Volume 7 — Bedell

The nature of the action and the facts, so far as material, are stated in the opinion. The trial court erred in charging the jury that the duty devolved upon the Terminal Railway Company of seeing that the works in connection with the building of this crossing were properly guarded, notwithstanding its contract with Smith & Daily to construct the same.

the third judicial department entered May 9, 1899, affirming a judgment of the Madison County Court in favor of defendant entered upon a verdict and an order denying a motion for a new trial. The nature of the action and the facts, so far as material, are stated in the opinion. It was error for the court to overrule the plaintiff’s objections as to the admission of evidence. (Myers v. C. T. M. A. Assn., 85 Hun, 385; Cushman v. U. S. L. Ins.

It appears from the petition, affidavits and return that Joshua Howard King died July 18, 1900, a resident of the thirteenth ward of the city of Albany; that the relators were the executors named in his will, and, with the exception of Mr. McHarg, who was a resident of the state of Connecticut, resided in said city, and entered upon their duties as such executors about August 4th, following; that the respondents, the board of assessors of the city of Albany, thereafter and…

The nature of the action and the facts, so far as material, are stated in the opinion. By the delivery of the certificate of stock of the Lehigh Salt Mining Company, assigned in blank by D'. J. Bissell to the plaintiff as collateral security for a loan of $4,000, made by the plaintiff to him, plaintiff became in law the assignee of the shares having possession of the certificate.

The nature of the action and the facts, so far as material, are stated in the opinion. The gratuity system exists in the charter and by-laws of the exchange and not in a contract between the members outside the corporate relation. (Hellenberg v. Dist. No. 1, I. O. of B. B., 94 N. Y. 580; Kemp v. N. Y. Produce Exch., 34 App. Div. 175; McGord v. McGord, 40 App.

The nature of the action and the facts, so far as material, are stated in the opinions. The defendants were not entitled to judgment as matter of law. The issues as to the warranty and its breach were determinable by the jury, and the plaintiff’s exceptions are fatal to the judgment.

The nature of the action and the facts, so far as material, are stated in the opinion. It having been conceded upon the trial that the plaintiffs’ intestate died as the result of the injury sustained in the accident in question, there is no conclusive presumption of law that because the death occurred more than a year and a day thereafter it did not result from the accident. (Purcell v. Lauer, 14 App. Div. 33; Schlichting v. Wintgen, 25 Hun, 626; Sias v. R. Ry.

The nature of the action and the facts, so far as material, are stated in the opinion. The letters, cables and bills of lading introduced in evidence by the plaintiff constitute the contracts for the purchase of these 130 casks. (Crossett v. Carleton, 23 App. Div. 366; G. Mfg. Co. v. Munckenbeck, 20 App.

<p>Negligence — Consequential Damages for Injuries Resulting from Blasting Not Recoverable without Proof of Negligence. In an action to recover damages for injuries to the vault of a building,, constructed under a sidewalk, alleged to have been caused by the negligence of defendant in blasting while engaged in excavating a trench in the street in front of the building under a municipal contract providing-that the blasting should he conducted in conformity with the city ordinances, where there is no evidence showing or tending to show negligence in the performance of.the work and for aught that appears the .injuries may have been a natural result thereof, influenced possibly in addition by some weakness in the construction of the building, a nonsuit, is properly granted. ■></p>

The nature of the action and the facts, so far as material, are stated in the opinion. The defendants were so associated and transacted their insurance business in such manner that by the common law they were as toward third persons jointly liable, substantially as partners. (1 Lindley on Part. [4th ed.] 376, 377; 3 Kent’s Comm. [13th ed.] 27; Hess v. Werts, 4 S. & R. 356; Beaver v. McGrath, 50 Penn.

Slocum and John P. Douglass as surviving executors of and trustees under the will of Eobert F. Austin, deceased. The facts, so far as material, are stated in the-opinion. The testator intended the life beneficiaries should have the income of investments only after conversion of the assets into cash, the investment thereof, and the earning of income thereon. (Matter of Stanfield, 135 N. Y. 292; Williamson v. Williamson, 6 Paige, 298; Pierce v. Chamberlain, 41 How.

This -is the usual action against the elevated railway companies for an injunction and damages. The case was tried at Special Term in the first department, and the appeal from the judgment entered upon the decision was transferred to and heard by the Appellate Division in the sefeond department. The plaintiff is the owner of premises known as Mbs. 70 to 76 Trinity place, in the city of Mew York. He acquired title thereto March 29th, 1889.

The facts, so far as material, are stated in the opinion. The statute, chapter 378 of the Laws of 1896, under which the special jury was ordered, is unconstitutional. (Matter of Hathaway, 71 N. Y. 238; Newell v. People, 7 N. Y. 9; Striker v. Kelly, 7 Hill, 9; Beekman's Case, 11 Abb.

the complaint by the court on trial at Circuit. The nature of the action and the facts, so far as material, are stated in the opinion. An award stands upon the same footing ás a judgment with respect to the power of a court of equity to relieve against it, but the manner of obtaining that relief is different. The plaintiff in this action could not review in any direct proceedings the determination of the appraisers.

<p>Vendor and Purchaser—Marketable Title — Party Wall ■on Adjoining Lot. A purchaser is not justified in refusing to carry out his contract for the purchase of a lot described by metes and bounds, together with the house thereon, because the party -wall on one side is, for a portion of its length, wholly on the adjoining lot, where it appears that the contract was made after his personal inspection of the premises, and the condition of affairs, if not known to him, was his own fault; that the party wall was not maintained under a perpetual covenant running with the land, but was to last only so long as the building and the wall should endure, and that owing to the fact that both lots were formerly owned by the same person who had erected houses thereon and had created thereby a servitude imposed upon the adjoining lot, the purchaser had a clear and indisputable right to rest the beams of his house in the wall during its existence.</p>

<p>1. Skaneatbles Lake — Riparian Owners on Outlet Have no Title to the Corpus of the Water. Assuming, but not deciding, that riparian proprietors on the outlet, of Skaneateles lake who have built up mills and factories thereon, understanding that the dam there was to remain and be maintained at a specified height, have an interest in and a right to have all of the waters tributary to the lake stored" therein and so discharged as to give them a uniform supply of water “ for mill purposes ” during all the seasons of the year, they have no title -to the water of the lake or right to divert or sell it.</p> <p>3. Condemnation Proceedings by City of Syracuse — Measure of Damages. Where, therefore, in condemnation proceedings instituted by the city of Syracuse under chapter 391 of the Laws of 1889, as amended by chapter 314 of the Laws of 1890, which authorized it to condemn and acquire all the water lights of the riparian owners on the outlet of the lake, an award which is made upon the basis of the difference in value of the affected properties with and without the rights condemned, but allows nothing for the value of the right to the water of the lake, or of the right to sell or divert it, is properly made for the reason that the water rights sought to be condemned and acquired did not and could not include such rights.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in refusing to dismiss the complaint upon defendant’s motion, made upon the ground that there is no proof of unbroken connection between any wrongful act of the defend - ant and the death of the plaintiff’s intestate.

The nature of the action and the facts, so far as material, are stated in the opinion. The conveyance by Hall to the railroad company estopped himself, and all subsequent grantees of the lots, which he owned at the time of the conveyance to the railroad company, from subsequently making any claim against the railroad company. (Conabeer v. N. Y. & H. R. R. Co., 156 N. Y. 474; Code Civ. Pro. §§ 369, 371; 1 Am. & Eng.

This action was brought to recover for personal injuries alleged to have been caused by the negligence of the defendant. The defendant was the owner of an elevator on the bank of Buffalo creek, in the city of Buffalo, IST. Y., about 240 feet in length, extending north and south. A siding started at a point in the main track of the defendant’s railroad north of the elevator, extended through it and to a point 292 feet south of the southerly end.

The nature of the action and the facts, so far as material, are stated in the opinion.

<p>Findings of Fact in Decision Stating Separately the Facts Found and Conclusions of Law — Unanimous Affirmance by Appellate Division of Judgment Requiring Removal of Encroachments. The findings of fact in a decision of the Special Term of the Supreme Court, stating separately the facts found and concia.--ms of law, apon which is based a judgment requiring defendant to remove a house and gate erected by him on premises which the judgment declares to be a private road, unanimously affirmed by the Appellate Division, must be assumed by the Court of Appeals not only to be true but to express the whole truth, and the judgment must be affirmed by such court when the findings establish: (1) The making of an oral agreement between the owners of all the lands abutting upon such road to establish a private road for the benefit of all parts of such lands; (2) that the oral agreement became an executed agreement by a part performance of its stipulations by all the parties to it before the defendant purchased his lands: (3) that defendant purchased with full knowledge thereof and with the intent to be bound thereby.</p>

This action was upon a policy of fire insurance for the sum of $2,500, issued by the defendant to the plaintiff, upon its stock of bicycles, materials, supplies and machinery used in manufacturing and finishing bicycles, including parts manufactured and in process of manufacture. The answer alleged that the plaintiff had refused to unite with the defendant in appraising the loss, as provided by the policy, and that, therefore, the action was prematurely brought.

<p>1. Lease — Surrender of Demised Premises as Untenantable — Real Property Law, § 197. A covenant by a lessee to make ‘‘all inside and outside repairs ” imports a general covenant to make ordinary, not extraordinary, repairs, and does not deprive Mm of the protection of section 197 of the Real Property Law (L. 1896, ch. 547) authorizing a tenant to surrender the premises, without liability for rent for the unexpired term, where, without his fault, they have been so injured by the elements as to be untenantable and unfit for occupancy.</p> <p>2. Trial — Questions of Pact. In an action against the lessee to recover the rent, conflicting evidence (1) as to whether the injury was of such a character as to render the premises untenantable, and (2) as to whether the defendant did in fact surrender them in consequence of their having become untenantable, presents questions of fact which should be submitted to the jury.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, made ¡November 19, 1901, which reversed an order of a Trial Term denying a motion of defendant to set aside an assessment of damages and granted such motion. The nature of the action, the facts, so far as material, and the questions certified are stated in the opinion. This court has jurisdiction to review the order appealed from.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the Second Judicial Department, made October 11, 1901, reversing a judgment of the Kings County Court rendered upon a verdict convicting the defendant of the crime of grand larceny in the first degree.</p> <p>The facts so far as material, are stated in the opinion.</p>

The facts, so far as material, are stated in the opinion. Upon the death of Monroe Brundage his real estate descended to Sarah Brundage during her life, and the reversion to Franklin Brundage, Grattan II. Brundage and Eliza Nellis. (1 R. S. 752, § 6; 754, § 27.) Sarah Brundage took a freehold estate in the lands of which Monroe Brundage died seized.

<p>Appeal — Unanimous Aeeibmance. An exception to a finding of fact unanimously affirmed by the Appellate Division presents no question reviewable by the Court of Appeals, and where the facts as found justify the conclusions of law an# no other exceptions appear which present any questions of law, tne juagmi.nt must be affirmed.</p>

<p>Appeal — Points op Counsel — Extended Quotations prom Evidence and Authorities. The practice of counsel in cases pending before the Court of Appeals, of incorporating in the points, extended quotations from the evidence and authorities, particularly in a case of unanimous affirmance, is to be deprecated, and in order to relieve that court from the necessity of making an inflexible rule, with an appropriate penalty for its violation, the following suggestions are made: Under Rule 8, the points, after stating the facts fairly, should set forth the facts insisted upon by counsel, the heads of the argument and the authorities relied upon to support it. Only those facts should be mentioned which are either specifically found or are presumed to have been found according to the rules governing appeals to that court; except, first, where there is a reversal by the court below; second, when there is an affirmance, but it is not unanimous, and it is claimed that there is no evidence whatever to support a fact which is necessary to sustain the judgment; and in all cases references should be made to the folios of the appeal book where the evidence to support the facts stated may be found. Even when the affirmance is not unanimous, counsel should not state as established facts whatever allegations they may think aie supported by the. weight of evidence, provided there is some evidence which, when reasonably considered, would support the opposite view, and from the form of the decision the presumption is that the trial tribunal found accordingly.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The court having directed a verdict, the appellant is entitled to the most favorable inferences deducible from the evidence, and all disputed facts are to be treated as established in his favor. (McDonald v. M. S. R. Co., 167 N. Y. 68; Place v. N. Y. C.& H. R. R. R. Co., 167 N. Y. 347; Bank of Monongahela v. Weston, 159 N. Y. 208; S. Nat.

The nature of the action and the facts, so far as material, are stated in the opinion. The proof showed that there was no negligence on the part of the defendant, and the motion for a nonsuit should have been granted. (2 Dillon on Mun. Corp. § 1017; Cusick v. Adams, 115 N. Y. 55; Splittorf v. State, 108 N. Y. 205; Donahue v. State, 112 N. Y. 142.) The plaintiff was guilty of contributory negligence.

The nature of the action and the facts, so far as material, are stated in the opinion. The will devised in fee simple forever the lot in question of plaintiff subject only to the life estate of the widow and not subject to any power thereinafter created. The title vested in plaintiff at the death of the testator, and she having never conveyed it, is now the owner.

<p>1. Statute of Frauds— Collateral Agreement — Note or'Memorandum. The note or memorandum of a collateral agreement to pay the rent of premises leased to another, contained in the correspondence between the agent of the owner thereof and the lessee and guarantor, is insufficient to sustain an action by the owner where, without the aid of parol evidence, such owner for whose benefit-the promise is made is in no way connected with the contract, since such note or memorandum must contain in itself all the necessary terms of the contract.</p> <p>2 Pleading—Guaranty — Consideration of, as Original Undertaking. A complaint in an action for rent, which alleges that one of two defendants for a sufficient consideration and for his own benefit entered into an agreement to guarantee the payment, and undertook to pay the rent of the premises under a lease thereof to the other, including any period of continuation effected under the terms of the agreement upon the exercising by his co-defendant of the option therein provided for, and that such option was exercised by the íktter at the instance and request of the former, who, for a valuable consideration and for big own benefit, undertook and agreed to guarantee the payment of the rent for such continuation of the -term, and promised and agreed to pay such rent, is sufficient to permit the consideration of such undertaking upon the theory that it is original in its character.</p> <p>3. Guaranty of Rent — Collateral or Original Undertaking. An undertaking to guarantee the payment of and to pay rent by one jointly interested with another- in business on premises rented by the latter for the carrying on of such business, made at the time of and as a part of the general agreement between the parties for the renting of the premises, is an original undertaking and not within the Statute of Frauds as a promise to answer for the debt, default or miscarriage of another.</p> <p>4. Lease—Option for Renewal. An agreement for the leasing of premises for four months with an option for an extension not exceeding three years is not within the Statute of Frauds, since the existence of such option does not render the agreement a lease for a longer period than four months, as it might not be exercised and it is possible for the lease to terminate at the end of the definite period agreed upon, and the statute does not include an agreement, even if it is not likely or is not expected to be performed within a year, if, when fairly and reasonably interpreted, it admits of a valid execution within that time.</p> <p>5. Lease — Beginning in the Future. A lease for one year to take effect in the future need not he in writing.</p> <p>6. Appeal — Correct Decision—Wrong Reason. A correct decision will not be reversed on appeal because founded upon a wrong-reason where the ground of the decision cannot be seen to have misled a party to his injury.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The original note as well as the note in suit in the hands of plaintiff were not negotiable, were not protected by the law merchant, and were, therefore, mere choses in action assigned to plaintiff by delivery, and subject only to the rules of law applicable to mere choses in action. (G. Nat. Bank v. Bingham, 118 N. Y. 355; Freund v. I. & T. Bank, 76 N. Y. 352; T. H. El.

Brandreth, deceased. The facts, so far as material, are stated in the opinion. The reversal by the Appellate Division was upon the law and not upon the facts. (Code Civ. Pro. §§ 1338, 1361; Bomeisler v. Forster, 154 N. Y. 229; People v. A. Ry.

The facts, so far as material, are stated in the opinion. The deduction for expenses of the temporary administration in this case cannot he sustained. (Matter of Westurn, 152 N. Y. 93.) The allowance of trustees’ commissions cannot be sustained. (Matter of Becker, 26 Misc. Rep. 633; Matter of Borup, 28 Misc. Rep. 474.) The Federal inheritance tax is not a proper deduction. (Matter of Merriam, 141 N. Y. 479; Matter of Cullam, 145 N. Y. 593; Matter of Burr, 16 Misc.

Manning, deceased. The facts, so far as material, are stated in the opinion. The order of the surrogate striking out the account of $17,446.92 against G. Warren Manning from the assessment and determination of the appraiser was an error, as said account is a collectible asset of the estate, and should be appraised and taxed as part of the taxable property of said estate. (Matter of Davis, 149 N. Y. 537; Matter of Merriam, 141 N. Y. 479.) The -claim against Gr.

The nature of the proceeding and the facts, so far as material, are stated in the opinion. The action of the Appellate Division is without jurisdiction and is illegal and void. (Code Civ. Pro. § 2140.) The court did not correct the adjudication. It reversed the decision absolutely, annulling the proceedings and reinstating the relator.

<p>Assignment for Creditors — Preference of More than One-Third of Individual Property to Firm Creditors Yoid under Chapter 503 of Laws of 1887. A clause in a general assignment of individual property made by a member of a firm, the property of which has been distributed under an assignment by the firm, which directs, after the payment of certain preferred claims not exceeding one-third of the assets of his estate, the distribution of the remainder of his estate among the firm as well as his individual creditors, ratably and in the same proportion, creates a preference in favor of the firm creditors that is in contravention of the statute (L. 1887, ch. 503), and is, therefore, void, and such remainder should be distributed among his individual creditors.</p>

The administrator had full power to obtain the loan from the bank as he did, and to make the note and pledge of the bond therefor. (Code Civ. Pro. §§ 2700-2702; Redf. on Surr. [4th ed.] 306; Hopper v. Hopper, 53 Hun, 394.) The defendant was not charged with the duty of making any inquiry as to the administrator’s powers to make the loan and pledge. (Cook on Stockholders, § 474; Goodwin v. A. Nat.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff, on the facts shown, is clearly entitled to an injunction. (Caswell v. Hazard, 121 N. Y. 484; Gillot v. Esterbrook, 48 N. Y. 374; Low v. Hart, 90 N. Y. 457; 139 N. Y. 364; A. Mfg. Co. v. Trainor, 101 U. S. 51; Rains v. White, 52 S. W. Rep. 970; R. B. P. Co. v. Davis, 26 Fed.

<p>Ejectment — Action Based on Deed Void as against Person in Adverse Possession—Effect of Subsequent Deed to Latter. A deed to a third party fiom the owner of premises held adversely under a claim of title founded upon a tax deed is void under the statute (1 R. S. 739, § 147), as against the person in adverse possession, and a subsequent deed to him from the same grantor is good because he had the right to take the title, although he took it with knowledge of the previous deed. The owner and grantor cannot maintain an action in ejectment to recover the premises for the benefit of the prior grantee, brought after the delivery and recording of the subsequent deed, since the latter’s right of entry depended upon the title of her grantor and that had been conveyed to the person in possession of the premises by the subsequent deed.</p>

<p>1. Labceny—Penal Code, section 528.</p> <p>False statements made to the owner of a residence by a party that hie was the owner of the adjoining lots and was about to erect a soap factory thereon, do not constitute false pretenses within the meaning of section 528 of the Penal Code.</p> <p>2. Same.</p> <p>A man is not guilty of larceny by false pretense, because he has not title to either the real estate or personal property which he undertakes to sell, o,r says he owns, provided he vests good title in the purchaser at the time he pays the consideration for the property.</p>

<p>Arbitration—Award Conclusive as to the Merits. An appeal under section 3381 of the Code of Civil Procedure from a judgment entered upon the award of an arbitrator, to whom questions of law were submitted upon an agreed statement of facts, presents for review only such questions as would be raised by a motion to vacate, modify or correct the award as provided in sections 3374-3375, and does not bring up for review the question of the correctness of the award upon the merits either as to the law or the facts; and where no such motion is made the award is not reviewable.</p>

<p>1. Oil Lease — When Title to Oil Vests. A. lease granting the exclusive right to mine and excavate oil for a specified period, one-eighth of the oil pumped and raised from the premises to be delivered to the lessor, vests no title to the oil in the lessee until it has been taken from the ground and reduced to possession.</p> <p>3. Leasehold Interest Personal Property not Embraced in Deed of Interest in Real Estate. The right to produce the oil, both by-authority and express legislative enactment (L. 1883, ch. 373), is personal property, and does not pass under a deed from the lessee’s executors and devisees purporting to convey all the lands owned by them “or in which they have an interest,” since the deed announces an intent to convey an interest in real estate, not in personal property.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The cause of action arises within this state. (Reed v. Chilson, 40 N. Y. S. R. 961; Merritt v. Fowler, 76 Hun, 424; G. P. Co. v. Mayor, etc., 108 N. Y. 276; Nazro v. MeC. O. Co., 36 Hun, 296; Bk. of Commerce v. R. & W. R. R. Co., 10 How. Pr. 1; Burchle v. Eckhart, 3 N. Y. 132; Shumway v. Stillman, 6 Wend. 447; L. Ins. Co. v. French, 18 How.

Tatum, as executor of Maria E. Hibbler, deceased. The facts, so far as material, are stated in the opinion. It is absolutely necessary that there should be an equitable conversion of the real estate in order to establish the trust for the infant Frederick C. Tatum.

The nature of the action and the facts, so far as material, i-e stated in the opinion. The trial court erred in excluding evidence of the information possessed by Cauffinan concerning his partner’s ownership of real property.

The nature of the action and the facts, so far as material, are stated in the opinion. Appellant is entitled to a reversal of the judgment as there was evidence supporting its cause of action. (Ware v. Dos Passos, 162 N. Y. 281; Scofield v. Hernandez, 47 N. Y. 313; Place v. Hayward, 117 N. Y. 487; McNally v. P. Ins. Co., 137 N. Y. 394; Pratt v. D. H. & M. F. Ins. Co., 137 N. Y. 212; Stiegerwald v. M. R. Co., 50 App.

Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 9, 1901, which reversed a judgment of the Court of Special Sessions of the city of New York convicting the defendant of a violation of section 292 of the Penal Code. The motion was made upon the ground that the Court of Appeals has no jurisdiction to hear the appeal.

Motion to withdraw appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 27, 1900, reversing a judgment in favor of plaintiff entered upon the report of a referee and granting a new trial. The motion was made upon the ground that the appeal was taken erroneously and inadvertently and that the Court of Appeals has no jurisdiction to consider the questions raised thereby.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered February 5, 1900, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial at Special Term.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered August 7, 1900, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term.</p>