HIGHWAY- Continued.

2. When public officers may waive statutory provisions. Waiver of statutory
provisions by public officers considered and the rule stated. Id.

Municipal corporations-commissioner of highways of city of New York is
without authority to employ engineer on commission to draw plans for entrance
to Grand Boulevard.

Hildreth v. City of New York, 63.

HUSBAND AND WIFE.

1. Divorce when corespondent appearing in action not entitled to retrial of issues
- Code of Civil Procedure, section 1757, construed. The appearance of a core-
spondent in an action for divorce pursuant to the permission granted by sub-
division 2 of section 1757 of the Code of Civil Procedure does not invalidate the
proceedings in such action prior to his appearance, and he is not entitled to a
new trial of issues already disposed of.

While it seems that the court would have power to order a new trial on the
intervention of such corespondent if necessary to give him a hearing for his
protection, such new trial will not be granted when the corespondent before
his personal appearance in the action had full knowledge thereof and was a

witness at the trial.

Rights of an intervening corespondent discussed. Boller v. Boller, 240.

2. Annulment of marriage — marriage annulled when wife is under age of legal
consent — woman may sue under section 1743 of the Code of Civil Procedure. An
action by a woman to annul a marriage lies under section 1743 of the Code of
Civil Procedure when the plaintiff had not at the time of marriage attained the
age of legal consent set at eighteen years by the Domestic Relations Law,
article 1, section 4. This is so although the parties have cohabited and the
parents of the plaintiff consented to the marriage.

A woman is not compelled to bring her action under section 1742 of the Code
of Civil Procedure. Wander v. Wander, 189.

3. Decree-short form not proper. In such action the short form of decision is
not proper since the amendment to section 1022 of the Code of Civil Procedure
made by Laws of 1903, chapter 85, and such short decision will be sent back
for correction to conform it to the requirements of said section as amended.

Id.

4. Divorce - temporary alimony not proper while prior award of alimony in
action for separation stands. While a judgment for alimony obtained by a wife in a
former action brought by her for separation remains in force the court has no power
to grant her temporary alimony as defendant in an action for absolute divorce.
The former decree measures the husband's obligation for support.
Though the court may have power to modify such former decree, it can only
be done by application in that action. Schmalholz v. Schmalholz, 543.

5. Excessive counsel fees. When in the action for absolute divorce the defend-
ant wife denies the allegations and recriminates, counsel fees are proper, but an
award of $1,000 is excessive. Counsel fees reduced to $500. Id.

6. Separation - abandonment - evidence sufficient to show that wife consented
thereto. In an action for separation brought by a wife on the ground of abandon-
ment, her testimony that she did not now want her husband to come back, that
she was satisfied when he left the house, that she would not go back to him,
etc., does not show a consent to the abandonment which prevents a decree of
separation when the evidence as a whole shows that, when the husband announced
his intention to go, she asked him to support her. Curtin v. Curtin, 447.

7. Words and acts considered. The mental state of the plaintiff is not a
substitute for her words and acts at the time of the abandonment.
Alimony reduced. Id.

8. Husband's contract for support after separation is enforcible. The rule that
the contract of a husband to support his wife made after a separation is enforci
ble was not altered by section 21 of the Domestic Relations Law providing that
a husband and wife cannot contract to relieve the husband from his liability to
support his wife. Reardon v. Woerner, 259.

9. Jurisdiction of Municipal Court of New York. An action on such contract is
not necessarily in equity and the Municipal Court of the city of New York has
jurisdiction. Id.

HUSBAND AND WIFE-Continued.

Deed-action to set aside conveyance and assignment made by devisee-
fraudulent representations by grantee-evidence sufficient to establish legitimacy
and title of grantor.

Cramsey v. Sterling, 568.

Attorney and client - proof insufficient to show retainer by wife when brought
in as party defendant in suit against husband-evidence - objection to narration
by witness.

Altkrug v. Horowitz, 420.

Accident insurance failury of beneficiary to show that she was wife of
insured as warranted by him — when death of insured by shooting is not
accidental.

-

Gaines v. Fidelity & Casualty Co., 386.

Evidence- - when testimony of husband on supplementary proceedings is not
admissible in subsequent action against wife.

Leggett v. Schwab, 341.

Creditor's bill-failure to show conveyance to be fraudulent - evidence
when deposition of grantor inadmissible against grantee.

Wadleigh v. Wadleigh, 367.

Preferred cause

in action for divorce.

- husband failing to pay alimony not entitled to preference

Life insurance - evidence insufficient to show gift of policy to wife.
Baker v. Metropolitan Life Insurance Co., 500.

Habeas corpus to determine custody of child pending action for divorce.
People ex rel. Lawson v. Lawson, 473.

When husband not necessary party to wife's deed.

ICE.

Vines v. Clarke, 12.

Causing fall on sidewalk.

See NEGLIGENCE.

ILLEGITIMACY.

Deed - action to set aside conveyance and assignment made by devisee
fraudulent representations by grantee - evidence sufficient to establish legiti-
macy and title of grantor.

Cramsey v. Sterling, 568.

INCOMPETENT PERSON.

1. Lunatic- committee cannot authorize sale of timber on lands of lunatic with-
out permission of court. The committee of a lunatic cannot alien. mortgage or
otherwise dispose of the real property of the lunatic, except to lease it for a
term not exceeding five years, without the special direction of the court obtained
in proceedings brought for that purpose. Scribner v. Young, 814.

2. Committee entitled to recover value of timber so cut, although the defendant has
paid therefor to the husband and son of the lunatic, Hence, persons who have cut
timber on the lands of a lunatic under an unauthorized contract with her hus-
band and son, and with the permission of the committee, are liable for the value
thereof to the successor of said committee, although they have paid therefor in
good faith to the husband and son. In such case a verdict for the plaintiff
should be directed. Id.

3. Power to authorize payment. As the committee has no power to authorize
the cutting of the timber so he has no power to authorize the purchasers to
pay the value thereof to third persons. Id.

INDEMNITY.

Membership life insurance association - change of beneficiary under by-laws-
failure of insured to give indemnity on changing beneficiary - indemnity waived
by insurer. Stronge v. Supreme Lodge, 87.

INDICTMENT.

Criminal law when withdrawal of counts in an indictment does not invali-
date conviction under remaining counts- ·nolle prosequi abolished.

People v. Lewis, 558.
See CRIME.

INFANT.

Executors and administrators-contract by decedent to pay annuity to friend
- when consideration sufficient infancy when such contract made by infant
ratified at majority — when such contract governed by law of this State.

Parsons v. Teller, 637.

Rights and duties of guardian of.

See GUARDIAN AND WARD.

Death of, through negligence.

See NEGLIGENCE.

See HUSBANd and Wife.

INHERITANCE.

See DESCENT.

INHERITANCE TAX.

See TAX.

INJUNCTION.

-

-

-

-com-

1. To restrain sale of collateral security — when remedy at law adequate
plaint failure to show irreparable damage and that remedy at law is inadequate.
The plaintiff, a promoter of a mining syndicate, pledged to the defendant cer-
tain subscription rights, valued at a premium, as security for a note given to
defendant for sums advanced by him to buy said subscription rights for the
plaintiff. In an action to restrain the defendant from selling said pledged sub-
scription rights on a default in payment of the note, it was alleged that the
defendant had agreed to carry the plaintiff's subscription rights until their
value could be ascertained on the winding up of the syndicate; that the value of
said 'rights could not now be ascertained, and that a sale thereof would cause
irreparable damage to the plaintiff, and that he had no adequate remedy at law.
Held, that in the absence of allegations that the defendant was unable to meet
any damage caused by said sale, the plaintiff's remedy at law was adequate,
because there was a market price for the subscription rights, they having been
bought and sold, and that a temporary injunction restraining the sale of the
securities should be vacated;

That said allegations of irreparable damage were mere conclusions of law.
Ehrich v. Grant, 196.

2. Landowner restrained from encroaching on street by windows and portico-
restrictive covenant by landowners to set back building line. When the predecessors
in title of adjoining owners have entered into a restrictive covenant or "set-back
agreement" as to lands facing a park, which covenant by its terms runs with the
land, and which provides that said owners shall forever keep the sidewalks on
their land unincumbered, and that the building line shall be set back ten feet
from the line laid out by the municipality, and that no owner shall build any
structure other than such as is permitted by the law to be built between what
is known as the exterior house line and the exterior area or stoop line, etc., an
owner will be restrained pendente lite from erecting bay windows and a portico
extending three feet out from said set-back line, although a license therefor has
been obtained from the municipal authorities. Williams v. Silverman Realty &
Construction Co., 679.

3. Temporary injunction improper. But the removal of portions of such
encroaching structures already built should not be compelled by temporary
injunction, but should be left for the final decree. Id.

-

4. Pendente lite — when assignee of lease entitled to injunction to restrain landlord
from interfering with his possession. The assignee of a lease not containing
restrictions against assignment may have an injunction pendente lite under sec-
tion 603 of the Code of Civil Procedure to restrain the landlord from excluding
such assignee from the premises if the complaint sets out facts showing that
the remedy at law is not adequate. Goldman v. Corn, 674.

5. Complaint insufficient which fails to allege facts showing remedy at law is inad-
equate. But, as ordinarily a tenant's remedy at law is adequate, a complaint
praying for such injunction is not sufficient to warrant the granting of the same
when it does not set out facts showing the inadequacy of the rentedy at law. A
mere allegation that plaintiff will sustain irreparable damage and has no ade-
quate remedy at law is insufficient. Id.

6. Affidavits insufficient. Accompanying affidavits are not sufficient to show
said facts, as under section 603 of the Code of Civil Procedure the right to the
injunction in such action must appear upon the face of the complaint. Id.

Landlord and tenant- action to restrain landlord from interfering with use of
furnace by tenant - use of furnace included in the word "appurtenances '
temporary injunction.

Stevens v. Taylor, 561..

Real property-injury to shade trees by erection of telephone poles - damage
recoverable when injury is wanton-when complaint dismissed for failure to
show damage.
Osborne v. Auburn Telephone Co., 702.

Real property

covenant not to erect tenement house-such covenant not
violated by erection of apartment house-burden of proof to show meaning of
covenant.

Marx v. Brogan, 480.

Partnership to speculate in lands - injunction when carrying out of contract
of sale made by one partner will not be enjoined.

Babcock v. Leonard, 294.

Action to restrain the taking of easements of light, air, etc., by erection of ele-
vated railroad viaduct.

Caldwell v. New York & Harlem R. R. Co., 164.

Real property - action for damages for injury to value thereof by elevated
railway
-measure of damage.

Schmitz v. Brooklyn Union Elevated R. R. Co., 308.

--

Real property - injury to real estate by elevated railroad viaduct not damnum
absque injuria.

Wallach v. New York & Harlem R. R. Co., 273.

INNUENDO.

See LIBEL.

INSURANCE.

1. Life insurance - evidence insufficient to show gift of policy to wife. The
plaintiff, the second wife of the insured, claimed that a policy of insurance
on her husband's life had been given to her in consideration of her promise to
marry him.
The policy named the former wife of the insured as beneficiary
and no change of beneficiaries was shown to have been made. The only evi-
dence that the policy was ever given to the plaintiff was the testimony of a
witness that in 1901 the insured said that, if the plaintiff were to marry him, he
had nothing else to offer her but his insurance, and that his only desire was
that none of his children should get it. The plaintiff did not marry the insured
until 1994. There was no proof of the delivery of the policy.

III, that there was a total failure to establish a gift of the polity to the plain-
tiff, and that she was entitled to the proceeds thereof only as administratrix of
the insured. Baker v. Metropolitan Life Insurance Co., 500.

2. Fire insurance ·

- when mortgagor who bids in property on foreclosure entitled
to indemnity for loss accruing prior to delivery of deed.
On the execution of a
mortgage the title remains in the mortgagor, and the mortgagee, though he bid
in the property on foreclosure, has merely a lien until such time as a formal
conveyance by the referee vests him with title.

*

*

*

Hence, when such mortgaged property is insured, "loss, if any, payable to
mortgagee as interest may appear," and it is provided that the insur-
ance shall not be invalidated by foreclosure or other proceedings or notice of
sale, nor by any change in the title, such mortgagee is entitled to be indemnified
for damage to his interest as mortgagee by a fire which occurred after the date

he had bid in the property on foreclosure, but before the delivery of the deed by
the referee. Uhlfelder v. Palatine Insurance Co., Limited, 57.

3. Measure of damages when mortgagee assigns part interest in bid before loss by fire.
It seems, that had the property been bid in before the fire by another party, the
mortgagee could not have recovered from the insurance company as the prop-
erty, at its full value, would have been applied to the extinguishment of the
debt.

When, however, such mortgagee, before the fire and prior to the delivery of
the deed, has assigned two-thirds of his bid to others, the damage to his security
by such fire is one-third of the total damage to the property. Id.

4. Life insurance corporation — when sale of assets to other corporation valid
While a hopelessly insolvent corporation must wind up its affairs in the manner
prescribed by law, and while corporations doing a profitable business owe a
duty to the public to continue their functions, nevertheless a life insurance
company not insolvent. in a commercial or insurance sense, when doing a losing
business and unable to continue without further loss, may, by a contract made
in good faith for the best interests of its creditors and stockholders, sell out its
business to another corporation and cease operations. Raymond v. Security Trust
& Life Insurance Co., 191.

5. Cancellation of sale unwarranted. Although after a sale of the corporate
business under such circumstances certain small sums due employees stand
unpaid through inadvertence, the fact does not warrant a decree setting aside said
agreement turning over the assets in an action by an employee whose claim has
in fact been paid. Id.

6. When Superintendent of Insurance not personally liable for allowing substitu-
tion of bonds deposited in his department. In the absence of evidence of bad faith,
the State Superintendent of Insurance is not personally liable for the difference
in value between United States bonds which he allowed to be withdrawn from
deposit in his department, and the value of other bonds substituted therefor, if
the value of the latter is $100,000, for the law only requires that bonds of said
value be on deposit in said department. Id.

7. Membership life insurance association - change of beneficiary under by-laws.
When the certificate of membership and the rules and regulations of a member-
ship life insurance association provide that a member may change his bene-
ficiary as often as desired, consent of the existing beneficiaries not being
required," etc., a beneficiary first named, and who refuses to surrender the
policy intrusted to her, acquires no vested rights which prevent a change of
beneficiary by the member on his complying with the provisions of the associa-
tion in that respect. Stronge v. Supreme Lodge, 87.

8. Failure of insured to give indemnity on changing beneficiary. Although the
rules of such insurer require the insured to furnish indemnity in case he is
unable to surrender the policy when changing a beneficiary, such provision is
for the security of the association only and the failure of the member to furnish
such indemnity when required cannot be taken advantage of by a former
beneficiary when the insured has in other respects complied with the rule. Id.

9. Indemnity waived by insurer. The insurer may waive provisions designed
only for its own protection. Id.

10. Life insurance— mutual company without stock is not a stock corporation
mandamus to compel allowance of inspection of list of members not a statutory right.
As the New York Life Insurance Company is a mutual company, without stock,
it is not within the provisions of section 29 of the Stock Corporation Law,
requiring stock corporations to keep a book containing a list of stockholders
and to allow an inspection thereof. Hence a policyholder in said company has
no statutory right to a mandamus requiring said company to allow an
inspection of its list of policyholders.

Legal position of policyholders in said company discussed. People ex rel.
Venner v. New York Life Insurance Co., 183.

11. Common-law writ in discretion of court. Apart from said statute, however,
there is a common law right to an inspection by a policyholder of the list of
members, and mandamus may issue to enforce the same. But the issuance of