Volume 73 — New York Miscellaneous Reports

<p>Hearing on return of a writ of habeas corpus.</p>

<p>Betubn of a writ of habeas corpus.</p>

<p>Application for a mandamus to compel the defendant • corporation to reinstate the relator as one of its members.</p>

<p>Divorce — Trial: Trial of issues of fact by jury: Decision after verdict. Where, in an action for divorce, the answer puts in issue the adultery of defendant alleged in the complaint, the finding of the jury upon that issue is conclusive; but, as to other issues, the verdict is merely advisory to the trial court, which may either adopt, modify, or disregard it and make its own findings.</p> <p>Where, in a husband’s action for divorce, the defendant after a denial of the adultery alleged in the complaint sets up as a further defense that such adultery, if committed, was with the connivance and procurement of her husband and that she was of unsound mind at that time, the finding of the jury that defendant was guilty of adultery as charged is conclusive.</p> <p>Further findings that defendant was sane at the time of the commission of the alleged adultery and that it was committed without the connivance or procurement of the plaintiff are not conclusive; but such issues must be tried at the Special Term and, pending the trial thereof, temporary alimony must be paid to the wife.</p>

<p>Motion by the defendant for a discovery and inspection of the plaintiff’s books.</p>

<p>Motion to settle the issues in this action for trial hy a jmy.</p>

<p>Parties — Substitution — On change of personal representatives.</p> <p>In an action against the sureties on a sheriff’s bond, the administrator with the will annexed of one of them will be substituted as a party defendant in the place and stead of his executor who, pending the action, has ceased to be the representative of the estate.</p>

<p>Motion to confirm the report of a referee in a surplus money proceeding.</p>

Motion to confirm the report of a referee stating the account of a receiver of a partnership, filed by the official surety upon the receiver’s bond, under section 812 of the Code of Civil Procedure.

<p>Action in replevin.</p>

<p>Judgment — Collateral attack — Grounds in general — Granted on motion of one not admitted to practice as attorney.</p> <p>Pleading — Evidence admissible under the pleadings — In general — What must be pleaded—Particular grounds for attacking judgment collaterally.</p> <p>A judgment in the Municipal Court of the city of New York, rendered on the motion of one as attorney for the plaintiff who was not admitted to practice in the courts, is void and may be attacked collaterally; but in- an action for false imprisonment under process issued, on such a judgment, where plaintiff alleges the invalidity of the judgment on other specific grounds only, proof of its invalidity on such ground is inadmissible.</p>

<p>• Motion upon the return of a special verdict on behalf of the plaintiffs, for direction of judgment for the amount of damages found by the jury, and by the defendant for a new trial.</p>

<p>Motion by defendant to set aside verdict for. $2,055 directed by the court. .</p>

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

<p>Highways — Creation, requisites and incidents: Power to establish by dedication — Way less than four rods wide; Necessity of acceptance: What constitutes acceptance by town: Establishment by prescription and user.</p> <p>A strip of land eleven feet wide cannot become a highway by dedication.</p> <p>Nor will such a strip of land become a highway by user by mere travel over it without action by the public authorities in repairing or maintaining it.</p>

<p>Action for the admeasurement of dower.</p>

Action to recover damages for the obstruction of a lane or alleyway by a building of the defendant, and to compel the defendant to remove the building. At the close of the evidence defendant moved for a non-suit and the plaintiff for a direction of a verdict, and the court took the case by consent of counsel for consideration.

<p>Foreclosure of mortgages on land — Foreclosure by action and sale — Parties — Necessary parties — Committee of incompetent mortgagor,</p> <p>Insane persons — Actions: Leave to sue lunatic — Necessity: Parties — Defendant.</p> <p>Limitation of actions — Actions on contract — Simple contracts — Unsealed mortgage.</p> <p>Mortgages — Validity: Necessity of seal: Necessity of interest clause.</p> <p>• A seal is no longer required to give validity to a mortgage of lands, where the instrument expresses a consideration.</p> <p>Nor is it essential to the validity of a mortgage that it shall contain a covenant to pay the moneys it is intended to secure, or a provision that it shall become void upon payment of such moneys, or an interest clause.</p> <p>In an action to foreclose a mortgage, the committee of the incompetent defendant who executed the mortgage is not a necessary party; nor is it necessary in such a case to allege and prove that the court has granted leave to maintain the action against the committee.</p> <p>Where six years have not elapsed since the principal sum secured by a mortgage became due, the Statute of Limitations has not run against it, but the installments of interest -that were payable more than six years before the action was commenced are barred.</p>

<p>Adverse possession: Nature and requisites of possession — By owner of surface as against owner of minerals beneath surface: Effect and extent of possessions</p> <p>Easements — Nature and creation — Creation by • implication — Necessity.</p> <p>Where one person owns the surface of the ground and another owns minerals beneath the surface, the rules prescribed by the Code of Civil Procedure, which relate to adverse possession of the surface, are not applicable to the question of possession by the owner of the surface adverse to the rights of the owner of the minerals.</p> <p>The opening of a quarry 'upon one part of lands so owned by the surface owner, with or without a written claim of title, does not constitute adverse possession as against the owner of the minerals upon another part of the lands; and deeds of mineral rights by the latter in other parts of the land while such quarry is in operation are not champertous.</p> <p>The owner of minerals in lands owned by another has the right to' enter upon the land and to interfere with the surface so far a? if is essential to enable him to reach and appropriate the minerals, but the act of another than the owner in removing superficial strata of rock and piling them on the land and mining the minerals below is a trespass upon the owner of the surface for which he is entitled to recover damages.</p>

Tbial before the court sitting without a jury of an action brought to obtain an injunction against the defendants from engaging in acts of allegédly unfair competition and for compensation.

<p>Deeds — Lands, tenements and hereditaments granted — Deed with reference to map — Effect as creating easement.</p> <p>Easements — Nature and creation — Dedication and acceptance.</p> <p>D, the purchaser at a foreclosure sale of mortgaged premises, caused a map showing a portion of the' premises as a park to be filed in the county clerk’s office and induced the holder of an outstanding contract for the purchase of a portion of the premises embraced in the designation of a park on said map to surrender his contract and to accept lots in another portion of the premises upon the representation that he intended to create a park where those premises were. D then laid out streets surrounding the park which were accepted by the village and used as such by the public and placed one row of trees along the outer edge of the sidewalk and another row some distance inside of the sidewalk surrounding the park. He then built an ornamental post fence leav-ing an opening in each corner where he placed a turnstile. In this condition of the premises he sold lots by reference to the map and granted deeds of conveyance referring to'the map. Held: (1) As to grantees in deeds of the lots or their successors in title, there was a dedication for park purposes and they were entitled to maintain an action to restrain any interference with or molestation of their use of the park by defendant who, succeeding to D’s interest therein, claimed to be the owner in fee of the park free from any rights or easements therein in plaintiffs. (2) The laying out and mapping of the property by defendant’s predecessor in title constituted a dedication, and the Use made of it by the public from that time on indicated an acceptaneé.</p>

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

<p>Highways — Obstructions, encroachments and unauthorized use of highways — Obstructing highway by abolishing railroad grade crossing — Powers of Public Service Commission. ■</p> <p>Nuisance — Nature of public and private nuisances and liability therefor — Authority of law — Obstructing highway by abolishing railroad grade crossing.</p> <p>Railroads and railroad companies — Construction, equipment and maintenance— Crossing streets and highways: Right to obstruct highway by abolishing grade crossing: Restoring and maintaining highway.</p> <p>The Public Service Commission, under section 91 of the Railroad Law, has power to make an order directing a railroad company to close a highway or divert travel to another highway in order to eliminate a railroad crossing, by removing a bridge in-a street and building an embankment across the street; and the work done by the railroad company in obedience to such an order cannot be regarded either as an unlawful obstruction of the street or an actionable nuisance.</p> <p>The effect of such an order is to relieve the railroad company from liability to an adjoining landowner for any damages on account of the closing of the street or the removal of the bridge.</p> <p>The remedy of the adjoining landowner is by an appearance and protest at the duly noticed public .hearing before the Public Service Commission, and thereafter by an appeal from its decision to the Appellate Division of the Supreme Court.</p> <p>The provision of section 21 of the Railroad Law, requiring railroads to restore streets to their former state, has no application to such a case.</p>

Action by judgment creditors of the defendant John F. Baudoine to have the surplus trust income of the judgment debtor applied toward the satisfaction of their demand. Demurrer to the complaint for insufficiency in substance.

<p>Municipal- corporations: Powers and exercise of governmental functions— Powers of different departments and boards — Department of bridges: Liabilities of municipalities not based on contract — What are wrongful acts or omissions for which municipality is liable — Liability for acts not within power of city.</p> <p>An act doiie by a municipal corporation outside of the authority and power of the corporation conferred by statute is ultra vires and cannot be made the basis of an action- for damages whether its officers directed the performance of such act or it was done without express direction or command.</p> <p>There is no statute giving power to the officers of the city' of New York to operate a railroad upon the Queensboro bridge which spans the East river.</p> <p>The commissioner of bridges of the city of New York, pursuant to authority attempted to be conferred by the board of estimate and apportionment, constructed and operated an electric railroad upon the Queensboro bridge and the public were invited to accept transportation thereon and the fares received were paid into the city treasury. In an action against the city and the railroad company to recover for personal injuries the evidence was sufficient-to warrant the jury in finding that plaintiff while a passenger upon defendant’s railroad was injured through the negligence of an employee of the department of bridges operating one of the cars on said railroad. Held, that the verdict in plaintiff’s favor should stand as against the defendant railroad company and be set aside as against the city on the ground that it was contrary to law.</p>

<p>Demurrer to complaint in action for, partition.</p>

<p>Action for negligence.</p>

<p>Guardians ad litem and special guardians — Persons who may he appointed— Persons with adverse interests.</p> <p>Infants — Property and conveyances — Sale, mortgage or lease under order of court: Grounds: Proceedings — Special guardians.</p> <p>Where, in proceedings for the sale of real property of infants, the petition alleges and the allegations are supported by proof that the infants own certain real property that is productive and certain other real property that is unproductive and that all of it is charged with debts and funeral expenses of their ancestor and other incumbrances and. that they have no other property or estate and that the sale of the unproductive real property and the payment of the incumbrances and the consequent relief from taxation and interest will increase the annual net income of the infants and is necessary for their support,' education and maintenance, a sale of the unproductive real property is authorized.</p> <p>In such a case, the appointment of the mother of the infants as their special guardian, although she is a creditor of her husband’s estate, though it may call for the exercise of uncommon care on the. part of the court in supervising the proceedings does not raise a jurisdictional question.</p> <p>It having been made to appear before the referee that there were no debts or demands against the infants’ estate, the petition was not defective for failing to set forth such debts or demands, if any, as required by section 2350 of the Code of Civil Procedure, especially as the debts of the intestate were fully set forth.</p> <p>The order directing the completion of the contract and the acceptance of the deed from the special guardian and that the proceeds of the sale should be brought into court to await its further order, it was neither the right nor duty of the purchaser to inquire concerning that distribution, nor could he sucessfully refuse to accept the deed tendered him on the sale.</p>

<p>Consideration: Necessity of consideration and of mutuality of obligation— Mutuality of obligation: .What constitutes consideration in general — Benefits and injuries in general.</p> <p>Contracts — Validity of contracts—Public policy in general.</p> <p>Where plaintiff, a trustee in bankruptcy who asked $95,000 for the bankrupt’s factory plant located in a certain city, was offered $92,500 for it, the promise of the defendant, an incorporated chamber of commerce of said city and duly authorized to act, to pay plaintiff the difference if a sale of the plant was made to a certain person who agreed to locate in said city was supported by a sufficient consideration, as the sale was in part for the benefit of the defendant and said city, in whose interest • defendant was acting.</p> <p>By the making of a written contract between the plaintiff and the purchaser before the defendant’s promise was withdrawn and in reliance upon the good faith thereof and reckoning it as a part of the -consideration, there was a mutuality of contract between the parties to the transaction, and the obligation of the defendant to make good its promise became absolute.</p> <p>The fact that the one who acted as agent for the defendant was the referee in bankruptcy before whom the bankruptcy proceeding was pending did not render defendant’s promise void as against . public policy.</p>

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

<p>Taxes: Assessment — Formal requisites of assessment — In general — Time for. making assessment; Nonresident lands — Estoppel to object to assessment as nonresident: Equalization, correction and review of assessments — Correction and review — Certiorari; Conditions precedent — Presentation of grievance to assessors — When not necessary — Time for presenting statement; Review — Evidence in general — Sufficiency of evidence.</p> <p>The provision of section 36 of the Tax Law (L. 1900, ch. 62), that the town board of assessors shall complete the assessment roll on or before the first day of August, is mandatory and after said date no property can legally be added to the assessment roll; and the fact that a taxpayer appeared on grievance day and apparently knew that his property was to be added is immaterial.</p> <p>Where property was added to the assessment roll after the first day of August, no application to the assessors to correct the assessment, as required by section 290 of the Tax Law, is necessary as a prerequisite to a writ of certiorari to review the assessment.</p> <p>Where relator’s attorney on grievance day orally protested as to an assessment of its property entered on the assessment roll prior to the first day of August, and later in the day returned with a verified statement which was delivered to and retained by the clerk of the board of assessors, it having at that time adjourned, and the attorney is not positive that on the .delivery of said statement to the clerk the hoard of assessors was in session, or was transacting any business indicating that it was, and he is not certain that the members of the board were in the dlerk’s office or outside, or whether all were present, there is no valid service of a notice or statement, as required by section 37 of the Tax Law.</p> <p>Where it appears that some of relator’s property was overvalued and,some undervalued, and the evidence is not of sufficient probative force to enable the court to determine how much of the property is overvalued so as to enable it to make proper reductions, and the court is not satisfied from the evidence that the relator will be required to pay more than its fair share of the taxes levied, the court is not required to interfere with the assessment.</p> <p>In the absence of the filing of the statement required by section 37 of the Tax Law, an objection by relator to the assessment on the ground that its property should have been assessed as resident property is not available, and it is bound by its statement that its principal office is outside the town as made in the paper claimed to have been filed with the clerk.</p>

<p>Motion to confirm amended report of the commissioners of appraisal.</p>

<p>Motion to confirm sixth separate report of commissioners of appraisal.</p>

<p>Motion to discharge a mechanic’s lien.</p>

<p>Civil service: Preference of veterans and firemen — Construction and operation of statute — Firemen — Service contemplated as affording protection from removal: Removal and reinstatement of veterans — Duty to notify appointing power: Civil and criminal proceedings — Remedies — Mandamus — Parties.</p> <p>Mandamus — Procedure and relief (Code Civ. Pro., §§ 2067-2085); Parties; Papers in opposition — On information and belief.</p> <p>Averments of lack of knowledge or information sufficient to form a belief as to the allegations contained in a petition for a writ of peremptory mandamus are not sufficient to raise an issue as to the matters to which such allegations relate.</p> <p>The provisions of the Civil Service Law for the protection of those who shall have served the time required by law in the volunteer fire department of any city, town or village in the State are to be taken as intending service for five consecutive years.</p> <p>Such provisions are not intended to protect an engineer of a steam fire engine employed by the board of trustees of a village, where the employment or position is not a public office, nor a position created by statute, but is created by the board, and the term of the employment is during the pleasure of the board, and the employee has annually presented to the board a written request for reappointment.</p> <p>It is the duty of one holding an office or public position in which he is protected from removal by having served as a fireman for the term required by law, when he learns of the intention of the appointing power to remove him or appoint another in his place, to inform the appointing power of the facts which protect him from removal.</p> <p>In a proceeding by mandamus under the Civil Service Law to compel the reinstatement of an officer or employee protected by law and illegally removed, the person appointed in the place of the relator is a necessary party to the proceeding.</p>

<p>Evidence — Presumptions — Performance of official duty.</p> <p>Poor: Settlement and removal of paupers; Settlement in general — Application of statute; Settlement of children; Liability of county or town of settlement for support of removed pauper: Poor officers and poor districts — Determination of right to relief.</p> <p>The provisions of the Poor Law relating to gaining a settlement in a. city or; town are not limited in their application to poor persons.</p> <p>Minors who reside with their father for more than a year in the same town, in a county in which the several towns support their own poor, gain a settlement in that town; and where, after removing to a new town in the same county and before gaining a settlement there, they require and receive relief as poor persons, the expense of their relief is chargeable to the town from which they removed.</p> <p>The question of the propriety of giving relief is confined to the discretion of' the poor authorities and, if they grant relief, it is presumed they have made such investigation as they deemed necessary and have determined the right of the party examined to such relief.</p>

<p>Summaby proceedings.</p>

<p>Motion to punish defendants for contempt for failure to obey writ of mandamus.</p>

<p>Motion.by defendant to compel plaintiff to accept answer.</p>

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

<p>Boundaries: Location of calls — Waters as boundaries — Tide waters; Boundary by beach, bank or shore or cliff: Establishment by act of parties — Express agreement — Validity of parol agreement — Between- adjoining owners.</p> <p>A grant of meadow land on the seashore carries title to the water and gives access thereto, though a beach formed by the, sand thrown up by the waves separates the meadow from the sea; and a later grant to the town in which the lands lie, which might by its terms include the beach in front of the meadow, will not be so construed, where it expressly excludes “ the particular propriety of any person or persons who have right by patent or other lawful claim to any part or parcel of land or tenements within the limits aforesaid.”</p> <p>And where, in the course of the devolution of the title to the meadow, boundaries are given as ranging from a stake on the edge of the upland to the beach, and from the edge of the upland to a bush on the beach, such boundaries must be construed as running to high water mark on the beach, the objects mentioned not being designated as the termini of the lines, but only as objects through which the -lines run.</p> <p>Evidence of the use of the beach by inhabitants of the town for the purpose of gathering gravel, seaweed and drift wood, without evidence that it was done under any claim of title in the town, or by reason of any license from the town, or that the town knew of it, and' it appearing that the persons exercising the privilege did not discriminate between the beach now claimed by the town and other beaches concededly owned by private persons, is insufficient to authorize an inference that the town claimed ownership of the beach.</p>

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

<p>Landlord and tenant — Rights, duties and liabilities in regard to premises — Repairs, insurance and improvements — Improvements by tenant — Right of tenant to remove fixtures during term — Effect of taking new lease without reservation; Effect of abandonment of premises by tenant.</p> <p>Where a tenant, who has erected a building on the demised premises and has the right to remove it, thereafter takes a long lease at an increased rental, without reserving the right to remove the building, he thereby loses such right and cannot thereafter remove it.</p> <p>And where the tenant abandons possession and notifies the .landlord he does not care to occupy longer and she rents the premises to another, the tenant cannot thereafter remove the building.</p>

<p>Consideration — Particular instances of consideration — Forbearance as consideration.</p> <p>Where an award is made and paid to persons appearing to be mortgagees of lands taken under the right of eminent domain to abolish a grade crossing, through an error of a title insurance company in setting out their mortgage in an abstract of the title of the owners of such lands as a lien thereon, an agreement on the part of the company to pay the amount to the owner, in consideration of the latter’s refraining from suing it and also allowing it to carry on a proceeding looking to the repayment of the award, is valid; and the consideration expressed is sufficient to support the agreement to pay the amount to the owner, although the title company was not originally liable to the owners for the error, for the reason it did not furnish the search to them.</p>

<p>Arpeal from a judgment of the Municipal Court of the City of Syracuse in favor of the plaintiff, rendered after a trial before one of the judges of said court without a jury.</p>

<p>Action to recover moneys deposited in the defendant savings bank by John Henry Thomas in trust for plaintiff.</p>

<p>Constitutional law — Privileges and immunities of citizens and equal protection of the laws — Discrimination against particular classes of persons.</p> <p>Disorderly conduct — What constitutes offense.</p> <p>Where a man without sufficient previous acquaintance sends letters to a woman declaring love and proposing and importunately insisting upon, marriage and persisting therein in spite of requests to desist and failure to receive replies to his communications, a magistrate is justified in finding him guilty of a violation of section 1459 of the Consolidation Act of the city of New York.</p> <p>The provisions of section 1458 of the Consolidation Act are not applicable to such a case since they apply only to acts committed in a thoroughfare or public place and which are threatening, abusive or insulting.</p> <p>The word “ behavior ” as used in said section 1458 means demeanor or deportment and refers to action in the presence of others.</p> <p>In such a ease the reception of evidence over the defendant’s objection and exception that the defendant is of the negro race and the taking of that fact into consideration by the magistrate who convicts him violate no constitutional right of the defendant and do not deprive him of the equal protection of the laws nor discriminate against him on account of race or color.</p>

Motion by temporary receiver for leave to issue-certificates to enable him to continue the business of the corporation pending proceedings for its- voluntary dissolution.

<p>Election of officers: Nominations and preparation of official ballot — Primary — Notice; Committees: Review by court — Decision — Promoting justice.</p> <p>Under the rules of the Democratic General Committee of the county of Albany, the chairman of the executive committee has no power to appoint as chairman of the town committee in one of the towns of said county one who is not a member of the town committee of such town, upon the failure of the regularly appointed chairman of such town committee to post notices of a primary election within the time provided by law.</p> <p>A notice of a primary election, given after the prescribed time by the chairman thus irregularly appointed, is ineffective for any purpose; and "a justice of the Supreme Court whose summary powers under the Election Law are invoked will, in the interests of justice, approve the act of the majority of the town committee in repudiating such notice and themselves giving notice of a primary election.</p>

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

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

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

<p>Civil service: Preference of veterans and firemen — Promotions: Civil and criminal proceedings — Remedies—Mandamus — Parties.</p> <p>Mandamus — Procedure and relief (Code Civ. Pro., §§ 2627-2825) —■ Parties.</p> <p>Where one is appointed by municipal authority to the position of assistant engineer, although by subsequent classification the municipal engineer service is classified into several grades and a salary equal to that paid such appointee is affixed to lower grades of such engineer service than assistant engineer-, he still remains an assistant engineer, and advancement of his salary to that of assistant engineer under the new classification is not a promotion.</p> <p>Where the municipal civil service commission refuse to certify the pay-roll providing for the payment of the advanced salary to such employee, and he applies for a mandamus to compel such certification, no claim being made that the existing rules of the local civil service commission are not proper and binding upon those affected, by them, and the records of said commission disclose facts sh'owing the validity of relator’s right to his position of assistant engineer, his motion to compel certification of his pay-roll is not a collateral attack on the civil service rules; and, therefore, neither the mayor nor the State Civil Service Commission is a necessary party to the motion.</p>

<p>Eminent domain — Condemnation proceedings — Confirmation of report — Presumptions — Grounds of commissioners’ decision — Evidence not appearing — View.</p> <p>Highways — Creation, requisities and incidents: How established in general: Necessity of acceptance; What constitutes acceptance by town.</p> <p>Landlord and tenant — Eights, duties and liabilities in regard to premises— Repairs, insurance and improvements — Improvements by • tenant — Right of tenant to remove fixtures during term.</p> <p>Local improvements:. Method of meeting expenses and power to make. assessment—Power to make assessments: Assessment districts and persons and property assessable — Fixing assessment district; Property assessable — Exemption of cemetery association: Report, hearing of objections thereto,' confirmation thereof and new assessments— Power to refuse confirmation.</p> <p>Values—■ Evidence of value of life estate or lease or use and occupation— Value of lease — Right to remove building.</p> <p>Assessments for local improvements, although deriving their authority from the taxing power, rest upon the basis of benefits as a constitutional necessity and must be proportioned to benefits as far as practicable.</p> <p>The decision of .the Appellate Division of the first department in . Matter of Mayor, 118 App. Div. 874, is conclusive upon the Kings County Special Term of the Supreme Court as to the proposition that the exemption of cemeteries from assessment for public improvements does not violate the 14th amendment of the Federal Constitution.</p> <p>Where, under a statute providing for a public improvement, the act of commissioners is not effective until confirmed by the court, the court has power to withhold confirmation if the acts of the commissioners appear plainly violative of legal rights or inherent principles of justice; but so long as the extent of the area of benefit is open to debate or question the determination of the commissioners is conclusive, though if it plainly appeared there was included in the area property which could not by any possibility be benefited it would be within the power and duty of the court to refuse confirmation.</p> <p>Under section 980 of the Greater New York charter, which authorizes the board of estimate and apportionment to determine how much, if any, of the cost of the improvement shall be borne by the city, and directing that the rest be assessed on the property benefited thereby, the board is necessarily vested with the power to determine that local benefits equal the cost and such determination cannot ■ be overruled by the commissioners of estimate and assessment.</p> <p>The value of a leasehold is the excess of the rental value over the rent reserved for the unexpired term of the lease, to which may be added the value of any fixture which the tenant has the right to remove.</p> <p>A tenant having the right to remove buildings or fixtures strictly speaking does not own them, but has only the right to remove them which is lost by failure to remove them before the expiration of the lease and extinguished by a renewal of the lease without reserving the right of removal.</p> <p>To constitute a highway there must be not only a dedication but there must also be an acceptance by the public, accomplished either ,by an official act by the authorities competent to' accept the highway, or by common or public user; and such an acceptance is not established by a sale of lots by reference to a map on which streets are laid down; nor by the enjoyment by the purchaser's of such lots of the private easements thereby created; nor by mere public travel, without action by the authorities in repairing and maintaining or using the street; nor by the patrolling- thereof by police officers.</p> <p>In reviewing the decision of commissioners of estimate and assessment the case may not be treated by the court as if the evidence were all before it, for the view is direct evidence of value which cannot be certified to the court by the commissioners, and the commissioners are not bound to accept expert testimony as to values.</p>

<p>Motion by judgment debtor to vacate a third party order in supplementary proceedings.</p>

<p>Action to recover on a written order for the payment of money accepted by defendant.</p>

<p>Motions and orders: Motion papers — Notice of motion — Sufficiency in general — Notice in alternative: Orders — Relief which will or may be granted.</p> <p>The provision of section 768 of the Code of Civil Procedure permitting a notice of motion to demand one or more kinds of relief in the alternative or otherwise refers to a situation where upon the same state of facts two different kinds of relief may be appropriate and not to motions based upon entirely different papers and upon matters wholly disconnected such as granting judgment on the pleadings and vacating an order for the examination of the officers of the corporate defendant before trial.</p> <p>But where alternative relief is demanded the court has inherent power to separate the relief prayed for and to grant such relief as the defendant may be entitled to.</p>

<p>Banking — Control and regulation of banking business — Examination of officers by Superintendent of Banks— Subpoenas and oaths of witnesses.</p> <p>Constitutional law — Deprivation of life, liberty or property without • due process of law — Regulations of business and trades. Witnesses—Attendance and privileges of witnesses and production of documents — Warrant to compel attendance.</p> <p>In the exercise of the power vested in the Superintendent of Banks, by section 8 of the Banking Law to investigate the affairs of a bank, he or an examiner under him may put its officers and employees under oath to the end that information thus obtained shall have the sanction of sworn testimony; and the provisions of said section apply to a bank temporarily closed by said Super- . intendent for his official inspection.</p> <p>Under section 854 of the Code of Civil Procedure the Superin- . tendent of Banks upon an official investigation of the affairs of a bank may issue a subpoena to compel the appearance, , as a witness, of the president who was ousted by the temporary closing of the bank.</p> <p>The provision of section 855 of the Code of Civil Procedure, which provides that where a witness, subpoenaed under section 854 of said Cede to appear before an officer, person or body which is not a court, defaults, any judge may issue a warrant to the sheriff to compel the attendance of said witness, is constitutional.</p> <p>Where the former president of the bank subpoenaed under sec- • tion 854 of the Code of Civil Procedure as a witness on an examination conducted by said Superintendent defaults, a warrant may properly issue under section 855 to compel his attendance.</p>

<p>Action to recover a penalty for a violation of section 38 of the Agricultural Law.</p>

<p>'Appeal from a judgment in favor of the plaintiff, rendered in the justice’s court of the town of Hempstead, county of Nassau.</p>

<p>Claims to real property — When action lies — Title necessary..</p> <p>Wills — Interpretation and construction — Nature and quality of •' estates — Powers — Trust or power in trust.</p> <p>Where by the will of a testatrix her executors are directed to convert her estate into money and pay her debts and funeral expenses, and the remainder of the proceeds and avails is given to the testatrix’s children, and authority is also given to the executors to sell and convey the testatrix’s real property to carry into effect her Will, no trust is created in the executors and they are not the owners of the fee of the testatrix’s real property within section 1638 of the Code of Civil Procedure so as to enable them to maintain an action to determine a claim thereto.</p>

<p>Action for rent. Case tried without a jury.</p>

<p>Mechanics’ liens: Notice of lien—r Sufficiency 'in general — Value and price of labor and materials: Foreclosure — Pleading—. Description of premises — Omission of street number.</p> <p>In an action to foreclose a meehanie’s lien, where a discrepancy appears between the notice of lien and the complaint in the description of the property affected by the lien, one describing it .as situated in subdivision B and another in subdivision D of a given tract, since it cannot he told which of the two is wrong until after the'introduction of proof at the trial, a demurrer to the complaint for such error cannot he sustained.</p> <p>Where a notice of lien states facts from which, by mathematical calculation, it can he ascertained what is the value and agreed price of labor completed and materials furnished and the amount unpaid, the notice sufficiently complies with the requirements .of the Lien Law.</p> <p>A demurrer cannot he sustained for the omission of the street number of the property intended to he affected by a notice of lien where it does not appear from the complaint that the property has a street number.</p>

<p>Action to* recover for services.</p>

<p>Adverse possession — Necessity of hostility of claim — Tenants in common.</p> <p>Aliens — Disabilities — In respect to real property — Transmission through alien.</p> <p>Cause of ■ action — Volenti non fit injuria. ■</p> <p>Descent and distribution — Quantity ■ of estate or share acquired — Citizen and alien heirs.</p> <p>Escheat — Grounds for escheat.</p> <p>Trusts — Constructive trusts — In general.</p> <p>Where a naturalized citizen of this State died intestate in November, 1884, being at the time the owner of real property in this State, and leaving him surviving five brothers and a sister, two of the brothers, only, being citizens and the remaining brothers and the sister being aliens, held:</p> <p>The two brothers who were citizens of the State inherited from the intestate each one undivided sixth part of said' real property.</p> <p>The shares of two other resident ’alien brothers, who died in 1880 and 1881, respectively, and neither of whom filed a deposition declaring his intention to become a citizen, escheated to the State.</p> <p>As neither chapter 207 of the Laws of 1873 nor chapter 593 of the Laws of 1897 was retroactive in its provisions, the shares of the other alien brothers, who died, one shortly after the passage of the act of 1873, and the other shortly after the passage of the act of 1897, without having filed a deposition declaring the intention of either to become a citizen, also escheated to the State.</p> <p>An alien non-resident sister, who died in 1878, took her share under the act of 1874, but, although no deposition declaring her intention was required of her, on her death her share escheated to the State as her son and only heir was, at the time of her death, a non-resident alien.</p> <p>In the case of a non-resident brother, who has not been heard of in thirty years, upon proof of circumstances which, coupled with his not having been heard from for so long a period, raise a presumption of his death, and, no deposition having been filed by him, his share will also be held to have escheated to the State.</p> <p>And where the two citizen brothers of the intestate, in 1874, after his death, conveyed to his widow the lands of which he died seized, claiming to be and describing themselves as his sole heirs at law, and the widow took possession under the deed and she and her grantees have been in possession - ever since, there was ah ouster of the alien co-tenants; but the possession of the widow and those, claiming under her for less than forty years is not conclusive upon the State.</p> <p>In such a case, where the-executor of the widow assumed to sell" and convey the whole title, although she was in fact vested with one undivided fourth part thereof only, the County Court is without jurisdiction to impress three-fourths of the' purchase money paid with a trust in favor of the rightful owners of the remaining three-fourths of the real property, and to substitute the purchase money for the interest in the land owned by others than the widow, and to confirm a title in the vendees to the whole of -the property.</p> <p>And where the vendee, who brings an action for partition with a prayer for certain equitable relief in the event of certain conclusions by the court, neither alleges mistake nor fraud but seems to have gone into the transaction with his eyes wide open and fully advised of all the circumstances, a court of equity cannot give him any relief.</p>

<p>Action for partition-.</p>

<p>Joinder of causes of action — What causes of action may be joined — Claims arising out of the same transaction.</p> <p>A cause of action against a gas company for wrongfully discontinuing to furnish gas to plaintiff under an agreement may not be miited in the same complaint with a cause 'of action for damages for an assault upon plaintiff by defendant’s agent while attempting to discontinue the supply of gas."</p>

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

<p>Appeal from an order made in the City Court of Buffalo,. denying a motion to dismiss the complaint herein and rendering judgment for defendant on the pleadings.</p>

<p>Appeal by the defendant from a judgment rendered in the justice’s court in the town of Hempstead, county of Nassau, upon the verdict of a jury.</p>

<p>Common schools — Use by public.</p> <p>Where a man with a family containing children of school age, living in a -rural town, hired a part of a house in a district of a neighboring town where a system of graded schools was established, furnished the apartments and moved into them about the , first of September and his children attended the schools there, and where, at the close of the ■ school year, the family moved back to . their former residence and, at the beginning of the following - school year, again moved to the same apartments they had occupied the previous winter, where the furniture they had then used had been-left, although the father of the family continued to vote in the rural town, and was a candidate for office there, and ran his-farm there with hired help, he was, nevertheless, a resident during the school year of the district in which his children attended school, within the meaning of section 568 of the Education Law, providing that the common schools shall be free to all persons residing in the district.</p>

<p>This claim is for the refund .of excess registration fees, which claimant, a corporation organized and existing under the laws of the State of Few York, was compelled to pay-under protest on registering eighty double-deck automobile stages, operated by the claimant in..passenger transportation service in Few York city, F. Y.</p> <p>The claimant, on or about July 28, *1910, made application to the Secretary of State, on blanks furnished by the Secretary for the registration, for the period from August 1, 1910, to February 1, 1911, under chapter 374 of the Laws of 1910, of sixty-one double-deck automobile stages operated in its passenger service.</p> <p>The claimant asserted that the stages were motor vehicles, used solely for commercial purposes, and that the registration fee for the mentioned period should be under said act at the rate of $2.50 per stage, and in the aggregate sum of $152.50.</p> <p>The Secretary of State refused to receive the fees on the ground that the stages, though engaged exclusively in passenger service, were not motor vehicles used solely for commercial purposes.</p> <p>Thereupon claimant paid under protest to the Secretary of State, as the registration fees of sixty-one automobile stages, the sum of $302, the claimant having previously paid $2.50 on account.</p> <p>Subsequently mandamus proceedings were instituted in which it was determined that the position taken by the claimant was correct and that excess fees had been paid by it; whereupon this claim was filed for an award for such excess.</p>

This is a motion to dismiss a claim for damages due to delay caused by the acts of the State and particularly by reason of an injunction order procured in an action restraining the claimant from cutting trees and timber upon certain premises in the Adirondacks and from removing logs and timber that had previously been cut. In accordance with the provisions of the Code of Civil Procedure no undertaking was given by the State.

This claim, is one for the difference in the salary of the claimant, á confidential clerk of the second department of the Appellate Division of the Supreme Court, as fixed by the justices pursuant to Laws of 1907, chapter 560, and as allowed by appropriation acts of the State, being Laws of 1908, chapter 466, and Laws of 1909, chapter 432.

<p>Negligence — Acts or omissions constituting negligence — Use of land, buildings and other structures — Care required as to. occupants of adjoining lands.</p> <p>States — Claims — Liability of State in general.</p> <p>The State is liable for maintaining on its own lands an uncovered waste weir, through which water runs swiftly, so near to the adjoining premises of another owner as to be a source of danger to its occupants, where an occupant-of such premises becomes dizzy and falls from a flight of steps thereon into the sluice-way and is injured.</p>

<p>The claimant’s intestate was injured September 30, 1908, on a foot-bridge over the Erie canal at North Salina street in the city of Syracuse. The bridge spanning the canal was of a bascule pattern and was hung up at the time of the accident, being in process of construction. There was a footbridge on the east side elevated above the surface of the street approached by means of steps from the sidewalk and provided with an iron guard-rail. This railing, however, was not continued down the north steps but in place thereof there was a plank two inches by eight inches run along the edge of the steps. The intestate was walking over the footbridge and fell over the temporary railing, striking on his head and causing his death.</p>

<p>This claim arises out of an • appropriation made by the State of property of the Syracuse and Baldwinsville Railroad Company in the village of Baldwinsville, Onondaga county, F". Y. Fb part of the real éstate occupied by the claimant was taken. The real estate of the railroad company appropriated ivas situated some distance from the property of the claimant and the claim is that by the appropriation the State has cut off access from the railroad to the claimant’s premises and thereby caused it damages for which the claim of $100,000 is made against the State.</p> <p>The property of the claimant was connected with the main line of the Syracuse and Baldwinsville railroad by a branch line which was built and maintained for the exclusive use of the claimant upon a right of way granted by the claimant to the company under a contract with the railroad company. The appropriation prevented, it is claimed, all traffic facilities of the claimant over the Syracuse and Baldwinsville railroad and compelled it to employ teams and wagons to market its product to its damage in the amount stated.</p>

This claim is one for the flooding of claimant’s land and damaging his property by means of a coffer-dam, built by a contractor for the State in the Mohawk river about one mile down stream. The State had let a contract for'the construction of the Barge canal, and in connection therewith the contractor built a coffer-dam, the length of which varied, according to the stage of the water, from 90 to 220 feet.

<p>The State appropriated certain premises at. Sylvan Beach, on May 10, 1905. At that time the claimant was the lessee of the premises and in the occupancy thereof under a written lease made June 1, 1904. He had erected on the premises a wooden building, in which he conducted the business of selling confectionery, ice cream, cigars and tobacco. The appropriation line ran through this building.</p> <p>On July 25, 1905, the Superintendent of Public Works and the State appraiser were notified of the claimant’s rights as lessee. Negotiations for an adjustment of the damages for the appropriated land were conducted, and a contract was made between the owner and the State through the State appraiser November 28, 1905.</p> <p>Without the consent of the claimant, the compensation in this contract was paid to the owner of the land, and claimant’s building was sold by the State contractor and removed in' January or February, 1906.</p> <p>The State refuses to allow the claimant anything for his leasehold interest and claims that he has been foreclosed by the proceedings taken by the State and must look to the owner who has received compensation for the land.</p>

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

<p>Application for an order directing the placing of names upon the register of electors under section 153 of the Election Law.</p>

<p>Petition for an order revoking and cancelling a liquor tax certificate.</p>

<p>Petition for an order revolting and cancelling a liquor tax certificate.</p>

Application by the State Commissioner of Excise for a peremptory writ of mandamus addressed to the State Civil Service Commission directing them to classify as exempt the position of special agent in the Department of Excise.

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

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

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

Motion to continue a temporary injunction during the pendency of a taxpayer’s action to restrain the county treasurer of Rensselaer county from paying certain salaries.

<p>Tender — Pleading and evidence of tender — Pleading tender — Waiver of defect in pleading.</p> <p>The rule, that by retaining an answer of tender before suit brought which fails to* allege payment into court the irregularity or defect in the pleading is waived, ddes- not apply to an answer which also contains a. general denial and which for that reason could not be returned.</p> <p>In such a case, an objection at the trial to the introduction of proof of the tender for the insufficiency of the pleading should be sustained. «</p>

<p>Costs: Amount — Items of expense — Disbursements — Documentary-evidence generally; Allowances on motions and interlocutory proceedings— Commission to take testimony: Determination of right to and amount of costs — Retaxation — Evidence generally — Sufficiency.</p> <p>A party may in a proper ease take the testimony of a witness by commission and may have as many commissions for that purpose as are required.</p> <p>Where separate commissions must issue for the examination .of witnesses residing in different localities the party successful in the action is entitled under' section 3251 of t;he Code of Civil Procedure to tax in his hill of costs the sum of ten dollars .for-drawing the interrogatories attached to each commission.</p> <p>Where the affidavit of a successful plaintiff as to his disbursements, stating that the amount paid for the taking of depositions and for witnesses fees is correct and true, reasonable in amount, and has been actually and necessarily incurred in the action, is met only by the 'affidavit .of defendant’s attorney that said amount was not necessarily paid or incurred, was unreasonable and not authorized by section 3256- of the Code of Civil Procedure, the action of the clerk in taxing 'the disputed items of costs will not he disturbed.</p> <p>Under section 3256 of the Code of Civil Procedure -the expense incurred in procuring an official search which is a part of the record in the action made by the proper officer of a sister State is taxable as a necessary disbursement.</p>

<p>Cause of action — Cause of action resting on statute — Whether on statute or implied contract.</p> <p>Constitutional law — Provisions relating to corporations — Interpretation of provisions relating to liability of stockholders — Constitution of Ohio.</p> <p>Corporations — Liability of stockholders — Creditors — Nature of liability— Whether statutory or contractual. *</p> <p>Implied contracts — Contracts implied in law — Implied promise to fulfill obligation imposed by law — Corporate duties.</p> <p>Limitation of actions — Statutes of limitation — Giving effect to foreign statutes — Construction of statute.</p> <p>A judgment rendered in 1900, in an action by the receiver of an insolvent Ohio corporation to which all the stockholders including the defendants herein were parties, adjudged the corporation insolvent and that the defendants herein were liable as stockholders, and by an order of the court the plaintiff receiver was instructed to prosecute that liability, if necessary, in other jurisdictions. lit 1901 an action brought by a creditor of the corporation in the Ohio court, to which all creditors and stockholders as well as'the corporation and its receiver were made parties, resulted in- 1907 in an adjudication of the amount of deficiency in the corporate assets which must be assessed against the stockholders, and an order of the court directed the receiver to bring the present action (1908) to recover the proportion alleged to be due from defendants herein of said deficiency of assets, to be used by the receiver in the payment of the debts of the corporation. The complaint herein upon appropriate an.d sufficient allegations sets forth a cause of action against the defendants all of whom made default in the actions brought in the Ohio court. t - Held: The liability of the defendants herein depended not upon the statutes of Ohio but upon the contractual relation created between them as stockholders and the creditors of the corporation.</p> <p>The action was neither within the contemplation of section 1491 of the Revised Statutes of Ohio which provides that an action upon a liability created by statute, other than a forfeiture or penalty, must he brought within six years, and that the statute begins to run from the judgment of insolvency nor section 3258a of said statutes which provides an action upon the liability of stockholders can only be brought within eighteen months after the debt or obligation has become enforceable against' the stockholders, as, until the entry of the judgment' of the creditc-s’ action (1907), it had not been determined how much of the stockholders’ double liability was required to be paid by defendants herein in order to pay the claims of the creditors of the insolvent corporation and to meet the expenses of administration.</p> <p>The amendment to the Constitution of the State of Ohio, effective in 1903, cancelling the double liability of stockholders in corporations, is not retroactive and was intended to apply - only to corporations created after said amendment took effect.</p>

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

<p>Constitutional law: Prohibition of exclusive privileges and immunities —• What are exclusive privileges: Deprivation of life, liberty or property without due process of law — Regulation of business and trades: Trial by jury — Equitable actions.</p> <p>Health — Health regulations and offenses — Offensive occupations — Construction of ordinance.</p> <p>Injunction: Nature of remedy and when granted in general — Existence of other remedy^: Who and what may he enjoined — Miscellaneous matters — Commission of crime — When injunction authorized by stattite.</p> <p>Municipal corporations — Powers and exercise of governmental functions— Subjects of municipal regulation — Power in protection of public health — Collecting garbage and refuse.</p> <p>The Legislature may authorize a suit in equity to restrain the threatened violation of a penal statute without an infraction of the provisions of the Constitution relating to trial by jury.-</p> <p>The rule that,a court of equity will not interfere by injunction to prevent the commission of a crime does not apply where the Legislature has expressly authorized such intervention.</p> <p>The remedy which consists in the punishment of one for the commission of an act prohibited by statute as prejudicial to the .public health is not such an adequate remedy at law as prevents a court of equity from interposing by injunction to prevent the performance of the act.</p> <p>One who procures regularly from different places in a city scraps and fragments left over in the preparation of food for human beings and remnants of food once served to them and transports the same in wagons to Ms farm to serve as food for swine is a collector ct" garbage and kitchen refuse within the meaning of a municipal ordinance prohibiting such collection by any persons not having a contract with the municipality therefor.</p> <p>Such an ordinance does not deprive the owners of such material of their property but merely prevents a delivery thereof within the city.limits to one engaged in,a violation of the city law.</p> <p>liven if the ordinance deprived such owners of their property without' compensation, it would be a proper exercise of the police power, being designed for the protection of the public health.</p> <p>Nor is such ordinance invalid because it grants a monopoly to the person with whom the municipality contracts for the business of collecting garbage or kitchen refuse within the municipal limits, since it is a valid exercise of the police power.</p>

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

<p>Action to recover a penalty upon an agent’s bond. Demurrer to complaint.</p>

<p>Divorce — Foreign divorces and allowances — Jurisdiction of foreign court — Defendant domiciled in this State.</p> <p>Marriage —Annulment of marriage — Grounds — Existence of prior marriage.</p> <p>Although a rabbinical divorce between Russian Jewish subjects valid by the laws of Russia will he recognized here, yet, where it appears that the wife living here was not entitled to receive the same except upon her signing a certain paper, but that the same was delivered to her without the signing of such paper, the validity - of the divorce will not be recognized.</p> <p>.An where, at the time the divorce was granted or issued, the wife was legally domiciled in this State, having previously left Russia with the intention of permanently abandoning-her residence there, the Jewish rabbi in Russia was without jurisdiction to act.</p> <p>The subsequent marriage of the wife in this country was illegal , and will be annulled at the suit of the husband, who was informed at the time of their marriage that she was a widow.</p>

Action of interpleader to determine' the person or corporation entitled to receive the tax payable by the plaintiff as agent for certain foreign fire insurance corporations.

<p>Executors and administrators—Administrative authority and management of estafe—Authority and powers in general—-Duration of powers.</p> <p>Wills — Validity, operation and legal effect—Agreements, consents, election, acceptance, waiver, etc., of beneficiaries or others — Nonperformance of conditions — Effect of, upon pecuniary legacy after payment.</p> <p>Where a legacy is given upon the condition that if the legatee disputes the will the -legacy shall fail and be of no effect and the same shall become part of the testator’s residuary estate, the duty of'the executrix in reference to the legacy is not completed by the payment thereof to the legatee; but, upon breach of the condition, she miay maintain -an -action against the legatee to recover back the legacy.</p> <p>A condition annexed to the gift of a pecuniary legacy upon the breach of which it is provided by the will that the 'legacy shall fail is not inoperative by reason of the fact that it cannot operate upon the specific thing given but by the breach thereof the legatee ‘forfeits an equal sum and becomes liable in that amount to the executrix who may maintain an action to recover the same.</p>

<p>Action to recover damages for the construction and maintenance of a railroad bridge across a public street, the fee of which was alleged to he in the plaintiff, and for consequential damages to lands claimed to he part of the lands taken for said bridge.</p>