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All Reporters → ny-app-div-lexis → Volume 1907
Opinions in ny-app-div-lexis Volume 1907
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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Page 43
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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This appeal is from an.interlocutory judgment overruling demur rers to the fourth and fifth defenses setup in the amended answer in this action, which was brought to recover damages for_an alleged libel printed in'a newspaper belonging to and circulated by the defendant. The article was printed in the German language and what appears to be a translation of it is annexed to the complaint. It begins...
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This was a proceeding instituted by the State Commissioner of Excise to revoke a liquor tax certificate based upon a violation of the Liquor Tax Law by selling liquor on Sundays. ' The defendant interposed an answer to the petition, alleging that she was the keeper of a hotel and that the sales on Sunday were made at the time mentioned in the petition to guests of the hotel upon said premises, wit...
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This action was brought to recover the sum of $912.35 expended by the plaintiff at the request of the defendant in transmitting a sum of money from New York to Lima, Peru, by cable. The question in dispute was the amount of .a premium paid by the plaintiff to a London bank for transmitting, the money, amounting to $1,829.06. The defendant paid to the plaintiff the sum of $50,000> the plaintiff cla...
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The action was to recover the-damages sustained by the plaintiff in consequence of a breach of a contract for the sale and delivery ,of galvanized broom wire. By the. contract, a copy of which is annexed to the complaint, the defendant sold to the plaintiff 400 barrels No. 21 galvanized broom wire, “ Shipments to commence upon completion of present contract; to be made at the', rate of 6 to 8 barr...
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This action, was brought to recover for legal services rendered by the plaintiffs as attorneys and counselors at law. The. complaint alleges that prior to the month of April, 1902, at various times mentioned, various per'scms, some of whom- are defendants and some of-whom are not,, retained-.the plaintiffs to perform-certain profes^ sional services in and about the formation and organization of a ...
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The question presented in this case is the same as that presented in Myers v. Lederer (117 App. Div. 27) decided herewith. For the reasons there stated the judgment appealed from must be affirmed, with costs, with leave to the plaintiffs, however, to serve an amended complaint within twenty days’ upon payment of costs in this court and in the court below. Patterson, P. J., Laughlin, Clarke and Sco...
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The question presented on this appeal is whether the case on appeal should contain the grounds upon which .counsel for the defendant Hoyt moved to dismiss the complaint. It seems that after the plaintiff rested, counsel for the defendant Hoyt made a motion to dismiss the complaint, stating at large -Seven grounds upon which- that motion was based. From the stenographer’s minutes it appears that he...
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The action was upon a promissory note. The 2d clause of the complaint alleges that “ on or about tbe 18th day of September, 1905, defendant made his certain promissory note in writing, dated on that day, whereby for value received, he promised to pay to the order of himself, one month after said date, the sum of seven hundred dollars at Empire Trust Company, New York City, with interest at six per...
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The action was for libel and the plaintiff- made a motion for a preference. This motion was denied, and from the order entered upon that denial the plaintiff appealed. The plaintiff failed to serve' the printed copies of the papers upon the appeal, as required by rule 41 of the General Rules of Practice, whereupon he made a motion at the Special Term to be relieved from the default. This ■ default...
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The defendant was indicted for the crime of murder in the first degree, the indictment charging-that on the 23d day of September, 1896, he willfully and feloniously killed one Rose A. Redgate. There have been two trials. The first resulted in a conviction of the crime charged in the indictment, but on appeal the judgment was reversed and a new trial ordered, upon the ground that error was committe...
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On the 13th of August, 1901, the plaintiff went to work at defendant’s livery stable, having been employed to perform the duties usually devolving upon laborers in such establishments, by Daniel Eeahon, defendant’s brother, through whom.the business was conducted. Some two weeks later, following the instructions of Daniel . Eeahon, plaintiff lighted a gas engine in the' basement of the building an...
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John Sullivan died leaving a last will and testament,-admitted to probate on the 9tli day of March, 1886, by which he gave to his executors and trustees, these defendants, all of his property in *57trust, to collect the rents and income and to pay during the lifetime of his wife Honora and his son James stipulated amounts to certain beneficiaries annually, with the further provision that such exec...
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The relator is a banking corporation, organized under the laws of the State of Connecticut, where it maintains a statutory office. It has a place of business at No.' 60 Wall street,- in the city of New York, with an office staff .of fifty or more persons. It. maintains branches in the cities of Washington and San Francisco and at many of the commercial centers of foreign countries. Its business *6...
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In the years 1897 to 1900, inclusive, the defendant was engaged in business, in the city of New York, in the furnishing and erection of structural and ornamental steel and iron work for buildings under the name or style of “ J. B. & J. M. Cornell.” During the same period, and for many years prior thereto, the plaintiff was in business as a contractor for the erection of buildings in the city of Ne...
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The plaintiff has recovered a verdict for damages for an arm broken, as alleged, in consequence of defendant’s negligence in permitting a dumbwaiter in a tenement house owned by him to become unsafe. The verdict is challenged as contrary to all the credible evidence in the case. The house was a five or six-story tenement with dumbwaiter running from top to bottom, and used by all the tenants in th...
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The appellant was convicted of murder in the second degree in th'e Court of General Sessions of the Peace. The case is barren of exceptions raising any question of law. The appellant bases his appeal upon the contention that, on the whole, the defendant’s evidence was more worthy of belief than that of the People, and upon the further contention that the trial judge and the counsel wdio defended t...
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The relator, a director of the appellant corporation, has obtained an order directing the issuance of a peremptory mandamus permitting him to examine the books, records and accounts of the said corporation. From'this order the defendants appeal. It appears, that the Central Fish Company was formed in the year 1902, between certain persons engaged in the fresh-water fish business' in' the city of N...
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This proceeding involves the right of the relator, an electric light company, to obtain an allotment of space for its wires in the underground conduits belonging to the-Consolidated Telegraph and Electrical Subway t)bmpany (hereinafter for brevity’s sake, called the Subway Company). The organization of the Subway Company and its erection and maintenance of underground conduits for eléctrica! condu...
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I think there should be a new trial granted in this case on the ground that the trial had before the. referee was upon a wrong theory. The referee states by his opinion that he did not consider in any *106manner the agreed compensation provided by the verbal contract. Even if the contract was void by the Statute of Frauds and could 'not have been ■ • enforced as an executory contract, it having be...
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The facts upon which this motion was brought are stated in the case of Meyer v. Page (112 App. Div. 625). We there held that that action being based upon charges of fraud against the defendant’s testator could not be sustained as the evidence did not warrant the finding that the defendant’s testator was guilty of fraud. There is no substantial difference in the facts proved in this case except tha...
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This action was brought to enforce an attorney’s lien. It appears that on or about the 21st of February, 1901, the defendant Bonaddio was a passenger upon one of the trains of the defendant railroad company, and received injuries thereon in the State of blew Jersey; that on or about the 26th of February, 1901, the plaintiff, an attorney and counselor at law duly admitted to practice in the courts ...
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For the reasons stated in the case of Oishei v. Pennsylvania Railroad Co. (117 App. Div. 110) decided herewith, this judgment was right, and should be affirmed, with costs. Present — Patterson, P. J., Ingraham, McLaughlin, Houghton and Lambert, JJ. Judgment affirmed, with costs. Order filed....
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For the reasons stated in the case of Oishei v. Pennsylvania Railroad Co. (117 App. Div. 110) decided herewith, this judgment was right, and should be affirmed, with costs. Present — Patterson, P. J., Ingraham, McLaughlin, Houghton and Lambert, JJ. Judgment affirmed, with costs. Order filed....
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For the reasons stated in the case of Oishei v. Pennsylvania Railroad Co. (117 App. Div. 110) decided herewith, this judgment was right and should be affirmed, with costs. Present — Patterson, P. J., Ingraham, McLaughlin, Houghton and Lambert, JJ. Judgment affirmed, with costs. Order filed....
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The defendant was convicted of a violation of section 558 of the Penal Code. That section provides that “ a person who, knowing the contents thereof, and with intent, by means thereof, to extort or gain any money or other property, or to do, abet, or procure any . illegal or wrongful act, sends, delivers,, or in any manner causes to" be forwarded or received * * *■ any letter or writing, threateni...
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The action was - to recover upon a certain promissory note made by the defendant to the Trust Company of America upon which there was due .$140,000, for which certain stock was .deposited as collateral security, a portion of which was owned and deposited by the plaintiffs. Subsequently the plaintiffs paid the trust company the amount due them and became the owners of the note. This summons and com...
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The action was brought for the specific performance of an agreement contained in a conveyance by the plaintiff to one Quay for the release of certain easements in the premises conveyed by the plaintiff to Quay; and a notice of the pendency of this action was filed when the action was brought. The defendant interposed an answer, and moved to cancel the notice of pendency of action upon the ground t...
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This is the ordinary negligence action to recover damages alleged to have been sustained by the widow and next of kin by reason- of *128the death of jdaintiff’s testator. The complaint alleges that the testator was injured on the 25th of October, 1903, and as a result of such injuries he died on the 13th of September, 1904. Then follows this allegation: “ That during the interval between the said ...
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This action is brought to recover daihages alleged to have been sustained by the widow and next of kin by reason of the death of plaintiff’s intestate. Before answering the defendant made a motion to compel the plaintiff to file security for costs. The motion was denied and defendant has appealed. The facts set out in the moving papers were' uncontradicted and were to the effect that the plaintiff...
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Judgment affirmed, with costs, On opinion of referee.
Present ■—• Patterson, P. J., McLaughlin, Laughlin, Houghton and Scott, JJ.; McLaughlin and Scott, . JJ., dissented.
The following is the opinion of William G. Choate, Esq., referee: '
This’ is an action brought by a judgment creditor of the Hartman Manufacturing Company, a corporation organized under the laws of Pennsylvania, against that com...
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The complaint alleges in one paragraph that on the 10th of August, 1906, the defendants, their agents, servants and employees violently assaulted this plaintiff and violently caught and struck her about her arms and body, and did beat,, bruise, wound and ill-treat the plaintiff; and then and there in the presence of divers persons did falsely and maliciously speak and declare of and concerning the...
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A Trial Term of the Supreme Court was appointed by the Appellate Division of this department, to commence on the first Monday of Movember, 1906, and to that court Mr. Justice Greénbaum, a justice of the Supreme Court, was assigned. He presided in that court during the month of Movember, and at the end of that month, on the application 0f the district attorney, an order was entered which recited th...
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This court having determined that.-before formal approval should he given to the report of the commissioners approving of the use of the east side of Park avenue between Thirty-fourth and Forty-second streets for the underground railway, the owners of abutting property on Park avenue shpuld be paid the damages that the actual construction of thfe unauthorized tunnel has caused to the abutting prop...
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This action was brought for the specific performance of a contract for the conveyance of real property by which the defendant Sophie Knepper agreed to convey to the plaintiff certain premises in the city of New York for the sum of $19,000; of this amount $450 was paid upon the 'execution of the contract; $16,000 was to be ■paid by conveyance of the property subject to an existing mortgage ; $1,500...
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The judgment now appealed from was entered upon an agreed state of facts showing that on the 16.th, and 24th days of Novem- ■ her, 1905, defendant offered for sale and1 sold in the city of New York certain grouse which had not been taken in the State, of New York nor within' twenty-five miles of the State line, and that said defendant had not given the bond specified in and required by section 27 ...
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The action is to recover from the defendants penalties for selling grouse or partridges without having given the bond prescribed by section 27 of the Forest, Fish and Game Law (Laws of 1900, chap. 20, added by Laws of 1903, chap. 291 and amd. by Laws of 1901, chap. 580 and Laws of 1905, chap. 335). . The. defendants are engaged principally in the wholesale fish business. One of their salesmen rece...
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.The plaintiff seeks an injunction to restrain defendants from publishing, selling or offering for sale certain books, designated the “Eureka Series.” Both plaintiff and defendants are booksellers and publishers, and plaintiff bases its demand for an injunction upon the claim that the defendants have been guilty of unfair competition or unfair trade in putting upon the market a series of books so ...
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Alonzo Balch, the testator, on March' 15, 1873, opened two savings bank deposits in different banks, and to the credit of each account deposited'$250. Each account was opened in the name of “Alonzo W. Balch in trust for David C. Balch,” the latter being the son of Alonzo. But a single amount was drawn from each account in 1876, and additional sums were paid in to each account at various times. On ...
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The defendant in this action appears to have been intrusted with certain shares of the stock of the Scarsdale Water Company;' with authority to sell the same for the plaintiff and his wife, at a price not less than fifty dollars per share. The cause of action, originally pleaded involved eight shares, but it subsequently appearing that seven of these shares belonged to the plaintiff’s wife, the ac...
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The plaintiff was injured in an accident upon the defendant’s car on the 15tli day of December, 1902. He was employed as a'motorman, and on the day in question was sent out on a light four-wheeled car. The car had been newly equipped with a plow, a device which passes through the slot rail in' the center of the defendant’s tracks, transmitting the electric current from the cable below to the motor...
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The relator was charged with conduct unbecoming an officer, the specifications being as follows : “Birst. Said Patrolman Hugh F. Maguire, of the twenty-fifth Precinct, did, at about 9.30 a. m., September 23, 1905, at the northwest corner of East Eleventh Street and Third Avenue, wilfully and wrongfully advise one Maurice McMahon, of 206 East One hundred and twenty-sixth street, to pledge a -watch ...
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The appellant was indicted with one Abraham Cohen in the Court of General Sessions, charged with the crime of grand larceny in the second degree. They were both convicted, the defendant Klein alone appealing. It is urged on the part of the appellant that the learned court erred in submitting the case against Klein to the jury, and while it must be admitted that the evidence was not as conclusive a...
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Paul S. Brown died on the 30th day of August, 1901, intestate as to the property involved in this action. On the 10th day of July *2001901, Mr. Brown entered into an agreement with the defendant - Augusta A. Brown, which was followed by a. ceremonial marriage on the twenty-fourth day of August in the same year. He was at that time about ninety years of age, in the full possession of his faculties,...
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*207Judgment affirmed, with costs, on opinion of referee. Order filed.
Patterson, P.s J., McLaughlin, Houghton and Scott, JJ., concurred; Laughlin, J., dissented.
The judgment is affirmed on the opinion of the referee. All concur, except Laughlin, J., who dissents upon the grounds of error in allowing recovery for items not embraced in bill of particulars and for incompetent and insufficient proo...
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The action was brought to foreclose a purchase-money 'second. mortgage for $51,500 on premises 144 Fulton street in the city of New York, executed by the' defendant Capstick to the plaintiff on her undivided nine-tenths interest in said premises. At the time the mortgage was executed, ownership of the remaining undivided one-tenth interest was considered uncertain. Witthaus, therefore, conveyed on...
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I concur with Mr. Justice Laughlin in the opinion that this action cannot he maintained upon the plaintiff’s theory of alternative relief as such an action is only justified where, on ■ the. facts stated, a plaintiff would be entitled to the alternative relief demanded against the same defendant or defendants.- As I understand it, neither at common- law nor under the Code of Civil Procedure can a-...
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' On the 21st day of February, 1905, the; Wolff Construction Company, as owner, entered into an agreement with the plaintiff, as contractor, by which the latter agreed to furnish “ all the materials and ' perform all the work for the erection of-the low-pressure steam-heating apparatus to be erected in the six-story apartment house located at northwest Cor. of 9Yth St. & Madison Avenue,- N. Y, Cit...
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The defendant pleaded two counterclaims on contract, one upon a note and another, upon a bond, which were proved. These counterclaims exceeded the amount of the plaintiffs’ claim. The court 'subsequently dismissed the counterclaims and struck out the evidence ' given to sustain them upon the ground that this was an" action in conversion. The single question presented by the appeal is whether _ it ...
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This is an action to recover damages for personal injuries alleged to have been sustained by the plaintiff through the negligence of the defendant. After the defendant answered and noticed the case for trial, and placed it upon the calendar, the plaintiff settled Ins claim with the defendant and executed a release of his cause of action. The defendant thereafter and within the time within Which he...
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This action was placed upon the Special Term calendar, and brought to trial as a suit in equity for an accounting concerning personal and real property assigned and conveyed by the plaintiff to the defendant Peter I. Nevius by an instrument in writing made on the 10th day of December, 1886, and delivered to said defendant pursuant thereto. The instrument assigning and conveying the property is ann...
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The duty of providing ballot boxes for the" reception of ballots at any election devolves in the city of Greater Hew York upon the board of elections,* and to the end that the ballots may be preserved a reasonable time as evidence in a proper action or proceeding and at the same «time that the ballot boxes may be available for use at future elections, the Legislature provided in section 111 of the...
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The action is brought for the specific performance of a contract by which it is alleged the defendants, as owners of premises No. 26 West Thirty-fifth street in the city of New York, agreed to convey the same to the plaintiff for the consideration of $105,000. The answer contains a general denial and interposes the Statute of Frauds as a defense.
It is contended that the order was properly granted...
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This action was brought on the 4th day of August, 1902, by the plaintiff as owner of the premises known as No: 829 Third avenue, to perpetually enjoin and restrain the Manhattan Railway Company, which was then in possession of and operating the elevated railroad in Third avenue in front of said premises, from operating the railroad and to compel it to take down and remove the same, and as incident...
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The action is brought to recover for goods sold and- delivered the copartnership firm of Boss F. Bobertson & Co., composed of' defendant’s intestate and said Bobertson.
The action was commenced on the 21st day of May, 1906, and Bobertson was not joined as a party defendant. The defendant *252answered; and after issue joined, the plaintiff moved for leave to serve an amended summons and complaint b...
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This is a representative action for an accounting'by the appellant and others, as members of axreorganization committee under a reorganization agreement involving the American Cotton Company and ten subsidiary companies. The ground of the demurrer relied upon and argued in behalf of the appellant at Special Term and ■ here, is that the complaint fails to state facts sufficient to constitute a caus...
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It appears that the appellants at the time the contract was executed objected to its phraseology and asked that it be amended in the particulars in which they now seek to have it reformed, that.its *268meaning might .be clear,, but that "they" were induced to refrain from insisting upon'such amendment upon representations made in behalf .of the .plaintiffs that the contract,.as drafted, did'clearl...
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The judgment sought to be discharged is a deficiency judgment obtained in an action to foreclose a mortgage given by the defend-, ant Crockett, the petitioner, and one John S. Roddy. The inov-’ ing papers show that on the 5th day of August, 1902, more than, one year prior to-the application for cancellation of the judgment, the petitioner, in voluntary bankruptcy proceedings duly instituted by him...
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The defendant and one George Collins were engaged in business, as copartners under the style of “ Collins & Nash.” On the 4th day of March, 1884, in an action in the City Court of New York, brought by this plaintiff against both Collins and Nash, upon a copartnership liability, but in which the defendant Collins alone was served and the defendant Nash did not appear, the plaintiff recovered a judg...
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The right of Benjamin F. Burke to recover as against the defendant has been determined by us in the appeal from the judgment of dismissal first rendered. We have examined the brief of the learned counsel for the appellant wherein he reargues the questions there decided and we see no reason for changing the decision then made. Two questions are raised upon this appeal, however, which were not raise...
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The expa/rte order of June 1, 1903, approving of the . contract between the special guardian -and Tyndall is ineffective- against this infant, who was not a party to the proceeding. Moreover the contract was made while'the action was being prosecuted by the plaintiff in forma pauperis,and by section 460 of the Code of Civil Procedure Tyndall was bound to prosecute that action withqtit compensation...
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In an opinion in Matter of Tyndall (117 App. Div. 294), the decision of which is handed down concurrently with the decision in this case, the facts are substantially stated as to the manner in which the respondent was appointed as general guardian. The application for his removal by the appellant was made upon various grounds. The application is not brought in the method provided by sections 2832 ...
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This was an application made upon the petition of Richard W. Hurtaugh for an order, to commit his wife, this respondent,. Sarah A. C. Hurtaugh,' to a hospital for the insane. The petition was accompanied by the certificate of two licensed examiners in lunacy, as prescribed by the-statute. Upon the hearing before the -surrogate the.petition was dismissed, and in the decree dismissing the petition c...
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Chapter 147 of the Laws of 1903 makes provision for the improvement of the Erie canal. -This improvement contemplates in some places a variation from the line of the canal as it now exists requiring the appropriation of new and additional land. By section 4 of that act it is provided that the State Engineer may enter upon and take possession' of and use “ lands, structures and waters, the appropri...
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The learned surrogate was of the opinion that the testator intended ■ to give Jennie King, now .Jennie King Hicks, the life use of $1,000 instead of- $2,000,- and that, in the event of her having a child who "should arrive .at the age of. ten years, such $4,00.0 should be hers absolutely, and that the purpose of the testator evidenced by the 7th clause of the codicil was to add $2,000 to the $2,00...
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The action was for negligence. The case was submitted to the jury by the court under the rule of law that notwithstanding negligence upon the part of the plaintiff, he might nevertheless recover if the defendant after such negligence occurred knew it or could by *315the exercise of ordinary care have discovered it in time to have avoided the infliction of the injury. The plaintiff was riding near ...
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The plaintiff was injured by an iron pipe falling on his head, and the verdict establishes that the negligence of the. defendant’s employees caused the injury. The plaintiff swears that since the injury he is nervous, at times is dizzy, is irritable, and suffers' pain in his side and in his head, and that his memory is defective. His evidence upon the trial- tended to show that lie had a good memo...
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The plaintiff caught his foot in a cattle guard in the defendant’s track and was run over by an approaching train, receiving serious injury for which he seeks to recover. It is conceded that the plaintiff had no business on the track, and the defendant was not called upon to exercise any care in looking out for his safety until it saw that he was in danger, and was then required to exercise the ca...
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With reference to the stocks and the policy of insurance in the Mew England Mutual Life Insurance Company, the determination *322of the surrogate is so clearly right that it is unnecessary to discuss those subjects. , With reference to the two policies in the. Connecticut Mutual e Life Insurance Company, the determination requires consideration* Those policies, upon their face, were payable to Mr ...
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In the year 1886 Frank L. Smith was appointed receiver of the property of the defendant in proceedings supplementary to execution. Such receiver has since died and the respondent is his duly appointed successor. Defendant at that time had an interest under the .will of his deceased father in certain real estate subject to the life interest therein of his mother. His mother is still living, and *32...
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It is alleged in the -complaint that in the year 1900 plaintiff through an agent purchased of the defendant five yearling heifers and paid therefor seventy-seven dollars; that prior to said purchase said heifers had been smuggled into the United States from the Dominion of Canada; that in the year 1903 they were confiscated by the Federal government-; and that by reason of such facts no title ther...
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In Dannat v. Fuller (120 N. Y. 558).it is said: “It- is a well-settled rule that where one party.demands strict performance as to time by another party, he must perform oh his part all -the conditions which are requisite in order to enable the other party to perform his: part, and a failure on the. part of the party demanding performance to do the preliminary work required in" order to enable the ...
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The Waverly Water Company is the owner of a fully equipped and established plant whereby for a long time it has supplied the village of Waverly with water for domestic purposes and for the ordinary purposes of such a village,municipality. Such plant consists of the appropriate franchises, lands, dams, easements, pipes, mains, reservoirs, hydrants and other property essential and pertinent to a wat...
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The action was originally instituted by William B. Weed as sole plaintiff. Thereafter, Florence J. Steenburgh was, by order of the court on her own motion, permitted to intervene as a party plaintiff and to appear as such plaintiff bj her attorney. Such order was granted without opposition, after notice to the original plaintiff Weed. From the papers used on the present motion it appears that it w...
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The counterclaim alleges deception, imposition and wrong dealing by plaintiff and his copartner for a period of nearly four years while acting in a fiduciary capacity for the defendants’ intestate. These allegations are in the most general terms and convey very little, if any, information as to' the precise facts constituting such malfeasance save the general statement thereof. Plaintiff in his re...
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This is an action on a policy óf fire insurance issued by the defendant May 21, 1902> covering a-barn on plaintiff’s farm in the town of Norfolk, St. Lawrence county,■ N. T. The barn, was destroyed by fire October 20,1903. The defense.is a breach of warranty in respect to representations concerning the subject-matter of the insurance made by plaintiff in her application therefor. Plaintiff has ...
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Order affirmed, with costs, on the opinion of Mr. Justice Henry T, Kellogg at Special Term. All concurred ; Parker, P. J., -not sitting. The following is the opinion delivered at Special Term: This is an application, for a writ of mandamus -to- compel the Citizens’ Rational Bank Of Saratoga Springs to exhibit its books and papers to William C. Taylor, a stockholder. A "stockholder may, for a .prop...
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The County Court was of the opinion that' the trial in the justice’s Court had proceeded on the theory that the action was one for conversion and not upon a contract. If that supposition was correct the reversal was right, as no cause of action in tort was proven. But we are unable to see from this record that the action was tried solely as one for conversion. The complaint in the first paragraph ...
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The manner in which the business was transacted at the so-called broker’s office at Kondout, and at the defendant’s main office at Albany, is not materially different from that described in Haight v. Haight & Freese Co. (112 App. Div. 475) and McCarthy v. Meaney (183 N. Y. 190). Here thére were no sales. or purchases of stock pursuant to the orders of the various customers. The business of those o...
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This is an application to perfect an appeal under section 1303 of the Code of Civil Procedure. The decree or order from which the appeal was taken was entered in Surrogate’s Court October 18, 1906. The notice of appeal was duly served, and an undertaking approved by the surrogate, with the .approval indorsed thereon, Was tiled in the surrogate’s office. October 22, 1906. The undertaking was execut...
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That Rufus King Palmer .took the property under this assignment for the purpose of. passing the property to the widow and children of John Palmer in precise accordance with the plan of distribution in the will of John Palmer seems 'to 'me of irresistible inference. With a widow, two sons and a daughter, John Palmer never gave that property absolutely to his son Rufus. Moreover, Rufus swears upon t...
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The action is upon a promissory note for $5,000 purporting to be executed by the defendant, a domestic corporation, with its place of business in the city of Little Falls, m the coiinty of Herkimer. The note was made payable to the order of the Newport Knitting Company, another manufacturing corporation located at Newport, in said county, and, as it is claimed, negotiated by it and for its benefit...
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Order affirmed, with ten dollars costs and disbursements, on opinion of Sutherland, J., delivered at Special Term. All concurred. The following is the opinion delivered at Special Term: This is an application for a writ of mandamus to compel the inspectors of election and ballot clerk officiating at a village election, held in the village of East Rochester on the 13th day of November,' 1906, to re...
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In this action for damages resulting from the death of plaintiff’s ’ intestate, the principal question of fact was whether the deceased had come to his death by leaving the car while it was running at full speed, or whether he had been thrown to the ground by the negligent starting of the car while he was alighting. An important witness for the plaintiff was one Hetsch, who professed to have seen ...
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Page 262
The action was begun by the service of a complaint on August 30, 1906. An. answer was served on October 8, 1906. The complaint alleged that plaintiff was a foreign corporation, as indeed its name indicated. 0,n December .22, 1906, the defendant obtained an ex 'parte order requiring the plaintiff to give security for costs and staying its proceedings until such security was given. It is settled by ...
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Upon the former appeal from a judgment for the plaintiff in this action the judgment was reversed and a new trial ordered (184 N. Y. 486). The decision of the Ootirt of Appeals determined the rights of the parties to this action under the first assignment made by thexplaintiff and her mother, dated April 13, 1891.. It was there held that the by-laws of the New- York Produce Exchange “ constitute a...
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The defendant was the contractor for the alteration of a building on the corner of Beehman and Nassau streets; what was called a bridge had been constructed over Nassau street about ten feet above the surface of the strefet, which extended' in front of this building to protect persons passing on the street during the progress of the alterations,, and the bridge was also used for the purpose of hol...
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The plaintiffs, as trustees, held a mortgage dated May 23, 1898, upon certain real property owned by the defendants and oné Nathan Lewis, since deceased, as tenants in common. The buildings ' on the mortgaged premises were insured, loss, if any, payable to the plaintiffs-as mortgagees. The property was conveyed to the defendants and Nathan Lewis on the 24th day of February, 1899, subject to the mo...
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The questions presented on this appeal are stated in the opinion of Mr. Justice Laughlin. There is one ground upon which I do not agree with him. The conveyance of the referee on the sale 'under the judgment in the foreclosure action is the foundation of the title; in that action no defendant, as representing the - heirs at law of the mortgagor, was made a party, it being alleged that the mortgago...
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It seems to have been held by the Court of Appeals in People ex rel. Corkran v. Hyatt (172 N. Y. 176) that no person can or should be extradited from one State to another unless the case falls ' within the Federal Constitution or statutes, and that the; power which independent nations have to surrender criminals to other nations as a matter of favor or comity is not possessed by the States. The Co...
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This action was for divorce upon the ground of adultery. The complaint alleged that on the 30th day of January, 1906, at the city of Denver in the State of Colorado, and elsewhere, the defendant committed-adultery with one Nellie Spencer, and that the defendant at divers other dates and times, and before the commencement "of this action, and at divers places, committed adultery with various person...
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“This action is brought to .recover for personal injuries alleged to have been sustained by the infant plaintiff by the negligence of the defendant. It was commenced by the service of a summons and complaint on the ’29th day of Jn-ly,. 1903, and issue was joined by the service of the defendant’s answer on the 11th of August, 1903. Immediately after the áct-ion was commenced the defendant endeavore...
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We think the order for substituted service was regular, it appearing that the plaintiff had made diligent efforts to serve the summons upon the defendant without success, • and that knowledge of the whereabouts of the defendant was persistently refused to those seeking to serve the summons, and that, therefore, the judgment, entered upon the failure .to appear and answer,was regular. The order for...
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This action was originally brought in the City Court by the receiver of the Federal Bank to recover the amount of two promissory notes made by'the defendant-for $500 and $454.50 respectively, each made payable to the order of the maker and indorsed by him. .
The complaint alleges that before maturity the notes were indorsed in blank by the defendant and discounted by the Federal Bank in due course...
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The defendant appeals from a judgment convicting him of the crime of grand larceny in the second degree upon which he was sentenced to a term of imprisonment in State’s prison of not less than one nor more than four years.
The validity of the judgment appealed from is attacked principally upon the ground that, taking all the evidence together, it is insufficient to sustain the finding of the jury ...
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Michael J. Gannon, the relator, who had lieen a member of the police force of the city of New York for upwards of fifteen years, was charged with neglect of duty, conduct unbecoming an .officer and violation of the rules of the police department. The specifications were, in substance, (1) that between nine-thirty and ten-thirty a. m. of March 11, 1905, the relator was absent from his post and in t...
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The relator is the son of the appellant. In Hovember, 1904, the son presented a petition praying for a writ of habeas corpus, in which he stated that his sister Miriam was being illegally restrained of her liberty by her father. The alleged illegal restraint consistéd, in substance, in keeping Miriam, against her will, in a house in which the father Was alleged to be living in open adultery with o...
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This action was brought to recover upon two duplicate policies of life insurance, of which plaintiff is the assignee. The material *451facts necessary to a disposition of the question presented, and concerning which there is no dispute, are as follows: In 1868 the defendant issued to J. Winslow Jones two policies of insurance upon his life in the sum of $10,000 each. The beneficiary named .in each...
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The defendant demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action. The. demurrer was overruled, and defendant' appeals from-the interlocutory judgment. One Newman, according to the allegations of the complaint, applied to the- plaintiff for a loan of $5,000-,. upon his promissory-note for that amount, payable four months after date. The ...
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I dissent. The contract of plaintiff with the defendant was that he was to have five per cent on the total cost of the viaduct. The defendant treated. the judgment obtained against it by the contractor as an addition to the cost of the structure. Defendant was authorized by law to issiie bonds for the building of the viaduct. It paid the judgment by a sale of such bonds. If the judgment had been f...
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The defendant was indicted- in January, 1902, charged with the crime of grand larceny, in the first degree, in having obtained $600 from one James A. Smith by falsely representing that a certain bond of the Hew York and Hempstead Railroad -Company, of the face value of $1,000, was- a subsisting and outstanding, first mortgage bond against said railroad not yet due, whereas, in fact, it was. not ou...
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The plaintiffs are box manufacturers, and the defendant is engaged in the lumber business, with its principal office in the city of Boston, and maintains a sales department in the city of Hew York, under the management of one Kennedy, connected with which, as salesman, was one Courtney. The plaintiffs required a special kind of lumber in their business, and gave an order to defendant’s salesman fo...
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A verified complaint was served to which defendants interposed a verified answer, and within twenty days thereafter served an amended answer. Thereupon the plaintiff served an unverified amended complaint to which the defendants served an unverified answer, and within twenty days thereafter served an unverified amended answer, which latter answer was returned by plaintiff on the ground that its se...
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The appellant Rose contracted to sell certain real estate to appellant Hill, who assigned the contract to defendant Monfried* who in turn assigned it to respondent, who brings this action to recover back the moneys paid, on the ground that the premises are subject to a restrictive covenant not provided for in the contract.
The contract of sale stipulated that the premises should be free from all i...
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The sole plaintiff being an infant he would have been entitled;, under the provisions of subdivision 5 of section 791 of the Code of *476Civil Procedure, to a preference on the-calendar had he pursued the proper practice. On the 8th day of October, 1906, the plaintiff’s attorney served a notice of trial for the November term following, together with a notice of motion for a preference, returnable ...
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The -appellant Corn was the owner and the respondent Burke the contractor for the erection of a building. Controversies' having arisen as to the amount due The contractor under his contract and for extra'work, and as to the amount which should be deducted therefrom in favor of the owner, the parties entered into a written agreement to arbitrate their differences before'a single arbitrator agreed u...
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The action is in ejectment, and its trial resulted in a judgment for plaintiff, which was entered February 18,1895, with $128 costs. Prior to the expiration of three years from the entry of this judgment, within which time, by the provisions of section 1525 of the Code of Civil Procedure, the defendant was'entitled to a new trial as of right, upon payment of costs, the plaintiff collected the cost...
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Counsel formerly representing the defendant had stipulated orally with counsel for plaintiff that certain books and papers .of the defendant might be examined without an order, or that in case of necessity an order so to do might be entered, which latter course was pursued. Meantime, however, defendant had changed attorneys and moved to be relieved from this stipulation and order, to which motion ...
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In the year 1898 one Frank W., Gilbert was the- owner of four apartment houses in the city of New York, which- he had just erected. On October 18, 1898, he mortgaged the houses to the German Savings Bank for $165,000, and also placed a second mortgage upon them for $15,000. The latter mortgage was executed to one Bedfield, who assigned it to one Sondheim, and it will hereafter be spoken of as the ...
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This action, to remove a cloud upon plaintiff’s title to real estate, presents an unusual state of facts. The-plaintiff on April-18, 1904, married Frederick E. Hamlin, now deceased. Shortly after .their marriage Frederick E. Hamlin negotiated the purchase of the two pieces of real property involved in the action; One piece, situated at Bellport in Suffolk county, was conveyed to plaintiff on Augus...
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Plaintiffs sued upon a quantum meruit for services alleged to have been rendered to defendant’s testator in preparing certain preliminary studies .for a city house. The plaintiffs produced, as the • studies for which compensation was sought, a number of sketches,for the most ..part rough and obviously intended, merely as suggestions of elevations and room plans. Of course, in order to recover it w...
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This action calls in question the validity of the 6tli article of the will of Henry M. Wells, deceased, and also the 3d article of the codicil to the will. The 6th article of the will reads as follows : “I give, devise and bequeath unto Grant Squires, in trust, all the rest, residue and remainder of my estate, to the following uses and purposes: (l)-To pay over therefrom unto my wife,- Alma L. Wel...
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Many, and perhaps most, of the objections to the title urged by plaintiff are insufficient to justify its refusal to perform, but I think there is a practical impossibility of accurately fixing the lines of the land proposed to be conveyed, and the difficulty arising therefrom *506is accentuated by the fact that there appear to he encroachments upon the property. I .think,.therefore, that the titl...
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This controversy comes before the court upon an agreed statement of facts, and involves the question whether or not the will of Mary A. H. Munroe, deceased, confers upon. her executors an/ implied power to sell her real estate, for it is'obvious a'nd conceded that the will contains no express power of sale. Upon the determination of that question depends the'-other, which is whether or not the def...
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The plaintiff sues to recover an amount of money paid by him upon a contract for the purchase- of .real estate, and his expenses incurred in examining the title, and to establish a lien therefor. -The court below has found the objections to the title to be unsubstantial, and insufficient to warrant the plaintiff’s refusal to complete the contract, and-upon the findings of fact embraced in the deci...
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The petitioner appellant, being one of the ¡executors named in a paper purporting to be the will of Charles Bubens, deceased, filed in the surrogate’s office on July 19, .1906, a petition asking that said paper be admitted to probate as the last will and testament of said Bubens. The petition contained the following allegation : “That the said deceased was at the time of his death a resident of th...
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The defendant has, on two previous occasions, answered the plaintiff’s complaint, and the .plaintiff demurs to-this third effort to set up a defense to the cause of action- alleged in the c'omplaint. The action is brought on a promissory note made by the defendant to the order, of one McCuaig, which note-was indorsed to the Sovereign Bank of Canada for value before maturity. This much is conceded,...
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On the TOtli of November, 19.05, this’plaintiff recovered a judgment. against the defendant herein in the Supreme Court of the District of Columbia,-and such judgment remaining wholly unpaid, this action was brought upon it in" the month of March, 1906. Oil - the trial of the present action a document purporting to be a duly authenticated copy of the record of' the judgment of the Supreme Court of...
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The action is to recover damages for an alleged libel, and is brought " ■by the plaintiff on two alleged causes .of action predicated upon two articles published in the New York Herald. ■ The complaint-alleges that for more than ten years the.plaintiff was, and now is-" an artist an’d cartoonist, of national reputation for ingenuity and-skill in his profession-,.and was and -is the originator of t...
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It appeared from the petition that the relator, the Ferdinand Munch Brewery, brought this proceédiñg as the assignee and attorney in-fact of Bosa Tubbiolo, to whom a'liquor tax'certificate issued to-Frances Gagliano had been-- transferred, to obtain a mandamus directing the State Commissioner of Excise to prepare and issue two .orders for the payment, of' the rebate claimed to be due upon' said li...
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The evidence tended to establish, that in the window of the defendant’s residence was exhibited a. sign, “ Dr. E. Burton Allcutt, Mechano Neural Therapy;” that on the bell outside the door was the name “Dr. Allcuttthat in the office building on Twenty-second street in which the defendant had' :an office there appeared upon the directory in the hall, “ Dr. E. Burton Allcutt; ” that he had and distr...
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This proceeding was brought by the city of Yew York through the commissioner of docks to acquire the interests not owned by the city in pier old Yo. 19 and pier old Yo. 20, East river, and the bulkhead rights appurtenant to the bulkhead between said.piers. While the rights of the city and the claimants to the piers in question were undivided-, yet said piers were, by practical construction, divide...
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The plaintiff served a complaint. The defendant Skelly, upon an affidavit in which he alleged that more than one cause of action was attempted to be pleaded, in said complaint, and that he was. unable to properly prepare his answer, unless the plaintiff served an amended complaint separately stating and numbering the two . alleged causes- of action therein described, made a motion at Special Term ...
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This is an,appeal from an order requiring the service of an "amended complaint, and the matters relating thereto have been considered in the memorandum on the appeal from the order of December twenty-seventh (117 App. Div. 559), handed down herewith. The order appealed from should be affirmed, without costs.- Present — Patterson, P: J., Ingraham, Laughlin, ' Clarke and Scott, JJ. Order affirmed, w...
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This action was brought to recover damages for personal injuries resulting in the death of the plaintiff’s intestate by reason of the alleged negligence of the defendant. The summons and complaint were served on the 13th day of Septembér, 1906. On the 19th day . of November, 1906, prior to -the last day to plead, an order to show cause was obtained why an order should not be made requiring the pla...
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The complaint alleges two causes of action: First, that on March 26, 1908, plaintiff was lawfully occupying her rooms at 332 Cherry street; that one Geottardo Ferrara, a servant of the defendant, was engagéd in the regular prosecution of his duties as street sweeper of the street cleaning department on Cherry street. That while, so engaged and in the regular discharge of his duties, the said Ferra...
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The complaint alleges that heretofore the defendants, for and in consideration of the securing by the plaintifE of notification to the defendants of the fact that Cottier & Co. desired certain work to be performed at Ho. 3 East' Fortieth street, in the borough of Manhattan, city, county, and State of Hew York, for and in consideration of the securing by thé plaintifE of the notification to the def...
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This is an appeal from an order of the Special Term denying a motion of the defendant Cananea Consolidated Copper Company for an order vacating the service of the summons upon it through William C. Greene, its president. This is a stockholder’s suit brought by the plaintiff on behalf of all the stockholders of the Cobre Grande Copper Company (an Arizona corporation) similarly situated, for the pur...
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It appears that Patrick A. Fogarty died February 25, 1889, leaving a last will and testament, in and by which he appointed Hugh O’Reilly, William Purcell and the petitioner, Patrick Skelly, executors and trustees. Letters testamentary were issued to them and they qualified and entered upon the discharge of their duties. By a proceeding instituted in the Surrogate’s Court, of which all parties in i...
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The plaintiff was a coachman in the employ of Mrs. Jay. On the 21st day of November, 1900, at about four o’clock in the after*588noon, while driving her horses attached to a carriage down Fifth . avenue, and when opposite1 the building at the southwesterly corner of Forty-fourth street and Fifth avenue, known as “Sherry’s,” he was struck by part of a. skylight blown from the top of said building a...
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The action was brought in the Supreme Court, county of Hew York, to recover the sum of $761 for services. With its answer to the amended complaint the defendant served an offer of judgment for $313.85, together with interest thereon and the costs of the action. Upon the trial of the action the plaintiff obtained a verdict for only $279.35. - The offer of judgment was filed and by consent of the pa...
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The charge upon which the defendant was convicted is, in,effect, that on the 31st day of December, 1903, he,, then being president of a labor union, obtained from one George J. Essig the sum of $1,000 in money and seven promissory notes, aggregating $1,700., by fear induced by a threat made to Essig, who had a contract for the plumbing work on “ The Chatsworth ” apartment house on Seventy-second s...
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The motion was made.on an order to show cause granted by a justice of the Supreme- Court on the 4th day of September, 1906, upon the application óf Bernard Giles, on his affidavit and on the affidavit of Harry S. Middleton. The affidavit of the-applicant showed unqualifiedly,- among other things, that he was a citizen and duly qualified elector of the twenty-fifth Assembly district" in-the county ...
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In this case the affidavit which asserts the facts positively shows that the elector whose name it is sought to strike from the enrollment book, enrolled from Ho. 9 Mulberry street, and that the affiant resides at that number, but it does not show whether it is a private house or boarding house or a tenement, or whether the affiant is the janitor, lessee or proprietor, or that he is in a position ...
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The material facts presented by this-record'differ from those preented in the Matter of Titus (117 App. Div. 621), argued and decided herewith, only in that the affiant, who asserts the, facts positively, resided next door'on the same avenue to the number *638from whicli the elector enrolled, and consequently the opinion in that iqatter is decisive of this appeal. - , • . It follows that the order...
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On the 12th day of July, 1904, the plaintiff sold and delivered to the defendant 113 shares of the capital stock of the Merchants’ Trust Company, a domestic banking corporation, for $25,000, being a little more than $220 per share, the par value of each share.being $100. The defendant paid to the plaintiff the sum of $22,600 on account off the purchase price of the stock and gave a promissory note...
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Appeals from two interlocutory-judgments overruling the defendants’ démurrers to the complaint. The complaint alleged that plaintiffs recovered a judgment against *645defendant Belford for the sum of $1,119.37 on November 10,1905, winch was immediately docketed and execution issued thereon to the sheriff, who returned the same unsatisfied on November twenty-third ; that on October 18, 1905, and fo...
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Upon the former appeal in this case (176 N. Y. 269), which was from a judgment entered, on a verdict directed for the plaintiff, the Court, of Appeals held that “ the city cotild not deprive the principal and his sureties of his right of .review without taking the chances of loss should such review and a subsequent trial had by reason -of it result favorably to the principal; that midway, between ...
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The defendant O’Brien, as commissioner of water supply, gas and electricity of the city of Hew York, advertised proposals for bids to furnish four pumping engines for the city of Hew York. The advertised proposals for bids provided.that “ Each bidder shall submit with his bid or estimate evidence that will prove to the satisfaction of the Commissioner that he is prepared to furnish all the necessa...
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Appellant is an infant whose mother died leaving a last will' and testament of which respondents are executors and trustees, which provided that the residue of her estate should be invested and the "income applied to the maintenance and support of appellant during his minority, and on his arriving at the age of twenty-one-years any accumulations from the income and the principal to be paid over to...
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The order setting aside the verdict and granting a new trial, from-which the plaintiff appeals, recites that the motion was "made upon , the ground, amongst others, that the verdict was against the weight of evidence. In a ‘ memorandum opinion, the learned trial court stated views respecting the case, -in which we do not concur. It is the order, however,, which governs our consideration of the app...
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The plaintiff are the owners of the premises Ho. 149 West Thirty-fourth street, which have b'een used and occupied by them for many years past as a private dwelling! The defendants Straus, doing business under the firm name of It. H. Macy & Co., are the-lessees of the premises on the northwest corner of Broadway ánd Thirty-fourth street, eastward of and immediately adjoining pláin-. tiffs’ propért...
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In the year 1901 a copartnership known as “ Delmonico’s ” existed for the purpose of carrying on a restaurant in the city of Mew York. . This partnership consisted of Eosa Delmonico* owning four-sixths parts; Josephine C. Delmonico, with one-sixth, and Lorenzo C. Delmonico, the remaining-one-sixth interest. The latter became the manager of the business. In 1993 it became known that Lorenzo C. Delm...
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The plaintiff, suing individually and as an executor and trustee under the last will and testament of David Stevenson, deceased, *692brings this action against the David- Stevenson Brewing Company, JamesdVIcClenahan, individually a'nd as ah executor and trustee under the last will and testament of David Stevenson, deeéásed, and joins as defendants all the heirs and next of kin, legatees and devise...
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This is an action by the executor of and trustee under the last will and testament of Wallace 0. Andrews, deceased, for a construction of the will of his testator. The will was executed, on the 12th day of November, 1891, and the testator died in the city of New York on the 7th day of April, 1899, leaving real property in the States of New York, New Jersey and Virginia, and certain personal proper...
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The defendant comes within the express terms of section 52 of the Insurance Law, and unless there is something in the contract between plaintiff and defendant which would be violated if the section is to be applied, we can see no reason why the section should not be complied with. We are unable to find, from anything contained in the agreed statement of facts, that the contract between the parties...
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If the provision for adding to the reserve for the protection of Class A policyholders of the sum of one dollar for each one thousand ' dollars of insurance written in Class B policies can be considered in any sense a contract between the company and the Class A policyholders, there was certainly no such contract respecting, insurance written under the present organization of the company. At prese...
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The dividends over which this controversy has arisen may be divided into two classes, those declared and -partly paid out of capital, and those declared out of surplus, the payment of which did not, however, impair the capital. The dividend which plaintiff seeks to recover falls within the former class. Nothing is better settled than that dividends should be paid out of surplus and profits, and ca...
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The plaintiff was about thirty-five or thirty-six years of age. He was injured in an accident upon' the defendant’s railroad a Seventy-second street and Eleventh avenue under circumstances which the jury has' found entitled him to recover damages, which have been fixed at $17,655.02 by the judgment from which the defendant appealed, as well as from the order denying a new trial. It appears that Se...
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The plaintiff, a judgment creditor of the defendant Buckley, brings this action and asks to have it adjudged that certain real property, the title of which is now in the defendant Slauson, is held by him as trustee for the creditors of Buckley, and to set aside as fraudulent a deed of said premises to Slauson by the defendant Murphy. When we get at the facts of this case, apart from the law as dis...
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Plaintiff appeals from a judgment dismissing his complaint on the merits, entered on a nonsuit granted at the close of the plaintiff’s evidence, and from an order denying a motion for a new trial. The action is for negligence which is claimed to have caused a collision between one of the defendant’s trolley cars and the wagon in which the plaintiff was riding, at the intersection of Cassilis avenu...
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This is an appeal from an order denying the motion of the petitioner to be relieved of her purchase on a partition sale. The petitioner objected to the title because of five mortgages appearing unsatisfied of record." Said mortgages were all due more than twenty years before the date of sale and there is no proof of any payment of principal or interest within said period. It appears undisputed tha...
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The action was brought to recover a balance of $229,10 alleged ■ to be due for goods sold by the plaintiff to thé defendants at the city of Méw York and delivered in Florida, or to carriers át Mew *751York, designated by the defendants. - It seems to have been practically undisputed that the plaintiff sold the defendants goods to the amount of $979.10 on two days in the month of August, 1904, and ...
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I think the ordfer appealed from is reviewable and that it was improperly granted. The action was commenced by personal service of the summons on the defendant in the month of June, 1906, S,nd the time to answer expired on July 11, 1906. More than two months after the time to answer had expired, viz., on September 1Y, 1906, the defendant caused a notice of appearance to be served by his attorneys ...
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The action'is brought to recover money paid on account of- the .purchase price of real property contracted to ,be conveyed to the plaintiff’s assignor. It is based on an alleged defective title. The defendant’s title depends upon the validity of proceedings to sell an. infant’s real property pursuant to section 2348 et seq. of the Code - of Civil Procedure. The defect alleged is the absence of the...
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This ease is not free from difficulty, because of inconsistencies between the two theories upon which the plaintiff seeks to sustain the judgment. The plaintiff alleges that he entered into copartnership with the defendant George W. Egbert for the purpose of purchasing, developing and selling an unimproved tract of land referred to in the record as the “ Ditmás tract; ” that the purchase price in ...
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The plaintiff was the holder of a chattel mortgage conditioned for the payment of the sum of $4,500, which the mortgage recited was the sum in which the mortgagors were then indebted to the plaintiff. In consideration of the satisfaction of said mortgage the testator, of the defendant Saunders gave the plaintiff the written guaranty sued upon, in which he guaranteed the payment of the indebtedness...
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The action is to recover interest on an award for the taking of lands for public park purposes by the city of Hew York under chapter 522 of the Laws of 1884. The awards were confirmed on Decern*769ber 12,1888, whereupon title was vested in the defendant. On March 2,1891, demand was made upon the comptroller for payment. The award had been made to the “ Estate of F. Grote.” In J une, 1897, the plai...
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The action for negligence .was tried at Trial Term without’a jury. The court found that the defendant, a municipal corporation, maintained a sewer in front of the plaintiff’s premises and adjacent to them, and that ■ owing to the negligence and carelessness of the *774defendant in maintaining the sewer and other sewers in connection,, water.and sewage flowed upon the plaintiff’s premises to his da...
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This appeal is from an order confirming a referee’s report and from “ the judgment in said proceeding.” The appellant petitioned that Gilbert, as an .'attorney in charge of its claims against Minister, he compelled to pay over to it $142 with interest, dr be punished for contempt.. The ground of the petition was that Gilbert had collected said sum u]3on a claim. Upon the hearing the Special Term o...
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When-the plaintiff’s first judgment was reversed and a new trial was granted, with costs to abide the event (97 App. Div. 230), and the plaintiff succeeded upon the second trial, he was entitled to tax the costs of both trials. The learned counsel 'for the appellant argues that in effect the plaintiff thereby profits by a wrong proceeding. The point has been urged before and the force of it recogn...
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The learned court submitted the. case to the jury, and instructed it that the issue was whether or not the plaintiff received an electrical shock by stepping upon the rail. “ If he did receive an electrical shock by stepping upon the rails of tins track, and was. injured in that manner, he is entitled to recover.” At the close of. the charge the learned counsel for the respondent said : “ I ask yo...
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The facts, as they have been found by the jury upon sufficient evi.dence, appear to be as follows: The plaintiffs are engaged in the real estate business in Hew Rochelle. The defendant went to them looking for a house to rent. During the -time that the parties were looking for a suitable house the plaintiffs and defendant discovered a house known as the Haulenbeek house. It bore a sign stating tha...
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The relator is a resident of Richmond county and was a clerk in the bureau of school supplies in the board of education of the city of New York and was entitled to a salary of $1,-200; per year. He was concededly within the provisions of section 1067 of 'the Greater New York charter (Laws of 1901, chap. 466),,.which provides1 “The city superintendent of schools', any'associate city superintendent,...
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We are of the opinion that there must be a "reversal in this case. It appears that at the trial the physician who treated the plaintiff for the injuries complained of, and who had treated him for injuries received in a prior accident, was not present as a witness and did not testify. . On the cross-examination of the plaintiff he undertook to explain away the absence of his physician, and after st...
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The plaintiff’s action is for damages alleged to have been sustained by reason of the defendant’s obstructions in the waters of the Hudson river, preventing the plaintiff reaching its docks. The theory of the action is that the defendant, through its construction and maintenance of sewers, and by dumping snow and ice in the Nepperhan stream, which flows through the defendant city and empties into ...
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Abram R. Strang, a resident of Westchester county, died in January, 1888, leaving a last will and testament, disposing of real estate and personal property of the aggregate value of $21,832.50." The property was disposed of in such a manner as to bring it within the terms of chapter 713 of the Laws of 1887, amending chapter 483 of the Laws of 1885, and a tax of $517.15 was levied and assessed unde...
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This is an appeal from a judgment dismissing the complaint in an action for specific performance. In consideration of this dispose tion we must remember that such relief is “ largely in the discretion of the equity courts ” (Dunckel v. Dunckel, 141 N. Y. 434), and that in Stokes v. Stokes (148 id. 716) the following rule was quoted and approved : “ A contract must possess certain elements in order...
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The first of these ajipeals is from an order of the Surrogate’s Court declaring the estate of the deceased to be exempt from payment of a transfer tax. The second appeal is from an order of the Surrogate’s Court affirming the order from which the first appeal is' directly taken. The merits of this controversy are with the Comptroller, the appellant. The same question was argued and decided in Matt...
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The complaint alleges two causes of action, one for' conversion and one on contract, for goods sold and delivered. The.plaintiff *811might have waived the tort in his pleading and then the action would have proceeded as one on contract. This he has not seen fit to do, and defendant was entitled to' have the causes of action separated and numbered. (Code Civ. Proc. § 483.) It lias become the settle...
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This is au appeal from an order and the judgment entered thereon quashing a writ of certiorari issued to review an assessment against the city of Mew York, upon the ground that the petition upon which such writ issued did not show sufficient facts to vest jurisdiction in the court: The only questions before us are whether the allegations of the petition regarding the assessment of the aqueducts an...
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The order for the preliminary injunction provided, among other things, “ that the defendants and each of them be enjoined and restrained from • permitting any show other than 'the ‘ A1 Reeves Company ’ to play or appear at the Dewey Theatre during the week beginning December 17, 1906, and that the defendants and each of them be enjoined from preventing the ‘ A1 Reeves Company ’ from appearing and ...
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This appeal is from an order of the Special Term denying plaintiff’s motion to vacate an order for -a commission to examine witnesses in the State of Hew Jersey upon interrogatories. The original order was defective, and the learned justice at Special Term sought to remedy the defect by an order providing that a commission issue in which no person was named as commissioner. Authority to take the t...
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Barnet. Shapiro owned houses which were-for sale. Leder, of /the brokerage firm of Leder & Zellerrneyer, called the houses and the price to the attention of Michel, of the firm of Michel & Scott. Michel made a memorandum, including the owner’s name, and went to look at the houses. Some months after, Michel & Scott attempting to call the owner, Barnet Shapiro, to the. telephone called up another Ba...
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The suit was begun against Manning, this plaintiff’s predecessor; but to avoid confusion I shall speak of Manning as Mossein.
I think that this judgment is erroneous. The defendant was a surety. Johnson secured a judgment in a Municipal Court against Mossein, as president, etc., by default. - After a deal of practice between the parties the Special Term made an order of correction so that Mossein ...
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The learned trial court in .decreeing specific performance only allowed the plaintiff on account of the purchase price the $50 paid-on delivery of the contract,, and this is why the plaintiff appeals. The judgment is correct, for the contract, when delivered gave notice to- the plaintiff that the' agent had no authority to collect the monthly installments. The defendant never waived this, ' Instea...
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By the charter of the city of New York a city magistrate may not hold a court of Special Sessions and try misdemeanors as formerly. He may only try, but not as a court, charges,of those lesser things which do not amount to misdemeanors, of which vagrancy, or being a disorderly person, or that a child begs, Or is without proper guardianship, and the like, are examples (Code Cnm. Pro. secs. 887, 899...
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If the defendant's contract had been made after the plaintiff's contract of service with the corporation, it would be without consideration to the defendant and void, for the plaintiff's agreement to do what he was already bound to do by the prior contract wou1d be no legal consideration (Carpenter v. Taylor, 164 N. Y. 171). But the allegation is that they were made simultaneously. Does that make ...
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It is claimed, by the appellant that the plaintiff- (now deceased) was not .a resident of the State at the time of the commencement of the action, and therefore could not maintain1 the action for the reason that the appellant is a foreign corporation (Code Civ. Pro. sec. 1780). There was no such issue on the pleadings. Our Supreme Oourt being a court of general jurisdiction its jurisdiction is’ pr...
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Assuming that the machine is correctly described in the opinion in Crown v. Orr (140 N. Y. 450), that case was not like this one. There the plaintiff was injured by having his hand caught in the revolving knives of the' planing machine while he was replacing the hood on the top of the machine which covered the knives. The hood being off, the knives were fully exposed, and the danger of them obviou...
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The complaint contains two causes of action, viz., one for the amount due tó the plaintiff on his contract of service for a year at the time of its breach by his discharge by the defendant, and the other for the damages caused by the breach. They are not one *837cause of. action; the test is that a recovery on one of them would not bar an action on the other (Perry v. Dickerson, 85 N. Y. 345). The...
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The complaint alleges that the defendant agreed to 'deliver to the plaintiff 800,000 bricks in the city of Troy on or before May 12, 1906, but that he failed to deliver 144,250 thereof, to the plaintiff’s damage $288. A second cause- of action is that the plaintiff overpaid the defendant $190.50 on the contract. Instead of meeting the complaint with a denial or denials, as the simple rules of plea...
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Section 18 of the Labor Law (Laws of 1897, chap. 415) provides that the employers of persons to labor “ shall not furnish or erCct, or cause to be furnished or erected for the performance of such labor,' scaffolding, hoists, stays, ladders, or other mechanical contrivances which are unsafe, unsuitable or improper, and which are not so constructed, placed and operated as to give proper protection t...
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This suit is properly brought in the name of the village instead of in that of the board of health (Board of Health v. Magill, 17 App. Div. 249) ; but the complaint does not state facts sufficient. Section 21 of the Public Health Law empowers local-boards of health to make and publish general orders and regulations for the preservation of life and health, and also orders and regulations not of gen...
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Page 362
Stripping this complaint of its verbiage and making it lean, we find' a cause of action for damages for breach of the contract, and another for damages for fraud in inducing the plaintiff to make it. They are not “consistent with each other”, and therefore cannot be united in the same complaint under subdivision 9 of section 484 of the Code of Civil Procedure; and that is the only authority for un...
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Judgment' and order affirmed, with costs, on the opinion of Mr Justice Kelly at Trial Term. Hirschberg, P. J., Woodward" and Miller, JJ., concurred ; Gather, J., read for reversal, with whom High, J., concurred. The following is the opinion of Mr. Justice Kelly delivered at Trial Term: The plaintiff sued to recover damages sustained, as she alleged, through the negligence of the defendant in faili...
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The plaintiff testified that she'slipped on the curb at the corner óf two streets and fell on the cross-walk; that she could not balance and save herself on the cross-walk on the ice and snow there, of which she gives no description. The first of her three witnesses to the accident says he saw her “ slip off the sidewalk,” try to balance herself in the gutter and fall on the- cross-walk; - and tha...
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This judgment should be affirmed. There was no consideration for the agreement to pay the additional $10,000 at the expiration of the term of sel1 vice, the promisee being already bound by the written contract to serve for the time and the yearly salaries therein fixed (Tolhurst v. Powers, 133 N. Y. 460; Arend v. Smith, 151 id. 502). There is no room for the claim that the doubtful meaning of the ...
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What is called the sanitary code of the city of Hew Y ork is made up of health ordinances adopted from time to time during a course of years by its board of health (Laws of 1873, ch. 335, sec, 82); and the charter of the new city enacted that this code, to the extent that it was then “ in force,” was and should continue to be binding and in. force in the new city (Laws of 1897, ch. 378, and of 190...
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The-plaintiff appeals from a judginent dismissing his complaint upon the merits. In November, 1905, the plaintiff commenced ah action in the Municipal Corirt against William Pfeiffer for the recovery of a money judgment in which' a .warrant", of attachment issued, and a-city marshal attached* certain property in the-possession of the defendant in that action.' Before its removal one Minnie *881Pfe...
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This action was brought to recover the statutory penalties for the refusal of a gas company to supply gas to the occupant of a build-. ing. The statute is that if an owner or occupant of a building situated within 100 feet of a main of a gas company make application in writing to the company to be supplied with gas, and pay the deposit required by the statute, the company shall supply such gas, no...
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This is an appeal from a final order of the Municipal Court in a summary proceeding dismissing the petition on the merits. The lease was executed by the landlord on the 1st day of May, 1903, *886and demised the;premises to the tenant for a term of one year from . that date, rent being payable monthly; it was further provided "therein that “ Said party of the second part (the tenant) its successors...
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We think plaintiffs complaint-was improperly dismissed.. She. was seriously injured by a fall upon an obstruction at a crossing on the corner of Flatbush avenue and Dean street, in the borough of Brooklyn. It/appears that the gutter had been filled ^with concrete several years before the accident, as a convenience to enable an occupant of one of the stores fronting upon this crossing to draw his w...
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Consideration of this appeal requires the construction of the 5th paragraph of the will of the deceased. He died on the 24th day of November, 1901, a Eter having been a member of the firm of Marx & Kawolle for upwards of thirty-one years. On May 19,1900, Marx & Kawolle entered into an agreement to continue their copartnership for a further term of five years, and by that agreement an elaborate sch...
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This is an appeal by the defendants from an order.denying their ' motion to. change the place of trial from Rockland county" to Hew ' Yoi’lc county. If the motion rested solely upon the convenience of the witnesses, we would-not disturb the decision of the Special Term. But the record presents other facts" which convince us that the motion should he granted. The action is for breach of" two contra...
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The action is for specific performance of a contract made by the respondent’s testatrix, whose will was admitted to probate in the District of Columbia. The respondent is sued as executor and trustee, and by demurrer seeks to raise the question of. want of • jurisdiction. • It is not disputed that the courts of this State have no jurisdiction over a foreign executor, but the appellants seek to sus...
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This case lias been tried twice, each trial resulting in a verdict for the plaintiff. On the first trial the court set aside the verdict and dismissed the complaint. This we held was error (107 App. Div. 265), but as we were not satisfied with the' verdict we did not reinstate it, but granted a new trial. The defendants now appeal from a judgment entered on a, second verdict and from an order *11d...
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The plaintiff has a judgment entered on the-verdict of a jury for damages consequent upon an alleged unlawful ejection from one-of the defendant’s cars; The defendant claims that the complaint should have been dismissed. The jury were at liberty to find from the plaintiff’s evidence that he entered a car on one of the detendrán t’s cross-town lines, paid his fare and demanded a transfer, which he ...
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The plaintiff sued for a fee for legal services alleged to be due to him from the defendants. The defendants in their answer set up that the plaintiff’s services were not worth the sum of fifty dollars, the amount claimed in the complaint, and denied the agreement to pay the same. They also interposed a counterclaim for thirty-five dollars, made up of two items, twenty-four dollars for four months...
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This action is to recover moneys alleged to have been paid under a mistake of fact. Plaintiffs had judgment and the defendant appeals.
One William Barnes died July 2, 1885, leaving a last will and testament purporting to bequeath and devise all of his property to his wife. A child was born after the making of the will, which fact is shown by the record of the proceedings admitting the will' to pro...
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Woodward, Jenks, Hooker, Rich and Miller,- JJ., concurred. The following is the opinion of Mr. Justice Wilmot M. Smith : If the entire devise of the premises in question was invalid because of the lack of capacity of all the beneficiaries for whose benefit the *24devise was made to take the same, there can be no question that the trust estate and power of sale given the executors would also fail,,...
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Hirschberg, P. J., Jenks, Hooker, Q-aynqr and Rich, JJ., concurred.
*26The following is the opinion of Mr. Justice Garretson:
The denials and averments of the answering affidavit submitted by the defendant upon information and belief, do not put in issue the allegations of the relator’s petition. (People ex rel. Kelly v. Common Council, 77. N. Y. 503; People ex rel. Frost v. N. Y. C. c& H. R. R. ...
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We are entirely satisfied with the conclusion reached by the referee as to the main question involved and would affirm the *28judgment upon his opinion were it not for the fact that we think he erred in fixing the date from which interest should be allowed. Under the provisions of article 15 of the association a member owning unpledged shares was entitled to withdraw' upon giving written notice to...
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The complaint in this action alleges that the plaintiffs are copartners, engaged in the business of publishing and selling musical compositions, which business is carried on under the name of The Morris-Iiarris Music - Publishing Company; that the defendant is a domestic corporation; that on and prior to the 15tli day of September, 1906, the plaintiffs, owned a musical 'co'mposition known as “ He’...
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On the 14th of August, 1903, the plaintiff entered into a written contract with one Liebeskind, who then owned a piece of real estate in the city of New York upon which he was erecting a six-story apartment, to install therein, for $3,100, to be paid to him at times stated in the contract, a steam heating plant consisting, among other things, of a horizontal tubular boiler, pipes extending through...
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On the 11th day. of September, 1902,. between five and six o’clock in the morning, the plaintiff was a passenger on one of the defendant’s south-bound Third avenue cars. He took the car at Forty-second street and as it approached Twenty-sixth street he testified he indicated to the conductor a desire to get off at that point; that, in obedience to the information thus imparted, the car was brought...
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This, appeal relates solely to a question of practice. The learned district attorney proposed certain amendments to defendant’s proposed case on appeal, some of which were allowed, and thereafter defendant’s counsel moved to resettle the case by restoring what had been stricken out. The motion to resettle was denied in part and he appeals from that part of the order. At the beginning of the charge...
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The judgment appealed from must he reversed. There-is absolutely no evidence to sustain a finding that the assignment of the Baker & Berringer notes or the trade marks was .made for the purpose of. hindering, delaying or defrauding creditors or that the money paid to the firm of Warner & Co. on the indebetdness of the J. F. Smith & Company after the 25th of March, 1899, was paid with the intent of...
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The facts necessary to be considered on the question involved in the appeal from the judgment in this action are stated in the opinion delivered in the case of Van Slyck v. Warner (118 App. Div. 40), decided herewith, and, therefore, it is unnecessary to restate them.
As to the judgment against Woodruff, there is absolutely no evi*48dence to sustain the finding that the assignment to him was made ...
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The action, as limited on the tidal, was brought to recover the value of services rendered by the plaintiff, as consulting engineer, to the defendant during the period commencing in the month of October., 1901, and ending in the month of November, 1902. On the 25th day of April, 1895, plaintiff was appointed consulting engineer of the defendant by a resolution duly adopted by its board of director...
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The plaintiff has recovered a verdict for $1,000 damages, alleged to have been sustained in consequence of personal injuries to his wife, alleged to have been caused by defendant through the negligence of its servants in starting a car, which had been stopped at a point where passengers were customarily received and discharged, pursuant to her signal while she “ was in the act of alighting therefr...
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The plaintiff alleged that she performed' certain household services for the decedent and furnished her board and household necessaries, and advanced moneys to her at the request of ■ the decedent and upon her promise to pay the plaintiff the sum of $5,000 therefor by making a provision in her will for the payment thereof, but that the decedent died intestate, and judgment is demanded for the sum ...
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The material facts are fully stated in the opinion of Mr. Justice Ingraham. It does not appear that the conversation between the client and the person who represented the plaintiffs in procuring the retainer, upon which it is sought to invalidate it, took place before the retainer was signed, or that the client was induced thereby to execute the retainer. I am of opinion, therefore, that' the appe...
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This is an action by one of the sons of Benjamin F. Olmsted, deceased, for a partition or sale of real e'state devised by the will of plaintiff’s grandfather, Silas Olmsted, to the issue of his two sons, William F. and said Benjamin F., after tlie death of the survivor of them. The property was sold during the. pendency of the action by the executor of said Silas Olmsted, pursuant to a power of sa...
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The plaintiffs were copartners engaged in manufacturing and selling cigarettes. The defendant was a stockholder and president of the Retail Cigar and Tobacco Dealers’ Association of Hew York, a domestic corporation. With a view to inducing the plaintiffs to give credit to his company, after negotiations between the parties, the defendant wrote, signed and delivered to the plaintiffs a guaranty as ...
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This is a statutory action to recover for the "death of John H. Ward, alleged to have been caused by the negligence of the defendant. The original complaint alleges that the decedent was in the employ of the defendant and was killed on the 29tli day of July, 1903, while engaged in the construction of a power house at Fifty-ninth street and Eleventh avenue in the borough of Manhattan. The plaintiff...
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The lien was filed on the 25th day of July, 1906. Two days prior to the expiration of the time within which the lienors were required by the statute (Lien Law [Laws of 1897, chap. 418] § 17, as amd. by Laws of 1902, chap. 37) to commence an action to foreclose the lien, they obtained an order from the Special Term of the Supreme Court pursuant to said section, continuing their lien for sixty days,...
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The motion to discharge the liens upon giving an undertaking was made by the Twelfth Ward Bank, which held an assignment from the contractors of part of the moneys to be paid by the city under the contract. The first claim made by the appellants is that such an assignee has no standing to obtain a discharge of the liens. The statute only expressly authorizes the discharge upon the application of t...
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The complaint alleges two causes of action, one for damages for wrongful refusal to accept certain bricks tendered under a contract of purchase and sale, and, second, for money laid out for the use and benefit of the defendant at its request. The defendant has not yet answered. The complaint sets up the contract in ipsissimis verbis, and alleges the acceptance of two deliveries thereunder and, upo...
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This is an appeal from an order granting an in j unction ■'pendente lite.. The action was brought to restrain the defendant from depriving the plaintiff of the use of gas by reason of the plaintiff’s refusing to pay therefor more than at the rate of eighty cents per 1,000 cubic feet as provided by chapter 125 of the Laws of 1906. The complaint is similar to that served in the case of Richman v. Co...
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The defendant, á lumber manufacturer, agreed to sell to plaintiff, a lumber dealer, twenty carloads of West Virginia clear spruce *99lumber at a specified price per 1,000 feet delivered at the city of New York. Only a part was delivered, and the plaintiff, claiming breach of contract by defendant and that the market price of this class of lumber had largely increased/ brings this action to recover...
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The action is in conversion and by his amended complaint the plaintiff alleges that on the 6tli day of March, 1905, he delivered to one Gertenbach certain goods and chattels, consisting of meat and fish market fixtures and tools, without parting with the title thereto, and that subsequently Gertenbach delivered them to the defendants, who, on demand, refused to surrender them to plaintiff. The ans...
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The plaintiff and defendant own respectively premises Nos. 74 and 76 Horatio street in the city of New York. Many years ago the locality was a residential- one and. both parcels were owned by one Cutting who conveyed each subject to a covenant that no “ buildings other than dwelling houses or stores of brick, stone or marble of at least two stories in height covering the whole front of each of the...
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The complaint alleges that on the 2d day- of November, 1903, through plaintiff’s general agents and managers, the defendant Ring was appointed local agent for plaintiff, with power to write and issue policies of fire insurance, and that thereafter and on the 9tli day of August, 1904, such appointment was revoked" and annulled, and that notwithstanding such revocation the defendant continues to act...
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This is an action for partition in which the interpretation of a' will is asked, brought by an alleged devisee under the will. An issue is raised by one of the defendants, a daughter of the decedent, that the testator at the time he executed the will did not have testamentary capacity, and that the instrument was not signed, published and declared in the manner provided by law so as to be entitled...
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This is the third time this cause has been before.us. on'appeal (77 App. Div. 326 ; 97 id. 457), and it is unnecessary to state in detail the facts appearing upon the record. The plaintiff is'a corporation, and the defendants were partners, who in December, 1898, owned a barge named the F. W. Stetson, which was stranded on the Long Island shore. It is alleged in the complaint that at the special i...
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This action is based upon a contract in writing which the defendant has insisted from the commencement of the litigation was void upon grounds of public policy. On two former appeals, after trials on the merits, wherein the record not only presented the contract, but proof of the nature and extent of the services rendered thereunder, this court adjudged that the contract was valid (56 App. Div. 24...
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This is an action by a judgment creditor to establish a lien upon property of the judgment debtor in the hands of a second assignee thereof.
On the 28tli day of December, 1891, a certificate of incorporation incorporating the “ John J. Hayes Machine Company ” as a domestic corporation was duly filed. The certificate stated that it was to be formed “ to manufacture and sell machines of iron, steel,...
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This action was commenced on the 5th day of July, 1901, for rental damages from February 16, 1897, to June 26, 1900, for the alleged maintenance and use by the defendant of the viaduct railroad structure in Park avenue opposite premises then owned by the plaintiff, situated on the northwest corner of Park avenue and One Hundred and Thirty-second street. The lot has a frontage on Park avenue of twe...
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This. action was commenced April 30, 1900, to recover damages for diminution of rental value alleged to have been caused by a trespass upon the easements appurtenant to plaintiff’s premises situated at the southeast corner of Park avenue and One Hundred and Eighth street, by reason of various railroad structures erected at different times in front of said property. .The premises are known as Ho. 1...
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This action was commenced in 1875. The original parties were Evan Jones (plaintiff) and John Jones (defendant). The parties to the action had been partners, and as such had owned certain real property which had been purchased with tlio money of the copartnership, some of which had been used in the copartnership business. An answer was interposed by the defendant John Jones, and the case came on fo...
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The only questions which I deezn at all matei'ial upon this appeal arise upon exceptions to the cliaz-ge of the learzzed trial judge.
Upon the trial a witness nazned Jzilia Collins was called for the plaintiff. She testified that ozze CuiTy, who was an inspector in the employ of the defendant, azzd whose duty it was to see witnesses and obtain from them a statement of what they could testify to in...
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The action was brought to recover the -damages sustained by the plaintiff as an employee of the Senderling Manufacturing Com- . pany. The complaint alleges that the defendants were doing business under -the firm name and style of The Senderling ■Manufacturing Company. This allegation the defendant denies. Whereupon the fact that these two defendants were doing business under tins corporate name- w...
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Benjamin Richardson, the testator, died on the 20th day of February, 1889. He left a last will and testament which was admitted to probate, by which William T. Washburn and Emma J, Richardson were appointed executors. By this will, after leaving some legacies and devising some real estate, the testator gave to his executors in trust the residue of the real estate and to his granddaughter, Ella Bir...
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The complaint alleges that the defendants, the executors under the last will and testament of one Elizabeth W, Aldrich, deceased, advertised for sale at public auction on. October 25, 1905, certain real property upon Broadway in the city of New York, which ivas a portion of her estate ; that the plaintiff wag authorized by the *171Hamburg-American Steamship Company to make an offer to the defendan...
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The People, by the Attorney-General, commenced this action, alleging that an election was held in the city of New York on the 7th day of November, 1905, at which the defendant was declared elected mayor of said city, and has since occupied that office, but that at such election the greatest number of legal votes was cast for one William Randolph Ilearst, and he was duly and legally elected mayor o...
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This action was brought to recover damages sustained by the breach of a verbal contract alleged to have been made on April 30, 1902, for the sale by the defendant of 9,000 tons of coal, 1,000 tons to be delivered in each month until the 1st of February, 1903, at three dollars and ninety cents per ton. To prove the contract'the "plain- *182- tiff testified that lie first called on the defendant on ...
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This action was commenced in 1896 upon a demand note dated October 1, 1895. Ho answer was interposed by the defendant and no judgment was entered. The original defendant made payments on account. He died, however, on May 12, 1897,"leaving a will which was admitted to probate and letters testamentary issued to William Woodward Baldwin on Juno 23, 1897. The executor advertised for claims and on the ...
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This action was commenced to require the individual defendants to account for their conduct as officers of the defendant Utopia Laud Company, and to annul an annual meeting of the corporation. At the commencement of the action the plaintiff obtained- an injunction restraining the defendants and each of them from al'L acts, including the'annual election of officers or the removal of the present off...
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The matter in controversy between the parties comes before the court upon the submission of an agreed' state of facts. The plaintiff was an agent.of. the defendant under a contract" dated, September. 15, 1896, which, was for an indeterminate period and was terminated' by the defendant on Tune 15,1905. The ques-' tion involved is as to plaintiff’s, right to receive commissions upon . renewal premiu...
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The only question necessary to be considered on this appeal is whether or not section 98 of the Railroad Law* imposes a duty upon a street surface railroad company to keep in permanent repair the pavement between its tracks and two feet in width outside its tracks, irrespective of any request or demand on the part of the local authorities. The defendant’s position is that no such duty is imposed u...
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The complaint alleges that a contract was entered into on March 4, 1904, for sale and delivery by plaintiffs to defendant of a quantity of hops, of which a part was to be delivered and received during the season commencing in December, 1905, and a part during the season commencing December, 1906; that defendant has repudiated the contract and refused to accept the hops deliveranle in the *206seaso...
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This action is brought upon four promissory notes, aggregating $125,000, made by the Industrial Securities Company and indorsed by defendants. It appears from the evidence that in the year 1902 the defendants purchased from plaintiff a controlling amount of the common and preferred stock of Southern Car and Foundry Company for upwards of $600,000". By arrangement between the 'parties, and apparent...
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Appeal from judgment for personal injuries. Plaintiff at the time of the accident was about six and one-half years old, and was normally bright for his age and accustomed to go into the street* unattended. It was conceded that he “ was of sufficient age and intelligence and discretion to appreciate to some extent the necessity for caution and the necessity for exercising some judgment and discreti...
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The parties to this action are both attorneys. The defendant in 1904 was about to visit the State of Panama, and was employed by *214plaintiff to obtain, if possible, from the authorities of that State certain concessions relating to mineral properties. A contract was drawn between the parties whereby'defendant agreed to use his best efforts in that regard, and plaintiff agreed to compensate defen...
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The complaint in this action alleges the recovery of a judgment by plaintiff against Burnett,Y. Tiffany for necessaries furnished by it with ’the consent of defendant trustees and the return of execution unsatisfied; the bankruptcy of Burnett Y. Tiffany, and the appointment of the defendant Hosmer as. trustee; the death of Charles L- Tiffany, .the probating of his will and the. appointment and qua...
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The complaint alleges that the defendant “ falsely, wickedly and' maliciously ” composed and published, and caused and procured to be published of and concerning- this plaintiff, the following letter: “ Hew Yobk, Sept. 12, 1905. “ The Rev. Father John Collins, “ Fordham, St. John’s College, “Hew York City.: “ My Deab Sib.— When with Mr. Macnamara I last saw you, you informed us that you would inte...
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The appellant, the owner of lots, a portion of which were taken in this proceeding, appeals from the order confirming the report of the commissioners of estimate and assessment, his grievance being that the commissioners have refused to include in their award'compensation for a building erected by him under the following eircum*225stances: On December 31, 1901, the commissioners were appointed in ...
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On the 28th day of November,. 1891, an agreement was made wherein oné H. G-. Bond was party of the .first part and Charles L. Cblby and Cjolgate Hoyt were parties of the .second- .part. By that agreement Bond agreed to sell to the parties of the second *229part, or their assigns, for the sum of $350,000, of which $50,000 had been paid to the party of the first part, an undivided two-thirds interes...
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Plaintiff sues for specific performance by a vendor of a contract for the sale of real estate, or for compensatory damages, which upon the trial were stipulated to be $4,000. The court awarded plaintiff a judgment for the amount paid down on the contract and the expense of examining the title, and from this judgment plaintiff appeals. The sole question in the case is whether the evidence justified...
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This appeal involves only the’ question as to the reasonableness of a rule adopted by the defendant corporation requiring that passengers desiring transfers must obtain them from the conductor at the time of paying fare, and that no transfers will be issued on the cars at any other time. . .
The defendant owns or controls and operates a large number of street car lines in the city of Rew York, som...
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Action by a vendee of real estate for specific performance. The plaintiff appeals from a judgment dismissing the complaint. The contract was made on ■ March 1, 1905, and provided for a conveyance of the property free from incumbrance. The title was agreed to be closed on March 31, 1905, but the date of .closing was adjourned to April twenty-fifth. In the meantime it had come to the knowledge of th...
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This action was brought to recover damages for an alleged libelous publication, which is set out in -the complaint. The innuendo *257charges that the article intended to accuse the plaintiff of drunkenness in the public street and in a public police station, and by reason of said drunkenness the plaintiff was rendered a physical and mental wreck, thereby destroying his reputation for sobriety and ...
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The defendant appeals from a judgment convicting him of the crime of forgery in the third degree, and from orders denying motions for a new trial and in arrest of judgment. The indictment under "which the conviction was obtained was drawn under section 515 of'the Penal Code, which provides, among other things, that a person who, with intent to defraud or to conceal any larceny or misappropriation ...
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The action was brought to recover the possession of 500 shares of the capital stock of the Oil Fields of Mexico Company and of 10,000 shares of the capital stock of the Yacas San Marcos Mining and Milling Company, deposited by the plaintiff with the defendant as collateral security for the payment of plaintiff’s demand promissory note, and in case possession could not be had for damages.
At the cl...
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■ This‘is an appeal by the city from an order of the Special Term confirming the report of the commissioners of estimate, and appraisal of land taken by the city on Fifty-ninth and Sixtieth streets, between Avenue A and First avenue, as a site for the approach for the Blackwell’s Island bridge. Notice of the intention to apply for the appointment of commissioners of estimate and appraisal'was date...
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This is an appeal by the executors and trustees under the last will and testament of Thomas W. Evans, deceased, from an order of the Special Term requiring them to give a discovery and inspection of the books, inventories and records of their trust estate. Certain of the executors and trustees brought this action in the Supreme Court of this State, making one of their coexecutors and trustees a pa...
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This action is brought by a trustee in bankruptcy óf a corporation known as W. 0. Loftus .& Company to recover from the Gansevoort Bank .the sum of $15,000 and interest alleged to- have been paid to that hank on the eve of the corporation’s bankruptcy in" violation of section 48 of the Stock Corporation Law (Laws of 1892, chap. .688, as ámd. by Laws of 1901, chap! 354).
The corporation of W. O. Lo...
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In the year 1904 the Broadway Trimmed Hat Company, a domestic stock corporation, had a deposit account with the defendant trust company, and at various times obtained from that company loans represented by promissory notes and secured by the assignment of outstanding accounts. On May 23, 1904," the trust company held two promissory notes of the trimmed hat company, one dated February 17, 1904, for...
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On the 31st -of August, 1902, Henry Belden, then a resident of the city of Hew York, died. On the 14th.of June, 1904,letters of administration were issued to the plaintiff, and as such he shortly thereafter brought this action to compel the defendant William Belden and other nominal defendants claiming through him to account for certain property alleged to belong to the intestate. In *297October, ...
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This action was brought for the specific performance of an alleged agreement and for an accounting. The answers of the different defendants put in issue the existence of the agreement and the right of the plaintiffs to the relief claimed. After issue had been joined, an order was made referring the matter to a referee to hear and determine, and the plaintiffs appeal therefrom. The appeal is well t...
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On the 1st of March, 1905, the defendant purchased from the plaintiff forty bales of hops, as evidenced by a written instrument, of which the following is a copy: “Brooklyn, H. Y., March 1st, 1905. “Bought to-day off Mr. Paul Horst (20) twenty bales choice Oregons at 29 cts., (20) twenty bales choice Hew York State hops at 30 cts. per lb., deliverable in 10 or 15 bale lots, as per written order of...
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I am Of the opinion that the plaintiff was entitled to the benefit of -the formal amendment to the complaint made on the first trial. It only related to the date that the contract became of force. The contract bore date the day it was originally alleged to have been made. The amendment changed that date from November 20, 1901, to January 3, 1902, the day the. defendant mailed the contract signed b...
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Frederick Bedford died on the 28th day of December, 1891, leaving a last will and testament, which was duly admitted ,to pro- - bate bn the 25th day of January* 1892, by the-Surrogate’s Court, of the county of New York, as a will of real and -personal property. He appointed his brother, Gunning S. Bedford, and his friend, .Eugene L. -Bushe, executors of his. will and. trustees of the trusts thereb...
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The evidence with respect to the understanding of the parties as to the.meaning of the words “more.or less” was, of course, incompetent in an action based on the contract as it stands. The evidence shows good record title in the defendant to the southerly 170 feet of the premises described in the contract and in the second deed tendered by her. The testimony of the surveyor called by the defendant...
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In April, 1904, the respondent, as attorney for the petitioner, collected, for her from a benevolent life insurance order a claim of $8,000. In August following proceedings were begun by petition and order to show cause to compel the respondent to pay to the petitioner such money, and-$l,963.21 was paid to her, the respondent retaining the sum of $1,036.19 as his fees and disbursements. The retent...
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The action is by an employee to recover for injuries alleged to have been, caused by the negligence of the employer in the conduct . and management of blasting an excavation for a building. The complaint-alleged, in general terms, that plain tiff was hit by flying rock and splinters scattered by the explosion through the carelessness and negligence of the defendant and his agents or. servants, and...
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The plaintiff was a track repairer in the employ of defendant and his duties required him to work on. its elevated structure, around and between the railway tracks upon which trains were being operated. In charge of the gang with which plaintiff was working was. a boss or foreman named McEwen, and a part of his prescribed duties was to warn the workmen, when on the track, of approaching trains. At...
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On the 15th day of December, 1902, Messrs. Greig, Goodrich and Dresser were three of the fifteen directors of plaintiff. Greig was president and Goodrich vice-president, and both were members of the executive committee of five, of which one Driggs was chairman. Greig,. Goodrich and Dresser were indebted to the defendant upon a loan of $15,000 secured by 500 shares of stock of the Trust Company of ...
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The appeal is from a final judgment in an action for an accounting respecting commissions received by defendant as purchasing agent for certain Cuban railway companies.
Plaintiff’s testator was purchasing agent for these corporations, and on the 12th day of i March, 1900, he transferred such business to defendant on the agreement that he should be paid one-half the commissions received by the defe...
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The motion for an inspection was denied by the learned court-at Special Term upon the ground that the matter was. res adjudicata. (Memphis Trotting Assn. v. Smathers, 114 App. Div. 316.) . When a motion for inspection was before this court upon the former appeal it appeared conclusively upon the record that the affidavit of which an inspection was desired had been destroyed and for that reason we ...
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The complaint in this action alleges, in substance, that the defendant corporation, was organized for the purpose of buying *365and selling real estate, and in pursuance thereof made certain purchases for which it paid or agreed to-pay upwards of $100,000, of which sum a little over $21,000 was contributed by the shareholders and the balance paid by taking the property subject to two mortgages ; t...
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On proceedings for the probate of the last will and testament of John A. Disney, deceased, the appellant, a daughter of a deceased *379sister of the testator, not provided for by the will, filed contesting allegations, and asked that in case of admission to probate the surrogate construe the residuary clause thereof. That clause provided as follows :
“ Seventh. All the rest, residue and remainder ...
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Upon the trial of this action, which was to recover for services rendered by the plaintiff to the defendant, a receipt signed by the plaintiff had been introduced in evidence. When plaintiff was on the stand he was handed this receipt and asked what explanation he had to make as to his signature to the paper. That was objected to by the defendant and the objection sustained. Other questions' were ...
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One of the relators was a candidate for justice of the Supreme Court and the other a candidate for judge of the Court of General Sessions of the county of New York at the general election held on the 6th of November,. 1906. The relators on the 26tli of November, 1906, presented a petition to the Supreme Court which alleged that “ the certified original statements of the results of the canvass in t...
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The defendants. are stockbrokers, and the plaintiff opened an account with' them in or before the year 1902. In 1903 the plaintiff called upon .'the defendants and had an interview with Mr. Sullivan, a member of the firm, in reference to his stock .transactions. There is a disjzute as to what occurred, but the jury might properly ñnd that the plaintiff arranged to have his transactions cared for d...
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Prior to May 22, 1905, the defendant John Motrie was the owner of a life estate in certain property in the city of Kingston. His daughters, Margaret Motrie and Helen Motrie, were entitled to the remainder. Between eleven and twelve o’clock upon the said twenty-second day of May John Motrie entered, into a written *396agreement with this plaintiff to sell to hi in the said property for the sum of $...
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' The defendant might well have asked for a more specific statement of the alleged agreement on the part of Eiley, the attorney, as to who should advance the money, as to how much he should advance, and as to the conditions upon which such purchase was to be made. Having failed to ask that the complaint be made more definite and certain he cannot now complain that no cause of action is stated if, ...
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By section 114 of the negotiable Instruments Law (Laws of 1897, chap. 612) the liability of an irregular indorser is defined. It is there declared: “ Where a person, not otherwise a party to an instrument, places thereon his signature in blank before delivery, he is liable as indorser in accordance with the following rules: “ 1. If the instrument is payable to the order of a third person, he is li...
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By the contract of insurance between the company and the husband, he agreed to make certain annual payments on each July first for ten years, in consideration of which it was to pay the wife the amount of the policy upon his death. Whether she would ever realize anything upon the contract depended upon the mariner in which he performed his contract. She stood iñ no contract relations with the comp...
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The demurrer for insufficiency and lack of capacity to sue is-based upon the failure to definitely allege where or by what officer or court the order appointing the plaintiff as trustee in bankruptcy of the defendant Wheeler was made or where and when it was entered. The allegation is that h.e was “ duly appointed the trustee * * * by an order duly made on the 16tli day of- March, 1905.” It may be...
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While it is not-so stated in the record it is evident that the decision of the trial justice in dismissing the complaint was placed outlie ground that the accident was caused solely by the negligence of a coemployee. The respondent claims this, and the appellant concedes that the evidence shows that the collision was caused either by the negligence of the engineer of the leading engine on- the “ w...
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It is claimed by the defendant that McKallor caused this suit to be instituted to take the life of the defendant for the purpose of leaving his company, of the same name, the only one in existence, and that the action is not for a public but fora private purpose. A sufficient answer to this contention is that the action was instituted by the Attorney General in the name of the People under a pro v...
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The defendant operates a double-track electric railroad between Albany .and Schenectady. The plaintiff, being in the service of the defendant as a motormau, was injured in a collision which occurred between four and five o’clock in the'morning of September», 1903. Asserting that the collision was occasioned by the defendant’s negligence, he .seeks by this action to recover damages for such injurie...
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Plaintiff has recovered a second verdict for personal injuries due to the defendant’s alleged negligence. The judgment entered on the first verdict was reversed, the opinion of the court being reported in 109 Appellate Division, 449. The facts are there stated in detail. Repetition thereof is here unnecessary. At the first trial plaintiff testified that as he crossed track 2 in front of the mail c...
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On March 24, 1903, Peter B. Turnbull, the plaintiffs’ intestate, received from the Fultonville National Bank a certificate of deposit, of which the following is a copy: “ The Fultonville National Bank. “No. 10387. $100. “ Fultonville, N. Y., Mar. 24, 1903. “ This certifies that P. B. Turnbull has deposited in this bank One Hundred Dollars payable to the order of himself or Geo. H. Turnbull on the ...
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The plaintiff purchased a cultivator of the defendant, who was selling carriages and farm implements for one Horton. The price of the cultivator was thirty dollars, of which ten dollars was paid at the time of purchase. The plaintiff claims that he subsequently paid the balance to the defendant and then said to him: “ Have come to pay balance on cultivator; ” that he gave him twenty dollars and to...
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The unchallenged facts are that the defendants leased to the plaintiff the first and second floors of their building for five months from December 1, 1904, at a monthly rental of seventy dollars, ■ payable in advance ; that the first month’s rent was paid; that the lease was under seal, and embraced in it was a covenant that the plaintiff shall and may peaceably and quietly have, hold and enjoy th...
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The relator sued out a writ of habeas corpus, claiming to be illegally deprived of his liberty by the custodian of the Albany County Penitentiary. It appears that he was held under a judgment of the Otsego *458.County Court, which recites that the defendant was duly indicted for the crime of assault in the second degree; that he was duly arraigned and plead not guilty; that he was duly tried by th...
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The principal question in this case is whether the sale by the sheriff of the property in question was completed.
The property was duly exposed for sale October 6, 1904, under executions issued against the property of the Yuengling Hudson New York Breweries, and was bid off by the appellant for about $1,600. On the.day of sale the appellant offered to pay the amount of his bid, and the sheriff sai...
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The action is for negligence, and the complaint makes the necessary allegations to bring it under the Employers’ Liability Act (Laws of 1902, chap. 600). The plaintiff was employed by the defendant as superintendent of its knitting mill. The respondent urges that because the plaintiff was the defendant’s superintendent he was the alter ego of the master and, therefore, the Employers’ Liability Act...
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The order appealed from denies the plaintiff’s motion to correct the prayer for relief in his complaint and to have the cause transferred from the trial jury to the equity calendar of the court, on a preliminary objection that no proposed "amended complaint was served The prayer for relief was for a money judgment only. At the time of the commencement of the action it had been decided by this cour...
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I agree with Mr. Justice. Chester that the Statute of Limitations does not affect any question herein. ■ I also agree with him that the Sibley Manufacturing Company stock, the Langley Manufacturing Company stock and the Augusta Factory stock belonged to the trust estate and that the estate of Mrs. Putnam should be held accountable therefor. I think the estate of Mrs. Putnam is erroneously charged ...
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The decree appealed from -revokes the letters testamentary issued to George M. Burr, the executor named in the will of Henry A. Sheldon, deceased. It was made upon the petition of Mary E. Wiggins, who was one of the residuary legatees and next of kin of said deceased. The proceedings were instituted under section 2685 of the Code of Civil Procedure, providing for the revocation of ■letters and und...
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Oil June 25, 1906, the respondent, Marie S. "Wiggins, filed in the surrogate’s oifiee of Broome county a petition having for its object tlie appointment of an administrator with the will annexed of Henry A. Sheldon, deceased. In such petition she described herself as one of the legatees and next of kin of .said deceased. It was therein alleged that letters testamentary had been previously issued t...
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The plaintiff, a receiver appointed in an action for the sequestration of the property of the Albany and Hudson Bailway and Power Company, seeks.to recover of the defendants the par value of certain stock of the company, alleged to have been fraudulently obtained by them from the company without consideration. It is somewhat difficult to determine from tlie mass of conclusions set out in the compl...
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It is claimed that the defendant, as sheriff, on March 18,1905, sold the plaintiff’s wood on an execution against liis wife, and for that alleged conversion of liis property he has recovered here. The defendant asserts that in February preceding an attachment against the plaintiff’s wife was delivered to liis deputy, who went to the . place where tiie wood was and levied upon it, and immediately w...
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Cream cheese, as it is now-known, was first prepared and offered for sale by one Lawrence at Chester, H. Y., in the year 1872. It was put upon the market as cream cheese; others began to manufacture the cheese and Mr. Lawrence adopted the trade name of “ Star Brand ” for his product, and other manufacturers made and marketed cream cheese under the trade name “ World Brand,” “ Globe Brand,” “ Eagle...
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The report of this case in 105 Appellate Division, 140, gives the history of the litigation and many of the facts. Other facts are: Twenty-two days before his death the testator came to reside with Dr. Walrath, the principal beneficiary, and remained with him. The will was executed eleven days thereafter. There had previously been no particular relations between them except the doctor was his tena...
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The return of the justice shows the appearance of the plaintiffs and that the defendant did not appear; that the plaintiffs complained by verified complaint and that, after waiting an hour, the defendant not appearing, lie rendered judgment upon the verified complaint. The alleged complaint purports to be sworn to by one of the plaintiffs before the justice on the day judgment was rendered. The mo...
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The crime was committed in the town of Woodstock, where the defendant was born. Por the last five or six years .before the trial he had lived in that town, but prior to that time he had resided for many years in the city of Kingston and was well known there; One klerritt, who resided in the city of Kingston, swore that hé had known the defendant for twenty-five or thirty years; that defendant had ...
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By the inventory the appraisers, in Schedule A, set off to the widow the specific items of personal property as directed by subdivisions 1 to 4 of section 2713 of the Code of Civil Procedure. In Schedule B they set off to her the remaining household furniture of the value of $28.40, and not finding enough furniture to make up $150 added $137.60 of value in cows and other property. By Schedule 0, u...
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The plaintiffs’ closed carriage was driving along the highway approaching a road intersecting it from the left at an acute angle as they approached it. The defendant with his automobile was traveling in the same direction. Plaintiffs’ carriage, in turning from the road into the intersecting road, did not turn to the right of the center of intersection of the two roads, as required by subdivision C...
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■ The Rochester, Corning, Elmira Traction Company was incorporated in July, 1906, for the purpose of constructing and maintaining and operating by electricity a street surface railroad from the city of Rochester in the county of Monroe to the city of Elmira in the county of Chemung, a distance of about 120 miles, passing through a portion of the county of Monroe, also through Livingston and Steube...
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• The facts are not in dispute and are fully stated in the findings of the learned trial court, to which no exception was taken. So far as material the facts are that during all the times in question the plaintiffs were severally engaged in keeping hotels in the town of Randolph in the county of Cattaraugus, N. Y. At the general election held in and for said town in November, 1903, the four excise...
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David White, of the county of Niagara, died October 29, 1902 leaving a last will and testament. In the first item, after a legacy to the wife of his brother Patsey, lie provided: “ I give and bequeath to my brother, Patsey White, the pse of my house and seventeen acres of land lying on the extension of Mill Street, in the town of Boyalton, until the last of my children shall become of age. Then th...
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The complaint sets out and the proof tended to establish a cause of action within the Employers’ Liability Act (Laws of 1902, chap. 600). - The plaintiff’s intestate Was in the: employ of. the- defendant engaged in cleaning the engines from ashes in an- ashpit provided, *537for that,purpose. This ashpit was connected with the defendant’s yards at East Buffalo, w'as constructed of cement and adapta...
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The plaintiff on the 21st day of March, 1-904, was struck by one of defendant’s trolley cars on Abbott road, in the city of Buffalo, and was injured, and, brings this action to recover fór such injuries. Abbott road runs in an easterly and westerly direction, and two tracks of the defendant are operated along it, the outside rail of either track being about nine feet from the curb. The plaintiff W...
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The judgment and order should be affirmed, with eosts.- ' The action was to recover damages for personal injuries alleged to have resulted from the defendant’s "negligence. The injuries were caused by the fall upon plaintiff’s head of the lower part of a chute, used to slide merchandise from the second to the first floor in defendant’s manufactory:" Upon sufficient evidence the jury found this par...
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The exceptions „ taken by plaintiff should he- sustained and the motion for a new trial gi’ánted, with costs to plaintiff tg abide event. The action is to recover .damages for injuries to plaintiff alleged to have resulted from defendant’s negligence. _ The nonsuit was granted, for failure to make a case for the jury *551as to the defendant’s negligence. Only this question need be considered here....
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The judgment and order should be affirmed, with costs. The action is to recover damages for personal injuries alleged to have resulted from defendant’s negligence. The appellant claims *554there was insufficient evidence upon, which to base the findings by the jury of negligence on the part of the defendant and absence of contributory negligence by the plaintiff. ' The facts which the jury might f...
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The' judgment and order should be reversed and a new trial granted, with costs to appellant to abide event!
The action was. to recover damages for injuries to the plaintiff, alleged to have resulted from defendant’s negligence. The plaintiff was a carpenter, and at the time of the accident was working in the defendant’s bank building, which was being reconstructed and repaired. With another carpen...
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The order should he affirmed, with ten dollars costs and disbursements. .The motion in County Court was based upon the claim that the judgment was void for want of.jurisdiction in the Municipal Court of the city of Buffalo to render the same. It was claimed the court lost jurisdiction' of the. action by adjourning the same against defendant’s objection. The case, having been adjourned from time to...
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While the evidence was undisputed that the plaintiff rendered legal services for the defendants at their request, for which the plaintiff, was entitled to recover what they were reasonably worth, *567if the testimony of the plaintiff is to be taken as true, yet even in that view, the value of the services was a question of fact for the jury; but beyond that the testimony on behalf of the defendant...
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While the jury were well warranted in finding a verdict of no ■cause of action in this case,, we think the rule of law by which the jury were instructed to determine the.defendant’s liability was incorrect. The controversy was over the right of the plaintiff’s son to-draw- against:, the moneys deposited in the plaintiff’s name, and. to . charge, the same against that account. It was claimed by the...
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We agree to the general proposition that claims or demands sought to be set off must not only be mutual to the extent that they are owing by each to the other, but must also be due and payable. But this rule is not without its exceptions. And one of the. exceptions is that where an insolvent makes an assignment owing a debt • due at the time of the assignment, and also holding a claim not then due...
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The sole question- for- our determination upon this appeal from the order of revocation is whether a certain double building is one building or two within the meaning of the Liquor Tax Law. This building and one other are.the only buildings within 200 feet of the premises for. which the certificate was issued. The owners of the double building have consented to the traffic in liquors upon the prem...
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Appellant’s motion for reargument was founded upon the claim that certain findings of fact, made by the court at his request, were inconsistent with and directly contradicted the material finding of .fact, made by the court, upon which respondents’ right to the . judgment, directed in the court’s conclusions of law, was based.
The only question presented to the court at this time is whether the fi...
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Ho controverted question of material fact appears in the record presented in this case, and a recital of the facts disclosed by the evidence will direct us to the well-settled principles of law to be applied in determining the rights of the parties to the action, which the judgment should have declared. The plaintiff with his two brothers, Horman and Allen Hine, and his sister, Harriet A.' Hunting...
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Substantially the only evidence which tends to implicate the defendant in the commission of the burglary of which he was convicted is that of the self-confessed criminal who claims that lie aided the defendant in committing the crime, and another who claims to have received from the defendant certain articles under the belief that they had been stolen. Such of the stolen. property as was recovered...
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For the purposes of this review it will be assumed that the findings of fact made by the referee are supported by evidence, and only such other facts as are not controverted will be considered. In March, 1899, the plaintiff was employed as a laborer by the defendant in its street department at a wage of one dollar and fifty cents' per day, and from that time until about the twenty-eighth day of De...
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The action is commenced by the plaintiff in his own behalf and all others similarly situated as creditors of the Boclrester-Mexican Plantation Company, a domestic stock corporation, to recover of the stockholders of such corporation sums alleged to be unpaid on their stock. The. action is in equity, and the stockholders and receiver of the corporation are made parties defendant. Section 54 of the ...
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Webb was the only witness on behalf of the People of the commission of the alleged crime. He testified that while waiting for a train in the Erie railroad station in the city of Buffalo he was asked by the defendant Davis to go with him for a cup of coffee. .They went together to a saloon, where they met the defendant Smilie. Davis produced a-five-dollar bill and Smilie produced one of ten dollars...
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This action was for the specific performance of a contract by which the defendant Todd agreed to assign and convey to the plaintiff certain leasehold property in the city of Mew York. The agreement was dated July 16,1904, and was between the defendant Louis L. Todd, party of the first part, and Tracy W. Pratt (plaintiff), party óf the second part. This agreement recited that the executors of Charl...
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Prior to January 15, 1884, Henry Villard was the owner of a jfiece of land on the east side of Madison avenue, between Fiftieth and Fifty-first streets, in the city of Mew York, and with a depth of 175 feet easterly from Madison avenue. Contemplating the improvement of this property, he had a map of it made, which was dated May 16, 1883, and was filed in the office of the register of the county of...
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On or about March 30, 1904, one E. M. Devine delivered to the Ross Lumber Company, a copartnership doing business under that name, a check for $215, payable to its order. That check was never indorsed by or with the authority of such copartnership; Sub*653sequent!y and on the day of its date there was written on the back of this check the words “Boss Lumber Co.,— L. P. Mingey, Atty.,” and the chec...
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In January, 1904, plaintiffs’ firm, as then composed, entered into an agreement with the English-Greene Company, a domestic corporation, of which the defendant was secretary, under which they were to make certain advances to the Greene Company and all sales of its goods were to be made through them ; they were to send out all goods sold and all accounts were payable to them, the balance over advan...
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The plaintiff filed a notice of mechanic’s lien against certain real estate belonging to the defendant Wilson, which was discharged before the commencement of this action by the giving of a bond or undertaking in accordance with subdivision 4 of section 18 of the Lien Law (Laws of 1897, chap. 418), upon which bond the appellant was surety. Subsequently the plaintiff brought this action to foreclos...
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The action was brought to recover damages' for the defendant’s alleged breach of contract for the construction of a dam and power plant upon the Hudson river, in the counties of Saratoga and Warren, at a place known as Spier Falls. The defendant, claiming that the breach of contract had been by the plaintiff, pleaded as a counterclaim its damages resulting from said breach. Upon a former trial the...
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This action was brought by the plaintiff as executor of. the last will and testament of Charles G-. Havens, deceased, and trustee under his will. The purpose of the action was to have determined whether or not certain provisions of the will creating annuities and providing for their payment by a charge in the first instance, upon certain real estate, created valid or invalid trusts. The plaintiff ...
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The plaintiffs are members of a copartnership known as Wilmerding, Morris & Mitchell, engaged .in business in the city of New York. The defendant is a domestic corporation conducting a general telegraph business. The course of dealing between plaintiffs and defendant, continuing for about ten years, has been as follows: When the plaintiffs desired to send a telegram they would ring the messenger c...
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The alternative writ of mandamus allowed on the 6th day of Hay, 1905, alleged'that on or about Hay 6, 1903, relator was regularly appointed as assistant foreman in the bureau.of highways, borough of Queens, at two dollars and fifty cents per. day; that he fully performed the duties of said position until November 6,1903, when he received a written notice signed by the' superintendent of highways o...
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This is an action in equity to adjudge that certain funds on deposit with the defendant bank in the name of and to the- credit of the defendant John C. Seager Company be. adjudged and determined to be the funds of plaintiff and to compel an accounting by the defendant company of the moneys received or collected by it in its capacity as agent for the plaintiff. From an examination of the papers in ...
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John W. Ferguson ha,d a contract for the construction of a building for the Hamilton Trust Company of Paterson, H. J. Plans for the same were made by one H. Gf. Stephens, architect. The firm of D. S. Hess & Co., these defendants, were sub-contractors under Ferguson. The plaintiff, doing business as the Empire Brass and Metal Works, entered into a contract with the defendants on July 31, 1902, for ...
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William' H. Webb, in his lifetime and in the year 1889, caused to' be established Webb’s Academy and Home for Shipbuilders, It was incorporated under ,the laws of Hew York, and since its creation has been supported- through the generosity of the founder. This corporation is the plaintiff. William E. Webb, defendant, is.the only surviving son of William H.-Webb, and H. Ada Webb is his' wife. On the...
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The question here presented arises under section 31 of the Forest, Fish and Game La,w ' (Laws of 1900, chap. 20 as amd. by Laws of 1904, chap:- 582). The conceded facts upon which this case was tried are that certain English pheasants were possessed hy the defendant on the dates alleged in the complaint for sale; that these English pheasants were bred and killed in the State of Hew Jersey and purc...
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The plaintiff sues as a stockholder of the Equitable National Bank, a corporation organized under the laws of the United States, on behalf of himself and all other stockholders of the corporation, who may elect to come into the action. The complaint alleges that the Equitable National Bank, á banking corporation organized under the National Banking Act, went into voluntary liquidation and that one...
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The action is in replevin, brought by the plaintiff as receiver in supplementary proceedings of the property of the Columbia Publishing Company. ' The plaintiff was appointed such receiver on the 30th day of June, 1902. The property replevied consisted of printing presses, type, motors, shafting and other articles incident to a printing plant, and on the 10th day of May, 1900, was in possession of...
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George W. Oatt died on the 8th of October, 1905, leaving a last will and testament bearing date January 19, 1897, and a codicil bearing date September 20, 1905. This latter affects merely the details of the disposition of certain property, and need not be considered here. The testator devised certain real estate in Iowa to his mother and sister; made provision for disposing of his engineering and ...
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The plaintiffs brought this action to recover damages for the refusal by the city to execute a contract claimed to have been duly awarded to them, said damages consisting of the profits they would have made if they had been allowed to perform.
By the provisions of section 692 of the revised charter of the city of New York (Laws of 1901, chap. 466) the care, management and control of Bellevue, Eord...
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The defendant was jointly indicted with one John. Murray for the crime of robbery in the first degree in that they did with force and arms in and upon one Daniel Donohue feloniously make an assault and the sum of five dollars and fifty cents from the person of said Donohue against his will and by violence feloniously did rob, steal, take and carry away, being then and there aided by an accomplice ...
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This action was brought for the sale of certain real estate alleged to have belonged to one Michael Darcy, deceased, and devised by him with other property, real and personal, to his wife, and after her death, to his children, and for the distribution of'the proceeds thereof. The complaint alleges “ that the record title to said property * * * was taken in the name of defendant, Frank A. Clark, bu...
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The defendant Biter is a non-resident of the State of New York and is now without the State, being in the city of Pittsburg, Pa., where lie resides. An issue of fact has been joined and the testimony of the defendant is material. Said defendant applied to the Special Term for an order for the issuance of a commission for the purpose of talcing his testimony to be used upon the trial upon written i...
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The courts of this State have time and time again expressed the view that a series of acts involving different conveyances and fraudulent judgments made to different parties at different times could properly be the subject of one bill in equity to reach the property for creditors, provided only it was alleged that the same was done pursuant to a single and forbidden scheme. It is alleged that the ...
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If the complaint sets out an action on contract then the counterclaim may be litigated in this action .under- subdivision 2. of section .501 of the Code. If, on the contrary, it is in tort the judgment must be reversed. The complaint alleges the title to the personal property in the plaintiff under a promise by defendant to deliver it upon demand. Demand was made and refused. It is clearly a case ...
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The contract in question meets all the requirements which the courts have laid down for the exercise of equitable power of enforcing specific performance. These requirements are summarized by Mr. Pomeroy in his work on Equity Jurisprudence (3d ed., § 1405), as follows: “ It (the contract) must be upon a valuable consideration. It must be reasonably certain as to its subject mattér, its stipulation...
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The plaintiff was the owner of an automobile valued at $16,000, on which the defendant issued a policy of insurance by which the plaintiff was insured for one year, from the 10th day of October, 1901, “ against all direct loss or damage by fire, except as hereinafter provided to an amount not exceeding Sixty-five hundred dollars,” providing that “ It is understood and agreed that this policy does ...
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The same question is presented in this case as in Preston v. Ætnia Ins. Co. (118 App. Div. 784,) decided herewith. There is a slight difference in the form of the exception, which in this case is as follows : “ It is a condition of this policy that this company is not liable for any loss or damage to an automobile, any of its parts or its content's insured under this policy caused by fire originat...
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This action .was to foreclose a mortgage. Before the defendants appeared the plaintiff obtained an ex parte order appointing a receiver of the mortgaged premises. On the 24th of December, 1906, an order was obtained requiring the plaintiff to show cause- why the order appointing the receiver should not be vacated and why Bachracli and Selnneidler should not be made parties defendant and a suppleme...
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■ The action is for goods sold and delivered, the complaint alleging that on the 7th of November, 1900, at Belfast, Ireland, the plaintiff sold and delivered to the defendant at her request certain goods, wares 'and merchandise set forth in a schedule annexed to the complaint at an agreed price, for which judgment was demanded. The answer in substance was a general denial. Upon the trial the court...
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The indictment under which defendant was tried and convicted of the crime of forgery in the first degree .contained a count for forging and another for uttering a deed purporting to convey as tbe act of one "William R. Hubert certain real property situated in tbe county of Hew York to complainant Benjamin W, Levitan. A certain tract of land of which tbe premises described in tbe deed were a part o...
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The plaintiff is a judgment- creditor of August Belmont Purdy, and brings this action in behalf of himself and all other creditors, if any there be, of said Purdy entitled to share in certain moneys and property assigned and transferred by Purdy to the defendant Lord, as trustee, by a deed of trust made, executed and - delivered on the 17th day of March, 1892, upon trust “ to pay any just debts wh...
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This is an action against the administratrix of a deceased member of a copartnership to recover on a contract obligation of the firm. Ross F. Robertson, who under the order appealed from is to be brought in, was a member of the firm at the time the obligation was incurred.. The defendant answered without raising the objection that there was a defect of parties defendant. The plaintiff there*811aft...
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The excellent opinion of. the learned justice who presided on the hearing of this motion at Special Term meets with our approval and renders further discussion of many points argued on the appeal unnecessary, excepting to emphasize views already briefly outlined by him.
This is an action at law. The complaint contains nine counts. In the first six paragraphs of the first count, which are repeated ...
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This is a suit in equity to require the defendant to account for expenditures and disbursements “ made, or caused or knowingly permitted to be made by him or his agents and servants ” from moneys received by him or which came into his custody and possession or under his control as trustee and president of the plaintiff, for the use and benefit of the plaintiff, not involved in certain actions at l...
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This is an action at law to recover various sums of money, aggregating $1,002,841.66, alleged to have been wrongfully abstracted from the plaintiff by the defendants, who are father and son, acting in concert and pursuant to a preconceived plan by which they fraudulently conspired and agreed at a time when the father was president of the company, to obtain, and did obtain, large sums of money from...
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The complaint contains two counts. Tlie first alleges a fraudulent and corrupt agreement and conspiracy between the appellant, who was president of the plaintiff, and the other defendants, who composed the firm of Charles H. Raymond & Co., the defendant Thebaud being son-in-law to said McCurdy, to enrich the firm and particularly Thebaud at the expense of the plaintiff, by which the firm was to re...
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The motion to make the complaint more definite and certain or, in the alternative, for a hill of particulars, were improperly joined, because one may only be made before and the other ordinarily only after pleading. Moreover, the motion having been made before .defendant answered and befóre it was rendered certain that the material allegations of the complaint would be controverted, and a bill of ...
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The plaintiff is engaged in the business of manufacturing dress goods under the name of the Barr Manufacturing Company at Philadelphia, and the defendants are commission merchants doing business in the city of ISTew York under the firm name of Schefer, Schramm & Vogel. The complaint sets forth two causes of action, one for a breach of contract in failing to turn over to the plaintiff orders for th...
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We have here presented the not infrequent case of a single sale of real property, with two brokers each claiming to have been the sole efficient cause of the sale, and, therefore, entitled to the commission. There is no pretense or suggestion that defendant has rendered himself liable to pay double commissions, and he, conceding his liability to one or the other of the claimants, but unable to det...
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The plaintiffs appeal from a judgment entered upon the report of a referee. The action is by a principal against his factor and involves the question as to the propriety of certain charges made by the factor.
The plaintiffs from time to time consigned goods to defendant, upon which the latter made advances and paid certain charges, being entitled, by agreement between the parties, to be reimbursed...
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The action is upon a fire policy in the standard form, with the addition of the necessary clauses to fit its character as a Lloyd’s policy. The defendant appeals from a judgment overruling a demurrer to the complaint. The Assurance Lloyds of America *846insured “ Cremo Incandescent Light Company, as now' or may be hereafter constituted.” It contained the usual clause that the policy should be void...
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In this action for injuries received in consequence of a collision between two of defendant’s cars, the appellant admits its liability for whatever injuries resulted from the collision, questioning only the amount of the recovery. Plaintiff was a married woman of about thirty-two years of age. Her strictly physical injuries were slight, but shortly after the accident she developed á condition of h...
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The plaintiffs appeal from an order vacating an order for the examination of the defendant William C. Greene as a witness before trial. The learned court below, recognizing the liberal rule now in force in this department respecting such examinations, still was of the opinion that in this case the affidavit of the plaintiff did not sufficiently state the essential facts to sustain an order for exa...
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This is an appeal from an order denying a motion upon notice to vacate an order for the examination of the officers of the Greene Consolidated Copper Company concerning “ the names and addresses of the officers and directors of the defendant Cobre Grande Copper Company,” a codefendant. The affidavit of Hettie L. Grant sets forth: First, that the persons to be examined were officers of the Greene C...
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.Plaintiff sues upon two causes' of action: First. .Upon a verbal contract said to have been made in 1879, whereby he agreed “to employ his efforts and use his best endeavors in a lawful manner to have the Congress of the United States pass an act making an appro-, priation for the defendant for damages which it had sustained by reason of the United States infringing- certain patents which were ow...
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This action was brought in the Municipal Court of the city of New York to recover a penalty of fifty dollars for the defendant’s refusal to furnish the plaintiff a transfer between different lines of its street surface railroads in the city of New York in alleged violation of section 104 of the Railroad Law (Laws of 1890, chap. 565, § 105, as renumbered and amd. by Laws of 1892, chap. 616.)
Upon t...
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The defendant was charged with maintaining a public nuisance under the provisions of sections 385 and 387 of the Penal Code. An examination of 'the record shows that there was a fair trial, and that the judgment of conviction rests'upon sufficient and competent evidence of the facts set forth in the information. The appellant insists that no crime.under section 385 of the Penal Code was stated in ...
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The question presented upon tliis appeal, which is from an order confirming the report of the commissioners of estimate and assessment, is as to the value of certain property taken in this proceeding; the commissioners have included in their award the value of certain machinery, which it is claimed were .fixtures and a part of the real property *866taken. The real property was owned by the General...
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The transfer tax appraiser decided that the legacy was snbj'ect to the transfer tax, and on his report the surrogate entered a formal order fixing the tax, the amount of which is not in dispute. The executor of the testatrix then apjiealed to the Surrogate’s Court, and the order was reversed upon the ground that the legacy was not taxable. The will contains two bequests of money to the McAuley Wat...
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Two questions are presented by the appeal from the order modifying and, as modified, confirming the report of the commissioners of estimate and assessment in this proceeding. The first question relates to so much of the report as affects the property of the Woodlawn Cemetery, a rural cemetery incorporated under chapter 133 of the Laws of 1847, and the subsequent acts amendatory thereof. It owns a ...
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The relator, Mary Helena Sharpsteen, a non-resident of this State, conveyed and transferred to the Tan Horden Trust Company, a domestic resident corporation, a large amount of real and personal estate in trust, to invest and reinvest and to.collect the rents, issues and profits, and after paying the expenses of administration, to “ pay over one-half of such net rents, issues and profits, income, i...
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" The complaint sets forth two causes of action for legal services which were embraced in separate actions. and consolidated into one. The first cause of action is- for services rendered in collecting the sum of $130,000, on three notes, each for $100,000. Plaintiff sought to bring this collection within the terms of a special agreement, made between him and the defendant.some teii years prior to ...
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By the 8th clause of the will the testatrix gave all of the residue of her real and personal estate to her executor, in trust, however, “the rents, profits and income thereof to be expended by him annually and to be paid over to religious, educational or eleemosynary institutions, as in his judgment shall seem advisable, not more than $500, however, to be paid to any one such institution in any on...
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. The plaintiffs - were copartners, conducting business as stockbrokers in the city of New York under the firm name of “A. Norden & Company,” and the defendant was a resident of "the city of Durham, N. C. The action is brought to recover an alleged balance of account claimed to be owing to the plaintiffs by the defendant, as the result of certain .stock transactions which .they claim to have condu...
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This is a. reference by agreement, pursuant to section- 2718’of the Code of Civil Procedure, of a disputed claim against an estate, which makes it an,action in the Supreme Court in which an issue of fact has been joined. The Legislature has expressly prescribed in section 893 of the Code of Civil Procedure that where an issue d • of fact has been joined in an action pending in the Supreme Court a ...
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FTo executor was appointed by the will of the decedent. Pending the application for the probate of' the will, the temporary *11administrator with the will annexed was appointed on the 20th day of December, 1905. The petitioner is the heir at law and next of kin of the decedent. He was.appointed administrator on the 17th day of August, 1906. The decedent left a large amount of personal estate, and ...
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The demurrer is upon the ground that the. complaint does not state facts sufficient to constitute a cause of action, - The complaint shows that the plaintiff leased, by an instrument in writing, the mez ' zanine floor of the “ Slater Buildings ” at N.o. 11 West Forty-second street, borough of Manhattan, New York, to the defendants for a term of years, commencing on the loth day of February, 1902, ...
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Defendant1 was convicted by the Court of Special Sessions for a violation of section 153 of the Public Health Law in that on the 3d of April, 1906, in the county of t New York, he did unlawfully, without having'legally received a medical degree and without having received a license according to law which constituted at the. time an authority to practice medicine under the laws of this State then i...
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. The complaint alleges that prior to the 13th of August, 1903, the defendant was employed- by the city of New York as an architect to design and draw plans for a public building to be known as the Bronx Borough Court House and to submit such plans to tlie municipal art commission of the city of New York for approval, ■and if said plans so submitted were approved by said art commission the contrac...
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On the 11th day-, of December, 1900, the defendant, a manu.faeturer of folding machines, under the name of- Brown Folding Machine Company, at Erie, Pehn., by a.written contract, appointed *37the plaintiff his sole agent for the sale of folding machines for the period of five years, beginning January 1, 1901. The plaintiff was at that time engaged in the business of selling machinery in the city of...
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The defendant was indicted and convicted of the crime of grand larceny in the first degree for obtaining by false pretenses the sum.-of ' $1,000 from Bosa Kaiser, alady’s maid and seamstress. The defendant first met the complaining witness near the flower stand at the Grand.. Central Depot on April 20,1906, through an advertisement inserted by him in the New York Herald signed' “Bachelor,” and whi...
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The, complaint alleges that the • value of professional services-rendered was $15,000; that the plaintiffs have been paid. $2,500. *51The first eleven folios of the complaint set forth that the defendant “ retained the plaintiffs with regard to légal difficulties involving the consideration, ' among others, of the following matters and items, * * ■ [which] after being unravelled and arrangéd, pres...
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On the 19th day of July, 1906, the defendant entered into an agreement, in writing, with the plaintiff’s assignors, by which lie *54.agreed to convey to them certain premises described in the contract. set forth in the submission, situate in the borough of the Bronx in the city and county of New York.' At the time and place fixed for closing title, plaintiff’s assignors refused .to take title, upo...
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Tlié action, is-brought by an employee to recover damages for personal injuries, alleged to have been sustained through the negligence of the defendant, his employer. The case was submitted to the jury upon the theory that the action was brought under the Employers’ Liability Act, so called (Laws of '1902^ chap. 600). We are of opinion that the judgment is erroneous for three reasons : (1) That, c...
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This action was brought to recover the sum of $5,825, with interest thereon from a specified date, .the value of' certain clothing and wearing apparel sold and delivered by the plaintiff to one Katherine Ballou, now Katherine Brown, with whom the decedent had lived in meretricious relations, and wlio. had at various times passed as his wife. The decedent died June 21, 1903, and the clothing and we...
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James II. Banker died on the 10th of February, 1885, leaving a last will and testament which gave to his wife, Ellen Josephine Banker, the bulk of his .estate. Mrs. Banker presented this will for probate to the surrogate of Westchester county. Mr. and Mrs. Banker had no children, but the defendanbSara H. Kent had lived with Mr. and Mrs. Banker from the 'time she was twelve years of age, and they h...
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The defendant'was indicted for assault in the second degree. The assault was committed upon one Antonio Cicillo, who testified that he had known the defendant for twenty-three years; that on the 20th day of Sovember, 1906, he met the defendant in'front of 105-J Cherry street, who' asked the witness if he had written a letter to his brother; that the complainant then said to the defendant, “ Why do...
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This action was brought by the receiver of the New York Building-Loan Banking Company to foreclose a mortgage given to /the company by a borrowing- member thereof. The complaint presents a state of facts similar to that disclosed and discussed in the case of Preston v. Lamano (46 Misc. Rep. 304), where Mr. Justice Gaynoe laid down the rule, governing the disposition of cases growing out of the fai...
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This case was tried before the same referee and at the same' time as that of Preston v. Albee, No. 2 (120 App. Div. 89), opinion filed herewith, and presented-the same character of case, the mortgage in suit being upon the house adjacent to the premises- under foreclosure in action Ho. 2. In action Ho. 2 the referee admitted- all the. documentary evidence and then dismissed the complaint. In the c...
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This action was tried before the same refere'e and at the same time as actions Nos. 2 and 3*, opinions wherein are herewith handed ¡down, and presented' the same general features, the mortgage foreclosed being upon a house, adjacent to the two covered by the former actions. - In this case the referee excluded all the documentary evidence and made similar findings to those considered in the two pri...
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On the 1st day of January,' 1904, the relator was removed from the position of superintendent of highways in the office of the president of the borough of Manhattan and George F. Scannell appointed tó said position." On the 21st day of January, 1904, the relator verified a petition for the purpose of obtaining the issuance of a peremptory writ of mandamus commanding the borough president to restor...
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The action is upon a policy of insurance issued by the defendant upon the life of Harry Wolarsky on the 5th day of January, 1905, *100•payable on. his death to this plaintiff. The premiums were- payable semi-annually on the fifth days of July and January following, and their non-payment rendered the policy void. The insured died August 21, 1905. The. defence1 is that the premium due the previous f...
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In 1904 one Maurice'Beckon gave a purchase-money second mortgage on premises on Madison avenue near One Hundred and Fourteenth street in the city of Mew York, to Leon Pizer and Jacob Pizer, for the sum of $15,250. By the terms of said mortgage $1,000 was to be paid on the 1st day of April, 1905, and a like sum annually thereafter until the 1st day of April, 1911, when the balance then remaining un...
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The plaintiff, who is the son of Kasryel H. Sarasohn, deceased, brings this action against his mother, his brother, the children of a deceased sister, and the. administrators of his father’s estate to compel the specific performance of a contract alleged to have been made between' himself and his father. The contract sued on was alleged to have been made on or about the 9th day of February, 1904, ...
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Plaintiff obtained and held as collateral to the indebtedness of one Caleb B. Knevals to it three certificates of shares purporting to have been issued by the defendant, which had been fraudulently diverted by Knevals while he was its vice-president and “ Comptroller or Chief Executive Officer.” This action was brought upon the theory that the certificates were void, on the ground that they consti...
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This actio,n was commenced in the Municipal Court, the complaint being verbal, and was to recover a penalty “ according to the provisions of sections 101 and 104 of the Railroad Law.” A bill of particulars was served by the plaintiff which stated that on the twenty-eighth day of March the plaintiff boarded a street car operated, . controlled and managed by the defendant at. the corner of Seventeen...
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The action is brought to recover $10,000 on a nóte alleged to-have been made by the copartnership of A. Moses Sons & Co., ■ indorsed by the defendants for value to the order of one Baron and before maturity.indorsed and transferred by the said Baron to the plaintiff,. The order for examination- provides that the plaintiff be examined as to the facts and. circumstances which are within his knowledg...
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On the 13th of October, 1906, the relator presented for recording to the register a mortgage bearing date the 12th day of October, 1906, made by Patrick J. Gilroy to the relator to secure the payment to it of $4,500 on demand. The said mortgage covered two leases held by said Gilroy'on certain premises in the county of New York made by Isabella Hart to Bernard Reilly, duly assigned by said Reilly ...
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The surplus here under consideration arose from the sale of- the ■ .premises Mos. 23 and 25 East Twenty-first street, in the city of Mew York, under foreclosure. The amount of this surplus is $10,852.73. *151The appellant, claimant, the Yellow Pine Company, claims payment of its lien first out of this fund, and under the law as announced by the highest courts of this State, we are of opinion that ...
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John'B. Byer, the appellant, was the executor appointed by the' will of Ellen. A. Wilkinson,, deceased. ■ The will likewise- named Gr. De Witt Clocke and Bolland.B; -Archer as testamentary trustees. The executor, in the discharge of his duties, collected moneys aggregating-about $29,000, and this sum he' reinvested in certain bonds and mortgages, believing that he had the right to make such rein-v...
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The plaintiff brings, this action to recover from the defendant, as executrix of Miles A: Stafford,-deceased,, the sum of $10,962.24, for ■services alleged, to have-been-rendered by the plaintiff to defendant’s testator during the period extending from the ■ 15th day of March, 1890,- to and including the 17th day of February, 1901, the day of■ the testator’s death. The defendant answering denied t...
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This action was’to recover for injuries caused by the death of'the plaintiff’s intestate. The jury found a verdict for the defendant, whereupon the plaintiff moved to set aside the verdict and grant a new trial, which motion'was granted, and from the order, entered thereon the defendant appeals. The order recites that the motion was granted on the ground that the verdict was contrary to the eviden...
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On tbe 9th of October, 1904, tbe plaintiff’s intestate was, in the employ of the defendant as an electrician’s helper. ' He attempted to cross its tracks at tbe downtown subway station at One Hundred and Thirty-seventh street and Broadway, and in doing so was struck by "a south-honhd car, receiving injuries from which he died a short time thereafter. This action was brought to recover the'damages ...
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This action is brought to recover about $800 royalties alleged to be due the plaintiffs under an agreement with one Raymond, by which he was given the exclusive.license to produce a certain play in the United States and Canada, and furnished for that purpose “ the manuscripts, scores, music, musical numbers, music parts and orchestrations ” of such play. According to the allegations of the complai...
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The action is brought to compel the removal of a nuisance, consisting of projections into the street of a building standing upon land owned by defendant at the time of bringing the action, with damages for its continuance on the ground that plaintiff suffers special damage to her adjoining premises thereby. All the material facts appearing in the case are stated in the opinions on the appeals to t...
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The plaintiff was an employee of the contractors for the iron work, and the defendant was the contractor for the brick work of a building in course of erection, the two classes of work proceeding together. *178The iron work had been erected to two stories in height and the defendant was filling in with brick. Some of the' iron columns and béams had been stored in the cellar and the plaintiff desir...
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The action is brought to foreclose a mechanic’s lien in place of which a bond had been given, and two separate causes of action are alleged in the complaint. ■ • On the trial, before any evidence was taken, the entire complaint was'dismissed on the ground'that neither cause of action stated facts sufficient,to constitute .a cause of action.,' In the first cause of action it is alleged that the def...
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' The action is for the conversion of certain moneys claimed to have belonged to plaintiff’s testatrix and which the defendant refused to deliver to- plaintiff on demand. ' Plaintiff as a witness in his own .behalf, testified that he had an interview with the. defendant shortly after the decease of the testatrix,- in which the defendant admitted to - him that she had in her hands certain moneys wh...
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This was an action at law. to recover the damages sustained by the plaintiff for a breach of a contract to convey real property. By this contract, a copy of which is annexed to the complaint, the. defendant, Frieda Hart, agreed to convey to the plaintiff certain property in the city of New York, specifically described, for the sum. of $45,000, payable $500 on the execution of the contract; “ $30,0...
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The: plaintiff’s intestate, while in the employ of the defendant received injuries which resulted in his death, and his administratrix *193commenced this action to recover the damages sustained thereby. The court submitted the case to the jury who found a verdict for the plaintiff for §10,000. The action is based upon the Employers’ Liability Act (Laws of 1902, chap. 600), which in section 1 provi...
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The executor under the last will and testament of Phoebe' Dé Saxe applied to and obtained from the Special Term'of this court an order directing all ¡versons interested in the. estate, either as legatees, creditors or otherwise, to appear before one of the justices of this court sitting iú Special Term, at a time and -place stated, to attend a final judicial settlement of his accounts as executor....
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This is an appeal by. the city from an order of the Special Term sustaining objections of the Woodlawn' Cemetery Association to assessments levied against its property, designated as benefit parcels 8 and 22, and strilring'the said assessments from tile report of the commissioners of .estimate and assessment and thereupon confirming the report as so corrected and amended.
This proceeding, which wa...
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On or about .the 20th day of October, 1902, the. plaintiff, as receiver supplementary to execution of the property of the Columbia Publishing Company, commenced, this action in replevin to.recover certain chattels, consisting of presses aiid other materials, of a printing establishment, claimed to be the property of the said Columbia Printing Company. ' •
The United States Fidelity and Guaranty Co...
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This is an apjreal from a determination of the Appellate Term affirming a judgment of the Municipal Court sustaining a demurrer to the complaint. The plaintiff, as trustee in bankruptcy of theestate of John T. Lee, brought an action in the Municipal Court of the city of Mew York against the defendant wherein-he alleged that within four months prior to the filing of the petition in bankruptcy, the ...
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This action was brought for the -breach of several contracts, by which the defendants sold to the plaintiffs certain four per cent *219bonds of the United Railroads of San Francisco. One contract, dated March 17, 1902, was for $100,000 par valúe of said bonds at eighty-nine per cent, with interest; the one dated the same day was for $100,000 par value at eighty-nine - per cent; one dated March 18,...
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■ Thomas Cuff, a-resident of the City .of Yew York, died, 'on July 10, 1899, intestate, leaving a -widow, the plaintiff, -and five children, all infants under fourteen years of age. At the -time of his death he had on deposit in various ■ savings banks standing in his own name about $6,500, and sixteen accounts in various savings banks for his .children — three- accounts for his daughter Annie, am...
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This action .was brought under section 2653a of the Code of Civil Procedure to test the validity of a will made on the 11th of September, 1902, by John B. Radley, who died on the loth. of. July,' 1904. The testator left him surviving a widow and two daughters, one of whom is the plaintiff, who has several children. By the terms of his will lie left all- of hisproperty in trust for the life of his ...
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This action is brought under chapter 69.0.of the Laws of 1899 for the purpose of avoiding a large number of contracts alleged to ' have been made by defendant with a view to establishing a mppcipoly *235in the ice business and to restrain the commission of acts in the future looking to the maintenance of such a monopoly. The defendant appeals from an order granting to plaintiff a discovery and ins...
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Page 1151
On the 28th of June, 1898, the plaintiff leased to the defendant certain realestate on which was located a. distillery, not then - quite completed, for a term of.three years from 'July 1, 1898, with privilege of renewal for four years. The defendant went into possession of the premises leased and paid the rent — which was payable' in monthly installments— to and including the month of Rovember, *2...
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The plaintiff had an account with the defendant. The complaint contains two counts. The first is to recover the sum of $843.09, paid by- the defendant to' an employee of the plaintiff On a check drawn by one Budolph Oelsner upon the National Shoe and Leather Bank, which plaintiff alleges was indorsed by him “for the purpose of depositing said check to the credit of ” his account, but which the def...
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This is-an action to recover damages for personal, injuries alleged to have been sustained by the. plaintiff through the negligence of the *251defendant. The defendant owned the premises Hos. 1041 and 1043 Third avenue, and the'five-story tenement houses erected thereon. On the 29th day of July, 1902, a sign was exposed in front.of the' premises, “ Flat to let, Inquire of Janitor.” ' The plaintiff...
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This is an action by a trustee in bankruptcy to recover the balance due on the bankrupt’s deposit account with the defendant, a national bank, at the time of his bankruptcy. No question of preference is here presented, for it is not claimed, nor was it shown, that the bankrupt deposited any money to the credit of his account-with the defendant within four months of his bankruptcy. On the 18th day ...
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' This is an action on a policy of insurance, issued by the defendant on the 16th day of February, 1903, on the life of Louise L. Buxton, by which tile defendant agreed to pay the plaintiff $500 on her death in accordance with the ■ provisions of the policy. *261Under the head “ Provisions ” ■ th.e policy contained a clause, as follows : “ Suicide.— If within one year from, the date hereof the Ins...
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.On January 13, 1892, Jabez A. Bostwick, then a resident of the city of New York, executed and delivered to the New York Life Insurance .and Trust Company a certain trust instrument;' whereby • he undertook to make provision for his daughter Nellie. Bostwick Morrell, then the wife of Francis L. Morrell. The subject of the trust was personal property. The trustee was directed to hold the property d...
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The questions presented by this appeal are in general similar' to' those presented and discussed in New York Life Insurance & Trust Co. v. Cary (120 App. Div. 264), herewith decided, and are'' controlled by the same considerations. The only difference, consists in the fact that by one of the trust deeds involved in the present case, Mir. Bostwick undertakes to extend the trust, and consequently su...
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This appeal presents only the question whether or not the appellants should have included in their accounts as executors-the unsold real' estate of William B. Nelson, their decedent. Incidentally of course this involves the' question whether or not the appellants, as executors, are entitled to commissions Upon such real estate. Section 2730 of the Code, of Civil Procedure' provides that commission...
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The defendant was indicted, tried and convicted of the crime of-grand larceny in the first degree, as a second offense. The offense upon which the charge was based was the attempt to steal a pin from the cravat of one Degen, the complaining witness. The evidence on the part of the prosecution was that Degen and one Stein boarded a very crowded Twenty-third street car at Eighth avenue on Saturday, ...
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In this action tbe plaintiff seeks to enforce private easements of light, air and .access over lands belonging to defendant immediately in front of and abutting upon lands belonging to plaintiff, and from a judgment dismissing his complaint upon the merits the plaintiff appeals. The plaintiff owns'. four - lots of land, in tbe city-" of New York, which taken together contain one hundred feet on On...
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The plaintiff acquired from defendant, by a full covenant and "warranty deed, a plot of land in the city of New York, and now seeks under the covenant for further assurance, either a further conveyance or a return of a part of the purchase price. The defendants derived their title through deeds from Charles C.. ■Nichols, as administrator with the will annexed .of Prosper. L. Gilbert, deceased,' an...
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The City of New York appeals from an order requiring the comptroller of the city of New York to pay to Daniel E. Seybel and others, as executors of Isaac M.' Dyckma.n, deceased, a sum of money representing the interest claimed to be due and unpaid to said executors upon 'an award made to them for the widening of *292West Two Hundred' and Thirtieth street. There is "no ■ dispute as to the facts, wh...
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The present appeal brings up for determination the question as to who should receive an award amounting to $13,544.71-for a piece of land designated in the report' of the commissioners as parcel No. 2, and which has been awarded to Peter Sheridan and others, heirs of *298Margaretta Sheridan, deceased. When the report came before the court for confirmation, the city of Mew York and the appellants O...
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The plaintiff appeals from an order denying his motion that Lydia A. Hodge and one Granville Whittlesey, an attorney of this court, be required to bring within the State of New York and within the jurisdiction of this court 42,000 shares of the capital stock of the Hevada-Htah Hines and Smelters Corporation upon which levy was. made in this action by the sheriff of the county of New York, and that...
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It seems to me that the rule that where the allegations of the answer are in effect a denial of a material allegation of the complaint it is not proper to require the defendants to give a bill of particulars, which would limit them as to their proof, applies to this case. The defendants should be at liberty to introduce any evi-. dence that they can to disprove the main facts upon which the plaint...
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This is a suit in equity to compel the defendant to account as manager of a “ pool or partnership or combination ” formed by plaintiffs and defendant for the purpose of buying and selling certain corporate stock. The plaintiffs' alleged .that the defendant caused the Federal Mining and Smelting Company to be incorporated under the laws of Delaware, to carry on the business of mining and smelting o...
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The question presented by this appeal, is the same as that presen ted by the appeal in. Bradley v. Sweeny, No. 1 (120 App. Div. 315), argued and decided herewith, and upon the authority of the opinion in .that case the order is reversed, with ten dollars costs and disbursements, and. motion granted, with ten dollars costs, but with ..leave to .plaintiff to serve an amended complaint, if so advised...
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The action is brought to foreclose-a mortgage upon the fee of the premises Ho. 39 Lispenard street and Mo. 332 Canal street, and upon a leasehold interest in premises Ho. 41 Lispenard street. The mortgage was not due. It fell due on the 5th day of July, 1906. The amount due and unpaid at that time was $80,000, together Avith interest from the 4th day of December,. 1905, at the rate of four and one...
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The defendant has been convicted of murder in the second degree for shooting his wife, Annie Ferone, in a room in which they lived together in a flat occupied by his parents at No. 206 East Forty-' fourth street, on Saturday the 5th day of March, 1904,. .at about midnight. It was clearly shown by' uncontroverted evidence that the wife of the defendant died from the effects of a wound received *324...
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- The defendant was jointly indicted with Hyman Hillowitz, Frank Smith and John Nolan on three counts, (1) for'burglary in the. third degree, for breaking into and entering the tailoring shop of Samuel Zwang with intent to steal, take and carry away property, and (2) for grand larceny in the second degree, for stealing from- the ' same premises three coats of the value of fifteen, dollars each, tw...
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The appellant was jointly indicted and tried with one Delaney, on a charge of grand larceny, in having taken from the person of one John Wenninger a finger ring, gold watch, hank check for twenty-four dollars and sixteen dollars in money. -The appellant and Delaney were friends, but they were strangbrs to the complainant who resided in Westchester and came to New York city about one o’clock Sunday...
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This is an action to recover on a quantum meruit for work, labor and services alleged to have been rendered by the plaintiff to the defendant between the 1st day of August, 1897, and the 15th day of April, 1903, inclusive, a period of 294 weeks. The answer puts' in issue the material allegations of the' complaint, and for-a first separate defense pleads payment, and for a second separate defense p...
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The judgment appealed from declares invalid an attempted appointment contained in the will of-Frances Jones. George Jones, the father of France? 'Jones, died,in 1886, his heirs being his three daughters, Bebecca Mason Jones, Frances Jones and Margaret' Smith, his grandson Daniel Butler .Fearing, his grandson Lewis Quentin Jones, and his great granddaughter Frances. Coster Jones (now Frances Coster...
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The plaintiff brought this action to recover $1,000, with interest, commissions alleged to have been earned in negotiating an exchange-•of real estate. Upon the trial of the action the jury found a verdict in favor of the plaintiff,, which, on motion of defendant, was set aside and the plaintiff’s complaint was-'dismissed, on the ground that the plaintiff acted in the premises in. violation of sec...
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This is an appeal from an order of- the Special Term denying a motion to punish the defendant for contempt in refusing to pay alimony.' The case shows the final decree of divorce was entered on the 14th- day of May, 1906, which required the defendant to pay the plaintiff ten dollars per week for the support and maintenance of -the infant child of the marriage. On the 3d of January, 1907,' a certif...
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The order appealed from, and which practically • disposed of the action, is made in an action for foreclosure of. a second mortgage. This mortgage contained a clause that the whole principal should become due after default in the payment of interest for five days after the same became due. It is conceded that interest became due on the 5th day of March, 1907; that it was not paid on that day, ■and...
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The remedy of specific performance of oral contracts resting as it does largely in the sound discretion" of the court (McPherson v. Schade, 149 N. Y. 16; Matter of Argus Co., 138 id. 572, 573; Dunckel v. Dunckel, 141 id. 434), is one which should not be permitted except in those cases in which the contract is fully established, and while the matter rests primarily with the trial court it is yet wi...
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The defendant was convicted in the Court of General Sessions of the crime of incest, and has been sentenced to State prison for a term of ten years. . It is hardly necessary to go into the disgusting details of the trial; the evidence fully supports the judgment, and if none of the substantial rights of the defendant were violated upon the trial the verdict of the jury ought not to be disturbed. D...
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The motion here under consideration was made after the service of the summons and complaint, and after the service of the answer, but before the time for the amendment of the complaint had expired. The facts set forth in the' answer of the defendant clearly show that Henry S. Kearney is a proper and necessary party defendant. It is there alleged that he was a copartner of the defendant’s husband, ...
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The defendant was charged in the indictment with the crime of forgery in the first degree. The crime was alleged to have been committed on the 21st day of November, .1903, the. indictment alleging that “ with intent to defraud,” the defendant “ feloniously did forge a certain deed and indenture of conveyance, purporting to be the act of one Mary J. Oliver, by which certain rights and interest in r...
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- It was clear error .to submit to the jury any question as to the permanency of the plaintiff’s injuries,, for there was. no evidence ' justifying such submission: The plaintiff’s, physician, who alone '.was-interrogated on the point, declined to' express an opinion, urging" that an answer “ would be speculative because it all depends'- on the kind of, treatment he received.” There was no other e...
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The referee, who has had the advantage of being present at the time the evidence was given and of seeing the witnesses and hearing tlieir testimony, has come to the conclusion that the evidence does not sustain the charges against the respondent.' We are not disposed to dissent from his conclusion, and, therefore, confirm the report. In announcing this conclusion, however, it is proper that we sho...
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The referee to whom it was referred to take the proof of the charges against this attorney has reported upon the facts and as to each of the .three several charges has reported that the said respondent was gúilty'of deceit, fraud, maljiractice and gross unprofessional conduct. A careful examination of,the record satisfies us that the finding and conclusions of the referee are fully sustained by th...
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We think that the referee was justified in his conclusion that the petitioner was guilty of unproféssional conduct. The mitigating circumstances .seem to relate solely to the respondent’s condition when he drew the affidavit upon which he obtained an order extending the time to 'serve the complaints in the three actions which he •had commenced as attorney for plaintiff, but there can be no questio...
Views: 1
The referee to whom it was referred to take proof of the charges against this attorney has reported upon the facts, and his findings of fact, which are certainly as favorable to the respondent as the evidence would warrant, are as follows: On or about the 16th day of February, 1895, one John J. Foley *379died intestate, seized of certain real property. He léft him surviving his widow, Elizabeth Fo...
Views: 0
Eo special facts or circumstances — other than the fact that the. defendant is an executor — are shown in the moving papers, to warrant the exercise of the discretion. of the court, and, therefore, under the well-established practice in this department, the plaintiff was not entitled to a preference excepting over non-preferred issues noticed for the same term. (Morse v. Press Publishing Co., 71 A...
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. The plaintiff, through its president, undertook to construct certain work for the purpose of installing an experimental gas works at the Flushing Gas Works, and the. principal question- involved is whether the defendant is-personally liable for the amount of the contract price of such work. The .'negotiations were had with Mr. Braker, the defendant, who was the treasurer of the International San...
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The complaint states a cause of action. It charges either directly or inferentially that the firm of Tobin & Tobin is. connected in business with and pursuing' the methods of one Anthony, who, according to the articles, has been notorious for years as a broker of bogus insurance; that he was once convicted for..selling “fake” policies and served a sentence in jail. The articles certainly have a te...
Views: 3
A reconsideration of the questions involved on this appeal-in the light of the criticism .of the opinion by'the learned district attorney fails to disclose that the court overlooked any material facts or any controlling authority, or that.any grounds .exist which would ¡justify the court in ordering a réargument. The reference in the opinion to the admission of the entries in the books bf the corp...
Views: 0
The action is to recover damages for the death of an employee claimed to have been caused through the negligence of the.employer.
Plaintiffs intestate was employed by the defendant in the construction of a tunnel under the East river.
The complaint alleges that the defendant negligently permitted smoke to enter the caisson in which plaintiff’s intestate was working, from the effects of which he wa...
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Plaintiff fhas found some, difficulty in framing its complaint to its own satisfaction and to that of the courts.- " Its original complaint, which sought to arnend the mortgage given by -the defendant Universal Talking Machine Company, was-demurred to and the demurrer sustained, with leave to amend upon payment of costs of the trial and appellate courts. (90 App. Div. 201.) , ;In pursuance of the ...
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The respondent was the owner of' a plot of" land-" designated as parcel 194 on the-damage map filed in'this proceeding, which was initiated by resolution of the board of public improvements, adopted -April 25, 1900. . The commissioners were appointed" October 21, 1901, and hearings were begun in .January, 1902. The improvement was the widening of Baychester avenue. The respondent was the owner of ...
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An interlocutory judgment directing that the defendants account, concerning the partnership business which was. adjudged to exist between them and the plaintiff was entered April 10, 1905, and a referee was appointed to take and state the account. - On the coming in of his report numerous exceptions were filed to his' findings, but they were overruled and judgment on them ordered, and from such ju...
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The action is for the killing of plaintiff’s intestate' through the carelessness of one of ¡defendants’ drivers in running him down upon a public street. - The testimony on behalf of the plaintiff, elicited from a boy eight years old .at the time of the accident, was that the witness and the deceased, who was about -nine years' of age, were playing with other boys in the roadway of-a. public stree...
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The defendant moved to set aside the service of an order of arrest and a summons and complaint made upon him in behalf of plaintiffs on the 26th day of March, 1907, at the city of New York, on the ground that he was á non-resident of the State, and on that day was in this State attending as. a party and witness in involuntary bankruptcy proceedings instituted against himself. Such" motion was deni...
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Proceedings were begun in the Surrogate’s Court in 1904 by Viola J. M. Karam to revoke letters testamentary theretofore issued to Emma Richardson and William T. Washburn, as executors of the last will and testament of Benjamin Richardson, deceased, and for their removal as trustees under the will of said deceased, which resulted in an order, dated the 9th day of July, 1906, denying such relief.
A ...
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•The samé questions arise in this appeal'as" do in the appeal from the order entered in the above proceeding on the 10th day of May, 1907, and the order should be reversed for the reasons stated, on the-reversal of- the latter order decided herewith. (120 App. Div. 406.) Present — Ingbaham, McLaughlin,- Clarke,- Houghton and Lambert, J J. Order reversed, with ten dollars costs and disbursements to...
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The plaintiff had been in the employ of the defendant for about a year and during that time had been engaged more or less in holding a hand drill, which work he described himself as competent to do. While engaged in drilling a hole as directed by the foreman, a longer drill than the one he was holding became necessary, and without any direction he went to the tool box provided by the defendant,-an...
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The plaintiff’s recovery is for injuries sustained in consequence of ¡falling over an obstruction in one of the public streets of the city of New Rochelle, on the night of January 13, 1906. The obstruction consisted of three flagstones piled on the sidewalk by an abutting owner in order to make a step to a slight embankment at the inner edge of the sidewalk. The obstruction had been allowed to rem...
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" The judgment recovered by the plaintiff is for damages resulting from injuries to certain goods delivered by him to the defendant for .transportation in the city of Kiew York,, and injured or destroyed in transit, defendant is -a domestic corporation engaged in the express business in the borough of Maphattan, and it received the *417goods in question from the plaintiff on the 28th day of ■ Sept...
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Plaintiff was a passenger on one of the defendant’s overcrowded cars on the evening of' May 30,1904, and was' thrown off by the conductor and in that manner received the. injuries of which he complains, 1 say.lie was thrown, off, on the. assumption that that was the. finding of the jury, since the learned trial court charged the jury , in effect that if' the conductor accidentally threw the plaint...
Views: 0
This action was brought to foreclose a mechanic’s lien tiled by the plaintiff upon certain real property in the borough of Brooklyn belonging to the defendant Matilda E. Wegenaar. The respondent 3". L. Wegenaar is joined with her as a defendant, and the complaint alleges that the labor and materials furnished and used, in the improvement of the real property in question were furnished under an agr...
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The defendants demur to the complaint upon the ground that it does not state facts sufficient to constitute a cause of action. Tlie court at Special Term has overruled the demurrer, and the question presented upon this appeal is whether there is an implied covenant or promise on the part of defendants that they should, through certain corporations in their control, afford an opportunity to litigat...
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There, is no primary trust herein as in Hascall v. King (162 N. Y. 134). The accumulations go on from the very start, for the trustees are directed, after paying debts and funeral expenses, “ to pay the interest and Five hundred dollars a year principal ór as much more as • *432my said trustees see fit on the bond and mortgage. on my property till 'it is paid in full; to pay to my sister Martha No...
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The plaintiffs in this action'were engaged in manufacturing beef cotton bags. They wrote a letter to the Cannon Manufacturing Company at Concord, N. C., asking for prices upon a line of cot*434ton goods by telegraph. The Cannon Manufacturing Company, in response to this request, delivered a message to the defendant to be forwarded to the plaintiffs in the city of New- York, which message was in wo...
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The defendant corporation was the owndr of practically all of the. common and preferred stock of the Rio 'Grande Coal Company, a corporation organized and conducted for the purpose of operating certain coal mines, iinder leases, in the State of Texas. The defendant, by a written contract, the basis of this 'action, gave the plaintiff an 'option to purchase or place tlie stock of the coal company w...
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■ The plaintiff in this action lost a portion "of one of his hands while operating a buzz saw, known as.a ripper.' There was.-evidence from which the jury .might.properly'have found:that the defendant was ■negligent in furnishing a saw which was notip a proper state of repair, or rather that, the machinery operating such saw was not in a fit condition by reason of- a lack of proper bolts to hold t...
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The plaintiff brings this action to foreclose a mechanic’s lien, and has made. Johnson and Slocum, the sureties upon a bond given for the purpose: of having the lien discharged, parties defendant. These defendants have demurred to the complaint upon the ground that it does not state facts sufficient to constitute a cause of action, and the learned' court at Special Term has overruled the demurrer....
Views: 1
The appeal is from an interlocutory judgment overruling the defendants’ demurrer that the complaint does not state facts sufficient to constitute a cause of action. The action is to compel the defendants to execute and to deliver a lease in accord with a covenant in a lease between the parties, providing for a lease of an additional part of the premises. I think that the plaintiffs do not plead th...
Views: 0
The action is by broker for commissions against the seller of real estate, tinder proper, objection and exception the court permitted the defendant to. ask the purchaser, “ What money did you have at.the time you purchased or agreed- to purchase %" and thereupon extended inquiry was made as to' the financial means of the purchaser. The contract was executed. There was no' allegation or proof that ...
Views: 0
The action is for negligence. The testimony- for the plaintiff is as follows: He stood at a street corner in the borough of Manhattan, and when the open car of the defendant reached his standpoint it was stopped for passengers both to alight and" to board the car; of *457the latter class there were four or five, of whom he was the last.As he attempted to get on, he took hold of the rail by his-han...
Views: 0
The parties do not agree-, whether the second installment was in fact tendered before the suit-was begun, and the record is not clear upon-this point. Yet I think that we must .regard the purpose of the.payment of the sum of'the -two installments -into court was to make good the plea of tender before -the .suit was brought, within the rule, df Platner v. Lehman (26 Hun, 374), and of Wilson v. Dora...
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In this action the beneficiary has recovered for a death upon an accident policy of insurance. The court submitted two questions to the jury; first, whether the death was accidental, and, second, whether crqdit had been extended for the payment of the premium. *460The jury answered -both questions in the affirmative. The court upon the motion of each party for the verdict, subsequently directed a ...
Views: 2
I think 'that the main, intent of the testator was to divide his estate equally among his children and the issue of any predeceased child per stirpes. The trusts' provided for during the minority of his child Sydney were plainly created because'of his minority and . were but incidental ■ to the division, which was only. postponed because the second trust required it. As Sydney attained’ his majori...
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In this action for a real estate broker’s'"- commissions the learned trial court at the close of the case directed a verdict for .the defendant, saying that it thought that the plaintiff had .failed to show that he had -produced a purchaser willing to take on the terms the defendant ■ had prescribed. The plaintiff excepted and thereupon *466under .exception was denied, a submission to the jury of ...
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This action is brought under chapter 132 of the Laws of 1903, entitled-.“An act to prevent the 1 unauthorized use of the name or picture of any perspn for the purposes of trade.” In June, 1904, the plaintiff sat in various poses for her photograph to Mr. Young. Sim accepted and paid for some of them. In November, 1904, Mr: Young made a contract with the • defendant whereby he agreed to take photog...
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.The contract that the scow should not be taken to Greenville was not proven. The evidence for the plaintiff left it a matter of uncer1 taint-y at best. And if such a contract could be eked out therefrom, to find it woul.d be against the weight of evidence. Assuming that the contract was proved, it was error to exclude evidence to show that the damages were caused or suffered in whole or in part b...
Views: 0
The plaintiff, then two years old, was sitting on the stoop of the defendant’s tenement house, when a gust of wind, apparently from the opening on the inside to the, roof, or from some open window, slammed the front door shut with such violence as'-to smash-the glass paneljn it, and throw the fragments-of glass out on the stoop and cut the plaintiff. The negligence is that the door had no hook to ...
Views: 0
The complaint contained four grounds of negligence, (1) that the subway lights were out, (2) that the front lights of the train were .out, (-3) that no warning of the' approach of the train was given by blowing the whistle or otherwise, and (4) that .the train was running at an excessive rate of speed and not under control. During the course of the trial the learned counsel for the plaintiff withd...
Views: 1
,The letters between the parties do not show,that the defendant employed the plaintiffs, or that they produced a purchaser. ' They^ could not require the defendant to come to New York to meet proposed purchasers'; it was for them to produce, a purchaser tb him. ■ The judgment should be reversed. Woodward, Jenks, Hooker and Rich, JJ., concurred. Judgment reversed, and new .trial granted,Acosts to a...
Views: 0
The plaintiff proved the collapse of the trestle and rested, relying on the maxim the thing speaks for itself. ISTo particular defect to cause the collapse of the trestle was apparent, and the plaintiff did not try to prove any. There was nothing but the bare fact that the trestle collapsed while in the ordinary use for which it ,, was constructed, and that it had been built only three years. The ...
Views: 0
The written agreements pleaded were never signed, by the defendants. They were sent to them by the other party, the plaintiffs predecessor, and retained by. them, and the learned trial judge allowed evidence for the plaintiff to the effect that they orally assented to their- -provisions. This was error, for the contract they contained was one which by its terms was to continue until the terminatio...
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This action is brought to procure the specific performance of an alleged agreement by which,the defendant bound herself to convey to the. plaintiff certain real property, the title to which is in the defendant.. The complaint alleges that the property in question was purchased by the,defendant for the plaintiff and with the plaintiff’s money, with the understanding that the defendant would deed th...
Views: 0
Page 1225
The relator seeks a peremptory mandamus directing the State ' "Pacing-. Commission to issue a license to conduct running races' and steeplechases and steeplechase meetings for the year 1907, and the ■ learned court at Special Term has -denied the application on the *485■ ground that under the provisions of chapter. 570 of the Laws of 1895,. commonly known as the “ Eacing Law,” the said State Eacin...
Views: 0
I think that there- was an eviction. The defendant leased an apartment in a flat house. His bathroom adjoined his bedroom. -There was but one plumbing system and’ but one hot wnter system' for the house. Roth were defective. Whenever .waste water was *491emptied from the bath tub in the apartment above, a small part of it was discharged into the.bath tub- of the tenant. Part of the waste water fro...
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The plaintiff agreed to purchase of the defendant premises- “ Being known as Seventy-one Pineapple Street, in the Borough of Brooklyn, New York City, same having a frontage of Twenty-seven feet six inches on Pineapple Street, with a depth of about One hundred and one feet;” and upon the execution of the. contract paid $100 in cash toward the purchase price. At the time set for the completion of th...
Views: 1
The defendant was the owner of premises from which a cellar door inclined to the sidewalk. The plaintiff, to avoid a mudhole in the sidewalk, stejoped up seven inches upon the cellar door, which gave way and she was injured. She has had' a verdict against the owner, who ap>peals from the judgment entered thereon. At the-time of the accident the entire premises were in possession of a tenant, under...
Views: 0
The membership of the deceased in the fraternal insurance association antedated the 19th day of November,1905, on which day he . " married the plaintiff. On January-10, 1906, the deceased member *497executed two declarations, the first, by which he designated his five children, the individual defendants herein, as his beneficiaries, and the second, by which he declared the proportions in which the...
Views: 0
The action is to forclose a mechanic’s lien and for a personal judgment against the appellants. The defendant Morgan Contracting Company entered into a contract with the Bealty Associates for the erection of certain buildings, and sublet .the work to the plaintiff. The plaintiff filed a lien for the amount claimed to be unpaid and due, and the defendant Metropolitan Surety Company was the surety u...
Views: 0
I do not think the first appeal should prevail, but that the judgment and order should be affirmed. Late in the evening of November 27, 1904, the plaintiff, a man. between sixty-five and seventy years old, was returning to his home, walking in the roadway. Hearing or-seeing teams, he suggested to his companion, the .woman with whom he. boarded, that they had better go upon the sidewalk. He did so ...
Views: 0
The appellant’s coexecutor applied by petition to the Surrogate’s Court for her removal (Code Civ. Pfoc. § 2685), and presented a voluminous affidavit which accompanied the petition as required by section 2686 of the Code. The surrogate, -upon this preliminary hearing, being satisfied of' the truth of the allegations of the petition, issued a citation according to the prayer.thereof. Upon the retu...
Views: 0
This is an action to recover $500 paid by the plaintiff to the defendant on a contract of sale of- a lot of land by the defendant to him. The contract day, i. 6., for the delivery of the conveyance, was August 9th at 5 o’clock p. m. at the office of the defendant’s attorney. The defendant was there, and having waited until nearly 6 o’clock left. The plaintiff came nearly an hour late, and there be...
Views: 1
The only questions presented requiring our consideration are, first, whether the provisions of section 4 of chapter 261 of the Laws of 1854, authorizing any magistrate in Dutchess county, in liis discretion, to commit a person convicted. before him of being a disorderly person to imprisonment at hard labor for any term not exceeding six months, were repealed by implication by the provisions ■ of t...
Views: 0
The plaintiff, who was an employee of the defendant, as an assistant to section foreman in the department of street cleaning, received an injury on December 27, 1903, while engaged in the performance of bis duties, which incapacitated him from rendering further services down' to the time of the trial of this action. On September .2, 1904, be applied for a leave of absence without pay until Decembe...
Views: 0
The plaintiff sued to recover a balance of eighty dollars claimed to be due on a painting contract, and twenty-six dollars and thirteen cents for extra work. The answer was a general denial and a counterclaim of one hundred and fifty dollars for breach of contract. On the trial the defendant claimed that the plaintiff had not completely performed his contract, and certain hearsay testimony was adm...
Views: 0
The only question presented by this appeal is whether the action was brought in time. The plaintiff has"recovered a judgment for a penalty of fifty dollars incurred by -the defendant for a violation of section 104 of the Railroad Law (Laws of 1890, chap. 565, § 105, as renumbered and amd. by Laws of 1892, chap. 676) requiring it to carry a passenger for a single fare over certain lines and to give...
Views: 2
This is an- action to recover money paid by mistake — the amount of four certain checks payable to bearer which were forgeries, pur- ■ porting to. be signed by L. F. Rand and indorsed by Peter R. Turn Suden. The checks with Turn Suden’s single and unqualified indorsement were presented and paid to him by the plaintiff. It was shown at the trial -that Turn Suden had been- in the habit of cashing ch...
Views: 1
This action was brought to recover a balance alleged to be due and unpaid upon a contract for laying an asbestos-granite floor and the bottoms of two window seats in defendant’s place of'business. The plaintiff is a manufacturer and layer of what is known as “ Asbestos-Granite ” floors, which are composed of calcined magnesite mixed with chloride of magnesia by a secret process, forming a cement w...
Views: 1
The plaintiff’s hand was injured, and in this action for damages - therefor he has recovered a judgment upon the verdict of a jury. The defendant was a sub-contractor engaged in excavating, in connection with the construction of the subway, at the northwest corner of Forty-second street and Vanderbilt avenue, in the borough of Manhattan. The defendant was raising dirt out of the. excavation a few ...
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The plaintiff is the owner of premises situate on the southeast corner of Ralph and Atlantic avenues, borough of Brooklyn, and seeks to restrain the' maintenance by the defendant of its viaduct structure on Atlantic avenue in front of her premises, and the running of its trains thereon. The case turns on the' defendant’s right to use the so-called thirty-foot strip in the center of Atlantic avenue...
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We are asked to determine whether the plaintiff individually and as executor has power to convey a good marketable title to defendant of the premises described in the submission under the power of'sale contained in the-will of Elizabeth D. H. Odell, his wife. By the terms of her will' she gave, devised and bequeathed all of her property, both real and personal, unto her husband (the plaintiff), to...
Views: 0
The plaintiff’s intestate had been employed in defendant’s sugar refinery eighteen years. His usual place of employment was on the second floor of one of the buildings,- and one of his duties was to walk through the mixer room on the first floor,'a distance of about eighty feet, twice of three times during the night,, to a place where he had to give some signal hy blowing a whistle. In going to th...
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On December 21, 1905, the plaintiff held a position in .the classi- . fied bivil service,, subject to competitive- examination, as draftsman at a salary of $1,800 per annum, in the office of the-president of the borough of . Queens; on that day the commissioner of water supply, gas a.nd electricity requested- the civil service commission in writing to issue a certificate pursuant to rule 14 of the...
Views: 1
Page 1245
This action is on a promissory note made by the defendant, the Sing Sing Gras Manufacturing Company,, and indorsed by the defends ants Hoxon, Maurice, the defendant Larkin’s intestate, the testator of the defendants Young, and one Allen. Said Hoxon was the plaintiff’s cashier and the treasurer of the maker of said note. The maker of -the note executed and delivered to said indorsers a mortgage to ...
Views: 0
This is the case of a teacher receiving salary for a given position and suing to recover the difference between such salary and that provided for a higher grade or position. The school in which she was employed had less than twelve and more than five classes. The defendant’s by-laws provided that women principals, heads of departments and assistants to principals- of such schools after three years...
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I think it reasonably clear that the moneys which are the subject of this controversy were paid to the town by the city of New York as damages for the increased obligation imposed upon the town for maintenance of the highways substituted for those submerged, and not for the purpose of creating a trust fund to provide for said maintenance, as contended by the appellant. The town and the city recogn...
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. The relator presented two -accounts' to the town board of the. town of Clarkstown, county of Rockland, for fees claimed to have been earned by him, as a constable of said town in certain criminal proceedings in which the charge was. either- for public intoxication or disorderly conduct. • The -accounts- Were audited by .said board, certain items being allowed and others disallowed. Thereafter th...
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This is a dispute over' surplus moneys, arising from a mortgage ' foreclosure between the appellant, Susan S. Wilson, holder-of the . legal title, and the respondent, Charles Rosenberg, who claims to ' have been the .equitable owner of tlie property by virtue of a contract of purchase and sale made • between him and said appellant. The facts are undisputed. The referee found that the appellant, . ...
Views: 0
In June, 1894, the' appellant was appointed principal of Public School Ho. 2, Woodhaven, county of Queens, and continuously held that position until August, 1898, when she was reassigned to the position of teacher in another school. At the time of such reassignment her salary as principal was $750, and the salary of the position to which she was reassigned as teacher, was $1,000. At that time ther...
Views: 0
This is an action to -recover broker’s commissions. At the close of the-plaintiff’s case the defendant moved to dismiss the. complaint on the ground -that the plaintiff had failed to prove a'cause of action.'- The justice reserved -decision, whereupon the defendant rested without offering any evidence. Subsequently the motion to dismiss was granted, and judgment of nonsuit rendered.. ' The plainti...
Views: 0
The verdict is without any support. The defendant introduced no evidence. The plaintiff worked in the defendant’s factory. His duty was' to replace the bands on the spinning machines as they wore out every three or four days. It -waS not belting, or anything like that, but simple woven bands in the machine. It was simple ' work. . His evidence is that as he was fixing the bands on a machine it was...
Views: 0
■ To entitle the relator to this writ it must appear that application, was made in due time to the-proper officers to correct such assess- ■ ment. (Laws of 1896,. chap. 9Ó8, .§■ 250.) UpQn such- application the assessors may require the person assessed, or his agent or repre-' sentative,- to appear before them and be examined concerning his complaint, and to produce any papers relating to such ass...
Views: 0
The relator, The Yeteran Yolunteer Firemen of - the City of Brooklyn, Western District, was incorporated in the year 1887, the *566declared, purpose of its incorporation being to renew and perpetuate the social intercourse and friendship that existed in the late Volunteer Fire Department of the City of Brooklyn, Western District, and to provide a headquarters for the - transaction- of its-Business...
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. This action was brought to recover the penalty of'$§0 prescribed by section 104 of the Railroad Law for a refusal by .a street surface railroad company to deliver to a> passenger a transfer for a. continuous trip over its line and any connecting branch Operated -or controlled. by it: The plaintiff testified that at -the time- of paying his fare and afterwards he asked the conductor to give' h...
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• Upon the uncontroverted facts/it would seem that the relator would be entitled to tlie relief -which she seeks in this proceeding but for the fact that on the 1st day' of January, 1898, when the Greater New York charter went into effect, she was not a teacher in any of the civil divisions consolidated and merged into the greater city. Relator was first. licensed to teach July 1, 1871, by the cit...
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We thinlc that this - judgment should be affirmed for the reasons stated by the learned justice who presided at tlie Special Term. We may add as authorities which sustain his conclusion Gidney v. Blake (11 Johns. 54); Dorland v. Patterson (23 Wend. 422, 424.) The interlocutory judgment must be affirmed, with leave to the defendant to plead over upon payment of costs. Woodward, Hooker, G-aynor and ...
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The action is for an injunction to restrain the construction of a sewer through property claimed by the plaintiff, consisting of a dock built into the Hudson river at the foot óf Main street in the village of Cold Spring. The plaintiff’s title is not attacked, but the defendants claim that the locus in quo is a public street.
The plaintiff traces her title to a grant of lands under water made by t...
Views: 0
Where the provisions of a will for the widow are inconsistent with her taking dower, although it be not made in terms in lieu of dower, as is the case here, she is nevertheless put to her election whether she will take dower instead of such provision, for she cannot in such case have both, and cannot in any case be" deprived of her dower without her consent. The widow here claims that there is no ...
Views: 1
The defendant, supervisor of the town of Hempstead, county of LTassau, charged one cent a line for extending 115,456 lines on the town assessment rolls of 1903 and 1904, which as thus completed became the town tax rolls. By section 23 of the County Law each supervisor is authorized to charge “ one cent for each line of the tax-roll actually extended by him.” The plaintiff claims that only 45,442 l...
Views: 3
The learned judge below correctly decided this case. It is required by section .67 of the Tenement House Act (Laws of .1901, chap. 334) that “ every room ” in a tenement house “ shall have at least one window opening directly upon the street or upon a yard or court ”; and by the next section that the “ window area in each room ” shall be at least one tenth of the floor area of the room. And then s...
Views: 0
The plaintiff called no witness, and the' nonsuit was on his own evidence., He testified that he was trying to., sell his mother’s land, but the proposed buyer would not make a contract to purchase it because it was not large enough' for the purpose he wanted it for. The plaintiff -then 'suggested that he might also, get for him a part o.f the land adjoining, which was owned by the defendant, and ...
Views: 1
In April, 1901,1. Henry Danziger, one of .the copartnership firm of Danziger' Brothers, carrying on the wholesale clothing business in the city of Syracuse, commenced an "action in. the Supreme Court against the two other copartners for a dissolution of the copartner*605ship. Henry' Danziger, Jr., the defendant herein, appeared for the plaintiff in that action. Leo Frank was .appointed temporary r...
Views: 1
In February, 1881, Morris 0. Mulkin, respondents’ testator, purchased an undivided one-fourth of a twenty-acre tract of land in Bolivar, Allegany county. ' In April, 1882, the plaintiff acquired by purchase all the oil and’gas in an undivided three-fourths of the same premises.
Oil had been discovered on the adjacent lands and many wells were in process of drilling, and sufficiently near to the tw...
Views: 0
The claims in controversy consist of two. items: $250 for services of the relator a.s health" officer of the town for one year, from November 12,1904, to-November 12,1905, and $20.40 for expenses of the relator in attending the annual sanitary conference,of health officers at Albany, on December 15 and 16, 1904. The board of town auditors, the respondents, rejected both claims. We think the claims...
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The complaint was dismissed upon the trial upon the ground that all right accruing under the chattel mortgage was merged in the bill of sale, and for any fraud exercised in procuring the taking' of the chattel mortgage, the defendant cannot be held liable as in the bill of -sale was conveyed simply such right, title and interest as the defendant had in the property. We are not prepared, entirely, ...
Views: 0
This action, as it Was finally submitted to the jury, was an action for criminal conversation. The trial judge instructed the jury as to the rule of damages in the following words: “ That marriage relation is at the very basis of our good government, and the law' properly says that if a man does violate the sacredness of the mar.riage relation that he may be held in damage for it. And those'' dama...
Views: 0
The order recites the preliminary objection made to the hearing of the motion that the papers are. not sufficient under the rules of. this department to authorize the hearing of the motion upon ’ the ' merits. The motion was thereupon ■ denied, with leave to renew. It is apparent, therefore, that the motion was denied purely upon the ground that the defendant’s affidavit's were not sufficient to c...
Views: 0
The contract' upon which this action is brought was executed upon the 15th day of July, 1902, and was to continue in force for two years. TJnder that contract the plaintiff, the party of the first part, was to carry at the store of the defendant, the party of the second part, a full line of steel-center pulleys and also a. complete *626stock of steel-rim pulleys, The party of the second part agree...
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The correspondence between the parties in this action is so volu-t minous that it is impossible-tq set it forth in-an opinion. Whati. *631ever contract was made was probably entire and a failure to deliver part would be a failure to perform the contract if it had not _been waived by the defendants. In their correspondence, however, in reference to the matter, defendants made no objection on the gr...
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The plaintiff’s claim showed that while' his intestate, was .lawfully present in - a building upon the grounds of the 'Willard State Hospital, owned by' the ’State of New York; a railroad car belonging to and in use by the State, rolled down the track, running into the building, and killing the intestate; that the railroad car, was negligently left standing upon the. tracks, upon a steep grade, no...
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The corhplaint alleged an agreement by which if the plaintiff: would let the intestate have her pension money from time to., time to be used in his business so long as. he lived, such advances would be repaid at his death out of his estate; that she fully carried' out the agreement and loaned- and paid- over to him all of. the pension money received by her, amounting to'$4,000. The evidence showed...
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The plaintiffs seek to dissolve a copartnership and for an accounting. October 31, 1898, a partnership agreement was made between the parties, to begin November first of that year and continue for three years, in the business of cutting, harvesting and selling ice.. Among other things, it was agreed that' the icehouses * , * *• shall be insured and kept in good order and repair, and after the . pa...
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All'the' material facts in this case áre found in Turck v. New York Central & Hudson River R. R. Co. (108 App. Div. 142). There this court reversed a judgment in favor of the administrator of Turck, Turck and.the plaintiff’s intestate were ki'lléd by the defendant’s tráin ih collision with an automobile in which they were' riding. '.Turck was managing the machine, familiar with its operations and ...
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This action is' brought to recover upon four promissory notes,, each set up in a separate count. The answer denies each count separately, and, among other things, alleges as to each note that prior to the commencement of the action the defendant paid, satisfied and discharged the same. The plaintiff, upon affidavit that he has no knowledge of any payment except those expressly admitted in the comp...
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Plaintiff was a passenger on, one of defendant’s trains. The day being warm the window opposite which she wás seated was open. As the train started on leaving one of the stations along the line of the journey the window fell and injured her hand which was resting on the sill. The window was open when she entered the car and according to her testimony was not manipulated by her. From the testimony ...
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“ The owner of land is not bound by. the common law to -fence, his land or in- any way to mark the boundaries of his possession. ■ (Wells v. Howell, 19 J. R. 385;* Stafford v. Ingersol, 3 Hill, 38.) *647He may leave it open and a person entering thereon without permission is a trespasser, and it is no excuse that the entry was made innocently and by mistake, and the rule is the .same in respect to...
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The reason .for the reduction in the relator’s assessment was inequality in that it was “ made at a. higher proportionate valuation than the assessment of other property on the same roll by the same officers.”' (Tax Law, § 250.).- The petition alleges such inequality as the basis of this proceeding and specifies numerous instances in which such inequality exists and the extent, thereof. -
The appe...
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. The bond in question is the ordinary bond given by the holders ■of liquor tax certificates Under section 18-of the Liquor Tax Law. (Laws of 1896, chap., 112, as amd. by Laws of 1903, chap..486). That section provides for. “ a bond to the People of the State of New York in the penal sum of the amount plus oue-lialf of the-tax for one year upon the kind of traffic in liquor to. be carried on by *6...
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In Dumar v. Witherbee, Sherman & Company (88 App. Div. 181) this court, speaking through Mr. Justice Chase, said: “It is better that the distinction between an order requiring a pleading to be made definite and certain and an order directing a bill of particulars should not be confused. When all that a party to an action really wants is a more'particular statement, of his opponent’s claim for the ...
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This is an action to recover the penalty of a bond given pursuant to section 18 of the Liquor Tax Law.* The complaint alleges that the defendant Belanger violated the provisions of the bond by permitting various persons to gamble, by operating a slot machine in the place where the traffic in liquors was carried on.
The evidénce of the plaintiff consisted of the testimony of five special agents of ...
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This action was commenced by the plaintiff, a policyholder of the Mutual Life Insurance Company, on behalf of himself and all *666other persons similarly situated, to recover certain sums alleged to have been wasted by the negligence of the defendants, who were directors of the company. The summons was served January 3, 1906. On January eighteenth the defendant, Robert H. McCurdy, appeared by atto...
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The question presented by this appeal is the liability of the defendants Payne, Hodgkins and Braman, as sureties upon the *668bond given by the defendant Whitney, as general guardian of the plaintiff.
The condition of the bond was that the said Whitney should faithfully discharge the duty of a guardian and render a true and just account of all money and property received by her.
The complaint, in ...
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The defendant had done everything that the law required of him to perfect his appeal to the County Court from the judgment of the Justice’s Court, and the justice had failed to make and file his return within the time required by law. 'Nothing appears to show that the defendant was at fault in not compelling a.return to be filed in time to get the case on that calendar. An action is deemed • an ac...
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The correction or modification was apparently made because the respondent believed that the words “ on account thereof” contained in the decree as entered, limited the surrogate, upon the supplemental account directed to be filed by the executor, to allowing such expenses only as related to the interest, income or accretion of the property and prohibited the allowance of any other expenses in the ...
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This is a motion to strike out the answer as frivolous. The action is brought to foreclose a mortgage made and executed by Archibald I. McKeely to the plaintiffs. • Julia A. McKeely, the wife of Archibald I. McKeely, did not. sign the mortgage. The motion of - the plaintiffs is for judgment upon the pleadings, upon the ground that the answer does not deny any of the allegations of the complaint, n...
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This .action is brought to foreclose a mortgage on certain real estate in the county' of St. Lawrence, given by the defendant Eastern Iron Company to sfecure the payment of 250 bonds of the par value of $1,000 each'and interest thereon. The defendants McLear, Orvis and Lee interposed answers which raise an issue as to the title or interest of the plaintiff in a portion of the land.
There is little...
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The property which has occasioned this controversy is located upon Chrystie street in the city of New York. - It had a frontage of sixty-eight feet nine inches on .Chrystie street upon which there had been erected a building or buildings, and of this sixty-eight feet nine inches, the northerly fifty-two feet were taken "in this proceeding, leaving the owner sixteen feet nine inches. The owner of t...
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This action wa,s to compel the defendant to account for his acts and proceedings in connection with certain bonds of the D.: G-. Yuengling Brewing Company which had been delivered to him by the plaintiff. The complaint alleges that in the year 1895 the defendant was the owner .of a large majority of the bonds included in the series to which the bonds owned by the plaintiff belonged'; that these bo...
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.The appellant is the president-of the borough of Manhattan in -the- city of. Mew York. . By reason of certain charges which wére ' published concerning the management-of his office,- lie requested the mayor of the city of Mew York to direct the commissioners, of .accounts to make an investigation of liis department.' The mayor did as requested, and the -examination was .entered upon and continued...
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■ Olney, Scannell and Walker were called as witnesses by the commissioners of accounts of the city of New York, who were investigating the office of the president of the borough of Manhattan. They were subordinates, in that;office, Scannell being the superintendent of highways;. Walker, superintendent of supplies, and Olney the chief examiner of highways. After each had been sworn, .certain questi...
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The respondent on this appeal at one time acted and rendered services for the plaintiff in the above action. She, for some reason, *730not being satisfied, made a motion to substitute another attorney, which was granted and a reference ordered to determine the amount of the former attorney’s claim, the same1 being in dispute. The referee to whom the matter w;as referred reported in favor of the at...
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Plaintiff recovered a judgment - against the defendants for. $34,372.63.. The defendants desired to move for a new trial upon the ground of newly-discovered evidence. An order was entered Hay 24, 1907, directing the taking of the deposition of Bainbridge Colby, an attorney, for use on said motion, under the provisions of section 885 of the.Code of Civil Procedure. The order provided for the produc...
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. -This appeal is from an order-setting aside the service .'of a summons and complaint upon the ground, as appears from the opinion of the learned justice sitting at Special Term, that the contract sought to be. enforced was entered into bet ween, two foreign corporations outside of the State of New York, .and for that reason the Supreme Court of the State of New York has no jurisdiction over the ...
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On. the 7th of June, 1897, Joseph Naylor died, leaving a will by which he devised certain real estate in trust to trustees therein; named for the benefit of his wife during her life, and directed them, upon her death, to hold such real estate upon seven separate trusts for the benefit of his seven nephews and nieces respectively, paying to each the net income of one equal seventh part during his o...
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This proceeding was instituted to acquire by condemnation a strip of land about 11 feet wide and 523 feet long, situate in the borough of the Bronx, New York city, alongside of two lines of railroads leased to and operated by the plaintiff. The land in question was owned by the defendants, and the commissioners appointed to ascertain and appraise the compensation to be made to them reported that t...
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The plaintiff is a foreign corporation organized and existing under the laws of the State of Wisconsin, having its principal office and place, of business in the city of Milwaukee.
The defendant is a citizen of this State. ■ The action‘is brought to recover an amount alleged to be. due for the purchase price of certain stock and.’also the amount of certain overdrafts allowed defendant by plaintiff...
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This case comes before the court■ upon an agreed statement of facts under'section 1279 of the Code' of Civil Procedure.
The plaintiffs filed a notice of mechanic’s lien against certain *749land in the'' city of New York owned hy one Bonginsky. Subsequently an action was brought' to foreclose the lien, which resulted in a judgment, in pursuance of which a sale was had, and the premises were bid off...
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The relator was appointed to the position of tenement house inspector on- the 2d of June, 1902, at-a; salary, of $1,200 per, year. Prior to the 27th of July, 1906,. charges were preferred against him for misconduct a.nd incompeténcy, with specifications to the effect that .lie had violated certain rules and regulations of the tenement house department of the city of New York by being absent withou...
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The right to examine books of a corporation is purely .a personal right depending upon the-ownership of Capital: stock of the corporation. A stockholder as the owner of stock becomes a member of the corporation and it is based upon this fact of ownership in the corporation that his right is recognized at common law tb examine the books of the corporation, and be. informed as to its business. A mer...
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This is an action by the city to restrain the continuance of a nuisance caused by an' encroachment upon the sidewalk of Forty-second street, at the northwest corner of Forty-second street and Sixth avenue in the borough of Manhattan, ¡N ew York, and for a mandatory injunction requiring the abatement thereof, and that the side-walk be restored by the defendants, and in the event of their failure so...
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The action is to recover damages for failure to deliver 1,000 bags of rice sold by description and sample. On May 13,1903, the defendant solicited the plaintiff to buy, and on that day he purchased 250 bags of ^Bassein rice like sample A A” to arrive at .0255 per pound, and having sold this invoice at an advance, three days later he purchased another lot of 250. bags at the same price, which lot h...
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The defendant was indicted and convicted of the Crime of manslaughter in the first degree in having caused the. death 'of one Pauline Schaefer through .performing a criminal operation upon her. There is no direct evidence that the defendant performed or aided in the criminal operation. For that fact the' People were compelled to rely upon the-alleged dying declarations of the victim. The extrinsic...
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.This is an appeal from a judgment of the Special Term dismissing the complaint in an equity action brought to determine the ownership of an award, made by the board of assessors of the city of New York for consequential damages sustained- by a plot of five lots situated on the south side of West Ninety-sixth street,-'between ¡Riverside drive and West'End avenue, in. the borough of Manhattan, by r...
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This was an action to set aside a deed to a piece of property situated on Staten Island, executed by the plaintiff to the defendant Douglas. It appears that this piece' of property was owned-.in 1902 by one Mary E. Hardy, to whom Joseph H. White, the plaintiff, loaned about $400. Subsequent thereto Mrs. Hardy and her husband gave a deed of said property to White under an understanding that' it was...
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The Medical Society of the County of New York complained to the City Magistrates! Court of the Fifth District of the First Division of the City of New York, upon information contained in the affidavits of Frances Benzecry, Katie Farenga and Mabel Kenny.that the defendant had violated section 318 of the Penal Code. That, section is as follows : “ A person who sells, lends, gives away, or in any man...
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■ This is an appeal from an order .of the Special Term made upon the return of an order.to show cause why John "Weir and Thomas M."Smith Should not be required to disclose the repository in which 42,000 shares of the capital stock of the Hevada-Utah Mines and Smelters Corporation is deposited, and why they should not be 1 required tó bring the same back into the State .of New York and surrender th...
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This is an appeal by plaintiff from an order denying its motion for an injunction pendente lite. The defendant entered into an agreement with the plaintiff by which he was employed as a driver' and collector at the rate of thirteen dollars per week. The. plaintiff agreed to give him one week’s notice in case his services were no longer required, and defendant agreed to perform his services honestl...
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This is.an appeal from an order of the Special Térrn, upon á petition and notice of motion to compel the appellant George E. Altstadt to deliver to the petitioners two savings bank books showing accounts in the name of “Diedrick Woltman in trust for Herman "Woltman.” The petition alleges that the petitioners were by order made and entered .on the 6th: day of May, 1907, appointed the committee of t...
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This is án appeal from an order of the Special Term denying petitioner’s motion for the issuance of a peremptory writ of mandamus directing the. respondent, as corporation counsel of the city' of New York* to institute proceedings under, the provisions' of chapter 1006 of the ¡Laws óf 1895 to ascer tain the damages resulting to the premises'of the petitioner by the closing of a portion of Depew pl...
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This is an appeal from an order of the Special Term granting a peremptory writ of mandamus to compel the reinstatement of the ■ relator to the position of tenement house inspector from which he lwas removed on February- 26, 1906. The relator was not a veteran or "an exempt fireman and, therefore, charges having been preferred, against him, his sole right under the provisions of section 1.543 of th...
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■ The 'facts as they.are alleged in the complaint.and found by the' court, the complaint being ordered amended to conform with the proofs, are in substance as follows-: The mother of the' plaintiffs, Elizabeth Heil, died leaving a last will and testament. Under an agreement construing the same each of the plaintiffs was the owner *811iu remainder of a one-fourth part of the premises involved in th...
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There does not appear to have been any serious question that.the facts justified the ex parte order for the examination of the defendants, 'respondents; the order vacating such order was made upon the single ground, stated in the opinion of the court at Special *814Term, that “ this action is now pending before a refel’eé, mid, therefore, the order herein for the examination of the defendant Grree...
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We-have had an opportunity of examining the opinion of the Appellate Division of the second department in an application similar to the present, upon which was presented the question of the constitutionality of chapter 538 of the Laws of 19Ó7, upon the determination of which this application depends. We are unanimously of the opinion that this act violates several provisions of the Constitution, a...
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The agreement as, alleged in the complaint was that two steamboats, the j>roperty of the defendant, should be placed in plaintiff’s hands to sell for defendant, and that-if the plaintiff was- successful in finding a purchaser willing-and able to buy the said steamboats the-plaintiff was to look for his commission from said purchaser and not from the defendant; “ provided, however, that if the d...
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This is an- action by a vendee for the specific performance of a contract-for the sale of premises No. 140 East Eightieth street,, and in the event that defendant is unable to perform, for the recovery of the down payment, interest and damages. The • contract was in writing and bears' date the 6th . day of -November, 1905. The “ Estate of Hannah Asiel ” is designated as party of the first part and...
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This was an action by a customer against a firm of stockbrokers to recover damages for an unauthorized sale of a contract for.the delivery of cotton at a future date. Pending the appeal the original plaintiff died, and the action has been revived and continued in the name of this ancillary executor. . . On the. 9th day of December, 1903, the defendants purchased for the plaintiff, on the Mew York ...
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This proceeding is brought under section 906 of the Greater New York charter* to review the determination of tire respondents in assessing for taxation for the year 1901 certain shares of stock owned by relator in ten national banks and in one State bank. The legality of such assessment is challenged upon the grounds (1) that chapter 550 of the Laws of 1901, in pursuance'of which it was made, viol...
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This proceeding was instituted by the city to acquire title to-certain land's- and wharfage property for the. so-called “ Chelsea Improvement” on the North river water front, between Eighteenth and Twenty-third streets. This improvement is a part of the gen- ' eral plan for the enlargement of the dock system of the city, a part ' of which will result in the creation 'of a marginal street at the lo...
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The accident which., is. the subject of this controversy' occurred ■ on the morning of July 19, 1905. The plaintiff was a, passenger ón an open trolley car being operated by the defendant railway company and going southerly along' Michigan street in. the city of Buffalo, R. Y. Clinton street crosses Michigan street at practically riglit angles,, and at the time in / qiiestion _ a heavy delivery wa...
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The facts are not in dispute. The plaintiff purchased a ticket at the office of the defendant in the city of New York, which entitled him to transportation from that point to the city of Buffalo, N. Y., and at the same time purchased a 'ticket,which entitled'him..to sleeping accommodations between such points. The ticket which entitled him to sleeping accommodations was in fact purchased from the....
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The record in this.'case is voluminous, as are the briefs of the ■respective, counsel, but really, when immaterial matter is eliminated, the issues are very plain and simple. On the 9tli day of January, 1903, the plaintiff executed a lease to the defendants of certain premises owned by her in the city of Rochester, FT. Y., such lease to' commence on the 1st day of April, 1903, and continue until’t...
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The material facts are not in dispute. In December, 1905, one Isaac Davis and Tina Davis, his wife, were each the owners in. fee simple of certain parcels of real estate situate in the city of Buffalo, R. Y. • Isaac Davis owned the premises secondly described " in the complaint and Tina Davis was the .owner of the lands first described therein. The lands thus owned by Tina Davis aré the premises d...
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In February, 1898, the parties entered into a written agreement by which tlie defendant employed the plaintiff as its agent to can-' vass for applications for life insurance in its behalf. The plaintiff continued in this employment until July 16, 1903, when the agreement was terminated by the defendant. . There was no definite term to the agency — a hiere hiring at will, and the defendant had the ...
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The plaintiff is the owner of a farm in the' town of Mendon in the county of Monroe, extending to the center of the highway. He executed to the defendant a permit authorizing it to erect its ' telephone poles and maintain its lines along such' highway, receiving therefor five dollars.. The written' permit provided that the poles were “to be set on line of fence,” which extended for two-.thirds of ...
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The plaintiff, an elderly lady, commenced this action to recover the sum of $l,300 and interest which.she. alleged she confided to the defendants Phillips in various sums during the years 1901 and 1902 to deposit with the defendant-savings bank for her benefit,, and also to recover the possession of the pass book containing the entries of such moneys. She claims that the money was deposited in the...
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The.plaintiff, a farmer, purchased of the defendant, in the spring of 190Í, five bushels of alfalfa seed to be sowed on his farm. Ten acres were covered with the seed, and in the late summer the growth was. cut and allowed to remain • on the land, which was proper husbandry - as no crop is expected the first year. In the spring of the following year there was a fairly heavy growth on the land, but...
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The defendant is the owner of a large steel plant in the town, of West Seneca, near the city of Buffalo. In April, 1903, the plaintiff was an- ironworker in its employ, and had been one of its employees since a mere lad. On the fourth of April he was engaged with a helper in drilling holes in angle irons in the tapping, room, of its steel mill, which was a building 240 feet by 60, four stories hig...
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The district attorney is a constitutional officer. (N. Y. Const. art. 10, § 1.) There does not, however, seem to he any statute defining his general duties. The County Law (Laws of 1892, chap. 686, §§ 200-204, as amd.) provides for liis- election, term of office, etc., but does not prescribe his functions. In very general language, prior to the enactment of the County Law, there had always been a ...
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The plaintiff owned a house and lot at the corner of Third and Main streets in the city of Niagara Falls. ■ The defendant was *50engaged in the manufacture of bleaching .powder and other products by the excessive heating of lime and salt, producing chlorine gas. Its plant was only a block distant from the premises of the plaintiff and her claim is that the escaping gas pervading the atmosphere abo...
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The plaintiff’s right leg was crushed by the wheels of a railroad .car passing over it, resulting, in the loss of the limb. .
He was a passenger at the time on the defendant’s train ; he was on his way from Syracuse, his home, to some point in the Adirondacks. Before reaching his destination he had alighted at a small station where the train had stopped to take water ; he got off to get something ...
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The action is brought to recover for overtime work of the plaintiff while in the defendant’s employ, at divers times during the years 1900 and 1901. The defendant contends that there ivas a variance between the proof and the allegations of the complaint respecting the contract. We think there was.no such variance as to make that objection tenable. It is true that the complaint alleged that written...
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The plaintiff, a workman' in the defendant’s plaster mine, was hurt while so employed, a mass of rock and other material falling upon him from the roof of the mine. . He contends that the defendant failed in its duty to secure the roof and prevent its falling and make his working place reasonably safej that the defendant by reasonable inspection could have ascertained before the mass of rock fell ...
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The judgment and order should be affirmed, with costs. The action was brought to recover damages for negligence of defendant’s highway commissioner, resulting in injury to the plaintiff. The negligence alleged consisted in leaving the approach to a bridge unguarded. ' The plaintiff started to'drive across the bridge. Her horse, after going part way across, became frightened* stopped, refused to pr...
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The judgment and order should he affirmed, with costs. The. action was to recover damages for personal injuries alleged to have resulted from defendant’s negligence. The plaintiff was engaged in wheeling coal from, a coal pile in defendant’s yard to the boiler house, and was under the general superintendence and direction of one Hassett. The coal ivas being- taken from a pile some eight or ten fee...
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. The exceptions should be overruled, and the motion denied, with costs’to-defendant, ■ The action was brought to recover damages for personal in j nries alleged, to have resulted from defendant’s negligence." The accident occurred and the injuries were received by plaintiff in alighting from a. train of defendant in the night time., Plaintiff stepped off the car. steps while the train was still i...
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The..judgment and order should be reversed and a new trial, granted, with costs to. appellant to abide event. The action was brought to recover upon a policy of accident insurance for' partial disability for a period of twenty-six weeks, by reason of an accident to the plaintiff. - . The defenses interposed were: • First. Breach of warranty, plaintiff having stated that his weekly income was $300,...
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Judgment should be ordered for plaintiff for $2,640, with interest on $1,228 from Jnne 1, 1904; on $872 from June !, 1905* and' on $540 from June 1, 1906, without costs. The facts stated as briefly as practicable are as follows: The parties are corporations, located at Buffalo. The plaintiff operates a street railway in that city-and- a line therefrom to the villages of Depew and Lancaster by elec...
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The judgment should be affirmed, with costs. The action was brought to rebover damages, for the death of plaintiff’s intestate, alleged to have resulted from the defendant’s *82negligence'. The nonsuit was granted .on the-ground that there was a failure to prove any negligence on the part of the defendant which resulted in ■ the death. ■. The immediate causé of death was injury by-steam escaping f...
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The order should be reversed,' with costs, and the application denied, with fifty dollars costs. The. serious question involved in this ’ appeal ■ is whether peremptory mandamus is the appropriate or a proper remedy. The question does not involve the claims of. respondent alone. There are many others of a like nature, and the precedent here established is likely to be followed in all other cases o...
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Appellant^ and respondent own rights in the waters of Mohawk River, appurtenant to premises within the limits of the city-of Little Falls, severally owned by them or in which they have separate interests. The serviceable value of these rights is practically dependent upon the maintenance in that stream of a dam, with suitable bulkheads, canals and waterways in connection therewith. There are other...
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Page 1716
.James G-. Hunt is the survivor of the two persons, who áre named as the executors and trustees in the will of John IngersoB, deceased. His coexecutor "and cotrustee was John D. IngersoB. The testator died October 21,1883, leaving him surviving as his heirs at law one son, John D. IngersoB, above named, and one daughter, Mary Hunt. His will was shortly thereafter duly admitted to probate, and lett...
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. The controversy between plaintiff and defendants originated in an-attempt b.y plaintiff, to move certain houses from their present or previous location-in the city of Oswego over and along the city’s intervening public streets to a location which had been procured for that purpose in another part of the city. The proceedings have resulted in a judgment in plaintiff’s favor, enjoining defendants ...
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The decree should be modified to conform to the views expressed in this opinion, and as modified affirmed, with costs to the Board of Home Missions to be paid from the estate-. Humerous questions are raised on this appeal, and all of them have been disposed of in accordance with an opinion writtén by the surrogate. He seems to have arrived at correct conclusions with a single exception, which alon...
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The writ should be dismissed, with fifty dollars, costs and disbursements. • . The question involved is the right of the police commissioners to summarily remove the chief of police, under section 274 of the charter (Laws of 1904, chap. 300) without any charges or thprocedure, prescribed by section 275. There seéms to have been some indecision at -first as to the power 'of summary removal, and t-l...
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The sole question presented by this appeal is which of the parties, "if either, is entitled to costs of the proceeding. ■ The village of Theresa,- by its electric light commissioners, desiring to acquire. certain real estate, situate in said village, owned by the defendants, made its petition in the usual form, serving a copy thereof upon the defendants, with the usual notice of motion. The defend...
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The judgment and order appealed from should be reversed, and the judgment of the Municipal Court affirmed, with costs of this appeal and of the Special Term.
The plaintiffs.were copartners, and brought this action to recover for plumbing materials and labor furnished and performed for defendant. One of the defenses interposed by the defendant was that the plaintiffs were engaged in the plumbing bu...
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The exceptions should be' overruled, and the motion for a new trial denied, with costs to the defendant.
The action waé brought to recover damages.for injuries resulting in the death of plaintiff’s intestate, alleged to have resulted from defendant’s negligence.
The intestate, a girl about twenty-one years of age, met her death in Pennsylvania while going from Suspension Bridge to New York city on...
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The executors of the will of Lydia M. Francis, deceased, seek by-this appeal to have a tax amounting to $3,589.30, which has been imposed by the Surrogate’s Court of Oneida county upon tlfe interest in the.estate of their testatrix passing by her will to the Didymus Thomas Memorial Library Association canceled, and that interest declared to be exempt from-such taxation. This association, which is ...
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That plaintiff’s complaint states facts sufficient to constitute a cause of action against defendant has been determined by this court on an appeal by plaintiff from a judgment obtained at the Herkimer Trial Term in favor of defendant which dismissed the complaint on the ground that the complaint did not set forth facts sufficient to support the action which plaintiff sought to maintain. (Bennett ...
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' This action is for the negligence of a master towards its servant. The court limited the question of liability to the ■ absence of rules. I think that the judgment for the plaintiff cannot stand.. The plaintiff’s intestate was a blacksmith of long service in the defend; &jyt’s repair shop. Power was furnished to -the emery wheel, grind*141stone, drill press and forge by a shaft placed near the ....
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The learned trial judge made a finding of fact of substantial, performance of the contract, by the-plaintiff,- but deducted from his recovery an-item of'$100 to pay for covering some hot water pipes with asbestos, the obligation tó do which was left uncertain by the words of the contract,-another of $100 to repair damage to some stucco caused by it being laid on brick that was too moist. There is ...
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The plaintiff was employed as a ■ machinist in. the defendant’s shop.. He also closed .up the shop every night, that being his duty. He' testified that as he was closing, a window in the performance of this duty, part of a pane of glass fell out of it and cut his arm, •. Another witness testified- that he had noticed for a few weeks that the pane was cracked across; On this the justice gave, judg*...
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The plaintiff appeals from an interlocutory judgment overruling a demurrer to three, separate and distinct affirmative defenses alleged -in the respondent’s- answer, two of Which are also pleaded as counterclaims. The ground, of the demurrer is that as defenses they are insufficient in law upon the face .thereof, and that as counterclaims they do-not allege facts-’Sufficient to constitute a.cause ...
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It is provided in our state constitution that all laws creating boards or officers for counting votes at elections shall secure equal *148representation of tile-two largest political parties (art. 2, sec. 6). The Legislature cannot override or frittqr away this safeguarding provision by creating boards or officers not composed,as it requires to recanvass and recount the votes of an election, and s...
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The charges of which the relator was found guilty were neglect and disobedience of orders, neglect and disobedience of the rules - of the police department numbered 5a, 29 and 45b, and neglect of duty. He was appointed a captain on May 6, 1903, and was sent to the Mercer street precinct, the sixteenth, on February 24, 1904. There he remained, except during his vacation and several intervals of sic...
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The pleadings in this case were oral. The plaintiff stated his cause of action to be that he was an employee of the city of Yew York; that under án agreement with the city he rendered services beyond eight hours each day and that these services were reasonably worth fifty cents an- hour; that the city promised .to pay therefor and that it has not paid; and. secondly, that he was an employee of the...
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There is no substantial dispute as to the facts in this case. The plaintiff, on or about the 3d day of January, 1905, ordered from one John 33. "Vickery, an' agent of the International Mahogany Company, 25,000 feet of cypress lumber of specified quality and size, to be delivered to plaintiff free on board the dock in the city of New York, at the price of twenty-seven dollars per 1,000 feet, the pl...
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The parties to this action have submitted an agreed’statement of facts, .under the provisions of sections 1279 to 1281 of the Code of Civil Procedure, and must be deemed to have waived all technical questions and to have asked tlié court for a determination of. their. rights under the facts as thus stated. The board of highway commissioners of the town of North Hempstead on or about tile 10th day ...
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This action was brought by the vendee against the vendor for the specific enforcement of a contract of sale, or, in the alternative, for the recovery of the deposit money and expenses incurred. The trial court awarded a money j'udgment in lieu of specific performance. . The contract was made March-27, 1906, and provided for a sale of the premises subject to two mortgages, bearing interest at the r...
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In Griffin v. Interurban St. R. Co. (179 N. Y. 438) the court say (p. 449) : “ A sound public policy requires that only one penalty should be recovered in a single action, and that the institution of an action for a penalty is to be regarded as a waiver of all previous penalties incurred.” This action is to recover a- penalty under section 104 of the Railroad Law* for refusal to give a transfer ti...
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The plaintiff’s intestate was killed when a fireman in one of defendant’s locomotive engines that was hauling a freight train on April 29, 1905, at about 11 o’clock p. m. At the place of the accident the road was of a single track, with here and there side tracks, called sidings. ' A short distance west of Stormville station was a siding called “ Stormville long siding.” Before the train started e...
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I think that the learned surrogate was right in holding that his court had jurisdiction. (Sexton v. Sexton, 64 App. Div. 385; affd., 174 N. Y. 510.) The objection of the contestants first made was' upon the lack of power in the surrogate to hear the claim, and was then restated as against the inconsistent position of the accounting-party with respect to the property. But the learned surrogate had ...
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These are cross-appeals from a final decree, of the Surrogate’s Court of Suffolk • county in the accounting of the executors of Adolph F. Braidich. So' far as the appeal of the executors is concerned, -we shall consider it upon their amended notice thereof. Objections to .the account were filed by Mrs. Olga Blasig, of-Trieste, Austria, -only, heir and next of kin and the residuary legatee. Many of...
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The defendant has the judgment upon the verdict of the jury in this action for malicious prosecution. ■ At trial the defendant called a deputy assistant district attorney to prove his advice as advice of counsel. The plaintiff objected" on the ground that the alleged advice was given after the fact, that it was not a-defense and not a procuring cause of the arrest, inasmuch as the arrest was made ...
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This is an appeal from an order denying an application of the defendant for a certificate that it was reasonable- that the charge against him should be prosecuted by indictment. The defendant was charged with a misdemeanor in violating section 266 of the Penal Code by working on a Sabbath day as an engineer on a locomotive engine attached to cars, in moving and shunting the cars from one track to ...
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Page 1741
The relator was dismissed his place of foreman in the department of highways of the borough of Queens by the president of the borough. His grievance is that although he was an exempt volunteer fireman he did not have such a hearing, on notice and charges, as is afforded to him by the Civil Service Law.* It cannot *230be gainsaid that the return shows that in several respects the rights assured by ...
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The action is for negligence. The plaintiff has recovered a substantial verdict. The injuries alleged and covered by the testimony included an inguinal hernia. The plaintiff upon liis direct examination testified that he “ never had anything in his groin before the accident; ” that he “ never had any trouble with his groin.” Upon the defendant’s cross-examination of the plaintiff’s wife she was as...
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The controlling fact found for the defendant which led to the judgment is that plaintiff did not have title to that part of the land lying in Monticello and Green streets, and, therefore, could not convey it under his agreement with the defendant. The sole question for review is whether the mortgage on which plaintiff’s title is founded covered that part. In 1843 Ewer, the mortgagor, filed a map o...
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(dissenting) : The plaintiff and the. defendant made a written contract by which ■the latter agreed to build a boat for the former for $1,455, and have it completed and ready for delivery on July 1st following,' and the plaintiff agreed to pay therefor, in four equal installments, viz., $363.75 on the signing of the contract, the same amount when the boat was in frame, the same amount when it was....
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.The plaintiffs have had.a judgment for damages because of the defendant’s breach of an implied warranty on the sale by it of three *243barrels of a bleaching liquid sold under the trade name of Perozone. A large quantity of fine silk and cotton texture, known as mull, was treated by the plaintiffs with the Perozone and ruined. At the trial the plaintiffs claimed the fault lay in the liquid; the d...
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In Hope v. Scranton & Lehigh Coal Co. (120 App. Div. 595) the cases Were reviewed, and we reached the conclusion that the Employers’ Liability Act (Laws of 1902, chap. 600) must be construed to create a liability against the employer for the acts of .a superintendent only when .lie is-engaged in an act of superintending.' -Without the. aid of the statute the plaintiff in this case must fail becaus...
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The plaintiff’s intestate was a workman in the employ of the defendant, who was engaged in the construction of the Hall . of ¡Records in Brooklyn. At tlie time of his death he'was engaged in using a rnnway on the third floor of the in completed building. From the. elevator used to hoist building materials to the level of the third floor had been constructed a so-called runway of two planks, eighte...
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The question for our determination, presented by the record at bar, is purely one of power. The plaintiff-Rapid Transit Subway Construction Company has contracted with the rapid transit commission to build a certain part of the systenl of subways now under construction, and the plaintiff Cranford & McUamee, as a sub-, contractor of its coplaintiff, has used, with the consent and pursuant to the pe...
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The calendar judge entertained and granted a motion of the -plaintiff to prefer this cause, and set it .down for "trial on a day certain. This was done because .of the .extreme age of the plaintiff, and the likelihood that he might not live until the cause should be reached in its regular order for trial. The appeal from the order of the calendar judge is based on an erroneous notion of the ■autho...
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It is a familiar every day rule of pleading in actions for slander or" libel, that if the words complained of are equivocal, i. e., capable of an innocent meaning and a libelous meaning, the former has to be adopted by the court at the trial, and the case has to be dismissed ; unless the complaint has a special allegation that the libelous meaning was the one meant and conveyed by the defendant, i...
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■ This is a suit to enforce specific performance of a contract to convey real estate. The appellant is the owner of the real ’ estate, *261but did not make the contract. Section 1670 of the Code of Civil Procedure permits a notice of the pendency of the action to be filed with the complaint before the service of the summons, but requires, in that case, that the summons be served personally on “a d...
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This action was brought in 1889 to construe the will of John J. Van Rostrand. J udgment was entered May 8,1889, and it and the findings were amended by Mr, Justice Cullen, the'trial judge, sitting as a court, hy an order dated June 8, 1889, changing the word “children” to “legal heirs”, to conform'to.the exact terms of the will, the word children'Jiaving been .used by inadvertence. Rothing further...
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The only question to he considered is whether the plaintiff .made out a case entitling him to go to the jury. While the evidence might not he regarded as entirely satisfactory, yet there was sufficient, if the jury believed it, upon which to base a finding that this was a ferocious, dog,, kept by defendant for several year's, with knowledge of his vicious disposition, arid that the attack -on plai...
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The defendants appeal from an interlocutory judgment in an action brought to have certain deeds of real property, situate in .the borough of Brooklyn,. executed by plaintiff’s deceased father, Christian Leidenthal, and his wife to Anna Maria Leidenthal,.' declared null, void and of no effect because of their non-delivery to and. acceptance by Anna Leidenthal, a daughter of the decedent and a minor...
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The relief sought in this action was the specific performance of a land contract, with deductions from the purchase price for .alleged violation filed by' the department of health. or if the defendant could not convey a good 'title in accordance with her contract, for judgment for a payment of $100-made upon the contract at the time of its execution and $100 expenses incurred in examination of the...
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This case is; not controlled.by our decision in Woolsey v. Long Island R. R. Co. (106 App. Div. 228). That case was decided upon the .authority of Springer v. Westcott (166 N. Y. 117, 123) and Strong v. L. I. R. R. Co. (91 App. Div. 442), which held that a traveler who delivers his baggage to an express of transfer company and' receives- a voucher is hot- bound by its terms unless apprised thereof...
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This is an action in equity to enjoin the maintenance and operation of an elevated railroad in front of the plaintiff’s property. The plaintiff, who owns the fee to the center of the street, derived title from the Brooklyn City Railroad Company. The latter on J une' 3, 1893, gave to the ¡Kings County Elevated Railway Company, the defendants’ predecessor, a written consent, which, after reciting th...
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The plaintiffs, as vendors, brought this action to compel specific performance of an executory contract of purchase and sale of real property, alleging a breach on the part of the defendant. The defendant set up a counterclaim, alleging that the plaintiffs-were in default and asking for-a return of his deposit and for damages. -On the trial the plaintiffs, having previously sold the property, with...
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The plaintiff’s complaint was dismissed at the opening of the case on the ground that it did not state facts sufficient to constitute a cause of action. The complaint attempts to set forth two causes of action, one on a contract for the sale and installation of' a compound pumping engine, and the other for extra labor and materials performed and' furnished in connection therewith. The complaint al...
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The question presented by this appeal involves the construction and validity of the 3d clause of the will of William Z. King. The material portions of said will read as follows, viz.: “First.. I give, and bequeath to my wife, Mary E. King, the house and lot where I now live during hen lifetime, and at her decease I will that the said property shall go to my sisters, Eliza Tall man, Cynthia A. Tuth...
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Woodward, Jenks, Hooker, Gaynor and Rich, JJ., concurred. The following is the opinion delivered at Special Term: On February 5, 1894, the highway commissioners of the town of Flatlands consented to the construction of the railroad. It is agreed that they, were the proper local authority to consent, *294if consent could then he effectually granted at all, but it is claimed that their consent was a...
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It is'well settled bv the law of this State that in- order to constitute an effective and irrevocable dedication of private property for a public highway there must be an intention on the part of the owner to so dedicate and an unequivocal acceptance- of the same by or on behalf of the public. Whether or not a dedication has been consummated in a particular case is to be determined from the acts a...
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The plaintiffs executed a lease of the premises in question which entitled the defendant to occupy the same for the term commencing *302October 1, 1904, and ending October 30,1910>for a monthly rental of fifty dollars, payable monthly. ■ Said lease contained the provision : “But it is understood that in case a license to sell liquor cannot be obtained under the law that this lease shall termina...
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The proceeding was brought to recover the possession of certain lands situate on the Tuscarora Indian Reservation, in the town, of Lewiston, Niagara county, consisting of about twenty-thrée acres of farm land, with buildings thereon, and occupied for . .many years by Jeremiah Peters, a Tuscarora Indian,' up to tlie time of his death in March, 1900. Both the petitioner and the defendant are Tuscaro...
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Page 1765
The deceased, Daniel J. Printup, died intestate on or about June 20, 1906, a resident of the county of Miagara, leaving personal property exceeding in value the sum-of $250,. and the value of all the real- estate of which he died seized,: wherever situate, as is stated in the petition, will exceed $2,000. His debts. aggregate upwards of $500, and his son, Eleazer Printup, who is the sole contestan...
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In fixing the damages to be awarded plaintiff the referee adopted the rule- of damages applied in admiralty cases and allowed the cost of repairs already made by plaintiff, and those yet to. be. made to restore the boats to the condition they were when leased, for the idle time of boats while repairs were being made, together with interest on these amounts. We think that this rule, adopted by the ...
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The defendant cannot resist liability upon the ground that the time within which tó pay the liability guaranteed lias been extended by the'taking of the new note.. That extension was with the full consent of the sureties, and was in fact negotiated by the defendant McN aught, who is now defending, hi or can the defendant defend by reason of the failure to charge the indorsers at the time that the ...
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(dissenting): The plaintiff brings the defendant into a court of equity, contending that he is entitled to have' his policy of insurance rescinded on account of the defendant’s fraud, and the rights of the parties adjusted upon equitable principles. ' There are two reasons why he is not entitled to recover in this action. First. Ho fraudulent representations are shown which have been in any manner...
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The motion to vacate the judgment was made solely on the ground that Niver was not the agent of the casualty company and, therefore, that it was not bound by the service of process on.him, but we think there was not sufficient proof before the court to justify that conclusion. Upon, the motion the casualty company presented the affidavit of one Galloway who swore that he was an employee of the com...
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The complaint herein has heretofore been sustained by this court on a demurrer thereto for insufficiency. (Rathbone v. Ayer, No. 1, 84 App. Div. 184.) Keeping in view the determination then made the case on this appéál becomes much simplified and much discussion may be eliminated which might otherwise be pertinent. The inquiry is now narrowed to a consideration of the question as to whether the pl...
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In 1902 the plaintiff made a contract with the defendant by which the defendant’s corporation agreed to furnish to the plaintiff a cemetery monument consisting of a Latin cross resting upon a Calvary of three steps “ to be executed in best white Westerly granite as per designs and lúodels seen and approved.” By oral contract between the parties the defendant was to furnish a double headstone accor...
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We.do not agree that the relator should be entirely exempt from taxation on the ground that all of its capital was employed within the State of Yew Jersey, and that the amount held to have been employed as capital within this State is a part of the company’s surplus. To uphold such a contention would be to open the way to an easy evasion of the Tax Law of this State. (See, also, People ex rel. Com...
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It was recognized upon the trial of the action and it is undoubted law that an attorney’s negotiation for work to be done in a law suit is the act of an agent for a known principal and for the expense of that service the agent does not become personally responsible. (Bonynge v. Field, 81 N. Y. 159; Judson v. Gray, 11 id. 408, 411; Covell v. Hart, 14 Hun, 252; Livingston Middleditch Co. v. New York...
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Elizabeth Gamble died in 1897, leaving a last will and testament which was duly admitted to probate and wherein were nominated as executors her husband, John Gamble, and her daughter, Sarah' J. Bossell. These executors duly qualified, but have filed no inventory, and their accounts as executors were never judicially settled. Sarah J. Bossell died in June, 1904, and her husband, Isaac S: Bossell, a...
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The plaintiff presented a claim to the defendants- against the estate of the decedent, amounting to $6,518.50 and interest for *386money paid" and services rendered, to apply upon an alleged verbal contract for the purchase of certain lands, and for the amount expended for permanent improvements thereon, It was shown upon the trial that in October, 1889, the plaintiff .entered into a contract in w...
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This action was brought to recover damages for a "personal injury-alleged to have been caused by the.negligence off the defendant.
At the close of the trial, and pending the decision, of a motion for the direction off a verdict in favor of the defendant, the court submitted to'the jury whether the defendant was negligent, the plaintiff free from- contribntory negligence, and the amount of' damages...
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The plaintiff’s intestate, a boy seventeen years of age, was on a tugboat on the night of July 26, 1903, taking a pleasure sail. When the captain of the tug desired to put the passengers ashore the water xyas so rough that he did not deem it safe to land them by means of certain small boats in which they had come to the tug. He landed them at a pier on the shore of the East river belonging to the ...
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The surrogate finds as facts in the decree appealed from that the instrument alleged to be the last will and testament of the deceased was not duly executed as required by law; that the testatrix at the time of executing it was incompetent to make a will; and that she was then acting under restraint and undue influence. • Not a word of proof was given on the hearing before the surrogate tending to...
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The action was commenced in the month of August, 1906, by the service of a summons, together with a notice that upon default judgment would be taken against the defendant for a specified sum of money, with costs. The defendant duly appeared by attorney and demanded a copy of the complaint. The complaint was never served, and in November, 1906, the defendant moved for a dismissal of the complaint, ...
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The respondent was duly- assigned as counsel to defend James W. Simpson, who- was indicted in the. county of Suffolk for the crime of murder in.the,first degree.. The-accused-was thereafter tried and acquitted. Subsequently an application was made to the Supreme Court at Special Term by the-respondent, upon notice to. the district attorney, for ah allowance of counsel fees and for his personal and...
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The defendants-were' engaged as contractors in excavating earth and rock and'constructing certain cement walls at Ossining for. the Mew York Central, and .Hudson River Railroad Company on and prior to the 2d day of MarcR 1906. . Plaintiff’s intestate was an employee, of the defendants, and constituted one of the members of the gang engaged -in constructing tlié' cement. wall. Some days prior to th...
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Section 96 of the Sanitary Code, under which .the defendant, as superintendent of "the factory of the William E. Uptegrove & Brother Coinpany, has been convicted' and fined $100, -reads as follows :■
“The owners, lessees, tenants, occupants and managers of every building, vessel or place in or upon which a locomotive or stationary engine, furnace or boilers are used, shall cause all ashes, cinders...
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The plaintiff' is an abutting property owner and taxpayer upon the line of the defendant’s street surface railroad, now in' process of construction, and he brings this action to perpetually enjoin and restrain the respondent from constructing and operating its railway in the town of Islip, Suffolk county. The respondent is a duly organized company for the purpose of constructing and operating a st...
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The defendant, Shaw Was the town clerk of the town of White Plains, and as such had performed certain services for which he claimed he'was entitled to the sum of $588 from the town. . On the 17th day of ¡November, 1904, he presented a bill for such services to the board of town auditors of the town, and on the 25tli day of ¡November, 1904, at a regular- meeting of the board of town auditors, a res...
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The complaint alleges that the defendant, a corporation, delivered to the plaintiff’s assignors, the Oceanic Steam Navigation Company, at New York city, a piece of machinery for transportation to Liverpool, England, and reshipmerit thence to Oporto, Portugal, and represented at the time of such shipment that the said piece of machinery, together with the timber in which it was packed, -did not wei...
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The complaint alleged a promise of the defendant to pay to the plaintiff $1,000, or so much thereof as the trust company paid for assessments, as soon as the trust company made the payment. The action was commenced on the 4th day of December, 1905, by the service of the summons on the .defendant; the payment by the trust company of the assessments was not made until the 23d day of December, 1905. ...
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Thomas Murphy, the elder, died in Brooklyn in the year 1867, leaving a last will and testament which was duly admitted to pro■bate in Kings county; letters of administration thereon were issued to his widow, Eliza, and his son, William E. Murphy. At his death the testator left him surviving his widow, Eliza, and liis sons, William E., Thomas, Frederick and Daniel, and his daughters, Eliza and Augt...
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We are inclined toehold, as matter of law,-that danger was not reasonably to be anticipated from the presence of the hole in which the plaintiff was injured, and hence the defendant is not liable. In Butler v. Village of Oxford (186 N. Y. 444), the leading cases in this State dealing witli irregularities in sidewalks of substantially the size of the one which caused the plaintiffs injury were care...
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The plaintiff was the owner of certain letters patent of the United States, and was in the' business of constructing and leasing cloth-cutting machines built according to the specifications of such letters. One of her machines she leased to the defendants, and in the agreement the plaintiff was denominated as the licensor and the defendants as the licensees.- Upon the installation of the machine s...
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The facts which are deemed important in the' consideration of this appeal are not in dispute. The plaintiff recovered a judgment against the defendant in the Municipal Court of the city of New York, in the borough of Bichmond, on the 14th day. of April, 1905, for seventy-six dollars and forty-three cents’, a transcript of which judgment was filed and the judgment' docketed in the office of the cle...
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The plaintiff brings this action to recover damages on the theory that, being a tenant in peaceable possession of certain premises, she was forcibly evicted from the same by the defendants. The facts developed on the trial showed that the plaintiff’s husband rented the premises from the defendant Safford, as agent of a third party ; that he was in possession of the saíne, under his lease, until th...
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; • This action is brought, as we have seen by the above complaint, to restrain what is alleged to be an unlawful combination between the defendants, in restraint of trade in tobacco, in Greater New York; and the only question before us is, whether the facts alleged in the complaint, as varied by the opening, establish a cause of action. Every allegation of fact contained in the pleading must be t...
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The question to be determined involves a consideration of the 2d and 3d subdivisions of the complaint, which are as - follows: “II. That, on or about the first day of April, 1892, these defendants entered into a contract or agreement with this plaintiff toi him to furnish materials and -labor as a mason builder and to erect said buildings pursuant to plans by them provided and -to pay' him for the...
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The facts in' this case' are simple, although they appear to be involved because of the method of presentation. Richard Ri Lá Ban, Frank Alvin La Ban and Alice J. La Bau Barker Were the owners of certain.'real property as tenants'in common. Richard had a power' of attorney from his cotenants to sell- the property. He employed the defendant ás a broker. The latter -made á contract with the plaintif...
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The appellant argues that this action, being for breach of contract, cannot be maintained for the: reason that no enforcible contract was made, and that it should have been brought for a failure to make a contract. The argument, to say the least, is not ingenuous, for the complaint alleges the refusal .of the defendant to execute a contract which had been awarded to the plaintiff upon competitive ...
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The first -.question involved in this case relates to • the validity of the lien, notice of which was filed, in -New York county on -the 20tli and 23d days of November, 1903. An order Of the County Court of Queens county extending the lien for a period of six -months was granted February 16, 1904, pursuant to section 17 of the Lien Law (Laws of 1897, chap. 418, as amd. by Laws of 1902, chap. 37). ...
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The plaintiff and defendant were architects. Both were engaged in figuring upon and obtaining work for a firm of interior decorar tors. Plaintiff claims that the defendant agreed to.give him ten per cent of the gross amount of a certain contract then under consideration if he, the plaintiff, would not figure .on it, and he asserts that the defendant said that he, the defendant, received as a commi...
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Page 1798
This is an appeal from a decree' of the Surrogate’s Court of Kings county denying probate to the will of Edwin E. Thompson, who died September 14, 1904, leaving him surviving a widow and a son, two sisters and a brother. The will was made April 14, 1903, the first codicil July 16, 1903, and the second, codicil September 13, 1904.' So far as appears from the evidence, the only property of any value...
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This is a sidewalk case. The .'defect complained of was a depress sion caused by the construction, of a curb about ten or twelve inches from the old curb without sufficiently filling in the intervening space. The plaintiff was permitted to prove, over the specific objection that the evidence was irrelevant, that this space was filled in shortly after the accident. Such evidence in this class of ca...
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The judgment appealed from adjudged certain changes in the defendant’s by-law’s respecting the rates of assessment upon its mem-' bers to be void, and restrains the defendant' from enforcing said amended by-laws. 'The defendant is a fraternal beneficiary corporation, organized under the laws of the State of Hassachusetts, for the purpose of affording fraternal assistance to its members and establi...
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The relator asserts that.hé was discharged from á position in the service of the department of docks and ferries of the city of New *479York without a hearing upon due notice upon stated charges which lie claims he was entitled to, pursuant to section 21 of the Civil Service Law (Laws of 1899, chap. 370, as amd. by Laws of 1904, chap. 697), by reason of the fact that he was a veteran fireman. The ...
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This appeal involves a question of costs in a partition suit. The case was tried before the late Justice Wilmot M. Smith, who made *481a decision containing findings of fact and conclusions of law in which the rights of the respective parties were stated, and a judgment was directed for actual partition, with costs to the plaintiff. Upon this au interlocutory judgment was entered which provided th...
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The Justice- gave judgment for the defendant, on the ground that “ there is no proper proof in this case , as to damages ”. The' -notion seems, to. have been that , the measure of -damages was the difference between the rental value of the place with and without the agreement for. heat, hot water and steam- being.kept. If this, were so, the evidence of falling off of customers' and receipts was *4...
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The judgment should have been for the plaintiff. The parties met on the contraced ay, and according to the oral téstimony for the defendant at least two objections to the title were made by the plaintiff, viz., 'that there was a valid judgment lien against the property, and an insufficient acknowledgment to one of tlie deeds of conveyance in the defendant’s chain of title. That these objections we...
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The evidence shows that the plaintiff -knew that the defendant was acting in a representative capacity, a’nd not for himself. Judg ment seems to have been given against Inin because he signed Stone’s name without authority, but he did this at the plaintiff’s *486insistence, the latter knowing that Stone had nothing to do with the matter (Crandall v. Rollins, 83 App. Div. 618). The judgment should ...
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-The defendant in. building a house on his-lot adjoining the plaintiffs’ house negligently and needlessly excavated under, their, fence ahd caused' it to fall. A strip of the plaintiffs’ soil three feet wide' also fell into the excavation, carrying with it their rose' bushes. The defendant -also- stored lumber on the plaintiffs’ roof, broke a .shutter, and his men' committed, acts of personal nuis...
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The plaintiff was hurt.by the negligence of the defendant while it was carrying her as a passenger in its street car, as it is claimed. The tidal .justice persisted in charging the jury that the company was bound to carry her safely. The judgment should be reversed. Woodward, JenKs, Hooker and Rich, JJ., concurred. Judgment of the Municipal Court reversed and new trial ordered, costs to' abide the...
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The widening of the appellant’s railroad tracks in the city of Mount Vernon was being done by a contractor under a written contract with the appellant. Eock had to be blasted in the work by the contractor. The contractor used dynamite for this purpose. One hundred and five pounds of it in a box at a point on the work exploded, and the shock injured' the plaintiff in her house near by. She brought ...
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The motion to dismiss should have been granted. - The defendant. claims that the policy of fire insurance sued upon was void ab initio, under the clause in it that it .should be void if the insured had any .other contract of insurance, “ whether Valid or n.ot ”, on the property insured, unless otherwise provided by an. agreement in writing indorsed on or addéd to the policy. ' There was no such ag...
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While the first clause of the will contains an imperative direction to sell the real estate, and standing alone would convert the realty into personalty, it is modified by the next two clauses, which' make such sale depend on the discretion and consent of Herbert Fearn. It cannot take ■ place at all except by his consent. The corpus is left.undisposed of by the .will. The trust created is to colle...
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The controlling facts in the case are that the defendants put their farm of about 103 acres in the hands of a large number of brokers for sale, including the plaintiff; that the plaintiff’s representative saw them ; that they authorized'the plaintiff to sell the farm at §650 an acre; that the plaintiff went with a committee of- the board of education of the city of New York on April 25, 1904," and...
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This appellant and his wife owned a piece óf real estate as tenants by the- entirety.. They conveyed it, and took back a purchase-*497money bond and mortgage made payable to both of them for part of the purchase money. He owned another piece of real estate, conveyed it, she joining, and took back a like'purchase money bond and mortgage made payable in the same way. She afterwards died and lie is-h...
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The case comes down to this: The defendant Frank C. Kohart (and the appellant only represents him, as the trial judge found) owned four adjoining lots of land. He erected detached . one . ■family dwellings on two of them, and sold ahd conveyed one to each of the plaintiffs. To induce them to purchase he represented to them that each of the two remaining lots were restricted against the erection of...
Views: 2
By the Transportation Corporations Law (§ 102) leave is granted by. the state to telegraph and telephone companies to construct, and maintain their fixtures “ over or ¡under any of the'- public roads, streets and highways This is full permission- without compensation so far as the state can give it. Where, however, the fée.'of the highway belongs to the abutting owners, instead of being in the sta...
Views: 0
The plaintiff does not state in his- affidavit what kihd of-an- action he has. brought by the service of the summons. It may be gathered from such-affidavit that it is' a suit for an accounting. It states that the plaintiff had an oral agreement with the defendant to-got purchasers of real estate owned or controlled' by it, the'■'plaintiff to be paid a percentage of the net profit -the"defendant s...
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The judgment vacates an assessment on the plaintiff’s property for the opening of a street in the city of Mbunt Yernon, the defendant, on the ground that whereas the charter of the city required “ a unanimous vote ” of all of the members of the common council to allow the improvement, there was a unanimous vote of only eight of. such members, all that were present, the whole number being ten. That...
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The order appealed from, granting the defendants’ motion to change the place of trial of the action from the county of Kings to' the county of Monroe, appears to have been granted on the ground that the convenience of witnesses will be promoted by the change. Without detailing the circumstances attending the. making of the contract sued upon, the bringing of the action and the number and the resid...
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This "action was brought to foreclose a building and loan gross premium mortgage, drawn'in the usual form. The defendant Wood and' his wife sold the premises to a man named Mittnacht, the latter acting *508through one Rebecca Fitzgerald, and no payments were made after .the sale to ifittnaclit. By-the' -t,errns of this mortgage, as understood ' by both the plaintiff and defendant, as showm by the....
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This is an action against the members of á partnership doing business as cotton brokers, to recover damages for closing out, without notice to the plaintiff, certain speculative accounts which they were.- carrying for him pursuant.;to. a' contract- the,¡-t^rms., of which are in dispute, the plaintiff claiming that it was orahapd the. defendants that it was partly oral. and partly written. For the ...
Views: 0
' This case should have been dismissed. The negligence alleged,' and on which, the verdict is based, is that the defendants should have furnished a glass vessel instead -of. a tin one in which- to compound the alcdhol and phosphorus, The theory on. which the case went to the jury.was that a particle or some particles of phospliorns had adhered to the upper part of the inside of tlie vessel, the ti...
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The County Court is of limited jurisdiction, and is therefore not within the rule that the jurisdiction of. courts of general jurisdiction is presumed. It has jurisdiction of-an action to recover money where the defendant resides in the county and the sum demanded does not exceed - $2,000 (State Const. art. 6, sec. 14). It can no longer be gainsaid that it is necessary that the- complaint in such ...
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■ .The defendant was repairing Btishwick avenue under a contract with the city. The old pavement and the curb stones had been torn up, and' this w^s the condition at the corner of, Coopeb street where the plaintiff claims to have been hurt. The street was littered with . material.' The plaintiff testified in answer to her counsel: I knew that the ¡hace was pulled up pall the,stones and everything ...
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The judgment appealed from is one of nonsuit, the complaint having been dismissed at the close of tbe plaintiff’s ease. The action is for damages for injuries alleged to have been occasioned by .the defendant’s negligence. On the 26th day of February, 1906, at eight o’clock in the morning, the plaintiff was being driven in a top buggy up Broadway, in the borough of Manhattan, The top was up, and t...
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I think the plaintiff failed to make proof sufficient to establish his cause of action. The suit was brought to recover- on two policies of insurance issued by a certain Lloyd/s association, known as the Fidelity Insurance Association of New York, of which it is alleged the defendant is an underwriter. The complaint alleges that the manager of .said association is a-company organized under the nam...
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The learned justice presiding at the trial charged the jury, and no one raised an objection, that both parties to' the controversy conceded that the contract between the, plaintiffs and defendants was ■not fully, expressed in. the letters and other documents in evidence. This being true, the defendants are now in a position to urge error-in the admission of evidence, the object of which was to bri...
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This case as finally submitted to' the trial court presented a question of fact as to whether or not the passenger by adequate word or sign requested a transfer from the conductor at the time lie paid his fare. This question was decided in- favor of the plaintiff. I am of opinion that the decision upon the facts was justified by the evidence. This being so, the question of law presented in behalf ...
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It may be that more learning was resorted to below, and in argument at our bar, than is applicable to the case. If a trust was created by the sixth clause of the will, then upon the death of the life beneficiary, Maria Ema Seward, the trustee .was under a- duty to account to her children, viz., this plaintiff and her brother, the defendant Seward. If there was no trust, and instead the said mother...
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I think that the intendment of the testator was an express trust in the executors; not a power, in trust. (Spitzer v. Spitzer, 38 App. Div. 438; Hubbard v. Housley, 43 id. 129; affd., 160 N. Y. 688; Staples v. Hawes, 39 App. Div. 548.) I think that the provision empowering the executors to sell “at such time within five years after my decease as they may be able to obtain the' sum of fifty thousan...
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This action is by the surviving trustee under the ‘will. of Hew- • berry Halste.d, deceased, to pass his accounts and incidentally to determine the ownership of certain lands involved. The accounts were passed without objection, and the sole question litigated and brought up to us relates to the said lands as to which two of the defendants present conflicting claims.
The will of the testator, who ...
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The action i& by. servant. against master for negligence. The plaintiff, while at work as a bricklayer in a building in the course ,of construction, was struck by a falling .thing from the upper part, of" the building and injured. The alleged negligence is that the master failed to furnish a safe and proper place for the servant to work in ; that the servant was put. at work-in a place not prope'r...
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! The complaint was oral, as follows:' “ for money had and received fbr Use of, the plaintiff.” The bill of particulars filed by the plaintiff states that the action - is brought by the plaintiff, a member of the firm of. H. Baron & Co., composed of -the plaintiff and the defendant Green, against Green, an absconding partner, and the defendant Lakow, for the return of partnership money wrongfully ...
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This is not a trade mark case, but a trade name cáse. A trade mark designates an article of commerce, and is affixed thereto. It is thus general or universal, accompanying the article, while a trade name applies to a business and is as a rule local (Paul on Trade Marks, § 177; Browne on Trade Marks [2d ed.], § 91). A trade mark may be infringed anywhere; but not so with a tradename. For instance, ...
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The plaintiff’s cows strayed along the country highway, at night, and one of them was-killed by.the defendant’s electric car thereon while crossing in front of it. That the cow was killed is riot.enough to prove that the defendant was negligent and therefore liable. And yet that is all this verdict is based on. The .plaintiff gave no evidence of how the thing happened. The defendant called the nio...
Views: 0
■ The motion to dismiss at the close was properly denied. Especially owing to the lack of light, it was a, question of. fact whether it was not negligent not to have a door or gate in the elevator car itself, or else oh the inside of the opening or arcli through the wall which was the entrance to the elevator car, to prevent persons in the car from inadvertently getting so cl osé. to the entrance ...
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•This complaint is for damages for the negligent loss of the plain-, tiff’s baggage by the defendant. It was received by the defendant in the city of New York and was to be carried thence to Lakewood, N. J. The answer pleads two partial defenses. The first is that the railroad ticket on which the baggage (a trunk) was received and checked bore upon it a “ stipulation and condition ” that free tran...
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The plaintiff was employed by the defendant. He worked in the railroad yard. It wxas four 'miles long and had fourteen tracks. Cars were “ kicked ” down upon these tracks, daily and often, so that many cars stood there. Many men worked there. The plaintiff was.with a gang of men in the,yard' under the direction of a forer man. He directed them what to do, one thing and then another, and they had t...
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The complaint alleges that on February 2, 1904, the defendant leased bis farm to the plaintiff for the year beginning April 1,1904, and ending April 1, 1905, “ upon the express agreement and condition ”'that if the defendant “ should at,any. time during such term 'sell said premises,” the plaintiff “would vacate said¡iremises upon receiving thirty days’ notice so to' do, and that the defendant, he...
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The best phase of the testimony of the plaintiff and. liis witnesses is that he was walking across 3rd avenue in Bronx borough ■ near 180th street in the' middle of- the. Block after lark; that as he was about to step ón the uptown .track (the first-he -reached)"he looked south and saw a car approaching at á medium rate of speed 60, 75, or 80 feet away; that as he got to the middle of this track h...
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By chapter 729- of the Laws of 1605 provisions were added to the Tax Law by which mortgages on anal estate were taxed o.ne-half of o.ne per cent annually,'and exempted from taxation by local'a-mthorn ties.(Tax Law, art. 14). By chapter 532 of the Laws of 1906 this scheme was superseded by provisions which substituted a recording tax on mortgages thereafter-to be. made, and exempting all mortgages ...
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In this action the plaintiff has recovered a judgment for damages which he claims he -has sustained in consequence of the deceitful representations of the defendant Zimmerman and of Rogers, Brown & Co. (of which firm defendant Rogers was a member), by wliieh he was induced to .purchase of them $48,000 in par value of the stock of the Alabama and Georgia-Iron Company, paying them therefor $20,000 i...
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The defendants entered into a written contract with the plaintiff, by the terms of which the latter agréed to print and have ready for delivery on or before June 10, 1905, 500 twenty-one-sheet descriptive stands in two colors, and 1,500 three-sheet posters in four colors, for the use of the German Marine Band, a traveling musical organization, of which the defendant Ilindermaim was'bandmaster or l...
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This action is brought to recover damages sustained by an infant six years of age in consequence of being run over by one of defendant’s loaded trucks. There is sufficient evidence to sustain the finding of negligence on the part of .defendant’s driver of the truck, and that at the time of the accident the' driver was the servant of defendant. The learned trial justice submitted to the jury as a q...
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This action is brought to recover damages for a personal injury. The complaint alleges that the plaintiff was a passenger on one of defendant’s cars, and that upon attempting to alight, therefrom at á station, -upon the - platform -of which there was a slippery substance, he-stepped thereon, and before he had fully alighted the car started suddenly, throwing him down and causing the injury complai...
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The action is brought for personal injuries-alleged to have resulted from a nuisance, i. e., the wrongful maintenance of electric *576wires in'a public street. Evidence offered by the defendant to prove authority to maintain .said) wires in thp streets was excluded-upon the trial on the' ground that such authority was not pleaded in the answer, and upon the defendant’s request a juror was withdraw...
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This is an appeal from an order of the County Court of Nassau county affirming a decision of the supervisor of the town of Hemp-stead adverse to a proposition for the incorporation o„f the village of Cedarhurst, made pursuant to sections 3 et seq. of the Village Law (Laws of 1897, chap. 414, as amd.).* The point is made that the order is not appealable to this court.
Sections 7 and 8 of the Villag...
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The action is against a municipal corporation for negligence. The plaintiff’s case is that when he was walking on an even, smooth, hard earthen sidewalk of the city at 11 o’clock of a February night he stumbled over the top of a sewer manhole and fell to his injury. The sewer was built under this sidewalk and the top of this manhole stood above the surface 6, 5 or 3 or 4 inches, by various estimat...
Views: 1
Page 1847
This is an accounting' by an executor. The executor contends that, the decree is wrong in that it charges him with moneys received upon the sale of an oyster lot, i. e,, the franchise to plant and to cultivate oysters in a certain specified territory. He asserts that his testator during his lifetime gave this lot to him. The testator and this executor were father and son and had been for a time in...
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This is an appeal by the defendant from a judgment of the Municipal Court for the penalty for the refusal to issue a transfer. On cross-examination the plaintiff testified that he rode to the transfer point “ with the sole object of simply traveling over the line to see what would be done ; ” and “ Q. If you had received a transfer, you had no business beyond the point at which your transfer was h...
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Page 1849
This (is an action to foreclose a- mechanic’s lien. The only refer-' ence in the notice of lien to the labor performed or the materials furnished was as-follows: “ 4. The labor performed .and -the mate; rials furnished' was the moving of a building from.'tlie north side oí Pacific Street and placing the same upon the premises hereinafter described and designated, and the agreed price thereof is Th...
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The allegation of. the. complaint that the defendant had an electric railroad through 39th street for the carrying of passengers having been admitted by the answer, the court below could not presume that some other railroad company also ran its cars over the defendant’s tracks. It was therefore not necessary for the plaintiff to show that the car that hurt him was the defendant’s. That fact, follo...
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The plaintiff made a requisition on the. defendant, who is the clerk .of Kings county, for a search against “Catherine Joyce, wife of Edward Joyce”, and this action is against' the said clerk for damages for negligence in omitting from his return a judgment against Cassie Joyce. . “ Cassie ” is said to be a diminution of Catherine, like Katie, but if.it be it is not gpnerally known or used as such...
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The plaintiff in supplying itself with water, made a contract for the construction of- a pipe line; 19,300- feet long.- Á section of it 2,200 feet long was to be laid in a deep tunnel, instead of a deep trench, by a modification of the contract in which the surety joined. The contractors abandoned the work after doing part of it, and this action is against their surety on its.bond for performance....
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This is a review by certiorari of the proceedings of the police commissioner of the city of New York and of his order finding the' relator guilty of conduct unbecoming-an officer and willful neglect of duty and " dismissing him 'from the- service. The relator was a sergeant and acting captain in charge of the “ vice squad,” so called, and concedédly directed two officers under his command to. asce...
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Woodward, Jenks, Hooker, Gaynor and Rich, JJ., concurred. The following is the opinion-delivered at Special Term: The parties occupied the relation of master and servant, and the plaintiff, the servant, sues the defendants, the masters, for damages resulting from their alleged negligence. On a '.demurrer he is entitled to have, the facts stated in the complaint taken as true, and all reasonable in...
Views: 0
The appellant’s brief is very misleadizig. The principal az-gument in it is that the court below erred in not cancelling the assess*600ment of the appellant’s land on the' motion therefor on the petition, writ and return, on the ground that.the petitioner being a, non-resident, he was nevertheless assessed in the resident list. But when we turn to the statement filed with the assessors on grievanc...
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It cannot be gainsaid that the jury could have found the foliow^ ir.g facts from the evidence, direct' and circumstantial. The defendant Was. incorporated “ especially to form and foster public sentiment by agitation and education against the liquor traffic, and to direct that sentiment toward the enactment and enforcement of laws restricting and suppressing the traffic in intoxicating liquors as ...
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Hirschberg, P. J., Hooker, Gaynor, Rich and Miller, JJ., concurred.
The following is the opinion delivered at Special Term.:
■ In the judgment foreclosing the mortgage described in the complaint a question Was reserved for further adjudication whether the lien of the judgment recovered by the defendant Louis R. Schenck, as executor of the will of Johanna Schenck,' deceased, against the mortgagor,...
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Plaintiff is an attorney at law and. brought' this action to recover for professional services rendered and for moneys expended in connection with the rendition of such services. The complaint alleged that between the 5th' day qf March-, 1901, and the 1st day of July, 1902,, plaintiff rendered services to the defendant upon her retainer and as her attorney, and counsel of a reasonable value of $2,...
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This action was brought to- foreclose a ■ purchase-money second mortgage on premises on Madison avenue near One Hundred and Fourteenth street in the city of New York. The mortgage -provided, among other things, that if default be-made in the payment, of any interest or installments or in any of the conditions of the said bond and mortgage upon a complaint filed or any other legal proceedings' comm...
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The action was begun by the service of-a summons .on'January 15, 1904, and the issue was joined on March 2, 1904. The case has never been noticed for trial and junior -issues having been reached and tried in their regular order, defendant moved to dismiss the complaint for lack of prosecution, as provided for by section 822 of the Code of Civil Procedure and rule 36 of the General Rules of Practic...
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The defendant was convicted of a misdemeanor and he appeals from the judgment of conviction and orders denying motions to set aside the verdict and for á new trial and in arrest of judgment,
*614The indictment under which the conviction, was obtained charged him with having violated sections 364, 438 and 438a of the Penal Code, in that on the 18th day of March, 1902, he knowingly and fraudulently ...
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On.-the 8th day of February, 1906, the .appellant'filed a-mechanic’s lien against the premises known as 523 Fifth avenue in the city of FFew York) owned by the respondent. On the .first day of June thereafter the respondent deposited the amount claimed by the lienor with the clerk óf the county-of FFew York,, pursuant to the provisions of section 19 of the Lien Law (Laws of 1897, chap. 418), and t...
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In the year 1904 a salesman óf the plaintiffs, who are copartners, bargained with defendant for the purchase of a carload of hops of the growth of 1905, to be delivered after January 1, 1906, at twenty-seven cents per pound. By mutual memoranda, signed by the plaintiffs and defendant, this bargain was confirmed. Upon the salesman’s return to plaintiffs’ place of business, he reported to the plaint...
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The action is to recover damages for the alienation of the affections ■ of plaintiff’s wife. The complaint by positive allegation alleges that without the knowledge or procurement of plaintiff, the defendant, contriving and intending to injure the plaintiff' and alienate the affections of his' wife,.at various times arid places debauched her and destroyed her affection for plaintiff,.to his great'...
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; The verified complaint alleges that the defendants are indebted for l-ent. of .premises occupied by them and belonging to plaintiffs. The .answer denies any knowledges or information sufficient'to form a belief as to' the ownership of the premises and the institution, and prosecution of summary proceedings to dispossess defendants, and denies absolutely- the other- allegations of the complaint, ...
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The action is to recover damages for personal injuries received in a-building belonging to the appealing defendant. An ex parte order was obtained requiring the plaintiff to submit to a physical examination with respect to his injuries, and that the deposition of the examining physician be taken thereon, and, in addition, that the plaintiff be examined concerning the facts and circumstances of the...
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This is an appeal from a judgment dismissing the complaint upon the trial. The action was brought by the assignee of one Joseph C. Richards. The complaint alleges that on or about the ,15th day of June, 1903, one Joseph C. Richards sold and delivered to the defendant, through one Robert S. Campbell, acting for and on *642behalf of said defendant, nine promissory notes secured by mortgage oil certa...
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The relator was an-ested charged with having operated an automobile in and along West Seventy-second street in the city and county of New York, the territory contiguous to said street being closely built up, at a rate of speed greater than one mile in six minutes, in violation of subdivision 1 of section 3 of chapter 538 of the Laws of 1904, and having been arraigned before a city magistrate he wa...
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. If it were proper to grant leave to sue the incompetent person it was competent for the court to make the order denying the motion to set aside the service from which an appeal has been taken, which was argued with this appeal, and to make the order allowing the service nunc pro tunc but we are of opinion that leave should hot have been granted. The action is brought to foreclose a mortgage for ...
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For the reasons assigned in the opinion in City Real Estate Co. v. MacFarland (121 App. Div. 652) on the appeal from the order granting leave, to sue the committee, the order denying; the motion to set aside the service upon the committee should have been granted. It follows that the Order denying the, motion to" vacate the service should' be reversed, with ten dollars costs and disbursements,, an...
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. The relator, Joseph F. Darling, was nominated for justice of the Municipal Court by a party convention. The certificate of his nomination was executed in the -form and manner prescribed by statute, but for some reason, probably the neglect of .the person charged with the duty, was not filed with the board of elections within the time fixed by law for the filing of certificates of nomination by p...
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There are two questions presented upon this appeal, one relating to the amount of the total capital stock, óf the company fiable to taxation under section 12 of the Tax Law (Laws of 1896, chap. 908), and the second relating to certain- deductions allowed by the Special Term from the amount of- such capital stock which the defendants claim should not have been deducted under section 6 of the Tax La...
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. This appellant made, a contract with V. J. Hedden & Sons, a copartnership, whereby the appellant “ agrees to sell and V. J. Hedden & Sbns agree to buy ” 25,000 barrels of cement at a price fixed. This contract was signed, “ The Vulcanite Portland' Cement Company. By.W. F. Vernon, Sales Agt. Accepted L. O. Hedden,” the latter being a member of the firm • of V, J. Hedden & Sons.. This contract was...
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While we do not wholly agree with the court below as to the grounds for the vacation of the order for plaintiff’s exainination, we think the order must be affirmed upon the ground that the original papers upon which the order for the examination was obtained, did not state that no previous application for the order had been made as required by rule 25 of the General Rules of Practice. That rule is...
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Ferdinand Sohaettler, ihe'testator, died leaving a widow and four children and -a last will and testament which was duly admitted to probate.. That will contained the following provision : “ I would hereby suggest to my family my earnest desire that they should • conduct together, if such" a-result can -be amicably arranged, my business of cabinet maker and builder at -the factory now owned by me ...
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On' the trial the plaintiff having obtained the verdict of the jury, ■the court, on motion of the defendant, set it aside ‘ and. ordered a new trial upon the grounds as recited in the order that the verdict was' contrary to law, contrary to the evidence, contrary to-the weight of evidence, and upon all. the grounds set forth'-in section 999 of the Code of Civil Procedure ; and from that order the ...
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Upon the papers presented I think the plaintiff was entitled to the particulars required to be furnished. The'order should be modified, however, by striking out the provision imposing a penalty for a failure to file the bill of particulars required by the order. " If a bill of particulars, as required should not be furnished, the plaintiff may then apply to the court for an order preventing the de...
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I do..not see that the appellants could on this motion take, advantage of the objection that all of the parties to the special proceeding were not before the court. In the affidavit upon which, the motion was made, Sherer swears that he did not know until a motion was made on behalf of Yoorhees to vacate the order of reference that Yoorhees had not been properly made a party to this proceeding. A ...
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The defendants Kipp and Feingold were tried together for petit larceny. The articles stolen were shoes of the value of twenty-three dollars that the. owner had intrusted to a boy in its employ to deliver to customers. ,Tliis boy testified that while in possession of the shoes at the corner of Grand.and Allen streets, in the city of New York, the defendant Feingold met' the boy and asked him to go ...
Views: 0
The facts .as found by the court below, upon- which its determination Was based, are as follows : First. That on October 9,. 1907,/.at a convention of the Republican party, duly called and held for such purpose, one Headley M. Greene was duly nominated as a candidate for the office of justice of the Municipal Court of the city of New York, borough of The Bronx, Second District, at the next' ensuin...
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The order of this court in this action directed that the plaintiffs deposit to the credit of the action with the chamberlain of the city of New York the sum of $1,808.15, together with interest thereon from the 12th' day of May, 1905. They having Jailed to comply with that order the defendants moved at Special Term to punish them for contempt; The order was granted and they were adjudged guilty of...
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(dissenting):
■ This is a proceeding to condemn certain lands under the waters of 'the Hudson river between Forty-second and Forty-third streets, *705and. in front of Twelfth avenue. The property sought to be acquired is owned by the Forty-second Street and Grand Street Ferry Railroad Company, and the entire award has been made to them. No question arises between the city of New York and the. rail...
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■ The -defendant made a contract with the' plaintiff’s ■ husband whereby the defendant rented to plaintiff’s husband a sewing' *709machine, valued at sixty dollars, for which lie agreed to pay five dollars on the delivery of the machine, which was accepted as payment for the first week’s rent, and then at the rate' of one dollar per week, payable in advance, on each Monday' thereafter for forty-th...
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We think that upon the evidence the case - was properly submitted to the jury, both as to the.defendant’s negligence and the *715deceased’s freedom from contributory negligence, and that no error was committed which would justify a reversal of the judgment. While upon the record we would have been, better satisfied if the verdict had been for the defendant and would not have interfered if the lear...
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The plaintiff received serious injuries which resulted in the amputation of her leg, by a collision between one of the trains upon the defendant’s road and ail automobile in which th'e plaintiff was a passenger on the 12th day of-June, 1904. The jury rendered a verdict in favor of the plaintiff for $35,000, and from the judgment entered upon that verdict the defendant appeals.
The serious question...
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This is a statutory action to recover damages for the death of plaintiff’s intestate, alleged to have been caused by the negligence of the-defendant in operating a car upon which he was a passenger, resulting in liis being thrown from the car while it was passing around a slight curve in Central Park on the track traversing. Central Park from Eighty-sixth, street. On the west to Eighty-fifth stree...
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This action was brought to recover damages for personal injuries sustained by plaintiff through the negligence of the defendant in starting a car on which she was a passenger, while she was in the act of alighting therefrom, and they consisted of a fracture of the larger bone at the wrist known as a Colies fracture, and a dislocation and fracture of the smaller bone, and some slight contusions of ...
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- The plaintiff appeals from a judgment dismissing her complaint upon the merits in an action' for the, specific performance of ah contract for the sale of real estate. . By the contract the defendant agreed to convey to tile plaintiff certain real property in. the city of New York for the price of $70,000, to be paid in part by the assumption, by .the .vendee .of *735“two first mortgages original...
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Plaintiff, who was a saleswoman in defendants’ employ, was injured by being hit on the head by an advertising sign which had been suspended from a balcony above her head. The frame had apparently been dislodged by a coemployee who was at the time engaged in repairing a cash trolley which had gotten out of order.
The only negligence charged against defendants is'that they had retained in their empl...
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The defendant has been convicted of murder in the second degree, for having caused the death of Gertie Penaude, an infant about two years of age. The defendant was a widower with three children and was living with, although not married to, Agnes Penaude, the mother of the deceased, who was an .illegitimate child of said Agnes by another man. The evidence tends to'show that the defendant was brutal...
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The action as originally commenced and as the.complaint stood until after the trial had been completed, sought the removal only of so much of the defendant’s steps on Fifth avenue and of the areaway on Thirty-fourth street as extended beyond the stoop line established by the ordinance of March 15, 1897. In so far as concerns these obstructions the question was settled-, so far as this court •is co...
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- The plaintiff" alleged as a cause of action that “ on of about February 20, 1903, the plaintiff .rendered services to and performed work for the defendant at his request in altering the heating apparatus in the house of defendant at White Plains, Flew York, and that the plaintiff then and there furnished the material necessary in the said work and incident thereto upon the like request,” and tha...
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This is an action to recover commissions alleged to have been earned by the plaintiff under an employment by the defendant to sell certain real estate on Long Island. The complaint alleges that under this employment plaintiff procured an offer of' $40,000 cash for said property “ from a person who was 'ready and willing to pay . said sum therefor, and plaintiff communicated said offer to the defen...
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The complaint in this action alleges that the plaintiff was employed by one Trask as his confidential real estate broker under an agreement, whereby the plaintiff was to receive as compensation for his services as such real estate broker ten per cent of the profits arising from the increase in value, if any, of all real property purchased by plaintiff as such real estate broker for said Trask when...
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This action was for a limited .divorce upon the ground of cruel and inhuman treatment. Answer was interposed by the defendant, in which he admitted the marriage and denied each and every other allegation of the complaint. The answer was not verified by the defendant, but by his attorney. The action came on for trial, and the defendant not appearing, final judgment was entered for the plaintiff on ...
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The action was for a limited divorce. The. defendant interposed an answer and the case coming on for tidal the defendant defaulted and final judgment was entered for the plaintiff granting a limited divorce and requiring the defendant to pay the sum of four dollars per week alimony. A certified copy of .this judgment was served on the . defendant on the 2d day of March, 1907. The defendant took no...
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While the court had power to refer the issues in this action to a referee for trial the parties had á right to a trial by jury unless it clearly appeared that such a trial was impracticable. As the court at Special Term has decided that such a trial was practicable and has, therefore, denied the motion for a reference, we do not think that upon these papers we should reverse that determination. Th...
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The will of Hannah Benrimo, which was dated April 13, 1891,. gave, devised and bequeathed one-half of the remainder of her estate to trustees- to pay over and apply the income' thereof to the use of her daughter, the defendant Emma Chase, during the term of her natural life, and upon her death “ to transfer, pay over, assign and convey the principal of said Trust estate,, to such person or persons...
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The order adjudging the appellant guilty of contempt was made on account of his failure to appear for examination at the time fixed by the order of the Special Term, the validity of which has been sustained on his appeal therefrom (121 App. Div. 761), argued and decided herewith. It is unnecessary, therefore, to consider further the objections to the validity of the order as they are considered an...
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The validity of the order is challenged upon the ground that an order to take the deposition of a party or witness pursuant to the provisions of article 1 of title 3 of chapter 9 of the Code of Civil *762Procedure cannot be made by the court, but only by a judge, but the order from which, the appeal is taken merely fixes a time for the examination to be' had pursuant to a former order duly made by...
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On the 6th day of April, .1906, the defendant nfis duly adjudged a bankrupt by the District Court of the United States for the Eastern District of New York, Pending the proceedings in bankruptcy, and on th.e 28th day of March, 1906, the usual restraining order was granted by the bankruptcy court enjoining the prosecution of actions against the defendant. On the 29th day of March, 1907, on the peti...
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This action was brought to have a deed, absolute on its face, executed on the Ith of July, 1891, declared to be a mortgage to secure the'sum of $500, to ascertain the amount due upon said mortgage' and to redeem. The court lias found that the conveyance was absolute, executed for a good and valuable consideration, and that the title to the property in fee simple was conveyed to the grantee. The pl...
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This action is brought to recover for the injuries sustained by the' plaintiff in consequence of the alleged negligence of . the defendant or its superintendent. The plaintiff was in the employ of the defendant and notice of the injury was given to the defendant under the Employers’ Liability Act (Laws of 1902, chap. 600).
The plaintiff was employed by the defendant as a skilled laborer and on Jan...
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This action was brought to recover the amount alleged to be due under a contract whereby the'.plaintiff, a foreign corporation, agreed to “furnish and provide all materials and labor for the installation of certain hydraulic elevators at the building No. 140 Nassau Street, in the City and County of New York, in the manner and under the conditions as prescribed and set forth ” in said Contract and ...
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This is an action to recover $25,000 as liquidated damages for breach of contract. On July 28,1905, the plaintiff and the defendant, theatrical managers, entered into an agreement in writing which by its terms was to commence on September 1, 1905, and continue for five years, with provisions for renewal for an additional five years. The contract is voluminous, covering some sixteen pages.of the pr...
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This is an appeal by the purchaser at a mortgage foreclosure sale from an order setting aside the sale and directing a resale of the premises. The judgment of foreclosure and sale entered on the 29th day of Hay, 1907, appointed a referee to sell and directed that the said referee sell the said premises in separate parcels. The description of the property contained in said judgment was general in i...
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The plaintiff executed a lease from defendant of certain premises in the city of New York, and upon such execution deposited with *798defendant the.sum of $2,400, to be liéld until the termination of' the lease, as security, for her compliance with the terms, conditions and covenants contained in.the lease. It was further agreed that if. plaintiff should vacate the'premises-during the'term, or sho...
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The plaintiff sued in the Municipal Court. Issue was joined on August 20, 1905, whereupon the plaintiff demanded a jury trial and paid to .the clerk of the court the jury fees prescribed by section 231 of the Municipal Court Act (Laws of 1902, chap. 580). The cause w,as thereupon adjourned by consent until October.24, 1905. Upon the adjourned day-the case was adjourned by the justice from time to ...
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(concurring): . I concur in the reversal of this judgment on the general ground that the notice given to' defendant was not sufficiently definite to comply with the Employers' Liability Act. That act, by its 2d section, requires service upon the employer of a notice stating the “ time, place and cause ’’ of the injury. The reason for requiring such notice is obvious. The Legislature was about exte...
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The' plaintiff, as executor of tiie estate of Rosalie T. Hastings, deceased, a stockholder in the defendant corporation, brings this action in equity to procure a judgment restraining the individual defendants from in any manner interfering with the assets or property of the defendant corporation, or disposing of the same; suspending them from the offices of directors, president, vice-president an...
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The New York and Long Island Railroad Company, a corporation organized in 1887 for the purpose of constructing and operating a railroad from Long Island City, in the county of Queens-, by a tunnel under the East river to New York city, in the county of New York, entered into a contract with the Degnon Contracting Company for the construction .of its tunnel. Said contractor in August, 1905, upon gi...
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The complaint is substantially similar to the complaint in Thalmann v. Capron Knitting Co. (100 App. Div. 247; affd., 182 N. Y. 525), where it was held to. state a cause of action. In the case of Thalmann v. Giles (116 App. Div. 437), upon a similar complaint, this court reversed a judgment entered upon a verdict directed by the court after a trial. It was there pointed out that in the Capron Knit...
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The defendant appeals .from a judgment entered on a verdict. The action is for damages for defendant’s refusal to fulfill a contract for the sale and delivery of merchandise. The defense is that no valid contract was entered into, because the alleged contract was for the sale of goods for the price of more than fifty dollars and no note or memorandum thereof was ever, as it is said, made in writin...
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The defendant appeals from an. interlocutory judgment overruling her demurrer to the complaint for general insufficiency. The' complaint alleges that the defendant is related to plaintiff by affinity, being the widow of a deceased brother ; that on Or prior to February 1, 1888, the plaintiff was the owner of ■ and was seized and possessed of certain real estate, with a dwelling house thereon, in t...
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The plaintiff is the proprietor of a minstrel troupe and on the 19th day of March, 1907j the defendant contracted by written agreement ,with him at a stipulated salary per week, to sing and play until the end of the season of 1909.' The defendant entered upon his employment and continued until September, 1907, when he abandoned his contract, claiming that his health was such that he could not cont...
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■The article published by defendant and set forth.in plaintiff’s complaint, to which defendant demurs, on the ground that it does not state facts sufficient to constitute a cause- of action, stated that the plaintiff appeared in a criminal court of Jersey City, in the State of New Jersey, upon a charge of non-support against, her husband, which proceeding was dismissed upon the statement of' the h...
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Appeal by defendant from a judgment for penalties for selling .adulterated milk, and from an order denying motion for new trial. *853There is no serious question as to the facts. The defendant is a milk dealer in the city óf New York, and has a creamery and two receiving stations in Delaware county. He collected the milk at his creamery, and had it shipped to New York, where he sold it in cans. It...
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The People appeal from an order granting a motion in arrest of judgment, The defendant was tried in the Court of General Ses*857sions and convicted of the crime of bribery. Subsequently the order appealed from was made arresting the judgment upon the ground, as recited in the order, that the facts stated in the indictment and proven at the trial do not constitute a crime. The question of law raise...
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The defendant appeals from a determination of the Appellate Term affirming a -judgment in plaintiff’s favor in the Municipal Court. ' The plaintiff had been a teacher in the public schools of the county, now. borough, of Bichmond, for some twenty-nine years prior to the incorporation of that county into the city of New York on January 1,-1898, and. at that date she had been employed continuously f...
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The defendant appeals from an order of the Appellate Term reversing an order of a justice of the Municipal Court setting aside the verdict and directing a new trial. Plaintiff, a machinist in defendant’s employ, was engaged in operating a lathe when a part called the back center broke and a splinter of steel pierced the plaintiff’s eye. -This back center had recently been tempered by a blacksmith,...
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It appears from the papers before us that the action is one to compel specific performance by the appellant of an agreement to convey certain property to her codefendant and the plaintiff. A former motion for a bill of particulars was granted and in response to if the plaintiff set forth that the defendant Harry Fischel had agreed with plaintiff that the latter' would sell to the said Harry Fische...
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The plaintiff, introduced by her husband, who was- a customer of defendant, on the 23d day of June, 1903, deposited in the defend ant’s bank the sum of $5,000..' On the seventeenth day of July following the husband presented a check of plaintiff, the body of which was all in his handwriting, payable to his Own order, for $4,900, which amount was paid to him thereon. The plaintiff admits that the s...
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The defendants consigned for cargo from Hamburg, Germany, to shipbrokers at New Orleans, a vessel owned by them.' Upon arriving at that port, upon authority' of the master, certain outfit-tings and port charges, including inland freight charges upon the cargo, were incurred in behalf .of the vessel through the ship: brokers to whom it was consigned.- Upon the vessel being loaded and ready for. sai...
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The learned counsel for the appellant contends that the plaintiff failed to show by competent proof that he has a cause of action against the defendants and that, therefore,,the order was improperly granted.- If the plaintiff knew, all of the facts essential to be alleged to properly present his cause of action, an examination to' enable Mm to frame the complaint would be unnecessary and should no...
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This is-an appeal by the defendant Joseph H. Sulzbacher from an order denying his motion, separately made, to vacate the order for the examination of liis codefendant, to enable plaintiff to frame a complaint against both of them: The' record is otherwise in all material respects the same as that presented on the appeal by- the defendant Anton W. Sulzbacher (121 App. Div. 878), argued and decided ...
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The appellant was in the employ of the firm of J. H. Sulzbacher & Co. as manager of their main office. This action is brought by the administrator of the deceased partner against Ulmann and the surviving partner to compel the former to account for alleged fraudulent acts and for secret profits alleged to have been made as such .manager and not accounted for to the firm. The action was commenced at...
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• This is an appeal by the defendant Joseph H. Sulzbaoher from an brder denying his motion, separately made, to vacate an order for the examination of his codefendant Ulmann, to enable plaintiff to frame a. complaint against both of them.. The record is otherwise in all material respects the same as that presented on the appeal by the defendant Ulmann (121 App. Div. 887), argued and decided herewi...
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Section 67 of the Code of Civil Procedure provides that “ An attorney and counselor who is guilty of any deceit,, malpractice, crime or misdemeanor * * * may be suspended from practice, or removed from office, by the Appellate Division of the Supreme Court.” The respondent has been found guilty by the referee of *2professional misconduct in verifying and tiling objections in. the Surrogate’s Court...
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Section 67 of the Code of Civil Procedure provides.: “ An attorney and counselor, * * * who is guilty of any fraud or deceit in proceedings by which he was admitted to practice as an attorney and counselor of the courts of record of this. State, may be suspended from practice, or removed from office, by the Appellate Division of the Supreme Court.” The respondent was admitted to the bar as having ...
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This appeal is from an order denying a motion to resettle a proposed case on appeal from a judgment-entered upon a verdict for the plaintiff in an action to recover damages for personal injuries. When the proposed case on appeal and amendments thereto were submitted to the trial judge for settlement, lie allowed eight of such amendments which consisted largely of speeches made by counsel and collo...
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The plaintiff seeks to hold-this.defendant.responsible.for injuries, sustained in falling down the- stairway, of a tenement house of •wihieh defendant, is. the. owner and .in which, the plaintiff,,at the time of the accident resided,. Tl\\e plaintiff occupied the entire. third floor of the building No. 262'West Ninteenth street, in the city of New York. In the rear of this bmlding was'the kitchen ...
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This is an action to recover upon a bond executed by Benjamin Apisdorf, a principal, and the defendant, as" surety, as a condition of issuing a liquor tax certificate upon the application of the principal. The condition of the bond was that “ If the said Liquor Tax Certificate applied for is given unto the said principal and the said principal will not, while the business' for which such Liquor Ta...
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The original complaint in this action was demurred to, which demurrer was sustained (53 Misc. Rep. 58). It was there alleged in relation to the contract that “ all the conditions above mentioned were fulfilled or were waived by the defendant,” and it was held by the Special Term that facts showing performance or a waiver must he alleged without qualification, and the demurrer was sustained, whereu...
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This motion was denied upon the ground that the relief here sought had been refused by this court, as a clause granting this portion of the motion was stricken from the order of the Appellate Division when the order vacating the warrant of attachnient was reversed. The learned court at Special Term was mistaken as to the reason why this clause was stricken from the. proposed order of this court. U...
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This is a statutory action to recover for the death-of Charles Kupfersmith. The decedent was a bricklayer by trade and entered the employ of the defendant about one o’clock in the afternoon on the 30th day of April, 1903, and within three hours thereafter received the injuries which resulted in Iris death. The defendant is a corporation and its business is that of a building contractor. It was eng...
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The plaintiffs and the defendant Korkemas are competitors in the business of manufacturing and selling razors. The defendant Ganim is manager of the business of the defendant Korkemas, and the defendant Berkele manufactures razors for the defendant Korkemas, which it is claimed are made in imitation of the plaintiffs’ trade marks and trade insignia. The action is'brought to enjoin the defendants f...
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This action, which was to charge the trustees of a corporation with the liability imposed by the act of incorporation, was com*42inenced in March, 1892. There had been an interlocutory judgment entered on January 13, 1899, which in April, 1903, was reversed by this court on the appeal of seven of the defendants, including the moving parties. (Bauer v. Parker, 82 App. Div. 289.) Since that time sev...
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The order appealed from is affirmed, with ten dollars costs and disbursements, for the reasons stated on the appeal in this action by the defendant George S. Hart et al. (122 App. Div. 41). Present — Patterson, P. J., Ingraham, McLaughlin, Houghton and Scott, JJ. Order affirmed, with ten dollars costs and disbursements....
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The complaint alleges that on the 25th of September, 1906, the plaintiff’s intestate, while in the employ of the defendant Brown & Fleming Contracting Company, was struck by a bucket owned and maintained by the New York Contracting Company, Pennsylvania Terminal, and sustained injuries which resulted in his death ; that the said injuries were caused by "the concurrent negligence and wrongful acts ...
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This was an action for slander, the charge being that defendant said, “ You,” meaning the plaintiff, “ are a dishonest man.” . “Ton,” meaning plaintiff, “ have wilfully set fire to your drug store at No. 9 Spring street, intending to defraud the insurance company of th'e amount of your insurancé.” The answer is a general denial, with two separate defenses, neither of which is a justification, and ...
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This order, so far as it allows the examination of one of the plaintiffs upon oral questions, violates, section 895 of the Code of Civil Procedure. It is there expressly provided that a commission to examine wholly or partly upon oral questions cannot be issued where the Witness to be examined is a party to the action, and is making the application on his own behalf, except by consent of the parti...
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This action is brought to compel the defendants to account for certain property received by them as trustees; to set aside certain unlawful and illegal conveyances of the trust property; to impress a trust upon the proceeds; to remove the defendants as executors and trustees under the will of the téstator and for other and further relief. The answer, which is very voluminous, set up several defens...
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The principal question involved in this appeal relates to the construction of the will of one Hugh Smith, who died on the 16th day of July, 1890, leaving a last will and testament, bearing date of April 10, 1884, the same having been duly probated in August, 1890. The deceased at the time of his death was the owner of the Murray Hill Hotel and property at Avenue “ B,” and this action for partition...
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This action was brought to recover damages for the breach of a contract. After issue had been joined the defendant obtained a commission to take, upon written interrogatories, the testimony of certain witnesses residing in London, England. The plaintiffs proposed certain cross-interrogatories which the court at Special Term refused to allow, and the plaintiffs appeal from the order.
Unless the int...
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Two questions are presented by this appeal: First. Did the Board of Railroad Commissioners have jurisdiction and authority to make the determination appealed from ? and, Second. If it had such jurisdiction, did it properly exercise its discretion in the premises ? The question of jurisdiction must depend upon the meaning and interpretation which should be given to sections 60 and 62 of the Railroa...
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The sole question presented by this appeal is': Does the complaint state facts sufficient to constitute a cause of action ? It is alleged: “ Third. That on or about the 14th day of December, 1905, at his place of business in the City of Buffalo, County of Erie, State of Hew York, the above-named defendant sold," offered for sale and exposed for sale an article of food named and designated as Tomat...
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Upon the merits and after a careful examination of the entire evidence we think the jury were justified in finding that the defendants were guilty of having asked'for, agreed to receive, and in fact did receive, a bribe which influenced their action as members of the board of supervisors of Erie county. We are also constrained to hold' that no ruling of the learned trial court as to the admission ...
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The complaint alleges the death of Susan Anson and the issue of letters of administration to the defendant. Further, that at a time stated the plaintiff “ went into the employ of the said Susan Anson at her request and continued in her employ and performed work, labor and services for her and at her request ” until a time alleged, and that the services were those of “ a laborer and farm hand; ” an...
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In October, 1888, the Casey Machine and Supply Company was. organized as a manufacturing corporation in pursuance to the. laws of the State of Hew Jersey. Its-capital stock was $100,000, but was made up largely of patented devices of uncertain value. The business, apparently, did not prove profitable, for in December, 1890, a bill was filed in the Chancery Court of Hew Jersey on behalf of its cred...
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The plaintiff, a locomotive engineer in the employ of the defendant, was injured February 5, 1904, while operating his engine on the defendant’s track between Buffalo and Niagara Falls, and claims that the defendant is responsible for the injuries sustained by him. The line of the defendant from Buffalo to Niagara Falls consists of two parallel tracks extending in a general northerly and southerly...
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In the spring of 1906 the defendant was erecting a structural steel.frame building on Genesee street in the city of Utica, and the plaintiff, an experienced structural steel worker, was in its employ. The frame was up tp the third story, and the third floor was covered with two-inch plank, except a strip about eight feet in width extend*91ing along the entire south side of the building. The plaint...
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In July, 1906, the State Commissioner of Excise recovered a judgment by default against the defendant White for penalties for the breach of the conditions of a bond given by him in pursuance *94of the provision's of the. Liquor Tax, Law. The defendant, the American Fidelity Company, was a surety on the bond, but no judgment was entered against it, although made a party defendant. It paid the amoun...
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The judgment and order should be affirmed, with costs. The action was brought for the conversion of $150 in money. The complaint alleged a delivery of the money by plaintiff to defendant for safe-keeping, with an agreement to keep safely and return on request, a request and demand and refusal, and, therefore, a wrongful and unlawful conversion. The answer denied' the allegations of the complaint a...
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The judgment and order should be affirmed, with costs.
The action was brought by thé assignee for the benefit of creditors of Elihu S. Briggs against the sheriff of Chautauqua county and his deputy to recover for the conversion of personal property. The plaintiff claimed title to the property under a chattel mortgage and a foreclosure sale thereunder. The defendants took and held the property unde...
Views: 1
The judgment should be affirmed, with costs.
The action was brought for relief in the nature of specific performance of a contract made by the Standard Railroad Signal Company, a New Jersey corporation, with the plaintiff’s assignor, a New York corporation. There seems to be no controversy here as to the facts. The making of the contract, the liability of the New Jersey corporation to perform the ...
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The judgment should be affirmed, with costs. The'action was brought to procure the will of Charles B. Willey to be adjudged invalid and that he died intestate as to his real and personal estate. The claim made by the' plaintiff was that the 2d clause of- the will was invalid because it created a trust, and as a part thereof illegally directed the accumulation of tlie-income from the real and perso...
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Page 2387
The judgment and order should be affirmed, with costs. The action was brought to recover damages to property by fire, caused by the negligence of the defendant. The property belonged to the Griffin Car Wheel Works, of Buffalo, 27. Y. The plaintiff had insured it, and after the occurrence of the fire they paid the loss and took an assignment of the claim for damages against the defendant. The claim...
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The judgment should be affirmed, with costs, with leave to . defendant to plead over on payment of the costs of the demurrer and of this appeal. The action is to charge the defendant with liability'under section 3247 of the Code of Civil Procedure, and the question here involved is whether such liability can be established and enforced by action or whether the sole remedy is by proceeding under th...
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The order should be reversed, with ten dollars costs and disbursements. The action, as shown by the complaint, was for nuisance, under section 1660 of the Code of Civil Procedure. Final judgment was demanded in accordance with section 1662 for damages and for the removal of the nuisance. No equitable relief was demanded. In such an action the parties have a right to a trial by jury, under subdivis...
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The judgment and order should be affirmed, with costs.
The action was brought to recover damages occasioned by the freezing of a quantity of apples while being transported from Alexander, N. Y., to Shreveport, La. The facts are not here controverted. The apples were substantially spoiled while in transit, by reason of the fault and negligence of the defendant.
The questions involved on. this appea...
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It appears that on' the 29th day of August, 1898, upon a petition presented to a justice of the Supreme Court, asking for the com*124mitment of the relator, an alleged insane person, to a State institution for the insane, an order was made which directed that, the relator be confined as an insane person at Brigham Hall at Canandaigua, N. Y., a State institution for the care of the insane. Thereaft...
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.While we are not disposed to disagree with the conclusions of the learned referee that the overflow of the lands in question, and the *130consequent injury thereto, was caused primarily by the improper and négligent alignment of the bridge piers and abutments, and that the defendant is legally liable, therefor, we think that his findings of the value of the lands and the amount of the damages can...
Views: 0
The moneys which the defendant was convicted of stealing were obtained from the county treasurer, the legal custodian thereof, by means of a warrant signed by the clerk of the board of supervisors, and countersigned by the chairman of the board and the defendant Neff, the county auditor, payable to the order of the defendant Oonover. The warrant was in due form, and signed and countersigned by the...
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The sole question presented upon this appeal is whether the policy in question was unconditionally surrendered to the defendant by the plaintiff or by its authority, pursuant to the notice of cancellation, thus waiving the plaintiff’s right to have the policy remain in-force until the company actually paid to the plaintiff the unearned portion of the premium theretofore paid by the insured. We thi...
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This controversy is over twenty sheep. The plaintiff made a conditional bill of sale of the sheep to the defendant, retaining the title until the purchase price of $172.25 was paid. On- the day that -the *159purchase price became due the plaintiff demanded the possession of the sheep, the purchase price not having been paid in full. There is no question .that the plaintiff was entitled to the poss...
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At the close of plaintiff’s evidence the court granted defendant’!» motion for a nonsuit, saying that “ the causes of the accident are purely speculative, and I cannot see where there is any evidence here by which we can rightfully infer, where an inference could be rightfully drawn, either that the decedent had been free from contributory negligence, or that the defendant had been negligent in an...
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The action in which the judgments referred to in the order were obtained was brought by plaintiffs, as receivers of the Bank of Commerce in Buffalo, against the respondents Gardner, Miller and the Gratwick executors, as defendants, with many others, to enforce' *168the statutory liability of the defendants as stockholders in said bank. Defendants by answer denied such. liability. After a protracte...
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The plaintiff is entitled to the relief demanded in the complaint, with costs. Section 15 of chapter 418 of the Laws of 1897 does not apply under the circumstances shown in this case. As between the defendant Moore and the city, the latter must succeed. • ■ During the year 1902 the city of Syracuse desired to improve the channel of Onondaga creek. On Atignst fourteenth it issued a notice to contra...
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. The judgment should be reversed and a new trial granted, with costs to the appellant to abide event. The action was brought to procure the cancellation of a tax deed and the record thereof. At the trial, before any evidence was given except the date of the commencement of the action, a motion was made by defendant for a dismissal of the complaint upon the pleadings, on the ground that the action...
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The judgment and order should be reversed and a new trial ordered, -with costs to the appellant to abide event. *186The action was brought to recover damages for personal injuries alleged to have been caused by the negligence of the defendant. The accident in which the injuries were received occurred in the taking down of an acid tower, twenty-four feet square, and originally one hundred and twent...
Views: 1
The action is brought under, the Employers’ Liability Act; the verdict was for $6,000. The claim of negligence is the negligence of one claimed to have been acting as the superintendent of uthe defendant. The defendant operates a steamboat line between New York and Troy. At the docks in Troy there is a passageway, which is called a gangway, from the boat to the freight rooms of the defendant. From...
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My conclusions in this- case,, briefly stated, áre as follows:
First. The defendant, the Oneonta and Mohawk Valley Railroad Company, is the only party interested in this appeal. These certificates were not paid by the receiver; they were not directed to be paid from the proceeds of the sale. The full amount of such proceeds went to the bondholders. The sale was made subject to the claims, if any, ...
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Briefs were submitted by the Attorney-General and by the Public Service Commission for the second district of the State.
This Commission has assumed to fix a maximum charge for gas and electricity within the village of Saratoga Springs. By this appeal their right so to do is challenged, upon the ground that such power is legislative and cannot be delegated to a commission. The question raised is ...
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It is entirely clear from the correspondence and the other proofs that at the time the agreement of December 5, 1903, was entered into there was a substantial and bona fide controversy between the. parties in which the defendants’ position was that they never ordered the plaintiff to ship to the Liverpool concern any lumber other than the pine squares, and consequently they were not liable to the ...
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The appellant recovered judgment in the Justice’s Court upon two causes of action, each for goods alleged to have been sold to the defendant. The County'Court reversed the judgment as to the first cause of action and the plaintiff appeals. The defense is covert-. lire. The plaintiff swore that he sold and delivered meats to the defendant at various times; that at different dates she made payments,...
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The answer .in alleging a conspiracy between this plaintiff and John M. Snyder to suffer judgment to be obtained against said Snyder to the end that this defendant, who was surety for said. Snyder upon his undertaking on appeal, might be forced to pay the amount of such undertaking, seems to set out a good defense to ah action brought to recover such amount. The liability of this defendant upon th...
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The proof shows that the plaintiff before working for the-defendant had been employed by one Thayer in 1905 to operate a like machine. Thayer, who was sworn for the plaintiff, testified that he used to show the -plaintiff how to operate it and cautioned him to be careful of his fingers and not to put them into the -machine; The plaintiff admitted that Thayer cautioned, him to be careful. Plaintiff...
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Where a tenant, having a lease for a year, holds over at the expiration of his term, the law implies an agreement on his part to hold for another year upon the terms of the lease, and the option is with the landlord to so regard it. (Haynes v. Aldrich, 133 N. Y. 287; Ackley v. Westervelt, 86 id. 448 ; Schuyler v. Smith, 51 id. 309.) That principle, however, is not seriously contended against by th...
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The order appealed from suspends for thirty days the provision in the judgment enjoining the defendant from burning soft coal'on its property for generating steam, such suspension being for the purpose of allowing the defendant to make the necessary changes in its plant in order to use hard coal for generating steam. The *258order was made after the judgment containing such injunction had been aff...
Views: 0
The court was asked to make the order in question under its power to make the complaint more definite and certain, but that power cannot properly be exercised except' where the allegations of. the pleading are so indefinite or uncertain that the precise 'meaning or application thereof is not apparent. (Code Civ. Proc. § 546 ; Dumar v. Witherbee, Sherman & Co., 88 App. Div. 181.) An inspection of t...
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Plaintiff has recovered an interlocutory judgment which restrains the defendant as follows, viz.: “ From the manufacture and sale of the two types of drill chucks known as Exhibits 3-A to 8-A inclusive and Exhibits 15—B, 16—B, 17—B, 19—B and 20—B in the manner and form and as stamped by the defendant according to the evidence in the case and from advertising the said two types of drill chucks in t...
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At the opening of the trial the defendant’s counsel moved that the complaint be dismissed, for the reason that it did not state facts sufficient. to constitute a cause of action. This in effect was the same as if the complaint had been demurred to on that ground. If, therefore, any cause of action is stated in the complaint the motion should have been denied. I agree that this complaint was .insuf...
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The defendant’s Troy car, north bound, and its local car, south bound, were to pass each other at a. switch, the Troy car to keep the straight track, the local car to take the side track. Late at *279night the Troy car arrived at-the switch ahead of the local car, and stood in part covering the point of the switch so that it obstructed the passage of the local car on to the side track, and a head-...
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In his complaint the plaintiff alleges the -negligence of the defendant in permitting a pool of oil to remain .upon the platform upon which its garnet machine stood, and its negligent failure to inspect said machine so as to prevent the.oil from dropping upon the platform, by reason of which the plaintiff slipped upon the oily surface of the platform, fell into the machine and was severely injured...
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In this action to enjoin defendant from obstructing a right of way across'liis premises, upon the trial the plaintiffs stated that they “ did not claim any public right of way, nor any personal, private right of way on behalf of the plaintiffs, but only for a right of way appurtenant to the plaintiffs’ lands.” Thereupon the court held the com. plaint insufficient, for the reason that it did not de...
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The respondents’ contention, that the writ of certiorari wag not granted and served within four months after the determination became final and binding, as required by section 2125 of the Code of Civil Procedure, is not well taken. The certificate sought to be reviewed was signed and dated July 15, 1901, at which time the Board of Railroad Commissioners notified the respective counsel that it had ...
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The appellant was a lessee of a part of' the premises condemned and his unexpired term of two years was valued by the commissioners at $120'. He was an owner within section 3358 of the Code of Civil Procedure, which defines an owner as including “ all persons having any estate, interest- or easement in the property to be taken or any lien, charge or incumbrance thereon.” If the owner is a resident...
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Plaintiff’s decedent, Thomas Wren, died in consequence of being burned by molten iron while working for the defendant in its foundry at Coxsackie, N. Y., on the evening of December 19, 1900. Negligence of the defendant in causing such in jury is alleged as the reason why the judgment which plaintiff has recovered herein should be sustained. The molten iron was poured into a cylindrical-shaped ladl...
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Plaintiff was injured while in the employ of' the defendant in the construction of an iron bridge for the New York, Ontario and Western Railroad Company at Sidney Center, Delaware county. •The. cause of the injury was the breaking of a chain. Heavy iron columns were by means of a derrick being unloaded'from a gondola car and lowered into a ravine which the bridge in process of construction was int...
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This is an action for negligence. Plaintiff was injured while operating a circular rip saw in the service of defendant. The saw revolved on an axis and its blade protruded through an aperture in a table and about an inch and a half above the surface thereof. The operator standing by this table pushed the boards which were being sawed over the surface of the table and against the saw. Plaintiff tes...
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No personal claim is made against the defendants, but plaintiff is seeking to recover out of the property, an amount which the demurrer admits to be unpaid on said contract of January 24, 1881. .. That the foregoing facts vest the plaintiff with a good cause of action for the relief sought admits of no doubt. Although Mrs. Warren did nbt receive the deed' under the foreclosure sale she became enti...
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Claimant is the owner of real estate on the westerly shore of Skaneateles lake. Said lake is used as a feeder for one of the canals of the State and a dam at the -mouth of the lake, has for many years been operated by the State for the purpose of regulating the flow of water into the canal. In his claim as filed claimant alleges that the officers or employees of the State caused gates in said dam ...
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•It is obvious from the foregoing statement that the appellant' only has such title to the farm as Mrs. Stover could convey after the death of her daughter, Mrs. Galusha, except as. to the undivided one-sixth interest hereafter discussed. Under the Devised Statutes (1 R. S. 752, § 6), which were revised in the Real Property Law (Laws of 1896, chap. 547, § 285), Mrs. Stover inherited from Mrs. Galu...
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One Beardsley contracted to 'make certain alterations and improvements in the theatre belonging to one Robinson as trustee, and Beardsley contracted with the Andrews Company to install for him the opera chairs in said theatre, and the defendant .Robinson guaranteed the performance of said contract on the part of said Beardsley. About the time for the delivery of the chairs, the Andrews Company ins...
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The following is the opinion delivered at Special Term: Application is made by William C. Duell, the relator above named, for an order granting a peremptory • writ of mandamus against Martin H. Glynn, as Comptroller of the State of Hew York, directing him to revoke the appointment of John D. Sullivan to the position of transfer tax assistant in the office of the surrogate of the county of Westches...
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The second trial of this case was held six years after the appellants had surrendered the plant to the respondent. So far as the evidence shows, it never returned or offered to return it to the appellants. On the contrary, it has ever since kept and used it, with knowledge of all its alleged defects. It undoubtedly had the *322legal right to do this and to rely upon the express warranty contained ...
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The action is for a partnership accounting. January 1, 1900, the three parties formed a copartnership for the purpose of carrying on a lumber business. They purchased and lumbered timber lands, manufactured the timber into lumber and sold it at wholesale and retail. Each agreed to contribute one-third of the capital and to share alike in the profits and losses. There are other details unnec*326ess...
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The plaintiff and Stephen I. Miller are the wife and son of John L. Miller, deceased. Upon the 17th day of August, 1903, they executed a chattel mortgage upon the boat in question to Lucretia Herrick to secure the payment of $5,000 loaned. Lucretia Herrick died the 29th of February, 1904, and Gouvenier M. Herrick was appointed her executor. In September, 1904, plaintiff and defendant Stephen I. Mi...
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The plaintiff might have lawfully joined in his complaint a cause of action for trespass and an equitable cause of action for injunction to prevent further trespass. Where the damage is substantial and judgment therefor is demanded in the complaint, it cannot be said that damage alleged is incidental only to the equity action. It is asserted by the trial judge, in his opinion, that the cause of. a...
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Libel has been defined as a malicious defamation, expressed either in printing or writing, tending to blacken the reputation of one who is alive, and to expose him to "public hatred, contempt or ridicule. We are unable to find any warrant in the. article published for the inference by the jury that the plain tiff was charged with being a prostitute; Any inference that she was a prostitute that may...
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The defendant is a- domestic corporation, organized to carry on business in Rochester, N. Y., as a department store. It was incorporated on November 14,1906 ; its capital stock is $2,000,000. The entire amount of stock was subscribed and paid in on the- 1st of April, 1907. The capital having been paid in full, the company issued to the subscribers certificates for the amounts to which they were en...
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Whether or not the court might have made ah order opening defendant’s default without terms, no such order has been made. The order in fact made required the plaintiff to accept the defend" ant’s answer, thus assuming a right to serve the same when it was tendéred. This assumption, we think, was erroneously made. At the Trial Term when the trial justice made the oral order authorizing the defendan...
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Plaintiffs’ complaint was dismissed at the opening of the trial, upon the ground that a cause of action was not therein alleged. The sole question, then for our determination is as to the correctness of this holding. In the complaint it is alleged that about, the 5th day of May, 1890, for the purpose of securing the sum of $500 loaned to thorn by Mary W. Griffin, plaintiffs’ testatrix, Starling Wa...
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Page 2434
The claim of the respondents is that notwithstanding every-contract by which the decedent was employed as an agent by the insurance companies to solicit insurance and collect premiums -had terminated some time before his death, and he could, therefore, claim no benefit or advantage from the business done or the way in which it had been conducted, the deceased left the good will of an insurance bus...
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The paper of January 6,1902, standing by'itself lacks mutuality in that the plaintiff did not bind himself to make any sales of cement and hence constitutes no valid contract binding on either party. (Chicago & Great Eastern R. Co. v. Dane, 43 N. Y. 240 ; Commercial Wood & Cement Co. v. Northampton Portland Cement Co., 115 App. Div. 388 ; Rafolovitz v. American Tobacco Co., 73 Hun, 87.) Respondent...
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After the general election held in the county,of ■ Chemung on the 6tli day of November, 1906, the county board of canvassers canvassed the statements or returns of the board of inspectors of election, and 1 determined . that the defendant, Thomas J. Winter-mute, the Republican candidate for the office of county treasurer, had received 4,720 votes and that the relator, John H. Deister, the Democrat...
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The appeal is from' that part of the decree determining the amount of commissions and the allowance to the counsel for the temporary administrators.
It is urged -that the temporary administrators were not entitled to the commissions allowed.
*355First. Upon the value of certain shares of stock which were not taken into their possession.
Second. Upon a book account due to the decedent.
Third. Upon ...
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*358The following is the opinion delivered at Special Term:
In December, 1905, an action was pending between the Knickerbocker Trust Company, as plaintiff, and the Oneonta, Cooperstown and Richfield Springs Railway Company and others, as defendants, to foreclose a mortgage upon the property of the defendant railway company. The defendants Lounsbury herein were also defendants in that action, and ...
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It is undisputed that the order of the seventeenth of March and the papers upon which it was granted, including the exhibits filed as therein directed, were referred to upon the argument and presented to the court by the defendant’s counsel in opposition to the motion, and it appears by the affidavit of the plaintiff’s counsel, used and filed in the motion for resettlement, that upon the argument ...
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The record contains exceptions which we think require a reversal of the judgment. The defendant should have been permitted to show that the plaintiff was working at his own trade, independently of any employment by the defendant’s testator, during the time that he claims to have been employed by said testator. The defendant should also have been permitted to show that after the rendition of the se...
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The action is by a property owner for an injunction against the working of an ash-receiving station. It came to trial in April, 1904, *366bat the trial ivas adjourned' until November 16,1904, under a promise of improvements to obviate the grievances. .Oh that day the trial began and was continued 'until December 2, 1904. -Meanwhile improvements had been niadeat an expense of $3,900. • The Special ...
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This appeal is from an order of the Special Term that allows a supplemental answer, in an action to restrain unfair competition in the manufacture and sale of a night lamp and to recover profits from the sales thereof. Issue was joined on July 25, 1907, whereupon the plaintiff demurred to the answer. It does not appear that the issue of that demurrer has been tried. The defendants- would plead by ...
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The plaintiff has recovered a judgment under the Employers’ Liability Act. (Laws of 1902, chap. 600.) His version of the casualty is *376as follows: He had moved a machine from one-place to another on th'e floor in the defendant’s shop. The machine was worked by a belt attached to shafting. It was necessary to join the belt, which had been cut, so as to adjust' it to the machine in its changed pos...
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It appears that the plaintiff is a domestic municipal corporation ; that the defendants are copartners doing business as bankers and dealers in investments' and securities; that in July, 1907, the defendants, in response to an advertisement of the plaintiff, promulgated in accordance with the provisions of section 129 of the Village Law (Laws of 1897, chap. 414), inviting sealed proposals for the ...
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On January 30,1906, Nicholas Clements as vendor agreed to sell to Florence C. Smith, the assignor of the defendant Colyer, and Smith agreed to buy a certain lot of .land with improvements thereon, which was described in the written contract as being on the southerly side of Hempstead turnpike west of Lynbrook road “ and being bounded on the East by land now or late of Kinsey, on the South by lands...
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This action was commenced on March 11, 1905, in the Kings County Court subsequent to the enactment of subdivision 5 of sec tion 3228 of the Code of Civil Procedure.* The trial resulted in a verdict of $50 for the plaintiff, and judgment was entered by the plaintiff in his favor and against the defendant for $50, .the amount *384of the verdict, together with $128.58 costs. On April 13,1907, the cos...
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The complaint is for damages for negligence. On motion of the plaintiff the court at Special.Term has- made an order permitting another party to be brought in as a defendant by amendment of the summons and complaint on the ground, that it is a joint tort feasor. The original defendants and the new defendant appeal. It is claimed , that there is no power to bring in an additional defendant on the p...
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The complaint alleges and the learned trial judge finds that the defendant committed adultery in his own house in August, 1904, and in April, 1905.. The woman named was the servant of the household, which consisted of the plaintiff and the defendant and their two grown children, son and daughter. It is not permissible-to make a finding of adultery on such evidence as this case presents. “ Charges ...
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When this case was first disposed of by us I wrote': “If 280 days be taken as the period of -gestation, there were within it 39 days of possible sexual access of the appellant’s parents before his' father went to the hospital, and if 30.0 days be taken as the period allowed from the latest opportunity of, access' to delivery, there were ,59 ”. In' this-1 made thedarge. error of 47 days. I should. ...
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The controlling facts come down to just this: The Syndicate Petroleum Company had a contract with Spellacy & McCay, by which the latter undertook to bore an oil well for it 1,000 feet deep, unless oil in paying quantities should be. obtained at a lesser depth. To get the funds to pay for the work as it progressed the said comjpany entered into a contract with the defendants whereby the latter agre...
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On. the contract day the plaintiff refused to take title on 'the-grounds (1) that there was an existing violation of the tenement house act in respect of the property, which- was a tenement house, viz., in that the water closets were in the -yard instead' of in the house, as required by the said act, and (2) that in an action entitled the Tenement House Department of the City of New York against H...
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Acting under the requirements of section 3 of chapter 114 of the Laws of 1883, the registrar of arrears of the city of Brooklyn, on March 25, 1885, sold certain real property situate therein for unpaid taxes, or assessments, to the plaintiffs’ testator, and issued to him.-a certificate of sale. The premises so sold were assessed to one James O’Brien, who,, prior to such sale, died the owner in fee...
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This action was brought to recover $150 balance claimed to be due under a clause in a brokerage agreement providing that “ One hundred and fifty ($150) dollars additional, when said Schlosberg shall reach the first tier of beams in process of construction of houses upon said eight lots.” Plaintiff sold the lots to Schlosberg, who agreed to erect houses thereon, and was paid $50 for his commission,...
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Page 2454
This action is for damages alleged to have been sustained in consequence of plaintiff falling into an open manhole in Greene avenue in the borough of Brooklyn, the accident occurring under the following circumstances: An asphalt pavement was being laid in said street by the defendant company under a contract with the defendant city. Greene avenue runs east from Bushwick avenue. On the east side of...
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This is an appeal from a judgment entered upon the report of a referee in an action to recover damages for a personal injury. The learned referee dismissed the complaint upon the ground that the town of Eishkill was solely liable for the result of the dangerous conditions which were found to be the cause of plaintiff’s injury. The defendant was incorporated as a village in 1886. Before that time a...
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This is an action for broker’s commissions. No contract was entered into by the principals, and the only question involved is whether the plaintiff showed that he produced a purchaser able to purchase on the defendant’s terms. One of the terms was a cash payment of $25,000. The proposed purchaser testified that he had in his possession funds sufficient to cany out the contract, but his cross-exami...
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This action was brought to recover the sum ■ of seventy-two dollars, with interest, upon four promissory notes given by the defendant to the plaintiff. Upon the trial the plaintiff. produced the notes and certificate of protest, and proved that there was due upon them' with interest and protest fees, the sum of eighty-five dollars and thirty-three cents. This amount was. hot controverted, by * the...
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The pleadings were oral, the complaint being for labor and materials furnished; the answer, a general denial.
The plaintiff’s complaint was based on two causes of action, one to recover a balance of seventy dollars under a contract subsequently assigned to the plaintiff, made by the defendants and one Jacob Aaronson for the performance, at the consideration of one hundred and sixty-five dollars, o...
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It is evident that there was a false or immaterial issue intruded in this case, and the learned trial court, in a memorandum, gives reasons why the verdict of the jury was "set aside, which, in our opinion, justify the action. The action was brought to recover commissions alleged to have been earned by the plaintiff in securing a purchaser, ready, willing and able to purchase certain real estate i...
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This proceeding.was brought pursuant to the provisions of title 4 of chapter 17 of the charter of the city of Mew York for the pm> *417pose of acquiring title to land required for the purpose of opening Avenue D from Eogers avenue to East Thirty-fourth street, as laid down in the commissioners’ map of the city of New York. Avenue D as laid down is located almost exactly in the middle of a long,...
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This is an- appeal by the Comptroller of the State of New York from an order of the surrogate of Nassau county affirming on appeal to him a prior order, which approved the report of appraisal upon the property, passing under the will of Sidney Dillon Ripley, decedent. Sidney Dillon, the grandfather of the decedent, died in 1892, leaving a will by which he created a trust for the benefit of his dau...
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The defendant is engaged in manufacturing a wood pulp tiling. The wood pulp is delivered at its factory in sheets, and it is necessary in the process of manufacture to slit or shred this pulp, that it may be reduced to a pasty substance and molded. The plaintiff was employed as a handy man about the factory, and had been engaged in operating a machine known as a beater—a machine that took the pulp...
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This case comes on appeal for the third time. On the first trial a verdict was awarded the plaintiff in the sum of $10,000. The judgment entered thereon was reversed on the ground that the plaintiff had assumed the,risk, and a new trial was ordered. (95 App. Div. 628.)
On the second trial the jury gave the plaintiff a verdict for $5,000; ■the complaint- was dismissed after the verdict was rendered...
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This action is to foreclose a lien on a piano. The appeal is by the plaintiff from a judgment dismissing the complaint upon the merits.. The ease was before this court on an appeal from a judgment dismissing the complaint at the first trial ( Wuertz v. Braun, 113 App. Div. 459), and we then held that the plaintiff made out a ¡prima faeie case and should not have been dismissed. The defendant Irma ...
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The plaintiff and certain defendants appeal from a judgment dismissing the plaintiff’s complaint. The action is- brought under section 1537 of the Code of Civil.Procedure for the partition of certain real property owned by the deceased at the time of his death. The 4th paragraph of his will, which purports to create a trust, is attacked by the plaintiff, and the case turns upon the question *436wh...
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The action is brought upon an assigned claim to recover brokerage commissions in the sum of $420. The plaintiff alleges that in the month of' December, 1905, one Julius Weiss, a real estate broker, hearing that the property No. 341 East Sixth street, in the borough of Manhattan, city of New York, was for sale for the sum of $42,000, saw a certain Mr. Popper, told him of the house and took him to s...
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The testator’s will was probated by the- surrogate of Kings county in the year 1886. By the 3d clause of the will a trust was created. It reads as follows: “ Third. I give, devise and bequeath all the rest, residue and remainder of my property, real and personal and mixed of what nature and kind soever and whatever the same may be at the time of my death to my friend Lewis S. Goebel and to my brot...
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This appeal is taken from an order of the Special Term vacating an order of Mr. Justice Abbott settling interrogatories annexed to a deposition to be taken without the State. ■ The appellant contends that in granting this order the learned justice at Special Term passed in review upon the action of another justice, and that his action in sustaining the objections interposed by the plaintiff to def...
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This is an appeal from an order made by the surrogate of Kings county denying the petition of the appellant who sought to compel the executor of the estate of Haney Anderson, deceased, to render and settle his account. The petitioner is a legatee named in the last will and testament of said deceased and alleges in his petition that his legacy is due and unpaid and that Lott has never rendered an a...
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The facts stated by the appellant are substantially as follows: Appellant recovered judgment for over' $5,000 against the respondent Abraham Quackenbush, and also two other judgments for costs on appeal to the Appellate Division and the Court of Appeals. Subsequently the respondent went into bankruptcy and his application for discharge was opposed by the appellant and refused by the United States ...
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This is an appeal from an ordér denying a motion to dismiss a writ of certiorari issued to review an assessment of the relator’s real, property made by the assessors of the village of Peekskill, The motion was made on the ground that the petition for the writ was not presented within fifteen days after the completion and .filing of the assessment roll and the posting and publication of notice ther...
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This action is brought in the Supreme Court to compel the defendant Edwin B. Meeks to ■ account as executor and testamentary trustee, to pay over • to the plaintiff such sums as shall be *462found to be due, and to set aside certain decrees, made on intermediate accountings in Surrogate’s Court. The plaintiff’s testator was the son of said defendant’s testator, and was given the income for life on...
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Tins appeal is from a judgment rendered-against the defendant in an action for damages for failure to deliver merchandise delivered to it at Long Island City for shipment to Pittsburg, Penn, The only evidence of non-delivery consists of testimony of the plaintiff respecting a conversation had with the defendant’s freight agent in charge of the office where the merchandise was received by the defen...
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Page 2474
The defendant appeals from a judgment of the Municipal Court,rendered- upon- .its default, and asserts that the--plaintiff failed to show personal service of the summons upon it. The only proof of service was a written admission'signed by " the Superintendent of . Insurance of service “ of process . * * * in behalf of Janies J. McKeever as admr.,” etc. But this alleged admission" of'service was fa...
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The defendant appeals from an order denying its application for the discontinuance of the action in which the plaintiff joined. The respondent claims that the appeal should be dismissed for the reason that, the order appealed from was ma,de on January twenty-fifth, and that after the notice of appeal was served said order was amended by an order made on March eleventh so as to contain certain reci...
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This case is like the case of Kelly v. New York City Railway Co. (122 App. Div. 467), decided herewith, except that the plaintiff is an infant and that the clerk of the attorney of record for the plaintiff procured her to sign a writing authorizing said attorney to bring suit. She says that site did not understand the contents of the paper signed by her, and that she wishes the action discontinued...
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This action is .brought to foreclose a mechanic’s lien and to set aside a conveyance of the real property involved, which the complaint alleges was made by the defendant Finkelstein to her brother, the defendant Flyer, with intent to defraud the plaintiff. Tlié complaint was dismissed for an alleged defect in the notice of lien. The only question presented on this appeal is whether the notice of l...
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This is a suit by the purchaser for specific performance of a contract to sell real estate. The complaint alleges that the defendants are man and wife, and that they are the owners in fee oí the land in question, but whether by the entireties or as tenants in common *474is not alleged. The answer dqes not deny this allegation. The complaint alleges that the defendants' made a written contract of s...
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The first charter of the new city of New York (passed in 1897) divided the city into two divisions for Magistrates’ courts, the first comprising- the' boroughs of Manhattan and the Bronx and the second the remaining three boroughs of Brooklyn, Queens and Richmond (§ 1390 et seq.). It provided for the appointment of the magistrates by the mayor, and for the appointment of police clerks in each divi...
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The plaintiff fell on the floor, about two feet from the projecting base of a stone drinking fountain in a large open space in the Centre of the defendants’ store. There were bowls and faucets at the top of the fountain, and'drinking cups chained there. It is impossible-*481to make out from the testimony of the plaintiff and her daughter whether they say she slipped on water or on grease or some s...
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The complaint was dismissed on the opening on the ground, it is • said, that the defendant is not liable for the negligent acts or omissions of its employes — that the rule of respondeat superior does not apply to it. The case stated by counsel was that the plaintiff was employed by the defendant as a cleaner in a. school house under the janitor thereof; that the janitor gave him a pail of mixture...
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The plaintiff did not make out a case, and the motion to dismiss should have been granted. The allegations of the complaint may welléxcite credulity,'which is all the more reason why care should have been taken to see that evidence of them was given before they should be decided to be true. The complaint is (without regard to verbiage and immaterial allegations) that the plaintiff agreed to delive...
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The complaint should have been dismissed. The plaintiff kept a drug store. His landlord had the glass window front of the store insured by the defendant. It was broken by a bat or ball on the outside. Instead of paying the landlord the amount of the damage done to it, the defendant agreed with him to replace the pane, but, *488it is claimed, neglected to keep such agreement by doing the repairs, p...
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The action is for the statute penalty of $50 prescribed by section 104 of the Railroad Law for refusing -a transfer to a passenger. The plaintiff was- at the corner of Lexington avenue and 102nd. street, Manhattan borough, and wanted .to go to the corner of Columbus avenue and 93rd street. These two points are on opposite sides of Central Park, the one on the East and the other "on the West side. ...
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The plaintiff appeals- from a judgment dismissing his complaint at the close of his evidence on a trial in the Municipal Court. The defendant employed plaintiff to procure a purchaser for real property owned by her in Brooklyn for ¿9,200, agreeing -to pay him for his services $100.' -Subsequently she reduced the sale price to' $9,100, the same commission to be paid if a purchaser was procured. *49...
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This is a submitted controversy. Patrick Connolly died December' 18, 1898, leaving a last will and testament made October 27, 1897, containing, among others, the following provisions: “ Third. I give devise bequeath all the rest, residue and remainder of my estate to my beloved wife Catharine for and during her natural life. Fourth. On the decease of my wife Catharine I give, bequeath and devise m...
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The following is the opinion delivered at Special Term: The plaintiff, a taxpayer of the county of Nassau, has brought this action against the three defendants, who composed the board of Supervisors of that county, to recover from them the amount of certain items in the several bills of said defendants for services and disbursements as supervisors, which it is alleged were collusively audited by t...
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The attitude of the appellant respecting the subject-matter of ’his claim is unmistakably indicated in the contention of his counsel that such claim is not based upon a contract for commissions, but upon the possession of the “ interim certificates ” which entitled him, irrespective of antecedent relations, to the possession of the bonds called for by them; or in other words whatever may have been...
Views: 0
The defendant, impleaded with one James H. Brown, demurred to the complaint in this action on the ground that it does not state *506facts sufficient to constitute a cause of action. The demurrer was ' overruled, and from the interlocutory judgment entered upon the decision of the. court at Special Term this appeal is taken.
It is alleged in the complaint that the plaintiff, who is a stockholder of...
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The defendant Egan was the owner of two lots of land with the buildings thereon, known as Mos. 65 and 67 East Eighth street, in the borough of Manhattan, in the city of Mew York. The plaintiffs, on April 1, 1904, hired from the defendant Egan the third loft of the building Mo. 65 East Eighth street, for a period expiring January 1, 1905, at a monthly rental of fifty dollars, and occupied the same ...
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This judgment must be reversed for the reason that the verdict, of the jury in favor of the plaintiff was against the weight of evidence. The plaintiff was employed to work at a machine in the factory of the defendant, and on the date charged in the complaint, while so at work, her hair was caught in the machinery and she sustained injuries' to the scalp of a more or less serious nature. The theor...
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This action was brought to' recover the damages sustained by the next of kin of the plaintiff’s intestate by reason of his death. The complaint alleges "that the deceased was in the employ of the defendant, who was in possession and control of a certain building known'as BTo. 141 West Thirty-eighth street, together with the elevator therein and all other parts of said building; that on the 20th da...
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Michael O’Sullivan was admitted to practice as an attorney and counselor at law in July, 1895. Sometime after his admission it appears that he was appointed a deputy fire marshal in the city of New York, and in the performance of his duties he made charges against one Adolph Meyer for setting fire to a tenement house in the city of New York. Meyer was indicted by the grand jury, p>leaded guilty...
Views: 0
The defendant agreed to sell to the plaintiff certain real property the title to which the plaintiff 'refused- to accept upon the ground that the defendant could not give a marketable title. ' This action was then brought for a specific performance of the contract. The court found that the defendant had a marketable title and dismissed’ the complaint. The property was owned by one Elihu Phinney, w...
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This action, which was brought to annul the marriage between plaintiff and defendant, was at issue and came on -for trial at Special Term, when the defendant failed to appear, whereupon the court took the evidence offered by the plaintiff, filed a decision, finding the facts as alleged by the plaintiff, and directing the entry of a judgment declaring the marriage contract between plaintiff and def...
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This action was commenced by two plaintiffs on behalf of themselves and all other persons who were creditors of the defendant John W. Kingston, who had furnished labor or material towards the erection of a building upon, certain premises described in the complaint. The answer was served on the 17th of January, 1907, and thereafter, and on the 28th day of March, 1907, the plaintiff Hawkes. died. Af...
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This complaint alleges that the plaintiff, on the 21st of April, 1904, entered into an agreement with one Max Hart, a copy of which is annexed to the complaint. , By this agreement the plaintiff agreed to sell and convey and Max Hart agreed to purchase, a certain piece of real property located in the city of Hew York for the sum of $21,000, $5,000 in cash and the balance by taking said property su...
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The plaintiff’s intestate died as the result of injuries sustained by .falling down an elevator shaft on the premises of defendant in the city of New York. The .defendant was the proprietor of a hotel in which there was a saloon on the ground floor. On Saturday, the 17th of March, 1906, between eleven and twelve o’clock at night, the deceased with a companion went to this saloon; after staying the...
Views: 0
The complaint alleges in substance that on or about the 15th day of October, 1901, the defendant, William F. King, executed and delivered his certain bond in the penal sum of $100,000 with tlie *557condition thereunder written that if said William F. Ring should well and truly pay or cause to be paid the just and full sum of $50,000 on the 15th day of November, 1904, and the interest thereon to be...
Views: 0
This is a motion for a new trial on exceptions directed to be heard in the first instance at the Appellate Division. The complaint was dismissed upon the trial at the close of the plaintiff’s case. The action is brought by the plaintiff, as assignee of the interests of J. Ernest Smith, S. Rodman Smith and Edward T.- Canby, against the defendants to recover the amount expended by the assignors in a...
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This is an appeal from a judgment entered upon a verdict for $3,000 in an administrator’s action to recover damages for the death of one Katharine Schmidt, alleged to have .been caused by the defendant’s negligence. The accident occurred at One Hundred and Sixty-sixth street and the Boston Post road on July 2, 1904, about eight-thirty in the- evening, while it was still light. The plaintiff’s test...
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On December 28, 1906, Hon. Robert C. Cornell, one of the city magistrates of the city of Yew York, was sitting in the First District Magistrate’s Court, and there was pending before him a complaint or information charging one Leavelle with the crime of assault. The magistrate, after an examination, made an order holding Leavelle for trial and fixed the amount of bail. Thereafter the appellant, Dav...
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This is a statutory action* to recover for the death of Israel Brauner, *573alleged to have been caiised by the negligence of the defendant. It is alleged in the complaint, as amended, that on the 10th day of July, 1899, the decedent was lawfully driving a wagon, drawn by two horses, northerly along Third avenue, in the borough of Manhattan, N. Y., and while between Ninety-seventh and Ninety-eight...
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The action was brought to have the will of Edward M. Brown, deceased, judicially construed. Two questions only are presented by the appellant for review. The able opinion of the learned referee disposes of all others raised on the trial satisfactorily to the parties. 'The first is whether the' profits on capital left invested in the business of a fruit auction copartnership firm, of which decedent...
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This is a suit in equity to have a final order in summary proceeds ings declared null and void and to enjoin its use, particularly as evidence of the existence of the relationship of landlord and tenant between defendant and plaintiff. It appears that on the 4th day of April, 1906, the defendant presented a duly verified petition to a justice of the peace of the town of Huntington, county of Suffo...
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The complaint alleges that the defendant, Pugh & Co., was on ¡November 28, 1902, and for' some time prior thereto had been engaged in erecting a building at or near 32 West^ Sixty-fourth street in the city of ¡New York, and had general charge, management and control of the said building and the erection thereof and the work thereon; that said building was over five stories in height and was being ...
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This action was brought to recover damages for the death of plaintiff’s intestate, alleged to have been caused by the negligence of the defendant. There is little or no dispute as to the material facts involved. The plaintiff’s intestate, an infant about fourteen months old, was being wheeled in a baby carriage along the easterly sidewalk on West End avenue, between Sixty-ninth and Seventieth stre...
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The plaintiff, a lad nearly fifteen years of age, was employed at a machine in defendant’s factory. The machine was surrounded on the sides and back by a platform about nine inches from the floor, and as the operator faced the machine the platform on his left was about a foot wide, and' on his right about fotir or five feet wide. Around the platform was a railing made of pipe, the upper piece bein...
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James Grant died on the 22d of April, 1895, leaving a last will and testament, which, was on the 2-9th of November of the same year admitted to probate and letters testamentary issued to the execu*603tors therein named. A contest was had over the admission of the will to probate, pending which temporary letters of administration were issued to Frederic Grant, a brother of the intestate, he having ...
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Sarah Waters died on the 20th of May, 1905, leaving a last will and testament, executed a little over two years before her death, which was, on the. twenty-second of June following,' admitted to probate and letters testamentary issued to the executors therein *606named, 'the accounting parties in this proceeding. Mrs. Wáters by her will first directed that her debts and funeral expenses be paid, a...
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This action was brought to recover certain advances alleged to have been made by plaintiff to defendant in excess of commissions to which he and his sub-agents were entitled and also upon a separate cause of action for money loaned. After the action had been commenced, but before issue was joined-, the defendant moved for a bill of particulars. The affidavit upon which the motion was principally b...
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This action was brought to foreclose a mechanic’s lien upon certain real estate in the city of Hew' York, of which the defendant Astor is the owner. He had a contract with the appellant for the performance of certain work on a building erected upon the real estate- The plaintiff was a sub-contractor under the appellant. At the time of the- filing of the notice of lien and of the commencement of th...
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This appeal is from an order denying a motion for leave to serve a supplemental answer, and was argued with the appeal from the order directing Sloane to pay into court a certain sum. of money. ( Van Kannel Revolving Door Co. v. Sloane, No. 1, 122 App. Div. 610.)
The facts involved on both appeals are substantially the same After the reversal of the judgment in so far as the same related to the de...
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The plaintiff brought an action in the Municipal Court- of the city of Mew York against the defendant to recover the sum of $500. Issue was joined but when the action came on for trial plaintiff did not appear and the complaint was dismissed on defendant’s motion, with thirty-two dollars and forty-one cents costs. Mo motion was made, so far as appears, to open the cjefault, nor were the costs paid...
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This appeal is from an order directing that a peremptory writ of mandamus issue commanding the appellant, its officers, directors, agents and servants, and each of them, forthwith to exhibit to the relator at its office in the city of Mew York, the stock book of the appellant, and to allow the relator, during business hours at such office, to inspect and make extracts from such book, and to copy t...
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This action was tried on the 12th and 13th of March, 1907. At the conclusion of the trial the learned justice sitting at Trial Term directed a judgment in favor of the plaintiff for $8,179.90, and denied defendant’s request to go to the jury. Thereupon the defendant'moved to set aside the verdict, which motion was entertained, and on the fourth of April following the verdict was set aside and a ve...
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The plaintiff appeals from a judgment entered upon a verdict in favor of the defendant. The case presented is one of a so-called “ Savings Bank trust,” and arises upon the following facts: On February 25,1898, Launcelot J. Tierney, the father of plaintiff, had a deposit account in the Broadway Savings Institution, which then amounted to $3,060, being $60 in excess of the amount permitted to be dep...
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The defendant appeals from an interlocutory judgment overruling his demurrer to the complaint. *629The plaintiff seeks to recover rent for certain premises in the city of Hew York for the months of May, June, July, August and September, 1906. As to each month, the complaint is drawn in two counts, one alleging a tenancy by holdover, and the other alleging an express contract of hiring. The facts u...
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The defendant appeals from a judgment entered upon a verdict in favor of plaintiff who sues for damages resulting from the death *634of her husband. The plaintiff’s husband, a young man about thirty-two years of age, was in the employ of the defendant, but not as a conductor ormot-orman. He was killed at about eight o’clock in. the evening of December 2, 1903. He and a companion, O’Con-nor, with w...
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The relator in his petition makes this application under the provisions of section 29 of the Stock Corporation Law (Laws of 1890, chap. 564,* as amd. by Laws of 1901, chap. 354). That section provides that “ Every stock corporation shall keep at its office * * * a book to be known as the stock-book, containing the names, alpha.betically arranged, of all persons who,are stockholders of the corporat...
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The action is to recover damages by an employee for personal injuries .claimed to have been received through defendant’s negligence. The negligence charged against defendant by the plaintiff in his complaint is that it failed to furnish him a safe place in which to work; in that its locomotive engine, tracks, roadbed and embankments were not in proper condition, and that it failed to employ compet...
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The plaintiff in the night time, was driving in a baker’s cart, ’southerly on Webster avenue in the city of Hew York. Shortly before the accident there had been a fall of snow, which had melted and frozen, making the roadway slippery. At’ the sides and between defendant’s tracks the road was rough and icy as the result of sweeping the snow therefrom. To- obtain a better footing for ¡his horses, pl...
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Several men, of whom the defendant was one, were interested in the Yetman Transmitting Typewriter.Company which was in need of funds for the prosecution of its business, negotiations were had with the plaintiff for the furnishing of such necessary money. These negotiations resulted in a written agreement signed by the plaintiff, the typewriter company, and the individuals who were termed “ subscri...
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Judgment affirmed on the opinion in Guardian Trust Co. v. Peabody (122 App. Div. 648), decided herewith. Patterson, P. J., and Lambert, J., concurred; McLaughlin and Laughlin, JJ., dissented....
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The plaintiff claims to have been injured while riding as a passenger in one of defendant’s stage coaches, by the negligent shutting of the door by the driver.' The issues litigated upon the trial not only embraced defendant’s negligence and plaintiff’s lack of contributory negligence, but whether or not plaintiff received any injuries at all in any stage coach, or if she did whether or not it was...
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Prior to the year 1895 Patrick Flanagan was a resident of Brooklyn in this State. Some time in that year he went to Jersey City in the State of Hew Jersey, ,and shortly thereafter entered St. Francis Hospital in that city, in which he remained apparently until August, 1896, when he returned to Brooklyn, where he visited' a brother for a short time and disappeared, hone of his relatives having- hea...
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The plaintiff brought action upon contract against the defendant, a nonresident, and obtained a warrant of attachment, and levied upon certain moneys in bank belonging to defendant. The defendant desired a release of the moneys from the levy of the attachment and filed an undertaking releasing them. Instead of obtaining an order releasing the levy on such undertaking, her attorneys presented to pl...
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The plaintiff’s complaint contains two counts for an alleged breach of contract by defendant to purchase asphalt from his assignor, the Densmore-Stabler Refining Company. The defendant’s answer contains specific and general denials sufficient to put the plaintiff to proof of breach of the contract. The second'separate defense alleges that, to the knowledge of plaintiff’s assignor, the contract whi...
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The defendant, a domestic corporation,- was engaged' in doing certain work in connection with the construction of the subway on Lenox avenue. Plaintiff’s intestate was one of the laborers employed, engaged .in mixing and delivering to the bricklayers and *673others, concrete upon the work, which was being placed over the roof of the subway and under the tracks of the surface railroad, operated by ...
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The plaintiff, upon a conflict of evidence, was given a verdict for $200 in an action for- slander. On motion of defendant the ' learned trial court granted an order setting aside this verdict. An examination of the case, no exceptions appearing, shows that the plaintiff produced evidence tending to show that the defendant in a court room denounced the plaintiff, among other things, as a thief. Th...
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This is ah action on an assigned claim by the Carroll-Porter Boiler and Tank Company to the plaintiff to recover a balance of $9,369.28, with interest, on a contract for the manufacture and sale of merchandise consisting of riveted steel pipes made and delivered by the plaintiff’s assignor to the defendant between the 3d day of June, 1898, and the 28th day of .August, 1900. The defense is the brea...
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The complaint alleges that on or about the 1st day of May, 1886, the defendant leased to one Lincoln a certain lot of land in the city of Hew York for the term of twenty-one years.; that thereafter said Lincoln duly assigned said lease to plaintiff’s decedent; that in said, lease it was provided that at the expiration of the term granted, if the said parties should agree upon a renewal thereof for...
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The amended complaint alleges that in November, 1905, the plaintiff brought an- action in the Municipal Court of the. city of New York to which the defendant interposed an answer, and that upon such action coming on. for trial the .parties entered into a stipulation that they would submit to the justice the question as to whether or not the defendant’s answer contained any defense, and that if the...
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This appeal presents but the single question as to the validity of a certain disposition of personal property attempted to. be made by the will"and codicil of Mahlon Sands, deceased. The testator died oh May 1, 1888, leaving a widow, one child by. a former wife, and three children by his second wife, who became his widow. After making certain provisions for his wife and children not necessary to b...
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The defendant appeals from an order by which the plaintiff and one Charles O. Haas were appointed receivers pendente lite of copartnership property. The material facts are not complicated. In July, 1905, the defendant held a lease of the Lyceum Theatre in Buffalo running to September 1,1906, and a further lease of the same premises running to August 31, 1911, with, an option to extend it to August...
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The defendants appeal from a judgment entered upon a verdict for plaintiff and from an order denying a motion for a new trial. *705The defendants are stevedores, by whom plaintiff was employed, and the action is brought under the Employers’ Liability Act (Laws of 1902, chap. 600). At the time of his injury plaintiff was one of a gang employed in unloading railroad ties from a sailing vessel. The t...
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Two questions are presented on this appeal, one relating to the sufficiency of the indictment and the other to the sufficiency of the corroboration of the evidence of Swartz, an accomplice. There are two counts in the indictment. • The first alleges that the defendant on the 9th day of February, 1907, “with intent to'deprive and defraud a certain corporation called Degrion Contracting Company of t...
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The complaint alleges that the plaintiff’s intestate while in the employ of defendant received injuries which caused his death ; that prior to the commencement of the action the plaintiff had caused to be served upon the defendant a notice in conformity with the Employers’ Liability Act (Laws of 1902, chap. 600) setting forth the time, place and circumstances under which the deceased was killed; t...
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I dissent from the proposition that plaintiff’s order for examination should be set aside because it does not seek to obtain evidence material to the trial of the action against defendant. - The sérvices claimed to have been performed by plaihtiff for defendant were in the formation of a copper company to take over certain mining properties owned by defendant and in the disposal of the- stock of s...
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The plaintiff’s intestate was killed by one of the cars of the defendant railroad at or.about Delancey and Attorney streets in the city of New York. It appeared from plaintiff’s testimony that the car from which the deceased fell and was killed was a horse car that was slowly moving west on Delancey street towards Broadway. There were a number of passengers on the front platform, upon which the de...
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The facts in this case, which are not disputed, are that the plaintiff and defendant were married in the State of Hew Jersey on the ,20th of May, 1888, and lived together until the fall of 1903, when they separated; that in August, 1905, the defendant commenced an action against the plaintiff for divorce- in the State of Illinois on the ground of abandonment, the defendant alleging in his bill of ...
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The plaintiff obtained an attachment and delivered the same to the sheriff of New York county, who levied upon certain railroad bonds alleged to belong to the defendant. A third party made claim to the bonds, and thereupon the sheriff impanelled a jury to try the validity of such claim. By their verdict the jury found that the bonds belonged to the claimant at the time of the levy, and fixed their...
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Plaintiff’s intestate was a beneficiary under the trust created by the will of James Brady, deceased. John B. De Cue was the sole surviving trustee and plaintiff brought this action in the Supreme Court for an accounting by him as such testamentary trustee. The other beneficiaries under the trust were joined as defendants and process was served upon them, and it is claimed that a summons and compl...
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Plaintiff is a practicing lawyer in the city of Hew York. The action is to recover the value of professional services'and the venue is laid .in the county of Hew York. The defendant is a resident of the county-of Monroe and he moved to change -the place of trial to that county on the ground of convenience of witnesses. *741The alleged retaining of plaintiff to perform the services sued for occurre...
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The court by a summary order has required the appellant, the O. J. Gude Company, to remove a certain sign upon private property located on the corner of Broadway and Forty-second street in the city of New York under the provisions of certain ordinances of the .city of New York, being part of the Building Code. This order was granted on the application of the city of New York based upon a petition ...
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Before proceeding to discuss the question- as to the validity of the “ sky sign ” ordinance, it is necessary to consider an objection raised , by defendant to the form of action adopted by plaintiff. It is argued that an injunction will not lie to enforce a municipal ordinance. As a general rule this is undoubtedly true (Village of New Rochelle v. Lang, 75 Hun, 608 ; City of Mount Vernon v. Seeley...
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This appeal presents substantially the same questions which are presented by the appeal in City of New York v. Wineburgh Advertising Co. (122 App. Div. 748), decided herewith, and the same considerations which require the affirmance of the order in that case call for the affirmance of the order appealed from in this. The plaintiff filed with the department of buildings plans and specifications pro...
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The defendant Blumenkrohn appeals from an interlocutory decree overruling his demurrer to the complaint. The facts are simple. The plaintiff held a leasehold estate in certain premises in the city of Mew York. On July 19,1905, he leased the premises to the appellant Blumenkrohn for a term of years to commence on July 1, 1907, at twelve o’clock, noon, and to end on October 1, 1920, also at twelve o...
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The Eew York Electrical Workers’ Union is a domestic corporation organized and existing under the provisions of the Membership Corporations Law. An action was brought against said union by the People to remove divers officers by reason of misconduct and maladministration, and a judgment was entered therein on the 8th day of April, 1907, removing a majority of the officers, directing that their rem...
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This is an action to recover damages for false arrest and malicious prosecution. The plaintiff testified that he was a passenger on a car of the defendant and was making a trip to the cemetery to visit his wife’s grave; that as the car upon which 'lie was riding approached the cemetery he saw a disturbance or fight around a preceding car between the conductor and the motorman of that car and a num...
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This action was brought to recover a savings bank deposit in the Citizens’ Savings Bank. The bank interpleaded the defendant and holds the money subject' to the final determination of the action. The complaint alléges that plaintiff is the owner of the deposit and demands judgment for the recovery thereof. The answer denies that plaintiff, is the owner of the deposit, and sets forth a counterclaim...
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Plaintiffs, who are residents of the city of Yew York, brought this action against William F. White, a resident of Yew York, and the White Silver Company, Limited, a foreign corporation organized under the laws of the Province of Ontario, Dominion of Canada, to recover $37,500 as commissions alleged to have been earned by them in bringing about the sale of certain lands in. Canada to Thomas A. Yev...
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This is an appeal from an order of the Special Term awarding to . the plaintiff alimony pendente lite at the rate of ten dollars per week, and a counsel fee of seventy-five dollars. The order is based upon a petition of the plaintiff, in which it >is alleged “ That she will be able to Substantiate all the allegations- of the complaint- by proof at the. trial, and that she has a good cause of ac...
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This is an order ad judging the defendant in contempt for disobedience of an order requiring him- to pay alimony and counsel fee pendente lite in an action for an absolute divorce, which said order was appealed from, and upon.said appeal has been reversed by this court in the opinion handed down herewith as having been improvidently made. (Schweig v. Schweig, No. 1, 122 App. Div. 786.) The order w...
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The relator was an inspector in the tenement house department of the city of New York. Charges of misconduct and incompetency were preferred against him, a copy of which was served upon him, and he was given an opportunity to explain them at a time and place named. He was then suspended from duty without pay pending the disposition of such charges against him. While these charges were pending the ...
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I think upon the facts appearing here the court should have granted the plaintiff some relief. Upon the trial the plaintiff offered in evidence a certificate of the county clerk as to the filing of a Us pendens. This certificate stated that a Us pendens had been filed in March, 1902. Counsel for the defendant objected to this certificate as evidence of the filing of the Us pendens / that objection...
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The action is brought to recover the • sum of $3,000 paid to the defendant for certain shares of stock off a corporation which it is alleged plaintiff was induced to purchase by and through false and fraudulent representations made to him by the defendant with intent to deceive, cheat and defraud; that the representations made to the plaintiff are in writing in letters and telegrams which purport ...
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The plaintiff, as trustee of the corporation the Schelling-Krakauer Company, sued to recover from the defendant for goods, wares and merchandise sold by the bankrupt to the defendant. There is no question of an illegal preference, the action being for the sale and delivery of these goods to the defendant. The answer is substantially a general denial. Upon the trial the plaintiff called the defenda...
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. There are three infant children, aged five, three and one year respectively. The testator died on April 22, 1906, and the petitioner, the mother of the children, was appointed their guardian by the surrogate. The estate consists of real and personal property of the value of about $800,000. The share of each of the infants will amount to about $125,000', the net income of such share being upwards...
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The defendant has been convicted for selling cream of tartar not of the standard of strength, qtiality or purity prescribed in the United States Pharmacopoeia. Section 40 of article 3 of the. Public Health Law has not been amended since its original enactment.. It defines the terms “ food ” and “ drug ” as follows: “ The term, food, when used herein, shall include every article of food and every b...
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This action was brought by the Attorney-General for the dissolution of the charter of the Federal Bank of ¡New York, a domestic banking corporation. Pending the action, the respondent, Leo Schlesinger, was appointed temporary receiver, and by the judgment of dissolution he was made permanent receiver in December, 1904. Pursuant to the receiver’s notice, duly given, for the presentation of claims, ...
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This is a statutory action* to recover for the death of Joseph Sobol, alleged to have been caused by the negligence of the defend*818ant.' On the evening of the 14th day of July, 1904, at about half-past seven o’clock, the decedent, who was nine years and five weeks of age, was struck by a north-bound car of the defendant on Third avenue, between One Hundred and Fifty-fifth and One Hundred and Fif...
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The action was- brought originally against Simon H. Stern, and upon his death his executrix was substituted. ■ The allegations of the complaint tend to present two theories of liability, (1) for deceit by decedent in selling and. delivering his own stock in the Pennsylvania Furnace Company to plaintiff, instead of stock in the same company which he induced plaintiff to agree to subscribe for and l...
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The action is for the conversion of certain diamonds. The plaintiffs were wholesale diamond merchants and their place of business was No. 2 Maiden lane, borough of Manhattan, New York. During many years the defendant was a retail jeweler in the city of New York and prior to the time in question had taken his wiféaud one Trebilcock, into business as partners, under the firm name of J. C. Proud man ...
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As I view it, -the contract embodied in the Consolidated, mortgage is ambiguous, Whether it. be construed as claimed by the plaintiff or •as claimed by the defendant; and" the proper construction is to be ascertained by a consideration of all of its provisions. At the time the mortgage was -made,, the entire issue .of $5,000,000,. face value, first mortgage bonds, Was outstanding and it was by the...
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The complaint alleges .as a- cause of action, that the defendant, with, intent' to cheat , and defraud the plaintiff, falsely and fraudulently represented to this plaintiff that the North American Lumber and Pulp Company was a corporation duly organized under the laws of New Jersey; that it had property of the value of its capital stock, and that the company had issued bonds secured by a mortgage ...
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This is an action by a broker to recover an alleged balance of commissions earned on the sale of 23,168 shares of the capital stock of the New York and Queens County Railway Company, under an employment by the defendant and one Shehnerdine. The amount of commissions agreed to be paid to the plaintiff by the defendant and Shehnerdine was $20,000. It is alleged in the complaint that after the commis...
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This is a suit in equity to have a lien declared in favor of the plaintiff and enforced against premises owned by the defendant for $500 on account of the expense of constructing a party wall. On the 28th day of February, 1899, the plaintiff owned a lot having a frontage of 20 feet on the northerly side of One Hundred and Eighteenth street, commencing 225 feet .westerly from the westerly line, of ...
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This action was brought by a trustee in bankruptcy to set aside certain transfers of property alleged to have been: made by the bankrupt in fraud' of creditors. The complaint alleges, in substance, the bankruptcy proceedings commenced in October, 1904; the discharge of the bankrupt, John S. Boddy, now deceased, in- December of the same year; the appointment of the plaintiff as trustee in October, ...
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On the 29th day of December, 1891, one Harriet E. Eoberts executed and delivered a power of attorney to Wilbur H. Whitlock, in which the said Wilbur H. Whitlock was authorized “ for me and in my name, place and stead, and to my use, to grant, bargain, sell and . convey any and all my real- estate situate, lying and being in' the Counties of Kings, Queens and Suffolk, in the State of Hew York, for ...
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This action was brought for the purpose of quieting conflicting claims to the title to about sixty acres of land situate in the town of Brookhaven, Suffolk county, N. Y.
During all the period involved in this litigation, the property has been wild land, covered with a growth of oak and chestnut in the northerly part, and with pine and scrub oak in the southerly part. In May, 1882, the county treas...
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The plaintiff alleges as his cause of action that he was injured in ornear the Casper Creek bridge, on the New'York and Albany post road, in the town of Poughkeepsie, on the 15th day of July, 1904, while driving south from'Poughkeepsie, such injuries being caused by the defective and narrow condition of the highway and bridge in such place and the unsafe, negligent and improper manner in which the...
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The relator held a license to conduct an • employment bureau or agency issued to her on the 15th day of June, 1906, which, under the terms of the statute (Laws of 1906, chap. 327) expired, by its own limitations on the first Tuesday of May next ensuing, the petition for the writ, herein being dated on-the 16th day of April, 190,7. It appears, therefore, that this court,, upon a writ of certiorari,...
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This ‘is an action for divorce. The charge - of adultery is contained in the 3d paragraph of the complaint. The answer denies each and every allegation contained in that paragraph. The question of the defendant’s adultery, therefore, was the only issue presented by the pleadings. The defendant noticed the case for trial in the Kings County Special Term beginning on the first Monday of June, 1907. ...
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This is an action brought to recover money paid as a deposit pending passing of title and expenses incurred in an examination of the vendors’ title. The learned trial court found the facts in accordance with plaintiff’s contention, but found as matter of law that the objections, raised by plaintiff to defendants’ title were *877insufficient in law to entitle him to refuse performance of the contra...
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This is an appeal from an order of the Special Term made upon ■the return of writs of habeas corpus and certiorari declaring the relator unlawfully restrained of his liberty and ordering his discharge. Relator was - a taker of tickets at the main door of the Imperial Theatre in Brooklyn. On the evening of March 22, 1907, he received tickets from two boys, aged fourteen and fifteen years, respectiv...
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This' is an appeal from a judgment entéred upon the report of a referee. The action was brought to recover a balance alleged to be due on a contract for the building of a conduit system by plaintiff for defendant in the village of Peekskill. Included in the items which the plaintiff sought to recover was $696.94 for extra work in taking up and relaying a brick pavement. Defendant denied any liabil...
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The plaintiff, with three other .persons, was riding on the rear bumper of a crowded car. The trolley pole slipped off the wire, and the rope attached to it caught the plaintiff about the shoulder and cast his head against the vestibule window, breaking the glass and inflicting slight injuries, for which he lias recovered the judgment appealed from. He had often seen trolley poles come off the wir...
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This action is to recover back $50 paid by the plaintiff to the defendant as a deposit on a contract for the purchase by the former of the latter of a .lot of land. The defendant did not refuse performance, but the -’plaintiff claims the right "to recover on the ground that the contract was not sufficiently expressed in writing to satisfy the statute of frauds. But this is wholly irrelevant. *2It ...
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The surrogate allowed one of the executors on his accounting extra compensation for continuing the business of the testator, and working therein, the will directing that the business be continued, but providing no extra compensation therefor to the executors.
At common law executors and administrators were not allowed any compensation for their services (Manning v. Manning, 1 Johns. Ch. 527). This...
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This is an action for damages for negligence. The plaintiff recovered a verdict, but the judgment and the order denying the motion for a new trial on the minutes have been reversed by us and a.new trial granted, on the ground that the motion of the defendant at the close to dismiss should have been granted, and that the exception to the denial thereof is good. The plaintiff now moves us to' amend ...
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The rule requiring a complaint to allege performance. by the plaintiff of all conditions precedent on his part to his fight of action is ancient and undoubted. • ft lias been incorporated in our '"code of practice by a provision that,such requirement is sufficiently complied, with by a general allegation that the plaintiff “ duly performed all the conditions on his part ” (Code Civ. Proc. § 533). ...
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There was no question made at the trial but that the complaint stated a cause of-action. It was only claimed by .-the defendant’s *14counsel when the case was reached for trial that the complaint did not state an equitable but a common law cause of action, which seems to be the case. Why he called attention' to this is not apparent, for he expressly said the court could not dismiss the complaint f...
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This is an action for damages for trespass on unoccupied lands in Suffolk county by cutting timber thereon. The court directed a verdict for the plaintiffs. The. complaint describes the-lands particularly, and also as being lot 29 in the West Meadow Division of the township of Brookhaven, alleges title- thereto in the plaintiffs and the trespass by the defendant on specified dates. The answer admi...
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The question of fact tried was what was the partnership agreement between the mother and her two sons when she died in 1903. The, partnership books showed that since 1895 her share of the capital remained constant at $30,000, and that, she received each year only $2,500 as her share of the profits, all increase of capital and all the rest of the profits being meanwhile credited to her sons. This c...
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The appeal is by the plaintiff. The action is upon defendant’s promissory note, which reads :
*24“ $2,500. New York, Oct. 'Ylth, 1904.
“ On Not. 1st, after date, I promise to pay to the order of Hap-goods, Ine., Twenty-five hundred dollars at their- office, for 25 shares Hapgoods, Inc., stock. Yalue received.
“ R M. LUSOPI.”
When it appeared on the trial that the note was given in payment of an or...
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The action was tried at Trial Term. It is insisted that the records clearly show occasion for surprise from the method of the justice who presided. The records fail to show that the learned counsel for the plaintiff made any sign at the trial'that he was surprised or that he asked either for a continuance or for the withdrawal, of a juror. In Dixson v. Brooklyn Heights R. R. Co. (68 App. Div. 308)...
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Lord Brougham said: “ In my mind he was guilty of no error, he was chargeable with no ■ exaggeration, he ivas betrayed by his fancy into no metaphor who once -said, that all "we see about us, Kings, Lords and Commons, the whole machinery of the State, all the apparatus of the system and its varied workings, end in simply bringing twelve good men into a "box. ” (Present State of the Law, 5.)
A jury...
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The action is brought in the Municipal Court for loss of services of a wife consequent upon injuries suffered by her when a'passenger in a car of the defendant. On the return day of thé summons' the plaintiff demanded a jury trial and a venire was issued. When the case came on for trial the defendant challenged the venire and the jurors drawn. The challenge was sustained, under exception by the pl...
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The plaintiff appeals from a judgment dismissing her complaint at the opening of the trial at Special Term. Both parties concede that the action is in equity to remove a cloud upon the plaintiff’s title. The question turns upon the extent and validity of certain letters patent from the People of the State. The learned court dismissed the complaint upon the ground that the court did not have jurisd...
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The action is for negligence to recover damages for wounds of the plaintiff’s horse inflicted by the kicks of the defendant’s horse. The plaintiff permitted the defendant .to stable his horse over night in plaintiff’s stable. .The plaintiff and defendant went together to the stable. The stable contained two stalls. The plaintiff’s horse was in one stall, and the plaintiff directed the defendant to...
Views: 1
This is an action against directors of a membership corporation upon an alleged debt of the corporation contracted while they were directors and payable within one year or less from the date it was contracted. (Mem. Corp. Law [Laws of 1895 chap. 559], § 11, as amd. by Laws of 1899, chap. 29.2‘.) Issue was joined, whereupon the plaintiff demurred to the separate defense as insufficient in law upon ...
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This is an action to recoverback a deposit of $200 paid by the ' plaintiff to the defendant on a contract for the sale of a city lot by the latter to the former. The contract describes the land as 82 feet 10 inches in depth. It fixes the contract price' at $7,000 and provides that $2,500 thereof is to be paid by' the purchaser assuming a mortgage which is already thereon for that amount, and that ...
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The action is for a broker’s commission on the sale of real estate. The evidence is that the defendant employed two of the plaintiffs to sell the property, that they brought him a purchaser on his terms, and that he refused to make the contract. Two other brokers are joined as plaintiffs, because they assisted the plaintiffs in getting the purchase, though not employed by the defendant. At the clo...
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A purchase of the trust property by a trustee of himself, or at his own sale, or even at a judicial sale, is voidable at the mere election of -the beneficiary, within a reasonable time, without regard to its fairness (Davoue v. Fanning, 2 Johns. Ch. 252; Jackson v. Walsh, 14 Johns. 407; Conger v. Ring, 11 Barb. 356); but a gift or sale of the trust property by a beneficiary to his trustee does not...
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There is no reason to interfere with this judgment.. The deceased was a locomotive engineer. Iiis engine left the track near the Bergen tunnel in Hew Jersey, toppled over on and killed him. He was 59 years old and left a widow and a son 30 .years old. The verdict was for $10,500. The defendant had been repairing and relaying a section of the track. There is evidence to show that the ties arid rail...
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The learned trial Judge did not err in excluding the evidence of experts as to what the "cost of such -a building would be. The actual cost could be proved, and therefore, the case was not one for the opinion, calculation or estimate of experts. No case is cited to the contrary. Nor was the statement of one of the plaintiffs before the plans and specifications were drawn, of the amount the buildin...
Views: 1
In 1877 the commissioners of highways made an order opening a highway now called Maple avenue down “ to.the shore or highwater mark”, i. e., to the, shore of the bay called Oyster Bay, and the highway has ever since been open'and in public use. There is nothing to show that land of the town was taken along the shore above highwater mark without any notice to the town officials in the opening of su...
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The plaintiffs judgment was for damages by the bite of the defendant’s dog. It was reversed on the grounds that a jury trial was refused and that it was not shown that the defendant had knowledge of the viciousness of. the dog. The defendant demanded a trial by-jury at the joining of issue, but did not deposit the jurors’ and constable’s fees in advance, as directed to do by the justice and requir...
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The affidavit of the plaintifE on which the order for service by publication was ■ obtained, after stating that none of the 23 defendants, excepting a few of them who are specified, “ are residents of the State of New York, or at present within the State’’^ states of one of the three of such non-resident defendants, service of summons upon whom is now in question, as follows: “ The last I knew of ...
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When the respondent was retired from the .fire department of the city of New York his pension in the fire department pension fund was fixed at $533.33 by the fire commissioner. It was the statute duty of such commissioner* to fix such pension at one-half the salary the respondent was receiving' at the time of his retirement, or at “ such less sum in proportion to the number of officers and members...
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This record presents an appeal by the defendants from an order of the Special Term denying their motion to dismiss the complaint for laches. It is not disputed that after issue joined the plaintiff for three years has done nothing towards bringing the action to trial, and in the meantime younger.issues have been tried in their regular order. These facts, under section 822 of the Code of Civil Proc...
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' This is a proceeding instituted by petition, pursuant to section 66 of the Code of Civil Procedure, to have the lien of an attorney on moneys collected by him determined and enforced. The appellant contends that the petitioner has no lien for the reason that the moneys were, recovered for an administrator of an estate, and hence that the administrator and not the estate is bound. The rule that t...
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The following is the opinion delivered at Special Term: In August, 1902, the plaintiffs entered into an agreement with the defendant Frederick Y. Haas to furnish and set in connection with the erection of a brick building on the south side of. Willoughby avenue, forty eight iron beams, 'four templates an£ fourteen iron columns. The price to he paid for' the material and labor was $2,000. The furni...
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If the old road was a Dutch road the fee of it was in the city, after the law of the continent of Europe, and its conveyance to the plain tiffs’ predecessor was good (Dunham v. Williams, 37 N. Y. 251). The capitulation of Long Island by the Dutch to the English was in 1664. If the road existed at that time the plaintiffs’ case is made out. It is mentioned in Hiker's Annals of Newtown (pp. 83-4) as...
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The plaintiff appeals from an order denying a motion that his action be preferred and set for trial during sthe January, 1907, Trial Term of the Supreme Court held in and. for the county of Westchester. His contention is based upon' the provisions of subdivision 1 of section 791 of the Code Of Civil Procedure. The action is brought by a State officer as such, and is clearly within the provisions o...
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When this apjioal was before us at the October, 1906, term (115 App; Div. 104) we did not have the brief of the learned counsel for the respondent before ns. A careful reconsideration, of the *488questions involved satisfies us that a different disposition ought to have been made of the • appeal, and that the judgment inust be affirmed. Thé action was brought to recover damages for-pefsonal injuri...
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Section 988 of the city charter allows an appeal to this court within á time limited from an order confirming the report of commis^ *493sioners of estimate and assessment, but provides that “the taking of an appeal by any person or persons shall not operate to stay the proceedings under this act, except as to the particular parcel of real estate with which the appeal is concerned; and the qrder co...
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" This proceeding, the ordinary accounting of an administrator, was .begun in 18J9 by the filing of the administrator’s account and objections thereto. ■ After many protracted- adjournments and various substitutions of attorneys and referees, it resulted in a referee’s report and a decree confirming it, entered June 21, 1899, by which the administrator was charged with the sum of $58,244.31. All p...
Views: 0
Unless this court is to sanction the doctrine that a written contract, made for the 'purpose of expressing the agreement between 'parties, and which is in no wise ambiguous, may be completely changed in its scope- by parol evidence and. the verdict of a jury, the judgment and' order appealed from must be reversed. The plaintiff in this action had, for a- number of years, acted as agent of the defe...
Views: 0
The sole ground for the demurrer in- this case .was that the com-, plaint did not state facts sufficient to constitute a cause of action. The plaintiff, an infant and á resident of the village- of Peekskill, winch is a' municipal corporation duly organized under t,lie laws- of. the State, brings this action-by his guardian ad litem, duly appointed:. At- the corner of Hudson avenue and South street...
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We should, not disturb the order. If the receivers have heretofore accounted in other jurisdictions, the order- would not preclude the receivers from reading decrees therein settling” such accounts, which, if valid, w’ould protect them herein and would halt any investigation in- transactions validated by such decrees. Further, if the receivers are protected against ancillary or collateral proceed-...
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The learned justice presiding at the Special Term, in the opinion handed do^m upon the-denial of this motion, wrote that the • motion could be granted only when it is conclusively shown that an impartial trial could not be had in the proper county; whereas, the statute is that the place of trial may be changed." where there is reason to believe that an impartial trial cannot be had in the ■ proper...
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We think that the motion to change the place of trial from Kings county to Saratoga county should have been granted. The action is for damages against a -member of- the Business Men’s Association of the village of Saratoga for laying an information which caused the Unlawful arrest and the arraignment of the plaintiff for a misdemeanor. The doings of the plaintiff which induced the-defendant to' -m...
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Huldah Lesser died intestate; in February, 1895. Letters of administration upon her estate were granted to Solomon Lesser on the 18th of February, 1895, This administrator did not file any. *508inventory in the" estate of Huldah Lesser, nor did he ever account as administrator; he died on the 20th day of May, 1905, intestate, and .Edward Lesser was, on the 9th day of January, 1906, appointed admin...
Views: 0
The testatrix of the defendant executor died seized of several pieces of real property; by her will site devised one of these pieces to the defendant Baynes. She gave to the plaintiff all of her personal property, except ■ certain earrings and her piano. During her life*510time the testatrix entered into a contract with one Hoffmann for the sale to him of the premises described in her will as devi...
Views: 2
The last subdivision of section 872 of the Code of Civil Procedure ■ provides that “ if the party sought to be examined is a corporation, tiie affidavit shall state the name of the officers or directors thereof, or any of them whose testimony is necessary and material, or the books and papers as to the contents of which an examination or inspection is desired, and the order to be made in respect t...
Views: 0
The tenant had been in possession under a monthly tenancy- for about 12 years. On the landlord’s agent raising his rent from $16 to $17 a month, the tenant asked the agent for a 3 years’lease. He made and delivered to him such a lease in writing; not in the landlord’s name, however, but in his own name. If, nevertheless, we deem it the landlord’s lease .(for it was not' under seal), it was void be...
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This is claimed by the plaintiff to be-a suit to enforce an equitable lien on real estate. The complaint is that the defendant made a written agreement to convey to the plaintiff on a day named a lot of land; that the plaintiff paid $500 of the purchase price on the making of the contract; that on the contract day the defendant was and ever since has been unable to convey a good title; that it cos...
Views: 1
It is not strange that the complaint was dismissed by the learned trial judge for not stating facts sufficient. It is filled with so much immaterial verbiage, and is so crude and unscientific, that it cannot be understood without painful scrutiny, and that should never be imposed on a trial judge. A complaint should be lean of everything except a plain and concise statement of the. facts constitut...
Views: 0
- This is an action for a penalty under section 39 of the Railroad Law (Laws of 1890, chap. 565).' The facts- are- not in dispute. The plaintiff, desiring to go to Green.point Ferry, the terminus of the defendant’s Graham avenue line, boarded a car on Graham avenue which did not go through to the ferry but turned off at Meeker avenue, where he demanded and received from the, conductor a transfer; ...
Views: 0
The defendants appeal from an interlocutory judgment overruling their demurrers'to the complaint. The complaint attempts to plead two causes óf action, and the defendants demur to the entire complaint, on the ground that causes of action are improperly united, .and to each separate cause of action attempted to be stated on the ground of misjoinder of parties plaintiff and of failure to state facts...
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The order should be reversed, with costs. The petitioners were the loan commissioners of Oneida county. The real property in question was a farm upon which there had. formerly been a mortgage for moneys loaned from the United States deposit fund. The mortgage had been foreclosed and the State had taken title to the property and had held it for many years. The loan commissioners had leased the prop...
Views: 0
The action has been twice tried. Hpon the first trial a nonsuit was granted at the close of plaintiff’s case. Plaintiff made a motion for a n.ew trial which was directed to be heard at the Appellate Division in the first instance. • This court unanimously overruled *532the plaintiff’s, exceptions and denied .his motion for a new trial (100 App. Div. 513).
Thereafter permission was given by a membe...
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, The contract entered into by the parties is dated the 20th. day of J une, 1906, was executed that day and is made a part of the complaint. It provides in substance that the plaintiff agrees to sell to the defendant the premises therein described,-consisting of a farm in the town of Howard, county of Steuben, for the sum of $3,500. The defendant agreed to purchase the same and to pay the purchase...
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, The question presented by this appeal is: May’the' president'of a bank who procures a note,, made by himself and others,'' to be dis- ' counted by said bank solely for the joint benefit of himself and of *543tlie other makers, by acting for or assuming to act for the bank, make any agreement respecting such, note which will in any manner relieve such makers, himself included, fpom their obligati...
Views: 1
The judgment and order should be affirmed, with costs. The action was brought to recover damages against the defendant' Titsworth for waste,, and to declare his life estate forfeited by reason of such waste, -under section 1655 of the Code of Civil Procedure. The wife of the defendant Titsworth acquired title to the property in question by deed March 20; 1863, and held such title until her death, ...
Views: 1
The interlocutory judgment should be affirmed, with costs, with leave to plead over upon payment of the costs of this appeal and of the demurrer.
The action was brought to recover the amount of a subscription for stock in the plaintiff corporation. ■
The ground of the demurrer was that the complaint"did not allege facts sufficient to constitute a cause of action.
The complaint alleged that the pla...
Views: 0
The acts or omissions of the defendant which it is claimed constituted actionable negligence and resulted in injury to the plaintiff' are set forth in the complaint. In effect it is alleged: First', that plaintiff, then'being fifteen years of age, was employed by the defendant to work upon and operate a machine which was unsafe, defective and out of repair to defendant’s knowledge; Second, that su...
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A statement of the facté is contained in the opinion of the presiding justice.: .
The policy of insurance contains this provision: “ Yo suit or action on this ..policy for the recovery of any; claim shall .be sus: tamable in any court of law or equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced within ' twelve months next after the fire.” By...
Views: 1
The action is in equity to restrain the defendant from entering upon the premises of the plaintiff and depositing thereon rock, clay and stone and refuse from a plaster bed. The judgment restrains . the defendant permanently from dumping any more of this material upon the plaintiff’s premises, and requires the defendant to remove therefrom the refuse already deposited —• the plaintiff having elect...
Views: 0
The defendant is a municipal corporation, and section 53 of its charter (Laws of 1892, chap. 143, as amd. by Laws of 1897, chap. 739) in operation at the time the plaintiff was injured, provided that any claim “ for damages founded upon alleged negligence of the city shall be' presented to the common council in writing within thirty days after the occurrence causing such damages;” and the contents...
Views: 0
The appellant’s counsel impugns the validity of the judgment awarding alimony to the wife on the ground that the husband was not personally served with the summons. Although the judgment recites that it was awarded upon 'the due “ service of the sutwin ons,” we will assume that no jurisdiction was acquired of the defendant in the separation action authorizing the recovery of the . money judgment. ...
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On the l'3t'h of October, 1904, Myron Blackman executed and delivered his promissory note for $350, due in -three months with use to the order of John- Dunfee, payable at the State Bank of Syracuse. As collateral security for the payment of said note Blackman executed and delivered to Dunfee a .chattel mortgage on . an automobile. Dunfee indorsed said note- and negotiated it with the State Bank, b...
Views: 0
The. judgment.should be affirmed, with costs. The action was ■ brought to recover damages caused by injuries inflicted by a bear kept by the defendant at his camp in the Adirondacks.. The facts are very simple, and are briefly stated, so far as they are important here. The bear was a'ferocious animal, dangerous to mankind, and was known to both the plaintiff and. the defendant to be" so.. It had, ...
Views: 1
The plaintiff’s exceptions should be sustained and the motion for a new trial granted, with costs to the plaintiff to abide the event.
*607The action was brought to recover damages for personal injuries' alleged to have resulted from, the negligence of the defendant.
At the close of the plaintiff’s evidence the court granted a motion ■ for a nonsuit solely upon the ground that there was-a failure ...
Views: 0
The judgment should be affirmed, with costs. The action was to recover the possession of real property, usually ■ known as an action in ejectment. Lawrence Oliphant died' in England in December, 1888. He left a will by which he appointed two trustees, Buckner and Smith, and devised to them all.' his property at ■ Brocton, Chautauqua county, 1ST. Y., upon trust to sell and convert the same into mon...
Views: 0
The judgment and order should be reversed, with- costs to the appellant to abide event. The action was brought to recover money alleged to have been loaned by plaintiff’s intestate to the defendant: The deceased died July 18, 1903, at the age of eighty-six years seven months. ' He left his wife and one daughter by a former marriage. The' defendant was his nephew. The money alleged to *613have been...
Views: 2
The order should be affirmed, with costs. The action-was brought 'to recover damages-for personal injuries, causing deatlq alleged to have resulted from the defendant’s negligence. The action .was tried originally in January, 1904, and-resulted in a verdict for' the plaintiff. Upon appeal to this court the judgment was .reversed and a new trial granted upon the ground that the verdict was contrary...
Views: 0
The order should be affirmed, with-costs. .The certificate was issued April 28, 1905, to expire April 30, 1906, authorizing the defendant to traffic in liquor .at premises situate on the southwest corner of Wasson avenue.and Iron street, Lachawanna, Erie county, H. Y; The petitioner claimed that on October ' 13,1905, the defendant permitted gambling in said premises by means of a nickel slot machi...
Views: 0
By agreement the three actions involved in the judgment appealed from were tried together before the referee, to whom they had been duly referred. But one report was made by the referee in disposing of all the actions, by which, however, he directed specifically the judgment to be entered in the consolidated actions Nos. 1 and 2, and also fhe judgment to be entered in action No. 3, Only one judgme...
Views: 1
The cause of action, upon which plaintiff, as the administratrix of Henry Orendorf, whose widow she alleges she is, has recovered *639the judgment, from which this appeal is taken, is based upon the claim that intestate’s death was caused solely by the negligence of defendant. The answer raised the issues usual in such cases, and . among those which were actively litigated was the question of the ...
Views: 0
(dissenting):
■ . The appellant is a life insurance corporation organized in the State of Mew Jersey, but authorized to transact business within the State of Mew York. In 1886' it issued a policy of insurance to Elizabeth Á. Morgan upon the life of her husband, Orson A. Morgan. The policy provided that incase the wife died before the insured,, the amount of such insurance should be payable to his ...
Views: 0
While we have reached the conclusion that it was proper to set aside the verdict and grant a new trial herein, we think the evidence was sufficient to require the case to be submitted to the jury. The plaintiff was a married woman living with her husband and family of children upon premises consisting of about three acres of land, upon which there was a dwelling house and a barn, the title to whic...
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Plaintiff alleges that she, as administratrix of the estate of her deceased son, prosecutes this action to recover of defendant the amount for which the life of deceased was insured hy defendant. At the close of the trial the court directed a verdict for plaintiff!
The policy, issued November- 2, 1903, was for the sum of $188.60, and provided for the payment of weekly premiums of ten cents each. A...
Views: 3
The only question to be determined on this appeal is presented ■by reason of. a difference of opinion of the parties as to the meaning of, and construction to.be given to, that portion of the charter, or legislative enactment, continuing the reconstructed - municipal. *672corporation, known as the City of Lockport, which' designates the powers and limitations of justices of. the peace for that cit...
Views: 0
In our judgment this case presents a question of fact for the-jury rather than a question of law for the court. The engine had been detached from the train and had just passed the crossing going to the north. The flagman was there at his station waving his flag. A short distance north of the crossing the engine went over by a switch upon the other track and came then southerly recrossing the stree...
Views: 0
As the case was finally submitted to the jury plaintiff was allowed to recover only upon proof that the defendant was guilty, of gross negligence - through -which the plaintiff suffered his injuries. Defendant contends that by the contract it was released from all-injuries caused by the negligence of the defendant or its servants *678and the law does not distinguish between' different degrees of n...
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. Plaintiff and defendant had been engaged as copartners in the purchase and sale of huckleberries. The action is brought for the "settlement of'the accounts between them. By the answer it is alleged that after the bringing of the action the parties got together and adjusted their accounts, and there was found to be owing from the plaintiff to the defendant the sum of $191.47, which sum the plaint...
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Page 3221
Plaintiff recovered judgment for the cost of paving a public street two feet in width outside of each rail of the defendant’s single track. The defendant 'admitted its liability for the paving of one foot outside of each rail. The decision of this appeal depends, therefore, entirely upon the proper construction to be given to section 98 of the Railroad Law (Laws of 1890, chap. 565, as amd. by Laws...
Views: 0
The appellant contends that the judgment is contrary to evidence. It is unnecessary'to consider that question! Where it is not clear that the evidence • fully sustains the verdict, the other point presented by theappellant has a controlling force. The judgment should be reversed on account of improper remarks made by . the counsel'for the respondent in summing up to the jury, which show clearly th...
Views: 1
-In 1871 the plaintiff obtained a judgment of divorce in- the Supreme Court in this State, the'summons- having been ¡served upon. the defendant by publication only, which judgment awarded to hei forty-three dollars, costs, and fifteen.dollars per month alimony for the term of ten years. The plaintiff, who has since married, brings 'this action. against the defendant by attaching certain property. ...
Views: 0
In addition to the ordinary allegations in foreclosure, the complaint alleges that before the death of the mortgagor the Superintendent of Public Works duly instituted proceedings under chapter 147 of the Laws of 1903 for the condemnation of - a part of the mortgaged premises, that the necessary, maps and surveys were filed and served, and .that the State Engineer, pursuant to such proceedings, ha...
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It is plain that the primary purpose of this action is to- obtain an accounting, and that the trial will require the examination of a long account as to three of the causes of action set forth in the complaint. The fact that the second cause of action may be regarded as calling for a determination of. the rights of the parties independent of the state of their accounts did not deprive the court of...
Views: 0
The complaint in this action is based- upon a life insurance policy ' issued by the defendant,- The Mutual Benefit Life Insurance: Company, to Meier Illch in 1864 for $1,000. The policy was pay able, to . Babette Illch, his .wife, if she survived him; if she did not, then to their children. The defendants claim that "the policy ..was assigned to thé'insured December 19, 1893, by the plaintiff and ...
Views: 0
This is an action to charge the real estate of which Charles A. Avery died seized with an indebtedness due to the plaintiffs. Tire complaint alleges the making of a promissory note by Charles A. Avery; that the plaintiffs are the owners thereof; that $4,671.48 and interest from July 1, 1902, is due; that the defend- , ant is the sole heir at law and next of kin of the deceased and as such is entit...
Views: 3
Whether the defendant had a right in any event to remove the plaintiff from his premises by force and whether, .if that right existed, he' used more force than was necessary for that purpose, were the two questions submitted by the learned trial judge to the' jury. Defendant’s contention was that a difference arose between him and the plaintiff as to the amount of money that was owing to her; that...
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. . By the' indictment the defendant Munroe and One William Barry were accused of the crime of robbery in the first degree. It was ‘charged that, the said Munroe and said Barry jointly, each being the accomplice of the other and actually present at the time, did feloniously assault one Cólbert and did feloniously steal, take and carry away from the person of said Colbert against his will by'means ...
Views: 0
The complaint itself states aicause of, action. It is criticised :by* the defendant as not alleging that the plaintiff is able to convey the property. It does state, however, that the'plaintiff “has.always been, and still is, ready and willing to perform the said agreement on his part,” and that-he thereafter did tender to the defendant a deed of said premises pursuant to the terms of said agreeme...
Views: 0
Tbe following is the; opinion delivered at Special Term:
The relators obtained a writ of certiorari to review an assessment . upon their property for the purpose of taxation. Upon the return of the' writ the respondents moved to dismiss the same, upon'the ■ ground that relief, if obtained at al.I, must, be by mandamus and -not by certiorari. ,
The' assessing board had jurisdiction, and acted, and...
Views: 0
The following is the opinion delivered at Special Term : This action is brought for the partition of certain real estate situate in the village of Whitehall, H. Y. The defendant Ralph Rush interposes an answerand,, as a second separate defense, sets up a will of S. Elnora Rush and claims that, under the provisions of this will, *717the real estate sought to be partitioned or sold could not be disp...
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The defendant has .been convicted of murder in the second degree for shooting to death one. Balph Di Scibio on the 7th of August,-1904. Di Scibio at that "time was the "proprietor of - an Italian shanty near the .city of Amsterdam, which shanty he occupied as a Store and in which he also . furnished .lodgings for some Italians,, including defendant-, who- were engaged in thfe- construction of a hi...
Views: 0
Plaintiff contends that section 97 of the Insurance Law, added by chapter 326 of the Laws óf 1906, as above set forth, is a limitation on *727the total expenditure of an insurance corporation and is not a limitation on the expenditure of any particular agent; that the corporation may pay some of its agents compensation exceeding the proportional share of expense as fixed by the statute on the firs...
Views: 0
At.a trial of this action in September, 1902, after plaintiff had rested, he at the-request of defendant and, as he says, desiring to shorten the trial and relieve the defendant from calling witnesses, made the following concession': “ It is conceded, that the mortgagor William W. Smith died intestate about sixteen years,ago, leaving a wife, Ann Smith, and one daughter, Caroline Smith Essex, the •...
Views: 0
This is an action to foreclose a mechanic’s lien. The appeal con- ■ eerns only the award of costs. .The oxvner of the real property in question is the defendant, The Schenectady Co.-operative Realty Company. The defendant George Marr contracted with such owner, for the construction of certain buildings. After partially performing, his contract the contractor defaulted. The owner completed the cont...
Views: 0
- This is an action to foreclose a mechanic’s lien,. The complaint alleges that plaintiff performed services consisting of painting and p'aperlianging in the buildings and on the premises' of the defendant, and that he furnished material therefor, “ all, of which amounted at the price agreed upon therefor, to and of the reasonable worth and value of $227.37,. which said" services performed and mat...
Views: 2
It has long been settled- in this State that inadequacy of price, unaccompanied by other circumstances, is an insufficient reason for a refusal to confirm a judicial sale. (American Insurance Company *742- v. Oakley, 9 Paige, 259; Brown v. Frost, 10 id. 243 ; Tripp v. Cook, 26 Wend. 143; March j. Badlum, 3 Sandf. Cli. 35; 51; Howell v. Mills. 53 N. Y. 322, 326-; Wesson v. Chapman,76 Hun, 592; hfti...
Views: 0
The defendant and his wife, Stella Stacy, prior to Sunday, October 29, 1905, were living together with tlieir child, a little girl their about three years Of age, at Lake Titus in the town of Malone,. Franklin county,-in a small farm house .near the 'highway. The wife had been away frOm home on that day. On her return about five o’clock in the afternoon she stopped for a short time at the house of...
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■ The order appealed from, denies the application of. the relator for a peremptory writ of mandamus requiring the respondent to file in his office a certificate of incorporation. The secretary refused to file the certificate because there was contained therein the following clause: " The directors may, with the consent of the holders of two-tliirds of the capital stock, issued and outstanding, sel...
Views: 1
This complaint presents no cause of action against the town, for the simple reason that the statute provides otherwise, and provides the method of procuring pay for furniture purchased for the use of the town clerk. - • - The statute under which this safe was purchased is section 85 of the Town Law (Laws of 1890, chap. 569). That section provides; that “ The town clerk of any to'wn may, with the' ...
Views: 1
The Court of Claims seemed to have dismissed the claim on the ground that no enabling act had been, passed by the Legislature, and, therefore, the State had not consented to have its liability for' the services performed determined by that court. There is no doubt of the proposition that a sovereign State . cannot be sued except by its own consent. This is too well settled to require the *756citat...
Views: 0
Page 3243
It is claimed that the surrogate erred in not allowing anything to the appellant for commissions of Margaret L. Hallenbeck as administratrix of her husband’s estate. The place where such commissions should have been- allowed, if she were entitled to any, was on the- accounting of Smith as her executor to ascertain the liability of her estate to that of her husband for her acts as administratrix. T...
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' The action -is brought to recover what is claimed to be the amount remaining unpaid on a beneficiary certificate issued -by the defendant association upon the life of one. William Conard for $3,000. He died in November, 1903, and the defendant paid to the beneficiaries under the certificate the sum of $866-.13. Thereafter the executor of the estate of Conard and the beneficiaries under the certi...
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It appears very clearly by the affidavits before the court upon the . .application for'the interlocutory judgment-that at the time of the execution of the separation agreement between the plaintiff and ■ defendant they were «living together as, husband- and wife,, and that after' the execution of such agreement and pursuant- to «the terms thereof, they separated and have ever since lived apart fro...
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The appellant seeks a reversal of this judgment because of alleged errors in the rulings of the learned trial justice with respect to evidence and in his charge to the jury. The rulings with respect to . . evidence may be grouped in two classes. In the first place there ■yvas a series of rulings admitting evidence' which tended to show ■ that a number of Other suits had been brought by. this plain...
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'There is a complete failure of proof that the defendant purchased the building materials in question from Brown, and there was no " evidence that he ever entered into any agreement with Brown for the erection of a barn or the furnishing of materials therefor. On the trial the court allowed the plaintiff to show, under objections - and exceptions, that the barn in question was erected upon the gro...
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. There are at least two sufficient reasons why this appeal must be dismissed: First. The petitioner is in no sense a party aggrieved by the ■ order- appealed from nor does it affect any substantial right of his. Heither his liberty nor any property right of his is affected by such order, and no statute appears giving a petitioner, under such circumstances, a right to appeal. . . Second. The term ...
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The executors contend that under the provisions of section 2722 of the Code of-Civil Procedure -the surrogate was required to- dis*783miss the petition upon their answer. The petition alleged an agreement dated January: 14, 1898, by which the testatrix, for a .valuable consideration, agreed to pay forty-five dollars per month to Mary M. De Forest for her use, and the sum of twenty dollars per mont...
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The defendant was held liable as an indorser upon a promissory noté of $375. He indorsed for the. accommodation of the maker and the plaintiff is a holder for value.' It was claimed that the note as originally made and when it was indorsed was for $75 only, but had been fraudulently, altered after the indorsement and before it reached the plaintiff. That question was submitted to the jury as a que...
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The motion to- dismiss is based upon. the contention that the petition shows that all the assessments upon the roll are illegal, for the- reason that the assessors did not give the proper notices, did not complete the roll within the timé, .and for other reasons," and also that it appears that the relator wás added to the ■ roll after the assessors had. ceased to have the power to make additions t...
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Upon a trial'before the court and. jury the plaintiff recovered judgment upon the ground that lie had paid rent in advance for ■premises which were falsely and fraudulently misrepresented to him, and that on' account of the misrepresentations he had rescinded the lease and abandoned the premises. One of the'principal claims by the plaintiff was that the house was damp, and that at the time .of the...
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The action is for libel in publishing certain articles derogatory to the plaintiff’s “ pink pills for pale people.” The 10th paragraph of the answer is a denial of the allegations not admitted. The 11th paragraph begins, “ The above-named' defendants further answer ing said complaint, and for a second further answer and defense allege,” and the 11th, 12th ' and 13th paragraphs are evidently intend...
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This action was brought iii Justice’s Court to recover damages for an alleged trespass. It was alleged in the complaint that the defendant wrongfully and unlawfully diverted and changed the course of a stream of water and turned the same on and over plaintiff’s land to his damage in the sum of $200'. The answer of the defendant put in issue these allegations. The defendant did not defend in Justic...
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This is an application to confirm the determination of the commissioners appointed herein as to the public convenience and necessity of the extension of the petitioner’s road 1,500 feet along Western avenue -in the city of Albany. " Ko question is raised as to the regularity of the -proceedings. The principal question is raised upon the merits as to the public *807convenience and necessity. The co...
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(dissenting): I am. unable to agree with the other members of the court that ■ the judgment aj)pealed from should be affirmed. At the trial tha >■ z complaint was dismissed, on defendants’ motion, without taking any evidence,, and, therefore, whether or not-the" ruling were correct must be determined in the same way as if the defendants had demurred to the complaint upon the ground that it did ...
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The plaintiff leased to the defendant the. front and back parlors of premises Eo. 664 Lexington avenue, to be Used by the defendant, the back parlor as a dental, office and the front parlor as a waiting and reception room, the plaintiff further agreeing that she would ■ not rent the basement to any tenant displaying signs, showcases or ■ articles of merchandise on the outside of the premises. This...
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An attachment had been issued in this case which had been executed by the sheriff by levying upon $500,000, the property of the defendant Gould, on deposit in the Mercantile Trust Company. Gould then gave an undertaking in the sum of $500,000 under sec*818tions 687 and 688 of the Code of Civil Procedure to release the levy of the attachment, and upon that undertaking moved for an order discharging...
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This action was brought to recover the purchase price of certain goods, wares and merchandise alleged to have been sold and delivered to the defendants. The plaintiff had a verdict, and from the judgment entered thereon and an order denying a motion for anew trial defendants have appealed. The goods, wares and merchandise in question were formerly owned .by J. Fred Graves and Bertha Katherine Grav...
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This action was brought to recover the sum of $3,000 for services as nurse, alleged to have been rendered to defendant’s intestate, and the sum of $210, alleged to have been loaned to him. The alleged services covered a period from August 11, 1901, to September 10, 1904, at $2.50 a day for 1,013 days, and from September 10, 1904, to January 1, 1905, during his last illness (117 days), at $4 a day....
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This action was brought for the dissolution of the New York Building-Loan Banking Company, a domestic corporation which, in February, 1904, was adjudged insolvent, a dissolution decreed, and a receiver appointed. A referee was appointed to take and state the accounts for the first year of the receivership and to report on disputed claims. The referee reported that all claims of class “ W ” shareho...
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This is an appeal from an order denying a motion for a peremptory writ of mandamus to compel the comptroller arid collector of assessments and arrears of - the city of Mew York to accept the sum ■ of $33,857.49, being the sum of $25,490.17 with interest and penalties, in full payment for the tax assessed upon the special franchise of the relator for the year 1900. The full amount of the tax was $4...
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■ .The defendant, a domestic corporation,.on Hovember 30, 1903, executed and delivered to one Morris, as trustee, a mortgage to *840secure the payment of.certain, bonds. Morris accepted the trust and continued to act until November 8, 1905, when he resigned, and thereupon one Bostwick, who claimed to be the owner of all of the outstanding bonds, was, upon his own- application, appointed substitute...
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The defendant, a lad under sixteen years of age, was convicted of disorderly conduct under section 675' of the Penal .Code,-for which a fine of two dollars was imposed, and in default of payment, imprisonment, not exceeding two days. At the time of his arrest the defendant, in company with forty' or fifty other boys, of similar age, undertook to board a train in the subway at Bleecker street ■—• w...
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This action was brought to compel specmc performance of a contract for the sale of certain unimproved premises situated at the northwest corner of Amsterdam avenue and One Hundred and 'Seventy-third' street in the city of New York. The contract describes the lot as thirty-five feet on the' street and on.e hundred feet on the avenue. It does not contain the customary words “ more or less ” after gi...
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This appeal is from an order denying defendant’s motion for leave to serve an amended answer. The action is brought to recover a certain sum of money alleged to have been collected by the defendant while acting as the agent of the plaintiff. The answer interposed denied the material allegations of the complaint and alleged, as a separate defense, the pendency in another jurisdiction of a prior act...
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On the 30th day of Hovember, 1906, in an action brought by the Atlantic'Realty Company against Joseph Wlódar and others for-the foreclosure of a mortgage on certain premises located at. the intersection of Audubon avepue and One Hundred and Eightieth street, in the city of New York, Edward D. O’Brien was appointed *851receiver, for the benefit of the plaintiff, of the rents and protits of tiie sai...
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This action was brought for an absolute divorce. The complaint alleged that on or about the 15th day of February, 1903, in the city, county and State of New York, plaintiff and defendant intermarried; that the plaintiff is a resident of the borough of Manhattan, city of New York; that there is one child of the marriage now in the keeping and custody of the plaintiff, and that on the' 8th day of Ma...
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- The plaintiff sues for breach of a promise to marry. Defendant denies that he ever promised to marry plaintiff, and by way of separate defenses alleges that prior to the. alleged agreement the plaintiff had been lawfully, married to . one Julius Stem,' and had' lived and cohabited with him as his wife, and that such marriage had never been annulled, nor had the parties ever., been divorced from ...
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Summary proceedings were brought by the petitioner, .under section 2232 of the Code of Civil ^Procedure, to recover from alleged squatters- the possession of certain land in the borough of Brooklyn. In their answer the defendants set forth facts showing that the title to the property would come in question, and if the proper practice had been followed thereupon, pursuant to sections 179-182 of the...
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The complaint alleges negligence on the part of the defendant, both at common law and under the Employers’ Liability Act (Laws of 1902, chap. 600), and the case went to the jury upon this theory. The facts which must be deemed to have been found by the jury are as follows: The plaintiff was employed by the defendant, a manufacturer of safes, and on the 2d day of July, 1902, the defendant’s foreman...
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It appears that the defendant, as' a broker for the plaintiff, brought in certain customers who entered into contracts to purchase certain property, owned by the plaintiff,. for $57,000. This contract'was drawn on the 24th of May, 1906, and the plaintiff admitted that in response to the demands of the defendant he wrote into the 'contract that the defendant was to get his commission for effecting ...
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There is no dispute as to the facts- in this case.' The only question arises: as to. the construction to be. placed upon the will of Charles Runyon, deceased, upon which depends whether the plaintiffs were able to convey a marketable title. ’ The will was written . by. the testator, who was not. a lawyer, and is very simple in its provisions; Omitting the formal portions, the. will provides as fol...
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I think that the order should be affirmed. The appellant contends that the'new evidence could not change the result because the plaintiff, being entitled" to full; pay during the time he was removed pursuant to the provisión of section .537 of the Greater New York charter, was not subject to any deduction of his earnings while out. of his occupation. I think that the *21point is not well taken bec...
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This action is for negligence. The plaintiff" complained that when as a' passenger she- had mounted the- platform and was about to enter the 'car -of the defendant, which worked an electric street surface railway, the ear , was suddenly moved forward with a violent jefk, before plaintiff had been given a -reasonable opportunity to get into said car or take a seat therein, owing to the negligence a...
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I advise affirmance. The action is to establish riparian rights on the Hudson river. The appeal is from an interlocutory judgment overruling a demurrer that the complaint does not state facts sufficient to constitute a cause of action. The plaintiffs complain that in 1838 Isaac Seymour and two others were tenants in common of land abutting on the Hudson river, which were uplands; that as such owne...
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This is an action for services in searching a title. The answer .is denial that the services were at defendant’s request, that the agreed value was $73 and a defense that the plaintiff offered to make, but did not make, a loan applied for upon the property. I think that the judgment should be affirmed. There is no doubt that the defendant upon his application to the plaintiff signed an agreement w...
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The plaintiff is the record owner of certain real property and contracted ■ to sell the same to the defendant, who has refused to perform on the ground that in the year 1878, in an action to foreclose a mortgage upon the property, the plaintiff’s title coming *31through the purchaser at the foreclosure-'sale, there was a defect of parties defendant' in that the residuary legatees and devisees, und...
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The plaintiff was a guard on an elevated train operated by the defendant on Fifth avenue in the borough of Brooklyn. The train on which he was serving became stalled between Twenty-ninth and Thirtieth streets, and the lights went out, except as to two small red lights shining from the end of the rear car. It w.as dark, but clear. Another train coming from Thirty-sixth street ran into the rear of t...
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So far as appealed from, the decree of the surrogate should be reversed. . In Matter of Totten (179 N. Y. 112, 125) the court has laid down the following rule by which controversies of this character must be decided: “ A deposit by one person of his own money, in his own name as trustee for another, standing alone, does not establish an irrevocable trust during the lifetime of the depositor. It is...
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Plaintiff commenced two actions against the defendant, upon promissory notes given as part of the consideration of an exchange of properties. In the first action the defendant set up misrepresentation and fraud as a defense and a counterclaim for the damages he claims he sustained by reason of the misrepresentation and fraud; and in the second action he set up the misrepresentation and fraud as a ...
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. The complaint alleges a written agreement under which the plaintiff was employed by the defendant as its sales agent, to be compensated for his services by the payment of a commission of live per cent upon the net price of all cement sold within his territory, payable on all sales accepted by defendant, when - delivered; specific sales of some 300,000 barrels.of cement, accepted by defendant, an...
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The plaintiff appeals from so much of an order made at Special Term as denies liis motion for a temporary injunction restraining the defendant' from continuing in her present employment ór the employment of others in the same line of business as the plaintiff for a period of two years from the 28th day of September, 1906. *43The plaintiff is engaged in the business of making loans of money to indi...
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It is undisputed that this action was commenced 'on March 8, 1894, arid issue joined by the seiwice of an amended answer on March 6, 1895, since which time no effort has been made by the plaintiff to bring the issues to trial until after the service of notice of the defendant’s motion. These facts established & prima facie case of unreasonable neglect, and threw the burden of excusing such neglect...
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. The only question here presented is, whether the appellant’s assignor was justified in refusing to accept- title to certain real property in the city of Few York, and further to perform the requirements of a contract for the purchase thereof. There is no substantial dispute upon material facts. The agreement referred to covered two parcels of property, and recited that,one parcel “is subject to ...
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The only authority of a justice of the peace to adjourn a cause, after joinder of issue, upon the application of the defendant, is contained in sections 2944 and 2965 of the Code of Civil Procedure. The plaintiff’s complaint had been in no manner amended, which excludes thé provisions of section 2944. The power given by section 2965 cannot be exercised except for a single reason, viz., that the de...
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In June, 1905, the plaintiff leased to Charles Koehler under a written lease the first floor flat in plaintiff’s house on Bath avenúe for the period of one year from the twentydirst day of June, at the yearly rental of $264, payable $22 monthly in advance on the twenty-first day of each month, and defendant became surety for the payment of the rent. The lease contained a covenant that the tenant s...
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The only question presented is whether the action can be maintained against these defendants. There is no claim that the money deposited ever came into their possession. The learned counsel for *55appellant contends, however, that the covenant to return the money ran with the land, and defendants’ title was taken subject, to the agreement contained in the-lease. In this we think,he is mistaken. Th...
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■ The respondents are-the devisees of Jane B. Eddy, deceased, who in 1877 conveyed the -property involved in this suit toi.one Bernard Spaulding, taking back a purchase-money mortgage. In the same year said-Spaulding conveyed to the defendant McOrea. . In'1878 an' action to foreclose.said mortgage was commenced and prosecuted to judgment, but there was no sale under the judgment.. In 1904 *57said ...
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The action is for damages to personal property caused by an over- . flow from-one of the defendant’s sowers, The plaintiff had j.udg*61ment. It appears that the water backed up through the house connection and entered the cellar through an opening in the floor eight feet below the curb. The plaintiff testified that the water ■ had not entered the cellar before during, the year that he had occupied...
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This is an action to recover the penalty provided by Laws of 1890, chapter 566, section 65. The defendant commenced supplying -the plaintiff gas April 28,1900, on his oral application ; a dispute having arisen over a bill, on January 11, 1901, it removed the meter and discontinued said supply. The plaintiff made no written application, but waited 450 days and then sued to recover the penalty of te...
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This action is by an attorney at law . against his cliént upon the following contract'. ' ' . “ I hereby retain and employ Elijah L. Roaké as my attorney and counsel to settle or compromise, sue for of collect the-sum of Ten hundred and-fifty Dollars and interest from'March 2, 1900, due me from H. C. and Gr. L. Baker and H. S. Stewart, and he, having rendered services for me in such connection, in...
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This appeal has been reargued by order of the court, only four members sitting on the original argument and being then divided in opinion on some of the questions presented. (See 115 App. Div. 910). The action is brought to recover possession of certain securities which, it is alleged, the defendant, an attorney and counselor of the Supreme Court of this State, acquired by force and fraud. The ans...
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The evidence- in this case supports the finding of the learned trial justice that the property in question has been damaged during the ' period óf six years prior to the commencement of the action by reason of the. inadequacy of the sewers maintained by the defendant to carry off the waters occasioned by ordinary storms. The damages awarded are not excessive. The plaintiff’s proof of ownership of ...
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The principal question discussed in the opinion of the learned judge at Special Term is whether the complaint shows upon its face "that the plaintiff corporation was insolvent at the time when the ¡agreement was made relating to the distribution of the assets. It •appears to have been assumed that if the corporation was insolvent •at that time the agreement was invalid. It seems to us, however, th...
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This is a motion made at this term of this court for .an order nuno pro tuno as of the 7th day of March, 1907, the date of filing the notice of appeal to the Court of Appeals, allowing an appeal *75herein to the Court of Appeals and certifying that a question lias' arisen which ought to be reviewed by that court. Our order, of which a review is sought, .was made on the llth day of January, 1907. T...
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The action is for negligence by servant against master. The ser-. vant, a woman aged nineteen years, worked at sorting broken parts *76óf vanilla beans, called “ cuts,” in the warehouse of the- defendants who imported the beans from Mexico. The-plaintiff, who had.no previous experience, testifies.that after two weeks her skin itched and then a red swelling or an eruption of small blisters appeared...
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■ I think this judgment may be affirmed. The evidence does not show words or conduct of commission or omission of the defendant whereby he could be held as a partner. But the leárned counsel for the appellant insists that the defendant should be thus held under his agreement with Bedell and by the authority of Hackett v. Stanley (115 N. Y. 625). 'The agreement recited that Bedell was to build hous...
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The proceeding was instituted under section 685 of the charter of the city of New York. (Laws of 1901, chap. 466.) It appears from the evidence on the part of complainant, and the magistrate has resolved the questions of fact "in her favor, that the- parties were married in July, 1904, and. lived and cohabited together as husband and wife for less than one year when she became ill with a loathsome...
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This case comes to this court on a bill of exceptions. The action is to recóver damages resulting from the absorption of the subsurface waters on the plaintiffs’ premises, due to the operation of a pumping plant' by the defendant. The defendant claimed that the plaintiffs’ premises Were located too far from its station to be affected, and to show this was permitted to put in evidence a map made pu...
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This case involves the right of the defendant to a lien for storage of baggage after its arrival at its destination. The plaintiff and his baggage, a small telescope, valise, reached New York, on one of the defendant’s trains at'one-twenty-four a. m., Sunday. At nine a. m. the next day he sent a boy for the baggage, who went to the wrong place, and at two p. m. he himself called for the baggage,, ...
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The defendant appeals from an order denying a motion to vacate an order of arrest, and asserts that the affidavit upon which said order of arrest was granted is insufficient. The action is for fraud. To obtain the order of arrest the plaintiff swore as of his own knowledge that, he purchased of the defe.ndr ant .an oil painting, relying upon .the representation that it was made by a well-known and...
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The defendant laid water mains in a trench in a street for the city arid filled up the trench. While the plaintiff was afterwards walking over or by such filled in trench the- earth sunk under his feet and let his leg down into a hole up to his thigh. The complaint alleges that the'defendant did not fill the trench properly and restore the street to a safe condition. In his charge the learned tria...
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By chapter 379 of the Laws of 1899, which went into effect April 21, 1899, a small part of the territory of the Borough of Queens, City of New York, was detached from the city and made a part of the adjoining Town of Hempstead in the County of Nassau. Nevertheless, in levying the annual tax of the city for that year in the following August it was included by mistake. On October 2, 1899, the plaint...
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The defendant was distributing rails along its track with a gang of men of whom the plaintiff was one — unloading them from a train of platform cars, which were enclosed by low sidings and ends, howeve'r. As the train was about to be started, the men got aboard the cars. The plaintiff sat on the end of one of the cars with his feet on the floor. The rails were shorter than the car, and lacked a fo...
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The usual or.average period of human gestation, i. e., from the beginning of pregnancy to- the maturity of the foetus, when delivery should and -usually does'take place, is 10 lunar months, or 40 weeks, i. e., 280 days. The period from intercourse to- delivery • may not -be identical with that of gestation, but much longer. There is much literature, ancient and modern, in favor of the claim *98tha...
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The case presented by the plaintiff was very much lacking in precision ; but still the jury could have found that the flag sidewalk for a considerable distance where she fell was broken and defective; that there were depressions and holes; that where she fell one set of flags across the sidewalk were higher than the adjoining set; that as she slipped to some extent on a piece of ice her foot was c...
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' While the plaintiff was planing barrel staves on a steam planing ' machine-one of them drew his hand into the planing knives by a sudden jerk. The knives came up through the table. The questions submitted to'the jury were whether the knives should have been guarded, except the. space necéssary for the board to go through, and, if so, whether the plaintiff had assumed the risk caused by the absen...
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The defendant demurred to the complaint, which is for the foreclosure of a mortgage on real property, on the ground that it did. not state facts sufficient. The plaintiff gave notice of motion at the Special Term for motions in Kings County for judgment thereon as frivolous. Instead a decision was made overruling the demurrer ' as upon a trial of the issue of law, and an interlocutory judgment to ...
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Eliza L. Saunders, the life beneficiary, died on or about the 11th day of November, 1905, and the Farmers’ Loan and Trust Company, the trustee named in the will, now prays for a judicial settlement of its account, and for a construction of the clause of the will above recited. There is no dispute as to the -facts in the case. The sole issue -raised is as to the present disposition of the fund held...
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The following is -the opinion of the surrogate:
Church, Surrogate:
This matter lias been before the court on several occasions and the rights of the different parties have never been definitely, determined; . I shall, therefore, deterinine-every .question arising in' Order that this somewhat involved proceeding may be finally disposed of.
■ Cornelius Losee. lived on Long Island, and .about 1850, m...
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The following is the opinion, delivered at Trial Term:
Prior to October 17, 1901, the defendants Francis P. Magoun and Edward V", Van Duzef, together with one George B. Magoun, were copartners, carrying on business as stockbrokers under the name of .Magoun Brothers & Co. On that date, at the request of Camillus G. Kidder, plaintiff's assignor, they purchased for his account on a margin deposited ...
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*120The following is the opinion of the surrogate. Surrogate : . This is a motion by the executor of Bobert B. Willets,. deceased, to modify an order of the surrogate of Westchester county, dated April 30, 1904, assessing and fixing a transfer tax upon the estate of said Willets, and to • direct the State Comptroller to refund a portion of the transfer tax heretofore paid, • , ■ From the moving pa...
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The plaintiff sues the defendant corporation for salary, claiming under a contract with it. The trial court excluded the contract because it was not the contract of the corporation. It was signed by the president and the vice-president of defendant, although not in their representative capacity. In the body of the instrument it was, however, recited .that they were acting in the capacity of the ■ ...
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This is an appeal from an order granting the relator’s application for a peremptory writ of-mandamus commanding the (slier iff of the. county of Kings forthwith to reinstate him to the position of assistant deputy sheriff in his office; The relator was removed without an opportunity of making an explanation, and the. grounds of his removal were not entered upon the records of the department of- th...
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The scheme of the statute for the taxation of special franchises (incorporated in the. Tax Law) is that they are assessed at their value without any diminution for any local public charges thereon, and that such charges are tó be deducted from the tax when levied. *131Section 46 requires that if there lias been paid to the city, town or ■ village for the tax year, under any agreement therefor, ox ...
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This action is on a promissory note- for $400. -The defendant made it to’:the plaintiff’s son, and lie endorsed' it to the plaintiff; The plaintiff’s son assigned to ;the defendant for;- $700 a contract which he had for the conveyance! of real estate to.him. The defendant paid $.300 of this in cash, that being the amount which the’soni’had paid "oh account when the contract was made, and for the b...
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The defendants employed areal estate agent to: secure a. purchaser of their land-, and this is an action for his commission. He did not procure a purchaser. He brought to the defendants two persons. who obtained from them a-written agreement' to sell the land to such persons, but the latter signed no agreement, and afterwards refused to sign an agreement or take a deed. The judgment should- be aff...
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The plaintiff testified that he was crossing the street on ,the crosswalk at the intersection of two streets; that he crossed the downtown car track; that the driver of a horse and wagon going up town called out to him, and he stepped back and in four or five seconds was hit by a car going down town; that he stepped back because the horse was going fast and rearing, and he feared he would run over...
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The defendant uses barrels and casks in its business. A part of its establishment was fitted up with machinery for -a cooperage. The defendant had a contract with, the plaintiff’s employer by' which- he was to use such cooperage to repair the barrels it used at specified prices. It agreed in the contract to furnish and maintain all of the machinery complete and keep it in repair. The plaintiff was...
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The plaintiff was at work feeding a mangle. She had to spread the linen piece out upon a feed apron, which carried it along to the rollers and steam heated- cylinders of the mangle, through which it went. In someway the plaintiff’s hand got in between-the first roller and the cylinder. She was unable to tell how it happened. She did not need in the' work to put her hand against the cylinder or rol...
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These proceedings have been instituted pursuant to section 2707 of the Code of Civil Procedure -and .the sections following, which provide for the discovery and delivery of property belonging to the estate of a deceased person but withheld by another. The process is summary. On presentation to the surrogate of a petition made by an executor or administrator, setting forth facts tending to' show ' ...
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This action is brought by the commissioner of public charities for the city of New York for the boroughs of Brooklyn and Queens. It is brought upon an undértaking given upon the conviction of the defendant Michael Hormoyle as a disorderly person in having failed to provide for his wife and children, who were in danger of becoming a burden upon the public. The defendants are Hormoyle and his surety...
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The.following is the opinion of Mr. Justice Garretson : ■ That the conveyance of the premises in question on December 2nd 1885, by Joseph Lewis, as trustee under the will of Philip Chorr- . mann, deceased, to Frederick Baclnnann, and the reconveyance by *147Baclnnann to Lewis individually on the same day, was a constructive fraud, and that the; transaction was not void, but merely voidable- at the...
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This action was brought by the plaintiffs, claiming to be the holders prior to maturity and for value of seven promissory notes. . made by the" defendants. On- the evening of the last day for defendants to serve their answer, a copy thereof Was deposited in a post-office box on the corner of Forty-third street, and Seventh avenue, addressed to the attorney for the plaintiffs* at 42 Broadway.Oh the...
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Plaintiff is the wife of defendant and brings this action for a separation on the grounds of cruelty. Her testimony shows that on several occasions the defendant kicked and beat her and frequently falsely accused her of adultery and. other misconduct. While denying most of these accusations the defendant partially admits some of them. We are of the opinion that the plaintiff established good groun...
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The plaintiff began two actions by separate attorneys against the Foundation Company for damages for personal injuries. To the complaint in the second action the defendant pleaded the pendency of the first action as a bar. The attorney in the second action moved in that action to set aside the summons and all subsequent proceedings in the first action, and the motion, after a reference, was grante...
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This defendant was indicted for conspiracy under section 168 of the Penal Code which provides that “ If two or more persons conspire, either 1. To commit a crime; or * * * 6. To commit *154any act injurious to. the public health, to public morals, or to trade or commerce, pr for the perversion or obstruction of justice, or of the due administration .of the lawsEach of them is guilty of a misdemean...
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The original order denying this motion was entered on January 7,1907. On February 2, 1907, the defendants appealed from the. order. On the 22d of March, 1907, an- order was entered resettling the order of January 7, 1907, and by this resettlement the order of January seventh was materially changed. Affidavits not recited in the first order as affidavits upon which the motion was made were inserted...
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This is a submission under section 1279 of the Code of Civil Procedure. It appears that on" the 28th of June, 1905, the plaintiff was, and now is, the owner of two consolidated sinking fund mortgage bonds of the defendant, each for $1,000, dated July 1, *1701875, maturing July ».l, 1905, and which contained the .following, provision The obligor also agrees to transfer to the bearer at Ins option t...
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This, case comes before the court on an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure: From these facts it appeared that on the 22d of Uovember, 1897, one Ida Jetter opened an account with the defendant by depositing with it a sum of money-; that she thereafter deposited other sums of money and made various withdrawals therefrom, and there is now standing to her...
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The plaintiff was á customs broker and Simon Auerbach & Co., importers of tobacco, were his clients, who claimed that they had been compelled to pay an excess of duty on certain importations of tobacco which the government was under obligation to refund to them.
Amongst the duties of a.customs broker to his clients, as detailed by the plaintiff, are those of looking out for his clients in a genera...
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• The action is for the. recovery of $2,000 loaned by plaintiff to defendant. The answer does not deny the borrowing of the money, *180bat pleads a set-off and counterclaim 'of $10,000 for professional services rendered as attorney, and,asks judgment therefor. On the trial the defendant proved the performance of certain services, and testified to their value, and was supported as to such value by ...
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This is an appeal.from an order of the Special Term awarding to the plaintiff a counsel fee of fifty dollars and alimony pendente lite at the rate of ten dollars per week. The action is brought for' a.separation on the ground of the alleged abandonment of the plaintiff by-the defendant. The summons was dated September 17, 1906, and was served on the eighteenth of September. The complaint was verif...
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This action was brought upon a written guaranty of the performance of a building contract. The contract was made on the 3d day •of July, 1899, between one Hoagland and the plaintiff’s firm,-under • which said firm agreed to finish all the stone work for the fronts of ■four certain buildings on One Hundred and Seventeenth street, "then unfinished, and to supply the necessary stone therefor-for the ...
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If the situation so permitted we would follow the rule laid down in Baker v. Potts (73 App. Div. 29), wherein it is held that it is not of universal application that an execution must be issued and returned as against all the judgment debtors as a condition precedent to an action in equity to reach property fraudulently transferred. The exception to the rule, as there pointed out, is based upon th...
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This proceeding was instituted under section 28, subdivision 2, of the Liquor Tax Law,* upon the petition of Adam A. Schopp. ■ An order to show cause was issued, returnable at Special Term December. 19,1906. The respondent, Breslin, appeared and made a motion to dismiss the proceeding on the ground’ of the insufficiency of the moving papers. The petitioner moved for the appointment of a referee to...
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The action was brought against the Long-Acre Square Building Company and others, defendants, to foreclose a mortgage given by the said company on a leasehold. The defendant corporation, the mortgagor, did not appear. .The defendant .corporation has no business and no" property, except the sum of $238.81 now in its treasury .as an unexpended balance, and an, alleged claim to a right of redemption f...
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This was a motion made by the board of rapid transit commissioners to- make the city of New York' a. formal party to this proceeding. This application is to approve the report of the commissioners, authorizing, the change of route of the subway under Park avenue, between- Thirty-third and Forty-second streets. The question before the court is whether or not this report should be confirmed. Public ...
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This action was brought to recover damages for personal injuries, The complaint was dismissedát the close óf plaintiff’s Case and she has appealed. The evidence offered by her tended to show, and would have justified the jury in finding, that on the 12th Of September, 1903,between nine-and ten o’clock in the morning, the plaintiff, . while standing on the sidewalk in front of á building situate at...
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This was an action in the City Court to recover damages for personal injuries claimed to have been the result of defendant’s negligence. The case having been submitted to the jury, after deliberation they returned and reported to the court that they had found á verdict in favor of the plaintiff for the sum of fifty dollars. Counsel for the .plaintiff moved to set the verdict aside. The court said:...
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It appears from the record that one Ehrmann began an action to foreclose a mortgage on the property in question which proceeded ’ *210to judgment and sale and. resulted in a surplus of over $14,000 deposited with the chamberlain. Plaintiff Hookey began an action to foreclose a junior mortgage in which defendants Greenstein and Hirscli set up the defense that the mortgage sought to be foreclosed wa...
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• The question upon the merits presented by this appeal'is whether thp prdéró drawn upon ■ "W"-. & J, Sloane. by Grissler 4? Sons and *217accepted by. the former operated as an equitable assignment of the funds .then due or to become, due from, tlie original contractors in such a manner as to defeat the.rights of the plaintiff under the Lien Layv. We are of the opinion that Under the law as it exi...
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Subdivision ,8 of section 4 of the Bailroad Law (as amd. by Laws of 1-892, chap. 676) provides that a corporation .shall have power “ to regulate the time and manner in which passengers and property-'shall-be transported, and the .compensation, to be paid therefor.” This power must be exercised in subordination to the law and- within reasonable limitations;- There came a time in the history of the...
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The appellant has been convicted of the crime- of grand larceny in the second degree in obtaining goods of the firm of Meyer & Co. by means of false arid fraudulent representations respecting his solvency. No question is raised as to the. sufficiency of the indictment, and the rule is well established by authority that in cases of ' this character, where the intent is a fact to be arrived at, it i...
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The defendant was indicted for' the crime of abduction, charged as a second offense, and has been sentenced to twenty years in the State prison upon his' conviction. The evidence shows that the defendant had been previously convicted of the crime of assault in the second degree, and had served a term in a State prison, from which he "had been pardoned: He is charged in the indictment .with having ...
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On the till day of February, 1905, the plaintiff and defendant •entered into a contract in writing,.in which the defendant promised ■ to sell to- the-’plain tiff,- in consideration of $22,000,.“ all tli¿ premises known as Nos, 165 and 167 East One Hundred and Eighteenth *239' street in- the city of New York,” and the plaintiff agreed to prir- ■ chase such premises and to pay the purchase, price in...
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The question presented upon this appeal depends, upon the construction to he given section 9 of chapter 489 Of the Laws of 1867; . and section 2 of chapter 855 of the Laws df 1868. By the-act Of 1867 the West Side and Yonkers Patent Railway Company was authorized- to construct an elevated railroad id the city of New York. Section 9 of that act provided that “ the said- company shall pay a sum of f...
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This action, which was commenced on. the 14th day of September, 1895, was to recover from the defendant for .the conversion of certain bonds by the defendant. The plaintiff made and executed ■ to the defendant as trustee a mortgage to secure the payment of ten bonds of $1,000 each. After this triortgage was executed and recorded the ten bonds were, on the 21st, day of September, 1886, in the posse...
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This action was brought to recover damages for breach of a contract of employment whereby the plaintiff was employed as general *263manager of the defendant at a salary of $12,000, Mexican money, yearly. The contract was in writing and dated the 4th day of May, 1895, and -recited that the party of the first part (defendant) had purchased the mahogany and export business formerly owned and conducte...
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The action is brought to recover the property of Adelheid Vol-hard received by her husband, the defendant’s testator, under the last will and testament by which she gave and bequeathed to her husband all her real and personal property so long as he should live, with a provision that after the death of her said husband the property should be- equally divided between her two children, Frederick . an...
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The relators own a piece of property on One Hundred and Sixty-eighth street and Gerard avenue. The title to Gerard avenue had been acquired under proceedings instituted by the city of New York, the fee having vested in the city in the year 1888. Subsequently the' city discontinued the use of a portion of Gerard avenue in front of the relators’ property, leaving a portion of the avenue as then used...
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' The petitioner retained James A. Allen and Roger ..Foster to commence an action against the De Forest Wireless Telegraph Company. ¡Such retainer provided that Foster and Allen should receive for their services one-third of the proceeds of said • litigation ; that they should make no other charge for their services and no charge should be made, except in ease of success, or from the sale of certa...
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The relator was incorporated by chapter 279 of the Laws of 1859.* This act-authorized Peter Cooper, of the city of New York, to convey to a body corporate, thereinafter created, a block óf land in the city of New York for the purpose of procuring and maintaining scientific collections, etc., and for other purposes. The deed by *281which the property was to be conveyed was set out in full. By it th...
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The defendant and one O’Brien were indicted for an assault in the first degree upon one Abraham'Weinberg by means of a loaded pistol which was discharged at the said Weinberg. O’Brien pleaded guilty to assault in the third degree. Maggiore was tried and convicted and appeals. One. Weinberg testified that he conducted a candy store at_ No. 2091 Second avenue, in the city of New York; that the priso...
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I do not see why this defendant should hot have been allowed to serve an' amended answer. The cáse first appeared' on the calendar of the' October term, 1906, when a motion was made to place the case on the short cause calendar. After that motion was granted and when present counsel was retained to try the case he, on the twenty-ninth of October, asked plaintiffs’ attorney to consent to allow defe...
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.Henry Aiders died on the 1st of April, 1899, leaving no widow and no descendants. His' next of kin .were certain nephews and nieces and there were also the descendants of uncles and aunts. Letters were issued to the public administrator who filed his accounts, and by final decree settling the accounts, five-elevenths of the estate was paid to.the nephews and nieces and six-elevenths directed to b...
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This order adjudged the defendant guilty of contempt in willfully refusing to. be sworn or to affirm and testify before a referee in proceedings supplemental. to judgment, The-plaintiff obtained, a judgment against the defendant, an execution upon which was issued and returned unsatisfied; whereupon an order in supplemental proceedings was issued requiring the defendant to be examined, and as the ...
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; On September 12, 1905, the parties to this action entered into a ' contract evidenced by a letter written by the plaintiff to the ■ ¿defendant, accepted by the defendant and which is as follows: “Sept. 12/05. “ Hr. Henry E. Dixey : “ Dear Sir.;—I hereby engage you as a star for a period of three ■years, you to receive the first year in lieu of salary, eight (8) per cent of the gross receipts and...
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Elbert B. Hamlin, as trustee in bankruptcy for the' defendant corporation, in an action to foreclose a certain mortgage for $25,000, on which a payment of $10,000 had been made, and who had been permitted to intervene and defend in behalf of the corporation, defaulted upon the trial by reason of a misunderstanding between himself and the attorney for the plaintiff. ■ An order opening tlie default ...
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This appellant wa's indicted with two other persons- for grand larceny in the first degree. The indictment contains nine counts, but the district attorney elected -to proceed upon -the first and second counts. The first count is based upon the'larceny of- the sum of $7,500 of the Mutual Reserve Fund Life Association, and the second count alleges that the three defendants, jointly having, in their ...
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■ Plaintiff’s complaint alleges that he maintains á private deér preserve'in this State,, at Mill Brook in Dutchess county* consisting of about 2*400 .acres, securely fenced, within which lie placed some years ago-several “ domesticated ” deer purchased by him without this State, and that they have rapidly increased- in number, and .to such an extent that in order to preserve his herd it is necess...
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By her industry and economy the plaintiff had acquired real ■ property of the value of about $20,000, besides some additional money, with which she had made unfortunate investments. On the 5th day of April, 1900, without any money being paid therefor, she conveyed this real estate to the defendant, her daughter and only -child, the conveyance containing a clause that the-defendant should execute t...
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Whenever it appears that a party under examination before trial cannot testify without reference to his books and papers it is competent to compel tbeir production by subpoena duces tecum. (Gee v. Pendas, 87 App. Div. 157.) Unless this could be done the attempted examination would' in many cases be defeated'. Ordinarily the occasion for the issuance of such a subpoena does not arise until the exam...
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The defendants Seff and Lauterstein demurred to the amended complaint herein, upon the- ground that it appeared, upon the face thereof that several causes of action had been improperly united. The court at Special Term sustained the demurrer, and the decision directed the entry of an interlocutory judgment requiring the plaintiffs to sever the action into four separate actions, the defendants in e...
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The action is brought to recover damages for breaches of contracts to sell and deliver goods, wares and merchandise. The .. defendants in their answer admit the incorporation of the plaintiff and that the defendants are copartners, but deny the other material allegations of the complaint and. allege that the contracts were made without their authority. The plaintiff is a foreign corpora- • tion, o...
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This is an action for libel. The ground of the demurrer is that the facts alleged do not constitute a cause of action. No special damages are alleged. The question, presented by the demurrer is whether the article alleged to have been published of and concerning the plaintiff is libelous per se. The plaintiff alleges that it is a domestic corporation lawfully engaged in conducting in the city of N...
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The defendant was jointly indicted with two others for. murder in the first degree, in feloniously causing the death of one Chin Yen, by shooting with a loaded pistol. Upon the trial the evidence tended to show that other pistols were fired at about the same time; and it being doubtful whether the defendant fired the shot which caused the death, the district attorney withdrew the charge of homicid...
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The defendant, a foreign, corporation organized under the laws of the State of Illinois, became insolvent in ¡November, 1906, and on the. nineteenth of that month the Chicago Title and Trust Company of Chicago was appointed receiver of all of defendant’s assets, and on the same day the defendant executed an assignment of all its assets to the said trust company. It is expressly conceded by'the par...
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The petitioner appeals from an order of the Special Term denying its motion to confirm the report of commissioners of estimate and assessment appointed in this proceeding, and setting aside such , report and referring the matter to new commissioners. The grounds for such order, as recited therein, are “for. irregularity and error of law in .the proceedings before the commissioners, and upon the fu...
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This action was begun. against William J. O’Brien, Charles H. Barson and William G. Barson upon three causes of action; one for forcible entry and detainer; one for assault and battery', and one which appears to be designated as a cause of action for damages-for the conversion of personal property, and which for the purpose of this appeal we shall assumé to be such. William G. Barson has died, and...
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"While this court has somewhat relaxed the strict. rules which have heretofore so operated as to greatly restrict the right óf a party to examine his adversary as a witness before trial, it has not been our purpose to permit the disregard of the provisions of law relative to the facts necessary to be shown in order to obtain an order for such examination,-or to permit such an examination to be had...
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In this action by the Attorney-General for the removal of the defendants as directors of the Zeltner Brewing Company, the defendants have demurred to, the complaint for general insufficiency, and now appeal from an interlocutory judgment overruling their demurrer. . • The complaint sets out with considerable detail a so-called syndicate agreement between the defendants and one De .Witfc . C, Flana...
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The action .is for damages for breach of. a contract. - The‘contract is attached to and made part of the complaint., It appears that plaintiff had an. agency contract with, the Warren Electric Manufacturing Company of S'andusky, 0., and the purpose of the contract was to provide for transferring that agency'contract to. the Turbine Engineering Company which was apparently controlled by .the defend...
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This action is against defendant as indorser of a promissory note made by Albert K. Keen to plaintiff. The making of the note and plaintiff’s, titje are admitted. x
The defense upon which defendant relies is that he was induced to become an indorser through false arid fraudulent representations made to him by plaintiff, and that but for such representations, which he believed to be true, he would ...
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The plaintiff, a young woman, was a passenger upon one of ■defendant’s, trains. She arrived at her destination at Forest .Hill, H- J-, at about half-past seven o’clock in- the evening of September.5, 1902. It was then about dusk. At Forest Hill the station stood on the south side of the railway, and there was a platform «extending along the southerly side of the east-bound track. There *372■was no...
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. The plaintiffs appeal from an order requiring them to deliver to. defendant 2,100 shares of the common Stock, of. the Manhattan Transit Company, upon receiving.from the defendant the amount.of a judgment recovered herein by plaintiffs against defendant, with the costs of appeal and interest. The circumstances leading up to this order are peculiar. The plaintiffs are cotton brokers and acted as s...
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This is an action to foreclose a mechanic’s .lien, filed against moneys due or to' grow due the defendants, the surety companies, which, for brevity, will be designated the fidelity and bonding companies respectively, on a contract between the Armstrong & > Bolton Company and the city of New York,, bearing date, .the 20th. day of April, 1899, for the construction of the high and low-pressure steam...
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Tbe plaintiff, owner in fee of" a. plot of land abutting upon the northerly side of One Hundred and Fifty-seventh street between *395Broadway and the Boulevard Lafayette in the city of New York, claims, and by this action seeks to enforce, easements of light, air and access over the land in front of his property constituting a part of One Hundred and Fifty-seventh street as the same is shown on th...
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On August 10, 1870, James Lenox conveyed a plot of land, 102 feet 2 inches On Madison avenue by 195 feet on Seventy-third street, to one William Lalor by á deed containing the familiar covenant against nuisances, to. which was supera'dded a clause to the effect that the grantee “ will use or suffer the said'premises! to be. used for the erection of first-class private residences only.” It does not...
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The plaintiff sues, upon a policy of fire insurance purporting to insure him against the loss of profits upon property held by .him under lease. The plaintiff leased from Max Raymond and Aaron I. Raisman three adjoining apartment houses in the city of New York for a term of four years and seven months. The houses were so constructed that they comprised thirtyffour suites of apartments, besides sev...
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In this action in the nature of quo warranto the People of the State of New York sue by the'Attorney-General without a relator. The purpose of the action two-fold. It is sought to obtain a judgment ousting the defendant from the office of mayor of the city of New York and declaring that William E. Hearst was duly elected to that office and now has. the legal' right to hold the .same. The complaint...
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The facts are not in dispute. The plaintiff sues as assignee of Frank E. Holman, and the law firm of Steele, De Friese & Frothingham. ' Thé defendant is the owner of a patented process for galvanizing metal. On September 13,1900, defendant made a contract with plaintiff’s assignors whereby Holman was employed “ to represent (defendant) as special agent in negotiating and granting licenses to indiv...
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The plaintiff appeals from a.n order precluding him.from giving evidence of an accouht alluded to in paragraph 5 of his complaint, unless within five days lie serve a verified copy of said account on the defendant’s .attorneys. • ■ ■ The plaintiff is a'dealer in coal, and the defendant, at the times stated in, the complaint, sold coal for him under a contract. ' . - ’ The 5th paragraph of the comp...
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In this action for an interpleader the only controversy is between the defendants J. Charles Walton and Minnie A. Jacqnelin, who both claim a fund held by plaintiff as trustee for Henri L. Jacqnelin. As the foundation of his claim Walton sets up an assignment made to him by Henri L. Jacquelin -on June 1, 1888. 'Minnie A. Jacquelin does not deny the assignment, but on the contrary admits that after...
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The plaintiff has so framed its complaint as to set out two complete causes of action : One in equity for an accounting concerning the disposition of a fund over which, as it is said, the defendant had custody and control; the other at law for damages claimed to have resulted from the wrongful or negligent acts of defendant, in auditing bills against the plaintiff, payable out of its general funds...
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The plaintiff has recovered a verdict for the damages suffered by her in consequence of having stepped into a hole in the pavement on the easterly side of Broadway between Seventy-first and Seventy-second streets in the city of New York.
At that time the street was in great confusion. Broadway was excavated from curb to curb for the construction of the subway, and at this point the excavation exte...
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An' interlocutory judgment of divorce was entered against the defendant o'n November 21, 1905, after a jury had found her guilty *437of adultery. The guilt of the defendant was gross. ' Such judgment gave the .exclusive custody of the children to the husband. On May 14, 1906, the defendant tried before another judge to get custody of the children by means'of the writ of habeas corpus, but failed a...
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This action is brought to recover damages for malicious prosecution. The plaintiff had purchased from the defendant, in the borough of Brooklyn, to be used at his plac'e of residence in that borough, certain furniture, to-be paid for at stated intervals in small installments, and had given to the defendant a chattel mortgage on the property purchased, in order to secure the payments. Before the pu...
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The testatrix left personal -property only.- She left neither parent nor descendant surviving her. 'Both - she and "her husband were victims of the disaster which resulted in the burninsr- and *441wreck of the steamer General Slocum on the forenoon of June 15, 190.4. Her body was recovered on the day óf the accident, and that of her husband about one week afterward. The question chiefly . litigate...
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The action is for negligence. The plaintiff attempted to cross .Third avenue at Twénty-tliird street in the borough of Manhattan from west to east- upon the south crosswalk between two moving wagons of the defendants. As travel in the-street was impeded by snow therein, defendants’, second wagon was being helped along by a rope attached from the first wagón. The plaintiff came against the rope, wa...
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This action was brought in the County Court of Westchester county to recover for personal inimies claimed to have been sustained by the plaintiff in consequence of defendant’s negligence. A written agreement was executed by the plaintiff and his attorney prior to the commencement of' the action, which provided among other things that the attorney was to: receive as compensation for his services on...
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Page 3962
The only question presented on this appeal is whether the appellant,. the widow of the testator, is entitled to interest on the sum of $10,000 from the date of her husband’s death. The learned surrogate has'held that she is only entitled to interest on $4,000 'of that sum from the date of the death of' the deceased, and that the balance, that is, the sum of $6,000, is to be regarded as. a general ...
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This is an action to foreclose a mechanic’s lien, brought, by a sub-contractor against Koeppel Brothers, contractors, and Glass, the owner of the premisos. The. building which was the -subject of ■ the contract was destroyed by fire before completion'. The trial *459proceeded upon the concession that if Koeppel Brothers could not recover against Glass, the plaintiff could not. Koeppel Brothers by ...
Views: 0
.TheAppellant, arraigned for a grand larceny, was held and was committed to the sheriff of Kings county to answer to the grand ■ jury. The grand jury, by its foreman,-wrote on the papers: “ Sent to Court of - Special. Sessions by Grand Jury to be disposed of as petit larceny. December 7, 1906.” The papers further show: “Received Court-of Special Sessions, Second Division,Dec, 7,1906. *463Deceived ...
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The plaintiff was a clerk in.the department, of finance in the city of New York at a yearly salary of $1,800. On April 30, 1902, the board of estimate and apportionment of the city by resolution of a general scheme fixed the salary at $1,500. The plaintiff remained ' as a clerk in the department, discharged the same duties and accepted the salary as thus reduced, receipting for it under protest. H...
Views: 1
Page 3966
The alternative writ recites in detail the franchise and contract under which it is claimed that the respondent is under legal obligations to lay water mains, place hydrants, and supply water in the village of Pelham Manor, the relator, and its refusal in certain particulars to comply therewith in each of the said particulars. The lltli subdivision of the return alleges in hceo verba a clause of t...
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The complaint, is simply for $5,000 had and received by the defendant of the plaintiff. The plaintiff died before trial,'and his e-xecutor, his widow, was substituted. The following facts are undisputed, for, both sides proved them on the trial, viz.: On May 10th, 1903, the decedent was at the defendant’s place of business, and met the defendant and one Kotz there. Both the defendant and Kotz were...
Views: 0
• 'The demurrer that a cause of action for contract and- another for tort have been improperly united, and that the complaint does *478not state facts sufficient, was overruled below.. The complaint' is that the plaintiff had placed in several newspaper establishments, including that of the defendant, certain pictures for publication on a stated' future day, under an agreement that he was • to be ...
Views: 0
This is an action to foreclose a mortgáge on real property. The complaint alleges the assignment of the bond and mortgage to the plaintiff by the mortgagee, the Harlem Savings Bank. Thé answer consists of an unscientific, rambling statement, such as á .layman. might possibly draw, in the middle of which is this: “Upon "information; and belief this defendant"denies that the Harlem-Savings Bank sold...
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Those claiming under the deed of conveyance put in an answer denying the mortgage and asserting their title. The learned trial judge held that the mortgage was delivered in the lifetime of the mother, the mortgagor. The delivery of the key of the box in which she kept it to the third person with instructions to get it and deliver it was a delivery. It was a delivery to him to deliver to the mortga...
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