Volume 90 — New York Miscellaneous Reports

<p>Workmen’s Compensation Law — intention of legislature under — when employee may bring action to recover for injuries sustained in hazardous employment.</p> <p>It cannot be assumed that by the Workmen’s Compensation Law (Laws of 1914, chap. 41) the legislature intended to deprive an employee of the right to recover damages for injuries not constituting disability within the meaning of said statute and thereunder an employee may bring an action to recover for injuries received in a hazardous employment by a bite from a horse necessitating amputation of a part of plaintiff's ear.</p>

<p>Motions and orders — motion to put case on short cause calendar — pleading — motion to vacate order.</p> <p>Where on motion to put a ease on the short cause calendar the moving affidavits state that plaintiff would need but one or two witnesses; and the opposing affidavits claim that the defense would require ten or twelve witnesses, but neither side showed what was expected to be proved by their witnesses, nor the probable duration of their testimony, but the court with the pleadings before it could consider the nature of the action and the character of the defense as well as the affidavits, it is a matter of discretion to determine whether or not the ease could be tried within the two-hour time limit.</p> <p>Where, at the time said motion was made, a motion by defendant to compel plaintiff to serve a reply to certain defenses was undetermined, and no order in reference thereto had been made or entered, an order granting the motion to put the cause on the short cause calendar was -not prematurely made.</p> <p>An order granting defendant’s motion to compel plaintiff to serve a reply to certain defenses properly provided that the issues remain as of the original date, the ease to retain its position on the calendar.</p> <p>Where plaintiff, in the erroneous belief that his motion to put the case on the short cause calendar had been prematurely granted, moved to vacate it, and it was vacated on payment of costs and disbursements, a further order placing the case on the short cause calendar was improperly granted, no order having been entered on plaintiff’s motion to put the case on the short cause calendar.</p> <p>Pendleton, J., dissents.</p>

Reargument on an appeal from a final order rendered in the Municipal Court of the city of New York, borough of Manhattan, second district, directed for the tenant and against the landlord on. an agreed state of facts.

<p>Appeal from a judgment of the City Court of the city of New York for $1,245.36, entered upon the verdict of a jury and from an order denying a motion for a new trial on the minutes.</p>

<p>Appeal from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, after a trial by the court without a jury.</p>

<p>Motion to vacate injunction.</p>

<p>Motion to compel examination of witness before trial and to produce books and papers.</p>

<p>Code Civ. Pro. § 803, as amended in 1913 — motion for inspection of defendants’ plant in action for causing death by wrongful act denied, but without prejudice.</p> <p>Where in an action to recover for causing the death of plaintiff’s intestate by wrongful act an allegation of the complaint that he was injured to his death while engaged in moving a heavy safe is followed by general allegations of negligence on the part of defendants, but there is no allegation that he was injured while using any particular tool or appliance, a motion under section1 803 of the Code of Civil Procedure, as amended in 1913, for the inspection of defendants’ freight house and all the appliances, ropes, etc., and all other implements under defendants’ control with which plaintiff’s intestate was working when injured, and for permission to measure and photograph the same, will be denied, but without prejudice.</p>

<p>Actions — trustee sued as individual — demurrer.</p> <p>Judgment—who concluded hy.</p> <p>Creditor’s action — exhausting legal remedies — preference by insolvent debtor.</p> <p>Where the relief demanded in an action brought against a trustee for creditors individually, by one of said creditors to restrain payment to the others of a fund alleged to have been placed in the trustee’s hands by the debtor, is that the defendant personally shall perform the duties of trustee in respect to the fund which it is alleged he received as trustee, the complaint is demurrable on the ground that there was a defect of parties, and also on the ground that it did not state facts sufficient to constitute a cause of action against defendant; a cause of action against an individual being distinct from a cause of action against him as trustee or representative.</p> <p>The insolvent debtor having the right to be heard on the question of his liability to plaintiff and the other creditors having the right to have that question litigated between plaintiff and the insolvent debtor the latter is a necessary party to the action.</p> <p>A suit against one sued as an individual does not bind him as trustee nor does a judgment against one sued in a representative capacity conclude him in a subsequent action brought by or against him as an individual although the same identical issue was involved and the decision in the first action was upon the merits.</p> <p>A creditor at large cannot under the rules governing equitable actions reach the assets o£ his debtor without having first exhausted his remedies at law.</p> <p>An insolvent debtor has the right to pay any of his creditors to the exclusion of others acting in good faith and the complaint herein is demurrable no fraud being alleged.</p>

<p>Pleading — counterclaim must allege condition precedent.</p> <p>Sales — Personal Property Law, § 157, added in 1911 — effect of sections 130 and 150 on sales made before enactment of section 157 — place of trial — change for convenience of witnesses.</p> <p>A counterclaim is fatally defective where it fails to allege a condition precedent to the cause of action upon which it is based.</p> <p>As section 157 of the Personal Property Law declares that none of the provisions of the statute shall apply to any sale or to any contract to sell made prior to the taking effect of said statute, sections 130 and 150 of the Personal Property Law, which relate to notice of a breach of warranty and the measure of damages, do not control as to a counterclaim for a breach of warranty on a sale made before the law took effect.</p> <p>Where, on a motion for change of place of trial to a rural county on the ground of the convenience of witnesses, it appears that if one-half of the number suggested were needed a considerable preponderance of witnesses would be accommodated, the motion will be granted, the tendency of the courts being to permit cases to go to rural counties where the opportunities for speedy trials are considered as promoting the ends of justice.</p>

<p>Street railways — action to restrain state officer from making changes in bridge over creek which is part of canal system — Laws 1913,-chap. 624 — appropriation for repairs.</p> <p>Where the only purposes specified in a statute (Laws of 1913, chap. 624) which appropriates the sum of $80,000 are the improvement of Ellieott creek and to make all necessary repairs to the bridges crossing it which shall be required by the deepening of the channel to make said creek a part of the canal system, and the statute provides that no part of the appropriation shall be available for such work unless the amount be within the amount of the unexpended balance of the appropriation after deducting the expense of necessary advertising, plans and specifications, a street railway company cannot enjoin state officers from making repairs to a bridge used by it without first making provision for traffic during the time repairs are being made, as said creek being a highway is subject to governmental control over highways though the franchise to operate the bridge is property in the highest sense.</p>

<p>Certiorari proceedings.</p>

<p>Negligence—liability of railroad — exercise of ordinary care as to ditch and culvert along its right of way—when not liable for damages caused by fire — damages.</p> <p>The liability of a railroad company whose negligence was the natural, direct and proximate cause of a fire which started in one building and extended to another is not limited to the damages occasioned by the destruction of the first building, but the company is liable for all the resultant damages from the fire.</p> <p>A railroad company must exercise ordinary care to see that a ditch and a culvert constructed along its right of way to carry off surface water are in such condition that it will not be dammed up and set back on the lands of adjoining owners to their damage.</p> <p>Plaintiff maintained for business purposes certain buildings adjacent to the defendant railroad’s right of way and in one of them was stored lime delivered by defendant which constructed a ditch along its right of way and also a culvert sufficient to carry off all water collected in the ditch under ordinary conditions. During an unusual rainfall the water became dammed up and set back on plaintiff’s land, reached the lime, producing heat which set the building on fire and practically all of plaintiff’s buildings adjoining defendant’s property, together with their contents, were destroyed. No prior difficulty with the culvert had been brought to the knowledge of defendant or its employees. Held, that defendant was not chargeable with negligence in maintaining the ditch and culvert and was not liable for the damages occasioned by the fire.</p>

<p>Motion to strike case from calendar.</p>

<p>Injunctions—■ certificate from public service commission authorizing reconstruction of elevated structure — when motion to continue injunction pendente lite granted.</p> <p>While the courts will not interfere in the matter of public improvements upon any slight consideration, yet a corporation which seeks to act under certain power granted to it must comply with the authority thus given to it.</p> <p>Where a street railway company procured a certificate from the public service commission authorizing it to reconstruct and relocate an elevated structure, the fact that it was impossible to comply with the requirement of said certificate as to placing columns because the space between the street curb and the railway tracks would not leave the number of feet required by the certificate is no defense in an action to restrain defendant from relocating or reconstructing the columns supporting the elevated structure along the street on the sidewalks of the block on which plaintiff’s property fronts, as the public service commission would have power to modify their certificate in that regard.</p> <p>It being apparent that the act of defendant in reconstructing the columns on the sidewalk in front of plaintiff’s premises is in violation of the authority granted to defendant, a motion to continue an injunction pendente lite will be granted. •</p>

<p>Corporations — business — by-law providing that salary of officers may be fixed by board of directors — when action of board of directors ratified.</p> <p>A by-law of a business corporation providing that the salary or compensation of its officers may be fixed by the board of directors does not deprive the court of its equitable jurisdiction to inquire as to the reasonableness of the salaries voted, and a minority stockholder in a representative action is entitled to a decree requiring the directors to return to the treasury all sums received by them in excess of reasonable compensation ’ for services rendered.</p> <p>The action of the directors of a business corporation in voting to each other an unreasonable salary may be ratified by a majority of the stockholders, but if objected to must be corrected within the corporation.</p> <p>In the absence of statutory provision, by-law or charter the directors of a business corporation are not authorized to vote salaries to each other as mere incidents to their office, and a minority stockholder may maintain a representative action to recover such salaries.</p> <p>The plaintiff in such an action is not entitled to recover where it appears that the salaries of the president and the secretary fixed by resolution of the board of directors pursuant to a by-law were reasonable in view of the services performed.</p> <p>Where upon a; loan to the corporation by its president there was no express agreement to pay interest, which in fact was compounded, the excess above the legal rate ■ is recoverable in a representative action brought by a minority stockholder.</p> <p>Where a judgment against the corporation and its president was predicated on a contract which inured to the benefit of the corporation which satisfied the judgment, the president was not chargeable with the payment of any portion of said judgment in a minority stockholder’s action.</p> <p>No rule of law prevents an officer of a corporation lending it money at the legal rate of interest.</p>

<p>Wills — statutory right of charitable corporation to hold real property — statute against perpetuities — provisions of General Municipal Law permitting devise of real estate —grant of property by deed or will—partition—trusts.</p> <p>The statutory right of a charitable corporation to hold real property is in effect a repeal pro tanto of the statute against perpetuities.</p> <p>Article 7 of the General Municipal Law which permits a devise of real estate and its proceeds for the purpose of creating and maintaining public parks, public libraries and aiding and instructing children abrogates to that extent the rule against perpetuities.</p> <p>By article 7 of the General Municipal Law a grant of property by deed or will to trustees for certain specified public purposes has the effect of forming them into a corporation without the necessity of complying with further formalities, anfl there is no force in the contention that the statute is an unconstitutional delegation of power to form a corporation.</p> <p>By the express provisions of section 146 of the General Municipal Law said article 7 is not to be construed or held to authorize any devise or bequest whatever of more than one-half of the estate of a testator or testatrix over and above the payment of debts, liabilities and expenses in case he or she shall leave a husband, wife, child or parent him or her surviving.</p> <p>By the will of testator whose wife survived him all the remainder of his estate, subject to her life estate therein, was upon her decease devised and bequeathed to certain individuals as trustees to maintain a public library and public parks in a certain municipality with direction that they should take and hold the property under the provisions of article 7 of the General Municipal Law under the corporate name of “ The Crandall Trust.” The will then provided: “ Tenth. I intend to legally dispose of all my estate whatever by this instrument; and, to be more certain of doing so, I hereby provide and will that if any devise or bequest hereinbefore contained for any cause or reason is or shall be held to be unlawful, invalid or void, then in any and every such case or cases I hereby give, devise and bequeath any and all the property and estate whatever as to which the hereinbefore devise or bequest or any part of any such devise or bequest is or shall be held to be unlawful, invalid or void to said ■* * *, not as trustees nor as tenants in common, but to them as individuals and absolutely, and jointly and as joint tenants, and to be held by them in joint tenancy.” On the trial of an action brought by a surviving cousin pf testator for partition of his real estate, upon a claim that its attempted testamentary disposition was void, it was conceded that testator left at least $200,000 of real estate and $50,000 of personalty. Held, that plaintiff was not aided by a stipulation that more than one-half of the real estate was given in trust as the one-half of the estate permitted by the statute to be so given would pass for that purpose while the other one-half would pass to the trustees as individuals under the tenth clause of the will.</p> <p>There being living parties named in said tenth clause who unitedly have the entire right of ownership and can convey an absolute fee in possession, the statute (Real Property Law, § 42) against an unlawful suspension of the power of alienation does not apply.</p> <p>The proof considered and held to fall short of establishing a secret trust that the donees named in said tenth clause should turn over to the corporation formed under the trust clause of the will whatever interest in the property they might receive as individuals under it.</p>

<p>Mandamus — motion for writ of — by-law of board of examiners of board of education of city of New York — when motion for writ denied.</p> <p>Where a by-law o£ the board of examiners of the board of education of the city of New York provides that applicants for licenses as assistant teachers in high schools must have had five years’ satisfactory experience in teaching, the word “ satisfactory ” means satisfactory to the board of examiners and not to a court or jury, and a motion for a writ of mandamus directed to said board to place relator’s name on the eligible list as an assistant teacher of mathematics for high schools must be denied as the court will not substitute its judgment in place of that of the board' of examiners.</p>

<p>Application to relieve purchaser from bid.</p>

<p>Inns and innkeepers — negligence of defendant and servants — action to recover value of goods lost or stolen.</p> <p>While defendant, a hotel keeper, was moving the goods of plaintiff from one suite of rooms in a hotel to another suite, which defendant for its own purposes and accommodation requested plaintiff to accept instead of the rooms theretofore occupied by her; a jewel ease and its contents were either lost or stolen through the alleged negligence of defendant and its servants. In an action to recover the value of the jewels, held, that a defense that defendant provided a safe for keeping money, jewels and ornaments belonging to its guests and posted notices to that effect in the hotel and that plaintiff neglected to deliver the jewels in question to defendant for deposit in such safe was demurrable.</p> <p>If the cause of action were based upon the common law liability of an innkeeper as an insurer of the property ol guests, irrespective of any question of negligence, the protection afforded by section 200 of the General Business Law would apply and the defense be good, but as the action was not based entirely on defendant’s liability as innkeeper but upon the alleged negligence or dishonest acts of defendant or its employees, the statute had no application.</p>

<p>WiUs—■ direction as to disposal of residue of personal estate — testator’s children empowered to dispose of his or her share among issue.</p> <p>Testator directed the residue of his personal estate to be held in trust for his seven children and the net income used for their benefit and upon the death of any of them the principal of the share set apart of the one so dying was directed to be paid to such of his or her issue as should survive such deceased child. The will empowered each of testator’s children to dispose of, by will, his or her share of the principal among his or her issue or among the other children of testator and the issue of any of them in such manner and proportion as he or she might deem best. Held, that a daughter of testator was authorized to make appointment by will to and among her own issue or among her own brothers or sisters or among the issue of any one or more of her brothers and sisters in her discretion.</p>

<p>Negligence — action to recover for mental suffering — failure to provide necessary guard for foody after foutial in cemetery — pleading — doctrine of immunity extended to charitable corporations.</p> <p>In an action to recover for mental suffering claimed to have been caused to plaintiff through the negligence of defendant, a domestic religious corporation, in failing to provide the necessary care to guard the body of plaintiff’s brother which, after burial in the cemetery of defendant pursuant to an agreement between plaintiff and defendant in consideration of a money payment by plaintiff, was stolen from the grave, a motion by defendant for judgment on the pleadings must be denied.</p> <p>As plaintiff was not the recipient of gratuitous service on the part of defendant but paid therefor, the doctrine of immunity extended to charitable corporations in certain cases has no application.</p> <p>While a general allegation of negligence is good against demurrer it is not good as against a motion to have the charge made more specific so as to give information of the particular act or acts relied on, and, though plaintiff might be required to allege some affirmative or some specific act of negligence, a motion for judgment on the pleadings was not proper.</p> <p>The objection that plaintiff did not show that he was the one entitled to bring the action as heir at law was untenable as the injury to plaintiff is distinct from the injury to any other relative of deceased.</p>

<p>Gifts — inter vivos — when title to securities vests in assignee — evidence of ownership of certain corporate stock — executors and administrators — assignment of certificate of corporate stock — Code Civ. Pro., § 829.</p> <p>An assignment of certificates of corporate stock to which no transfer tax stamps were ever affixed as required by section 278 of the Tax Law is insufficient to vest title to the securities in the assignee.</p> <p>The evidence in an action to determine the ownership of certain corporate stock found in the safe deposit box of decedent which his widow claimed as part of his estate but of which a surviving sister of decedent claimed to be the owner by virtue of an alleged gift inter vivos, considered, and held to conclusively establish that decedent intended to make a gift of the securities to said sister.</p> <p>An adopted sister of decedent who had always lived with said surviving sister was competent as a witness under section 829 of the Code of Civil Procedure as to decedent’s delivery of the certificate of stock to said surviving sister accompanied by appropriate words of gift and her return of it to him for safe keeping after she had indorsed it over to herself at his suggestion.</p> <p>The testimony of the administrator with the will annexed who was also one of decedent’s residuary legatees in support of the contention of said gift of the stock, in the absence of fraud or collusion, was clearly admissible as being in derogation of interest.</p> <p>The indorsement of the original certificate by the surviving sister of decedent was a sufficient act of dominion and ownership to complete the gift of the stock, nor did decedent intend thereby, nor by the later assignments, to divest the surviving sister of title to the stock standing in her name on the books of the corporation.</p>

<p>Constitutional law — insurance — section gi of Insurance Law violates both State and Federal Constitutions — right of citizen to engage in lawful business.</p> <p>The insurance business is a lawful and legitimate occupation which any citizen of good character has a constitutional right to engage in, and any arbitrary restriction upon its pursuit is an invasion of such right.</p> <p>While the legislature in the exercise of police power' may regulate the abuses of the insurance business it may not create a monopoly of a legitimate line of business nor authorize a public official to arbitrarily and capriciously give or withhold permission to pursue such lawful occupation.</p> <p>Section 91 of the Insurance Law (Laws of 1909, chap. 33), giving the superintendent of insurance absolute discretion or arbitrary power to exclude at his will and pleasure fit and qualified persons approved by their principal from acting as life insurance brokers or solicitors, is an unconstitutional interference with the liberty of the citizen without due process of law and in contravention of both the Federal and the State Constitutions.</p> <p>In an action by an insurance solicitor to recover commissions for services rendered in inducing the members of a fraternal benefit order to insure their lives with defendant, a domestic life insurance • company, under a written contract of employment, an answer pleading as a defense that any services alleged to have been rendered by plaintiff to defendant were rendered in this state and that plaintiff had not prior to the rendition of such services procured from the superintendent of insurance a certificate authorizing him to act as a life insurance agent as required by section 91 of the Insurance Law, as a condition precedent to his earning any compensation as insurance agent, sub-agent or broker, is demurrable for insufficiency in law.</p>

<p>Cross motions for final judgment.</p>

<p>Action to foreclose a mechanic’s lien.</p>

<p>Motion for judgment on the pleadings.</p>

<p>Action upon a contract.</p>

<p>Injunctions — action — acquisition of title — constructive notice of covenant in deed — violation thereof.</p> <p>Where the owner of a tract of land divided it into lots and in each deed of conveyance the grantee for himself, his heirs and assigns covenanted that there should not be established or carried on"“ any kind of manufactory, trade or business whatsoever * * * and that the building and buildings erected on said lots shall be restricted to private dwellings, without a store or stores underneath,” the occupancy of a portion of the premises by a dressmaking establishment is a violation of the covenant against the use of the premises for business and may be enjoined at the suit of any lot owner.</p> <p>In an action for an injunction to restrain the violation of such covenant defendant’s contention that the character of the neighborhood had changed from a residential to a business occupation, and, therefore, the purpose of the covenant was defeated, considered, and held not tenable.</p> <p>Where it appeared that at the time plaintiff acquired his title to one of the lots and built his home thereon he was justified in placing reliance upon the protective force of the restrictive covenant, he acquired a right to the specific performance thereof by every bounden grantee and whether such right be of intrinsic or sentimental value is immaterial, and whether he has been or may be damaged by its violation is of no consequence.</p> <p>Defendant not only having had constructive notice of said covenant in her deed and also in the record of title and personal notice of the restriction in the covenant, her violation thereof was wilful and deliberate and justice requires that she be enjoined from conducting her dressmaking establishment though injury may inure to her 'thereby.</p>

Application by defendant for an order directing the district attorney of the county of New York to return all books, papers, etc., obtained by him from the superintendent of banks.

<p>Bonds — action upon — license to do business as commission merchant — Agricultural Law, § 284 — waiver of right to question constitutionality of statute — surety.</p> <p>An action upon a bond given pursuant to section 284 of the Agricultural Law by an applicant for a license to do business as a commission merchant in farm produce may he brought by the commissioner of agriculture and the surety will be deemed to have assented thereto.</p> <p>The purpose of section 282 of the Agricultural Law was to relieve merchants and others engaged in selling produce for consumption from the necessity of obtaining a license and complying with the other requirements of the statute, and it must be assumed that the applicant for the license indicated its intention to conduct the business of receiving and selling farm produce for resale, and the burden of proving that the particular consignments in question were sold by it for consumption is upon defendant principal on the bond.</p> <p>The principal by giving the bond and receiving produce as a licensed commission merchant waived its right to question the constitutionality of the statute pursuant to which the bond was given, and the surety stands in no better position.</p>

<p>Action for an injunction</p>

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

<p>Actions — to set aside separation agreement — insufficiency of evidence to sustain finding of fraud —■ when wife has right to obtain amount sufficient to maintain reasonable standard of living — discontinuance of action previously brought — when wife not chargeable with laches.</p> <p>Where in an action brought by a wife to set aside a separation agreement the evidence is insufficient to sustain a finding of actual fraud or duress by any of the parties, but it is clear that the terms of the contract were never satisfactory to plaintiff and that she agreed to them under protest and her assent thereto was predicated upon a misapprehension of her husband’s income and circumstances, and it is conceded that she was never satisfied with the amount allowed and asserted that it was insufficient for her support and that of her child, based upon the standard of living theretofore maintained by defendant and the station in life which was the reasonable right of plaintiff and her child, and the evidence shows that she will be unable to live as well under the contract as she did before it was made, and the amount allowed thereby was only about one-fourth of defendant’s income, plaintiff will be awarded judgment setting aside the separation agreement.</p> <p>A reasonable standard of living having been adopted, a wife has the right to obtain, when living apart from her husband under a separation agreement, if his income warrants it, an amount which will permit her to live according to that standard.</p> <p>The money which plaintiff received under said agreement and which it is contended should be returned as a condition precedent was undoubtedly all necessarily spent for the support of herself and child, hence she is not required to return any portion of it.</p> <p>Where plaintiff’s discontinuance of an action previously brought to ' set aside the separation agreement was followed shortly by the commencement of the present action, she is not chargeable with laches she not being aware of the essential facts which are the basis of her prayer for relief in the present action.</p>

Action on the commercial calendar of the City Court upon a purported certificate of indebtedness for $1,483.28 issued by the defendant Ferncliff Cemetery Association to the defendant John C. Witte and by him transferred, to the extent of $1,400, with interest thereon, to the plaintiff, Anna Bade.

Appeal by the defendant from an order made by , the City Court of the city of New York denying defendant’s motion to set aside an order for the examination of defendant before trial and appointing a referee to take defendant’s deposition.

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

Appeal by the defendants from a judgment of the City Court .of the city of New York, entered in favor of the plaintiffs upon a verdict directed by the court and from an order denying a motion for a new trial.

Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, sixth district, rendered in favor of the plaintiff for the sum of eighty-seven dollars.

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

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

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

<p>Negligence — meaning of word “way” in Labor Law — contracts — evidence.</p> <p>Where plaintiff, a laborer, was injured by falling through the first floor into the basement of a building then in course of construction, and it appears that when plaintiff fell defendant, his employer, was not conducting any business on said floor and that he was under no obligation to maintain any “ way ” within the meaning of section 200 of the Labor Law in connection with any business at the place, defendant was not liable for failure to maintain a flooring over the basement, plaintiff under the orders given him by his foreman being under no obligation to enter a room which had no floor.</p> <p>Whether plaintiff was injured by defendant’s negligent omission of a duty which he owed to plaintiff either under the common law or under the Labor Law, such omission could not be imputed from any violation of duty which defendant owed-to the owner of the building, and the introduction of part of the contract between defendant and the owner of the building was prejudicial error, the same not being admissible for any purpose.</p>

Appeal by plaintiff from a judgment of the City Court of the city of New York, entered after a dismissal of the complaint on motion at the trial, on the ground that it did not state facts sufficient to constitute a cause of action.

<p>Appeal by an interpleaded defendant from a judgment of the City Court of the city of New York, entered after a trial by the court without a jury.</p>

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

<p>Mandamus—‘ action by employee to recover salary — remedy of employee.</p> <p>In an action by an employee of the city of New York to recover salary, it is a good defense that plaintiff’s name does not appear on the pay-roll certified by the municipal civil service commission; the only remedy of the employee is by mandamus to compel the commissioners to put the employee’s name on the pay-roll, as until they have acted the city cannot pay.</p>

Appeals from judgments of the Municipal Court of the city of New York, borough of The Bronx, first district, in favor of plaintiff, by defendants in two actions brought respectively against a foreign corporation and its treasurer.

<p>Carriers — of passengers — when passenger entitled to use force to resist ejectment — action for breach of contract to carry — assault of passenger by conductor — street railways.</p> <p>If a railway passenger has paid his fare the conductor has no right to eject him, and if he attempts so to do the passenger is entitled to use such force as is necessary to resist his ejection.</p> <p>Plaintiff insisted that he had paid his fare and defendant’s conductor that he had not. In the conductor’s attempt to eject plaintiff by force from the ear plaintiff claimed that he was assaulted. In an action for breach of the contract to carry, a charge to the jury that in case of dispute if the conductor insists upon the payment of fare it is the duty of the passenger" to pay his fare even though he had paid it before is erroneous and the error is not cured by the further instruction that plaintiff was entitled, if he was a passenger and paid his fare, to a reasonably safe and comfortable ride which if he did not get and was assaulted there was a breach of the contract to carry.</p>

Appeal by plaintiff from a judgment dismissing the complaint at the opening of the trial in the Municipal Court of the city of New York, borough of Manhattan, first district, on the ground that the. complaint failed to set forth facts sufficient to constitute a cause of action.

Appeal by defendants from a judgment of the Municipal Court of the city of New York, borough of Manhattan, third district, entered after a default on an inquest. Defendants gave notice of an intention to review an order overruling a traverse of the return and denying the motion to vacate the attachment, the levies under it, and the alleged service of the summons and complaint.

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

<p>Appeal—question not raised in court below—pleading — when amendment to answer should not be allowed.</p> <p>Where evidence is received without objection or exception, the question that it was inadmissible under the pleadings cannot be raised on appeal.</p> <p>Where the real issue, in an action brought by a corporation to recover from an agent funds alleged to be in his hands unaccounted for, is the amount of defendant’s indebtedness to plaintiff, it is error to allow, over plaintiff's objection and exception, the answer to be amended so as to allege that the action was brought by plaintiff’s treasurer without authority from the board of directors, as the authority of plaintiff’s attorney was presumed, but, if questioned, it must be by motion and not by answer.</p>

Appeal by the plaintiff from a judgment of the City Court of the city of New York, in favor of defendants, dismissing plaintiff’s complaint.

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

<p>Appeal from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, dismissing plaintiff’s complaint after a trial by the court and-a jury.</p>

<p>Principal and agent — liability of agent—when principal cannot be compelled to pay import duties.</p> <p>Bankruptcy — rights of trustee in — claim of general government against agent for import duties — filing of claim with trustee.</p> <p>While a principal is liable to an agent for-any loss which he incurs through acts directed by the principal to be performed in Ms behalf, the agent cannot recover from his principal the amount of a liability which has been reduced to judgment until the agent has paid or satisfied it and the liability has been changed to an actual loss.</p> <p>The principal of an agent who imported goods into the United States cannot be compelled to pay the import duties, and until the agent has paid them his principal is under no obligation to reimburse him.</p> <p>A trustee in bankruptcy suing to enforce an implied contract of Ms bankrupt has no greater rights than the bankrupt would have if he were the nominal plaintiff.</p> <p>A claim of the general government against an agent importing goods for import duties has priority over Ms other creditors in bankruptcy; such a claim need not be filed and if the trustee fails to pay it after notice he is personally liable.</p> <p>Upon filing such a claim with the trustee in bankruptcy the bankrupt’s estate suffered an actual loss provided any property came into the trustee’s hands and he is entitled to recover such loss from the principal of the agent though the import duties had not been paid.</p> <p>Under the bankruptcy act and rules the fact that property came into the trustee’s hands cannot be inferred from Ms appointment as trustee.</p>

Appeal by defendant from a judgment of the City Court of the city of New York, rendered in favor of plaintiff, after a trial before the court and a jury, and from an order denying defendant’s motion to set aside the verdict and for a new trial.

Appeal by the judgment debtor from an order of the City Court of the city of New York, adjudging him guilty of contempt and also from an order denying a motion for an order allowing the examination in supplementary proceedings of such debtor to be opened for the purpose of submitting other and further tes-' timony in opposition to the motion made to punish.him for contempt.

Appeal by defendant from a judgment of the City ■ Court of the city of New York in favor of plaintiff, entered upon the verdict of a jury.

Appeal by plaintiff from a judgment of the City Court of the city of New York, setting aside the verdict of a jury, in favor of plaintiff for $720, and dismissing the complaint.

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

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

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

Appeal by plaintiff from a judgment of the Municipal Oourt of the city of New York, borough of Manhattan, fourth district, “ dismissing the action on the merits ” at the close of plaintiff’ case.

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

<p>Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of The Bronx, second district, in favor of plaintiffs, after a trial by a judge without a jury.</p>

<p>' Appeal by plaintiff from judgment of the City Court of the city of New York dismissing complaint.</p>

Appeal by defendants from a judgment of the City Court of the city of New York, in favor of plaintiffs entered on a verdict directed by the court.

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

<p>Contracts — with disclosed principal —- principal and agent — when agent not liable.</p> <p>Where plaintiff having agreed with defendant to write a moving picture play signed a paper which read as follows: " Received on account from Niagara Feature Film Company Fifty Dollars to be applied to our mutual agreement that I am to receive two hundred dollars for which I am to write for them exclusively two scenarios consisting of two reels each,” the paper shows the contract was with a disclosed principal, the corporation, and that defendant, its agent, was not liable thereon.</p>

Appeal by the defendant from a judgment of the City Court of the city of New York in favor of the plaintiff entered upon the direction of a verdict.

Appeal by defendant from a judgment of the City Court of the city of New York, rendered in favor of the plaintiff for $933.25 entered upon a verdict of a jury, and also from an order, denying defendant’s motion for a new trial.

Appeal by the defendants from a judgment entered in the City Court of the city of New York, upon a verdict in favor of the plaintiff for the sum of $1,414.76, and from an order denying the defendants’ motion to set aside the verdict and for a new trial.

Appeal by the defendant from an order retaxing costs in two judgments in the Municipal Court of the city of New York, borough of Manhattan, first district.

<p>Appeal from judgments of the Municipal Court, borough of Brooklyn, rendered in favor of plaintiff.</p>

<p>Appeal from a judgment of the Municipal Court, borough of Brooklyn, rendered in favor of defendant.</p>

<p>Action to compel defendants to remove an unlawful structure.</p>

<p>Contracts — making of, in writing — granting exclusive right to manufacture and sell — when not enforcible in action to recover royalties— patents — validity of — liability for royalties — priority of invention.</p> <p>Where at the time of making a contract in writing, by which plaintiff granted to defendant the exclusive right to manu- ■ facture and sell for five years a certain non-skid tread for vehicle tires known as the “Security Tread” upon which plaintiff “has made application for a patent now pending,” plaintiff knew that the application had been rejected and declared abandoned for about .a year prior to the making of the ■ contract, the contract was not enforcible against defendant, in an action to recover royalties, for want of consideration.</p> <p>Where a patent is valid and in force the party using and receiving the benefit thereof is liable for royalties agreed to be paid and cannot urge as a defense that the patent is in fact invalid; but if the patent is annulled or destroyed by due and effective legal proceedings for priority of invention no further royalties need be paid under such a contract.</p> <p>Where the facts show that the wbrd “ Security ” was used '• by both parties to the contract simply as a name for the particular design of tire invented by a British subject and not to indicate .the maker or seller, plaintiff has no exclusive right to such word as a trade-márk nor has defendant any such right though it secured the registration of said word by the United States patent office as a trade-mark, such registration not being conclusive upon the' courts as to its validity or defendant’s right to such registry.</p>

Action to compel the determination of the question as to whether certain unpaid taxes are liens on the property assessed, and whether the common council should cancel and discharge the same.

<p>Action to cancel a tax deed given by the comptroller of .the state of New York.</p>

The relator is the owner of a house and lot fronting on a street surrounding Steuben park, on the northerly side, in the city of Utica, within a residence district, attempted to be set apart by an ordinance passed by the common council of the city in March, 1914, pursuant to section 9 of chapter 774 of the Laws of 1913, as amended by chapter 798 of the same year, known as the Housing Act. The respondent is the superintendent of buildings of the city of Utica.

<p>Application to review proceedings of an alleged meeting of the Democratic county committee of Washington county.</p>

<p>Action to restrain a nuisance and for damages.</p>

<p>Labor Law—Workmen’s Compensation Act — Laws of 1914, chap. 41 —■ action by infant employee to recover damages for personal injuries — pleading.</p> <p>The legislature may remove the disability of infancy so as to permit a minor, old enough under the Labor Law to go to work, to make an election as to whether he will work under the “Workmen’s Compensation Act” (Laws of 1914, chap. 41) or the common law.</p> <p>Where in a common law action brought in behalf of an infant employee to recover damages for personal injuries received while working for defendant in his factory the answer pleads as a separate and complete defense that defendant has complied with the provisions of the Workmen’s Compensation Act and is relieved from all liability to plaintiff, except as provided in said statute, a demurrer to such defense that said statute cannot deprive plaintiff of her right to resort to the court for damages if she so desire must be overruled, as under said statute the employee is given no choice or election, and if the employer chooses to come thereunder the employee is bound to and is barred from all other remedy.</p>

<p>Lands under water — acquisition of, when not subject to mortgage.</p> <p>Land under water acquired from the state by a mortgagor owner of adjacent uplands is not subject to the lien of a mortgage thereon.</p>

<p>Action to restrain defendants from revoking theatre license.</p>

<p>Actions — who may bring — determination of — transfer of legal controversies from court of law to one of equitable jurisdiction — Civil Eights Law, § 40, as amended in 1913.</p> <p>That a plaintiff may be obliged to bring several actions is not sufficient to transfer his legal controversies from a court of law to one of equitable jurisdiction, especially where the cause of action is quasi criminal in its nature and is founded in part on the exercise of the police power; but where several defendants are all united in interest to deny to plaintiff some of his civil rights one action at law will determine nothing and legal relief would be inadequate.</p> <p>Where defendants, managers of certain theatres, upon a claim that the attendance of plaintiff, a dramatic critic, at their theatres is for the purpose of writing adverse criticisms and thus to cause defendants pecuniary loss, have forbidden him the privilege of entrance, refused to honor his tickets of admission and threaten to eject him by force if he should enter, an action to recover for a violation of section 40 of the Civil Rights Law, as amended in 1913, falls within the equitable jurisdiction of the court and pending the determination of said action or further order of the court plaintiff will be granted an injunction restraining the threatened action of defendants as unless equity interferes plaintiff is without remedy.</p>

<p>Motion by plaintiff for a judgment upon the complaint and the demurrer thereto.</p>

<p>Equity — principle that equality is equity — preferences in cases of insolvent institutions — what entitles claimant to preferential payment.</p> <p>Trusts—■ action seeking to have it adjudged that trust exists with respect to moneys of plaintiff — accounting — trust fund must he ascertained, traced and identified.</p> <p>All preferences in eases of insolvent banking institutions should be resisted by the public authorities and except where they are statutory such preferences should be disposed of by the court upon the principle that equality is equity.</p> <p>The doctrine that as between creditors equality is equity admits of no exception founded on the greater supposed sacredness of one debt, or that it arose out of. a violation of duty, or that its loss involves greater apparent hardship in one ease than another unless it further appears that there is some specific recognized equity founded on some agreement or the relation of some debt to assigned property which entitles the claimant to preferential payment according to equitable principles.</p> <p>Plaintiff upon depositing in the defendant bank or trust company funds collected by his agent in France drew upon said account and was credited with an agreed rate of interest on his balances. Instead of a bank-book plaintiff received statements of “ account current ” and he drew on the account by written instruments which were virtually cheeks. ■ The only difference between plaintiff’s account and that of the other depositors was that his was entered in the trust ledger and was repeatedly referred to by defendant’s officers. In an action seeking to have it adjudged that a trust exists with respect to certain moneys of plaintiff and for an accounting and a decree that all moneys found due plaintiff should be paid in preference to the general creditors of the insolvent trust company in liquidation, held, that the trust company not acting as trustee by virtue of judicial appointment plaintiff was not entitled to any preference by statute. Madison Trust Co. v. Carnegie Trust Co., 167 App. Div. 4, followed.</p> <p>That while in an action between plaintiff and the trust company where the character of plaintiff’s account was in issue the trust company might be estopped from denying that the account was a trust one yet in the present action in which plaintiff was seeking to be paid in full and to be preferred over all the other depositors of the trust company such other depositors were not estopped by the trust company’s characterization of plaintiff’s account.</p> <p>That the other creditors of the trust company were entitled to have the true relationship concerning plaintiff’s account established by the proved course of dealing between the parties and according to settled legal principles interpreting and giving effect to such course of dealing, the inquiry to proceed from the starting point that equality is equity.</p> <p>That even if it were held that the original quasi trust relation to the funds collected in France under a power of attorney delivered by plaintiff to the trust company empowering it to receive, take possession of, manage and dispose of all of his property in France persisted down to the closing of the trust company, plaintiff would not be entitled to a preference as it appeared by the uncontradicted evidence that plaintiff’s funds were commingled with the general funds of the trust company and their identity was wholly lost in its active bank account, and that the trust company had sustained the burden of showing that said account had been entirely dissipated.</p> <p>It is not sufficient merely to trace trust funds into the general and commingled funds of a trust company in order to obtain a lien upon all of its assets and a preference over all other creditors, but the trust fund must be ascertained, traced and identified.</p>

<p>Motion for a new trial.</p>

Action on the commercial calendar of the City Court for damages for refusal to accept delivery of certain goods manufactured to defendant’s order. Motion by defendant to set aside a verdict for the plaintiff.

<p>Appeal from a judgment rendered by a Justice’s Court.</p>

<p>Costs — who entitled to tax costs of appeal — Code Civ. Pro., § 3237.</p> <p>Where a judgment of the City Court of the city of New York in favor of defendant is reversed on appeal, with costs to the appellant to abide the event, and on the new trial plaintiff recovers judgment for less than $250, he is, nevertheless, entitled to tax the costs of the appeal.</p> <p>By the provisions of section 3237 of the Code of Civil Procedure, section 3228(5) thereof, under which plaintiff was not entitled to costs of the action, has no application to costs on appeal. ,</p>

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

<p>Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fifth district, rendered in plaintiff’s favor for $350 and dismissing counterclaim upon the merits.</p>

Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, entered on the 19th day of February, 1915, for the sum of $137.75 on a verified complaint and from an order denying a motion to vacate an attachment against the property of the defendant.

<p>Game — transportation — Conservatipn Law, § 176, only applies to birds, animals and transportation within state of New York — when importer not subject to penalty.</p> <p>Statutes should be construed so as to render them practicable, just and reasonable, and when penal in their nature should not be extended to eases not clearly within their provisions.</p> <p>Section 176 of the Conservation Law (Consolidated Laws, chap. 65, as amended by chap. 508 of the Laws of 1913) only applies to birds, animals and transportation within the state of New York; section 178(4) of said law permits birds to be imported and brought into the state under certain conditions, but contains no prohibition and prescribes no penalty for importing or bringing them in otherwise than in the manner prescribed by that section. Held, that said statute is penal and where partridges imported into this state without a shipping permit or importation clause issued by the New York state conservation commission arrived in this state during the season when it was lawful for partridges to be taken in this state and there used by persons lawfully taking the same, the importer is not subject to a penalty under section 182 of the statute for a violation of section 178(4) thereof.</p>

Appeal by Louis C. Schliep from a judgment of the Municipal Court of the city of New York, borough of Manhattan, third district, bringing up for review an order of interpleader.

Appeal by the plaintiff from a judgment in favor of the defendant rendered in the Municipal Court of the city of New York, borough of Manhattan, first district, bringing up for review the order sustaining defendant’s demurrer to the complaint.

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

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

<p>Appeal by the defendant from a judgment of the City Court of the city of New York entered in favor of the plaintiff.</p>

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

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

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

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

Appeal by defendant Lambros fr.om an order of the Municipal Court of the city of New York, borough of Manhattan, first district, denying motion to vacate attachment.

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

Appeal by plaintiff from an order of the City Court of the city of New York, granting defendant’s motion to compel the plaintiff to accept the notice of appeal and undertaking on appeal from a judgment of said court.

Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fourth district, rendered in favor of plaintiff, after a trial before the court and a jury.

Appeal by defendant from an order of the City Court of the city of New York setting aside a verdict on the ground that it is impossible to determine what the jury's finding is.

Appeal by plaintiff from a judgment of the City Court of the city of New York, dismissing the complaint at the close of plaintiff’s case.

Appeal by defendant from a judgment of the City Court of the city of New York, in favor of plaintiff, entered upon the verdict of a jury.

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

Appeal by defendant from a judgment of the City Court of the city of New York, in favor of plaintiff, entered upon the verdict of a jury.

Appeal by defendant from a judgment of the City Court of the city of New York, in favor of plaintiff, entered upon the verdict of a jury.

Appeal by plaintiff from a judgment of the City Court of the city of New York, dismissing the complaint at the close of plaintiff’s case.

Appeal by plaintiff from a judgment of the City Court of the city of New York, dismissing the complaint at the close of plaintiff’s case.

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

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

Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, ninth district, dismissing the complaint in an action for conversion.

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