Volume 68 — New York Miscellaneous Reports

<p>Motion by plaintiff to dismiss appeal from the City Court of Buffalo.</p>

<p>Carriers — Carriage of passengers: In general — Reasonableness of carrier’s rulss: Ejection of passenger — Failure of passenger to comply with regulations.</p> <p>It is reasonable for a street car company operating “ pay-as-you-enter ” ears to require passengers to .deposit their own fares, and where one having, as he supposes, a regular transfer, which the conductor. properly' refuses to accept after the passenger has entered the car, refuses to go to the platform to deposit his fare in cash, which he tenders to the conductor, the conductor may eject him from the car.</p> <p>The conductor is entitled to a reasonable time to examine transfers tendered him by passengers entering the cars and to decline to receive such as do not conform to the reasonable .regulations of the company and to require passengers tendering them to pay cash fares.</p>

<p>Witnesses — Fees: Expert witnesses: Agreement for fees.</p> <p>An agreement to pay a retainer to an expert witness and a per diem sum for the time he is engaged in the case is to be construed as intending by “ retainer ” a sum of money paid to secure the services of the witness.</p> <p>Where an agreement for the employment of an expert witness is dependent upon his being able to appraise certain manufacturing plants and testify to a certain value therefor, he is not entitled to the agreed compensation upon his failure to make such an appraisal and testify to such a value.</p>

<p>Claim for services as a stenographer in litigation against the State.</p> <p>Litigation arose between the State and the Consolidated Gas Company of the city of Hew York concerning the constitutionality of the so-called eighty-cent gas statute. The State, through the Attorney-General, made a party to the litigation, was called upon to defend the statute. In the de-, fense of the suit, Attorney-General Mayer employed a special stenographer to take minutes and furnish copy. For this service the stenographer was paid, down to the close of Attorney-General Mayer’s term of office. At the beginning of the term of his successor, Attorney-General Jaekson authorized the continuance of the service of the claimant; and he continued to take the minutes and furnish copy to the close, of the case, April 2, 1907. He has not been paid for his services from January 1, 1907, to April 2, 1907. This claim has been filed to recover the sum of $8,921.03.</p> <p>Other facts appear in the opinion.</p>

<p>Appeal from an order of a city magistrate convicting the defendant of abandonment and requiring a bond.</p>

<p>Appeal from a judgment of conviction rendered in the Gity Court of Oneonta.</p>

<p>Certiorari: Form of the writ — Modifying writ as to requirement of return on conflicting affidavits: The return — Scope and contents.</p> <p>The court has no power in a writ of certiorari to direct the commissioners of estimate and assessment, appointed under the provisions of the Greater New York Charter upon changing the grade of a street, to state in their return what evidence in the case was brought to their attention, or what evidence was produced on certain facts, or upon what principles they acted, or what facts they assumed as a basis for their awards, or whether they considered benefits and, if so, what benefits and to whom, for the purpose of compelling them to make an analysis of the evidence in accordance with the relator’s theory of the case and to elaborate their own theory as to offsetting benefits.</p> <p>Where the petition alleges that rulings upon questions arising upon the trial were reserved, but does not state the particular questions, or that any requests for such rulings were made, or show any prejudice to relator’s rights from adverse rulings, the writ may not require the commissioners to specify all their rulings adverse to relator as to which decision was reserved on the trial.</p>

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

<p>Application for the confirmation of the report of commissioners of appraisal, appointed pursuant to the laws to provide an additional water supply for the city of Mew York, relating to section 4 of the Ashokan reservoir.</p>

Arrlication for the confirmation of the report of commissioners of appraisal, appointed pursuant to the laws to provide an additional water supply for the city of Hew York, relating to section 7 of the Ashokan reservoir.

<p>Application for the confirmation of the report of commissioners of appraisal/ appointed pursuant to the laws to provide an additional water suppply for the city of Mew York, relating to section Mo. 9, parcel 385, of the Ashokan reservoir.</p>

<p>Application for the confirmation of the report of commissioners of appraisal, appointed pursuant to the laws to provide an additional water supply for the city of Hew York, relating to section Ho. 15, southern aqueduct department.'</p>

<p>Eminent domain — Condemnation proceedings: Confirmation of report: Costs — Time to object to amount.</p> <p>Local improvements: Persons making assessment and qualifications and removal thereof — Who to make assessment: Assessment districts and persons and property assessable—Fixing assessment district: Amount of assessment, items of expenses included and apportionment of benefits; Apportioning benefits and mode of computation — Front foot rule; Expenses included—Costs.</p> <p>Whether the costs and expenses of a proceeding to acquire lands for a street in the city of New York are extravagant and out of proportion with the size of the proceeding cannot be considered upon the motion to confirm the report of the commissioners of estimate and appraisal, assessing the cost of the improvement upon the property benefited, after the regular taxation thereof upon proper notice.</p> <p>The taxation of the fees of the commissioners as well as the fees of the city’s expert witnesses upon the property within the a.rea of assessment is authorized by statute.</p> <p>The levying of the assessment for the cost of such improvement by a single commissioner is not a violation of the p/ovisions of the State Constitution.</p> <p>Nor is it unconstitutional for the board of estimate to fix the area of assessments for benefits, as the assessment is a tax and no part of the compensation to the owner.</p> <p>Nor should benefits be deducted in awarding damages for injury to property not taken.</p> <p>Where the commissioner does not impose any portion of the cost of the improvement upon the city, his report should not be refused confirmation because he does not state in terms that he considered the question and why he failed to impose any part upon the city.</p> <p>Nor is a uniform rate of assessment according to frontage necessarily improper where no variation as to size, grade improvements or other particulars is shown.</p>

Motion to vacate order directing a former city chamberlain to pay certain moneys and to direct the present chamberlain to pay over such moneys to the petitioner.

<p>Intoxicating liquors — Revocation or forfeiture of license — Grounds for forfeiting license.</p> <p>The forfeiture ipso facto of a liquor tax certificate upon the conviction of the holder of a misdemeanor is a forfeiture of the certificate under which he was trafficking at the time of the.offense and not of a certificate subsequently issued and held by him at the time of his conviction; and the State Commissioner of Excise will he restrained at the suit of the holder from canceling such later certificate.</p>

<p>Motion to quash a warrant issued under section 33 of the Liquor Tax Law and to dismiss the proceedings.</p>

Kelly from the position of personal clerk (exempt class) to Mr. Justice Josiah T. Marean of the Supreme Court, Kings county, to the position of court attendant in the Supreme Court, Kings county (competitive class).

<p>Application for peremptory writ of mandamus, made by the Attorney-General on behalf of the people, to compel the county clerk of Albany county to make and deliver, without compensation, a full abstract of title or official search for a period of about eighty years, affecting lands situate in the county of Albany appropriated by the State for the barge canal. Demand was heretofore made on the clerk by the Attorney-General for such abstract, under claimed authority conferred by section 84 of the Executive Law. Such demand is further made under the claim that the search is necessary to enable the Attorney-General to discharge the duty of examining and certifying the title to the land in question “in order that the State may pay to the person or persons entitled thereto the amount of the award for such land which has been appropriated by the State for canal purposes.” The Attorney-General claims that it is his duty to obtain this search from the county clerk and furnish it to other State officers under the provisions of section 4 of chapter 147' of the Laws of 1903, particularly as amended by chapter 365 of the Laws of 190'6, wherein it is claimed that the Attorney-General is required to furnish to the Comptroller and State Treasurer all searches necessary to prove the title to the lands taken.</p> <p>The county clerk asserts that it is not his duty under any provision of law to make such search gratuitously, and refused to comply with the request of the Attorney-General.</p> <p>It is asserted and conceded, though not specifically appearing in the moving papers, that the county clerk receives his compensation for the services usually rendered by a county clerk through the payment of fees only; that 5,000 parcels of land are involved in the proposed barge canal improvement; that searches for some 2,500 parcels have been obtained, and some 2,500 remain to be obtained; that this proceeding is brought for the purpose of ascertaining,, not only in Albany county but in other counties similarly situated, whether or not the Attorney-General may, without compensation, obtain such searches; that the construction of the barge canal affects lands located in the counties of Albany, Rensselaer, Saratoga, Washington, Schenectady, Montgomery, Fulton, Herkimer, Oneida, Oswego, Onondaga, Cayuga, Seneca, Wayne, Monroe, Orleans, Miagara and Erie.</p>

<p>Trial of an issue of fact, joined upon an alternative writ of mandamus by the court without a jury.</p>

<p>Municipal corporations—'Powers and exercise of governmental functions— In general — Powers of commiss’oners of accounts — To subpoena witnesses.</p> <p>The commissioners of accounts of the city of New York have not power under the provisions of section 119 of the Greater New York charter, for the purpose of ascertaining the facts in connection with the examinations authorized by that section, to issue a subpoena duces tecum to an individual who is neither an employee of the city nor connected with any of its departments, requiring him to appear before them with his private books and papers and submit to examination.</p>

<p>Appeal from a decision of the superintendent of the poor of the county of Wayne, determining the settlement of tin-above poor persons to be in the town of Sodus, Wayne county, Few York.</p>

<p>Motion to compel service of a reply in an action of inter-pleader.</p>

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

<p>Pleading — Amendments — Amendments by leave of court — Conditions on granting leave to amend — Payment of costs.</p> <p>Where plaintiff .at the trial, after a motion by the defendant to dismiss the complaint on the ground it does not state facts sufficient to constitute a cause of action, is permitted to withdraw a juror upon payment of a trial fee in order to move at-Special Term to amend Ms pleading, the costs to he imposed as a condition' of granting leave to amend are not necessarily all costs to date hut are in the discretion of the court and should he fixed in view of the amount involved and the costs already paid.</p>

<p>Action for judgment of interpleader and for discharge from liability upon payment into court.</p>

Application by the American Woolen Company for an order, requiring the receiver to pay over the rents of mortgaged premises.

<p>Associations — Membership — Eights of members — Subjection to governing committees.</p> <p>Injunction — Actions for injunctions — Conditions precedent — Members of association must exhaust remedies under constitution and by-laws.</p> <p>Where no property right of the plaintiff is involved and no fraud or improper conduct appears, the court will not intervene by mandatory injunction to compel the officers and committees of a club of which the plaintiff is a member to give him access to the rolls of membership, which has been refused him by the executive and advisory committee of the club, where the constitution provides that the action" of the executive and advisory committees shall be final.</p> <p>An injunction will not lie against the officers and members of a elub where it does not appear that the plaintiff has been denied a right existing under the constitution and by-laws, or that he has resorted thereto and exhausted his remedy thereunder.</p>

<p>Action on a written guaranty for the payment of rent and to compel the return of certain bonds deposited as security therefor.</p>

<p>Demttbbeb to plaintiff’s complaint,</p>

Motion by defendants to set aside ^ the verdict and for a new trial on all the grounds authorized by section 999 of the Code. '

<p>Contracts — Validity of contract — Effect of invalidity or illegality — Enforcement of illegal contracts in general.</p> <p>Estoppel — Equitable estoppel and estoppel in pais — Facts creating estoppels — Ratification and affirmance — Receiving benefits or proceeds.</p> <p>Executors and administrators — Administrative authority and management of estate — Title, rights and liabilities of persons dealing with representatives or property of estate — Who may attack validity.</p> <p>Where a testator gave and bequeathed to his son, who was also one of his executors, a valuable collection of porcelains, subject to a life estate therein of testator’s wife “provided she survives me, with the request but not as a condition or provision thereto that the said collection be kept intact as a memorial of me,” and the son, under an agreement with the widow and his co-executors to turn over the proceeds to the executors to invest the same and pay the income to the widow during her life, within a year after the testator’s death sold the collection for a large sum and turned over part of the proceeds only and used the remainder thereof for his own benefit, it cannot be alleged as a defense to an action against the personal representatives of the son by the surviving executors after his death that the use which the life tenant might have made of the porcelains was a sentimental one only and of no value to her but would have been a charge and that she lost nothing but was a gainer by being relieved of the care, custody and expense of the porcelains during her lifetime and can, therefore, make no claim against the executors.</p> <p>Nor is it a sufficient answer to such an action that, because a different disposition was made of the porcelains than that which was provided for by the will of the testator, the executors are without any further power or authority in the premises and any contract between them, the life tenant and the testator’s son is incapable"of enforcement by reason of the want of authority on the part of the testator’s executors to make it.</p>

<p>Corporations — Insolvency and receivers: In general — Prohibition of transfers in contemplation of insolvency with intent to give a preference : Receivers and remedies of creditors generally — Sequestration proceedings and appointment of receiver.</p> <p>Where a bank held mortgages upon the real property of a brewing company, some of whose officers and directors were connected with the bank and its attorneys, and the brewing company, with the knowledge and assistance of the bank, sold all its real and personal property and paid up all its indebtedness except its indebtedness to the bank and to one other creditor, and paid all the remaining proceeds of such sale to the bank, which proceeds were insufficient, however, to pay the indebtedness to the bank in full, such transaction is within the prohibition of the provisions of section 66 of the Stock Corporation Law against an assignment or transfer of property of such a corporation, when the corporation is insolvent, with the intent of preferring a particular creditor, although the claim of the unpaid creditor was disputed by the brewing company at the time but was afterward settled by an adjudication in the creditor’s favor; and in an action by such creditor for a sequestration of the property of the brewing company, after the return of an execution upon the judgment in his favor unsatisfied, and for the appointment of a receiver and' an accounting by the bank to the receiver for all moneys received by it from the sale of the plant and business of the brewing company excepting its real property, the plaintiff is entitled to judgment.</p>

<p>Demurrer by plaintiff to the sufficiency of defendant’s ■ answer.</p>

<p>Franchises—Power of local government to grant.</p> <p>Municipal corporations — Powers and exercise of governmental functions — Control of streets and highways and improvement of streets — Power to interfere with railroads operating under legislative grant.</p> <p>The right or franchise to operate a street railroad springs from the State and not from the municipality where its lines lie, and the State alone can revoke it; and the municipality cannot maintain an action to compel the removal of the tracks of the company on the ground that they constitute a nuisance, not from operation in a manner not authorized by the grant, but for mere nonuser.</p>

<p>Insurance: Notice and proof of loss —Necessity and sufficiency in general— Conclusiveness of statements in proof: Actions on policies — Burden of proof — Cause of death of insured.</p> <p>In an action upon a policy of life insurance, suicide is an affirmative defense which the defendant is bound to establish; and the statement in the proofs of loss that the assured committed suicide is not conclusive upon the beneficiaries in a subsequent action upon the policy.</p>

<p>Master and servant — Liability for injuries to third persons — Liability of master for acts of assistant employed by servant.</p> <p>Negligence — Contributory negligence — Persons in street.</p> <p>Where it appears that the plaintiff, an infant, who was knocked down and injured by a wagon while crossing the street, when she stepped off the curb looked in both directions and did not see the wagon, although her view was unobstructed, but was struck down before she had gone three feet from the curb by defendants’ wagon going at the rate of six or eight miles an hour, whose driver gave no" warning, it cannot be said as matter of law that the plaintiff was guilty of contributory negligence.</p> <p>Where the driver of defendants’ wagon, without their knowledge or consent, requested another of defendants’ employees to drive the wagon from the stable to their place of business so that he could go to a place of amusement, the defendants are liable for injuries resulting from the negligence of the employee who took their driver’s place.</p>

<p>Motion for an injunction pendente lite.</p>

<p>Cause of action—■ Splitting cause of action: Whether transaction involves single or several causes of action.</p> <p>Contracts — Interpretation of contract—General rules of interpretation— Interpretation of several instruments as forming one contract.</p> <p>Former adjudication—Adjudication as bar to all matters which might , have been litigated — Splitting cause of action — In general.</p> <p>Judgment — Rendition —At particular stages of the action — Motion for on the pleadings.</p> <p>Pleading: Answer or plea — Defense of' new matter — Sufficiency in general: Replication or reply and subsequent pleadings — Necessity for reply — To allegations of new matter.</p> <p>Sales — Payment and tender — Time of payment — Default as accelerating time—Whether at option of seller.</p> <p>Where upon a sale of personal property a series of notes is given ■ for the purchase price, payable one of them each month thereafter until all are paid, pursuant to the terms of the contract of sale which provides, .that they are to be secured by a chattel mortgage on the chattels which are the subject of the sale, such mortgage to contain a clause that in the event of the nonpayment of any of said notes all of the balance of said notes shall become immediately due and payable; and, where a chattel mortgage is executed accordingly containing such provision, the notes, contract and chattel mortgage form but one contract and must be read together as one instrument.</p> <p>In such a case, the provision that upon nonpayment all the notes shall become immediately due and payable is not to be construed as giving the payee an option to elect that the same shall be due and payable immediately, but the notes become due and payable by virtue of said provision.</p> <p>Where, after such provision becomes operative by the nonpayment of any of such notes, an action is brought on one of them and judgment is recovered against the maker thereon, such judgment is a bar to a subsequent action upon the remaining notes.</p> <p>In such case, however, in which the defendant pleads such judgment in bar, judgment cannot be granted in his favor on the pleadings upon motion therefor, as new matter set up by a defendant and not constituting a counterclaim is to be deemed denied by the plainti-I without any subsequent pleading.</p> <p>And where the answer contains no denials, although it contains a good affirmative defense, it is insufficient, and judgment must be granted in the plaintiffs favor on his motion therefor on the pleadings.</p>

<p>Partition — Bight and propriety — Estates partible — Converted realty.</p> <p>Suspension of power of alienation — Conditions determining validity of suspension — Necessity that suspension period should be measured by human lives.</p> <p>Trusts — Construction of express trusts — Partial validity.</p> <p>Where a testator gives to his executors real property, to manage and control the same for the period of one year after the testator’s death and thereafter to convert ino money and distribute to the legatees and beneficiaries named in the will, the provision requiring the executors to retain the property for one year is invalid; but where the testator’s entire scheme can be carried out by disregarding such provision, except as his purposes may be accelerated thereby, and where, in consequence of the period of one year having already actually expired at the time of the present adjudication, his purposes would be carried out in their entirety by such a decision, such provision will be eliminated and the other provisions of the will will be observed.</p> <p>Since the direction to the executors to sell is mandatory, an equitable conversion of the testator’s real property was effected, and an action will not lie for the partition thereof.</p>

<p>Street railways — Street railway companies, their franchises and right to use of streets — Franchise and right to use streets — License fees — Percentage of receipts — On increase of population by annexation.</p> <p>Where by annexation a city whose population is less than 250,000 becomes part of a city having a greater population, a street railway therein becomes liable to pay a percentage of its gross receipts to the city.</p>

<p>Executors and administrators—Administrative authority and management of estate—Authority and powers in general — Joint or joint and several powers.</p> <p>Suspension of power of alienation — Conditions determining validity of suspension — Persons during whose lives alienation may be suspended — Possibility of death of other persons during the period.</p> <p>Trusts — Construction of express trusts — Partial validity.</p> <p>Wills — Interpretation and construction: Designations and descriptions of persons, objects and purposes — Rules and implications — “Heirs,” “next of kin” or “heirs-at-law: ” Terms defining the nature and quality of estates or interests — Future interests, and vesting, possession and enjoyment—Construction of future limitations— Reference to period of time; Direction to convey, deliver, transfer or pay over to beneficiary at future time.</p> <p>Where a testator devised to his executors real property in trust to receive the rents and profits until the arrival of the time fixed in his will for his said executors to have their first judicial accounting if his son Frederick should live so long, and, if not, then until his death, .and during that time to apply the same to the use of his said son Frederick, and by a subsequent item of his will directed his executors to permit his son Frederick to live in and occupy the premises during the time limited for the duration of the trust; and by a still later item authorized his executors to sell the property, in the event of Frederick’s death or his entire abandonment of its occupancy, and in case of such sale provided that the avails should, if the time fixed in the will for the distribution of the capital of the estate given in trust by the seventh item should not have arrived, pass to said executors in trust and be held by them upon the trust in the seventh item of his said will defined; and where, by the seventh item of his said will, the testator’s residuary estate was given to the executors on certain trusts therein mentioned during the lives of his two sons Byron and Samuel, or until the youngest should have attained the age of twenty-six years, and by the tenth item the time for the first judicial accounting was fixed by the following language: “ When my son Samuel shall have attained the age of twenty-six years, or if before then he shall die leaving my son Byron surviving, then, when my son Byron shall attain the age of twenty-six years, or shall die before attaining that age, or in case of the death of my son Samuel occurring before he attains the age of twenty^six years my son Byron be not living, then within two years after the death of my said son Samuel so occurring, my executors shall render to the proper court an intermediate account of their proceedings as such and as trustees under this will,” held, that it was the intention of the testator, in the contingency mentioned, that the beginning of the period of two years within which the executors were required to render their accounts should be the time of the expiration of the trust .and the termination of the suspension of the power of alienation.</p> <p>In such a case, the duration of the trust is to be measured by the lives of Byron and Samuel and can in no event continue longer and the fact that Frederick may die sooner does not invalidate the trust nor introduce a' third life into the measure of its duration.</p> <p>The same construction will be adopted as applicable to another trust in favor of the testator’s brother Franklin, the language relating to which is in all respects similar to that relating to the trust in favor of Frederick, except that the trust property is given to the executors until “the time fixed for my said executors to have their first judicial accounting” instead of until the “ arrival ” of such time.</p> <p>And where the testator devised and bequeathed to his executors real and personal property in trust to pay the income to his wife for her own use during life, and in another item provided that, in case she should not be living at the time of the first accounting, the proceeds should be distributed among his next of kin, or, if she should then be living and should die thereafter, then upon her death the executors should convert the real property into money and distribute it, the absolute ownership or power of alienation is not held in abeyance for a longer period than her life.</p> <p>In such a case, it seems-that, if it should be assumed that the wife might die before the first accounting and the executors were required to hold the trust estate during the lives of Byron and Samuel and that thus the duration of the trust might be measured by three lives, her life estate should not be invalidated, but that part of the trust to continue after her death and until the first accounting should be cut off as invalid.</p> <p>And where the testator created, after the expiration of the period measured by the lives of Byron and Samuel, an express trust for the payment of an annuity to his widow, such annuity may not be held as a charge upon the corpus of the fund, as has been done in cases where no indestructible trust was created, but such trust for the widow is void.</p> <p>And where, in such a case, if the will failed as a whole, the widow would receive a much.greater share in his estate than the testator intended, the invalid provision for her annuity should be stricken out and the remainder of the will should stand.</p> <p>And where, by the sixteenth item of the will, the testator provided that if any child should thereafter be born to him the executors from the income of the trust of the testator’s residuary estate should pay for his benefit during his minority the same sum directed to be paid to his sons Byron, and Samuel, and by reason of the birth of a son to the testator after the making of his will its provisions require the continuance of the trust of his residuary estate during the lifetime of such son born after the making of the will, or during the continuance of three lives, the unlawful suspension after the death of Byron and Samuel will be adjudged null and void.</p> <p>And where, from the income of the trust attempted to be created by the testator from a portion of his residuary estate on the termination of the trust for the lives of his sons Byron and Samuel, he directed annuities to be paid to his widow and son Daniel and directed any surplus income from such portion as well as from the remainder of his residuary estate to be divided among his next of kin then living, except Daniel, it will not be inferred that he intended to include his widow among his next of kin but an intention will be inferred that each of his children and the descendants of deceased children, if any, should take the same proportionate share that each would take had he died intestate leaving no widow and no son Daniel.</p> <p>And where the testator’s wife was many years younger than himself and his will shows that he contemplated the possibility of her remarriage and he did not deprive her by the terms of his will of her dower right, which was considerable, it will not be inferred that it was his intention to include her among his next of kin in the final distribution of the capital of his estate.</p> <p>From the fact that the testator provides in his will for salaries to two of his executors who received nothing under his will, while the other executors are required to serve without commissions or compensation, an intention on the part of the testator is not to be inferred that the two executors to whom salaries were given should have the principal charge and control of the management of the estate, and that their decisions in cases where differences arise between them and their associates should be controlling.</p> <p>In the absence $f any provision of the will which contemplates or requires that the widow should be put to her election as between benefits which she receives under the will, and which are not large in proportion .to the size of the estate, and her dower, such an intention will not be imputed to the testator.</p> <p>Although there are no words of gift except in the direction to distribute, upon a consideration of all the provisions of the will, held, that the remainder of the testator’s residuary estate vested upon his death in the individuals who were then his next of kin.</p>

<p>Vendor and purchaser — Default and its effect — Vendee’s rights on vendor’s sale after vendor’s default.</p> <p>Where the vendee under a contract for the sale of real property rejects the title tendered by the vendor, whose interest in the premises proved to be that of a mortgagee, and the premises upon foreclosure of his mortgage by the vendor were sold for a greater sum than the contract price in consequence of their increase in value in the meantime, the vendee cannot thereafter claim that the vendor holds the difference between the contract price and the amount realized upon the foreclosure sale as trustee for Mm.</p>

<p>Action to compel testamentary trustees to account.</p>

<p>Action against the city of Kingston for the pollution of Twaalfskill stream in said city of Kingston.</p>

<p>Wills — Interpretation and construction — Designations and descriptions of persons, objects and purposes — Rules and implications — Limitations upon death — Time referred to.</p> <p>Where a testatrix devises and bequeaths certain real and personal property and a share in her residuary estate to her executors in trust to pay the income to her daughter during her life and at her death to pay over and convey the trust estate to her granddaughter, her daughter’s only child, or to the issue of her daughter, or to the next of kin and heirs at law of the testatrix, the testatrix intended her heirs at law and next of kin at the date of the termination of the trust; and her daughter upon the death of the granddaughter may not, by releasing her life estate in the trust property, claim the same absolutely.</p>

<p>Aotioh for construction of a will.</p>

<p>Wills — Interpretation and construction — Terms defining the nature and quality of estates or interests — Future interests, and vesting, possession and enjoyment—Gift to take effect on defeasance of preceding estate. .</p> <p>Where a testator gives to his daughter a share of his estate during her natural life and “after her death” gives, devises and bequeaths the same to her two children, named, share and share alike, or to the survivor of them on his or her attaining 'lawful age, the two children take vested remainders upon the death of the testator; and upon the death of one of the children before the death of his mother his interest will pass to his issue.</p>

<p>Highways: Creation, requisites and incidents—What constitutes acceptance by town; Sufficiency of evidence of highway: Defective highways — Lack of funds as defense.</p> <p>Justices of the peace—Appeal and error — Review — Presumptions Disregard of trivial errors.</p> <p>Where the commissioner of highways for eight or nine years works a road at public expense, it is a sufficient acceptance of the road as a highway to charge the town with damages for negligence in not properly guarding a bridge.</p> <p>It is no defense to an action for .negligence in not replacing a harrier upon the bridge that the commissioner has no funds applicable to the purpose, as, by section 10 of the Highway Law, he is authorized to make the necessary expenditure for extraordinary repairs, to he afterward audited by the town board and collected.</p> <p>Where, upon the trial of an action against the town for damages for negligence in failing to erect proper barriers upon a bridge, the parties regard the claim served upon the supervisors, a copy of which is annexed to the complaint, as in evidence, and defendant, on its motion for nonsuit, raises no question of failure to prove the same, the judgment will not he reversed because of failure formally to introduce it in evidence.</p> <p>Appeal from a judgment rendered by a justice of the peace in favor of plaintiff.</p>

<p>Appeal from a judgment and order of a city magistrate’s court.</p>

<p>Arrest on criminal charge — Examination and commitment for trial— Previous arrest for same act not charged as second offense.</p> <p>Where a person has been arraigned before a magistrate on a charge of excessive speeding of an automobile within the city limits and committed, he may thereafter be arraigned for the same act charged as a second offense and his confinement upon the latter charge is not illegal.</p>

Motion to dismiss indictments on the ground that the apportionment act of 1907 (chap. 727) was unconstitutional, and that chapter 507 of the Laws of 1908, for the violation of which the indictments were found, having been passed by the Senate by a vote of twenty-six to twenty-five, did not receive a majority vote and was invalid for the following reasons: First, because said apportionment act was passed at an extraordinary and not a regular session of the Legislature;…

Demurrer to indictment under section 440 of the Penal . Law charging defendant with transacting business in Orleans county under the assumed name of Whiting Hursery Company, without having filed in the Orleans county clerk’s office the certificate required by law.

<p>Criminal procedure—’Sentence or judgment and execution thereof — Sentence may not be imposed as for a second offense where plea does not so specify.</p> <p>A conviction founded on a plea of guilty of grand larceny in the second degree, to an indictment charging the crime of grand larceny in the second degree as a second offense, is not sufficient upon which to found a sentence for imprisonment for life.</p>

<p>Assault and battery — Civil Liability — Defenses.</p> <p>Licenses to enter upon land — Creation and requisites of license — Presumption of license.</p> <p>In an action against the landlord of an apartment house for an assault and battery which consisted of the plaintiff’s forcible ejection by the janitor, it is not a defense to allege and prove that' plaintiff’s ejection was occasioned by his refusal to obey the order of the janitor to communicate. with one of the tenants, from whom he had come to collect a bill, through the dumb-waiter.</p>

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

<p>Appeal by the plaintiff from a judgment of the City Court of the city of New York, entered in favor of defendant and from an order denying plaintiff’s motion for a new trial.</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, after a trial before the count without a jury.

<p>Assault and battery — Civil liability — What constitutes assault. Carriers — Carriage of passengers — Contract for transportation — In general — Contract depending on payment of fare.</p> <p>Municipal courts —- Jurisdiction — Municipal Court.</p> <p>A cause of action against a street railway company for an assault by the conductor of a street railway car upon one who has not paid Ms fare and become a passenger is not an action for the breach of a contract' of carriage but is for an assault; and the Municipal Court of the city of Hew York has no jurisdiction of such an action.</p>

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

Appeal by the plaintiffs from a judgment in favor of the defendants, rendered in the Municipal Court- of the city of Mew York, eighth district, borough of Manhattan.

<p>Appeal by the defendant from an interlocutory judgment of the Municipal Court of the city of New York, second district, borough of the Bronx, overruling a demurrer to the complaint.</p>

<p>Corporations — By-laws — Validity of by-laws.</p> <p>A by-law which provides for the repayment of the amount paid by a shareholder in a stock corporation to the corporation upon his shares, when he resigns from the company, is invalid.</p>

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

<p>Reargument of an appeal by the defendant from a judgment of the City Court of the city of ¡New York, entered upon a verdict rendered in favor of the plaintiff and from an order denying a motion for a new trial.</p>

<p>Summary proceedings — Final order — Dismissal — On the merits.</p> <p>A dismissal of summary proceedings to recover possession of real property on the merits, for failure to prove the agency of the person verifying the petition, is error.</p>

Appeal by the plaintiffs from a judgment of the Municipal Court of the city of Hew York, ninth district, borough of Manhattan, rendered in favor of the defendant, dismissing the complaint without prejudice to a new action.

<p>Judgment — Collateral attack — Want of jurisdiction — Eight of parties to impeach judgment.</p> <p>A final order and warrant in summary proceedings to recover the possession of real property is only subject to collateral attack for jurisdictional defects appearing on the face of the process or order, but not for defects depending upon facts requiring extrinsic proof.</p>

Appeal by the plaintiff from a judgment of the City Court of the city of Hew .York, entered in favor of the defendant after a trial by the court without a jury, on an agreed statement of facts.

Appeal by the plaintiff in each case from an order of the Municipal Court of the city of Hew York, seventh district, borough of Manhattan, setting aside the verdict of a jury rendered in favor of the plaintiff by direction of the court and ordering a new trial.

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

<p>Appeal by the plaintiff from a judgment of the City Court of the city of New York dismissing the complaint at the close of the plaintiff’s case.</p>

<p>Appeal-by a judgment creditor from an order of the City Court of the city of Hew York denying a motion to punish a third party for contempt in supplementary proceedings.</p>

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

Demurrer by the defendant, The Travelers Insurance Company, to the complaint, on the ground: First. That it does not state facts sufficient to constitute a cause of action. Second. That there is a defect of parties defendant in that the persons who may become heirs of the plaintiff upon the death of the defendants Leo G. Hadley and Martha J. Stebbins prior to the death of Fannie H. Hadley have not been made parties defendant.

<p>Damages — Particular contracts and relations — Contract to give lease and liability as between lessor and lessee — Liability of lessee.</p> <p>Indemnity — Extent and fixing of liability under express contract — Contract against liability for sale of intoxicating liquors.</p> <p>Landlord and tenant — Assignment, subletting and mortgage — Construction and operation of subleases.</p> <p>Pleading — Waiver of objections—Objections that evidence not admissible under pleadings.</p> <p>The court will decide aQ controversy between the parties, which they try without objection that it is not within the pleadings, though it involves a tort, and the complaint purports to set up an action on contract but states the facts involved in the controversy.</p> <p>A covenant by a tenant, to indemnify his landlord against liability arising from renting the premises for the sale of intoxicating liquors, and by virtue of civil damages by intoxicated persons receiving liquor, and on account of section 39 of the Liquor Tax Law or any violation of the provisions of said law, does not comprehend injury to the value of the premises on account of inability to procure a license for the sale of liquors there in consequence of a violation of provisions of the Liquor Tax Law on said premises during said term.</p> <p>The tenant of real property is not liable for injury to the demised premises by the commission of acts thereon by his subtenant, without his knowledge and consent, which prevent the owner of the premises from obtaining a license for the sale of intoxicating liquors thereon, for which the said premises are adapted, for the period of nearly one year after the expiration of the lease, where such injury is not within any covenant contained in the lease.</p> <p>A tenant of real property is under no implied obligation to answer for the good character or conduct of a subtenant, and has no authority to control his conduct outside the terms of his lease.</p>

<p>Actions to foreclose liens.</p>

<p>Action to recover the purchase price of a certain account register.</p>

<p>Action to recover penalty for excessive fare under section 39 of the Railroad Law.</p>

<p>Abutting owners — Occupation of street or highway by railway — Construction of additional track.</p> <p>Easements — Nature and creation — Creation by prescription—Extent of user.</p> <p>Where an elevated railroad company entered upon the occupation of a public street in the city of New York under a franchise giving it the right to build a structure in front of the plaintiffs’ premises which would be capable of sustaining three tracks and constructed such a structure and laid two tracks thereon and used the same for the purposes of its business, its subsequent installation of a third track and the increasing frequency, and size of its trains due to increase in its business and extension of its lines do not constitute an additional burden beyond the rights acquired by its user.</p>

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

<p>.Religious societies — Property and funds — Title to society property — Effect of nonrecognition by superior ecclesiastical body.</p> <p>Trusts — The beneficiary, his estate, rights and interest — Where trust is passive.</p> <p>By a deed of trust by which the grantors declared that they held in trust certain lands constituting a church and cemetery for the St. John’s Church of Islip, by which name the church corporation then existing was commonly known, the title passed to the cestui que trust by virtue óf the Revised Statutes (1 R. S. 728, §§ 49, 50) then in force.</p> <p>Though the church may have ceased to have existed as a recognized ecclesiastical body and may have been read out of the diocese to which it belonged by a vote of the diocesan convention, yet as a body incorporated according to the laws of the State it had not been divested of the title to property which it' was authorized to take.</p>

Motion to compel purchaser to take title in an action for the partition and sale of premises known as líos. 2.11 and 213 Park Row, in the borough of Manhattan, liew York city.

<p>Action for conversion.</p>

<p>The county clerk has taxed costs in favor of the plaintiff, and the defendant appeals therefrom.</p> <p>This case was tried in the City Court of the city of Kingston and resulted in a judgment in favor of the plaintiff in the sum of $162. From that judgment an appeal was taken to the County Court of Ulster county for a néw trial. Within fifteen days after the service of the notice of appeal, the defendant served upon the plaintiff a written offer to allow judgment to he rendered in the appellate court in favor of the plaintiff for one dollar, which offer the plaintiff did not accept.</p> <p>Upon the new trial in the County Court, a judgment was rendered in favor of the plaintiff for practically the same sum as found in the court below.</p>

<p>Eminent domain— Condemnation proceedings: Petition — Description as limiting property taken: Defenses — Inadequacy of appropriation: Procedure — Trial — Motion to dismiss at close of plaintiff’s case.</p> <p>Upon a ¡motion to dismiss the .petition in a condemnation proceeding, at the close of the plaintiff’s case, it is entitled to the benefit of every fact that can be found from the evidence and to all reasonable inferences warranted thereby.</p> <p>The only property which can lawfully be taken in condemnation proceedings, is the precise property described in the petition.</p> <p>The rules governing the construction of descriptions in grants of lands bordering on waters have no application to proceedings in invitum, where the petitioner’s acquirement is confined to the property specifically described and the rights or interest definitely set forth.</p> <p>Where at a village election a proposition to purchase certain land located within the corporate limits for a public park and containing a pond nearly three acres in area was carried, and the village, asserting its inability td agree with the owners for the purchase of the property, by virtue of section 22 of the General Municipal Law, presented a petition, under the provisions of the Code of Civil Procedure, to acquire title to certain property described as a margin of land entirely surrounding the pond and a strip of land adjacent to the creek of which the pond was an arm, and no reference is made in the petition to riparian rights or easements, excluding from the description the bed of the pond, it' is unnecessary, upon a motion to dismiss the petition at the close of the plaintiff’s case, to consider the rights of the property owners in the pond or creek, as, under the description in the petition, there was no lawful attempt to take the pond or extinguish their rights in the creek.</p> <p>The evidence being sufficient to show the necessity of the acquisition of the property described in the petition for a public park, due effort and inability to agree with the owners for the purchase of said property, the disagreement being the unavoidable result of an irreconcilable contention as to property rights rather than attributable to a lack of fair effort to purchase for a just price the property which the village actually contemplated taking, a motion to dismiss the petition at the close of the plaintiff’s case will be denied.</p> <p>No harm can result to the property owners on account of the alleged inadequacy of the sum of money lawfully provided to acquire the property or pay the damages occasioned by the improvement, as under the Condemnation Law the village cannot be vested with title except upon payment of the appraised value of the holdings of the property owners by the commissioners.</p>

<p>Action upon contract</p>

Motion to confirm accounts of the Superintendent of Insurance in a proceeding for the liquidation of the business of the Traders and Travelers’ Accident Company, under section 63 of the Insurance Law.

<p>Intoxicating liquors — In general — Police supervision.</p> <p>Under the express provisions of the Liquor Tax Law police officers in cities have the right to go into, investigate and inspect any portion of premises where' liquor is sold in order to ascertain whether or not there are violations of the Liquor Tax Law, and such right of entry and inspection is not confined to the room where the sale of liquor is actually carried on, but extends, also, to any other portion of the premises in any way connected therewith, to the end that it may be determined whether the law is being violated.</p>

<p>Application for a peremptory writ of mandamus to compel the comptroller of the city of Yonkers to pay the relator’s claim for supplies purchased for the use of the city by the commissioner of public safety after having exhausted all moneys appropriated to his department.</p>

<p>Motion in supplementary proceedings to compel the receiver to deliver a certain promissory note.</p>

<p>Motion to vacate order for the examination of the defendant before trial.</p>

<p>Motion to compel answers from witnesses examined under a foreign commission.</p>

<p>Motion by defendant to vacate an injunction.</p>

<p>Injunction — Preliminary injunction — Grounds and matters considered — Injunction when right depends on extrinsic facts — Acts tending to render judgment ineffectual — Where money judgment only is demanded.</p> <p>In an action for deceit in representing the amount of "business done in a drug store purchased of defendant, the plaintiff will not be granted an injunction restraining the negotiation of promissory notes given in part consideration of the purchase where the complaint demands money damages only and does not ask that the notes be delivered up and cancelled.</p>

<p>Injunction — Who and what may be enjoined — Miscellaneous matters — Infringement of literary rights.</p> <p>Literary property — Infringement.</p> <p>Trade-marks and trade-names—What may be appropriated — Descriptive words.</p> <p>The word “ Chanteeler ” as applied to a play in which every character represents a barnyard fowl or animal has not such a descriptive character as to preclude its exclusive appropriation.</p> <p>The owner of the play “Chanteeler” will be granted an injunction against the presentation of a burlesque thereof under the name “ Chanticlair ” upon the ground that, as shown by the affidavits, the public will be deceived and misled.</p> <p>The fact that the first actual production of the burlesque was made in Europe by persons fgom whom defendants obtained their rights therein, before “ Chanteeler ” was produced, is no reason for denying the owner of “ Chanteeler ” an injunction restraining the production of “Chanticlair,” no claim being made that the latter name was not adopted by its author with full knowledge of what the author of “ Chanteeler ” had previously done.</p>

<p>Motion to vacate an order granting leave to discontinue.</p>

<p>Motion to compel the defendant’s attorney to accept service of an amended complaint.</p>

<p>Fidelity bond: Extent and fixing of liability — In general: Remedies of the parties — Sufficiency of complaint; Defenses.</p> <p>The amount of a bond, given under the provisions of chapter 185 of the Laws of 1907, as amended by chapter 479 of the Laws of 1908, by persons engaged in selling certain steamship and railroad tickets, constitutes a fund for the payment of the creditors of such persons pro rata and is to be distributed among the creditors equitably according to their respective claims.</p> <p>In such a case, a demurrer to an answer by which the defendant alleges that it has paid judgments in excess of $15,000, blit does no't allege that it has paid $15,000 in satisfaction of judgments, should be sustained.</p> <p>Whether the defendant'in an action upon such a bond can plead the payment of judgments recovered in actions at law at the full amount paid thereon, if that would be more than the pro rata share of the creditors," quaere.</p>

<p>Courts — Powers — Supreme Court — Refusal to exercise where Surrogates’ Courts have jurisdiction.</p> <p>Jurisdiction — Jurisdiction of particular courts — Supreme and Circuit Court — When court will decline to exercise.</p> <p>Whether the Supreme Court will exercise the jurisdiction it possesses to entertain an action for the removal of a testamentary trustee, or decline to exercise it and leave the plaintiff to prosecute his remedy in the Surrogate’s Court, may properly be determined upon a motion for judgment on the pleadings.</p> <p>It is not a sufficient reason why the Supreme Court should entertain jurisdiction in such a case that other parties may have to be brought in and other relief demanded of a character which the Surrogate’s Court is unable to give, but the complaint must show that such additional parties and such relief will be required.</p>

<p>Motion to confirm referee’s reports and to discharge receiver.</p>

Motion to vacate stay pending appeal from order requiring respondents to appear and testify in a matter under investigation by a committee of the board of aldermen of the city of Buffalo.

<p>Principal and agent — Rights and liabilities of principal as to third persons — Unauthorized and tortious acts of agents (including apparent authority): Power to receive or collect debt — Payment before due; Ratification.</p> <p>Authority upon the part of one claiming to be the agent of a mortgagee to receive payment of the amount secured thereby before it is due is not to be inferred from Ms possession of the mortgage.</p> <p>The filing of a claim against the estate of ■ an attorney who received payment of a mortgage by the mortgagee under such circumstances is not a ratification of his act in receiving the payment and does not bar a recovery from the mortgagor.</p>

<p>Constitutional law — Provision relative to municipalities and political boards and divisions — Provisions relative to schools.</p> <p>Payment — Recovery back of payments — Payment under mistake of fact.</p> <p>Waters and water courses — Supply to the public — By private persons — Contracts with municipalities — Construction — Free supply to schools.</p> <p>A religious corporation, maintaining a school under the direction of the regents and subject to the visitation of the superintendent of schools of th? city in which it is located, is entitled to the benefit of a provision contained in a contract by which the munieipality granted to a copartnership the right to lay water ¡lipes and mains in the public streets of the city and to sell or rent water from its works to private individuals and corporations, and by which the copartnership agreed to furnish water for general use in all schoollinusi s in the municipality.</p> <p>Such agreement does not contravene the provisions of section 4 of article 9 of the State Constitution, providing that neither the State nor any subdivision thereof shall use its property or credit in aid of any school under the control of a religious denomination.</p> <p>Though such agreement, after the provision for furnishing water free to schoolhouses, provides that the copartnership shall not be obliged to furnish water without compensation to any public or private charitable association, institution or building nor any eleemosynary corporation of any kind, except as thereinbefore mentioned, but is not by its, terms limited in its application to public schools, where the corporation during the period of the contract furnished water to other schools and thereby placed its own construction upon the terms of the contract, the contract will be interpreted by the court as intending to include such schools as that of the plaintiff among those to which the copartnership agreed to furnish water free, and the plaintiff will be entitled to recover sums paid to said copartnership upon it's demand for water furnished it in ignorance of the provisions of said contract.</p>

<p>Appeal by judgment debtor from an order of the City Court of the city of Few York, in proceedings supplementary to execution, adjudging judgment debtor in contempt of court for failing to appear for examination, and imposing a fine equal to the amount of the judgment against him.</p>

<p>Appeal from a final order in favor of plaintiff-landlord, rendered in the Municipal Court of the city of Rew York, ninth district, borough of Manhattan.</p>

Appeal by landlord from a judgment and final order of the Municipal Court of the city of Kew York, third district, in favor of the tenant in a summary proceeding.

<p>New trial — Grounds — Misconduct of or affecting jury—Colloquy between court and counsel.</p> <p>Where the court upon the trial of a cause therein quarrels with the counsel for the defendant, gives him no opportunity to interpose objections to questions asked witnesses by the court, characterizes his objections as ridiculous, refuses to note an exception he has taken, assumes to deny a motion to strike out testimony taken upon the examination of a witness, by the court before the counsel has made such a motion, and threatens to commit him for contempt in the presence of the jury, such conduct on the part of the trial court calls for a reversal of a judgment entered upon a verdict in favor of the plaintiff.</p>

<p>Motion by the city of New York for an order appointing commissioners of estimate of lands sought to be acquired for ferry purposes.</p>

<p>Eminent domain — Condemnation proceedings — Decree or order — Amendment — To correct clerical error.</p> <p>The court has power to amend an order confirming the report of commissioners of estimate and assessment, in proceedings for the opening of a street in the borough of Brooklyn, so as, to correct a clerical error.</p>

<p>Eminent domain — Condemnation proceedings — Decree or order — Amendment — To correct clerical error — Laches.</p> <p>The court has power to amend, an order confirming the report of commissioners of estimate and assessment, in proceedings for the opening of a street in the borough of Brooklyn, so as to correct a clerical mistake; and, unlike an application to vacate or reduce assessments, speedy objection is not required, but the error should be corrected unless the applicant’s laches has prejudiced the city.</p>

<p>Motioh to confirm report of commissioners in a proceeding under section 159 of the Village Law. Petitioner was the owner of four pieces of property situate upon Broadway street in the village of Fort Edward. On one side of the street the grade of the roadway had been lowered an average distance of eight inches and on the other side of the street or roadway it had been raised an average distance of four inches. Commissioners appointed to determine the damage awarded $1,040 to petitioner. The sidewalk on each side of the street in front of the property of the petitioner had not been changed or lowered to conform to the new street grade. Evidence was received by the commissioners, under the objection and exception of the village, tending to show that the property had depreciated in value because, if the sidewalk was lowered, steps would be necessary to get into the building, and that the cost of conforming the -buildings to the new grade and building new walks was a certain amount of money. The commission also refused to find that the property had been benefited by the paving of the street.</p>

<p>Motion for a writ of mandamus.</p>

<p>Motion to vacate an order for the examination of a third party in supplementary proceedings.</p>

<p>Attachment — When attachment authorized — When action deemed commenced or pending so as to authorize or sustain attachment — Necessity and sufficiency of service of summons before statutory; period; Second application after vacation of former writ.</p> <p>Jurisdiction — -Domicile of party or location of subject-matter as affecting jurisdiction — Nonresidents — Effect of attachment.</p> <p>Where, in an action in the Supreme Court against nonresident' defendants, a warrant of attachment is granted and an order is made for the publication of the summons, the jurisdiction acquired by the publication of the summons in pursuance of the order is not lost by the failure to serve the summons within thirty days after the granting of the warrant of attachment' or to commence service by publication within that period; and, although the attachment became invalid by reason of such failure and the plaintiffs themselves procured an order vacating the same, a second attachment, granted after service of the summons was complete, is not invalidated thereby.</p>

<p>Motioisr for an order continuing a preliminary injunction restraining acts of violence and enjoining a conspiracy injurious to plaintiff’s business.</p>

<p>Common schools: Meeting of voters — Special meetings: Appeals from orders and resolutions — Appellate jurisdiction of Commissioner of Education.</p> <p>Municipal corporations — Remedies' of taxpayers and corporators — Action by taxpayer to control conduct of municipal affairs or to prevent waste.</p> <p>A meeting of the inhabitants of a school district held without personal service of notice thereof on any inhabitant of the district, where no resolution changing the mode of notice has been adopted at any annual meeting, is irregular.</p> <p>Nor will the provisions of section 200 of the Education Law, that such a meeting shall not be held illegal for want of a due notice to all the persons qualified to vote thereat, validate a meeting held without notice to any of the inhabitants..</p> <p>The right to subject the property of the inhabitants of a school district to a tax and the determination of the validity of meetings for that purpose has not been exclusively delegated to the head of the department of education, but a party aggrieved, if he has a clear legal right, may enforce it in the courts.</p> <p>A vote at a meeting called without legal notice to any of the inhabitants assuming to authorize the construction of a new schoolhouse confers no authority upon the trustees of the district to issue bonds or award contracts therefor, and thdy will be restrained from so doing at the suit of a taxpayer.</p>

<p>Taxes: Assessment — Formal requisites of assessment — In general — Description of lands: Equalization, correction and review of assessments — Correction and review — In general — Sufficiency of advertisement for grievances; Sufficiency of advertisement of completion of roll; Correction and review — Certiorari — Time of taking proceeding — Failure to publish notice of completion of roll: Relief from illegal taxation — Injunction — Waiver of defects.</p> <p>When the description of property in an assessment roll is sufficient for its identification and no objection to the sufficiency of the description is made by the owner when he appears on grievance day and objects to the assessment on other grounds, the collection of a tax afterward levied thereon will not be enjoined for the insufficiency of the description.</p> <p>Where property is not assessed by the acre, the omission to state the number of acres in the assessment roll will not invalidate the assessment.</p> <p>Where notice for the hearing of grievances was duly published in two newspapers, failure to begin publication in a third newspaper until two days after the time required by statute does not invalidate the assessment in the absence of proof that any taxpayer failed to obtain notice.</p> <p>Failure to publish notice of the completion of the assessment roll does not invalidate a tax levied thereon, its only effect being to leave unlimited the time within which aggrieved parties might sue out certiorari to review the act of the assessors.</p>

<p>Motion to vacate temporary injunction.</p>

<p>Ac tío tr for dower.</p>

<p>Ac tío it upon a contract.</p>

<p>Action upon a policy of life insurance.</p>

<p>Libel and slander: Privileged communications; In general—Criticisms; Public and official communications — Memorials and addresses to public authorities: Pleading — Plea or answer — Privileged communications — Criticisms and memorials and addresses to public authorities.</p> <p>In an action by the police commissioner of the city of New York for libel of him in his official capacity in the sending by defendant of a letter to the mayor of the city of New York, the plaintiff’s superior officer, vested with power to remove him, upon the subject of photographing and measuring persons accused of crime but not convicted for the “Rogues’ Gallery” and also for publishing the same letter in the public press, an answer, setting, forth facts and circumstances showing that the letter was written so as to bring properly before the mayor the official misconduct of his subordinate and was without malice, is sufficient to invoke as a defense to the communication sent to the mayor the qualified privilege which attaches to such communications when relating to the conduct of a public officer and sent for the purpose of calling the attention of his superior thereto, and neither the mere fact of its subsequent publication in the newspapers nor the use of intemperate and vituperative expressions in the communication in excess of the occasion and circumstances to which it is applied necessarily destroys the privilege but is merely evidence to be considered on the question of the existence of express malice which would render the defendant liable.</p> <p>The defense that the occasion was one of public interest and that the facts stated in the article were true and the comment upon them fair and honest, though not strictly a claim of privilege but rather a claim that the words are not defamatory and the criticism is no libel, is to be determined as to its sufficiency by like principles; and in pleading it the rules governing the sufficiency of a plea of justification are applicable and the burden is placed upon the defendant of averring the particular facts and circumstances relied upon to establish the truth of the statements contained in the article.</p>

<p>Action to annul a marriage.</p>

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

<p>Principal and agent — Rights and liabilities of principal as to third person — Rights and liabilities as undisclosed principal — Liability of undisclosed principal on contract.</p> <p>Where an owner of land, after refusing to give an executory contract for the sale thereof, directs and authorizes building operations thereon and gives his express assent and approval as such operations proceed, he is liable as an undisclosed principal to one who was employed under a written contract with the proposed purchaser whom said owner had requested to go on with the work.</p>

<p>Pboceeding for an accounting.</p>

<p>Appeal from a judgment in favor of the plaintiff for forty-one dollars and forty-eight- cents damages, besides costs, rendered by a justice of the peace upon the verdict of a jury.</p>

<p>Justices of the peace: Procedure in justices’ courts — Postponement — Grounds in general; Trial — Saving questions for review: Appeal and error — Determination and disposition of cause — Proceedings in lower court — Cannot be amended.</p> <p>A defendant in justice’s court, who upon the return-day of a summons, without answering, simply causes to be filed a physician’s certificate that he is ill and can not attend, has no cause for complaint if the justice orders the trial to proceed.</p> <p>Where, upon the return-day of a summons in an action brought upon a promissory note in justice’s court, after plaintiff’s attorney has testified as to the amount due, his motion for judgment upon the pleadings is granted, an objection by defendant, who did not answer, to the entry of the judgment on the ground that the evidence was insufficient, is timely and cause for reversal of the judgment upon the ground that the justice had no jurisdiction, there being no proof that a verified complaint was served with the summons and plaintiff having failed to produce the note and prove its due execution and delivery.</p> <p>The County Court, on appeal from the judgment, has no power to grant leave to file a certificate of the constable showing that a verified complaint was served with the summons and to amend his return accordingly.</p>

<p>Grand jury — Presentments — Abolishment of presentments — Expunging presentment from record.</p> <p>Whatever office a presentment may once have performed, whether as a basis for a eriminal prosecution or as a direction to frame an indictment, it has been expressly abolished in this State, and a grand jury, in its inquiry as to whether a crime has been committed, is limited to finding an indictment or dismissing the charge.</p> <p>Where a Deputy Attorney-General who appeared before a grand jury in the county of New York to make an inquiry concerning a criminal charge against the American Ice Company, after considerable testimony had been taken, expressed his intention to withdraw the case, and the grand jury not satisfied with his reason for such action sought the advice of the court who did not agree with the Deputy Attorney-General and directed the inquiry to proceed, and after the taking of further testimony and contrary to the advice of the Deputy Attorney-General the grand jury voted “ to find no bill ” its legal power is exhausted and its presentation to the court of a paper reflecting upon the professional honor and integrity of the deputy Attorney- General and his conduct of the inquiry before them is without legal right or justification, and, on motion, said paper will be stricken from the records of the court.</p>

<p>Canals — Acquiring land; Compensation for appropriation of land — - Time for making claim.</p> <p>Eminent domain — Measure of compensation — Compensation for improvements on lands.</p> <p>Evidence — Documentary evidence — In general — Diagrams and maps — Admissibility of ancient or official maps.</p> <p>States — Claims—Liability of State in general—Estoppel.</p> <p>Prior to the passage of the Canal Law, the provisions of the statutes operated to give the State a good title to land and water, upon which it had entered and of which it had taken possession, after the lapse of one year after such entry and possession, and provided a method by which, within the year, the owners of the property taken might obtain compensation therefor.</p> <p>The Holmes-Hutehinson maps of 1834, made pursuant to the Revised. Statutes of 1829 and certified and filed in the Comptroller’s office, are evidence of the extent of appropriations made by the 'State for canal purposes though not filed in the county clerk’s office; for the filing in the latter office was not contemplated by the statute as necessary, though it provided for filing extracts from maps in county clerk’s offices in the discretion of the Canal Board.</p> <p>A map made in 1838 pursuant to statute (R. S. pt. 1, tit. 9, chap. 9, art. 2, § 17) showing, by the use of a blue line, the land overflowed and, by the use of a green line, the land necessary to be appropriated or theretofore appropriated by the State, is also evidence of the extent of the appropriation hy the State.</p> <p>An appropriation by the State of lands as to the title of which there is a dispute between the State and private claimants is not a concession by the State that the claimants were the owners of the land in dispute, where the appropriation appears upon its face to have been made for the purpose of securing an adjudication of that' question in the Court of Claims.</p> <p>It is the duty of private persons having erected buildings on State lands, upon receiving notice, to remove such buildings from the lands of the State; and upon their failure to do so they cannot recover the value of such buildings from the State.</p>

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

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

<p>Injunction—Who and what may he enjoined—Acts of public corporations and officers — Enjoining water commissioners from cutting off water.</p> <p>Municipal corporations — Powers and exercise of governmental functions: Subjects of municipal regulation and validity of ordinances and by-laws — Delegation of power by common council: Powers of different departments and boards — Powers of commissioner of water supply, gas and electricity.</p> <p>The Greater New York charter having, by sections 473 and 475, given the power to fix water rates to the board of aldermen, they may not, after fixing the rate on certain classes of buildings, delegate the power to the commissioner of water supply, gas and electricity to fix the rate on other buildings, by leaving it to be fixed by special contract with him.</p> <p>A temporary injunction will be granted on the application of the owner of an apartment house in the city of New York for which water rates have not been fixed by the board of aldermen, restraining the municipal authorities from cutting off their water supply, in a suit brought by them to obtain a permanent injunction, upon condition that they permit meters to be installed to measure the water actually used while the injunction continues.</p>

<p>Demurrer to defendant’s answer.</p>

<p>Demubeebs to plaintiff’s complaint.</p>