Volume 97 — New York Miscellaneous Reports

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

<p>Insurance (burglary) — action on policy against burglary, larceny and theft — evidence — appeal.</p> <p>In an action on a policy of insurance against burglary, larceny and theft, to recover the value of certain jewelry alleged to have been stolen from the residence of plaintiff, he is not required to show by direct evidence a felonious abstraction of the property; it is enough to make proof of circumstances sufficient to raise an inference that it had been feloniously abstracted.</p> <p>The evidence -in such an action considered, and held that plaintiff had made out a prima facie case and that a dismissal of the complaint at the close of plaintiff’s case on the ground that the proof of larceny was insufficient will be reversed and a new trial ordered.</p> <p>A defense not pleaded that the holder of the policy breached the warranty that he had never sustained a loss by burglary cannot be considered on appeal.</p>

Appeal by defendant from order of the City Court of the city of New York overruling its demurrer to the amended complaint.

Appeal by plaintiff from a judgment of the City Court of the city of New York, in favor of defendant, upon a directed verdict at the close of the entire case.

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

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

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

<p>Cross-appeals from judgment of the City Court of the city of New York.</p>

Appeal by the plaintiff from a judgment of the City Court of the city of New York, dismissing the complaint upon the merits.

<p>Appeal by defendant from a judgment in favor- of plaintiff for the sum of $1,092.03 damages and costs, and from an order of the City Court of the city of New York denying a motion for a new trial.</p>

<p>Contracts — when, may he canceled — specific contingencies in contract.</p> <p>A contract to furnish a certain amount of crystal carbolic acid which contains a clause that “ contingencies' beyond your control, fire, strike, accidents to your works or to your stock or change in the tariff will allow you to cancel this contract or any part of the same,” may be canceled whenever contingencies such as the European war preclude performance by defendant, it being clear that plaintiff understood that the goods called for by the contract were made and imported from abroad.</p> <p>The specific contingencies named do not restrict the words “ contingencies beyond your control ” which include all contingencies not specifically mentioned.</p>

<p>Mortgages — assignment of — who bona fide purchaser — title—meaning of “ purchaser ” — Real Property Law, §§ 290, 291.</p> <p>The assignee of a mortgage holds it subject to the same equities and defenses as can be interposed against his assignor.</p> <p>The assign»! of a mortgage is a “purchaser” within the meaning of the recording act (Real Property Law, §'§ 290, 291), which declares that every unrecorded conveyance of real property shall be void as against “ any subsequent purchaser in good faith and for a valuable consideration whose conveyance is first duly recorded.”</p> <p>The rule seems to be that a bona fide purchaser of a mortgage for value without notice of a junior mortgage, who records his assignment, is entitled to priority over a prior unrecorded mortgage of which his assignor had full knowledge.</p> <p>A vendee in possession of real estate under an executory contract of sale is to a certain extent the equitable owner of the property, but, while a mortgage given by him which contains "no covenants of title or for further assurance has priority over a mortgage given subsequently and recorded before the mortgagor receives his deed, the first mortgage is a prior lien only to the extent of the interest he had in the property when said mortgage, was given.</p>

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

<p>Appeal from a judgment of the City Court of Buffalo, dismissing the plaintiff’s complaint.</p>

<p>Motion for the continuance of a temporary injunction.</p>

<p>Motion by the defendants Murphy, Jenks and Sirinott, to have the plaintiff’s complaint made more definite and certain.</p>

Motion by plaintiffs for judgment on the pleadings, and demurrers by defendants to the complaint, on the grottnd that it does not state facts sufficient to constitute á cause of action, and that causes of action have beenúmpropéi’ly united.

<p>Bail — application for, pending trial for indictments — power to admit to bail governed by same rules as at common law — Code Crim. . Fro. § 553.</p> <p>Section 553 of the Code of Criminal Procedure, which provides that bail shall be allowed as matter of right in misdemeanors and as a matter of discretion in all other eases, being but a statutory declaration of the common-law rule, the exercise of the discretionary power to admit to bail should be governed by the same rules as at common law.</p> <p>An application for bail pending the trial of ninety-two indictments each charging defendant with dishonesty in connection with the work of the construction of a certain public hospital will be denied where it appears that while traveling in a foreign country under' an assumed name he was arrested on extradition process, the court not being satisfied that there is no danger of his leaving the country.</p>

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

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

<p>Contracts — provisions of — municipal corporations — liability for extra work — damages.</p> <p>While a contractor should be held to a strict compliance with the terms of a contract with a city for the construction of a sewer, in the light of the maps, drawings, plans and specifications and should take all reasonable precautions to advise himself as to what he is undertaking and as to what he is reasonably expected to do, the city should take the same precaution and opportunity of informing itself through its engineers and experts to ascertain the true conditions under which the contractor will be called to perform and to do all that it reasonably undertakes to do.</p> <p>In such ease, the city should not receive the benefit of work done and materials furnished by the contractor through a technical construction of the terms of the contract, or to the advantage of the city which had the greatest opportunity to know what was actually required and expected to be done under the contract.</p> <p>Where the specifications provided that the contractor should make a claim for damages within five days by a written statement to the city engineer and that an itemized statement of the claim should be filed with him on or before the fifteenth of the month next succeeding that in which any damage should have been sustained, and that unless such a statement should have been made as required the claim should be forfeited and invalidated, such provisions of the specifications do not constitute a condition precedent to the contractor’s right to recover but at most make a limitation of plaintiff’s right to recover at common law and are, therefore, matters which must be pleaded as a defense.</p> <p>Where drawings forming a part of the contract showed profiles of the sewer and indicated rock formation which passed under the lower line of the sewer at both ends and only 550 cubic yards of rock to be excavated, but the contractor in excavating found 1,650 cubic yards of rock, none of which appeared on the surface, the city is properly held liable for the extra work.</p> <p>The question whether the 1,650 cubic yards were within the terms of the contract being fairly debatable and its determination surrounded by doubt, the contractor could proceed, under protest, and recover damages measured by the value of the extra work or materials required of him.</p> <p>Under a provision of a contract that where pipes were encountered the contractor should not interfere or remove them without the consent of the owners, and that if the removal became necessary the contractor should notify the respective owners and if they failed to do so the city would cause the pipes to be removed, and pipes owned by a water company and steam pipes owned by a religious corporation not having been removed upon due notice given to the owners and the city upon notification did not remove them, the contractor is entitled to recover as damages the costs occasioned by extra work in going around the pipes in both instances.</p>

<p>Marriage — action to annul — divorce — jurisdiction of Supreme Court when void — when marriage not annulled for fraud — contracts.</p> <p>Where in an action to annul a marriage it appeared that a decree of absolute divorce in favor of defendant’s former husband provided that, it should not be lawful for her to marry again until plaintiff in that action was actually dead, and it further appears that at the time of her marriage in 1903 to plaintiff herein her former husband was living and that she had not received permission from the court to marry again, the marriage between plaintiff and defendant was and is void.</p> <p>The jurisdiction of the Supreme Court to annul marriages is purely statutory except in those cases in which annulment is sought for some cause for which chancery has power to cancel or avoid all contracts, such as lunacy or fraud; in which eases jurisdiction is inherent.</p> <p>While in the present action the court has inherent jurisdiction to declare the marriage absolutely void, yet it appearing that the facts were not made known to plaintiff: who upon a discovery of them thirteen years after the marriage separated from defendant, a decree for the annulment of the marriage on the ground of fraud will be granted.</p> <p>A marriage will not be annulled for fraud unless the facts misrepresented or concealed go to the very essence of the contract.</p>

<p>Action to enforce the constitutional and statutory liability of the shareholders of the Lafayette Trust Company.</p>

<p>Marriage — action for annulment of — when contract of marriage void — Code Civ. Pro. § 1743(1) — age of consent.</p> <p>Where a son nineteen years old, after obtaining a marriage license upon his statement that he was twenty-two years of age, contracted a valid marriage without his father’s consent, an action by the father for the annulment of the marriage will not lie.</p> <p>Section 1743(1) of the Code of Civil Procedure, providing that an action may be maintained to declare a marriage contract void and annulled for certain enumerated reasons, as amended by Laws of 1916, chap. 605, applies to foreign states where the age of consent is not- provided for but requires the consent of parents or guardians.</p>

<p>City of New York —street openings in — condemnation proceedings — evidence — Greater New York Charter, § ggg.</p> <p>Where after the death of one of the commissioners appointed in a proceeding for the opening of a street in the city of New York the evidence adduced during his lifetime was made use of by the other commissioners in making up their report, and the city makes no claim that the matter had to be gone over anew, it is liable to the estate of the deceased commissioner for his fees, it appearing that the city was not called upon to pay his successor any fees or charges for work done or time spent by the now deceased commissioner.</p> <p>There is nothing in the provisions of section 999 of the Greater New York Charter relating to costs of commissioners and fixing their compensation which precludes the making of an allowance to the estate of a deceased commissioner upon the theory of quantum meruit for the work which he faithfully performed.</p>

<p>Motion to restrain defendant from discontinuing telephone service pending the trial of the action.</p>

<p>Foreclosure — of mortgages — judgment — real property — notice of sale — publication of description — Code Civ. Pro. §§ 1435, 1678 — rule 15, Special Term Rules, First Judicial District.</p> <p>Neither the provisions of sections 1435 and 1678 of the Code of Civil Procedure nor of rule 15 of the Special Term Rules, First Judicial District, require the publication of the description of the real property directed to be sold pursuant to a judgment in foreclosure; all that is necessary is to describe the property with common certainty.</p> <p>While a notice of sale in foreclosure containing a condensed description of the property with the addition of the points of the compass upon an accompanying diagram of the premises is a compliance with the law, the court, to preclude any possibility of doubt, may require that a reference be made in the notice of sale to the book, page, block and section in which the mortgage in suit is recorded.</p>

<p>Action for rent due upon a lease.</p>

<p>Demubbeb to complaint.</p>

Action to have it decreed that plaintiff, since 1883, has had a valid franchise to construct, maintain and operate electrical conductors in the streets of the city of New York.

<p>Actions — by guardian ad litem — for breach of contract — infants — damages — costs.</p> <p>While an action for breach of promise to marry should not be stayed for nonpayment of the costs in an action brought by the guardian ad litem of plaintiff to recover damages for defendant’s breach of an alleged contract to maintain and support plaintiff during her life in consideration of her agreement not to sue him for breach of promise to marry, the prosecution of the present action will be stayed until payment of the costs in a similar action based on the same facts brought by said guardian ad litem.</p>

<p>Divorce — action for — alimony — marriage — contracts.</p> <p>A wife who brings an action for absolute divorce has a legal right to apply for alimony and counsel fee.</p> <p>An agreement by her to relinquish such right in consideration of her husband’s promise to pay her a certain sum and a reasonable counsel fee, though made before the action for divorce was commenced, neither altered nor dissolved the marriage, nor did it release him from his obligation to support her and being based on a good and valuable consideration is enforeible in an action at law.</p>

<p>Application for an injunction and a receiver pendente lite.</p>

<p>Appeal from the decision of the supervisor of the town of East Bloomfield, Ontario county, made pursuant to section 6 of the Village Law, adverse to the proposed incorporation of the village to be known as the " Village of Holcomb. ’ ’</p>

<p>Appeal from a judgment rendered in the City Court of the city of Norwich.</p>

<p>Habeas corpus — to inquire into cause of detention of relator held on warrant — evidence — criminal law — when writ must be dismissed.</p> <p>On habeas corpus to inquire into • the cause of the detention of relator held on a warrant issued by the governor of this state upon the requisition of the governor of another state demanding relator’s return on the ground that he had committed a certain designated offense, which said executive certifies is a crime under the laws of that state, the presentation to the governor of this state properly authenticated of a copy of the information duly verified, charging relator with having committed said offense together with the warrant issued thereon, is sufficient to require the surrender of relator, and the .writ of habeas corpus must be dismissed.</p> <p>Where the representations of the governor of the demanding state, as to relator’s commission of the offense charged and that he has fled from the demanding state and taken refuge in the state of New York, appear upon the face of the warrant issued by the governor of New York, and relator refuses to offer any evidence as to his whereabouts at the time of the commission of the crime charged, the statements in the governor’s warrant must he taken as proof of the fact that relator was corporeally present in the demanding state at the time the crime charged was committed therein.</p>

<p>Application under section 153 of the Election Law to compel the board of election inspectors to convene and add petitioner’s name to the books"of registration of the election district where he resides.</p>

<p>Referee — to hear and determine — decision of referee not reviewable at Special Term — stenographer’s fees — when motion to set aside referee’s report granted.</p> <p>A decision of a referee appointed to hear and determine the issues in an action is not reviewable at Special Term; the only remedy for an error made by him in deciding questions of law and of fact submitted to him is by an appeal.</p> <p>Where a referee to hear and determine wrote to defendant’s attorney that his report was ready for delivery upon payment of his and the stenographer’s fees, and they were not paid, and the referee’s report was not filed until sixty days thereafter, and defendant had filed requests to find, defendant’s motion to set aside the report and decision of the referee and to vacate the order of reference will be granted.</p> <p>The right of a referee to his fees does not accrue until he has completed the reference and filed or delivered his report.</p>

<p>Action on a surety bond. -</p>

<p>Bonds — contractors — indemnity to city on contractor’s bond — surety.</p> <p>Where a municipal charter provides that no action shall be .brought on a contractor’s bond given to indemnify the city on a paving contract after one year from the time when the cause of action accrued, and a bond of the contractor giving any subcontractor for labor or material the right to sue on default of his principal provides that no action shall be brought within one year after the cause of action accrues, the surety on such a bond is liable in an action brought thereon after the year.</p> <p>The limitation clause affects only the remedy not the right of action, and the surety cannot be heard to complain of the terms of the bond.</p>

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

<p>Jury — testimony of jurors as to what occurred on voir dire examination of fellow juror — when testimony as to what occurred in jury room cannot be used — new trial.</p> <p>The testimony of jurors as to what occurred on the voir dire examination of a fellow juror can be used on a motion for a new trial based upon the fact that upon such examination he concealed and omitted to reveal his relations with officers and members of the defendant corporation.</p> <p>Testimony as to what occurred in the jury room during the ' deliberations of the jury cannot be used on plaintiff’s motion for a new trial.</p>

<p>Actions by certain taxpayers of the town of Hadley, Saratoga comity, N. Y., under section 51 of the General Municipal Law.</p>

<p>Membership Corporations Law, § 16—power of visitation — misapplication or misuse of charitable funds—'Cemetery corporations — examination of witnesses — rights of certificate owners determined.</p> <p>While a court of equity never had any power of visitation, yet when a question arose in a proper form as to the use of funds devoted to charitable purposes equity always assumed jurisdiction to determine the question.</p> <p>In this state there is no general power of visitation in the Supreme Court and resort to the common law would be necessary to determine the intent of any such power conferred by ' statute, and whatever it might be it would not include the regulation and control of the finances of an' institution or the power to direct their application.</p> <p>Unless otherwise provided, the misapplication or misuse of charitable funds must be determined in a court of equity or at law in a proper ease.</p> <p>The power of visitation vested in the Supreme Court by section 16 of the Membership Corporations Law and other statutes where the word ‘ ‘ visitation ’ ’ is used confers no power to do anything other than as specifically stated in said section.</p> <p>Under said section 16 of the Membership Corporations Law the Supreme Court has power to make an order requiring an inventory and account of the property, effects and liabilities of a cemetery corporation, with a detailed statement of its transactions during the twelve months next preceding the granting of said order.</p> <p>The court also under its “ visitation ” power may appoint a referee to take and state the account, determine the annual income of the corporation, the amount of its property, whether any has been misappropriated or diverted and whether the corporation has exceeded its charter powers; but the court can neither order money to be paid back nor give any direction for the future, disobedience of which can be punished as for a contempt.</p> <p>The referee appointed to take and state the account has power to examine the officers of the corporation and witnesses as to the misappropriation or diversion of corporate funds alleged to have been taken by the officers for salaries and sendees.</p> <p>Where with the exception of such moneys the application made of the funds of the corporation sufficiently, appears without the examination of witnesses the report of the referee will be confirmed without direction and the petitioner for a visitation of and by a justice of the Supreme Court will be left to his remedy in equity where all the facts can be brought out and the officers of the corporation and witnesses can be examined and the rights of the certificate holders definitely determined and secured.</p>

Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, entered upon a directed verdict.

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

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

<p>Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, seventh district, setting aside a verdict in favor of plaintiff and dismissing the complaint.</p>

Dependant appeals from a judgment of the 'City Court of the city of New York, entered on the verdict of a jury in favor of plaintiff, and from an order denying a motion for a new trial.

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

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

<p>Contracts —■ provisions in building contract —• breach of — subcontractor — actions — trial.</p> <p>A provision of a building contract that for a subcontractor’s breach thereof the contractor might terminate the contract and use any materials, implements, etc., furnished by the subcontractor and then on the premises does not entitle the contractor to use them for the completion of the contract after ordering the subcontractor off the job.</p> <p>Where a subcontractor sues a contractor for a breach of the contract a judgment in plaintiff’s favor is res adjudicata that he did not breach the contract in an action brought by him for the conversion of said tools and materials which under the contract defendant was entitled to use only in case plaintiff breached the contract.</p> <p>Where in the latter action plaintiff proved a breach of the contract on the part of the contractor through orders of its foreman in active charge of the work, and the sole surviving ■ issue to be determined by the jury as between plaintiff and the individual defendant, said foreman, was whether he actively participated in the alleged conversion, plaintiff, before a decision upon a motion by the foreman for the dismissal of the complaint as to him, should have been permitted to reopen the case and prove the foreman’s responsibility by the testimony of witnesses then in court.</p>

Appeal by plaintiff from an order granting a motion to open defendant’s default in the Municipal Court of the city of New York, borough of Manhattan, eighth district.

Appeal by defendant from a judgment of the Municipal 'Court of the city of New York, borough of Bronx, second district, in favor of the plaintiff; also from order denying defendant’s motion to set aside the verdict and for a new trial.

<p>Appeal from an order of the City Court of the city of New York, granting defendant’s motion for judgment on the pleadings.</p>

<p>Bill of particulars — when plaintiff ordered to furnish a — action to recover damages caused by collision between automobiles — appeal.</p> <p>Where, in an action to recover damages caused by a collision between automobiles, plaintiff has been ordered to furnish a bill of particulars giving a detailed statement of each and every negligent act or omission of defendant which plaintiff claims caused or contributed to the accident, and the moving p'apers, upon which an order- for the examination of defendant who drove the other defendant’s car was based, set forth.that the accident occurred while plaintiff was driving his ear at eleven o’clock P. m. which was struck from behind by defendant’s car and that plaintiff was entirely ignorant of all the items referred to in defendant’s demand for a bill of particulars, the order therefor was properly granted.</p> <p>The point that the order for the examination of said defendant should not have required him to appear in the county in which the venue of the action was laid could not be raised for the first time on appeal from said order.</p>

<p>False imprisonment — action for — City Court of city of New York — trial—-when service of notice of trial after motion to dismiss cannot avail plaintiff.</p> <p>Where in an action brought in the City Court of the city of New York for false imprisonment issue was joined on the sixth day after service of the summons and complaint, but no note of issue was filed nor notice of trial served until after a motion to dismiss the action for lack of prosecution, at a time when earlier issues had been heard and disposed of, the fact that plaintiff’s attorney in moving his office had mislaid the papers was not a legal excuse and an order denying the motion to dismiss will be reversed and the motion granted.</p> <p>Service of notice of trial by plaintiff’s attorney after the motion to dismiss had been made could not avail plaintiff.</p>

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

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

<p>Corporations — negotiable instruments — interest at rate of 130 per cent per annum paid for loan — estoppel — contracts — usury.</p> <p>Where one who had been a director of a corporation purchases its antedated notes from the payee for less than their face value and without inquiry though the maker had its office and place of business in the city where he lived, he is not a bona fide holder in due course.</p> <p>The president and general manager of a business corporation has no apparent authority to pay interest at th.e rate of 130 per cent per annum for a loan to the corporation and one with whom he so contracts is put upon inquiry as to his authority.</p> <p>One claiming that the corporation by its course of dealing was estopped to deny the authority of its president must prove that he relied upon such course of dealing.</p> <p>Though the corporation had received the benefit of the loan it could repudiate the agreement made by its president as to interest but was liable" for interest at the legal rate as upon quantum meruit.</p>

<p>Appeal by tenant from final order in summary proceedings in the Municipal Court of the city of New York, borough of Manhattan, third district, awarding possession of premises to petitioner.</p>

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

<p>Carriers — damages — evidence — judgment — actions.</p> <p>Witness — when witness may use copy to refresh his memory as to contents of a certain paper—- evidence.</p> <p>Although in an action against a carrier for damages to'goods while in transit every element of defendant’s liability is satisfactorily established, a judgment in favor of plaintiff will be reversed where there is no competent proof of the market value of the goods upon arrival at their destination.</p> <p>Plaintiff was entitled to recover the difference between the sound value of -the goods, which was established, and their market value at the point of destination.</p> <p>Where a witness testifies- to his present recollection of ;the facts stated in a paper he may use a copy to refresh his memory as to its contents, but if he merely. has a present confidence that the paper states facts he once knew the original paper must ;be produced or its absence accounted for, whether it is desired to put it in evidence or have the witness read its contents into the record.</p>

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

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 the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, rendered in favor of plaintiff and bringing up in the notice of appeal for review an order denying the defendant’s motion to transfer the action to the sixth district, borough of Brooklyn.

Appeal by the defendant from an order of the Municipal Court of the city of New York, borough of the Bronx, second district, opening the default of the plaintiff.

<p>Action to enforce a written guaranty.</p>

<p>Motion for judgment on demurrer. -</p>

<p>Motion to vacate a judgment for deficiency against defendant Dora Lawrence by default.</p>

<p>Application for writ of mandamus to compel the issuance of a license to sell milk.</p> <p>The relator is a milk dealer who has heretofore had a license to sell milk in the city of Rochester, but was denied such license for the year 1916 because he refused to submit to a blood test intended to show whether or not he had had typhoid fever and was a carrier of typhoid germs. The health officer refused to issue the license on the ground that it was necessary for the preservation of public health that all applicants for milk licenses should be required to submit to the test referred to. The relator appealed to the commissioner of public safety who determined that the health officer should issue licenses to those who submitted to the blood test and were found not to be carriers of typhoid and thereupon the commissioner of public safety instructed the health officer to notify the relator to that effect. It was determined that the requirement as to inoculation should not be insisted upon by the health officer, but that the common council should be requested to pass an ordinance requiring such inoculation. Notice was given to the relator who thereupon appeared before the commissioner of public safety and demanded that a license be issued to him and the commissioner told him that he would not direct a license to be issued unless relator submitted to the blood test and was not found to be a carrier of typhoid. The relator refused to submit to such a blood test and this motion for a mandamus was thereupon made by him.</p>

<p>Workmen’s Compensation Law — negligence — interstate railroad — when award to injured employee under State Workmen’s Compensation Law bar to action under federal statute — Federal Employers’ Liability Act.</p> <p>An interstate employee of an interstate railroad company injured through its negligence, is restricted to the remedies afforded by the Federal Employers’ Liability Act.</p> <p>Where such an employee is injured without negligence of the railroad his remedy is under the State Workmen’s Compensation Law.</p> <p>An award made'to said employee under the State Workmen’s Compensation Law is a bar to an action under the federal statute to recover for the same injuries.</p>

<p>Action in ejectment. Defense, adverse possession.</p>

<p>Foreclosure — of mortgages — insurance (fire) — option to declare whole - sum secured by mortgage due and payable — Real Property Law, § 254(3).</p> <p>Where a mortgagor of real estate, after repeated demands, fails to have the buildings thereon insured and permits them to become vacant, making it impossible for the mortgagee to effect such insurance, he is, under the usual insurance clause of the mortgage giving him the option to declare the whole sum secured by the mortgage due and payable, authorized by section 254(3) of the Real Property Law to bring an action to foreclose because of the mortgagor’s breach of his covenant to insure.</p>

<p>Depositions — when order for examination before - trial granted — slander — pleading — Code Civ. Pro. § 873.</p> <p>Where the court in its discretion grants an order for the examination of a party before trial, the examination need not be limited to an affirmative cause of action or an affirmative defense. Whether the moving papers on such a motion present a ease for the order asked £or is a matter for judicial determination.</p> <p>Where an issue of fact is presented to be determined upon the trial of the action, and it appears that a party thereto has knowledge of facts which are material in the determination of such issue, his adversary may take that party’s deposition for use at the trial.</p> <p>Under section 873 of the Code of Civil Procedure the extent and scope of the examination of a party before trial rests in the discretion of the judge granting, the order.</p> <p>Where in an action for slander the complaint charges all of the defendants with conspiracy to defame and injure plain-, tiff and specific overt acts pursuant thereto by some of the defendants, and proof of the conspiracy will probably have to be obtained from the defendants, and though the utterance of the alleged slander and the names of those who- heard it can be proved at the trial by witnesses other than defendants, plaintiff, though the answer contains a general denial, may be granted an order for the examination before trial of defendants on the points whether there was a conspiracy and, if so, the time and place, and whether they uttered the slander on the dates as alleged.</p>

<p>Insurance (casualty) — policy of — automobiles — actions.</p> <p>Where a casualty company by letter assumes the defense of an accident action against the owners of an automobile which it had insured, under a reservation of policy rights and without assuming any liability for any judgment that might be recovered in the action, the reservation of rights means only that the company will assume the defense of the action from such liability, if any, as it must assume under the policy.</p> <p>Where a policy of insurance against casualty loss resulting from the operation of an automobile was issued to the members of a copartnership, it covers any loss not only which might come to the partnership funds, but also any loss-which might come to either member as individuals through the operation of the automobile by another partnership composed of themselves and- another to which the automobile had been ■loaned.</p> <p>The casualty company having assumed the defense of the action, which was settled on the recommendation of its attorney, was liable under the policy issued by it.</p>

<p>Undertaking — giving of an — when order granting warrant win be vacated in absence of such an undertaking — Code Civ. Pro. § 559.</p> <p>The giving of an undertaking as required by section 559 of the Code of Civil Procedure relating to actions for personal injury is a condition precedent to a valid order of arrest in a civil action for assault, and an order granted in the absence of such an undertaking will be vacated.</p>

<p>Corporations — lease by directors — whether unfair and oppressive to minority stockholders.</p> <p>Public Service Commissions Law, § 55 — when approval of railroad lease not res adjudicate of stockholders’ rights — minority stockholder of lessor accepting extra dividend — lease held unfair — function of public service commission..</p> <p>The only question that survives the approval, by the majority of the stockholders of a corporation, of the action of its hoard of directors making a certain lease of its properties is whether such action has been so plainly unfair and oppressive of the minority stockholders that the court should interfere for their protection.</p> <p>The determination of the public service commission by which a lease from one railroad company to another was authorized, over the objection of a minority stockholder of the lessor, is not res adjudicate of its rights since the public service commission was constituted to protect the rights of the public not the rights of stockholders between themselves, said commission having no jurisdiction to conclude the stockholders as to their rights inter se.</p> <p>That the minority stockholder at the making of the lease received an extra dividend which was not paid under or pursuant to any terms of the lease, the making of which had nothing to do with the creation of the fund out of which said dividend was paid, did not estop the minority stockholder from objecting- to the leqge.</p> <p>By a lease of the property of one railroad company to another which held a majority of its stock, the membership of the board of directors in both corporations being substantially identical, the lessor was required on the request of the lessee to "issue bonds or stock in such amount as it might •require for various pup oses set forth in the lease, including such extensions, branches or even other railroads as it might see fit to build. The lessee was not bound by anything in the lease or by the approval thereof by the public service commission to pay or guarantee payment of either principal or interest of new bonds issued by the lessor. Held, that the lease was plainly so unfair and oppressive of the rights of a minority stockholder of the lessor that the court will interfere for its protection and that it was not for said stockholder to show that every one of the alternate courses permitted by the lease would result disastrously to the lessor.</p> <p>Though section 55 of the Public Service Commissions Law regulates the issuance of stock, bonds and other forms of indebtedness of common carriers, railroad corporations and street railroad corporations which are payable at periods of more than twelve months after the date thereof, minority stockholders need not rely for protection of their interests on the public service commission, in ease of threatened illegal action by the corporation.</p>

<p>Certiorari proceedings.</p>

<p>Statutes — construction of — provisions of — city of New York — Rapid Transit Act — elevated railroads — rapid transit commission.</p> <p>The statute known as the first Rapid Transit Act (Laws of 1875, chap. 606) authorized the appointment of commissioners to determine inter alia the necessity for the building and operation of an elevated railroad in New York city, to decide upon routes and plans and specifications, and to organize' a corporation to carry out the project in the event of the failure of plaintiff’s predecessor, organized by virtue of chapter 885 of the Laws of 1872, so to do. Held, that upon the approval by the' rapid transit commission of the completed structures the rights of plaintiff’s predecessor were determined and limited by the specifications which it had accepted, and in the absence of legislative authority the construction and the maintenance of bridges and platforms, except those built with the approval of the commission prior to the completion of the road, were unauthorized and illegal and not necessary to the proper operation of plaintiff’s road, as the court may not construe the word “ necessary ” so as to mean that every structure which is to the advantage and convenience of the traveling public is a lawful use of plaintiff’s franchise.</p> <p>The said statute of 1872 (section 3) provides that the rapid transit commission shall not designate and establish any line of the railway on any or either of the street's between the easterly line of Third avenue and the easterly line of Sixth avenue. Held, that with the exception of the part approved by the said commission, a station platform at the northeast comer of Eighteenth street and Sixth avenue extending for some distance beyond the easterly line of said avenue was illegal.</p>

<p>Action to have two assignments of dower adjudged to have been given as collateral for certain loans, since paid, surrendered up and canceled.</p>

<p>Bankruptcy — trustee in—composition with creditors — negotiable instruments.</p> <p>Where notes given by a trastee in bankruptcy pursuant to an order confirming a composition with creditors are not paid, the original debt revives.</p> <p>Where, pursuant to an order confirming a composition with creditors of forty cents on a dollar, a creditor who did not ■consent in writing to the composition received from the trustee in bankruptcy a cheek which he cashed and also three notes representing twenty per cent of the terms of the composition, which notes were duly protested for nonpayment after presentment, the creditor is entitled to recover from the bankrupt the balance of his account at the time he filed his petition in bankruptcy after giving credit for the cash received on the check.</p>

<p>Pleading — allegations contained in complaint in action to recover for services — where complaint states no cause of action against administrator in his representative capacity.</p> <p>The complaint in an action by an undertaker to recover for services and materials furnished in connection with the burial of a decedent, which contains no allegation from which the court can find or infer that plaintiff was under any obligation to bury decedent, states no cause of action against the administrator of her estate in his representative capacity.</p>

<p>Promise — performance of mutual — stockbrokers — when plaintiff entitled to recover.</p> <p>Defendant, on his request, having received a tip from plaintiff on a certain stock, promised to act on it and to carry for plaintiff 100 shares of the stock at a point loss and did purchase 300 shares and held them until further advised by plaintiff and on selling made a profit of $296 on 100 shares. Held, that upon the performance of the mutual promises of the parties a mutuality of obligation arose which constituted, a sufficient consideration to uphold defendant’s original promise and plaintiff was entitled to recover the $296.</p>

<p>Appeal — to Appellate Term of Supreme Court — when dismissed — stipulation.</p> <p>Where respondent on an appeal to the Appellate Term o£ the Supreme Court is willing to afford the appellant all the relief that he would be entitled to after a hearing of the appeal, all issues being solely issues of fact, the appeal will be dismissed on respondent’s motion unless the appellant stipulates to set aside the verdict and for a new trial, the respondent having filed such a stipulation.</p>

<p>Return — of transcript of minutes — appeal — Municipal Court Code, § 161.</p> <p>■Where after search the “ original ” transcript of the minutes o'f a trial cannot be located and so cannot be filed as a part of the return on appeal as required by section 161 of the Municipal Court Code, the return may be completed by the insertion therein by the clerk of the court below of the transcript of the minutes offered by the appellant.</p>

Appeal by defendant from order denying its motion to set aside its default taken at trial term, City Court of the city of New York.

<p>Appeal from a judgment of the City Court of the city of New York dismissing the complaint upon the merits at the close of the plaintiff’s case.</p>

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

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

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

<p>Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, ninth district, entered upon the dismissal of plaintiff’s complaint after a trial before the court without a jury.</p>

Appeal by the defendant Diamond Coat Front and .Pad Company, from a judgment of the City Court of the city of New York for the sum of $500 and costs, after a trial before the court and a jury, and from an order denying appellant’s motion to set aside the judgment and for a new trial.

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

Appeal by plaintiff from a judgment of the Municipal Court, borough of Manhattan, second district, dismissing the complaint but not on the merits.

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

Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Bronx, second district, for $172.72, entered after a trial before the court without a jury.

Appeal by the City of New York from a judgment of the Municipal Court of the city of New York, borough of Manhattan, eighth district, for $300 and costs, entered in favor of plaintiff after a trial before the court without a jury.

<p>Appeal by plaintiff from a judgment of the City Court of the city of New York entered on a directed verdict.</p>

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

<p>Appeal from a judgment of the Municipal 'Court of the city of New York, borough of Manhattan, ninth district, dismissing the complaint at the close of the plaintiff’s case.</p>

<p>Attachment — undertaking on — motion to vacate — appeal — judgments — jurisdiction.</p> <p>Where an attachment, granted in an action in which judgment by default was entered under the old Municipal Court Act, has performed its full function, the Appellate Term of the Supreme Court has no jurisdiction of an appeal from so much of an order as imposes as a condition to granting a motion to vacate the attachment and judgment that defendant deposit the amount of said judgment or file a surety company undertaking to secure the same, the Municipal Court Code declaring that it shall not be retroactive.</p>

Appeal by the tenant from a final order of the Municipal Court of the city of New York, borough of Manhattan, first district, awarding the possession of the premises to the landlord.

Appeal by the plaintiff from, an order of the Municipal Court of the city of New York, borough of Manhattan, fourth district, granting defendant’s motion to open, vacate and set aside the judgment taken against this defendant by default.

Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, seventh district, rendered in favor of the plaintiffs for $333.06.

Appeal by the defendant from a judgment of the City Court of the city of New Tork entered upon a directed verdict and from an order denying defend; ant’s motion to set aside the verdict arid for a new trial.

<p>Negotiable instruments—holder of check in due course — stockbrokers —■ trial—bills, notes and, checks — Negotiable Instruments Law, § 35-</p> <p>A stock brokerage firm drew its cheek to the order of plaintiff, a trust company, and gave it to one of its clerks who, in accordance with instructions, took it to defendant bank for certification to be used for the purchase of revenue stamps for plaintiff, handed it to the person at defendant bank whose duty it was to certify checks, and upon inquiry therefor, after waiting some time, it appeared that the check after certification had been taken by or erroneously handed to a third person, whereupon the clerk of the brokerage firm hurried to plaintiff’s place of business, but the person who had wrongfully taken the check from defendant had already used it for the purchase of revenue stamps from plaintiff and in order so to do the purchaser was obliged to sign a requisition and he also delivered to plaintiff a forged requisition for the stamps purporting to have been signed by the brokerage firm. In an action to recover the amount of the certified check the- jury upon the only question submitted to them, to wit, whether plaintiff in accepting" the cheek acted in good faith or in bad faith, found that plaintiff had acted in bad faith, and the trial justice dismissed the complaint on the merits not only because the verdict was justified but also because he found as matter of law that the check had never been duly negotiated and that plaintiff was not a holder thereof in due course within the meaning of section 35 of the Negotiable Instruments Law. Held, that the judgment should be affirmed.</p>

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

Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, first district, rendered in favor of the defendant, by the court without a jury, dismissing, the complaint on the merits.

Appeal by the landlord from a final order of the Municipal Court of the city of New York, borough of Brooklyn, third district, made September 13, 1916, dismissing a summary proceeding for the possession of real property after a trial by the- court without a jury upon the ground that the petitioner had failed to prove his case.

Appeal by plaintiff from a judgment of the Municipal Court of the city of Few York, borough of Brooklyn, third district, rendered June 28, 1916, in favor of defendants, dismissing the complaint on the merits, with fifteen dollars costs and disbursements, after a trial by the court without a jury.