Volume 80 — New York Miscellaneous Reports

<p>Liquor Tax Law, § 33, as amended in igio — liquors stored or kept for unlawful sale forfeited—liquors seized under a warrant.</p> <p>The provision of section 33 of the Liquor Tax Law, as amended in 1910, declaring liquors stored or kept for unlawful .sale forfeited, as well as the vessels containing the same, and providing for the destruction of such vessels regardless of ownership, is constitutional, where such liquors have been seized under a warrant which, as provided by said section, contains a notice directed generally to all persons claiming any right, title or interest in such liquors, or in the vessels containing the same; and the owner of said vessels, though innocent of any wrongful act, is without redress in an action to fix the status of the property seized.</p>

<p>Carrie-rs—'Carriage of goods — receipt containing the terms and conditions on which the property is to he carried — contracts — waiver of condition.</p> <p>Sales — purchase of goods — liability of express company for any loss, damage or delay — damages.</p> <p>Where a shipper of property by express accepts from the carrier, without objection, a receipt which embodies the terms and conditions on which the property is to be carried, and which by operation of law constitutes the contract between the parties, the shipper, in the event of loss of the property or its delay in transit, is not entitled to recover against the carrier unless he alleges and proves, as a condition precedent, that he has himself complied with all the provisions and requirements of the contract.</p> <p>Where a plaintiff desires to plead a waiver by defendant of any condition with which it has not complied, he must allege said condition and the facts and circumstances constituting the waiver thereof.</p> <p>Where plaintiff, having purchased certain goods to sell at retail, delivered them to defendant, an express company, for transportation, and in an action to recover damages for the nondelivery of the goods the proof is that plaintiff failed to comply with the condition of the shipping receipt accepted by him from defendant that “ In no event shall this company be liable for any loss, damage or delay, unless the claim therefor shall he presented to it in writing at this office within ninety days after date of shipment, in a statement to which this receipt shall he annexed,” he is not entitled to recover, and a judgment in his favor will be reversed.</p> <p>Where, in the absence of any allegation of special damage, plaintiff was allowed to recover the original cost of the goods, together with an anticipated profit of more than three hundred per cent., and plaintiff was permitted to testify as to what ho paid for the goods in bulk, and both he and another testified, over defendant’s objection, to the prices at which they had retailed similar goods the previous year, "the reception of such evidence is reversible error, as the true measure of plaintiff’s damages, had he been entitled to recover, would have been the value of the goods at the place of delivery, with interest.</p>

<p>Gifts — intent — undue influence — evidence to establish undue influence — action to set aside transfers — fraud.</p> <p>The mere fact that both a donor and his donee are spiritualists raises no presumption of undue influence over the donor.</p> <p>'Undue influence means any improper or wrongful constraint, urging or persuasion whereby the will of a party is overpowered, and he is induced to do acts in relation to the disposition of his property which he would not do if left to act freely- and of his own volition, and whatever disturbs his free ■ act and constrains him to do with his property what is really against his will and purpose and which he would not have done if left to himself is undue influence, whether exercised by physical force, threats or coaxing.</p> <p>The influence which the law regards as undue and illegal must be of such a character as to destroy the free agency of the party who disposes of his property, but no matter how slight the influence be, if the free agency of the party is destroyed so also is the act or acts which are the result of it.</p> <p>Gifts obtained by legitimate influence resulting from honest and disinterested advice may not be avoided on the groiuid of undue influence.</p> <p>If a donee, taking advantage of any affection the donor has for her and because of her intimate association with him, uses her position to subdue and control the mind of the donor and to deprive him of his free agency, the fact that they were old friends and that the donee had been kind to him would make it none the less a case of undue influence.</p> <p>Evidence to establish undue influence, whether direct or circumstantial, must he of the clearest and most convincing character, and that which raises a mere suspicion is not sufficient.</p> <p>Where parties to a transaction do not deal on terms of equality, and the stronger party has seemingly obtained an unfair advantage, and a very large amount of property from the other party who was sick and in her charge, the transaction will be presumed void.</p> <p>The fact that the donee was the nurse of the donor during his last ilhiess and while that relationship existed he transferred to her securities exceeding in value half a million dollars, justified the donor’s executor in bringing an action to set aside such transiera and placed on the donee the burden of showing, by clear and satisfactory evidence, that said transfers were the free and voluntary act of the donor.</p>

<p>Undertakings — given on condition that defendant answer — criminal charge — bail — Liquor Tax Law.</p> <p>Where a defendant, charged with a violation of the Liquor Tax Law, was admitted to bail upon giving an undertaking conditioned that he would “ appear and answer the charge * s- ' in whatever court it may be prosecuted * * ® and at all times render himself amenable to the orders and process of the court,” the plaintiff, in an action on the undertaking after forfeiture, need neither allege nor prove notice to the accused and to the surety that the criminal ease would be called for trial. So held, on motion to set aside a verdict in favor of plaintiff and for a new trial</p>

<p>Motions and orders — supplementary proceedings — order that third persons turn over to receiver property claimed to belong to judgment debtor — right of judgment debtor to property disputed in good faith — motion to vacate order.</p> <p>A motion to vacate or modify an order requiring third persons to turn over to a receiver in proceedings supplementary to an execution, upon certain conditions, certain personal property claimed to belong to the judgment debtor, can properly be made only to the judge who granted the order, or to the court out of which the execution upon the judgment was issued.</p> <p>Such an order need not contain a provision for a stay of all proceedings under it until the hearing and determination of any motion which might be made at a Special Term to vacate or modify it, if such motion be made within seven days from the date of said order, as the judge who granted it had power to entertain such a motion and an order either granting or denying it is appealable.</p> <p>Where said order directed one of said third persons upon a" tender to him of $5,000 by the receiver in the supplementary proceedings to deliver and assign to him certain shares of corporate stock or substitutes therefor, and the certificate therefor, and provided that upon his failure or omission so to do and the tender by said receiver to the other third person of $46,000 and interest from the date of said tender on certain promissory notes of the first third person, particularly described in the order that the other third person assign and deliver to said receiver said promissory notes aggregating. $46,000 together with all securities and property held for the payment thereof, and the judgment debtor’s right to the possession of said property is in good faith substantially disputed by the other third person who claims an interest in the equities of the securities, if any there be, by reason of certain facts shown by the moving papers, and the testimony taken in the proceeding, a motion to vacate said order will be granted.</p>

<p>Husband and wife — action for alienation of aSection — injunction ♦ pendente lite denied.</p> <p>A wife’s action for the alienation of her husband’s affection, and the consequent loss of consortium, is not maintainable after the lapse of six years from the date of the alleged alienation.</p> <p>Where the action was commenced more than six years subsequent to the only act of alienation charged against defendant, plaintiff’s motion for an injunction to restrain defendant pendente lite from the continuance of those acts which lie at the foundation of the cause -of action will be denied where the husband of plaintiff submits an affidavit on behalf of defendant in which, he states that when he stopped living with plaintiff his feeling towards her was such that there was no affection left that any one could possibly alienate from her.</p>

<p>Injunctions — action to enjoin encroachment on a street — authority to use streets of a municipal corporation — construction of a narrow gauge railroad — abutting owners.</p> <p>An action to enjoin an encroachment on á street for purposes inconsistent with those uses to which streets have been ordinarily subjected is maintainable by an abutting owner in whom is also vested the title to the bed of the street.</p> <p>Authority to use the streets of a municipality for railroad purposes is a franchise from the state; and the only-power the municipality has in respect thereto is such as is expressly given by statute and then to be exercised only in a manner and upon the conditions prescribed thereby.</p> <p>The use of a street for municipal or individual purposes independent of its use for street purposes is an additional burden on the fee not included in the grant of lands for highway purposes.</p> <p>The construction of ' a narrow gauge railroad about three feet in width with steel rails laid upon ties sunk into the surface of a street, the fee to the bed of which is owned by abutting property owners, and the operation thereon of trains of dump cars in connection with excavation of municipal subway construction, would create an additional burden on the highway not for a street use which cannot be authorized by the legislature or any municipal authority without making compensation therefor to abutting owners.</p> <p>Where, in an action by abutting owners to restrain the construction and operation of such railroad, it appears that the same will be unremittingly in operation day and night for from eighteen months to two years, a temporary injunction will be granted restraining such construction and operation.</p>

<p>Pleading — action for a separation — counterclaim —allegation of domicile — defenses — Code Civ. Pro. § 1765.</p> <p>Where a wife brought an action for a separation on the ground of desertion alleged to have occurred at a certain time, and defendant’s counterclaim that six months later plaintiff abandoned him in another state, their domicile, was denied by the reply which also pleaded as a defense thereto new matter charging defendant with adultery committed prior to the alleged desertion and that since the discovery of the adultery plaintiff had not cohabited with defendant, and he demurs to said defense, plaintiff’s motion for judgment on the pleadings will be granted, though it appears that the desertion alleged in the complaint has not continued for the time required to make • it a ground for a decree of separation in the state where the ■ desertion occurred.</p> <p>Plaintiff having alleged domicile in this state, the court under section 1765 of the Code of Civil Procedure had jurisdiction of the counterclaim, though if the facts therein alleged be true the parties are domiciled in the foreign state, for plaintiff, if she left defendant without just cause, did not acquire a separate domicile.</p> <p>The allegations of defendant’s adultery were pleaded as new matter only as a defense, that is, as a justification of a desertion charged by defendant against plaintiff, and, there being no inconsistency between such allegations and the complaint, said defense was sufficient in law upon its face, and the demurrer thereto was bad.</p>

<p>Motion for certificate of reasonable doubt.</p>

<p>Laches — as a defense — when pleaded — specific performance — action to recover on contract for sale of land — examination of title— defects in title — contracts.</p> <p>Laches as a defense must be pleaded.</p> <p>Where, in an action to recover a deposit made on a contract for the sale of land, dated in 1902, the last amended answer demanding specific performance was served in the month of November, and in the following May a judgment in defendant’s favor was reversed on the sole ground that defendant had been guilty of laches in curing admitted defects in the title, a motion for leave to serve an amended reply setting up said laches made nearly two years later, just previous to the new trial, will be denied for laches.</p> <p>Where, on the trial of said action, it appeared that an examination of the title disclosed certain defects, that thereafter the title, except as to one parcel, was admitted to be good and marketable; that in 1903 plaintiff’s counsel approved a proposed deed of said parcel but that in 1904 defendant did nothing in the matter; that plaintiff on rejecting the title commenced this action in 1905 and the answer demanded specific performance of the contract, but through loss of deeds the trial was delayed until December, 1906; and it further appeared that the defects in the title were cured at the trial and that the lapse of time had caused no material change in the subject matter of the action or the relations of the parties thereto, defendant was entitled to a decree for the specific performance of the contract.</p>

<p>Action upon a contract.</p>

<p>Trial — goods sold and delivered — questions presented — submission of cause — Code Civ. Pro. § 1185.</p> <p>In an action for goods sold and delivered,' the defense, was that plaintiffs had previously sued the agent of defendant, with knowledge of the agency, and recovered a judgment which was still unpaid. On the trial of the action it appeared that defendant was the owner of the factory at which the goods were delivered and used in her business which was conducted by her husband as manager, and that he negotiated the various purchases from plaintiffs. It further appeared that in the beginning merchandise was purchased on the husband’s credit, though the business, from the time of all the deliveries of merchandise, had been the property of defendant; that shortly before the goods in question were purchased her husband told plaintiffs’ salesman that the business stood in the name of defendant because of judgments against her husband which he did not care to pay, and, notwithstanding the fact was communicated to one of the plaintiffs, the account was continued in the original form and the bills were charged to and paid for by the husband. Said plaintiff testified that he had forgotten the information which his salesman had communicated to him and that it was not in his mind when the action against the husband was commenced and only recurred to him when, after execution on the judgment entered therein was issued, the claim was made that the business belonged to the wife.</p> <p>Held, that a question of fact was presented as to whom, credit was given which should have been submitted to the jury, and that said plaintiff could not as matter of law be deemed to have made an election when he claimed a mistake and a misapprehension of the facts. That, notwithstanding the cause was submitted under section 1185 of the Code of Civil Procedure, it would be unjust to award judgment to plaintiffs, and a motion to set aside the verdict and for a new trial will be granted.</p>

Appeal by the defendants from an order of the City Court of the city of New York adjudging one of them guilty of contempt of court.

Appeal by defendant Jule Schonberger from an order of the City Court of the city of New York denying his motion to set aside and vacate service of a summons and complaint in this action.

<p>Deeds — action for breach of covenant — covenant against incumbrances — amount of damages—recovery of expenses for removing encroachments.</p> <p>Defendant, by a full covenant and warranty deed, conveyed to plaintiff, his co-tenant, his one-half interest in certain real estate “ free from all incumbrances.” In an action for breach of the covenant, it appeared that a building on the property conveyed substantially encroached on adjoining property and that plaintiff removed the same at his own expense and he demanded judgment against defendant for one-half the amount of such expense. Held, that a judgment in defendant’s favor, under a ruling that the fact that some part of the land conveyed encroached on adjacent property did not constitute a breach of the covenant against incumbrances, would be reversed; that plaintiff was entitled to recover the expense incurred in removing the encroachment provided it did not exceed the purchase price, with interest.</p>

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

Appeal by defendants from a judgment of the City Court of the city of New York, entered upon the verdict of a jury rendered in favor of the plaintiffs.

<p>Motion to open a default.</p>

<p>Action to recover alleged purchase price of a cash register; tried before the court without a jury.</p>

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

Suit to enjoin defendants from taking away, or interfering with oysters in St. James bay, or Stony Brook harbor, Smithtown, and for damages.

<p>Motion for judgment on the pleadings.</p>

<p>Motion by defendant for final judgment on a de>murrer. "</p>

<p>Motion by defendants for judgment on the pleadings.</p>

<p>Motion for order to show cause why judgment should not be vacated and set aside.</p>

<p>Appeal from a judgment rendered in Justice’s Court in favor of plaintiff.</p>

<p>Judgments—■ Municipal Court of city of New York — assessment of damages — order vacating and setting aside — when not appealable.</p> <p>In an action brought in the Municipal Court of the city of New York to recover damages for breach of a contract of carriage the judgment in defendant’s favor was reversed by this court. On the second trial, the plaintiff having died and the action being continued in the name of his wife for the benefit of his estate, the complaint was dismissed on the theory that the action had abated, and on appeal to this court from the judgment so entered it was reversed and on a further appeal to the Appellate Division of the Supreme Court by permission on stipulation for judgment absolute the determination of this court was affirmed. Before the damages were assessed the clerk of the Municipal Court, without any direction of the court or a judge thereof, entered a judgment in favor of defendant for $500 damages and $200.11 costs. Held, that an order vacating the alleged judgment and setting aside an entry cancelling the same was not appealable.</p>

Appeal by plaintiff from a judgment of the City Court of the city of New York rendered in his favor and from an order denying plaintiff’s motion for a new trial; appeal by defendant from the judgment rendered in favor of the plaintiff.

Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of the Bronx, second district, which sustained the defendants’ demurrer to the plaintiff’s complaint on the ground that the complaint did not state facts sufficient to constitute a cause of action.

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

Appeal by the plaintiff from an order of the Municipal Court of the city of New York, borough of Manhattan, third district, denying a motion to vacate, set aside or amend the judgment herein entered 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, eighth district, rendered in favor of the plaintiff.

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

<p>Attachment — warrant of — granted by the court — recitation as to granting by the court.</p> <p>A warrant of attachment granted at the time of the issuance of a summons in a Municipal Court action is granted by the court though signed by the justice holding court in the district in which the action was brought, and though it does not recite on its face that it was granted by the court.</p> <p>The fact that the warrant of attachment was granted by the court may be evidenced by the subscription of the clerk of the court in the proper district and by the fact that it was indorsed upon, or annexed to, the summons.</p>

<p>Appeal from so much of the judgment of the Municipal Court of the city of New York, borough of Brooklyn, fourth district, as imposed seventy-five dollars costs upon the defendants for a disbursement for a copy of the stenographer’s minutes.</p>

<p>Statute of Frauds— what constitutes an employment under — what takes case out of.</p> <p>Contracts — action to recover contract price — breach of — associations.</p> <p>The election of one as a lodge physician for a year constitutes an employment, and the record thereof in the proceedings of the lodge takes the case out of the Statute of Frauds.</p> <p>Where plaintiff, the lodge physician of defendant, was wrongfully removed during the year for which he was elected, he is entitled after the expiration of the year to recover the contract price of twenty-five cents a member, whether he sues for wages or for a breach of the contract of employment; and the exclusion of testimony of his readiness and willingness to perform and of the number of members on which his compensation was based is reversible error.</p>

<p>Landlord and tenant—lease of building as a private garage—what constitutes an eviction.</p> <p>Where municipal regulations, after a wooden building has been leased as a private garage, prohibited the issuing of garage permits for buildings not fireproof for storing gasoline, in addition to that contained in the tanks of vehicles, or the storing of motor vehicles except in buildings having a garage permit, the use of a building for a garage is not necessarily prevented so as to constitute an eviction; for while it might be convenient to store gasoline in a public or private garage it cannot be considered necessary in a private garage.</p>

<p>Motion by defendant for a new trial upon the minutes.</p>

<p>Negligence — action for personal injuries — corporations — street railways— city of Buffalo.</p> <p>Where defendant, the operating company and owner of all the stock of a corporation owning a street railway franchise in the city of Buffalo, runs ears over the line under the so-called “ Milbum agreement” which merely provides that the roads may “ run their cars on each other’s lines interchangeably ” both corporations are jointly and severally liable for the wrongful acts of defendant’s employees in the operation of the road.</p> <p>In an action against defendant for personal injuries caused by the wrongful acts of its employees, a judgment in favor of the other corporation in an action against it to recover for the same injuries is not a bar.</p> <p>A street railway company which creates a dangerous situation by piling newspapers dropped from one of its cars at a street corner is liable to one injured thereby as for a nuisance; but where such condition arises from other causes its failure to remove • the obstacle involves a question of negligence.</p>

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

<p>Motion for a new trial after verdict in favor of . plaintiff.</p>

<p>Proceeding under the provisions of section 381 of the General Election Law for a writ of mandamus.</p>

<p>Action for specific performance.</p>

<p>Motion by plaintiff for counsel fee and alimony in an action for a judgment of separation from bed and board.</p>

<p>Demurrer to the plaintiff’s complaint by the defendants Seymour and Harvey, on the ground that the complaint fails to state a cause of action.</p>

<p>Stenographers — stipulation as to fees — costs — Code Civ. Pro. § roig,</p> <p>Where, preliminary to the taking of testimony on a reference to hear and determine a motion to set aside a judgment, the parties stipulated that the stenographer’s fees should constitute a cost and disbursement and be taxed as such with the referee’s fees, and,- upon the referee’s failure to file his report with the clerk or deliver it to the attorney for one of the parties, plaintiff’s attorney elected to end the reference and serve the notice provided by section 1019 of the Code of Civil Procedure, the referee is entitled to no fees; and where by a later stipulation the parties adopted and ratified the one originally made, so far as it related to the stenographer’s fees, and availed themselves of the testimony taken by him by submitting it to the court as the basis for its disposition of the case, an order subsequently made vacating the judgment with $10 costs and $166 disbursements, made up of $100 fees of referee -and $66 stenographer’s fees, will on motion be resettled so as to eliminate the referee’s fees, the amount for stenographer’s fees to be taxed.</p>

<p>Demurrer on the ground that the complaint does not state facts sufficient to constitute a cause of action.</p>

<p>Action to construe a will.</p>

<p>Marriage — contract of — action to annul second marriage—. statutory prohibition.</p> <p>A contract of marriage is sui generis, and laws prohibiting marriage have no extra-territorial force and effect.</p> <p>Where defendant was divorced in a jurisdiction where the statute provided that during the period of one -year from the granting of a decree of divorce neither party thereto should be permitted to remarry to any other person, and about a month after the entry of a decree against her defendant was married to plaintiff in another state, and it is not shown that the statutes thereof declared such a marriage void, it is valid, notwithstanding the prohibition of the statute of the state wherein the divorce was granted; and the complaint in an action to annul the second marriage on the ground that defendant was at the time thereof unable to enter into a valid marriage contract with plaintiff because of the statutory pro- ' hibition will he dismissed.</p>

<p>Trusts —■ money deposited in savings hank — void for indefiniteness and uncertainty.</p> <p>Where money is deposited in a savings bank, “in trust for ‘Benevolent Object’ Warburton Avenue Baptist Church of Yonkers, N. Y.,” the trust is void for indefiniteness and uncertainty, and upon the death of the depositor the amount due on the account is payable to her administrator.</p>

Plaintiffs move for judgment on complaint and demurrer. The complaint in substance alleges that between 1907 and 1911 the defendant as a builder, repairer and decorator of wagons and automobiles, did repairing and painting upon the wagons used by the plaintiffs in connection with their business as merchants and was paid $39,626.66, and that in order to influence and induce the giving of such work to him, secretly paid, as plaintiffs have since discovered, ten per cent, of…

<p>Pensions — appointment to police force of city of New York—mandamus.</p> <p>Pension laws, in the absence o£ express provisions to the contrary, will be so interpreted as to prevent any person from receiving a double pension.</p> <p>Relator, appointed to the police force of the city of. New York in 1870, was on his own application retired in 1893 and placed on the roll of the police pension fund and received a pension up to January 1, 1898. After his retirement, he became a captain of police of the town of New Utrecht which was abolished by chapter 451 of the Laws of 1894 and its territory annexed to the city of Brooklyn and relator, by the terms of said statute becoming eligible to appointment on the Brooklyn police force, served as patrolman until January 1, 1898, when the city of Brooklyn became a part of Greater New York. By section 278 of the Greater New York Charter, the members of the Brooklyn police force were transferred to and made members of the police force of the city of New York and relator became a patrolman thereof. On mandamus, his right to the continued enjoyment of the pension theretofore granted him was held to be unaffected by his new employment in the city which had granted him the pension, and until January, 1913, he continued to receive both the old pension and the new salary with increases on promotion. " The order retiring him on a pension of $1,125 per annum declared that such pension “is considered to be an increase of $125 over the pension of $1,000 ” granted in 1893, and relator received the first payment at the increased rate under protest claiming to be entitled to both pensions. Held, that his application for a peremptory writ of mandamus directing payment to him in accordance with his claim will be denied.</p>

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

<p>Railroads — certificate of extension as required by Constitution and statutes — what constitutes a construction of —■ Railroad Law,</p> <p>§ ia — mandamus.</p> <p>Where it is undisputed that a railroad company, later' merged with relator, has the necessary consents of abutting owners and local authorities as required by the Constitution" and statutes, and has filed and recorded in the office of the secretary of state a certificate of extension containing an enumeration of the streets, avenues and plaees in which it was proposed to extend the railroads, which certificate recited eight routes the last of which was as follows: “A route commencing ■ at the track of said Bailroad Company at the intersection of Bergen Street and Troy Avenue, thence along Troy Avenue to City Line,” and it is admitted that relator constructed the whole of routes 6 and 7 named in said certificate and that the total mileage of said routes is in excess of ten per cent, of the total mileage of the eight routes, and that such construction was completed within five years after the filing of said certificate, and that no work was done on route 8 along Troy avenue, and that more than ten per cent, of the capital necessary to construct the entire extension of the eight routes was expended on routes 6 and 7, there has been no forfeiture of the right of construction of route 8 under section 12, formerly section 5, of the Railroad Law.</p> <p>The eight routes constitute but one extension and relator has a clear legal right to finish the construction of its route, payment having been made in construction of the extension as required by section 12 of the Railroad Law, and the borough president may by mandamus be compelled to issue the necessary permit to allow the construction of route 8.</p>

<p>Motion for certificate of reasonable doubt. Defendant was convicted of the crime of attempted bribery of a witness.</p>

<p>Action to have a bill of sale declared fraudulent.</p>

<p>Action by guardian ad litem to annul marriage of ward.</p>

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

<p>Mandamus — who entitled to—'fair opportunity to make explanation to commissioner of bridges of city of Mew York.</p> <p>Where the letter of the commissioner of bridges of the city of Hew York requiring relator to appear before him on April 26, 1912, at ten a. m. was not delivered until after five p. M. on April 25, 1912, and an adjournment was refused, relator was not given a fair opportunity to make an explanation of the charges against him as guaranteed by section 1543 of the Greater Hew York Charter; and he is entitled to a peremptory writ of mandamus to compel said commissioner to give him a hearing.</p>

<p>Motion to amend condemnation proceedings.</p>

<p>Action in the nature of a bill for specific performance.</p>

<p>Demubeeb to complaint.</p>

<p>Insurance (fire) —agent given notice to cancel policy — when liable for not so doing — distinction between nonfeasance and misfeasance.</p> <p>A broker or agent employed merely for the purpose of procuring insurance has no implied authority to cancel or accept an operative notice of cancellation.</p> <p>If a person undertakes an employment or trust and begins the performance of it he is liable for any injury which may result from his neglect, even though he may not have received any consideration for the promise; if he omit to do what he has thus agreed to accomplish the failure of the consideration excuses his omission; this is a nonfeasance; if he begins the execution of his engagement and fail to complete, his failure is a misfeasance and he becomes responsible.</p> <p>Where plaintiff’s assignor, upon the destruction by fire of property insured by it, paid the amount of the policy because it had never been canceled, and, in an action to recover from defendant who, as agent of plaintiff’s assignor, had procured the issuance of the policy, to recover the amount so paid on the ground of defendant’s negligence in failing to take effective means to cancel the policy after notice so to do by plaintiff’s assignor, the evidence consisting of letters passing between the parties to the action lead to the irresistible conclusion that defendant undertook but negligently omitted to effect a cancellation of the policy and that its conduct lulled plaintiff’s ' assignor into the position of assuming defendant would carry out what it had undertaken to do, and that defendant either for the purpose of retaining a client or a premium took the chance of continuing the policy by not canceling it as directed, it was liable for the amount paid by plaintiff’s assignor.</p>

Appeal by Norman S. Walker, Jr., the above-named third party directed to appear for examination, from an order of the City Court of the city of New York, denying his motion to vacate or modify the order of his examination, which order was made in proceedings supplementary to execution in an action in which one Murphy was plaintiff and Jacob Cram defendant.

<p>Appeal by the defendants from an order made at Trial Term of the City Court of the city of New York denying a motion to dismiss the complaint upon the ground that the court did not have jurisdiction of the action.</p>

. This is an appeal from an order' of the City Court of the city of New York denying a' motion made by the appellant, a judgment debtor, to compel the judgment creditor to file the deposition of a witness in supplementary proceedings.

Appeal by the plaintiff from an order of the City Court of the city of New York denying a motion to resettle the clerk’s minutes so as to show that a verdict was rendered in favor of the defendant-respondent Kuntz only, instead of in favor of all the defendants as set forth in the extract from the minutes; also to resettle the judgment and order denying motion for a new trial so as to show that the verdict was for the' respondent Kuntz only; also to resettle the judgment…

This is an appeal from an order of the City Court of the city of New York granting the plaintiff’s motion for judgment on the pleadings consisting of complaint and demurrer. ' ..

Appeal by the defendant from an order of the City Court of the city, of New York granting plaintiff’s motion to discontinue without costs..

<p>Chattel mortgages — foreclosure of — title ownership or right to possession of the mortgaged chattels — possession of the property before default.</p> <p>A chattel mortgage providing that no title, ownership or right in or to the possession of the mortgaged chattels should vest in the mortgagee until default in payment of the sum secured, and authorizing a sale from time to time of the mortgaged property by the mortgagor, is void and fraudulent as to his creditors, although he agreed to replace any of the property sold with property of equal value, and the fact that the mortgagee took possession of the property before default by the written authority of the mortgagor can in nowise help such mortgagee, in an action against a marshal of the city of New York to recover damages by reason of a levy on and sale of certain of the mortgaged goods under a warrant of attachment issued in an action against the mortgagor.</p>

<p>Appeal by the plaintiff from an order of the Municipal Court of the city of New York, borough of Manhattan, second district, setting aside a verdict in favor of the plaintiff.</p>

<p>Appeal by the defendant from an order of the City Court of the city of New York sustaining a demurrer to a separate defense.</p>

<p>Cross-appeals from an order of the City Court of the city of New York striking out part of the sixteenth paragraph of the answer as irrelevant and redundant, requiring it to be made more definite and certain, and denying the motion to strike out the seventeenth paragraph of the answer as irrelevant-and redundant.</p>

<p>Return of an order to show cause why a writ of prohibition should not issue.</p>

<p>Constitutional law — limitation on power of courts to set aside statutes — Constitution, art. 12, § 1.</p> <p>City of Auburn — common council of — power to change lighting system — constitutional law — action for conversion.</p> <p>The limitation upon the power of the courts to set aside statutes claimed to be in conflict with section 1 of article 12 of the State Constitution has neither been abrogated nor modified.</p> <p>Where the common council of the city of Auburn, with full and complete power to change the method of lighting in any portion of the city to such system and with such equipment as it deemed proper, had provided for lighting by electricity all the streets, and by amendment to the city charter known as section 131 (Laws of 1910, chap. 678) the common council “ authorized and empowered, in its discretion, to create and alter a lighting district or districts within such city as it may fix and determine, with full power to order such construction and installation of lighting or additional lighting as it may prescribe, the cost of which shall be fixed, apportioned, assessed and collected in the manner and at the time as may be designated by the common council,” it is not competent for the court to adjudge that said amendatory act violated the constitutional provision (art. 12, I 1) that: “It shall be the duty of the Legislature to provide for the organization of cities and incorporated villages, and to restrict their power of taxation, assessment, borrowing money, contracting ■ debts, and loaning their credit, so as to prevent abuses in assessments and in contracting debt by such municipal corporations.”</p> <p>Thereafter such proceedings were had by the common council under said amendatory act as resulted in the creation of a so-called inside lighting district comprising substantially the principal business portion of the city, and, after,a public hearing to all persons interested, pursuant to notice duly given, the common council directed twenty-five per cent of the cost of the new system of lighting in said district to be paid.by the city, the same to be added to and included in the tax budget each year and the remainder by assessment upon the real property abutting on the street in said district in proportion to the frontage of the various properties, said assessment to be made and collected as provided by sections 7, 8, 9 and 10 of chapter 352 of the Laws of 1905, and the common council by resolution levied an assessment accordingly and directed the giving of the notice and the collection of said assessment by the city treasurer as specified in section 8 of the statute of 1905. Plaintiff, the owner of certain property within the boundaries o£ said district, having refused to pay said assessment, the treasurer of the city issued to defendant, a constable of said city, a warrant for the collection of said assessment and seized and sold said property. In an action for conversion, held, that defendant was not personally liable for acts done under the command and by virtue of the treasurer’s warrant.</p>

<p>Application for peremptory writ of mandamus to compel the signing of a writ of replevin.</p>

<p>Attachment — warrant of seizure — Municipal Court of city of New York—■ undertaking — Code Civ. Pro., § 636.</p> <p>Upon an application for a warrant of seizure,' in an action brought in the Municipal Court of the city of New York to foreclose a lien on a chattel, plaintiff need not show all of the matters and facts required by section 636 of the Code of Civil Procedure.</p> <p>Where an undertaking tendered by plaintiff in such an action refers to the warrant as “ warrant of foreclosure ” instead of “warrant of seizure,” and recites that “the plaintiff would pay to the defendant all costs that may be awarded to him and all damages that he may sustain by reason of the foreclosure,” but fails to recite that plaintiff will indemnify the defendant if damages are suffered from the vacating of the warrant of seizure, the justice to whom it is presented for approval is justified in refusing to approve the same, and an application for a mandamus requiring him to sign the warrant will be denied.</p>

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

<p>Statute of Frauds — not a defense — action to recover damages — sales —■ contracts.</p> <p>Where an order made out on a blank printed by defendant, with its printed name and address at the top for the sale of goods to plaintiffs, gave the terms of sale, time of delivery and price of each item of goods, and was signed by one of the plaintiffs, and at the foot of said order a printed guaranty of the price coupled with the privilege of canceling the order was followed by the printed signature of defendant whose president testified that plaintiffs’ order was placed on defendant’s books as an order, the Statute of Frauds is not a defense in an action to recover damages for nondelivery of the goods.</p> <p>A contract for the sale of articles to be manufactured and delivered which are not suitable for sale to others in the ordinary course of the seller’s business is not within the Statute of Frauds. ,</p>

<p>Contracts — deposit on contract of sale — evidence — objection to title — encroachment on land.</p> <p>Where the complaint, in an action to recover a deposit on a contract for the sale of real estate, alleges that plaintiffs assignor was ready, willing and duly offered to accept and take a deed in fee simple to the premises, hut refused to accept a deed tendered by defendants on the ground that it would not and did not convey said premises free of all incumbrances, as provided by the contract, the exclusion of evidence that plaintiff’s assignor did not have sufficient cash to pay the balance of the purchase price; that it never offered to perform the contract on its part and was unable so to do, is error calling for the reversal of a judgment entered on a verdict in plaintiff’s favor.</p> <p>Where an objection to the title on the ground of an encroachment by a wooden fence and an adjoining two-story frame building was not raised until after plaintiff’s assignor had refused the title and after his default had been noticed, the objection is not available to defeat defendants’ right to retain the forefeited deposit, it not appearing that it was beyond the power of defendants to remove said encroachment.</p>

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

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

Appeal by defendants from a judgment of the Municipal Court of the city of New York, borough of Manhattan, second district, rendered in favor of the plaintiff after a trial by the court and a jury, and also from an order denying a motion for a new trial.

Appeal by plaintiff from an order of the Trial Term of the City Court of the city of New York, granting defendants’ motion to set aside a verdict rendered in favor of the plaintiff and directing a new trial on the ground that the verdict is against the weight of evi-' dence.

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

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

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

Appeal by defendant from a judgment of the City Court of the city of New York entered in favor of the, plaintiff upon the verdict of a jury for $600.91 and also from an order denying defendant’s motion for a new trial.

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

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

<p>Automobiles — action to recover damages under policy of insurance — evidence of existence of any object with which the machine did or could have come into collision.</p> <p>Where, in an action to recover damages to plaintiff’s automobile under a policy insuring it against loss or damage if caused solely by collision with another object, either moving or stationary, excluding, however, all loss or damage caused by striking any portion of a roadbed, it appeared that the side of the road along which the machine was running sloped from the edge of the roadbed at an angle of thirty to forty-five degrees into a deep ditch, that at a turn in the road the machine turned out on the side of the ditch, the hind wheels skidding and throwing the rear of the machine farther into the ditch than the front wheels, and that in attempting to regain the road the right hand front wheel collapsed, but there was no evidence as to the existence of any object with which the machine did or eonld have come into collision, a judgment entered on a verdict directed in plaintiff’s favor will be reversed.</p>

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

<p>Payment — required to be made at a particular place — promise to extend time of.</p> <p>Contracts —■ conditional sale — promise to pay part payment on balance due — tender of payment.</p> <p>Where by a contract of conditional sale of chattels all payments were required to be made at a particular place or by registered mail, no demand of payment is necessary.</p> <p>A promise to extend the time for payment of installments due on payment of part of what the buyer was legally bound to pay is "without consideration and unenforcible.</p>

Appeal by defendants from a judgment of the Municipal Court of the city of New York, borough of the Bronx, second district, rendered in favor of the plaintiffs.

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

<p>Conservation Law, § 31 — as amended — justice of the peace — jurisdiction.</p> <p>Section 31 of chapter 444 of the Laws of 1912, amending the Conservation Law, was intended to continue the jurisdiction formerly vested in Courts of Special Sessions under section 24 of the Forest, Fish and Came Law, and authorizes a justice of the peace to try one accused of committing a crime covered by-said law committed anywhere within the county where the magistrate resides.</p>

<p>' Appeal by the defendants from a judgment of a justice ’s court after a trial by jury.</p>

<p>Liquor Tax Law, § 13 — notice of submission of local option questions — special town meetings.</p> <p>Where the town clerk fails to have the notice of the submission of the local option questions, provided for in section 13 of the Liquor Tax Law, posted the full time prescribed by statute, viz: ten days before the town meeting, an application for a resubmission of such questions at a special town meeting must be granted, though no complaint is made as to the manner in which the election was conducted, no intimation that a full and fair vote was not recorded, and no suggestion made that the result did not express the deliberate judgment of the electors.</p>

<p>Village Law, § 42 — action to oust defendant from office of president of incorporated village — judgments.</p> <p>Where, on the trial of an action to oust defendant from the office of president of an incorporated village, after the board of trustees had adopted a resolution that he was ineligible under section 42 of the Village Law which provides that “A president 1 * * must at the time of his election be owner of property assessed to Mm on the last preceding assessment-roll,” it is conceded that property was assessed to defendant upon the last assessment-roll, and that at the time of his election as president he was in fact the owner of the part of the property so assessed to him upon the last assessment-roll;</p> <p>Held, the action of the board of trustees in declaring his ineligibility to hold the office was without legal justification and of no force or effect, and he is entitled to judgment in Ms favor.</p>

<p>Costs — relaxation of — stenographer’s fees for copy of minutes.</p> <p>Where it was the intention, under stipulations made in four proceeding's against the state board of tax commissioners to review assessments for the years 1905-1908, inclusive, that the successful party should be entitled to tax as costs the fees for copies of the stenographer’s minutes furnished to counsel for the opposite parties, a motion by the city of New York, intervener, which by the final order in each proceeding was awarded costs against relator, for a retaxation of costs so as to include in each an item for stenographer’s fees for a copy of the minutes furnished to the counsel of the intervenor and for another copy furnished to the attorney-general, will he granted.</p>

<p>Action for negligence.</p>

Trial by court with jury. At the close of the evidence the court directed a verdict for the plaintiff, and reserved its decision on the motion of defendant to set the same aside.

<p>Principal and agent — action by agent for expenses incurred in defending suit to recover purchase price of goods sold by him.</p> <p>Where plaintiff as agent for defendant and at its request made a loan to a construction company taking as security a chattel mortgage upon its property, and upon the mortgagor’s default in making payment plaintiff, pursuant to defendant’s request, sold a certain concrete mixer which though covered by the chattel mortgage was not in plaintiff's .possession, and defendant failed and refused to defend, after notice, an action against plaintiff to recover the purchase price of the mixer, with interest, for the alleged nondelivery of the article, and after the reversal of a judgment against plaintiff the claim was compromised and paid by defendant herein upon discovery that plaintiff had no authority to sell the mixer, a dismissal of the complaint herein1 to recover for the expenses in defending said suit must be upheld on the ground that plaintiff in selling the mixer without reducing it to possession acted in the capacity of a principal and not as agent of defendant, and plaintiff’s motion for a new trial under section 999"of’the Code of Civil Procedure will be denied.</p> <p>Before plaintiff could hold defendant liable for expenses incurred in defending the suit'brought to recover the purchase price of the mixer, he was bound to show that defendant as agent of the purchaser ratified the act of plaintiff, or received the benefit from his act.</p> <p>Where defendant, upon discovering that plaintiff did not "act within the scope of his employment as such agent, immediately returned the money to the purchaser of the machine he thereby relieved himself from all responsibility for any act of plaintiff.</p> <p>Plaintiff having, failed to show a ratification and that he had reduced the mixer to possession before he was in a position to sell it, failed to prove a cause of action as matter of law.</p>

Appeal by plaintiff from an order of a justice of the City Court of the city of New York, vacating a warrant of attachment on the ground that, as both the complaint and the warrant were for a sum over $4,000, the court was without jurisdiction.

<p>Appeal by the tenant from a final order dispossessing the tenant in summary proceedings in the Municipal Court of the city of New York, borough of Manhattan, third district, for the nonpayment of rent for the month of February, 1913, under a written lease.</p>

<p>Actions — to recover commissions on sales made in foreign country — pleading'—bill of particulars — depositions.</p> <p>The interests of commerce demand that our courts should give all proper aid to foreign creditors in the collection of just demands;</p> <p>Where, in an action to recover commissions on sales made for defendants in England, 'and also commissions on sales made by them in New York for a resident of England, the answer is a general denial, and a counterclaim for a sum of money collected for defendants above all sums due plaintiff is denied, and an order for the examination of defendants before trial was vacated by the justice who granted it, on the ground that the information required by plaintiff should be obtained by a bill of particulars, and upon the further ground that some of the facts asked for are within the knowledge of plaintiff, but his affidavit states that not only are the facts constituting the counterclaim not within his knowledge but are peculiarly within the knowledge of defendants, the vacating order will be reversed.</p>

<p>Contracts — provision for advances to employee—advances amounting to sum in excess of commissions — pleading.</p> <p>Where a contract of employment provides for advances to an employee which are to be charged to, and deducted from, commissions. agreed to be paid him, as the same may accrue, the employer, in the absence of either an express or implied agreement or promise to repay any excess of advances over commissions earned, may not recover such excess.</p> <p>Where by a written contract of employment plaintiff agreed to advance to defendant the sum of fifty dollars each and every week during the continuance of the agreement on account of commissions defendant should or might earn, which advances were to be charged to the personal account of defendant and deducted from his earnings, and at the termination of the contract the advances amount to a sum in excess of the commissions earned, an order and interlocutory judgment overruling, a demurrer to the complaint in an action to recover such excess will, be reversed and the demurrer sustained.</p>

Appeal by defendant from an order of the City Court of the city of New York, granting a motion for judgment on the pleadings and from the judgment entered thereon.

<p>Appeal from a judgment of the Municipal Court of ’ the city of New York, borough of Brooklyn, first district.</p>

<p>Appeal, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, sixth, district.</p>

<p>Judgments — landlord and tenant — defense of eviction — action for rent — reversal of.</p> <p>There should not be conflicting judgments upon the same issue.</p> <p>A landlord, upon leasing an apartment house, agreed to furnish steam heat and to keep the premises warm during the winter months, and the tenant upon subletting with the landlord’s approval also covenanted to furnish steam heat during the winter months. The subtenant moved out in March, and in an action against him for rent he set up the defense of eviction through failure to provide heat. On the trial it appeared that the question of eviction because of failure to furnish heat was litigated and decided in a previous action for rent by the lessor against the lessee, that the subtenant had notice of said action and of the defense to be interposed and knew that the lessee must rely on him and his witnesses to establish such defense, and he appeared and assisted by his testimony in the defense of the action upon the issue of eviction. Held, that the judgment in the action by the lessor against the lessee and proof that the issue litigated therein was the same, together with notice to him to come in and defend, were competent evidence in the present action and binding on defendant.</p> <p>That in the circumstances a proper administration of justice could not permit of a recovery of a judgment against the lessee by her lessor upon the ground that there had been no eviction of her subtenant and then allow the lessee to be defeated in her action against her subtenant upon the ground that there was such an eviction, where the subtenant. had been given notice of the first action and an opportunity to defend, and, therefore, a judgment for defendant in the action brought by the lessee must be reversed.</p>

<p>County clerk — docketing of interlocutory judgments for costs. •</p> <p>A county clerk is not required to docket an interlocutory judgment for costs.</p>

<p>Costs—■ taxation of — new trial in County Court—apueal from judgment rendered by a justice of the peace.</p> <p>Where, on a new trial in the County Court upon an appeal from a judgment rendered by a justice of the peace, plaintiff recovers judgment for less than fifty dollars, he is not entitled to tax any costs.</p>

<p>Liens — in action brought by guardian to foreclose mortgage — attorney and client—pleading — Judiciary Law, § 475.</p> <p>Where the answer in an action brought by a guardian ad litem, was only a general denial, and the complaint was dismissed with costs to defendant against the guardian individually, so much of the' report of the referee, in surplus proceedings upon the foreclosure of a mortgage on premises owned by the guardian ad litem as tenant by the curtesy and the infant and another as tenants in remainder, as determines that defendant in the action brought by the guardian ad litem is indebted to his attorneys in the amount of the judgment for costs for services and that they have a lien for the same will be set aside, as, the answer containing no counterclaim, the attorneys under section 475 of the Judiciary Law had no lien.</p>