Volume 96 — New York Miscellaneous Reports

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

<p>Action for divorce.</p>

<p>Certiorari proceedings to review assessment for taxes.</p>

<p>Constitutional law — violation of article III, § 16, of State Constitution — statutes — grant of land under water in — dismissal of complaint.</p> <p>The statute (Laws of 1872, chap. 331) which authorized and empowered the town survey commissioners of Kings county to determine and designate on the maps to be tiled by them the bulkhead and pierhead lines which were to form the termination of the streets and avenues adopted and laid out by them along the water front of the district under their jurisdiction on Gravesend and Jamaica Bays, which statute was supplementary to chapter 670 of the Laws of 1869, which mentions but one subject in its title, the appointment of commissioners to lay out a plan for roads and streets in certain towns within said county is a local act and violates the provisions of the Constitution (Art. Ill, § 16) that “No private or local bill which may be passed by the Legislature, shall embrace more than one subject, and that shall be expressed in the title,” and even conceding that but one subject is embraced within said statute it violates said provision of the Constitution because the subject is not expressed in the title.</p> <p>Under the additional powers and duties mentioned in said statute of 1872, the fixing of bulkhead and pierhead lines between streets and highways has no connection with nor is in any way incidental to the laying out of the same.</p> <p>At the time of a grant of land under water in Jamaica Bay to defendant’s predecessors in title, made in 1896, section 75 of the Public Lands Law provided that the commissioners of the land office should not make such a grant “beyond any permanent exterior water line established by law.” In an action brought by the state, plaintiff, on a contention that a permanent exterior water line had been established by law prior to the making of the grant in question and that the property described therein extended beyond said permanent exterior water line, sought to vacate and annul the letters patent in so far as they purported to convey lands under water beyond a bulkhead line laid out by the town survey commissioners of Kings county under the statute of 1872, which said bulkhead line plaintiff claimed was a "permanent exterior water line established by law.” Held, that the statute being unconstitutional, the commissioners under it laid out no exterior water line where the premises in question are situated, and that defendant was entitled to a dismissal of the complaint, with costs.</p>

<p>Injunctions — when motion for, denied — Public officials cannot be enjoined from performing official duties — Greater New York Charter, § 383.</p> <p>Public officials cannot be enjoined from performing their official duties unless the acts threatened by them would be unauthorized or in violation of law.</p> <p>Where a motion for an injunction in an action to enjoin the president of the borough of Brooklyn from issuing a permit for the removal of two frame houses located on an avenue in said borough to any other place is predicated solely on a claim that if the permit were granted the trees and shrubs of the parking in the center of the avenue for the distance the houses would be moved would be destroyed to the injury of plaintiff and other abutting owners, the motion must be denied where concededly the borough president under section 383 of the Greater New York Charter has power to issue the permit.</p>

<p>Application to confirm report of a referee in a proceeding to obtain award.</p>

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

<p>Costs — condemnation proceedings — when motion for retaxation granted.</p> <p>• Where the dismissal at Special Term of the petition of the city of New York for the appointment of commissioners, in a condemnation proceeding to acquire title for the opening of certain streets was affirmed by the Appellate Division and the Court of Appeals, the latter decision affirming, the order of the Appellate Division “ with costs,” but one bill of costs can be allowed.</p> <p>Where the county clerk, over the protest of the corporation counsel, taxed a full bill of costs for each of the six respondents whose interests in the only issue raised or litigated in the proceeding, i. e., the right of the city to condemnation, were identical, a motion for a retaxation of costs will be granted and the clerk directed to retax them by allowing but one bill of costs.</p>

<p>Amendment —■ motion to compel — action — Code Civ. Pro. § 546.</p> <p>Pleading — in action to determine claim to real property — complaint — answer—■ title — Code Civ. Pro. § 1638 — when grant must be recorded.</p> <p>Statutes — Code Civ. Pro. § 530.</p> <p>Section 546 of the Code of Civil Procedure which provides that the court may require a pleading to be made definite and certain by amendment applies, to answers.</p> <p>A motion to compel an amendment of a pleading by making it definite and certain is the proper procedure where the information sought is a material fact of the cause of action or defense.</p> <p>Where in an action brought against the city of New York under section 1638 of the Code of Civil Procedure to compel the determination of a claim to real property the complaint specifically alleges the manner in which plaintiff acquired her title as required by section 1639 of said Code, and the answer in addition to a denial of the material allegations of the complaint pleads as a defense title in defendant to the property involved and demands judgment barring plaintiff from possession and a judgment that defendant is entitled to possession, a motion under section 546 of the Code of Civil Procedure to compel defendant to make definite and certain that part of its answer which alleges: “ 8. That the sources from which The</p> <p>City of New York derives its title to such premises are the charters or patents granted to the freeholders and inhabitants of the Town of Gravesend, by the Colonial Governors of the Provine (sic) of New York, pursuant to the authority in them vested by the Crown and Parliament of Great Britain, and also by virtue of the several constitutions and laws of the State of New York,” will be granted on the ground that it should have been alleged what colonial governor granted the charter, whether it was recorded and where, and also what law of the state vested defendant with title.</p> <p>A grant from the sovereign to be valid must be recorded.</p> <p>A private statute should be pleaded as provided by section 530 of the Code of Civil Procedure; a general statute need only be named.</p>

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

<p>Stay — of proceedings — when granted — depositions — appeal.</p> <p>In a wife’s action for a separation and support plaintiff is entitled to an order for the examination of defendant before trial as to his means.</p> <p>Such an order having been granted, defendant upon taking an appeal from an order denying his motion to vacate it will be granted a stay of proceedings thereunder, the Appellate Division never having passed upon the question.</p>

<p>Injunctions — Transportation Corporations Law — maintaining wires across public highway by telephone company — what is reasonable use of highway.</p> <p>While a telejohone company incorporated under section 102 of the Transportation Corporations Law has the right under a state franchise to maintain its wires across a public highway, it has not the exclusive right thereto and cannot obstruct the reasonable use of it for moving a building twenty-nine feet high by one who, as required by section 53-a of the Highway Law, has obtained a permit to move- the building along said highway.</p> <p>The removal of the building is a reasonable use of the highway and where defendants having complied with the law and being authorized to so move the building threatened to cut the telephone company’s wires which are nineteen feet aboye the ground unless it raises or removes them, a motion by plaintiff for an injunction restraining defendants from interfering with said wires will be denied.</p>

<p>Penal Law, § 2145 — exhibitions and shows on Sunday — injunctions.</p> <p>A celebration on Sunday, consisting of marathon foot races, bicycle and motor-cycle races as well as general athletics, even though the proceeds derived therefrom are to be given for charitable purposes, is “ public sports, exercises or shows ” within the meaning of section 2145 of the Penal Law, and is prohibited thereby, and a motion to restrain the police and sheriff and a “ Sunday Observation Association ” from in any way interfering with said celebration will be denied.</p>

<p>Jurisdiction—objection to — when special appearance proper — appearances.</p> <p>Motions and orders — notice of motion — service — when motion denied —■ Code Civ. Pro. § 480 — appearances. ■</p> <p>A special appearance is proper only when a party seeks to deny the jurisdiction of the court over his person.</p> <p>An objection to the jurisdiction of the court over the person of defendant to be availing must not be raised in connection with a denial of jurisdiction over the subject-matter of the action.</p> <p>An appearance to deny the jurisdiction of the court oyer the subject-matter of the action is a general appearance.</p> <p>Where a defendant appears specially he is limited to attacking the jurisdiction of the court over his person on some ground affecting the process, or the service thereof, and he will not be permitted to avail himself of a remedy provided in cases where the jurisdiction of the court over his person is conceded and where a binding judgment may be entered against him in the action.</p> <p>Where a defendant denies the jurisdiction of the court over his person he is not hurt by a judgment entered against him.</p> <p>The defendant in an action brought in the Supreme Court, within ten days after the service of the summons, appeared specially "for the sole purpose only of demanding and obtaining a copy of the complaint herein in order that it might be advised of the nature of the alleged cause of action sued upon herein and might thereafter take such objections to the jurisdiction of this court as it might he advised,” and such notice of appearance contained a demand for the service of a copy of the complaint upon the attorney so appearing specially. A notice of motion for the dismissal of the complaint for failure to serve it was signed by defendant’s attorneys with the same limitation added after their names. Held, that defendant failing to show that if a copy of the complaint had been served it would have been of assistance on a motion to be relieved of the service of the summons, or that it would have otherwise been prejudiced, the said motion will be denied.</p> <p>While section 480 of the Code of Civil Procedure gives a defendant the right to make a motion like the present one, such remedy was intended and should be given only in cases where the defendant has entered a general appearance.</p>

<p>The nature of the motion and the facts, so far as material, are stated in the opinion.</p>

<p>Title — when motion -to compel acceptance of title denied — wills — Real Property Law, § 67.</p> <p>Where a purchaser at a judicial sale asserts that there are outstanding rights and interests not cut off or concluded by the adjudication under which the sale was made, a motion to compel him to accept the title and complete the purchase will be denied.</p> <p>Where certain real estate was devised to testator’s daughter for life and on her death to her surviving issue and the will directs and empowers the executors upon the death of testator’s daughter without issue to sell the property and divide the proceeds among certain designated religious and charitable corporations, no power to receive the rents and profits being conferred upon the executors, the legal title to the remainder in fee is not vested in them, and testator’s daughter having no issue there was no person in being “ having an estate vested or contingent, in reversion or remainder” in the property on whom the notice of an application for a sale thereof under section 67 of the Eeal Property Law, as amended by chapter 55 of the Laws of 1913, could be served, and a motion to compel a purchaser of the property at a sale made under the statute to complete his purchase must be denied, and his deposit returned to him.</p>

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

<p>Action under sections 1638 et seq. of Code of Civil Procedure to determine that defendants have no interest in property of plaintiff.</p>

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

<p>Children — legitimacy of — evidence — marriage — where finding must be in favor of legitimacy of child.</p> <p>Where the legitimacy of a child born of a de facto marriage is assailed upon the allegation that one of the child’s conceded parents was a party to an earlier marriage, the presumption is in favor of legitimacy.</p> <p>The presumption in favor of legitimacy is one of the strongest known to the law and will prevail as- the all-sufficient basis for an adjudication, unless those who attack the legitimacy make clear and irrefragable proof of every element of fact necessary to defeat or escape the presumption.</p> <p>Illegitimacy cannot be found unless the parties holding the burden of establishing it complete a chain of evidence which will not only demonstrate the fact and validity of an earlier marriage and its subsistence at the time of a later marriage, but will aggressively exclude every indication or suggestion which might conceivably rescue the second marriage from invalidity.</p> <p>The presumption of legitimacy is called into action so soon as it is determined that the second marriage was such that it would be valid if no impediment thereto existed.</p> <p>Upon an application by the mother of an infant, as his general guardian, to require the administratrix of the estate of K., his father, to render a final account, it was conceded that the petitioner was married to B. in 1902, that such marriage was never legally dissolved, that the parties thereto had never been divorced and that B. still lives. At the time of said marriage petitioner was fifteen years old and since she was deserted by her husband six days after the marriage there have been no relations between them. In 1903 or 1904 petitioner and the intestate declared themselves married and from that time until his death in 1911 maintained the appearance of matrimony. The evidence tended to show that at the time they began to live together apparently as man and wife and so long as the intestate lived they entertained a belief that the former husband was dead, and there was no evidence that would justify a finding that at any time after the lapse of five years from the first marriage either of them had any knowledge, actual or constructive, that the former husband was living, or that either of them abated such endeavors to find out the facts with respect to his living as reasonable persons in their situation should employ. The infant was born in 1907, and the intestate by speech and action avowed his paternity of the child in manner such as is usual in a matrimonial relation. The infant was at once named by the full name of his father and was known by that name during the rest of his father’s life. He was christened by that name “ somewhere round 1908 ” in the presence of his father and mother, his mother’s parents and quite a party of good friends and neighbors. On that occasion the child’s father was introduced to the officiating clergyman by the child’s mother in the words “ This is my husband,” and the ceremony lacked none of the features which ordinarily attend the christening of a child born in wedlock. Held, that though from the time of the original relation between petitioner and B., down to January 1, 1908, a nonceremonial marriage was without lawful sanction, being prohibited by chapter 339 of the Laws of 1901, yet their conduct up to the time when the statutory bar was removed by chapter 742 of the Laws of 1907, in effect January 1, 1908, which made common-law marriages valid in this state, and as since January 1, 1908,-the conduct of petitioner and B. toward each other, their behavior in the eyes of their friends and relatives and especially their acts and speech touching the child were during the rest of the life of the intestate such as to amply betoken matrimony and nothing else, there was after said date a de facto marriage of the parents of said infant and that he will be held to be the legitimate son of intestate and entitled to a decree that the administratrix render and settle her account with him.</p> <p>That even though the marriage between petitioner and B. cannot be supported inter partes, the presumption • is that its progeny is legitimate and, there being nothing to countervail such presumption, the finding must be in favor of the legitimacy of the child.</p>

<p>Appeal from judgment of Justice’s 'Court. -Motion to relieve the appellant from default in perfecting his appeal.</p>

<p>Appeal — when judgment dismissing complaint affirmed — action for rent—■ landlord and tenant.</p> <p>Where, in an action for rent, the undisputed evidence shows that defendant, a local postmaster, acting by legal authority as the representative and agent of the United States government, rented premises then occupied as a post-office and during the term of the lease the post-office was moved from said premises by direction of the government, a judgment dismissing the complaint, with costs, in favor of defendant will be affirmed on the ground that defendant was a public agent acting in the line of his duty.</p>

<p>Partnership — what constitutes—lease of real property — who are creditors — negligence — mortgages — landlord and tenant.</p> <p>Negligence — evidence — action to recover for injuries — verdict — when motion to set aside verdict denied.</p> <p>It is well settled that in order to constitute a partnership inter sese the party sought to be charged must have a proprietary interest in the business in question.</p> <p>To make one a partner he must be entitled to share in the profits and be liable for the losses the same as the other member of the firm; if he has no such proprietary interest, or, while he is entitled to share in the profits, such sharing is by way of compensation only for services, no partnership relation is created.</p> <p>Where a lease of real property reserves to the landlord a certain portion of the net profits as compensation for the use of the premises no partnership relation exists between the parties.</p> <p>While in certain cases parties may be held to be partners as to creditors upon the ground that by participating in the profits of a business they take that which should be devoted to the payment of claims that arise in the business, the party must have a proprietary interest in the profits as such and not merely as a means of compensation.</p> <p>Where a bank, having bid in a certain theatre property at a foreclosure sale under a mortgage held by it, leased the premises with reservation of a certain portion of the profits as rental, all necessary repairs to be made from the income, and the parties did not intend a joint business undertaking in which each had a proprietary interest, there was no partnership inter sese.</p> <p>Upon a demise of real estate there is no implied warranty that the premises are fit for occupancy or suitable for the purposes for which they are leased.</p> <p>During an exhibition given in the theatre a member of a troupe of acrobats engaged by the lessee fell into a casting net placed in position under a trapeze and one of the hooks which held the guy cable in the rear tore through the floor breaking a “ V ” shaped iron cover and the cable about two feet from the hook with the result that both were hurled into the auditorium and struck and severely injured a spectator. An examination made after the accident disclosed that the “ Y ” shaped iron under which the strain of the hook came was broken in two and that the hook had torn through the floor leaving a hole about four inches long and five-eighths of an inch wide. Some of the witnesses described the wood at this place as being somewhat brittle. Others testified that the wood was sound at this place, but no evidence was given as to the condition of the breaks in the iron plate and cable. Some evidence was also given that in setting up easting nets in other places the floor where the hooks were attached would at times be reinforced by an extra board underneath the hole and also that the hooks fastened to guy cables would be attached to eye bolts screwed through the floor into the joists beneath. In an action to recover for the injuries to the spectator it was held at the trial that the evidence was not sufficient to sustain a- recovery against the bank andj as plaintiff did not desire any recovery against the lessee of the theatre alone, a verdict was directed in favor of both the lessee and the bank which had been made a party defendant. On motion to set aside the verdict and for a new trial, held, that a fair question of fact was presented as to whether the troupe of acrobats engaged by the lessee to give the exhibition used due care in the erection and securing of the casting net, and as it was the business of the lessee and not that of said troupe the relation of res-pondeat superior existed and the lessee was chargeable with the negligence of the acrobats, and the motion should be denied.</p>

<p>Wills — execution of — general rule — devise — what constitutes ademption of legacy — trusts — Personal Property Law, § 16 — Real Property Law, §§ 6i, 96, 1O4, ros — partition.</p> <p>While the general rule is that a will speaks from the death of the testator, in order to arrive at his intention it is proper to consider conditions as they existed when the instrument was drawn.</p> <p>Testator left him surviving his widow and three sons, the eldest of whom was about twenty-four years of age and married, to whom a child was bom after the death of testator, whose other sons are aged respectively eighteen and fifteen years. Testator by a will executed six years before his death devised to his wife the family residence and bequeathed to her an annuity and made a bequest to a friend of certain shares of stock of the S. & P. Co. The rest, residue and remainder of his estate he devised and bequeathed to his executors and trustees, in trust to collect and receive the income, rents, issues and profits therefrom and out of such income to pay all costs and expenses of executing the trust, including the sum of $300 annually to each of his trustees in lieu of commissions, and also the sum of $600 annually to his wife in monthly payments of $50 each during her life or widowhood, and out of the remainder of said income to pay and apply the same, or so much as said trustees in their discretion might deem necessary and proper, toward the care, support, maintenance and education of the testator’s three sons until the final distribution of the trust fund as directed in said will. The will then provided for equalizing the amounts to be paid to each of said sons and directed that upon the death or remarriage of his wife his estate should be divided into three separate parts as nearly equal as might be, taking into consideration the amounts advanced for the use of each of said sons, each of which parts should constitute a separate trust fund for the benefit of each of said sons, or if either of said sons should be dead at that time then the estate to be divided into as many shares as there were surviving sons after equalizing the same as above set forth, and to keep said separate trust funds invested and pay the net income therefrom quarterly to each of said surviving sons until they respectively reached the age of twenty-five years, or if they reached that age before her death or remarriage then until her said death or remarriage, and that upon arriving at that age or if it occurred before her death or remarriage then at her death or remarriage to pay and turn over to said beneficiaries the trust fund so held for their benefit with all accumulations thereon.</p> <p>The will further provided that said trustees should retain the interest and share of the testator in the S. & P. Co. until the termination of the trust or until such time as in their judgment and discretion they might determine that the business was unprofitable and unremunerative; in that event they were authorized to sell and dispose of the same and invest the share thereof which belonged to the testator.</p> <p>The will also provided that if in the judgment of- said trustees any' of his sons were not leading a wise or useful life they might withhold the payment over to him of such trust fund on his arriving at the age of twenty-five years, or the death or remarriage of his wife, and to hold such trust fund and continue to pay over to such beneficiary the income only until such time as said trustees should be satisfied that such beneficiary was entitled to be entrusted with the same. ■</p> <p>The testator left an estate of about $142,000 and was indebted about the sum of $20,000, and included in the estate was the house and lot devised to his wife of the value of about $12,000, thus showing net assets in the hands of the trustees amounting to about $110,000, which produces an annual income of about $12,000. At the execution of the will there was a barn in the rear of the family residence, but upon the.same lot, which was used for purposes incidental to the family residence. In an action brought for the judicial construction of the will, held, that the use of the bam passed to the wife for her life or widowhood.</p> <p>That it appearing that at the time of the execution of the will there was a corporation called S. & P. the business of which was closed up later, the corporation dissolved and a new corporation by the name of S. & P. Inc. organized, to which all the assets of the old corporation were transferred, it will be assumed that testator in making the legacy of corporate stock had in mind the stock he held in the S. & P. Co. and that the change in the corporate business did not constitute an ademption of the legacy which was general:</p> <p>That the trust in the residuary estate was valid, there being no persons in being by which such an absolute estate in possession of the trust property could be conveyed, as the interest of the beneficiaries is made inalienable by sections 104 and 105 of the Real Property Law, and a conveyance of the trust estate by the trustees would be contrary to the purposes of the trust.</p> <p>That separate trusts being provided for upon the death or remarriage of testator’s widow the period of the continuance of said trusts was to be determined by reference to each particular trust.</p> <p>Under the well-settled rule that where the purpose of a trust ceases the estate of the trustee ceases also and that a trust terminates when there ceases to be a beneficiary capable of calling for the enforcement of the same, a trust for the benefit of a son of testator, to continue until he arrives at the age of twenty-five years, is conditional upon his reaching that age, and as the duration of the separate trusts for testator’s sons could not exceed two lives in being, viz., that of testator’s wife and of each individual beneficiary, there was no infraction of the statute against perpetuities.</p> <p>That in the circumstances there was an implied direction that the trustees hold the property for the purpose of accumulations of the balance of the income, and the same not being for the benefit of the infants during their minority was within the condemnation of the statute (Personal Property Law, § 16; Real Property Law, §§ 61, 96), but such implied direction to accumulate the income only invalidates the trust to the extent that such accumulations are unlawful.</p> <p>That as the rights of the adult son are liable to be cut oft by his death during the life or widowhood of his mother he could not be said to be the owner of the next eventual estate and was not, therefore, entitled under the statute to take the rents and profits, there being no valid direction for their accumulation.</p> <p>That as the sons of testator were not by the terms of the will made owners of the next eventual estate and there was no residuary clause the accumulations of income must be regarded as undisposed of assets and divided yearly among testator’s wife and his next of kin under the statute of distributions.</p> <p>That the question whether upon a division of the estate the sum paid for the support of the married son should be taken into consideration in making the equitable division contemplated by the will ought not to be determined until that event arises when all the interested parties can be fully heard upon the subject; such course should also be pursued with regard to the right of succession in case any son died subsequently to the death or remarriage of testator’s wife and before payment to him of the trust fund.</p>

<p>Public Service Commissions Law, § 31—provision as to common carrier as to charges — contracts — railroads.</p> <p>Section 31 of the Public Service Commissions Law (Laws of 1910, chap. 480; Consolidated Laws, chap. 48), which provides that no common carrier shall charge or receive any greater or less compensation from one than it charges or receives from another for like and contemporaneous service under the same circumstances and conditions, changes the common law rule as established in this state for determining whether or not a contract for a reduced rate is legal.</p> <p>The legislature under the police power may control and regulate the fare to be charged by railroads and its power in that regard cannot be limited by a contract between a railroad company and one of its patrons.</p> <p>A contract by which a railroad company agreed to give to the members of a club a round-trip rate which was lower than the schedule of fares which had been duly posted and approved by the public service commission though valid in its inception became unenforcible upon the enactment of the Public Service Commissions Law.</p>

<p>. Appeal from an order of the City Court of Buffalo denying defendant’s motion for a supplemental bill of particulars.</p>

Motion to confirm report of commissioners appointed to ascertain damages incident to the talcing of property for purposes of a state road.

<p>Insurance (fire) — contents of policy of — meaning of word “ co-insurance ” — liability for loss — when method of apportionment is fixed by co-insurance clause.</p> <p>Where each of three full' co-insurance policies covering the buildings on six distinct parcels of land contained an apportionment clause as follows: “ This company shall not be liable under this policy for a greater proportion of any loss on the described property or for loss by and expense of removal from premises endangered by fire, than the amount hereby insured shall bear to the whole insurance, whether valid or not, or by solvent or insolvent insurers, covering such property and the extent of the application of the insurance under this policy or of the contribution to be made by this company in case of loss may be provided for by agreement or condition written hereon or attached or appended hereto,” and another company which had also issued a like policy on several of the buildings voluntarily paid an amount in compromise of its share of liability for a loss by fire, the liability of the other companies must be determined from the provisions of the policies issued by them without any reference to the amount paid by their co-insurer, if the aggregate payments do not exceed the loss.</p> <p>The word “ co-insurance ” means a relative division of risk between the insurer and the insured dependent upon the relative amount of the policy and the actual value of the property insured and is effective only when a partial loss is less than the amount of the policy; for a loss equal to or in excess of the amount of the policy the insurer is liable for the full insurance.</p> <p>Under such a policy the liability for a loss sustained to four of the six buildings must be computed in proportion to. the total value of all the property insured, as a computation on the value of the buildings damaged by fire would destroy the effect of the provision for co-insurance and leave the other buildings without any insurance.</p> <p>In an ordinary or “ straight ” policy of fire insurance the value of the property is not important so long as it is not less than the amount of the insurance. In such case if the loss is total and the value of the property equals or exceeds the amount of insurance the company is liable in the full amount of the policy, and in case of a partial loss is liable in the amount thereof.</p> <p>Where by adding together the items of liability of the company which issued the policy on several of the buildings and of the other companies the insured will in no instance receive the total amount of his loss, there can be no apportionment as he is entitled to the greatest protection possibly consistent with the provisions of the policy by which the method of apportionment is fixed by the co-insurance clause..</p>

Action to reform an insurance policy. The plaintiff entered into a contract with the state of New York for the construction of certain work embraced in what is known as contract 62 for the construction of the Barge canal, and George W. Beeman entered into a subcontract with the plaintiff for the construction of a part of the work and applied to the defendant for a surety bond.

Demurrer to the complaint. This action is brought by the plaintiff’s assignors to rescind for false representations subscriptions to bonds of the United States Independent Telephone Company carrying with them certain voting trust certificates representing stock of the company and to recover the amounts paid therefor by plaintiff’s assignors.

<p>Motion for judgment on the pleadings.</p> <p>This action is brought by plaintiff to rescind for false representations subscriptions to bonds of the United States Independent Telephone Company carrying with them certain voting trust certificates representing stock of the company and to recover the amounts paid therefor by plaintiff’s assignors.</p> <p>There are forty-six separate causes of action enumerated in the complaint each based upon a separate purchase all of which have been assigned to the plaintiff subject to retainer agreements.</p> <p>The complaint is based upon false representations and fraud in the sale of the bonds and the complaint séeks to compel the defendants to make good to her for the amounts paid for the bonds in question.</p> <p>A bill of particulars was furnished by plaintiff pursuant to an order from which among other things it appears that the latest of all the dates upon which bonds purchased were delivered to any of plaintiff’s assignors is November 21, 1906.</p> <p>The defendant, Powers, answered the complaint denying the allegations of false representation and_ fraud and alleged that plaintiff’s assignors purchased their bonds long prior to December 31, 1906, and that plaintiff and her assignors had an adequate remedy at law against which the Statute of Limitations had run.</p> <p>Plaintiff was required by order to reply to defendant Powers’ answer in which reply she denies upon information and belief the allegation in defendant’s answer with reference to the purchase of the bonds and makes various other denials and allegations.</p> <p>The defendant, Powers, now moves to strike out paragraphs 1, 2, 3, 5 and 6 of plaintiff’s reply as sham and false and moves for a judgment upon the pleadings,</p>

<p>Demurrer by Evelyn M. Edell on the ground that the complaint does not state facts. sufficient to constitute a cause of action.</p>

<p>Action upon a negotiable instrument.</p>

<p>Bridges — who may maintain action to compel restoration of — pleading — actions —• damages.</p> <p>Under section 3 of chapter 147 o£ the Laws of 1903, which declares: “New bridges shall be built over the canal to take the place of ..existing bridges wherever required, or rendered ■.necessary by.the new location of the canal,” a corporation, the owner of a toll bridge over the Mohawk river which was destroyed in the construction of the Barge canal, may maintain an action to compel the restoration of the bridge.</p> <p>While the effect of the repeal and expiration of plaintiff’s charter before the destruction of its bridge may be important on the question of its value, to be determined at the trial, its motion that its trustees be substituted as plaintiffs and be allowed to continue the action for the benefit of its creditors and stockholders will be granted, and also defendants’ motion for leave to serve a supplemental answer alleging that since the commencement of the action the bridge and franchises have been appropriated by the state and that by reason thereof plaintiff’s remedy, if any, is to recover damages.</p>

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

<p>Transportation Corporations Law, § 26 — when requirement of statute may not be ignored — municipal corporations.</p> <p>Under section 26 of the Transportation Corporations Law one operating a horse-drawn vehicle along and upon city streets for the carriage of passengers at a charge of fifteen cents or less, regular trips being made morning and evening, must procure the consent of the local authorities and aiso a certificate of public convenience and necessity, and the requirement of the statute may not be ignored on a showing that the passengers are only the employees of a manufacturing piant wno are a “ mutual transportation club ” each paying when he does ride a fare of five cents.</p>

<p>Evidence — action to recover for personal injuries — burden of proof — automobiles.</p> <p>Where a boy, who with permission of the driver was riding in a cart which was proceeding on a street car track, jumped from the rear end and seeing an approaching automobile either walked or ran into its side and was injured, and in an action to recover for personal injuries plaintiff has the verdict, it will be set aside and a new trial granted on the ground that it was contrary to the evidence, plaintiff having failed to sustain the burden of proof that his conduct did not in any way contribute to the accident.</p>

<p>Demurrer to first cause of action in complaint.</p>

<p>Banks — superintendent of — power of superintendent to carry real estate investments — receivers — foreclosure — power to declare dividend to general creditors upon claims as proved.</p> <p>Primarily, the superintendent of banks is an administrative state officer exercising supervisory and visitorial powers in the licensing, regulating and closing of the institutions subject to his control. While occupying that status and exercising such powers his discretion is not the subject of judicial review.</p> <p>When, or if, the superintendent determines that a banking institution is no longer solvent and takes possession of it for the purpose of liquidation, there springs up a new and different status and there devolve upon him new functions and different duties. He instantly assumes the position of a receiver and from that moment, except as the statute expressly gives him power to do certain things, he becomes the arm of the court and does not possess ñor can he exercise any judgment or discretion.</p> <p>While it is his duty to “ liquidate” the assets, ascertaining the validity of claims presented and paying creditors, it is his duty also before paying out any moneys to obtain the sanction and approval of the court.</p> <p>The administration and liquidation of the affairs of the Union Bank of Brooklyn from April, 1910, to May 1, 1916, under successive superintendents of banks, criticized on the ground of expenses of administration and especially in the payment of legal expenses incurred without the sanction of the court.</p> <p>Payments made by said superintendent out of the assets of said bank to one occupying the position of assistant district attorney and drawing a salary as such were illegal in so far as intended as compensation for services having relation' to the discharge of duties as assistant district attorney.</p> <p>The policy of the said superintendent and his successors in continuing without the sanction of the court to carry real estate investments of said bank, being assets of doubtful value, using liquid assets of the institution for the purpose and piling up a deficit by such retention, criticized.</p> <p>Completion of the liquidation of the affairs of said Union Bank of Brooklyn without further delay directed. To that end the superintendent directed to sell before September, 1916, all unsold real property of the bank, including all property belonging to it but carried in the names of its subsidiary corporations; foreclosure directed of mortgages now held, which are in default as to principal, interest or taxes; also sale of securities, including choses in action, still held as part- of the assets of the bank.</p> <p>Order granted that said superintendent be directed to declare out of the funds remaining in his hands, after payment of expenses, a dividend to the general creditors in the amount of five per centum upon their claims as proved.</p>

Application to review an alleged apportionment of the board of aldermen of the city of New York, within the fifth senate district.

<p>Action for the partition of real property.</p>

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

<p>Partnership — dissolution of — accounting — contracts — what is partnership asset.</p> <p>A purer and more elevated morality is demanded of partners than the common morality of the 'trade, and the standard by which they are tried in a court of equity is far higher than the ordinary standards of business; questionable dealing of any kind will not be tolerated.</p> <p>Upon the dissolution of a partnership by reason of the death of one of its members it is the duty of the surviving partner to wind up the affairs of the firm for the benefit of the partnership ; such partnership though legally dissolved continues the purpose of collecting and distributing its assets and performing antecedent obligations; the dissolution has respect only to the future, as to everything past the partnership continues until all pre-existing matters are wound up.</p> <p>Where a partnership is dissolved by reason of the death of one of its members the surviving partners are neither deprived of the power to perform existing contracts on behalf of the firm nor relieved of the duty of having them performed.</p> <p>Two firms of architects, R. & S., and W. & W., entered into a partnership for the special purpose of accepting employment in connection with the designing and erecting of the Grand Central Terminal Station in the city of New York and other buildings to be constructed in connection therewith, the compensation for which was to be fixed upon the basis of the entire amount of work done. R. was made executive head of the new partnership and the work for which it was organized was begun. About seven years later R. died leaving the work unfinished and shortly after the railroad company canceled the contract with the new partnership and signed a new one with W. & W. giving them the work in question. S. and the executor of R., upon a claim that the cancellation of the original contract and the substitution of W. & W. was brought about at the suggestion of the latter for the purpose of excluding plaintiff and the estate of R. from the profits of the work which had been assigned to the new partnership and upon which they were then working, brought an action for an accounting. Held, that the organization which the. new partnership had built up was a partnership asset of which W. & W. would deprive plaintiff and the estate of R. if they were not compelled to account for the profits which they had been able to make through its use.</p> <p>That the cancellation of the old contract and the making of the new one having been brought about by the actions and the attitude of W. & W. they violated their legal obligation as surviving partners, were guilty of a breach of trust of the partnership relation, and should be required to account accordingly.</p>

<p>Action for a separation under section 1762 of the Code of Civil Procedure.</p>

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

<p>Fences — boundary — recognition of boundary line.</p> <p>A boundary fence between tw.o city lots two feet from the line of the’ lots as it appears upon the map according to which the lots were conveyed will be treated as the true boundary line where it has been in existence for forty years and has been recognized as the boundary line during that time.</p>

<p>Wills — mutual — agreement devising life use of real estate — when conveyance set aside — contracts.</p> <p>Mutual wills made pursuant to an agreement devising the life use of real estate to the survivor with a remainder over to a third person are irrevocable after the death of one of the parties.</p> <p>A conveyance by the survivor of real property bound by mutual wills made under an agreement providing for the life use by the survivor with a remainder over will be set aside if the conveyance is made to avoid the. performance of the agreement or through fraud or undue influence.</p>

<p>Motion to vacate order allowing temporary alimony.</p>

<p>Action to establish an interest in real property.</p>

Application by the relator, a taxpayer of the city of Oswego, N. Y., for a peremptory writ of mandamus to obtain inspection of certain opinions claimed to be public records of the city of Oswego, pursuant to the provisions of section 51 of the G-eneral Municipal Law.

<p>Mandamus — peremptory writ of — requirement that state comptroller audit expenditures — State Finance Law, §§ 22, 23.</p> <p>Constitutional law — intention that moneys of state shall not be paid out without due audit — Constitution, art. Ill, §§ 19, 21; art. VII, § 6.</p> <p>The Constitution of the state (art. Ill, §§ 19, 21; art. VII, § 6) contemplates that the moneys of the state shall not be paid out without an audit, and the legislature is deprived of the power to audit.</p> <p>The state comptroller by section 4(4) of the State Finance Law is required to audit and liquidate the claims of all persons against the state if payment thereof out of the treasury is provided for by law, and by sections 22 and 23 of said statute he is required to state an account against every one receiving money belonging to the state for which he does not account when required.</p> <p>The comptroller of the state may be required by a peremptory writ of mandamus to audit the expenditures of the exposition commission appointed under the statute (Laws of 1915, chap. 541), a special act complete in itself, which required payment of the moneys appropriated thereby to be paid “upon the requisition signed by the chairman and vice chairman of the commission accompanied by an estimate of the éxpenses for the payment of which money so drawn was to be applied,” and which gives the comptroller no authority whatever although the money had been spent.</p>

<p>Penal Law, § 2193 — provisions of, in passing sentence — determination as to compensation — Laws 1916, chap. 358.</p> <p>Under section 2193 of the Penal Law which provides that the court, in passing sentence, must assume that the convict will earn the statutory commutation for good behavior, only the “ commutation ” which may be earned by good behavior is to be taken into account in fixing the termination of a sentence to a state prison, and the “ compensation ” which may be earned under chapter 358 of the Laws of 1916, not provided for by said section 2193 of the Penal Law, is not to be reckoned in fixing the date for the expiration of a sentence, as the court cannot determine what “ compensation ” may be earned by or allowed to the convict.</p>

<p>Labor Law, •§ 79b — modification of requirement relative to stairway inclosures — statutes.</p> <p>The industrial commission under section 79b of .the Labor Law, as amended in 1915, may modify its requirements relative to stairway inclosures with respect to existing buildings over six stories in height, and the owner of such a building before attacking the statute as unreasonable should have recourse for relief to the commission.</p>

<p>Actions — who may maintain — stockholders — contracts — corporations — when demand essential.</p> <p>Where after a theatrical company had agreed with the Argentine Republic to produce in the United States certain moving picture films the officers of the company conspired to use them for their own benefit, the right of action against them, if any, belongs to the company, and in order to enable the stockholders to maintain a suit in their own name it is essential to show that they made demand on the board of directors that suit be brought" by the company and that the board refused so to do, or unreasonably neglected to proceed, unless it is shown that the directors were hostile to the stockholders or were in some way concerned in the transaction complained of so as to render a demand useless.</p> <p>Where an action brought by stockholders owning more than a majority of the capital stock of the company against its officers for an accounting, etc., was tried upon the theory that there were five directors, and the testimony shows that plaintiff was a director and treasurer of the company, it may not be assumed, from the fact that no demand was made upon one of the defendants, who testified that he never was a director, that an action be brought by the company, that the board of directors consisted of four members, especially as it appears that there were stockholders other than plaintiff, and the other two defendants.</p> <p>Where the complaint did not allege that the other two defendánts dominated and controlled a majority of the board of directors in their alleged scheme to appropriate the films, it could not be presumed, in the absence of proof, that the fifth director was hostile to the contention of plaintiff.</p> <p>The fifth director not having been charged with having participated in the scheme of the other defendants it could not be fairly assumed that he didparticipate, so that plaintiff’s demand on the board of directors that the corporation bring suit would have been useless."</p>

<p>Plaintiff recovered after trial judgment for fifty dollars and twenty-five cents damages, and the defendant has appealed for a new trial. He makes this motion to be permitted to amend his appeal by eliminating therefrom the demand for new trial and to have the case transferred from the trial calendar to the law calendar.</p>

<p>Appeal from a judgment of Justice’s Court for sixty-one dollars and twenty-five cents damages and costs.</p>

<p>Application for an alternative writ of manda mm.</p>

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

<p>Motion to settle issues for trial by jury.-</p>

<p>Alimony — order requiring defendant to show cause why he should not he punished for contempt in failing to pay — Code Civ. Pro. § W3-</p> <p>Whether or not an order granted under section 1773 of the Code of Civil Procedure requiring the defendant to show cause why he should not be punished for contempt in failing to pay alimony is a court or a judge’s order will be determined not by the form of the order but by the facts whether or not at the time the judge granting the order was holding a term of court and authorized to grant a court order.</p>

<p>Contracts — performance condition precedent — actions — allegations — . allegations of complaint — pleading — Code Civ. Pro. § 533.</p> <p>The performance of a condition precedent under section 533 of the Code of Civil Procedure is sufficiently alleged in an action for wages and unlawful discharge under a contract of . employment as a salesman where the complaint alleges that he “ entered upon the performance of said contract and went out on the road and took and sent in orders to the defendant.” (Syllabus by the Court.)</p>

<p>Motion to make complaint more definite and certain and to compel an election.</p>

Motion to confirm report of commissioners of appraisal in grade crossing proceedings in the city of Corning, N. T. The Brie Railroad Company crossed Columbia and First streets in the city of Corning at grade. Proceedings were taken under the Railroad Law (§§ 91-94), to determine the necessity for the elimination of the grade crossing and the construction of an underground crossing in its place.

Motion to confirm report of commissioners of appraisal in grade crossing proceeding in the city of Corning, N. Y. The Erie Railroad Company crosses Columbia and First streets in the city of Corning at grade. Proceedings were taken under the Railroad Law (§§ 91-94) to determine the necessity for the elimination of the grade crossing and the construction of an underground crossing in its place.

<p>Statutes — legislative intent to reappropriate unexpended balance — city of Plattsburg.</p> <p>Condemnation proceedings — mandamus — when appropriation lapses — legislative appropriation.</p> <p>The legislative intent, by chapter 116 of the Laws of 1916, to reappropriate the unexpended balance of part of the former appropriation (Laws of 1914, chap. 95) made by chapter 616 of the Laws of 1915, and make it available for the cost and expense of acquiring a site upon which to erect a memorial in the city of Plattsburg to Commodore Thomas Macdonough, read in the light of the other legislation, is so clear that the statute of 1916 should not be nullified because of the inadvertent use therein of the date “November 1st, 1915” instead of “April 3, 1914.”</p> <p>Where by a judgment against the state in certain condemnation proceedings in which lands of relator were taken as a portion of a site upon which to erect the memorials mentioned in said statutes an award was made to relator, his application for a peremptory writ of mandamus to compel the state comptroller to issue his warrant to the state treasurer for the amount of said award will be granted as against the contention of said comptroller that the appropriation made by the legislature therefor had lapsed and no money was available for the purpose.</p>

The defendants, appearing by separate attorneys, move for the vacating of an order granted on the 11th day of July, 1916, pursuant to section 872 of the Code of Civil Procedure, for the examination of defendants.

<p>Motion by plaintiff for judgment on the pleadings, Defendant demurred to the complaint as not stating a cause of action. The action is for slander. The complaint alleges that at a meeting of an organization of which the plaintiff and defendant are members, the defendant, in the presence and hearing of divers persons, and with intent to cause it to be believed, maliciously spoke to, of and concerning the plaintiff the following false and defamatory words: “ I will not allow Mr. Dahm (meaning the plaintiff), or any other members of the union to look up or get any member’s record so that he, Dahm (meaning the plaintiff) could blackmail said member; ” that the defendant thereby intended to charge and injure the plaintiff in his good name and character and bring him into public scandal and that the “ said false and defamatory words were uttered by the said defendant maliciously and falsely so to be understood by the persons in whose presence and hearing they were spoken that the plaintiff hereir. was a blackmailer; ’ ’ and that by reason of the uttering of said words plaintiff has been injured and damaged “ in his good name, character and in business in the sum of ten thousand ($10,000) dollars.”</p>

<p>Statute of Limitations — when action must be brought within two years after action accrues — negligence — Code Civ. Pro. § 384.</p> <p>An action against a dentist for negligence to the injury of a patient is one for malpractice within the meaning of section 384 of the Code of Civil Procedure and must be brought within two years after the cause of action accrues.</p>

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

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

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

<p>Partition—when lease prima facie proof of rental value — evidence — tenants in common — use and occupation.</p> <p>Where one of the defendants in a partition action was to be charged with the rental value of the premises, the’ lease thereof formerly taken by him would be prima facie proof of such rental value, and interest would be properly chargeable thereon.</p> <p>Where there is a real and substantial contradiction in the testimony concerning the facts the court should seldom if ever reverse a finding as against the weight of evidence.</p> <p>Because a tenant in common was in possession of the whole or a part of premises sought to be partitioned affords no basis for compelling him to pay for use and occupation and he cannot be held liable therefor unless he had ousted his co-tenants or had agreed to pay rent.</p> <p>That a tenant in common had been the lessee of the premises from his co-tenants and had held over his term did not make him liable for the rental value; the presumption being that he over as one of the owners and not as a tenant.</p> <p>A tenant in common could not hold two of a number of booths on the premises for his exclusive use and prohibit his co-tenants from occupying those with him, even though they were permitted to occupy all the remaining ones; each co-tenant having the right to share in the possession of each of the pieces of property owned in common.</p> <p>Where a tenant in common ousts his co-tenants from a portion of the premises no presumption arises of an ouster from the whole premises.</p> <p>A tenant in common has no right to oust his co-tenants by force or otherwise.</p> <p>A tenant in common who neither denies his co-tenants’ rights nor a share in the possession of the premises does not oust him.</p> <p>A tenant in common of a number of booths on lands sought to be partitioned is justified in resisting the attempt of his co-tenants to obtain the whole possession and exclude him from his occupancy.</p>

<p>Action in equity.</p>

<p>Hearing upon informations lodged with a Supreme Court judge sitting as a committing magistrate.</p>

<p>Laches — when motion vacated because of — security for costs — waiver —■ undertaking to secure costs.</p> <p>In the absence of a valid excuse for delay defendant’s failure to require plaintiff to give security for costs will be deemed such laches as will amount to a waiver of his right to such security.</p> <p>An ex parte order requiring plaintiff to deposit $250 or in lieu thereof to give an undertaking to secure defendant his costs if successful, granted more than a year after service of the answer, will be vacated on motion because of laches.</p>

<p>Societies — fraternal benefit—actions—insurance — Laws of rgn, chap. ig8.</p> <p>Where on the trial of an action against a fraternal benefit society, as defined by chapter 198 of the Laws of 1911, which amended the Insurance Law, to recover the amount claimed to be due plaintiff as the beneficiary named in a certificate of membership in the defendant, issued to ‘one since deceased, plaintiff admits on the witness stand that she was not a blood relative of decedent, she is not entitled to recover and a judgment in her favor will be reversed and the complaint dismissed, with costs.</p>

<p>Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, fifth district, rendered May 24,1916, in favor of plaintiff, after a trial by the court without a jury, for $204.75 damages and costs.</p>

<p>Judgments — entry of — in action to foreclose chattel mortgage — appeal — trial — verdict — Municipal Court of city of New York — Municipal Court Code, §§ 74, 158.</p> <p>Upon the trial of an action in the Municipal Court of the city of New York to foreclose a chattel mortgage, the clerk upon a directed verdict entered judgment in the form of a money judgment from which an appeal was immediately taken, and three days after the trial justice signed what purported to be a judgment of foreclosure in conformity with section 74 of the Municipal Court Code; such judgment, however, bore no file mark and was dated three days after the entry of the judgment by the clerk and after the date of the service and filing of the notice of appeal from the judgment entered by the .clerk; what purported to be the judgment of foreclosure was not referred to in the clerk’s return on appeal which stated that judgment was rendered on the day that the clerk entered judgment. The decision of the justice dated the day of the entry of judgment by the clerk did not direct him to enter judgment but directed the plaintiff’s attorney to submit the form of judgment. On the hearing of the appeal, held, that but for the fact that the return, which specified only that judgment, was approved and allowed by the justice, the judgment entered by him was unauthorized but it must be presumed that the justice gave all directions to the clerk to enter it and was the only judgment in the action.</p> <p>That the appellate court could not permit the notice of appeal to be amended, under section 158 of the Municipal Court Code, so as to specify the judgment of foreclosure, as that would in effect be permitting an appeal from that judgment after the time to appeal had expired.</p> <p>That the judgment of foreclosure was a nullity because the judgment entered by the clerk upon the directed verdict was never vacated and there cannot be two judgments in one action.</p> <p>That as the judgment entered by the clerk did not conform to section 74 of the Municipal Court Code it must be reversed, it being too late to remit the ease to the trial court for the correction of the first error, and a new trial ordered.</p>

Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, sixth district, entered the 4th day of March, 1916, dismissing the complaint, at the close of the plaintiff’s case, upon the merits, after a trial before the court without a jury.

Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, seventh district, in favor of the plaintiff, entered on a verdict of a jury, and also from an order denying defendant’s motion to amend by setting up a counterclaim, and from an order denying defendant’s motion for a new trial.

Appeal by the plaintiff from a judgment rendered in the Municipal 'Court of the city of New York, borough of Brooklyn, seventh district, on the 20th day of April, 1916, in favor of the defendants and against the plaintiff, dismissing the complaint on the merits; and from an order denying the motion made by the plaintiff for judgment on the pleadings.

<p>Appeal by plaintiff from a judgment rendered in the Municipal Court of the city of New York, borough of Brooklyn, sixth district, on the 10th day of February, 1916, in favor of the defendant and against the plaintiff, dismissing the complaint on the merits.</p>