Volume 74 — New York Miscellaneous Reports

<p>Actioet for partition.</p>

<p>Carriers — Carriage of goods — In general — Duty of carrier to equip cars.</p> <p>Implied contracts — Contracts implied in law — Obligation to repay money expended at defendant’s request — Request — Facts from which request may be inferred.</p> <p>The duty of a common carrier to properly .equip its cars for the shipment of goods is a common law duty and does not depend upon the Federal act to regulate commerce; and, where the shipper is compelled to furnish' bulkheads or doors inside cars for the proper shipment of his goods, a promise on the part of the carrier to pay therefor is implied, and the expense thereof may be recovered by the shipper in an action therefor.</p>

<p>Action of replevin.</p>

<p>Appeal from a judgment rendered by a justice of the peace of the city of Utica in favor of the plaintiff and against the defendants.</p>

<p>Former adjudication — Causes of action barred or merged in general — Rule of merger.</p> <p>Where a husband and wife jointly acknowledge in writing liability for the rent of the house they occupy, and where the wife subsequently gives a written acknowledgment of her several personal liability therefor, and the landlord brings suit against both husband and wife and takes judgment against the husband only, such judgment is not a bar to an action against the wife thereafter brought to enforce her several personal liability for the indebtedness.</p>

<p>Appeal by the defendant Siff from a judgment of the Municipal Court of the city of Rew York, borough of Manhattan, second district, entered upon the verdict of a jury directed by the court in favor of the plaintiffs.</p>

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

<p>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>

<p>Appeal by the defendant from a judgment in favor of the plaintiff for $247.50 costs and interest, entered after a trial before the court- without a jury in the Municipal Court of the city of Yew York, borough of Manhattan, sixth district.</p>

<p>Charter party — Interpretation and effect in general — Interpretation in general — Duration.</p> <p>Customs and usages — Notice or knowledge.</p> <p>A custom in trade that, where boats are hired out for an indefinite period, they must be returned to the owner within a reasonable time after he makes demand therefor, and, if not so returned, the charterer must pay the reasonable market value for the use of the boats, even though it is in excess of the amounts for which they were originally chartered, is a local trade custom; and, where the owner of a boat chartered it for an indefinite period, he must show that the charterer had knowledge of such custom in order to bind him thereby.</p> <p>Where .the charter of plaintiff’s boats to defendant for an indefinite period contemplated at least one trip and no obligation to return the boats until he had made, the trip, his right to the use oí the boats cannot be cut ofi by a notice demanding their return within sixty days or, in default thereof, payment of the market value of their use, so as to charge him with the difference</p> <p>between the original charter price and the market value of the use of the boats after the service of the demand.</p>

Appeal by plaintiffs from a judgment of the City Court of the city of Hew York, dismissing the complaint at the close of the plaintiffs’ case.

Appeal by the defendants from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of ¡New York, borough of Manhattan, third district, and from an order denying defendants’ motion to open their default.

Appeal by the defendant -from a judgment of the City Court of the city of RTew York,, entered in favor of the plaintiff by direction of the court and also from an order denying defendant’s motion for a new trial.

<p>Appeal by the defendant from, an-order of the Municipal Court of the city of ¡New York, borough of Manhattan, -fifth district.</p>

Appeal by the plaintiff from a judgment and order of the Municipal Court of the city of blew York, borough of Manhattan, fifth district.

<p>Negligence — Actions — Eight of action, defenses and pleading—Complaint — Allegations of negligence in general.</p> <p>In an action against a railroad company to recover damages for personal injuries, an allegation in the complaint “ that the plaintiff was caused to be struck by the said projectile by reason of the negligence and carelessness of this defendant ” is insufficient as a statement of facts showing negligence.</p> <p>Guy, J., dissents.</p>

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

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

Appeal by the defendant from a judgment of the City Court of the city of Eew York, entered in favor of the plaintiff by direction of the court.

<p>Claim against the State of ¡New York for compensation for lands taken for the Barge canal.</p>

<p>Motion to amend nunc pro tunc adoption papers.</p>

<p>Constitutional law:'Provisions relating to public officers — Election or appointment to office —State Tax Commissioners: Privileges and immunities to citizens and equal protection of the laws — Tax laws — Exemption of railroad crossings outside of cities and villages.</p> <p>Taxes — Persons, objects and interests taxable — Corporations — Domestic corporations — Railroads — Special franchises: Property and interest subject to tax—Effect of Buffalo grade crossing contracts; Crossings of streets opened since building of railroad: Assessment — Appraisal; Equalization with real estate assessments in same tax district. .</p> <p>When the Legislature, in defining in the Tax Law the terms “land,” “real estate” and “real property,” enacted in 1881 that these terms should be” construed to include, inter alia, “ all surface, underground or elevated railroads ” it intended to include all railroads of every description.</p> <p>The subsequent provisions- of law for' the taxation of special franchises were intended to include the special franchises of railroads of every description, and the State Board of Tax Commissioners under such provisions have jurisdiction to assess the special franchises of steam surface railroads in the city of Buffalo.</p> <p>The provision of the act of 1907 (chapter 720) which exempts crossings outside a city or incorporated village and authorizes assessments upon crossings in cities or villages is not a denial of the equal protection of the laws within the Constitution of the United States, as under said act every railroad company is assessed in the same way upon the same class of property and the burden falls upon each alike.</p> <p>The provision of said act of 1907, authorizing the assessment of special- franchises by the State board instead of by the local assessors, is not an impairment of the right of home rule under the Constitution of the State, since the taxable property the State board is to assess is a new species of property never before assessed for taxation and the provision that tangible property shall be taxed as part of the special franchise relates to the fixtures, rails, ties, and other structures in the streets apart from the land itself as that word is generally understood.</p> <p>The court at Special Term should not declare a statute unconstitutional unless it clearly appears to be so.</p> <p>The special franchise of a steam surface railroad in and across a street is assessable for taxation at its value, including the tangible property in the street; and a contention that none of its occupancies of streets, highways" and public places has any taxable value in excess of the tangible property therein, based upon the idea that no revenue can be directly traceable to such occupancies and that the expenses of maintaining gates and flagmen at crossings, from damage claims growing out of accidents at crossings and from other causes are so great as to destroy the value of the intangible rights is untenable, since they must be viewed in their relation to the balance of the line in arriving at their value.</p> <p>The essential purpose of certain grade crossing contracts made between the commissioners on behalf of the city of Buffalo and certain of the relators pursuant to statutory authority was to eliminate crossings, and although they contained provisions that parts of streets on their present grade which were thereafter to be carried over the railroad by viaduct structure or under the railroad by subway were to be abandoned and discontinued by the city of Buffalo upon the completion of such viaducts or subways and should not thereafter be used for street purposes' on the present' surface thereof, there was but the substitution of one method of crossing for another, and the old franchise or right to cross the street still remained and was assessable; and it was immaterial whether the crossing or occupation was at grade or under or over the street or public place in.order to subject the value of the special franchise to cross or be upon, over, or under the street, to assessment under the law.</p> <p>In the notice of tentative assessment given by the State Board of Tax Commissioners to some of the relators, crossings and occupations by subways and by viaducts were both included; but bn grievance day, for some reason not apparent, the assessments on viaducts were omitted. Held, that such omission could not be corrected on certiorari to review the action of the State Board of Tax Commissioners and in no way affected the validity of the assessments upon the crossings -or occupancy by subways.</p> <p>So far as the franchises in certain streets or parts thereof which it was provided by said contracts should be closed, abandoned and discontinued have been assessed by .the State Board, the assessments should be sustained, as the public still have rights in such streets as the relators’ franchises in them, instead of being wiped out by said contracts, have been made of much greater value by the exclusion of travel therefrom.</p> <p>The provision of section 4 (4) of the .Railroad Law (L, 1890, ch. 565), granting to railroad corporations the .right to construct their roads across, along or upon highways, may fairly be construed as a grant across streets thereafter opened; and such a grant is a franchise within the purview of the Tax Law.</p> <p>The presumption is that the assessments by the State board for special franchises of the railroad at crossings are legal and proper; and the burden is upon the relators to show that they are erroneous or unlawful.</p> <p>When the State Board of Equalization after investigation in the discharge of its duty made its tables showing that real estate in Buffalo has, notwithstanding the formal oaths of the assessors that they have assessed it at its full value, been assessed at only seventy-six per cent, of its value, such tables should not be ignored on certiorari to review the action of the State Board of .Tax Commissioners, and a reduction of twenty-four per cent, should be 'made in relators’ assessments to equalize them with those of other property on the local rolls.</p>

<p>Taxes — Equalization, correction and review of assessments — Correction and review — Certiorari — Review — Evidence in general; Presumptions and burden of proof.</p> <p>The tables made by the State Board of Equalization, by which it appears that real estate, in Erie county is assessed at only seventy-six per cent, of its full value, supplemented by the tables „ of equalization made by the board of supervisors of Erie county as between the different tax districts .therein, were sufficient :prima, facie proof that the percentage of assessed value of real estate in the Buffalo tax district was not greater than in the rest of the county; and if such percentage was incorrect as applied to the city of Buffalo, the largest tax district in the county, it was incumbent upon the defendants to show the fact; and, in the absence of any proof other than the formal oaths of the assessors attached to the local assessment rolls that they had assessed real estate at its full value, an equalization on a basis of a reduction of twenty-four per cent, is justified and required.</p>

Proceeding- to appraise the damages to be paid to owners of lands taken for the purpose of providing an additional supply of pure and wholesome water for the city of Mew York.

<p>Weapons — Possession prohibited — Interpretation of statute — Possession.</p> <p>Section 1897 of the Penal Law, as amended by chapter 195 of the Laws of 1911, which makes it a misdemeanor to have in one’s possession certain weapons of a size which may be concealed on one’s person, means a physical and not a constructive possession, and doess not extend to having a weapon of the kind described in a cabinet at home.</p>

<p>Motion for the issuance of a peremptory writ of mandamus.</p>

Applications for peremptory writs of mandamus requiring the' board of assessors of the city of Hew York to ascertain the loss and damage to the land and buildings of the relators, and to assess the amount thereof upon the property deemed to be benefited 'by the change of grade of streets.

<p>Application for warrant of commitment under section 856 of the Code of Civil Procedure.</p>

<p>Depositions — Perpetuating testimony — Right to take.</p> <p>■ An examination of a person before action brought upon the application of one who is about to bring an action against him may not be had for the purpose of perpetuating the testimony of the person examined, nor where the applicant is fully acquainted with all the facts of the intended action.</p>

<p>Civil rights — Portraits of living persons — Remedies — Defenses —- Acquiescence.</p> <p>Injunctions —Actions for injunctions — Defenses —Acquiescence. Trade marks and trade names — Remedies — Defenses—Acquiescence.</p> <p>Where one who is in another’s employ voluntarily poses for a portrait to be used in his master’s business, he may not, after the latter has incurred expenses in the use thereof to build up his business, maintain an action upon the termination of the employment,-under section 50 of the Civil Rights Law, to restrain the further use of the portrait for advertising purposes.</p>

<p>Pleading — Amendments — Amendments by leave of court — Time for amendments — On motion for judgment on the pleadings.</p> <p>Where, upon a motion by the plaintiff for judgment on the pleadings, under section 547 of the Code of Civil Procedure, the lack of merit on the part of the defendant is apparent from the record, leave to amend need not be given; but upon such a motion, on determining that a pleading is insufficient, the defeated party should be allowed to amend when the pleadings themselves show that he has either a cause of action- or a meritorious defense which has been improperly pleaded; and, if this does not appear from the pleadings themselves, the court may allow the defeated party on the settlement of the order to submit proof by affidavit or by a pro-poised amended pleading 'that he has a good cause of action or a meritorious defense and provide for allowing an amendment on such terms as will accomplish substantial justice.</p>

<p>Mechanics’ liens—-Bond or deposit to avoid lien — Determination of liability upon bond.</p> <p>Where an action to foreclose a mechanic’s lien is not brought . within one year after the filing of the lien, or the lien continued by an order of the court within the same period, all liability upon a bond given to discharge the lien terminates', and .the owner of the property and the surety on the bond are entitled to be released from its obligation.</p>

<p>Attorney and client — The relation with the client — Creation and na- . ture of relation — Termination of authority.</p> <p>Contempt — Procedure—Process and entitling proceedings — Notice.</p> <p>After the entry of final judgment in a matrimonial action a contempt proceeding for nonpayment of counsel fees and alimony may not be instituted without personal service of the order to show cause upon the defendant husband.</p> <p>There is no presumption that the attorney who appeared for the defendant in the action prior to the final judgment was authorized to appear in any subsequent proceedings.</p>

<p>Husband and wife — Property owned jointly or in common — Bight to rents and profits — Remedies — Accounting.</p> <p>Tenants in common and joint tenants — Rights and liabilities inter se —Actions between.</p> <p>Tenants by the entirety during their joint lives are each entitled, as tenants in common, to one-half the rents and income.</p> <p>Equity has concurrent jurisdiction of an action for an accounting between tenants in common for rents and income.</p> <p>In an equitable action between tenants in common for an accounting of rents and income a defense that plaintiff has an ade- ' quate remedy at law is waived unless pleaded.</p>

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

<p>Bankruptcy — Discharge of bankrupt — Debts affected — Cause of action for conversion; Wilful or malicious conversion.</p> <p>G-. being indebted to his brother, the plaintiff, transferred to him his interest in a stock account and on a certain day plaintiff was indebted on said account in about $4,000- which was secured by listed corporate stocks valued at more than six times the amount of said indebtedness and on the same day by direction of plaintiff defendants, another firm of.stock brokers, took over said account, received the certificates-,of stock and paid the amount due to the ...other brokers. Almost immediately after the 'defendants came into possession of the property they began to sell it to different parties and continued to make such sales from time to time without plaintiff’s knowledge after they had realized more than sufficient to pay the amount due from plaintiff, and applied the avails to their own purposes, and about a month thereafter filed a petition in bankruptcy. In an action for conversion of said stocks, the answering defendants pleaded their discharge in bankruptcy, which had been granted after this action had been commenced. ■ An order denying a motion to vacate an order of arrest granted in . the action was affirmed on appeal, upon, the ground that said order was properly issued. Held:</p> <p>The decision o-f the Appellate Division (third department) is conclusive upon the trial court as- a holding that a liability for a conversion which is “ wilful and malicious ” within the meaning of section 17 (2-) of the Bankruptcy Act of 18-98.is not released by a bankrupt’s discharge.</p> <p>The decision of said Appellate Division though disregarded by the Appellate Division in the first department would be followed by a trial court held within any judicial district within the third department.</p> <p>Any wrongful act done intentionally, without just cause or excuse, is malicious within the meaning of said section.</p> <p>The proceed® of the conversion of plaintiff’s stocks having gone into defendants’ bank account and been used for their benefit, all of the members of the firm were civilly liable.</p>

<p>Corporations: Powers and visitorial supervision in general-—Moneyed corporations; Power of corporation to make contracts and effect of ultra vires contracts — Power to borrow money — Mortgages.</p> <p>Estoppel — Equitable estoppel and estoppel in pais — Facts creating estoppels — Ratification and affirmance — Receiving benefits or proceeds.</p> <p>Limitation of actions—Accrual of cause of action—Action by one representing rights of third person.</p> <p>Where one to whom an association organized under chapter 122 of the Laws of 1851 to accumulate a fund for the purchase of real estate, and make improvements thereon, and provide building lots or homesteads for its members, gave a large purchase money mortgage on the conveyance to it of a tract of land, understood the plans of the association and that when lots were deeded to members and fully paid for they would be free and clear of the lien of said mortgage, she is estopped from questioning the manner of doing business adopted by said association as stated in its articles.of association where with-full knowledge she took the money paid for the lots and released them from the lien of her mortgage.</p> <p>As the association itself could not recover from its members tliei-r unpaid stock subscriptions and dues that had been due more than six years with no payments made thereon, the six-year Statute of Limitations, if pleaded, is a bar to such recovery by a creditor of the corporation.</p> <p>As under section 5 of chapter 122 of the Laws of 1851 the association was authorized to borrow money for temporary purposes but for not more than two years, a mortgage given to secure a portion of the purchase price of a tract of land and having ten years to run is ultra vires and a defense to an action against the shareholders of the association upon a deficiency judgment in an action to foreclose the mortgage.</p> <p>The association having no right to give such a mortgage the plaintiff could not recover under section 11 of said act of 1851, making shareholders individually liable to the creditors of the association for all its debts, as said section was only applicable to an o indebtedness which the association had a right to incur.</p> <p>A loan to the association for which it gave its note payable in thirty days justifies the conclusion that the loan was for temporary purposes and a debt which the association had a right to incur under said section 5.</p> <p>Where, at the time of making and delivery of said note, the association was by virtue of Laws of 1895, chapter 672, section 3, a nonstock corporation, the holder <$f the note had no right of action against the shareholder® of the association individually until, a judgment on said note had been recovered against the association, and an execution had been returned unsatisfied, until which time the Statute of Limitations did not begin to run.</p> <p>The defendant association, being by virtue of Laws of 1876, chapter 564, under the control of the State Banking Department, must be deemed a moneyed corporation; and a judgment creditor’s action brought within three years after the return unsatisfied of an execution issued upon a judgment recovered against the association upon the note, to enforce the individual liability of the shareholders for the debts of the association, was in time.</p>

<p>Motion by plaintiffs for judgment on the pleadings.</p>

<p>Evidence — Parol evidence — The general rule and its applications — Attaching conditions.</p> <p>Negotiable instruments — Actions—Conditions precedent.</p> <p>Proof of an oral agreement, made upon the delivery of a promissory note, that payment by the makers is to be dependent upon their ability to realize upon the sale of certain bonds, is inadmissible as tending' to vary the terms of a written instrument.</p> <p>The holder of a note given in renewal of a former note may maintain an action upon it, notwithstanding his failure to surrender the original note, where he brings the original note into court and offers to give it up and. where no rights of third parties are involved.</p>

<p>Arrest on criminal charge — Making the arrest and disposition of prisoner — Rearrest.</p> <p>Habeas corpus — Penalties — For second imprisonment for same cause. Penalties —Actions for penalties — Pleading — Complaint— Statement of cause of action — Negativing exceptions.</p> <p>The second" arrest of one thought to be guilty of a crime is not unlawful because the person charged was released from custody under the former arrest for the reason that the information did not state facts sufficient to constitute a crime.</p> <p>Where an action is brought to recover a penalty under section 2051 of the Code of Civil Procedure for a second arrest which is prohibited by section 2050, the complaint must negative the exceptions contained in said section 2050.</p> <p>TJie words “for the same cause” in section 2050 of the Code of Civil Procedure mean an imprisonment on the same information and not imprisonment under a new information followed by a lawful warrant, the sufficiency of both of which stands unchallenged.</p>

<p>Assignments — Expectant estates — Contingent remainders.</p> <p>Bankruptcy — Validity of transfers and preferences by bankrupt and proceedings to annul such transfers — Preferences fraudulent in part — Sustaining transfer as to residue.</p> <p>Wills — Interpretation and construction — Disposal óf the entire estate — Eules and implications — Implications from general dispositive expressions.</p> <p>Where a testator gives a share of his residuary estate to trustees for the sole use and benefit of his son and his son’s wife during their lives and the life of the survivor, for the maintenance of themselves and their lawfully begotten children, and directs the net income to be paid to them for such purpose, or, in the event of the son’s death and his wife’s remarriage, to be paid to. such children, and further provides that, after payment . of “ all the special bequests and devises, as heretofore stated, the remainder of my estate, real, personal and mixed, shall, be divided into four equal parts, and disposed of in the manner and form herein pro-’ vided and directed,” the fair interpretation of the provision is that during the life of the testator’s son and the latter’s wife, or the survivor of them, their share should be held in trust for the benefit of themselves and their children, and that, after the death of the testator’s son and his son’s wife or her remarriage, the principal of such one-fourth of the residue of the estate should be delivered and paid to the children of his son or their descendants.</p> <p>, The interest of the daughter of the son of th^ testator under the will is assignable whether it be a vested or a contingent remainder.</p> <p>Where, after several loans to the testator’s granddaughter from her mother-in-law, the latter declined to make a further loan except upon an assignment of the former’s interest in her grandfather’s estate, which was made accordingly, the assignment should be upheld so far as it was given to secure the money loaned at that time, though as to the former loans it was invalid as a preference and must be set, aside as against the trustee in bankruptcy of the. granddaughter, appointed upon the latter’s adjudication as a bankrupt within four months after the execution of the assignment.</p>

<p>Demurrer to separate defense contained' in answer.</p>

<p>Demtjbbeb to complaint in action for libel.</p>

<p>Action for injunction and damages — cutting windows in alleged party wall.</p>

<p>Action for specific performance.</p>

<p>AcTiON-to recover damages for injury to, or destruction of, a manufacturing business or established -business, under the provisions of section 42 of chapter 724 of the Laws of 1905, relating to an additional supply of pure and wholesome water for the city of Hew York.</p>

<p>Motion for judgment on the pleadings under section 547 of the pode of Civil Procedure.</p>

Action to have declared void a contract for the cutting and delivery of timber from State lands granted to Cornell University to aid in the establishment of a school of forestry and to have said lands conveyed to the State.

Actios by plaintiffs as taxpayers of the town of Cameron to set aside a contract between said town and the defendant Buffalo Steam Roller Company, made February 4, 1911, vor thé leasing to said toAvn of a road roller.

<p>Bankruptcy — What passes to the assignee and the nature of his title — Contingent estates.</p> <p>Gifts — In general — Particular instances — Reserving ownership.</p> <p>Trusts — Execution and administration of trust — Dealings with estate in general — Personal interest in transactions.</p> <p>An estate in remainder, derived by will, contingent upon a remainderman surviving the life tenant, will not pass to the trustee in bankruptcy of the remainderman; but the remainderman, after his adjudication in bankruptcy, may maintain an action to protect his estate from the fraud of the testamentary trustee acting under a power of sale, contained in the will.</p> <p>Where the holder of shares of the capital stock of a corporation executes transfers thereof to his wife and delivers the certificates with the transfers to her, though no consideration passes therefor, these acts constitute a valid, executed gift of the shares; and title passes to the wife, though the stock is not transferred to her upon the books of the company and the husband continues to act as one of the directors.</p> <p>The husband-is not thereafter so interested in the corporation as to make a transfer by him, acting as testamentary trustee, of lands of his testator to the corporation, upon an adequate consideration, void, in the absence of actual fraud or injury to the estate.</p>

<p>Associations — Powers and rights of association — Holding real estate. Remainders — Effect on remainder of failure of precedent estate. Suspension of power of alienation — Conditions determining • validity of suspension — Limitations suspending alienation for term of years.</p> <p>An unincorporated church cannot take lands by devise, and a devise of lands to trustees to be conveyed to such church if it becomes incorporated within one year and eleven months from the time of testator’s death is an attempt to effect an unlawful suspension of the power of alienation and is invalid.</p> <p>The direction to the trustees contained in the same will to convey to the incorporated church of which the former unincorporated church was a branch or mission at the end of two years, if the mission church did not become incorporated within the period mentioned, does not create a trust for the benefit of the incorporated church; but, the former church not having been incorporated and, therefore, unable to take at the testator’s death, no title passes to the trustees but the title vests at once in the incorporated church.</p>

<p>Wills — Probate, establishment and annulment — Probate — Costs — Allowance to unsuccessful contestant.</p> <p>The executor named in an instrument that has been admitted to probate as a last will and testament may be allowed his costso and necessary disbursements and expenses in an unsuccessful contest of the probate of a later will, but can only be allowed the amounts he has actually expended.</p>

<p>Appeal by plaintiff from a judgment rendered in his favor by a justice of the peace o,f the city of Utica.</p>

<p>Carriers — Carriage of goods — Actions against carriers — Presumption- ■ and burden of proof — From failure to deliver.</p> <p>Where a fur overcoat is shipped by railroad in a box which is received at its destination and suffered to remain until the company’s liability becomes merely that of a warehouseman, and where the box, when it is. delivered to the consignee, is found to contain only some pieces of old iron and paper, a presumption of negligence on the part of the carrier arises; and the burden is then upon the carrier to explain the loss, if any reason therefor exists other than its own act or fault, and this burdgn is not sustained by the mere production of the empty box.</p>

Appeal by the defendants from an order of the City Oourt of the city of New York dismissing an appeal by the defendant® from ¡a judgment in favor' of the plaintiffs and also dismissing appeals from an order reducing the amount of said judgment and an order denying a motion for a new trial.

<p>Courts — Decision and rules of decision — Effect as precedents— Interpretation. ■</p> <p>Municipal courts — Procedure: Process — Ifonservice — Time for objection: Relief from default: Vacation of judgment.</p> <p>The opinion of an appellate court must be interpreted as a whole, and its language must be tested by reference to the actual question before the court.</p> <p>The authority of the Municipal Court of the city of Hew York being limited under section 253 of the Municipal Court Act to the opening of a default or a dismissal of the action, it may not vacate a judgment taken by default without setting the case down for pleading, hearing or trial, as it may require.</p> <p>The Municipal Court Act permits a defendant to raise an objection to jurisdiction over his person only at the trial, or, if he fails to appear, by an appeal to the Appellate Term under section 311 of said act; and the Municipal Court of the city of Hew York is without power to rule on such an objection except upon the trial of the action.</p> <p>After the recovery of judgment by default in a Municipal Court action defendants appeared specially and moved to set aside the judgment and dismiss the complaint upon the ground that the summons had never been served. The default was opened and the cause set for traverse, and on the return day defendants traversed the service of the process. The trial justice sustained the traverse, vacated the previous judgment and dismissed the complaint. Held, that the procedure was correct and authorized by the Municipal Court Act.</p>

Appeal by the plaintiff from so much of an order of the City Court of the city of ISTew York as provides that Gustav Goodman have a lien on any recovery had upon the cause of action set forth in the complaint herein to the extent of $225. '

an order of the City Court of the city of Hew York denying defendant’s motion for a new trial, made upon the.minutes of the justice at the trial, after the verdict of the jury.

Appeal by the plaintiff from a judgment of the Municipal Court of the city of Yew York, borough of Manhattan, first district, dismissing the complaint upon the merits, after a trial held before the court without a jury.

<p>Appeal by the defendant from a judgment of the Municipal Court o-f the city -of Hew York, borough of Manhattan, fifth district, rendered in favor of the plaintiff.</p>

■ Appeal by the judgment-debtor from an order, of the City Court of the city of Hew York adjudging him guilty of a contempt of court and directing that upon his failure to pay the sum of $448.15 he should be committed to the county jail.

<p>Municipal Courts — Procedure — Relief from default — Sufficiency of excuse.</p> <p>Where, on a motion in the Municipal Court of the city of New York to - open his default, the defendant presents his affidavit stating that he resided elsewhere than at the place where the process server states he served the summons upon him and denies that he was served with process, his motion to open his default should be granted.</p>

<p>Dismissal — Grounds and defenses —■ Failure to proceed — Failure unexcused.</p> <p>While, under section 822 of the Code of Civil Procedure and rule 36 of the General Rules of Practice, the City Court of the city of New York may in its discretion deny a motion to dismiss an action for want of prosecution, an order of dismissal should be granted where no excuse for the neglect to prosecute is shown.</p>

<p>Landlord and tenant: Termination of relation — Breach of convenant or condition: Re-entry and recovery of possession by landlord — Summary proceedings; Statutory provisions — Relations of parties — Previous termination; Defenses and grounds of opposition — Tenders and offers to pay rent.</p> <p>The institution of an action "of ejectment against "a tenant for. failure to pay rent, upon the ground of condition broken, terminates the relation of landlord and tenant; and. while the action -is pending, the landlord cannot maintain summary proceedings for nonpayment of rent.</p> <p>The legal effect of the commencement of the action of ejectment is equivalent to an actual re-entry by the landlord and terminates ab '■initio the estate of the tenant; and, if he continues to remain in possession, he may be dispossessed by a writ of assistance which, as matter of right, will follow a judgment in favor of the landlord in the action of ejectment.</p> <p>Where a landlord repeatedly- refuses to accept rent from his tenant, he cannot maintain summary proceedings to dispossess the tenant for nonpayment of said rent.</p>

Appeal by the plaintiff from a judgment of the Municipal Court of the city of Mew York, bo'rough of Manhattan, seventh district, dismissing the complaint at the close of the plaintiff’s case.

<p>Damages — Particular contracts and relations — Contracts for sale or purchase of goods — Breach by seller •—■ Effect of special market of buyer.</p> <p>Evidence — Opinion evidence — Expert evidence — Basis of opinion — General rules — Opinion without sufficient basis.</p> <p>Examination of witnesses — In general — Questions calling for opinions or conclusions.</p> <p>In an action upon a contract by which plaintiffs would have secured certain pipes and valves from a building in the course of destruction if defendant had performed the contract on its ■ part, the .plaintiffs must show what material they would have received and the loss sustained in failing to receive it.</p> <p>The facts upon which the opinion of an expert witness is founded must be laid before the trial court either by assuming, them in a hypotheieal question or by the testimony of the expert.</p> <p>The testimony of expert dealers in building materials that they went into the cellar, saw some pipes and from that estimated the whole amount probably in the building "furnishes no basis upon which the amount of material may be properly estimated.</p> <p>Plantiffs’ loss was .to be determined by the general market price at which the material contracted for could have been bought by them, and their testimony to the effect that they had a special market for the material at a higher than the market price is inadmissible.</p>

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

<p>Chattel mortgages — Recordation«— Original filing: In general — Effect of record as notice: Persons entitled, to protection—Other lienors. Inns and innkeepers — In general — Lien.</p> <p>Liens — Nature, establishment and termination — Priorities.</p> <p>Where a guest brings to a hotel a piano which he mortgages and of which he retains possession after default, the lien of the hotel keeper under section 181 of the Lien Law is superior to that of the mortgagee.</p> <p>While the legal title to property covered by a chattel mortgage is in the mortgagee, the right to its possession until default remains in the mortgagor, and upon his default vests in the mortgagee. The mortgagor thereupon becomes a mere naked bailee with the right of redemption hut his possession is not tortious.</p> <p>The filing of a chattel mortgage upon property brought by a guest to a hotel is not constructive notice to the keeper of the hotel of the existence of the mortgage so as to deprive him of his lien as an innkeeper .under section 181 of the Lien Law.</p>

<p>Appeal from a judgment of the Municipal Court of the city of-New York, borough of Manhattan, sixth district, in favor of the defendant, .entered after a trial by the court without a jury.</p>

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

Appeal by the defendant King from a judgment of the Municipal Court of the city of Rew York, borough of Manhattan, third district, in favor of the plaintiff and against both defendants, rendered after a trial by the court without a jury.

<p>Appeal bv the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district. '</p>

Appeal by the defendant William J. Diamond from a judgment of the Municipal Court of the city of Hew York, borough of the Bronx, first district, entered upon a verdict rendered in favor of the plaintiff.

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

Appeal by the defendant from a judgment of the Muncipal Court of the city of Eew York, borough of Manhattan, eighth district, rendered in favor of the plaintiff and from an order granting his motion to open his default, on condition that he pay $10 to plaintiff, and, if these terms are not complied with, denying the motion.

<p>Appeal by the defendant from an order of the Municipal Court of the city of Hew York, borough of Manhattan, eighth district.</p>

Appeal by the defendant Keller from an order of the Municipal Court of the city of Mew York, borough of Manhattan, second district, vacating and setting aside a judgment entered herein in favor of the said defendant and also from a ■judgment of the said court rendered in favor of the plaintiff after the vacating of the first judgment.

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

<p>Municipal Courts — Procedure — Adjournment — Grounds — Sufficiency.</p> <p>Where a case in the Municipal Court of the city of New York is adjourned to the 30th day of June for trial, the defendant’s expectation that' the case will not be tried until September is not unreasonable; and where, on the adjourned day, the justice is not in court, the defendant is not bound to anticipate the making of an order for the trial of the case in vacation; and where, on the day thereafter set, a material witness for the defendant is out of the State and has been since before the date of the prior adjournment and the defendant' has communicated with him by mail and telegraph and oifered to pay his expenses if he would return and testify and has received a letter from him saying he would be back by a certain later date, it is error to deny defendant’s motion for an adjournment; and judgment against him upon the denial of such motion will be reversed on appeal.</p>

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

The plaintiff appeals from an order of the Municipal Court of. the city of blew York, borough of Manhattan, second district, setting aside the verdict of a jury rendered in the plaintiff’s favor for $200.

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

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

Appeal 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>Motion to compel the clerk of the Appellate Term to receive appellant’s brief on the appeal without payment of a fee.</p>

<p>Appeal from an order of the City Court of the city of New York, denying defendants’ motion for a judgment on the pleadings, pursuant to section 547 of the Code of Civil Procedure.</p>

<p>• 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 defendants.</p>

Plaintiff appeals from an order of the City Court of the city of blew York denying its motion for judgment for the. amount demanded in the second and third causes of action alleged in the complaint and a severance of the action.

<p>Cause of action—'Facts constituting cause — Liability for blasting. Trespass—Acts constituting trespass and liability therefor — Trespass on real property.</p> <p>Where'a water pipe leading into plaintiff’s house was broken by the.falling in of a large section of rock caused by an explosion while defendant’s workmen were blasting out rock for a trench, defendant is not liable as for a trespass upon real property if the rock fell from mere concussion and not as a direct result of the blast.</p>

<p>Application under section 153 of the Election Law to correct the registry of voters in the second election district of the town of Elma, Erie county, Y. Y. '</p>

<p>Proceedings upon the return of a writ of habeas corpus.</p>

<p>Adoption of children — Mo'de and sufficiency of adoption — Sufficiency of final order — Collateral attack.</p> <p>Habeas corpus — Grounds for relief and what will be reviewed — Custody of child — Under adoption proceedings.</p> <p>Where an order of adoption recited all the jurisdictional facts necessary to its validity and that it appeared to the satisfaction of the county judge “ that said minor has been abandoned by its parents,” an allegation in the traverse to the’ return to a writ of habeas corpus that the mother had no notice of the proceeding does not impeach the jurisdiction of the County Court to make the order nor require the court which issues the writ to take proof on.that question.</p> <p>Such an allegation is consistent with and not 'a denial of the finding of the county judge that the mother had abandoned the child, and the statute dispenses with notice in such a case.</p>

<p>Infants — Property and conveyances — Sale, mortgage or lease under order of court — Proceeds—Application to payment of taxes. Taxes — Sale of land for taxes — Sale — Effect of irregularities in prior proceedings.</p> <p>Villages — Taxes in villages — Sale of land for taxes — Limitation of lien.</p> <p>Where taxes are not collected by distress of the goods of the taxpayer upon the collector’s certifying his inability to collect them, the property assessed must be described definitely, added to the next year’s roll and again placed in the collector’s hands; and, in case of his inability then to collect it, the unpaid tax must be certified to the State Comptroller and collected by sale of the land, and, if these proceedings are not taken at the time and in the manner prescribed by statute, their omission cannot be supplied at a later date.</p> <p>Under the charter of the village of New Brighton, which provided that' taxes should be. liens for ten years but limited the power to sell for nonpayment to five years, after the expiration of both, periods there remained no lien or power to sell for village taxes levied prior to the taking effect of chapter 404 of the Laws of 189S, which cut out the five and ten-year provisions and made taxes permanent liens.</p> <p>No part of the proceeds bf a mortgage upon lands of infants executed by authority of the court should be directed -to be applied by the special guardian to the payment of any such taxes on the mortgaged premises which have become unenforceable at the time of the execution of the mortgage.</p>

<p>Civil Service — Removals and reinstatement of veterans — Power of removal — De facto or improperly appointed officers.</p> <p>Where relator, an exempt volunteer fireman, was temporarily employed by the court-house committee of the board of supervisors first as a fireman and later as assistant engineer in the power plant of the court-house building, a position in the competitive class of the classified service, before an eligible list was made, he is not entitled to the protection of section 22 of the Civil Service Daw and may be displaced by the appointment of another from an eligible list thereafter furnished the board of supervisors by the State Civil Service Commission.</p>

<p>Common schools ■—• Officers — District superintendents — Qualifications.</p> <p>Constitutional law: Provisions relating to public officers — Prescribing qualifications for office: Deprivation of life, liberty or property without due process of law — Prescribing qualifications for office ■ — Qualifications of district superintendents of schools: Privileges and immunities of citizens of the United States and of the several States and equal protection of the laws — Prescribing qualifications for office.</p> <p>Prohibition, writ of — Nature and grounds—Acts of public officers and boards.</p> <p>Chapter. 607 of the Daws of 1910,- by which the office of district superintendent of schools was created, amends sections 380-398, both inclusive, of the Education Law, and the reference to section 303 in subdivision 2 of said section 398 providing that section 303 shall take effect April 1, 1911, is a clerical error, there being no such section, and it being plain that section 383 was intended.</p> <p>The provisions of section 384 (2) of the Education Law as amended in 1910, that, in addition to being twenty-one years- of age and a citizen of the United States and a resident of the State, a person to be eligible to the office of district superintendent of schools must possess a teacher’s certificate and “ also pass an examination prescribed by the commissioner of education on the Supervision of courses of study in agriculture and teaching the same,” are remedial in their nature to the end that fit, proper and reasonably well qualified persons should be district superintendents of schools, do not impose any arbitrary or unreasonable qualifications, and do not in any way violate the provisions of section 1 of article I of the State Constitution forbidding any citizen to be deprived of his rights or privileges "unless by the law of the land, or the judgment of his peers;” or the provisions of section % of article X of the State Constitution providing that officers shall be elected by the people or appointed; or the provisions of section I of article XIII of the State Constitution prescribing an official oath and providing that' “no other oath, declaration or test shall be required as a qualification for any office of public trust; ” or the provisions of the 14th amendment of the Federal Constitution relating to the privileges and immuni- . ties of citizens and the equal protection of the laws.</p> <p>Where the Constitution is silent upon the subject a person entitled to exercise the right of suffrage does not necessarily possess the right to hold an office, but the Legislature may prescribe the qualifications of a candidate for an office created by it.</p> <p>The writ of prohibition is the proper remedy where a board of public officers are about to perform an illegal act quasi judicial in its nature.</p>

Appeal by certain taxpayers, under section 157 of the charter of the city of Hornell, from an assessment for paving made by the common council, hoard of public works and the assessors of said city.

<p>Parties — Substitution — Time for making—After judgment.</p> <p>Where during the pendency of an action to foreclose a mechanic’s lien the plaintiff is adjudged bankrupt and a trustee is appointed, but no application is made to substitute the trustee as plaintiff, and the action proceeds until judgment for costs is recovered by one of the defendants against the plaintiff, the trustee cannot thereafter be substituted on the plaintiff’s application in the place of the plaintiff in the judgment for costs.</p>

Motion by defendant- to compel the plaintiff to serve an amended complaint' separately stating and numbering her causes of action.

<p>Motion by one defendant to strike out part of an answer of another defendant which seeks to set up a counterclaim or cause of action against the moving defendant.</p>

<p>Motion by plaintiff to set aside appraisal of damages made pursuant to stipulation.</p>

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

Motioit for reargument of application in a matrimonial action to punish for contempt in failing to pay pendente lite alimony.

<p>Trusts —Accounting and discharge — Parties to accounting —Attorney having claim against trustee for legal services.</p> <p>In an action brought by a trustee for a settlement of his accounts, one whom he has employed as attorney and who had rendered services for the benefit of the estate, but who is' not satisfied to accept the compensation the trustee is willing to pay him, may be joined as a defendant, that his reasonable compensation may be determined.</p>

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

<p>Betting and gaming — Recovery of wager: Time of bringing action: Pleading — Complaint — Statement of cause of action.</p> <p>Section 994 of the Penal Law, giving the right to recover money lost on a bet of wager, and section 995 of the same law, providing for the recovery of money lost in betting on games, relate to different classes of bets; and the three months’ limitation contained in the latter section is applicable only to the recovery of money wagered on games.</p> <p>In an action to recover money lost at play, it is a good defense that the cause of action did not accrue within three calendar months before the action was commenced.</p> <p>In- such an action a complaint that fails to allege that the plaintiff at any time or sitting lost the sum or value of twenty-five dollars or upwards does not state facts sufficient to constitute a cause of-action.</p>

<p>Chattel mortgages — Recordation — Original filing: Persons entitled to protection — Notice: Transfers within the statute — Mortgage securing negotiable instrument.</p> <p>Husband and wife — Wife’s separate estate —Rights and liabilities of husband—"Agency of .husband for wife — Scope of authority in general.</p> <p>Mortgages — Lien and priority independent of the recording acts: Priorities between different mortgages — Mortgage securing negotiable instrument:' Notice as affecting priority.</p> <p>Principal and agent — Rights and liabilities of principal as to third n persons — Unauthorized and tortious acts of agents (including apparent authority)—Apparent authority in general.</p> <p>Where a married woman in taking a chattel mortgage is represented by her husband who acts for her in the whole transaction, she is chargeable with her husband’s knowledge of the fact that her mortgage is a second mortgage; and a purchaser from her in good faith and for value takes subject to the notice and knowledge she possesses.</p> <p>A chattel mortgage given to secure negotiable paper is subject to the same rights and equities in favor of third parties as one given to secure a bond or other obligation or indebtedness.</p> <p>Where, at the time of taking an assignment of a chattel mortgage, another mortgage on the same property, though filed subsequently to the mortgage that is assigned, states that it is a first mortgage, the person taking the assignment is put' upon inquiry ; and, where proper inquiry would have disclosed facts showing that the latter mortgage though subsequently filed was in fact a first mortgage, he is chargeable with knowledge of such fact.</p>

Action to have it declared, that chapter 856 of the Laws of 1911 is unconstitutional and void, that the defendants are usurpers and unlawfully holding and exercising the. offices to which they were appointed, and that the relators are rightfully entitled to hold the offices of judges of the Court of Claims arid to have paid to them the salaries fixed by law for the judges of such court.

<p>Application for the allowance of costs in an action in equity.</p>

<p>Counties — County treasurer — Compensation and commissions.</p> <p>Where, by -a resolution of the board of supervisors passed in 1889, pursuant to chapter 346 of the Laws of 1877 and chapter 233 of the Laws of 1880, the salary of a county treasurer was fixed at a certain sum which it was provided, should be in full of any and every interest, fee or compensation, he is, nevertheless, entitled, • in addition to such salary, to the compensation subsequently provided by the Legislature in the Liquor Tax Law for collecting the liquor taxes, making reports and issuing licenses, and also to the compensation provided by the bank tax law (chapter 550 of 1901) for the additional duties imposed upon him by the latter act.</p>

<p>Action for divorce.</p>

<p>Evidence — Documentary evidence — Official books and documents — Official certificates.</p> <p>Witnesses — Disqualification by reason of confidential relation — Between physician and patient: Knowledge acquired by observation: Information outside of employment.</p> <p>Where the sole issue in an action for absolute divorce is the adultery of the defendant, it is error to admit in evidence from the records of the board of health a birth certificate setting forth that the defendant and the corespondent were the parents of the child named therein.</p> <p>Testimony of defendant’s attending physician and of the manager of a sanatorium that defendant was their patient and that they attended her as such and the manager’s testimony that defendant came to the sanatorium without a child and took one away with her and that the alleged corespondent to defendant’s knowledge made some of the arrangements and paid all the bills are not privileged.</p> <p>The attending physician was not competent to testify as to what defendant was treated for at the sanatorium, and the nature of her ailment.</p> <p>Although there was no contradiction of the testimony for plaintiff, it would not be proper to disregard the incompetent evidence and render judgment either way without giving the parties an opportunity to be heard, or to offer further or other proof, if so advised; and, on motion to confirm the report of the referee in plaintiff’s favor, the case will be remanded with instructions for a rehearing and for a new report.</p>

<p>Action to recover real property.</p>

<p>Adulteration — Labels, brands. and tags —What constitutes violation of statute.</p> <p>Food — Statutory provisions regulating sale — Labels, "brands and tags — What constitutes violation of statute.</p> <p>Under sections 200 and 201 of the Agricultural Law which declare it unlawful to sell compounds or any imitation of an article unless it is labeled, branded and tagged so as to show the character and ingredients thereof or the substances contained therein, a sale of a compound as a substitute for lard in a wrapper which bore no label, brand or tag showing what it was is a violation of the statute, though it was not disputed that the box or tub from which the article sold was taken was plainly and properly labeled and defendant’s clerk who made the sale testified that he sold the article as compound and not as lard.</p>

<p>Adulteration — Constitutional and statutory provisions: Labels, brands and tags — What constitutes violation of statute: Actions for penalties — Evidence — Presumptions and burden of proof.</p> <p>Food — Statutory provisions regulating sale: Labels, brands and tags — What constitutes violation of statute.</p> <p>A sale of “ O’Donohue’s Fifth Avenue Salad Dressing ” in a bottle, the label thereon not stating the ingredients therein, does not violate the Agricultural Law in the absence of proof that the article sold is an imitation or injurious to the public health.</p> <p>To bring a salad dressing within the provisions of the Agricultural Law requiring a statement of its ingredients to be on the label, the burden of proof is on the plaintiff to show that there is some standard merchantable salad dressing and that the article sold is not such but a mere imitation or injurious to the public health.</p>

<p>Action to enforce liability of a stockholder in a foreign corporation.</p>

<p>Courts — Powers — Marine and City Courts — City Court — Equitable powers — Interpleader.</p> <p>Fraternal and mutual benefit associations — Designation and change of beneficiaries and right to benefits—-Change of beneficiary — Directing disposition of fund by beneficiary.</p> <p>Parties — Plaintiffs — Party in interest.</p> <p>Trusts — The beneficiary, bis estate, rights and interest — Where trust is passive.</p> <p>The City Court' of the city of New York has jurisdiction of an . action by the beneficiary of a deceased member of a fraternal association to recover the benefit payable upon the member’s death and an adverse claimant having been interpleaded by order the court has jurisdiction to determine the conflicting claims to the benefit .although questions of equity jurisprudence are involved.</p> <p>A member of a fraternal organization who has complied with the rules of the order may direct the beneficiary of his death benefit to distribute the fund in accordance with the provisions of his last will.</p> <p>Where a member of a fraternal organization, as required by .the by-laws and upon a form prescribed thereby, filed with it a declaration in which defendant was designated as the beneficiary of a fund arising from the payment of his death benefit, and by his last will the fund is made a part of his residuary estate, the ultimate beneficiaries under the will have the right to enforce payment of the death benefit by the association to them without invoking the intervention of the designated beneficiary.</p>

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

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

<p>Action to establish the priority of plaintiff’s lien under its mortgage to defendant’s lien under an execution issued upon its judgment.</p>

<p>Former adjudication — Who are concluded — State or municipality and officers or taxpayers.</p> <p>Judgment — Collateral attack — Grounds — In general.</p> <p>The authority conferred upon the Forest, Fish and Game Commissioner by section 20 of chapter 220 of the Laws of 1897, as amended by section 20 of chapter 135 of the Laws of 1898, to institute, prosecute and settle actions to determine the title to lands claimed by the State as part of the forest preserve, extends to a settlement by which the adverse claimants receive the soft wood standing on the lands, with the right to cut and remove it, and the State obtains a release of all further interest in the lands as well as a grant of other neighboring lands to which it .made no claim of title; and, in the absence of fraud or collusion, the State is bound by the judgment carrying out such settlement which has been performed on the part of the adverse claimants, although the terms of the settlement had been arranged and agreed upon before the suit was instituted.</p> <p>■Such judgment is a bar to a subsequent suit by the State in which it seeks to litigate anew the matters therein determined and procure an adjudication that the statute under which the action was brought 'and the settlement was made was unconstitutional.</p> <p>When a statute under which an adjudication is had between the parties to a controversy is afterward declared to be unconstitutional, the binding effect of the judgment upon the parties to the controversy is not impaired by such subsequent adjudication.</p>

<p>Actions to recover the possession of real property.</p>

<p>Action for libel,</p>

<p>Demurrer to complaint.</p>

<p>Action to have the marriage of the parties declared void.</p>

<p>Master and servant — Master’s liability for injuries to servant — Actions— Presumptions and burden of proof — Unexplained accident.</p> <p>Negligence—Actions — Evidence — Presumptions and burden of proof — Presumption of negligence from happening of accident.</p> <p>In an action by a locomotive fireman against a railroad company to recover damages for personal injuries, caused by an explosion in the fire box of a locomotive, arising from a considerable quantity of water coming suddenly into the fire box, the doctrine of res ipsa loquitur is applicable.</p> <p>Nor is it. sufficient to rebut the presumption of negligence that one of the boiler tubes was found after the accident to have been pushed forward, so that it was entirely free from the rear flue plate and projected some two or three feet through the front flue plate.</p> <p>And, where the defendant’s employees testify to an inspection of the engine and repairs thereto in the line of their duty two or three days before the accident and its good condition and freedom from leaks at that time, the credibility of the witnesses is for the jury.</p>

<p>Taxpayer’s action to enjoin the municipal authorities of the city of Schenectady from entering into a contract to pave Campbell avenue.</p>

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