Volume 9 — E.H. Smith

The facts, so far as material, are stated in the opinion. The relator was “wholly engaged in carrying on manufacturing within this state.” The making of newspapers or books is manufacturing. (Comm. v. J. B. Lippincott Co., 156 Penn. St. 513; Comm. v. Mann. Co., 150 Penn.

<p>Will Construed — Provision nor Unborn Child — Termination oe Trust with Power op Sale—Vesting op Estate. A testator who died in 1883 left a will dated in 1878, in which he appointed his wife and sister A. executrices, and gave them all his estate, real and personal, in trust to pay the wife the income during widowhood, with-a power to sell and execute a deed “jointly and not singly;” the 2d clause devised and bequeathed the remainder, upon the death or marriage of his wife, to his brother and sisters. The testator had no child at the time of making the will, and it contained no provision for after-born children. A codicil, executed in 1879, amended the 2d clause of the will by providing: “But in case of the birth of a child born to me by my said wife, then this, my last will and testament, shall remain in full force and virtue until the said child shall arrive at the age of twenty-one years, then, and in such case, I direct that in case my said wife shall be living and my widow, then the said property be divided in three equal shares, one of which shall be given to my said wife, and the other two equal shares to be given to my said child, and in case of the death of my said wife or her 'marriage before the said child shall arrive at the age of twenty-one years, then the whole of the said property to go to my said child, but in case of the death or marriage of my said wife before my child shall arrive at the said age of twenty-one years, and the said child shall not live until that age, but shall survive his mother, then and in that case the said property shall be divided in manner hereinbefore specified between my brother and two sisters or their survivor or survivors.” A child was born five months after the execution of the codicil, who still survives. The testator’s wife survived him, but has since died. The testator’s sister A. is living, and claims that the trust and power of sale were continued by the codicil until the child shall arrive at majority, and that, as surviving executrix and trustee, she can execute the power. Held (without deciding whether one trustee could execute a deed after the death of the other trustee), that the trust and power of sale terminated on the death of the testator’s widow, and that the estate then vested in the child, subject to being divested in case of death before becoming twenty-one years of age.</p>

Appeal, by certification, from an interlocutory judgment and order of the Appellate Division of the Supreme Court in the fourth judicial department, entered respectively August 30 and August 12, 1897, reversing an interlocutory judgment of Special Term overruling a demurrer to plaintiff’s complaint, and sustaining the demurrer.

The facts, so far as material, are stated in the opinion. The act does not assume to take private property for private use. (L. 1894, ch. 176; People ex rel. v. Smith, 21 N. Y. 595; Heyward v. Mayor, etc., 7 N. Y. 324; Matter of Townsend, 39 N. Y. 174; B. P. Comrs. v. Armstrong, 45 N. Y. 243; Matter of Fowler, 53 N. Y. 62; 66 N. Y. 572.) The act is constitutional. (Const.

The nature of the action and the facts, so far as material, are stated in the opinion and in the report of a former appeal (128 H. Y. 455). The court erred in finding that the fee and rental values of the plaintiffs’ property have been diminished by defendants’ acts, and that they would have increased if it had not been for the taking of the easements by the construction and operation of the railroad and its appurtenant structures over the avenue.

The facts, so far as material, are stated in the opinion. The fact that the relator, through his lack of counsel, did not take technical exceptions to the gross irregularity which prevailed throughout the trial cannot prejudice him when the proceedings are brought before the courts for review. (Code Civ. Pro. § 2140; People ex rel. v. Hayden, 7 Misc. Rep. 278 ; People ex rel. v. Martin, 152 N. Y. 311; People ex rel. v. Roosevelt, 6 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The judgment appealed from is erroneous and should be reversed on the authority of Hatch v. Nat. Bank (147 N. Y. 184). (Parker v. Conner, 93 N. Y. 118; Hutchinson v. Manhattan Co., 150 N. Y. 250; Stephens v. Board of Education, 79 N. Y. 183; Southwick v. F. Nat. Bank, 84 N. Y. 421; Henry v. Allen, 151 N. Y. 1; Pom. Eq.

It was also adjudged that the misconduct of the defendant was calculated to, and actually did, defeat, impair, impede and prejudice the rights and remedies of the plaintiff to her actual loss or injury to the extent of the costs and expenses incurred or suffered by her by reason thereof, and to the extent of the value of the plaintiff’s land appropriated by the defendant in the construction and maintenance of the embankment for its railroad in front of and on her premises,…

<p>Appeal from a judgment of the late General Term of the Supreme Court in the fourth judicial department, entered . December 11,1894, affirming a judgment in favor of plaintiffs entered upon the report of a referee.</p> <p>This action was brought to recover the freight upon a cargo of lumber.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The rights, duties and obligations of the parties are to be adjudged by the charter party or agreement of affreightment, which is a complete agreement, containing all the elements of a contract of affreightment, and not by the bill of lading, and by that agreement the plaintiffs, who are common carriers, are insurers (except as against the acts of God and the public enemies), and liable for the loss of the lumber. (Dorr v. N. J. S. N. Co., 11 N. Y. 485; Swift v. P. M. S. Co., 106 N. Y. 206; Guillaume v. G. T. Co., 100 N. Y. 491; Kenney v. N. Y. C. & H. R. R. R. Co., 125 N. Y. 422; 106 N. Y. 527; Bostwick v. B. & O. R. R. Co., 45 N. Y. 712; Wheeler v. N. B. & C. R. R. Co., 115 U. S. 29 ; G. F. Ins. Co. v. M. & C. R. R. Co., 72 N. Y. 90; Guillaume v. H. & A. P. Co., 42 N. Y. 212; Nelson v. H. R. R. R. Co., 48 N. Y. 498; Blossom v. Dodd, 43 N. Y. 264.) The loss of the lumber did not occur by the act of God or the public enemy, and, therefore, the plaintiffs are liable under the charter party for the lumber lost. (Michaels v. N. Y. C. R. R. Co., 30 N. Y. 564 ; Angell on Common Carriers, 180, 214; 1 Pars, on Cont. 634-648; Canfield v. B. & O. R. R. Co., 93 N. Y. 532; Clark v. Barnwell, 12 U. S. 272.)</p> <p>In absence of any express condition in the charter party to the contrary, the presumption of law is that the lumber was to be transported subject to the usual custom, viz., the “perils and dangers of navigation excepted.” (Abbott on Shipping, 352, 353, 374, 375, 380-382; McPherson v. Cox, 86 N. Y. 472.) The consignor of goods to a distant consignee, who is the owner, is the agent of the consignee for the purposes of shipping. (Nelson v. H. R. R. R. Co., 48 N. Y. 498 ; Shelton v. M. D. T. Co., 59 N. Y. 258; Jennings v. G. T. R. Co., 127 N. Y. 447.) The plaintiffs, as common carriers, are not liable for any loss or damage to the cargo when the loss or damage was occasioned by fire, the act of God or the dangers and perils of the lakes, rivers and navigation. (Heyl v. Inman S. S. Co., 14 Hun, 564; Redpath v. Vaughan, 52 Barb. 489 ; Price v. Hartshorn, 44 N. Y. 94; Dunham v. Bower, 77 N. Y. 76; Park v. Preston, 108 N. Y. 434; Gunther v. Colin, 3 Daly, 125; Gris-wold v. N. Y. Ins. Co., 3 Johns. 321; U. S. Stat. at Large, ch. 105; Abbott on Shipping, 380-382.) The bill of lading given by the shipper (the defendant or its agent) to the carrier and accepted by him formed a portion of the contract for the transportation of the lumber, and, in the absence of fraud, imposition or mistake, the parties are concluded by its terms as there expressed. (Long v. N. Y. C. R. R. Co., 50 N. Y. 76; Kirkland v. Dinsmore, 62 N. Y. 171; Hill v. S., B. & N. Y. R. R. Co., 73 N. Y. 351; Dayton v. Parke, 142 N. Y. 391.) The cargo of the American, by the terms of the bill of lading, was to be delivered to the defendant upon the payment of freight, and the defendant, having received the lumber, is liable for freight. (Abbe v. Eaton, 51 N. Y. 410; Davison v. City Bank, 57 N. Y. 81; Sheets v. Wilgus, 56 Barb. 662.) The portion of the cargo that was swept over-hoard was lost by the act of God, i. e., the storm, and that is ■sufficient excuse for the non-delivery of the same, even if there had been no bill of lading whatever. All parties are presumed to contract with reference to those causes over which human agency has no control. (Colt v. M'Mechen, 6 Johns. 160 ; McArthur v. Sears, 21 Wend. 190; Dorr v. N. J. S. N. Co., 11 N. Y. 485: Merritt v. Earle, 29 N. Y. 115; Howe v. O. & S. R. R. Co., 56 Barb. 121.) The referee, upon conflicting evidence, having determined, as a matter of fact, “ that by the act of God, as well as the perils of the sea,” the lumber was lost overboard, without fault or neglect of the said plaintiffs or their crew, servants or agents, and that the said plaintiffs or their crew or employees in no wise contributed to said loss; and such determination having been approved by the General Term, said fact is deemed to have been conclusively established upon a review of the judgment in this court. (Crim v. Starkweather, 136 N. Y. 635 ; White v. Benjamin, 150 N. Y. 264 ; Belger v. Dinsmore, 51 N. Y. 166; Redfield on Carriers, 22, 52; Squire v. N. Y. C. R. R. Co., 98 Mass. 239 ; The Delaware, 1 Wall. 570.) The court should award damages by way of costs for the delay. (Code Civ. Pro. § 3251, subd. 5.)</p>

• The facts, so far as material, are stated in the opinion. The Kentucky judgment is a bar to this action. (U. S. Const, art. 4, § 1; U. S. R. S. § 905; Pennoyer v. Neff, 95 U. S. 914; Arndt v. Griggs, 134 U. S. 316; Lynch v. Murphy, 161 U. S. 247; Nelson on Divorce, § 28; 2 Kent’s Com. 460; Scudder v. U. Nat. Bank, 91 U. S. 406; L. & G. W. S. Co. v. P. Ins.

the second judicial department, entered December 17, 1897, affirming an order of the Surrogate’s Court of Westchester county dismissing the petition of the appellant for leave to intervene and file objections to the probate of the will of Joseph Thorne, deceased. The facts, so far as material, are stated in the opinion. The adoption in the case at bar was lawful, and has the effect of an adoption under chapter 272, Laws of 1896.

The nature of the action and the facts, so far as material, are stated in the opinion. Defendant’s motion for dismissal of plaintiff’s complaint at the opening of the trial, on the ground that under the statute in force at the time the action was commenced the complaint did not state a cause of action, should have been granted. (L. 1892, ch. 688; L. 1890, ch. 564 ; Const.

' Appeal from an order of the General Term of the late Superior Court of the city of New York, entered January 12, 1895, and from the judgment entered thereon, reversing a judgment in favor of defendant, entered upon a verdict and granting a new trial. This action was brought by plaintiff, as the surviving partner of the firm of Tisdell & Whittlesey, upon a New York standard fire insurance policy issued by the defendant to the plaintiff’s firm.

<p>1. Sale — Executory Contract—Breach op Warranty. Where a machine has been delivered to the vendee, under an executory contract of sale, with an express warranty of its capacity, without any agreement as to its retention or return, the vendee does not lose his right to recover damages for breach of the warranty, by retaining the machine after discovering its inefficiency, and may avail himself of that remedy, by way of counterclaim, when sued for the price.</p> <p>2. Measure op Damages—Absence op Basis op Damages. The measure of the vendee’s damages, in such case, is the difference between the value of the machine if it had corresponded with the warranty and its actual value; and a recovery of the price by the vendor cannot be overthrown on appeal, by reason of the disallowance of the vendee’s counterclaim for damages for breach of warranty, when the record discloses no proof of the actual value of the machine.</p> <p>3. Value op Machine. The mere fact that a varnishing machine, warranted to varnish a certain number of sheets of labels per day, would varnish only a certain smaller number, does not furnish a basis for fixing the actual value of the machine as compared with the contract price.</p> <p>4. Necessity op Proop op Difference in Values. Where, in an action involving a claim by the vendee for damages for breach of warranty on the sale of a machine, a referee or jury would not be able to determine the difference between the contract price and the actual value in the absence of data furnished by witnesses competent to testify upon the subject, the vendee is bound to give that evidence.</p> <p>5. Findings. A claim by the vendee of a machine, for damages for breach of the vendor’s warranty of the capacity of the machine, is not aided, on appeal, by findings that he paid out certain sums for repairs on the machine and for work spoiled, where the record does not show that such items were attributable to the breach of warranty.</p>

The notice of appeal also brings up for review an order of the General Term entered February 15, 1895, dismissing an appeal from two intermediate orders. This action was brought to recover commissions upon the purchase price of certain sugar refineries, alleged to have been earned under an agreement with the defendant. The facts, so far as material, are stated in the opinion.

The action was upon a policy of fire insurance for one thousand dollars, issued by the defendant October 1, 1892, insuring the goods of the plaintiffs in their store at Ilaverstraw, M. Y. It was a Mew York standard policy, and prohibited other insurance unless the consent of the company was indorsed thereon. It also provided that none of its agents should have power to waive any of its provisions except by a written indorsement on the policy.

This action was brought to recover the amounts alleged to be due upon twelve promissory notes.

<p>eal from a judgment of the late General Term of the Supreme Court in the third judicial department, entered February 27, 1895, affirming a judgment in favor of the defendant entered upon a verdict directed by the court.</p> <p>By this action the plaintiff sought to recover damages from the defendant,' a physician and surgeon, for negligence in treating his knee, which had been injured by an accident. On the trial, at the close of the evidence given in behalf of the plaintiff, a motion for a nonsuit was made and denied, but at the close of all the evidence the court directed a verdict in favor of the defendant. After an affirmance by the General Term, without an opinion, the plaintiff came here.</p> <p>The facts appear in the opinion.</p> <p>It was error for the court to direct a verdict in favor of the defendant, because the evidence strongly tended to show that the defendant, in his treatment of plaintiff, either did not possess requisite skill, or,, if he did, did not use it, and was guilty of negligence in his diagnosis and treatment. (Carpenter v. Blake, 10 Hun, 358 ; 75 N. Y. 12; Patten v. Wiggen, 2 Am. L. Reg. [N. S.] 403 ; 4 Wait’s Act. & Def. 682; Smothers v. Hauks, 34 Iowa, 286 ; Wells v. W. D. Assn., 9 N. Y. S. R. 456 ; Barton v. Govan, 4 N. Y. S. R. 876; Link v. Sheldon, 48 N. Y. S. R. 820 ; Baird v. Gillett, 47 N. Y. 186 ; Harris v. Perry, 89 N. Y. 311.) The learned trial court erred in accepting as conclusive the expert evidence, and particularly in overlooking the important particulars in which it tended to sustain plaintiff’s case. (1 Whart. on Ev. § 454; Templeton v. People, 3 Hun, 357; 60 N. Y. 643.)</p> <p>The plaintiff wholly failed to show that his condition was caused by the treatment of defendant. It was necessary to prove the injury would not have been present or to the same degree, except for the negligence of defendant. (25 N. Y. S. R. 482.) The medical man is not responsible for errors of judgment or mere mistakes in case of reasonable doubt and uncertainty. (McClelland’s Civil Mal. 215.)</p>

affirming, as modified, an order confirming the report of a referee fixing damages under an injunction. The nature of the action and the facts, so far as material, are stated in the opinion. There has been no breach of the condition of the undertaking. (Palmer v. Foley, 71 N. Y. 106; Leavitt v. Dabney, 9 Abb. Pr. 373 ; Randall v. Carpenter, 88 N. Y. 293.) The order of reference should not have been granted.

The nature of the action and the facts, so far as material, are stated in the opinion. The receipts are not in the nature of an estoppel or contract and are open to explanation. (Ryan v. Ward, 48 N. Y. 207; Buswell v. Poineer, 37 N. Y. 312.) The contract was drawn by the defendant and presented to the plaintiff for signature. It was in the words chosen by the defendant to express the meaning and should be construed in case of ambiguous meaning against the party drawing it.

54, and adjudging a chattel mortgage made by one George W. Sawyer, not a party to the action, to be a second mortgage and a lien subordinate to the mortgage executed by said Sawyer to the plaintiff. The facts, so far as material, are stated in the opinion. The defendants Isaac Lewis & Sons, being innocent bona fide purchasers of the Iba mortgage, for value, without knowledge or notice of any alleged prior mortgage, their title as first mortgagees is good. (Moore v. M. Nat.

The judgment appealed from enjoined the defendant from malting any use of the plaintiff’s reference hooks or confidential sheets, and from copying, appropriating, printing, publishing or using, in any way, information taken therefrom, or furnishing such information to others.

08, a two months’ term of imprisonment and costs. The Appellate Division struck out the direction for imprisonment and affirmed the judgment as so modified. The order which the defendants seek to review is not appealable to this court. (Const, art. 6, § 9; Code Civ. Pro. §§ 190, 2273 ; Pitt v. Davison, 37 N. Y. 235; E. R. Co. v. Ramsey, 45 N. Y. 637; Brinkley v. Brinkley, 47 N. Y. 40; People v. A. L. & T. Co., 150 N. Y. 117.)

The nature of the action and the facts, so far as material, are stated in the opinion. The court below erred and its judgment should be reversed. (Holmes v. D'Camp, 1 Johns. 37; Milliman v. R. R. Co., 3 App. Div. 109; Byrne v. R. R. Co., 58 N. Y. S. R. 128 ; Carpenter v. P. R. R. Co., 13 App. Div. 328 ; Hastings v. B. L. Ins. Co., 138 N. Y. 473; McAllister v. N. E. M. L. Ins. Co., 101 Mass. 558 ; Miller v. B. L. Ins. Co., 12 Wall. 285 ; Stepp v. Nat. L. Ins.

This action was brought to quiet the title to certain marsh lands at Rockaway, in the town of Hempstead, Queens county,, and the specific relief sought was an injunction to restrain acts of ownership by the town. The facts, so far as material, are stated in the opinion. The resolution is not a grant, nor does it pretend or purport to be a grant of the premises or of any premises to any individual person or persons, either jointly or collectively.

<p>Appeal to Court, op Appeals—Final Order. An order of the Appellate Division which not only reverses an order of the Special Term, quashing a writ of certiorari to review an assessment, hut also reinstates the writ and remits the proceedings to the Special Term for its determination upon the merits, is not an order finally determining a special proceeding, and, hence, is not appealable as of right to the Court of Appeals. (Code Civ. Pro. § 190.)</p>

Appeal by the defendant, James E. Cuming, from a final order of the Appellate Division of the Supreme Court in the first judicial department, entered November 17, 189Y, reversing an order of Special Term affirming a report of a referee in surplus proceedings. The facts, so far as material, are stated in the opinion.

The facts, so far as material, are stated in the opinion. The assessment of the relator’s real estate, known as Hos. 50 and 52 East Fourteenth street, is unequal, in that the assessments have been made at a higher proportionate valuation than the assessment of other property on the same roll by the same officers.

The nature of the order and the facts, so far as material, are stated in the opinion. It is a jurisdictional requirement to the maintenance of an action upon a judgment that an order granting leave to bring the same shall first be obtained. (Code Civ. Pro. § 1913 ; Farish v. Austin, 25 Hun, 430 ; G. S. Bank v. Carrington, 89 N. Y. 632; Cook v. Thurston, 18 Misc. Rep. 506 ; Pennoyer v. Neff, 95 U. S. 714; Graham v. Spencer, 14 Fed.

The facts, so far as material, are stated in the opinion. The debts for which no allowance or deduction was made were not incurred in the purchase of non-taxable goods.

This action was brought to obtain a decree directing the • defendant Donovan to deliver up for cancellation and to cancel of record a certain mortgage, held and owned by him upon lands alleged to be owned by the plaintiffs in the city of Hew York, as a cloud upon the plaintiffs’ title thereto. The facts, so far as material, are stated in the opinion.

<p>Appeal from a judgment of the late General Term of the Supreme Court in the first judicial department, entered February 25, 1895, affirming a judgment in favor of defendants entered upon a dismissal of the complaint on trial at Circuit.</p> <p>This action was brought to recover the amount alleged to have been paid for five.second mortgage bonds of the Knickerbocker Brewing Company, the purchase whereof was claimed to have been induced by false representations made by the defendants to the plaintiff’s agent.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>It was error to direct anon-suit before the close of the plaintiff’s case. (6 Am. & Eng. Ency. Pl. & Pr. 941; Carrier v. Dorrance, 19 S. C. 30; Rogers v. Madden, 2 Baily [S. C.], 321, 323; Ellis v. O. L. Ins. Co., 4 Ohio St. 628; Hickman v. King, Cheves [S. C.], 138 ; 2 Rumsey’s Pr. 266 ; Lomer v. Meeker, 25 N. Y. 361; Rudd v. Davis, 3 Hill, 287; 7 Hill, 529 ; Ernst v. H. R. R. R. Co., 24 How. Pr. 97; Hansen v. Burt, 10 Misc. Rep. 235 ; Miller v. House, 63 Iowa, 82; Minzesheimer v. Bruns, 1 App. Div. 321.) Defendants on appeal must stand on the grounds for dismissal stated in their motion. (Binsse v. Wood, 37 N. Y. 526; Trustees of St. Mary's Church v. Cagger, 6 Barb. 576; Castle v. Duryea, 32 Barb. 480; Underhill v. Pomeroy, 2 Hill, 603; 7 Hill, 388; Booth v. Bunce, 31 N. Y. 246; 2 Rumsey’s Pr. 290; Webb v. Odell, 49 N. Y. 583; Folk v. Beeckman, 2 N. Y. Supp. 650; Devoe v. Brandt, 58 Barb. 493; Flandrow v. Hammond, 148 N. Y. 129; Quinlan v. Welch, 141 N. Y. 159; Lafka v. Levensohn, 18 Misc. Rep. 202; Knell v. Stephan, 48 N. Y. S. R. 190 ; Werner v. City of Rochester, 149 N. Y. 563.) The complaint stated a cause of action and could not properly be dismissed before close of plaintiff’s case. (16 Am. & Eng. Ency. of Law, 737; Walker v. Supple, 54 Ga. 178; Wilson v. P. P. Co., 14 Misc. Rep. 514; Johnson v. Girdwood, 7 Misc. Rep. 651, 652; Sheridan v. Jackson, 72 N. Y. 170; Kley v. Healy, 127 N. Y. 555; Wetmore v. Porter, 92 N. Y. 76; Stewart v. Hamilton, 3 Robt. 672; Treadwell v. Deming, 10 Misc. Rep. 232.) The plaintiff is entitled to maintain this action before maturity of the bonds. (Code Civ. Pro. § 382, subd. 5; Miller v. Wood, 116 N. Y. 351; Cross v. Devine, 46 Hun, 421; Thomas v. Dickinson, 67 Hun, 351; 47 N. Y. S. R. 209; Vail v. Reynolds, 118 N. Y. 302; Yeomans v. Bell, 151 N. Y. 230 ; Currier v. Poor, 84 Hun, 45.)</p> <p>The complaint was properly dismissed because the testimony showed that plaintiff had sustained no actual injury or damage. (Kountze v. Kennedy, 25 N. Y. Supp. 682; M. R. R. Co. v. M. R. Co., 11 Daly, 373; Vail v. Reynolds, 118 N. Y. 297; Stevens v. Hyde, 32 Barb. 171; Brackett v. Griswold, 112 N. Y. 454; 3 Wait’s Act. & Def. 442; Taylor v. Guest, 58 N. Y. 262; Stevens v. Huber, 52 N. Y. S. R. 856 ; Pomeroy Eq. Jur. [2d ed.] § 898; Kerr on Fraud & Mistake, 325.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. When a policy is issued with full knowledge on the part of the underwriter of facts in direct conflict with the statements on the same subject in the application, it is reasonable to assume that there was no intention to insist upon the condition or claim a forfeiture under it. (McNally v. P. Ins. Co., 137 N. Y. 396; Forward v. C. Ins.

The nature of the action and the facts, so far as material, are stated in the opinion. By a settled rule of equity, as well as by intention and express dedication, the unliquidated interest of Nicholas Albert remaining in the business was at the risk of the business, and the rights of Nicholas were subordinate to the rights of creditors of the new, as well as of the old, firm. He had no interest in the assets as against creditors of the new firm.

1895, affirming a judgment in favor of defendants entered upon a decision of the court dismissing the complaint upon the merits on trial at Special Term. The nature of the action and the facts, so far as material,, are stated in the opinion.

This was an action brought to foreclose a mechanics’ lien. The facts, so far as material, are stated in the opinion. The plaintiff lost its lien for the reason that it did not commence an action by service of the summons upon the principal debtor, Mathias Theriault, within the ninety days after, filing its notice of claim. (L. 1882, ch. 410, § 1827; Henry v. Lynch, 1 N. Y. Supp. 780; Smith v. Gault, 5 Month. Bull., May, 1893; Kelsey v. Combe, 50 How. Pr. 358 ; Code Civ.

<p>Sale of Land — Unmarketable Title — Rejection by Purchaser. A pending action and lis pendens filed justify the rejection of title by the purchaser of land, when the complaint states a good cause of action affecting the land. The purchaser is not required to go outside the complaint and look up the evidence oa which the action is based and determine whether it is maintainable.</p>

The action was to recover for a quantity of red sandstone alleged to have been sold and delived by the plaintiffs to the defendant. It was alleged in the complaint that the contract, upon which this action was based, was made on behalf of the defendant by Charles I). Swan. The answer denied the allegations of the complaint, and specially alleged that Swan was not the defendant’s agent and had no authority, express or implied, to make the contract for him or in his name.

The nature of the proceeding and the facts, so far as material, are stated in the opinion. Mr. Huntington had a Tight under the statute to set off his claim for money loaned to Hatch prior to the assignment against the claim of Hatch’s .assignee for his proportion of the money collected by Huntington in the Baltimore and Canadian suits under the agreement of June 24, 1886. (Code Civ.

The tax was assessed under the provisions of chapter 542, Laws 1880, as amended, and under article nine of the present Tax Law (Cli. 908, Laws 1896). The amount of the tax was originally fixed at $2,241.24 for the six years preceding October 31,1896.

order of the late General Term of the Supreme Court in the second judicial department, entered March 5, 1895, affirming an order of Special Term directing an assignee of the purchaser at a partition sale to complete the purchase. The facts, so far as material, are stated in the opinion. The order appealed from is reviewable here. (Code Civ.

<p>1. Act to Prevent Monopolies—Proceeding for Examination of Witnesses not a Special Proceeding. A proceeding for the examination of witnesses before the commencement of an action, under the act to prevent monopolies in articles or commodities of common use (L. 1897, ch. 383), is not a special proceeding within the meaning of sections 3333 and 3334 of the Code of Civil Procedure.</p> <p>2. Appeal — Order Vacating Order for Examination. An order of the Appellate Division affirming an order vacating an order for the examination of witnesses granted ex parte by a justice of the Supreme Court under section 5 of the Act to Prevent Monopolies, is not an order finally determining a special proceeding and is not appealable to the Court of Appeals.</p> <p>3. Possible Discretionary Order. Where there is nothing in the record to show that the vacating order was not made by the justice in the exercise of his discretion, the order is not appealable to the Court of Appeals.</p> <p>4. Constitutionality of Law not Considered unless Essential to Determination of Appeal. The Court of Appeals will not consider questions involving the constitutionality of a law unless such questions are essential to the determination of the appeal.</p>

This action was brought to recover damages for breach of contract and to compel specific performance. The facts, so far as material, are stated in the opinion. The evidence received on the question of damages was incompetent, and the rule of damages adopted by the referee was erroneous.

On November 17, 1871, Robert Auld was the owner of an unimproved lot on West Forty-sixth street in the city of New York, known as lot NTo. 417. At the same time Philip C. Agnew was the owner of an adjacent lot, known as lot No. 415, which was also unimproved.

<p>1. Appeal—Inferences in Favor of Party Nonsuited or against Whom Verdict is Directed. A party nonsuited or against whom a verdict is directed is entitled, on review, to the most favorable inferences deducible from the evidence, and all contested facts are to be treated as established in his favor.</p> <p>2. Vendor and Purchaser — Rejection of Title — Subsequent Reliance on New Objections. A purchaser of real estate who makes specific objections to the title on the law day, which are unfounded, cannot subsequently raise a new objection, even if it is valid, where it is one that could have been obviated by the vendor.</p> <p>3. Failure of Purchaser to Tender Performance—Dependent and Concurrent Acts. The failure of a purchaser to offer or tender performance on his part or demand performance by the vendor at the time and place agreed upon for performance will defeat his attempt at rescission because of incumbrances on the property, where the contract provides that the payment of the unpaid consideration and the transfer of title shall be dependent and concurrent acts, and the vendor tenders a sufficient deed and offers to perform any and every act necessary to full and complete performance of the contract on his part, and it does not appear that he is unable to do so.</p> <p>4. Existence of Removable Incumbrance. The mere existence of an incumbrance on the property which it is within the power of the vendor to remove on the day fixed for the performance of an executory contract for the conveyance of real estate does not constitute a breach of the contract on his part.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. Only upon the theory of the perpetration of a fraud by the incorporators of the company can the plaintiff recover from the defendant in this action, (L. S. I. Co. v. Drexel, 90 N. Y. 87; N. T. W. Co. v. Gilfillan, 46 Hun, 248; Douglass v. Ireland, 73 N. Y. 100; Thurston v. Duffy, 38 Hun, 327; Blake v. Griswold, 103 N. Y. 429; Brockway v. Ireland, 61 How. Pr. 372; Draper v. Beadle, 16 Wkly.

<p>1. Sale—Vendor as Agent op Vendee in Making a Resale on Breach op Contract. To say that the vendor of personal property becomes the agent of the vendee in making a resale of property which the latter refuses (o accept under his contract, in order to ascertain the amount of damages, is to lie regarded at most as a mere fiction of law, and the beneficial title does not pass to the vendee.</p> <p>2. Receivers—Refusal to Accept Property under Contract. The title to property which a receiver refuses to accept and pay for under the contract does not pass to the receiver so as to preclude the vendor from making a resale of the property without leave of court, in order to ascertain the amount of his loss by breach of the contract.</p> <p>3. Resale of Property on Breach of Contract by Receiver, not Contempt. The resale by a vendor, to fix the amount of his damages on the refusal of a receiver of the vendee to receive and pay for the property, is not a disobedience of the order appointing the receiver and prohibiting the transfer of any of the property of the vendee, except to deliver it to the receiver.</p>

The nature of the action and the facts, so far as material, are stated in the opinions. Held: or because there may be some' doubt as to whether it was held in such district or out of it. (Ex parte Heath, 3 Hill, 42.)

<p>1. Negligence — Child Struck by Electric Car — Running across Track. A motorman of an electric car who sees little girls near the track start to run across it, when they have time to get across if they do not fall, is not negligent in failing to make any attempt to stop 'the car until one of them falls.</p> <p>2. Mode op Stopping Electric Car. The use of a brake by a motorman to stop an electric car in an emergency, instead of the use of the particular appliance used to govern electrical motive power, is not negligence.</p>

The nature of the action and the facts, so far as material, ■ are stated in the opinion. The Dos Hermanos was unseaworthy. There was no evidence of her seaworthiness to go to the jury, and the court erred in submitting that question to them and in refusing to dismiss the complaint or to direct a verdict for the defendant on that ground. (1 Phillips on Ins. [5th ed.] § 695; C. M. Co. v. N. M. Co., 5 L. T. [N. S.] 504; Burges v. Wickham, 3 B. & S. 669; Warren v. U. S. Ins.

This was an action in ejectment to recover the possession of an undivided one-seventh part of certain lands situate in the town of Mamaroneck, in the county of Westchester. The facts, so far as material, are stated in the opinion. The action to foreclose the mortgage was brought and maintained throughout upon the theory that the release left subject to the mortgage the premises that were in fact released by it. (Byrnes v. Palmer, 18 App. Div. 1; Clapp v. Byrnes, 3 App.

This was an action in ejectment to recover the possession of an undivided one-seventh part of certain lands situate in the town of Mamaroneck, in the county of Westchester.

Appeals by the defendants Thomas W. Kiley & Co., Graves & Steers and Joseph Edwards & Co., from an order of the late General Term of the Supreme Court in the second judicial department, made February 20, 1895, reversing a judgment of the Special Term in favor of the several appellants and granting a new trial as to them.

Appeals from two orders of the Appellate Division of the Supreme Oourt in the first judicial department, entered January 1, 1898, reversing orders of the Special Term which denied the application of the petitioners for peremptory writs of mandamus. The nature of the proceedings 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 uncontradicted evidence and the language of the wills ■clearly prove an agreement to execute mutual wills enforceable in equity. [Parsell v. Stryker, 41 N. Y. 480; Johnson v. Hubbell, 10 N. J. Eq. 332; Dufour v. Pereira, 1 Dick. 419; Ex parte Day, 1 Bradf. 476 ; 1 Jarman on Wills [5th ed.], 18; 2 Hargrave’s Jurid.

The nature of the action and the facts, so far as material, are stated in the opinion. The learned trial judge erred in receiving testimony under exception, bearing on the construction of the gutter junction, as to its sufficiency or insufficiency for the purpose for which it was designed.

This action was brought by the plaintiffs, judgment creditors of Louis- P. Beck, against him, and William H. Beck and H. Israel Weinberg, to set aside a bill of sale executed by Louis P. to William H. Beck, and an assignment without preferences, for the benefit of creditors, executed by Louis P. Beck to the defendant H. Israel Weinberg. The facts, so far as material, are stated in the opinion and in the report of a former appeal, 129 E. Y. 1.

The nature of the action and the facts, so far as material, are stated in the opinions. If the plaintiff was entitled to hold the bonds only as security for the payment of the notes in suit, the counterclaim was established and the court erred in directing a verdict for the plaintiff. (Halpin v. P. Ins.

<p>1. Appeal — Temporary Injunction Order. An order of the General Term, affirming or reversing an order granting or denying a temporary injunction, cannot be reviewed by the Court of Appeals unless it appears from the record that the element of discretion was excluded, or that the injunction was sustained when in fact there was no power to grant it, or was set aside expressly upon that ground.</p> <p>2. Non-review able Order. In an action brought by the owner of land sought to be acquired by a municipality for a public improvement, to restrain the municipality from applying for the appointment of new commissioners of appraisal after the original commissioners had reported, upon the ground that the charter gave no such power, or, if it did, that it was to that extent unconstitutional, an order of the General Term vacating a temporary injunction is not reviewable by the Court of Appeals when silent as to the ground upon which the injunction was •denied.</p>

This proceeding was an accounting by the trustees under the will of Levin R. Marshall, deceased. The testator, Levin R. Marshall, died on July 23, 1870, leaving a last will and testament which he had executed on the day of his death. He left a widow, Sarah E. Marshall, and six children, namely, George M. Marshall, Josephine E. Ogden, William St. John Elliott Marshall, Mary D. Marshall, John N. Marshall and Stephen Duncan Marshall.

Motion to amend remittitur as follows: “ The judgment of the.