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SESSION LAWS- Continued.
1902, chap. 270- Civil service.
a person employed to furnish and drive
a horse and wagon for the New York city department of public works is not a
“person holding a position by appointment or employment."
See PEOPLE EX REL. SEIB v. REDFIELD....

367

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SHORT DECISION:
See DECISION.

[See table of Session Laws cited, ante, in this volume.]
SET-OFF-A complaint containing two causes of action, to each of which
a counterclaim is interposed—an order setting aside a verdict as to ne 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. VERNON v. O'BANNON Co......

See NEW TRIAL.

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SIDEWALK- In a city.

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SETTLEMENT - Of a case on appeal.
See APPEAL.

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 dower interest cannot
be interposed although the plaintiff was the sole devisee and legatee of her
husband's will. BURNETT &. BURNETT.....

386

See DOWER.

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See MUNICIPAL CORPORATION.

PAGE.

SLANDER-A general denial and in a single count a defense in justifica
tion and in mitigation—a demurrer to the latter, where it is sufficient as a
defense in mitigation and insufficient as one in justification, is bad-the judg
ment should, in any event, be interlocutory and not final-costs to be col-
lected when the whole issue is tried.] 1. The answer interposed in an action
of slander, in addition to a general denial, alleged, as a separate and dis-
tinct defense, certain new matter which was pleaded in a single count both
by way of justification and in mitigation.

The plaintiff demurred, in terms, to the entire defense consisting of new
matter, on the ground that it was insufficient in law. A final judgment was
rendered sustaining the demurrer and awarding the plaintiff costs, with
leave to collect the same by execution.

Held, that, as the plaintiff did not contend that the defense was insufficient
in law by way of mitigation (although it was conceded to be insufficient as a
justification), the demurrer should not have been sustained;

That, if the plaintiff desired that the new matter by way of justification
and by way of mitigation should be pleaded separately, he should adopt
some appropriate remedy to accomplish that result;

That the judgment sustaining the demurrer was also irregular in that
it was final instead of interlocutory, and in that the costs were made collect-
ible before the trial of the whole issue and the entry of the final judgment
thereon. DOYLE v. FRITZ.....

....

374

2.

Defense of justification where the charge is entire and where it is divis-
ible.] Where the plaintiff in an action of slander charges the utterance of
a single, entire slander, he must prove the same as charged; if the defendant
desires to justify such an alleged slanderous utterance, he must make his
justification coextensive with and as broad as the charge.

Where the alleged slander consists of separate divisible charges against
the plaintiff, the defendant may deny one or more of such charges, and admit
and justify the others. STOCK . KEELE....
... 136

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3. Charge that the plaintiff, a supervisor, "is short six thousand dollars
in his accounts and ought to be behind the bars"— a justification thereof, that
for other acts the plaint fought to be behind the bars" is bad — the charge
must be proved, and the justification cover it, in its entirety.] The complaint
in an action of slander brought by one Stock, a former supervisor of the town
of Cheektowaga, charged that the defendant, "intending to accuse this
plaintiff of having been dishonest and corrupt in public office, to wit, while

515

PAGE.

* *

Id.

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SLANDER - Continued.
supervisor of the town of Cheektowaga

* spoke these words:
Stock is short $6,000 in his accounts in Cheektowaga, and if he had bis
just dues he would be behind the bars;

*"" also that defendant
said to plaintiff's son, referring to said plaintiff, “ His dad is short six thou-
sand dollars in his accounts and ought to be behind the bars.''.

The defendant, by his answer, denied that he said of the plaintiff that be
was short in his accounts, but admitted that he said of and concerning him
that he ought to be behind the bars, and then set up, in justification of the
last statement, that the plaintiff, while supervisor, had been guilty of vari.
ous wrongful and dishonest acts. None of such acts pleaded in justification
related to or constituted any shortage in the plaintiff's accounts.

Held, that the slanderous statement alleged in the complaint to bave been
uttered by the defendant did not consist of two distinct and separable charges
against the plaintiff, to wit, that he was short in his accounts and that he
should be behind the bars, but constituted a single, entire and indivisible
charge, to the effect that the plaintiff was short in his accounts, and, for that
reason, should be behind the bars, which charge the plaintiff was obliged to
prove, and the defendant justify, in its entirety;

That the defense of justification interposed by the defendant was demur-
rable, for the reason that it did not embrace the entire slanderous charge, but
simply that portion thereof which stated that the plaintiff ought to be behind
the bars.
SNOW:

See Ice.
SOCIETY To effect insurance.

See INSURANCE.
SPECIFIC PERFORMANCE — Of a contract relating to personal property

when compelled.] 1. While a court of equity has jurisdiction to compel
the specific performance of a contract relating to personal property, such
relief will be granted only where the law affords no remedy or where it
would be difficult, if not impossible, to obtain compensation in damages.
BATEMAN 0. STRAUS...

510
2. Of a contract to deliver stock of a corporation - when insufficient
ground is shown therefor.] A complaint in an action brought to compel the
specific performance of a contract by wbich the defendants were alleged to
have agreed to deliver to the plaintiff, as compensation for certain services
rendered by him, 1,000 shares of the capital stock of a corporation, or, in
lieu of such specific performance, to compel the defendants to pay the plain-
tiff $100,000, the par value of the stock, is demurrable, where it does not
allege that the stock had any peculiar value or that there are any circum-
stances rendering a computation of the value of the stock difficult or impos-
sible, or set forth any facts from which it may be inferred that the plain-
tiff has not an adequate remedy at law. Id.

3. Iloco far the demand for relief determines whether an action is at law
or in equity.] While a formal demand for relief with which a complaint
concludes is not conclusive as to whether the character of the action is
legal or equitable, yet where the complaint sets forth facts which support
equally an action at law or in equity, the character of the action is deter-
mined by the relief demanded. Id.
STATE – Letters patent granted by.

See DEED.
STATUTE – Constitutionality of.

See CONSTITUTIONAL LAW.

See SESSION LAWS.
STATUTE OF FRAUDS – Contract void under the Statute of Frauds -
remedy where it has been partially performed – omissions in a writing can.
not be supplied by oral proof. SEYMOUR v. WARREN...

403
See CONTRACT.
STATUTE OF LIMITATIONS:

See LIMITATION OF ACTION.

STREAM:

PAGE

STIPULATION - Reference "to take proof and report the same to the
court"— superseded by a reference "to hear and determine" in an action
subsequently brought in which by stipulation the issues under the first order
of reference are tried. VALENTINE v. STEVENS....

See REFERENCE.

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See PRINCIPAL AND SURETY.

SURROGATE- Jurisdiction of, to order securities, found by an administra-
tor in his decedent's safe deposit vault, to be delivered over to one claiming own-
ership thereof.] 1. The Surrogate's Court has no jurisdiction to require an
administrator, upon a summary application, to deliver money or securities,
which have come into his hands as part of the assets of the decedent's estate,
to a person who claimed that such money and securities were deposited by
him with the decedent for safekeeping, even though the administrator does
not seriously contest the applicant's ownership of the property in question.
MATTER OF CASE v. SPENCER.

2.-

Code of Civil Procedure, section 2472, subdivisions 3 and 4, is not
applicable.] Subdivisions 3 and 4 of section 2472 of the Code of Civil Pro-
cedure do not apply to such a case. Id.

3. Proof that the administrator, as such, holds the securities.] An
admission by an administrator that he "found" certain securities in his
decedent's safe deposit vault is sufficient to warrant the conclusion that his
possession of such securities was in his capacity as administrator. Id.

481

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.

MATTER OF BABCOCK...

See COSTS.

Power of a surrogate to turn an accounting instituted by the executors
of a deceased executor into a judicial settlement-commissions taken by an
executor before their allowance by the surrogate-claim for board by a
brother against the estate of his deceased sister— proof required to sustain
it. MATTER OF FURNISS....

See EXECUTOR AND ADMINISTRATOR.

454

4. Service of a surrogate's citation by publication — eight days need not
elapse between the last publication and the return day.] Where service of a
citation, issued in a proceeding in a Surrogate's Court, is made by publi-
cation pursuant to section 2524 of the Code of Civil Procedure, it is not
necessary that the publication should be completed eight days before the
return day of the citation. MATTER OF DENTON

... 359

563

96

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.
RICHMOND v. FREEMAN'S NATIONAL BANK..
... 152

APP. DIV.-VOL. LXXXVI. 45

SURROGATE - Continued.

Action to compel executors to sell real estate and to account - when
not maintainable-complete relief in the Surrogate's Court.

LEVETT. POLHEMUS.

See EXECUTOR AND ADMINISTRATOR.

See EXECUTOR AND ADMINISTRATOR.

PAGE.

..

TAX Transfer tax-date of payment thereof determined by the exercise
of a power of appointment · the amendment of 1899 as to property dependent
upon contingencies or conditions" is inapplicable.] 1. A testatrix, by her
will, bequeathed certain property to a trustee in trust to hold the same for
a certain individual during his lifetime, and to pay over the rents, interest
and income thereof to such individual for his and his family's use, main-
tenance and support. She further authorized and directed the trustee,
upon the death of the life beneficiary, to transfer and pay over the trust
fund to such person or persons, and in such manner and proportion, and
at such time or times, as the life beneficiary should direct in his last will
and testament, providing that such testamentary disposition should be valid.
In case the life beneficiary should die without leaving a valid will, the testa-
trix directed that the share be transferred and paid over to his children and
their heirs.

495

Held, that the time when the remainder of the trust estate was taxable
was governed by subdivision 5 of section 220 of the Tax Law (Laws of 1896,
chap. 908), as amended by chapter 284 of the Laws of 1897, which provides:
"Whenever any person or corporation shall exercise a power of appoint-
ment derived from any disposition of property made either before or after
the passage of this act, such appointment when made shall be deemed a
transfer taxable under the provisions of this act in the same manner as
though the property to which such appointment relates belonged absolutely
to the donee of such power and had been bequeathed or devised by such
donee by will;"

That, under this provision, it is the exercise of the power of appoint-
ment and not the creation of that power which effects the transfer which
the statute makes taxable, and that the remainder was, therefore, not taxable
until the time arrived for the exercise of the testamentary power of appoint-
ment conferred upon the life beneficiary;

That the subdivision quoted had not, at least so far as the trust estate in
question was concerned, been repealed by implication by chapter 76 of
the Laws of 1899, which amended section 230 of the Tax Law by inserting
therein the following provision: When property is transferred in trust
or otherwise, and the rights, interest or estates of the transferees are depend-
ent upon contingencies or conditions whereby they may be wholly or in
part created, defeated, extended or abridged, a tax shall be imposed upon
said transfer at the highest rate which, on the happening of any of the said
contingencies or conditions, would be possible under the provisions of this
article, and such tax so imposed shall be due and payable forthwith out of
the property transferred."

4.

Quare, whether the amendment of 1899 was intended to apply at all to cases
where a life estate is coupled with a testamentary power of appointment to
be exercised at the conclusion of such life estate. MATTER OF HOWE....... 286

2. What statement, filed by an electric illuminating company with tax
commissioners, is sufficient to present the questions of overvaluation and of ine-
quality of assessment of its plant.] An application made by an electric illu-
minating corporation to the commissioners of taxes and assessments of the
city of New York for a reduction of the assessment levied upon its real estate,
which consisted of foundations, substructures, superstructures, conduits,
pipes, wires, cables and connections in the borough of Brooklyn, stated as
follows: "It finds that the same has been assessed on the assessment roll of
1899 at a valuation of nine hundred and five thousand dollars ($905,000),
whereas the same should not have been, in its judgment, valued at more
than five hundred thousand dollars ($500,000) to be in proportion to the
assessed value of similar property, and in accordance with the fair market-
able value thereof.

"The said system, comprising the electric system of distribution of your
petitioner, whereby it distributes electric light and power throughout the

TAX-Continued.

said borough, is being superseded by different systems of electric distribu-
tion. The entire system has been deteriorated and damaged by the action of
stray currents in the ground not owned or controlled by your petitioner,
causing a deterioration in the said system by a process known as electrolysis;
much of the system has been in the ground for many years, and is worth but
a part of its original cost; the present cost price of similar material is much
less at the present time than it was when said system was put in."
Held, that the application was sufficiently broad to present to the commis-
sioners the questions of overvaluation and of inequality of assessment.
PEOPLE EX REL. EDISON EL. ILL. Co. v. FEITNER...

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3.

The amount thereof must be inserted in the tax roll before a warrant
for its collection is signed and issued.] A warrant for the collection of vil-
lage taxes, signed by the president of a village and countersigned by the
clerk thereof, contained the following direction: "You are hereby com-
manded to receive from each of the taxable inhabitants and corporations
named in the foregoing list, and of the owners of real estate described
therein, the several sums contained in the last column of the said list opposite
to the persons and corporations named."

At the time the warrant was signed, the tax rate had been fixed, but the
amount of the tax against each person had not been specified in the tax
roll. Such amounts were subsequently written in by the clerk.

Held, that the warrant was fatally defective.
VILLAGE OF UPPER NYACK v. JEWETT..

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...

....

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PAGE.

4. Transfer tax- where a will directs that land be sold and the proceeds
be divided, and a beneficiary dies before the sale, the_interest_passing under the
beneficiary's will is taxable as personal property.] Under a will, which
directed that the testator's real estate be converted into personalty, the
testator's daughter was entitled to a share of the proceeds of the realty.
The daughter died before an actual sale and conversion of the real estate,
leaving a will, by which her interest in her father's estate passed to her
husband.

Held, that the interest in the proceeds of the testator's real estate to
which his daughter was entitled, and which passed under the daughter's
will to her husband, should, for the purpose of the transfer tax assessable
on the transfer from the daughter to her husband, be treated as personal
property and not as realty. MATTER OF MILLS...

5. Sale for taxes 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."] A conveyance executed, upon the sale of property
located in the city of Rochester for the non-payment of a State tax, under
section 9 of chapter 107 of the Laws of 1884, providing that there "shall
vest in the grantee an absolute estate in fee, subject, however, to all the
claims which the people of this State may have thereon, for taxes, or other
liens, or incumbrances," transfers a title, subordinate not only to the liens of
purely State taxes, but also subordinate to the lien obtained by the city of
Rochester upon the sale of the property to it for the non-payment of a city
tax assessed against the property previous to the State tax in question.
CITY OF ROCHESTER v. KAPELL.............

6.

Taxation of a corporation paying more than six per cent dividends-
basis of the assessment.] Under section 182 of the Tax Law (Laws of 1896,
chap. 908), which provides that a corporation paying more than six per cent
dividends shall pay a tax, “to be computed upon the basis of the amount
of its capital stock employed within this State," the amount of capital stock
employed within the State is not (as in the case of a corporation paying less
than six per cent dividends) to be deemed such proportion of the capital
stock as the amount of the capital employed within the State bears to the
entire capital of the corporation, but the tax is to be assessed upon the basis
of the capital employed within the State without regard to such rule of pro-
portion. PEOPLE EX REL. COM. CABLE Co. v. MORGAN....

46

254

555

224

577

7. Money invested in stocks and bonds of other corporations, when it is
and when it is not capital employed within the State of New York.] Money
invested by the corporation in securities which are, in their nature,

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