Volume 71 — New York Miscellaneous Reports

<p>Cadavers — Persons entitled to possession.</p> <p>Under section 316 of the Public Health Law, permitting hospitals to deliver corpses to medical colleges with the assent of “relatives or friends,” a post-mortem examination of the body of one who died in a hospital must be consented to by relatives, but, if after reasonable inquiry no relative can be found, the assent of “ friends ” will suffice.</p> <p>Where it does not appear what, if any, effort was made to discover' the relatives of one who died at a hospital beyond the fact that the name of a woman was entered as “ friend ” in the hospital records, a post-mortem examination made in reliance on her consent is not a compliance with section 316 of the Public Health Law.</p>

<p>Mechanics’ liens: Notice of lien — Statement as to ownership; Amendment: Priorities — Prior mortgage.</p> <p>One filing a notice of mechanic’s lien is put upon inquiry as to the true owner of the premises and a notice filed only against a vendee in possession under an executory contract of sale acquires no lien upon the vendor’s interest; nor can the court upon the trial of an action to foreclose a mortgage claimed to be prior to the mechanic’s lien permit an amendment of the notice of lien so as to claim against the vendor or the holders of mortgages on the property.</p> <p>In such a case, mortgages given by the vendee to the vendor upon closing the contract of sale and which represent the same indebtedness as antecedent mortgages that are then discharged pursuant to the terms of the contract are prior to the mechanic’s lien.</p>

<p>Action upon liquor tax bond.</p>

<p>Libel and slander: Words imputing crime — Facts not constituting crime—Privileged communications — Public and official communications— Proceedings of public political meeting: Extent, aggravation and mitigation of damages — Truth of charges or belief therein; Matters occurring after publication — Republication of libel by person accused: Justification — Sufficiency.</p> <p>The publication in a public newspaper of a speech containing a statement that a person named had been guilty of forgery and falsification of a public document by doing certain acts fully described that did not constitute either of those crimes is, nevertheless, actionable where the general reader would attribute to the language the meaning that those crimes had, in fact,- been committed; and, since their commission cannot be inferred from the facts stated, the publication of the charge that they had been committed cannot be claimed as privileged on the score of its being a report of what a public official said in a defense against a criticism of his public acts and conduct by the plaintiff and in a defense against a charge of malfeasance and incompeteney in office and the publication by the defendant being without malice to the plaintiff and in the belief that it was true.</p> <p>In such a case, a defense of partial justification which pleads the truth of some of the facts upon which the charges of the crimes mentioned were predicated is insufficient.</p> <p>A defense in mitigation of damages alleging that the defendant received its report of the speech published from a reliable source and believed it to be true and was without knowledge that it was untrue and that it published the speech without malice, but which does not allege that it believed the plaintiff was guilty of the crimes charged, is insufficient.</p> <p>The fact of the republieation of the articles complained of by the plaintiff in his own newspaper may be considered by the jury in estimating the damages to be awarded to the plaintiff for his mental suffering; and demurrers to defenses setting up such republication should be overruled.</p> <p>And where the plaintiff, for a second cause of action, alleges the publication of another article in which it is alleged the plaintiff falsely charged and sought to convey to its readers the meaning that the charge of felony against the plaintiff in the publication mentioned in the first cause of action was true and had been so proved, the defendant may not in the same defense deny the defamatory meaning attributed to the publication by the plaintiff and justify it in an innocent sense only.</p> <p>And where the second cause of action alleged that the article complained of also contained a charge that the plaintiff had resorted to nefarious methods to throw suspicion on the motives of others, a second defense thereto, alleging the plaintiff’s intentional suppression of a date to give false color of support to his attack upon the person in whose speech in reply to such attack the libelous statements were contained, is good as a partial defense.</p> <p>Allegations that defendant received its report of the speech from a source it had reason to believe was reliable and believed the plaintiff had suppressed a date may tend to mitigate the damages arising from the charge attributed by innuendo that plaintiff had lied and misrepresented facts contained in the second cause of action.</p> <p>Allegations of the republication by the plaintiff in his newspapers of the original speech is not, however, matter in mitigation of damages arising from the publication set up as the second cause of action.</p> <p>Where, in a third cause of action, the plaintiff alleges the publication of an article commenting on the speech in which the statement not attributed to the speaker is made that proven forgeries are for the plaintiff only quibbles, the defendant is to be regarded as making the charge on its own responsibility, and to this cause of action none of the pleas interposed to the other causes of action can be sustained.</p>

<p>Libel and slander: Extent, aggravation and mitigation of damages — Matter in mitigation in general: Pleading — Plea or answer — Matter in mitigation — Conclusion without facts.</p> <p>The naked allegation of the belief in the truth of a libelous charge, unsupported by the statement of a single fact or circumstance upon which such belief is based, is insufficient to constitute a defense in mitigation of damages to an action for libel.</p>

<p>Action to establish a lien upon automobiles for work, labor and services.</p>

<p>Demurrer to complaint.</p>

<p>Master and servant — Master’s liability for injuries to servant: Tools, machinery and places to work — Guarding dangerous machinery: Risks assumed by servant — Dangers known to servant and obvious and latent defects — Machinery, tools and appliances: Actions — Questions for jury — Defects in tools, appliances or places to work — Unguarded machinery; Assumption of risk.</p> <p>Negligence — Proximate cause of injury — Cause of injury in general.</p> <p>Where, in an action to recover damages for injuries resulting from negligénce, it appears that if without the operation of the defendant’s negligence the- accident would not have happened and was one reasonably to be foreseen and anticipated, the cause of action is established.</p> <p>The striking against an employee in a factory of a barrel which he was trying to lift, which threw him upon an unguarded belt that ought to have been guarded and injured him, though the primary cause of the accident, is not the proximate cause; but the proximate cause is the master’s negligence in failing to guard the belt, when it is apparent the accident would not have happened if the belt had been guarded.</p> <p>In such a case, it is a question for the jury to determine whether the accident could have been anticipated in the exercise of ordinary care as likely to happen in consequence of the want of a guard.</p> <p>The assumption of risk by the employee in such a case, where he remains in presence of a known danger under a promise by the employer to repair the wrong, is also a question of fact for the jury.</p>

<p>Limitation of actions — Statutes of limitation — Giving effect to foreign statutes.</p> <p>Where shares of corporate stock were pledged to secure the payment of a note made in this State, and the maker died resident in New Jersey, and his administratrix, having given notice to present claims and having received the claim of the holder of the note, rejected it, and where no suit was brought upon the note within one month after such rejection as required by the laws of New Jersey, such rejection does not bar an action in this State to establish and foreclose the lien of the holder of the note who resides here upon the shares pledged to secure the note.</p>

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

<p>Husband and wife — Property owned jointly or in common — Nature of estate.</p> <p>Partition — Bight and propriety—Estates partible — Tenancies by the entirety.</p> <p>Where lands are conveyed to a husband and wife by a third person without any words to signify an intention that they shall take otherwise than as tenants by the entirety, it will be held that they become vested with such an estate.</p> <p>The mere repetition of the words “ heirs and assigns ” in the habendum clause will not be held to import a different intention.</p> <p>The provisions of section 36 of chapter 19 of the Laws of 1909 are not to be construed aá permitting a partition of lands between husband and wife against the will of either.</p>

Action to recover the purchase price' of an automobile. Motion for new trial on judge’s minutes, after verdict for the plaintiff, under section 999, Code of Civil Procedure.

<p>Action by executors for accounting and construction of a will.</p>

<p>Wills — Interpretation and construction — Designations and descriptions of persons, objects and purposes — Particular terms of doubtful meaning — Family.</p> <p>A wife who has separated from her husband constitutes his family within the meaning of testamentary provisions for the benefit of himself and family, contained in his -father’s will made before the separation, where there are no children; and where the husband is in receipt of an adequate income from his father’s estate, payable to him under such will for the benefit of himself and family, but contributes none of it for the wife’s support a court of equity will provide for the payment to her of a sum sufficient for her reasonable support in a manner fitting her station in life.</p>

<p>Justices of the peace—Appeal and error — Returns — Conclusiveness of return.</p> <p>Upon an appeal from a court of special sessions, affidavits will not be received to show irregularities or omissions that do not appear by the return; but a further or amended return may be required.</p>

<p>Appeal from a judgment of a justice’s court in favor of plaintiffs.</p>

<p>Former adjudication: Adjudication as bar to all matters which might have been litigated — General rule — Matters of claim or defense:What matters are concluded — Matters actually litigated and determined.</p> <p>A judgment or decree of a court of competent jurisdiction is final not only as to matters actually determined hut as to all matters which might have been litigated and decided in the cause.</p> <p>In an action to recover the value of an old building claimed to have been so-ld to defendant and certain hemlock logs sold to .defendant’s husband who it was claimed acted as her agent, a judgment rendered in a former suit between the same parties to recover upon the same cause of action is a complete defense and bar to the second action, though in the first action the justice granted a nonsuit, it appearing from the records that defendant’s liability for the acts of her husband, the principal issue, was litigated and determined upon the merits and the motion for a non-suit was made at the close of all the evidence.</p>

Action by Leroy Darling in justice’s court, town of Addison, Steuben county, N. Y., to recover for a breach of contract, in that the defendant failed and refused to comply with the provisions of a certain policy of insurance.

<p>Contracts — Performance of contracts — Contract to be performed to satisfaction of other party — In general.</p> <p>A contract for the rendition of services of a peculiar and personal character as buyer and manager of a department of the employer’s business, to be performed to the satisfaction' of the employer, gives him the right to terminate the employment at any time he deems the services unsatisfactory.</p>

Appeal by plaintiffs from a judgment in favor of the defendants, rendered in the Municipal Court of the city of Mew York, borough of Manhattan, fifth district, after trial by the court without a jury.

Appeal by plaintiff from a judgment of the Municipal Court of the city of ¡New York, borough of Manhattan, sixth district, dismissing the complaint.

<p>Frauds, Statute of — Sales of goods — Delivery and acceptance of goods — Sufficiency of delivery and acceptance.</p> <p>Both delivery and acceptance of goods sold under an oral contract are necessary to satisfy the requirements of the Statute of Frauds.</p> <p>There is no sufficient delivery under such' a contract where the seller upon the buyer’s refusal to accept the goods sells them to a third person.</p> <p>Damage to the seller predicated upon the buyer’s refusal to accept the goods is inconsistent With such an" acceptance of them as must concur with the delivery in order to satisfy the Statute of Frauds.</p>

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

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

<p>Negligence—Actions — Evidence — Injuries caused by falling objects. Where a sign belonging to defendant fell from the fifth story of his building and struck and injured plaintiff, a pedestrian, the rule of res ipsa loquitur applies.</p>

This is an appeal by the defendant from a judgment-entered at the Trial Term of the City Court of the city of Hew York and from an order denying a motion for a new trial.

<p>Buildings — In general — Liability of owner for personal injuries to persons coming upon premises — Liability of owner of tenement or apartment houses—Proximate cause.</p> <p>Negligence — Proximate cause of injury — Cause of injury in general.</p> <p>Where the hall of a tenement house is insufficiently lighted and a visitor while ascending the stairs is run into by a boy descending in a hurry and injured, the careless act of the boy is the proximate cause of the injury and not the insufficient lighting of the hall.</p> <p>Bijur, J., dissents.</p>

<p>Default — Opening default — Grounds or excuses for opening.</p> <p>Trial — Bringing case to trial — Notice of trial.</p> <p>A notice of trial for plaintiff, served before the expiration of the time within which to serve an amended answer, is regular; but, on service of the amended answer, plaintiff must serve a new notice of trial.</p> <p>Where both the notice of trial and the amended answer were served on the same day, the actual time of service is material and will be considered in determining which was first served.</p> <p>Where plaintiff failed to serve a notice of trial of the issues raised by an amended answer, the defendant is entitled to have a judgment taken against him by default opened as matter of right.</p>

<p>Process — Defects and amendments—Amendment — líame of party.</p> <p>Where only one of two brothers sued as partners in business under a firm name was served with the summons, and, upon the trial of the action, it appeared that the brothers were not copartners and that their father was the person who transacted the business under the firm name alleged in the complaint, the court has no power, under section 723 of the Code of Civil Procedure, to make him a party to the action by amendment,</p>

<p>This is an appeal from an order of the City Court, Special Term, denying a motion to punish a judgment debtor for contempt.</p>

<p>Mechanics’ liens — Foreclosure — Judgment — Relief granted.</p> <p>Release — Release of persons jointly liable — Releases of joint tort feasors.</p> <p>In an action to foreclose a mechanic’s lien filed by architects who supervised the erection of a building, where the.owner counterclaims for damages for the negligent and unskillful performance by the architects of their duties and establishes the fact of their negligence and want of skill and offers uncontradieted evidence in support of a counterclaim in his favor in excess of the amount claimed by the plaintiffs, it is error to dismiss the counterclaim because the trial court is of the opinion that it has been exaggerated by the defendant and by his, witnesses, but the amount due defendant should be ascertained and judgment awarded him for the excess.</p> <p>The fact that defendant settled with the builders who were equally at fault and paid them in full, which he was not bound to do, does not affect his right to recover of the architects upon his counterclaim.</p>

Motion to fix the allowances for counsel fees to be made in a proceeding to acquire property for a water supply for the city of Hew York.

Petition by Michael J. Money, a stockholder and director of Geneva Basket Company, a corporation, for its voluntary dissolution pursuant to statute, and motion to vacate a petition and order for similar relief made on January 9, 1911, on application of John B. Kenny.

<p>Constitutional law—Privileges and immunities of citizens of the United States and of the several States and equal protection of the laws — Regulation of business — Selling tickets in streets.</p> <p>An ordinance adopted by the board of aldermen of the city of New York, prohibiting the sale or offering for sale of tickets for admission to places of amusement in any street in said city, is not unreasonable, oppressive or in contravention of common right but is within the police power and the powers conferred upon the board of aldermen by the charter.</p>

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

<p>Civil service — In general—Adoption of regulations and classifications — Powers of municipal civil service commissioners.</p> <p>The question whether the position of coroner’s physician of the borough of Brooklyn is a confidential one cannot be determined as matter of law; its determination is within the powers of the municipal civil service commission and the determination by said commission of that question, as well as the practicability of including the position in the competitive class, should stand upon an application for a peremptory mandamus.</p>

■Summaby proceedings to remove the defendant on the ground that he is a tenant at will of the premises described in the petition.

<p>Municipal corporations — Contracts — Interpretation and effect of contract in general — Provisions required by Lafcor Law.</p> <p>One who contracts with the city of New York for the erection of a municipal building under a contract which, in pursuance of the Labor Law of this State, provides for an eight-hour day and payment of the prevailing rate of wages is not thereby prevented from having work called for by the contract done in another State where no such law exists and where neither of said provisions is observed.</p>

<p>Reference: Qualification and tenure of referees — Removal—Bias or misconduct of referee: Compensation of referees — In general — When right to compensation accrues.</p> <p>A referee’s right to fees does not accrue until he has completed the reference and filed or delivered his report; and where a referee requests payment of part of his fees before he is entitled thereto and one of the parties complies with the request, the other - party who does uot comply is placed at a disadvantage and upon his motion the referee will he removed and another will be appointed in his place.</p>

Motion by the defendant to stay all proceedings in this action on the part of the plaintiff until -the entry of final judgments in the two actions of Louis J. Kahn v. Adolph Hollander and Harry Hollander, pending in the Supreme Court, Mew York county.

Motion by defendants for an order staying the action pending in this court until the final determination of the action of Greenberg v. Levy pending in the Supreme Court, New York county.

<p>• Motion by defendant for judgment upon the pleadings.</p>

<p>Highways — Defective highways — Questions for jury.</p> <p>Negligence — Proximate cause of injury — Concurrent causes.</p> <p>Where, in an action to recover for personal injuries sustained upon a highway In a sparsely settled part of a town of less than 1,000 inhabitants, it appears that, while plaintiff was leading a horse by a five-foot halter along the highway which had been undergoing repairs under the direction of the town superintendent of highways, she met a horse drawing an open carriage in which were said superintendent and a supervisor of the town and after she had passed them her horse in some manner was urged or frightened forward and passed her at a rapid gait and her foot caught on one of several piles of loose stones, which had been piled on each side of the road about a. foot high and about four or five feet apart, at or near the point where the wheel tracks would naturally come, and she was thrown to the ground and dragged over the stones until the halter was snatched from her grasp. The question whether the town was reasonably expeditious in removing the stone piles incident to the work of crowning the road was for the jury, and its finding that the road at the place of the accident was not in a reasonably safe or proper condition will not be disturbed on a motion to set aside a verdict in plaintiff’s favor.</p> <p>The stone pile was an efficient proximate cause of the accident concurring with plaintiff’s frightened horse and without which the accident would not have occurred.</p> <p>There may be two proximate causes of an accident, if each can be said to have been an efficient one without which the injury would not have been sustained.</p>

<p>Bailment: What constitutes a bailment: Evidence and presumptions — Negligence of bailee — Destruction of automobile by fire rebuts presumption arising from failure to deliver.</p> <p>Taking case from jury and nonsuit — Nonsuit after verdict.</p> <p>The intention of section 11,87 of the Code of Civil Procedure, by virtue of which the court may reserve decision on a motion for nonsuit until after the jury has passed upon questions submitted to it, is to provide an adjustment of the rights of parties by a minimum of litigation thus obviating the necessity for a new trial in ease defendant upon the facts proven is justly entitled to a nonsuit.</p> <p>Where the owner of an automobile delivers it to one who agrees to repair it the contract is ope of bailment for hire, and the bailee is only liable for want of ordinary care in protecting the machine.</p> <p>Where, in an action to recover the value of the machine for the failure of the bailee to return it, it appears that after the repairs were completed it was destroyed by fire while in a barn not connected with the garage of the bailee, the burden is upon the owner to show that the loss was occasioned by some negligence or want of ordinary care upon the part of the defendant.</p>

<p>Motion at the trial to dismiss the complaint.</p>

<p>Motion made by the plaintiff as guardian ad litem to revive this action in her name as administratrix.</p>

<p>Motion by defendant to set aside a verdict in favor of the plaintiff and for a new trial.</p>

Action to recover liquidated damages for the breach of a contract for the employment of defendants to render services as musicians.

<p>Corporations — Stock — Preferred stock and increase or reduction of stock — Eight of shareholder to proportionate share of increase — Loss of right by delay.</p> <p>Where at a meeting of corporate stockholders it was voted to increase the capital stock and shares were allotted to the stockholders in proportion to their holdings and they were required by the resolution and by subsequent notice to pay before a given date, but no action was taken and no notice was given that the failure of a stockholder to pay before such date would forfeit her rights, a stockholder does not lose her right to take her allotted shares by failure to pay for the same before such date; and where, subsequently and before the shares have been issued to any other person, she tenders the amount due and demands her shares, she may enforce her right to receive the same by action.</p>

<p>Corporations — Liability of stockholders to creditors: Nature of liability— Liability for unpaid subscription: Stockholder induced to become such by fraud.</p> <p>Foreign corporations — Recognition, regulation and status — Certificate of right to carry on business — What is carrying on business.</p> <p>Limitation of actions—Accrual of cause of action — Liability of corporate stockholder.</p> <p>Procuring subscriptions to the capital stock of a foreign corporation and issuing the stock to the subscribers is not doing business within the meaning of section 15 of the General Corporation Law of this State.</p> <p>An action by a- trustee in bankruptcy to recover the unpaid balance of subscriptions to the stock of a New Jersey corporation, for which under the laws of that State subscribers are liable where the capital paid in is insufficient to pay the corporate debts, is not founded upon the New Jersey statute but upon the implied agreement of subscribers to meet the liability affixed by the statute to the ownership of the stock.</p> <p>The Statute of Limitations begins to run in favor of subscribers to "the capital stock in such a case, not from the time of the subscription, but only after an order is made requiring the trustee in bankruptcy to call upon the stockholders for moneys required to discharge the corporate debts.</p> <p>In such a case, a subscriber to the stock of the bankrupt corporation cannot defend an action instituted by the trustee for the benefit of the corporate creditors on the ground the officers of the corporation had been guilty of misrepresentations in securing the subscription, or had failed to carry out promises as to the location of the plant of the corporation which formed the inducement for making the subscription.</p>

<p>Cancellation of written instruments — Procedure — Persons entitled to maintain suit.</p> <p>Taxes: Assessment — Formal requisites of assessment — Description of lands; Non-resident lands: Tax titles — Presumption of regularity of sale; Effect of curative acts; Effect of section 132 of Tax Law as Statute of Limitations.</p> <p>Wills — Interpretation and construction — Terms defining quantum or duration of estates or interests — Devise with power of disposal.</p> <p>A will by which the testator leaves his estate to his widow “ for her own benefit and use during her natural life,” and directs that if any property remains after her death the same shall be divided among her daughters in such a way as the widow shall by her will direct, or, in the absence of such will, in equal shares, imports a beneficial power of disposition in the widow and her deed of real property will convey an absolute title to her grantee.</p> <p>Her conveyance of real property of which the testator died seized cannot be attacked collaterally for failure of consideration, but only in a direct proceeding to set aside the same by the grantor or her personal representatives or by some person claiming under her.</p> <p>Nor can such deed be attacked on the ground of the grantor’s mental incompetency except by some person in privity with her.</p> <p>Under the Tax Law, lands of non-residents of a tax district if occupied were required in 1900 to be assessed to the occupants, and the owner’s title could not be divested except by such an assessment.</p> <p>Nor is an assessment of lands valid where nothing is given upon an assessment roll whereby the portion assessed can be separated from other lands in the "same lot and subdivision.</p> <p>But the provisions of section 132 of the Tax Law operating as a Statute of Limitations bar the owner from assailing the deed of. a county treasurer given upon a sale of the lands for such taxes, though upon proceedings grossly irregular, many of the irregularities being jurisdictional, at the expiration of two years after such deed is recorded.</p> <p>Nor will the" failure to serve notice to redeem, nor the payment by the owner of the amount required to redeem to the county treasurer after the time to redeem has expired, affect the operation of the statute.</p>

<p>Trial before the court sitting without a jury.</p>

<p>Demurrer to complaint.</p>

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

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

<p>Execution of written instruments — Formal requisites—In general — Descriptive designation of parties in body of instrument.</p> <p>Jurisdiction—Domicile of party or location of subject-matter as affecting jurisdiction — Foreign corporations.</p> <p>Payment — Recovery back of payments — Recovery of excessive payment.</p> <p>v Where a nonresident of this State purchases. land in another State from a corporation under a contract of sale hy the acre and the purchase price is paid in this State, an action to recover an excessive payment thereon made by mistake because of a deficiency in the acreage is maintainable in the courts of this-State under section 1780 of the Code of Civil Procedure after a demand and refusal to pay.</p> <p>Where the contract of sale was made by the agent of the purchaser individually, and the deed of conveyance was to the purchaser “ trustee ” and to his heirs and assigns, the word “ trustee ” being, merely deseriptio personae, the plaintiff who as an individual had paid the purchase price was entitled under section .499 of the Code oh Civil Procedure, as the real party in interest, to recover the excessive payment.</p>

<p>Action upon a check.</p>

<p>Consideration — Right to inquire into consideration and evidence — In general.</p> <p>Evidence — Parol evidence — Collateral and independent agreements and instruments — Prior or contemporaneous agreements or instruments.</p> <p>In an action upon a promissory note, made hy defendant to his own order and indorsed to the plaintiff bank, which note was given for a debt to the bank which had been released by the maker’s discharge in bankruptcy, it is a good defense that the note was given with a conditional agreement that no suit should be brought thereon for the principal and that defendant was to pay only if he were able to do so.</p>

<p>Actios for the partition of real estate.</p>

<p>Equity — Parties — Who are necessary or proper parties.</p> <p>Partition: Right and propriety — Necessity of possession or seisin; Persons entitled: Procedure for partition — Parties — Proper parties: Decision, judgment and relief — Enforcement of collateral rights and agreements.</p> <p>Tenants in common and joint tenants — Rights and liabilities inter se — Contribution for improvements.</p> <p>The owner óf an undivided interest in lands may maintain 'an action to partition them, although he has made an executory contract to sell them and the vendee has paid part of the purchase price and is in possession.</p> <p>In such a case, if actual partition is made, the judgment may provide for setting off to the vendee the allotment of land made to the plaintiff upon the vendee’s performance of his contract.</p> <p>All persons having or claiming an interest in lands- sought to he partitioned may be made parties -to the action in order to settle all controversies to the title in one suit.</p> <p>In an action in equity it is not necessary that the alleged causes of action should affect all of the defendants to the same extent or in the same manner inasmuch as a court of equity has the power to so mold its judgments as to do equity, between all the parties.</p> <p>Where a’tenant in common makes improvements to the common property which are not in the nature of repairs or required for the protection or preservation of the property, he cannot charge the shares of his cotenants with the proportionate part of their cost, in the absence of their consent or agreement.</p>

<p>Motion for interlocutory judgment in an action for partition and to confirm report of referee.</p>

<p>Aotiom' for specific performance of a contract for the sale of certain land.</p>

<p>Infants — Contracts — Ratification of contract; Avoidance of contract — Time' for disaffirmance.</p> <p>An infant may disaffirm a deed of trust made for his benefit within a reasonable time after reaching full age.</p> <p>Where an infant executes a deed of trust for Ms benefit, the fact that for a year after becoming of age he received the interest from the trustee not knowing that he was entitled to dis-affirm the deed of trust but accepted no income to which he was not entitled constitutes no ratification of the deed of trust.</p> <p>Where, pending a suit to disaffirm Ms deed of trust, the infant was advised by counsel that the instrument could be revoked by consent - of the parties thereto, and upon the resignation of the trustee the infant under a power in the deed designated „a substituted trustee who entered into an agreement annulling the deed of trust, and the infant upon learning that the revocation by consent was ineffective brought another suit to disaffirm the deed of trust, he was not estopped from maintaining the suit by the execution of the instrument, the object of which was to invalidate the original deed of trust.</p>

<p>Trusts — Creation and declaration — Sufficiency.</p> <p>An agreement by the owner of certain real property to pay over for another’s benefit whatever sum the owner may realize on its sale over and above a certain sum, in consideration of the execution of a release by the other person, does not constitute a trust of the real property nor impose an obligation upon the owner to sell it; and, on the owner’s death without having sold it, the other person cannot maintain an equitable action to .compel the sale of the property or to recover from the personal representatives of the deceased.</p>

<p>Evidence — Weight and sufficiency — Inferences — Contract to make mutual wills.</p> <p>Specific performance: Subject-matter of enforceable contracts—Agreement to make or not to make will: Actions — Evidence — Sufficiency—Agreement to make will.</p> <p>Wills — The testamentary instrument or act — Revocation and alteration— Right to revoke or alter and how accomplished — Mutual wills.</p> <p>The mere making of mutual wills is insufficient to indicate a binding contract to make such wills, irrevocable after the death of either party, even though the provisions in- both wills are identical, though the similarity in the terms of mutual wills may be regarded as some evidence of the existence of such a contract; but the contract must be clearly and definitely established, either by direct evidence or by such facts and circumstances as will warrant the inference that it was made.</p> <p>Where, however, such a contract is established between husband and wife and is executed by one of them, equity will enforce performance on the part of the survivor.</p>

<p>Cause of action — Character of cause of action — Ex contractu or ex delicto.</p> <p>Pleading — Matters relating to pleadings generally — Construction of pleadings — Construction of pleadings so as to sustain verdict or judgment.</p> <p>A complaint which alleges that plaintiff delivered goods to defendant and defendant agreed to return the same on demand,- and that plaintiff afterward demanded the return of the goods hut defendant neglected and refused to return them and converted and disposed of them to his own use, without any allegation of scienter or of a wrongful or unlawful intention, will be held to be founded on breach of contract and not upon tort for the purpose of sustaining the judgment of the court below appealed from.</p>

<p>Justices of the peace—Appeal and error — Review — Returns — Questions presented for review — Matters not apparent.</p> <p>Negotiable instruments—Actions — Presumptions and burden of proof —As to title.</p> <p>Upon an appeal from a judgment of a justice of the peace, the court will not assume, matters against either side as to which the record is silent.</p> <p>In an action upon a promissory note, where the plaintiff alleges a legal title thereto by indorsement, it may be doubted whether the mere physical possession of the note upon the trial is sufficient to support the allegation.</p> <p>And where, in such a case, there was strong evidence of payment, uneontradieted except by the production of the note, a judgment for the plaintiff should be reversed and a new trial granted.</p>

The plaintiff alleges that, on October 25, 1910, the defendant was a forest, fish and game protector of the State of Xew York, and as such officer was authorized by law to make arrests of persons charged with having violated said “ Fish and Game Laws ” of said State; and that, on or about said 25th day of October, 1910, while defendant was such fish and game protector, he at the city of Middletown wrongfully and unlawfully and by the use of threats made to the plaintiff that…

<p>Mechanics’ liens — Foreclosure: Pleading — Complaint: Judgment —</p> <p>Rendition of personal judgment; Form of judgment in action in court not of record.</p> <p>Municipal Courts: Jurisdiction — City Court of Oneonta: Procedure — Judgments — Form of judgment in action to foreclose lien.</p> <p>A complaint, in an action to foreclose a mechanic’s lien, that fails to set forth the name and residence of the lienor, the time when the first and last items of work were performed and materials furnished, or any facts from which the same might he fairly inferred, is not in substantial compliance with the provisions of the Lien Law and does not give the court jurisdiction to proceed with the action of foreclosure.</p> <p>In such a case, the City Court of Oneonta, a statutory court of limited jurisdiction, has no power to amend the original complaint annexed to the summons in the particulars mentioned and thereby acquire jurisdiction to render judgment of foreclosure.</p> <p>Nor can an inferior local court render a judgment directing the sale of the premises against which a lien has been filed like that of a court of record, but it can render only a simple money judgment to be enforced by execution authorizing the sheriff to sell the right, title and interest which the judgment debtor had in the land at the time the lien was filed.</p> <p>Where the complaint alleged that plaintiff and the husband of the owner, with the knowledge and consent of the latter, rendered the services and furnished the materials for which the claim is made, it states a cause of action against both, and a motion to dismiss as to the husband is properly denied.</p> <p>A transposition of tlie dates of the first and last items of labor and materials in the notice of lien is not fatal, where it may be fairly inferred when the first and last items were furnished.</p> <p>A demurrer to a complaint on the ground that it does not state facts sufficient to constitute a cause of action cannot be sustained simply because the complaint does not demand the precise judgment to which the facts alleged would entitle the plaintiff.</p> <p>In an action to foreclose a mechanic’s lien in a statutory court of limited jurisdiction, under a complaint which prays for the sale of the premises affected- by the lien and the application of the proceeds to the payment of plaintiff and for such other relief as may be proper, a personal judgment against the defendants for the amount of the claim may be rendered in a proper case.</p>

<p>¡Motion to dismiss indictments for violating section 36 of the Insurance Law.</p>

<p>Application to transfer a convict in a State prison to Federal authorities.</p>

<p>Constitutional law — Rights guaranteed to persons accused of crime — Compelling accused to give evidence against himself.</p> <p>Where a defendant in a criminal action is subpoenaed and compelled to be a witness against himself before the grand jury which indicted him for perjury in having previously sworn falsely before another grand.jury regarding the disposition and receipt of certain money, the property of his brother, ids constitutional rights are invaded and the indictment must be dismissed, but with direction that the charge of perjury be submitted to another grand jury-</p>

<p>Demurrer to an indictment.</p>

<p>' Proceeding upon the filing of the annual account of the committee of an incompetent person.</p>

Appeal by the defendant from a judgment of the Municipal Court of the city qf New York, borough of Manhattan, fourth district, in favor of plaintiff for $257.56 after a trial by a judge without a jury.

Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, rendered in favor of the defendant after a trial before the court without a jury, and from an order denying plaintiff’s motion for a new trial.

<p>Brokers — Compensation — Performance of duty by broker — Time in which negotiations must be concluded: Bargain effected by principal or others.</p> <p>Where a broker is employed to procure mortgage loans' on real property and no limit of time for the performance is fixed in the agreement, it must be performed within a reasonable time; and, where the closing of the transaction has been postponed from tima to time for the convenience of the parties or on account of objections to the title, and on the final day fixed the borrowers fail to</p> <p>' appear and afterwards say they do not want the money; and it appears that the brokers had produced lenders ready and able to furnish the money, they are entitled to recover their commissions for procuring the loans.</p> <p>In such a case, to limit the time for performance where the borrower is willing to stand upon the soundness of his title, he should demand performance within a fixed but reasonable time.</p> <p>Lehman; J., dissents.</p>

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

the City Court of the city of Hew York, overruling plaintiff’s demurrer to the second and third separate defenses contained in the amended answer. • •

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

Appeal by defendant from a judgment of the City Court of the city of New York, rendered on motion of plaintiff’s counsel made upon the pleadings and on the opening address of the defendant’s counsel.

Appeal by plaintiff from -an order of the City Court of the city of Hew York, granting a motion to preclude plaintiff from offering evidence because of her failure to .serve a bill-of particulars pursuant to order.

Appeal by the defendant from an order of the City Court of the city of Hew York, directing that the above entitled action be severed and that judgment he entered in favor of the plaintiff, and from the judgment entered upon said order.

Appeal by the plaintiff from an order of the City Court of the city of Hew York denying the motion of the plaintiff to vacate an order for his' examination before trial.

Appeal by the plaintiffs from a judgment of the City Court of the city of ¡New York dismissing the complaint for failure to make out a cause of action.

<p>Appeal by the plaintiff from a judgment of the Municipal Court of the city of Flew York, borough of Manhattan, seventh district, rendered in favor of the defendant, and from an order denying a motion for a new trial and to correct the judgment as entered.</p>

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

Appeal by the defendant from a judgment of the 'Municipal Court of the city of Eew York, borough of Manhattan, sixth district, in favor of the plaintiff, entered by direction of the court.

Appeal by the defendant from an order of the City Court of the city of Mew York denying the motion of the defendant to interplead a third person as a party to the action.

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

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

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

Appeal by the defendants Shurman and Levy from a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, sixth district, rendered in favor of the plaintiff.

Appeals by the defendants Wolf and David Shindel from a judgment of the Municipal Court of the city of ¡New York, borough of Manhattan, second district, entered upon a verdict rendered in favor of the plaintiff.

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

<p>Common schools — Commissioner of Education — Powers and duties — Power of courts to review.</p> <p>The Education Law puts upon the Commissioner of Education full responsibility for the management and control of the district schools and of their trustees and requires of him a strict ^enforcement of the law applicable thereto; and his decision upon all disputes within his jurisdiction brought before him by appeal or upon petition in case of a violation of the school law is final.</p> <p>Where, by an order of the Commissioner of Education, a trustee of a school district was directed to call a special meeting of the ■voters of the district and submit thereat a proper and legal annual report of the receipts and expenditures of the trustees for the preceding school year, and during the meeting he used offensive and insulting language towards one who was a taxpayer of the district, threatening him with bodily harm, and, after the meeting and while the parties were upon the steps of the school-house, the trustee assaulted the taxpayer, such misconduct constitutes a . wilful violation of his duty as trustee; and the decision of the Commissioner of Education removing said trustee from office, as authorized by section 95 of the Education Law as amended, is final and conclusive and not reviewable by the courts.</p>

<p>Cebtiobabi to review special franchise tax assessment.</p>

<p>Boundaries — Location of calls — Roads or ways as boundaries — Beginning point on side of way.</p> <p>Evidence — Presumptions — Performance of official duty.</p> <p>Highways — Change of grade — Right to compensation or liability for damages caused by change of grade — Measure of compensation.</p> <p>Upon the production of a map from a public office where it is required by statute to be filed, compliance with all statutory provisions necessary to the legality of its filing will be presumed.</p> <p>Where the city of New York had taken steps looking to changing the grade of a street and had destroyed the old grade in front of, at or adjoining certain premises, the owner is entitled to substantial damages for injury to buildings subsequently removed.</p> <p>The owners of the fee of a street subject to the public easement are entitled, to substantial damages when the city takes the fee and where substantial damages are awarded to some owners and only nominal damages to others the latter’s objections to the report of the commissioners should be sustained.</p> <p>But, in such a case, the owners are not entitled to consequential damages to their abutting lands not taken.</p> <p>A description of property commencing at the intersection of the northerly side of a street with a creek shows an intention to exclude the fee of the street.</p>

<p>Eminent domain — Measure of compensation — Considering present use of property — Considering most valuable use possible — Valuation by lot- system.</p> <p>The owner of lands sought to be condemned for public use is entitled to have it valued for the most valuable available use for which it is then marketable; and it is immaterial whether he may or may not have actually put his land to any such use or allowed it to remain entirely unused.</p> <p>Where a parcel of land sought to be acquired through condemnation proceedings is located upon- the borders of the thickly settled portion of a city almost within stone’s throw of a railroad station and with two lines of trolley cars passing by its borders, testimony offered by the owner of said parcel of land, to establish its value before and after the taking of the easement therein, by showing the value of various lots or plot subdivisions thereof, is competent, and its exclusion deprives the owner of his statutory right to introduce evidence and is erroneous.</p> <p>A denial of the motion to confirm the report of the commissioners because of such exclusion of testimony and referring the matter back to them is not an intimation that their award for said parcel should or should not be greater than that which they have already attempted to make.</p>

Motion to vacate order confirming report of commissioners as to parcel YSa, and to remit the matter as to said parcel to said commissioners for further hearing and report, or for other proper relief.

<p>Civil service: In general — Examinations — Exemptions — Confidential positions; Conclusiveness and finality of action of officers: Civil and criminal proceedings — Remedies — Mandamus.</p> <p>The relation which renders a position confidential within the meaning of the Civil Service Law exists only where the appointing power is called upon to repose trust and confidence in the appointee and is pecuniarily liable for his acts.</p> <p>The question whether the position of stock transfer tax examiner in the office of the State Comptroller is a confidential one is one of law for the courts and is not within the discretion of the State Civil Service Commission.</p> <p>The position of stock transfer examiner in the office of the State Comptroller is not a confidential one under the Civil Service Law.</p> <p>Under section 13 of the Civil Service Law the State Civil Service Commission is limited to the classification of positions in the exempt class, other than those specifically exempted by said section, to those “ subordinate offices for the filling of which competitive or noncompetitive examinations may be found to be not practicable.”</p> <p>Where, at the time of relator’s appointment as a stock transfer examiner in the office of the State Comptroller, the position was in the exempt class by reason of the classification made by the State Civil Service Commission approved by the Governor, and he continues in the service after said position is reclassified in the competitive class, the action of the Commission in placing the position in the exempt class by again reclassifying it is illegal.</p> <p>The relator in such case is entitled by mandamus to contest the validity of such reclassification though the resolution of the State Civil Service Commission making such reclassification has not been approved by the Governor.</p>

<p>Application for a peremptory writ of mandamus for the reinstatement of relator to the position of patrolman in the police department of the city of Mew York.</p>

<p>Supplementary proceedings: Property which may be reached — Future earnings and after acquired property: Order for payment or de-</p> <p>livery of property — Order against third person.</p> <p>In supplementary proceedings for the examination of. a third party, the court will only order delivery of the property of the judgmeiit debtor in the hands of the third party at the time of the commencement of the proceeding, and not property which he may have received afterward.</p>

<p>Foreclosure of mortgages on land — Foreclosure by action and sale — Costs — Costs in surplus proceedings.</p> <p>In a proceeding for the distribution of surplus moneys arising from a sale upon the foreclosure of a mortgage the court cannot grant an extra allowance of costs.</p>

<p>Corporations — Officers and agents — In general — Change in number of trustees or directors.</p> <p>A provision in a certificate of incorporation that the number of directors fixed by the certificate shall not be changed except by the unanimous consent of all the stockholders is a valid and binding limitation upon the powers of the stockholders and is authorized by section 10 of the General Corporation Law.</p>

<p>Application under section 84 of the Insanity Law for the approval and allowance of stenographer’s fees.</p>

<p>Interest — Demands bearing interest — Judgment — In replevin. Replevin — Trial, judgment, enforcement of judgment and review — Judgment — Alternative judgment — Interest.</p> <p>In an action to recover the possession of personal property, where the judgment awards the return of the chattel or a specified sum of money, the plaintiff cannot have interest upon such sum where he delays to enforce his judgment.</p>

<p>Action for the specific performance of a contract for the sale of real property.</p>

<p>Motion to set aside verdict for plaintiff and for á new trial.</p>

Motion to set aside the verdict and for a new trial in an action to recover damages for causing- the death of plaintiff’s intestate.

<p>Master and servant — Liability for injuries to third persons: Relation of parties — Crew of vessel: Actions — Admissibility of evidence.</p> <p>Where under the charter party a ship owner hands over to the charterer his ship, with officers and crew, to run in the latter’s business, and insures the vessel against loss and the charterer against liability for negligence in the ship’s operation, the charterer and not the owner assumes the obligations of a carrier and becomes the owner pro hao vice as respects all matters pertaining to the handling and delivery of cargo, but not as regards the navigation of the ship.</p> <p>Where under such a contract the charterer obtains disposal of the winches in discharging, and, having disposal of the appliance for this purpose, is provided with the men who then do the charterer’s work and not the work of the ship owner, they become the servants of the charterer, and he is liable for injuries arising from their negligence! .</p> <p>In such a case, evidence that among marine insurers a time charterer is considered to have no insurable interest in the ship itself is inadmissible and is properly, rejected.</p> <p>That the temporary relation of master and servant may exist outside of that in which the servant is appointed and paid is accepted in maritime law and is especially applicable to ships under time charter, where the criterion of responsibility is not in whose pay the servant is but whose duties and liabilities he is at the time performing.</p>

<p>Costs — When allowable — Motion costs generally — What is a motion.</p> <p>An application for an order directing the issuance of executions against the wages of a judgment debtor is not a motion upon which costs may be awarded, within section 3236 of the Code of Civil Procedure; and costs should not be awarded thereon.</p> <p>Semble, costs of a motion are in the discretion of the court and the exercise of such discretion cannot be controlled by stipulation.</p>

<p>Motion for an order adjudging the defendant in contempt for non-payment of alimony.</p>

<p>Action for an injunction restraining defendant from raising the rates of .assessment.</p>

Stockholdeb’s action to set aside as unconscionable a verdict by which the defendant corporation retained the defendant Elannery as attorney to represent it in certain proceedings to assess the damages caused by change of grade of a street.

<p>Assignment — Actions — Instructions.</p> <p>Contracts — Interpretation of contract — Particular agreements — Agreements for payment out of proceeds.</p> <p>Orders — Acceptance — Construction.</p> <p>An order given by an owner of fruit upon a commission merchant to pay a third person a certain sum from the proceeds of</p> <p>sale of the fruit operates'as an equitable assignment to that extent of the amount due the owner; and, if there is nothing due from the commission merchant to the assignor after satisfying the necessary expenses of the transaction, there is nothing for the assignment to operate upon.</p> <p>In such a case, in an action by the assignee against the commission merchant, where there was no question of fraud, it was</p> <p>not error to charge the jury that “whether defendant told plaintiff or not about the advances of ninety cents a box on the oranges, that that would make no difference if the defendant actually, in good faith, advanced the money, and if after deducting the advances and freight and expenses they found no funds in defendant’s hands due to Tinaglia (the assignor), then defendant was entitled to a verdict.”</p>

<p>Sales — Nature of contract — Termination or abandonment of contract.</p> <p>Where a company engaged in selling motor cars enters into a contract with manufacturers of motor cars by which it acquires the exclusive right to sell the latter’s cars within a certain territory during a certain period, and the contract provides, among other things, that the dealer is to deposit with the manufacturer $100 on each and every car purchased which is to apply on the purchase price of each ear when shipped and to be deducted from invoice</p> <p>■ and sight draft, and the company deposits with the manufacturer upon the making- of the contract $200 and orders two cars to be shipped as desired by the company during said period, and the company thereafter gives an order for one car and the manufacturer credits $100 of the deposit upon the invoice of the car ordered and no other order is given by the company for a car during the period specified in the contract, the company cannot maintain an action against tlie manufacturer after the expiration of such period to recover the balance of the deposit.</p>

<p>Counties: County treasurer—In general: Property and fiscal management in general — Application of funds.</p> <p>Money received — In general.</p> <p>Trusts — Implied trusts — In general.</p> <p>Where commissioners charged with the duty of constructing sewers in adjacent municipalities in Monroe county, in pursuance of tlieir statutory authority issued obligations whose payment was provided for by assessments upon the property benefited, but for which payment the credit oE no municipality was pledged; and where by a subsequent legislative act the power and authority of the commissioners was terminated, and the moneys and property in their hands were turned over to the treasurer of one of the municipalities, which funds as to the custody of the same by such treasurer, according to the terms of the act, were to be deemed as funds of the county of Monroe, and the treasurer was directed to redeem and cancel such obligations and accordingly called certain of such obligations as lie was authorized by their terms to do and paid off the same, without at the time any ground for expectation that the fund would be inadequate, but it finally resulted that the fund was inadequate to pay all of said obligations in full, and the time in which further assessments might- he paid had expired, and there was no way in which those who had not been paid in full and for whose payment the remaining fund was inadequate could obtain payment except by legislative action, in an action by holders of unpaid certificates, suing in behalf of themselves • and others similarly situated, held:</p> <p>The county treasurer in whose custody the fund was placed by law was not a trustee for the certificate holders and could not maintain an action against the certificate holders who had been paid in full to recover back the amount paid- for any excess of their pro raid share of the whole fund, and there was no right in him which the unpaid bondholders could enforce, in an action in equity, to recover back such excess and thus enforce contribution for their own payment.</p> <p>The paid bondholders occupied a position analogous to that of a fortunate or diligent creditor' who secures payment while others remain unpaid through the exhaustion of the debtor’s resources; and they cannot be compelled to repay the moneys received by them in satisfaction of their claims to make good the deficiency of less fortunate holders of similar obligations.</p> <p>Nor do defendants whose obligations were paid in full by their application by the holders to the payment of assessments against them for the construction of the sewers, as was authorized by the act providing- therefor, stand in a different position from that of those who were paid in money.</p>

<p>Execution of written, instruments — Formal requisites — In general — Execution in blank.</p> <p>Where one having an interest in the title to real property delivers to one who is in open and notorious possession thereof a deed thereof - with a blank space in which the name of the grantee is intended to be" inserted, and at the same time authorizes him to insert his name therein, it suffices to transfer to him the grantor’s title and interest, although the grantee puts the deed in his safe with other papers and dies without having ever inserted his name.</p>

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

<p>Husband and wife — Enticing and alienating and criminal conversation —■ Pleading — Complaint — Intent.</p> <p>In an action for the alienation of a-wife’s affections the intent of the defendant should be alleged.</p> <p>A complaint alleging that defendant alienated the affections of plaintiff’s wife and deprived him of her love and induced her to leave him is demurrable in the absence of an allegation of improper relations between them or wrongful intent on the part of defendant.</p>

<p>Municipal corporations — Taxation and water rents — Water rents.</p> <p>Where an incorporated village, after it had granted to an incorporated company the right to operate a water system within a portion only of the village limits, installed and operated a water system of its own, the company cannot maintain an action to restrain the collection of taxes levied against its property, located within the village, for the purpose of paying bonds issued and expenses incurred for the maintenance of the municipal water system.</p>

<p>Separate demurrers of the defendants McKane and Bowers to the amended complaint upon the grounds that two causes of action have been improperly united therein and that it does not state facts sufficient to constitute a cause of action.</p>

<p>Domicile — Change of domicile — Particular examples.</p> <p>Judgment—Actions on judgments — Evidence admissible under pleadings.</p> <p>Jurisdiction — Domicile of party or location of subject-matter as affecting jurisdiction — Non-residents.</p> <p>The jurisdiction of a foreign court of general jurisdiction to render a judgment in personam depends upon the existence of defendant’s legal domicile in the nation in which the judgment is rendered.</p> <p>In an action against a defendant who claims a domicile in this State, on a judgment rendered against him in 1907 by a competent court of general jurisdiction of the Kingdom of Bavaria, Germany, proof that in 1901 he left Germany and came to the</p> <p>- city of New York where he has ever since continuously resided and been engaged in business, coupled with the fact that, about a year prior to the commencement of the action in which the foreign judgment is rendered, he duly filed a declaration of his intention of becoming a citizen of the United States, clearly establishes the necessary element of .residence and intention to create a domicile in this State.</p> <p>A denial in the answer of the allegation of the complaint that, under the service of the summons and complaint by publication upon the defendant, the foreign court acquired jurisdiction over him and of the subject-matter of the action puts in issue the question of the jurisdiction' of the foreign court.</p>

<p>. Action for annulment of marriage on the ground of fraud.</p>

Action to recover salary as fireman in the fire department of the city of Oswego. A jury having been waived, the above action was moved for trial before the Oswego county judge, without a jury, at his chambers at Oswego, N. Y., on the 6th day of March, 1911, and. the case was finally submitted April 6, 1911.

<p>Accumulation: What is an accumulation — Effect of invalidity.</p> <p>Wills — Interpretation and construction—Administration of estate and execution of powers and trusts and compensation therefor — Rules and implications — Powers of sale or disposal implied.</p> <p>Where real estate was devised in trust to pay to testator’s niece $2,500 yearly out of the net rental, any surplus income after the payment of interest, taxes, etc., to he reserved to meet unusual or unexpected expenses or to be accumulated for the benefit of the property, the attempted accumulation is void under section 61 of the Real Property Law and the entire net income of the trust estate goes to testator’s niece during her lifetime.</p> <p>Where the will provided that, in case of the death of testator’s niece during the lifetime of her eldest son, said income was to be paid to her children then living and at the death of said son the property was to be conveyed in equal shares to her children then living, or should there be no children or grandchildren of said niece then living, it was to revert to testator’s heirs-at-law, the remainder, whether it continued as real estate until the death of testator’s niece and her eldest son or had been sold by the trustees under their discretionary power of sale, went to such of the children of testator’s niece as survived the trust.</p> <p>Where a devise of real estate directs that should a sale of the property become necessary or be deemed advisable by the trustees the net proceeds should be invested in certain securities, the trustees are invested with a discretionary power of sale.</p>

This case was commenced in justice’s court and brought into this court by appeal for a new trial. Having been brought to trial before the court and a jury, a verdict was directed for the plaintiff, and this is an application to set aside the verdict and for a new trial.