Volume 61 — New York State Reporter

<p>Divorce—Decree—Fraud and collusion—Duty of court.</p> <p>Where a clear case of fraud and collusion in procuring a decree of divorce is presented, it is the duty of the court to set aside such decree, together with all other proceedings had in the action, leaving the guilty parties to take whatever consequences flow from their wrong.</p>

<p>1.- Elevated Railway—Abutting ownee—Rights.</p> <p>An owner of a lot abutting on a city street, the fee of which is in the municipality, has no private'right or easement therein other than the easements of light, air and access appurtenant to said premises.</p> <p>2. Same—Damages.</p> <p>In such case, the plaintiff cannot recover, where the testimony fails to show any net damage to Ms property flowing from the defendant’s acts.</p> <p>3. Same.</p> <p>The benefit conferred by the company cannot all be charged up against past damages and allowed no weight in determining the present fee damage.</p> <p>á. Same.</p> <p>The value of the property is to be determined by charging the company with damages and crediting it with the advantages or benefits it confers.</p> <p>5. Same.</p> <p>An award cannot be based upon testimony "that some other property has benefited by the company’s acts more than the premises of plaintiff.</p> <p>6. Same—Noise. ;i</p> <p>Noise is an element that has no direct bearing upon the fee value.</p>

<p>Appeal—Dismissal of.</p> <p>A special term cannot make an order declaring an appeal abandoned.</p>

<p>1. Municipal corporations—Docks—Defective.-</p> <p>The city of New York is not liable for injuries caused by defective dock structure.</p> <p>2. Same—Obstruction in street.</p> <p>Nor is it liable for injuries caused by a string-piece in the street, unless it is a nuisance per se or a dangerous obstruction to public travel.</p>

<p>Appeal—Findings.</p> <p>Findings of the trial judge will be assumed to be justified by the evidence, when no case upon appeal has been made, and the record contains no evidence except some, exhibits.</p>

<p>Tax—Illegal—Recovery.</p> <p>In an action to recover the amount of an illegal tax by an administrator, the intestate’s ignorance of its illegality at the time of its payment need not be proved, in case he was then in infirm health and attended to little of his business.</p>

<p>Partnership—Executor.</p> <p>Where one member of a firm of attorneys, at the request of his partner, who is the executor of an estate, performs valuable services for the benefit of the estate, the law will imply a promise on the part of the latter to pay their fair value.</p>

<p>Appeal from an interlocutory judgment overruling the demurrer of the defendant to the complaint.</p>

<p>Appeal—Who may take.</p> <p>A judgment, which in no way injures or jeopardizes the appellants or their property, will be affirmed.</p>

<p>1. Pleading—Answer—Affirmative defense.</p> <p>Defense of adequate remedy at law, in equitable action, is waived by not pleading it in the answei.</p> <p>2. Same—Demurrer.</p> <p>Objection that there is a misjoindei oi defect of parties plaintiff, oi that causes of action are improperly united, is waived if nqt taken by demurrer or answer.</p> <p>3. Parties—Equitable actions.</p> <p>In equitable actions, all persons having an interest in the controversy should be made plaintiffs or defendants and their interests determined.</p> <p>4. Elevated railroad—Injunction—Infant.</p> <p>In an action against an elevated railroad for an injunction, the court has no power to appoint a special guardian for an infant plaintiff and authorize him to convey the ward’s interest to the company.</p>

<p>Bills and notes—Protest.</p> <p>Where it is incumbent on the holder of a check to present it for payment, he loses, if he fails to do so, not only his remedy on the check, but also the original consideration or debt.</p>

<p>1. Contract—Place of return.</p> <p>Where a heater is sold to fulfill certain conditions and prove satisfactory, and it did neither, the purchaser has the right to return it at the place where it was delivered to him.</p> <p>2. Same—Consideration.</p> <p>In such case, an agreement by him to pay for its removal, is without consideration.</p> <p>S. Same—Notice.</p> <p>Notice to vendor’s employes who came to demand payment is sufficient, if the fact of such notice came to the managing agent.</p>

<p>Master and servant—Discharge.</p> <p>In an action for services, where the term of employment has not expired at the time of trial, the servant, upon wrongful discharge, can recover only to the time of the commencement of the action.</p>

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

<p>1. Negligence—Cause of accident.</p> <p>Where damages are occasioned by one of two causes, for one of which the defendant is, and for the other he is not, responsible, plaintiff must fail if his evidence does not show that the damage was produced by the former cause.</p> <p>2. Same.</p> <p>He must also fail, if it is just as probable that they were occasioned by the one as the other cause.</p>

<p>1. Judgment—Amendment.</p> <p>A judgment in favor of the executors of the original relator cannot be amended so as to make the costs payable to the attorney of relator.</p> <p>2. Same.</p> <p>The rights of such attorney terminated with the death of the original relator, and his remedy,if he had a lien,was by a hearing in the proceeding before the court, referee or jury.</p>

<p>Contract—Statute of frauds.</p> <p>Verbal promise to pay for goods as condition of their delivery to another and vendor’s charge of them to the promisee, take the contract from the operation of the statute of frauds.</p>

<p>Pleading—Complaint—Subscription.</p> <p>The signature of the plaintiff to the verification clause is a sufficient subscription of the complaint to meet the requirements of § 459 of the revised charter of Buffalo.</p>

<p>1. Gabbier—Connecting line.</p> <p>A carrier, which sells tickets and assumes to secure proper accommodations, over a connecting line, is liable for latter’s failure to furnish them, notwithstanding a printed notice on the ticket that it acts as agent and is not responsible beyond its own line.</p> <p>3. Same.</p> <p>Such ticket is only a voucher that the party holding it has paid his fare.</p>

<p>Equity—Adequate remedy at law.</p> <p>Where an action at law for damages will afford a party complete relief, he cannot invoke the equitable aid of the court.</p>

<p>Railroads— Street.</p> <p>Street car conductor has no right, by demonstration and ejaculation, to produce fear and thus cause a trespasser to attempt to alight, if, by so doing, he unnecessarily exposes him to the hazard of injury.</p>

<p>Corporation—Subscription—Void. O</p> <p>A failure to pay the per centum required by statute renders void a subscription to stock of a corporation, made after incorporation.</p>

<p>Municipal corporation—Officers—Removal.</p> <p>Drivers in the street cleaning department may be removed without a trial.</p>

<p>1. Appeal—Order denting new trial.</p> <p>Unless the order denying a motion for a new trial recites the ground of motion, the facts cannot he reviewed on appeal therefrom.</p> <p>2. Pleading—Assignment.</p> <p>An assignee cannot recover on his claim unless the assignment is alleged and proved.</p>

<p>1. Appeal—Charge.</p> <p>The only remedy for any omission to instruct the jury fully or any assumption of facts not warranted by the evidence, is an exception to a refusal to supply omission or to correct the false assumption.</p> <p>2. Same.</p> <p>Where the instruction, excepted to, is such that prejudice may have resulted therefrom to the exceptant, the judgment will be reversed.</p>

<p>Will— Cohstruction—Bequest for masses.</p> <p>A direction in the will of a Roman Catholic appropriating a reasonable amount of money in offering masses for the remission of her and her deceased husband’s sins, is valid.</p>

The complaint alleges as a cause of action: That on the 6th day of November, 1893, at the village of Keeseville.