INSURANCE (BURGLARY)- Continued. broke out and was confined to the floor below plaintiff's apartment contributed to the loss, there can be no recovery and defendant is entitled to judgment. Sloan v. Massachusetts Bonding & Ins Co., 412. INSURANCE (FIRE).

1. Action to recover on policy of Evidence Proofs of loss - Trial Pleading.- In an action begun in November, 1917, to recover on a fire insurance policy, a complaint alleging that in July, 1917, after the occurrence of a fire in January, 1917, which totally destroyed the insured property, the plaintiff " fully complied with the terms and provisions of the said policy, and did furnish to the defendant satisfactory proofs of the said loss, and the defendant accepted of the said proofs, and retained the same without objection as and for a full and complete compliance with the terms and provisions of the said policy, and that more than sixty days have elapsed since plaintiff furnished the said proofs of loss, etc.," is a sufficient statement of facts to enable plaintiff to offer proof at the trial as to whether defendant by retaining, without objection, the proofs of loss furnished waived the terms of the policy on the question of the sufficiency of the proofs of loss and the time of service thereof. Whether there was such a waiver is a question for the jury and should not be disposed of on the hearing of a demurrer to the complaint. Judgment in favor of plaintiff, overruling the demurrer, with leave to answer within twenty days on payment of costs. Miglier v. Phönix Insurance Co., 461.

2. Reformation of policy of Actions Condemnation proceedings -- Title Statutes Stipulation Muncipal corporations.--Where by the mistake of the insurer's agent, though he was told the names of all the persons interested in the property and what their respective interests were, the name of the life tenant, as owner, was written in a policy of insurance covering a building on the property devised, and the remaindermen and their attorney, all of whom were consulted as to the insurance before the policy was issued, failed to see to it that it was properly written, there can be no reformation of the policy on the ground of mutual mistake. In an action to recover on the policy for damage by fire to the building it appeared that the title to the devised property was just the same as it was when the policy was issued, because, though before the fire the property had been taken by the city for a public use and a certified copy of the order of confirmation of the award made to the owners had been recorded in the proper county clerk's office as required by the statute applicable in the condemnation proceedings, it was not until sometime after such recording that the fire occurred and subsequently thereto a trustee appointed for the purpose of receiving the proceeds of the award for the benefit of those interested therein. Held, that as the title to the property had not passed to the city and it had not before the fire entered upon the property as owner and was not entitled so to do under the statute, a contention that there had been a forfeiture of the policy because of a change in the title, interest or possession INSURANCE (FIRE) - Continued. of the insured building resulting in the order of confirmation of the award made in the condemnation proceeding, was untentable. Fort v. Globe & Rutgers Fire Ins. Co., 584. JUDGMENTS.

1. When reversedForeign corporationsContractsAppeal.A judgment in favor of a foreign corporation, not authorized to do business in this state, for the purchase price of goods sold under a contract in this state, must be reversed and the complaint dismissed. Pittsburgh Electric Specialties Co. v. Rosenbaum, 520.

2. When reversed Usury Negotiable instruments Appeal. -Where upon a trial of an action on defendant's demand note given for a loan, the defense being usury, it clearly appeared that plaintiff's agents, with full authority to act and as a part of the same transaction, demanded and received from defendant usurious interest and that the making of a third party payee of the note was a mere subterfuge, a judgment in plaintiff's favor will be reversed and the judgment directed in favor of defendant. Schultz v. Schaffer, 546.

3. Stipulation Appeal Trial Evidence Cable companies.Where, on the trial of an action to recover $370.81 charges for transmitting twenty-one cable messages between the city of New York and the island of Java, Japan, Egypt, England and towns on the continent of Europe, it was conceded that defendant was liable for six of said charges amounting in all to $112.05, and an operator for plaintiff testifies that he sent a message addressed to a certain person in Batavia over the wire to another employee of plaintiff at a certain place in Ireland from whence it had been delivered to another company and forwarded to its destination, and it is stipulated that similar testimony will be given as to the other messages, that plaintiff had no cable lines direct to the points of destination and that it was understood by defendant that plaintiff had to forward the messages over connecting lines, and no attempt was made to show that any of the messages except said six had ever been delivered, a judgment in plaintiff's favor for the full amount claimed will be reversed unless plaintiff stipulates to reduce the judgment to $112.05, in which event the judgment as reduced by stipulation will be affirmed. Commercial Cable Co. V. Bauer Co., 699.

See Default; Negligence; Negotiable Instruments; Physicians.


§ 770. Matter of Gumpel v. Gurvitch, 536.

Š 773. Houk v. Van Horn, 263. JURISDICTION.

1. Meaning of any equity jurisdiction- Depositions Constitutional law.—The term “any equity jurisdiction” as used in section 18 of article VI of the Constitution of 1894 must be construed to mean jurisdiction of proceedings and remedies which were recognized at the time of the adoption of said Constitution

as distinctly equitable in their nature, which an examination of a
party before trial, at that time, was not. Lotz v. Standard Vul-
canite Pan Co., 68.

2. Accounting by testamentary trustees - Surrogate's Court
Supreme Court. Though in proceedings for an accounting of
testamentary trustees the Supreme Court has concurrent jurisdic-
tion with the Surrogate's Court it will not ordinarily take jurisdic-
tion thereof where the same questions are involved in prior
proceedings in the Surrogate's Court between the same parties.
Where, in an action brought to have adjudged void two certain
promissory notes made by one of the defendants to the order of
plaintiff and discounted by the defendant bank for the maker;
to have adjudged void for want of consideration an assignment by
plaintiff to said bank of a certain legacy as collateral security for
the notes; to have an assignment of an interest in a certain
mortgage delivered by the defendant testamentary trustee to
plaintiff in part payment of such legacy, and afterwards returned
by plaintiff to such trustee, delivered back to plaintiff, and also
to have the rights and priorities of the several parties as assignees
of another legacy under the same will adjudicated and determined,
the defendant trustee seeks equitable relief against the plaintiff
and also an affirmatiove judgment for moneys paid to him on
account of such legacy in disregard of the assignment thereof to the
bank and inadvertently overlooked by the trustee upon the judicial
settlement of his trust, and it is doubtful whether the Surrogate's
Court has jurisdiction to determine some of the questions presented
by the answer of the defendant trustee, this court should entertain
the action and proceed to a determination of the questions involved.
Van Buren v. Wensley, 248.

3. Of Municipal Court of the city of New York Actions
Judgments Municipal Court Code. After the dismissal, for want
of jurisdiction, of a Municipal Court action, the plaintiff, the subse-
quent assignee of the cause of action, instead of taking her case into
a court of competent jurisdiction, did nothing until by the enact-
ment of the Municipal Court Code she became entitled to seek her
remedy in the Municipal Court of the city of New York and brought
her action in that court. Upon affirming a judgment in her favor
held, that the Municipal Court Code neither increased nor diminished
her substantive rights but simply gave her in addition to the then
existing courts a new court in which to assert them. Cahill v.
Wissner, 313.

4. Of County Courts to set aside certain transfers of real estate
Fraud - Receivers Accounting. The County Court has not
jurisdiction, even by consent of the parties, of an action to set
aside certain transfers of real estate alleged to have been made in
fraud of creditors, where the plaintiff asks for the appointment of
a receiver and for an accounting of moneys and the judgment
sought will not affect all of the defendants in the same way.
Ertrachter v. Locust Building Co., 368.

See Municipal Court of City of New York; Service.

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