Volume 87 — New York Miscellaneous Reports

<p>City of Lockport — meaning of “ streets ” as used in section 223 of charter — assessment against abutting owner for entire expense of constructing sidewalk — petition for improvement — when assessment set aside.</p> <p>The term “streets,” as used in section 223 of the charter of the city of Lockport which declares that certain named streets are determined to be a public necessity as main thoroughfares leading into the city, refers to the roadway set apart for vehicles, and does not include sidewalks.</p> <p>An assessment against the abutting owner for the entire expense of the construction of a sidewalk in front of premises abutting on the south side of the state road in said city between South Transit street and the city line, and named in said section 223 of the charter, is legal and proper.</p> <p>The petition for the improvement called for a four-foot “ cement sidewalk,” the committee to whom the petition was referred reported in favor of a four-foot sidewalk and directed the city engineer to prepare plans and specifications and the city clerk to draw an ordinance therefor. The common council adopted the report, but the ordinance as prepared and adopted called for a “ four-foot concrete walk.” The assessor reported local assessment for “ four-foot concrete walk.” On the hearing on the assessment the clerk called the matter up by referring to the assessment as “for a cement walk,” and the assessment as confirmed was referred to as one “ for a cement walk.” The appellant appeared at the hearing on the assessment and objected that he should only have been assessed for one-half of the expense of the walk in front of his premises under said section 223 of the charter, but raised no question relative to the petition being for a cement walk and the ordinance for a concrete walk.</p> <p>Held, that appellant was not injured by the difference in the description and the assessment should not be set aside in the absence.of proof of injury to appellant.</p>

<p>Summary proceedings — joinder of issue in — pleading — landlord and tenant — Code Civ. Pro., §§ 3151, 3152.</p> <p>Where before joinder of issue in summary proceedings against a tenant for holding over without permission of his landlord after the expiration of his term, the tenant, under sections 3151, 3152 of the Code of Civil Procedure, files his affidavit setting forth that the justice before whom the proceeding is pending is a material witness for him without whose testimony he cannot safely proceed to trial, and also setting forth the particular facts and circumstances which the tenant expects to prove by the justice, and the justice entered on the record a statement that he disregarded said affidavit and proceeded with the cause, a final order of removal awarding the landlord possession of the premises will be reversed.</p> <p>The fact that after the presentation of the affidavit the tenant files an answer does-not deprive him of the exception taken by him to the refusal of the justice to comply with the provision of section 3151 of the Code of Civil Procedure directing the proceeding to be continued before another justice of the same town or city named in the order of transfer.</p>

<p>Motion to vacate an order for examination of judgment debtor in proceedings supplemental to execution.</p>

Motion by defendants to change place of trial from Cayuga county to New York county, on the ground that the plaintiff and the defendants who have been served are all residents of New York county.

<p>Judgments — requirement that assignment of judgment shall he filed — motion to set aside order when granted — charging judgment debtor with constructive notice of record — Code Civ. Pro., §§ rayo, 2446.</p> <p>The law does not require that an assignment of a judgment shall be filed.</p> <p>The fact that section 1270 of the Code of Civil Procedure requires the county clerk to make a record of the assignment of a judgment when filed does not charge the judgment debtor with constructive notice of said record.</p> <p>Plaintiff, after a judgment recovered against defendant had been docketed, assigned the same to his attorney. Subject to said assignment, which was recorded, plaintiff two years thereafter assigned to D, a purchaser in good faith and for a valuable consideration, all his interest in the judgment and said assignment was also recorded. Subsequently an order was granted under section 2446 of the Code of Civil Procedure permitting defendant as judgment debtor of plaintiff to pay to the sheriff the amount of a prior judgment against plaintiff, together with interest and sheriff’s fees, and by a subsequent order the sheriff was directed to apply the amount so received from defendant on the judgment against plaintiff. No notice was ever given to plaintiff as judgment debtor nor to the two assignees of the judgment recovered against defendant. Held, that a motion to set aside the orders granted under said section 2446 should be denied.</p>

This is a proceeding for an order revoking and cancelling a liquor tax. certificate, begun after the term of the certificate had expired. The certificate was issued October 1, 1912, and expired September 30, 1913. The petition and order to show cause were served, or are alleged to have been served, upon John Jacobs by the delivery of a copy of the same upon one Floyd Persette, a person said to be in charge of the premises, on the first day of May, 1914.

Action for the construction of a will and for the judicial settlement of the accounts of plaintiff as administrator with the will annexed of the same.

<p>Action under section 491 of the Penal Law to recover forfeited cash bail.</p>

<p>Venue — where laid — motion for change of venue in action for libel — when motion denied as matter of discretion — Code Civ. Pro., § 987(2).</p> <p>All the facts appearing upon the hearing of defendant’s motion, in an action for libel, for a change of venue under section 987(2) of the Code of Civil Procedure, which provides that the court may change the place of trial “where there is reason to believe.that an impartial trial cannot be had in the proper county,” considered,” and the motion denied as matter of discretion on the ground that the court was not convinced that “ an impartial trial cannot be had ” in the county of plaintiffs residence where the venue was laid.</p>

<p>Injunctions — when violation of city ordinance will not be restrained — municipal corporations.</p> <p>The violation of a city ordinance making smoking in street cars unlawful will not be restrained by injunction.</p>

<p>Infants — actions brought on behalf of — court will not direct payment of proceeds to general guardian appointed by surrogate without bond — Code Civ. Pro., § 2650.</p> <p>Upon the settlement of an action brought on behalf of an infant, the court will not direct payment of the proceeds, less attorney’s fees, to the infant’s general guardian appointed by the surrogate without bond pursuant to section 2650 of • the Code of Civil Procedure which took effect September 1, 1914.</p> <p>In such ease, the court on approving the settlement will direct the proceeds to be turned over to the guardian to be administered by her under the direction of the Supreme Court upon giving a satisfactory bond, to be approved by the justice," in twice the amount of the sum received, or will direct the proceeds to be paid into court.</p>

<p>Insolvency — judgments — reduction of claims to — claims rejected as contingent and not provable — when claims under consideration regarded as contingent because not reduced to judgment prior to commencement of insolvency proceedings — when rejection of claims not matured sustained — when motions in behalf of claimants for permission to prosecute claims to judgment will be granted.</p> <p>Claims of subcontractors, materialmen and laborers arising under certain bonds executed for their benefit by an insurance company as surety, pursuant to an act of congress approved February 24, 1905, under contracts awarded to the United States government for the construction of public work were filed with the state superintendent of insurance as liquidator of a surety company and were rejected and disallowed as contingent and not provable, upon the ground that at the date of the entry of the order of liquidation said claims had not been reduced to judgment. Said claims were divided into two general classes, those arising out of contracts which had not been completed prior to the entry of the order of liquidation and those arising out of contracts which, prior to such date, ■ had been completed and final settlement authorized by the government authorities, but upon which no judgment had been entered. The latter class was subdivided into claims upon which suits had been brought prior to the date of the order of liquidation some of which are still pending, the others having matured into judgments, those upon which actions have since been brought and those in which no suit has been yet commenced. Held, that in the absence of an express holding by the Court of Appeals (211 N. Y. 107) that claims of the nature of those under consideration are to be regarded as contingent because not reduced to judgments prior to the commencement of the insolvency proceeding, it will not be presumed that the court intended to exclude such claims from sharing in the distribution of the insolvent estate when the conditions precedent of procuring judgments upon the claims have been met.</p> <p>That all the claims that have been reduced to judgments are to be treated as valid and provable and their rejection will be set aside and overruled.</p> <p>The rejection of claims that have not matured in judgments will be sustained.</p> <p>That motions made in behalf of claimants whose claims have not been reduced to judgment for permission to prosecute them to judgment will be granted.</p>

<p>Motion by defendant for direction of a verdict.</p>

<p>Actions brought to require the execution of assignments of two patents.</p>

<p>Landlord and tenant — action for rent — when counterclaim for damages dismissed — evidence.</p> <p>Where a landlord is under no obligation to make repairs, and in an action for rent there is no evidence that, prior to the day the goods of the tenant who occupied one of four stores on the' ground floor of the building were damaged, a leader of sufficient size to carry away any. water from the building was defective, nor was anything shown as to the condition of said leader and an area way running entirely across the end of the building and for the use of all the tenants of the stores equivalent to notice or to charge plaintiff with an unreasonable omission to ascertain the condition thereof, a counterclaim for damages sustained in consequence of water which came upon the floor of the demised premises from the area way should be dismissed.</p>

<p>Action of ejectment.</p>

<p>Application to vacate a taxation of costs.</p>

<p>Election Law, § 56 — compliance with — printing official ballots and inspection of same — when motion to restrain board of elections from printing candidate’s name upon ballot denied.</p> <p>An official ballot should be printed and subject to inspection and ready for use a long enough time before election day to enable candidates and voters to see that it complies with the law.</p> <p>Where the official ballot furnished by the tenth congressional district did not comply with the statute in that after the first ten names the entire ticket was improperly and irregularly numbered, but there is no claim that any one has been deceived nor any evidence that any person voted for the one nominated as the candidate for congress of the National Progressive party, who did not intend so to do, or that any person failed to vote against him because of the misnumbering of the names, and it appears that the official ballot was not printed and delivered until the day of voting, irregularity is not so vital as to render the entire election of the entire Progressive party in said district or elsewhere void, and a motion under section 56 of the Election Law to restrain the board of elections from printing said congressional candidate’s name upon the ballots on election day on the ground that the vote east for him at the official primary election was void will be denied.</p>

Application by the city of New York for an order appointing commissioners of estimate and assessment for the legal opening of Montague street.

<p>Motion by assignee for benefit of .creditors for the approval by the court of his sale of real estate.</p>

<p>Trusts — in personal property — creation of beneficial interest in relatives.</p> <p>Where a trust in personal property containing no clause reserving the power of revocation is insufficient to create a beneficial interest in the relatives of the settlor who would be her heirs at law and next of kin if she were to die, the instrument creates no beneficial interest in any other person than the settlor.</p>

<p>Divorce — separation from bed and board superseded by judgment for absolute divorce — motion to punish defendant for non-payment of alimony how far granted — foreign decree of divorce.</p> <p>A judgment of separation from bed and board granted to a wife in this state on March 15, 1912, is superseded by a judgment of absolute divorce granted in the state of Massachusetts on December 4,1912, in favor of the defendant husband, and a motion by the plaintiff! in the separation action to punish defendant for non-payment of alimony pursuant to an order in the action will he granted, but only to the extent of the amount of money found to be due at the time of the entry of the foreign decree of divorce.</p>

<p>New trial — in action to recover sum .of money — submission to jury — when motion for new trial denied — Code Civ. Pro., § ggg.</p> <p>Principal and agent — principal bound by agent’s acts — authority given to agent to do certain acts.</p> <p>Where, in an action to recover a certain sum as advance royalties under written agreements whereby defendant promised to produce on the terms and conditions and for the compensation therein set forth certain motion pictures based on two certain copyrighted dramas belonging to plaintiff, the court dismissed the complaint upon the ground that it affirmatively-appears from the testimony of plaintiff’s attorney, who was also its vice-president, that he failed to prove that the attorney for defendant had authority to pay a certain sum for the discontinuance of a temporary injunction obtained by plaintiff against defendant, and no such proof of the agency of defendant’s attorney to make such promise or that it was ever ratified by defendant was presented to enable the court to submit the question involved to the jury, a motion for a new trial under section 999 of the Code of Civil Procedure will be denied.</p> <p>While a principal is bound by his agent’s acts when he justifies a party dealing with his agent and believing that he has given to the agent authority to do those acts, he is responsible only for that appearance of authority thus caused by himself and not for that appearance of conformity to the authority which is caused only by the agent.</p>

<p>Pleading — allegations contained in complaint — when complaint properly dismissed — when motion for new trial denied.</p> <p>Where the complaint in an action on a written order on defendant, and accepted, to pay to plaintiff, a creditor of the drawer, a certain sum due for work to be done under contract and to deduct the amount from the last payment thereunder, fails to allege, or the plaintiff fails to prove on the trial, that the work to be done under the contract was completed and that the amount called for by the order was due, the complaint is properly dismissed, and a motion for a new trial will be denied.</p>

<p>Action by employee to recover for personal injuries under a foreign statute.</p>

<p>Actions — allegations of complaint—failure to state good cause of action — dismissal of complaint — appeal.</p> <p>A complaint alleging that plaintiff was injured by the care- , less operation of an automobile owned by defendant and ope-</p> <p>• rated by a chauffeur, naming him, but which omits to allege that he was the servant of defendant, fails to state a good cause of action; and an order denying defendant’s motion for judgment on the pleadings and for a dismissal of the complaint will be reversed and the complaint dismissed.</p>

Appeal by the plaintiff from an order of the City Court of the city of New York, denying a motion made by him for an order sustaining a demurrer to the defendant’s defense and to the counterclaim set up in the answer.

<p>Appeal by the plaintiff from an order of the City Court of the city of New York setting aside a verdict of the jury and ordering a new trial.</p>

<p>Appeal from a judgment dismissing plaintiff’s complaint, rendered by the Municipal Court of the city of New York, borough of Brooklyn, fifth district, on the 12th day of May, 1914.</p> <p>The action was brought to enforce a mechanic’s lien. The property was situated in the borough of The Bronx, but the action was brought in the borough of Brooklyn.</p> <p>The action was brought on for trial on the 12th day of May, 1914, when the defendants moved to dismiss the complaint on the ground that the court was without jurisdiction because the action should have been brought in the borough of The Bronx, and because it was not begun by the service of a verified complaint, as required by section 46 of the Lien Law. The motion was granted and the pl-aintiff appeals.</p>

<p>Negligence — when owner of building not liable for injuries to pedestrian — carelessness of contractor who places obstructions in street.</p> <p>Where a contractor solely for his own convenience, in connection with the erection of a building, placed a donkey engine in the street from which a cable ran over the sidewalk into the building for hoisting material for mason work, and usually at night the cable was relaxed and laid on the sidewalk and covered with sand, the owner of the building is not liable for injuries to a pedestrian who tripped over the cable at night.</p> <p>Kelly, J. dissents.</p>

<p>Evidence — when books of account of physician competent — identity of books of account — inadmissible to prove value of services — Code Civ. Pro., § 829.</p> <p>Where it becomes necessary for a party to identify his books of account and to testify that he kept no clerk and that his custom was to make entries therein in the usual course of business, with regularity, such testimony should not be regarded as circumventing section 829 of the Code of Civil Procedure; standing alone such testimony proves nothing, and is but preliminary to the more important testimony of persons who settle their accounts with him by his books.</p> <p>In the case of a physician, the books should show visits to patients, regularly entered in the course of professional duties; their total number furnishes a basis for proof by other physicians of value according to the accustomed charges of the locality, and when coupled with independent evidence that some of the visits were actually made and that other patients had settled their accounts with the physician from his books, the entries of his visits or attendance upon them therein stated being correct and true, a physician’s book of visits is then open for the inspection of the court, and, if found free from suspicion and sufficiently orderly to convey intelligence upon perusal, becomes competent evidence of the visits before the court or jury as the case may be.</p> <p>To make the persons who it is claimed had settled their accounts with the physicians competent witnesses, they must testify that they settled their accounts by his books and not by bills rendered to them.</p> <p>In an action by a physician to recover for professional services rendered to defendants’ testator, the evidence of plaintiff as to having an account with decedent in his books; that it was a true transcript of the transactions between him and decedent and that the account was never paid, was erroneously received as plaintiff was incompetent to prove the same.</p> <p>His testimony also as to the entry which he made in his books as to the bills sent to the estate of decedent was inadmissible to prove the value of his services.</p>

<p>Motion for security for costs on the ground that since the commencement of this action plaintiff has ceased to be a resident of the county of Nassau.</p>

<p>Action to foreclose three mortgages.</p>

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

<p>Action for an injunction to restrain the obstruction of a ditch.</p>

<p>Taxpayer’s action — who has a right to bring — city of Rochester — when no rights of citizens or taxpayers violated — when awarding contract not restrained.</p> <p>The adoption of specifications for a patent pavement does not prevent competitive bidding.</p> <p>Where the entire proceeding, from the petition presented to the common council of the city of Rochester signed by a majority of the property owners residing on one of its streets that it might be paved with bitulithie, a patented article, down through the various steps taken by the city authorities, was regular in every way, and the rights of no citizen or taxpayer were violated, and the principle of competitive bidding was preserved, the awarding of the contract to the lowest bidder will not be restrained on the ground that the common council has no power to pass an ordinance for a pavement of the kind indicated in the proposed contract, there being nothing in the city charter which prohibits the authorities from using bitulithie pavement for a street improvement.</p> <p>Plaintiff having submitted its proposition for a different pavement than that desired by the property owners was not in a position to complain because its bid was rejected as being informal, but, nevertheless, as a taxpayer it had a right to bring the action.</p>

<p>Motion by a referee for instruction.</p>

<p>Referee — fees of — in what amount entitled for making sale in foreclosure where property brought only small sum over prior incumbrances.</p> <p>Where property sold under the final judgment in foreclosure of a junior mortgage only brought a hundred dollars over prior incumbrances, the referee is only entitled to fees to the amount of nine dollars plus his expenses for making the sale.</p>

<p>Accounting — action for — relation between stockbroker and customer fiduciary — when injunction granted — damages.</p> <p>The relation between a firm of stockbrokers and a customer is fiduciary, and in an action by the latter for an accounting the burden is upon defendants to show that their trust duties have been performed and the manner of their performance.</p> <p>Where, in an action for an accounting brought by a customer of a firm of stockbrokers, certain alleged usages and customs pleaded by defendants in their answer do not. meet plaintiff’s allegations that they have used his collateral securities which were of unique and peculiar value to him, in making loans with banks and others, pledging them in amounts in excess of the amounts due from plaintiff and making secret profits therefrom by obtaining certain rates of interest on bank loans but concealing the fact from plaintiff and charging him a different rate of interest, and plaintiff merely seeking to ascertain the true condition oí his account prays for general relief and asks for injunctive relief as incidental thereto, the court will grant an injunction even though it does not appear that there is anything due plaintiff since he is entitled to know whether anything is due.</p> <p>The rule that plaintiff must show that defendants are insolvent has no application, and the question whether an action for damages if defendants sell plaintiff’s stock deposited as collateral security is adequate cannot arise for the reason that there is no remedy at law.</p>

Appeal by defendant Van Bees, from an order of the City Court of the city of New York, directing judgment for plaintiff on the pleadings.

Appeal by the plaintiff from an order of the City Court of the city of New York, overruling a demurrer of the plaintiff to certain defenses set up in the answer.

Appeal by the plaintiff from an order of the Special Term of the City Court of the city of New York denying plaintiff’s motion to vacate and set aside an ex parte order for examination of plaintiff before trial.

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

Appeal by defendant from a judgment of the City Court of the city of New York in favor of plaintiff upon his second cause of action, entered upon a directed verdict, and dismissing plaintiff’s third cause of action for failure of proof.

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

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

<p>Appeal from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fourth district, rendered in favor of the plaintiff for $117.75, after a trial without a jury.</p>

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

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 defendants, after a trial by the court without a jury.

<p>Appeal by the defendant Chieffo from a judgment rendered in the Municipal Court of the city of New York, borough of Manhattan, seventh district, in favor of the plaintiff, and also from an order amending said judgment by declaring that the defendant is liable to . arrest and imprisonment.</p>

Appeal by the plaintiff from an order of the Municipal Court, second district, borough of the Bronx, granting a new trial on the ground of newly discovered evidence.

<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 by default, and also from an order denying a motion to open a default.</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 of the plaintiff.

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

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

<p>Agricultural Law — violation of section 40 — failure of restaurant keeper to post signs reading “ Oleomargarine used here.”</p> <p>A restaurant keeper who uses or serves any oleaginous substitute for butter and who fails to post signs reading “ Oleomargarine used here” violates section 40 of the Agricultural Law, even though such words were printed, upon, his bill of . fare. . .</p>

Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, third district, dismissing plaintiff’s complaint, with costs.

Appeal by the defendant from an order of the Municipal Court of the city of New York, borough of Manhattan, seventh district, denying a motion to open his default, and bringing up for review an order denying his motion for an order of interpleader.

<p>Foreclosure — application to modify judgment in — mortgages — when motion to strike out provision for payment denied.</p> <p>It cannot be held, before an accounting, that the use and occupation of mortgaged premises by the mortgagee is payment of the interest on the mortgage, and an application to modify the judgment in foreclosure by striking out the provision thereof for the payment of interest must be denied.</p>

<p>Liquor Tax Law — section 17, as amended — application for liquor tax certificate — prohibition of traffic in liquor when not restricted — certiorari to review action of county treasurer in refusing to issue liquor tax certificate — when refusal sustained.</p> <p>Under section 17 of the Liquor Tax Law as amended in 1910 the county treasurer in deciding whether or not “ traffic in liquor is prohibited at such premises by virtue of the provisions of subdivision 9 of section 8” is not restricted to the statement made in an application for a liquor tax certificate.</p> <p>A statement in an application for a liquor tax certificate that the premises are situated in the city of Corning and that they have been continuously occupied for trafficking in liquors since 1898 brings the premises squarely within the exemption to the prohibition contained in said section 17.</p> <p>On certiorari to review the action of the county treasurer in refusing to issue a subdivision 1 liquor tax certificate for the excise year 1913-1914 to relator whose hotel in the city of Corning is so situated that the boundary line between the city and the town of Corning runs through the hotel building, it appeared that at such time as the town had authorized the traffic in liquors relator had applied for and received a liquor tax certificate to traffic in liquors at said hotel in the town of Corning and at such times as the town had been “ dry ” he had received a certificate for traffic in liquors at the same hotel in the city of Corning. The bar of the hotel stood on the town side or the city side of the hotel as relator was authorized to' traffic in liquor in the town or the city. For two years prior to October 1, 1913, relator had a subdivision 1 liquor tax certificate to traffic in liquors at said hotel in the town of Corning, and had no certificate to traffic in liquors in the city of Corning during the excise year 1913-1914. The town in November, 1913, having voted in the negative on all excise questions, his application for a liquor tax certificate to traffic in liquors in the city of Corning made in September, 1913, was denied by the county treasurer. Held, that as relator had had no certificate which authorized him to traffic in liquors in the city of Corning for more than a year prior to June 15, 1919, the refusal of the county treasurer to issue a liquor tax certificate for said hotel in the city of Coming for the excise year 1914-1915 will be sustained.</p>

<p>Taxes — Village Law, § 3 — when no error is committed in excluding assessed valuation upon “ special franchises.”</p> <p>Section 3 of the Village Law, relating to the incorporation of villages, provides: “ The said consent shall be signed by owners of real property situated within such territory constituting one-third in value thereof, as assessed upon the last preceding town assessment roll.” Held, that while apparently the words “ real property” as used in the Tax Law mean both land and its appurtenances, and also “ special franchises,” a supervisor of a town, in rendering a decision in favor of a proposition to incorporate a village, commits no error in excluding the assessed valuation upon the “ special franchises ” within the territory of the proposed village.</p>

<p>Supplementary proceedings — judgment debtor expending money after service of order — contempt.</p> <p>Where it is made to appear that a judgment debtor engaged in conducting a farm of several hundred acres upon which he kept and maintained fifty-five dairy cows, had the assistance of several servants, and that while an injunction in supplementary proceedings was in force he expended the sum of $130 in payment for groceries, wages of employees and made payment upon a chattel mortgage on a team of horses, he is guilty of a contempt as for a disobedience of the injunction order.</p>

<p>Bailroads— right to use street crossing—viaduct—limitation on right to cross streets — revocation.</p> <p>Public nuisance — obstruction of street.</p> <p>Contracts — with municipality for maintenance of viaduct — validity of statute proving contract — legislative power — delegation of.</p> <p>Where by resolution of the common council of a city a railroad company is granted permission to construct its road across city streets “ subject to the future control and pleasure of the ■ common council * * * with respect to said crossings,” there is no reserved right in the council to require the construction or maintenance of such a viaduct as the modern development of the city may make necessary.</p> <p>The right conferred on a railroad corporation organized under chapter 140 of the Laws of 1850 to construct its tracks across a city street with the assent of the city by vote of the common council is subject to no limitations imposed by the city and not prescribed in the statute, at least to no limitation not imposed by the city as a condition to the original giving of its assent.</p> <p>The right of such a railroad company to construct its tracks across a city street, subject to the assent of the common council, becomes absolute when such assent is given and cannot be revoked by the city.</p> <p>It is only such obstructions of a street by the construction of a railroad crossing as are unnecessary to the exercise of the public easement that constitute a public nuisance.</p> <p>Where a statute grants to a railroad company the right to construct its tracks across a city street subject to the city’s assent thereto, on condition that it replace the street in such manner as not to impair unnecessarily its usefulness,_ the legislature may subsequently impose further conditions upon the company as a condition to the exercise of the right theretofore granted; but the city cannot thereafter compel the company to maintain a viaduct over its tracks.</p> <p>A railroad is a public highway and the legislature may equitably adjust between a railroad company and a city the expense of bringing about a normal condition from one impairing the safety of the traveling public on the street which it crosses; therefore chapter 345 of the Laws of 1888, as amended by chapter 353 of the Laws of 1892, which provides “ for the relief of the city of Buffalo and to change and ■ regulate the crossing and occupation of the streets * * * by railroads ” is valid.</p> <p>A contract between a railroad company, whose predecessor was incorporated under chapter 140 of the Laws of 1850, and the city of Buffalo, obligating the latter for the repair and maintenance of a viaduct at a railroad crossing, which was ratified by chapter 358 of the Laws of 1911, is not void for want of consideration where the statute compelled the railroad company to eliminate the grade crossing and pay its proper share of the cost thereof.</p> <p>A contract between a railroad company organized under chapter 140 of the Laws of 1850 and the city of Buffalo which relieves the company from maintaining a viaduct at a crossing adds no burden not already imposed by law on the city, though the franchise of the company binds it to maintain the crossing so as not to interfere unnecessarily with its usefulness, and no invalidity of the contract entitles the city to compel the railroad company to maintain the viaduct.</p> <p>The legislature having authorized the making of such contract relieving the railroad company of the expense of maintaining a viaduct' at a crossing, such contract cannot be declared contrary to public policy.</p> <p>The statute (Laws of 1911, chap. 358, § 15), approving contracts made by the grade crossing commissioners of the city of Buffalo with railroad companies, is not invalid as contracting the police power of the state, though such contract so approved purported to relieve a railroad company from the burden of maintaining a viaduct.</p>

<p>Action upon a contract.</p>

<p>Summary proceedings — granting final order in — landlord and tenant — withdrawal of consent to termination of lease.</p> <p>Where the day after the final order of removal in summary proceedings awarding a landlord possession of the premises was granted he began an action to recover rent including that for the month in which said order was granted, he must be deemed to have waived the statutory proceedings and to have withdrawn his consent to the termination of the lease and reaffirmed it; and the tenant by joining issue consented to the litigation of the continued existence of the lease, and the necessary effect of a judgment in favor of plaintiff was to adjudicate defendant’s right .to continued possession of the premises under the lease, and as a consequence to the continued obligation to pay rent for the premises for the period of the lease.</p>

<p>Negotiable instruments — promissory notes — action by bank against indorser — evidence — Code Civ. Pro., § 829.</p> <p>A promissory nóte made by G to the order of K was indorsed by plaintiff and delivered to the payee who indorsed and discounted it at a bank. The note not having been paid at maturity, the bank brought an action against plaintiff as indorser, but before collection thereof the demand of the bank was paid by K and the judgment assigned to him. In an action by the indorser against K the complaint alleged that the note was made and indorsed partly for the accommodation of K and that he should not be permitted to enforce the judgment against plaintiff. Held, that the maker of the note though not a party to the action was “ interested in the event ” within the meaning of section 829 of the Code of Civil Procedure and was incompetent to testify to personal transactions between himself and K who had died during the pendency of the present suit.</p>

<p>Wills — devise of certain real estate — meaning of word “ children.”</p> <p>The words “ child ” or “ children ” when used in a will are to be taken to refer only to issue or descendants of the first degree.</p> <p>Where a will, after a devise of certain real estate to each of testator’s sons and the gift to them in equal shares of the residuary estate, declares that in the event of the death of any before testatrix the share so given to him should be given to his children, if such there were, and “ if there are no children then such shall be equally divided among my surviving children,” and there is nothing in the will to indicate that the word “ children ” includes grandchildren, they are not so included.</p>

<p>Towns — when meetings of town board should be held in town — when writ of peremptory mandamus may issue — acts of town board in appointing inspectors of election.</p> <p>The meetings of a town board should be held within the town except in the special cases otherwise provided by statute.</p> <p>The acts of a town board in appointing inspectors of election at a meeting held in an adjoining town are coram ■ non judice, and a writ of peremptory mandamus may issue at the instance of one of the town officers who attended and participated in the proceedings, requiring the town board to meet in their own town and revoke such appointment and appoint other and qualified inspectors of election.</p>

<p>Action to impress certain moneys with, a verbal trust.</p>

<p>Motion to require plaintiff’s attorneys to receive an unverified answer of defendant Charles M. Kellogg.</p>

<p>Contracts — action on — agreement in writing as to income of trust fund — who entitled to enforce — when claim not barred by decree of Surrogate’s Court — pleading.</p> <p>A complaint alleged that on June 16, 1894, A and B were-holding a trust fund and paying the income to C during his lifetime, as required by the will of D, which had given each of them a one-half interest in the fund, subject to C’s life interest, which ownership in common they had by contract changed to a joint ownership; that A was the father of plaintiff who at that time was an infant; that on said date for a valuable consideration passing between them A and B agreed in writing that from and after the death of C the income from the fund should be paid to plaintiff during his life; that A died in 1904; that C died in 1908; that on January 10, 1909, B, in writing, ordered the depository of the fund to pay until further notice from him the income accrued and to accrue on the fund after C’s death to plaintiff’s guardian; that plaintiff had received all such income except that which accrued on January 1, 1914; that B died in November, 1910, leaving a will which has been probated; that the executor thereof has accounted and has been discharged; that defendant in Hay, 1914, as residuary legatee under the will of B, took possession of said- fund-and has refused to pay over the income which accrued on January 1, 1914, and refuses to pay over to plaintiff the income which may hereafter accrue; that said fund is now invested, etc. Held, that plaintiff was entitled to enforce the contract against defendant. •</p> <p>That plaintiff’s claim was not barred by a decree of the Surrogate’s Court settling the account of the executrix of B and directing that all assets and property whatsoever belonging to his estate be delivered to the defendant in this action.</p> <p>A claim that there was a defect of parties defendant in that (a) personal representatives of B are not made defendants; (b) the executrix of his estate is not made a defendant, and (c) the former depository of the fund is not made a defendant, is without merit, as the agreement of June 16, 1894, did not charge any duties as to the fund upon any of those persons and the fund is now in the sole possession of the defendant.</p>

<p>Towns — right of town officer to employ assistant — at expense of the town.</p> <p>A town officer has no right to employ an assistant at the expense of the town to do any part of the work which devolves upon him by virtue of his office and for which he is compensated as such town officer; nor has the town board a right to employ any person at the expense of the town to do the work of any town officer.</p>

<p>Demurrer to complaint.</p>

<p>Demtjbbeb to complaint.</p>

<p>Trade names — when used in connection with established trade — assignee for benefit of creditors not restrained from selling right to use trade name — what is good will of business.</p> <p>A name used in connection with an established trade is an asset equally with the good will of the business, and, in fact, is inseparable from it.</p> <p>Where plaintiff, a corporation, became possessed of the name of “ Julius Bien ” with the good will and assets of a business by virtue of an instrument of transfer from another ' corporation, which imported an absolute sale, the assignee for the benefit of creditors of the first corporation will not be restrained by injunction from selling as a part of the assigned estate the right to use the name “ Julius Bien.”</p> <p>To sell such name in connection with the good will of plaintiff’s business does not work a loss of its franchise or its destruction as a corporation, and it will not be restrained from using the name in such manner as may interfere with the rights of a purchaser upon a proposed sale.</p>

<p>Taxpayer’s action.</p>

<p>Motion to set aside an order for examination before trial of two defendants.</p>

<p>Civil service — Power of commission of New York to pass on fitness of candidates — removal of name from eligible list not arbitrary — when motion for writ of mandamus denied.</p> <p>The power of the civil service commission of the city of New York to pass upon the fitness of candidates includes fitness of character as well as mental efficiency.</p> <p>After relator had passed a civil service examination and after his name had been placed on the eligible list for the position of court attendant it was stricken therefrom by order of the civil service commission for reasons which developed from an examination into his character. While the civil service commission gave no special reasons for their action their decision was greatly influenced by questionable business transactions between relator and one of his associates which resulted in a law suit and by stipulation ended in a judgment for money had and received which was never paid and which relator included in his schedule in bankruptcy. Held, that the judgment was not binding on the civil service commission to the extent of precluding them from examining into the evidence produced, the relator having admitted that the judgment was not on the merits.</p> <p>That the removal of relator’s name from the eligible list was not arbitrary and that his motion for a peremptory writ of mandamus to restore his name to said list should be denied.</p>

<p>Contracts — meaning of section 889a of Greater New York Charter.</p> <p>The excavation of a plot of land is not the commencement of a building to be erected thereon, nor of the construction thereof, within the meaning of section 889a of the Greater New York Charter enacted in 1913 which provides that a building in course of. construction, commenced since October 1, 1912, and not ready for occupancy, shall not be assessed.</p>

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

<p>Attachment — against property of foreign corporation — when annulled — undertaking — action on — when surety on undertaking not discharged — Code Civ. Pro. § 688.</p> <p>An attachment against the property of a foreign corporation was discharged upon its giving an undertaking under section 688 of the Code of Civil Procedure conditioned that it would, on demand, pay to the plaintiff the amount of any judgment recovered by him in the action. A judgment for the dismissal of the complaint was reversed and the entry of judgment absolute for plaintiff was directed. In an action upon the undertaking, the judgment in favor of plaintiff not having been paid, held, that though the entry of judgment for defendant at the trial, there having been no stay of proceedings, irrevocably annulled the attachment so that it could not be revived by the reversal of said judgment on appeal, it did not discharge the bond of the surety on the undertaking, and that defendant was liable thereon.</p>

<p>Highways — liability of abutting owners for change of grade — right of commissioners to ascertain compensation to he made for taking land for highway purposes — Code Civ. Pro., § 3371.</p> <p>The state is liable only to an abutting owner for a change of grade of a highway by virtue of some statute.</p> <p>The report of commissioners to ascertain compensation to be made for the taking of real estate for state highway purposes, so far as an award therein for consequential damages depending upon a change of the grade of a state highway, should be set aside, but the court at Special Term cannot make such determination, as under section 3371 of the Code of Civil Procedure the court is without power to strike out part of an award and confirm the report as modified, but the report will be set aside and a rehearing directed before the same commissioners with instructions to make no award or appraisal of damage by reason of the change of the grade of the highway in front of defendant’s premises.</p>

<p>Action to have special franchise forfeited for nonuser and defendants restrained from exercising any rights or privileges thereunder.</p>

<p>Habeas corpus — when writ of, may not be used — indictment — refusal to plead — when relator not entitled to be discharged — jurisdiction of County Court.</p> <p>The writ of habeas corpus may not be used as a writ of error.</p> <p>Upon relator’s trial for manslaughter in the first degree the jury disagreed and he was held for a second trial. The district attorney, without an order or direction of the County Court which had jurisdiction of the indictment, presented the same homicide to another grand jury which indicted relator for murder in the first degree and subsequently by order of the County Court the indictment for manslaughter was dismissed. Relator, upon arraignment, refused to plead to the indictment for murder, a plea of not guilty was entered for him by order of the County Court, and he was committed for trial. On habeas corpus to inquire into the cause of his detention he traversed the return alleging that his imprisonment under the murder indictment was illegal for the reason that he could not be tried for the crime therein charged or upon the indictment so returned, because such trial would be in violation of his constitutional right that he should not be subject to be twice put in jeopardy for the same offense. Held, that relator was not entitled to be discharged upon habeas corpus by a justice of the Supreme Court, but that orderly procedure required him to apply to the County Court to quash the indictment for murder and for his discharge from imprisonment.</p>

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

<p>Applications for writs of peremptory mandamus.</p>

<p>Action for the annulment of a marriage upon the ground of fraud.</p>

<p>Motion to vacate and set aside the above entitled proceedings.</p>

<p>City of New York — opening and widening streets in — difference in values of lands along line of streets affected — appointment of commissioners — Greater New York Charter, § 992 — when grantors entitled to exemption from assessment — no power in court, corpor ration counsel or commissioner of assessment to treat deed as embracing more than explicitly described therein by metes and bounds.</p> <p>The making of an existing street wider and straighten is very-much like opening an entirely new street, and in the absence of exceptional features justice is done by charging to the property in each block the cost of acquiring the land in that block.</p> <p>While in some eases where the land differs greatly in value along the length of the street affected the method of taking the entire expense of the improvement and the entire length of the street as a single proposition and making a single computation resulting in a uniform front-foot assessment, thereby throwing upon the cheaper property a part of the expense of the awards for the more valuable property, should be followed; the instant case held to present no exceptional features which would justify a departure from the “block by block” method of assessment.</p> <p>Where, prior to the appointment of commissioners in a proceeding to widen a street in the city of New York, certain abutting owners delivered deeds of conveyance of their land to the corporation counsel who subsequently found on examination that the title conveyed fulfilled the requirement of section 992 of the Greater New York Charter, the grantors are entitled to the exemption from assessment provided by said section.</p> <p>The words of said section 992 “ owners of the land and of all the estate therein embraced,” read in connection with the subsequent language of said section providing the same shall be free from incumbrances inconsistent with the title to be acquired by the city, do not exclude from the benefits of the statute owners who thus conveyed to the city strips of land over which there was a former street easement.</p> <p>Where, assuming that the commissioner of assessment was right in following the “ block by block ” method in making the assessments, the injury to the objecting owners was very trifling because most of the cessions were made in blocks in which they owned no property, yet, even if the result was to somewhat mererse the burdens of the objecting owners, it was within the constitutional taxing powers of the legislature to enact said section 992.</p> <p>The decision of the commissioner of assessment imposing the whole cost of the buildings taken in the proceeding upon the blocks in which those buildings stood will not be disturbed by the court.</p> <p>Where in a deed to the city the specific description running from a designated point on the street intended to be widened to another designated point thereon did not extend far enough along the street to include all the land within the lines of the proposed street owned by the grantor, and the deed declares the intention of the grantor to convey all lands in said street ■ and all the estate therein that it may own, there was no power under section 992 of said charter either in the commissioner of assessment or in the corporation counsel to treat - the deed as embracing anything more than was explicitly described therein by metes and bounds, and there was no power in the court, on motion to confirm the report of the commissioners, to so treat the deed.</p>

<p>Insurance (life) — what included in terras of policy when married woman insures life of her husband for her sole use — liability of insured in his schedules in bankruptcy — when claim of exemption allowed — what rights passed to trustee in bankruptcy.</p> <p>Section 52 of the Domestic Relations Law, which is a substantial re-enactment of Laws of 1840, chapter 80, making it lawful for a married woman, for her sole use, to insure the life of her husband, includes within its terms insurance negotiated by him and made payable to the wife as well as insurance which she herself placed upon his life.</p> <p>While chapter 80 of the Laws of 1840 as amended was in force a twenty-year semi-tontine policy of insurance on the life of a husband was issued to his wife upon an application signed by him in her name, which policy provided that in case she predeceased him payment of the insurance money should be made to the personal representatives of the husband, and, further, that upon completion of the tontine dividend period he should have, without her consent, the option to withdraw in cash the accumulated surplus leaving the policy participating and full paid for its face, or, if he was in good health, to apply said surplus to the purchase of a non-forfeitable participating paid-up addition to the face of the policy, or, without proof of good health, to apply said surplus to purchase an annuity or to surrender the policy and receive therefor in cash its entire share of assets. Thereafter the husband in his own name signed an application for insurance with the same company and a policy in which the wife was named as beneficiary was issued which provided that if no beneficiary should survive the insured then payment of the policy should be made to the personal representatives of the deceased, and, further, that the insured might change the beneficiary at any time by filing a written request therefor duly acknowledged and accompanied by the policy. The insured on handing the policies to his wife stated that they were her property and that she should hold and keep them as a matter of protection, which she did for several years and until they were put in a safety deposit box rented by the husband and there remained until after his adjudication as a bankrupt, and were listed by him in his schedules and his claim of exemption thereof was disallowed by his trustee in bankruptcy. Held;</p> <p>That no rights in said policies of insurance passed to the husband’s trustee in bankruptcy.</p> <p>That the wife possessed certain vested rights in said policies of insurance and was entitled to a decree adjudging her interest therein and restraining said trustee from collecting or enforcing the same, or collecting the surrender value thereof.</p>