Volume 98 — New York Miscellaneous Reports

<p>Action to restrain the violation of a restrictive covenant.</p>

<p>Motion to strike findings from the record.</p>

<p>Public Service Commissions Law, § 49 — refusal to give transfer — distinction between “ failure ” and “ refusal ” to comply with statute.</p> <p>Plaintiff in an action to recover a statutory penalty must bring his cause clearly within the statute.</p> <p>Plaintiff boarded one of defendant’s cars in the city of Buffalo and asked for and received a transfer to Which he was entitled. Through inadvertence and mistake the transfer was punched ten o’clock instead of eleven o’clock, and, when plaintiff presented it to the receiving conductor on the line to which he transferred, his transfer was declined and plaintiff was compelled to pay an additional fare to complete his journey. Held, that in an action to recover a penalty under section 49(7) of the Public Service Commissions Law, the evidence clearly showing that defendant was endeavoring in good faith, under considerable difficulties, to comply with the statute, the conductor giving the transfers having issued between nine fifty-eight and eleven o’clock seventy-three transfers including that' to the plaintiff, the fact that defendant failed so to do did not amount to a “ refusal ” under the circumstances, and a judgment in favor of plaintiff must be reversed, and the facts being undisputed the complaint should be dismissed.</p>

<p>Actions — for personal injuries — Statute of Limitations — Federal Employers’ Liability Act — Employers’ Liability Act of State of New York — negligence — damages — verdict — appeal.</p> <p>The Federal Employers’ Liability Act does not create a new or different cause of action for personal injuries to an employee but simply abolishes the fellow servant rule and modifies the common law as to contributory negligence and in other matters. The right of action as it existed at common law is not affected by said statute.</p> <p>The two-year limitation was not put into said statute for the purpose of limiting the right to sue on the cause of action itself but simply for the purpose of limiting the time within which, after an injury, an employee injured in interstate commerce could take advantage of the provisions of said statute by bringing his action thereunder by allegation and proof that both he and his employer were engaged in interstate commerce at the time of the injury.</p> <p>In June, 1909, plaintiff brought an action in due time under the Employers’ Liability Act of the state of New York to recover for personal injuries sustained by him in the month of October, 1908, while in the employ of defendant as a locomotive engineer. The Federal Employers’ Liability Act became a law in April, 1908. Through no fault of plaintiff three verdicts in his favor were set aside without a decision anywhere conflicting with his ultimate right to recover and the judgment entered on the last verdict was reversed by the Court of Appeals and a new trial ordered in an opinion sustaining plaintiff’s contention as to negligence and contributory negligence and basing the reversal on an error of the trial court in passing upon a request to charge made by defendant. Held, that a motion thereafter made for leave to serve an amended complaint setting up that at the time of the accident he was engaged in interstate commerce and increasing his demand for damages from $30,000 to $50,000 should be granted, the date of issue to remain unchanged.</p>

<p>Principal and agent — agency—principal bound by action of agent — what constitutes payment — Negotiable Instruments Law, § T48.</p> <p>While discretionary action by an agent appointed to collect principal of a trust estate may not be delegated, yet, where his principal accepts money collected through the action of the agent in attempting to delegate his power, he is bound by such ratification.</p> <p>Where an agent appointed to collect rents, interest and the principal of mortgages, so acts for a time, the mortgagors are justified in their payments to him of interest and principal.</p> <p>Such an agent, however, may not accept payment in anything other than money, and the delivery to him of a cheek or other substitute for money does not constitute a payment and only becomes so when accepted as such and in due course actually paid.</p> <p>The words “ when accepted as such and in due course actually paid ” must be construed, as declared in section 148 of the Negotiable Instruments Law, to be a payment where it is made at or after maturity of the instrument to the holder thereof in good faith and without notice that his title is defective.</p> <p>Where checks of mortgagors for interest and principal were drawn not to the mortgagee or to an agent to collect as such but to him as an individual and he ’ converts the proceeds to his own use there was no payment.</p>

<p>Motion to dismiss complaint.</p>

<p>Motion for new trial upon verdict for the defendant.</p>

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

<p>Interpleader — order of — when not granted — actions — Code Civ. Pro. §§ 820, 2680.</p> <p>An interpleader will not be granted under section 820 of the Code of Civil Procedure to bring in general creditors on motion of executors in an action brought against them to establish a claim against the estate where the general creditors notify the executors that they dispute the claim, since under section 2680 of the Code of Civil Procedure neither the estate nor the executors are liable to any hazard, damage or loss if the action is prosecuted in good faith and without negligence.</p>

<p>Judgments — when vacated, set aside, and corrected — Code Civ. Pro. §§ 723, 724.</p> <p>A decision and judgment of the court may be vacated, set aside and corrected under sections 723 and 724 of the Code of Civil Procedure where the relief granted by the decision and judgment exceeds the issue which was tried by the court.</p>

<p>Verdict — jury —when verdict set aside — actions — wills — evidence — trial —■ Code Civ. Pro. § 2653a.</p> <p>Where two or more propositions are submitted to a jury in one question and the verdict is general, it will be set aside if the evidence is insufficient as to either of the questions, or if error is committed in connection with the submission of either question, as in such ease it is impossible to determine on which of the questions submitted the jury base ■ their verdict.</p> <p>In an action brought under section 2653a of the Code of Civil Procedure to determine the validity of a last will and testament which had been duly probated, plaintiff confined his proof solely to the question of testamentary capacity and then rested. The questions of testamentary capacity, whether testatrix at the time of the execution of the paper declared it to be • 'her will and testament and whether or not she requested the subscribing witnesses to sign it as such, were not specifically and separately submitted to the jury, but the court, in sub- , t mitting the general question “Is the paper writing produced the last will and testament of the testatrix ” said “ Your answer to that question will be yes or no. If * * * it was not executed in the manner required by law, then your answer will be no. -If the testatrix did not possess sufficient . mental .capacity then your 'answer will be no. If, on the .other hand, you find it was executed in the manner required by law, and that the deceased possessed sufficient mental capacity, within the rule that has been stated, then your answer will be yes to this question.” The verdict of the jury in the -form of an answer to the question submitted 'was “No.” Meld, that had the several questions been submitted separately Jhe verdict would not be disturbed if the finding was warranted as to either one of the questions.</p> <p>That as under the undisputed evidence it must be held as matter of law that the testatrix had declared the instrument to be her last will and testament, and had requested the subscribing witnesses to sign it as such] it was error to submit to the jury the questions of the publication and request to the witnesses as questions of fact, and the verdict should be set aside and a new trial granted.</p>

<p>Motion for a non-suit.</p>

<p>Motion by defendant for nonsuit.</p>

<p>Motion for an order setting aside an order of discontinuance.</p>

<p>Liquor Tax Law — rights of owner of liquor tax certificate — lease — landlord and tenant — right of abandonment and transfer — injunctions.</p> <p>The right of abandonment and transfer of a liquor tax certificate to other premises belongs to 'the owner and holder of the certificate and not to the person in possession of the premises either as owner or as lessee.</p> <p>While a liquor tax certificate remains in full force and effect the provision of the statute giving the holder the right of abandonment and transfer cannot be rendered nugatory by the issuance of a second certificate for the same premises.</p> <p>Where a lease has terminated, the tenant as holder of a liquor tax certificate may bring an action in equity to enforce his right of abandonment and transfer as against one to whom a second liquor tax certificate for the same premises -has been issued on the theory that the issuing officer has no right to refuse to issue a certificate when the application therefor is in due form, and pending the action, which seeks a cancellaation of the second certificate, plaintiff may be.granted an injunction restraining the traffic in liquors thereunder,</p>

<p>Injunction — pendente lite — when injunction not granted — restraining moving picture show on Sunday.</p> <p>An injunction pendente lite will not be granted in an action brought to restrain defendant from conducting a moving picture show on Sunday.</p>

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

<p>Action in partition.</p>

<p>Action to determine the title to real estate. .</p>

<p>Bequests — proceeding to determine to whom bequest belongs — religious corporations — Code Civ. Pro. § 2740.</p> <p>Section 2740 of the Code of Civil Procedure under which a proceeding may be brought to determine to whom a bequest belongs only applies to unknown owners.</p> <p>The “ Hoosac School ” is a corporation which for twelve years past has had the control and management of the church edifice of the “All Saints Church of Hoosiek,” an unincorporated association, and “ The Trustees of the Sustentation Fund of the Reformed Episcopal Church of America ” is the corporation in whose name corporate acts are done and corporate property held of such church. Reid, that a bequest to said “All Saints Church,” under the will of a testator who had been a member thereof and knew of its purposes and uses in connection with the religious education of the youth attending the Hoosac School of which he was a director, was not intended as a gift to either corporation.</p> <p>That taking into consideration the want of interest on the part of the state which by its attorney-general claims that said bequest is invalid, and the desirability of carrying out the intention of the testator, the gift would be held valid as a trust for a religious purpose, and the “Hoosac School” being more interested in carrying on the “All Saints Church” than any otJier perpetuity, it will be named as trustee.</p>

<p>Mortgages — foreclosure of — deeds — negotiable instruments — who is bona fide purchaser — action to remove cloud on title — pleading — power, of attorney — judgments.</p> <p>Plaintiff’s son, pursuant to a power of attorney given by her to him, conveyed certain real estate by a deed which recited the consideration of ten dollars and other good and valuable considerations. Later, and on the same day that plaintiff’s son gave his promissory note for $1,000 indorsed by the payee, the defendant herein and another, the grantee under said deed, made and delivered to defendant a mortgage upon the property which recited that the" mortgagor was justly indebted to the mortgagee in the sum of $1,000, secured to be paid by the accompanying bond and evidenced by said note which he had not signed. The note was protested for non-payment, the mortgage was .foreclosed and the property sold to defendant. In an action to remove a cloud upon the title of plaintiff constituted by the deed, the mortgage and sale thereunder, defendant by his answer claimed to be a bona fide purchaser for value, without notice; and that he was protected by the record of said deed.</p> <p>Held, that the fact that defendant had paid a valuable consideration for the mortgage did not alone make him a bona fide purchaser.</p> <p>That the. fact that the note, which explained what the mortgage was given to secure, did not bear the signature of the mortgagor was sufficient to put the defendant upon inquiry as to the actual ownership of the property.</p> <p>The fact that at the making of the mortgage, two years after the execution of the power of attorney, plaintiff remained in possession of the property and continued in such possession and occupation by herself or tenants, until the year in which the foreclosure suit was begun, constituted notice to the mortgagee of plaintiff’s adverse claim to the title under which the mortgage was taken.</p> <p>The fact that the mortgagor was surety only for the payment of the note and it not being pleaded in the foreclosure proceedings that he consented to renewals of the note which constituted an extension of the time of payment, his failure to defend the action upon such ground was evidence that the transaction between plaintiff’s son and his grantee was that of a mortgage by the former, and the power to mortgage did not exist in the power of attorney pursuant to which the deed was given.</p> <p>That under all the circumstances the transaction resulting in the making of the note and the taking of the mortgage upon the part of defendant failed to sustain his claim that he was a bona fide purchaser and that plaintiff was entitled to judgment setting aside and cancelling the deed to the property, the mortgage to defendant and the judgment of foreclosure thereon and the deed, if any, thereupon made.</p>

<p>Condemnation proceedings — objection to confirmation of report of commissioners in street opening proceeding—when assessment erroneous— constitutional law — Greater New York Charter, § 992.</p> <p>Where the difference in the figures showing the rate of an assessment per lineal frontage is less than five cents on two parcels of land the unintentional error is not ground for objection to the confirmation of the report of the commissioners in a street opening proceeding particularly where it is evident that it was the intention to assess both parcels at the same rate.</p> <p>Assessments for benefit must be levied in proportion to the benefit received by the. respective parcels, and, where it is apparent that one parcel which is made a comer plot available for building purposes already had access to an open street and was little benefited by the opening of one of the new streets as compared to the benefit to the other parcel which had no access to any street until the new streets were opened, the assessment of both parcels at the same rate is practically erroneous.</p> <p>If the corner plot did not front on an open street which ha,d already been legally opened there might be some justification for the assessment, but where it does face on such the assessment cannot be sustained.</p> <p>To impose an equal rate of assessment upon properties which are not equally benefited violates the law and cannot be upheld.</p> <p>Section 992 of the Greater New York charter is constitutional.</p>

<p>Guaranty — of payment for goods sold and delivered to third person — partnership — evidence — pleading — actions — appeal.</p> <p>A partnership may recover on a guaranty of payment for goods sold and delivered to a third person, given to one member of the firm, if there is evidence that the guaranty was for its benefit.</p> <p>Where, in an action by a copartnership upon defendant’s written guaranty of payment for goods sold and delivered to a company of which he was the president, there is testimony from which the jury could have legitimately inferred and found that defendant knew, when he told the bookkeeper of the company to send the guaranty to a member of the plaintiff firm, that it was for the benefit of the partnership which had previously sold goods to the company, and it further appears that when the one to whom the guaranty was sent called upon defendant with reference thereto he told him that “ we ” would not sell the company more merchandise unless defendant would personally guarantee the payment, it was error to dismiss the complaint on the ground that plaintiff was not entitled to recover on the guaranty.</p> <p>But where the complaint merely alleged the giving of the guaranty to the individual member of the firm, a sale of goods by him and an assignment of his cause of action, and he unqualifiedly testifies that the goods were sold and delivered by the'firm, plaintiffs are not entitled to recover, and the judgment will be reversed, but without prejudice to the right of plaintiffs to institute an independent action upon the guaranty.</p> <p>Bijtjr, J., dissents.</p> <p>Where as to a second cause of action alleged in the complaint and based upon defendant’s alleged oral promise to pay there is a disputed question of fact, the verdict of the jury in favor of plaintiffs will not be disturbed.</p>

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

<p>Contracts —1 of employment — performance — actions — damages — evidence — pleading — trial.</p> <p>A written contract of employment of plaintiff as traveling salesman for defendant, commencing May 18,1914, and ending December 31, 1914, provided for the payment of plaintiff’s wages in advance and required repayment by him of any excess of payments to him on his drawing account over the amount of commissions earned. The contract was verbally renewed January 4, 1915, and plaintiff performed his part thereof until May 18, 1915, when without cause he was discharged. In an action to recover, as damages, the sum of fifty dollars a week drawing account for the unexpired term of the contract up to December 31, 1915, plaintiff, the only witness called, testified to the contract, to his performance of its provisions, to the sale of goods, to the payments made and to the amount of his drawing account still unpaid, and rested. Held, that a dismissal of the complaint for failure to make out a case on the ground that plaintiff was required to prove what-commissions he had earned, or facts which would' form a legal basis upon which the amount of his future commissions might be reasonably estimated, was error for which the judgment entered on the dismissal of the complaint will be reversed, and a new trial ordered.</p>

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

<p>Appeal by plaintiff from an order of the City Court of the city of New York setting aside the verdict of a jury in favor of the plaintiff and granting a new trial.</p>

<p>Assignment — of lease as collateral security for payment of chattel mortgage — landlord and tenant — evidence — trial.</p> <p>Where a tenant, as collateral security for the payment of a mortgage upon certain fixtures in the leased premises, assigns the lease to the mortgagee, who lawfully enters into the premises by virtue of the assignment, the assignee after entry has a legal right to the possession during the term of the lease subject only to the right of the original tenant to redeem.</p> <p>In such ease, the assignee’s possession of the premises is neither that of a trespasser nor a subtenant, and so far as the landlord is concerned the assignee is in lawful possession of the estate of his assignor, the original tenant, by virtue of the assignment, and by his own acts a privity of estate between him and the landlord is created, and so long as it continues he is liable for the rent of the premises until he divests himself of his estate by an assignment of his interest in the lease to a third party.</p> <p>The judgment in an action for rent against defendant as assignee of the lease reversed and a new trial ordered, on the ground that he had broken the privity of estate by assigning his interest in the premises to a third party, though the jury had found upon insufficient evidence that the assignment was only colorable and that defendant still maintained control and possession of the premises.</p> <p>. Whitaker, J., dissents.</p>

Appeal by plaintiff from judgment of the Municipal court of the city of New York, borough of Manhattan, ninth district, dismissing complaint.

<p>Appeal by the plaintiff from a judgment of the Muncipal Court of the city of New York, borough of Manhattan, first district, dismissing the complaint at the close of the plaintiff’s case,</p>

<p>Evidence — when judgment against weight of — admission of evidence — on trial of action to recover for loss of profits — contracts — trial.</p> <p>On the trial of an action to recover for loss of profits caused by the alleged breach of a contract to engage plaintiff, a corporation, to install an electric system in a building being erected for defendant, another corporation, its president testified that in a letter in which defendant abrogated the transaction, and to avoid litigation, a check for fifty dollars was inclosed “ for your trouble in connection with the estimating etc.,” that the check was returned and that subsequently defendant sent a third party to plaintiff to attempt to settle its claim. It was undisputed that plaintiff delivered materials and that its workmen did some work but whether this was done under the specifications was disputed. The main question in the case, tried without a jury, was whether the contract was ever made. Held, upon reversing a judgment in favor of defendant, that, though the question whether plaintiff’s bid had ever been accepted was one of fact, a finding that the bid had not been accepted was against the weight of evidence.</p> <p>When the letter, which was material, was first offered in evidence it was excluded, and plaintiff duly excepted, and the letter was marked for identification, and when later it was admitted in evidence on plaintiff’s offer defendant excepted and the court immediately struck it out. Held, that the letter should not have been excluded though no objection and exception was taken by plaintiff.</p>

<p>Actions — to recover penalty — corporations — insufficient evidence to prove plaintiff a stockholder — Municipal Court of city of New York—■ Stock Corporation Law, § 69.</p> <p>In order to maintain an action to recover a penalty under section 69 of the Stock Corporation Law plaintiff must prove that defendant was the “ treasurer or chief fiscal officer ” of a corporation other than a moneyed corporation at the time he made his demand for a statement of its assets and liabilities.</p> <p>The stock-book of a corporation which contains the names', of the stockholders and in which all transfers of stock are required to be entered is ordinarily, at least, the treasurer’s guide and authority in furnishing statements pursuant to section 69 of the Stock Corporation Law, and a stockholder of a corporation other than a moneyed one who wishes to enforce the penalty prescribed by said section for failure to comply therewith must see to it that he is a stockholder of record at the time he makes a demand upon its treasurer or chief fiscal officer for a statement of the affairs of the'corporation.</p> <p>Where in such an action a statement in plaintiff’s demand to the effect that he was a stockholder of the corporation owning more than five per cent of the capital stock is negatived by a declaration, at the end of the demand, that he held a numbered certificate for a certain number of shares standing in the name of another, the evidence is insufficient to prove that plaintiff was a stockholder as it was not apparent whether he was the pledgee or absolute owner of said stock.</p> <p>Such an action was begun in the Municipal Court of the city of New York by the service of a summons on which was indorsed “Action for a penalty according to the provisions of Laws of 1909, being chapter LIX of the Consolidated Laws and known as the Stock Corporation Law,” but no formal complaint was filed and the answer was a general denial. There was no competent evidence that defendant was the ‘ ‘ treasurer or chief fiscal officer ” of a corporation other than a moneyed corporation and plaintiff failed to prove that at the time he made his demand for a statement of the assets and liabilities of the corporation he was a stockholder thereof and there was absolutely no proof that a financial statement of the affairs of the corporation had not been given within one year. Held, that a judgment in favor of plaintiff should be reversed and the complaint dismissed on the merits, with costs.</p>

<p>Jurisdiction — territorial — of local inferior courts — limitations — actions — corporations — Municipal Court of city of New York — constitutional law — Municipal Court Code.</p> <p>When the legislature created the city of Greater New York it had a right to consolidate into a court with jurisdiction conterminous with the boundaries of the new city the local courts existing in the various sections of the city and to confer on the consolidated court the same jurisdiction which had been possessed by any of the former courts or to confer new jurisdiction subject to two limitations: First, it could not be given power to act beyond the boundaries of an established political subdivision of the state; second, it could not be given jurisdiction greater than the County Court had over defendants properly brought into those courts. The legislature, however, was not bound to confine the jurisdiction of the local inferior courts to actions against residents of counties or even to residents of some other political subdivision of the state so long as jurisdiction of the persons could be obtained within the territorial jurisdiction of the court.</p> <p>Although prior to the enactment of the Municipal Court Code an action against a foreign corporation was maintainable only where it had an office in the city of New York the provision of said Code which authorizes such an action without imposing such a limitation is not unconstitutional on the ground that it confers upon the Municipal Court of the city of New York, which is a continuation and consolidation of the old District Courts, greater jurisdiction than is conferred on County Courts, in contravention of section 18 of article VI of the Constitution of the State.</p>

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

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

<p>Appeal from judgments of the Municipal Court of the city of New York, borough of Manhattan, sixth district, entered upon verdicts in actions, one brought to recover damages for personal injuries, and the other for loss of wife’s servicés, tried before the court and a jury.</p>

Appeal by plaintiff from a judgment of the City Court of the city of New York, entered on a counterclaim in favor of defendant for the sum of $1,260, together with costs, after a trial before the court and a jury.

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

<p>Insurance (life)—policy of — what constitutes entire contract between the parties — admissibility of evidence — pleading — when judgment reversed.</p> <p>A policy of life insurance declared that it and the application therefor, signed by the insured and attached to the policy, as required by statute, should constitute the entire contract between the parties, and copies of the application, including the medical examination of the insured, were delivered with the policy by the insurer’s agent or examiner who said nothing to mislead the applicant or to prevent her from examining the application when the policy was delivered.</p> <p>In an action brought by the beneficiary of the policy the answer pleaded as a defense that the insured made false and fraudulent answers to material questions contained in her application. Held, that testimony, denied by defendant, but tending to show that though the insured correctly answered said questions the defendant’s medical examiner entered wrong answers on the blank and that the insured signed the application without reading it, was admissible, but was no answer to the defense of fraud pleaded, and a judgment entered on the verdict in favor of plaintiff will be reversed and the complaint dismissed upon the merits.</p>

<p>Appeal by defendant from a judgment of the "Municipal Court of the city of New York, borough of Manhattan, first district, in favor of plaintiff after a trial by a judge without a jury.</p>

<p>Motion for re-argument of an appeal from an order of the Municipal Court of the city of New York, borough of Manhattan, third district.</p>

<p>Pleading — motion for judgment on the — aUegations of complaint — actions — motions and orders —■ demurrer — Code Civ. Pro. § 547.</p> <p>Where an answer denies the allegations of the complaint defendant, under section 547 of the Code of Civil Procedure and in advance of the trial, has the right to move for judgment on the pleadings on the ground that the complaint fails to state a cause of action against him.</p> <p>A motion under section 547 of the' Code of Civil Procedure for judgment on the pleadings is analogous to a motion at the opening of the trial or upon demurrer, and, in determining whether a cause of action is set forth, the complaint is to be liberally construed and its material allegations must be deemed to be true.</p> <p>Upon a motion under section 547 of the Code of Civil Procedure for judgment on the pleadings they only may be considered, and, as the verification is no part of a pleading, greater weight may not be given to r. .rifled answer than to an unverified complaint.</p>

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

<p>Action for causing death by negligence.</p> <p>Demurrer by the defendant Morris Park Estates to the complaint on the ground that it does not state facts sufficient to constitute a cause of action.</p>

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

<p>Action to foreclose lien created by the Lien Law.</p>

<p>Corporations — organization of — liability of directors — action by judgment creditor against domestic corporation for an accounting — Stock Corporation Law, § 29 — General Corporation Law, §§ 90, 91, 91a.</p> <p>In an action by a judgment creditor of a domestic corporation for an accounting by the individual defendants of their acts as directors of the corporation it appeared that other than plaintiff it had no creditor except one of the defendants who made a claim for balance due on salary, and that he, a stockholder of the corporation, with' the knowledge and consent of its board of directors, himself and wife, borrowed $5,000 of the corporation on his note, no part of which had been paid. Held, that the facts brought the case within section. 29 of the Stock Corporation Law, which provides that no loan of money shall be made by any stock corporation except a money corporation, or by any officer thereof out of its funds, to any stockholder therein, and that in ease of violation of such provision the officers and directors assenting thereto shall be jointly and severally liable, to the extent of such loan,- with interest, for all the debts of the corporation contracted before the repayment of the loan, and that plaintiff was entitled to recover as against the individual defendants the amount of the loan, with interest.</p> <p>The corporation having been organized, as. stated in its certificate of incorporation, to engage in and carry on the business of importing, buying and selling 'laces and, generally, to carry on any other business, whether manufacturing or otherwise, which might seem to the company capable of being carried on in connection therewith, had no right to purchase stocks and cotton on margin, and the individual defendants, as the only directors and stockholders of the corporation, could not lawfully, as against creditors, authorize themselves, or either of them, acting for the corporation, to use its funds in such speculations, without subjecting themselves to the risk, in the event of loss, of accountability to judgment creditors, under sections 90, 91, 91a of the General Corporation Law, for losing or wasting the property of the corporation.</p> <p>The plaintiff in selling laces and nets to the corporation had the right to expect that its funds would be expended in furtherance of the prosecution of the lace business of the defendant or of some other business of similar character.</p>

<p>Statute of Frauds — when agreement unenforcible under — action to foreclose mortgage upon real estate — pleading — contracts — specific performance — fraud.</p> <p>Estoppel—when defendants not entitled to invoke doctrine of equitable — payment — contracts — motions and orders.</p> <p>In an action to foreclose a mortgage upon real estate the answer besides a general denial set up as affirmative defenses, that by agreement of the parties payment of the bond and mortgage in suit was extended until February, 1921, and that the action was prematurely brought; that because of part perform anee of said agreement it would be inequitable to grant the relief sought by plaintiff. To a counterclaim asking for a decree of speeifie performance directing plaintiff to comply with the terms of said agreement, a reply was served which not only denied the allegations of the affirmative defenses and of the counterclaim but pleaded, in connection with such denials, the Statute of Frauds, claiming that said agreement was not in writing and by its terms was not to be performed within a year. Upon overruling a demurrer to the paragraphs of the reply which pleaded the Statute of Frauds, held;</p> <p>That it was apparent that the pleader did not intend to set up the matter contained in said paragraphs as a separate defense but as an integral part of a single defense and that plaintiff, in coupling the Statute of Frauds with the denial of the reply, had pursued the safe and proper method of pleading.</p> <p>That by the demurrer, the allegations of the reply, that the agreement was not in writing and was not to be performed within a year from the making thereof, were admitted.</p> <p>The answer alleged that it was agreed between the parties to the action that in consideration of defendants’ assuming the payment of $4,000, to he paid to plaintiff in installments semi-annually, at the time of the payment of the interest on the mortgage, plaintiff would upon such payment extend the time of payment of the balance due on the mortgage to February 16, 1921. Held, that the agreement was clearly executory, and as it would take four years to make the payments required to obtain the extension agreed upon the agreement was unenforcible under the Statute of Frauds.</p> <p>An oral contract void under the Statute of Frauds because by its terms not" to be performed within one year from the malting thereof is not validated by part performance.</p> <p>The mere refusal to perform an oral contract void under the Statute of Frauds is in no sense a fraud either in law or in equity.</p> <p>Payments made by defendants pursuant to the terms of the oral agreement and retained by plaintiff did not entitle defendants to invoke the doctrine of equitable estoppel and ask for a decree of specific performance of the oral agreement.</p> <p>The issue having been brought on and tried as a contested motion, the proper practice upon overruling the demurrer is to enter an order.</p>

<p>New trial — motion for, when granted — trial — motions and orders — costs — negligence—Greater New York charter, § 816 et seq.</p> <p>In an action to recover for personal injuries it appeared that some longshoremen were seated on a large heavy skid stored in a part of a public street, so loaded on a hand truck as to make a “ see-saw,” and tliat upon being summoned to work on defendant’s pier, in the city of New York, alongside of which an in-coming steamer was to be moved for discharging and receiving cargo, they rose from the skid with the result that one end of it fell upon plaintiff’s foot as he, with other longshoremen, was waiting in what was alleged to be the public highway expecting to be called to work in unloading another vessel at the same pier. The case was submitted to the jury ■upon the theory that defendant by storing or keeping the skid in such place was maintaining a public nuisance, and though the issue as to the legal status of the highway or place where the accident happened was clearly tendered by the pleadings, section 816 et seq. of the Greater New York charter, relating to the spervision and control of the marginal way or exterior along the water front of the city, were neither read nor explained to the jury or submitted to the court. Held, that in the interests of justice,.defendant’s motion for a new trial after a verdict in plaintiff’s favor should be granted, but only on condition of the payment to plaintiff of costs after notice and before trial, the trial fee and disbursements, besides the costs óf 'the motion for a new trial.</p> <p>Neither a variation in the pavement nor the fact that the so-called “marginal way” where the accident happened was . cleaned by employees of the city dock department in any, way limits the public character of said space, nor does the failure of the dock department officials to object to a skid being stored in such place, if otherwise illegal, justify its continuance or legalize it.</p>

<p>Estoppel — equitable — husband and wife — divorce — dower — deeds.</p> <p>It is not necessary to an equitable estoppel that the parties should design to mislead, but it is sufficient if the act is calculated to mislead and actually has misled another acting upon it in good faith and exercising reasonable care and diligence under all the circumstances.</p> <p>After plaintiff and her husband had separated in consequence of a “rabbinical divorce” each remarried with the full knowledge and acquiescence of the other and in the» honest though mistaken belief that they were divorced and free to marry. Held, that plaintiff who lived with her so-called second husband and under his name for over twenty years must be deemed a party to the creation of a situation into which, without her participation, her first husband would not have entered, and she is equitably estopped from asserting a claim of dower in real estate purchased by him after their separation and conveyed by the joint deed of himself and the woman he had assumed to marry and represented to be his wife.</p>

<p>Mandamus — who may apply for a writ of — what is the proper remedy to have determined the legality of a special election for sheriff — what does not prevent the issuance of the writ.</p> <p>Election Law, § 292 — provisions of, relating to vacancies in any office occurring before October fifteenth of any year — when special election may be called.</p> <p>Public Officers Law — conflict between it and County Law must be resolved in favor of latter.</p> <p>County Law, § 180(2) —. authorization by the governor to appoint a sheriff when vacancy occurs in the office — constitutional law — Election Law.</p> <p>Constitutional law — provision of Constitution in relation to the election of sheriff to fill a vacancy — special elections — when provisions of Constitution and statutes are not nullified by a special election to fill a vacancy.</p> <p>A citizen of the state who is a resident of the particular county has such an interest as entitles him to apply for a writ of mandamus, the proper and only available remedy, to have determined the legality of a special election for sheriff, as directed by the governor of the state, on the claim that there is no legal authority for the holding of such an election.</p> <p>Mandamus being the proper and only remedy available, the fact that it seeks to prevent the doing of a ministerial act and not to compel its performance does not prevent the .issuance of the writ.</p> <p>Under section 292 of the Election Law, which provides that upon a vacancy occurring before October fifteenth of any year in any office authorized to be filled at the next general election unless, etc., or that upon the death of a person elected to office before the commencement of his official term, or upon the occurrence of a vacancy in any elective office which cannot be filled by appointment for a period extending to or beyond the next general election, the governor may in his discretion make proclamation of a special .election to fill such office, the gov-</p> <p>ernor may call a special election to" fill a vacancy caused by the death of a sheriff after October 15, 1916, only in case he is without authority to fill the vacancy by an appointment which would hold until the end of the year 1917.</p> <p>The provisions of the Public Officers Law are general, while those of the County Law are special, and any conflict between them must be resolved in favor of the County Law.</p> <p>Section 180(2) of the County Law, which authorizes the governor to appoint a sheriff when a vacancy occurs in the office and provides that the person so appointed shall hold the office until and including the last day of December succeeding the first annual election thereafter at which such vacancy can be lawfully filled, is a reasonable exercise of the constitutional authority (State Const, art. X, §§ 4, 5) to prescribe the time of electing sheriffs and to provide for filling vacancies, and unless said section violates some constitutional provision it is controlling over section 38 of the Public Officers Law which provides that the term of one appointed to fill a vacancy in an elective office shall be until the commencement of the political year next succeeding the first annual election after the happening of the vacancy, if the office be made elective by the Constitution, which said section 38 but for said section 180(2) of the County Law would apply to sheriffs and limit the power of appointment to fill a vacancy to the term ending the first year following any general election regardless of whether the office could be lawfully filled thereafter.</p> <p>Said section 180(2) of the County Law is, however, contrary to the constitutional provision (State Const, art. X, i 5) that no person appointed to fill a vacancy in an elective office shall hold his office “ longer than the commencement of the political year next succeeding the first annual election after the happening of the vacancy,” and the governor cannot appoint a sheriff to fill a vacancy caused by death after October fifteenth preceding a general election to hold for a term beyond the first of the next January.</p> <p>That the constitutional provision (Const. Art. X, § 1), that an election of a sheriff to fill a vacancy shall be for the full term of three years, would require a special election triennially does not nullify the provisions of the Constitution and statutes requiring a special election to fill the vacancy.</p>

<p>Motiow for the appointment of a referee to compute amount due in foreclosure.</p>

<p>Motions to set aside the service of summonses.</p>

<p>Action to recover commissions for services rendered in securing a certain contract.</p>

<p>Statutes — statutory authority — courts will not interfere with rules of regents of University of New York relating to diplomas — Education Law, § 73 — Laws of 1913, chap. 292.</p> <p>Mandamus — application for writ of — when denied.</p> <p>The courts will not examine into the wisdom or reasonableness of a rule of the regents of the university relating to college entrance diplomas adopted pursuant to statutory authority and not in conflict therewith.</p> <p>Section 339-f of the rules of the regents of the university made May 18, 1916, pursuant to section 73 of the Education Law, added by chapter 292 of the Laws of 1913, relating to college entrance diplomas and providing that they “ will be given only to pupils of the registered secondary schools of this state who make written application for such diplomas by the fifteenth of the month of July, next succeeding the completion * * * of at least four full school years of time ” who have earned under regents’ examinations the average standing required by the rule, has the force of a statute.</p> <p>'Where on the hearing of an application for a peremptory writ of mandamus to compel the state commissioner of education to determine whether petitioner’s infant daughter was entitled to a college entrance diploma under the regents ’ rules during the school year ending August 1, 1916, and to cause her name to be included in the list of candidates for university scholarships, it appears that -her average standing on graduation from the Watertown High School though it qualified her for admission to college, that was insufficient to entitle her to a state scholarship, and, as -she did not make a written application for a college entrance diploma within the time limit of said rule 339-f, the writ must be denied, without costs.</p>

Application by the clerk of the county of Erie for a peremptory writ of mandamus to compel the state civil service, commission to reclassify the positions of special deputy clerks of the Supreme Court and of the County Court of Erie county, and to place such positions in the exempt class of the civil service.

<p>Motion under section 756 of the Code of Civil Procedure for an order of substitution.</p>

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

<p>Divorce — terms of decree of — when not lawful to remarry in this state — marriage — jurisdiction!</p> <p>Where by the terms of a decree of divorce as well as by statute it was not lawful for the defendant to remarry in this state during the lifetime of his former wife, but he does, said marriage is void and the court has inherent jurisdiction to declare its nullity.</p>

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

<p>Judgments — action for a separation — when wife entitled to judgment —■ evidence.</p> <p>Where in a wife’s action for a separation she testifies that she is willing to live with her husband apart from his mother, but insists that his acquiescence without objection or protest in the treatment she has received at the hands of his mother, together with his failure or refusal to take any steps to relieve her from it or its effects, entitles her to the "decree sought, and the evidence amply sustains her version of the things of which she complains, she is entitled to judgment though from her appearance and her manner of testifying it is apparent that she is not altogether lacking in temper.</p> <p>Where defendant, though without means of profitable employment, is in the early prime of life, well and strong, of good education and of more than usual intelligence and nothing but a disinclination to work interferes with his ability to earn a reasonable living for his wife and child, he will be directed to pay a certain sum weekly for their support with leave to either party to move at the foot of the judgment to change the amount at any time conditions shall seem to so require.</p>

<p>New trial — motion for — stay — attorneys — judgments— verdicts — motions and orders —Code Civ. Pro. §§ ggg, 1002 —laches.</p> <p>After a verdict in favor of plaintiff, the court entertained a motion for a new trial under section 999 of the Code of Civil Procedure to be heard at a future time, and an order was entered staying all proceedings on the part of plaintiff pending the determination of the motion, but defendants’ attorney neglected to bring it on for argument before the death of the trial justice, four years later. The death of defendants’ attorney occurred eight years after that of the justice and the motion for a new trial was never argued. The defendants neglecting and refusing to appoint a new attorney, after service upon them of a notice pursuant to section 65 of the Code of Civil Procedure, an order was granted vacating the stay of proceedings and plaintiff entered judgment upon the verdict. Held, that a motion to vacate said judgment on the ground that plaintiff had lost his right thereto because of laches will be denied.</p> <p>That defendants’ interests in the merits of the motion for a new trial, if any, could be protected by a new motion under section 1002 of said Code.</p>

Motion to punish the defendant and Joseph M. Cohn, its secretary, for contempt, in failing to produce books and papers, and Joseph M. Cohn for refusing to sign his deposition after it had been taken.

<p>Carriers — of merchandise — hills of lading — actions —evidence — meaning of “ invoice price ” — interstate commerce commission — when judgment in favor of plaintiff affirmed.</p> <p>For the purpose of protecting parties against variations and fluctuations in value, the “ uniform bill of lading,” adopted by an agreement of the interestate commerce commission with the various common carriers of the country, provides that “ The amount of any loss or damage for which any carrier is.liable shall be computed on the basis of the value of the property (being_ the tona fide invoice price, if any, to consignee, including the freight charges, if prepaid) at the place and time of shipment under this bill of lading."</p> <p>Where, in an action by a mail order company brought solely to recover the “ invoice price, if any," for a loss of premium merchandise shipped over defendant’s railroad, the contention of plaintiff that at the time of shipping all of its commodities, there is a definite cash price fixed by its catalogue, issued to the public, under which the customer makes his purchase, fixed not only on the product sold but also on the premium merchandise, is sustained by the proof, and plaintiff and defendant having agreed that “ invoice price ” means the actual amount paid or agreed to be paid by the purchaser, there is an “ invoice price within the meaning of the uniform bill of lading upon the premium merchandise, and a judgment in favor of plaintiff will be affirmed.</p>

<p>Motion by defendant to set aside a verdict directed by the court and for a new trial.</p>

<p>Motion to set aside a verdict for the plaintiff and for a new trial.</p>

<p>Judgments — foreign—-when obtained in sister state — jurisdiction — attorneys — evidence — omission of revenue stamps — actions — pleading—Code Civ. Pro. §§ 952, 957— when plaintiff éntitled to amount sued for with interest.</p> <p>In an action upon a judgment obtained in a sister state upon a note the judgment is conclusive as to the merits of the controversy and is itself an indebtedness and conclusively establishes the claim upon which it is based.</p> <p>The foreign judgment like one rendered in this state may be impeached for want of jurisdiction over the subject-matter, or of the parties or for fraud.</p> <p>A defense that the foreign court was without jurisdiction to render the judgment sued on must be affirmatively pleaded, and a general denial which only puts in issue the existence of the judgment is insufficient.</p> <p>The jurisdiction of courts' of limited jurisdiction and the facts upon which it depends must affirmatively appear in support of judgments rendered by them.</p> <p>The jurisdiction of courts, of record of general jurisdiction is presumed and proof of want of jurisdiction must come from the party seeldng to impeach judgments rendered by them.</p> <p>Where reliance is placed on a foreign judgment rendered by a court of record and of general jurisdiction, the presumption is that such court had authority to render the judgment in question, and that the necessary jurisdiction was acquired properly and the party who denies the same must assume the burden of proof.</p> <p>The duly authenticated record of a judgment of a sister state is prima facie evidence of the jurisdiction of the court which rendered such judgment.</p> <p>Where a copy of a record of a sister state judgment shows that the court rendering such judgment was a County, District or Circuit Court with a presiding judge, a clerk and a seal, and, therefore, a court of record, it may be presumed that the court was one of general jurisdiction.</p> <p>While the presumption of jurisdiction prevails in the ease of courts of general jurisdiction in the absence of any statement in the record showing service or appearance, if it should affirmatively appear from the record itself that there was neither notice nor appearance, this presumption would then fail and the judgment would be void.</p> <p>A statement in the record that defendants appeared by attorney is prima facie evidence of his authority to appear and confess judgment.</p> <p>A certificate under the seal of a court of a sister state, signed by the clerk and dated, which certifies that he had compared the record with the original and that “ I have found the same to be a full, exact and correct transcript therefrom, and of the whole of the said original record,” conforms to the requirement of section 957 of the Code of Civil Procedure and also complies with section 952 of said Code relating to the judgments of foreign countries.</p> <p>Another certificate bearing the same date as the other, under the seal of the court and signed by the clerk and containing the stateitient that a certain person, naming him, “ is one of the presiding judges of said court,” and a further certificate bearing the same date signed by the person named as “presiding judge ” sufficiently complies with section 905 of the United States Revised Statutes.</p> <p>The omission of revenue stamps from the eertfieates of the clerk and the judge of the court in which the judgment sued on was rendered did not affect their admissibility as evidence in a state court.</p> <p>The plaintiff is entitled to recover the amount of the judgment sued on, with interest thereon at the rate of six per cent, from the date of its rendition.</p>

<p>Service — when appellate court may disregard the omission of word “him” from constable’s certificate of — sufficiency of proof of service — action in Justice’s Court — waiver of all right to object — Code Civ. Pro. §§ 722, 723.</p> <p>Where, in an action in Justice’s Court, judgment was rendered in favor of plaintiff upon filing the summons and verified complaint, both of which were duly served upon defendant who, upon the return day, answered the complaint orally, but raised no question and made no objection either as to the form or sufficiency of the proof of service or the sufficiency of the evidence upon which the judgment was rendered, and by an appeal seeks to reverse the judgment, principally upon the ground of defective proof of service of the summons and complaint, he will be held to have waived all right to object and cannot be heard to complain that the constable’s certificate of service was insufficient.</p> <p>The appellate court under sections 722 and 723 of the Code of Civil Procedure may either disregard the omission of the word “ him ” from the constable’s certificate of service or may direct an amendment thereof by the insertion therein of the omitted word.</p>

<p>Highways — public — constructed ior public travel — automobiles — negligence.</p> <p>Highways are constructed for public travel not for animals to stray in.</p> <p>The owner of fowls has no right to permit them to run at large in the public highway and he is guilty of a fault if he. does.</p> <p>A turkey straying on the public highway is a trespasser and, where defendant operating an automobile thereon ran over and killed a turkey owned by plaintiff, no action lies to recover its value, in the absence of proof of defendant’s negligence oi that the killing was intentional.</p>

<p>Contempt — when contempt may be predicated — supplementary proceedings — judgments — default — separation.</p> <p>A contempt of court may not be predicated upon anything except a violation of a specific direction of a judge or referee delivered personally to the respondent.</p> <p>Where a judgment debtor, by a signed stipulation, pursuant to which his examination in supplementary proceedings is adjourned to a particular date, waives the direction of the referee to appear at the time and place of adjournment and agrees to appear thereat in person, but does not, and on motion to punish him for contempt it does not appear from the record that the referee ever adjourned the proceeding to the date fixed by the stipulation, although he convened at that time and took the judgment debtor’s default, the motion will be denied.</p>

<p>Application to compel trustees to pay over to petitioner certain moneys alleged to be income and claimed by petitioner.</p>

<p>Motion by defendant for a retaxation of costs.</p>

<p>Carriers — of passengers — when passenger entitled to have certain jewelry contained in hand-bag transported as “baggage”—actions — evidence — when motion to set aside dismissal of complaint made upon the pleadings granted.</p> <p>A railway passenger under the contract for her own transportation is entitled to have thrcd rings and a lavalierre contained in a hand-bag safely transported as ‘1 baggage, ’ ’ and, where the carrier by a rule duly promulgated refuses to passengers the right to turn over jewelry to its exclusive custody for safekeeping, it is liable as an insurer for its safety during the journey.</p> <p>Where the passenger left her jewelry momentarily upon a table in the dining car with waiter employees and other persons near by and upon returning to claim it no trace of it could be found, it cannot be said as matter of law that the loss of the jewelry was due to the passenger’s own act, and in an action to recover for said loss the question as to just what plaintiff did with said jewelry and whether such act or neglect on her part was a violation of such duty, if any, of care as she owed concerning “ baggage ” requires the taking of testimony, and a motion to set aside a dismissal of the complaint made upon the pleadings and the opening of plaintiff’s counsel will be granted and the ease restored to the calendar for trial.</p>

<p>Summary proceedings — institution of, for nonpayment of rent — eviction — landlord and tenant — meaning of “ resume possession ” — lease.</p> <p>Where a tenant is in possession of the premises at the institution of summary proceedings against him for nonpayment of rent, the issuance of a dispossess warrant is not res adjudieata upon the question of constructive eviction, as the tenant could not avail himself of such defense.</p> <p>In an action for rent the defense of constructive eviction is waived where defendant remains in actual possession of the premises until actually evicted by summary proceedings.</p> <p>Where a tenant is evicted by summary proceedings, the words “ resume possession,” in a provision of the lease that the landlord may resume possession and relet the premises for the balance of the term for account of the tenant who shall make good any deficiency, having no restricted technical meaning, will be construed as including all lawful means of retaking possession of the premises.</p>

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

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

<p>Evidence — in action to recover for work, labor and services — witness — contract — trial — Penal Law, § 439.</p> <p>Where in an action to recover for work, labor and services two disinterested and unimpeached witnesses for defendant testified to admissions of plaintiff which conclusively established that he, in order to induce the mailing of the contract in suit, and in violation of section 439 of the Penal Law, entered into an agreement with defendant’s agent, which was intended by both to influence the awarding of subsequent contracts to plaintiff, it is error to direct judgment in favor of plaintiff on the ground that the evidence was not specific enough to defeat a recovery, and the judgment will be reversed and a new trial granted.</p>

<p>Sales — when sale void as against creditors of seller — conversion — Bulk Sales Act (Personal Property Law, § 44 [1, 3]).</p> <p>Where the sale of a stock of goods comes within the Bulk' Sales Act (Personal Property Law, § 44), subdivision 1 of which provides that a sale of the character therein referred to “ shall be void as against the creditors of the seller ” unless certain requirements are complied with by both the seller and the buyer, such a creditor may proceed as if there had been no sale, and subdivision 3 of said section which provides additional means of reaching property that a debtor may have sought to put out of the reach of his creditors is not in conflict with but complements subdivision 1 of said section.</p>

Appeal by plaintiff from judgment of the Municipal Court of the city of New York, borough of Manhattan, sixth district, in favor of plaintiff for eight dollars, and costs, after trial before the court without a jury.

<p>Corporations — contracts—■ evidence — actions — Code Civ. Pro. § 1776.</p> <p>Where prior to and in anticipation of the incorporation of defendant, one who became its president on its incorporation ordered plaintiff to do certain work of which defendant received the benefit, evidence that it made payments to plaintiff in excess of the cost of work, labor and services ordered since the incorporation constitutes a ratification of the contract and plaintiff is entitled to recover.</p> <p>The provision of section 1776 of the Code of Civil Procedure, that a corporation defendant may not deny its existence at the time of the commencement of the. action, does not preclude proof, under a general denial, that a contract alleged to have been made in the name of the defendant was made at a time when it had no corporate existence.</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 plaintiff after a trial by the court without a jury. Defendant also appeals from an order denying his motion to set aside the service of the summons.

<p>Stipulation — when action cannot be amended by — parties.</p> <p>An action cannot by stipulation be amended so as to change it into an action against the defendant as executrix for the purpose of enforcing a liability against the estate instead of against the defendant individually.</p> <p>In an action for work, labor and services, the question whether plaintiff, in violation of section 439 of the Penal Law, gave an agent of defendant a gratuity or benefit as an inducement for entering into the contract sued for, is one of fact, and the finding of the trial judge thereon will not be disturbed on appeal from a judgment in favor of plaintiff.</p>

Appeal by defendant Louis Groldbaum from a judgment of the'Municipal Court of the city of New York, borough of Manhattan, first district,, in favor of the plaintiff for $312.88, after trial without a jury.

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

Appeal by plaintiff from an order of the Municipal Court of the city of New York, borough of Manhattan, fifth district, setting aside the verdict of a jury in his favor.

Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, dismissing its complaint at the close of plaintiff’s case.

Appeal by defendant from a judgment of the City Court of the city of New York in favor of plaintiff for $400, after a trial by a judge and a jury.

<p>Sales — conditional.— contracts'—actions — waiver — when .action not barred by Personal Property Law.</p> <p>Where after jlie sale of a printing press, under a contract of conditional sale, the seller at the buyer’s request takes it away and returns certain notes given as part of the purchase price, the transaction constitutes a new contract of resale or a waiver for a new and valid consideration and an action to recover the cash payment at the time of the conditional sale is not barred by the Personal Property Law.</p>

Appeal by defendants from a judgment of the Municipal Court of the city of New York, borough of The Bronx, second district, in favor of the plaintiff for the sum of $355, and costs, after a trial by the court without a jury.

<p>Evidence — when properly received — action to recover commissions for obtaining indemnity policy — pleading — bill of particulars — witness — contracts.</p> <p>In an insurance broker's action to recover a commission for obtaining an indemnity policy for D., the complaint alleged that plaintiff had previously procured such a policy from defendant for the same party who had promised that, in the event of his securing a certain contract in connection with which ■ the second policy was required, he would employ plaintiff to procure it, and that defendant, when the first policy was issued, agreed that if plaintiff secured for it the issuing of the second policy it would furnish it, but there was no allegation that defendant promised to pay a commission. On the trial, evidence given in support of the complaint was substantially denied by defendant’s manager and' his version of the transaction was supported by the testimony of D. who admittedly was disinterested in the controversy. The testimony of a witness for plaintiff, amply qualified and wholly disinterested,- that it was the custom for indemnity insurance companies, after having issued a policy, to pay the broker who introduced the insured commissions on all future business obtained from the same customer, was objected to as incompetent, irrelevant and immaterial. Held, that as the plain implication of the complaint, which was hot challenged in any respect, was that defendant had become obligated to pay the commissions sued for, but whether by express or implied agreement was not'suggested, the testimony offered was in nowise at variance with the complaint or the bill of particulars and was properly received.</p> <p>That said testimony as to custom being uneontradieted and its accuracy and truth unshaken in the slightest degree on cross-examination of the witness should be accepted as determinative.</p> <p>That as said testimony was not to the effect that the custom testified to was local, but was sufficient to show that it was a universal and binding custom in the line of insurance brokerage, there was no error in its admission, nor was it necessary to prove that it was known to defendant.</p>

Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fourth district, in favor of the plaintiff for the sum of $175 and costs, after a trial by a judge without a jury.

Appeal by plaintiff from an order of the City Court of the city of New York setting aside a verdict in favor of plaintiff, and from the judgment dismissing the plaintiff’s complaint.

Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, third district, in favor of defendant, entered upon the decision of the court of a question of law arising upon a set of stipulated facts.

<p>Carriers — of perishable goods — bills of lading — negligence — damages — trial — evidence — judgments.</p> <p>At common law a common carrier of perishable goods is only required to use, ordinary care in preserving them from injury while en route.</p> <p>Where,' however, the goods are in good order when received by the carrier and in bad order when delivered, the burden is on the carrier to show affirmatively that it was not negligent and that it used proper care in its efforts to preserve the goods from injury.</p> <p>Celery, if properly cared for, may be shipped from Florida to New York city in the ordinary course without suffering material injury, and, if in good order and condition when received on defendant’s cars and in bad condition when delivered at its destination, defendant is liable for the damages unless it shows affirmatively that it used reasonable care to protect the celery from injury during transportation; the question, therefore, whether it was in good condition when put on defendant’s cars in Florida is material.</p> <p>On the trial of an action to recover damages to a part of a shipment of celery, plaintiff testified that it was in good condition when shipped and the bills of lading stated that it was received “ in apparent good order,” but, in contradiction, testimony, which did not sufficiently identify the celery in question, was received, over plaintiff’s objection and exception, as to its condition when placed on the cars at the place of shipment. Held, that as it was impossible to determine whether a verdict in favor of defendant was rendered because the jury found that the evidence showed that the cars were handled with reasonable care or because the celery was in poor condition when loaded, the court erred in receiving the testimony and in denying a motion to strike it out.</p> <p>A charge to the jury that in case of perishable goods a common carrier is only liable for deterioration when negligence is shown in protecting the goods, and a refusal to charge that the burden was on defendant to prove absence of negligence, is error calling for the reversal of a judgment in favor of defendant, as the jury might have considered that plaintiff, who offered no evidence of such negligence, had made out no case against the defendant.</p>

<p>Cross motions for judgment on the pleadings after demurrers by certain defendants as stated in the opinion.</p>

<p>Action for the specific performance of a contract for the sale of a steamship. Demurrers to complaint.</p>

<p>Cross motions for judgment on the pleadings.</p>

<p>Action to recover upon a benefit certificate.</p>

Action under section 1638 of the Code of Civil Procedure to compel the determination of a claim adverse to that of plaintiff in respect to certain real estate.

<p>Lands under water — grant of — what is promotion of commerce — when title to lands under water determinable by seniority — forfeiture of lands under water — pleading — statutes — when state has absolute right to part with its lands under water.</p> <p>As between two grants of land under navigable waters validity of title is determinable by seniority.</p> <p>The state has an absolute right to part with its title to lands under navigable waters, either by beneficial enjoyment grants or commerce grants, unless restrained by constitutional checks.</p> <p>A grantee of land under water for the purpose of promoting commerce may erect private manufacturing plants and is not restricted to the erection of docks to which the public has the right of user upon payment of reasonable fees.</p> <p>Where forfeiture of grants under the waters of the Bast river to promote the commerce of the state is sought for violation of conditions subsequent, such conditions must appear essential to the purpose of the grant, clear in terms and application, and where the grantees have filled in the land in performance of the dominant condition the land becomes theirs with all the attributes of ownership in fee, and where the grants do not provide against the erection of buildings, refineries and manufactories, and the condition as to building docks is too general, and indefinite to be enforced by a specific performance, defendant ’s motion for judgment' on the pleadings will be granted.</p> <p>Without, a grant from the state the upland owner as well as he who by filling in becomes the owner in fee of filled-in lands has the right to erect a private dock as part of his own right of access.</p>

<p>Condemnation proceedings — when lands cannot be acquired for street purposes except by express legislative action — railroads — judgments.</p> <p>Where railroad property is used as a car barn and for storage and other purposes or may be needed therefor in the future, it cannot be acquired for street purposes except by express legislative action.</p> <p>The same rule applies to the acquisition of lands for street openings as applies to the assessment for benefit, i. e., property acquired for a public purpose cannot be condemned for another public purpose except by express legislative authority, nor can it be assessed for an improvement made.</p> <p>A street surface railroad has the same right to oppose the talcing of its property whether acquired by purchase or by condemnation as any other railroad has.</p> <p>Where the board of estimate has determined that there is a public necessity for a proposed new street, its judgment in that regard being political and not judicial cannot be reviewed.</p>

<p>Condemnation proceedings — street opening proceedings — when court will refuse to confirm report of commissioners — damages — what should be considered in making assessment for damages.</p> <p>On motion to confirm the report of commissioners in a street opening proceeding an award of damages made to one other than the real owner will be corrected.</p> <p>Where there is nothing in the record to sliow that an award of damages included the damage done by change of street grade, statements of the commissioners that the award included such damage are conclusive.</p> <p>Whore the record in a street opening proceeding shows that there has been an improper application of the rules governing an award for damages, the court will refuse to confirm the report of the. commissioners if it appears that their error was prejudicial.</p> <p>The special use to which property sought to be taken in a street opening proceeding is being put at the time of the taking may properly be considered in assessing the damages, and where the commissioners fail to consider such use their report will not be confirmed.</p> <p>Where it is proposed to open several streets through a certain property the owner may not be allowed in each proceeding damages for the destruction of the usefulness of his property for the purposes for which it had been used.</p> <p>Where the benefit to lots already fronting on a public highway is much less than the benefits received by interior properties which previously had not fronted on the open highway, the assessment for benefits must be made accordingly.</p> <p>No assessment imposed for a street improvement is based merely upon the lineal frontage; the area of assessment is prescribed and its contents as well as the number of feet frontage are factors to be considered in fixing the amount of the assessment.</p> <p>As a general rule the “block by block” system of assessments should be followed in street opening proceedings, and properties in different blocks, which before the institution of the proceeding had a frontage on an existing highway, should be assessed at the same rate.</p> <p>A claim that the area of assessment fixed by the board of estimate was inequitable and should be changed, considered, and held, that there was no good reason for changing it.</p> <p>Where after a street opening proceeding was commenced changes were made in the elimination or modification of grade, it is equitable that expenses, incurred prior to such changes and which were rendered useless thereby, should be borne by the city.</p> <p>Where certain properties will be about nine feet above the street newly opened, while others will be near grade, allowance for those above grade should be considered in making the assessment for benefits.</p>