Volume 75 — New York Miscellaneous Reports

<p>Replevin — Right of action and defenses — Defenses — Set-off and counterclaim.</p> <p>Set-off and counterclaim — Actions in which counterclaim or set-off may be allowed — Replevin.</p> <p>Replevin is a possessory action and a counterclaim for damages can neither diminish nor defeat a claim for the recovery of specific chattels.</p> <p>Where a certain machine was sold under a contract of conditional sale with reservation of title in the vendor until paid for, an answer in an action of replevin to recover the machine which alleges that it was not constructed according to the contract, that defendants had been subjected to a daily loss in operating it and to certain expenses for installing it, that they had been damaged by the delay in its delivery and that its value is less than the purchase price agreed to be paid, but there is no allegation that the installments of the purchase price or any of. them have been paid, is subject to demurrer for insufficiency.</p> <p>The breach of warranty relied upon to sustain the principal items of damage alleged being incident only to a completed sale, the answer was insufficient to justify the detention of the machine by the defendants.</p>

<p>Vendor and purchaser: Quantity, condition and description of property —What included generally — Easements — Violations of building code of New York city; Encroachments: Enforcements generally — Specific performance.</p> <p>The vendee in a contract for the purchase and sale of real estate cannot maintain an equitable action to have the depreciation in the value of the property fixed by reason of alleged .defects in the title, and, when the sum is arrived at, to deduct it from the purchase price and to compel a conveyance of the premises upon payment of the residue.</p> <p>Questions as to slight projections of the cornices, sills, lintels, ledge and casings^ of a building, beyond the building line, can only arise between the owner of the building and the municipal authorities and such projections do not render the title to the premises unmarketable where the contract of sale bounds the premises on the street line.</p> <p>A retaining wall wholly on the rear of the lot contracted to be conveyed is not an encroachment and in no way affects the marketability of the title.</p> <p>Whether or not a building on property contracted to be conveyed conforms to the building code of the city of New York or •other municipal ordinances does not' affect the marketability of the title tendered.</p> <p>Where a contract of sale bounds the premises sold on the street line, the vendee may not reject the title as unmarketable because certain vaults outside the street line and under the sidewalk but not owned by the vendor are not included in the deed tendered to the vendee, even though a boiler room in the building had no exit' to the street except through said vaults and section 76 of the building code makes it compulsory to have a direct access from the boiler room to the street.</p>

<p>Demurrers to complaint.</p>

<p>Demurrer to complaint.</p>

<p>Warehousing: Warehouse receipts — Construction: Care and protection of property—.Limitation of liability: Actions against warehouseman— Instructions. •</p> <p>In an action against a storage company for .negligence in failing to return certain laces which the complaint alleged were packed in a- drawer of a.sideboard stored with defendant to the knowledge of defendant or its agents and locked on delivery of the goods to defendant’s servants, it appeared that three separate writings sent or given by defendant at one time or another to plaintiff were in his possession. The. first recited “The responsibility of the warehouse for any piece or package is limited to $50, unless the value thereof is made known at the time of the storing and receipted for in the warehouse receipt;”, the second, the warehouse receipt which was mailed to plaintiff after the reception of the goods to be stored, recited “ The responsibility of the warehouse is limited to $50 for any article together with the contents,” and the third, the.order from plaintiff to defendant to return the stored goods to plaintiff’s home, recited “The responsibility of the warehouse is to continue in full force and effect and upon all conditions and limitations as provided in the terms of the warehouse receipt until the delivery of the goods by warehouse vans.” Held:</p> <p>From the several writings the relative lights of the parties were to be determined and nothing therein was sufficient to relieve the defendant from the consequences of its own negligence*</p> <p>The limitation of defendant’s responsibility to’ $50, as recited in the several writings, was binding upon the plaintiff.</p> <p>A charge to the jury limiting the plaintiff’s recovery to $50, though the value of the goods taken was much greater, was proper, and a motion -to set aside the verdict on the ground that the court erred in so charging will be denied.</p>

<p>Wills — Interpretation: Terms creating legacies and gifts of income, interest, support and releases of debts — General, demonstrative or specific character of legacies: Abatement — Specific and demonstrative legacies.</p> <p>Where, after the bequest' of certain pecuniary legacies, the testatrix'gave to her two sisters her wearing apparel and certain articles in her residence, and in the same clause " any money and securities to me belonging at my decease ” in equal shares, and in a subsequent clause gave all the rest, residue and remainder of her estate to the same sisters; and where afterward and before the death of testatrix one of her sisters died, held, that the bequest of one-half of decedent’s money and securities to her surviving sister was a specific and not a demonstrative legacy and was not revoked by a codicil whereby she bequeathed additional legacies and gave to her surviving sister the residue of the estate for life and that said legacy of one-lialf of decadent’s money and securities was not subject to abatement with the general legacies.</p>

<p>Action to declare provision of last will and testament void.</p>

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

<p>Account stated — Admission of ■ correctness of account — Statute of Limitations.</p> <p>Proof that defendant went' to plaintiff’s place of business and went over defendant’s account recorded on plaintiff’s books which stated the sum claimed to be due plaintiff and that defendant' admitted the account so stated was correct and promised to pay it is sufficient proof of an account stated between the parties, though no statement of- the account was given to defendant.</p> <p>The Statute. of Limitations begins to run against an account stated from the time the account is stated.</p>

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

Appeal by the defendants from a judgment of the Municipal Court of the city of ISTew York, borough of Manhattan, eighth district, entered, upon a verdict rendered in favor of the plaintiffs.

<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.</p>

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

<p>Landlord and tenant — Tenancies from year to year and month to month — Lease.</p> <p>Where, prior to the execution of a written lease for a year at an annual- rent of $600, payable in monthly installments, the last of a series of lik§ leases extending over, a period of ‘twenty years, the tenant's write the landlord that if agreeable to him they will continue using the demised premises “ and pay you $50 per month therefor, which is the same amount we are now paying” and the landlord accepts the conditions, the new, contract'will.not be construed as changing, the character of the tenancy from a yearly to a monthly hiring.</p>

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

Appeal by the plaintiff from a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, fifth district, rendered in favor of the defendant, and from an-order denying a motion for a new trial.

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

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

<p>Appeal by defendants from a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, ninth district, rendered in fayor of the plaintiff.</p>

<p>Pbooeedihg upon writ of certiorari.</p>

<p>Proceeding upon writ of certiorari.</p>

<p>Constitutional law — Validity of acts in violation of the spirit of the Constitution — Election of officers.</p> <p>The right of electors to nominate candidates at an official primary election must he surrounded hy the same safeguards as surround their right to vote at a general election.</p> <p>The provision of section 58 of the Election Law, added by section 29 of chapter 891 of the Laws of 1911, that “ The name of a candidate shall not appear more than once on the ballot as a candidate for the same public office or public position,” is obnoxious to the constitutional provision that no member of this State shall be disfranchised or deprived of any of the rights or privileges secured to any citizen thereof unless hy the law of the land or the judgment of his peers.</p> <p>The requirement of section 57 of the Election Law, added by said section 29, that “ the party emblem shall constitute the committee emblem of the party,” establishes an unconstitutional discrimination which affects and renders the whole of said section 57 null and void.</p> <p>The phrase “ except in the city of New York where they shall he elected in the fall primary ” in section 37 of the Election Law, added by section 27 of chapter 891 of the Laws of 1911, was inserted by patent and acknowledged inadvertence, and the statute should be read and construed as if such ¡phrase were nonexistent.</p>

<p>Eminent domain—Acquiring separate rights or interests in lands—■ Condemnation proceedings —.Property subject to appropriation.</p> <p>The “subject matter involved” upon the institution of a proceeding by the city of New York under the statute to acquire land for a water supply is the market value of the property at the time the title is vested in the city, and the five per cent, additional allowance for costs within the $2,000 limit under sections 3253, 3264 of the Code of Civil Procedure must be calculated upon the award made to the owner without reference to interest payable thereon under the statute.</p>

<p>Insane persons — Property and liabilities of incompetents — Debts of lunatic — Control and regulation in general — Gifts. •</p> <p>Liens — Insane persons — Where no execution was ever issued upon a judgment recovered against an incompetent person.</p> <p>By the provision of section 86 of the Insanity Law (Consolidated Laws, ch. 27), that “In all claims of the state upon relatives liable for the support of a patient, or upon moneys or property held by said- patient, the state shall be deemed a preferred creditor,” it was not intended to prefer a claim of the State for the care and maintenance of a person who was insolvent when committed to a State hospital for -the insane over the pre-existing debts of such person, as.such provision must be read in connection with that part of said section 86 which provides that “The. father, mother, husband, wife and children of an insane person, if of sufficient ability, and the committee, or guardian of his person and estate, if his estate is sufficient for the purpose, shall cause him to be properly and suitably cared for and maintained.”</p> <p>The committee of the personal property of an incompetent, who is simply a' bailee of the court, should distribute the property equitably among the creditors of the incompetent existing at the time she was so adjudicated; and a claim of the State for her care and maintenance in a State hospital for the insane which accrued prior to the institution of the accounting proceeding of the committee is not entitled to priority of payment under section 86 of the Insanity Law which applies to obligations and “money or property” held by the estate after there is really and equitably an estate, ascertained and determined by the marshaling of the assets and the payment of debts.</p> <p>Where it is doubtful whether a paper expressing no consiclera•tion, executed by the incompetent about a month prior to her commitment to the hospital for the insane, by which she certified that all the furniture in her house " shall be the property of my sister,” naming her, was intended to operate as a chattel mortgage, gift or will, the instrument is void for uncertainty and indefiniteness, and if considered as a bill of sale is in contravention of section 36 of the Personal Property Law in force at the time of its execution, and the committee of the incompetent is entitled to the proceeds of a sale of the furniture, which never left her possession.</p> <p>Where no execution was ever issued upon a, judgment recovered against' the incompetent, the judgment creditor acquires no lien upon her personal property and is not entitled to a, preference in the distribution of her estate.</p>

<p>Proceeding to review the action of the county treasurer of ¡Nassau county in refusing to issue to relator, John Higgins, a liquor tax certificate.</p>

<p>Application under section 13 of the Liquor Tax Law for a resubmission of the four local option propositions.</p>

<p>Common schools — Division and consolidation of district — School districts and sites — Meetings of voters — Appeals from orders and resolutions — Appellate jurisdiction of State Superintendent.</p> <p>The Legislature may provide that all matters involving the administration of the educational system of the State shall in the ' first instance be confided to the educational authorities.</p> <p>A meeting of an incorporated village held pursuant to sections 130, 131 of the Education Law (Laws of 1910, chap. 140) voted that the village be separated from the union school district and be and become a separate school district. Pursuant to said section 131(3) the result of the canvass of the vote at said meeting was certified to the county school commissioner with a request that he certify that the territory of the village was a separate school district but he declined so to do until satisfied that the entire territory of the village was within the boundaries of the said union school district. Under section 880(7) of the Education Law the school district and an elector thereof took an appeal to the State Com- ■ missioner. of Education who, under section 881 of said statute, stayed the issuance of the certificate separating the school district as voted, and a motion of the village to dismiss the appeal upon the ground that the State Commissioner of Education had no jurisdiction to hear it was denied.</p> <p>Held, that the decision of the question whether the village was not wholly within the said union school district as well as the status of the appellants was for the State Commissioner of Education under the provisions of the Education Law; that mandamus would not lie to compel the State Commissioner of Education to rescind the order staying the issuance of a certificate and compel the county school commissioner to issue the said certificate.</p>

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

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

<p>Street railways — Street railway companies, their franchises and right to use of streets.</p> <p>Bridges — Establishment, erection and maintenance — Construction, repairs and use.</p> <p>The franchise rights of a street railway company -to maintain and operate its lines over a truss bridge constituting a part of the highway between two towns in two counties adjoining the ends of the bridge are subject to the obligations of the public authorities to improve the highway or bridge as the public interest requires.</p> <p>The street railway company is not bound to construct or maintain the bridge unless some part of the obligation of said towns and counties so to do is put upon the railway company either by statute or its franchise.</p> <p>The grant of a franchise to construct and operate an electric street railway over said bridge provided that the grantee should strengthen the stringers to the amount necessary to carry safely the cars of the company and any other weight which might at the time be lawfully on the bridge, but no provision was made that the company should pay any part of the cost of repairs or restoring: Prior to the granting of the franchise the stringers were eight-inch steel beams weighing seventeen and one-quarter pounds to the foot. After, the franchise had been granted and as required thereby the company, without protest, removed the stringers from the side of the roadway of the bridge where it was abount to construct its line and substituted twelve-inch stringers weighing forty pounds to the foot. In a proceeding to determine whether the railway company must pay in full the expenses of certain repairs made upon the report, after examination of the bridge, of a civil engineer under the direction of the State Engineer,</p> <p>Held: that the railway company was obligated to put the stronger stringers not only under the portion of the bridge occupied by its tracks hut under the entire roadway of. the bridge wherever necessary, the roadway being one structure and sustained by cross pieces running its entire width; that the cost of such stringers and the repairs is part of the expense that must be paid by the railway company; the cost of the other parts of the bridge restored must be paid by the town.</p> <p>That under a provision of the franchise that the company should at its own expense keep and maintain the westerly one-half of the roadway of the bridge its obligation was a continuing one.'</p> <p>That under section 9S of the Railroad Law which requires every street surface railway company, so long as it shall operate its tracks in any street or highway, to keep in repair that portion of the street between its tracks and the rails and two feet outside the tracks the railway company is required to keep the floor of the bridge in a safe and proper condition for travel.</p>

Pro., § 873, by requiring the physicians making such examination to report in writing the results thereof and to file such report in ¡Niagara county clerk’s office.

<p>Abatement and revival — Death ' of party — Divorce — Action for divorce abates on death of plaintiff.</p> <p>An action for an absolute divorce is a personal one and abates upon the death of the plaintiff.'</p> <p>■ A motion in an action for absolute divorce, made after the death of the plaintiff, to vacate the final judgment in Ms favor and for a new trial upon the ground of newly-discovered evidence, must be denied for want of power and not in the exercise of discretion.</p>

<p>¡Motion to strike out certain allegations in an answer.</p>

<p>Motion to strike out certain allegations of the complaint in an action by a surgeon to recover for professional services.</p>

<p>Appeal — Bonds and undertakings on appeal — Form and sufficiency.</p> <p>The purpose" of section 184 of the Insurance Law is to relieve a surety company from attending for an examination through its officers whenever its undertaking is excepted to, and at the same time afford adequate protection to the person for whose benefit the undertaking is given; and a bond on appeal executed by a surety company duly authorized to transact business in this State and which some years ago filed, in the county in which its principal place of business is located, a sworn statement of its financial condition, may be accepted by the court in its discretion without further justification.</p> <p>The court upon a claim that the present condition of the surety company is different from- what it was when its sworn statement was filed may order a new statement to be filed and may also require the surety company to submit to an examination before a referee as to its" solvency, the exceptants to the bond to pay the costs of the reference if unsuccessful in their contention.</p> <p>The sworn statement of the surety company; as a justification, cannot be regarded as insufficient upon a claim that it has large outstanding contingent liabilities in this State and practically no assets, as, by section 26 of the Insurance Law, it is required to Jceep on deposit in this State or in the State of its incorporation the same amount and character of securities which a domestic insurance company is required to deposit with the Superintendent of this State.</p>

<p>Motion by plaintiff for an injunction pendente lite restraining the defendants from circulating letters among the jobbers of shoe findings derogatory to plaintiff’s manner of doing business .with said jobbers.</p>

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

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

<p>Jurisdiction — Nature of action as affecting jurisdiction.</p> <p>False imprisonment — Actions for — Pleading.</p> <p>Where inferior courts or judicial ofíicérs act without jurisdiction the law does not protect them.</p> <p>By express statutory provision (Laws of 1910, chap. 659, § 31) a city magistrate of the city of New York has not jurisdiction to try a defendant charged with the misdemeanor of cruelty to animals in violation of section 185 of the Penal Law where the defendant, upon being brought before him, interposes a plea of “Not guifty.”</p> <p>A complaint in an action for false imprisonment which alleges that plaintiff upon being brought before defendant, a city magistrate of the city of New York, upon a charge of cruelty to animals in violation of section 185 of the Penal Law, pleaded “ Not guilty;” that his examination was adjourned to a certain day on which he was tried, convicted as charged and sentenced to pay a fine and to be confined in the county jail for twenty days and that he was so confined three days, states a cause of action; and a motion by defendant for judgment on the pleadings will be denied.</p>

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

<p>Eminent domain — Condemnation proceedings — Necessity of including in proceedings all rights injuriously affected.</p> <p>Pleading — Complaint or declaration — Denials in answer — Demurrer to separate defense.</p> <p>Under section 1439 of the Greater New York charter, which provides that all leases and other contracts in regard to lands taken in condemnation proceedings shall cease, the mortgagee of lands acquired in such proceedings is entitled to that part of the award of damages to the owner which will liquidate the mortgage debt with interest at the legal rate from the time of the vesting of the title to the land in the city, though prior to that time by agreement between the owner and the mortgagee the rate of interest was reduced to four and one-half per cent, at which payments thereon were made and accepted.</p> <p>Where the legal conclusions arising from the allegations of a-complaint are met by denials in the answer and a demurrer to a separate defense is sustained, the plaintiff is entitled to judgment on the complaint with leave to defendant to serve an amended answer.</p>

<p>Action by a receiver in bankruptcy to recover money had and received by defendant to the use of the bankrupt.</p>

<p>Motion for award of costs, by defendant, on abatement of action.</p>

<p>Motion to set aside verdict because of misconduct of juror.</p>

<p>Motion by plaintiff for a new trial.'</p>

<p>Eminent domain — Condemnation proceedings—Award or report — Costs.</p> <p>Under a statute creating a special liability interest' is not recoverable unless provided for therein. '</p> <p>Where, in a proceeding under Laws of 1905, chap. 724,' as amended, relating to the acquisition of certain rights, etc., in the</p> <p>Ashokan reservoir territory, no real property of a telephone company was taken, an award for damages to its business does not carry interest, nor can the award include an allowance to the attorney for the company for costs and disbursements.</p>

<p>Master and servant — Actions ■— Questions for the jury — Defects in tools, appliances or places to work — Contributory negligence of servant.</p> <p>There may be two or more proximate causes of an accident if each can be said to have been an efficient one without which the injury would not have been sustained; the test is, whether the accident could have happened without the co-operation of these concurring causes. «</p> <p>In an action brought under the Employer’s Liability Act for personal injuries to an employee, plaintiff testified that on the day of the accident, to which there was no eye-witness; he was at work for defendants erecting “ door bucks ” on the seventh floor of a hotel in the course of construction; that jn using a step-ladder, one side of which consisting of three slats beneath the platform rested upon a steel beam forming one end of an air shaft, which was unguarded, to his knowledge, he ascended on the side of the ladder farthest from the hole and while nailing the bucks to the ceiling some lime or sand therefrom got in his eye and while rubbing it with his hand he pitched backward down the air shaft to the third floor. According to the testimony of other workmen who saw the ladder immediately after the accident, it did not appear to have been moved or disturbed. On granting a motion to set aside a verdict in plaintiff’s favor, held:</p> <p>That the unguarded shaft hole, while an efficient was not the sole proximate causé of the accident; that the dust in plaintiff’s eye, his fall from the ladder and the unguarded hole all contributed to the accident and were in their nature proximate causes.</p> <p>That the hole left temporarily unguarded during the construction of the building did not constitute negligence on the part of the defendants, it appearing that workmen on the day of the. accident were attaching metal lath to the beams forming the hole and at the time of the accident were installing conduits through the hole for which purpose it had been left.</p> <p>That under the provisions of the Employer’s Liability Act plaintiff was bound to show that' at the time of the accident he was free from any act which contributed to his injuries.</p> <p>That plaintiff, who from personal observation of the hole prior to the accident had described it with great particularity, knew that it was unguarded and must have known and appreciated all the dangers incident to his work and assumed the risk of his employment; and the verdict in that respect was contrary to the evidence..</p>

<p>Motion to vacate and set aside a'judgment entered upon a forfeited undertaking.</p>

<p>Demurrer to complaint.</p>

<p>Bankruptcy — Validity of transfers and preference by bankrupt and proceedings to annul such transfers — Eight of creditor to sue to set aside fraudulent conveyance — Proof and payment of claim — Eights of creditor who has obtained an invalid preference—Fraudulent conveyance.</p> <p>A composition agreement between a bankrupt firm and its creditors to be effectual must provide that every creditor who signs and agrees to accept the payment offered does so on condition that every other creditor shall do likewise.</p> <p>If one creditor receives more than another, or if he receives security which another does ■ not rfeceive, the composition agreement becomes fraudulent and whatever is unfairly acquired in excess of the other creditors may be recovered back by the injured creditors.</p> <p>Where, in an action by the. assignee of certain judgment creditors of a bankrupt firm to set aside as fraudulent a transfer to defendant, another creditor, of the equity that the bankrupts formerly owned in certain . ‘eal estate, it' is undisputed that defendant, a bank, in consideration of and prior to its signing a composition agreement, duly confirmed, in the bankruptcy proceedings, actually received an additional note for twenty-five per cent, more on its claim than did the other creditors and also accepted, as collateral security for the payment of said note and the notes received by it under the composition agreement, a conveyance of said real estate to a third person for defendant’s benefit, but the deed was withheld from record for about a month after its delivery, the plaintiff is entitled to judgment for the value of his property at' the time of its conveyance plus its rental value during the time it was held in trust for the defendant. *</p> <p>A claim of defendant, that as a consideration for the secret transactions with the bankrupts it surrendered to them their notes aggregating a sum in excess of the value of their equity in the real estate as shown by the testimony, is untenable, as defendant had included in its proof of claim in bankruptcy the liability of the bankrupts as indorsers of the surrendered notes.</p>

<p>Actiob for rent.</p>

<p>Justices of the peace — Jurisdiction — Trespass — Process — Liability of undertakings — In general.</p> <p>Pleading—-Complaint — Statement of cause of action in general — Defenses in general — Demurrer.</p> <p>Where, in an action brought in justice’s court for trespass on land, the defendant with his answer pleading title to the land by user delivers to the justice an undertaking, under section 2952 of the Code of Civil Procedure, that if the plaintiff within twenty days thereafter deposits with the justice a summons and complaint in a new action for the same cause, in the proper court, the defendant will within twenty days after the deposit of such summons and complaint give a written admission of service thereof, the defendant has all of the twenty days in which to give the written admission of service, that being' tantamount to personal service as of the day when the admission was given, and, from the date of an admission of service given within twenty days after the deposit, the defendant is entitled to twenty full days in which to answer.</p> <p>A complaint which sets forth facts constituting a cause of action and facts which constitute a valid defense thereto is demurrable.</p>

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

<p>Brokers — Compensation —■ “ When title is passed.”</p> <p>Where by a contract plaintiff, a real estate broker authorized to sell certain property for the defendant, was to be paid a commission by him “ when . the title is passed,” plaintiff is entitled to recover his commission though the purchaser procured by him rejects the title'as defective and unmarketable, as, upon the failure of the title to pass because of defendant’s inability to ponvey, plaintiff’s right to commissions became fixed.</p>

<p>Decision after verdict on question of law reserved by stipulation.</p>

<p>Action to recover the possession of land.</p>

<p>. Action to foreclose a building and loan association mortgage.</p>

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

<p>Mechanics’ liens — Nature of, and right to, lien in general — Foreclosure</p> <p>— Extent and nature of right in general — Pleading — Judgment</p> <p>— Parties and notice — Bringing in new parties.</p> <p>Pleading — Complaint — Demurrer in general — Grounds to demurrer to complaint — Defect of parties.</p> <p>Where real estate is conveyed just prior to the commencement of an action to foreclose a mechanic’s lien thereon, the grantor is a proper but not a necessary party defendant.</p> <p>Where a defect' of parties defendant appears upon the face of the complaint the remedy is by demurrer; otherwise it must be pleaded in the answer, and, in the absence of either, the defect is waived.</p> <p>An owner- of real estate was made a party defendant to an action, brought in the County Court to foreclose a mechanic’s lien thereon, commenced just before the conveyance of the property by her. It appeared that, upon a new trial after the reversal by the County Court of a judgment in plaintiff’s favor of a court not of record, in an action against said owner and a codefendant to fore- - close said lien, judgment was rendered in plaintiff’s favor against the codefendant only for the amount demanded in the complaint. It further appeared that said new trial-was granted on the ground that the trial court was without jurisdiction to grant a judgment of foreclosure and a sale of the real estate in question, and should have rendered a money judgment as in an action on contract for materials furnished and for work, labor and services. The grantee of the former owner pleaded judgment rendered on the new trial as a -bar to the present action to foreclose the lien. On granting a motion to dismiss the complaint, held:</p> <p>That the judgment rendered on the new trial, to the effect that plaintiff in that action had no claim whatever against the former owner of the premises, was an adjudication that she never made any agreement whatever with him or contracted with him for the materials furnished or for the work, labor and services claimed to have been rendered for her and was res ad judicata in the present action on the debt which was the basis of his lien.</p> <p>An action to foreclose a mechanic’s lien for materials furnished and for work, labor and services is- no bar to an action against the contractor or other party liable for the debt; both remedies may be pursued simultaneously, but the lienor can have but one satisfaction.</p>

<p>Actions to recover salaries.</p>

<p>Action for negligence.</p>

<p>Action upon a promissory note.</p>

<p>Action to recover a penalty.</p>

<p>Descent and distribution — Course of descent and distribution — In personalty.</p> <p>Trusts — Execution and administration of trusts — Nature of trustee’s title and establishment of estate — The beneficiary, his estate, rights and interest.</p> <p>A deed of trust of personal property, by which the settlor was "to receive the income for life, provided that if he was survived by a wife and children the trust fund should be divided among them in equal shares, but if he died leaving neither wife nor children, nor issue of deceased children him surviving, the income should be paid in equal shares to his brother .and mother during her life and upon her death the whole to his brother; but in case he was survived by his wife or brother, but not both, the income was to be paid to the survivor for life and upon the termination of the trust the principal of the trust fund was to be distributed among the settlor’s next of kin on his father’s side. In an action to cancel the deed of trust the mother of the settlor and his brother, who was unmarried and without children, consented in writing to the revocation-of the deed of trust' under section 23 of the Personal Property Law. Held:</p> <p>That a brother and a nephew of the plaintiff’s deceased father did not during plaintiff’s lifetime possess an estate in expectancy within the meaning of the statute (Real Property Law, § 59) which declares that an expectant estate is descendible, devisable and alienable in the same manner as an estate in possession; nor were they persons “ beneficially interested ” iii the trust estate within the meaning of section 23 of the Personal Property Law.</p>

Action to construe a will and to obtain directions to the testamentary trustee as to the payment of moneys to the plaintiff, as beneficiary.

<p>Wills — Disposal by will — Right of disposal and matters disposable by will — Interpretation and construction — Actions and proceedings to judicially construe will — Invalidity on face of will.</p> <p>Where material provisions of a will are illegal and cannot be separated from the rest without' defeating its general scheme the • whole will is void and the property must be disposed of as in case of intestacy.</p> <p>A testamentary provision, that testator’s entire estate, absolutely devised to a nephew by a previous clause of the will, shall only be disposed of in the name of the testator’s family, thus limiting the nephew’s interest to a life estate, will not be declared invalid so that the estate may pass to him under the absolute devise, as such a construction would disregard the testator’s wishes and defeat his plan, but both provisions must be construed together, the will declared void and the testator held to have died intestate except as to a legacy given by the will.</p>

<p>Appeal on questions of law from a judgment, rendered by a justice of the peace of the city of Utica, in favor of the plaintiff and against the defendant.</p>

<p>Appeal from a judgment of a justice of the peace rendered .in favor of the plaintiff in an action for money had and received.</p>

Appeal by defendant from a judgment for $105.61, damages and costs, in favor of plaintiff, rendered by a justice’s court in the town of Charlton, Saratoga county, R. Y., after a trial by jury. The appeal was hot for a new trial and was heard by the county judge of 'Schenectady county, the county judge of Saratoga county being disqualified.

<p>Appeal from a judgment of a justice of the peace rendered in favor of plaintiff.</p>

<p>Motion by tbe defendant for change of place of trial of Ihe indictment against him.</p>

Appeal by defendant from a judgment of the municipal court of the city of Rew York, borough of Manhattan, seventh district, rendered in favor of the plaintiff.

<p>Appeal by plaintiff from a judgment -of the Municipal Court of the city of Hew York, borough of Manhattan, seventh district, dismissing the complaint at the close of the plaintiff’s case.</p>

<p>Fires — Superintendent of buildings in the city of New York — Degree of care — Actions.</p> <p>The Supreme Court will take judicial notice that a loft building in the city of New York is among the buildings specified in section 103 of the building code which must be provided with means of egress in case of fire.</p> <p>The discretion vested in the superintendent of buildings in the city of New York under said section 103 to require such a building to be provided with certain specified fire exits cannot be interfered with by the court unless abused.</p>

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

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

<p>Interpleader — Right to interplead holders of particular claims — Actions — Parties.</p> <p>Where, in an action by the' assignee of one partner to recover a debt due to the firm, the other partner notifies the defendant not to pay the debt except to him and makes demand therefor, the defendant is entitled to an order of interpleader making the plaintiff’s assignor a party defendant.</p>

Appeal by the tenant from a final order in summary proceedings of the Municipal Court of the city of Hew York, borough of Manhattan, first district, awarding possession of the premises in question to the landlord.

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

Appeal by the defendant from a'judgment of the Municipal Court of the city of Hew York, borough of Manhattan, first district, rendered in favor of the plaintiff after a trial before the court with a jury.

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

Appeal by the defendant from a judgment of the Municipal Court of the city of Hew York, borough of-Manhattan, fifth district, rendered in favor of the plaintiff and from an order denying his motion to vacate and set aside a judgment rendered against Abraham Heymsfeld as defendant and granting the counter motion of the. plaintiff to amend the summons and other papers and judgment roll by substituting the Christian name “Adolph ” in place of “Abraham ” as the name of the…

Motion to -direct a witness t,o answer certain interrogatories under a subpoena issued under section 915 of the Code of Civil Procedure and a motion to1 vacate the subpoena.

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

<p>Civil service — Construction and operation of act and regulations thereunder — Certification of eligibles — Striking name from list of eligibles.</p> <p>Mandamus — Against public officers — Appointment or removal of public officers or employees — Procedure and relief — Reinstatement of officer or employee.</p> <p>In the absence of express prohibition in a city charter, its common council as án incident to its general powers has authority to employ special counsel if necessary to assist it in • the due performance of the duties imposed by law.,</p> <p>' Relator, while holding a position in the exempt class in the civil service of the city of Buffalo, was appointed by the commissioner of public works as chief clerk of the bureau of engineering, a position in the competitive class, at a time where there was no eligible list for the position, but, in an examination subsequently held, relator stood fourth on the list. The civil service commission, taking the ground that the appointment could only be made from the first three on the list, refused to certify relator’s payrolls for a year, and, in proceedings to test the legality of his transfer, the civil service commission was represented by the corporation counsel. In mandamus proceedings instituted by relator and the commissioner - of public works, orders were granted requiring the civil service commission to certify relator’s pay-roll and to reclassify the position, to which he had been transferred, in the exempt class. The action of the common council in directing the comptroller to draw and deliver to relator a warrant in his favor for the amount of a claim for services of counsel in the mandamus proceedings was approved by the mayor, but the comptroller refused to countersign and deliver it on the ground that the payment of the claim was prohibited by section 10 of article VIII of the State Constitution. On an application for a peremptory writ of mandamus 'directed to the comptroller requiring him to countersign and deliver said warrant, held, that the common council had authority to allow the claim and that relator was entitled to the relief for which he asked.</p>

<p>Military — In general — Armory employees.</p> <p>The appointment of an armorer under section 187 of the Military Law is invalid unless approved by the certificate of the major-general or commanding officer of the brigade within whose command the armory is located.</p>

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

<p>Motion in an action to foreclose a mechanic’s lien.</p>

Motion on behalf of defendant to vacate and. set aside the judgment herein, and for a new trial. .The opinion states the ease.

<p>Action by an executor to recover on two counts.</p>

<p>Action for partition.</p>

<p>Action in equity for set-off.</p>

<p>Specific performance — Subject matter of enforcement of contracts — Requisites of contracts — Contracts void . within Statute of Frauds — Actions — Persons who may be compelled to perform.</p> <p>In the absence of fraud or bad faith a contract between two corporations is not voidable because of the fact that the president' of one of them, though a director in both, in no way or manner acted as a director of the other corporation.</p> <p>Where the defendant, a corporation engaged in generating electricity and making gas for power and lighting purposes, with a complete knowledge of the situation entered into certain contracts with the plaintiff, a manufacturing corporation, to furnish electric current for the operation of its mills for five years, the fact that the president of the plaintiff was a director in both corporations does not render the contract voidable where it affirmatively appears that he did not vote upon the question of their execution and took no active part in reference thereto as a director of the defendant.</p> <p>Where defendant, upon ascertaining that by said contract it was held to inevitable and serious loss, made unsuccessful efforts to he released therefrom, and'plaintiff by notice availing itself of the option in the contracts elected to continue them for five years, and thereafter the defendant served notice that the power agreed to he furnished by it under said contracts would be shut off at a given date, a court of equity will withhold a decree for specific performancé to compel the defendant to continue to furnish plaintiff the electric current as agreed and will for a reasonable time restrain defendant from shutting it off and leave the plaintiff-to its right of action for damages for breach of contract, if any.</p>

<p>Tbial of a counterclaim pleaded,in an action to recover on promissory notes. The opinion states the casé.</p>

<p>Telegraph and telephone companies — Duty to serve public — Liability for failure to transmit telegrams or for delay or errors in transmission.</p> <p>Where - from a prepaid message reading: “Telegram and letter just received. Don’t want Alhambra April twenty-six. Letter follows,” the word “ don’t’’ was missing on delivery of the message, the telegraph company in the absence of explanation is chargeable with gross negligence and' is not. exempt from liability therefor by the restrictions and conditions printed on its blanks.</p>

<p>Action to construe a will and compel an" accounting.</p>

<p>Vagrants—Persons leading idle, disorderly and criminal lives, and procedure for their punishment.</p> <p>One who stands in the lobby of a theatre with Ms face painted, clothed as a woman and having'on a wig and slippers representing the “ White Slave,” is not a vagrant within the meaning of section 887 (7) of the Code of Criminal Procedure.</p>

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

<p>Contracts — Parties and persons by whom or against whom enforceable — Persons entitled to enforce contracts — Actions on contracts — Right of aggrieved party to réscind or abandon contract.</p> <p>Where a defendant by a wrongful act has prevented the happening of the contingency upon which the existence of a particular fund depends, his act is no defense to an action to recover money payable from the fund had it existed.</p> <p>A shipment of certain iron by plaintiff to a coaster company was to be made “ about two weeks ” after March 17, 1911. Defendant upon assuming the contract agreed with plaintiff to supply the iron at a price which would yield a profit to be paid to plaintiff by defendant upon its receipt of payments from the coaster company. Defendant by letter dated April 19, 1911, advised the coaster company of the assignment of the contract and that it expected to ship a part of the iron early the next week "and the balance in ten days. The coaster company by letter dated April 24, 1911, answered defendant’s letter assenting to its suggestions and request and on May 8, in response to a telephone inquiry, defendant wrote the coaster company that it would be unable to complete the shipment of the order until May 20. "On May 10, the attorney for the coaster company wrote defendant that .it could wait no longer and thereupon with the defendant’s assent .the contract was rescinded by the coaster company. In an action to recover the profit agreed to be paid plaintiff by defendant, held, that under the practical "construction by the parties, the “ about two weeks after March 17,” was extended to May 10, and that a judgment in defendant’s favor should be reversed.</p>

Appeal by defendants from a judgment of the City Court of the city of Mew York entered in favor of the plaintiff upon the verdict of a jury and also from an order denying a motion for a new trial.

<p>Appeal by the plaintiff from a judgment of the City! Court of the city of Xew York dismissing the complaint.</p>

Appeal-by the plaintiff from a judgment dismissing the complaint after a trial in the Municipal Court of the city of Yew York, borough of Manhattan, eighth district.

Appeal by defendant from a judgment of the City Court of the city of ¡New York rendered in favor of the plaintiff by direction of the court and also from an order denying a motion for a new trial.

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

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

Appeal .by defendant from a judgment of the Municipal Court of the city of Few York, -borough of Manhattan, first district, in favor of plaintiff for $519.39, after a trial by a judge without a jury.

Appeal by the plaintiffs from a judgment of the Municipal Court of the city of Hew .York, borough of Manhattan, third district, dismissing the complaint,_ and also from an order denying a motion for a new trial.

<p>Pleading — Matters relating to pleadings generally — Complaint or declaration — Answer.</p> <p>Appeal — Judgments and orders appealable — Orders relating to motions for new trial — When authorized.</p> <p>Where neither the complaint nor the answer in an action for rent alleged that' the plaintiff’s assignor, a foreign corporation, was doing business in this State, evidence offered by defendant, that the corporation was doing business at the time of the execution of the lease without having the certificate required by section 15 of the General Corporation Law, is properly excluded.</p> <p>An order granting defendant’s motion to set aside a verdict in plaintiff’s favor and for a new trial, on the ground that it was error to exclude defendant’s offer of proof, will be reversed.</p>

Appeal by the defendants from an order of the City Court of the city of ¡New York denying the motion of one of the defendants for judgment on the pleadings, .and sustaining plaintiff’s demurrers to the answers of the defendants.

<p>Appeal by the defendant from a judgment of the Municipal Court of the city of Few York, borough of Manhattan, ninth district.</p>

<p>Appeal by the defendants from a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, third district.</p>

Appeal by plaintiff from a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, fourth district, rendered1 in favor of the defendant dismissing the complaint.

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

Appeal by plaintiff from a judgment in favor of defendant rendered in the City Court of the city of blew York entered upon the dismissal of the complaint.