entirely distinct from any business transacted by the corporation, cannot
be said to be capital of the corporation employed within the State of New
York, but money invested by the corporation in the stocks and bonds of
a kindred corporation, or of some corporation whose business would add
profit to the investing corporation, is presumptively capital employed by
the investing corporation within the State of New York. Id.
Distinction between "capital" and "capital stock."] Quære, whether
the Legislature, when providing for the taxation of corporations, intended to
make any distinction between the use of the terms "capital stock" and
"capital." Id.
9. Capital in excess of the capital stock.] Quare, whether, if the capital
of a corporation employed within the State of New York should exceed the
amount of its capital stock, such excess would be taxable. Id.
Transfer tax-annuity to an executor and trustee together with his
commissions. A testator, by his will, provided: "I further direct that my
executor and trustee John F. Clarke be paid from my estate the sum of
fifteen hundred dollars annually, together with the commissions allowed by
law, as long as he shall act as such executor and trustee, the same to be
received by him in full compensation for any and all services, legal or other-
wise, which he shall render my estate."
Held, that the annuity so bequeathed was subject to a transfer tax under
the provisions of section 227 of the Tax Law (Laws of 1896, chap. 908).
When, in the case of a life estate, the estate in remainder is presently
taxable.] The testator devised his residuary estate in trust for the benefit of
his wife and daughter during their lifetimes with remainder to his next of
kin and heirs at law or to the lawful issue of the daughter.
Held, that the transfer tax to which the estate in remainder was subject
was presently payable.
Otto Huber, Sr., by his will, gave to his wife a life interest in his entire
estate, and, upon the decease of his said wife, he gave such estate to his
children in equal shares. The said Otto Huber, Sr., was survived by his
wife and seven children, one of whom was Otto Huber, Jr. The greater
portion of the estate of Otto Huber, Sr., consisted of brewery property, and
in his will he provided for the creation of a corporation to which the prop-
erty should be transferred. Otto Huber, Jr., was the president of such cor-
poration for some years and up to the time of his death. The said Otto
Huber, Jr., left a will, by which he transferred his interest in his father's
estate, together with his other property, to his executors upon certain
trusts.
Held, that the transfer tax, to which that part of the property passing
under the will of Otto Huber, Jr., which came to him from Otto Huber, Sr.,
was subject, was presently taxable at the death of the said Otto Huber, Jr.
Id.
Costs upon an appeal from a surrogate's decree vacating a transfer
tax assessment they are governed by Code Civ. Proc. § 3240-the order
allowing them need not specify the items allowed nor fix the rates-dis-
bursements may be taxed although not expressly allowed-costs on appeal
from an interlocutory order, by what Code provisions governed.
TAXPAYER — Taxpayer's action- the construction of a school building
not enjoined upon purely technical objections - extra allowance-form of
notice of the special meeting of the inhabitants-the special meeting need
not give specific directions concerning the school building.
LAWSON . LINCOLN...
See SCHOOL.
TELEPHONE POLE - Erection of, in a street-when not enjoined.
TESTAMENTARY GUARDIAN:
See GUARDIAN AND WARD.
To personal property.
See PERSONAL PROPERTY.
TRADE MARK-Contempt - where the use of a system of figures is enjoined,
the placing and use before each figure of such system, of the figure 1 is a con-
tempt.] A manufacturing firm which used a series of numbers to designate
the goods manufactured by it, obtained an injunction restraining another firm
engaged in a similar business from using such system of numbers to designate
its goods. The firm thus enjoined thereupoù changed the system of num-
bers by inserting the figure 1 in front of each of the old numbers and con-
tinued to use the figure system as thus modified.
Held, that the enjoined firm was guilty of a contempt of court.
BROWN v. BRAUNSTEIN.
TRIAL-A complaint containing two causes of action, to each of which a
counterclaim is interposed — an order setting aside a verdict as to one cause of
action and granting a new trial involves a new trial of both causes of action and
of the counterclaim-right thereto, not waived by not moving to resettle an
improper order.
See VERNON v. O'BANNON Co....
New trial- — a plaintiff who obtains a verdict cannot object to a condition,
on compliance with which by him the verdict is allowed to stand the costs should
be paid by the moving party where a new trial is granted because of error in the
amount of the verdict.
See LAWRENCE. WILSON.....
Insurance - a direction of a verdict for the company, notwithstanding
the fact that certain premiums are recoverable in case the policy is not enforcible,
when sustained — the judgment thereon does not bar an action for the
premiums.
See SEYBOLD v. SUPREME TENT....
Building contract under a complaint alleging performance thereof.
excuse for non-performance cannot be shown nor where such proof is received
over objection can the complaint be thereafter made to conform to the proof.
See ROWE v. GERRY.
Where a complaint is framed and a trial is conducted on the theory of
negligence the action will not, on appeal, be considered as based on trespass ·
error in charge as to liability for the injury.
See DUERR v. CONSOLIDATED GAS CO......
Charge that the jury may consider the non-production of a paper in the
possession of the plaintiff's attorney, which would explain the transaction at
it is proper although such paper is in court and accessible.
See WERR v. KOHLES..
Verdict-not set aside, where the defendant claims that the jury were
unduly influenced by persistent efforts to introduce incompetent evidence, the ver-
dict not being excessive or the plaintiff's right to recover doubtful.
See CONNOLLY v. BROOKLYN HEIGHTS R. R. Co......
Testimony as to admissions made by an accused in a conversation with an
officer of the New York Society for the Suppression of Vice - objection, how pre-
sented to that part which relates to other like offenses.
Short decision under Code of Civil Procedure, section 1022 — when the
grounds thereof are not sufficiently stated the judge who made it being no
longer on the bench, a new trial will be ordered.
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 com-
mission of a crime and in a criminal action.
Motion to dismiss because the complaint does not state a cause of action -
waiver thereof — amendment, on appeal, of the complaint to conform it to the
proof.
See JOHNSON v. CITY OF ALBANY..
New trial because of newly-discovered evidence - affidavits of the witnesses
or a statement that they cannot be obtained are necessary.
CHEEVER . SCOTTISH UNION & N. INS. Co. (No. 2)....
Contradiction of a witness having written statements by the witness
marked for identification and subsequently reading them.
See HANLON v. EHRICH...
Upon a motion to direct a verdict the court may disregard incompetent
evidence admitted upon the trial.
See TOWNSEND . GREENWICH INSURANCE Co........
When a complaint may be dismissed although a verdict has been rendered
in favor of the plaintiff.
See GLENNON . ERIE R. R. Co........
Action of the judge in denouncing a witness' conduct and in asking a
series of questions of him.
See METCALFE v. GORDON...
charge that, if in doubt, the jury must render a verdict
See KENNEALY . WESTCHESTER ELECTRIC R. Co.......
Questions raised by an answer not considered where the complaint is dis-
Verdict when set aside because the amount thereof is not justified by the
Testimony of an interested witness the jury may credit it in part only.
See MCGAHIE v. MCCLENNEN.
TRUST- ·Real property fraudulently purchased with trust funds and con-
veyed by the trustee-money received by the trustee in bankruptcy of such trustee
on the compromise of a creditor's suit brought for its recovery-the money is
not recoverable by the beneficiary of the trust fund.] Grahams Polley, who
held a quantity of personal property in trust for Mary Frances Welch, used
a portion of the trust fund in the purchase of real estate, the title to which
he took in his own name. Thereafter he fraudulently conveyed such real
estate to one Lillian Cavanagh. He was subsequently adjudged a bankrupt,
and the trustee in bankruptcy commenced an action against the bankrupt
and the said Lillian Cavanagh to set aside the transfer of real estate to Cava-
nagh, alleging that the transfer was fraudulent as to creditors. The action
resulted in a judgment in favor of the trustec. The defendants appealed
from the judgment, but before the appeal was argued the matter was, with
the permission of the bankruptcy court, compromised by the payment to
the trustee of a sum of money.
Held, that such money was not impressed with a trust in favor of Mrs.
Welch, as it had been recovered upon the theory that the real estate belonged
to the bankrupt and not to Mrs. Welch;
That any right which Mrs. Welch had against Cavanagh was not affected
by the compromise of the claim asserted by the receiver. WELCH . POLLEY. 260
- Transfer tax-annuity to an executor and trustee together with his
commissions. MATTER OF HUBER.....
Annuities payable from a trust fund are general legacies.
As to trusts created by will.
TRUSTEE- Of a corporation.
See CORPORATION.
UNDUE INFLUENCE AND DURESS:
UNITED BRETHREN'S CHURCH:
UNITED STATES STATUTES AT LARGE:
[See table of the United States Statutes at Large, cited, ante, in this
volume.]
VALUE- Purchase price as evidence of.
VENDOR AND PURCHASER - Proceedings for the sale of a decedent's
real property for the payment of debts-a mortgage given by a devisee
pending such proceedings to which he, but not the mortgagee, is a party is
cut off by a sale thereunder - machinery placed in a mill property by a
devisee thereof to replace other machinery therein, held to be realty.
RICHMOND . FREEMAN'S NATIONAL BANK....
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.
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......
Effect of the omission from letters patent of conditions contained in
prior letters. THOUSAND ISLAND STEAMBOAT Co. v. VISGER.....
VENUE-Changed both for the convenience of witnesses and because the cause
of action arose in the county to which the case is removed · - what does not show
that the plaintiff cannot obtain an impartial trial.] 1. In an action brought
to recover damages for the alleged unlawful arrest of the plaintiff at the
instigation of the defendant, it appeared that the defendant resided in
Putnam county; that the alleged offense on which the arrest was based was
committed in that county; that the arrest was made in that county by
officials thereof, and that all the material witnesses, excepting the plaintiff
and another person, who was the plaintiff in a similar suit arising out of the
same transaction, resided in Putnam county.
Held, that the court was justified in changing the venue of the action from
the county of Westchester, where it was brought, to the county of Putnam,
both for the convenience of witnesses and because the cause of action arose
in the latter county.
That the court would not refuse to change the venue of the action to
Putnam county because the plaintiff was of the opinion that he would be unable
to obtain an impartial trial in that county, where it appeared that such
opinion was based upon the fact that the arrest grew out of an alleged inter-
ference with the property of a club, of which many of the officials and other
prominent citizens of Putnam county were members. ARCHER v. MCILRAVY.. 512
2. Condition of the calendar and duration of the Trial Term, considered.]
In determining whether a change of venue will subserve the convenience
of witnesses, the accessibility of the court house is not alone to be considered,
as the condition of the calendar and the duration of the terms are equally
relevant. Id.
VILLAGE TAX — Insertion of, in the tax roll before a warrant is signed.
See TAX.
At an election.
See ELECTION.
WAIVER — Insurance — neglect of the insured to serve proof of loss within
sixty days—an insurance adjuster to whom the company refers the matter may
waive the defect.
See DOBSON v. HARTFORD FIRE INSURANCE CO..
A waiver of the requirements of a contract cannot be proved under an
allegation of performance.
See BURR v. UNION SURETY & GUARANTY Co.......
Motion to dismiss because the complaint does not state a cause of action
waiver thereof.
See JOHNSON v. CITY OF ALBANY...
- Of commitment — description of the offense in
arrest may be made without warrant.
WATERCOURSE Wharf on a navigable river - if constructed without
authority from the State it cannot be used by a steamboat company without
the owner's consent — if constructed under letters patent reciting a grant for
the purpose of promoting commerce the owner cannot give to one steamboat
company an exclusive privilege to use it remedy in equity - effect of the
omission from letters patent of conditions contained in prior letters.
THOUSAND ISLAND STEAMBOAT.Co. v. VISGER.....
WHARF On a navigable river—if constructed without authority from the
State it cannot be used by a steamboat company without the owner's consent.]
1. Where the owners of property in the State of New York, abutting on
the St. Lawrence river, construct docks extending into the bed of the river,
the fact that such docks were constructed without the express authority of
the State of New York does not entitle a steamboat company to land its
steamboats at such docks without the consent of the owners.
THOUSAND ISLAND STEAMBOAT Co. v. VISGER..
2. If constructed under letters patent reciting a grant for the purpose of pro-
moting commerce the owner cannot give to one steamboat company an exclusive privi-
lege to use it remedy in equity.] Where, however, the abutting owners pro-
cured patents from the State of New York of the lands on which the docks
were built, reciting that the letters were granted for the purpose of promot-
ing the commerce of our said State and for no other object or purpose what-
soever, and with the reservations and upon the conditions hereinafter men-
tioned," one of which conditions was that if the grantees should not "within
five years from the date hereof actually appropriate and apply the above
described premises to the purposes of commerce by erecting a dock or
docks thereon, and filling in the same," then said presents and everything
therein contained should cease, determine and become void," the abutting
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