Volume 81 — New York Miscellaneous Reports

<p>Action to recover the purchase price of merchandise.</p>

<p>Tender — unconditional tender of certified check and currency for amount of principal and interest — when kept good — mortgages — foreclosure.</p> <p>Where defendant immediately-upon purchasing certain premises, for the purpose of paying off a mortgage thereon and procuring a discharge or assignment thereof, took steps through her attorney to ascertain the name and address of the holder of the mortgage hut was unable to ascertain her residence and post-office address until after the commencement of an action to foreclose the mortgage, and had no information as to its having been assigned to plaintiff until after that time, and it appears that during all of the time that plaintiff’s assignor held the mortgage plaintiff acted as her agent or attorney and received the interest on the mortgage for her and was authorized to receive the principal when due, and defendant’s attorney makes an unconditional tender of a certified check and currency for the amount of the interest, and principal due on the day of the tender, it is fair to conclude that defendant was ready, willing and able at all times from and including the day of tender to pay the mortgage, and it must be held that the tender was kept good; defendant, therefore, is entitled to a judgment dismissing the complaint and requiring plaintiff to either assign or discharge the mortgage, with costs.</p>

<p>Babeas cobptts proceedings.</p>

<p>Action for the partition of real property. Demurrer to complaint.</p>

<p>Motion" to confirm the thirteenth separate report of Business Damage Commission No. 1.</p>

<p>Wills — construction o'f — devise of farm in equal shares to two daughters— charge on farm of legacy — devise in trust, with remainder ■ over.</p> <p>While the courts may not rewrite wills they must correct inaccurate expressions and give effect to the evident intent of testators.</p> <p>Where a devise of a farm to two daughters of the testatrix, in equal shares, provided that, if one of the devisees should die before the testatrix, her share should go to the other children, but in ease said devisee sold her interest in the farm it was charged with the payment of a legacy of $500, and by codicil the devisee’s interest in ease of sale was charged with the payment of $1,500 to be held in trust for her during her lifetime with remainder over, and on her death still owning her interest in the farm the payment of the $1,500 was to be a charge “ upon said farm,” it will be held that testatrix intended in any event to make the $1,500 a charge on the interest or share of said daughter in the farm, which was sold after her death, and in no event to make it a charge on the whole farm, the words “ I charge said farm” being inadvertently used and an inaccurate expression of testamentary intention.</p>

Application of the above named association for a review of the decision of the superintendent of banks in refusing to approve a certain proposed amended by-law of said association.

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

<p>Foreclosure — mortgages — action to foreclose by trustee in bankruptcy— counterclaim for medical services—■ expert evidence as to value of services.</p> <p>Where the mortgagor, the only defendant who appeared in an action by a trustee in bankruptcy to foreclose a mortgage on which was due $2,000 which had been assigned to the bankrupt, sets up a counterclaim of $2,500 for medical services rendered the bankrupt in his last illness, and it appears that after attempting to commit suicide at a hotel in the city of Newark, N. J., he was removed to a public hospital and his wife, on her way from New York city, telephoned to defendant who had been the intimate friend and family physician of her husband for years, and as such physician he remained in almost constant attendance until the patient died several days after, and * expert testimony as to the value of defendant’s services widely varied, he will be allowed $750 therefor, and plaintiff given judgment for $1,250 with interest, no costs to either party.</p>

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

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

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

<p>Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, - second district, entered in his favor for $125 upon the verdict of a jury, and also from an order denying his motion to set the verdict aside on the ground of inadequacy.</p>

Appeal by defendant from an order and decision of the Municipal Court of the city of New York, borough of Manhattan, second district, overruling the traverse of the defendant, and from the judgment thereupon entered in favor of plaintiffs.

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

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

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

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

Appeal by plaintiff from an order of the Municipal Court of the city of New York, borough of Manhattan, second district, setting aside the verdict of a jury.

<p>Bailment — notice to consignee —liablity that of a bailee and not that of a carrier — carriers — warehousemen — judgments.</p> <p>Where on the arrival of goods, shipped by plaintiffs on defendant’s railroad, at the point of destination in good order and within a proper time, notice was given to the consignees who refused to receive the goods, not having ordered them, and the plaintiffs received due notice of such refusal and defendant is in no way responsible therefor, its liability is that of a bailee and not that of a carrier.</p> <p>The fact that defendant, on receiving notice that the goods had been delivered, notified plaintiffs to that effect, but the information turned out to be false and was corrected several months later, created no new liability on the part of defendant, who believed the information -to be true; nor did such false notice constitute negligence when at the time it was given defendant owed no duty to plaintiffs in respect thereto, but only to use ordinary care in safely keeping, the goods in its storage warehouse.</p> <p>A judgment in favor of plaintiffs, in an action for negligence in failing to furnish them with accurate information regarding the delivery, reversed, and a new trial ordered.</p>

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

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

<p>Penalties — action to recover — judgment — appeal.</p> <p>A judgment in favor of plaintiff, in an action to recover a penalty for selling a bottle of hydrogen peroxide which contained less than three, per cent of hydrogen dioxide as required by law, affirmed.</p>

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

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

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

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

Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, second district, entered upon a verdict rendered in favor of the plaintiff, and from an order denying a motion for a new-trial.

<p>Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fourth district, entered in favor of the defendant on the verdict of a jury.</p>

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

<p>Appeal by plaintiff from an interlocutory judgment of the City Court of the city of New York.</p>

<p>Attorneys — attorney , and client — money belonging to client — compelled by summary proceedings to pay over.</p> <p>Accord and satisfaction — receipt given on payment of retainer —■ acceptance and demand — action to recover balance.</p> <p>The relation between attorney and client, in regard to money collected, is that of principal and agent, not that of debtor and creditor; the money belongs to the client and the attorney may be compelled by summary proceedings to pay it over.</p> <p>Where a receipt given to plaintiff, on paying a retainer to defendant to bring an action on a claim under a policy of insurance, stated that it was understood that defendant should have in addition to the sum paid twenty per cent, of any recovery in the case, which resulted in plaintiff’s favor, and defendant, claiming that it was the understanding of the parties that such percentage was to be for any adjustment of the claim or collection thereof without action, sends to plaintiff a check for the amount recovered less thirty-three and one-third per cent, upon which was written “ in full settlement ” and plaintiff, retaining the check, immediately wrote to defendant that he would not accept it in full settlement and demanded the balance which defendant refused to pay, a judgment in defendant’s favor in an action to recover said balance, given on the ground that plaintiff’s acceptance of the check operated as an accord and satisfaction, will be reversed and a new trial granted.</p> <p>Guy, J., dissented.</p>

<p>Lease — action for rent — landlord and tenant — agreement for lease at some future time to be determined.</p> <p>An action for rent may not be predicated on an agreement for a lease at some future time to be determined at the will of the intending, lessor.</p>

judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, in favor of -the defendant entered upon a trial by the court without a jury.

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

<p>Appeal by the plaintiff from an order of the Municipal Court of the city of New York, borough of Manhattan, first district, vacating and setting aside the judgment rendered in favor of the plaintiff.</p>

Appeal by the tenant from a final order in summary proceedings of the Municipal Court of the city of New York, borough of Manhattan, ninth district, entered in favor of the landlord.

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 after a trial before the court without a jury.

Appeal by the plaintiff from a judgment of the City Court of the city of New York dismissing the complaint with costs at the close of the plaintiff’s case.

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 from an order denying a motion for a new trial.

Appeal by the plaintiff from a judgment of the City Court of the city of New York, dismissing the complaint upon the merits.

<p>Appeal from a judgment of the Municipal Court of the city of New York, borough, of Manhattan, fifth district dismissing the complaint, with costs, after a trial by the court without a jury.</p>

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

<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 a verdict directed by the court.</p>

<p>Appeal by plaintiff from an order of the City Court of the city of New York setting aside a verdict in favor of plaintiff.</p>

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

Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fifth district, entered in favor of the plaintiffs upon the verdict of a jury..

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

' Appeal by plaintiff from an order of the City Court of the city of New York, setting aside a verdict in favor of plaintiff for $1,581.49 together with interest.

Appeal by plaintiff from an order of the City Court of the city of New York, setting aside a verdict of the jury in favor of plaintiff, as against the weight of evidence.

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.

<p>Appeal from an interlocutory judgment of the City Court of the city of New York sustaining a demurrer on the ground of defect of parties plaintiff.</p>

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

<p>Supreme Court — justices of, conservators of the peace—delegation of power to justice of.</p> <p>Military Law, § 115 — prevention and suppression of riots — justice of Supreme Court vested with power to issue call for military aid — mandamus directed to county treasurer to issue certificate to pay troops.</p> <p>Justices of the Supreme Court are conservators of the peace and have all the power of officials known as magistrates.</p> <p>The' delegation of power to a justice of the Supreme Court to call out the National Guard is not the exercise of another office, or public trust, in the constitutional sense.</p> <p>Under the provisions of the statute (Code Grim. Pro., §§ 102, 104, 111, 112), relating to the prevention and suppression of riots, and section 115 of the Military Law, a justice of the Supreme Court is vested with power to issue a call for military aid where, in consequence of a street railway strike, there had been for several days an almost total cessation of street car traffic and much disorder, and the military authorities have no alternative but to obey.</p> <p>Where the brigadier-general on whom such an order was served immediately called out his brigade in aid of the civil authorities, and his troops were in active service in pursuance of such order until the -justice making the same had granted a further order terminating such service and dismissing the troops, a peremptory mandamus will be granted directed to the county treasurer to issue the certificate required by law upon which the money is to be raised to pay the troops, upon presentation to him of the certified pay-rolls of the troops.</p>

<p>Action to oust defendant from the office of commissioner of elections of Cayuga county.</p>

Petition by the relator for peremptory writ of mandamus to compel his reinstatement by the city engineer of the city of Troy to the position of inspector of masonry and concrete upon the new Central School building in the city of Troy.

<p>Application for instructions to a receiver.</p>

<p>Public Officers Law, § 5 — expiration of term of office of state commissioner of labor — vacancy in office occurring or existing otherwise than by expiration of term.</p> <p>Where the term of office of the state commissioner of labor expired December 31, 1912, but he continued thereafter to discharge the duties of the office until his successor should be chosen and qualified pursuant to section 5 of the Public Officers Law, his so-called resignation after the adjournment of the legislature had no effect upon the “ vacancy ” which under said section was deemed to exist for the purpose of naming the successor, and the vacancy was, therefore, one which occurred during the session of the senate which could be filled by the governor only with the advice and consent of the senate and was not a vacancy occurring or existing otherwise than by expiration of term while the senate was not in session.</p>

<p>Pleading—action by minority stockholders to set aside agreement — dismissal of complaint.</p> <p>The pleadings in an action brought by minority stockholders to set aside the agreement known as the “ New York Central Lines Equipment Trust of 1913,” on the ground that it was ultra vires and illegal, considered, and the complaint dismissed.</p>

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

<p>New trial—motion to set aside verdict upon conflicting evidence — master and servant — negligence.</p> <p>While plaintiff and another member of the emergency crew of a street railway company were holding up one of defendant’s telephone poles, located just inside the curb and which had broken off close to the ground and fallen into the street across a trolley wire which was charged with a high voltage of electricity, defendant’s employees started to saw the pole near the cross-arm end and trolley wire and before the pole was sawed through it snapped in two and the upper section, which had no support except from plaintiff and his fellow servants, fell and struck plaintiff on the foot inflicting severe and permanent injuries. On the denial of a motion to set aside a verdict in plaintiff’s favor rendered upon conflicting evidence and for a new trial, held:</p> <p>That plaintiff was not a fellow servant of defendant’s employees, nor was he an emergency servant.</p> <p>That when plaintiff placed himself in the position of holding up the pole to relieve the strain on the trolley wire, which strain was increased by the action of defendant’s employees in cutting the wires, he was carrying on his master’s business, and at that time defendant was under legal obligation to exercise due care while doing the work.</p> <p>That the question of the negligence of defendant and plaintiff’s freedom from contributory negligence was, upon all the evidence, one for the jury, and it having found in plaintiff's favor the motion to set aside the verdict and for a new trial will be denied.</p>

<p>Motion to set aside an order oonfirming the report of commissioners in condemnation proceedings.</p>

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

<p>Contracts — agreement to support grantors during their lives — action to recover funeral expenses.</p> <p>A decedent is under no obligation to preserve or retain Ms property until Ms death that it may be subject to payment of his funeral expenses; and if, in good faith, he disposes of all his property prior to Ms death, he commits no fraud upon one who after his death should see to Ms decent and proper burial.</p> <p>Where, by. a written agreement under seal, the grantee under conveyance of certain real estate agreed to support the grantors, who were husband and wife, during their lives and at their decease to pay their respective funeral expenses, no action is maintainable on said agreement to recover the funeral expenses of the husband by the administratrix of the undertaker to neither of whom the decedent owed any duty or obligation in the premises.</p>

<p>Mortgages — foreclosure of — purchase money mortgage — pleading.</p> <p>A purchase money mortgage cannot be changed or modified by oral testimony of an agreement to extend into or upon the property improvements of water and gas and to grade and pave the street in front thereof.</p> <p>Where, in an action to foreclose the mortgage, the answer makes no claim that said alleged oral agreement comes within the exception regarding collateral agreements and pleads no counterclaim for damages growing out of the failure to keep such agreement, plaintiff is entitled to judgment for the amount of the mortgage.</p>

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

<p>Action for the foreclosure of a mortgage.</p>

<p>Damages — caused by overflow of sewer — city of New York chargeable with negligence in not sooner remedying defects of sewer.</p> <p>Where it is not shown that there was any defect of original construction of a sewer which could account for or reasonably be expected to have caused a stoppage therein on an isolated occasion, but it is shown that the sewer on account of the grade of the street had an unusually good opportunity for clearing itself of obstructions, the city is not liable for damages resulting from an overflow of the sewer provided it used reasonable diligence in remedying the defect after notice of its existence.</p> <p>Evidence in an action against the city of New York for damages caused by the overflow of a sewer, that plaintiff’s husband between six and seven p. m. found water standing in the cellar of their house; that an inspector of the building department was sent for and visited the premises between eight and nine the same evening, and upon visiting the premises the next day telephoned to one in charge of the unsafe building division of the bureau of buildings who, the next day, reported the fact to thé then superintendent of buildings who promptly communicated with the sewer department and about . 12:30 on that day the obstruction in the sewer was removed and the water then flowed off, does not show any negligence on the part of defendant which can be said to have caused the stoppage of the sewer, or that defendant had omitted to exercise a reasonable degree of watchfulness in ascertaining its condition from time to time.</p> <p>That the city through its employees was chargeable with negligence in not sooner remedying the defective condition of the sewer and defendant was liable for the damages resulting from such negligence.</p>

<p>Wills — bequest of residuary estate, all personal, to trustees — intention of testatrix—vesting.</p> <p>Where testatrix, who was survived by five adult children, one of whom, a son, died intestate, married and without issue and two of the other children are married and have minor children, bequeathed her residuary estate, all personalty, to trustees in trust (1) to hold and invest the same and collect the income therefrom and pay the same to her children share and share alike during their respective lives?; (2) on the death of any of said children the trustees were directed to pay to him or her issue, share and share alike, one equal part of the estate on the basis of a division thereof into as many parts as there shall be children surviving testatrix; (3) “In ease any of my said children shall leave no issue him or her surviving, then I direct that said share set apart to him or her in. trust as aforesaid shall be disposed of as he or she may direct by his or her last will and testament, and failing such disposition by him or her, then I direct that such share shall fall into my residuary estate and be distributed as hereinbefore provided. (4) In ease any of my said children shall predecease me, leaving issue him or her surviving, then I direct my said trustees to pay over to such issue, share and share alike, that portion of the income of my said estate to which such child would have been entitled if living, and on the death of any one of the other surviving children, then I direct my said trustees to pay to said issue, share and share alike, one equal part of said estate as provided in subdivision 2 thereof,” the testatrix intended that in the event of the death of any child without issue surviving and without disposing of its share by will, the share of such child should be divided into as many subshares as there were children then surviving, which sub-shares should be added to and form a part of each of the subsisting trusts; that, upon the death of each child, the sub-shares so added should vest in its issue, if any; that if any such child should die intestate and childless the subshare held for such child should vest, in the decedent’s next of kin, if any, as of the date of decedent’s death.</p>

<p>Easements — right of way by necessity — lease — oral permission without consideration — license — revocable at will.</p> <p>Where plaintiffs, the lessees of a building having a basement, ground floor and five factory lofts, sublet the basement, ground floor and first floor to defendants, sublet the second loft to another party and occupied the remaining lofts as a shirt factory, and subsequently defendants, who at their own exclusive expense installed two mains to supply water intended for their exclusive use, at plaintiffs’ request, gave oral permission for a connection with one of their mains to furnish water to the second loft upon the express condition that said connection was to be discontinued on their request, defendants were within their rights in cutting off said connection where, after due notice, plaintiffs had failed so to do.</p> <p>It is well settled that an implied right of way must rest on —no/uK-iaty and cannot be supported merely upon a convenience.</p> <p>:e the lease to defendants contained no right of ingress ress to a freight elevator running from the ground floor •rving all the lofts, defendants’ oral permission, made .t consideration, for plaintiffs to pass through the ground co the elevator constituted a mere license revocable at</p> <p>it while it would be more convenient for plaintiffs to 5,000 pounds of material used daily by them taken up down in the elevator than to be carried by the stairway d from their lofts, there was no implied right of way by sity through the ground floor leased to defendants.</p>

<p>Depositions — action for breach of promise of marriage—motion to vacate order for examination of defendant before trial.</p> <p>Where the defendant in an action for breach of promise of marriage, besides a general denial, pleads as a separate defense a general release before the commencement of the action, which is not denied, a motion to vacate an order for the examination of defendant before trial as to his means and financial affairs will be granted.</p>

<p>Motion to vacate an order for the examination of the defendant.</p>

<p>Motion to vacate a lien.</p>

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

<p>Motion to compel the plaintiff to pay the fees and disbursements of a referee.</p>

<p>Action by administrators to seek the enforcement of a decree of the Surrogate’s Court of Sullivan county.</p>

<p>Contempt — in action for specific performance — delivery and filing of deed with clerk of court — judgments.</p> <p>Where the judgment in an action for specific performance, while directing defendants to receive and accept the deed of conveyance theretofore tendered and pay plaintiffs a certain sum, provides that if they refuse so to do the deed shall be filed with the clerk of the court and that upon such delivery, or filing, defendants shall pay the amount of the judgment and that plaintiffs shall have execution therefor, defendants may not be punished as for contempt for failure to pay the money.</p>

<p>Mottos by defendant for an order directing a reference or a writ of inquiry.</p>

<p>Action to recover the price of goods sold and delivered.</p>

<p>Bankruptcy — petition in — action for partition — contingent and vested interests — Bankruptcy Act of 1898, § 70.</p> <p>By the will of a widow who, at her death, was equal owner with her surviving daughter of a hotel property devised to them by her husband, all of her estate real and personal was devised and bequeathed to said daughter for life and then to thq son of testatrix should he be living; if not, the property was to be equally divided among “ his then living children.” .The son died leaving him surviving his sister, his widow, two daughters and a son. The sister died leaving all her estate to her husband. In an action brought by him for a partition of the hotel property, held, that the interest of the widow’s- son in said property was contingent and not vested, and upon 'the filing of a petition in bankruptcy against him said • interest lodged in his trustee under section 70 of the Bankruptcy Act of 1898.</p>

<p>Motion for a retaxation of costs.</p>

<p>Equity — action to cancel chattel mortgage — mortgagor deprived of property and opportunity to establish illegality of transaction.</p> <p>Judgments — when set aside on motion as irregular — Code Civ. Pro., § 1022.</p> <p>An action in equity lies to cancel a chattel mortgage tainted with usury where the mortgagee has taken possession of the property pledged as security for the loan and thus avoided bringing the instrument before the court, thereby depriving the mortgagor both of his property and an opportunity to establish at law the illegality of the transaction.</p> <p>Where no decision has been made and filed, as required by section 1022 of the Code of Civil Procedure, the judgment entered thereon will be set aside on motion as irregular and premature.</p>

<p>Action to determine the relator’s right to hold the office of supervisor.</p>

<p>Costs — in action to recover real property — damages for unlawfully withholding possession of real property.</p> <p>Where, in an action to recover real property and damages for withholding same, plaintiff recovers judgment for the possession of the property and for six cents damages for the unlawful withholding of the same, defendant, who also recovered a verdict of six cents damages on a counterclaim for unlawful interference with its easement to maintain water-mains in the public highway adjacent to the premises sought to be recovered, is not entitled to costs, plaintiff having succeeded in the action.</p>

<p>Action for partition.</p>

Action by a corporation against defendants, charging them with the commission of alleged illegal acts and practices while they were officers and directors, of said corporation.

<p>Mandamus — city of New York — suspension from office as chief inspector in bureau of buildings — decision of borough president — misdemeanor.</p> <p>Where plaintiff was suspended from office as chief inspector in the bureau of buildings in the city of New York “ pending the preparation of charges ” which he was informed would be “submitted at the earliest possible moment,” but despite continuous application therefor they were not furnished until four months after his suspension, and he was not allowed to perform his duties until he was voluntarily “ restored to duty ” by the superintendent of buildings appointed to try the charges, and was never found guilty, said charges, if true, constituting not only a violation of the city charter but a misdemeanor as well, plaintiff is entitled to recover the salary due him, and his reinstatement by mandamus was not a prerequisite to an action therefor.</p> <p>The decision of the borough president, who had no duty to review the evidence or to reach any decision, or to fine plaintiff in a sum equivalent to the salary due him, was illegal.</p>

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

<p>Greater New York charter, §§ 837, 834 — license granted hy commissioner of. docks — maintenance of sheds for protection of cargoes.</p> <p>Where one who, pursuant to a license granted by the commissioner of docks under section 844 of the Greater New York charter, leases from the city the outer end of a pier neither designed nor used as a recreation pier and erects and maintains thereon sheds for the protection of cargoes and uses them for that purpose, no vessel may use that part of the pier without his consent; and one engaged in the transportation of passengers and country produce, unless by consent of the lessee, may not use his part of the pier, though section 837 of the charter authorizes the setting apart of piers for the convenience of those engaged in the transportation of country produce to the city for sale.</p>

Appeal by the defendant from a final order in summary proceedings made by a justice of the peace, awarding to the plaintiff the delivery of the possession of certain real property.

<p>Liquor T~x Law, § 27(2)—application for injunction restraining certificate holder from transferring or surrendering certificate until determination of proceedings — vacation of injunction.</p> <p>In a proceeding under section 27(2) of the Liquor Tax Law for the cancellation of a liquor tax certificate, an application for an injunction restraining the certificate holder from transferring or surrendering the certificate until the final determination of the proceedings must be made on a five days’ notice, and an injunction order contained in the order to show cause why the liquor tax certificate should not be canceled will be vacated, with leave to renew the application upon the five days’ notice required by law.</p>

<p>Damages — for injuries to a colt — negligence — evidence.</p> <p>Plaintiff’s colt between two and three years old escaped from its pasture, and after crossing the highway jumped over defendant’s fence into his pasture from which a lane with a barbwire fence on one side and a wall on the other with bars at the end, led into defendant’s barn-yard, which was practically surrounded by a barb-wire fence about three feet high composed of three strands of wire with five sharp barbs to the foot, about half an inch long, and with no bar of wood or anything on top. Defendant, using his own horse as a decoy, got plaintiff’s colt back into the lane and put Up the bars, and while he was leading his own horse across the highway plaintiff’s colt jumped over the bars between the lane and the barn-yard and then jumped from the barn-yard over the wire fence between the barn-yard and the highway and in so doing1 became entangled in the barb wire. In an action for damages for injuries to the colt, held that there was evidence from which negligence on the part of defendant might reasonably be found, and that a judgment in plaintiff’s favor would not be disturbed.</p>

Action to recover the amount of a deposit standing in the name of William Glynn in defendant bank, claimed to have been illegally withdrawn.

<p>Divorce — foreign decree of absolute —■ action for separation — motion to punish for contempt for failure to pay alimony.</p> <p>Where, after the granting of a decree in an action for separation, plaintiff obtains a foreign decree of absolute divorce, defendant’s motion to modify the decree in the separation action as to the payment of alimony will be granted, and plaintiff’s motion to punish defendant for contempt for failure to pay alimony in the separation action after the granting of the foreign divorce will be denied.</p>

<p>Motion by defendants Schuster for judgment on pleadings, dismissing complaint.</p>

<p>Title — muniments of — examination of deeds, etc.</p> <p>Deeds — covenants contained in — injunctions.</p> <p>A grantee of land is chargeable with notice by implication of ■ every fact affecting the title discoverable by an examination of the deeds or other muniments of title of his grantor, and of every fact as to which the grantee, with reasonable prudence or diligence, ought to have become acquainted.</p> <p>Where the owner of two adjoining lots in a residential district where the neighboring houses were well back from the street 'conveyed one of said lots to plaintiff for full value by a deed containing a valid covenant that no building should be erected on the grantor’s adjoining lot nearer the street than the dwelling on the lot conveyed, defendant to whom the adjoining lot was thereafter conveyed is chargeable with notice of the covenant in plaintiff’s deed,.though in the deed to defendant there was no covenant or restriction and no reference to the covenant in plaintiff’s deed which had been recorded.</p> <p>Such covenant was intended as a restriction upon the lot corn-eyed to defendant for the benefit of plaintiff’s property and to enhance its value, and plaintiff was entitled to a judgment restraining the violation of said covenant.</p>

Au application is made in each of the above entitled proceedings for a peremptory writ of mandamus requiring the comptroller of the state to pass upon the claim of each of the relators covering an alleged excess payment of tax under the stock transfer act.

<p>Fraudulent conveyance — conveyance of certain real estate to corporation controlled by husband of grantor — action to set aside conveyance for fraud — lunatics.</p> <p>Trusts—i wills — substituted "trustee — liability of surety company on bond of trustee — actions.</p> <p>Where a wife, through the fraud of her husband and without valuable or lawful consideration, conveys certain real estate to turn corporations which he controlled and of which he was president, and the husband knew that at the time and for many years his wife had been of unsound mind, the grantees are chargeable both with notice of the fraud and of the grantor’s mental condition.</p> <p>Where on the trial of an action by the sole heir at law of the grantor to set aside the conveyance for fraud there is no evidence of the due execution of a paper purporting to be the last will and testament of said grantor and which was a part of the husband’s scheme to get absolute control of her property, the presumption is that she died intestate.</p> <p>Where the wife created a trust irrevocable except by her last will and testament, by the terms of which her heirs at law upon the execution of the trust deed took a vested remainder in the principal of the trust fund which was liable to he wholly divested either by their prior decease or the grantor’s last will, and her husband having- had himself made a substituted trustee received the principal of the trust fund and converted the same to his own usé, the surety company on his bond was liable therefor to plaintiff as remainderman.</p> <p>That the wife was insane when she created the trust was no defense to the trustee and his surety for misappropriation of the fund, and the liability of the surety may be established in an action to recover the amount without an accounting as a condition precedent.</p>

<p>Deeds — covenants that no building shall be erected on lots except private residences and private stables in rear — prohibition of railroad embankment.</p> <p>A covenant in a deed of conveyance o£ certain lots that no building or structure of any character shall be erected thereon except private residences and private stables on the rear of such lots, prohibits the building of a railroad embankment on any of said lots for the operation of electric cars.</p>

<p>Motion for the appointment of commissioners of estimate and a commissioner of assessment for the purpose of acquiring an easement.</p>

Action to foreclose a lien under a contract for a public improvement. At the time when the alleged lien was filed, there was no fund due the contractor from the city under the contract, and the defendant Fidelity and Deposit Company of Maryland, therefore, claims that the alleged lien was not a valid one.

<p>Dower — action for—when widow barred of dower rights.</p> <p>Wills — construction of provisions of — general and specific legacies — statutes of the District of Columbia — dower.</p> <p>By the will of a testator who died a resident of the District of Columbia and was the owner of real estate therein and this state, after certain general legacies and specific legacies to his widow and others, the remainder of his estate, real, personal and mixed, then owned by him or that he might thereafter acquire, was devised and bequeathed to his widow and two children all of whom survived him. At the time of his death a statute of the District of Columbia provided, in effect, that any provision made for the wife of a testator by his will should be construed as intended to be in bar of her dower rights unless otherwise expressed in the will, and that the widow should be barred of her dower by such a provision unless within six months after the granting of administration she should file a written renunciation of the testamentary provision in her favor. The will was admitted to probate in the District of Columbia, the widow did not renounce under said statute but accepted the specific legacies given her by the will and also her share of the residue of the personal estate and one-third of the income of the real'property. Held, that she was not entitled to maintain an action for dower and mesne profits in the land situated in this state.</p>

<p>Liens — who may secure — who may file — Lien Law, § i — verification of notice of lien by assistant treasurer of a corporation— contracts.</p> <p>A materialman may secure a lien for the balance due for all materials furnished for the construction of a building by filing under section 10 of the Lien Law a notice of lien within ninety days of the time the last item of material was furnished.</p> <p>The term “ materialman,” within the meaning of section 2 of the Lien Law, includes one who has produced or sold materials that are incorporated in or attached to real estate by the labor of others, though such materials were specially manufactured for the building in question.</p> <p>A corporation formed by the consolidation of two others,' pursuant to section 7-10, inclusive, of the Business Corporations Law, may file a notice of lien for materials furnished by it after such consolidation, and also for material furnished prior thereto by one of the combining corporations.</p> <p>A verification of a notice of lien by the assistant treasurer of a corporation upon information and belief, though not in the form prescribed by the statute, is a substantial compliance therewith where all of the statements in the notice of lien are made on information and belief.</p> <p>Where a subcontractor to install plumbing materials in a building became financially involved, another corporation which agreed to and did furnish the materials directly to the contractor, charging the same on its books to it, was a materialman furnishing materials to the contractor, and the latter was primarily liable and was not merely a guarantor of the original subcontractor for such materials.</p> <p>Fire hose and racks attached by screws to the wall as accompaniments to a fire extinguishing system and easily detached do not come within the Lien Law.</p> <p>Where a contractor has not fully performed its contract and because of the filing of notices of liens it was not in a position .to demand payment of the balance due on the contract, the owner of the building will not be charged interest on such balance.</p>

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

<p>Motion by plaintiff to continue an injunction.</p>

<p>Villages — charter of — funds of village on deposit in a bank of which village treasurer was employee — official bonds of village treasurer — form of — Village Law.</p> <p>Where the treasurer of a village who was an employee of the bank where the village funds were on deposit, upon the election of his successor in office who was also the teller of the same bank, directed the transfer of the village funds to, and they were thereafter carried on, the bank’s books in the name of the new treasurer, but the former treasurer gave no check for the amount, the new treasurer, who with knowledge of the facts acquiesced in the transfer and paid village orders drawn on the funds treating them as checks, was liable to the village for the loss of the balance standing to his credit when the bank became insolvent, the trustees of the village having designated no depository for the funds.</p> <p>Where the assistant cashier of the bank, by letter, offered to pay interest on a particular fund if left for a period of six months or longer, the acceptance of such interest did not make the bank a depository of the village funds nor relieve its treasurer from liability for loss of the funds upon failure of the bank, as such interest belonged to the village.</p> <p>Where the new treasurer in compliance with a resolution of the village trustees fixing his official bond at $25,000 on the same day gave a bond for $10,000, and another for $15,000, the fact that they were approved on different dates did not affect the liability of the sureties thereon.</p> <p>That one of the sureties on one of said bonds was a trustee of the village, had the active management of said bank and ought to have known its financial condition, did not relieve the treasurer or his sureties from liability for loss of the village funds upon the bank becoming insolvent.</p> <p>The treasurer’s bonds being joint and several, it was optional with the village to sue or refrain from suing such of the parties as it might be advised.</p> <p>The fact that after the resignation of its treasurer the village received a dividend from the trustee in bankruptcy of the bank did not indicate the previous designation of the bank as the depository of village funds, nor was it a waiver of its rights on the treasurer’s bonds.</p> <p>The liability of one of the sureties on the $10,000 bond, conditioned that the treasurer should faithfully execute the duties of his office and properly account for and turn over all moneys or other property of the village received by him, was not affected by the fact that prior to the execution of the bond the other surety who was a trustee of the village and a part owner of the bank had assured him that the bond did not cover a particular fund which, as he stated, was covered by another bond.</p> <p>Notwithstanding the charter of the village uses the word “ bond ” and the Public Officers Law uses the word “ undertaking” the execution of the two bonds of the treasurer was not unauthorized, and the liability of the sureties thereon was the same as if they had executed a single bond, and the approval of the $10,000 bond did not constitute a modification of the resolution fixing the treasurer’s bond at $25,000.</p> <p>That one of the bonds was couched in language other than that prescribed by the statute and apparently was limited in its scope to a portion instead of all the village moneys did not affect the other bond which conformed to the statute.</p> <p>Where upon the strength of the bond which did not conform to the statute the treasurer was permitted by the village trustees to receive and continue in control of the funds to which the bonds related, it was enforceable to the extent of its penalty for the treasurer’s failure to pay over the fund to the village on demand, in view of the provisions of section 11 of the Public Officers Law.</p> <p>Where the form of a village treasurer’s bond differs from that prescribed by statute, the liability of the sureties is measured by the statute and not by the language of the obligation itself.</p> <p>After the approval of the $10,000 bond the board of trustees had power, under section 58 of the Village Law and the provisions of the village charter, to exact the giving of another and concurrent or additional bond, and where the same was accepted and approved by formal resolution it was valid, even though the action of the hoard of village trustees in requiring it was informal and without evidential record in the minute book of the village.</p>

<p>Telephone companies — franchise granted hy city of Syracuse — contracts —■ injunctions.</p> <p>In 1887 a franchise was granted hy the city of Syracuse for the construction and maintenance of a telephonic plant on condition that for a period of six years the total annual charge to each patron within a one-fourth mile radius from the central office of the company should not exceed forty-eight dollars, and the company was to furnish its patrons with the most modem and approved appliances for prompt, efficient and satisfactory service. Ten years later the company accepted a franchise to construct a subway under the surface of several streets subject, however, among other things, to the condition that it should not increase the rate for service. Thereafter contracts which fixed the maximum charge within the one-fourth mile radius at eighty dollars were procured and such subscribers were placed upon metallic currents and long distance service, but, notwithstanding, some contracts were made at the old rate, and one was made in 1905 with plaintiff, whose office was within said radius, and said contract continued until 1912, at which time defendant, which since its merger with the original company in 1909 has been the only company furnishing telephonic service in said city, notified plaintiff that he must thereafter pay at the rate of sixty dollars a year or his contract would be terminated. Held, that plaintiff upon payment or tender of forty-eight dollars per annum was entitled to an injunction restraining defendant from discontinuing its telephone service at plaintiff’s office, and commanding defendant to furnish plaintiff at said place a telephone service as efficient as that furnished him by the original company in 1897.</p>

<p>Action to compel specific performance of a contract for the sale of certain shares of stock. Demurrer to complaint.</p>

<p>Action by plaintiffs, as stockholders, to compel de- • fendants to account. Demurrers to complaint.</p>

<p>Equity — partnership — corporations—release of plaintiff from all liability on various instruments.</p> <p>Where plaintiff and defendant R., who had agreed to form a partnership, fiually organized a corporation and after the articles of incorporation were signed they immediately secured a long-term lease of suitable premises for the proposed business which provided that it should be assigned to a corporation then being organized of which they were the principal stoekholders; and it appears that R.’s election to continue the business without plaintiff, because of differences, resulted in R.’s continuing’ to avail himself of the lease and certain machinery for the value of which plaintiff was liable, plaintiff having no participation in the responsibilities of the profits of the business should not be compelled to continue indefinitely answerable on these claims and helpless against R.’s possible default; and in order to adjust the equities of the situation R. will be required to secure a release of plaintiff from all liability on the several instruments jointly executed by them, or if that cannot be obtained then he shall protect plaintiff by a sufficient undertaking and also permit him to withdraw the amount, deposited by him in bank to the joint account of himself and R., of the capital which he had agreed to furnish.</p>

<p>Stockholder’s action to set aside contracts and for an accounting.</p>