Volume 79 — New York Miscellaneous Reports

Appeal by the plaintiff from a judgment of the Municipal Court of the city of Yew York, borough of Manhattan, seventh district, dismissing the complaint at the close of all the evidence.

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

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

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 plaintiffs.

<p>Landlord and tenant — lease, provisions of — subject to police power — premises rendered untenantable by fire — action for rent.</p> <p>A lease is subject to the due exercise of the police power of the state so far as the public safety may require.</p> <p>Where a lease provides: “ If the premises hereby leased shall be injured by fire or otherwise, but not rendered untenantable, the same shall be repaired with all proper speed at the expense of the lessor; but, if the damage shall be so extensive as to render the premises untenantable, the rent shall be proportionately paid up to the time of such damage, and shall from thenceforth cease until such time as same shall be put in good repair,” and in an action for rent it appears that the premises were rendered untenantable by fire in March, and the evidence shows that a new stairway, required by law to make the premises such that defendants could have lawfully continued their business therein, was not completed until the following September, defendants cannot be held for the June and July rent.</p> <p>Where the evidence conclusively established that plaintiffs’ contractor proceeded diligently with the work of reconstruction in changing doors to open outwardly, as required by law, so far as he was permitted to do by 'the public authorities and by defendants, and that an alleged deprivation of space was not intentional on plaintiffs’ part, a finding of the jury that there was unreasonable delay in making repairs and intentional deprivation of usable space in so changing the doors- was against the weight of evidence.</p> <p>Where the evidence did not present the issue as to whether there was an unreasonable delay and failure to restore the premises to their original condition, or whether there was an intentional deprivation of usable space in changing doors to open outwardly, as required by law, plaintiffs by consenting to submit such issues to the jury did not waive their right to appeal from a judgment in defendants’ favor, on the ground that the verdict should be set aside on any of the grounds stated in section 999 of the Code of Civil Procedure.</p> <p>A judgment in defendants’ favor modified so as to state a dismissal of the complaint on the merits, but without prejudice to plaintiffs’ right to sue for rent becoming due after the premises had been put in good repair.</p>

Appeal by plaintiff from a judgment of the City Court of the city of New York, entered on a direction of the court dismissing the complaint at the conclusion of plaintiff’s case.

Appeal by plaintiff from a judgment of the City Court of the city of ¡New York, dismissing the plaintiff’s complaint at the end of the plaintiff’s case.

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

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

Appeal by plaintiff from a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, first district, which dismissed the action for want of jurisdiction of the person of the defendant, and which judgment also brings up for review an order vacating an attachment obtained by plaintiff against defendant’s property.

Appeal by plaintiffs from a judgment of the Municipal Court of the city of Few York, borough of Manhattan, first district, entered after a trial had without a jury.

Appeal by defendants from a judgment of the Municipal Court of the city of Row York, borough of Manhattan, eighth district, rendered in favor of plaintiffs and against the defendants in the sum of $264, and from that part of the judgment which dismissed their counterclaim, after a trial before the court without a jury.

Appeal by plaintiff from a judgment of the Municipal Court of the city of Rew York, borough of Manhattan, second district, rendered in favor of the defendant and against the plaintiff after a trial before the justice and a jury.

Appeal by Mary Walpole, owner, and Edward J. Farrell and William B. O’Mally, as sureties, from a judgment rendered in the City Court of the city of blew York in favor of the plaintiff, after a trial by the court, the notice of appeal bringing up for review an order denying a motion made by defendant Walpole for an order framing the issues arising upon her counterclaim and for a jury trial.

<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 after a trial before the judge without a jury.</p>

<p>Specific performance— oral contract to convey real estate — vendor and purchaser — real property.</p> <p>Where a contract for the sale of real estate is oral, the vendee cannot recover a payment on the purchase price unless the vendor has repudiated the contract, or is unable or unwilling to perform.</p> <p>Where the vendor, after the vendee had repudiated the contract and demanded the return of the payment made on the purchase price, tendered a warranty deed of the property as provided by the contract, duly executed, and demanded specific performance of the contract, and his answer, in an action by the vendee to recover the payment made on the purchase price, denied the invalidity of the contract and alleged readiness to perform the same, plaintiff is not entitled to recover, as on his failure to keep the contract he had forfeited the payment made thereon.</p>

<p>Ejectment — motion for new trial after repeal of section 1525 of Code of Civil Procedure denied — judgment roll in action of ejectment.</p> <p>By the repeal in 1911 of section 1525 of the Code of Civil Procedure which provided that, at any time within three years after the tiling of the judgment roll in an action of ejectment, the court on proper application must make an order vacating the judgment and granting a new trial, a judgment in ejectment rendered prior to such repeal is final and conclusive, and a motion to vacate it • and for a new trial, made after such repeal took effect, must he denied.</p>

<p>Depositions—examination before trial — objections to competency of testimony.</p> <p>In an action to set aside the probate of a will, on the grounds of undue influence and want of testamentary capacity, the defendant executor who is also the residuary legatee is entitled to a commission for the examination of his co-defendants, who are legatees, and the plaintiff, as to an estrangement alleged to have existed between testator and his next of kin, and also concerning the testamentary capacity of testator.</p> <p>As it cannot easily be determined in advance of the examination of said parties whether their testimony will be competent or not, the court will not pass upon the question on a motion for a commission for that examination, but will leave them to their objections at the time of the examination and at the trial.</p>

<p>Appeal from the order of the City Court overruling the demurrer interposed by the defendant and also from “ the paper dated November 1, 1912, entered in pursuance of said order purporting to be an interlocutory judgment assumed, claimed and intended to be an interlocutory judgment herein, which said paper- was filed and entered in the office of the clerk of this court on November 1, 1912.”</p>

Appeal by the defendants from an order of the City Court of the city of New York denying a motion to strike out certain items from a bill of costs taxed by plaintiffs.

An appeal from an order of the City Court of the city -of Hew York which denies a motion to punish the judgment-debtor for contempt.

Appeal by the tenant from a final order in summary proceedings of the Municipal Court of the city of ¡New York, borough of Manhattan, fifth district, entered upon a verdict rendered by direction of the court in favor of the landlord and from an order denying a motion for a new trial.

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

<p>Specific performance — land contract — offer of option to purchase — option exercised before withdrawal of offer and within time limit.</p> <p>Where before the withdrawal of defendant’s written offer, made without consideration, to give plaintiff an option to purchase certain real estate, the offer is accepted within the time limit, there arises an obligation on the part of defendant to convey sai'd real estate, and an obligation on the part of plaintiff to pay the purchase price; and the mutuality of obligations constitutes the consideration essential to establish a valid contract enforcible in equity.</p> <p>Where defendant, by a written offer made without consideration, gave plaintiff an option to purchase certain real estate and on payment of the purchase price agreed to execute and deliver a good and sufficient full covenant deed, and plaintiff within the time limit of the agreement and before defendant had withdrawn his offer accepted it, he is entitled to a conveyance in which defendant’s wife should join as a grantor; and an arrangement relative . to the deposit of the purchase money in a bank for defendant when he should furnish the deed he had agreed to deliver, executed by himself and wife, does not relieve Mm from his obligation under •the contract to convey.</p>

<p>Courts of Special Sessions — functus officio on pronouncing judgment. Habeas corpus — arrest of relator for alleged violation of parole.</p> <p>A Court of Special Sessions, in the absence of statutory provisions, is functus officio after trial and the pronouncement of judgment.</p> <p>Where in a police court relator, on his plea of guilty, was convicted of petit larceny and paroled to the probation officer for six months on a suspended sentence, his arrest, before the expiration of a six-months’ extension of such parole on a warrant issued by the court in which he was convicted and upon an information by the probation officer that relator had violated his parole by neglecting to comply with the terms thereof, is illegal and relator is entitled to be discharged from custody on habeas corpus.</p>

<p>Action to compel the specific performance of a contract for the conveyance of real property.</p>

<p>Judgment — default — motion to vacate — affidavit of service.</p> <p>On a motion to vacate and set aside a judgment taken by default on the ground that the summons and complaint, or either of them, was never served on defendant, though the judgment roll contains an affidavit of personal service thereof upon him, the moving papers need not contain an affidavit of merits.</p> <p>Where the,court is satisfied that the statement in defendant’s moving affidavit, that he was not at his place of business when the person who made the affidavit of personal service claims to have served the summons and complaint on defendant, is fully and completely corroborated, the presumption in favor of the affidavit of service is rebutted and the judgment will be vacated and set aside.</p>

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

<p>Liens — attorney’s lien — service in certiorari to review assessment — taxes.</p> <p>Under sections 474 and 475 of the Judiciary Law, an attorney for the owners of real property has no lien thereon for services and disbursements in a certiorari proceeding to review an assessment on such property for taxation.</p>

<p>Stipulation by the parties that the court should direct a verdict reserving its decision.</p>

<p>City of New York — revised charter, § 1090 — holder of license No 1 no vested right of promotion — mandamus.</p> <p>The clause in section 1090 of the revised charter: “ Existing eligible lists in The City of New York and the relative standing of persons whose names are on said lists shall not be affected by the passage of this act,” is given a rational, fair and appropriate meaning by limiting it to lists of those entitled to appointment to the teaching staff of the public schools in said city and that promotions are subject to such increased and higher standards and qualifications as the educational requirements of the times would seem to demand.</p> <p>One who at the time of the enactment of the educational chapter of the revised charter of the city of New York in February, 1902, held a certificate known as license No. 1, being the initial grade of license qualifying the holder to teach in the public schools of said city, has under said clause of section 1090 of said charter" no vested right of promotion to teach a graduating class without further examination as to fitness and qualifications; and his motion for a peremptory writ of mandamus to place his name on the eligible list for promotion to teach a graduating class must be denied.</p>

<p>Motion for a peremptory writ of mandamus to compel the register of Kings county to record a deed presented by the petitioner for record.</p>

<p>Taxes—■ special franchise — railway may not allege wrongful trespass —• railroads.</p> <p>So long as a railway company occupies the public streets with its tracks under color of right, it may not escape the payment of a special franchise tax therefor by alleging that it is a wrongful trespasser.</p>

<p>Taxes — special franchises — certiorari to review a special franchise — state board of tax commissioners—‘ right of railroad company to maintain tracks across public highways.</p> <p>A petition for a writ of certiorari to review a special franchise assessment for overvaluation which does not state the extent thereof is defective under section 290 of the Tax Law, but making a return to the writ and submitting the questions involved on the merits constitutes a waiver of such defect..</p> <p>Where the state board of tax commissioners in the discharge of their duties have reduced the method of assessment of special franchise of railroads to uniformity throughout the state, their determination as to the value of the intangible right of a railroad company to maintain its tracks across public highways will not be disturbed unless shown to be clearly erroneous.</p>

<p>Constitutional law — act of legislature in the interest of health, morals or safety — limiting hours of labor for women and children in factories— Labor Law, § 77.</p> <p>An act of the legislature in the interest of the health, morals or safety of the community operates within the field of surrendered rights and does not abridge the civil liberty of the individual.</p> <p>Section 77 of the Labor Law, as amended in 1912, limiting the hours of labor of women and children in factories, other than canning establishments, to nine hours a day and fifty-four, hours a week, is constitutional.</p>

<p>Negligence — indemnity insurance against liability imposed by law—• damages — judgment — temporary suspension of business rendered necessary — actions.</p> <p>Where, after defendant had issued a policy indemnifying plaintiff, an employer, against loss from the liability imposed by law upon it for damages on account of bodily injuries, accidentally suffered by any one while within or upon the premises described in the schedule annexed to the policy, or upon the premises or ways adjacent thereto, the floor beams and the flooring of the three upper floors and almost the entire roof were destroyed by fire, though none of the exterior walls of the building was injured, and while the policy was in force a third person while passing along the sidewalk in front of the premises was injured as a result of an accident caused by the falling of a brick presumably from the new roof, and recovered judgment against plaintiff herein and another, defendant, in an action on the policy, is entitled to recover the expense incurred in defending the action for personal injuries, together with the amount paid by it on account of the judgment recovered therein.</p> <p>The building having been only partially damaged, the word “ repairs ” in a condition of the policy granting to the insured the privilege of making such repairs and ordinary alterations as were necessary to the care of the premises and their maintenance in good condition, including ordinary repairs of "the elevator plant and the renewal of its existing mechanical equipment, was limited to such as were necessary to the care of the premises, and plaintiff was within its policy rights when it replaced the roof destroyed with a new one and, in so doing, it did not violate said condition though the policy did not, in express terms, cover injuries to any person engaged in the making of alterations or additions of a structural character.</p> <p>A temporary suspension of business rendered necessary by the fire was not a breach of warranty that the premises were occupied as an apartment hotel.</p> <p>In the absence of proof when a check given by plaintiff for the amount it paid on account of the judgment in the action for personal injuries was delivered, or that said cheek was received in payment, it will not be given that effect, but where the proof is that said check was paid within two months of its date and the present action was brought just one day within the ninety days fixed by the policy, a motion to dismiss the complaint, on the ground that the payments made by plaintiff on account of the loss were made more than ninety days before the action was commenced, will be denied.</p>

<p>Action to recover back illegal interest.</p>

<p>Action upon a bond or undertaking guaranteeing the performance of a contract for work.</p>

Appeal by the defendant from a judgment of the City Court of the city of Hew York entered upon the verdict of a jury, and the appellant also brings up for review an intermediate order of Special Term denying the defendant’s motion for leave to serve a supplemental answer.

Appeal by the plaintiff from an order of the City Court of the city of ¡New York, setting aside a verdict rendered in favor of the plaintiff by direction of the court, in an action for refusal to pay over the amount of a deposit belonging to the plaintiff.

Appeal by plaintiff from a judgment of the City Court of the city of Hew York rendered in favor of the defendant upon a trial by the court without a jury.

Appeal by the defendant from a judgment of the City Court of city of Yew York, entered upon a verdict rendered in favor of the plaintiff by direction of the court, in an action to recover a bank account standing in the name of a decedent.

Appeal by the plaintiffs from three orders of .the City Court of the city of Hew York granting motions made by the respective defendants for judgment on the pleadings.

<p>Pleading — Municipal Court of city of New York — proof of service of summons and complaint — answer pleading payment — evidence.</p> <p>Where defendant in a Municipal Court action procured an order to show cause why a judgment entered on his default should not be vacated and set aside, upon a duly verified proposed answer pleading payment to the first cause of action alleged in the complaint, and a denial of the second cause of action, and submits an affidavit that the summons and complaint were never served on him, and makes an affidavit of merits, and on the return of the order to show cause the evidence is ample to support a finding that the summons and complaint had not been served on defendant, the jurisdictional defect is waived; and the dismissal of the complaint is reversible error.</p> <p>The proper practice was to have vacated the judgment in plaintiff’s favor, permitted defendant to serve his proposed answer, and then to have set a date for the trial.</p>

<p>Landlord and tenant — action for personal injuries caused by fall of ceiling — landlord’s covenant to repair — when no recovery for negligence.</p> <p>A tenant, in an action on a landlord’s covenant to repair, cannot recover for personal injuries sustained by reason of the unsafe condition of the premises; to support such a recovery there must appear to be some duty imposed by law upon the landlord independent of his contract.</p> <p>Where the evidence in a tenant’s action on the landlord’s covenant tb repair, for personal injuries sustained by the falling of a ceiling in her apartment, is to the effect that the ceiling had been cracked for some time before it fell, and that on notice being given to the janitor, a brother of defendant in charge of the property, he said “I am responsible for the ceiling, it is in good condition for about two years yet and don’t worry,” and there is no evidence from which it could be found that there was a duty resting on the defendant other than his covenant to repair, or that the janitor was authorized to guarantee the safety of the premises, the testimony is insufficient to sustain a recovery against defendant for negligence, and his motion to dismiss the complaint should have been granted.</p>

<p>Appeal by the defendant from a judgment of the Municipal Court of the city of Rew York, borough of Manhattan, seventh district, rendered in favor of the plaintiff in an action on a policy of insurance.</p>

<p>Negotiable instruments — bills, notes and checks — action to recover on check — consideration — former adjudication.</p> <p>On December 13, 1895, defendant, a saloon keeper, who bought beer of plaintiff, gave him a check for $156, which together with $44 discount on beer was credited to his account, and a judgment recovered in an action commenced in July, 1896, by plaintiff against defendant to recover $247 for a balance due for goods sold and delivered between September 1, 1895, and January 1, 1896, was secured in August, 189.6, and paid. In an action subsequently brought to recover on the check, the defenses were payment and former adjudication. Held, that the burden was on defendant to show affirmatively that the balance due, for which suit was brought, was not arrived at by including in the credits the item of said check, so that the debt for which it was given was actually, embraced within the issue in that litigation and determined, and the fact might be shown by parol. ’</p> <p>If said check was accepted as payment, credited on the account and the balance thereof sued for was struck with the credit of the check allowed, and an agreement entered into that said check should be paid by defendant either in cash or by crediting thereon subsequent discounts on beer purchased, the check would constitute a new obligation, the consideration of which would be the extinguishment of the preceding debt, and the amount remaining unpaid on the check will be enforcible and the former adjudication would not be a bar; if, however, the credit of said check was charged back before the balance was struck, the former adjudication would be a bar.</p>

<p>Insurance (fire)—liability under policy — proof of loss — waiver of service of proof of loss.</p> <p>Where a fire insurance company seeks to escape liability under one of its policies, on the ground of failure to show service of a sufficient proof of loss within the time limit of the policy, and it appears that an inventory containing a list of each article claimed to have been destroyed by fire, with its value and the total amount of such claim, but neither signed nor verified by plaintiff, was given to defendant’s agent within two weeks of the fire, it was for the jury to say whether defendant, by retaining said inventory withouit objection to its form and entering into negotiations of settlement, had not waived the service of a more formal proof of loss.</p>

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

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

Appeal by the defendant from a judgment of the City Court of the city of ¡New York, rendered in favor of the plaintiff by the court, a jury having been waived, in an action upon an assigned claim for receiver’s fees and allowances.

Appeal by the plaintiff from a judgment of the City Court of the city of ISTew York, dismissing the complaint at the close of the plaintiff’s case, and from an order denying a motion for a new trial, in an action on a contract of employment for wrongful discharge.

<p>Appeal by defendant from an order of the City -Court of the city of Ñew York granting judgment to the plaintiff.</p>

Appeal by the defendant from a judgment of the Municipal Court of the city of Yew York, borough of Manhattan, third district, rendered in favor of the-plaintiff in an action to recover for damage to the plaintiff’s automobile.

Appeal by the defendant from a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, ninth district, rendered in favor of the plaintiff in an action for work, labor and services.

Appeal by the defendant Morten from a judgment of the Municipal Court of the city of New York, borough of Manhattan, ninth district, entered upon a verdict rendered in favor of the plaintiff in an action for negligence causing damage to plaintiff’s automobile.

<p>Jurisdiction — savings bank account — Municipal Courts — executors and administrators.</p> <p>Where, in an action to recover from a savings bank a deposit of money claimed by plaintiff as a gift causa mortis from her deceased sister, plaintiff is permitted to testify over defendant's Objection as to the transaction in which the deceased is alleged to have given her bank-book representing said deposit'to plaintiff, and without her testimony there is no evidence to identify the subject matter of the alleged gift, a judgment in her favor must be reversed.</p> <p>The action was within the jurisdiction of the Municipal Court, and, under section 42(2) of the Municipal Court Act, it was proper practice to join the administrator of the deceased depositor as a party defendant and determine his rights.</p> <p>The administrator, against whom a money judgment was not demanded, having appeared generally by attorney and defended, the court had ample jurisdiction on that ground alone to retain him as a party and make an adjudication that the money on deposit was no part of the decedent’s estate and that the administrator had no bona fide claim against it.</p>

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

<p>Appeal from a judgment of the City Court of Buffalo.</p>

Motion by tbe defendant for judgment on .the pleadings dismissing the plaintiffs complaint, after demurrer to the plaintiff’s complaint on the ground that the complaint fails to' state a cause of action.

<p>Motion by the assignee of the plaintiff to punish certain persons for an alleged contempt of court. Also a motion by the James Harrigan Company to vacate and set aside the judgment heretofore entered in this action, and for an order directing the state of New York and the James Harrigan Company be made parties to the action with permission to defend, and for an order modifying the injunction provisions of said judgment.</p>

<p>Motion for allowances of costs by property owners.</p>

<p>Injunctions—■ corporations — right to use the name “ Lock City Canning Company.”</p> <p>A domestic corporation engaged in the business of canning tomatoes in the city of Lockport, N. Y., as a rival of the “ Lock-port Canning Company ” having its principal place of business in the town of Lockport, Niagara county, N. Y., will be restrained from using the name “ Lock City Canning Company ” on the ground that the other company has the exclusive right to its name in connection with its business.</p>

<p>Insurance Law, §§ 133-135—1 foreign insurance companies — penalties.</p> <p>Sections 133-135 of the Insurance Law, in their applications to agents of foreign insurance companies, make no distinction between residents and nonresidents of any locality, and failure of such an agent to execute and deliver the bond prescribed by the statute before effecting an insurance subjects him to an action for the penalty provided by section 134.</p>

<p>Actiow to recover damages for personal injuries.</p>

<p>Contracts — rescission of—mistake in bid caused by unintentional transposition of figures — municipal corporations.</p> <p>Where, the morning after plaintiff's bid consisting of several items for street improvement work had been received and accepted by the city council and the contract awarded to plaintiff, a mistake caused by an unintentional transposition of figures as to two items was discovered by its officers, who promptly gave notice to the city and asked leave to withdraw its bid and for a return of the deposit made therewith, the defendant, in an action to rescind the bid and to recover the deposit, is entitled to a judgment dismissing the complaint.</p>

<p>Landlord and tenant—lease—'what constitutes a hold over by the tenant — provision in lease that it shall not be put in evidence does not oust court of right to consider competent evidence.</p> <p>On January 1, 1910, a parcel of land was leased to the Bronx Valley sewer commission, created by chapter 361 of the Laws of 1911, for a year at a yearly rental, and on the same day another parcel was leased to the same tenant for six months at a monthly rental. All rent was payable quarterly and an option given to renew the lease of the first parcel for a term of from two to twelve months, and of the second for a term of from three to nine months. The tenant remained in possession of both parcels until the middle of April, 1911, at which time it removed its entire plant. In an action for rent, held:</p> <p>That leaving odds and ends such as lumber, broken tools, etc., on the land did not constitute a hold over by the tenant beyond the time of the removal of its plant.</p> <p>That by holding over under the lease of the second parcel, without stating which period it elected to renew for, it would be deemed to have held over for the shortest term; but as said lease provided that if renewed for less than six months the rent should be paid monthly during the renewal period the quarterly payment of such rent extended the renewal term to January 1, 1911, and by holding over after that date the lease was again extended to July I, 1911, and by holding over on the first parcel after January 1, 1911, and paying the rent quarterly, the lease on that parcel was also extended six months to July 1, 1911.</p> <p>A provision in a lease, that it shall not be put in evidence in any action between the parties relating to the subject matter of the contract, does not oust the court of its right to consider competent evidence.</p>

<p>Wills — appointment of trustee to manage and control the estate — passing of remainder.</p> <p>Trusts — action to set aside transfers of real estate.</p> <p>Accounting — in Supreme Court — trustees — executors and administrators— commissions and compensation allowed on.</p> <p>Fraud—actions for—setting aside decree of Supreme Court — accounting by trustees.</p> <p>Where the will of plaintiffs father-in-law, who died seized of a large estate consisting of real and personal property, directed that on the death of his widow, the life tenant, the trustee should manage and control the entire estate, receive the rents and income thereof during the life of testator’s son and only child, with discretionary power to turn over to him, annually, such part of the income as the trustee might deem expedient, and by the terms of the will, the son, who as the only heir at law and next of kin of his mother became seized of all of her estate, took an absolute title to his father’s estate subject to be divested thereof in the event that he died leaving a child or descendant him surviving, and, having died leaving no children or descendants him surviving, all of his property and estate, including the remainder in the estate of his father, passed by the will of the son to his wife absolutely.</p> <p>Where, as part of a concerted plan by the brother and four nieces of plaintiff’s father-in-law, aided .by counsel and the trustee under a trust for the management of the estate during the life of testator’s son to overreach and withhold from plaintiff, an uneducated woman without business experience who married said son, when she was only eighteen years, of age, she without a particle of consideration was induced, in ignorance of her rights, to part with the property which on the death of her husband became hers absolutely subject only to an accounting by the trustee, and, in an action to set aside transfers of said property, ihe court is satisfied that they were made by plaintiff entirely without knowledge of her rights and continued in such ignorance until long after she had signed away her title thereto, it will be decreed that the transferees of the property at once restore to plaintiff said property and the deeds thereof be set aside; that they be required to account to plaintiff for the use and income of the property for the period during which they have held it, the decree to provide for the protection of innocent parties who have advanced money on the strength of a mortgage given by said transferees to plaintiff.</p> <p>The trustee, who managed the estate during the life of plaintiff’s husband and who continued in possession thereof for several years after his legal right thereto had ceased, was a witness to the will of plaintiff’s husband, amd acting on his advice she employed his son-in-law to probate the will, which was not contested, and act for her in the settlement of the estate. The brother and nieces of the deceased father-in-law, on the theory that they were his heirs at law, put forth claims which were seconded by the erstwhile trustee and plaintiff’s counsel who had his client sign a unilateral agreement to accept a deed from said brother and nieces of an undivided one-half interest in a certain farm free of encumbrance and $3,500 in cash, and in consideration therefor to convey to said brother and nieces the residue of the trust estate.</p> <p>About a year after the death of plaintiff’s husband, the estate having in the meantime been raided in actions brought annually by the trustee in the Supreme Court for the settlement of his accounts, an action for final accounting of said trustee was brought by his son-in-law as attorney to which action the plaintiff herein, though the only person legally interested in the estate, and the brothers and nieces of her deceased father-in-law, were made parties defendant, and an answer was interposed for plaintiff herein with the manifest design to show that she knew the contents of the complaint and to estop her from afterwards questioning the truth of iits allegations concerning the disposition of the trust estate. The final judgment allowed and passed the account of the trustee, approved of his acts as such and, after directing the payment of allowances to the attorneys of the respective parties, decreed, that if sufficient moneys did not remain to pay the commission allowed to the trustee and the.expenses incurred by him on the accounting, and otherwise, he should have a lien on the real estate adjudicated to the pretended heirs of plaintiff's father-in-law and on the income to be derived therefrom in the immediate future, and that he should retain possession of the property and receive the income until payment of his commissions and compensation as allowed. In an action to set aside said judgment for fraud, held:</p> <p>That the fraud in obtaining the decree in said action was not only on plaintiff but on the court itself, and should be set aside.</p> <p>That if the transaction relating to the settlement and deed obtained from plaintiff was clean and above board, no decree of the Supreme Court was required to confirm it; but the deal being questionable and the perpetrators believing it needed fortifying, in their efforts to clinch the affair overreached themselves and branded the whole transaction as a fraud.</p> <p>That the concert of action of the parties engaged in carrying on the trustee’s action for a final accounting and its consummation in the decree entered, furnished the strongest kind of evidence of a conspiracy to deprive the plaintiff herein of her property.</p> <p>That the son-in-law of the trustee, who was made a defendant herein, should restore to plaintiff, with interest, $3,500 which he took from her as' his share of what she received, and the fact that she assigned a mortgage for that amount to the wife of said defendant did not relieve him from liability to make such restoration.</p> <p>That as all the complaint in the trustee’s action asked was the settlement of his accounts, the decree entered therein, so far as it related to the trust estate and purported to adjudicate the title thereto, was no bar to the present action.</p>

<p>Actiott for the construction of a will.</p>

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

<p>Action to rescind a contract of purchase.</p>

<p>Action for a separation upon the grounds of cruelty and nonsupport.</p>

<p>Action to foreclose a mechanic’s lien.</p>

<p>Motion for the imposition of costs as a condition for a new. trial.</p>

<p>Negligence—motor vehicles—'Highway Law, § 286(2) as amended.</p> <p>A violation of subdivision 2 of section 286 of the Highway Law, as amended in 1919, which makes it the duty of a chauffeur to immediately stop on signal from a driver of horses, is negligence.</p> <p>The motion to dismiss the complaint, which contained an allegation that defendant’s motor truck was run in a noisy manner, did not specifically raise the question of a variance between the pleadings and the proof, and, if there was any evidence to support any cause of action, the same should have been denied.</p> <p>The question of fact as to whether defendant had violated the duty imposed upon it by section 286 of the Highway Law being resolved in plaintiff’s favor by the verdict of the jury, it was error to set aside the verdict as against the weight of evidence though it was conceded that no unusual noise was made by defendant’s motor truck.</p>

<p>Appeal from a judgment of the City Court of the city of Mew York, entered upon a verdict for the plaintiff directed by the court, each party having moved for the direction of a verdict.</p>

<p>Appeal by defendant from an order of the City Court of the city of Hew York, denying defendant’s motion to retax an item of $175 in plaintiff’s bill of costs taxed as a necessary disbursement.</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 remaindermen, it was held that the relation of landlord and tenant was revived and continued by the payment and acceptance of the rent, it is a defense to an action to recover taxes that after the order in summary proceedings was obtained defendant tendered the rent and it was accepted by plaintiff “ without prejudice ” to whatever rights defendant had under the final order in summary proceedings; and plaintiff’s motion for judgment on the pleadings should have been denied.</p>

<p>Appeal by defendant from an interlocutory judgment of the City Court of the city of Hew York overruling in part defendant’s demurrer to two separate defenses set up in plaintiff’s reply to two counterclaims pleaded in defendant’s answer.</p>

<p>Appeal by the defendants from a judgment of the Municipal Court of the city of Hew York, borough of the Bronx, second district, entered in favor of the plaintiff after a trial by the court without a jury.</p>

Appeal by the plaintiff from a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, first district, dismissing the complaint for failure to file an ■ amended complaint after a demurrer to the same had been sustained.

<p>Appeal from an order of the Municipal Court of the city of Hew York, borough of Manhattan, fourth district, denying tEe defendant’s motion to vacate a warrant of attachment.</p>

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

<p>Statutes — construction of — intention made manifest by express worn». Indians — Tuscarora reservation — cutting second growth timber on lands of — Indian Law, § 97.</p> <p>A statute will not be construed to operate retrospectively so as to take away a vested right unless that intention is made manifest by express words.</p> <p>Where lands, a part of the Tuscarora Indian reservation, had been occupied and cleared by the ancestors of the present Indian owner prior to the enactment of chapter 175 of the Laws of 1854, now revised as sections 95-99 of the Indian Law, and another member of the tribe openly cut second growth timber on said lands under a claim of right with the knowledge and consent of the owner to whom a consideration was paid for the privilege, defendant is not subject to the provision of section 97 of the Indian Law.</p>

<p>Municipal corporations — contracts — municipal contracts — Labor Law, §§ 3, 4-</p> <p>Where, prior to the execution of a written contract with the city of Buffalo for the construction of a high school building, defendants, in contemplation of receiving the contract, engaged a contractor who proceeded at once with the work of excavating and some of his men worked more than eight hours a day but ceased on objection being made, the complaint, in an action under section 4 of the Labor Law, to have the contract which had been awarded to defendants canceled and declared void for a violation of section 3 of said law, fixing eight hours as a day’s work on all municipal contracts, must be dismissed, but without costs, the action having been brought in good faith by a citizen.</p>

<p>Contracts — conditional—waiving of any and all existing statutes — retention of all payments made on purchase price — Personal Property Law, § 65.</p> <p>Where, by a conditional contract for the sale of household furniture, the vendee, in case of a failure to meet any of the payments on the purchase price, agreed to surrender the property and author-: ized the vendors to retake it without process of law and sell it at public or private sale without notice to the vendee, who also in and by said contract waived any and all existing statutes or any thereafter enacted requiring notice of sale, his right to have the goods sold is not waived; and where, on his default in payments, the property is retaken by the vendors by process of law but not again sold, the vendee is entitled to recover back the amount of the payments actually made by him on the purchase price.</p> <p>A provision of the contract that the vendors might retain all payments made on the purchase price as rent or hire for the use of the goods was ineffectual, and under section 65 of the Personal Property Law the vendee was entitled to recover “ the amount paid on such articles under the contract for the conditional sale thereof.”</p> <p>Whether the agreement of the vendee, in a contract for the conditional sale of personal property, to waive his statutory rights is contrary to public policy, and therefore, void, quaere.</p>

<p>Motion by plaintiff to vacate and set aside the dismissal of the complaint herein and opening, plaintiff’s default.</p>

<p>Habeas Corpus to determine the legality of the commitment of Annis White to the State Industrial School.</p>

<p>Sales — conditional — statute relating to.</p> <p>New trial — motion for, after dismissal .of complaint because of misapprehension of a ruling on trial.</p> <p>Where, on the date of the giving of. an order simply to ship -a machine, the statute relating to contracts for the conditional sale of goods, chattels and articles did not exclude articles to be manufactured, and delivery to the vendee followed the order, the transaction is within the statute.</p> <p>Where a servant of the vendor went to the vendee’s plant, and after presenting a letter of introduction proceeded to remove the entire machine, the last portion of which was loaded on the cars on June 29, 1911, from which date the machine was absolutely under the control of the vendor, it must be held to have been “ retaken ” as of that date, and the vendee then had thirty days 'to redeem.</p> <p>The fact that one of the cars broke down and that a new car was not loaded until July 11, 1911, did not alter the vendor’s control of the machine; and, there being no redemption thereof by the -vendee, the vendor was required under the statute to sell the machine before August 28, 1911, and not having done so a right of action accrued to the vendee or his successor in interest to recover the amount paid on the machine under the conditional contract of sale.</p> <p>The plaintiffs’ counsel having mistakenly concluded that a ruling of the court, that it would hold that the time within which the defendant had to regain possession of the machine and advertise its sale did not begin to run until the defendant had time by the use of ordinary diligence to regain full possession of the machine, disposed of plaintiffs’ case and so stated, whereupon the complaint was dismissed, his motion for a new trial will be granted.</p>

<p>Labor Law—'Sufficiency of notice — common law cause of action — defense of — assumption of risk no longer exists.</p> <p>A notice given before the amendment of 1910 to the Employers’ Liability Act, under which before amendment the question of assumption of risk was a question of fact, is sufficient if it states the physical facts as to how the injury to plaintiff occurred and that the negligence of defendant was its failure to properly instruct, and ordering dangerous work by foremen charged with the duty of superintendence, giving their names, and giving the time and the place of the accident sufficiently adequate to apprise the defendant of the facts so as to enable him to investigate.</p> <p>Where the evidence established a cause of action at common law, the plaintiff was entitled to recover his damages notwithstanding an allegation of the complaint as to the service of said notice, even if it were insufficient under the statute, unless there was error in the charge of the court as to the common law liability of defendant, or the jury were misled as to the questions submitted to them for their decision, or the effect thereof.</p> <p>Where the negligence complained of was defendant’s failure to instruct, and improper instruction by a foreman as to the use of a dangerous machine, and plaintiff’s testimony tended to show that the foreman failed to properly instruct Mm and instructed him to do certain things in the use of the machine which, it was conceded by the foreman and all of defendant’s witnesses, if true, was an improper instruction, involving great risk and not a proper thing to do, but'the defendant, claiming that the danger in obeying said instruction was obvious and apparent, requested the court to make certain charges as to the law appertaining to the assumption of risk, and duly excepted to a charge that the assumption of risk was a question of fact for the jury, and also excepted to the refusal of the court to charge as requested, a motion by defendant to dismiss on the evidence will be denied, and also a motion made after verdict for plaintiff for a new trial on the minutes^ on the ground that the court, in charging and in refusing to charge as to the assumption of risk, committed error.</p> <p>The defense of assumption of risk in an action by an employee for personal injuries due to negligence of the employer no longer exists in this state.</p>

<p>Trusts — surplus income of trust fund—.trustees bound to pay alimony as awarded.</p> <p>Wills — trusts — direction to trustees to pay income for support and maintenance of children during minority — applicatio’n of balance of. income to be applied to plaintiffs judgment.</p> <p>The surplus income of a trust fund, beyond what is necessary for the suitable support and maintenance of the cestui que trust and those depending on him, is liable in equity to the claims of his judgment creditors.</p> <p>While an order fixing alimony at a certain amount a year, entered by consent after the wife of the cestui que trust had obtained a divorce, remains in force-, it is paramount to the rights of his judgment creditors, and until said order is vacated or modified the trustees are bound to pay the wife her alimony as awarded.</p> <p>A son under the wills of his father and mother was entitled to receive annually the sum of $15,000, the combined income of the trusts under said wills, but his mother, intending that the son should support and maintain his children during their minority, directed 'her' trustees to pay the income only providing the son gave satisfactory evidence that he had expended $1,250 quarterly for such support and maintenance. After the recovery of a judgment against the son of $41,324.63, an order was made directing an execution to issue under section 3191 of the Code of Civil Procedure in favor of the judgment creditor against ten per cent of the income in the hands of the trustees, and an execution was issued to the sheriff. On appeal, the order directing the execution to issue was affirmed. In an action by the judgment creditor for the construction of both wills, it appeared that the cestui que trust had been receiving from the trustees the sum of $5,500 annually and of- the balance of the income his wife had received $3,000, his children $5,000, and that the trustees had retained the .remaining $1,500 to cover plaintiff’s execution. Held, that the cestui que trust should be allowed $3,000 for his support, and the payment of $3,000 to the wife being justified the $9,000 balance of the income should be applied to plaintiff’s judgment, it appearing that the children of the cestui que trust were of full age and married and not dependent upon him for support.</p> <p>The decree should provide that plaintiff withdraw the order directing the trustees to pay to the sheriff ten per cent of the income.</p>

<p>Partnership — dissolution of—'transfer of assets — corporations.</p> <p>Where the two members of a partnership at will organized a corporation to which certain of the partnership assets were transferred, the firm retaining the business in certain territories, and it appears that another company in the same line of business had transferred to said firm certain assets not included in the bill- of sale from the partnership to the corporation, and in an action to dissolve the partnership, for an accounting and a division of the profits, if any, there is absolutely no evidence that the partnership was ever dissolved and no accounting made, plaintiff is' entitled to a decree that defendant file an account.</p> <p>That plaintiff stated he was willing to retire, coupled with the fact that he returned to the state whence he and defendant had come, and remained for some time, evidenced neither an agreement to dissolve the partnership nor an abandonment thereof by plaintiff, and the Statute of Limitations did not apply.</p>

<p>Contempt — supplementary proceedings — subpoena duces. tecum — examination of witnesses. '</p> <p>Upon the examination of a witness served with a subpoena duces tecum in proceedings supplementary to an execution, he may be compelled to produce papers or instruments which directly relate to a discovery of property of the judgment debtor, and the judgment creditor is entitled to have such documents put in evidence and subjected to his inspection.</p> <p>Where, -on the examination of such witness, his attorney, who was also the attorney for the judgment debtor, produces the documents called for by the subpoma duces tecum, his persistent refusal to permit them to be put in evidence, though directed by the referee so to do, is a contempt of court.</p>

<p>Action to set aside certain deeds and a general release for fraud.</p>

<p>Vendor and purchaser — failure of vendor to perform — deeds — contracts.</p> <p>Where the vendor, under a contract for the sale of three lots, covenants to lay cement sidewalks guaranteed for five years, water and gas mains, plant shade trees and macadamize the street on which said lots front, without assessment to the purchaser, the latter under a deed containing the same covenants cannot, five years after the time mentioned in the contract of sale, maintain an action for the rescission of the contract, the cancellation of the deed and the recovery of the consideration on the 'sole ground that the vendor had failed to perform his covenant to have the street macadamized.</p> <p>The remedy of the vendee, if any, is an action for damages arising out of the particular part of the covenant which the vendor failed to perform.</p>

<p>Motion for judgment on the pleadings in action on life insurance policy.</p>

<p>Application to compel the delivery of books and papers.</p>

<p>Husband and wife — abandonment — action for separation — dismissal of complaint.</p> <p>Where a wife’s control and management of the home is made unpleasant by the interference of her motlier-in-law, she is justified in leaving her husband and requiring him to support her elsewhere, and his complaint in an action for separation on the ground of abandonment will be dismissed.</p>

<p>Motiox for a new trial under section 999 of the Code of Civil Procedure.</p>

<p>Motion to set aside a verdict.</p>

<p>Appeal from an order assessing and fixing the transfer tax.</p>

<p>Judgment — action on surety company’s bond — res adjudicata.</p> <p>Former adjudication — action on bond — judgment — Laws 1907, ch. 185, as amended in 1908.</p> <p>Where the judgment, in an action on a surety company’s bond brought by creditors of the obligor on behalf of themselves and all others similarly situated, determines merely that the plaintiff and those appearing as claimants in the action are entitled to recover the amount of their respective claims as proved, but said judgment neither adjudges that there are no others who have claims against the bond nor contains an injunctive clause restricting those not parties to the action from the prosecution of their claims, said judgment is not res adjudicata in an action brought upon said bond by one not a party to the first-named action.</p> <p>Where a private banker, who had given a bond under Laws of 1907, chapter 185, as amended in 1908, to faithfully transmit moneys deposited with him for transmission to persons in foreign countries, absconded with fifty dollars left with him by plaintiff to be transmitted to a person in Italy, and an action on his bond is brought to recover said sum, the judgment rendered in the Supreme Court, in an action brought on the same bond on behalf of certain creditors of the banker, suing on behalf of themselves and all others similarly situated, who may come in and become parties and contribute to the expense of the action, which does not provide that no person other than those named therein “ are entitled to recover on said bond,” as the referee found as a conclusion of law in the absence of a finding of fact that only those who appeared in that action have claims against the surety on the bond, is not a bar to the present action.</p>

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

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

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 FTew York, borough of Manhattan, seventh district, rendered in favor of the plaintiff.

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

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

<p>Appeal by defendant from a judgment in favor of plaintiff overruling defendant’s demurrer to the complaint, interposed on the ground that the complaint did not state facts sufficient to constitute a cause of action.</p>

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

Appeal by defendant from a judgment of the Municipal Court of the city of blew York, borough of the Bronx, second district) rendered in favor of the plaintiff after a trial by the court without a jury.

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

. Ajpeeal by the defendant from a judgment of the Municipal Court of the city of Mew York, borough of Manhattan, sixth district, entered upon the direction of a verdict in favor of the plaintiff after a trial before the court and a jury.

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

<p>Payments — acceptance of a past due payment — made in accordance with contract.</p> <p>Vendor and purchaser — contract for sale of real estate—payments on contract — action for breach of contract.</p> <p>By the acceptance of a past due payment the party making it is placed in precisely the same position, so far as the termination of the contract is concerned, as though the payment was made in accordance therewith.</p> <p>Where, by a contract for the sale of a lot owned by defendant for the agreed price of $500, to be paid in semi-annual payments of $50 each from the date of the contract together with interest and taxes, plaintiff made payments .from time to time but was in arrears in the amounts, and defendant continued to receive payments the last of which, made nearly three years after the date of the contract, made a total of $252 paid on the purchase price, and about a year thereafter defendant conveyed the lot to a third person, plaintiff’s damages in an action for a breach of the contract are to be determined by giving her credit for the value of. the lot as found by the jury, under the charge of the court, and charging her with the unpaid purchase price with interest on sums unpaid and the amounts paid by defendant for taxes and sidewalk.</p>

<p>Contracts — with corporation — action against president and general manager of corporation — work, labor and services.</p> <p>Where, after plaintiff had voluntarily left his employment with a corporation, defendant, its president and general manager, in answer to a letter from plaintiff demanding payment of certain</p> <p>, wages, stated in his reply “ I do not dispute your claim and will pay you,” defendant) in an action brought against him on the original contract of employment, is entitled to judgment.</p> <p>Jamison, Semple Co. v. Richard, 78 Mise. Rep. 355, distinguished.</p>

<p>Demurrer to separate defenses contained in answer.</p>

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

<p>Demurrer to complaint.</p>

<p>Bill of particulars — motion for, in action for divorce —■ denial of motion — divorce.</p> <p>The defendant’s motion for a bill of particulars in an action for divorce as to the allegation of the complaint that between certain dates he committed adultery with one whose name was unknown to plaintiff will be denied where the affidavit is made not by defendant but by his attorney.</p>

<p>Mortgages — discharge of — certificate of satisfaction executed liy only one of three executors.</p> <p>Where a mortgage in terms is payable to three executors and trustees, a certificate of satisfaction executed by only one of them does not entitle the mortgage to be discharged of record.</p>