Volume 66 — New York State Reporter

<p>Neligence—Proof.</p> <p>In an action for negligence in permitting a wire on the roof of a building to become loose, the evidence was held sufficient to go to the jury on the question of ownership and control of the wire, and to justify the jury in their conclusion that the wire was owned and controlled by the defendant, in the absence of any denial or explanation.</p>

<p>Appeal from an order snstaining a demurrer.</p>

<p>Appeal from an interlocutory judgment overruling a demurrer to the complaint.</p>

<p>1. Pleading—Party .</p> <p>The addition of the words, “ assignee for the benefit of creditors,” etc., to the name of the defendant in the title of the complaint, does not affect the nature of the action, where the complaint makes no demand against him , as assignee.</p> <p>2. Assignment for creditors—Lease.</p> <p>When the occupation by an assignee for- the benefit of creditors of premises leased to the assignor supports a finding of the acceptance of the lease by the assignee.</p>

<p>Mechanic’s lien—Cancellation.</p> <p>An order directing the cancellation of a mechanic’s lien, without requiring a deposit to secure it, is void, though the claimant, served with notice of motion, did not appear.</p>

<p>1. Deed—Delivery.</p> <p>The recording of a deed does not prove a delivery where the grantee had no knowledge thereof.</p> <p>2. Same—Subsequence acceptance.</p> <p>A subsequence acceptance by the grantee will not relate back to the time of recording, so as to affect the title of a purchaser at-a sale under the foreclosure of a mortgage given by a former owner prior to such acceptance.</p> <p>S. Evidence—Action to redeem.</p> <p>In an action to redeem from a mortgage, the defendant may show that, at the time of the foreclosure sale, the plaintiff who was not served with summons in such action, had not accepted the deed under which he claims title.</p>

<p>1. Vendor and purchaser—Recovery op money paid.</p> <p>Where the vendor stands upon his strict legal right to retrain the money which has been paid by the purchaser, on the ground that at law no recovery can be had if the purchaser is at fault in refusing to perform at the time fixed for the purpose, he cannot invoke the aid of any equitable principle in support of his position, but must submit to be bound to a full and exact performance of his part of the agreement at the time specified.</p> <p>2. Same.</p> <p>In such case, the vendor is bound to relieve the property from the liens and clouds upon his title and to discharge the taxes and the Croton water rents, before he can expect or demand performance on the part of the purchaser.</p> <p>3. Same.</p> <p>He cannot compel the purchaser to assume his obligation to pay the taxes, though accompanied by an offer to allow the amount out of the purchase money.</p>

<p>Judgment—Correction.</p> <p>The appellate court cannot amend a judgment of dismissal, but not on the merits, so as to be on the merits, in the absence of findings of fact in the decision which are necessary to support such a conclusion.</p>

<p>1. Insurance—Fire—Notice op loss—Delay.</p> <p>While a compliance with a provision requiring immediate notice in writing of loss is a condition precedent to a recovery upon the policy, the requirement is to he liberally construed in favor of the assured.</p> <p>2. Same.</p> <p>Where the explanation given is of such a character as to show diligence on the part of the assured in attempts to comply, associated with the fact that the company was possessed of actual knowledge of the loss immediately after its occurence, or where the company had assumed a position or done some act, which either prevented timely notice being given or had misled the assured in reference thereto, or which was'tantamount to a waiver of strict performance, a case is presented which excuses the delay.</p> <p>3. Same.</p> <p>The words, “ forthwith” or “ immediate,” when used in reference to the notice of loss, mean within a reasonable time, considering the circumstances of each case.</p> <p>•4. Same.</p> <p>Such question is one for the jury.</p>

<p>Appeal from an interlocutory judgment, sustaining a demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action.</p>

<p>1. Summons—Fictitious name.</p> <p>The plaintiff’s ignorance of the defendant’s name should be made to appear in the summons, in an action in the district court, in order to justify the use of a fictitious name.</p> <p>2. Attorney and client—Authority.</p> <p>In the absence of proof of special authority conferred upon the attorney, his acts in directing the levy upon, or the taking of, goods upon process are in excess of his general powers, and do not affect or subject his client to liability.</p>

The causes of action alleged in the complaint are as follows : (1) That plaintiff, a manufacturer of grit or groat grain, leased from defendant the building known as No. 511 East Eighteenth street, New York, for a term of five years and three months, commencing February 1, 1892, at a rental of $550 per year, payable monthly in advance.

<p>Negligence—Opticians.</p> <p>Opticians, in accepting a prescription and undertaking to fill it, assume a skill adequate to and the care necessary for, a-competentand proper completion of lite work, and are liable for the injuries resulting from their negligence.</p>

<p>Appeal from a judgment dismissing the complaint.</p>

<p>Motion for a new trial on exceptions, ordered to be heard at general term in the first instance.</p>

<p>Dower—Action against husband’s grantee.</p> <p>The sufficiency of land remaining of the husband's estate to satisfy all claim of dower is no answer to an action for dower out of the land of the husband s alienee.</p>

<p>Appeal—What brought tip.</p> <p>An appeal by administrators from a decree, settling their, accounts as presented, does not bring up for review the rejection by the surrogate of the individual claim of one of them against the estate.</p>

Action by receiver on a promissory note. By stipulation of the parties, the cause was tried by the court without a jury.

<p>Evidence—Surveyors.</p> <p>A surveyor is prohibited from testifying as to a survey made by him, unless he shall make oath, if required, that the chains or measures used by him were conformable to the standards of the state when such survey was made, and testimony that they conformed to the standards of the United States, is insufficient.</p>

<p>1. Justices’ courts—Judgment.</p> <p>A judgment in justice’s court, rendered after four days from the time the cause of action was finally submitted to the justice, is void, where the party against whom it is rendered did not consent to the extension of time.</p> <p>2. Attorney—Authority.</p> <p>Authority to appear for a party in justice’s court does not carry with it power to enter.into a stipulation to extend the time within which the justice may render judgment.</p>

<p>1. Insolvency—Discharge.</p> <p>An application for the discharge of an insolvent debtor must be made to the county court of the county in which he has his domicile.</p> <p>2. Same.</p> <p>The insolvent debtor was held, under the facts and circumstances of this case, not to reside in Ulotor county, within the meaning of § 2150 of the Code.</p>

<p>Pleading—Answer—Supplemental.</p> <p>An application for leave to file a supplemental answer alleging that the plaintiff, a foreign corporation had failed to file the certificate required by law, will he denied on the ground of loches, where it was not made until thirteen months after joinder of issue, though the complaint had alleged that plaintiff was a foreign corporation. ></p>

<p>Appeal from a judgment, rendered in favor of defendant.</p>

<p>1. Appeal—Inquest.</p> <p>Common Pleas will, on appeal, review the evidence, given upon an inquest taken in a district court.</p> <p>3. Damages—Conversion.</p> <p>In an action of conversion, the value of the chattels at the time of the trial furnishes no basis for a recovery, where they are not shown to be in nature fluctuating as to market value, and no element of malice appears in the case.</p>

<p>Will—Equitable conversion.</p> <p>Where the testatrix gives to her husband the use during his life of all her real estate, and, if that should be insufficient for his support, directs the executors to use a requisite portion, or, if necessary, the whole, of the real estate for such purpose, and to divide the proceeds from the sale of any of her real estate, if any is left, equally between her children, giving them full power and authority to sell, transfer and convey, by deed or otherwise, such real estate, the power of sale operates as a conversion of the land into personalty.</p>