Volume 93 — New York Miscellaneous Reports

<p>Negotiable instruments — Negotiable Instruments Law", § 54 — pleading — fraud — bills, notes and checks — evidence.</p> <p>The provision of section 54 of the Negotiable Instruments Law that “Absence or failure of consideration is a matter of defense as against any person not a bidder in due course ” expresses a principle of substantive law and not a rule of pleading.</p> <p>The complaint in an action upon a check alleged that defendant made it “ for value received ” and that the payee “ duly indorsed and delivered the same to plaintiff for value.” The answer admitting the making of the instrument alleged “ that said check was not given for value received but was obtained from the defendant by fraud, deceit and misrepresentation as hereinafter more particularly set forth,” in a separate defense of fraud exercised by the payee in procuring the check, but such separate defense was stricken out for insufficiency because although it was alleged that defendant gave the check on the false representation that he was solvent in exchange for two drafts the answer did not allege on whom the drafts were drawn, or whether they were accepted and paid or not. Defendant did not ask leave to amend the separate defense so as to plead that the drafts were worthless and his motion for leave to amend so as to allege that plaintiff did not part with any consideration for the check and for a further separate defense that the check to the payee was without consideration' was denied, and a motion to strike out the separate defense was granted. As a result of the exclusion of proof offered by defendant of absence of consideration given either to himself for the making of the check or to the payee by plaintiff for its indorsement a verdict was directed in favor of plaintiff. Held, that defendant was entitled under the pleading to offer proof both of consideration for the making of the check and for its indorsement to plaintiff, and that the judgment should be reversed and a new trial granted.</p>

<p>Trial — of action to recover on policy of fire insurance — evidence — when new trial granted — fraud.</p> <p>Where on the trial of an action to recover on a policy of fire insurance plaintiff’s counsel instead of resting upon proof of the policy, and the award made by the appraisers, put his client on the witness stand to give testimony in anticipatory negation of defendant’s claim of fraud, but from his cross-examination as to the destruction of his books and the loss of a certain telegram and receipt plaintiff emerged discomfited and discredited. Held, that though the jury was charged that .the burden of proof on the issue of fraud was upon defendant the impression conveyed to the jury by the exceptional procedure at the trial was to the contrary, and that a -judgment entered on a verdict in favor of defendant should be reversed and a new trial granted as the general discrediting of plaintiff before the jury could not be translated into that affirmative and substantial proof of fraud without which the verdict herein could not be sustained.</p> <p>Shears, J., dissents.</p>

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

<p>Evidence — when properly excluded — trial—contracts — evidence of — breach of contract — action to recover deposit guarantying performance.</p> <p>Where, in an action to recover for artificial ice furnished, the defense is that it was not satisfactorily frozen and not of a merchantable quality as warranted, proof of a bacteriological examination of the ice made three days after the last delivery which disclosed the presence of dangerous bacilli is properly excluded.</p> <p>Admissions by plaintiff’s manager and the chairman of its executive committee that the ice was defective and that plaintiff had agreed to make an allowance of fifteen cents a cake were properly received.</p> <p>Evidence held ample to submit to the jury the question whether .the warranty was in fact broken and whether the breach applied to all the ice delivered.</p> <p>Where plaintiff delivered the ice to defendant’s customers and received from them for defendant’s account sixty cents a cake, and because of the poor quality of the ice defendant was obliged to arrange with these customers that it would furnish fifteen cents worth of natural ice without charge as an allowance upon each cake of artificial ice, defendant was damaged to the extent of fifteen cents a cake.</p> <p>This court on review of the dismissal of defendant’s counterclaim may consider only whether a prima facie case has been established.</p> <p>Where defendant immediately upon discovering that the ice was defective notified plaintiff but continued to take the ice only because the chairman of plaintiff’s executive committee agreed to make an allowance of fifteen cents a cake, defendant by his acceptance of the ice did not waive the breach of warranty, as the statute (Laws of 1911, chap. 571, § 130; Sales Act) provides: “In the absence of express or implied agreement of the parties, acceptance of the goods by the buyer shall not discharge the seller from liability in damages or other legal remedy for breach of any promise or warranty in the contract to sell or the sale. But, if, after the acceptance of the goods, the buyer fails to give notice to the seller of the breach of any promise or warranty within a reasonable time after the buyer knows, or ought to know, of such breach, the seller shall not be liable therefor.”</p> <p>Though defendant could not rescind the contract for breaches of warranty on previous deliveries it had an absolute right to refuse to take other installments if they were also defective; and where plaintiff stated in effect that it could not furnish better ice defendant had a right to consider such refusal so material a breach of the contract as to justify it in refusing to receive any further installments, and, where after waiver of such breach plaintiff was given until the next day to furnish merchantable ice and failed so to do, defendant was then justified in refusing to proceed and in bringing an action to recover a deposit guarantying its performance of the contract.</p>

<p>Insurance — policy insuring against burglary — evidence of defendant’s waiver admitted without objection.</p> <p>Evidence — false represéntations — when exclusion of, error.</p> <p>Where. liability under a policy insuring against burglary, theft or larceny is denied on the ground that the policy was obtained by fraud and misrepresentation, and before suit defendant returned the proofs of loss together with the amount of premium paid, the insured is not bound by a condition of the policy that no action shall be commenced within three months after the furnishing of the proofs of loss.</p> <p>Where evidence of defendant’s waiver of said condition was admitted without objection, but no motion to dismiss the complaint on the specific ground that no waiver was pleaded was made, a contention that the expiration of the time limit was a condition precedent to the bringing of the action cannot be urged on appeal from the judgment in favor of plaintiff.</p> <p>Evidence tending to show that other apartments in the house where plaintiff resided had been entered on the night of said burglary was competent upon the issue whether defendant’s loss was due to burglary.</p> <p>Where plaintiff falsely represented that he was a mining promoter when he in fact was a mind reader or clairvoyant and for money habitually used his apartment for an exhibition of his alleged powers, the exclusion of testimony to establish such facts is error where plaintiff testified that he was in business as a mind reader and had been convicted of telling fortunes in an apartment house.</p>

<p>Lease — provision of lease as to security — landlord and tenant — summary proceedings — when tenant entitled to recover amount of deposit less rent due.</p> <p>A provision of a lease that “ The security and deposit paid herein shall survive any dispossess proceedings as against the tenant by the landlord herein ” shows an intention that the deposit should be held by the landlord after dispossession as security for damages which he might have suffered by reason of the breach of the lease.</p> <p>Where a lease provided that if the premises or any part thereof should. become vacant during the term the landlord might relet for the account of the tenant and hold him for any deficiency, and there is no other covenant which could survive the tenant’s dispossession by summary proceedings under which damages to the landlord might accrue, there was no purpose for which a deposit made by the tenant to secure his performance of the lease could “ survive any dispossess proceedings ” as provided except as a penalty, which the law does not allow.</p> <p>In such ease the tenant is entitled to recover the amount of the deposit less the amount of rent due at the time he was dispossessed.</p>

<p>Appeal from a judgment of the Municipal Court of the city of New York, borough of Manhattan, ninth district, entered in favor of the plaintiff for $405 and costs after trial by the court.</p>

<p>Appeal from a judgment of the Municipal Court of the city of New York, borough of Manhattan, second district, entered in favor of the defendant after trial by the court, and bringing up for review an order allowing the original defendant, Benjamin Matusow,'to deposit the money in controversy into court and to interplead Samuel Levine as defendant in his stead.</p>

<p>Negligence — evidence of — dangerous condition in prosecution of work —. actions. ' ' ' '</p> <p>While plaintiff, after washing an automobile in defendant’s "garage where he was employed, was skidding the car around on the- wash-stand so as to get it back in its place'he slipped on some kerosene oil, which by order of defendant’s superintendent was poured under the rear wheels of the car to make it skid, and was injured, and his testimony that in other garages where he had worked there was either a turn-table or skids used to turn the cars around was corroborated. Held, that the dismissal of the complaint on the ground that plaintiff had failed to prove a cause of action was reversible error.</p> <p>It was the duty of defendant to use reasonable care in providing its workmen with safe and suitable appliances in their work, and it being inferable that if skids or a turn-table had been provided the superintendent would not have ordered kerosene oil to be thrown under the wheels of the automobile, and if the oil used because of the absence of appliances created a dangerous condition in the prosecution of the work, defendant is chargeable with negligence.</p>

<p>Banks (savings) — bound to exercise ordinary care in paying depositors’ funds — when not liable to depositor.</p> <p>A savings bank is only bound to exercise ordinary care in paying out its depositors’ funds, and if in the exercise of such care said funds are paid to the wrong person the bank is not liable to the depositor.</p>

<p>Appeal from a judgment in favor of plaintiff and against the defendant George L. Walker Company for $633.28 damages and costs, entered in the City Court of the city of New York, borough of Manhattan.</p>

<p>Statute of Limitations—part payment of debt due from an incompetent sufficient to prevent running of — ratification of payment by debtor.</p> <p>A part payment on a debt due from an incompetent sufficient to prevent the running of the Statute of Limitations may be made by the committee of her person and property; any doubt as to the authority of the committee to make such payment will be resolved in favor of the creditor by the subsequent approval and ratification of such payment by the debtor after she becomes competent to manage her own affairs.</p>

<p>Depositions — when justice of Municipal Court of city of New York must grant order for — Code Civ. Pro., § 768.</p> <p>A judge of the Municipal Court of the city of New York must grant an order for a commission to take testimony provided the moving papers, which under section 768 of the Code of Civil Procedure include the pleadings, make out a prima facie case and that the evidence sought is material.</p> <p>Where in an action brought in the Municipal Court of the city of New York to recover on certain cheeks drawn on and duly accepted by defendant before issuance to one E, and sold and delivered to plaintiff for value, the answer alleges that prior to the purchase plaintiff knew that the signature of E, whose testimony defendant desired to take hy commission, was obtained by fraud and that the cheeks after being countersigned by E were delivered for a special purpose and diverted therefrom, and that plaintiff through its president had knowledge of said fraud and diversion, the denial of a motion for the commission to take the testimony of E, who was out of the state, was error as was the failure of the justice to state the grounds for the denial of the motion.</p>

<p>Appeal from a judgment of the City Court of the city of New York in favor of the defendant and against the plaintiffs, dismissing the complaint and from each and every part of said, judgment.</p>

<p>Contracts — of conditional sale — carriers—vendor and purchaser — sales.</p> <p>A contract of conditional sale of a soda water fountain provided for its delivery “ f. o. b. Philadelphia,” the place of business of the Vendor, and that it should at all times be entirely at the vendee’s risk from and after delivery to him or to a carrier for transportation. At the vendee’s request the vendor consigned the fountain to himself at the vendee’s place of business in New York city and upon delivery to the vendee parts of the fountain were found to be broken. Held, that though the fountain was consigned to the vendor’s own order the only possible inference was that the fountain was injured in transit,' and that no recovery could be had -against the vendor.</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 plaintiff and against the defendant.</p>

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

<p>Associations — benefits and who entitled—evidence.</p> <p>Where the laws of a benefit association do not limit a member’s right to name the beneficiaries of his death benefit, the one he designates as beneficiary, though not a member of his family or dependent upon him, is entitled to such benefit if at the time of . his death the member was in good standing with the association and all the requirements as to proof of death had been complied with.</p>

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

<p>Automobiles — action to recover for damages from collision — negligence — bailor and bailee.</p> <p>Where in an action to recover damages to plaintiff’s automobile, the result of a collision with defendant’s automobile, it appears that the person who was driving defendant’s car at the time, of the accident was the keeper of a garage for the repair of automobiles to whom defendant had .delivered his car, at some distance from said garage, to be repaired, the relation between the two is that of bailor and bailee, and for the negligence of the bailee in driving defendant’s car into that of plaintiff defendant is not liable.</p>

<p>Appeal from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, sixth district, in favor of the defendant, dismissing the plaintiff’s complaint upon the merits.</p>

<p>Estoppel — of record — injunctions — judgments — landlord and tenant — parties.</p> <p>A lease with covenant of quiet enjoyment provided that the premises were to be used for business purposes. Shortly after the tenants went into possession and erected structures adaptable to the conduct of an open-air moving-picture pavilion, neighboring owners upon allegations that the leased premises were burdened with a covenant against use for a moving picture business brought an action to restrain the continuance of such business and fór a removal of the structures. By an order duly made the landlord, who with her tenants was made defendant in said action, was substituted as defendant in person and within a week all of the defendants withdrew their answers and consented to the entry of judgment for the injunction as prayed for in the complaint and thereupon judgment was entered accordingly. In an action to recover rent subsequently accruing it conclusively appeared that defendants knew of the alleged restrictive covenant and that they intended to test its efficacy by accepting the lease and embarking in the business that they did. Held, that no estoppel of record could be predicated on the judgment in the injunction suit as it neither prevented the maintenance of the present action nor was it conclusive of anything involved therein.</p> <p>That while said judgment determined that the parties to the present action were violating a restrictive covenant and must cease doing so it adjudicated nothing in favor of any defendant as against a co-defendant.</p> <p>That if defendants herein expected to be relieved by the judgment in the injunction suit of their liability to the plaintiff herein for rent under the lease and had any ground upon which to base such a contention they were bound to interpose their claim by answer and serve a copy thereof upon their co-defendant.</p> <p>That the consent of the plaintiff herein to judgment in the injunction suit, to which she was not a necessary party, conditioned on judgment being entered against her co-defendant did not and could not assume that they would refuse to litigate but instead would also consent to the entry, of judgment, and defendants were not aided by such consent on the theory of estoppel in pais.</p>

Appeal by defendants from a judgment entered upon a verdict directed for the plaintiff by the Municipal Court of the city of New York, borough of Brooklyn, second district, in an action brought to recover upon two promissory notes.

Upon the trial it was proven that after the abandonment the landlord (plaintiffs) made material alterations. The defendant claimed, (1) constructive eviction and (2) a surrender and acceptance arising by operation of law by reason of the making of such alterations.

Appeal by defendant from judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, entered on verdict in favor of plaintiff, and from order denying motion for a new trial.

<p>Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, in fávor of defendant, and from an order denying motion to set aside and amend judgment.</p>

<p>Appeal by plaintiff from order of the City Court of the city of New York granting defendants’ motion for judgment on the pleadings, also from judgment dismissing the complaint.</p>

<p>Appeal by plaintiff from, an order of the City Court of the city of New York denying motion to vacate order for plaintiff’s examination before trial.</p>

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

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

<p>Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fifth district, dismissing the complaint at the close of the whole case, after a trial by a judge and a jury.</p>

<p>Contracts — parties to — incomplete agreement — actions.</p> <p>In an action against the parties to a joint contract all the obligors must be made defendants.</p> <p>Where plaintiffs by a written instrument agreed to act as managers of defendants in their capacity as teachers of dancing and public performers in that art, a provision that plaintiffs’ compensation was to be decided upon by mutual agreement renders the so-called agreement incomplete, and in an action thereon defendants’ motion for judgment on the pleadings for a dismissal of the complaint should have been granted.</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 the defendants from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of New York, borough of Manhattan, fourth district.

<p>Benefit societies — by-laws of — amendment — evidence.</p> <p>A corporation authorized to give only voluntary assistance to its members has implied power to suspend a by-law providing for sick benefits payable out of its funds whenever they are depleted.</p> <p>In an action to recover for sick benefits claimed to be due under the by-laws of defendant corporation testimony that it had no money, that could be applied to the payment of the sick benefits sued for, though elicited by a question which called for a conclusion, cannot be disregarded on appeal from a judgment in favor of plaintiff.</p>

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

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 the defendants and against the plaintiff.

<p>These are two actions between the same parties. Plaintiff appeals in one action from a judgment of the Municipal Court, borough of Manhattan, second district, dismissing the complaint, and defendant appeals in the other action from a judgment entered on a verdiet for $472.50 and from an order denying its ¿notion to reduce the verdict from $472.50 to $377.50.</p>

Appeal by the defendant Spear & Company, from a judgment of the Municipal Court of the city of New York, borough of Manhattan, seventh district, directing the payment of the sum of $240 deposited with the clerk of the Municipal Court to the plaintiffs, and against the defendant Spear & Company, after a trial by the court and a jury and from an order granting interpleader.

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

Appeal by plaintiff from an order of the City Court of the city of New York directing him to serve an amended complaint separately stating and numbering the causes of action or to elect on which cause of action he will proceed.

<p>Judgments — of Municipal Court of city of New York — docketing of — when judgment deemed complete.</p> <p>Before a judgment of the Municipal Court of the city of New York can be deemed complete it must be indexed in the current docket books as prescribed by the court rules, and an appeal duly taken from a judgment within twenty days after the same has been indexed is in time though several months have elapsed since it was docketed.</p>

<p>Motion to amend petitions for leave to issue receiver’s certificates.</p>

<p>Motion for a new trial in an action for the partition, etc., of real property.</p>

<p>Action of ejectment to recover possession of real estate, defendant demanding specific performance of contract to sell the same, etc.</p>

<p>Injunction — lease of oil wells — General Construction Law, § 39 — Real Property Law, § 259 — costs — neither party succeeding upon issues raised.</p> <p>While the right to operate for oil under a lease, contract or other right or license to operate for oil is declared to be personal property by virtue of section 39 of the General Construction Law, it has never been held that the perpetual exclusive right to operate lands other than those occupied could be created except as provided by section 259 of the Real Property Law.</p> <p>Where in an action for an injunction restraining defendants from drilling oil wells etc. there is no proof of the creation of the right in plaintiffs to operate an entire tract of land in accordance with the requirements of said section 259 of the Real Property Law, the finding must be that the plaintiffs are not the owners of the oil wells drilled by defendants and are not entitled to possess the entire tract of land and to restrain defendants from operating thereon.</p> <p>While the Statute of Limitations has run against a claim for a specific performance of an alleged contract to lease founded upon a written instrument and all the facts and circumstances established, yet it can equitably and reasonably be held that plaintiff should be permitted to continue the operation of four wells drilled by them, their ownership of the same and the right to operate having been acquiesced in by the owner of the fee for more than twenty-five years; their acts must be deemed to have been in performance of some contract therefor and their possession thereof will not be disturbed.</p> <p>Plaintiffs having failed to establish title to the right to exclusively operate any of the tract of land in possession of defendants and failing in their claim of ownership to the oil wells drilled by defendants would be chargeable in costs were it not that defendants in their answer denied plaintiffs’ right to the four wells and demanded judgment that defendants’ rights in all the lands in controversy were superior to those of plaintiffs; neither party succeeding upon the issues raised by the pleadings, no costs are awarded.</p>

<p>Action for goods sold.</p>

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

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

<p>Motion to withdraw a juror and for a mistrial on the ground of the misconduct of a juror.</p>

<p>Lease — by life tenant — use and occupation — partition — termination of lease upon death of life tenant — landlord and tenant.</p> <p>Where the life tenant of a farm which she leased by a written instrument under seal for five years dies within the term, the tenant if he continue in the use and occupation of the premises without agreement with the remaindermen is a tenant at sufferance.</p> <p>Where the lease ran from March 17, 1913, and the life tenant died August 27, 1914, and the remaindermen duly served upon the tenant a notice to quit on or before March 17, 1915, and, pending the decision of defendants' motion for the dis- . missal of the complaint in an action of partition on the ground that plaintiff was not in possession of the farm at the commencement of the action, the question whether or not the lease had been adopted by the remaindermen was answered in the affirmative by the jury, a motion by plaintiff to set aside' the verdict and for judgment will be granted on the ground that as the evidence failed to show an oral agreement of adoption of the lease there was no question for the jury and the oral agreement, even if shown, would have been insufficient.</p> <p>The payment and acceptance of rent and the subsequent acts of the tenant, assuming that he did as claimed in his testimony, did not and could not effect an adoption of the lease because it terminated absolutely upon the death of the life tenant.</p>

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

<p>Taxpayer’s action.</p>

<p>Statute of Frauds — refusal to perform parol agreement — contracts. Specific performance — action to compel— contracts — order setting aside verdict.</p> <p>A mere refusal to perform a parol agreement -void under the Statute of Frauds is in no sense a fraud either in law or in equity.</p> <p>Where in an action to compel specific performance of an alleged oral contract concerning certain real estate sold at a partition sale the jury answer the question whether defendant agreed with plaintifi to bid in the property for her in the affirmative but the proof shows that there was no such agreement, and there is -neither claim nor suggestion of fraud, irregularity or invalidity, an order will be granted setting aside the verdict and directing judgment in favor of defendant, who purchased the property for himself and received the referee’s deed, for the dismissal of the complaint.</p>

<p>Fines — when state not entitled to recover amount of — city of Buffalo —'Motor Vehicle Law.</p> <p>Statutes — special — when not deemed repealed — Motor Vehicle Law — intent of legislature.</p> <p>The state is entitled to recover from a municipality the amount of fines and penalties collected by it for violations of the provisions of the Motor Vehicle Law (Laws of 1909, chap. 30, as amended in 1910).</p> <p>The state, however, is not entitled to recover the amount of fines and penalties collected by the city of Buffalo for violations of the various ordinances of the city and of its board of park commissioners so far as they regulate the use of motor vehicles within the city, such ordinances being fairly within the exceptions contained in the Motor Vehicle Law and therefore remaining in full force and virtue. .</p> <p>Special statutes which are local in their application are not deemed repealed-by general legislation except upon the clearest manifestation of an intent by the legislature to effect such ¿repeal which cannot ordinarily be accomplished by implication.</p> <p>In the provision of section 291(2) of the Motor Vehicle Law, as amended in 1910, that “ all fines, penalties or forfeitures collected for violations of any of the provisions of this article or of any act in relation to the use of public highways by motor vehicles now in force or hereafter enacted,” the legislature used the word “ act ” with reference to acts of its own making and not ordinances or regulations made by local authorities, nor even statutes having only a local application.</p> <p>Under the rule of statutory construction known as the doctrine of ejusdem generis the general words “ any act ” following as they do the particular word “ article ” evidence that the legislature intended thereby to mean a statute passed by itself.</p>

<p>Motion to strike out answers.</p>

<p>Application to confirm the reports of the commissioners of "estimate and the commissioner of assessment.</p>

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

<p>Action upon a bond furnished by a general guardian.</p>

<p>Supplementary proceedings — institution of — examination of judgment debtor — when motion to punish for contempt denied.</p> <p>Where the assignee of a judgment institutes proceedings supplementary to execution thereon his affidavit to obtain an order for the examination of the judgment debtor must state who owns the judgment, whether it has been transferred, and how the affiant came to own it, to the end that it may appear that the proceedings are in fact brought by the real party . in interest.</p> <p>Where the affidavit on which an order for the examination » of a judgment debtor, though stating that affiant is the attorney for plaintiff, the judgment creditor, does not state that affiant is the attorney for the assignee of the judgment and authorized by him to institute the proceeding, a motion to punish as for contempt the judgment debtor for failure to appear for examination pursuant to the order must be denied.</p>

<p>Action to annul a marriage.</p>

<p>Motion to continue an injunction.</p>

<p>Undertakings — action on — surety companies — when motion for judgment on pleadings denied.</p> <p>Where a surety company had given an undertaking in an action conditioned “ that if -any judgment is rendered herein against the defendant, and an execution issued therein is returned wholly or partly unsatisfied, it will pay the amount of said judgment or the portion thereof remaining unsatisfied, not exceeding the sum of six thousand ($6,000.00) dollars,” an affirmative defense in an action on the undertaking that an appeal has been taken and perfected from the judgment which defendant is now called upon to pay is insufficient in law, and plaintiff’s motion for judgment on the pleadings will be granted.</p>

<p>Motion for a stay.</p>

<p>Injunctions — when granted — erection of wall restrained.</p> <p>Four buildings owned by plaintiff in one of which she resided were set back a certain distance from the street line because of a restrictive covenant entered into by the grantor from whom plaintiff and defendant and other property owners derived title. Although the neighborhood had changed from a residential to a business section the covenant had been observed by plaintiff and those owning new buildings on that side of the street. Held, that plaintiff will be granted an injunction restraining defendant from erecting a wall on its premises extending them a distance of eleven and one-half feet out.</p>

<p>Motion" for an injunction pendente lite.</p>

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

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

<p>Demurrer to a separate 'defense brought on as a contested motion.</p>

<p>Landlord and tenant — action to recover rent — lease — corporations — injunctions — Personal Property Law, § 44.</p> <p>Constitutional law — when transfer of stock of merchandise void — Personal Property Law, § 44, constitutional.</p> <p>Section 44 of the Personal Property Law (Laws of 1914, chap. 567), declaring that “the sale, transfer or assignment in bulk of any part or the whole of a stock of merchandise, or merchandise and of fixtures pertaining to "the conducting of the business of the seller, transferrer or assignor otherwise than in the ordinary course of trade and in the regular prosecution of said business, shall be void as against the creditors of the seller, transferrer or assignor” unless certain requirements prescribed by said statute are observed, is constitutional.</p> <p>A landlord who obtains a judgment for rent under an unexpired lease is a “ creditor ” of the tenant within the meaning of section 44 of the Personal Property Law, and as such is entitled to maintain an action to set aside as fraudulent and void a sale in bulk of a stock of goods of a business by the tenant.</p> <p>The prayer of the complaint in an action brought by the landlord upon a judgment recovered for a month’s rent to set aside and have adjudged void the sale of a business conducted by the tenant on other premises, including all the stock in trade and fixtures, to a corporation of which his sister-in-law was president and his wife the treasurer was that the corporation be appointed receiver of all the goods, wares, merchandise and fixtures that came into its possession by virtue of the sale, that it be held accountable for such property and all proceeds arising from the sale thereof, be enjoined from disposing of the same, be directed to sell sufficient thereof to pay plaintiff’s judgment and hold the balance to the court’s order and for such and further relief as to the court may seem just and proper; the sale to the corporation was admitted and its president and treasurer testified that all other creditors of the seller except plaintiff were paid and the treasurer admitted that she was present when the lease between her husband and the plaintiff was signed and knew that it was for a term which had not expired at the time of the sale. It further appears that the detailed provisions of section 44 (1) of the Personal Property Law were not complied with. Held, that plaintiff was a “ creditor ” within the meaning of the statute and that upon rendering judgment in its favor declaring the sale to the corporation void the court would direct that a receiver be appointed of all goods, etc., that came into the possession of the corporation by virtue of the sale, which property the court decides said corporation holds in trust for the creditors of the seller; that said corporation be adjudged to turn o\er and deliver to said receiver when appointed and account to him for all the property so received and for all proceeds arising from the sale of all or any part thereof and in the meantime said corporation be enjoined and restrained from disposing of said property in any way or paying out any of the proceeds thereof.</p>

<p>Contracts — for personal service — termination of — breach of — injunctions — pleading.</p> <p>A stranger to a contract for personal services who induces the termination or other breach thereof is liable only when he has been guilty of unlawful means.</p> <p>S., who had never posed for motion pictures, contracted with plaintiff for her services in a proposed picture play to be ' staged and produced. by plaintiff, such services to cover a period of four weeks for which S-. was to receive a certain sum, and in consideration of such employment she agreed not to sign with a motion picture play for any other eon¡pany prior to the termination of said contract, but before that time arrived, upon defendant’s false representation that said contract was not binding upon her and that plaintiff was not preparing the necessary preliminaries for the production of any play which would employ the services of S., and that plaintiff did not intend to perform its agreement with her, S. was induced to agree to perform similar services for the defendant. Such representations rendered defendant as guilty of fraud as if force or coercion were used, and it appearing that the services of S. were so unique and exceptional as to make plaintiff’s remedy at law for a breach of the contract inadequate, it will be granted an injunction restraining defendant from producing any picture play in which S. appears, and from advertising that she will appear in any play of his.</p> <p>A complaint stating a cause of action at law but praying for equitable relief is good as against a demurrer.</p>

<p>Libel — what constitutes — pleading — actions — fraud.</p> <p>Where a separate defense, though bad in itself, contains denials of material allegations of the complaint the defense is good against a demurrer so long as the denials remain.</p> <p>Where a libel consists of a charge of fraud and deceit in the manufacture and sale of a worthless or harmful medicine it is necessary that a plea of justification allege that plaintiff knew his product was worthless and harmful and that it was sold with intent to deceive.</p> <p>In such case, the essence of the wrong lies in knowledge of the material facts and the evil intent involved, in the act of selling, and whenever knowledge and intent are material and essential to a cause of action they must be allegel either expressly or impliedly.</p> <p>Where the law raises no presumption as to the existence of certain facts from certain other facts proved the situation is one of pleading or of proof, for to presume a fact it is not sufficient that it may be inferable from the primary facts; it must necessarily be implied therefrom.</p> <p>A plea of justification as a complete defense to the whole of an alleged libelous publication must be as broad as the charge attempted to be justified.</p> <p>In an action for libel it appeared that the alleged libelous article was an attack upon the advertised and actual merits of “ Wine of Cardui,” and upon plaintiff as one actually and morally responsible for the injurious effects resulting from its sale as well as for the nefarious methods by which sales were effected, but every act alleged in the complaint with respect to the manufacture, advertising and sale of “Wine of Cardui” if directly alleged at all was alleged to have been the act of the medicine company which manufactured and sold it. There was no allegation that plaintiff was in any way connected with or responsible for the making, vending or advertising, save so far as responsibility therefor might be inferred from an allegation that he was the chief owner of the company. The answer contained no express allegation that plaintiff had knowledge of the composition of said medicine or that sales thereof were made by him with intent to deceive.</p> <p>Held, that a defense denying that plaintiff’s reputation was good; denying publication of the words alleged, save as part of the entire article published, and the innuendoes attached thereto; and alleging that in view of the true nature of “ Wine of Cardui ” and the character of the advertisements promoting the sale thereof by the medicine company, the maker and vendor, the published article was in substance true and the words concerning plaintiff contained therein were justified, is demurrable for insufficiency.</p> <p>A further defense repeating the allegations of a certain paragraph of the answer and alleging further that because of matters disclosed in detail defendants believed the statements contained in the article were true and that the reflections upon plaintiff were fair comments “ on the facts hereinbefore set forth,” and also that the occasion was privileged, is subject to demurrer for insufficiency.</p> <p>It lies at the foundation of the defense of fair comment that the facts commented on are true, and mere belief in their truth is insufficient and a bare denial that the article complained of was “ true in substance and in fact ” is worthless.</p>

<p>Contracts — of subscription to corporate stock — corporations — when subscription cannot be invalidated by assignment — pledge and pledgee — Stock Corporation Law, § 53.</p> <p>A contract of subscription to corporate stock made subsequently to incorporation is invalid for failure to comply with section 53 of the Stock Corporation Law which provides that every subscriber whose subscription is payable in money shall pay to the directors ten per cent, of the amount of his subscription in cash.</p> <p>A subscription which is invalid for failure to pay in cash ten per cent, of the amount of the subscription cannot be validated by assignment where the assignee was not a party to the subscription contract and it did not contain any provision which expressly or by implication conferred any right upon the assignee.</p> <p>A provision of the subscription agreement to the effect that it might be pledged did not obligate a subscriber to pay to the pledgee thereof anything which he was not obligated to pay to the corporation with which only he contracted.</p>

<p>Motion to punish a third party herein for alleged contempt.</p>

<p>Laches — when party does not act diligently—■ calendar.</p> <p>Trial — in action for personal injuries — motion for new trial — when motion to vacate inquest (lenied.</p> <p>Where a party does not act diligently and prepare to proceed with the trial of an action when reached on a call of the calendar,, and a default is entered against him, he is guilty of laches and will not be afforded relief.</p> <p>Upon the denial of a motion to dismiss the complaint in an action for personal injuries made at the close of plaintiff’s case, defendant stated that it rested and would offer no defense, but upon its motion for the dismissal of the complaint being renewed it was granted, the court reserving decision on plaintiff’s motion for a new trial which was thereafter granted and the cause set for trial on a day certain, and at 9:45 a. m. of that day upon a call of the calendar a statement was made by a representative of defendant that counsel who formerly defended the action was ill and requested an adjournment, whereupon the court set the case down for trial at two o’clock of that day at which hour an affidavit was presented that counsel for defendant had entered into another engagement in the trial of a Supreme Court action and an adjournment was asked for on that ground. Held, that a motion to vacate an inquest ordered after the court had refused to grant the adjournment and allow defendant to come in and defend must be denied, as in the circumstances the court was justified in allowing the inquest to be taken.</p>

<p>Motion for a new trial in an action to recover commissions as a broker.</p>

<p>Service —■ of process — partnership — jurisdiction — evidence — actions.</p> <p>Where, in an action on an Indiana judgment in favor of plaintiff and against defendants as partners upon a partnership indebtedness, entered in an action brought in a court of competent jurisdiction, the only evidence is the judgment roll and admissions as to the amount due, and the record is devoid of evidence as. to the force and effect of the judgment sued on, it cannot be enforced in the state of New York even to the extent of the joint property of the firm, nor even subject to a trial of the facts upon which said judgment was founded as against the defendant who was served with process in Indiana by leaving a certified copy of the summons with the other defendant, his partner.</p>

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

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

Appeal by defendants from a final order in summary proceedings of the city judge of Fulton, awarding possession of real property to the petitioner, Gertrude E. Church, for nonpayment of rent.

<p>Costs — hill of — calendar — trial — when not entitled to tax trial fee.</p> <p>Where, on a eaE of the calendar, a case was announced ready by defendant but the plaintiff stated that he would discontinue and pay costs there was no “trial” and defendant was not entitled to tax a trial fee in his bill of costs.</p>

<p>Appeal on questions of law from a judgment of Justice’s Court of the city of Utica.</p>

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

<p>Appear by defendant from an order of the Municipal Court of the city of New York, borough of Manhattan, first district.</p>

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

<p>Default — when trial justice may properly grant — when affidavit in support of motion to open default insufficient.</p> <p>In the absence of an affidavit setting forth actual engagement of counsel or any other valid ground for adjournment, the case having been set down for trial by stipulation, the trial justice may properly grant a default and direct judgment with costs in favor of defendant.</p> <p>The affidavit of plaintiff’s attorney in support of a motion to open a default considered and held insufficient, and an order opening plaintiff’s default reversed, judgment in favor of plaintiff reversed, and judgment in favor of defendant reinstated.</p>

<p>Appeal from an order of Municipal Court of the city of New York, borough of Manhattan, fifth district, staying proceedings in an action until the payment of costs awarded in a prior action between the same parties in the Supreme Court, Kings county.</p>

<p>Negotiable instruments — who is holder in due course — bills, notes and checks — evidence — fraud.</p> <p>In an action against the maker of a note given on the purchase of the stock of a saloon the defense was the fraudulent' removal of stock before delivery of possession of the saloon, and that plaintiff was not a holder in due course, within the meaning of section 91 of the Negotiable Instruments Law. On, the trial it appeared that the note was indorsed by the payee and also by a firm of which plaintiff’s husband was a member and plaintiff testified that- she paid full value in cash to her brother for the note. Though plaintiff’s husband ostensibly managed the saloon for her brother the evidence tended to show that he was one of the real owners if not the sole owner of the place.</p> <p>Held, that plaintiff having taken the title directly from one of the payees in the circumstances disclosed it was not sufficient for her to show that she had paid her brother full value; for if in fact; as the uneontradieted evidence tended to show, her husband had fraudulently disposed of a large part of the stock - before delivery to the defendants she was called upon to show, , at least to the extent of the value of the missing stock, that she had taken the note "without notice of the alleged fraud; accordingly a judgment in favor of plaintiff granted upon the theory that the burden was on defendants to show that plaintiff had knowledge of the alleged fraudulent moving of the stock will be reversed and a new trial ordered.</p>

<p>Landlord and tenant — liability of landlord for repairs — lease — covenant to “ take good care of premises.”</p> <p>Where tenants under a lease of the entire building covenant to “take good care of the premises” and do all of the inside repairs at their own expense, the landlord is not liable for repairs to the roof.</p> <p>The fact that the landlord made repairs to the roof and, apparently, was willing to make them when the tenants had them done at his expense was not sufficient to charge the landlord with the legal duty of making the repairs.</p>

Appeal by defendant from judgments of the Municipal Court of the city of New York, borough of Manhattan, third district, in two actions, in favor of plaintiff.

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

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

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

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

Appeal by the defendant from an order of the City Court of the city of New York, denying defendant’s motion to vacate an order granting an examination of the defendant before trial.

Appeal by the judgment debtor from the order of the City Court of the city of New York, entered herein November 12, 1915, denying the motion of the judgment debtor to vacate the orders made in this proceeding October 23, 1915, and November 1,1915.

<p>Insurance (life) — action to recover on policy of — evidence — verdict.</p> <p>Where in an action to recover on a policy of life insurance suicide of the insured is pleaded as a defense, and the proof is that he was found in his bedroom at six o ’clock in the morning either dying or actually dead and that his death was caused by asphyxiation from illuminating gas, but there is no evidence as to how the gas escaped nor as to any other surrounding circumstance which might tend to show any intent on the part of the deceased to take his life, the evidence is insufficient to overcome the presumption against suicide, raises no question of fact for the jury and plaintiff was entitled to the direction of a verdict in her favor.</p> <p>Where one who loaned decedent considerable money testified, without objection, that he went to the apartment of the deceased at nine o’clock of the morning of his death and that he had received a letter from him which decedent’s widow had taken from the witness at the cemetery, the exclusion of his testimony as to the contents of the letter was erroneous as it might have shown an intent on the part of decedent to take his life and thus raise a question for the jury.</p> <p>Defendant’s offer to prove by an inspector of the gas company that he examined the gas fixtures on the afternoon of the day of decedent’s death and found them in good condition was excluded on the ground that to lay a proper foundation defendant must prove that no one having access to the apartment that day had changed the position of the fixtures. Held, that the ruling was too strict, the fair presumption being that if the fixtures were imperfect in the morning they would so remain until the inspector came later in the day.</p>

<p>Appeal by the judgment debtor from an order of the City Court of the city of New York, adjudging him in contempt,</p>

<p>Appeal by defendant from a judgment rendered in the City Court, after a trial by jury, on a verdict in favor of plaintiff by direction of the court, for $532, with costs.</p>

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

<p>Contracts — of employment — performance of — cancellation and annulment of — intention of parties — when terminated.</p> <p>Where in the course of the performance of a contract it is rescinded, any claim in respect of performance or of what has been paid or received thereon will ordinarily be referred to the agreement of rescission and no such claim may be made unless expressly or impliedly reserved upon the rescission.</p> <p>Where, notwithstanding that a superseding contract of employment with defendant as a salesman provides for the cancellation and annulment of a prior agreement between the parties and that the last contract is a substitute for the first, and the only agreement between the parties, the proof shows that the first contract was terminated because plaintiff was dissatisfied with the amount of business done by defendant thereunder and that defendant thereupon asked to be given another trial claiming that he would make good the amount due from him to plaintiff under the original, contract, it is plainly apparent that it was the intention of the parties that the rescission was to relate only to the further execution of the first contract but not to a relinquishment of defendant’s debt to plaintiff thereunder.</p>

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

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

<p>Corporations — domestic — Code Civ. Pro., § 2458.</p> <p>Supplementary proceedings — disregarding order for examination made in — contempt — when order denying motion to punish for contempt reversed.</p> <p>A domestic corporation within the meaning of section 2458 of the Code of Civil Procedure resides where its principal place of business is situated, and an allegation that it has its principal place of business in the county of New York is equivalent to an allegation that it resides in that county.</p> <p>Where a judgment debtor wilfully disregards an order foi his examination made in supplementary proceedings on the. ground that the original order was void for the reason that the court had no jurisdiction to make it, the court is hound to punish him as for contempt unless the original order was absolutely void.</p> <p>The affidavit upon which an order for the examination of a judgment debtor in supplementary proceedings was made stated that an. execution was issued to the “ sheriff of the county of New York where said judgment debtor (a domestic corporation) then had its principal place of business and at the time of the commencement of this proceeding, still has its place of business.” The order granted thereon merely recited the same language contained in the affidavit. Held, that an order denying a motion to punish the judgment debtor as for contempt for disobedience of said order should be reversed and a flue of $250 imposed.</p>

<p>Contracts — to examine, repair and maintain elevator — repudiation of contract — measure of damages.</p> <p>Where a five-year contract to examine, repair and maintain an elevator o-wned by plaintiff is repudiated two years after it was made, the amount the owner was required to pay for repairs and maintenance of the elevator in excess of the contract price during the five years is the measure of his damage.</p> <p>Where it appears that such repairs were necessitated by the negligent maintenance of the elevator by defendant during the two years in which its contract was in existence, the necessary expense and fair value thereof is the measure of damages.</p>

<p>Application by the state commissioner of excise for an order revoking and cancelling a liquor tax certificate upon the ground that the holder of the certificate, made a misrepresentation in the statement made for the same in that he alleged that there were twelve buildings occupied exclusively for dwellings, each of whose nearest entrance to the premises in which traffic in liquor was to be carried on was within 200' feet measured in a straight line from the said premises in which traffic in liquor was to be carried on, whereas there were only ten such buildings; and on the further ground that three of the seven persons who gave consents held their houses and lots under contracts for the purchase of the same and did not hold the legal title to the same and hence were not the owners of the buildings within the meaning of subdivision 8 of section 17 of the Liquor Tax Law. Laws, of 1896, chap. 112, as amended.</p> <p>The application was originally made to the Herkimer Special Term, and, an answer having been interposed by the respondent, the court appointed a referee to take the evidence. The matter now comes before the court upon the original petition, the answer and the evidence taken by the referee.</p>

<p>Appeal from a judgment of the City Court of Buffalo.</p>

<p>Action for damages for personal injuries.</p>

<p>Application for a resubmission of local option questions in the town of Bath.</p>

<p>Motion for leave to amend answer.</p>

<p>Labor Law, § 200(2)—negligence — master and servant — pleading.</p> <p>Under section 200 (2) of the Labor Law, amended by chapter 352 of the Laws of 1910, so as to read as follows: “ When personal injury is caused to an employee who is himself in the exercise of due care and diligence at the time * * * 2. By reason of the negligence of any person in the service of- the employer intrusted with any superintendence or by reason of the negligence of any person intrusted with authority to direct, control or command any employee in the performance of the duty of such employee. The employee shall have,” etc., the fellow servant defense is not available where the injuries were caused by the negligence of one intrusted with superintendence or with authority to direct, control or command an employee in his work, even though that negligence occurred in a detail of the work.</p>

<p>Demurrer to the complaint for insufficiency.</p>

<p>Tenants in common— when entitled to maintain action — municipal corporations — when plaintiff entitled to judgment — Code Civ. Pro., §§ 1638, 1639.</p> <p>Tenants in common who have been in possession o£ certain real property for one year may maintain an action under sections 1638, 1639 of the Code of Civil Procedure to compel the determination of defendant’s claim to the property under a tax deed which, following the assessment roll, neither describes the property nor states the size of the lot whereby the particular property could be located or identified; the assessment being void and all subsequent proceedings thereunder plaintiffs are entitled to judgment.</p>

■ Motions by the petitioners for a new trial, and motions by the respondent to' reject in part and confirm in part the report of a referee.

<p>Mandamus — application for — statutes relating to publishing session laws, etc.— evidence — statutes — when application for writ denied.</p> <p>The statute relating to the designation of a newspaper to publish session laws and concurrent resolutions does not require the designation of the paper having the largest circulation in the county hut leaves a very large discretion to the hoard of supervisors, and their acts in this respect are purely administrative and not reviewable.</p> <p>On November 11,1914, all but four of the twenty-six Republican supervisors of the. county of Oneida, pursuant to section 26 of the County Law, designated the Boonville Herald to publish the session laws and concurrent resolutions required by law to be published in a Republican newspaper in said county for the year 1916 and a duly certified copy of said designation was filed by the clerk of the board of supervisors in the office of the secretary of state September 13, 1915, and such designation has not been revoked. On an application by relator for a writ of mandamus directing that the secretary of state certify to it, to be published in the Utica Herald-Dispatch published by relator, the session laws and concurrent resolutions of the legislature required by law to be published in said county in a Republican newspaper for the year 1916, it appeared that relator’s newspaper had been duly designated in February, 1914, to publish the session laws and concurrent resolutions for the year 1915 and relator claimed that the designation of the Boonville Herald published by defendant to publish such session laws and concurrent resolutions for the year 1916 was void and, therefore, that relator holds over and is for that reason entitled to publish the same for the year 1916. Held, that conceding without deciding that such designation was void the fact that twenty out of thirty of the Republican members of the new board of supervisors who took office January 1, 1916, in a certificate dated February 1, 1916, designated the Boonville Herald to publish the session laws and concurrent resolutions for 1916, which certificate was sent to the secretary of state February 3, 1916, several days before any session laws or concurrent resolutions were passed by the legislature of that year and had been received and filed in the office of. the secretary of state, such designation was effective to dispose of the claim of relator that it lawfully held over and was entitled to publish the laws for 1916, and precluded the granting of the writ asked for provided the Boonville Herald possessed the other qualities for designation required by the statute.</p> <p>Evidence considered and held that in such designation regard was had both to the political principles and to the circulation of each of said papers as required by section 20 of the County Law.</p> <p>In answer to relator’s .contention ■ that because • the county treasurer is required to publish delinquent sales for unpaid taxes twice each week in the same newspapers which are designated to publish the session laws and concurrent resolutions the designation of the Boonville Herald, a weekly newspaper, . was improper, the" defendant’s affidavits show that it was his intention to publish a semi-weekly edition of said paper during the period when such notices are required to be published and to send the same to all its subscribers. Held, that the requirements of the statute in that respect will be fully satisfiecl.</p> <p>The secretary of state having on file in his office a notification by the clerk of the board of supervisors of the designation of the Boonville Herald as the Republican newspaper in Oneida ■ county for the publication of the session laws and-concurrent resolutions for the year 1916, regular on its face, which designation is legally valid, the secretary of state is bound to forward- copies of the laws and resolutions of 1916 in due course to said paper for publication, and the application for the writ of mandamus will be denied.</p>

<p>Education Law — article 43-B added by chapter 449 of Laws of ign — section 1109b — transfer of fund from local pension association to state teachers’ retirement fund board — mandamus.</p> <p>Where a statute provides that the custody of a public fund shall be transferred from one public officer to another and no substantial dispute on any question of fact is involved, the transfer may be compelled by a peremptory writ of mandamus.</p> <p>Upon consideration of the petition of more than two-thirds of the public school teachers of the city of Yonkers that they be admitted to the state teachers’ retirement fund for public school teachers under article 43-B of the Education Law, added by chapter 449 of Laws of 1911, section 1109-b of which provides “that whenever the state teachers’ retirement fund board is satisfied that more than two-thirds of all the teachers employed in the public schools of any * * * city * * * are willing to become subject to this article, as shown by a petition duly signed and verified by such teachers, such board shall issue its order directing that on and after the date thereof this article shall apply to such * * * city,” the state teachers’ retire-</p> <p>ment fund board made an order that said article 43-B of the Education Law should apply to the city of Yonkers and made a demand upon the custodian of the fund held by the trustees of the Yonkers Public School Teachers’ Retirement Fund Association for the payment over of the moneys, which demand was refused. On granting a peremptory writ of mandamus for a transfer of the fund, held, that said fund was a public one made up as provided by law from contributions, one per cent of teachers’ salaries, and five per cent of all excise moneys, together with forfeitures and deductions, and that the members of the local association had no vested right therein.</p>

<p>Assignment — of mechanic’s liens — when invalid — contracts — filing of, with state comptroller and state architect.</p> <p>In an action to foreclose certain mechanics’ liens against money due under a contract for the improvement of certain rooms in the assembly chamber in the State Capitol it appeared that the contractor had assigned to defendant bank, as security for loans for the prosecution of the work to be done under said contract, its right to compensation thereunder and that said assignment consented to by the governor and the speaker of the house was filed with the state .comptroller as provided by section 16 of the Lien Law prior to the filing of the notices of lien by plaintiff, a subcontractor, or any other notices of lien, all of which had been filed in both the state comptroller’s office and the state architect’s office. It further appeared that the assignment was executed in duplicate and taken by the president of the contracting company to the office of the state architect and examined by .his assistant secretary who told said president that one of the duplicates should be filed with the state comptroller, and instead of keeping the other duplicate, after having it in his possession for several hours, the assistant secretary handed it back to said president who took it away with him. Held, that the advantage and security provided by the contractor in good faith and relied upon by the bank under which it had made loans should not be destroyed by holding that the assignment to it was invalid because it was not kept and retained in the office of the state architect.</p>

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

<p>Motion to set aside service of summons.</p>

<p>Attorneys — forging assignment of bond and mortgage — corporations — false representations — mortgages.</p> <p>Where an attorney obtains possession of a client’s bond and mortgage by falsely representing that a tax was due thereon which he would pay, he is not clothed with any apparent authority to sell said bond and mortgage; the situation is the same as if he had stolen the papers and then sold them.</p> <p>Where the attorney forged an assignment of the bond and mortgage to one who in turn assigned them to a eorp oration of which the attorney was president, and the corporation for a full and valuable consideration assigned the bond and mortgage to a bona fide purchaser without notice of defects in the securities, the rights of the mortgagee are superior to those of the last assignee.</p> <p>Where the mortgagee with knowledge of all the facts silently acquiesced in the payment of principal and interest by the mortgagor to the last assignee, the corporation having in the meantime ceased to exist, she is estopped as against the mortgagor and the last assignee from asserting her mortgage, but said assignee is entitled to be protected only to the amount he had paid for the mortgage.</p>

<p>Specific performance — action for — contract to purchase personal property — trial — damages.</p> <p>The rescission of a contract must be made upon discovery of any justifying fact, or at least within a reasonable time thereafter; unnecessary delay or the acceptance of benefits under the contract will be deemed an affirmation of it.</p> <p>Where plaintiff neither rescinded nor offered to rescind his contract to sell certain corporate stock to defendant until nearly five years after defendant’s breach of the contract, by which plaintiff was deprived of a part of the agreed compensation, it is too late to rescind the contract, plaintiff having accepted benefits thereunder with knowledge of defendant’s breach thereof.</p> <p>Specific performance will not be granted to enforce a contract to purchase personal property simply because the damages are uncertain or contingent.</p> <p>Even if such a contract were one enforeible by a decree of specific performance a delay of four or five years before bringing the action will compel a denial of the relief sought.</p> <p>Where at the commencement of the action plaintiff was apparently entitled to equitable relief which on the trial is found to be impracticable, or inequitable, or facts have, since arisen making it impossible, equity will retain the cause and award a personal judgment for a sum of money only, but where, as here, plaintiff was not at the time of his complaint justified in believing in his alleged equity, the case will be sent to a jury term for determination.</p>

<p>Pleading—allegations contained in complaint — demurrer — calendar. A complaint alleged that plaintiff being indebted to defendant in a certain sum transferred to him by bill of sale a boat under a verbal agreement to hold as security or to apply the income from the use thereof and the proceeds of a sale thereof to the indebtedness of plaintiff and to turn over the balance, if any, to him. The prayer for relief asked for a statement of the account and the payment to plaintiff of the balance found due after defendant had deducted from the sale of the boat the amount of plaintiff's indebtedness to him.. Held, that the complaint stated a good cause of action at law, but as plaintiff had made a mistake in asking for equitable relief a demurrer to the complaint on the ground that a cause of action for equitable relief was not stated should be sustained, unless plaintiff consented to place the action upon the jury calendar.</p>

<p>Police — city of New York—■ what amounts to reduction in rank — unjust dismissal from police force.</p> <p>Where upon .a rehearing a finding was made that relator, a patrolman, was unjustly dismissed from the police force of the city of New York, and after being permitted to resume his duties as patrolman he took the examination for sergeant and was duly appointed to that position, he is a sergeant de jure and entitled to pay as a sergeant de facto, and the action of the police commissioner in compelling him to perform the duties of a patrolman amounts to a reduction in rank without right or warrant in law.</p>

<p>Application to vacate and set aside a judgment.</p>

<p>Infants — obvious propriety of giving mother custody of child — when surrender of custody is valid.</p> <p>Where no question of the moral fitness of either the father or the mother is involved, other things being equal, the propriety of giving the mother the custody of a child only four and one-half years old is obvious.</p> <p>A separation agreement made during the pendency of a wife’s action for a separation, wherein the husband surrenders the custody of his son who is only four and one-half years old, is valid.</p>

<p>Action to set aside certain notices of abandonment of the traffic in liquors under the Liquor Tax Law.</p>

<p>Jurisdiction—of Magistrate’s Court — city of New York — violation of city ordinance — appeal.</p> <p>In eases charging a violation of section 12, chapter 17, of the city ordinances, which provides: “No person shall expose any article for sale * * ’“ i;l any park or parkway except under . a permit to be issued by the commissioner,” a Magistrate’s Court of the city of New York has summary jurisdiction.</p> <p>Where on the trial of defendant on a charge of violating said ordinance by selling newspapers on the west side of Broadway adjoining Greeley Square Park without a permit it was decided that his act was not a violation of said ordinance, the decision is res adjudieata on the trial of a charge subsequently made of a violation of the same ordinance in the same place and under the same circumstances.</p> <p>Where defendant on the last charge of violating said ordinance was convicted and fined, the judgment must be reversed on the ground that the magistrate was in error both in failing to respect the decision of the magistrate made on the previous trial, and in his disposition of the instant case.</p>