NEGLIGENCE - Continued.
templated by the statute, and a charge that the remarriage of the
plaintiff, the husband of the decedent, could not be considered by
the jury in reduction or mitigation of damages was not erroneous,
the jury being also charged that the damages to be awarded should
be limited to the money loss sustained by the husband and child of
decedent, and where plaintiff is given a verdict measured by the
expectancy of the life of the decedent at the time she sustained
her fatal injuries as the result of defendant's negligence, a motion
to set aside the verdict as excessive will be denied. Lees v. New
York Consolidated R. R. Co., 608.

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3. Contributory When claim for damages dismissed- High-
ways - Evidence. While claimant with others was proceeding on a
dark night along a highway maintained by the state, in an auto-
mobile owned and driven by her husband, the car ran into an excava-
tion about seven feet distant from the edge of the macadam pave-
ment, which excavation had been left by a state contractor after
taking a quantity of gravel from land adjoining the highway. Upon
the hearing of a claim for damages to the car and to the clothing
of claimant and her husband, evidence was given tending to sup-
port a claim that the car was being driven partly upon the macadam
and partly upon the earth shoulder, until it arrived at a point
directly opposite the excavation, when, due to the softness of the
earth shoulder, the effect of the rains and the nearness of the side
of the excavation, the soft earth of the shoulder gave way, causing
the car to slide off into the excavation. The evidence for the state,
corroborated by the driver of the car, tended to show that the car
started to leave the macadam at a point about two hundred feet
easterly from the excavation and gradually bearing off to the north,
until at the easterly end of the excavation it ran directly into it.
Held, that as the accident would not have happened had the driver
confined himself to that part of the highway prepared and intended
for travel, it was caused by his negligence and the claim should be
dismissed upon the merits. Short v. State of New York, 617.
See Claims; Insurance (Indemnity).

NEGOTIABLE INSTRUMENTS.

Incomplete note- Actions. An action will not lie to recover
upon a promissory note reading "
after date I promise

to pay," etc. Keister v. Wade, 313.

See Banks.

NEW YORK STATE CONSTITUTION.
Art. 1, 6. People v. Willi, 79.

NON-RESIDENTS.

See Transfer Tax; Wills.

OPERATIONS.

See Contracts.

PARTIES.

See Actions; Alien Enemies; Foreclosure; Title.

PARTNERSHIP.
See Wills.

PENAL LAW.

342. People ex rel. Mayo v. Hanley, 591.

§ 2193. People ex rel. Gabriel v. Warden, 248.

PLEADING.

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1. Verification of, by officer of corporation upon information and
belief Source of information Books and records Code Civ.
Pro. 526. Where the affirmative allegations pleaded in separate
defenses in the answer of a foreign corporation and most of the
denials are made upon information and belief, a verification by
defendant's vice-president, stating that the sources of deponent's
information and the grounds of his belief as to all matters not
stated on his own knowledge are the books and records of the
defendant, is sufficient under section 526 of the Code of Civil Pro-
cedure, and a motion to compel acceptance of the answer will be
granted with costs. Davidson v. Penn-Virginia Coal & Coke Corp.,
130.

2. Amendments When motion to compel plaintiff to accept
service of an amended answer granted Code Civ. Pro. § 542. A
defendant within twenty days after service of an answer amended
by leave of court has an absolute right, under section 542 of the
Code of Civil Procedure, to serve a second amended answer, and
where it is returned on the ground that its service is unauthorized,
a motion to compel plaintiff to accept it will be granted with costs.
Woolson Spice Co. v. Columbia Trust Co., 353.

See Arbitrations; Contracts; Injunctions; Lis Pendens;
Municipal Court of City of New York; Separation; Specific
Performance; Trespass; Wills.

POWER OF SALE.

See Wills.

PRESUMPTION OF DEATH.
See Husband and Wife.

PRISON LAW.

See Statutes.

PROBATE.

See Wills.

PROHIBITION.

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Writ of When application for an alternative writ granted -
Street railways Receivers Corporations- When public service
commission has not jurisdiction to increase rate of fare on street
surface railroads. An application by the city of New York for an
alternative writ of prohibition directing the public service com-
mission, first district, and the receivers of the Manhattan and Queens
Traction Corporation commanding it and them to desist from any
further proceedings in the matter of the application of said receivers
for permission to increase the rate of fare upon the street surface
railroads owned by said corporation, will be granted in view of the

decision in the Quinby Case (223 N. Y. 244), reaffirmed in later
decisions of the Court of Appeals, holding that the public service
commission, in a case like the present one, has not jurisdiction to
grant permission to increase the rate of fare. People ex rel. City
of New York v. Nixon, 7.

PUBLICATION.

See Title.

PUBLIC SERVICE COMMISSION.

"

Jurisdiction of Who is deemed a
- Street
common carrier”.
railways Franchises When stage line must obtain a certificate
of public convenience and necessity - Transportation Corporations
Law, §§ 25, 26. The effect of the statute (Laws of 1919, chap.
307) amending section 26 of the Transportation Corporations Law,
was to restore to a great extent the jurisdiction of the public serv-
ice commission granted by section 25 thereof as it was enacted in
1913, of which the commission had been deprived by chapter 669
of the Laws of 1915, which had subjected the suburban railways of
the state to much competition resulting in practical bankruptcy. By
section 25 of the Transportation Corporations Law one who operates
a bus line over a route partly in a city is deemed a "common
carrier" within the Public Service Commissions Law, and since the
amendment of 1919 to section 26 of the Transportation Corpora-
tions Law, he must obtain a certificate "for the operation of the
route or vehicles proposed to be operated" and must also under
section 53 of the Public Service Commissions Law obtain a certifi-
cate of public convenience and necessity before exercising a
franchise granted by a municipality. Niagara Gorge R. R. Co. v.
Gaiser, 38.

PUBLIC SERVICE COMMISSIONS LAW.

53. Niagara Gorge R. R. Co. v. Gaiser, 38.

RAILROADS.

See Contracts.

REAL PROPERTY.

Executors and administrators When application for leave to
sell real estate denied - Code Civ. Pro. §§ 2702, 2705. A decree
denying leave to an executor to sell the real estate of his testator
because the application was not made within eighteen months after
the grant of letters testamentary is a bar to an application
subsequently made. The amendment (Laws of 1918, chap. 317) to
section 2705 of the Code of Civil Procedure did not extend indefi-
nitely the time within which leave to sell a testator's real estate
could be obtained, and an application by an executor for such
leave, if not made within eighteen months after the grant of letters
testamentary, must be denied. Section 2705 of the Code of Civil
Procedure, notwithstanding the amendment of 1918, is still limited
and restricted by section 2702 of said Code. Matter of Engel, 514.
See Transfer Tax.

REAL PROPERTY LAW.

§ 63. Matter of Cronk, 516.

110. Street v. Post, 228.

§§ 149, 151, 153. Matter of Enright, 337.
§ 197, 198. Schnibbe v. Schnibbe, 382.
232. Levine v. Rosenstein Co., Inc., 299.

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RECEIVERS.
Permanent - Actions Corporations - Pleading - General Cor-
poration Law, § 239 (1) Membership Corporations Law, § 11.
The appointment of a permanent receiver of a dissolved member-
ship corporation neither vests in him the personal right of its
creditors to enforce the liability of directors under section 11
of the Membership Corporations Law nor does it enable him to
assert or enforce the rights of the corporation under section 239(1)
of the General Corporation Law. An order of the Supreme Court
empowering such a receiver to commence an action to enforce such
rights is no foundation for a title to the cause of action. The com-
plaint in an action brought by such a receiver against the creditors
and former directors of the corporation considered, and a demurrer
thereto sustained on the ground that plaintiff had not the legal
capacity to sue. Fordham v. Poor, 187.

REMAINDERS.

See Wills.

RESIDUARY LEGATEES.
See Wills.

RESIDUARY ESTATES.
See Wills.

SALE OF INFANT'S REAL ESTATE.

When

When national bank may be appointed special guardian
motion to compel purchaser to accept title granted - Code Civ. Pro.
§ 2352. A national bank authorized to act in certain specified trust
capacities is "a suitable person " within the meaning of section
2352 of the Code of Civil Procedure to be appointed as special
guardian in a proceeding for the sale of an infant's real estate.
Where the purchaser at such a sale objects to the title on the
sole ground that a national bank was appointed as special guardian
in the proceeding, a motion to compel him to accept the title will
be granted. Matter of Mollineaux, 75.

SCHOOLS.

See Statutes.

SEPARATION.

The

Proper allegations in supplemental answer-Pleading.
defendant in an action for a separation on the ground of cruel and
inhumar. treatment may be allowed to serve a supplemental answer
alleging acts of adultery committed by plaintiff prior to and since
the commencement of the action. Ames v. Ames, 161.

SERVICE.

See Summons.

SLANDER.

See Libel.

SPECIFIC PERFORMANCE.

1. May be brought by assignee of vendee — Contracts. An action
to compel specific performance of a contract for the sale and pur-
chase of real estate may be brought by the assignee of the vendee.
Epstein v. Gluckin, 184.

2. Contract to convey real estate - Demurrer to complaint over-
ruled. Where the complaint in an action by the assignee of the
vendee to compel specific performance of a contract to convey real
estate alleges that plaintiff "is ready and willing and hereby offers
to pay the residue of the purchase money to the defendant and to
give the purchase money bond, executed by plaintiff's assignor or
by this plaintiff or by both, as the defendant may elect, and the
purchase money mortgage as stipulated in the aforesaid written
contract," a demurrer to the complaint on the ground that the
allegation therein relative to the assignment of the contract in suit
shows that it does not impose any obligations or covenants or agree-
ments on the part of the plaintiff to perform those which his assignor
made to the defendant, must be overruled upon the ground that while
it may be doubted whether plaintiff's offer would be sufficient
foundation for a separate and later action to enforce it, there is
no doubt that it can be enforced in the present action as a basis
and condition for any relief given to the plaintiff. Schuyler v.
Brown Realty Co., 268.

3. When will not be decreed - Contracts- Villages. Specific
performance will not be decreed of a contract made by the board
of trustees of an incorporated village for the purchase of land
outside of the village for the purpose of the establishment of a
public dump. Gibson v. Village of Massena, 505.

See Contracts.

STATUTE OF DESCENT.

See Wills.

STATUTE OF DISTRIBUTION.
See Wills.

STATUTE OF FRAUDS.

Oral agreement to surrender the unexpired term of a lease, not
exceeding one year, valid - City of New York - Real Property
Law, 232, as amended in 1918. Where the interest of a tenant
of leased premises in the city of New York does not exceed a year's
duration his oral agreement to surrender the unexpired term, to take
effect in futuro, is valid under the Statute of Frauds. Section 232
of the Real Property Law, as amended in 1918, is a new Statute
of Frauds upon the subject of the creation of tenancies in the city
of New York and does not apply to the surrender of an existing
lease. Where the term of a lease of premises in the city of New
York does not exceed one year it is no defense to an action upon