

<p>Carriers — Carriage of passengers: Contract for transportation— Right to seat — Waiver by remaining where there is no vacant seat: Liability for personal injuries to passengers—Actions by passengers for personal injuries — Instructions—As to care required of carrier — Negligence as question of law.</p> <p>The term “ law of the case ” is a precise application of the law as laid down by the trial judge and, if erroneous, is ground for reversal, although, given at the request of the complaining party, it narrows the scope of his liability, and although upon the facts and the law a recovery would otherwise be upheld.</p> <p>In an action by a street railway passenger, holding a ticket entitling her to ride on a holiday over defendant’s road from one city to another, who, insisting on returning on the first car, which was crowded, was compelled to stand during all the journey, and, because of tlie jostling and fatigue incidental thereto, whose health was seriously impaired and who contracted, as alleged, a disease from which she has since suffered, and all of whose claims to recover for breach of contract rest upon the alleged failure of defendant to provide her with a seat, a charge, on defendant’s request, that defendant was not negligent “ for not providing and using more power and ears and other equipment on the night in question, and by failing to do so didn’t omit to discharge any obligation it owed the plaintiff,” withdraws from the jury the only ground of recovery and is erroneous.</p> <p>The plaintiff could have declined to give up her ticket, and, upon the first opportunity, could have left the car and held defendant liable for a breach of its contract to carry; but she could not refuse to surrender her ticket ana ride free; and, having accepted transportation in a crowded car and surrendered her ticket, she waived strict performance so far as her contract rights were concerned; and the only duty defendant then owed her was the duty it owed to a passenger who had contracted to ride standing in one of its cars.</p>

<p>Motion by defendant for permission to inspect the minutes of the grand jury.</p>

<p>Motion to set aside an indictment.</p>

<p>- Appeal from a judgment of conviction in bastardy proceedings.</p>

Motion to confirm the report of commissioners in a proceeding for the condemnation of real property for railroad purposes.

<p>Election of officers — Nominations and preparation of official ballot — Primary — Procedure — Imprint upon ballot.</p> <p>The imprint upon the face and inside of ballots at a primary election following the names of the candidates voted for, of the " union label ” such as is ordinarily used to designate articles manufactured by or work done by union labor, when it does not appear to have been placed upon the ballots for the purpose of identification, does not render the ballots void nor authorize their rejection by the board of inspectors.</p>

<p>Taxpayer’s action. The opinion states the case.</p>

<p>Application by the plaintiff for an injunction pendente lite.</p>

<p>Master and servant — The relation: Duration of employment and termination of relation — Loss or change in master’s business: Actions for wrongful discharge — When right of action accrues.</p> <p>In an action at law brought by the superintendent of the defendant’s business to recover his wages of $40 a week and one-third of the profits of the business, where during the term of his employment the defendants discontinued their business and terminated the plaintiff’s services, held that his cause of action accrued immediately upon the termination of his services and he was not compelled to await the final settlement of the business affairs and all adverse claims that might be made against the defendants in connection therewith.</p> <p>In such a case the court may order a reference for the purpose of an accounting and the determination of the profits to which the plaintiff is entitled under his contract of employment.</p>

<p>Contracts — Validity of contracts — Public policy in general — Contract between telephone companies.</p> <p>Contracts between public service corporations which involve incidentally a partial restraint in competition are not obnoxious to public policy, if the main object of the agreement is lawful and beneficial to the public and such restraint is only a minor incident and fairly necessary for the accomplishment of the principal object of the agreement.</p> <p>Where each of two telephone companies operating in different territory, being desirous of extending its service into the field of the other, agreed to connect their lines by an extension to a certain point and, upon the making of such connection, further agreed that the lines of both companies should be so operated that service should be given from all points located on the lines of one to all points on the lines of the other company, the proportion of tolls to be received by each company for messages passing over the connected lines to be fixed by contract or left to adjustment; that neither party was to compete with the other in the telephone business or take subscribers in territory occupied by exchanges or companies with which the other had contract relations; and that neither party should, by contract with any other person, firm or corporation, impair any of the privileges and advantages acquired by either under said agreement; and where it appears that neither company had a monopoly in the field which it occupied, nor had both a monopoly of long distance business after the connection of their lines so made, the provision against competition is only incidental and contributory to the -attainment of the main object of the agreement, an extension of the business of each party through the connection of their two systems, and such restraint upon competition afforded a reasonable and necessary security for the performance of the obligations of agency assumed by the other, and to protect each against the improper use of the knowledge and instrumentalities placed in the hands of the other by virtue of the contract, and is not condemned by the statutes nor by the common law.</p> <p>Such contract does not become void by the purchase of the lines and properties of one of the parties to said agreement by a third telephone company, whose.more extended field of operation may make it an actual rival of the remaining original party to the agreement.</p>

<p>Demurrers to complaint.</p>

Action to compel acceptance of a reconveyance of real estate and return of the purchase money because of failure of title.

<p>Deeds — Lands, tenements and hereditaments granted — Deed with reference to map showing way — Effect as creating easement — Extent of easement.</p> <p>Where plaintiff and defendant are the owners of property which formed at one time part of another tract owned by one P., who filed a map in the office of the county clerk dividing the tract into various parcels, and on said map was shown a private road known as W avenue, together with numerous other private roads by which the various parcels of property as subdivided were bounded; and it appears that plaintiff bought prior in time to the defendant and according to the map as filed, and that' defendant owns parcels of land bounded by either side of W avenue, but plaintiff’s parcel does not front upon the portion of W avenue lying between the defendant’s parcels nor is such portion of W avenue necessary to enable plaintiff to obtain access to the public highway, plaintiff cannot maintain an equitable action to enjoin defendant from closing up W avenue by the erection and maintenance of a fence thereon between defendant’s respective parcels of land.</p>

<p>Demurrer to complaint. The opinion states the case.</p>

<p>Fraternal and mutual benefit associations—.Designation and change of beneficiary and right to benefits — Death of beneficiary before insured — Designation of new beneficiary — “ Relative ” includes brother-in-law; Change of beneficiary — Waiver of objections to change.</p> <p>Where under the by-laws of a fraternal benefit association a member has an absolute right, upon the death of the original beneficiary, to designate a new beneficiary and obtain a now certificate payable to the new beneficiary, and the by-laws confine the designation of a new beneficiary to a “ relative or dependent ” of the member, the word “ relative ” is broad enough to include a brother-in-law of the mejnber.</p> <p>Where, after the death of the original beneficiary, the member authorized his brother-in-law to take the benefit certificate to the appropriate subordinate council and have it surrendered in order that a new certificate might issue to the brother-in-law and the certificate was surrendered but, before a new' one was delivered although actually issued payable to the new beneficiary, the brother-in-law, the member died, and the by-laws contain no provision that the new designation of beneficiary or the surrender of the original bond should be in writing, the brother-in-law is entitled to recover the amount called for by the certificate of membership.</p> <p>In any event if the defendant association did not intend to accept the brother-in-law as beneficiary it should have so indicated at once, instead of receiving assessments on the original certificate after it was surrendered and before the new one was issued; and, having the power to waive the provisions of its bylaws in that regard, the acceptance of the assessments falling due on the certificate until after the death of the member will be deemed such a waiver.</p>

<p>Injunction — Preliminary injunction — Grounds and matters considered —‘Acts in respect to which no final judgment is prayed.</p> <p>The prosecution of an action pending in a foreign territory against defendants two of whom reside .there and affecting real estate located there may not be stayed in an action brought in this State for a partnership accounting even though it be between the same parties.</p> <p>Plaintiff, a resident of Kentucky, claiming that he and. certain of the defendants formed a partnership for the acquisition and development of mining properties and that his alleged partners had transferred to the corporation defendant, which his partners had organized, a portion of the property located in New Mexico affected by this action, brought an action for a partnership accounting. After the commencement of said action plaintiff by proceedings instituted in New Mexico against the company and others sought relief in the partnership action by way of an ancillary bill of complaint. Demurrers to the bill were sustained and after the filing of an amended bill the suit was discontinued without prejudice. Thereupon the company commenced an action in New Mexico against the plaintiff herein and two other defendants, residents of New Mexico, and by a complaint alleging corporation ownership of certain mining claims and real property located in said territory and that the defendants made an adverse claim thereto in said suit, sought to have its title forever quieted and set at rest. The plaintiff herein filed no supplemental bill of complaint in which injunctive relief was sought. Held that his motion for an injunction restraining further prosecution of the action brought by the corporation in New Mexico based upon affidavits alone will be denied.</p>

<p>Pleading — Supplemental pleadings — Supplemental complaint — Additional or more extensive relief.</p> <p>Where facts occurring after a complaint has been served entitle the plaintiff to more extensive relief, the motion for leave to serve a supplemental complaint will be granted without consideration of the question whether the facts entitle the plaintiff to the relief sought; and the objection that the court is without jurisdiction of the action because the defendant is a foreign corporation will not be entertained.</p>

Motions for injunction and for an order compelling plaintiff to receive a demurrer to plaintiff’s supplemental and amended complaint.

<p>Demurrer to complaint.</p>

<p>Mechanics’ liens — Notice of lien — Time of filing — Work or materials furnished on running account — Under entire contract — What constitutes entire contract.</p> <p>Where a lumber dealer delivers to two partners lumber for a building they are constructing under a contract to furnish them with all the lumber they require for the job, and before the building is finished they dissolve partnership and one of them continues the work and the lumber dealer declines to furnish the lumber . for the rest of the job on the sole credit of the partner continuing the work, except a small quantity for immediate use which he does furnish, a notice of lien filed by the dealer within ninety days after the furnishing of such small quantity, for the balance due for all the lumber furnished for the job, is in time to effect a lien for the whole of such balance.</p>

<p>Buildings — In general — Enforcement of building regulations and remedies for violation — Violation of Tenement House 'Law — What constitutes; Consequences of violation.</p> <p>The provisions of section 40 of the Tenement House Act, prohibiting the storage, use or handling of combustible materials, are not violated by having on hand, temporarily, for a moving picture exhibition, and using at the place of exhibit photographic films under proper precautions to prevent ignition.</p> <p>The violation of said section is not ground for the revocation by the tenement house department of the approval, theretofore duly given, of plans for the alteration of a building where such violation takes place.</p>

<p>Action to recover damages.</p>

<p>Damages — Exemplary damages — Trespass on land — Punitive damages.</p> <p>Justices of the Peace — Procedure in justices’ courts — Pleading — Plea to jurisdiction — Plea of title — Necessity of undertaking.</p> <p>New trial — Grounds — Misconduct of or affecting jury — Treating jury to cigars.</p> <p>Trespass — Acts constituting trespass and liability therefor — Persons liable — Trespasser ab initio.</p> <p>In an action in a justice’s court for trespass upon- real estate, where defendants alleged in their answ'er in justification of their acts that the premises had been used by the public for more than twenty years as a highway, and that the defendants had, therefore, the legal right to enter thereon and remove obstructions therefrom, but where the defendants did not deliver to the justice an undertaking, as provided by section 2952 of the Code of Civil Procedure, they could not give evidence showing that the public had the right to use the premises as a highway.</p> <p>In such a case, wdiere the uncontradicted evidence show'ed that the defendants entered upon premises which were in the possession of plaintiff, and had been for three years, and showed the entry thereon by defendants, in the absence of evidence showing a right to enter, plaintiff was entitled to a verdict for at least nominal damages.</p> <p>And where it appeared that the defendants entered upon the premises with threats of violence and addressed insulting and abusive language to the plaintiff and his wife, the plaintiff was entitled to recover exemplary damages; and it was not necessary or proper to take the opinions of witnesses as to the amount of such damages.</p> <p>In the case of the obstruction of a legal highway, those desiring to use it should apply to the highway commissioners to cause the removal of such obstruction and have no right to take the law’s enforcement into their own hands.</p> <p>Where, in an action before a justice of the peace, the attorneys for the prevailing party treated the jurors to cigars twice in open court during the progress of the trial and before the jurors had retired to deliberate on their verdict, the verdict should be set aside.</p>

<p>Extradition — Detention — Preliminary warrant — Sufficiency of affidavit.</p> <p>The constitutional provisions and statutes regulating interstate extradition apply only to persons legally charged with a felony or other crime; and, unless so charged, they cannot be apprehended here as fugitives from justice or delivered to another jurisdiction.</p> <p>An affidavit to obtain a warrant preliminary to extradition charging one with the commission of a crime is insufficient unless facts are stated showing the sources of the information and the grounds of belief; and where it was predicated upon an information sworn to in the State where the alleged crime was charged to have been committed, upon belief only that he had committed the crime, without facts showing the source of information or the grounds of belief, the magistrate here had no jurisdiction and defendant was entitled to be released upon habeas corpus, unless otherwise held.</p>

<p>Criminal law — Jurisdiction Grade of offense conferring jurisdiction — Petit larceny charged as second offense.</p> <p>Petit larceny charged as a second offense is still petit larceny, though the fact of defendant’s prior conviction authorizes the court to impose a more severe sentence than could he imposed upon the first conviction.</p> <p>The police court of the city of Eochester has exclusive jurisdiction to try a defendant charged with petit larceny as a second offense, unless the case is removed to the grand jury under section 67 of the Code of Criminal Procedure.</p> <p>Upon conviction in the police court, the defendant may, under section 688 of the Penal Code, be sentenced to the Monroe county penitentiary for a term of from one to two years.</p> <p>Where,, in such case, the court held defendant to await the action of the grand jury, upon the assumption that petit larceny charged as a second offense is a felony, defendant is entitled to be discharged on habeas corpus.</p>

<p>Application for a writ of certiorari to review the action of a county treasurer in refusing to issue a liquor tax certificate.</p>

<p>Constitutional law—Deprivation of life, liberty or property without due process of law—Regulating erection of buildings — Height of sky signs.</p> <p>The restriction of the height of sky signs for advertising purposes to nine feet by municipal regulation has real relation to the , public safety, and is nob unreasonable in its operation, and is within the police power.</p>

<p>Municipal corporations — Police department — Retirement on pension.</p> <p>A member of the police force of the city of New York, who, of Ms own motion, obtains retirement after service of more than ten and less than twenty-five years, as provided in section 355 of the Greater New York Charter, is entitled to a pension of one-half of his salary on the day of his retirement; but, if removed for physical disability under section 154, he is entitled only to such pension as the police commissioner grants him, not exceeding one-half nor less than one-fourth of his rate of compensation per annum.</p>

<p>Motion to vacate an order for substituted service of a summons and complaint.</p>

<p>Mechanics’ liens — Bond on deposit to avoid lien — Cancellation of bond.</p> <p>The court is without authority to cancel an undertaking given to discharge a mechanic’s lien pursuant to subdivision 4 of section 18 of the Lien Law, although the time to bring an action to recover a judgment against the property on the claim contained in the notice of lien has expired.</p>

<p>Motion to vacate an attachment and to dismiss the action.</p>

Motion by defendant to vacate a warrant of attachment, and a cross-motion by the plaintiff to file a supplemental or amended affidavit nunc pro tunc and to amend nunc pro tunc the recitals contained in the warrant of attachment.

<p>Injunction — Who and what may be enjoined — Acts of private associations and corporations or officers thereof — Actions by customers against gas company.</p> <p>Where a municipality, to which illuminating gas is being furnished for street and public building lighting purposes by a gas company, refrains from instituting proceedings for the establishment of a rate for gas consumed; and where a former determination by the Commission of Gas and Electricity fixing a rate of ninety-five cents per thousand feet has been disregarded by both parties, owing to an adjudication that the statute under which it was made was in many particulars unconstitutional; and where the evidence taken at the time of the determination by the commission shows that the company would be justified in charging a rate of at least seventy-five cents per thousand feet; and where the municipality, although continuing to take its supply of gas from the company, refuses to pay therefor, even at the rate of seventy-five cents per thousand feet, the court will not, at the suit of the municipality, restrain the company from turning off the gas until payment therefor is made.</p>

<p>Motion to cancel a notice of lis pendens.</p>

<p>Motion to cancel notice of pendency of action.</p>

<p>Insurance — Actions on policies — Issues, proof and variance — Compelling election between policy and adjustment.</p> <p>Joinder of causes of action — What causes of action may be joined — Claims arising out of the same transaction — Claim under policy and under adjustment of loss.</p> <p>Where the plaintiff brings an action against an insurance company, setting out the policy issued to the plaintiff, which is made payable to one of the defendants, a corporation, as mortgagee, as its interest may appear; and the plaintiff also alleges that such proceedings were had in respect to proofs of loss furnished by the plaintiff that the defendant insurance company duly acknowledged liability to the plaintiff under said policy of insurance and agreed to pay a certain sum in satisfaction thereof, the plaintiff and the defendant mortgagee should not be compelled to elect whether they will rely upon the policy or upon the adjustment set forth in the complaint.</p> <p>If two separate causes of action are alleged.in the complaint, both of them arose out of the policy and they may be joined in one action.</p>

<p>Motion to overrule objections to the receiver’s account and to confirm such account.</p>

<p>Foreclosure of mortgages on land — Foreclosure by action and sale —■ Distribution of proceeds and surplus — Date for determination of rights of claimants — Expiration of judgment lien after sale.</p> <p>A judgment creditor, whose lien on real estate has not been lost by the expiration of ten years from the time of docketing his judgment at the time such real estate is sold upon the foreclosure of a prior mortgage, is entitled to share in the surplus moneys, although the ten years expire before the proceeding to distribute the surplus is begun.</p>

<p>Motion for judgment on the pleadings.</p>

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

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

<p>Undertakings — Liability on undertakings — Discharge of sureties — By exception — On failure to justify; Cancellation — By order.</p> <p>The failure of the sureties upon an undertaking on appeal to justify, when their sufficiency has been excepted to, discharges them from all liability. No authority is given to the court, however, in such a case, to vacate the undertaking upon motion; but its validity must be determined in an action brought thereon.</p>

<p>Costs — Additional allowance by way of costs — Nature of action or subject-matter involved — Subject-matter as furnishing basis for computation — Construction of will.</p> <p>Guardians ad litem and special guardians — Duties and liabilities — Compensation and expense — In absence of fund belonging to infant.</p> <p>An allowance in addition to costs cannot be made under section 3253 of the Code of Civil Procedure in an action for the construction of a will; nor can an allowance be made to the special guardian of an infant "defendant in such a case, where the infant had no interest in a fund from which compensation to the guardian for necessary services might be made.</p>

<p>Divorce — Defenses and excuses — Excuse -or justification —■ Cruelty does not excuse adultery.</p> <p>A husband’s abandonment of his wife confers no license upon her to offend against the marital vows; nor will it prevent him from obtaining a divorce from her upon proof of her subsequent infidelity.</p>

<p>Fraternal and mutual benefit associations: Forfeiture, suspension or resignation—Amending constitution or by-laws: Extent of loss and liability of association—'Amending constitution or by-laws.</p> <p>Where the certificate of incorporation of a mutual benefit association contains a statement that its object is to aid its members, in case of sickness, and the families of deceased members, by such contributions as the by-laws may from time to time prescribe, and the by-laws provide that amendments thereto can be adopted by the consent of the majority of those present, the plaintiff cannot be deprived of his right to sick benefits by an amendment adopted at a regular meeting. but without notice to him that such an amendment Was under consideration until he was notified of its adoption and that under it his benefits had ceased.</p>

<p>Demubbeb to complaint.</p>

Action by plaintiff for permanent injunction restraining defendants from building a fixed railroad bridge across Buffalo river.

<p>Constitutional law — Provisions relative to municipalities and political boards and divisions — Provision against legislative control of highways.</p> <p>Injunction — Who and what may be enjoined — Acts of public and municipal corporations and officers thereof—Enjoining highway commissioners.</p> <p>The act (L. 1895, ch. 1018) authorizing the appointment of commissioners to acquire lands for the use of the city of Rochester to prevent the pollution of its water supply, is a local bill, and the provision of section 2 of said act, that such commissioners may take any highway within certain limits, and requiring them to reconstruct it elsewhere so as not to materially interfere with the public travel, and authorizing them to acquire the necessary land therefor by agreement or by condemnation, is in conflict with section 18 of art. 3 of the State Constitution which provides that “ The Legislature shall not pass a private or local bill. * * - Laying out, opening, altering, working or discontinuing roads, highways or alleys, or for draining swamps or other low lands.” Where, under the authority of said statute, the commissioners attempted the removal from the lake shore of a highway which ran along the water’s edge and substituted a new road about 200 feet from the shore line, and the commissioner of highways of the town where the lands affected were located entered upon the old highway and attempted to repair it, he may not be restrained perpetually by injunction from restoring the old highway to the public use at the suit of the city.</p>

<p>Intoxicating liquors — Action for penalties — In general — Defenses.</p> <p>Where a liquor tax certificate expires on the first day of May, and the holder does not apply for a new certificate until after the 15th of May, and pays no money for the tax until the I3th of June, and does not obtain his certificate until the 2nd of July, the facts that the county treasurer informed him about the I5th of May that he could not issue the certificate until he received a new blank form for the bond, and on the 28th of May wrote a letter to the same effect, will not constitute a defense to an action for penalties for selling liquor in the month of June, where it does not appear when the county treasurer received the blank forms, nor why the certificate was not issued before July 2nd, especially in view of the fact that the law providing for a new form of bond did not come into effect until the 15th of May.</p> <p>It was defendant’s duty to apply for a new certificate before the 1st of May; and if, for any reason, he failed to receive it, to cease trafficking in liquors until he obtained it and posted it as required by statute.</p>

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

<p>Negotiable instruments — Presentment and demand — Sufficiency of demand— By telephone; Place of demand — Demand by telephone.</p> <p>Where the holder of a note payable at the maker’s residence calls up the maker at his residence, on the day the note is due, by telephone, and the maker tells him he cannot pay the note, there has been a sufficient presentment, demand and refusal to charge the indorser.</p>

<p>Statutes—Interpretation—General rules—Mandatory or directory effect of statute — Permissive words construed as mandatory.</p> <p>In an action against a municipality whose charter requires the commen council to abate all nuisances, a complaint which sets up the continued periodical overflow of a watercourse declared by statute to be a public nuisance and which the municipality has been, by the same statute, authorized to abate, states a cause of action and is not obnoxious to a demurrer.</p>

<p>Demurrer to complaint.</p>

<p>Trusts — The beneficiary, his estate, rights and interest — Rights of creditors — Fund applicable at discretion of trustees.</p> <p>Where a testator divided his estate into twelve parts, in four of which he gave an interest to his son which he provided should be incapable of being sold, assigned or transferred or in any manner controlled by him, and as to which he empowered his executors to retain and withhold the same, in trust, to apply so much as they might from time to time consider proper for the support of his son and the son’s wife and children, during his life, and on the son’s death to distribute such part as should be then remaining to his wife and children; and where, after the death of the son’s wife leaving three minor children, a creditor of the son brought an action to induce the court to declare a fixed sum to be sufficient for the support of the son and his family, and to direct any income in excess thereof to be applied to his judgment, held: that the son’s interest being limited to such amounts as the executors in the exercise of their judgment should see fit to apply to his support, and the balance remaining a part of the trust estate to which the children were entitled, the court had no power to direct the application of any part thereof to the son’s debts.</p>

<p>Parties — Plaintiffs — Trustee of express trust — Trustees under agreement with creditors.</p> <p>Where the debtor, his creditors and three persons named as trustees unite in an agreement, by which the creditors agree to forbear prosecuting their claims, the debtor agrees to make stated payments to the trustees and to turn over to them certain life insurance policies, and the trustees are required to distribute the fund to the creditors in the manner specified in the agreement, the trustees are trustees of an express trust, within the meaning of section 449 of the Code of Civil Procedure; and, upon default on the part of the debtor to make the payments as agreed, the trustees may maintain an action against him.</p>

<p>Joinder of causes of action — What causes of action may be joined — Inconsistent causes of action.</p> <p>A cause of action in favor of a vendee under a contract for the sale of real property to recover a sum deposited by him, with disbursements for searching the title and legal fees connected therewith, based upon Ms rescission of the contract for fraudulent representations by the vendor, cannot be joined with a cause of action upon the contract in which the plaintiff seeks to recover for the defendant’s breach thereof.</p>

<p>Vendor and purchaser — Adjustment of rights after conveyance or rescission of contract — Remedy on mistake or fraud as to quantity.</p> <p>The vendee in a contract for the purchase of a farm described as containing 100 acres of land, more or less, and which was represented by the vendor as not varying from that area by more than three acres, after having taken a conveyance thereof and given back a purchase-money mortgage, and having thereafter ascertained that the area of the farm was only 66 or 67 acres, is entitled to have credited on the mortgage an amount representing the value of the difference between the actual quantity of land and that which the farm was represented to contain, on the ground of mistake, without reference to any question of fraud.</p>