Volume 9 — New York Miscellaneous Reports

<p>Appeal from interlocutory judgment overruling demurrer to complaint.</p>

<p>An injunction should not be granted restraining the police from interfering with a business, where there is a doubt as to whether such business is a criminal act, where it is of doubtful morality or where it is apparently contrary to the public policy of the state.</p> <p>Baseball playing on Sunday, for profit, upon private grounds, if not within the strict letter of the Penal Code, is a business that is against the public policy of the state.</p>

Proceedings to compel the removal of certain frame buildings from lots within the fire limits of the city owned by respondent.

<p>Appeal from judgment in favor of the plaintiff.</p>

<p>A judgment creditor is not confined to his remedy by action to set aside a fraudulent transfer, but may maintain an action against the debtor and his transferee to recover the damages sustained by the fraud.</p>

<p>An action upon a special agreement to pay a specified percentage upon all sums received by defendant under certain life insurance policies is not one in which the plaintiff should be required to furnish a bill of particulars, as the facts are peculiarly within the knowledge of the defendant.</p>

<p>Appeal from a judgment entered after a trial without a jury of an action for the foreclosure of a mechanic’s lien.</p>

<p>Appeal from judgment entered on verdict by direction of the court, and from an order denying a new trial.</p>

<p>A summons issued by the City Court of New York can only be served in said city, and the court obtains no jurisdiction by a service elsewhere. Irregularities in the service of a summons cannot be waived by any act of the defendant after entry of the judgment.</p>

<p>A plumber doing business in the city of New York cannot recover in an action for work, labor and services performed as such without proof that he registered in compliance with the provisions of chapter 450, Laws of 1881.</p> <p>The time to register in such cities was not extended until September, 1893, by chapter 66, Laws of 1893, as chapter 603, Laws of 1893, which was thus amended by the act of 1893, merely extended the laws applicable to those cities to other portions of the state.</p> <p>(Fitzsimons, J., dissents.)</p>

<p>Appeal from judgment in favor of defendant, entered on verdict, and from order denying motion for a new trial.</p>

<p>Appeal from two orders overruling demurrers, and from an interlocutory judgment entered thereon.</p>

<p>In an action brought upon a promissory note by a transferee, the answer alleged that the note was an accommodation one, made to enable the payee to obtain an extension of credit and to be returned, and the-defendant testified that the note was only loaned, although a receipt for rent was given therefor, and that such rent was to be paid in work. Plaintiff admitted that he had no interest in the note until after it was protested. Held,, that a direction of a verdict for the plaintiff was. error; that the question of actual consideration should have been submitted to the jury, plaintiff not being a bona fide holder before maturity.</p>

<p>Appeal from judgment in favor of the plaintiff, entered upon the verdict of a jury, and from order denying motion for á new trial.</p>

<p>In an action for rent the complaint alleged that the plaintiff leased a certain apartment to the defendant. The evidence showed that the defendant agreed to take the premises for a year to commence on a future day, for which a lease was to be drawn up, but, before that was done, defendant declined to rent the premises and the negotiations terminated. Held, that the cause of action alleged in the complaint was not established, and that a direction of a verdict for the defendant was proper.</p>

<p>One who takes a promissory note in the ordinary business way for value before maturity, and without notice as to its origin, is a Iona fide holder, • and entitled to recover thereon without regard to equities between the ' original parties thereto.</p> <p>A transfer of a note by an intermediate indorser carries with it a guaranty of its genuineness and validity, legal title and payment on presentation and demand at maturity.</p>

<p>Appeal from judgment dismissing the complaint.</p>

<p>Action upon contract.</p>

<p>In an action by a receiver of an insolvent corporation, a claim against such corporation cannot be allowed as a counterclaim or offset, unless the same accrued prior to the insolvency of the corporation and appointment of the temporary receiver.</p>

The charter of the village of Wappingers Falls, in Dutchess county, provides for a police justice in that village,, In 1890 Thomas A. Gurney was elected police justice of the village for a full term of four years. He resigned after a few months’ service. Hp to March thirteenth of this year no successor was ever elected or appointed by the board of trustees of the village to fill the vacancy so caused. The term for which Mr. Gurney had been elected expired in March, 1894.

<p>Appeal from judgment dismissing the complaint.</p> <p>Action to recover an alleged balance of salary claimed to be due to the plaintiff. Plaintiff was paid by the city in accordance with the rates fixed by the board of estimate in pursuance of section 5 of the revised charter, but claims that he is entitled to be paid at the rate fixed by chapter 182 of the Laws of 1884, on the ground that, the census showing that the population now exceeds 800,000, the compensation is governed by that act.</p>

<p>In an action for rent under a lease the complaint alleged the making of the lease, which provided for rent payable monthly in advance; that plaintiff had performed all the conditions of the lease; and that a certain sum was due for the month of September, which defendants refused to pay. The answer admitted the making of the lease, and that defendants refused to pay the amount demanded; denied all other allegations of the complaint, and set up affirmative defenses. XLeld, that' no material allegation of the complaint was denied, and that defendants had a right to the affirmative of the issue.</p> <p>Where rent is payable in advance the landlord’s right of .action is complete immediately on default of payment, regardless of anything he had agreed to do during the month, and an averment of performance by him of the conditions is immaterial, although the action is not brought until after the month has expired.</p>

<p>Plaintiff, a child four years old, was injured, while leaving defendant’s ferry boat by reason of her foot being caught in a space between the boat and bridge. On the side of the boat on which plaintiff and her mother were the floor of the deck was about a foot lower than the bridge and there was a space between them of about two inches. The evidence tended to show that the boat and bridge and the appliances thereof were the best known for such purposes, and that at the stage of the tide at which the accident occurred it was impossible to bring the boat and bridge together so as to be level, and that the space was unavoidable. Held, that no negligence on the part of the defendant was shown and that a nonsuit was proper.</p>

<p>Appeal from judgment in favor of the plaintiff, entered upon the verdict of a jury, and' from order, denying motion for a new trial on the minutes.</p>

. Action for injuries sustained by the plaintiff while getting upon an open trolley car of the defendant. Plaintiff had got upon the step of the car, and was just about to place his right foot in the car, when it suddenly started with a violent jerk, throwing him from the car and breaking his leg in three places.

<p>Appeal from judgment in favor of the plaintiff, entered upon the verdict of a jury, and from order denying motion for a new trial.</p>

<p>A child eight years old, even if mi juris, cannot be held guilty of con- ■ tributary negligence, as matter of law, in attempting to cross the track of an electric railroad when the car is fifty feet distant, but the question of such negligence is one for the jury.</p> <p>Plaintiffs intestate, a- boy eight years old, started to run across the street when a trolley car was fifty feet away and approaching at the usual speed, and was struck and killed thereby. It appeared that there was no obstruction to prevent the motorman seeing the deceased had he looked, but that he constantly kept his eyes in another direction during the whole time until the boy was struck. Held, that the evidence made a prima facie case of negligence on the part of the motorman, and that it was error to grant a nonsuit.</p>

<p>Appeal from judgment in favor of the plaintiff, entered upon the verdict of a jury, and from order denying motion for a new trial.'</p>

<p>The rule that no promise-will be implied from one partner to another respecting their common business does not apply to business independent of the partnership, or where the business may not he performed by the firm and the firm reap the benefits contemplated by the articles of copartnership.</p> <p>Where one member of a firm of attorneys, at the request of his partner, who is the executor of an estate, performs valuable services for the benefit of the estate, such services are not within the articles of copartnership, as the firm as such could not recover compensation therefor, and the law will imply a promise on the part of the latter to pay their fair value.</p>

<p>Action for an accounting and the appointment of new trustees for the residuary estate.</p>

Motion by the plaintiff to require the defendants to serve an amended answer wherein they shall separately state and number certain defenses, viz., a defense of justification and one in mitigation of damages alleged in one answer to a complaint charging a libelous publication upon the plaintiff by the defendants in their newspaper, the Buffalo Express, and also that the answer be made more definite and certain in certain particulars.

<p>An injunction will not be granted, at the suit of a holder of a very small number of bonds or shares of stock, to enjoin a large majority of the stockholders or bondholders from carrying out a plan which such majority deem to be for their benefit, unless it plainly appears that some legal right of the minority is infringed or jeopardized.</p> <p>The execution of a new mortgage and the issue of new bonds to be secured thereby and substituted for bonds secured by the old mortgage when the holders thereof will consent, in pursuance of a reorganization scheme assented to by a large majority of the bondholders, does not infringe or impair any of the legal rights of the minority bondholders who do not consent thereto.</p>

<p>A party will be granted the relief to which the pleadings and proof show he is entitled, although he has demanded too much.</p> <p>A power to dispose of property by will is sufficiently executed by the execution of a will creating trusts in the fund and giving a power of disposition by will to another; such power may be delegated.</p> <p>A trust for two lives under such will is not invalid as illegally suspending the power of alienation because of the fact that the fund was held under a trust under the original will which gave the power.</p>

<p>A lessee is liable, under his covenant to make necessary repairs, for the expense of replacing a large plate of glass which formed part of the front of the first floor of the premises, and which was, at the time of the surrender of the premises, cracked for almost its entire length, although the injury to the glass did not occur through any fault of himself or his servants.</p>

<p>Where a heater is sold with warranty or upon conditions and there is a breach of the warranty or a failure to comply witli the conditions, the purchaser has a right to return it at the place where it was delivered to him, in the absence of an express agreement that it should be returned to the possession of the vendor at some other place, and an agreement, in such case, to pay for its removal is without consideration.</p> <p>Motice of defects to agents who come to demand payment is sufficient if the fact of such notice comes to the knowledge of the vendor.</p>

This is an appeal by the defendant from an order denying a motion made by him for a new trial on the minutes of the judge presiding at the trial, and from the judgment against him herein, entered upon the verdict of a jury.

<p>Plaintiff was a laborer employed by the defendant, and was injured while moving a heavy steel plate by its falling from the clamp which held it. The clamp was fastened by a set screw, which tapered to a blunt point, with a concave depression in the end leaving a sharp rim. It appeared that the screw had been used for some years, and that the sharp edge had worn down so as to leave a smooth surface projecting on one side. There was no evidence that this tool had been inspected, and the evidence was conflicting as to whether similar accidents had happened before. Plaintiff had been employed on this work only two days before the accident. Held, that the question of the defective condition of the screw was a proper subject for the jury to pass upon, and that the court properly submitted to them. the question as to whether the defendant had performed its duty as to furnishing tools reasonably safe for the purpose for which they were designed and in keeping them in repair.</p>

<p>Appeal from a judgment entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the court.</p>

This is an appeal by the above-named relators from an order made at a Special Term of this court, directing that a judgment entered upon a remittitur from the Court of Appeals in the above-entitled proceeding be so amended as to make the costs of the proceeding, which were awarded to the relators, payable to Daniel McIntosh, who was at one time the attorney of record in the proceeding for the testatrix of the relators.

<p>The signature of the plaintiff to the verification of the complaint in an action in the Municipal Court of Buffalo is a sufficient subscription of the complaint to meet the requirements of section 459 of the revised charter of the city.</p>

<p>Plaintiff having refused to give credit to a customer for whom he had made a suit of clothes, the latter procured from defendant an order on plaintiff for the delivery thereof, and defendant, on being asked if he would pay for them, replied, “Certainly, I will pay for them,” whereupon plaintiff delivered the goods and -charged them to defendant. Held, that defendant’s promise was an original one, which made him liable as the primary debtor, and that the Statute of Frauds did not apply.</p>

<p>Appeal from judgment of the Municipal Court of Buffalo nonsuiting the plaintiff.</p>

<p>Demurrer to plaintiff’s complaint.</p>

<p>Appeal from a judgment, entered upon the verdict of a jury, and from an order' denying defendant’s motion for a new trial.</p>

<p>Appeal from a judgment.</p>

This is an appeal by the defendants from an order denying their motion for a new trial on the minutes and from a judgment entered against them in favor of the’ plaintiff on the verdict of a jury.

This is an appeal by the defendant from a judgment entered upon the verdict of a jury in favor of the plaintiff, and from an order denying the defendant’s motion for a new trial on the minutes. ,

<p>Application for a certificate of reasonable doubt.</p>

<p>Motion for an order directing the cleric of Cattaraugus county to retax the respondents’ bill of costs presented to him for taxation arising on appeal to the General Term from the Special Term, and to disallow the following items therein: Appeal to General Term before argument, twenty dollars; appeal to General Term for argument, forty dollars; increased costs as per Code Civil Procedure, section 3258, thirty dollars.</p>

Motion that a certain amount of alimony received by the plaintiff upon a judgment of separation entered without application to the court, and subsequently vacated, should be regarded in full of alimony to be chargeable to the defendant, and for other relief.

<p>It is the duty of counsel not only to present to the court all the points, upon which they rely, but to call its attention fairly and openly to the facts which are relied upon as establishing their propositions.</p> <p>A policy of life insurance contained no reference to the application upon its face, but provided for the payment of the amount thereof to the beneficiary “ upon the provisions, conditions and agreements on the back hereof, which are made a part of this contract.” The conditions referred to provided that any breach of warranty or untrue or incomplete statement in the application should render the contract void, and, further, that the contract of insurance was contained only in the policy and théapplication taken together. The application was upon one side of a. paper, and was complete and signed by the applicant, who also signed a jerles of questions on the other side of the paper, which were called declarations to the medical examiner, and which referred to “ the fOre•going application.” The application contained a warranty oí the answers made to the medical examiner, but did not provide that their falsity should avoid the contract. Held, that the application which, by the agreement, was made a part of the contract, was only that paper which was so called and which was signed as such by the insured; that the statements contained in the declarations made to the medical examiner formed no part thereof, and were mere representations and not warranties.</p> <p>In an action upon such a policy it is proper to submit to the jury the question of the materiality of the representations made to the medical examiner.</p> <p>An objection to submission to the jury of any of the representations made by the insured is of no avail, although the submission of one of them might not have been proper.</p> <p>The question whether an ordinary cold or a slight indigestion was an illness, within the meaning of a representation that the insured had not been seriously ill, is one for the jury, and cannot be passed upon as a question of law by the court.</p>

<p>Action to recover damages of the defendants for the negligent killing of the plaintiff’s intestate.</p>

<p>Failure to take a prisoner before the court or a magistrate without unnecessary delay makes the officer a trespasser ab initio, and liable for false imprisonment.</p> <p>Defendant arrested plaintiff without a warrant on Friday, and took him to the court room, but did not call the attention of the magistrate to the case as the complainant could not be found, and thereafter detained plaintiff without any direction from a magistrate until the following Monday, when he was discharged without having been arraigned. Held, that these facts rendered the arrest illegal, and the defendant a trespasser from the beginning.</p> <p>Where an officer arrests a reputable citizen, without a request or complaint, and confines him for a considerable time without process, the amount of damages to be awarded for such injury rests largely in the discretion of the jury.</p>

Motion to continue a preliminary injunction, granted by Hon. William J. G-aynob, restraining Lillian Russell from ■singing, playing, performing, dancing, or in any way or manner exercising her talents upon any stage, or with any organization, or for herself, or any person or persons or company, or in any operatic entertainment, under any management other than plaintiffs.

<p>Application for a writ of mandamus to compel the mayor of Brooklyn to issue a license to a place of public amusement.</p>

<p>A complaint upon information and belief, whether made by a police officer or any other person, is insufficient to confer jurisdiction upon a magistrate to issue a warrant of arrest.</p> <p>Where a party who has been arrested upon a warrant which the magistrate had no jurisdiction to issue demands and stands trial without raising the objection, he cannot be heard after conviction to claim that ■ the court had no jurisdiction of his person.</p>

Action against the Third National Bank of Syracuse and its directors, by certain of its stockholders, to compel the payment of a dividend out of its surplus earnings, upon the ground that the declaration of dividends was, five years ago, suddenly suspended by the present management, in bad faith, for the purpose, not only of oppressing an obnoxious minority once in control, but at the same time of obtaining an indirect pecuniary advantage to the largest stockholder and his…

Habeas oobpus to inquire into the legality of the imprisonment of relator under a conviction for assault with intent to do bodily harm.

<p>Application for writ of prohibition.</p>

Action to determine the rights of the parties to a fund in the hands of a receiver, being the proceeds of certain manufactured merchandise sold by order of the court.

Motion to continue injunction. The defendant is a fraternal organization, a domestic corporation, having its seat of government in the city of New York. It is composed of many subordinate lodges called into existence by the charter issued to them by the defendant. It has adopted a constitution and general laws for its guidance and that of its subordinate lodges.

. Action to foreclose a mortgage. Defense, fraud in procuring its execution, and that no part of the mortgage debt was due at the time of the commencement of this action.

Cebtiobari to correct the assessment roll of the town of Hew Albion, Cattaraugus county, by striking out an assessment to John H. Murphy of fifty acres of land, because the same was purchased by pension money, and was exempt from taxation.

<p>A will creating a trust provided that upon the death of the beneficiary without leaving issue the principal of the fund should form a part of the residuary estate, “ and be disposed of as the same is hereinafter disposed of.” The will then provided that the executors should sell the rest, residue and remainder of the estate and pay certain legacies, and, by the final clause, gave “all the rest and residue of my residuary ■estate, not herein otherwise disposed of," to certain infants named. Held, that the residuary estate referred to in the trust clause was the final residue which was given to the infants, and that they were entitled to the principal of the trust fund upon the death of the beneficiary without issue.</p>

<p>Application for probate of will.</p> <p>The facts appear fully in the opinion.</p>

McDonald, deceased, from selling certain real estate pursuant to the direction contained in said will. The opinion filed below is as follows:

<p>Appeal by plaintiff from order refusing to amend judgment.</p>

<p>Appeal by defendant from judgment in favor of the plaintiffs after trial of the issues at the equity term.</p>

<p>Appeal from judgment entered on verdict of a jury, and from an order denying motion for new trial.</p>

<p>Appeal from judgment entered on the verdict of a jury and from an order denying plaintiff’s motion for a new trial.</p>

<p>Appeal by defendant from judgment entered upon a verdict directed by the court, and from order denying defendant’s, motion for a new trial.</p>

Appeal by defendant from judgment in favor of the plaintiff, entered upon the verdict of a jury, and from order denying defendant’s motion for a new trial.

<p>Appeal from so much of an order as denies defendant’s motion to make the complaint more definite and certain and to separately state alleged different causes of action.</p>

Bertrand Clover leased certain premises to one Bernhard Levin, and thereafter assigned to plaintiff the rents of said premises and others to secure an indebtedness to him for legal services upon a defeasance providing that after payment of the expenses of collection of the rents, the amount due plaintiff and repairs, taxes and mortgage interest, the balance should be returned to said Clover.

Action for rent upon an express verbal renewal of a lease for a year from May 1, 1892. Defense, that the hiring was by the month. Defendant vacated the premises about December 6, 1892, and plaintiff was unable to let them until March 1, 1893. The action was brought to recover the rent for the months of October, November and December, 1892, and January and February, 1893, at fifty dollars per month. The verdict in plaintiff’s favor was for $150.

<p>'Appeal from a judgment in favor of plaintiff.</p>

<p>Appeal from a judgment entered upon a verdict.</p>

<p>Appeal from a judgment in favor of plaintiff.</p>

<p>Appeal from a judgment in favor of plaintiff.</p>

<p>Appeal from a judgment in favor of plaintiff.</p>

<p>Appeal from a judgment in favor of plaintiff, entered npon the verdict of a jury.</p>

<p>Appeal from a judgment in favor of defendants.</p>

<p>Appeal from judgment entered on verdict of a jury and from an order denying a motion for a new trial.</p>

<p>Appeal from a judgment in favor of defendants.</p>

<p>Appeal from a judgment entered upon a verdict directed by the court. Exceptions to be heard in the first instance by the General Term.</p>

<p>Appeal from an order denying a motion for a new trial.</p>

<p>Appeal from a judgment entered in favor of the plaintiff upon a direction by the trial judge, upon the opening of the defendant’s counsel, to whom was awarded the affirmative on the trial. No witnesses were called or examined.</p>

<p>Appeal from an order opening defendant’s default.</p>