and 114 New York State Reporter

The fire commissioner of the city of New York had power to dismiss the chief of the Ordinances relating to intoxicating liquors, see city fire department after a hearing for cause."Intoxicating Liquors."

INDEX.

(Sup.) 986.

before the transfer.-Bennett v. City of New construed. - Hastings v. City of New York
York (Sup.) 914.
§ 4.

Agents and employés.

A veteran employed in the department of
parks held not an officer of the city, so as to
be entitled to wages for time lost by reason of
sickness.-Eckerson v. City of New York (Sup.)

168.

Cashier of commissioner of public works held
to hold a confidential position, from which he
can be summarily dismissed.-People v. Can-
tor (Sup.) 173.

§ 5. Public improvements.

Under New York Charter, § 990 (Laws 1897,
c. 378), where title to property condemned vest-
ed in city before confirmation of commissioners'
report, interest on the award may be included
in the assessment for benefits from the date of
its vesting to the date of the report.-In re
East 158th St. (Sup.) 594; In re Lyman Place,
Id. In re East 173d St., Id.

Section 990, New York Charter (Laws 1897,
c. 378), relating to assessment for benefits, held
to be within the power of the legislature.-
In re East 158th St. (Sup.) 594; In re Lyman
Place, Id.; In re East 173d St., Id.

Under its charter (Laws 1895, c. 635) the city
of Yonkers cannot improve a private road for
public use and assess the cost on adjacent prop-
erty.-Culver v. City of Yonkers (Sup.) 1034.

Front-foot rule of assessments for sewer im-
provements held improper under Laws 1897, c.
414, art. 10, § 268. when not resulting in as-
sessments in compliance with such chapter.
Appeal of Wheeler (Co. Ct.) 204.

§ 8. Torts.

Inability of a plaintiff in an action against a
city to prepare a notice to the city officer with-
in the time required by Laws 1898, c. 231, § 2,
held to excuse a delay of 24 hours in the send-
ing of such notice.-Walden v. City of James-
town (Sup.) 65.

In an action against a city to recover for in-
Walden v.
juries due to a defective walk, evidence held to
support a finding of negligence.
City of Jamestown (Sup.) 65.

-

In an action against a city for injuries re-
ceived by an obstruction in the street, an in-
struction as to the permanency of the obstruc-
tion held properly refused.-Wynn v. City of
Yonkers (Sup.) 257.

In an action against a city for injuries, owing
to a pedestrian having fallen into a coal hole
in a sidewalk, evidence held insufficient to show
that the coal hole had been in such a defective
condition that the same could be determined
from the outside, so as to charge the city with
liability.-Matthews v. City of New York (Sup.)
360.

A city, sued for injuries owing to a pedes-
trian having fallen into a coal hole on a side-
walk, is only chargeable with such constructive
knowledge of the method of constructing the
hole attachments as would be acquired by prop-
erly inspecting the same from the street.-Mat-
thews v. City of New York (Sup.) 360.

In an action against an abutting owner for
injuries from obstructions on a sidewalk, a mo-
tion to direct a verdict for failure to prove neg-
aligence, etc., held improperly denied.-Kelly v.
Otterstedt (Sup.) 1008.

In determining the sewer assessment in
village, commissioner should consider any im-
provements on the property to be assessed.-
Appeal of Wheeler (Co. Ct.) 204.

§ 6. Police power and regulations.
An ordinance providing for the punishment of
disorderly conduct, enacted under the charter of
Buffalo (Laws 1891, c. 105), held not to author-
ize a civil action in the municipal court to recov-
er a fine for breach thereof.-City of Buffalo v.
Preston (Sup.) 851.

New York Sanitary Code, § 66, does not vest
the board of health with arbitrary authority.-
People v. Van de Carr (Sup.) 1108.

New York City Sanitary Code, § 66, adopted
February 16, 1898, was a re-enactment of sec-
tion 221, adopted January 21, 1896. The lat-
ter was ratified by Greater New York Charter,
§ 1172 (Laws 1897, p. 418, c. 378); and by sec-
tions 1168 and 1172 (pages 415, 418) the board
of health was given authority to modify the
sanitary code. Held that Laws 1901, p. 499,
c. 466, § 1172, validated Code, § 66.-People v.
Van de Carr (Sup.) 1108.

The Legislature acted within its authority in
authorizing the enactment of New York City
Sanitary Code, § 66.-People v. Van de Carr
(Sup.) 1108.

§ 7. Use and regulation of public pla-
ces, property, and works.

In an action for injuries by slipping on ice on
a city sidewalk, a finding that the proximate
cause of the ice was the improper condition of
a leader held contrary to the weight of evi-
dence.-Wittman v. City of New York (Sup.)
1022.

In an action for injuries by ice on a city
street, a complaint based on the city's negli-
gence could not be changed at the trial to an
action for nuisance in maintaining a defective
to an adjoining building.-
leader attached
Wittman v. City of New York (Sup.) 1022.
§ 9. Fiscal management, public debt,
securities, and taxation.
Consolidation act held to arrest proceedings
then pending for sale of property in New York
for nonpayment of taxes.-Ely v. Azoy (Sup.)
620.

Sale for unpaid taxes, made in May, 1883,
held invalid for insufficiency of notice of ad-
vertisement of sale.-Ely v. Azoy (Sup.) 620.
Where a city refuses to pay an officer the
810. Claims against corporation.
salary due him, he is entitled to interest only
from the time demand therefor is made.-Stod-
dart v. City of New York (Sup.) 344.

MUNICIPAL COURTS.

Municipal grant of lands under water on the
Harlem river to the owners of adjacent uplands See "Courts," § 2.

80 N.Y.S.-75

and 114 New York State Reporter

Continuance of firm name after death of part-tributory negligence was not shown.-Vanderca: ner, see "Partnership," § 2.

with his elder brother, who was familiar there- See "Descent and Distribution."
with. Levine v. Metropolitan St. Ry. Co.
(Sup.) 48.

An infant of 12 years or above is chargeable

with the measure of care demanded of an For office, see "Elections," § 1.

a sworn statement of election expenses, held un-
constitutional.-Stryker v. Churchill (Sup.) 588.

Judgment, see "Judgment," § 2.

OPINION EVIDENCE.

In civil actions, see "Evidence," § 9.

Of courts, see "Courts," § 1.
Of jurors, see "Jury," § 2.

For inspection of books, see "Discovery," § 1.
Of court, see "Motions."

On granting injunction, see "Injunction," § 2.
On opening default, see "Judgment," § 2.
Review of appealable orders, see "Appeal."

and 114 New York State Reporter

1. New parties and change of parties. Under Code Civ. Proc. § 452, as amended by Laws 1901, c. 512, the question whether a new party should be brought into an action is still within the discretion of the court.-Pope v. Manhattan Ry. Co. (Sup.) 316.

Laws 1897, c. 420, § 20, subd. 1, held not to authorize the continuance of a partnership name by a surviving partner, unless he has purchased the partnership good will. - Slater v. Slater (Sup.) 363.

Pen. Code, §§ 363, 363b, held to prohibit the In an action by an administrator to recover on continuance of the use of a firm name containa life policy, one who claimed the policy as as- ing the name of a deceased partner, unless othsignee thereof held a proper party defendant.-erwise authorized by statute.-Slater v. Slater Hasberg v. Mutual Life Ins. Co. (Sup.) 867. (Sup.) 363.

§ 2. Defects, objections, and amend

ment.

Laws 1897, c. 420, § 20, subd. 1, held not to authorize a decree in the settlement of the estate of a deceased partner for a sale of the right to conduct business under the firm name.

The joinder of an excessive number of defendants is not ground for demurrer to a cause of action properly pleaded as to the answering de--Slater v. Slater (Sup.) 363. fendant.-Adams v. Slingerland (Sup.) 635.

The purchase of the good will of a business

The joinder of an excessive number of defend- of a partnership dissolved by death gives the ants is not a defense to a cause of action prop-right to use the name of the partnership for the erly pleaded as to an answering defendant. purpose of advertising as its successor.-Slater v. Slater (Sup.) 363. Adams v. Slingerland (Sup.) 635.

A demurrer on the ground that a complaint does not state a cause of action does not present the question of the legal capacity of the plaintiff to sue.-Herbert v. Montana Diamond Co. (Sup.) 717.

PARTITION.

81. Actions for partition.
Order bringing in new party in partition hav-
ing judgment against a defendant in partition,
after allowance of claim before referee, modi-
fied.-Flamm v. Perry (Sup.) 125.

Issue, in partition, as to whether ancestor of parties had received more personalty from his ancestor's estate than he was entitled to, held not determinable for lack of proper parties.-Skillin v. Skillin (Sup.) 188.

PARTNERSHIP.

§ 1. Mutual rights, duties, and ties of partners.

pensation for his services in winding up the afA surviving partner is not entitled to comfairs of the firm.-Slater v. Slater (Sup.) 363.

An executor cannot charge to the estate liens on property conveyed to him by his testator.In re Mertens' Estate (Sur.) 376.

A partner, accounting as executor of a deceased partner, may be charged with amount admitted by him to have been received by him as executor from himself as surviving partner.In re Mertens' Estate (Sur.) 376.

Executor of one partner cannot be forced to the estate of another deceased member is not account as for the partnership estate, where represented. In re Mertens' Estate (Sur.) 376. § 3. Dissolution, settlement, and accounting.

Code Civ. Proc. § 3320, providing that compensation of a receiver shall be discretionary with the court appointing him, applies to a reliabili-ceiver appointed to wind up the affairs of a partnership. Slater v. Slater (Sup.) 363.

Equity held to have jurisdiction of a partnership accounting as to a certain contract, though a dissolution is not sought.-Lord v. Murchison (Sup.) 321.

§ 2. Death of partner, and surviving partners.

Return nulla bona of an execution issued on a judgment against a surviving partner held to authorize suit against the executor of a deceased partner, regardless of whether Laws 1897, c. 420, § 6, authorizes such an action in the first instance.-Leggat v. Leggat (Sup.) 327. Interpretation of Laws 1897, c. 420, § 6, in regard to partnership obligations, held, under the pleadings and evidence, not to be up for review by exceptions taken on a trial against the executor of a deceased partner.-Leggat v. Leggat (Sup.) 327.

PATENTS.

Proof that the return nulla bona of an execu- See "Carriers," § 2. tion against a surviving partner was brought about by collusion between the plaintiff and the surviving partner held not a defense to an action against the executor of a deceased partner, regardless of the construction of Laws 1897, c. 420, § 6.-Leggat v. Leggat (Sup.) 327.

§ 1. Persons entitled to patents.

A firm has no right to use the inventions of a partner without compensation, though its.