Volume 65 — New York State Reporter

<p>Cruelty to animals—Jurisdiction.</p> <p>Administering poison is cruelty to animals, of which offense the court of special sessions has exclusive jurisdiction in the first instance.</p>

<p>1. Injunction—Reference.</p> <p>An order of reference cannot be granted, to ascertain the damages by reason of an injunction order, until it has been determined by a judgment or order that the party was not entitled thereto.</p> <p>S. Same.</p> <p>An order, granted on application after judgment in the action, vacating the injunction is a determination that plaintiff was not entitled thereto, and authorizes an order of reference to assess the damages.</p> <p>3. Same.</p> <p>An order vacating an injunction cannot be questioned on a reference to ascertain damages.</p> <p>4. Appeal—Order of reference.</p> <p>The plaintiff in the action may appeal from the order of reference to assess damages, though the proceeding is against the sureties.</p>

<p>1. Negligence—Motorman.</p> <p>It is the duty of a motorman to be on the lookout and to have his car under control, to avoid injury to vehicles.</p> <p>3. Same—Contributor?.</p> <p>The question whether the driver of a wagon, with which a street car collided, was guilty of contributory negligence, was held to be one for the jury.</p>

<p>Insurance—Cancellation.</p> <p>Under a provision of a policy providing for its cancellation by the company, the actual payment or a tender of the pro rata unearned premium is essential thereto.</p>

<p>1. Will—Construction.</p> <p>Where the_ testator intends to have incorporated in his will a power authorizing a sale of his property, the language, though inartistic and inapt, will be construed equitably and liberally in furtherance of the intention.</p> <p>2. Same—Power of Sale.</p> <p>The power of sale, if given by, but the donee is not named in, the will, is implied in the executor. 1</p>

<p>Supreme Court—Justices—Salary.</p> <p>Chap. 104 of 1893 does not provide for an increase in salary, within the prohibition of § 13, art. 6, of state constitution.</p>

<p>Appeal—Case—Settlement.</p> <p>Where the facts are disputed, the settlement of the case by the trial judge is conclusive.</p>

<p>•1. Jurisdiction—Dbcetent’s estate.</p> <p>Where a different administrator has been duly appointed in this and another state where decedent died, and the foreign administrator first com- , menees an action, by the service of process upon an agent of the company, to recover on an insurance policy which is found in that state at the death of the assured therein, a second action in the courts of this state upon the same policy by the administrator appointed here will not be permitted.</p> <p>2. Executors—Legal representatives.</p> <p>The words “legal representatives” mean ordinarily executors or administrators, and such meaning will be attributed to them in any instance, unless there are facts existing which show that the words were not used in their ordinary sense, but to denote some other and different idea.</p> <p>3. Same.</p> <p>Where the object of an insurance company is stated in its by-laws to be “to promote the well-being of all its members and to furnish substantial aid to their families and assigns” in the event of a member’s death, the widow of a deceased member is not entitled to maintain an action upon the policy in her own right irrespective of her character as administratrix.</p>

<p>Pleading—Admission.</p> <p>A party, availing himself of an admission of his adversary in a pleading, is at liberty to use it as far as it makes in his favor, and is not estoppeii from disproving the residue.</p>

<p>Damages—Elevated -railway.</p> <p>In an action against an elevated company for an injunction and damages, a claim that other land of the plaintiffs in the rear of the abutting premises, which has no appurtenant easement of light, air and access in and over the street in which the road is located, but abuts on the side streets, is benefited by the construction, maintenance and operation of the road and that such benefit should be set off against the fee damage; is untenable.</p>

<p>1. Vessels—Collision.</p> <p>In actions for injuries resulting from the collision of vessels navigating public waters, the omission of either or both to conform to legislative enactments is but one of the circumstances to be considered in ascertaining the proximate cause of the injury.</p> <p>3. Same.</p> <p>No vessel is justified, by a pertinacious adherence to a rule, in colliding with a ship which she might have avoided.</p>

<p>1. Master and servant—Fellow.</p> <p>Where the appliance is in charge of a fellow-workman of the decedent, and there is no proof of any imperfection therein, or of anjdhing inherently dangerous in the mode of doing the work, the negligence, if any, is that of & fellow servant, for whose, conduct the ma-ster is not liable.</p> <p>2. Same—Safe place.</p> <p>A safe place in which to work means a place in which the permanent, constructions have been made with reasonable safety.</p>

<p>1. Chattel mortgage—Priority.</p> <p>A chattel mortgage, though first filed, is subject to the lien of a prior mortgage, if it was taken for an antecedent debt.</p> <p>2. Same—Assignee.</p> <p>An assignee, in good faith and for value, of a filed mortgage gets no preference over a prior unfiled mortgage by reason of such -filing, when his assignor cannot claim it.</p>

<p>1. Landlord and tenant—Holding over.</p> <p>It is the duty of the tenant to quit and make full surrender of the premises to the landlord, at the expiration of his term ; if he does not do so, the landlord may treat him either as a trespasser or as tenant for another year.</p> <p>2. Same.</p> <p>The tenant, in such case, has no election in the matter; the landlord’s election binds him, whatever his intention may have been, and though the landlord knew what his intentions were before the time expired.</p> <p>3. Same—Excuse.</p> <p>It is no valid excuse for the holding over that the tenant was engaged in removing his goods and consumed no more time in such removal than was necessary for such purpose.</p>

<p>1. Judgment—Construction.</p> <p>The words in an interlocutory judgment, in an action against an elevated railway lor an injunction and damages, “that the past damages be ascertained in such manner as the court should direct,” assume the exercise of its lawful powers, and cannot be interpreted irrespective of the limitations imposed by law.</p> <p>2. Trial—Elevated railway.</p> <p>Where, in an action against an elevated railway for an injunction and damages, the answer admits that substantial damages have been sustained, and the court has directed that the question of past damages be reserved for determination after the easements should have been acquired, in such manner as the court should then direct, the appointment of a referee to complete the trial is unwarranted.</p>

The action is by a workman against his employer to recover damages for personal injuries. The defendant occupied the building Ro. 32 Washington street, this'city, for making repairs to steamships, etc. There was a blacksmith shop on the top floor of the building, which was of brick, six stories high; the floors and roof were of timber. An elevator was on the premises, and was run from the first floor to the top, a distance of about fifty-four feet.

Appeal by defendants from order entered March 29, 1894, amending the decision and judgment theretofore rendered by the same judge.

<p>Will-Power of sale.</p> <p>Where the testator gives his executrix, in her discretion, full power and authority to manage, sell or otherwise dispose of any or all of his real, estate, either at public or private sale, and to give good and sufficient deed, or deeds for the proper conveyance of the same,, she is given a general, power of sale.</p>

<p>Banks—Contract for clearance.</p> <p>The payment of the checks of an insolvent bank by another bank under an arrangement in pursuance of rule 25 of the New York Clearing House, is not in violation of section 48 of the Stock Corporation Law, though made with knowledge of the farmer's insolvency.</p>

<p>1. Parties—Action at law.</p> <p>In an action at law, where the plaintiff seeks nothing hut a money judgment, he cannot be compelled to bring in any other parties than those he may choose to summon.</p> <p>2. Bank—Deposit—Principal and aoent.</p> <p>When the debt created by a deposit belongs to the principal instead of the agent, who made it in his own name, the bank, upon notice of the facts, must recognize the actual, rather than the nominal, depositor.</p> <p>3. Same.</p> <p>In such case, it is immaterial whether the bank knew of the trust when it received the deposit.</p>

<p>Judgment—Amendment.</p> <p>A judgment against a person, served by a wrong name, if he does not appear in the action, is a nullity and cannot be amended.</p>

<p>Estoppel—Affidavit.</p> <p>In making and delivery of an affidavit, that a bond was executed and delivered to the obligee “ for a good, valuable and full consideration, and there does not exist any counterclaim, set-off or defense whatever, in equity to or against said bond,” and the purchase of the bond in reliance thereon, constitute an estoppel which prevents the obligors from maintaining the defense of usury, where the purchaser paid full value, without notice of any defense thereto.</p>

<p>Motion to amend remittitur.</p>