by poison, yet the plaintiff was the person from whom she received the dose
that killed her, that it had been intimated that a female friend of the mur-
dered woman had been poisoned by the plaintiff at a place named, that that
woman had shown similar symptoms, that these facts had some bearing on the
trial for murder, and that residents of the place, named as the scene of the
other alleged poisoning, who recalled that matter, believed that in the interest
of justice they might have to come forward and tell the story to the jury of
the murder trial. Cornish v. Bennett, 688.
1. Determination of a board of town canvassers as to a vote on local option
conclusive on an application to cancel a certificate.- The determination of a
board of town canvassers as to the result of the vote at an election at a bi-
ennial town meeting upon the question of the sale in the town of liquor by
hotel keepers is conclusive upon a justice of the Supreme Court in a proceed-
ing taken before him to cancel a liquor tax certificate upon the ground that its
holder is not entitled to hold it. A statement showing a different result, filed
with the county treasurer, by a town clerk who came into office long after the
election is a nullity. Matter of Brown, 157.
2. Small and cheap buildings designed solely to defeat an application for a
dwelling."- In a
proceeding to cancel a liquor tax certificate for alleged false statements con-
tained in the application, a building, ten feet by sixteen, located on an alley-
way, occasionally used by a voluntary unincorporated religious association
which had other regular headquarters, and erected and used to defeat the
granting of the certificate in question is not, within the meaning of the statute
(L. 1896, chap. 112, § 17 as amd.), to be deemed "a building occupied exclu-
sively as a church," nor is a house, costing thirty-five dollars, consisting of one
room, and hurriedly removed to its present location on the day of the applica-
tion and in order to defeat it, to be deemed "a building
occupied ex-
clusively for a dwelling." The court will not permit a building, insufficient
to furnish a basis for such an application, to be used to work a revocation of
Matter of Vail, 392.
certificate and intended to constitute a "church " and a 66
See City of New York.
LIVERY STABLE KEEPERS.
See City of New York.
LOCAL OPTION.
See Liquor Tax Law.
Idiot cannot be sued personally for her maintenance.― An idiot from birth
cannot be sued in an action on contract for her past maintenance. The inter-
position of an answer, in the form used in the case of an infant, by an attorney
designated by the county judge as one to whom the summons and complaint
must also be delivered in behalf of the idiot and that attorney's consent to a
judgment, proposed to be enforced against the land of the idiot constituting
her only property and insufficient to pay the debt, does not assist jurisdiction
or validate the proceeding. Quare, whether a committee appointed in lunacy
proceedings could pay for past maintenance. Bicknell v. Spear, 389.
Peremptory. A writ of peremptory mandamus will not issue in a doubtfu
case. People ex rel. Auchincloss v. Pierce, 332.
Attachment Amount where a servant wrongfully discharged sues before
expiration of the term - Remedy where the amount is excessive.- Where a
servant, hired by the year and as alleged wrongfully discharged at the end of
six months, sues, by an assignee, his nonresident employer one month after his
discharge for breach of the contract, the measure of damages is prima facie
the balance of the year's salary and, for it, the assignee is presently entitled
to an attachment against the employer's property. Semble, that if, by reason
of the servant's obtaining other employment during the unexpired term, the
attachment should prove to have been issued for too large a sum the remedy
of the employer would be to move to reduce the amount of the attachment but
he could not have it vacated. Cohen v. Walker, 114.
MISDEMEANOR.
See Criminal Law.
MONEY PAID, RECEIVED, ETC.
What rights are personal - Foreign will as to personalty not subject to col-
lateral attack.-Rights, which the ancillary executor in this State of Richard
Garvey, who died a resident of Suffolk county, Mass., and was an heir of
Andrew J. Garvey, obtained under an agreement of settlement, made after the
death of Richard Garvey, of a dispute which arose here in the lifetime of the
widow and life tenant of the income of the realty of Andrew J. Garvey be-
tween the remaindermen, certain charitable institutions, and the excluded
heirs, who claimed that his will violated Laws 1860, chapter 360, forbidding a
person from willing more than one-half of his estate to charities, etc., are
personal, being derived from the agreement and not from heirship. Therefore
where the will of Richard Garvey has been duly probated in the probate court
of Suffolk county, Mass., his daughter, who did not join in the agreement of
settlement, cannot, as heir of Andrew J. Garvey, where she does not allege that
his will was invalid, maintain an action in this State against her father's an
cillary executor to recover all the moneys, paid him as such under such rights,
on the ground that her father's will was obtained by undue influence — and
this because the decree of the Suffolk county probate court cannot be attacked
by her collaterally and also because her father might have owed debts and she
would then be entitled only to an accounting as to the surplus of his estate.
Garvey v. Horgan, 164.
MOTIONS AND ORDERS.
See Jurisdiction.
MUNICIPAL CORPORATIONS.
See Highways; Injunction; Laches.
MUNICIPAL COURT OF NEW YORK.
Exception to the rule that one justice cannot review another's decision-
Code C. P., 3063.- The rule that one justice of the Municipal Court of the
city of New York cannot review the decision of another justice of that court
does not apply to a case where, after the defendant's motion to open his default
has been denied, as he alleges, upon affidavits surreptitiously handed to the
MUNICIPAL COURT OF NEW YORK—Continued.
justice by or for the plaintiff after the argument of the motion and because
of the justice's misconception that the defendant had paid the judgment vol-
untarily, the defendant applies, without leave from that justice, for leave to
reargue and for a reargument of the motion to another justice brought, within
eighteen days, into the Municipal Court district by the system of rotation in
the assignment of its justices, who granted a reargument and also vacated the
order of the first justice denying the motion to open the default- -as the mo-
tion before the incoming justice is under the circumstances to be deemed prac
tically a separate motion made on different or additional facts. Stromberg v.
Di Salvo, 139.
Contributory.— A driver, with his horse under control and approaching from
a cross-street, a street railroad track in the city of New York, who in the day-
time sees, a block distant from the railroad crossing and again at a distance
of one hundred feet from it, a motor car approaching at the rate of twenty
miles an hour with its motorman not looking ahead is guilty of contributory
negligence if he persists in attempting to cross the track when the motor car
was not more than thirty feet away from him and is injured by the ensuing
collision. Seggerman v. Metropolitan St. R. Co., 374.
NEGOTIABLE INSTRUMENTS.
See Actions; Insurance (Life).
Terms in granting where the plaintiff's verdict was against the weight of
evidence. A defendant corporation, granted a new trial in a case where a
verdict against it is set aside as against the weight of evidence, must stipulate
that upon its final recovery its costs shall not be taxed against the plaintiff
and that if the plaintiff finally recovers entire costs shall be taxed in his favor.
Seggerman v. Metropolitan St. R. Co., 374..
NEW YORK CATHOLIC PROTECTORY.
NEW YORK CITY.
See City of New York.
NEW YORK STATE REFORMATORY.
See Criminal Law.
NOTARIES PUBLIC.
See Perjury.
New York city - Special hack stands, when a nuisance.- In view of the
fact that a public hack stand has existed for some years in front of Rectors
hotel in that part of Broadway, Manhattan, known as Long Acre square, the
city of New York has no power, upon the consent of the hotel proprietors, sub-
sequently to license three special hack stands in front of the hotel and along
the curb. Such an additional obstruction of the street is under the circum-
stances not justified by public convenience, and is a nuisance. The rights of
the hotel proprietors in the street are no greater than those of the special
hackmen. Odell v. Bretney, 603.
OFFICE AND OFFICER.
See Criminal Law.
Judicial settlement. Where an executrix is accounting in her husband's
estate and he and she have been successively the legal representatives of an
other estate a person interested in that estate is a proper party to her ac-
counting and may file objections to her account. Matter of Walton, 723.
Proof of its existence.- Evidence deemed sufficient to show that a special
partnership existed between the plaintiff, an attorney, and the defendants,
attorneys, in regard to the prosecution and collection of certain claims. Leeds
v. Ward, 674.
Rights determinable therein-Irregularities in a sheriff's sale of realty
cured by lapse of time—Inchoate right perfected under the doctrine of rela
tion. Since the passage of Code C. P., § 1543, the Supreme Court may, in an
action of partition, determine not only the rights of cotenants as between them-
selves, but also those of a stranger to the title, claiming as assignee of a sher-
iff's certificate of a sale of the premises made under an execution. Where
forty-nve years have elapsed since the sale it will not be permitted to be in-
validated by the fact that the sheriff sold under an execution which incorrectly
stated the date when the judgment against the premises was docketed in the
county where they were situated, nor by the further fact that he sold the prem-
ises as a whole when he should have sold them in parcels. Where more than
forty years have elapsed since the sheriff issued a certificate of sale to the
purchaser and since the death of the latter intestate, and no administrator of
his has ever demanded a deed, the sheriff's successor in office may within Code
C. P., §§ 1472, 1473, lawfully execute a deed to the assignee of the heirs of the
owner of the certificate and that deed will relate back to the time of the sale.
Dixon v. Dixon, 652.
Surrogate's Court — Construction of a decree directing payment of a dis-
tributive share to the court. A decree directing an administrator, if unable
to pay a distributive share to the distributee, to pay it "to the surrogate's
court" of the county must be taken to mean payment into court in the manner
prescribed by Code of Civil Procedure, section 2537, and therefore payment to
the surrogate himself cannot discharge the administrator. Matter of Sackett,
463.
PENAL CODE.
$96. People v. Martin, 67.
$265. People ex rel. Bedell v. De Mott, 171.
§§ 363, 3636. Loeb v. Firemen's Insurance Co., 107.
§ 666. People v. Patterson, 79.
§ 713. People ex rel. Sanfilippo v. New York Catholic Protectory, 660.
Not committed by a false oath to a certificate required only by a foreign law
- Penal Code, § 96.-A false oath, taken before a notary public of and in
the State of New York by an officer of a foreign corporation to a verified
certificate as to the amount of capital stock paid in in cash, required by the
laws of the foreign State, but not by those of this State, is not perjury
within Penal Code, § 96, declaring guilty thereof any person who swears that
any certificate by him subscribed is true on any occasion in which an oath
"is required by law, or may lawfully be administered," and who on such oc-
casion willfully and knowingly states in his certificate any material matter to
be true which he knows to be false. To make a false oath perjury within the
statute it must have been taken in a judicial proceeding, or in one authorized
by law, or on an occasion when an oath was required by the laws of New York,
or it must have been administered in pursuance or by authority of said laws.
As between the States of the Union their laws have no exterritorial force. A
foreign law cannot be permitted to give a domestic notary public such author-
ity to administer an oath here as that its falsity will constitute perjury here
in a case where our laws did not require the oath. People v. Martin, 67.
See Coroners; Insurance (Life).
1. Demurrer for misjoinder of defendants unauthorized. A demurrer for
misjoinder of parties defendant is unauthorized. The provision of Code C. P.,
§ 488, subd. 6, permitting a demurrer for a defect of parties, plaintiff or de-
fendant, means a deficiency of, and not too many, parties. Tew v. Wolf-
sohn, 54.
2. Demurrer admits only properly pleaded allegations.— A demurrer to a
defense admits only such allegations as are properly pleaded and therefore
a defendant cannot assist its defense by mere conclusions of law. Loeb v.
Firemen's Insurance Co., 107.
3. When frivolous - Not stricken from the record. The granting of a mo-
tion for judgment on a pleading as frivolous does not strike the pleading from
the record. A pleading is to be deemed frivolous only in case it is so clearly
without foundation that the defect appears upon mere inspection and without
argument. Halliday v. Barber, 116.
4. Statements of the answer merely inconsistent with the complaint raise no
issue. Allegations of the complaint are not put in issue merely by statements
inconsistent therewith contained in the answer, and consequently where the
plaintiff alleges an unlawful entry of her dwelling and a battery of her person
the defendant's answer, that he entered under authority of a chattel mortgage
on the plaintiff's goods and to assist in removing them and did not assault her,
raises no issue and makes the answer frivolous. Zwerling v. Annenberg, 169.
5. Allegations in an answer merely inconsistent with the complaint do not
amount to a denial.- Where an answer contains no general or specific denial
as required by Code C. P., § 501, subd. 1, allegations therein, however incon-
sistent with those of the complaint, cannot be accepted as a substitute, for such
a denial. Soper v. St. Regis Paper Co., 294.
6. Denial of any knowledge sufficient to form a belief not sham.- An an-
swer, denying any knowledge or information sufficient to form a belief as to a
material allegation of the complaint, raises an issue and cannot be stricken
out as sham. The court cannot say that such a denial is untrue merely be-
cause the party making it presumably had sufficient knowledge absolutely to
deny the allegation if untrue. Nichols v. Corcoran, 671.
See Bankruptcy; Divorce; Dower; Libel; Vendor and Purchaser.
New York city — Legislative appointment of detective-sergeant — His status
- Police commissioner's ineffective exercise of his power of appointment -
Declarations of city officers as to its legality. The statute, L. 1901, ch. 466,
amendatory of L. 1897, ch. 378, § 290, changing the then existing tenure of the
office of detective-sergeant of the New York city police force-a position in
existence prior to 1894-and making permanent the position of those de-
tective-sergeants who were in office on April 1, 1901, violates the provisions
of the State Constitution of 1894, art. X, § 2, in that the Legislature, not a
local authority, in effect appoints to a city office. Such a detective-sergeant
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