Volume 68 — New York State Reporter

<p>-Appeal — Evidence.</p> <p>Where there is a vast preponderance in the evidence in favor of the appellant, and his case is supported by numerous witnesses apparently entitled to credit, and the respondent’s case stands upon his own testimony, or that of one under him and interested in the result, it is the duty of the general term to exercise an independent judgment upon the evidence offered.</p>

<p>Appeal — Evidence.</p> <p>Where, in an action for personal injuries, the sole ground of appeal is that the verdict is against the weight of evidence, it is the duty of the general term ;o review the evidence and determine whether the plaintiff has established the negligence of the defendant, and his freedom from contributory negligence, by a fair preponderance of evidence.</p>

<p>Appeal from a judgment for plaintiff.</p>

Demurrer to the complaint. The plaintiff was incorporated under and by virtue o£ chapter 376 of the Laws of 1880, with power to institute subordinate lodges. The objects were the promotion of friendship, charity and benevolence, and to aid members in case of sickness or death.

<p>1; Pleading — Answer—Sham.</p> <p>A pleading on information and belief should not be stricken out as sham, unless it clearly appears that there could not have been any information or belief, and the defense must be false, in the sense of being a mere pretense, set up in bad faith and without color of fact.</p> <p>2. Same — Definite.</p> <p>If the court, looking at the pleading, can see with ordinary certainty the meaning of the allegation, and the defense intended to be set up thereby, the pleading will be held sufficient to resist a motion to make it no more definite.</p> <p>3. Same — Bill of particulars.</p> <p>Where a party seeks to he fully apprised of the particulars or circumstances of time and place of the matters set forth in his adversary’s pleading, a hill of particulars is the appropriate remedy.</p>

<p>Parties — Poor person — Infant.</p> <p>The provisions of section 458 of the Code apply to an infant plaintiff, suing by her guardian ad litem.</p>

<p>Application for a peremptory writ of mandamus to compel a transfer agent of a foreign corporation to exhibit to relator the transfer book and a list of the stockholders of the company.</p>

<p>Conversion — Payment on condition</p> <p>An action cannot be maintained for the conversion of a fund payable to plaintiff on condition, unless such condition has been complied with at the time of the alleged conversion.</p>

<p>Appeal from a judgment for plaintiff.</p>

<p>Will — Construction.</p> <p>Where the provisions of a will authorize the executors to use the income of the testator’s estate, and if need be, the principal for the support aud education of the minor children, the executors have a discretion, as. to the expenditures to be made for the purpose.</p>

<p>Pleading — Amendment.</p> <p>Leave to amend the answer by withdrawing an admission and interposing a denial in an action for goods sold and delivered, was held, under the circumstances of this case, to have been properly denied.</p>

<p>1. Statute of frauds — Land.</p> <p>An agreement to execute a lease of real property for one year, with the privilege of two more, is within the statute of frauds.</p> <p>2. Same — Part performance.</p> <p>In such case, the payment of money on account is not such part performance as will take the case out of the statute of frauds.</p>

Plaintiff’s injuries were alleged to have been occasioned by the negligence of defendant, which is a duly-organized corporation, owning and using the necessary poles, wires, and other appliances for the proper operation of its business of transmitting telephonic communications with lines extending through some seven counties of this state, including the county of Cayuga.

<p>Civil service law — Chap. 577 of 1893.</p> <p>A day laborer in the department of public work does not hold his position by appointment, receiving a salary from the city, within the meaning of chap. 577 of 1893.</p>

<p>Appeal from a judgment, entered on the direction of the trial judge, dismissing the complaint.</p>

<p>1. Benevolent society — Expulsion.</p> <p>■ A member of a benevolent society cannot be expelled, without the service of the notice prescribed by its constitution.</p> <p>2. Same — Mandamus.</p> <p>Where such proceeding for expulsion is invalid, the relator is entitled to a mandamus to compel his reinstatement as a member.</p>

<p>Vendor and purchaser — Title.</p> <p>The encroachment of the walls of a house about two and a half inches on a street and six-eighths of an inch on an adjoining lot, renders the title unmarketable.</p>

<p>1. Ne»li9b:nce — Elevator.</p> <p>The duty of providing trap doors to an elevator shaft is owing to every one who may be lawfully on the premises ; and its fulfillment is not dependent upon the action of the department of buildings or the fire department.</p> <p>3. Same.</p> <p>Where the building is let to different tenants, such duty falls upon the owner, and not upon the occupants separately or collectively.</p>

<p>1. Master and servant — Compensation.</p> <p>Under an agreement by defendant to render services to plaintiff for twenty per cent, of the net profits of the latter’s business, to be paid at the termination of the contract, and to receive $40 per week, to be charged on account of his share of such net profits, the defendant is entitled to the $40 per week without regard to the profits or losses of the business and at the expiration of the agreement the amount received is to he charged against the profits.</p> <p>3. Istjukctiost— Rustrainins actioju</p> <p>An injunction, at the instance of the defendant, will not lie to restrain an action for the reason that he has a counterclaim exceeding the jurisdiction of the court or that the plaintiS is impecunious, where the counterclaim existed at the time the contract sued on was made.</p>

<p>1. Will — Power of alienation.</p> <p>A provision in a will, which attempts to create a trust in the executors, to receive the rents, issues and profits of the real and personal estate, and deposit the said income in a savings hank until the expiration of ten years from the death of the testator, unlawfully suspends the power of alienation.</p> <p>2. Same — Void clause.</p> <p>A void clause, which cannot he separated from the general scheme of the will without defeating testator’s intention, avoids the whole will.</p>

<p>Appeal — Direction op verdict.</p> <p>A judgment, .entered on a verdict directed by the court, will not be disturbed on an appeal solely therefrom, where the appeal book does not contain the testimony taken on, or the rulings of the court, during the trial, o</p>

<p>Pleading — Amendment—1Terms.</p> <p>Where, on an appeal to the court of appeals the complaint was held to be defective, but the plaintiff brought the case on for trial again without asking for leave to amend, a subsequent application for leave should be granted to plaintiff to amend on the trial only on the condition of his paying the cost of the action, including the costs of the general term, where the amendment involves a radical change of the cause of action and the plaintiff is wholly insolvent.</p>

<p>Surrogate — Death.</p> <p>Upon the office of the surrogate becoming vacant, either by death of the incumbent or upon the expiration of his term of office, his successor has power to take up an unfinished matter where left by his predecessor, continue the proceeding, hear additional testimony that any party interested may offer, and, upon the whole evidence, file a decision which shall contain findings of fact and conclusions of law.</p>

<p>1. Mortgage — Chattel—Validity.</p> <p>The validity of a chattel mortgage is not, so long as the debt is valid, affected by the fact that a previous chattel mortgage to secure the same debt contained provisions which rendered it void as to creditors.</p> <p>3. Same — Sale of chattels.</p> <p>A sale by the mortgagor of some of the mortgaged goods, where it was not done pursuant to an agreement between him and the mortgagee, does not invalidate the chattel mortgage.</p>

<p>Excise — License—Schoolhouse.</p> <p>A person may be licensed to sell liquors in abuilding within the prohibited distance, where liquors have been sold, in such building continuously for many years before the passage of chap. 401 of 1892, under licenses to various persons, and the right is not restricted by the statute to the person who held the license at the time the act was passed.</p>

<p>Covenant — Beam right — Incumbrance.</p> <p>A beam right in favor of adjoining premises, to continue until the wall of the servient building is destroyed in any manner or torn down for the purpose of rebuilding, is an incumbrance.</p>

<p>Specific performance — Default—Excuse.</p> <p>Where the plaintiff failed to perform at the time fixed by the agreement, specific performance of a contract to exchange land will not be decreed, unless he satisfactorily excuses his default.</p>

<p>Contempt — ¡Fine—Supplementary proceedings</p> <p>Under section 3385 of the Code, a person, adjudged guilty of contempt, in not appearing and submitting to an examination in supplementary proceedings, can be fined only the costs of the proceedings. '</p>