Volume 76 — New York Miscellaneous Reports

<p>Sales — warranties — breach of contract. , ,</p> <p>Where, by the terms of a written contract of sale of a gasoline engine, representations of the seller as to quality were to be determined by an actual test of the machine, the fact that the representations were called warranties in the contract does not make them such in the sense that the purchaser had' to rely upon and believe them; and the direction of a verdict in plaintiff’s favor, in an action to recover the purchase price, because of defendant’s failure to make proof of her belief in and reliance upon said representations, is ■ reversible error.</p>

<p>Pleading — matters relating to pleadings generally — complaint or declaration — demurrer — nature and office of demurrer — failure to state a cause of action.</p> <p>Where the complaint, in an action for damages for conspiracy to deprive plaintiffs, vaudeville actors, of their means of livelihood, alleges that defendant, a theatrical booking and employment agency, formed a combination and conspiracy with others to control the vaudeville booking business in the United States and Canada, and pursuant thereto agreed to prevent, by coercion, threats, intimidation and duress, the earning of a livelihood by acting in vaudeville unless all persons engaged in the same agreed to obey the rules and regulations of the combination; that during 1907-1910 defendants blacklisted and boycotted all vaudeville actors refusing to be bound by the mandate of the combination; that on January 21, 1907, plaintiffs, having refused to be bound by some of the conditions imposed by defendants, came into disrepute and ill-favor, whereupon defendants did illegally and maliciously place a ban against plaintiffs and their sketch, and prevented them from earning a livelihood; but in which complaint there is no allegation what the rules and regulations of the alleged combination were; what demands, conditions and limitations, defendants required plaintiffs to meet; that any rule made by the defendants, or any demand made upon plaintiffs, was not strictly lawful and proper, and not unreasonable; and that the plaintiffs had sought and been refused employment by reason of the alleged wrongful acts of the defendants; the complaint is demurrable on the ground that it does not state facts sufficient to constitute a cause of action.</p>

<p>Action to recover possession of stock.</p>

<p>Bill of particulars — when authorized — nonperformance of contract — • damages.</p> <p>Where, in an action upon a building contract, the pleadings show that each of the parties is' generally familiar with the claims of the other to such an extent that the defendant on the trial of the issues before a referee cannot be seriously surprised or embarrassed, defendant’s motion for a bill of -particulars will not be granted requiring plaintiff to furnish particulars with respect to' over forty different phases of the controversy.</p> <p>But where the contract provides that “ should the contractor he delayed in the prosecution or completion of the work by the act, neglect or default of the owners, of the architects, or of any other contractor employed by the owners upon the work * * * then the time herein fixed for the completion of the work shall be extended for a' period equivalent to the time lost by reason of any or all the causes' aforesaid, which extended period shall be determined and fixed by the architects; but no such allowance shall be made unless a claim therefor is presented in writing to the architects within forty-eight hours of the occurrence of such delay;” and the complaint, after alleging that plaintiff substantially performed the contract, alleges such delays as an excuse for nonperformance and the alleged delays are also included in plaintiff’s claim for damages, it .will be required to furnish a bill of particulars as to the same.</p>

<p>Motion for an injunction pendente lite.</p>

Application by the people of the state of Hew York to cancel an order of the county judge of Queens county directing the clerk of that county to enter the name of Joseph Somme in the “ Register of Physicians and Surgeons ” on •July 24, 1908, nunc pro tunc as of December 1, 1889. The aforementioned order was based upon the petition of Joseph Somme and the affidavits of two physicians.

Petition of Charles' P. Ratigan, who is the regularly designated candidate for the position of member of the Democratic state committee of the fortieth senatorial district, asking that the secretary of state be enjoined from certifying the candidacy of Charles H. Swarthout for such position.

<p>Election Law — nominations and preparation of official ballot — primary — certificate of nomination.</p> <p>The county committee of a political party cannot he destroyed, or have its powers taken from it, because of the conduct of some of its members prior to the organization of the committee.</p> <p>Under the present primary law, the Democratic state committee has no power over a regularly chosen county committee and may not substitute therefor a so-called provisional committee because the county convention which chose the county committee had, pursuant to a deal with -the Republican party or some of its candidates, refrained from nominating a candidate for member of assembly, and the suggestion is made that some members of the county committee, before it was chosen, had participated in the deal.</p> <p>The provisional committee, so-called, having no legal existence could. not question the legality of a meeting of the county committee at which designations of party candidates were made.</p> <p>Four members of the county committee having voluntarily withdrawn therefrom and associated themselves with the provisional committee, and worked with it in antagonism to the regular committee, the failure to give them notice, under the primary law, of a subsequent meeting afforded them no cause for complaint, it appearing that the other nine members had notice and that- eight attended the meeting at which the designations in question were made.</p>

Motion to have declared invalid, illegal and void the certificate of designation of certain candidates for the Independence League county committee of the county of Kings.

<p>Action to restrain defendant from charging thirty cents per thousand cubic feet for natural gas.</p>

<p>Highways — creation, requisites and incidents — establishment of highway by statutory proceedings — alteration arid extension — power' to extend existing street.</p> <p>The statute (section 200 of the Highway Law), requiring highways to be not less than three rods in width, does not apply to those laid out by the hoard of 'trustees of a village over land acquired hy purchase or condemnation.</p> <p>The board of trustees of a village, upon a proper petition and after a suitable notice and public hearing, may determine to lay out, alter, or widen a street over land acquired by purchase or' condemnation, without limit or restriction as to the width of the same.</p>

<p>State commission of highways — establishment of highway by statutory proceedings — power to establish highway — highways.</p> <p>The state commission .of .highways, in locating a route for a state road pursuant to section 120 of tile Highway 'Law, acts simply in an administrative capacity and may reach its ' deter.-' mination without giving a taxpayer notice of hearing or an opportunity to be heard.</p> <p>That the duties of the commission in locating the route call for the exercise of judgment and discretion does not make its action judicial in character, and certiorari does not lie to review it.</p>

<p>Abatement and revival—revival or continuation of suits — right of defendant or his representatives to have suit revived or continued — death of one of several plaintiffs or defendants.</p> <p>Joinder of causes of action — what causes of action may be joined — ' causes of action for personal injuries — tort.</p> <p>An order reviving an action, sounding in tort, against an executrix and substituting her as a party in the place of a deceased defendant, 'does not prejudice a motion for a severance of the action.</p> <p>While all engaged in the commission of a tort may properly be joined as .defendants in an action to recover damages resulting , therefrom, a separate action will lie against each tort feasor for the entire damage.</p> <p>The general’ rale of'the common law that'persona only ’severally liable fob the same injury could not "he ’joined'as defendants in an „ action for .damages-, except those liable, upon the .same written, instrument, was, no.t. changed by .section, 454,,of the,Code of Civil Procedure, providing that persons severally liable upon the sainé Written iinstnfment may be- joined' as defendants in an' action thereon.-- " . ’ ■ .</p> <p>Under-section 75S'of said Code, when one of several- defendants dies, and the entire cause of action survives against the- other defendants the plaintiff may proceed against them as the only parties liable, he can' apply-' for an order bringing in the executor of the 'deceásed ’defendant and continue the action against" him arid the "other (defendants and1 if the liability of'the Original defendants .. .was, joipt-;and several'-the plaintiff; may elect which course to pur- ... su.e, or the. court, the executor having been made a defendant,. m,ay order a severance of the action so that it may proceed ’ as two actions.</p> <p>Where aif" SStioti’TfdE'toils upon the death-of one .defendant, is revived against his executor, the plaintiff has the right to proceed against him and the other defendants unless the court, in the exercise of its discretion, severs the action in furtherance of justice.</p>

<p>Criminal law — offenses and grades thereof— statutory offenses — juris- ■ diction — habeas corpus — arrest of judgment.</p> <p>Where relator, who. was not a physician, pleaded guilty -in County Court to an indictment charging him with the unlawful possession of cocaine, a crime under section 1752 of the Penal Law and punishable by a sentence "of ten years in a state prison, but the statement of the acts alleged as constituting the qrime, to wit, that defendant on a certain day had cocaine in his possession with intent to s.ell same to divers persons unknown, without the written prescription of a duly licensed physician, shows an attempt to violate section 174.6 of said law punishable by imprisonment for a year, and a sentence to eleven months and twenty-nine days in a penitentiary is excessive and illegal, as the court was without jurisdiction to impose sentence under said section 1752 for an offense committed under 'section 1746.</p> <p>The relator, however-, is' not entitled to be released on habeas corpus, but will be remanded to the trial court for sentence as though no judgment had been entered on his plea of guilty; the court may then sentence him under section 1746, or may discharge him from custody upon a motion in, arrest of judgment.</p>

Action to recover for services rendered on express contract with second count on quantum meruit. On special verdict jury found that the contract was not to be performed within one year from the time it was made and that the value of the services rendered was $12,400.

<p>Action to recover balance due upon sale of land for unpaid taxes. The opinion states the case.</p>

<p>' Action to compel the specific performance of a lease. The opinion states the case.</p>

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

Appeal by the defendant 'Sheffield Barms-Slawson-. Decker Company from a judgment of the Municipal Court of the city of Mew York, borough of Brooklyn, in favor of the plaintiff, rendered on the 23d day of October, 1911.

<p>Appeal by the defendants from a judgment of the Mu- ' nicipal Court of the city of Hew York, borough of Brooklyn, second district, rendered in favor.of the plaintiff by the court without a jury.</p>

<p>Appear from a judgment of the Municipal Court of the city of FTew York, borough of Brooklyn, third district, rendered in favor of the' plaintiff for the sum of eighty-seven dollars damages and costs, and dismissing the counterclaim of the defendant.</p>

<p>Appeal' from a judgment for plaintiff entered upon a verdict directed by the Municipal Court of the city of Hew York, fourth district, borough of Queens.</p>

Appeal by the plaintiff from a judgment of the Municipal Court of the city of Mew York, borough of the Bronx, second district, dismissing the complaint.

<p>Brokers — rights and liabilities between broker and principal — compensation— failure to consummate bargain.</p> <p>Where a broker employed to procure a loan on or before a certain date does not establish that he procured the loan, or was prevented by his employer from so doing, before the expiration of the time limit, he is not entitled to recover his commission; that on the last day he had procured an agreement with a third person to make the loan is insufficient.</p>

<p>Money had and received — payment of interest on mortgage — presumption and burden of proof.</p> <p>Where a mortgagee is entitled to twenty days’ notice of the payment of his mortgage, and to interest during that time, and the mortgage is paid within the time limit, payment of the. interest for the twenty days in the absence of fraud, mistake or duress is voluntary, though made under protest, and may not be recovered back.</p>

<p>Divorce — reconciliation of parties — counsel fees — action on bond.</p> <p>Where, before the argument of an appeal from an order awarding alimony and counsel fees, the parties to the action become reconciled, the attorney for the wife, cannot maintain an action on the bond given,on such appeal to recover such counsel fees.</p>

<p>Appeal by plaintiff" from an order of the City Court of the city of Hew York denying his motion for a bill of particulars.</p>

Appeal by the defendant from an order of the City Court of the city of New York denying its motion for retaxation of costs.

<p>Appeal by defendant from an order granting the judgment-creditor’s motion to punish the judgment-debtor for contempt.for failing to appear for examination in supplementary proceedings, and fining her in the sum of $250, to be applied in paymént of the judgment.</p>

<p>Jurisdiction — nature of action as affecting jurisdiction — amount in controversy — jurisdiction of particular courts.</p> <p>Courts — City Court of city of New York — powers.</p> <p>While the City Court of the city of New York in actions to recover money has unlimited jurisdiction as to amount, judgment may be entered only up to the' sum of $2,000.</p> <p>In an action brought in said court upon a promissory note for $2,500, with interest, a partial defense, that the court has jurisdiction only up to $2,000, is premature.</p> <p>An objection that the court had not jurisdiction of the subject-matter cannot be waived.</p>

<p>Agricultural Law — action to recover a penalty — adulteration — what constitutes sale or offer for sale.</p> <p>Where, in an action to recover a penalty for a violation of section 240 of the Agricultural Law which provides that no person shall sell or offer for sale under the name of spirits of turpentine any article which is not wholly distilled from rosin, etc., unless the package containing the articles shall be marked “ adulterated spirits of turpentine,” the evidence is that the defendant at his store, on request, gave- to inspectors of the agricultural department samples which, though drawn from a barrel marked “ spirits of turpentine,” were adulterated, a judgment against the defendant will be reversed in the absence of proof that defendant offered adulterated turpentine for sale except in properly marked bottles.</p> <p>G-uy, J., dissents.</p>

Appeal by the defendant in each action from a judgment of the 'City O-ourt of the city of New York entered upon a verdict rendered in favor of the plaintiff and from an order denying a motion for a new trial.

<p>Landlord and tenant — lease and agreements in general — rights, duties and liabilities in regard to premises — possession, enjoyment and use — eviction.</p> <p>Where a private dwelling apartment has a general hot water system supplied from the basement and under the lessor’s control, a covenant to supply such hot water as would ordinarily beofurnished in a small private house will be implied in a lease of the top'floor.</p>

Appeal by the defendant from a judgment of the City Court of the city of ¡New York entered upon a verdict rendered -in favor of the plaintiff by direction of the court after both parties had moved for the direction of a verdict.

<p>Appeal by defendant from a judgment in favor of plaintiff rendered in the City Court of the city of Hew York; and from an order denying defendant’s motion for a new trial.</p>

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

<p>Contracts — validity of contracts — interpretation of contracts — particular agreements — continuing contract to manufacture and furnish goods.</p> <p>In an action for goods sold and delivered, consisting of certain new parts for defendant’s automobile, the answer, by failure to deny the allegation that plaintiff delivered to defendant certain goods, wares and merchandise, admits the authority of defendant’s chauffeur who brought the machine to plaintiff’s shop and asked that the repairs be made.</p> <p>The fact that defendant permitted the repairs to be made coupled with said admission rendered him liable for the value of the repairs on an implied promise.</p>

<p>Contracts — interpretation of contracts — particular agreements — continuing contract to manufacture and furnish goods.</p> <p>Where,- under a contract for the sale of certain cartons, aggregating many thousands, to he delivered and paid for as taken, the seller agreed to make complete delivery at a certain price per thousand F. O. B. at its plant and to pay for packing, it cannot recover for special packing and incidental expenses connected with shipping, on the buyer’s orders, cartons to various parts of the United States in individual small packages.</p> <p>A subsequent promise by the buyer to adjust the charges for extra packing was without consideration.</p>

Appeal by the defendant from an order of the Municipal Court of the city of ISTew York, borough of Manhattan, sixth district, setting aside a judgment rendered in favor of the defendant and ordering a new trial.

<p>Landlord and tenant — leases and agreements in general — rights, duties „ and liabilities in regard to premises — eviction.</p> <p>An oral agreement, made prior to the execution of a written lease of two rooms in an office building, to permit the tenant to use his former adjoining office as an entrance, is merged in the lease, and a breach of said agreement does not constitute an eviction. Evidence, however, of the making of said agreement is material upon the question whether the tenant got full possession until he was given the key to the rooms several months after the execution of the lease.</p> <p>Though the landlord was within his rights in depriving- the tenant of the use of his former office as an entrance, it was his duty when he did to furnish the tenant with a lcey to the other two rooms, as until then his possession was dependent upon his right of access to his former office.</p> <p>An arrangement with the then tenant of one of the leased rooms, made with the knowledge and consent of the landlord, to continue as a subtenant and to retain the key previously - given tó him by the landlord, did not make the subtenant the tenant’s agent so as to make his possession of the key the tenant’s possession; but the landlord was chargeable with notice that in order to enjoy the beneficial use of the rooms it was necessary for the tenant to have an additional key.</p> <p>The landlord’s arbitrary refusal to furnish the tenant with an additional key to his rooms amounted, in law, to an eviction.</p> <p>The legal effect of a partial eviction by an arbitrary and wilful interference with a tenant’s right of ingress and egress is to suspend the rent during the period of such eviction.</p>

Appeal by defendant from a judgment in favor of plaintiff, entered in the Municipal Court of the city of Rew York, borough of the Bronx, second district, after trial by a judge without a jury.

<p>Appeal by the plaintiff from a judgment of the City Court of the city of New York, dismissing the complaint at the trial for insufficiency and from an order of the said court denying a motion for a new trial on a rehearing of said motion of defendant to dismiss the complaint.</p>

<p>Landlord and tenant — leases and agreements in general — rights, duties and liabilities in regard to premises — eviction — rent and advances —■ failure of landlord to supply heat, light and power.</p> <p>Where each of several apartments of a building is leased as a private dwelling, and there is no way of heating or of obtaining hot water, except by means of a plant under the exclusive control of the landlord, he is bound to furnish sufficient heat and hot water, and a covenant to that effect will be read into the lease.</p> <p>Whether the defendant’s evidence, in an action for rent of one of said apartments, is sufficient to establish a constructive eviction, because there had been a lack óf sufficient steam heat to render the rooms habitable and an entire absence of hot water, is a question for the jury.</p>

<p>Insurance — requisites and validity of contract — actions on policies — pleading — sufficiency of answer.</p> <p>An allegation of the answer in an action to recover on a'policy of burglary insurance that the insured attempted to cheat and defraud the company, if established by competent proof, is a defense. \</p> <p>Plaintiff’s, allegation of due performance on bis part cannot be considered as a plea of nonviolation of any of the prohibitory clauses of the policy.</p>

Appeax by the defendant from an order of the City Court ,of the city of blew York granting the plaintiff’s motion for a bill of particulars of defendant’s counterclaim.

<p>Appeal from an order of the City- Court of the city of ¡New York denying a motion to vacate an order for the examination before trial of the defendant Hill.</p>

<p>Depositions — depositions to be used in other states — actions in foreign countries.</p> <p>Motions and orders — motion papers — service of papers with notice—orders — settling order — order on default.</p> <p>Under the rule of court that, if a motion is not opposed, the moving party on proof of due service of the motion papers shall be entitled to the order or judgment asked for unless the court shall otherwise direct, the court may refuse to vacate and set aside an order for the examination of defendant before trial, because plaintiff happened to be late at the call of the calendar, and deny defendant’s motion to resettle said order so as to show a default on the part of plaintiff.</p> <p>In an action to recover the amount of a loan sent to defendant at Paris at her request, the plaintiff is entitled to an examination qf defendant before trial to prove that letters and telegrams were sent by defendant to plaintiff and that money was received by her.</p>

<p>Equity — laches and acquiescence—'What constitutes.</p> <p>Affidavits— who may make — party to action — excuse for failure of party to make.</p> <p>Laches is shown where for nearly four years after issue joined plaintiff did nothing to bring a cause to trial, and, on defendant’s motion to dismiss for failure to prosecute, the burden is on plaintiff to show that her failure to prosecute was not unreasonable.</p> <p>An affidavit by plaintiff showing that for more than a year last past- she had resided in a far western state does not suffice to excuse her failure to prosecute during the preceding three years, or for failure to take her testimony if material.</p>

Appeal by the defendant from an order of the Oity Court of the city of Hew York denying defendant’s motion for judgment on the pYadings.

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

Appeal by defendant from a judgment in favor of plaintiffs for $48-9.55 and 'dismissing the defendant’s counterclaim, entered in the Municipal Court of the city of Few York, borough of .Manhattan, fifth district, after trial by a judge without a jury.

<p>Appeal by plaintiff from an order of the City Court of the city of ¡New York, vacating a judgment in favor of plaintiff.</p>

<p>Evidence — burden of proof — general principles — weight and sufficiency — judgments.</p> <p>. Where the testimony of plaintiff, upon whom rests the burden of proof, is flatly contradicted and there is no evidence to corroborate such testimony, no rule of law requires that defendant shall have judgment.</p>

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

Appeal by plaintiff from a judgment of the City Court of the city of Rew York, dismissing the plaintiffs complaint at the close of his case.

Appeal by the defendant from' a judgment of the City Court of the city of .¡New York, entered on a verdict rendered in favor of the' plaintiff, and from an order denying a motion for a new trial.

<p>Appeal from a judgment of the Municipal Court of Dun* kirk rendered in favor of plaintiff.</p>

<p>Wills — the testamentary instrument or act — joint or mutual, nuncupative or foreign wills — joint or mutual wills — validity, operation and legal effect — partition — Statute of Frauds.</p> <p>The will of a widow made pursuant to an oral agreement with her bachelor brother for the execution of mutual wills is revoked' by her subsequent marriage.</p> <p>Under the will of a bachelor executed pursuant to an oral agreement for mutual wills, his sister, a widow, took his entire estate. Under her will he took a life estate in her realty and the use of a portion of her personalty with a proviso that in case of his death before a sister she was to have the use of the entire estate for life with remainder to her children. Upon the petition of the widow said brother’s will was admitted to probate and she received the entire estate. Upon her death, she having in the meantime remarried, letters of administration were issued to her husband • without notice to the legatees named in the will executed by her pursuant to said oral agreement. Upon a complaint alleging that she had died intestate, her heirs at law brought an action for the partition of her real estate against those claiming under her said will who sought to impress on said real estate the provisions thereof by reason of said oral agreement.</p> <p>Held: That by the remarriage of the widow her will executed pursuant to said oral agreement was revoked and that said agreement did not survive the Statute of Frauds.</p> <p>That said remarriage furnishes no basis for equitable relief as asked for and the pla-intiiTs are entitled to judgment.</p>

<p>. Appeal by-plaintiff from a judgment rendered by a justice of the peace.</p>

<p>Application to revoke and cancel a liquor tax certificate.</p>

<p>Military Law — retirement of officer who has reached the age limit — mandamus.</p> <p>By virtue of the mandatory provision of section 82 of the Military Law, as amended in 1911, any officer of the active militia who has reached the age of sixty-four years must be placed on the retired list by the governor.</p> <p>The retirement of a commissioned officer in the active militia pursuant to the mandate of said section is not a removal from office nor an infringement of his constitutional rights, and he is- not entitled to á peremptory writ of mandamus to compel the military authorities of the state to recognize him as an officer on the active list of the National Guard.</p>

Proceeding under sections 39 and 56 of the Election Law to review the election of a member of the Republican county committee in the first election district of the eighth ward of the'city of Lockport, on the 26th day of March, 1912.

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

<p>Attorney and client — the relation with the client — lien — right to lien — nature of services rendered as affecting right to lien.</p> <p>An attorney employed by plaintiff, after the entry of a final judgment establishing his rights to certain land as against the town, to prosecute an appeal from said judgment taken on the claim that plaintiff was entitled to more land, and such claim fails but the judgment as rendered is affirmed, is not entitled tó a lien under section 475 of the Judiciary Law.</p>

<p>Evidence — res ipsa loquitur — master and servant.</p> <p>Master and servant — master’s liability for injuries to servant — tools, machinery, appliances and places to work — negligence in use of tools, appliances or places furnished by master.</p> <p>The rule of res ipsa loquitur applied to master and servant action.</p> <p>Where from the evidence given in an' action brought under the employer’s liability provisions of the Labor Law, as amended in 1910, the jury might have found that, while plaintiff, employed by defendant, was leaning over an opening in an upper floor for the purpose of lowering a bundle of bolts, a timber fell upon him from behind knocking' him through the opening, and that he fell to the first floor and was instantly killed, and there is no evidence tending to show when or by whom the timber had been placed in the position from which it fell, nor what caused it to fall, the rule of res ipsa loquitur applies, as the jury might have inferred from the evidence that had proper care been exercised by those for whose negligence the master is -responsible under the Labor Law the accident would not have happened.</p>

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

Taxpayers’ actions brought to enjoin the public service commission of the first district and the city of ¡New York from entering into proposed contracts for new subways.

<p>Proceeding to condemn property of a ferry company.</p>

<p>Action to determine title to a bond and mortgage.</p>

<p>Action on a surety company bond. The opinion states the case.</p>

Motion to enjoin plaintiff and the sheriff of New York county from selling real property under -execution issued on deficiency judgment. The material facts are stated in the opinion.

<p>Contracts — performance of contracts — time and mode of testing performance— actions on contracts.</p> <p>A letter and an agreement referring to the same subject-matter and signed at the same time, must be read together in determining the contract.</p> <p>Where the time of performance of the contract was conditioned Upon notice which was not given,- an action on the contract is ' prematurely brought.</p>

<p>Pboceediitg upon the prohate of a will. •</p>

<p>Appeal by defendant from an order of the City Court of the city of Hew York.</p>

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

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

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

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

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

<p>Landlord and tenant — re-entry and recovery of possession by landlord— summary proceedings — default and payment of rent (Code Civ. Pro. .§ 2231, subd. 3).</p> <p>In summary proceedings for non-payment of rent, a final order in favor of the landlord is res adjudieata that the tenants continued in possession of the premises and defaulted in the payment of rent reserved; and in a subsequent action to recover the rent defendants will- not be permitted to plead a partial eviction.</p>

Appeal by defendant from a judgment entered upon the verdict of a jury directed in favor of the plaintiff in the Municipal Court of the city of Hew York, borough of Manhattan, fifth district. Defendant also appeals from an order denying his motion for a new trial.

<p>. Appeal by plaintiff, from a judgment in favor of the defendant rendered, in the City ‘Court of the city of New York.</p>

<p>Appeal by plaintiffs from a judgment in favor of the defendant rendered in the City Court of the city of Hew York.</p>

<p>Appeal by plaintiff from a judgment of the City.Court of the city of New York.</p>

Appeal by defendants from a judgment of the City Court of the city of Hew York entered on the report of a referee in favor of the plaintiff and against the defendants.

Appeal by the tenant from a final order in summary proceedings entered in favor of the landlord in the Municipal Court of the city of Hew York, borough of Manhattan, seventh district.

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

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

Appeal by the defendant from a judgment of the City Court, of the city of Hew York in favor of plaintiff, entered upon a verdiot directed by the court.

Appeal by the defendant from an order of the Municipal Court of the city of New York, borough of Manhattan, seventh district, setting aside a. verdict of a jury rendered in favor of the defendant and ordering a new trial.

Appeal by the plaintiff from a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, ninth district, rendered in favor of the plaintiff for one cent damagés ¡and costs.

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

<p>Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, entered upon the verdict of a jury in favor of defendant.</p>

<p>Appeal by the plaintiff from a judgment of the Municipal dourt of the city of Hew York, borough of Manhattan, second district, dismissing the complaint on the ground that the action had 'abated by reason of the plaintiff’s death.</p>

Appeal by plaintiff from a judgment of the Oity Court of the city of Hew York rendered after a trial without a jury, dismissing the complaint on the merits.

<p>Appeal by plaintiff from a judgment of the City 'Court of the city of Rew York, dismissing the complaint at the close of the plaintiff’s case.</p>

<p>Contracts—Validity of contracts — performance of contracts — sufficiency of performance in general — covenant to transfer stock.</p> <p>Where an agreement for the sale of corporate stock for a certain sum payable in weekly installments provided that when they should aggregate a stated amount a certain number of shares of the stock were to be transferred to the buyer, the remainder when the full amount was paid, and, further, that during the continuance of the agreement and until there should be a default for five days the stock should be indorsed in blank and delivered in escrow to one who should hold the same in accordance with said agreement, the buyer to have no power or authority to vote the stock or exercise any of the rights of a stockholder, the agreement is one for the sale of stock within the meaning of section 270 of the Tax Law, as amended.</p> <p>Upon the indorsement of the stock in blank and its delivery in escrow the tax thereon became immediately due and payable by the seller; and he having failed to affix the stamps required by law defendant was at liberty to plead the fact as a defense in an action to recover an installment under said agreement.</p>

Appeal by the defendant from a judgment of the Municipal Court of the city of Few York, borough of Manhattan, second district, entered in favor of the plaintiff upon the verdict of a jury.

<p>Sales — transition of title — delivery — acceptance — time for acceptance— lien — evidence in general.</p> <p>Where plaintiff, upon the receipt of an order on a cold storage company for certain horseradish which he had purchased, was told that he might get it at .any time, and after six months' the storage company refused to deliver the horseradish, claiming a lien thereon for storage charges on other goods stored by the vendor, plaintiff has no cause of action against the one who made the sale to him, as plaintiff’s receipt of the order constituted a valid acceptance and delivery of the goods which he should have obtained within a reasonable time.</p>

Appeal by the landlord from a final order in summary proceedings entered upon a verdict of a jury rendered in favor of the tenant in the Municipal Court of the city of Hew York, borough of Manhattan, second district.

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

Appeal by defendants from a judgment of the Municipal Court of tlic city of Mew York, borough of Manhattan, sixth district, rendered in favor of the plaintiffs, after a trial be- . fore the court without a jury.

Appeal by the defendants from a judgment of the Municipal Court of the city of Mew York, borough of Manhattan, third district, entered upon a verdict of a jury rendered in favor of the plaintiff by direction of the court.

Appeal by the defendant from a judgment of the City Court of the city óf hfew York entered in favor of the plaintiff upon the verdict of a jury.

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

<p>Appeal by the defendant from a judgment of' the City Court of the city of Hew York entered in favor of the plaintiff after a trial by the court without a jury.</p>

<p>Appeal by the defendant from a judgment of the City Court of the city of Hew York, entered upon,a verdict rendered in favor of the plaintiff and from an order denying a motion for a new trial. • 1</p>

<p>Appeal' by the defendant from a judgment of ‘the Oity Court of the city of Hew York, entered upon a verdict rendered in favor of the plaintiff by direction of the court and from an order denying a motion for a new trial.</p>

<p>Appeal by the plaintiff from a judgment of the City Court of the city of New Turk dismissing the complaint.</p>

<p>Contracts — action on contracts — interpretation of contracts — time of performance — in general.</p> <p>Where the evidence in an action upon an agreement, in form for the reassignment of a mortgage, presents a question of fact whether it was merely for the repayment of money by defendant so that his agreement to pay an additional sum in consideration of an extension of time would make the contract usurious as a payment for forbearance to collect money due, a judgment entered on a verdict in plaintiffs’ favor by direction of the court will be reversed.</p>

Appeal by the plaintiff from a judgment of the City Court of the. city of ¡New York entered in its favor upon the verdict of a' jury.

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.

<p>Principal and agent — the relation between the parties — rights and liabilities of agent as to third person — undisclosed principal. " - Where work is done under an agreement with a known agent solely on his credit, no recovery can be had therefor against the undisclosed principal. •</p> <p>Where, by a contract with an agent, work is done for his principal, an agreement to pay the agent a certain percentage on tlie agreed price renders vpid the entire transaction.</p> <p>. Where a transaction is susceptible of both a. legal and an illegal construction, it will be presumed that the parties intended to - act legally.</p>

<p>Contracts — interpretation of contracts — construction by act of parties or construction agreed upon — time of performance.</p> <p>A contract should be construed so as to give effect to all its terms.</p> <p>Where by the terms of a contract, not subject to cancellation, for the display by plaintiff of an advertisement on a theatre curtain for such time as the theatre should be open in certain years, credit was to be given defendant for each entire week the advertisement was not shown, plaintiff was obligated to display said advertisement when the theatre was open during the time specified in the contract and was entitled to recover for the display of' the advertisement after defendant had directed its discontinuance.</p> <p>Lehman, J,. dissents.</p>

<p>Inns and innkeepers — in general — lodging-house keeper — loss of and injury to property of guest.</p> <p>A lodging-house keeper, in respect to the goods of a roomer, is only liable for a failure to exercise such care as a reasonably prudent person would exercise over his own property.</p>

<p>Landlord and tenant — termination of relation — assigning or subletting— leases ánd agreements in general — right of tenant to ' assign in general.</p> <p>Where a landlord actually accepts an assignee as a new and sub-, stituted tenant, the surrender of the lease by the former tenant takes place by operation of law,-</p> <p>A tenant’s surrender of his lease and the landlord’s acceptance thereof make a sufficient mutual consideration to terminate the tenancy.</p> <p>To constitute an acceptance of an assignee as a tenant some act of the landlord must be shown which is inconsistent with the con.tinued liability of the former tenant, and the continued existence of any estate or interest in the lease to him.</p> <p>Where the assignee of a lease merely enters into the premises and the landlord accepts the rent from him but gives him no new lease, and the assignee in no way validly assumes the ■ obligations of the old lease, there is no surrender and acceptance thereof and no execution of a previous promise to accept the assignee as tenant in place of the original tenant.</p>

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

Appeal by the defendant Finkelstein from a judgment of the City Court of the city of Hew York in favor of the plaintiff and against said defendant, and from an order denying a motion for a new trial.

<p>Landlord and tenant — termination of relation — surrender and acceptance— leases and agreements in general — requisites and validity.</p> <p>Where an' agreement recites that it is understood that one of the parties thereto leases of "the other certain premises for a given period at a stated rent payable monthly in advance, and also acknowledges the receipt of the first month’s rent, it is a valid* and binding contract, though in terms subject to the terms of a lease, to be executed later, which the proposed tenant, objecting to some of the covenants, refused to sign and thereupon went into possession of the premises.</p> <p>Where the landlord accepted a surrender by accepting the keys from defendant, and refused to make any arrangement with the sub-tenant until defendant had entirely quit the premises, and then accepted rent from the sub-tenant, such acts were inconsistent with an estate outstanding in defendant.</p>

Appeal by the plaintiff from a judgment of the Municipal Court of the city of Rew York, borough of Manhattan, first-district, entered upon a verdict rendered in favor of the defendant, William Boyce, Jr.

<p>. Appeal by defendant from a judgment in favor of the plaintiff rendered by the Municipal Court of the city of Mew York, borough of Brooklyn.</p>

<p>Fraternal and mutual benefit associations — suspension or expulsion of member — proceedings to compel reinstatement.</p> <p>During the third quarter of the year for which plaintiff was employed as physician to a fraternal organization he was removed, after a trial by a committee of another lodge, on charges of dereliction of duty, but on appeal the decision was reversed. At the close of a trial, on a claim for wages assigned in the meantime by plaintiff, defendant was given judgment on the merits after a motion to dismiss the complaint on the ground that the action was barred by the decision of thé trial committee, and on appeal said judgment was affirmed On the reversal of the decision of said committee, plaintiff obtained a peremptory writ of mandamus compelling defendant to nullify its decision removing plaintiff. Held, that his removal was null and void and that he was physician of the lodge during the full term of his employment, and in an action for a quarter’s salary it was error to direct a verdict on the ground that the judgment in the former suit for salary was a bar.</p>

Appeal by the defendant from a judgment for $500 and costs in an action to recover rent for premises occupied as a corporation yard in Long Island City. .Defendant denies occupancy; claims surrender before the expiration of the lease which the city claims was October 1, 1906. Rent sued for is October, 1906, to October, 1907.

<p>Evidence — oral evidence — admissions — landlord and tenant.</p> <p>In an action for damages for failure to put plaintiff in possession of a roof leased for advertising purposes, oral evidence that the lease was delivered conditionally and was not to become effective if a tenant then in possession of the premises had a lease covering the same period is inadmissible.</p>

<p>Insurance — insurable interest — actions on policies — assignee of policy — administrator or executor of insured.</p> <p>.Where, in an administrator’s action to recover upon a policy on the life of his intestate, the testimony of an impleaded defendant as. to an assignment of the policy to him could have been excluded as incompetent under section 829 of the Code of Civil Procedure, and where there is corroborative evidence consistent with the theory that such policy was deposited with him as security for an indebtedness and further payment of premiums, and it also appears that the intestate on his death-bed believed that he still owned the policy, justice requires the reversal of a judgment in favor of the impleaded defendant, so that the plaintiff may recover the amount of the policy, the impleaded defendant present any proper claim, and the administrator pay the undertaker’s bill.</p>

<p>Accord and satisfaction — who may make — checks and drafts — acceptance of sum in gross.</p> <p>Payments — payment as an issue — recovery back of excessive payments.</p> <p>In the absence- of explanation, the receipt and the deposit of voucher checks reciting that the payments- were “ in full- ” .constitute an accord and satisfaction, though the words “ in full ” had been scratched out.</p>

<p>Motions and orders — in general — motion papers — affidavit — Municipal Court of city of New York.</p> <p>Where a defendant in the Municipal Court of the city of New York, on motion for a commission, makes out a prima faoie case, and there are no affidavits in opposition, an order denying the motion without stating the grounds therefor will be reversed.</p>

<p>Insane persons — compensation of committee — accounting by committee— Code Civ. Pro. § 2341.</p> <p>The committee of the person and property of an incompetent has no right to commissions upon the corpus of the estate until they are awarded to him on the judicial settlement of his accounts.</p> <p>Where, upon the annual accounting of the committee of the person and property of an incompetent as required by section 2341 of the Code of Civil Procedure, an order was made disallowing an item showing that he had deducted an amount claimed to represent commissions for “ receiving ” the corpus of the estate estimated at what one-half of the full commission for “ receiving and disbursing” the entire estate would have amounted to, and said deducted amount was returned to the estate, the petition of the committee .on his next annual accounting that he be allowed' to deduct one-half commissions for receiving the corpus of the estate must be denied.</p>

<p>Action on an order drawn for the payment of money under a building contract.</p>

Action to recover a balance alleged to be due plaintiff for, commissions upon the sale of. real property under the provisions of an agreement in writing between them. •

<p>Master and servant — master’s liability for injuries to servant — tools, machinery, appliances and places to work — duty to furnish appliances to protect servant from negligence of fellow servant — actions:—burden of proof — Labor Law, § 202a.</p> <p>The legislative intent in adding the word “plant” to section 200(1) of the Labor Law of 1910 was to make said section apply to defects in each and every appliance used by an employer in his business.</p> <p>Under said section 200(1), providing that if an employee while in the exercise of due care and diligence is injured by reason of any defect in the condition of the ways, works, machinery, or plant connected with or used in the business of the employer, an employee injured by defective chain tongs used on a pipe machine at which he was at work is entitled to recover, the chain tongs being a part of the “ plant,” within the meaning of the statute.</p> <p>In the employee’s action the negligence of a fellow servant in the performance of a duty intrusted to him of seeing that any part of the “ ways, works, machinery, or plant ” is . in proper condition, is imputable to the employer.</p> <p>Whether in such action the employer was chargeable with negligence in failing to remedy the defect in the chain tongs is a question for the jury.</p> <p>The rule of the common law that a servant continuing to use appliances with knowledge of their defective condition must be held as matter of law to have assumedj the risk of injury was abrogated by section 202 of the Labor Law as amended in 1910 which provides that such a continuance in service shall not constitute an assumption of risk of injury, but that the employee or his legal representative shall not be entitled to compensation or remedy where with knowledge of the risk he failed within a reasonable time ■ to give information thereof to the employer, or to some person in authority, unless it appears on the trial that the defects could have been discovered with reasonable and proper care.</p> <p>Where plaintiff in order to tighten a slack belt placed his hand, thereon and as the machine started the chain on the chain tongs broke and his hand slipped behind the- belt and was caught, he could not be charged with contributory negligence as matter of law.</p> <p>The action having been brought under section 202a of the Labor Law, the burden of proof was on defendant to show that plaintiff was chargeable with contributory negligence in not hunting up other and more suitable chain tongs.</p> <p>Where, at the time of the injury, plaintiff was earning $850 a year, a verdict of $12,500 for the loss of the use of his right arm is somewhat excessive and will be reduced to $10,000.</p>

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

<p>Action for the construction of a will.</p> <p>0. S. Mereness, for plaintiff.</p>

<p>Application for a determination under, section 125 of the Election Law.</p>

<p>Negotiable instruments — actions — pleading — demurrer —as to consideration.</p> <p>A complaint against the maker of a non-negotiable promissory note which merely alleges that defendant’s promise to pay was made for a valuable consideration, hut alleges nothing further as to the consideration, is demurrable on the ground that it does not state facts sufficient to constitute a cause of action.</p>

<p>Fraudulent conveyance — what constitutes — who may attack — operation and effect of fraudulent conveyance.</p> <p>Defendant, the owner of certain real estate, his only property, purchased of plaintiff a stock of goods for which he was unable to" pay, but did not take possession of them. Thereafter he mortgaged his real estate to secure a present loan. His wife joined in the mortgage and about two weeks later received a conveyance of said real estate by mail with knowledge that plaintiff was making demands for payment of the balance due on the purchase price of the stock of goods, and was threatening suit.</p> <p>In an action to set aside the conveyance, held, that a finding of the jury that said conveyance was made by defendant with intent to defraud plaintiff, his creditor, should be approved; also, that a finding that the wife received the conveyance without any intent on her part to defraud plaintiff .should be set aside, it clearly appearing from the evidence that she had actual knowledge of her husband’s fraudulent intent in making such conveyance.</p>

<p>Insurance — requisites and validity of contract — assignment or transfer of policy — effect of assignment by one holding policy charged with trust in favor of third person — right to surrender as against beneficiary.</p> <p>Trusts execution and administration of trusts — creation and declaration—proceeds of insurance.</p> <p>An ordinary policy of life insurance, as a subject of assignment, is a non-negotiable chose in action.</p> <p>While policies of insurance upon the life of S. were in force, he executed a trust deed which specified how plaintiff, as trustee, should apply the proceeds of such insurance, provided the trust be revoked, modified or changed by S. and that in his discretion he might cause the beneficiary in any or all the policies to be changed at any time during his life, and recited that he had caused said policies to be made payable to plaintiff as trustee, with authority on the death of S. to collect and receipt for the proceeds of the policies. After having, from time to time, exercised his right of revocation and modification of the trust deed, S. executed a written instrument by which, after reciting that he had caused all of the policies to be transferred to plaintiff, individually, instead of as trustee, and having absolutely assigned to him all the right, title and interest of 8. in said policies, plaintiff having, for value received, agreed that the proceeds of said policies should be charged with the same trust and used as provided in the trust deed and the modifications thereof, S. ratified said transfers and assignments and for value received of plaintiff, as trustee, surrendered and annulled his right to revoke, modify or change the trust agreement and the modifications thereof, and consented and agreed with plaintiff that the transfers to him for the purposes aforesaid be made absolute, irrevocable and unchangeable forever. The deed and assignments were delivered, the trustee accepted the trust and the insurance companies,' in recognition of his title, paid the amount due on the several policies to him.</p> <p>Held: That the trust was valid.</p> <p>That, until the execution of the above-mentioned written instrument, plaintiff, as trustee, had a present title, and the beneficiary named in each policy had a vested interest therein subject to be divested by the exercise of S.’s power of revocation.</p> <p>That, upon the execution and delivery of the assignments of the policies to plaintiff, the indorsement of the name of the beneficiary on the policies and the execution and delivery of the written instrument in which S.’s power of revocation was surrendered and renounced, a vested interest and present title during the life of S. passed to plaintiff.</p> <p>The fact that, after the surrender of the right of revocation had been included in the written instrument, there remained in each of said policies a recital of the power to change the beneficiary did not invalidate the trust.</p> <p>That in making the trust deed and the transfers of the insurance policies S. did not purpose or intend to avoid the Statute of Wills, but simply attempted to direct what use should be made of the proceeds of said policies after his death. •</p>

Taxpayers’ action to restrain defendants froin closing a part of Dearborn street in connection with the elimination of the grade crossing at Niagara street in the city of Buffalo.

Action to vacate an. assessment, etc., for the expense of building a sidewalk in front of premises occupied by plaintiff. •

<p>Action for divorce.</p>

<p>Foreclosure of mortgages — by action and sale — right to foreclose — estoppel when purchase is subject to outstanding incumbrances — deeds.</p> <p>Where, after a land company had taken a deed to certain land in the name of one of its clerks, he gave a mortgage thereon to the company, and the latter conveys the property to the trustees of a syndicate which it had procured to purchase the land, the grantees of the clerk as against the land company may defend an action to foreclose the mortgage on the ground that its execution was obtained by plaintiff through false statements regarding its validity.</p> <p>Where a grantee takes subject to a mortgage under a deed expressly stating and recognizing it, either by name or in amount, or he assumes the payment of. the mortgage, he is estopped from attacking its validity; but, if he merely takes the title subject to “ liens and incumbrances of record,” he is entitled to show that a mortgage of record is not a valid incumbrance but is void for fraud. Where a grantee of the purchaser from the mortgagor conveys his interest in the mortgaged premises, he is not a proper party to an action to foreclose the mortgage.</p> <p>The acts of the clerk in whose name title to the land was taken and who gave the mortgage sought to be foreclosed, and the act of the company’s general superintendent. of agents, who worked up the sale of the land to others subject to the mortgage, are to be deemed the acts of the mortgagee in determining whether the mortgage had been procured by fraud.</p> <p>Evidence in the action to foreclose the mortgage considered, and held to show:</p> <p>That the mortgagee did not purchase the land for itself; but was acting merely as the agent for the. syndicate to which a conveyance of the land was subsequently made.</p> <p>That the mortgagee agreed to purchase the land for-$550,000 and took a second mortgage, the one in suit, for $90,000 in payment for services in procuring the property and expenses in forming the syndicate, but did not perform the services payment for which the mortgage,was given to secure.</p> <p>The land company under its agreement with the syndicate was in duty bound to act in good faith and was precluded from making a secret profit out of the transaction.</p> <p>Where it appears that the land company on the day before' it made the contract to convey the property' to the syndicate for $640,000 had contracted with the executors of an estate which owned the land, an officer of the company being one of said executors, to buy it for $350,000 and on the delivery of the deed to the syndicate received $129,000 in cash and a $90,000 mortgage over and above the $300,000 mortgage which it gave to said ■ executors, it received their deed of the land for $50,000 cash over said mortgage, and thus without expense to itself received a profit of $79,570 in cash and said $90,000 mortgage for its conveyance to the syndicate, and that since it had received from the subscribers thereof about $11,000, the $90,000 mortgage must be declared void and canceled of record.</p>