Volume 1 — New York Appellate Division Reports

<p>Appeal by the defendant, Benjamin H. Newman, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 9th day of March, 1895, upon the verdict of a jury rendered by direction of the court after a trial at the Kings County Circuit.</p>

<p>Brooklyn — abolition of the office of chief engineer by the commissioners of charities — authorised by section 4, chapter 384 of 1880—such power is not taken away by chapter 139 of 1893.</p> <p>In proceedings taken by a writ of certiorari to review the acts of the respondent in abolishing the office of chief engineer of the board of commissioners of charities and corrections of the county of Kings, and in removing the relator from the office, although no charges have been preferred against him nor any trial had, it appeared that the respondent, the hoard of commissioners, derived its authority to make the appointment in question from section 4 of chapter 284 of the Laws of 1880, which placed the creation and abolition of the office wholly in the discretion of the respondent; that in 1893 the Legislature passed a law applicable to Kings county and which provided, among other things, that the chief engineer should hold office during good behavior and should not be removed except for cause, after the preferring of charges, upon notice, and a trial thereof; that in September, 1895, the respondent, as alleged in the return, abolished the office of chief engineer for the reason that the care of the insane in the county was to be assumed by the State, and that the services of a chief engineer would no longer be necessary.</p> <p>Held, that as the statute of 1893 did not create a public office, nor did it in terms create the position of chief engineer, the respondent had a right to abolish the office by virtue of the provisions of the act of 1880 ;</p> <p>That the relator was concluded by the return as to the question of the good faith of the respondent in abolishing the office;</p> <p>That the office of a writ of certiorari was to correct errors of a j udicial character made by inferior courts and by special tribunals, exercising judicial powers, and that the writ would not lie to review acts which rested wholly in discretion as the abolition of the office in question did.</p>

appeal by the plaintiff, Truman A. Black, from an order of the County Court of Westchester county, entered in the office of the clerk of the county of Westchester on the 18th day of November, 1895, denying the plaintiff’s motion to dismiss the appeal to the County Court from the judgment entered in the Justice’s Court, and granting the defendant’s motion for leave to correct his omission to pay the costs included in the judgment, and ordering that by the tender and payment…

Appeal by the plaintiff, John Petterson, from an order of the 'Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 9th day of January, 1896, adjudging that Gerard B. Van Wart is entitled to the office of justice of the peace for the second judicial district of the city of Brooklyn.

Appeal by the defendant, William W. Goodrich, as receiver of The Union Warehouse Company, from a judgment of the Supreme ■Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 20th day of April, 1895, upon the verdict of a jury rendered by direction of the court after a trial at the Kings County Circuit, and also from an order entered in said clerk’s •office on the 6th day of June, 1895, denying the defendant’s motion for a new…

Appeal by the plaintiff, Lillian Cauchois, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 30tli day of March, 1895, upon the decision of the court rendered after a trial at the Westchester Special Term dismissing the complaint upon the merits.

Appeal by the petitioner, Charlotte C. Seaman, from an order of the Supreme Court, made at the Dutchess Special Term and entered in the office of the clerk of the county of Dutchess on the 21st day of September, 1895, denying her application for a writ of certiorari.

Appeal by tlie plaintiff, Thomas Ennis, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 26th day of July, 1895, denying the plaintiff’s motion to be released from the purchase by him of property sold in this action. The objections made by the purchaser to the title were: First.

<p>Appeal by the defendant, William J. Northridge, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 31st day of January, 1895, upon the verdict of a jury rendered by direction of the court after a trial at the Kings County Circuit.</p>

<p> Contempt—Surrogate’s Court—decree directing an executor to pay money to a person-entitled thereto-—that the exeautor'has no funds is no defense thereto—right of an assignee to enforce the decree. </p> <p>The decree of a surrogate, directing an executor to pay money to a person entitled to it from the estate of his testator, is conclusive evidence that the executor has sufficient assets in his hands to satisfy the sum directed to he paid, and the executor cannot, upon an appeal, he heard to say that he has not the requisite amount in his hands.</p> <p>An executor cannot urge, upon an appeal, that an assignee is not entitled to enforce a decree of a surrogate rendered in favor of his assignor against the executor.</p>

Appeal by the defendant, John Ennis, from an order of the 'Supreme Court, made at the Kings County Special Term and •entered in the office of the clerk of the county of Kings on the 22d day of April, 1895, denying the defendant’s motion to reopen or modify a judgment of the Supreme Court in favor of the plaintiff, entered in said cleric’s office on the 27tli day of February, 1895, upon the decision of the court rendered after a trial at the Kings County Special Term, upon…

Appeal by Rebecca Feldman, the purchaser at the foreclosure sale in the action, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 6th day of September, 1895, directing her to complete her purchase and pay the balance of the purchase money and the costs of the motion to the sheriff of Kings county, within ten days from the service upon her attorney of said order.

Appeal by the defendant, Robert J. Dean, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the loth day of May, 1895, ordering a reference in the action.

Motion by the respondent, Elbert S. Jemison, to dismiss an appeal pending before the Appellate Division of the Supreme Court for the second judicial department.

<p>Appeal by William H. Metzger, general guardian, etc., of Peter Metzger, from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 7tli day of August, 1894, settling the accounts of the executors of the last will and testament of Henry Schneider, a deceased general, guardian of the person and estate of Peter Metzger, an infant, and a deceased executor and trustee under the last will and testament of Peter Schneider, a former general guardian of said infant.</p>

Appeal by the defendant, Lewis M. Hornthal, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew Y orle on the 13th day of May, 1895, denying the motion of the said defendant for a new trial upon the ground of newly-discovered evidence.

Appeal by the defendant, The Second Avenue Railroad Company, from a judgment of the Court of Common Pleas for the city and county of New -York in favor of the plaintiff, entered in the office of the clerk of said court on the 10th day of April, 1895, upon the verdict of a jury, and also from an order dated the 6th day of Hay, 1895, and entered in the office of the clerk of said court denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, The Metropolitan Elevated Railway Company and another, from a judgment of the Superior Court of the city of New York in favor of the plaintiff, entered in the office of the clerk of said court on the 7th day of May, 1895, upon the decision of the court rendered after a trial at an equity term of said court.

Appeal by the defendant, Henrietta J. Conner, from an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 16th day of August, 1895, upon the report of a referee, in so far as said judgment fails to order, adjudge and decree that said defendant, Henrietta J. Conner, being the widow of James M. Conner, deceased, is entitled to dower in the premises mentioned and described in the ninth paragraph of said judgment, and…

Appeal by the plaintiff, Johanna Kuechenmeister, from a judgment of the Court of Common Pleas for the city and county of New York in favor of the defendant, Vernon II.

Appeal by the plaintiff, Maggie Lewis, from a judgment of the Superior Court of the city of New York in favor of the defendant, entered in the office of the clerk of said court on the 4th day of April, 1895, upon the verdict of a jury, and also from the order entered in the office of the clerk of said court on the 15th day of April, 1895, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Carrier—liability of, under a bill of lading, for damage to goods by moisture — foreign bill of lading which is valid where made and in New York, and invalid in an intermediate State.</p> <p>In an action brought to recover damages for injuries to a quantity of goat skins shipped from Havre, France, and consigned to the plaintiff in New York, it appeared that shipment was made under a bill of lading, executed in France, bearing the heading, “Through from Havre to New York;” that, under the terms of the bill of lading, the skins were to be forwarded by the steamer Wolf to London and were to be there transshipped upon the steamer Canada for New York; that the defendant was not to be liable for damages from sweating, rain, spray or inherent deterioration, nor under the bill of lading, where the damage was done while the skins were not actually in the possession of the defendant or shipped on board its steamer. It appeared that the skins wrere transported by the steamer Wolf from Havre to Southampton, thence by railroad to London and thence by the steamer Canada to New York; that neither the steamer Wolf nor the railroad between Southampton and London were owned or operated by the defendant; that, when the skins reached the plaintiff in New York, they had been damaged by moisture.</p> <p>There was evidence tending to show that the skins were injured upon their passage from Havre to London.</p> <p>Held, that, under the terms of the bill of lading, such injuries were suffered while the skins were not actually in the possession of the defendant nor shipped upon its steamer, and that, therefore, the defendant was not liable;</p> <p>That, as the contract was made in France, was to be performed mainly outside of England, and was valid in the State of New York, the plaintiff could not be heard to say that certain provisions of the bill of lading were illegal under the statutes of England, and that, consequently, the contract ought not to be upheld.</p>

Appeal by the plaintiff, ITyman Bernstein, from a judgment of the Court of Common Pleas for the city and county of New York, entered in the office of the clerk of said court on the 22d day of March, 1894, upon the verdict of a jury, and also from an order entered in the office of the clerk of said court on the 26th day of March, 1894, denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the claimant, Philip E. Gallagher, from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 12th day of June, 1895, upon the report of a referee dismissing his claim; also from an order entered in said clerk’s office on the 24tlx day of June, 1895, denying the claimant’s motion to set aside the judgment. The reference was of a disputed claim against an estate.

<p>New York city — discharge of the superintendent of street improvements in anticipation of a consolidation of that with another bureau, improper.</p> <p>The superintendent of street improvements in the city of New York is the head of a bureau, within the meaning of section 48 of the Consolidation Act, and is protected by the terms of that act from being arbitrarily discharged from his position, in a case where no charges have been made against him nor any ground indicated to him as that upon which he is to be discharged.</p> <p>Semble, that it is permissible, under the Consolidation Act, for the commissioner of public works to abolish the distinctive office of superintendent of street improvements and to consolidate it with the bureau of the water purveyor.</p> <p>The commissioner of public works has, however, no right to discharge the superintendent of street improvement in mere anticipation of such a consolidation, nor where the consolidation was not legally authorized until a month after the time .when the superintendent of street improvements was notified that his services must cease.</p> <p>In such a case the court will not, upon the hearing on the return to a writ of certiorari, modify the determination of the commissioner of public works so as to make it binding upon the superintendent of street improvements from the date when the consolidation of the two bureaus became operative.</p>

<p> Account stated, “subject to an attachment ” implies a promise to pay—a joint debt cannot at law be set off against a sepa/rate debt, nor vice versa—when allowed in equity. </p> <p>An action was brought upon an account, which had been stated between the defendants and B. L. Duke, the assignor of the plaintiff, which showed a balance of @7,460 due to Duke September 28, 1891. At the bottom of the account stated was written the following words: “ The above account is subject to an attachment of @7,106.25 in the suit of E. D. Butler v. R. J. Bass and B. L. Duke.” The defendants claimed that Duke had had an associate in business by the name of Bass (which Duke denied), and as an offset to the account stated, the defendants attempted to show that a firm known as H. J. Bass & Co., which -was, as they alleged, in fact composed of Duke and the abovedescribea Bass, was indebted to them upon an account stated in the sum of @7,106.25.</p> <p>Held, that the memorandum at the foot of the account was merely a notification that immediate payment to Duke personally was prevented because the debt had been arrested in the hands of the defendants, by virtue of an attachment issued at the instance of Butler, a third party;</p> <p>That the promise implied from the account stated still remained, and that when the attachment which had been issued was dismissed the defendants were bound to pay the balance due to Duke or to the plaintiff, his assignor;</p> <p>That the counterclaim could not be sustained, as in an action at law a joint debt cannot be set off against a separate debt nor can a separate debt be set off against a joint debt.</p> <p>Senible, that this can only be done in equity where it is necessary to save the claim of a party, and that then the facts must be alleged upon which the party seeking to enforce the debt relies to justify his demand for equitable relief.</p>

Appeal by the defendant, the Safety Buggy Company, from -an order of the Supreme Court, made at the Rew York Special Term and entered in the office of the clerk of the county of Rew York on the 2d day of December, 1895, denying the defendant’s motion for a bill of particulars.

Appeal by the plaintiffs, Alfred IT. Smith and others, from an interlocutory judgment of the Supreme Court in favor of the defendants, John Munroe and others, entered in the office of the clerk of the county of New York on the 11th day of February, 1895, upon the decision of the court rendered after a trial at the New York Special Term sustaining the demurrer interposed by the ■said defendants to the complaint, and also from the decision of the court entered in said clerk’s…

Appeal by the defendant, John E. O’Brien, from a judgment of the Court of Common Pleas for the city and county of blew York, entered in the office of the clerk of said court on the 19th day of June, 1895, upon the report of the referee.

<p>Mutual fire insurance company — what proof required before a receiver will be appointed—power and duty of the Attorney-General — he may act within the thirty days — restoring impaired capital — evidence of the cash required before the company transacts business—effect of past irregularities where repa/raiion is offered.</p> <p>A clear case of a violation of law, actual insolvency, and insufficiency of assets, not justifying the continuation of its business, or acts showing that the affairs of the corporation are being carried on fraudulently or unlawfully, must be presented before the court will appoint a receiver of a mutual insurance, company.</p> <p>The provisions of section 43 of chapter 690 of the Laws of 1892 do not operate as a limitation upon those provisions of the Code of Civil Procedure defining the cases in which the Attorney-General may institute an action, of this character. Cases may arise where the delay of thirty days contemplated hy section 43 might work irreparable injury and where immediate action is called for.</p> <p>In a doubtful case, however, the ability and offer of the company to restore its impaired capital by supplying funds as directed by the insurance department are circumstances which the court should consider where application is made to it upon the part of the Attorney-General to appoint a receiver of a mutual insurance corporation.</p> <p>It is erroneous for the ofiicia1 examiners of the insurance department, when determining the solvency of such a corporation, to omit to credit the corporation with capital stock notes, executed in the form and certified as required by the statute, when such notes are in the possession of the company, unincumbered, at the time when the examination is made.</p> <p>A company which had, when it begun business, §40,000 in cash in the bank, the proceeds of certain sight drafts deposited by it with the bank, being twenty per cent of the §200,000 worth of premiums referred to in section 111 of chapter 690 of the Laws of 1892, and made by statute a preliminary requirement to the transaction of any business, has not in any manner violated said section 111.</p> <p>Upon an application for a receiver of such a corporation the court will not be induced to grant the application by reason of improprieties and irregularities of its officers committed in the past where these improper acts have been repm diated by the directors and reparation is tendered.</p>

Appeal by James Morgan, as assignee, etc., from a judgment of the Court of Common Pleas for the city and county of New York, entered in the office of the clerk of said court on the 1st day of August, 1895, upon the report of a referee.

Appeal by the plaintiff, William B. Cogswell, from a judgment of the Superior Court of the city of Hew York in favor of the defendants, entered in the office of the clerk of said court on the 18th day of May, 1895, upon the verdict of a jury rendered by direction of the court, and also from an order entered in the office of the clerk of said court on the 20th day of May, 1895, denying the plaintiff’s motion for a new trial made upon the minutes.

Reargumext of an appeal by the plaintiff, Bryan McAveney, from an order of the Court of Common Pleas for the city and county of New York, entered in the office of the clerk of said court on the 7th day of March, 1895, denying the motion made by the plaintiff to punish the- defendant Thomas H. Brush for contempt and for misconduct in putting in, or causing to be put in, fictitious or insufficient sureties upon an undertaking given to discharge the mechanic’s lien filed by the…

<p>Appeal by tlie defendant, Joseph Moore, from an order of the Special Term of the Court of Common Bleas for the city and county of New York, entered in the office of the clerk of said court on the Sd day of June, 1895, denying the defendant’s motion to set aside, for misconduct, the report of a referee.</p>

Appeal by the defendant, The Mayor, Aldermen and Commonalty of the City of New York, from a judgment of the Court of Common Pleas for the city and county of New York in favor of the plaintiff, entered in the office of the clerk of said court on the 11th day of February, 1895, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 1st day of March, 1895, denying the defendant’s motion for a new trial made upon the minutes.

<p>Unlicensed plumbers—the chief engineer of a hotel is not an employing or master plumber — Laws of 1893, chap. 603; 1898, chap. 66, §§ 1, 5, 13.</p> <p>Upon the trial of an indictment for a' violation of the act which creates an examining hoard of plumbers, and compels any person desiring or intending to conduct the trade, business or calling of a plumber or of plumbing, in any of the cities of this State, as employing or master plumber, to submit to an examination by the examining board of plumbers, and makes it unlawful for him to ■conduct such trade, business or calling without a certificate from the board as to his competency, it appeared that the defendant was the chief engineer of the Fifth Avenue Hotel, in New York city; that he was in the habit of hiring plumbers and steamfitters to assist him in performing work which he could not do alone; that he hired certain plumbers to make repairs about the hotel; that he was in control and directed the work, and that he and the plumbers were paid by the proprietors- of the hotel. It was admitted that he had not obtained from the examining board a certificate as to his competency.</p> <p>Held, that he was not pursuing the trade of a plumber, his employment being that of chief engineer of the hotel; and that this was so although it was a part of his duty to do such jobs of plumbing as might arise in the building, and, if necessary, to employ others to assist him in the work;</p> <p>That, assuming that he was engaged in the trade of a plumber, he was not so engaged as an employing plumber, because he did not pay the men; nor as a master plumber, because the supervision contemplated by the statute in the case of a master plumber was not called for by the character of the work actually done;</p> <p>That his supervision was like that of a fellow workman, clothed temporarily by the common master with a power to direct in regard to ordinary repairs;</p> <p>That he should not have been convicted.</p>

Appeal by Rollin Tracy from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 3d day of June, 1895, requiring the appellant to pay to Livingston Jaques, within two days from the service of said order, the sum of $838, together with $10 costs of the application.

Appeal by the defendant, Clarence Lexow, as receiver of the F. J. Kaldenberg Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8th day of December, 1894, upon the verdict of a jury rendered after a trial at the New York Circuit, and also from an order entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Simon M. Merrill, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 10th day of May, 1895, upon the dismissal of the complaint directed by the court after a trial at the New York Circuit before the court and a jnr.y-</p> <p>Plaintiff is a resident of New York city, and defendant is a Massachusetts corporation, having its principal office in Boston. Prior to January 1,1892, plaintiff had been for a long time general manager of defendant’s office at 924 Broadway, in the city of New York, at an annual salary of $2,500. In March, 1892, a new corporation was formed, the Wakefield Rattan Company of New York, which took over the New York business of the defendant. The title to the property in New York was transferred to it, and it opened a bank account in its own name. Plaintiff became the president and a director of this company. No salary attached directly to the offices, but his old one continued in force, and was paid by checks of the New York company. His duties remained in character the same, but his services now forwarded a business which, in name, belonged, not to the defendant, but to the New York company.</p> <p>On February 15, 1893, defendant wrote to plaintiff, requesting his resignation as president and director of the New York company, and that his connection with the business cease upon its acceptance. The next day the plaintiff wrote, tendering his resignation unconditionally. The day succeeding defendant wrote accepting the resignation, authorizing him to draw his salary to March first, and directing him to terminate his connection with the company at the close of business the next day, February eighteenth.</p> <p>Plaintiff sues to recover the unpaid balance of his salary for the year 1893, at the rate of $2,500 per annum. He was defeated upon the ground that he entered the service of the New York company on March 11, 1892, and that the defendant ceased to be liable to him from that date.</p>

Appeal by the defendants, Edward Yan Mess and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 4th day of September, 1894, upon the decision of the court rendered after a trial at the Mew York Special Term, except in so far as the said judgment dismisses the complaint as to the defendant Yan Mess.

Appeal by the defendant, Paulina Exkorn, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 27th day of July, 1895, upon the decision of the court rendered after a trial at the New York Special Term.

<p>Saratoga Springs—the village trustees hate exclusive power to employ an attorney— an attorney employed by the board of street- commissioners should not be paid by the receiver of taxes—the receiver of taxes may appeal from an order requiring him todo so—restitution ordered by the court—Code of Civil Trocedure, §§ 1294, 1323.</p> <p>Where the charter of a village gives to its hoard of trustees the power to employ counsel to take legal proceedings necessary to protect the village property, its board of street commissioners has no authority to employ an attorney, other than the village attorney, nor can services rendered by an attorney employed by such board be properly made an item of the current expenses of the board of street commissioners and be raised as such by tax, nor, if included in the amount raised by tax, should the receiver of taxes pay over the amount thus raised to the attorney rendering such services.</p> <p>Where the board of street commissioners of a village employs an attorney, allows his bill and procures the amount to be placed in the village tax budget, and its amount is subsequently collected and paid to the receiver of taxes, who is compelled to pay the amount to the attorney in obedience to a writ of peremptory mandamus, the receiver of taxes is a party aggrieved, within the meaning of section 1294 of the Code of Civil Procedure, and may appeal from the order granting the writ of peremptory mandamus.</p> <p>Where the receiver of taxes pays the claim of the attorney in obedience to a writ of peremptory mandamus, and the order granting the .writ is reversed upon appeal, the General Term has power and, if satisfied that the attorney was not entitled to such payment, should order restitution by him to the receiver of taxes of the-amount so paid.</p>

<p>Action for a penalty under the Bxcise Law in a Justices Court — the complaint must be specific —■ demurrable, because not sufficiently specific to be understood, — the error cannot be cured by evidence.</p> <p>An action for a penalty incurred by a violation of the Excise Law (Laws of 1893, chap. 401) is an action of a quasi criminal nature, and is, therefore, one of a class in which the rule that the defendant must be accurately informed of the exact charge against him should not be relaxed.</p> <p>A complaint in such an action which alleges that the defendant unlawfully sold and delivered intoxicating liquors contrary to law, hut which does not aver that the liquors were sold without a license, or that they were to be drunk or used on the premises, or whether they were sold to any of the classes of persons to whom sales of liquor are prohibited, is insufficient.</p> <p>Where such an action is brought and such a complaint is made in a Justice’s Court, a demurrer interposed to the complaint, upon the ground that the complaint is not sufficiently explicit to be understood, is proper.</p> <p>Where the complaint in such an action is thus defective, the error is not cured by the fact that sufficient proof was made upon the trial to establish a cause of action.</p>

<p>Summons—service of, upon a foreign corporation—it may be made upon a managing agent under subd,. 8 of % 482 of the Code, although the company has designated, an attorney under § 30 of chap. 690 of the Laws of 1892.</p> <p>The provision in the Insurance Law (§ 30 of chap. 690 of the Laws of 1892), relative to the manner in which foreign corporations may he served with process in an action or proceeding, does not exclude, even where a written appointment has heen made of the Superintendent of Insurance as its attorney, any other legal methods of service upon it, and where service is made upon such a corporation pursuant to the provisions of subdivision 3 of section 432 of the Code of Civil Procedure, it is good.</p>

Appeal by the plaintiff, Artemus H. Earle, from an order of the Supreme Court, made at the St. Lawrence Special Term and entered in the office of the clerk of the county of Franklin on the 4th day of September, 1895, requiring the plaintiff to exhibit to the defendant Helen L. Beman and her counsel certain promissory notes, which the complaint alleges were made by Ratlian Beman, the husband of the defendant, pursuant to the defendant’s direction, and indorsed by the…

<p>Appeal by the plaintiff, Louis Frazier, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Essex on the 12tli day of December, 1895, upon the decision of the court rendered after a. trial at the Essex Special Term sustaining the defendants’ demurrer to the complaint taken upon the ground that several causes of action therein had been improperly united, with notice of an intention to bring up for review on said appeal the decision and order of the Special Term directing said interlocutory judgment and the final' judgment as therein stated made on December 9, 1895, and entered in said clerk’s office on the 12th day of December, 1895.</p> <p>The first part of the complaint, consisting of paragraphs numbered 1, 2, 3, 4, states a cause of action in ejectment for the recovery of three parcels of land, closing with an allegation of damage to the plaintiff, “ as near as plaintiff can estimate the same, exclusive of the rents and profits heretofore received or which may be received by the defendants, or either of them, during the pendency of this action, of five hundred dollars.”</p> <p>Then follow paragraphs numbered 5 and 6.</p> <p>In paragraph 5 it is alleged that there are situated on the first and third above-described parcels of land, a public boat house and a bowling alley ; * * * (that) the business carried on in and in connection with said boat house and bowling alley has during the season of 1895 been profitable, and that the same has been conducted by the defendants, * * * and that * * * defendants have received the rents and profits arising from such business, amounted to the sum of five hundred dollars.”</p> <p>In paragraph 6 it is alleged that there is situated on the second above described parcel of land a hotel or house of public entertainment, and that the rents and profits of said business during the season of 1895, and down to the time of verification of the complaint, were $1,000, and that same were received by the defendants.</p> <p>The prayer of the complaint is:</p> <p>First. For the possession of the several parcels of land.</p> <p>Second. Damages for the withholding, including the rents and profits and the value of the use and occupation to the amount of $2,000.</p> <p>Third. That the defendants be required to account as to the rents and profits received by them from the several parcels of land, or any or either of them.</p>

Appeal by the plaintiff, The Erie and Central Netv York Railway Company, from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the ■county of Cortland on the 7th day of November, 1895, denying its motion for the appointment of commissioners to ascertain and fix the compensation to be made to the OAvners of certain lands in said petition described, to be taken by the plaintiff under proceedings to ■condemn the same by…

<p>Appeal by the plaintiff, Dora Snyder, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Delaware on the 10th day of September, 1895, upon the dismissal of the complaint directed by the court after a trial at the Delaware Circuit before the court and a jury, and also from the order entered in said clerk’s office on the 10tli day of September, 1895, dismissing the complaint.</p>

<p>Judgment creditors' action — chattel mortgage void for non-filing — ademandfora money judgment where the property is in existence— the equitable relief, called for by the facts, will be granted.</p> <p>A judgment creditor may proceed in the same manner, by a creditor's action in equity, to reach personal as to reach real property alleged to have bgen disposed of by the judgment debtor in violation of the rights of his creditors. The rule is the same, whether .the conveyance attacked is void by reason of fraud or for any other reason.</p> <p>Where equity has obtained jurisdiction of the parties and of the subject-matter of an action, the plaintiff will not be turned out of court because he has demanded a money judgment where he was only entitled to equitable relief.</p> <p>In a creditor’s action it appeared that on April 11, 1894, the defendant Edgar Wilkins executed a note to the plaintiff which was given in part payment of the price of a pop-corn wagon, purchased by Wilkins from the plaintiff; that judgment was recovered on the note and execution was issued thereon April 27, 1895, and was returned unsatisfied before the commencement of the creditor’s action; that on April 5,1894, Wilkins executed a mortgage covering the pop-corn wagon to John H. Sanborn, which mortgage was not filed until September 4, 1894; that Wilkins retained the possession of the pop-corn wagon until March 30,1895, when the defendant Kellie 0. Staves, as administratrix of Sanborn, who had died, took possession of it. It was admitted that Wilkins had no other property.</p> <p>The complaint in the action asked a judgment against the defendants Staves and Wilkins declaring the chattel mortgage to be void, and that Staves be adjudged to pay the plaintiff the value of the pop-corn wagon, or so much of it as would be necessary to pay the judgment recovered on the note, “and for such other-relief as may be just.”</p> <p>Held, that the complaint stated a cause of action entitling the plaintiff to some form of equitable relief;</p> <p>That as the appellate court did not know whether the defendant Staves had sold the property since the trial to a bona fide purchaser, or whether the property was still in existence, and, therefore, what fire appropriate remedy might be at this time, that such relief must be granted by the court below, which could .ascertain what relief the existing conditions demanded.</p>

<p>Complaint—an allegation as to the fraudulent disposition of his property by a vendee improperly stricken out— Code of Civil Procedure, § 549, subd. 4, §§ 1240, 1487.</p> <p>The complaint in an action set forth a cause of action upon a promissory note, and also one for goods sold and delivered, and then alleged that after the making of the note and the sale of the goods the defendant fraudulently conveyed his. property away in order to cheat and defraud his creditors, and that he had rendered himself insolvent. The court at Special Term struck out the allegation relative to the fraudulent disposition of the property.</p> <p>Held, that the plaintiff was entitled to the benefit of this allegation;</p> <p>That if it remained in the complaint and was proved on the trial the plaintiff would be entitled, in case of his success, to issue an execution against the person of the defendant without having previously procured any order of arrest in the action;</p> <p>That as the plaintiff’s right to issue an execution against the person, in case he succeeded in the action, depended upon the presence in the complaint of the allegation that the defendant had fraudulently disposed of his property, it could not be said that the allegation was irrelevant.</p>

Appeal by the defendant, Josephine Eundell, from a judgment of the County Court of Schuyler county, entered in the office of the clerk of the county of Schuyler on the 6th day of April, 1895, affirming a judgment rendered by a justice of the peace.

<p>A bequest to a mission which isa part of the work of a religious corporation is a bequest to the corporation — no trust is created by a suggestion as to the use of the fund.</p> <p>The will of Mary L. Ishell contained the following clause: “ I give to the Japan Mission under the direction of the Baptist Board of Foreign Missions one thousand dollars (§1,0.00). To pay the annual interest of the money well invested with good security.” The Japan Mission did not exist except as a department of the work of the Baptist Board of Foreign Missions, which rvas the hoard of managers of a corporation known as the American Baptist Missionary Union.</p> <p>Held, that the bequest was valid as a bequest to the American Baptist Missionary Union;</p> <p>'That a bequest to a department of an incorporated society, the department being inseparable from the corporation, and capable of being made effectual only through the corporation, might. be upheld as a bequest to the corporation itself;</p> <p>'That this was particularly the case where the department, the Baptist Board of Foreign Missions, had a distinctive name by which it was known, and which was the designation of a particular field or class of religious activities and charities sanctioned by law and having the stimulus of religious duty;</p> <p>That inasmuch as the testatrix intended to bequeath the legacy to the American Baptist Missionary Union effect should be given to her intention, notwithstanding the fact that there was a techical defect in the naming of the legatee;</p> <p>'That the bequest did not create a trust;</p> <p>That as the legacy was made to the American Baptist Missionary Union for its own benefit, the suggestion of the testatrix as to the manner in which the benefit of the legacy should he enjoyed, created a moral hut not a legal obligation.</p>

<p>Appeal by The Second National Bank of Oortland and others' from an order of the Supreme Court, made at the Chemung Special' Term and entered in the office of the clerk of the county of Cortland on the 15th day of July, 1895, denying their motion to vacate and set aside an order made at the Madison Special Term and entered in the office of the clerk of the county of Cortland on the 15th day of July, 1895, appointing temporary receivers of the-Hitchcock Manufacturing Company, and granting an injunction against the creditors of said company, and also from an order made at the Chemung Special Term and entered in the office of the clerk of the count}'- of Cortland on the 12th day of December, 1895, allowing the schedules filed in the proceeding for the voluntary dissolution of the corporation to be amended mino fro fiimo by diminishing the estimated value of the assets of the corporation, as, said last-mentioned order was corrected by an order made at the Madison Special Term and entered in the office of the clerk of the county of Cortland on the 20th day of December, 1895.</p>

<p>Appeal by the defendants, Martha J. Douglas and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Clinton on the 5th day of April, 1895, upon the decision of the court rendered after a trial at the Clinton Circuit, before the court without a jury, directing the foreclosure of an executory contract for the sale of land.</p> <p>Nathan Beman, being the owner of the premises in question in this action, did, February 15, 1870, enter into a contract in writing under seal with Henry Yell, Amos Yell and Joseph Sampiea,, whereby Beman agreed to sell to the Yells and Sampiea said premises for $1,000, $50 of which they then paid, and agreed to pay the balance in five equal annual successive payments, with interest, and upon payment being fully made said Beman was to execute and deliver to the vendees a good and sufficient deed of the premises; November 5, 1870, Beman assigned the contract to Wead, whose administratrix afterwards, and on July 2, 1884, assigned the same to plaintiff. The premises consist of 119 acres of uninclosed, unoccupied wood and swamp land in Clinton county. Some payments were made by the vendees, but there remained due and unpaid on the contract, November 20, 1894, when the action was tried, $1,619.03, principal and interest.</p> <p>September 11, 1873, a judgment was entered and docketed in Clinton county for $1,660.83 against the vendor, Nathan Beman, in favor of Seba Johnson and Darius Ayer, and execution afterwards issued thereon against the property of said Nathan Beman, under which execution the sheriff sold the premises described in said contract to William S. Douglas and John W. Beman, and afterwards in due time gave them a sheriff’s deed thereof, which deed they recorded in the Clinton county clerk’s office August 11, 1876. March 18, 1880, John W. Beman conveyed his interest to said Douglas. There is no evidence that Beman or Douglas, up to the time of receiving the sheriff’s deed, had any notice of the contract of sale or of any claim of the vendees therein named to the premises.</p> <p>The defendant Martha J. Douglas is the widow, and Hiram and Effie Douglas are the children of said William S. Douglas, who died • intestate March 24, 1887, and they defend, alleging that by virtue of the sheriff’s deed to said Douglas and John W. Beman and the due record thereof without notice of the said contract, they are the owners of the premises and that their title is not affected by said contract. The court held otherwise, and they appeal.</p>

<p>Services performed foí' a sister, a married woman — liability of the husband to pay therefor — conversation in the husband’s presence — evidence as to a promise of payment by the wife— opinion of a physician as to the value of services of a ruarse.</p> <p>Ia an action brought to recover for services rendered in attending the defendant’s wife during two confinements and during her last illness, it appeared that the plaintiff was the sister of the wife and the defense was that the services were gratuitous. While the plaintiff was testifying in her own behalf she was asked with reference to the third illness the question, “ Can’t you recollect tne conversation with defendant and defendant’s wife in regard to your going there?” to which the witness answered, “Yes.” The conversation was then, upon an objection being made to its reception, excluded.</p> <p>Held, that as the defendant was present at the conversation it was admissible.</p> <p>The plaintiff was also asked to state a certain conversation had with defendant’s wife at a certain time “ in regard to coming to care for her during her expected illness in confinement.”</p> <p>Held, that it was erroneous to exclude the evidence, as it boro upon the question whether the services were performed under such circumstances as would give the plaintiff the right to expect compensation.</p> <p>An attending physician may give his opinion as to the value of the services of one who acted as a nurse.</p>

<p>Appeal by the defendant, The City of Brooklyn, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 14th day of June, 1895, upon the verdict of a jury rendered after a trial at the Queens County Circuit, and also from an order entered in said clerk’s office on the 10th day of July, 1895, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Sailroad — death caused by a switch being left open — the promulgation of a rule in regard to'switches releases the corporation from liability.</p> <p>The law imposes upon a railroad company the duty of making and promulgating sufficient rules and regulations for the conduct of its business in its ordinary course, and for any extraordinary occasions thac may be reasonably anticipated; the rules must be such as, if faithfully observed, will give reasonable protection to the employee.</p> <p>In an action brought to recover damages resulting from the death of the plaintiff's intestate, caused by the alleged negligence of the defendant, a railroad corporation, it appeared that the defendant had promulgated a rule which required conductors to look after the switches used by their engines, and which stated that conductors would he held personally responsible for the switches used by their men; that the accident in question resulted from the fact that the conductor of the train next before the one upon which the accident happened had allowed a switch used by his train to remain open, and that he had not himself accompanied the train to the switch, but had left the matter to the brakeman, who had neglected to close the switch, and in consequence the intestate’s train entered the open switch and collided with the other train.</p> <p>Held, that the immediate cause of the death of the intestate was the negligence of his co-employee;</p> <p>That all that could he required from the defendant was that its rule should impose upon some of its employees the duty of seeing that the switches were closed, and that the rule in question complied with this requirement.</p>

Appeal by Peter Hughes, the plaintiff in the first above-entitled action, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 8th day of June, 1895, upon the report of a referee.

Appeal by The Trustees of the New York and Brooklyn Bridge from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 12th day of June, 1895, denying a motion for a writ superseding a writ of certiorari.

Appeal by the defendants, Alexander W. Sleight and Frances S. Titus, from a judgment of the Supreme Court in favor of the plaintifi, entered in the office of the cleric of the county of Dutchess on the 4th day of April, 1895, upon the decision of the court rendered after a trial at the Dutchess Special Term, especially from that part of said judgment which adjudges that they are or may be liable for any deficiency that may arise from the sale of the mortgaged premises…

<p>Reformation of a written contract — clear proof of a mistake required relief denied in the absence of fraud or mutual mistake where the parties cannot be put in statu quo.</p> <p>Courts of equity do not grant the remedy of reforming a contract upon a probability, nor even upon a mere preponderance of evidence, but only upon a certainty of error.</p> <p>In the absence of proof of fraud or mutual mistake the court will not reform a contract where it is impossible to restore the parties to their original position.</p>

<p>Appeal by the defendants, Heman Clark and James W. Dwyer, from a judgment of the Supreme Court in favor of the plaintiff,, entered in the office of the clerk of the county of Queens on the 10th day of June, 1895, upon the verdict of a jury rendered after1 a trial at the Queens County Circuit, and also from an order entered in said clerk’s office on the 12th day of July, 1895, denying the. defendants’ motion for a new trial made upon the minutes.</p>

<p>Municipal corporation — not Halle for an ultra vires act of its officers — imprisoning persons in a house where there is typhoid fever—New York water supply territory.</p> <p>Where an act which is made the basis of an action against a municipal corporation was not within the scope of the power conferred by statute upon the corporation, the corporation is not liable for injuries which resulted from the act., although officers of the corporation may have expressly directed 'its performance.</p> <p>The complaint in an action brought against the city of Hew York alleged that the plaintiff’s son, who resided with him on his farm at Lake Mahopac, Putnam county, which was within the territory of the water supply of the city of Hew York, having been taken ill with typhoid fever, the defendant, by its officers or representatives, entered upon the premises in company with the deputy sheriff of Putnam county, ordered the plaintiff to remain in the house, placed the deputy sheriff in charge, and ordered the sheriff to arrest the plaintiff or any of the members of his family who attempted to leave the house, and that the plaintiff was in this manner restrained of his liberty for a period of three weeks.</p> <p>Under the provisions of section 27 of chapter 189 of the Laws of 1898, the commissioner of public works of the city of New York was authorized to take such measures as might be necessary to preserve from pollution and defilement all the sources of its water supply, and to accomplish this end he was empowered to enter upon any land on, adjacent or contiguous to any of the sources of.the water supply, and to abate and remove the cause of any pollution or defilement.</p> <p>Held, that the statute empowering the commissioner of public works to enter upon the lands in question, and to abate and remove any nuisances, gave him no power to interfere with or restrain or quarantine persons who lived upon the property;</p> <p>That consequently the city of New York was not liable for any damages which resulted from the act set forth in the complaint.</p>

Appeal by the plaintiff, Lorenz Leopold, from a judgment of the City Court of Brooklyn in favor of the defendants Esther Hallheimer and Max Hallheimer, entered in the office of the clerk of said court on the 5th day of August, 1895, upon the decision of the court rendered after a trial at a Special Term of the City Court of Brooklyn dismissing the complaint.

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the City Court of Brooklyn, entered in the office of the clerk of said court on the 10th day of April, 1895,. upon the verdict of a jury, for $6,000, and also from an order entered in said clerk’s office on the 15th day of April, 1895, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, The Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the lltli day of July, 1895, upon the verdict of a jury rendered after a trial at the Queens County Circuit, and also from an order entered in said clerk’s office on the 9th day of Sejhember, 1895, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the plaintiff, Jacob R. Shipherd, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 9tli day of July, 1895, upon the decision of the court rendered at the Queens County Special Term dismissing the complaint upon the plaintiff’s opening.</p>

<p>Appeal by the plaintiff, Simon Frindel, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 23d day of April, 1895, upon the verdict of a jury rendered after a trial at the Kings County Circuit, and also from an order entered in said clerk’s office on the 23d day of April, 1895, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, Archibald R. McBean, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Rockland on the 18th day of March, 1895, upon the decision of the court rendered after a trial at the Kings County Special Term.</p>

Appeal by the defendant, Frederick 0. Whitney, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 29th day of May, 1895, upon the decision of the court rendered after a trial at the Kings County Special Term sustaining the plaintiff’s demurrer to the counterclaim interposed to the first cause of action set out in the complaint.

Appeal by the plaintiff, Caroline E. Girty, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 8th day of May, 1895, upon the decision of the court rendered after a trial at the Kings County Special Term dismissing the complaint upon the merits, with notice of an intention to bring up for review upon such appeal the decision upon which said judgment was founded.

Appeal by Everitt R. Pine and others, next of kin of Maryette Matthews, deceased, from so much of a decree of the Surrogate’s Court of the county of Queens, made by the county judge acting as surrogate, dated May 25, 1895, as directs the executor to divide $7,184.94 of the estate into fourteen equal parts, instead of eleven equal parts, and pay one of such parts to Hiram Smith, one to Ira Smith and one to Thomas Smith; also, from the award to them of ninety dollars costs.

<p>Motion by the plaintiff, Annie Nilan, as administratrix, etc., of James Nilan, deceased, for a new trial on a case containing exceptions ordered to be heard at the Appellate Division in the first instance, upon the dismissal of the complaint directed by the court after a trial at the Richmond Circuit before the court and a jury. Also, an appeal by said plaintiff from an order entered in the office of the clerk of the county of Richmond on the 30th day of September, 1895, denying the plaintiff’s motion to set aside said dismissal of the complaint and for a new trial.</p>

Appeal by the plaintiff, Michael Devine, as administrator, etc., of J ames Devine, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 18th day of May, 1895, upon the dismissal of a complaint directed by the court after a trial before the court and a jury at the Kings County Circuit.

Appeal by the defendant, The Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 10tli day of June, 1895, upon the verdict of a jury rendered after a trial at the Kings County Circuit, and also from an order entered in said clerk’s office on the 12th day of June, 1895, denying the defendant’s motion for a new trial made upon the minutes.

<p> Cloud upon title—assessment void upon its face—findings construed to support a judgment. </p> <p>Where, in an action brought for the cancellation of an assessment, alleged to be void and to be a cloud upon the plaintiff’s title, the’ defense is interposed that the assessment does not create a cloud upon the title, for the reason that it is void on the face of the record, and the appeal papers, on an appeal from a judgment setting aside the assessment as a cloud upon the plaintiff’s title, do not contain the evidence in the case, in order to justify a reversal on the ground that the assessment was void and did not constitute an apparent lien the invalidity must be one which can be ascertained from the record itself, so that a person examining the assessment roll would he informed that the assessment was void at the same time that he ascertained that it existed.</p> <p>Where, on an appeal which does not bring up the evidence, the findings of a trial court are capable of two interpretations, the appellate court is hound to adopt that interpretation which will support the judgment.</p>

<p>Action to reform a contract ■—signed individually, hut intended to he the contract of an association — waiver of the omission of the association as a party defendant.</p> <p>The complaint in an action alleged that the plaintiffs had signed their names as individuals to an agreement purporting to have heen made between the Wyckoff Heights Improvement Association and the defendant, whereas they intended to sign only as officers of that association; that the defendant had brought an action against them based upon the allegation that such agreement had been executed by them as individuals. The plaintiffs asked for a reformation of the agreement and an adjudication that they did not enter into the agreement as individuals. The answer interposed by the defendant contained no denials and pleaded only the pendency of a former action. Upon this state, of the pleadings the plaintiffs made a motion to have the association made a party defendant, which was denied.</p> <p>Held, that the denial of such application was proper;</p> <p>That as the defendant admitted that the plaintiffs signed not as individuals, but as officers, and did not object to the omission of the association as a party defendant, the plaintiffs had no right to bring in the association at this stage of the action.</p>

Appeal by the plaintiff, Amzi L. Barber, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Richmond on the 6th day of August, 1895, upon the decision of the court rendered after a trial at the Richmond Special Term dismissing the complaint upon the merits.

Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 13th day of July, 1895, upon the decision of the court rendered after a trial at the Westchester Special Term.

Appeal by the defendant, The Peerless Manufacturing Company,, from a judgment of the Supreme Court in favor of the plaintiffs,, entered in the office of the clerk of the county of Queens on the 8th day of August, 1894, upon the decision of the court rendered after a trial at the Queens County Special Term.

Appeal by the plaintiffs, Magdalena Grafing and another, as executrices, etc., from a judgment of the Supreme Court in favor of the defendant, bearing date the 8th day of July, 1895, and entered in the office of the clerk of the county of Kings, upon the decision of the court rendered after a trial at the Kings County Special Term, dismissing the plaintiffs’ complaint upon the merits, except from so much of said judgment as denies the defendant costs, and grants an extension…

Appeal by the defendant, the Sprague Electric Elevator Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 1st day of June, 1895, upon the verdict of a jury rendered after a trial at the Kings County Circuit, and also from an order entered in said clerk’s office on the 17th day of June, 1895, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Metropolitan Life Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 12th day of February, 1895, upon the verdict of a jury rendered after a trial at the Kings County Circuit, and also from an order entered in said clerk’s office on the 12th day of February, 1895, denying the defendant’s motion for a new trial made upon the .minutes.

Appeal by the defendant, William H. Janes, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk- of the county of Kings on the 25th day of May, 1895, upon the verdict of a jury rendered by direction of the court after a trial at the Kings County Circuit.

Appeal by the defendants, George F. Hicks and another, individually, and as sole surviving executors and trustees, etc., of Mary Jewett, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 26th day of August, 1895, upon the decision of the court rendered after a trial at the Kings County Special Term, said judgment having been resettled, and the form so resettled having been entered in…

Appeal by the defendant, The Weidmann Cooperage, from a judgment of the Oity Court of Brooklyn in favor of the plaintiff, entered in the office of the clerk of said court on the 22d day of April, 1895, upon the verdict of a jury for $1,150, and also from an order entered in said clerk’s office on the 22d day of April, 1895, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Martha T. Willets, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Queens on the 2d day of November, 1895, upon the decision of the court rendered after a trial at the Queens Oounty Special Term.

Motion by the plaintiff, John Tomko, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the dismissal of the complaint directed by the court after a trial at the Queens County Circuit before the court and a jury on the 12th day of June, 1895.

<p>Appeal by the defendant, the Metropolitan Life Insurance Company, from a judgment of the Supreme Court in favor of the-plaintiff, entered in the office of the cleric of the county of Westchester on the 14th day of October, 1895, upon the verdict of a jury rendered by direction of the court after a trial at the Westchester Circuit, and also from an order entered in said clerk’s office on the 19th day of October, 1895, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendants, Isaac B. Newcombe and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 16th day of October, 1895, upon the verdict of a jury rendered by direction of the court after a trial at the New York Circuit.

<p>Appeal by the defendant, Albert Wagner, from a judgment of the Superior Court of the city of New York, entered in the office of the clerk of said corn't on the 17th day of May, 1895, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 28th day of May, 1895, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendants, Charles B. Webster and others, from -a judgment of the Court of Common Pleas for the city and county of Hew York in favor of the plaintiff, entered in the office of the -clerk of said court on the 8th day of July, 1895, upon the report of ■a referee.

<p>Attorney and client — a retainer in many proceedings where the items of account are many and complex justifies a reference.</p> <p>In an action "brought by a firm of attorneys to recover for professional services rendered to the defendant, and also for services rendered in relation to the will of James Stokes, deceased, of which the defendant, was executor, the defendant admitted in part the retainer of the plaintiffs and the rendition of the services to himself; he denied their value and alleged payment as to most of them, and that those rendered to the estate were rendered to him as executor, and were fully paid. It also set up misconduct of the plaintiffs, their exaggeration of the importance of the actions and matters in which the services were rendered, and that they misled the defendant into a mistaken belief as to the peril in which he stood; and that the important work was not done by them but by other persons who had been retained as counsel in the case. A bill of particulars served in the case showed that the services were made up of a large numFer of items, and did not result from a retainer in a single proceeding, but from a retainer to attend generally to the business of the defendant in numerous proceedings.</p> <p>Meld, that while it was the general rule that a case involving an attorney’s compensation should not be referred where a client makes charges of misconduct against the attorney, yet that, in the present action, a reference was justified;</p> <p>That it would be practically impossible for a jury to separate the evidence which was applicable to the services rendered to the defendant as an individual from that applicable to the services rendered to him as executor, and that for this reason, as well as because of the complexity of the matter, a reference was proper, upon the ground that the case involved the examination of a long account.</p>

Appeal by the defendant, The Metropolitan Crosstown Railway Company, from a judgment of the Court of Common Pleas for the city and county of New York in favor of the plaintiff, entered in the office of the clerk of said court on the 21st day of June, 1895, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 2d day of July, 1895, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Anastasia Byrne and others, from an interlocutory judgment of the Superior Court of the city of New York in favor of the plaintiff, entered in the office of the clerk of said court on the 18th day of October, 1895, upon the decision of the court, rendered after a trial at a Special Term of the Superior Court, sustaining the plaintiff’s demurrer to certain defenses contained in the answer of the said defendants, and also from an order made at a…

<p>Appeal by the defendant, The Mayor, Aldermen and Commonalty of the City of Yew York, from a judgment of the Court .of Common Pleas for the city and county of Yew York in favor of the plaintiff, entered in the office of the clerk of said court on the 22d day of April, 1895, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of April, 1895, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>The action was brought to recover the damages resulting from an injury caused to plaintiff by falling into a hole permitted to exist through- the alleged negligence of the defendant in a public street in the city of Yew York.</p>

<p> Appellate Division ■—may resettle an order of a General Term,. </p> <p>The respective Appellate Divisions of the Supreme Court are the successors of the several General Terms, and an Appellate Division may, in furtherance of justice, entertain a motion to resettle an order, entered upon a decision of the General Term, so as to make the order comform to the actual decision of the court.</p>

Appeal by the plaintiff, Charles Minzesheimer, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 27tli day of November, 1895, upon the dismissal of the complaint directed by the court after a trial at the New York Circuit before the court and a jury. The action was brought to recover the amount of a disputed claim against the estate of Philip C. Bruns.

<p>Appeal by the defendants, the American Plaster Board Company and George W. Sessions, from a judgment of the Supreme Court in favor of the plaintiff and the defendant, The Eastern Plaster Board Company, entered in the office of the clerk of the county of New York on the 24th day of August, 1895, upon the verdict of-a jury rendered after a trial at the New York Circuit, and also from an order entered in said clerk’s office on the 10th day of ‘June, 1895, denying the defendants’ motion for a new trial upon the minutes.</p>

<p>Partition — a will directing a division among “ daughter’s issue at the age of twenty-one" is valid—conveyance pendente lite is without effect.</p> <p>An action was brought to partition certain premises acquired under the will of Mary L. Tddd, which, in substance, first, gave her husband one-half of all the income of her estate for life; second, to her daughter Adeline R. Tucker the' other half of all the income of her estate for life, and directed, third, that if both her husband and daughter died, her estate should be equally divided between her “ daughter’s issue at the age of twenty-one; ” fourth, that if her husband died first the estate should go to her daughter, and at her death to her children, and that, if the daughter had no issue, it should go to her cousins; fifth, that if her daughter died first leaving no children, the estate should go-to her husband, and at his death to her nieces and nephews.</p> <p>Held, that the true construction of the will was that the husband and daughter should each have half the income of the estate during their joint lives, and that, upon the death of either, the survivor should, for the rest of his or her life, have, in addition to his or her own share, the share of the decedent; that after the expiration of these life estates the estate should go the daughter’s, issue at the age of twenty-one, and that, in default of such issue, it should go to the cousins of the daughter, being the nieces and nephews of the testatrix;</p> <p>That the provision contained in the third clause, that if the husband and daughter died the estate should be divided equally between the “ daughter’s issue at the age of twenty-one,” was valid and did not violate the statute against perpetuities.</p> <p>A gift or devise to a person at his majority, or a direction of payment or transfer to him at that time, imports a condition subsequent and not precedent, permitting the vesting of the estate or interest, and merely defeating it on the non-fulfillment of the condition.</p> <p>This is the rule whether or not there is a limitation over, in case the taker shall die during minority.</p> <p>It further appeared that Mary L. Todd, the testatrix, appointed Rufus L. Todd her executor and gave him a power of sale, and that after this action had been begun and after a lis pendens had been filed and issue joined, but before the referee had filed his report, the husband, as an individual and as executor and trustee under the will of Mary L. Todd, and Adeline R. Tucker conveyed to another-person the interest of the testatrix and which the testatrix took as heir at law of her parents, William and Rachel Shannon, whose property the action was designed to partition. The referee ignored this conveyance.</p> <p>Held, that this was correct;</p> <p>That the grantee could no more, after the filing of the Ms pendens, obtain from a party to the action, by means of a power of sale contained in a will, a title which would be superior to and supersede the judgment, than he could do so by a transfer of an interest held by the grantor in his individual capacity.</p>

Certiorari issued out of the Supreme Court and attested on the 3d day of May, 1895, directed to O. H. La Grange, James R. Sheffield and Austin E. Ford, composing the Board of Fire Commissioners of the City of New York, commanding them to certify and return to the office of the clerk of the county of New York all and singular their proceedings relating to the discharge of the relator from the position of inspector of combustibles in the fire department of the city of New York.

Appeal by the defendant, Eberhard Faber, from an interlocutory judgment of the Court of Common Pleas for the city and county of New York i-n favor of the plaintiff, entered-in the office of the clerk of said court on the 6th day of November, 1895, upon the decision of the court rendered after a trial at a Special Term of said court overruling the defendant’s demurrer to the complaint.

Appeal by the plaintiff, Sarah L. Holmquist, as administratrix, etc., of Diadema Sommer, deceased, from a judgment of the Court of Common Pleas for the city and county of New York in favor of the defendant, entered in the office of the clerk of said court on the 16th day of November, 1894, upon the decision of the court rendered after a trial at a Special Term of said court dismissing the complaint upon the merits.

Appeal by tlie defendants, Herman Kertsclier and others, from, a judgment of the Court of Common Pleas for the city and county of New York in favor of the defendant, John Schubaclc, entered in the office of the clerk of said court on the 8th day of October, 1894, upon the report of a referee.

Appeal by the defendant, the George 0. Treadwell Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 19th day of April, 1895, upon the verdict of a jury rendered by direction of the court after a trial at the New York Circuit.

Appeal by the plaintiff, the Hecla Powder Company, from an order of the Supreme Court, made at the New York Special Term, bearing date the 19th day of November, 1895, and entered in the office of the clerk of the county of New York, denying the plaintiff’s motion for a new trial on the ground of newly-discovered evidence.

Appeal by the Union Trust Company of New York from an order of the Court of Common Pleas for the city and county of New York, made at a Special Term of said court and entered in the office of the clerk of said court on the 5th day of December, 1895, denying its motion to modify an injunction order, made and entered in the office of the clerk of said court on the 2d day of November, 1895, and continuing said injunction.

Appeal by the plaintiff, The Garvin Machine Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 19th day of September, 1895, upon the report of a referee who dismissed the complaint at the close of the plaintiff’s evidence.

<p>Appeal by B. S. Guernsey, the attorney for the defendant, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 30th day of March, 1895, requiring him to consent to the substitution of another attorney for the defendant in all actions in which he is such defendant’s attorney of record, and to deliver up all papers therein upon demand.</p>

Appeal by the defendant, William I. Fox, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 25th day of May, 1895, upon the verdict of a jury rendered by direction of the court after a trial at the New York Circuit.

<p>Appeal by the plaintiff, William A. Harding, as administrator, etc., of Medad W. Stone, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 19th day of November, 1894, upon the report of a referee.</p>

Appeal by the plaintiff, James Rogers, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of December, 1895, denying the plaintiff’s motion to continue a preliminary injunction and vacating said injunction.

Appeal by the plaintiff, Achilles E. Davis, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 22d day of August, 1895, granting the defendant’s motion to set aside the judgment entered against the defendant by default upon service of the summons by publication nursuant to an order of the court.

<p>Appeal by the defendant, Y. Loewer’s Gambrinus Brewing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 18th day of May, 1895, upon .the verdict of a jury rendered after a trial at the New York Circuit, and also from an order entered in said clerk’s office on the 20th day of May, 1895, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendants, Ebenezer Spooner and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 2d day of June, 1894, upon the verdict of a jury rendered after a trial at the New York Circuit.</p> <p>The notice of appeal states that an appeal was taken from an order denying the defendants’ motion for a new trial. No such order, however, appears in the printed case.</p>

Appeal by the plaintiff, Mary Finn, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the cleric of the county of New York on the 1st day of August, 1895, upon the decision of the court rendered after a trial at the New York Special Term dismissing the plaintiff’s complaint upon the merits.

Appeal by the defendant, Louise Diepenbrook, as executrix, etc., of Alois Diepenbrook, deceased, from a judgment of the Court of Common Pleas for the city and county of New York in favor of the plaintiff and the defendant, William Erdtmann, entered in the office of the clerk of said court on the 23d day of October, 1895, upon the decision of the court rendered after a trial at the Equity Term of said court; also from an order entered in said clerk’s office on the 15th day of…

<p>Certiorari issued out of -the. Supreme Court and attested on the 10th day of December, 1894, directed to James J. Martin, John C. Sheehan, Charles II.' Murray and Michael Kerwin, as police commissioners of the city of New York, constituting the board of police of the police department of the city of New York, requiring them to certify and return to the office of the clerk of the county of New York all their proceedings in relation to the dismissal of the relator from the police force of the city of New York.</p>

Appeal by the plaintiff, Charles W. Brown, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 26th day of November, 1895, upon the decision of the court rendered after a trial at the New York Special Term, sustaining the defendant’s demurrer to the complaint on the ground that the complaint did not state facts sufficient to constitute a cause of action.

Appeal by the plaintiff, William Roeber, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 21st day of October, 1895, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the plaintiffs demurrer to the eighth paragraph of the defendant’s answer, and from said judgment as amended by an order made at the New York Special Term, bearing date…

Appeal by the defendant, The Star Company, from a judgment ■of the Court of Common Pleas for the city and county of Eew York in favor of the plaintiff, and the defendant John A. Cockerill, ■entered in the office of the clerk of said court on the 9th day of February, 1895, upon the verdict of a jury. The action was brought against fictitious defendants in whose place the Star Company and John A. Cockerill, by whom an .answer was served, were substituted as defendants.

Gertiorari issued out of the Supreme Court and attested on the 28th day of December, 1895, directed to Theodore Roosevelt, Avery D. Andrews, Andrew D. Parker and Frederick Grant, as police commissioners of the city of New York, constituting the hoard of police of the police deparnment of the city of New York, requiring them to certify and return to the office of the clerk of the county of New York all and singular their proceedings in reference t.o the dismissal' of the…

<p>Appeal by Ada Rehan and others from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 3d day of July, 1895, confirming the report of commissioners of estimate and assessment in the matter of the opening of One Hundred and Sixteenth street in the city of New York.</p>

<p>Landlord md tenant — holding over after the end cf the term — a question of fact — effect of a license to remain after the expiration of the term.</p> <p>Where a tenant holds over after the expiration of his term, the law will imply an agreement to hold for another year upon the terms of the prior lease.</p> <p>Holding over is the act of .keeping possession of the premises, and the question to he determined is whether or not the tenant remained in possession of the property after the expiration of his term.</p> <p>This is ordinarily a question of fact and the burden of proof is upon the landlord to establish the fact.</p> <p>The possession of the tenant after the termination of the lease, which will hind him, must he a continuance of that possession which he acquired under the lease, and if it appears that the possession was surrendered to the landlord for •any interval of time, however short, the resumption of possession by the tenant under any other agreement will not impose upon him the liability which attaches to a tenant who holds over after the expiration of his term.</p> <p>Where the last day of the term of a lease falls on Sunday the tenant, in the absence of any local custom to the contrary, would be entitled to the whole of the following Monday as period during which he might remove his effects from the premises.</p> <p>The evidence in an action in which the defendant was sought to he held liable for holding over after the expiration of its term tended to show that the manager of a corporate lessee went at the expiration of the term of the lease to the office of a real estate agent having charge for the lessor of the leasing of the demised propert)r, with the intention of surrendering- its possession and to give up what personal property was on the premises; saw one Cox, the clerk of the real estate agent, and delivered the key to him ; that an understanding was then arrived at between the manager and Cox that the manager was to clean out the premises, and for that purpose Cox (who, so far as appeared, had no authority to give such permission) handed hack the key to the manager.</p> <p>Held, that, upon the proof, the questions should have been submitted to the jury to determine whether the defendant held over; whether there was a surrender of the possession under the lease, and a mere license given by Cox, acting for the lessor’s agent, to retake possession in order to clear up the premises, and whether such possession as was taken was under the license or under the lease;</p> <p>That it was erroneous in the court to refuse to submit to the jury the question whether the defendant held over under the lease.</p>

<p> The commissioner of jurors of New York city may discharge a clerk without a hearing. </p> <p>The commissioner of jurors of the city of New York is not the head of a department within the meaning of section 48 of the Consolidation Act (Laws of 1883, chap. 410), and the provisions of that section, that no regular clerk shall be removed until he has been informed of the cause of the proposed removal and has been allowed an opportunity of making an explanation, do not apply to the case of a clerk appointed by such commissioner.</p> <p>Such commissioner is empowered by section 1664 of the Consolidation Act to from time to time appoint and at pleasure remove his assistants, clerk and messengers.</p>

<p>Appeal by the defendant, Henry J. Iiavnor, from a judgment ■of the Court of General Sessions of the Peace in and for the city and county of Hew York, rendered on the 4th day of Hovember, 1895, convicting him of a violation of section 1 of chapter 823 of the Laws of 1895, prohibiting any person from carrying on or engaging in the business of shaving, hair cutting or other work of a barber on the first day of the week.</p>

Appeal by the defendants, Horace H. Rapalyea and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of July, 1894, upon the decision of the court rendered after a trial at the New York Special Term.

<p>Appeal by the defendants, Henry Siemann and another, from so-much of an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of' Hew York on the 17th day of August, 1895, as denies the defendants’ application for a bill of particulars and fails and omits to require the plaintiff to state and specify the name, nature and character or other description of the dangerous and contagious disease with which the plaintiff alleged that she bee,ame infected, contaminated and diseased as set forth in the notice of motion upon which the said order was. made, and from so much of said order as denies defendants’ applicar tion and fails and omits to require the plaintiff to specify the details and particulars of what the plaintiff alleges in the 6th paragraph of the complaint to be “ the fault, carelessness, negligence, wrongdoing- and unlawful conduct of the defendant,” and from so much of said order as denies defendants’ application and fails and omits to require the plaintiff to state and specify the times and dates of the suffering of the said plaintiff, and the length and period of time of her suffering and sickness, and also from an order entered in said clerk’s office on the 14th day of September, 1895, denying the defendants’ motion to resettle the order granting defendants’ motion for a bill of particulars, and to make the complaint more definite and certain.</p> <p>The order granted defendants some relief, but it is claimed that the court should have gone further and have compelled the plaintiff to state in her complaint the name, nature, character or other description of the dangerous and contagious disease which she claims she contracted, and to state in her bill of particulars the fault, carelessness, negligence, wrongdoing and unlawful conduct complained o£</p>

<p>Appeal by the defendants, Thomas J. McKee and another, as executors, etc., of Matthew Byrnes, deceased, and others, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 12th day of November, 1895, as denies their motion for costs and an extra allowance.</p> <p>The proceeding was instituted under the provisions of chapter 23 of the Code of Civil Procedure to acquire title to real estate in the city of New York. It is conceded that the defendants were, for various reasons, under legal disability to convey title to the property taken. It is apparent, therefore, that no offer to purchase the •property could be made by the plaintiff under section 3372 of the Code. The same section provides that if no offer was made the court should, in the final order, direct that the defendant recover of the plaintiff the costs of the proceeding, and might also grant an additional allowance of costs, not exceeding five per cent upon the amount awarded. The question is whether this latter provision applies to a case where, under the former provisions of the section, no offer could be made.</p>

<p>Contempt — order for an examination before trial — the reversal of an order vacating it revives the original order—personal service of the order of reversal unnecessary— nor of an order to show cause why defendant should not be punished.</p> <p>Upon an appeal from an order denying the plaintiff’s motion to punish the defendant for contempt in disobeying an order to appear and be examined as a witness before trial, it appeared that the plaintiff had, on the 38th day of June, 1895, obtained an order requiring the defendant to appear on the 8th day of July, 1895, and on such other days as the court or judge should, by adjournment or otherwise, direct, which order was duly personally served within the State upon the defendant on the 38th day of June, 1895. It was vacated on July 10, 1895, and on the 18th day of October, 1895, the order vacating it was reversed by the General Term the order of reversal requiring the defendant to appear, in pursuance of the original order, upon the 33d day of November, 1895, which order of reversal, pursuant to its terms, was duly personally served on the attorneys for the defendant in this State, and also upon the defendant himself in England, the defendant having left the State about July 10, 1895, and never having returned. The defendant failed to appear on November twenty-second, and bis default was taken, and subsequently an order was made requiring him to show cause why he should not be punished for contempt, which latter order, pursuant' to its terms, was personally served within this State upon the defendant’s attorneys.</p> <p>Held, that the defendant was properly adjudged to be in contempt;</p> <p>That it was not essential that the General Term order, reversing the order vacating the original order, should he personally served upon the defendant as the effect of the General Term order was to reinstate the original order, which had been personally served on the defendant, and was binding upon him;</p> <p>That, as the court had acquired jurisdiction of the defendant, that jurisdiction was not lost because the defendant had succeeded in procuring the original order to be vacated by an order which was subsequently reversed on appeal;</p> <p>That it was not necessary that the order, that the defendant show cause why he should not be punished for contempt, should be personally served on the-defendant within this State; that it was enough that it was duly served upon his attorneys. ■</p>

Appeal by the plaintiff, Benigno S. Suarez, as executor, etc., of Hyacinth S. Suarez, from a judgment of the Supreme Court in favor of the defendants, upon the decision of the court rendered after a trial at Special Term. The action was brought to foreclose a mortgage given by the defendant Isabella de Montigny to Daniel Morison, substituted trustee of the separate estate of the defendant Isabel von Linden.

<p>Landlord and tenant—nature of the tenure of a lessee who is also apart owner of the demised premises and, entitled to apart of the rent — amendment of cm answer on a second trial, by withdrawing cm admission made thereby —■ effect of holding over by a tenant after notice by him that he mil not renew a lease.</p> <p>In an action brought to recover rent under a lease, where it was claimed that the defendants held over after the expiration of the term thereof, it appeared that the premises in question were owned, by the plaintiff and by the defendant Warren M. Healey as tenants in common; that on May 30, 1891, they leased the premises to a firm composed of said Warren M. Healey and another; that three-fourths of the rent was payable to the plaintiff and one-fourth to the defendant Healey, and that the defendants remained in possession after the expiration of the term.</p> <p>Upon the trial of the action the defendants asked leave to amend their answer by-striking out the admission that they went into possession under the lease-(it appearing that they were in possession before the lease was made), which was refused.</p> <p>The defendants also offered to prove two letters passing between tho defendant Warren M. Healey and his firm, by which the firm notified Healey that they would, not avail themselves of their option to renew the lease, but would like to occupy the premises for a few weeks after the expiration of the term at a pro rata rent, and that Healey had replied to this that they might do so upon, certain conditions.</p> <p>Held, that, although one of the lessees, Warren M. I-Iealey, was a part owner of the demised premises, it did not alter the presumption that when the firm, including Healey, held over, they elected to renew the lease for another, year;</p> <p>That the amendment to the answer was discretionary with the trial court, did not change the issue, and was properly refused, where the admission sought to be withdrawn by the amendment had been allowed to stand after one trial and after the decision of the General Term upon an appeal from the judgment rendered thereon;</p> <p>That the letters which passed between the firm and Warren M. Healey were, properly excluded;</p> <p>That notice that the lessees would not renew the lease, even if it had been given to both the lessors, would not of itself have avoided the legal effect which must, attend a holding over after the expiration of the term;</p> <p>That Warren M. Healey could not, however, bind the plaintiff by a consent that. the lessees might hold over if they desired to do so;</p> <p>That-, as Healey's consent was given at a time when he occupied the position of a. lessee simply, and not that of a tenant in common, his consent to the occupation of the premises by his firm was ineffectual.</p>

Appeal by the plaintiff, the Baker Transfer Company, from a. judgment of the Supreme Court in favor of the defendant, entered upon the dismissal of the complaint directed by the court,, upon-a trial before the court and a jury, on the ground that the complaint did not state facts sufficient to constitute a cause of action.

<p>Appeal by the plaintiffs, Francis J. Gasquet and another, as trustees, etc., under the will of Eveline G. Marshall, deceased, from so much of a judgment of the Supreme Court, entered upon the decision of the court rendered after a trial at Special Term upon the report of a referee, as directs that the plaintiffs as trustees of the trusts created by the will of Eveline G. Marshall, deceased, for the benefit of Marie Marshall and remaindermen, pay over to J. Frederic Kernochan as committee of Marie Marshall the total accumulated income in their hands on May 11, 1895, less the commissions, costs and allowances thereinbefore directed to be paid, and from each and every portion of said judgment in any way relating to said payment.</p> <p>The action was brought for an accounting by the plaintiffs as trustees under the will of Eveline G. Marshall. The testatrix had three daughters, one of whom was of unsound mind. By her will the testatrix divided her estate into three equal parts. She gave to the daughters of sound mind each an undivided one-tliird of her estate, and she gave the remaining one-third of her estate to the plaintiffs in trust for the benefit of the daughter of unsound mind, by the following language: “ The remaining one of said three shares I give and bequeath to my executors, in trust, nevertheless, to invest and keep the same invested * * * and to collect and receive the interest, income and profits thereof and to aioply the same to the use of my daughter Marie Marshall during her natural life, and upon her death to assign, transfer and set over the said share to her children, if any,” etc.</p> <p>A committee has been appointed of this daughter of unsound mind and is a party defendant in this action. The income upon this trust fund has accumulated in the hands of the trustees beyond the immediate necessities of this daughter, to the amount of $100,000> and upwards. The decree herein ordered such accumulated income to be paid over to such committee. From this provision in the decree this appeal is taken, the trustees claiming that they are entitled to retain all accumulation of income from this fund in their hands until the death of this daughter.</p>

<p> ■Judgment—a judgment in another State against all the members of a firm, entered upon service of proceess upon one member only, cannot be enforced in the State of New York against the members not served. </p> <p>Where a judgment has been recovered in another State against the members of a co-partnership, only one of whom is personally served with the process of the court in that State, although the judgment is entered in form against all the members of the firm, reciting the fact that service of process has been effected upon only one of them, such judgment cannot be enforced in the State of New York against one of the members of the firm upon whom process was not served in the action in which it was recovered, even to the extent of the joint property of the firm, even subject to the right of such member not served with the process of the court in which it was recovered to contest the facts or allegations in the declaration upon which the judgment was founded.</p> <p>'The judgment has no force or vigor outside of the jurisdiction of the court in which it was recovered.</p>

Motion by the defendants, Augusta Hirschberg and another, for a new trial on a case containing exceptions, ordered to be heard at the General Term of the Court of Common Pleas for the city and county of Hew York in the first instance upon the verdict of a jury rendered by direction of the court after a trial at a Trial Term of the Court of Common Pleas on the 15th day of May, 1895.

<p>Appeal by J". Willhelmine Hollister and another from an order ■of the Supreme Court, mads at the New York Special Term and ■entered in the office of the clerk of the county of New York on the 11th day of November, 1895, vacating an order entered in the action on July 31, 1895, granting the motion of J. Willhelmine Hollister and Blanche I. Oudlipp to be made parties defendant in the action,1 and denying such motion.</p>

<p>JMemted railroads — evidence of neighbors as to changes in rents is incompetent to prove rental damages — what proof is necessary to establish fee damages.</p> <p>Where an action is brought against the elevated railroad companies of New York city to recover rental and fee damages, the plaintiff cannot make proof of rental damages by showing, by his neighbors, changes which have occurred in the rental values of their premises.</p> <p>In order to recover for damages which have resulted to the fee, the plaintiff must show either a decline in the value of his property after the elevated railroads were built, or that his premises have not shared in the advance of value due to the growth and development of the city, participated in by neighboring property off the line of the elevated railway.</p> <p>Where he does not prove either of these propositions, and the evidence given by the defendants indicates that the fee has not been damaged, it is erroneous to award him fee damages.</p>

<p>Attorney and client — unauthorized appearance—cannot he attacked collaterally — defense of another action pending.</p> <p>The appearance of an attorney, who is claimed to have acted without authority in thus appearing, cannot be attacked in a collateral proceeding.</p> <p>The client’s relief against an unauthorized appearance by an attorney on his behalf exists in a direct application to set-it aside made in the action in which the attorney has appeared.</p> <p>In an action brought to recover damages resulting from an alleged libel the defendant, among other things, pleaded the defense of another action pending in the Superior Court of the city of New York between the same parties and for the same cause of action. Upon this question it appeared that the present plaintiff had consulted an attorney in respect to the libel, but that before such attorney served the summons in the action in the Superior Court, and in July, 1892, she revoked Ms authority, refused to sign a complaint in that action, and asked for his bill; notwithstanding which the complaint in that action was served, and in August, 1892, the defendants therein answered.</p> <p>On October 5, 1892, the present action was commenced in the Supreme Court, and tiie answer, served therein in December, 1892, set up the pendency of the action in the Superior Court.</p> <p>Held, that the defense of another action pending was established;</p> <p>That as the plaintiff knew of the commencement of the action in the Superior Court upon the day after it had been begun, it was her duty to take steps in that action to set aside the unauthorized action of the attorney;</p> <p>That because of her neglect, to do so the defendants were obliged to answer in that action, they having no right to challenge the authority of an attorney who appeared for the plaintiff in an action against them.</p>

Certiorari issued out of the Supreme Court and attested on the 5th day of December, 1895, directed to Edward P. Barker, president, Theodore Sutro and James L. Wells, commissioners, constituting the board of taxes and assessments of the city of New York, commanding them to certify and return to the office of the clerk of the county of New York all the evidence and proceedings concerning the removal and discharge from office of Patrick M. Haverty as a tax assessor of the city…

<p> Sheriffs—liability of the sureties on the bond of a deputy sheriff—duty of the deputy to disclose fully to the sheriff the terms upon which he has accepted a chech in lieu of goods attached. </p> <p>In an action brought by the sheriff of the county of New York against the parties to a bond given by a deputy sheriff, Boday S. Brassel, it appeared that Alfred A. Blair and Albert Hallett procured an attachment against a corporation under which Brassel levied upon certain property alleged to belong to it, which was subsequently claimed by Horace J. Adams; that a stipulation was entered into between Adams and the attorney oí Blair and Hallett by the terms of which a check of Jordan, Marsh & Go. was accepted in place of the property, and it was agreed that the sheriff should hold this check “ as security for the claim of ” Blair and Hallett until final judgment was had in their action; that the sheriff was not informed by his deputy Brassel that the check was to be held “as security for the claim of” the plaintiffs, but was informed by Brussel that it was to stand in lieu of the goods; that the sheriff surrendered the goods to Adams, in whom a sheriff’s jury found the title to such goods to be, that Blair and Hallett recovered judgment against the corporation; that their execution was returned unsatisfied; that Adams sued the sheriff to recover the amount of his check and was successful, and that Blair and Hallett sued the sheriff and recovered of him upon the ground that he had received the check of Jordan, Marsh & Co. as an absolute security for the payment of any judgment which they might recover against the corporation.</p> <p>After payment of the latter judgment hy the sheriff he brought this action upon the bond of Brassel, and sought a recovery upon the ground that Brassel was guilty of a breach of duty, in that he never informed the sheriff that the money received by him upon the check was to be held as security for the attachment of Blair and Hallett, but simply informed him that the check was received in substitution for the goods attached.</p> <p>Held, that the evidence in the case justified the contention of the sheriff that Brassel never informed him that the check was to stand as security; and that, this being so, the deputy sheriff and his sureties were liable upon the bond.</p>

<p>Appeal by the defendant, Nathaniel Jarvis, Jr., from two orders of the Supreme Court, made at the New York Special Term, bearing date, respectively, the 23d and 31st days of December, 1895, and entered in the office of the clerk of the county of New York discontinuing the action.</p>

Appeal by Samuel L. Bronson and another, as executors of the will of Henry Bronson, deceased, and as beneficiaries thereunder, from an order of the Surrogate’s Court of the county of New York, bearing date the 21st day of January, 1896, and entered in said Surrogate’s Court affirming an order, bearing date the 17th day. of January, 1896, and entered in said Surrogate’s Court affirming an appraisement of the property of their testator, claimed to be subject to taxation under…

Appeal by the defendant, Alexander McHeice, from a judgment of the Court of Common Pleas for the city and county of Hew York in favor of the plain tiff, entered in the office of the clerk of said court on the 9th day of January, 1895, upon the report of a referee.

Appeal by the defendant, Charles Phelps, from an interlocutory judgment of the Supreme Court in favor of the. plaintiff, entered in the office of the clerk of the county of New York on the 29th day of January, 1895, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant’s demurrer to the complaint, and also from the order or decision entered in said clerk’s office on the 13th day of December, 1895, upon which said…

Appeal by the defendants, William Daynes and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of December, 1895, denying a motion made by the defendants Daynes and Yan Der Hoogt to consolidate with this action an action pending in the District Court of the city of New York.

Cboss-appeals by the plaintiff and defendants from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 26th day of March, 1895, upon the decision of the court rendered after atrial at the New York Special Term.

Appeal by John Henry Livingston, as executor, etc., of Eugene A. Livingston, deceased, from an order 'of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 8th day of January, 1896, affirming an order entered in said court on the 19th day of November, 1895, assessing a tax upon the estate under the Taxable Transfer Law.

Appeal by the defendant, William Karlsioe, from a judgment: of the Court of General Sessions of the Peace in and for the city and county of New York, rendered on the 20th day of May, 1895, which affirmed a judgment of the Court of Special Sessions adjudging the defendant to he a disorderly person; and from the several •orders made in connection with said judgment, _ whereby said ■ defendant was required to obey said judgment of the Court of Special Sessions, and to execute…

Appeal by the defendants, Frederick J. McGraw and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the '17th day of June, 1895, upon the verdict of a jury rendered after a trial at the New York Circuit; and also from an order hearing date the 14th day of June, 1895, and entered in said clerk’s office denying the defendants’ motion for a new trial made upon the minutes.

<p> Municipal corporations — police commissioners of New York—cannot consider the record of a member unless it has been offered in evidence, nor act in dismissing him upon their own knowledge. </p> <p>The dismissal of a member of the police force of the city of New York is not justified, where it appears that the police commissioners, in reaching a determination, considered not only the testimony in the case but also the record of the member, which was not introduced in evidence upon the trial and as to which the accused had no opportunity for explanation.</p> <p>If the record of the member is to be treated as the knowledge of the commissioners, it is still improper, as they have no right, in discharging a member, to act upon their own knowledge or to supplement the evidence by such knowledge.</p>

Appeal by the defendant, John S. Foster, from an order of the Supreme Court, made at the New York Circuit and entered in the office of the clerk of the county of New York on the ,29th day of April, 1895, setting aside a verdict and granting a new trial in the action on the ground that the verdict was for insufficient damages, and also from an order entered in said clerk’s office on the 6th day •of May, 1895, denying the defendant’s motion for a resettlement of .said order.

Appeal by the defendant, Christian Biersack, from an order of the Supreme Court, made at the Yew York Special Term and entered in the office of the clerk of the county of Yew York on the 29th day of Yovember, 1895, determining that his answer to the complaint was frivolous and directing that the plaintifí have judgment for-the relief demanded in the complaint.

<p>Trustee — costs, how chargeable against the proceeds of sale of land, in which the trust is only interested in part—a claim for commissions after the fund, is distributed, is too late.</p> <p>In an action asking that instructions he given to the plaintiff as to the manner in which he should close up a trust estate created hy the will of Hester G-. Weeden it appeared that the plaintiff had bought a farm to protect the trust estate from loss, to only a portion of the proceeds of which he was entitled as trustee; that by the judgment he was authorized to sell the farm, and distribute the moneys received therefor, and was given costs which were charged upon the premises, and were directed to be paid out of, and retained by the plaintiff from, the proceeds of the sale thereof.</p> <p>The plaintiff distributed the proceeds in such a way that he had left in his hands as trustee under the will a sum of about §6,500, from which he deducted the costs.</p> <p>Held, that the costs were not chargeable against the moneys received by the trust estate upon such sale, but should have been deducted from the general proceeds of the sale; and that the plaintiff was not, as against the trust estate, entitled to be credited with their amount;</p> <p>That the plaintiff as trustee under the will was entitled to commissions only upon the amount in his hands as such trustee, and that he was not entitled to commissions upon the whole amount of the proceeds of the sale of the farm;</p> <p>That if he claimed to have sold the farm as a trustee for all the persons entitled to share in its proceeds he should have claimed commissions in that capacity before he distributed the moneys which he realized from such sale.</p>

<p>Municipal corporations — notice of an intention to sue must be pleaded and must be in wri</p> <p>jWhere an action is brought against a municipal corporation to recover damages resulting from injuries caused by the alleged negligence of the defendant, the filing under chapter 572 of the Laws of 1886 with the counsel to the corporation, within six months after the cause of action accrued, of notice of an intention to commence the action, is a condition precedent, and the fact of the filing must be alleged and proved.</p> <p>The notice contemplated by the statute must be in writing, and an oral notice of such intention is ineffectual.</p>

Appeal by Charles Hertzog and another from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of December, 1895, directing the sheriff of the county of New York to award preference and priority in executing a warrant of attachment issued in the above-entitled action against the defendant, over a warrant of attachment issued in an action in the Superior Court of the city of New…

<p> Partnership—admissions of a deceased partner as to its existence, competent—parol evidence as to the contents of lost hooks of account. </p> <p>Where an action is brought to recover money, alleged to have been loaned to a partnership, the admissions of a deceased person that he was a partner in the firm are competent.</p> <p>Where the loss or disappearance of the books of a partnership is proved, parol evidence is admissible to show the contents of the books, and such evidence may properly be given by a person who kept the books in question.</p>

<p>Municipal corporations — street commissioner of New York — may discharge at pleasure a member of the uniformed force — evidence required—Laws 1882, chap. 410, § 705; 1892, chap. 269, § 7045/ 1888, chap. 119, § 1; 1890, chap. 67; 1892, chap, 577.</p> <p>'The department of street cleaning of the city of New York is a city department, and the commissioner has power to dismiss at his discretion for a violation of duty a member of the uniformed force employed by the department.</p> <p>'The statutory provisions relative to veterans and to persons who have served in the volunteer fire department (Chap. 119 of 1888, as amended by chap. 577 of 1892) preventing their removal from a city position or appointment except for ■cause shown after a hearing had, do not apply to the dismissal by the commissioner of the department of street cleaning of the city of New York of a member of the uniformed force thereof.</p> <p>'The Street Cleaning Act relative to the city of New York (Chap. 269 of 1892) • does not require any particular species of evidence to justify such a dismissal, and it is' only necessary that the evidence be satisfactory to the commissioner.</p>

Appeal by the defendant, Engene Thalmessinger, from a judgment of the Superior Court of the city of New York in favor of the plaintiff, entered upon the decision of the court at a Trial Term, and also from an order denying the defendant’s motion for a new trial made upon the minutes. The action was brought to recover damages for the violation of a contract by the defendant in having discharged the plaintiff from his employ before the expiration of his term.

<p>Appeal by the plaintiff, Henry Wayne Ellis, from a judgment of the Supreme Court in favor of the defendant, entered upon the dismissal of the complaint directed by the court after a trial before the court and a jury.</p> <p>The action was brought upon a written contract, bearing date October 2, 1884, which provided that a play entitled “ Rich and Poor,” written by the plaintiff for the defendant, should he produced by the defendant, at as early a date as reasonably convenient, in the United States, and in as proper a form as was consistent with the necessities of production in a first class theater; that the defendant should pay the plaintiff $100 per week while the play was being played, until he should have paid the sum of $5,000; that the defendant should produce the play continuously, if there was a reasonable success attending its production, for the benefit of plaintiff and the success of the play, in consideration of the plaintiff’s making over to the defendant, his heirs and assigns, all right and title to said play, and that the plaintiff should receive the $5,000 in full for the play and all claims thereon.</p> <p>It was conceded that this contract was made, and that thereafter the play was produced December 22, 1884, at Fall River, Massac chusetts, and December 23, 1884, at New Bedford, Massachusetts, and was never produced thereafter.</p> <p>The plaintiff alleged in his complaint that the defendant violated the contract in that he did not produce the play in as proper form as was consistent with the necessities of production in a first-class theater, and that he did not produce the play continuously; that it was produced without proper rehearsals having been had; that the defendant did not know his part, and was not in a proper condition to play the same, and that he changed the play in important parts to its great detriment, cutting out parts of it and substituting therefor material of his own composition, without the plaintiff’s consent; that there were not sufficient performers in the cast to properly produce the play, and that there was no prompter present to aid its production; and that about January 1, 1885, the defendant notified the plaintiff that he would not again produce the play or carry out the contract.</p> <p>This action was brought to recover $5,000 as damages for the breach of the contract.</p> <p>The defendant denied the allegations of the complaint as to a violation of the contract, and alleged affirmatively that the j>lay met with no success whatever, but proved an absolute failure, and that the defendant discontinued the performance thereof, as he had aright to do under the terms of the contract.</p> <p>The trial was had before the court and a jury. The plaintiff testified that about a week after the production of the play the defendant sent for him and told him that he (the plaintiff) had done his work well, and the play was all right, but that he (the defendant) could not play his part, and that he would not try it again, and that he would try to sell the play. Another witness, Armstrong, testified that he met the defendant shortly after the production of the play, and said to him, “ I hear that you have made a success of Mr. Ellis’ new play,” and the defendant replied, “ Yes, it is a good play, but the play is not in my way.”</p> <p>The defendant testified that he cut out parts of the play, and substituted his own material, and that he did not know his lines perfectly when he produced the play. Another witness, Saulsbury, testified that he was the editor and publisher of a newspaper at Eall Eiver, Mass., when the play was produced there, and that he saw the play produced, having a seat in one of the four front rows of orchestra chairs; that he had been engaged in dramatic criticism. for nearly thirty years, and that during that time he had furnished such criticisms for the press; that he wrote a criticism of this play after it was produced, and published the same in his newspaper in Fall River. He was allowed by the court to testify further, that there was a roughness and want of finish in the' initial performance of the play, and that the defendant forgot his lines several times, and needed considerable prompting, and that there was a fair audience present when the play was presented. He was then asked whether the company gave evidence of having properly rehearsed the play before its production. He was also asked how the play was received by the audience and how the newspapers treated its production, and whether the criticism was favorable or otherwise, and to state the nature of the criticism. He was also asked to state whether the actors were called before the curtain, and how many times, and whether the play was received with applause, and how often.</p> <p>Objection was made on the part of the defendant to the witness answering these questions, but no suggestion was made in any of the objections that the witness was not shown to be an expert with reference to dramatic representations or dramatic criticisms. The court sustained all these objections, and the plaintiff excepted.</p> <p>At the close of the evidence the defendant moved for a dismissal of the complaint on the ground that the $5,000 was only to be paid at a rate of $100 a week, on the condition that the play was a success, and the plaintiff had failed to prove that the play was a success.</p> <p>The court granted this motion and the plaintiff excepted.</p>

Motion by the defendant, Charles E. Tyng, for a new trial upon a case containing exceptions, ordered to be heard at the General Term in the first instance, upon the verdict' of a jury rendered by direction of the court after a trial at the New York Circuit on .the 13th day of May, 1891.

<p>Will—undue influence — entire agreement of witnesses, suspicious — number of witnesses to a will—importuning the testator—Ms nearness to death—hypothetical questions unsatisfactory — admitting improper evidence, not fatal — costs against contestants personally.</p> <p>Where several witnesses are called upon to testify to the same transaction, which occupied considerable time, if they agree as to every detail and tell all that occurred in the same order and in the same words, that fact is in itself a suspicious circumstance.</p> <p>The fact that five witnesses attested a will has no particular bearing upon its; validity, especially where it is shown that on another occasion where the testator himself superintended the execution of a will he procured for it five attesting witnesses.</p> <p>Proof that there were times in the testator’s life when he declared that he would never make a will, is not material where it appears that at other times he stated that he would give his niece the larger part of his estate.</p> <p>Persons who occupy intimate and affectionate relations with an individual have-the right by personal request, fair argument or even decent importunities to-procure a will to be made by him in their favor, provided these importunities, do not proceed so far as to overpower the will of the testator and so substitute-the will of the beneficiary in the place of the testator’s uncontrolled judgment.</p> <p>The same clearness of comprehension and ability of expression which is required to enable a man to enter into a contract need not exist to enable him to make a, will, and the fact that he is, at the time, upon his death bed, cannot, of itself, invalidate his will, provided that, at the time when the will is executed, he-is possessed of sufficient comprehension to enable him to appreciate generally the extent of his property, to remember the persons who are dependent upon him and to decide intelligently as to the propriety of his benefactions to-them.</p> <p>Mere physical weakness at the time when a will was made, followed by death in. about eight hours, does not prove that the mental condition of a testator was-such that he could not make a will.</p> <p>A hypothetical question being necessarily incomplete in its presentation of the-facts, the answer is entitled to considerably less weight than if the witness had been familiar with the precise conditions of the testator, and had given an. opinion based on that knowledge.</p> <p>The decree of a surrogate will not be reversed, for an error in admitting or rejecting evidence, unless it appears that if the rejected evidence had been received the appellant’s case would not have failed, or that, if the admitted evidence had been rejected, the respondent’s case would have been deficient.</p> <p>Where a will is contested the award of costs is made by way of indemnity to the successful party, and when a person tries to get the estate and fails to secure it, it is proper that he should be charged personally -with the costs.</p>

<p>Appeal by the defendants, Henry P. Rogers and others, executors, etc., of Hath aniel P. Rogers, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered upon the verdict of a jury, and also from an order denying their motion for a new trial.</p> <p>The action was brought to recover chattels, commonly known as an action of replevin. The goods were purchased by Sardy, Coles & Co. in Europe, but were consigned to Perry, Rider & Co., custom house brokers in Hew York. After the arrival of the goods in Hew York, and while they were still in the custom house and the duties thereon remained unpaid, and on the 31st day of August, 1891, Sardy, Coles & Co. borrowed from plaintiff $3,000, to be used, among other things, in paying the duties on the goods, and gave their note therefor, payable on demand, which stated that they had deposited the goods with the plaintiff as collateral security for the payment of the note and all other demands unpaid, and that they gave the plaintiff a lien upon the goods for the payment of such note and demands, and authorized the plaintiff on the nonpayment of such note and demands to sell the whole or any part of the goods, and, after deducting the expenses, to apply the proceeds in payment of such note and demands; and Sardy, Coles & Co. at the same time gave the plaintiff a receipt for the goods, agreeing to hold them in trust for the plaintiff and as its property, and to sell the same for its account and hand the proceeds to the plaintiff to apply on the note and demands; and further providing that the plaintiff might at any time cancel this trust and take possession of the goods or the proceeds thereof. Thereafter, and on the 4th day of September, 1891, Sardy, Coles & Co. delivered to Perry, Rider & Co. a check for $1,345.35, with which to pay the duties on the goods, and the duties were thereupon paid and the goods were taken from the custom house and delivered to Sardy, Coles & Co. After the goods had come into the possession of Sard, Coles & Co., and on the 30th day of September, 1891, they executed and delivered to defendant’s testator their indenture bearing date September 23, 1891, whereby, in effect, they stated that they were indebted to such testator in the sum of $25,063.21, giving the terms thereof, and that in consideration of such indebtedness they sold, assigned and transferred to him all their property, real and personal, of every kind, to be by him converted into money and the proceeds thereof applied to the payment of their indebtedness to him and to the payment of debts owing by them to other parties ; and to pay over the balance, if any, to Sardy, Coles & Co. Under this indenture the testator on the same 30th day of September, 1891, took possession of the property therein described, including the goods here in question. On the same day Sardy, Coles & Co. wrote to plaintiff that they had made an assignment of their business to the testator, and thereupon the plaintiff demanded possession of the goods in question at the place of business of Sardy, Coles & Co. from the persons there in charge of the assigned property, and also demanded the goods of the authorized attorneys and agents of the testator at their office. October 3, 1891, the plaintiff caused copies of note, receipt, etc., to be sent to the attorneys for the testator in a letter wherein was stated the nature of the plaintiff’s claim to the goods, and wherein the testator was asked to recognize the plaintiff’s claim and to pay its indebtedness.</p> <p>October 24, 1891, a paper was served by plaintiff canceling the trust and demanding possession of the goods. The goods were not surrendered to plaintiff, hut were inventoried as a part of the assigned property by the testator, and thereafter, and on October 26, 1891, this action was commenced.</p> <p>The testator died April 22, 1892, and his executors were thereafter substituted as defendants in the action.</p> <p>At the time the money was loaned by the plaintiff to Sardy, Coles & Co., and the note and receipt were taken, the goods were not in the possession of Sardy, Coles & Co., but in the custom house subject to a lien for duties. Sardy, Coles & Co. did not have the bills of lading even. Perry, Rider & Co. were consignees and held the bills of lading. They did not then or for some days thereafter transfer the bills of lading to any one. The plaintiff never had actual possession of the goods, nor did it ever have any transfer of the bills of lading. The plaintiff, never canceled the trust agreement or demanded the possession of the goods until after the assignment was executed and delivered to defendants’ testator, and he had actually taken the goods into his possession thereunder.</p> <p>On the trial the defendants moved for a dismissal of the complaint on the ground among others, that the plaintiff had failed to show any title to, or possession or right to possession of, the goods. The court denied this motion, and held as a matter of law that plaintiff’s title and right to possession of the goods covered by the trust agreement (so called) was conclusively established, and that the only question for the jury was whether the goods taken by the sheriff in this action were the same as those covered by the trust agreement; to all of which the defendants excepted. The jury rendered a verdict for the plaintiff, and from the judgment entered on such verdict this appeal is taken.</p>