Volume 82 — New York Miscellaneous Reports

<p>Motion to vacate a warrant of attachment.</p>

<p>Carriers — maintaining and conducting stock-yards on premises owned by a railroad corporation for railroad purposes — injunctions.</p> <p>Where, for the convenience of its patrons, a domestic railroad corporation, in connection with its business as a common carrier, maintains and conducts stock-yards on premises acquired, held and owned by it for railroad purposes, it is its duty to serve the public without unjust discrimination.</p> <p>Where by a long course of business between plaintiffs, commission brokers, engaged in buying and selling live stock, and defendant, a domestic railroad corporation, there has been established a custom by which plaintiffs have been afforded the same unrestricted right of access to the pens containing their stock in defendant’s stock-yards as has been accorded to their competitors in business, and it is alleged and satisfactorily appears that while the same freedom is continued as to their competitors the pens containing plaintiffs’ stock are locked, occasioning great delay in obtaining access thereto, to the serious inconvenience to plaintiffs and to their customers, and that this course of business is calculated to cause irreparable injury to plaintiffs by the loss of opportunity for sales of their stock, they have no adequate remedy at law and will be granted an injunction restraining defendant from discriminating between them and their competitors.</p>

<p>Bill of particulars — when required to furnish—negligence— Labor Law.</p> <p>In an action brought under the Labor Law to recover for personal injuries to plaintiff’s intestate resulting in his death, the defendant may be required to furnish a bill of particulars of the alleged contributory negligence of the deceased when pleaded as an affirmative defense.</p>

<p>Action in equity to enforce a judgment rendered by the Peacemakers’ Court of the Allegany Reservation of the Seneca Nation of Indians.</p>

<p>Costs — retaxation of — agreement by'attorneys as to disbursements and expenses — when plaintiff not precluded from taxing trial fee when mileage fee of witnesses disallowed.</p> <p>Where on a motion for retaxation of costs it appears by affidavit that an allowance of $100 to plaintiff was made as a condition of granting defendant’s motion to postpone the trial for the payment of the witness fees and other expenses of the trial incurred by plaintiff to that time, and it was agreed by the attorneys for the respective parties, without taxation of the items, that plaintiff’s disbursements and expenses would aggregate about that sum, which they did, plaintiff is not precluded from taxing a trial fee.</p> <p>Where, after the trial was begun and on a Friday afternoon, the court adjourned until the following Monday at 1 P. M., and material witnesses for plaintiff who were under subpoena and in attendance when the adjournment was taken went to their homes about fifty miles from the court-house and returned to attend court at the adjourned hour, the mileage fees of said witnesses for returning to their homes at the adjournment and for coming back should be disallowed.</p>

<p>Action to recover for the education and maintenance of a deaf mute under the age of twelve years. Demurrer to complaint.</p>

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

<p>Insurance (fire) — delivery of policy — issuance of policy with full knowledge of facts which would render it void in its inception — what constitutes waiver or estoppel as to forfeiture of insurance policy — retention by company of proofs of loss not a waiver of forfeiture.</p> <p>Where upon the delivery of a fire insurance policy to plaintiff which provided that it should be void in case the insured already had other insurance on the property “ not notified to the company,” or in case of insurance thereafter made should not with all reasonable diligence notify the company and have such insurance indorsed on the policy or otherwise acknowledged in writing, the property was not otherwise insured but thereafter additional insurance was obtained without notice to defendant and having the same indorsed on the policy issued by it, or otherwise acknowledged in writing, said policy though valid in its inception became invalid unless the provision as to additional insurance was waived by defendant, or unless it was estopped from insisting thereon.</p> <p>Where an insurance company issues a policy with full knowledge of facts which would render it void in its inception if the provisions thereof were insisted upon, it will be presumed that it by mistake omitted to express the fact in the policy, waived the provisions, or held itself estopped from setting them up, as a contrary inference would impute to it a fraudulent intent to deliver and receive pay for an invalid instrument.</p> <p>Where seventeen months elapsed before the additional insurance was obtained and twenty-two months before a fire, the company was not estopped from asserting the invalidity of its policy, even assuming that plaintiff asked defendant’s secretary to send with the policy a permit for additional insurance, to which he replied “ all right,” or that on being told ten days later of plaintiff’s intention to procure additional insurance made the same reply, as while notice to defendant of such insurance was shown the indorsement thereof on its policy or other written acknowledgment was necessary to make the consent of the secretary effective.</p> <p>Even if defendant’s secretary told plaintiff that it would be necessary to present her request for additional insurance to the board of directors, that was not an agreement to issue the permit.</p> <p>The holder of a policy of fire insurance is presumed to have contracted with reference to the conditions of the policy, and the limitation of the authority of the company’s secretary to» consent to additional insurance.</p> <p>Where plaintiff was a successful business woman fully able to comprehend and to protect her interests, and there was nothing to prevent her from reading her policy, it will be presumed that she was acquainted with its provisions as she was bound to take notice thereof. ,</p> <p>To constitute a waiver or an estoppel as to a forfeiture of an insurance policy, the insured must have been misled by some act of the insurer, or it must after knowledge of the breach have done something which could only be done by virtue of the policy, or have required something of the insured which she was bound to do only under a valid policy or have exercised a right which it had only by virtue of such a policy, but neither an estoppel nor a waiver can be inferred by mere silence or inaction.</p> <p>Where under defendant’s articles of association its secretary had no power or authority to adjust losses subsequent to a fire, and he on refusing to indorse on plaintiff’s policy a permit for additional insurance informed her that she had twenty days to get in the proofs of loss, that he did not think there would be any trouble but that there might be, there was no waiver of the forfeiture of the policy by plaintiff’s obtaining additional insurance without the consent of defendant as required by the policy.</p> <p>Plaintiff will be presumed to have had knowledge of the limitation of authority of defendant’s secretary as to adjustment of losses contained in the articles of association.</p> <p>The retention by the company of proofs of loss was not a waiver of the forfeiture, although it probably would have been a forfeiture of any irregularity in the proofs themselves.</p>

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

<p>Motions for injunctions pendente lite.</p>

<p>Actios to recover possession of chattels pledged as security for a loan.</p>

<p>Judgment creditor’s action — execution in — when execution ceases to he a lien.</p> <p>It is a defense to an action by a judgment creditor against an employer that, after having pursuant to an execution against the wages of an employee paid over for one week the legal percentage, he thereafter paid the judgment debtor wages of less than twelve dollars a week.</p> <p>The execution ceased to be a lien on the judgment debtor’s wages after said payment of the legal percentage, and defendant properly paid no further sums thereunder.</p>

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

<p>Motion to set aside verdict of $5,000 in favor of the plaintiff rendered by a jury upon a trial, at the May Term of the Supreme Court, 1913, held in Columbia county.</p>

<p>Habeas Corpus proceedings.</p>

<p>Indictment — motion to set aside on statutory grounds — when inspection of minutes of grand jury denied — charging defendant with crime of conspiracy to cheat and defraud the state of New York out of money by criminal means and false pretenses — larceny.</p> <p>An inspection of the minutes of a grand jury will only be granted as the basis of a motion to set aside the indictment upon statutory grounds.</p> <p>Where the only specific ground -stated in the affidavit for a motion to dismiss an indictment is that a special deputy attorney-general, designated to assist in the prosecution of the case and duly appointed by the court to attend upon the grand jury as an assistant district attorney, appeared before the grand jury, examined the witnesses and took part in the investigation which resulted in the finding of the indictment, a motion for the inspection of the minutes of the grand jury will be denied.</p> <p>Where no fact is stated, or information given, from which the court can determine that the district attorney advised the grand jury that it could not -reconsider the vote ordering an indictment before it was physically before the grand jury and actually signed by the foreman, or that such advice, if given, was followed by the grand jury, a motion for the inspection of the minutes will be denied.</p> <p>Where an indictment charging the defendants with the crime of conspiracy to cheat and defraud the state of New York out of money by criminal means and false pretenses sets forth in detail the acts, devices and schemes alleged to have been committed and employed by defendants in planning and consummating the conspiracy, the fact that said acts, devices and schemes may have constituted other and distinct crimes does not invalidate the indictment, nor is it good ground of demurrer that the facts alleged constitute the crime of larceny.</p> <p>The defendants might be indicted and convicted of a conspiracy to commit the crime of larceny even though they accomplished their purpose and feloniously obtained state money.</p>

<p>Judgment creditor’s action — discovery of property belonging to judgment debtor — complaint to set aside as fraudulent certain transfers of property — fraudulent conveyances — transfer of corporate stock with intent to keep it out of reach of creditors.</p> <p>In a judgment creditor’s action for the discovery of property belonging to the judgment debtor, property not specifically set forth in the complaint may be reached.</p> <p>Where, however, the complaint in a judgment creditor’s action to set aside as fraudulent certain distinct transfers of property by the judgment debtor not only contains no allegation of fact to support its prayer for a discovery of any property of the judgment debtor or property held in trust for him by the other defendants, except with respect to the particular property and transactions set forth, and alleges that defendant judgment debtor has no other property out of which a satisfaction of plaintiff’s judgment can be obtained, the court cannot declare void any transfers other than those set forth in the complaint.</p> <p>Where certain real estate was fraudulently conveyed by the judgment debtor to his wife and she did not have any of the proceeds of the sale thereof in foreclosure, and the evidence fails to show that she participated in the fraudulent intent of her husband, no personal judgment should be rendered against her in an action to set aside the conveyances to her.</p> <p>Where the judgment debtor transferred certain corporate stock to a creditor with intent participated in by the transferee that the stock should he held for the judgment debtor to keep it out of the reach of his creditors, plaintiff in a judgment creditor’s action is entitled to a personal judgment against the transferee for the value of the stock at the time of its transfer, though at the time of the trial of the action the stock was valueless.</p>

<p>Action for partition of real property.</p>

<p>Application by the guardian of infants for leave to convey real property.</p>

<p>Taxpayer’s action.</p>

<p>Motion for a new trial on newly discovered evidence.</p>

<p>Application to cancel and discharge a certain judgment.</p>

<p>Motion to dismiss complaint in an action to foreclose a materialman’s lien.</p>

<p>Highways — what constitutes — subject to public right of travel.</p> <p>Title — of state in tidal waters — grant of tidal lands to private individuals or corporations—lands under water — construction of grant of lands under water—encroachment upon beach in front of upland — highways — nuisance. .</p> <p>A beach between high and low water marks constitutes a sort of natural public highway, and although it may not be subject to all the incidents of a regularly established public highway it is subject to the public right of travel by all means used on the highways of the state.</p> <p>Whatever title the state retains in tidal waters, whether originally derived from the jus privatum or the jus publicum, is now held by the state not in a private or proprietary capacity, but as sovereign, and, hence, in trust for the public.</p> <p>Whether the state may lawfully grant tidal lands to private individuals or corporations so as to extinguish the public right of passage, qu<sre?</p> <p>A grant by the state of lands under water and between high and low water marks to an individual, which contains no habendum clause, or words to indicate any intention to surrender or extinguish the public right of passage, does not operate to deprive the public of such right over the foreshore and will be construed as subject thereto upon the principle that such grants are to be strictly construed against the grantee.</p> <p>Semble, the encroachment of the sea and the forcing back of the high water mark upon defendants’ property were occasioned by erosion rather than by avulsion.</p> <p>Whether the high water mark was forced back by erosion or by avulsion the public has the same right of passage over the new foreshore as it had over the old.</p> <p>Certain structures, including fences or barriers, a luncheon pavilion and platform connecting same with a pier, a roller coaster and a machine 'horse railway, encroaching upon the beach in front of defendants’ upland held to be purprestures and public nuisances so far as they, or any of them, project beyond the present mean high water line.</p> <p>The pier and proper approaches thereto, and a jetty, being instruments of proper use to the foreshore by the upland owner, or of protection to both the beach and upland, may remain provided a suitable and convenient means for passage underneath the same is maintained for persons on foot and for vehicles at all states of the tide.</p>

<p>Easements — public, for street purposes—city of New York — granting license to use vault space under sidewalk — ordinances.</p> <p>Where, though by chapter 56 of the Laws of 1784 the city of New York was authorized to acquire the fee of Cortlandt street, the record is silent as to the actual estate acquired, it must be assumed that no greater interest was taken than a public easement for street purposes, the fee remaining in the abutting owner.</p> <p>Assuming that the city of New York may require the owner of the premises at the northwest corner of Cortlandt street and Broadway to procure a license to use the vault space under • the sidewalk on Cortlandt street, an ordinance, so far as it requires the payment of a tax as a condition precedent to the granting of such a license, is illegal and void.</p>

<p>Appeal from a judgment rendered in the Municipal Court of the city of Dunkirk, in favor of plaintiff.</p>

<p>Appeal from judgment of Justice’s Court in the town of Remsen, and for a new trial. Case tried before the court without a jury.</p>

<p>Highways — state commissioner of — charges of malfeasance and misfeasance against a town superintendent of highways — Highway Law, § 105.</p> <p>Courts — power to remove public officer — acts done prior to present, term of office.</p> <p>Where, upon the hearing of charges of malfeasance and .misfeasance in office preferred by the state commissioner of highways against a town superintendent of highways, he admits that he did not file a list of the names of the persons employed by him, as required by statute, and the evidence shows that he and the town board entered into a written agreement which provided for the improvement of certain highways and the expenditure of certain moneys, and he admits that he did not improve the highway specified in and required by said agreement and did not make the expenditures therein called for, but testifies that he spent the money on town highways other than those specified and authorized by said agreement, he knowingly violated section 105 of the Highway Law, was guilty of malfeasance in office as charged and subject to removal, and an order of the town board dismissing the charges must be reversed.</p> <p>An agreement between three members of the town board and said town superintendent of highways, calling for the improvement and repair of the highways which he had already repaired and improved with the money appropriated for the work under the prior agreement, entered into about the time the charges were formulated and with full knowledge on the part of all parties that the official conduct of said superintendent had been investigated and that he had been charged with malfeasance and misfeasance in office, was not a ratification of the unauthorized acts of said superintendent and did not exonerate him from said charges. Notwithstanding, after a full discussion and consideration of said charges the electorate of said town re-elected said superintendent to office, it was imperative on the court to order his removal, his -violation of the statute having been established.</p> <p>It is well settled that the court has no power to remove a public officer for acts done prior to his present term of office.</p>

<p>Demubbeb to complaint in an action to enforce a bond of indemnity.</p>

<p>Default—order opening — extending time of defendant to “plead or otherwise move ” — motions and orders — removal of case to United States court.</p> <p>On August 18, 1913, an order opening a default extended the time of defendant to “ plead or otherwise move ” twenty . days from August 6, 1913, when the answer was due, and at the same time because of an erroneous recital therein an order granted August 4, 1913, for the removal of the ease to a United States court was vacated. Held, that an application made on the day before the time to “ plead or otherwise move ” on a new set of papers for an order removing the case to the United States court was in time, the motion papers and a proper bond approved by the court on the hearing of the motion having been duly filed.</p>

<p>Adverse possession — acquisition of rights by — deeds by plaintiff and predecessors in title given in recognition of and in accordance with map of city of Olean filed in county clerk’s office — injunctions'— Laws of 1858, chap. 70.</p> <p>Where a whole block, including a narrow strip of land conveyed to plaintiff and being parallel to and midway between two streets in the city of Olean, creates a “ jog” on Green street which; does not exist on the official map of the city on file in the county clerk’s office since 1836, and the city in straightening ■ Green street must necessarily cut back a part of plaintiff’s lot included in the “jog,” an injunction restraining such taking must be vacated, it appearing that the deeds of plaintiff and of all his predecessors in title were given in recognition of and in accordance with said map, and that by a statute (Laws of 1868, chap. 70) all the lands described in said map within the lines laid down, including the property claimed by plaintiff, were accepted by the public authorities.</p> <p>Though the particular plot in question had never been used as a public street, neither the plaintiff nor his predecessors in title had acquired rights by adverse possession, or otherwise, which were good as against the public.</p>

<p>City of Buffalo — action to compel defendant to supply illuminating gas for corporate use at a reasonable price — Public Service Commissions Law — injunctions — certiorari.</p> <p>In an action brought by the city of Buffalo to compel defendant to supply illuminating' gas for corporate use at a reasonable price and to restrain it from cutting off the gas supply, an . order denying a motion to set aside a temporary injunction on condition that plaintiff pay defendant a sum equivalent to seventy-five cents a thousand cubic feet for all gas consumed by plaintiff up to the time of the commencement of the action, without prejudice to either party to establish a different price, was modified by reducing the amount to be paid to seventy cents a thousand cubic feet, and, as so modified, was affirmed, Plaintiff paid up the amounts so fixed and since has been . paying at the rate thus established under a contract with another company, and without any participation in the matter by defendant company which since the commencement of the action made repeated but ineffectual efforts to induce plaintiff to join in an effort to determine the proper price to be paid for gas used by plaintiff. Under an amendment of the Public Service Commissions Law, giving defendant the right to file a complaint, it instituted a proceeding against plaintiff for the purpose of arriving at a proper price for defendant’s product which resulted in an order dated February 5, 1913, by which it was found that the just and reasonable maximum price to be charged by defendant for gas to be furnished to plaintiff is'the sum of ninety cents per thousand cubic feet. Said order was served April 5, 1913, since which time defendant has been billing its gas to plaintiff at the ninety cent rate, and more than five months after the service of said order plaintiff filed a petition for a rehearing which was denied. Held, that an order setting aside the injunction orders should be granted to take effect in thirty days from service of notice upon plaintiff of the entry of said order unless plaintiff should in the meantime consent to a trial of the- action before a referee, or to an adjustment of' the controversy between the parties.</p> <p>Also held, that it was too late to review the order of the public service commission by writ of certiorari.</p>

Action for a permanent injunction restraining defendant from erecting a business block in violation of a restrictive clause in a deed of her predecessor in title.

<p>Accounting — of trustees —testamentary trust to receive and pay income to persons named— equitable division of expenses of trustees.</p> <p>Under an ordinary testamentary trust to receive the income and pay the same to persons named during their respective lives, the trustees, upon accounting for certain stock and cash dividends on corporate stock, should present proof from which it may be determined whether any part of the dividends embraced in the account came from the corporate earnings before the death of the testator.</p> <p>There should be an equitable division of the expenses of the trustees’ accounting between the fund of' the trust and the income, and the remaindermen should also contribute to such expense.</p>

<p>Justices’ Courts — jurisdiction of — appeal from judgments of—Code Civ. Pro. § 3013.</p> <p>Where the County Court, on reversing a judgment rendered by a justice of the peace dismissing a complaint, orders a new trial before the same justice on a day certain, at which time the parties appeared by their respective attorneys and by eon-sent the ease was adjourned from time to time and upon the last adjourned day there was no appearance by either party, the jurisdiction of the justice over the parties ceased and he was required by section 3013 of the Code of Civil Procedure to render judgment of nonsuit against the plaintiff, with costs.</p> <p>A subsequent motion by plaintiff in the County Court for an order fixing another date for the trial of the case must be denied.</p>

<p>Justices’ Courts — actions in — judgments — appeal—Code Civ. Pro. § 3063.</p> <p>Where, in an action brought in Justice’s Court to recover thirty-nine dollars and sixty cents for goods sold and delivered, defendant who pleads a counterclaim' for fifteen dollars admits that he is indebted to plaintiff in the sum of twenty-four dollars and sixty cents, a judgment in defendant’s favor on his counterclaim must be reversed as contrary to the evidence and a new trial ordered before the same justice under section 3063 of the Code of Civil Procedure as amended in 1900.</p>

<p>Motion to set aside a warrant of attachment.</p>

<p>Benefit societies — by-laws — failure to pay quarterly dues — action to recover funeral benefit and sick benefits.</p> <p>Where under the by-laws of his lodge a Knight of Pythias who died January 4, 1913, was not entitled to recover sick benefits if he was in debt for more than thirteen weeks’ dues when taken sick, and the by-laws further provided that a “ member who is three months in arrears for dues shall not become a beneficiary until six weeks after such arrearages have been paid in full,” and in an action by his widow to recover a funeral benefit and sick benefits there was evidence from which it might be found that the deceased was not taken with his last sickness until November 28, 1912, and it was not conclusively shown that the cause of death was cancerous condition of the liver, assuming: that such a disease would require a greater length of time, a finding is justified that such fatal illness of deceased commenced after November 25, 1912, and his failure to pay his quarterly dues which were payable September 30, 1912, until the fifth of the following November did not operate to forfeit his right to benefits, and a judgment in favor of plaintiff will be affirmed.</p>

Appeal by the plaintiff from an order of the City Court of the city of New York consolidating seven causes of action brought by the plaintiff against the defendants.

<p>Appeal from an order of the City Court of the city of New York denying a motion to vacate an order for appellant Cowen’s examination in supplementary proceedings, based upon an award of forty dollars and two cents costs made by this court in Cowen v. Bernard, 80 Misc. Rep. 394, in granting Bernard’s motion to compel Cowen to file the deposition of a witness in supplementary proceedings.</p>

<p>Appeal — from order of City Court of city of New York — from judgment of Supreme Court — supplementary proceedings — judgments.</p> <p>An order of the City Court of the city of New York passing the accounts of a receiver appointed in proceedings supplementary to an execution upon a confession of judgment in said court and decreeing payment from funds in his hands, made and entered after an appeal had been taken from a judgment of the Supreme Court in an action brought by a judgment creditor of the judgment debtor against said receiver adjudging the City Court judgment fraudulent and that the money in the possession of the receiver was held in trust for the judgment creditor to the extent of its judgment against the judgment debtor must be reversed.</p> <p>As the final determination of the appeal from the judgment of the Supreme Court may materially afliect the receiver’s rights, there should be no accounting in the proceedings supplementary to execution until the determination of the Supreme Court action.</p>

<p>Negotiable instruments — action against maker of promissory note — bona fide holders — contracts — amendment of pleadings.</p> <p>Where the complaint, in an action against the maker .of a promissory note, alleges that after its making and indorsement by the payee, and before its maturity, it lawfully came into the possession of plaintiff for value, a separate defense, that defendant entered into a contract in writing with the payee to buy its business and to pay a certain sum therefor in four monthly installments for which notes were to.be given; title to the business was passed to defendant on the final payment; that if she should be unable to make any of the payments either party to the contract should have the right to rescind whereupon the business should be returned to the payee of the note and any payments previously made by defendant should be returned to her; that it was thereafter agreed that the notes set forth in. the complaint should be given in place of the four notes above mentioned, but that the payments were to be at intervals and in the amounts set forth in the original contract; that subsequently defendant became unable to make a certain payment and notified said payee of her election to rescind the contract; that said payee retook possession of the business and kept it, and defendant further alleged on information and belief that plaintiff was not a bona fide holder for value of the note in suit, is good, and the direction of a verdict in favor of plaintiff upon a dismissal of said defense is reversible error.</p> <p>Upon an appeal taken only from an order denying plaintiff’s motion for a new trial, all errors committed by the trial court were brought up for review.</p> <p>The allegations of said defense were sufficient to show that by subsequent oral agreement the parties modified the written contract by substituting one note for the-'four notes originally promised.</p> <p>The allegation of the complaint that the note lawfully came into the possession of plaintiff for value is not equivalent to a plea that plaintiff was a holder in due course, and in any aspect was defective as stating merely a legal conclusion, and should plaintiff rely on the presumption accorded in section 98 of the Negotiable Instruments Law that he was a holder in due course defendant was entitled to have considered the allegation of her answer that plaintiff was not a bona fide holder for value.</p> <p>Had the point been raised at the trial that the allegation that plaintiff was not a bona fide holder for value was a legal conclusion, defendant would have been entitled to amend so as to plead that plaintiff at the time he negotiated the note had knowledge of the facts set forth in the separate defense.</p>

<p>Default — motion to open — when defendant relieved from default — appeal.</p> <p>Executions — motion to vacate — order for examination in aid of execution — appeal.</p> <p>Where on motion of plaintiff to declare an appeal from a judgment in his favor abandoned it appears that defendant’s delay in making and serving a case was because of the stenographer’s failure to furnish a copy of the minutes of the trial and the pendency of negotiations between the attorneys for a settlement, defendant should be relieved from his default and both the order declaring his appeal abandoned and the order denying his motion to open the default will be reversed, and the motion granted with an extension of ten days’ time.</p> <p>An order denying defendant’s motion to vacate an execution issued upon plaintiff’s judgment will be reversed and the motion granted.</p> <p>An order denying defendant’s motion to vacate an order for his examination in aid of said execution will be reversed and the motion granted.</p>

Appeal by defendant Kaufmann from an order of the City Court of the city of New York denying the said defendant’s motion to dismiss the action for want of prosecution.

<p>City Court of city of New York — jurisdiction — to restrain enforcement of judgment rendered by Supreme Court.</p> <p>Contempt — affidavit — violation of an alleged stipulation made in open court — evidence insufficient to show that any stipulation was disregarded.</p> <p>The City Court of the city of New York has no jurisdiction to restrain the enforcement of a judgment rendered by the Supreme Court in an action to which a receiver appointed by said City Court is a party.</p> <p>Where the moving affidavit, upon which an order to show cause why appellant should not be punished for contempt was granted, sets forth his violation of an alleged stipulation made in open court not to apply to the Supreme Court for a stay of proceedings in an action commenced in the City Court of the city of New York by a receiver appointed by it, which proceedings the Supreme Court at Special Term had held were in disregard of its final judgment in an action to which the City Court receiver was a party, and the appellant denies the alleged stipulation but admits making a different one which he insists he fully complied with, and he was not formally charged with violating any verbal direction of the City Court justice, and the proof is insufficient to show that he consciously disregarded any stipulation, an order adjudging him in contempt on both grounds will be reversed.</p>

Appeal by defendant from an order of the City Court of the city of New York denying his motion to open a default suffered on another motion.

Appeal by plaintiffs from an order of the City Court of the city of New York granting a motion of defendant to vacate an order for defendant’s examination before trial.

Appeal by defendant from an order of the City Court of the city of New York denying defendant’s motion for judgment on the pleadings.

<p>Pleading — City Court of city of New York — demurrer — judgment in excess of $2,000 cannot be entered.</p> <p>A complaint in the City Court of the city of New York which states a cause of action and demands judgment for $5,000 is good on demurrer, though a judgment in excess of $2,000 cannot be entered.</p>

Appeal by defendants from an order of the City Court of the city of New York permitting an inspection by the plaintiff of the vault of defendants by a mason and an electrician, and allowing a photographer to take photographs of such vault subject to certain restrictions and regulations imposed by the court.

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

<p>Appeal taken by the plaintiff’s attorneys appearing specially on their own behalf from an order in supplementary proceedings directing the chamberlain of the city of New York to pay to the defendant on execution upon a judgment for costs the sum of fifty dollars previously tendered in the action by the defendant and paid into court, and from two subsequent orders denying the appellants’ motion for resettlement of the first order so as to correct pertain recitals therein.</p>

<p>Appeal from an order of the City Court of the city of New York denying the motion of the defendant Harry Ginsberg to vacate and set aside a judgment entered in favor of the respondents on the 3d day of March, 1913.</p>

<p>Appeal from an order of the City Court of the city of New York denying the plaintiff’s motion to vacate an order for his examination before trial as an adverse party.</p>

Appeal by defendant Great Eastern Clay Products Company from an order of the City Court of the city of New York, denying its motion to vacate an order of substitution.

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

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

Appeal by defendant from a judgment of the City Court of the city of New York entered in favor of the plaintiff for $782.73, besides costs, upon the verdict of a jury.

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 plaintiff after a trial by the court without a jury.

Appeal by plaintiff from a judgment of the City Court of the city of New York in favor of defendant, which, in effect, overruled plaintiff’s demurrer to defendant’s separate defense.

Appeal by the defendant from two judgments of the City Court of the city of New York entered npon verdicts directed by the court 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 dismissing the complaint at the close of plaintiff’s case.

<p>Labor Law, § 200 — employers’ liability provisions of — negligence in directing work to be done in unsafe manner by inexperienced men — new trial.</p> <p>In an action brought under the employers’ liability provisions of the Labor Law it appeared that plaintiff, a bricklayer’s helper, was employed in wheeling cement to be put in pier holes for building a foundation. He was working under defendant’s foreman and during the course of the day a number of iron beams weighing from 800 to 1,200 pounds had been placed in such position that they obstructed the gangway used by plaintiff and his fellow workmen. The beams had been placed in position by a derrick and the foreman called Ms gang together to move them in a hurry, and in pushing one of them it toppled over and plaintiff’s thumb was caught between it and the one against wMch it fell. An mexperienced iron worker, without objection, • testified that in handlmg such beams experienced iron workers should be employed and that the beams should have been 'moved either with a derrick or on rollers and with a bar. Held, that the questions whether the foreman had not acted negligently in directing the work to be done in an unsafe manner by mexperienced men without warning or instruction and whether this was not an act of superintendence on the part of an employee “intrusted with and exercismg superintendence whose sole or principal duty is that of superintendence ” within the meaning of section 200 of the Labor Law should have been submitted to the jury; and a judgment dismissing the complaint at the close of plaintiff’s ease will be reversed and a new trial granted.</p>

Appeal by defendant from a judgment of-the Municipal Court of the city of New York, borough of Manhattan, seventh district, in favor of plaintiff, entered after a trial by a judge without a jury,

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 plaintiffs. .

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

<p>Deeds — conveyance of leased premises — vesting of fee in trustee. Evidence — exclusion of testimony —■ Code Civ. Pro. § 829.</p> <p>Under a deed of conveyance of leased premises to the grantee in trust to sell the same for a purpose authorized by statute the fee of the property vests in the trustee, and the lessee under any lease or renewal of a lease which the grantor might make after he had executed the trust deed would take subject to be divested of his possession by a sale made by the trustee in the performance of the trust.</p> <p>Where the jury find that an undated endorsement of a renewal of defendant’s lease for a further term of five years was made after the landlord had executed the trust deed, which was promptly recorded, the petitioners to whom the premises had been subsequently conveyed were entitled to an order dispossessing defendant because of "the expiration of his term, in the absence of reversible error on the trial.</p> <p>Defendant as a witness was asked “when did you first see the endorsement of renewal upon the lease when,” the landlord, then deceased, “ was not present ” ? Held, that the exclusion of the testimony on objection that defendant was incompetent to testify under section 829 of the Code of Civil Procedure was proper.</p>

<p>Sales — warranty — action to recover purchase price of automobile truck—acceptance — Personal Property Law.</p> <p>The rule of the common law, that upon the sale of an article the implied warranty that it was reasonably fit for the purpose for which it was purchased did not survive its acceptance by the buyer, was changed by sections 82-158 of the Personal Property Law (Laws of 1911, chap. 571).</p> <p>Where, in an action to recover the purchase price of a truck delivered by plaintiff, a manufacturer of wagons and automobile trucks, to a customer of defendant on its written order which provided for the manufacture of a certain style of wagons designated in plaintiff’s catalogue, and gave particular specifications as to the lining of the body with asbestos and extra steel plates, it appears that the purpose for which the truck was to be used, to carry asphalt, was made known to plaintiff, that after being in use for some time it worked unsatisfactorily chiefly for the reason that the heat of the asphalt in some way caused the iron to warp, in consequence of which the body of the truck would not work properly and the iron channels became out of order necessitating the employment of a number of men to lower and raise the body of the truck when unloading, or to replace it after a load of asphalt had’ been dumped, and it is admitted that the truck had been used by defendant’s customer and is still being used in the regular course of business, there was an acceptance of the wagon with an implied warranty surviving that it was reasonably fit for the purpose of carrying asphalt, which was lost to the buyer by his failure to conform to the provisions of chapter 571 of the Laws of 1911, and the direction of a verdict in favor of plaintiff will not be disturbed.</p>

<p>Action for damages for the loss of personal property.</p>

<p>Demubeeb to complaint in an action by an employee to recover for personal injuries.</p>

<p>Judgment — motion for, on the pleadings — Code Civ. Pro. § 547.</p> <p>Title — action to quiet title — pleading — allegation contained in complaint as to owner in fee and in possession — judgment.</p> <p>The purpose of section 547 of the Code of Civil Procedure relating to a motion for judgment on the pleadings is to permit of a judgment disposing of the action on the same grounds and governed by the same rule as though the motion had been made at the trial.</p> <p>Where, in an action to quiet plaintiff’s, title to certain real estate as to which the complaint alleged he is now and for many years had been the owner in fee and in possession, the answer in addition to a denial of the material allegations of the complaint pleads as a separate defense facts that are neither sufficient as a defense to the whole cause of action nor to any specific part thereof, and if admitted would neither sustain a judgment in favor of defendant nor meet the requirements of a defense to the action, a motion by plaintiff for judgment on the pleadings will be denied.</p>

<p>Summary proceedings — landlord and tenant — persons holding over and continuing in possession of real property after notice to quit—■ writ of prohibition — Code Civ. Pro. § 2232(4).</p> <p>The question in summary proceedings is whether the relation of landlord and tenant exists and the question of title to property cannot arise.</p> <p>In a summary proceeding duly instituted under section 2232 (4) of the Code of Civil Procedure to dispossess relator from certain real property on the ground that he had entered into possession without the consent of petitioner who claimed to be entitled to possession of the premises under a lease from the alleged owner, no question of title to the premises is raised by an answer denying the alleged ownership and right to possession; the justice has jurisdiction and the relator’s application for a writ of prohibition to prevent the justice from proceeding with the trial will be denied.</p>

<p>Injunctions—pendente lite — motion for — taxpayer’s action under General Municipal Law, § 51, and Code Civ. Pro. § 1925 restraining officers of municipality from letting certain contracts.</p> <p>Injunctions pendente lite which in effect determine a litigation, and give the same relief sought to be obtained by the judgment, should be granted with great caution and only where necessity requires.</p> <p>Where in a taxpayer’s action, brought under section 51 of the General Municipal Law and section 1925 of the Code of Civil Procedure, to restrain the officers of a municipality from letting certain contracts or incurring indebtedness in connection with a municipal water plant, the principal contention of the complaint is that defendants, as members of the hoard of water commissioners, and other public officers of the city, have been making contracts for extension of mains, etc., at a time when there were no funds lawfully obtainable for those purposes, and the affidavits in support of an injunction pendente lite seem to support such contention, while those submitted on behalf of defendants are from sources clearly in a much better position to know the facts than plaintiff’s affiants and are equally clear that funds were and are available for the said purpose, and there is no suggestion that defendants are not personally responsible nor that there is any reason to suppose funds improperly paid out cannot be recovered from the contractors, the motion for the injunction will be denied.</p>

<p>Action to set aside a deed.</p>

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

<p>Auctioneers — acting only as agents — action to recover amount paid to auctioneer — verdict.</p> <p>Where in the advertisement of sale of certain lots of land, and at the sale, the name of the owner of the land was disclosed, and a purchaser of one of the lots knew that the auctioneer was acting only as the agent of the owner to whom soon after the sale the auctioneer turned over the amount received from said purchaser who, nearly six years later, upon allegations that at the time fixed for the closing of the sale the owner of the land was unable to deliver a good title, brought an action against the auctioneer to recover the amount so paid to him, the direction of a verdict in defendant’s favor is proper.</p>

<p>Corporations — voluntary dissolution proceedings under General Corporation Law, §§ 241, 257 — action against domestic surety company upon its bond given under act of Congress of February 24, 1905, for faithful performance of contract — abatement and revivor — receivers.</p> <p>Upon the appointment of a permanent receiver in voluntary dissolution proceedings under the General Corporation Law, the court by virtue of sections 241 and 257 of said statute, made applicable by section 291 thereof, has implied power to authorize or direct its receiver to appear in litigation pending in this or another state against the corporation.</p> <p>A cause of action against a domestic surety company upon its bond given under the act of Congress of February 24, 1905 (chap. 778), for the faitful performance of a contract and the payment of all subcontractors and materialmen survives the dissolution of the corporation; but where the granting of a final order of dissolution and the appointment of a permanent receiver is opposed by a corporation which though not a party to the bond has intervened in two suits thereon brought under said act of Congress in a federal court in another state, and has brought a similar suit itself, and the only claim or cause ■ of action it has against the surety company which can be enforced is under said statute, and the effect of granting the order asked for will be to end all remedy under said act of Congress and abate the actions which could not be revived against the receiver even with the consent of this court, there being no federal statute permitting revivor against the receiver of a dissolved corporation, the application for the dissolution of the surety company will be denied unless the stockholders furnish a bond to pay any judgment that- may be recovered by the corporation opposing the dissolution under a subcontract with the principal contractor.</p>

<p>Tenement House Act, § 153(1, 2) —violation of — proof of conviction of tenants under Penal Law, § 1146 —habeas corpus.</p> <p>Constitutional Law — Tenement House Act — Laws of 1913, chap. 598, unconstitutional.</p> <p>Where relator was charged with a violation of subdivisions 1 and 2 of section 153 of the Tenement House Act as the owner of a tenement house in which prostitution was committed, but the' record fails to disclose that he was either the owner or agent of the premises complained of, and the magistrate after taldng proof that there had been several convictions of the tenants under section 1146 of the Penal Law within six months held the relator for trial, he will be released from custody on habeas corpus.</p> <p>Chapter 598 of the Laws of 1913, amending section 153 of chapter 99 of the Laws of 1909, entitled “An act in relation to tenement' houses, constituting chapter 61 of the consolidated laws,” is unconstitutional.</p>

<p>Application for the appointment of commissioners of appraisal.</p>

<p>Action to recover' a sum of money paid on account of a conditional sale of pool tables.</p>

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

<p>Mandamus — alternative writ of — dismissal of writ for want of proof.</p> <p>Highways — Highway Law, § 234 — filing of certificate by town superintendent of highways declaring a portion of highway abandoned — petition to compel annulment of said certificate.</p> <p>Where a town superintendent of highways, acting under the authority of section 234 of the Highway Law, makes and files a certificate declaring a portion of a highway qualifiedly abandoned, the presumption is that it sufficiently appeared to him that the highway had not been traveled along the greater part thereof as stated in his certificate, and that he had jurisdiction to act.</p> <p>On the trial of an alternative writ of mandamus granted on a petition to compel the annulment of said certificate, the burden is on relator to establish the allegations of the petition, and where neither he nor defendant, who filed a return, offers any evidence, the writ will be dismissed for want of proof.</p>

<p>Bastardy — who may institute or prosecute proceedings — jurisdiction — Code of Criminal Procedure, § 840.</p> <p>Constitutional law — bastardy proceedings, where relator was arrested on warrant issued by city judge — jurisdiction — writ of prohibition.</p> <p>Section 840 of the Code of Criminal Procedure, which provides that in a bastardy proceeding the overseer of the poor “ Must apply to a justice of the peace or police justice in the county to inquire into the facts of the ease,” is not repugnant to a provision of a city charter that the city judge “ shall have the same jurisdiction and authority as the justice of the peace in bastardy proceedings under the law of this state, but shall not be required to associate with himself another magistrate.”</p> <p>Both the said section of the Code of Criminal Procedure and the provision of the city charter must be read together, and, though said section went into effect after the adoption of the city charter, it does not either expressly or by implication repeal it.</p> <p>Where relator was arrested on a warrant issued by the city judge in a bastardy proceeding and entered a plea of not guilty, and at his request the matter was adjourned, the city judge not having associated himself with another magistrate in the proceeding, relator was not entitled to a writ of prohibition to restrain the city judge from proceeding as under the charter he had jurisdiction, the provisions of said charter not being unconstitutional.</p>

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

Action for specific performance of contract of purchase and sale.

<p>Action for conversion.</p>

<p>Costs — in proceedings for sale of infants’ real estate — costs including disbursements governed by rule 58 of General Rules of Practice — Code Civ. Pro. § 3320.</p> <p>Where, by the report of the special guardian in proceedings for the sale of the undivided interest of seven infants in certain real estate, it appears that the net value of the interest of each infant is less than one thousand dollars, the whole costs including disbursements, under rule 58 of the General Rules of Practice which governs, cannot exceed twenty-five dollars, and referee’s fees not exceeding ten dollars.</p> <p>Under section 3320 of the Code of Civil Procedure, which if in conflict with said rule must be held paramount, the special guardian is entitled to deduct and retain the sum paid by him as a premium on his surety company bond.</p>

<p>Marriage — mandamus to compel the issuance of a marriage license — election of wife as to dissolution of marital relation — criminal law.</p> <p>Where the maximum sentence imposed upon a husband convicted of murder in the second degree was for life, and the minimum twenty years, he is civilly dead, and that fact ipso facto, if his wife so elect, dissolves the marital relation, and her marriage to another during the life of the convict is neither void nor voidable and she will be granted a peremptory writ of mandamus to compel the issuance of a marriage license.</p>

<p>Penal Law, § 752(2, 4) —information charging defendant with a violation of — registration in borough of Manhattan — residence in election district.</p> <p>Where, on an information charging defendant with a violation of subdivisions 2 and 4 of section 752 of the Penal Law, it appears that defendant on October 17, 1913, on registering in the eighth election district in the second assembly district, borough of Manhattan, stated his residence to be 103 Cherry street, and that he “ occupied ” a room on the second floor of that building; that he resided with a householder named Manning, that he resided in said election district for nine months and that when he last voted he lived at 371 Water street, and there is no proof tending to show that he ever lived at the address at which he registered, and it appears that from about April 19, 1912, he lived with his mother and his brother at 36 Morningside avenue, East, which is his permanent, fixed place of abode or home, a motion to dismiss the information will be denied.</p>

<p>Action for a divorce. The nature of the different motions made by the defendant is stated in the opinion.</p>

<p>Civil service — powers of comptroller of city of New York in reference to appointments and dismissals defined by statute — issuing certificate of reinstatement by municipal civil service commission.</p> <p>The comptroller of the city of New York is an officer having limited powers, whose authority to act in reference to appointments and removals is defined by statute, and he may not sit in review of and vacate his own order.</p> <p>The comptroller of the city of New York upon removing relator, a clerk in the finance department, on the ground of absence from duty without leave, is functus officio, and his rescission of the order of dismissal is invalid, and the action of the municipal civil service commission in issuing a certificate of reinstatement predicated on the comptroller’s rescission is also void.</p>

<p>Schools —action oí board of education of city of New York in dismissing teacher not subject to review while office of state commissioner of education remains vacant — Greater New York Charter, § 1093 — married women.</p> <p>The provision of section 1093 of the Greater New York Charter that the report of the elemental schools committee after a trial “ shall be subject to final action by the board * * * except as to matters in relation to which ” an appeal may be taken to the commissioner of education, and the language of section 880 of the Education Law that the decision of such commissioner “ shall be final and conclusive and not subject to review in any place or court whatever,” do not deprive a party of the right to seek redress in the courts or withhold from the tribunals of justice the right to grant relief in appropriate cases.</p> <p>While the office of state commissioner of education remains vacant, the action of the board of education of the city of New York in dismissing a teacher is not subject to review by any person or board engaged in educational work in the state.</p> <p>A married woman, who is a teacher in the public schools of the city of New York, may not lawfully be dismissed for “ neglect of duty ” on account of absence caused by her bearing a child.</p>