Volume 72 — New York Miscellaneous Reports

Appeal by the plaintiff from a judgment of the City Court of the city of Rew York dismissing the complaint upon the close of the plaintiff’s case.

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

Appeal by 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 defendant Samuel Wiesenfeld from -an order of the Special Term of the Oity Court of the city of blew York, adjudging that he was served with a summons and complaint in the above entitled action.

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.

<p>Money received—Presumptions and burden of proof.</p> <p>In an action for moneys had and received, the plaintiff need not prove non-payment, hut the burden is upon the defendant to allege . and prove payment.</p>

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

This is an appeal by the defendant from an interlocutory judgment of the City Court of the city of Hew York, sustaining a demurrer to the defendant’s supplemental answer, on the ground that such answer was insufficient in law on the face thereof.

Appeal by the plaintiff from a judgment in favor of defendant, rendered in the Municipal 'Court of the city of Hew York, borough of Manhattan, first district, dismissing the complaint on the merits.

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

Appeal by the plaintiff from a judgment of the Municipal Court of the city of blew York; borough of Manhattan, fourth district, rendered in favor of the defendant, and also from an order denying plaintiff’s motion for a new trial. '

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

Appeal by plaintiff from an interlocutory judgment of the Municipal Court of the city of ¡New York, borough of Manhattan, third district, sustaining defendants’ demurrer to the complaint.

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

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

Appeal by the defendíante from a judgment of the Municipal Court of th¿ city of Hew York, borough of Manhattan, first district, rendered in favor of the plaintiff, after a trial before the court without a jury.

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

<p>Execution of written instruments — Formal requisites — In general — Execution in blank.</p> <p>Although a person to whom an instrument for the payment of money containing unfilled blanks is, delivered by the person who signs it has a prima facie authority to complete it by filling up the blanks, yet where the signer testifies, without contradiction, that he gave no such authority but signed the instrument to enable insurance agents to get voting strength through policies and a bonus and on the statement that he would get free insurance for thirty days and then, if he wished to retain the - policy, another arrangement could be made for the payment of premiums, the proof is sufficient to rebut the presumption of authority to fill the blanks in the instrument.</p>

<p>Contracts—Validity of contracts — Contracts involving violation of positive statute — Contract of insurance company for rebate.</p> <p>Cumulative remedies — Exclusive remedy.</p> <p>Insurance companies — Control and regulation — In general — Discrim- . ination prohibited.</p> <p>Negotiable instruments — Indicia or requisites—Unconditional.-</p> <p>An instrument in the form of a letter, by which the person insured by a policy of life insurance acknowledges the receipt of the policy and authorizes it to be “placed in force” and promises to pay a certain sum in a specified manner for the first annual premium, is not intended to be a present unconditional engagement and is not a negotiable instrument.</p> <p>An agreement for a rebate upon the annual premium of a life insurance policy is in contravention of law and void.</p> <p>Section 89 of the Insurance Law does not provide a specific penalty for giving rebate which should be considered exclusive, but simply provides the manner in which the Superintendent of Insurance may restrain future disobedience. •</p>

Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough >of Manhattan, seventh district, entered upon a verdict rendered in favor of the plaintiff and from an order denying a motion for a new trial.

<p>Receivers — Administration and management of the property — Actions by and against receivers — Application for leave to sue receiver— Notice-to receiver.</p> <p>■ ‘Where a receiver in supplementary proceedings is in possession of mortgaged chattels and claims that the mortgage is fraudulent and that she has been authorized and directed to bring an action to have it adjudged void, the court should not grant leave to seize the property without giving the receiver an opportunity to be heard.</p>

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

Appeal by the defendant from an order of .(he City Court oif the ci-ty of Hew York, denying a motion to ist-ay the plaintiff from proceeding with the trial of 'this action, upon the ground of the non-payment of a judgment for cost's of a previous action instituted by him.

Appeal by the plaintiff from a judgment in favor of defendant, rendered by a judge sitting without a jury, in the Municipal Court of the city of Hew York, borough* of Manhattan, ninth district.

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

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

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

<p>Municipal Courts — Jurisdiction — Municipal Court — Actions involving title to real property.</p> <p>In an action for rent brought in the Municipal Court of the city of New York, an answer, setting up that' a person other than plaintiff was the owner of the leased premises and that prior to the time the alleged rent became due defendant had been evicted from the premises by said owner who had a title thereto paramount to that of the plaintiff, does not put in issue the title to the property within the meaning of section 179 of the Municipal Court Act.</p>

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

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

Appeal by the plaintiff from an order of the Municipal Court of the city of Yew York, borough of Manhattan, second district, setting aside a verdict and granting a new trial.

Appeal by defendant, Charles Spilka, from a judgment of the City Court of the city of New York, in favor of plaintiff, entered upon a verdict directed by the court, and from an order denying a motion for a new trial.

<p>Election of remedies — Acts constituting election.</p> <p>Former adjudication—Who. are concluded — Parties and privies in general.</p> <p>Partnership — Limited partnerships — Renewal — Renewal or new partnership.</p> <p>Where a limited partnership certificate recited that M. and McC. were the general partners and the firm of Y. & Bros, was the special partner, for the term of one year, and that the special partner had contributed $25,000, the filing a year later of a new certificate which recited that the persons named therein were desirous of continuing a limited partnership, the certificate for which had been duly filed the year before, and, further, that the general partners were M. and McC. and that the special partners were the three defendants each of whom had contributed $8,333.33, the latter certificate constituted a new partnership; and, as the defendants, the three new special partners, had not actually paid their contribution in cash as recited in the certificate, but it was intended to represent the interests of the defendants in the contribution made by Y. & Bros, under the former certificate, they were liable as general partners under section 34 of the Partnership Law.</p> <p>The recitals in both certificates as to the identity of the special partners could not be considered substantially the same in support of a claim that the new certificate on its face purported to be only one of continuance of the previous partnership.</p> <p>A judgment in a prior action against M. and McC. was not res adjudicada as to whether the defendants in the present action who were not parties to the prior action were special partners.</p> <p>The judgment in the prior action did not constitute a determination not to hold defendants liable as general partners.</p>

<p>Motions and orders — Motion papers — In general — Form and contents — Separate matters not to be included in a single motion.</p> <p>Pleading: Replication or reply and subsequent pleadings — Necessity for reply: Demurrer — In general — Withdrawal — Leave of court — Terms; Right to demur to answer or counterclaim—'When demurrer to answer lies.</p> <p>Where a defense .consisting of new matter is interposed the plaintiff in his discretion may either demur or rest upon the provisions of the Code of Civil Procedure that the defense is deemed to be controverted by traverse or avoidance as the case may require.</p> <p>Where plaintiff elects to demur to a defense consisting of new matter, the. demurrer may be withdrawn only by leave of the court.</p> <p>Where leave to withdraw the demurrer would cause distinct injury to the defendant, a motion for such relief should not be granted except upon terms which will make the defendant whole.</p> <p>Where a demurrer has been noticed for argument, costs before and after notice of trial should be awarded as a condition for an order granting leave to withdraw the demurrer.</p> <p>Whether plaintiff should be required to reply to the new matter should be the subject of a separate motion.</p>

<p>Motion by the Superintendent of Banks for leave to interpose a reply.</p>

Motion by the defendant to make John R. Voorhis a party defendant under the provisions of section 820 of the Oode of Civil Procedure, and to open its default in serving an answer.

<p>Motion to discharge a receiver in sequestration pro* ceedings.</p>

Motioh by plaintiff for a new trial upon the court’s minutes, and upon affidavits charging improper conduct of trial jurors, etc.

Order to show cause why an order should not be made to review the action of the clerk of the court in refusing to allow and tax certain costs.

<p>Motion to punish defendant for contempt in failing to produce hooks under order of the court.</p>

<p>Eminent domain: Power in general — Necessity for taking: Rights acquired by condemnation proceedings and liabilities assumed—■ Public character of ownership.</p> <p>Taxes — Exemption from taxation — Property unnecessary for public use; Exemption as affected by time of accrual of tax — In the city of New York.</p> <p>The fundamental right to condemn private property for public use depends upon public necessity which is a sine qua non to the taking.</p> <p>The public character of the ownership by a city of private property taken under the right of eminent domain continues during all the time the city possesses it, and the mere fact that said property is afterward found to be unnecessary for the object for which it has been condemned works no change.</p> <p>Property of a municipal corporation is not subject to taxation, whether it be employed for public use, or held in a priv-ate capacity in trust for the public.</p> <p>In the city of New York the status of taxable property is fixed on the second Monday of January in each year.</p> <p>Where, on the second Monday of January, 1910, the city of New York was the owner of property within its corporate limits, acquired for a public use and, therefore, exempt from taxation under section 4(3) of the Tax Law (Consolidated Laws, ch. 62), and the property was sold in the following May, having been found' unnecessary for the object for which it had been condemned, an assessment against said property for the year 1910 will be vacated as unauthorized, upon the ground that the property was exempt from taxation.</p> <p>The fact that said property was found to be unnecessary for the objects for which it had been condemned did not justify its taxation on the theory of municipal private ownership.</p>

<p>Eminent domain — Condemnation proceedings — Commissioners.</p> <p>tV here after the three commissioners appointed in condemnation proceedings to appraise the damages caused by the taking of land for railroad purposes had viewed the premises and pending a hearing to take the testimony one commissioner died, the surviving commissioners, under section 3370 of the Code of Civil Procedure and section 41 of the General Construction Law, have ample power to continue the work of the commission.</p> <p>There is no power specified in the Condemnation Law for the appointment of a successor to a deceased commissioner of appraisal.</p>

<p>Costs: Amount — Items of expense — Disbursements: Determination</p> <p>of right to and amount of costs—Application — Proof on application.</p> <p>Under section 3267 of the Code of Civil Procedure a party is entitled to tax only such actual and necessary disbursements and expenses as he has made or incurred, and his bill 'of costs must be verified by affidavit.</p> <p>. Where an appellant, in anticipation of a possible appeal to 'the Court of Appeals, had printed more copies of the record than were required for use in the Appellate Division at an additional expense of $31.20, and, on appeal to the Court of Appeals, additional printing was done at an expense of $6.45, and the sum taxed represents what the cost of printing the record in the Court of Appeals would have been if it had been printed by itself for use on that appeal, a motion to reduce the sum taxed to $37.65 should be granted.</p>

<p>Civil service—In general—Officers subject to the act — Transfer tax appraisers.</p> <p>The position of transfer tax appraiser is one for which .a competitive examination is practicable and the State Civil Service Commission may not classify the position as exempt, it being neither specifically exempted by statute nor confidential within the meaning of the Civil Service Law.</p>

<p>Municipal corporations — Officers and agents — Officers and employees other than mayor and common council: Power to appoint to office — Power of superintendent of buildings of New York city: Resignation, removal, discharge and suspension — Power to remove — Power lost hy discontinuance of position: Abolition of office.</p> <p>The superintendent of buildings of the city of New York in appointing subordinate officers is limited by the amount of the appropriation for salaries. »</p> <p>The appropriations for salaries are made hy the hoard of aider-men and included in the yearly budget which specifies each position and the salary affixed thereto, and thereafter during the current year salaries can only be provided for new positions by the transfer by the board of estimate and apportionment of salaries appropriated for positions that have been discontinued.</p> <p>Where the superintendent of buildings requests a readjustment of the positions in his forces and the transfer of moneys between certain accounts requisite to' effect such readjustment and the board of estimate and apportionment approves the readjustment and provides salaries for new positions created hy such readjustment by transferring the salaries of positions discontinued, such discontinued positions are left without salaries and the incumbents can no longer contihue in them.</p> <p>After a position has been discontinued by transferring the salary appropriated therefor to a new position, the superintendent of buildings cannot remove the incumbent upon charges preferred against him.</p>

<p>Estoppel — Equitable estoppel and estoppel in pais — Facts creating - estoppels — Ratification and affirmance — Receiving benefits or proceeds.</p> <p>Frauds, Statute of — Operation and effect of statute — Adoption or ratification of void contract.</p> <p>Although it is provided by statute that a lease for. more than a year must be in writing and subscribed by the lessor or his agent “ thereunto authorized by writing,” where the husband of the owner of real property makes a lease of it in writing and signs the lease with his own name and the wife ratifies and confirms it by receiving the rent with knowledge of the facts, she may not afterwards repudiate the lease and treat the tenancy as a tenancy from month to month.</p>

Summary proceedings were taken before Justice of the Peace McKenzie for the removal of the appellant as tenant from certain lands. The proceedings were tried before a jury and upon their verdict a final order, dated July 8, 1910, was granted, directing that the possession of the property be delivered to Clement Demaron the petitioner. From that final order, upon July eighteenth, an appeal was taken by the tenant.

<p>Motion to vacate order fixing amount of undertaking to discharge a mechanic’s lien.</p>

<p>Motion to vacate an order in proceedings supplementary to execution.</p>

<p>Motion to vacate order in proceedings supplementary to execution.</p>

<p>Contempt: What constitutes — Refusal of witness to answer: Procedure— Process and entitling proceedings — Effect of appearance.</p> <p>Motions and orders — Order to show cause — When returnable — In eight days or more.</p> <p>An error in a copy of an order to show cause in contempt proceedings in respect to the time prescribed for its service or in omitting to state the acts constituting the alleged contempt is waived by the general appearance of the persons against whom the proceeding is taken. ' ’</p> <p>Such an order need not be made returnable in less than eight days.</p> <p>Where the judgment debtor persistently denies knowledge as to matters that are palpably within his knowledge and within the scope of a proper examination he is punishable for contempt on the ground tha* he has in effect refused to testify at all.</p>

<p>Contracts — Interpretation of contract — General' rules of interpretation— Interpretation of several instruments as forming one contract.</p> <p>Easements — Change of interest in estates —Right of purchaser of dominant estate.</p> <p>Equity — Laches and acquiescence — What constitutes.</p> <p>Former adjudication — Adjudication operative as bar or as conclusive evidence — Rule that former judgment must have been on the merits — Judgment of nonsuit.</p> <p>Reformation of instruments—Right to remedy — Who may obtain relief.</p> <p>The owner of a tract of land lying on the south side of the Erie Railroad Company’s tracks and between them and other lands of said company, the tenant of the south part of said tract, which had erected and was operating a furnace upon 'the lands it occupied and contemplating the erection of another furnace on another part of the tract, .and the Erie Railroad Company entered into an agreement by which the company was given a right of way across the entire tract from its line of railroad on the north to its other lands on the south and the company agreed in consideration thereof to give reduced rates for switching cars to other railroad lines for two furnaces on said tract by whomsoever operated. In order to carry out this arrangement there was added to the draft of the contract that had previously been prepared, by which the benefit of the switching rates was only given to the Buffalo Furnace Company, the tenant, an additional clause providing that “ if the said furnaces, or either of them, shall be operated by other parties than the Buffalo Furnace Company, said parties so operating shall have the benefit of the switching rates named herein during the term of this contract.” It was thereafter held that the legal effect of the contract was not to carry out the intention of the parties which they sought to express in the clause above quoted, whereupon the assignee of the owner of the tract of land'of the Buffalo Furnace Company and of another company operating both fur- ' naces then standing on the tract in question, brought this action to reform the contract, so that it might correctly express the intention of the parties. Held:</p> <p>The plaintiff, though not one of the parties to the contract, could maintain the suit as assignee of the Union Iron Company, the owner of the tract of land which granted to the railroad company the right of way that formed the sole consideration for the latter’s switching agreement, although such grant was contained in a separate instrument and the grantor was not a party to the instrument containing the switching agreement.</p> <p>The switching agreement was a covenant running with the land and the plaintiff as assignee of the owner and tenant of the land had the right to maintain an action for its enforcement or for its reformation.</p> <p>The prosecution of the former action at law upon the switching agreement by the Union Iron Works in which the plaintiff suffered a nonsuit was not an election of remedies which will prevent the plaintiff from prosecuting the present action to reform the contract, nor will the judgment therein operate to bar such right.</p> <p>Nor should relief .be denied the plaintiff on the ground of laches, as distinguished from the Statute of Limitations, which implies something more than mere lapse of time, since it does not appear that the defendant has been prejudiced by the delay.</p>

<p>Action for injunction to restrain defendant from holding himself out to he a member of plaintiff and using its registered trade-marlc.</p>

<p>Action by trustee in bankruptcy to set aside conveyance as a fraud upon creditors.</p>

<p>Highways — Abandonment and discontinuance — Proceedings to discontinue— Order — Necessity of finding highway uses; Order must be made by the action of commissioners present at hearing.</p> <p>Injunction — Who and what may be enjoined — Interference with property rights by persons — Interference with right of way.</p> <p>Officers — Privileges, powers and liabilities — Official boards — Manner of action — Necessity that all meet.</p> <p>Those living upon a highway that affords them access to other places may maintain an action to prevent the demolition of a section of the highway, though that portion threatened with destruction is not the part upon which their lands abut and the abutting owners at the point of demolition consent thereto.</p> <p>Where, in proceedings to close a road, there is no finding by the highway commissioners that the road has become useless, and the consent of the town board was voted at a meeting where a quorum was not present, signed by those who were there and afterward signed by another member of the board in another place to make up the requisite number of signatures, an order to close the road made as a result of sueh a proceeding is ineffectual.</p>

Action for an injunction restraining defendant from opening Thirteenth street and removing a dwelling-house owned by plaintiff.

<p>Action of interpleader.</p>

<p>Action to annul a marriage.</p>

<p>Marriage—Annulment of marriage — Grounds — Party within the age of consent.</p> <p>Where a marriage is entered into in a foreign State by a woman who under the laws where it was contracted had arrived at the age of consent, it will not be annulled at her suit because, under the laws of this State where she lived, she had not reached that age and the parties went into the foreign State to avoid the effect of the laws of New York.</p>

<p>Action to recover the proceeds of a check.</p>

<p>Conversion (equitable)— Reconversion — Election or intention to reconvert.</p> <p>Trusts — Termination and abrogation of trust — FuIfiVment of purpose.</p> <p>Wills — Interpretation and construction — Terms defining the nature and quality of estates or interests — Future interests and vesting possession and enjoyment — General rule as to vesting.</p> <p>Where a testator left his real and personal property to his executors in trust to sell and convert it into money and apply the income to the support of the testator’s children during their minorities and as each child came of age it was to receive its share, the right of the trustees to collect the rents and profits is limited to the minorities of the respective children;- and each child, on attaining his majority, becomes vested with his share of the real property which remains unsold, and as to such share the trust terminates; and where, after the youngest child becomes of age, the children elect to take the realty remaining unsold, a reconversion is effected and the power of sale in the executors is destroyed.</p>

<p>Replevin — Proceedings for taking and redelivery of property — Delivery of property to plaintiff.</p> <p>Where a constable replevies chattels and the defendant neither excepts to the sureties nor demands the return of the chattels but the constable retains possession of them until after the plaintiff defaults and a nonsuit is granted, the plaintiff’s right to receive the chattels is ended; and, if the constable then delivers the chattels to the plaintiff, he is liable to the penalty prescribed by section 2928 of the Code of Civil Procedure.</p>

<p>Joint agreements — On contracts — In general — Joint and several — Implied contracts.</p> <p>Limitation of actions: Period of limitation — Suits in equity — Constructive trust: Accrual of cause of action—Constructive trust.</p> <p>In an action against bankers, for moneys alleged to have been received by them from a trustee with knowledge or notice of the trust and wrongfully used for purposes of private speculation in stocks for the account of the trustee, but without actual fraud on the part of the bankers, the cause of action arose at the time when the defendants received the assets; and, in the absence of actual fraud, concealment or deception on the part of the defendants, the cause of action did not accrue until those entitled to maintain the action discovered the fraud.</p> <p>In such a case, the bankers by the receipt of said moneys become trustees ex maleficio and may avail themselves of the Statute of Limitations as a defense; and the rule that the statute does not begin to run until the trustee repudiates the trust does not apply.</p> <p>Semille, while it is well established that the right of a remainder-man under a testamentary trust to sue a trustee appointed by will or a person who has in contemplation of law wrongfully assumed the. duties of trustee accrues only when the remainderman becomes entitled to the property, it does not follow that the same rule applies when the action is predicated upon a hostile interference with the trust estate and the trustee would have had a right to bring the action earlier.</p> <p>The ten-year provision of the Statute of Limitations applies only to actions of which equity has exclusive jurisdiction; and, where the remedy in equity is merely concurrent with one at law, the statute limiting the time for the commencement of the action at law is also applicable to the equitable remedy.</p> <p>In such a case, where the original receipt of the moneys was wrongful and the fund was successively handled by several successive banking firms, all the members of the several firms need not be joined as defendants where plaintiffs waive the tort and sue upon the implied contract of defendants to hold tlie money wrongfully received by them for the benefit of the plaintiffs; but the plaintiffs may elect whom to sue and those who suffer from a recovery against them may seek contribution, if entitled thereto, from the others.</p>

<p>Contracts — Performance of contracts — Reference of question as to performance to third person — Approval by third person as condition precedent.</p> <p>Conversion (equitable)—Reconversion — Election or intention to reconvert.</p> <p>Wills — Interpretation and construction—Administration of estate and execution of powers and trusts and compensation therefor — Rules and implications — Imperativeness of power implied.</p> <p>Where a testator directed the residue of his estate to be kept undivided and undistributed until the death of his wife to whom he gave the entire income so long as she remained his widow, and upon her remarriage gave her half the income and the other half to his■ children, and on' her death gave the said residue to his children and their descendants, the issue of any deceased child to take the share which its parent would have taken, and authorized his executors to sell his real property and invest the proceeds in permanent securities, held, that the power of sale was not a naked power but could be exercised by the surviving executors, and that one of the testator’s grandchildren could not elect to take his share instead of the proceeds during the life of the life-tenant without the consent of the other contingent or conditional remaindermen.</p> <p>Where the parties to a contract for the sale of real property contract for a determination of the marketability of the title and the limitation of the purchaser’s damage, if unmarketable, to the return of his deposit and the reasonable expenses of examining the title, equity will not enforce a forfeiture unless and until within a reasonable time there -has been a determination of the question of marketability.</p>

<p>Waters and watercourses — Natural watercourses — Pollution of streams — By deposit of sewage and refuse matter.</p> <p>■The use of a pond whose waters form a part of a municipal water supply by a riparian owner for a duck pond is not a reasonable use thereof and should he enjoined at the suit of the municipality.</p>

<p>' Suspension of power of alienation — Validity of particular future estates — Bequests to institutions not in existence or unincorporated.</p> <p>The gift of a pecuniary legacy to any hospital legally incorporated at a certain place at the time of the testator’s death or within five years thereafter, with directions to the testator’s executors to retain the amount for five years after his decease, is, in the absence of any such hospital at the time of the death of She testator, void, as it attempts to suspend the absolute power of alienation for a period not measured by lives.</p>

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

<p>Actios for construction of will.</p>

<p>Obdbb to show cause why an execution issued by the defendant upon a judgment for costs should not be vacated.</p>

<p>Assignments — Constructive assignment — In general.</p> <p>Payment — Mode and sufficiency of payment—To whom made — Assignor or assignee.</p> <p>Process — Service — Service on corporations — Managing agent.</p> <p>The foreman of a local milk station or cheese factory belonging to a corporation, having charge of the station in the absence of any superior corporate authority and vested with managerial powers, sometimes receiving directions from the principal office and the corporate officers there, hut exercising discretion in the transaction of business, is a managing agent within the provisions of section 431 of the Code of Civil Procedure relating to the service of process.</p> <p>Where the owner of a stock farm leases it, with the cows, and the lease provides that the landlord is authorized to collect all cheese checks from the factory whenever due, from a certain day until he shall have collected a certain amount and, if the cheese checks are insufficient to pay the rent, that the landlord is authorized to collect the canning factory checks for the .remainder, such provisions bestow upon the landlord a power coupled with an interest, which is irrevocable, and amount to a virtual assignment of the moneys represented by the checks.</p> <p>Where, in such a case, the company that buys milk disregards the notice of the landlord containing information of his rights and turns over the checks to the tenant, the landlord may recover from the company the moneys represented by such checks.</p>

<p>Appeal by the defendant from a judgment of justice’s court, town of Wallkill, Orange county, David W. Shaw, justice of the peace, in favor of plaintiff for fifty-two dollars damages and costs.</p>

<p>Action for damages for maintaining a nuisance.</p>

<p>Proceeding for probate of will and codicil.</p>

<p>Motion to dismiss indictments.</p>

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

<p>Appeal from a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, fourth district, • in favor of the plaintiff, entered after a trial by the court without a jury.</p>

<p>Appeal from a judgment of the City Court of the city of Hew York, overruling plaintiff’s demurrer to the second separate defense and to the counterclaim contained in the defendant’s answer.</p>

<p>Appeals by defendants from judgments rendered in favor of the plaintiff, after a trial of the issues in the Municipal Court of the city of Hew York, borough of Manhattan, fourth district.</p>

Appeal by plaintiff from an order of the City Court of the city of Yew York vacating and setting aside an order for the examination of the defendant as an adverse party before trial.

<p>Appeal by defendants from a judgment in favor of plaintiff, rendered in the Municipal Court of the city of Hew York, borough of Manhattan, seventh district, after a trial before a judge sitting with a jury.</p>

Appeal by plaintiff from a judgment of the City Court of the city of Hew York in favor of the defendant, dismissing the complaint and directing a verdict for the defendant.

Appeal by defendant from a judgment in-favor of plaintiff, entered in the Municipal Court of the city of Hew York, borough of Manhattan, fifth district, after a trial by 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 tbe defendant A. Jeannette Stokes Wilkins from an order made in an action of interpleader, brought under section 820a of the Code of Civil Procedure in the City Court of the city of New York.

Appeal by the defendant from a judgment and order of the Municipal Court of the city of Hew York, borough of Manhattan, seventh district, overruling defendant’s demurrer to the complaint.

<p>Landlord and tenant — Rent and advances — Rights and liabilities— Disturbance of possession of tenant — Disorderly conduct of co-tenants.</p> <p>Where the tenants of. other apartments in an apartment house so conduct themselves that a tenant of one of the apartments, his wife and children are kept awake ■ until late at night, and loud arguments, lewd conversations and disorderly conduct are indulged in to such an extent that the peace and comfort of the tenant’s family are interrupted, and the landlord after complaint made to him attempts no redress, such acts and conduct are sufficient to constitute a constructive eviction; and, after the defendant has vacated the premises on account of them, the landlord cannot recover rent.</p>

<p>Landlord and tenant — Rent and advances — Rights and liabilities — Release from liability.</p> <p>Where a tenant of business property, after having declared his inability longer to pay rent, assigns his lease to another person upon the promise of the landlord to take the assignee as tenant in his place, the obtaining of the new tenant is a sufficient consideration to uphold the landlord’s promise; and the facts constitute a defense to the original tenant in an action against him by the landlord for rent.</p>

Appeal by the plaintiff from a judgment in favor of the defendant, rendered in the City Court of the city of Hew York, dismissing the plaintiff’s complaint.

<p>Master and servant — Master’s liability for injuries to servant — Contributory negligence of servant — Choice of alternative involving risk. '</p> <p>Where a pressman employed in a printing establishment, in order • to place tags on forms, raises two forms to a perpendicular and. leans them against his own body while he affixes the tag to a third form, but, the weight of the two forms being too great for him to sustain, they fall over upon him and injure him, he is guilty of contributory negligence and cannot recover against his employer.</p>

<p>Municipal Courts — Procedure—Judgments—By default—Evidence.</p> <p>The Municipal Court Act only permits judgment to be taken, without making proof of the plaintiff’s claim, where a verified complaint is personally served upon the defendant; and, where substituted service of the summons is made, judgment cannot be entered without such proof.</p>

<p>Municipal Courts — Jurisdiction—Municipal Court—Actions involving title to real property — Effect of showing by plaintiff.</p> <p>In an action to recover moneys agreed to be paid for permission to dredge a channel across the plaintiff’s land, where the agreement provides that the payment of the moneys is conditional on the right of plaintiff “ to grant or withhold the privilege of dredging the said channel as indicated,” the title of the plaintiff to the bed of the stream or to easements connected therewith is in question and the Municipal Court must dismiss the complaint under the provisions of section 184 of the Municipal Court Act of New York city.</p>

<p>Appeal by plaintiff from an order of the Municipal Court of the city of ¡New .York, borough of Manhattan, seventh district, vacating a judgment entered on confession.</p>

<p>Appeal by plaintiff from a judgment in favor of defendant rendered in the Municipal Court of the city of Hew York, borough of Manhattan, fifth district, after a trial by the court without a jury.</p>

<p>Execution of written instruments — Formal requisites — In general — Execution in blank.</p> <p>Although authority is to be presumed on the part of one to whom an incomplete promissory note is delivered to fill up blank places left in the instrument and which are necessary to complete it, yet no such authority is to be presumed to add at tlie end of the note the words, “ with interest.”</p>

<p>• Appeal by defendant from a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, fifth district, rendered against the defendant after a trial by a judge without a jury:</p>

Appeal by the plaintiff from a judgment dismissing the complaint, rendered in the Municipal Court of the city of Hew York, borough of Manhattan, second district, at the close of plaintiff’s case.

<p>Principal and agent — Rights and liabilities of principal as to third person — Unauthorized and tortious acts of agents (including apparent authority) — Course of dealing — A single transaction only.</p> <p>Authority is not to be inferred in the bookkeeper of a corporation to buy a typewriter for the corporation from the mere fact that upon a single previous occasion he purchased a typewriter for the corporation under express authority to make such purchase.</p>

<p>Sales — Delivery—Necessity and time for delivery — Delivery as condition precedent to payment.</p> <p>One who sells a concrete mixer weighing 2,500 pounds and securely fastened to the ground to another is bound as part of the contract of sale to deliver the mixer to the buyer; and, in case of the seller’s failure to make delivery, the buyer may recover the damages which he sustains by reason of the seller’s breach of contract.</p>

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

Appeal by the defendant from a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, fifth district, rendered in favor of the plaintiff and as modified by an order thereafter entered, and also from so much of said order as denies defendant’s motion to set aside the judgment rendered and for a new trial.

<p>Motioe to quash a writ of certiorari to review an assessment.</p>

<p>Constitutional law — Privileges and immunities of citizens and equal protection of laws — Discrimination against particular classes of persons.</p> <p>Municipal corporations — Powers and exercise of governmental functions — Control of streets and waters and improvements of streets — Power of city over streets.</p> <p>Chapter 681 of the Laws of 1910 adding section 612b to the Greater New York charter by which the commissioner of parks of the boroughs of Brooklyn and Queens is given discretionary authority to exclude bicycles and motor vehicles from the main driveway of Ocean boulevard, in the borough of Brooklyn, from Twenty-second avenue to King’s highway, is a valid exercise of legislative power.</p> <p>Where in pursuance of the power conferred by said section 61i2b an ordinance was passed by the park commission restricting the use and occupation of the main drive of Ocean boulevard, in the borough of Brooklyn, from Twenty-second avenue to King’s highway, to horses and light carriages, and excluding therefrom vehicles of all other kinds including bicycles and motor vehicles, one who while such ordinance is in full force and effect drives an automobile along said boulevard between the- prohibited points is liable to arrest under section 610 of the city charter which makes the violation of a park ordinance a misdemeanor.</p>

<p>Habeas Corpus to inquire into the cause of relator’s detention.</p>

<p>Contempt — Punishment — Imprisonment — Discharge.</p> <p>Habeas corpus — Grounds for relief and what will be reviewed—■ Custody under commitment for contempt.</p> <p>Where, after a hearing, an executrix was adjudged guilty of contempt of court for wilful disobedience of an order of the Surrogate’s Court directing her to pay over several thousand dollars belonging to the estate, found to be in her hands upon an accounting after the letters testamentary granted to her had been revoked; and where she was committed under section 774 of the Judiciary Law to the county jail, to be there detained until she should pay the money as directed by the order of the surrogate, her application to be discharged on habeas corpus, on the ground that six months had expired since her commitment, should be denied.</p> <p>An application for the discharge of relator upon the ground that she is unable to comply with the order requiring her to make payment of the money under section 775 of -the Judiciary Law is not properly before the court in proceedings for a writ of habeas corpus to test the legality of relator’s confinement,</p>

<p>Civil service—In general: Officers subject to the act — Confidential positions: Conclusiveness and finality of action of officers.</p> <p>A court stenographer, who in the discharge of his duties as specified by law is required to attend terms of court, make a stenographic record of all proceedings in court, preserve the minutes, supply copies to the court, the attorneys and the parties, and whose labors as an official cease upon the performance of such duties, does not •take the place of a confidential secretary or stenographer to a trial judge, even when he is holding trial terms away from the county in which he resides; and such court stenographer does not hold a “ confidential position ” within the meaning of the Civil Service Law.</p> <p>A writ of mandamus will not be granted requiring the State Civil Service Commission to reclassify the position of court stenographer, taking it from the competitive class and placing it in the exempt class, upon the ground that a competitive examination is. not practicable.</p>

<p>Application for an alternative writ of mandamus. •</p>

<p>Application for a writ of mandamus to compel the reinstatement of relator to the position of special agent in the Department of Excise.</p>

<p>Application for a writ of mandamus to compel the county clerk of Erie county to pay over certain moneys received by him as fees for the naturalization of citizens.</p>

<p>Civil service — Removals and reinstatement of veterans — Reinstatement.</p> <p>Where an honorably discharged veteran of the Civil War, occupying a. position classified as competitive in the civil service of a municipality, is so injured in the performance of his duties as to be disabled; and where after having been carried on the pay-roll for six months his salary is discontinued and, after having filed a claim for compensation for the injuries he has received, his name is restored to the pay-roll for a period of six months, upon his executing a formal release to the city from all causes of action by reason of such injuries, such release does not constitute a bar to his claim to be reinstated in his position after he has recovered from the effect of his injuries.</p> <p>In such a case the veteran’s right to reinstatement is not impaired by the fact that the resolution, placing him upon the payroll after his salary had been discontinued, was limited in terms to a period of six months.</p>

<p>Application for peremptory writ of mandamus commanding that the Superintendent of Public Works of the State of Mew York lower the lift bridge across the Erie canal at Knowlesville in the town of Ridgeway, Orleans county, 1ST. Y.; and to thereafter operate said bridge at the expense of the State of Hew York.</p>

<p>Stenographers — Fees and compensation — By whom fixed — Stenographers of Municipal Courts of New York city.</p> <p>Under the provisions of chapter 603 of the Laws of 1907, the board of estimate and apportionment of the city of New York has power to fix the salariés of stenographers of the Municipal Courts of the city of New York, and cannot be controlled by the recommendation of the board of justices.</p>

<p>Supplementary proceedings — Receivers — Appointment — Removal or discharge — Court or officer authorized.</p> <p>By the provisions of section 2471 of the Code of Civil Procedure a receiver in supplementary proceedings is subject to the direction and control of the court out of which the execution issued; and, although a justice of the City Court of the city of New York may entertain proceedings supplementary to execution based upon a judgment recovered in the Municipal Court, a transcript of which has been filed in the office of the clerk of the county of New York, after the appointment of a receiver -the City Court has no jurisdiction of añ application for his discharge.</p>

<p>Corporations — Incorporation and organization: Creation in general — Powers permissible: Certificate of incorporation—Amendment of certificate — Objections.</p> <p>It is not a valid objection to the formation of a membership corporation, composed of merchants, to prevent and expose the commission of frauds of debtors with whom its members are trading or may do business, that the association is seeking to obtain power to practice law.</p> <p>A membership corporation may amend its certificate of incorporation, where the amendment does not contemplate any radical change but only corrections of informalities or defects, without notice to the Attorney-General; but when formal application is made to the court upon notice to the Attorney-General and to such other persons as the court" may direct, then, upon due cause shown and on such terms and conditions as may be deemed just, the certificate may be amended in respect of its objects and purposes.</p>

<p>Appeal from a decision" of the superintendent of the poor of Onondaga county.</p>

<p>Motioh for a preliminary injunction.</p>

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

<p>Motion to strike out certain allegations as immaterial. Facts appear in opinion.</p>

<p>Motion for a new trial on the ground of newly discovered evidence.</p>

Motion by defendant judgment debtor to set aside an order directing his employer to pay to the sheriff one-twelfth of his earnings pursuant to section 1391 of the Code of Civil Procedure.

<p>Execution against property — Property subject to execution — Salaries and wages.</p> <p>Officers — In general — Who are public officers.</p> <p>The compensation of a condemnation commissioner in the city of New York, appointed by a justice of the Supreme Court, which is not paid at stated times nor in stated amounts but is allowed in bulk by a justice of the Supreme Court, is not wages, salary or earnings within the meaning of section 1391 of the Code of Civil Procedure.</p> <p>Semhle, a condemnation commissioner, appointed by a justice of the Supreme Court and required to take an oath of office, is a public officer.</p>

Motion to confirm report of referee, appointed by an order of the Special Term of this court to take proof with reference to the matters set forth in the petition as to the rights and priorities as to the parties claiming an interest in said fund.

<p>Contracts: Validity of contracts — Contracts involving violation of statute: Place of performance — Place not specified.</p> <p>A contract made in this State, between an opera singer and a manager, by which the singer agrees to perform certain services for a certain compensation, and which contains a provision that “ in the number of performances to be given each week Sunday performances shall also he included in the week without extra compensation,” and which further provides that non-playing Sunday® shall not be figured as lost time, is void and unenforceable.</p> <p>And the court will not, in its endeavor to sustain the legality of the contract, presume that the parties intended that Sunday performances were to he had only within such States as permitted them, where the statutes of other States are not proved and where it is to 'be presumed that the contract is to be performed within this State by reason of its silence as to the place of performance.-</p>

Action upon surety bond conditioned for the faithful performance of the duties of the supervisor of the town of Whitestown.

<p>Demubbeb to complaint.- .</p>

<p>Action for partition.</p>

<p>Action to restrain defendants from maintaining a sluice or waterway under a highway and for damages.</p>

Action to recover sick benefits from March 15, 1909, to November 10, 1910. The ease was tried at the above term, the court reserving the decision of the defendant’s motion for a nonsuit until the coming in of the verdict of the jury. The jury reported in favor of the plaintiff for $271.

<p>Action to foreclose mortgage.</p>

Action to recover premiums claimed to have been paid by the plaintiff’s testatrix to the defendant upon a policy of insurance, issued by the defendant upon the life of one Horace M. Ellis. Jury waived and case tried before court.

<p>Action to recover rent.</p>

<p>Motion for a new trial on the minutes of the court.</p>

<p>Action to foreclose liens on a public improvement filed pursuant to section 5 of the Lien Law.</p>

<p>Action for negligence.</p>

<p>Motion for a certificate of reasonable doubt.</p>

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

<p>Adoption of children — Mode and sufficiency of adoption — Desertion by parent.</p> <p>Parent and child — Custody and control of child —Right of parent as against third person.</p> <p>Under the laws relating to the adoption of children the abandonment of a child by a parent is a question of fact to be determined upon competent evidence and upon notice to the parent.</p> <p>The mother of a child nullius fll-lus is not necessarily an unfit person to have its care and custody.</p> <p>In the absence of notice to the mother of adoption proceedings, the question of her abandonment of the child may be raised on her motion to vacate an order of adoption.</p>

<p>Writ of certiorari granted to review an assessment against real property in the village of Phoenix.</p>