Volume 78 — New York Miscellaneous Reports

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

<p>Municipal corporations — city, of Newburgh — contract for paving street — establishment of grade.</p> <p>Where, upon the trial of an action to restrain the city of New-burgh from awarding a contract for the paving of a street, it is undisputed that the owners of one-third of the lineal feet frontage did not petition for the proposed improvement, plaintiff is entitled to judgment.</p> <p>Where said city by resolution, duly adopted, and by long usage actually established the grade of a residential street, thickly set-tied on both sides by costly residences, on a parabolic curve with the east gutter and sidewalk lower than the other side of the street, a contract for paving the street, by which it is proposed to raise the levels of the east gutter and sidewalk, contemplates a change of grade within the meaning of subdivision 2 of section 1 of title 6 of the charter, and is unauthorized except upon the written application of a majority of the abutting owners.</p>

<p>Habeas cobpus to inquire into the cause of relator’s detention.</p>

<p>Election Law — neglect of inspectors of primary elections in performance of duties — opening of ballot boxes and enrollment books examined—> certificate issued to candidate lawfully elected.</p> <p>The action or neglect of inspectors of primary elections in the performance of their duties as prescribed in article 4a of the Election Law is subject to review under section 56 of said statute.</p> <p>Where it is probable that occurrences in relation to the statement 'of the result of the canvass of the vote for senator were due to ignorance and neglect in the performance of duty by certain of the inspectors of primary election in the assembly districts composing the eighth senatorial district, the court will order the ballot boxes opened, the enrollment books examined, the true result adjudged, the boards of inspectors of election to reconvene and make and file a statement of said result, and a certificate issue to the candidate lawfully elected.</p>

<p>Penal Law, § 1290 — defining the crime of larceny — obtaining money by false representations.</p> <p>Indictment—■ pleading — demurrer limited to particular count in indictment.</p> <p>Section 1290 of the Penal Law defining the crime of larceny is to be interpreted not only in the light of the rule and reason of the common law but also in the light of the statutes in force at the time of the enactment of said section;</p> <p>At common law the obtainment of money by false representation or pretense where not obtained by means of a false token was not a crime.</p> <p>A demurrer may be limited to a particular count in an indictment containing several counts.</p> <p>Where the first count of an indictment under section 1290 of the Penal Law charged the defendant and others with the crime of larceny in obtaining money from complainant in the state of Connecticut by false representation or pretense, and no false token was used, and there is no allegation that the common law did not prevail in Connecticut at the time defendant obtained the money as charged, it must be presumed that no criminal act was committed in the state of Connecticut, and that, therefore, said representation or pretense made in this state was no part of the crime; and a demurrer to said count on the ground that the facts stated do not constitute a crime will be sustained.</p>

Appeal by the plaintiff from an order of' the City Court of the city of Hew York opening an alleged default and permitting the service of an. undertaking to pay the judgment; also to pay the expenses of a reference to determine whether defendant was or was not served with the summons, in' the event of its being determined that he was so served.

<p>Pleading — answer — demurrer — action for conversion of a check.</p> <p>Where the complaint, in an action for the conversion of the proceeds of a check drawn by a savings bank in another state to the order of plaintiffs upon the defendant bank, after alleging that said defendant bank had moneys sufficient to pay the check and that plaintiffs became the owners thereof for value and that defendant had converted it, alleges that the check purported to have been indorsed by plaintiffs but that said indorsement was a forgery and not made by plaintiffs, or their authority, and that defendant paid said check to persons other than plaintiffs who were not authorized to receive the same, an answer, simply alleging in the alternative that plaintiffs had knowledge or means of ascertaining, or notice or knowledge of facts sufficient to put them on inquiry as to the facts, is insufficient in law upon its face; and an order sustaining a demurrer thereto will be affirmed.</p>

Appeal by defendant from an order of the City Court of the city of Rew York granting plaintiff’s motion for judgment on the pleadings, and from the judgment entered thereon.

<p>Supplementary proceedings — order for examination of corporation — contempt.</p> <p>Where, upon the denial of a motion to vacate a third party order for the examination of. a corporation and its president in supplementary proceedings, the judgment creditor was gramted leave to file an additional affidavit for the purpose of overcoming alleged technical defects in the moving papers, the motion must be deemed tó have been granted upon the filing of such an affidavit; and, where the same was not filed, the judgment creditor was not entitled to proceed with the examination, arid the refusal to submit thereto is not a contempt either on the part of the corporation, or its president as an individual.</p>

<p>Contempt — supplementary proceedings — witness — appeal.</p> <p>Where the recitals in an order made in supplementary proceedings adjudging a witness in contempt are not sustained by the testimony given upon his examination, said order must be reversed.</p> <p>Where the record on appeal from such an order shows a statement by the witness, who was the treasurer of the judgment debtor,- that he refused to tell anything about another corporation of which he was manager, which refusal was not made in the actual presence of" the court, and upon being taken before the court he answered all questions which the justice required him to answer, the order adjudging him in contempt must be reversed.</p>

Appeal by defendant from an order of the City Court of the city of ¡New York denying the defendant’s motion to settle his proposed case on appeal.

<p>Landlord and tenant — summary proceedings — tenant’s liability for taxes — pleading.</p> <p>Where a tenant agreed to pay the taxes as part of his rent, and upon the death of his landlord, the life tenant of the premises, the relation of landlord and tenant was continued by the remaindermen who, after giving the tenant notice of their .willingness that he should continue to occupy the premises on the same terms and until further notice, obtained a final order in summary proceedings after service of a statutory notice to quit, but no warrant of removal was issued, and the tenant continued to hold over and occupy the premises paying the rent reserved, his liability for the taxes still continued; and an interlocutory judgment sustaining a demurrer to the complaint in an action to recover said taxes will be reversed and the demurrer overruled.</p>

<p>Cross' appeals from a judgment of the Municipal Court of the city of Few York.</p>

<p>Appeal by defendants from a judgment of the Municipal Court of the.city of ¡New York rendered in favor of the plaintiffs.</p>

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

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

Appeal by defendant from a judgment in favor of plaintiffs, in an action to recover the amount of a note deposited with defendant for collection.

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

<p>Appeal from a judgment of City Court of Buffalo convicting defendant of violating the Highway Law.</p>

<p>Mechanics’ liens — foreclosure of—costs under section 53 of Lien Law — “ Prevailing party.”</p> <p>Where, in an action to foreclose a mechanic’s lien, plaintiffs claim $891 and reject an offer of judgment for $500, and then one of $450, neither in form to permit the entry of a judgment in personam for any deficiency, and they finally recover $585, they are the “ prevailing party ” within the meaning of section 53 of the Lien Law and entitled to costs, the amount of which' is within the discretion of the court.</p> <p>Where an offer of judgment is not in the form provided in section 55 of the Lien Law it must be presumed to have been made under section 738 of the Code of Civil Procedure. .</p>

<p>Application to determine sufficiency of a certificate of independent nomination.</p>

<p>Corporations — stockholder’s action to restrain bond issue — surplus assets.</p> <p>Where the majority stockholders of a real estate development company have, in good faith, determined that an issue of bonds is preferable to a sale of a portion of its land as a means of raising a large sum of money immediately needed, in order to save the foreclosure of the mortgage given upon the purchase of said land, the execution of a proposed trust agreement and bond issue which, requiring the consent of every stockholder thereto, provides for the distribution of the “ balance of the assets and funds of the company remaining after the ' deduction of the amounts aforesaid,” which includes “ the principal of and interest upon the bonds issued under this agreement and then outstanding,” will be restrained on the ground that it is inequitable, and unjust, and would be the destruction of a stockholder’s right of distribution in the surplus assets of the corporation.</p>

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

<p>Election Law, § 123 — certificate of independent nomination.</p> <p>The provision of section 123 of the Election Law, that “ No separate sheet comprising an independent certificate of nomination, where such certificate consists of more than one sheet, shall be received and filed with the custodian of primary records if five per centum of the names appearing on such slieet are fraudulent or forged,” has no application to a signer who has failed to register, the statute itself providing that his name shall not be counted, and the court is not warranted in holding such failure to be a legal fraud within the meaning of said' section. The duplication of names, however, must be regarded as fraudulent under the statute and the same cannot be counted wherever such duplication appears.</p>

<p>Objections to a certificate of independent nomination.</p>

<p>Objections to a certificate of independent nomination.</p>

<p>Application to review an attempted nomination of a candidate for member of assembly.</p>

<p>Execution — Code Civ. .Pro. § 1391—notice to judgment debtor.</p> <p>Where a judgment debtor has not been examined in proceedings supplementary to execution, an application for an order directing the issuance of an execution against his wages, under section 1391. of the Code of Civil Procedure, must be on notice to him.</p>

<p>Demurrer to complaint.</p>

<p>Mortgages — foreclosure — husband without authority pledged wife’s mortgage to secure personal debt — wife not estopped from denying validity of said mortgage.</p> <p>After payment, satisfaction and discharge of a second mortgage upon real estate of a married woman given to secure a loan for purchase money, her husband procured from her another bond and mortgage payable to the same mortgagee, and upon stating to the latter that it was desired to keep said bond and mortgage alive, obtained an assignment thereof in blank, but neither the mortgage nor the assignment was ever recorded. Several years later plaintiffs, who were cotton brokers, accepted the bond and mortgage and assignment as security for an indebtedness of the husband on marginal account, upon an agreement not to record said mortgage and assignment, but, upon the husband’s failure on request to substitute negotiable collateral in place of said bond and mortgage, the mortgage and assignment were left for record, and the wife and the mortgagee were notified by plaintiffs that unless the husband’s debt was paid they would sell the bond, mortgage and assignment at public auction. At the sale, the attorney for the wife read a notice that the bond and mortgage were never made and delivered for value; that no consideration was paid therefor; that no interest had ever been paid thereon; and that she had good, valid and sufficient defenses thereto, both at law and in equity. In an action by plaintiffs as purchasers at the sale to foreclose the mortgage for the full amount of said bond and interest, there was not a scintilla of evidence that the wife, who testified that she was ignorant of business and executed the papers at the request of her husband without reading them, intended to give the bond and mortgage to her husband, nor was any claim made that she was ever paid anything on account thereof. Held, that the wife is entitled to a judgment dismissing the complaint, with direction that said mortgage and assignment be delivered to her and canceled.</p> <p>The husband’s possession of said mortgage and assignment, In the circumstances, raises no presumption of authority to convert them for his personal benefit, and no act of the wife being shown that would estop her from asserting the invalidity of the transaction she was not estopped from denying his authority by testifying on cross-examination that she left all business matters to him, no previous course of such dealing having been shown of which plaintiffs had knowledge.</p>

<p>Action to recover upon a policy of insurance covering an automobile.</p>

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

Appeal by defendant from a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, ninth district, rendered in part upon direction and in part upon the verdict of a jury in favor of the plaintiff.

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

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

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

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

Appeal by defendant from a judgment in favor of the plaintiff entered in the Municipal Court of the city of New York, borough of the Bronx, first district, after a trial by a judge and jury.

<p>Bailment — failure to return negatives subject of — presumption of negligence — evidence.</p> <p>Where plaintiff delivered to defendant certain photographic negatives upon its agreement to return them with the prints to be made therefrom within a few days after delivery, proof of the non-return of the negatives on demand is evidence of defendant’s failure to exercise ordinary care in the circumstances; and in an action for breach of contract to return the negatives plaintiff is entitled to recover.</p> <p>The presumption of negligence which arose from defendant’s failure to return the negatives was not overcome by the "fact that the system in operation in his store under which such articles were usually cared for was similar to that in use in other large department stores in the city of New York, for if the system had been followed the negatives would have been returned to plaintiff.</p> <p>The failure to return the negatives was prima facie evidence that defendant through negligence did not pursue the system which it had adopted.</p>

<p>Appeal by the, defendant from a judgment of the Municipal- Court of the city of Mew York, borough of the Bronx, second district, rendered in favor of the plaintiff after a trial before the court without a jury.</p>

<p>Banking Law, § 74 — action to recover penalty — joinder of several causes of action in one complaint.</p> <p>Joinder — causes of action — Municipal Court Act, § 146(6)—Code Civ. Pro. §§ 484, 3347(4)-</p> <p>In an action brought under section 74 of the Banking Law cumulative penalties are recoverable.</p> <p>Under section 146 (6) of the Municipal Court Act, two or more causes of action to recover for penalties incurred under a statute may be united in the same complaint.</p> <p>By section 3347(4) of the Code of Civil Procedure, section 484 of said Code relating to the joinder of causes of action in the same complaint is inapplicable to the Municipal Court of the city of New York.</p> <p>Each violation of section 74 of the Banking Law gives a separate cause of action and several such causes of action may properly be united in the same complaint, and the action may be brought in the Municipal Court of the city of New York.</p>

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

<p>Landlord and tenant —' lease — waiver in lease — expiration, on tenant’s failure to maintain a first-class flower stand.</p> <p>Where a lease provided that at the option of the landlord it should expire on the tenant’s failure to maintain a first-olass flower stand, and to keep the premises occupied by him, and the adjoining pavement, free of refuse, the mere breach of such condition does not give the landlord the right to institute summary proceedings on the ground that the tenant held over after the termination of his estate.</p> <p>A waiver in a written lease of the tenant’s right to notice of the institution of legal proceedings to dispossess him cannot be interpreted to change the character of his estate, and to convert an estate on condition into one on limitation.</p>

<p>Contracts — exclusive right to sell corporate stock — sale by corporation— action for damages.</p> <p>Where 'an agreement under which plaintiff’s assignor had the exclusive right to sell $160,000 worth of the stock of defendant corporation provided, in so far as he was concerned, that a signed subscription and twenty-five per cent in cash was to constitute a sale, and, in an action to recover $5,000 as damages arising out of a breach of the agreement, the proof is that before the expiration of such exclusive right the defendant sold over $6,200 worth of said stock, and the court directs a verdict for defendant on the ground that plaintiff could not recover commissions for sales made by defendant because they were not made on the . terms upon which under the agreement plaintiff’s assignor was limited to selling, the judgment will be reversed and a new trial ordered, as the exclusive right to sell given to plaintiff’s assignor was inconsistent with any right on the part of defendant to sell.</p>

<p>Landlord and tenant — apartment house heat — constructive eviction by failure to furnish — lease — appeal.</p> <p>It is the duty of a landlord of an apartment house to maintain therein proper heating and hot water appliances.</p> <p>A landlord’s obligation under the lease to furnish heat cannot be avoided by proof that the steam heating apparatus was worthless, and that he made ineffectual efforts to render it fit for service.</p> <p>Where, in an action to recover rent for an apartment in the city of New York from March 1, 1912, until the termination of the lease on the first of May following, and also unpaid rent for February, the weight of evidence is in favor of defendant’s contention that the premises were practically uninhabitable because of their unheated condition during the greater part of the months of January and February and when defendant' vacated the apartment on the last day of said February, there is a constructive eviction of defendant; and a judgment in plaintiff’s favor will be reversed and the complaint dismissed.</p>

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

Appeal by the plaintiff from a judgment of the City Court of the city of New York entered in favor of the defendant upon the verdict of a jury and from an order denying plaintiff’s motion for a new trial.

Appeal by the plaintiff from a judgment of the Oity Court of the city of New York in favor of the defendants upon their counterclaim for the sum of $111.06 and costs and from an order denying a motion for a new-trial.

<p>Appeal by the defendant from an interlocutory judgment of the City Court of the city of New York sustaining a demurrer to the first and second defenses in the answer.</p>

<p>Appeal — setting aside verdict in action for personal injuries — verdict.</p> <p>Where, in an action for personal injuries to an infant, two verdicts each for fifty dollars in favor of plaintiff have been set aside as against the weight of. evidence, an order setting aside a third verdict for a like amount on the same ground will be reversed and the judgment reinstated.</p>

Appeax by plaintiff from a judgment in favor of the defendant rendered in the Municipal Court of the city of Mew York, borough of Manhattan, fifth district.

<p>Contracts — certificate of architect as to completion of work — acceptance— waiver of architect’s certificate.</p> <p>Where a complaint, after alleging a contract with defendants to install a vacuum cleaner plant in a certain building, and that plaintiff should receive final payment upon the issuance of the architect’s certificate that the work had . been "completed to his satisfaction, alleges completion of the • work, that thereafter the parties agreed to make a test to ascertain whether the same fulfilled the requirements of the agreement, and such test was made and the plant “ duly complied with all the terms of said contract,” that plaintiff then demanded a certificate from the architect, which was refused, that it then demanded payment from defendants, who refused because of the absence of the architect’s certificate, and also because the test showed that the plant had not fulfilled the requirements of the contract; and the complaint further alleges that since defendants’ refusal to pay they have used the plant and have accepted the same, there is a sufficient allegation of acceptance of the plant to constitute a waiver by defendants of the architect’s certificate as a prerequisite to payment.</p>

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

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

Appeal by defendant from a judgment in favor of plaintiff, entered in the City Court of the city of Hew York, after a trial before a judge, a jury having been waived.

Appeal by the defendant from a judgment of the Municipal Court of the city of Hew York, borough of the Bronx, second district, in favor of plaintiff, awarding him $250 as the penalty provided in section 33 of the Stock Corporation Law.

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

<p>County Court — jurisdiction — actions — counterclaim affecting.</p> <p>Where the complaint in a County Court action to recover a sum of money only demands judgment for a sum not exceeding $2,000, the court has jurisdiction to try the action and render judgment upon defendant’s counterclaim irrespective of its amount</p>

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

<p>Motion by defendants for bill of particulars.</p>

<p>Action to determine whether land under water in Graves-end bay belongs to the state of New York or to the city of New York as successor to the town of Gravesend.</p>

<p>Motion to continue a temporary injunction.</p>

<p>Taxpayer’s action.</p>

<p>Application under section 22 of the Railroad Law for the appointment of commissioners to determine compensation, etc.</p>

<p>Wills — vesting of estates — contingent and vested remainders.</p> <p>Where a will is silent as to the period of vesting, the gift vests immediately on the will coming into operation, whenever it appears that the enjoyment of the legacy is postponed merely for the convenience of the estate, or to let in an intervening interest.</p> <p>The vesting of legacies is how most favored in construction, particularly under the statute which subjects limitations of future or contingent interests in personal property to the rules presented in relation to future estates in real property.</p> <p>Where upon the death of testator’s widow, the life beneficiary, the executor was directed to pay from testator’s estate a legacy of $25,000 to testator’s brother, who was an old man and childless at the time of the execution of testator’s will which did not provide for the event that the brother should die before the life tenant, the legacy to him vested at the time of testator’s death, the payment thereof being merely postponed for no other reason than to. let in the interest of testator’s widow.</p>

<p>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.</p>

<p>Appeal from an interlocutory judgment of the City Court of the city of New York sustaining the plaintiff’s demurrer to the separate defenses contained in the defendant’s answer.</p>

<p>Appeal from an order of the City Court of the city of Hew York denying the motion of the defendant Borea to vacate a judgment taken against him by the plaintiff and assigned to the defendant Hargood Realty and Construction Company.</p>

<p>Appeal by the plaintiffs from an order of the City Court of the city of Few York denying the plaintiffs’ motion for judgment on the pleadings, and granting the defendant’s motion for judgment on the pleadings.</p>

<p>Default — motion to vacate judgment hnd set aside inquest — opening of default — appeal.</p> <p>A default will, not be opened where it appears to have been willfully or intentionally allowed or that both attorney and client were .guilty of negligence.</p> <p>After the trial of an action, to recover amounts alleged to be due on accounts for merchandise delivered by plaintiff’s assignor to defendants who were notified of the assignment, had proceeded, counsel informed the court that the entire testimony of plaintiff’s assignor, who was absent from the state, in answer to the interrogatories of a commission was to the effect that he could not answer without his books which were in this state, and the trial was postponed. On the adjourned date neither the defendants who had been subpoenaed nor their attorney appeared and an inquest was taken. On motion to vacate the judgment and set aside the inquest and to open defendants’ default at the trial, it appeared that they had no intention of allowing the default and were not responsible for their attorney’s mistake in advising them not to appear on the adjourned date, as not finding the case on the calendar in the Law Journal, he believed the case would not be tried on that day. On, the renewal of a motion on new papers to open the default, defendants showed good faith and freedom from default and corroborative evidence of the merits of their defense as set forth in their proposed answer. Held, that they should be allowed their day in court.</p> <p>The discretion of the Special Term as to opening defaults is reviewable and the order denying defendants’ motion should be reversed, the judgment, however, to remain of record as security for any judgment thereafter obtained in the action.</p>

<p>Demurrer to complaint.</p>

<p>Adoption — of children under care of charitable institution — asylums.</p> <p>A Roman Catholic institution stands in loop parentis as to children surrendered to its custody pursuant to its statutory power to receive deserted children and those surrendered to it and place them by indenture or adoption.</p> <p>Where two foundlings in such an institution were surrendered to a married couple on condition that said children should be brought up in the Catholic faith and the wife dies a member of the Roman Catholic church, an order for the adoption of the children on the petition of the surviving husband who has no definite religious belief cannot be granted without the consent of the institution.</p>

Motion by defendant to dismiss the complaint on the ground that plaintiff had elected to rescind the contract as evidenced by the following’: “ To Vedder 0.

<p>Bridges — trespassing or interfering with highway — injunctions — Barge Canal Act, § 4.</p> <p>The canal board and its agents will be restrained by injunction from trespassing upon or interfering with a highway bridge over the Mohawk river where it is being enlarged as a part of the barge eanal although said bridge has been lawfully operated as a toll .bridge, unless said board construct as required by statute a new bridge and approaches or appropriate said bridge as prescribed by section 4 of the Barge Canal Act.</p>

<p>Demurrers to a counterclaim and to a defense in the answers of defendant.</p>

<p>Automobiles — joint ownership of — husband and wife — negligence.</p> <p>Where defendant’s wife, on taking a ride in an automobile jointly owned by defendant and herself, put her son, who was also defendant’s stepson, in charge, and by his negligent operation of the machine personal injuries were caused to a third person, defendant, who at the time of the accident was not in the automobile and took no part in the excursion, is not liable for said injuries.</p>

<p>Insurance (fire) — delivery of policy essential to action thereon — nonpayment of premium — return of policy by agent to company.</p> <p>A broker employed to procure insurance is the agent for the insured and not for the company. Possession of a policy of insurance is the test of authority of such agent as to what he may do therewith and as to what notices sent by him prior to his delivery of the policy may bind the insured.</p> <p>After the delivery of a policy of insurance to the insured, there is no presumption of a continuance of his broker’s authority in reference thereto. The legal delivery of a policy of fire insurance is essential to its existence as an enforcible contract.</p> <p>Where, in an action upon a policy of fire insurance which the insured never saw, it is conceded that he never paid the premium to the agent employed by him to procure the insurance, and it</p> <p>appears that the agent after demand of the premium told the insured that unless it was paid he would return the policy to defendant, the complaint is properly dismissed on the ground that there was no delivery thereof to the insured sufficient in law to bind the defendant.</p> <p>A contention that the delivery of the policy to the agent constituted a delivery to the insured as against the company, irrespective of any agreement between the agent and the insured, and that the agent had no right or authority to return the policy for cancellation because of the nonpayment of the premium, held untenable; that the policy, on which the agent had a lien for the premium, was under his control when he returned it to defendant for cancellation.</p>

<p>Demubeeb to complaint.</p>

<p>Statute of Frauds — sufficiency of memorandum — contract by telephone and letter.</p> <p>Proof taken preliminarily to ascertain whether in the disposition thereof it will be necessary to enter into a trial of the entire controversy between the parties, considered, and held to establish the making of a contract by telephone and letter for the sale and delivery to plaintiff by defendants of a certain quantity of rubber of a specified kind, as alleged in the complaint, and that there was a sufficient written memorandum signed by or on behalf of defendants to satisfy the requirements of the Statute of Frauds.</p>

<p>Education Law — jurisdiction of commissioner over public schools in city of New York — writ of prohibition.</p> <p>The exercise of jurisdiction expressly conferred by statute will not be interfered with by the issuance of a writ of prohibition.</p> <p>The commissioner of education, as chief executive officer of the state education department, has supervisory control over the public schools of the city of New York and jurisdiction to review the acts of its board of education pertaining to the qualifications of teachers and their eligibility to appointment in said schools.</p> <p>Where a difference of opinion exists among the members of the board of education of the city of New York, and between said board and the city superintendent of schools, concerning the right of more than 3,000 teachers to appointment to certain positions, the determination of the question of such right should be left to the commissioner of education in the exercise of the powers conferred on him by statute.</p> <p>Where a resolution of the board of education of the city of New York, which gave rise to a conflict between said board and the city superintendent of schools, dirécted him and the board of examiners to place the names of all persons holding certain licenses prior to February 1, 1902, upon the appropriate eligible list for teachers of graduating classes, the effect of which would be to place upon the eligible list the names of 3,000 teachers who would not be eligible under the existing by-laws of said board and many of whom, as stated in the aflidavit of the city superintendent from his knowledge of them, do not possess the qualifications which for nearly ten years have been required of those appointed to said positions, the superintendent, under section 880 of the Education Law which provides that “Any person conceiving himself aggrieved may appeal or petition to the commissioner of education,” may appeal from said resolution of the board of education.</p> <p>An application by said board of education for a writ of prohibition against the commissioner of education and the city superintendent of schools from further proceeding with the appeal taken by the latter, denied-</p>

<p>Liquor Tax Law — certificate improperly issued to one having no interest in the premises — refusal to grant certificate to tenant on proper application — certiorari.</p> <p>Where the owner of leased premises, which have been used for many years for traffic in liquors, has consented that a liquor tax certificate may be issued to a tenant who has furnished a sufficient application and bond in due form, such tenant is entitled to such certificate; and the refusal of the county treasurer to grant it because of the existence of a prior one improperly obtained, over the protest of the owner of the premises, by one who has no right, title, claim or interest in or to the said premises, is unjustifiable; and on certiorari the county treasurer will be directed to issue the liquor tax certificate to said tenant.</p>

Appeal by the defendant from a judgment of the Municpal Court of the city of ¡New York, borough of Manhattan, first district, entered in favor of the plaintiff.

Appeal by plaintiff from an interlocutory judgment of the City Court of the city of Hew York, sustaining.defendant’s demurrer to the complaint.

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

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

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

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

<p>Automobiles — contract for repairs — actions.</p> <p>Defendant left his auto with plaintiff to be thoroughly overhauled under an agreement which made no mention as to price or warranty. When the work was nearly completed, a friend of defendant said to Mm in the hearing of plaintiff’s superintendent that he should have sent the car to the makers for such extensive repairs, to which the superintendent responded that he would guaranty the job, or the car, for a year. After the payment of over five hundred dollars for said work, defendant brought back his car several times for trivial repairs. In an action to recover for subsequent repairs, a judgment in defendant’s favor -upon a counterclaim for other repairs made to the car within the year is erroneous.</p>

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

Appeal by the defendant from a judgment of the Municipal Court of the city of ¡New York, borough, of Man-ha tan, fifth district, rendered in favor of the plaintiff.

Appeal by the defendants from an order of the Municipal Court of the city of ¡New York, borough of Manhattan, seventh district, denying a motion of the defendants to open their default for failure to answer after their demurrer to the complaint had been overruled, and also from a judgment of the same court rendered in favor of the plaintiffs entered upon an order overruling said demurrer.

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

Appeal by plaintiff from an order of the Municipal Court of the city of ¡New York, borough of Manhattan, second district, setting aside the verdict of a jury in favor of plaintiff for $250, on the ground that it was against the weight of evidence.

Appeal by the defendant from an order of the Municipal Court of the city of Hew York, borough of Manhattan, second district, granting a motion to vacate and set aside a judgment taken by default in favor of the plaintiff upon certain terms.

<p>Appeal from a judgment of the Oity Court of the city of New York, dismissing the complaint upon motion made at the commencement of the trial upon the pleadings and the hill of particulars.</p>

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

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

Appeal by the plaintiffs from a judgment of the City Court of the city of Hew York, entered upon a verdict render’d in favor of the defendant and from an order denying a motion for a new trial.

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

<p>Mistake — reducing agreement to writing — correction of mistake — contracts.</p> <p>Contracts — breach of — evidence — mistake.</p> <p>A .mistake in reducing an agreement to writing may be corrected.</p> <p>Where, in an action to recover for an alleged breach of contract for the demolition of buildings on certain premises, by which contract the materials in the buildings were to become the property of plaintiff, it appears that the contract was indefinite and vague, if not contradictory, as to precisely what houses it covered, and the issues between the parties relate solely to five occupied houses, a diagram, of which plaintiff knew when it made its bid, is admissible to show that the buildings concerned were only those shown on said diagram, and that the numerical description of the houses in the proposals submitted for plaintiff’s signature was a clerical error on defendants’ part.</p> <p>It was not necessary that the mistake should have been mutual to enable defendants to avail themselves of the defense that the five occupied houses were included, by mistake, in the contract.</p>

<p>Appeal from a judgment of the City Court of the city of New York entered upon the verdict of a jury, and from an order denying the defendant’s motion for a new trial.</p>

Appeal by the plaintiff from a judgment of the Oity Court of the city of Hew York rendered in favor of the defendant Louis Bustanoby, after a trial before the court sitting without a jury.

<p>Trial — right to open and close the case — negotiable instruments.</p> <p>Where the answer in an action on promissory notes merely alleges that plaintiff accepted certain shares of stock in payment of the notes, which plaintiff claimed were received conditionally, subject to investigation, and the only witnesses to the transaction were the parties to the suit, defendant has the right to open and close the case.</p>

<p>Sale — output of ice plant — action for broker’s commissions — erroneous refusal to charge — evidence.</p> <p>A broker’s duty is to bring the minds of buyer and seller in agreement as to the price and terms on which a sale is to be made, and until that is done his right to commissions does not accrue.</p> <p>Plaintiff, after stating to defendant that he could obtain a purchaser for the entire output of defendant’s ice manufacturing plant, brought its representative and the president of an ice company together. The defendant refused to sign a proposed contract signed by" the ice company, which provided “ should the output during the period from May 1st to October 1st of any year of,this agreement not average nine hundred (900) cakes per day, then during the succeeding six months, the party of the second part (the ice company) will be obligated to purchase and pay for only one-third, of the amount manufactured during the preceding period ih-om May 1st to October 1st.” On request, the court refused to charge “that the burden is on the plaintiff to prove by a fair preponderance of evidence that the defendant agreed verbally with the ice company that three hundred cakes of ice a day to be supplied in the winter time was made dependent upon the defendant’s supplying the ice company with nine hundred cakes in the summer time,” and did charge that it was a question for the jury to determine from the evidence. Held, that such refusal to charge was error calling for the reversal of a judgment in plaintiff’s favor calculated upon the amount oi ice that would have been delivered for a period of five years had defendant delivered 1,200 cakes in each year.</p>

<p>Appeal from a judgment of the City Court of the city of Hew York, entered in favor of the plaintiff for the suit of $953.13 damages and costs, upon the verdict of a jury.</p>

<p>Chattel mortgages — foreclosure of — debt secured by—possession and sale of chattels by mortgagee — action on original debt.</p> <p>Where a mortgagee of chattels instead of foreclosing his security, takes possession of the chattels, the mortgage debt is thereby satisfied provided the chattels are of sufficient value for that purpose.</p> <p>Where defendant, after purchasing chattels subject to a mortgage, payable on demand but not given to secure the purchase price, and held by plaintiffs, obtained from them a loan, satisfied the mortgage and paid over the balance, and thereafter without foreclosure plaintiffs took possession of and sold the chattels and credited the proceeds on the mortgage debt, a dismissal of the complaint in an action to recover on the original debt, on the ground that the court did not have jurisdiction of the cause of action, is reversible error.</p>

<p>Partition — motion for judgment on the pleadings — no allegation as to appointment of executor or administrator — pleading.</p> <p>Where the deceased father of defendant, survived by his second wife and their four children and four children by his first wife, one of whom is a plaintiff herein, left one-third of his property to his wife and the remainder to all his children in equal shares, and the complaint in an action for partition commenced less than three years after the death of the second wife contains no allegation as to whether or not an executor or administrator of his estate had been appointed, a motion by defendant, under section 547 of the Code of Civil Procedure, for judgment on the pleadings will be granted unless the complaint be amended by the insertion of such an allegation.</p>

<p>Negligence — automobile accident — evidence1—improper question as to insurance of defendant.</p> <p>Where, in an action to recover for personal injuries sustained in a collision with defendant’s automobile, there is brought to the attention of the jury the fact that defendant was insured against any judgment that might be obtained against him, a verdict in plaintiff’s favor will be set aside.</p> <p>Where defendant, on cross-examination, was asked “ Didn’t you tell me that you would have to refer to your insurance company,”</p> <p>not for the purpose of showing insurance protection but to establish that when he was charged with causing plaintiff’s injuries he failed to deny the charge, thereby tacitly admitting his connection with the accident, the question requires a setting aside of the verdict in plaintiff's favor, though the answer thereto was stricken out and the objection to the question was sustained.</p>

<p>New trial — assault — verdict no cause of action — motions and orders.</p> <p>Witnesses — competency of — Code Civ. Pro. § 829.</p> <p>The general rule that a new trial will not be granted to enable a plaintiff to recover nominal damages has no application where a verdict of no cause of action has been rendered against the plaintiff in an action for an assault which he deliberately invited but which resulted in no actual damage.</p> <p>In such case, a motion to set aside the verdict and for a new trial will be granted unless defendant enters into a written stipulation to waive all costs and disbursements of the action.</p> <p>The exclusion of the testimony of a witness not interested in the event of the action on the ground that he was incompetent to testify under section 829 of the Oode of Civil Procedure, though erroneous, held not to demand the setting aside of the verdict, the facts attempted to be proved by him being merely cumulative.</p>

<p>Application by defendant for a certificate of reasonable doubt..</p>

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

Application to tax the fees and expenses of Edward II. Hicoll and Rudolph DiedHng as commissioners of appraisal in section Ho. 6 in the above entitled matter.

<p>Mechanics’ liens — foreclosure — sub-contractor’s abandonment of work — engineer's instruction ofcut ” final.</p> <p>Where by a contract for the construction of a sewer the engineer of the sewer commission is made the sole and final judge and arbiter as to the intent and meaning of any clause of the contract and the word “ cut ” therein has been construed by him to mean the distance from the surface of the ground to the flow line or bottom of the inside of the sewer when constructed in open cut, tlic abandonment of work by a sub-contractor because he could not secure a modification of such interpretation was unjustified and he forfeits all immediate right to all money not then actually due him.</p> <p>Where the sub-contractor abandoned work three days before $3,760.89 would have become due him, the contractor after calling upon the sub-contractor to continue work, which lie failed to do, may hold all money due him until the completion of the work in order to protect itself in completing the contract.</p> <p>In an action to foreclose mechanics’ liens for materials furnished to the sub-contractor, the defendant contractor and its surety are entitled to judgment dismissing the complaint.</p>

Trial in equity for an interlocutory judgment enjoining the use of plaintiff’s photograph in violation of the Civil Rights Law (Laws of 1909, chap. 14).

Plaintive was employed by defendant on one of its ships. He was engaged in Hamburg, Germany, for the voyage to Hew York and return. While on this journey and in the harbor of Hew York he was injured, as the result of a defect in a windlass which was being used by him and his co-employees to haul in the anchor chain when the ship left quarantine to dock in the city of Hew York. He obtained a verdict for damages for his master’s negligence.

<p>Application for an order directing the superintendent of banks to pay over, out of moneys in his possession as liquidator, a certain sum of money, with interest.</p>

Aotiqw in equity to determine conflicting claims to a benefit fund, payable under a certificate of membership in the Royal Arcanum. The action was first brought against the Royal Arcanum and the defendant was .interpleaded.

<p>Mortgages — foreclosure of second — extension of time of payment — judgment for deficiency.</p> <p>Where a conveyance is made subject to a second mortgage, the grantee stands in a quasi relation of principal debtor only to the extent of the value of the land if that be less than the mortgage debt, in which event the mortgagor remains the sole principal debtor, and as to any deficiency in such value he is not discharged from liability nor his right in any manner disturbed.</p> <p>Where a conveyance of real estate was made subject to a second mortgage, and after it became due the mortgagee and the owner of the property entered into an agreement whereby a new mortgage for an increased amount should be placed on the property instead of a first mortgage, the holder of the second mortgage agreeing to subordinate it to said mortgage, the owner of the property who agreed to make certain payments of the second mortgage is relieved from the bond only to the extent that his position has been made worse by the extension of time payment, and by the increase of the prior lien, and in an action to foreclose the second mortgage the plaintiff is entitled to judgment against said owner for any deficiency which remains after applying the proceeds of sale to the payment of the mortgage debt with the costs, interest and expenses of the sale less any amount by which the total amount of the liens against the property had been increased.</p>

<p>Action to foreclose a mortgage upon certain real property.</p>

<p>Action to enforce a trust.</p>

<p>Action to establish ownership of a savings bank deposit.</p>

<p>Actioist for an. injunction to restrain the erection of a line fence.</p>

<p>Criminal procedure — certificate of reasonable doubt granted — bribery statute — indictment.</p> <p>Where from the language of the bribery statute and the absence of authority directly in point questions of law involved ought to be determined by an appellate tribunal, a certificate of reasonable doubt will 'be granted as to whether an instruction to the jury defining bribery as applying to the acts of defendant in evidence was erroneous; whether the facts charged in the indictment constitute a crime, and if the defendant has been sufficiently apprised thereof; and whether, under the statute, the acts of defendant as found by the jury constitute the crime of receiving a bribe.</p>

<p>Statutes — creation of new county — Laws 1912, chap. 548, known as the "Bronx County Act” — referendum of question to voters constitutional.</p> <p>Habeas corpus—application to he discharged from custody — jurisdiction of Court of General Sessions may be raised — dismissal of indictment.</p> <p>While the new county created by chapter 548 of the Laws of 1912, known as the Bronx County Act,” does not come into existence until January 1, 1914, the act for all formative, purposes took effect April 19, 1912, as provided by section 17 thereof.</p> <p>The provision of said act, that at the general election of 1912 there should be submitted to the voters of the borough of the Bronx the question “ Shall the territory within the borough of the Bronx be erected into the county of Bronx?” and that if a majority of the votes cast on the question were against the erection of the new county said act should be void, is constitutional.</p> <p>It clearly appearing from the provisions of said act that until the Supreme Court be in a position to administer justice in the territory of the Bronx the Court of General Sessions in and for the county of New York and the Supreme Court were to exercise concurrent jurisdiction over crimes committed within that territery, and that the sessions of these courts during the period from April 19, 1912, to January 1, 1914, were to continue to be held in New York county, under no possible construction could the statute he held to have taken effect on April 19, 1912, for the purpose of terminating the jurisdiction of said Court of General Sessions within the territory of the Bronx.</p> <p>Where relator, in October, 1912, on his conviction in the Court of General Sessions in and for the county of New York of the crime of murder in the first degree committed June 19, 1912, within the territory embraced within the borough of the Bronx, was sentenced, his application to be discharged on habeas corpus from the custody of the warden of the state prison and to he remanded to the city prison to await trial in .the Supreme Court, on the ground that said Court of General Sessions was without jurisdiction to try him for the offense charged in the indictment by reason of the passage of said Bronx County Act, must be dismissed.</p> <p>The question of the jurisdiction of said Court of General Sessions which imposed sentence upon relator was properly raised on the writ of habeas corpus.</p>

<p>Motion by a trustee in bankruptcy of defendant to vacate a warrant of attachment.</p>

Action by plaintiff to recover from the defendant, a fraternal association, a death benefit arising under and by virtue of a certificate of membership issued by defendant.

<p>Negligence — action for personal injuries against two defendants — verdict against one only — complaint dismissed against other defendant.</p> <p>On the trial of an action brought against a trolley company and a railroad company, for personal injuries due to the derailing of a trolley car in which plaintiff was a passenger, motions of defendants’ counsel to dismiss the complaint, made at the close of plaintiff’s case, were denied with an exception to each defendant, and counsel for the railroad company, upon the denial of his motion for a nonsuit renewed after he put in his defense, stated that he withdrew from the case and did not desire to participate in the cross-examination of either the plaintiff on rebuttal, or his codefendant’s witnesses, but reserved the right to sum up. After defendant trolley company had put in its proof and the case was closed, motions to dismiss made by counsel for both defendants were denied and exception taken: Counsel for the parties summed up and the jury rendered a verdict in favor of the plaintiff for the full amount claimed, to be paid by defendant railroad company. After a denial of the railroad company’s counsel’s motion to set aside the verdict on the ground that it was contrary to law, to the facts and to the wording of the complaint, the complaint was dismissed as to the trolley company. On affirming the judgment entered on such dismissal, held, that from the language of the verdict it was in favor of the trolley company, and from the silence of plaintiff’s counsel and his omission to make appropriate motions plaintiff should be held to have acquiesced therein.</p>

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

<p>Appeal by defendant from a judgment of the Municipal Court of the borough of Kings rendered in favor of plaintiff.</p>

<p>Waters and watercourses — action to restrain use of spring.</p> <p>The evidence in an action to restrain defendants from using through pipes and pump logs the waters of a certain spring which discharged into a brook running from another spring, its principal source, considered, and held, that as against one defendant who had no further rights as a riparian owner along the broolc than he had acquired by prescription plaintiffs were not entitled to any restraining order; but that as against the other defendant who had not the right to use said spring plaintiffs were entitled to judgment restraining said defendant from drawing water therefrom through the pipe which had been laid.</p>

<p>Equity — liens — action to declare and foreclose — successive assignments of lease to different parties.</p> <p>Assignments—of lease — advancements on faith of possession of lease — priority of.</p> <p>In equity, between conflicting equitable interests or liens, other things being equal, the one that is prior in time is superior in right; but where, upon the assignment of a lease to secure a loan, the assignor was permitted to retain possession of the lease, which the assignee never saw, and four years later the assignor, as security for money advanced, assigned and delivered the lease to plaintiff who, without notice of the claim of the first assignee, made advances on the faith of its possession of'the lease, it is entitled to a judgment establishing its claim as a first lien on the leasehold and for the foreclosure of the same.</p> <p>The act of the first assignee in permitting the assignor to retain the lease, thus endowing her with the apparent ownership and enabling her to assign and deliver it to plaintiff, and permitting plaintiff to retain such possession for sixteen years, Was such laches and neglect that it would be unfair and unjust to award the first assignee a superior title to that of plaintiff, even though the first assignment was prior in point of time.</p>

<p>Witnesses — fees and mileage — appearance of upon trial — Code Grim. Pro. § 6i8-b.</p> <p>Under section 616 of the Code of Criminal Procedure, as amended in 1895, witnesses for the people are entitled to the same fees and mileage as witnesses in a civil action in the same court.</p> <p>Where petitioner, in proceedings instituted by the district attorney under section 618-b of the Code of Criminal Procedure, was required to either deposit $500 or enter into "a recognizance to insure his appearance as a witness upon the trial of a defendant charged with murder, and, being unable to comply with either requirement, was committed to the county jail and detained there for practically five months when, after having testified on the trial, he was discharged, his application for an order directing the payment to him by the county treasurer of witness fees at the rate of fifty cents a day for the time he was so detained must be denied, he being legally entitled to fees only for the days he was in actual attendance upon the trial.</p>

<p>Real property — powers conferred by will — deeds — intention of grantees.</p> <p>Wills — provisions in lieu of dower — trustees — powers — valid execution of — rule of construction in creation of — Real Property Law, § 175-</p> <p>Whether a disposition of real property is in execution of a power conferred by a last will is always a question of intention; and the deed must be so construed as to effectuate the intent of the parties, unless inconsistent with settled rules of law or property.</p> <p>Where testator by his will, containing no provision in lieu of dower, gave all of his estate both real and personal to his widow “ in trust to have and to hold, with full power to sell and convey any or all of said property, both real and personal, and from the income and proceeds thereof to support and maintain during her life herself and our daughter,” and during the lifetime of the daughter the widow, individually and as executrix, made a conveyance of a part of the real estate by a deed in the usual form to convey a title in fee simple, and for more than twelve years no demand was made upon the grantee, and neither the trustee nor the beneficiaries of the trust had the use or benefit of the real estate so conveyed, it is clear that the grantor intended to convey the premises in fee simple under the power.</p> <p>Section 175 of the Eeal Property Law, that an instrument executed by the grantee of a power, conveying an estate or creating a charge, which he would have no right to convey or create, except by virtue of the power, shall be deemed a valid execution of the power, although the power be not recited or referred to therein, is a rule of construction and does not apply to the case at bar.</p>

<p>Actions—• cause . of—foreign statutes — proper parties to — maintenance of.</p> <p>Master and servant — negligence of defendant — pleading1—demurrer to complaint on grounds of no jurisdiction.</p> <p>Where a right of action is transitory, it exists not only where it arises but also in every place in which the proper parties for its' enforcement can be found.</p> <p>That a statute giving a cause of action in the state in which an accident happens was similar to an existing statute in the state wherein an action is brought is evidence of the fact that the foreign statute does not conflict with the public policy of the latter state, and the action is maintainable.</p> <p>Where a resident and citizen of New York, while employed by the defendant, a New Jersey corporation, was so injured in the foreign state that he afterward died, and the complaint in an action by his administrator to recover damages alleges that the accident occurred without fault or negligence on the part of the deceased, but solely by reason of the negligence of defendant consisting in the negligence of its employees, and the action is based on those provisions of the Workmen’s Compensation Law of the state of New Jersey by which the elective compensation is deemed agreed to “ without regard to the negligence of the employer,” a demurrer to the complaint on the grounds that the court had no jurisdiction of the subject of the action, and that the complaint does not state facts sufficient to constitute a cause of action, will be overruled.</p>

Motion by plaintiff for now trial on the minutes after a dismissal of the complaint at the close of plaintiff’s evidence.

<p>Action by plaintiffs to compel the determination of a claim to real property under §§ 1638, 1639 of the Code of Oivil Procedure.</p>

<p>Sales — automobiles — action on note given for purchase price of automobile— lien for subsequent repairs — damages.</p> <p>Where, by a contract for the sale of an automobile truck, it was agreed that the amount of the payments already made, plus the amount of any past-due purchase notes to secure any instalments of payment as provided in the contract, or the amount of any past-due instalment or payment as the same should be on the day of the resumption of the possession of the property by the seller, be fixed and determined as the liquidated measure of the compensation to it for the use of the property by the purchaser; and in an action by the trustee in bankruptcy of the seller to recover on a note given as collateral security for unpaid instalments of the purchase price it appears that after the lapse of three months, when said note had matured, defendant delivered the truck to the bankrupt to have a wheel and tire changed and that it, claiming thereon for repairs, refused to return it; and it further appears that all the instalments of the purchase price were past due at the time of the trial, and both parties request the direction of a verdict, judgment will be directed in favor of plaintiff.</p> <p>Defendant’s contention that the facts show that the bankrupt had resumed possession of the truck under the contract and was, therefore, entitled to recover only the past-due instalments as stipulated damages held untenable, as the bankrupt in asserting its lien did not resume possession in its own right but merely held the truck under its lien, the clause in the contract providing for liquidated damages having no application.</p>

<p>Action for negligence; motion to dismiss the complaint on the evidence after verdict for plaintiff for a new trial.</p>

<p>Action for money loaned.</p>

<p>Action for divorce.</p>

<p>The nature of the action and the facts, so far as material, are stated in the opinion.</p>

<p>Constitutional law — action by servant against master — foreign statutes — public acts of legislature of foreign state — violation of public policy of New York state.</p> <p>Where, in a common law action by a servant against his master to recover for personal injuries sustained in the course of his employment in the state of New Jersey, separate defenses are based on the Workman’s Compensation Acts of said state which were in force at the time of the accident, a demurrer to said separate defenses on the ground that the statute of New Jersey is opposed to the public policy of the state of New York, to the decisions of the higher courts of the state of New York, and is unconstitutional and that the courts of this state are not bound to give full faith and credit to the public acts of the legislature of the state of New Jersey when violative of the public policy of this state, will be overruled with leave to reply.</p>

<p>Taxpayer’s action.</p>

<p>Summary proceedings — lease — landlord and tenant—pleading — motion for judgment on the pleadings — action to recover taxes.</p> <p>Where, upon the death of a life tenant, the remaindermen gave notice of the termination of a lease he had made, but the tenant, after an order had been made in summary proceedings' to dispossess him, continued for years to occupy the premises, paying the rent and taxes as required by the lease, and on the reversal of an interlocutory judgment sustaining a demurrer to the complaint in an action against the tenant to recover taxes paid by the remainder-men it was held that the relation of landlord and tenant was revived and continued by the payment and acceptance of rent, it is no defense to the action to recover taxes that after the order in summary proceedings was obtained defendant tendered the rent and it was accepted by plaintiffs “without prejudice; ” and a motion by plaintiffs for judgment on the pleadings will be granted.</p>

<p>Jurisdiction — City Court of city of New York — actions involving an accounting.</p> <p>Where an accounting is necessary to determine the rights of tne parties to an agreement, whether ,to be interpreted as one of partnership or for the division of profits of the business in which they have embarked, the City Court of the city of New York has no jurisdiction of the cause of action.</p>

<p>Appeal from judgment in favor of defendant after trial by jury.</p>

<p>Automobiles — running on city street — action for damage for collision with trolley car.</p> <p>One running an automobile on a city street must have it under such reasonable control as to be able to promptly stop it should occasion require.</p> <p>Where, in an action to recover damages to plaintiffs automobile resulting from its collision with a trolley car at a street intersection, it appears that the chauffeur, with knowledge that he was approaching a situation of obvious danger due to the obstruction on both streets and the restricted and limited roadway space for vehicular travel, was going at the rate of ten miles an hour, he ■was negligent as matter of law, and the complaint should be dismissed.</p>

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

<p>City of New York—license fee for private hack stand in — ordinance requiring payment of license fee.</p> <p>Where a license for a private hack stand in the city of New York was voluntarily paid after the repeal of an ordinance requiring payment of such a fee, it may not be recovered back.</p>

<p>Habeas corpus proceedings.</p>

<p>Negligence — contributory — exercise of care for safety — railroads.</p> <p>While an intending passenger, proceeding toward a railroad station over a course commonly used by the patrons of the company with its full knowledge and without its protest, must exercise care for her safety, she should not be held to the same exercise of care that would be required of a person casually going that way but without any lawful errand at the station.</p> <p>The long, open and 710101-10118 user of said course, in the circumstances, created a situation where it might be implied that the railway company had practically invited its passengers to take said course on the way to the station.</p> <p>Where plaintiff’s intestate, an intending passenger, on reaching the .end of a sidewalk on the main street of a village, started diagonally across an open space belonging to defendant toward its railroad station, and, while crossing a switch which ran nearly parallel to the .sidewalk, was hit and killed by one of defendant’s freight cars which had been “ kicked ” into the switch from the main track and was going by its own momentum; and the evidence was ample to justify a finding that the course taken by decedent had been open and notorious for many years and that with the knowledge of defendant’s local station agents passengers had approached the station that way without objection or protest from defendant, decedent was not a trespasser.</p> <p>The defendant was bound to exercise reasonable care in the management of trains and cars at the switch, and whether it did so in relation to the car which killed decedent was a question for the jury.</p> <p>Whether decedent looked as she was about to cross the switch and whether or not from the position and appearance of the car, in the absence of any signal, she would be able to tell whether the car was standing still, o.r was going from or coming toward her, was, in the circumstances, for the jury to say.</p>

This is a proceeding instituted by a writ of habeas corpus and transferred to the above term. ’ The relator, now in the custody of the sheriff of Oneida county, awaits conveyance to the state prison at Auburn, pursuant to- a judgment of the Oneida trial term held in October, 19-12, upon a plea of guilty, convicting him of a felony in violating section 1897 of the Penal Law in carrying concealed upon his person a revolver without a written license therefor, and inflicting the…

<p>Insurance (life) — forfeiture of policy for nonpayment of premium — sufficiency of notice under section 92 of the Insurance Law.</p> <p>To enable a life insurance company to avail itself of the provision of section 92 of the Insurance Law (Consolidated Laws, chap. 2S), permitting the forfeiture of a policy issued by it, it must substantially comply with all the terms of the statute, but the written or printed notice required thereby to be mailed to the insured need not literally follow the words of the statute.</p> <p>Where, at the time of the accidental death of plaintiff’s husband, the last premium on his life insurance policy taken out for her benefit had not been paid, and payment of the policy was refused on the ground that it had been forfeited; and in an action on the policy it is conceded that a notice was mailed to the insured within the time required by section 92 of the Insurance Law, the failure to state in said notice that the person- named therein as</p> <p>defendant’s general agent was the duly appointed agent or person authorized to collect the premium, and that it should be paid by or before the day it fell due, is not a substantial compliance with the statute, and plaintiff is entitled to judgment for the amount claimed, with interest, less the amount of the unpaid premium.</p>

<p>Motion by the defendants for judgment on the pleadings under section 547 of the Code of Civil Procedure.</p>

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

<p>Actions — judgment creditors — life insurance policy may be reached in a judgment creditor’s action.</p> <p>A judgment debtor’s life insurance policy, which provides that he may change the beneficiary at any time, is his personal property, and may be reached in a judgment creditor’s action.</p>