Provisions for giving - Discharge of surety - Banking Law, $ 500.- Chapter 185 of the Laws of 1907, as amended in 1908, pro- vided that all persons before commencing the selling of tickets for transportation to or from foreign countries should give a bond in the sum of $15,000. Chapter 348 of the Laws of 1910, as amended in 1911, provided for the giving of a bond in the sum of $20,000 by any one who should engage in the business of securing deposits of money. Both of said statutes were repealed by section 500 of the new Banking Law (Laws of 1914, chap. 369) which, while providing for the discharge of the surety on a bond given under the statute of 1910, as amended, made no provision for the discharge of the surety on a bond given under the statute of 1907, as amended. Held, that a motion to cancel a bond given pursuant to the statute of 1910, as amended, and for an order discharging and releasing the surety from any and all liability thereon, should be granted with direction to surrender a bond and mortgage as- signed as collateral security, but that a motion to cancel a bond given under the statute of 1907, as amended, should be denied, as said bond is still in force and effect, both bonds having been given by the same person. Matter of Kovacs, 689.
BUILDING CODE.
See Municipal Corporations.
Commercial, of City Court of city of New York - What is legal excuse for adjournment.- Counsel in a case noticed for the com- mercial calendar of the City Court of the city of New York must be prepared to try the case on the following day, or present a legal excuse for adjournment, and in case of failure to comply with this rule must be prepared to accept the consequences of a default. Where a case, duly noticed, appeared on the calendar for trial on a day certain but counsel for defendant neither appeared nor sub- mitted any reason for adjournment, and an inquest was taken, judgment entered, execution issued and a levy made thereunder, a motion by defendant who presented no reasonable excuse for his default will be granted on condition that he pay all taxable costs and disbursements to date, costs of the motion, furnish a bond to secure any judgment recovered by plaintiff and pay the sheriff's fees and poundage under the execution and levy, otherwise the motion will be denied, with costs. West Electric Hair Curler Co. v. Hamilton Corp., 331.
1. Action against, for delaying transportation - Damages. plaintiff, in an action against a carrier for damages in delaying the transportation of goods, is entitled to recover only such dam- ages as were reasonably within the contemplation of the parties when the contract of shipment was made, and where damages were based upon the fact that the goods, ladies' and misses' cloaks, were seasonable goods, but there was no proof that defendant had notice of that fact, nor testimony from which it could be charged with such knowledge, a judgment in favor of plaintiff will be re-
versed and a new trial ordered. Rosenberg v. Delaware, Lacka- wanna & Western R. R. Co., 1.
2. Injury to passenger- Sudden jerk.- That a street railway car was stopped so suddenly and violently as to throw a passenger about to leave the car off her feet, justifies an inference that due care was not used in the operation of the car, and in the absence of other evidence was sufficient in an action to recover for per- sonal injuries to take the case to the jury. Tompkins v. Inter- borough Rapid Transit Co., 20.
3. Action against, for damages caused by delay — When plain- tiff entitled to recover.- In an action against a carrier for dam- ages caused by delay in the recovery of a passenger's trunk filled with clothing which defendant misdelivered, plaintiff is entitled to recover the difference between the cost of intermediate purchases of clothing and the value thereof to her at the time of the delivery of the trunk, together with the necessary expenses incurred in making the purchases and the cost of her reasonable efforts to trace the lost trunk. Bridge v. New York Central & Hudson R. R. R. Co., 35.
4. Who are passengers Payment of fare - Termination of relation of carrier and passenger.- Where in an action for dam- ages suffered by an assault by a street railway conductor the com- plaint was dismissed at the close of plaintiff's case on the ground of his failure to show that at the time of the assault he was a passenger on the car, the question whether he had made out a prima facie case for assault even if no contract of carriage existed cannot be considered on appeal from the judgment, it appearing that plain- tiff did not ask to go to the jury on such issue and did not ask leave to amend. Where the proof was that plaintiff boarded the car with two little boys, one under five years of age, gave twenty- five cents to the conductor and upon his refusal to return more than ten cents in change left the car at D street apparently with the conductor's assent merely for the purpose of having the amount of fare determined by an inspector and which plaintiff was ready to pay, it must be held that he was a passenger, as the conductor either at the time he received the twenty-five cents accepted pay- ment of the full fare and thereby bound the company to carry plaintiff, or at least in consideration of the amount of fare being left with him extended the time during which plaintiff was entitled to be regarded as a passenger before actual and final payment of the fare was made. Plaintiff by demanding back his money after failing to find the inspector saying he was going to take his chil- dren down did not change the previously existing relation of pas- senger and carrier, as plaintiff was entitled to reasonable oppor- tunity to withdraw from the car whether there was an absolute or conditional payment of fare. Seidman v. New York Railways Co., 53.
Requirement of section 256 of Lien Law as to filing — Mortgage declared invalid because of omission to refile.- A chattel mortgage must be filed as required by section 235 of the Lien Law or it
ceases to be valid as against creditors of the mortgagor. Where the mortgagee of chattels, after the expiration of the time within which the mortgage might be refiled, took possession of the prop- erty and advertised it for sale, the trustee in bankruptcy of the mortgagor may maintain an action to have the mortgage declared invalid because of the omission to refile it. Benedict v. Zutes, 214.
1. Terminal station commission created by chapter 842 of Laws of 1911 - Taxpayer's action to have contract for terminal im- provements declared illegal and void ― Complaint dismissed.— The purpose of chapter 358 of the Laws of 1911, withdrawing from the jurisdiction of the grade crossing commission of the city of Buffalo certain territory therein within which most of the stations, yards and other terminal facilities of the many different railroads enter- ing said city are located, is to prevent a conflict of jurisdiction and authority between said commission and the terminal station commission of said city created by chapter 842 of the Laws of 1911 and to vest in the terminal commission full and complete power to deal with the entire situation which necessarily involves not only securing for the public on the railroads terminal facilities but, SO far as practicable and possible, abolishing the a taxpayer's crossing of public streets at grade. Where, in a contract for action to have declared illegal and invalid certain terminal improvements entered into between the termi- nal station commission of the city of Buffalo and the railroad com- panies, defendants, the evidence shows that the commission before adopting the plan of the station buildings complied with section 3 of the statute creating the commission and gave a public hearing on the proposed plan, to which plaintiff appearing by counsel, offered objections and proposed plans of his own which were duly considered, certiorari to review the action of the commission in finally adopting the plan as proposed by it would have been an appropriate remedy for plaintiff to have taken. Where, however, plaintiff, after the expiration of the statutory time to review by certiorari the action of said commission and after the railroads had entered on the execution of the contract attacked and after they had expended vast sums, brings such an action, it may well be that he cannot thereby question the wisdom, feasibility or legality of the plan adopted for the bettering of the terminal facilities of the rail- road defendants. While such objection may be good so far as the general plan is concerned, the question whether certain provisions of the contract made for carrying out said plan are legal and valid still remains, and in the disposition of the case the questions involved will be dealt with as though a taxpayer's action is the sole and appropriate remedy. In such an action the court has no right or authority either to substitute its judgment for that of the com- mission or to adopt or modify any plan or contract it may make even though it be of the opinion that some other different plan would serve the city and the railroads better than the one finally adopted, nor will the court assume to correct errors of judgment Where the com- on the part of public officials if any there are. plaint alleges no fraud, collusion or bad faith on the part of the
CITY OF BUFFALO-Continued.
terminal commission or the railroad defendants, the sole inquiry is whether in adopting the plan and making the contract attacked the terminal commission exceeded the powers conferred by the statute creating it, or has violated the Constitution of the state or some other law so as to render its action illegal and void. The provisions of said contract examined, evidence considered, and held that the terminal station commission had not exceeded the powers conferred on it by chapter 842 of the Laws of 1911, and that the complaint should be dismissed, with costs. McCutcheon v. Terminal Station Commission, 148.
2. Taxpayer's action to have contract for terminal improvements declared illegal and void· What is deemed a public highway- Highway Law, § 209.-Whether Front street, so called, in the city of Buffalo and which since 1830 has been but two rods wide is to be deemed a public highway or not is to be determined by section 2 of chapter 198 of the Laws of 1826, making it lawful for the commissioner of highways to lay out public roads not less than three rods in width, and not by chapter 204 of the Laws of 1897 which not amending the statute of 1826 but section 80 of the High- way Law reduced the width of highways which may be laid out from three to two rods. The authorities of the village of Buffalo acting as highway commissioners had no power under the statute of 1826 either to legally lay out a street two rods wide or to accept a legal dedication of such a street when laid out by the owners of the land over which it passed, and the presumption is that said owners did not intend to do what the statute forbade being done. Statutes relating to the same subject matter, if con- sistent, will be construed as constituting one act, though enacted at different dates. Section 209 of the Highway Law, which pro- vides that "All lands which shall have been used by the public as a highway for the period of twenty years or more, shall be a high- way, with the same force and effect as if it had been duly laid out and recorded as a highway," should be read in connection with said statute of 1826 and effect given to both, and when so read said section 209 should be construed to mean that land used as a highway by the public for twenty years shall become a highway provided it complies with the law as to width, and under such construction said Front street, so called, in the city of Buffalo, never legally became a street. Evidence considered, and held, that plaintiff had failed to establish that Front street, so called, in the city of Buffalo and commonly known as the dock," the principal use of which so far as travel was concerned was by those who had business at the dock and water front, was never legally laid out or dedicated as a public highway or that there has been such a user thereof that it became a highway by prescription. McCutcheon v. Terminal Station Commission, 601.
Charter of Repeal of provisions of Civil Service Law — Re- moval of volunteer firemen - Classification of certain positions · Laws of 1909, chap. 15, § 22, as amended.- Under the saving clause of section 376 of the charter of the city of Lockport (Laws
CITY OF LOCKPORT - Continued.
of 1911, chap. 870), the repeal of the provisions of the Civil Serv- ice Law (Laws of 1909, chap. 15, § 22, as amended in 1910), rela- tive to the removal of volunteer firemen, and the enactment of section 202 of said charter which provides that the employees of the water board shall severally hold their positions during its pleas- ure, do not affect or impair the right to a hearing before removal of one who before the charter by appointment of said board held the position of chief electrical engineer. After relator had served the required time in the volunteer fire department in the city of Lockport he was, after competitive examination, appointed by the city water board as an assistant electrical engineer. Held, that his appointment to the position of chief electrical engineer was not a promotion" within the meaning of the constitutional provision that all promotions in the civil service shall be made according to merit and fitness to be ascertained so far as practicable by examina- tions, it appearing that both positions were classified in the same group and grade and the difference in salary was less than one hundred dollars a year. Matter of Murray, 625.
walls 1. Adjoining landowners - Protection of adjoining Building Code, § 22.- Under section 22 of the New York Building Code the obligation to sustain a wall adjoining land upon which an excavation is proposed to be made exists not only where the excavation is actually carried to a depth of more than ten feet below the curb but also where the intention is to carry it to such depth. Where it is conceded on the trial that defendant caused to be filed with the building department of the city of New York plans for the erection of a new building on her property adjoin- ing the property of plaintiff, and defendant in her application stated that she intended to excavate below a depth of ten feet and thereafter and before plaintiff had expended money in underpin- ning, bracing, preserving and completing his foundation wall the bureau of buildings notified both parties that plaintiff's adjoining wall was in an unsafe condition by reason of the excavating work being done by defendant, plaintiff is entitled to recover the amount so expended, the contract for the demolition of the old building and the erection of the new one providing that the builder should comply with section 22 of the said Building Code and protect and safeguard plaintiff's wall, which he failed to do. The duty resting on defendant to request permission to enter on plaintiff's premises to do the work necessary to support the wall, it was no defense to the action that plaintiff did not proffer such license without re- quest therefor. Wear v. Koehler, 109.
Right of city to erect elevated 2. Use of streets in, as highway · When action of Condemnation proceedings - railroad over street - commissioners of estimate and assessment not reviewable.— Where a street in the city of New York has been used as a highway for thirty or forty years, and for twenty years it has been under the exclusive control of the city for all street and highway purposes without the assertion of any claim of ownership except in sub- ordination to the public easement, an application for the appoint
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