Volume 67 — New York Miscellaneous Reports

<p>Appeal from a judgment of the Gity Court of Albany.</p>

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

<p>Conflict of laws — Contracts — General principles — What deemed to be place of contract or place of performance.</p> <p>Foreign corporations — Recognition, regulation and status: Certificate of right to carry on business: License fee — Effect of nonpayment.</p> <p>A foreign corporation, though it' has not procured from the Secretary of State a certificate of authority to do business in this State, may maintain an action upon a contract with it nor." made in this State; and it is no defense that it has not paid tiio license fee required by section 181 of the Tax Law for the privilege of carrying on business in this State.</p> <p>Where defendant in this State signed one of the blank applications tendered him by an agent of a foreign corporation conducting the business of a correspondence school and “ doing business ” in this State, and said application was sent to the company’s home office with part payment of the stipulated price for defendant’s tuition, and, upon his acceptance as a student, he paid a further sum under the contract which provides that, in case default shall be made in the payment of any instalment due plaintiff, it may at its option determine that the balance unpaid under the contract shall at once become due and payable, and defendant thereafter makes default, the plaintiff is entitled to recover the balance unpaid for tuition, the contract not being a New York contract.</p>

<p>Claim against the State by a tenant of 'property appropriated for the Barge canal.</p>

<p>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>

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

<p>Bankruptcy: ,Proof and payment of claims—■ Debts provable — Contingent liability: Discharge of bankrupt—■ Debts affected — Discharge of contingent liability.</p> <p>Although the Bankruptcy Act of 1898 does not expressly provide that contingent claims are provable, sueh a liability is a debt “upon a contract express or implied” under section 63a(d) of that act.</p> <p>The holder of a note indorsed by a bankrupt, which matured after the filing of the petition in bankruptcy but within the time allowed for filing proofs of claim, may prove the same against the estate.</p> <p>Where, in an action against the defendant as maker of three promissory notes and as indorser of another which matured after the filing of a bankruptcy petition against him, it appears that the indorsed note and tiro of the others were given prior to the filing of the petition in bankruptcy against defendant and the other note two days thereafter, and there is no evidence that the latter was for an antecedent debt, though the indorsed note was not actually proved against the estate, the defendant’s discharge in bankruptcy is a defense to all of the notes éxcept the one given after the filing of the petition in bankruptcy.</p> <p>A judgment for defendant upon all four notes should he reversed, and a new trial granted.</p>

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

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

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

<p>Appeal by Max E. Bloch from an order of the City Court of the city of-Mew York, adjudging him in contempt of court.</p>

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

<p>Depositions — Depositions on commission — Use as evidence—Use by adverse party — Reading cross-interrogatories. ,</p> <p>Testimony taken under cross-interrogatories frequently constitutes merely a direct examination, and where, after a plaintiff has read from the deposition of a witness taken on defendant’s behalf the direct testimony of said witness, it is improper to rule out the entire cross-examination upon the theory that plaintiff had made the witness his own and could not, therefore, cross-examine him.</p> <p>Whether under such circumstances the plaintiff should be allowed to read such testimony of the witness given in response to the cross-interrogatories as tended to impeach his testimony upon his direct examination, qwasre.</p>

<p>Insurance: Right to proceeds—'Nature of beneficiary’s interest: Actions on policies — Presumptions—'Title of beneficiary.</p> <p>The beneficiary designated in an ordinary life insurance policy has a vested interest therein from the inception of the contract unless the insured has reserved the right to change the beneficiary.</p> <p>The beneficiary under a policy issued by a casualty company, doing business under article 2 of the Insurance Law (Consolidated Laws, ch. 28), which contains no provision permitting the insured to change the beneficiary named, has a vested interest in the policy and not a mere expectancy or inchoate right.</p> <p>Where such a policy further provides that the legal representatives of the insured are entitled to recover thereon only “in the event of the prior death of such beneficiary,” the administrator of the insured, as plaintiff in _ an action on the policy, must allege and prove that the beneficiary died before the insured.</p> <p>Where both the insured and the beneficiary died in a common disaster, no presumption arises that either survived the other.</p> <p>Whitney, J., dissented.</p>

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

08, costs, after a verdict by the jury in favor of plaintiff for $850, “ Subject to the opinion of the Court,” had been set aside.

<p>Appeal from a final order of the Municipal Court of the city of Hew York, ninth district,- borough of Manhattan, in a summary proceeding, denying the petition of the landlords for an order dispossessing the tenant -and the latter’s under-tenant.</p>

<p>Summary proceedings — Persons who may bring proceedings — Landlord who has made subsequent lease. '</p> <p>A landlord may maintain summary proceedings against a tenant who holds over, though he has executed another lease to begin upon the expiration of the former term.</p>

Appeal by the 'above-mined appellants, composing the firm of Hajek Brothers & Go., from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of New York, eighth district, borough of Manhattan.

Appeal by the defendant from a judgment and orders of the Municipal Court of the city of New York, first district, borough of Manhattan.

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

Appeal by plaintiff from a judgment of the Municipal Court of the city of Hew York, entered in its favor after a trial by the court without a jury, for thirty-nine dollars and twelve cents.

<p>Sales — Remedies of purchaser: Rescission—'Election of remedies: Recoupment and counterclaim — Breach of warranty as counterclaim.</p> <p>Upon a sale hy sample the buyer has the right to rescind when the goods delivered do not conform to the sample, or he may retain the goods and counterclaim for damages.</p>

<p>Officers — Compensation — Extra compensation; Reimbursement.</p> <p>Where a warrant in summary proceedings to recover the possession of real property does not require the marshal to remove the property of those whom it directs him to evict but he hires men to remove such property and pays them seventy-five dollars, the landlord, after having paid the amount to the marshal, cannot recover it from the tenant.</p> <p>Whitney, J., dissented.</p>

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

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

<p>Appeal by the plaintiff from an order of the City Court of the city of ¡New York, denying a motion for an order under section 1391 of the Code of Civil Procedure.</p>

<p>Assignments — Property or rights assignable — Expectant estates. Supplementary proceedings—-Receiver—-Property rights and management and disposition of property—-Personal property—-Expectancies.</p> <p>Since the Revised Statutes all expectant estates have been alienable, whether vested or contingent.</p> <p>Under a will by which the testator’s residuary estate was left to the executors in trust for the widow during her life with the direction that the testator’s entire estate or as much thereof as should remain should be divided -upon her death among all his children in equal shares, and, should any of his children die leaving issue surviving, that such issue should take the share the parent would have taken if living, a son during the lifetime of the widow has no interest that would pass to a receiver in supplementary proceedings.</p>

<p>Carriers — Carriage of baggage and passenger’s effects — In general — Limitation of liability — Limitation by statute.</p> <p>New trial — Grounds — Verdict or findings contrary to law or evidence — Excessive damages.</p> <p>The provisions of section 38 of the Public Service Commissions Law (eh. 429, Laws 190-7), prescribing a limitation of $150 upon the amount recoverable for the loss of -baggage, is not applicable to a transfer company which transports the baggage only and not the passenger or owner.</p> <p>Where the jury in an action against a transfer company for loss of plaintiff’s baggage included in the verdict the sum of $200 which had no support in the evidence but was based solely upon plaintiff’s own estimate of value of certain jewelry, the value thereof being fixed by an expert jeweler approximately at $80, a judgment in plaintiff’s favor will be reversed and a new trial ordered, unless he stipulate to deduct $120 and interest, in which event judgment will be affirmed.</p>

This is an appeal from an order made at Special Term of the City Court of the city of Hew York, vacating and setting aside the order of arrest.

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

<p>Appeal — Decision — Dismissal, abandonment or withdrawal of appeal — Matters occurring subsequent to taking of appeal as ground of dismissal— Resettlement of order appealed from.</p> <p>Discovery and inspection — Inspection of books, papers and premises — Procedure — Photographic copies.</p> <p>Where an order has been resettled, an appeal from the original order will be dismissed.</p> <p>Where, in an action to recover a bank deposit, there is an issue raised as to whether or not certain drafts paid by the defendant were forged, the plaintiff will be permitted to make photographic copies of the drafts so that the question of forgery may be determined upon the trial without undue delay or danger of surprise' to either party.</p> <p>Semble, where handwriting is photographed and copies thereof are sought to be used as evidence, the accuracy of the reproduction must be established before the photographs can be admitted in evidence or testimony based upon them can be received.</p>

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

<p>Evidence — Parol evidence — General rules — Varying or contradicting writing — Explaining ambiguities.</p> <p>Where from a lease, by the terms of which the landlord agreed to pay the expense of “keeping the main water supply, sewer, tank and gas pipes leading to and from the lofts hereby let in good condition,” and make all necessary outside repairs, it is not clear whether the parties meant to include in the “main water supply ” a pump on the premises used to drive water to a tank on the roof from which it was distributed to the leased premises, evidence of prior negotiations between the parties is admissible to determine the actual meaning of the words and expressions used in the context; and for that purpose the landlord, in an action , by the tenant to recover the cost of repairs to the pump, should be allowed to identify the unexecuted draft of a lease Which specifically provided for repairs to the pump by the landlord, to show that the parties had cut out this provision because the obligation to repair was to be imposed upon the tenant and the words of the executed lease were used with that intent.</p>

Appeal by plaintiff from a judgment of the Municipal Court of the city of Mew York, borough of Manhattan, first district, dismissing the complaint on the merits at the end of the trial.

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

<p>Eminent domain: Condemnation proceedings — Confirmation of report — Objections—Awards not based on evidence: Measure of compensation— Evidence as to damage — Price paid as evidence of value.</p> <p>The price agreed to be paid for land seventeen months before it was taken in condemnation proceedings in the absence of any evidence tending to impeach the good faith of the transaction or show that the property was sacrificed affords a fair indication of its value at the time the contract was made and should be considered in arriving at its value when taken.</p> <p>Where, in condemnation proceedings to acquire land for a school site in the city of New York, it appears that, about eighteen months prior to the vesting of the title in the city, the claimant had in good faith contracted to sell the same for $160,000, and there is no evidence that the property would have been sacrificed at such contemplated sale, the city’s objection to an award of $266,620 for a portion of the land will be sustained in the absence of proof showing a sufiieient increase in value since the contract of sale and the matter will be referred to new commissioners.</p> <p>While the knowledge and the experience of individual commissioners as to the value of property sought to be taken in condemnation proceedings may undoubtedly be applied to the evidence before them, they cannot go outside the record evidence in making their awards.</p>

<p>Election of officers — Count, canvass and return — Opening ballot boxes —'When ordered.</p> <p>Where no judicial proceedings are pending and it does not appear that any will be brought, the court is without power to grant an order under section 374 of the Election Law to open ballot boxes containing ballots not void or protested, upon the application of parties who allowed the time within which they might have applied for a mandamus under section 381 to expire.</p>

<p>Habeas Cobptjs proceedings.</p>

<p>Civil service — Preference of veterans and firemen: Construction and operation of statute — Statute not applicable to appointment for definite term: To what officers applicable — Superintendent of streets in Binghamton as deputy of commissioner of public works.</p> <p>The purpose of section 22 of the Civil Service Law, which provides that a veteran shall not he removed except for ineompetency or misconduct shown after a hearing upon due notice of charges, was to prevent the summary removal of a veteran who was holding under an appointment for an indefinite term.</p> <p>Where relator, a veteran of the Civil War, was appointed in 1903 superintendent of streets and city property in the city of Binghamton to fill an unexpired term ending in 1905 and held the position continuously until January 1, 1908, when he was appointed superintendent of streets under the amended charter for a term of two years from that date and accepted such appointment, liis right to hold the latter position expired with the term for which he was appointed.</p> <p>The provision of section 22 of the Civil Service Law, that nothing therein should be construed to apply to the position of deputy of any official or department, did apply to the position of superintendent of streets, as, under the provision of the charter, such superintendent is in fact a deputy of the commissioner of public works.</p>

<p>Municipal corporations — Contracts — Sufficiency of advertising for proposals — Precluding competition.</p> <p>Where the board of estimate and apportionment of the city of New York in awarding contracts for public work imposes only such conditions as permit a fair and reasonable opportunity for competition, the counts cannot interfere.</p> <p>Where the local authorities, on account of the steep grades of the Fingerboard road in the borough of Richmond, determined that it needed a rough pavement and duly advertised for sealed bids for a contract to pave a portion of said road with bitulithic pavement or with asphalt blocks designedly omitting smooth pavements and, in two actions, one by an unsuccessful bidder and the other by taxpayers, to restrain the awarding of the contract, it appeal's that there were nine bids, three for the bitulithic pavement in which the figures ranged from $20,000 to $21,000, five for the asphalt block pavement, in which the figures varied from $18,000 to $28,000, and a sixth bid of $14,621.30 for the latter pavement which, compared with the bid of plaintiff in the first action, showed a difference in favor of the city of nearly $4,000, a motion to continue injunctions pendente lite will be denied in each case and the injunctions vacated, as the advertisement presented a fair and reasonable opportunity for competition.</p> <p>Since the intention of the municipal authorities „as to the acceptance or rejection of particular bids bore upon the propriety of the transaction, and a question was raised in respect thereto by the plaintiff, such intention was properly stated by the municipal officers in their answering affidavits and considered by the court.</p>

<p>Injunction: Who and what may be enjoined — Interference with business— Boycott: Preliminary injunction — Grounds and matters</p> <p>considered — Grounds for refusing — Full denial of grounds of motion.</p> <p>The rule that when all the equities of a complaint are denied in the answer an injunction pendente lite will not issue only applies when the litigants claim adversely in respect to property or the right to do some act in connection therewith.</p> <p>A trade union has no right to call a strike in the shops of other employers of labor for no other reason than because they deal with the plaintiffs, and the plaintiffs when so boycotted may have an injunction to restrain the members of such union from causing other manufacturers by threats of strikes to cease manufacturing goods for the plaintiffs.</p>

<p>Motion to overrule answer as frivolous and for judgment on complaint.</p>

<p>Pleadings: Amendments—Amendment by leave of court — Conditions on granting leave to amend — On amendment of answer where nature of defense is not changed: Variance between allegations in pleadings and proof — Subject-matter in general — Payment.</p> <p>In an action by an administrator for money loaned to the defendant by the plaintiff’s intestate, a plea of payment to the plaintiff will not permit proof of payment to plaintiff’s intestate; and, on a motion by defendant to amend his answer, after the withdrawal of a juror upon the trial, at the defendant’s request, xo enable him to make such motion, the present rule requires the imposition of full taxable costs to the time of motion as a condition of granting it.</p>

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

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

<p>Associations: Organization and status — Formation of unincorporated assocation; Associations as partnerships: Powers and rights of association— Property rights — Manner of administering control: Membership—Admission of members — Membership not transferable— Eights of members; Eights in property of association — Joint tenants and not tenants in common.</p> <p>Joint stock companies — Nature in general — Distinction between joint stock companies and other voluntary associations.</p> <p>Where farmers residing in the same neighborhood constructed a telephone line to their respective residences at their joint expense, on their own premises, connecting with the lines of an incorporated telephone company; and where one of them afterwards moved away and sold his goods at auction and at the same time sold all his right, title and interest in and to the telephone line in question, which was brought by one living where an extension of the line across his lands for half a mile was required to enable him to use it; and where the other owners of the line resolved that it should not he extended in any direction and so notified the purchase!', but he nevertheless built the extension and connected with the line upon the premises of one of the owners, and the owners afterwards cut his line twice, successively, and he brought an action to restrain them from further interference with it, held:</p> <p>The several owners were not partners, nor did they constitute a joint stock association, but they constituted a “ voluntary association.”</p> <p>Membership in such an association is not transferable, at least, without the consent of the association itself; and a court of equity has no jurisdiction to compel the admission of a person not regularly elected to such an association, even though the arbitrary rejection of the candidate may prejudice his material interests.</p> <p>Tlie property of such an association is not held by the members as tenants in common, but is held by them as joint tenants; and they have, consequently, the right to manage, control and dispose of it at their pleasure, subject, however, to the provisions and stipulations of the contract under which it is held as contained in the constitution, by-laws or other rules and regulations adopted by the association.</p> <p>In the absence of a constitution, rules or by-laws, at any meeting, duly held, such an association has the right to adopt such rules as it sees fit, except that it cannot do an illegal act or adopt any measure subversive of the objects for which it was formed.</p> <p>The complaint should be dismissed.</p>

<p>Bailment — Gratuitous bailments — Liability of bailee for nonfeasance.</p> <p>The rule that a gratuitous bailee is not liable for mere nonfeasance is not applicable when the subject of the bailment has been actually delivered to and accepted by Mm.</p>

<p>Demubbeb to a separate defense.</p>

<p>Cause of action — Character of cause of action — Ex contractu or ex delicto.</p> <p>Contracts — Interpretation of contract — Particular agreements —Agreements to assume indebtedness and liabilities of to to third persons — Meaning of obligations.</p> <p>Where defendants set up by way of counterclaim that they placed with the firm of which plaintiff was a member a quantity of fruit “to be sold on commission, with instructions not-to export any of it under any circumstances; that said firm exported the whole of said fruit contrary to said instructions without defendants’ knowledge, whereby, defendants were damaged upwards of $1,000; that plaintiff’s said firm was afterwards dissolved and plaintiff succeeded to its assets and assumed and agreed to pay and become liable for all of its obligations prior to the commencement of the action,” held:</p> <p>1. The counterclaim states a cause of action on contract in favor of tilie defendants against plaintiff.</p> <p>2. Although the word “ obligation,” when given the meaning now commonly assigned to it in law, implies no more than a cause of action evidenced by a writing, it is fair to assume that, in the pleading under consideration, the defendants used the word in a wider sense.</p> <p>The same propositions were held as to like allegations constituting a similar counterclaim for damages for selling goods held in cold storage before the time fixed by the instructions of defendants’ firm.</p>

<p>Cause of action — Character of cause of action — Legal or equitable.</p> <p>Partnership — Dissolution, settlement and accounting—Effect of dissolution— As to surviving partner — Actions by and against — Parties — Representatives of deceased partner — Necessity for alleging insolvency of surviving partner.</p> <p>A complaint alleging that the attorneys for the plaintiff in an action against her husband for a divorce received from him for her support and maintenance and expended moneys in her behalf, during a period of years, and have not accounted to her nor rendered a bill for their services sufficiently shows that- the attorneys received such moneys in a fiduciary capacity and that the plaintiff is entitled to maintain an equitable action for an accounting.</p> <p>In such an action against the personal representatives of the two deceased members of the law firm who represented the plaintiff in the divorce suit and the surviving member of the firm, plaintiff need not allege the insolvency of the surviving partner br that she has exhausted her remedy against him.-</p>

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

Motion by plaintiff for a new trial upon exceptions after dismissal of complaint as against defendant Buggeln, and verdict for nominal damages against defendant institute, upon instructions that substantial damages could not be awarded.

<p>Divorce — Foreign divorces and allowances: Jurisdiction of foreign court — Service on nonresident defendant by publication or mail: Fraud in acquiring jurisdiction.</p> <p>A decree of divorce on the ground of desertion, recovered in another State in which the marriage of the parties took place and in which was their matrimonial domicile until the husband’s desertion, where "the defendant did not appear and service of process was only made upon him by publication in a newspaper, fixes the matrimonial status of both the parties to the action, not only in the jurisdiction in which it was rendered but in all jurisdictions.</p> <p>But where the mailing of a copy of the summons to the defendant was dispensed with on the plaintiff’s affidavit that defendant had told her he was going to South America but had not given her any more definite information; and where it appears by her testimony on the trial of an action against her to annul her subsequent marriage, on the ground tlia.t she had a living husband at the time it was solemnized, that her former husband told her he was going to Bio Janeiro, Brazil, the judgment may be attacked for the fraud of the wife in making the affidavit on which service of the process by publication was founded, by the plaintiff in the subsequent action; and as to him such judgment is not evidence to establish the dissolution of the former marriage.</p>

<p>Deeds — Lands, tenements and hereditaments granted — Deed with reference to map showing way — Effect as creating easement.</p> <p>Injunction—Who and what may he enjoined — Interference with property rights by private persons — Interference with right of way.</p> <p>Where a person buys a lot, designated by reference to a map that shows a neighboring street, giving convenient access to a highway shown on the same map on one side of the lot, under such circumstances as justifies the purchaser in believing that the map is a correct representation of the locality and the streets laid down thereon, it is plaintiff’s right to have the conditions as to the streets by which he obtains access to such highway remain the same as when he purchased his lot; and, as against another purchaser of lands on said map from the same owner, he has the right to an injunction to prevent the latter purchaser from building an erection upon any portion of such street in such a manner as to deprive him of access through the same to said highway.</p>

<p>Discovery and inspection — Examination of party before trial — Right to remedy — To establish cause of action.</p> <p>Husband and wife—Actions — Evidence — Presumptions and burden of proof in actions for necessaries.</p> <p>In an action for necessaries, while proof of their delivery may generally make out a sufficient case for plaintiff, this does not seem to be the rule where the parties are living separate and apart, and in such a case the burden is on the plaintiff to show that the defendant did not suitably provide for his wife.</p> <p>In such a case, the plaintiff may, therefore, examine the defendant before trial to prove that the articles furnished were necessaries and that the defendant did not supply his wife with such articles nor with money to buy them.</p>

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

<p>Action in equity. The opinion states the case.</p>

<p>Interest — Rate — Terms of contract.</p> <p>Where a mortgage provides for the payment of the principal on a given date with interest thereon at a specified rate less than the legal rate “ until the whole of said principal sum is paid ” the contract governs the rate of interest until payment of the principal or until the contract is merged in a judgment; and the interest on the principal sum which has matured is not to he computed as damages according to the rate provided by law.</p>

<p>Action against a guarantor of a lease.</p>

<p>Action to enforce a contractor’s lien. The opinion states the case.</p>

<p>Estoppel — Equitable estoppel and estoppel in pais — Facts creating estoppels — Renunciation of right or disclaimer other than by pleadings.</p> <p>Where a school in New York city in which plaintiff’s assignor was a teacher became a school of the third order, to the. principalship of which she was not eligible as she had never held other than a teacher’s license, and by an instrument in .writing she agreed with the board of education that, in consideration of being allowed to remain in charge of the school, she would waive all claim to rank and pay as principal of a school of the third order and further agreed to accept rank and pay as a principal of the school of the fourth order without regard to the number of classes the school might have either then or in the future, and the board acted upon the agreement, the plaintiff cannot recover salary claimed to be due her as principal of a school of the third order.</p>

Action to restrain the officials of a village from paying bhe amount claimed by one of the defendants for services rendered for the village under a contract with its officers.

<p>Action for partition.</p>

<p>Demurrer to complaint in an action to restrain the disposition of certain real estate belonging to a religious corporation.</p>

<p>Motion to dismiss complaint in an action to restrain the use of plaintiff’s picture. The opinion states the case.</p>

<p>Constitutional law—Provisions relating to courts and judicial officers — Enlarging or restricting jurisdiction — Of inferior local courts. Courts — Powers — Marine and City Courts — City Court of Binghamton.</p> <p>The territorial jurisdiction of the inferior local courts of the State, created pursuant to the Constitution as it existed in -1846 and as amended in 1869, is confined within the limits of the subdivision of the State for which the, particular court was created.</p> <p>Under the provisions of section 18 of article 6 of the Constitution of 1894, relating to the establishment of inferior local courts, the Legislature is not authorized or empowered to confer upon such a court any greater territorial jurisdiction than could have been conferred under section 19 of article 6 of the Constitution as it existed in 1869.</p> <p>The City Court of Binghamton is an inferior local court and has no jurisdiction over the persons of defendants who, in an action brought therein, were, served with the summons outside of the city of "Binghamton though within the county of Broome.</p> <p>The amendment (L. 1902, eh. 532) to section 8 of chapter 537 of the Laws of 1899, the act creating the City Court of Binghamton, and section 349 of the revised charter of said city (L. 1907. eh. 751), by which the Legislature attempted to extend the territorial jurisdiction of said City Court beyond the limits' of said city, are unconstitutional and void and said court cannot obtain jurisdiction over the persons of defendants not served within the city limits.</p>

<p>Animals — Impounding and other summary remedies — Penalties — Defenses — Intention..</p> <p>Penalties — Actions for penalties ■— Defenses — Intention.</p> <p>In an action brought under the Agricultural Law to recover a penalty against defendant for permitting a dog alleged to be owned and harbored by him to run at large and unmuzzled in the streets of a city during the pendency of a quarantine order Which had been issued by the Commissioner of Agriculture of the State, it is no defense that defendant did not intend to disobey the notice published by the commissioner under section 91 of said law, as, under section 7 of said law, the doing of anything prohibited by the statute or the omission to do anything directed to be done thereby was evidence of a violation thereof, and the intent of defendant charged with a violation thereof was immaterial.</p> <p>Where although defendant claimed that he had muzzled the dog, which was accompanying his wife, with a safe and suitable muzzle on the morning of the day in question, hut that it came off without his knowledge and without any intent on his part to disobey the provisions of the notice issued and published by the Commissioner of Agriculture, and the jury find under instruction of the court allowing them so to do that defendant did all that a reasonable man could be expected to do in secluding and muzzling the dog, a judgment in defendant’s favor will be reversed and a new trial ordered on the ground that the intent of defendant was immaterial.</p>

<p>Appeal from a judgment in justice’s court in favor of plaintiff.</p>

Appeal by the plaintiffs from a judgment of the City Court of the city of Hew York dismissing the complaint at the close of the plaintiffs’ case, and from an order denying the motion of the plaintiffs to set aside the dismissal and for a new trial.

<p>Appearance — Effect of appearance — Effect as waiver.</p> <p>Evidence — Parol evidence—The general rule and its applications — Admissibility of parol evidence to vary or contradict written instruments in general — Explaining ambiguities.</p> <p>Execution of written instruments — Formal requisites — Execution in representative capacity and liabilities dependent on manner of such execution—Execution by one not named as party in body of instrument.</p> <p>Judgment — Amendment and correction in same court — What errors cr defects may be corrected — Clerical mistakes.</p> <p>Municipal courts — Procedure — Judgments — Error of- clerk.</p> <p>Trial — Eeception and exclusion of evidence — Introduction, offer and order of proof — Offer by party of evidence previously excluded on his objection.</p> <p>•A person who is not named in the body of an instrument but signs his name thereto 'before delivery is to be held liable as a party to the contract.</p> <p>Where an offer and acceptance are signed, respectively, by the parties named in the -body thereof and a third party strikes- out the word “ witness ” written in at the place where . a witness should sign and writes underneath it “ O. K.” to which he subscribes his name, the doubt or ambiguity that arises on the face " of the instrument as to the capacity in which he intended to bind himself, if at all, can be resolved by parol evidence as to the surrounding circumstances or conversations had at or prior to the time of fixing his name.</p> <p>But where, in an action against such third person as a party to the contract, the plaintiff’s counsel offers to show the conversation at the time the defendant wrote O. K. and signed Ms name, but the evidence is excluded on the ground it tends to vary the written instrument, the defendant may not afterwards introduce similar evidence for the purpose of showing the intention with which his name was subscribed.</p> <p>An error in defendant’s name in a summons in the Municipal Court of the city of New York is waived by the appearance of the defendant without objection.</p> <p>Where a judgment of the Municipal Court of the city of New York is correctly rendered, it is not invalidated by an error of the clerk in 'the defendant’s name in entering the judgment, "but the summons may be corrected.</p>

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

Appeal by plaintiff “ from so much and such part of the judgment * * * as denies the motion of the plaintiff that the court direct the issuance of an execution against the person of the defendant in case an execution against the property should be returned unsatisfied.”

Appeal by the plaintiff from an order of the City Court of the city of ¡New York, amending a judgment dismissing the complaint by adding the words “ upon the merits.” The trial took place before a judge and a jury.

Appeal by the defendant from an interlocutory judgment of the City Court of the city of Hew York overruling a demurrer to the complaint.

<p>Appeal from a judgment in favor of plaintiff, rendered in the Oity 'Court of the city of Hew York.</p>

<p>Insurance: Adjustment of loss — Necessity of arbitration — Time for request — Actions on policies — Questions for jury — Reasonableness of delay and good faith in demanding appraisal.</p> <p>Questions of law and fact — Reasonable diligence; Good faith.</p> <p>Where a loss under a policy of fire insurance is payable within sixty days after the proof of loss is filed, unless an appraisal be had in the meantime in which event the loss is payable within sixty days after the determination of the appraisers, the insurer must demand an appraisal within a reasonable time according to the facts of the particular case and has no absolute right to demand the appraisal on the sixtieth day.</p> <p>Where the facts are undisputed, the question of what is a reasonable time is one for the court.</p> <p>Whether a demand for an appraisal under such a policy was made in good faith is a question for the jury, since it bears on the question of the insurer’s waiver of an appraisal or the release of the insured from any obligation to enter upon one.</p>

Appeal by the defendant from an interlocutory judgment of the City Court of the city of New York, overruling a demurrer to the amended complaint upon the ground of insufficiency.

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

Atpeal by the landlord from a final order in summary proceeding's of the Municipal Court of the city of New York, third district, borough of Manhattan, in favor of the tenants.

Appeal by 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.

Appeal'by the defendants from an order of the Municipal Court of the city of Mew York, second district, borough of Manhattan, vacating’ an order which set aside an order opening the default of defendants.

<p>Damages: Limitation of liability to natural and proximate consequences — Proximate or remote consequences of breach of contract — Statutory penalties recovered: Particular contracts and relations — Contracts for sale or purchase of goods — Breach by seller — Breach of warranty — Statutory penalties and costs.</p> <p>Where defendant, a wholesaler, sold to plaintiff, a retailer, adulterated vinegar in bottles labeled “ Pure Cider Vinegar ” and the State recovered a penalty against plaintiff for a violation of the Pure Food Law in selling one of said bottles, the wholesaler is liable to plaintiff for the amount of the recovery against him as damages within the contemplation of the parties.</p> <p>Plaintiff having notified defendant and given him an opportunity to defend the action for the penalty is also entitled to recover his costs and counsel fees in defending said action.</p>

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

<p>Negligence — Actions — Evidence — Presumptions and burden oi proof — Presumption of negligence from happening of accident — Accident not giving rise to presumption of negligence.</p> <p>Where plaintiffs automobile, lawfully standing at rest on the side of a street, was struck by a truck belonging to one of the defendants, which while being driven slowly and carefully was struck by a street railway car and as a result of the collision the automobile was damaged, the plaintiff, in an action to recover for such damage, has the burden of showing by a fair preponderance of evidence that the accident was due to the negligence of the owner of the truck.</p> <p>In such a case, the rule of res ipsa loquitur is not applicable; but, assuming it is, it will not operate to shift the burden of proof upon the truck owner to show that the proximate cause of the accident was the negligence of the defendants operating the railway, the owner of the truck being only bound to overcome any presumption of negligence on its part which, in the absence of explanation, might be inferred from the happening of the accident.</p>

Appeal by the plaintiff from an order of the City Court of the city of ¡New York, setting asidg a verdict rendered in favor of the plaintiff by direction of the court and ordering a new trial.

Appeal by the plaintiff from a judgment of the City Court of the city of Hew York, dismissing the complaint at the end of the plaintiff’s case, as against the defendants Stern Bros.

<p>Cause of action — Splitting cause of action.</p> <p>Replevin—Liability on undertaking — Extent of liability and breach or fulfillment of conditions.</p> <p>An undertaking in replevin given under section 99 of the Municipal Court Act covers payment to defendant only of “ any sum which the judgment awards to him against the plaintiff,” and counsel fees cannot be recovered in an action on the undertaking.</p> <p>Where the defendant assigned to plaintiff all his interest in the undertaking together with the right to sue for the recovery of dam ■ ages sustained thereby to the extent of $250, the cause of action upon the undertaking cannot be split, nor any' recovery had in an action thereon unless all claimants are made parties thereto.</p>

<p>Principal and agent — Rights and liabilities of principal as to third person — Authority of agent — Powers involved in authority to sell — Authority to warrant.</p> <p>A salesman, authorized to sell goods at the store of his employer by showing the articles to prospective purchasers, has no implied authority to give a warranty binding upon his employers, unless it appears that it is usual in the market on a sale of that class of goods to give a warranty.</p>

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

<p>Discontinuance — Eight to discontinue — Before submission to jury. Municipal Courts — Procedure — Discontinuance — Before submission.</p> <p>At the close of the rebuttal testimony, in an action on a promissory note against the maker, there being no entry in the minutes that both sides rested or that plaintiff finally rested, a motion for a voluntary nonsuit is proper, as the case has not been finally submitted ” within the meaning of section 248 of the Municipal Court Act.</p> <p>A judgment for defendant, rendered after plaintiff’s motion for a nonsuit had been denied on the theory that the ease had been submitted within the meaning of section 248 of the Municipal Court Act, is erroneous.</p>

<p>Assignments — Interpretation and effect — Priorities.</p> <p>Money received — In general — By subsequent assignee belonging to prior assignee.</p> <p>An assignment of a part of the compensation due a State officer for services is subject to the rights acquired under an earlier assignment affecting the same compensation.</p> <p>Where a State officer, after having assigned to plaintiff as collateral for loans $1,500 of $2,000 compensation due him from the State for professional services as a lawyer, assigned $1,000 of said compensation to defendant, and the State Comptroller with notice of both assignments pays to each assignee $1,000, the plaintiff may maintain an action for money had and received to recover $500 paid the defendant.</p> <p>Where title is derived from a common source and one title is superior to the other, there is sufficient privity between the parties to support an action on an implied contract.</p> <p>Bijur, J., dissented.</p>

<p>Damages — Measure for torts — Liability for conversion — Time and place of estimating value.</p> <p>Values—Cost price.</p> <p>Where, - in an action to recover the value of the contents of two casks of liquor stored in bond with a warehouse company, the plaintiff testifies as to the market value of the liquor, it-is competent to show on cross-examination the price paid hy it for the same kind of liquor three and one-half years previous to the trial of the action; and the exclusion of such testimony is error, the cost price being some evidence of value, though not conclusive as against the plaintiff.</p> <p>Plaintiff was entitled to have the liquor returned to it in- the condition in which it was stored, and a conversion being" proven it was entitled to recover the market value thereof in that condition and not the value after payment of duty, bottling, labeling and packing in cases.</p>

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

<p>Common schools — Officers — School commissioners — Mature of office.</p> <p>Constitutional law — Deprivation of life, liberty or property without due process of law — What is liberty or property.</p> <p>Officers — Eligibility, qualification, accession and tenure — Resignation, removal, suspension or forfeiture — Power to remove.</p> <p>The office of school commissioner is not property in the sense that removal therefrom without any hearing is a taking of property without due process of law.</p> <p>The Legislature has the right to authorize an officer or board to remove an appointive or elective officer without notice or hearing.</p> <p>School commissioners, though elected by the people of their districts, are not local officers nor agents of the municipalities from v/hich they are elected, hut they are part of a State system, their salaries are paid by the State and they are subject to the control of the Commissioner of Education.</p> <p>The power given by section 338 of the Educational Law to the Commissioner of Education to remove a school commissioner for wilful violation or neglect of duty may be exercised without notice to the school commissioner or an opportunity to defend.</p> <p>In determining whether a school commissioner has been guilty of wilful violation or neglect of duty, the Commissioner of Education may consider any official records on file in the Educational Department of the State.</p>

<p>Certiorari proceeding.</p>

<p>Taxes : Equalization, correction and review of assessments — Correction and review — Certiorari — Review — Evidence in general: Taxation. of special franchises — Assessment — Appraisal1— Present value; Future profitable operation. ■</p> <p>Where, in a proceeding by certiorari to review the assessment by the State Tax Commissioners of a special franchise for the purpose of taxation, the franchise is a part of the right to construct and operate a tunnel which has never in fact been operated and for that reason it is impossible to make use of the net earnings rule in determining its value, the court may resort for that purpose to proof of the physical condition of the tunnel, its relation to transportation lines and to other similar tunnels in operation, the population-of contiguous territory, the length and cost of the tunnel, the offerings of the relators to sell it and the facts bearing upon its probable earning capacity.</p> <p>In assessing such franchise, prospects of future profitable operation unless such as add to its present value are not to be considered.</p> <p>When such franchise is not and cannot be of present value, nothing should be added therefor to the value of the taxable property connected therewith.</p>

<p>Certiorari to review assessment of special franchise.</p>

<p>Taxes — Equalization, correction and review of assessments — Correction and review — Certiorari — Review — Presumptions and burden of proof; Evidence in general — Net earnings rule; Value of corporate property inferred from price of stock and bonds; Taxation of special franchises — Assessment — Equalization with rate of assessment in tax district.</p> <p>Values — Evidence of value of land — Net earnings rule — Reasonable rate of return.</p> <p>Where the return to a petition to review an assessment of the special franchise of a water company in the borough of Queens, attacked for overvaluation and inequality, does not disclose the rule or method made use of by the State Board of Tax Commissioners, the issue as to overvaluation is one 'Of fact to be determined from evidence presented.</p> <p>In estimating net earnings, a reasonable amount should be deducted from the gross earnings to make good depreciation of depreciable property; and this amount should include not only physical depreciation, figured with respect to the life of such depreciable property, but also functional depreciation or obsolescence.</p> <p>In estimating net earnings, rentals from street hydrants repudiated by the city should not be deducted from the gross earnings of the petitioner in the absence of evidence that the city is not liable therefor.</p> <p>An item of a thousand dollars for uncollectible accounts, being less than one per cent, of the whole, may be allowed as a deduction.</p> <p>Aa item of eighteen hundred dollars for farm expenses cannot be allowed as expenses of operating a plant for the distribution of water.</p> <p>The net earnings of a contract for pumping water delivered to the borough of Brooklyn which does not pass through the relator’s street mains are properly included in the computation of the value of the franchise, as the water is a source, of revenue from the petitioner’s invested capital, a reasonable return upon which is to he allowed in computing net earnings.</p> <p>Six per cent, is a reasonable rate of return upon the tangible property of a water supply company in Queens county used in the prosecution of its business.</p> <p>Where the court is unable to discover from the evidence how much of the land owned by the petitioner is reasonably necessary for its present purposes in supplying water and what its value is, the court cannot determine, by the application of the net earnings rule, that the value of the special franchise is less than the amount at which it was assessed by the State Board of Tax Commissioners.</p> <p>The court, being unable to determine the value of the special franchise by the application of the net earnings rule, may estimate the same on the basis of the current prices of the stock and bonds of the company.</p> <p>A corporation in the borough of Queens is entitled to have its special franchise assessed at such proportion of its value as that at which the remainder of the real and personal property in said borough is assessed for the purposes of taxation.</p>

<p>Application to confirm the report of Charles H. Young, referee, reducing the assessment- for 1907 on the special franchise of the relator in the town of Mount Pleasant-, Westchester county, IST. Y., from $67,000 t-o $40,000, upon the ground of inequality of assessment, the referee holding that the defendants assessed the special franchise at what they deemed was full value and that other real estate in the town of Mount Pleasant was assessed for the year 1907 at not higher than fifty-five per cent, of its actual value.</p>

<p>Review of assessment of a special franchise. The opinion states the case.</p>

<p>This proceeding was brought for the opening of a public street running north and south from One Hundred and Seventy-eighth street to beyond One Hundred and Eighty-first street, west of Fort Washington avenue. The portion of it between One Hundred and Eightieth and One Hundred and Eighty-first streets embraces and laps over part of an old private road which formerly ran from the dock at the foot of One Hundred and Eighty-first street east, then south, and then again east to Fort Washington avenue. Other parts of this old road had previously been taken in condemnation and now constitute, respectively, portions of One Hundred and Eightieth and of One Hundred and Eighty-first streets. This old road connected with another old road which was made a public street some years ago under the name of Northern avenue. Certain property owners fronting on the latter avenue, but at some distance from the proposed improvement, appeared in this proceeding and claimed substantial awards, on the ground that they had title from the common (ancient) owner by deeds which contained express grants of the easements of access and right of way over the whole of the old road, a part of which was now being condemned. The city claimed that the easements did exist, but that their owners were entitled to only nominal awards; the fee owner claiming that the easements had no existence and had been extinguished by the taking of a part of the old road in the One Hundred and Eighty-first street proceeding in which these parties received an award; whereas the non-abutting easement owner claimed that these easements still existed, with reference to the land now taken, that they constituted “ property ” and that a substantial award should be made for them. The commissioners made a specific finding, that the easements of the non-abutting claimants did in fact still exist, and that these easements diminished the value of the lane “ by a sum representing the value of said easements.” They declined, however, to make an award for them; and the easement owners oppose confirmation of the report in that respect.</p>

<p>Motion to confirm report of commissioners.</p>

Motion by plaintiffs to confirm report of commissioners to appraise damages to claimants’ property by reason of change of grade of street. Motion by defendants to set aside report of commissioners by reason of improper conduct of claimant Charles F. J ohns.

<p>Intoxicating liquors — Revocation or forfeiture of license — Grounds for forfeiting license — Knowledge or intent of licensee.</p> <p>The proprietor of a place where intoxicating liquors are sold by accepting a license obliges Himself to see that the place does not become disorderly; and the license must be revoked when disorderly or illegal practices are carried on there, though personal knowledge on the part of the proprietor be not shown.</p>

<p>Application for a peremptory writ of mandamus.</p>

<p>Application on order to show cause for a peremptory writ of mandamus to compel Frederick C. Stevens, Superintendent of Public Works, to consider the bid of the relator to perform certain work on the canals of the State, and award the contract therefor to the relator.</p> <p>The Superintendent of Public Works duly advertised for proposals under certain terms and-conditions, for the improvement of the Erie, Oswego and Champlain canals. The relator and the defendant D’Olier Engineering Company submitted -proposals therefor within the time limited, which proposals were submitted upon forms prepared by the Superintendent of Public Works, which contained a reference to the statute, information for proposers, the terms and conditions upon which proposals would be received, specifications for the work, -and other data, besides a ‘blank for the itemized proposal itself.</p> <p>The relator failed as a fact to formally comply with several of the conditions for the receipt of proposals.</p> <p>The Superintendent of Public Works, upon opening the bids on April 7, 1910, refused to read the proposal of the relator, which was about $4,000 in amount less than that of the. defendant D’Olier Engineering Company, stating at the time as his ground for refusal that the certified check submitted by the relator was not payable to the Superintendent of Public Works, but to the State Treasurer, in violation of the law and the conditions of the proposal. The Superintendent notified the rélator by letter of this refusal and the reason and, on April -9, 1910, awarded the contract to the D’Olier Engineering Company. Upon receipt of notice of this refusal the relator verbally protested against the awarding of the contract. Later, the relator filed a formal protest which misdescribed the name of the relator, and gave the name of another company, and sent to the Superintendent of Public Works a new check, drawn payable to the Superintendent of Public Works, which he. refused to receive. The contract previously awarded to the D’Olier Engineering Company was executed by that company on the 12th of April, 1910. On the 13th of April, 1910, relator’s corrected formal protest was received by the Superintendent, and on the same day the contract was approved by the Attorney-General. The successful contractor has not yet performed any work except preliminary examination of the work prior to actual execution.</p> <p>The relator obtained an order to show cause from Mr. Justice Betts, staying both the Superintendent of Public Works and the D’Olier Engineering Company, and requiring the defendants to show cause at Special Term of this court, among other things, why the Superintendent of Public Works should not entertain and consider the bid of the relator and award the contract to the relator, and why a peremptory writ of mandamus should not issue in the premises, which order was served April 18, 1910.</p> <p>Upon .the hearing of this application at the Special Term held April 23, 1910, the defendants set up additional causes of refusal to entertain the bid of the relator.</p>

<p>Certiorari — When the writ lies — Exercise of judicial functions.</p> <p>The determination of the police commissioner of the city of New York to refuse to license a theatre is not a judicial determination and cannot he reviewed by certiorari.</p>

<p>Application for peremptory writ of mandamus.</p>

<p>Summary proceeding. The opinion states the case.</p>

<p>Motion to limit examination of a witness in supplementary proceedings.</p>

<p>Attorney and client — The vocation — Privileges, disabilities and liabilities to third persons — Liability for promises or representations; Remedies — Contempt.</p> <p>Contempt — Persons liable — Person not party — Attorney.</p> <p>Where the examination of a judgment debtor in supplementary proceedings is postponed at the request of his attorney to enable him to move to open his default, and on the attorney’s statement that he would deposit the amount of the judgment with the clerk; and where an order was afterward granted on such a motion and on condition of making such a deposit, but the deposit was not made, the attorney for the judgment debtor cannot be punished for contempt for falsely stating that he would make such a deposit.</p>

Motion by the defendant Grand Trunk Western Railway Company to vacate an order directing service of summons by the publication thereof, and also to set aside the service of the summons without the State.

Three motions: (1) Certificate by referee .asking questions as-to his duties in examination under section 872, Code of Civil Procedure. (2) Motion by plaintiff to compel answers to certain questions. (3) Motion by defendant for reference to hear and determine.

<p>Civil service — In general — Certification of eligibles.</p> <p>Constitutional law — Privileges and immunities of citizens and equal protection of the laws — Discrimination against particular classes of persons.</p> <p>A teacher in the public schools of the city of New York who held a “ Grade A” license on the 1st day of February, 1898, is entitled to appointment or promotion to any position to which she was then eligible by the possession of such license or certificate, which includes any position in “ Grade 8-B ” afterward established; and the board of education may not place upon an eligible list with her other persons as eligible for promotion who, by examinations and other qualifications, have attained a rating which has caused the board of education to include them also in such list; and the board, in adding to such list the names of persons who had not held “ Grade A” licenses, violated the provisions of section 1101 of the Greater New York Charter and acted in derogation of the rights of a teacher who then held a “ Grade A” license.</p> <p>Such a holder of a “ Grade A” license is prejudiced by adding to the list of persons eligible for promotion the names of persons who had not held such licenses, or by the promotion of one not the holder of such a license.</p> <p>Section 1101 of the Greater New York Charter is not unconstitutional in arbitrarily discriminating between the holders of “ Grade A” licenses issued prior to February 1, 1898, and holders of such licenses issued between February 1, 1898, and April 22, 1901.'</p>

<p>Abutting owners — Rights and liabilities in general — Extent of abutting owners’ rights in street.</p> <p>Contracts — Performance of contracts — Waiver of breach — What constitutes waiver.</p> <p>Injunction — Who and what may be enjoined — Interference with property rights by persons — Interference with possession and use of premises — Acts of licensor or licensee.</p> <p>Licenses — Power to grant.</p> <p>Where the proprietor of a café agrees with a motor cab company that it shall have the exclusive right to maintain a general carriage service station in the street in front of its premises in the city of New York for one year, and upon its consent a license is issued by the municipal authorities to the cab company accordingly and thereafter, during the period of the agreement, without any substantial failure to perform on the part of the cab company, the proprietor of the café attempts to revoke the privilege and have the municipal license revoked and grant the privilege to another, the cab company may maintain an action to enjoin the licensor and its subsequent licensee from interfering with its rights under the agreement, and in such an action may have a preliminary injunction.</p> <p>By the request of the proprietor of the café to the municipal authorities to issue a license to the cab company, it waived any previous failure on the part of the company to perform its agreement.</p>

<p>Motion for a temporary injunction.</p>

<p>Motion for bill of particulars.</p>

<p>Motion to amend complaint. The opinion states the case.</p>

<p>Cocts — Amount — Statutory allowances at various stages of proceedings— Trial fees — What constitutes a trial — Motion for judgment on the pleadings.</p> <p>Where a demurrer to a complaint is disposed of on motion for judgment on the pleadings, under section 547 of the Code of Civil Procedure, costs after notice of trial and a trial fee are not taxable.</p>

<p>Motion for judgment- upon demurrer to complaint.</p>

<p>Judgment — Rendition — At particular stages of the action — Judgment on the pleadings.— Motion for judgment — Procedure.</p> <p>Motions and orders — Orders — When proper — Motion for judgment on the pleadings (Code Civ. Pro., § 976).</p> <p>Pleading — Motions relating to pleadings — Motion for judgment on the pleadings (Code Civ. Pro., § 976).</p> <p>The proper practice upon overruling a demurrer upon a trial as a contested motion under section 976 of the Code of Civil Procedure is to enter an order instead of signing a decision containing a direction to enter an interlocutory judgment.</p>

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

<p>Motior to -have a referee’s report sent back for further findings. The opinion states the case.</p>

<p>Motion to set aside a verdict and for a new trial.</p>

<p>Motion to set aside judgment.</p>

<p>Judgment — Opening or vacating on motion — In general: Discretion of court: Meritorious cause of action or defense as condition.</p> <p>Where, in an action upon a judgment recovered upon defendant’s default in another State, judgment is granted in favor of the plaintiff on the pleadings, the latter judgment will not be vacated, after the time to appeal therefrom has expired, because the court in the foreign State, after the time to appeal from the foreign judgment had expired, upon allegations of fraud, opened the defendant’s default. In such a case the defendant’s remedy is to move to open the judgment in this State upon showing a good defense upon the merits, a good excuse for having suffered default in the foreign State and a good excuse for not having set up his present claim before the judgment was entered.</p>

<p>Foreclosure of mortgages on lands — Foreclosure by action and sale: Sale — Setting aside sale — Proceedings and order: Distribution of proceeds and surplus — Distribution of proceeds in general — On resale after embezzlement of proceeds of former sale by referee.</p> <p>Where, prior to the granting of a motion made by the purchaser at a sale of mortgaged premises in foreclosure to be relieved from her purchase because of defective title, the referee who made the sale embezzled the money deposited by the purchaser, the court will order that she be paid said amount with interest, costs and expenses out of the proceeds of a resale of the premises; or that the plaintiff in the foreclosure action, in event of its making such payment to the purchaser so relieved, recover the same from the proceeds of sale in addition to the amount of its mortgage.</p>

<p>Bankruptcy — Composition proceedings — Effect.</p> <p>Negligence — Actions — Right of action, defenses and pleading — Complaint— Allegations of negligence in general.</p> <p>Pleading — Complaint or declaration — Statement of cause of action in general.</p> <p>The title to all a bankrupt’s property except such as is exempt or nontransferable vests in his trustee but only for the purpose of administration.</p> <p>By force of the confirmation of a composition with a bankrupt’s creditors, he not only obtains title to a dredging plant which was bis prior to his adjudication as a bankrupt but to all rights under a lease thereof made by his trustee in bankruptcy; and it is immaterial whether the trustee has or has not been discharged.</p> <p>Where the assignee of the bankrupt brings an action in such a case for rent and alleges due performance of the conditions of the lease by the trustee in bankruptcy, he need not allege a like performance on his part.</p> <p>An allegation of the complaint that defendant negligently and carelessly damaged and injured certain personal property covered by the lease is good, though there is no allegation of the condition of said property at the time of its delivery to the defendant.</p>

<p>Action upon undertaking.</p>

<p>Stay of proceedings — Supersedeas or stay by proceedings for review — - Scope and effect — What proceedings are stayed.</p> <p>W-here the condition of an undertaking is that if plaintiffs recover judgment against the defendant the surety will pay said judgment and the plaintiffs recover a judgment, an action, is maintainable upon the undertaking pending an appeal from the judgment, though the issuance of an execution thereon has been stayed pending the appeal.</p>

<p>Brokers — Compensation — Fraud, illegality and waiver of right — Fraud or misrepresentation and negligence — Secret employment or compensation by opposite party.</p> <p>It is not per se unlawful for a broker to act for both parties to a contract for the exchange of real estate without disclosing his dual agency.</p> <p>It is only where a broker, as agent, has discretionary authority to purchase real estate that he cannot act for the owner of the property in the transaction.</p> <p>Where, shortly prior to the time fixed for the closing of a contract for the exchange of real estate, the defendant, one of the parties, upon refusing to carry out the contract, obtained a cancellation thereof upon payment of a certain sum, an action against her for commissions by the broker who acted for both parties to her knowledge cannot be defeated upon the ground that plaintiff could not act in a dual capacity.</p> <p>Where the plaintiff and the defendant were the only witnesses the jury were at liberty to believe either, and a verdict in plaintiff’s favor will not be disturbed.</p>

<p>Motion to set aside - verdict directed, subject to the opinion of the court, under section 1185 of the Code.</p>

<p>Demubbeb to complaint. The opinion states the case.</p>

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

<p>Gifts — Delivery and acceptance — In general.</p> <p>The right of the person to whom a policy of life insurance is payable on the death of the insured to the possession of the policy, where the policy also provides that if the person insured shall live for forty years the amount shall be payable to him, is not an exclusive right but a right to be enjoyed in common with the person insured. Where the person insured delivered to such payee such policy absolutely, with the intent of giving to her the right to receive the money upon the expiration of the forty year period, such delivery is a valid execution of the intended gift and vests the title in the donee.</p>

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

<p>Mechanics’ liens — Discharge, satisfaction and termination — Neglect to enforce — Expiration notwithstanding undertaking.</p> <p>A mechanic’s lien for work and material supplied in erecting a municipal building for the city of New York expires in three months from the filing thereof, unless within that time an action is begun to foreclose it, or an order is secured extending the time to do so, notwithstanding the discharge of the lien by the giving of an undertaking within that period.</p>

<p>Action to recover for services of plaintiff’s testator rendered to the city of Yonkers in his lifetime.</p>

<p>Demurrer by the defendant to the plaintiffs’ complaint.</p>

<p>Estoppel — Equitable estoppel and estoppel in pais — Facts creating estoppels — Acquiescence — Consents and permissions.</p> <p>Sales — Conditional sales: Waiver of conditions as to resale: Recovery of price after retaking.</p> <p>A hotel company purchasing furniture for its hotel under a eon- • tract of conditional sale may waive the provisions of section 116 of chapter 418 of the Laws of 1897 (Consol. Pers. Prop. Law, § 65) and the waiver of that section will be construed as a waiver of an existing amendment of. the same section without particular mention thereof.</p> <p>Where a receiver of the company dealt with the seller in such a manner as to lead the latter to believe he did not require the goods to be sold within thirty days after the expiration of the period for redemption and negotiated with the seller who delayed to enable the receiver to find another purchaser, the receiver may not thereafter recover of the seller the amount paid on the goods by the company for failure to sell them within the prescribed period.</p>

<p>Trade marks and trade names: What may be appropriated — Loss or forfeiture of protection: Acquisition, transfer and abandonment — Assignment — Assignability of trade name.</p> <p>The photograph business is in the nature of a profession as distinguished from a trade or mercantile pursuit and the name “ Sarony ” used as a trade mark was personal to the photographer who bore it, because of his personal skill and artistic excellence, and is not assignable; nor can a printer who is not a photographer be protected in its use.</p>

<p>Specific performance — Performance by complainant — Substantial performance.</p> <p>Vendor and purchaser — Quantity, condition and description of property— Failure to convey quantity — Materiality of deficiency.</p> <p>It is not sufficient to excuse a vendee from the performance of a contract for the purchase of real estate consisting of a tenement building situated on a lot twenty feet wide and sixty-two feet deep that the wall of an adjoining owner encroaches between four and five inches on the rear of the lot, but a reasonable compensation should be made to the purchaser for the deficiency out of the purchase price.</p>