Volume 8 — New York Miscellaneous Reports

<p>Appeal by defendants from judgment entered upon findings by a judge at Special Term.</p>

Cebtioeaei to review proceedings of the commissioners of taxes and assessments in relation to an assessment for personal property against relators as executors and trustees of the estate of David Dows, deceased.

<p>Where the upper portion of a building is rented to a tenant under an agreement by which the landlord is to do all repairs, and the latter promises, but fails to repair the roof, whereby the tenant’s furniture and chattels are damaged, the measure of damages is the amount of damage done to the tenant’s property.</p>

<p>If a driver, as matter of necessity, must turn his truck on a track, the motorman on an electric car cannot negligently run him down, but must exercise care to avoid a collision.</p> <p>Plaintiff, who was driving a heavily loaded truck, from which pieces of iron projected, made a long sweep to avoid striking a standing car, which brought the truck upon the other track. As the truck was leaving that track and was almost out of it, the front wheel was struck by an electric car, and plaintiff was thrown off and injured. Held, that plaintiff could not be said to be guilty of contributory negligence as matter of law, but such question was one for the jury.</p>

<p>Appeal from judgment dismissing the complaint.</p>

<p>Appeal from judgment in favor of the plaintiffs.</p>

<p>Appeal from judgment in favor of the plaintiff, entered upon a verdict, and from order denying motion for a new trial.</p>

Action to procure a decree directing the application of the ■income of a trust fund, created by the will of the father of the defendant William B. Wetmore, to the payment of alimony under a decree of divorce obtained against him by the plaintiff.

This is an application to a justice of the Supreme Court, under section 88 of the “Election Law,” chapter 680 of the Laws of 1892. The petitioner, James H. Foley, has been nominated for the office of town clerk in the town of Watervliet.

<p>Actions to recover certain installments of rent under an agreement between the city and the defendant corporation.</p>

<p>Appeal from order granting motion for a bill of particulars.</p>

<p>Appeal from judgment entered on verdict for plaintiff and from order denying new trial.</p>

<p>Appeal from judgment in favor of the plaintiff, entered upon a verdict directed by the court.</p>

<p>A condition in an order opening a default, requiring the defendant to give a bond with sureties for any judgment that may be recovered in the action, is not unreasonable, where the motion for such order was not made until after the granting of an order in supplementary proceedings, and the delay is not excused.</p>

<p>Appeal from judgment in favor of the plaintiff, entered upon a verdict, and from order denying motion for a new trial.</p>

<p>Appeal from judgment, entered on verdict by direction of the court, and from an order denying new trial.</p>

<p>Where a motion for a new trial, on the ground of newly discovered evidence, is made on a case and exceptions and affidavits and denied, the successful party on affirmance of the order of denial is entitled to full costs.</p>

<p>In an action upon a promissory note brought by a transferee thereof against the maker, testimony of the latter as to conversations with the payee, since deceased, in relation to the note, is inadmissible under section 839 of the Code.</p>

<p>In an action to recover the purchase price of goods sold hy the receivers of a corporation or partnership, who are conducting the business for the benefit of its creditors, a claim in favor of the defendant against the corporation or partnership which existed prior to its insolvency cannot be offset or counterclaimed.</p>

<p>Appeal from judgment entered on verdict for plaintiffs and from an order denying new trial.</p>

<p>In an action for personal injuries resulting from negligence, an expert witness may properly be asked whether, in consequence of the fracture, the plaintiff has lost the perfect power of the member, although the pleadings do not allege permanent injury.</p>

Action to foreclose a contract for the sale of land in Erie county. Defense, fraud and false representations as to the subject-matter of the contract and counterclaim for damages.

<p>Testator by his will gave all his estate to his executors until one of Ms sons should become twenty-one years of age or die, and if he should die before a daughter should be twenty-one, then until she was twenty-one or should die before that period, in trust to collect rents, and, after paying certain legacies, taxes, etc., to pay off and discharge mortgages on the real estate. He also directed that on the son coming of age, or upon his death, the property should be sold and the proceeds divided among Ms children, the shares of certain of them to be invested and held in trust during their lives, and the principal divided at their respective deaths. Held, that there was no unlawful suspension of alienation; that if the son attained the age of twenty-one the estate could be distributed during a single life, and the term of suspension could not be measured or afEected by the life of the daughter.</p> <p>A valid trust to collect rents, pay legacies and charges against the property and discharge mortgages, may be created under section 55 of the Statute of Uses and Trusts.</p>

<p>Hearing on the return of a writ of habeas corpus.</p>

Demurrer to complaint for insufficiency. Action for deceit brought against the defendants, one of whom, Weber, was the president, and the other, Stein, was the secretary and treasurer of a corporation in which the plaintiff owned 118 shares of stock of par value of $100 each.

Action to have certain legacies declared a charge upon the real estate of the defendants’ testator and to enforce payment thereof by a sale of the land.

<p>Habeas cobphs and certiorari to inquire into the cause of the detention of the relator.</p>

<p>Contempt of court on the part of a witness in refusing to answer questions may be summarily punished.</p> <p>"Where the witness refuses to answer questions before the grand jury at a time when the Oyer and Terminer is in session, the offense is one committed in the presence of the court.</p> <p>During the session of the court at which the witness was committed no other court has power to interfere by habeas corpus or certiorari to inquire into the cause of detention.</p> <p>A witness who is subprenaed to appear before the grand jury to testify as to a crime claimed to have been committed by others, especially where the district attorney has agreed to exempt him from prosecution upon any evidence he may give, is not privileged to refuse to answer questions. Whether a witness is so privileged is for the court to determine.</p>

<p>Action to set aside a certificate of sale as constituting a cloud upon plaintiff’s title to land.</p>

<p>Where. a lease contains a covenant that, in case of a different use of the premises than that limited therein, the lessors should have the right, at their election, to terminate the lease by giving three days notice of such election and that the term should thereupon cease at the expiration of said three days in the same manner and to the same effect as if that were the expiration of the original term, the service of notice of such election on the ground of a breach of the covenant creates an expiration of the term and authorizes the maintenance of summary proceedings to remove the tenant under section 3331 of the Code.</p>

<p>Where it appears that a person claiming- an elective office has received a ■majority oí the votes cast at the election at which such office was to be filled, and has received a certificate of such election, and has taken the oath of office required by law, such facts are sufficient to entitle him to the necessary books and papers pertaining to such office, and to authorize the granting of an order to compel their delivery to him.</p> <p>A person claiming in opposition to such certificate cannot try to establish title to such office in such a proceeding.</p> <p>An attempt to file an oath of office within the time prescribed by law is a ■ sufficient compliance with the statute.</p> <p>An election of town officers under chapter 32, Laws of 1858, providing for the division of a town into election districts, takes place on the day the ballots are cast and counted by the inspectors, and not at the town meeting, when the result is announced.</p>

<p>An assignee for creditors is properly charged with the profits realized on a stock transaction of his assignor, although he claims that the assignor’s interest therein was assigned to him two days before the general assignment, where this is denied by the assignor and the testimony of the assignee in relation thereto is inconsistent and conflicting.</p> <p>So, also, he is chargeable with the value of certain bonds held by him as collateral, which he claims to have returned before the assignment, but which are shown by subsequent letters written by him to have been then in Ms possession, where Ms only explanation of such letters is that they were not true, but were written to deceive the creditors.</p> <p>A credit of payments alleged to have been made on account of a preferred debt cannot be allowed where it appears that they were made to the assignor personally and no receipts therefor were taken, and it is not shown that such payments were turned over to the creditor.</p> <p>The expenses of a litigation over the accounts of an assignee for creditors, in wMch the assignee has been unsuccessful as to every material issue, should not be charged against the estate.</p>

Action for judicial direction that the payment of taxes upon certain premises be paid from the rents, issues and profits, and that a receiver be appointed for such purpose.

<p>An appeal from an order will not be heard where the appeal book does not contain a certificate that the notice of appeal and papers purporting to have been presented to the court contained therein are copies of such papers.</p>

<p>Action for construction of a will.</p>

<p>An executor who has defeated a claim 'referred under the statute is not entitled to costs as matter of law, but only to his disbursements.</p>

<p>A defendant cannot demur to an answer of a codefendant controverting Ms title or interest, served pursuant to sections 521 or 1543 of the Code.</p>

<p>Action to determine the interest of the plaintiff in certain land and for an accounting and division.</p>

<p>Appeal from order setting aside judgment.</p>

<p>Appeal from judgment in favor of the plaintiff, entered upon a verdict directed by the court.</p>

<p>Where a portion of the amount admitted by an answer to be due is levied upon and taken from the defendant, after service of his answer, by the sheriff under an execution against the plaintiff in favor of other persons, the defendant has a right to set up such facts by supplemental answer, and an application for leave to do so is not addressed to the discretion of the court.</p>

<p>One who makes an excavation in a street which he leaves unguarded is liable to persons who are injured by reason of such neglect.</p> <p>The mere presence of a person in a crowd assembled to watch the election returns is not, as matter of law, contributory negligence which will preclude a recovery for injuries sustained by being forced by pressure of the crowd into an unguarded trench in the street.</p> <p>Where the judge charges on request that if the plaintiff willfully swore falsely upon any material point the jury might disregard the whole of his testimony, but adds, “or any part thereof,” such addition is not prejudicial, especially where some of his testimony was corroborated.</p>

<p>Appeal from judgment in favor of the plaintiff, entered upon the verdict of a jury.</p>

<p>Appeal from judgment in favor of the defendants.</p>

<p>Appeal from judgment entered on verdict in favor of the plaintiff.</p>

<p>A broker, who is employed to procure a purchaser for real estate and produces one who agrees to purchase and makes a payment on the purchase price, is entitled to his commissions.</p>

<p>Where a husband procures insurance on his life in favor solely of his wife, and she dies before him, her interest does not pass to her personal representatives, but to the husband, and he has a right to assign, transfer or will it as any other chose in action, and if he fails to do so his personal representatives may enforce the obligation of the insurer.</p>

<p>An assignment of a claim by* a corporation, executed by its president in the presence of its secretary and attested by its corporate seal, is sufficient to protect the debtor in paying the amount of the claim to the assignee.</p>

<p>The court has power to order a reference to inquire into the facts on a summary proceeding to compel an attorney to pay over moneys collected hy him.</p>

<p>In an action against a bank to recover a deposit, the plaintiffs evidence tended to show that she made a deposit, including a check of a third person, indorsed by her ; that after the deposit the general bookkeeper and discount clerk told her that he had a letter from such person to the effect that the check would not be paid and requested her to give her check, to be charged against her account if such check was returned unpaid, and that her check was so charged immediately by the bank, which made no effort to collect the other check and never returned it to her. The defendant’s evidence agreed with the plaintiff’s, except that the clerk testified that he immediately returned said check to the plaintiff. Held, that the defendant had a right to have this issue submitted to the jury, and that it was error to refuse to do so and direct a verdict for the plaintiff.</p>

<p>An answer in an action for goods sold, brought by an assignee of the claim, admitting the purchase of certain goods and denying “ each and every other allegation in said complaint contained not hereinbefore specifically . admitted, controverted or denied,” is good and puts in issue the value or agreed price of the goods and the existence of the assignment of the claim to the plaintiff, and it is error in such case to direct a verdict on the pleadings in favor of the plaintiff.</p>

<p>In an action upon a promissory note against the indorser thereof, where notice of protest was given by mail, evidence that the defendant did not receive such notice is properly rejected, as such notice, if properly addressed and mailed, will charge the indorser whether he received it or not. (Ehrlich, Ch. J., dissenting.)</p> <p>In such an action a paper given by the maker to the indorser, certifying that the note in question was indorsed to take up another note signed and indorsed by the same parties, and held by the plaintiff, of which paper the plaintiff had no knowledge, is inadmissible.</p>

<p>Disbursements are not taxable where the plaintiff recovers judgment for nominal damages only in an action specified in subdivision 3 of section 3228 of the Code. ■</p>

<p>Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.</p>

<p>Appeal by defendant from a judgment entered on verdict directed for plaintiffs.</p>

Appeal by plaintiff from a judgment on findings of fact and conclusions of law filed by the judge, decreeing that the defendant was entitled to the fund on deposit with the Seaman’s Savings Bank.

<p>A motion to open a judgment dismissing an action for want of prosecution, made more than a year after the entry of such judgment, should not be granted, but the plaintiff should be left to his remedy by a new action.</p>

<p>Appeal by defendants from a judgment on verdict returned by jury for plaintiff.</p>

<p>Plaintiff was employed by defendant to prosecute an action against the elevated railroad, by injunction or otherwise, to recover damages to his leasehold interest in certain real estate, for which plaintiff was to receive one-fourth of the amount recovered. After the commencement of an action for injunctive relief and damages, the defendant disposed of his interest in the premises without notice to the plaintiff, the conveyance containing no reservation of the right of action. In an actipn to recover for the services performed by plaintiff in such suit the court refused to charge that the equitable cause of action against the railroad failed when defendant sold the property involved. Held, error; that the contract did not limit the plaintiff to the remedy by action for damages, and he having brought an action for injunctive relief, and defendant having, by his acts, destroyed that remedy, the latter was liable for the services performed before the attorney was notified £>f the conveyance.</p>

<p>The receipt by the creditor of the debtor’s own cheek for the amount of a precedent debt raises no presumption that it was accepted in payment thereof.</p> <p>After the commencement of suit the defendant sent his check for the amount of the claim to the plaintiff. Plaintiff's attorney thereupon notified him that he would credit, said check on the judgment when taken, unless interest and accrued costs were paid before the time to answer expired. Defendant made no reply to such notice, but served answer denying "certain allegations of the complaint and setting up payment, and undertook on the trial to prove the latter defense by showing the above facts and by production of the check, which was unindorsed. Held, that such proof was insufficient to establish the defense of payment.</p>

Appeal by the defendant executor from judgment on verdict for $310 for plaintiff for medical services rendered by him to a third person at the request of the testator, the jury having been instructed by the court that they must find for $200, and could find for the larger sum provided that certain additional services were performed at testator’s request.

<p>Appeal by defendants from judgment on verdict for plaintiff and from order denying new trial.</p>

Appeal by defendant Blumenthal from order denying his motion for new trial and for permission to surrender his bail and serve amended answer.

<p>A complaint charging the defendant with negligence in immoderately driving a team of horses on a public highway while intoxicated charges the defendant with the commission of two separate crimes, and, therefore, states facts authorizing the omission of a verification of the answer.</p>

Motion by the permanent receiver of the defendant company for an order directing the delivery to him of certain moneys deposited to the credit of this action.

<p>Proceedings to condemn lands of defendants for a sewer.</p>

<p>The head of a department in the city of Brooklyn has power to increase the salary of his clerks during any month of the year, provided he keeps the expenses of his office for the year within the amount allowed by the board of estimate.</p>

<p>An omission from the case on appeal of a statement that it contains all the evidence precludes the appellate court from considering the motion for a new trial on the minutes.</p> <p>To constitute adverse possession which will ripen into a title, such possession must he peaceable.</p> <p>"Where unoccupied land is not usually cultivated or improved, it must be inclosed by a substantial inclosure during the time of an alleged adverse possession.</p>

<p>Appeal from judgment in favor of the plaintiffs for the amount of an award for damages for land taken for the widening of North Second street. .</p>

<p>Appeal from judgment in favor of the plaintiff, entered on the verdict of a jury, and from order denying motion for a new trial.</p>

<p>Appeal from judgment in favor of the plaintiff, entered upon the verdict of a jury, and from order denying motion for a. new trial.</p>

<p>Plaintiff conveyed his interest in certain real estate to defendant upon an agreement, as alleged, that the defendant would pay therefor the sum of §1,000, with interest, upon the final settlement of the estate. Such agreement was denied by defendant, who claimed to have promised to pay §500 at the final settlement if he received a distributive share at that time. There was no division at the final accounting. The jury found a verdict for §500 and interest from the date of the deed. Held, error; that defendant was not in default until the final accounting, and that interest was recoverable only from that time.</p>

<p>Where one of the record owners of real estate left home at the age of nineteen, and has not been heard from in eighteen years, service of summons in an action in partition by publication upon him and his wife, if any, his heirs, grantees, devisees or assignees as unknown defendants,, is sufficient to bind his heirs, whoever they may be.</p>

<p>Appeal from order granting a new trial upon a case made under section 1002 of the Code.</p>

<p>In response to a request to charge that if the jury believed that the plaintiff had willfully sworn falsely upon any material point they should disregard his entire testimony, the court charged that in such case they might disregard his entire testimony. Held, no error; that the proposition charged was the correct law on the subject.</p> <p>As plaintiff was leaving a street car it started up suddenly and threw her down in such a manner that her limb was badly bruised, the bruise resulting in a sloughing off of the integuments down to the muscles, rendering it necessary to graft pieces of skin from other parts of her body. She was confined to her bed for two weeks and to the house for four or five more, and remained lame for several months, and is still unable to walk as much as' usual. Held, that a verdict for $3,000 was not excessive.</p>

' Appeal from judgment in favor of the plaintiff, entered upon the verdict of a jury, and from order denying motion for a new trial.

<p>Where the sheriff, when sued in replevin for goods which he has levied upon under execution against third persons, notifies such persons that the suit will be discontinued unless they furnish a bond of indemnity, which they are unable to do, such persons have an interest in the subject-matter of the action, and may properly be made parties on their application, without requiring them to give security for costs.</p>

<p>An offer to allow judgment to be taken must be in writing.</p> <p>Where an offer of judgment is made before answer, which is not accepted, and the plaintiff recovers less than the amount of such offer, the defendant is entitled to costs from the time of the offer, although counterclaims arising out of the transaction are extinguished which, with the amount of the recovery, would exceed the offer.</p>

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

<p>A devise to an executor or individual accompanied by a statement that it is made “ upon the trust and confidence reposed in ” him “ that he will dispose of the said property among charitable and benevolent institutions, or corporations * * ® as he shall choose and such sums and proportions as he shall deem proper,” is sufficient to create a trust if the beneficiaries are sufficiently defined. 'J</p> <p>It is not necessary to name the beneficiaries in the will, but it is sufficient, if they are so limited by class, kind or locality that the court can, within the limits of a reasonable investigation, ascertain what they are. The fact that the trustee has the right of selection does not make the-power given to him less imperative.</p> <p>A bequest to charitable and benevolent institutions is valid.</p> <p>A trust for charitable uses is one for a public use, in which the People-have such an interest as entitles the attorney- general, in their name, to maintain an action for its enforcement where the trustee repudiates the trust and claims the fund himself, and the corporations which are the beneficiaries refuse to sue.</p>

Action by newly appointed trustee to set aside deeds made by the late trustee to Alexander Melhado and by him, through mesne conveyance, to defendant Fannie K. Koss.

<p>Demurrer to complaint.</p>

<p>Motion for injunction.</p>

<p>Action to compel the execution of a trust contained in a will probated in the state of Illinois.</p> <p>The trust in question is contained in the codicil of the will of Caroline Ogden McCagg, and is as follows: “ Upon the death of my said sons, William Ogden Jones, Hahlon Ogden Jones or Louis Butler HcCagg, I direct my said trustees or trustee to give the part or share or parts or shares set apart for the use and benefit of the said deceased son or sons during his or their lives to my said daughters, Caroline Ogden Jones and Frances Ogden Jones, or the survivor of them then living, to be used by them or the survivor of them, either wholly or in such parts or shares as they oí the survivor of them in their or her discretion shall deem desirable, for the benefit of the children, if there should be any living, of said deceased son or sons.”</p>

<p>Appeal from the judgment of the Sixth Judicial District Court of the city of New York.</p>

Appeal by defendants from a judgment entered upon a verdict in favor of the plaintiff and from an order denying defendants’ motion for a new trial.

<p>Appeal from judgment of Special Term.</p>

<p>Appeal from judgment in favor of the plaintiffs, entered upon the decision of a judge after trial of the issues at Special Term.</p>

Motion to strike .cause from calendar and for judgment in favor of respondent, pursuant to rule 41 of the General Rules of Practice, and rule 4 of the special rules of this court.

Appeal by plaintiff from judgment entered on verdict in favor of the defendant and from an order denying a motion for a new trial.

<p>Appeal from a judgment in favor of plaintiff and from order denying motion for a new trial.</p>

<p>Appeal from a judgment in favor of plaintiff rendered on the verdict of a jury.</p>

<p>Appeal from judgment in favor of the plaintiff.</p>

<p>Appeal from an order denying a motion to vacate and set aside a judgment entered in favor of plaintiffs.</p>

<p>Appeal from an order denying a motion to remove a referee in supplementary proceedings.</p>

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

<p>Appeal from order denying motion for leave to serve a supplemental answer.</p>

<p>Appeal from judgment entered on verdict of a jury in favor of plaintiff.</p>