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See Executors and Administrators; Real Property; Wils.

See Ejectment.

See Injunctions; Statutes.

Street improvements Lack of authority of public oficials - Ono
dealing with municipal authorities does so at his own risk Prop-
erty owner not liable directly to contractor for improvements
Evidence. Peters v. Adams, 689.

See Jurisdiction.

See Injunctions.

Who is not a bona fide purchaser for value without notice Wills
- Vacating probate - Posthumous child Damages. After the
executors under the will of a testator who died survived by his
widow, an infant daughter and an unborn child, had conveyed cer-
tain real estate of their testator, the surrogate, upon vacating and
setting aside the decree of probate on the ground that the daughter
had not been legally represented by special guardian and that the
posthumous child was not bound by said decree, opened the probate
proceeding with leave to the daughter to file objections. No steps
having been taken to reprobate the will, letters of administration
were duly issued. In an action to remove an alleged cloud upon
the title of the premises it appeared that, prior to taking title,
plaintiff saw the posthumous child but claimed that he closed the
transaction, throughout which he was not represented by an attor-
ney, upon the assurance of the executors that they would reprobate
the will, which claim was supported by the testimony of one of the
executors, the lawyer who drew the will. Held, that in the circum-
stances plaintiff was not a bona fide purchaser for value without
notice. That in the absence of proof of the existence of a valid
will at the time of the conveyance, of which plaintiff made no offer
of proof, he was only entitled to a return of the consideration paid
by him, the cancellation of the bond and mortgage given in part
payment of the purchase price, and $100 for liquidated damages,
besides any sum paid by him for taxes on the property, as well as
installments paid on account of the principal of the mortgage and
interest payments, together with interest on said several amounts
less the rental value of the property — seventy-five dollars per
month -- during the time of his occupancy. That the sums so pay-
able to plaintiff be decreed to be liens upon the property in question,
and that it may be sold to pay the same. Brazill v. Weed, 546.

See Contracts; Encroachments; Specific Performance; Tres-

pass; Vendor and Purchaser.

Infancy is not a defense to an action in replevin to recover an
engagement ring given by plaintiff to defendant. Benedict v.
Flannery, 627.


1. What insufficient to pass the property in the goods Actions
ContractsTrial - Evidence-Damages Personal Property Law,
O 100, rule 4(1), 145(3).- Rule 4(1) of the rules declared by
section 100 of the Personal Property Law for ascertaining the
intention of the parties as to when the property in goods is to pass
to the buyer, unless a different intention appears, provides that
“ where there is a contract to sell unascertained or future goods by
description and goods of that description and in a deliverable state
are unconditionally appropriated to the contract, either by the seller
with the assent of the buyer, or by the buyer with the assent of the
seller, the property in the goods thereupon passes to the buyer.
Such assent may be expressed or implied, and may be given either
before or after the appropriation is made.Held, that unless an
appropriation to the contract of goods, delivery of which was ten-
dered by the seller after manufacture, was made with the buyer's
assent express or implied, such appropriation is insufficient to pass
the property in the goods. A complaint set forth two causes of
action, one for the purchase price of goods sold and the other for
damages for defendants' breach of contract in cancelling and refus-
ing to be bound thereby. Upon the trial, by the court without a
jury, it appeared that after defendants had ordered from plaintiff
certain coats of two designated style numbers designed and manu-
factured by plaintiff, a number of the coats of the first style were
delivered to defendants who though they accepted and paid for
the goods refused a subsequent tender of the remaining coats of
that style and without reason cancelled the order for the goods of
the other style after a few of the coats of said style had been
delivered, accepted and paid for. When the order for the goods
was cancelled they were all in the course of manufacture. After
they were completed, a few days after the order of cancellation
they were sold in the open market and the evidence tended to show
that at the time of the sale, the market price had dropped twenty-
five to forty per cent since the contract was made. The plaintiff
was given judgment for the full contract price of the goods ten-
dered and for the difference between the contract price and that
for which the goods were sold in the open market, fixed by the
court as the market price of the goods of the style numbers which
the defendants had cancelled. Upon reversing the judgment and
ordering a new trial, held, that the plaintiff's sole right of action,
on the record as it stood, under the first cause of action alleged,
was one for damages for non-acceptance of the goods and that the
measure of damages was controlled by section 145(3) of the Per-
sonal Property Law. The trial judge as to the second cause of
action, which was based on an anticipatory breach of contract, cor-
rectly applied the rule of damages which he should have applied
upon defendants' refusal to accept and pay for the goods described
in the contract constituting the subject-matter of the first cause of
action. Funt v. Schiffman, 155.

2. Goods to be manufactured Delivery in installments
Whether contract divisible question for jury Personal Property
Law, OD 125(3), 126(2), 156.— Where upon a sale of seventy-five
pieces of goods to be manufactured the purchaser accepts delivery
of fifty-nine pieces and rejects the remainder as defective and

SALES – Continued.
returns them to the seller who accepts such return and issues its
credit memoranda therefor, the dismissal of the complaint in an
action to recover damages alleged to have been sustained by reason
of the seller's refusal to replace the defective pieces at the contract
price, is error for which the judgment entered upon the dismissal
of the complaint will be reversed and a new trial granted. Under
the Personal Property Law (O Ø 125(3), 126(2) and 156) a jury
would have the right to determine whether the contract was divisible
and to fix the damages sustained by reason of the delivery of the
defective goods. Rosing v. Parkside Mills, Inc., 624.


See Municipal Court of City of New York.


Negligence-Charter-party-Evidence-DamagesTrial.- While
defendant was in possession of plaintiff's scow without motive power
under a charter-party which included the services of a so-called
“ captain ” whose duty it was to take care of the scow, it was
towed in calm weather to a dock and moored alongside of a steam-
ship for unloading. On the night of the next day the dock was
exposed to the full sweep of a northwest storm which developed
into a hurricane and as a result the scow was injured. Held, that
evidence that the weather bureau had issued storm warnings some
hours before the full strength of the hurricane developed, justified
an inference that defendant, which rested at the close of plaintiff's
case, was negligent in permitting the scow to remain in the position
where necessarily it would be exposed to the full force of the storm,
and that plaintiff was entitled to recover for all damage to the scow
caused by such negligence. Without deciding now, whether there
was evidence tending to show that the captain was in fact negligent
in any respect, an instruction repeated in effect several times that
they could find for the defendant only if they believed that the
accident was caused by the negligence of the captain while in control
of the defendant, was prejudicial error for which a judgment in
favor of plaintiff will be reversed and a new trial ordered. Rice v.
McAllister Lighterage Line, Inc., 166.


1. Action to compelTitleWhen plaintiff entitled to judgment.
- In an action to compel specific performance of a land contract,
it appeared that the premises adjoining on the south, and on which
the premises in suit encroached eight and one-half inches, had been
used for over a hundred and twenty years as an open alleyway and
drive, and that the purchasers of the lots bounding thereon and
their grantees have an easement therein. It further appeared that,
although prior to 1893 the alley was not assessed by the city of New
York, it was taxed from that year to 1915, when the assessment
thereof ceased, and though it was sold several times for unpaid taxes
no action to foreclose the tax liens had been brought. Held, that
the purchaser at either of the tax sales took the title burdened with
the easement of the purchasers of the lots adjoining the alley and
that the encroachment complained of in no sense makes the title

unmarketable, and plaintiff is entitled to judgment. Poetzsch v.
Mayer, 422.

2. If title is good at time of trial specific performance in certain
cases will be decreed even if title defective at time of closing
When the giving of dower would upset the scheme of the will and
the widow has received income from a trust fund in lieu of douer she
is estopped from claiming dower - Wills.- Where at the trial of an
action brought by the purchaser to compel specific performance of
a land contract of which time is not of the essence, the title to the
property is good, the plaintiff may be required to specifically per-
form on his part even though the title was defective at the date of
the closing of title, provided nothing has taken place in the mean-
time to his prejudice which would make performance on his part
inequitable. A contract to convey certain real estate of a testator
having been made by his executors, the intending purchaser, on the
day of closing, rejected the title because of a certain judgment
against the executors which had been assigned and an alleged dower
right of the widow of a former owner of the premises, but the pur-
chaser offered to execute and deliver the purchase money bond and
mortgage called for by the contract and tendered a cash payment
thereunder, on condition that the executors give a convevance clear
of the objections made to the title. Held, that the reception in evi-
dence, on the trial of an action to compel specific performance
brought by the purchaser, of an instrument in writing purporting
to release the premises in question from the lien of said judgment,
duly recorded and properly indexed, cured the objection to the judg-
ment, and that the defendant executors, who also asked for specific
performance, were entitled thereto, it not appearing that such course
would tend to make it inequitable to the plaintiff. It appearing
that to give dower to the widow of the former owner of the property
would necessarily upset the scheme of his will, by which he intended
she should have no dower, and would keep from the testamentary
trustees, who were vested with the title to the entire estate with full
power of sale, a portion thereof, and the widow, having for a
number of years elected in lieu of dower to receive the income of
trust funds into which the proceeds of a sale of real estate by the
said trustees had passed, she would be estopped to set up a claim
of dower in the premises in question. Loria, Inc., v. Stanton Co.,

See Contracts; Landlord and Tenant; Vendor and Purchaser.


See Contracts; Partnership.


1. Laws of 1920, chap. 942.— The provision of chapter 942 of the
Laws of 1920, in effect September 27, 1920, that no proceeding under
section 2231(1) of the Code of Civil Procedure “ shall be maintain-
able” except under certain circumstances therein specified, was not
intended to be retroactive in the sense that it should apply to pend-
ing proceedings. Nothing in said statute of 1920 indicates that the
legislature intended that the provision in regard to pending pro-

STATUTES — Continued.
ceedings should apply only to those in which a final judgment had
already been entered. Levy v. Baum, 201.

2. Construction of Power of board of supervisors to increase
salaries of county officers County Law, Ø 12(5) — Laws of 1913,
chap. 293.-— The legislature having failed to except from the county
officers whose salaries are to be fixed by the board of supervisors
under the broad conditions of section 12(5) of the County Law
notwithstanding any general or special law, the office of commis-
sioner of charities and corrections of Erie county, created by chapter
293 of the Laws of 1913 and the salary fixed thereby, it must be
held that it was the legislative intent that the power to increase
such salaries should remain and be exercised by the board of super-
visors in its discretion, and where the manner of the exercise of
such power has been lawful, the complaint in a taxpayer's action
to restrain the payment of the salary will be dismissed. Wende v.
Board of Supervisors, 250.

3. Interpretation - Power of public service commission to fix
telephone rates - Injunctions Public Service Commissions Law,
0023, 92, 97.- The Public Service Commissions Law neither confers
power upon the public service commission nor imposes the duty
upon it to fix the rates which shall be charged in all cases for tele-
phone service. Under section 97 of the Public Service Commissions
Law the commission has the legal power not only to make orders
fixing maximum rates for telephone service but to abrogate such
orders and consent to an increase of rates. Under the Public
Service Commissions Law the commission, aside from the power
delegated to it by the legislature to fix maximum rates for telephone
service, has power to consent to an increase of rates without deter-
mining what rates are reasonable and should thereafter be observed
as maximum rates, when it appears that the conditions which pre-
vailed when the earlier order was made have materially changed.
The right of the public service commission to consent to an increase
in a rate previously fixed is not subject to any limitation that it
shall be given only after a complete hearing sufficient to enable
the commission to determine the just and reasonable rates to be
charged thereafter. An order of the public service commission
fixing the maximum charges for telephone service is an attempt to
predict for the future the charges that will yield a fair return, and
so long as the Public Service Commissions Law contains no pro-
vision that the commission may not abrogate an order made by it
fixing maximum rates for telephone service or consent to an increase
except as part of an order fixing new rates, the commission, pending
the hearing and determination of an application for an increase in
rates, may consent that the rates fixed and determined by its previous
order be increased by “certain additional percentages.” Subject to
the common law rule that no public service corporation may charge
more than a reasonable rate for service, a telephone company may
at will change its rates for telephone service only by filing schedules
in accordance with section 92 of the Public Service Commissions
Law, unless or until the public service commission has by an order
fixed the maximum rates for such service in accordance with said
section of the statute. By virtue of section 23 of the Public Service

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