Volume 60 — New York State Reporter

<p>Evidence—Wills—Effect of refusal to probate.</p> <p>Under § 8627 of the Code, a decree that a will of real property was procured by fraud and undue influence is not conclusive on the devisee.</p>

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

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

<p>Motion for a new trial.</p>

<p>1. Assembly districts—Division.</p> <p>A large measure of discretion is necessarily left with the board of supervisors in dividing a county into districts for the election of members of assembly.</p> <p>2. Same—Application to court.</p> <p>The deviation from equality of population, which will justify or warrant an application to a court for redress, must be so grave, palpable and unreasonable that, when the facts are presented, argument will not he necessary to convince a fair man that a very great and wholly unncessary inequality has been intentionally provided for.</p> <p>8, Same—Compact.</p> <p>The Constitution does not require the districts to be made up of compact territory.</p> <p>4. Same—Wards.</p> <p>The Constitutional prohibition against the divisions of towns does not apply to wards of a city.</p> <p>5. Appeal—Court of appeals—Discretion.</p> <p>It is not the function of the court of appeals to revise official action involving the exercise of discretion.</p>

<p>Proceedings to punish for contempt of court in refusing to answer questions before the grand jury.</p>

<p>Demurrer to complaint.</p>

<p>Trial—Short calendar.</p> <p>The special term, on a motion to put a cause on the special calendar for short causes, has discretionary power to determine whether there is reason to believe that the trial will not occupy more than one hour.</p>

<p>Motion to vacate ex parte order requiring plaintiff to file security for costs.</p>

<p>Motion for leave to serve an amended answer.</p>

Motion by plaintiff for an injunction restraining the defendants from producing a certain theatrical play under the title of “Charley’s Únele,” and from using or displaying any posters or illustrated matter bearing thereon an owl.

<p>Motion for a new trial.</p>

<p>1. Contracts—Consideration.</p> <p>An executory contract, which is supported by a.meritorious consideration only, is not enforceable either at law or in equity.</p> <p>2. Mortgages—Foreclosure—Personal judgment.</p> <p>A personal judgment, in an action to foreclose a mortgage in a foreign state, cannot be rendered against a defendant, where he was not served with summons in such state.</p> <p>8. Corporation—Dividends—Income.</p> <p>Dividends on stock are income, though paid from sales of land which was the only property of the corporation.</p>

<p>Appeal from an order directing payment of counsel fees and alimony pendente lite.</p>

<p>Appeal from a judgment of the general term of the New York Superior Court, entered in favor of the plaintiff on an order overruling defendant’s exceptions.</p>

<p>Appeal from a judgment of the general term of the supreme court, fifth department, reversing in part and affirming in part, a judgment entered on the report of a referee.</p>

<p>1. Appeal—Charge.</p> <p>The trial court may refuse to charge the jury as to the effect upon certain evidence, if certain other evidence is believed by them, and relegate the whole matter to the jury.</p> <p>2. Same.</p> <p>It may refuse to charge that the intent of one of the parties to a transaction determines its legal effect.</p> <p>3. Same.</p> <p>A charge that the intention, with which a thing is done, does not always control its legal effect, is proper.</p> <p>4. Question op pact — Sale.</p> <p>Whether a transaction under which the plaintiff came into possession of defendant’s lumber is a bailment or a sale, is a.question for the jury.</p>

<p>Appeal from a judgment of the general term of the supreme court, first department, affirming a judgment dismissing the complaint as to some of the defendants.</p>

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

<p>1. Appeal—Discretion.</p> <p>An order of the general term, affirming an order of the special term denying a motion for a bill of particulars, which does not state the ground for the denial, is not reviewable in the court of appeals.</p> <p>'3. Same—Opinion op general term.</p> <p>The opinion of the general term may not be looked at to ascertain the ground.</p>

<p>Appeal from a judgment of the general term of the supreme court, second department, affirming a surrogate’s decree settling the executor’s account.</p>

<p>Appeal — Rearuument.</p> <p>A claim that the court has plainly erred in its construction of a contract, is insufficient ground for a motion for a reargument.</p>

<p>Contract—Non-ferformance.</p> <p>Where the evidence, in an action on contract for putting in parquet floorings of first-class character, shows that the work shrunk and necessitated constant repairs, it is insufficient to establish performance of such contract.</p>

Action for judicial direction that the payment of taxes upon certain premises be paid from the rents, issues and profits, and that a receiver be appointed for such purpose.

<p>Appeal by defendant from judgment entered upon the decision of a judge at special term.</p>

<p>Estoppel — Executors.</p> <p>The successors of an executor, who has sold lotsibounding on a private street, are estopped from contending that the street was illegal, and that, therefore, no easement in it passed as appurtenant to the lots.</p>

<p>Appeal from a judgment of the general term of the common pleas of the city of New York, affirming a judgment in favor of plaintiff.</p>

<p>Appeal—Fhtoiugs.</p> <p>Until the trial court has found that a writing does not express the intention of the parties and the agreement as they actually intended to make it, the court of appeals is not at liberty to resort to the evidence for the purpose of spelling out what they intended to embody in the paper.</p>

■ Appeal from a judgment of the general term of the supreme court, first department, affirming an order adjudging defendant guilty of contempt for failing to produce certain books, pursuant to a subpoena duces tecum.

<p>Appeal—Order refusing preference.</p> <p>An appeal lies from an order denying plaintiff a preference on the trial calendar to which he was entitled. '</p>

<p>Action by the plaintiff as the beneficiary in a policy issued by the defendant, a benevolent organization. Defense, breach of warranty.</p>

The action was originally commenced by the “Order Germania,” a benevolent corporation, against Johanna Weiss and Louis Hoffman, as sureties upon the official bond of John Weiss, the treasurer of the corporation, to recover moneys received by said treasurer and not- paid over. Pending the action, Mr. Lewison was appointed receiver of the property and assets of the corporation, and was in his official capacity substituted as plaintiff. .

Action brought against defendant’s testator in his lifetime for breach of contract under seal between him and' one Soelkey, plaintiff’s assignor, by which said Soelkey assigned to the testator the exclusive right to make, use and sell patented cowls and ventilators for the unexpired term of a certain patent, and the latter agreed to introduce these cowls and' ventilators in the territory granted, and to manufacture 1,000 of them within a year from the date of the contract,…

<p>Appeal—Appealable.</p> <p>An appeal does not lie from an order sustaining a demurrer to the' complaint, with leave to the plaintiff to amend on payment of costs.</p>

<p>Wharf—Oyster barge.</p> <p>An oyster barge is a vessel and floating structure within the meaning oí § 798 of the Consolidation Act.</p>

<p>Bills and notes—Collection—Credit.</p> <p>Where a collecting agent deposits a check belonging to his'principal with a bank, it has not the right arbitrarily,to credit the proceeds on a past due obligation of the agent on the ground that he was a depositor with it.</p>

<p>Railroads—Elevated—Injunction.</p> <p>In an action against an elevated railway for an injunction and damages, the court has power, in its discretion, to suspend the operation of the injunction, in case of proof that condemnation proceedings have been insti- - tuted, for the purpose of acquiring the easements, without unreasonable delay and prosecuted with reasonable diligence.</p>

<p>1. Appeal—Charge.</p> <p>An instruction, which is equivalent to. saying to the jury that, if they believed that the injured party thought there was no danger, then there was no negligence, lays down an erroneous rule.</p> <p>2. Same—Harmless error.</p> <p>In case of an erroneous charge, the respondent, in order to sustain the verdict, must show that the error did not affect, and could not have affected, it.</p>

<p>Motion by defendant for judgment on dismissal of complaint, where the exceptions were ordered to be heard* in the first instance at general term.</p>

<p>Appeal from order refusing to set aside nonsuit, or to allow an exception to plaintiff.</p>

Motion by plaintiffs for judgment upon a verdict directed in their favor; exceptions to be heard in the first instance at general term.

<p>Contract—Provision for inspection.</p> <p>Under a provision in a contract for the appointment of an inspector by the city, with power to reject materials furnished and work done, which do not comply with the terms of the agreement, any loss or damage to the contractors following therefrom, arises out of the nature of the work and constitutes such loss or damage as the terms of the contract call upon the contractors to sustain.</p>

Cross-appeals, first by the plaintiff, upon the ground that the referee should have allowed the plaintiff $4,914.62, instead of $2,803.27 ; and next by the defendant, upon the ground- that the amount allowed is excessive.

<p>1. Appeal—Pleadings—Amendment—Want of power.</p> <p>An order denying an amendment is appealable where the court puts its refusal upon the specific ground of want of power.</p> <p>3. Pleadings—Amendment.</p> <p>An amendment; which simply is intended to supply an omission in the allegations of a cause of action already alleged is allowable in the discretion of the court.</p>

<p>1. Appeal—Waiver—Stipulation.</p> <p>Parties may stipulate that the decision of a court may he final, and thus waive the right of appeal.</p> <p>2. Same—Power op attorneys.</p> <p>An attorney may enter into such a stipulation without the prior consent of his client.</p>