himself of title, the attempted trust was invalid under the law of New York, and (4) that in any event the one-fourth contingent remainder to niece and nephews or their issue, with gift over to the colleges, was also invalid under the laws of New York. Held, that because of the reserved power of revocation the trust deed did not suspend the absolute ownership of the property, measured by the lives of the settlor and the nephew and his wife. The gifts over in favor of the colleges of one-half and one-quarter respec- tively of the trust property were contingent and not vested, but both were valid, and will vest after the expiration of the only two measuring lives. The remaining one-quarter of the trust fund upon the death of the life beneficiaries was also contingent, but after the termination of the two measuring lives will vest absolutely in one or more of the persons mentioned, if living, or in their sur- viving issue, and failing any such, in the two colleges, and the only uncertainty is as to the persons in whom said quarter of the trust fund will vest after the termination of the limiting life estate. Where duly taken depositions of the executor and of another wit- ness also interested in the event of the action within the meaning of section 347 of the Civil Practice Act were offered in evidence in support of a claim that the settlor of the trust had changed his domicile from the United States to Mexico, an objection to their reception as incompetent, on the ground that it was sought to prove a Mexican domicile by the settlor's own statement to said witnesses, will be sustained. The depositions having been excluded there was not sufficient other evidence to sustain the claim of a change of domicile. Equitable Trust Co. v. Pratt, 708.
See Accounting; Transfer Tax; Wills.
USE AND OCCUPATION.
See Landlord and Tenant.
VENDOR AND PURCHASER.
1. Title -Specific performance
Maintaining garage in city of New York in which vehicles are stored for hire, in violation of building zone resolution, held not to constitute an incumbrance · Notice from fire department - Deduction from purchase price refused Complaint dismissed. Where a contract for the sale of premises subject to building restrictions and regulations, etc., provided that all notices of violations of law or municipal ordi- nances noted in or issued by the fire department of the city of New York against or affecting the premises at the date of the con- tract, shall be complied with by the seller, and the premises con- veyed free of the same, an order of the fire department, since complied with, served upon the seller to discontinue the mainte- nance of a garage in which were kept motor vehicles which are sub- ject to charges for storage in violation of a duly adopted zoning resolution, which violation had its inception before and had con- tinued since the date of contract of sale, creates no incumbrance upon the title, the situation being covered by the express terms of the contract but even if this were not so, the zoning resolution did not constitute such an incumbrance. Where in an action in equity to procure a judgment for an abatement upon the purchase price of the premises by reason of the alleged defect in title, or in the event that it be adjudged that defendant cannot convey a
VENDOR AND PURCHASER Continued. good title, that plaintiff have judgment for the amount of his deposit on the purchase price with interest, the answer, which was practically a general denial, alleges that the only reason why plain- tiff refused to accept the deed tendered by defendant and offered to pay the balance of the purchase price, was said order of the fire department and it is apparent that in any aspect than can be taken of the case, plaintiff is not entitled to an abtement from the pur- chase price on account of loss of income be expected to get from the premises and it is clear that plaintiff and not defendant had failed to comply with the terms of the contract, he cannot recover back the money paid thereon, and defendant is entitled to judg- ment dismissing the complaint upon the merits with costs. Moss v. Rubenstein, 385.
2. Right of way Real property Contracts - Equity - Reformation of instrument· Agreement subject to all leases" held to include right of way for pipe line for oil or gas - Vendee's sale of personal property waived alleged defect in title to realty — Estoppel-Specific performance - Equity will reform contract though not requested in pleading. Where from surrounding facts and circumstances the intent of the parties to a written contract, in their mistaken use of a particular word is plain, parol evidence is admissible to show its intended meaning and its precise and technical meaning cannot be insisted upon. Where a written con- tract fails to express the real agreement of the parties, the court in the exercise of its equity powers, upon a proper case made, is in duty bound to reform the contract even though in an action thereon the defendant by his answer has not asked for a reformation. A contract for the purchase of a farm lying in part on both sides of a highway, and also certain personal property, in express terms provided that, "The above described property is being sold sub- ject to all leases against the property with the Iroquois Natural Gas Co." After the intending purchaser had entered into pos- session there was delay in closing the deal but finally the title was rejected on the alleged ground that a certain right-of-way owned by a company, to lay, maintain and operate a pipe line for the transportation of oil or gas over the farm, rendered the title bad. In an action to recover the amount paid on the contract when it was made, and also to recover certain amounts claimed to have been expended on the property in excess of those received for pro- duce sold, the answer put in issue certain of the allegations of the complaint and prayed for a specific performance of the contract. It was established on the trial that plaintiff knew of the pipe line, made no objection to it and, in connection with the statement that he had paid too much for the farm, said to defendant's attorney, referring to the well and line, which gave his house a full supply of gas, that those were the only things that made him buy the farm. Held, that the word "leases" in the contract which was drawn by one not a lawyer, was intended to describe the very right-of-way to which objection was made; otherwise the word which in itself was a misnomer, would be meaningless. The action of plaintiff, who still is in possession of the farm, in selling a considerable portion of the personal property on the place, which he had no right to do
until payment of the purchase price according to the terms of the contract, was a waiver of the alleged defect in the title, and he car- not be heard to insist upon the objection now. Judgment for the reformation of the contract and for the specific performance of the same as reformed. Schultz v. Busendorf, 405.
Change of place of trial-Land under water. Boundary line between New York and Kings counties is actual line of low water on Brooklyn side - Where property situate in two counties action may be brought in either county - Civ. Pr. Act, § 183.- The boundary between the counties of New York and Kings is the actual line of low water on the Brooklyn side whether corresponding with the original low water line of the East river shore or varied by permanent encroachment of docks, piers and wharves. A com- plaint after describing water front property located at and in the vicinity of the foot of Hamilton avenue, borough of Brooklyn, owned by plaintiffs and defendant, respectively, alleged that defend- ant maintains a ferry house and appurtenances at the foot of the avenue, and that the rack on the southerly side of its ferry slip was within ten feet of plaintiffs' pier, that defendant's structures deprived plaintiffs of the use of their bulkhead and along the northerly side of their pier and that said structures constitute a public nuisance which particularly injures and violates plaintiffs' property rights. Held, that under the decisions establishing the boundary line between the counties of New York and Kings, plain- tiffs' bulkhead and pier are in Kings county and the land under water in the southerly view of defendant's ferry slip and on and over which its rack is maintained in New York county. Both prop- erties together are to be regarded as the "subject of the action" within the meaning of section 183 of the Civil Practice Act and the venue of the action is properly laid in Kings county. A motion by defendant for an order changing the venue to New York county, based upon the provisions of said section 183, denied. Fairchild v. Union Ferry Co., 470.
Sale of bottled milk - Implied warranty that milk is fit for human consumption ·Distributor held liable for illness of child caused by worms in milk.— Upon a sale of milk to be used as food there is an implied warranty of its fitness for human consumption even though the seller is merely a distributor of the product. The mother of plaintiff having bought of defendant a standard quart bottle of "Certified Milk" which was produced at the Wilmarth Farms, Kingsley, Penn., and sealed in conformity with the stand- ards of the Kings County Medical Society, added boiled water to a portion of the milk for the use of plaintiff who was then eighteen months old and who toward evening on the same day became ill. An examination by the child's father showed small worms attached to the inside of the glass bottle and the remainder of the milk was kept and delivered by the guardians of the child to their family physician. In an action for negligence the complaint alleged inter
alia that the illness of the child was due to the carelessness, reck- lessness and negligence of the defendant in the preparation of the milk and without contributory negligence on the part of the infant plaintiff or that of his guardian ad litem, and further, that the mlik was unfit for human consumption and contained worms which caused the infant plaintiff to become ill. The family physician's diagnosis was gastrointeritis or inflamed condition of the stomach and intestines, and he testified that the inner surface of the bottle was saturated with little organisms or worms and that the nearest thing he could compare them with was "dragon fly larvae," and he also testified that the presence of these organisms in the milk was a competent producing cause of the child's illness. The physi- cian who was authorized by the Kings County Medical Society to pass upon the milk produced at the Wilmarth Farms testified that, on one occasion, four years prior to the one in question, worms were present in the milk and indicated that these worms came from a reservoir used for the storage of water; that the worms had gotten into the reservoir from the surface, and that the water was used to wash the rims of the bottles and in that way the worms got into the bottle. It also appeared that the bottles and the caps which sealed them were furnished by the defendant, who was merely the distributor of the milk, but that the actual bottling and sealing thereof was done at the Wilmarth Farms, and that no employees of the defendant were employed there nor was any employee of defendant engaged in the bottling process. The trial justice after granting plaintiff's motion to amend the complaint to conform to the proof so as to claim to recover upon the theory of an implied warranty in the sale of the milk, and in the mistaken belief that such was the only cause of action, dismissed the complaint upon the merits. Upon reversing the judgment entered in favor of defendant and ordering a new trial, held, that the mere purchase of the milk made known to defendant that it was required for food; that as any one reading the printed matter on the label, "Sheffield Farms Co., Inc., Bottled at Wilmarth Farms," might well assume that the milk was the product of defendant's farm, the plaintiff had a right to assume that defendant had the opportunity to examine the milk. Lieberman v. Sheffield Farms, 531.
WATERS AND WATER COURSES.
Lands bounded on rivers and streams above tidewater Rules of the English common law do not apply to lands bordering on the Hudson river and the Mohawk river - The title to the bed of the Hudson river and the bed of the Mohawk river is in the state of New York-Franchises Compensation for appropriation of lands in accordance with the provisions of the Barge Canal Act - Title to the bed of the Hudson river in the state of New York not divested by chapter 164 of the Laws of 1901.- The state of New York, pursuant to chapter 147 of the Laws of 1903, appropriated for the Champlain canal lands and flowage rights of claimant extend- ing on both sides of the Hudson river above tidewater for a dis-
WATERS AND WATERCOURSES - Continued.
tance of about two and one-half miles. The lands form part of original grants under English Colonial Patents. By chapter 164 of the Laws of 1901 claimant was "authorized to construct a dam across the Hudson river on the lands now owned by it or which it shall hereafter purchase or acquire to forever maintain said dam and to flood back up said river so far as it owns or shall hereafter purchase or acquire the adjacent uplands
for the purpose of maintaining the pond formed by such dam; and any interests of the state in lands under the waters of said river covered by said dam or which may be flooded by the erection thereof or under any works which said company shall construct on or adjacent to said dam is hereby granted to said company, its successors and assigns." Claimant did not construct its dam and never obtained the consent of Congress to do so in accordance with the River and Harbor Act of March 3, 1899, but, relying upon said act of the legislature, it acquired a considerable part of its frontage on said river and made expenditures for the develop- ment of its property in reliance upon the provisions of said act. Held, that the rule of the English common law that grants which are bounded on rivers and streams above tidewater are presumed to extend to the middle of the stream has never been applied to colonial grants or state grants of lands bordering on the Hudson river and the Mohawk river, these rivers being an exception to the general rule because of their size, location and commercial import- ance, and the public use made of them from the earliest days as means of transportation and communication; that at the time of the enactment of chapter 164 of the Laws of 1901 the title to the bed of the river was in the state of New York and that the state's ownership was not divested and vested in claimant by the mere passage of said act. It was contemplated by said act that a dam should be erected and certain works constructed, in which event the title of the state to the lands under the waters of the river covered by said dam or flooded by its erection should pass to claimant. Said act, however, did grant to claimant a franchise which, having been accepted and acted upon, cannot be repealed, revoked_or destroyed by the state appropriating it without compensation. The state having appropriated claimant's land in accordance with the provisions of the Barge Canal Act, claimant is entitled to com- pensation for its property taken for the public use, and for a judg- ment against the state in the amount of $250,000, with interest from June 30, 1913. Waterford El. L., H. & P. Co. v. State of N. Y., 480.
See Vendor and Purchaser.
WHARFAGE.
See Ships and Shipping.
1. When general legacies will not be charged against real estate -Relationship of parent and child as to residuary devisee outweighs any intent which might be inferred by reason of a power of sale. -An intention to charge real estate with the payment of legacies
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