received thereunder, and a failure to claim the right granted to him
by the statute, to continue in possession of the premises upon the
payment of a reasonable rent, is not waived by his failure to avail
himself of such right at the first opportunity. B. & S. Realty Cor-
poration v. Wald, 195.

3. When motion directing clerk of the court to deliver warrant
denied - Landlord and tenant· Pending proceeding - Statutes —
Laws of 1920, chap. 942.- Until the warrant in a summary pro-
ceeding is actually issued, the proceeding is pending within the
meaning of chapter 942 of the Laws of 1920, even though a final
order has been entered in the proceeding. Where a tenant obtained
the right to continue in possession of the premises after September
8, 1920, solely because of a stipulation made in a summary proceed-
ing to leave the premises peaceably on September 30, 1920, the land-
lord consented to stay the execution of the final order and the court
granted a stay until September 30, 1920, and the tenant, relying
upon the provisions of chapter 942 of the Laws of 1920, in effect
September 27, 1920, refuses to give up possession on the thirtieth,
a motion for an order directing the clerk of the court to deliver to
the landlord the warrant in the summary proceeding as of September
8, 1920, was properly denied, as until the warrant actually issued
the summary proceedings are pending. Tauszig v. Kantor, 366.

4. When final order in, reversed · Statutes-Co-operative cor-
porations Landlord and tenant - Attornment — Laws of 1920,
chap. 942. The co-operative plan of holding property to be used
for dwelling purposes, authorized by chapter 942 of the Laws of
1920, must cover the entire building. Where in a proceeding under
said statute to recover possession of an apartment in a building in
the city of New York alleged to be owned by a corporation under
the co-operative plan authorized by said statute, it appears that the
alleged corporation is merely a substitute to evade the statute; that
there are two vacant apartments; that several are held under plural
ownership; that one was rented without lease or stock as required
by the statute; that persons and an outside corporation owning
more than one apartment clearly do not want them for their own
use but for speculation, and that the petitioner is simply a stock-
holder in the alleged co-operative corporation claiming to attorn to
it for rent collected, a final order in the summary proceeding award-
ing him possession of the premises will be reversed with costs, and
the petition dismissed on the ground that it was established that
there was not such "good faith" in the sale of the property to the
corporation as the statute requires. Ravitz v. Simetz, 406.

5. When tenant waives right to object to defects in proceedings —
Jurisdiction Landlord and tenant · Code Civ. Pro. § 2231(1a).
The technical rules that once were in vogue in summary proceed-
ings should no longer prevail. The amendment (Laws of 1920,
chap. 942) to section 2231 of the Code of Civil Procedure consists
of the insertion of a new subdivision, 1a, which provides "No pro-
ceeding as prescribed in subdivision 1 of this section shall be main-

occupied

tainable to recover the possession of real property
for dwelling purposes except
or a proceeding where the
owner of record of the building being a natural person seeks in
good faith to recover possession of the same

66

for the im-

mediate and personal occupancy by himself and his family as a
dwelling." Held, that in a summary proceeding against a tenant
holding over based upon the claim that one of the landlords wished
the property for his own residence, it was not necessary that the
petition should allege either that the landlord is a
natural person
or the "owner of record" of the property. The court having gen-
eral jurisdiction of the subject matter the failure to allege any fact
essential to give jurisdiction of the person might be waived by the
tenant. Where the tenant made no mention of the alleged defect in
the petition until after the trial had closed and then not until it was
pointed out by the court and the landlord's deed showing that he
was the owner of record of the property was received in evidence
without objection, the landlord's right to maintain the proceeding
was fully established and the tenant's right to object to the petition
as defective was waived. Kaplan v. Bernstein, 413.

6. Non-payment of rent · When court has power to adjudicate
reasonable amount of rent - Landlord and tenant Statutes
Code Civ. Pro. §§ 2231, 2244.- Where the petition in a summary
proceeding under section 2231 of the Code of Civil Procedure as
amended by chapter 945 of the Laws of 1920, for non-payment of
rent, alleges that the rent involved is no greater than the amount for
which the tenant was liable for the month next preceding his default,
and the tenant pleads that the rent demanded is unjust and unrea-
sonable and that the agreement, therefore, is oppressive, the court.
upon findings that such rent is excessive, has power under section
2244 of the Code of Civil Procedure, as amended by chapter 137 of
the Laws of 1920, to adjudicate what is the reasonable amount of
rent. Needelman v. Levine, 419.

7. Landlord and tenant — Improving existing building is not
"demolishing the same with the intention of constructing a new
building"-Laws of 1920, chap. 942.- The plans and specifica-
tions for changes in a seven-story corner apartment house in the
city of New York were designed to convert it into a building to
provide for twenty-five families, and, in substance, the physical
changes consisted in the removal of a great many partitions, the
installation of two new bathrooms and toilets on each floor, the
introduction of new dumbwaiter shafts and new plumbing through-
out the building and the erection of an additional fire escape, but
no interference was contemplated with the foundations, walls, roofs
or floors. Held, that there was no intention to demolish the build-
ing for the purpose of erecting a new one, within the meaning of
chapter 942 of the Laws of 1920, and a final order in favor of the
landlord in summary proceedings will be reversed and the petition
dismissed. Rosman Realty Corporation v. Quinn, 510.

See Landlord and Tenant; Municipal Court of the City of
New York.

SUPREME COURT.

See Criminal Procedure; Jurisdiction.

SURROGATES' COURTS.

Jurisdiction in the accounting of an administrator of testamentary
trustee who died without the county in which will was probated.-
The Surrogate's Court of the county where a resident's will was
admitted to probate has exclusive jurisdiction of a proceeding for
the judicial settlement of the accounts of the administrator of the
testamentary trustee who died in another county, where the letters
of administration were granted. Matter of Edgar B. Pinckney, 602.
See Discovery.

TAXES.

-

-

-

1. Taxation Jurisdiction of commissioner of taxes, etc., in New
York city Assessment of property of manufacturing corporation
When objection to form of complaint and procedure deemed
waived - Owner of property is " party aggrieved" within section
290 of the Tax Law and section 906 of Greater New York charter,
though tenant bound to pay taxes - Certiorari - Review of assess-
ment for overvaluation Boilers, generators, etc., in buildings
assessable as real estate Tax Law, §§ 37, 219-j, 219-1 - Greater
New York charter, § 895 — Assessment reduced. All that is neces-
sary to the exercise of jurisdiction by the commissioner of taxes and
assessments of the city of New York to hear and determine a com-
plaint in relation to an assessment upon property under section
895 of the Greater New York charter is, that within the statutory
time limit a complaint in writing stating the grounds of objection
to the assessment be presented to the commissioner. The form
of the complaint, the particularity with which the property shall
be described or the objections specified, are mere matters of pro-
cedure and do not go to the jurisdiction. The rule that technical
objections to the form or sufficiency of pleading are waived if not
taken in advance by proceeding to a hearing upon the merits, applies
to proceedings before said tax commissioner to have an assessment
revised. Where the application for the revision of such an assess-
ment meets all the requirements of section 37 of the Tax Law and
of section 895 of the Greater New York charter and is referred to
a deputy tax commissioner for reexamination, and the hearing upon
the merits is had without objection at any time being made to the
form or sufficiency of the application, a reassessment may not be
denied on the sole ground that the application was insufficient; the
objections are deemed to have been waived. The legislature in
retaining by section 290 of the Tax Law and section 906 of the
Greater New York charter the statutory remedies heretofore pro-
vided for the revision and correction of assessments by a writ of
certiorari, did not intend to exclude from its benefits an owner of
property whose tenant by its lease was obligated to and did pay the
taxes assessed against the property, and relator, the owner of the
property in question here, is clearly a "party aggrieved" within
section 290 of the Tax Law and section 906 of the Greater New
York charter and entitled to maintain certiorari proceedings to
review and correct an assessment against its property. The relator,
a domestic manufacturing and mercantile corporation, is the owner
of a plot of land in the city of New York, having a frontage of
250 feet on each of two streets and a depth of 200 feet, upon which
there are a four-story freezing house, a four-story engine building
and a six-story boiler house. In the total assessment of $400,000,

TAXES- Continued.

upon the real estate in question for each of the years 1918, 1919
and 1920, there was included the alleged value of machinery and
equipment in the buildings amounting to $133,000, which relator,
on certiorari to review the assessment as erroneous for overvalua-
tion, claimed was personal property and exempt from taxation
under sections 219-j and 219-1 of article 9-A of the Tax Law, and
that the true valuation of the real estate was $267,000, which claims
were denied by the return to the writ of certiorari. Held, that
relator having by a preponderance of proof overcome the presump-
tion that the machinery and equipment could not be removed with-
out material injury to the buildings, a finding that all such machin-
ery and equipment, with the exception of boilers, generators and
main shafting, were so removable and not essential to the support
of the buildings, is justified, and the conclusion follows, that all
the machinery and equipment included in the machinery assessment,
except as above stated, was personal property, not assessable as
real estate, and therefore exempt from local taxation during the
years in question. A contention of the relator that under section
219-1 of the Tax Law as it stood when it was amended in 1919,
only two of the six boilers used for the purpose of operating an
ice-plant are taxable, because two is the maximum number which
would be required to operate machinery in an ordinary building
of the same size as relator's, is untenable. Within the purview of
said statute, which exempts boilers from the exemption therein pro-
vided, all six boilers are an integral part of the building and so long
as they remain therein are assessable as real estate. The actual
market value on the taxable status dates of all the boilers as well as
of the generators, main shafting and pulleys, concededly taxable,
amounting in the aggregate to $36,105, as found by the court, must
be deducted from the actual market value of the machinery and
equipment included in the machinery assessment of $133,000, as of
the several taxable status dates, and added to the building assess-
ment. The relator having fully established all the prerequisites
necessary for a correction of the assessments and the court having
found that on the several taxable status dates the actual market
value of the land was $80,000 and the actual market value of the
buildings was $187,000, to which should be added $36,105, de-
ducted from the actual market value of the machinery and equip-
ment on said dates it is accordingly held, that there was an over-
valuation in each of the years in question, to the extent of $96,895,
and the several assessments will be reduced to the sum of $303,105.
People ex rel. Ruppert Realty Corp. v. Cantor, 519.

See Transfer Tax.

2. A tax voluntarily paid to the person authorized to receive it
under a mistake of law without coercion or duress cannot be recov-
ered. Brotherhood Wine Co. v. State of New York, 682.

See Transfer Tax.

TELEGRAPHS AND TELEPHONES.

Telegraph company cannot relieve itself from the consequences
of its wilful misconduct or gross negligence — Liability for non-
delivery of message — Measure of damages. A telegraph company
is responsible for its neglect to perform its duties to one to whom

TELEGRAPHS AND TELEPHONES - Continued.

a telegram is addressed as well as to the sender, and a stipulated
limitation of liability binds both. While a telegraph company is
liable for any neglect to exercise due care in the correct and prompt
transmission of messages, it may by contract limit its liability for
mistakes or delay in the transmission of messages, but the general
rule, irrespective of such a contract, is, that the company cannot in
such manner relieve itself from the consequences of its wilful mis
conduct or gross negligence. Where a telegraph company never
sent a cable message delivered to it for transmission, and the failure
to deliver is not shown to have been due to mistake in transcribing
or difficulty is transmitting, the company is guilty of gross negli-
gence and is not relieved by limited liability stipulations nor does
a stipulation relating to the time for presentation of notice of claim
exempt it from liability. In an action for damages for failure to
transmit a cable message, brought by the addressee, it appears that
a few days after the sender of the message had cabled from South
America to plaintiffs in New York city an inquiry as to the price
of brass tubes of a specified length and width, he sent to plaintiffs
the cable forming the basis of the present suit, from which it
plainly appears that the length and width of the tubes ordered were
different from those contained in plaintiffs' offer. Held, that while
the message could not be held to be an unqualified acceptance of
plaintiffs' offer, it was at least a definite offer by the sender to
plaintiffs contingent upon their acceptance, and that the addressee
was entitled to show whether he would have accepted the offer, and
that upon such testimony it became a question of fact whether he
would have accepted it or not. This question of fact having been
resolved in favor of plaintiffs they were entitled to judgment for
the difference between the market price and the contract price.
Freschen v. Western Union Telegraph Co., 289.

TRANSFER TAX.

1. Appraisal — When accrued interest on investments should not
be included in valuation Tax Law, § 221-b.- In fixing under sec-
tion 221-b of the Tax Law, the additional tax of five per cent on
investments left by a decedent who died in May, 1919, it is improper
to include in the valuation, the accrued interest on the investments
to the date of decedent's death. The system of transfer tax ap-
praisers in reporting valuations, to include the market value of
investments plus interest, is one of convenience only, and cannot
be used to sustain a transfer tax under section 221-b of the Tax
Law. Matter of William H. Yawkey, 237.

--

2. Vested remainders under trust deed -Life tenant assumed to
survive trust period — Exemptions - Tax Law, § 221-a.- Decedent
died intestate leaving a son and daughter as her only heirs-at-law
and next of kin. Under a trust deed of decedent a remainder was
to vest when said son attained the age of twenty-five years, or upon
his previous decease. At the time of the transfer tax appraisal
the son was seventeen years of age. The order fixing the tax
assumed that the son had reached the age of twenty-five years and
considered the remainder as vested as of the date of the appraisal
in the son and daughter, thereby taxing the transfer of the various