Marriage of minors- right of infant husband to his earnings as against
his father.
See HUSBAND AND WIFE, 1, 2.
INJUNCTION.
Dimages-
A counterclaim in an injunction suit cannot be included in the
damages" recoverable by the enjoined party under the bond given pursuant
to the s'atute. The word "damages," in section 611 of the Code of Civil
Procedure, does not include a recovery upon an equitable counterclaim
interposed in an injunction suit in which the defendant is the actor and
occupies the position of plaintiff, but relates to damages which the
enjoined party may be able to show that he has sustained by reason of
the injunction under section 623, which provides for the ascertainment
of such damages by the court or by a referee or by a writ of inquiry.
Brace Co. v. Kraft.
See Webster v. Columbian Nat. Life Ins. Co. (Mem ), 523.
INSURANCE.
1. Policy must be construed according to plain and ordinary meaning of
its terms. When a person takes out a policy of accident insurance he
cannot reasonably expect indemnity outside the limitation of his contract;
and when that contract expressly specifies the kind of accident which it
covers, the rights of the insured and the liability of the insurer are meas-
ured by the specification. Where there is no ambiguity there is no occa-
sion for the exercise of choice of interpretation; and the insurance policy
is to be construed according to the plain and ordinary meaning of the
terms which the parties have employed. Houlihan v. Preferred Accident
Ins. Co.
2. Insurance against injury “if caused by burning of building." A pol-
icy of insurance was issued by defendant to plaintiff in which plain-
tiff's sister was named as beneficiary. It insured the beneficiary against
the effect of external, violent and accidental injury "if caused by the
burning of a building while the said person is therein."
The person
named as beneficiary was burned to death while alone in her room; the
cause or origin of the fire is unknown. Her outcries gave the alarm to
the other occupants of the house, and when they reached her the cloth-
ing which she wore was almost burned off her and the bed clothes and
bedding on her bed were in flames. A quantity of her clothing which
hung on the door was also consumed, but the fire was speedily extin-
guished. The door is described as having been scorched but no portion
of the building was burned. Held, that the burning of a building is not
the same thing as the burning of articles in a building, and that, under
the language of the policy, plaintiff is not entitled to recover.
Id.
3. Mutual benefit associations — Amendments to constitution or by-laws,
which nullify or cut down benefits to which a beneficiary has become entitled
under his contract, are void and of no effect even where the right to amend
has been expressly reserved. The defendant, a mutual fraternal benefit
association, issued to plaintiff a certificate of insurance providing that
upon his death an assessment upon the membership should be paid to
the person therein named, upon the proviso that plaintiff shall have "in
every particular complied with the laws of the order in force or that may
hereafter be adopted." Plaintiff's application provided among other
things that the laws of the order " now in force or that may hereafter be
adopted shall form the basis of this contract:" that neglect to pay any
assessment or dues fixed by said laws should vitiate the certificate; that
the laws of the order "now in force or that may hereafter be adopted are
made part of the contract," and that he agrees to conform to and be gov-
erned thereby. The contract between the parties consisted of the appli-
cation, certificate and the by-laws in force when the certificate was issued.
Seven years after the contract was made, the by-laws were changed by
the defendant, without the consent of the plaintiff, so as (1) to increase the
monthly assessments and to require a per capita tax together with a
fraternal tax, the provision for additional assessments being still con-
tinued in force; (2) to abolish the right of a member, upon reaching the
age of seventy years, to relief from the payment of any further dues or
assessments; (3) to abolish the right of a member on reaching that age
to receive annually one-tenth of the sum named in his certificate; and
(4) to so modify the disability clause as to entitle a member to the bene-
fit of the annual payment of one-tenth, only in case he should con-
tinue to pay precisely the same as if he had not become disabled, and
even to continue to pay after he had received the full amount called for
by his certificate. Plaintiff, having declined to pay the increased rates
under such amendments, was suspended by defendant, which suspen-
sion involved the forfeiture of his right to participate in the benefit
fund, and this action is brought by him for reinstatement. Held, that
benefits cannot be reduced, or new conditions forfeiting benefits added,
by an amendment to the by-laws even when the general right to amend is
expressly reserved. Hence, the amendments which assume to cut down
the benefits to which the plaintiff became entitled by his contract are void
and of no effect. Since the plaintiff entered into the contract on the faith
of the promise by the association that he should "pay the same rate
hereafter so long as he remains in good standing in the order," which he
had the right to assume to be a covenant not to increase the rate, his
right to pay at the old rate was a vested right, immune from change by
amendment in the absence of a specific reservation to amend in that par-
ticular. The increase in the rate of assessment falls under the same con-
demnation of the law as a reduction in the amount of benefits. Wright
v. Knights of Maccabees.
4. Mutual benefit associations — Association cannot change constitutional
provision that beneficiary shall be assessed according to age when admitted
without his consent. The defendant, a mutual benefit life insurance
association, issued to plaintiff a certificate of membership therein, upon
the condition that he should "in every particular while a member of said
association comply with all the laws, rules and requirements thereof."
Plaintiff also received a printed book containing the constitution and by-
laws of defendant. One of the articles of the constitution provided in
substance that all members should be assessed according to their age when
admitted. The question presented is whether, by subsequent amend-
ment of the constitution or any of the rules or regulations made after the
issue of the certificate, defendant may increase the rate of a single assess-
ment against plaintiff. Held, that the covenant on the part of plaintiff
that he would comply with all the laws, rules and requirements of the
association refers only to such as existed at the time he entered into his
contract, and that any changes or alterations thereafter made therein, or
additions thereto, seeking to modify or alter said contract do not bind
him. Dowdall v. Catholic M. B. Assn.
405
See Donley v. Glens Falls Ins. Co. (Mem.), 501.
INTEREST.
On postponed legacy.
See DECEDENT'S ESTATE, 2.
Payment of interest on land taken by city prior to completion of
condemnation proceedings.
See NEW YORK (CITY OF), 1.
JUDGMENT.
Effect of interlocutory judgment in action for divorce- reason for
statutory postponement of entry of final judgment - when final judgment
cannot be entered after death of party.
When juror not disqualified by opinion as to guilt or innocence of one
accused of crime.
See CRIMES, 5.
JURISDICTION.
Appointment of trustee.
See DECEDENT'S ESTATE, 4.
Of action to determine title to lands on Indian reservation.
See INDIANS, 4.
LABOR LAW.
Construction of provision requiring that "machinery of every descrip-
tion" in factories should be guarded.
See MASTER AND SERVANT, 2.
LANDLORD AND TENANT.
Tenancy from year to year — Each year constitutes a new term· - Claim
for unpaid rent for each year -- Separate cause of action. A tenancy from
year to year, created by the tenant's holding over after the expiration of
his original term, is a new term for each year of such holding over, upon
the terms of the original lease so far as they are applicable to the new
relation. Hence, a claim for unpaid rent for each year of such a holding
over creates a separate and distinct cause of action. Such separate causes
of action may be joined in one suit, or each may be made the subject of
an independent action. Kennedy v. City of New York.
19
See Brooklyn Heights R. R. Co. v. B. C. R. R. Co. (Mem.), 502.
See People v. Hosier (Mem.), 506; People v. Barry (Mem.), 507.
Payment of intention to postpone must be found in will itself-
interest on postponed legacy.
See DECEDENT'S ESTATE, 1.
See Perley v. Morning Telegraph Co. (Mem.), 515.
See Matter of East One Hundred & Seventy-ninth Street (Mem.), 528;
Romeo v. City of Yonkers (Mem.), 546; Cantor v. Robinson (Mem.),
546; Hamilton v. Fleckenstein (Mem.), 553.
Doctrine of subrogation applicable to lien for taxes or assessments
when bank entitled to be subrogated to lien of city for assessment paid by
forged check- when not entitled to be subrogated to lien for taxes paid
by forged check.
Mutual benefit associations- amendments to constitution or by-laws,
which nullify or cut down benefits to which a beneficiary has become
entitled under his contract, are void and of no effect even where the right
to amend has been expressly reserved.
Mutual benefit association cannot change constitutional provision that
beneficiary shall be assessed according to age when admitted, without his
consent.
Statute of Limitations must give reasonable time before bar will apply.
See REAL PROPERTY, 6, 7.
Certiorari to review assessment of capital stock of banks - when limi-
tation prescribed by Tax Law set in motion.
Applicant for license must show that there is no church within 200
feet of his premises.
Truth of certificate of police surgeon as to disability of member of New
York police force may be tried by mandamus.
1. Contract of employment - Payment of wages. Where a judgment
debtor is employed as a salesman under a contract by which he is to
receive certain commissions on his sales, is paid a fixed sum each month
in advance of the rendition of his services, and at the end of the fiscal
year, if it is found that the sales effected by him entitle him to commissions
in excess of the amount paid him, he receives the additional commissions,
and if he has been overpaid the overpayment is charged against his future
commissions, the arrangement amounts to a contract for the payment of
wages in advance, and his wages are due and owing to him when he
receives them. Laird v. Carton.
2. Labor Law - Construction of provision requiring that “machinery of
every description," in factories, should be guarded. The purpose of the
Labor Law, in directing that certain appliances therein named and
"machinery of every description," in factories, should be guarded, is to
protect employees from unnecessary and hidden dangers. Where, how-
ever, danger to employees does not exist or is not to be reasonably
expected it is not necessary, under the statute, for employers to guard
even the machines or appliances enumerated therein. Wynkoop v. Ludlo
Valve Mfg. Co.
3. Negligence Accident from a necessary and obvious danger. A rail, or
track, upon which run the wheels of a truck carrying a traveling crane,
was elevated two and a half to three feet above the floor of a gallery, run-
ning around a factory, upon which gallery lathes and other machines were
situated, and so placed that employees were not required to work upon it
or about it. Plaintiff, while looking for a tool, with which to carry on
his work, fell and in falling put his hand upon the track just as the
wheel of the crane truck was passing, so that his fingers were cut off
by the wheel. The rail was not guarded and there is no evidence to
show that it was practical to guard it or that such a track is now or
ever has been guarded in any similar or other factory. There was no
defect in the floor of the room to precipitate an accident. Held, that the
remote possibility of one falling and, in falling, of putting his hand
upon the rail in front of the wheel of the approaching truck was one
of those necessary and obvious dangers not commonly guarded against,
and which should not be held to be within a general statute for the
protection of employees operating machinery."
Id.
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Construction and application of statute prohibiting the pumping of
subterranean mineral waters.
See WATERS AND WATERCOURSES, 1-7.
Marriage of right of infant husband to his earnings as against his
father.
See HUSBAND AND WIFE, 1, 2.
Claims for unpaid rent for each year separate cause of action.
See Heal v. Richmond Co. Sav. Bank (Mem.), 549.
MOTIVE.
When immaterial.
See CORPORATIONS, 3.
Insufficient to warrant conviction for murder.
MUNICIPAL CORPORATIONS.
Limitation of indebtedness of New York city under State Constitution.
See NEW YORK (CITY OF), 2-13.
Removal of borough president by governor on charges - constitution-
ality of statutory provisions relating thereto - filling vacancy occasioned
by removal for cause — construction of statutes invalid reappointment.
See NEW YORK (CITY OF), 14–19.
Effect of ordinance permitting street railroad company to construct a
railroad and tunnel in city streets forfeiture of franchise for failure to
complete road-legal status of franchise determinable only in litigation
between people and claimants thereto.
When public service commission without authority to refuse permis-
sion for construction of railroad in city street.
When public street, actually opened and in use, deemed to be closed
under ordinance opening new street in place thereof.
Trial for - motive insufficient to warrant conviction - insufficiency of
evidence.
Trial for sufficiency of evidence when good purpose no excuse for
crime when juror not disqualified by opinion as to guilt or innocence
of defendant when error in reception of evidence immaterial
sonable delay in argument of appeal.
sufficiency of evidence - when evidence of another crime
committed by defendant at same time properly admitted.
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