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All Reporters → ad → Volume 116

Opinions in ad Volume 116

More than twenty years had elapsed since tne accruing of the liability of Solomon Deyo, prior to the commencement of the action. The bar of the Statute of Limitations is sought to be avoided by certain payments of interest made by Solomon Deyo during the years from 1899 to 1903. The sole question for determination is as to the effect of these payments of interest as being such a renewal of the obl...
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The plaintiff, and defendant are -both domestic corporations. Prior to December, 1905,' the -plaintiff’s incorporators were doing work as a copartnership under the name of Quayle & Sons. Plaintiff obtained title to its’ cause of action by assignment from tiffs copartnership. In -1904 the defendant had secured certain .contracts with the. State for-public printing. Part of the work to be performed ...
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The/original enactment of the Legislature in regard to penalties , for unlawful use .of - milk cans, is found in chapter 295 of the Laws óf 1865. The material part of said, act is as follows: “ Any person offending, against .the provisions ■ hereof shall be liable to a penalty of twenty-five dollars for each and every milk can so taken, tised, sold, disposed of, bought Or trafficked in for the fir...
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The agreement was not in writing and is not alleged by the Complaint to have been unwritten, hut the complaint alleges that the defendant repudiated the agreement and deprived the plaintiffs of the benefit of it, and then alleges their services and the items furnished under the agreement, and the bill of particulars emphasizes these provisions and shows definitely the particular items sought to be...
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By agreement of October, 1901, the Harder Knitting Company and the five stockholders and directors of said company, the parties of the first part, sold its property and business and the capital stock of said company to one “ Holsapple * * * or any person or corporation that he may designate ” as party of the second part, and agreed, among other things, not to engage in the manufacture of shirts or...
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It is apparent that the property was offered for sale at $4,000 and that- the sale was really made at that price, but by collusion between the plaintiff and Newell the price was fixed af$6,000 .to the defendant Richards, and lie was induced to give the note in suit ' by tlie false representations and. suppression of the facts by Newell and the plaintiff. The $2,000 cheek which the defendant Richar...
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The franchise tax imposed under section 182 of the Tax Law (Laws of 1896, chap. 908) is not a tax upon the earnings or property of the corporation, but in the case of either a foreign or a domestic corporation is upon the “ mere intangible right to exercise a franchise.” (People ex rel. United States Aluminum P. P. Co. v. Knight, 174 N. Y. 475, 485.) In that case such a tax against a foreign corpo...
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The plaintiff’s exception to the refusal of the court to adow an expert to testify as to the .usual way in which a counterpoise is *35placed upon such a machine was well taken. The evidence in the case tended to show the defendant negligent in the manner in which the counterpoise was placed. As there is to be a new" trial we will refer to two other matters which came up on the trial. The allegatio...
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It is not apparent, just how the amount of this bond issue was arrived at nor is it material. The purpose thereof is to relieve individual property owners of a portion of the assessments which have been levied against their property for this public improvement, and which assessments, under the provisions of the city charter, are liens against their property, and are concededly enforcible against t...
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The plaintiff has recovered a verdict for' personal injuries due to the defendant’s negligence. A single occurrence during the progress of the trial requires a- reversal of the judgment. Counsel for plaintiff asked the defendant’s superintendent this question : “ You have been transferred to another mill of this paper trust?” Defendant objected to. the term “ trustthe objection was' overruled, an ...
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Order appealed from affirmed, with ten dollars costs and disbursements upon the opinion of J. Eider Cady, referee. All concurred. The following is the opinion of the referee: Cady, Eeferee: bfo question of- fact has been seriously litigated before me and the. range of the case is narrow. The defendant was a domestic corporation organized under' the laws of the State of-blew York; It possessed and ...
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• Upon the record the petitioner made a strong case for a certificate of necessity and convenience of a trolley road upon the route finally asked for. It is a fraction only over four miles in length. Its construction would cost a little over $60,000. It was to be financed by citizens of Ticonderoga who were substantially unanimous in their testimony that it was desirable and necessary. The conclus...
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The regular annual meeting at which directors of the Co-operant , Telephone. Company should have been chosen in 1905 was held on the thirteenth day of ¡November. The election was not then held, by reason of the fact that the notice required by the statute had not 'been served. Subsequently a.meeting was called, to be held upon the 20th day of December, 1905, for the election of directors, ¡Notice ...
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Plaintiff’s principal contention upon the trial was that the policy in question was made out by Stevens, defendant’s agent, in the name of plaintiff’s husband, with full knowledge that the personal property included therein belonged to the husband and the real estate to plaintiff. Knowledge of this fact was denied under oath by the defendant’s agent. To prove her case, plaintiff produced a witness...
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Under section 62 of the Bailroad Law (Laws of 1890, chap. 565, as amd.) the Delaware, Lackawanna and Western Bailroad Company instituted this proceeding before the Board of Bailroad Commissioners for the purpose of changing a' highway which crosses its railroad at grade near its station of Vestal, in the town of Vestal, Broome county, so that said highway may pass beneath the tracks of said railro...
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The action is on the official undertaking of the defendant Poods as former supervisor of the town of Hadley. The other defendants are the sureties on such undertaking. The alleged breach of the undertaking is among other things-that the supervisor did-not pay over and account for the local school fund which came into his hands. The defendants demurred on the following grounds: “ First, that it app...
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The defendants have demurred to the complaint for a defect in parties defendants and for insufficiency. The action is against the sureties on an official undertaking. We agree with the learned trial justice that it was not necessary to join the commissioner of highways as a party defendant with the defendants who executed the undertaking as his sureties. The undertaking given is in form joint and ...
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The appellant has been incorporated as a steam railroad company. It operates such a railroad from Port Kent to Keeseville, a distance of about six miles, connecting the village of Keeseville with the main line of the Delaware and Hudson Railroad Company. Its Keeseville station is located near the village limits. Desiring to extend its road -within the village of Keeseville the appellant made appli...
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This action was instituted to foreclose a mortgage covering real estate in the counties of Franklin, Essex and St. Lawrence. The usual judgment of foreclosure and sale in respect to.the mortgaged premises has been granted except that the judgment adjudicates that an undivided twenty-five-thousand sixty-seven-thousand-onelmndredths of four thousand acres of such real estate in said county of Frankl...
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Judgment has been entered herein directing the foreclosure and sale of the property of the Oneonta, Cooperstown and Richfield Springs Railway Company under ■ a mortgage for the sum of $1;500,000 executed by said railway company to the plaintiff as trustee for the benefit of the bondholders of said company. The respondents, Henry W. Bean and others, constitute a reorganization committee of certain ...
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, . The subject of this action is a promissory note for the sum of $300 executed by the defendant and her husband as makers to -the order of the plaintiff and payable on demand with interest.» The defense is that as between the plaintiff aiid defendant the note was without consideration. Defendant’s husband died prior to the commencement of the action. It is unquestioned that as between him and th...
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Where interrogatories are allowed which are clearly irrelevant and are for some ulterior or improper purpose, the court on appeal may disallow them. (Walton v. Godwin, 54 Hun, 387 ; Hemenway v. Knudson, 21 N. Y. Supp. 679 ; Gilpin v. Daly, 12 id. 448) Those cases disregarded the suggestion in the prior case of Uline v. N. Y. C. & H. R. R. R. Co. (79 N. Y. 175) that an order allowing interrogatorie...
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It is urged by the relator that the final order in the mandamus proceeding is- res judicata betvveen the parties and by the defendants that as that was made at the close of the relator’s proofs it was simply a nonsuit and not a determination upon the merits. From *92the view we take of the case it is unimportant which of' these contentions is'right, for it is entirely clear to ús, as decided by-th...
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The proceeding is one in form to require an attorney to pay over moneys alleged to have been received by him which belonged to his client. The moneys in question are alleged to have been received by the defendant ten years ago. It appears that the petitioner and his son, who was then an infant but who is now twenty-nine years of age, were tenants in common of certain real estate, and that the defe...
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The relator is a foreign life insurance corporation. It' procured a certificate from the Superintendent of Insurance of this State authorizing it to transact the business of life insurance therein, on January 1,1904, and has ever since been engaged in tins State in the prosecution of such business. On the 7th day of April, 1905, it made its report to the Comptroller of the gross amount of premiums...
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The plaintiffs have recovered a judgment against the defendant for its alleged negligence in causing the death of plaintiffs’ intestate, who was a lineman in its- employ. The defendant is engaged in furnishing electric light, heat an'd power to the villages of U.nadilla, Sidney and Bainbridge. Its power house is about one mile above Sidney ; its wires run from the power house to Bainbridge, about ...
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This proceeding is prosecuted - by the relator on the theory that. there had been 'a complete canvass of the votes cast at the town meeting in question and that there, had been a failure on the part of the town -officers presiding at the town meeting' to make and file a .statement of the result thereof. At such -town .meeting the defend-, ant John K. Carson and the relator William Sturtevant were ...
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It is claimed by the plaintiff that the action is brought under the. Employers’ Liability Act (Laws of 1902, chap. 600) and section 81 of the Labor Law (Laws of 1891, chap. 415, as amd. by Laws of 1899, chap. 192, and Laws of 1904, chap. 291), and the case was submitted to the jury by the court as having been brought under those acts. It is claimed by the appellant that the complaint was not suffi...
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(concurring) : • iThis. case has been twice tried. The first trial resulted in a verdiet for the plaintiff of $1,000. ' This judgment was set aside by this, court by reason of an error in the charge of the trial judge. Upon á retrial the jury rendered a verdict for $6,500. From the judgment entered upon this verdict and' from an" order denying defendant’s motion for a new trial this appeal is take...
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The appellant’s contention that the action is for false imprisonment as well as for malicious prosecution is not well founded. The action rests solely upon the charge that the plaintiff was arrested on a process at the instigation of ' defendant, upon a false charge, and without just and probable cause. The allegation that the defendant, without just or probable cause, made complaint against. the ...
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. Primarily an application for a warrant of attachment should be based on legal evidence. Hearsay evidence is substituted therefor only in cases of necessity, and the courts have been strict where stich necessity exists that the source of the evidence be given.as well as the reason why primary evidence is not furnished. “ Where a party alleges upon information and belief, and states that the sourc...
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The parties clearly and.unequivocally stated in .their contract that “ by rice anthracite coal is meant that which will pass through a finch mesh and over a 3/16th inch mesh.” There could be no mistake as to the size of the coal which they intended to describe. They expressly stated their meaning. And it was on coal of this particular size that the guaranty in question was based. It appears uncont...
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The last defense set up in this answer is substantially this: That the plaintiff was rightfully discharged, because for a long time previous thereto he had “ persisted in a course of conduct antagonistic to •defendant’s * * *-• superintendent, injurious to and destructive of the discipline among the employees at defendant’s said works.” Ho further facts are given ; no other or more specific statem...
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The certificate which is required to be annexed to the payroll in' order to authorize payment to Lazenby, and to wlpch thé mandamus herein refers, is to this effect: That he, Lazenby, “ has been appointed in pursuance of law, ahd of the rules made in pursuance of law.” The civil service commission, being now of the opinion that Lazenby'was not in fact eligible to. the office when he was ^appointed...
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There is presented in this case the sufficiency of certain certificates filed with the board of elections placing in nomination Francis B. Shober for member of Congress from the seventeenth Congressional district. It seems that the seventeenth Congressional district is composed of several entire Assembly districts and portions of other Assembly districts, all of these Assembly -districts being inc...
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Quimby filed papers alleged to be sufficient to nominate him for member of Congress in the eighth Congressional district. These papers when produced disclose that some of the papers filed include not only a nominee for Congress in the eighth district, but a nominee for member of Assembly in the first district, and, therefore, they fall within the rule as laid down by this court in Matter of Bennet...
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There are three appeals from three separate orders of the Special Term affirming pro forma, the decision of the board of elections overruling objections. The conclusions at which we have arrived are: With respect to- the certificate .¡No. 1, which was the original nomination made by the Independence League and which contains the names of Breen and ¡Rosalsky in the. place and stead of Brady and McA...
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In all the matters in which William B. Logan was petitioner before the Special Term, it is unnecessary to decide any question except his right to institute the proceeding in the Supreme Court. Each of these matters presents the question as to whether a review of the action of the board of elections may be had on the petition of ,...
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In all the matters in which William B. Logan was petitioner before the Special Term, it is unnecessary to decide any question except his right to institute the proceeding in the Supreme Court. Each of these matters presents the question as to whether a review of the action of the board of elections may be had on the petition of ,...
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In all the matters in which William B. Logan was petitioner before the Special Term it is unnecessary to decide any question except his right to institute the proceeding in the Supreme Court. Each of these matters presents the question as to whether a review of the action of the board of elections may be had on the petition of an elector wlio did not file objections to the certificate, who was not...
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The State Commissioner of Excise presented a petition to a justice of the Supreme Coúrt praying for an order revoking and canceling a liquor tax certificate theretofore issued to Israel Cohen. The application was made under subdivision 2 of section 28 of the Liquor Tax Law, which provides,'in substance, that at any time after a liquor tax certificate lias been issued under the provisions of the Li...
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The'verdict in this action is against the evidence. The plaintiff testifies that he was driving slowly in an-easterly.direction on Ninety- ■ sixth street a-heavily loaded ivagon containing laundry material, and on approaching Third avenue he looked up and down and saw a car on the avenue at Ninety-fifth street; that he attempted to cross the '■ avenue and had nearly passed over the easterly or nor...
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The verdict of the jury in this case is against, evidence. The plaintiff sought to recover damages for personal injuries alleged to have -been sustained by reason of the negligence of the defendant’s servants in operating one of its cars on Forty? second street *156near First avenue in .the borough of Manhattan, in the city of New York. The plaintiff alone testified on his behalf as to the actual ...
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I concur on the ground' of error in the charge as stated’ in Mr, Justice Patterson’s opinion., Judgment and order reversed,'new trial ordered, costs to appellant to abide event....
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The relator, a domestic corporation, was assessed for th,e purposes of taxation for'the year 1904 at the sum of $940,000. That amount was made up by including within it the value of certain tangible personal property situate outside of the State of New York, but which the tax commissioners determined was taxable within the State. This personal property was valued at $770,000, and consisted of raw ...
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The plaintiff appeals from a judgment entered in his favor upon the report of a referee. The cause of action arose, out of the stipulations of an agreement entered into between the defendants, who were copartners, and' himself, which is set out in full as an exhibit .to the complaint. By the terms of the agreement it was provided that the plaintiff and one Howard L. Sills, in consideration of thei...
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The defendant was convicted of larceny of the sum of $1,800, the property of one Ensign or one Darrah, the proceeds of a note 'given *171to tíie defendant by Ensign for discount. It is undisputed thatDarrali owned a note made by one Beecher, of Hew Haven, Conn., dated June 23, 1902, and payable four months after date; that he delivered this note to one Sharp, with instructions to have'the note dis...
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The evidence upon which this conviction was obtained was as follows: One Simons, the complainant, testified that on the 14th day of June, 1903, he went with a companion to the defendant’s house on a social call; while there the defendant came in; that the defendant expressed regret that he had been unable to obtain some money, saying to tbe witness : “ I offered good security for it, but I was dis...
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' The tracks of the defendant from the Harlem river to the One Hundred and Twenty-fifth street depot are upon an elevated structure over Fourth avenue. The tracks cross the Harlem river on a bridge and then proceed on this structure to the depot. This structure is used exclusively for railroad purposes and upon it there are four tracks. The two westerly tracks are used for trains going from the de...
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The testator died in Asbury Park, in the State óf New Jersey, on August 17, 1904, leaving a last will and testament which wias admitted to probate by the Probate Court of Sussex county, N. J., and subsequently the surrogate of New York county granted .ancillary letters testamentary. • The only substantial question presented on this -appeal is, whether the surrogate correctly decided, Upon a prelim...
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The question presented is whether 500 bonds of the Pratt Con. solidated Coal Company, a foreign corporation, was property of the decedent within this State, at the time of his death. The decedent died on the 4th of August, 1905, a resident of' Birmingham, Ala. Prior to his death, a contract had been entered intp between two foreign corporations," the Pratt Consolidated Coal Company and the Pratt C...
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The plaintiff alleges his marriage with one Helen W. Swartwout on the 30th day of November, 1892 ; that since such marriage and until • the 22d day of June, 1899, the plaintiff and his wife lived and cohabited together;' that prior to and since the marriage the defendants have at all times exercised and exerted an influence and control over the mind of the plaintiff’s wife; that in or about the mo...
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The action is on a bond secured by a mortgage to recover the deficiency after a sale under judgment of foreclosure. The defendant Nellie McBeth owned a farm in the town of Bedford,.Westchester county, and the defendants on May 7, 1892, gave a bond for the payment of $6,500, secured by a mortgage upon the farm. . Subsequently the defendants conveyed the farm to one Judson, and in June, 1901, Judson...
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The defendant was a director in a corporation known as the .American Beer Cask Company, and was also its secretary and treasurer. This corporation kept an account in the plaintiff bank, the president of the' bank being a director. At a meeting of the directors on April 12, 1900, four directors being present, the question as to' borrowing money for the corporation was discussed, and it seems that i...
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The complaint alleges that the parties to this action were copartners; that thepartnership-expired by limitation on the 1st day of August, 1905; that thereafter, and on the 29th day of August, 1905, the parties entered into an agreement, a copy of which is annexed to the complaint. By that agreement the plaintiff released and relinquished all claims to the business, the entire rights and title to ...
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The plaintiff, as the assignee of one Gertrude Creighton, née Beckett, brought this action to recover from the estate of Mary J. Quackenbush for services alleged to have been rendered by her to the testatrix from 1888 to November, 1901. The plaintiff’s assignor was not related to Mrs. Quackenbush either by blood or marriage and that she, in 1888, at the request of Mrs. Quackenbush, left Jamaica, W...
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The defendant appeals from an interlocutory judgment overruling a demurrer to the complaint, upon the ground that it does not state facts sufficient to constitute a cause of action. The action is brought to set aside the transfer of certain personal property of one Bang, a bankrupt, upon the ground that it was in violation of subdivisions a and b of section 60 of the United States Bankruptcy Law (...
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This appeal'presents a single question, and that is the proper disposition to be made of a certain income derived from a fund created by the fourth provision of the will of Jesse Hoyt. The testator, by this provision of his will, gave to his executors in trust $1,250,000, for the use and benefit of his daughter during her natural life, and during that time the trustees were tó invest and reinvest ...
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On the 11th day of December, 1905, upon affidavits showing that the University Social Club occupied the premises No. 23 East Eighth street in the borough of Manhattan for lawful purposes, as a private club, organized “ to promote good fellowship among the members and for social intercourse among the members,” and that without warrant or other process or authority of law, the defendants, as members...
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The motion should have been granted unconditionally. The' action is to recover damages for personal injuries alleged to have been sustained by the plaintiff through.the negligence of the defendant. Issue was j'oined on the 31st day of August, 1903. At the time the motion was made the case was not upon the calendar and had never been placed upon the calendar, and issues of a later date in actions o...
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This action was brought upon a bond of indemnity issued by the defendant, intended to insure the plaintiffs, who were merchants, ■ against losses resulting from insolvency of their debtors, between the 28th day of August, 1901, apd the 15th day of October, 1902. 'The complaint alleges tile issuance of such bond in consideration of a premium of $300, and that during the period for which they were i...
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This action was brought under section 1638 of the diode of Civil Procedure, alleging that the plaintiff is the owner in fee simple absolute of certain property beyond the Twelfth avenue, as originally laid out, at Forty-ninth street in the city of blew York. She alleges that the defendants unjustly claim an estate in fee or for life to the property in question adversely to the plaintiff, and that ...
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The plaintiff was in the employ of defendant as an iron worker • on its elevated structure, and on the day of the accident from which he suffered injuries, was one of a gang engaged in drilling holes directly under the top girder of the track. A foreman had previously marked the places at which the holes were to he drilled. The plaintiff had been engaged in similar work in the immediate neighborho...
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This is an appeal from part of an order of the Special Term confirming the final report of the commissioners of estimate and. assess*253ment in street opening proceedings. There is hut one question involved, and that is the determination of the rival claims to an award for the damage to one parcel. The facts appear to be as follows : One Charles A. Stadler was heretofore the owner of a large parce...
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This is an appeal.from an order of the Special Term denying a writ of peremptory mandamus requiring the comptroller to pay *258the .balance allegéd to be due to the plaintiff from the city upon a contract for dredging. This contract was let after public advertisement and competitive bidding. By the provisions; thereof the proposals, the sjieeifications and the bid were all made part of the con- ' ...
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I concur with Mr. Justice Clarke in-the reversal of this judgment, The case was tried throughout upon the assuiinption that the *267action was to recover for a nuisaiice and was not based upon negligence. The court instructed the jury that “ since this is an action for nuisance, it is not necessary for the plaintiff to show, in the. first instance, the lack of contributory negligence "on the part ...
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The case was tried upon the theory that the "two defendants, landlord and tenant, were maintaining a nuisance, and that as a result of that nuisance plaintiff’s intestate was-injured. The court expressly charged the jury that the action was based upon a nuisance, and that it was not necessary, therefore, for the plaintiff to show lack of contributory negligence on the part of the deceased. To sust...
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Submission of a controversy on an agreed statement of facts.' Plaintiff agreed to sell and defendant agreed to buy a piece of property on Hiiith street in the city, of New York., The contract provided that the plaintiff should give a proper, deed containing a general warranty and the usual full covenants conveying and, assuring the fee simple, free from -all incumbrances, exbept a specified mortga...
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The controversy in this -action concerns the 30th clause of the will of Hudson Hoagland,- who died on January 30, 1904, leaving a will which had been executed on ¡November 16,1903, with a codicil 'bearing date December 9, 1903. By the earlier clauses of his will he had disposed of a very considerable sum of money which he had. left in the main to nephews and nieces and grandnephews and grandnieces...
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The defendant was the general contractor for the erection of the St. Regis Hotel at the corner of Fifty-fifth street an cl Fifth avenue in New York city. Plaintiff was the lessee and occupant of the adjoining house on Fifty-fifth street. The house was an expensive one, renting for $6,000 ]ier annum. The plaintiff had furnished it handsomely and had expended a considerable sum upon its decoration, ...
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The defendant is the owner of a building in New York city having two entrances, one on "Wooster street and one on Spring street. There are two elevators, the- one on the Spring street side being distinctly a passenger elevator, and the one on the Wooster street side being a freight elevator for the use of the tenants in the building in sending out and receiving packages of merchandise. Two sides o...
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This is an action upon a life insurance ^policy upon the life of one John Carmichael, and the defense is that the. assured made such false answers and warranties in his application as to invalidate the policy. The policy was issued on July 1, 1903, and was based upon an application signed by the decéased on June 7, 1903.- He died on September 2-3, 1903, of. hemorrhage induced by laryngeal cancer. ...
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This appeal brings up for consideration only the third cause of action contained in the complaint, upon which alone the plaintiff has recovered. In the cause of action, after setting forth the death of Peter Marie, and the appointment of defendants as his executors, the plaintiff alleges : That she was prior to the death of said Peter Marie the owner of six bonds of the Chicago Gas LighhCompany an...
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This is an action for personal services. Plaintiff is a cousin of defendant, although a good deal younger than he. When she was about nine years old, living with her mother and stepfather in Bohemia, the defendant, who was married and established in New York city as a butcher, wrote to plaintiff’s mother suggesting that plaintiff should cometo this country and live in- his family. Both parties agr...
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Plaintiff sues for goods furnished, alleging that they were sold to defendant at her request, and that she agreed to pay for them. In addition to a general denial the defendant interposed two defenses. One alleges that she was, at the time mentioned in the complaint, a married woman, living with her husband, as plaintiff well knew, and that the goods were sold and delivered with and on the faith a...
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The order for examination, which the order appealed from refused to vacate, is addressed to Frank FL Doubleday, president, and Samuel A. Everitt, treasurer, of the defendant corporation. It does not purport to require the company to be examined, but runs against its officers individually. It has recently been decided by this court that there is no authority for such an examination of an officer of...
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The plaintiff sued for an absolute divorce, alleging adultery on the part of the defendant. The -latter answered; denying the adulteries charged against her," and by way of - defense aiiid counterclaim charged the plaintiff with adultery, and demanded k divorce in' her favor. These charges were denied by the reply.. The cause was sent to a referee who, after taking testimony on behalf of each part...
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In pursuance of a judgment of foreclosure and sale, the mortgaged premises were sold at public auction on May 22, 1906, by a referee appointed in said judgment. At that sale the appellant bid for the property $13,100, and the property was sold to him for that amount. He executed a memorandum of sale as follows: “I, Newman Grossman, have this 22nd day of May, 1906, purchased the premises described ...
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The plaintiff was a passenger on a north-bound car on defendant’s Lexington avenue line. By his complaint he alleges'that after having notified the conductor that he desired- to . alight at Forty^ second, street, he proceeded to the rear platform fpr the purpose of so doing; and that after the car had been slowed down at that point it gave a sudden- and violent start, which threw him from the plat...
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The plaintiff’s intestate, an employee of defendant, with others, under one Charles as foreman, was engaged at the time of the accident in installing a telephone system along defendant’s elevated railway on Third avenue in the vicinity of Seventy-second street. The telephone wires were to be contained in a lead cable which was suspended from the longitudinal girder. In placing hangers for this ' c...
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Alexander Dodin died seized of two parcels of real estate, one known as the “ Homestead ” property and the other, as the' “ Avenue C ” property. He left a will by which the Avenue C property was- devised to his. children as a párt of his residuary estate. The homestead property he gave for life to his wife, who is now deceased, with power to sell the whole or any- part of it “ as- she may deem'to ...
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The plaintiff is a veteran volunteer fireman of the village-of Greenbush in this State, and as such entitled to a certain preference in appointment and employment under chapter 184 of the Laws of 1898 (amdg. Laws of 1888, chap. 119, § 1) and under section 21 of the Civil Service Law (Laws'of 1899, chap..370). In July, 1896, he passed the necessary civil service examination and was placed upon the ...
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When this case was before this court upon a former appeal (104 App. Div. 416), while the judgment was reversed for an erroneous refusal to charge, much doubt was expressed whether the plaintiff had successfully sustained the burden of showing his own freedom from negligence. His evidence in the present record is even more unsatisfactory upon-that point, and the evidence as to defendant’s negligenc...
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'The action is for damages for the detention of a do[g, the property of the plaintiff,' which had been intrusted, to defendant- for .medical treatment. The complaint alleged plaintiff’s ownership of - the dog ; that' it had been in defendant’s possession, and that defendant-' detained it from plaintiff. The value of the dog is alleged, and judgment is, asked- for the recovery of the possession; of...
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Defendants’ testatrix, Esther B. Marks, was, on September 30,1897, the owner of seven lots on East One Hundred and Thirty-eighth *342street, in the city of New York, and on that day executed the contract upon which this action is brought. That contract, which was apparently upon a printed form, contained some blanks which were not filled up, but, ás it is, it sufficiently embodied the agreement. I...
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•The plaintiff has obtained an injunction pendente Ute restraining the defendant, the New Amsterdam Gas Company, from discon*346tinning, cutting off or refusing to supply him with gas, and from removing his gas meter and other appliances for the supply of gas, because of plaintiff’s refusal to pay more than eighty cents for each 1,'000 feet óf gas consumed upon the premises. The complaint upon whi...
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•The plaintiff has obtained an injunction pendente Ute restraining the defendant, the New Amsterdam Gas Company, from discon*346tinning, cutting off or refusing to supply him with gas, and from removing his gas meter and other appliances for the supply of gas, because of plaintiff’s refusal to pay more than eighty cents for each 1,'000 feet óf gas consumed upon the premises. The complaint upon whi...
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The action is brought to compel the -removal of a stone stoop and steps and a railed areaway in front of Nos. 1424 and 1426 on the easterly side of Broadway in the city of New York, between Thirty-ninth and Fortieth streets, erected and maintained by the defendants, on the ground that they constitute a public nuisance in that they are encroachments upon the street. The stoop extends into the sidew...
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Each defendant demurred tó the complaint on the ground that causes of action were improperly united. The court at Special Term so held and plaintiff appeals from the interlocutory judgment. The complaint charges in substance that the defendant MacFadden, at the times stated, was doing business under the name of • “ Physical .Culture Publishing Company,” and was the owner and publisher of certain m...
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On the 8th of July, 1903, the plaintiff entered into a'contract with the department of street cleaning of the city: of New York to put Upon certain scows at various dumps, garbage from the city and to. permit plaintiff to select therefrom and appropriate to his own use, rags, rope, wood, metal and certain other substances, plaintiff paying for such privileges, in addition to doing the work, the, s...
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The defendants in their separate answers plead certain accounts heretofore made as a defense. We are of the opinion that in pleading said accounts the defendants properly conformed to the provisions contained in the 1st paragraph of section 531 of the Code of Civil Procedure, in which it is set forth that “ It is not necessary for a party to set forth in a pleading the items of an account therein ...
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This is an appeal from an order of the Special Term denying a motion to resettle an order previously granted by the Special Term allowing the plaintiff to make and serve an amended complaint. An appeal from the original order allowing the amendment was submitted upon, the same day as the appeal now under consideration. Upon that appeal the first point made by the' respondent was, “ The order not r...
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In this action the plaintiff seeks a decree annulling his marriage with the defendant on the ground of her physical incapacity. to enter into the married state. After the defendant had interposed an answer, in which she denies that allegation, the’ plaintiff moved for an order requiring her to submit to a physical - examination. On the hearing "of that motion the defendant showed that she had alre...
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The relator applied to the Supreme Court for a peremptory or alternative writ of mandamus, directing the respondent to restore him to his rights, privileges, immunities and benefits as a member of the respondent corporation, which is a fraternal benefit society incorporated under, the laws of the State of New York. He sets forth in his petition that he had been itnlawf ally expelled from that soci...
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This is an appeal from an order denying a motion to change the place of trial of this action from the county of New York to Mon- . roe county. The application seems to have been made on the ground -of the convenience of witnesses. The pleadings are not contained in the moving papers, but from the affidavits it would appear that the action is for goods-sold and delivered on two alleged contracts of...
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The widow and children of the decedent, Ferdinand Hirsch, presented a petition co the surrogate alleging that the said Ferdinand Hirsch died on the 13th of July, 1901, leaving a last will and testament, which left substantially all his estate to his executors, in trust, for certain purposes specified in the will. The will appointed one of the petitioners, Minnie F. Hirsch, the widow of the decease...
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This appeal was taken before the final order was entered revoking the letters testamentary and removing the appellant as trustee. As we have concluded to affirm the decree of the surrogate revoking the letters testamentary (Matter of Hirsch, No. 1, 116 App. Div. 367) this appeal becomes unimportant. The respondents move to dismiss the appeal on the ground that after the appeal was taken buj; befor...
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The opinion delivered by the learned justice who wrote for the Court of Special Sessions discusses- the constitutional infirmity of the clause of the statute upon which the prosecution is based so satisfactorily.that vre adopt it as the opinion of this court.* It would be necessary to add nothing to it, were it not for the fact that in the discussion which has been had' a confusion seems to have a...
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The questions arising in this case are the same as those presented in the case of People v. Williams (116 App. Div. 379), decided herewith ; and for the reasons stated in the prevailing opinion in that case the order appealed from is affirmed. Present — Ingraham, McLaughlin, Clarke, Houghton and Scott, JJ.; Ingraham and Houghton, JJ., dissented. Order affirmed. . Order tiled....
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■ This action is in ejectment. The plaintiffs allege that they are the owners in fee and are entitled tó the immediate possession of an undivided one-half interest in certain real property in the city and county of New York, particularly described in the complaint; that the defendants were wrongfully in possession of said premises, claiming under a lease from one Mary M. Flynn; that the said Mary ...
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On August 2, 1921, members of the State police made a search of an automobile operated by one Frederick Bloomingdale, and finding in the car a quantity of intoxicating liquors, seized the same, placing the owner of the car under arrest. Later the officer applied to this court for signature to a document which they termed a search warrant, and which was in the usual form of such process, asserting ...
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I agree to the proposition that national banks cannot engage in the business of guaranteeing obligations of third parties, and that stick contracts are ultra vires. I think, however, by.fair intendment and inference, plaintiff’s complaint alleges that the Cooper Exchange Bank loaned $12,000 to Samuels, at theijoint request of himself and this defendant, for the purpose of enabling him- to pay to d...
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The action was brought to recover upon an alleged contract by which the defendant agreed to pay to one Robert F. Bixby,'individually and as trustee, a part or proportion of the taxes which should thereafter in each year be assessed on certain demised premises, which' had been leased by Robert F. Bixby individually and as trustee to the defendant. The complaint alleges that on' June 13, 1888, the s...
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This action was brought to foreclose a second mortgage upon certain premises owned by tbe Glengariffe Realty Company, the mortgagor. There were made parties defendant to this action James F. A. Clark and others, as survivors of the firm of Clark, Ward & Co., in liquidation, as persons having, or claiming to have, some interest or lien upon the mortgaged premises, which had accrued subsequent to th...
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Plaintiff commenced action No. 1 to recover two installments of an agreement to purchase certain stock of a corporation which had become due at the time the complaint was verified on the 28th of January, 1904. Before the plaintiff was able to serve the defendant the other two installments to be paid for this stock became due and thereupon the plaintiff commenced a second action to recover the rema...
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This action is brought to procure a judgment of divorce on statutory grounds. The answer denies'the adultery'alleged, and sets up as. a separate and distinct defense that at the time of the commission of the alleged acts of adultery and for some time prior :and subsequent thereto the defendant was insane and by reason thereof incapable of knowing the nature or quality of acts committed by her. Aft...
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. The defendant was indicted for the crime of murder in the -first degree, for having shot in-.the back one Bobert" Brennan, who *427thereafter died from said wound. The defendant was a policeman and at the time of the shooting was in plain clothes and not on duty. The evidence offered by the People tended to establish that on the early morning of Sunday, May 8, 1904, the deceased entered the salo...
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The complaint alleges that the plaintiffs are bankers in the city of New York and the defendants cotton.manufacturers, at Amsterdam, 1ST. Y.; that plaintiffs agreed with the J. Freeman Brown Company, a mercantile and trading corporation, to make loans and advances to it from time to time, to be secured by the hypothecation arid pledge, among other things, of merchandise and the proceeds of the sal...
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The city of New York, for the purpose of sewering its twenty-third and twenty-fourth wards, or a portion thereof, provided for the construction of a system of sewers, to consist of a main branch and several lateral sewers emptying into it,, all of which .were delineated on a map or plan. After the map had been filed the city advertised for bids for the construction of the main sewer, extending in ...
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This case came before the court upon a. stipulation consolidating two actions — one brought by the plaintiff, a foreign corporation, against a firm known as.Hoagland &' Eobinson, to recover- the purchase price of cement sold and delivered, -and the other by Hénry ■ P. Eobinson, as the assignee of that firaq against the Atlas Cement Company, another foreign corporation, to recover damages for the a...
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1 The relator to review assessments- for the purpose of taxation in the year 189.9 on certain real estate in'the city of New York, *453obtained upon a petition a writ of certiorari. The real estate and the assessments thereon were 211-219 Bleecker street, $42,000.; 105 East Ninth street, $12,500 ; 744 Broadway, $175,000 ; and the petition asked that the assessments be reduced to $32,000, $10,000 a...
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This action was brought to determine the title to a triangular piece of land lying at the intersection of Westchester and Stebbins avenues, the plaintiff claiming that she was tile owner of the entire parcel, and each of the defendants asserting title to the whole or an interest in some part thereof. The court at Special Term found in favor of the defendants and the plaintiff appeals to this court...
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The action is brought upon a policy of fire insurance issued by the defendant to the Arlington Company (the plaintiff) and the Arlington Collar and Cuff Company, as interest may appear, loss, if any, to be adjusted with and payable to the Arlington Company. That company was the owner of a large plant used in the manufacture of pyralin, a substitute for celluloid goods, at Arlington, Hudson county,...
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The action was for malicious prosecution. The defendant at the end-of the plaintiff’s case moved to . dismiss the complaint,, which. *463motion was granted upon the ground that the plaintiff had failed to prove a lack of probable cause, and from the judgment entered upon that dismissal the plaintiff appeals. The complaint alleged —■ and the answer admitted — that the defendant charged the plaintif...
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The action is brought to recover damages to a freehold caused by the removal of fixtures. On the 29th day of October, 1902, the defendant, then being the owner of premises known as Mo. 5 East Twenty-sixth street in the city of Méw York, entered into a contract for a sale thereof to one J. Delmage Trimble. Trimble, on the day fol-' lowing, contracted to sell the premises-to one Gustav Baumann. Mo r...
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-This is an action in ejectment to recover an undivided one-seventh and undivided one-forty-second. interest in real property situated in the county of New York. ' On. the 1st day- of September, 1849, one James B. Shaw owned the premises in question in fee simple absolute and was in possession thereof. On that day he mortgaged the premises to secure the payment of the sum of $5,700- and the mortga...
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This judgment must he reversed; as the verdict in favor of the plaintiff was not justified by the evidence. It appeared that the plaintiff was driving a wagon or truck on the westerly side of Park avenue, above Fifty-ninth street, in the city of Rew York, and came into collision with a car of the defendant on the northerly' side of its track on Fifty-ninth street at the intersection of Park avenue...
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The plaintiff brought this action to recover the amount paid on a contract to purchase real property and the expense of examining the title. By the contract $18,000 of the consideration was to be paid by plaintiff taking the premises “ subject to a mortgage now a lien thereon to secure said sum, payable in about five (5) years, interest at 5^>.” When the parties met to complete this contract it...
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The action is in negligence for personal injuries, and was originally-brought against the defendant Anderson alone and issue joined by service of an answer by him. Thereafter the plaintiff learned facts which led him to believe that the respondent Bruning was also guilty of some act which led to the accident, and, without notice to him, he obtained an order making him a party defendant, with leave...
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The defendant was steering a disabled automobile which was being hauled by an attached rope- about ten feet in length, by another machine operated by steam in the charge of a chauffeur, A blockade of traffic was encountered and the two machines were - brought to a standstill near the curb", the rope resting on- the pavement. The plaintiff accompanied by her daughter endeavored, to .cross the block...
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.The plaintiff entered into an agreement in writing with the defendants, who are copartners, to serve them in the capacity of designer, pattern cutter and foreman for the term of twenty-one months at a stipulated weekly salary. The plaintiff continued in the employ of the defendants for a little over twelve months when, as he claims, the defendants wrongfully discharged him. He brings this action ...
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The plaintiff entered into a written contract with the defendant, described as party of the second part, and one Swart, described as party of the third part, whereby he- agreed in consideration- of $1,000 paid upon execution of the contract, and $4,000 thereafter to be paid, and a certain portion of the capital stock of a corporation thereafter to be formed (the other portions to be transferred to...
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The action is brought pursuant to the provisions of subdivision 4 of section 201 of the Public Health Law (Laws of 1893, chap. 661) as amended by chapter 667 of the Laws of 1900 to recover penalties for alleged violations of said act. Five causes, of action are set forth in the complaint. Each alleges the violation of the statute by the defendant as the proprietor of a store at Inwood-, in the tow...
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The material facts of this case bring it within the rule laid down in the opinion in State Board of Pharmacy v. Rhinehardt (116 App. Div. 495), argued and decided herewith, and upon the authority of. the decision therein the order is reversed, with ten dollars costs and disbursements, and motion for change of place of trial granted, without costs. Present — Patterson, P. J., Ingraham, Laughlin, Cl...
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The Federal Bank of Hew Y ark was a domestic moneyed corporation and the defendant is its receiver. The action is to recover two installments of rent payable in advance. The plaintiff obtained permission of the court to sue the defendant as receiver, and alleged in his complaint his ownership of the premises in question, the leasing of them to the Federal Bank of New York by written lease, at a st...
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Both defendants appeal from a judgment recovered against them in an action for damages for personal injuries alleged to have been sustained by the respondent through their negligence in maintaining a ráilway track and a roadway immediately adjoining such track in an unsafe and dangerous condition to pedestrians crossing the same. • ‘ • It appeared in evidence .that at about midnight on January 17,...
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The Constitution provides how judicial officers shall be removed. . 1. Judges of the Court of Appeals and justices of the Supreme Court by concurrent resolution of both houses of the Legislature. 2. All other judicial officers, except justices of the peace and judges or justices of inferior courts not of record, by the Senate on recommendation of the Governor. (Art. 6, § 11.) 3. Justices of the pe...
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' The defendant was convicted of the crime of an attempt to utter " a forged instrument, to wit, a forged certificate of stock of the Norfolk and Western -Railway Company. The principal witness for the prosecution was one Charles Augustus Set on,, á confessed accomplice, and the chief point relied upon by the appellant is-his claim that the testimony of the accomplice was not corroborated.by other...
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The surrogate has found that the executor was indebted to the estate-in a'large amount, evidenced by his, note for $10,984, dated November 9, 1899, playable on demand, which he did not include in the "inventory, and that snch omission was misconduct on his part. This finding is based upon an admission of the executor contained in an entry in an account book in evidence kept by him. Counsel for the...
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This action was brought by plaintiff January 25,1901, under section 29 of the. Domestic Commerce Law (Laws of 1896, chap. 376, as amd. by Laws of 1900, chap. 543) for the alleged unlawful detention of milk cans by the defendant J. Emmet Clark, said to be owned' by the above-named parties. The complaint demanded judgment for the penalty of fifty dollars each for seven milk cans. The defense was a g...
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If the entry and use were made by the, State with the permission of the owner there, would be an implied agreement on the part of the State to pay the fair value of the use and occupation. (Collyer v. Collyer, 113 N. Y. 448; Coit v. Planer, 4 Abb. Pr. [N. S.] 140.) A stranger to the title, however, could give no valid permission to such entry and use, and if, as is alleged, the State entered and i...
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It seems to be established by the authorities that where a landlord has reserved to himself for the common use of the tenants of a building any balconies, stairways or.steps he is bound to use ordinary care in keeping them in a reasonably safe and suitable condition for the common purpose for which they were reserved. (Peil v. Reinhart, 127 N. Y. 381; Dollard v. Roberts, 130 id. 269; Clarke v. Wel...
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We disagree with the contention of the appellants’ counsel that the Special Term was without power to amend the judgment under the circumstances presented here. The Court of Appeals, in affirming the judgment of this court, had settled the law of this case, that the commissioners of highways were improperly joined with their respective towns as plaintiffs in the action. If the Supreme Court, actin...
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The case on appeal was agreed upon by- counsel and presented by them to the justice who presided at the trial, who was then con-' fined at his home in his last sickness. He signed the order settling the case pursuant to such agreement. Shortly after the justice-died. The case had been prepared pursuant to the stenographer’s minutes by a clerk in the office of the defendant’s attorneys. When the'at...
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The contract was made September 27, 1902. By its terms the plaintiffs as parties of the first part thereto in consideration of one dollar, the receipt whereof was acknowledged, agreed to sell to the *536parties of the second part (defendants Ador jan and De Tonneay) the property, and-the contract then continued as follows: “I-n consideration whereof the said parties of the second part agree to pay...
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The Legislature by chapter 407 of the Laws of 1901 conferred jurisdiction on the Court of Claims “to hear, audit and determine ” the claim in question. Such statute provided that no judgment should be rendered against the State “ unless the facts proved shall *540make out a case against the State which would create .a liability were thé same established in evidence in a court of law or. equity aga...
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The appellant’s lien is filed for materials furnished a sub-contractor. The work was performed in the erection of' a high school *543building in and for Union Free School District No. 1 of the town of Schoharie under a contract made between said school district as owner and Austin Simkins, the respondent herein, as contractor. On the trial it appeared that after the making of the contract between ...
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By section 1773 of the Code of Civil Procedure this proceeding for contempt is specifically authorized in enforcement of a judgment ■directing the payment.of alimony. ' The case is, therefore., taken out .of the, rule -as to actions'generally prescribed by section 1241 of the Code, .This section, 1773,,was first inserted in our law in 1880, when the second part of the Code of Civil Procedure took ...
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By the will .of Bentley-J. Harris, who died in May, 18Í9, he gave . the ti.Se of "Ms property to Ins wife, Phoebe, for her life and the remainder to his children Addie A., Leonora and Carmi. In 1892 the mother was in a critical condition and it was necessary for her to submit to an expensive and dangerous suigical operation. She and her thr.ee children, the sons-in-law and daughter-indaw, were pre...
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Two questions are presented by these appeals, first, does the award fairly measure the damages sustained by the appellant Hoefner and which he was legally entitled to recover because of the improvement in question % and, second., was he legally entitled to recover damages to the buildings and fixtures situate on the Mill Race strip, the title to which was in the city of Buffalo, and damages result...
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This proceeding was commenced, so far as the appellant is concerned, by notice served by the corporation counsel of the city of Buffalo to the effect that oh the 3d day of June, 1901, application would be made for tlie appointment of three commissioners to ascertain the just compensation to be made to the owners of or persons interested in the property sought to be acquired, and pursuant to such n...
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We are satisfied that the facts found by the learned trial court are practically correct,, and, therefore, need not be repeated in this opinion. Upon such facts the question is presented, may a sub-agent of a life insurance company, in direct violation of his instructions in that regard, make a contract binding upon such company, which is in one or more of its essential features at variance with t...
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The only question presented hy this appeal is whether or not a defendant is entitled to costs absolutely as matter of law where, upon plaintiff’s motion, a verdic.t in his favor is set aside and a new trial granted upon the ground that the amount of damages awarded by the jury is insufficient. It has long been established by authority that such disposition as to costs when a new trial is granted u...
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Oil the 18th of December, 1900, the defendant issued its benefit certificate, whereby it agreed to pay to the plaintiff the sum of *566$2,000 upon the death of William. Marzhauser while a member of its order in good standing. •" Marzhauser died October 27, 1901, while a member of the order, and the action is to collect the sum due by the terms of the agreement. ’ ■ The case was in this court upon ...
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On the 2d of August, 1905, the above-named defendant sold to the plaintiff a ¡National cash register upon a written agreement for *569the purchase price of $100. The vendee was to pay therefor in weekly installments of $3.50, and the title to said register was to remain in the vendor until all the installments and payments bad been made, and, in. case of failure to make the stipulated payments, al...
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The plaintiff, as administrator of James W. Chappell, deceased, • commenced this-action, as his affidavit discloses, to recover stock certificates, bonds and other personal property or the avails thereof, which, it is claimed, belonged to said decedent at the time of his death, but which were fraudulently obtained by the defendant- and are concealed and withheld from the plaintiff. An order was gr...
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The order and decree appealed from should be. affirmed, with costs. ■ • It is provided by section 2481, subdivision 6, Code of Civil Procedure, that “A surrogate,, in court or out of Court, as the case requires, has power to open, vacate, modify or set aside, or to enter, as of a former time, a decree or order of his court; or to grant a new trial or a new hearing for fraud, newly-discovered evide...
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The judgment and order should be reversed'and a new trial granted, with costs to the appellant to abide event. The action is to recover a penalty for the delivery to a cheese factory of adulterated milk contrary to the provisions of section 23 of the Agricultural Law (Laws of 1893, chap. 338, as arnd. by Laws of 1901, chap. 429.) The milk was delivered October 30, 1903. It was claimed that it was ...
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The judgment should be affirmed, with costs. The action is in equity to determine.the interests of the plaintiff and the defendants McIntyre and Sessions in a fund of $900 in the hands of the defendant Drummer, trustee. In the year 1890 one James II. House became a member of the “Maccabees” by joining “Lumber City Tent, Ho. 93.” Mary C. House was his wife. She died March 21, 1904, and he died May ...
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The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. On the 15th of March, 1906, Alfred Tebo, while a bridgetender, died, and a vacancy thereby occurred in that office. Upon the death of Tebo the harbor master of the city, without the knowledge of the mayor, employed Michael O’Leary, who was on the then civil service list, to act as...
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The village of Warsaw is an incorporated village containing 3,300 inhabitants. Main street, its principal street, is six rods wide. In 1904 one Coloross owned a brick store of two stories with twenty feet frontage on the east side of that street, where he sold fruit, candies, nuts and popcorn. The front of the store contained plate glass windows. The sidewalk in front was ten feet seven inches in ...
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The plaintiff sustained injuries caused by a dust explosion in the defendant’s mill. The defendant was engaged in manufacturing cereals and grind-, ing oat hulls, the covering of the berry of the oat, a by-product, mixed with other grains for feed; some of the oat hulls were produced from oats ground in the mill, and some were purchased by the defendant and brought in car lots from outside points....
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The findings of fact and conclusions of law of the referee are challenged by the plaintiff upon the ground that the gift of the mortgage unaccompanied by á written transfer is sought to be established by the uncorroborated testimony of Mrs. Nichols, the wife of the donee, and that there is. absent from the case that clear, *648strong, satisfactory and convincing evidence which.the law requires to ...
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This action is brought to recover damages for the death of the plaintiff’s intestate, resulting from a collision of the decedent, while riding upon a bicycle, with an express wagon of the defendant. The accident occurred about twelve o’clock noon of the 26th of October, 1905, on Clinton street, in the city of Syracuse. Clinton street extends nortli and south• near the place of the accident Walton ...
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The action is brought to recover damages fór the death of the plaintiffs’ intestate, Henry Móest, who, while attempting to enter an elevator1 in the city and county hall' in Buffalo, was fatally injured by reason of' the alleged personal negligence of the operator. " The building in question was constructed under and pursuant to chapter 680 of the Laws of 1.871, entitled “ An act in relation to th...
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We think that the Municipal Court acquired jurisdiction of the defendant, and that the practice of the court upon the trial was regular; but in the view we take of the case upon the merits, those questions need not be discussed. The plaintiff’s counsel in his points states that the engine that frightened the horse which ran against the plaintiff’s horse and carriage was located at the curb, and ex...
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This is an appeal from an order of the Special Term,.directing the appellant, Sidney II. Cook, to deliver to the respondent, Ambrose E. Smith, all the books and papers appertaining and belonging to the office of supervisor of the town of Camillus in Onondaga county. The proceeding was instituted under section 2471a of the Code of Civil Procedure. The facts are undisputed. Sidney H. Cook was electe...
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Rebecca B. Evans died intestate on the 28th day of July, 1895, leaving her surviving as her sole heirs at law- and next of kin Jane *671Evans, her mother, Bichará B. Evans, her brother, and two sisters, Jane E.. Collins and Anna Evans Lahn. The intestate was a resident of this State at the time of her death. Her mother, her brother and her sister Jane were residents of Ireland, and Anna Evans Lahn...
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If the lands upon which the timber was cut were owned by the State, it follows that the judgment was properly directed against the defendants, for it appears they are situated in the county of Herkimer, and section 216 of the Forest, Fish and Game Law provides that the forest preserve shall include lands owned or-hereafter acquired by the State, among others those within the county of Herkimer. Am...
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We think the learned referee correctly decided that no sufficient grounds existed which entitled the petitioner to an equitable set-off of. the note owing by him to the German Bank against the indebtedness of $19,000 owing by the bank to the trustees of Mary E. Hurd, and that the order confirming the report'should be affirmed. On the 12th day of April, 1904, when Alfred "G. Hauenstein borrowed of ...
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Order affirmed, with costs, on opinion by George E. Spring, referee. All co'ncur, except SPRING, J., not voting-, and WILLIAMS, J„ dissenting....
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The respondent is a domestic street surface railroad corporation duly organized for the purpose óf constructing arid operating a street surface railroad between tire city of Boclrester and the city uf Syracuse. The defendants own a tract of land containing about-twenty-one acres, situated on East avenue and -in. the town of Brighton .and within 400 feet of tire city line of Boclrester. The respond...
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There is no substantial dispute as to the material facts in this case. The plaintiffs, some time prior to the yéar 1890, purchased two lots known as. Nos. 25 and 27 Warburton avenue, in the city of Yonkers, and in that year constructed a brick and frame building upon the southerly half of their premises, such premises being located upon the banks of the Nepperhan river, a stream running through th...
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The judgment appealed from .should be affirmed. On the 16th day of June, 1902, the plaintiff was the owner of the fee of certain premises lying between Malbone street and Sterling place, borough of Brooklyn, and fronting on Bedford avenue. On that date the city of New York acquired the fee to a portion-, of said premises for the purpose of widening and -improving Bedford avenue, though the compens...
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Just what practical resultwould.be attained, in the event of a reversal of the decree appealed from, it is .difficult to understand; *707the appellant does not suggest any, and in such a case the court is not called upon to be astnte in discovering a technical ground for reversal. The practical question has been litigated and the time for appeal has passed, and unless there is something to be gain...
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In this case' a passenger has recovered damages for an assault by the defendant’s conductor. During the carriage, an altercation arose. over a demand for fare which the passenger said he had paid. The altercation continued both when the demand was repeated and when the passenger made a demand for a transfer ticket which was refused on the ground of the non-payment of fare. When the car reached the...
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This is an action by the State Commissioner of Excise against the holder of a Jiquor tax certificate and his surety, to recover the penalty of the excise, bond. The defendants answered separately. Upon the trial the surety company alone appeared, but it never cross-examined the plaintiff’s witnesses nor offered testimony. A* the close of the plaintiff’s case the defendant surety company moved to d...
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The action is to recover broker’s commissions on the sale of land. The title was in Kosch for himself and Mrs. Coffin, and the latter’s husband had charge of the property for the owners. In August, 1905, the land had been listed with the plaintiffs as real estate brokers who had set up a sign upon it. In that month Humphreys *716came to the plaintiffs and asked them to ascertain the owner’s terms....
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This is an appeal from an order of the Special Term denying a motion to punish the defendants for a contempt in failing to ©bey a judgment and thereby .defeating the rights of the plaintiff to his loss. In 1904 the defendants contracted to sell certain premises to the plaintiff,, who thereafter rejected the title as unmarketable and sued to recover $200 paid on account of his purchase and the inci...
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This is an appeal from an order of the Special Term vacating an order granted under section 1391 of the Code of Civil Procedure, directing that execution issue against part of the income payable to the defendant from a trust during his life, and vacating the execution issued thereunder. The trust was created under a will probated in 1894. . The amendment by chapter 175 of the Laws of 1905 of secti...
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This controversy is submitted upon an agreed statement of facts which, so far as material, are as follows : Prior to March 24, 1905, plaintiff’s merchandise and other supplies at certain premises in Columbus, Ohio, were insured against loss by the defendant to the amount of $932.05. On that day they were wholly destroyed by . fire, and were at that time worth the sum of $12,833.79, in which *724su...
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This is a submitted controversy, and involves the title to a strip of land four inches wide and one hundred feet long-, on which is located, the westerly one-lialf of a party wall. By deed recorded May 9," 1871, the plaintiff, Paul W. Ledoux, became seized of the entire block of land bounded by Margaretta street, Éldert street, Bushwick avenue and Broadway, in the borough of Brooklyn. In the same ...
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The appellant is the owner of several acres of land in the town of Tuxedo, Orange county, and of a water right in the adjoining town of Monroe, and the respondents are the assessors of the town of Monroe. This proceeding was 'brought to set aside an assessment made by the respondents in the town of Monroe upon the water right owned by the appellant. Mt. Baslian pond is a body óf water, in .extent ...
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The defendant Yielee was a justice of the peace of Mt. Hope, and his codefendant was overseer of highways in that'town. The complaint alleges that the defendants illegally, wrongfully and without jurisdiction and unlawfully did cause to be issued a legal process against the plaintiff herein, which consisted of a summons issued by Yielee in an action wherein Hawkins was plaintiff; that the summons ...
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The defendant had a vested remainder in real property devised to him by his grandfather, and in real and personal property devised to him by his father, dependent in each case on an estate therein to his mother for her life. She is still living. He employed the plaintiff by a written contract to negotiate a sale of a share *735therein for $55,000 net to the defendant, snch share to be $175,000 if ...
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This appeal is from a judgment requiring defendant to remove certain poles which it has erected in front of and adjoining premises of the plaintiff, together with the wires and cables strung thereon, and perpetually enjoining the defendant from replacing or erecting any poles or putting up any poles or wires in that portion of said street. The facts are not seriously controverted. The plaintiff is...
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The acceptance by John 0. Fry of the written instrument of July 18,, 1879, and the receipt by him of money thereunder created the relation. of trustee and cestui q%ie trust between him and said Mary Elizabeth (Day v. Roth, 18 N. Y. 448; Hamer v. Sidway, 124 id. 538, and see Sheldon v. Sheldon, 133 id. 1); this was an active, continuing, express trust and no citation of authority is required upon t...
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The defendant Sewall appeals from a judgment entered on the verdict of a jury and from an order denying a motion for a new trial in an action brought to recover damages for the breach of a contract, whereby it is claimed fille defendants agreed to pay the plaintiff the sum of two dollars for each Italian workman whom he should induce to emigrate to the Hawaiian Islands. It appeared that the defend...
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The defendants appeal frotó an order granting an injunction pendente lite in an action brought by the plaintiff to restrain the defendant highway commissioners from granting to the defendant Suffolk Traction Company their consent to the construction, maintenance and operation by it of a street surface railroad on a certain street of the town of Brookhaven. On April 1, 1903, the highway commissione...
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This proceeding is instituted to review the action of the- town board of audit of the town of Orangetown, county of Rockland, in" disallowing four claims presented by the relator for audit. - Each claim is. for services alleged to have been rendered by him, as town clerk of said town. The first is for services rendered at an election, other than a town meeting, in the year, 1964; and the members o...
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The action is in the Municipal Court, The defendant issued a plate glass insurance policy to Coleman, covering the show windows of a drug shop leased by Coleman as owner to the plaintiff. The plaintiff’s ease is as follows: On or about March 25th a show window was cracked by an accident. The' defendant was notified and within four days sent over a surveyor to inspect and to measure the window. The...
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The action is for negligence by the administrator of a servant against the master, and the master appeals from a judgment on the verdict. The appellant contends that there is neither proof of his negligence nor of the absence of the intestate’s contributory negligence. The servant, standing upon a scaffold at work on'a building, fell to the ground and was injured when the scaffold gave way. I thin...
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The defendants demurred to the complaint with success at first, but this court reversed the interlocutory judgment. They pleaded anew and have succeeded upon the trial before the referee. ( The opinion of the court upon the first appeal, written by Willabd Bartlett, J., states the preliminary facts and defines the issues. (102 App. Div. 377.) The opinion of the learned referee upon the trial also ...
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The learned trial judge charged the jury that if they found for the plaintiff his measure' of damage was the profit at which he could have sold the coal at retail at Mt. Vernon if it had arrived in contract time, viz., $1,200, plus the difference between the pur-, chase price and the sum he received for the coal at retail,,, viz., $1,400, which would make a total of $2,800, which with interest wou...
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The plaintiff claims that the reservation clause-in the deed in respect of the right of way jvas personal to the grantor, and therefore ceased when he conveyed his land afterwards. I-t being plain and unambiguous, facts dehors may not be resorted to for its interpretation. It is not affected by the absence of the word “ heirs ” or other words of inheritance. A reservation by the grantor in a deed ...
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The law makes a common carrier liable as an insurer for the safe carriage and delivery of freight, the - acts of God and of public enemies excepted. The defendant is therefore liable unless the contract of shipment shields it. It contains the following clause' applicable to the case, viz.: “ That in the event of any unusual delay or detention of said live stock, caused by the negligence of the sai...
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The duration of the plaintiff’s employment was fixed by a clause in the original agreement that either party might terminate the agreement by a notice of 30 days. Three several times that agreement as theretofore amended was in terms “ extended ” from the first day of March in one year to the samé day in the following year, the final agreement of extension "being dated February 24th, 1900, and pro...
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Defendant appeals from a judgment after trial by the court, without a jury, adjudging that sales of real property by the plaintiffs to him be rescinded and.that he reconvey the property. Prior to February, 1904, the parties, who are brothers and sister, each owned in fee simple, as tenants in common, the equal undivided one-fifth part of eight and twenty-five one-hundredths acres of land in the co...
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The order was regularly obtained and should not have been vacated. Presumably the statement on information and belief in the affidavit of the judgment debtor that the execution was returned unsatisfied at the request of the plaintiff’s attorney caused it to be vacated. But there was no proof of the. fact. And if there had been it fully appears that a sale of the real estate which one of the judgme...
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Hannah Crossman was the landlord of William F. Smith. They had differences and Smith sued the respondent in the Supreme Court. .The respondent at the same time began a proceeding to dispossess the appellant for the non-payment of rent. In this proceeding the respondent was successful, but the appellant appealed to the County Court. While this appeal was pending Smith expressed á desire to settle t...
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The plaintiff set forth an action, based upon the defendants’ nég^ligence, alleging various grounds of negligence, including common-law grounds and those arising under the Employers’ Liability Act (Laws of .1902, chap. 600), and set forth,'as it is claimed, that One John Gahler was in the defendants’, employ operating a dirt train, for the purpose of gaining an admission of this fact in the pleadi...
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This action was brought to' partition certain .premises in the borough of Brooklyn, and, "under the Interlocutory decree, the premises were sold by the referee appointed for that purpose to Franklin S. Holmes, who paid ten per cent of the purchase pricey and Undertook to complete the purchase on a given date." Failing to complete the purchase, a motion was made to compel the purchaser to fulfill h...
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In the year 1893 the" city of Aew York, proceeding under the provisions of chapter 189 of the Laws of 1893, petitioned for the condemnation of Lake Qleneida, in the town of Carmel, Putnam county, to be used as a" part of the water supply of the said city. *799An order of the Supreme Court at Special Term was made in the year above named, condemning various parcels of real estate, including the pro...
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This is a proceeding of the city of New York to acquire real estate on Long Island for water supply in the borough of Brooklyn pursuant to sections 484, et seq., of the city charter. Two property owners’ appeal from the order of the Special Term confirming the •report of the commissioners of appraisal. They say that the report is illegal in that it appraises and provides payment for only part of t...
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The complaint and moving affidavits state that the plaintiff is a licensed hotelkeeper at the seaside place within the- city limits called'Arverne; that the hotel has 39 bedrooms, and has a music casino; that every day for two weeks three police officers came to his place in the evening under direction of the captain of the precinct, and demanded that he conduct them through the hotel for inspecti...
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The action is partition and the appeal is by the defendant Goetz from the interlocutory judgment therein. In 1857 Annah Dehnert owned the premises in fee. Ill 1860 she executed her will, devising all of her estate absolutely to the husband, Peter Dehnert. In 1876 Annah died survived by her said husband and four children, of whom three were born after the execution of her said will. In 1877 the wil...
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The defendant appeals from a judgment against it in an action for damages to personal property from the overflow of the defendant’s sewer. A jury was waived and the court found that for' a period of two years previous to the 13th day of November, 1903, and five or six times every year, during storms the sewers maintained by the defendant were insufficient to cony off the large quantities of waters...
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The court quashed the writ on the ground that the petition did not specify each parcel of the petitioner’s land sepai’ately and claim that it was overvalued, but grouped them and alleged that the petitioner’s land was overvalued. The petition is only to get the writ,, and if it be insufficient to authorize the writ to be granted a motion should be made to dis*816miss it and quash the'. Writ before...
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This action was brought to enforce the provisions of a separation agreement executed at a time when defendants were living together as husband and wife, that relation continuing for more than six months thereafter. The agreement was kept a secret, and to all outward appearances there was no change in the relations of the parties, who continued to live together the-same as they had done before. The...
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The plaintiffs appeal from a judgment entered on the' report of a referee iti a suit on a judgment of the State of Arkansas. The judgment sued on is attacked for want of jurisdiction, and the judgment appealed from cannot be sustained unless the defendants have negatived every siipposable fact which would have authorized the exercise of jurisdiction by the court that rendered said Arkansas judgmen...
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' On the 10th day of May, 1902, the plaintiff entered into a contract with the defendant, a publisher, pursuant to which he agreed to act as a general selling agent of the defendant in the State of Iowa. The defendant was to furnish the plaintiff an office at Des *830Moines, la., and to pay him a monthly salary together with the. ■expenses of the business, and in addition a commission on the net s...
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The question of this case is whether the defendant, as vendor of the apparatus consisting of a sparklet bottle and capsules for use therewith, was chargeable with negligence in the sale thereof.. The plaintiff complained that the defendant at the time of the sale well knew that the bottle was unsafe and dangerous to use, and unfit for the purpose intended, and that the defendant sold and delivered...
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This is an action for damages for breach of contract of sale. The plaintiff complains that on September 18, 1901, the defendant agreed to sell and to deliver to him a quantity of cement at the price of one dollar and twenty cents per barrel; that up to December 26, 1901, the parties proceeded in performance, but that on' September 4, 1902, the defendant refused further performance. The *840defenda...
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The relator alleges that he was retained by a resolution of the board of supervisors passed on September 12, 1904, as follows: *845“ Whereas, at a "session of this Board held August 3, 1903, Harrison T. Slosson was directed to represent Westchester .County in presenting claims against the City of New York in the matter of county bridges, and, Whereas, the question of dámages will arise as to chang...
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The damages recoverable by the relator in a mandamus proceeding caused by a false return to an alternative' writ do not. include counsel fees therein. Formerly damages for a false, return could only be recovered in an action for damages for the false return. If such an action were brought, and the plaintiff prevailed, he in that way falsified the return and thereby established his right to the pei...
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This cause was on October 1st, 1906, ordered on the day calendar for October Í5th, on the defendant’s motion-, á former judgment therein for the plaintiff having been reversed. On October 13tli the clerk of the plaintiff’s attorney brought an affidavit to the attoiney for the defendant, and asked him to present it to the court on ■the call of the day calendar on October 15th and try to - get an-ad...
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By sections 870, et-seq., of the Code of Civil Procedure a party to an action is given the right to take the deposition of an- adversé. party before or during the trial. Section 872 prescribes what, the affidavit on which an order for suelv an- examination is asked for must. contain. Subdivision 4 thereof requires that the ■ affidavit “ set forth ” that the testimony of the person to he exaniined ...
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The landlord had instituted a prior proceeding in December, 1905* against'the tenant to remove her for the non-payment of the rent which came due the first day of that month. The petition alleged that the. landlord let the premises to the' tenant for one month on November 1st, 1905,. for the 'rent of $16.50, and from month to month thereafter at $30 a month, and that the rent for December was Unpa...
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The complaint alleges permanent injúries in general terms. A bill of particulars thereof should have been ordered. It was appar-. ently denied on the ground that the defendant would not, as a condition of granting the motion, waive its right to have a physical examination of the plaintiff. This Was error. The particulars of the injuries may in themselves furnish reason.for a physical examination. ...
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The contract between the plaintiffs and the defendant was that the plaintiffs should pay the defendant $320 for four lots of land by paying $32 down and $20 a month thereafter. It was .made Julie 22nd, 1901. It contained a clause.that on default in any payment the seller might 30 days thereafter elect without notice that all the payments become forfeited, to her and belong to her as liquidated dam...
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. The complaint is that the defend^Hran into the plaintiff with his automobile on September 3rd, 11TO4, on Bedford road near Cottage place, in the town of Mount Pleasant, Westchester county, while the plaintiff was driving his horse and cart there. This complaint is good whether the defendant was himself driving his" automobile, or in it at all. The cause of action will be made out if the defendan...
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It is made a misdemeanor by section 139 of the Forest, Fish and Game Law (ch. 20, L. 1900) to violate section 124 of that law, which forbids any person to “ take, carry away, interfere with or disturb oysters * * * of another lawfully planted or cultivated,” and it is of this that the defendant was convicted. To prove that the oysters the defendant took and carried away from a bed in Tiana Bay, to...
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This is an appeal from an order denying defendant’s motion to vacate and set aside an execution made upon the grounds, among-others: “ That there is no authority in law authorizing the issuance of said execution and the same is irregular in form and substance;' that there is no valid judgment upon which said execution can be issued.’» We think the court had power, assuming the judgment to have bee...
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This action was brought under the provisions of section 2653a of .the Code of Civil Procedure, to determine the validity of the probate of the last will and testament of one Phebe Ann Berrian. The plaintiffs are her heirs at law and next of kin, and the defendants are her legatees, devisees and executors. Her will was admitted to probate on June 27, 1905, by the surrogate of Queens county. The pla...
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We should rest the affirmance of this judgment on the opinion of the court at Special Term (Silberman v. Mayer, 48 Misc. Rep. 468) without further discussion were it not for the fact that a point is now raised which was not called to the attention of or considered by "the learned trial justice, but is presented by the appeal from the judgment and now for the first timé urged by the appellants. The...
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The defendants appeal from a judgment entered on the verdict of a jury in an action brought to .recover damages for breach of warranty. The facts are practically undisputed, and the only question requiring consideration is that raised by the defendants’ motion to dismiss the complaint, to wit: Does the warranty accompanying an executory sale of goods by sample where there are no express words of w...
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. The "plaintiff -appeals from a- judgment dismissing his-complaint entered-on the ."report" of a-referee. The action is brought against the: defendants- as former members of a dissolved joint stock association, the Wagner Palace Oar .Co mpany, to reco ver damages for breach.of a contract.claimed to have been entered into between .-the plaintiff’s assignor and said-¡association pursuant to which t...
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This is an appeal from an order directing a peremptory writ of mandamus to compel the appellant to reinstate the relator to the position of clerk to the coroner in and for the borough of Richmond. The relator was appointed to said position pursuant to section 1571 .of the Greater New York charter (Laws of 1901, chap. 466) which gives the coroners in each borough power to appoint a ■clerk at an ann...
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The action is for negligence. The appeal is from an order of the Special Term of August, 24, 1906, which resettled an order of June 26, 1906. On June 12, 1906, the defendants moved for an order dismissing the complaint with costs and directing judgment in favor of the defendants and against the plaintiff for costs and disbursements. The motion was upon an affidavit that, the action was begun on or...
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*891The following is the opinion of Mr. Justice Burr delivered at Special Term: It is conceded that there is no statute expressly authorizing the issue of a writ of certiorari " to review the action of the' board of health in preventing relator from carrying on the business of selling milk in the city of New York. In the absence of such statutory authority, unless entitled to a common-law writ, he...
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• The "plaintiff appeals from an order for .a bill of particulars. The action- is for an assault by the defendant’s servants upon the plaintiff *893when a passenger on one of defendant’s cars. I think a hill of particulars is proper in this case to reach justice and to afford the defendant fair opportunity for preparation to meet the issue. (Dwight v. Germania Life Ins. Co., 84 N. Y. 493.) The def...
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The plaintiff’s doctor who testified to his injuries was brought to say on cross-examination by leading questions that he hoped the plaintiff would in time be able to walk without a cane. The trial judge said: “ You expect what is probable; your hope may be very improbable.” The defendant’s counsel said he excepted to the remark. Counsel for the appellant styles this remark of the court “ the acti...
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The action is brought to partition two parcels of land on Rockaway Beach in the city of New York, owned in fee by the plaintiffs, Malcolm R. Lawrence, Frank J. Heaney and Silas K. Everett, and the defendants Adah P. Vernarn and'John R. Murray as tenants in common. The first nine paragraphs of the complaint contain the usual allegations of a cause of action for the partition of real property and th...
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The action is one to recover damages for injuries resulting in the death of the plaintiff’s intestate, one Domenico Ciareia, due to a collision between one of the defendant’s electric surface cars and a wagon driven by him.. There was evidence in the case that the deceased was riding upon the forward part of a wagon coupled together with a reach or pole and used to draw lumber; that the highway be...
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The plain tiffs bring this action to recover damages for several trespasses and injury to premises owned by them and in their possession at Bayville, Nassau county, and the complaint asks for an injunction perpetually restraining the defendants from entering upon the premises of the plaintiffs; that the plaintiffs be declared the owners, of the fee of the westerly half of a private road or lane ad...
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Judgment and order reversed and new trial granted, with costs to appellant to abide event, upon the ground that the' verdict is against the weight of evidence. No opinion. All concurred....
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— • Judgment unanimously affirmed, with costs. No opinion....
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Judgment and order affirmed, with costs. No opinion. All concurred, except Smith and Kellogg, JJ., dissenting....
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Judgment and order reversed and new trial granted, with costs to appellant to abide event, unless plaintiff stipulates to reduce the verdict to §3,500, in which case the judgment as so reduced and order affirmed, without costs. No opinion. All concurred. >...
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Judgmentand order affirmed, with costs. No opinion. All concurred, except Cochrane, J., dissenting....
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Order affirmed, with ten dollars costs and disbursements. No opinion. All concurred....
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— Interlocutory judgment affirmed, with costs, with usual leave to defendant to withdraw demurrer and plead anew upon payment of costs of demurrer and of the appeal. No opinion. All concurred....
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Decree unanimously affirmed, with costs. No opinion....
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Judgment unanimously affirmed, without costs. No opinion. Cochrane, J., not sitting....
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Judgment unanimously affirmed, with costs. No opinion....
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Judgment and order unanimously affirmed, with costs. No opinion....
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Order unanimously affirmed, with costs. No opinion....
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— ■ Order affirmed, with ten dollars costs and disbursements. No opinion. All concurred....
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Judgment affirmed, with-costs. No opinion. All-concurred, except Smith, J., dissenting....
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Determination confirmed, with fifty dollars costs and disbursements. No opinion. All concurred....
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Judgment and order affirmed, with costs. No opinion. All concurred....
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— Motion granted, with costs, unless- the appellant serves the printed case on or before December twentieth, and. pays ten dollars costs, in which- case motion denied, without costs....
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Judgment and order unanimously' affirmed, with costs. No opinion....
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Motion for permission to perfect appeal granted, without costs. Motion to strike the appeal from the calendar and to dismiss appeal denied, without costs....
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Judgment. and order affirmed,- with costs. No opinion.. All concurred, except Kellogg, J., dissenting....
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Judgment unanimously affirmed, with costs. No opinion....
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Order affirmed, with ten dollars costs and disbursements. No opinion. All concurred....
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Judgment unanimously affirmed, with costs, on the authority of Kelly v. Security Mutual Life Ins. Co. (186 N. Y. 16). All concurred....
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— Interlocutory judgment affirmed, with costs, with usual leave to withdraw demurrer and plead upon payment of costs below and in this court. No opinion. All concurred. ‘ •...
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— Judgment unanimously affirmed, with costs. No opinion....
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Order affirmed, with costs, on the authority of Buffalo Structural Co. v. Dickinson (98 App. Div. 355). All concurred....
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— Judgment unanimously affirmed, with costs. No opinion. Cochrane, J., not sitting....
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— Judgment unanimously. affirmed, with costs'. No opinion....
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Judgment and order unanimously affirmed, with costs. No opinion....
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Judgment unanimously affirmed, without costs’. No opinion....
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Order affirmed, with ten dollars .costs and disbursements. No opinion. All concurred....
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— Interlocutory judgment affirmed, with costs, with, leave to defendants to withdraw their demurrers and answer upon payment of costs of demurrer and of the appeal to this court. No opinion. All concurred....
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— • Motion for leave to go to Court of Appeals granted, and the following questions of law "certified to the Court of Appeals as questions of law which ought to be reviewed by said court: 1. Does the complaint state facts sufficient to constitute a cause of action against the defendant Charles B. Alexander? 2. Does the complaint state facts sufficient to constitute a cause of action against the de...
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— Appeal from j udgment dismissed, with ten dollars costs. Appeal from order dismissed, with ten dollars costs....
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— Order requiring plaintiff to enter.interlocutory judgment affirmed, with ten dollars costs and. disbursement's. No opinion. AIL concurred. Motion to dismiss appeal from interlocutory judgment denied, without costs....
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— Decision amended so as to read as follows: “ Order-affirmed, and the writ refused on a question of law only, with costs. Opinion by Chester, J. All concurred.” (Reported in 114 App. Div. 890.)...
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Without passing upon the merits involved in this litigation we are were the Special Term to call_ for the exercise of its discretion in determining whether the existing conditions should be preserved until the trial, and that there was, no abuse of the discretion in. granting the injunction pendente lite. The order appealed from should, therefore, be affirmed, with ten dollars costs and disburseme...
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We are in entire accord with the conclusion reached by the learned judge at Special Term and agree that the complaint should,be dismissed. . The judgment, however, as entered might prove embarrassing, if not conclusive, if any further action as suggested should be instituted by reason of certain unnecessary adjudications therein contained. The judgment "should, therefore, be modified by striking o...
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The defendant was indicted for forging and uttering a check of his former employer, Louis Segall, which he obtained the sum of §1Q0, *913The indictment contained two counts, one for forging such check and one for uttering it. On the trial the first count for forging the check was abandoned and the defendant was convicted under the second count of forgery in the second degree for uttering it. No ex...
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Judgment and order affirmed, with costs. No opinion. Order filed....
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Judgment affirmed, with costs, with leave to defendants to withdraw demurrer and to answer on payment of costs in this court and in the court below. No opinion. Order filed....
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Judgment and order reversed and new trial ordered, with costs to appellant to abide event, unless plaintiff stipulates to reduce verdict to §2,000; in which event judgment as so modified and order affirmed, without costs. No opinion. Settle order on notice....
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—Judgment and order affirmed, with costs. No opinion. Order filed....
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Judgment affirmed, with costs. No opinion. Order filed....
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Judgment affirmed, with costs. No opinion. Order filed....
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Judgment and order affirmed, with costs. No opinion. Order filed....
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Judgment and order affirmed, with costs. No opinion. Order filed....
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— Judgment and order affirmed, with costs. No opinion. Order filed....
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— Judgment and order affirmed, with costs. No opinion. Order filed. (Houghton, J., dissenting.)...
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Proceedings affirmed and writ dismissed, with fifty dollars costs and disbursements. No opinion. Order filed....
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Order affirmed, with ten "dollars'costs and disbursements.. Ho opinion. Order filed. ''...
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Judgment affirmed, with costs, with leave, to plaintiff to amend on payment of co.sts in this court and in the court below. Ho opinion....
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Exceptions-overruled and judgment ordered on the verdict, With costs, on -the authority of Schlesinger v. Kelly (114 App. Div. 546.) Settle Order on notice....
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— -Order affirmed, with ten dollars costs and disbursements. No opinion. Order filed....
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Judgment and order affirmed, with hosts. Ho opinion. Order filed....
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Order affirmed, with ten dollars costs and disbursements. Ho Opinion; Order filed....
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— Judgment affirmed, with costs, with leave to'defendant to amend as stated in order on payment of costs in this court, and in the court below.- Ho opinion. 'Order filed....
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Judgment and order reversed,, new trial ordered, costs to appellant to abide event,-, unless plaintiff stipulates to reduce judgment as entered, ihcíudjTng costs, etc., to $3,650.48; in which event judgment' as and order affirmed,, without costs... Ho opinion. Settle order on notice. ‘...
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Determination, orders and judgment affirmed, with costs, and judgment absolute ordered against the appellants under the stipulation, with costs of the action. Ho-opinion. Order filed....
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Order granting extra allowance reversed and judgment modified as directed in order, and as modified judgment and order denying motion for new trial affirmed, without costs.' Ho opinion. Order filed....
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Order affirmed, with ten dollars costs and disbursements. Ho opinion, Order filed....
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Judgment and order affirmed, with costs. Ho opinion. Order filed....
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Order affirmed, with ten dollars costs and disbursements. Ho opinion; Order filed....
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Appeal from decision dismissed, with ten dollars costs ; judgment affirmed, with .costs, with leave to plaintiff to -amend on payment of costs in this court and in the court below. Ho opinion. Order filed. , ' '...
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Judgment- affirmed, with costs. Ho opinion. Order filed. . "...
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Order affirmed, with ten dollars costs and disbursements. No opinion. Order filed....
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Order affirmed, with ten dollars costs and disbursements. No opinion. Order filed....
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— Order affirmed, with ten dollars costs and disbursements. No opinion. Order filed....
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Motion to dismiss appeal denied. Order filed....
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— Motion to dismiss appeal denied on payment of ten dollars costs. Order filed....
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Motion to dismiss appeal denied on payment of ten dollars costs. Order filed....
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Order affirmed, with ten dollars costs and disbursements. No opinion. Order filed....
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Order affirmed, with ten dollars costs and disbursements. No opinion. Order filed....
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— Order affirmed, with ten dollars costs and disbursements. No opinion. Order filed....
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— Motion to dismiss appeal granted, with ten dollars costs. Order filed....
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Order affirmed, with ten dollars costs and disbursements. No opinion. Order filed....
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— Order modified by requiring payment of all costs to the time of amendment, and as modified affirmed, without costs. No opinion. Settle order on notice...
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Order affirmed, with ten dollars costs and disbursements. No opinion. Order filed....
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Motion denied. See memorandum per curiam. Order filed....
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— Motion denied. Order filed....
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— Motion denied, with ten dollars costs.— See memorandum per curiam. Order filed....
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Motion denied....
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— Motion denied, with ten dollars costs. Order filed....
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Motion denied, with ten dollars'costs. Order filed. ....
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Application granted. Order signed....
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— - Motion denied on payment of ten dollars costs, and, on -payment of an additional ten dollars, leave given to apply to the court below to open default. Order filed....
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— Motion granted for the purpose of allowing appellant to apply in the court below for a resettlement of the case. Order filed....
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— Application denied. See memorandum. Order signed....
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Judgment affirmed, with costs. (Houghton, J., dissenting.) No epinion. Order filed....
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— Motion denied. Order filed....
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Order granting leave to appeal to the.Court of Appeals vacated and set aside, and application for such leave denied. Memorandum per curiam. Order filed....
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— Motion denied. Order filed....
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Order affirmed, with ten dollars costs and disbursements. No opinion. Order filed....
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— Motion granted. Order filed....
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Motion denied, with ten dollars costs. Order filed....
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— Judgment and order affirmed, with costs. No opinion. Order filed....
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Application granted. Order signed,...
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— Motion denied, with ten dollars costs. Order filed....
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— Motion denied. Order filed....
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Interlocutory judgment affirmed, with costs, with leave to plaintiff to amend complaint on payment of costs in this court and in the court below. • No Qpinion. Order filed....
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— Motion denied, with ten dollars costs. Order filed....
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— Motion ' denied; with ten dollars costs. Order filed....
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— Motion denied. Order filed....
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Reference ordered. Settle order ón notice....
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Judgment and order ••affirmed, with costs. No opinion. Order filed....
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Motion granted. Orders filed....
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Order affirmed, with costs. .No opinion. Order filed....
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— Motion granted. Order filed....
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Motion granted. Order filed....
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— Judgment affirmed. No opinion. Order filed....
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— Motion denied, with ten dollars costs. Order filed....
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Order affirmed, with costs. No opinion. Order filed....
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— Motion 'granted and-respondent disbarred. See memorandum per curiam. Settle order on notice....
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Motion denied. Order filed....
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— 'Order affirmed, with ten dollars costs and disbursements. No opinion. Orderfiled....
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— Judgment and order affirmed, with costs. No opinion. Order filed.-...
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Judgment affirmed, with costs. No opinion. Order filed....
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— Judgment and order affirmed, with costs. No opinion. Orderfiled....
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Order affirmed, with ten dollars costs and disbursements. No opinion. Order filed,...
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Judgment and order affirmed, with costs. No opinion. Order filed....
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— ■ Judgment affirmed, with costs. No opinion. Orderfiled....
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Judgment affirmed, with costs. No opinion. Order filed....
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— Judgment and order affirmed, with costs. No opinion. Order filed....
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Judgment affirmed, with costs. No opinion. Order filed....
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Appeal from report of referee dismissed, with ten dollars costs, and judgment affirmed, with costs. No opinion. Orderfiled."...
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Order affirmed, with ten dollars costs and disbursements. No opinion. Order filed....
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Order affirmed, with ten dollars costs and disbursements. No opinion. Order filed....
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— Order affirmed, with ten dollars costs and disbursements. No opinion. Order filed....
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Judgment affirmed, with costs. No opinion. Orderfiled....
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Judgment affirmed, with costs. No opinion. Order filed....
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Judgment affirmed, with costs. No opinion. Order filed....
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Judgment and order affirmed, with costs. No opinion. Orderfiled....
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—Judgment affirmed, withcosts. Hoopinion. (Clarke, J., dissenting.) Order filed....
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Judgment and order affirmed, with costs. Hoopinion. Order filed. "...
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Order affirmed, with ten dollars costs and disbursements. Ho opinion. Order filed....
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Decree affirmed, with costs. Ho opinion. (Ingraham, J., dissenting.) Order filed....
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Order affirmed, with ten dollars costs and disbursements. Ho opinion. "...
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Judgment and order affirmed, with costs. Hoopinion. Order filed....
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Judgment affirmed, with costs. Ho opinion. Order filed....
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Judgment and order affirmed, with costs. Ho opinion. Order filed....
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— Order affirmed, with ten dollars costs and disbursements. Hoopinion....
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Order affirmed, with ten dollars costs and’disbursements. ■ Ho opinion. Order filed....
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— -Judgment affirmed, withcosts. Hoopinion. ' Order filed....
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Order affirmed, with ten dollars costs and disbursements. Ho opinion. Order filed....
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— Judgment and order affirmed, with costs on 111 Appellate Division, 101. Order filed....
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— Judgment and order affirmed, with costs. Ho opinion. Order filed....
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Judgment affirmed, with costs on 113 Appellate Division, 310. Order filed....
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Judgment affirmed, with costs. Hoopinion. Order filed....
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Order affirmed, with ten dollars costs and disbursements. Ho opinion....
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— Motion denied, with ten dollars costs. Order filed....
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—Reference ordered. Settle order on notice....
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Judgment and order unanimously affirmed, with costs. No opinion....
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Motion denied, with ten dollars costs. Order filed....
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Application granted. Order filed....
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— Petition and charges dismissed. Order filed....
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Motion denied. See memorandum....
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— Judgment affirmed, with costs. No opinion. All concurred, except Parker, P. J., not voting....
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Motion denied, on payment of ten dollars, and on terms stated in memorandum per curiam. Order filed....
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Judgment and order unanimously affirmed, with costs. No opinion....
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— Motion denied, with ten dollars costs. Memorandum per curiam. Order filed:...
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— Motion denied....
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— Motion denied, without costs, leave to plaintiff to apply to the Spc i.d Term for an fixing and place of the examination of the dele .lit as directed by the order for his examination. Order filed....
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— Motions denied on condition that appellant serve and file its'paper's on appeal in time for the first Friday in February, 1907, in default of which the motion to dismiss appeal is granted, with ten dollars costs. Orders filed....
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— • Motion to dismiss appeal granted, with ten dollars costs. Order filed....
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Judgment affirmed, with costs. No opinion. All concurred, except Parker, P. J., not voting....
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— Judgment and order reversed and new trial granted, with costs to appellant to abide event, on *920the ground that the verdict is against the-weight of evidence. All concurred, -except Parker, P. J., not voting, and Chester, J., dissenting....
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— Motion granted and time extended to January 1, 1908. Order filed....
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— - Order affirmed, with ten dollars 'costs and disbursements, . No opiniom All concurred; Parker, P. J., not sitting....
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Judgment . and orders unanimously affirmed, with costs. No opinion..,...
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— Motion denied....
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— Decree unanimously affirmed; with ‘costs. No-opinion....
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Judgment unanimously affirmed, with costs: No opinion..'...
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Judgment modi-' fled by deducting ten dollars therefrom, and as modified affirmed, without costs to either party. No opinion. All concurred, Parker, P. J., not sitting, -...
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Motion granted for leave to.go to Court of Appeals, and questions certified as- follows: 1. Are depositors and holders of certificates of deposit having.special interest contracts-with the Merchants’ Trust Company entitled to payment, in addition to the amounts already paid to them respectively,' to wit, the full amount of the principal' of their deposits, of any Interest whatever upon their respe...
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In this récord there are -no findings of the Commission as contemplated by section 14 of chapter |737 of the Laivs. of 1905. The récord.is, therefore, remitted to the Commission....
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Motion for lgave to.go to Court of Appeals granted aiid question certified1 Were the papers upon which the warrant of attachment was granted sufficient toauthorize the county judge to grant said attachment?...
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— Motion for leave to go, to Court of Appeals granted and questions certified as follows: 1. Was the-defendant Louis Silver privileged frorn the service of summons and complaint herein at the timé said service was made? 3. Did the defendant Louis Silver waive any irregularity in the servicé of said summons and complaint by serving his answer herein? '...
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Judgment modified, by deducting therefrom as of June 28, 1908, the date of the entry thereof, seventy dollars costs, and the further sum of ’fifty-five dollars and forty-six: cents, and as thus modified unanimously affirmed, without costs. No opinion,...
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— Judgment, reversed as contrary to facts stipulated on the trial, and new trial granted,with costs. No opinion. All concurred, except Parker, P.-J., not'voting....
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- Judgment and order affirmed, with costs. All concurred....
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Judgment and order affirmed, with costs. All concurred, except Spring, J., who dissented on the ground that exceptions to the charge and to the reception of evidence present reversible errors, particularly in the charge that the defendants were required, to use the best mechanical appliances and contrivances known in that locality, designed to prevent the escape of sparks and live coals....
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Order affirmed; with ten dollars costs and disbursements. All concurred-...
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Judgment unanimously affirmed, with costs. No opinion; Parker, P. J., not sitting....
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Judgment and order affirmed, with costs. All concurred, except Williams and Nash, JJ., who dissented on the ground that the defendant has not been shown guilty of negligence and also because of errors in the charge....
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Judgment affirmed. All concurred....
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Judgment and order affirmed, with costs. All concurred....
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— Judgment affirmed, with costs. All concurred....
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Plaintiff’s exceptions overruled, motion for new trial denied, with costs to the defendant, and judgment ordered for the defendant on the nonsuit. All concurred....
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Order affirmed, with ten dollars costs and disbursements. All concurred....
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— Judgment of conviction reversed. All concurred....
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Judgment and order reversed and new trial ordered, with costs to appellant to abide the event. Held, that the questions of defendant’s negligence and freedom of plaintiff’s intestate from contributory negligence were questions of fact for the jury. All concurred....
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— Judgment and orders unanimously affirmed, with costs. No i opinion....
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Plaintiff’s exceptions overruled, motion ftir new trial denied, with cost's to the defendant, and judgment ordered for the defendant on the nonsuit. All concurred, except Williams, J.. who dissented on the ground that the facts upon which the court granted the nonsuit presented questions for the jury and not for the court....
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Interlocutory judgment affirmed, with costs, with leave to the defendant to plead over upon payment of the costs of the demurrer and of this appeal. All concurred....
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— Judgment of conviction reversed. All concurred....
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Order affirmed, with costs, on authority of opinion in same case on former appeal, reported 105 Appellate Division, 12. All.concurred, except McLennan, P. J., and Nash, J., who dissented....
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— Judgment affirmed. All concurred....
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— Motion for leave to appeal to the Court of Appeals granted and questions for review certified....
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Judgment and order affirmed, with costs. Held, that while the statute* has a broader significance than indicated in the memorandum of the trial court, we think it does not apply to a case like the one at bar, where the party sought to he charged obtained possession of the cans lawfully and with the consent of the owner. All concurred, except Williams, J., who dissented upon the ground that the tri...
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Judgment and order affirmed, with costs. All concurred, except McLennan, P. J., and Williams, > J., who dissented on the ground that the case,should have been submitted to the j.ury....
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— Judgment and order reversed and new trial ordered, with costs to the "appellant to abide the event. Held, that the verdict is contrary to • the evidence. All concurred, except Williams, J., not voting....
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— Judgment and order reversed and new trial ordered, with costs to the appellant to abide the event, upon the exceptions to the admission of evidence. , All concurred, except Spring, J., who dissented....
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Judgment and order reversed and new trial ordered, with costs.to the appellant to abide the event. Held, that upon the evidence the plaintiff, sis matter of law, failed to show freedom from contributory negligence. All concurred, except Spring and Kruse, JJ., who dissented. ■...
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— Judgment and order affirmed,, with costs. All concurred, except Nash, J.', who dissented....
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Judgment and order affirmed, with costs. All concurred; Krtise. J., not sitting....
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— Application granted. ■ Order appointing J. R. Varnum, Nelson J. Tubbs and Thomas W. Ford, of the city of Rochester, commissioners to be settled by and before Mr. Justice Nash on two days’ notice. All concurred. 1...
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— . Motion granted conditionally. Orders to he settled by and before Mr. Jiistice_ Williams on two days’ notice.'...
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Judgment and order reversed and new trial ordered, with costs to .the appellant to abide the event, upon the ground that the evidence fails *923to establish actionable negligence on the part of the defendant. All concurred, except Spring and Kruse, JJ., who dissented....
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— Order affirmed, with ten dollars costs and disbursements. Ro opinion. Woodward, Jenks, Hooker, Gaynor and Rich, JJ., concurred....
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— Judgment and orders of the'County Court of Kings county affirmed, with costs. Ro opinion. Hirschberg, P. J., Woodward, Hooker, Rich and Miller, JJ., concurred....
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—Interlocutory judgment affirmed, with costs. * Ro opinion. Woodward, Jenks, Hooker, Rich and Miller, JJ., concurred....
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The recoverin action Ro. 2 is determined at $1,031.09; in action Ro. 3 at §1,582.36, and in action Ro. 4 at §2,757.24. Ro opinion. Woodward, Jenks, Hooker and Rich, JJ., concurred....
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— Judgment of the Municipal Court affirmed by default, with costs. Hirschberg, P. J., Jenks, Hooker, Gaynor and Rich, J.T., concurred....
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Judgment and order affirmed, with costs. All concurred....
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Order affirmed, with ten dollars costs and disbursements. Temporary stay vacated. Motion for stay- denied. Ro opinion. Hirschberg, P. J., Jenks, Hooker, Gaynor and Rich, JJ., concurred....
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Judgment and order affirmed, with costs. All concurred....
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Judgment affirmed, without costs. Ro opinion.' Woodward, Jenks, Hooker. Rich and Miller. JJ.. concurred....
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— Judgment and order affirmed, with costs. All concurred....
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Judgment affirmed, with costs. All concurred....
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Judgment affirmed, with costs. All concurred, Rash, J., not sitting....
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Order affirmed, with ten dollars costs and disbursements. Ro opinion. Hirschberg, P. J., Woodward, Jenks, Rich and Miller, JJ., concurred....
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Judgment affirmed by default, with costs. Hirschberg, P. J., Jenks, Hooker and Rich, JJ., concurred....
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Judgment unanimously affirmed, with costs. Ro opinion. Present — Hirschberg, P. J., Jenks, Rich and Miller, JJ....
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No opinion. The recovery in action No. 2 is determined at $1,034.09, in action No. 3 at $1-582.39, and in action No. 4 at $2,757.24....
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Judgment affirmed by default, with costs!. Hirschberg, P. J., Jenks. Hooker and Rich, JJ., concurred....
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Judgment and order affirmed, with costs. No opinion. Woodward, Jenks, Hooker, Gaynor and Rich, JJ., concurred....
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— Order affirmed, with ten dollars costs and disbursements. No opinion. Woodward, Jenks, Hooker and Rich, JJ., concurred....
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Present — Hirschberg, p. J., Jenks, Hooker, Gaynor and Rich, JJ....
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Reargument ordered and case set down for Tuesday, January 33,1907. Present —1-1 irschberg, P. J., Woodward, Jenks, Rich and Miller, JJ....
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Order affirmed, with ten dollars costs and disbursements. No .opinion. Hirschberg, P, J., Jenks, Hooker, Gaynor and Rich, JJ.,'concurred....
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Without passing upon the question of the power of the court at Special Term to initiate and make inquiry as to collusion, of which the record furnishes no evidence, We think the court was without power to amend the pleading after the issues had been tried, The order is, therefore, reversed and motion denied, and case remitted to the Special Term. Hirschberg, P. J., Jenks, Hooker,' Gaynor and Rich,...
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Order reversed, with ten dollars costs and disbursements, and motion 'denied, with costs, upon the authority of South Shore Traction Co. v. Town of Brookhaven (ante, p. 749), decided herewith. Hirschberg, P. J., Woodward, Gaynor, Rich arid Miller, JJ., concurred. •...
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— Decree of the ■ Surrogate’s Court of Nassau county affirmed, with costs. No opinion. Woodward, Jenks, Hooker, Gaynor and Rich, JJ., concurred....
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Judgment and order of the County Court of Kings county unanimously affirmed, with' costs. No opinion. Present — Hirschberg, P. J., Jenks, Rich and Miller, JJ....
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Judgment and order by striking out the provision for extra allowance on the ground of want of power 'in the court below to grant the same, and as so modiSed unanimously affirmed, without costs of this appeal. No opinion. Present — Woodward, Jenks, Hooker and Rich, JJ....
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Judgment affirmed,, with costs.- No opinion. Hirschberg, P. J., Jenks, Hooker,. Gaynor and Miller, JJ.. concurred....
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Order reversed, with $10 costs and disbursements, and motion denied, with costs, upon the authority of South Shore Traction Co. v. Town of Brookhaven (decided herewith) 102 N. Y. Supp. 75....
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Motion for stay pending the appeal granted, without costs, on condition that the appellant argue the appeal when reached on the calendar. Jenks, Hooker, Rich and Miller, JJ., concurred. '...
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Motion denied. Present — Hirschberg, P. J., Jenks, Hooker, Gay-nor and Rich, JJ....
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— Motion denied. Present — Hirschberg, P. J., Jenks, Hooker, Gaynor and Rich, JJ....
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Motion granted on condition that the appellants pay ten dollars costs and file their papers forthwith. Present — Jenks, Hooker, Rich and Miller, JJ....
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Motion denied. Present — Hirschberg, P. J., Jenks, Hooker, Gaynor and Rich, JJ....
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— -Application for writ of mandamus denied. Present — Hirschberg, -P. J., Jenks, Hooker, Gaynor and Rich. JJ....
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Motion denied and stay vacated. Present — Hirschberg, P. J.,-Jenks, Hooker, Gaynor and Rich, JJ....
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— -Motion denied. Present — Hirschberg, P. J., Jenks, Hooker, Gaynor and Rich, JJ. •...
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Motion denied. Present — Hirschberg, P, J., Jenks, Hooker, Gaynor and Rich, JJ....
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Motion to dispense with the printing of the two exhibits in question granted, unless the defendant furnishes the plaintiff within ten days with copies of the same as taken from his books. If copies are so furnished, the motion is denied. Present — Hirschberg, P. J., Jenks, Hooker, Gaynor and-Rich, JJ....
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Motion to dismiss appeal granted, with ten dollars costs. Present — Hirschberg, P. J., Jenks, Hooker, Gaynor and Rich, JJ....
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Application granted. Present — Jenks, Hooker, Gaynor, Rich and Miller. JJ....
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Motion for resettlement of order denied. ■ Present— Hirschberg, P. J., Jenks, Hooker, Gaynor and Rich, JJ....
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— Motion denied. Present — Hirschberg, P. J., Jenks, Hooker, Gaynor and Rich, J.J....
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— Motion denied, without prejudice to a renewal if the appeal is not perfected and the case placed on the next calendar of this court for argument. Present — Hirschberg, P. J., Jenks, Hooker, Gaynor and Rich, JJ....
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Motion to dismiss.appeal granted, with costs. Present — Hirschberg,-P. J., Jenks, Hooker, -Gaynor and Rich, JJ. ■ - ,...
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Motion denied and stay vacated. Present — Hirschberg, P. j., Jenks, Hooker, Gaynor , and Rich, JJ....
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Judgment. of the Municipal Court affirmed, with costs. Ho opinion. Jenks, Hooker, Rich and Miller,-JJ., .concurred. '...
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Motion for reargument denied,' with costs, and stay vacated! Present — Hirschberg, P. J.„ Jeults, Hooker, Gaynor and Rich,. JJ. ....
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Judgment of the Municipal Court affirmed, with costs, on theauthority of City of Brocklyn v. Nassau Electric R. R. Co. (44 App. Div. 462) and City of New York v. Johns-Manville Co. (89 i.d. 449). Hirschberg, P. J., Woodward, Gaynor, Rich-and Miller, JJ., concurred....
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— Judgment and order affirmed, with costs. Ho opinion. Hirschberg, P. J., Woodward, Hooker and Miller, Jj., concurred; Rich, J., dissented....
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Order of the County Court of Rockland county modified by deducting the sum .of twenty dollars, disallowed by the county clerk and restored by the County Court, and as modified affirmed, without costs. Ho opinion. Hirschberg, P. J.,-Woodward, Gaytiof, Rich and Miller, JJ., concurred....
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— Report confirmed and order signed. Present — Hirschberg, P. J., Jenks, • -Hooker, Gaynor and Rich, JJ. ~...
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— judgment and order, unanimously affirmed, with costs. Ho opinion. Present — Hirschberg, P. J., Woodward, Gaynor, Rich-and Miller; JJ....
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Judgment of the Municipal Court affirmed, with costs. Ho opinion. .Hirschberg, P. j., Jenks, Hooker, Gaynor and Rich, JJ., concurred:...
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Judgement affirmed, with costs. Ho, opinion: Hirschberg, P. J., .jenks, Hooker, Gaynor and Rich, JJ., concurred. "...
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Judgment o'f conviction affirmed. Hp opinion. Hirschberg, P. J., Jenks,. Hooker, Gaynor-and Rich, JJ., concurred....
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Judgment ,and order unanimously affirmed, with costs, on reargument. Present — Hirschberg, P: J.. Woodward,.Gaynor, Rich and Miller, JJ.'...
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Judgment and order unanimously affirmed, With costs. . Ho opinion. Present — Jenks, Hooker, Rich and Miller, JJ....
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Order affirmed, ten dollars costs ■ and disbursements. Ho opinion. 'Hirschberg, P. J., Jenks, Gaynor,'Rich and Miller, JJ., concurred. N -...
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Motion to dismiss appeal granted. Present —Hirschberg, P. J., Jenks, Gaynor, Rich and Miller, JJ....
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Motion for-resettlement of order denied. Present — Hirschberg, P. J., Jenks, Hooker, Gaynor and Rich, JJ. . ' '...
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— Judgment and order unanimously affirmed, with costs. No opinion. Present — Woodward, Jenks, Hooker, Gaynor and Rich, JJ....
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Final order reversed, without costs, on the authority of People ex rel. Poeple v. Cahill (ante. 885), decided herewith. Hirschberg, P. J., Woodward, Gaynor, Rich and Miller, JJ., concurred....
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— Order affirmed, with ten dollars costs and disbursements. No opinion. Hirschberg, P. J., Woodward, Gaynor, Rich and Miller, JJ., concurred....
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Judgment and order affirmed, with costs. No opinion. Hirschberg, P. J., Jenks, Hooker, Gaynor and Rich, JJ., concurred....
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We are unable to dispose of this motion without notice to the infant. When such notice is given and the infant .■is legally represented, the matter may be brought on for a hearing. Present — Hirschberg, P. J., Jenks, Hooker, Gaynor and Rich, JJ....
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Application granted. Present —Hirschberg, P. J., Woodward, Gaynor, Rich and Miller, JJ....
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Motion for leave to appeal to the Court of Appeals denied. Present — Hirschberg, P. J., Jenks, Hooker, Gaynor and Rich, JJ....
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— Application granted. Present — Hirschberg, P. J., Woodward, Jenks, Hooker and Miller, JJ....
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Motion denied. Present — Hirschberg, P. J.,Woodward, Jenks, Hooker and Miller, JJ....
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Motion to dismiss appeal granted, unless the .appeal is perfected, return filed and the case placed on the'next calendar of this court for argument. On compliance with these terms, motion denied. Present — Hirschberg, P. J., Jenks, Hooker, Gaynor and Rich, JJ....
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— Appeal dismissed on argument, without costs, on the ground that the question presented is purely academic. Hirschberg, P. J., Jenks, Gaynor, Rich and Miller, JJ., concurred....
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Judgment of the Municipal Court reversed on reargument, and new trial ordered, costs to abide the event, on the ground that there is no evidence in the return establishing the amount of the plaintiffs claim. Hirschberg, P. J., Woodward, Gaynor, Rich and Miller, JJ., concurred....
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Motion to dismiss appeal granted, with costs. Present — Hirschberg, P. J., Jenks, Hooker, Gaynor and Rich, JJ....
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Judgment *928affirmed, with costs. No opinion. Jenks, Hooker, Gaynor and Miller, JJ., ■ concurred....
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Final order reversed, without costs, on the authority of People ex rel. Hoefle v. Cahill (decided herewith) 103 N. Y. S. 335....
Views: 0
— Motion for reargument denied. Present — Hirschberg, P. J.,-Jenks, Gaynor, Rich and Miller, JJ....
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— Motion denied. Present — Hirschberg, P. J., Woodward, Jenks, Hooker and Miller,. JJ....
Views: 0
Judgment affirmed, with costs. No opinion. Jenks, Hooker, Gaynor, Rich and Miller, JJ., concurred....
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Motion to resettle order denied. ’Present — Hirschberg, P. J., Jenks, Gaynor, Rich and Miller, JJ....
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— Motion to ‘ dismiss appeal granted. Present — Hirschberg, P. J., Jenks, Gaynor, Rich and Miller, JJ....
Views: 0
Motion for reargument or for leave to appeal to the Court of Appeals denied. Present — Hirschberg, P. J., Jenks, Gaynor, Rich and Miller. JJ....
Views: 0
Interlocutory j udgment affirmed, until costs. No opinion. Jenks, Hooker, Gaynor, Rich and Miller, JJ., concurred....
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Judgment and order unanimously affirmed, with costs. No opinion. Present — Jenks, Hooker, Rich and Miller, JJ....
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Judgment of the Municipal Court unanimously affirmed, with costs. No opinion. Present — Jenks," Hooker, Gaynor, Rich and Miller, JJ....
Views: 0
— Motion for leave to appeal to the Court of Appeals denied.. Present — Hirschberg, P. J., Woodward, Jenks, Hooker and Miller, JJ....
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Motion for leave to appeal to the Court of Appeals denied and stay vacated. Present — Hirschberg, P. J., Jenks, Gaynor, Rich arid Miller, JJ....
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— Motion granted and proceedings referred to the Hon. .Jesse Johnson to take testimony and report to the court with his opinion. Present — Hirschberg, P. J.,’ Jenks, Gaynor, Rich and Miller, JJ. •...
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Motion for *929the appointment of commissioners denied and proceedings dismissed, not in the exercise of discretion, but solely on the ground that the, petitioners are not possessed of the legal right to construct and operate the roads contemplated. Present-^Hirschberg, P. J., Woodward, Jenks, Hooker and Miller, JJ....
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Sanders Shanks, Esq., appointed guardian ad litem herein for the infant Gustav Gardner. Present —• Hirschberg, P. J., Woodward, Jenks, Hooker and Miller, JJ....
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— -'Judgment of the Municipal Court affirmed, with costs. No opinion. Jenks, Hooker, Gaynor, Rich and Miller, JJ,, concurred....
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— Interlocutory judgment affirmed, with costs. No opinion. Hirschberg, P. J., Woodward, Gaynor, Rich and Miller, JJ., concurred....
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Judgment and order unanimously affirmed", with costs. No opinion. Present — Jenks, Hooker, Gaynor, Rich and Miller, JJ....
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— Motion granted. Present — Hirschherg, P. J., Jenks, Gaynor, Rich and Miller, JJ....
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—Application granted, and proceedings referred to Horatio C. King, Esq., to take testimony and report to the court with his opinion. Order signed. Present — Hirschberg, P. J., Woodward, Jenks, Hooker and Miller, J J....
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— Judgment of the Municipal Court affirmed, with costs. Ho opinion. Hirschberg, ■ P.. J., Jenks, Hooker, Gaynor and Rich, JJ., concurred....
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Motion for reargument denied. Present — Hirschberg, P. J., Woodward, Gaynor, Rich and Miller, JJ....
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— Motion to dismiss appeal granted. Present — Hirschberg, P. J.,.Jenks, Gaynor, Rich and Miller, JJ....
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Order affirmed, with ten dollars costs and disbursements. Ho opinion. Hirschberg, P. J. Woodward, Gaynor and Rich, JJ., concurred; Miller, J., dissented....
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—Motion to resettle order granted. Present — Hirschberg, P. J., Jenks, Hooker, Gaynor and Rich, JJ....
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Motion denied. Present — Hirschberg, P. J., Woodward, Jenks, Hooker and Miller, JJ....
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— 'Motion for leave to appeal to the Court of Appeals denied. Present — Hirschberg, P. J., Woodward, Jenks and Miller,. JJ....
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Motion for leave to appeal to the Court of Appeals denied. Present — Hirschberg, P. J., Jenks, Gaynor, Rich and Miller, JJ....
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— Judgment affirmed, with costs. Ho opinion. Hirschherg, P. J., Woodward, Jenks, Hooker and Miller, JJ., concurred....
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—Appeal dismissed, with costs. Present — Hirschberg, P. J., Jenks, Gaynor, Rich and Miller, JJ....
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— Motion denied, without prejudice to a renewal if the appeal is not perfected and the case placed on the next calendar of this court for arguriient. Present — Hirschberg, P. J., Jenks, Hooker, Gaynor and Rich, JJ....
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Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event, on the ground that the alleged contract of employment for two years was not, proved, the letter used for that purpose being insufficient. Jenks, Hooker, Gaynor, Rich and Miller, JJ., concurred....
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Judgment affirmed, withcosts. Ho opinion. Hirschberg, P. J., Woodward, Gaynor, Rich and Miller, JJ., concurred....
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I agree with Barrett, J., inz Pursley v. Rodgeis (44 App. Div. 139) that this plaintiff was not required absolutely "to give security for costs under section 3268 of the Code of Civil Procedure. Under1 section 3271 of that.Code it was a matter of discretion with the court, and I think that its order should not t be disturbed inasmuch as it is within tfie rule which we laid down in McNeil v. Merria...
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