the warrant was void, and would not 2. Where the comptroller has in his hands 3. The building in New York City owned by 4. The school-house referred to in the statute 5. After the books are closed. there is no 7. As a comptroller's deed is made only pre- 8. Any material departure from the form of 9. What will constitute such a departure. 10. The defendant corporation is taxable 12. It is not sufficient to exempt a corpo- 13. In computing the tax the whole capital and paid is to be taken as the basis. The 14. Property passing to a nephew of the 15. A legacy of a sum less than $500 is not 16. The Home for the Friendless at New- 17. While the church edifice of a religious 18. In proceedings under Chap. 269, Laws of 19. In arriving at such valuations it is proper 20. Where no notice of the completion of the 21. The provision of § 8 of Art. 3, Chap. 230 belonging to the same owner in one parcel has reference to the person in whose name as owner or occupant they are assessed, and not the technical owner.The People ex rel. Morgenthau v. Cady, 291. 22. The time of payment of the purchase money does not determine the date of the certificate, which will be presumed, in the absence of allegations to the contrary, to be that of the day of the sale.-Id. 23. Plaintiff is a religious corporation within the provisions of the statute of exemptions, and its building, the "Young Men's Institute," is exempt from taxation.-The Young Men's Christian Assn. v. The Mayor, etc., of N. Y., 300. 24. Where a corporation entitled to exemption from taxation acquires the property and commences the erection of its building before a tax is laid, it does not lose its right to exemption because the building is not completed until after the tax is confirmed.-Id. 25. The power of the comptroller to cancel a tax sale for invalidity is not restricted to cases where the invalidity appears upon the face of the proceedings, but extends to all cases in which he discovers that for any cause it is invalid or ineffectual; on an application by a purchaser to have the sale cancelled the comptroller has power to take proof of the defect and witnesses and deponents are liable to the penalties for perjury for swearing falsely on such an inquiry or hearing.-The People ex rel. Ostrander et al. v. Chapin, 320. 26. Mandamus is the proper remedy to set the comptroller in motion when he refuses to entertain or act on such an application. -Id. 27. The property of persons dying after June 10, 1885, the date upon which Chap. 483 of the Laws of 1885 was approved by the governor, and before June 30, 1885, as well as the property of persons dying after the latter date is subject to the tax imposed by said statute.-In re estate of Chardavoyne, 352. 28. A county treasurer is not authorized to collect from the trust funds the fees allowed him by law for selling lands for taxes which are struck off to towns without the audit of the town board.-Warren v. Baldwin, 419. 29. The determination of the assessors in fixing the amount of arrearages of taxes and assessments should not be reviewed or reversed on a mere motion.-Gilman v. Gilman et al., 470. 30. Where a purchaser at a tax sale is made a defendant in an action of partition the allowance of a supplemental answer setting up the tax deed subsequently delivered to him is a proper exercise of discretion.-Id. 31. Where the national bank shares held by a corporation are included in the valuation of its capital stock and after the deductions and exceptions allowed by law the corporation is not liable to taxation on its personal property, the bank stock cannot be separately assessed for taxation.-The People ex rel. The Hanover Fire Ins. Co. v. Coleman et al., 481. 32. The assessors annexed an oath in the old form to the roll and delivered it to the supervisor, but before it was produced before the board, and on Oct. 17, they took and annexed to the roll an oath in the proper form. Held, That the verification on Oct. 17 was a compliance with the statute; that to that extent the provision as to the time of verification was directory only.-The People ex rel. The R., W. & O. RR. Co. v. Jones et al., 568. See CORPORATIONS, 11; RAILROADS, 13. TENANTS IN COMMON. 1. Under an agreement by which one party is to plant and raise a certain crop on land of another and to have one-half thereof the parties become tenants in common of the crop.-Burns v. Winchell, 475. 2. Where one tenant refuses access to the common property to the other, and on request for such other's half denies that he has any property there is a sufficient demand and refusal to constitute a conversion.-Id. 3. The mere giving of a mortgage by a tenant in common on his share of the property does not deprive him of his right to possession.-Id. See CONVERSION, 1, 2, 6; WILLS, 19. TENDER. 1. The effect of a tender and payment of money into court to make said tender good is a concession of record that the party to whom the tender is made is entitled to the amount in any event, and the party making said tender is not at liberty to go back upon his own concessions of record and claim the return of the amount paid into court after having accomplished the object for which said tender was made, even if the tender was made under a mistake of law and was not necessary in order to obtain the desired result.-Hoffman et al. v. Steinau et al., 137. 2. When goods are shipped from Europe and are taken from the custom house by the consignees who, shortly thereafter, make a general assignment for the benefit of their creditor, the consignors of said goods can rescind the sale and maintain an action to recover the goods from the assignee without tendering to the latter the amount of the duties paid by his assignors.-Id. TITLE. See ADVERSE POSSESSION; CONVERSION, 7; INFANTS, 2; SALE, 1; WILLS, 13. TOWN BONDS. 1. It makes no difference as to the duty of the county treasurer under § 4, Chap. 907, Laws of 1869, that the taxes to constitute the sinking fund were not expressly collected or paid over to him for that purpose; it is his duty to separate and set apart the taxes specified, even though a deficiency in funds required for town, village, county or State purposes is thereby created.—In re Clark v. Sheldon, 530. 2. The provisions of the Act of 1869 do not conflict with § 8 of Art. 7 or § 20 of Art. 3 of the Constitution.-Id. TOWNS. See HIGHWAYS, 5–7. TRADEMARK. 1. When ordinary attention on the part of customers will enable them to discriminate between the trademarks of different manufacturers or dealers, the court will not interfere by injunction.-The Vacu um Oil Co. v. The Buff. Lubricating Oil Co., 570. TRUSTEES. 1. The doctrine that a trustee cannot, without special leave of the court, purchase the property of his trust, and that, unless the beneficiary chooses to affirm such a purchase, it will be disregarded upon his demand, is thoroughly well settled.-In re estate of Le Compte, 324. 2. A decree settling the accounts of executors and charging them with certain sums as received from the sale of certain real estate sold by them under a power of sale given them by the will will be set aside upon the application of infant residuary legatees and the infants allowed to file objections to the account upon proof that the purchaser, in pursuance of an ar rangement with said executors, recon veyed the said property to the latter, and that the guardian who represented the infants upon the accounting did not acquire knowledge of said fact until after the entry of the decree, even though it is conceded that the executors performed their whole duty in giving publicity to the auction sale of the property in question, that the purchase price thereof was commensurate with its value, and that the executors, in all that they did, acted honestly and in good faith.-Id. See CORPORATIONS, 3-6; VILLAGES, 2. TRUSTS. 1. A donee's rights arising from an executed gift, or from an executed voluntary settlement, may be enforced against the donor or settlor.-Westlake et al. v. Wheat et al., 31. 2. Defendant's father devised property to all his children except plaintiff's mother, giving a double share to defendant, and left an instrument which defendant and her husband signed with full knowledge of the will, whereby it was stated that half of the bequest was intended for plaintiff's mother and her children, and in which they accepted the trust and promised to carry it out. Held, That a fegal trust was created by the instrument enforceable against defendants.-Id. 3. A trust created by the will of a testator to apply one equal one third part of the net annual income of his real estate to the use of his wife for life, to be received by her in lieu of dower, while it is of no greater interest than the dower estate might be, still, if taken by the wife in lieu of dower, supersedes all questions of dower and operates to suspend the power of alienation during the life of the trust as though the beneficiary stood in any other relation than widow of the devisor.-Storm et al. v. Storm et al., 44. 4. The will of testator devised and bequeathed the residue of his estate to his executors in trust to apply one-third of the net income of his real estate to the use of his wife for life to be received by her in lieu of dower, and, upon her death, said trust was to cease and said portion of the income become merged into and form a part of his estate; and upon the further trust to apply the income of his estate to the use and benefit of his sons for their lives, excepting the part reserved to his wife; and, upon the death of either son, to pay over to his issue the share of the income which their father would have received had he lived until the death of testator's surviving son, when the whole of the estate, subject to the rart reserved to testator's wife, if she should then be living, was to be divided equally among testator's grandchildren. Held, The widow having accepted the trust in her favor in lieu of dower, that the will unlawfully suspended the power of alienation of the real estate. That the fact that the will gave the executors a power of sale of the real estate did not affect the question, because the proceeds would still be held in trust under the will charged with the duties and obligations imposed by the trust.-Id. 5. Testatrix devised one sixth of her estate in trust to her executors, to pay the income thereof to her son W. for life, and after his death to pay said income to his surviving children in equal shares until they reach the age of twenty-one years, and then to divide the principal equally among them share and share alike. At the death of testatrix W. and two children were living Held, That the trust for the life of W. was valid; that it was a separate, complete trust and could be permitted to stand alone.-Kennedy v. Hoy et al., 66. 6. Testator by his will gave his entire residuary estate, comprising personal property alone, to his executor in trust with power to sell, etc, and collect the income and with the following directions as to distribution: "I do direct that from the net income my said trustee do pay to my sister M. the annual sum of $125 during her life; and that my said trustee do pay to my brother R. the annual sum of $125 during his natural life; and that my said trustee do pay all the rest, residue and remainder of said income to my daughter H. for and during the full end and term of her natural life. It being my will and I do direct that upon the decease respectively of my said sister M. and my brother R. the amounts of money directed to be paid to each of them respectively as aforesaid be paid as a part of the income of my residuary estate to my aforesaid daughter H. the same as the income of the other parts of said residuary estate are hereinbefore directed to be paid to her. It is my further will and I direct that upon the decease of my said daughter the principal of my estate, as the same is relieved from the payment of the life interests as herein provided by the deaths respectively of the persons for whose benefit the same are respectively created, be divided equally share and share alike by and between " certain specified persons. Held, That the trust respecting the income was void as in contravention of the statute against perpetuities. In re will of Russell, 178. 7. In order to follow trust funds and subject them to the operation of the trust they must be identified.-In re Cavin et al. v. Gleason, 382. See ATTORNEYS, 8; DEEDS, 3, 9; POWERS, 1; WILLS, 6. UNDERTAKING. 1. While a judgment debtor is imprisoned upon execution, the right of action of the judgment creditor upon an undertaking given on appeal in same action is suspended; but such suspension ends upon the discharge of the debtor under $ 2200 of the Code.—Prussia v. Brown, 554. See REPLEVIN, 7; SHERIFFS, 1-3. USURY. 1. The effect of Chap. 567, Laws of 1880, was to repeal the penalties for taking illegal interest imposed by Chap. 163, Laws of 1870, and actions therefor, pending at the time of its passage, can no longer be maintained.-Nash v. White's Bk. of Buffalo, 194. 2. One who desires the aid of the statute against usury through the interference of a court must make out his title to relief by allegations as well as proof.- The Long Island Bk. v. Boynton, 204. 3. Plaintiff advanced $4,500 on a note for $5,000 at nine months, indorsed by defendant B. for accommodation of the makers, which note had its inception on transfer to plaintiff. Plaintiff "testified that he took it as business paper, and and on the faith of a certificate and affidavit that it was such and that there was no defense of want of consideration, usury or otherwise. Evidence was given showing that he had notice that the note was accommodation paper when he took it. Held, That defendant was not estopped from setting up the defense of usury.-Lewis v. Barton et al., 511. See SUBROGATION. VENUE. 1. After a demand for change of venue has been made it is too late as matter of law to amend the complaint as to the place of trial.-Faherty v. The Schuyler Steam Towboat Line, 92. 2. On motion for change of venue defendant made affidavit that certain persons living in the county to which he asked to have the case removed, were, as he believed, necessary and material witnesses for his defense, and that he expected to prove by them certain facts. Plaintiff read in opposition the affidavits of those persons, in which they alleged their ignorance of and inability to swear to the matters stated in defendant's affidavit. Held, without questioning the good faith of any one, that for the purposes of the motion the persons referred to should not be taken into account.Cunningham v. Turney, 542. VILLAGES. To 1. A city or village is not liable for every change in the natural condition of land made in the improvement of a street or highway which increases the flow of surface water on adjacent premises. warrant a recovery in such a case plaintiff must show a substantial change in the direction or volume of the water unfavorable to himself and resulting from the act of the corporation. -Rutherford v. The Village of Holley, 331. 2. Where the trustees of a village incorporated under the general act of 1870, Chap. 291, appointed one a trustee to fill a vacancy but no commission to him as such was ever signed by the presiding officer, Held, That such appointment was void. The provisions of 1 R. S., 118, § 19, apply to such an appointment.-The People ex rel. Wright v. Willard, 414. See MUNICIPAL CORPORATIONS, 9-14. WARRANTY. See DEEDS, 5; EVIDENCE, 14; SALE, 5, 6. WATERCOURSES. 1. Upon defendant's land was a never failing spring the stream from which flowed on plaintiff's land, where it was used for watering stock. Plaintiff had occupied his land for fourteen years. Defendant filled up the channel and prevented plaintiff from cleaning it out. Held, That the stream was an ancient watercourse and that defendant was liable for the damages sustained by plaintiff by reason of the obstruction of the flow of water on his land.-Bell v. Townsend, 395. 2. In an action for diverting the waters of a stream from a tannery the measure of damages is the diminished rental value of the tannery premises for the purposes of that business during the period of such diversion.-Colrick v. Swinburne et al., 430. 3. Such diversion is a continuing injury, and the wrong is not referable exclusively to the day when the original wrong was committed; an action for damages therefrom is not barred except as to damages which accrued more than six years prior to the commencement of the action. -Id. See PLEADING, 2. WHARVES. See LEASE, 10. WILLS. 1. Evidence sufficient to entitle the question of the execution of the will to be submitted to the jury.-Jones v. Jones et al., 79. 2. Testator gave his residuary estate to defendant, her heirs and assigns forever, and further committed to her the guardianship of plaintiff, his granddaughter, and enjoined upon her "to make such provision for said grandchild, out of my residuary estate now in her hands, in such manner, at such times, and in such amounts as she may judge to be expedient and conducive to the welfare of said grandchild, and her own sense of justice and Christian duty shall dictate." Held, That there was nothing requiring defendant to provide for plaintiff's support during minority; that the provision to be made was left wholly to defendant's discretion and that the court had no power to substitute its discretion for hers.Lawrence v. Cooke, 107. 3. Where there is a devise to one in fee and in case of his death to another, in the absence of language showing a different intention, the contingency referred to is the death of the first named devisee in the lifetime of the testator, and if he survives the testator he takes an absolute fee. The same rule applies where the alternative devise is made to depend upon the death of the first named devisee "without issue."-In re application of The N. Y., L. & W. RR. Co. v. Van Zandt et al., 133. 4. Testatrix gave her entire estate to her daughter without words of inheritance with remainder over in case she died without issue. Held, That the daughter took a base or conditional fee, defeasible by her dying without leaving issue living at her death, but that an indefeasible title in fee could be conveyed by a deed in which she and the remaindermen joined.-Id. 5. Remainders are never to be made contingent by construction when they can be taken to be vested.—Alley v. Conover, 168. 6. A will and codicil are to be considered as one instrument, and although one omits the technical words required for the creation of an express trust, if the other declares the design that the executors shall take the residue for the object declared in the will it is sufficient if from the two instruments it can be implied that the intent was to establish a trust.Ward v. Ward, 174. |