Volume 62 — New York Miscellaneous Reports

<p>Appeal by the plaintiff from a judgment in favor of the defendant rendered in the City Court of the city of ¡New York.</p>

<p>Trial — Reception and exclusion of evidence — Introduction, offer and order of proof — • Introduction — Calling for document and requesting inspection not equivalent to introduction.</p> <p>Where, in an action to recover the value of goods alleged to have been delivered to defendants under an alleged contract made through an agent of the plaintiffs, the authority of the agent was a material question, the reception in evidence, as an exhibit for defendants over their objection, of a contract between plaintiffs and their agent showing that the agency wias a limited one was prejudicial to defendants, and, in connection with the court’s refusal to permit defendants’ counsel to inspect the document produced at his request, unless they agreed to offer it in evidence, was error.</p>

<p>Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, fifth district, borough of Manhattan, dismissing the complaint at the close of plaintiff’s case.</p>

Appeal by the defendants from a judgment in favor of the plaintiff rendered in the Municipal Court of the city of Hew York, ninth district, borough of Manhattan.

<p>Canals — Acquiring land.</p> <p>Eminent domain — Measure of compensation — Injury to property not taken — Anticipated consequential damages.</p> <p>Navigable waters — What are navigable waters — In general — Wood creek.</p> <p>Wood creek, which formed part of the ordinary route of travel between the Hudson river and Lake Champlain from the earliest times and was used by the Indians and later by the colonists, was regarded as navigable and in the patent from the English Crown to Philip Skene was excepted and “ reserved as a common highway for the benefit of the public.”</p> <p>Philip Skene having been attainted of treason by the Legislature of the State of New York in 1779 and his lands sold by the commissioners of forfeiture, those claiming under the Skene patent have no interest in the bed of Wood creek and the State may take a portion thereof for its canal system without compensation to the riparian owners.</p> <p>The State having taken certain .adjacent lands for canal purposes, the courts may not compel it to take additional lands which may be flooded if the high navigable stage of the canal should ever he reached; and such lands not being necessary for ordinary use and their flooding being only a possibility or contingency, the damage thereto is speculative and not to be considered in fixing the award for the lands taken.</p> <p>Semble, for such damages, if they should ever occur, the owner may have a further claim against the State.</p>

<p>Habeas corpus proceedings.</p>

<p>Habeas corpus proceedings.</p>

<p>Intoxicating liquors — Seizure and forfeiture of liquors — Construction of statute.</p> <p>The provision of the Liquor Tax Law declaring liquors kept in violation of the law forfeited, as well as the vessels in which such liquors are contained, and providing for their destruction, is not applicable to bottles which do not belong to the offender and which were used by him without the owner’s consent.</p>

<p>Motion for costs under section 31c of the Liquor Tax Law of -the State of Hew York, entitled “ Search for seizure and forfeiture of liquors kept for unlawful traffic.”</p>

<p>Vagrants — Order for discharge — Duty of commissioner of corrections of the city of New York — How enforced.</p> <p>It is the duty of the commissioner of corrections of the city of New York, in the case of a person committed to the workhouse upon conviction under section 141 of chapter 834 of the Laws of 1901, to make a written order specifying the date at which such person shall be discharged; and, upon the failure of the commissioner to make such order, he may be compelled to do so by a writ of mandamus.</p>

<p>Villages — Submission of questions to taxpayers — Water supply — Women may not vote.</p> <p>At an election held under section 128 of the Village Law upon a proposition to issue bonds for village water works, the votes of women should not .be received.</p>

<p>Application for a peremptory writ of mandamus.</p>

<p>Attorney and client — The vocation — Admission and nature and tenure of office — Subjection to authority of court — May be compelled to disclose address of client.</p> <p>Where all efforts to find or locate a defendant in the places where he was supposed to be have proved futile, an order may be granted requiring his attorney to disclose the address of his client to enable the plaintiff to serve upon him an order requiring the payment of counsel fees in the pending litigation.</p>

<p>Executors and administrators — Collection and reduction to possession of property or claims of estate — .Rights, duties and liabilities — Person entitled in general — Next of kin.</p> <p>Limitation of actions — Disabilities and exceptions — Suspension in general — Death and administration.</p> <p>Parties — Objections and waiver thereof — Waiver of objections — Nonjoinder of parties.</p> <p>Where an action was 'brought by two tenants in common upon a judgment recovered for rent by themselves and another named as administratrix of a deceased tenant in common who had died intestate about ten years before, and the fact that there was no administratrix was not discovered until the case was being prepared for trial and the Statute of Limitations had apparently run against the cause of action upon the judgment, the limitation as to the substitution of a representative of the deceased .tenant in common as a party plaintiff was not relieved by section 402 of the Code of 'Civil Procedure.</p> <p>Where, after the death of the tenant in common who had died intestate and without creditors, the judgment debtor promised one of the surviving judgment creditors to pay the judgment, they may maintain an action thereon and the representative of the deceased judgment creditor need not be joined as a party plaintiff.</p> <p>A defect of parties plaintiff is waived by failure to take the objection by demurrer or answer.</p>

<p>Pleading — Motions relating to pleadings — In general — Matters subject of motion — Numbering paragraphs of complaint.</p> <p>An order requiring plaintiff to number the paragraphs of his complaint consisting of five pages is properly granted.</p>

<p>Motion to bring in the county of Orange as one of the parties defendant.</p>

<p>Eminent domain — Condemnation proceedings — Costs — Costs on appeal— Amount and items.</p> <p>Where, in a proceeding by the city of New York to acquire for the purposes of a water supply several distinct parcels of land owned by separate owners who appear by separate attorneys, the court, upon the recommendation of the commissioners, directs the entry of a final order awarding costs and allowances to each of said owners and, upon appeal, the order is affirmed by the Appellate Division and its order is affirmed by the Court of Appeals “ with costs,” separate bills of costs for the separate respondents are properly taxed, but it is improper to include in each interest upon the amount of costs and allowances awarded by the original , order, such interest being no part of the costs in the Court of Appeals or in the Appellate Division.</p> <p>The final order appealed from was neither a verdict, a report, nor a decision within the meaning of section 1235 of .the Code of Civil Procedure, nor will the order to he entered in conformity with the decision of the 'Court of Appeals to be a final judgment for a sum of money.</p>

Motion by sheriff of Saratoga county for an order directing the disposition of certain moneys in his hands arising from the sale of certain personal property belonging to defendant.

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

<p>Motion to strike out a proposed case on appeal.</p>

Action brought by the plaintiff as a judgment creditor of the Leighton Lea Association, a corporation, on his own behalf and for all other creditors of the corporation who may avail themselves of the benefits of the action against said corporation and its stockholders. Motion to dismiss the complaint, in which motion all defendants who have appeared in the action unite.

<p>Contracts — Interpretation of contracts — Particular agreements — Contract for support of third person.</p> <p>Where, in a deed of conveyance of land given in consideration of the maintenance and support of the grantor, no place is specified where she is to be maintained and supported, she may live where she pleases provided her expenditures are reasonable.</p> <p>Where plaintiff conveyed certain premises to her niece, taking back a mortgage for $2,000 with an accompanying bond that defendant should furnish the plaintiff good and comfortable lodging, good and wholesome food, all necessary and suitable clothing and defray the expenses of- all things conducive to her comfort, health and happiness during her natural life and at her death pay all expenses of her funeral, and, upon a claim that the relations thus created were not pleasant and a proper consideration was not shown the plaintiff by the defendant and her family, she left defendant’s home and, after making arrangements in the vicinity of her former home for her board and care at the rate of five dollars a week, made a demand upon defendant for money to pay such amount together with certain clothing, nursing and doctor’s bills during an illness and brings an action to foreclose the mortgage for the full amount, she is entitled, under section 1915 of the Code of Civil Procedure, to recover the amount of the bills for which demand of payment had been made and to bring successive actions for similar bills.</p>

<p>Foreclosure of mortgages on land — Foreclosure hy action and sale — Defenses — Contract void hy Statute of Frauds.</p> <p>Frauds, Statute of — Real property and estates and interests therein — ■ Interests in land in general — Agreement to purchase mortgage for benefit of another.</p> <p>Pleading — Replication or reply and subsequent pleadings — Necessity for reply — To allegations of new matter.</p> <p>Where the only defense to the foreclosure of a $5,000 mortgage was that plaintiff, having orally agreed with defendant to act as his agent for the purpose of securing an assignment of said mortgage on terms that would be greatly to the advantage of defendant, instead of doing so took the assignment of the bond and mortgage in his own name paying therefor less than half the amount then due upon the mortgage, but refused to transfer the mortgage to defendant or give him the advantage of the transaction to which he claimed he was entitled, said contract, being absolutely void under the Statute of Frauds, was no defense.</p> <p>The oral agreement being an affirmative defense and not a counterclaim and no reply having been required by' the court upon motion of the defendant, no reply was necessary either by way of denial or allegation of the Statute of Frauds.</p>

<p>Indians — Actions by or against Indians — Action by Seneca Nation: What attorney may prosecute; Action to enjoin interference with de facto president.</p> <p>Injunction — Who and what may be enjoined — Acts of public and municipal corporations and officers thereof — Title to office — President of Seneca Nation.</p> <p>The Seneca Nation of Indians may maintain an ■ action for an injunction against one who threatens to interfere with the discharge of the duties of the office of president by one who is de facto president and discharging such duties, but whose right to the office is disputed by defendant, until the title to the office can be legally tested in an action brought under section 1948 of the Code of Civil Procedure.</p> <p>In such an action for an injunction the plaintiff may appear by an attorney acting under a resolution of its governing council and is not limited to representation by the attorney for the Seneca Nation of Indians appointed under section 74 of the Indian Law.</p>

Action to restrain the defendant Elsie Janis from rendering to another such services as she has agreed to render to the plaintiffs and not to render to any other' person.

<p>Motions for temporary injunctions.</p>

<p>■Action upon policies of fire insurance.</p>

<p>Action on fire insurance policies.</p>

<p>Landlord and tenant — Rights, duties and liabilities in regard to premises — ' Incumbrances, taxes and assessments — Liability for taxes and assessments in absence of covenants — Water rates.</p> <p>A tenant of real property in the city of New York is liable to pay for water furnished to it through a meter and consumed by it, although the lease contains no covenant to pay water rates; and the landlord, having paid the sum to save its property from sale for the enforcement of the lien therefor, may recover the amount thereof from the tenant.</p>

<p>Malicious prosecution — Pleading — Probable cause.</p> <p>In an action for malicious prosecution, the holding of the plaintiff by a magistrate after examination into the facts is prima facie evidence of probable cause only; and the general allegation that the arrest was without probable cause is sufficient to enable the plaintiff upon the trial to show that, upon all the facts in the case, there was no probable cause for the defendant’s action in procuring his arrest.</p>

<p>Action to foreclose a mechanic’s lien.</p>

<p>Action to recover the amount of a paving assessment.</p>

<p>Indians: Indian lands — Nature of Indian title — Title of individuals; Alienation of lands.</p> <p>Specific performance: Nature and foundation of remedy — Where performance is out of the power of defendant: Actions — Relief other than according to contract — Where performance is impossible.</p> <p>The Indian lands in the St. Regis reservation are tribal lands but may be held in severalty under allotments by the chiefs or head men of the St. Regis Nation, pursuant to section 102 of the Indian Law.</p> <p>Such allotment in severalty is not the partition of tribal lands provided for in section 7 of the Indian Law.</p> <p>The individuals of the St. Regis tribe do not hold title to lands thus allotted in fee simple, their only interest being the right of occupancy and the use of the lands and probably the ownership of such improvements as they put upon them.</p> <p>Such lands may not be conveyed by an individual Indian nor has the wife of the occupant an inchoate right of dower therein.</p> <p>Where the sale of a farm is an essential and material part of a contract for the purchase of a stock of goods and the court has no jurisdiction to enforce a contract to convey the farm because it is a part of the tribal lands of the St. Regis Nation of Indians, the court cannot enforce the purchase of the goods.</p> <p>Where, however, the vendee of the farm entered into possession and received .produce and rentals therefrom there should be an accounting between the parties and the vendor is entitled to recover the net profits of the farm received by the vendee and to a return of the conveyance executed by him and also to recover the possession of the farm or, in default thereof, the value of his right of occupancy and improvements.</p>

<p>Taxes — Inheritance and transfer taxes — Exemptions — Cemetery association.</p> <p>A bequest to a foreign cemetery association, the interest upon which should keep the testator’s lot in good condition forever, is taxable under the laws relating to taxable transfers.</p>

<p>Accretion — Rights of adjoining riparian owners.</p> <p>Adverse possession — Subjects of adverse possession — Public lands.</p> <p>Boundaries: Location of calls — Waters as boundaries — Rivers and</p> <p>streams: Establishment by act of parties — Practical location —</p> <p>necessity of ambiguity as to boundary.</p> <p>Havigable waters: What are navigable waters — Ebb and flow of tide: Rights of the public and interference therewith — Diversion — Diversion by State for canal purposes: Ownership of lands</p> <p>under waters and grants thereof; Grants to and acquisition by private owners — Grant by commissioners — Grant of adjacent lands as conveying title to bed of stream; Paramountcy of right of United States to improve channel.</p> <p>Public lands — Construction and operation of the grant or patent — Construction — Against whom construed.</p> <p>The rule that certain grants by the State are to be construed strictly against the grantee does not apply to grants of real estate by the State where there is an adequate consideration for the grant; but such grants of real estate, when they relate to real property upon the banks of water courses, are to be construed in the same manner as grants by private persons in respect to the extent of the grant and the riparian rights affected.</p> <p>In respect to grants of lands lying upon nontidal streams, the grant extends to the center of the stream, in the absence of an express reservation or language from which an intent to make such reservation is necessarily inferable.</p> <p>At common law the term “navigable” was applied only to streams in which the tide ebbed and flowed and the rules applicable to grants of lands upon such navigable waters are not applicable to nontidal streams, although they may be, in fact, navigable; and the navigability, in fact, of nontidal streams merely affects the question of the public right to transportation upon their surface.</p> <p>The riparian rights of the owner of the upland on a tide-water stream, or on a nontidal stream which is navigable in fact, is subject to the paramount right of the State and Federal government to improve navigation and regulate commerce by deepening the channel or removing obstructions, even those placed there by</p> <p>the owner of the bed of the stream; but the State cannot abstract water from a nontidal stream whose bed it does not own and divert it from its natural channel, to the injury of riparian owners, for purposes of artificial navigation wholly distinct from that of the river itself</p> <p>Where the blue line showing the boundary of State lands used for canal purposes cannot be located upon the ground, the doctrine of practical location may be resorted to in order to establish the disputed line</p> <p>The statute permitting the 'Commissioners of the Land Office to grant land under the water of “ navigable rivers ” as they might deem necessary to promote the commerce of the State, provided that the grant should be made to the owner of the adjacent land ('Chap. 67 Laws of 1786) is only applicable to tidal streams and does not apply to nontidal streams, although they are, in fact, navigable.</p> <p>Where a patentee, to whom was granted 300 acres of land in 1793, laid off thereunder and has since occupied 308 acres of upland, not including the bed of an adjacent 'nontidal river, it does not appear that, after the proper allowance for highways, he laid off more than that to which he was entitled under the grant, taking into consideration the means then available for measuring lands, the difficulty of making a survey, the comparatively small value of the land at the time, the changes that may have occurred since in the channel of the stream and the custom of excluding, in computing areas of lands bordering on streams, the area of the land under water.</p> <p>Where the State owns the bed of a river and its water, it can abstract the water for canal purposes without compensation to riparian owners.</p> <p>A grant of lands 'by the State in 17'93, by a description beginning at a sapling standing on the east shore of Oswego river and, after running several courses, returning to the said river, and then up along the same to the place of beginning, carries the title of the grantee to the center of the stream.</p> <p>In construing conveyances of lands upon a stream or body of water, more liberality must be allowed in interpreting the language of the conveyance because of the difficulty of locating the bounds of such land, except by marks upon the shore of the stream, and 'because, ordinarily, no monument can be placed in the center of the stream.</p> <p>Title may be acquired by adverse possession or prescription as against the State to lands under water by the adverse riparian owners, where the right of action on the part of the State to recover the lands accrued before the beginning of the statutory period of forty years, and where within that period it has not received rents or profits from the property.</p> <p>.Where, in the course of years, the volume of a nontidal river has decreased, any lands which riparian owners may have reclaimed from its bed may be occupied by them so long as they do not interfere with the paramount right of the State or Federal government to improve the bed of the river for purposes of navigation or commerce.</p>

<p>Appeal by the tenant from a final order in summary proceedings, rendered in favor of the landlords in the Municipal Court of the city of Hew York, second district, borough of Manhattan.</p>

<p>Appeal from a judgment of the Municipal Court of the city of Hew York, fifth district, borough of Manhattan, rendered in favor of the defendant, dismissing the complaint, and from an order consolidating two actions.</p>

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

<p>Appeal by the judgment debtor from an order of the City Court of the city of Hew York granting permission to Charles A. Brady, receiver, to make application to the Supreme Court, Hew York county, for substitution as plaintiff in the case of Adolph J. Shary, plaintiff,' against the Rainier Motor Car Company and granting permission to the said receiver to bring an action against the judgment debtor and his transferee, the Saratoga Auto Top and Body Company, and others, to set aside a transfer of property made by the judgment debtor as in fraud of his creditors.</p>

<p>Appeals by the respective defendants from judgments in favor of the plaintiff, rendered in the Municipal Court of the city of ¡New York, third district, borough of Manhattan.</p>

Appeal by the plaintiff from a judgment in favor of the defendants, rendered in the Municipal Oourt of the city of blew York, third district, borough of Manhattan.

Appeal by the plaintiff .from a judgment of the Municipal Court of the city of Hew York, fourth district, borough of Manhattan, dismissing the complaint, after a trial by the court, without a jury.

<p>Corporations: Stock — Dividends — Eight to dividends — To whom</p> <p>dividends should be paid: Eights of stockholders and actions</p> <p>by them — In general — Eight to inspect books of corporation — Who are stockholders.</p> <p>Pledge — Eights and liabilities created — Effect on title.</p> <p>The owner of shares of corporate stock does not divest himself of Ms general property therein by a pledge of the same to the corporation, but, subject to the lien of the pledgee, he remains the owner of the stock.</p> <p>Under section 20 of the General Corporation Law as amended in 1901, providing that the record holder of stock pledged as security shall issue to the pledgor upon proper demand a proxy to vote thereon, and section 54 of the Stock Corporation Law as amended in 1901, providing that nb person holding stock as collateral shall he personally liable as a stockholder, the pledgor of corporate stock is a stockholder within the meaning of section 29 of the Stock Corporation Law which imposes a penalty for refusal by the corporation to permit a stockholder to inspect its stock-books.</p> <p>A pledgee of corporate stock is entitled to receive and retain dividends thereon as an increment thereof to he accounted for later.</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>Fraternal and mutual benefit associations — Extent of loss and liability of association — Sick benefit.</p> <p>Where plaintiff, a ladies’ tailor, was bitten by a dog over the right eye which swelled and became black and blue and he was unable to wear spectacles after the injury, and, as a consequence, could not work though his general health was all right and he could go around just as though nothing had happened, he is not hy reason of the injury entitled to recover “ sick benefits ” provided for by the by-laws of the society of which he was a member in cases of sickness.</p>

<p>Appeal by the defendant Wilson from a judgment of the Municipal Court of the city of Hew York, ninth district, borough of Manhattan, rendered in favor of the plaintiff, and from an order denying a motion for a new trial.</p>

<p>Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of Mew York, seventh district, borough of Manhattan, and also fcom an order denying a motion to vacate the judgment.</p>

<p>Bill of particulars — When authorized — Matters of defense — Particulars of plaintiff’s breaches of contract.</p> <p>Where, in an action to recover damages for an alleged breach of a written contract by which defendant hired plaintiff as sales agent, the answer is a general denial, and its allegations with regard to the failure of plaintiff to comply with the requirements of the contract are numerous, material and so indefinite as to expose plaintiff to the danger of prejudicial surprise at the trial, an order requiring defendant to serve a bill of particulars will be affirmed, although it may involve a disclosure of the names of individuals with whom it is claimed the transactions were had which constituted plaintiff’s alleged failures to observe the contract.</p>

<p>Municipal Courts' — ¡Review — Decision — When appellate court cannot determine whether error exists.</p> <p>Tender — In general: Effect of tender in general — Upon right to costs; Upon right to defend against further claim: Right to amount tendered.</p> <p>In an action upon contract, a tender by defendant of a sum less thaai tlhe amount claimed, with payment thereof into court, is, regardless of the final result of the action, a conclusive admission of the indebtedness sued for to the extent of the tender and vests the title thereto in -tihe plaintiff, and a judgment in his favor for a less amount cannot affect his right to the amount paid into court.</p> <p>Where a plaintiff proceeds with an action after a tender and deposit o-f the amount claimed, ¡he is liable for costs if he recovers less than the amount of the tender; but the defendant, if successful, loses the amount tendered.</p> <p>The fact that a defendant in an action upon contract made a tender and payment into court does not preclude him from opposing any claim by plaintiff beyond the sum tendered, upon any ground consistent with an admission of the original contract or cause of action.,</p> <p>Where, in an action to recover commissions on sales consisting of about fifteen items, the court .in rendering judgment for plaintiff did not intimate which of the items it allowed or disallowed, and it is impossible to determine whether or not the court erred in the amount of its. judgment, which was less than the amount tendered, by defendant and paid into court, the judgment will be reversed and a new trial ordered.</p>

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

<p>Implied contracts — Contracts implied in law — Obligation to reimburse for payments made to defendant’s use — Payments made by mistake— Overpayments; What amounts to mistake.</p> <p>Money paid under a mistake of fact in excess of the amount due is recoverable in an action at law.</p> <p>An overpayment of a debt made under a mistake of fact is recoverable, though the debtor had the means of knowledge or was negligent.</p> <p>Where, after part payment by check of a debt for goods sold and delivered, the claim was given to an attorney for collection who demanded the full amount of the claim, aim, upon his statement to the debtor that as tlie claim had been turned over to an agency for collection he supposed his check would be returned, the full amount of the claim was paid to the attorney and the check was also presented and paid, an action for money had and received is maintainable against the creditor to recover the overpayment on the ground of a mistake of fact, the agreement with the attorney relieving the debtor from any duty to stop payment of the check.</p> <p>Where in such case it appears that as between the debtor and the attorney the mistake was mutual, and that both acted under the impression that the check given in part payment had not been received, or, if it had, the creditor was aware that the debtor was laboring under a mistake, the debtor in either event was entitled to recover the overpayment from the creditor, who was precluded from denying that he understood the facts in any other sense than that in which the attorney and the plaintiff understood them.</p> <p>An order of the Municipal Court of the city of New York denying a motion for a retaxation of costs is not appealable; but, upon appeal from that part of the judgment which includes the costs which the appellant seeks to have reviewed, the costs may, under section 342 of the Municipal Court Act, he reviewed.</p> <p>There is no authority in the Municipal Court Act of the city of New York to award costs to a party for drawing interrogatories; but, under section 330 of said act, fees paid to commissioners for taking depositions are properly awarded.</p>

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

<p>Appeal by the defendant L. Rosenberg, Incorporated, from a judgment of the City Court of the city of Rew York, entered upon the verdict of a jury, and from an order denying such defendant’s motion to set aside the verdict and for a new trial.</p>

<p>Negotiable instruments — Actions — Answer: Consideration: Owner-</p> <p>ship, negotiation and transfer.</p> <p>In an action against the maker of a cheek, an answer that denies that the check was drawn for any consideration and denies that there was any consideration for any of the subsequent trans>fers thereof and alleges that it was drawn at the request of the payee to enable him to induce a third person to whom he transferred it not to make a false accusation of crime against him, which she threatened otherwise to do, and that it was transferred to the plaintiff after payment had been stopped and after presentment and demand of payment and refusal to pay and with full knowledge on the part of the plaintiff of all the facts, cannot be held frivolous.</p>

<p>Appeal — Review — Review of questions of fact — In general — Facts found upon inspection by court.</p> <p>Saving questions for review — Objections and exceptions in general — Necessity — Evidence.</p> <p>A judgment rendered after a trial by the court without a jury should not be reversed because it rests in part upon hearsay testimony, where no objection was made to its reception and no motion was made to strike it out, nor because incompetent testimony was admitted over defendant’s objection where no exception to its admission was taken.</p> <p>And where the question of the proper performance of a contract to repair a sidewalk was by the consent of the parties determined by the court upon an inspection of the premises, a reversal cannot be had upon that question on appeal from the judgment of the trial court.</p>

<p>Negotiable instruments — Bona fide holders — What constitutes — Notice of equities generally — Recitals in paper as notice.</p> <p>A statement on the face of a note that it is made and delivered subject to an agreement indorsed upon it, and the indorsement thereon of an assignment of all claims and demands in favor of the payee against the maker, do not amount to notice that the claims and demands thus assigned consisted of outstanding notes of the maker which were not surrendered to 'him when the later note was given.</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 a verdict of a jury, and also from an order denying a motion to set aside the verdict and for a new trial.</p>

Appeal by the plaintiff from a judgment in its favor and against the defendants for the sum of thirty-three dollars and seventy-five cents, rendered in the Municipal Court of the city of ¡New York, first district, borough of Manhattan.

Appeal by the defendants from a judgment of the Municipal Court of the city of New York, sixth district, borough of Manhattan, overruling a demurrer to the complaint and awarding final judgment in favor of the plaintiff.

<p>Appeal by the defendant from a judgment of the Municipal Court of the city of Hew York, second district, borough of Manhattan, in favor of the plaintiff, rendered upon the verdict of a jury.</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>Certiorari — How issued — Proceedings — Petition — Amendment.</p> <p>Where a proceeding lias been instituted under the provisions of section 101 of the charter of title city of Buffalo to review by certiorari an assessment roll for repaving one of the streets in said city, the court may, upon the authority of section 2133 of the Code of Civil Procedure, allow the petitioners to amend their petition:</p> <p>1st: By alleging that the board of assessors counted only one resident owner of lands on the street in question, in all eases where said land was owned by and assessed to two or more resident- owners, and that by reason of such error they falsely reported that a majority of the owners had signed the petition for repaving when such was not the fact; and,</p> <p>2d: By alleging that, in violation of the provisions of the city charter, the common council ordered the street to be repaved with “ German rock asphalt and cement company’s standard asphalt Spec. ‘ B ’ on concrete base ” although no bid was reported to the common council for any such pavement.</p>

<p>Cebtiobabi to review an assessment of the real property of relator.</p>

<p>Eminent domain —■ Measure of compensation —■ Costs — Lands taken for Catskill aqueduct.</p> <p>The statute providing for the acquisition of lands for the Catskill aqueduct (L. 1905, ch. 724, as amended by L. 1906, eh. 314) authorizes an allowance to parties of sums “ as expenses and disbursements including reasonable compensation for witnesses,” which is substantially a provision for costs; and section 3240 of the Code of Civil Procedure is therefore not applicable to a proceeding for such purpose.</p>

<p>Motion to confirm reports of commissioners of appraisal.</p>

<p>Eminent domain — Measure of compensation — Costs — Lands taken for public parks in Westchester county.</p> <p>In. proceedings to acquire by condemnation lands for public parks in Westchester county, the court will not award to the owner indemnity for unusual compensation to his counsel or expert witnesses made in the hope of securing an unusual award.</p> <p>Such allowances" should be the same to both sides, where it appears that the labor performed is equal.</p>

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

Motion to punish P. Maxwell Sayford, cashier of the defendant bank, for disobeying subpoena duces tecum recjuiring defendant to produce certain books and documents.

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

<p>Motions for temporary injunctions.'</p>

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

<p>Villages — Method of exercising power of village — Preventing Sanger from fire.</p> <p>The provision of the Village Law, authorizing the board of trustees to prevent the use in any building of materials liable to take fire, is intended to authorize the prevention of the use of such materials in the structure of the building and not to prevent tin use of a building already erected for the storage of such materials.</p> <p>The trustees of a village may not by injunction restrain the erection of a wooden building where they have not exercised the power conferred upon them by the Village Law to enact ordinances establishing fire limits and preventing the erection therein of structures liable to take fire.</p>

<p>Costs — Payment and enforcement thereof — Staying further proceedings in actions till costs paid — Legal and equitable actions.</p> <p>The rule, that where a second action has been brought by the plaintiff against the same defendant upon the same cause of action the plaintiff’s proceedings in the second action will be stayed until the costs awarded to the defendant in the former action are paid, is not applicable to a case where the first action was brought in equity and the second action is at law upon grounds which could not constitute a right of action in equity.</p> <p>Where, in an action to set aside a conveyance of real property for deceit, the court, being unable to grant equitable relief because the defendant had conveyed the property to, others who were not made parties to the action, awarded the plaintiff a money judgment for the amount of her damages proven; and the Appellate Division, on appeal from such judgment, held that the court below should have dismissed the complaint with or without costs and should have left the plaintiff to her remedy at law; and, thereupon, the plaintiff having moved for leave to discontinue, the court below ordered a dismissal of the complaint with costs and disbursements to be taxed, upon which judgment was entered accordingly, and the plaintiff, without having paid the costs thus awarded, brings an action at law to recover damages for such deceit, her proceedings in the action at law will not be stayed until her payment of the costs in the equity suit.</p>

<p>Breach of marriage promise — Promise by person already married. Divorce — Foreign divorces and allowances — Jurisdiction of foreign court — Want of personal service or notice of appearance.</p> <p>Promises of marriage where the woman has a husband living, to be carried out if she procures a divorce from her husband, are void as against public policy.</p> <p>A divorce obtained by a wife in another State without personal service upon her husband and without his appearance is void, and its validity may be questioned by one against whom the wife institutes an action to recover damages for his breach of a promise to marry her.</p>

<p>Account, action for — Particular classes of persons liable and entitled to account ■ — Between principal and agent.</p> <p>A claim against one to whom moneys have been intrusted as agent or attorney in fact for having improperly loaned them, when the amount received is stated in an agreement between -the parties and is not in controversy, cannot form the foundation of an equitable action for an accounting, but the claimant’s remedy is an action at law.</p>

<p>Corporations — Corporate name and domicile and duration of corporate life — Corporate names — Infringement of names used by other corporations.</p> <p>Trade-marks and trade-names — Infringement and unfair competition — Dissimilarity apparent on ordinary observation.</p> <p>The Salvation Army in the United. States, incorporated by chapter 468 of the Laws of 1899 of the State of New York, which publishes a paper called the “ War Cry,” cannot maintain an action against the American Salvation Army, a corporation formed under the laws of said State on January 14, 1891, and incorporated under the laws of Pennsylvania in 1896, to restrain the latter from the use of its corporate name and from using the mame “ The American Salvation Army War Cry” to designate a paper which it publishes, the similarity in the names not being calculated to deceive persons of ordinary intelligence and observation and the plaintiff having long acquiesced in defendant’s use of its name.</p>

<p>Carriers — • Carriage of goods — Limitation of liability: Power to limit liability — Under Interstate Commerce Act: Effect of clause limiting time for presenting claims.</p> <p>A provision, contained in a shipping receipt given by an express company to one shipping merchandise from New York city to Philadelphia, that the carrier shall not be responsible, nor shall any demand be made upon it, beyond the sum of fifty dollars “ at which sum said property is hereby valued, unless the just and true value •thereof is stated herein ” is in contravention of the provisions of section 20 of the Interstate Commerce Act, as amended June 29, 1906, to the effect that any common carrier receiving property for transportation from a point in one State to a point in another</p> <p>State shall be liable to the lawful holder thereof for any loss, damage or injury to such property and that no contract, receipt, rule or regulation shall exempt such carrier from the liability imposed by the statute; and such receipt does not operate to limit the carrier’s liability.</p> <p>Such provisions of section 20 of the Interstate Commerce Act are subject to the carrier’s right to adopt reasonable regulations for the conduct of its business.</p> <p>Whether a provision, contained in a shipping receipt issued by a carrier, that in no case shall it be liable for any loss or damage unless the claim therefor shall be presented to it, in writing, at its office, within sixty days after the date of the receipt, in a statement to which the receipt itself shall be annexed, is a reasonable regulation, is a question of fact and cannot be determined upon a demurrer.</p>

<p>Demurrage — ¡Recovery in absence of express agreement.</p> <p>Municipal courts — Review — Saving questions for review — Question not clearly raised in court below.</p> <p>Upon an appeal from a judgment of the Municipal Court of Buffalo, the appellate court will not review a question not raised in the court below with sufficient definiteness to make it clear that there was no misunderstanding of the point ruled upon.</p> <p>A railroad company is entitled to make a reasonable charge for delay or detention of cars without any special contract in relation thereto.</p> <p>Such- charge may be made not only for its own cars but for the cars of another company which it uses and for the use of which it is liable to pay the owners.</p>

<p>Banking — Deposits — Certificates of deposit — Enforcement of payment — Provisions of Banking Law unconstitutional.</p> <p>Constitutional law — Obligation of contracts and vested rights — Regulation of remedies — ■ Remedies subjecting banks to double liability.</p> <p>The provisions of sections 227 to 238 of the Banking Law, authorizing a person who claims to be the owner of a certificate of deposit which is alleged to have been lost or destroyed to maintain a proceeding to enforce payment thereof, are unconstitutional for the reason that the Legislature cannot cancel the rights of a bona fide holder of the certificate, as that would impair the obligation of the contract; and the statute therefore imposes upon the maker of a certificate of deposit a liability to pay the amount of the certificate under the provisions of the statute and to pay it a second time to a bona fide holder who might produce it and therefore impairs the freedom of contract of the maker of the certificate.</p> <p>Nor can the constitutionality of the statute be upheld upon the ground that it affects the remedy merely since it attempts to extinguish the contract altogether as to a bona fide holder after the amount has once been paid by the maker of the certificate under the provisions of the statute.</p>

<p>Consideration — Necessity of consideration and of mutuality of obligation— Promise to waive rights — Forbearance as consideration.</p> <p>Corporations — Personal liability of officers to creditors — Liability of officers for failure to make report or for false report — Condition precedent to action for failure to file report — Waiver of condition precedent.</p> <p>Limitation of actions; Statutes of limitation — Waiver of bar: Period of limitation — In general — Change of period by agreement.</p> <p>Waiver — Condition precedent to action — Finality.</p> <p>A written agreement, made by a creditor with the directors of a corporation who were liable under the former statutes for the debts of a corporation for their failure to file annual reports, in consideration of the creditor’s holding its claim against them until the 'receivership of the debtor corporation should be closed without taking any action thereon,’ that they would waive any defense by way of the Statute of Limitations or on account of the failure to serve a written notice upon the directors of intention to hold them liable, such waiver being “intended to prevent defenses which are now ripening from lapse of time from becoming established,” assuming that originally it could not have been enforced for lack of mutuality or of consideration, becomes binding upon the directors who were parties thereto after the creditor, relying upon it, has delayed bringing its action against the directors until the termination of the receivership.</p> <p>Whether a contract intended to suspend the operation of the Statute of Limitations is valid, queere.</p> <p>The provisions of. chapter 354 of the Laws of 1901, repealing the statute imposing personal liability upon the directors of a corporation for failure to file annual reports, that the act shall not affect any right of a creditor of a corporation against any directors under the law then existing, providing action thereon be commenced within six months after the statute takes effect, is not a statute of limitations but imposes a condition precedent on the right to bring an action; a,nd such a condition precedent may be waived.</p> <p>There can be no temporary waiver of a condition precedent, but a condition precedent when once waived is gone forever.</p>

<p>Ac tío it to declare an easement abandoned. Demurrer to complaint.</p>

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

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

<p>Injunction — Who and what may be enjoined — Acts of public corporations and officers — Enjoining police officers.</p> <p>In the inspection of a house where it is charged gambling is being conducted, the police have no right to use axes and crowbars and rip up a floor and smash furniture generally.</p> <p>Such conduct by the police is clearly an act of oppression and the offenders should be criminally prosecuted; but as an injunction will not aid the owner of the property thus destroyed, or undo the wrong already committed, a motion therefor will be denied.</p>

<p>Action against a life insurance company.</p>

<p>Action to foreclose a mechanic’s lien.</p>

<p>Deivlubbeb by the defendant to plaintiff’s complaint.</p>

<p>Taxes — Persons, objects and interests taxable — Mortgages and contracts for sale of real property.</p> <p>A contract for the leasing of real property for five years, with provision for the sale thereof at the expiration of that term or at an earlier date in certain events at the option of the parties, where the agreements of lease and purchase are so blended as to be inseparable and the vendees are entitled to possession thereunder, is an executory contract for the yale of real property under which the vendee has or is entitled to possession within the meaning of section 290 of the General Tax Law, and, therefore, taxable.</p>

<p>Action for specific performance of a contract for the sale of land.</p>

<p>Wills — Interpretation and construction — Expenses of the estate, charges, advances and payment of debts arid legacies — Rules and implications — Implied charges on lan£ — Gift of remainder or residue after directing payment of legacies or debts.</p> <p>Where a testator in the fourth clause of his will expressly charged his real estate with- the payment of the “ foregoing bequests ” and in subsequent clauses made other bequests and finally disposed of the residuary estate in which real and personal estate were blended “ after paying the above bequests ”; and where the facts appear to preclude any possible inference that the testator did not realize that his personal estate was insufficient to pay his debts and legacies, as well as any possible inference that he may have expected or intended before his death to remove the difficulty by-creating a personal estate sufficient to pay the same, an intention will be inferred that all of the legacies should be charged upon his real estate.</p>

<p>Appeal from a judgment of the Municipal Court of the city of Buffalo.</p>

<p>Proceeding for the judicial settlement of the accounts of administrators.</p>

Appeal by the plaintiffs from an order of the Municipal Court of the city of Hew York, third district, borough of Manhattan, modifying a judgment rendered in favor of the plaintiffs.

Appeal by the plaintiff from an order of the Municipal Court of the city of New York, sixth district, borough of Manhattan, rendered in favor of the defendants.

<p>Appeal by the defendants from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of 11 cw York, first district, borough of Manhattan, for the sum of $382.75.</p>

Appeal by the defendant from an interlocutory judgment of the City Court of the city of Hew York sustaining the demurrer of the plaintiff.

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

Appeal by the plaintiff from a judgment in favor of the defendants, rendered in the Municipal Court of the city of Hew York, seventh district, borough of Manhattan.

Appeal by the defendants from a judgment of the Municipal Court of the city of ¡New York, second district, borough of Manhattan, in favor of the plaintiff, rendered after a trial by the court without a jury.

<p>Municipal Courts: Procedure — Jury — Time for demanding: Review-Saving questions for review — Denial of jury trial.</p> <p>Under section 231 of the Municipal Court Act the omission of a defendant to demand a jury trial on joinder of issue under the original pleadings is not a waiver of his right to a jury upon the joinder of issue under amended pleadings which are in writing.</p> <p>Where a defendant’s motion, in the Municipal Court for a jury trial is seasonably made, he is entitled to an exception to a denial thereof; and the entry of an order denying his motion and an appeal from said order are unnecessary, as proceeding with the trial is no waiver of defendant’s rights.</p>

Appeal by the defendant from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of New York, fifth district, borough of Manhattan, by default, and from an order denying a motion to open said default.

<p>Municipal Courts — Procedure; Pleading; Complaint — Sufficiency-Effect of bill of particulars; Demurrer — To oral complaint: Judgments— Interlocutory judgment on demurrer.</p> <p>The provision of section 145 (2) of the Municipal Court Act of the city of New York, that a demurrer to a written complaint must be in writing, is not in derogation of the preceding declaration in said section that pleadings, including demurrers, may be oral; and a written demurrer may be interposed to an oral complaint.</p> <p>The words “ Complaint Personal Injuries,” etc., indorsed upon a summons issued by the Municipal 'Court of the city of New York, do not amount to a plain and concise statement of facts constituting a cause of action; and the service, eight days after joinder of issue, of a bill of particulars creates no issue of fact not theretofore tendered defendant; and plaintiff, upon the filing of a written demurrer to such complaint, should have been allowed to amend under section (4) of the Municipal Court Act.</p> <p>Where plaintiff entered a paper styled “Interlocutory judgment on demurrer ” which had rather the incidents of an order than a judgment, but no point or contention based upon the discrepancy was raised on appeal from the so-called interlocutory judgment, it will be presumed that there was such a judgment.</p> <p>Dayton, J. dissented.</p>

Appeal by Marie L. Jackson from a final order in favor of the landlord, entered in the Municipal Court of the city of Hew York, fourth district, borough of Manhattan.

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

<p>Eminent domain — Possession pending proceeding and making compensation before final decree — Power to take possession pending condemnation proceedings — Amount of deposit to be required.</p> <p>The provisions of section 3380 of the Code of Civil Procedure were intended to permit the plaintiff in. condemnation proceedings to obtain possession of the property condemned, upon depositing a sufficient amount to fully compensate the owner; and, where the owner interposes an answer grossly overstating the value of the lands sought to he taken, the court is not bound thereby, but will treat the answer as though no value were stated therein.</p>

<p>Insane persons — Guardianship — Compensation of committee — Personal services of wife in caring for incompetent.</p> <p>Upon the settlement of the account of a committee of the personal property of an incompetent person after his death, the court cannot allow to the late committee, his widow, compensation for her personal care of him during the last three years of his life, while suffering from paresis and unable to take care of himself, as extra compensation as the committee of his property.</p>

<p>Intoxicating liquors — Revocation or forfeiture of license — Proceedings to annul certificate — Time for commencing.</p> <p>It is no defense to an application for the revocation of a liquor tax certificate that the certificate had been surrendered prior to the discovery of the violation and the commencement of the proceedings to revoke. Such proceedings may be instituted at any time during the excise year for which the certificate was issued.</p>

<p>Master and servant — The relation — Nature and existence of the relation — Under contract to work farm.</p> <p>Summary proceedings — Persons against whom proceedings may be brought — Servants and employees.</p> <p>An agreement by which one undertakes to have another's farm managed and worked in a good and workmanlike manner, but does not agree to give his personal services for that purpose, and by which it is provided that, if he dies, the agreement is to be carried out by his personal representatives, and no provision of which prevents his employing another person to do the work, does not create the relation of master and servant between the parties; nor are the provisions of subdivision 1 of section 2331 of the Code of Civil Procedure, relating to the occupation of premises by a servant and the termination of the relation of master and servant for the purpose of instituting summary proceedings to recover real property, applicable thereto.</p>

<p>Affidavit — Form and requisites — Venue; Authentication — Failure of officer to state his authority.</p> <p>Where the venue of an affidavit is a county in which the notary who administered the oath does not appear by the jurat or any statement appended to his signature to be authorized to act, the affidavit must be regarded as a nullity; and it cannot be supported by other affidavits showing the notary’s authority.</p>

<p>Demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action.</p>

Demubbers by the defendant Arthur Schuler to three separate causes of action set forth in an amended complaint, the demurrer in each case being upon'the ground of failure to set forth facts sufficient to constitute a 'cause of action.

<p>Carriers — Rate of freight — As affected by Public Service Commission Act.</p> <p>A contract between a common carrier and a shipper, for a ■freight rate less than the tariff rate fixed by the schedule filed by the carrier with the Public Service Commission and posted as required by section 28 of the Public Service Commission Act, is in violation of the act; and neither party to the agreement can avail himself of its terms, nor will either party be protected thereby.</p> <p>Where the freight agent of a railroad company agreed with the defendant to carry milk in cans and bottles on the plaintiff’s' railroad from one station to another in the State of New Yo:-k at a rate less than the tariff rate fixed by the schedule filed and posted' as above stated, the plaintiff is entitled to recover the difference between the rate fixed by the schedule and the amount paid under such agreement.</p>

<p>Local improvements — Assessment districts and persons and property assessable — Property assessable — Exemption of cemetery association.</p> <p>Under the provisions of chapter 310 of the Laws of 1879, which provide that no land actually used and occupied for cemetery purposes shall be sold under execution or for any tax or assessment, nor shall said tax or assessment be levied, collected or imposed, a rural cemetery association is not liable to be assessed for building a sidewalk along its lands, used exclusively for cemetery purposes and which have been so used since the incorporation of the association and which have been plotted for burial lots and sold to many persons for burial purposes who have a proprietary right to use the lots for such purposes, and no action can be maintained by a municipality against the association to recover such an assessment, and the assessment itself is illegal and void.</p> <p>Chapter 539 of the Laws of 1898, constituting section 113 of the Village Law, was not intended to repeal chapter 310 of the Laws of 1879.</p>

Demurrer by the defendant United Wireless Company to the complaint upon the points: First. That the court has not jurisdiction of the subject of the action, and Second. That the complaint does not state facts sufficient to constitute a cause of action.

<p>Mortgages: Absolute deed as mortgage; Intention of parties — Intention governs without regard to form of agreement; Necessity of promise to pay; Estoppel to claim deed a mortgage — As to third persons; Evidence as to character of instrument: Transfer of title of mortgagor — In general — Remedy against mortgagee for selling property.</p> <p>Where a deed is intended to operate as a mortgage it matters not whether the agreement is in terms one of repurchase, redemption or for reconveyance.</p> <p>In such a case parol evidence is competent to show that the deed is intended as a mortgage; but such evidence must he clear, unequivocal and convincing beyond a reasonable doubt.</p> <p>Where, about the time plaintiff’s lands are sold on a mortgage foreclosure, they are conveyed by the grantee of the purchaser to plaintiff’s half-brother for less than their value, and the proof shows that the conveyance to plaintiff’s half-brother was intended to secure him for the repayment to him of the purchase price, with interest, such conveyance will be held to he a mortgage, though the plaintiff assumed no personal liability for such repayment.</p> <p>And where the plaintiff’s half-brother afterward sold the lands to a purchaser in good faith for a much larger price, as the plaintiff had clothed her half-brother with the indicia of ownership, and, apparently, acquiesced in the sale, the purchaser will be protected; but the plaintiff’s half-brother will he compelled to account to her, in an action brought for such purpose, for the amount, received by him, less his claim and interest and the taxes he had paid.</p>

<p>Motion to set aside a verdict.</p>

<p>Marriage — In general — Requisites and validity — Filing of contract — Consequences of failure.</p> <p>Where a contract of marriage was properly executed and in all other respects complied with chapter 339 of the Laws of 1901, the failure to file the contract does not invalidate the marriage or subsequent agreement for a separation between the parties.</p>

<p>Pleading — Demurrer — Grounds of demurrer to complaint — Lack of legal capacity to sue — Use of plaintiffs firm name.</p> <p>Process — Issuance and formal requisites — Designation of parties — Partners — Individual and not firm names.</p> <p>An action by a partnership must be brought in the individual names of the partners.</p> <p>A complaint by “ Union Wine Company” which was alleged to be a partnership is demurrable on the ground that the plaintiff has not legal capacity to sue.</p>

<p>Joint agreements and liabilities — On contracts — Under joint debtor acts — Compromise by joint debtors — By one partner.</p> <p>Partnership — Rights and liabilities as to third persons — Commencement and termination of liability — Liability by release of co-partner.</p> <p>Pleading — Demurrer — Right to demur to answer or counterclaim'— When demurrer to answer lies — New matter in answer — Effect of presence of denials.</p> <p>So long as denials of material allegations of a complaint arc suffered to remain in a defense thereto, a demurrer to new matter therein pleaded will not lie, in advance of a motion to strike out the denials, though the new matter by itself constitutes no defense.</p> <p>While a partnership continues, the release of one partner from an obligation of the firm releases his copartner.</p> <p>Section 1942 of the Code of Civil Procedure, permitting separate compositions with joint debtors, is limited in partnership cases to compositions entered into after the dissolution of the firm.</p>

<p>Pleading — Complaint or declaration — Conditions precedent — Leave to sue receiver.</p> <p>Receivers — Administration and management of the property — Actions by and against receivers — Pleading — Action against receiver — Leave to sue.</p> <p>A - complaint in an action against a receiver, as such, is not demurrable because of failure to allege that the action was brought by leave of the court.</p>

<p>Certiorari proceedings.</p>

<p>Fraudulent conveyances — What constitutes — Conveyances to creditors— Eight to prefer creditors.</p> <p>Insolvency — Preferences and transfers by insolvent — Preferences by insolvent; Fraudulent transfer.</p> <p>Liens — Nature, establishment and termination — Loan of moneys used to pay life insurance premiums in absence of agreement for lien.</p> <p>Trusts — Creation and declaration — Execution and delivery; Effect of revocability.</p> <p>The delivery of policies of life insurance made payable to a person as trustee at such person’s place of business on Saturday by the insured with a letter requesting such person, in case anything should happen to the insured, to collect the policies and pay over the proceeds to certain creditors of the insured and to his wife in the manner specified, created a lawful trust, although the papers did not come into -the personal possession of the trust p-' until the following Monday and until after the insured had, on the intervening Sunday, committed suicide by shooting himself, and should not be treated as an attempted testamentary disposition of property.</p> <p>The mere circumstance that the trust was subject to revocation on the part of the settlor during his lifetime is not inconsistent with a lawful trust which would continue effective as long as it remained unrevoked.</p> <p>In such a case, the preferential scheme of the trust to pay certain creditors to the -exclusion of others cannot be held to have been intended as a general assignment for the benefit of creditors, nor intended.' to avoid the statute prohibiting preferences for more than one-third of the debts of an assignor of an assigned estate and was not, therefore, avoidable by the unpreferred creditors.</p> <p>Persons who loaned the decedent money which he used to pay the premiums upon the policies are not entitled to a lien thereon as security for the repayment of such moneys when they were not loaned under any agreement having reference to such policies.</p>

<p>Action to obtain construction of will of Mary E. Bayley, deceased.</p>

<p>Criminal procedure — Stay of proceedings after conviction — Grounds for stay — Doubtful rulings.</p> <p>The test of propriety of granting a certificate of reasonable doubt in a criminal case is not that the judge to whom the application is made should be 'satisfied that the judgment of conviction will be reversed, but that questions of law are raised sufficient for the consideration of the appellate tribunal.</p>

<p>Motion to punish defendant for contempt for disobedience fo order in supplementary proceedings.</p>

<p>Appeal by the plaintiff from a judgment of the City Court of the city of ¡New York, rendered upon the direction of a verdict dismissing the complaint and from an order denying a motion to set aside the verdict and for a new trial.</p>

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

<p>Covenants for title — Performance or breach — Incumbrances — Violations filed by municipal authorities.</p> <p>Municipal corporations — Interpretation and effect of ordinances — What constitutes violation of ordinance — Failure to install water meter.</p> <p>Vendor and purchaser — Title and incumbrances — Incumbrances generally — Violations of municipal ordinances — What constitutes a violation.</p> <p>A notice by the commissioner of water supply to the owners of a tenement-house to install a water meter which states that, in ease of their failure or neglect so to do, the meter will be placed therein by the department and the expense will be charged to them, is not a “ violation ” within the meaning of a contract to convey the property free from all violations filed against the premises in any of the municipal departments of the city of New York.</p> <p>To constitute a lien or incumbrance for the expense of installing a water meter by the commissioner of water supply, the amount of the charge must be ascertained or determined; and where, at the time of the conveyance of the premises in which the department of water supply has installed a water meter, the city plumber has rendered a bill for the work and the work has been inspected and certified as properly done but the bill has not been certified by the water department to the comptroller and the bill has not been mailed to the premises, the amount has not become a lien which will operate as a breach of the covenant against incumbrances in the deed of conveyance.</p>

Appeal by the plaintiff from a judgment of the City Court of the city of Hew York, dismissing the complaint, with costs.

Appeal by the defendant from a judgment of the Municipal Court of the city of Mew York, fifth district, borough of Manhattan, rendered in favor of the plaintiff, and from an order denying its motion to vacate said judgment.

<p>Appeal by the plaintiff from a judgment rendered in the Municipal Court of the city of Hew York, ninth district, borough of Manhattan, dismissing the complaint at the close of the plaintiff’s case.</p>

<p>This is an appeal from a judgment of the City Court of the city of New York dismissing the complaint:</p>

Appeal by the defendant from a judgment of the Municipal Court of the city of Hew York, fourth district, borough of Manhattan, rendered in favor of the plaintiff.

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

<p>Municipal Courts — Procedure — Process — Amendment — Designation ol defendant’s official capacity.</p> <p>Where an action has been commenced in the Municipal Court of the city of New York by the proper service of a summons anu complaint upon defendants as receivers of the New York City Railway Company, the court has power to permit the summons and complaint to be amended so as to designate the defendants as receivers of the Metropolitan Street Railway Company.</p>

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

Appeal by the defendant from a judgment of the Municipal- Court of the city of ¡New York, seventh district, borough of Manhattan, rendered in favor of the plaintiff.

Appeal by the tenant from a final order of the Municipal Court of the city of Yew York, seventh district, borough of Manhattan, rendered in favor of the landlord in the first action. Appeal by the landlord from a final order rendered in the same court in favor of the tenant in the second action.