Volume 9 — Bedell

The nature of the action and the facts, so far as material, are stated in the opinion. The sureties upon the guardian’s bond continued liable after the infant arrived at the age of fourteen years. (Code Civ. Pro. § 2828.) The Surrogate’s Court had jurisdiction of the proceedings instituted by Kathryn T. Fahy, executrix of the deceased guardian, and the decree made is binding upon the sureties. (Code Civ.

Supreme Court in the second judicial department, entered February 26, 1902, which affirmed an order of Special Term denying a motion for an injunction to restrain the defendant Grout, as comptroller of the city of New York, from paying the salaries of Charles Guden, as sheriff; of John K. Neal, as register, and of Charles T. Hartzheim, as clerk of the county of Kings. The facts, so far as material, are stated in the opinion.

<p>1. Insurance — Resolution op Doubt against Insurer. Doubt or ambiguity in the terms of a policy of insurance which have no accepted significance should be resolved against the insurer and in. favor of the assured.</p> <p>3. Subject-matter op Insurance — Insurance on Use and Occu panoy — Construction. The business use which the property is capable of in its existing condition and indemnity to 1lie owner in the event that it should not continue in the same condition of availability to him, and not the earnings and profits of the business, are insured by a policy on the “ use and occupancy ” of a grain elevator plant, providing for indemnity at a fixed per diem valuation so long as the owner is prevented from the elevating and other handling of grain by reason of the destruction or damage of the premises by fire.</p> <p>3. When Sole and Unconditional Ownership not Changed by Pooling Arrangement. A change of the sole and unconditional ownership of the use and occupancy of an elevator plant within a policy of insurance conditioned for its avoidance by any such change, is not made by a pooling arrangement with other elevator properties for the promotion of the common interest and the suppression of hostile and unprofitable competition for business, which merely secures the establishment by the executive committee of the association of uniform rates for elevating during the navigation season and the placing of all earnings into a common pool for distribution upon the basis of agreed percentages, the right to percentages under the agreement not to be affected by the incapacity of the' elevator by destruction by fire, all earnings on an elevator after the season to belong to it, and the business of the elevator to continue under the direction of its proprietor, who employs his own employees and pays his own operating expenses, taxes and insurance premiums, and makes his own contracts except as to price.</p> <p>4. When Doctrine op Subrogation not Applicable. The insurer of the use and occupancy of a grain elevator is not entitled to subrogation to the rights of the insured under a pooling arrangement with other elevator properties, which under all conditions, and notwithstanding that the. elevator might be destroyed and the general fund diminished in consequence, entitle it to receive its percentage of the common fund into which the earnings of the elevators are placed.</p>

Court imposing a transfer tax upon the residuary estate in the hands of the trustees under the will of Nathan F. Graves, deceased. The facts, so far as material, are stated in the opinion. Under the policy of the state and the spirit, purpose and intent of the Transfer Tax Law as it existed at the time of the death of the testator the residuary bequest contained in liis will is exempt from a transfer tax.

The nature of the action and the facts, so far as material, are stated in the opinion. The judgment dismissing the complaint is a judgment upon a non-suit, and may be reviewed by this court.

This action was brought to recover damages for injuries sustained by the plaintiff in an accident alleged to have been caused by the negligence of the defendant’s commissioner of highways. Held: as a matter of law, that the commissioner of highways did what a reasonable and prudent person would ordinarily have done under .the circumstances. That was a question for the jury, and it was error to hold otherwise.

<p>1. Will—Construction — Contingent Interest. Under a will providing that the testator’s estate he held in trust during the life of the survivor of his two youngest children, and directing that the executrices, during the continuance of the trust, apply one-third of the income to the use of the testator’s wife and the residue to the use of his children in equal shares, the share of a deceased child leaving issue to he paid to such issue, and further providing that upon the termination of the trust two-thirds of the trust estate, if his wife is living, and the whole if she is dead, shall he divided between his children then living and the issue of any deceased, such issue to take the share of its deceased parent —a granddaughter of the testator whose parent is dead, takes only a contingent or defeasible estate or interest in the income or principal of the trust property which will not vest until the end of the trust period, or if vested, will he divested by her death during the continuance of the trust.</p> <p>2. Judgment—Res Judicata—Trust. A statement in an interlocutory judgment rendered in a partition suit, that a certain beneficiary under a testamentary trust is entitled to a specified portion of the proceeds of sale, is not binding upon the other beneficiaries where their rights as between themselves were not drawn in issue, and the final judgment merely determined that one-half of the proceeds of sale should be paid to the executrices under the will for the purposes of the trust created by it.</p> <p>3. Evidence—Burden oe Proof—Estoppel. One who sets up a judgment as an estoppel has the burden of proof to show that the questions in issue iñ the pending suit were litigated and determined in the action in which the judgment was rendered.</p> <p>4. Judgment — Construction of the Term “ Remainder in Ebb.” A statement in the referee’s report and in the interlocutory judgment rendered in a partition suit, that a designated beneficiary under a testamentary trust is entitled to “a remainder in fee” in a specified part of the premises sought to he partitioned, does not import a fee simple absolute or effect any change or enlargement of the beneficiary’s interest or estate beyond that given by the will.</p> <p>5. Effect of Judgment in Action of Accounting. A judgment rendered in an action for an accounting whereby it was decreed that a designated beneficiary under a testamentary trust was entitled to a specified share of the accrued income in the hands of the trustees is not conclusive in a later action to determine the disposition of income accruing subsequently to the death of the beneficiary whose share is claimed under the terms of the will creating the trust hjr her next of kin and heir at law.</p>

The plaintiff, as one of the executors of the last will of Mary Callahan, deceased, brought this action to foreclose a mortgage given to her by Asa B. Richardson and Annie C., his wife. Mr. Richardson, the other executor, declined to unite as plaintiff and was made a defendant in his representative capacity.

The nature of the action and the facts, so far as material, are stated in the opinion.

Carll have judgment against the plaintiff and each of her co-defendants, except the defendant Bichard C. Carll, upon the issues in the action, with costs. The nature of the action and the facts, so far as material, are stated in the opinion.

<p>1. Cobpobations — Failube to File Annual Bepobt—Notice of Intention to Hold Dibeotob Pebsonally Liable fob Debts. An action against a director of a corporation to enforce his personal liability for its debts because of failure to file the annual report required by section 30 of the Stock Corporation Law (L. 1893, ch. 688), brought before the passage of section 34 of that act (L. 1899, ch. 354), is not within the terms thereof declaring that no director or officer of any stock corporation shall be liable to any creditor of the corporation because of failure to make or file an annual report, 11 whether heretofore or hereafter occurring,” unless within three years after the occurrence of the act or default written notice of intention to hold him personally liable is served upon him, since its retroactive provisions are to be construed as relating entirely to defaults occurring before the passage of the section as to which rights had not become fixed and upon which actions have not been brought, and have no application to actions to enforce any such liability which were in existence at the time of its enactment.</p> <p>3. Same. The service of a written notice of intention to hold such director personally liable is not necessary as a condition precedent to an action commenced in 1899 after the passage of section 34 on debts existing and for a default, liability for which had not been waived, occurring prior to the enactment of the section, since his liability may be enforced by an action begun at any time within the year 1899, without notice, “ or by an action begun thereafter if within such year written notice of intention to enforce such liability shall be given ” as provided in the preceding part of the section.</p> <p>3. When Specific Finding as to Waiveb Unnecessaby. No specific finding that the personal liability of such director had not been waived by the plaintiff or by the original creditors or by any provision of any instruments creating such debts, is necessary to support a judgment against him in an action brought after the passage of section 34, since the burden is upon the defendant to allege and prove such a waiver; if the action was brought before the passage of such section it is not governed thereby.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. There has been no settlement or discharge of the cause of action alleged in the complaint for the conversion of - 400 shares of stock. (Gould v. Cayuga Bank, 86 N. Y. 75; Kley v. Healy, 127 N. Y. 555 ; 5 Lawson’s Rights & Rem. § 2567; 1 Am. & Eng.

The action was brought to recover damages for injuries received by the plaintiff from being run over by one of the defendant’s cable cars, in the city of New York. The plaintiff was a boy of . about twelve years of age, living with his father on Columbus avenue, in the vicinity of the scene of the accident.

Court in the first judicial department, entered Decernber 6, 1900, affirming a judgment in favor of plaintiffs entered upon a verdict directed by the court. The nature of the action and the facts, so far as material, are stated in the opinion. Defendants are bound to recognize Lagaña & Co. as holding the legal title to the proceeds of sale of the lemons.

<p>1. Principal and Agent — Relation Between Factor and Principal Is Fiduciary. The relation between a commission agent or factor for the sale of goods and his principal is fiduciary, and in the absence of an express agreement or one implied from the course of business or dealing between the parties, giving to the former the right to appropriate to his own use the proceeds of sale, they belong to the principal, subject only to the lien of the agent for commissions and other advances and charges, and the principal may follow and reclaim them so long as their identity is not lost, subject to the rights of a bona fide purchaser for value.</p> <p>2. When Refusal to Pay Over Proceeds of Sales Constitutes Conversion—When Principal’s Debt to Third Person Cannot Be Counterclaimed in Action Therefor. Where, under such circumstances, factors upon a seasonable demand refuse to surrender such proceeds, they will not be permitted in an action by the principal, to defeat or diminish a recovery therefor by purchasing the claim of a third person against him and interposing it as a counterclaim, for two reasons: 1. The action is under section 549 of the Code of Civil Procedure one of tort, and secures to the plaintiff the same rights and remedies that exist as to other wrongs of a similar character. 3. The attempt to enforce such counterclaim is an effort to deal with the funds of the principal for their own benefit, and thereby defendants assume a position incompatible with their duties, adverse and antagonistic to his rights, and which are in direct conflict with his interest.</p>

<p>1. Municipal Corporation — Liability for Damages for Illegal Alteration of Established Grade of Street. Where a municipality whose charter provides for the alteration of the grade of a street previously established thereunder, and for a method of indemnity to an abutting owner whose building is injured thereby, that method must be deemed exclusive, and if, without conforming thereto, it alters such grade, although such alteration is effected in connection with the paving of the street, the owner may maintain an action at law against it to recover the resulting damages.</p> <p>2. Benefits. Upon the trial of such an action an instruction that the jury should “not take into consideration at all any supposed benefits by reason of the change of grade of the street,” and a refusal to charge “ that it is necessary for plaintiff to show that he has sustained damages which exceed all benefits received by him ” are proper where there is no evidence to show that he derived any benefits from the alteration of grade; any benefits he may have derived from the street having been paved are covered by the assessment therefor, and are not the proper subject of an offset against his damages sustained by the wrongful alteration of grade.</p>

<p>Tax—Legacies to Missionary Societies and Christian Associations not Exempt from Transfer Tax. Missionary societies and Christian associations are not religious corporations within the meaning of section 221 of the Tax Law (L. 1896, ch. 908, amd. L. 1901, ch. 458) exempting such corporations from the transfer tax imposed hy that law, and legacies to them are subject to the tax where the testator died subsequent to the passage of chapter 382 of the Laws of 1900, which deprived such societies ef the exemption theretofore existing under section 4 of the Tax Law.</p>

<p>Warehousemen — Liability of Cold Storage Company for Failure to Maintain Temperature Requisite for the Preservation of Property Stored. A cold storage warehouse company, in the absence of an express agreement, impliedly undertakes to maintain the necessary temperature required for the preservation of property stored with it by its customers for the time the property remains stored; if its stock of ice is insufficient for that purpose, it should either replenish it or give timely notice to the customer to remove the property; if it fails to do either in the absence of circumstances charging the customer with knowledge of the situation, the company is liable for the damages resulting from a failure to maintain the requisite temperature.</p>

The facts, so far as material, are stated in the opinion. The law requiring the sheriff to sell is constitutional and a sale made in violation thereof is “ unauthorized and void.” (Kerrigan v. Force, 9 Hun, 185; 68 N. Y. 381; Matter of Vil. of Middletown, 82 N. Y. 199 ; People ex rel. v. Crissey, 91 N. Y. 640 ; Board of Supervisors v. Allen, 99 N. Y. 538; Ferguson v. Ross, 126 N. Y. 464; People ex rel. v. Murray, 149 N. Y. 373.) A purchaser on a partition or foreclosure sale…

The facts, so far as material, are stated in the opinion. The president of the common council is a member of the common council within the meaning of that term as used in the provision of the charter for the designation of official newspapers. (L. 1898, ch. 182.) In looking for the, intent of the legislature not only the language of a statute may be resorted to, but also the. circumstances under which it was enacted.

plaintiff entered upon a verdict and an' order denying a motion for a new trial. The nature of the action and the facts, so far as material, are stated in the 'opinion. It was error to charge that if the jury believed the witnesses called by the plaintiff, then the act of the conductor was a negligent act, and defendant was liable. (Thompson v. Seaman, 67 App. Div. 58; Kleiner v. T. A. R. R. Co., 162 N. Y. 193 ; S. S. Nat.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 8,1901, reversing a judgment in favor of plaintiffs entered upon a verdict directed by the court and an order denying a motion for a new trial and dismissing the complaint.</p> <p>On the 31st of May, 1894, the defendant, a domestic insurance corporation, doing an ordinary life insurance business, issued a policy on the life of Emanuel Bourbon, whereby it promised to pay to Blanche Bourbon, his wife, the sum of $5,000 on the 24th of May, 1899, or on his death, if he died before that date. On the 31st of August, 1899, after the policy had become due and was payable, but before it had been paid, the plaintiff Amberg caused a levy to be made upon the sum of money due to Mrs. Bourbon-thereon under an attachment issued in an action commenced by him against her in the Supreme Court of this state. January 5th, 1900, judgment was rendered in said action by default, the summons having been served by publication, in favor of the plaintiff and against the defendant therein for the sum of $23,772.24. Execution having been issued upon said judgment and returned unsatisfied, this action was commenced, by leave of said court, against the defendant herein by said judgment creditor and the sheriff, who levied the attachment, to recover the amount due upon the policy. The defendant answered, and, after admitting certain portions of the complaint, pleaded a general denial only.</p> <p>Upon the trial the facts alleged in the complaint were proved without contradiction and the defendant moved to dis- ■ miss the complaint upon the ground that “ neither the policy in question nor its proceeds are subject to the attachment in evidence in the case, nor to an execution, nor can the policy or its proceeds under the statutes and laws be reached by a creditor of the wife; ” that neither the policy nor tlie proceeds thereof are property according to law and that judgment for the plaintiffs would be no protection to the defendant against an action by Mrs. Bourbon for the sum due upon the policy. The motion was denied and the defendant excepted. Neither party asked to go to the jury, and, under the direction of the court, a verdict was rendered in favor of the plaintiffs for the amount due on ,tlie policy and interest. The judgment entered accordingly was reversed upon appeal to the Appellate Division and the defendant appealed to this court.</p> <p>The claim that' if the defendant paid the amount to the sheriff here it would have no defense in an action brought by Blanche Bourbon cannot be raised for the first time at the trial. (O’Brien v. G. W. Co., 50 N. Y. 128 ; Code Civ. Pro. § 820.) A debt owing from an insurance company to a beneficiary, under an insurance policy, is attachable at the suit of a creditor in a case where the policy has actually matured and the company stands as a debtor to the beneficiary. (C. T. Assn. v. Newkirk, 16 N. Y. Supp. 177; Holt v. Keyhoe, 30 Hun, 619 ; Crosby v. Stephan, 32 Hun, 478.)</p> <p>The amount due upon this policy is payable to the wife free from the claims of her creditors, and neither such amount nor the policy itself is subject to the plaintiff’s attachment nor execution for the reason that the policy is upon a husband’s life and for the benefit of his wife. (L. 1858, ch. 187; L. 1862, ch. 70; L. 1866, ch. 656 ; L. 1870, ch. 277; L. 1896, ch. 272 ; Baron v. Brummer, 100 N. Y. 372; Brummer v. Cohn, 86 N. Y. 11; Brick v. Campbell, 122 N. Y. 337 ; Frank v. M. L. Ins. Co., 102 N. Y. 266; Leonard v. Clinton, 26 Hun, 288 ; Smilie v. Quinn, 90 N. Y. 492; Romaine v. Chauncey, 129 N. Y. 566 ; Eadie v. Slimmon, 26 N. Y. 9.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. Plaintiff had title to the land when the pulp wood was cut in 1899. (128 N. Y. 270 ; 152 N. Y. 204 ; 157 N. Y. 437; 159 N. Y. 176 ; 161 N. Y. 520 ; 162 N. Y. 84.) The case was correctly disposed of under section 1187 of the Code of Civil Procedure. (52 App. Div. 349 ; 11 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The learned court erred in denying the motion to direct a verdict upon the ground that the statute of this state, so far as it affected imported coffees, was unconstitutional. (Brown v. State, 25 U. S. 419 ; Bowman v. C. & N. W. Ry.

The nature of the action and the facts, so far as material, are stated in the opinion. , The facts established in this case do not show that the defendant created or maintains a nuisance.

The facts, so far as material, are stated in the opinion. By the will and codicil there has been an equitable conversion into personalty of the third of the real estate given by the terms of the will to Charles W. Cornell absolutely, but by the codicil executed later on the same day changed to a legacy in trust for his benefit.

The facts, so far as material, are stated in the opinion. It being admitted that the tax levied is upon the right of the relator to do business in this state if its business done here is of an interstate character, there can be no dispute as a matter of law that, it is not taxable by the state for doing it.

The facts, so far as material, are stated in the opinion. The question of whether any additional certificate to the one in question can be demanded by the comptroller is res adjuclieata. (Leavitt v. Wolcott, 95 N. Y. 212.) The provisions of section 8 of chapter 171 of the Laws of 1893, requiring a certificate from the supervisor, justices of the peace and town clerk do not apply to work done under a contract by a special commission of the character of the work in question.

The nature of the action and the fact's, so far as material, are stated in the opinion. The power conferred upon the board of supervisors by the provisions of the County Law, section 36, only enabled them to establish and define disputed boundary lines between towns.

The nature of the action and the facts, so far as material, are stated in the opinion. The power to make the improvement and impose the assessment was conferred upon the board of trustees and not on the trustees alone exclusive of the president. (Smith v. People, 47 N. Y. 330 ; People v. Lacombe, 99 N. Y. 43.) The meeting of April 27, 1892, at which the improvement was ordered, was regularly had and the absent trustee had due notice thereof. (Dillon on Mun.

an. order of the Appellate Division of the Supreme Court in the First Judicial Department, entered April 16, 1902, which affirmed a judgment of the Court of Special Sessions of the city of Hew York convicting the defendant of a misdemeanor. The facts, so- far as material, are stated in the opinion.

The nature of the action and the facts, so far as material, are stated in the opinion. Under a complaint pleading performance of the conditions of a contract, evidence of facts in excuse of non-performance is inadmissible. (Clark v. Post, 113 N. Y. 17; Southwick v. F. Nat. Bank, 84 N. Y. 420; Truesdell v. Bourke, 145 N. Y. 612; Neu decker v. Kohlberg, 81 N. Y. 296 ; Anderson v: Hubbell, 93 Ind. 570; Maxwell v. Longenecker, 89 Ill. 102; Mabury v. L., etc., F. Co., 60 Fed.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 20, 1900, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial.'</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>Defendant’s driver had no authority, express or implied, to cause the arrest of the plaintiff and the defendant is .not responsible for his acts in that behalf. (Allen v. L. & S. W. Ry. Co., L. R. [6 Q. B.] 65; Mulligan v. N. Y. & R. B. R. R. Co., 129 N. Y. 506; Palmeri v. M. Ry. Co., 133 N. Y. 261; Mali v. Lord, 39 N. Y. 381; Cosgrove v. Ogden, 49 N. Y. 255 ; Mallach v. Ridley, 43 Hun, 346 ; Rounds v. D., L. & W. R. R. Co., 64 N. Y. 129 ; Farrell v. Friedlander, 63 Hun, 254; Kirk v. Garrett, 84 Md. 383; Porter v. C. I. R. & P. R. Co., 41 Iowa, 350.) The driver in procuring the plaintiff’s arrest was acting not for the defendant but to protect himself from liability for the stove under his contract with the defendant, and the latter is, therefore, not liable. (Rounds v. D., L. & W. R. R. Co., 64 N. Y. 129 ; Mott v. C. L. Co., 13 N. Y. 543; Montgomery v. Sattirano, 16 App. Div. 95; Lafitte v. N. O., etc., R. R. Co., 42 La. Ann. 34.) The court erred in charging the jury that they might give punitive damages, as the arrest was the personal wrong of the servant and not of the master. (Cleghorn v. N. Y. C. & H. R. R. R. Co., 56 N. Y. 44; Wright v. G. F. R. R. Co., 24 App. Div. 617; Eddy v. S. R. T. Co., 50 App. Div. 109; 1 Sedg. on Dam. [8th ed.] § 378.)</p> <p>The defendant’s driver caused the plaintiff to be arrested while acting within the scope of his employment, and while engaged in the transaction of his master’s business. (Mott v. C. I. Co., 73 N. Y. 543 ; Ochsenbein v. Shapley, 85 N. Y. 214; Poucher v. Blanchard, 86 N. Y. 256 ; Lynch v. M. Ry. Co., 90 N. Y. 77 ; Mali v. Lord, 39 N. Y. 381; Dupre v. Childs, 52 App. Div. 306 ; Palmeri v. Met. Ry. Co., 133 N. Y. 261; Bank of N. S. W. v. Owston, 40 L. T. R. 500.) The driver procured the plaintiff’s arrest for the purpose of getting back the oven, the substance of the charge being a theft. (Lynch v. M. Ry. Co., 90 N. Y. 77.) The defendant’s exceptions to the charge of the learned trial justice, and to his refusal to charge as requested were not well taken. (Voltz v. Blackmar, 64 N. Y. 440 ; Brown v. Chadsey, 39 Barb. 253; Kolzen v. B. & S. A. R. Co., 1 Misc. Rep. 148; Cleghorn v. N. Y. C. & H. R. R. R. Co., 56 N. Y. 44.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. Slothing was alleged in the complaint or proved upon the trial which warranted resort to a court of equity. (Matter of Regan, 167 N. Y. 338, 344; Peri v. N. Y. C. & H. R. R. R. Co., 152 N. Y. 521, 527; Bailey v. Murphy, 136 N. Y. 50 ; Poole v. Belcher, 131 N. Y. 200, 203; C. T. Co. v. Smith, 57 Hun, 176 ; Fischer-Hansen v. B. H. R. R. Co., 63 App.

The nature of the action and the facts, so far as material, are stated in the opinion.

The nature of the action and the facts, so far as material, . are stated in the opinion. The plaintiff corporation had no right or legal capacity to bring this action, its title and right of action haying passed to the Federal receiver before this action was commenced.

The nature of the action and the facts, so far as material, are stated in the opinion. The defendants were not the driver’s masters and are not liable, and there could, therefore, have been no question for the jury. (Maxmilian v. Mayor, etc., 62 N. Y. 160; Blake v. Ferris, 5 N. Y. 48; Baldwin v. Abraham, 57 App. Div. 67; Murray v. Dwight, 161 N. Y. 301; Lewis v. L. I. R. R. Co., 162 N. Y. 52 ; Hallett v. N. Y. C. & H. R. R. R. Co., 167 N. Y. 543 ; Catlin v. Peddie, 46 App.

Corbett, deceased. The facts, so far. as material, are stated in the opinion. The order of the Appellate Division reversing the decree of the surrogate and subjecting the shares of the brother and sister to a tax was erroneous, because those shares together did not amount to $10,000, and were, therefore, exempt from taxation.

The nature of the action anfl the facts, so far as material,, are stated in the opinion. The defendant is liable, if the representations which he made contributed in any degree to induce the party to act, no matter what other influence, facts or representations may have also contributed to so induce him.

Charles Guden, the petitioner, was elected sheriff of Kings county at the election in 1901, and thereafter duly qualified and took office.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 30, 1901, affirming an interlocutory judgment in favor of plaintiff entered upon a decision of the court at Special Term overruling demurrers to the complaint. The nature of the action, the facts, so far as material, and the questions certified are stated in the opinion.

The nature of the action and the facts, so far as material, are stated in the opinion. The Mileage Book Acts of the State of Eew York are unconstitutional and void under both state and United States Constitutions.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February 10, 1902, which reversed an order of Special Term denying a motion to vacate an order of arrest. The facts, so far as material, and the questions certified are stated in the opinion. The omission of an allegation of compliance with section 181, chapter 908, Laws of 1896, is not a jurisdictional defect.

On the 19th of July, 1897, the plaintiff, by an instrument in writing, leased his store in the city of Rochester to one Stadler for the term of one year from that date, at the rent reserved of six dollars a week.

<p>Streets — Maintenance op Leader from Building- Discharging Water upon Sidewalk Whereby Ice Is Formed Thereon. A property owner who negligently maintains a leader from the roof of a building so as to discharge water on the sidewalk, by which ice is accumulated thereon and the walk rendered dangerous, is liable in damages to any person who is injured thereby.</p>

<p>1. Pleading — Demurrer. A demurrer to a complaint on the ground that it does not state facts sufficient to constitute a cause of action will not be sustained where the facts directly alleged and those which, by fair and reasonable intendment may be implied from the direct allegations, show a cause of action.</p> <p>2. Municipal Corporations — Mew York City—Officer's Illegal Official Act—Action to Restrain. The collection of rent by the ■comptroller of the city of New York for marsh lands of a defunct town to whose rights the city has succeeded, and leases of which are invalid and illegal for collusion of former officers of the town, is an illegal official act on his part, to restrain which and prevent interference with the premises by the lessees an action may be maintained by a qualified taxpayer under chapter 301 of the Laws of 1892, providing for the maintenance, by any person or persons whose assessments amount to a designated sum, of actions against the officers of any municipality who are ■acting or who have acted for it, to prevent illegal action by them.</p> <p>3. Parties to Action to Kestrain Illegal Act of Municipal ■Officer, under L. 1892, Cu. 301. The proper parties defendant in such ■action are the comptroller as the acting fiscal official of the city, the lessees and their successors in interest, and the city of New York, which has the right to be heard upon the question whether the leases shall be set aside, but the officers of the former town whose acts are sought to be impugned ■are neither necessary nor proper parties, and a resident taxpayer of the ■city of New York who is assessed the amount required by the statute may maintain such action, although he lives in a borough of the city other than that embracing the lands described in the leases.</p>

The “ D., L. & W. Mutual Aid Society ” is a mutual benefit association incorporated under the laws of the state of Pennsylvania, but doing business in the state of ¡New York. Its membership is confined to employees of the Delaware, Lackawanna & Western Railroad Company, and “ its object is to secure assistance to its members, in case of accident, and to their families and friends in case of death.” On the 23rd of September, 1894, Eugene Gr.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered August 8, 1901, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.</p>

<p>Motion for reargument.</p>