Volume 65 — New York Miscellaneous Reports

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

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

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

Appeal by the defendant from so much of an order of the City Court of the city of Hew York as directs the defendant to pay the plaintiff or his ’attorney $20 and to file a bond as a condition of opening a default, and from an order of the same court denying the defendant’s motion to reargue his motion to open his default or to resettle the first mentioned order.

Reargument of an appeal by the defendant from a judgment in favor of the plaintiff rendered in the Municipal Court of the city of New York, borough of Manhattan,- ninth district.

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

Appeal by the plaintiff from a judgment of the Special Term of the City Court of the city of ¡New York, sustaining a demurrer to the complaint.

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

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

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

Appeal by the defendants Jennie L.evine and Rosie Halbren from a judgment of the City Court of the city of Rew York, rendered in favor of the plaintiff.

<p>Former adjudication—-Adjudication operative as bar or as conclusive evidence — Rule that former judgment must have been on the merits — What is a judgment on the merits in general —• How .' determined in Municipal Court of the city of New York.</p> <p>Whether a judgment of the Municipal Court of the city of New York was rendered upon the merits can be determined only upon an inspection of the minutes of the testimony taken on the trial.</p> <p>Where, in an action in the Municipal Court of the city of New York upon an account stated, the defendant pleads a former suit in bar, the so-called “ judgment roll ” in the prior action, which contains no testimony, is insufficient to sustain a r-uling that the judgment in the first action was res adjuiMeaia.</p>

Appeal by Moses 1ST. Berlin from an order of the Municipal Court of the city of Hew York, first district, borough of Manhattan, denying his motion to vacate an order of a justice of said court directing him to appear and submit to an examination concerning his dealings with the defendant.

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

<p>Negotiable instruments — Indorsement — Indorsement of instrument containing blanks.</p> <p>Principal and agent — Rights and liabilities of principal as to third person — Authority of agent — Authority to fill obvious blanks in negotiable instruments.</p> <p>Where an undated note in which blanks were left for the name of the payee and time of payment, after indorsement and with the assent of the indorser, was delivered to plaintiff for value, with authority to fill in the blanks at any time she needed the money, she, under section 33 of the Negotiable Instruments Law, had the right to complete the note by filling in the blanks; and the indorser is liable for the amount of the note.</p> <p>The' note containing no provision as to interest, a judgment, entered on a verdict altered by direction of the court by adding interest from the date of the note, will be modified by deducting therefrom the amount allowed for interest previous to the maturity of the note.</p>

<p>Interest — Computation — Demand — Promissory note payable on demand.</p> <p>Negotiable instruments — Payment — Time of payment — Note payable on demand.</p> <p>A promissory note payable on demand is due forthwith, and •interest is payable thereon from its date as damages for the detention of the principal.</p>

<p>Partnership—Bights and liabilities as to third person — Power of partner to bind the firm — Assignment for benefit of creditors.</p> <p>An assignment made by one member of a firm of all the firm assets, in trust for all the creditors of the firm, is not valid without the consent of the other members of the firm; and the burden is on the person asserting its validity to prove such consent.</p>

<p>Pleading — Motions relating to pleadings — Motion to strike out pleading or defenses — Sham answer — Affirmative defenses.</p> <p>An affirmative defense, when duly verified, cannot be stricken out as sham, unless it appears to be false by the defendant’s own affidavits.</p>

<p>Principal and agent — Eights and liabilities of principal as to third person— Extent of actual authority of agent to bind principal (including implied authority) — Authority to modify contract.</p> <p>Authority to deliver a written order for an advertisement to the proprietor of a newspaper for acceptance does not imply authority on the part of the person delivering the order to change its terms.</p>

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

<p>Sales — Remedies of seller — Action for price — Variances.</p> <p>Foreign corporations — Actions and proceedings — Issues and proof — Authority to transact business in this State.</p> <p>In an action by a foreign corporation for the price of goods alleged to have been sold and delivered to the defendant in Wisconsin, proof of a sale in New York does not sustain the allegations of the complaint; nor does such proof establish a cause of action against the defendant, without proof of the plaintiff’s authority to transact business in this State.</p>

<p>Instructions — Time and manner of giving and sufficiency of instructions — Misleading instructions.</p> <p>Saving, questions for review — Objections and exceptions in general'— Necessity — Exceptions to instructions—Power of court in absence of exception. .</p> <p>In an action to recover for goods sold and delivered, instructions of the trial judge, given by mistake, appropriate to an-action for fraud and misrepresentation, constitute error for which a judgment for the plaintiff should be reversed, although no exception was taken.</p>

Appeal by the plaintiff from an order of the Oity Court of the city of New York, granting plaintiff’s motion to restore the case to the calendar upon terms.

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

<p>Motions by both parties for the direction of a verdict.</p>

<p>Trusts — Creation and declaration — Deposit in bank — Control of trustee.</p> <p>The mere opening of a trust account in a savings bank constitutes nothing more than a revocable or tentative trust revocable at any time by the depositor unless either the account book is delivered to the beneficiary or some other formal act done to indicate an attempt on .the part of the depositor to create an irrevocable trust.</p> <p>Where, in such case, the depositor withdraws either all or part of the funds to the credit of such an account, the trust will be deemed to have been revoked pro tanto.</p> <p>Where, in an action by an executor to recover as belonging to the estate of his decedent the amount of a savings bank account in the form “ Lizzie Owens in trust for Lizzie Owens,” the plaintiff establishes that the beneficiary is a fictitious person; and it appears that decedent, in a written sixty days’ notice of withdrawal of the money required by the bank, described herself in the form in which the account was opened, such act constitutes as complete a revocation of the trust as if the money had been paid over to her.</p> <p>The statutory provision as to a depositor’s giving sixty days’ written notice of withdrawal of a savings bank account is for the protection of the bank only and does not inure to the benefit of the real beneficiary, if there 'is one.</p> <p>Declarations of decedent tending to explain an attempt by her to withdraw the fund made prior to the giving of the sixty days’ notice of withdrawal of the money were not self serving as the trust was then merely tentative and were admissible.</p>

<p>Injunction: Actions for injunctions—'Pleading — Answer: Scope and extent of relief — In general.</p> <p>Injunctive relief is never granted as a matter of absolute right but rests entirely upon the conscience and discretion of a court of equity.</p> <p>In an action for an injunction to restrain a private nuisance a prayer for money damages for past injuries can be considered by the court simply as incidental to the main purpose of the action. As to past injuries the plaintiff has an adequate remedy at law, but the court, upon determining that the case is one of equitable cognizance, will dispose of it in its entirety not only ' as to possible future injury but also as to past damages.</p> <p>Where, in an action to restrain a private nuisance, the claim of the plaintiff, who was the owner and occupant of certain premises, is that the defendant maintains in the neighborhood a large plant where electrical power is generated and in the process of such generation burns great quantities of coal and emits through its chimneys and smoke stacks great quantities of smoke, soot or small cinders which are carried through the air and deposited on and in the plaintiff’s property to her very material damage, and the defendant, as “ a separate and partial defense,” alleges that it carries on its business for the purpose of supplying electrical power for the operation of various surface trolley and elevated railroads in the borough of Brooklyn; that it complies with all the municipal ordinances and uses the best appliances and materials and exercises great care and cannot, in fact, carry on its business in any other manner, such facts constitute “ new matter,” are germane to the controversy between the parties, and necessary to be considered by the court in granting relief to the plaintiff if she maintains her cause of action; and a demurrer to the separate and partial defense set up in the answer will be overruled.</p>

Motion by grade crossing commissioners for return of report to the appraisal commissioners to have alleged mistake relative to parcel Ho. 3 corrected.

<p>Suspension of power of alienation — Prevention of invalidity by other provisions of grant or subsequent events — Power of sale by executors or devisees as preventing suspension of alienation.</p> <p>Trusts: Purposes for which express trusts are valid — In general: Execution of trusts as powers — Trusts to be executed as powers.</p> <p>Where several owners of real property unite in a conveyance to one of their number, with the intention to vest in him as trustee title thereto and sole, discretionary and irrevocable authority to manage the same and its proceeds for them for the term of ten years, to sell at his discretion, to collect rents and profits and to improve the property; the profits from sales and rentals to be commingled and the net income to be divided semi-annually, and unsold lands at the termination of the trust to revert to the former owners, held:</p> <p>First: The trust to sell, not being made for the benefit of creditors or legatees or for the purpose of satisfying a charge upon the lands, cannot be upheld.</p> <p>Second: Although the trustee has power to sell at any time, yet, since he may invest the proceeds in improvements, the exercise of such power does not ipso facto terminate the trust as to parcels sold, and the trust, therefore, offends the statutes against the suspension of the power of alienation.</p> <p>Third: Trusts to sell for the benefit of the grantor being lawful at common law, the statutes now embodied in the Real Property Law operate to convert such trusts into powers in trust, and such is their effect in the present case; and the title to the real estate, therefore, remains in the grantors, who may resume at any time the collection of rents and profits or compel the distribution of the proceeds of any sale,, or otherwise manage the property, subject to the power of sale.</p>

<p>Bankruptcy proceedings.</p>

<p>Fidelity bond — Premiums — Liability for payment — Defenses. Municipal corporations — Contracts — Release of rights of municipality — Liability on bond.</p> <p>A trust company which has obtained from a surety company a bond conditioned that it will safely keep, act for and pay over moneys of a city deposited with it, upon the agreement of the trust company to pay annual premiums to the surety company therefor, cannot set up as a defense to an action to recover such premiums that after the execution of the bond the terms of the deposit were so modified, without the consent of the surety company, as to afford the latter a defense to an action on the bond, particularly where the validity of such modification is doubtful.</p> <p>The provision of the charter of the city of Buffalo, that no liability for the breach of any bond or undertaking required by the charter shall be released, has reference to a liability coming into existence during the life of the bond and does not preclude the substitution of new sureties against future defaults and the" discharge of the former sureties from future liability.</p>

<p>Municipal corporations — Contracts — Letting contract to lowest bidder — Employment of stenographer.</p> <p>A stenographer employed by a committee of the common council of the city of Niagara Falls, appointed to investigate the causa or causes of friction alleged to exist between the police department of the city and the police justice, in pursuance of the power of the common council to investigate the management of all city offices and departments, although the stenographer acts without any specific authorization by the common council and without competitive bids having been called for, but renders services to the committee in reporting its proceedings and transcribing copies of his minutes for its use, is entitled to be paid for such services: ■ and his claim therefor, duly verified, having been regularly audited, allowed and ordered paid by the resolution of the common council, he is entitled to recover' the amount thereof in an action against the city.</p>

<p>Municipal corporations — Powers and exercise of governmental functions — In general Duty as to water supply.</p> <p>Entire omission on the part of a municipal corporation of the duty to provide a pure and wholesome water supply, imposed upon it for the general convenience of the local public, gives rise to no right of action in a citizen to compel its performance.</p> <p>Where the municipality in proceeding to perform such duty supplies water which, though not absolutely pure, is not outside the limits of possible honest choice and selection, no such action can be maintained, first, because the installation and maintenance of a water supply is too complex to be supervised by the court; and, second, because a citizen having no grievance, except that he with the rest of the community has not enjoyed the affirmative convenience of a pure water supply, is not authorized to invoice the remedial action of the court.</p>

<p>Duress — What constitutes.</p> <p>Municipal corporations — Powers and exercise of governmental functions — Subjects of municipal regulation and validity of ordinances and by-laws — Dancing schools.</p> <p>Where the proprietor of a dancing school in a city was asked by a policeman to show his license and having none was told he must have a license to run a dancing school and thereupon procured one and paid for it, the money cannot be regarded as having been paid under duress or compulsion.</p> <p>The common council of a city, authorized to enact such ordinances as shall be deemed expedient for good government, the protection of its property, the preservation of peace and good order, the suppression of vice, the benefit of trade and commerce and' the preservation of health, may properly provide, for licensing public dancing schools and pass reasonable regulations for the management of the same.</p>

<p>Guaranty — Requisites and validity — Delivery.</p> <p>Principal and agent — Rights and liabilities of agent as to third person — Rights and liabilities where agency is undisclosed — In general.</p> <p>A broker who sells stock though acting for another is himself liable as principal where he does not disclose for whom he is acting.</p> <p>Where defendants, a firm of stockbrokers, received for sale from a customer a certificate of stock bearing an assignment in blank purporting to be executed by the person to whom the certificate was issued, but which was in fact a forgery, and thereupon defendants guaranteed the assignor’s signature and forwarded the certificate to brokers in another city for sale, but, no such sale having been made, the certificate was returned to the defendants, with another" power of attorney indorsed thereon executed by the brokers to whom it was sent, and the defendants, without canceling their guaranty, stamped another power of attorney upon the certificate, signed it and delivered the certificate with both powers of attorney thereon to the parson from whom they received it; and where, thereafter, the customer again brought the certificate to the defendants and ordered its sale and another firm of brokers whom defendants allowed a commission for making the sale having found a purchaser defendants sent them the certificate, bearing the guaranty made upon the occasion of the former transaction, and they delivered it to plaintiff who paid therefor and the proceeds were received by the defendants and, after the deduction of commissions, were paid over to defendants’ customer; and where the plaintiff had no knowledge or information as to the person for whom defendants were acting, but were informed simply that they were authorized to sell the stock, they are liable to him upon the guaranty of the forged signature.</p>

<p>Statutes — Interpretation — Particular kinds of statutes — Repealing acts.</p> <p>Where, in a repealing act, the sections repealed are indicated by-two numbers connected by a hyphen, the act is not necessarily to be construed as re;pealing all the sections that are intermediate the two sections whose numbers are stated.</p> <p>Chapter 458 of the Laws of 1896 which repealed “ sections 1-3 ” of chapter 309 of the Laws of 1883 did not repeal section 2 of the. latter act which conferred upon the surrogate of Steuben county the powers of the county judge at chambers.*</p>

<p>Application for judgment in action for specific performance of a contract for purchase and sale of real estate.</p>

A. ¡Newell, .a justice of the peace, on a verdict of a trial jury, in favor of Thomas McKiernan and against William Hall. The appellant asks a reversal of the justice’s court judgment on the ground that the justice admitted improper evidence against the objection of appellant and that the judgment is against the weight of evidence.

The complaint alleged a sale and delivery of merchandise to one Van Houten of the value of fifty-nine and twenty-two one hundredths dollars, and “ thereafter and for a valuable consideration the above named defendant assumed said indebtedness, and agreed and promised to pay to the plaintiff the said sum of fifty-nine and twenty-two one hundredths dollars.” The defendant denied that he had any knowledge or information sufficient to form a belief as to the sale and delivery of…

<p>States — Claims — Liability of State in general. Taxes — Relief from illegal taxation: Recovery of taxes paid in general; Voluntary payment; Refundment by State — Powers of comptroller.</p> <p>A claim for moneys paid for taxes imposed under section 315 of chapter 241 of the Laws of 1905, as amended by chapter 414 of the Laws of 1906, afterwards held by the Court of Appeals to be unconstitutional, cannot be sustained against the State, the State never having consented to waive its sovereignty and to be sued in such a case.</p> <p>It is the intention of the Tax Law that such a claim should be submitted to the comptroller; and, not being founded upon express contract, it does not come within the exception contained in section 264 of the Code of Civil Procedure.</p> <p>A tax or assessment voluntarily paid cannot be recovered back, though illegally levied; or even where the law under which it was laid was unconstitutional.</p>

Application by relators for peremptory writ of mandamus requiring defendants to supply water for public purposes in public park of city of Clean.

Motion to vacate attachment against a foreign corporation granted upon an affidavit of an officer of plaintiff, averring “ that the defendant, the Thomas McNally Company, is a foreign corporation created, by and under the laws of the State of Pennsylvania.”

<p>Contempt—What constitutes—Disobedience—Demanding performance. Execution against property — In general — Execution to enforce order. Undertakings—Necessity and sufficiency of undertaking and curing insufficiency — Justification — Effect of failure of sureties to " justify.</p> <p>Where money is directed to be paid into court or to an officer of the court’ no demand is necessary other than the service of the order directing such payment.</p> <p>An order directing a purchaser of mortgaged premises, at a sale under a judgment of foreclosure, to pay the balance of his bid to the referee who made the sale, is not within the provisions of sec- > tion 779 of the Code of Civil Procedure, authorizing an execution to issue in certain cases.</p> <p>Where, as a condition of granting a stay of proceedings, an undertaking _ is required to be given and one is given, but the sureties are excepted to and fail to justify, such failure is equivalent to a failure to give the required undertaking.</p>

<p>Discovery and inspection — Examination of party before trial'—Procedure— Vacation of order. -</p> <p>Where orders are made on motion of the plaintiffs, by defendant’s consent, in two actions against the same defendant upon the calendar of the court for trial, to take the testimony of the plaintiff in one of the actions for use on the trial in both actions at a future time, and it is agreed at the same time that the plaintiffs shall submit to a physical examination, which they do, the order for the examination of one of the plaintiffs, after he has been examined and cross-examined and after he has died, should not be vacated for defects in the papers as to which no objection is raised until after his death.</p>

<p>Discovery and inspection — Examination of party before trial — Procedure— Modification of order; Vacation of order.</p> <p>Libel and slander — Justification — Sufficiency.</p> <p>An allegation in an answer in a libel suit that it was charged and believed that plaintiff assaulted a union man is not justification of a charge that the plaintiff did, in fact, commit such assault.</p> <p>And, where the only reason for the examination of the plaintiff before trial is to prove defendant’s defense in such a case, the order for plaintiff’s examination cannot be sustained.</p> <p>And where a perfect justification of one only of several libels is pleaded, an order for plaintiff’s examination should be limited to the cause of action for that libel.</p>

<p>Divorce — Foreign divorces and allowances — Jurisdiction of foreign court — Last matrimonial residence in foreign State.</p> <p>Where, in an action for divorce brought in another State against a defendant resident in this State, the defendant is served by publication; and, where the matrimonial domicile, or last joint domicile of the parties, was in the State where the action was brought, the decree is valid and binding upon the parties.</p>

<p>Appeal from an order of the City Court of the city of Mew York, vacating and dismissing a second order for the examination of the judgment debtor, with costs to be paid by the attorney for the judgment creditor to the judgment debtor.</p>

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

Appeal by the defendants from a judgment of the Municipal Court of the city of Yew York, third district, borough of .Manhattan, for $266.66, entered in favor of the plaintiff after a trial without a jury.

Appeal by the plaintiff from a judgment of the City Court of the city of Mew York, rendered in favor of the defendants, after a trial before the court without a jury.

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

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

Appeal by the defendant from a judgment of the City Court of the city of New York, entered in favor of the plaintiff, after a trial by the court without a jury.

Appeal by the defendant from a judgment of the Municipal Court of the city of Hew York, fourth district, borough of Manhattan, overruling a demurrer to the plaintiff’s complaint.

Appeal by the defendants Goodman Kostiuk and Morris Kostiuk 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 to set aside the verdict.

<p>■New trial — Grounds — Misconduct of or affecting jury — Constraint ° of jury.</p> <p>Where .a jury returned to the court-room after having retired for deliberation without having come to an agreement, and the judge, in the course of remarks to them, says that often jurors will stick to the opinion they entertained when they go out regardless of what any one else in the jury may say, and others will refuse to discuss the testimony with their associates, and that, if there is anything of that kind in the case pending, the jurors are committing wilful contempt of court and liable to punishment for it, their verdict, subsequently rendered after having again retired, cannot be regarded as then'* free and independent judgment, acting without constraint and with sole regard to their obligation to render a true verdict according to the evidence, and should be set aside.</p>

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

<p>Receivers — Administration and management of the property — Authority and powers in general — Liability for negligence.</p> <p>Where, although a receiver of a street railway company has been appointed and is vested with the title to its property, the road is still operated by the corporation, it alone is liable for damages for personal injuries caused by the negligence of a car driver; and a judgment against the receiver therefor cannot be sustained.</p>

<p>Motion to confirm the award of arbitrators under section 2313 of the. Code of Civil Procedure.</p>

<p>Taxes — Equalization, correction and review of assessments — Correction and review — Certiorari — Review — Presumptions and burden of proof.</p> <p>Values -=- Evidence of value of lands and buildings.</p> <p>In a proceeding to review assessments for taxation it is to be presumed that the owner of property strives for all obtainable income therefrom, and his assessment should not be increased upon the theory that he does not so manage, or further improve his property, as to enhance its taxable value.</p> <p>In estimating the additional! value which is given to a lot by a building erected thereon, the fee value of the lot and building having been computed on the basis of the ratio of its rental value to its fee value, the value of the lot should be deducted from that of the lot and building together, and the remainder will give the additional value due to the building.</p>

<p>Hearing upon writ of certiorari to review the assessment of special franchises for taxation.</p>

<p>Intoxicating liquors — Local option: Validity of election — Irregularities not affecting result; Notice of election.</p> <p>A vote upon the local option questions should be sustained where there were no such irregularities as to render the result uncertain.</p> <p>Notice that the local option questions will be submitted at a special town meeting is a sufficient compliance with section 13 of the Liquor Tax Law which requires notice that such questions will be voted on at the town meeting.</p> <p>Where the ballots used in the voting machine bear a caption printed in large type, and the questions are correctly numbered, and each one states precisely the proposition to be voted on, the fact that they erroneously refer to section 'll of the Liquor Tax Law instead of section 8, the correct number, is not a sufficient irregularity to invalidate the vote.</p>

<p>Intoxicating liquors — Local option — Irregularity in ballot — Marks other than in conformity with statute.</p> <p>Upon an application to review the decision of the inspectors of election at a town meeting at which the local option questions are submitted, where there is a blur mark in a voting square of each of two ballots and, apparently, a mark of some kind either on or under the same, and it can be reasonably determined that there was an erasure or an attempt to change the vote of each ballot, the action of the inspectors in rejecting the ballots should be sustained.</p> <p>In order to cast a legal vote upon a constitutional amendment, or any other amendment, proposition or question, the elector must mark his ballot by the cross mark within the voting square at the left thereof with the same degree of care and accuracy as though he were voting for candidates.</p> <p>Where upon a ballot some portions of all the cross marks extend out of and beyond the voting squares and in one of said cross marks the lines simply converge to an acute angle at the lower line of the square, there is no cross mark within the square, as required by the statute.</p>

Hearing upon a demurrer to an alternative writ of mandamus to compel the board of supervisors of Westchester county to audit a claim of the relator for services rendered while superintendent of the poor in conveying poor, indigent and sick persons to State institutions.

Hearing upon an application for a mandamus to compel payment to relator for services claimed to have heen rendered as coroner’s physician.

<p>Damages — Measure for torts — Loss of or injury to property — Discharging water upon adjoining premises.</p> <p>One who claims damages from the State from the seepage of water through the bank of a canal into his cellar, where the injury is capable of reparation, is not entitled, in addition to the cost of making repairs and the loss of rentals, to recover also the diminution in the value of his property.</p>

<p>Canals: Acquiring land — Notice of appropriation: Compensation for appropriation of land — Right to compensation — Surplus waters of Oswego river not previously acquired by State.</p> <p>Navigable waters: What are navigable waters .— Ebb and flow of tide; Waters navigable in fact; Non-navigable waters: Ownership of lands under water and grants thereof — Public ownership and control.</p> <p>Waters and water courses — Appropriation and prescription — In general — Presumptions from user.</p> <p>Some streams and bodies of water in the State are absolutely owned by the State as public property, and the State has the absolute disposition thereof, both as to the land and as to the water itself, as is illustrated by the Mohawk river, as to which it has been held that the riparian owners acquired no rights in the stream at all but that its bed and its waters belong to the State and are subject to its absolute disposition.</p> <p>In other streams and bodies of water the State owns the bed of the stream and a public easement in its waters, as is illustrated by the Hudson river, where the tide ebbs and flows, and the title of riparian owners has been held to extend only to high water mark, in the absence of an express conveyance of the bed of the stream by its legal owner.</p> <p>A third class consists of streams and bodies of water where the upland owner has the title to the bed of the stream and the public have an easement in its waters, as illustrated by waters not tide waters, but which, in their natural condition, are navigable in fact for boats, logs and the like; which streams and waters, being far more numerous than the classes already mentioned, find many iliustrations.</p> <p>A fourth class comprehends streams and bodies of water in which the State has no interest whatever but which are the subject of absolute private ownership, as is illustrated in the smaller streams and bodies of water that are not navigable in fact and in which no questions arise between the riparian owners and the State but litigation is confined to the rights of the various riparian owners upon the stream among themselves.</p> <p>Where the Oswego river, opposite the lands of claimants for compensation for land and water taken for the barge canal, was not navigable in fact, and the State acquired the land and water necessary for the old Oswego canal under chapter 262 of the Laws of 1817, and no grant or award shows what rights it deemed necessary for the purpose, it must be determined 'by recourse to what was actually done. It is to be presumed under the circumstances of the case that the right of the State was limited to such water as was required for the canal then constructed; and, where an opening was left in the dam then built by the State through which the claimants’ predecessors, who at the time the State dam was built had a wing dam at the same place and were using the water therefrom, might draw water to supply their mill and flume, it is to be presumed that such use of the surplus water as flowed therefrom was a right of the claimants’ predecessors, granted at the time of the State’s appropriation; and, as to a second aperture which has existed for more than forty years through which the claimants also drew water, a permanent right to its maintenance should in like manner be presumed which would enable the claimants to insist upon compensation for such water as the aperture would admit to their power plant and which was not needed or acquired by the State.</p> <p>The State cannot, therefore, appropriate for the barge canal, a new artificial waterway, the surplus waters used by claimants without making compensation; and, the statute under which the appropriation is made providing for compensation, it is to be made without regard to the possible right of the State to take the water without making compensation therefor.</p> <p>The notices of appropriation when duly filed or served, as required by the statute providing for the construction of the State canal system, operate as a transfer to the State of the interests therein described and notices of the appropriation of all of claimants’ water rights are not affected by the fact that the plans of the projected improvement show that at times of high water there will be surplus waters not required for such improvement which the claimants might use without prejudice to the interests of the State.</p>

<p>Estoppel — Equitable estoppel and estoppel in pais — Facts creating estoppels — Claim or position in judicial proceedings or actions. Heading — Motions relating to pleadings: Motion to strike out pleading or defense — Sham answer — Affirmative defenses: Motion for judgment on the pleadings — Frivolous pleadings — Denials.</p> <p>Where, in an action against the Grand Trunk Railway of Canada for injury to potatoes by delay in transportation, the defendant was ordered to deliver to the plaintiff copies of books and papers showing when and where it received the potatoes, and pursuant thereto it served affidavits and papers showing that the potatoes were delivered to the “ Grand Trunk Railway ” at a certain date, the plaintiff has a right to rely upon such delivery having been made to the defendant and not to a railway system neither controlled nor operated by the defendant.</p> <p>A general denial in such a ease cannot be stricken out as frivolous when it may be material upon the issue whether the potatoes were injured by the delay.</p> <p>Defendant’s affirmative defense containing matters that appear to be true, though in conflict with its previous statements furnished by order of the court, may'not be stricken out as sham, though the defendant may be estopped from denying the truth of such statements.</p>

<p>Motion to cancel a lis pendens. The opinion states the ease.</p>

<p>Former adjudication — Adjudications operative as bar or as conclusive evidence — Rule that former adjudication must have been on the merits — Judgment dismissing complaint — For insufficiency of pleading.</p> <p>Judgment — Rendition — At particular stages of the action — Judgment on the pleadings.</p> <p>A dismissal of a complaint, not upon the merits, for insufficiency, is not a judgment on the pleadings within the meaning of section 547 of the Code of Civil Procedure, which imports a judgment upon the merits.</p> <p>Where the allegations of a complaint are denied by the answer, a motion under section 547 of the Code of Civil Procedure for judgment on the pleadings, upon the ground that the complaint is insufficient in substance, will be denied.</p>

<p>Municipal Courts — Jurisdiction — Municipal court — Action for forcible entry and detainer.</p> <p>The Municipal Court of the city of New York lias no jurisdiction of an action for forcible entry and detainer.</p> <p>Where, in an action brought in the City Court of the city of New York for forcible entry and detainer, plaintiff recovers judgment for fifty dollars, he is entitled to tax costs.</p>

<p>Motion to compel the acceptance of an undertaking on appeal. The opinion states the case.</p>

<p>Action against a bank for refusal to pay a cheek drawn upon it.</p>

<p>Action to recover on a municipal contract. The opinion states the case.</p>

<p>Action to recover balance due on the purchase price of an automobile. The opinion states the case.</p>

Proceeding to compel payment of bills for furnishing drugs, medicines and supplies to prisoners in a county jail. The opinion states the case..

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

<p>Demurrer to a defense setting up new matter in an action for false representations.</p>

<p>Motion for a new trial by the plaintiff after a verdict in favor of the defendants Sibley, Watson, Holden, Eastman and Strong, the jury disagreeing as to the defendants Fenn, Finncane, Satterlee and Page.</p>

<p>Joinder of causes of action — What causes of action may be joined — Causes of action for recovery of or injuries to property.</p> <p>Jurisdiction — Jurisdiction of particular courts — County courts — Actions for ejectment and damages as incident thereto.</p> <p>A cause of action for mesne profits may be joined with a cause of action in ejectment, under section 1531 of the Code of Civil Procedure, in a court having jurisdiction of the latter, or a separate action for mesne profits may be brought.</p> <p>Where the complaint in an action brought in the County Court contains the usual allegations in ejectment, includes a claim for damages under section 1351 of the Code of Civil Procedure, and demands judgment for possession of the real estate in question and for damages for withholding possession, the claim for damages is a mere incident to the action for ejectment, and a demurrer to the complaint, on the ground that the court had not jurisdiction of the action, will be sustained.</p>

<p>Street railways — Street railway companies, their franchises and right to use of streets — Franchise and right to use streets — Nature and extent of rights granted — Eights subject to improvement of highway.</p> <p>The right of an electric railroad company to use a highway and operate its road thereon is subject to the right of the public authorities to improve the highway as the public interest requires and subject to the liability of being required to make all changes necessary to conform its road to such improvement at its own expense, without recourse against those lawfully engaged in improving the highway for any damages.</p> <p>Where proceedings authorizing the improvement of said highway by the construction of a State road were regular and legal and all necessary acts and proceedings to authorize such construction were properly taken and so much of the roadbed as had been constructed was destroyed during such construction, but without any reckless, wanton or negligent act on the part of those improving the highway, the railroad company has no redress for the damage to its property caused by the construction of the State road.</p>

<p>Demurrer to complaint in an action for libel.</p>

<p>Mechanics’ liens — Foreclosure — Judgment — Rendition of personal judgment — On failure to establish lien.</p> <p>States — Actions — Against State — Action to foreclose lien against fund for public improvement — Judgment may not be rendered against the State.</p> <p>In an action to foreclose a mechanic's lien upon the funds of the State applicable to payment for the improvement of a public</p> <p>' highway, the court has no jurisdiction to adjudicate the disputed claim ot the principal contractor and render an affirmative judgment in his favor against the State, although it is conceded that there is an amount due him in excess of all liens; but the judgment in the action may provide that it shall not be a bar to any future action which the contractor may elect to bring, either upon his contract or for extra work.</p>

<p>Municipal corporations — Contracts: Duty to invite competitive bids or necessity for advertising for proposals: Authority of officer to make contract: Power of department of water supply.</p> <p>A municipal corporation may act only in the manner prescribed by the law creating it and the power of the courts in an action at law to recover for extra work done under a contract with the municipality is limited to determining whether the plaintiff’s claim is valid under the statutes regulating the manner in which the legal obligations of the municipality may be created.</p> <p>Within three months after the making of a contract with the city of New York for the erection of a pumping plant and infiltration galleries at a certain place for $327,800, the parties made a supplemental contract for the installation of manholes and pumping stations near three wells driven by other contractors at an estimated cost of $7,160. During the progress of the work the contractor, pursuant to oral orders of the chief engineer of the department of water, gas and electricity, performed certain “ extra work ” in connecting said driven wells with the pumping station erected by him, in testing the same and in constructing a coal box to be used in measuring coal, etc. All the work required by the main and the supplemental contracts was duly performed. During the progress of the work the engineer in charge included the items “extra work” in the monthly estimates showing the progress of the work, and partial payments were made based upon such estimates, but in the final estimates the items of “ extra work ” were stricken out. Under section 419 of the charter the city may be obligated to pay for contract work where the work and supplies involve an expenditure of more than $1,000 by contract founded upon competitive bidding; by order of the appropriate head of department for additional work for the purpose of completing any contract at an expense not exceeding five per centum of the amount of such contract; and by contract without competition where the amount is less than $1,000, and tiie necessity therefor is certified to by the appropriate head of department and expenditure has been duly authorized and appropriated. The extra work was not additional work done for the purpose of completing the original contract; it was not done pursuant to a contract founded upon competitive bidding, and the necessity therefor was not certified to by the head of the appropriate department. In an action against the city to recover for the extra work it was held that the mere oral order of the chief engineer was not equivalent to the formal and deliberative certification called for by the provision of said section 419 relating to expenditures of less than $1,000.</p>

<p>Action against the indorser of a promissory note. The opinion states the case.</p>

Demurrer to complaint upon the grounds that the court has no jurisdiction of the subject of the action, and that the complaint does not- state facts sufficient to constitute a cause of action. .

<p>Action to construe will and for instructions to trustee.</p>

<p>Municipal corporations — Interpretation and effect of ordinances — Interpretation of ordinance relating to use of streets — When not applicable to officers of fire department.</p> <p>Municipal regulations for the control of traffic in the streets of a city, prescribing the side of the street to be used by vehicles moving in a given direction, are not applicable to the officers and employees of a municipal fire department when engaged in the performance of duties requiring the exercise of haste for the public safety.</p>

Motion by defendant to compel restitution of a fine paid by him on conviction for a misdemeanor, which conviction has since been reversed, and a new trial ordered.

<p>Libel and slander - Criminal libel—Nature and elements of offense — Publication in book; Publication referring to nonresident; Necessity of publication having been seen and read.</p> <p>Sections 1340 and 1347 of the Penal Law relate only to the place where indictments must be found and do not limit section 1340 or the definition- of libel which the latter section contains.</p> <p>The publication of a libel is not limited to a paper but a libel may be published in a book.</p> <p>The publication of a libel against a nonresident is within the prohibition of the Penal Law.</p> <p>It is not necessary, in order to sustain a conviction for libel, that the libelous article should have been read by any person, but it is enough that the defendant should have knowingly displayed it or parted with it under circumstances that exposed it to be seen.</p>

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

Aepeal by the plaintiff from a judgment of the 'City Court of the city of Kew York, entered upon a verdict directed by the court, and from an order denying a new trial.

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

<p>Appeal by the plaintiff from a judgment of the Municipal Court of the city of Mew York, first district, borough of Manhattan, dismissing the complaint upon the merits. •</p>

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

<p>Appeal by the plaintiff from a judgment of the Municipal Court of the city of ISTew York, second district, borough of Manhattan, dismissing the complaint.</p>

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

Appeal by the tenant from a final order of the Municipal Court of the city of Hew York, sixth district, borough of Manhattan, awarding possession of the premises to the landlord.

<p>Appeal by the defendant from a judgment of the Municipal Court of the city of Mew York, first district, borough of Manhattan, in favor of the plaintiffs, rendered after a trial by the court, without a jury.</p>

Appeal by the plaintiff from a judgment of the City Court of the city of Hew York, dismissing the complaint, and from an order denying a motion for a new trial.

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

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

<p>Appeal by the plaintiff from a judgment of the City Court of the city of ¡New York dismissing the complaint upon the opening of counsel.</p>

<p>Appeal by the defendant from a judgment of the City Court of the city of Hew York in favor of the plaintiff, and from an order denying a motion for a new trial, in an action brought to recover damages for personal injuries.</p>

<p>Appeal by the defendant from an interlocutory judgment of the Municipal Court of the city of New York, borough of Manhattan, second district, overruling a demurrer to the complaint.</p>

<p>Appeal hy the plaintiff from a judgment of the City Court of the city of Hew York dismissing the complaint.</p>

<p>Appeal by the defendant from an order of the Special Term of the City Court of the city of Hew York, granting a motion for a bill of particulars.</p>

Appeal By the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of ISTew York, sixth district, Borough of Manhattan.

Appeals by the plaintiffs from two judgments dismissing the complaints, rendered in the Municipal Court of the city of Hew York, first district, borough of Manhattan.

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

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

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

Appeals by the defendant from five judgments of the Municipal Court of the city of ISTew York, borough of Manhattan, seventh district, rendered in favor of the plaintiffs, after a trial before the court without a jury.

<p>Discovery and inspection — Examination of party before trial — Procedure — Before whom.</p> <p>The City Court of the city of New York is without power to appoint a referee to take the deposition of a party before trial.</p>

<p>Dismissal — Grounds and defenses — Failure to proceed.</p> <p>"Where an action was tried in 1900 and the judgment recovered was reversed in 1902 and the cause was placed upon the general calendar a few months later and afterward marked “ reserved generally;” and where the defendant died in 1900 and in 1909 a motion was made to dismiss for want of prosecution, and it appears that the action was for fraud in transactions had personally with the deceased defendant and no excuse for plaintiff’s delay is shown, an order of dismissal is properly granted and will be affirmed upon appeal.</p>

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

Appeal by the plaintiff from a judgment of the Municipal Court of the city of Rew York, borough of Manhattan, ninth district, rendered in favor of the plaintiff, on the ground that the damages awarded are insufficient.

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

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

<p>Insurance — Risk and causes of loss — Employer’s liability insurance — Accidents in adjoining buildings.</p> <p>A policy of employer’s liability insurance covering a certain building will extend to an adjoining building upon its being leased by the assured and connected with the former building and used for offices in connection with the business of the assured; and the assured is liable to pay additional premiums under the policy due to such addition to the premises occupied by it.</p> <p>Gicgerich, J., dissents.</p>

• Appeal by the defendant from an order of the Special Term of the City Court of the city of Ebw York denying her motion for judgment on the pleadings dismissing the complaint on the ground that it does not state facts sufficient to constitute a cause of action.

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

<p>Appeal by the defendant from a judgment of the City Court of the city of Rew York, entered upon a verdict in ■favor of the plaintiff, rendered by direction of the court.</p>

Cross appeals from a final order of the Mnnicipal Court of the city of Mew York, borough of Manhattan, ninth district, in a summary proceeding, which order dismissed the proceeding without prejudice to the bringing of a new proceeding.

Appeal by the defendant from a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, third district, entered upon the verdict of a jury in favor of the plaintiff.

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

<p>'Release — Release of persons jointly liable — Release of joint tort feasors.</p> <p>When the conductor of a street car is injured by á collision with a delivery wagon and brings an action against the owner of the wagon .to recover damages, and it appears upon the trial that the plaintiff has executed a general release to tL¿ street railway company, such release operates to release the defendant, in case negligence on the part of the motorman contributed to the injury.</p> <p>And where there is evidence tending to show negligence on the part of the motorman and the court denies defendant’s motion to dismiss the complaint on the ground that it is immaterial whether the motorman was negligent, it is error for which the judgment for plaintiff entered upon a verdict in his favor should be reversed.</p>

<p>The defendant herein appeals from a judgment of the City Court of the city of New York and brings up for review, by the notice of appeal, an order made at a Special Term of that court directing that plaintiff have judgment upon the pleadings.</p>

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

These are appeals from two judgments, one for the sum of sixty-one dollars and costs in favor of the plaintiff Kravzoff, and one for the sum of twenty-four dollars and costs in favor of the plaintiff Lurie, rendered in the Municipal Court of the city of Hew York, borough of Manhattan, second district, after a trial before the court without a jury.

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

Appeal by the occupant, Maria S. Hutchinson, from a final order of the Municipal Court of the city of Hew York, borough of the Bronx, first district, in favor of the petitioner.

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

<p>Insurance: Construction and operation of contract — In general—Other contracts: Avoidance of policy — Policy of insurance on property — Avoidance in consequence of provisions of other policies.</p> <p>A stipulation in a policy of fire insurance that, “ If at the time of loss, there shall be any other insurance outstanding in favor of the assured on the same or any part of the same risk, whether valid or not, subject to the conditions or provisions of any sort limiting the liability thereon, this company shall be in all cases entitled to the benefit of such provisions as if fully set forth herein ” is an essential part of the contract and is intended to assure the company issuing the policy as favorable and profitable a bargain as.other insurance companies should receive in expectation that the payment of a preferential rate to another company would avoid the policy, if the policy of any other insurer was warranted at not less gross rate of premium; and such stipulation is a condition which, if unfulfilled, defeats the policy.</p>

<p>Action to vacate a release of part of mortgag’ed premises. Action to release a mortgage on real property in which the answer set up a release of part of the premises upon certain conditions.</p>

<p>Corporations — Rights of stockholders and actions hy them — In general—' Right to sue on behalf of corporation — Necessity of first requesting corporation to sue.</p> <p>Where a corporation is exclusively under the control of its directors and officers whose acts and management are questioned, and a demand by a stockholder that the corporation bring an action against the officers would be idle and fruitless, equity permits the stockholder to bring the action in his own name.</p> <p>While the courts will not interfere with the internal affairs of a corporation, the equity powers of the court may be invoked to restrain the directors or officers from abusing their powers.</p> <p>Where it can fairly.be gathered from the allegations of a complaint in a stockholder’s action that the officers and directors of the corporation have made use of relations of trust and confidence in order to secure or promote some selfish interest, a court of equity will require the defendant stockholders to answer in regard to the facts.</p> <p>Where plaintiff, who was the owner of forty per cent, of the stock of a corporation capitalized at $5,000, entered into a contract with one of the defendants who was the treasurer of the corporation and whose brother was its president to assign to it plain-) tiff’s right to produce a certain play, one other director was a brother-in-law oí the treasurer and the other director his counsel, upon a complaint that the profits from the production of the play, which were large, had been expended almost all in salaries, office rent and other expenses, thus depriving the plaintiff of a just return upon his- investment, the plaintiff is entitled to maintain an action to compel the treasurer and the other officers to render an account of their stewardship. i</p>

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

<p>Taxpayeb’s action. The opinion states the case.</p>

<p>Municipal corporations — Remedies of taxpayers and corporators — Restraining entering into or executing contract in violation of law.</p> <p>Villages — Power to make contracts — Power to incur debts or expend money.</p> <p>Section 128 of the General Village Law (Consolidated Laws, eh. 64), which provides that “No contract shall be made involving an expenditure by the village, unless the money therefor is on hand, or a proposition has been adopted authorizing the board of trustees to raise such money ” and which by section 380 of the same statute is made applicable to a village incorporated under and subject to special law, is not inconsistent with any provision of the special charter of the village of Port Chester and is applicable thereto.</p> <p>Where, upon a motion in a taxpayer’s action to continue a temporary injunction restraining the officers of the village of Port Chester from paying money claimed to be due for services rendered as a certified public accountant under a written contract with the village, it is undisputed that no such expenditure was ever authorized by a vote of the people, and the affidavits are in substantial conflict as to whether the village at the time said contract was made had on hand in the general or contingent fund enough to meet the contemplated expenditure, the injunction will be continued until the fact is determined upon the trial of the action.</p>

Actior to restrain a proposed, sale of tax liens of the city of Yew York upon the special franchises of certain street railways on account of taxes assessed upon said special franchises.

<p>Motion for an order amending the judgment entered herein.</p>

<p>Certiorari to review assessment upon the special franchises of relator for the year 1907. Application for order upon rehearing, pursuant to remittitur from the Court of Appeals, filed in the office of the clerk of this court, October 23, 1909.</p>

<p>Eminent domain — Condemnation proceedings — Decree or order — Amendment.</p> <p>'Where commissioners have reported that a certain sum should be paid to two persons for lands belonging to them taken for a street in the city of New York, the report should not be amended by striking out the name of one of such persons on the ground that they were copartners and the lands were copartnership prop■erty, tnough it appears that, after the death of the deceased partner, the surviving partner accounted to his administratrix upon the theory and agreement that the lands in question were partnership property, but it does not appear that the heirs at law of the deceased partner were parties to the accounting.</p>

<p>Easements — Location, maintenance and extent of right — Location: Extent of right acquired by grant — Construction of grant.</p> <p>A grant, “ subject to a road or right of way * * * being a strip of land sixty-two and one-half links wide bounding in the easterly line ” of the premises conveyed, may be construed as designating a strip over which the right of way may be enjoyed and not as specifying the width of the right of way.</p> <p>And where, after the conveyance reserving the right of way, a public highway was opened which included twenty-five feet of the strip sixty-two and one-half links in width, and, thereafter, the owner of the dominant tenement used and enjoyed the highway and the remainder of the strip was built upon by the owner of the servient tenement, after the expiration of more than fifty years it will be presumed that the parties practically located the right of way belonging to the dominant tenement upon the twenty-five feet incorporated in the highway, and that the rights of the owner of the dominant tenement in the additional sixteen feet have been extinguished.</p> <p>The fact that, in the successive conveyances of the servient tenement, the language of the original grant in which the right of way was reserved has been employed, describing a strip of land sixty-two and one-lialf links in width, will not be taken as importing a different intention of the parties than that which is evidenced by their acts.</p>

<p>Election of officers — Liability for misfeasance or nonfeasance in regard to election — Corrupt Practices Act: Construction — Statement — Sufficiency: Proceedings to compel statement — Petition — Sufficiency.</p> <p>Article 20 of the Election Law is intended to compel publicity in regard to campaign funds and, in case of improper expenditure, to render easy the prosecution of the offender; and to that end should receive a fair and liberal construction.</p> <p>The proceeding for which the article provides must be based upon a petition that states facts showing failure to comply with the provisions of the law and the names of the persons or committees charged with such failure.</p> <p>The provision of said article requiring the treasurer of every political committee to file a statement is satisfied by a statement of every disbursement made directly from the funds of the committee by such treasurer, with the name of the person or committee to whom it was made, the date thereof and the purpose of the expenditure or disbursement; and the treasurer is not required to state the manner in which the money was actually applied by those to whom he paid it for a specific purpose.</p>

<p>Criminal procedure — Summary trials or other than on indictment as at common law — Trial — Commitment — Specification of offense.</p> <p>A commitment by a police magistrate of the city of New York which states that the defendant was charged with “ pushing and jostling passing pedestrians for the purpose of plying his vocation of pickpocket ” is insufficient to state an offense under section 1458 of the Consolidation Act (chapter 410, Laws 1882), creating the offense called “ disorderly conduct that tends to a breach of the peace.”</p>

<p>Corporations — Power of corporation to make contracts and effect of ultra vires contracts — Incidental powers in general.</p> <p>Health — Health regulations and offenses — Public water supply — Rules — Reasonableness.</p> <p>Cutting, removing and storing ice from its reservoir are properly incident to the main purposes of a company incorporated to furnish pure and wholesome water to a municipality and are within the corporate powers.</p> <p>A rule of the State Commissioner of Health that the reservoir of a water supply company shall not be used to supply ice for public or private purposes and that teams, cattle or men shall not enter upon the pond in winter for the purpose of cutting or removing and storing ice, is unnecessary and oppressive and seeks to deprive one, to whom the company has given the right, of Ms property without compensation, and is therefore void.</p>