Volume 64 — New York Miscellaneous Reports

<p>Justices of the peace — Appeal and error — Returns — Amendment — Setting aside.</p> <p>Where the return of a justice of the peace upon an appeal from a judgment rendered by him in favor of the plaintiffs was not filed until more than a year after the judgment was rendered and was prepared by the clerk of the attorney for the appellants with the aid, assistance and consent of the justice, and the return contains certain objections which purport to have been made by the defendants to the issuance of a commission to take the testimony of one of the plaintiffs and the receipt of the commission in evidence, and a question is raised as to whether certain objections to the issuance of the commission were in fact made until after the commission had been issued and whether certain objections to the reading of the testimony of one of the plaintiffs, taken upon the commission, were in fact made until after the testimony had been read; and the justice states in an affidavit that his return is correct except as to how and when objections were made, a motion by the respondents to set aside the return should be granted.</p>

<p>Evidence — Admissions — Scope of admissions and evidence explanatory of admissions — Evidence explanatory of admissions.</p> <p>In an action to recover the price of milk alleged to have been sold and delivered to a married woman, where she defends upon the ground that the milk was in fact sold to her husband, who kept a boarding-house, and where letters of the defendant were introduced by plaintiff admitting her liability and a book kept by plaintiff was introduced by the defendant in which the goods were charged to defendant’s husband, it was error to refuse permission to the plaintiff to explain the method of keeping accounts by which the charge was made to defendant’s husband rather than to the defendant.</p>

<p>Set-off and counterclaim — Claims which may he allowed as counterclaim or set-off in general — Demands in favor of third person — Claim assigned to defendant after commencement of action.</p> <p>In an action to recover damages for breach of a contract the defendant may not set up as a counterclaim a judgment against the plaintiff assigned to him after the commencement of the action.</p>

<p>Motion to dismiss the complaint. The opinion states the ease.</p>

<p>Attachment — Property subject to attachment — Debts owing to defendant— Situs of debt — After recovery of judgment.</p> <p>Former adjudication — Causes of action barred or merged in general — Rule of merger.</p> <p>Supplementary proceedings — Receivers — Property rights and management and disposition of property — Title of receiver in general.</p> <p>The statute providing for proceedings supplementary to the execution confers upon the court no power to compel a judgment debtor to convey to a receiver appointed in such proceedings real property situated in-a foreign State.</p> <p>An indebtedness due from a resident of another State is merged in a judgment recovered thereon in this State upon the personal service of process upon the defendant here, and such judgment cannot be attached in the State where the judgment debtor resides in an action against the judgment creditor in which the latter is not served with process.</p>

<p>Security for costs — Persons who may he required to give —Persons who are nonresidents — Office or place of business.</p> <p>The docks of a steamship company cannot he considered the office or place for the regular transaction of business of a dock laborer, employed on a wharf by the hour, whose employment has ceased and who has only a reasonable expectation of re-employment because his name is still retained on the list of employees, within the meaning of the provisions of the Code of Civil Procedure relating to requiring security for costs.</p> <p>Dayton, J. dissents.</p>

<p>Costs — Determination of right to and amount of costs >— Retaxation — Evidence generally.</p> <p>Upon a motion at Special Term for the retaxation of costs, the questions must be reviewed upon the papers and proofs submitted to the clerk at the time of taxation; and an order modifying the taxation upon affidavits, without showing what papers or records were used before the clerk, will be reversed upon appeal.</p>

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

<p>Appeal by the plaintiff from an order of the Municipal Court of the city of ¡New York, third district, borough of Manhattan.</p>

Appeal by the plaintiff from so much of an order of thCity Court of the city of New York as grants defendant’■motion for leave to amend his answer, without terms.

<p>Reference — Questions and actions compulsorily referable — Long accounts in general — What constitutes long account — Account of assets and liabilities of corporation.</p> <p>An action to recover damages for the breach of a warranty, upon the sale of corporate stock, that the corporate assets amount to a certain sum and that the corporate liabilities do not exceed another certain sum, involving not only the computation of the summaries of amounts but an examination into the correctness of the several accounts, is referable.</p>

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

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

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

<p>Appeal by the defendants from a judgment 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 plaintff from a judgment in favor of the defendant, rendered in the Municipal Court of the' city of New York, third 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, first district, borough of Manhattan.

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

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

<p>Appeal by the defendant from a judgment of the City Court of the city of New York, entered in favor of the plaintiff by direction of the court, and also from an order denying a motion for a new trial.</p>

<p>Inns and Innkeepers — Loss of and injury to property of guest — When liability ceases.</p> <p>An innkeeper’s liability for his guest’s baggage continues for such reasonable time after the guest’s departure and payment of his bill as may be necessary to enable him to secure its removal.</p>

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

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

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

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

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

Appeal by the plaintiff from a judgment of the City Court of the city of New York, rendered in favor of the defendant, and from an order denying a motion for a new trial.

<p>Motion to remove an indictment from the Court of General Sessions to the Supreme Court for trial. The opinion states the case.</p>

<p>Application for a discharge from imprisonment.</p>

<p>Motion to vacate an order for the examination of a third party.</p>

<p>Motioh to compel the payment of money to a judgment creditor.</p>

<p>Insane persons — Inquisition — Nature and form of petition — Sufficiency of allegations as to incompetency.</p> <p>Where the petition and accompanying affidavit's, in a proceeding for the appointment of a committee of the estate of an alleged incompetent, allege that she is of the age of ninety-two years, is weak in mind and body land so far deprived of reason and understanding as to he unfit to care for herself or manage her affairs . and that her eyesight has become impaired, her memory is not good and she is very easily persuaded, it is the duty of the County Court of the county in which she resides to issue a commission to inquire into the question of her imbecility.</p>

<p>Motion by the defendant to frame issues for trial by jury in an action for divorce.</p>

<p>Motion by the plaintiff to frame issues for trial by jury.</p>

<p>Sales — Conditional sales — Effect as passing title — Loss of property.</p> <p>The general rule is that, where a chattel duly delivered under a contract of conditional sale with reservation of title is totally destroyed by fire without fault on the part of either party to the contract, the loss must be borne by the vendor; but the terms of the contract may vary the rule.</p> <p>Where the consideration of a promissory note given by defendant was the delivery to him of a cash register under a contract of conditional sale with reservation of title requiring no further act to be done by the vendor, such as future delivery or the giving of a bill of sale, and before any payments upon said note became due the defendant’s club house without its fault or negligence was burned and its contents, including the register, were totally destroyed by fire, the vendor is entitled to recover the full amount of the note.</p>

<p>Motion for a temporary injunction restraining the performance of a certain contract entered into between the city of Syracuse and the Gamewell Fire Alarm Telegraph Conan pany for the installation of a central office fire alarm equipment.</p>

<p>Cause of action — Place of accrual of cause of action.</p> <p>Foreign corporations — Actions and proceedings—Nature of jurisdiction in actions — Place where cause of action arose.</p> <p>Receivers — Appointment, qualification and tenure of receivers — Proceedings for appointment and qualification — Objections to appointment— Defense not pleaded.</p> <p>Under section 1780(3) of the Code of Civil Procedure the jurisdiction of the courts of this State over an action by a nonresident against a foreign corporation must rest upon the fact that the cause of action arose in this State.</p> <p>A cause of action against a foreign corporation, growing out of transactions in a foreign State, consisting of the taking over of the assets of a copartnership, in favor of a creditor of the copartnership, to recover from the corporation the amount of his demand to the extent of the value of the assets so taken over, did not arise within this State within the meaning of subdivision 3 of section 1780 of the Code of Civil Procedure.</p> <p>Where, upon a motion for the appointment of a receiver of the corporation which was the successor of the partnership, the fact of plaintiff’s nonresidence, distinctly stated in the opposing affidavits, is not denied, it may be taken advantage of by defendant though by its answer it fails to set it up as a separate defense.</p>

<p>Motion to vacate and set aside a transcript of judgment and an execution.</p>

<p>Motion to set 'aside an order.</p>

<p>Motion by the defendant to set aside verdict in favor of the plaintiff, and for new trial.</p>

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

<p>Master and servant — Liability for injuries to third persons — Relation of parties — Right to control.</p> <p>Where the defendant, a manufacturer, arranges with a stableman to supply horses and drivers to draw his trucks to deliver his goods, and the stableman, not having enough of his own, hires a team and driver for the work; and where the defendant’s truck was loaded with his cans and accompanied by one of his employees whose duties were to visit the defendant’s customers to deliver supplies from the wagon, to collect money from the defendant’s customers and to keep an order book, marking down the number of cans delivered and empty cans taken away, and to direct the driver where to go; and where the truck, while it was being driven home with defendant’s cans on board, was driven at a fair rate of speed by the driver so close to a street car that the plaintiff, who was attempting to board the car, was struck by the truck and injured, it appearing that the defendant had at that time the right to control and direct the movements of the driver, even though be was not directly in his employ, the defendant is liable for the injury so inflicted through his negligence.</p> <p>In such a case, in determining the question of the defendant’s liability, it is not so much the actual exercise of control which is regarded as the right to exercise such control.</p>

<p>Damages Particular contracts and relations — Miscellaneous contracts — To effect transfer of insurance.</p> <p>The damages recoverable for the failure of the vendor of real property to have an insurance policy changed to the vendee’s name, in compliance with his agreement to do so, is the amount which would procure a similar policy.</p> <p>The vendor, in such a case, on his failure to have the policy transferred, does not become an insurer of the property nor liable for the amount of the policy upon the destruction of the property by fire.</p>

<p>Poor: Duty of public authorities to give relief — Definition of pauper or poor person: Settlement and removal of pauper — Liability of county or town of settlement for support of removed pauper.</p> <p>Where a woman at the time she went to the city of Syracuse with her infant children to live had resided continuously in the city of Amsterdam for more than five years and had received public aid there which was necessary for her maintenance; and, before she could gain a settlement in Onondaga county, applied for and received public assistance from the overseer of the poor of the city of Syracuse, she is a poor person within the meaning of section 40 of the Poor Law; and, upon due service upon the overseer of the poor of Amsterdam of the statutory notice of her application for relief with a request to take charge and support her and due and timely service of a notice of denial of liability by the overseer of the poor of Amsterdam, the county of Onondaga is under the statute entitled to maintain an action against the city of Amsterdam for the support of said poor person, without presenting the claim therefor to the common council of defendant.</p>

<p>Demurrer to answers in an action for money had and received.</p>

<p>Action by a taxpayer for an injunction to restrain expenditures. by a board of health alleged to be illegally constituted.</p>

<p>Action to establish a trust. Trial by court without a jury.</p>

<p>Eminent domain — Condemnation proceedings — Decree or order — Interpretation and construction.</p> <p>Waters and watercourses — Natural watercourses: Property rights in streams — Use for milling and manufacturing purposes: Pollution of streams — By deposit of sewage and refuse matter; Injunction.</p> <p>By the judgment in condemnation proceedings taken under chapter 291 of the Laws of 1889, as amended in 1890, empowering the city of Syracuse to construct a system of water works to furnish it with water from Skaneateles lake and to acquire or extinguish all water power rights upon Skaneateles creek, the outlet of the lake to be affected, the city acquired only the right to take from time to time from Skaneateles lake so much of the water thereof as it might need, and it did not -acquire the right to prohibit abutting owners along Skaneateles creek from using what flowed past their premises.</p> <p>An abutter upon Skaneateles creek, whose predecessor in title, as the owner of a paper mill situated thereon, was a party defendant in the condemnation proceedings, has a right to have surplus waters flow down the creek and over its land without unreasonable pollution or unreasonable diminution by riparian owners above it.</p> <p>Some miles below Skaneateles lake plaintiff operates its paper mill on Skaneateles creek, using the water both for power and for mixing with material from which paper is made. A half mile up stream defendant at its mill manufactures black woolen cloth and also uses the water both for power and for other purposes. Still farther up the stream are a felt mill and four paper mills and a septic tank for the conversion of the sewage of the village of Skaneateles. By the operation of these mills above plaintiff’s property the creek was considerably polluted. The defendant discharged into the stream waste products from its mill, also quantities of black aniline (lye in sufficient quantities to be destructive of fish in the stream, and also, woolen fibre. Held:</p> <p>The use made of the stream by 'defendant was an unreasonable and unlawful use which no amount of pollution of the stream by others would justify.</p> <p>Such pollution of the stream by defendant constitutes a public nuisance and is a violation of the provisions of section 390 of the Penal Code (Penal Law, § 1759) and of section 52 of the Forest, Fish and (lame Law; and, as defendant could acquire no pre-</p> <p>scriptive right to pollute the stream, plaintiff was entitled to an injunction restraining defendant from polluting the stream by the deposit therein, directly or indirectly, of the refuse from its mill, said injunction not to take effect, however, until January 1, 1910, provided defendant paid to plaintiff the sum of $200 for damages suffered by it for the continuance of the nuisance until such date.</p>

<p>Appeal from a judgment of a Justice’s Court rendered in favor of plaintiff.</p>

<p>Motion for a reargument of the motion to confirm the report of the commissioners of estimate and assessment as to Damage Parcels Hos. 8, 30 and 31.</p>

<p>Taxes: Assessment — Formal requisites of assessment — In general — Description of lands: Equalization, correction and review of assessments — Correction and review; In general — Correction by-assessors— Duty to present grievance — Waiver of grievance; Certiorari — Conditions precedent — Presentation of grievance to assessors — Sufficiency of objection.</p> <p>Where a railroad company appears before town assessors on grievance day and objects to its assessment on various grounds, such as overvaluation in fact and overvaluation in comparison with the assessment of other property, and, further, “ that said assessment is illegal in that it is not made in accordance with the provisions of the statute regulating such assessments,” such objection is insufficient to raise the question that the realty assessed is so indefinitely described that the assessment does not meet the requirements of the statute and is, therefore, illegal and void.</p> <p>tSemMe, in an assessment which describes the realty assessed in seven items, namely, (I) main line; (2) sidings; (3) % depot at D. L. & W. Jet.; (4) % transfer house; (5) engine house and water tank; (6) depot at Pavilion Center; (7) depot at Pavilion, for each of which items valuation is stated, the property assessed is sufficiently described.</p>

<p>driest on criminal charge — Preliminary complaint, information or affidavit — Setting forth particular facts.</p> <p>Where a broker receives specific stock under an agreement to hold it as collateral and pledges it as security, he is not necessarily guilty of larceny.</p> <p>But where the broker never incurred loss upon the transactions, as security for which the stock was pledged, but sold it the same day it was deposited and left the city with the proceeds, it may he inferred that the sale was made with guilty intent.</p>

<p>Hearing on writ of habeas corpus,</p>

<p>Motion to set aside a final order of dissolution made in the above entitled proceeding.</p>

Action for separation. Motion therein to compel the defendant’s attorney to disclose his client’s place of residence for the purposes of service upon the latter of an order requiring him to pay counsel fees and alimony pendente lite.

<p>Motion by plaintiff to continue an injunction, and. counter motion by defendants to vacate same.</p>

<p>Motions for judgment on the pleadings.</p>

<p>Motion for a relaxation of costs.</p>

<p>Memorandum on decision of motion for allowance of costs, etc.</p>

<p>Motion by the sheriff to direct the payment to him of poundage upon an execution.</p>

<p>Motion to vacate an order that execution issue pursuant to section 1391 of the Code of Civil Procedure against the salary of a judgment debtor.</p>

Action by a stockholder of a moneyed corporation to enforce the liability of the corporate directors for negligence in the performance of their duties,

Action to recover $430.69 damages for the wrongful delivery of a carload of apples, without production of the hill of lading, which was held by the plaintiff as security for the amount of a draft drawn against the consignee.

Action by a receiver in supplementary proceedings to recover property covered by a bill of sale given by the judgment debtor.

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

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

<p>Demurrers to complaint.</p>

<p>Counties — Liabilities of counties — Liability for maintenance of highway.</p> <p>Highways — Repairs and improvements — Liability of county to maintain.</p> <p>Independent contractors — Liabilities as between employer and contractor to third persons for torts — Contracts for public work — Construction and improvement of highways.</p> <p>Where the State has accepted a bid made by the board of supervisors of a county for the improvement of an existing road and the construction of a new one, and the county sublets the entire contract to an independent contractor, the county is not liable for damages arising from the difficulty or inability to use the road, in consequence of obstructions by excavations, machinery, implements, piles of dirt and rock, prior to the certificate and the closing of the road by the State Engineer and Surveyor in accordance with the provisions of section 11a of chapter 115 of the Laws of 1898.</p> <p>Under such circumstances there is no obligation upon the county to keep the highway in proper condition for the public use during the making of the repairs.</p> <p>Under such circumstances the contractors were not employed or authorized"by the county to close the old road before the State Engineer and Surveyor made his certificate, nor were they authorized to do any act that would unlawfully exclude the public from the highway; but the county had a right to assume that the contractors would comply with the statute and keep the road open until the closing of it was authorized.</p> <p>By the word' “ contractors,” as used in section 11a of chapter 115 of the Laws of 1898, relating to keeping open to the public roads that were being improved by contractors, the statute intends contractors who are actually doing the work.</p>

<p>Action to recover damages under contract for cultivation of land.</p>

<p>Action for dower. The opinion states the case.</p>

<p>Assignments-—-Interpretation and effect — Rule that assignee takes subject to equities — Latent equities.</p> <p>Mortgages — Assignments of mortgages — Equities in favor of third persons.</p> <p>Where one, to whom a mortgagee intrusts a mortgage that is past due together with an assignment thereof to enable him to sell it, wrongfully and fraudulently and in violation of his agreement assigns it and transfers it to one to whom he is indebted, in satisfaction of the indebtedness and for a small sum of money in addition thereto, the-assignee does not acquire title thereto.</p> <p>One who purchases a bond and mortgage which is past due acquires no better title to it than the title of his assignor, but takes •it subject to any latent equity in favor of any other person.</p>

<p>Action to restrain defendant from wrongfully using information confided to him by plaintiff.</p>

<p>Demubebbs to complaint.</p>

<p>Actiou for the annulment of a marriage. The opinion states the ease.</p>

<p>Mechanics’ liens: Notice of lien — Completion of work and furnishing of materials: Discharge, satisfaction and termination—Duration while proceedings are pending — Commencement of suit •— What constitutes: Foreclosure; Defenses — Expiration of lien; Parties and notice — Trustee in bankruptcy — Other lien holders.</p> <p>Where a principal contractor was adjudicated a bankrupt before a subcontractor had filed a lien for labor and materials furnished the contractor, the trustee in bankruptcy is a necessary party defendant to an action to foreclose the subcontractor’s lien, and is entitled to set up as a defense that, by reason of plaintiff’s failure to begin the action within one year from the filing of his notice of lien, the right to enforce it had terminated.</p> <p>A creditor of the contractor, and therefore pro hoc vice of his trustee in bankruptcy, has also the right to set up the same defense where he is also a lienor.</p> <p>Under section 9 (4) of the Lien Law, which requires that a notice of lien shall state the labor performed or to be performed or materials furnished or to be furnished, a notice of lien which states plainly on its face that all the work and materials have been done and furnished for which the lien is claimed is sufficient, and it is not necessary to state that none of the work remains to be performed.</p> <p>An action to foreclose a subcontractor’s lien to which the principal contractor and other lienors are necessary parties defendant is not commenced within the meaning of section 16 of the Lien Law as against a particular defendant by the service of the summons and complaint upon other defendants within the year.</p> <p>The mere naming of a defendant in the summons served on other defendants but not on him did not make him a party to the action and so keep his lien alive within the provisions of section 16 of the Lien Law that, if a lienor is made a party defendant in an action to enforce another lien, and the plaintiff or such defendant has filed a notice of pendency of action within the time prescribed in said section, the lien of such defendant is thereby continued, though no action to enforce the lien of said defendant was commenced within a year after the filing of his notice of lien, nor the lien extended by order.</p> <p>Where, in an action to foreclose a mechanic’s lien, another lienor is made a party defendant and duly served with the summons and complaint, his notice is, under section 16 of the Lien Law, continued, though the summons and complaint are not served upon other defendants within said year.</p>

<p>Action to reform plaintiff’s mortgage and to compel the execution of a chattel mortgage by the defendant.</p>

<p>Partnership — Dissolution, settlement and accounting — Dissolution by order of court — Grounds for dissolution by court — Incapacity of partner.</p> <p>Where a partnership contract coutemplates that each partner give a reasonable amount of time and attention to the business, the permanent incapacity of one of the partners from disease constitutes good ground for the dissolution of the partnership.</p>

<p>Taxes — Collection of taxes — Warrant and enforcement — Actions — Defenses — Waiver of defense.</p> <p>The appearance of a foreign corporation before the board of tax commissioners of the city of New York and its application in writing for a reduction of the assessment of its capital invested in this State are not a waiver of the right of the corporation to immunity from personal liability for payment of the tax levied upon the assessment; nor do they authorize a judgment therefor to be rendered against it.</p>

<p>Party walls: Reparation of walls — Termination of right.</p> <p>Specific performance — Performance by complaint — Time for performance.</p> <p>Vendor and purchaser — Title and incumbrances — Party wall agreement.</p> <p>The covenants of a party wall agreement that provides for contribution to the expense of repairing or rebuilding the party wall if it should thereafter become necessary, and which contains the further provision that the agreement shall be perpetual and at all times construed as a covenant running with the land, to bind the heirs, executors, administrators and assigns of the respective par-tie's, but that no part of the fee of the soil upon which said wall is erected shall pass to, or become vested in, either of the parties other than as now owned by them respectively, are perpetual covenants and run with the land.</p> <p>Where mortgages are- thereafter executed by the owners of both premises affected by the easement, an agreement between the owners to extinguish the easement in which the mortgagees do not join is insufficient, and the vendee of the premises under a contract which provides that the premises shall be conveyed free and clear of all incumbrance's is not bound to accept the title.</p> <p>In such a case, though the mortgages contained descriptions of so much of the land only as the respective owners held in fee, they carried with them, nevertheless, the easement of the owners in the adjoining premises which the owners could not thereafter extinguish without the consent of the mortgagees.</p> <p>Where, in such a case, the vendors were unable to convey a marketable title on the law day, but the mortgages were paid and satisfied more than a year after the time set for closing the title and over two weeks after the trial of the action brought by the vendee to recover moneys deposited to secure the performance of the contract on his part, in which action the vendors had interposed a counterclaim and asked for a judgment for the Specific performance of the contract; and where the case had been opened to enable the vendors to introduce proof of the payment and satisfaction of the mortgages; and where it does not appear that the vendee had knowledge of the payment and satisfaction of the mortgages until after he had disposed of lots and bonds which the vendors were to take in part payment of the purchase price; and where the vendors had always insisted that the party wall agreement was a personal contract and did not run with the land and that the title they tendered was marketable, it sufficiently appears that there has been such a change in the circumstances of the parties as would render performance inequitable or prejudicial, and specific performance should not be decreed.</p>

<p>Action by vendee for rescission and to establish equitable lien for amount paid thereunder.</p>

<p>Trespass — Acts constituting trespass and liability therefor — Persons liable.</p> <p>Where the owners of a farm let it to a tenant to work for a share of the produce, each party to put on a certain number of cows and to divide the cost of keeping them and the amount received from sales of milk, the tenant to acquire no title to the cows put on by the landlord, the landlord and tenant are both liable for damages caused by the cows when trespassing on adjoining lands.</p>

<p>Contempt — Procedure — Process and entitling proceedings — Service of process.</p> <p>An order to show cause, made under the provision of section 1773 of the Code of Civil Procedure in a matrimonial action for the purpose of punishing a party for contempt, may be served upon the-attorney for the party in the same manner as other orders in the case are required to be served.</p>

<p>Motion by the defendant Lillie S'. Olsen to compel the clerk to tax a bill of costs in her favor.</p>

<p>Intoxicating liquors — Revocation or forfeiture of license — Grounds for forfeiting license — Violations of law; Unintentional violations.</p> <p>In a proceeding by the State Commissioner of Excise for the cancellation of a liquor tax license upon the ground of a violation of the law in permitting a person under eighteen years of age to serve liquors, it is not a defense that the person licensed did not knowingly or purposely commit such violation.</p>

<p>Peooeeding under the Liquor Tax Act for an order revoking a liquor tax certificate.</p>

<p>Alimony — When alimony will be awarded — Articles of separation as affecting right to allowance — Unperformed agreement for support.</p> <p>It is not an answer to a motion for alimony that there is a separation agreement between the parties providing, for the payment of moneys for the support of the plaintiff and her children, where the defendant is in default in the performance of such agreement.</p>

Motion made by the defendant to vacate an order for the examination before a referee of a witness, as such, to enable the plaintiff to frame his complaint. The action is for personal injuries, claimed to have been sustained by the plaintiff while in the employment of the defendant by reason of its negligence.

<p>Motion for an order to examine defendant before trial.</p>

<p>Discovery and inspection — Examination of party before trial — Eight to remedy — Examination at instance of adverse party — When allowed in general — Whére party applying has announced himself ready for trial; Where party has been subpoenaed.</p> <p>Where an order 'has been granted for the examination of a corporate defendant before trial, and it appears that the plaintiñ, when the cause was first called for trial, announced itself ready to proceed, and it is not controverted that the officers whose examination is sought have been subpoenaed to attend as witnesses at the trial, an order for the examination of the defendant should be vacated. ' ’ '</p>

<p>Motion to vacate an order requiring the defendant’s officers to appear for examination.</p>

<p>Application to cancel a notice of pendency of action.</p>

<p>Service of papers — Admission of service — Service personally or by mail.</p> <p>Where a demurrer to an answer is served by mail and the defendant’s attorney admits service in writing, the admission is to be construed as an admission of service by mail, if it contains nothing to the contrary.</p>

<p>Municipal corporations — Contracts — Limitation of amount of liability which may be incurred under a particular contract.</p> <p>The provisions of section 149 of the Greater New York Charter (L. 1901, eh. 466), requiring the borough president to certify to the comptroller the estimated expense of executing contracts, operate to limit the expenditures which may he lawfully incurred upon a contract for removing refuse from the sewers of Brooklyn; and, where the amount of refuse exceeds the estimated quantity and the amount certified by the comptroller is insufiieient to pay for the removal of the excess, the contractor can have no claim against the city for its removal, though it is removed by him pursuant to the written order of the borough president.</p>

<p>Motion to punish the respondent for contempt.</p>

<p>Carriers — Carriage of baggage and passenger’s effects — In general: Contributory negligence of passenger — Broken lock on suit case: When carrier liable for passenger’s effects as for baggage — Jewelry and money: Limitation of liability of initial carrier — Limitation not extending to connecting lines.</p> <p>Where a railroad ticket with coupons, for a continuous passage over several roads is sold by a railroad company, each coupon for passage over a particular line stating that it is issued by the company selling the ticket on account of the company over whose line it is good for passage and intended to be detached by the latter company, and where the principal ticket bears upon its •'ace a printed statement intended to limit liability for baggage, such statement will be construed as limiting liability for loss upon the road of the company issuing the principal ticket only and is not available to the connecting companies.</p> <p>In 'such a case, where a passenger notified the conductor of her intention to alight at a certain station and asked him for assistance in taking off her baggage, and a trainman, in accordance with the usual custom of the road, came and took her dress suit case to the rear of the car and left it there while he went to lock the door of the toilet before reaching the station and gave it to the passenger when she alighted, the company is liable for the loss of jewelry and money taken from the suit case, although the suit ease was unlocked because of a defective lock but clasped at each end with the usual clasps.</p> <p>Diamond rings, suitable to the station of the passenger and intended to be worn by her during her absence, and money required for her journey are included in the contract of the carrier for the safe transportation of the passenger’s baggage.</p>

<p>Suit in equity to compel contribution for moneys paid and advanced. The opinion states the case.</p>

<p>Stockholder’s Action to redeem property of the corporation from mortgages.</p>

<p>Eminent domain — Condemnation proceedings: Petition — Sufficiency: Answer—-Defenses — Necessity of pleading: Admissibility of evidence — Under the pleadings.</p> <p>The failure of a railroad company to sufficiently allege, in its petition for the right to lay and operate its railroad through a street, i-ts ineoiporation; that it has paid the required sum pursuant to the Bailroad Law; that it has obtained from the Public Service Commission the certificate required by law, or, if so, that it has been filed or recorded, cannot be urged as preliminary objections, but such allegations should be embodied in an answer to the petition.</p> <p>Under an allegation in the petition of a railroad company in condemnation proceedings, that the petitioner has taken all the preliminary steps required by law to entitle it to institute the proceeding, proof may be given of the necessary facts showing compliance with the statute.</p> <p>Under section 3360 of the Code of Civil Procedure, a petition by a railroad company for the right; to lay and operate its railroad through a street need not state the degree of interest sought to be acquired in -the street, whether fee, easement or leasehold, nor need it point out to each owner the surrounding conditions and indicate how he in particular is to be, affected.</p> <p>The petition in condemnation proceedings should .specifically describe the property to be taken.</p> <p>Where a petition in condemnation proceedings, instituted by a railroad company 'seeking the right to lay and operate its railroad through a street, describes the property to be taken as between the dotted lines on the map accompanying the petition, which may include the part of the property lying between the center of the street and a line six feet northerly or southerly, as the case may be, from and parallel to the center line of the street car track; or, as to soma of the parcels of land, six feet on either side of the center of the street car track, but also so much of the easements of light, air and access in and to the street as shall be required by the petitioner in building, maintaining, repairing and using the track for the operation of its railroad, the petition is uncertain and indefinite as to the description of the property sought to be taken and is fatally defective.</p>

<p>Surrogates’ Courts — Procedure and review — Orders and decrees — Operation as bar or as conclusive evidence — Subjects and matters concluded.</p> <p>Where, by the decree of a Surrogate’s Court for the distribution of an estate, it was adjudged and determined that the income from certain trust funds should be paid to and was the property of the legatee thereof mentioned in the testator’s will, the decree-is res adjudieata upon a claim under an assignment of said income prior to the making of said decree.</p> <p>Under an assignment of said income, made after the entry of the surrogate’s decree, the assignee may assert the same as a defense to a claim made under a. prior assignment of the said income.</p>

<p>Indians: Indian lands — Alienation of lands — Alienation by deed: Administration of estates — Administration under tenth day or dead feast: Indian courts — Jurisdiction — Peacemakers’ Court of Tonawanda Indians: Domestic relations — Children following tribal relations of mother.</p> <p>Prohibition, writ of — Acts and proceedings of courts and judicial officers.</p> <p>The lands occupied by the Tonawanda Indians, a tribal division of the Seneca Nation, are held under a deed to the Comptroller of the State of New York for said Indians for their exclusive use, occupation and enjoyment and are subject to the political sovereignty of the State of New York; and the affairs of the Indians are governed by the laws of the land, save as special exemptions and privileges- have been conferred upon them or flow from their relation of wardship to the State.</p> <p>The Tenth Day or Dead Eeast, held in pursuance of Indian customs, at which the appointment of administrators and the distribution of the property of a deceased Indian is attempted, is not recognized by the laws of the State; and such attempted administration and distribution is without warrant of law and void.</p> <p>The Peacemakers’ Court of the Tonawanda Indians is the only court existing by authority of law on the Tonawanda Reservation and its jurisdiction includes none of the power and authority of Surrogates’ Courts in reference to decedents’ estates, nor jurisdiction to determine questions involving the title to real estate on such reservations; nor does it possess any equity powers.</p> <p>The Surrogate’s Court of Erie county has power to grant letters of administration of a deceased Tonawanda Indian residing upon the reservation within said county.</p> <p>A conveyance executed by a Tonawanda Indian in the form required by law for the conveyance of lands in this State is effectual to transfer lands held by an Indian upon the reservation by allotment or Indian title.</p> <p>Where the nephews of a deceased Tonawanda Indian, claiming to have been appointed administrators of his estate at the Tenth Day or Dead Feast and claiming ownership of his lands under tlm distribution then made, sue in the Peacemakers’ Court to recover such lands from those claiming them under a deed thereof, executed by the deceased in his lifetime, a writ of prohibition should be granted restraining them from prosecuting such action and also against the Peacemakers’ Court.</p> <p>Semble: The reasons for the recognition and enforcement of the old Indian custom by which a child was deemed to take its clan and tribal relation from the mother rather than the father, no longer existing, tribal relation in the case of the Indians on the Tonawanda reservation, as well as on the Cattaraugus and Allegany reservations, should be determined by the rule of the common law by which the lineage of the child follows that of the father.</p> <p>Accordingly, the only daughter and only legitimate child of a Tonawanda Indian, whose mother was a Cattaraugus Indian, but who was born on the Tonawanda reservation, has always lived there and is the wife of a Tonawanda Indian and a teacher in the schools on the reservation, must be deemed a member of the Tonawanda tribe or band.</p>

<p>Corporations — By-laws — Validity — As being in restraint of trade.</p> <p>Injunction — Who and what may be enjoined — Acts of private associations and corporations or officers thereof — In general — Actions by others than members.</p> <p>A resolution of the New York Stock Exchange prohibiting its members from buying or selling stocks for any active member of the Consolidated Exchange, a rival organization engaged in the same business, is not illegal as in restraint of trade.</p> <p>Semble, that, if the resolution were illegal, one who is not a member could not maintain an action to enjoin its enforcement.</p>

<p>Receivers — Compensation of receivers: Rate of commissions; Computation of commissions.</p> <p>An executor, guardian, committee, receiver or trustee under section 2 of chapter 378 of the Laws of 1883, as amended by chapter 349 of the Laws of 1906, is entitled (1) to such commissions, not exceeding two and one-half per centum upon the sums received and disbursed by him, as the court by which or the judge by whom he is appointed allows, but shall not receive for any one year a greater amount than $12,000, nor for any period less than a year more than at that rate; and where more than one receiver has been appointed the compensation shall be divided between the receivers; and (2) upon final accounting the court may make, an additional allowance to a receiver not exceeding two and one-half per centum upon the sums received and disbursed by him, if the court is satisfied that he has performed services that fairly entitle him to such additional allowance; and where more than one receiver has been appointed the compensation shall be divided between them.</p> <p>Such commissions are to be computed upon the value of the entire property that comes to the hands of a receiver or other officer and is distributed by him by order of the court, whether to the creditors of the insolvent estate or to the beneficiaries under the will or trust instrument or by a settlement or compromise between the parties, where the property consists of cash, securities, notes, bonds, mortgages, evidences of indebtedness or choses in action.</p> <p>Whether commissions should be computed in the same manner upon the value of real estate coming to the hands of a receiver, qucgre.</p>

<p>States—Claims: Persons who may prosecute claims — Nonresidents of State: Liability of State in general — Negligence in conducting business; Application of doctrine of ultra vires: Court of Claims — Jurisdiction — Claims for causing death.</p> <p>The State of New York having acquired, pursuant to law, for a State reservation, lands at Niagara Falls, upon which was an inclined railroad, had the power to continue the operation of such railroad so as to derive a revenue therefrom.</p> <p>The doctrine of ultra vires as applied to corporations, the creatures of the State, is not. applicable to the State itself when it does not exceed the constitutional limits of its powers.</p> <p>The doctrine of ultra vires cannot be invoked to shield a corporation from the consequences of its negligence in conducting a business not within the scope of its lawful activities.</p> <p>It was the intention of the Legislature, expressed in section 264 of the Code of Civil Procedure, that the Court of Claims should have jurisdiction in those cases where death is caused by a wrongful act, neglect or default upon the part of the State.</p> <p>The right given to prosecute a private claim against the State in the Court of Claims to recover damages for a wrongful act, neglect or default on the part of the State, by which the death of any person has been caused, is not confined to residents of this State but such a claim may be prosecuted by a resident of another State.</p> <p>When the State engages in the business of a common carrier, it must maintain and operate a suitably and properly equipped road. It must take care to prevent accidents, to see that its machinery and appliances are reasonably safe for the purposes for which they are used and to introduce and use such improvements in its machinery and apparatus as have been found naturally to contribute to safety, in the same manner as other common carriers of passengers for hire.</p>

<p>Determination of conflicting claims to real property: When action lies — Sufficiency of possession: What constitutes cloud on title — Deeds and mortgages.</p> <p>Taxes: Assessment — Formal requisites of assessment — In general — Non-resident lands — Where one of the owners is a resident: Sale of lands for taxes — Redemption — Notice to redeem — To occupant — What constitutes actual occupancy: Tax titles—Actions to try title or for possession — Tax sale or lease as cloud on title.</p> <p>Where persons, through a warranty deed, derive a title to woodlands, which is founded on a tax sale, and in good faith survey the lands, mark the lines by blazed trees on all sides, cut, skid and haul logs, cut a road, build a board shanty, which affords temporary shelter, and have the lands visited by a caretaker at intervals of from one to two weeks, such lands are not in the actual occupancy of the persons thus claiming title thereto within the meaning of section 134 of the Tax Law requiring notice of tax sales to be given.</p> <p>Such persons are, however, in possession of the lands in question and their possession is prima facie evidence of title and they may maintain an action to set aside a subsequent tax deed as a cloud upon their title, when the facts invalidating the deed do not appear upon its face but must be established by extrinsic evidence.</p> <p>Where land was assessed as non-resident property, notwithstanding the assessors knew at the time of making the assessment that one of tli-e owners was a resident of the tax district in which the land was situated, the assessment was absolutely void and in violation of the constitutional provision concerning deprivation of property without due process of law.</p>

<p>Justices of the peace — Procedure in justices’ courts — Process — Requisites and validity — Error in date when returnable.</p> <p>Where a summons in justice’s court issued on December 28, 1907, returnable on January 7, 1907, instead of January 7, 1908, was duly served upon the defendant, the defect is not jurisdictional; and where the proof is ample to sustain a judgment for plaintiff, rendered on defendant’s failure to appear upon January 7, 1908, it will be affirmed.</p>

<p>Penalties —Actions for penalties — Questions for jury.</p> <p>Taking case from jury and nonsuit — Weight and sufficiency of evidence — Credibility of witnesses — Witnesses of uncertain memory.</p> <p>Where, in an action to recover a penalty under the statute making possession by defendant of a milk bottle with plaintiffs trade-mark upon it presumptive evidence of defendant’s unlawful use thereof, it appears that plaintiff had two trade-marks for its bottles, and a witness for plaintiff would not positively swear which one of them was on the bottle taken from defendant, and the testimony of plaintiff’s secretary was only to the effect that he did not know of any permission being given to use the bottle, the direction of a verdict in plaintiff’s favor is error, as whether one of the trademarks was on the bottle and whether permission to use the bottle had been given were questions for the jury.</p>

<p>Proceeding upon the final judicial settlement of the account of executors.</p>

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

<p>Certiorari proceeding.</p>

<p>Contempt: What constitutes — Misconduct— Disposal of property hy surety on undertaking to defeat recovery thereon: Punishment — Amount of fine — Counsel fee.</p> <p>Where an undertaking is given as a condition of setting aside the levy of an execution pending a motion to vacate the judgment upon which the execution was issued, conditioned for the payment of the judgment and the expenses of a reference to take proof in aid of the motion, and the surety upon the undertaking disposes of his property with the deliberate intention of making his obligation nugatory and succeeds in doing so, his conduct is a direct interference with the action as well as with the ultimate proceedings in aid of the judgment, impedes the administration of justice, impairs and defeats the right of the plaintiff and comes within the provisions of the Code of Civil Procedure defining a civil contempt.</p> <p>In such a ease, the fine to be imposed should include legal expenses and counsel fees in the contempt proceedings; and a counsel fee of thirty dollars a day for a period of twenty-four days is not unreasonable.</p>

Summary proceeding to review the determination of the commissioner of elections of Onondaga county as to the validity and legality of certificates for the nomination of candidates for public office.

<p>Motion to intervene.</p>

<p>Villages — Exercise of governmental functions — Water supply — Powers and duties of water commissioners ■— Extension of mains.</p> <p>Where a village avails itself of the privilege of establishing a waterworks system under the provisions of the Village Law, it must, as long.as any property owner aslcs it, extend the mains to supply properties that are unsupplied, provided, however, that in villages of the fourth class the cost of all such extensions made in one year does not exceed five hundred dollars.</p> <p>Where, in such a case, the board of water commissioners refuses to extend the mains for the purpose of furnishing a supply of water to a resident, the court may compel the board to perform such duties by mandamus.</p> <p>It is not an answer to an application for a mandamus in such a case that the board has no funds available for the extension, as the board of trustees has the power and is obliged to raise money to pay the expenses of the village, including water supply, and including the proper and legitimate disbursements and expenses of the board of water commissioners.</p>

<p>Equity — Nature and grounds of jurisdiction — Restraining enforcement of criminal law.</p> <p>Injunction — Who and what may be enjoined —Arrest and -enforcement for violation of statute or ordinance — Sunday laws.</p> <p>A court of equity has no jurisdiction to enjoin a police officer from arresting a person upon a charge of doing certain acts which the person is about to do on the ground that such acts do not constitute a crime.</p> <p>The corporate proprietor of a moving picture show in the city of New York, to which a license has been issued by the mayor containing the words: “-On condition of receiving this license, the undersigned licensee hereby stipulates and agrees that he will not open or operate his moving picture show on Sundays,” cannot maintain an action against the police officers of the city to restrain them from arresting the plaintiff’s officers and employees, as they threaten to do if plaintiff opens its show on Sunday.</p>

<p>Costs — Payment and enforcement thereof — Staying further proceedings on actions till costs paid — What proceedings are stayed.</p> <p>Non-payment by the plaintiff of costs awarded against him by an interlocutory judgment sustaining a demurrer to the complaint, in a case where there are no issues of fact, does not operate to stay the plaintiff from moving to compel the defendant to enter ftnal judgment from which an appeal may be taken to the Court of Appeals.</p>

<p>Judgment — Lien — Judgment for divorce and alimony: Property or interest affected and extent of lien — Rights in surplus moneys.</p> <p>A judgment in favor of a wife against her husband for a divorce and alimony, payable thereafter in monthly installments, is a judgment for money so as to become a lien upon real property from the time of its docketing, as contemplated by the provisions of the Code of Civil Procedure.</p> <p>The lien of such a judgment is, therefore, prior to that of money judgments subsequently recovered and docketed; and it is entitled to priority of payment out of surplus moneys arising from the foreclosure of a mortgage on the real property of the judgment debtor.</p>

<p>Action to recover for goods sold and delivered.</p>

Plaintiff demurs to defendant’s answer that more than ten years have elapsed since plaintiff’s cause of action accrued, upon the ground that such answer is insufficient in law.

Action -by the American Seeding Machine Company, a foreign corporation, against The John Conklin’s Sons Company, a domestic corporation, and 0. M. Sharpe, impleaded, upon a promissory note and for goods sold and delivered. This action was tried in justice’s court, where a judgment was rendered against the defendants, from which judgment The John Conklin’s Sons Company appeal for a new trial in this court.

<p>Municipal corporations — Defective streets and bridges and places contiguous thereto — Actions to enforce liability" for defects — Questions for jury — Defects in bridges.</p> <p>While plaintiff, on January 16, 1909, was carefully driving a horse and cutter across a bridge, in a thinly settled part of the defendant city, which he had crossed- every day for several years and sometimes several times a day, on foot or with horse, the right fore leg of his horse went through a plank and was injured. Plaintiff knew prior to the time of the accident that at the place where it occurred the planks were getting worn hut it did not appear that he knew of any hole or pocket in the plank where the accident occurred, or that the bridge was unsafe. The contractor, who in 1005 had replanked the bridge for the city with three-inch hemlock planks, testified that such a bridge ought to last about four years. About a month prior to the accident defendant’s assistant street commissioner put in a new plank adjoining the one through which the horse’s foot went, and, in an action for damages brought in justice’s court, the justice confined the evidence as to the condition of the bridge to the condition of the new plank and the one through which the leg of the horse went; and it appeared that at the particular point where the accident occurred the plank was worn down to a pocket which went through leaving an opening eighteen inches long and six or seven inches wide.</p> <p>Held, that, under all the circumstances of the case, the questions of defendant’s negligence and of plaintiff’s contributory negligence were for the jury and their finding in favor of the plaintiff was conclusive.</p>

<p>Attorney and client — The vocation — Admission and nature and tenure of office — Revocation and forfeiture of license — Right to conduct his own cause after suspension — Does not extend to case in which attorney merely has lien.</p> <p>Where, after an appeal taken from a judgment for plaintiff in Justice’s Court and for a new trial, the attorney for plaintiff was suspended from practice, and the plaintiff neglected to appoint another attorney to represent him in the action after defendant’s attorney had notified him so to do, and notice of trial was personally served upon the plaintiff and his complaint dismissed upon his default; and it appears, on motion hy the suspended attorney to set aside the judgment and open the default, that whatever interest he had in said cause of action was simply an attorney’s lien thereon, a preliminary objection to the motion, upon the ground that lie had no authority or right to practice or to make said motion and that the court was without jurisdiction to open the default and set aside the judgment after the lapse of a year since the service of a copy thereof upon plaintiff, is well founded, and the motion will he denied, with costs.</p>

<p>Appeal from a judgment discontinuing the action upon the plea of title.</p>