Volume 69 — New York Miscellaneous Reports

<p>Trial upon return to writ of certiorari heretofore issued herein to review the 'assessment of relator’s special franchises in the city of New York for the year 1908, made hy the State Board of Tax Commissioners.</p> <p>The relator is a consolidated company, resulting from the consolidation of New York and Jersey Railroad Company, Hoboken and Manhattan Railroad Company and Hudson and Manhattan Railroad'Company, which consolidation was effected in December, 1906.</p> <p>In 1891 the State, by patent, granted to the Hudson Tunnel Railway Company, its successors and assigns, “ a right of way 160 feet in width .and 40 feet in height within which to construct four tunnels for the use and operation of the railway of said company beneath the waters of the Hudson river, rip on and .along the route of said railway between the City of New York in the State of New York and the City of Jersey City in the State of New Jersey.” This tunnel was but partially bored when all the rights -of the tunnel company were acquired by the New York -and Jersey Eailroad Company.</p> <p>On July 2, 1902, the board of rapid transit commissioners for the city of New York granted to New York and Jersey Eailroad Company the right to construct and operate ■a railway, including two tracks, on the route beginning at the boundary line between the States of New York and New Jersey under the Hudson river, substantially opposite the foot of Horton street; thence running under the river, piers upon the shore thereof, and under various public streets of the city o-f New York to a terminal in the city of New York in the westerly half of the block bounded by Christopher, West Tenth and Hudson streets.</p> <p>By like certificate, dated February 2, 1905, the same commissioners authorized this company to extend its railway, beginning at the terminus previously authorized; thence under Christopher street to Sixth .avenue; thence with one branch under Sixth -avenue to the terminal at or near Sixth avenue ,and- Thirty-third street, with another branch diagonally crossing under Sixth avenue to Hinth street; thence easterly under Hinth street to terminal station at the intersection of Fourth avenue -and Hinth street, to connect with the city subway at that point.</p> <p>The compensation to be annually paid to the city by the agreements set up in the relator’s report, filed with the State Tax Commission, was stated to be about $33,050 for these franchises.</p> <p>Hovember 24, 1903, the same commissioners granted a franchise to Hudson and Manhattan Eailroad Oompa-ny to construct -and operate a railway on a route beginning on the boundary line between the States of New York and New Jersey under the Hudson river, at a point nearly opposite the foot- of Cortlandt street in the borough of Manhattan; thence under the river and dock property, under various public streets and under private property to -a .point in Cork landt street near Church street; thence'under private property and under Dey street, and through public streets westwardly to West street, and again under the dock or bulkhead property to the east bank of the Hudson; still westwardly under the Hudson river to a point in the boundary line between the States of New York and New Jersey, nearly opposite the foot of Fulton street.</p> <p>The annual compensation for all franchises to be paid the city exceeded $48,000.</p> <p>All these franchises were granted in perpetuity, but periods of twenty-five years were set for modification of tbe various terms of compensation, and stringent limitations on their exercise were made by the city- Each franchise assumed that the earnings of the property covered by the franchise granted would amount to a- gross of $300,000 annually, making a-total gross of $900,000 as the estimated earnings of the tunnels in New York.</p> <p>Each certificate assumed poWer on the part of the city to grant a franchise under the waters of the Hudson river to the New Jersey line.</p> <p>In the year 1907 the franchise of 1905 was modified by consent of both parties, but no change whatever, as late as 1907, was made in the estimated gross earnings of the railroad company.</p> <p>On June 26, 1907, the board of estimate and apportionment authorized the relator to construct, maintain and use an overhead bridge over and across Dey street between Church and Greenwich streets, to connect the buildings owned by the company on both sides of Dey street.</p> <p>On December 31, 1907, the relator had a planned tunnel system within the States of New York and New Jersey of twenty-five .and one-tenth miles in length.. . Within the city and State of New York there were projected nine and eight-tenths miles of this system. Through traffic from downtown to uptown New York was planned via Jersey City and Hoboken.</p> <p>The larger part of the expenditure upon the tunnels had been and was to be made within the State of New Jersey, because of connections there to be made with the great trunk lines whose terminals were upon the westerly hank of the Hudson river.</p> <p>The twin tunnels built under these franchises were known, respectively, as the “ Uptown ” and “ Downtown ” tunnels. The downtown tunnels were in no sense completed. The uptown tunnels were in part completed, but not yet ready for operation. The percentage of tunnel constructed within the State wasi four and four-tenths miles. Ho earnings had been obtained by the tunnel company on this date. The first operation of the uptown tunnels for hire was in February, 1908, and not within the taxable year.</p> <p>The local assessors assessed all of the tangibles of relator for the year 1907, covered by these franchises, at $2,525,000.</p> <p>The special franchises of relator for the year 190® were, in 1908, assessed by the State Tax Commissioners, tentatively, at $6,900,000. The relator duly filed a protest, which .protest was overruled, and final assessment was made by the S'tate Tax Commissioners at the same amount. Eelator sued out a writ of certiorari in this court. Upon return thereto Mr. Lewis E. Carr, Jr., was appointed referee to take testimony. This testimony, with relator’s proofs filed'before the commission, was submitted finally to this court at a Special Term held in Albany county.</p>

<p>Highways — Change of grade — Damages: Appraisal — Procedure: Commissioners— Qualifications; Duties; Official oaths: Award — Amount.</p> <p>Commissioner® appointed to appraise the dam-ages to be paid for a change of grade of a street in the city of Buffalo should view the premises as a body and not individually, but viewing the premises individually is an irregularity, only and not a jurisdictional error.</p> <p>The fact that one of the commissioners is not a freeholder of the city of Buffalo, as required by the statute, is an irregularity and not a jurisdictional defect; and an objection to his qualifications cannot be raised for the first time on the motion to confirm the commissioners’ report.</p> <p>Nor will the fact that one of the commissioners is a nominal party to the proceeding, where he has, in fact, no interest in the award and was not a = necessary or proper party at the time of his appointment, invalidate the proceeding, where all the parties knew of his relations to it when he was appointed and fully ■acquiesced therein.</p> <p>The failure of the commissioners to take'an oath “to ascertain ■and report the just compensation to he paid to the owners of, and parties interested in, the lands for taking the same or for injury thereto, to the best of their ability,” as required by the statute, although they were sworn to “ faithfully discharge the duties of the office of commissioner to the best of their ability,” is, however, fatal to the proceeding, where no waiver by the parties of the statutory oath appears.</p> <p>An award in excess of the estimates of the city’s - witnesses should not he set aside as insufficient unless shown to be palpably unjust.</p>

<p>Appeal — Judgments and orders appealable — From Marine or City Court of New York — Particular actions and proceedings — Order reducing fine of delinquent juror.</p> <p>Jury — Selection, attendance, discharge and compensation — Disobedience to subpoena — Punishment.</p> <p>Where an order is served .upon a delinquent juror to show oause why the payment of a fine imposed upon him for Ms failure to appear in pursuance of the subpoena of the commissioner’ of jurors in the city of New York should not be enforced, and upon the hearing the fine of one hundred dollars previously imposed is reduced to fifty dollars by the order of the court, the court has exhausted its powers and may not afterward entertain a motion by the delinquent juror to reduce and set aside the fine; but the remedy of the delinquent, if he feels aggrieved by the order, is to appeal therefrom.</p>

<p>This matter comes np on a motion on the part of the petitioner to confirm the report of the commissioners heretofore appointed to determine the necessity of a proposed alteration in a highway situate partly in the town of Monroe and partly in the town of Chester, and a motion on. the part of the town of Chester to vacate the report of said commissioners.</p>

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

<p>Heaking of application for writ of peremptory mandamus.</p>

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

<p>Application for an order to change the name of the petitioner.</p>

<p>Sunday— Sunday sports — Baseball.</p> <p>The playing of baseball on Sunday between members of professional teams, in a recreation park controlled by a corporation which operates one of the teams as a business enterprise, is a violation of sections 2143 and 2145 of the Penal Law, though no admission fee be charged; and the sheriff will not be restrained by injunction from preventing such playing.</p>

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

<p>Rewards — 'Prizes — Determination of association offering prize conclusive— Review by court.</p> <p>In all sporting contests conducted by associations, the decisions of the officers and tribunals constituted by the association for the purpose of deciding questions arising under the rules governing the contests and the question of who is the winner, in the absence of fraud and where there is evidence on which their findings may be based, are final and not subject to judicial review.</p> <p>The court may not disturb such a decision unless the case is so bare of evidence to sustain it that no honest mind could reach the same result.</p>

<p>Chattel mortgages — What constitutes default — Maturity of obligation — Installments.</p> <p>A breach of an agreement to pay money in installments is not a breach of the entire contract and will not permit recovery of all the damages in advance.</p> <p>Where a chattel mortgage, given to secure the payment of twelve •promissory notes as the same become due, simply provides that in case default shall be made in the payment of the principal sum it shall be lawful for the mortgagee to seize the mortgaged property, the mortgagee is not entitled to possession of the mortgaged property under a writ of seizure until the last note becomes due and payable; as,-upon such default alone, the right to seize the property becomes absolute.</p>

<p>Security for costs —Persons who may be required to give — Infant suing by guardian.</p> <p>A resident guardian ad litem suing in behalf of non-resident infants for funds in the hands of defendant as their trustee must be presumed to be a competent and responsible person and will not he compelled to give security for costs.</p>

<p>Corporations — Rights of stockholders and actions by them — In general — Right to inspect books of corporation.</p> <p>Estoppel — Equitable estoppel and estoppel in pais — Facts creating estoppels — Ratification and affirmance — Participation in acts.</p> <p>Two directors of a corporation claiming to be the only persons interested in it may not deny to the third director the right to examine the corporate books on the ground that he is without interest in the corporation and a mere dummy put forward by them because the statute required three directors.</p> <p>A clause contained in an order to show cause why the relator, the third director, in such a case should not be permitted to examine the corporate books, staying defendants from removing relator pending the proceeding, is not an injunction within the meaning of section 305 of the General Corporation Law, nor does it suspend the general and ordinary business of the corporation but it is of doubtful efficacy.</p>

<p>Discovery and inspection — Examination of party before trial — Procedure — 'Enforcement of order.</p> <p>Stay of proceedings — Interlocutory stay — Stay to enforce obedience to order.</p> <p>A resident of Vermont w-ho brings an action for libel in this State against one of its citizens may be required to obey an order for his examination before trial made known to him by service upon his attorneys, before being permitted to try the case.</p> <p>A stay of proceedings in the action is a proper remedy for the enforcement of plaintiff’s duty to obey the order for his examination before trial.</p>

<p>Motion to strike out certain words in a defense as irrelevant and redundant.</p>

<p>Motion to require referee to deliver up case as settled without further compensation.</p>

<p>Civil service —■ In general — Subdivision of eligible lists — Discrimination between males and females — Validity of appointment.</p> <p>The board of education of the city of New York has a wide discretion in determining whether a -given position shall be filled by a man or a woman.</p> <p>The rights of a female teacher of the public schools of the city of New York who held a “ Grade A” license on the 1st of Rebru■aa-y, 1898, are not impaired by making separate eligible Lists for •male and female teachers, nor by the appointment of a male teacher of a lower relative standing to a position which, in the exercise of a reasonable discretion, the board determined should be filled by a man.</p>

<p>Action on subscription contract for books.</p>

<p>Deeds — Delivery — Death of grantor before actual delivery.</p> <p>Where a person signs and seals a deed of real and personal property and delivers it to a person other than the grantee to be held by him until after the grantor’s death and then delivered to the grantee, and in the deed undertakes to transfer all the personal property he owns at the time of signing it “ or that may take the place thereof at the time of my death ” and also makes the transfer subject to the condition that the grantee shall pay his debts and funeral expenses and certain sums to individuals designated against whom he further provides there shall be no charge or claim made by his estate, and there are no contractual relations between the parties to the deed and the grantee has no knowledge of the execution of the instrument, the grantor must be held to have attempted to bring about results which could be accomplished only through the medium of a will, and the instrument must be held inoperative as a deed.</p>

Action for an injunction to restrain defendant corporation from employing plaintiff’s drivers for the purpose of securing plaintiff’s trade and for damages.

<p>Constitutional law — Privileges and immunities of citizens and equal protection of laws — Discrimination against particular classes of persons — Doctors of osteopathy.</p> <p>Doctors of osteopathy are not denied the equal protection of the laws nor are they unlawfully discriminated against by an ordinance of the board of health of the city of New York requiring, as a condition of the granting of a transit permit for the removal or burial of the remains of a deceased person, a certificate signed by a physician on whom has been conferred the degree of doctor of medicine; since, even if the theoretical education of a doctor of osteopathy be of a standard equal to that of doctor of medicine, after he enters on his profession his practice is so restricted that it does not appear he can make the tests by which alone many diseases can be certainly detected.</p>

<p>Abutting owners — Rights and liabilities in general — Extent oí abutting owner’s rights m street.</p> <p>Where the rights of the public in a street of which it does not own the fee depend upon no record of its laying out, dedication or acceptance, hut upon user only, and the successors of the ancient owners of the land over which the street is laid have, time out of mind, maintained pipes beneath its surface to carry water to their dwelling-houses and other buildings from a spring on the side of the street, it must he held that the public acquired their rights subject to the maintenance of the pipes by the owners thereof and the right to convey the waters from the spring, and that such pipes do not constitute an encroachment upon or obstruction of the street or interfere with the use of the same by the public, and that the municipality cannot lawfully remove the pipes, though it may acquire them by purchase from tlve plaintiffs or by condemnation proceedings for the purpose of establishing a municipal system of water supply.</p>

<p>Motion by plaintiff for a new trial upon the court’s minutes after a verdict of no cause of action.</p>

<p>Proceedings to register and confirm title pursuant to the Land Registration Law (Real Property Law, article 12).</p>

<p>Principal and agent — Rights and liabilities of principal as to third persons— Rights and liabilities as undisclosed principal — Liability of undisclosed principal on contract; Effect of election to hold agent.</p> <p>Where an agent contracts under seal for the erection of a building on the laud of liis principal, and the contract does not purport to be made by the principal or disclose that it was made for the benefit of another than the agent, the contractor may not recover thereon against the principal.</p> <p>Whether, in ease an action might have been maintained upon the contract against the principal, the act of the contractor in prosecuting to judgment an action thereon against the agent would be an election on his part, concluding him from thereafter maintaining an action against the principal, quaere.</p>

<p>Action to obtain construction of will.</p>

<p>Action for the construction of a will.</p>

<p>Appeal from a judgment of a justice’s court entered upon the verdict of a jury.</p>

<p>Canals — Acquiring land — Necessity — 'Judgment of State Engineer not conclusive.</p> <p>The judgment of the State Engineer is not necessarily conclusive upon the State as to the necessity for the appropriation of lands for canal purposes; and, where he goes outside the line of the canal, as fixed by the plans finally approved by the canal board, and appropriates land that will not be occupied or used by the State, bis appropriation of such lands is unauthorized.</p> <p>No claim can be maintained against the State for lands covered by such an 'appropriation, although at the time it was made a change of the original plans was contemplated, which, however, was never approved or assented to by the canal board, though such change would have required all the lands involved in such appropriation.</p>

<p>Contracts — Interpretation of contract — General rules of interpretation — Effect of reference to other documents.</p> <p>Forests — Cutting timber — Restrictions upon'successive cuttings.</p> <p>Sales — Interpretation and evidence of contract — Sale of timber to he cut by buyer.</p> <p>Where an agreement to sell all the spruce, balsam and hemlock timber oil a certain tract of land, suitable for pulp or timber, of the size of eight inches at the stump and upwards, to be cut and skidded on or before a certain subsequent date about twenty months later, refers to a previous deed to the State of the tract in question, which reserved the wood down to and including the timber of eight inches at the stump, to be cut in seven years from tlie date of the deed, which period would expire at tlie same time fixed by the agreement of sale for the removal of the timber by the purchaser, the contract of sale may be construed as intending to soil all the timber mentioned which might have attained the specified diameter when tlie land was out over at any time before the right of removal expired, and not merely such as might have tlie specified diameter at the time of the sale; and, where such a construction has been placed upon the contract by tlie acts of tlie parties, tlie construction of the parties should be adopted by tlie court.</p> <p>The words “ at the stump,” as employed in said contract, should be construed to mean tlie point at which the tree would be cut and not, following the statute (Laws of 1897, eh. 220, § 7), three feet above the ground.</p> <p>Tlie agreement is also to be construed as intending only a sale of so much of tlie timber described as could be “ out and skidded ” in tlie form of logs of a size suitable for driving by one of tlie water routes available, and not as including short logs which might be obtained from the tops of trees, although of sufficient diameter and suitable for pulp wood.</p> <p>The deed to the State reserved balsam and hemlock, as well as spruce, although tlie law (chapter 220, Laws HS97) relating to purchases of lands by the State at that time permitted only the reservation of spruce timber; but a law permitting the reservation of all soft timber was passed in 1901 and is still in force. Under such circumstances, tlie State, never having acquired the soft timber on the tract in question, the present sale cannot be affected thereby but should be held to extend to all the timber described.</p> <p>The provision of the agreement and of the statute (Forest, Fish and Game Law, § 61), prohibiting the lands from being out over more than once, does not mean that under a reservation the owner cannot go within the limits of a former cutting, if within the outside limits of the same he has left considerable tracts upon which he cut no trees at all, the intention of the statute being to prohibit a second cutting upon territory which has once been cut down to the prescribed limit of diameter.</p>

<p>Intoxicating liquors — Granting license —Amount of tax —Ascertaining population.</p> <p>Population is to be determined, for the purpose of fixing the liquor tax in any place, by the latest State census; and recourse to the United States census is only to be had in the absence of an enumeration by the State.</p> <p>Tlie provision of subdivision 7 of section 11 of chapter 312 of the Laws of 1897, added thereto by chapter 367, Laws 1900, that the amount of excise tax in every place shall remain as assessed for the' year 1899 until changed by an enumeration authorized by the State Commissioner of Excise or by an increase or decrease of population shown by a subsequent State or United States census, must he interpreted to mean as shown by the United States census, in the absence of a State census.</p> <p>The provision of chapter 442 of the Laws of 1897, relating to “ cities containing a population of fifteen hundred thousand or more, which are or shall be formed by the consolidation of territory situate in one or more counties,” and now substantially embodied in subdivision 8 of section 8 of tlxe Liquor Tax Law, must be given effect and is controlling for Brooklyn.</p>

Proceeding for revocation of a liquor tax certificate on the ground that the application therefor contained a false statement.

<p>Application for the appointment of commissioners in condemnation proceedings to acquire land necessary to a change in a grade crossing of a railroad.</p>

<p>Trial of issues raised by petition, writ of habeas corpus, return and reply.</p>

<p>Wbit of babeas corpus.</p>

<p>Highways — Establishment of highway by statutory proceedings — In general — Petition and notice — Sufficiency of petition.</p> <p>A petition for the appointment of commissioners in proceedings to lay out a highway extending into two towns in different counties, which does not show that the town superintendents of both towns have met on five days’ written notice and have been unable to agree and have duly certified thereto, confers no jurisdiction on the court to appoint such commissioners.</p>

<p>Motio-k for peremptory writ of mandamus.</p> <p>Motions to strike out certain allegations from moving papers.</p>

<p>Bail in civil actions — Return or application of deposit made in lieu of bail: Return to third person who made deposit — Application in satisfaction of judgment.</p> <p>Where a judgment debtor deposited fifij' dollars with the sheriff to -avoid arrest under an attachment issued for failure to answer contempt proceedings, instituted upon the debtor’s default in supplementary proceedings, but no statement was made or written •direction given concerning the title to or the manner in which the money was to be refunded if the debtor subsequently became entled to tlie return thereof, the judgment creditor is entitled to an order directing the payment of the money to him in reduction of his judgment.</p>

<p>Place of trial — Change of .place of trial — Demand — Necessity and sufficiency of demand.</p> <p>The provisions of section 986 of the Code of Civil Procedure are not directory merely, but the demand they prescribe is a necessary condition precedent to a change of the place of trial to the proper county upon a motion for that purpose.</p> <p>A demand by defendant to change the place of trial upon the grounds stated in section 982 of the Code of Civil Procedure is not sufficient upon which to found a motion to change the place of trial upon the grounds stated in section 984, and the omission of the defendant to state the latter grounds in Iris demand is a waiver ■thereof.</p>

Motion by defendant in an action for libel to require plaintiff to elect one alleged libelous statement in three of six alleged causes of action.

<p>Motion by defendant Samuel Matthews to strike case from the trial calendar upon the ground that, the action being in partition, the plaintiff had waived the right to a jury trial by entering into -a stipulation with the other defendants, “ that- the issues of fact herein be tried before the court without a jury at the May Term, 1910,” and could not, therefore, notice -the issues for trial by jury and that plaintiff could not by motion at the opening of the term have certain questions of fact stated for jury trial at that term, under sections 970 and 1544 of the Code of Civil Procedure, without having first served -a notice of trial of such questions.</p>

Ae plication for an injunction to restrain tbe enforcement of chapter 348 of tbe Laws of 1910. The action has been discontinued as against the defendant Baker since argument.

<p>Motion by purchaser at foreclosure sale to be relieved from purchase because of defects in the title to the premises.</p>

<p>Judicial sales — Grounds for refusing to complete title or authorizing discharge from bid and proceedings — Effect of statements by parties.</p> <p>Partition — Sale and proceedings thereafter — Relieving purchaser.</p> <p>Where at a -partition sale it is stated on behalf of -the parties entitled to two-thirds of the purchase money that they would take a mortgage for sixty per cent, of the purchase price, which they refused to do, the purchaser will be relieved though the statement was not sanctioned by the referee nor embodied in the terms of sale; but a resale will bo -ordered only on condition that the purchaser, who delayed asking to be relieved until motion was made to compel him to complete his purchase, pay the costs of the resale and one-third of the interest for the period of his delay.</p>

<p>Stipulations — Enforcement of stipulation — Enforcement in principal action.</p> <p>The stipulations made by the .parties to an action for tin; government of their conduct or the control of their rights on the trial, if reasonable and not contrary to good morals or sound public policy, will be enforced by the courts.</p> <p>Where the parties,- including tlie church officers, to an action which involves the future control of the church stipulate in open court that their respective attorneys and counsel and the referee and secretary named in the injunction order based on said stipulation should be paid for all their services in the action and -proceeding out of the treasury of the church] such stipulation is valid and enforceable and is a waiver of the right to -a trial by jury; and thereunder -the court in the same action has power to take testimony as to tlie value of such services and enforce its order directing payment therefor from the treasury of the church in an amount determined by the court.</p>

<p>Action for goods sold and delivered.</p>

<p>Corporations: Who may question corporate existence — Estoppel to deny corporate existence — Estoppel of shareholders or incorporators: Eights of stockholders and actions by them — In general: Interest of individual corporators in corporate assets; Right of shareholders to sell or transfer corporate assets; Rights of minority stockholders — Right to dictate policy of corporate action.</p> <p>Where a corporation, after the expiration of its legal existence, maintained unchallenged a ele facto existence and organization, the plaintiff, in a stockholder’s •action brought not to avoid a conveyance of realty made by the directors in fraud of the corporation but to recover damages sustained by the corporation in consequence of such fraud, having thus recognized the corporate existence, is estopped from questioning corporate acts otherwise valid, on the ground of the expiration of the legal existence of the corporation.</p> <p>A stockholder has no right to an individual share iof the assets on the winding up of the business of ilie corporation, but only a right to participate in the proceeds of a sale.</p> <p>At common law neither the directors nor a majority of the stockholders have power to sell or otherwise transfer all the property of a going, prosperous corporation as against the dissent of a single stockholder; but, where the corporation is without available capital and without the means of procuring it and with its (te jure corporate existence at an end, where the further prosecution of its business will he unprofitable if not impracticable, a vote of the majority of the stockholders for a sale of the corporate property and the close of the business of the corporation is justified.</p> <p>A single stockholder has no right in law to set up his judgment against the judgment of his associates and dictate the policy of the corporation acting within its corporate powers.</p>

<p>Indians: Tribal status: Indian lands — Rights pending extinguishment of Indian title: Actions by or against Indians — Costs.</p> <p>By the patent granted in 1 OSt> by Governor Dongan to- the freeholders and inhabitants of blast Hampton, wherein, after reciting-that a part of the tract of land called Montauk Point remained as yet unpurchased of the Indians, he granted to the said inhabitants the tract now called Montauk with the -perpetual and exclusive right to purchase the same from the Indians, said inhabitants became the owners of the land subject to the Indian right of occupancy and secured the exclusive right to extinguish the Indian title by purchase.</p> <p>Many years ago the Indians abandoned North Neck and moved to a field between Great Pond and Oyster Pond containing about 1,200 acres which was fenced in according to agreement and is known as Indian Field and for nearly 200 years the Indians and their descendants have lived thereon and by a long course of dealing the inhabitants of East Hampton without dispute have recognized the rights of the Indians and treated with them as if their occupancy were tribal. In 1885, B. purchased the fee of said field subject to tbe Indian rights which lie thereafter acquired by purchase. In an action brought by the chief of the Montauk tribe of Indians to ascertain, define and enforce the rights of the Indians to said field, held:</p> <p>The right to extinguish tlie Indian title which -accompanied the grant of the fee of the land contained in the Dongan charter was a right of property.</p> <p>The provision of the Constitution of 1777, section 37, forbidding the purchase of Indian lands, did not operate to terminate the rights granted 'by the Dongan charter, as said Constitution also provided that nothing therein contained should be construed to affect any grant of land witliin the State made by the authority of the King nor to annul any charter to bodies politic by him.</p> <p>After the adoption of the Federal Constitution the State of New York was without power to impair the grant of lands contained in the Dongan charter and the right to make said grant effectual by extinguishing the Indian rights.</p> <p>The act of March, 178S, enacted to carry out the constitutional ■prohibition against purchasing from Indians, is no broader in its application than the constitutional prohibition itself, which did not affect the right granted by- the Dongan charter; and said statute of 1788 was not intended to and did not deprive the freeholders of East Hampton of their right to extinguish the Indian title.</p> <p>The authorization of the Dongan charter permitted the purchase of the Indian rights by B. who was the successor in interest of the freeholders of Bast Hampton and the purchase and 'extinguishment of the Indian rights of occupancy by B. were legal and binding on the plaintiff.</p> <p>There is now no tribe of Montauk Indians.</p> <p>As the Indians are wards of the Stale and this action was authorized by an enabling- act passed in X9-06, costs should not be imposed on tlie plaintiff'.</p>

Action to enjoin defendants from destroying and interfering with plaintiff’s railroad bridge across the Seneca river, without making compensation to plaintiff therefor, and for other relief.

<p>Contracts — Interpretation of contract — Particular agreements — Agreements establishing limitations of actions.</p> <p>Principal and agent — Mutual rights, duties and liabilities — Accounting to principal and reimbursement of agent — Construction of agreements relating to — Agreements establishing limitations of actions.</p> <p>A provision in an agreement between an insurance company and its -agent, that no suit shall be maintainable until ten days after service upon th-e president or secretary of the company by registered letter of a written claim, is to -be construed as intended to permit communication with distant agents by -mail but not to restrict them to demands by mail -only; and where, in an action !by the agent to recover moneys overpaid the company by mistake, it is alleged in the complaint that repayment of -moneys alleged to have been overpaid has been duly demanded, an answer setting up such provision of the agreement between the parties is insufficient in law upon the face thereof.</p> <p>Nor is such an action within the scope of a provision in the said agreement that no suit relating to the employment of -said ■agent shall be brought after six months from the date of the ■transfer of the business of said agent.</p>

<p>Partition — Procedure for partition — Real property partible in single action — Property owned in common by all owners.</p> <p>Partition can be sought in one' action of only such separate parcels of land as are owned in common by all the owners, each defendant having an interest in each and every parcel.</p>

<p>Actioh for construction of will and for accounting.</p>

<p>Action- for construction of will.</p>

<p>Damages — Liquidated damages — When contract construed as providing for liquidated damages.</p> <p>Municipal corporations — Contracts — Forfeiture of deposit made by bidder.</p> <p>Where a municipal corporation advertised for sealed proposals for laying a line of water pipe and that no bid would be received unless accompanied by a certified check or draft payable to the order of the city treasurer for five per cent, of the total amount of the bid, and a bid was duly made accompanied by the required check and the contract was awarded to the bidder but the bidder would not enter into the contract and by reason thereof the municipal board of contract declared the deposit forfeited and contracted for the work with a higher bidder, the former bidder cannot thereafter recover the deposit represented by his check from the city.</p> <p>Under such circumstances, the deposit should be regarded as made under a contract liquidating damages for a breach on the part of tbe bidder at tbe amount of the deposit; and, in an action to recover the deposit, it is not necessary for the municipality to prove actual damages, but substantial damages will be presumed in the absence of evidence to the contrary.</p>

<p>Claim against the State for compensation for lands appropriated.</p>

<p>Tins is an appeal from an order of the City Court of the city of New York staying the proceedings.upon the judgment entered in this action .and on the judgment of affirmance thereof and also all proceedings in an action commenced in that court on the undertaking given on appeal, until the hearing and determination by the Appellate Term of an application to he made for leave to appeal to the Appellate Division; and, in the event of the refusal by the Appellate Term to grant such leave, then until the refusal by a justice of the Appellate Division to grant the permission to appeal; and, if the application is granted, until the hearing and-determination -of said appeal in the Appellate Division, if the appeal he taken and proper security he given.</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 plaintiff’s case.

<p>Appeal from an order of the Municipal Court of the city . of New York, borough of Manhattan, first district, setting aside and vacating the judgment entered upon the trial in favor of the plaintiff and .granting a new trial, upon exceptions.</p>

Appead from a final order in summary proceedings, entered in the Municipal Court of the city of New York, borough of Manhattan, ninth district, 'awarding possession of Ho. 11 West Thirty-fourth street to the petitioner.

<p>Landlord and tenant — Re-entry and recovery of possession by landlord— Summary proceedings — Statutory provisions— Where lease is given as a mortgage.</p> <p>Mortgages — Nature of mortgages — In general — Lease as mortgage. Summary proceedings — Persons who may bring proceedings — Where lease is given as a mortgage.</p> <p>The pledge of an interest in property will be construed as a mortgage though the parties may have designated the instrument of pledge as a deed or lease. • ' .</p> <p>Where a sublease given to secure a debt is subject to cancellation on payment, the sublessor to account for rents received and disbursements made, the relation of mortgagor and mortgagee is created and not that of landlord and tenant.</p> <p>That after default in payment of an installment of the debt the debtor agreed to pay the creditor the rent each month, the same to be applied upon the installment of the rent then due, does not change the relation of the parties; and the creditor is not entitled to maintain summary proceedings to recover possession of the premises.</p>

<p>Appeal by the plaintiff from a judgment of the City Court of the city of New York dismissing the complaint and from an order denying .a motion for a new trial.</p>

Appeal by the plaintiff from an order of the Municipal Court of the city of Dew York, borough of Manhattan, first district, setting aside .a judgment in favor of the plaintiff and ordering a new trial.

Appeal by the defendant Lordi from an order of the City Court of the city of New York granting plaintiff’s motion to .amend the complaint.

This is an appeal by tbe plaintiff from a judgment of tbe Municipal Court of tbe city of Dew York, borough of Manhattan, ninth district, rendered in favor of tbe defendant.

Appeal by tiro plaintiff from an order of the Oity Court of tbe city of Mew York staying proceedings upon the part of the plaintiff until! he pay costs in a former action dismissed in the Municipal Court of the city of Mew York.

<p>Accord and satisfaction: Effect of accord and satisfaction — As to certain provisions only: Sufficiency of performance.</p> <p>Where the owner of real property enters into a contract with builders for the reconstruction of the buildings standing upon it and the contract contains covenants to guarantee the roof, plumbing, elevator and heating plant and provides that such guaranties shall survive the completion of the building and all payments made under the contract; and, where disputes having arisen as to that part of the contract relating to the reconstruction of the buildings, such disputes were submitted to arbitration resulting in an award of $2,640 to the builders; and where the parties thereupon made a further agreement reciting these facts and providing for the assignment to the owners of certain guaranties the builders held relating to “the roof, elevator and other matters and further providing that, until the assignment and delivery of sueh guaranties to the owners, or in default thereof, the builders would continue to rely upon their original guaranty, in an action thereafter brought by the owner, held, that the latter agreement did not constitute an accord and satisfaction of the former agreement as to the guaranties contained therein and that the plaintiffs were entitled to recover thereon in the absence of proof by the builders that they had assigned and delivered to the owners the guaranties they held.</p>

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

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

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

<p>Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, dismissing the complaint.</p>

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

Appeal hy the plaintiffs from a judgment of the Municipal Court of the city of Pew York, borough of Manhattan, eighth district, rendered in favor of the plaintiffs.

Appeal by the landlord from a final order in summary proceedings dismissing his petition, entered in the Municipal .Court of the city of Few York, borough of Manhattan, fourth district.

<p>Application for writ of certiorari.</p>

<p>Certiorari proceedings to review an assessment on personal property for the purpose of taxation for the year 1910.</p>

<p>Reargument of motion to confirm referee’s report.</p>

<p>Condemnation proceedings. The opinion states the facts.</p>

<p>Eminent domain — Condemnation proceedings — Hearing of parties — Opening case for further proof.</p> <p>Where, in a proceeding to condemn land for street purposes, a property owner attends and proves his title but offers no evidence of the amount of bis damage, relying upon the proof offered by other owners, he is not entitled as a matter of right to a new trial of the question of the amount of his damage upon an objection taken to the preliminary report of the commissioners; and their refusal to receive his evidence on the question of value is not an abuse of discretion.</p>

<p>Condemnation proceeding. The opinion states the facts.</p>

<p>Pbooeeding to review a determination of the board of elections of the city of Hew York.</p>

<p>Hearing upon return to writ of habeas corpus.</p>

<p>Taxes—Inheritance and transfer taxes—Property and interest subject to—Property passing under power of appointment.</p> <p>Where a testator left a certain share of -his, estate to his executors in trust to pay over the income' to his son during life, remainder to vest on the son’s death in his lawful issue unless otherwise disposed of by the son’s will, and the son thereafter dies leaving a will bequeathing the remainder of the trust fund to his widow and four children, t-he transfer to the widow of one-lifth of the trust estate is under the son’s will and not under the will of the father; and, whore the personal representatives of the father’s estate made a temporary payment to cover the transfer tax on the trust fund before it was assessed, they have the right to recover back so much thereof as exceeds the tax on four-fifths of the trust fund, and the representatives of the son’s estate are liable to pay the tax on the remaining one-fifth and cannot claim that the temporary payment by the representatives of the father’s estate inure to their benefit, or that they are discharged from liability by -the repayment of the excess of the temporary payment to the representatives of the father’s estate.</p>

<p>Motion to confirm sale of certain merchandise.</p>

<p>Civil service — In general — Officers subject to the act — Confidential officers.</p> <p>The civilian male probationary officers to be appointed by the boards of city magistrates of the first and second divisions pursuant to section 96 of chapter 6'59 of the Laws of 1910 relating to the inferior criminal courts of the city of New York bear a confidential relation to the magistrates and are not required to be filled from an eligible list after a competitive examination pursuant to the Civil Service Law.</p>

<p>Motion for'a new trial.</p>

<p>Motion for a new trial pursuant to section 1010 of the Code of Civil Procedure.</p>

<p>Action upon a contract. The opinion states the facts.</p>

<p>Covenants for title — Performance or breach — Measure of damages; Remedies.</p> <p>Vendor and purchaser — Adjustment of rights after conveyance or rescission of contract — Remedy on mistake as to title.</p> <p>Where one assumes to convey the whole of certain premises and executes a conveyance thereof with covenant of seizin, though one undivided twenty-eighth part of the premises is owned at the time by a third party, the measure of the damage of the covenantee is one-twenty-eighth of the consideration paid, with interest, and not what it may have cost him to acquire the outstanding interest through his purchase thereof upon a sale in partition in a suit brought by him for the purpose.</p> <p>Whether, in such a ease, where the outstanding interest could not he easily purchased and so affected the title that the purchaser could not obtain a loan, sell the property, or build upon it, he might get relief in equity in au action to compel the grantor to close out the outstanding interest upon tendering hack a deed of the property and demanding the return of the purchase money, quaere.</p>

<p>Former adjudication — Who are concluded — Persons represented , by parties in general — Unborn children.</p> <p>Where the terms of an instrument purporting, to be a last will and testament created certain trusts in favor of the children and grandchildren of th<= testator, and directed that the property should be distributed at the end of the term among their issue, and, in an action to determine the validity of the probate under section 2653a of the Code of Civil Procedure, the instrument was held not to be the testator’s will, the judgment is conclusive upon unborn issue of such children and grandchildren where all persons m esse having an interest were made parties.</p>

<p>Action for a divorce.</p>

<p>Divorce — Defenses and excuses — Recrimination.</p> <p>The hasty words and violent deeds of a husband which might otherwise form the basis of an action for a divorce on the ground of cruel and inhuman treatment do not necessarily afford such a basis when committed by the husband in consequence of the wife having tantalized him into a temper, nor where the wife has been guilty of like words and deeds.</p>

<p>Divorce — Foreign divorces and allowances — Jurisdiction of foreign court — Constructive service against absent resident of a foreign State.</p> <p>Whore, after a husband and wife have lived together for six years in Vermont, the wife abandons lier husband and comes into this State and the husband obtains a decree of absolute divorce in Vermont, upon service of process upon the wife in this State where she was temporarily sojourning, pursuant to an order of the Vermont court, such judgment is valid and binding upon - the parties and a bar to a subsequent action by the wife for an absolute divorce in this State after the husband has married again.</p>

Actioh to recover the sum of $2,000 upon certificate of membership in Southern Tier Masonic Relief Association. Jury waived and cause tried hy the court.

<p>Application by referee appointed to sell mortgaged premises for instructions.</p>

<p>Action to foreclose a mortgage upon real estate.</p>

<p>Equity — Nature and grounds of jurisdiction — Equality of equities. Mortgages — Assignments of mortgages — Equities in favor of third persons.</p> <p>In 1905 defendants were the. owners of certain real estate encumbered by a $2,500 mortgage which, prior to April 24, 1909, was owned by one H and on said date was past due. In 1907 one E, an attorney-at-law to whom defendants had assigned a certain mortgage with directions to sell same, pay the H mortgage and turn over the balance to defendants, sold the assigned mortgage for $4,000, hut, by means of various statements, managed to keep the fact as well as the money concealed from defendants until early in 1909 when he stated to one of them who was importuning him to pay the H mortgage that it. could not he paid until the interest day, April 24, 1909, and that her money was well invested in trust funds. On April 23, 1909, E, as attorney for plaintiff, obtained from him $2,500 for investment in a good mortgage; on the same day he deposited a similar amount in a bank and on the next day he paid the H mortgage by his check on said bank for $2,562.50. An assignment of said bond and mortgage to plaintiff was delivered and duly recorded. Plaintiff turned over all the papers to E for safe keeping and received from him the first six months’ interest and never saw the papers again until the commencement if an action to foreclose the mortgage. Held, that the natural inference from the facts was that the mortgage was purchased with plaintiff’s money.</p> <p>As between plaintiff and defendants, each being the client of E, a fully trusted attorney-at-law, they whom he chose to defraud must suffer the loss unless the faithless attorney can be compelled to pay.</p>

<p>Action by wife to recover of husband for necessaries of herself and infant children purchased with her own money.</p>

<p>Landlord and tenant — Rights, duties and liabilities in regard to premises — Repairs, insurance and improvements — Covenant by lessee to rebuild.</p> <p>Waste: What constitutes waste — Erecting new edifice: Recovery for waste — Damages.</p> <p>Where by agreement between landlord and tenant it was provided that, if the demised premises were damaged or wholly destroyed by fire, the insurance moneys should be paid to the lessee to repair the damage or rebuild, and, if the lessor should neglect or refuse to pay such moneys to the lessee, the latter should retain the rent thereafter to become due until the amount thereof should equal such moneys, and the building on the demised premises is -insured and upon its destruction by fire the insurance moneys are paid to the tenant; and, where such building so destroyed was a frame building which the tenant could not rebuild in consequence of the restrictions of the building code of New York city and he accordingly rebuilt that part of the building which stood on the front of the lot with brick without rebuilding the frame extension in the rear, the landlord is entitled to recover the difference between the cost of a building like the one destroyed and the value of the building actually erected.</p> <p>In such a ease, although the building erected by the tenant on the front of the lot differed substantially from the building destroyed, in the absence of any proof as to loss of rent that the landlord might have sustained during the time it would take to restore the premises to their former state, the -landlord is not entitled to recover damages on the ground that the erection of a structure of a different character constituted waste.</p>

<p>Motion for leave to issue execution.</p>

<p>Action by a wife for the annulment of her marriage on the ground of her physical incapacity.</p>

<p>Municipal corporations — Defective streets and bridges and places contiguous thereto — Particular defects and obstructions — Obstructions in street.</p> <p>The end of an iron pipe projecting upward about two and onebalf inches above a cement sidewalk and not shown to serve any useful purpose is a direct interference with the right of passage; and, in an action to recover damages for injuries sustained by one wlio stumbles on it and falls, it is a question for the jury whether an accident was reasonably to be apprehended from its presence.</p>

<p>Contracts — Validity of contracts — Contracts involving violation of positive statue — Contracts with insurance company.</p> <p>Negotiable instruments — Indicia or requisites — Unconditional — Statement of consideration.</p> <p>An instrument by which the person signing it promises unconditionally to pay another certain sums of money at certain specified times is a negotiable instrument, though coupled with an acknowledgment of'the receipt of a policy of insurance on the life of the maker, for the premium on which the instrument was given, and a request to' the general agent of the insurance company, who was the payee named in the instrument, “ to place the said policy in force from this date.”</p> <p>The Insurance Law as it stood in 1903 contained no provisions express or implied that a contract made or note given in payment for insurance premiums would he void or unenforceable in a ease where a rebate had been allowed.</p>

<p>Principal and agent — Rights and liabilities of principal as to third persons — Rights and liabilities dependent on manner of execution of power, etc.— Form of contract to bind principal or give him rights — Contract by agent under seal — When principal has received benefits.</p> <p>Where the owner of income paying buildings transfers them to a clerk or bookkeeper of a bank for the bank’s benefit to secure loans to enable the owner to complete the unfinished buildings, the owner may maintain an action to compel the bank to account for the moneys realized by it from, the income and selling price of the property, though the contract with the clerk or bookkeeper of the bank was under seal.</p>

<p>Wills — Interpretation and construction — Nature and quality of estates — Particular terms of doubtful meaning — Bequest “ to be distributed, ’etc.”</p> <p>Where a testator gives his residuary estate' “ to be distributed by executor in bis discretion or as may be hereafter mentioned in codicils or written additions to this will ” and dies without having made any codicils or written additions to bis will, the executor named in the will takes an absolute, general and beneficial power of disposition with respect to the residuary estate which vests him with the absolute title thereto, although be renounces as executor and letters of administration are issued to another.</p>

<p>Waters and water-courses — Subterranean and percolating waters—■ Obstruction and diversion — Actions — Burden and sufficiency of proof.</p> <p>Where a city for the purpose of obtaining a water supply acquires lands and sinks wells and pumps up the ground water percolating below the surface and thereby takes the water from contiguous lands of other owners to their damage, they may recover for the injuries done them and invoke the equitable powers of the court by way of injunctive relief.</p> <p>In an action brought by sueli an owner to recover damages, the burden is upon the plaintiff to prove that his lands were so within the influence of the operations of the city that water in his land was taken from it or water which would naturally have come there was prevented from coming.</p> <p>But where, in an action brought by such an owner, it does not appear but that the lowering of the ground water levels upon his property may be due to natural causes, and by reason of the distance of the city pumping stations it seems well-nigh impossible to find, in the operation of its pumps a cause of injury to his property, he has failed to sustain the burden resting upon him and bis complaint should be dismissed.</p>

<p>Forgery — Nature and elements of the offense — Offenses under Penal Code — Omission of merchant to keep books or make entries.</p> <p>The omission by a merchant to make any entry in his books of account of a sale of merchandise, although while in failing circumstances and shortly before being adjudicated a bankrupt in involuntary proceedings and for less than the goods cost him, does not constitute the crimé of forgery in the third degree as defined by section 515(3) of the former Penal Code (Penal Law, § 889').</p> <p>There is no law which requires tradesmen and merchants in mercantile business to keep books of account or which makes their failure to keep them a crime.</p>

<p>Motion to dismiss an appeal.</p>

<p>Counties — Board of supervisors — Powers in general — To impose penalty for prohibited use of highway — Sufficiency of legislation.</p> <p>Penalties — Actions for penalties — Parties — Plaintiffs—Failure of law to authorize persons to sue.</p> <p>A law passed by the board of supervisors of a county which imposes a penalty for its infraction, but neither authorizes any one to bring an action for its recovery nor provides for the disposition to he made of the penalty when recovered, is defective.</p> <p>In sueb a case, where the law relates to the use of the public highways, an action in the name of the town for the recovery of the penalty cannot be maintained.</p>

<p>Appeal from a judgment of a justice of the peace rendered in favor of defendant.</p>

<p>Appeal by defendant from a judgment entered against him in justice’s court.</p>

<p>Constitutional law — Provisions relating to public officers — Election or appointment to office — Choice by" lot in case of tie vote.</p> <p>Villages — Appointment, election and tenure of officers — Determination by lot in case of tie vote.</p> <p>Where, upon the canvass of the votes cast at an annual election of village officers, two different persons are found to have received an equal number of votes for the office of village president, and the board of trustees then in office neglects to determine by lot which of the two persons shall be deemed elected, in pursuance of section 53 of the Village Law, until the expiration of the term of office of such hoard, their successors in office may thereafter perform such duty, and the old board may not be ordered to reassemble for such purpose.</p> <p>'The provision of the statute for the selection of a village officer by the board of trustees by lot in ease of a tie vote does not contravene the provisions of section 2 of article X of the State Constitution, which requires all village officers whose ejection or appointment is not provided for by the Constitution to be elected by the electors of such village or of some division thereof, or appointed by such authorities thereof as the Legislature shall designate.</p>

<p>Eminent domain: Necessity of making compensation or of making efforts to purchase lands—Sufficiency of provision for compensation: Eights acquired by condemnation proceedings and liabilities assumed — In general — Extent of property affected—,A.s affected by description — Lands bounded on waters.</p> <p>The rules governing the construction of descriptions in grants of lands bordering on waters have no' application to proceedings in invilum,, but the petitioner’s acquirement is confined to the property specifically described and the right or interest definitely set forth.</p> <p>In proceedings by a municipal corporation under title 1, chapter 23, of the Code of Civil Procedure, to acquire title to lands for a public park, the municipality cannot be vested with title except upon payment of the sum appraised as the value of lands taken, and the owner cannot, therefore, be harmed by the possible inadequacy of the appropriation.</p>

<p>Election of officers: Nominations and preparation of official ballot — Certificate of nomination — Time for filing: Review by court — Questions considered — Relief from default.</p> <p>Where the day for the general election falls on the eighth of November and the Secretary of State, in the election calendar compiled by him pursuant to section 320 of the Election Law, states that the last day on which to file nominations in his office will be the tenth of October, and he actually receives and files certificates of nomination on that day, it will be held that certificates filed on that day are in time, though a strict mathematical computation of time would require their filing on the eighth of October.</p> <p>Where a certificate of nomination is mailed by- the proper officers of a convention to the Secretary of State so that in the ordinary course of the mail it would reach his office in time, but, for some unaccountable reason, it does not reach there until the following day, the Supreme Court may, under section 56 of the Election Law, relieve from the default.</p>

<p>Action to recover upon a bond.</p>

Motion by plaintiff on the minutes of the court to set aside tbe verdict and for a new trial on all the grounds permitted by section 999 of the Code of Civil Procedure.

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

<p>Fidelity bond — Remedies of the parties — Who may sue.</p> <p>A single creditor cannot maintain an action upon a surety company bond given by a private banker, conditioned upon his faithful transmission to foreign countries of moneys deposited with him for that purpose.</p>

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

Appeal by tbe -defendant from a judgment of tbe City Court of tbe city of Hew York, entered upon a verdict of tbe jury directed by the court in favor of tbe plaintiff, and from an order denying defendant’s motion to set aside tbe verdict, and for a new trial.

<p>Appeal by the plaintiff from a judgment of the City Court of the city of Dew York.</p>

<p>Appeal by tbe plaintiff from a judgment of tbe City Court of tbe city of New York.</p>

<p>Appeal by the defendant from an order of tbe Municipal Court of the city of New York, borough of Manhattan, first district, vacating and setting aside a judgment dismissing the complaint and ordering a new trial 'upon the ground that the dismissal .of the complaint was improper.</p>

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

<p>Municipal Courts: Procedure — -Motions: Review — Judgments and orders reviewable.</p> <p>" A justice of the Municipal Court of the city of New York may not vacate an order opening the defendant’s default because of the defendant’s subsequent failure to give a bond required as a condition of the granting of an adjournment.</p> <p>The Municipal Court is not, like a court of record, open at all times for the hearing of motions affecting actions therein; but motions can only be made at times pointed out by statute, or when the case is actually 'before the court for hearing.</p> <p>An order vacating an order opening defendant’s default is not appealable.</p>

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

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

Appeal by tbe defendant from a judgment in favor of tbe plaintiff, rendered in tbe Municipal Court of tbe city of Kew York, borough of Maubattau, third district.

<p>Reference — Jurisdiction and powers of referees and proceedings on reference — Effect of vacating order of reference.</p> <p>In a ease brought to trial before a referee over the objection of the defendant, during the pendency of an appeal from an order denying a motion to vacate the order of reference, where the order is finally vacated the proceedings before the referee are unauthorized; and a judgment entered upon his report is void.</p>

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

Appeal by the plaintiff from a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, fifth district, rendered in favor of the defendant after a trial before the court and a jury.

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

<p>This is an appeal from the judgment of a Trial Term of the City Court, entered upon a verdict by direction of tbe court, rendered at the close of the opening by the defendant, who took the affirmative, and prior to the decision of the court upon a motion made by the plaintiff to dismiss the counterclaim set tip in the answer of the defendant.</p>

<p>Taxes — Tax titles: Tax deeds—Presumption of regularity of sale — Unrecorded deed; Effect of curative acts — Jurisdictional defects or irregularities — Extension of tax without resolution — Assessment of lands as non-resident: Actions to try title or for possession; Right of action for possession — Defenses — Ownership of interest by State; Evidence —Facts inferable — Irregularity of cancellation.</p> <p>A deed given by the State Comptroller pursuant to the Tax Law of 1859, which has never been recorded in the clerk’s office of the county in which the lands are situated, raises no presumption of regularity. ,</p> <p>From the mere fact that upon the cancellation of a tax sale the refund was paid to the wrong person, it may not be inferred that the cancellation was irregular or void.</p> <p>The owner of an undivided one-half of a tract of land cannot maintain ejectment against the State, where it appears that the State is the owner of the other undivided half part of the tract.</p> <p>The fact that the tax for which the lot was sold was not extended upon the roll in pursuance of a resolution of the board of supervisors is not a jurisdictional _ defect but an irregularity, merely, which is reached by the curative provisions of chapter 448 of the Laws of 1885.</p> <p>The assessment of lands as nonresident lands which should have been assessed as resident lands is also an irregularity within reach of a curative act.</p> <p>The Statute of Limitations contained in chapter 448 of the Laws of 1885 began to run from the time that publication of notice of possession in the Comptroller was complete, and at the expiration of two years became a complete bar to an action against the State to recover the lands.</p> <p>The limitations of chapter 448 of the Laws of 1885 having run and constituted a bar to recovery, their effect is not destroyed by'the provisions of section 132 of chapter 908 of the Laws of 1896, but remains conclusive.</p>

<p>Taxes — Taxation of special franchises— Assessment — Valuation — Net earnings rule—Gross earnings, how ascertained—Allowances in computing net earnings.</p> <p>In estimating the value of the special franchises of a railroad company in a given tax district by the net earnings rule, where the company’s lines are operated in connection with others by a holding company, with a single set of general officers, power houses and repair shops, an apportionment thereof among the different lines operated upon the basis of ear mileage is permissible.</p> <p>In such a caso, however, where proof of actual gross earnings is given, they must be taken; and it is improper to adopt instead an estimate based upon the gross earnings of the entire system apportioned upon the basis of car mileage. Nor should amounts estimated in like manner for depreciation, obsolescence, power, repairs and other expenses of operation be taken in place of actual amounts where the latter are capable of being ascertained.</p> <p>The cost of engineering is one of the items that should be included in an estimate of the value of structures.</p> <p>An allowance for future obsolescence or inadequacy as distinguished from depreciation from ordinary wear is proper where it is capable of reasonable ascertainment.</p> <p>The franchises of a railroad may have a value which is effective to prevent its tangible property from depreciating to a mere junk value and yet may have no value upon which a franchise tax can be assessed.</p>