Volume 84 — New York Miscellaneous Reports

<p>Proceedings upon the probate of a holographic will.</p>

<p>Executors and administrators — testator seized or possessed of separate properties in different countries may make separate wills.</p> <p>Wills — foreign — probate — jurisdiction.</p> <p>In a contested probate proceeding an application for letters testamentary is an independent proceeding and follows the decree for probate.</p> <p>A testator seized or possessed of separate properties in different countries may make separate wills each having reference to the property in one country only, and he may appoint separate sets of executors whose office will be confined to the property and country named in the several wills.</p> <p>The wills of a Frenchman domiciled in France, but probated in this state, construed by the surrogate upon an application for letters testamentary, and held, that the nomination of a French executor in a later French will did not revoke the nomination of separate executors named in the earlier or so-called “ American ” will which disposed of the great bulk of testator’s property.</p> <p>The surrogate in the grant to him of a general jurisdiction to issue letters testamentary had inherent power to look into both wills and determine who had the better title to letters testamentary.</p>

<p>Conversion — sale of corporate stock by one tenant in common will not constitute conversion — when no accounting necessary.</p> <p>A sale of corporate stock by one tenant in common will not constitute a conversion thereof unless it ignores and disclaims the rights of the co-tenant.</p> <p>A sale by defendant, the owner of certain corporate stock, after he had assigned an interest therein to plaintiff for a valuable consideration, is not inconsistent with his rights and does not necessarily amount to a conversion, as after the sale plaintiff became at once the owner of that portion of the purchase money representing his interest and was entitled to the same on demand, and such demand and refusal constitute a conversion. No accounting was necessary to determine the exact amount of plaintiff's share as it war- liquidated by the prior agreement, and it was error to dismiss the complaint in conversion on the ground that the court had no jurisdiction of the subject matter of the action.</p>

Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, in an action in replevin on the ground that the court in awarding judgment in his favor failed to award possession of the property to the defendant.

Appeal by the defendant from an order of the Municipal Court of the city of New York, borough of Manhattan, seventh district, vacating a judgment upon terms, and also from a subsequent order denying the motion to vacate the judgment for failure to comply with such terms.

Appeal, from an order of the City Court of the city of New York, made in proceedings supplementary to execution, fining’ the judgment debtor in the sum of $260.12 for contempt of court in having violated an injunction contained in an order for his examination.

Appeal by defendant from a judgment of the City Court of the city of New York, rendered in favor of plaintiff after a trial before the court without a jury; also from an order staying all proceeding’s on the part of the defendant relative to counterclaim of the defendant until certain costs awarded to plaintiff were paid.

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

<p>Appeal by the plaintiff from a judgment of the City Court of the city of New York overruling a demurrer to a separate defense.</p>

<p>Depositions — provisions of Code Civ. Pro. requiring issuance of commission when mandatory — contents of order directing commission — compliance with statute.</p> <p>In the absence o£ bad faith, the provision of the Code of Civil Procedure requiring the issuance of a commission upon interrogatories is mandatory.</p> <p>Where the affidavit upon which an order directing a commission to examine foreign witnesses sets forth the contract sued on, that at the time of making it with certain persons in Roumania said witnesses “ resided and still reside at Husi, Roumania,” and “ since deponent cannot procure the attendance of these witnesses upon the trial it is necessary that their testimony be taken by commission,” etc., the statute has been fairly complied with, and the order will not be reversed because the moving papers did not specifically state that said witnesses were “mot within the state of Hew York.”</p>

<p>Motions and orders — when motion could not be granted except on a case made and settled at Special Term.</p> <p>Where an order, granted on the reargument of a motion to set aside a verdict on the judge’s minutes, on the ground of surprise and newly discovered evidence, does not specifically state the grounds on which it is granted, but the assumption is warranted that it was on the last-named ground only, said order if regarded as granted under section 999 of the Code of Civil Procedure was unauthorized as the court was without authority because the term at which the trial was had had expired, and if regarded as granted on newly discovered evidence said order was also unauthorized because the motion could not be granted except on a case made and settled at Special Term.</p>

<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>

<p>Appeal by defendant from a judgment of the City Court of the city of New York in favor of plaintiff, after a trial by a court and jury.</p>

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

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

Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, seventh district, rendered in favor of the plaintiff after an inquest and also from an order denying the motion of the defendant to open its default.

<p>Landlord and tenant — lease—action to recover rent under written lease—eviction — abatement of acts constituting constructive eviction — appeal.</p> <p>Though a tenant must act promptly upon discovery of conditions which he claims constitute a constructive eviction, yet he has a reasonable time in which to move out, and what constitutes a reasonable time is a question of fact.</p> <p>In an action to recover the July rent of an apartment under a written lease the defense was a constructive eviction. It appeared that plaintiff about March first erected an electric light in a court-yard outside of the, window of defendant’s bedroom. The light was turned on every night at about ten p. m. when the lights of the halls of the apartment house were turned off. During March and April defendant slept with the shade of his bedroom window drawn down. When the weather became warm, about May first, defendant kept the shade up in order to get more air. The light then shone directly into his room and he claimed that the light which had theretofore been an inconvenience became an intolerable nuisance preventing him from ' sleeping. He protested several times to the superintendent but was informed that the light would remain as it was. Early in June he cut down the light himself, plaintiff promptly restored it and in the latter part of said month defendant vacated the premises. Held, that whether the defendant’s continued occupancy was not in reliance on a reasonable belief that by protests or affirmative acts he could obtain an abatement of the acts constituting, "a constructive eviction and whether his moving out after his efforts were shown to be useless was not a removal within a reasonable time should have been submitted to the jury, and a judgment entered on a verdict for plaintiff by direction of the court should be reversed and a new trial ordered.</p>

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

Ah appeal from a judgment of the Municipal Court of the city of New York, borough of the Bronx, second district, in favor of the plaintiff, entered upon a trial by the court without a jury.

<p>Appeal from that part of a judgment of the Municipal Court of the city of New York, borough of Manhattan, second district, which directs that the proceeds of policy No. 4145182 of the Metropolitan Life Insurance Company upon the life of Mary Harrison, together with the mortuary bonus thereon, be paid to the plaintiff.</p>

<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 trial by the court without a jury.</p>

<p>Agency — damages — cost of defending suit — action to recover from principal.</p> <p>It is well settled that an agent is entitled to reimbursement from his principal for expenses or damages incurred by him as a necessary incident to the proper conduct of his agency, including the cost of defending an action or adjusting a claim.</p> <p>Two years after plaintiff had, in a course of dealing as defendant’s agent, turned over to him the balance of the purchase price of a chattel, the purchaser commenced an action against plaintiff to recover the amount on the ground that he had failed to deliver the chattel. Plaintiff at once sent the pleadings to defendant herein with notice to defend and on his refusal so to do plaintiff defended the action. There were three mistrials, and a judgment for the dismissal of the complaint on the 'fourth trial, on the ground that there was no agreement on the part of plaintiff herein to deliver possession of the chattel, was rr versed on appeal on the ground that an agreement to deliver possession was implied in the contract of sale and the case was sent back for a new trial, but before the completion thereof the action was discontinued, defendant herein having repaid the purchase price of the chattel..</p> <p>Held, that it appearing in the present action to recover the cost of defending the former suit that plaintiff, who was not a lawyer, had done all that reasonable care and prudence exacted of an agent in the sale of the chattel, and that he was not negligent in following the advice of defendant’s attorney, it was error to dismiss the complaint on the ground that the former suit was the result of plaintiff’s own negligence in failing to obtain possession of the chattel before selling it, and that said suit did not properly arise out of plaintiff’s agency.</p>

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

<p>Judgment — granted in City Court and transcript filed in County Court to be deemed a judgment thereof — acquiring jurisdiction by service of summons.</p> <p>Contempt — motion to punish debtor for failure of defendant to appear in supplementary proceedings — motion to dismiss proceeding.</p> <p>Where a judgment debtor whose true name was “ Maryian Korpolinski ” was named in the summons and complaint as “ Mike Korpolinski,” which he gave as his name to the judgment creditor and by which he was generally known in the community, the court acquired jurisdiction over him by the service of the summons and a judgment rendered against “ Mike Korpolinski.”</p> <p>That said judgment having been granted in the City Court o£ Niagara Falls and a transcript thereof filed and said judgment docketed in the clerk’s office - of that county was to be deemed a judgment of the County Court and was not affected or impaired on account of the mistake in the1 name of the defendant.</p> <p>Where defendant failed to appear and be examined in supplementary proceedings on an adjourned day, a motion to dsimiss the proceeding will be denied, and a motion to punish the judgment debtor as for contempt because of his failure to appear for examination will be held to give him an opportunity to explain his alleged contempt.</p>

Defendant moves to dismiss an indictment found against him by the grand jury of Oneida county in January, 1914, for the reason that a former grand jury of Oneida county, on May 16, 1913, also found an indictment against him for the same offense, and that he had.entered thereto a plea of “ not guilty.”

<p>Proceedings for seizure and forfeiture of liquors, • under section 33 of the Liquor Tax Law.</p>

<p>Appeal from judgment of the City Court of Buffalo, dismissing the plaintiff’s complaint, on motion for a nonsuit.</p>

<p>Process — defendant not served—plaintiff cannot be compelled to litigate questions when he determines not to proceed further in action.</p> <p>Wills—probate of — action to set aside probate — Code Civ. Pro., § 2653a.</p> <p>A party named in an action as a defendant and not served with process and against whom no personal demand is made cannot compel the plaintiff to proceed and litigate questions where he determines not to proceed further in the action.</p> <p>Where a will was admitted to probate in 1901, and in an action, under section 2653a of the Code of Civil Procedure to set aside the probate, brought in 1912 within two years after plaintiff, a child of testator, had reached his majority, his sister, a nonresident of the state, who was cited on the probate proceeding and for whom a special guardian was appointed was made a party defendant, but no effort was made to obtain jurisdiction over her by the service of process and no personal judgment was asked against her, she has no right to insist that the action proceed; and her motion for an order vacating an order discontinuing the action, duly made and entered, will be denied.</p>

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

<p>Contracts — terms of —■ breach of — counterclaim — motion for new trial after verdict in favor of defendant.</p> <p>A contract by which defendant, which had the exclusive sale and output of the Reo Manufacturing Company, in consideration of an order of 420 Reo motor ears, 85 of which were to be of a particular model, gave plaintiff the exclusive right to sell all styles of Reo motor cars within a certain territory, provided that plaintiff should take certain cars in each of the months of August to July, both inclusive, type and style of cars being specified, and the contract was so drawn as to give defendant opportunity to meet the requirements of plaintiff by, in turn, placing the orders received from him with the manufacturer, and defendant could make no shipment or draw any draft for a shipment until it had received from plaintiff the shipping, specifications or directions and instructions contemplated by the contract. Sometime after the making of the contract defendant notified plaintiff that it would not be able to furnish any of the 85 automobiles and proposed to substitute therefor cars of another model, but plaintiff insisted on the right to continue to act as the representative of defendant under the contract and it was continued in force and acted upon by the parties during the term of its life. In an action in which the main controversy was the right of plaintiff to a reduction on the list price of certain automobiles made in the last month of the contract, it was conceded that plaintiff who had agreed to push the sale of the Reo cars only, except upon the written consent of defendant, did not take or pay for all the cars agreed to be purchased, nor did he handle exclusively the cars sold by defendant but sold a large number of cars manufactured by other concerns. Defendant counterclaimed for damages for plaintiff’s breach of the contract. On motion by plaintiff for a new trial after a verdict in favor of defendant, held, that, plaintiff’s failure to give directions and instructions for shipment to defendant who was constantly demanding them of plaintiff and actually did fill all orders sent constituted a breach of the contract on plaintiff’s part and it was not necessary for defendant to make physical tender of the ears, and the plaintiff’s exceptions to the ruling of the court on the point were not well taken.</p> <p>According to the terms of the contract plaintiff was required to deposit with defendant $1,500 for each of the 420 ears ordered and agreed to be purchased, “ at the signing of the contract.” But one deposit of $1,500 was made and that had been reduced at the time of the suit to $986.92 by charging against it extras furnished plaintiff. Held, that plaintiff by taking the position at the time of the trial that defendant, if entitled to recover at all, was entitled to recover substantial damages uncontrolled and restricted by the clause of the contract relating to liquidated damages, could not raise the point for the first time on the present motion.</p> <p>A charge to the jury that defendant upon its counterclaim was entitled to recover as damages the profits lost by reason of plaintiff’s breach of the contract, i. e., the- difference between the price agreed to be paid for the ears not taken and the cost to defendant of furnishing them, correctly laid down the rule of damages applicable.</p>

<p>Judgment — by default — accrual of action — sales — pleading.</p> <p>Where, after a judgment by default had been taken against defendant in an action for goods sold and delivered commenced in the City Court of Buffalo, a transcript of said judgment was duly filed in the county clerk’s office and an execution thereon issued to the sheriff, the default was opened and answer filed and plaintiff filed an amended complaint containing two counts, first, for goods sold and delivered, as in the original complaint, and, second, a new promise to pay the judgment recovered by default in consideration of an extension of time, a judgment nonsuiting plaintiff must be reversed, as, although plaintiff on defendant’s admission of liability was entitled to judgment on the count for goods sold and delivered, the cause of action alleged in the second count constituted an independent cause of action arising after the original action commenced and was enforeible in the pending suit.</p>

<p>Corporations — forfeiture of special franchise to gas company — General Corporation Law, § ioi — dissolution — Public Service Commissions Law, § 68.</p> <p>A franchise to lay and maintain gas, pipes and other machinery underground along or across any or all of the streets of a village, and which imposes no obligation on the company to furnish gas to any one, is not forfeited by a failure for three years to so .use the streets.</p> <p>That the gas company had suspended its ordinary and lawful business for more than one year and was liable to a judgment of dissolution and the forfeiture of its corporate rights and privileges, under section 101 of the General Corporation Law, did not affect its special franchise to maintain a piping system in the village streets, that being a property right which survives the dissolution of the corporation and belongs to its creditors and stockholders upon a distribution of its assets.</p> <p>A party other than the state may not in a collateral proceeding contend that a corporation has by a failure to exercise its corporate powers forfeited its existence; that can only be accomplished by the judgment of a court of competent jurisdiction in an action brought for that purpose by the attorney-general, in the name of the state, under said section 101 of the General Corporation Law.</p> <p>Where, after the gas company had for three years ceased to use its pipes to furnish gas, it had paid the tax imposed upon its special franchise in the streets, the village was estopped from asserting that the company had forfeited its franchise for nonuser.</p> <p>The provision of section 68 of the Public Service Commissions Law held not to apply to the company’s special franchise.</p>

<p>Taxpayer’s action — statute designed to give taxpayers full benefit of competitive bidding for public work — plans and specifications not complying with rule of public policy illegal — contract for installing system of mechanical refrigeration at public market in city of Buffalo.</p> <p>Where a statute is designed to give taxpayers the full benefit of competitive bidding for public work, public policy requires that the plans and specifications be plain and definite and with-' out alternative provisions reserving to the representative of the municipality discretion as to what may be required to the end that, unless a patent article be involved, all bidders shall be afforded an equal opportunity to compete on the same basis and that there may be no fraud or collusion in awarding the contract.</p> <p>Plans and specifications which do not comply with this rule of public policy are illegal, and a taxpayer may attack a contract based thereon even in the absence'of fraud, collusion or favoritism.</p> <p>A contract for furnishing and installing a system of mechanical refrigeration at one of the public markets in the city of Buffalo at a cost in excess of $500, considered in a taxpayer’s action to enjoin the awarding of the contract, and held, that, as the plans and specifications are so ambiguous and indefinite as to be confusing to bidders who could not know unless by special inquiry whether a vertical or horizontal pump was required, the contract should be canceled, leaving the city at liberty to revise the specifications and readvertise for proposals.</p>

<p>Easements—■ reservation should he stated in deed — agreement between adjoining landowners as to use of spring — injunctions — riparian owners — claim of right adverse to owner.</p> <p>While a vendor will not be allowed to derogate from Ms grant, all those visible easements which are necessary to the enjoyment of the property will be deemed to pass by implication, but a different rule is applicable against the vendee where the servient portion has been conveyed.</p> <p>A reservation should be expressly stated in a deed of conveyance and will be implied only on strict necessity.</p> <p>By an indefinite agreement between B and L, adjoining land owners, the latter cleaned out and walled up a spring which though situated on B’s farm flowed by a natural channel across L’s land, and laid a pipe conducting the water to his own barn. Thereafter B conveyed his farm to L who continued in possession of both farms for sixteen years when he conveyed the B farm to his daughter by a deed which contained no express reservation of any right in the spring and about a year after L conveyed his farm to plaintiff. The executors of the said daughter, several years later, conveyed the B farm to defendant. In an action to restrain defendant from interfering with plaintiff’s alleged right to take water from said spring, held:</p> <p>That the agreement between B and L with regard to the spring did not prove that plaintiff’s grantors acquired any easement therein, but on the contrary indicated that whatever his rights they rested on license.</p> <p>That if an easement had been proved the purchase of the B farm by L would have extinguished any such right by merger of the titles.</p> <p>That while it would be a great convenience for plaintiff to continue the use of the spring, yet in view of the facts shown the easement though apparent and continuous was not strictly necessary to the enjoyment of plaintiff’s property.</p> <p>That plaintiff as a lower riparian proprietor, not as the owner of an easement to take water from defendant’s spring, had a right to have it cross the division line of the farms at the same point that it had crossed it since the agreement between B and L, but not to go on defendant’s land to repair or for any purpose.</p> <p>Where not only the precise terms of a stipulation are unknown but its existence has not been established, it will be disregarded when first called to the attention of the court in the brief of counsel.</p> <p>While twenty years’ unexplained use of an easement will be presumed to be under claim of right adverse to the owner, and so create an easement by prescription, the burden is on the owner of the servient estate to show that it was not adverse where such user has been established.</p>

<p>City of Buffalo —■ power of grade crossing commission to employ engineers, etc.— Laws of ign, chap. 358, § 3.</p> <p>Under section 3 of chapter 358 of the Laws of 1911, which provides that the grade crossing commission of the city of Buffalo “ shall have power to employ engineers, an attorney and stenographer and to fix their compensation,” said commission may employ an engineer in addition to its regular staff.</p>

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

<p>Chattel mortgages — abandonment of chattels by absconding mortgagor —■ action against sheriff to recover chattels — refiling at end of year.</p> <p>Where a mortgagor of chattels absconds, and they are seized on an attachment against them, the mortgagee acting in good faith is justified in taking possession of the property under the insecurity clause of his mortgage which was not due; and he is entitled to replevin the property from the sheriff if at the commencement of the action he has the right to reduce the chattels to his possession.</p> <p>Where the absconding mortgagor abandoned the chattels on the farm of which he was the tenant, the mortgagee was justified in taking possession of the property under the insecurity clause of his mortgage, and having taken such possession the chattels were not subject to seizure under an attachment against the mortgagor.</p> <p>A complaint in the action against the sheriff to recover the chattels, which alleges plaintiff’s title and that defendant wrongfully took them, is sufficient under section 1721 of the Code of Civil Procedure, though there was no allegation that plaintiff, whose mortgage was not yet due, “ deemed himself unsafe ” and so entitled to possession under the insecurity clause.</p> <p>The commencement of the action as against defendant sheriff was equivalent to plaintiff taking possession, and the fact that he did not thereafter and at the end of the year refile his mortgage did not preclude a recovery.</p>

<p>Motion to modify order for examination of plaintiff before trial.</p>

<p>Highways—1 action by town officers to close — Highway Law, § 191—■ order closing highway not recorded is not final — certiorari — Code Civ. Pro., § 2125.</p> <p>All the papers in a proceeding taken by town officers to close highways, consisting of the application and consent of the town board, a release from all damages from the owners of lands taken or affected thereby and the ’order of the town superintendent closing the highway must, under section 191 of the Highway Law, be filed and recorded in the town clerk’s office; recording the release and merely filing the other papers are not a compliance with the statute.</p> <p>A record of an instrument in writing, the object of which is not only perpetuity but publicity, implies an actual transcription by the proper official, and simply leaving the paper with him for record is not a compliance with the statute which requires both filing and recording.</p> <p>An order closing a town highway not recorded as required by section 191 of the Highway Law is not final and though made and. filed in November, 1912, constitutes no ground for quashing a writ of certiorari served in October, 1913, to review the determination made in a proceeding to. close the highway, as section 2125 of the Code of Civil Procedure provides that said writ must be served within four calendar months “ after the determination to be reviewed becomes final and binding,” etc., nor should the writ be quashed en the ground of relator’s laches because at the time of the filing of the order sought to be reviewed he knew of the action which had been taken.</p>

<p>Wills — terms of — direction contained in will to trustee to distribute or pay over in future — words importing gift — direction to testamentary trustees — when beneficiaries entitled to equitable division and distribution.</p> <p>The rule that, where in a will there is a direction to trustees to distribute or pay over in the future, futurity is annexed to the gift, the remainders are contingent not vested, and survivor-ship at the time of distribution is an essential condition to the acquisition of an interest in the subject of the gift, is limited to cases in which the only words of gift are to be found in the direction to distribute.</p> <p>Where, however, there are words importing a gift in addition to the direction to pay over, divide or distribute, said rule does not govern because the situation is precisely as if the will contained words of gift.</p> <p>Where testamentary trustees were directed to hold the residuary estate in trust to pay the income, rents and profits therefrom to testator’s aunt A during her life and the will provides that on her death “I direct a distribution of my residuary estate, and give, devise and bequeath the same to the following named persons in equal shares as follows,” etc., these words not only import but actually express a gift of the corpus of the estate, the time of taking possession and enjoyment being postponed.</p> <p>By the terms of the will the share of the remaindermen, all of whom died during the life tenancy, passed to their respective descendants. One of the remaindermen left her surviving a son whose right to one-third of the residuary estate was not disputed, and another remainderman left her surviving a daughter who was also a remainderman and died two years before the life tenant, unmarried and without issue but leaving a will by which she disposed of all her interest in the estate of testator herein to which she might be in any manner entitled. In an action for the construction of testator’s will, his adopted daughter alleging the intestacy of her foster father claimed two-thirds of the residuary estate. Held, that testator validly disposed of all his property; that the estates in remainder vested on his death; that on the death of two of the remaindermen their interest passed under testator’s will to their descendants, and that the death of the other remainderman without issue did not affect the vesting of her one-third interest in the estate as original remainderman nor. the one-third interest which passed to her on the death of her mother, and that the beneficiaries under the will of said remainderman are entitled to an equitable division and distribution of two-thirds of the residuary estate of testator.</p>

<p>Action for specific performance found upon a covenant in a lease.</p>

<p>Vendor and purchaser — covenant not to engage in certain business for specified time—'sale of good-will of a business — action for violation of covenant.</p> <p>The covenant of the vendor of a business not to engage therein for a specified time is distinct from the sale of the goodwill, and in the absence of such a covenant he may freely compete with his vendee subject only to a possible obligation not to actively entice away custom which the vendee may reasonably expect to enjoy.</p> <p>Such a restrictive covenant becomes the measure of the vendor’s duty and of the vendee’s right and is to be strictly rather than liberally construed.</p> <p>Where, in consideration of the sale of his retail jewelry business to plaintiff’s assignor, defendant covenanted not to engage directly or indirectly in such business in any form in the city of New York for five years after he had finally left the employment of the vendee, and on the trial of an action for the violation of said covenant on a claim that defendant had continued to conduct such a business during the forbidden period in the name or through the instrumentality of B who occupied office space in the place of business maintained by defendant for his dealings in the wholesale jewelry trade, his ostensible occupation, it was established merely that defendant did make two isolated sales to retail customers not, however, in the course of any actual retail business conducted by him nor with any solicitation of business on his part, no violation of the covenant in suit was shown.</p> <p>The sale of defendant’s business with the negative covenant did not operate to forbid him from giving the favor of his countenance to the business of any other retail dealer in recommending the unsolicited trade of customers for the latter’s benefit under penalty of an injunction and damages, and defendant was entitled to a judgment for a dismissal of the complaint.</p>

<p>Election — defense of action for breach of contract precludes suit for reformation.</p> <p>Laches — dismissal . of complaint for — discovery of mistake in contract.</p> <p>One who elects to defend an action for damages for breach of contract cannot maintain an action for the reformation of the contract.</p> <p>Where plaintiff on the discovery of a mistake in a contract consulted counsel, negotiated with defendant for a settlement and for two years litigated an action brought by him for breach of the contract, the complaint in an action subsequently brought for a reformation of the contract will be dismissed for laches.</p>

<p>Demurrer to complaint.</p>

<p>Appeal — from a judgment — attorney employed to prosecute may serve notice of appeal.</p> <p>An attorney employed to prosecute an appeal from a judgment may serve the notice of appeal.</p>

<p>Damages — assessment of — in action for personal injuries — writ of inquiry may be executed before a judge where some difficult point of law is likely to arise.</p> <p>The effect of a decision by the Court of Appeals affirming an order granting a new trial and directing judgment absolute for plaintiff, in an action to recover for personal injuries, is the same as if a default had occurred, and the proceeding to assess the damages, if taken at a Trial Term, is similar to the taking o£ an ordinary inquest; but where the assessment is by a jury at a Trial Term the rules for reviewing the trial of an action do not prevail.</p> <p>A writ of inquiry for an assessment of damages in an action for personal injuries may be executed before a judge where some difficult point of law is likely to arise in the course of the inquiry, or the facts are important.</p>

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

<p>Motion to permit a discovery and inspection of certain books and documents.</p>

<p>Marriage — no formal agreement ever entered into — subsequent ceremonial marriage with another.</p> <p>Where it appears that no formal agreement to marry was ever entered into between the parties to a separation agreement who when they first met almost immediately entered into illicit relations which continued, except during such times as defendant was in state prison under sentence for crime, until plaintiff by a valid ceremonial marriage was married to another, that for about a year she sustained the double role of wife, and of mistress to defendant with whom she continued to live folien years after her husband had left her, defendant is entitled to judgment dismissing the complaint.</p>

<p>Action by Paul Oehler against Hamburg-Ameribauische Paeketfahrt Aetien Glesellsehaft (Hamburg-American Line). On trial, both parties waived a jury, defendant admitted the facts alleged in the complaint, plaintiff admitted the facts alleged in the separate defense in defendant’s answer, and both parties moved for judgment.</p>

<p>Corportions — stockholders’ action to set aside agreement — not precluded from distributing earned profits as dividends — application of proceeds in case of sale of certain securities — pleading.</p> <p>Negotiable instruments — note empowering holder or his trustee to confess judgment in default of payment not invalid because maker is a corporation — equity — judgments.</p> <p>A contract made by a corporation within the scope of its chartered powers may not be set aside merely because some stockholders believe it to be unwise; there must be fraud or conduct so manifestly oppressive as to be equivalent thereto.</p> <p>A contract between a corporation and certain bankers to buy $2,500,000 of its six per cent gold notes at ninety per cent of the face value plus accrued interest, with an option to buy an additional $1,500,000 at the same price, provided that while any of the notes were outstanding the corporation should neither mortgage nor pledge its property nor suffer any lien thereon which should have priority over said notes, and, in particular, that the corporation should neither mortgage nor pledge the stock of two other corporations held by it in large amounts, which stock it was not to sell without the consent of the note holders’ committee and the proceeds of any .proper sale were to be paid to a trustee named to be applied to the redemption of said notes. A sinking fund was also created by which said corporation was to make semi-annual payments in certain amounts to the trustee, the fund to be used in the purchase and cancellation of such of the notes as were offered at not to exceed 101, if none were so offered then in the redemption at 101 of notes to be called by lot. In case of default in the payment of interest on the note, or in the making, of any sinking fund payment, or upon the violation of the company’s promise not to sell certain securities without the consent of the note holders’ committee, the trustee was authorized to confess judgment, or cause the same to be confessed, for the full amount of the gold notes then outstanding, together with interest and attorneys’ fees. On overruling a demurrer to the complaint in a stockholders’ action brought in the right of the corporation, to set aside the agreement, as not stating facts sufficient to constitute a cause' of action, held:</p> <p>That no charge of fraud being made and no claim that the price of 90 was fixed by the directors with any furtive purpose to benefit themselves, or to despoil the company, or that a better price could be obtained, the court could not revise the judgment of the directors in making the contract, and substitute its conclusion for theirs.</p> <p>That the immediate purpose of the contract being to obtain money to pay outstanding notes and to purchase securities, an allegation of the complaint that the main purpose of authorizing the agreement was to enable plaintiffs’ corporation to continue the payment of dividends at the rate of four per cent per annum was not equivalent to an allegation that the corporation intended to declare dividends illegally.</p> <p>A corporation which has earned profits is not precluded from distributing them as dividends because some of its assets are in such-form that it must borrow money for its business; and whether the corporation ought to use, for the purpose of said agreement, money alleged to be in banks to its credit and pass the payment of dividends is a question of expediency to be determined by the directors.</p> <p>The provision of the agreement that in case of a sale of certain securities the proceeds should be applied to specific debts did not constitute a mortgage or create a lien but was simply an executory agreement to give a lien in a contingency which might never arise, for not until the directors attempted to sell the securities while a note of the corporation held by one of the corporations whose stock it held in a large amount was still outstanding, with the result of anticipating its maturity, would the question arise as to how far such a sale would be consistent with the welfare of the plaintiffs’ corporation.</p> <p>A note empowering the holder or his trustee to confess judgment in default of payment is not made invalid by the fact that the maker of the note is a corporation; if the note is ineffective under the statutes of this state governing confessions of judgment the only consequence is to nullify the authority' given to the trustee and to render it impossible for any judgment to be entered by virtue of it, and a court of equity will not declare that consequence in advance.</p> <p>The amended complaint considered, and a motion for judgment dismissing the complaint as against defendant bankers with whom the agreement sought to be set aside was made, granted, with costs.</p>

<p>Corporation — officer of, not to be permitted to put its property up for sale in order to exclude minority stockholder—1 general assignment for benefit of creditors — accounting — bankruptcy — action by stockholder to impress a trust upon property.</p> <p>An officer of a corporation, who is also the majority stockholder, will not be permitted to put its property up for sale in order to exclude a minority stockholder and buy it in for himself, but equity will charge the property in his hands with a constructive trust.</p> <p>Where the day after a corporation, not shown to be insolvent in the sense of being unable to pay its debts as they mature, had made a general assignment for the benefit of creditors, it filed a petition in bankruptcy and the defendant, its president and chief stockholder, bought in his own right all its property from the receiver in bankruptcy in consideration of the payment of the corporation’s debts, twenty per cent in cash, and eighty per cent in notes covering a period of sixteen months and also in consideration of the payment of the expenses of the bankruptcy proceeding, and, in an action by a stockholder to impress a trust upon the property, the court is satisfied that defendant’s purchase was the fulfilment of a plan to oust plaintiff from the corporation and to destroy the value of his stock therein, and it appears that since the commencement of the action defendant by a transfer of said property to other corporations not before the court has frustrated an effective decree declaring and impressing, a trust, plaintiff is entitled to a judgment that defendant account to the corporation for the loss suffered by it through the waste of its property.</p>

<p>Trust —r secret — action to have declared — devise to sons for benefit of other children — devisees adjudicated bankrupts — action to have trust declared — standing of trustee in bankruptcy — witness—■ competency under Code Civ. Pro., § 829.</p> <p>Where a devise is induced by the promise express or implied of the devisee to devote the gift to a lawful purpose, a secret trust is created, and equity will compel him to apply the property in accordance with the promise on the strength of which he procured it.</p> <p>A court of equity in such case exerts its power not merely because there has been a breach of contract but because the promise has been used as an instrument to induce the promisee to part with his property so that the retention of it by the promisor in violation of his promise would result in an unjust enrichment and constitute a fraud; it is not the promise only, nor the breach only, but the combination of both with the extortion of the property from the owner upon the faith of the agreement, which puts the court in motion.</p> <p>Testatrix appointed her sons Jacob and Morris executors and trustees under her will and directed them to pay the income of the real estate to her husband for life and on his death she gave the real estate to said sons, and if either of them was then dead one-half of the real estate was given to the survivor, the other half to go to testatrix’s daughter and another son in equal shares. The will then declared:</p> <p>“I have made this disposition of my property to my sons Jacob and Morris in the event that they survive my husband * * * because I have entire confidence in them, and I feel that they will he eminently just and fair in their treatment of my remaining children.”</p> <p>Two of the children of testatrix, who had been deaf and dumb from their birth and judicially declared insane, were inmates of asylums. About a year after the mother’s death misfortune overtook Jacob and Morris, who prior thereto had been successful business men, and soon thereafter they were adjudged bankrupts and their trustee in bankruptcy demanded that they execute a conveyance of their interest in the real estate subject to the trust for their father, but they refused so to do on the ground that they had no beneficial interest and held the remainder upon a passive trust for the benefit of their brothers and sisters. In an action by a third son of testatrix to have the trust judicially declared, the testimony made it clear that testatrix was induced to execute her will by the assurance of Morris that the property would be held for the use of her other children. Held, that the trust was enforceable; that the fact that it was passive did not render the devise illegal, the only consequence being that upon the disclosure of the trust the statute executes it and merges the legal and beneficial interest.</p> <p>That an objection that the promise which induced the gift was made by Morris only, and that, therefore, Jacob's interest was not subject to a trust, was untenable, as testatrix had a right to believe that Morris spoke with authority for his brother Jacob and that one as much as the other would not betray her trust.</p> <p>That the trustee in bankruptcy was not a purchaser for value and took the bankrupt’s estate subject to all equities that attached to it in the bankrupt’s hands and that the court would not sanction a fraud by permitting, the repudiation of the trust by the trustee in bankruptcy.</p> <p>That the son Morris was not incompetent under section 829 of the Code of Civil Procedure to testify for plaintiff as to a personal transaction with his mother.</p>

<p>Proceeding upon the judicial settlement of the account of an executor.</p>

<p>Wills — distinction between income and annuity — bequest of life use or income of certain sum — when gift vests immediately upon death of testatrix.</p> <p>The distinction between income and an annuity is that while the former embraces only net profits after deducting all necessary expenses and charges, the latter is a fixed amount directed to be paid absolutely and without contingency.</p> <p>Where it clearly appears from the will of a testatrix that she knew the distinction between the life use of income and an annuity, a bequest to her sister of the life use or income of a certain sum, to be paid to her annually for and during her lifetime, does not create an annuity.</p> <p>Where immediately following said bequest it was provided that after the decease of said sister one-half of the principal sum was to be paid to her daughter and the balance to testatrix’s children in equal shares, the gift to the niece vests immediately upon the death of testatrix, the enjoyment of which was postponed until the death of the life tenant.</p> <p>Where a remainder is created by words of present gift and the only contingency is a death certain to occur and the remaindermen are known and fixed, the postponing clause is to be regarded as relating only to the period of actual enjoyment and not to the period of the vesting of the interest.</p>

<p>Appeal by the comptroller of the state of New York from an order fixing and assessing the transfer tax.</p>

<p>Wills — subscribing witnesses thereto — presumption of competency—. comparison of bandwriting of documents extraneous to cause allowable by testamentary common law — probate.</p> <p>The subscribing witnesses to a last will are presumed to he competent in the absence of proof to the contrary, and the failure to cross-examine them admits their credibility.</p> <p>Unless the testimony of the subscribing witnesses that they saw the testator subscribe bis last will is contradicted by weightier evidence, due execution of the instrument is established and it is entitled to be probated.</p> <p>The comparison of handwriting by documents extraneous to the cause was always allowable by the testamentary common law which was adopted and continued in force by the first Constitution of this state.</p> <p>While a witness to handwriting may give bis opinion under oath he cannot be compelled to do so where he states that he has no opinion; nor can he give his opinion that a disputed signature was unlike the handwriting of testator, but he must be confined in his opinion as to whether the signature was or was not that of testator.</p> <p>A will may be admitted to probate upon the uncontradicted evidence of the subscribing witnesses.</p>

<p>Appeal from an order assessing a tax upon the estate of decedent.</p>

<p>Motion to dismiss indictment for criminally receiving stolen goods for insufficiency of evidence before the grand jury.</p>

<p>Statute — re-enactment — effect — Laws of i8g6, ch. go8, §§ 132, 140, 157 re-enacted in igog — effect of repeal of act of i8g6.</p> <p>Tax Law—cancellation of sales — construction of provisions, of statute relating thereto — jurisdiction of county treasurer.</p> <p>Under section 95 of the General Construction Law, sections 132, 140 and 157 of the Tax Law of 1896, substantially reenacted in the Tax Law of 1909 (Laws of 1909, chapter 62, sections 132, 140, 158), have been continuously in force since the Tax Law of 1896 took effect notwithstanding the express repeal thereof by the later Tax Law.</p> <p>Section 140 of the Tax Law of 1896, as re-enacted in the Tax Law of 1909," authorizing the cancellation of tax sales where the same are invalid or ineffectual to pass title, and the refund of the purchase price, is prospective in its language and does not require a retrospective construction.</p> <p>Section 132 of the Tax Law of 1896, as re-enacted in the Tax Law of 1909, declaring the effect to be given tax deeds,' certificates, etc., theretofore executed, is essentially retrospective, but the provision as to the cancellation of tax sales is prospective as well as retrospective.</p> <p>Under section 140 of the Tax Law of 1896, authorizing the cancellation of tax sales on certain grounds upon application by the owner, or any person in interest at the time of the tax sale, neither the successor of the owner nor of the purchaser may make such application.</p> <p>Said section 140 of the Tax Law of 1896, as re-enacted in 1909, contemplates an application by an owner who has retained some interest in the property, and subsequent owners under a quitclaim deed of the property could not by joining their grantor with them in their application have a tax sale canceled under said section.</p> <p>Section 132 of the Tax Law of 1896, as re-enacted in 1909, is a statute of limitations, but the har thereof need not be alleged in order to defeat an application to the county treasurer for the cancellation of a tax sale after the time limit; the treasurer is not a court and the rule that a statute of limitations must be pleaded to defeat jurisdiction has no application.</p> <p>Where an administrative officer is invested by statute with judicial or quasi judicial powers, they can be exercised only in the manner and under the circumstances described by the statute; and any attempted exercise of such powers in some other manner or under different circumstances is a nullity.</p> <p>Where an application for the cancellation of a tax sale under section 132 of the Tax Law of 1896, as re-enacted in 1909, was filed with the county treasurer after the prescribed time limit, he is without jurisdiction to act.</p>

<p>Action for services.</p>

<p>Corporations — correct name and title of — variance in spelling — motion to vacate and set aside order appointing receiver in supplementary proceedings — judgments — amendment — of process — pleading — correction of mistake in name of party—Code Civ. Pro. § 723.</p> <p>Where a corporation, the correct name of which was the “Independent Brothers of Nieshwis,” was sued in the Municipal Court of the city of .New York as “ Independent Brothers of Nieshweiser,” and proceedings in the action were conducted in most part upon papers in which the name of the defendant was given as “ Nieshweiser,” and for five years the corporation repeatedly appeared in the action without raising the question of variance in the spelling of its name, and failed to take advantage of leave duly obtained for opening its default, a motion to vocate and set aside an order appointing ■ a receiver of its property in proceedings supplementary to execution will be denied where there is no doubt that the defendant who was served with process is the defendant against whom the cause of action was directed and the defendant against whom the judgment was in fact rendered.</p> <p>Under section 723 of the Code of Civil Procedure, which authorizes the court “ before or after judgment, in furtherance of justice, to amend any process, pleading or other proceeding * “ by correcting a mistake in the name of a party,” the court may grant an order amending and correcting the summons, judgment roll, and all subsequent proceedings in the action by correcting a mistake in the name of the defendant.</p>

Appeal by tbe plaintiffs from an order of the City Court of the city of New York setting aside the verdict of a jury rendered in favor of the plaintiffs.

Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, eighth district, dismissing the plaintiff’s complaint upon the merits.

<p>Appeal from an order of the City Court of the city of New York setting aside a verdict directed in favor of the plaintiff and from a judgment dismissing the complaint.</p>

<p>Alimony — allowance for, on wife’s action for a separation unauthorized— action to recover payments alleged to be due under separation agreement — pleading.</p> <p>An allowance for alimony in a wife’s action for a separation is unauthorized.</p> <p>That a wife, while receiving payments under a separation agreement, brings an action for a separation and is allowed alimony does not relieve defendant from liability under the agreement.</p> <p>A separation agreement pursuant to which a husband is to pay his wife a certain sum per week for her use, support and maintenance is valid.</p> <p>In an action by a wife to recover payments alleged to be due under a separation agreement, neither adultery on her part before the separation agreement wa= made, tho-mh unknown to defendant, nor her adultery thereafter, is a defence.</p> <p>An allegation of the answer that plaintiff had committed adultery before the separation agreement was signed and that such fact was unknown to defendant, is not equivalent to an allegation of fraud perpetrated either by direct representation or concealment.</p>

Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, and from an order denying a motion to open a default and vacate the judgment.

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

<p>Contracts — evidence held not to justify a finding of fraud — duress threat to obtain injunction.</p> <p>The evidence, in an action to recover for breach' of contract to pay a royalty in consideration of plaintiff’s agreement not to obtain an injunction restraining defendant from- producing a certain play, held not to sustain a finding that the contract was induced by plaintiff’s fraudulent claim that he had a copy- • right on said play.</p> <p>A mere threat to apply for an injunction is not duress, and. if plaintiff, in the belief that his exclusive property rights in certain plays were infringed by a play produced by defendants, threatened to restrain its production unless he was paid a royalty therefor, an agreement by defendants rto pay it if plaintiff would not sue is not invalid for duress, and is not affected by a statement by plaintiff to defendants calculated to convey the false impression that he had a copyright on certain plays which he claimed to own.</p>

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 the plaintiff, and from an order denying defendant’s motion for a new trial.

Appeal by the tenants from a final order in favor of the landlord in a summary proceeding entered in the Municipal Court of the city of New York, borough of Manhattan, seventh district.

<p>Appeal by the defendant from a judgment of the City Court of the city of New York, entered in favor of plaintiff for $1,070.55, and from an order denying a motion to set aside the verdict.</p>

Appeal by the 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 by the court.

Appeal by defendant from a judgment of the City Court of the city'of New York in favor of plaintiff for $2,000 damages, besides costs, entered upon a verdict for $2,650, also from an order denying defendant’s motion to vacate the judgment.

Appeal by defendant from an interlocutory judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, sustaining a demurrer to the second defense of the answer.

Appeal by the 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.

Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, seventh district, in favor of the plaintiffs for $200 damages, besides costs, entered after a trial by the court.

Appeal by the defendant from a judgment of the' Municipal Court of the city of New York, borough of Manhattan, eighth district, in favor of plaintiff for the sum of $200.

Appeal by the plaintiff from an order of the Municipal Court of the city of New York, borough of the Bronx, first district, vacating and setting aside a judgment rendered on the verdict of a jury in favor of the plaintiff.

Appeal by defendants from a judgment of the City Court of the city of New York entered upon a verdict in favor of plaintiff and from an order denying a motion to set aside the verdict and for a new trial.

<p>Action for the judicial construction of the last will and testament of Emma Bacon, deceased.</p>

<p>Aliens — declaration of one’s intention to become a citizen — petition for naturalization when denied.</p> <p>An alien can only become a citizen upon and after a strict compliance with the acts of Congress in force at the time he applies for naturalization.</p> <p>Where the declaration of. one’s intention to become a citizen made on October 11, 1906, bore on its face the following: “ Invalid for all purposes seven years after date hereof,” and his petition for naturalization filed October 10, 1913, was not accompanied by a certificate of his arrival in the United States, as required by section 4 of the Naturalization Act of June 29, 1906, the petition must be denied.</p>

<p>Injunction — to restrain use of trade-name “ Kurtzmann ” acquired under a bill of sale from an executor — laches when not a bar to relief.</p> <p>While the use of one’s own name in business cannot be absolutely enjoined, the manner of such use may be regulated by injunction.</p> <p>While every person has the right to the honest use of his own name in his own business, even though he may thereby incidentally interfere with and injure the business of another having the same name, he will not be allowed to designate an article of his own production by his own name in such a way as to cause it to be mistaken for the manufacture of goods of another, already in market, or to use his name in such a way as to lead the public to believe that his business is that of another.</p> <p>Where plaintiff succeeded, by proper and legal transfers, to all the property, assets and good-will, including the trade-name of “ Kurtzmann ” acquired from the executor of the Kurtzmann estate by a partnership upon retiring from which defendant, a son of said Kurtzmann, executed an agreement whereby he, for a valuable consideration, sold and transferred all of his interest in “the stock, property, name, accounts and all other property of said firm ” and further agreed that he would not “ hinder, molest or injure * * * in the carrying on of said business,</p> <p>or in any way interfere with them,” the plaintiff will be granted an injunction restraining defendant from offering for sale pianos bearing the name of defendant “ Chas. F. Kurtzmann,” which have been manufactured for him by others; and mere laches in the sense of delay to bring suit was not in the circumstances a defense to the suit.</p>

<p>Motioet by counsel for defendant Sartle, for an order of nonsuit, and for a dismissal of plaintiff’s complaint after verdict for plaintiff.</p>

<p>City of North Tonawanda — charter of — provisions of contract for materials or supplies — taxpayer’s action.</p> <p>The charter of the city of North Tonawanda (Laws of 1907, chap. 752, tit. 23, § 1) provides that a contract for materials or supplies, the nature of which will admit of competition, if involving an expenditure of more than $200, shall be awarded to the one whose bid “ shall be deemed by the common council or board having the matter in charge most advantageous to the city.” Held, that, where the highest bid for collecting the refuse of the city for a year was $3,500 and the lowest $2,900, the court could not, in a taxpayer’s action, restrain the board of health from awarding the contract to one whose bid was $3,360, it not appearing that the city would not get full value in service under a contract for such amount.</p>

<p>Libel — slander—'construction of letter written by married man — violation of federal statute against mailing obscene matter.</p> <p>Where a letter intended as a confidential communication, written by a married man to a woman and mailed direct to her, is fairly susceptible of no other construction than an invitation to meet for immoral and criminal purposes, it is neither a libel nor a slander.</p> <p>Where, by reason of her complaint to the postal authorities, the one to whom the letter was written caused it to be made public, the resulting injury to her reputation cannot in a legal sense be imputed to the writer of the letter.</p> <p>The fact that the writer of the letter violated a federal statute against mailing obscene matter when he sent the letter, and the institution of a prosecution for such offense, and the consequences that flowed from it, conferred no right of action on the recipient of the letter.</p>

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

<p>Highways — Highway Law, § 172—1 maintenance and repair of — when deemed to have been accepted by board of supervisors of county.</p> <p>In the fall of 1912 two state highways, and two county highways, running through six towns of Onondaga county were completed or nearly so and, as required by section 172 of the Highway Law, a statement of the number of miles of state and county highways in each town and the amount which each, respectively, was required to pay on account of maintenance for the year 1913 was transmitted to the clerk of the board of supervisors, and thereafter pursuant to section 134 of the Highway Law notice was given that the county highways would be accepted, and on January 8, 1913, they were so accepted. The general tax levy made on December 15,1912, as required by law, included no tax for maintenance and repair for the year 1913, nor has any tax for that year been included in subsequent levies. Held, that under the provisions of section 134 of the Highway Law, that “ upon the proper completion of such highway or section thereof and after filing the notice above given it shall be deemed to have been accepted by the board of supervisors of such county and thereafter it shall be maintained as provided in this chapter,” a writ of mandamus would issue to compel the board of supervisors pursuant to said section 172 to provide funds for the maintenance and repair of county highways, the duty under said section being merely ministerial.</p>

<p>Partnership — refusal by one of the partners to join in action by the firm to recover for services — agreement by both partners through their attorneys that one of them should act as liquidator for firm — fraud.</p> <p>Where one of two partners refuses to join in an action by the firm to recover for services and is made a party defendant, he cannot later, against his partner’s wishes and after the dissolution of the partnership, satisfy the judgment obtained in said action in consideration of a promise by the judgment debtor to give him its bonds to the amount of the judgment. This is especially so where it appears that said bonds are considered of little, if any, value by the other partner, that the defendant partner is insolvent, and that prior to the satisfaction of the judgment both partners had agreed through their attorneys that one of them should act as liquidator for the firm and should have entire charge of the judgment.</p> <p>The satisfaction piece is a fraud not only on the rights of the dissenting partner, but also on the rights of the attorney of record in the action who had a lien on the judgment for his agreed compensation and costs.</p> <p>On motion by the plaintiff partner and the attorney of record such satisfaction piece will be set aside to the extent of the attorney’s lien, and of the plaintiff partner’s interest in the residue, leaving the other partner to take the proposed bonds for his interest.</p>

<p>■Certiorari — who may make application for á writ of — assignment to relator by certain corporations of all their interests in any refunds and credits then and thereafter due or accrued — when application denied — Tax Law, § igg.</p> <p>■ It is a condition precedent to the making of an application for a writ of certiorari, under section 199 of the Tax Law to review a franchise tax, that the amount thereof be deposited with the state treasurer as required by section 200 of said statute.</p> <p>Upon an application by relator, a foreign railroad corporation, for revision of a franchise tax assessed against it during a period of seven years, the same was reduced in amount but the state comptroller refused to credit relator with the taxes it had paid for the same years assessed against two domestic railroad corporations, each operated by relator under a 999 years lease which contained a covenant that relator would pay all taxes assessed against the lessor companies in the stock of each of which relator owned a controlling interest. Prior to the hearing on the application for revision each of the other* corporations assigned to relator all its interest in any refunds and credits then and thereafter due or accrued arising out of the payments made by relator during the years in question upon the taxes assessed against such two other corporations based upon capital stock employed in this state. On the hearing of relator’s application for a writ of certiorari under section 199 of the Tax Law to review the taxes assessed against it and which the comptroller refused to credit relator with on the revision, it was conceded that the amount of said taxes had not been deposited with the state treasurer. Held, that the application for the writ must be denied though relator claimed that the taxes against the other two corporations were illegally assessed and paid.</p>

<p>Action upon promissory notes.</p>

<p>Motion to continue temporary injunction pendente lite.</p>

<p>Associations — voluntary — organization of — when building erected on campus of Cornell University not taxable as personal property — right to invest its endowment fund in banking, transportation and manufacturing companies—'residence for purpose of taxation.</p> <p>The voluntary association organized under the name of the " Telluride Association,” the only work of which wherever car-, ried on is the education free of cost of young men of promise capable of support as shown by actual experience, each being carefully selected by examination .and vote after his application has been on file and he has been under observation for at least one year while pursuing a course of study, and the entire income of which is devoted to the education of its students and their maintenance while being educated, except a small percentage to its endowment fund, is a charitable and educational corporation within the meaning of section 4(7) of the Tax Law, and is exempt from taxation.</p> <p>A building known as the “ Telluride House,” and its equipment, erected by said association upon the campus on Cornell University by consent of the university authorities, no part of which is leased or the source of any income, being occupied exclusively by the members, students and employees of the association and no member, officer or employee thereof and no outsider receives any pecuniary benefit except the amounts appropriated for scholarship to students and the compensation of employees for services actually rendered, is not taxable as “ personal property of the association.”</p> <p>Where the university, with knowledge that the building was erected upon land which for years has been and still is exempt from taxation under the statute, under the reasonable expectation on the part of the association that it should have a lease at a nominal rent for a reasonably long term, objected to the length of the term, both original and in renewal as asked for by the association, but at no time refused to lease for a reasonably long period at a nominal rent, equity, upon the principle that that which ought to be done is done, would prohibit the university from disappointing the reasonable expectation of the association, based on its own action, by expelling the latter from its ground and using the building for its own purposes, and since the tenure or occupancy of the association is that of a tenant at a nominal rent there was no “leasehold interest” in the land subject, to taxation.</p> <p>The association depending on the income of its endowment fund to carry on its work had the right to invest the same in the stock of banking, transportation and manufacturing companies, and while such investment is to a certain extent conducting the business of a corporation through the right of stockholders to vote for directors, clearly in this sense the power to conduct commercial enterprises does not deprive the said association of its right to exemption so far as the “ Telluride House” and its contents are concerned.</p> <p>The association having no headquarters, principal place of business or office, its principal business being transacted at each annual convention which fixes the place of meeting for the next, and the conventions being held in different states, the association has a residence for the purpose of taxation and exemption in every state where it carries on its charitable and educational work.</p>

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

<p>Demurrer to defense contained in an answer.</p>

<p>Action to foreclose a municipal lien.</p>

<p>Lunatics—‘duty of court to care for estate—'When petition of nephew for allowance from aunt’s estate disallowed.</p> <p>Where there is nothing in the relationship of nephew and aunt which would east upon her the duty or the obligation of supporting him, his petition for an allowance out of the income of her estate, she being an incompetent, must be denied.</p> <p>That an incompetent has an ample fortune, that her income is large and greatly exceeds personal requirements, afford per se no ground for giving away her property.</p>

<p>Contracts—'for paving — duty of contractor to repave at end of five years from acceptance of work — claim of city in action to recover for repairs.</p> <p>Though the words of a street paving contract may be broad enough to suggest a duty on the part of the contractor to repave at the end of five years from the acceptance of the work, their operation must be restricted to a guaranty on his part against defects arising through faulty performance of the work.</p> <p>Where the claim of a city, in an action by it to recover for repairs involving the practical replacement of the paving work done by defendant under a contract, is based upon the asserted obligation that he was to repave the street surface, if necessary,' at the end of the five-year period, and there is a failure of proof that the conditions which rendered it necessary to repate arose through faulty workmanship or the use of defective material in the course of laying the original pavement, defendant is entitled to a judgment of nonsuit.</p>

<p>Penalties — recovery of, under section 69 of Stock Corporation Law — corporations—'request for statement of assets and liabilities of a corporation.</p> <p>Where a stockholder in a letter to the treasurer of his corporation did not ask for a “ particular account of all the corporation’s assets and liabilities,” but while asking for certain other information upon subjects not within the statute at all requested a “ statement ” of the assets and liabilities of the corporation, the treasurer in an action against him to recover a penalty under section 69 of the Stock Corporation Law ia entitled to a judgment for the dismissal of the complaint.</p>

<p>Action to remove a substituted trustee.</p>

<p>Application to revoke a liquor tax certificate.</p>

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

<p>Railroads — power to locate at any point on property a switch yard — restriction by statute.</p> <p>Injunctions — when railroad company restrained from using its tracks in front of certain premises — not denied on ground that it would involve serious interference with service rendered to the public — railroads.</p> <p>Unless restricted by statute, the directors of a railroad company have the incidental power to locate at any point upon its property such a classification and switch yard as in their discretion is advisable, having due consideration for its patrons, provided, however, they do not thereby interfere with the lawful rights of others.</p> <p>The owner of a modern twelve-story apartment-house of the highest grade, situated in a part of the city of New York long settled and populated as a high-class residential section, and in which he resides, is entitled to a permanent injunction restraining defendant, a railroad company, from using its tracks in front of his premises as a switch, classification and storage yard or terminal, and from burning soft coal on its locomotives in front of or in the vicinity of his premises.</p> <p>Where it has not been established that the discontinuance of the section of defendant's right of way in question as a yard would occasion more than an inconvenience for which some sufficiently adequate remedy could not be provided, the granting of the injunction will not be denied on the ground that it would involve a serious interference with the important service being rendered by defendant to the public.</p>

Motion to confirm report of the commissioners of estimate and the commissioner of assessment in a proceeding to acquire land for opening of street.

<p>City of New York — proceeding taken by city to acquire land for street purposes—■ appeal from award for inadequacy — condemnation proceedings.</p> <p>Where an award, in a proceeding taken by the city of New York to acquire land for street purposes, was reversed on. appeal for inadequacy, and upon a hearing before new commissioners a largely increased award was made, interest on the award runs from the date of the report which receives final confirmation; and a motion to compel payment of interest from the date of the order confirming the award which was appealed from will be denied.</p>

<p>City of New York — actions by or against city must be brought in corporate name of — action to remove encroachment — pleading.</p> <p>Under section 1614 of the Greater New York Charter all suits by or against the city must be brought in the corporate name of “ The City of New York; ” therefore, the complaint in a suit in equity, brought by the president of one of the boroughs of said city to remove an encroachment upon one of its public streets, is demurrable on the ground that plaintiff has not legal capacity to maintain the action.</p>

<p>Motion" to confirm an inquisition in lunacy.</p>

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

Motion by the plaintiff to set aside a verdict in favor of the defendant, after trial by the court and a jury, in the City Court of the city of New York.

<p>Wills — exhibition of paper drawn and subscribed and declaration to witnesses that same is his last will and testament — full attestation clause — forgetting signature by witness.</p> <p>Where a testator exhibits a paper drawn and subscribed by him, with the subscription in plain sight, and declares to the witnesses that it is his last will and testament and asks them to sign as witnesses, he has done all that the statute requires and there is a sufficient publication of a will and acknowledgment of testator’s subscription thereto.</p> <p>Where the paper has a full attestation clause signed by two witnesses, one of whom testified that testator presented the paper to both of them with bis subscription in plain sight and in substance' and effect told them that it was his will and asked them to sign it as witnesses, the instrument may be admitted to probate though the other subscribing witness testifies that the testator did not tell him that it was his will and did not ask him to sign as a witness, where the court is satisfied from his testimony that he has forgotten the transaction.</p>

<p>Domicile — continuation of — will of decedent who died temporarily-residing in foreign state—'probate of will in foreign state — decree of probate not adjudication of domicile.</p> <p>The continuance of a man’s domicile of origin, or of choice, is presumed until it affirmatively appears that it has been changed, and in order to constitute such change both animus and factum must occur; where the question of his domicile is in doubt, his intention to change it may be established by his declarations.</p> <p>Where the will of a decedent, who died while temporarily residing in the state of New Hampshire, was probated in the state of New Jersey, but it appears that until the time of his death decedent was engaged in business in this state, his domicile of choice, where for many years he had exercised his right of franchise as an elector, and there is no proof that he abandoned his New York home or residence for good and all, the value of his intangible personal property in this state is subject to a transfer tax upon a finding that his last domicile was in this state.</p> <p>The decree of probate of decedent’s will was not an adjudication of his last domicile, nor did it prevent the Surrogate’s Court in this state from making an independent inquiry into the question of last domicile in a proceeding under the Transfer Tax Law.</p>

<p>Proceeding upon the judicial settlement of the accounts of administrators.</p>

<p>Executors and administrators — who has right to administer — public administrator of Bronx county — nonresident alien — Code Civ. Pro. § 2660.</p> <p>The provisions of section 2660 of the Code of Civil Procedure are made applicable to the county of Bronx by the Bronx County Act (Laws of 1912, chap. 548), and the public administrator of Bronx county exercises the same powers as the public administrator of New York county.</p> <p>Administration under said section 2660 is to be given only to those relatives of a deceased having, an actual right at the time of his death to share in the distribution of his estate.</p> <p>A resident brother of deceased, whose father is a nonresident alien, not being entitled to share in the distribution of the decedent’s personal estate, is not entitled to letters in preference to the public administrator.</p>

<p>Proceedings upon the judicial settlement of the account of an executor.</p>

<p>Wills — construction of — provisions of, permitting the holding of securities other than those authorized by law—empowering trustee by will — direction to trustee to counsel with testator’s wife.</p> <p>Provisions of a will permitting the holding or acquisition of securities by a testamentary trustee other than those authorized by law are to be strictly construed, and a departure from the normal course of the trust is only to be made upon a clear and controlling direction in the will.</p> <p>Where, as empowered by the will of their testator, executors transferred certain stock of the Standard Oil Company to the testamentary trustee who was authorized by the will to hold such property as an investment in the form it might be at the time of testator’s death, and where pursuant to a judgment against the Standard Oil Company the trustee received in addition to said stock other stock in thirty-three corporations which prior to said judgment were subsidiary companies of the Standard Oil Company, the trustee may not lawfully hold the latter stock as a part of the trust estate.</p> <p>The fact that the will directs the trustee to freely counsel and advise with testator’s wife, and that she desires said additional stock to be held by the trustee, in no way assists in the construction of the will, nor avails to justify conduct forbidden thereby.</p> <p>A deviation from the original scheme of investment which confides the interest and the safety of the trust fund to new personalities cannot be regarded as a continuance of the property in the form of investment as originally held.</p>