Volume 67 — New York State Reporter

<p>1. Villases — Incorporation.</p> <p>A failure or neglect on the part of any member of the board of inspectors to comply properly with the law relating to the incorporation of villages does not, of itself, vitiate the election.</p> <p>2. Same — Notice of election.</p> <p>Under section 7,-tit. 1, chap. 391 of 1870, as amended by chap. 172 of 1888, a man who owns no property, though his wife owns real estate within the territory of the proposed village on which she is liable to assessment and taxation, is not qualified to sign the petition.</p> <p>3. Same '</p> <p>Mor are those qualified, who own no freehold interest in real estate, and whose interest in personal property is of so vague and indefinite a character that it cannot be seized in satisfaction of an execution.</p>

<p>Parties — Intervention.</p> <p>Where it does not appear that a person has a right to he made a party to a pending action, it is a matter of discretion with the court to determine whether he should be given permission to come in as a party.</p>

Submission of the cause without action upon an agreed statement of facts. The submission is as follows : Whereas, a controversy exists between the city of Buffalo, of the one part, and Alfred II.

<p>Will — Insane delusion. An erroneous belief, suggested as a reason for the disinheritance of an heir, in order to affect the validity of the will of the testator, must be shown to be an insane delusion.</p>

The original complaint was as follows : (1) That at the times hereinafter mentioned the defendants were partners doing business in the city of Mew York under the firm name of I. B. Mewcombe & Co. (2) That heretofore the said defendants, under their firm name, made and delivered their promissory note in writing, dated the 24th day of June, 1893, at Mew York, and thereby promised to pay to the plaintiff or his order one hundred thousand dollars ($100,000) in gold, of present…

<p>Damages — Elevated Railway.</p> <p>In ascertaining a present value in an action against an elevated railway for damages, the reasonable certainties of the future, with other elements, fix the present value.</p>

<p>Appeal from an order granting injunction pendente lite.</p>

<p>Appeal from an order overruling a demurrer and from a final judgment entered thereon.</p> <p>In an action in the superior court brought by Joseph Sawyer against Morris Lowenthal and others, plaintiff was appointed receiver of defendants’ property. In a subsequent action in the same court against the same parties, by defendants Fillebrown and Stevens, the receivership was extended to the action brought by them. Afterwards the receivership was extended by the supreme court in an action brought in that court bv Jeremiah Marston against the same parties. There were not sufficient assets remaining in the hands of the receiver to pay the claims of the creditors, and he brings this action to determine priorities. The complaint alleged the foregoing facts. Defendants Fillebrown and Stevens demurred to the complaint: (1) On the ground that the court had no jurisdiction ; (2) that the receiver is an officer of the supreme court, and, as such, has no legal capacity to sue defendants by reason of claims made by them against funds in his bands as receiver of the superior court; (3) that the reis a misjoinder of parties plaintiff by the receiver bringing this action against defendants in his capacity as receiver of both courts; (4) that there is a misjoinder of parties defendant, in that the interest of defendant Marston' is conflicting, and that he had no interest in the subject-matter of the action until its final disposition by the superior court; (5) that the complaint does not state facts sufficient to constitute a cause of action.</p>

<p>1. Insurance — Warranty—Breach.</p> <p>Breach of a warranty that the interest of the insured in the insurance has not been, nor will not he, assigned to a common carrier, renders the policy void, though the company is not injured thereby.</p> <p>3. Same — Assignment.</p> <p>A provision in the bill of lading that the carrier should have, in case of loss, the benefit of the insurance on the goods, and not be answerable over to the insurer, operates as an assignment of the insurance to the carrier.</p>

<p>1. Master and servant — Appliance.</p> <p>Where the master has furnished a machine or appliance, requiring adaptation to the work in hand, and which, if properly adjusted, is suitftble for the purpose for which it is intended, the work of so adjusting it is properly left by him to those engaged in using it.</p> <p>8. Same.</p> <p>If the appliance is carelessly or improperly set up under the directions of the foreman, his negligence in that regard is the negligence of a fellow servant, not performing in that respect a duty primarily resting upon the master.</p>

<p>Executors — Sureties—Liability.</p> <p>The sureties of an administrator are liable for the costs of an accounting imposed by the surrogate upon the administrator personally.</p>

<p>Appeal from a judgment, overruling a demurrer to a part of the answer.</p>

<p>Appeal from an order, continuing an injunction during the pendency of this action.</p>

<p>Landlord and tenant — Holding over.</p> <p>The right of a landlord to regard a tenant, who holds over, either as a trespasser or as a tenant from year to year, is not affected by the fact that the holding over was involuntary on the part of the tenant.</p>

<p>Mortgage — Foreclosure—Purchaser.</p> <p>A purchaser on a foreclosure sale will be relieved from his purchase where, though the title to the mortgaged premises came through a will, neither the remaindermen under said will nor the testator’s heirs were made parties defendant in the action.</p>

<p>Negligence — Contractor.</p> <p>A landlord is not liable for injuries to the tenant's son, caused by the negligence of a contractor engaged by the landlord to repair the premises, where he has a right to believe that the work will be done in a proper manner.</p>

<p>Appeal from an order, granting a motion for a reference.</p>

<p>Appeal from an order, denying a motion for an order settling issues for trial by jury.</p>

<p>1. Carriers — Duty of.</p> <p>A carrier, which undertakes to carry goods by a canal boat shortly before the expected period of freezing, must make a special effort to perform his contract.</p> <p>3. Damages — Carriers.</p> <p>The measure of damages where a carrier, by failure to use due diligence, is able to transport the goods only part of the way, is the difference in the contract price and the increased cost of transportation in order to procure the delivery of the properly at its destination, and such further increased expense as was necessarily incurred as a consequence of the delay, without any pro rata allowance for the partial carriage.</p>

<p>Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial on the minutes.</p>

<p>Appeal from a judgment by default for plaintiff in the municipal court.</p>

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

<p>1. Justice's court — Proof.</p> <p>Upon default of appearance by defendant, the plaintiff is required to established his cause of action, in a justice’s court, by legal proof.</p> <p>S. Same.</p> <p>Where such proof is in writing, the writing is required, or its absence accounted for, before paroi proof is given.</p> <p>S. Same — Appeal.</p> <p>The defendant, on appeal from the default judgment, may avail himself of such error.</p>

<p>Pleading — Warranty—Breach.</p> <p>Where a breach of the covenant of warranty and peaceful enjoyment is claimed on the ground of unpaid taxes at the time of the conveyance, the complaint, if it does not allege an eviction or a judgment that the tax was a lien, fails to state a cause of action.</p>

<p>Appeal from a j udgment in favor of plaintiff.</p>

<p>Service and proof — Corporation.</p> <p>Process against the corporation may he served, under section 431 of the Code, upon a division superintendent, where he retains his position after the appointment of a receiver.</p>

<p>Negligence — Parents.</p> <p>The parents of a child two years of age who, while in the street unattended, was run over by defendant’s wagon, was held not to be chargeble, as matter of law, with negligence.</p>

<p>Appeal from a judgment in favor of plaintiffs, and from an-order granting extra allowances.</p>

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

<p>1. Deeds — Acknowledgment—Certificate.</p> <p>The omission of the county clerk’s certificate to state the name and official character of the officer, who took the acknoledgment, may be supplied from the certificate of acknowledgment.</p> <p>3. Same.</p> <p>The failure to insert a date in the clerk’s certificate does not vitiate it.</p> <p>3. Same — Record.</p> <p>Nor does the mere absence, from the record of a deed, of the seal of the county clerk to his certificate as to the official character of the acknowledging officer vititiate it.</p> <p>i. Same.</p> <p>The provision that the time of record shall be noted is merely directory, where there is no question of rights depending on priority of record.</p>

<p>Motion for taxation of costs.</p>

<p>Proceeding for the probate of a will.</p>

<p>Justice’s Court — Summons—Service.</p> <p>A justice of the peace has no authority to deputize the plaintiff to serve his own summons and he thereby acquires no jurisdiction to render a judgment.</p>

<p>Action on a judgment.</p>

<p>Injunction — Breach op covenant.</p> <p>A covenant on the part of a vendor, who disposes of his business with the good will thereof and, as an inducement to the sale and in consideration thereof, agrees not to re-enter the same business for a period of four years within a certain territory, is valid and enforceable by a court of equity.</p>

<p>Appeal from a judgment entered in favor of plaintiff</p>

<p>Appeal from an order, dismissing the writ of certiorari.</p>

<p>Evidence — Admissions.</p> <p>Admissions, made out of court, are not conclusive.</p>

<p>Motion for leave to serve a supplemental answer.</p>

<p>Trial — Amendment op fleadins.</p> <p>A new pleading which brings in new parties, though it creates no new issues between the original parties, renders necessary a new notice of trial and note of issue.</p>

<p>Motion to dismiss the complaint for failure to prosecute.</p>

<p>1. Jurisdiction — Co-ordinate.</p> <p>The court first to take jurisdiction of a matter shall proceed to judgment and enforce the same, to the exclusion of all other courts, provided only that all the relief which the case requires can he secured in the court in question.</p> <p>3. Same — Stay.</p> <p>■ A justice of the supreme court has not jurisdiction to modify or stay the operation of a judgment of the superior court, regularly procured and duly entered, in the absence of any charge of fraud or irregularity in the means employed in obtaining the judgment.</p>

<p>Demurrer to the complaint.</p>

<p>Pleading — Supplemental answeb.</p> <p>The right to serve a supplemental answer is not a legal right, hut rests in the sound discretion of the court, and, though courts ordinarily allow supplemental pleadings where a judgment, which determines the merits of the controversy, is sought to he pleaded, they will refuse where such defense is of a purely technical nature.</p>

<p>Motion to continue a preliminary injunction.</p>

<p>Appeal from the decree, settling the accounts and directing payment of a creditor’s claim.</p>

<p>Motion to vacate an order for the examination of defendant to aid plaintiff in framing his complaint</p>

<p>1. Pleadings — Irrelevant matter.</p> <p>A motion to strike out of a pleading matter alleged to be irrelevant, redundant or scandalous must be noticed within twenty days from the service of such pleading.</p> <p>3. Same — Answer—Inconsistent defenses.</p> <p>The objection, to an answer, of inconsistency of defenses is not available.</p> <p>3. Same — Frivolous.</p> <p>A portion of an answer will not be stricken out on the ground that it is frivolous.</p>

<p>Service and proof — Summons.</p> <p>- It is not good service of a summons to deposit and leave it on a chair in the room where the defendant then was, without offering to deliver it into her hands, or even asking for her by name or stating the nature of the paper.</p>