Volume 85 — New York Miscellaneous Reports

Appeal by the plaintiff from an order of the Municipal Court of the city of New York, borough of Manhattan, third district, setting aside a verdict rendered in favor of the plaintiff.

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

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

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

Appeal by the plaintiff from an order of the Municipal Court of the city of New York, borough of Manhattan, third district, denying her motion to amend the name of the defendant in the judgment and all other papers in the above-entitled action.

Appeal by the plaintiffs from a judgment of the City Court of the city of New York dismissing the complaint at the close of the plaintiffs’ case and from an order denying their motion for a reargument of the defendant’s motion to dismiss the complaint.

Appeal by the 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 and from an order denying a motion for a new trial.

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

Appeal by the defendants Oberle and American Surety Company from a judgment of the City Court of the city of New York entered upon a decision in favor of the plaintiff after a trial before the court sitting without a jury.

Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fifth district, entered upon a dismissal at the close of the plaintiff’s case.

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

Appeal by defendant Hedges from a judgment of the Municipal Court of the city of New York, borough of The Bronx, first district, in favor of plaintiff, entered after a trial by a judge without a jury. The complaint was dismissed as against the city of New York, the other defendant.

Appeal by plaintiff 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 defendants.

Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, in favor of plaintiff, after a trial by a court without a jury, on an agreed statement of facts.

Appeal by the defendant from an order of the City Court of the city of New York, granting plaintiff’s motion for reargument on a motion to punish for contempt.

Appeal by defendant from an order denying a motion to modify a judgment by striking therefrom the words “Defendant is liable to arrest and imprisonment in this case. ’ ’

<p>Appeal from a judgment of the Municipal Court of the city of New York, borough of Manhattan, ninth district, in favor of the defendant, entered, upon a trial by the court without a jury.</p>

<p>Appeal from a judgment rendered by a police justice and also from a judgment rendered in said court overruling a demurrer to plaintiff’s complaint.</p>

<p>Equitable estoppel — when city bound by its deed of conveyance — exchange of properties between city and railroad company on either side of right of way.</p> <p>In an action in ejectment it appeared that simultaneously with a conveyance, in 1885, by defendant, the city of Buffalo, to plaintiff railroad company of a twelve-foot strip of land lying on the easterly side. of its original right of way, the center of which is the present monumented line between the company’s two tracks as now laid down, plaintiff by warranty deed conveyed to defendant a strip of land on the westerly side of its right of way and each went into possession of the parcel conveyed to it. At the time of the conveyance of the twelve-foot strip, underground water-mains leading from the pumping station of the city waterworks system to the streets above crossed not only the original right of way of plaintiff but also crossed the twelve-foot strip. Although the deed of the twelve-foot strip conveyed an absolute fee to the land, the railroad company has never questioned the right of the city to maintain its tunnels and water-mains across the strip. Held, that assuming that in the execution of the deed the city and its officials exceeded the powers and authority conferred upon them by chapter 672 of the Laws of 1881, amending the charter of the city of Buffalo, which governs the disposition of lands by the city, the city is equitably estopped from repudiating its grant of the twelve-foot strip.</p> <p>The deed by the city, however, should not be construed to in any way impair its right to maintain its tunnels, pipes and mains underground running from its pumping station across the strip, or to interfere with its laying new or additional mains or pipes beneath the surface across the strip of land conveyed when it becomes necessary, such right being evidently in the contemplation'of the parties to the exchange of lands although the easement was not in express terms reserved in the conveyance.</p> <p>The railroad company having permitted the city to erect expensive buildings which encroach upon its lands, and where the removal of a retaining wall upon the east side of the tracks of the railroad right of way will involve large financial loss to the city and in a disastrous degree impair the value and usefulness of a pumping station erected at great cost without conferring any substantial benefit on the railroad company itself, and these structures have continued to exist for many years, equity will not require the removal of the pumping station wall on the top of the retaining wall.</p> <p>Should the city at any time in the future remove said wall and rebuild its pumping station, the railroad company may revoke its license and resume possession of the property within the original right of way.</p>

<p>Habeas Corpus proceedings.</p>

<p>Demurrer to plaintiffs’ complaint.</p>

<p>Indians — Indian Law, § 5—' jurisdiction of courts of this state to determine disputes as to possession of lands — Onondaga Indians — holding lands under Indian right of occupancy.</p> <p>Under section 5 of the Indian Law, the courts of this state have jurisdiction to try and determine disputes between Onondaga Indians as to the possession of lands lying within the boundaries of the Onondaga reservation to which they have a perpetual right of occupancy, and on which there is no court of any kind.</p> <p>The Onondaga Indians still possess their customary law, and until the legislature, in those cases where it may, sees fit to impose our laws upon them, their customary law prevails and it is the duty of the courts to enforce it.</p> <p>Among the Onondaga Indians no such thing as heirship, or the disposition of property by will, is known and children trace their descent from their mother.</p> <p>An Onondaga Indian who at his death held certain .lands on the Onondaga reservation under the Indian right of occupancy was survived by his widow, a St. Eegis Indian, and •their six children, and also by two sisters who, under the Indian law, were his nearest relatives, and in accordance with the Indian custom they gave a “ dead feast ” the action at which in giving away orally by an Indian present of the property of the deceased to his two sisters was ratified by the chiefs and title passed to the donees who entered into possession.</p> <p>Held, that the Supreme Court of this state had jurisdiction to entertain an action to recover possession of the lands, and that by virtue of what occurred at the “ dead feast ” the right of occupancy was not in the children but in the sisters of the deceased.</p>

<p>Taxes — provision of section 8 of Tax Law—'assessment of personal property — absence of evidence as to change .of residence.</p> <p>The provision of section 8 of the Tax Law, that “every person shall be taxed in - the tax district where he resides when the assessment for taxation is made,” does not mean where he resides for the purpose' of voting, or where - his domicile is.</p> <p>The personal property of one residing in the city of Ogdensburg on July 1, 1913, and whose business is carried on in said city where she and her property have the protection of the laws, is properly assessed in said city for the year 1913, in the absence of evidence that she had in good faith- changed her residence and that her personal property is assessed in any other tax district.</p>

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

<p>Associations — benefit — life insurance refusal to pay increased assessment — cancellation of policy — pleading.</p> <p>The defendant, a benefit association, issued to a member a policy of insurance payable at his death to his wife, the beneficiary therein named. About a year prior to his death the. monthly due or assessment was increased above the amount which had been agreed upon and fixed by the policy at the time it was issued. Deceased refused to pay the increased assessment, and regularly tendered the amount fixed by the policy until informed by defendant that such amount would not be accepted, and the policy was canceled. Held, that such - cancellation was a positive, continuing declaration of defendant that it would not perform its contract in the future and that the beneficiary and the insured were each excused from performance, or tender thereof,' and that the beneficiary might maintain an action for damages.</p> <p>A complaint setting forth the facts, and alleging in conclusion that by reason of the premises and the wrongful acts of defendant there had accrued to plaintiff a cause of action against defendant to recover the specific sum payable under the policy, states a cause of action for breach of contract.</p> <p>The right of action in equity to have the policy adjudged to be in full force and effect was not the plaintiff’s only remedy.</p>

<p>Injunction—'violation of, must be measured by its terms — motion to punish for contempt, when denied.</p> <p>The conduct of one charged with a violation of an injunction must be measured by its terms, having in view the purpose for which it was granted, and its provisions will not be enlarged by construction or implication in order to hold him guilty.</p> <p>Where, on a closely litigated trial of the right of defendant to use the word “ Stephenson ” and the words “ Stephenson’s Bar Belt Dressing ” upon packages containing the dressing, defendant was successful and not restrained by the judgment in plaintiff’s favor from the use of his own name in business, but by which judgment he was restrained “ from manufacturing, advertising, offering for sale or selling a bar belt dressing either in the form of a cylindrical bar or in any form similar to packages of the following description, viz.: ‘ cylindrical bars about 10% inches in length and 1% inches in diameter ’ ” and from manufacturing, advertising, selling or offering for sale a bar belt dressing in wrappers bearing yellow or red colors or any shade of either,” and thereafter he manufactures and sells his commodity done up in packages of an oval shape with two sides distinctly flattened and being from one-half to three-quarters of an inch longer than plaintiff’s packages, the packages having light pink covers with blue printing upon them, and defendant denied he wilfully or in any way violated the injunction, a motion to punish him for alleged contempt will be denied.</p>

<p>Executions—■ return of, nulla bona—Code Civ. Pro. §§ 532, 1391 — pleading.</p> <p>Where the complaint in an action brought under section 1391 of the Code of Civil Procedure, as amended in 1911, to recover moneys which defendant was directed to pay pursuant to an order of a justice of the Supreme Court under an execution returned nulla bona requiring defendant to pay to the sheriff ten per cent, of the wages of the judgment debtor, alleges that said order was duly made and entered, it is good under section 532 of the Code of Civil Procedure; and a demurrer because of an omission of an allegation that there were no other outstanding executions against such wages prior to that of plaintiff will be overruled.</p> <p>The presumption is that the affidavit upon which the order was made contained sufficient allegations of fact to give the court jurisdiction; if this was not so, the question' of the sufficiency of the complaint must be raised by a denial contained in the answer.</p>

<p>Injunctions — restraining persons from exercising functions of public office —■ Code Civ. Pro. § 603 — motion to vacate and set aside injunction when denied.</p> <p>Where two persons have assumed to enter into possession of a public office, and each is exercising or assuming to exercise the duties thereof, the court under section 603 of the Code of Civil Procedure has power to, and as matter of discretion may, grant an injunction restraining one of said persons from exercising the functions of the office pending the trial-.of an action brought by leave of the attorney-general in the name of the people to try the title of the other person to the office.</p> <p>Where in such case the injunction is based upon an assertion which has been supported by the judge who granted it, that relator is rightfully entitled to the office and that defendant is unlawfully attempting to intrude into it, a motion to vacate and set aside the injunction will be denied, with costs.</p>

<p>Carriers — liability of—provision of bills of lading — waiver of— action by consignor for damages — what is reasonable time for delivery.</p> <p>The doctrine of waiver applies to all cases of forfeiture.</p> <p>A provision of a bill of lading, that unless a written claim for loss of goods by reason of failure to make delivery of same is made within four months after a reasonable time for delivery has elapsed the carrier shall not be liable, is waived where the carrier after the expiration of the four months’ period, at the suggestion of the consignor, undertakes to trace the goods and invites the presentation of a claim for loss under the contract.</p> <p>Where, in an action by a consignor for damages, it appears by the correspondence between him and the carrier that the latter conceded its obligation to pay, plaintiff is entitled to a judgment for the value of the goods at the time when they were delivered for shipment.</p>

<p>Action to have certain contracts set aside.</p>

<p>Pleading—'in action against stockholders of trust company to enforce their statutory liabilities — counterclaim — demurrer.</p> <p>The state superintendent of banks, in an action against the stockholders of a trust company, which he is liquidating, to ■ enforce their statutory liabilities, represents the creditors of the corporation; and a claim of a defendant based on services alleged to have been rendered by him to the corporation before the plaintiff took possession cannot be asserted as a counterclaim, and a demurrer thereto must be sustained.</p>

<p>Motion to overrule demurrer to complaint.</p>

<p>Action to set aside as fraudulent certain conveyances.</p>

<p>Corporations — organization of — proposition to pay salaries irrespective of earnings — over capitalization of — when trustees in bankruptcy may maintain action for accounting.</p> <p>At the organization of a corporation in 1907 to take over a business theretofore conducted by one deceased and to assume all liabilities of the business, the value of the business was fixed at $150,000, and stock in that amount was issued one share to each of decedent’s three sons and the balance to his wife. The salary burden was $26,300 of which $12/000 was paid to the widow for no services rendered, though there were at the time creditors in the amount of $29,952.42 with a surplus of assets over liabilities of $12,937.08. The first year the corporation profits were $12,128.24 and its liabilities rose to $32,497.73. For the year ending May 9, 1909, the losses were $22,270.71 and of the $26,300 salaries paid that year only about $4,000 was actually earned, the balance being paid out of the capital of the corporation, which continued to lose business until the liabilities rose to $71,015.04, yet large salaries were paid and Christmas gifts were voted to all the stockholders in the sum of $100 each. Held, that the proposition to pay such salaries irrespective of the earnings of the corporation was fraudulent as against it and its creditors, as was also the over capitalization for the purpose of procuring credit, and that the trustee in bankruptcy of the corporation could maintain an action against the directors, officers and stockholders of the company for an accounting of the assets of the corporation.</p>

<p>Contracts — building — action to foreclose a mechanic’s lien — negotiable instruments—' payment on balance due.</p> <p>Pursuant to an agreement reciting that upon the completion of certain work on a building there would be a balance due the contractor, the owner gave its note for $2,500, payable to the contractor, who indorsed it to the subcontractor on the express understanding that if the contractor did not complete the work, or if a less amount than the face of the note was due the contractor on the completion of the work, the subcontractor would hold the maker of the note responsible for only so much work as had been done. The contractor did not complete the work and the subcontractor discounted the note at a bank without notice to it of the agreement, and neither the note nor the agreement was ever filed in the proper county clerk’s office as required by section 15 of the Lien Law. In an action to foreclose a mechanic’s lien for labor and materials furnished the contractor, it appeared that, on plaintiff’s advice to the maker of the note not to pay it, payment was stopped but before the maturity of the note and prior to its payment after suit brought thereon plaintiff had filed his lien. Held, that plaintiff was entitled to a judgment establishing his lien on the amount deposited in court and to a personal judgment against the contractor for any deficiency.</p> <p>The subcontractor having borrowed the face of the note upon discounting it, and the bank having compelled the maker to pay it, the subcontractor’s obligation to the bank on the discount had been satisfied; hence it had gained $2,500 by the transaction; had the subcontractor kept the note as agreed, the amount due on the contract at the completion of the work would have been applicable in the first place in payment of plaintiff’s lien and the subcontractor would have been entitled to the balance.</p>

<p>Wills—time of execution — establishment of trusts.</p> <p>At the time of the execution of the will of a testator survived by two daughters, two sons and a granddaughter, her father, a son of testator, was dead. The will, after providing for a separate trust fund for the benefit of said granddaughter, by the same paragraph which declared a trust in all the remainder of the estate, the income to be paid to his surviving children in equal shares, further provided: “In the event that any one of my said children or my said grandchild shall die without leaving any lawful issue him or her surviving, then the income and profits of my estate to which he or she would have been entitled, if living, shall be divided between my surviving children above mentioned and the lawful issue of any deceased child, share and share alike, such issue to take the share to which the parent, if living, would have been entitled, and the principal shall form a part of the common fund to be divided among, the lawful issue of my said children whenever such issue shall arrive at the age of thirty years.” Upon the death subsequently of one of testator’s said daughters, the executor and trustee, in accordance with the decision of the Court of Appeals (112 N. Y. 167) adjudging that the trust established by the will did not contravene the rule against perpetuities and was valid, paid the income of said daughter’s share in the primary trust in equal shares to the other three of -the surviving children of testator. Held, that the words “ the lawful issue of any deceased child ” did not include testator’s said granddaughter, and that upon the death of his said daughter the granddaughter was not entitled to share with her two surviving uncles and one aunt in said lapsed share of testator’s deceased daughter.</p>

<p>The opinion states the case.</p>

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

<p>Bonds — for faithful performance of contracts — when contract joint and several — necessary parties.</p> <p>Though a surety company bond for the faithful performance of another’s contract is joint and several, the principal is not a necessary party defendant in an action on the bond.</p>

<p>Attorneys — disqualification of — when acting as assistant clerk in a Magistrate's Court of city of New York outside the hours of his employment.</p> <p>A lawyer employed as an assistant clerk in a Magistrate’s Court of the city of New York under salary is not disqualified from acting, outside the hours of his employment in the court, as the attorney for a judgment creditor in pursuit of his rights and remedies.</p>

Proceeding under section 2707 et seq. of the Code of Civil Procedure to obtain information in relation to certain stock and the certificates therefor.

<p>Master and servant — application for employment as street car conductor — money paid for work done while under instruction should be deducted from amount due at time of leaving — street railways.</p> <p>Where the application of one for employment as a street car conductor provided that in the event of his leaving the service within six months money paid to him for work done while under instruction should he deducted from the amount due him at the time of leaving, the word “leaving” will be held to mean his voluntary act and not his discharge from service.</p>

<p>Action for the foreclosure of mortgages.</p>

<p>Fraudulent representations — as to value of real estate — foreclosure of mortgage given to secure part of purchase price — pleading.</p> <p>While upon the question of value a vendee of real estate must rely on his own judgment and not upon the representations of the vendor, yet where at the time of the sale the vendor, a retired clergyman, knew that the property was not worth one-half of the agreed purchase price, and deliberately misrepresented its value to the vendee, a minister of the gospel, after having gained his confidence and lulled his suspicions to sleep under the guise of religious interest and friendship, and the answer in an action to foreclose a mortgage given to secure a part of the purchase price pleads that defendant was induced to purchase the property through false and fraudulent representations, and the vendor does not deny that he made substantially all of the statements to induce the sale alleged in the answer, defendant is entitled to judgment for a cancellation of the mortgage.</p>

<p>"Action for dower.</p>

<p>Action by receiver in supplementary proceedings to reach interest of judgment debtor in partnership.</p>

Action to recover possession of a bond and mortgage for $300,000 dated November 30, 1906, made by Edward T. Jenkins to John G-. Jenkins, Sr., and assigned by the latter to the Jenkins Trust Company, later known as The Lafayette Trust Company.

Action by receivers of a defunct corporation to recover a balance claimed to be due upon a subscription for fifty shares of the capital stock of said corporation and which subscription was executed by defendant.

Appeals from two judgments of the Municipal Court of the city of Hew York, borough of Manhattan, third district, entered in favor of the defendants dismissing the complaints, with costs. The two cases are submitted upon one record of trial before the court without a jury.

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

<p>Appeal from a judgment of the City Court of the city of New York entered in favor of the defendant after a decision by the court upon an admitted statement of facts.</p>

<p>Negotiable instruments — bills, notes and checks — notice to stop payment on check — liability of bank.</p> <p>A cheek is a mere order on a hank to pay from the depositor’s account according to the instructions therein contained, and may be revoked by the drawer at any time before payment or certification.</p> <p>A notice to stop payment on a cheek for $196.76, dated December 21, 1910, payable to a designated person, does not describe with sufficient accuracy a check for $196.75, dated December 23, 1910, and payable to bearer, so as to render the bank liable to the drawer for paying it.</p>

<p>Contracts — payment made on account — what facts show an open and running account.</p> <p>Where, after plaintiff’s salesman had contracted to sell goods to defendants on stated terms, they ordered goods day by day without further express contract, and payments made on account not corresponding in amount with any particular item were credited generally against the entire bill, the facts show an open and running account which could not be split up and sued upon in installments.</p>

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

<p>Appeal from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fourth district, entered in favor of the plaintiff upon a verdict of a jury for $300.</p>

<p>Negotiable instruments—where no consideration passed — judgments —■ evidence.</p> <p>Where the consideration for which one signed a check obtained from him by false pretenses never passed to him, the one so obtaining the check is primarily liable to an indorsee; and payment by him to the indorsee discharges the check as against all the parties.</p> <p>The direction of a judgment upon issues of fact is erroneous where there is a conflict of evidence.</p>

<p>Landlord and tenant — injuries received by fall of balcony on demised premises — liability of landlord — evidence.</p> <p>Where, during the use by a religious society of an auditorium in. a building leased to defendants, an attendant on the services was injured by the fall of the balcony, defendants are not liable in the absence of proof that the auditorium was under their control at the time of the accident.</p>

Appeal by the defendant from a judgment of the City Court of the city of New York in favor of plaintiff for $1,622.64, entered upon the verdict of a jury.

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

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

<p>Evidence — in action to recover for services as architect — when exclusion of evidence constitutes reversible error.</p> <p>Corporation — when persons chargeable with notice of purpose of its creation — prima facie evidence — absence of express agreement.</p> <p>Where, in an action to recover for services as architects in the preparation of plans for a proposed building, plaintiffs’ testimony as to what defendant’s president, who could not speak English, told plaintiffs is in conflict with said president’s testimony received through one of his employees acting as interpreter, .the question whether he correctly interpreted the president’s words is a question for the jury.</p> <p>In such an action, testimony as whether defendant ever owned the real property on which the building was erected, had ever erected or taken any steps to erect a building thereon, or whether he was ever authorized to erect a building and as to who, other than defendant, did own the land, is admissible; and its exclusion constitutes prejudicial error calling for the reversal of a judgment in favor of plaintiffs who offered no proof that defendant owned the land or erected a building thereon.</p> <p>Persons dealing with officers of a corporation, or with persons assuming to represent it, are chargeable with notice of the purpose of its creation and its powers and with the authority, actual or apparent, of its officers or agents with whom they deal.</p> <p>Prima facie, the president of a $10,000 corporation cannot, . without express authority from the board of directors, bind the corporation by contracts relating to the erection on another’s land of a building to cost $125,000, which in the absence of express agreement to the contrary would become the property of the owner of the land.</p>

Appeal by defendant from a judgment of the City Court of the City of New York, entered in favor of the plaintiff for the sum of $723.57, besides costs, upon the verdict of a jury.

<p>Landlord and tenant — requirements of state department of labor — enforcement — assumption of expense.</p> <p>Where the owner of a building in the city of New York complied with a notice from the state department of labor requiring him to install an additional water closet in a part of the building which he had leased for factory purposes, and the improvement was such as under the lease it was the duty of the tenant to make and for his failure so to do he was obligated to reimburse the landlord for the expense incurred in complying with said notice, the landlord may recover such expense from the tenant.</p> <p>Though section 62 (5) of the Labor Law authorizes the commissioner of labor to enforce any municipal by-law, ordinance or regulation relating to factories which are not in conflict with the statute, and section 1275 (3) of the Penal Law makes the violation of any such rule or regulation a misdemeanor, the duty of complying with such requirement is upon the owner or lessee of an entire building, but as between themselves it is competent for landlord and tenant to agree that the latter shall obligate himself to assume all expense of doing such things as the law imposes upon the landlord incident to the use of the premises for factory purposes.</p>

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

<p>Insurance (life) — contracts of — action for breach of warranty — evidence— exclusion of.</p> <p>Under section 58 of the Insurance Law, every policy of life insurance must contain the entire contract, and in an action thereon breaches of warranty in the application, which was not attached to the policy, are not available as a defense, in the absence of fraud.</p> <p>A breach of warranty in a policy of life insurance that the insured had not before its issue been attended by a physician for any serious disease or complaint, and had not had any pulmonary complaint, is a defense to an action on the policy.</p> <p>Where a policy of life insurance contains a stipulation that the duly filed proofs of death shall be evidence on behalf of the company, the physician’s certificate therein is competent evidence as plaintiff’s admission of material facts, and the exclusion of said certificate is reversible error.</p>

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

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

<p>Appeal by plaintiffs from a judgment of the Municipal Court of the city of New York, borough of Man- . hattan, second district, entered in favor of the defendant upon the verdict of a jury.</p>

<p>Composition with creditors — fraud and preferences — validity of composition agreement.</p> <p>Appeal and error — presenting questions in lower court.</p> <p>Where a debtor enters into a composition agreement with his creditors to pay each an equal amount, any secret agreement by which some of them are to get more than the amount specified in said composition agreement justifies a repudiation thereof by any of those who signed it.</p> <p>While the rule of procedure is that the charge of the court to the jury is “the law of the case,” and if not excepted to is conclusive and binding, it does not go so far as to hold that where a judge submits questions of fact to the jury when there is no evidence to support them, and the ease is submitted upon an entirely erroneous theory, and the verdict is based on the assumption of facts which did not exist and which are unsupported by the evidence, the appellate court will refuse to reverse a judgment based on such a charge and such a verdict where a motion for judgment was made at the close of the case, and also a motion for a new trial on the ground that the verdict was contrary to and against the weight of evidence.</p>

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

<p>Tenement House Law, §§ iog, 124 — violation of — provision relating to prostitution in tenement house — action to recover penalty prescribed— construction of statute — evidence.</p> <p>The statute (Tenement House Law, §§ 109, 124), which provides that no tenement house or any part thereof shall be used for the purpose of prostitution, and in ease of a violation of said statute subjecting the owner to a civil penalty, is a valid exercise of the police power so far as it regulates generally the use and construction of tenement houses; in order, however, to charge a person with responsibility for the mere commission of an act by another, not his agent, it must be within reasonable possibility that he could have prevented the same.</p> <p>The landlord of a tenement house in the city of New York cannot lawfully be held responsible merely because one or more acts of prostitution have been committed by a tenant or other person on the premises.</p> <p>A construction of said statute that would require the landlord to have an agent constantly present with every single person in the house in order to prevent prohibited acts therein would place a burden upon the ownership of this class of property equivalent to substantial confiscation and would render the statute both unreasonable and unconstitutional, and if possible it will not be so construed.</p> <p>The provision of section 154 of said statute that in an action to recover the penalty prescribed for a violation of any of its provisions relating to prostitution, proof of the ill-repute or common fame of the premises, or of the inmates thereof, or of those resorting thereto, shall constitute presumptive evidence, and that it will be presumed that such use was with the permission of the owner, agent and lessee lends color to the notion that the legislature had in mind that the owner should not be chargeable generally under the statute without knowledge or notice.</p> <p>In such an action testimony of the owner of the building that she had no knowledge of the unlawful use of leased apartments therein and that nothing had occurred even to suggest a suspicion on her part, prior to the arrest of the offending lessees, is competent and relevant.</p>

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

Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, in favor of plaintiff, entered after a trial upon an agreed state of facts by a judge without a jury.

Appeal by plaintiff from an order of the Municipal Court of the city of New York, borough of Manhattan, third district, setting aside a verdict of a jury in favor of plaintiff and dismissing the complaint on the merits.

Appeal by the defendants from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, rendered in favor of plaintiff for $250 damages and 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, second district, rendered in favor of plaintiff for $330 damages, besides costs.

<p>Lease — provisions of written lease — waiver of notice required by lease —■ landlord and tenant — violation of covenants of lease.</p> <p>Where a written lease provides that the landlord shall not be liable to the tenant for damages caused by the leakage of the roof unless he neglects to repair it within a reasonable time after a written notice of such leakage is delivered to him, the giving of such notice, though a condition precedent to a right of recovery for a violation of the landlord’s covenant to repair, may be waived by him, or his duly authorized agent.</p> <p>An oral notice to the landlord followed by his promise to repair is a waiver of the written notice required by the lease.</p>

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

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

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

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

<p>Appeals from,'judgments of the City Court of Buffalo convicting defendant of four separate violations of the Labor Law.</p>

<p>Costs — taxation of — fees—when plaintiff entitled to tax two fees “after notice and before trial” —Code Civ. Pro., § 3251.</p> <p>Where the trial of a cause was not completed owing to the illness of a juror occurring after the summing up and before the charge to the jury, plaintiff, who again noticed the cause for trial and obtained a verdict, is entitled to tax two fees “ after notice and before trial,” under section 3251 o£ the Code of Civil Procedure.</p>

<p>Corporations—foreign — authorization to do business in this state — pleading—General Corporation Law, §§ 15, 16.</p> <p>Where the allegations of a complaint in an action on contract, that plaintiff is a foreign corporation and duly authorized to do business in this state, is specifically denied by the answer, it will be assumed that plaintiff is a stock corporation, in the absence of allegation and proof on the point, and plaintiff cannot recover without both pleading and proving its compliance with sections 15 and 16 of the General Corporation Law.</p>

<p>Constitutional law—Labor Law, art. II, § 8, providing that eight hours shall constitute a day of employment for certain pursuits — Penal Law, § 1275.</p> <p>Section 8 of article II of the Labor Law, which provides that eight hours shall constitute a day of employment for all laborers or employees engaged in the kind of labor therein mentioned, and subjects any person, etc., convicted of a violation thereof to a fine to be recovered by a civil action, is a valid exercise of legislative power.</p> <p>The amendment to said section by chapter 466 of the Laws of 1913, in effect May 9, 1913, that “Any person who is employed as signalman, towerman, gateman, telegraph or telephone operator in a railroad signal tower or public railroad station to receive or transmit a telegraphic or telephonic message or train order for the movements of trains and who works eight hours or more in every twenty-four each and every day continuously, and all gatemen so employed must have at least two days of twenty-four hours each in every calendar month for rest with the regular compensation; subject to the foregoing provisions relating to extra service in cases of emergency,” is valid.</p> <p>A contention that said section as so amended is in contravention of sections 5 and 6 of article I of the State Constitution and of the Fourteenth Amendment to the Federal Constitution, in that it attempts to regulate interstate commerce in opposition to the exclusive power vested in Congress and attempts to regulate a detail of interstate commerce over which Congress, by the passage of the Hours of Labor Act of March 4, 1907, has assumed exclusive control, is untenable.</p> <p>Said section 8 of the Labor Law, as amended, providing a remedy by civil action to recover a penalty, and section 1275 of the Penal Law, as amended, in effect April 22, 1913, making a violation of any of the provisions of said section 8 a misdemeanor, either or both of said remedies can be pursued.</p>

<p>Motion to dismiss an appeal from a judgment of a Justice’s Court.</p>

<p>Motion to vacate order requiring plaintiff to give security for costs.</p>

<p>Contracts — guaranty on sale of automobile — breach of warranty— pleading — action to recover balance of purchase price.</p> <p>A guaranty on the sale of an automobile that it will be free from defects for a year necessarily carries with it a warranty that the machine at the time of sale is of sufficiently good workmanship and materials to run a year under ordinary and proper use without showing defects; and the seller is liable for any defect that may have appeared during the time limit not due to the buyer’s, improper use of the ear.</p> <p>In case of the breach of the warranty, the buyer’s measure of damages is the difference between the actual value of the car and its value at the time of sale had it been as represented.</p> <p>Within the time limit of the guaranty but after the car had been driven about 3,500 miles the frame broke during ordinary use, the radiator leaked and the brakes did not work properly, but the buyer without attempting to rescind the sale, on discovering the defects, demanded that the car be made right and allowed the seller to make repairs, but becoming dissatisfied therewith offered to return the car. In an action to recover the balance of the purchase price, defendant as a defense and counterclaim pleaded breach of warranty, damages and rescission of the sale. Held, reversing on principles applicable to rescission a judgment in favor of plaintiff for the full amount claimed, that upon discovery of the defects in the car two courses were open to defendant; he could return the car and plead rescission of the contract as a defense and counterclaim for the amount already paid on the purchase price, or he could keep the car and counterclaim for damages.</p> <p>Where defendant relied primarily on the defense of rescission but gave evidence of an attempted rescission at the trial and refused to elect to stand on his counterclaim for damages, the trial court was justified in disregarding the latter branch of the case and deciding the case as it did.</p>

<p>Action to compel specific performance of a contract.</p>

<p>Partnership — action for dissolution of partnership and for accounting — testimony as to individual ownership of lease hy defendant.</p> <p>Plaintiff under an oral agreement put a certain amount of cash in defendant’s saloon business which he knew was not paying, in consideration of a one-half interest therein, nothing being said as to the duration of the venture. Neither during the negotiations leading up to the agreement, nor in the agreement itself, was there any reference to defendant’s lease of the premises where the business was carried on, or discretion as to whether or not the firm should succeed thereto. After two years’ unsuccessful effort to build up the business, it, together with the fixtures, kitchen utensils and lease, was sold with plaintiff’s consent. In an action for a dissolution of the partnership and an accounting, no testimony was given tending to show that the lease was treated as partnership property until the sale of the business, and defendant testified that he repeatedly asserted his individual ownership of the lease and that plaintiff did not dissent therefrom. Held, that the question whether the lease was to be accounted for as a partnership asset, being merely between partners, plaintiff was entitled to an interlocutory decree for an accounting and empowering the referee to determine what part of the purchase price paid for all the property represented the lease in copartnership assets respectively.</p>

<p>Suit in equity in the right of the vendor for the specific performance of a contract.</p>

<p>Action to have moneys in the possession of the defendant declared the property of the plaintiff, etc.</p>

<p>Statute of Limitations — when a defense in equity action to foreclose lien — vendor and purchaser.</p> <p>Where it does not appear that the vendee of land was insolvent at the time the purchase money was due, the six years" Statute of Limitation is a defense to an action in equity to have the debt declared a lien on the land and for a foreclosure thereof; in such ease, the vendor has no lien to foreclose.</p>

<p>A ctions — when maintainable — for causing death of plaintiff’s intestate— Code Civ. Pro., § 405.</p> <p>Where an administrator’s action for causing the death of his intestate was brought within two years, another action for the same cause brought more than three years after said death, but within one year after a judgment dismissing the complaint in the first action had been affirmed, is maintainable under section 405 of the Code of Civil Procedure.</p>

<p>Insurance (indemnity) — action against insurance company to recover for personal injuries — not called upon to defend action- excepted in terms by policy.</p> <p>An indemnity insurance company assuming the defense of an action for personal injuries pursuant to the provisions of a policy issued by it is not thereby estopped from denying any liability thereunder.</p> <p>The answer of plaintiff herein, a waste company, in an action against it to recover for personal injuries to one employed as a feeder boy at a picking machine in its shoddy mill, denied an allegation of the complaint that the boy was under sixteen years of age. An indemnity policy issued to plaintiff by defendant | herein provided that it should not cover any accident to a child ^ employed contrary to law, and in accordance with the provision of said policy the attorney for the casualty company appeared as the attorney for the waste company, and shortly after informed it by letter that investigation showed that the boy was under sixteen years of age and in order that the interest of the waste company might be fully protected the casualty company would “ continue to handle the action founded upon the above entitled claim pending the completion of our investigation, the company, however, reserving all of its rights to make a disclaimer of liability on account of the accident in the above entitled matter.” About two weeks later an inquest was taken. /'Tn an action on the indemnity policy to recover the amount ' paid in settlement of the action for personal injuries, and of another action growing out of the same accident, plaintiff made no proof as to the boy’s age, objected to the reception of any evidence on that subject, and took exceptions to the rulings that admitted such proof, relying for judgment on the fact that the casualty company appeared in the action but refused to continue therein. Upon dismissing the complaint after a trial before the court without, a jury, held:</p> <p>That defendant was not obligated to defend the action brought against the waste Company, the plaintiff herein; that, while defendant was obliged .to investigate and defend all suits brought against plaintiff, even if groundless, of which notices were given, unless such defendant should elect to settle the same, it was not called upon to defend an action which was excepted in terms by its policy.</p>

<p>Civil service — who entitled to preference in retention in employment — veterans.</p> <p>Under section 22 of the Civil Service Law, a veteran volunteer fireman employed as one of a number of laborers in the department of water supply, gas and electricity of the city of Hew-York is entitled to a preference in retention in employment, and where for economical reasons a general reduction in force is made those who axe not veterans should be discharged first.</p>

<p>Taxes — sale of lands of nonresident for taxes — defect in proceedings — rights fixed by statute before repeal remain unaffected.</p> <p>In proceedings to sell lands o£ a nonresident for taxes, failure to return the tax to the county treasurer as unpaid constitutes a defect, as does also the inclusion of three lots in a single assessment.</p> <p>The Tax Law of 1896 repealed chapter 442 of the Laws of 1855 which prescribed a limitation upon actions to vacate a sale of land for unpaid taxes, also chapter 217 of the Laws of 1891 which extended the operation of said statute of 1885; but rights which had become vested and fixed by said statute before repeal remain unaffected thereby.</p>

<p>Actions — to recover damages for causing death — Code Civ. Pro., § 841b.</p> <p>Section 841b of the Code of Civil Procedure added by chapter 228 of the Laws of 1913, and which provides that on the trial of any action to recover damages for causing death the contributory negligence of the person killed shall be a defense, to be pleaded and proved by the defendant, applies where the action was commenced before but tried after said section became effective.</p>

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

<p>Liquor Tax Law—proceeding to revoke and cancel liquor tax certificate— when proceeding may he instituted.</p> <p>A proceeding to revoke and cancel a liquor tax certificate may be instituted after the expiration of the excise year.</p>

<p>Taxes — what property taxable as real estate — tunnels under streets in city of New York when not taxable as special franchises.</p> <p>Tunnels of concrete construction under certain streets in the city of New York used for the conveyance of coal and ashes, and tunnels for the intake and discharge of water from a power house that are merely extensions thereof, are taxable as real estate and not as special franchises.</p>

<p>Divorce — where husband brings action for divorce in good faith — when wife’s action for separation must fail.</p> <p>Where a husband in good faith brings an action for divorce, has his wife arrested, brings an action to replevin furniture in his apartments, bréales into the same, and publishes a notice that he will no longer allow his credit to be used by his wife, who did much to foment difficulty and was not free from blame for several of the trying situations arising, an action by the wife for a separation on the ground of cruel and inhuman treatment must fail.</p> <p>Allegations of abandonment and failure to support, considered, and the issues resolved in favor of plaintiff, and defendant required to pay to her a stipulated weekly sum.</p>

<p>Statutes — consolidation of — repeal of — liability of surety company upon its bond given for money deposited with one for safe keeping or for transmission abroad.</p> <p>The consolidation of the statutes in 1909 had no effect whatever upon existing law.</p> <p>Though chapter 479 of the Laws of 1908, pursuant to which defendant, a surety company, gave its bond for money deposited with one for safe-keeping or for transmission abroad, was in terms repealed by the General Business Law of the Consolidated Laws of 1909, in legal effect there was no repeal, but merely a continuation of the former statute .reclassified and placed in the position it was intended to occupy in the general scheme of consolidation as appears by chapter 596 of the Laws of 1909, and defendant remains liable upon its bond.</p>

<p>Demurrer to complaint.</p>

<p>Claim of the city of New York for preferential payment from funds of a bank in course of liquidation.</p> <p>Motion by the city of New York for an order authorizing and directing the superintendent of banks of the state of New York, in charge of the liquidation of the affairs of the Northern Bank of New York, to pay the balance of the claim of the city of New York, with interest thereon, in full as a preferred claim.</p>

<p>Lease — of roof space for advertising purposes — action for rent—landlord and tenant.</p> <p>Where a lease of the roof space of a building for advertising display provided that “ if at any time during the term of this lease a building should be erected in the plot of ground to the south * * * of such a height as to obstruct the view of -the signs of the tenant as provided for herein, then the tenant may, upon thirty days’ notice to the landlords in writing of its intention so to do, cancel this lease, said cancellation to take effect at the expiration of said thirty days’ notice and at the end of a month, and this lease shall then be terminated,” the erection of a large sign upon the roof of an existing building on the plot referred to in said provision, whereby the view of the tenant’s sign upon the leased premises was materially obstructed, is a “ building ” within the meaning of such provision, and in an action for rent which accrued prior to the cancellation of the lease .of which the tenant gave due notice a motion for the direction of a verdict in favor of defendant will be granted, and plaintiff’s motion to reopen the trial and for a direction of a verdict in its favor will be denied.</p>

<p>Constitutional law — amending Greater New York Charter — taxpayer’s action under section 51 of General Municipal Law — Laws of 1911, chap. 679, not unconstitutional.</p> <p>There is no constitutional objection to chapter 679 of the Laws of 1911, amending the Greater New York Charter in relation to the payment of the cost of certain public improvements by adding section 247 thereto.</p> <p>Where a taxpayer’s action, brought under section 51 of the General Municipal Law, proceeds upon the assumption that the scheme of assessment adopted by the board of estimate and apportionment of the city of New York for raising money to defray the cost of extending Seventh avenue and widening Variek street is illegal, but there is not a particle of evidence that such scheme is unfair, that the percentage assessed by way of special benefit is greater than should justly be borne by the property within the special assessment district, or that the percentage of the cost assessed on each three boroughs is in fact excessive or unequal, the complaint should be dismissed upon the merits.</p> <p>It was entirely proper for said board in determining whether the improvements should be made to consider the availability of Seventh avenue as a subway route and that the city would be relieved of the expense of acquiring, easements for subway purposes.</p> <p>The assessment upon the boroughs made for the purpose of preventing an increase of the city indebtedness through the issuance of corporate stock was simply a means of raising money to be included in the annual budget each year and collected in the form of taxes from the city at large; so that whether the city borrowed the money and thereafter collected it in the form of a tax, or simply raised it in the first instance by taxation, the legal effect is the same.</p> <p>In answer to the claim that the investigation made with regard to benefits was- largely theoretical and not based on actual benefits, it must be assumed, in the absence of evidence showing that the scheme operated unfairly or oppressively, that it was adopted after fair and impartial consideration and with due regard for the legal rights of all affected thereby.</p> <p>A contention that chapter 679 of the Laws of 1911 and the scheme of assessment based thereon are unconstitutional, resting mainly on the distinction to be observed between an assessment which is levied for a benefit received and a tax imposed to meet the necessary cost of carrying on city government, is untenable.</p> <p>The fact that the principle of apportionment may be based in part upon the assessed valuation of the property in the several boroughs and that the property assessed for special benefit will also be compelled to pay the borough tax does not render the scheme of assessment open to constitutional objection.</p>

<p>Action for libel. Motion to set aside verdict.</p>

<p>Action for settlement of account of testamentary trustees.</p>

<p>Negotiable instruments — bills, notes and checks — action on check — interpleader.</p> <p>On the day that a cheek for $805.23 was drawn by the city of New York to the order of a lighting corporation as payment under a contract, the vice-president of the corporation, who was its general manager and active business head, brought the cheek duly certified by the bank on which it was drawn to plaintiff’s office and stated that he needed immediate funds for a business trip on a business matter in which plaintiff knew the corporation was engaged and from which they expected to benefit through supplying materials which the corporation commonly needed in carrying out its contracts, and after indorsing the check in blank, employing the corporation’s rubber stamp to affix its corporate seal, asked plaintiffs to deduct $700 due them from the corporation and give him the balance in cash, which they did. Others interested in the corporation learned of its receipt of the check and warned the drawee not to pay to any indorsee of the vice-president. In an action on the cheek the defendant bank interpleaded the corporation payee. Held, that the circumstances were such as fairly to put plaintiffs on inquiry and subject their rights of reimbursement to any defects arising from facts which reasonable inquiry would have disclosed.</p> <p>That the interpleader defendant had no rights at all respecting at least $700' of the moneys and that plaintiffs were entitled to reimbursement from the fund accordingly, as full inquiry by them before cashing the cheek would have disclosed that the vice-president’s authority to borrow funds and indorse said check had but ten days before been upheld in the Supreme Court.</p>