Volume 62 — New York State Reporter

<p>1. Trtai,—Jury—Waiver.</p> <p>In an action to enforce a mechanic’s lien, the court must grant an application, siasonably made, for trial by jury of questions of fact arising on a counterclaim for damages.</p> <p>2. Same.</p> <p>When the right to trial by jury, in such case, is not waived.</p> <p>3. Same.</p> <p>Rule 31 of the general rules of practice do not apply in an action to foreclose a mechanic's lien.</p>

<p>Appeal from judgment entered on verdict of a jury, rendered under direction of court.</p>

<p>Costs—Stenographer’s fees.</p> <p>Back party will be directed to pay one-half tke expense for stenographer's minutes, where they are required for the use of the court.</p>

<p>Motion for re-taxation of costs.</p>

<p>Appeal by plaintiff from order requiring additional security for costs.</p>

<p>The plaintiff recovered judgment against the defendant, after a trial had before a referee, and both parties appealed; plaintiff, on the ground that the referee should have awarded <$4,914.62, instead of $2,803.27, the sum allowed; and defendant, on the ground that even the reduced sum was an excessive recovery.</p> <p>The court determined (1) on the plaintiff’s appeal, that the judgment was not inadequate, and disposed of such appeal by affirming the judgment as against the plaintiff. (2) It determined on the defendant’s appeal that the judgment was excessive, and that it must be reversed and a new trial had, unless the plaintiff stipulated to reduce the recovery from $2,803.27 to $1,370.42, in which case the judgment for that amount would be affirmed. Proper provision was also made as to the costs upon the two appeals.</p> <p>The plaintiff agreed upon the form of the general term order. Plaintiff, however, declined to stipulate to reduce the recovery; so that one judgment was entered on the order, affirming the judgment on the plaintiff’s appeal, but awarding a new trial on the defendant’s appeal. (See 60 St. Rep. 625; 29 Supp. 698.)</p> <p>The plaintiff now moves to resettle the order by having it contain the simple award of a new trial. .</p>

<p>Attorney and client—Lien.</p> <p>Under § 66 of Code, an imprisoned defendant is not entitled to a discharge until the fees of plaintiff’s attorney have been paid, though plaintiff has consented to such discharge.</p>

<p>1. Appeal—Court op Appeals.</p> <p>When the order of the commissioners, appointed under chap. 140 of 1850, as amended, has been confirmed and the order of confirmation has been affirmed by the general term of the supreme court, no further appeal can be taken.</p> <p>2. Railroads—Commissioners’ report—Vacation.</p> <p>General term may set aside and vacate the commissioners’ report for errors of law or of fact, and direct a new appraisal.</p> <p>3. Same—Second report.</p> <p>The provision that the second report shall be final and conclusive, has its limitations.</p>

<p>1. Negligence—Question eor jury.</p> <p>Where, in an action for damages caused by Are alleged to have been kindled by sparks from defendant’s engine, evidence was uncontradicted that the “ straight stack spark arrester” was in general use on many of the large railroads and that it arrested sparks as well as known kind, tlio submission to the jury oí the question as to defendant’s negligence in the adoption of a proper system or kind of spark arresters, is error.</p> <p>2. Same.</p> <p>To justify verdict in such case, the jury must find that the building was destroyed by reason of the fire being communicated thereto directly from the engine, or without the assistance of other agencies.</p>

<p>Action for the specific performance of a contract for the purchase of certain real estate.</p>

<p>1. Sale—Title.</p> <p>No one, unless furnished by the owner with the indicia, of title, can transfer to another a better title than he has himself. .</p> <p>Íí. Same—Pledge.</p> <p>Nor can one, who has no title whatever to the property, pledge it.</p> <p>3. Same—Act op 1884. .</p> <p>A pledgee is not a subsequent purchaser or mortgagee within the meaning of chap. 315 of 1884.</p>

<p>1. Husband and wine—-Entireties.</p> <p>An estate by entireties is created only by a conveyance to husband and wife.</p> <p>2. Same.</p> <p>A conveyance to the wife by the husband’s cotenant is inoperative to create such an estate.</p> <p>8. Will—Limitation ovek—Void.</p> <p>A limitation over upon a devise of the entire and absolute estate, with an express and unqualified power of disposition in the first taker, is void for repugnancy.</p>

<p>1. Appeal—Court op appeals.</p> <p>Findings of fact, affirmed by tbe general term, will not be reviewed in tbe court of appeals.</p> <p>2. Same—First instance.</p> <p>Issues, not made in tbe pleadings or raised at tbe trial, will not be considered on appeal.</p>

<p>Naturalization—Final papers.</p> <p>Unless the oath of allegiance is signed by the applicant himself, final papers of naturalization will not he granted.</p>

<p>Constitutional law—Dun process.</p> <p>Where no process, or notice of any kind of the proceedings pending, was ever served upon the defendant, by publication or otherwise, the judgment entered therein is without due process of law. ■</p>

<p>Municipal corporation—Health department.</p> <p>The time, within which the commissioner of the department of health of the city of Brooklyn may summarily remove an employe, cannot be extended by agreement.</p>

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

<p>1. Appeal—Order overruling- demurrer.</p> <p>An appeal does not lie from an order overruling a demurrer.</p> <p>2. Same—Motion.</p> <p>The remedy is by motion, where such order is incomplete in not directing the final or interlocutory judgment to be entered thereon.</p>

<p>1. Damages—Elevated railroad.</p> <p>It does not follow that, because the trial judge found the fee value of the plaintiff’s premises, at the time of the trial, to be fully up to the value of 1873, his conclusion that the plaintiff sustained a loss to such value, is without support.</p> <p>% Same.</p> <p>Where the trial judge finds the damage to have resulted from the structure and operation of trains, no error is to be predicated of his refusal to find that no damage resulted from either cause separately.</p> <p>3. Evidence—Elevated railroads.</p> <p>Evidence of the decline of rentals of property on the same street with the property alleged to have been damaged, is relevant.</p>

<p>Appeal—Cask.</p> <p>The omission of the exhibits, introduced in evidence on the trial, from the return precludes any determination as to the matters litigated!</p>

<p>1. Appeal—Facts.</p> <p>Undisputed, facts, on which there is no finding, may be considered for the purpose of upholding a judgment.</p> <p>2. Specific performance—Proof.</p> <p>An assignment of a contract of sale of land must show that he or his assignors have been ready and able to perform their part of the contract.</p> <p>3. Same—Relief.</p> <p>A defendant in ejectment, if he asks for no such relief and does not put himself in a position to be entitled to it, is not entitled to a decree for conveyance on the performance of his part of the contract.</p> <p>4. Same—Ejectment.</p> <p>Such defendant must show that an action by him for specific performance would result in his obtaining a deed.</p>