Volume 63 — New York Miscellaneous Reports

<p>Taxes—Assessment—Assessing officers, their duties and liabilities and validity of assessment in general — State Board of Tax Commissioners — Duties in assessing special franchises—Assessment as judicial or ministerial act — Fixing value of special franchises — Relative duties of local assessors and State Board of Tax Commissioners.</p> <p>The Legislature, in providing for the taxation of special franchises, 'created a new system of taxation and brought within its range a new kind of property, intangible, invisible and elusive but of great value, and for the purpose of taxation termed “real estate;” and the duty of fixing the valuation thereof for the purpose of assessment was assigned to the State Board of Tax Commissioners, experts on the subject of taxation.</p> <p>The State Board of Tax Commissioners is required by section 42 of the Tax Law to fix and determine the valuation of each special franchise for the purpose of assessment.</p> <p>The duty of a local board of assessors as to special franchise assessments is purely ministerial and is simply to enter the amount fixed by the State Board of Tax Commissioners in the sixth column of the assessment roll as provided by subdivision 6 of section 21 of the Tax Law.</p> <p>Where the State Board of Tax Commissioners, in compliance with the provisions of section 42 of the Tax Law, has fixed and determined the valuation of a special franchise, the board cannot be required to make its valuation conform to the valuation made by a local board of assessors which had not assessed real estate within its jurisdiction at its full value, as required by law.</p> <p>Semble, the review of an assessment of a special franchise contemplated and provided for by section 45 of the Tax Law, so far as inequality of assessment is concerned, relates to assessments or valuations of different special franchises alone and not their comparison with the assessments of any other kind of property.</p>

<p>Application for the appointment of commissioners of appraisal, pursuant to chapter 4 of the Laws of 1891, as amended.</p>

<p>Summary proceedings: Persons who may bring proceedings—Agents: Answer or counteraffidavit — Misjoinder of parties — Waiver of objections.</p> <p>Where one of three tenants in common of premises has authority from his co-tenants,- he may institute summary proceedings in his own name as agent for them.</p> <p>Where, at the opening of the trial of summary proceedings before a jury, the petitioner’s counsel stated that there were three equal owners of the premises, including the plaintiff, and that the other two came into court and asked to be allowed to plead with plaintiff, but, defendants not consenting, they were not brought in as petitioners and did not plead, by the failure of the defendants to raise the question of nonjoinder of parties petitioners by answer it will be deemed waived; and a denial of defendants’ motion to dismiss the proceedings upon the ground of nonjoinder of parties petitioners was not error which calls for a reversal of judgment in petitioner’s favor; and, as under section 3063 of the Code of Civil Procedure the judgment of the appellate court must be according to the justice of the case, without regard to technical errors and defects not affecting the merits, said judgment will be affirmed.</p>

<p>Application for a bailable warrant of attachment in contempt.</p>

<p>Motion to punish a judgment debtor for contempt.</p>

<p>Supplementary proceedings: Proceedings to examine judgment debtor —Affidavit — By whom made; averments as to judgment — Service of process; order for examination—Alteration by another judge: Disobedience to order or subpoena as contempt — Jurisdiction— City Court or Supreme Court.</p> <p>Under section 2435 or section 2436 of the Code of Civil Procedure an order for the examination of a judgment debtor in supplementary proceedings may be granted upon proof of the essential facts by affidavit or “ other competent written evidence and an affidavit proving such facts made by a clerk in the office pf the attorney for the judgment creditor is sufficient.</p> <p>Where the affidavit upon which said order was granted stated that the judgment in the action was rendered upon service of the summons and complaint on defendant by substitution, as required by section 2458 of the Code of Civil Procedure, when, in fact," the service was made in accordance with section 436 of said Code, which section is mentioned in section 2458, the judgment debtor could not have been misled; and his objection to the affidavit upon the ground that it did not state facts sufficient to confer jurisdiction to grant the order for his examination is untenable.</p> <p>Where, in consequence of inability to serve upon the judgment debtor an order for his examination in supplementary proceedings, duly granted by a justice of the City Court of the city of New York, within the time designated in said order, the date of the return day was erased and a new date inserted and initialed in the margin by another justice of the court without application to the justice who granted the original order, such extension by initial is a good and valid order.</p> <p>Where the judgment upon which the supplementary proceedings were based was recovered in the Municipal Court of the city of New York and, by the filing of a transcript in the office of the county clerk, became a judgment of the Supreme Court out of which an execution was issued, a motion to punish the judgment debtor as for contempt in failing to appear for examination in supplementary proceedings in obedience to an order of the City Court of the city of New York is within the jurisdiction of said court.</p>

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

Motioh by defendant to vacate and set aside the summons herein and motion by plaintiff to amend the summons extending defendant’s time to appear.

<p>Pleading—Amendments—Amendments by leave of court: Time for amendments — On ordering a new trial: Conditions on granting leave — On amendments after one trial.</p> <p>Where, upon the trial of an action in the City Court of the city of New York upon a guaranty of $1,200 having no retrospective operation, it appeared that plaintiff sued to recover $1,-153.65 for goods sold before the making of the guaranty and $46.35 for goods sold thereafter, which latter liability defendant admitted, and plaintiff recovered judgment which was reversed on appeal, a motion for leave to' serve an amended complaint, in which the amount claimed for goods sold after the making of the guaranty is increased to $1,200, will be granted, upon payment of the costs and disbursements as taxed in the action, exclusive of the costs allowed by the Appellate Term on reversal of the former judgment.</p>

<p>Depositions — Depositions de bene esse — Defects and objections — Failure to read and subscribe and to file papers.</p> <p>The provisions of section 880 of the Code of Civil Procedure, in regard to reading and subscribing the deposition of a person examined and also in regard to filing the same within ten days, cannot be disregarded.</p> <p>Where the deposition of a defendant taken in open court fails to show that it was read over to and subscribed by him and certified by the judge taking the same, and the affidavit of plaintiff states that, through the inadvertence of his attorney, the order, deposition and other papers necessary to be filed with the clerk were omitted to be so filed, plaintiff’s motion to be allowed to obtain the certificate of the judge before whom the deposition was taken and for an order that the same then be filed nwno pro tuno will be denied, and defendant’s motion to suppress the deposition will be granted.</p>

<p>Motion to vacate and set aside an order for examination of defendant.</p>

<p>Stay of proceedings — Interlocutory stay — Stay to await event of another proceeding.</p> <p>Where, in an action brought in the City Court of the city of New York to foreclose a mechanic’s lien presumably against property of defendant, an order was made fixing the amount of a bond to discharge the lien and the lien was discharged by the execution of the bond by a surety company, and the action in the City Court now proceeds against both the owner and the surety company; and where, subsequently to the giving of the bond, an action was brought in the Municipal Court of the city of New York against tHe owner only which was founded upon the same debt, a motion in the City Court action to stay all proceedings by plaintiff in the Municipal Court action will be denied, it appearing that said Municipal Court action can be brought to a speedy determination which will end all litigation between the parties.</p> <p>If the institution of the action in the Municipal Court was in violation of the provision of section 1628 of the Code of Civil Procedure which requires leave of the court to be obtained before bringing certain actions and is made applicable to actions for the foreclosure of liens by section 3401 of said Code, the action in the Municipal Court having been brought without obtaining such leave, the court in its discretion will grant a retroactive order to take effect as of the time anterior to the commencement of said action.</p>

<p>Calendar — Order on calendar — Preference — Where police commissioner of the city of New York is a party.</p> <p>An action or special proceeding brought against the police commissioner of the city of New York is, upon motion of the corporation counsel, entitled to a preference of trial under the provisions of section 791 (2) of the Code of Civil Procedure.</p>

<p>Costs — Costs on appeal —Amount and items — Fees before and for argument.</p> <p>The costs on an appeal from the CSty Court of the city of New York to the Appellate Term of the Supreme Court are regulated by section 3251 (4) of the Code of Civil Procedure.</p> <p>Where defendant succeeded on the appeal and plaintiff’s motion for a reargument was granted, but the judges sitting atibe term at which the cause appeared upon the calendar refused to hear or permit reargument and sent the briefs submitted to the judges who had previously heard the argument, defendant is entitled to tax in his bill of costs a fee for reargument;' and a motion by plaintiff for retaxation of costs by striking out the reargument fee will he denied.</p>

<p>Motions to set aside verdict and for a new trial upon an exception to a ruling.</p>

<p>Deceit — Defenses — Provisions of contract procured by fraud.</p> <p>Where a tenant sues for damages suffered by reason of the false representations of his landlord that premises which hg was about to lease were good, dry, sanitary and healthy, whereas in fact they were subject to inundations of water; and the complaint alleges that, for the purpose of inducing plaintiff to lease said premises, defendant wrongfully concealed the facts from him, and that in reliance upon such false representations and because of such concealment plaintiff entered into the lease, an agreement that defendant should, not be liable for any damages caused by or arising from any source whatsoever in or about the premises is not a waiver of damages caused to the tenant by the fraud of the landlord; and a demurrer will He to an answer setting up such agreement as a separate defense.</p>

<p>Cancellation of written instruments — Grounds of action — Fraud, misrepresentations and duress. Duress—Arrest—Arrest of third persons.</p> <p>The use of process for a purpose foreign to that for which it was issued is an abuse that the law will not tolerate.</p> <p>Where a foreigner presumably unfamiliar with our methods of procedure is arrested at night, in an action for fraud and deceit, upon a claim of $600 and an order fixing bail at $500, and is taken to the residence of the plaintiff’s attorney by the officer who makes the arrest and telephones for his wife to come there, which she does, and the attorney and the plaintiff insist upon the settlement of other claims as well as the claim in suit as a condition of discharging the defendant from arrest, and the wife thereupon delivers up corporate stock as' security for the payment of claims aggregating $7,100, for which a conveyance of real property in trust is afterward substituted, such conveyance should be set aside and canceled at the suit of defendant’s wife on payment by her of the.claim for which the suit was brought in which the order of arrest was granted; or it should he decreed, in case of nonpayment of such claim, that the conveyance should stand as security for such claim only.</p>

Action brought in pursuance of section 1, chapter 314, Laws of 1858, as amended by chapter 740, Laws of 1894, to set aside certain transfers alleged to have been made by defendant’s testatrix in her lifetime in fraud of creditors.

Joint demurrer of several defendants to the complaint upon the ground that it does not state facts sufficient to constitute a cause of action and that causes have been improperly united.

<p>Constitutional law — Privileges and immunities of citizens and equal protection of laws — Discriminations against particular classes of citizens — Insurance companies classified.</p> <p>Although the Legislature in its application of statutory limitations upon the amount of business of domestic insurance companies has wide latitude in classification, its power is not unlimited, and* its classification must have some basis other than mere accident, whim or caprice; and, if it makes a discrimination so arbitrary as to have no reason to justify it, it contravenes the constitutional provision guaranteeing to all citizens the equal protection of the laws.</p> <p>Such constitutional provision only requires the same means' and methods to be applied 'impartially, so that the law shall operate equally and uniformly upon all persons in similar circumstances.</p> <p>The difference in the character of the business of ordinary life insurance and the business of industrial insurance justifies a difference in the limitation on the amount of new business permitted in any one year in favor of companies engaged in industrial insurance business.</p>

<p>Insurance — Premiums and assessments — Subscription and premium notes to mutual companies—Amount of assessment.</p> <p>Where a contract of life insurance provides that upon a member’s death assessments shall he made upon surviving members, according to a table of graduated assessment rates given in the certificate of membership as determined by their respective ages and the ntun'ber of certificates in force at the date of such death, and the table referred to terminates at the age of sixty years' with a maximum rate of $2.68, the company cannot, by subsequently modifying its contracts so as to fix increased rates for subsequent insurance up to sixty-five years, increase the rate upon the prior contract to a rate above $2.68 after the age of sixty years.</p>

<p>Deceit: Parties — Defendants: Pleading—Allegations of fraud in general—Agent’s fraud may be alleged to have been practiced by principal. Principal and agent—Actions by and against third persons — Pleading fraud of agent.</p> <p>In an action for damages for deceit-in inducing- plaintiff to purchase shares -of corporate stock and to expend moneys for the corporation against the persons alleged to have practiced the deception, the corporation is not a necessary party.</p> <p>In such an action, where the deceit was -practiced by an agent, it may be alleged to have been done by the principal.</p> <p>In such an action, in estimating plaintiff’s damages, the question is not whether the stock was worth more or less than it cost, but whether it was worth as much as it would have been if the representations relied upon had been true.</p>

<p>Demurrer to complaint.</p>

<p>Landlord and tenant — Termination of relation —Appropriation of premises to public use — Property taken for Ashokan reservoir — Right of landlord when terminated.</p> <p>Where the title to leased premises has been duly acquired by the city of New York as part of the Ashokan reservoir, the possession of the former owner under the statute which authorized the condemnation of the land is only destroyed by the act of the board of water supply of the city of New York in entering into possession of the premises; and until such entry the tenant is liable for the rent.</p>

<p>Marriage—Annulment of marriage — Judgment — Final judgment — Requirements on application for.</p> <p>Statutes relating to procedure are retroactive and prospective in their application without affirmative provisions to that effect.</p> <p>Where the interlocutory judgment in an action to annul a marriage was entered before the amendment of 1906, by which there was added to section 1774 of the Code of Civil Procedure the provision that final judgment must he entered within thirty days after the expiration of three months from the entry of the interlocutory judgment and cannot he entered thereafter except by order of the court on application and sufficient cause being shown for the delay, it must he shown upon an application for final judgment that the provisions of said section, as amended, have been complied with, though the three months’ period had expired before the amendment took effect.</p>

This is an action to annul the marriage of the plaintiff and the defendant, on the ground that the plaintiff was under eighteen years of age when the marriage was consummated.

<p>Motion to set aside verdict as to the defendant Stockamore, and for a new trial.</p>

<p>Action upon a promissory note. The opinion states the case.</p>

<p>Demurrer by defendant Alfred Van Horn, to the complaint upon the ground that it does not state facts sufficient to constitute a cause of action.</p>

<p>Mechanics’ liens — Foreclosure — Extent and nature of right in general — Setting aside fraudulent conveyance—Assignment of moneys due on contract.</p> <p>Where, in an action to foreclose a mechanic’s lien upon a public school in the city of New York, it appears that, prior to the completion of the work and upon the day before the filing of plaintiff’s lien, the contractor made four assignments covering the moneys to be paid by the city upon the contract and thereafter other liens were filed and, about four months subsequently, the contractor was adjudicated a bankrupt and a trustee appointed, the court has jurisdiction to determine the validity of the assignments, as they interfered with the enforcement of plaintiff’s lien.</p> <p>The lienors, at the time of furnishing materials that were used in the construction of the school, had a right to rely upon a provision of the contract which prohibited the assignment of any funds due thereunder and to assume that, as no such assignments could be lawfully made, they .would be protected.</p>

<p>Adverse possession — Necessity of hostility of-claim — When period of adverse possession commences. Former adjudication — Who are concluded — Co-heirs or co-devisees.</p> <p>Wills — Interpretation and construction — Designations and descriptions of persons, objects and purposes — Particular terms of doubtful meaning — Issue or children.</p> <p>A testator who died in 1S26 seized of three parcels of real estate was survived by two daughters, Nancy and Charlotte, his only heirs at law. By the third clause of his will, drawn by an unskilled draftsman, the second parcel was devised to Charlotte during her life and “ in ease of her death before my said daughter Nancy, she leaving no issue or children living to the age of twenty-one years, the said property bequeathed to her to go to my said daughter Nancy during her natural life and after her death to her children living to the age of twenty-one years.” By the fourth clause of the will the third parcel was devised to Charlotte for life with remainder to her “ children.” Charlotte, who was unmarried at the time of her father’s death, entered into possession of the second parcel as life tenant, and acquired her sister’s interest therein and continued in possession until her death in 1877. She was survived by five children all over age; and one of them, in 1879, conveyed an undivided one-fifth interest in the second and third parcels of real estate, which were contiguous, to one who died in 1886 devising all his property to his wife who, in September, 1908, brought an action for partition. Held, upon consideration of the context, that the word “ issue ” in the third clause was employed synonymously with "children”; that, though an estate was not directly devised to the children of Charlotte, such devise must be implied from the language in said clause “she leaving no issue or children living to the age of twenty-one years ” and that said children took a remainder in fee in the premises sought to be partitioned.</p> <p>The prior dismissal on the merits, of a partition suit brought by a daughter of 'Charlotte who claimed that the children of Charlotte took a remainder in fee, bound no one hut the plaintiff in that action and was not res adjudicata as to plaintiff in the present action.</p> <p>The plaintiff in the present action was a tenant in common with the four children of Charlotte, sharing with them the income of ■the property; and, as adverse possession did not commence to run until February, 1889, when four of the children of 'Charlotte conveyed the property in question, at the same time that a son of ■Charlotte, as trustee under his mother’s will, also executed a deed purporting to convey the Same premises, the defense of adverse possession was not available herein.</p>

<p>Action to recover taxes under the Mortgage Tax Law.</p>

<p>Criminal procedure — Costs — Liability of complainant: Amount.</p> <p>Where, upon a trial in a court of Special Sessions for an assault in the third degree, the defendant is acquitted by the verdict of a jury who find as a fact that the prosecution was malicious and without probable cause, upon the failure of the complainant to pay the costs, as ordered by the justice of the peace, judgment is properly entered against him; but it is error to include in the costs an item for counsel fees to the attorney who appeared for the prosecution.</p>

<p>Motion by plaintiff for judgment upon the answer as frivolous.</p>

<p>Motion for final Judgment.</p>

<p>Motion to confirm referee’s report of sale and for final judgment.</p>

<p>Appeal from an order taxing a bill of costs.</p>

<p>Appeal — Appealable decisions — To Appellate Division — Orders made in progress of cause — Order denying motion for stay. Municipal corporations — Notice of presentation, audit and allowance of claims — Examination of claimant by comptroller. Prohibition, writ of — Nature and grounds — Nature of remedy.</p> <p>The writ of prohibition should never be granted where the court sought to be enjoined has jurisdiction both of the subject-matter of the litigation and of the parties thereto and where the right of review by appeal exists in favor of the party who may be aggrieved.</p> <p>The right of the comptroller of the city of New York, under section 149 of the charter, to examine any person presenting for settlement an account or claim against the city commences with the commencement of an action based upon said claim.</p> <p>Where, after the presentation to said comptroller of a demand for adjustment of a damage claim for personal injuries alleged to have been sustained by an infant falling on a sidewalk which, as alleged, was permitted to be and remain in a dangerous condition, which demand was subscribed by the infant by his guardian ad Utem and by the attorneys for the claimant, the comptroller, pursuant to section 149 of the Greater New York charter, notified the attorneys for the claimant that he required the claimant to attend before Mm, at the office of the corporation counsel, for oral examination as to any facts relative to the justness of the claim, and said notice was disregarded, an application for a writ of prohibition, restraining the justice of the Municipal Court 'before whom an action based upon such claim was commenced after the expiration of thirty days from the notice of said comptroller, and all other justices of said court, as well as the plaintiff and his attorneys, from proceeding with the action, will be denied.</p> <p>While an order denying a stay of the proceedings in the action until plaintiff shall have complied with the provisions-, of section 149 of the Greater New York charter is not appealable under the Municipal Court Act, the city is not deprived of its right to test the question by review of any judgment that may be obtained against it.</p>

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

<p>Demubbeb to the complaint.</p>

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

<p>Carriers — Carriage of goods — Carrier as warehouseman — Goods awaiting delivery to consignee; Burden of proving negligence.</p> <p>Where a passenger’s trunk arrived, about noon, at the railway station at its destination, but was not called for by an express-man until ten minutes after six o’clock p. m., a time when the station is customarily closed, the liability of the carrier is that of a warehouseman from the time when the trunk was placed in its baggage room ready for delivery; and where during the night the station was burglarized and certain articles were taken from the trunk, in the absence of negligence on its part the carrier is not liable.</p>

Action by receiver to set aside a purchase by a corporation of the stock of one of the stockholders, and to cancel bond and mortgage given as security for the payment of the debt incurred by such purchase, and for money loaned.

<p>Motion to set aside verdict in ejectment.</p>

<p>Motion to set aside report of commissioners in condemnation proceedings.</p>

<p>Action by a trustee in bankruptcy to set aside an alleged fraudulent transfer of property. The opinion states the case.</p>

<p>Motion to set aside the direction of the court for a dismissal of the complaint.</p>

<p>Insurance — Premiums and assessments — In general — Persons liable for payment — Mortgagee.</p> <p>Where the owner of real property, covered by a mortgage containing a covenant to insure the buildings and assign the policies, obtains such insurance and has the usual mortgagee clause attached to the policy which provides that, if the mortgagor neglects to pay the premiums, the mortgagee will pay them on demand, the insurer cannot maintain an action for premiums against the mortgagee upon the owner’s failure to pay them, without proof of knowledge of the clause hy the mortgagee, and the express agreement on the part of the mortgagee to pay them, or facts from which such an agreement riiay be implied.</p>

<p>Action to set aside an assessment.</p>

<p>Demurrer by defendant to the third cause of action set up in the complaint.</p>

<p>Waster and servant — Master’s liability for injuries to servant: Tools, machinery and places to work — Railroad locomotives and cars: Actions — Presumptions and burden of proof — Defect in car.</p> <p>The provision of section 42a of the Railroad Law, that in all actions against a railroad corporation the existence of defects in the condition of any car, etc., shall be prima facie evidence of negligence on the part of such corporation, is applicable to electric street railways.</p> <p>Where an electric street railroad company fails to provide proper hangers so that a curtain may be hung at the window of the car between the vestibule, in which the motorman stands, and that part of the car used by passengers, and, owing to the absence of the curtain, the vestibule is flooded with light, which prevents the motorman from seeing ahead of the car into the darkness any considerable distance and, in consequence thereof, he runs his car into an oil tank wagon, moving on the track ahead of him, with sufficient force to break the vestibule and injure himself, in an action brought by the motorman against the company to recover damages for the injury he has sustained, it is not error for the court to instruct the jury that the absence of the curtain is prima facie evidence of negligence on the part of the company.</p>

Appeal by the landlords from a judgment in favor of the tenants, rendered in a summary proceeding in the Municipal Court of the city of New York, first district, borough of Manhattan.

<p>Appeal by the tenant from a final order of the Municipal Court of the city of Mew York, second district, borough of Manhattan, awarding to the landlords the possession of the premises in question.</p>

Appeal by the judgment debtor from an order of the City Court of the city of New York, denying a motion to restrain the judgment creditor from examining him in proceedings supplementary to execution, upon a judgment obtained by plaintiff against defendant.

<p>Appeal by the judgment creditors from an order of the City Court of the city of Mew York.</p>

<p>Appeal by the plaintiff from an order of the City Court of the city of New York.</p>

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

Appeal by the defendants from an order of the City Court of the city of New York, granting plaintiff judgment upon the pleadings.

Appeal by the defendant from an order denying a motion to open a default, entered in the Municipal Court of the city of New York, second district, borough of Manhattan.

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

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

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

Appeal by James E. Chandler and Henry M. T. Beekman, who are sued as copartners, doing business under the name of Chandler & Beekman, from an interlocutory judgment of the City Court of the city of New York overruling, with, costs, their demurrer to the plaintiff’s complaint.

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

<p>Municipal Courts — Procedure — Costs — To defendant on counterclaim.</p> <p>Where, in an action brought in the Municipal Court of the city of New York to recover $208, defendant recovers judgment for the excess of his counterclaim, he is, under section 332(7) of the Municipal Court Act, only entitled to costs based upon his recovery and not upon the amount of his counterclaim.</p>

<p>Malicious prosecution — Want of probable cause —Appearances.</p> <p>The possession by a person of property recently stolen raises a presumption of his guilt; and, when unexplained, constitutes probable cause for his.arrest and prosecution.</p> <p>An explanation by the accused, reluctantly made and accompanied by the concealment of the fact that the property, consisting of railroad tickets, had been found by another person who requested the accused to present them for redemption, was insufficient, under the particular circumstances of the present case, to rebut the presumption of guilt or destroy the presumption of probable cause for the arrest and prosecution of the accused.</p>

<p>Damages — Measure for torts — Personal injuries — Physical suffering. New trial — Grounds — Verdict or findings contrary to law or evidence — Inadequate damages.</p> <p>In an action for personal injuries plaintiff is entitled to recover some compensation for pain and suffering; and, where the uncontradicted evidence shows that he was confined to his bed for seven weeks, lost $204 in earnings and expended $100 for medical attendance and medicines, an order setting aside a verdict for $300 as inadequate will be affirmed.</p>

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

<p>Execution of written instruments — Formal requisites — In general — Incomplete execution.</p> <p>Landlord and tenant — Creation and existence of relation — Implied tenancy — Occupancy under void lease.</p> <p>To constitute a lease it is essential that all the elements of a contract be present and there must be both an offer and an acceptance in the terms thereof.</p> <p>A seal affixed to a lease is hut presumptive evidence of regularity and will not prevent the court from receiving evidence of the fact that no lease in fact was entered into.</p> <p>Where a proposed lease in writing, signed and sealed by the landlord and containing a provision forbidding the intending tenant to display any sign at the front of his apartment, is altered by the tenant’s attorney so as to give such permission, and the landlord refuses to sign the lease as altered but permits the tenant to occupy the leased premises, the instrument is not a valid lease, though the landlord receives the monthly rent agreed upon.</p> <p>Where one goes into possession of land under an invalid lease, Ms tenancy at its inception is a tenancy at will; but, by paying a monthly rent, he then becomes a tenant from month to month.</p>

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

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

<p>Appeal' by the plaintiff from a judgment of the City Court of the city of New York, dismissing the complaint, with costs.</p>

<p>Abutting owners — Rights and liabilities in general — Liability for injuries to passers-by. Independent contractors — Who are independent contractors: Control and supervision by employer; Questions for jury. Negligence —Actions — Evidence —Admissibility — Similar accidents.</p> <p>Where, under a license from the city, the owners of a building, during alterations thereon, were permitted temporarily to obstruct the sidewalk by placing boards thereon, and a pedestrian struck his foot against one of them that projected, fell and was injured, an action by him against the city and the owners of the building to recover damages is governed by the law of negligence and not by the law of nuisance.</p> <p>The defendant city, being in no way responsible for placing the boards upon the sidewalk and no notice to it of the defective condition of the street where the boards were being shown, was not, under the circumstances, liable to plaintiff; and his complaint as to the city was, therefore, properly dismissed.</p> <p>The defendant owners could not free themselves from the duty of keeping the street reasonably free from obstructions by showing that the work was being carried on by an independent contractor who was more or less under their supervision; and, as the evidence was sufficient to go to the jury on the question of their negligence and plaintiff’s freedom from contributory negligence, it was error to dismiss the complaint as to the owners.</p> <p>Evidence that other people had fallen at the same place at about the same time was material both on the negligence of the owners and plaintiff’s contributory negligence, and the exclusion of such evidence was error.</p>

<p>' Appeal by the plaintiff from a judgment of the City Court of the city of "New York, dismissing the complaint.</p>

<p>Witnesses — Credibility, impeachment and corroboration of witnesses — Contradiction of witnesses — In general — Matters as to which witness may be contradicted — Collateral and irrelevant matters.</p> <p>Where, in an action for personal injuries, a witness for defendant, on cross-examination, denies that he told plaintiff’s husband that he would be a witness for her for twenty-five dollars, it is error to allow plaintiff’s husband to testify, in rebuttal, that the witness said he would be a witness for plaintiff if paid twenty-five dollars; such testimony, if true, would not show hostility to plaintiff, but could only affect the general credibility of the witness.</p>

<p>Abutting owners — Eights and liabilities in general — Liability for injufies to passers-by—Openings in sidewalk. Negligence — Contributory negligence — Knowledge of danger.</p> <p>Where, in an action for personal injuries sustained by plaintiff in stepping into an insecurely protected coal hole in the sidewalk in front of defendant’s premises, it appeared that, though plaintiff as he was passing saw some coal on the street and saw that the cover was about a quarter of an inch off the hole, he nevertheless stepped thereon and was injured; and, where it also appeared that there was a clear space between the coal hole and the house which plaintiff could have used, he is not entitled to recover, wh'ether the action was for negligence or for nuisance.</p>

<p>Associations — Officers and agents — Power of officers — To bind association — Ratification of unauthorized acts.</p> <p>Where the Socialist Labor party received the benefit of money borrowed by its national executive committee without authority, and the facts were reported to the national convention of the party, it will be deemed to have ratified the loan and is liable in an action to recover the same.</p>

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

<p>Appeal from an order of the City Court of the city of New York.</p>

Appeal by the defendant from a judgment of the Municipal Court of the city of New York, first district, borough of Manhattan, entered upon a verdict of a jury in favor of the plaintiff, and from an order denying a motion to set aside the verdict.

<p>Carriers — Carriage of baggage and passenger’s effects — In general — Limitation of liability.</p> <p>Where, in an action for loss of baggage, it appeared, that plaintiff, upon delivering same to defendant at her residence for transportation to a railway station, received a coupon check upon the reverse side of which there was a clause limiting the value of the baggage to twenty-five dollars, of which plaintiff was ignorant but which the trial court ruled was binding upon her, a judgment entered upon a verdict rendered by direction of the court in her favor will be reversed and a new trial granted.</p>

<p>Municipal courts: Procedure — Costs — On dismissal for failure to serve process: Review — Judgments and orders reviewable — Order denying motion for retaxation, of costs.</p> <p>Where, upon the return day of a summons in two actions in the Municipal Court of the city of New York, the defendant appeared specially and stated that he had not been served with the summons, and upon the adjourned day again appeared, when the trial justice took proof upon the question of service and, after deciding that defendant had never been served with the summons in either notion, gave judgment in his favor and against the plaintiff for costs, the judgment should h° reversed.</p> <p>An order denying a motion for a retaxation of costs is not appealable but reviewable only on appeal from the judgment, and an appeal therefrom should be dismissed.</p>

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

<p>Former adjudication — Who may claim the estoppel — Eule that only parties or privies can take advantage of the estoppel.</p> <p>Where defendant assigned to a third person a claim against plaintiffs for an amount greater than the sum due the defendant, and the third person recovered the entire amount of the claim from the plaintiffs, the plaintiffs cannot maintain an- action against the defendant for the excess of the amount recovered over the sum justly due.</p>

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

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

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

Appeal by the defendant from a judgment entered upon the verdict of a jury in favor of the plaintiff and from an order denying a motion for a new trial, rendered in the Municipal Court of the city of ¡New York, seventh district, borough of Manhattan.

<p>Municipal Courts — Procedure: Appearance and failure to answer — What constitutes appearance: Costs. Physicians — Compensation — Measure of compensation.</p> <p>In an action in the Municipal Court of the city of New York where the pleadings are oral, the filing and service of a bill of particulars, signed by plaintiff’s attorneys whose general appearance is recognized by defendant’s attorneys and by the court, is a substantial compliance with section 332 of the Municipal Court Act requiring a written notice of appearance by the prevailing party in order to entitle him to costs.</p> <p>A physician attending defendant’s child as the defendant’s family physician is not entitled to receive compensation at the rate of a specialist in children’s diseases; and, Where he has previously charged at a certain rate for his visits, he will he restricted to such rate. ■ .</p>

<p>Negotiable instruments — Notice of dishonor — Mailing notice — To what place; Necessity .of effort to ascertain residence; Notice mailed in care of maker.</p> <p>Notice of dishonor of a promissory note may be sent to an indorser’s residence or to his place of business or sojourn, as required by section 179 of the Negotiable Instruments Law; but mailing a notice, which the indorser never received, to him in the maker’s care, at a place which is neither his residence nor place of business or sojourn, in the absence of proof of any effort to ascertain either, is insufficient.</p>

<p>Trial — Reception and exclusion of evidence — Introduction, offer and order of proof — Rebuttal.</p> <p>In an action on a promissory note, where the defense is failure of consideration, and the plaintiff, in presenting his case, testifies the note was given for a loan of money, and the defendant thereafter offers evidence tending to establish .his defense, it is error not to permit the plaintiff to offer further proof of consideration.</p>

<p>Partnership — Eights and liabilities as to third persons — Commencement and termination of liability — Liability of retiring partner: necessity of notice to creditors; Dormant partner.</p> <p>The rule that a retiring partner can only relieve himself from liability for subsequent transactions had with his former partners in the partnership name, by giving notice of his withdrawal, is applicable to a case where his retirement might affect the credit of the firm, and not merely to a case where the person dealing with the firm has knowledge of his connection with it.</p> <p>One who files a public certificate that she is doing business as a member' of a firm is not a dormant partner, and her connection with the firm is an element in its credit.</p>

Appeal by the defendant from a judgment of the City Court of the city of New York, entered in favor of the plaintiffs, after a trial before the court and a jury, and also from an order denying a motion for a new trial.

Appeal by the plaintiff from a judgment of the Municipal Court of the city of Yew York, ninth district, borough of Manhattan, dismissing the complaint, without prejudice.

<p>Motion to confirm report of referee.</p>

<p>Constitutional law — Provisions relating to courts and judicial officers — Creation of courts — Local inferior courts — What are local courts.</p> <p>The Constitution of the State of New York does not, in terms, provide that the judicial authority of the State shall be vested in the courts for which the Constitution provides; and it is only by the application of reasonable principles of construction to the Constitution that a conclusion is reached that no tribunals fulfilling the general purpose of the constitutional courts can be erected by the Legislature.</p> <p>The Legislature may not allow a portion of a town or county, not constituting either a city or village, to be dissevered for local judicial purposes from the rest, leaving the resulting subdivisions a unit for all other purposes of civil government.</p> <p>By the provisions of the State Constitution relating to inferior local courts, a territorial division less than a town is not necessarily intended and such a court may be created for a town.</p> <p>The provisions of chapter 31 of the Laws of 1861, creating the office of police justice for the town of Saugerties, which attempts to vest in the police justice exclusive jurisdiction to hear and determine all criminal cases in the town, is unconstitutional; but, after eliminating this provision, there still remains a court created, having concurrent jurisdiction with justices of the peace in criminal matters only, which neither supersedes nor fulfills the purpose of any constitutional court and the creation of w.hich was within the power of the Legislature.</p>

<p>Civil Service — Removals and reinstatement of veterans — Right to hearing.</p> <p>Municipal corporations — Officers and agents — Officers and employees other than mayor and common council — Compensation — In general.</p> <p>Although the absence of an inspector in the tenement-house department of the city of New York for two days, without leave, is ground for his removal by the tenement house commissioner; yet, where the inspector is a veteran of the Spanish War, he is entitled to a hearing upon charges properly preferred.</p> <p>The rule of the tenement-house department of the city of New York that, in case of the sickness of an employee, notice must be sent at once to that department in writing and a doctor’s certificate must be furnished to the effect that the employee is physically unable to perform his duties, does not require that the doctor’s certificate be furnished at once; and, where notice is given at once and the doctor’s certificate is mailed within three days after the beginning of the employee’s illness, the certificate is in time.</p>

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

<p>Motion for a writ of mandamus to compel the payment of rebate on a liquor tax certificate assigned to plaintiff.</p>

<p>Application for an order to submit to a special town •meeting the four propositions set forth in section 16 of the Liquor Tax Law, upon the ground that they were not properly submitted at a biennial town meeting held February 7, 1909.</p>

<p>Motion to punish the defendants herein for contempt.</p>

<p>Motion for an order of arrest.</p>

<p>Calendar — Order on calendar — Proceedings to obtain preference.</p> <p>A party is not entitled to a preference by the general rules of practice or by the special order of the court in a particular case, under subdivision 10 of section 791 of the Code of Civil Procedure, unless notice that an application for such preference would be made was given with his notice of trial.</p>

Motion to modify an order for the examination of defendant before trial and to vacate a subpoena duces tecum issued in aid of said examination.

<p>Game — Possession of game under game laws.</p> <p>The provision of the Forest, Fish and Game Law, prohibiting the possession of the carcass of a deer by a common carrier for transportation unaccompanied by the owner, is applicable to the transportation of the carcass of a deer killed and delivered to the common carrier without the State.</p> <p>The provisions of the Forest, Fish and Game Law, forbidding the possession of wild deer or venison between certain dates and making the possession thereof between those dates presumptive evidence that the same was unlawfully taken by the possessor, are applicable to a common carrier.</p>

<p>Motion to vacate a judgment.</p>

<p>Motiokt to compel purchaser on partition sale to complete purchase.</p>

<p>Motion to confirm the report of the referee.</p>

<p>Negotiable instruments—Actions — Presumptions and burden of proof —As to title.</p> <p>Where a bank upon which a cheek is drawn certifies that it is “ good when properly indorsed ” and the cheek is thereafter deposited with another bank to the payee’s credit who checks out part of the money before it is discovered that the check is a forgery, and the latter bank brings suit against the bank certifying to recover the damages it has sustained by the 'transaction, it is not necessary for the plaintiff to show that the indorsement by a rubber stamp of the payee’s name was affixed by his authority.</p>

<p>Demurbeb to complaint.</p>

<p>Consideration — Mutual promises, past consideration and moral and legal obligations — Mutual promises as consideration.</p> <p>Implied contracts — Contracts implied in fact — In general — Implication of mutual promises. Municipal corporations — Contracts — Ultra vires contracts.</p> <p>In a contract by which one agreed to pay to the city of New York a certain sum for the privilege of sorting, picking over and. appropriating to his own use certain of the refuse at specified dumps and incinerators of the street cleaning department and to load and trim scows and vessels used by the department, the city became bound by implication to provide for one year the refuse for plaintiff’s use at the places mentioned in the contract and such implied obligation was a sufficient consideration to support the agreement of the contractor to pay therefor.</p> <p>Whether the city should not itself trim the scows and receive the profit which is evidently to be derived therefrom, instead of letting a contract to another person therefor, is a question of municipal administration and not a question of law.</p>

<p>Equity — Lachés and acquiescence — What constitutes. Trusts — The trustee, appointment, qualification, resignation and removal — Beneficiary as trustee.</p> <p>Where a testator gives to his widow in lieu of dower the use and income of all his real and personal property to be paid to her by . his executors so long as she shall remain his widow, and, on her death or remarriage, gives his estate in equal portions to his children then living and the issue of such as may have died, and then gives and devises all his real and personal estate to his wife and his brother, whom he names as executrix and executor, in trust for the payment of his debts and his legacies with full, absolute and complete power and authority to such of them as may qualify and to the survivor of them to grant, sell, convey, mortgage, lease or exchange all or any part of his real estate in their discretion; and where the testator’s brother thereafter dies, leaving the testator’s widow the sole surviving executrix, such executrix is not a trustee and beneficiary of the same identical interest under the will; and a sale and conveyance of the testator’s lands by her under the power contained in the will is a valid execution of the power and passes the title to the testator’s lands.</p> <p>And where the executrix and her son after her conveyance of such lands remain silent for seventeen years, enjoying the results of the conveyance, using the money derived therefrom and practically aiding and inviting investors to rely on the deed of the executrix by their continued releases to individual purchasers, until the lands become of great value, and a judgment determining the invalidity of the titles of many purchasers claiming under the deed of the said executrix would result in disaster and ruin to many innocent people, a court of equity, in the exercise of its powers, would take upon itself the execution of the trust upon the basis of assuming that to have been done which equity and good conscience would have required to be done.</p> <p>Under the terms of the will the son took a vested remainder; and his mother and he, the life tenant and remainderman, both being parties to the present suit brought to determine their claims to the real property in question, a decree should be made establishing the validity of the deed previously executed by the executrix and barring the executrix and her son and those claiming under them from all claim to any interest in the property.</p>

Action to recover on a certificate of life insurance, issued by the defendant upon the life of James Barrett, and payable to Mary Barrett, his wife.

<p>Demurrer to separate defense upon the ground of insufficiency.</p>

<p>Action on a policy of fire insurance. Trial by court without a jury.</p>

<p>Landlord and tenant — Extensions, renewals and options to purchase or sell — Covenants for renewal — Construction.</p> <p>Where a lease for ten years provided for the payment of an increasing rent, with a maximum annual rent of $14,000 for the last four years of the term, and contained a clause giving the tenant the privilege of a renewal on the same terms and conditions, such clause is to he construed as intending a rent for the period of renewal at the maximum rate.</p>

<p>Action to recover a penalty.</p>

<p>Action to recover taxes on personal estate.</p>

<p>Demurrer to the complaint.</p>

<p>Action to recover deposit paid on signing a contract for the purchase of lands, and to establish a lien therefor.</p>

<p>Issues of law upon demurrer to complaint for insufficiency of substance.</p>

<p>Eminent domain: Condemnation proceedings; Reference back of report — To itemize award; Confirmation of report — Amount of award, failure to make awards to all owners: Measure of compensation; In general —Use to which property taken is to be applied; Benefits.</p> <p>Where, in proceedings to acquire lands for the opening and extension of a street in the city of New York, the whole of certain parcels was taken, and no claim is made that, in arriving at the awards for damages to the several property owners, the commissioners adopted an erroneous method, the fact that the damages allowed are larger than the estimate of the city’s experts and smaller than the estimate of the property owners’ experts is no ground for disturbing the awards, the amount of which is left largely to the discretion of the commissioners.</p> <p>■ Where the award is materially below the estimates of the expert witnesses on both sides and no awards were made to life tenants for their interest in certain portions of said parcel, the report will be referred back for revision and correction.</p> <p>In proceedings to acquire, for the extension of a street, the front portion of parcels of land, the commissioners, in appraising the damages, have no right to consider that the remaining part of said parcels will have a frontage on the new street and thus, indirectly, set oil benefits against damages, but must appraise the part taken as the front parts and therefore more valuable in proportion to their area.</p> <p>The commissioners in such proceeding in awarding fee damage cannot take into consideration the fact that one of the uses to which the land when acquired for the new street is to be put is its appropriation for a subway route.</p> <p>An award of damages in a lump sum will be returned to the commissioners with instructions to specifically state and set forth the items entering into the award, so as to facilitate the presentation of objections by the property owners upon motion to confirm the report.</p>

<p>Drainage: Powers of commissioners — Employment of counsel: Review of proceedings >—Practice upon appeal; Scope of review.</p> <p>Upon the hearing of an appeal, under section 10 of the statute re- ■ lating to the drainage of town lands, from the decision of the commissioners appointed to determine the necessity of such drainage, the court is confined to the consideration of questions relating to the making of the assessment itself and cannot go back of them for the purpose of determining whether the prior proceedings were regular and valid.</p> <p>But the determination of the commissioners as to the total amount to be raised by assessment is properly the subject of review upon such appeal, and the court may determine whether the commissioners have included in tie total amount of the assessment items which are not legitimate expenses of the proceeding.</p> <p>Upon such appeal, the determination of the commissioners as to the portion of the total amount of the assessment, if any, to be borne by any town, village or county may be reviewed and also the question of the fairness and justice of an assessment against a given parcel of land, as to whether it has been benefited at all, or the extent of such benefit; but the judgment of the commissioners upon these questions will not be disturbed, unless it appears that the commissioners were radically wrong and proceeded upon erroneous principles.</p> <p>Though the statute does not in express terms authorize them to do so, the commissioners have implied power to employ counsel and attorneys to advise and assist them in the discharge of their duties, whose compensation is one of the necessary “ expenses ” of the proceeding and may properly enter into the cost of draining the lands and be paid for by the assessment upon the lands benefited.</p> <p>The practice upon such an appeal is to take testimony for the purpose of enabling the court to review the determination of the commissioners upon the merits.</p>

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

<p>Proceeding to cancel liquor tax certificate under section 27 of the Liquor Tax Law, as consolidated, and motion to make a party thereto an assignee, whose transfer is not of record, as provided in section 26 of the same statute.</p>

<p>Motion to discontinue an action for an injunction.</p>

<p>Alimony — When alimony will be awarded — Actions in which alimony may be awarded — Matrimonial actions.</p> <p>Where, after a husband had for a year paid to his wife sixty dollars a month, as provided by a valid separation agreement between them, judgments are recovered against him for various instalments in five different actions and four of said judgments remain, after execution issued and returned, unsatisfied, the court, in an action brought by the trustee in the separation agreement to compel its specific performance, is without power to grant an order requiring the husband to pay the sixty dollars a month as alimony and counsel fees, for the reason that the action is not a matrimonial action within the provisions of the Code of Civil Procedure relating to alimony.</p>

<p>Security for costs — Scope of relief in general — Persons entitled to require—Foreign corporations.</p> <p>A non-resident plaintiff must give security for costs upon motion by the defendant, though the defendant is itself a foreign corporation.</p>

<p>Default — Opening default — Upon motion for other relief. Pleading — Answer or plea — Time to answer — In general — Stay of proceedings not operative as extension of time to answer.</p> <p>An order requiring a non-resident plaintiff to give an undertaking as security for costs, and staying his proceedings until it is filed and the sureties justify, does not operate as an extension of defendant’s time to answer.</p> <p>A motion to compel plaintiff to accept service of defendant’s answer twenty-one days after the service of the summons and complaint must be denied; but, where the motion papers disclose a sufficient excuse for defendant’s default and a defense upon the merits, the court, in its discretion, may allow the defendant to some in and defend.</p>

<p>Costs — Additional allowance by way of costs — Nature of action or subject-matter involved — Allowance in particular actions — Determination of a claim to an easement in real property.</p> <p>Where an action is brought to procure a determination barring a claim which defendants made to an easement in certain real estate owned by plaintiffs, the easement claimed is “ property ” within the meaning of section 3252 of the Code of Civil Procedure; and, where a finding in the decision upon which judgment was rendered in plaintiffs’ favor fixes the value of the easement claimed by defendants at a specific sum, plaintiffs are entitled to an additional allowance under said section 3252. .</p>

<p>Motion for a retaxation of plaintiff’s costs.</p>

<p>Partition — Procedure for partition—Parties — Personal representatives or trustees, etc.</p> <p>Where a testator gave the residue of his estate to his children, subject to the life estate of his widow in one-half thereof, and authorized his executors during the minority of any child, to sell or mortgage the estate of such child or its interest or expectant estate, to sell the testator’s real estate upon the expiration of the “ trust term ” and to divide his estate among the persons who should then be entitled to it, and also “ during the said trust term * * * to invest and re-invest the trust fund,” the will confers upon the executors authority in respect to real property to accomplish one of the purposes mentioned in the 76th section of the Eeal Property Law.</p> <p>In such a case the executors are entitled to be substituted as plaintiffs in an action for the partition of real property commenced by the testator.</p>

<p>Application by testamentary trustee for instructions.</p>

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

<p>Wills — Interpretation and construction — Nature and quality of estates— Future interests and vesting, possession and enjoyment — Directions for a division.</p> <p>Where a' testator gives all his estate to his wife as long as she lives and provides that after her death it is to be divided equally among his children, the children of the testator living at the time of his death take vested remainders.</p>

<p>■Claim hy a tenant for damages where land is taken for canal purposes.</p>

<p>Action to determine title to land under water.</p>

<p>Motion for new trial, after verdict for plaintiff, on the judge’s minutes and for irregularity.</p>

<p>Aotioe to determine right of way.</p>

<p>Action for breach of contract.</p>

<p>Insurance — Actions on policies—Pleading—Sufficiency of complaint on policy of life insurance—For transfer of assets of company and re-insurance of risks.</p> <p>Insurance companies — Organization and conduct of business — In general — Transfer of assets — Rights of policy-holders.</p> <p>A contract of life insurance carries with it the implication that the insurance company will continue its business and keep on hand the funds required by -law during the term of the policy, and its failure to do so constitutes a breach of the contract.</p> <p>Accordingly, a complaint in an action by a policy-holder containing allegations of the issuing of the policy, the making of an agreement with another company to re-insure the plaintiff’s policy and all other outstanding policies in the company that issued them and the transfer and assignment of the assets representing the legal reserve upon such policies and all its other assets, by the company issuing the policies to the company agreeing to re-insure, states a cause of action.</p> <p>In such a case an allegation that the company issuing the policies failed to exact ample security from the company re-insuring for the due performance of its alleged contract with the former company is not necessary, and its omission is not fatal to the complaint.</p> <p>In such a case the complaint shows not merely a threatened repudiation of its obligation on the part of the defendant company which issued the policies; but, by its overt act of re-insurance of all its policies in another company coupled with the transfer to the latter company of all its assets and its cessation of life insurance business, a breach of its contract is shown.</p>

<p>Action to reform a lease.</p>

<p>Libel and slander: Words exposing to contempt or ridicule or causing person to be shunned — In general: Trial and review — Questions of law and fact — Meaning and intent of words.</p> <p>An article which, on its face, is fairly susceptible of meaning that the plaintiff was guilty of shirking his duties as a public official and disregarding the obligations assumed by him, reflects disgracefully upon his character, holds him up to reproach, scandal and ridicule and is libelous per se.</p> <p>If an article is susceptible of two or more meanings, one of which is libelous, it becomes a question of fact for the jury to determine whether or not the article is libelous; and in such a case a demurrer cannot be successfully interposed.</p>

<p>Marriage: In general — Foreign marriages: Annulment of marriage — Power of courts; Necessity of adjudication of nullity; Defenses — Age of consent.</p> <p>It is a fundamental principle of law that each State has the right to determine the marital status of its own citizens and pre- ' scribe the terms and conditions upon which the marriage relation may be annulled or dissolved.</p> <p>Marriage partakes more of the nature of a relation than of a contract, although the relation may be established and induced by the contract to enter into it. The relation, however, is always subject to the. control of the sovereignty under which the parties to the marriage live.</p> <p>The courts of this State have ample power to annul a marriage entered into outside the State by parties under the age of consent when the parties are citizens of the State and domiciled here.</p> <p>Where a woman under the age of eighteen years, a resident of the city of Buffalo, goes to Canada and is there married to another citizen of the same city without the knowledge or consent of the woman’s sole surviving parent or guardian, and the parties at once return to this State and after living together two months separate, it will be inferred that the relation established by the marriage was intended by the parties to be sustained in the State of New York; and such relation is therefore subject to the laws of this State, so far as they authorize a dissolution thereof by judicial proceedings for any cause.</p> <p>The courts of this State do not proceed in annulling the marriage of persons under the age of consent upon the theory that the marriage is absolutely void, but on the theory that it is voidable, owing to extrinsic facts or circumstances surrounding or attending it, and do not contravene the rule of law that a marriage valid where contracted is valid everywhere.</p> <p>For that reason, the validity in a foreign jurisdiction of the marriage of citizens of the State of New York under the legal age of consent does not prevent the courts of this State from annulling the marriage of the parties after they return to their residence within the State.</p>

<p>Motioh for a new trial by the defendant upon the court’s minutes.</p>

<p>Claim for damages for personal injuries.</p>

<p>Conversion (Equitable): In general — Extent of conversion — Measured by necessity: Eeconversion — Election or intention to reconvert.</p> <p>Where a testatrix devised real property, consisting in part of an undivided interest in two piers, to her executor upon the trust to divide the same into two equal parts, the value thereof to be fixed by him, and to convey one of such parts to her stepson S. and to hold the other and collect the rents, issues and profits and apply them to the use of F., another stepson, during life, and further provided that, if at the time of her death F. should have died leaving no issue, the whole of her real estate and the proceeds thereof should go to S. and declared it to be her intention that the same should after her death go to said stepchildren if living and if either be dead without issue to the survivor of them, or with issue to such issue per stirpes and not per capita; and where after the death of testatrix her stepsons divided the real property between them, each taking one undivided thirty-second part of the piers and S. afterward died before F., held, that there was no equitable conversion of the real property of the testatrix by her will and that the widow of S. was not entitled to take one-third of his share under the Statute of Distributions.</p>

Action for the construction of a will. The decedent George Schreiner died possessed of real property from which he derived an annual income, exclusive of his residence, of about $31,000.

<p>Wills—■ Interpretation and construction: Terms defining the nature and quality of estates or interests — Future interests and vesting, possession and enjoyment — Gift to issue: Terms defining quantum or duration of estates or interests — Rules and implications — Implied cross-remainder — Devise for two lives, etc.: Actions and proceedings to judicially construe will — Doubt as to disposition of estate.</p> <p>Where a testatrix devised her real estate to her executor in trust during the life of her two sons to allow them or either of them to use, occupy and enjoy such portion thereof as they or either of them might desire, without rent,, and to rent any part not so occupied and to pay the net rent thereof to her sons and upon the death of both sons the testatrix gave the same to their issue then surviving, held, that the testatrix intended that upon the death of one of her sons the survivor should have the use of all the estate during his life and that no estate vested in the issue of the deceased son until the death of the survivor. In such a case, the infant children of the deceased son may maintain an action for the construction of the will and to determine the validity of its provisions.</p>

<p>Appeal from a judgment of a justice of the peace.</p>

<p>Appeal from a judgment of a justice of the peace.</p>

<p>Partition— Right and property —Necessity of possession or seisin — Property held adversely. Trusts — Construction of express trusts — Duration.</p> <p>Where a testator gave his real estate to his executors for the benefit, education, maintenance and support of his children and the livelihood of his wife and empowered his executors to sell it, requesting and enjoining them to invest the proceeds until his two youngest children attained the age of twenty-one years, the interest to be used for the maintenance and education of his children and the support of his wife, held, that, if a trust was created, it terminated when the youngest child became twenty-one.</p> <p>An action cannot be maintained for the partition of lands in the possession of certain of the defendants under a claim of title adverse to that of the plaintiff.</p>

<p>Action for a specific performance.</p>