Volume 66 — New York Miscellaneous Reports

<p>Constitutional law — Deprivation of life, liberty or property without due process of law — Authorizing confiscation and destruction of property.</p> <p>The seizure and confiscation of liquors, pursuant to section 33 of the Liquor Tax Law, constitute a taking by due process of law; and the provisions of said section are a legitimate exercise by the Legislature of the police power inherent in a sovereign State.</p>

Tiie action is quo warranto,' brought by the Attorney-General, pursuant to the provisions of the Code of Civil Procedure, to test the title to the office of city chamberlain of the city of Cortland. ■ The defendant • demurs to the complaint upon the ground that it does not state facts sufficient to constitute a 'cause of action. The facts, are, of course, undisputed and sufficiently appear in the opinion.

<p>Executors and administrators — Rights and liabilities of sureties and actions on bonds — Action by successor of removed representative — Conditions precedent.</p> <p>Surrogates’ Courts — Procedure and review — Orders • and decrees — Operative as bar or as conclusive evidence — Removal of representatives — For failure to account — Presumption of misappropriation of funds.</p> <p>The failure of an administrator to account, when required so to do by the Surrogate’s Court having jurisdiction, raises a presumption that he has misappropriated the assets that have corns into his hands.</p> <p>Where letters of administration have been revoked for the failure of the administrator to account when required, a judicial determination of his liability by a decree of the Surrogate’s Court is not a condition, precedent to an action by his successor upon his official bond.</p>

<p>Carriers — Carriage of goods: Connecting carriers — Liability for loss .or injury in general: Actions against carriers — Pleading — Complaint — Construction.</p> <p>Constitutional law — Provision relating to regulation of commerce — Railroads and other carriers — Construction of Interstate Commerce Act — To what carriers applicable.</p> <p>In an action against a carrier for damage to goods which happened upon the line of a connecting carrier, a complaint which alleges that the defendant undertook to transport to and deliver the goods at their destination in another State, beyond its lines, but to which complaint is annexed as part thereof the bill of lading which exempts the initial carrier from loss or damage beyond its line and only contracts to deliver to the connecting line, fails to state a cause of action, except as it may be saved by the act of Congress passed June 29, 1906, imposing upon the initial carrier liability for damage by connecting carriers, notwithstanding any contract, receipt, rule or regulation to the contrary.</p> <p>The act of Congress referred to is applicable to every carrier that receives property for transportation to a point in another State, though its own line may lie wholly within the State of the place of shipment.</p>

Motion by defendant on the minutes to set aside the verdict rendered in favor of plaintiff by direction of the court on the exceptions taken at the trial.

<p>Motion by the relator for peremptory writ of mandamus, requiring the defendants to issue to the relator a license to sell milk within the city of Rochester for the year 1909.</p>

<p>Acknowledgment — Certificate — Presumptions.</p> <p>The presumption of the due execution of a deed arising from the certificate of its acknowledgment before a proper officer can only be overcome by clear and convincing proof.</p> <p>It is not overcome by the testimony of the officer who took the acknowledgment that he cannot recollect the grantor and his subsequent statement that she was another person and by additional proof that the grantor had been adjudged insane and was confined in an asylum in another State seventeen months prior to the execution of the deed.</p>

<p>Demubbeb to complaint.</p>

Demurrer by each of the defendants to the complaint, on the ground that it does not state facts sufficient to constitute a cause of action.

<p>Action for an injunction. Case submitted on an agreed statement of facts.</p>

<p>Joint adventures — Mutual rights, duties and liabilities — Settlement between parties — Right to share in profits.</p> <p>Partnership — Rights of partners inter se — Right to share in profits.</p> <p>Where three persons agreed to embark in a joint adventure, each to contribute a certain percentage of the capital required and to share in the profits in the same ratio; and where, in pursuance of their agreement, they obtained from the government, in the firm name which they had adopted, a contract for the distribution of seeds and gave the required bond for its performance; but where one of the parties failed to contribute his share of the capital and the others notified him that unless he did so they would consider the partnership dissolved, and thereafter served successive notices upon him to the same purport, but, although responding to all the notices by promises, he never in fact contributed any of.the capital to the enterprise as he had agreed to do, on the completion of the adventure he cannot maintain an action against his associates to compel them to account to him for a share of the profits of the enterprise nor for moneys they received from an insurance upon property which they had purchased with their own funds and insured in their own names.</p>

Action to recover possession of certain lands in Tates comity, of which defendant is in possession under contract to purchase the same from plaintiff, and to recover damages for withholding such possession.

<p>Master and servant — Liability for injuries to third persons — Scope of employment — Captain of vessel.</p> <p>The captain of a lighter, operated, managed and controlled by the defendant, represents the defendant in the control thereof, but it is not within the scope of his employment to invite strangers aboard for their own entertainment; and where, in such a case, the captain invited little girls to come aboard, who accepted his invitation and began to play about, when one of them was thrown off a. ladder by the lurching of the boat occasioned by the waves and sustained injuries, the defendant is not liable therefor.</p>

<p>Action for partition.</p>

<p>Real property —Registration of title — Procedure — Evidence—Admissibility— Searches and abstracts.</p> <p>Trusts — Termination and abrogation of trust — Reconveyance of estate.</p> <p>In an action to register title under article 12 of the Real Property Law, the certificates, searches and abstracts of title of the official examiner are sufficient, if satisfactory, to justify the court in ordering the issuance of the summons, but are not such proof of the chain of title as is required to authorize a judgment of registration.</p> <p>Where the owner of real property conveys the same in trust to apply the income thereof to the use of himself and wife during life and at their death to convey all the property remaining in the trustee’s hands to the grantor’s heirs, or to sell the same and apply the proceeds to the benefit of the grantor and his wife, at the trustee’s discretion, the trust can be terminated with the concurrence of the trustee and the grantor and his wife; and, by a conveyance from the trustee to the grantor and his wife of the trust estate, said trust is terminated and the absolute title is vested in the grantees in the last mentioned conveyance.</p>

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

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

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

<p>Usury — Elements and indicia — Exchange, discounts, commissions, bonuses, etc.— Payment of bonus or commission to agents and brokers — To officer of bank making loan.</p> <p>Where one desiring to procure a loan applies to an attorney at law, who is also the vice-president of a bank, to procure a loan for him and offers to pay him a certain sum for procuring the same, and he, after trying to obtain the loan elsewhere without success, obtains the same from the bank of which he is an officer and the borrower pays him therefor the sum agreed upon, but ' it does not appear that in obtaining such loan he was acting as an officer of the bank or that the bank had knowledge of the agreement of the borrower to pay him for procuring the loan or received any part of such payment, the defense of usury against the .bank is not established.</p>

Action to compel executors aud trustees to convey a one-sixth interest in certain real property in accordance with the terms of the will.

<p>Common schools: Officers — Corporate character and attributes of boards — Boards of education: Actions — Parties—Actions against boards of education.</p> <p>Corporations —Actions against corporations — Parties in action against.</p> <p>Process — Issuance and formal requisites — Designation of parties.</p> <p>By section 220 of the Education Law (Consolidated Laws, chap. 16), the board of education of each free school district or city is a body corporate and any liability created by the wrongful discharge of a school teacher employed by it is a liability of the corporation and not that of the members of said board as individuals.</p> <p>Where the verified complaint in an action brought in justice’s court alleges a cause of action against the board of education of a union free school district for damages for breach of a contract of employment with plaintiff as teacher and in the title three individuals are named as composing said board but the original summons was directed to and duly served upon but two of them as individuals, a judgment rendered against the three members of the board individually will be reversed as erroneously entered and plaintiff remitted to a new suit, the appellate court having no power to substitute the board of education as defendant in the place of the individuals composing it, even conceding that the plaintiff was entitled to judgment for the amount claimed.</p> <p>Plaintiff was not entitled to maintain the action against the said board individually, designating them by their official titles, under sections 1926, 1927, 1929, 19-31 of the Code of Civil Procedure, as said sections are limited in their application to school trustees only and do not provide for suits against members of a board of education.</p>

<p>Supplementary proceedings — Warrant of arrest — Issuance and formal requisites — Recitations; Specification of purpose.</p> <p>A warrant for the arrest of a judgment debtor, in proceedings for his examination before or after the return of an execution, under section 2437 of the Code of Civil Procedure, must recite the facts that bring the proceeding within section 2458, and for its failure to do so should be vacated.</p> <p>The warrant. should also specify the purposes for which the judgment debtor is required to be brought before the court, and for its failure to specify the purpose it should be vacated.</p>

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

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

<p>Brokers — Compensation: • Fraud, illegality and waiver oí right — Fraud or misrepresentations and negligence — Secret employment or compensation by opposite party — Upon exchange of properties: Actions -r- Evidence — Admissibility.</p> <p>It is not a defense to an action by a broker for commissions for effecting an exchange of real estate that he received commissions from both sides.</p> <p>In an action by a broker to recover commissions from one of the parties to such a transaction, it is error to admit evidence on the part of the defendant that he did not know the other party was to pay commissions to the broker.</p>

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

<p>Municipal Courts — Jurisdiction — Municipal Court — Vendor’s action to recover goods subject to oral contract for conditional sale.</p> <p>The Municipal Court of the City of New York has jurisdiction of an action by the vendor to recover goods which were the subject of an oral contract for conditional sale for the default of the vendee, the exception contained in section 139 of the Municipal ■Court Act being limited to written contracts.</p>

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

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

<p>Discovery and inspection — Inspection of books, papers and premises: Right to remedy — When allowed in general — To devise a technical defense: Procedure — Extent of discovery — Right to copy.</p> <p>The defendants’ right to a copy of a document under sections 803 and 804 of the Code of Civil Procedure is not to be defeated by the affidavit of plaintiff’s officer that the plaintiff believes it is only a scheme to devise technical defenses to avoid a fair and honest liability.</p>

Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, first district, borough of Manhattan, dismissing the complaint without prejudice to a new action.

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

<p>Fraternal and mutual benefit associations — Forfeiture, suspension or resignation: Forfeiture or non-payment of dues and assessments: Waiver of forfeiture — Effect of payment of dues to one not authorized to reinstate.</p> <p>Where the constitution of a mutual benefit association provides that a member who does not pay his regular monthly dues or fees for two months and at the regular meeting of the third month fails to put himself into good standing shall be considered in arrears, and that if the arrearage continues three months the member will be declared suspended from the society, and where a member remains in arrears for eight months it operates ipso facto and without any further action on the part of the association as a suspension from membership.</p> <p>In such a ease, the payment by the beneficiary of a sum of money a few days before the death of a member to the financial secretary and its acceptance by the financial secretary who gave a receipt therefor but afterward called on the beneficiary and returned the money, do not establish a waiver of the member’s default on the' part of the association.</p>

<p>Guaranty — Discharge of guarantor — Extension of time for payment or other performance — Extension as to part.</p> <p>Where goods are sold from time to time under a continuing guaranty for the payment of the price, an extension of the term of credit as to some of the goods by talcing notes therefor does not discharge the guarantor from liability for the remainder as to which there was no extension.</p>

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

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

<p>Bill of particulars — When authorized — Non-performance of contract.</p> <p>In an action to recover damages for wrongful discharge, where the answer alleges that the discharge was for and on account of the failure of the plaintiff to perform her duties as saleswoman, the plaintiff is entitled to a bill of particulars.</p>

<p>Trade unions — Contracts between members — Interpretation and construction.</p> <p>Where two members of a protective union enter into a contract of employment, the contract should be read in the light of the union’s by-laws in so far as they attempt to regulate the' terms of employment of its members, and the contract may be terminated by the employer when by the employee’s default he ceases to be a member in good standing and the by-laws contain' a provision that it shall be the duty of .every member to refuse to perform in any orchestra or band in which any person or persons are engaged who are not members in good standing.</p>

<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 The Bronx.</p>

<p>Appeal by the defendant from a judgment of the Municipal Court of the city of New York, second district, borough of Manhattan, for $436.50, entered in favor of the plaintiff upon the verdict of a jury, and also from an order denying a motion to set aside the verdict and for a new trial..</p>

Appeal by the defendant Boberts from a judgment of the City Court of the city of New York, entered in favor of the plaintiff upon the verdict of a jury.

<p>Appeal from an order of the 'City Court of the city of Raw York denying plaintiff’s motion to direct the defendant to separately state and number the defenses set up in his answer.</p>

Appeals by the .plaintiff from two orders of the Municipal Court of the city of New York, seventh district, borough of Manhattan, sustaining defendant’s demurrers to the amended complaints herein.

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

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

<p>Principal and agent — Rights and liabilities of principal as to third person — Extent of actual authority of agent to bind principal (including implied authority)—Act of one of several agents.</p> <p>A power of attorney to three persons is presumed to have been intended to confer authority upon them jointly, and a contract by one of them is not binding upon the principal, in the absence of proof of a contrary intention.</p>

<p>Security for costs — Persons who may be required to give — Persons who are non-residents.</p> <p>Residence in the borough of Brooklyn is residence without the city or county where the City Court of the city of New York is located; and a plaintiff residing there may be required to give security for costs in an action in said court.</p>

<p>Appeal from an order of the City Court of the city of New York directing the plaintiff to furnish security for costs.</p>

<p>Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, fifth district, borough of Manhattan, dismissing the complaint without prejudice to a new action.</p>

Application on order to show cause for a peremptory writ of mandamus requiring the defendants to approve the proposed transfer of John L. Webb from the position of stenographer in the County Court, Queens county, to the position of stenographer in the Supreme Court, second judicial district, outside of Kings county:

<p>Eminent domain — Condemnation proceedings — Sufficiency of notice; Consent of claimants.</p> <p>Under the statute providing for the acquisition of lands for the. water supply of the city of New York, which requires notice of the application for the appointment of commissioners of appraisal to be published continuously for six weeks previous to the presentation of the petition therefor, commissioners cannot be appointed upon less notice, although certain claimants for damages appear at the time specified in such notice and ask that the court appoint commissioners in accordance with the petition.</p>

<p>Eminent domain — Condemnation proceedings — Admissibility of evidence— Proof of lot values with no market for lots.</p> <p>In a proceeding for the appraisal of damages to be paid to the owners of lands taken for the water supply of the city of New York, it was error to permit witnesses to fix a value on each separate twenty-five foot lot into which might he divided a tract of seven or eight acres that had never been in fact subdivided, no part of which had been sold, through which no street had been laid out, which was all covered with trees, brush and bowlders, in which no demand or market for lots was shown at the time it was taken by the city, but in which at that time the evidence tended to show that no such demand existed.</p>

<p>Proceei>jxgs for the drainage of certain low lands known as Spring Valley swamp.</p>

<p>Application to confirm finding of a jury and appointment of a committee of the person and property of an incompetent person.</p>

<p>Intoxicating liquors — Search for, seizure and forfeiture of liquors — Procedure — Pleading — Demurrer.</p> <p>A demurrer interposed in a proceeding brought under the excise statute for a search warrant will be dismissed on motion, as the statute makes no provision therefor.</p>

<p>Intoxicating liquors — Revocation or forfeiture of license — Proceedings to annul certificate — Costs.</p> <p>A proceeding to have a liquor tax. certificate revoked is analogous in its purpose and scope to an action; and. where the holder of the liquor tax certificate traverses the allegations of the motion papers charging him with violating the Liquor Tax Law, upon which an order to show cause, duly served upon the State Commissioner of Excise and the county treasurer, was granted, and the petitioner is successful u.pon the trial of the issue raised by the answer, he is entitled under section 3240 of the Code of Civil Procedure to tax in his bill of costs twenty-live dollars for all proceedings before notice of trial; four dollars for two additional defendants; for all proceedings after notice and before trial fifteen dollars, and a trial fee of thirty dollars.</p>

<p>Motions for writs of mandamus to compel the police commissioner to reinstate members of the force who have been retired against their will and placed on the pension roll on the certificate of police surgeons to their physical disability.</p>

<p>Supplementary proceedings — Judgments or orders on which proceedings may he based—■ Judgment against attorneys in fact.</p> <p>Supplementary proceedings are not maintainable' upon a judgment recovered against a defendant in a representative capacity as attorney in fact for several individuals as underwriters.</p> <p>It seems, that the remedy of the judgment creditor is an action against the individual underwriters pursuant to ' section 1922 of the Code of Civil Procedure.</p>

<p>Motion to vacate an order of arrest. The opinion states the case.</p>

<p>Depositions — Perpetuating testimony—-Right to take — Testimony taken before cause of action accrued.</p> <p>Under the provisions of section 871 of the Code of Civil Procedure, which provides for taking the deposition of a person not a party, whose testimony is material and necessary to a person who expects to be a party to an action about to be brought, the wife of one who has sustained personal injuries may be granted an order for his examination, upon showing that such injuries will probably prove fatal to the end that his testimony may be perpetuated for use in an action expected to be brought by her for damages thereafter to arise through his expected death; and a motion by defendant, who was represented upon such examination, in such an action afterward brought by the wife, to vacate the'order for such examination and to suppress the deposition taken pursuant thereto, will be denied, it not being necessary that the wife at the time of her application for said order should have had. a present cause of action.</p> <p>Depositions de bene esse taken in advance of the bringing of the action were permitted at common law, the sole test being the adequacy of the opportunity offered for an examination and, independently of the Code provisions, are now receivable in evidence in such action.</p>

<p>Calendar: Order on calendar—'Preference: Proceedings to obtain</p> <p>preference—Notice of application for preference — Time for notice.</p> <p>In the county of Queens, motions for a preference on the calendar made under section 973 of the Code of Civil Procedure upon any of the grounds enumerated in section 791 of said Code, must be made at the beginning of the term for which notice of trial is served; and the failure to pursue such practice operates as a waiver of the statutory right to a preference.</p> <p>The Code provisions, however, are not exclusive, and the court has inherent power and authority in a proper case to grant a preference; and where, two months after a cause had been noticed for trial for a regular term of the court, a motion was made for a preference upon the calendar, upon the ground that the plaintiff was ill with a progressive disease and probably would not survive the trial of the action if compelled to wait until it was reached in its regular order upon the calendar, the order asked for was within the discretion of the court.</p>

<p>Application for injunction.</p>

<p>Trade marks and trade names — What may be appropriated — Names of persons.</p> <p>Under sections 50 and 51 of the Civil Eights Law ('Consolidated Laws, eh. 6), which authorize one to prevent or restrain the use of his name or picture by another “ for advertising purposes or for the purposes of trade ” without the written consent of such person, one whose reputation as a writer of juvenile and historical works has been established in his own name is entitled to an injunction restraining a publisher, to whom he had never granted the right, from using his name in connection with the publication of certain works of his published twenty years ago under his nom de flume and never copyrighted.</p>

Motion by the defendant The German Bock Asphalt and Cement Company, Limited, to vacate an injunction, made by Judge Wheeler herein on the 9th day of July, 1909, restraining the defendants Adam, Zimmerman, McEaehren, and the other officers of the city from approving or giving effect to a resolution of the common council providing for the payment to the defendant The German Rock Asphalt and Cement Company, Limited, of the sum of $3,670 for repaving or repairing Swan street…

<p>Motion to set aside verdict for the plaintiff.</p>

<p>Fraternal and mutual benefit associations — Forfeiture, suspension or resignation — Suspension or expulsion of member — Procedure — Judges — Disqualification.</p> <p>The rule, that mo one can be a judge of his own cause or the judge of a cause in which he is interested or involved except in those rare cases where justice would otherwise fail entirely, is applicable to the members of a tribunal constituted under the laws of a fraternal corporation to try a member upon charges against him which may result in bis expulsion.</p> <p>And where, under the laws of such an association, others than members of the supreme council might have been chosen to constitute the court; and where the charges against the member are having falsely accused the members of the supreme council of being robbers and criminals in terms of picturesque vituperation, a tribunal constituted of members of the supreme council is not properly constituted for the trial of such charges.</p> <p>But, where the trial is had before such a tribunal, its judgment is voidable only; and while the judgment stands it is not subject to be attacked collaterally.</p>

<p>Motion by defendant for a new trial upon the court’s minutes, after a verdict in favor of' the plaintiff.</p>

<p>Electricity — Rights in streets — Interference with telephone lines and remedies of company.</p> <p>Highways — Obstructions, encroachments and unauthorized use of highway — Liability as between private persons for obstruction of highway — Liability for driving iron spud into street to move building.</p> <p>Trespass—Actions — Right of action and defenses — Title and possession— Easement — Right of telephone company in streets and subways.</p> <p>A telephone company, having conduits laid under the surface of the streets of a city for the cables containing its wires, is entitled to recover from a building mover damages caused to its conduits and cables by driving an iron spud or stake into the ground in the operation of a capstan and tackle with which he was moving the building through the street.</p> <p>The ground of the defendant’s liability, in such a case, is not his negligence but his commission of an unlawful trespass.</p> <p>Nor do the facts that the telephone company accepted payment of a sum of money to indemnify it for changing its overhead wires so as not to interfere with the moving of the building and that it gave a receipt therefor and sent linemen to lift and cut such wires where necessary amount to a waiver of its claim for damages for injury to plaintiff’s underground conduits or cables.</p> <p>Notice to the linemen who were sent out to cut or lift the overhead wires of the manner in which the defendant was moving his building was not such notice to the plaintiff as imposed upon it the duty of warning the defendant of the danger to its conduits and cables arising from the driving of the spud into the surface of the street.</p> <p>Where one uses the public streets of a city for his own private purposes and goes beneath the street surface by excavation or otherwise, the duty rests upon him to fully inform himself as to what lies below so that he may avoid injury to the property of the city, or others rightfully there.</p>

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

<p>Assignments — Requisites and sufficiency —Assignments in writing —• Deed as assignment of mortgage.</p> <p>The execution of a quitclaim deed of mortgaged premises by those who hold the mortgage thereon does not operate as an assignment of the mortgage.</p>

<p>Damages — Liquidated damages — When contract construed as providing for liquidated damages ■— Services of vocal artist.</p> <p>Where, in a contract for the services of a musical artist, it is provided that on the breach by the artist of the paragraphs relating to the performance of his services he shall pay to the employer the sum of $20,000 as partial compensation for injury to the employer by reason of sueh breach, “ it being impossible to ascertain or estimate the entire or exact loss, damage or injury which the Company may sustain by reason of said breach, and said sum is agreed, upon as partial’ compensation, and not as a penalty,” such provision fixes the measure of the recovery of the employer for the breach of his contract by the artist.</p> <p>A provision in the same contract for a deduction of $400 from the artist’s salary for each failure to appear or sing as required contemplates the continuance of the employment and a mere delinquency on the part of the artist, of which the employer does not avail itself as a breach of the contract and does not impair the provision last mentioned.</p> <p>The breach of a provision in said contract, that whenever the artist shall report he is sick “he shall submit to an examination by a physician designated by the Company, and shall immediately upon recovery report to the Company,” involves a substantial injury to the employer and a breach by the artist of the contract.</p>

<p>Demurrer to complaint.</p>

<p>Action for the rescission of a contract of sale.</p>

<p>Action to remove cloud upon title.</p>

<p>Action to recover an interest in funds in the hands of a testamentary trustee.</p>

<p>Alimony — Scope and amount of award"—Permanent alimony — Particular amounts.</p> <p>Divorce — Causes for divorce or separation — Abandonment and failure to support — Definition and legal elements.</p> <p>There may be an abandonment of a wife by her husband though he furnishes her, through a lawyer, with a weekly allowance for her support. "</p> <p>Where a husband, soon after their marriage, manifests such jealousy of his wife as in a few months produces injury to her health and a condition of hysterical collapse and leads to a written agreement between them, in which the husband pledges himself not to molest her, he having theretofore indulged in a habit of forcibly breaking into her sleeping apartments at all hours simply to vindicate his right to enforce his wishes; and where, after protracted infelicities, he takes rooms at a hotel in Paris, other than the one in which their baggage had been left and to which his wife returned after a tour they had projected was abruptly broken off by a rupture between them, and serves a formal French notice upon her to resume cohabitation and return to him at his conjugal domicile; and where, after another reconciliation and another violent entrance to her apartments, in which his head is injured as the door is shut upon it, he goes off and leaves his wife, who gets back to America with the assistance of his brother-in-law; and where, after still another reconciliation, leaving his wife at their Long Island home, he goes to North Carolina and gives himself up to the surveillance of all her activities and to ceaseless inquisition, by mail and telegraph, until, angered by her entertaining over night a party of friends, he orders the house clo.sed, leaves his wife to find a place of abode, ignores her request to join her at his home, although he provides her with a weekly allowance for her support through a lawyer, held that. he has abandoned his wife and that she is entitled to a decree of separation against him.</p> <p>Alimony is not based on a definite part of the husband’s estate or his yearly income but should be fixed with due regard to the station in life of the parties and the circumstances of their separation.</p>

<p>Account stated — What constitutes — Nature and essentials in general — Need of capacity of parties to contract — Municipal officers.</p> <p>Bankruptcy — Discharge of bankrupt — Debts affected — Debt created while acting in fiduciary capacity — City treasurer.</p> <p>Fidelity bond: Formation and discharge of contract of surety — Discharge: Extent and fixing of liability — Nature of default.</p> <p>Interest — Computation — Accrual of liability.</p> <p>Municipal corporations — Officers and agents — Officers and employees or agents other than mayor and common council — Liabilities of officers and interest in municipal contracts — Liability of treasurer.</p> <p>Where a city treasurer executed a bond for the faithful performance of his duties, in pursuance of the city charter, which provided that the bond should be a lien on all the real estate of the treasurer and his sureties in the county until the conditions thereof, with all the costs and charges which might accrue upon the prosecution thereof, should be fully satisfied, held that, in the absence of some statutory provision expressly conferring such • power upon it, the common council had no power to satisfy the bond without consideration and to deprive the city of the security which the statute intended to give it.</p> <p>Where a city officer presents, to a board having power to audit them, his accounts, in which he fails to charge himself with moneys actually received, and his failure to include such amounts is unknown to the auditing board, their audit is not binding in favor of the officer or his sureties as to the amounts not accounted for by him.</p> <p>The presentation of the accounts of a city officer to an auditing board do not create an account stated between the officer and the city, as an account stated derives its force from the agreement of the parties, expressed or implied, and an auditing hoard is without power to contract on behalf of the municipality.</p> <p>The city, in such a case, by its failure to discover a defalcation in the city treasurer’s office until after the term of the officer during whose administration the defalcation occurred has expired and the officer himself has been discharged in bankruptcy, does not lose its remedy against the sureties upon his official bond.</p> <p>In such a case, the discharge in bankruptcy of the principal is no defence to an action against the sureties.</p> <p>Where an action is brought by a city in its corporate name, by its proper law' officers, it will be presumed that the action is authorized until the contrary appears; and an ordinance, authorizing an action to collect and recover on a. treasurer’s bond such amounts of' money paid to the treasurer and belonging to the city as may be shown to have been stolen from or misappropriated in the office of the city treasurer and not duly accounted for, should be construed as meaning not only moneys actually stolen from the room in which the city treasurer held his office, or misappropriated in that particular room, but as including moneys of the city stolen or misappropriated by the treasurer or his subordinates in such a way that the treasurer is liable therefor.</p> <p>In such a case the city is entitled to interest upon the amount misappropriated from the time when the treasurer turned over his office to his successor.</p>

<p>Insurance — Extent of loss — Life and accident insurance — Expenses of litigation.</p> <p>Where an insurance company insures a telephone company against accidents, by a policy which provides that the assured shall give immediate notice of accidents, with full particulars, and, if a suit is brought, immediately forward to the insurance company all papers, and that the insurance company will, “ at its own cost, defend such proceeding in the name and on behalf of the assured or settle the same unless it shall elect to pay to the assured the indemnity provided” in the policy; that the assured shall not settle any claims, except at its own cost, nor incur expenses, nor interfere in negotiations for settlement or legal proceedings without the consent of the insurer; and where, after the happening of an accident, the attorneys for the insurance company, defending an action against the telephone company for damages for personal injuries sustained by one of its employees, against which it was insured, employed an expert witness, the insurance company is liable for his compensation, although he is actually sworn on the trial by the plaintiff; and where the witness thereafter sues the telephone company for his compensation, which notifies the insurance company and defends the suit, which results in a judgment against it, the insurance company is liable for the amount of such judgment and the expenses incurred by the telephone company in the defence of the latter suit.</p>

<p>Highways — Defective highways — Liability of town for personal injuries caused by defects.</p> <p>The liability of towns for defects in highways is wholly based upon the neglect of the commissioner of highways, and, where the defect was created by an overseer of highways and it was not directly authorized by the commissioner and he was not present at any time during its creation or thereafter prior to the accident and had no knowledge of its existence, it was error to submit to the jury the question of the liability of the town in an action against it upon the theory that the overseer’s negligence was imputable to the commissioner and that there could be a recovery against the town therefor.</p>

<p>Landlord and tenant — Rights, duties and liabilities in regard to premises — Incumbrances, taxes and assessments — Covenants and "agreements as to taxes and assessments.</p> <p>Municipal corporations — Taxation and water rents — In general — Fiscal year.</p> <p>In the city of New York, the fiscal year is coincident with the calendar year and the annual tax which becomes a lien on real estate in said city on the first Monday of October is for the current calendar year.</p> <p>And where a tenant who has agreed to pay all taxes during his term sublets to a subtenant, who agrees that the taxes payable on the first Monday of October shall be apportioned between the parties as of the day when possession shall be delivered under the sublease, the subtenant is liable for the proportionat 2 amount of the taxes due to that part of the calendar year subsequent to the delivery to him of possession.</p>

<p>Action upon a lease.</p>

<p>Action upon a lease.</p>

<p>Arbitration and award—Submission — What constitutes—Action in s court not having jurisdiction:</p> <p>Contracts — Interpretation of contract — General rules of interpretation— Interpretation as to parties.</p> <p>Offer and acceptance — Sufficiency of acceptance — Conditional acceptance.</p> <p>Sales: Interpretation and evidence of contract; Sale of timber to be cut by buyer — Quantity of goods sold: Remedies of seller —</p> <p>Rescission — Right in general.</p> <p>Trusts — Execution and administration of trust — Personal liability of trustee to estate and third persons — Contracts with trustee.</p> <p>■ Where, in an action in the United States Circuit Court, the plaintiff’s complaint is dismissed on the ground that he has failed to establish a cause of action, and, on appeal by the plaintiff, the United States Circuit Court of Appeals dismisses the action, holding that the United States Courts had no jurisdiction to- entertain it, the action and proceedings in the United States Circuit Court do not amount to a common law arbitration or preclude the plaintiff thereafter from maintaining an action in a court having jurisdiction, but the case resembles one in which an arbitrator, duly chosen, has refused to act and pass upon the claims of the parties.</p> <p>Where a contract for the sale of logs provided for ascertaining quantities by sealing the logs but was silent as to what scale should be adopted in measuring them; and it appears that there existed different rules for measuring and that the quantity varied according to the rule adopted, the court will presume that the quantity should be ascertained by the rule in common use at the place where the logs were sold and the scaling was done.</p> <p>Where one to whom an offer to sell logs is made instead of accepting it unconditionally adds further provisions and conditions thereto, but the parties making the offer in substance assent thereto, but limit the quantity .to such as they may find expedient to bring to the river, which the purchaser is notified will amount to much less than he has stated, to which no objection is made, and the parties proceed to carry out the arrangement in accordance with their correspondence, a contract sufficiently appears.</p> <p>But where, upon scrutinizing the correspondence between the parties which evidences their contract, the court is unable to discover any agreement to cut and deliver at the river any standing timber and there is nothing found which varies the sellers’ proposition limiting their agreement to sell to such logs as they found it expedient to bring to the river, the contract is not to be construed as a sale of standing timber.</p> <p>Such a contract does not violate chapter 113 of the Laws of 1895 of the State of Pennsylvania w'hich requires for the sale of any standing timber a deed executed and acknowledged as a conveyance of lands.</p> <p>And where it was agreed in May that the logs should be scaled by two competent log scalers, one to be furnished by each of the parties, but the scaling was not actually begun until the following August, the sellers if they had the right to have the scale made prior to that time waived it when they authorized their scaler to act with the one selected by the buyer.</p> <p>And where a dispute arose between the parties as to the rule applicable to the scaling of the logs and the sellers demanded a substantial sum above what the buyer claimed he was liable to pay under the rule he claimed to be applicable and more than the amount justly due, but the buyer finally conceded the sellers’ claim who then stated they had decided not to sell the logs and thereupon made other disposition of them, held, that the purchaser w'as not bound to have tendered the amount unjustly claimed and that the sellers’ rescission gave the buyer a right of action for breach of the contract of sale.</p> <p>Those who are not trustees in any legal capacity but deal with personal property by the common consent of the creditors of the owner for the benefit of themselves and the others are per-</p> <p>sonally liable for the breach of a contract of sale made by them, though they describe themselves as trustees in making such contract.</p>

<p>Partnership — Dissolution, settlement and accounting — Dissolution by. order of court — Misconduct of partner.</p> <p>Where a special partner in a firm of which plaintiffs are general partners becomes a special partner in a competing business organized by two of plaintiffs’ former employees, the plaintiffs may maintain an action to dissolve their firm.</p>

<p>Action to recover damages for trespass.</p>

<p>Application made at Special Term, Suffolk county, for a writ of mandamus to compel Protection Hose Company, one of the five companies constituting the fire department of the village of Hempstead, to turn over to the relators a certain prize trophy, consisting of a silver pitcher, goblets and stand, donated by one W. S. Hofstra, to become the property of the company winning if three times.</p>

<p>Joint agreements and liabilities — On contracts — In general — Joint contracts.</p> <p>Stenographers — Fees and compensation — Persons liable.</p> <p>Where, upon a reference to hear and. determine, the parties stipulate that the fees of the stenographer be taxed with the referee’s costs, the parties are jointly liable to the stenographer 5 and, in an action brought against one of them only, a demurrer to the complaint for defect of parties should be sustained, with costs.</p>

<p>Charities — Requisites and validity in general: What constitutes charitable use: Certificate as to beneficiary — Effect of chapter 701, Laws of 1893.</p> <p>Trusts — Nature and elements in general — What law governs.</p> <p>The validity of a testamentary trust is to be determined by the law of the place where the fund is situated and is to be administered rather than by the law of the testator’s domicile.</p> <p>A provision in a will that the testator desires his executors to divide the surplus of his estate “ among such American charities they may think well of,” with a suggestion as to certain charities to which the testator “ would like ” the sums to be given, constitutes a gift for charitable uses within the meaning of chapter 701 of the Laws of 1893, as amended by chapter 291 of the Laws of 1901, and creates a valid trust.</p>

<p>Wills: Interpretation and construction — Disposal of the entire estate — Disposal of lapsed or void devises or bequiests or of otherwise undisposed of property — Lapsed, void or ineffectual gifts: Validity, operation and legal effect —Agreements, consents, election,, acceptance, waiver, etc., of beneficiary or others — Election of creditor preferring claim to legacy.</p> <p>Where a testatrix left a sum of money to her daughter-in-law, pursuant to an agreement thus to compensate, her for supporting her husband, the son of the testatrix; and where, after the death of the testatrix, the daughter-in-law presents a claim against her estate based upon the agreement and the claim after having been rejected by the executor is established and paid, the claimant is not entitled also to the legacy under decedent’s will intended by her to carry out her agreement.</p> <p>And such legacy, in the absence of any different provision in said will, follows the general rule that all legacies which lapse or fail of effect become part of the residue.</p>

<p>Carriers — Statutory penalties enforcible against carrier — Liability to penalty for refusing transfer ticket: Obligation to transfer: Procedure— Burden of proof.</p> <p>Where the most direct route by which a street railway passenger can reach his destination requires him, in consequence of a subway in process of construction, to alight and walk 1,200 feet through a viaduct to reach another car, the company cannot reasonably refuse to give him a transfer by another less direct route which would afford him continuous passage to his destination.</p> <p>In an action for a penalty under section 104 of the Bailroad Law the plaintiff is hound to show the relation between the defendant and the line to which the right of transfer was claimed.</p>

<p>Insurance companies — Control and regulation — In general — Superintendent of Insurance — Power to examine.</p> <p>Perjury: Materiality — Belief in extent of material fact: Indictment.</p> <p>The provision of chapter 300 of the Laws of 1909, which added to the Insurance Law a new section to be designated as section 63, was intended to extend the jurisdiction of the Superintendent of Insurance to insurance corporations of every character and, by implication, to authorize him to examine the affairs and question under oath the officers of any fraternal beneficiary society or town and county co-operative insurance corporation, notwithstanding section 57 of the Insurance Law which had theretofore exempted such societies and corporations from such examinations; and the false swearing of any officer of any such society or corporation on any such examination, upon a subject material thereto, constitutes perjury.</p> <p>Difficulty of proof does not invalidate an indictment; and an indictment for perjury in such a case is good, though the fact as to which perjury is alleged is the belief or opinion of the witness.</p> <p>Where an indictment states a fact to be material to an examination in such a case, though the statement of the witness was as to his belief in the existence of such fact only, the indictment should be sustained.</p>

<p>Eminent domain — Measure of compensation: In general — Where part of property is taken: Injury to property not taken.</p> <p>A railroad company from which the States acquires lands by the right of eminent domain is entitled not only to the market value of the lands taken but to the depreciation of the company’s other, contiguous lands not taken, by reason thereof; and, in a ease where no question of benefits to the remaining property is involved, the damage may be ascertained either by proof of the market value of the land appropriated and of the damage sustained by the company to the rest of its lands or by proof of the value of the company’s property Before and after the taking.</p>

<p>Claim against the State for damages. The opinion states the facts.</p>

<p>Certiorari — When the writ lies — Exercise of judicial functions.</p> <p>The action of the mayor "of the city of New York in removing the aqueduct commissioners, appointed and acting under the Laws of 1883, chapter 490, and the acts amendatory thereof, by a written notice, without trial or hearing, is not reviewable by a writ of certiorari. .</p>

<p>Motion to direct execution of an order adjudging defend- Jj ants guilty of a criminal contempt. The opinion states the/ case.</p>

<p>Objections to report of commissioners of estimate and appraisal.</p>

<p>Proceeding under the Liquor Tax Law.</p>

<p>Application for writ of mandamus. The opinion states the case.</p>

<p>Motion for peremptory writ of mandamus requiring reclassification of employees in office of corporation counsel of city of Buffalo.</p>

<p>Mandamus — Mandamus against public officers — Appointment or removal of public officers or employees — Reinstatement.</p> <p>Municipal corporations — Fire department — Retirement — Retirement from active duty; Placing on pension list.</p> <p>The provision of section 790 of the Greater New York charter, relating to retirement upon a certificate that a member of the fire department is permanently disabled so as to be unfit for duty, is not satisfied by a certificate that a member is disabled from the performance of the duties of his position or of fire duty.</p> <p>But the commissioner has discretionary power to retire a 'member found to be disqualified for the performance of his duties provided that, should the member’s disability he caused by injuries received in the service disqualifying him only from performing active duty on the uniformed force, he shall be employed at the same salary in some other position.</p> <p>In such a case, the certificate of the medical officers is not conclusive on the question whether the disability was caused by injuries received in service; and, where that question is in issue in a proceeding for a writ of mandamus on the application of a member of the department who has served upwards of twenty years, it should be tried out under an alternative writ.</p>

<p>Election of officers — Nominations and preparation of official ballot — Primary — Enrollment — Marking enrollment blanks.</p> <p>The provision of section 26 of the Election Law for marking an enrollment blank with a pencil having black lead is directory merely, and although a voter used a fountain pen he may compel the board of elections to place his party affiliation upon the enrollment book of his election district.</p>

<p>Pbooeedings supplementary .to execution.</p>

<p>Process — Service — Service on corporations — Person' designated to receive summons — Revocation.</p> <p>The designation of the State Superintendent of Insurance, pursuant to section 30 of the Insurance Law, to receive service of process, is not terminated or revoked by the revocation by the State Superintendent of the license of the company to do business in this State.</p>

<p>Attachment — When attachment authorized — In general — Two attachments.</p> <p>Two warrants of attachment may be issued in the same action, one on the ground of defendant’s nonresidence and another on the ground of the transfer of his property with intent to defraud creditors.</p>

<p>Ferries — Grant, franchise or license — Duty of licensee — Obligation to operate.</p> <p>Franchises—Duties of grantee — Persons upon whom obligation rests.</p> <p>Mandamus — Mandamus against public officers — Duties performance of which may be compelled — Operation of ferry.</p> <p>Municipal corporations — Remedies of taxpayers and corporators — Action by taxpayer to control conduct of municipal affairs or to prevent waste — Not maintainable to compel exercise of corporate functions.</p> <p>The proper method to compel a corporation to perform a dufy imposed upon it by its charter is mandamus and not a suit in equity.</p> <p>A taxpayers action is available to prevent any illegal official act on the part of the officers of a municipality, or to prevent waste or injury to its property; but' it cannot be resorted to for the purpose of compelling the municipality to exercise it¿ proper functions.</p> <p>Purchasers at a foreclosure sale who buy the land, boats and equipment of an insolvent lessee of a ferry belonging to the city of New York and the rights of the lessee, if any, under its expired leases, though for a time they voluntarily operate a ferry are not bound to continue its operation, where they acquire no interest in the city’s franchise nor come into possession of any property devoted to public use.</p>

<p>Corporations: Promoters and contracts made before incorporation — When corporation bound by acts of promoters — Agreement for cumulative voting: Rights of stockholders and actions by them'— In general — Rights of minority stockholders — Enforcing agreement for cumulative voting.</p> <p>Injunction — Who and what may be enjoined — Acts of private associations and corporations or officers thereof — In general — Protecting minority stockholders in right of cumulative voting.</p> <p>Where the stockholders of several corporations agree to form a new company which shall issue its stock for that of the old companies, and the agreement provides for cumulative voting and a certain number of directors which will make that cumulative voting effective, the new company by accepting title to the stock of the old companies adopts and ratifies the agreement of the stockholders and becomes bound thereby; and the corporation and its stockholders will be restrained from reducing the number of its directors, so as to render cumulative voting ineffective, at the suit of a minority stockholder.</p>

<p>Injunction — Who and what may be enjoined — Breach of contract — Contracts for personal services — Contracts with singers and actors.</p> <p>Husband and wife — Disabilities and privileges of coverture — Capacity to contract — French law.</p> <p>The capacity of an operatic singer domiciled in the United States to contract for services to be rendered in the United States is to be governed by the laws of that country, though the contract was made in France. |</p> <p>By the French'’ law, a married woman, the wife of an American citizen, who has lived separate and apart from her husband for four years and supported herself because he has failed to support her, may make a valid contract in France to perform services as an operatic singer without the husband’s consent.</p> <p>The services of an operatic singer may be so far unique and extraordinary as to justify an injunction against her singing for any other manager than the one for whom she has contracted to sing, though he have other singers who can sing her parts, even if her acknowledgment in her contract that her dramatic and vocal abilities are unique would be ineffectual to make them so.</p>

<p>Motion by defendants to open default.</p>

<p>Motion by the plaintiff for leave to discontinue an action for divorce.</p>

<p>Pleading—Motions relating to pleadings—Motion to strike out matter from pleading — Grounds — Scandalous and impertinent matter.</p> <p>Where, in an action on an accident policy issued by defendant insuring plaintiff against suits for personal injuries, the complaint alleges that, upon the bringing of such an action against him, plaintiff gave notice thereof to defendant with the fullest information obtainable at the time, furnished defendant with the names of the material witnesses for the defense, all of whom were in attendance upon the trial which was conducted by an attorney unfamiliar with the. law and the facts who failed to call plaintiff’s material witness or properly or fully examine the plaintiff as a witness upon said trial so as to elicit from him all facts within his knowledge bearing upon the defense to said action and conducted the defense in so careless and indifferent a manner that judgment wias given against plaintiff, such allegations may not be stricken out on motion as scandalous, where plaintiff to sustain an action under the policy must prove that defendant negligently defended the personal injury action.</p>

<p>Costs — Payment and enforcement thereof — Staying further proceedings on actions till costs paid — Staying second action till costs of former-paid — Same cause of action.</p> <p>The general rule is that proceedings in a second action for the same cause as the first action should he stayed until the costs of .the first action are paid, and the fact that plaintiff is pecuniarily unahle to pay the costs of the prior action is not a sufficient excuse to make an exception to the rule.</p> <p>Where the complaint, in an action brought in the Municipal Court of the city of New York, is dismissed, with costs, solely through the fault of the plaintiff himself, the nonpayment of the costs operates as a stay of proceedings in a subsequent action brought by him in the Supreme Court upon the same cause of action. ;</p> <p>The rule of section 779 of the Code of Civil Procedure as to a stay of proceedings on the part of a party required to pay costs ■of motion should be applied to costs in an action where another action is commenced between the same parties to recover upon the same cause of action.</p>

<p>Witnesses: Attendance and privileges of witnesses and production of documents — Contempt: Fees — Mileage.</p> <p>The mileage of a witness residing more than three miles from the place of attendance is to be computed from her residence, irrespective of the place of service of the subpoena.</p> <p>■ Where the moving affidavit on a motion to punish a witness for contempt in failing to obey a subpoena is silent as to where service thereof was made upon her, and her answering affidavit gives her residence, by street and number, more than three miles from the court-house where she is to appear, it will be presumed that she was served with t'he subpoena at her residence, and, where no mileage fees were paid her, a motion to punish her for contempt will be denied.</p>

<p>Costs—Amount: Items of expense — Disbursements — Disbursements</p> <p>due to several trials: Statutory allowances at various stages of proceedings — Trial fees — Number of trial fees. |</p> <p>Where a judgment in favor of plaintiff was reversed with costs to the appellant to abide the event, and upon a second trial the^ complaint was dismissed and defendant had judgment which, on appeal, was reversed with costs to abide the event, and upon a third trial judgment was entered upon a verdict in favor of plain-1 tiff, she is entitled to tax a trial fee for each of the three trials; two items of twenty-five dollars each for proceedings before and after granting a new trial; ten dollars for making and serving a case of more than fifty folios; twenty dollars for making and serving amendments to case, her actual disbursements upon the last trial and printing disbursements.</p>

Appeal by the defendant from the- taxation of costs by the county clerk, and also an order is asked vacating and setting aside the judgment heretofore entered in favor of the plaintiff.

<p>Motion to set aside verdict and for a new trial in an action for alienation of affections. The opinion states the case.</p>

Action against a trustee in bankruptcy to recover chattels alleged to have been preferentially transferred. The, opinion states the case.

<p>Action to set aside a transfer of corporate assets and to establish a lien thereon by a creditor of the corporation.</p>

<p>Divorce — Trial — Nomination and qualifications of referee.</p> <p>The parties to an action for divorce cannot agree upon a referee to take testimony to be used upon the reference ordered by the - court upon application for judgment.</p>

<p>Motion for the confirmation of the report of the referee appointed in proceedings to distribute a surplus arising upon the foreclosure of a mortgage.</p>

<p>Motion for judgment on the pleadings in an action for rent.</p>

<p>Action upon a contract.</p>

<p>Trade unions — Membership — Expulsion of members — Grounds.</p> <p>A provision in the constitution of a trade union limiting its membership to those who have applied for citizenship is important in safeguarding its membership; and it is a gross violation of good faith to gain admission to the union hy forged certificates and false representations; and one who has done so may be expelled under a .provision for expulsion for acts which tend to the injury of the members.</p> <p>A provision for expulsion “ by a two-third majority ” of the members is satisfied by a vote of 128 in favor of expulsion and no vote against it at a meeting where 250 members are present.</p> <p>When the determination of a question is committed to a board or committee of definite numbers who act by delegated powers under a provision that their act shall he hy a majority or two-thirds, this means a majority or two-thirds of all the members of the board or committee; but where the decision of a question is committed to a body of undefined numbers who act by original and not delegated powers a majority or two-thirds means a majority or two-thirds of those who participate in the determination.</p>

<p>Highways — Law of the road and rights of traveler: Speed regula-, tions — Signs: Statutory offenses — Punishment.</p> <p>The object of section 291 of the Highway Law is to make certain uniform motor vehicle speed regulations applicable to the entire State as a substitute for the many differing rules in each locality.</p> <p>The statute requires the erection of signs in all areas throughout the State in which the speed upon the public highways is restricted to -ten miles an hour; in all unmarked portions of the road inside any city or village the speed may be fifteen miles an hour and outside twenty miles an hour.</p> <p>An information charging defendant with running a motor vehicle upon a closely built-up portion of Main street, in the village of Ellenville, at a speed exceeding ten miles, viz., fifteen miles an hour, in. violation of section 291 of the Highway Law, but which fails to allege the erection of a sign with the inscription required by statute at the place where the excessive speed was to be reduced, does not allege the commission of a crime.</p>

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

Motion by defendant for a new trial after the direction of a verdict in favor of plaintiff in an action upon three checks. The opinion states the ease.

<p>Jurisdiction — Jurisdiction of particular courts — City and Marine Courts.</p> <p>The City Court of the city of New York has jurisdiction of an action brought by a nonresident of the State against a foreign corporation upon a check made payable in this State, where, after due presentment, payment was demanded therein and was refused.</p>

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

<p>Action to foreclose mortgages. The opinion states the case.</p>

<p>Motion to dismiss complaint,</p>

<p>Action to foreclose trust mortgage.</p>

<p>Action in ejectment, tried before the court without a jury-</p>

<p>Tbial of demurrer by plaintiff to defendant’s answer as being insufficient in law.</p>