4. Construction of Railroad. In view
of the conditions of travel in the
city of New York, the proposed
construction by the city, at its
own expense, of a railroad under
the Rapid Transit Acts, on the
failure of private enterprise and
capital to intervene, is necessary
for the welfare of the people and
required by them, is public in
character, and authorized by con-
stitutional legislation, and, hence,
is for a "city purpose" and
should not be restrained. Sun P.
& P. Assn. v. Mayor, etc., of
N. Y.
5. Trials in Police Department
Rule as to Service of Notice. The
rule of the police department of
the city of New York, that when
charges have been preferred
against a member of the force,
specifications, with a notice of
the time and place of trial, shall
be served upon the party charged,
two days before the trial, having
been prescribed by the board of
police under the authority of a
statute (Consolidation Act, L. 1882,
ch. 410, 250, 272), has the force
of a statute to the extent that the
authority conferred was complied
with, and so long as it continues in
force is as binding upon the mem-
bers of the board as it is upon the
members of the force. People ex
rel. v. Martin.
311
6. Compliance with Rule Essential to
Jurisdiction. Compliance with
the rule of the department pre-
scribing two days' notice of trial
is essential to the jurisdiction of
the police commissioners to try
and remove a member of the force;
and if a trial is had without the
prescribed notice having been
given or waived, the commission-
ers fail to pursue the authority
conferred upon them in the mode
required by law.
Id.
Date of Service of Notice of Trial
Return to Certiorari. Where
the failure to give the two days'
notice of trial prescribed by the
rules of the police department is
the gravamen of the petition for
a writ of certiorari to review the
action of the commissioners in
removing the relator from the
force, and the return states two
dates of service, one, which would
have been in time, being stated
indefinitely, as, "on or about,"
and the other, which was not in
time, being stated definitely in an
admission of service made part of
the return, the date definitely
stated may be deemed controlling.
Waiver of Notice of Trial. Where
a member of the police force,
against whom charges have been
preferred, is put upon trial before
a commissioner without having
received the two days' notice of
trial prescribed by the rules of
the department, and, after the
refusal of a request for adjourn-
ment, is asked whether he is
guilty or not, and is thereupon
sworn as a witness and answers
that he is guilty, such answer is
not to be deemed a waiver of no-
tice of trial, so as to confer juris-
diction upon the commissioners to
remove him, where his additional
statements on the trial, and the
subsequent proceedings had, show
that such answer was not intended,
regarded or accepted as a plea of
guilty.
See CONSTITUTIONAL LAW, 6-8, 10,
14. 17.
TAX, 7-10.
WHARVES, 1-4.
See ATTORNEY AND CLIENT, 3.
MASTER AND SERVANT, 2.
NEGLIGENCE, 6.
RAILROADS, 2.
See NEW YORK (CITY OF), 5-8.
Officer de Facto. There can be no
officer de facto where there is no
office to fill. In re Quinn. 89
See ATTORNEY AND CLIENT, 6, 7.
CONSTITUTIONAL LAW, 6–8.
See MUNICIPAL CORPORATIONS,
1. § 291-Commitment of Children.
Where, on an appeal, under the
provisions of section 749 of the
Code of Criminal Procedure, from
a commitment of children pursu-
ant to the provisions of section
291 of the Penal Code, the affi-
davit upon which the appeal is
allowed does not allege any errors
with reference to a determination
of the facts, the evidence is not
required to be returned, and the
failure of the magistrate to pre-
serve it furnishes no ground for a
reversal of the commitment. Peo-
ple v. Giles.
136
2. § 323-Horse Racing not a Lot-
tery L. 1895, Ch. 570. The
conducting, by a racing associa-
tion organized under chapter 570,
Laws of 1895, of horse races for
premiums or stakes consisting of
à definite sum payable by the as-
sociation out of its general funds,
without regard to the amount of
the entrance fees paid by the com-
petitors, does not constitute a lot-
tery, within the meaning of that
term as defined by the Penal Code.
People ex rel. Lawrence v. Fallon.
1. Allowance for Improvements. A
tenant in common, who is also a
lessee of his cotenant, cannot be
allowed in partition for improve-
ments made upon the property in
the course of his tenancy, which
enhanced its value and were made i
with the knowledge but without
the consent of the cotenant, when¦
the effect of such improvements 3.
was not to protect or preserve the
property, but to aid the tenant in
carrying on a business then prose-
cuted by him upon the premises,
the increased income from which
was not shared with the cotenant.
Cosgriff v. Foss.
2. Improvements - Distinguished
from Repairs-Allowance for. Con-
tribution between cotenants for im-
provements, as distinguished from
repairs, when the property is so
situated that actual partition is
out of the question, is not re- |
quired in this state, even by
courts of equity, except in the
§ 351 Betting on Horse Races -
L. 1895, Ch. 570, § 17- Penalty.
The making or recording by a
person upon a race course author-
ized by, or entitled to the benefits
of, chapter 570, Laws of 1895, of
a bet upon a horse race taking
place thereon, even if it be de-
nominated bookmaking, is sub-
ject to the exclusive penalty of
forfeiture of the amount of the bet,
to be recovered in a civil action,
prescribed by section 17 of the
act, and consequently is excepted
from the provisions of section 351
of the Penal Code, provided such
making or recording are not ac-
complished by any of the acts
has been in form granted and
the ruling excepted to, the plain-
tiff, instead of resting upon the
decision as announced, joins the
defendant in requesting the court
to make findings of fact and con-
clusions of law upon all the issues
in the case, which is done, and a
decision rendered thereon dismiss-
ing the complaint upon the mer-
its, the plaintiff cannot insist that
the decision is in effect a mere
nonsuit, and not a determination
of the action upon the merits, on
the ground that the defendant had
not formally rested his case.
Bliven v. Robinson.
333
See APPEAL, 12.
RAILROADS, 3.
See CONSTITUTIONAL LAW, 24-28.
See CORPORATIONS, 9.
NEGLIGENCE, 3, 8.
See CONSTITUTIONAL LAW, 1-4.
GAMING, 1-3.
LOTTERIES.
1. Release to Elevated Railroad-
Abandonment of Easements. A re-
lease by an abutting owner to an
4. Street Railway Right to Use
Street not Named in Articles of
Association. The use of a city
street, not named in its articles of
association, by a company organ-
ized under the Street Surface
Railroad Act (L. 1884. ch. 252),
merely for hauling cars to and
from a car storehouse, is impliedly,
if not expressly, sanctioned by the
law when a majority of the abut-
ting owners consent and the store-
house is located upon the only
vacant land available, which was
not within the restrictions imposed
by the resolution whereby the city |
Allowance to Life Beneficiary of
Value of Permanent Improvement.
Where testamentary trustees for
a life beneficiary have power,
under the will, to invest the pro-
ceeds of the trust committed to
their charge in building upon the
trust real estate, when it can be
reasonably anticipated that such
investment will be beneficial to
the remaindermen and to the life
beneficiary, the latter is entitled
to be allowed and to charge against
the capital of the trust, on an ac-
counting in equity, the value of
the permanent improvement added
to the trust real estate by replac-
ing, with money furnished by the
life beneficiary and necessary to
preserve the property to the es-
tate, unproductive buildings with
productive buildings, with the ap-
proval of the trustees and under
such circumstances as to render
the construction their act, done in
the exercise of their judgment as
trustees.
Id.
5. Insertion of Value of Trust Prop-
erty in Judgment — Estoppel — Ex-
pense of Repairing Defect in Build-
ing. The insertion in a judgment
construing a will, of permission
to the executors to convey, and to
trustees to receive property at a
value found by the court, does not
constitute an estoppel which will
necessarily impose upon the trust
estate, to the detriment of the in-
come of the life beneficiary, the
amount paid by the executors to
repair a structural defect in a
building, discovered after its con-
veyance to the trustees, and con-
stituting a mutual mistake of fact,
unknown to the parties and to the
court at the rendition of the judg-
Id.
|