Volume 77 — New York Miscellaneous Reports

<p>Application to have a title to real property registered under The Title Registration Law (Article 12 of the Real Property Law).</p>

<p>Libel and slander — words injuring business or occupation — pleading — demurrer — averring publication.</p> <p>In determining whether a newspaper article is libelous, its scope and object must be considered together and its language given a natural construction.</p> <p>Where at the time when the American Sugar Refining Company, its officers and employees, were charged with defrauding the government of the United States by fraudulently tampering with the scales upon which sugar, a dutiable commodity, was weighed for the purpose of determining the amount of import duty, there was published in defendant’s newspaper in New York city, where the investigation of the charges was conducted, an article in which reference was made to weighing trickery and crooked scales and which contained a false statement that plaintiff was the inventor of a corset steel spring device which was shown by him to an official of the sugar company, which official referred him to a superintendent who was at the time of publication of said article on trial for like frauds against the government, said false statement fairly charges plaintiff with an offense against sections 5440, 5445 of the U. S. Revised Statutes and section 9 of the Act of Congress of June 10, 1890, and the complaint in an action for libel alleging the facts is good on demurrer.</p> <p>Such publication imputed to plaintiff a vicious act tending to diminish his respectability and impair his comfort by the attendant disgrace and contempt, and damage will be presumed.</p>

<p>Indictment — finding and filing and final requisites — homicide — habeas corpus.</p> <p>Upon a hearing in habeas corpus proceedings to inquire into the cause of detention of relator, who was under indictment for murder in the first degree, the court will not go behind the indictment to inquire into the merits.</p>

<p>Action for partition; motion for an additional allowance.</p>

<p>Labor unions — constitution and by-laws — internal management of — expulsion from membership — local unions — membership of local unions — courts.</p> <p>While the courts will not interfere with the internal management of labor unions, every member will be accorded the rights and privileges guaranteed to him by the constitution and by-laws, and if these be disregarded he may seek redress in the courts.</p> <p>Plaintiff, as a member of a national plumbers’ association, was entitled to recognition as a union man. The proceedings, both in the local union and in the national organization, which resulted in his expulsion from membership, were conducted in disregard of duly prescribed procedure. In an action against the national association for damages because of such expulsion, the jury found that plaintiff was not accorded a fair hearing and trial and it was admitted that plaintiff’s expulsion was ratified and confirmed by the executive board of defendant. On motion by defendant for a new trial, held:</p> <p>That defendant was liable for the acts of the local union, its agent.</p> <p>That the question whether plaintiff was lawfully expelled was for the jury, and its estimate of the damage, though liberal, would not be held excessive as matter of law, it appearing that the ground of expulsion had little to support it and there being no suggestion that he was not faithful to the association prior to hia expulsion.</p>

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

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

<p>Injunctions — who and what may he enjoined — actions for injunctions —'dismissal of action.</p> <p>Application for an injunction by one engaged in the business of selling bottled water to restrain defendant, who was engaged in the same business, from the use of a certain form of bottle, denied, and complaint dismissed upon the merits, it appearing that the public would not be deceived and purchase the product of defendant for that of the plaintiff.</p>

<p>Marriage — fraud and duress and capacity of parties — ignorance of wife’s pregnancy — annulment of marriage.</p> <p>Where defendant before her marriage was pregnant by another than her husband, the plaintiff, who neither before nor after the marriage had sexual intercourse with her and did not know of such pregnancy at the time of the marriage, is entitled to have it annulled for fraud.</p>

<p>Action to restrain the defendants from interfering with the rights and the property of the plaintiff’s association.</p>

<p>Appeal by plaintiff from a judgment of the City Court of the city of Eew York dismissing the complaint at the close of the plaintiff’s case, and also from an order denying plaintiff’s motion for a new trial.</p>

<p>Evidence — Oral — Action upon a contract.</p> <p>Statute of Frauds—pleading statute as a defense.</p> <p>In an action upon a contract partly in writing, testimony as to the oral part is not objectionable as tending to vary a written instrument.</p> <p>Where, in an action to recover on a contract of employment which the answer, for want of a denial, admitted was made for a period of twelve months from the 15th day of September, 1910, the testimony of plaintiff on cross-examination that he 'was employed “ from the 15'th of September, one year,” and also “ from September 15, 1910, to September 15, 1911,” is a mere conclusion that the term was for a year and a day, and the contract was not within the Statute of Frauds.</p>

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

Appeal by plaintiff from a judgment in favor of defendant dismissing the complaint at the close of plaintiff’s case, after trial by a judge without a jury in the Municipal Court of the city of Mew York, borough of Manhattan, second district.

Appeal by the plaintiff from a judgment of the City Court of the city of Kew York rendered in favor of the defendants upon the merits after a trial before the court sitting without a jury.

<p>Pawnbrokers — actions against—-pledges generally — provisions of •statutes and ordinances—■ conversion.</p> <p>After certain diamond rings had been placed in pawn with plaintiffs they issued a second or stop ticket, as provided by section 44 of the General Business Law, to defendant, a sister of the pawnor, upon her claim that she was the owner of said rings and had lost the pawn ticket. Thereafter, on presentation of the ticket issued to defendant, plaintiffs permitted her to redeem the rings upon he">- making an affidavit of ownership thereof and of the loss of the original ticket. Subsequently the wife of the pawnor presented the original ticket and obtained judgment in an action for the conversion of the ring. Held, that defendant herein was liable to' plaintiffs for the damage naturally occasioned to them by their reliance on the allegations of the affidavit of ownership.</p> <p>Though the judgment roll in the action for conversion was properly admitted to establish that plaintiffs herein had- suffered damage by reason of their reliance on the statements of defendant’s affidavit of ownership of the ring, said judgment roll was. not conclusive upon the defendant herein as to her right to the possession of the rings, in the absence of notice to her to come in and defend the action for conversion, in which, though a witness for defendant, she was given no option to take charge of the defense.</p>

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 after a trial before the court without a jury.

<p>Stipulations — requisites and validity of agreement — construction and effect — limit of right to appeal — enforcement of.</p> <p>The Municipal Court of the city of New York has no power to set aside a stipulation between the parties to an action therein to settle the controversy in suit.</p> <p>An order setting aside such a stipulation is not appealable and may be reversed only where the judgment to which it is merely incidental is reversed on appeal.</p> <p>Where the stipulation provided for the payment of an agreed-sum in monthly installments and that until full payment thereof the action should be marked “ Reserved generally,” there is not such an acknowledgment of the debt as to remove the bar of the Statute of Limitations.</p> <p>It was improper for the court upon being shown the stipulation to force the action to trial.</p> <p>Where defendant in an affidavit states that before the settlement was made his attorney advised him that lie would try to arrange a settlement, and defendant at no time attempted to evade the force of the settlement by any distinct claim that he had not authorized it, he cannot in disregard of the terms of the stipulation force the action to trial.</p>

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

<p>Appeal hy the defendants from a judgment of the Municipal Court of the city of Rew York, borough of Manhattan, second district, rendered in favor of the plaintiff after a trial before the court sitting without a jury.</p>

Appeal by the plaintiff from a judgment rendered against him in favor of defendants on their counterclaim in the Municipal Court of the city of ¡New York, borough of the Bronx, second district.

Appeal by the plaintiff from a “ judgment and order ” of the Municipal Court of the city of New York, borough of Manhattan, fifth district, setting aside the service of the summons upon the defendant.

Appeal by the plaintiff from a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, ninth district, dismissing the complaint at the close of the plaintiff’s case.

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

Appeal by defendant from a judgment in favor of plaintiff entered in the Municipal Court of the city of Hew York, borough of Manhattan, fifth district, after trial by a judge, the jury having been discharged.

Appeal by plaintiff from so much of an order of the City Court of the city of New York as requires her to ■ furnish a bill of particulars as to whether she claims that consideration passed to the defendant for endorsing the -note in suit; and if she does so claim, then full details as to the character of such consideration, the time when it was paid, etc.

Appeal by defendant from that portion of an order of the City Court of the city of Mew York which provides that the case be set down on the day calendar of the court to be called for trial in Trial Term, Part One, on the 9th day of March.

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

Appeal by the defendant from a judgment of the City C-ourt of the city of New York entered in favor of the plaintiff upon a verdict of the jury.

Appeal by the defendant from a judgment entered upon a verdict of a jury rendered in favor of the plaintiff, and from an order denying a motion for a new trial, and also from an order denying defendant’s motion to reduce the amount of the judgment entered in this action from $4,316.32 to $2,178.82.

Appeal by the plaintiff from a judgment of the Oity Court of the city of New York dismissing the complaint at the close of plaintiff’s case.

Appeal by the defendant from a judgment of the City Oourt of the city of Hew York, entered by direction of the court after each side had moved for the direction of a verdict in its favor.

Appeal by plaintiff from an order of the Municipal Court of the city of Hew York, borough of • Manhattan, fourth district, setting aside a judgment rendered in favor of the plaintiff.

Appeal by the plaintiff from a judgment dismissing the complaint at the close of plaintiff’s case, entered in the Municipal Court of the city of-Hew York, borough of Manhattan, seventh district, after a trial by a judge without a jury-

<p>Sales — warranty — acceptance — loss of profits.</p> <p>In an action for a breach of warranty on the sale of a machine, the question of plaintiff’s acceptance thereof is irrelevant as matter of law.</p> <p>Where it appears that plaintiff had no orders or contracts for the sale of articles which were to have been manufactured by the machine, damages arising from loss of profits are not recoverable though it appears that plaintiff had done an extensive business in the same class of goods which he had previously manufactured by hand.</p>

Appeal by defendant from a judgment of the Oity Court of the city of Hew York, entered upon the verdict of a jury, and from an order denying defendant’s motion for a new trial.

Appeal by plaintiff from a judgment of the City Court of the city of Hew York, entered upon a dismissal of the complaint at the close of the plaintiff’s case.

Dependant appeals upon questions of law only from a judgment of the City Court of Utica rendered upon the pleadings, a motion having been made for judgment before any evidence was taken, upon the ground that the amended answer did not raise any issue or contain any defense.

Motion to set aside verdict upon the ground that the same ivas a compromise one and not rendered by the jury in accordance with the evidence.

Motion to substitute as a party defendant, in place of the sheriff, the obligor in an undertaking given under section 1709 of the Code of Civil Procedure.

<p>Demurrer to answer for insufficiency.</p>

<p>City Court of Buffalo — trial — judgment — appeal.</p> <p>Where a nonsuit is granted in the City Court of Buffalo, the trial judge can only direct the entry of judgment.</p> <p>An order denying plaintiff’s motion for a new trial, after the granting of a nonsuit, is unauthorized, and an appeal from such order will be dismissed.</p>

<p>Action in equity to determine ownership of a liquor tax certificate issued hy the state excise department to plaintiff.</p>

<p>Pleading—answer—negotiable instruments.</p> <p>Where the answer in an action on a promissory note pleads payment as a defense, there need he no specific denial of nonpayment as alleged in the complaint.</p>

<p>Insurance (fire) — requisites and validity of contract — waiver as to condition of policy.</p> <p>Sales — nature of contract — conditional sales — insurance.</p> <p>Where, by a contract of sale of plaintiff’s steam tug in consideration of a payment in cash and the purchaser’s note for the balance of the purchase price, the purchaser was given immediate possession of the vessel and was to he given a clear bill of sale upon payment of the note, and a policy of fire insurance on the vessel, conditioned to be void if the interest of the insured be other than unconditional and sole ownership, was thereafter issued to plaintiff, he cannot recover thereon where at the time of the fire he held the purchaser’s notes for a balance due on the purchase-price, unless the insurance company has waived the condition of the policy.</p> <p>Under a provision of said policy that the insurer should not be held to have waived any provision or condition thereof or any forfeiture by any requirement, act or proceeding on its part relating to the appraisal or any examination provided for by the policy, and it appears that the adjuster, after acknowledging the receipt of the amended proofs of loss, demanded an examination of one of plaintiff’s officers and requested that he appear at the office of defendant’s attorneys, which he did, and at the close of his examination the adjuster upon being asked if he had any further questions answered “No,” the facts do not constitute a waiver of the right of the company to insist upon the condition of the policy as to the unconditional and sole ownership.</p>

Motion by defendant to vacate temporary injunction restraining defendant from operating a street railway in front of plaintiffs’ premises on Burnett road.

Proceeding by certiorari for the purpose of assessment made by the state board of tax _ commissioners upon the property and franchises of relator.

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

<p>Application for the appointment to condemn the fee of certain lands in the borough of Queens, city of New York.</p>

<p>Taxes — lien of taxes — payment — compelling officer to receive — mandamus.</p> <p>A motion to compel the collector of assessments and arrears of the city of New York, upon his refusal to accept the amount of a tax lien tendered by a person interested in the premises, to receive payment and cancel a “transfer of tax lien” is unauthorized and will be denied, the proper remedy being mandamus.</p>

<p>Condemnation proceedings — acquisition of land for street purposes — award of damages for change of grade — report of commissioners.</p> <p>In a proceeding to acquire land for street purposes, abutting owners are not entitled to be awarded damages for the taking of stoops, and other parts of their buildings, which encroach on such portions of the street as have been dedicated to public use and accepted by the public, though said owners owned the fee to the center of the street subject to the public easement.</p> <p>Where, on motion to confirm the report of commissioners in a condemnation proceeding, objection is made that the damages awarded for changes of grade are too small, and that the commission refused to receive evidence of damage from the property owners, and seem to have adopted as their award the amounts testified to by the city’s expert witness as the cost of restoring access, the report will be sent back and the objectors given an opportunity to show damage by reason of change of grade.</p> <p>Whether the striking out of awards for taking parts of buildings because of the dedication of the street should result in increasing the awards for changes of grade, should be left to the determination of the commissioners.</p> <p>Under sections 979, 980 of the Greater New York charter the commissioners are authorized to make awards only for damages caused by an intended regulation of the street, but have no jurisdiction as to past changes of grade.</p>

<p>Action of quo warranto.</p>

<p>Motion by the plaintiff for the appointment of a receiver and a temporary injunction.</p>

<p>Attachment — insufficiency of affidavit to sustain — statements on information and belief—'sources not stated.</p> <p>Where the sole affidavit in support of an attachment made by the plaintiff, an assignee of the action in suit, who states of his own knowledge an alleged contract between his assignor and defendant and an alleged breach thereof by defendant and that defendant is a foreign corporation, but sets forth no facts or circumstances from which the inference can be fairly drawn that deponent knows anything of the transactions between the original parties, or that he knows that defendant is a foreign corporation, his statements must be treated as having been made on information and belief; and not having disclosed the sources of his information and ground of belief the affidavit was insufficient, under section 636 of the Code of Civil Procedure, to sustain the attachment.</p>

<p>The nature of the application and material facts are stated in the opinion.</p>

<p>Motion to set aside service.</p>

<p>Motion for a new taxation of costs.</p>

<p>Trial of issues of law raised by plaintiff’s demurrer to certain defenses.</p>

<p>Proceeding to review the primary election for “ Member of the Republican County Committee,” first district, eighth ward, Lockport, held March 26, 1912.</p>

<p>Motion to vacate temporary injunction in a taxpayer’s action.</p>

<p>Divorce — co-respondent — costs — Code Civ. Pro., § 1757 (2).</p> <p>A co-respondent in an action for absolute divorce who does not serve an answer is not entitled to costs.</p> <p>Where, in an action for absolute divorce, the co-respondent upon whom the summons and complaint were duly served did not answer, but her attorney took part in the trial which resulted in a judgment dismissing the complaint on the merits, a motion to vacate a separate judgment for costs entered by the co-respondent, claiming the right so to do under section 1757 (2) of the Code of Civil Procedure, will he granted.</p>

<p>Master and servant — negligence — Federal Employer’s Liability Act.</p> <p>Where a brakeman employed on a train engaged both in interstate and intrastate commerce was injured in this state, through the negligence of a fellow-servant, while placing upon a siding ears loaded with freight shipped from and consigned to places in this state, he is entitled to recover for said injuries under the Federal Employers’ Liability Act; and a motion to set aside a verdict in plaintiff’s favor and for a new trial will be denied.</p>

<p>Appeal by defendant from judgment of City Court in favor of plaintiff for the amount of penalty provided by an ordinance of the city where a huckster failed to pay the sum of $75, the tax imposed for the use of a one-horse vehicle in his business as huckster.</p>

<p>Towns — Town Law, § n — election of trustees — lease of land of.</p> <p>While trustees elected at a town meeting under a statute (L. 1857, eh. 503), providing that they shall have charge of the lands of the town under such legal rules and regulations as may from time to time be made by the electors, may lease said lands, an action in respect thereto must be brought in the name of the town under section 11 of the Town Law.</p>

<p>Demubbebs to complaints in a taxpayer’s action.</p>

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

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

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

<p>Trial — complaint in equity action — counterclaim — Code Civ. Proc. § 1021.</p> <p>Where, since the amendment of 1895 to section 1021 of the Code of Civil Procedure, the complaint in an equity action and defendant’s counterclaim are both dismissed for failure of proof, no findings of fact are necessary.</p>

<p>Water and watercourses — natural watercourses — property rights in streams — Public Lands Law, § 75 — lands under water — riparian rights.</p> <p>Under the statute (L. 1857, ch. 763), establishing a bulkhead and pier line along the north shore of Staten Island upon which plaintiff’s and defendant’s uplands are situated, and section 75(4) of the Public Lands Law (Consolidated Laws, ch. 46), authorizing the commissioners of the land office to grant lands under water surrounding Staten Island to establish bulkhead lines, solid filling in of all waters, including hays and creeks within bulkhead lines, is permissible.</p> <p>Where it appears that, in 1875, the United States Government built a dyke which followed the course, substantially east and west, of the bulkhead line established under the statute of 1857 in front of plaintiff’s and defendant’s uplands, and that the waters within the dyke prior to the erection of a wharf and bulkhead upon defendant’s neighboring uplands and fillings therein were unnavigable for ordinary commercial purposes, and the bulkhead line, both legally and physically, indicates the line of deep water, and plaintiff’s riparian rights are to he determined with reference thereto; and the “ front ” of plaintiff’s lands, from which she has a right of access to deep water, is that portion of her uplands which is abreast of the bulkhead line, to-wit, its north shore; the prayer of her complaint for the removal of defendant’s erections and fillings within the limits of its patent to the east of plaintiff’s uplands will he denied on the ground that they do not unlawfully interfere with any riparian right of plaintiff.</p> <p>The legislative intent in prohibiting (Public Lands Law, § 75[5]) a grant of lands under water to any person other than the owner of “ adjacent lands ” was to recognize and protect the riparian right of access to deep water which exists independent of statute.</p> <p>A patent granted to defendant in 1880, in so far as it includes lands under water to the north of plaintiff’s uplands upon which lands under water a portion of defendant’s erections and fillings is, to that extent overlaps plaintiff’s patent granted in 1887, impairs her right of access and contravenes the intent of the statute to protect such right, as her uplands are to be regarded, within the meaning of the statute, as “ the adjacent lands ” to the lands under water which are between them and the bulkhead line.</p> <p>The power of the commissioners of the land office, upon making a grant of lands under water, to determine how they shall be apportioned between adjoining owners, cannot he arbitrarily exercised in contravention of the statute.</p> <p>For the purpose of apportioning frontage on the bulkhead line between plaintiff and defendant, the proper division is, a line running north from the most easterly point of plaintiff’s uplands to the bulkhead line, where the easterly line in plaintiff’s patent so runs.</p> <p>The rule that the value of lands under water of a creek and the cove into which it flows, which lie between plaintiff’s and defendant’s uplands, is in proportion to the quantity and they should be apportioned so that the parties should have an equal share thereof in proportion to their uplands, applied, and held, that an undue quantity of the lands under water of said creek and cove had not been granted by defendant’s patent as neither party was entitled to an extended frontage on the bulkhead line by reason of their short frontage on the creek and cove.</p> <p>Where the complaint not only demands judgment that defendant be restrained from committing acts of trespass upon the lands under water within the confines of the description in her patent, but also that defendant he barred from all claim to and estate in said lands under water and that the patent under which defendant claims so far as it purports to convey any of the- lands underwater which are within plaintiff’s patent be adjudged void and of no effect, the action properly limited as one to quiet title and to remove a cloud thereon, and incidentally to enjoin defendant's interference with plaintiff’s lands under water, is maintainable.</p>

<p>Motion to vacate order of arrest.</p>

<p>Liquor Tax Law, § 33 — warrant to search for and seize liquors, etc.— service of warrant — dismissal of complaint — evidence.</p> <p>Where, in a proceeding under section 33 of the Liquor Tax Law, the return or affidavit of service of a warrant to search for and seize liquors kept, stored and deposited for unlawful sale or distribution in premises conducted as a hotel, does not show that a copy of the warrant, containing a notice to all persons claiming any right, title or interest in the liquors or in the vessels containing the same, was posted in a conspicuous place upon the premises searched, the service of the warrant is illegal and will be vacated.</p> <p>Where the complaint upon which said warrant was issued was made and verified July 15, 1912, by a special agent of the commissioner of excise, and alleged among the sources of complainant’s information and belief that liquors were kept on the premises for unlawful sale, that lager beer was sold there on June 14, 1912, presumptively the condition alleged on that date continued to the date of the verification of the complaint, but, as by the receipt of the officer it appeared that liquors had been taken from the premises since that time, the complaint could not be used as a foundation for the issuance of another warrant as the condition on June 14, 1912, could not be presumed to continue indefinitely and after the seizure, in the absence of proof to the contrary, and the complaint, therefore, should be dismissed and the liquors returned.</p>

<p>Injunctions — municipal corporations — fences — mandamus — removal and destruction of bill-boards — destruction of private property.</p> <p>The provision of a municipal ordinance that “ All tight or closed fences, signs and bill-boards, and. all structures designed or intended for purposes of such fence, sign or bill-board, erected within the City of Newburgh, shall be constructed entirely within the building line, and of metal, including all uprights, supports and braces for the same, and shall be anchored on the property side thereof by sufficient and suitable iron or steel rods, sunk in concrete to a depth sufficient to ensure the entire safety of such structure ” is unreasonable because retroactive and allows the unnecessary and unwarranted destruction of private property in contravention of constitutional guarantees, and, therefore, illegal; and'plaintiff’s motion for an injunction pendente lite, in an action to restrain the city and its officers from removing and destroying bill-boards owned by plaintiff, a corporation authorized to carry on the business of sign advertising and which for some years has been engaged in such business in said city, will be granted.</p> <p>Plaintiff’s motion for a peremptory writ of mandamus to compel the building inspector of said city to forthwith approve plans for and consent to the construction of a closéd fence or bill-board which the relator has planned to erect within the limits of the city, granted.</p>

<p>Demurrer by the plaintiff to the sufficiency of the answer of the defendants Eoberts and 'Stanley.</p>

<p>Husband and wife — separation agreement — actions — renunciation under separation agreement—judgment.</p> <p>Where a husband and wife, upon agreeing to destroy the articles of separation pursuant to which they were living apart and to resume their marital relations, entered into a tripartite agreement by the terms of which the husband agreed to place in the hands of trustees a certain amount of money to purchase a house satisfactory to the wife, her renunciation of her rights under the separation agreement is a consideration sufficient to support the last agreement, and. in an action to have it adjudged void defendant is entitled to judgment.</p>

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

<p>Deeds — tenants by the entirety — reformation of deed—husband and wife.</p> <p>Equity — decree in, declaring a trust — statutes.</p> <p>A husband’s deed to his wife of an undivided one-half of certain premises is ineffectual to create a tenancy by the entirety, though the deed contain an agreement that the whole of the premises be held by them as tenants by the entirety, nor, in the absence of the unities of time and title, would it make them joint tenants of the property.</p> <p>A deed having been drawn as the grantor intended, it is not proper to reform it so as to add the name of another grantee alleged to have been omitted by mistake.</p> <p>Where premises are purchased with a wife’s money with the intention that the conveyance should be to her and her husband as tenants by the entirety, the husband upon taking said conveyance in his own name becomes the trustee of the resulting trust for her benefit, at least in one-half of the premises during their joint lives, with the right of survivorship.</p> <p>Under the deed of the husband to his wife they became tenants in common of the legal estate; and Ms heirs at law took one-half thereof by descent subject to the wife’s right of dower.</p> <p>In the absence of statute, a decree in equity declaring a trust and ordering a conveyance of land cannot be executed against infant defendants.</p>

<p>Motion to confirm report of commissioners of estimate and assessment.</p>

<p>Disorderly persons — conviction of a female over the age of sixteen years — commitment as provided in Laws of 1903, ch. 436.</p> <p>Section 1466 of the Consolidation Act (L. 1882, ch. 410), as amended in 1886 and 1903, which declares that upon conviction of a violation of any of the provisions thereof by a female over sixteen years of age who has not been an inmate of a penitentiary she may be committed to one of several reformatory institutions therein specified, was not repealed by the Inferior Courts Act of 1910 which repealed all acts or parts of acts inconsistent or in conflict therewith, and further provided by section 88 for the punishment of all persons over sixteen years of age who are convicted of disorderly conduct or vagrancy.</p> <p>Upon a conviction of a violation of any of the provisions of chapter 436 of the Laws of 1903 which amended section 1456 of chapter 353 of the Laws of 1886, by which section 1456 of the Consolidation Act of 1882 was amended, the defendant may be committed as provided in said act of 1903.</p>

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

<p>Parties — pleading — misj oinder of parties — waiver;</p> <p>Corporations — wills — power of sale under a will—'Vesting title in said corporation.</p> <p>The objection of a misjoinder of parties plaintiff must be distinctly specified as a ground of demurrer, or it is waived.</p> <p>Under the statute (L. 1806, eh. 4), by which the testamentary trustees of the residuary estate of E. were incorporated as the “ Trustees of the Sailors’ Snug Harbor, in the City of New York,” to give effect to the charitable purposes expressed in the will of E. the entire title to all the property, real and personal, devised and bequeathed by said testator, became vested in said corporation for the corporate purposes expressed in said statute.</p> <p>Said corporation has inherent power to sell all or any part of certain real estate in the city of New York of which testator died seized, and the exercise of such power, if deemed necessary by the trustees of the corporation, must be taken on their own responsibility, and they cannot maintain an action for the purpose of obtaining instructions as to the powers of such corporation in dealing with the property devised and bequeathed in trust.</p>

<p>Action to foreclose liens.</p>

<p>Parent and child —Domestic Relations Law, § 70 — power of court over custody of minor children.—habeas corpus — divorce.</p> <p>Section 70 of the Domestic Relations Law is not exclusive, or the only authority for the exercise of the power of the court over the custody and possession of minor children in whose proper training and education the state, as parens patriae, has an interest.</p> <p>A foreign decree of absolute divorce awarding the custody of minor children to the defendant, their mother, is not a bar to a proceeding by the husband, who is a nonresident, to obtain the possession of the children who, with their mother, are residents of this state.</p>

<p>Motion for judgment on the writ 'and return in certiorari proceedings to review local assessment for repaving, etc., Main street, from the sonth curb of Amherst street to the south approach of the proposed grade crossing improvement.</p>

<p>Motion for an order directing the filing of a further return to a writ of certiorari to review a determination of the state board of tax commissioners.</p>

Habeas corpus proceedings, instituted by a father against bis wife, living ap'art from him, for the custody of their two minor children.

<p>Canals — erection of sawmill within “ blue line ” — Barge Canal Act — damages — Code Civ. Pro. § 264.</p> <p>Where plaintiff adjacent to the Erie canal erected a sawmill within the “ blue line ” and the same was allowed to remain by the state for nearly forty years, the presumption is that the state acquiesced, and plaintiff must be regarded as a licensee whose rights could only be terminated without compensation by giving him a reasonable notice to remove.</p> <p>Where a contract, for performance of the work of enlargement required by the Barge Canal Act, in which plaintiff was named as the owner of the sawmill, provided that the contractor should become the owner thereof and remove it from the state lands, the contractor who by direction of the state engineer demolished the sawmill is not liable in damages to plaintiff, who, under section 264 of the Code of Civil Procedure, must litigate the question of compensation with the Board of Claims.</p>

<p>Deeds — railroads —1 purchase of land under a contract reserving switching rights.</p> <p>Where for many years a railroad company, without objection, had used a side track extending across a portion of plaintiff’s land for general siding and switch purposes, the presumption is that the side track was constructed, maintained and operated under some grant or by virtue of lawful authority. A purchaser of said land, with knowledge, takes title subject to the burden of the track.</p> <p>Where the purchaser of land under a contract reserving switching rights, reserved in previous deeds, knew at the time of the operation of one of the tracks, and the other was constructed at a place selected by him, and such arrangement of both switches continued unchanged for three years, he cannot thereafter be heard to object to their location, which by act of the parties had made definite and certain what was before general and uncertain in the prior deed not definitely locating the track.</p>

<p>Civil service — eligible list — transfer — reinstatement — mandamus.</p> <p>Where relator, a stoker at the Far Roclcaway Disposal Works, the day after he had been transferred to the Jamaica Disposal Plant reports for duty but found the plant closed, and on the same day he, with others, was suspended owing to reduction in the force, and his name placed on the preferred eligible list, he is not entitled to a writ of mandamus to compel reinstatement though it appears that a stoker at the Jamaica works had been transferred to the Far Rockaway plant and was there doing the work previously done by relator.</p>

<p>Pleading—denial of knowledge or information — false imprisonment.</p> <p>An answer of a corporation, in an action for false imprisonment, which- denies that it has any knowledge or information sufficient to form a belief as to the truth of any of the allegations contained in paragraphs, naming them, of the complaint, is good; and a motion by plaintiff for judgment on the pleadings must be denied.</p>

<p>Motion to vacate order of arrest.</p>

<p>Motion to strike out defendant’s answer as sham.</p>

<p>City of New York—ordinances — license to maintain a moving picture show.</p> <p>Under sections 305 et seq. of the code of ordinances of the city of New York, the granting of a license to maintain a moving picture show is in the discretion of the mayor; and his refusal to license such a show on premises immediately adjoining a public school, and opposite the parish house and other buildings of a church, is not an abuse of discretion.</p>

<p>Contracts — cancellation of — corporations — injunctions — moving picture business.</p> <p>Where plaintiff, and other corporations engaged in brandies of business connected with the production and distribution of materials required in the moving picture business, as a result of negotiations intended to bring about a- combination to improve their trade, prevent waste and solidify their enterprise, deemed it advisable to sell their several businesses to the principal defendant corporation with which each severally made a contract, and plaintiff, claiming that the 'entire transaction was an illegal restraint of trade and against public policy, brought an action to compel said defendant to deliver up the contract and other papers, and for the purpose of securing a judgment rescinding them and to restore plaintiff to the position in which it would have been had not the several transactions purported to have been done between plaintiff and defendant never occurred, but the moving papers, on a motion to restrain and prohibit certain acts on the part of the defendant during the pendency of the action which would interfere with or impede the freedom of action of plaintiff in its business and rights as they were before the execution of the several contracts to annul which the action was brought, do not disclose facts showing that the combination agreement was necessarily violative of law either in the end in view or the means of obtaining it, the motion will be denied.</p>

<p>Motion to have certain-moneys on deposit in a savings bank paid to the city chamberlain.</p>

<p>Labor unions—refusal to work on non-union material — injunction.</p> <p>Workmen may lawfully refuse to work upon non-union material.</p> <p>Where, after an injunction had been granted restraining an agent and officer of a carpenters’ labor union, and others representing it, from conspiring or acting in concert in any manner to injure or interfere with plaintiffs who employed non-union labor, said agent and officer went to members of the union who were at work on a building for which plaintiffs were furnishing woodwork and told said workmen that the trim furnished them was nonunion trim, and that to continue to handle it would be against the rules of the union, and the men thereupon voluntarily quit, sa'a act of the agent and officer was not a violation of the injunction, as the result was a peaceable strike for the purpose of advancing the interests of the brotherhood and its members, and not for the purpose of interfering with or injuring the good-will of plaintiffs’ business.</p>

<p>Demubbeb to complaint for insufficiency.</p>

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

<p>Contracts — sale of real estate — subscription by intending grantor or his authorized agent.</p> <p>Specific performance — action to compel — contracts — Statute of Frauds.</p> <p>A contract for the sale of real estate must be subscribed by the intending grantor, or his lawfully authorised agent.</p> <p>An action will not lie to compel the specific performance of a contract for the sale of certain real estate formerly occupied by C. I. B. purporting to be signed, as grantor, by F. W. B. who was neither the owner of the premises nor of any part thereof, though in the complaint he is alleged to be the duly authorized agent of the plaintiffs who are the heirs at law of 0. I. B. and by the terms of the contract the defendants agreed to pay the purchase price to F. W. B. or “the estate of C. I. B.”</p>

<p>Marriage — action to annul — Code Civ. Pro. § 744.</p> <p>The right of a mother, under section 744 of the Code of Civil Procedure, to maintain an action to annul the marriage of her son as under the age of legal consent, is neither stayed nor abrogated because the defendant wife had theretofore brought a similar action.</p> <p>But where; in the action by the mother, it is undisputed that for about a month after her son had attained the age of eighteen years he and the other defendant freely lived and cohabited together as husband and wife, the defendant wife is entitled to judgment with costs.</p>

<p>Application under section 13 of the Liquor Tax Law for a special town meeting, in the town of Hamlin, Monroe county, FT. Y.</p>

<p>Application for an order directing that the petitions and certificates heretofore filed with the board of elections be declared invalid.</p>

<p>Pleading — complaint — action t—motion for judgment on the. pleadings.</p> <p>Where plaintiff gave to defendants, who were stock-brokers, a discretionary order to buy and sell for him a maximum number of shares of stock, and the transaction resulted in a net loss, as stated by the brokers, which plaintiff, after an accounting paid, and the complaint, in an action to open the accounting for fraud, after alleging that defendants failed and refused to send plaintiff a copy of his discretionary order, that plaintiff had no means of refreshing his memory as to its terms, that he did not receive a copy of the order until after the accounting and that then, for the first time, he learned that defendants had exceeded their authority, and also an allegation that defendants reported all purchases to plaintiff who fails to allege that at the time of the accounting he was not in possession of all the facts he now knows, contains allegations which are mere conclusions from the specific facts pleaded, and sets, forth no cause of action, and defendants’ motion for judgment on the pleadings will be granted.</p>

<p>Application for leave to change the name of a corporation.</p>

<p>Motion to vacate a judgment and for a new trial on the ground of newly discovered evidence.</p>

<p>Motion to strike out as sham an affirmative defense set up in the answers of defendants.</p>

<p>Pledge — right to — voting trust certificates — corporations.</p> <p>Upon a cash purchase of certain stock, defendant 0 received from the secretary of the corporation a voting trust certificate. Several days thereafter, at the office of the corporation, he handed said certificate to said secretary for the express purpose of having it transferred to him on the books of the voting trustees in accordance with the arrangément by which the stock of the corporation was turned over to them, they in turn issuing the voting trust certificates. Said secretary gave a receipt showing that the stock was left with him for no other purpose, but without the knowledge or consent of 0 delivered it to plaintiff, a trust company, as security for his personal loan, and told its officer with whom he negotiated the loan that" the certificate had been sold to one L who was out of town and on his return he, the secretary, would get the money and pay the loan. In an action to foreclose the pledge, held, .that the transaction was sufficient to put the trust company on inquiry as to whether or not the secretary had any right to pledge the certificate.</p> <p>Held that it was a plain case of larceny,' ahd the true owner, the defendant 0, who was not chargeable with negligence, was entitled to a dismissal of the complaint.</p>

<p>Appeal — perfecting of — County Court — undertaking nunc pro tunc.</p> <p>An appeal from a judgment and for a new trial in the County Court must be perfected by the giving of an undertaking as required by section 3069 of the Code of Civil Procedure, though the appeal is taken by plaintiff in whose favor the judgment was rendered.</p> <p>Where the appellant, by affidavit, brings itself within the requirement of section 3049 of said Code it will be permitted to perfect the appeal by giving the undertaking nunc pro tunc.</p>

<p>Husband and wife — action to recover installment due under separation agreement.</p> <p>The adultery of a wife, established by competent proof, is such misconduct as constitutes a defense to an action by her to recover an installment due under a separation agreement providing for her support.</p>

<p>Proceedings under section 125 of the Election Law to determine the validity of a certificate filed under sections 122 and 123 of that law with the secretary of state on the 11th day of October, 1912, nominating the respondent for the office of justice of the Supreme Court in the third judicial district.</p>