Volume 77 — New York Supplement

<p>Appeal from surrogate’s court, Kings county.</p> <p>Proceeding for the assessment of a transfer tax on the estate of Pompeo Maresi, deceased. From a part of a decree remitting the proceedings to an appraiser to ascertain the amount of the tax, and affirming such appraiser’s report in part, Giovanna P. Maresi and others, executors of the will of Pompeo Maresi, appeal. Modified.</p>

<p>Action by the Veriscope Company against William A. Brady. Judgment sustaining a demurrer to the answer.</p> <p>Harold Nathan, for plaintiff.</p>

<p>Appeal from court of general sessions, New York county.</p> <p>Tony Ametta and Felix Boniface were convicted of assault in the first degree, and appeal. Affirmed.</p>

Action by the Consolidated Railway Lighting & Refrigerating Company against Isaac L. Rice and another. From an order granting a stay of proceedings of the plaintiff until decision of an appeal from an order denying a petition by J. Lester Parsons to be made party plaintiff, plaintiff appeals. Reversed.

<p>Appeal from municipal court of New York.</p> <p>Action by Frederick Snyder against Joseph Gruniger and others. .From a judgment for defendants, plaintiff appeals. Reversed.</p>

Action by Frank H. Thies, as administrator of Henry Thies, deceased, against Edward R. Thomas, to recover damages caused by defendant’s having run over deceased, a boy between six and seven years of age, with his automobile. Judgment for plaintiff, and new trial denied.

Action by Elizabeth C. Connor, administratrix, against the General Fire Extinguisher Company and another. From a judgment in favor of the defendant General Fire Extinguisher Company, and from an order denying a new trial, plaintiff appeals. Affirmed.

<p>1. Municipal Corporations—Chief of Fire Department—Failure to Attend Fire—Negligence—Evidence.</p> <p>In an action by the owners of a house which was destroyed by fire against the chief of a fire department for damages sustained from defendant’s alleged negligence in failing to have the fire department present at the fire, there was evidence that there was a well near the house, but no bucket, chain, or rope; that there was a creek about 200 feet away, but no pails or buckets to carry water in. It did not appear that there were any water mains or other water supply in the vicinity, adapted to the use of the apparatus of the fire department; and there was evidence negativing presumptions of negligence and of defendant’s ability to extinguish the fire, even if he had been present. Held, that the evidence was insufficient to show" any actionable neglect on defendant’s part.</p> <p>2. Evidence—Defendant’s Answer—Introduction bt Plaintiff—Effect.</p> <p>• Where plaintiff introduces as a part of his evidence defendant’s verified answer, all statements of facts therein not controverted or disputed by other evidence must be taken to be true.</p>

<p>1. Injunction—Closing op Pool Room—Relief in Equity.</p> <p>Where a sheriff ejected those present at plaintiff’s place of business because of an alleged violation of Pen. Code, § 351, in receiving money for wagering on horse races, and forbade further transactions of such character, on an application for an injunction to restrain the officer from interfering with plaintiff’s business the question whether a crime had been committed could not be determined, the question being one for a jury in a common-law court.</p> <p>2. Same—Constitutionality of Law.</p> <p>Where a sheriff ejected those present at plaintiff’s place of business because of an alleged violation of Pen. Code, § 351, in receiving money for wagering on horse races, on an application for an injunction to restrain the officer from interfering with plaintiff’s business the question as to the constitutionality of section 351 cannot be considered, as it required the determination of a question of law.</p>

<p>Appeal from surrogate’s court, St. Lawrence county.</p> <p>In the matter of the judicial settlement of the account of Henry Sudds as executor of the will of James C. Reade, deceased. From a decree confirming the account, Vasco P. Abbott appeals. Dismissed.</p> <p>Henry Sudds, as executor of the will of James O. Reade, deceased, filed a petition in the surrogate’s court, St. Lawrence county, for a judicial settlement of his account as such executor, and a citation was issued, directed to the legatees named in said will, including one George S. Miller. The appellant was not named in the citation, but signed a written admission of service of the citation as follows, viz.: “Vasco P. Abbott, individually and as atty. for G. S. Miller.” The appellant, individually and as attorney for Miller, joined with others in written objections • to the account filed by the executor, and appellant and Miller are named in such objections as follows: “George S. Miller, and Vasco P. Abbott as assignee of one-half interest of George S. Miller.” A trial was had in the surrogate’s court, and on the 15th day of February, 1900, the surrogate filed an opinion (In re Sudds, 32 Mise. Rep. 182, 66 N. V. Supp. 231) which in no way refers to the appellant as an individual claimant to a share in the estate to be distributed. Thereafter, and on the 19th day of February, in the absence of the other parties to the proceeding, and not on a day to which the proceeding had been adjourned, the appellant filed in the surrogate’s office a paper purporting to be a copy of an agreement between himself and said Miller, which copy agreement relates to services to be performed by the appellant, as attorney, in collecting certain claims of said Miller against the estate of said Reade “for his legacy under the will of said Reade, and also * * * for work, labor, and services,” and contains an agreement as follows: “It is hereby agreed between the parties hereto that said Abbott is retained to prosecute said claims, and to use his best endeavors for the collection of the same, and in case of recovery said Abbott is to have one-half of the net recovery for his services, in addition to all taxable costs and disbursements. * * * In case said Abbott fails to make a settlement of said claims, or fails to recover in the action, he hereby agrees that his charge for services shall not exceed the sum of one dollar.” Such copy agreement is followed by a statement that appellant has performed his part of the agreement On the 22d day of February the said Miller' died. On the 26th day of February the attorneys who had appeared in the proceeding were again before the surrogate’s court, and a decision was then made by the surrogate, including findings of fact and conclusions of law, and a decree dated the 26th day of February, 1900, was entered thereon. The appellant on said 26th day of February for the first time asked to have the decree direct payment to him of one-half of the distributive share of said Miller under said will. One of the next of kin of said Miller was present in court, and objected to having the decree direct the payment to appellant of any part of the share to which the said Miller would have been entitled. The surrogate found, as a conclusion of law: “Fourth. That said Abbott is not entitled, either individually or as attorney for said George S. Miller, deceased, to have the decree direct the payment to him of one-half of the distributive share of said Miller under the will, until the representatives of said deceased have been made parties, and been given an opportunity to be heard in opposition to the claim of said Abbott.” The surrogate overruled all of the objections to said account, and no provision was made for appellant in the decree.</p>

<p>1. Action on Note—Application op Collateral.</p> <p>Where a purchaser of machines from a manufacturer agreed with the latter as to the terms under which the manufacturer should receive notes as collateral, and subsequently the purchaser sent a renewal note, and collateral notes to secure the same, "but the manufacturer refused to renew, or to apply the collateral notes to the note sought to be renewed, but claimed to hold the collateral notes under the agreement, and refused, on demand, to return them, but converted the same, in a suit on the note which the purchaser had attempted to renew the purchaser was entitled to the credit for the amount of the collateral notes.</p> <p>2. Appeal—Disposition op Cause.</p> <p>A new trial will not be granted where no substantial right of the appellant is involved.</p> <p>V 1. See Bills and Notes, vol. 7, Gent. Dig. § 1248.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Sherman A. Genung against the village of Waverly. From a judgment for defendant, plaintiff appeals. Affirmed.</p>

Application by the people, on the relation of Alfrederick S. Hatch, for mandamus requiring William McFadden, as collector of assessments and clerk of arrears of the city of New York, to receive payment of certain assessments without interest. From an order granting a peremptory writ, defendant appeals. Reversed.

Action by Caroline La Point as administratrix of the estate of Peter La Point against the Howland Paper Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed. The plaintiff’s intestate, an employe of the defendant, was killed by the bursting of a steam pipe then being used in its paper mill.

<p>Appeal from municipal court of Rochester.</p> <p>Action by D. Murphy against T. J. Sullivan. Judgment for defendant, and plaintiff appeals. Affirmed.</p>

Action by John C. Harris against Gertrude J. Harris and the Fort Miller Pulp & Paper Company, impleaded with Mary C. Harris. From judgment fixing the boundaries of land described in a deed from Jennie Sherman to defendant company, and declaring the interest of all parties therein, and directing a sale thereof to effect a partition, said company and defendant Gertrude J. Harris appeal. Reversed.

<p>Action by the "American Steel House Company against William R. Willcox and others. Application by the plaintiff for an injunction pendente lite. Motion denied.</p>

Suit by Michael Martin against the city of New York and others. Motion for an injunction pendente lite to restrain deposit of garbage. Motion denied.

<p>Appeal from special term, Saratoga county.</p> <p>Nelson J. Van Norder was convicted of violating a city ordinance, and appeals from the judgment and an order denying a motion for a new trial. Reversed.</p>

<p>1. Appeal—Exceptions.</p> <p>Where a decision contains specific findings o£ facts and one conclusion of law,-—that plaintiff is entitled to judgment,—a general exception to the decision'is sufficient to present for review any facts on which the ruling is based.</p> <p>2. Towns—Breach of Contract—Refusal to Audit—Mandamus.</p> <p>Town Law, § 162, provides for a meeting of the board of town auditors, for the purpose of auditing claims, and allowing or rejecting “all claims and charges.” • BeU that, after the town auditors have refused to audit h claim arising from breach of contract, the claimant has no action thereon, but his remedy is by mandamus.</p> <p>If 2. See Mandamus, vol. 33, Cent. Dig. § 211.</p>

<p>1. Wills — Construction — Personal Property— Alienation beyond two Liver in Being.</p> <p>Testator bequeathed his personal property to his two sons, to be held in trust for their children until such children should attain the age of 21 years, severally. In case any one of them should die before becoming 21 years old, then the whole was to go to the child or children who should attain that age. At the time the will was executed, and at the time of testator’s death, one son had three minor children living, and the other none. Held, that the bequest was invalid, under Laws 1897, c. 417, § 2, which provided that the absolute ownership of personal property shall not be suspended beyond two lives in being at the death of the testator.</p>

<p>1. Bankruptcy—Discharge—Demand for Conversion.</p> <p>Bankruptcy Act 1898, § 17, provides a discharge in bankruptcy shall relieve a bankrupt from all his provable debts save judgments for fraud .and false representations, or willful and malicious injuries to person or ■property, those debts created by fraud, defalcation, etc., .in a fiduciary ■capacity, and those not duly scheduled. Section 63a, enumerating provable debts, does not specify a demand on account of goods taken, converted, etc. Section 63, subd. “b,” provides for the liquidation of unliquidated claims, as did Act 1867, § 5067. Held, that a claim for conversion not being mentioned as a provable debt, the provisions of section -63b, referring to provable debts not made certain as to amount, and a -contention that the exceptions of section 17 indicated an intention to make other debts provable than those' in section 63a being of no merit, :a demand for conversion is not defeated by a discharge in bankruptcy.</p> <p>11. See Bankruptcy, vol. 6, Cent. Dig. §! 791.</p>

<p>1. Will—Execution—Publication.</p> <p>On an offer of probate of a holographic will and a holographic codicil, both of which had attestation clauses in the usual form, the subscribing witnesses testified that deceased neither signed them in their presence nor exhibited his signature to them, but that the papers were folded so that only a line or two was left above the lines on which they signed. The entire instrument was in the handwriting of the decedent, and the witnesses knew from previous information that they were sent for to witness the codicil, and testified that the testator told them that he had signed, and that there were only two lines, on which they were to sign as witnesses. The signatures were admittedly genuine. There was no crease which would necessarily have appeared in the will to prevent the witnesses from seeing the signature of the decedent. Held sufficient to show the due execution and publication of the will, under Code Civ. Proc. g 2620, providing that, if the witnesses testify against the execution of the will, it may nevertheless be established on proof of handwriting and other circumstances which would prove the will on trial of an action.</p> <p>3. Same.</p> <p>No particular form of publication of will is necessary.</p> <p>3. Same.</p> <p>Where witnesses to a will could have seen the signature of the testator, then legally they did see it.</p> <p>4. Same—Codicil.</p> <p>Where a will is not duly executed, it is not aided by a duly executed codicil.</p>

<p>1. Special Partner—Contribution op Capital.</p> <p>There is not a contribution of capital by a special partner, so as to relieve him from liability as a general partner, where the firm obtains money from a third person, giving him its note therefor, then gives the special partner its check, and he gives it back his check for a like amount, and a large part of the money is then paid to the person from whom the firm obtained the money.</p>

<p>1. New Trial—Newly Discovered Evidence.</p> <p>To authorize a new trial, newly discovered evidence must appear to be oí such a nature as to raise a reasonable ground to believe it would change the result.</p>

<p>1. Condemnation—Discontinuance—Costs and Expenses.</p> <p>Code, § 3374, relating to condemnation, provides that, before 30 days from the expiration of the final order, the court may authorize the abandonment of the proceedings on payment of fees and expenses of the commissioners, costs and expenses directed to be paid - in the final order, if it has been entered, and “on such terms and conditions as the court may prescribe.” Section 3374, as first adopted in 1890, provided that, within 30 days after entry of the final order, the plaintiff might abandon the proceeding by paying the fees and expenses of the commissioners, and the costs and expenses directed to be paid in such order. Chapter 198, Laws 1876, which first gave the right to abandon after final order, amended section 18 of the railroad law (chapter 140, Laws 1850) by providing for such abandonment by a railroad company on giving notice, and paying the reasonable costs and expenses of the owner, to be ascertained and adjusted by the court. On discontinuance before final order, the landowners claimed expenses in counsel fees, loss of tenants, and rents. Held, that the larger provision for costs of the act of 1876 not having been adopted in section 3374, the phrase “on such other terms and conditions” did not apply to costs and expenses of such character on a discontinuance before the appointment of commissioners, but the plaintiff was entitled to an order giving leave to discontinue on payment of taxable costs to the parties who have appeared, and costs of motions, and also the compensation of the guardian ad litem of an infant defendant, to be fixed under rule 50, relative to compensation to guardians ad litem, with opportunity to plaintiff to file answering affidavits.</p> <p>2. Same—Appointment oe Commissioners.</p> <p>Condemnation law (Code, § 3371) provides that after the report of commissioners any party may move for a confirmation, and, under section 3373, the amount directed to be paid shall be docketed as a final judgment. Sections 3379 and 3380 provide relief to a landowner when plaintiff has gone into possession and discontinues. Held that, when the plaintiff seeks to discontinue before the appointment of commissioners, a landowner has no right to compel the appointment of commissioners, so as to obtain his expenses, etc., under section 3374, providing that within 30 days after entry of the final order the plaintiff may abandon the proceeding by filing and serving a written notice of its determination to do so, and paying the fees and expenses of the commissioners and the cost and expenses directed to be paid in such order.</p>

<p>Action by Ellen B. Breslin against ,the Manhattan Railway Company and others.</p>

<p>Action by Frederick J. Brand and another against Arleigh D. Richardson.</p>

<p>Action by Charles Brooks against Alanson A. Sumner.</p>

<p>In the matter of the settlement of the account of William B. Davenport, as administrator, etc., of Eliza T. White, deceased.</p>

<p>In the matter of David 0. Fitzgerald, an attorney and counselor.</p>

In the matter of the application of Edwin W. Fiske for a writ of mandamus to the board of inspectors and poll clerks, etc.

<p>Action by Luke W. Frasier against Alanson A. Sumner.</p>

<p>Action by Nellie I. Grower, as administratrix, etc., against the New York Central & Hudson River Railroad Company.</p>

<p>Action by Charles H. Hartshorn, as administrator, etc., against the Metropolitan Life Insurance Company.</p>

<p>Action by Lucie Hamilton against the Fidelity Mutual Life Association, of Philadelphia, Pa.</p>

<p>Action by Carl Jobst and another against Thomas Myers and another.</p>

<p>Action by Anthony Iielmer, an infant, by John Iielmer, his guardian ad litem, against Reckitt & Sons, Limited.</p>

<p>Action by Helen J. Lucas against Margaret E. Callahan, as executrix of the last will and testament of Patrick Burns, deceased.</p>

<p>Actian by Peter McCann against Frederick Thileman, Jr., and another.</p>

<p>In the matter of Samuel H. Manson, an attorney and counselor.</p>

<p>Action by the Metropolitan Bank against Rosa Goldstein.</p>

<p>Action by William M. McCarthy against the New York & Harlem Railroad Company and others. From a judgment for plaintiff, defendants appeal. Affirmed.</p>

<p>Proceedings by the people of the state of New York, on the relation of Matthias J. Caliban, against Charles L. Hunt, county clerk, etc.</p>

<p>Action by John H. Rourke and others against the Elk Drug Company and others.</p>

<p>Action by Joseph V. Seaver, as committee, etc., against Oscar P. Rochevot and another.</p>

<p>Action by William Tegner against Maria Anna Herter. From a judgment for plaintiff, the defendant appeals. Affirmed.</p>

<p>Action by the Stone Hill Wine Company against Fredericka Anna Brand.</p>

<p>Action by Clifford T. Strickland against William Henry.</p>

<p>In the matter of the application of the Utica & Mohawk Valley Railway Company for the appointment of commissioners, etc.</p>

<p>Actions by Andrew Turnbull and by Jane Turnbull against the city of New York.</p>

<p>In the matter of the final judicial settlement of the accounts of Watson Turner, as guardian of the property of Earl R. Pincknéy.</p>

<p>In the matter of John Wartman, an attorney and counselor.</p>

<p>In the matter of proceedings for the disbarment of Walter Welch, an attorney and counselor.</p>

<p>Action by Francis X. Zapf against Lulu N. Carter.</p>