Volume 8 — Bedell

<p>1. Trial—Motion for Direction of Verdict by Both Parties — Effect of Decision by Jury of Specific Questions of Pact Thereafter Submitted by the Court. When both parties ask for the direction of a verdict in their favor and neither request to go to the jury, they submit to the court for decision any question of fact that is presented by the evidence; and where the court refused to accept such submission and sent certain questions of fact to the jury, its verdict on those questions must be given the same effect as is accorded to a verdict on any issues in an action at law, and if its verdict on such questions justified a direction for a judgment in favor of plaintiffs, such judgment will be upheld, provided that no material error was made in rulings on evidence, or in the instructions of the court to the jury.</p> <p>2. Evidence — Erroneous Exclusion of Schedules in General Assignment Offered to Show Condition of Assignors a Month Before the Assignment. Where the schedules of assets and liabilities in a general assignment of a firm for the benefit of its creditors were offered in evidence upon the questions whether the firm was insolvent about a month before its failure and whether its financial condition was then so had that a member of the firm in procuring a draft to be discounted for the firm at that time could have made an honest mistake in representing that the firm was then solvent, it is error to exclude such evidence solely on the ground that proof of the condition of the firm at the time the schedules were made was not material on the question of its condition at the time the draft was discounted.</p>

The facts, so far as material, are stated in the opinion. The application was not properly made in the name of Mrs. Larner. (Carter v. Beckwith, 128 N. Y. 312.) The order of the Special Term was properly made. (Matter of Tracy, 1 Paige, 582.) The order of the Appellate Division was erroneous. (Matter of Chapman, 162 N. Y. 456.) This not being a final order in a special proceeding is not appealable to this court.

The facts, so far as material, are stated in the opinion. The facts set forth in the moving petition having been denied arid disputed, it was improper to grant a peremptory writ of mandamus, in the first instance. (People v. R., W. & O. R. R. Co., 103 N. Y. 95.) The court was without power to order or direct an inspection or examination of the books of the Iron National Bank. It was a national bank operating under a charter which gave the stockholders no such right.

This action was brought to recover the sum of $1,000 alleged to be due on a policy of insurance issued by the defendant to the plaintiff, as beneficiary, upon the life of her husband, George H. Sternaman. The policy recites that the promise to insure was made in consideration of the statements contained in the application, all of which are referred to as warranties-and made a part of the contract.

Court in the first judicial department, entered July 28, 1898, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term. The nature of the action and the facts, so far as material, are stated in the opinion. It does not follow that because the injury to property and the injury to the person resulted from the same cause, separate actions cannot be brought.

<p>Commitment—Must State on its Face Nature of Crime—Penal Code, section 351. '</p> <p>A commitment to answer “upon a charge of violation” of section 351 of the Penal Code is void, and conferred no authority upon the warden to detain relator in prison, as said section refers to fifteen different or distinct acts, some of which are or may be lawful, some felonies and others the subject of merely civil remedies.</p> <p>Gray, J., dissenting.</p>

Appeals, by permission, from orders of the Appellate Division of the Supreme Court in the second judicial department, entered July 17, 1900, which reversed orders of the Special Term setting aside a verdict for the defendant on the ground of newly-discovered evidence and granting new trials. The nature of the actions, the facts, so far as material, and the question certified, are stated in the opinion. This court has jurisdiction of these appeals.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 13, 1901, which reversed an order of Special Term directing the purchasers at a foreclosure sale to deposit with the referee an amount-sufficient to pay certain coupons held by the petitioner. The facts, so far as material, and the questions certified are stated in the opinion.

Miles, deceased, to pay to the appellant herein a balancé alleged to be due upon a claim against such estate, and dismissed the proceeding. The nature of the proceeding and the facts, so far as material, are stated in the opinion. The preliminary motion to dismiss the proceeding made by the respondent’s counsel at the opening of the trial was properly denied. (Redf. on Surr. 83; Crouse v. Wilson, 73 Hun, 356; Code Civ. Pro. § 2728; Matter of Killan, 66 App.

The facts, so far as material, are stated in the opinion. In order to revive the revoked will of 1897 by the codicil it was necessary for the testatrix to give positive expression of her intention so to do, and that in the terms of the instrument itself.

The nature of the action and the facts, so far as material, are stated in the opinion. The referee erred in holding that the judgment in Thomson v. Cruikshank was admissible only to prove a breach of the condition of the bond. (Thompson v. Denner, 16 App. Div. 160: Douglass v. Ferris, 138 N. Y. 195; French v. Dauchy, 134 N. Y. 543; Perkins v. Stimmel, 114 N. Y. 359; Gerould v. Wilson, 81 N. Y. 573; Deobold v. Oppermann, 111 N. Y. 531; McMahon v. Smith, 24 App.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third, judicial department, entered Movember 22, 1900, affirming a judgment in favor of plaintiff entered upon a verdict and an Order denying a motion for a new trial.</p> <p>On the 29th of May, 1897, Harry Platt, a lad between eleven and twelve years of age, was run over and killed by ah electric car, as he was crossing the tracks of the defendant on Broadway at its intersection with Horth Lansing street in the • city of Albany. The plaintiff, as administrator of his estate, brought this action to recover damages, upon the ground that the defendant was negligent in many ways, and among others in operating .the car in question without a fender. The defendant, in its answer, denied negligence on its part, charged that the death of the decedent was caused by his own negligence, and alleged that it used due diligence to equip its cars with fenders as soon as permitted by the common council. The jury found a verdict for the plaintiff, and the judgment entered thereon ivas affirmed by the Appellate Division, one of the justices dissenting.</p> <p>As matter of law, the decedent- was grossly negligent and careless. (Purdy v. N. Y. C. R. R. Co., 87 Hun, 97; Doyle v. Albany Railway, 5 App. Div. 601; Martin v. T. A. R. R. Co., 27 App. Div. 52; Scott v. T. A. R. R. Co., 145 N. Y. 152; Savage v. Gerstner, 36 App. Div. 220; Thompson v. B. R. Co., 145 N. Y. 196; Getman v. D., L. & W. R. R. Co., 162 N. Y. 21; Burke v. N. Y. C. & H. R. R. R. Co., 73 Hun, 32; McQuade v. Met. St. Ry. Co., 17 Misc. Rep. 154; Berzevizy v. D., L. & W. R. R. Co., 19 App. Div. 309.) There were errors in the rulings on the trial. (McLaughlin, v. Webster, 141 N. Y. 76; Stabenau Case, 15 App. Div. 408; 155 N. Y. 511; Bittner Case, 153 N. Y. 776; Leary v. F. R. R. Co., 53 App. Div. 52.)</p> <p>The finding of the jury having been on questions of fact, properly submitted, is conclusive. (Sire v. Rosenquest, 28 App. Div. 242; Newman v. Wilson, 78 Hun, 295; Butler v. Third Ave. R. R. Co., 16 Misc. Rep. 679; People v. Kerrigan, 147 N. Y. 210.) It is the duty of this court to affirm the judgment if, in any reasonable view of the case, the verdict can be sustained. (Fejdowski v. D. & H. C. Co., 168 N. Y. 505; Fritz v. Tompkins, 168 N. Y. 524; Blum v. Langfeld, 37 App. Div. 590; Archer v. N. Y., N. H. & H. R. R. Co., 106 N. Y. 601; Fandel v. Third Ave. R. R. Co., 15 App. Div. 427; 162 N. Y. 598.) The negligence of the defendant was clearly established on the trial. (Wihnyk v. S. A. R. R. Co., 14 App. Div. 515; Tholen v. B. C. R. R. Co., 10 Misc. Rep. 283; Kleiner v. Third Ave. R. R. Co., 162 N. Y. 193; Fandel v. Third Ave. R. R. Co., 15 App. Div. 426; Young v. Atl. Ave. R. R. Co., 10 Misc. Rep. 542; Enfield v. N. J. R. R. Co., 49 App. Div. 470; Killen v. B. H. R. R. Co., 48 App. Div. 557; Thurber v. H., etc., R. R. Co., 60 N. Y. 326.) The freedom of the plaintiff’s intestate from contributory negligence was fully established on the trial. (Wihnyk v. Second Ave. R. R. Co., 14 App. Div. 515; Zwack v. N. Y., L. E. &. R. R. Co., 160 N. Y. 362; Stone v. D. D., etc., R..R. Co., 115 N. Y. 104; Mason v. Atl. Ave. R. R. Co., 4 Misc. Rep. 291; 140 N. Y. 657; Hyland v. Burns, 10 App. Div. 386.) The testimony conclusively showed that the boy exercised some care and caution before attempting to cross the tracks, and it was for the jury to say whether he exercised the proper degree of care, taking into consideration his age, and all the other facts and circumstances of the case. (Henavie v. N. Y. C. & H. R. R. R. Co., 166 N. Y. 280; Greany v. L. I. R. R. Co., 101 N. Y. 419, 420; Beckwith v. N. Y. C. & H. R. R. R. Co., 54 Hun, 446; 125 N. Y. 759; McClain v. B. C. R. R. Co., 116 N. Y. 460; Stone v. D. D., etc., R. R. Co., 115 N. Y. 104; Parsons v. N. Y. C. & H. R. R. R. Co., 113 N. Y. 355; Weidmger v. Third Ave. R. R. Co., 40 App. Div. 198; Seeley v. N. Y. C. & H. R. R. R. Co., 8 App. Div. 402; Black v. S. I. R. R. Co., 40 App. Div. 239; Towner v. B. H. R. R. Co., 44 App. Div. 628.)</p>

Also, appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 4, 1901, which affirmed a final judgment dismissing the complaint entered upon an order of the General Term sustaining a demurrer thereto upon appeal from an interlocutory judgment of Special Term overruling such demurrer. The nature of the action and the facts, so far as material, are stated in the opinion.

<p>Appeal from a judgment, entered June 2,1900,- in favor of defendant, upon an order of the Appellate Division of the Supreme Court in the fourth judicial department overruling plaintiff’s exceptions, ordered to be heard in the first instance by the Appellate Division, denying a motion for a new trial and directing judgment for defendant upon the verdict.</p> <p>The nature of the action and the facts, so. far as material, are stated in the opinion.</p> <p>Defendant made and was bound by a contract with plaintiff to transport the horses all the way to Bridgeport by express, and its breach of this condition by transporting them from New York to Bridgeport by freight, renders it liable and raised a question sufficient to take the case to the jury. (Pavitt v. L. V. R. R. Co., 153 Penn. St. 302; Jennings v. R. R. Co., 127 N. Y. 438; Riley v. R. R. Co., 34 Hun, 97; Saltzman v. R. R. Co., 65 Hun, 448; Swift v. Steamship Co., 106 N. Y. 206; Root v. R. R. Co., 76 Hun, 23; Hope v. Boland, 58 N. Y. 380; Chapin v. Dobson, 78 N. Y. 74; Lowenstein v. Lombard, Ayres & Co., 164 N. Y. 324; Talcott v. R. R. Co., 159 N. Y. 461,) The oral contract that the horses should be delivered by ten o’clock on the evening of the fifth is enforceable, and for breach of it defendant is liable. (Riley v. R. R. Co., 34 Hun, 98; Saltzman v. R. R. Co., 65 Hun, 448; Jennings v. R. R. Co., 127 N. Y. 438; Swift v. Steamship Co., 106 N. Y. 206; Root v. R. R. Co., 76 Hun, 23; Pavitt v. L. V. R. R. Co., 163 Penn. St. 302; Uptegrove v. R. R. Co., 16 Misc. Rep. 14; Robertson v. N. S. S. Co., 139 N. Y. 416; Goodrich v. Thompson, 44 N. Y. 324; Hope v. Boland, 58 N. Y. 380.) It was a question for the jury to say whether the parties intended to be bound by the oral or by the alleged written contract. (Bostwick v. R. R. Co., 45 N. Y. 712; Swift v. Steamship Co., 106 N. Y. 206; Root v. R. R. Co., 76 Hun, 23; Park v. Preston, 108 N. Y. 434; Guilluame v. G. T. Co., 100 N. Y., 491; Riley v. N. Y., etc., Ry. Co., 34 Hun, 97; Saltzman v. N. Y. & L. E. Ry. Co., 65 Hun, 448; G. F. Ins. Co. v. M. & C. Ry. Co., 72 N. Y. 90; Lowenstein v. Lombard, Ayres & Co., 164 N. Y. 324; Strohn v. Ry. Co., 21 Wis. 554.) The jury had a right to presume and find negligence on the part of defendant from the undisputed facts of the delivery by plaintiff to defendant and the acceptance by it, as a common carrier, of the horses at Buffalo in good condition to be transported to Bridgeport, and the damaged condition of the horses when delivered at Bridgeport. (Bowden v. Fargo, 2 Misc. Rep. 551; 68 Hun, 607; Koenigsheim v. H. & A. P. Co., 17 Wkly. Dig. 405; Seybolt v. Railway Co., 95 N. Y. 562; J. R. Mfg. Co. v. N. H. S. Co., 50 N. Y. 121; Canfield v. Railway Co., 93 N. Y. 532; Park v. Preston, 108 N. Y. 434; Cummings v. Wood, 44. Ill. 416.) Defendant not only failed to show itself free from negligence, but there is an abundance of evidence from which the jury could find negligence with which defendant is chargeable as a cause of such injuries and damage. (Regan v. Ry. Co., 61 N. H. 579; Harris v. Ry. Co., 20 N. Y. 233; Clark v. Ry. Co., 14 N. Y. 570; Goold v. Chapin, 20 N. Y. 259; Johnson v. Ry. Co., 33 N. Y. 612; Fisk v. Newton, 1 Den. 45; I. C. Ry. Co. v. Adams, 42 Ill. 474; T. R. Co. v. Hamilton, 76 Ill. 393; Dunn v. Ry. Co., 68 Mo. 268; Ambraus v. Ry. Co., 87 Wis. 485.) With the injuries and damage established, and negligence on the part of the carrier shown, to which as a cause the injuries and damage can reasonably be imputed, the question as to whether they were so occasioned is one of fact for the jury. (Canfield v. Railway Co., 93 N. Y. 532.) The alleged written contract is void and unenforceable for the reasons that it was not properly executed or delivered; it is without consideration; it is unreasonable and places the plaintiff entirely at the mercy of defendant, and it purports to release a common carrier for the consequences of his gross negligence. (Nelson v. Ry. Co., 48 N. Y. 498; Bissell v. Ry. Co., 25 N. Y. 442; Maynard v. Ry. Co., 71 N. Y. 180; Belger v. Dunsmore, 51 N. Y. 166; Zimmer v. Ry. Co., 137 N. Y. 460; Nicholas v. Ry. Co., 89 N. Y. 370; Russell v. Allerton, 108 N. Y. 288; Grand v. Livingston, 4 App. Div. 589.) The alleged written contract does not cover the negligence of defendant, which was the cause of the damages. (Kenney v. Railway Co., 125 N. Y. 425; Wilson v. R. R. Co., 97 N. Y. 87; Holsapple v. R. R. Co., 86 N. Y. 275; Pratt v. R. R. Co., 102 Mass. 157; R. R. Co. v. Pratt, 89 U. S. 123; Smith v. R. R. Co., 12 Allen, 531; Nicholas v. R. R. Co., 89 N. Y. 370; Ayers v. R. R. Co., 71 Wis. 372; H. S. Co. v. R. R. Co., 131 Ind. 575.)</p> <p>The transportation of the horses was governed by the written contract between the parties. (Root v. R. R. Co., 76 Hun, 23; Jennings v. G. T. Ry. Co., 127 N. Y. 447; Shelton v. Merchants’ Despatch, 59 N. Y. 228; Donovan v. S. O. Co., 155 N. Y. 112; Zimmer v. R. R. Co., 137 N. Y. 460; Hill v. R. R. Co., 73 N. Y. 351; G. Ins. Co. v. R. R. Co., 72 N. Y. 90; 2 Parson's on Cont. 548, 549; Fire Ins. Co. v. R. R. Co., 72 N. Y. 90; Long v. R. R. Co., 50 N. Y. 76; Hill v. R. R. Co., 73 N. Y. 351.) The defendant was relieved from liability for the injury to the horses by the express provisions of the contract. (Westcott v. Fargo, 61 N. Y. 553; Cragin v. R. R. Co., 51 N. Y. 61; Nicholas v. R. R. Co., 89 N. Y. 370.) There is no proof on which the jury could have found that the plaintiff sustained any damage. (Zimmer v. R. R. Co., 137 N. Y. 460; Hill v. R. R. Co., 144 Mass. 284; Hart v. Penn. R. R. Co., 112 U. S. 340; Coupland v. R. R. Co., 61 Conn. 581; Hutchinson on Carriers [2d ed.], § 125.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The defendant’s requests to dismiss, based upon the service of the summons being bad, should have been granted. (Page v. Shainwald, 52 App. Div. 349; Penal Code, § 268; L. 1897, ch. 614, § 41.) The statute declaring the first Monday of September, known as “ Labor Day,” to be a legal holiday, does not affect the service of a summons on that day.

The facts, so far as material, are stated in the opinion. Henry Baldwin as an individual did not become obligated to Sabrina Warner by force of the certificates unless he agreed to vbe bound thereby.

<p>Appeal from a judgment entered February 13, 1901, upon an order of the Appellate Division of the Supreme Court in the first judicial department, overruling defendant’s exceptions, ordered to be heard in the first instance by the Appellate Division, denying a motion for a new trial and directing judgment upon a verdict directed by the court at a Trial Term.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The plaintiff gave an express warranty that the goods were equal in quality to the sample. (2 Mechem on Sales, § 1237; Salisbury v. Stainer, 19 Wend. 159; Beirne v. Dord, 5 N. Y. 95; Ames v. Jones, 77 N. Y. 614; F. C. Co. v. Metzger, 118 N. Y. 260; Gurney v. A. & G. W. R. R. Co., 58 N. Y. 358; Brigg v. Hilton, 11 Daly, 385; Kent v. Friedman, 101 N. Y. 616; Zabriskie v. C. V. R. R. Co., 131 N. Y. 72; Mason v. Smith, 130 N. Y. 474; Chapman v. Murch, 19 Johns. 290.) If there is no express warranty that the goods are equal to sample there is an implied warranty against all defects not discoverable upon the inspection contemplated by the contrast, and this contract contemplated that there should be no inspection except at the option of the vendees, so that, except as to goods actually inspected by them, all defects are to be treated as latent. (K. B. Co. v. Hamilton, 116 U. S. 108; Jones v. Just, L. R. [3 Q. B.] 197; Rodgers v. Niles, 11 Ohio St. 48; Brenton v. Davis, 8 Blackf. 317; 2 Mechem on Sales, § 1079; Muller v. Eno, 4 Duer, 425.) If there is no warranty, then the direction of the verdict for the plaintiff was error. (Ballou v. Parsons, 11 Hun, 602; Morris v. Wibaux, 159 Ill. 627; Boorman v. Jenkins, 12 Wend. 566; Fogel v. Brubacker, 122 Penn. St. 7; 2 Mechem on Sales, § 1377; Wright v. Bank of Metropolis, 110 N. Y. 237; Griggs v. Day, 158 N. Y. 1, 22; Reilly v. Dodge, 131 N. Y. 153; Doane v. Dunham, 79 Ill. 131; Wisner v. Ocumpaugh, 71 N. Y. 113; Haddon v. Lundy, 59 N. Y. 320.) Defendants’ exceptions should be sustained. (Brigg v. Hilton, 99 N. Y. 526; 2 Mechem on Sales, 1093; Holt v. Pie, 120 Penn. St. 425; Beach v. R. R. R. Co., 37 N. Y. 457; Hoe v. Sanborn, 21 N. Y. 555; Prentice v. Fargo, 53 App. Div. 612.)</p> <p>The appellants are not entitled to argue, in this court, that there was an implied warranty and that certain defects were latent. (Bierman v. C. M. Co., 151 N. Y. 482.) The defendants are not now in a position to claim that it was error to refuse to dismiss the complaint. ( Wangner v. Grimm, 169 N. Y. 421.) In view of the admission in the answer, as well as of the failure to allege in the counterclaim a contract of express warranty and of the position taken at the close of the trial that no contract had been proven, the court did not err in refusing to submit the counterclaim to the jury. (Fleischmann v. Stern, 90 N. Y. 110; Paige v. Willet, 38 N. Y. 28; Truesdell v. Sarles, 104 N. Y. 164; 2 Chitty’s Plead. [16th Am. ed.] 261; Diefendorf v. Gage, 7 Barb. 18; Taylor v. Ballard, 17 N. Y. S. R. 598; Fanning v. I. S. Co., 89 Hun, 146; Hoe v. Sanborn, 21 N. Y. 552.) The court was right in holding that the defendants had failed to prove that the plaintiff, as receiver, had given to the defendants an independent contract of warranty, collateral to the contract of sale and manifestly intended to survive acceptance of the bicycles. (Carlton v. Lombard, Ayres & Co., 149 N. Y. 137; Studer v. Bleistein, 115 N. Y. 316.)</p>

<p>1. Appeal—Final Order. An order of the Appellate Division reversing an order of the Special Term granting an application made under section 2471a of the Code of Civil Procedure to compel the delivery of books and papers to a public officer and which denied the application is a final order in a special proceeding and is reviewable by the Court of Appeals.</p> <p>2. Constitutional Law — Commissioner of Jurors of Kings County a County Officer—Const. Art. 10, § 2. The office of commissioner of jurors in the county of Kings having been created by chapter 322 of the' Laws of 1858, was a county office at the time the Constitution, of 1894 wont into effect, and chapter 602 of the Laws of 1901, in so far as it transfers the power of appointing its incumbent from the local authorities to the justices of the Appellate Division of the Supreme Court in the second j udicial department, and hence to state authorities, is in violation of section 2 of article 10 of the Constitution restricting the power of the legislature to appoint local officers and to provide for their appointment by central or state authority, and is unconstitutional and void.</p> <p>3. Proceedings to Compel Delivery of Books and Papers to Public Officer — Certificate of Appointment not Prima Facie Evidence of Right Thereto. A certificate of appointment to public office made under and pursuant to a statute does not establish a pi ima facie right to the office and to the books and papers pertaining thereto so as to prevent the question of the validity of the statu e from being raised and decided in proceedings under section 2471a of the Code of Civil Procedure to compel the delivery of the books and papers to the appointee, and, if the statute is void, no rights are conferred thereby and the application must be denied.</p>

The facts, so far as material, are stated in the opinion. The claim made by the respondent that the established debt of her deceased guardian of itself, without identification of the trust fimd specifically, entitled her to the relief sought is erroneous. (Matter of Van Slooten v. Dodge, 145 N. Y. 327; Shorter v. Mackey, 13 App. Div. 20; Matter of Cavin v. Gleason, 105 N. Y. 256; Cole v. Cole, 54 App.

Also appeal from an order made at a Trial Term, January 13, 1902, denying defendant’s motion for a new trial on the ground of newly-discovered evidence. The facts, so far as material, are stated in the opinion.

The nature of the action and the facts, so far as material, are stated in the opinion. The court having refused to allow the case to go to the jury, and having directed a verdict against the plaintiff, she is entitled to the most favorable inferences deducible from the evidence, and the facts are to be treated as established in her favor.

The plaintiff instituted this action to recover damages of the defendants for the alleged conversion by them of 570 bonds of the Birmingham, Sheffield and Tennessee River Railway Company, a corporation of the state of Alabama.

Cramer as general guardian of Grace E. Cramer, now deceased. The facts, so far as material, are stated in the opinion. ' The testator is presumed to use words in their natural and well-defined legal sense. (Matter of Hallett, 8 Paige, 375; Hoyt v. Van Schaick, 3 Barb.

The nature of the action and the facts, so far as material, are stated in the opinion. The use of a city street for the purposes of a street surface railroad does not impose an added burden upon the property rights of the owners of the fee of the street.

Motion to send back the return on appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 6, 1901, reversing a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury and granting a new trial. The motion was made in order that a motion might be made to such Appellate Division to amend such return.

• The nature of the action and the facts, so far as material, are stated in the opinion. The premium notice statute of Hew York only requires notice to he given of stated payments due on the policy, and has no application to a note given for or in settlement of a premium. (DeFrece v. Ins. Co., 136 N. Y. 144; People v. K. L. Ins. Co., 103 N. Y. 480; Merriam, v. K. M. Assn., 138 N. Y. 116; McDougal v. P. S. L. Ins. Co., 135 N. Y. 551; Stuart v. U. M. L. Ins.

The facts found by the referee are substantially as follows: Prior to December 14th, 1891, the defendant Simonson and one Luie F. Yorhis, respectively, had claims in the nature of mechanic’s liens upon the real estate for an account of the rents and profits of which this action was brought. Hollister, the plaintiff, had an interest in the claim of said Yorhis.

The nature of the action and the facts, so far as material, are stated in the opinion. For the purposes of enforcement a tax constitutes a debt. (Matter of Columbian Insurance Co., 3 Abb. Ct. App. Dec. 239; Matter of A. I. C. Co., 19 App.

the will of John P. Conlon, deceased. John P. Conlon died on the 5tli day of April, 1899, leaving him surviving his widow, the defendant Eva K. Conlon, but no parent or descendant, no brother or sister or descendant of brother or sister. He died seized of the real property described in the complaint in this action which had come to him by descent from his father, Samuel Conlon.

The nature of the action and the facts, so far as material, are stated in the opinion. The verification of the lien in question was sufficient. (Reeves v. Seitz, 47 App.

Cornell, deceased. The facts, so far as material, are stated in the opinion. The appeal of Crispell individually and as executor to the Appellate Division should have been dismissed. (Beebe v. R. L. H. & P. Co., 6 App. Div. 187; Matter of Allen, 81 Hun, 91; Hackley v. Hope, 2 Abb. Ct. App.

Brinckerhoff and Frank T. Wall as executors and trustees under the will of Michael W. Wall, deceased. The facts, so far as material, are stated in the opinion. The appellant is not in a position to make his claim, because he did not raise it at the trial. (Serviss v. McDonnell, 107 N. Y. 266; Snider v. Snider, 160 N. Y. 151; Stapenhorst v. Wolff, 65 N. Y. 596.)

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 14, 1901, upon the submission of a controversy under section 1279 et seq. of the Code of Civil Procedure.</p> <p>The nature of the controversy and the facts, so far as material, are stated in the opinion.</p> <p>The contract of insurance will be strictly construed against the defendant and, if uncertain, will be construed most favorably to the insured. (Rann v. H. Ins. Co., 59 N. Y. 387; Kratzenstein v. W. Assur. Co., 116 N. Y. 54; Sneck v. T. Ins. Co., 88 Hun, 94; affd., 156 N. Y. 669; Paul v. T. Ins. Co., 112 N. Y. 472; Griffey v. N. Y. C. Ins. Co., 100 N. Y. 417; Hoffman v. A. Ins. Co., 32 N. Y. 405; Herrman v. M. Ins. Co., 81 N. Y. 184; Doer v. Dixon, 9 East, 15; Marvin v. Stone, 2 Cow. 781.) The provisions of the policy and the constitution and by-laws of the defendant must be read together, and so read, constitute a contract of insurance issued by the defendant herein. (Eagan v. Eagan, 58 App. Div. 253; Elliot v. Mutual Ben. Life, 76 Hun, 378; Demings v. Supreme Lodge K. of P., 131 N. Y. 522; Collins v. Collins, 30 App. Div. 341; Fink v. D., L. & W. Mut. A. Soc., 57 App. Div. 507; Matter of E. R. F. L. Assn., 131 N. Y. 354.) Under the contract of insurance a liability exists on the part of the defendant to pay the sum of $2,500. (Tyrrell v. Mayor, etc., 159 N. Y. 239; McCormack v. Mayor, etc., 14 Misc. Rep. 272-275; Kratzenstein v. W. Assur. Co., 116 N. Y. 54; Sneck v. T. Ins. Co., 88 Hun, 94; Paul v. T. Ins. Co., 112 N. Y. 472; Reynolds v. C. F. Ins. Co., 47 N. Y. 597; Hoffman v. A. Ins. Co., 32 N. Y. 405-413; Darrow v. F. F. Society, 116 N. Y. 537; Herrman v. M. Ins. Co., 81 N. Y. 184.)</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, made December 6, 1901, which affirmed an interlocutory judgment entered upon a decision of the court on trial at Special Term sustaining a demurrer to the third defense set up in the answer on the ground that the same “ is insufficient in law upon the face thereof.” The following is the question certified“.Is the third answer and defense set up in defendant’s…

The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in refusing to allow the defendant to show that either the plaintiff or his former attorney had bribed or attempted to bribe the ivitness Rinlt to give false testimony in favor of the plaintiff. (Nowack v. M. S. Ry. Co., 166 N. Y. 433; McHugh v. McHugh, 186 Penn.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, made July 25,1901, which affirmed in part and reversed in part an order of Special Term denying a motion to require James T. Nelson, as receiver, to pay over certain money and for other relief. The facts, so far as material, and the questions certified, are stated in the opinion.

This action was brought to recover damages sustained by the plaintiff through the death of her intestate caused, as alleged, by the negligence of the defendant. The answer, after a specific denial of all the allegations of negligence on the part of the defendant, alleged that the death of the decedent was caused by his own negligence and that of his fellow-servants. At the village of Sidney, in this state, the defendant’s railway intersects that of the Delaware & Hudson.

<p>1. Corporations — Director’s Liability for Debts — Notice. The failure to give to a director of a corporation within the year 1899 notice of an intention to hold him personally liable for debts existing and due at the time of defaults in filing annual reports, the first of which occurred in the preceding year and less than three years before action brought against him therefor, is no defense to the action, under section 34 of the Stock Corporation Law (L. 1899, ch. 354), declaring that no director shall be liable to any corporate creditor for failure to make or file an annual report unless he is given notice of an intention to hold .him responsible within three years of the default, but providing that any such liability, because of default now existing, may be enforced by action begun within the year 1899 or begun thereafter, if within such year written notice of intention to enforce such liability shall be given as above provided, since the purpose of the proviso was to give a creditor holding a debt'which had existed for more than three years at the time of the passage of the statute, but which was not then due, and would otherwise have been cut off, an opportunity to save his claim by action or notice within that year.</p> <p>2. Statute Applicable to Directors of Foreign Corporations. The provisions of the statute are applicable to foreign as well as domestic corporations, although section 34 does not in terms refer to them, since that section regulates the enforcement of the liability created by section 30, which includes both classes, and the two sections should be read together.</p> <p>3. Pleading — Specific Defense. A defense in an action against a director of a corporation to enforce his personal liability for debts of the corporation because of failure to file annual reports, which specifically alleges that the debts were paid by a third party, and if paid by the plaintiff were paid by him as agent therefor, is sufficient in law upon its face—that it might be proved under the general denial in the answer does not prevent it from being specifically pleaded and render it demurrable.</p>

II. Trask, deceased. The facts, so far as material, are stated in the opinion. The provision for a sale of certain of the real property at public sale provided for in the 3d paragraph of the will does not survive the death of the widow of the deceased.

Appeal, by permission, from air order of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 7, 1901, which' affirmed two orders of the Erie County Court, one directing the appellant herein to assign to the respondent a certain judgment of foreclosure and sale, bond and mortgage, and the other appointing a receiver in the same action.

The nature of the action and the facts, so far as material, are stated in the opinion. Defendant Uhlmann stood in no contractual or personal relation to plaintiff's assignors. His situation was that of an unpaid agent of the bank, having no powers outside of the board of which he was a member. (Bank v. Millard, 10 Wall. 115; Marine Bank v. Fulton Bank, 2 Wall. 252; Thompson v. Riggs, 5 Wall. 663; Charitable Corp. v. Sutton, 2 Atk. 400; Spering's Appeal, 71 Penn.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered February 4, 1901, affirming a judgment entered upon a verdiet directed by the court in favor of plaintiff for a part of the amount claimed, and dismissing the complaint as to the remainder.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>It was the plain right of the plaintiff to present to the jury the question whether or not the transfer by the defendant to the HEolian Oonqiany was a merely colorable device to cover an intent by which the defendant might, through another, actually sell the goods upon which it was bound to pay tribute to Wilson, and might by the same means escape the duties of its covenant. (Lee v. Adsit, 37 N. Y. 78; L. Mfg. Co. v. S. G. Ins. Co., 88 N. Y. 591; McMaster v. Ins. Co., 55 N. Y. 222; Hankinson v. Vantine, 152 N. Y. 30; Folinsbee v. Sawyer, 157 N. Y. 196; Town of New Berlin v. Town of Norwich, 10 Johns. 229; Barreda v. Silsbee, 21 How. [U. S.] 146; Montrose v. Wannamaker, 21 Abb. [N. C.] 478; King v. O’Brien, 1 J. & S. 49; McK. P. Co. v. F. I. Co., 16 J. & S. 442; M. W. Co. v. Deinelt, 133 Penn. St. 585.) The license by Wilson to the defendant was non-assign able. (Putnam v. Hollender, 6 Fed. Rep. 882; Gibbs v. Hoefner, 19 Fed. Rep. 323; T. I, etc., Factory v. Corning, 14 How. [U. S.] 193; Lock v. Lane, etc., Co., 35 Fed. Rep. 289; Oliver v. R. C. Works, 109 U. S. 75; Hapgood v. Hewitt, 119 U. S. 226; Marsh v. Dodge, 66 N. Y. 533; 4 Hun, 278; Sizer v. Ray, 87 N. Y. 220; Belding v. Turner, 4 Fish. Pat. Cas. 446; Emigh v. Chamberlain, 2 Fish. Pat. Gas. 192; 1 Biss. 367.) The holder of a non-assignable license is liable for the prescribed royalty thereon if he in any manner arranges for or suffers the exercise of the privilege by another. (Marsh v. Dodge, 66 N. Y. 533; 4 Hun, 278; Wilde v. Smith, 8 Daly, 196; Sizer v. Ray, 87 N. Y. 220.) The defendant’s liability for the use by its grantee of its license privilege is not affected by the incident that other persons became concerned in such use. (Lightner v. B. & A. R. R. Co., 1 Lowell, 338; Sizer v. Ray, 87 N. Y. 220.) It may well be, and. has been recog-* nized, that at the instance of a' stranger a contract may be found to be a fraudulent evasion of his rights, even though some of the parties thereto acted in good faith, and the contract be sustained inter pastes. (Barreda v. Silsbee, 21 How. [U. S.] 146.)</p> <p>The plaintiff must recover secundum allegata etprobata, if at all. (Arnold v. Angell, 62 N. Y. 508; Neudecker v. Kohlberg, 81 N. Y. 296; Degraw v. Elmore, 50 N. Y. 1; Ross v. Mather, 51 N. Y. 108; Walter v. Bennett, 16 N. Y. 250; Gould v. C. C. Nat. Bank, 86 N. Y. 75; Jugla v. Trouttet, 120 N. Y. 21.) The terms and language of the contract are clear; it contains no obscure technical terms and no latent ambiguities, rendering the subject-matter doubtful; therefore the interpretation of its meaning belongs to the court alone. (Brady v. Cassidy, 104 N. Y. 147, 155; Dwight v. G. Ins. Co., 103 N. Y. 350; Jerome v. Q. C. C. Co., 163 N. Y. 351, 357; Glacius v. Black, 57 N. Y. 567.) The learned trial justice construed the contract correctly, limiting plaintiff’s recovery under the proof and the contract to sales actually made by the defendant. (Jugla v. Trouttet, 120 N. Y. 21; Newell v. Wheeler, 36 N. Y. 244; Bruce v. F. Nat. Bank, 79 N. Y. 154; Zorkowski v. Astor, 156 N. Y. 398; H. C. Co. v. P. C. Co., 75 U. S. 276; Goldmark v. M. M. Co., 44 App. Div. 35; Gray v. N. S. S. Co., 115 U. S. 116; Hapgood v. Hewitt, 119 U. S. 226; Fernschild v. Y. B. Co., 5 App. Div. 29; Carnaghan v. E. & P. O. Co., 32 N. Y. S. R. 1117.) 27o question of fact for the jury was presented. (H. & G. M. Co. v. H. & W. M. Co., 127 N. Y. 258; Gray v. N. S. S. Co., 115 U. S. 116.) If there must be a reversal and a new trial, the entire judgment should be reversed and the whole cause of action tried anew. (Goodsell v. W. U. Tel. Co., 109 N. Y. 147; Wolstenholme v. W. F. Mfg. Co., 64 N. Y. 272; Nat. Bd. of M. U. v. Nat. Bank of R., 146 N. Y. 64.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The defendant’s proof fails to establish a certain and definite contract with her and Mr. Hanford upon a valuable consideration. The proof falls short of such an agreement.

of defendant entered upon a dismissal of the complaint by the court on trial at Special Term. This action was instituted by the plaintiff, as a substituted trustee under the will of Samuel Freeman, deceased, to compel her predecessor in the trust, the trustee named in the will, to account for the moneys and property of the trust estate and to pay over such as he may be found chargeable with.

<p>Motion to amend remittitur and for reargnment. (See 170 N. Y. 162.)</p>