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DECISION - Continued.
which several issues had been raised by the pleadings, was tried before a
judge without a jury. The trial judge filed what purported to be a decision
in the short form permitted by section 1022 of the Code of Civil Proced-
ure, stating, “The court decides that the plaintiff has failed to establish
a cause of action and that the complairt herein and this action should be dis-
missed upon the merits as against the defendant William McCarty Little,
“The court states the grounds of this decision to be that the plaintiff
has failed to establish a cause of action and that he is not entitled to the
relief demanded in the complaint."
Held, that the decision was inadequate to support the judgment dismissing
the complaint, as it did not state, as required by section 1022 of the Code of
Civil Procedure, the ground upon which the complaint was dismissed;
That, as the judge who presided at the trial of the case was no longer on
the bench, a new trial was necessary. GEIN v. LITTLE..
DEED — Action to set aside a deed as procured by fraud — proof that after
its execution the grantor, since deceased, made a lease of the premises in the
presence of the grantee — the grantee may testify to her reasons for allowing
such lease to be made. BURDICK 0. BURDICK...
Tax sale of property in the city of Rochester - meaning of words
“subject, however, to all the claims which the people of this State may have
thereon for taxes.” CITY OF ROCHESTER v. KAPELL...
Res adjudicata — a judgment in an equitable action defining a bound-
ary line is conclusive between the same parties on the subsequent trial of an
ejectment suit. BECKER v. STUDEMAN..
Effect of the omission from letters patert of conditions contained in
prior letters. THOUSAND ISLAND STEAMBOAT Co. v. VISGER....
DEFINITION –“ Capital stock" and "capital" as used in the sections of
the Tax Law relating to the taxation of corporations.
See PEOPLE EX REL. Com. CABLE Co, 0. MORGAN.
Subject, horoever, to all the claims which the people of this State may
have thereon for taxes"— meaning of such words.
See CITY OF ROCHESTER 0. KAPELL..
Deputy” — within the meaning of section 21 of the Civil Service Law.
See PEOPLE EX REL, RYAN O. WELLS.
DESERTION – Of husband or wife.
See HUSBAND AND WIFE.
DIRECTOR – Of a corporation.
DISCHARGE - Of a receiver.
DISORDERLY CONDUCT — How far it is a sufficient description of an
See PEOPLE EX REL. SMITH V. VAN DE CARR..
DOMICILE — Residence for the purpose of voting — mere attendance at a semi-
nary, without independent acts showing an intention to change the former resi-
dence, is ineffective.
See MATTER OF McCORMACK.
DOWER — Action for admeasurement of dower in land conveyed by the hus-
band (since deceased) of the plaintiff by a deed in which she did not join-a
counterclaim for damages for the amount of such dover interest cannot be inter-
posed although the plaintiff was the sole derisce and legatee of her husband's will.]
1. In an action for the admeasurement of dower in real estate, of which the
plaintiff claimed that her deceased husband was seized during coverture, and
which he had conveyed by a deed, in which she did not join, the defendants
interposed an answer alleging, as a counterclaim, that the plaintiff's husband
had devised and bequeathed to her all his property, both real and personal;
that he was solvent and responsible; that the property so devised and
bequeathed was greater in value than the amount of the plaintiff's claim for
dower; that the plaintiff, as beneficiary under the will, was indebted to the
defendants in the amount (if any) which would be recoverable in this action
for admeasurement of dower, and that the benefits received by her under the
will should be set off against the plaintiff's claim.
Held, that the counterclaim was demurrable;
That the defendants' claim did not arise out of the plaintiff's claim and
was not connected in a legal sense with the subject matter of the plaintiff's
action, and that, therefore, the matter set forth in the answer did not consti-
tute a counterclaim within the definition contained in section 501 of the Code
of Civil Procedure. BURNETT 0. BURNETT......
2. It does not exist in an estate in remainder conveyed by the husband.)
A widow is not entitled to dower in land in which her husband had a vested
remainder expectant upon an estate for life, which remainder he conveyed
to the owner of the life estate during the continuance of such life estate by a
conveyance in which his wife did not join. JACKSON 0. WALTERS... 470
DUPLICITY - In an indictment.
DURESS AND UNDUE INFLUENCE:
EJECTMENT – Res adjudicata — a judgment in an equitable action defin.
ing a boundary line is conclusive between the same parties on the subsequent
trial of an ejectment suit. BECKER 0. STUDEMAN.
ELECTION - Residence for the purpose of voting — mere attendance at a
seminnry, without independent acts showing an intention to change the former
residence, is ineffective. ) 1. A student at a seminary in the State of New
York, who, before taking up his abode at the seminary, had a residence
elsewhere within the United States, is not entitled to vote in the election dis-
trict in which the seminary is situated, unless it appears that, by some une-
quivocal act, independent of his attendance at the seminary, he has abandoned
such other residence. MATTER OF McCORMACK..
2. Letters announcing an intention of effecting a change of residence –
when ineffective for that purpose.] Letters written by such a student to the
mayor of the city, and to the board of registry in the election district in
which the seminary is located, stating that it was his intention when he
became a student at the seminary to make it his actual and legal residence,
but which do not suggest any fact showing such a change of residence other
than bis abode at the seminary, are insufficient to effect a change of resi-
3. The appointment of election officials by the mayor of a city cannot
be reviewed by a justice under section il of the Primary Election Law.] A
justice sitting at chambers has no power, under section 11 of the Primary
Election Law (Laws of 1899, chap. 473), to review the action of the mayor of
a city in appointing election officers, as the jurisdiction conferred by such
ELECTION — Continued.
section only relates to a right given or a duty enjoined by that act, while
the power of a mayor to appoint election officers is given by section 12 of the
Election Law (Laws of 1896, chap. 909, as amd. by Laws of 1901, chap. 95).
MATTER OF MCSHANE 0. MURPHY.
ELECTRIC ILLUMINATING COMPANY – Taxation of.
EMINENT DOMAIN — Measure of damage where only a part of a tract
of land 28 taken.] Where a railroad company acquires, by condemnation
proceedings, a portion of a tract of land for the purposes of its railroad, the
owner is entitled to recover the market value of the portion actually taken
by the railroad company, without any deduction on account of any actual
or supposed benefits resulting to the remainder of the tract by reason of
the construction and operation of the proposed railroad.
In addition, the owner is entitled to recover any nages which will
result to the portion of the tract not taken, as well by reason of the taking
of the parcel acquired by the railroad company, as by reason of the use
to which the portion taken will be put by the railroad company.
SOUTH BUFFALO RAILWAY Co. 0. KIRKOVER..
EMPLOYER AND EMPLOYEE:
See MASTER AND SERVANT.
EQUITY - Injunction to prevent the execution of a resolution adopted by the
votes of members worshipping at chapels connected with a parent church — where
such practice has been acquiesced in for many years, and no property rights
are involved, equity will not interfere.] 1. The United Brethren's Church is
a religious corporation which was created in 1808 under chapter 79 of the
Laws of 1801. The parent church is located at New Dorp. In 1873 and in
1877 chapels were established at Castleton Corners and at Giffords, the title
to the respective properties being vested in the United Brethren's Church,
and there being no separate or independent incorporation of the chapels.
The names of all persons admitted at the chapels to membership in the
church were transmitted to the parent church at New Dorp and were there
enrolled upon the records of said church as members thereof. The members
who worshipped at the chapels were represented on the board of trustees
who had charge of the temporalities of the church corporation, and also con-
tributed to the funds of the corporation.
From the time the chapels were established, the members who worshipped
at such chapels voted at the meetings of the corporation without apparent
question, ction or protest.
In 1902, at a special meeting of the corporation, a resolution increasing
the salaries of the pastors of the chapels was adopted by the votes of the
members of the chapels, a majority of the members of the parent church
present at the meeting having voted against the resolution. The right of
the members who worshipped at the chapels to vote upon the resolution
was not challenged at the meeting.
In an action brought by a member of the parent church at New Dorp on
behalf of himself and all other members of such church, against the church
corporation and its trustees and the presidents and pastors of the chapels,
to procure an injunction restraining the carrying out of the resolution on the
ground that the members who worshipped at the chapels were not entitled
to vote thereon, it was
Held, without determining the strict legal right of the members who wor-
shipped at the chapels to vote at the meetings of the corporation, that, as
such members had been permitted to vote at the meetings of the corpo-
ration without question for many years and as no property rights were
involved in the action, equity would not interfere to prevent the carrying
out of the resolution. DAVIE 0. HEAL......
2. — Action to have a bill of sale absolute in form adjudged to have been
given as security only — what proof is required to sustain it -- fraud or mis-
take need not be established.] În an action brought to procure an adjudica-
EQUITY - Continued.
tion that a bill of sale, absolute in form, executed by the plaintiff to the
defendant was given as security only, it is not necessary for the plaintiff to
establish fraud or mistake, but only to explain satisfactorily how the bili
came to be drawn as an absolute instead of a conditional transfer; the fact
that the plaintiff claims that he did not know, at the time he signed the bill
of sale, that it was absolute in form is not a bar to his right to relief.
Semble, that if the plaintiff conceded that he intended to execute a bill
of sale, absolute in form, but that it was understood between the parties that
such bill of sale was to be held only as security, the plaintiff would still be
entitled to the relief sought.
What evidence is sufficient to warrant a finding that a bill of sale, absolute
in form, executed by one partner to another of the vendor partner's interest
in the firm assets, was intended to be held as security for the firm's indebt-
edness to the vendee partner, considered. DONNELLY V. MCARDLE......... 33
3. Erection of telephone poles in a street - an injunction pendente lite
to prevent it refused.] A person who owned the fee of a portion of a street
known as Bell avenue at Bay Side, in the borough of Queens and city of
New York, brought an action to enjoin the defendant, a telephone com-
pany, from erecting a telephone or telegraph line through, over, under or
along the avenue. The complaint did not allege any damage to the plaintiff
except such as might be implied from the allegation that the defendant
proposed to erect a telephone or telegraph line. It did not appear whether
the avenue in question possessed the characteristics of a built-up city street
or was, to all intents and purposes, merely a rural highway.
Held, that a motion to continue a temporary injunction granted in the
action was properly denied. WEEKS v. NEW YORK & N. J. TELEPHONE Co. 257
Action to set aside a deed as procured by fraud — proof that after its
execution the grantor, since deceased, made a lease of the premises in the
presence of the grantee the grantee may testify to her reasons for allow.
ing such lease to be made. BURDICK 0. BURDICK...
Res adjudicata- a judgment in an equitable action defining a bound-
ary line is conclusive between the same parties on the subsequent trial of an
ejectment suit. BECKER V. STUDEMAN.....
Contempt — where the use of a system of figures is enjoined, the plac-
ing and use, before each figure of such system, of the figure 1 is a contempt.
BROWN v. BRAUNSTEIN
See TRADE MARK.
Power of a court of equity on the giving of a bond to allow a
recovery upon a lost instrument. MATTER OF COOK
Action to compel executors to sell real estate and to account when
not maintainable. LEVETT v. POLHEMUS....
See EXECUTOR AND ADMINISTRATOR.
Specific performance of a contract relating to personal property —
when compelled - how far the demand for relief determines whether an
action is at law or in equity. BATEMAN v. STRAUS.....
See SPECIFIC PERFORMANCE.
ESTOPPEL – Action to set aside a deed as procured by fraud — proof that
after its execution the grantor, since deceased, made a lease of the premises
in the presence of the grantee — the grantee may testify to her reasons for
allowing such lease to be made. BURDICK v. BURDICK....
EVIDENCE — Action for damages for an assault with a loaded firearm —
the distinction, in the burden of proof borne by the plaintiff, in a civil action
involving the commission of a crime and in a criminal action.] 1. Upon the
trial of an action to recover damages for an assault committed with a loaded
EVIDENCE - Continued.
firearm, the court charged the jury that the burden was upon the plaintiff to
prove his cause of action by a preponderance of evidence. Whereupon the
defendant's counsel requested him to further charge " that the defendant is
presumed innocent until he is proven guilty," which request the court
Held, that, if the defendant's request was designed to obtain a ruling that
the requirements of the criminal law relative to the degree of proof neces-
sary to sustain a conviction was applicable to the case at bar because the
plaintiff's right to recover incidentally involved the commission of a crime by
the defendant, the request was properly refused, as such a ruling would be
That, if the request was designed to obtain a ruling that the presumption
of innocence attaches in all cases, both civil and criminal, to conduct equally
susceptible of an innocent and of a guilty construction, which ruling would
have been proper, the defendant should have made his meaning clearer.
Semble, that the difference in the burden of proof borne by the plaintiff in
a civil action and by the prosecution in a criminal proceeding is the distinction
between preponderating proof and such proof as excludes every reasonable
doubt. KURZ v. DOERR
2. Suit by one claiming as assignee of the Consolidated Chandelier Com-
pany - a statement by a witness that the person named in, and who executed, the
assignment was "the owner of the Consolidated Chandelier Company” is insuf:
ficient to establish his authority.) In an action to recover upon a claim alleged
to have been assigned to the plaintiff by the Consolidated Chandelier Com-
pany, the plaintiff offered in evidence a written assignment of the claim
executed and acknowledged by one Sanberg. The instrument contained no
reference whatever to the Consolidated Chandelier Company, and the only
evidence to connect Sanberg with such company was given by one New-
mark, who described himself as the manager of the company, and who swore
that Sanberg was “the owner of the Consolidated Chandelier Company."
It did not appear whether the Consolidated Chandelier Company was a
corporation or a voluntary association, or merely a corporate name under
which some individual or individuals transacted business.
Held, that the complaint was properly dismissed on the ground that the
plaintiff bad failed to establish the alleged assignment from the Consolidated
Chandelier Company. SAFFIER v. HAFT...
3. A letter written in answer to one addressed to the writer is competent
although the whole correspondence is not offered - effect of a statement therein
adverse to the claim of the party offering it. - the other party may put in evi-
dence the rest of the correspondence.] In an action on a contract the plaintiff's
attorney testified that he wrote a letter to the defendant at the address stated
in the contract and that he received, through the mail, a letter signed by the
defendant, which read as follows: Received your letter 18th inst and would
have paid for the books, but my ad was not in as I order it.”
Held, that the plaintiff was entitled to introduce the letter in evidence as
an admission by the defendant, and that it was not bound to read in evidence
the entire corre-pondence;
That the defendant, however, could have introduced any correspondence
bearing upon the subject matter of the letter;
That the fact that the letter denied that the plaintiff had fulfilled its con-
tract did not defeat the plaintiff's case;
That, wbile the admission contained in the letter must be taken in its
entirety, the plaintiff was not bound by the defendant's statement of his
reason for failing to make payment. LEWIS PUBLISHING Co. o. LENZ...... 451
4. Testimony as to admissions made by an accused in a conversation with
an officer of the New York Society for the Suppression of Vice.] Upon the trial
of an indictment an officer of the New York Society for the Suppression of
Vice, to whom the defendant admitted committing the crime charged in
the indictment, may testify to such admission potwithstanding that it was
made during an interview which took place between the defendant and the
officer at the latter's request, and that the officer did not apprise the defend-
ant of his rights or inform him that any statement he might make might
be used against him. PEOPLE 0. BUSHNELL ...
App. Div.--Vol. LXXXVI. 42