Volume 86 — New York Miscellaneous Reports

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 before the court and a jury.

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

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

Appeal by the plaintiff from a judgment of the City Court of the city of New York dismissing the complaint, with costs, upon motion of the defendant’s attorney made after the plaintiff’s attorney had opened his case to the jury, but before any evidence was offered.

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

Appeal by the defendant from a judgment of the City Court of the city of New York in favor of the plaintiff for $1,500 damages, besides costs, entered upon a verdict.

Appeal by the defendant from an order of the Municipal Court of the city of New York, borough of Manhattan, third district, denying a motion to remove a cause from the third district to the first district of Manhattan.

<p>Appeal from a final order of the Municipal Court of the city of New York, borough of Manhattan, first district, dismissing a summary proceeding to recover the store, basement and sub-basement of 358 Broadway, New York city, because of non-payment of rent, entered on a verdict.</p>

Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, third district, in favor of plaintiff for $402 damages, besides costs, entered upon the overruling of a demurrer following defendant’s failure to plead over, as the interlocutory judgment permitted it to do.

Appeal by defendants from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, entered after a trial before a judge without a jury.

Appeal by a landlord from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, in favor of the tenant after a trial by a judge without a jury.

Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, second district, dismissing the complaint at the close of plaintiff’s case upon a trial by a judge and jury.

Appeal Tby plaintiff from a judgment of the Municipal Court of the city of New York,' borough of Manhattan, second district, dismissing the complaint at the close of the case, after a trial by a judge and jury.

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

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

Appeal by defendant Thulstrup, from an order set-' ting aside the verdict of a jury in her favor in the Municipal Court of the city of New York, borough of Manhattan, fifth district.

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

Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, in favor of défendant, after a trial by a judge and jury, dismissing the complaint at the close of plaintiff’s case.

<p>Appeal by plaintiff from an order of the City Court of the city of New York, setting aside a verdict of a jury in favor of plaintiff, and dismissing the complaint upon the reservation of a motion to that effect made during the trial.</p>

<p>Sales — action for purchase price of goods sold and delivered — acceptance of part of goods constitutes acceptance of whole — contracts — custom — when court will not take judicial notice of.</p> <p>Where plaintiffs, upon a single order and on one bill including all the items, sold and delivered to defendant several lots of clothing all at one time, there is a whole and indivisible contract and an acceptance of a part of the goods constitutes an acceptance of the whole.</p> <p>Where in an action for the purchase price of the goods it appears that defendant, while retaining the major portion, returned one entire lot and a part of items out of every lot upon a claim that they were not as agreed, a judgment in his favor entered on a verdict will be reversed.</p> <p>The court may not take judicial notice of a custom of trade that parts of a single shipment may be returned if they do not conform to the agreement of the parties, because it would contravene an established rule of law.</p>

<p>Appeal — in action for damages for being ejected from street car—• evidence as to receipt and tender of valid transfer — when judgment dismissing complaint reversed.</p> <p>Where in an action for damages for being ejected from a street railway car there is ample evidence that plaintiff had received and tendered a valid transfer, and, even assuming that such transfer was invalid, his own testimony showed that he had not been afforded a reasonable opportunity to pay his fare, a judgment dismissing the complaint at the close of plaintiff’s case will be reversed, and a new trial ordered, with costs to appellant to abide the event.</p>

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

<p>Appeal by plaintiff from a judgment of the City Court of the city of New York, in favor of defendant, entered after a trial by a judge without a jury.</p>

<p>Insurance (fire)—proceeds of insurance impressed with equitable lien in favor of mortgagees where trustee in bankruptcy insures buildings of bankrupt — action by receiver to recover insurance money — bankruptcy.</p> <p>Where a receiver in bankruptcy insures buildings on the mortgaged property of the alleged bankrupt, and a loss by fire is adjusted and paid before the appointment and qualification of the receiver as trustee in bankruptcy, the proceeds of the insurance are impressed with an equitable lien in favor of the mortgagees of the property as their interest may appear.</p> <p>In an action brought by the receiver to recover the insurance money which was held to await final judgment in said action, upon a claim that he was entitled thereto as trustee for the benefit of the general creditors of the bankrupt estate, his motion for judgment on the pleadings will be denied.</p>

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

<p>Liquor Tax Law — when liquor tax certificate should not he issued.</p> <p>A liquor tax certificate should not be issued except on an application correct in form and which complies with the statute.</p> <p>Where an application for a liquor tax certificate, having attached thereto only three consents, stated that there were but five buildings within 300 feet of the proposed saloon whereas there were nine buildings within such distance, the liquor tax certificate issued on such application is invalid and void, and the complaint in an action to recover a penalty on the certificate holder’s liquor tax bond will be dismissed.</p>

<p>Navigable waters — right of state to make grants of land under — where certain grants of lands were made and given “for the purpose of promoting the "commerce of our state and for no other object or purpose ” — action brought by people to vacate and annul said grants — pleading.</p> <p>The right of the state to make grants of land under navigable water has been sanctioned by a line of authorities from the earliest times down to the present date.</p> <p>Where certain grants of land under navigable waters were made and given “ for the purpose of promoting the commerce of our said state or for the beneficial enjoyment by the adjacent owner and for no other object or purpose whatsoever,” with reservation to the people of the right to enter upon and use the premises so granted “ until the same shall have been actually appropriated and applied to the purposes of commerce or for the beneficial enjoyment of the same by the adjacent owner by erecting a dock or docks thereon,” and other like grants were made “ for the purpose of promoting the commerce of our said state and for no other object or purpose whatsoever,” a complaint brought by the people of the state through its attorney-general to vacate and annul said grants to the rights under which defendant had succeeded, which alleges: “ That in violation of the terms and conditions upon which said letters patent and each of them were issued as aforesaid, said defendant or its predecessors have unlawfully erected and maintained upon each and every one of the said portions of land under water described in the said letters patent, respectively, factory buildings and structures, six, eight and ten stories high, and numerous other factory structures from one to four stories high, and ever since the said 17th day of February, 1905, the defendant has unlawfully occupied, used and maintained and now unlawfully occupies, uses and maintains the said buildings and structures in its private business of sugar refining; and the said defendant and its predecessors have otherwise omitted to perform the conditions under which the said patents were isssued,” but contains no allegations concerning the failure to build docks, and there is no restrictive or prohibitory clauses in the grants concerning the erection of buildings or improvements, the complaint is demurrable on the ground that it does not state facts sufficient to constitute a cause of action and a motion by plaintiff for judgment on the pleadings must be denied.</p>

<p>Contracts — terms of, with city of New York for final disposal of ashes, etc.— when contractor entitled to equitable relief.</p> <p>Where by the terms of a contract with the city of New York for the final disposal of ashes, rubbish, etc., the contractor is not prohibited from using dumping scows, he is entitled to equitable relief restraining the commissioner of street cleaning from abrogating the contract upon the sole ground that in loading dumping scows the pickers under an incidental contract cannot so thoroughly do their work as in the ease of deck scows.</p>

<p>Habeas corpus — proceeding by, to determine whether judge conducting trial is a de facto judge or not — appointee of governor held to be de facto judge.</p> <p>Whether a judge conducting the trial of a cause is a de facta judge or not may be determined in habeas corpus proceedings.</p> <p>The appointee of the governor as judge of the County Court of Kings county held to be a de facto judge without regard to whether the constitutional amendment adopted in 1913 vested in the executive the power of immediately appointing two additional county judges, or postponed their selection until chosen by the electors in 1915.</p>

<p>City of New York—Greater New York Charter, § 1543.</p> <p>A chief inspector in charge of the Brooklyn division of the old building or inspection bureau of the tenement house department of the city of New York does not come within the provision of section 1543 of the city charter which declares that the “ head of the bureau ” shall not be removed until he has been given an opportunity of “ making an explanation,” and his summary removal without a hearing and in conformity with the provisions of the charter is legal.</p>

<p>Demurrer to separate defenses.</p>

<p>Motioh to vacate an order for examination before trial of defendant Smith.</p>

<p>Actioít for the construction of a """ill.</p>

<p>Marriage — action for annulment — when marriage held valid — when separation agreement held to he valid and subsisting contracts.</p> <p>Where in an action to annul a marriage upon the theory that it was void ab initio, and to compel the defendant to return certain property obtained by her through deeds and separation agreements, .it appears that at the time of the marriage the defendant, a widow without means, had for several years been living as the mistress of another, and that prior to the marriage plaintiff and defendant had entered into meretricious relations, he having been fully informed by her of the character of the life she was leading, and shortly after their marriage, during a serious illness, plaintiff not only transferred valuable real and personal property to defendant but made a will in her favor, the marriage will be held valid and the separation agreements held to be valid and subsisting contracts.</p>

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

<p>Mortgages — purchase of existing mortgage — enforcement of — purchaser in good faith relying on mortgagee’s representations — when mortgagor estopped from claiming that mortgage had no inception in hands of mortgagee — usury.</p> <p>The purchase in good faith of an. existing mortgage at a discount is not violative of the statute against usury.</p> <p>But where the mortgagee had advanced nothing he cannot enforce his mortgage, which is therefore not the subject of sale, and a transfer of it at such a discount as would with the interest payable by its terms exceed the legal interest violates the usury statute.</p> <p>As against a purchaser in good faith relying on the mortgagee’s representations that a second mortgage was a valid one; the mortgagor is estopped to the extent of the money actually paid from claiming that the mortgage had no inception in the hands of the mortgagee. .</p>

<p>Action for a money judgment arising upon a deficiency in the foreclosure of a chattel mortgage.</p>

<p>Summary proceeding for the removal of tenant.</p>

<p>Action to recover damages for wrongful ejection.</p>

Motions on the part of plaintiffs to strike from the answers of the defendants certain parts thereof, as irrelevant and redundant.

Motion to compel the referees heretofore appointed under the judgment in this action to repair or rebuild, etc., the bridge.s over the canals, conduits and raceways on Lake, Main and River streets in the city of Ogdensbnrg.

<p>Demurrer to complaint.</p>

<p>Games and gaming — sale of small “ banks ” numbered consecutively and prize offered to promote trade —scheme held illegal.</p> <p>Plaintiff, a retail dealer in dry goods, to promote trade, offered for sale at twenty-five cents each certain small “ banks ” numbered consecutively from 500 to 999. A record was kept of the nam§ of each purchaser of a bank as sold and each day the name of some one purchaser was selected or drawn by plaintiff and the number of the bank corresponding to such name was displayed in the window of plaintiff’s store, one for each day. Then or thereafter the person whose number was thus displayed might select merchandise from plaintiff’s stock of goods of the retail value of one dollar and each purchaser’s number would sooner or later be displayed and each would sometime become entitled to select goods of the same value. Held, that the inequality in the value of the dollar’s worth of merchandise being dependent upon the chance of present or future selection was enough to characterize the scheme as illegal and to withhold from it the protection of a • court of equity.</p>

<p>Actions to enforce the constitutional and statutory-liability of defendants as stockholders for debts of the corporation.</p>

<p>City of Dunkirk — provisions of charter, § 154 — legislature has power to direct apportionment of cost for street improvement upon abutting lots.</p> <p>It is within the power of the legislature to direct the ap- ■ portionment of the entire cost of a street improvement upon abutting, lots according to frontage without judicial inquiry as to their value or the benefits they receive, and this does not constitute a taking of property without due process of law.</p> <p>The charter of the city of Dunkirk, section 154, provides that the. cost and expense of sewer construction “ shall be charged upon and collected from the property adjoining the street • * “ pro rata, share and share alike, in proportion to the number of feet each owner has of frontage on that portion of the street through which such sewer is laid, subject, however, to the provisions herein contained.” Then follow provisions exempting lots previously assessed for sewers in “ intersecting ” streets for a distance of not more than 100 feet back. It then provides that after making such exceptions the cost shall be “ borne pro rata * * “ by the number of remaining feet of foot frontage upon each and every block.” The assessors are then to spread the assessment upon the property benefited by such sewer “ as liable under the provisions of this title to be charged with the cost and expense of its construction in a just and equitable manner, and in accordance with the rules prescribed in this title.” Held, that the assessors had no power or authority to substitute their own judgment and discretion as to the property benefited beyond the rule prescribed in said section.</p> <p>After the completion of a sewer in and along Central avenue in the'city of Dunkirk, and the cost thereof had been ascertained, the board of assessors adopted a resolution to the effect that 793 feet of the sewer north of the line of a certain street was of no benefit to the abutting property owners and, therefore, the total cost of the improvement should be assessed on the abutting property owners south of the tracks of a certain railway company, the railroad company and the city as assessed on the Central avenue sewer assessment roll. Said resolution was based on the fact that a sewer constructed in 1883 already existed in the street in front of the 793 feet in question and that the building of the new sewer parallel to and beside it in the opinion of the assessors conferred no benefit on the property abutting on that portion of Central avenue. The assessment was spread accordingly and an action was brought to set the same aside upon the ground inter alia that the method of assessment adopted was in violation of the plain and explicit directions of the charter. Held, that the assessment must be set aside because, as made, plaintiffs’ property had been made to bear a greater burden of taxation than could be legally imposed; that they were assessed for a portion of the cost of the sewer which the legislature had declared should be borne by other owners.</p>

<p>Railroads — duty to fence right of way — agreement between railroad and adjoining owner does not affect claim for damages by third party ignorant of such agreement.</p> <p>The statutory duty of a railroad company to fence its right of way is an absolute one, and while any covenant or agreement made with an adjoining owner would be a defense as to him it is not as to third persons not claiming under him.</p> <p>Plaintiff’s horses straying from his pasture proceeded along the public highway on to the farm of another and from a field thereon went upon the unfenced right of way of defendant, a railroad company, where one was killed and another injured by one of its trains. Held, that an agreement between the railroad company and an adjoining owner that the railroad should not be required to fence its right of way could not affect a claim for damages by plaintiff who was ignorant of any such agreement.</p>

<p>Savings banks — opening of account by father in name of infant son or himself —. action by general guardian to recover from bank the amount of the deposit — Banking Law, § 250(2).</p> <p>Where a savings bank account, opened by a father in the name of his infant son or himself, was payable to either or the survivor of them, the executor of the father having possession of the pass-book will be granted an order substituting him, as such executor, as the defendant in an action by" the general guardian of the infant to recover from the bank the amount of the deposit.</p> <p>Under section 250(2) of the Banking Law, the moneys in controversy will be allowed to remain in bank to the credit of the action until final judgment, and the amount with interest paid in accordance therewith.</p>

<p>Trade-marks — action for alleged infringement of — dismissal of complaint where plaintiff unable to make proof of damages.</p> <p>Where plaintiff for many years has manufactured cigars known under the name of “ B. & M. ” and defendants have for several years used “ P. & M,”, the initials of their individual names, to designate cigars' made by them and sold in a territory where plaintiff’s cigars have not been sold, and it does not appear that any one has been induced to purchase defendant’s cigars when he intended to purchase those of plaintiff, and plaintiff states that it is unable to make proof of damage, its complaint in an action for alleged infringement of trade-mark will be dismissed. .</p>

Issue of fact tried at Special Term. The plaintiff, asa taxpayer, brings this suit to enjoin the defendants, as town officials .of the town of Southampton, from proceeding with the widening of a highway known as the Old Mill road.

<p>Action for the construction of a deed of lands under water.</p>

Action for an accounting. The plaintiff, a corporation, prior to the year 1910, entered into more than 350 contracts with various owners of real property situated in the counties of Greene, Ulster, Schoharie and Delaware, wherein and whereby this plaintiff agreed with the said owners to take whatever proceedings were necessary to represent the said owners, for the purpose of obtaining an award or compensation for the taking or sale of said property, or any part thereof, and…

<p>Action by an executor to obtain possession of the remains of deceased for removal and reinterment.</p>

<p>Action by a trustee in bankruptcy.</p>

<p>Motion to confirm report of commissioners of estimate and report of commissioner of assessment.</p>

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

<p>Contempt —. what constitutes —■ corporations — Code of Civil Procedure, § 1241.</p> <p>Both at common law and under section 1241 of the Code of Civil Procedure the court may punish as a contempt any act which is designed to and does defeat and circumvent its mandate, even when the letter of the decree has been executed.</p> <p>Where at the same time that a judgment of the Supreme Court, directing the cancellation of certain corporate stock issued to two of the defendants herein, was in form complied with, its effect was completely nullified by the reissuance of a part of the same stock to the attorneys of said defendants for services which, while nominally in part rendered to the corporation, were in fact entirely on behalf of said defendants personally in an unlawful attempt to uphold and avoid the consequences of a wrongful act committed by them against the interest of the corporation, thus again depriving plaintiff in the judgment of his position as holder of the majority stock of the corporation, it will be held that instead of cancelling the stock as directed they transferred it to their attorneys in disobedience of the decree of the court and for the purpose of defeating and nullifying it, and such action constitutes a contempt.</p> <p>The said defendants and their attorneys adjudged guilty of a contempt of court and directed to forthwith deliver up for cancellation and to cancel said stock so issued and to stand committed until such cancellation be effected, and fined $250 for which sum they are held jointly and severally liable.</p>

<p>Action by plaintiff to establish her right to a certain deposit in the Seamen’s Bank for Savings.</p>

<p>Action upon a lease to recover rent.</p>

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

<p>Motion to set aside a verdict and for a new trial.</p>

<p>Personal Property Law, § 65 — meaning of words “retaken by the vendee” — purchase of motor cycle by minor — what constitutes refusal to deliver on demand — meaning of “ retake.”</p> <p>The words “ retaken by the vendor ” in section 65 o£ the Personal Property Law should be fairly held to include those cases in which possession is resumed under a contract of conditional sale.</p> <p>Plaintiff, a minor, bought a motor cycle of defendant under a contract of conditional sale. Pursuant to an agreement with plaintiff’s parents to send for the machine, repair it and sell it on plaintiff’s account when the next season opened, defendants sent for and obtained the machine. In response to plaintiff’s demand for the machine, defendants stated that it was not paid for and plaintiff could not have it. In an action brought un "’er section 65 of the Personal Property Law to recover the amount of payments made on the purchase price of the machine which was still in the possession of defendants, held:</p> <p>That defendants did not “ retake ” the machine within the meaning of the statute, but that it was in their possession under a special agreement with plaintiff’s parents.</p> <p>That defendants had a right to show how and under what circumstances they had taken the machine.</p> <p>That defendants’ refusal to deliver the machine to plaintiff on demand constituted a “ retaking ” under the contract of sale and also under the statute, and more than sixty days having elapsed prior to the commencement of the action plaintiff was entitled to judgment for the full amount claimed.</p>

<p>Motion by defendant-to dissolve temporary injunc- " tion.</p>

<p>Injunctions — reservation of way of necessity — grantor cannot claim a way of necessity over lands not granted by him nor over lands of a stranger — acquisition of way by prescription — what constitutes hostile acts — action to restrain railroad corporation from constructing fences — Bailroad Law, § 83 — highways.</p> <p>Where a grantor has other land to which he may have access only by passing over land already conveyed by him to a railroad corporation, a way of necessity is reserved in the grant.</p> <p>This rule of law, however, applies only where the burden is apparent, continuous and strictly necessary for the enjoyment of land retained by the grantor.</p> <p>A grantor cannot claim a way of necessity over lands not granted by him, nor over the lands of a stranger.</p> <p>To acquire a way by prescription against a railroad company over its right of way situate in country districts, there should be most distinctive acts indicating hostile use under a claim of right for the required period, and such acts should be sufficient to notify the railroad company of the use and the claim of right or some direct and positive notice.</p> <p>The evidence in actions brought to restrain the defendant, a railroad corporation, from constructing fences between plaintiff’s lands and those of defendant, whereby, as alleged, plaintiff’s rights of way over lands of defendant are obstructed, considered, and held, notwithstanding the provision of section 83 of the Railroad Law, that “ no person other than those connected with or employed upon the railroad shall walk upon or along its track or tracks, except where the same shall be laid across or along streets or highways, in which case he shall not walk upon the track unless necessary to cross the same,” plaintiff had-failed to establish her right to the ways in question within well settled principles of law applicable to the facts.</p>

<p>Contracts — what constitutes consideration for new contract — written instruments for payment of money—■ pleading.</p> <p>Pleading — contents of complaint in action upon bond — demurrer.</p> <p>Performance of an act by one under legal obligation to perform cannot constitute a consideration for a new contract.</p> <p>A written instrument for the payment of money imports a consideration, and the defense of lack of consideration must be pleaded by answer; it cannot be raised by demurrer.</p> <p>Upon the performance of work done by defendant in the construction of a highway, part of which ran through a village, the state, after accepting the work, refused to pay therefor unless defendant would guaranty to keep that portion lying within the village in good condition and repair for one year. The complaint, in an action upon the bond, contained no allegation of any contract duty resting upon defendant to maintain the road in repair, or of any vested right in either the state or the village to exact such a requirement as a condition precedent to payment for the work already done. Held, that the complaint was demurrable on the ground that no cause of action was stated.</p>

This is an action to recover damages for breach of covenants for quiet enjoyment, freedom from encumbrances and warranty of title in a deed of conveyance of a farm, in that, on the property there existed, by grant, an easement to take the water of a spring by a covered conduit.

<p>Motion to set aside a verdict and for a new trial.</p>

<p>Divorce — right of trial by jury of issue of adultery—pleading — bill of particulars — appeal.</p> <p>The right to a trial by jury of ihe issue of adultery is a constitutional right</p> <p>Rule 31 of the General Rules of Practice, which provides that “ In all actions where either party is entitled to have an issue or issues of fact settled for trial by a jury, either as a matter of right or by leave of the court, if either party desires such a trial, the party must, within twenty days after issue joined, give notice of motion that all the issues or one or more specific issues be so tried. If such motion is not made within such time, the right to a trial by jury is waived,” does not give a party to a divorce action a reasonable time within which to assert his constitutional right that the question arising upon the issue of adultery be stated for trial by a jury.</p> <p>The answer in an action for divorce joining issue on the charge of adultery was served January 5, 1914. A motion to change the place for trial was denied on the third of February. On the ninth of February an order to show cause why a bill of particulars should not be furnished by plaintiff was served and an order for a bill of particulars was made February twenty-third. On appeal such order was modified and affirmed May 14, 1914, and the bill of particulars was furnished five days later. Held, that a motion thereafter made for an order directing that the question arising upon the issue of adultery be stated for trial by a jury should be granted.</p> <p>That rule 31 of the General Rules of Practice was unauthorized so far as it was an attempt to limit the constitutional right to a trial by jury of an issue of adultery in an action for divorce by prescribing a mode of waiver not included within section 1009 of the Code of Civil Procedure.</p>

<p>Supervisors — when appropriation of money is unauthorized — appropriation of money by supervisors of Warren county for centennial celebration — General Municipal Law, § 51 — payment of illegal claims.</p> <p>The appropriation of money in aid of the centennial celebration in the county of Warren by its board of supervisors was unauthorized though made without wrong intent.</p> <p>Following a resolution of said board of supervisors appropriating $5,000 for said celebration, the county treasurer opened an account “ Centennial Celebration, Warren County,” in which was placed said sum. There was also placed in the account $585.57, received in payment for illustrations in the centennial souvenir book, which amount was disbursed to the defendant publishing company for the expenses of the same publication. A further sum of $578 received from various sources was put into the account and with the county moneys was disbursed for various purposes connected with the celebration. In a taxpayer’s action to recover from defendant publishing company the sum of $660 paid to it from said account, there was no way of identifying a dollar from the $5,000 as distinguished from a dollar from the $578 or the $585.57, that eight-ninths of the $660 paid to the publishing company were county funds and that plaintiff was entitled to judgment against defendant publishing company and the county treasurer of Warren county as defendants in the sum of $586.66.</p> <p>Section 51 of the General Municipal Law provides that a taxpayer’s action to prevent waste or injury to or to restore and make good any property, funds or estate of such county may be brought against officers, agents, commissioners and other persons acting for the municipality and against a person who has been paid an illegal claim with county funds and retains the same.</p> <p>That defendants who were members of the centennial committee were in no sense agents or commissioners of or persons acting for the county, and the fact that two of them acted for the printing committee as sub-committee of the celebration committee and made an agreement with the defendant publishing company to print and distribute souvenir books did not bring them within the statute or render them liable.</p>

<p>Municipal corporations — Railroad Law, § 98 — provisions of street railway franchise — provisions of city charter as to portion of expense of paving street surface railway assessed upon said railway — action of common council directing collection of assessment does not invalidate assessment.</p> <p>The provision of section 98 of the Railroad Law, that every street railroad shall keep in repair the pavement between its tracks, is to be construed as meaning between the tracks as they are ordinarily laid down in a double track trolley system.</p> <p>Where, however, a street railway franchise provided for the erection and maintenance of a single line of centre trolley poles, and cars cannot be conveniently and safely operated without a space between them of about seven feet and ten inches between the tracks, the company is obligated to pave the entire space, as concededly the tracks are where they must be in order to safely operate the railway for which the franchise provided.</p> <p>Where a city charter provides that the portion of the expense of a street improvement assessed upon a street surface railway or property shall be repaid to the city in such annual installments, including proper interest due or to become due on bonds issued for the cost of the improvement, in each and every year, as the common council may fix, the city, though it may assess in one amount the whole cost of the railway company’s part of the street, can only require payment therefor by installments.</p> <p>The action of the common council in directing the immediate collection of the assessment against the railway company in one payment did not invalidate the assessment nor give the company the right to maintain an action to set aside the assessment.</p>

<p>Ejectment — evidence in action for—■ when entitled to judgment for immediate possession.</p> <p>The evidence in an action of ejectment brought by the town of North Hempstead, to recover lands in Mott’s Cove, Hemp-stead harbor, Nassau county, below high water mark, considered, and held, that it was the fee owner of the premises in question, that it had never allotted or parted with its title thereto and was entitled to judgment for the immediate possession thereof.</p>

<p>Motions by the defendants Tefft, Reeves and Carpenter, and the defendant' William H. Nash, respectively, for judgment on the pleadings.</p>

• Motion for a reargument of the motion to confirm the referee’s report and to send back such report to the referee for further proceedings.

<p>Condemnation proceedings — award of specific sum to “ unknown owners” clearly erroneous—'motion to divide money among abutting owners.</p> <p>An award in a condemnation proceeding of substantial damages to “ unknown owners ” is clearly erroneous, but if not set aside a motion by the abutting owners to divide the money by paying, the owner of the fee the sum of one dollar and dividing the remainder equally among themselves will be granted.</p>

<p>Liquor Tax Law — proceeding to revoke liquor tax certificate may not tie instituted after excise year.</p> <p>A proceeding to revoke and cancel a liquor tax certificate may not be instituted after the expiration of the excise year.*</p>

<p>Corporations — provisions of section 91a of General Corporation Law as to jurisdiction of Supreme Court — action against a single guilty director without joining codirectors.</p> <p>Section 91-a of the General Corporation Law, which provides that “ The supreme court shall also have and exercise juris dietion in equity at the suit of a corporation, or of a receiver, or trustee in bankruptcy thereof, to compel one or more trustees, directors, managers, or other officers of the corporation to account for injury to or losses of the funds, assets or property of the corporation, caused by or through any neglect or failure of the defendants to perform, or for violation of their duties,” authorizes an action against a single guilty director without joining his codirectors.</p> <p>The effect of said section -91-a is to do away with the distinction between strict actions for an accounting of property actually received and for wrongful acts, and to authorize a single comprehensive action in equity in which the directors or officers of a corporation may be called to account for all of their acts while in office, whether the said acts consisted of actual misappropriation of funds or were negligence or neglect of duty resulting in damage.</p> <p>Said section 91-a applies to foreign corporations.</p>

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

<p>Motion by defendants for extra allowance.</p>

<p>■ Motion by defendant asking that judgment entered against him be vacated and set aside or that said judgment be modified or amended.</p>

<p>Action to adjudge plaintiffs’ rights in certain real estate and for equitable relief.</p>

<p>Motion in proceedings supplementary to execution to punish defendant for contempt of court.</p>

<p>Jurisdiction — when court not deprived of — to hear and determine a motion for new trial on the minutes pending appeal.</p> <p>Insurance* (life) — provisions contained in policy of — action upon policy — contention that all premiums had been paid — evidence — Insurance Law, § 92.</p> <p>The pendency of an appeal from a judgment entered upon a verdict does not deprive the court of jurisdiction to hear and determine a motion by defendant for a new trial upon the minutes.</p> <p>A policy of life insurance issued by defendant to plaintiff’s husband provided for the payment of semi-annual premiums. The initial premium was paid on or about March 31, 1908, at which time the policy was delivered. The insured died February 14, 1910, and proofs of death furnished to defendant were rejected upon the ground that the policy had lapsed and been forfeited. In an action on said policy defendant contended that nothing was paid thereon after the initial premium and that the statutory notice was given before September 30, 1908, when the premium became due. - Plaintiff contended that all the premiums had been paid and that no notice had been given for the payment of the premium which fell due September 30, 1908. There was sufficient evidence to justify the submission of both questions to the jury and no claim was made by defendant that any notice was sent to the insured subsequently to the notice of the premium due September 30, 1908. Held, that as two years had not expired after the premium of September 30, 1908, fell due before this action was brought, the action was timely, and a charge to the jury that if they should find that such notice was not given and should also find that only the initial premium was paid, the plaintiff would be entitled to recover, and refusal to charge that, assuming that the statutory notice was not sent, if the insured failed to pay the premium due September 30, 1908, and the subsequent premiums, the policy was lapsed and the plaintiff could not recover, to which, ruling the counsel for the defendant excepted, is correct, and a motion by defendant for a new trial on the minutes, after the taking of an appeal from a judgment ■in favor of plaintiff entered on a verdict, will be denied.</p> <p>Section 92 of the Insurance Law, relating to forfeitures of policies "of life insurance and prohibiting same without notice, construed.</p>

<p>Partition — actions in — application for distribution of proceeds of sale — docketing of judgments against defendants — sheriff’s certificate of sale subject to right of redemption — when execution purchaser entitled to have lien satisfied in full—Code Civ. Pro. §§ 1561-1566.</p> <p>Sections 1561-1566 of the Code of Civil Procedure, relating to partition actions, contemplate that where the existence of liens shall he ascertained and reported to the court, with their date, the final determination as to priority of one over the other shall be made upon an application for a distribution of the proceeds of the sale.</p> <p>About a month after a judgment had been docketed against defendant two other judgments were docketed against him on the same day. About six years thereafter defendant acquired by inheritance an undivided one-third interest in certain lands located .in the county wherein said judgments were docketed, and several-years later defendant’s interest in-the property was sold under an execution issued upon the first judgment, the purchaser receiving a sheriff’s certificate of sale. Pursuant to the judgment in an action of partition, commenced after the issuance of said execution but before the sale thereunder, the property was sold and defendant’s share of the proceeds was paid into court. Shortly after the execution sale thq owner of the other judgments died and the partition action proceeded without amendment, MS'" executors not having been substituted or made parties thereto. The purchaser at the execution sale voluntarily appeared in the partition suit, made proof of his claim and the final judgment provided that the moneys derived from the defendant’s one-third interest should be considered as real estate and paid into court as belonging to the holder of the sheriff’s certificate of sale subject to the right of redemption of defendant, and the further right of redemption of the owner of the unsatisfied judgments. On application for distribution of the proceeds of sale, held:</p> <p>That the above mentioned provision of the judgment was contrary to the provisions of sections 1561-1566 of the Code of Civil Procedure, and was properly ignored.</p> <p>That the purchaser at the execution sale became a substituted lienor in place of the judgment creditor and was entitled to whatever rights it had in the land by virtue of its judgment.</p> <p>That the partition sale placed the property beyond the reach of the purchaser at the execution sale and his right then became simply one to share in the proceeds to the extent of his bid, which right was not lost to him because of the expiration before the partition sale of ten years from the docketing of the judgment under which he claimed; neither did it vest in him the entire proceeds as might have been the case if his purchase had been consummated by the expiration of the redemption period and the delivery to him of the sheriff’s deed.</p> <p>That the lien arising out of the judgment under which the execution purchaser claimed having been • diverted from the real estate of defendant to its proceeds, and the same being insufficient for the payment in full of the three judgments which attached to the land simultaneously, the execution purchaser was entitled to have his lien satisfied in full and the balance of the proceeds directed to be paid to the executors of the owner of the other judgments.</p>

<p>Mandamus — application for writ of — contracts between corporations for supplying water to town of North Hempstead, Nassau county — when application for, denied—greater New York charter — city of New York.</p> <p>The legislature by sections 471, 472 and 1618 of the Greater New York Charter and chapters 724 and 725 of the Laws of 1905, chapter 314 of the Laws of 1906, and chapter 438 of the Laws of .1907, intended to vest in the city of New York full authority and power to make a contract to procure by purchase or otherwise additional water supply for temporary and emergency use.</p> <p>A contract between relator, a corporation organized under the Transportation Corporations Law, for the purpose of supplying water to the town of North Hempstead, Nassau county, and the city of New York, for the delivery by relator into the mains of said city in the vicinity of its pumping station No. 1, in the first ward of the borough of Queens, of a certain amount of water as specified and provided, is not a contract within the meaning and intent of section 85 of the Transportation Corporations Law, and there was no right to or necessity for the filing by relator thereafter of an amended certificate wherein it recited that relator had entered into a contract with the city of New York, and the filing of said amended certificate could not confer upon relator any further or additional franchises or rights.</p> <p>An application by relator for a peremptory writ of mandamus directed to the president of the borough of Queens, requiring him to issue a permit to open certain streets in the first ward thereof, for the purpose of laying pipes and mains for delivering and distributing water to the city of New York and the inhabitants of the borough of Queens, denied.</p>

<p>Constitutional law — provisions as to vote of majority of electors — holding special elections — provisions necessary under the statute — taxpayer’s action — elections.</p> <p>The Constitution having provided that a vote of a majority of electors is a prerequisite to the holding of a constitutional convention, the legislature may not prescribe a different test by which the question whether or not such convention should be held should be determined, and the returns of the election inspectors are not final and conclusive.</p> <p>Chapter 819 of the Laws of 1913, providing for the holding of a special election on April 7, 1914, and which declares that “ If the majority of the electors voting on such question are shown to have voted in the affirmative upon such question, as shall appear from the returns .of the county board of canvassers and by its canvass of such returns, such convention shall be held, and shall be deemed called thereby and delegates therefor shall be elected as provided in section 2 of article 4 of the Constitution,” read in connection and construed with said constitutional provision does not prescribe any different test by which to determine whether the convention shall be held than that prescribed by the Constitution.</p> <p>Under said constitutional provision and under the statute it is necessary in order that such convention shall be held that the majority of the electors voting on the question shall have voted in the affirmative, and the statute in this respect in no way offends against the constitutional provision.</p> <p>If it can be shown that the majority of the electors voting were opposed to the calling of the convention, and that such majority was, by fraudulent means, converted into a minority on the face of the returns, it is the duty of the Supreme Court, there being no adequate remedy at law, to intervene so as to give effect to the constitutional provision, and the fact that the power to grant relief in such ease is not conferred in express terms is immaterial where it plainly arises by necessary implication.</p> <p>Whether or not a majority of electors voting did vote in favor of the proposition to hold a constitutional convention or against it is a question of fact, and presents a judicial and not a political question.</p> <p>Whether the proposition to hold the constitutional convention shall be submitted to the people and whether that proposition shah be supported or opposed present for determination questions of a political nature with which the judicial branch of the government has no concern.</p> <p>A citizen and a taxpayer may with propriety bring an action to give effect to said constitutional provision, where the attorney-general does not, and said action may be brought in the first judicial district.</p> <p>Chapter 819 of the Laws of 1913 does not violate section 4 of article 2 of the Constitution which provides that: “Laws shall be made for ascertaining, by proper proofs, the citizens who shall be entitled to the right of suffrage hereby established, and for the registration of voters, which registration shall be completed at least ten days before each election.”</p> <p>It appearing that a clear majority throughout the state of the electors voted in favor of the proposition that a constitutional convention should he held, an injunction pendente lite restraining the boards of election and election officials from taking steps preliminary to the nomination and election of delegates to said constitutional convention will be denied.</p>