Volume 74 — New York State Reporter

<p>1. Trust—Investirá in individual name.</p> <p>Where a trustee, who has funds of a trust estate in his possession, invests them in mortgages taken in his own name, with the consent of his co-trustee, the estate is the equitable owner of the mortgages.</p> <p>3. Same—Third parties.</p> <p>Where a trustee, who is also an officer of a corporation, assigns for value to a party who has knowledge or notice, trust securities, which he has taken in his own name, as security for a loan for such corporation, equity will compel the latter to take up the securities and release the lien on them.</p>

<p>1. Insurance—Benefit certificate.</p> <p>Where, under the rules of an association which require a member desiring to withdraw to pay all charges against him and surrender a certificate, with a written release of all claims against the. order, and make failure to pay assessments a cancellation of the certificate, a member, under a separation agreement, delivers to his wife his certificate, in which she is the beneficiary, upon an agreement that she pay the assessments and he not to change the beneficiary, and she thereafter retains the certificate and pays the assessments to the association, which has knowledge of the facts, the wife is vested with the title to the certificate, which cannot be defeated by the resignation of the husband without surrender of the certificate, or by his failing personally to pay the assessments.</p> <p>3. Same.</p> <p>In such case, the association cannot, in violation of its own laws, permit the husband, through .spite and malice, fraudulently to deprive the wife of her rights in and to the certificate which she has thus secured.</p>

<p>1. Feadddlent conveyances—Action to set aside.</p> <p>A person having a mechanic’s lien may maintain an action to set aside as fraudulent a mortgage of the premises by the owner.</p> <p>2. Same.</p> <p>Where a mortgage, fraudulent as against creditors, is assigned to the very persons or class of persons in whose interests alone it could be avoided, the title acquired by such persohs is not subject to be defeated.</p> <p>8. Mechanic’s lie.n—Pbiobity.</p> <p>A creditor, who may have a right to file a mechanic’s lien on property, has not until his lien is filed, any. superior equity over any general creditor, of any right to have the property or the amount due ¡from the owner of 'the property to the contractor applied to the satisfaction of his claim, in preference to those of other creditors.</p> <p>4. Same—Fbaddulent conveyance.</p> <p>Where a mortgage is void as to the lienors, the fraudulent mortgagee cannot give vitality'and effect by an assignment even to a bona fide creditor after the rights of the lienors become vested.</p>

<p>1. Appeal—Cask—Certificate.</p> <p>Where the appellant seeks the review of a question of law only, no certificate that the case contains all the evidence is necessary.</p> <p>2. Negligence—Contributory.</p> <p>Where wagon is being driven across and not within tracks, trolley car has no paramount right of way at street crossing.</p> <p>3. Same.</p> <p>If wagon is prior in' time at crossing, it is prior in right.</p> <p>4. Same.</p> <p>In such case, the driver is not bound to get out of way of car, nor is it negligence on his part to proceed to cross on a walk.</p> <p>5. Same.</p> <p>In this case, question of contributory negligence was held tobe for jury.</p>

<p>1. Trust fund—Liability.</p> <p>In an action in the nature of a creditor’s bill, to reach surplus income, plaintiff must show that surplus income exists.</p> <p>2. Same.</p> <p>Where the income of the trust fund has been paid, its source and amount explained, and its permanent basis established with certainty, an action to reach it is not premature.</p> <p>8. Same.</p> <p>In determining the amount of income necessary in a given case, due regard must be had for the station in life, the social standing and the accustomed manner of living, of the party, both before and since the income was provided.</p> <p>4. Same. "</p> <p>The beneficiary of such income may not, at the expense of her creditors, support and furnish spending money to an able-bodied husband. _ ,</p>

<p>Appeal from a judgment, dismissing the complaint as to the assignment on the merits, and as to the conveyance on the ground that°it could he attacked only by the assignee.</p>

<p>Insurance—Marine—Submission.</p> <p>The submission of the question whether the company knew, when the risk was taken, that the insured were charterers of the barge containing the property insured, was held erroneous under the evidence.</p>

<p>1. Assumpsit—Implied contract.</p> <p>Services, neither voluntary nor gratuitous, rendered at request of, and valuable to, defendant, raise implied contract on part of defendant to make - compensation.</p> <p>2. Appeal—Conflicting evidence.</p> <p>Where amount awarded, in an action upon quantum meruit, is upon disputed testimony and clearly within province of referee, and cannot be regarded as excessive, it will not be disturbed.</p> <p>3. Evidence—Assumpsit.</p> <p>In an action to fecover on a quantum meruit for services rendered, examination of plaintiff as to amount of sales and earnings of his own business during the period he was engaged in rendering the services sued for, is rightly denied, as it is not a question of whether the plaintiff was benefited or injured in his own business, but whether he had performed services for the defendant which entitled him to compensation.</p> <p>4. Witness—Contradiction.</p> <p>Witness cannot be contradicted upon a collateral matter in any issue.</p> <p>5. Evidence—Letter.</p> <p>Where, in action to recover for liability incurred under section 2384 of gode for expenses, there is no defense that failure to arbitrate was result of any act of plaintiff and answer denied nothing except as to the amount, admission of letter, claimed to contradict plaintiff’s testimony that he never withdrew from arbitration, is rightly refused.</p>

<p>1. Landlord and tenant—Lease.</p> <p>The'agreement between the parties was held to be something more than a mere executory agreement and to amount to an executed lease.</p> <p>2. Same—'Waives.</p> <p>Parties may waive provision respecting execution of further paper.</p> <p>3. Same.</p> <p>Agreement of lessee to pay for full term did not cease to be a subsisting obligation by reason of his insolvency and the appointment of a receiver.</p> <p>4. Same—Receiver.</p> <p>Assets in receiver’s hands constitute a fund for the payment of debts, including those to mature as well as those that have become due.</p> <p>5. Same—Reletting.</p> <p>Lessor can, under provision and lease which authorizes him as agent for lessee to rent premises to new tenant, lease at lower rent and charge receiver with deficiency.</p>

<p>Appeal from a judgment in favor of defendants.</p>

In May, 1892, and for years prior thereto, the defendant’s testator, Thomas Garry, was engaged in the retail dry goods business in Grand street, in this city. The plaintiffs were clerks in his employ ; Maher receiving $33 per week, and Molohan receiving $18 per week. The testator had an investment of upward of $151,000 in the business.

<p>1. Conditional sale—Title.</p> <p>Where a person consigns an article to another for sale on his account, the article to remain his property until sold, and the property is seized on an execution against the consignee and sold to a third party, the latter acquires no title thereto by the execution sale.</p> <p>3. Evidence—Value.</p> <p>The price which property realizes at a public sale is evidence of its. value</p>

<p>Appeal from an order imposing, as a condition for the substitution of attorneys by plaintiff, the payment of a certain amount.</p>

<p>Appeal from a judgment in favor of plaintiff.</p>

<p>1. Sale—Installments.</p> <p>Where the vendee of goods, under a conditional sale, sends the article for repairs to the vendor who retains it hut offers its return, upon payment of an installment due and one not due, the default is not waived.</p> <p>2. Same—Agreement to repair.</p> <p>In such case, where, under an agreement by the vendor to keep it in repair, the vendee takes it, to the vendor’s knowledge, for repairs to the manufacturer which are made without charge except in one instance, when the sum of §4 50 is demanded by the manufacturer and paid by the vendee, the latter cannot deduct such sum from an installment due, in the absence of evidence that the vendor acquiesced in such payment or assumed to reimburse the vendee therefor.</p>

<p>1. REei-iaENCE—-Imputed.</p> <p>The contributory negligence of a driver cannot be attributed to one riding in a vehicle, where the person so riding has no control of the vehicle nor of the driver in its management.</p> <p>3. Same.</p> <p>To he engaged in a joint enterprise, so as to make one of the parties thereto responsible for the act of the other, the former must have some voice in the control, management or direction of the enterprise.</p> <p>3. Same.</p> <p>Negligence on the part of the driver of a vehicle cannot he attributed to-a mere passenger.</p>

<p>1. Appeal—Case—Certificate.</p> <p>Where the record fails to state that it contains all the evidence, the appellate court will assume that there was evidence sufficient to warrant the judgment rendered.</p> <p>2. Parties—Mo rtg age—Foreclosure.</p> <p>A mere agent and attorney who is employed to conduct negotiations for the assignment of a mortgage from a debtor to bis creditor has no interest, either legal or equitable, individually or as trustee, in the mortgage that-will entitle him to foreclose it.</p>

<p>1. Appeal—Honafpealable order.</p> <p>An order denying a motion, made immediately after the empanelling of the jury, that the trial proceed upon the amended complaint and answer, is not appealable.</p> <p>2. Same.</p> <p>In such case, it is the duty of the party aggrieved to put bis evidence or case in such position as will properly present the question involved, submit to an adverse result, and review the ruling either on appeal from the judgment, or by a motion for a new trial.</p>

<p>Appeal from an order denying a motion to make complaint more definite and certain, and to strike out allegations thereof as irrelevant and redundant.</p>

<p>1. Judicial sale—Basement.</p> <p>The sale of property is presumed to have been made subject to an open and visible easement of a railroad.</p> <p>8. Lunatic—Committee. i</p> <p>The committee of a lunatic may maintain an action for the partition of real estate in his own name, adding his official title, without making the lunatic a party to the action.</p>

<p>Mastbb and servant—Appliances</p> <p>In the absence of proof to show that the railroad or the car or the track was out of order, the company is not chargeable with negligence in permitting a switch to be open, where it was in perfect order and of the same pattern of switch as is used by other street railroad companies and there is no evidence to show how the switch came to be opened.</p>

<p>Appeal from an order adjudging defendant guilty of contempt of court for failure to pay an order, in supplementary proceedings, commanding him to appear before a referee and be examined concerning his property.</p>

<p>1. Separation—Decree.</p> <p>A decree of separation cannot be awarded unless a legal ground therefor is established by a clear preponderance of creditable testimony.</p> <p>2. Same—Abandonment.</p> <p>The husband’s interference in the domestic management of the house, and disrespectful treatment of the wife before the servants, justify her in seeking-, for the time, the quiet and peace of her father’s home, and such leaving, with an offer to return if he would desist from such conduct, does not constitute such an abandonment, as entitles him to a divorce from bed and board.</p> <p>8. Same—Children.</p> <p>Where neither party is entitled to a divorce, the court has jurisdiction over the custody of the children.</p>

<p>Damages—Liquidated.</p> <p>Where a contract imposes reciprocal obligation and fixes the .amount of damages to be paid in case of a breach by either party, and the amount so fixed is not disoroportionate to the amount of damages that may reasonably be within the contemplation of the parties at the time, the covenant is one of liquidated damages.</p>

<p>Appeal—Appealable order.</p> <p>An order, requiring a pleading to be made more definite and certain, so as to show whether matter pleaded was intended as ,a defense only or as a counter-claim requiring a reply, rests in discretion and is not appealable.</p>

<p>Appeal from a judgment in favor of plaintiff, and from an order denying a motion for a new trial.</p>

<p>1. Chattel Mortgages—Filing.</p> <p>The failure to file a chattel mortg'age, where there is no change of possession of the mortgaged property, renders the mortgage absolutely void as to the existing contract creditors, though covering only exempt property.</p> <p>2. Execution—Exemption.</p> <p>The rig'ht of exemption from execution is a personal right, which must be asserted by the execution debtor.</p> <p>3. Same.</p> <p>The delivery of an execution to the sheriff binds property, exempt under section 1391 of the Code, until the debtor claims such exemption and notifies the officer of his claim.</p>

<p>1. COBFOBATIONS—VOTING.</p> <p>The legislature vests the power to validate, ratify and confirm the purchase of stock in another corporation engaged in a similar business, and to confer upon the purchaser all the rights, privileges and powers of an individual owner of stock.</p> <p>2. Samis,</p> <p>Section 40, chapter 688 of 1862, legalizes a prior purchase of stock by a corporation, notwith.standing the existence of a statute declaring such acquisition unlawful, and authorizes its voting suck-stock.</p>

<p>1. Dba.ina.se—FTecesstty.</p> <p>The reversal by the county judge of the determination of the commissioners, upon the ground that it was not necessary for the public health that the lands described in the petition of the land owners upon which the proceeding is instituted should be drained, is conclusive upon that question, and the appellate division has no power to review the facts, as the appeal to it is limited by the terms of the act to questions of law.</p> <p>3, Same.</p> <p>Where the county court reaches the conclusion that it is not necessary for the public health that the lands described in the petition should be drained,,it ought to order a reversal of the proceedings had.</p> <p>3. Same—Repeal.</p> <p>The act of 1895 does not, in terms, repeal the statute of 1869 or of 1871.</p> <p>4. Same.</p> <p>Proceedings under chapter 384 of 1891 ought not to be upheld under the statute of 1895.</p>

<p>1. Lunacy proceedings—Payment op costs.</p> <p>As soon as proceedings for the appointment of a committee of a lunatic have been successfully instituted, the court is authorized to direct the payment of the cost of the proceeding out of the property of the alleged lunatic.</p> <p>2. Same.</p> <p>The death of the lunatic, before confirmation of the return of the commission, does not deprive the court of the power of allowing" such costs and directing their payment.</p> <p>3. Same.</p> <p>When such costs are so allowed and ordered paid, they become such an obligation against the property of the deceased lunatic that the executor will be authorized to pay them.</p>

<p>Replevin—When Lies.</p> <p>Under a lease requiring the lessee to thresh the crop of grain in the barn on the premises and stack the straw in good order for the lessor, the lessor cannot replevin such straw, before it is threshed, from the lessee’s mortgages, though the latter with knowledge of the terms of the lease, harvested the grain and took it to another farm.</p>

<p>Appeal from a judgment rendered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.</p>

<p>1. Bastardy—Bond—Alternate provisions.</p> <p>A bond, executed by a putative father of a bastard child under section 851 of the Code of Criminal Procedure, which embraces conjointly the two conditions named in that section, is a nullity, and no action can be maintained upon it.</p> <p>2. Same.</p> <p>If an undertaking with these distinct alternatives is valid, the principal has the rig'ht to make the election as to which one of these several alternatives or conditions he will comply with.</p>

<p>_ Appeal from a judgment denying a peremptory writ of mandamus.</p>

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

<p>1. Elections—Registry list—Notice.</p> <p>A provision, in an order to show cause why the name of an alleged voter should not he stricken from the registry list of voters, that notice thereof should be given to other persons, is merely surplusage.</p> <p>2, Same—Charitable institution—Residence.</p> <p>Where a charitable institution is not supported in whole or in part at public expense nor an inmate thereof supported there at-public expense, the former constitutional provision does not prohibit him from acquiring a residence; and, where he claims that he has taken up his residence there permanently and expects to remain there during the rest of his life, he becomes, at the expiration of one year from his entrance, a resident of this state and a legal resident of that election district.</p> <p>3. Same.</p> <p>Section 3, article 3 of the Constitution of 1895, was not intended to change the legal status of the voting residence of any person whose right had vested prior to January 1, 1895.</p>

<p>Taxes—Illegal refunding.</p> <p>Under section 16, chapter 686 of 1892, a county judge cannot, until an- application for the purpose of having an illegal tax refunded has been made to the board of supervisors, make on order on the subject.</p>

<p>Common council—Contempt.</p> <p>A committee of the common council, appointed to look over bills and empowered to send for persons and papers and employ counsel and experts, has no power to investig-ate as to whether faro tables or roulette wheels were in operation, or whether unlicensed saloons were being conducted in the city.</p>

<p>1. Justice’s couet—Adjournment.</p> <p>A justice of the peace has no right to grant the plaintiff’s application for a second adjournment.</p> <p>2. Same.</p> <p>Such an adjournment is irregular, and as between the parties, the case is out of court.</p> <p>3. Same.</p> <p>The fact that the payment of defendant’s witnesses’ fees was imposed as a condition of the adjournment does not waive the irregularity.</p>

<p>1. Trial—Charge.</p> <p>Where the defendant has admitted,bv not denying in his answer, an allegation of the complaint, no evidence is required on the part of the plaintiff to establish such allegation.</p> <p>2. Evidence—Breach of promise.</p> <p>In an action for breach of promise of marriage, evidence bearing upon the question of exemplary damages is admissible.</p>

<p>1. Executor—Specific performance.</p> <p>An action to compel the specific performance of an executory contract, made by an executor or administrator, to release a debt, can be maintained.</p> <p>2. Principal and surety—Release.</p> <p>A reduction by a mortgagee of the rate of interest on his mortgage from six to four per cent., without any consideration, even though without the consent of the surety, will not release the latter from his obligation to pay the amount secured by the bond.</p>

<p>Appeal from a judgment dismissing the complaint.</p>

<p>Appeal from a judgment in favor of defendants.</p>

/Appeal from a judgment in favor of defendants. Action to set aside an assignment made by defendant Smith to defendant Peel, a deputy sheriff, of certain book accounts to apply on execution against Smith in the hands of Peel, as deputy sheriff, for collection.