Volume 89 — New York Miscellaneous Reports

<p>Action brought under article 5, title 1, of the Code of Civil Procedure, to determine defendant’s claim to certain lands in Nassau county.</p>

<p>Schools — status of teacher in elementary schools how created — Laws of igi3, chap. 534.</p> <p>The status of a teacher in the elementary schools in the city of New York as a teacher in a grade is created by the formal action of the board of superintendents and of the board of education either by an original appointment under section 1090 of the revised charter or by a promotion thereunder.</p> <p>When the legislature referred to “ male teacher in the grades of the seventh and eighth years ” in chapter 534 of the Laws of 1913, which added to section 1091 of the said charter the following : “ The salary of a * * * male teacher in the grades of the seventh and eighth years appointed to teach in elementary schools prior to January first, nineteen hundred and twelve, shall hot be less than that now fixed for any regular teacher in the elementary schools,” it referred to those persons only who theretofore had been formally appointed or promoted to those positions in accordance with section 1090 of said charter and in no sense to those who had been teaching in those grades under temporary assignments.</p>

<p>Action to recover a sum of money.</p>

Appeal by assignee and undertenant from a final order in summary proceedings awarding possession of the property in question to the landlord.

<p>Negligence — in action to recover value of horse and harness' alleged to have been lost through defendant’s negligence — when plaintiff establishes prima facie case of want of ordinary care — evidence.</p> <p>Where in an action to recover the value of a horse and harness alleged to have been lost through the negligence of defendant plaintiff testifies that, paying therefor, he kept the horse and harness in defendant’s stable, which contained about thirty stalls, on his assurance that the horse would be safe there; that he put the horse in a stall early in the morning, fed him in the evening and went home; that on his return next morning the horse and harness were missing, and upon awakening defendant’s watchman who was asleep in bed asked him what had become of his horse and the watchman said he did not know anything about it and had not seen it, plaintiff establishes a prima facie case of want of ordinary care which requires an explanation from defendant; it also established affirmatively the negligence of defendant, it being a fair inference from the testimony that the watchman was in defendant’s employ.</p> <p>The rule as to the exclusion of leading questions should be relaxed when it is apparent that a witness, who is an illiterate foreigner testifying through an ■ interpreter, cannot be made to answer a question without being led.</p>

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

Appeal by the defendant from a judgment of the Municipal Court, of the city of New York, borough of Manhattan, first district, in its favor for the sum of three, dollars.

Appeal by the defendants from an order of the Municipal Court of the city of New York, borough of Manhattan, second district, denying a motion for a new trial because of alleged newly discovered evidence. Plaintiff recovered judgment for $500 damages, besides costs, after a trial by the court.

<p>Jurisdiction — of Municipal Court of city of New York — consent of parties cannot confer jurisdiction:—maintenance of action at law against savings bank" to recover moneys in trust.</p> <p>A wife cannot maintain an action at law against a savings bank to recover her own money which her husband deposited in his own name in trust for her.</p> <p>Assuming that she may have an action in equity to establish a trust in her favor, the Municipal Court of the city of New York has no jurisdiction of such an action.</p> <p>Consent of the parties cannot confer jurisdiction of the subject-matter of an action beyond the jurisdiction of said court.</p>

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

Appeal by the defendant from an order of the City Court of the city of New York, denying defendant’s motion for an order precluding the plaintiff from giving certain evidence upon the trial by reason of plaintiff’s failure to comply with an order directing him to furnish a bill of particulars.

<p>Contracts — construction of — provisions for sale of lots of land — agreement as to second mortgage — when mechanic’s lien is inferior to lien of second mortgage.</p> <p>Where all the provisions of a contract for the sale of certain lots of land with reference to the buildings to be erected thereon were apparently inserted for the sole benefit of the vendee who was given a free hand in placing a building mortgage as to its amount, and the vendor agrees to take a second mortgage for the balance of the purchase price, a mechanic’s lien filed by one who did work and furnished material in the erection of buildings upon the land is- inferior to the lien of the second mortgage taken by the vendor who, under the contract of sale, was to furnish none of the money for the erection of said buildings and was to have no say as to their character or as to the manner of their construction and could neither enforce nor prevent such construction.</p>

<p>Motion for security for costs.</p>

<p>Highways — what deemed highway — reduction of width of — when alley laid out on map cannot be dedicated for highway purposes — charter of city of Lockport.</p> <p>Chapter 204 of the Laws of 1897, amending the Highway Law of 1890 by which the width of highways was reduced from three to two rods, superseded and is a substitute for chapter 198 of the Laws of 1826 under which it was lawful to lay out public roads not less than three rods in width, and an alley only eight feet wide as laid out on a map and as it existed prior to 1905 cannot be laid out or dedicated for highway purposes.</p> <p>The public authorities having neither adopted nor kept such strip in repair and its use not having been an uninterrupted one, it did not become a highway by prescription under section 209 of the Highway Law which declares all land a highway which shall have been used by the public as such for twenty years.</p> <p>The provisions of the charter of the city of Lockport (Laws 1865, chap. 365, tit. 5, § 5) declaring “ all streets, lanes and alleys laid down on the map * * * and which have been laid out or thrown out to public use by the owners of the lands shall be deemed public highways ” do not undertake to make a private alley a public- highway.</p>

Motion to determine whether receivers’ certificates are prior liens on moneys due under a contract completed by receivers.

<p>Courts — of- record in Nassau county — when court crier’s salary fixed at certain sum per annum — board of supervisors no right to reduce or cancel court crier’s traveling fees fixed by law.</p> <p>The court crier of the courts of record in the county of Nassau, in addition to his salary as fixed by the board of supervisors, is entitled to receive an extra sum at the rate of five cents a mile for traveling expenses in going to and returning from the place of attendance. "</p> <p>The fact that relator accepted and discharged the duties of such court crier under an appointment by the county judge of Nassau county who requested that the salary of the court crier be fixed at a certain sum per annum in full for all services rendered was not a waiver of the right to traveling expenses under the statute and did not constitute an agreement on the part of the appointee to perform the duties of court crier for the stated salary without traveling fees.</p> <p>While a board of supervisors has power to fix the compensation of a court crier, it can neither reduce nor cancel the amount expressly fixed by law to be paid such official as traveling fees, or make a binding contract with the appointee to perform the ' duties of the position and to eliminate the fees expressly provided for by the statute.</p>

<p>Negotiable instruments — assignee of promissory notes — bills, notes and checks — pleading.</p> <p>Contracts — written — action against assignor for breach of contract and fraud — when motion for order setting aside judgment denied — pleading.</p> <p>The assignee of a promissory note takes it subject to any defense or counterclaim good as against his assignor, at least to the amount of the note.</p> <p>Certain machinery manufactured by plaintiff’s assignor under a written contract for the construction of an asphalt plant and delivered to defendant and erected upon his lands, being annexed to a concrete foundation or bricked, in, turned out to be of insufficient capacity and not in accordance with the contract, and defendant, although complaining of defects, made no offer to return the machinery but continued to use it, and brought an action against plaintiff’s assignor for breach of the contract and fraud. In separate actions brought by the assignee of two promissory notes given by defendant as part consideration of a contract for the erection of the asphalt plant, the answer did not set up as a counterclaim, for the reason that defendant had brought an action for same, the causes which would have constituted the counterclaim and upon proof of the assignment of the notes, to which there was no defense, judgment was directed in favor of plaintiff. Held, that a.motion for an order setting aside said judgment and permitting the service of an amended answer alleging that the asphalt plant to be furnished by plaintiff’s assignor for defendant was to become a part of the realty, did become a part of the realty and could not be returned, should be denied, as according to the contract the asphalt plant did not become real property by being annexed to the concrete foundations or bricked in.</p>

<p>. Action under section 1638 of the Code of Civil Procedure to quiet title to certain premises. Motion to dismiss complaint.</p>

<p>Wills — construction of — pecuniary legacies — certain bonds directed to be placed in trust so long as they pay interest — when provision for accumulation of part of income for ten years is invalid — provision for payment of annuities out of trust fund for a period of years does not suspend absolute ownership within meaning of statute — Personal Property Law, § 16,</p> <p>Where bonds bequeathed are charged with the payment of the income thereof to testator’s two brothers, the gift intended is one-half of the income to each brother during his lifetime.</p> <p>The rights of each brother under the will should be determined in an action to construe it and not in an action brought against the executor of the legatee of the bond.</p> <p>A pecuniary legacy to each of testator’s grandchildren “ being or becoming the issue of my daughter” to be paid to them upon becoming of age is a direct gift to a class vesting at testator’s death, the members of said class to be determined as of that time.</p> <p>The share of the accrued income to which said legacy may be entitled as well as such as may be.earned upon the legacy when it is set aside until the time of its payment arrives belongs to the legatee.</p> <p>A direction in a will that certain bonds shall be placed in trust to be kept so long as they pay interest must be followed by the "trustees.</p> <p>Where testamentary trustees were directed to hold property in trust for testator’s daughter “paying out to her during her lifetime the interest of about one-half of the net income ” the remaining portion to be invested in certain bonds and added to the trust fund to accumulate and after ten years said daughter was to receive the full interest instead of about half, she is entitled to one-half the income for ten years and thereafter for life the entire income.</p> <p>Such a provision for the accumulation of one-half of the income for the period of ten years is invalid under section 16 of the Personal Property Law, and such income accrued and as it accrues must go to the daughter who, presumptively, is entitled to the next eventual estate.</p> <p>Where at the daughter’s death the income of the trust fund was to go to testator’s grandchildren in equal shares absolutely, and after the death of each grandchild leaving no issue his or her portion was to be held in trust for his or her brothers and sisters and after the death of the survivor, if there be no issue of any of them, the trust fund was to be divided into three equal parts, the attempted gift’ of the income to the grandchildren for their lives is void as both it and the alternative gift over were not only dependent upon the enjoyment of che equitable life estates by the grandchildren but both were too remote in vesting.</p> <p>Where testator directed the income of property held in trust for a grandchild to be invested for five years and thereafter at the pleasure of her mother the trustees were to pay all the interest on said income to the granehild and upon her marriage, with the consent of her mother, she was to receive the capital with accumulated interest, but in case she did not marry the trustees were to hold the property in trust and pay her the income and in the event of her death before her mother the whole trust fund was to revert to the mother, a trust was created for the granddaughter with certain contingent remainders for her or to her mother in the alternative as the contingencies might happen, and there was no suspension of the absolute ownership for more than a single life; and it was testator’s intention that the granddaughter should receive all the income of the entire trust fund which was made up of the original fund plus the investment made from the first five years’ income.</p> <p>A provision for the payment of certain annuities out of the trust fund for a period of years held not to suspend the absolute ownership -within the meaning of the statute since the annuities were not required to be paid out of the income and were, therefore, alienable.</p> <p>A provision that the income of the trust fund for the benefit of said granddaughter should be invested for five years and thereafter all the interest should .be paid to her being invalid under section 16 of the Personal Property Law, the income for the five years accrued and as it hereafter accrues must go to her as the one presumptively entitled to the next eventual estate.</p> <p>The court is bound to find a rational scheme of disposition in a will if it can be done, and even though it be necessary to supply words or phrases or to give those which are in the will a meaning other than they ordinarily bear.</p>

<p>Release—obtaining release on basis of alleged false representations — when not necessary to have release set aside for fraud — pleading.</p> <p>Where by a compromise of pending litigation defendants agreed to -pay plaintiff a certain proportion of the value of certain real estate to be determined by appraisal less the amount of bona fide incumbrances which it is alleged defendants falsely represented to be greater than they actually were, a release obtained from plaintiff on that basis may be avoided in an action to recover the difference between the amount paid to her on giving the release and the amount to which she was entitled without restoring or offering to restore what she had received under the release, nor is it necessary in order to obtain the relief asked for to have the release set aside for fraud.</p> <p>Where no motion was made to strike from the complaint allegations of fact showing fraud in obtaining the release, an answer pleading the release as a defense is subject to demurrer.</p>

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

<p>Action to cancel a designation as beneficiary in a life insurance policy.</p>

<p>Constitutional law — public hack ordinance of city of New York as amended in 1914 — motion for injunction restraining enforcement of, denied.</p> <p>The public hack ordinance o£ the city of New York, as amended in 1914, and which declares “Any vehicle that has a taxicab meter affixed and uses the streets and avenues of the city of New York for the purpose of carrying passengers for hire shall be deemed a public hack and licensed under this ordinance,” is constitutional.</p> <p>A motion for an injunction pendente lite in an action to restrain the enforcement of said ordinance against plaintiff, a transportation company, whose taxicabs are employed in its private business and are operated solely from its private property or from the private property of certain railroad corporations, on the ground that said ordinance is unconstitutional and void and contrary to the Fourteenth Amendment of the Constitution of the United States in that it denies to plaintiff the equal protection of the laws of the land, will be denied.</p>

<p>Action for restoration of plaintiff as a member in an' unincorporated association.</p>

<p>Habeas corpus proceedings.</p>

<p>Habeas cobpus proceedings.</p>

<p>Action against a common carrier to recover damages.</p>

<p>Action by the plaintiffs against the defendant carrier for "the value of certain fruit consigned to the plaintiffs but not delivered.</p>

<p>Constitutional law — provisions of section g of the United States Revenue Act unconstitutional.</p> <p>The provisions of section 5 of the United States Revenue Act of October 27, 1914, requiring the certificate of a clerk of a state court to be stamped, are unconstitutional.</p> <p>Plaintiff in an action brought in the City Court of the city of New York will be granted an order directing the clerk of said court to certify a bill of costs as taxed without requiring plaintiff to affix a revenue stamp thereon.</p>

<p>Motion to have declared a nullity an order of January 25, 1915, entered and filed upon a decision of the motion of defendants at the second trial to relieve it from concessions made for the purposes of the first trial.</p>

<p>Supplementary proceedings — provisions of order appointing receiver in — examination of judgment debtor in — section 753 (8) of Judiciary Law.</p> <p>Unless an order appointing a receiver in supplementary proceedings provides for the continuance of an injunction contained in the original order for the examination of the judgment debtor he cannot be held in contempt as for a violation of said injunction order because of a transfer of property made by him after the appointment of the receiver.</p> <p>A judgment debtor upon his examination in supplementary proceedings when questioned with respect to certain premises evaded and suppressed information to which the judgment creditor was entitled and testified that he was not the owner of and had no right, title or interest of any kind in the liquor business conducted on said "premises, whereas, by a bill of sale transferring the identical property and made by him after the service of the order for his examination, it appeared that he was the owner of an undivided one-half interest in said business. The order appointing a receiver of the property of the judgment debtor did not provide for the continuance of the injunction contained in the order for the examination of the judgment debtor and the receiver made affidavit that he personally demanded of the judgment debtor that he deliver possession of his property to him but that the judgment debtor denied the ownership of any property whatsoever including the premises in question. An order was granted that the judgment debtor show cause why he should not be punished for contempt in making false statements concerning his property, or for such other and further relief as might seem just and proper in the premises. Held, that while the court could not adjudge- the judgment debtor in contempt for false swearing it was within its power to punish him for his wilful and premeditated evasion of a statement concerning his property as well as for sup-, pressing the fact of his ownership when interrogated in respect thereto.</p> <p>That the order to show cause was broad enough to bring the case within section 753(8) of the Judiciary Law, and it appearing that the conduct of the judgment debtqr. wás .sudh as to defeat, impair, impede and prejudice the rights and remedies of . the judgment creditors he should be fined in the amount of the judgment, with interest and costs, and be committed to the county jail until the payment of said fine or he be discharged according to law.</p>

<p>Actiosr to recover on an assigned claim for referee’s and stenographer’s fees.</p>

<p>Action against the maker and indorser of a promsory note, judgment being taken against the maker by default.</p>

<p>Proceeding upon the accounting of trustees.</p>

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

Appeal by the defendant from á judgment of the Municipal Court of the city of New'York, borough of Manhattan, ninth district, rendered in favor ■ of the plaintiff.

<p>Automobiles — action to recover damages for injury to — charge to jury. Where in an action to recover damages for injuries to plaintiff’s automobile which collided with defendant’s automobile while both were traveling in the same direction the jury might have found, as contended by defendant, that plaintiff's automobile was to the left of the centre of the highway, that defendant desiring to pass sounded a horn from a position 200 yards in the rear until plaintiff’s car was overtaken and that there was barely room to pass on the left, the defendant was entitled to have the jury charged that plaintiff was obliged as soon as practicable after knowing of the presence of the car of defendant to turn and yield him the road, and, further, that if the jury were satisfied that the accident would not have happened if plaintiff had turned out he could not recover, and a refusal to so charge calls for the reversal of a judgment in favor of defendant.</p>

Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, before the court without a jury for $98.52. Case tried on agreed stipulation as to facts.

<p>Appeal by the defendant from an order of the City .Court of the city of New York, setting aside a verdict in favor of the defendant and. granting a new trial.</p>

<p>Bailment — storekeeper’s liability for customer’s property.</p> <p>Where plaintiff, a customer in defendant’s clothing store, after trying on a coat and vest, at the invitation of the salesman, in order to try on the trousers, went into a dressing-room in which was a sign reading: “ Not responsible for customers’ garments or other property unless left at credit desk on this floor,” put on the new trousers, went with the salesman to the fitter who was on the same floor and upon returning to the dressing-room found that his wallet containing $185 which he had left in the pocket of his old trousers was missing though the trousers were still there, and it is conceded that, neither defendants nor any of the clerks had knowledge that plaintiff had the money or had left it in the dressing-room, defendant is not liable for the loss.</p>

<p>Estoppel — extent of—hills, notes and checks.</p> <p>Where in an action for goods sold it appears that after notes given by the buyer for the purchase price" had been paid in due course the accounts for the goods were signed and the invoices sent to the buyer, his failure to notify the assignee that the goods had been paid for estops him only to the extent of the consideration paid for the assignment though the buyer and seller were kiting notes and it is uncontradicted that the amount of the bills represented by the exchange notes was paid by defendants in cash.</p>

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

Appeal by plaintiffs from a judgment and order of the Municipal Court of the city of New York, borough of Manhattan, third district, denying a motion to set aside the verdict of the jury in favor of the plaintiffs for the sum of $146, upon the exceptions, and because the verdict is for insufficient damages, contrary to the evidence and contrary to law.

Appeal by plaintiff from a judgment of the City Court of the city of New York dismissing the complaint as against the defendant Kistler.

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

Appeal by the defendant from a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, seventh district, in favor of plaintiff for $261.30 damages and costs.

<p>Carriers — injuries to passenger — alighting on • wrong side of car — what law governs.</p> <p>An action brought in this state by a railroad passenger for personal injuries sustained in another state is governed by the law of the state where the accident occurred.</p> <p>The law of New Jersey that where a passenger alights from a train on the side opposite the platform he ceases to be a passenger and becomes a licensee does not apply where it appears that as plaintiff was about to alight on the wrong side of the train, as was the long established custom, she was forcibly and violently ejected from the last step of the car by a sudden jerking movement of the car which had come to a full stop.</p>

Appeal by the defendant from a judgment of the City Court of the city of New York, borough of Manhattan, in favor of plaintiff for $400 damages, besides costs, entered upon a verdict.

<p>Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fifth district, entered on a verdict directed in favor of the plaintiff.</p>

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

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

<p>Banks — controversy as to deposits — finding that entries in pass-book were erroneous — evidence.</p> <p>Where there is a controversy as to whether there were two deposits of $300 each made by plaintiff in defendant bank, one on May 7, 1908, and the other on May 15, 1908, a finding that the entries on plaintiff’s pass-book and her duplicate slips and on defendant’s loose-leaf ledger of two separate deposits of like amount were erroneous and that, in fact, there was but one deposit of $300, held not sustained by the evidence.</p> <p>Where defendant’s assistant cashier, who had no personal knowledge or recollection of the transaction, after inspecting a book of defendant’s in which he did not make entries was allowed, over plaintiff’s objection and exception, to testify that plaintiff had not made a deposit in the bank on September 7, 1908, the reception of such testimony constitutes reversible error, particularly as neither the clerk who made the entry in the deposit book originally nor the clerk who kept the loose-leaf ledger and made the alleged erroneous entries therein was produced as a witness nor his absence accounted for.</p> <p>Bijur, J., dissents.</p>

<p>Appeal by defendant from an order denying a motion to vacate an order amending a judgment of the Municipal Court of the city of New York, borough of the Bronx, second district.</p>

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

<p>Appeal — when appeal lies from order of Municipal Court of city of New York — when statement of trial justice not sufficient to set aside verdict.</p> <p>No appeal lies from an order of the Municipal Court of -the city of New York denying a motion to vacate an order setting aside a verdict in favor of plaintiff and vacating the judgment entered thereon.</p> <p>Where in an action to recover rent for a certain month neither side . excepted to a charge to the jury that whether defendant was a hold-over under a lease with plaintiffs’ testator and thereby became liable for the rent sued for in a certain sum was purely a question of fact, an order setting aside the verdict in favor of plaintiffs and vacating the judgment entered thereon was erroneous, the evidence being sufficient to sustain the finding of the jury and there being nothing in the record to sustain any inference that the verdict was rendered under the influence of prejudice or partiality.</p> <p>A statement of the trial justice, that “ the indiscriminate use by witnesses of the Metropolitan Newspaper Company, when the Metropolitan Nt.ws Company is meant,” was not sufficient ground for setting aside the verdict as both terms were fully and clearly explained in the charge of the court and their application made plain to the jury.</p>

<p>Contracts — when title of goods passed to vendee — when entitled to vendor’s lien under Laws of ign, chap. 571, § 134.</p> <p>Where goods were bought and paid for under an agreement that the vendor would take at the invoice price any of the goods not sold by the end of the season, the title to the goods passed to the vendee at the time of delivery.</p> <p>On the vendor’s refusal to take back the goods as agreed the vendee could either rescind and sue for the difference between the agreed price and the value of the goods, or treat them as belonging to the vendor and sue for the contract price, and upon electing to pursue the latter course was entitled under section 134 of chapter 571 of the Laws of 1911 (Sales Act) to a vendor’s lien which the vendee was not estopped from asserting because of a statement that the goods were at the disposal of the vendor, nor was the action to recover the contract price a waiver of the lien under section 137 of said statute.</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 after a trial by the court without a jury.

Appeal by plaintiffs from a judgment of the Municipal Court of the city of New York, borough of Manhattan, ninth district, entered on a verdict for defendant, and from an order denying a motion for a new trial.

<p>Sales — action to recover commissions on goods sold — when entitled to commissions — appeal.</p> <p>Where a complaint alleges a cause of action to recover commissions on goods sold, earned by plaintiff up to a certain date when she was discharged, and also a cause of action for breach of her contract of employment, an order that defendants furnish plaintiff with certain information and testify regarding all customers and sales made by defendants in their place of business from a certain date until the expiration of the agreement as plaintiff claims it to be is in any view too broad and must be reversed.</p> <p>Such an order should have been limited to sales procured by plaintiff or to new orders received by defendants after plaintiff’s discharge which were renewal orders on which had plaintiff’s employment continued she would have been entitled to commissions.</p>

<p>Attorneys — refusal by, to proceed before trial judge — when defendant deprived of day in court — securing order of substitution.</p> <p>Where an attorney refuses to proceed before a judge having the right to hear the case he has been afforded his day in court and cannot therefore claim another opportunity to present his case.</p> <p>The attorney’s refusal to proceed in such case is binding upon his client in exactly the same manner as any other act of the attorney at the trial.</p> <p>Where, however, before a trial begins, the attorney insists upon withdrawing from the case, the client is left without a representative and is in default, not because he refuses through his attorney to proceed but because the attorney refuses to proceed for him and in that way the client has been deprived of his day in court.</p> <p>As a result of a heated discussion between the trial judge and defendants’ counsel, and in order to avoid any possible .prejudice to defendants from the remarks of the court to their counsel, a mistrial was declared and another jury was drawn. Defendants’ counsel stated that because of what had taken place he did not believe he could do justice to his clients in trying the ease. His objection to proceed was overruled and in answer to his request that he be allowed to withdraw from the case the court stated that a trial or an inquest would be had, whereupon counsel withdrew and left the court-room. The court directed judgment for plaintiffs on an inquest. Held, that defendants had been deprived of their day in court and that an order denying a motion to open their default should be reversed and the motion granted, provided defendants "within ten days secure an order of substitution of attorney, etc.</p>

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

<p>Municipal Court of city of New York — power to vacate final order in summary proceedings — when precept not served on tenant — landlord and tenant.</p> <p>The Municipal Court of the city of New York has power in the first instance to vacate a final order in summary proceedings against a tenant and dismiss the petition when satisfied that the precept had not been served on the tenant.</p>

<p>Motion for a new trial on all the grounds specified in section 999 of the Code of Civil Procedure, except inadequacy of the verdict.</p>

<p>Appeal from a judgment of the City Court of Oneonta rendered in favor of plaintiff.</p>

<p>Action to restrain an alleged nuisance.</p>

<p>Taxpayers’ action to restrain payment of money to defendant Kinzly "by city treasurer of North Tonawanda, N. T.</p>

<p>Labor — rights of members of labor union — action to restrain boycott against plaintiff’s business — evidence — damages — injunction — violation of Penal Law, § 580(6).</p> <p>A member of a labor union has a legal right to quit his job and a threat so to do is not the kind of a threat referred to in section 580(5) of the Penal Law.</p> <p>What a member of a labor union may do as an individual, and may therefore threaten to do lawfully with respect to quitting work, cannot always be done, nor threatened to be done, lawfully by a combination of the members of the union in a compact to act unitedly in that respect.</p> <p>If the making and observance o£ such a compact by many confederates is calculated to injure trade and commerce it is obnoxious to the common law and a threat to do that is a threat to do an unlawful act.</p> <p>In an action to restrain the prosecution of a boycott against plaintiff’s business and for damages, it appeared that plaintiff engaged in the trucking business in a city was customarily employed by many regular patrons who were pleased with the service rendered and were disposed to continue their patronage. The relation between plaintiff and its employees had always been harmonious and they had been free to become union men so far as plaintiff was concerned and apparently they were satisfied with the terms and conditions of their employment. The representatives of the local teamsters’ union and the central labor union and both of said organizations took offense because, when plaintiff’s employees did not voluntarily join the local union after persuasion the plaintiff after request of thé labor leaders declined to advise or compel its men to join. Thereupon a thoroughgoing boycott was organized against plaintiff by the leading men in labor union circles in the city and a systematic concerted campaign was undertaken to compel plaintiff’s customers to withdraw their patronage from plaintiff by threatening to call strikes among their own men if such patronage was continued. Plaintiff did not refuse to treat with union labor leaders nor did it discriminate against those of its employees who did belong to the union, but the manager of plaintiff did state to the union leaders who called upon him that if his men asked his advice he would tell them he thought unionism would not tend to preserve the spirit of harmony which had existed between them and plaintiff but might introduce an element of discord but that he would not volunteer this information and would put no obstacle in the way of any of his men joining the union who so desired.</p> <p>Held, that the confederated acts of defendants as shown by the evidence violated section 580(6) of the Penal Law as being injurious to trade and commerce; and also that the threats to call strikes on plaintiff’s patrons to prevent plaintiff from exercising its lawful trade or calling were illegal under subdivision 5 of said section 580, and that plaintiff was entitled from the facts established to damages and an injunction against the continuance of the injurious acts complained of.</p>

<p>Lease — for years — when executrix may enforce lease for benefit of estate — action to compel specific performance of covenant to convey.</p> <p>■ A lease for years and all rights thereunder belong to the personal representative of the owner of the lease and his • executrix may enforce for the benefit of the estate any covenant of the lease whether it runs with the land or not.</p> <p>Where a decedent at the time of his death was the owner of an unexpired lease for years, containing an optional clause ’ for the purchase of the premises by the lessee, his executrix may maintain an action to compel specific performance of the covenant to convey.</p>

<p>Domicile — matrimonial — jurisdiction of court when insufficient—• Code Civ. Pro., § 1756(2).</p> <p>For several years prior to and at the commencement of an action for divorce plaintiff actually resided in this state though the matrimonial domicile ever since her marriage to defendant was in another state of which he was a resident. The summons was served on defendant by publication only and he entered no appearance in the action and the evidence justified a finding that he committed adultery in this state while plaintiff was living here as alleged in the complaint. Held, that the mere fact that plaintiff and defendant had been married in this state was not sufficient to confer jurisdiction on the court, irrespective of their residence (Code Civ. Pro., § 1756[2]).</p> <p>The- domicile of the husband is presumptively that of the wife, and there being nothing in the evidence to overcome such presumption and no facts disclosed which would enable the wife to acquire a separate domicile the court did not have jurisdiction because plaintiff was a resident of this state when the offense was committed and when the action was commenced.</p>

<p>Action for fraud. Motion for a nonsuit and for dismissal of complaint.</p>

<p>Action in ejectment.</p>

<p>Motion for leave to amend complaint and motion for judgment under section 547 of the Code of Civil Procedure upon the first cause of action.</p>

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

<p>Motion by the city of New York to reject the report • of the Board of Water Supply.</p>

<p>City of New York — refusal to issue permit to open streets to lay gas mains and pipes — when motion for mandamus denied.</p> <p>The power to issue permits to open the streets of the city of New York to lay gas mains and pipes rests with the borough president who is justified in withholding his permit until an applicant therefor accepts the terms and conditions prescribed by the department of water supply, gas and electricity under which the pipes are to be laid when the street is opened under the permit of the borough president.</p> <p>Where relator refused to submit to conditions imposed by said department and the borough president refused to issue a permit at the request of the department until relator had agreed to submit to its control, pay for the necessary inspectors, file maps and plans with the department, indemnify the city against loss through its negligence and agree to change and relocate its mains if required, a motion by relator for a mandamus to compel the borough president to issue the permit will be denied.</p>

<p>Pleading — allegations in answer — when motion requiring defendants to make answer more definite granted — denials contained in answer.</p> <p>In the second paragraph of their answer defendants denied each and every allegation contained in certain paragraphs of the complaint “ except so much thereof as shall be thereafter specifically admitted,” and in a separate defense by implication only were the allegations of the complaint admitted. Portions of the denials contained in the answer related to matters of which defendant must have personal knowledge or which were matters of public record capable of ascertainment upon ordinary inquiry. Held, that a motion requiring defendants to make their answer more definite and certain will be granted with leave to serve an amended answer.</p>

Action by judgment creditor to enforce a lien upon the interest of the judgment debtor in the estate of his deceased father who died intestate.

Action by a stockholder to compel the president and general manager of defendant to transfer to the company certain letters patent.

<p>Contracts — written agreements — action based on — when complaint defective — pleading — when defendant’s motion for judgment on the pleadings denied and plaintiff’s motion for like judgment granted.</p> <p>Where an action is based not only ojl a written contract between the parties but also on the implied obligation of defendants to pay certain cash claimed to have been received by them for the account of the plaintiff in connection with the transaction under the written agreement, the complaint is not defective in substance for a failure to allege specifically that under the written agreement as pleaded and that alone a balance is due plaintiff, and where a demurrer to the complaint admits that the balance under the contract together with the cash collected by defendants in connection therewith exceeds all defendants’ charges the complaint states a prima facie case and defendants’ motion for judgment on the pleadings will be denied and plaintiff’s motion for a like judgment will be granted.</p>

<p>Negligence — when grantor of leased premises under no ohligation to make repairs — pleading — when complaint states no cause of action.</p> <p>Where the grantee of leased premises is under no obligation to make repairs to a ceiling of an apartment of which the tenant has possession and control to the exclusion of said grantee whose .alleged wrong-doing consists merely in allowing the condition of the ceiling when it purchased the property to remain unchanged, a complaint alleging because of the unsafe and dangerous condition of the ceiling plaster fell therefrom striking and injuring plaintiff states no cause of action against said grantee.</p>

<p>Contracts — agreement to pay owner of certain land a certain sum for purchase of job to wreck buildings and clear site on said land — action against owner of land to recover for refusing to allow him to perform — when complaint dismissed upon merits.</p> <p>In pursuance of an agreement between plaintiff and defendant M plaintiff paid to the owner of certain land a certain sum for the pureháse of the job to wreck certain buildings and clear a site on said land, and as a guaranty for the faithful performance of the contract; and defendant M in his own name but for the benefit of plaintiff and himself and the owner of the land made the contract with it for the performance of the work, and said sum was used by plaintiff to obtain a contract with the owner to do the same work after it had refused to permit M to proceed with the work under his contract and plaintiff did the work in the name of a corporation organized by him for that purpose. Thereafter M brought an action against the owner of the land for breach of their contract in refusing to allow him to perform. Said action was really defended by plaintiff; he and his lawyer prepared the case for trial and on the witness stand he denounced M and his brother as crooks. Despite plaintiff’s efforts, M obtained judgment and plaintiff caused an appeal to be taken therefrom and perfected and paid for the stenographer’s minutes of the trial. Held, that plaintiff by his repudiation of the joint contract made in the name of M had forfeited any right he otherwise would have had in the judgment, and that his complaint in an action for an accounting by M with respect to the judgment obtained by him against the owner of the land should be dismissed upon the merits, with costs to defendant M.</p>

<p>Demurrer to defenses in answer.</p>

<p>Action to rescind sale of goods.</p>

<p>Application for the appointment of a committee of the property of an incompetent.</p>

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

<p>Stocks — blank transfer of certificate by owner confers upon holder apparent title to stock — upon whom loss from fraud must fall — who bona fide holder.</p> <p>To hold or carry stocks" does not mean to keep the identical stock or to keep the specified number of shares in the brokers’ safe deposit vault free and ready for delivery on demand; it means readiness and ability to deliver the shares under the rules of the stock exchange upon payment therefor.</p> <p>A blank transfer of a certificate of stock with an irrevocable power of attorney to transfer, signed by the person who appears by the certificate to be the owner, confers upon the holder of the certificate apparent title to the stock, and the bona fide transferee of such stock from the holder can hold the stock against the real owner, who is estopped from asserting his title.</p> <p>Where one -of two innocent parties must sustain a loss from the fraud of a third, such loss must fall upon the one, if either, whose act has enabled such fraud to be committed; an exception to this rule is where the instrument claimed to create the estoppel is obtained by common law larceny which involves the taking against the will of the owner.</p> <p>Plaintiff, a customer of a stock broker’s firm with whom he had pledged as margin on his speculative account certain certifieates' of stock indorsed in blank and unregistered bonds, brought an action against defendant bank, with whom the brokers had pledged the securities as collateral to a loan, for the return of the securities, on the ground that the brokers who had subsequently been adjudicated bankrupt had broken the original pledge by false representations that they were so conducting their business as to be unable to deliver on demand all shares purchased for all customers. Held, that such representation was no evidence of an actual fraud practiced on plaintiff and there being no justification in the proof for assuming that the number of shares out of loan represented the stock available for delivery under the rules and customs of the stock exchange, defendant bank and its assignee were entitled to judgment and plaintiff awarded judgment for the amount of the account stated between it and the brokers less the amount remaining in the hands of the bank or its assignee after satisfying the balance of its claim out of the collateral undisposed of which amount the bank is authorized and directed to pay over to plaintiff.</p> <p>The fact that the certificate of stock stood in the name of plaintiff and not in the name of the brokers was not sufficient notice to put the bank on inquiry nor to show, that it was not a bona fide holder of the stock.</p>

<p>Indictment — charging defendant with publication of malicious libel consisting of a picture — pleading — evidence when held to meet all requirements of sections 275 and 276 of Code of Criminal Procedure.</p> <p>An indictment under section 1340 of the Penal Law, which charges defendant with the publication of a malicious libel, consisting of a picture, a copy of which is set out in the indictment, is sufficient, it being for the jury to say whether or not the picture is a libel within the statutory definition.</p> <p>An allegation that the man shown in the picture is a representation and figure of N puts in issue whether or not the picture is a portrayal and likeness of N, and that means a recognizable likeness of N, and that is a question for the jury.</p> <p>The fact that on the same page with the picture and stated to be explanatory of it is printed an article in which no mention was made of N by name is no defense, as whether. the picture explained or unexplained is or is not a libel of N is still a question for the jury.</p> <p>Section 1343 of the Penal Law, which provides “ To sustain a charge of publishing a libel, it is not necessary that the matter complained of should have been seen by another. It is enough that the defendant knowingly displayed it, or parted . with its immediate custody, under circumstances which exposed it to be seen or understood by another person than himself,” is a sufficient answer to a contention that the indictment should allege that the picture was shown to some one who knew N.</p> <p>An indictment for libel, a misdemeanor under section 1341 of the Penal Law, which charges in the words of section 1340 of said law that the defendant “ did unlawfully and wickedly print and publish * * * ' a certain false, scandalous, malicious and defamatory libel,” sufficiently charges criminal intent.</p> <p>An indictment charging that defendant did publish a certain malicious libel “ by then and there printing and publishing the same,” in a certain magazine “ then and there edited, printed and published by ” defendants is not bad for duplicity as charging the commission of the crime in more than one form in the same count; the allegation that defendants edited the magazine being merely a statement of the evidence whereby their responsibility for the publication by the means and in the manner charged might be proved under section 1344 of the Penal Law, and the allegation that the magazine was edited by defendants does not add a different manner or means whereby it is charged that the libel was committed.</p> <p>The indictment considered upon a demurrer thereto and held to meet all the requirements of sections 275 and 276 of the Code of Criminal Procedure.</p>

<p>Costs — taxation of — when defendant entitled to tax item for costs before notice of trial — when not entitled to tax disbursement for expense of procuring stenographer’s minutes of former trial.</p> <p>Where at the first trial of an action a juror was withdrawn at plaintiff’s request defendant upon finally succeeding in the action is entitled to tax the costs paid to him by plaintiff under an. order allowing an amendment to the complaint upon payment of the taxable costs to date.</p> <p>On the second trial the ease was tried as a short cause but as it exceeded the time limit permitted by the rule and as plaintiff desired to amend his bill of particulars the case was sent to the general calendar and the third trial resulted in a dismissal of the complaint.' Held, that defendant was entitled to tax in his bill of costs an item of ten dollars for costs before notice of trial; one item of fifteen dollars for costs after notice of trial; one term fee, but was not entitled to tax as a disbursement the expense of procuring the stenographer’s minutes of a .former trial for use on the subsequent trial.</p>

Motion by the defendants to set aside a verdict for the plaintiff in -an action for damages for breach of a contract of employment.

<p>Negotiable Instruments Law, § 39 — note of religious corporation — indorsement by' officers — when no personal liability.</p> <p>Where the name of a religious corporation indorsed upon its promissory note is followed by the names of its president and treasurer, the words “ finance committee ” and the names of the persons constituting such committee, the indorsement comes within the protection of section 39 of the Negotiable Instruments Law and negatives any personal liability on the part of the individual signers.</p>

<p>Action on judgment rendered in Consular Court of China.</p>