Volume 88 — New York Miscellaneous Reports

<p>Carriers — action against for delaying transportation — damages.</p> <p>The plaintiff, in an action against a carrier for damages in delaying the transportation of goods, is entitled to recover only such damages as were reasonably within the contemplation of the parties when the contract of shipment was made, and where damages were based upon the fact that the goods, ladies’ and misses’ cloaks, were seasonable goods, but there was no proof that defendant had notice of that fact, nor testimony from which it could be charged with such knowledge, a judgment in favor of plaintiff will be reversed and a new trial ordered.</p> <p>Burnt, J., dissents.</p>

Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fifth district, dismissing the complaint, after a trial by a judge without á 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, after a trial by a judge and jury.

Appeal by the plaintiff from a judgment, rendered in the Municipal Court, of the city of New York, borough of Manhattan, first district, in favor of the defendant, in a trial without a jury.

<p>Appeal from a judgment of the Municipal Court, of the city of New York, borough of Manhattan, sixth district, rendered in favor of plaintiff, for the sum of $395, in a trial without a jury.</p>

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

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

Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Bronx, .second district, entered upon the dismissal of the complaint at the close of the plaintiff’s case, after a trial before the court and a jury.

Plaintiff appeals from a judgment of the Municipal Court of the city of New York, borough of Manhattan, second district, entered upon the dismissal of his complaint at the close of his case.

<p>Evidence — when held insufficient to show negligence — absence of proof — when doctrine of res ipsa loquitur not applicable.</p> <p>The evidence in an action by a manager of a section in defendants’ department store who was struck by the fall of a fire extinguisher from a counter and injured, considered, and held insufficient to show negligence either on the part of defendants or their superintendents.</p> <p>Testimony that extinguishers had previously fallen was not evidence of negligence in the absence of proof as to the cause of such fall, nor was it notice to the employer that the extinguishers were inherently dangerous in the absence of proof that they had inflicted damage on the previous occasion.</p> <p>The doctrine of res ipsa loquitur held not to apply.</p> <p>Cohalan, J., dissents.</p>

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

Appeal by the defendant from a judgment of the City Court of the city of New York, rendered in favor of the plaintiff after a trial by the court without a jury.

judgment of the City Court of the city of New York, entered in favor of the defendant, upon a verdict of a jury and from an order denying the plaintiff’s motion to set aside the verdict and for a new trial.

Cross-appeals from a judgment in favor of plaintiff, entered in the Municipal Court of the city of New York, borough of Manhattan, ninth district, after a trial by a judge without a jury.

Plaintiff appeals from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fifth district, rendered in favor of the defendants, after a trial by the court without a jury.

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

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.

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

<p>Appeal by plaintiff from a judgment of the City Court of the city of New York entered upon the dismissal of the complaint at the close of plaintiff’s case.</p>

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

<p>Sales — action for price — right to recover.</p> <p>Plaintiff, after purchasing the assets of the Detroit Stamping Company without assuming its liabilities, did business under the name of “ Detroit Stamp Company.” Held, that in an action for goods sold and delivered defendant was not entitled to be credited with the amount of his claim against the Detroit Stamping Company with which plaintiff had no connection.</p>

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

Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, entered on April 23,1914, in favor of defendant, on her counterclaim for $300, and $27.41 costs.

Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, entered on May 26,1914, in favor of plaintiff for $735.18.

<p>Judgment — when confession of, entered in action brought in a sister state, conclusive upon the parties — contradicting judgment recovered after draft given and accepted in full payment of claim — denial of motion for new trial—appeal.</p> <p>A confession of judgment entered in an action brought in a sister state is conclusive upon the parties in the absence of fraud and an action thereon is maintainable in this state.</p> <p>Where the complaint on said judgment alleged a separate cause of action for a balance for goods sold and delivered and for which the action resulting in the confessed judgment was brought, a claim that the judgment could not be sued on in this state because of an alleged prior agreement or understanding that it should not be is untenable -as the attempt to establish the fact would be contradicting the judgment which was recovered after a certain draft on a third person had been given by defendant to plaintiff and accepted in full payment of plaintiff’s claim against defendant, and testimony to sustain such attempt was properly excluded.</p> <p>Where the case disclosed that defendant received the mer-. ehandise for. which it had not paid in 'full, that proceedings instituted in the other state against the one from whom defendant ' had drawn the draft were for the equal benefit of-the plaintiff and the defendant herein, that defendant consented thereto and made plaintiff its agent in an attempt to collect a debt due defendant, an order denying its motion for a new trial made after the direction of a verdict against it will be affirmed, as even if the judgment from which no appeal was taken were reversed, a new trial would inevitably result in favor of plaintiff.</p>

<p>Appeal from a judgment of the City Court of the city of New York entered in favor of defendant for $280.13, and from an order denying plaintiff’s motion to set aside the verdict and for a new trial.</p>

Appeal by the plaintiff from an order of the Municipal Court of the city of New York, borough of Bronx, second district, sustaining a demurrer to plaintiff’s complaint.

<p>Appeal from a judgment of the City Court of the city of New York entered in favor of the plaintiff for $937.98, after a trial by the court without a jury.</p>

Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, second district, entered upon the verdict of a jury.

<p>Associations — membership corporations — right to enforce its contracts with third parties for benefit of members.</p> <p>A membership corporation is sufficiently in privity with its own members for them to enforce its contracts with third persons for the express benefit of said members.</p>

Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, rendered in favor of the defendant, after a trial before the court without a jury.

<p>Appeal from a judgment of the City Court of the city of New York, entered in favor of the defendant by direction of the court upon a special verdict.</p>

Plaintiff-appellant appeals from an order setting aside a verdict of a jury in favor of plaintiff and awarding judgment on the merits in favor of the def endant-r esp ondent.

<p>Appeal from- a judgment of a Justice’s Court.</p>

<p>Discontinuance — when plaintiff entitled to discontinuance on payment of costs — action to recover damages for assault — City Court of Fulton.</p> <p>Where an action to recover damages for an alleged unwarranted assault on plaintiff by defendant’s employees is brought in the City Court of Fulton and no counterclaim is pleaded or circumstances disclosed bringing the case within any of the exceptions to the general rule that a plaintiff is entitled as matter of right to an order of discontinuance upon payment of costs, plaintiff after two witnesses have been sworn in his behalf should be allowed to discontinue the action upon offering to pay the costs.</p>

<p>Justice of the peace — when not abuse of discretion for justice to deny motion by defendant’s attorney for adjournment — depositions — Code Civ. Pro. § 2942.</p> <p>It is not an abuse of discretion for a justice of the peace to deny a motion made by defendant’s attorney for an adjournment for substantially ninety days to enable his client who was out of the state and a material witness to return and be present at the trial.</p> <p>Whether the defendant’s attorney should not have taken out a commission for the examination of his client, quaere?</p> <p>Under section 2942 of the Code of Civil Procedure a justice of the peace may upon the request of either party to an action require the adverse party to exhibit his account on demand and in case of default of the party so to do may preclude him from giving evidence.</p> <p>In an action in Justice’s Court brought for the wrongful killing of plaintiff’s geese by defendant’s dog, defendant is not entitled to a bill of particulars of plaintiff’s evidence relative to a scienter.</p> <p>Whether section 2942 of the Code of Civil Procedure, requiring that items of the plaintiff’s claim in Justice’s Court be exhibited, relates to actions of tort, quaere</p>

<p>Indictment — charging crime of abandoning infant — jurisdiction of grand jury — when motion to set aside indictment denied — Penal Law, § 480.</p> <p>Where defendant by indictment was charged with the crime of abandoning his seven-year old child in destitute circumstances, in violation of section 480 of the Penal Law, at a certain place within the jurisdiction of the grand jury, and his claim, as set forth in the moving papers for leave to inspect the minutes of the grand jury for the purpose of enabling him to move to set aside the indictment, amounts to a defense to the charge but not proof that the grand jury did not have sufficient evidence before it to indict nor that his constitutional rights had been invaded, the motion will be denied.</p> <p>The fact that there was no preliminary hearing before a magistrate was not a controlling circumstance on the motion.</p>

<p>Summary proceeding brought to remove the respondent on the ground that he was an occupant of petitioner’s premises as a servant, and that the relation of master and servant had lawfully terminated.</p>

<p>Action for the foreclosure of a mortgage tried at a Special Term of the Livingston County Couit.</p>

<p>Code of Civil Procedure, § 1391 — action against employer of judgment debtor after refusal to pay pursuant to garnishee execution — pleading and proof.</p> <p>Section 1391 of the Code of Civil Procedure was enacted for the purpose of enabling creditors to collect their judgments where defendants were receiving wages of more than twelve dollars a week and is only intended to enable creditors to obtain by compulsory process ten per cent of such wages that the employee would not pay voluntarily.</p> <p>In no event can an employer be compelled to pay more than ten per cent of the wages actually earned by the employee, and in all eases the amount of such wages must be shown before plaintiff can recover in an action brought against the employer under said section.</p> <p>Upon the trial of an action to recover the full amount of the original judgment, its recovery, the issuance of an execution thereon and the return of the same nulla bona, the obtaining of a garnishee execution under said section 1391, the presentation of the same to the defendant and his refusal to pay the same were proved." ¡No evidence was given as to the amount actually earned and received by the judgment debtor after the original demand under the garnishee execution, a second demand having been made five months thereafter, though it appeared that during a portion of the time the judgment debtor was receiving in excess of fifteen dollars a week. On plaintiffs’ objection evidence offered by defendant to show the wages actually earned and received by the judgment debtor was excluded. The garnishee execution was never changed or modified.</p> <p>Held, that plaintiffs were entitled to recover something, and a judgment in favor of defendant will be reversed and a new trial ordered before the justice of the peace who tried the action.</p>

Action in equity by a taxpayer, to have declared illegal and invalid a contract for certain terminal improvements in the city of Buffalo.

<p>Indians — ratification by congress of lease granting exclusive right to operate for oil and gas within boundaries of Cattaraugus Reservation— when plaintiff entitled to restrain defendant, a Seneca Indian, from drilling gas well on lands claimed by him — injunction.</p> <p>Where a lease made by the council of the Seneca Nation of Indians, granting to plaintiff the exclusive right to operate for oil and gas within the boundaries of the Cattaraugus Reservation, was ratified by act of congress, except that the lessee was required to file a bond for the faithful performance of all the conditions of the lease on its part, plaintiff is entitled to an injunction restraining defendant, a Seneca Indian, residing upon said reservation, from drilling a gas well on lands claimed by him and which had been cultivated and improved by him and his Indian predecessors for upwards of forty years.</p>

<p>Chattel mortgage — requirement of section 256 of Lien Law as to filing — mortgage declared invalid because of omission to refile.</p> <p>A chattel mortgage must be refiled as required by section 235 of the Lien Law or it ceases to be valid as against creditors of the mortgagor.</p> <p>Where the mortgagee of chattels, after the expiration of the time within which the mortgage might be refiled, took possession of the property and advertised it for sale, the trustee in bankruptcy of the mortgagor may maintain an action to have the mortgage declared invalid because of the omission to refile it.</p>

<p>Title — action to determine claim to certam lands within state forest preserve — who may claim — evidence of possession — constitutional law — Tax Law, § 123 — jurisdiction — who are necessary parties — when sale by comptroller void.</p> <p>An action to compel the determination of a claim of title to certain lands within the state forest preserve in Herkimer county was tried at an Equity Term of the court, neither party demanding a jury trial. Plaintiff claimed title under two deeds, one from the comptroller as the result of a tax sale in 1881, and the other from individual grantors in 1889. Defendant claimed under a tax sale for a school tax for eighty-seven cents assessed against the property in 1898 which was bid off by E for three dollars and sixty-four cents to whom the usual . certificate of purchase was given and who assigned it to S to whom the comptroller issued a tax deed, the conveyance being subject to all claims of every name which the people of the state had thereon. The property was conveyed to defendant in 1911 by a deed which was recorded as well as all prior conveyances. The answer put in issue the material allegations of the complaint, an alleged payment to the state of the amount bid for the property which it still retained; that defendant upon his purchase paid a stated sum for the property; that plaintiff had not tendered back the amounts paid by either the original purchaser or the defendant; that S was a necessary party, and that defendant purchased the property without any notice or knowledge of the invalidity or defects in the conveyance from the comptroller. For a further defense defendant alleged that the original assessment was valid; that the deed to S from the comptroller was recorded more than two years prior to the conveyance to defendant; that the time for the redemption of the sale expired on a certain date, naming it, and that more than five years from the expiration period allowed by law for the redemption of said sale had elapsed before the commencement of the action. It appeared in evidence that the comptroller’s notice that he was in possession of the wild, vacant and forest lands located in Herkimer county was published in a newspaper in said county pursuant to section 13 of chapter 711 of the Laws of 1893, and that such notice among other parcels included the premises in question. Held:</p> <p>That as the forest, fish and game commission was in the actual as well as the constructive possession of the property in question for the period provided by section 1638 of the Code of Civil Procedure the action was properly brought thereunder.</p> <p>Defendant having put his deed on record, plaintiff being in constructive possession, as alleged in the complaint, was justified in bringing the action,' as one who has legal title to land need not be in actual possession thereof in order to maintain such action.</p> <p>The trial having proceeded as if the action were in equity, defendant’s objection that the court was without jurisdiction and that the case should be sent to a Trial Term comes too late after the trial; the action of each party in noticing the ease for trial at an Equity Term must be deemed an election to have the case so tried.</p> <p>S was neither a necessary nor proper party to the action as the title of defendant was exactly the same as that of S under his tax deed; moreover under said section 1638 it would be improper to make any other a party than the one claiming title thereto.</p> <p>The action of the comptroller in selling the property in question, the title to which had been in plaintiff for a long time and had become a part of the forest preserve of the state, was absolutely void and contrary to the express prohibition of the Constitution of the state and the duty of the comptroller as provided by statute in making sales of property assessed against the state.</p> <p>Under section 123 of the Tax Law (Laws of 1896, chap. 908, as amended in 1897) it was the duty of the comptroller to bid in for the state any and all lands liable to be sold at any tax sale held by him.</p> <p>A contention that plaintiff before bringing the action should have paid or offered to pay the amount paid by the original purchaser of the premises, or what was paid by defendant r,o his grantor, is of no avail to defendant for the reason that the action is governed by a particular statute and has been held to be one at law and not in equity.</p>

<p>Surrogate’s Court — when matter will be sent back to — petition for probate of will — when provisions of Code of Civil Procedure prior to September i, 1914, govern — Code Civ. Pro. §§ 2537, 2538.</p> <p>Where on petition for the probate of a will a citation was issued before September 1, 1914, the provisions of the Code of Civil Procedure as it then stood govern, and the matter should be concluded thereunder; therefore an order of the surrogate that the trial be had at a Trial Term of the Supreme Court in the county, the contestant having demanded a jury trial under sections 2537, 2538 of the Code of Civil Procedure, is unauthorized and the matter will be sent back to the Surrogate’s Court.</p>

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

<p>Supervisors — board of — designation by majority of newspaper to publish Session Laws — County Law, § 20.</p> <p>A single employee is not an interested person within the meaning of section 1868 of the Penal Law.</p> <p>Where a majority of the seven Democratic members of the board of supervisors of Schenectady county designated the Schenectady Gazette to publish the Session Laws, concurrent resolutions of the legislature and election notices for the year 1915, and filed said designation with the board of supervisors who, in turn, sent to the secretary of state the proper notice, said designation is not illegal because one of the supervisors voting therefor though employed at a stated salary as city editor of the Gazette by the corporation which publishes it was not interested therein either as stockholder, officer or director.</p> <p>A designation of another newspaper thereafter made by three of the seven Democratic members of the board of supervisors to' publish like matter is not legal under section 20 of the County Law.</p>

<p>Negligence — question of, for jury — action for damages — trial — when motion to set aside verdict as excessive denied.</p> <p>Where by direction of the authorities of an incorporated village defendant, an electric power company, placed in a street, and seven inches from a wall which separated school grounds from the street, a pole with a gooseneck attached on the side away from the wall, and defendant had knowledge that school boys were accustomed to use the wall in their play, defendant was in duty bound to maintain its wires in a reasonably safe condition, and in an action to recover for the death of a ten-year old school boy who was killed while at play by coming in contact with a wire which was defective where it entered the gooseneck, the question of defendant’s negligence was for the jury.</p> <p>Where at the time of his death the boy was bright, healthr and strong, and after school hours ran errands and at times acted as a watchman for which he received two dollars a week and something more during the summer, and turned his money over to his mother, a motion to set aside a verdict for $5,000 as excessive will be denied.</p>

Motion by defendant Henrietta Bentti Hanson for an order changing the place of trial from the county of Saratoga to either the county of New York or the county of Suffolk.

Application by the relator for a peremptory writ of mandamus compelling the acceptance by the commissioner of highways of' the state highway known as No. 5155 and compelling the payment by the comptroller of the state to the relator of the sum of $15,559.11, for work done in the construction and improvement of the state highway, known as the AlbanyGuilderland state highway.

<p>Demurrer to the complaint.</p>

<p>Liquor Tax Law — when liquor tax certificate held by assignee revoked — revocation of prior certificate for violation by former holder.</p> <p>A liquor tax certificate held by an assignee may be revoked for a violation of the law committed by the assignor even though the assignee be an innocent party.</p> <p>The revocation of a prior liquor tax certificate for a violation of law by a former certificate holder entitled the commissioner of excise to an order of revocation of a subsequent certificate issued to the person who violated the law but who transferred the subsequent certificate to an innocent party to traffic in liquors at other premises before the order of revocation of the prior certificate was made.</p>

<p>Lease—■ liability of assignee of — covenant to pay taxes when due — landlord and tenant.</p> <p>An assignee of a lease is only liable to the landlord for a breach of covenant therein to pay taxes which occurs while he is the owner of the term.</p> <p>Where a lease with covenant by the tenant to pay when due all taxes which shall be levied or imposed on the premises during the term is assigned subject to its terms, the assignee is not liable under said covenant for his failure to pay a tax which did not become due and payable until after the landlord had accepted a surrender of the lease within the term.</p>

<p>Libel — when language of alleged libel ambiguous — pleading — failure to plead special damage in complaint — when demurrer overruled.</p> <p>Where the language of an alleged libel is ambiguous and capable of an innocent as well as of a harmful meaning, the question of what defendant intended is for the jury, and except in mitigation of damages it cannot avail defendant that he intended the alleged libelous words to convey an innocent meaning if the jury are satisfied otherwise and ordinary readers would certainly have understood them in the harmful sense.</p> <p>A complaint set forth a communication sent by defendant, a manufacturer of machinery for brewers and having letters patent covering certain machines or parts thereof, as follows: “ The carbonating system installed for you [thereby meaning the Keystone Brewing Company] by Wittemann Brothers [thereby meaning this plaintiff] is an infringement, and it must lead to patent litigation from us [thereby meaning the defendant] in the near future; you [thereby meaning the Keystone Brewing Company] should have a valid bond protecting you [thereby meaning said brewing company] against any patent suits and damages thereunder exeeuted not by an irresponsible company or individual, but by a perfectly solvent concern or individual; our [thereby meaning defendant’s] carbonating process for breweries is covered by an absolutely valid and substantiated patent in regard to the absolute preservation of the aromatic qualitative properties of the gas collected.”</p> <p>Held, on demurrer, that the complaint stated facts sufficient to constitute a cause of action in libel.</p> <p>That the action was not brought to sustain any patent rights of plaintiff, there being none so far as the pleadings disclosed, but was in the nature of a willful and malicious injury to property based upon allegations that defendant having a patent, or knowing that it had no patent, falsely and maliciously and willfully charged plaintiff with infringing its patent, well knowing that its words were false, willful deceit being the gravamen of the action, and that the state court had jurisdiction of the action.</p> <p>The complaint, therefore, in so far as the alleged libel states insolvency is good and for failure to plead special damage is bad under the charge of infringement, and a demurrer on the ground that the complaint fails to state a cause of action will be overruled.</p>

<p>Marriage — annulment of — when burden of proof on ground of fraud is on plaintiff — failure to establish case by fair preponderance of evidence.</p> <p>The burden of proof in an action for the annulment of a marriage on the ground of fraud is on plaintiff to show not only that the misrepresentation complained of was as to a fact which was an essential element of plaintiff’s assent to the marriage, but also that such misrepresentation was of such á nature as to deceive'a person of ordinary prudence.</p> <p>In an action to annul a marriage on the ground that defendant falsely represented to plaintiff that her illegitimate child had been born in lawful wedlock to her and F, it appears that at the time of the marriage plaintiff knew that defendant had been unchaste with at least another beside himself, and he made no effort to verify defendant’s statement as to the place where and the year in which she claimed that her ceremonial marriage to F had taken place, and it further appears that defendant, who denied having made the misrepresentation alleged, in answer to a printed question, in the marriage license described herself as never having been married, plaintiff fails to establish his case by that fair preponderance of evidence required by law, and judgment will be granted in favor of defendant.</p>

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

<p>Demurrer to affirmative defense and counterclaim.</p>

<p>Action to foreclose a paper in the form of an assignment of a lease, which is alleged to be in reality an equitable mortgage.</p>

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

<p>Motion for an order overruling the answer as frivolous and for judgment thereon.</p>

<p>Motion to vacate order for examination of witness, Richard J. Scoles.</p>

<p>Motion for a new trial after verdict directed upon an issue framed at Special Term for trial by jury.</p>

<p>Action to annul a marriage.</p>

<p>Judgments — against city of New York — when plaintiff entitled to commence new action — Greater New York Charter, § 246 — claims barred by Statute of Limitations — Code Civ. Pro. §§ 405, 1209.</p> <p>Upon the trial of an action commenced September 25, 1909, on a cause of action which accrued on a claim against the city of New York not later than November 1, 1906, the complaint was dismissed at the close of plaintiff’s case and the exceptions directed to be heard at the Appellate Division in the first instance. Upon the order of the Appellate Division overruling the exceptions judgment was rendered dismissing the complaint January, 1912, and in January, 1914, said judgment was affirmed by the Court of Appeals. Held, that the year within which plaintiff was entitled to commence a new action, as provided by section 405 of the Code of Civil Procedure, began to run from the rendition of the judgment of affirmance by the Court of Appeals.</p> <p>Section 246 of the Greater New York Charter authorizes the comptroller to consider and certify for payment an illegal or invalid claim against the city which in his judgment it was equitable and proper for the city to pay, but provides that such power shall not authorize the audit or payment of any claim barred by the Statute of Limitations. Held, that" the reference to the Statute of Limitations did not mean the general period of limitation prescribed for any particular class of actions unmodified by any of the provisions which suspend the running of the statute in certain cases, and a motion for a peremptory writ of mandamus directing the comptroller to consider plaintiff’s claim on its merits will be granted.</p> <p>Where a judgment does not state that the dismissal of the complaint was on the merits and it does not appear from the judgment roll that it was so, the judgment under section 1209 of the Code of Civil Procedure is not conclusive.</p> <p>Where a case is tried with a jury the dismissal of the com- . plaint is nothing but a nonsuit; if defendant is entitled to judgment on the merits the direction of a verdict in his favor is the proper practice.</p>

<p>Application for an injunction. •</p>

<p>Discontinuance — application of rule which guides court in determining whether to grant a discontinuance — divorce.</p> <p>Marriage — action for annulment of — when motion to discontinue action denied —■ divorce.</p> <p>The rule which guides the court in determining whether to grant a discontinuance in an ordinary action cannot be strictly applied in an action for divorce.</p> <p>Where plaintiff was married to defendant, who was forty years her senior, and after living together for three weeks they separated, since which time she has persistently endeavored to terminate the marital relation by suits for separation, annulment and divorce, retaining different lawyers and receiving alimony and counsel fees except in the action for divorce, and throughout all such litigation has been seeking to use the process and powers of the court solely for her financial advantage, her motion to discontinue an action subsequently brought to annul the marriage on the ground that at the time of the marriage defendant was physically incapable of entering into the-marriage state, that such condition has continued and is incurable, will be denied, and the decision upon the motion for alimony and counsel fees in the divorce action will be reserved until the court has reached a decision and made findings in said last suit for annulment.</p>

<p>City of New York—use of streets in, as highway — right of city to erect elevated railroad over street — condemnation proceedings — when action of commissioners of estimate and assessment not reviewable.</p> <p>Where a street in the city of New York has been used as a highway for thirty or forty years, and for twenty years it has been under the exclusive control of the city for all street and highway purposes without the assertion of any claim of ownership except in subordination to the public easement, an application for the appointment of commissioners of estimate and assessment in a proceeding by the city to acquire title to parts of the street not theretofore acquired in fee and to which no adverse claim has been made, should be denied, where it is not seriously controverted by the petitioner that the real purpose is to afford the city the right to erect an elevated railroad over the street.</p> <p>In the city of New York, a subway under the street or an elevated railroad over it serves a municipal use and is an added easement or burden on the street and adjacent property which cannot be placed upon the street without special and additional compensation to the abutting owner whether he owns the fee to the bed of the street or not.</p> <p>Where the taking of land for street purposes is lawful, the action of the commissioners of estimate and assessment in fixing the area of assessment is not reviewable unless the property assessed is not actually benefited by the taking.</p>

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

<p>Calendar — commercial, of City Court of city of New York — what is legal excuse for adjournment.</p> <p>Counsel in a case noticed for the commercial calendar of the. City Court of the city of New York must be prepared to try the case on the following day, or present a legal excuse for adjournment, and in case of failiure to comply with this rule must be prepared to accept the consequences of a default.</p> <p>Where a case, duly noticed, appeared on the calendar for trial on a day certain' but counsel for defendant neither appeared nor submitted any reason for adjournment, and an inquest was taken, judgment entered, execution issued and a levy made thereunder, a motion by defendant who presented no reasonable excuse for his default will be granted on condition that he pay all taxable costs and disbursements to date, costs of the motion, furnish a bond to secure any judgment recovered by plaintiff and pay the sheriff’s fees and poundage under the execution and levy, otherwise the motion will be denied, with costs.</p>

<p>Motion to direct the clerk of this court to tax plaintiffs’ costs in the action.</p>

<p>Motion to vacate order to examine defendant before trial.</p>

Action to set aside an extraordinary assessment charged by defendant upon plaintiff’s certificate of insurance in the defendant society, and to remove the lien thereof from said certificate.

<p>Contracts — action on—provision of — when motion for dismissal of complaint denied — prevention of performance.</p> <p>A provision of a written contract by which defendant engaged plaintiff to perform services as an actor for a period of eleven weeks in a special production at a specified weekly salary that should be paid each and every week that he publicly performed must be read in connection with subsequent provisions of the contract enumerating the particular occasions when his compensation would be withheld.</p> <p>Where in an action on the contract it appears that after plaintiff had performed for two weeks and his salary had been paid his further performance was prevented by defendant whose president informed plaintiff that he would pay him while he was idle rather than risk the high reputation enjoyed by him as an artist by continuing in the play in which he was first engaged to the detriment of both plaintiff and defendant, a motion to set aside a verdict in favor of plaintiff and for a dismissal of the complaint will be denied.</p>

<p>Action to cancel of record assignments of three mortgages.</p>

Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, entered in favor of the plaintiff and against the defendant for the sum of $171.60.

Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fourth district, overruling its demurrer to the complaint.

<p>Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, dismissing the complaint at the close of plaintiff’s case.</p>

<p>Landlord and tenant — when stipulation against subletting waived — when landlord not liable for injury caused by leakage of water.</p> <p>A stipulation against subletting without the written consent of the landlord is waived by his acceptance of rent from the subtenant.</p> <p>In the absence of proof that the landlord of the first floor of a building is the owner of or in control of the entire building, he cannot be held liable for injury to property on the first floor caused by leakage of water from a broken pipe in an upper apartment which was empty.</p>

<p>Municipal corporations — building regulations — vent pipes — duty to extend.</p> <p>Under section 50 of the plumbing rules and regulations of the Building Code of the city of New York, which provides that “ When a building exceeds in height that of an adjoining building * * * the owner of the higher building shall defray the expense of extending * * * vent lines above the roof of the higher building or shall himself make such alterations,” the duty is imposed upon said owner, in ease he violates said regulation, of extending the pipe above his own roof.</p> <p>Where a building ten or twelve stories higher than the building of defendant previously erected on an adjoining lot contains windows within twelve feet of the vent pipe of defendant’s building, his failure to extend such vent pipe above the top of said windows does not render him liable to a penalty for a violation of the regulations of said Building Code.</p> <p>The word “ adjoining ” in said regulation is intended to be used in its strict sense and not as equivalent to “ adjacent.”</p>

Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, seventh district, rendered in favor of defendant after a trial before a judge and a jury, and also from an order entered denying plaintiff’s motion to set aside the verdict and for a new trial. The pleadings were oral.

Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fourth district, rendered by a judge without a jury in plaintiff’s favor for $252.83.

<p>Appeal from an order of Municipal Court of the city of New York, borough of Manhattan, second district, dismissing a summary proceeding brought by the landlord against George J. Kraus, as survivor of the copartnership of Sullivan & Kraus, tenants.</p>

Appeal by the defendant from an order of the Municipal Court of the city of New York, borough of Manhattan, fifth district, denying the motion of the defendant to amend the judgment by striking therefrom the statement that the defendant is liable to arrest.

<p>Appeal by the plaintiff from an order of the Municipal Court of the city of New York, borough of Manhattan, fifth district, dismissing the complaint for failure to prosecute and from the judgment entered thereon.</p>

<p>Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Bronx, second district, entered upon a verdict rendered in favor of the plaintiff.</p>

<p>Contracts — action by principal to recover purchase price — when defendant entitled to show fact of agreement — sales.</p> <p>On a sale of goods by the agent of an undisclosed principal, his agreement to allow the amount of an account against him as an offset against the purchase price binds his principal, and in an action by the principal to recover the purchase price defendant under a general denial is entitled to show the fact of such agreement.</p> <p>A defendant under a denial of an allegation of a complaint that a certain contract was made may prove that the contract made was different from the one alleged in the complaint.</p>

<p>Insurance (fire) — policy of — construction — when no recovery for loss sustained.</p> <p>Where under a policy insuring plaintiff’s stock of varnish, gums and other merchandise contained in or attached to the buildings, additions and extensions situated at a certain street corner he was privileged to do such work and use such materials as are usual in the business of a varnish warehouse, and a fire occurred in and was confined to an adjacent small shed used as a “ boiling room ” in the manufacture of varnish, and it appears that it and another shed used as a “ thinning room ” were separated from each other and from the corner building which was the one actually described in the policy by brick walls, and that in order to enter either shed it was necessary to go through the common yard of plaintiff’s plant, there can be no recovery on the policy for the loss sustained.</p>

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

Appeal by defendants from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fifth district, entered upon their default in appearing or answering.

<p>Judgment — how far conclusive on party notified to defend action — prisoner admitted to bail on insufficient bond — action against sheriff for escape — sheriff’s clerk who accepted bond notified of action.</p> <p>Where a party is given an opportunity to defend an action of which he has been given notice he is concluded, in any sub- ■ sequent litigation between the same parties, as to all questions determined in said action and material in any subsequent litigation.</p> <p>A sheriff, in an action against him for damages caused by the escape of a prisoner admitted to bail upon an insufficient bond, tendered the defense of the action to his bond clerk who had accepted the bail bond without requiring the sureties to justify. The clerk ignored the tender and after the recovery of judgment by default against the sheriff he began an action against the surety on his clerk’s bond and the defendant in that action tendered the defense to said clerk who ignored the opportunity to defend and on failure of the surety to answer or defend a judgment against it was recovered by the sheriff. In an action on behalf of said surety against the bond clerk to recover the amount of the sheriff’s judgment, held:</p> <p>That as the negligence of defendant in.accepting an insufficient bail bond was the gist of the action against the sheriff, and the one by. him against defendant’s surety, the judgment in each action was conclusive in the present action.</p>

<p>Landlord and tenant — ratification of lease — when reletting constitutes a surrender and acceptance by operation of law — evidence to sustain recovery for money paid for gas, electricity and telephone.</p> <p>One who occupies and pays the rent of an apartment leased in his name -by his authority ratifies the lease and is bound thereby though he was ignorant of its terms.</p> <p>A landlord’s reletting of premises vacated by the tenant constitutes a surrender and acceptance by operation of law in the absence of evidence sufficient to sustain a finding that such re- - letting was for the benefit of the tenant.</p> <p>In an action by a landlord to recover the difference between the rent reserved by a lease and the amount which a new tenant agreed to pay for the premises after they had been vacated by the original tenant, the defense of surrender and acceptance is ah affirmative defense which must be pleaded; it cannot avail to preclude a recovery by the landlord of the rent due at the reletting.</p> <p>Where the point that there was no competent proof to sustain a recovery for money paid by plaintiff for gas, electricity and telephone calls claimed to have been used by defendant was not taken at the trial, the recovery may be sustained on appeal where the defects of proof are merely technical.</p> <p>If the landlord could not relet the premises for the benefit of defendant, the original tenant, he could not recover for expense incurred in reletting.</p>

<p>Taxes — apportionment of — amount of taxes assessed and collected • upon stock of banks — deducting fees of county treasurer — Tax law, §§ 2, 24.</p> <p>Statute of Limitations — when barred — pleading several causes of action— violation of statutory duty.</p> <p>Under section 2 of the Tax Law defining a “ tax district ” as meaning a political subdivision of the state having a board of assessors authorized to assess property therein for state and county purposes, construed in connection with section 24 ' of said statute, the amount of taxes assessed and collected upon the stock of banks located in the city of Buffalo should after deducting the fees of the county treasurer be paid to said city and should not be apportioned to the county of Erie.</p> <p>The board of supervisors having only to order by resolution a warrant drawn in favor of the city for the amount of the bank taxes less fees of the county treasurer, no judicial function is involved, and the city in an action at law was entitled to recover the amount of said taxes.</p> <p>That the city without protest or objection had for years acquiesced in an illegal apportionment of such taxes between it and the county and had permitted the county to use the money so realized for general county charges did not estop it from insisting on the repayment thereof.</p> <p>An answer pleading that the several causes of action set forth in the complaint are barred by the Statute of Limitations in such cases made and provided, though insufficient in form, is amendable.</p> <p>The neglect or refusal of the board of supervisors to direct the county treasurer as required by section 24 of the Tax Law to pay over to the city the bank taxes collected was a violation of statutory duty and gave the city a complete cause of action to recover the full amount of the taxes which action was barred by the Statute of Limitations unless within six years of the first day of January succeeding their payment an action to recover the same was brought.</p>

<p>Supplemental opinion. See, ante, page 148.</p>

<p>Actions in equity to set aside the purchase and exchange of certain bonds.</p>

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

<p>Undertakings—-action for breach of — Code Civ. Pro., § 814.</p> <p>Insanity Law, § 94 — when judge of court of record may grant order for discharge of patient — action for damages — allegations in complaint— when complaint demurrable.</p> <p>Where, in the course of a special proceeding, an undertaking as prescribed by law has been given to the people for the benefit of a party or other person interested, the one to be benefited, by section 814.of the Code of Civil Procedure and upon leave being granted, may prosecute an action in his own name for .a breach of the undertaking.</p> <p>By section 94 of the Insanity Law, when the superintendent of a state hospital for the insane certifies by written reasons his unwillingness to certify to the discharge of an unrecovered patient by request, any judge of a court of record of the judicial district in which said hospital is situated, upon such certificate and an opportunity to the superintendent of being heard, and upon such other proof as may be produced before said judge, may grant an order for the discharge of such patient upon such security to the people of the state as he may require for the good behavior and maintenance of the patient.</p> <p>Where, after the release of a patient from a state hospital for the insane, she threw sulphuric acid on plaintiff, the complaint in an action for damages which simply alleges that as a condition of the release of the patient a bond was required does not admit of prpof of the various acts and conditions prerequisite to the requirement of the giving of the bond, and the absence of an allegation that the superintendent certified in writing his unwillingness to discharge the patient, a condition precedent to the granting of an order of discharge, upon giving security, renders the complaint demurrable as not stating a cause of action.</p>

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

<p>Lease—‘railroads — lease executed in 1871 — covenant to discharge all taxes — liability thereunder for payment of present income tax.</p> <p>Where by the terms of a lease made in 1871 between plaintiff, a domestic corporation, and defendant which since the execution of said lease has operated the railroad of plaintiff and several other railroads of which plaintiff was lessee, all of which are mentioned in and covered by said lease, the defendant agreed “to discharge all taxes and assessments of every description,” it undertook thereby to pay the then-existing income tax so far as it was assessed against plaintiff. A further provision of said lease that, if by any change of the law the present “ tax or duty ” should be required of the plaintiff stockholders, defendant would pay the same, shows clearly that the parties had the federal statutes in mind, for the word “ tax ” and “ duty ” were often used interchangeably in said statutes rather than in the laws of the state, and under a fair interpretation of the lease the income tax paid by plaintiff to the United States for the year 1913 is a tax that defendant had assumed and agreed to pay.</p>

Writs of certiorari to review assessments against certain railroad properties within the city of Troy for the year 1911.

<p>Wills — probate of — when evidence not sufficient to show want, of testamentary capacity — Code Civ. Pro. § 2653a.</p> <p>Where a decree granting probate of a will of testatrix executed in 1910, and denying probate of an instrument executed by her in 1912 which her husband claimed to be her last will and testament, was affirmed on appeal to the Appellate Division of the Supreme Court, and an action was subsequently brought under section 2653a of the Code of Civil Procedure to vacate the decree of probate and to have the instrument of 1912, which in terms revoked all former wills, adjudged to be the last will and testament of testatrix, and the proof shows its due execution, and defendants call no witnesses to sustain their allegation of undue influence or coercion, and the evidence is not sufficient to show want of testamentary capacity, plaintiff is entitled to judgment with direction that the said instrument of 1912 be admitted to probate.</p> <p>When undue influence is relied on to annul testamentary dispositions it must be proved and cannot be presumed.</p> <p>The fact that testatrix’s husband, who was a lawyer, at- her suggestion prepared the instrument of 1912 which made a change of disposition of property in his favor as compared with the former will raises no presumption of undue influence on his part.</p>

<p>Divorce — lack of evidence of adulterous disposition — admission by one witness of advice to another witness to ask for money for testifying — evidence — when motion for new trial denied.</p> <p>A husband and wife, though on friendly terms, separated by mutual consent. In an action brought by the husband for divorce, though opportunity for the commission of adultery on the part of the wife was shown, there was no evidence of adulterous disposition on her part, or familiarity of conduct, ■ or the use of terms of-- endearment, love and affection, and plaintiff did not call as a witness one who was concededly favorable to him either to contradict the testimony of the alleged corespondent given on cross-examination or to testify to even so much as his attentions to defenditiit when on an ocean trip, and the main testimony as to improper relationship between him and defendant was given by colored servants who had both sworn previously to the reverse, and ohe witness admitted that she had advised another witness to ash money for testifying, and the testimony of a witness who recently procured a position through plaintiff’s influence was contradicted both by witnesses and circumstances, a motion to set a§jde a verdict in favor of defendant and for a new trial willN denied.</p>

<p>Mandamus — writ of — meaning of “promotion” in Civil Service Law.</p> <p>Where the salary of relator holding a classified position on the field staff of the engineering service of the borough of Queens was reduced from the maximum of $2,100 to $1,800 the minimum salary, following an inquiry by the acting president of said borough into the quality and quantity of relator’s work, his general conduct, punctuality, attendance, executive ability and capacity for initiative, as well as into the salaries of other engineers doing the same class of work and receiving ' less pay therefor, a motion for a peremptory writ of mandamus restoring his salary to $2,100 will be denied, there being no suggestion upon the record that the reduction of his salary was prompted by improper motives, or was contrived to trick him or to circumvent the law.</p>

Motion to vacate original order and motion to set aside summons, notice of object of action and all subsequent proceedings.

<p>Application for an order to cancel certain statutory bonds.</p>

<p>Rapid Transit Act — acquisition of land under — additional maps filed nunc pro tunc — when objection by property owners overruled — requirement of statute as to exemptions.</p> <p>Where part of the land sought to be acquired under the Rapid Transit Act is situate in one county and part in another, the filing of the map in either is a substantial compliance with the statute, especially if filed in the county wherein the proceeding is instituted.</p> <p>The court under the Rapid Transit Act, if necessary, may allow an additional map or maps to be filed nunc pro tunc, and will do so in the order appointing commissioners.</p> <p>A petition alleging that “ The estates, rights, terms, privileges, franchises or easements which are to be acquired or extinguished by the City of New York, in and by this proceeding, is an estate in fee simple absolute free from all liens and encumbrances, except as noted in the memorandum attached to and made part of this petition, to all those certain lots, pieces or parcels of land and land under water, with the buildings and improvements thereon and indicated upon said maps or plans and specifically described in said memorandum as Parcel I., required for the purposes of the construction, maintenance and operation of a portion of the rapid transit railroad described in paragraph III. of this petition,” sufficiently shows that petitioner seeks to obtain property in fee simple absolute, and an objection by property owners that the interest in the property sought to be condemned is not clearly and accurately set forth in the petition and the memoranda indorsed on the map must be overruled.</p> <p>Under section 59 of the Rapid Transit Act the court may strike out from the maps and memoranda a clause which .fates that there is excepted and excluded from the title to be acquired any right or interest “ owned by the city or state of New York,” as the statute nowhere requires the city to designate specifically .such exemptions.</p> <p>As the statute nowhere requires that each owner’s property shall be described as a separate parcel, an objection by an owner that his lands are combined with those of other claimants in the same parcel will be overruled.</p>

Action to determine claim of defendants to a negative easement or interest in the nature of an easement in certain premises situated in the borough of Manhattan.

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

<p>Attorneys — suspension of — does not prevent attorney from acting in person.</p> <p>Lis pendens—motion to cancel, by one not a party, must be made in special proceeding.</p> <p>The suspension of an attorney from practice does not prevent him from continuing to act in person in an action wherein he is plaintiff.</p> <p>A motion to cancel a Us pendens made by one not a party to the action must be made as a special proceeding.</p> <p>Where, in an action charging defendants with conspiracy to injure plaintiff, the only relief demanded is a money judgment, plaintiff is not entitled to file a Us pendens.</p>

<p>The nature of this action and the material facts are stated in the opinion.</p>

Motion by defendant to be relieved from certain admissions made as to delivery receipts received in-evidence upon the trial of this action.

Action on the Commercial Calendar of the City Court of the city of New York to recover an unpaid balance due under a composition agreement of the defendant’s creditors. Judgment for the plaintiffs.