Volume 69 — New York State Reporter

<p>1. Evidence—Admissions in pleading.</p> <p>The rule that a party cannot contradict the admissions made in his pleading, does not apply where such a missions are ambiguous and are immediately preceded by an express denial of plaintiff’s claim.</p> <p>2. Pleading—General denial.</p> <p>Under a general denial, a defendant may controvert by evidence any-</p> <p>. thing which the plaintiff is bound in the first instance to prove, to make out his cause of action, or anything that he is permitted to prove for that purpose under the complaint.</p> <p>3. Same.</p> <p>Denials in an answer are not impaired by the allegations of new matter subsequently set forth.</p>

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

<p>Sunday—Selling soda water.</p> <p>Under sections 266, 267 of the Penal Code, the sale of soda water, sarsaparilla and the like on Sunday is unlawful, and one who engages therein may be arrested.</p>

The complaint is as follows: Plaintiff complains of defendant, and respectfully shows to this court: (1) That at the times hereinafter set forth the plaintiff was the owner of the premises Nos. 7 and 22 St. Mark’s place, in the city of New York.

<p>1. Contract—Rescission.</p> <p>If a party, who has the right to rescind a-contract, continues to treat the property as Ms own after discovery of the fraud, he will-be considered' to have elected to ratify it, and no action to disaffirm it will lie either at law or in equity.</p> <p>2. Injunction—Denial.</p> <p>Where the granting of injunctive relief might cause more damage to the defendant than the withholding of it will to 'the plaintiff, the rule is to deny the relief.</p> <p>3. Same.</p> <p>Where parties are of ample pecuniary responsibility, the remedy should be sought in an action, at law to recover damages for the wrong rather than by injunctive relief in equity.</p>

<p>1. Costs—Ownership.</p> <p>Unless there is an agreement to the contrary, a judgment for costs is presumed to belong to the attorney of the successful party.</p> <p>2. Contbact—Rescission.</p> <p>A party cannot rescind a contract withoút returning what he has received under it.</p>

<p>1. Deposition—Examination oe party—Physical.</p> <p>An order for the physical examination of a party, which directs the attorney to produce the party to be examined, is 'erroneous.</p> <p>3. Same.</p> <p>Such order must direct the party to be produced before a judge or referee, and not before a special term of the court.</p> <p>3. Sam®.</p> <p>Such order is erroneous where it directs an examination in less than five days after the service of the order, unless special circumstances are shown, as required by section 873 of the Code.</p>

<p>Master and servant—Appliance.</p> <p>A railroad employe who, with lull knowledge of a defective and unsafe appliance, a complete comprehension of his surroundings and with as much knowledge upon the whole subject as tbe company, attempts to remedy the defect and receives injury through the negligent act of a co-employe, assumes whatever of risk attends his act, and cannot hold the company responsible therefor.</p>

<p>Í. Assignment—Equitable.</p> <p>An order by a contractor upon the owner of a building, requesting the payment of a certain sum to a third person “ when the same is due by the terms of the contract,” constitutes an equitable assignment.</p> <p>2. Same.</p> <p>A written request by a contractor to the owner to pay money to a person named, “and charge the same to me,” is not an assignment but a mere order.</p> <p>8. Contract—Building—Construction.</p> <p>A provision in a building contract that the contractor must, if required, furnish a certificate that no liens have been filed, before he shall be entitled to payment under the contract, is intended solely for the benefit and protection of the owner, and not for parsons furnishing materials to the contractor.</p>

<p>1. Evidence—Opinion.</p> <p>In an action for personal injuries, an hypothetical question, which fairly presents plaintiff’s theory and is justified by her proof, is properly put to a medical expert.</p> <p>2. Same.</p> <p>Where the evidence supports the question at the time it is propounded, but evidence, subsequently admitted, renders it improper, the remedy is either by motion to strike out or by a request that the jury be directed to disregard it.</p> <p>8. Same—Opinion.</p> <p>In an action for personal injuries, the evidence of the physical condition of plaintiff, with opinions of physicians as to whether such condition could have resulted from the accident, is admissible.</p>

<p>Evidence—Sale—Breach of warranty.</p> <p>In an action to recover the price of goods sold, evidence that the defendant resold the goods, that they were worthless and that defendant suffered damages thereby, is not admissible to sustain a defense of the breach of warranty, where the plaintiff bought the goods for his own use, and in the absence of proof that he knew that defendant was in the habit of selling such goods.</p>

<p>1. Pleading—Statute of frauds.</p> <p>Where the invalidity of the contract sued upon does not appear upon the face of the complaint, it is incumbent upon the defendant to plead the statute of frauds as a defense, or be held to have waived it.</p> <p>3. Same—Original undertaking.</p> <p>A promise by the owner of the building to pay the subcontractor, who has refused to proceed by reason of the contractor’s failure to pay according to the contract, if he would go on and finish the work, constitutes an original undertaking on the owner’s part to pay the subcontractor in accordance with the terms of the contract.</p>

<p>1. Evidence—-Negligence.</p> <p>In an action to recover for personal injuries, the evidence of physicians as to the plaintiff’s physical condition and general health after the accident hears upon the character and extent of the injury received, and is admissible. .</p> <p>2. Negligence—Questions op pact.</p> <p>The questions of negligence and contributory negligence, in an action to recover for personal injuries, were held, under the evidence in this case, to have been properly submitted to the jury.</p>

<p>Pbincifal and agent—Undisclosed.</p> <p>Where a vendor does not know the real owner of the business, in which the goods which he sells enter and are disposed of, he may, when he dis covers the fact, bring an action against the true owner, even though the agent claims to be the real owner.</p>

The action arises out of the burning of defendant’s factory building, by which plaintiff’s intestate lost his life. The facts which may be considered as established by the verdict, and those conceded, are these: The factory was of brick, about 180 feet square and eight stories in height, wherein was carried on the conversion of corn into glucose. The north side of the building abutted on the Hamburg canal. The south side fronted on Scott street.

<p>Principal and agent—Ratification.</p> <p>Even though an agent is not expressly authorized by his principal to purchase a certain article ior her, her subsequent acceptance of the purchase, keeping it after knowledge of that fact and agreeing to pay for it, constitute a ratification of the agent’s acts.</p>

<p>1. Pleading—Demurrer.</p> <p>• An objection that the claim sued on was not assigned to plaintiff until after the summons had been served, where it does not appear upon the face of the complaint, is not ground of demurrer, but may be raised by a general denial.</p> <p>2. Objection—Waiter.</p> <p>A right is waived for lack of objection, only where the defect could or might have been supplied if an objection had been interposed, or where it appears that the party intended to waive it.</p> <p>3. Evidence—Books of account.</p> <p>Books of account are not rendered admissible in evidence, to prove the claim sued on, by the testimony of a thiid person that the plaintiff had once presented him with a bill, which he found correct and paid, where he does not state that he saw the books or settled from them, or that they were at hand when the bill was presented and paid.</p>

<p>Auctioneers—License by city.</p> <p>The licensing of auctioneers and the regulation of their conduct as such are, within this state, within the power of the legislature, and statutes and ordinances for that purpose are valid.</p>

<p>Corporation—Proof of incorporation.</p> <p>The objection that the plaintiff did not prove its incorporation by the best evidence, cannot be made where defendant made no answer.</p>

<p>1. Contracts—Building associations—Ultra vires.</p> <p>A building association cannot defeat its contract on the ground that, in making such contract, it exceeded the powers conferred upon it by the statute, where the powers exercised by it were incidental to those confer- * red and it has reaped the benefit of such contract, which does not contravene public policy, though it may have gone beyond the scope of the statute.</p> <p>2. Building association—Time for bringing action.</p> <p>Where the by-laws of a building association gives the company the right to sixty days after presentation in which to investigate the claim, the right to object to the bringing of an action within such sixty days is waived where, on presentation for payment of a certificate for shares of stock issued by it, it makes no objection to its validity, but only insists that the amount due thereon is less than the amount provided bv the certificate.</p>

Four actions by Ursula McKee, as executrix of the will of John B. McKee, deceased, against Frank B. Bapp and others, to enforce material men’s liens.

<p>1. Courts—Jurisdiction.</p> <p>In an action to rescind a contract in relation to land in another state, a court of this state will not, by its decree, compel the removal of machinery from, nor the delivery of the possession of, such land.</p> <p>2. Same.</p> <p>Actions for the possession of real property must be brought in the forum rel sitae.</p> <p>3.. Same.</p> <p>The rule which subjects a contract made in one state concerning land in another state to the law of the place where the land is situated, is not confined in its operation to the formal .execution of the deed, but extends to and includes all questions as to its construction and interpretation.</p> <p>4 Same—Construction op laws.</p> <p>The true rule to follow in cases depending on the laws of a particular state is to adopt the construction which the courts of that state have given to them.</p> <p>5. Same.</p> <p>The oral testimony of witnesses, learned in the peculiar system of law to be proved, is competent, to show what the real estate is. as the result, not of one particular statute or decision, but of the whole course of exposition, interpretation and adjudication.</p> <p>6. Mining lease—Construction.</p> <p>A coal mining lease, in the state of Pennsylvania, which relates to all the coal, and whereby the right to mine and take the coal is exclusive of the grantor and the grantee agrees either to mine all the coal or pay for it if not mined, is, in legal effect, a grant in fee of the coal as land.</p>

<p>Tax—Transfer—Exemption.</p> <p>The exemption in the Transfer Tax Law in favor of persons, to whom the decedent has stood for not less than ten years in the mutual acknowledged relation of parent, includes a person who, though not formally adopted, has heen for the specified period recognized and treated as a child.</p>

<p>Appeal from an interlocutory judgment, overruling a demurrer to the complaint.</p> <p>The first cause of action set out a judgment in favor of plaintiff against decedent and one Sawyer, as copartners, which remains unsatisfied ; and plaintiff seeks to set aside the transfer by decedent as such judgment creditor, without alleging that his remedy at law against Sawyer is exhausted. The second cause of action is founded on Laws 1870, ch. 277, providing that “it shall be lawful for any married woman by herself and in her name (or in the name of any third person with his assent as the trustee) to cause to be insured for her sole use the life of her husband, * * * but when the premium paid in any one year out of the property or funds of the husband shall exceed $500 * * * such excess, with interest thereon, shall inure to the benefit of his creditors decedent having effected insurance on his life, payable to his personal representatives, and having subsequently assigned the policy to his wife.</p>

<p>1. Trial—Motion to dismiss.</p> <p>In the absence of a demurrer, all the pleadings may, upon a motion to dismiss the complaint for insufficiency, be looked into and examined for the purpose of seeing whether a cause of action has been set forth in the complaint, or whether any indefinite allegation of the complaint has been supplied or admitted by the answer.</p> <p>2. Pleading—Libel.</p> <p>An answer, in an action for libel, which alleges that the publication was privileged, admits that it refers to plaintiff.</p> <p>3. Same—Innuendo.</p> <p>An averment of the application of the words to the plaintiff needs words of innuendo, only when the words themselves are harmless and innocent until coupled with the plaintiff, in some manner, to his injury.</p> <p>4. Libel—Agent’s acts.</p> <p>Where a foreman prints and delivers libelous matter in the form of a list of questions, knowing that they are to be circulated for illegitimate purposes among persons to be called as witnesses on a trial, his employer, if he had knowledge of the publication, is liable.</p> <p>5. Same—Presumption.</p> <p>The presumption of law is that the publication, if false and libelous, is-malicious.</p> <p>6. Same—Privilege—Question for jury.</p> <p>Where the publication is libelous, the disputed questions of fact as to whether there has been an abuse of privilege and whether the justification of the article in the answer was set up in good faith, are for the jury to determine.</p> <p>1. Same—Malice—Burden of proof.</p> <p>It is only in case where the defamatory article is proven to have been privileged that the burden of showing actual malice is cast upon the-plaintiff.</p>

<p>1. Police justice— Jurisdiction—Sabbath.</p> <p>A police justice has jurisdiction to try in a summary manner one-charged, under section 295 of the Penal Code, with Sabbath breaking.</p> <p>2. Same—Newtown.</p> <p>A person tried before a police justice of Newtown, for Sabbath breaking, is entitled to a jury trial if he elects to be tried by a jury.</p>

<p>Bills and Notes—Discharge op indorser.</p> <p>The question, decided by the trial court and the general term, that the plaintiff failed to establish a cause of action for the reason that the defendant’s testator, as indorser, had the right to depend largely upon the value of the securities pledged for the payment of the notes, and that the subsequent postponing of the bonds pledged as security to the payment of other bonds diminished their value and operated to relieve the surety, was held not to have been presented by the evidence.</p>

<p>Appeal from a judgment of the general term of the fifth department of the supreme court, affirming a judgment dismissing the complaint.</p>

<p>■Separation—A lemony and counsel fees.</p> <p>In an action for a separation in the Superior Court of the City of New York, an allowance for alimony and counsel fees will not be granted.</p>

<p>Poos—Overseers—Recovery.</p> <p>No implied obligation rests upon an overseer of the poor to compensate a person who has, voluntarily and without request from him, relieved a pauper.</p>

<p>Supplementary proceedings—Receiver.</p> <p>A receiver in supplementary proceedings cannot be appointed for the purpose of collecting costs which have not been awarded or allowed therein.</p>

<p>Appeal from judgment of the general term of the supreme court in the third judicial department, entered upon an order,which affirmed a judgment in favor of defendant entered upon a verdict directed by the court and dismissed plaintiff’s complaint upon the merits.</p>

<p>Witness—Credibility.</p> <p>Where it cannot be said, as matter of law, that there is no contradiction between two affidavits, made by a person who is a witness in the action, their effect upon the credibility of the witness should be left to the jury, without the statement of the court that there is no contradiction in them.</p>

The order for substituted service on the infant defendant is as follows: Ordered, that service of said summons upon said defendant, Emily E. Barclay, be made by leaving a copy thereof and of this order at the residence of said defendant, No. 74 WestlSáth street, in the city of New York, with a person of proper age, if, upon reasonable application, admittance can be obtained and such a person found who will receive it, or, if admittance cannot be so obtained or such a person…

<p>1. Pleading—Answer—Irrelevant and redundant,</p> <p>Where the complaint, in an action to recover money paid to defendant on account of an alleged stock subscription, states that plaintiff notified defendant of his refusal to take stock, whereupon the defendant sold the stock to others and thereby voluntarily abandon such subscription, an al legation in the answer that the payment was not on, account of the par value of the stock, but was pursuant to an agreement to pay such amount to be used for the expenses of organizing the company, and that the payment was received and used for that purpose, is neither irrelevant, redundant nor sham.</p> <p>2. Same—Inconsistent defenses.</p> <p>A defendant may plead inconsistent defenses. ‘</p>

<p>Motion for injunctive relief.</p>

<p>Brokers—Deposit to secure account—Proof.</p> <p>The facts of the case, together with the presumption of payment, raised by the lapse of twenty years between the date of the first settlement and the return of the bonds, were held to justify the finding of the trial court that the defendants have not in their possession any bonds belonging to the plaintiff, nor the proceeds of any such bonds, for which they have not accounted to the plaintiff.</p>