Volume 91 — New York Miscellaneous Reports

<p>Evidence — in action to recover for personal injuries — when incompetent — appeal.</p> <p>Where in an action to recover for personal injuries the testimony as to how they were caused is conflicting, the case should be sent to the jury.</p> <p>Where a physician as a witness for plaintiff, in answer to a question as to whether an X-ray blue print which he brought from the hospital to which plaintiff had been taken correctly showed the position at the time of the trial of the palm of plaintiff’s injured hand, replied that it explained the reason of the deformities he found, said blue print, in' the absence of testimony either that an X-ray picture was taken of plaintiff’s hand or that the blue print produced was a picture thereof, was incompetent and its reception in evidence calls for the reversal of a judgment in favor of plaintiff entered on a verdict for $1,500.</p>

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

Appeal by defendant from a judgment of the City Court of the city of New York, entered on verdict directed in favor of. plaintiffs and dismissing defendant’s counterclaim; also from two orders, one denying defendant’s motion for a new trial, the other denying motion to amend judgment by striking out the words “ on the merits ” after the provision for the dismissal of the counterclaim.

<p>Bills of lading — provisions of — when notice of claim must he given — contracts.</p> <p>Where a bill of lading provided that a shipment might be carried by a certain vessel or in a steamship following, and also provided that notice of any claim arising under it must be given by the consignee to the steamer’s agent at the port of destination within forty-eight hours after, the landing of or failure to deliver the goods, the claim to be preferred within ninety days from the date at the offices of the owner of the steamer, a claim made by the consignee before the termination of the ninety days for failure to deliver not only met the requirements of the contract as a claim preferred but it was also sufficient notice of the loss of the property provided for by the forty-eight-hour notice which the consignee had failed to give.</p>

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

Appeal by defendant from an order of the Municipal Court of the city of New York, borough of Manhattan, seventh district, denying a motion to dismiss the complaint.

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

Appeal, by the landlord from a final order made in summary proceedings in favor of the tenant in the Municipal Court of the city of New York, borough of Manhattan, seventh district.

Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, third district, rendered in favor of defendant dismissing the complaint at the close of plaintiff’s case.

<p>Cemetery associations — issue of certificate of indebtedness by — services rendered — Membership Corporations Law, § 50.</p> <p>The issuance of a certificate of indebtedness by a cemetery association to the promoter of its grantor for services rendered by him in his own behalf in looking up and acquiring land, for which he was apparently compensated by the receipt of stock in the grantor of the cemetery association, is ultra vires, for even if some part of the expenses might have been “ incidental expenses and liabilities ” of the association the one who rendered the services might have been paid out of the proceeds of the sale of the use of lots as provided by section 50 of the Membership Corporations Law.</p>

<p>Appeal from a judgment of the City Court of the city of New York, entered in favor of the plaintiff for $627.62, upon a verdict of a jury and from an order denying the defendant’s motion for a new trial.</p>

<p>Conversion — what makes out a prima facie case of — sale of property before demand for its return matter of defense — evidence.</p> <p>Where ■ a diamond lavalier was delivered by plaintiff to defendant on consignment for sale, title to remain in plaintiff until sold, and was to be returned to plaintiff on demand, plaintiff oh proof of demand for a return of the property and defendant’s refusal to give it up makes out a prima facie case of conversion.</p> <p>A sale of the property before demand for its return was matter of defense which it was unnecessary for plaintiff to negative by proof to the contrary.</p>

<p>Carriers — bill of lading — absence of evidence tending to show arrangement between steamship company and railroad company.</p> <p>Where a steamship company by its bill of lading agreed to deliver goods to the place of destination if on its line “ otherwise to deliver to another carrier on the route to said destination,” and there is a total absence of evidence tending to show an arrangement of any kind between the steamship company and a railroad company to which the goods were to be delivered, or any evidence as to the making of a joint rate, the case is not brought within the terms of the Interstate Commerce Act which only applies to transportation by water under a common “control, management or arrangement for a continuous carriage or shipment ” with a railroad company.</p> <p>Guy, J., dissents.</p>

<p>Landlord and tenant — action for rent against under-tenant — contention as to right of possession — when court would not have jurisdiction.</p> <p>Where in an action for rent against an under-tenant it appears that the original tenant sub-leased one-half the premises and that his interest as lessor was assigned to plaintiff on January 22, 1915, the under-tenant was entitled to counterclaim for so much of the January rent, which was payable in advance, as was necessary to satisfy his claim against the tenant under an agreement that he should reimburse himself out of the rentals for goods sold to the tenant.</p> <p>A contention that as defendant’s right of possession depended upon Ms payment of rent the plaintiff as dominant landlord, his immediate tenant being insolvent, was entitled in equity to proceed against the under-tenant for rent, held untenable, as no facts were alleged in the pleadings that would warrant such relief, the necessary parties not being before the court, and the court below would not have jurisdiction of such action.</p>

<p>Appeal by plaintiff from a judgment of the Municipal Court of the city of Hew York, borough of The Bronx, second district, rendered in his favor and against the defendant for $138.07.</p>

Appeal by the defendants from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, in favor of the plaintiff for $257.53 damages and costs, after a trial without a jury.

<p>Appeal from a judgment of the Municipal Court of the city of New York, borough of Manhattan, second district, entered against the defendant and from an order denying a motion for a new trial.</p>

Appeal by defendant from a judgment of the City Court of the city of New York, in favor of plaintiff for $1,223.69 entered pursuant to a direction of the court after a trial by a jury.

<p>Actions — in Municipal Court — preservation of right to object to jurisdiction— when court may open default — prayer for relief.</p> <p>Where a defendant in a Municipal Court action appearing specially in order to preserve his right to object to the jurisdiction of the court seeks a trial at which his objection may be properly raised, the court may properly open his so-called default and set the ease for traverse to the jurisdiction and then try the issues raised by the traverse under defendant’s prayer for such other and further relief as the court has power to grant.</p>

Appeal by plaintiff from a judgment of the City Court of the city of Hew York dismissing the complaint, and from an order denying motion for a new trial.

<p>Sales — when title did not pass to buyer — seller in case of non-delivery must look to carrier for value of goods.</p> <p>Where the buyer o£ goods objected to a part, asked for instructions and was permitted to return them, the title thereto never passed to the buyer.</p> <p>A delivery of the goods to a common carrier was a delivery to the seller and in ease of non-delivery such seller must look to the carrier' for the value of the goods.</p>

<p>Appeal from a judgment of the City Court of Buffalo in favor of the plaintiff and against the defendant.</p>

Motion to continue temporary injunction restraining defendant from arresting relator for opening his moving picture show on Sunday, contrary to the conditions of the mayor’s license.

<p>Navigable waters — riparian owners — when equity will afford injunctive relief—■ franchise to supply inhabitants of city of Niagara Falls with pure water — when discharge from municipal filtration plant unlawful — Public Health Law, § 76.</p> <p>While riparian owners do not own the water of natural fresh water lakes and streams each is entitled to a reasonable use of the water, but must neither lessen the quantity nor alter the quality of the water flowing by their premises; these are constitutional property rights of which the owners may not be deprived without'just compensation, but if there be no adequate remedy at law without a multiplicity of suits, or there is danger that an unreasonable use of the water will ripen into a prescriptive right, equity will afford injunctive relief.</p> <p>Plaintiff has a franchise from the state and from the former village (now city) of Niagara Falls to supply its inhabitants with pure and wholesome water, the source of supply being designated in the village franchise as the Niagara river, a navigable stream, and the plaintiff is also lessee and in possession of lands on the bank of said river, under riparian owners. The defendant city of Niagara Falls maintains a water plant for supplying others of the inhabitants of said city with water which it takes from a point about 2,000 feet out in the river, about two miles above plaintiff’s intake, to a filtration plant on the banks whence after being filtered the pure water passes into the service mains and pipes of the city’s plant and a large quantity of the filtered water is used daily to wash the filter beds, and all the bacteria and other impurities which have been taken from the raw water in the process of filtration are discharged into the river near the bank. The average amount of suspended matter in the water at plaintiff’s intake is from two-fifths to one-half a ton per 1,000,000 gallons and plaintiff is obliged to maintain a filtration plant to separate such suspended matter from the water before delivering the water to its customers, and the greater the amount of suspended matter, and particularly the greater percentage of bacteria, the greater the expense, care and effort required in insuring the wholesomeness of the water furnished to the customers. The effluent discharged from the defendants’ filtration plant is highly colored and gives out a strong and offensive odor, and with the exception of the chemicals, added in the process of filtration all the impurities in the effluent have been taken from the river but so far from the banks as to justify an inference that none of them would have entered plaintiff’s intake, and they are discharged in concentrated form. The waters of the river are otherwise largely polluted both above and below the filtration plant of defendants and it is impossible to determine with any degree of definiteness the proportion of the entire pollution caused by the defendants, but that some of the pollution of the water from which plaintiff takes its supply is caused by this discharge of effluent from the filtration plant of defendants is a fair inference. In an action to enjoin the city and its board' of water commissioners from discharging the waste effluent from the municipal filtration plant into the intake from which plaintiff receives and distributes water for drinking and other domestic uses, held, that plaintiff will be granted judgment enjoining defendauts during the continuance of plaintiffs leasehold and franchise rights from discharging said effluent into the river, said judgment to contain a provision to the effect that it be suspended for six months to enable defendants to provide another outlet.</p> <p>That the acts of defendants are in the nature of continuing trespasses for which an action at law does not afford an adequate remedy, and while ordinarily equity does not interfere to prevent the infliction of merely nominal damages that rule has no application to the case at bar.</p> <p>A contention of defendants that the discharge from the municipal filtration plant into the river was authorized by the approval of the plans for the construction of said plant by the state board of water supply held untenable, as they were unable to show the approval of the plans providing for the discharge of the waste effluent into the river, or a certificate from the state board of health'therefor as required by section 76 of the Public Health Law, and they also failed to show a permit from the secretary of war as required by section 13 of the act of congress of March 3, 1899, which renders such discharge into navigable waters unlawful without such a permit.</p>

<p>Action to set aside a liquor tax certificate.</p>

<p>Liquor Tax Law — section 8, subds. g, io — application for liquor tax certificate — act of county treasurer in passing upon application ministerial — when application refused.</p> <p>While an applicant for a liquor tax certificate is required to state whether or not there has been filed with the certificate of the issuing officer a notice of abandonment pursuant to subdivision 9 or 10 of section 8 of the Liquor Tax Law, the statute neither authorizes nor permits him to state whether or not such notice is null or void.</p> <p>The act of a county treasurer in passing upon an application for a liquor tax certificate is ministerial, and where at the time the application is made there is on file in his office a notice of abandonment in proper form it is his duty under the statute to refuse the application.</p> <p>A county treasurer in passing upon an application for a liquor tax certificate is bound only by such statements as are required or permitted by the statute and on which the right to issue a certificate depends, and a statement that a notice of abandonment is “null and void” whether true or false is not material and does not affect the authority to issue the certificate.</p> <p>A liquor tax .certificate granted upon an application which stated that a notice of abandonment was “ null and- void ” is void ab initio where the premises for which the certificate is issued are legally disqualified to be certificated, and the bond accompanying said certificate is without consideration and no recovery can be had thereon.</p>

<p>Civil service — rights of volunteer firemen — transfer of duties to another — city of Hew York — when action of commissioner of water supply will not he interfered with hy court.</p> <p>The rights of a veteran volunteer fireman holding the position of assistant engineer in the department of water supply, etc., of the city of New York are prescribed by section 22 of the Civil Service Law and he is not entitled, upon a reduction of the force, to be retained until all non-veterans holding positions similar to his have been dismissed.</p> <p>The transfer of relator’s duties to another assistant engineer already in the department was not the appointment of any one in his place, nor was the continuation of an engineer in another borough to do similar work at a reduced salary a denial of relator’s right to a preference in appointment.</p> <p>The action of the commissioner of the department of water supply, etc., in reducing the number of employees in his department in the interest of economy will not be interfered with by the court.</p>

Application under section 545 of the Code of Civil Procedure, to strike out as irrelevant and redundant a certain paragraph of the answer.

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

<p>Certificate of reasonable doubt — motion should be made at Special Term.</p> <p>A motion for a certificate of reasonable doubt should be addressed to and determined by a regularly appointed Special Term and not by a justice of the Supreme Court, even though he be the justice sitting at that term, but where the district attorney makes no objection to the form of the application it may be regarded as waived, and the court and not a justice thereof will consider the motion on its merits.</p> <p>Upon a motion for a certificate of reasonable doubt the court need not arrive at a positive conclusion that the trial court erred; it is enough if in the opinion of the court there is reasonable doubt whether the judgment of conviction should stand and it is not necessary to show that the alleged error did in fact prejudice the defendant, but the court must determine that the error complained of could not in any way have affected or prejudiced the defendant, before it is warranted in denying the certificate.</p> <p>Defendant was the vice-president of a company which owned a tract of land which was subdivided into lots; four of them, upon which was due their ratable share of a blanket mortgage covering 187 lots, were sold to F., and the policy of title insurance, delivered by defendant to the purchaser,' guaranteed to her that the lots were free from incumbrance. Defendant was convicted of grand larceny in the first degree upon the theory that he had, prior to the delivery of the deed and policy of insurance and the payment of the purchase price, made statements to the purchaser which induced her to part with her money and that it was then the defendant’s intention to cheat and defraud her. On the trial the purchaser testified that she knew that the company which issued the policy of title insurance was to release the property at the close of the trial and that she still owned the lots which had as the uncontradicted testimony showed a present value in excess of the purchase price. On granting defendant’s motion for a certificate of reasonable doubt, held, that while defendant knew of the ¡blanket mortgage he also knew .that to all intents and purposes !'the property was free and that the purchaser could suffer no loss by reason of the incumbrance and in addition defendant had a right to rely upon the equitable rule that the primary fund out of which the mortgagee could enforce and collect his mortgage was the unsold mortgaged property, because such property as had been sold would not be applied to the mortgage debt until the unsold property was first exhausted.</p>

<p>Motion for alimony and counsel fee.</p>

<p>Application for interlocutory judgment by default in action to annul a marriage.</p>

<p>Motion to review taxation of costs.</p>

<p>Nuisance — what is a — restriction against use of property abutting on certain streets — when hospital for crippled children not included — constitutional law.</p> <p>A hospital for crippled children is not a nuisance per se.</p> <p>The legislature cannot permanently incumber its trusteeship over the public streets for private esthetic benefit, and, where a statute relating to the widening of certain streets and containing a restriction against the erection of certain buildings was amended so as to release from the restriction most of the property originally affected thereby, the amendatory statute is not unconstitutional because it abolished the restriction without providing for any compensation.</p> <p>Neither corporations nor individuals have any vested right that the law shall continue to be unchanged.</p> <p>Land once acquired for street purposes may have added burdens and limitations, within the category of street purposes, placed thereon even though a private detriment to abutting owners be the result.</p> <p>A restriction in a statute against the use of property abutting certain streets for different kinds of trades and businesses either inherently dangerous, notoriously offensive or sharply obnoxious to the moral or esthetic sense does not include a hospital for crippled children.</p>

<p>Application for a peremptory or an alternative writ of mandamus.</p>

<p>Civil service — dismissal of veteran volunteer fireman not violation of section 14 of Civil Service Law — when alternative writ of mandamus granted.</p> <p>Relator, a veteran volunteer fireman holding a position in the competitive class in the department of water supply, etc., of the city of New York, was dismissed or suspended in consequence tif the reduction of the number of employees in that department. Held, that as relator’s duties were not necessarily appurtenant to his position or to any position in the competitive class, the transfer of some of such duties to an employee holding a position in the exempt class was not a violation of section 14 of the Civil Service Law which provides that “no person shall be transferred to, or assigned to perform the duties of, any position subject to competitive examination; unless he shall have previously passed an open competitive examination equivalent to that required for such position, or unless he shall have served with fidelity for at least three years in a similar position,” nor did the facts justify the inference as matter of law that relator’s dismissal or suspension was in bad faith, and no case was made out for the granting of a peremptory writ of mandamus to compel his reinstatement.</p> <p>Where, however, upon the petition and the opposing papers an issue is raised as to whether relator’s dismissal or suspension was in good faith in a legal sense, an alternative writ of mandamus may be granted to try out such question, and also, if relator desires, the question whether or not his duties were transferred to an employee in the exempt class.</p>

<p>Civil service — when, veteran of Spanish War not entitled to he retained in his position in preference to other employees not veterans — when petition for reinstatement does not entitle to transfer.</p> <p>Upon a reduction of the force in the department of water supply, etc., of the city of New York a veteran of the Spanish War is not entitled to be retained in his position of assistant engineer in preference to other employees who are not veterans.</p> <p>Where relator, before being advised as to his probable dismissal, had applied for a transfer to a position made vacant by the retirement of the holder in preference to one not a party to the present proceeding, his petition for reinstatement does not entitle him to a transfer to said position.</p>

<p>Motion to set aside verdict.</p>

<p>Action for the construction of a will.</p>

<p>Action, for an accounting.</p>

<p>Negotiable instruments — bills of exchange — extension of due date of commercial paper to meet extraordinary situation — when action on •bill of exchange not maintainable in this state.</p> <p>A law which extends the due date of commercial paper to meet an extraordinary situation, such as the disruption of a nation’s business system hy actual warfare, "is neither repugnant to natural justice nor offensive to good morals.</p> <p>A bill of exchange drawn, accepted and made payable in the kingdom of Belgium where all the parties at the time of the transaction resided and did business is a Belgium contract, and, where by a decree of “ moratorium ” promulgated in Belgium before the maturity of said hill of exchange the due dates of all negotiable instruments were postponed and extended indefinitely, no action is maintainable in this state thereon, as the rights of the parties cannot be affected by the accident that defendants were within the jurisdiction of this state.</p>

<p>Application to have order of discontinuance vacated, and case restored to the calendar for trial.</p>

<p>Demurrer to indictment.</p>

<p>Action on the commercial calendar of the City Court upon a promissory note for $1,000, made by the defendant to the order of the plaintiff. Motion by the defendant to set aside a verdict directed for the plaintiff upon the trial.</p>

<p>Carriers — when not estopped from recovering schedule rate — Public Service Commissions Law.</p> <p>Where through the oversight or mistake of a railway agent a ticket was sold to defendant good for transportation to and from a certain point for less than the regular schedule rate, the railway company is not estopped and may recover from defendant the difference between what he paid for his ticket and the amount of the regular schedule rate posted in accordance with the Public Service Commissions Law.</p>

<p>Motion to compel plaintiff to serve a reply.</p>

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

<p>Supplementary proceedings — jurisdiction of County Court of Bronx county — receiver — Code Civ. Pro., § 2447 — Domestic Relations Law.</p> <p>The County Court of Bronx county, upon the institution therein of proceedings supplementary to an execution, has jurisdiction to order the judgment debtor to turn over his property to the receiver appointed by the City Court of the city of New York under a prior judgment, where such receivership has been extended to the judgment upon which said supplementary proceedings are based.</p> <p>Under section 2447 of the Code of Civil Procedure the application for such an order may be made by the judgment-creditor.</p> <p>On a motion for an order requiring a judgment debtor to turn over to his receiver in supplementary proceedings a certain policy of life insurance which, though his wife was named as beneficiary therein,, contains a clause reserving to •the judgment debtor the right to change the beneficiary, the surrender value of the policy may be applied in payment of his debts under section 52.of the Domestic Relations Law.</p>

<p>Negligence — provision as to operation of motor vehicle — action for personal injuries — Highway Law, § 282(2).</p> <p>The object and purpose of section 282(2) of the Highway Law, which provides: “No person shall operate or drive a motor vehicle who is under eighteen years of age, unless such person is accompanied by a duly licensed chauffeur or the owner of the motor vehicle being operated,” is to promote the safety of those traveling the public highways.</p> <p>While a motor vehicle is not of itself to be deemed a dangerous machine, it becomes such in the hands of a careless and inexperienced person.</p> <p>Where, in an action for personal injuries received by plaintiff in a collision between a vehicle driven by him and an automobile owned by defendant but operated at the time of the accident by his sixteen-year-old son, it appeared that defendant granted his son’s request for leave to take the machine down town to make a purchase, that on the way he picked up several of his school companions and on the way home ran into the rear of plaintiff’s wagon, throwing him from his seat and severely injuring him, and the evidence shows a clear case of negligence on the part of the son, a verdict in favor of plaintiff will not be disturbed.</p> <p>An instruction to the jury that defendant was chargeable with negligence in permitting his son to run the car on the day when the accident occurred was proper.</p>

Motion by plaintiff for interlocutory judgment of divorce upon the verdict of a jury in his favor upon issues settled and directed to be tried by a jury.

<p>Vendor and purchaser — conditional sale—contracts —Personal Property Law, § 65 — what is not a retaking within meaning of.</p> <p>Where money is paid either on the purchase price of furniture which is to become the property of the one who made the payment or as rent for the use of the furniture, the transaction must be construed as a “ conditional sale ” within the meaning of section 65 of the Personal Property Law if upon payment in full of the purchase price it is agreed that the title to the furniture is to vest in the vendee.</p> <p>The assignment by the conditional.vendee of his rights under the contract is not a “ retaking ” within the meaning of section 65 of the Personal Property Law.</p> <p>But where the original vendee of the furniture was discharged from the employ of the assignee of the vendor’s right ■under the contract of sale, who turned her out of the house where the furniture was, it was “ retaken by the vendor or his successor in interest,” and not having been sold at public auction within sixty days from the assignment, as required by the statute, the vendor was liable to the vendee for the amount of all purchase moneys paid.</p>

<p>Corporations — certificate of incorporation — action to enforce individual liability of stockholder for unpaid stock.</p> <p>Upon the filing of a certificate of incorporation the liability ■ of the subscribers becomes fixed without the formal issuance of stock to them.</p> <p>In an action to enforce the individual liability of a stockholder for unpaid stock, as authorized by section 56 of the Stock Corporation Law, it is no defense that defendant subscribed for sixty-three shares as shown by his certificate on the understanding that all but five of them were to be transferred to other parties later.</p> <p>After a business corporation has incurred an honest debt, a subscriber to the certificate of incorporation, duly filed, cannot, in an action to enforce the individual liability of a stockholder, be permitted to say that he should not be held liable because (1) he did not pay ten per cent down on all shares of stock issued to him; (2) he was under no obligation to pay until all the capital stock had been subscribed, or (3) the debts covered by the complaint were not valid debts of the corporation and not enforcible because the whole capital had not been paid in before said debts were incurred.</p>

<p>Trusts — agreement to pay salary — associations — when trust invalid for indefiniteness.</p> <p>Testatrix left all her property to her brother, defendant’s intestate, “ after carrying out any requests I may make to him in my lifetime as to the disposition of my estate for charitable objects.” The brother by letter agreed with plaintiff, a nursing association, to pay the salary of a third nurse so long as the association should support the other two,' stating that said salary would be paid out of the funds left by his sister for that purpose, and such payment was made until shortly before his death.</p> <p>Held, that as there was no specific fund to which a trust could attach and no definite proof that defendant’s intestate became possessed of any property left by testatrix and the claimed trust was invalid for indefiniteness, a finding of a trust ex maleficio was not warranted.</p>

<p>Action to-recover back moneys claimed to have been paid for taxes levied against lands of another.</p>

<p>Action for subrogation to mortgagee’s rights under a paid mortgage.</p>

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

<p>Action to set aside two tax deeds.</p>

<p>Application for an alternative writ of mandamus.</p>

<p>Action to set aside the conveyance of a farm in town of Mayfield, Fulton county, F. Y„</p>

<p>Demuebeb to complaint.</p>

<p>Mcraorr for an injunction pendente lite.</p>

<p>. Action to recover damages for breach of an oral contract.</p>

<p>Automobiles—negligence — when automobile unregistered in foreign state is trespasser on highway — what is a reckless and wanton act.</p> <p>Recklessness is an indifference to the rights of others whether wrong is done or not, but it does not necessarily mean that an act complained of as reckless was done intentionally or purposely.</p> <p>“ Recklessly ” when used conjunctively with “ wantonly ” always means more than negligence.</p> <p>Wanton negligence is an act of one who without having the intent to injure is conscious from his knowledge of existing circumstances and conditions that his conduct will naturally or probably result in injury.</p> <p>In Massachusetts an unregistered automobile is a trespasser on the highway and has no rights against other travelers except to be protected from reckless or wanton injury.</p> <p>While plaintiff, a New York corporation, was operating a motor bus in the state of Massachusetts, not registered therein, with a chauffeur unlicensed in that state in violation of section 9 of the Motor Vehicle Law of the state of Massachusetts, the motor bus was practically destroyed in a collision with the automobile of defendant. In an action to recover as damages the value of the bus it appeared that while within the limits of the city of Pittsfield said bus going westerly at about twelve or fifteen miles an hour, carrying in addition to the chauffeur twenty passengers, turned to the left of a vehicle going in the same direction in order to pass it. Just at the point where the motor vehicle was turning back to the right of the road, over the crest of a hill appeared a seventy horse power car ' owned by defendant and driven by a chauffeur who was unaccompanied; the emergency brake of said car had Been broken and was known by the chauffeur to have been broken and out of commission and was tied up so that it could not be used, and had been tied up by the chauffeur, so that it could not be used. The defendant’s car coming down the incline at the rate of fifty or sixty miles an hour, going from side to side of the road, digging up the highway as it came along, crashed into the motor vehicle and practical^ destroyed it.</p> <p>The defendant’s chauffeur testified to the broken condition of the emergency brake and that the last he remembered was just after passing a certain house near the crest of the hill. From that moment he recalls nothing as to what happened. He was in the hospital for two 'months after the accident with a fractured skull, and it is to be presumed that because of the injury which he sustained we have the failure of his recollection.</p> <p>On motion to set aside a verdict in favor of plaintiff and for a dismissal of the complaint, held, that it was fairly a question for the jury to determine as to whether the movement of defendant’s car as it came over and down the. hill was a reckless and wanton act as against which, even under the decisions of the Supreme Judicial Court of Massachusetts which are controlling, plaintiff was to a degree protected, and defendant’s motion will be denied.</p>

<p>City of New York — action to recover teacher’s salary— salary does not necessarily increase with years of service.</p> <p>The salary of teachers in the high school of the city of New York by resolution of the board of education does not neeessarily increase with the number of years of service but is dependent on the condition set forth in the pay schedule.</p> <p>The legislature may fix any condition no matter how unreasonable as a condition precedent upon which an increase in pay is dependent unless some constitutional provision is violated.</p> <p>Up to December 31, 1911, plaintiff, an assistant teacher in the high school, received the maximum salary of $1,900 under the schedule adopted by the board of education of the city of New York taking effect May 3, 1900. By a schedule of salaries adopted May 24, 1911, and approved by chapter 902 of the Laws of 1911, plaintiff’s salary was increased to $2,050, the amount paj^able on the ninth year of service. On January 1, 1912, plaintiff commenced her twelfth year of service. The resolution of the board of education of May 24, 1911, provided “ No one shall advance beyond the salary of the ninth year unless after investigation and inspection he is declared * * * to be a teacher of superior merit.” In an action by plaintiff to recover the difference between what she had been receiving and the amount of salary scheduled for the twelfth year of service it appeared that she had failed to obtain the certificate of superior merit although she had made application therefor. Held, that plaintiff was not entitled to recover and defendant’s motion for judgment on the pleadings should be granted.</p>

<p>Code of Criminal Procedure — section 465(7)—motion for new trial on ground of newly discovered evidence.</p> <p>A new trial may not be granted under section 465(7) of the Code of Criminal Procedure relating to newly discovered evidence where the freshly proffered proof goes simply to impeach or discredit a witness sworn upon the first trial, or is merely cumulative.</p>

<p>Accounting — by one holding fiduciary relations to two corporations.</p> <p>Where defendant while occupying a direct fiduciary relation to plaintiff, an insurance company, also occupies a like relation to its majority stockholder, another corporation, he is precluded from making any personal profits by concealing his knowledge from plaintiff, or by not carrying out arrangements made by him with the majority stockholder for plaintiff’s benefit, and plaintiff is entitled to an accounting.</p>

<p>Banks — private — when depositors not entitled to share in proceeds — Laws 1908, chap. 479.</p> <p>Where on the failure of a private bank none of-the depositors entitled to share in the proceeds of a bond filed pursuant 'to chapter 479 of the Laws of 1908 can be paid in full, depositors who after the date on which the liability on the bond expired made numerous deposits and prior to said date made withdrawals, the aggregate of which in each case more than equaled the amount of money on deposit on the day the liability on the . bond ceased, and no specific application of the moneys withdrawn or paid out was made, the law will apply such payments to the deposits on hand when the bank failed, and the depositors are not entitled to share in the proceeds of the bond.</p>

<p>Appeal by defendant from a judgment of conviction of a Magistrate’s Court.</p>

<p>Contracts — executory — assignment of interest in patent — provision for payment of royalties — when contract an entire one — extension of covenant to" faithfully protect patent.</p> <p>An executory contract, which is not necessarily personal in its character, and. which consistently with the rights and interests of the adverse party can be performed by the assignee and does not contain a provision to the contrary, is assignable.</p> <p>S by a written contract granted to defendant for a term of five years the “ exclusive right to manufacture and sell ” wdthin a defined territory certain paper packing boxes protected by letters patent issued to the inventor and by him assigned to it. The contract, after making provision for the payment of royalties by defendant to S, provided that the payment for the right to manufacture and sell should not be less than $500 for each and every year during the life of the contract. By the contract S agreed that he would not during the time limit thereof sell within the defined territory any box, etc., and that he would “ faithfully protect said letters patent from any and all substantial infringements.” The contract did not expressly in words or substance run to the parties, their heirs or legal representatives nor did it expressly provide that it should not be assignable. S assigned the contract together with all his title and interest in the patent but defendant, which continued to pay the agreed royalties to S until the expiration of the contract, had no knowledge of the assignment until after the contract had expired. In an action to recover the difference between the aggregate amount of the royalties paid and the total guaranteed minimum royalty for the full term of the contract, held, that as no personal services were required of S under the contract and it not appearing that he had any technical knowledge of the invention or any general scientific ability, or that he had any superior financial strength, or that there was any intimate or confidential relation existing between him and defendant, the contract was assignable.</p> <p>That S by the assignment of his interest in the patent which deprived him of his power to perform the covenant to “faithfully protect ” it, thereby depriving defendant of the means of compelling performance of said covenant, violated his contract with defendant just as effectually as if he- had expressly renounced his liability under it prior to its expiration.</p> <p>That notwithstanding the provision for periodic payments the contract was an entire one.</p> <p>That the subject of the covenant to “ faithfully protect ” the patent was of such a nature as to extend to the whole contract, was in fact the essence of it, and the breach of such covenant not only released defendant from payments which accrued previously but also from those which accrued subsequently to the breach of the covenant.</p>

<p>Motion to punish judgment debtor for contempt in disobeying an injunction order.</p>

<p>Evidence,— failure of proof — damages — negligence — when motion for new trial granted.</p> <p>Where a complaint alleges that a wanton and malicious injury to the real property of plaintiff was caused by the defendant “ turning on ” the water in the upper apartments therein in such volume as to flood them, and the evidence in support of plaintiff’s case seems to establish with reasonable certainty that the water was not turned on but that the injury complained of was caused by permitting the waste water from defendant’s refrigerator to overflow, it is error to dismiss at the close of plaintiff's case that part of the complaint dealing with the damage caused by the overflow because of a failure of proof.</p> <p>That as the evidence might warrant an inference that the overflow of the water was not a matter of negligence but that defendant intentionally caused it to run through the floor thereby injuring the ceiling underneath, which if proven would entitle plaintiff to recover notwithstanding the allegation of the complaint that the water was “ turned on,” plaintiff’s motion for a new trial after a verdict for defendant will be granted.</p>

<p>Case — on appeal — costs — Code Civ. Pro., §§ 997, 3251 — General Rules of Practice, Rule 34.</p> <p>A case made by defendant containing the evidence on the trial cannot be treated as a bill of exceptions by simply naming it as such, and plaintiff who prepared and served amendments to the same is entitled to tax as part of his costs an item of twenty dollars under section 3251 of the Code of Civil Procedure.</p> <p>The “case” on appeal provided for by section 997 of the Code of Civil Procedure embraces what was formerly known and is still described in Rule 34 of the General Rules of Practice as a “ bill of exceptions.”</p>

<p>Injunctions — when granted — operation of motor vehicle in city — what is a common carrier — Laws of 1915, chap. 667.</p> <p>One who operates in a city a motor vehicle connected with a bus line, a stage route and a motor vehicle line or route, all of which are feeders, connections, inducements, advertisers, solicitors, aids to and a part of his system of carrying passengers for hire from said city to points beyond the corporate limits, is a common carrier within said city within the meaning of chapter 667 of the Laws of 1915, and his operation of the motor vehicle line within the city without the consent of the municipal authorities and without procuring a certificate from the public service commission as to the necessity and public convenience of such business is a'violation of the statute, and an injunction will be granted restraining him from operating his motor vehicles and carrying passengers for hire within said city.</p>

<p>Motion for a resale upon the foreclosure of a mortgage.</p>

<p>Proceedings to revoke a liquor tax certificate.</p>

<p>Motion for a writ of mandamus.</p>

<p>Certificate of reasonable doubt — when granted — to whom application made — indictment for perjury—Code Grim. Pro., § 529.</p> <p>The provisions of section 529 of the Criminal Code that an application for a certificate of reasonable doubt whether a judgment of conviction should stand shall be made to a regularly appointed Special Term of the Supreme Court held within the judicial district in which the conviction was had is mandatory, and the court is without power to direct that the motion be heard by another justice.</p> <p>Where defendant, upon the trial of an indictment against him for perjury in swearing to an affidavit attached to the “ Report of the Condition of the Union Bank of Brooklyn,” which alleged no falsity in any oath required by law, was convicted of perjury in swearing to an affidavit attached to the “ Quarterly Report of the Union Bank of Brooklyn,” a different, separate and distinct paper, a crime for which he had not been indicted and for which without indictment he could not legally be brought to trial, his motion for a certificate of reasonable doubt will be granted.</p>

<p>Application by plaintiff for the substitution of an attorney.</p>

<p>Landlord and tenant — liability to keep sidewalk in front of leased premises free from any incumbrance — municipal corporations — actions.</p> <p>A tenant who covenants to keep the sidewalk in front of the leased premises free from any incumbrance is not liable to a pedestrian who while walking upon the sidewalk slipped into a rut or hole therein and was injured.</p> <p>If the pedestrian has a good cause of action he is abundantly protected in his rights against the city; therefore, in an action against the tenant on the theory that he owed the plaintiff, in respect to the sidewalk, the same duty that is imposed by law on municipal corporations which are given control of streets within their jurisdiction, defendant is entitled to judgment on the pleadings.</p>

<p>Depositions — examination before trial — when order granted.</p> <p>The mere fact that from sources other than defendant plaintiff can obtain information sought by an order for defendant's examination before trial is no reason why the order should not be granted.</p>

<p>Motion to vacate an order for the examination before trial of witnesses and parties to the action.</p>

<p>Motion to vacate an order for the examination of defendant before trial.</p>

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

<p>Automobiles —• collision with horse and wagon at unlighted street intersection — negligence — evidence — Second Class Cities Law, § 30.</p> <p>The evidence in an action for damages to plaintiff’s automobile which collided with defendant’s horse attached to a wagon at an unlighted street intersection on a dark night, considered, and held, that the questions of defendant’s negligence and of plaintiff’s freedom from contributory negligence were properly submitted to the jury and that its verdict in favor of plaintiff was not contrary to the weight of evidence.</p> <p>Where the accident occurred in a city of the second class the admission in evidence over defendant's objection of a traffic rule or regulation adopted by the commissioner of public safety of the city reading as follows: “All vehicles shall exhibit during the period from one hour after sunset to one hour before sunrise, on the left side of the vehicle, a white light visible within a reasonable distance in front of such vehicle, and a red light, visible within a reasonable distance, in the rear thereof,” calls for the reversal of the judgment in favor of plaintiff on the ground that by section 30 of the Second Class Cities Law (Laws of 1909, chap. 55) the power to make such regulation is exclusively within the power of the common council.</p>

<p>Motion to set aside a verdict of the jury rendered herein, and for a new trial, upon the ground that the case was not properly upon the calendar.</p>

<p>Appeal, on questions of law from a judgment rendered in Justice’s Court, city of Utica, upon a verdict of a jury.</p>

<p>Damages — in action to recover for injury to plaintiff’s automobile — evidence when incompetent and inadmissible — dismissal of complaint when reversed.</p> <p>In an action to recover for damages to plaintiff’s automobile sustained in a collision with a street railway car, testimony that before the commencement of the action plaintiff received money from an insurance company covering the damage sued for is incompetent and inadmissible, and its reception over plaintiff’s objection and exception calls for the reversal of a judgment dismissing the complaint.</p>

<p>Appeal from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, first district, rendered December 15, 1914, dismissing plaintiff’s complaint without prejudice, and with costs. The action was on a policy of burglary insurance.</p>

<p>Bonds — action on — executors and administrators — assignment of distributive share in estate — when assignee entitled to recover.</p> <p>While a husband who was administrator of his deceased wife’s estate cannot as an individual recover of the surety on his bond for a default committed by him in his representative capacity, he may assign his distributive share in the estate, and, if he does, the assignee has a right in a proper ease to recover on the bond subject only to such defenses as exist at the time of the transfer.</p> <p>Where after such an assignment is made the administrator commits a devastavit, the assignee in an action upon the bond of the administrator is entitled to recover the amount of his distributive share, but no more.</p>

<p>Appeal from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, third district, rendered April 5,1915, in favor of the defendant, dismissing the complaint on the merits, with costs. The action was brought to recover damages for negligence resulting in injury to property.</p>

<p>Appeal from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, fifth district, rendered June 5, 1915, after a trial without a jury, in favor of defendant on the merits, with costs. .The action was brought to recover eighty-eight dollars and ten cents, being the second half of taxes for 1914, paid in advance on property sold by plaintiff to The City of New York.</p>

<p>Contracts — by illiterate and ignorant workmen — action for work, labor and services when payments ceased — foreclosure.</p> <p>The plaintiffs who were illiterate and ignorant workmen, one of them being unable to write his name in English, entered into a written. contract with a building company to perform certain work in connection with the erection of a tenement house for a certain price payable in instalments the last of which, to-wit, $100, being payable fifteen days after completion of the job. The work proceeded until payments provided for by the contract stopped, and upon the statement of defendant, a lawyer versed in real estate transactions, that he would pay everything that was coming to them, plaintiffs proceeded with the work and from time to time thereafter during the progress of the building operation received from defendant, by his personal check, the instalments due under the contract or payments which aggregated all of the sums to which plaintiffs were entitled under the contract except the last payment. In an action for work, labor and services and breach of contract defendant claimed that his relation to the building was simply that of attorney for the president of the building company and as the representative of certain mortgagees. It appeared that defendant advanced his own money in order to complete the building and that he made arrangements whereby five mortgages were placed upon the property during the progress of the work three of which covered advances from his individual funds. He also took control of the building under an assignment of the rentals after the completion of the building. The payments which he had been making to plaintiffs ceased and he commenced a foreclosure of the third mortgage which he had placed on the property for a client. Held, that to permit the scheme of cutting off the mechanics’ liens filed by plaintiffs against the building by said foreclosure suit did not comport with justice, and that a judgment in favor of defendant on the merits after a trial without a jury should be reversed and a new trial ordered.</p>

<p>Landlord and tenant — lease of hotel “ with appurtenances ” — easement from side door over adjacent property of landlord.</p> <p>Easements—■ light and air.</p> <p>A tenant’s duty to pay rent has its correlative in the landlord’s duty to protect the tenant in his possession of the premises.</p> <p>Where the lease of a building “ with the appurtenances,” previously used by the landlord as a hotel, contemplates that the tenant shall continue such business and provides that upon performance of the covenants on his part he shall peaceably and quietly enjoy the premises during the term, he as between himself and the landlord who owned the adjoining estate acquired as part of his leased premises a door, vestibule and storm shed with the land on which they stood, together with a beneficial easement during the term of the lease over the servient estate adjoining his for their use as existing at the time of the making of the lease.</p> <p>In this state implied easements of light and air are not recognized.</p> <p>Maddox, J., dissented.</p>

<p>Fleading — each cause of action must he complete in itself — pleading due performance of condition precedent in action to recover on contract — demurrer.</p> <p>Where a complaint attempts to set out several causes of action each, separate and numbered, must have within itself the necessary allegation of fact to constitute a cause of action entirely independent of every other cause of action alleged in the complaint.</p> <p>Where a complaint merely seeks a recovery on distinct actions at law with an effort to involve équitable considerations as to the last alleged cause of action, but none of the alleged causes of action after the first one make any effort to incorporate within them the essential facts pleaded in the alleged first cause of action, they do not state facts sufficient to constitute the several causes of action attempted to be set up.</p> <p>Where the first cause of action, after alleging the acts of the partnership between defendant and another and that defendant is the surviving partner, alleges the entering into a contract in writing which is made a part of the complaint and that plaintiff under and pursuant to said contract performed work, labor and services and furnished materials of the reasonable value of a certain sum, which was the agreed price, and that plaintiff has performed all the conditions of said contract on his part and seeks to recover the ten per cent reserved fund withheld during the performance of the contract which is replete with things to be performed by plaintiff as a condition precedent to the payment of the final ten per cent of the contract price, but the complaint fails either to allege the due performance of these conditions or to allege specifically the performance of each one of them, the complaint fails to state a cause of action under the contract and is subject to demurrer.</p>

<p>Motion for an injunction.</p>

Demurrer to plaintiff’s complaint on the ground that it does not state facts sufficient to constitute a cause of action.

<p>Motion for a temporary injunction in a taxpayer’s action. The nature of the action and the facts, so far as material, appear in the opinion.</p>

<p>Bridges — private — toll—bridges subject to condemnation for Barge Canal— constitutional law — Laws of 1913, chap. 801.</p> <p>The statute (Laws of 1913, chap. 801) amending the Barge Canal Act (Laws of 1903, chap. 147) by which private bridges and their franchises were made subject to condemnation for the Barge Canal was not within the power of the legislature to enact, being in direct conflict with section 4 of article 7 of the Constitution pursuant to which the Barge Canal Act became a law.</p> <p>Where the appropriation of a part of plaintiff's lands at . each end of its toll bridge spanning the Mohawk river on a section thereof being canalized for the Barge canal involves the destruction of the bridge, it is entitled to an injunction restraining the canal board from destroying the bridge except on condition that the state build a new bridge on the site of the old one of suitable kind in the place of the one destroyed or to be destroyed, notwithstanding the enactment of said statute of 1913.</p>

<p>Application to be admitted to citizenship.</p>

<p>Action in equity.</p>

<p>Taxes — Tax Law, § aia — municipal corporations — legal presumption that assessment of property is regular — certiorari proceeding to review assessment of property — evidence.</p> <p>Under section 21a of the Tax Law (added by Laws of 1911, chap. 117) providing that in all cities there shall be an additional column in the assessment roll in which there shall be set down the value of the land exclusive of the buildings thereon and that the total assessment can only be reviewed, the petitioner on certiorari to review an assessment as a whole may give testimony as to an alleged overvaluation of the lands and at the same time adopt the figures of the taxing officers so far as the value of the buildings is concerned.</p> <p>The legal presumption is that an assessment of property for the purposes of taxation is regular and the determination of the taxing officials will not be disturbed unless it clearly appears that injustice has been done.</p> <p>The evidence is a certiorari proceeding to review an assessment of property, including both upland and lands under water in the vicinity of New York harbor (Williamsburg section of Brooklyn), considered and held to show that the unit of value was applied without good reason to relators’ properties under water in that the same was higher than the unit of value fixed for property of a similar character adjoining on either side; accordingly the assessment held excessive and corrected, the court fixing the values upon the properties.</p>

<p>Application for a writ of habeas corpus.</p>

<p>Action to recover a penalty under section 151 of the Tenement House Law.</p>

<p>Application for an injunction pendente lite.</p>

<p>Injunctions — when granting of, denied — taxpayer’s action—municipal corporations.</p> <p>A situation where a plaintiff apprehends injurious consequences to himself but which neither actually exists nor is threatened by the defendant is not sufficient ground for an injunction.</p> <p>Where, in an action brought by a taxpayer of the city of New York against the commissioner of water supply, gas and electricity and a street lighting company, the relief asked for is that said commissioner be restrained from paying any bills of the lighting company defendant for alleged services in connection with the lighting of the public streets of the city for the year 1915 in excess of the reasonable value of such services, and that said lighting company be required to refund to the city a certain sum alleged to represent money .in excess of the amount earned under its contract with the city for the year 1914, but the only relief demanded on plaintiff’s motion"' for an injunction pendente' lite is that the commissioner be enjoined from auditing and certifying for payment any bills theretofore presented by the lighting company for alleged Services rendered by it in connection with the lighting of the public streets of the city, which bills plaintiff asserts are excessive and extortionate, that they have been brought about by the official misconduct, bad faith and fraud of the commissioner in his official capacity, and that there is grave danger that said bills will be audited, approved and certified by said commissioner to the great damage of the city, and all the material allegations in the papers of plaintiff are denied by defendants, the granting of the injunction before trial will be improper and will be denied.</p>

<p>Pleading — complaint — demurrer — in action to recover damages for wrongful act— what creates a cause of action.</p> <p>The fact that plaintiff, in an action to recover damages for a death caused by a wrongful act, would be confronted with a serious obstacle on the trial in establishing the proximate cause of death, a mere matter of evidence, should not be determined against plaintiff upon a demurrer which admits that the death was caused solely by the acts of defendants.</p> <p>Plaintiff’s intestate, while attending to her duties as an employee in defendant’s store, was seized with a chill and commenced to vomit, and - expressing a desire to go home for immediate medical treatment asked for a pass to get her hat, coat and other wearing apparel, which was refused on the ground that no passes could be given before the closing time of the store. She was forced to remain in the store for over two hours and when defendants finally allowed her to go home, and while still suffering from the severe chill, she went out in the cold weather and made her way home, a distance of five miles, as well as she could. On arriving at home she went to bed, her condition became worse and despite medical aid and treatment she died within six days. On demurrer to a complaint alleging that her death was caused solely by the acts of defendants in forcing her to remain in the store after she was seized with a chill, and by their failure to take any care or precaution to protect her from the elements or to assist her home after she left the store, held,.that such act of defendants was a positive wrongful one in a legal sense and in the circumstances created a cause of action.</p>

<p>Action for the specific pérformance of an alleged contract.</p>

<p>Action -for an injunction.</p>

<p>Judgment — taken by default for failure to appear at trial — motion to vacate — restoration of cause to general calendar.</p> <p>At the instance of the plaintiff on the call of the calendar a cause was marked “ ready for trial ” and, thereafter for more than sixty days, appeared on the “ reserve,” and then on the day calendar. A default taken against plaintiff on his failure to appear for trial was opened upon papers which while making a sufficient showing of probable merits presented no sufficient reason or excuse for failure to appear for trial or to comply with the court rules as to affidavits for adjournment. On motion to vacate the judgment taken by default, held, that the case should be restored to the general calendar but at the foot thereof.</p>

<p>Demurrer under the 8th paragraph of section 488 óf the Code, to the plaintiff’s complaint having been made herein, same was brought on for argument at a motion term of this court, and was overruled. Thereupon the plaintiff prepared findings, interlocutory judgments, etc., and procured the taxation of a bill of costs containing the usual items of costs after notice and before trial, and a trial fee of an issue of law. Plaintiff comes here on a motion to review this taxation, claiming that motion costs only should have been awarded.</p>