Volume 99 — New York Miscellaneous Reports

<p>Constitutional law — statutes — when legislature may in exercise of police power determine that general dissemination of information and sale of certain articles are prejudicial to morals — when motion for certificate of reasonable doubt denied — appeal — Penal Law, § 1142.</p> <p>A statute which violates no constitutional provision will not be declared void because deemed by some to be opposed to natural justice.</p> <p>The legislature in the exercise of the police power may determine whether the general dissemination of information upon the subject of birth control and the sale of articles designed to prevent conception are prejudicial to public morals and inimical to the welfare and interests of the community.</p> <p>That some do not agree with such legislation and may feel aggrieved thereby does not make it unconstitutional, nor can it be deemed class legislation because those who favor birth control believe that the right to spread such doctrine should not be curtailed.</p> <p>Where defendant was convicted of a violation of section 1142 of the Penal Law upon proof that she sold an article to be used by women to prevent conception and in conjunction therewith disseminated literature dealing with the question of conception and setting forth various ways and means by which it could be prevented, a motion for a certificate of reasonable doubt on the sole ground that said statute is unconstitutional will be denied.</p> <p>Where an appeal from such conviction is undetermined the fact that the governor released defendant from imprisonment before the expiration of her sentence does not preclude a decision of said motion.</p>

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

<p>Criminal law — when pardon does not wipe out conviction for crime as affecting a second offender — indictment — evidence — witness — trial — Code Grim. Pro. §§ 482-a, 485-a, 5T4-a, 94r, 943, 944-a.</p> <p>A pardon does not wipe out a conviction for crime to the extent of preventing it from being used as the basis of an indictment and proof upon a charge of being a second offender.</p> <p>Sections 482-a, 514-a and 944-a of the Code-of Criminal Proeedure relating to proof of prior convictions are not exclusive, and upon the trial of an indictment for assault in the second degree charged as a second offepse, defendant’s prior conviction may be shown either in accordance with the rules of the common law or by any other competent proof.</p> <p>Where defendant as a witness in his own behalf admits his prior conviction, an error in receiving an extract of the minutes of the prior trial which did not comply with the provisions either of the Code of Civil Procedure or the Code of Criminal Procedure, nor proved by any competent evidence, is harmless.</p> <p>Whether the defendant was a second offender was a question for the jury, and a charge that if they found that the assault for which defendant had previously been convicted came within the definition of assault in the second degree they should find him guilty as a second offender, though erroneous, was harmless, defendant having been convicted on the last trial only of assault in the third degree.</p> <p>Under sections 485-a, 941 and 943 of the Code of Criminal Procedure, requiring certain information to be transmitted to the secretary of state concerning the pedigree and previous record of one convicted of crime and authorizing his examination in order to obtain it, information as' to former arrests of convicted persons not resulting in conviction is not required to be furnished, and it is clearly improper to admit in evidence on a subsequent trial the answers made upon an examination under said sections showing prior arrests.</p>

<p>Deeds —■ what passes By — descriptions contained in — parties to — mortgages — when no additional property passes — insertion of words “ being the same premises.”</p> <p>Nothing passes by a deed of conveyance except what is described therein, no matter what the intention of the parties may have been.</p> <p>Where the description of land, by metes and bounds, stated in a purchase-money mortgage, does not include land in the street, the insertion of the words “ being the same premises ” conveyed to the mortgagor passes no additional property though the land in the street was expressly included in the deed to the mortgagor.</p>

<p>Verdict — when, should be set aside — difference between trial judge and jury as to verdict — evidence — motions and orders — Code Civ. Pro. § 999.</p> <p>There being no standard by which to determine the question, a verdict should rarely be set aside, and should not merely because of a difference between the trial judge and the jury as to what the verdict should be.</p> <p>The provision of section 999 of the Code of Civil Procedure that a verdict may be set aside when “ contrary to evidence ” is inclusive of all grounds upon which such action may be taken.</p> <p>Where in an action for personal injuries plaintiff was not entitled to recover if the accident happened as testified to by defendant’s witnesses, and plaintiff was the only witness on her side as to how it occurred) and none of the witnesses j«s discredited, a verdict in favor of plaintiff is not palpably wrong and justice does not require that it be set aside.</p>

<p>Motion to vacate and set aside an order of reference to hear and determine the issues in an action for partition óf real estate, and that the issues be referred for hearing and determination to another referee.</p>

<p>Condemnation proceedings — proceeding to acquire land for street uses — when application for appointment of commissioners of estimate and assessment denied — title — Greater New York charter, § 992.</p> <p>Where the city of New York, in disregard of the limitation of the resolution of the board of estimate and apportionment authorizing a street opening proceeding and of the clear, express and unambiguous wording of section 992 of the Greater New York charter, as amended in 1910, initiates a proceeding to acquire lands for street uses which have already been acquired by conveyance, the application for the appointment of commissioners of estimate and of' assessment will be denied on the objection of property owners whose predecessors in title had conveyed to the city all of the real property within the lines of the street in front of the lands owned by them.</p> <p>The provisions of said section 992 are for the benefit of both the land owner and of the city to save costs and expense in a street opening proceeding.</p> <p>The court may not question the equity or propriety "of the area of assessment as fixed by the board of estimate and apportionment in pursuance of its delegated legislative power.</p>

<p>Contempt — disobedience of injunction order — city of Elmira.</p> <p>Where a contempt proceeding, to punish defendant for violating an injunction order which restrained him as an individual from operating a bus line through city streets until he had authority from the city and a certificate from the public service commission, was discontinued upon his representations that he had in good faith complied with the injunction and had abandoned the use of his horse-drawn vehicle in the manner complained of and was no longer engaged in the business of transporting passengers through said streets, a further application to punish him for a violation of said injunction will be denied, with leave to renew, where it appears that the title to his horses and wagon had been transferred to others and that he was simply employed by them on a salary to act as 'driver.</p>

<p>Mandamus — when writ of, denied — Education Law, §§ 47, 48 — Regents of the University of New York — when application to compel university to grant relators a rating upon examination papers denied.</p> <p>Information having been received by the Regents of the University during the months of February, March and April, 1916, that the principal of an educational institution incorporated by the regents had furnished its students with false certificates of attendance and had permitted them to take examinations without having regularly attended upon instruction -as required by the regents' rules, it appeared, upon investigation, that many of said students, including relators, did not attend upon instruction at the times and under the conditions required for attendance at registered secondary schools and that much of their instruction was given in violation of said rules and, as a result of the investigation, the registration of the institution as a member of the university was canceled by the regents July 1, 1916. Held, that as under sections 47 and 48 of the Education Law and the regents’ rules the entire control and supervision of examinations conducted at said institution are conferred upon the Regents of the University and rest entirely within their discretion, relators’ applications for peremptory writs of mandamus to compel the university to grant them a rating upon their examination papers of January, 1916, will be denied, though it appears that relators did not participate in the fraud of the principal of the institution.</p>

<p>Mortgages — action for construction of trust mortgage — liens — pleading.</p> <p>A trust mortgage given by a navigation company upon one of its vessels then in course of construction considered, in connection with the bonds and the correspondence between the parties, to have been intended to cover the mortgaged property as a completed vessel.</p> <p>Where by the terms of the mortgage the mortgagor could withdraw, from the sinldng fund, bonds deposited as collateral “ to pay for new or additional vessels ” or “ extensions of or additions to or improvements of a permanent nature ” to vessels, providing the cost should be twenty per cent above amount of bonds withdrawn, the mortgagor was not authorized to withdraw bonds to apply on the cost of one of the mortgaged vessels long after it was completed and paid for, as such course would exhaust the security coming from the sinking fund without giving to the bondholders security of any kind in lieu thereof.</p> <p>As the trustee by the terms of the mortgage was permitted to pay reasonable compensation to an attorney which would constitute a lien upon the property, it was entitled to an allowance of counsel fees in an action brought by the mortgagor to obtain a construction of the mortgage.</p>

<p>Statutes — validity of, how determined — city of Watertown — Optional City Government Law held unconstitutional—■ State Constitution, art. XII, § i.</p> <p>The validity of a statute is to be determined not by what has been done or what probably will be done but by what it is possible to do under its provisions.</p> <p>Tested by the rule above stated, the “ Optional City Government Law” (Laws of 1914, chap. 444), by the terms of which the electors of cities of the second and third class are permitted to vote on the adoption of any one of several forms of city government designated in said statute and which takes away the qualified negative of the mayor over hasty and inconsiderate action by the common council and confers autocratic power on that body to govern the city in such manner and by what means as it pleases without any limitation or restraint whatever save as to granting franchises, the sale or leasing of real estate, the incurring of municipal indebtedness and submitting propositions to the vote of electors or taxpayers and by which all provisions of the charter and of general or special laws in relation to the form of government of a municipality are superseded, is unconstitutional and void so far as applicable to the city of Watertown created by chapter 760 of the Laws of 1897, and a taxpayer’s action lies to perpetually enjoin and restrain the officials thereof from organizing the city government under the provisions of said “ Optional City Government Law.”</p> <p>A provision of the said “ Optional City Government Law,” which permits the city council to do away with the restriction of the power of taxation in municipalities and fails to provide any limitation in its place, clearly violates the express command of section 1 of article XII of the State Constitution and cannot be held to be a valid legislative act.</p> <p>Granting that there are some features of said statute which in and of themselves would not be inimical to the Constitution the invalid provisions are so connected with the general purposes of the act and are so interwoven among its provisions that they destroy the whole act, and, as to eliminate the invalid provisions would be to divest the statute of its most essential .features, the whole statute must be condemned.</p>

<p>Marriage — annulment of — when court of equity may annul a — actions — Code Civ. Pro. § 1750.</p> <p>A court of equity may annul a childless marriage for fraud on proof that the defendant, who long prior to and at the time of the marriage was an incurable epileptic, not only concealed the fact from plaintiff but led him to believe that she was in good health, and that but for such concealment and misrepresentation plaintiff would not have married her.</p> <p>The provision of section 1750 of the Code of Civil Procedure that a marriage shall not be annulled on the ground of fraud if it appears that at any time before the commencement of the action to annul the parties voluntarily cohabited with a “full knowledge of the facts constituting the fraud ” means knowledge of which there can be no question.</p> <p>Plaintiff, upon discovery of his wife’s epilepsy, was under no legal necessity or duty to abandon her, but was legally bound to care for her until a court of equity annulled the marriage, and that he eared for and continued to live with her in the same apartment, but without cohabiting with her, did not preclude his right to bring the action.</p>

<p>Negotiable instruments — construction of “ agreement binding upon the holder ” — extension of time of payment — when plaintiff entitled to recover on note against the makers and indorsers — Negotiable Instruments Law, § 201.</p> <p>The words “agreement binding upon the holder” in section 201 of the Negotiable Instruments Law, which declares that a person secondarily liable on the instrument is discharged “by any agreement binding upon the holder to extend the time of payment,” etc., should be construed to mean an agreement binding upon the holder made with the principal debtor.</p> <p>Where upon the refusal of a bank to renew a note made by a corporation for a loan and indorsed by its stockholders one of them, plaintiff herein, upon purchasing said note gave her own note in part payment and as collateral security therefor left the sold note with the bank and upon payment of her own note took up and became the sole owner of the note held by the bank which could at any time it held said note as collateral accept payment or bring an action thereon, if requested by the indorsers, plaintiff is entitled to recover thereon in an action against the makers and indorsers.</p>

Motion by plaintiff at Monroe Trial Term, February 5, 1917, to strike the case from the jury, calendar on the ground that it is an equitable cause of action.

<p>Mandamus — alternative writ of — city of Dunkirk — pleading — contracts — judgments.</p> <p>The issues presented by an alternative writ of mandamus requiring the common council of the city of Dunkirk to audit and pay the bill of relator for the sale of a motor-chemical fire apparatus and the answer of respondents, considered, and judgment awarded directing that the bill be audited and paid from any moneys legally applicable thereto and in the absence of such funds that the amount of such claim be included in the next tax levy.</p> <p>While a want of funds might have constituted a defense if pleaded and proven, it was a sufficient answer, to a contention that the purchase of said apparatus was unauthorized and the contract therefor invalid because the budget made no provision for relator’s claim, that no such defense was interposed by respondents’ answer.</p>

Action to determine the validity and priority of various claims to funds applicable to the payment of the contract price for the construction of municipal work.

<p>Action to establish a lien.</p>

<p>Damages — for seduction — when promise to marry will not defeat a recovery — trial — actions.</p> <p>Where defendant admits that on a number of occasions he had illicit sexual intercourse with plaintiff when she was under eighteen years of age she is entitled to recover damages for the seduction, and an allegation that defendant accomplished his purpose by a promise of marriage will not defeat a recovery.</p> <p>A charge to the jury that if plaintiff was under eighteen years of age and defendant had sexual intercourse with her as admitted, a cause of action was made out and she was entitled to recover is not erroneous though defendant denied the promise to marry plaintiff.</p>

<p>Negligence — action for injuries — evidence — trial — pleading — when motion for new trial and to vacate order dismissing complaint denied.</p> <p>Where in a negligence action for injuries sustained by falling into a coal hole in front of defendants’ premises plaintiff testified that as she was passing along the street she stepped on something, felt herself falling, then landed on her right elbow, with her right leg in a coal-hole up to her knee, and that at the same time the cover of the coal-hole, as to the situation of which at any time prior to the accident there was no evidence, flew off and to a distance of about two feet. Held, that the mere happening of the accident raised no presumption of negligence.</p> <p>That it was incumbent on plaintiff to show negligence and either actual or constructive notice to defendants of a prior dangerous condition of the sidewalk, and a motion for a new trial and to vacate an order dismissing the complaint at the close of plaintiff’s ease will be denied.</p>

<p>Wills— action to determine validity of — trial — evidence — codicil — undue influence — when verdict in favor of proponents directed — Code Civ. Pro. § 2538.</p> <p>Where in an action under section 2538 of the Code of Civil Procedure to determine the validity of a last will the jury is unable to agree, the court has power to direct a verdict.</p> <p>Upon the trial of such an action it was conclusively shown that the codicil to the will was executed with all the formalities required by statute and there was no sufficient evidence of undue influence to justify the submission of that question to the jury, and while the testimony disclosed many odd, unnatural and irrational acts of testatrix these acts were not continuous, and it was established beyond dispute that during many and long periods subsequent to the time the codicil was executed testatrix was entirely rational and of full understanding mind. Not only was there no evidence from which an inference could be drawn, at least by a layman, that testatrix was in an incompetent condition on October 20, 1910, the day she executed the codicil, but it was conclusively established that from October 16, 1910, until after October 20, 1910, she was in her normal and rational state of mind, conversant with her affairs and competent to look after them. Bach of the subscribing witnesses, one of whom was a physician, relating in substance what occurred at the time of the execution of said codicil, testified that testatrix at that time was competent. Of four alienists called to testify as to her condition on that day two stated that in their opinion she was competent and the other two that she was incompetent. The question directed by the surrogate to be tried in the action was whether at the time of making said codicil testatrix was of sound mind and memory and capable of making the instrument. The jury disagreed and upon the court entertaining a motion by proponents for the direction of a verdict it was stipulated by the parties before the jury was discharged that the motion might be retained and that the court might direct a verdict in all respects as if the jury were present, whereupon the jury was discharged. Held, that the court having power to direct a verdict should do so and that accordingly a verdict in favor of proponents will be directed, .establishing the validity of the will and codicil.</p>

<p>Indictment — allegations contained in — demurrer to, when disallowed — false representations — grand larceny — criminal law.</p> <p>It is well settled that a false pretense or representation, as understood in the criminal law, must relate to a past or present fact and not be the basis of an opinion, promise, or profession of purpose.</p> <p>Allegations in an indictment charging grand larceny in the second degree by means of false pretensions and representations, that defendant represented that he was able to have persons excused and exempted from military duty in the Italian army, and that he could and would have the complaining witness so excused, are but an expression of opinion and a promise and intention on defendant’s part to obtain the exemption of said witness from such military service and do not constitute false pretenses and representations as understood in the criminal law, but where it is also alleged that defendant falsely represented that he was connected with and authorized to act for the Italian consul in the city of New York the indictment is good on demurrer.</p>

<p>Negotiable instruments — bills, notes and checks — when negotiable — meaning of words “value received with interest” and “as per contract ”— pleading.</p> <p>Although the words “value received with interest” in a promissory note are followed by the words “ as per contract ” of a certain date, the instrument is negotiable.</p>

<p>Title — when vested in city of New York — taxes — condemnation proceedings— pleading — actions — judgments — Greater New York Charter, §§ 914, 990.</p> <p>On April 3, 1913, pending proceedings, as authorized by section 990 of the Greater New York Charter, to acquire title by condemnation to certain premises, including those of plaintiff, for street purposes the board of estimate and apportionment adopted a resolution declaring that upon May 1, 1913, the title in fee to each and every piece or parcel of land lying within the lines of a certain street should be vested in the city. Pursuant to section 914 of said charter, as amended in 1911, the taxes for the first half of 1913 became due and payable May 1, 1913, and a lien upon real estate subject to taxation. Plaintiff upon receiving payment of an award in the condemnation proceedings, at the request of the city comptroller, paid to the city the tax for the first half of the year 1913, with interest, upon its land taken in said condemnation proceedings, under a stipulation between plaintiff and the city to the effect that the taxes so paid were paid under protest and without prejudice to plaintiff’s right to recover the amount thereof, and interest, or without operating as a waiver of plaintiff’s right to enforce payment of the award, without paying the tax. In an action to recover the amount of taxes so paid, held, that the tax was not due and payable before May 1, 1913, and for that reason there could be no counterclaim or set off in favor of the city against the award due plaintiff.</p> <p>That there could be no question that plaintiff’s title to the land in question ceased to exist April 30, 1913, and presumably the award granted to it was made on that basis.</p> <p>That the lien, charge or claim for the said taxes for the first half of the year 1913 against said property must be regarded as affecting only the city which became its owner on May 1, 1913.</p> <p>That neither upon the theory that the tax became a charge on March 28, 1913, when the assessment rolls were finally completed and delivered to the receiver of taxes, with direction for collection of all taxes set forth therein, plaintiff being then the owner of the property, nor upon the theory that plaintiff was such owner on May 1, 1913, was defendant entitled to deduct the tax from the award due to plaintiff.</p> <p>That the judgment in favor of defendant dismissing the complaint on the pleadings should be reversed, with costs, and judgment directed in favor of plaintiff for the amount claimed, with interest and costs, together with costs in the court below.</p>

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

<p>Tender — when should be made — action for work, labor and services — pleading — judgments — Code Civ. Pro. §§ 731, 732, 734 — Municipal Court Code, § 15.</p> <p>Though by section 15 of the Municipal Court Code sections 731, 732 and 734 of the Code of Civil Procedure are made applicable to the Municipal Court of the city of New York, they only apply to a tender made after suit brought and before trial.</p> <p>Where in an action brought in the Municipal Court of the city of New York to recover for work, labor and services defendant pleads an agreement by plaintiff to perform the work and furnish the materials for a certain sum and claims in Ms answer that he tendered that amount to plaintiff before the commencement of the action and that before the trial he had deposited the same into court, but no attempt was made to prove the tender and it was not claimed that the deposit covered any costs, a finding by the trial court that the amount of said deposit was owing to plaintiff and that judgment should be for defendant was erroneous, and a judgment entered by inadvertence in favor of defendant for the amount of the deposit and costs will be reversed and judgment directed in favor of plaintiff for a like amount, and costs in the court below.</p>

<p>Appeal from a judgment in an action to recover on a policy of life insurance.</p>

<p>Injunctions — action for — corporations — use of name—unfair trade competition.</p> <p>Where defendant, the proprietor of a syndicate business, sold it and the right to use his name to a corporation, he may be restrained from engaging under his own name in the same kind of business in the same city, as may also a corporation thereafter formed by him to which he gave a name so similar as to cause such confusion and mistake as to amount to unfair trade competition.</p>

<p>Foreclosure — of mortgages — judgment of — actions — deeds — removal of cloud on title — when original mortgage is superior lien.</p> <p>Where a creditor gives up a good security and accepts a worthless one in its place under a mistake of fact, he will be reinstated as to his original security if it can be accomplished without injury to the rights and equities of third persons.</p> <p>In an action to foreclose a mortgage it appeared that B., one of the defendants, because of a recorded conveyance purporting to be made by her to H., the testator of one of the other defendants, was not made a party defendant in an action previously brought by plaintiff’s predecessor in interest to foreclose the same mortgage. That action proceeded to a judgment and sale and the property was purchased by said testator who as part of the purchase price gave to plaintiff in said action, the predecessor in interest of the plaintiff in the present action, a purchase money mortgage for the same amount as the mortgage under foreclosure, the balance of the purchase price being paid in cash. Seven years later, B. brought an action against H. to recover possession of the premises in question claiming that she never executed the purported conveyance to the testator of H. On the trial of the present action B., who in her answer alleged that said deed was a forgery, made no attempt to give evidence in support of such allegation and her counsel announced that he did not seek to impeach the deed. Held, that plaintiff was entitled to relief as against B. who rendered the present action necessary by her repudiation of the deed, prior to its institution, and by her confirmation of such repudiation in her answer.</p> <p>That plaintiff, if so desirous, is entitled to a second judgment of foreclosure of the mortgage, the defendants other than B. making no objection, as such form of relief will have the effect as against B. of removing a cloud upon plaintiff’s mortgage and settling the issue of the validity of the deed in question as between plaintiff and B.</p> <p>That there should be judgment in favor of plaintiff entitling her to enforce the original mortgage and reviving the same as against the defendants as an existing security for the payment of the principal and interest due thereon and adjudging that said mortgage is a prior and superior lien and that she have the usual judgment of foreclosure and sale, with costs against defendant B.</p>

<p>Insurance (fire)—policy of — meaning of “specifically assumed”— actions — trial — when motion for verdict denied.</p> <p>Whatever is embraced within the real meaning of the written portions of a policy of fire insurance designed to express the actual risk assumed is a “ special ” provision intended to satisfy printed conditions of exemptions from a risk.</p> <p>Where the printed clause of a policy of fire insurance on machines and machinery of every description provides that the insurer shall not be liable for “ loss to * * * patterns ” unless liability is specifically assumed, and in the typewritten part of the policy the character of the risk assumed is stated to be “on all appurtenances, apparatus and supplies used in the business of the assured,” liability for a loss on “ patterns ” which were models of castings to be formed for the assembling of printing presses in the course of the usual business of the assured was “specifically assumed” within the meaning of the policy.</p>

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

<p>Condemnation proceedings — power of board of estimate in — street opening proceedings — title — when motion to amend proceeeding denied — Greater New York Charter, § 992.</p> <p>Under section 992 of the Greater New York Charter, added by chapter 606 of the Laws of 1915, relating to street opening proceedings, and which provides that “ The resolution of the board declaring any such proceeding discontinued shall effect the discontinuance of such proceeding or such part thereof as may be discontinued,” and further providing for the payment of the expenses incurred by the property owners of the portion of the street that is eliminated, the power of the board of estimate to discontinue proceedings before title to lands sought to be acquired has vested in the city is absolute without any application to the court; such provision, being merely a change in procedure, applies to a proceeding commenced before the enactment of said section.</p> <p>At the time of the institution of the proceedings authorized by the original resolution of the board of estimate there was a house which stood in the line of the improvement and, when it was subsequently destroyed by fire, the owner, in consequence of and in reliance upon the good faith of the board of estimate in notifying her that if she built upon the old site she might not recover in the proceeding the value of the building, erected a new building on the line of the proposed street making entrances to it from that street. Under an amended resolution thereafter adopted the plan of the new street will not be opened near her property and, as a result, she claims substantial damages. Upon a motion to amend the proceedings to conform to the amended resolution of the board of estimate, held, that though the board should have considered the situation of said property owner before it made the change by which she would be absolutely deprived of her street frontage in the face of her protests and of the presentation of the facts and circumstances showing her good faith, the action taken by the board was within its legal power and said property owner must be held not to have any legal cause for complaint.</p> <p>That as under the amended resolution the owners of the property abutting on the portion of the street which is nol eliminated are burdened with the total expense of the entire proceeding, including the expense incurred in connection with the properties lying in the portion of the street that it is proposed to eliminate, a motion to amend the proceeding should be denied, the amended resolution being illegal in that it attempted to require said property owners to pay expenses which should and must be borne by the city.</p>

<p>Highways — awards for damages sustained by change of grade — interest — city of New York — damages — when writ of mandamus issues — Highway Law, § 59-a.</p> <p>The provision of section 59-a of the Highway Law, that whenever awards are made for damages sustained by a change of grade “the award for the principal amount of damages sustained shall bear interest at the rate of six per cent, per annum from the time of the change of grade to the time of payment of the award,” is of general application, and the receipt of the principal of an award for damages for the change of grade in front of petitioner’s premises in the city of New York, and the giving of a receipt in full payment, without reserving the right to interest, is not a bar to a claim therefor, even though no demand for interest was made when the principal was received.</p>

<p>Accord and satisfaction — what is an — payment — when agreement binding — contracts.</p> <p>Mortgages — assignment of — satisfaction of—■ foreclosure of — what is a good consideration — evidence—tender — interest — election of remedies — parties — pleading.</p> <p>The general rule that a mere partial payment of any indebtedness accepted in full settlement is not an accord and satisfaction is strictly limited to eases coming within it.</p> <p>Where a creditor receives something else for value in addition to a part payment, an agreement that it extinguishes the debt is binding.</p> <p>By an agreement synchronous with plaintiff's assignment of a $3,500 mortgage, as security for a loan of $2,000 made by defendants to a third party, defendants were declared to hold a prior interest in the mortgage to the extent of $2,000 with right to collect the whole principal and interest, being accountable to plaintiff for her share, and upon receiving payment to satisfy the mortgage. Both the assignment and the agreement were recorded and payment upon the mortgage by the owner of the property to defendants together with an assignment to them of a mortgage of $1,000 on other property totaled less than the amount defendants were entitled to receive, but they executed a satisfaction piece of the $3,500 mortgage which was not yet due and surrendered it with the accompanying bond. The indebtedness for which said mortgage was assigned as security was then past due and had never been paid. The amount of prior liens on said property covered by the $3,500 mortgage exceeded the value of the property at the time said mortgage was satisfied. At the time of the trial of this action by plaintiff to recover her share in the $3,500 bond and mortgage, the $1,000 mortgage which was subject to other liens had been cut off by a foreclosure and a deficiency judgment entered against the maker of the bond who was the same person who executed the $3,500 bond.</p> <p>Held, that under the terms of the participation agreement defendants, the holders of said mortgage under an assignment absolute on its face, had the right to foreclose the mortgage or sue for the debt, and that in either event plaintiff was not a necessary party plaintiff.</p> <p>That as to the debtor, the owner of the property, defendants were the owners of the mortgage with whom he could safely deal alone, and they having possession of the bond and mortgage any payment or settlement that bound them was also binding upon plaintiff.</p> <p>That the acceptance of the $1,000 bond and mortgage in the circumstances was a good consideration to make effective the agreement for the discharge in full of the $3,500 bond and mortgage and was, in the absence of fraud, valid as an accord and satisfaction extinguishing the debt and discharging the debtor from all liability either on the bond or on the mortgage.</p> <p>That while defendants could satisfy the mortgage if paid in full, or even when not so paid if the maker of the bond was insolvent and if it was done to prevent a foreclosure of a prior lien and was replaced by another mortgage on the same property and plaintiff’s interest not prejudiced, defendants had no right to extinguish the debt and discharge the lien of the mortgage unless it was paid in full, and that so to do without plaintiff’s consent was in violation of her rights and that as by defendants’ act she was deprived of her share in the debt and had no way of enforcing it defendants were liable.</p> <p>That an allegation of the complaint that the bond and the mortgage were for $3,500 was a sufficient allegation of their value and with a statement of plaintiff’s interest to the extent of $1,500 was a statement of her damages and it was not necessary to plead the value of the bond and mortgage.</p> <p>That as the solvency and the ability of the makers of the bond were presumed in the absence of proof to the contrary, and the amount unpaid on the bond being prima facie the value of the security although the mortgaged premises were not of that value, the fact that they were worth less than prior liens did not show that plaintiff was not damaged.</p> <p>That there was a deficiency judgment against the debtor at the time of the trial, nearly two years after the satisfaction was given and the bond and mortgage surrendered, was immaterial, the only question being whether the debtor was solvent at the time the satisfaction was given.</p> <p>That it was not necessary for plaintiff to tender to defendants the amount due them from the third party, to secure which the assignment of the bond and mortgage had been made, as the value of the security was greater than the debt, and that plaintiff by defendants’ act was injured to the extent of the balance of such value over the debt.</p> <p>That defendants have not received the amount of their interest in the bond and mortgage cannot be considered in determining the questions involved.</p> <p>That admissions in the answer showing that defendants had received more than their interest in the bond and mortgage while not binding and conclusive could properly be used as evidence against them.</p> <p>That after plaintiff learned of the satisfaction of the mortgage she filed a notice of claim of her interest in it, asserting that it still existed, was not binding upon her as an election of remedies and did not affect her rights to any legal remedy which she possessed.</p>

<p>Deeds — cloud on title — removal of — restrictive covenants in deeds — equity — actions — mortgages — Code Civ. Pro. §§ 1638, 1639.</p> <p>Restrictive covenants in a deed of conveyance created for the benefit of property retained by the grantor are enforcible only by him or his grantees who owned the property benefited by the covenant against the owners of the property burdened thereby.</p> <p>Restrictive covenants entered into by various grantees pursuant to a general plan, on the theory of mutuality, are enforcible by the several grantees each against the other.</p> <p>S, the owner of a plot of land, subdivided the same into lots and in every deed affecting an interior lot, described by metes and bounds, the . grantee covenanted that no building erected thereon should be situated less than twenty feet from the street; that no dwelling house should be erected on the lot of a value less than $5,000; that but one building should be erected on the lot and that no building of any kind should be erected thereon except a private .dwelling, and each deed expressly stated the covenants should run with the land. Both of the corner lots were conveyed by S free and clear of any such restrictions and about two years after the erection of an apartment house on one of them, without objection from those who naturally would be most concerned, the grantee of the other corner lot, together with owners of certain of the interior lots, brought an action under sections 1638, 1639 of the Code of Civil Procedure to have the restrictive covenants canceled and removed upon the theory that plaintiffs and their predecessors in title were deceived into believing that S intended to restrict both the inside and comer lots. Meld, that as it appeared that all that S did was to restrict the inside lots for the benefit of the remainder of his property the restrictive covenants were valid and binding and that the relief asked could not be granted as against the protest and objection of the holder of a mortgage on said apartment house.</p>

<p>Elections — what is a voting residence — when application to strike names from registry list denied.</p> <p>For the purpose of voting, the “Home for Aged Men and Couples ” in the city of Utica, H. Y. is the residence of its members, and an application to strike the names of male members from the registry list in the election district where the “ Home ” is located and from which they have voted for years will be denied.</p>

<p>Motion to inspect transcript of evidence given before the grand jury of Oswego county.</p>

<p>Calendar — when case stricken from — notice of trial — pleading — evidence — motions and orders — rule 37 of General Rules of Practice — Code Civ. Pro. §§ 542, 768, 977.</p> <p>Under section 977 of the Code of Civil Procedure a case must be stricken from the calendar where the notice of trial was served within fourteen days of the commencement of the term after joinder of issue by the service of an amended answer unless the amended answer was interposed for delay in which event it may be stricken out under section 542 of the Code of Civil Procedure and the case allowed to remain on the calendar.</p> <p>Where an amended answer sets up new matter which may be a complete defense to the cause of action the new matter will not be stricken out and a reply will be directed whether the completeness of the defense can be determined by a motion on the pleadings or will require evidence to establish it upon the trial.</p> <p>Under section 768 of the Code of Civil Procedure and rule 37 of the General Rules of Practice where a notice of motion of ten days has been given and answering affidavits have been requested additional answering affidavits may be filed in the discretion of the court, if not as a matter of right, one day prior to the time at which the motion is noticed to be heard.</p>

<p>Pleading — complaint — demurrer — equity — actions — parties — damages — Code Civ. Pro. § 484.</p> <p>A demurrer under section 484 of the Code of Civil Procedure will not lie to a complaint in equity when the subject of the action is certain land and the transactions involved in the action are connected therewith, although the complaint contains two or more causes of action, legal and equitable, where they all arose out of the same transactions, are embraced in one or more of the subdivisions of said section, are consistent with each other and the defendants are all interested in some part of the relief prayed for and different places of trial are not required.</p> <p>A complaint in equity which charges a defendant with false representations in obtaining a conveyance of land whereby more land was included in the conveyance than was agreed to be conveyed and with a failure to convey to plaintiff land which it agreed to. convey, and which seeks to compel a conveyance to plaintiff of the latter land, subrogating him to a claim for compensation for a portion thereof appropriated by the state and malting the owner a party to secure such conveyance and subrogation; to reform the deed of the first mentioned land; a reconveyance of the excess lands; damages caused during the occupancy of such excess lands under the alleged unlawful conveyance and the removal of structures on the property unlawfully conveyed, is not demurrable under section 484 of the Code of Civil Procedure.</p>

<p>Real property — order requiring sheriff to put a person in possession of, granted — Code Civ. Pro. § 1675.</p> <p>Under section 1675 of the Code of Civil Procedure an order of the court requiring the sheriff to put a person into possession of real property supersedes the ancient writ of assistance as to actions brought under title 1 of chapter 14 of the Code and may be granted ex parte in the discretion of the court.</p>

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

<p>Sales — what constitutes — parties —■ actions — appeal — Personal Property Law, § izg.</p> <p>While the delivery of a vietrola with an option to purchase at a certain price neither constitutes a sale nor a transfer of title until acceptance of the offer, yet where the buyer sells and delivers the vietrola to another he does an act “ inconsistent with the ownership of the seller ” within the meaning of section 129 of the Personal Property Law, and, in the absence of fraud, the transaction becomes a consummated sale between the parties.</p> <p>While the seller may sue the buyer from him for the agreed purchase price, he cannot maintain an action in replevin against the one to whom said buyer sold the instrument, and a judgment for the dismissal of the complaint in such an action will be affirmed.</p>

<p>Cloud on title — removal of — deeds — when assessment and sale of lands for unpaid taxes are void — when owner entitled to judgment.</p> <p>Where lands assessed and sold for unpaid taxes cannot be identified in the assessment roll and the certificate of sale, both the assessment and the sale are void for uncertainty.</p> <p>Where property consisting of about twelve acres was described by appropriate metes and bounds in deeds of conveyance forming the chain of title, a sale by the county treasurer for unpaid taxes under an assessment to a certain named person, as owner, who never lived on or ever had any interest in the property, which was simply described both in the assessment roll and the certificate of sale as eleven and one-quarter acres, no boundary line being given, the owner is entitled to judgment in an action to remove the certificate of sale as á cloud upon his title.</p>

<p>Taxes — what assessment roll should contain — city of New Rochelle — Tax Law, § 21(2).</p> <p>Due process of law demands that an assessment roll contain a description of the property sufficient to identify the land intended to be assessed.</p> <p>Under the provision of the charter of the city of New Rochelle which requires that property shall be designated or described on the assessment roll with reasonable certainty, and the requirement of section 21(2) of the Tax Law that assessment rolls shall state “the quantity of real property taxable to each person,” an assessment on a house and lot as “No. 33 Woodbury street” is insufficient.</p>

<p>Condemnation law — question of ownership between conflicting claimants — Code Civ. Pro. § 3357, et seq.</p> <p>In a condemnation proceeding, which is purely statutory, the court possesses only such jurisdiction and powers as are expressly conferred by statute, and such other incidental powers as may be necessary to effectuate the scheme of the statute.</p> <p>Under the condemnation law (Code of Civil Procedure, § 3357 et seq.), which does not expressly authorize such procedure, the question of the ownership, as between conflicting claimants, of property to be condemned, cannot be determined upon a motion before the commissioners of appraisal have made their award; such a method of trial is not a necessary incident to the power conferred upon the court by the condemnation law.</p>

<p>Personal Property Law — “Sales Act”—contracts — damages — date of delivery — actions — Laws of ign, chap. 571, § 148 (2, 3).</p> <p>Contracts — written — action for breach of — trial — jury — damages —• evidence.</p> <p>Evidence — when admissible — trial — contracts — jury.</p> <p>That portion of the Personal Property Law, commonly known as the “Sales Act” (Laws of 1911, chap. 571), including section 148 thereof, applies to contracts for the future delivery of goods.</p> <p>Where the buyer under such a contract, upon notification from the seller that it will make no deliveries, has commenced an action to recover damages for breach of contract, he is under no obligation to acquiesce in the seller’s effort to withdraw its renunciation or accept delivery when tendered on the contract date.</p> <p>Where the contract renounced relates to goods for which there is an available market at the time and place set for delivery, the law does not require the buyer to purchase goods, give replacing orders, or to do anything to reduce his damages below the difference between the contract price and the market value at the time and place set for delivery.</p> <p>Under section 148 of said “ Sales Act ” the buyer’s duty to do what he can to lessen his damage because of the seller’s renunciation of the contract applies only to cases in which there was no available market at the time and place set for delivery, where the goods could be "purchased, or the buyer proposes to plead and prove special circumstances tending to show proximate damages of a greater amount than the difference between the contract price and the market price of the goods at the time when they should have been delivered.</p> <p>Subdivisions 2 and 3 of said section 148 do not authorize the renouncing seller to either plead or prove special circumstances tending to show that the proximate damage, i. e., the loss which the buyer necessarily sustains, was less than the difference between the contract price and the market price, even though, before the date for any delivery arrived, the seller offered to do that which would enable the buyer to have full and prompt performance and avoid any loss at all.</p> <p>The “ anticipatory breach ” of a contract for the future delivery of goods, through the seller’s announced intention not to perform, does not fictitiously move the specifications of the contract, as to the time of performance, ahead to the time of such repudiation and enable the buyer to regard the seller as liable for failure to perform a new obligation to perform, as of the date of the repudiation; but the “ anticipatory breach ” does confer, though not necessarily, an optional right upon the buyer to sue to recover damages admeasured as though the contract calls for performance as of that date.</p> <p>The provision of subdivision 2 of said section 148, that, in an action for failing to deliver goods, the buyer’s measure of damages is the loss directly and naturally resulting in the ordinary course of events from the seller’s breach of the contract, applies to goods for which there is an available market, only upon taking into account the provisions of subdivision 3 of said section by which the buyer of such goods is entitled to receive at least the difference between the contract price and the market price at the time and place of delivery and may recover a greater sum by pleading and proving special circumstances tending to show that his actual proximate loss was greater than that difference.</p> <p>Under a written contract, pursuant to which defendant agreed to make installment deliveries of a certain number of eases of goods, the first installment was promised for February 15, 1917, and deliveries were to continue during the spring and be completed in June, 1917, but in December, 1916, when the conditions of prospective supply of the goods were very unfavorable, and it seemed possible that before the arrival of the time for the first delivery the shortage would force the market price far above the contract price and, perhaps, make deliveries impossible, defendant notified plaintiffs that it would make no deliveries under the contract. After the commencement of an action to reeovér damages for breach of the contract, but before the first installment would have been due, market conditions changed and defendant notified plaintiffs of its willingness to perform the contract in all respects, including deliveries at the contract price on each of the specified dates, and four days after the delivery date for the first two cases and before plaintiffs would have been entitled to receive any of the remaining cases under the contract, the action was brought to trial. On granting a motion to set aside a verdict and to restore the ease to the calendar for retrial, held, that the trial in advance of the delivery date did not preclude an award of compensatory damages measured by ascertainment of the probable market price on the future delivery date.</p> <p>That error in the jury’s ascertainment of that probable market price was one of the risks which the buyer assumed in seeking trial before the arrival of the delivery dates.</p> <p>That plaintiffs were entitled to have the jury determine and award them for the first installment of two eases the difference between the contract price and the market price therefor on the delivery date, and also the jury’s computation of the same difference as to the quantities deliverable on the dates enumerated in the contract down to June 1, 1917.</p> <p>That the market price of the goods for immediate delivery on the renunciation date was not controlling, nor was the price at which plaintiffs could on that date have made replacing contracts for delivery on the date specified in the broken contract.</p> <p>That plaintiffs to establish their damages were not required, on the renunciation date or at any time thereafter, to secure replacing contracts at the best market price obtainable for the whole or any part of the original contract, nor were they required to show the market price for the whole quantity of the agreed shipments by the indicated installment if sought to be procured from others.</p> <p>That what the market price of the goods in suit would probably be upon the dates enumerated in the original contract would be for the jury to determine as best it could from the evidence adduced on either side.</p> <p>That evidence of the market price and conditions on the first delivery date would obviously be admissible, as would likewise proof as to those prices and conditions before and after that date down to the day of trial.</p> <p>That evidence of the market price on the day of renunciation, though admissible if not palpably too remote, would not be binding on the jury or fix automatically the recovery although, in the absence of proof as to later prices and conditions, it might sustain a verdict based on that figure on the theory of the presmned continuance of a condition not shown to have been changed.</p> <p>That proof that inquiries among dealers in the goods had led to a quoting of a price and the actual purchase of goods at that price, even for less than the contract quantity, would be admissible if relating to a time not too remote.</p> <p>That competent evidence of the price at which, at the time of the trial, orders could be placed with responsible firms for delivery of the goods on the remaining delivery dates specified in the renounced contract would be admissible as- an aid to the jury in reaching a conclusion as to what the price will probably be on the eventual date.</p> <p>That competent evidence would be admissible of prospective changes in conditions of supply, demand and the like, affecting market value before the delivery dates.</p> <p>That the offer of defendant to withdraw its repudiation and make delivery on the contract dates at the contract price was neither material nor competent upon the issue before the jury.</p>

<p>Venue — when motion for change of, denied — Municipal Court of city of New York — action upon policy of fire insurance.</p> <p>Where an action was brought in the Municipal Court of the city of New York, borough of Manhattan, second district, where plaintiff resided, to recover upon a policy of fire insurance covering property contained in his place of business which was located within the third district of the borough of Manhattan, defendants’ motion for a change of venue to either that district or to the second district of the Bronx will be denied.</p>

<p>Lease — landlord and tenant — negotiable instruments — Statute of Frauds — contracts — tender — trial.</p> <p>In an action upon a cheek given for the first month’s rent of premises, under a letting for five years, it appeared that when plaintiff received the check he signed and gave to defendant’s president a paper in the form of a receipt which stated the parties, the terms of the lease and the agreed rental. Later defendant’s president refused to execute a lease tendered by plaintiff solely by reason of the high rate of insurance that would be imposed, on taking possession, for the transaction of defendant’s business. Held, that assuming that the so-called ■ receipt did not comply with the requirements of section 259 of the Beal Property Law, the defense that there was no consideration for the cheek because the agreement for letting was not in writing had not been established and a judgment in favor of plaintiff should be affirmed.</p> <p>Defendant having repudiated its agreement upon grounds for which plaintiff was in no way responsible, it was not necessary for plaintiff to make a formal tender of a lease at the trial.</p>

<p>Jurisdiction — of Municipal Court of city of New York — actions — corporations — damages — Stock Corporation Law, § 66.</p> <p>Corporations — landlord and tenant — judgments — damages — actions — amendment — courts — Code Civ. Pro. § 724 — Municipal Court Code, § 6(7).</p> <p>The Municipal Court of the city of New York has jurisdiction of an action brought by a judgment creditor of an insolvent corporation against its directors for making a transfer of all its property, prohibited by section 66 of the Stock Corporation Law.</p> <p>Though it might be necessary for plaintiff in order to fix the amount of damages to prove the assets and liabilities of the corporation at the time of the prohibited transfer, plaintiff’s recovery must be limited to the loss sustained, that is, the sum plaintiff would have received had the property of the corporation, upon its being wound up, been converted into money and applied to the payment of its debts pro rata.</p> <p>In ascertaining the liabilities of the corporation neither rent accruing after the maldng of the prohibited transfer, nor the loss suffered by the lessor in reletting the premises at a lower rental, is to be included, since they do not constitute plaintiff a creditor who had suffered loss by reason of such transfer.</p> <p>The design and purpose of section 66 of the Stock Corporation Law being to secure equality among creditors, plaintiff cannot by means of the right of action given by said section be permitted to gain a preference which another creditor is prohibited from getting directly from the debtor by the same law.</p> <p>That the court was without power to amend its original judgment in favor of plaintiff by increasing it to an amount in excess of that stated «in the decision of the court; such amendment and increase were not the correction of a judgment for an “ error in form or substance ” within the meaning and intent of section 6(7) of the Municipal Court Code; nor was such amendment within the power of the court un.der section 724 of the Code of Civil Procedure.</p>

<p>Statute of Frauds—memorandum in writing insufficient to avoid the — sales — contracts — evidence — Personal Property Law, § 85(2).</p> <p>A correspondence consisting of a letter from plaintiff to defendant and received by it, stating that plaintiff had placed an order with defendant’s agent for certain goods of specified sizes to be shipped at certain times, and a postal card sent two days later by defendant to plaintiff, acknowledging an order of the previous day but in no way connected with the letter or the order given to the agent, except by oral testimony, is not a sufficient memorandum in writing to avoid the Statute of Frauds.</p> <p>All the essential parts of an agreement of sale must be contained in the writings between the parties and cannot be supplied by oral testimony.</p> <p>It clearly appearing that the goods were not to be manufactured by defendant, the contract was not enforeible under section 85(2) of the Personal Property Law which was added thereto by chapter 571 of the Laws of 1911.</p>

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

<p>Lease — landlord and tenant —• what is meaning of “ consent ” — contracts—■ evidence — Lien Law, § 3.</p> <p>There is a marked distinction between the passive acquiescence of an owner of property in that he knows improvements, which in many eases he had no right to prevent, are being made thereon, and his actual and express consent that the improvements shall be made; it is the latter that constitutes the “ consent ” mentioned in section 3 of the Lien Law.</p> <p>A mere general consent on the part of the owner that the lessee may at his own expense make alterations and repairs does not constitute “ consent ” within the meaning of the statute.</p> <p>Mere knowledge does not imply consent within the meaning of the statute nor do expressions of satisfaction with the work, where the landlord exercises no control.or supervision over the performance of the contract.</p> <p>The lease of a roof garden, rented for a motion picture theatre, contained a direct notice to every materialman and contractor that the. landlord would not be liable for any work done or materials furnished unless the conditions provided for in the lease were complied with in order to hold the landlord for liens or to liability. The landlord upon the express condition that the tenant should remain primarily liable for the rent consented to the assignment of the tenant’s rights under the lease and after the undertenant had entered into possession of the roof garden, which it used for ball room purposes, it contracted for its decoration with plaintiff who in an action to foreclose a mechanic’s lien for the balance due him on the contract sought to hold the landlord liable on the ground that its officers and agents knew of the prosecution of the work from which it secured no material advantage and that certain plans were in the possession of its attorney. Held, that the evidence was insufficient to establish the landlord’s “ consent ” to the improvement, within the meaning of the Lien Law.</p> <p>An additional lien claimed by plaintiff for work done in fitting up the billiard room in the basement of the building under an oral agreement made with the undertenant cannot be sustained, the original tenant of the roof garden never having been a tenant of the basement.</p>

<p>Cebtiobabi to review an assessment for the year 1912 of relator’s special franchise.</p>

<p>Taxes — imposition of — special franchises — what is property state may tax — when writ of certiorari dismissed.</p> <p>While a state cannot impose a tax upon commerce between the states or with foreign countries, it may tax real and personal property within its borders although used in interstate or foreign commerce, and a franchise to use the streets and highways granted by the state is property a state may tax.</p> <p>Whether a tax is on property and valid or a burden on interstate or foreign commerce and invalid is to be determined by the operation and effect of the tax and not by the form of the statute and depends on whether or not the tax is^ for the privilege of engaging in interstate or foreign commerce or directly reaches the transactions in such commerce or the profits or benefits to be derived therefrom or fluctuates or varies according to the volume of business done in such commerce.</p> <p>The tax on special franchises under the New York Tax Law is a tax on property and valid even where the corporation is engaged exclusively in interstate or foreign commerce.</p> <p>Where the property is part of a larger earning unit, the net earnings of the whole form no proper basis for determining the earnings of the part if the mileage included in the special franchise is the means of reaching the central point from which business emanates and to which it converges.</p>

<p>Wills — construction of — residuary estate —■ meaning of “ his heirs and assigns forever ” — mortgages — evidence — actions.</p> <p>Where by a wife’s will her residuary estate was given to her husband, his heirs and assigns forever, with the understanding that he should give and turn over to her sister such part as remained undisposed of at his death, and in addition to a sum of money received from his wife’s estate he came into possession, from the same source, of a parcel of real property which he mortgaged, and he dies leaving a will by which all of his estate was given to his sister and sister-in-law, the latter is entitled to recover such part of her sister’s residuary estate as was not disposed of by her husband in his lifetime.</p> <p>While the words “ his heirs and assigns forever ” may be considered in determining the proper construction of the devise or bequest to the husband, their inclusion added nothing to the quality of the interest or estate which he would have taken without them.</p> <p>The money borrowed on the mortgage being identified and shown to have been intact in the savings bank at the husband’s death, where it had been originally deposited, should be paid to the wife’s sister upon the production by her of a certificate of a satisfaction of the mortgage.</p> <p>The evidence failing to identify the other moneys sought to be recovered, the action as to them must fail as it was at least necessary to show that that part of the property in the husband’s possession at his death was clearly traceable to his wife’s estate.</p>

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

<p>Process — service of, must be in the English language — publication — actions — divorce — when application for judgment denied — Code Civ. Pro. § 22.</p> <p>Under section 22 of the Code of Civil Procedure all process, records, pleadings and proceedings in our courts “ must be in the English language,” and service of the summons by publication, in an action for divorce, in a newspaper printed entirely in the Italian language, is ineffectual though both parties to the action are Italians; and where the action is uncontested plaintiff’s application for judgment must be denied and the complaint dismissed.</p>

<p>Constitutional law — injunctions — taxpayer’s action — city of New York — statutes — when complaint dismissed on merits — Laws of rgn, chap. 777.</p> <p>In a taxpayer’s action to enjoin the board of estimate and apportionment of the city of New York from taking any action to carry into effect a certain contract with the New York 'Central Railroad Company in pursuance of chapter 777 of the Laws of 1911, which was enacted with the object and purpose of ameliorating the condition of grade crossing evils on the west side of the city, held, that said statute is constitutional and that its provisions, which are not mandatory, are still in force.</p> <p>That there is no merit in plaintiff’s suit and there never was any justification for said action either in law or in morals, and defendants’ motion for judgment for the dismissal of the complaint on the merits will be granted.</p>

<p>Lien Law, § 2 — when valid mechanic’s lien created — city of New York — Laws of 1901, chap. 580.</p> <p>Under section 2 of the Lien Law, a valid mechanic’s lien may be created and enforced against a “ Carnegie Free Public Library ” established in the city of New York under the authority of chapter 580 of the Laws of 1901.</p>

<p>Action to recover amount of charges for freight, car service, unloading and storage.</p>

<p>Negligence — action to recover for personal injuries — waiver — pleading.</p> <p>In an action brought against Cornell University by a duly enrolled student in its Agricultural College, to recover for personal injuries sustained in consequence of the explosion of a mixture of chemicals in a glass tube, while she was performing a certain experiment in chemistry under the verbal instructions of one of the instructors, defendant should be protected or held liable by the same rules of law as are charitable institutions, and the waiver of any liability of the defendant for negligence, implied from the relation between it and plaintiff, precludes a recovery.</p> <p>The complaint herein considered, and demurrer thereto, on the ground that it fails to state a cause of action, sustained.</p>

<p>Trial — misconduct of — jury — evidence — verdict — parties.</p> <p>Misconduct not appearing upon the record of the trial such as communications with the jury is grossly improper but it may be disregarded by the court on a motion for a new trial unless it is of such a character as to affect a substantial right of a party to a fair, impartial and public trial of the case according to the evidence.</p> <p>The exhibition in the jury room of a coat worn by a party immediately after the commission of an alleged act of adultery, and also worn during the trial and while on the witness stand and which was called to the attention of the jury by having her arise to give the jury a view of it, is not such an act as can be said to have affected the verdict and is therefore not prejudicial.</p>

<p>Replevin — when replevin will not lie to recover possession of written instrument — real property — pleading — damages.</p> <p>Replevin will not lie to recover possession of a written instrument creating' in plaintiff a life estate in certain premises, where the execution and the delivery of the instrument are put in issue by defendant’s denial, as a finding that the instrument was in fact executed and delivered determines the title to the real estate in question.</p> <p>The fact that plaintiff because of her inability to recover possession of said paper seeks to recover as damages her expectant expenses to be incurred in prosecuting an equity action to establish her title to a life estate is an admission that the real purpose of the replevin action is to determine her claim to the real estate, and the complaint must be dismissed.</p>

<p>Civil Service Law — provisions of section 22 of — who entitled to peremptory writ of mandamus — appointments—■ municipal service — city of Niagara Falls.</p> <p>' The word “ held ” in the provision of section 22 of the Civil Service Law that “ If the position so held by any such honorably discharged * * * volunteer fireman shall become unnecessary or be abolished * * * the said honorably discharged volunteer fireman holding the same shall not be discharged from the public service, but shall be transferred to any branch of the said service for duty in such position as he may be fitted to fill,” etc., includes a probationary as well as a permanent occupancy of the position.</p> <p>Where before the expiration of the probationary period for which relator, an honorably discharged volunteer fireman, was appointed to the position of foreman in the street department of the city of Niagara Palls, the position was abolished, resulting in his discharge from the city employment, he is entitled under section 22 of the Civil Service Law to a peremptory writ of mandamus providing for his transfer to some new position for which he is fitted.</p> <p>Upon again entering upon his duties in said municipal service relator will still be a probational employee entitled as of right to complete the unexpired portion of the probationary period, at the end of which he may be peremptorily discharged.</p>

<p>Treaties — construction of —■ when courts will take judicial notice that a. state of war exists between United States and Germany — actions — when subject of Germany may sue in our courts — contracts.</p> <p>Corporations — when corporation controlled by German citizens is entitled to sue on debts contracted in time of peace — who are not alien enemies—'treaties — injunctions — motions and orders.</p> <p>The courts will take judicial notice that on April 6, 1917, by proclamation of the President, a state of war was formally declared to exist between the United States and the Imperial German Government.</p> <p>Under the treaty of 1799 between the kingdom of Prussia and the United States, which was affirmed by the treaty of 1828, and which provides that if war should arise between the two contracting parties the merchants of either country then residing in the other shall be allowed to remain nine months to collect their debts, settle their affairs and depart freely, a subject of Germany may sue in our courts provided he is a resident here and entitled to the protection extended by the President’s proclamation.</p> <p>A New Jersey corporation is a distinct entity and notwithstanding its practical control and ownership by a German corporation or by German citizens in control thereof is a citizen of the state of New Jersey and is entitled to the privileges and immunities of all citizens of the United States.</p> <p>The said corporation did not upon the declaration of war between the two countries become an alien enemy and is entitled to sue on debts contracted in time of peace.</p> <p>A motion to restrain pendente hello the prosecution of an action for debt brought by said corporation upon the ground that it was an alien enemy and, therefore, is persona non standi in judieio denied, with costs.</p>

<p>Insurance (indemnity)—-contracts of — contents of policy of — actions —pleading— judgments — negligence—-when motion for judgment on the pleadings denied.</p> <p>Though a contract of indemnity insurance confers upon the insurer the exclusive power to control the defense of an action brought against the insured for personal injuries, there is an implied obligation on the part of the insurer to exercise good faith and fair dealing with the insured to fulfill the contract.</p> <p>Defendant issued its policy of insurance whereby it agreed to indemnify plaintiff against any loss or expense not exceeding a certain amount arising from any claims upon plaintiff for damages on account of personal-injuries suffered by any one as a result of accident during a certain definite period. The policy contained the usual clauses forbidding the insured without defendant’s consent to settle or adjust any claim asserted against it, or to interfere in any manner with defendant’s defense of an action brought upon such claim. The complaint, in an action by the insured against the insurer for its refusal to consent to the settlement and adjustment of a claim for which an action was brought against the insured by one who had sustained serious injuries on property owned by the insured, in which action judgment was recovered against plaintiff herein, which it paid, considered, and held sufficient, and a motion by defendant for judgment on the pleadings will be denied as, against a demurrer, the allegations of fact were sufficient upon which to predicate the bad faith of defendant.</p>

<p>Pleading — complaint — in action to foreclose mortgage — judgments — parties — deficiency —■ mortgages — when demurrer sustained.</p> <p>The interest of an heir at law of a deceased mortgagor in the mortgaged property is subject to be wiped out by a judgment in foreclosure and, in ease of a deficiency, judgment may be entered against the administratrix of the deceased mortgagor, she having been made a party to the foreclosure action, and collected out of property coming into her hands in due course of administration.</p> <p>Where the complaint in an action to foreclose the mortgage sought to obtain judgment for deficiency individually against the widow and next of kin of the deceased mortgagor, who was personally liable for the mortgage debt, a demurrer by one of the heirs at law of the deceased mortgagor will be sustained.</p>

<p>Awards — when, cannot he sustained — in street opening proceedings — condemnation proceedings — statutes — Greater New York Charter, § 988 — municipal corporations — when application for award granted.</p> <p>While a statute requiring the application of an award in a street opening proceeding towards the payment of an assessment for benefits is valid, a statute which deprives one person of interest on an award for property taken and allows it to other persons, or which requires one property owner to pay his assessment the day it falls due and even before it becomes a lien, and grants to others sixty days thereafter in which to make their payments, is both unjust and invalid and cannot be sustained.</p> <p>The provision of section 988 of the Greater New York Charter (Laws of 1915, chap. 606) which, in street opening proceedings, gives the city the right to set off assessments against awards making the set-off effective as of the date the assessment was entered for collection, is as to an owner who receives an award, which under section 981 of the charter carries interest from the date of the report, and who is also assessed for benefits, unjust and illegal, as he is treated differently from an owner who merely receives an award or is merely assessed, in that he is deprived of interest to which every other owner of an award is entitled and is obliged to pay at least so much of his assessment as the award will pay, as soon as it is payable, though other owners who are merely ■assessed are given sixty days of grace without incurring any additional liability.</p> <p>Though at the time of the maldng of the awards and the assessments in a street opening proceeding instituted by the city of Hew York a certain person was the owner of certain property taken and assessed both the award and the assessment were made in the name of “ unknown owners.” Later petitioner became the owner of the award and of the property covered by the assessment and still later he sold the property subject to the assessment. Held, that on his application for payment of the award the city was not entitled to have the award applied in partial payment of the assessment for benefit laid against the property which belonged to his predecessor in title.</p>

<p>N egligence — liability of hospital — automobiles —1 pleading — verdict — municipal corporations — when motion to dismiss complaint denied.</p> <p>The defendant maintains a hospital in which the poor are treated without charge and others, who can, are required to pay. Plaintiff, who was neither a patient nor a beneficiary of defendant, was injured while riding in an automobile which was run into by an ambulance belonging to defendant in charge of its chauffeur. Held, that defendant was liable, though at the time of the accident the ambulance was responding to a call sent in by the police department, for which service defendant received pay from the city.</p> <p>Motions to dismiss the complaint and for the direction of a verdict in favor of defendant, on which decision was reserved, denied, and a general verdict for plaintiff directed on special verdict of the jury.</p>

<p>Mandamus—peremptory writ of — when motion for, denied—■ Agricultural Law, § 222.</p> <p>Where the certificate filed by the manufacturer of a product known as “ stonemeal ” to be sold as a fertilizer, on his application to the commissioner of agriculture, under section 222 of the Agricultural Law for a license to do business in this state, shows that said product contains no nitrogen, no available phosphoric acid, no acid treated phosphate and no water soluble potash, but gives the analysis of the product showing that it is made up entirely of inorganic material, a motion for a peremptory writ of mandamus to compel the issuance of the license will be denied.</p>

<p>Injunctions — pendente lite — when granted — chattel mortgages —« executors and administrators — Surrogate’s Court.</p> <p>A copy of a chattel mortgage given in 1914 was seasonably filed in the proper clerk’s office, and the mortgage was refiled in 1915, but not in 1916. Held, that though the mortgage was invalid as against the creditors of the mortgagor, his administratrix, who was in possession of the mortgaged chattels, some of which were included in the inventory of the estate filed in the Surrogate’s Court, will be granted an injunction pendente lite in an action to permanently enjoin the enforcement of the mortgage.</p>

<p>Pleading — allegations of complaint — in action by bank to recover amount of overdraft — banks — demurrer.</p> <p>In an action by a bank to recover the amount of a depositor’s overdraft due to the issuance of a Hew York draft which exceeded the amount of his account, the complaint need not allege his promise to pay.</p>

<p>New trial — when motion for, not granted — verdict — evidence — Code Civ. Pro. § 999.</p> <p>Negligence — what presents question of contributory — railroads — when verdict will not be disturbed — trial.</p> <p>A motion for a new trial under section 999 of the Code of Civil Procedure will not be granted upon “ exceptions ” unless they relate to matters which affect a substantial right of a party, or on the ground that the verdict is not supported by the evidence, unless the evidence is insufficient as a matter of law to sustain the verdict, or on the ground that the verdict is against the weight of evidence where there is a conflict of evidence upon which reasonable minds might differ.</p> <p>The construction of a platform or sidewalk approach to a station with the edge so close to the rail that the bumper beam of an engine overhangs about four inches beyond the edge of the platform, the operation of an engine along the platform to the station at a high rate of speed and the maintenance of the platform so as to allow water puddles to accumulate upon it requiring a person using it to go around the puddles which would bring him close to the edge of the platform, if he passed to the left approaching the station, presents a question of negligence for the jury on the part of the railroad upon which reasonable minds might differ and their verdict will not be disturbed.</p> <p>The use of a sidewalk or platform as an approach to a railroad station by a person going to the station, who, to avoid a puddle of water on the platform, walks so close to the edge of the platform as to be struck by the overhang of the bumper beam of an engine approaching at a high rate of speed from the rear, while a passing freight train is making considerable noise, presents a question of contributory negligence for the jury upon which reasonable minds might differ and the verdict will not be disturbed.</p>

<p>Wills—■ holographic — when entitled to probate — what is sufficient to pass real estate.</p> <p>A holographic will reading: “ I request all my belongings, moneys, bonds and insurance to be left to my wife,” etc., is sufficient to pass real estate owned by testator at his death, and is entitled to probate as a will relating to both realty and personalty.</p>