Volume 92 — New York Miscellaneous Reports

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

<p>Sunday — what is violation of Sunday laws — motion picture shows — what acts constitute public nuisance — injunctions — construction of statutes regulating observance of the Sabbath — Second Class Cities Law — actions to restrain nuisances.</p> <p>A judge at special term should follow a decision of the Appellate Division of another department until his own Appellate Division, or the Court of Appeals, pronounces a contrary rule of law.</p> <p>The mere act of conducting a moving picture show in an enclosed room is not in and of itself a violation of the Sunday laws.</p> <p>The courts may take judicial notice of the fact that during the hours moving picture shows are exhibited people largely congregate about the entrance thereto going in and coming out to such an extent as to cause at times a congestion of travel in front of the building.</p> <p>While an act which one proposes to do may not of itself be unlawful it may become so because of the consequences which would arise from the act.</p> <p>Acts which interfere with the sanctity of the Sabbath as a day of rest and religious devotion, divert the mind from divine and sacred thoughts and which interrupt the repose and religious liberty of the community constitute a public nuisance.</p> <p>Where a moving picture theatre to which an admission fee is charged is upon a thickly populated city street in the immediate vicinity of a large church and parish buildings connected therewith where religious services are largely attended and Sunday schools held, and the attendants upon such services would be called upon to pass and repass the theatre where signs and posters advertise the exhibition to be given within the building and where a sign board on the outer edge of the sidewalk informs passers-by that the show is going on, and the box office-is but a few feet within the sidewalk, an injunction may be granted to restrain the operation of said theatre, on Sundays, as. a nuisance.</p> <p>The statutes regulating the observance of the Sabbath are remedial and are to be construed liberally in respect to the mischiefs to be remedied.</p> <p>Under sections 4, 152, of the Second Class Cities Law the commissioner of public safety may bring and prosecute actions to restrain nuisances.</p>

<p>Mandamus — to compel reinstatement of exempt fireman after removal — Laws of 1914, chap, in — civil service.</p> <p>One appointed to the office of executive secretary to the state architect after the taking effect of ehaper 111 of the Laws of 1914, which made the secretary or assistant secretary of the state architect removable at his pleasure, is not entitled to a writ of mandamus to compel his reinstatement after removal, though he be an exempt fireman and no charges were made against him.</p>

<p>Special proceeding instituted by tbe petitioners as property owners under section 959 of tbe charter to review an assessment levied for a local improvement.</p> <p>Tbe petitioners own three lots in tbe borough of Brooklyn facing on Belmont avenue on tbe southwest corner of Vermont street and two lots facing on Vermont street immediately south of tbe .other three. An assessment upon said lots with others in the vicinity was confirmed April 7, 1914, and was for regulating, grading, curbing and laying sidewalks on Belmont avenue from Pennsylvania avenue to Wyona street. Included in the assessment were two awards made by the board of assessors of the city of New York to owners of property on Belmont avenue, one to Schombs, the owner of the southeast corner of New Jersey avenue, of $500, and one to Eisler, the owner on the southwest corner of New Jersey avenue, of $565, for damages to buildings on said parcels by an alleged change of grade of Belmont avenue involved in the improvement according to the determination of the city authorities. The awards were made on the authority of section 951 of the charter. The share of these awards borne by the petitioners is twenty-one dollars and seventy-eight cents for each of their three lots on Belmont avenue and ninety-nine cents and one dollar and forty cents, respectively, for the. two lots on Vermont street, a total of sixty-seven dollars and seventy-three cents.</p> <p>As the law stood at the time of the levy of the assessment which included the awards complained of (April 7, 1914), the legislature had decreed that there should be no liability on abutting owners for originally establishing a grade; and no liability for changing a grade except under certain circumstances. Charter, § 951, as it was on the date above mentioned. The material part of this section, as amended by Laws of 1912, chapter 483, reads as follows:</p> <p>“ § 951. All cases where a change of grade of any street or avenue has been made prior to the taking effect of this act shall, as to the liability to make compensation for damages caused by such change of grade, be governed by the laws in force at the time such change of grade was made. After the taking effect of this act there shall be no liability to abutting owners for originally establishing a grade; nor any liability for changing a grade once established by lawful authority, except where the owner of the abutting property has built upon or otherwise improved the property in conformation with such established grade, and such grade is changed after such buildings or improvements have been made. In such cases damages occasioned by such change of grade to such buildings and improvements shall be ascertained and assessed in connection with and as a part of the expenses of grading or otherwise improving the street or avenue in conformity with the grade as changed. A grade shall be deemed established by lawful authority within the meaning of this section where it was originally adopted by the action of the public authorities, or where the street or avenue has been used by the public as of right for twenty years, and been improved by the public authority at the expense of the public or of the abutting owners. All laws inconsistent herewith are hereby repealed. * *</p> <p>The applicants claim that this case was one of original establishment of grade and that the awards were illegal; and, if it was one of change of grade, that the awards are still illegal.</p> <p>Application was made to the court under section 959 of the charter, for an order modifying the assessments against the property of the petitioners by deducting therefrom such part thereof as represents their share in the awards of damages made as above stated. The special term referred the matter to the official referee to take proof of the matters set forth in the petition and to report his opinion thereon to the court. The official referee heard the proofs of the petitioners and the city called as a witness a member of the board of assessors, who testified to the proceedings of the board in making the assessments and awards. The referee reported that, in his opinion, there was no change of grade-in Belmont avenue between Pennsylvania avenue and Wyona street within the méaning of section 951 of the charter, and that there was substantial error in the assessment, in that it included in part awards for damages by alleged change of grade. He recommends that the assessments upon the petitioners ’ property be reduced twenty-one dollars and seventy-eight cents on each of lots 23, 24 and 25 — ninety-nine cents on lot 26 and one dollar and forty cents on lot 27. On the coming in of the report, the petitioners renewed their application, under section 959, for a modification of the assessments as recommended by the referee.</p>

<p>Ferries — right conferred by section 83 of Greáter New York Charter — powers of County and City Courts to grant licenses for “ keeping ferries ” — Highway Law, § 270.</p> <p>The exclusive right conferred by section 83 of the Greater New York Charter upon the city to establish and permit the operation of all ferries using any part of its water front impliedly repeals, so far as concerns the territorial water rights of tbe city, tbe provision of section 270 of tbe Highway Law which empowers county and city courts to grant licenses for “ keeping ferries ” in the respective counties and cities for live-year terms.</p>

<p>Contracts — validity of, how determined — libel — actions — when motion for judgment on the pleadings denied.</p> <p>The validity of a contract is to be determined as of the time when it was made.</p> <p>In order to invalidate a contract on the ground that it is immoral and against public policy it should appear that the agreement itself contemplated illegal acts or acts condemned as against good morals or public policy; it is not sufficient that acts were done which might be condemned.</p> <p>A clause in a contract for the publication by plaintiff of a book to be ■written by defendant on the subject of “Animal Experimentation,” in tbe handling of which it was not natural to anticipate a libel upon anybody, providing that the author would hold harmless and defend the publishers against any suit, claim, demand or recovery by reason of any injurious or libelous matter alleged to be contained in the book is valid.</p> <p>After the publication of the book a resident of England brought a libel suit against the publisher and author in the English courts because of certain matter contained in the book. Plaintiff herein notified defendant herein who admitted his liability to pay any costs and expenses incident to the defense of the action and requested plaintiff to employ solicitors in Great Britain to appear and defend for both defendants. Plaintiff herein complied with such request, paid the expenses of defending that action, which was settled without trial with the advice, approval and authority of defendant herein. Thereafter plaintiff requested defendant .to make good the sum so paid, as agreed by the contract, but defendant refused and in an action to recover such amount pleaded that the contract, although fully performed by plaintiff and although defendant had accepted the fruits thereof, was not binding upon him because immoral and against public policy. Held, that there was nothing unlawful in the contract and defendant’s motion for judgment on the pleadings should be denied.</p>

<p>Motion by plaintiffs-respondents to dismiss an appeal to the Appellate -Division upon the ground that the defendants-appellants have served an insufficient case.</p>

<p>Courts — judgment rendered in City Magistrate’s Court reversed — appeal.</p> <p>The courts of this state cannot take judicial notice.of city, ordinances. • ■ \</p> <p>A judgment rendered in a City Magistrate’s Court adjudging defendant guilty of operating a motor vehicle at an illegal rate of speed in violation of a city ordinance must be reversed where the record on appeal fails to show that such ordinance was proved as a fact.</p>

<p>Appeal by the defendant from a judgment of the City Court of the city of Fulton, entered upon a verdict in favor of the plaintiff and from an order denying the motion for a new trial made upon the minutes.</p>

<p>Appeal from an order of tbe City Court of tlie city, of New York vacating a judgment and permitting the defendant to serve an answer.</p>

Appear, from an order of the City Court of the city of New York granting a motion to dismiss the complaint for lack of prosecution.

Appeal by defendant from a judgment of the City Court of the city of New York, entered on a directed verdict, and from an order denying a motion for a new trial in an action brought to recover a balance on de1 posit in the defendant bank to the credit of plaintiff’s testator at the time of his death.

Appeal by defendants from a judgment of the City Court of the city of New York, entered upon the verdict of a jury directed by the court.

Appeal by defendant from a judgment of tbe -City Court of tbe city of New York entered upon tbe verdict of a jury and from an order denying a motion for a new trial in an action to recover damages for breach of a contract of employment.

<p>Contracts — damages for breach of — conflicting evidence as to'sale'of goods — when judgment entered on verdict reversed.</p> <p>Where in an action to recover damages for breach of a-contract to deliver goods one of the main issues was whether the goods were sold, if at all, by defendant personally or as agent of a corporation, and the evidence on the point is conflicting, an instruction to the jury that as matter of law the contract was made with defendant is error for which a judgment entered on a verdict in favor of plaintiff will be reversed.</p>

.Appeal by defendants from a judgment of the City Court of the. city of New York, in favor of plaintiff, after a trial by a judge without a jury.

Appeal by plaintiff from a judgment of the City Court of the city of New York, in favor of defendant, after a trial by a judge without a jury.

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

Appeal by the plaintiff from a judgment of the City Court of the city of New; York in its favof for' the sum of $140, and from an order denying a motion to set aside the verdict and for a new trial.

<p>Appeal from a judgment of the City Court of the city of New York entered in favor of the plaintiff for $1,018.10 after trial by the court.</p>

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

<p>Actions — to recover deposit — evidence:— appeal.</p> <p>Fine — construction of — pecuniary punishment for commission of crime or misdemeanor.</p> <p>The fact that a deposit by B with defendant for the support of the family of E, who had been convicted of embezzlement in another state and was waiting sentence, was made by'a certified cheek drawn by plaintiff and delivered by her husband to B is insufficient to show any right of action in plaintiff to recover the deposit, there being no evidence of her connection with the transaction, and a judgment directed for plaintiff at the close of the ease will be reversed and the complaint dismissed.</p> <p>A sentence to pay a fine with provision that defendant-stand committed until it be paid is not equivalent to a sentence to a term in prison within the agreement that the deposit should be returned if E were sentenced to such term.</p> <p>A sentence to a term of imprisonment is personal punishment for the commission of a crime or misdemeanor imposed by a court whereby a person is involuntarily deprived of his liberty and confined in a prison for a definite term. A fine is pecuniary punishment for the commission of a crime or misdemeanor, and a further provision that defendant stand committed until the fine is paid is no part of the punishment.</p> <p>The words of the agreement concerning E “but is given his liberty to enable him to support his wife and children,” added to the words “ is not sentenced to a term in prison,” cannot be construed so as to mean that no fine should be imposed or into an agreement for an indefinite suspension of sentence.</p>

<p>Insurance (life) — provision in application for — delivery of policy to insured not waived by agent’s statements.</p> <p>A provision in an application for life insurance that the policy to be issued should not take effect until the first premium was paid and the policy delivered to the insured while in good health is not waived by the agent of the company, upon receipt of a part of said premium from the wife of the insured, informing her that her husband was insured, and that he, the agent, had received the policy but had forgotten to bring it and would send it by mail.</p> <p>Bijub, J., dissents'.</p>

<p>Pleading — allegations of complaint — representation to employer that infant was indebted to defendant — assignment of salary due or to become due.</p> <p>A complaint states a cause of action for injury to property within the jurisdiction of the Municipal Court of the city of New York which alleges in substance: That in April, 1915, the infant of whom plaintiff! is the guardian ad litem was in the employ of a corporation and had so been for over two years prior thereto; that in that month the defendant represented to the employer that the infant was indebted to the defendant and had given an assignment of her salary as security for such indebtedness and that defendant made claim to the salary due or to become due for that reason; that solely because of said representation the employer discharged the infant. That the representation was untrue, made wilfully and maliciously with wanton disregard of plaintiff’s rights and with the purpose of extorting from the plaintiff the payment of money that plaintiff did not owe, and after further corroborative allegations there is an added allegation that by reason of the foregoing plaintiff has been out of employment since April, 1915, and that salary due her at the time of her discharge has been withheld because of such alleged assignment.</p>

<p>Appeal from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, in favor of the defendant upon a counterclaim entered upon a directed verdict and also from certain interlocutory orders.</p>

<p>Lease — landlord and tenant — action to recover rent — termination of tenancy — foreclosure — Real Property Law, §§ 232, 252.</p> <p>It is only where there is an agreement for hiring in which the term of a lease remains undetermined that section 252 of the Real Property Law applies.</p> <p>A three-year lease of premises .expiring May 1, 1915, was. terminated by a mortgage foreclosure prior to July 1, 1914, and the tenant paid the rent reserved to the new landlord each month until January 30, 1915, when he paid the rent for that month and vacated the premises. In an action to recover rent for February, 1915, on the theory that there was an indefinite hiring which section 232 of the Eeal Property Law converted into a hiring until May 1,1915, judgment was granted for plaintiff. Held, that there being no agreement except such as could be implied from payment of monthly rent the tenancy must be held to be a monthly one which terminated at the end of every month, and that the judgment should be reversed and the complaint dismissed.</p>

<p>Appeal from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, entered in favor of the plaintiff for $167, after trial by the court.</p>

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

Appeal by defendant 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 defendant from an order of tbe Municipal . Court of the city of New York, borough of Manhattan, first district, which vacated and set aside a judgment entered herein after a trial before the court.

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

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

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

<p>Appeal by plaintiff: from an order of tbe City Conrt of tbe city of New York, denying bis motion to vacate an eos parte order wbicb directs bis examination before answer.</p>

Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, seventh district, for $536 and costs.

Appear from an order of the Special Term of the City Court of the city of New York, vacating an order of arrest and discharging the defendant from the Custody of the sheriff of New York county without bail.

Appeal by defendants from that part of an order denying certain modifications sought of an, order of the City Court of the city of New York directing the examination before trial of one of the defendants.

<p>'Appeals from an order of the City Court of the city of New York appointing a receiver in supplementary proceedings, • and from an order of the City Court denying a motion to vacate the said order appointing said receiver.</p>

<p>Demurrer to complaint.</p>

<p>Sunday — violation of Penal Law, § 2143.</p> <p>An information alleging the performance by defendant on Sunday of acts incidental to the carrying on of his business as the proprietor of a public billiard or pool room, in waiting upon players or customers who were on said day playing billiards or pool then and there permitted by defendant to be engaged in, for which privilege and service he charged and received a money consideration, charges the misdemeanor of unlawfully performing labor on Sunday in violation of section 2143 of the Penal Law which provides that: “All labor on Sunday is prohibited except the works of necessity and charity.”</p>

<p>Corporations — foreign — when entitled to maintain action in this state —■ General Corporation Law, § 15.</p> <p>A foreign corporation which has neither capital invested in this state, nor an office for the transaction of business therein, is entitled to maintain an action for goods sold and delivered by one conducting a commission business in this state and who was plaintiff’s selling agent under an agreement terminable by either party on sixty days’ notice, and a claim that plaintiff was “ doing business ” in this state at the time of the sale without a certificate in violation of section 15 of the General Corporation Law is untenable.</p>

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

<p>Demurrer to complaint.</p>

This is an action to charge the defendant with the support of a poor person, who was assisted by the superintendent of the poor of the plaintiff from November 6 to December 2, 1914— the plaintiff claiming that such relief was properly chargeable to'the county of Ontario, from which county he had come to the county of Tompkins. All notices required by law to fix liability were duly given. On the trial a jury was waived and the evidence was taken before the court.

<p>Marriage — how considered in this state — action for annulment — ¡ evidence.</p> <p>In this state marriage is considered in no other light than as a civil contraot.</p> <p>Where, in an action to have a marriage adjudged null and void ah initio upon the ground that plaintiff was under age at the time of her marriage and that the necessary legal consent, etc., had not been obtained, it not only appears that there was no intention on the part of either plaintiff or defendant that the formal ceremony should he considered as a valid and legal marriage, but it is affirmatively established that the ceremony was entered into as a mere subterfuge for the purpose of obtaining a certificate of marriage which could be used by plaintiff in her endeavor to obtain a theatrical engagement thereby overcoming the ohjeetion that being under the legal age she could not be provided with an engagement without first having the consent of her mother or guardian to such employment, and it further appears that the marriage was never consummated and that defendant joined in the prayer for relief for the annulment of the marriage and that both plaintiff and defendant subsequently contracted other marital relations, the evidence is sufficient to justify a court of equity in granting the relief prayed for.</p>

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

<p>Mandamus'— when veteran fireman not entitled to be retained in service of city of New York — civil service — when application to compel reinstatement denied.</p> <p>A veteran fireman is not entitled to he retained in the service of the city of New York as a captain in the department of docks and ferries in preference to others who are neither veterans nor firemen when it becomes necessary to reduce the number of persons in that position.</p>

Motion by the defendant Broadway Flushing Development Company, under sections- 803 to 809 of the Code of Civil Procedure, for a discovery and inspection of the minute book or books of the plaintiff corporation.

Motion by creditor to restrain the public auction sale of the assigned property by the assignee and to vacate the notice of sale previously given and served by him.

<p>Motion to open the defendant’s default at Trial Term.</p>

<p>Accounting by assignee for the benefit of creditors.</p>

<p>Civil Service Law — Spanish-American veteran — mandamus to compel reinstatement.</p> <p>Section 22 of the Civil Service Law relating to veterans of the Spanish-American war does not give them a preference “ in appointment and promotion ” which includes a preference “ in retention ” but provides only that no such veteran who holds a position, etc., shall be removed except for ineompeteney or misconduct shown after a hearing upon due notice and stated charges and that if his position is abolished or becomes unnecessary for reasons of economy or otherwise he shall be transferred to any. branch of the service he shall be fitted to fill, meaning in ease a vacancy exist; otherwise his name shall be put on a special list.</p> <p>Laying off or suspension for lack of work or lack of appropriation, no one else being appointed to fill the position, is in effect abolishing the position and not a removal within the meaning of the statute.</p> <p>Where petitioner for a writ of mandamus to compel his reinstatement in the civil service claims to have been removed without a hearing but concedes and alleges that he received a letter “ laying him off ” on the ground of lack of work and lack of appropriation and for the purpose of reducing the force and does not specifically deny that his services were dispensed with for lack of appropriation or work or that his removal was in bad faith for the purpose of removing him without a hearing, his application will be denied.</p>

<p>Summary proceedings — for nonpayment of rent — when final order awarding possession of premises must be made by the justice — warrant — landlord and tenant — appeal — determination as to tenant holding over after nonpayment of rent past due.</p> <p>In a summary proceeding instituted in the Municipal Court of the city of New York for the nonpajonent of rent a final order awarding possession of the premises to the landlord must be made by the justice (Code Civ. Pro. § 2249) and signed by the clerk of the court (Municipal Court Act, § 1, ¶ 12; Code Civ. Pro. § 2251), and the warrant is issued, when so signed and delivered for execution.</p> <p>Upon making the final order the justice, as to the proceeding, becomes functus officio except on motion to set aside the verdict and to grant or deny a new trial, and he has no authority by an indorsement at the foot of said order to stay the issuance of the warrant to remove the tenant, and any such attempted stay is a nullity.</p> <p>After an appeal taken from the final order granted June 29, 1915, had been perfected the county, judge stayed the execution thereof, the issuance of a warrant thereupon and all proceedings to remove the tenant until ten days after the determination of the appeal. Subsequently the order of stay was modified by an order striking out and vacating the stay for ten days after the determination of the appeal and it was further ordered that the tenant furnish another bond. The final order appealed from was affirmed September 20,. 1915, and the order of affirmance was duly entered on that day. On application for a writ of mandamus to compel the clerk of the court to issue and deliver a warrant to remove the tenant, held:</p> <p>That when the final order was made and delivered to the clerk it was his duty to sign and issue the warrant unless stayed from so doing by some statute, or by an order of a court of competent jurisdiction,, and that the performance of such duty should be compelled by a writ of mandamus.</p> <p>That the order of the county judge staying the execution of the final order and the issuance of the warrant justified the clerk’s failure to sign and issue the warrant pending the appeal and until the order affirming said final order was filed with him or came to his knowledge.</p> <p>That the fact that the tenant deposited with the clerk on the day following su6h affirmance the necessary sum to pay and discharge the rent then due, interest and costs, did not avail either the clerk or the tenant, there being no authority for such deposit or payment to the clerk of the Municipal Court.</p> <p>That by appealing from the final order the tenant did not lose his right to avail himself of the privilege provided in paragraph 1 of section 2254 of the Code of Civil Procedure of paying “at any time before a warrant is issued the rent due and interest and penalty,” etc., and where it appears that at the time of the tender of such amount the warrant had not been signed or issued the motion of the landlord for a peremptory writ of mandamus to compel the issuance of the warrant will be denied as matter of law and not in the exercise of discretion on the ground that the landlord had not shown a clear legal right to the writ.</p> <p>The tenders made hy the tenant while not a satisfaction of the rent, interest and costs due suspend the landlord’s remedy to enforce the final order hy the execution of the warrant of removal and may stay the execution thereof hy such payment to the landlord.</p> <p>While a final order in summary proceedings does not adjudge the amount of the rent due and unpaid it is á determination that the tenant holds over after nonpayment of rent past due.</p>

<p>Supplementary proceeding — when order for examination of judgment debtor becomes a nullity — when order of discontinuance need not be entered.</p> <p>Where an order for the examination of a judgment debtor fin supplementary proceedings is allowed to lapse it falls and becomes a nullity, and no order of discontinuance need be entered as a prerequisite to a new order for his examination concerning his property.</p>

<p>Action for damages. Motion to set aside verdict.</p>

<p>Negotiable instruments — action against indorser of promissory note — notice of protest — evidence — when motion to set-aside verdict denied.</p> <p>At the maturity of a promissory note, made and dated in the city of New York within the borough of Manhattan, the indorser both resided and had his place of business within said borough but added no address to his signature, and notice of protest was mailed to him at an address which had not represented his residence for more than six months. In an action against him, as indorser, he alleged that he never received notice of protest and contended that as matter of law, on the face of the notary’s certificate, he had been relieved from liability by the notary’s act in undertaking to specify a street and number as well as a post-office address and then failing to ascertain and use the correct street and number of defendant’s residence on the day of protest. The evidence was to the effect that the notary endeavored to ascertain defendant’s address from the makers of the note, tried to reach a former cashier who he thought knew some of the parties and enlisted the note teller and another employee in finding the address; they spent three-quarters of an hour or more in the' search and finally used the information afforded by the last issue of the standard Manhattan directory. Held, sufficient to- show that the notary had made reasonable effort and adequate inquiry as to defendant’s street address and had acted upon the best information obtained from such inquiry, and that a motion to set aside the verdict in favor of plaintiff should be denied.</p>

<p>Corporations — foreign — what is meaning of “ managing agent ” — jurisdiction of Justice’s Court of Utica — Code Civ. Pro., §§ 432, 2879.</p> <p>The manager of one of two stores conducted by a foreign corporation is a “managing agent” within the meaning of section 2879 of the Code of Civil Procedure.</p> <p>The word “ corporation ” in said section 2879 includes a foreign corporation, and service of the summons in an action against it in the Justice’s Court of the city of Utica upon a manager of one of defendant’s stores therein is sufficient to give the court jurisdiction without the necessity of complying with the provisions of section 432 of said Code.</p>

<p>Appeal from a judgment of a Justice’s Court rendered in favor of defendant.</p>

<p>Marriage — presumption of legitimacy — evidence — Code Civ. Pro., § 1745-</p> <p>Wills — provision for annuities — partition — marriage — presumption of legitimacy — when infant entitled to share in property partitioned.</p> <p>The presumption of legitimacy is so strong that it cannot be overthrown without directly proving every link in the chain of evidence which destroys the presumption even though that involves establishing a negative.</p> <p>Section 1745 of the Code of Civil Procedure legitimates, as to the innocent parent, a child born of a marriage void because the other parent had a husband or wife living.</p> <p>The will of testator, survived by his widow, four daughters and two sons, after providing for annuities charged upon his estate for the widow and daughters, disclosed his intention to devote the remainder of his property to his sons, and to accomplish such purpose and influenced also by his desire to keep the estate together in the interest of the annuitants he gave all his property subject to the legacies and annuities to trustees to receive the rents and profits thereof and apply the same to the education, support and maintenance of his two sons during their lives and the remainder he disposed of as follows: “And on their deaths the same shall belong and descend * * * to their heirs and descendants * * * and in case of the death of either” of said sons “then his share (one-half) of the income or profits shall be paid to the heirs of such descendants until the death of the survivor of my said two sons.” Held that the descendants of the two sons took the remainder per stirpes and not per capita.</p> <p>In an action for the partition of certain real property of said testator it was claimed that an infant defendant whose deceased father was a son of one of testator’s sons was illlegitimate because at the time of the marriage of her parents her mother had another husband living. The marriage of her parents was a ceremonial one followed by cohabitation of which she was the fruit and there was no evidence that her father knew of the former marriage. Held, that the presumption of her legitimacy was one of the strongest known to the law.</p> <p>The verdict of the jury on a framed issue that said infant’s mother had been married to one who was alive at the time of her marriage with the infant’s father, about two months later, established only the fact of the prior ceremonial marriage, which fact standing alone did not establish illegitimacy of said infant; that in order so to do it must be further shown that both parties were competent to contract the prior marriage and that the relation so created continued to exist when the second marriage took place, and said infant was entitled to share in the property. partitioned as an heir and descendant of her grandfather.</p>

<p>Summary proceedings — exclusion of evidence to dispossess — landlord and tenant — ■ when final order reversed.</p> <p>Under section 2244 of the Code of Civil Procedure a tenant in summary proceedings to dispossess Mm may counterclaim Ms damages because-of the false and fraudulent representations of the landlord in reliance upon wbieb the tenant claimed to have entered into the lease, and the exclusion of evidence tending to establish such counterclaim is error for which a final order awarded in favor of the landlord will be reversed and a new trial ordered.</p>

<p>Appeal from a judgment of the Municipal Court of the city of New York, fifth district, borough of Manhattan, on verdict of a jury in action to recover reward and from an order denying a motion for a new trial.</p>

<p>Motion for an order amending a notice of appeal nunc pro tunc and for an order granting a stay pending an appeal from an order of the Municipal Court.</p>

<p>Motion by respondents to dismiss the appeal herein.</p>

Motion by defendant for an order allowing an appeal to be taken from an order of tbe Municipal Court, overruling tbe defendant’s objections to tbe jurisdiction of tbe court.

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

<p>Specific performance — action for — when allegations of fraud immaterial — evidence.</p> <p>Iu au action for specific performance plaintiff’s relief depends wholly upon his contractual rights, and allegations of fraud on the part of defendant which only go to show motive are wholly immaterial.</p>

<p>Statutes — provisions of laws of Kansas — when statutes of state of New York may make like provisions. ' 1</p> <p>. Tbe laws of Kansas provide for community interest. A provision in a .decree of a court of competent jurisdiction in that state that defendant account for all community property belonging to plaintiff and. defendant wherever situated fixes the status of the parties and the judgment in an action brought in this state on said decree may make a like provision.</p>

<p>Demurrer to complaint.</p>

<p>Condemnation proceedings — when court will not interfere with report of commissioners of appraisal — limitation of landowner — evidence.</p> <p>The court will not interfere with'the report of commissioners of appraisal in condemnation proceedings unless it appears that some erroneous principle has been adopted, or it is clearly shown that the awards are either inadequate or excessive, or that the commissioners have been influenced by passion or prejudice.</p> <p>The rule is well established in this state that the owner of land taken in condemnation proceedings is to receive the full value of the land taken, not its value to him or to the person or corporation seeking to acquire it, but the market value of the property as between one who wants to purchase and one who wants to sell.</p> <p>While the landowner is not limited in compensation to the condition in which the property is at the time, or to the use which he makes of it, he is entitled to receive its market value for any purpose to which in the judgment of the commissioners it is adapted; he is, however, not entitled to be paid more merely because the land is peculiarly adapted to the use to which it is intended to be applied, and the fact that the land will be used for a reservoir rather than a farm or any other lawful .business forms no material out of which an award is to be made; the commissioners committed no error therefore in excluding testimony tending to show the. availability of the landowner’s property for particular purposes.</p>

<p>Appeal from an order affixing and assessing a transfer tax.</p>

<p>Contracts — interest of vendee in property sold — sales — when contract not contrary to public policy — principal and agent.</p> <p>Automobiles — sale of car — assignment of all interest in title — executions— when plaintiff entitled to maintain action against sheriff.</p> <p>The interest of a vendee in property sold under a contract of conditional sale is not subject to levy and sale under an execution issued upon a judgment against him.</p> <p>Where plaintiff became the agent of an automobile company to sell its cars at list price plus freight, his commission to be fifteen per cent, of the list price, the transaction did not amount to a sale to plaintiff at eighty-five per cent of the list price.</p> <p>Such a contract is not contrary to public policy and the agent did not acquire full and complete title to the ears sold through him because in the agency agreement the automobile company restricted the sale of its ears at less than the list price.</p> <p>Plaintiff, as agent, sold a ear to one U and took from him the required buyer’s order and agreement, approved and accepted by the automobile company and plaintiff, by which TJ agreed that the title to the ear should remain in the automobile company until paid for. At a time when a balance was due from TJ upon the purchase price the company assigned all its right and interest in the ear to plaintiff and thereafter the sheriff levied upon the car and sold it under an execution issued on a judgment obtained against TJ. It also appeared that plaintiff forbade the sale of the ear by the sheriff under the execution and demanded the return of the car and possession thereof. Held, that plaintiff was entitled to maintain an action against the sheriff for the amount of the unpaid purchase price of the ear which was due at the time of the assignment to him of the automobile company’s tights.</p>

Appeal by the plaintiff from an order of the City Court of the .city of New York denying a motion to vacate and set aside the verdict of the jury.

<p>Corporations — liquidation of — service of summons after dissolution — attachment — Code Civ. Pro., § 638.</p> <p>Where the summons in an action against a Pennsylvania corporation was not served until after it was dissolved and its corporate existence ended and liquidation of the corporation ordered to be made under the direction of the commissioner of insurance of Pennsylvania according to the laws thereof, and it is claimed that the summons was served on the New York state superintendent of insurance and on the former agents of the corporation in New York state, an order denying a motion of the commissioner of insurance of Pennsylvania to vacate the judgment entered in favor of plaintiff and a warrant of attachment levied on certain funds alleged to be due said corporation from another and to set aside the service of the summons will be reversed and the motion granted.</p> <p>The corporation having been dissolved at the time of the attempted service no service of the summons was made, the attachment became inoperative under section 638 of the Code of Civil Procedure, and the judgment finally entered was void.</p>

<p>Appeal from an order of tbe City Court of tbe city of New York, denying motion to vacate warrant of attachment and judgment and to set aside service of summons herein.</p>

<p>Appeal by plaintiff from an order of tbe City Court of tbe city of New York vacating service of summons.</p>

<p>Interpleader — order of — when proposed intervenor not served with notice of application — when order not sustained.</p> <p>The court upon a motion for an order of interpleader should be able to see that there is some reasonable foundation for the claim of the third party and that defendant cannot without peril determine to which of the claimants he should pay the fund in litigation, and where these conditions are not shown to' exist the order cannot be sustained, and where the proposed intervenor was not served with notice of the application for the order it will be reversed and the motion denied.</p>

<p>Motions and .orders — disobedience of order — contempt — Code Civ. Pro., §§ 1241, 3247 — judgments.</p> <p>Where it is clear that the disobedience of an order directing payment of a sum of money by the respondent as a person beneficially interested under section 3247 of the Code of Civil Procedure, in an action brought by plaintiff as assignee of respondent, defeats ‘the remedy of plaintiff in the present action, the court is in duty bound to punish respondent as for a contempt under section 770 of the Judiciary Law; should it hereafter appear that respondent was unable to pay the amount so directed to be paid he may apply for relief under section 775 of the Judiciary Law.</p> <p>Section 1241 of the Code of Civil Procedure applies only to judgments and does not require service of a certified copy of an order as a condition precedent to a motion to punish as for contempt a disobedience thereof.</p>

<p>Conversion — of money deposited with defendant by plaintiff — when action maintainable — appeal.</p> <p>In an action for the conversion of money deposited by plaintiff with defendant, a judgment in favor of plaintiff was reversed on the theory that the record on appeal showed that plaintiff’s dealings were with defendant solely as general agent for a certain surety company and that, consequently, if defendant misappropriated or otherwise improperly disposed of the same or similar sums the remedy lay with his principal, but that no action in conversion was maintainable by plaintiff. The whole or bulk of the money in controversy was deposited in the bank account maintained by defendant as general agent of the surety company. Motion for reargument in the Appellate Term denied but motion for leave to appeal to the Appellate Division granted.</p>

Appeal by plaintiff from an order of tbe City Court of tbe city of New York, denying bis motion for judgment on tbe pleadings.

<p>Pleading — action to recover for pecuniary loss sustained through death of decedent — answer — .Workmen’s Compensation Law — negligence— demurrer — Code Civ. Pro., § igo2.</p> <p>In an action brought under section 1902 of the Cpde of Civil Procedure for the benefit -of the surviving .sisters, and brother of a, decedent who left him surviving no widow, father, mother or descendants, to recover. for the pebuhiary loss'alleged "to have been sustained by plaintiff through the- death of-debédeht, that portion of defendant’s -answer, after .'the denial of. any negligence as’ alleged in the complaint, which sets -forth as a further defense the statute commonly known as the Workmen’s Compensation Law, and alleges that plaintiffs intestate at the time of receiving the injuries resulting in his death 'was engaged in work within and under the provisions of said statute and that by the terms thereof defendant upon securing the payment of the compensation therein provided thereby became and was relieved of all liability for personal injuries sustained by its employees and particularly for any liability because of the death of plaintiff’s intestate, is subject to a demurrer on the ground that it is insufficient in law on its face to constitute a valid and legal defense.</p>

<p>Motion by defendant for judgment on tbe pleadings.</p>

<p>Action to restore a lapsed life insurance policy.</p>

<p>This is the return of an order to show cause granted at a Special Term by Mr. Justice L. C. Crouch, why an order heretofore made at a Special Term by Justice William. M. Ross, bearing date November 3, 1915, for the opening and examination of the voting machines used at the general election November 2, 1915, in the city of Utica, N. Y., should not be vacated and set aside, and providing in the meantime for a stay.</p>

<p>Demurrer to amended complaint.</p>

<p>Evidence — consideration of — undue influence — contracts — pleading — when motion to set aside verdict granted — trial.</p> <p>On the trial of an action brought on two promissory notes made- by defendant with plaintiffs intestate the claim of plaintiff that an agreement between decedent and defendant, pleaded as a defense, to cancel, destroy and annul said notes in consideration of defendant paying decedent a eertain sum annually during her lifetime in such amounts as she should see fit to request, was procured by undue influence, was submitted to the jury which rendered a verdict in favor of plaintiff. Held, upon consideration of all the evidence that there being no proof whatever in support of the claim that undue influence was exercised on plaintiff’s intestate, who was about eighty years of age and a half sister of deféndantis mother and had lived in his family for more than thirty years and in the family of his father for some fifteen years prior, and was not suffering from any impairment of her mental faculties at the time she executed the agreement in question, that the verdict was fairly against the evidence and defendant’s motion to set aside the verdict and for a new trial will be granted.</p>

<p>Application by the state commissioner of excise for an order revoking and cancelling a liquor tax certificate.</p>

<p>Application for payment of money to general guardian.</p>

<p>Action to declare a trust and to set aside agreement as having been obtained by fraud.</p>

<p>Motion to continue pendente lite a temporary injunction.</p>

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

<p>Divorce — when co-respondent has waived right to appear and defend — Code Civ. Pro. § 1757(2).</p> <p>Under section 1757(2) of tbe Code of Civil Procedure the co-respondent in an action for divorce has a right to appear and defend a charge of adultery against her at any stage of the action before the entry of final judgment; but where she sat throughout the trial with defendant and his attorneys, consulted with them in the court room, heard testimony to the effect that she was the proprietor of an assignation house and all the testimony of plaintiff and her witnesses besides.the testimony of members of her own family, a motion by her made after a verdict in favor of plaintiff for an order compelling plaintiff to accept service of her answer denying the allegations of the complaint and for a stay of entry of plaintiff's interlocutory judgment must be denied on the ground that the co-respondent had waived her statutory rights to appear and defend in the action.</p>

<p>Action for an injunction to restrain defendant from the enjoyment of a life estate in certain premises.</p>

<p>Motion to inspect the minutes of the grand jury.</p>

<p>Alimony — when court without power to insert provision for — divorce.</p> <p>Where no provision for alimony is contained in the final judgment granted in an action for separation the court is without power to subsequently insert such a provision.</p>

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

<p>Election Law, § 56 — custodian of primary records — designation of candidates — duties of inspectors — examination of ballots — when application to review action of inspectors of election, etc. denied.</p> <p>While in a summary proceeding under section 56 of the Election Law (Laws of 1911, chap. 891) to review the action of any custodian of primary records in canvassing and certifying the result of a primary election the court may make any change in the result of such primary election as' certified to by the custodian of primary records, it will not interfere until it is shown that the action of the custodian in canvassing and certifying the result is fraudulent, erroneous or in violation of some duty or responsibility imposed by law.</p> <p>The respondent, John A. Lewis, having been duly designated as a candidate for Democratic county committeeman for the second election district of the town of Arcade, Wyoming county, his name was printed on the official primary ballot and immediately below his name was a blank space. The whole number of votes east at the election was thirty-eight of which seventeen were counted and canvassed for “ E. D. Sherman,” two for “ D. Sherman,” one for “ Dee Sherman ” and eighteen for the respondent. The votes for Sherman were cast by writing in the name in the blank space on the ballot. The inspectors of primary election canvassed and returned the vote as above stated and the custodians of primary records thereafter issued a certificate of election to respondent. In a summary proceeding brought by E. D. Sherman under the Election Law to review the action of the inspectors of election and custodians of primary records and to require them to cancel the certificate of election issued to the respondent and to issue such certificate to the petitioner, the inspectors and custodians were all brought in as parties tc the proceeding. Held, that assuming that the affidavits submitted on the hearing abundantly show that two votes east at the primary election for “ D. Sherman ” and one vote for- “ Dee Sherman ” were intended for the petitioner and that if they were so counted they would change the result, there was nothing in the facts to show wherein the action or neglect of any public official had contributed in the slightest degree to this state of affairs, and that the application should be denied.</p> <p>It seems that the proper proceeding for petitioner to try out his title to the office would be by an appropriate action, the statute providing as a preliminary thereto for an examination of the ballots east, if so desired.</p>

<p>Code Civ. Pro. '§ 2681 — intention to supersede and repeal former section 1822 — action against maker of promissory note — executors and administrators — .construction of statute.</p> <p>By section 26S1 of the Code of Civil Procedure, enacted by chapter 443 of the Laws of 1914, in effect September 1, 1914, it was the legislative intention to supersede and repeal former section 1822 of said Code.</p> <p>In an administrator’s action against the maker of a promissory note payable to the order of plaintiff’s intestate, defendant may counterclaim for professional services as a physician to plaintiff’s intestate rendered by defendant, and a reply setting forth the formal matters relating to the granting of letters of administration to the plaintiff, etc., that on or about the 30th day of July, 1914, the defendant served an itemized statement of his claim for professional services (being the same claim alleged as a counterclaim), which was thereafter and on the 9th of September, 1914, rejected by the plaintiff as administrator and that by reason of the foregoing facts. the short statute of limitations had run against the aforesaid claim, is subject to a demurrer.</p> <p>The word “ shall ” in the last clause of said section 2681, which provides in substance that where a claimant against the estate has not filed a written consent that.his claim be heard and determined upon the judicial settlement of the accounts of the executor or administrator it shall be tried and determined upon such judicial settlement, is a word of permission enlarging rather than restricting the claimant’s rights, but, assuming that the provision is mandatory, it only applies where the claimant assumes the initiative in prosecuting his claim and does not deprive him of the right to interpose a counterclaim under section 506 of the Code of Civil Procedure when an executor or an administrator becomes an actor.</p> <p>Where the language of a statute makes that legal and possible which otherwise there would be no authority to do, it will be construed as permissive merely.</p>

<p>Process — courts — jurisdiction — presumption — attachment — personal service.</p> <p>Where the complaint in an action brought in the Supreme Court alleges two causes of action for breach of contract in the sale of goods by defendant, a resident of and doing business in the city of Palermo, Italy, to the plaintiff, a resident of and doing business in the city of Utica, N. Y., but it does not definitely appear where the contract was made or where the breach thereof took place, the court, on motion to set aside and vacate an order for the publication of the summons and the attempted service thereof under such order, may rely upon the presumption that the cause of action arose within the jurisdiction of the court and the motion must be denied.</p> <p>An order for the publication of the summons in such case is valid in form though it provides that personal service of the summons may be made agreeably to subdivisions 1 and 2 of section 443 of the Code of Civil Procedure. •</p> <p>Though it appeared of record that no levy had been made under a warrant of attachment filed in the action and that there are no goods or property of defendant in the United States upon which sueb a levy could be made, it is competent for plaintiff under section 683- of the Code of Civil Procedure to prove in support of the attachment the presence of property in this state that may be or has been levied on under the attachment.</p>

<p>Election. Law, § 416 — provisions of — when discrepancy in returns of election district — construction of word “ discrepancy ” — injunction — jurisdiction.</p> <p>Section 416 of the Election Law which provides “ Whenever it shall appear that there is a discrepancy in the returns of any election district, the county board- of canvassers shall summon the inspectors of election thereof and said inspectors shall, in the presence of said board of canvassers, or a bipartisan committee thereof, make a record of the number on the seal and the number of the protective counter, if one is provided, open the counter compartment of said machine, and' without unlocking said machine against voting, shall reeanvass the vote east thereon,” is applicable to voting machines alone which, when properly used, are reasonably accurate, and require the certificate made by the district inspectors to conform to a given standard; where an alleged return does not conform to the statute there is a discrepancy between it and the statutory requirement, and in such a case there is a discrepancy in the return, a lack of conformity, unconformity.</p> <p>The word “ discrepancy ” in said section is not to be construed in a narrow sense but in such a sense as ‘to justify as much relief in eases of error in voting machine districts as has been afforded for nearly seventy-five years in cases of error in districts where there has been voting by ballot;.</p> <p>A county board of canvassers is a ministerial body having no judicial power, and a temporary injunction restraining such board from opening, pursuant to a resolution of such board duly adopted, certain voting machines used at a general election in a city within the county upon the ground that such board has no jurisdiction in the premises to take such action or to open or cause to be opened such voting machines, will be dissolved on motion.</p>

<p>Costs — certiorari to review determination of state board of tax commissioners — order of Appellate Division reversed — remittitur of Court of Appeals amended — effect of stipulation as to costs.</p> <p>On appeal from an order of tbe Appellate Division entered on tbe bearing of a writ of certiorari to review a determination of tbe state board of tax commissioners made on nippeal by relators under section 175 of tbe Tax Law, which 'appeal was dismissed and tbe decision of tbe board of supervisors as to tbe equalization of tbe assessments for the year 1911 was affirmed, tbe Court of Appeals decided that tbe Appellate Division, whose order provided that relators recover •of respondents fifty dollars costs and disbursements and have Execution therefor, was without authority on said writ of sertiorari to determine disputed questions of fact involving the rights of the parties or to grant final judgment upon the facts found by it, but that said court should have reversed the determination of the state board of tax commissioners and remitted the proceedings to tbe state tax commission (tbe successors of said state board) for a new and further hearing upon the (merits, with costs in the Court of Appeals in favor of appellants. The original remittitur of the Court of Appeals provided as follows: “ That the order so appealed from be modified by providing in place of the findings, orders and directions tontained therein, that tbe determination of the state board of lax commissioners, • * • is reversed and set aside, and l,hat tbe proceeding be remitted to the state tax commission for a new and further hearing on the merits, with costs in favor of tbe appellants in this court,” and was amended by adding thereto tbe following: “the costs including disbursements therein provided shall abide the final determination of the proceeding and the amount of services and expenses of counsel in tbe proceedings shall be in all things subject to future order in the proceedings.” Pursuant to the order of the Court of Appeals a new and further hearing on the merits of the proceeding was had before the state tax commission and a stipulation in writing was entered into between the attorneys appearing in the proceeding and the supervisors of the several towns in the county of Nassau that the ratios which the assessed value of the real property located and assessed in said towns for the year 1911 bears to the full value thereof were as stated in said stipulation. On motion by relators to recover costs and disbursements, it was stated in the supporting' affidavits, and not denied, that it was agreed by all the parties and their attorneys that the amount of costs and disbursements to whieli relator town of Hempstead and its attorney were entitled, pursuant to section 178 of the Tax Law, should be left to the state tax commissioner to decide and that the question of said town recovering its costs and disbursements awarded by the Appellate Division should he left to the court to decide. The present motion is an attempt to make effective the other part of said agreement with respect to the costs and disbursements awarded relators by the Appellate Division, and should be granted, with ten dollars costs, as relators would have the right in the absence of agreement to present that question to the court for determination unless they had agreed as a part of the settlement to waive their rights to enforce the payment of costs and disbursements awarded to them.</p>

<p>Guardians — application for ancillary letters of guardianship — Code Civ. Pro., § 2654(2).</p> <p>Under section 2654(2) of tbe Code of Civil Procedure an application for ancillary letters of guardianship must be made by the person authorized to act as guardian within the county where the infant resides, but no provision of said Code authorizes the surrogate to issue joint letters of guardianship.</p>

<p>Release — terms of — action to recover for personal injuries — evidence —■ Code Civ. Pro., § 973.</p> <p>Where, in an employee’s action to recover for personal injuries, the court in the exercise of its discretionary power under section 973 of the Code of Civil Procedure grants defendant’s request for the trial of an issue as to the validity of the general release executed by plaintiff as preliminary to the trial of an action on the merits, and the verdict on said issue is in favor of defendant, and it appears that the proof is not sufficient to warrant the jury in finding that the settlement of plaintiff’s claim was not honestly made and the terms of the release fairly comprehended, a motion for a new trial will be denied.</p>

<p>Motion for a modification of judgment.</p>

Motion to cancel- and set aside a transcript of a judgment of the City Court of Hudson, filed in the office of the clerk of Columbia county, and to vacate the judgment docketed thereupon in the county. clerk’s office, and to set aside an execution issued on such judgment, and to direct the sheriff to return moneys in his hands which were collected pursuant to the execution.-