Volume 1 — New York Supplement

<p>Mortgages—Foreclosure against Infant Mortgagor—Failure to Make Personal Service of Process.</p> <p>Where a wife under age joins with her husband in a mortgage, and, in the foreclosure following, subpoena is left with him to give to her, which he does not do, and the property is sold by the master, and his deed recorded before the wife has attained majority, she is not barred of her right of dower by joining in the mortgage and the judgment of foreclosure against her is void for want of jurisdiction.</p>

James A. Fatteson brought suit against Amelia M. Graham, formerly A. M. Whittock, to recover for money loaned. Trial before a referee, and judgment for plaintiff on his report, from which the defendant appealed.

<p>Injunction—To Restrain Obstruction op Wat—When Lies.</p> <p>®Under a deed reserving a right of way over a carriage or alley way in the rear of the premises granted, the grantor does not retain a right to an alley-way 18 feet wide so as to restrain the grantee from occupying a portion of it with a building, where it does not appear that his means of access will be thereby impeded.</p>

Action brought by Daniel J. Hoyes against Theresa A. Anderson and others to foreclose a mortgage. On trial it appeared that the mortgage was past due; that the plaintiff had agreed not to foreclose the mortgage during the life of the defendant, so long as the interest on it and the prior mortgages was promptly paid, and no taxes or assessments were allowed to remain unpaid more than 30 days.

Proceedings for contempt of court. Section 8, Code Civil Proc., referred to in the opinion, is as follows: “A court of record has power to punish, for a criminal contempt, a person guilty of either of the following acts, and no others: (1) Disorderly, contemptuous, or insolent behavior, committed during its sitting, or in its immediate view and presence, and directly tending to interrupt its proceedings, or to impair the respect due its authority.

<p>Appeal from judgment upon report of referee.</p> <p>Appeal from a judgment in favor of the plaintiff, Samuel D. Coykendall, entered in Ulster county upon the report of a referee. The action was upon a joint and several promissory note, dated January 20, 1874, for the payment of SI,000, with interest, to Carl Peters or bearer, one day after date, signed by the defendants. The defendant De Garmo was the principal debtor, and the other defendants his sureties. The case has been twice tried. Upon the former trial the question was whether the plaintiff bought the note or paid it. The facts bearing upon that issue are stated in the report of the case upon appeal. 99 H. T. 309, 1 H. E. Rep. 884. The question upon this trial was whether the sureties had been discharged by the delay to prosecute the maker after sufficient notice from the sureties.</p>

<p>Chattel Mortgages—Foreclosure—Right oe Mortgagee to Purchase.</p> <p>A mortgagee of chattels may purchase the chattels when sold under the mortgage, the sale being made with due notice after default.</p>

<p>Appeal from circuit court, St. Lawrence county.</p> <p>Judgment was entered, upon the verdict of a jury directed by the court, in favor of plaintiff, Joseph E. McAllaster, against Luman Bailey and Lorenzo Smith. Defendants appeal.</p>

Appeal by Meyer Jackson from an order at special term vacating a judgment directed against Morris J. Jackson at a trial term of this court.

An order of arrest was granted in above action on June 12, 1888. The affidavit upon which the same was granted, was properly entitled in the action; was sworn to before a notary public, in Hew York county, on June 12,1888. There was, however, no venue to the affidavit. An undertaking on order of arrest was presented at the time of granting the order.

This action was brought to recover for salary of the plaintiff, under an alleged agreement of hiring of plaintiff as assistant superintendent of defendant of its oil refinery at Brooklyn, N. Y., made by the plaintiff with J. C. Eastman, t-he superintendent of the defendant, for a period of one year from June 6, 1887, at the salary of $1,200 per annum, payable monthly. Plaintiff rendered services under such agreement until November 3, 1887.

In the matter of the final accounting of Robert C. Beeves, executor, etc., of the estate of Abraham Denike, deceased. Appeal by the executor from the summons or direction of the surrogate requiring him to appear and submit to a cross-examination as to the items of his bill of costs.

<p>Appeal from special term, Warren county.</p> <p>Action between the parties to determine which of them was entitled to the amount of a non-negotiable note which the maker had paid into court. E. Putnam had possession of a coach belonging to the Glens Falls & Lake George Stage Company. The defendant, Thompson, was the principal stockholder of this company, holding all its stock, except possibly two shares, which one Whitman on the trial claimed to own; but whether he did or not was not clearly shown. Putnam, by the employment of the defendant, had been the general manager of the company. It operated a line of stages between Glens Falls and Lake George. Upon the opening of the railroad between these places, in 1882, the company ceased its regular business, and Putnam, upon the direction of the defendant, undertook to sell its property and account to the defendant. In October, 1884, he sold the coach referred to to one Kellogg for $500, and took his note therefor, as follows: “Glens Falls, October 18, 1884. Six months after date, for value received, I promise to pay E. Putnam, agent for E. Thompson, five hundred dollars, with interest. Orlando Kellogg.” On December 1, 1884, E. Putnam bought of the plaintiff a coach, horses, and harness for $600, and gave him in payment the above note and $100 in money. It appears that plaintiff had a contract to carry the mail to and from Glens Falls and Fort Edward, and, as a part of the transaction, Putnam, describing himself as “E.Putnam, agent,” agreed, in an instrument under seal, to perform this service for the compensation stipulated in the contract between the plaintiff and the United States. The defendant, Thompson, knew nothing of the sale of the coach to Kellogg, or of the taking of the note and its transfer, by Putnam, until afterwards; and then he ratified the taking of the note, but repudiated the transfer to plaintiff. The plaintiff sued Kellogg upon the note. Kellogg thereupon paid the money into court, and Thompson was substituted as a defendant.</p>

<p>On petition for the probate of John McNeil’s will.</p>

<p>1. Damages—Accrual after Action Brought—Allowance in Equitable Action— Denial of Injunction..</p> <p>In an equitable action to restrain the continuance of a nuisance, and also for damages, where the injunction is denied, but continuing damages are shown, plaintiffs are not limited to a recovery of the damages sustained up to the time of the commencement of the action, but they may recover the full amount up to the time of trial, as a court of equity will award all the relief that the nature of the case demands.1</p> <p>1 Respecting the rule as to damages in an action at law, see Sloggy v. Dilworth, (Minn.) 36 N. W. Rep. 451, and note.</p> <p>2. Nuisance—Abatement—Injuries Caused bt Lawful Business.</p> <p>It is no defense to an action to abate a nuisance that the nuisance complained of was a business lawful in itself, and carried on by defendant with all proper care, where it appears that plaintiffs must necessarily sustain injury therefrom.</p>

<p>1. Municipal Corporations—Actions against, for Injuries—Pleading—Complaint.</p> <p>Under a city charter providing that “no action shall he maintained against the city "* * * for injuries, * * * unless it appear that the claim * * * was presented to the comptroller, * * * and that the said comptroller did not, within 60 days thereafter, audit the same, ”a complaint stating that plaintiff “has duly and properly, as required by law, presented his claim * * * to the defendant, [not comptroller,] and the defendant has hitherto neglected and refused to audit the same, ” will be considered sufficient after trial, in which no one has been misled by the defective pleading.</p> <p>2. Same—Action against, for Personal Injuries —Evidence —Obstruction of Street by Building Material.</p> <p>Inan action against a city for injuries sustained by driving at night against building material left in the street, a question whether it was not placed as such material is usually placed is properly excluded, especially as it calls for an opinion, and not for facts.1</p> <p>1 Where all the facts can be adequately exhibited to the jury, and the subject under investigation does not require special skill and knowledge, the opinions of witnesses will not be admitted in evidence. Turnpike Road v. Leonhardt, (Md.) o Atl. Rep. 346; Mann v. State, (Fla.) 3 South. Rep. 207; Hurt v. Railway Co., (Mo.) 7 S. W. Rep. 1; Railroad Co. v. Fox, (Tex.) 6 S. W. Rep. 569.</p> <p>3. Same—Actions against, for Personal Injuries—Evidence—Injuries to Others from Same Cause.</p> <p>In an action against a city for injuries sustained by driving at night against building material piled in the street, it is proper for a witness to testify that he drove his wagon over the pile the night before, and one of his passengers was thrown out.2</p> <p>2 See, contra, note to Cook v. Durham, (N. H.) 13 Atl. Rep. 650.</p> <p>4. Same—Liability for Injuries—Presenting Claim to Auditor.</p> <p>Under a city charter requiring that all claims against the city for injuries shall be presented to the comptroller, duly verified, it is sufficient, in the absence of objection, if the original claim, signed and verified, is shown to the comptroller, and a copy left with him.</p> <p>5. Same—Dangerous Condition of Streets—Notice to City.</p> <p>Though a city giving license to a builder to pile building material in the street is entitled to notice of danger therefrom to passers-by, such notice is implied by the open and continuous neglect of the builder; and the fact of this notice, if in doubt, is to be left to the jury.3</p> <p>3 On the subject of constructive notice, see Springer v. City of Philadelphia, (Pa.) 12 Atl. Rep. 490, and note.</p> <p>6. Evidence—Testimony of Physician—Injuries Likely to Shorten Life.</p> <p>Testimony of a physician, after he has stated plaintiff’s injuries to be, in his opinion, permanent, and likely to shorten plaintiff’s life, that such injuries are often likely to shorten life, is not improper.</p> <p>7. Trial—Instructions—Influencing Jury—Discretion of Trial Court.</p> <p>In an action for damages, against a city, a charge by the court, who has been deprecating the excess of partisan zeal displayed, that “I may here remark that, as a citizen, if the jury award to this plaintiff a verdict; the court, like the counsel, will be called upon to pay its share of the verdict, and I shall never, gentlemen, be found turning my back upon a tax which is the result of substantial justice.— never, ”—is not an abuse of the discretion which the court may exercise in influencing the jury.</p> <p>8. Appeal—Review—Discretion of Trial Court—Acceptance of Juror.</p> <p>Acceptance by the court of a juror who testifies that he is not certain, but thinks he is 62 years old, because he has been married 38 years, against defendant’s challenge on the ground that he is over 60 years of age, is not cause for reversal.</p>

<p>Appeal from special term.</p> <p>Proceeding by James Gordon Bennett to compel Thomas W. Pittman to pay over moneys received by him as attorney for petitioner.</p>

<p>1. Tbespass—On Land—Cutting Ioe—Measube of Damages.</p> <p>In an action for damages for a wrongfully entering upon plaintiff’s lands, and cutting and removing ice therefrom, plaintiff can recover only for the injury occasioned thereby to her real estate, and not for taking such ice.</p> <p>2. Same—Evidence.</p> <p>In an action to recover damages for cutting and removing ice from plaintiff’s land, the market value of harvested ice does not furnish a proper criterion for determining the value of unharvested ice which has no market value.</p>

<p>Appeal from circuit court.</p> <p>This action was brought by Mary Dowd and Charles Grady against the American Fire Insurance Company of Philadelphia on a fire insurance policy. There was a condition in the policy that if the property to be insured were a leasehold, etc., or if the building stood on leased ground, it must be so represented to the company, otherwise the insurance as to such property should be void. The property insured for plaintiffs was destroyed by fire. Their only title, at the time of the issuing of the policy and at the time of the fire, was a perpetual lease, with rent and the right of re-entry reserved to the lessor. Plaintiffs recovered judgment, which was reversed on former appeal. 41 Hun, 139. This appeal is brought by plaintiffs from a judgment for defendant at the circuit before the court without a jury.</p>

<p>Negotiable Instruments—Consideration—Execution of Note as Agent fob Decedent’s Estate—Personal Liability of Maker.</p> <p>Where it appears that defendant in an action on a promissory note had signed the note for the purpose of renewing an' old note held by plaintiffs against the estate of defendant’s deceased father, simply as agent of such estate, under an agreement that the old note should be delivered up, which has not been done, and there is nothing to show that plaintiffs parted with anything of value, or that defendant has received or will receive anything from such estate, such defendant may, for the purpose of proving a want of consideration, show that he was an accommodation maker, and was not to be held personally liable.1</p> <p>1 That want of consideration constitutes a good defense to an action on a promissory note between the original parties, see Braly v. Henry, (Cal.) 12 Pac. Rep. 623, and note.</p>

<p>On motion to dismiss complaint.</p> <p>Action by the Congregation ICal Israel Anschi Poland, a religious corporation, against the city of New York, to remove, as clouds upon its title, certain taxes imposed by the city upon its property. Laws N. Y. 1882, e. 410, consolidates into one act the special and local laws affecting public interest in the city of New York.</p>

<p>1. Partnership—Dissolution — Agreement that One Partner shall Wind Up Business—Power to Discharge Mortgage.</p> <p>A partner to whom, by agreement upon dissolution, is given power to use the firm name, and sign in liquidation of the firm business, and who has given bond to account for money coming into his hands in settling up the business, is authorized to discharge a mortgage received, held,' and considered as partnership property.</p> <p>2. Mortgages—Payment—Agreement to Release—Effect of Subsequent Release.</p> <p>'Where a mortgage is paid, and agreement is made to discharge the same of record, the instrument of discharge, executed a few days afterwards, and after commencement of suit to foreclose, takes effect from the time of the agreement.</p> <p>3. Same—Bonus for Extension of—Usury.</p> <p>A bonus which is in excess of the legal rate of interest, paid for the extension of a mortgage, is usurious, and should be aj>plied towards satisfaction of the mortgage upon final settlement.</p> <p>4. Same—Foreclosure—Overpayment by One of Several Mortgagors—Right to Reimbursement.</p> <p>In a foreclosure suit, wherein one of the mortgagees, who has executed a discharge, is made defendant, judgment adjusting the rights of the parties, and directing payment to one of the mortgagors of a balance overpaid by her, is authorized by Code Civil Proc. N. Y. § 120Í¡ providing that “judgment may be given for or against one or more plaintiffs, and for or against one or more defendants; it may determine the ultimate rights of the parties on the same side, as between themselves ; and it may grant to a defendant any affirmative relief to which he is entitled. ”</p>

<p>Appeal from circuit court, Essex county.</p> <p>Action of trespass by the Ausable Company against Seth Hargraves. Judgment for plaintiff, and defendant appeals.</p>

<p>At chambers. On motion for injunction.</p>

<p>Collision—JTnusual Lights—Conflicting Evidence—Appeal.</p> <p>In an action for damages caused by a collision of vessels, where the evidence shows; that defendant’s vessel displayed unusual lights, which misled the pilot on plaintiffs’ boat, and the testimony on either side regarding the occurrences immediately before the collision is in direct conflict upon material matters, the verdict of the jury, whose determination rested upon a consideration of the conduct of the vessels at and before the collision, will not be disturbed.</p>

John W. Stearns instituted against his tenants, John Hemmens and another, summary proceedings for possession of the leased premises, on the ground that the tenants kept a gambling-house thereon. Defendants appeal from a judgment for plaintiff.

At chambers. On motion to vacate an order. Motion by the Rhode Island National Bank to vacate an order made in supplementary proceedings in aid of an execution issued upon a judgment obtained by the Columbia Bank against Lorin Ingersoll. The Rhode Island National Bank, a judgment creditor of Ingersoll, in supplementary proceedings, procured the appointment of a receiver of the judgment debtor’s property. The order appointing the receiver was made April 24,1888.

Action brought by Mary Harrigan against the village of Hoosick Falls for injuries sustained by falling on an icy sidewalk. Verdict and judgment for plaintiff, and defendant appeals.

<p>1. Negotiable Instruments—Procurement by Fraud—Question for the Jury.</p> <p>Where there is evidence in an action on a note that the payee induced defendant to give it for an interest in a patent-right, to represent the interest of a partnership composed of himself and defendant, and told him that it would not he transferred or presented for payment, and afterwards, in defendant’s presence, pretended to burn it, it is a question for the jury to say whether the note was procured through fraud.</p> <p>2. Same—Actions on—Bona Fide Purchaser.</p> <p>In an action on a note defendant alleged that it was obtained through fraud. Plaintiff claimed to have acquired it from a bona fide purchaser. There was some evidence from which if could be inferred that the purchaser was acting as agent of plaintiff in buying the note. Meld, that the question of agency should have been submitted to the jury.</p> <p>3. Same—Actions on—Usury—Evidence.</p> <p>In an action on a note aUeged to have been procured through fraud it appeared that the payee pretended to burn it in the presence of defendant, but afterwards transferred it for one-half its face value. Meld, that the defense of usury was not sustained where the only evidence thereof was a grave suspicion that the note had its inception at the time of the transfer.</p> <p>4. Same—Note Given for Patent-Right—Bona Fide Purchasers.</p> <p>Under Laws N. Y 1877, c. 65, providing that a note given for a patent-right shall be void unless there is written across its face, “Given for a patent-right, ” such a note without those words is valid in the hands of a bona fide purchaser.</p>

<p>Statutes—Reveal—Provisions Omitted from Amended Act—New York City Consolidation Act, § 1938.</p> <p>The consolidation act of New York city of 1883, §1938, making it a misdemeanor to use salt or saltpeter to dissolve ice and snow oil the public streets of said city, is not repealed by the amendment to the Penal Code, passed in 1885, § 661, omitting that offense from the general laws of the state.</p>

<p>Appeal from circuit court, Sullivan county.</p> <p>Action brought by Maria Carley against the New York, Ontario &'Western Railway Company for damages caused by burning plaintiff’s woods, alleged to have been set on fire by sparks thrown from defendant’s locomotive. Verdict and judgment for plaintiff; from which, and an order denying a motion for a new trial, defendant appealed. Section 1003, Code Civil Proc. N. Y., provides “that an error in the admission or exclusion of evidence, or in any other ruling or direction of the judge on the trial, may, in the discretion of the court which reviews it, be disregarded, if that court is of opinion that substantial justice does not require that a new trial should be granted.”</p>

Action by William II. Morrell against the Long Island Railroad Company for breach of an oral contract. Defendants appeal from a judgment for plaintiff and from an order denying a motion for a new trial.

This action was originally brought by Hamilton W. Shipman against William H. Scott, to recover the sum of $710, as commissions upon the sale of certain real estate belonging to him. Subsequently, by an order of inter-pleader, Theodore W. Freeh was substituted as defendant, and the money deposited in court, Mr. Freeh also having laid claim to such commissions. Scott placed certain lots, of which he was joint owner with one Sterne, in the hands of Shipman for sale.

This action was brought by Francis Cronin and another against Simon Epstein for rent of premises for the month of May, 1887, under a sealed lease by the plaintiff to the firm of Kantrowitz & Epstein, for a term of years, beginning May 1st, the rent payable monthly in advance.

Action brought by John A. IC. Duval, assignee of Mrs. B. Guión, against H. B. Wellman, to recover money paid defendant by Mrs. Guión for the purpose of procuring her a husband. The trial judge directed a verdict for the defendant, and the city court, at a general term, overruled his order denying plaintiff’s motion for a new trial, from which decision the defendant appealed.

Action brought by Rena Mentz against Nathan Newwitter, to recover the difference between the amount bid by defendant for certain property, and the amount realized on a resale. The defendant set up the statute of frauds. The ease was tried before a referee, who reported in favor of the plaintiff, and from the judgment entered thereon the defendant appealed.

Action brought by Robert Goefet and others to restrain the Metropolitan Transit Company from constructing an extension of its line in front of plaintiffs’ premises. The demurrer to plaintiffs’ complaint was sustained, and plaintiffs appealed.

Ejectment, brought by Helen A. Silliman against John W. Paine et al., for a strip of land four and one-half inches wide, and twenty-eight feet long. The parties owned adjoining lots situated on the westerly side of Congress street, in the city of Troy, bounded in front by that street, and in the rear by an alley. In 1864, on the rear of these lots, stood two barns, side by side, with a space of about a foot between them.

<p>At chambers. On petition to vacate an assessment.</p> <p>Cliauncey M. Brainerd filed his petition to vacate an assessment levied for the construction of a sewer, on the ground that such sewer was of no benefit to petitioner’s property, and for errors in the proceeding.</p>

On exceptions from circuit court. Action by the Delaware & Hudson Canal Company to restrain the collection of a tax. Plaintiff appeals from a judgment for defendant.

<p>Appeal from circuit court, Washington county.</p> <p>Appeal from a judgment in favor of the plaintiff entered upon a verdict at the Washington circuit; also from the order denying motion for a new trial upon the minutes. The action was to recover for injuries sustained by the plaintiff in consequence of falling upon the ice upon the sidewalk upon Main street, in the village of Fort Edward, on the 23d day of January, 1885. The evidence tended to show that the sidewalk at the place in question was, and had been for many days previous to the accident, in a very dangerous condition.</p>

This is an action brought by a simple contract creditor of John McDonnell, deceased, against his administrators for the purpose of declaring fraudulent, as against creditors, a certain conveyance of real estate, made by McDonnell in his life-time to one O’Brien, and a conveyance of the same made by O’Brien to said defendant McDonnell; also to recover from said Lucy McDonnell certain life insurance premiums paid by said McDonnell in his life-time on policies upon his life,…

Action brought by Electa Gallery against Sarah B. Miller to set aside a deed given by Henry Ingram to defendant. Judgment was entered in favor of the plaintiff, by direction of the court, after trial of the issues by the jury, and the defendant appealed.

<p>1. Banks and Banking—Collections—Agbeement not to Dbaw on, until Notice of Payment—Failube of Bank—Rights of Depositob.</p> <p>A depositor, on opening his account, agreed with the bank not to draw on out of town paper deposited by him until the bank should hear of its collection. The bank received and sent the depositor’s out of town draft to its agent, but failed before receiving notice of its collection, although it had been paid to the agent. The agent, on the bank’s order, without knowing of the .depositor’s rights, in good faith paid part of the proceeds of the draft to third parties. Held that, since the bank never acquired title to the draft or its proceeds as against the depositor, the depositor could recover of the agent the proceeds of the draft remaining in his hands.</p> <p>3. Same — Fraudulent Receipt oe Paper eor Collection by Insolvent Bank — Rights oe Depositor.</p> <p>In such case the bank fraudulently received and forwarded for collection the depositor’s out of town draft, but failed before receiving notice that it had been paid. The depositor, without knowledge of the fraud, proved his claim against the bank, and received a dividend thereon; but on discovering the fraud he repudiated the proof of claim so far as it included the draft. Held, that the depositor did not thereby lose the right to the draft or its proceeds in the hands of the bank’s agent.</p>

<p>Appeal from surrogate’s court.</p> <p>Appeal from the decree of the surrogate admitting to probate the last will and testament of Emilie Weil. Meyer Oppenheimer and Baer Oppenheimer, contestants.</p>

<p>At chambers. On application for an order against the mayor, aldermen, and commonalty of New York city.</p>

Action brought by Thomas J. Clute against William Gr. McCrea on a contract to pay a sum of money. Defendant pleaded by way of recoupment that he “had loaned and advanced to plaintiff, at his request, divers sums of money, * * * which he promised to pay or apply as defendant might direct, no part of which had been repaid.” To this plea, plaintiff demurred. The supreme court at special term sustained the demurrer, and defendant appealed.

Action brought by Michael Lennon against Mary F. C. Smith to foreclose a mechanic’s lien. Defendant set up failure to perform contract, and damages resulting therefrom. The case was tried before a referee, who found for the defendant, and from the judgment entered on his report plaintiff, appealed.

Mullen, referee. Action brought by John H. Van Clief and William S. Van Clief against Hannah R. Van Vechten, George. L. Smalle, Elwood H. Newman and others, to foreclose a lien for materials furnished Smalle and Newman, and used by them in constructing a house for defendant Van Vechten. The ease was tried before a referee, who found for the defendant Van Vechten, and from the judgment entered on his findings the plaintiffs appealed.

This action is brought by Edward H. Coffin and Howard S. Jones against Asa W. Parker, Sophie G. Parker, his wife, Josiah S. Packard, Ralph G. Packard, Maria A. Mahen, Maria B. Pundt, and others, to determine the amount due on a blanket mortgage covering 14 separate houses and lots owned by different persons, to apportion the same upon the lots according to value, and to allow plaintiffs,, who are owners of one lot, and such of the defendants as are owners of other lots who…

<p>Appeal from special term, Westchester county; Dyeman, Justice.</p> <p>In an action by John L. Jerome against Wilbur W. Flagg, plaintiff obtained an order for the service of summons on defendant by publication on an affidavit,one portion of which was as follows: “(2) That the defendant, Wilbur W. Flagg, * * * is not a resident of the state of New York, but now resides in the city of Denver, in the state of Colorado, which Is his post-office address. That his place of business is No. 19 Times Building, city of Denver, in the state of Colorado, that said defendant cannot, with due diligence, be served personally within the state of New York, as he is now, and has been for some time, a resident of the city of Denver.” Defendant moved to set aside this order and the service thereunder, on the ground of non-compliance with Code Civil Proc. § 439, which provides “that the order must be founded upon a verified complaint; * * * and proof by affidavit of the additional facts required by the last section; * * * and also where the application is made upon the ground that the defendant is a foreign corporation, nr not a resident of the state; * * * that the plaintiff has been or may be unable, with due diligence, to make personal service.” From the order ■denying this motion defendant appealed.</p>

Action by William R. Vines against Alexander Chisolm for damages for a-fraudulent sale by defendant to plaintiff of worthless mining stocks. Judgment for plaintiff, and defendant appeals.

This is an appeal from certain portions of a decree of the surrogate of King’s county, judicially settling the account of Caroline E. Crossman and Samuel Burhaus as surviving executors of Henry Crossman, deceased. Appeal from the decree was taken by William H. Crossman, George W. Grossman, Jane A. Jackson, Harriet A. Hartman, ElizabathB. Westphal, Jane T. MacCarthy, and Henry C. Barnet. 1 Bev.

Action by James D. Fessenden, as ancillary administrator of Thomas W. Hillman, deceased, against Alvah S. Blanchard, James E. Ward, William H. T. Hughes, and Henry P. Booth, to recover two-sixteenths of the amount collected by the defendants other than Blanchard, as his assignees of a claim against the Spanish government for illegal seizure of a bark belonging to Blanchard, .a two-sixteenth interest in which, it was alleged, he had sold to Killman.

On motion to dissolve an injunction. The opinion in this case having never been published, and being referred to in Smith v. Berndt, post,. 108, it is printed here to supplement the latter case.

At chambers. On motion to continue an injunction. Andrew J. Smith, executor, etc., of A. McSmith, deceased, brought this action to enjoin Louis Berndt and Erastus Geer from using or landing with their boats at the Sea Cliff dock, alleging that, as executor, he was the lessee of said dock.

<p>Executors and Administrators — Probate Practice — Surrogate’s Control over Securities in Executor’s Hands.</p> <p>Where it appears on an intermediate accounting by an executor that the securities belonging to the estate are not safe in the executor’s hands, the surrogate will direct the executor to deposit themwitha trust company, subject to the order of the court.</p>

On motion for the appointment of a temporary receiver. Action by George Jelly against the Paraiso Reduction Company, a domestic corporation, to sequestrate the corporation property. Plaintiff’s judgment was recovered in the court of common pleas for the city and county of Hew York. Laws H. Y. 1880, c. 245, provides for the appointment of receivers for corporation property, in sequestration proceedings, by any competent court.

Cullen, Justice. Action brought by Samuel G. Brush against Charlotte Hoar, administratrix of William A. Hoar, deceased, on a judgment recovered in 1870, in the supreme court for Kings county, against said Hoar in his life-time. Defendant pleaded the statute of limitations. Trial before the court, who found for the plaintiff, and from the judgment entered thereon the defendant appealed. Section 376, Code Civil Proc.

On certiorari to review an assessment for purposes of taxation. The respondents, tax commissioners for the city and county of New York, appeal from an order for a reference to take proofs and return them to the court, and for a stay of proceedings.

Petition of the Metropolitan Transit Company of the city of Hew York to determine the amount of compensation to be paid to the mayor, aldermen, and commonalty of the city of Hew York.

<p>Trust—Limitation of Trust-Estate—Death of Cestui Que Trust—Accumulation of Trust Fund.</p> <p>A deed, executed as one of a series creating trusts for the benefit of the grantor’s lineal descendants, conveyed real estate to the grantee as trustee for two of his grandchildren, to hold the property, “ so that, by means of these presents, the said party of the third part now is vested with a future estate in fee-simple, in expectancy, to commence in possession ” on the death of the grantor, in trust to apply the-rents and profits equally to the use of the grandchildren during life; and, when either of them attains the age of 21 years, to pay to him absolutely the accumulations of his share of the rents and profits; and, on his attaining the age of 80 years, one-half of the land, and of any additions to the trust fund, to be conveyed to him. If either of them die before attaining that age, his share was to be conveyed to his. children, if he left any; and, if he left none, to his brother. One of the grandchildren died before either of them attained the age of 31 years. Held, that his share of the accumulation, and the legal title to his share of the land, vested in his brother subject to the trust.</p>

The following will, dated September 11, 1885, of Alfred F. Dunham was offered for probate by Mary Nolte: “In the name of God, Amen. I, Alfred F. Dunham, of the city of Brooklyn, now being of sound and disposing mind and memory, and considering the uncertainty of this life, do make, publish, and declare this to be my last will and testament, as follows: First.

Three separate actions brought by James C. Jewett, Mary J. Hussey, and the Atlantic Avenue Bailroad Company to restrain the Union Elevated Bail-road Company from entering upon and appropriating the plaintiff’s property on Fifth avenue, in the city of Brooklyn, to the uses of its road, without acquiring said property in the manner prescribed bylaw, or compensating plaintiffs therefor. Judgment for plaintiffs restraining such appropriation, and defendant appeals.

<p>1. Railbokd Companies—Injuries to Persons on Track—Contributory Negligence.</p> <p>In an action against a railroad company for negligently killing plaintiff's intestate, it appeared that at the time of the accident deceased was walking on a section of defendant’s track, huilt over low, marshy ground, on each side of which there was a ditch filled with water; that there was no way of getting off the track except hy jumping into or across the ditch; that, when deceased first saw the engine of defendant, it was about 922 feet behind him, and he was about ISO feet from-a platform, where he could get off the track; that the engineer well knew the difficulty deceased would have in getting off the track at that place; andthathe was running at such a speed that, by reversing his engine, he could have avoided running him down. Meld that, under all the circumstances, it was a question for the jury to determine what decedent ought to have done to avoid the injury, and whether or not he was guilty of contributory negligence.</p> <p>2. Same—Injuries to Persons on Track—Contributory Negligence—Evidence.</p> <p>In an action against a railroad company for negligently killing plaintiff’s husband while she and deceased were walking on defendant’s track, plaintiff may properly be allowed to testify that she was ill at the time, as explaining the conduct of deceased in his care for her on the occasion.</p> <p>3. Same—Injuries to Persons on Track—Negligence—Evidence.</p> <p>In an action against arailroad companyfor negligently killing plaintiff’s intestate while walking on defendant’s track, the conduct of defendant’s engineer upon the occasion being in issue, it is not error to permit an expert engineer to testify as to the effect of shutting off steam when deceased was first discovered; such evidence being followed by an instruction that if defendant’s engineer, as soon as he had reason to believe that deceased was in a place of danger, took all means in his power to prevent the accident, that would be a discharge of his duty.</p> <p>4. Same—Injuries to Persons on Track—Duty of Company to Trespassers.</p> <p>A railroad company must exercise ordinary diligence and care to avoid injury to a trespasser upon its track.1</p> <p>1 One who goes upon a railroad track without license of the company is a trespasser, and guilty of such contributory negligence as will defeat recovery for injuries received through the negligence of employes of the company in failing to discover him. The company is only liable for the wanton conduct or reckless carelessness of. its servants alter the situation of the trespasser is perceived. Railroad Co. v. Monday. (Ark.) 4 S. W. Rep. 782; Bouwmeester°v. Railroad Co., (Mich.) 34 N. W. Rep. 414. See Railroad Co. v. Smith, (Ga.) 3 S. E. Rep. 897; Masser v. Railroad Co., (Iowa,) 27 N. W. Rep. 776, and note; Scheffler v. Railway Co., (Minn.) 21 N. W. Rep. 711; May v. Banking Co., (Ga.) 4 S. E. Rep. 330; Nichols’ Adm’r v. Railroad Co., (Ky.) 6 S. W. Rep. 339; Kennedy v. Railroad Co. (Colo.) 16 Pac. Rep. 210; Railroad Co. v. Colman’s Adm’r, (Ky.) 6 S. W. Rep. 438; Strong v. Railroad Co., (Miss.) 3 South. Rep. 465; Railway Co. v. Ryon, (Tex.) 7 S. W. Rep. 687.</p> <p>5. Same—Injuries to Persons on Track—Evidence—Opinion—Pact por the Jury.</p> <p>In an action against a railroad company for negligently killing plaintiff’s intestate while he was walking on defendant’s track, the difficulty of getting off the track at the place where the accident occurred being in issue, a statement by a witness that there was no difficulty iu getting off the track at that place is properly rejected, as the question was one to be determined by the jury upon the facts proved.2</p> <p>2 Where all the facts can be adequately exhibited to the jury, and the subject under examination does not require special skill and knowledge, opinions of witnesses will not be admitted in evidence. Turnpike Co. v. Leonhardt, (Ind.) 5 Atl. Rep. 346; Mann v. State, (Pia.) 3 South. Rep. 207; Hurt v. Railway Co., (Mo.) 7 S. W. Rep. 1; Railroad Co. v. Pox, (Tex.) 6 S. W. Rep„569.</p> <p>6. Witness—Examination—Refusal to Allow Questions to be Repeated.</p> <p>A refusal to allow a party to repeat a question that has already been answered, is not error.</p>

Adelaide L. Douglass applied for an order directing the board of supervisors to strike from the assessment roll an assessment against the relator as guardian, etc. The court refused the order, and the relator appeals. Laws H. Y. 1869, e. 855, § 5, as amended by Laws 1871, c. 695, authorizes county courts to order illegal taxes refunded, etc.

<p>Appeal from surrogate’s court, Hew York county.</p>

Action brought by John H. Riker, as sole surviving executor of the will of Sampson Simson, against Sampson Simson Leo and the North American Relief Society for the Indigent Jews of Jerusalem, Palestine, to construe a will, and determine to whom he should pay a certain legacy. The court found in favor of the North American Relief Society, and from the judgment entered thereon, Sampson Simson Leo appealed.

<p>Exeoutobs and Administbatobs—Action fob Money Loaned by Decedent—Sufficiency of Evidence to Suppoet Claims.</p> <p>In an action by an administrator for money alleged to have been loaned defendant by his deceased brother, there was evidence that defendant had said that his brother’s money was in a house he was building, and it appeared that deceased had $1,500 in a bank, which he drew out shortly before his death; that the deceased lived with defendant, who turned over to the administrator only a few personal effects. Held, that the evidence did not show that deceased loaned any money to the defendant. Babtlett, J., dissenting.</p>

<p>Appeal from circuit court, Yew York county.</p> <p>Action on covenant, by Sarah Charlotte Clark against Moses Devoe. Verdict and judgment for plaintiff, and defendant appeals.</p>

George J. Seabury, impleaded with one Johnson, was at special term adjudged guilty of contempt of court. From the order made in the case he appealed.

Action by Robert J. Anderson against the Market Hational Bank to recover the amount of two checks alleged to have been converted by defendant. Judgment for plaintiff. Defendant appeals.

<p>Appeal from special term, New York county.</p> <p>Action by Edwin A. Bradley and others to foreclose a mortgage. Miles A. Stafford impleaded with others, interposed a defense. Judgment for plaintiffs, and Stafford appeals.</p>

Action by Simon August and others against the Fourth national Bank of Hew York City, to recover an alleged balance due on a deposit account. A judgment for defendant was set aside by the court, and defendant appeals.

At chambers. On motion to compel the sheriff to make return to a writ, of habeas corpus. The writ was addressed, to Thomas P. Walsh, the keeper of the city prison, and to Hugh J. Grant, the sheriff, requiring them to produce the body of Thomas J. Mooney before the court of oyer and terminer. Mooney had been tried for arson, and acquitted.

<p>1. Eminent Domain—Proceedings to Condemn Land—Consolidation Act, 1882, § 990.</p> <p>Act N.Y. June 2,1884, declared a certain plot of land a public place, and directed that itbe condemned underNew York city consolidation act of 1882, § 995. The owners of the land objected to the confirmation of the commissioner’s report, and moved that the proceedings be dismissed under section 990, providing.that if, on the coming in of the commissioners’ report, the majority of the persons interested either by assessment for benefits or by award of damages shall appear and object to further proceedings, the court shall order the same discontinued. Meld that, as there was no assessment for benefits, section 990 had no application.</p> <p>2. Same—Condemnation of Land—Assessment of Value.</p> <p>In proceedings to condemn lands for public use, where the value placed on it by the commissioners exceeds the highest estimates of any witnesses for the public, the court will not disturb their report.</p> <p>3. Same—Condemnation of Land—Procedure—Parties.</p> <p>Where a statute directs that proceedings to condemn lands shall be taken in the name of the mayor, aldermen, and commonalty of the city of New York, the proceedings are not defective because the name of the board of street opening and improvement was also used, and that body took part therein.</p>

<p>Appeal from circuit court, Hew York county.</p> <p>Action brought by Gonzalvo De Cordova against H. B. Powter and another as copartners. Verdict and judgment for plaintiff; and from an order denying a motion for a new trial Powter appealed.</p>

<p>Fraudulent Conveyances—Action to Set Aside—Injunction to Restrain Disposition oe Property.</p> <p>Plaintiffs sold goods to a firm which subsequently confessed judgments in favor of the wife and mother-in-law of one of its members,- and then made an assignment. After levy of execution on the confessed judgments, plaintiffs sued out an attachment, and brought suit to set aside the judgments and assignment on the ground of fraud and to enforce their claim. Meld, that an injunction was properly granted restraining the sheriff from paying over any money realized under the execution, and the execution creditors from receiving such amount.</p>

Appeal by Horace B. Claflin and others from an order permitting the service of a notice of appeal from a judgment, and of exceptions, and of the defendant’s proposed case on appeal.

Action by William A. Copp, 'assignee of John C. Eno, against Harry B. Hollins and other to recover a balance of account. The cause was tried by a referee. From a judgment for defendants, and an order making an additional allowance of costs, plaintiff appeals.

<p>Pleading—Bill of Pabticulabs—When Allowed.</p> <p>Where plaintiff moves for a bill of particulars of an allegation in defendant’s answer, he cannot compel defendant to furnish a bill of particulars of another allegation by serving on him an affidavit, alleging that he desires such bill, one day before the return day of the motion.</p>

At chambers. On motion to confirm the report of a referee. This was a proceedings for a distribution of the surplus money from the foreclosure of a mortgage. The question involved was whether Frederick T. Herder, a judgment creditor of defendant Charles Mott, was entitled to a preference over the judgment of Edgar M. Hermanee against Mott, by reason of the prior docketing of his judgment. Code Civil Proc.

<p>At chambers. On application for writ of habeas corpus.</p>

Arthur J. McQuade was indicted for accepting a bribe. On trial at the general sessions, he was convicted, and from judgment there rendered he appealed.

<p>At chambers. On motion for an injunction pendente lite.</p> <p>Motion for an injunction pendente lite. C. Riessner & Co., a domestic corporation, brought this action in its own behalf, and in behalf of other creditors, etc., against Amelia Eles, Charles L. Cohn, her assignee for benefit of creditors, three judgment creditors of the assignor, and the sheriff, alleging the judgments of the defendants to have been obtained on confession simultaneously with the assignment; that the amount of such judgments exceeded one-third the assets of the assigned estate, and were in violation of Laws. 1887, c. 503, prohibiting preferences in assignments exceeding one-third the assets of the estate; that the assignee had refused to bring an action to set aside such judgments upon the request of the plaintiff, a creditor of the assignor; and praying that the judgments be set aside, and the proceeds declared to be a part of the assigned estate, distributable thereunder, and that the defendant sheriff be enjoined from paying the proceeds to the judgment creditors. Plaintiff moved for an injunction, in accordance with the prayer of the complaint.</p>

<p>Mortgages—Payment—Evidence—Intention of Mortgagor.</p> <p>Defendant was the assignee of a chattel mortgage originally given for $6,000, but which it was contended was reduced to $8,500 by certain payments made at or about the time of the assignments, and which the mortgagor testified were in extinguishment, pro tanto, of the mortgage. This testimony was contradicted by the admission of the mortgagor, made in an action against him, that the full amount of the mortgage was still due, and by evidence of other later admissions. • Upon his testimony the court below mainly, though not wholly, based its conclusions; that offered on the other side being equally inconclusive. It was apparent that these payments had so reduced the claim of the original mortgagee that he could not have enforced it for a greater sum than $3,500. Meld, that in the absence of a clearly expressed intention on the part of the debtor, as well as that of the assignee, to continue the mortgage in force as security for the indebtedness owing to the latter, the payments made reduce the mortgage, and defendant must account to the holder of a second mortgage for the surplus of the proceeds realized by him on the sale of the property, exceeding $3,500 and interest.</p>

The plaintiff, for some time previous to the transaction which eventuated in this action, had employed one Henry A. Smith, a broker in rubber, to sell that article. The plaintiff conducted this business through Smith “mysteriously,” as he described it, by which he meant that his name was not to be divulged, to avoid competition; but Smith was nevertheless to act for his principal, though undisclosed.

This action was brought by Robert Soltau against Charles Loewenthal and others to recover certain rubber. Verdict and judgment for defendants and plaintiff appealed. For the main facts in the case and the provisions of Penal Code, § 528, and the factors’ act bearing thereon, see Soltau v. Gerdau, ante, 163.

<p>Appeal from judgment on report of referee.</p> <p>Action by Benjamin P. Dawson against George if. Chisholm to rescind a contract, and for damages. Plaintiff appeals from a judgment in favor of defendant.</p>

Action, by John Jacob Astor and others against the New York Arcade Bail way Company, to enjoin the construction of defendant’s under-ground railroad. A demurrer to the complaint having been sustained, plaintiffs appeal.

Action upon a guaranty brought by Miriam 0. Miller and others against Egbert Rinehart. The Sea-Cliff & Metropolitan Camp-Ground Association issued certain of its bonds, which were secured by a second mortgage upon its real estate, and by a chattel mortgage upon its personal property. Twelve of these bonds, of the par value of $12,000, were purchased by one William Miller.

Action by Campbell Printing-Press & Manufacturing Company against George Damon and another, copartners as Damon & Peets, and Freeman & Ahlstrom. Judgment dismissing the complaint having been rendered, plaintiff appeals.

Action brought by Jacob H. Studer against George Bleistein and another, as executors of the will of C. W. McCune, to recover damages for a breach of contract. Trial before a referee, who reported in favor of the defendant, and from the judgment entered thereon plaintiff appealed.

Action brought by Jacob H. Studer against George Bleistein, as president of the Courier Company, to recover damages for breach of contract. Trial before a referee, who reported in favor of defendant, and from the judgment entered thereon plaintiff appealed.

Action by George G. Holt as executor of John Jex, deceased, against Jennie Jex for the construction of the will of the decedent. Defendant appeals from the judgment.

An order was entered, on motion of the relator, the Third Avenue Railway Company, for a peremptory mandamus to John Newton, as commissioner of the department of public works, directing him to give the relator a written permit to begin and continue excavations in the street along its route for the purpose of laying cables between the rails of each of its tracks, from which order the defendant appeals.

Action for malicious prosecution, brought by the Continental Construction & Improvement Company against Quincy A. Vinal. From an order granting leave to file a supplemental complaint, defendant appealed.

Action brought by William F. Gill against the New York Cab Company to recover for services rendered. Verdict and judgment for plaintiff, and from an order denying a new trial defendant appealed.

Action on contract by Thomas 0. Bullock and others against A. W. Oppman and others. Verdict and judgment having been rendered for defendants, and motion for new trial denied, plaintiffs appeal.

<p>Set-Off and Counter-Claim—When Allowable—Judgment in Hands of Assignee.</p> <p>Plaintiffs sued to have a judgment against them-in the hands of an assignee set off against a judgment held by them against the assignor. Plaintiffs’ equities had arisen prior to the transfer. Held, that they could maintain their action without making a demand, which could only affect the question of costs, on defendant.</p>

<p>1. Corporations — Liability op Trustees for Corporate Debts — Right to Sue Trustee’s Administrator.</p> <p>A cause of action arising under Laws 1848, c. 40, § 23, providing that, if the indebtedness of any corporation shall exceed the amount of its capital stock, the trustees of such company assenting thereto shall be personally liable for such excess, survives, and may be brought against such trustees’ administrator.</p> <p>2. Same—Liability of Trustee for Corporate Debt—Pleading.</p> <p>A complaint in an action brought under Laws 1848, c. 40, § 23, providing that, if the indebtedness of any corporation shall exceed the amount of its capital stock, the trustees assenting thereto shall be personally liable for such excess, is not defective for want of proper parties, where it does not appear that there are other creditors besides the plaintiff.</p>

At chambers. On motion for an injunction pendente lite. The Third national Bank of Springfield, Mass., a general creditor of the firm of Clark, Radcliffe & Co., brought this action on behalf of themselves and all other creditors of the firm who might come in against the members of the firm, the general assignee for the benefit of creditors, certain creditors who had obtained judgments against the debtor, and the sheriff, to set aside these judgments as illegal, and to…

<p>appeal—Procedure—From Common Pleas to Court oe appeals.</p> <p>Laws N. Y. 1887, c. 435, providing for appeals to the court of appeals from judg ments of the common pleas in causes originating in the city court, does not authorize an entry of a judgment in the common pleas for the purposes of an appeal; this act in no way amending Code Civil Proc. N". Y. §§ 3191, 3195, requiring, in such cases, that the judgment shall "be remitted to the court below, and that, on an appeal to the court of appeals, the appeal-bond shall be filed with the clerk of the city court, who shall transmit the necessary papers to the court of appeals.</p>

At chambers. Motions to vacate attachments. Actions by John A. Austin and others against Viola B. MeLaurtn and William Flash and others against the same, in which plaintiffs obtained attachments which they sought to levy on the proceeds of a certain policy of insurance. Defendant moves to vacate the attachments, or to modify the same, or the operation thereof.

On motion to strike out demurrer. It appeared by the complaint that in an action by the plaintiff- herein against one Mapes, brought before the defendant herein, a justice of the Tenth district court of New York city, the plaintiff appeared, by Ms attorney, on January 18th, the return-day of the summons, and, the case being regularly called on the calendar, and Mapes not appearing, asked for judgment against Mapes without further proof; but the justice refused to render…

<p>On motion to increase defendant’s bail.</p>

On final accounting of trustees under a will. By his will, Samuel 0.

On petition for an accounting. Code Civil Proc. § 2726, provides that an executor or administrator may be cited to show cause why he should not render and settle his account by a person interested in the estate or fund.

W. Bookstaver, Judge. Action by Andreas Gubasko against the mayor, aldermen, and commonalty of the city of Mew York for damages for personal injuries caused by the falling upon plaintiff of a tree which stood on a public, street in the city. The complaint having been dismissed on the first trial, the general term reversed the judgment; and upon the second trial the verdict was in favor of defendant.

<p>Appeal from surrogate’s court, Hew York county.</p>

Action brought by Clara Dougherty against Charles Schlesinger, owner 'of a building, to recover damages for injuries to her means of support under the civil damage act, (Laws 1873, c. 646, § 1,) which provides that any wife who shall be injured in her means of support by an intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, shall have a right of action in her own name against any person or persons who shall, by selling or giving…

<p>At chambers. On motion for a bill of particulars.</p>

<p>Appeal from county court.</p>

O. Dykhan, Justice. Action brought by Rose Acker against the town of Hew Castle. Erom the order dismissing her. complaint plaintiff appealed.

Appeals from special term, ISTew York county, and surrogate’s court, New York county. Application by Johanna Bernhard, a judgment creditor, for the payment of her claim against the estate of David McMaster, deceased, upon the appeal of Mary G. Muir, executrix.

of referee. Action brought by Francis Ano against Benton Turner to recover compensation for cutting a lot of logs. Trial before a referee, who found for plaintiff, and from the judgment entered thereon defendant appealed.

<p>Appeal from circuit court.</p>

<p>1. Negligence—Dangerous Premises—Obstructing Use oe Balustrade.</p> <p>While engaged in making purchases in defendant’s store, plaintiff, going from an apartment, the light in which was bright, to a lower and much darker floor, to which she had been directed, endeavored to reach a balustrade on the side of the stairs, but was prevented by the display figures which had been placed on the steps by defendant’s employes, and fell down the stairs. Held that, though the stairs were constructed with steps of the usual dimensions, and the balustrade was on the proper side, the obstruction by the display figures, so as to prevent persons passing down from availing themselves of the balustrade, was negligence, for which defendant was liable.</p> <p>2. Same—Contributory Negligence—Failure to Turn Back on Discovering Danger.</p> <p>In such case, plaintiff’s omission to go back after she observed the obstruction, though she might have done so, was not contributory negligence, the appearance of danger and insecurity not being so decided as to charge her with want of care, and that being the ordinary and apparently the only means of reaching the lower apartment.</p> <p>3. Same—Evidence—Similar Accidents.</p> <p>In such case, evidence that other persons had previously fallen down the stairs in the same manner, in passing from the upper to the lower apartment, is admissible as proof that the stairs were unsafe, and of notice of that fact to the defendant.1</p> <p>1 In an action against a municipal corporation for damages ftir injuries sustained by the plaintiff by reason of the overturning of Ms sleigh by a stone in the highway, evidence that another sleigh had been upset, and a wagon nearly upset, by the same stone at about the same time, is inadmissible to prove that the stone was a defect, and in the traveled part of the highway. Phillips v. Town of Willow, (Wis.) 34 N. W. Rep. 731. In an action for damages caused by a fire set out by sparks from an engine, evidence that other fires occurred along the right of way, in the same vicinity, shortly after the engine in question passed over the road, and before the fire that destroyed plaintiff’s property, held inadmissible. Bell v. Railway Go., (Iowa,) 20 N. W. Rep. 456. So, in an action for damages arising from the negligent construction of a railroad track, evidence is not competent of former accidents at the same place to parties other than the plaintiff. Hudson v. Railroad Co., (Iowa,) 13 N. W. Rep. 735.</p> <p>In an action to recover for injuries received by driving off an unguarded embankment on the highway, evidence that other persons, both before and after the plaintiff’s accident, drove off the same embankment, is legally admissible, although the jury bad a view, and it was conceded that the condition of things, throughout the entire period covered by the evidence, had been the same as it was at the time of the view. The exclusion of such evidence, however, as a matter of discretion, is not error. Cook v. New Durham, 13 Atl. 650.</p> <p>That evidence of former accidents is admissible for the purpose of showing notice, see District of Columbia v. Arms, 2 Sup. Ct. Rep. 840; Railroad Co. v. Wright, (fnd.) 16 N. B. Rep. 145.</p>

Suit brought by John Flynn, John Lowery, and others against Edwin C'.~ Ledger, as assignee of Simon Bell. Trial'at the circuit by the court without-a jury, and from the judgment in favor of defendant plaintiffs appealed.

<p>Appeal from special term.</p>

Brown, Justice. Action brought by Lizzie Clune against the Brooklyn Elevated Railroad Company for injuries sustained while endeavoring to pass from one car to an•other. Plaintiff requested the court to charge that the conductor, who was ■on the platform where the plaintiff fell, owed a duty to plaintiff to warn her •of the danger, if he knew of it, of stepping from the platform of one car to that of another. This the court refused, under the evidence.

Action by Ella Spraker against Daniel J. Dow, executor, etc., of Sarah Hilton, deceased, to recover the amount of legacy which it was alleged the-testatrix had promised to leave plain tiff. Report and judgment for defendant, and plaintiff appeals.

<p>Mortgages—Foreclosure—Payment of Plaintiff’s Claim by Mortgagees not Desiring Foreclosure.</p> <p>•On a proceeding to foreclose a railroad mortgage, it appeared that the mortgage secured bonds for §1,500,000, which had several years yet to run and were above par in the market; that the suit was begun in behalf of the holders of §79,000 of the mortgage bonds, and was for the purpose of reorganizing the company, and compelling the holders to take their pay or bonds bearing a lower rate of interest. Held, that some of the bondholders, not wishing to foreclose, should have been allowed to purchase the bonds of those desiring a foreclosure, and to pay all costs, and thereby stop the proceedings.</p>

<p>Trial by the court.</p>

At chambers, Motion to cancel an undertaking. Action by Elizabeth D. Vail against William M. Reynolds, in which the defendant was held upon an order of arrest, and George W. Quintard and Jessie Reynolds went on the bail-bond for his release. Judgment was recovered against him for about $30,000. He gave no undertaking on appeal to the general term.

The Easton Hationa Bank and the First national Bank of Cooperstown held judgments against the Bushwick Chemical Works. The Buffalo Chemical Works held a prior judgment against the same institution. The banks then instituted this action to have such prior judgment annulled. The case was tried before a referee, who found for the defendants, and from the judgment entered thereon the plaintiffs .appealed.

Action brought by Helen Norman against Henry Carter and another. Verdict and judgment for plaintiff, and from an order denying their motion for a new trial defendants appealed.

<p>1. Municipal Corporations — Contract to Grade and Improve Streets — Time op Final Payment.</p> <p>The contract under which plaintiff graded, paved, and improved certain streets and avenues, provided that, until the time of the final payment of any or all moneys retained under its stipulations, the plaintiff should replace any tree dead, or showing signs of weakness. It also provided that defendant retain a specified portion of the moneys payable to plaintiff for a period of six months, and expend it in the manner provided in making necessary repairs. The balance of the money payable to plaintiff should be paid to him on or before 30 days from the completion of the contract. Held, that the liability of plaintiff to replace dead and weak trees extended to the expiration of six months after the acceptance of the work.</p> <p>■2. Trial—Evidence—Proof oe Damaq-es.</p> <p>Defendants’ evidence, offered for the purpose of showing non-performance by plaintiff of one of the conditions of the contract, having been excluded on the ground that the matter arose after the expiration of the time for which the contract provided, plaintiff cannot, on appeal, avail himself of the objection that there was no proof of the amount of damage resulting from such non-performance.</p>

Action by Continental Rational Bank of Hew York against Hiram B. Crosby, as indorser, and Clark Bell, as maker, of a promissory note. Judgment in favor of plaintiff was entered on the referee’s report, and defendants appeal.

La wrench, Justice. Action by James Ahern, as administrator of his infant son James Ahem, deceased, against Rosalie M. Steele, Henrietta Hutton, Edwin 0. Sturges, and Fanny McCarthy, executors of Thomas McCarthy, deceased, owners, and Frank Phelan, tenant, of the pier, through a hole in which the plaintiffs intestate fell, and was drowned. Phelan occupied under a lease from the trustee of the mother of the defendants Steele and Hutton, and Thomas McCarthy.

Lawrence, Justice. Action by Julius Kopp against Maria Magdalena Kopp, Caroline Mathes, and Edward Mathes, her husband, Elizabeth Wimmer, and Herman Wimmer, her husband, Charles Kopp, and Pauline Kopp, for the partition of certain premises of which the father of plaintiff died seized. The defendant Maria Magdalena Kopp is the widow, and the defendants Caroline Mathes, Elizabeth Wimmer, Charles and Pauline Kopp are the children and only heirs at law, of decedent.

<p>Equity—Cancellation oe Deeds—Undue Ineluence—Averments oe Complaint.</p> <p>The complaint in an action to set‘aside a deed on the ground of undue influence set forth the details of a scheme by which defendant acquired, piece by piece, nearly all the property of her mother, the grantor, to the exclusion of her sisters. Held that, though the allegations as to the amount and nature of the 'property owned by the mother at the time of the inception of the scheme, and those relating to the transfer to defendant of such property other than that conveyed by the deed sought tO' he set aside, are not necessary, it is not error to refuse to strike them out.1</p> <p>1 As to when equity will grant relief on the ground of fraud and undue influence, see Callery v. Miller, ante, 88, and note.</p>

Action by Sil vain S. Gross against Adolph Bock upon an account stated between themselves and Leopold Gross, on which occasion defendant made and delivered to plaintiff a certificate showing his indebtedness to the latter.

Action by Sarah R. Chave, as administratrix of Prank H. Chave, against the New York & Harlem Railroad Company, to recover damages for the killing of plaintiff’s intestate. The complaint was dismissed, and judgment entered for defendant, from which plaintiff appeals.

This is an appeal from a special term order granting plaintiff’s motion for a further bill of particulars. The action was brought by the Gas-Works Construction Company of Philadelphia against the Standard Gas-Light Company of Yew York city, Wallace C. Andrews, Joseph A. Monheimer, and Benjamin F. Sherman.

<p>1. Carriers—Of Passengers—Negligence—Crowded Cars.</p> <p>Plaintiff's intestate boarded a closely crowded train on the New York Elevated Railroad, but was not able to get into the car. While standing on the platform, between two cars the pressure of the outcoming crowd, as the train approached Seventy-Sixth street, caused him to step back, and he fell or was jostled between the cars, and was killed, there being nothing to inclose the open space. Meld, that the accident, when the cars were so crowded, was such as should have been foreseen and guarded against by defendant, though for 6 years, during which defendant had carried 300,000 passengers per day, no other such accident had occurred.1</p> <p>1If a common carrier of passengers omits any reasonably practicable precaution tending to insure the safety of the passengers, the omission is such negligence as will make him liable to a passenger who, without fault himself, is injured thereby. Anderson v. Seholey, (Ind.) 17 N. E. Rep. 125. See note, Id.</p> <p>2. Same—Contributory Negligence—Question for Jury.</p> <p>Where a person boards a closely crowded train, but is able to stand on the platform away from the edge, and not in an apparently dangerous position, in an action for damages for his being killed by falling between the cars, his contributory negligencejis a question for the jury.</p>

George B. Hash, as administrator of Margaret A. Hash, deceased, brought this action against the Hew York Central & Hudson Biver Railroad Company for damages for causing the death of plaintiff’s intestate.

<p>Depositaries—Compensation — Holding Fund after Time Fixed by Contract under Order of Court.</p> <p>A trust company held funds, belonging to a person of unsound mind, deposited by his so-called trustee under an agreement as to the compensation. Upon the death of the beneficiary, the trustee became his administrator, and, on his application, the surrogate ordered that the fund remain in the company’s custody, subject to the court’s order. Meld,, that the contract fixed the compensation after as well as before the order of the surrogate, since the order merely perpetuated the agreement of the parties.</p>

Bookstaver, Judge. Action by Margaret Rogen, as administratrix, etc., of John Rogen, deceased, against Enoch Morgan’s Sons’ Company, to recover damages for injuries, causing the death of her intestate, while in defendant’s employ. The complaint was dismissed on the ground of contributory negligence, and plaintiff appeals.

<p>Arrest—In Civil Actions—Placing Property beyond Reach of Sheriff.</p> <p>Where plaintiff deposits his promissory note, payable to himself, and indorsed by him, with defendant, as collateral security fpr a letter of credit, upon the written stipulation of defendant that he will not allow the note to go out of his possession, defendant’s partingwith the note before its maturity, and giving it to his creditors as collateral for any balance which might be due them from him, knowing that there was nothing owing upon the letter of credit, constitutes a disposal of a chattel so that, and it will be presumed with intent that, it shall not be found by the sheriff, though it is not shown to be held by an innocent indorsee ; and an order of arrest will be granted.</p>

On motion to compel a purchaser of land to comply with terms of sale. Pursuant to a decree to that effect; David Cromwell, a freeholder appointed for the purpose, duly sold one of several parcels of the real estate of Joseph Bellesheim, deceased, for the payment of his debts, to Edward Lestrange Phipps, in February, 1888, for the sum of $1,380, of which sum the purchaser paid 10 per cent., in compliance with the terms of sale.

On motion for a new trial on the minutes. Action for slander, brought by Emily Halstead against Edward B. Kelson. Trial by jury, and verdict for plaintiff for $500. Defendant moved for a new trial on the minutes.

Lawrence county. Appeal by the defendant from a judgment in favor of the plaintiff entered upon a verdict of the jury at the St. Lawrence circuit, and also from the order denying motion for a new trial made upon the minutes.

Bergen, Surrogate. Petition by George 0. Bedell for an accounting by William B. Bedell, administrator, etc. Erom the decree of the surrogate allowing the petitioner his share of the estate in question the administrator appeals.

<p>Appeal from spécial term, Hew York county; Donohue, Justice.</p> <p>Action by Jacob Knight, Arthur M. Garlock, and Joseph H. Knight against John H. Abell. An order of arrest was vacated, and plaintiffs appeal.</p>

<p>Witness—Impeachment—Hostility op Witness.</p> <p>In an action lor personal injuries a witness for defendant was asked, on cross-examination, “Did you not say to J. that day after the accident that you had seen the accident, and that you were going to work a position out of it for yourself? ” Also, “Did you not say that the defendants were going to appoint you a conductor? ” Also, “Did you show a piece of paper to J., and say it was a check for$500, payable after the trial? ” Also, “Didn’t you say to him that he had better take you right to M., [plaintiff;] that you had seen the accident, and could be of some good to him? ” Plaintiff then called J. and another to contradict the witness’ answer to the questions. Meld, that the admission of such latter evidence was reversible error, as raising a collateral issue, and as being incompetent to show the hostility of the witness.1</p> <p>1In showing the bias of a witness, the party against whom he has testified is limited to a cross-examination of the witness. State v. Townsend, (Iowa,) 24 Ñ. W. Rep. 535. On trial of an indictment, testimony was sought to be introduced as to certain declarations made by the prosecuting witness for the purpose of showing his animus towards the defendant. Held, that the prosecuting witness must be first cross-examined as to acts and declarations hostile to defendant. State v. Dickerson, (N. C.) 3 S. E. Rep. 087.</p> <p>As to the latitude allowed in cross-examining a witness, with reference to his friendship or hostility towards the parties, it is held that any question is proper the answer to which has a tendency to show bias or prejudice. People v. Wasson, (Cal.) 4 Pac. Rep. 555; State v. Krum, (Kan.) Id. 621; State v. Collins, (Kan.) 5 Pac. Rep. 368. Where a witness has testified to material matters, the party against whom he has testified may on cross-examination show prejudice on the part of such witness, but not otherwise. Luhrs v. Kelly, (Cal.) 7 Pac. Rep. 696. The admission by a witness of ill feeling against one of the parties to an action does not preclude the latter from cross-examining the witness as to the character and extent of his prejudice. State v. Collins, (Kan.) 5 Pac. Rep. 368. A party will not be allowed to go into the details of the hostility of an opposing witness. Stone v. Tupper, (Vt.) 5 Atl. Rep. 387.</p>

Milllf.r, Referee. This was an action for legal services, brought by Luther L. Kellogg against Elizabeth W. Besse. Defendant appeals from a judgment in favor of plaintiff entered upon a report of the referee, and also from an order of the court granting plaintiff an extra allowance of 5 per cent, upon the amount reported due; also from an order made upon the settlement of a proposed case on appeal, allowing an amendment thereto.

Justice. This was an action of ejectment, brought by Milano C. Tilden against Hermann Duden, to recover a tract of land held by defendant as assignee under a tax lease. The sale for taxes was had under Laws 1874, c. 610, entitled “An act to authorize the sale of lands for non-payment of taxes, and for the collection of unpaid taxes in the several towns of the county of Westchester,” passed June 6, 1874, and the acts amendatory thereof. Laws 1877, c. 193; Laws 1880, c. 506.

Hoffman, Referee. This was an action for commissions, brought by William Taylor against Enoch Morgan’s Sons’ Company. Judgment was entered, upon the report of the referee, in favor of plaintiff for $2,475.53. Defendant appeals.

Van Brunt, Presiding Justice. This is an appeal from an interlocutory judgment requiring the defendant to account for 1 per cent, of the gross earnings received by it in the operation of its ears over the Bleecker Street & Fulton Ferry Railroad, of which the defendant is a lessee.

This was an indictment against John Bough, in the usual common-law form, for grand larceny in the first degree.

<p>Appeal from special term, Yew York county; Miles Beach, Justice.</p> <p>This was an action by Bryce Gray, William Miller, and others against Maier, Charles M., Jacob M., and Abraham Rothschild, to recover damages caused by an alleged conspiracy. From an order and interlocutory judgment sustaining a demurrerto the complaint, for misjoinder of parties plaintiff, the plaintiffs appeal.</p>

This was an action by John T. Sherman, Frank F. Cecil, and others against the same defendants as in the preceding case of Gray v. Rothschild, ante, 299, and is in all respects like that case, except that the plaintiffs here had reduced their claims to judgment before bringing the action. From an order and interlocutory judgment dismissing the action on demurrer for misjoinder of parties plaintiff, the plaintiffs appeal.

This was an action by Jane Wright, as executrix of the will of Harriet Flint, deceased, against Dennis O’Brien, attorney general, “John Doe, RicharJ Roe, and others, the heirs and next of kin of Harriet Flint, ” for a construction of the will.

Action, by Nathaniel P. Bailey and others against the New York Arcade Railway Company, to enjoin the construction of defendant’s under-ground railroad. A demurrer to the complaint having been sustained, plaintiffs appeal.

<p>Appeal from special term, Kings county; Bartlett, Justice.</p> <p>Action by Edward Kane against the city of Brooklyn to set aside a certificate of tax sale, and to restrain the issuing.of a deed of the premises. Judgment for defendant, and plaintiff appeals. A provision in the charter of Brooklyn requires public notice to be given that the tax assessment books are open at a certain time, and that any one aggrieved by the valuation put upon his property may make application to have it corrected. The notice given in this instance was that the assessment rolls for the year had been completed, and that copies could be seen and examined by any one interested, and that the board would be in session to review the rolls on the application of any considering themselves aggrieved. The charter also requires the tax collector to make a return of unpaid taxes, etc., and the appellant in this suit maintained that an accompanying certificate of authentication was necessary. Laws if. Y. 1878, c. 346, requires, inter alla, that tax-rolls in the city of Brooklyn be signed by the board of supervisors. In the case at bar the warrants annexed to them only were signed. Laws if. Y. 1885, c. 405, amending the Brooklyn city charter, requires that all advertisements for tax sales shall refer to a list of the land upon which taxes shall be returned unpaid, which list shall designate the ward in which the land is situated; the block and lot number, the street, avenue, or road, etc.; also that it shall be no objection to the validity of any sale that the list incorrectly states or omits to state any matter required, provided that the ward, block, and lot numbers are correctly stated. In the present case the number of the avenue was incorrectly stated.</p>

Van Brunt, Justice. This was an action brought by James Austin against Jane Oakes, individually and as executrix and trustee, William A. Oakes and others, to have construed the will and codicil of William Hutchinson, (also known as “William Austin,”) deceased. From a judgment in favor of plaintiff, defendants appeal.

<p>Appeal from circuit court, Kings county; Edgar M. Cullen, Justice.</p> <p>Action on a fire insurance policy by George N. Wilber against the Williams-burgh City Fire Insurance Company. Judgment for plaintiff, and defendant, appeals.</p>

Brown, Justice. Action of slander, brought by Lucy Ann McMahon against George E. Hal-lock. On the trial of the ease, on defendant’s motion, the court made an order dismissing plaintiff’s complaint on the ground that it did not state a cause of action. From this order plaintiff appealed.

Bbown, Justice. This was an action by Elizabeth R. Cannon against George T. Smith and Martha H. Butler, executors of Eleazer Smith, deceased, J. Lawrence Smith, G. Herbert Newton and wife, to compel a delivery of a deed by the executors, and the surrender of a bond and mortgage given by plaintiff to the testator, and to have a deed from the executors to defendant Newton set aside. On report of the referee, the complaint was dismissed, and plaintiff appeals.

Vann, Justice. This was an action brought by Joseph J Little and William J. Demurest against Charles L. Webster and Samuel L. Clemens, praying for the reformation of a written contract entered into between plaintiffs and defendants, and for relief under it as reformed. Trial to the court, and judgment reforming the contract, and granting the relief as prayed. Defendants appeal.

O. Dyioian, Justice. John Anderson died November 22,1881, leaving a large amount of real estate in this state. He left a widow, a son, John C. Anderson, a daughter, Laura Y. Appleton, and several grandchildren, the offspring of his deceased children. By his will all his real estate was devised in fee-simple to John C. Anderson, who took possession and disposed of a considerable portion of it.

The complaint alleges the making of the promissory note for $1,000 by defendant, Samuel B. Adler, to the order of James R. Watts, dated August 24, 1885, payable three months after its date, and the delivery thereof to the said James R. Watts for value; the indorsement by Watts; and that said note thereafter, for value, came lawfully into the possession of the plaintiff, Casilaer F. Hartnett, who is now the lawful owner and holder thereof; that no part of said note has been…

On trial by the court. The action is on a past-due draft for $513.53 drawn by William H. H. Rogers, and accepted by the defendants. Rogers induced the defendants to accept the draft on his promise to make up the difference between the amount thereof and $1,000, and to use the proceeds to retire a draft for that sum, which they liad previously accepted for his accommodation.

On application for a new trial. Rebecca Rosenberg made complaint before a police magistrate, charging Stano Salvatore with assault and battery, and on trial defendant was acquitted. Complainant then brought a civil action on the same state of facts, and, after putting-in the same proof, defendant introduced the record of former acquittal, and moved to dismiss the action, on the ground that it was res adjudicata, which motion was granted, and plaintiff moved for a new trial.

Action brought upon two promissory notes made by the Ivanhoe Paper Company, payable to the Jessup & Moore Paper Company, plaintiff, or its order,—one dated August 25, 1887, the other dated September 3, 1887,—and alleged to have been indorsed by S. Wilber Parker, defendant, for the purpose of paying for wood pulp sold and delivered by plaintiff to the Ivanhoe Paper Company on the credit of such indorsement; and that the defendant indorsed the said notes for the purpose of…

Action brought by William Harrigan against Bartholomew Donegan and -James Reilly. Appeal from a judgment entered upon the verdict of a jury ■on April 14, 1888, and from an order entered April 17,1888, denying defendants’ motion upon the minutes to set aside the verdict and for a new trial. Tried before Pitshke, J., and a jury.

Motion to set aside verdict and for new trial. The two promissory jiotes on which this action is brought, were delivered, by Lindau (the maker and payee thereof) to one Breck, with Jacobs as prior indorser thereon, for accommodation-and without consideration, and by Breck directly passed to the plaintiff, in payment of an indebtedness for merchandise-sold by plaintiff unto Breck, and by him previously received.

Osborn, Judge. Action by James Dorman, administrator of George Dorman, deceased, against the Broadway Railroad Company of Brooklyn, for damages for the death of plaintiff's intestate while crossing the track of the defendant. J udgment for plaintiff, and defendant appeals.

<p>Appeal from special term.</p> <p>Charles Kruse applied to Charles H. Woodman, William S. Andrews, and. John Van Glahn, commissioners of excise of the city of New York, for an hotel license, which application was denied. He then obtained an alternative-writ of mandamus against the board, which made a motion to quash. This-motion was denied by Judge Daly, and the board appealed. Subsequently-Judge Bookstaver made an order settling an issue of fact to be tried by a. jury, and from this order the board also appealed.</p>

This is an action for slander, brought by Edwin Gomez, Jr., against Edward Joyce.

On motion for new trial. • William Brooks, plaintiff, sued Sarah A. Ludin, defendant, for injuries received by being thrown from his buggy through the negligence of defendant’s driver; claiming to have been kept from his business two months, at a loss of $50 per day, and a physician’s bill of $160. Plaintiff received a verdict of $30, and moved for a new trial.

<p>Executors and Administrators—Power to Sell Realty—Failure of All Executors to Qualify.</p> <p>Where a testator appoints two executors of his will, and provides that his real estate may he sold, but one executor is not authorized to sell without the consent and co-operation of the other, and only one accepts and qualifies, he cannot sell and give a valid title, under Code Civil Proc. N. Y. § 2642, providing that when power to sell is given by will to executors, and all do not qualify, a deed from those who do shall be as valid as if all had joined; the intent of the will being that a single executor, from whatever cause he was the single executor, should have no power to sell.</p>

W. Peckhah, Justice. Action by Cyrus Cross and Celistia Cross against Jonas Mowers for trespass on land claimed by both parties. Judgment for defendant, and plaintiffs appeal.

G. Hollins, Surrogate. Louis A, Hesmith died in the city of Hew York, Hovember 1, 1880, leaving a will which was executed less than 48 hours before his death, drawn by Josiah Fletcher, a lawyer, who was one of the subscribing witnesses, the other being Lemuel D. Bailey. By this will he gave specific legacies to Martha Manderson, his motlier-in-law, and to his mother, his servant, and his sister Mary, and residuary legacies to his brother and his other two sisters.

Action by William W Willard against the Doran & Wright Company, Limited, brought under the statute to recover money lost at stock gambling. Defendant appeals from an order directing a compulsory reference.

Barnard, Justice, Beplevin by John Higgins against John' Graul for certain described chattels, or the value thereof. Plaintiff had given to defendant a bill of sale of the property, assigning as a reason: “I gave it to hinr to hold until I could pay up every debt I owed in the world.” He further testified that he received no consideration for the same.

<p>Attorney and Client—Compromise by Parties—Right op Attorney to Costs.</p> <p>Where, pending an appeal from a judgment in favor of plaintiff, it was agreed between the parties that plaintiff would stop the action upon settlement by defendant of all taxable costs therein, and plaintiff further agreed to do certain work for defendant, his failure to do the work does not affect the right of plaintiff’s attorney to his costs, though the latter had knowledge of the settlement.</p>

Lewis W. Belcher brought this action against the Manhattan Railway Company for personal injuries occasioned by slipping upon ice on the stairs of the company’s elevated railway station.

Action by the Springfield Iron Company against David M. Kelley and another for a breach of contract. The case was tried before a referee, wiio found for plaintiff, and from the judgment entered thereon defendant appealed.

Brown, Referee. Jonas M. Libbey brought this action, against Lewis C. Tufts and Michael and Mary Duffy, to foreclose a mortgage originally given by the defendant Duffy to the plaintiff for $125,000 upon eight full lots of land, and the ten houses built thereon, situated on the easterly side of First avenue, between Seventy-Ninth and Eightieth streets, in the city of New York.

John Travis brought this action against Bernard Travis and Jesse Travis for a partnership accounting. Judgment was entered upon the report of a referee in favor of the plaintiff, and against the defendant Bernard Travis, for §10,117.11, and in favor of the defendant Jesse Travis for §20,447.20.

Joseph Duelos and Adolph Prochownick, trading under the name of the East Biver Iron-Works, brought this action against Eugene S. Boyd and another to recover for iron-work furnished under a written contract. The defense was payment; a check to the order of the East Biver Iron-Works having been given by defendants to the plaintiffs’ agent, in the manner stated in the opinion, and the agent having collected the check and appropriated the proceeds to his own use.

This was an action by Anna M. Dobbins, as administratrix of Lorenzo Dobbins, deceased, against the firm of Brown, Howard & Co., to recover damages for the negligent killing of her husband. The court (Bartlett, J.) charged the jury as follows: “The plaintiff’s husband was a miner employed at shaft Ho. 3 on the new Croton aqueduct in this county, and he lost his life while descending that shaft on the morning of December 7,1885.

Action by the Bradford, Eldred & Cuba Railroad Company, and Thomas CPlatt as receiver, against the Hew York, Lake Erie & Western Railroad Company, for sums alleged to be due plaintiffs on a contract. Judgment was rendered for plaintiffs for $103,201.63, and defendant appeals. The case was tried and appealed once before, and is reported in 42 Hun, 496.

0. Dykhan, Justice. Action brought by Juliette Hyland, an infant, by James F. Hyland, her guardian ad litem, against the Yonkers Railroad Company. On trial, at close-of plaintiff’s testimony, the court dismissed the case, and the plaintiff appeals.

<p>At chambers. Motion to amend judgments.</p>

This is an action by James W. Camp, as executor of Mary Etta Camp, against James W. Smith, to recover the balance of the legacy and distributive share to which said Mary Etta Camp was entitled under the will of her father, William Smith, after deducting certain payments' on account thereof. From a judgment for plaintiff on report of the referee defendant brings this appeal.

Action by James VV. Camp, as executor of Mary Etta Camp, deceased, against James W. and Wilbur F. Smith upon two promissory notes made by defendants to William Smith, and by him indorsed. From a judgment dismissing the complaint, plaintiff appeals.

<p>Appeal from special term, New York county; Miles Beach, Justice.</p> <p>The defendant, John P. Huggins, appeals from a judgment directing him to specifically perform a contract for the purchase of four lots of land situated at the south-west corner of One Hundred and Sixteenth street and Grand boulevard, in the city of New York, and to pay the balance of the agreed price. Plaintiffs, Thomas H. O’Connor and Catharine Oarrigan, sue as the executors of Andrew Oarrigan, deceased; and the contract sued on was a purchase of property of the estate at executors’ sale.</p>

This was an action to determine adverse claims to real estate, brought by William A. Hoar and others, by guardian, against William H. H. Hoar.

<p>Replevin—Failure oe Jury to Assess Damages—Allowance of Nominal Damages.</p> <p>In an action of replevin, where the jury find a verdict for plaintiff, but fail to agree upon the amount of his damages, as required by Code N. Y. § 1726, defendant cannot complain of the action of the court in inserting nominal damages into the verdict.</p>

<p>On motion for certiorari.</p>

<p>Eminent Domain—Construction op Elevated Railroad—Injunction to Restrain —Consequential Damages.</p> <p>Where an elevated railroad company has obtained the consent of the city and of the requisite number of property owners, and has proceeded with the construction of its road in the street beyond the property of the plaintiffs, a court of equity, in the exercise of its discretion, will not enjoin the further prosecution of the work on the ground that compensation has not been made to plaintiffs for consequential damages.</p>

<p>Insurance—Termination of Risk by Insurer—Notice to Assured.</p> <p>Under a clause in a fire insurance policy providing that “this insurance may be terminated at any time * * * by the company on giving notice to that effect to-the assured, or to the person who may have procured this insurance, ” the assured is entitled to a reasonable time after notice in. which to procure insurance elsewhere ; and a notice given only two hours and a half before the insured property is destroyed by fire, and at a time of the day when insurance is difficult to obtain, does not furnish such reasonable time, and does not release the company.</p>

Van Brunt, Presiding Justice. This was an action on a contract of insurance, brought by Ephraim Karelsen and Martin Lipman, against the Sun Fire Office of London. There, was a verdict and judgment for plaintiffs, and defendant appealed.

Nott, Judge. Action of replevin brought by the Quinn & Holán Severwyck Brewing Company against John W. Hart, as sheriff of the county of Albany.

The action was brought by George W. Mead against Samuel T. Ludlow and others, (holders of a judgment against the plaintiff and Samuel W. Dunscomb and another, co-defendants,) and Erwin I. Spink and others, attorneys for the. judgment creditors.

<p>Appeal from special term, Suffolk county; Bartlett, Justice.</p> <p>Action brought by Ruth H. Smith against Caroline A. Smith to compel defendant to assign to her two mortgages. Plaintiff alleged that she placed $2,000 in defendant’s hands to invest for her in 1884; that defendant purchased two mortgages, taking an assignment of them as follows: “To the said Caroline A. Smith absolutely if she survives the said Ruth, or if the said mortgages shall be paid off during their joint lives; but if the said Caroline shall die before the said mortgage is paid off, leaving the said Ruth surviving her, then from and after the death of Caroline to Ruth absolutely.”' Plaintiff further alleged that, trusting defendant, who was her sister, she had permitted her to keep possession of the mortgages and assignment and collect the interest, and had only discovered the form of the assignment a short time before bringing suit, and about three years after the transaction. Plaintiff further denied that she ever made any agreement as stated in the assignment. Defendant in her answer alleged that the assignment embraced the agreement between them, but admitted in' her testimony that there was no agreement that the money should belong to her in case the mortgages were paid while both were alive. Each party, by her testimony, supported the allegations of her pleadings, and there was no other testimony as to those facts. The court below entered a judgment in favor of plaintiff, and defendant appealed.</p>

<p>Appeal from special term, Westchester county; J. O. Dykman, Justice.</p> <p>Action brought by the village of Tarrytown against the Pocontieo Waterworks Company to restrain defendant from laying' a water-main in one of plaintiff’s streets. Defendant is a trading corporation organized under Laws-1873, c. 737, by the consent and permission of the village of North Tarry-, town, in Westchester county. By the fourth section of that law any such corporation is authorized to lay water-pipes in any street or avenue of an adjoining town or village to the town or village where the application for its creation was granted. Laws 1876, c. 415, for the first time conveys upon water corporations having a contract with any town or village the power to-acquire land and water by the exercise of the right of eminent domain. Laws 1883, c. 483, § 2, is as follows: “All the rights, powers, and privileges conferred, and all the duties and obligations imposed, by said chapter 737 of' the Laws of 1873, and by all acts supplementary thereto or amendatory thereof, are hereby conferred upon any such company so contracting with any other town or village, or the authorities thereof, for the purpose of enabling it to carry out and perform such contract; and all the provisions of said act, and of all acts supplementary thereto and amendatory thereof, and not inconsistent with this act, are hereby made applicable to any such company and town or village so contracting, so far as the same can be applicable thereto. ” Defendant having laid its pipes in the village of North Tarrytown entered into a contract with the villages of Dobbs Perry and Hastings to supply them with water, and claimed the right to lay its main through plaintiff’s street to carry out that contract. " A temporary injunction was issued, which the-court, on motion, dissolved, and the plaintiff appealed.</p>

Action by William H. Flyer against the German-American Insurance Company on a policy of insurance issued on the mud-digger known as “Yard and Docks No. 125.” There was the following stipulation in the policy: “It is understood that the said vessel is in charge of a watchman.” There was a trial which resulted in a verdict and judgment for defendant.

These actions were brought by the city of Xew York against the Third Avenue Railroad Company to recover of the defendant the aggregate amount of the annual license fees of $20 for each car operated by defendant, Xo. 1 upon its main line, and, Xo. 2, upon its so-called “Grand Central Line.” The actions were founded upon a certain resolution adopted by the plaintiff, December 31, 1852, and subsequently, and on January 1, 1853, embodied in a written agreement between the…

Appeal irom judgment on report of D. M. De Witt, Beferee, and from special term, J. F. Barnard, Justice. Action brought by James Donohue against Charles Hammel. The case was tried before a referee, who found for the plaintiff, and from the judgment entered thereon defendant appealed.

<p>1. Parties—Non-Joinder Appearing on Pace of Complaint—How Taren Advantage of.</p> <p>Where it does not appear from the complaint whether an omitted plaintiff is living at the time of commencing the action, defendant must take advantage of the defect by demurrer, and he cannot set it up in his answer.</p> <p>3. Contracts—Time of Performance—What is Reasonable Time.</p> <p>In an action for damages on the ground that defendant prevented plaintiffs from performing a contract between the parties to run a tunnel in defendant’s quarry, where it appears that work was suspended by consent of parties until a general resumption of work in the quarry, plaintiffs cannot recover if they were given an opportunity to resume work within a reasonable time after the general resumption, and before they had reasonably engaged in other work.</p> <p>3. Trial—Instructions—Damages for Breach of Contract.</p> <p>In an action to recover damages on the ground that defendant prevented plaintiffs from performing a contract between the parties to run a tunnel in defendant’s quarry, it appeared that work was suspended by consent of parties until a general resumption of work in the quarry. The court refused to charge that plaintiffs would have had a right to go to work"on the tunnel when notified to do so, and hold defendant for damages caused by delay in resuming. Held not error, as the court had charged that if defendant gave plaintiffs an opportunity of resuming when general work was resumed, and plaintiffs refused, they could not recover.</p>

On certiorari. These are proceedings by writ of certiorari to review the judgments rendered by the respondent Dewitt 0. Moore, police justice of the village of Johnstown, in two actions, in the first of which Mary Jane Moore was plaintiff, and the relator, Benjamin Ricketts, was defendant, and in the second of which Lydia Kennedy was plaintiff, and the relator, Samuel Loucks, was defendant.

This was an action for goods sold and delivered, brought by Benjamin F. and Charles Conklin against the Prospect Park Hotel Company. Judgment for defendant, and plaintiffs appeal.

<p>1. New Trial—Misconduct of Jury—Compromise Verdict.</p> <p>Though the general rule is that the verdict of a jury will he regarded as conclusive upon a question of fact, where the evidence is conflicting, yet where it is apparent that the jury could not have agreed upon so insignificant a sum as their award of damages to the plaintiff, except as the result of a compromise of the most objectionable sort, their verdict is properly set aside, and a new trial granted.</p> <p>3. Costs—On Setting aside Verdict—Who Liable.</p> <p>Where a verdict for plaintiff is set aside on the ground that the evidence required a larger one, and a new trial granted, costs of the circuit should be imposed as a condition, to be paid by plaintiff to defendant, instead of directing that they abide the event of the action.</p>

Plaintiff, Edward Arnold, a yard brakeman in the employ of defendant, while attempting to make a coupling between two box cy-rs in the Schnenectady yard, got his arm caught between the dead-woods of the two ears, and received such severe injuries as to require amputation of the arm, for which injuries he brought this action. On the first trial plaintiff had a judgment for $2,500, which was reversed by the general term. 44 Hun, 622.

This was a proceeding, under the statute, upon a claim against the estate of an intestate, by Elizur V. Foote against Sarah M. Valentine, administratrix of George W. Valentine, deceased. The claim was in form of a promissory note executed by the intestate. The administratrix rejected the claim, and the matter was, under the statute, sent to a referee, who decided in her favor.

Sugar M. Cullen, Justice. Action brought by Abijah Weston and another against Lorenz Reich to foreclose a mechanic’s lien. Plaintiffs procured an order requiring defendant to be examined before trial, and from an order denying defendant’s motion to vacate such order defendant appeals.

Donohue, Justice. Action by Julius Kayser against Anna M. Arnold, Satterlee Arnold, Abraham G. Jennings, and Oliver T. Jennings, for the specific performance of a contract. Judgment was for defendants, and plaintiff appeals from the judgment dismissing the complaint, and from an order granting an additional allowance.

The Nuns of the Order of Saint Dominick, a corporation, plaintiff, sued Long Island City, defendant, for board of certain pauper orphans. Judgment for plaintiff, and defendant appeals.

On demürrer to counter-claim. Samuel B. Barker sued George P. Platt for conversion, for collecting $2,500 due plaintiff for goods sold by defendant, as his agent, on commission, but without authority to collect. Defendant admitted receiving the money,’ claimed authority to collect, and set up as counter-claim a claim for commissions alleged to be due, for $3,000. Plaintiff demurred to the counter-claim.

O’Gorman, Judge. William C. Werner, plaintiff, sued Solon Winterbottom and Abram Winter, defendants, to recover damages for injuries alleged to have been sustained by plaintiff from the bite of a dog alleged to have been kept and harbored at the stables of defendants, and upon the theory that the dog was of a vicious disposition, and accustomed to bite persons, and known by defendants as a dangerous dog, and accustomed to bite persons.

This action was brought by John Bobinson, of Fall River, Mass., against the Oceanic Steam Navigation Company, a corporation organized under the laws of the United Kingdom of Great Britain and Ireland, to recover damages for the death of plaintiff’s intestate, which is alleged to have occurred in the collision between the defendant’s steam-ships Britannic and Celtic, on the Atlantic ocean, about 375 miles from New York city, in May, 1887.

Action brought by Edward 2ST. Dickerson and others against Simon Scheuer and others to recover a balance due for legal services rendered defendants in a patent suit. In January, 1884, defendants were sued by a rival firm, when they retained plaintiffs, and entered upon a litigation, lasting about two years. At the time of retaining plaintiffs defendants were informed that plaintiffs had a regular scale of rates; but they did not ask, and were not informed, what the scale was.

Trtjax, Judge. Edward Lyon, receiver of the Coliseum Company, sued Jane B. Muxlow and Edward P. Wilder, defendants. The court ordered plaintiff to file security for costs of defendant Muxlow, or deposit $250. Charles Forbes, a surety on the undertaking, to avoid justifying, deposited $250 with the clerk. The court ordered a portion of this money to be paid to defendant Wilder for his costs.

Hannah W. Andrews, guardian of E. B. Andrews, minor, plaintiff, sued John Townshend and Daniel O’Neil, defendants, in ejectment. Under agreement, verdict was rendered for the plaintiff, subject to the opinion of the general term.

Submission on agreed statement of facts. Action brought by Bichard Stoker against Samuel Schwab, to enforce a contract for the sale of land. The parties agreed on a statement of facts, and submitted the controversy to the court.

<p>Appeal from trial term; Richard O’Gorman, Judge.</p> <p>Charles W. Doherty and others brought five actions in ejectment against George W. Matsell and another, to recover certain described premises. By stipulation the several actions were held to abide the event of action Ho. 1. This action was formerly tried by Charles H. Truax, Judge, and verdict directed for defendants. The general term reversed the judgment, and ordered a new trial. 54 U. Y. Super. Ct. 17. At the second trial judgment was rendered for plaintiffs, and defendants appeal.</p>

<p>Appeal from trial term; Henry P. McGown, Judge.</p> <p>Action by Neil MeCallum against the Purssell Manufacturing Company, for the conversion of certain property claimed by plaintiff. Evidence was admitted of admissions by and demand for the property made upon parties who subsequently became the incorporators and officers of defendant, as showing admissions of and demand upon defendant. Judgment for plaintiff. Defendant appeals from the judgment and an order denying a new trial.</p>

On submission of a cause on an agreed statement of facts. Action brought by Julius Kaiser against John Hoey as president of the Adams Express Company, which is a joint-stock association, and a common carrier of goods. On the 23d of December, 1887, at Shenandoah, Pa., the plaintiff’s assignor delivered to the defendant certain goods which the company agreed to deliver to him at No. 44 Maiden lane, in the city of New York.

Pitsohke, Judge. Action by Mary Otten against Harvis Cohen and Abraham Cohen, for negligent injuries to plaintiff’s child, caused by the falling of a sign of defendant.

FTehrbas, Judge. Action by Andrew Powell against Hugh Lamb and Charles A. Rich to recover commissions as a real-estate broker. Defendants, being the owners of certain real estate, placed it in the hands of several brokers, among them plaintiff, in whose employ were William C. Gracey and Emson Hartshorn, and one Schuyler, to procure a purchaser at the price of $15,500.

This is an action on a promissory note. Defendants offered to prove that the note in suit was given by defendants to Jacob Fisher in exchange for a like note of Fisher for accommodation of the latter, and that this was known to plaintiff at the time he received it; that Fisher made an assignment for benefit of creditors, at plaintiff’s request, making plaintiff a preferred creditor on his agreement to accept the same in satisfaction of Fisher’s indebtedness.

Action by Newell Bros. Manufacturing Company against Isidore Grunwald for goods sold and delivered.

<p>Appeal from trial term; Hyatt, Judge.</p> <p>Action by Charles E. Bonwell, as assignee of a claim of Joseph E. Rogers, :a real-estate broker, for commission on an exchange of property, against John T. Howes. Defendant’s father, Reuben W. Howes, as agent of defendant, employed Rogers to find a purchaser for a vacant lot owned by defendant near Ninety-Eighth street and Tenth avenue, or effect an exchange thereof, on the usual terms of 1 per cent, commission on the price to be obtained. In pursuance of such employment, Rogers introduced the senior Howes to Mr. .Simon Haberman, the owner of several apartment houses on One Hundred .and Second street and Fourth avenue. Howes and Haberman at once entered into negotiations with a view to effecting the exchange, which were continued until the following May, when the contract was executed. The estimated value obtained for appellant’s property was $51,000. Thereafter the exchange was consummated by the delivery of the deeds in accordance with this ■contract. The indebtedness due to Rogers on the commissions was reduced by the payment of $50, and the claim for the balance ($460) was assigned to plaintiff for value. The appellant’s answer was, in effect, a general denial, .and asserted that the payment alleged was a gratuity given by his father without appellant’s knowledge. On the trial a verdict was rendered for plaintiff for $501.40, being the full amount of the commissions and interest, less-the $50 paid. Defendant appeals from the judgment and the order denying the motion for a new trial.</p>

Blatchfobd, Referee. This action was commenced by the service of a summons in July, 1869. The original plaintiff was Hannah Tobias, the widow of Silas Tobias, deceased. The complaint set up quite a large number of alleged grounds or ■ causes of action. It was not demurred to, and all the issues raised by the pleadings, except such of the same as were abandoned by the plaintiff, were litigated on the trial.

<p>1. Arbitration and Award—The Award—Presumption.</p> <p>The owners of houses made a contract with a company to do certain work therein, and there was a submission to arbitrators of all questions arising and to arise under the contract, including all damages of either party for non-performance, delay, or otherwise. Held, that on an award of a certain sum to the company, reciting that it was made after having heard the proofs and allegations of the parties, no proof to the contrary being shown, it will be presumed that the arbitrators passed upon damages alleged to have been sustained by the company by reason of the owners’ delay, interference, or misconduct.</p> <p>3. Same—Validity—Delivery.</p> <p>In a common-law arbitration, when no time is fixed in which the award is to be made, delivery thereof is not necessary.</p> <p>3. Same—Revocation—By Commencement of Suit.</p> <p>Under Code Civil Proc. N. Y. § 3383, providing that a revocation of an arbitration must be by an instrument in writing signed by the revoking party, commencement of suit in regard to the matters submitted is not a revocation.</p> <p>4. Same—Power of Arbitrators—Allowance of Costs and Expenses.</p> <p>A submission to arbitration, although it does not in terms confer power upon the arbitrators to charge the fees and expenses of the arbitration, vests that power in them as incident to their authority.</p> <p>5. Mechanic’s Lien—Waiver of Right by Submission to Arbitrators.</p> <p>The submission of the matters in dispute under a contract to do work upon premises to arbitration, is a waiver of the right to file notice of mechanic’s lien.</p>

Gulden, Justice. Action for slander, brought by William J. Cruiksbank against William Gorden. Verdict and judgment for plaintiff for @1,600, and defendant appeals. Plaintiff’s complaint alleged, and the proofs showed, the following, among other, expressions used by defendant towards plaintiff: “Dr. Or uikshank would have killed my daughter if I had not discharged him. If you do not get another doctor, you will be your own child’s murderer.

<p>1. Sale—Vendor’s Lien—Possession oe Goods after Protest oe Notes eor Price.</p> <p>If the seller parts with his title to goods, but retains them in his possession until the vendee’s notes given therefor are dishonored, his lien for the purchase money revives, and a creditor of the vendee cannot lawfully take the goods from the seller in disregard of such lien.</p> <p>3. Same—Absconding Purchaser—Right of Seller to Retake Goods.</p> <p>Where a purchaser allows his notes for the purchase price of goods to he dishonored, and he disappears and is not heard of afterwards, it is evidence of insolvency, which will entitle the vendor to retake the goods.</p> <p>3. Same—Rights of Seller— Alternative Relief—Motion to Compel Election.</p> <p>Plaintiffs in replevin alleged in their complaint that they were owners of the property in controversy, hut if on trial it should be adjudged that they were not the owners, that they had a lien for the purchase price. Held, that plaintiffs should not he required to elect before trial on which phase of the case they would seek to recover.</p>

Enos H. Taft, successor to John Todd, assignee in bankruptcy, plaintiff, recovered judgment against Ferdinand Marsily et al., defendants. The general term reversed the judgment, and granted a new trial, and plaintiff appealed to court of appeals, and gave an undertaking for costs and damages. The special term ordered an additional undertaking and $10 costs as a condition of staying appeal. From this order, plaintiff appeals.

On final hearing for an injunction. Action brought by Thomas B. Gilford against the Babies’ Hospital of the-City of Hew York, to restrain defendant from using a certain building on the-corner of Lexington avenue and Forty-Fifth street for an hospital.

<p>1. Mortgages&emdash;Foreclosure&emdash;Reference&emdash;Order to Show Cause.</p> <p>Code Civil Proc. N. Y. § 780, provides that where special provision is not otherwise made by law, or the general rules of practice, a notice of motion must, if personally served, be served at least eight days before the time appointed for the hearing, unless the court, or a judge thereof, makes an order to show cause returnable in less than eight days. In an aotion to foreclose a mortgage, an order requiring defendants, who bad appeared generally, but made default in pleading, to show cause why there should not be a reference to compute the amount due, and judgment upon the report of the referee, may properly be made returnable in three days though section 1~19 provides that a defendant against whom judgment is taken, i~ he has appeared generally, but made default in pleading, is entitled to at least eight days' notice of the time and place of an application to the court for judgment, as the phrase "where special provision is not otherwise made by law "in section 780, refers only to such special provisions as prescribe a shorter notice than eight days.</p> <p>3. Same&emdash;Foreclosure&emdash;Judgment on Report of Referee.</p> <p>In foreclosure suit, an order “that, upon the coming in of the report of the referee, the same be confirmed,, and the plaintiff have the usual judgment of foreclosure and sale, with costs and an extra allowance, without further notice, ” is erroneous, as the question of the propriety of confirming the report cannot be intelligently determined until it is laid before the court, and as defendant, having appeared, is entitled to notice of all proceedings.</p> <p>3. Same&emdash;Foreclosure&emdash;Appealable Order.</p> <p>Such order affects a substantial right of defendant, and is appealable.</p>

F'ish, Justice. This action is brought by Raymond Christman, plaintiff, to recover of defendant, John W. Thatcher, as overseer of the poor of the town of Amsterdam, on a claim of $75 for services claimed to have been rendered by one Timmerman, as a physician, in prescribing and caring for one' Edward Murphy, who, it is alleged, had become chargeable to said town for his relief and support; that the services were performed at the request of said overseer.

<p>Divorce—When Action will be Stated—Adjudication oe Habitual Drunkenness.</p> <p>Under Code Civil Proc. ÍT. M. § 2345, providing that an action to enforce a conveyance of real estate, or of an interest therein, may be maintained against an infant or a person incompetent by reason of lunacy, etc., or habitual drunkenness, to manage his aSairs, an action for separation from bed and board, fonever, on the ground of cruel treatment, will not be stayed because defendant h.as been adjudged an habitual drunkard, and a eommitteebf his estate, but not of his person, appointed, with authority to assist in the defense, as the court having control of the estate can protect it when the question of alimony arises.</p>

<p>Appeal from special term, Erie county.</p> <p>Action by John B. Smith against Abram T. Kerr. Defendant appeals from an order denying his motion for a relaxation of costs.</p>

Action brought by the Hew York Cent. & Hudso.n River Railroad Company ■■and others against the city of Rochester and another to restrain the city from connecting a sewer with a ditch on plaintiff’s land. From the judgment entered on the decision of the Monroe special term, defendants appeal.

Action brought by Robert H. Shankland and Robert H. Shankland, Jr., against Daniel B. Bartlett. The suit was tried before a referee, who found for plaintiffs, and from the judgment entered thereon they appeal.

The proceeding was taken under chapter 368 of Laws of 1886, entitled “An act to authorize the board of supervisors of the county of Niagara to raise by tax and pay money to the city treasurer of the city of Lockport to reimburse the city of Lockport for money paid for laying the Niagara-Street water-pipe, ” and which provides that “the board of supervisors of the county of Niagara are hereby authorized, by a majority vote of said board, to raise by general tax on the taxable…

Ejectment by Angus McDuffie against Adelia Clark. Verdict for defendant. The court ordered the verdict set aside, and a new trial. Defendant appeals from the order.

Action brought by Amanda A. Horthrup against Anson A. Gibbs for a specific contract for the sale of land. The court, at special term, found for plaintiff, and from the -judgment entered on his decision defendant appeals.

Action brought in April, 1887, by Lemuel Herendeen, John P. Frazer, and James B. Gardner, as superintendents of the poor of Ontario county, against Henry G. De Witt on an instrument in writing of which the following is a copy: “Canandaigua, October 9, 1886.

Action by Tette Thalheimer. against Morris W. Lempert, defendant, for rent, in the municipal court of the city of Rochester. Judgment was rendered for defendant, which the Monroe county court affirmed on appeal. From the latter judgment plaintiff appeals.

Action by the Bowery National Bank against the mayor, aldermen, and commonalty of the city of New York to recover the amount of fees due to Alexander V. Davidson for services as sheriff of the city and county for the month of December, 1885. The complaint alleged a written assignment of such fees by the sheriff to the plaintiff in September, 1885, and also a verbal assignment thereof to plaintiff in January, 1886.

The action is for alleged libel, founded upon the publication, October 20, 1884, by the defendant in its newspaper published in the city of Hew York, the following, to-wit: “Refuses to be Reconciled. A Rochester Society Belle Who Insists upon being Married. (Special to the Morning Journal.) Rochester, H. Y., October 19th.

On motion for new trial on exceptions taken at the circuit court, Genesee county. Jerome Gallup, plaintiff, sued Jacob Bernd, defendant, who in January, 1880, purchased a farm of plaintiff, took conveyance, and gave his bond, with a mortgage, on the premises, to secure $11,700 of the purchase money. In April, 1887, the defendant paid plaintiff the amount of the bond and mortgage except $1,364.98.

<p>1. Boundaries—Evidence—Temporary Removal of Fence.</p> <p>In trespass, where the title to a strip of land is in dispute, and plaintiff's evidence-tends to show that such strip is included in the conveyance under which he holds,. but his deed describes one boundary of his land as at a certain place, and defendant claims to that place, and gives evidence that a fence has been maintained on that line for more than 20 years continuously, by consent of the adjoining owners, the question of the true location of the line is for the jury, though there is evidence that the fence was once removed for the purpose of clearing out briers where it was located; such temporary removal not being deemed an interruption of the continued evidence of the line.</p> <p>0. Same—Evidence—Location oe Fence.</p> <p>Under a claim to land by adverse possession, where there is evidence that a certain brush and pole fence was treated by the adjoining owners as a fence on the line, and that claimant’s grantors claimed to it as such, and that their occupation up to that fence was notorious, the question whether such fence was a substantial inclosure is for the jury, though one witness testifies that the fence was made by the then owner of the land without reference to the line, and merely to turn cattle.</p> <p>3. Same—Adverse Possession—Inolosure of Premises.</p> <p>Although Code Civil Proc. N. Y. § 372, provides that to constitute an adverse possession the land shall have been “protected by a substantial inclosure, ” the fact that a portion of one end of a narrow strip of land lies open to the highway will not defeat a claim to such land by adverse possession, where it appears that the entire length of the strip was within the fences inclosing the premises owned by the claimant, and was cultivated as part of such premises.</p>

On exceptions from circuit court, Erie county. Action on a promissory note by the Bank of Attica, of Buffalo, H. Y,, against the Pottier & Stymus Manufacturing Company, as alleged indorsers, impleaded with Charles H. Andrews, maker. Verdict for plaintiff, and the defendant corporation moves for a new trial, which motion is heard at general term in the first instance.

Action brought by George Gerhardt against Brnst Sparling. On trial the court directed a verdict for plaintiff, and from the judgment entered thereon, and an order denying a new trial, defendant appeals.

Action by Mary J. Conolly against John O’Connor upon a promise to pay for the care of a bastard child. The defendant died, pending the action, and Mina B. O’Connor, his administratrix, was substituted. The defendant appeals from an adverse judgment.

<p>Appeal from circuit court, Niagara county.</p>

<p>Deed—Description of Grantees—“Heirs” of Living Person.</p> <p>A deed of land to “the heirs of” the grantor’s son, reserving to the grantor the use and control of the premises during his life, and to his wife during her life in case she survives him, and also reserving to his son the use of the premises during his natural life, being made subject to a judgment which the son agrees to pay, is not void; it being sufficiently clear from the deed that by the term “ heirs ” is meant those who would be the heirs of the son should he then die.</p>

<p>Husband and Wife—Actions—Lumber Purchased by Husband to Build House on Wife’s Land—Breach of Warranty.</p> <p>A husband, who, while building a house for himself and family, purchased lumber, taking a warranty of quality, is entitled to set up the warranty in defense to an action for the price, and counter-claim damages for its breach, although he was building the house on his wife’s land.</p>

Action by Reuben 0. Smith, against Henry W. Ferine and J. Foster Parkhurst to set aside an assignment made by Ferine to Farkhurst for the benefit of creditors.- Judgment for defendants, and plaintiff appeals.

Action brought by Cyrus T. Cooke against the Odd Fellows’ Fraternal Union, Florus F. Dieffenbacher, and others, to foreclose a mechanic’s lien. Trial before a referee, who found for plaintiff, and from the judgment entered thereon the Odd Fellows’ Fraternal Union appeals.

<p>Appeal from special term, Monroe county.</p>

Action by George W. Eighme against Mary S. Strong and others, executrix, etc., of John C. Strong, deceased, upon a claim against the estate of the testator. The claim was allowed, and defendants appeal from an order denying a motion for a new trial upon case and exceptions.

Action by Sidney Cushing and others against Moses Buslander and others to have declared void confessed judgments, and a general assignment with preferences, made by defendant Buslander, as alleged, in fraud of plaintifE Cushing and other creditors. An order was made granting a temporary injunction, and defendants appeal from a refusal to vacate and set aside the injunction.

On motion for new trial on exceptions ordered to be heard at general term in the first instance. Action by the Farmers’ national Bank of Franklinville against Van Slyke and Snyder upon two promissory notes made by Van Slyke and indorsed by Snyder. ■ At the conclusion of the evidence the court directed a verdict for plaintiff, and Snyder moved for a new trial.

<p>Libel and Slander—Actionable Words—Imputing Unohastity to Married Woman.</p> <p>Words spoken of plaintiff, a married woman, and of a married man, other than her husband, charging them with being in a store together alone, with the curtain drawn, behind the counter, with their arms around each other, embracing, and that, when discovered, they seemed much confused, are actionable, as imputing unchastity to plaintiff; and under Code Civil Proc. N. Y. § 1906, special damage need not be alleged.1</p> <p>1 To falsely accuse a married woman of prostitution is slander per se. Klewin v. Bauman, (Wis.) 10 N. W. Rep. 398; Rhoades v. Anderson, (Pa.) 13 Atl. Rep. 823. Charging any woman with fornication or adultery, whether by direct words or by imputation, is slander per se. Buscher v. Scully, (Ind.) 5 N. E. Rep. 738; Boldt v. Budwig, (Neb.) 28 N. W. Rep. 280; Stoke v. Miller, (Pa.) 5 Atl. Rep. 631. See Page v. Merwin, (Conn.) S Atl. Rep. 675.</p>

<p>1. Theaters and Shows—Agreement to Alter a Play Satisfactorily to Actor.</p> <p>When a playwright agrees to write or alter a play to the satisfaction of an actor, the latter is not obliged to pay for it unless it is satisfactory to him.1</p> <p>1See Singerly v. Thayer, (Fa.) 2 Atl. Rep. 280, and note; McClure v. Briggs, (Vt.) Id. 583, and note; Seeley v. Welles, (Fa.) 13 Atl. Rep. 736, and note.</p> <p>2. Saids—Forfeiture of Play—Waiver by Playwright.</p> <p>The forfeiture of a play, unless the installments are paid according to the contract, is for the sole benefit of the. playwright, and may be waived by him. (Syllabus by the Cowrt.)</p>

Freedman, Judge. Action by Horace Secor, Jr., George W. Bergen, and Charles B. Page against Lemuel B. Clark. On suggestion of defendant’s death, the cause was revived against Mary J. Clark, as executrix, etc., of Lemuel B. Clark. From a judgment dismissing the complaint on the merits, plaintiffs appeal.

Action by Anna Rott against the Forty-Second Street & Grand Street Ferry Railroad Company for personal injuries sustained through negligence of defendant’s servants. On March 22, 1886, plaintiff accompanied her daughter to see her on board defendant’s car. The car stopped, and they both got on the platform, where the conductor was, and where he remained until after the accident.

Action by Stephen A. West against the Manhattan Bailway Company to recover damages whicli plaintiff alleged were caused by defendant’s negligence.

Action by Amos B. Eno against the Metropolitan Elevated Bailroad Company, on an award of damages in condemnation proceedings. In 1879, in condemnation proceedings by defendant to acquire property belonging to plaintiff, the commissioners appointed awarded for one parcel $526.50, to unknown owners, and for another $4,562.50, to the plaintiff as owner, or to persons interested.

Action brought by John H. Maginnis, by guardian, against the city of Brooklyn. Verdict and judgment for plaintiff, and defendant appeals.

Action by Martin J. Cummings against Isaac T. Vanderbilt to recover, for services as a broker in effecting a sale of merchandise, the sum of $471.50, with interest from October 26, 1883. The defendant answered by a general denial, accord and satisfaction, and payment.

<p>1. Ceiminal Law—Appeal—Review—Objections to Evidence.</p> <p>Where the prosecuting witness on a trial for larceny is asked whether he mentioned his loss, and, after answering, objection is made, and the court directs the witness to state what he did, and he again states what he said, to which objection is made, and he is then asked whether he informed the family of the loss, to which, after answer, objection is made, and exception taken to the ruling that it is admissible, and no other exception is taken, and no motion to strike out is made, the general term will not reverse, though Code Grim. Proc. § 537, empowers it to grant a new trial where justice requires, whether exception shall have been taken or not.</p> <p>3. Laboenx—Evidence—Suphciencx.</p> <p>On the trial of an indictment for larceny of money from the trunk of H., it appeared that defendant and H. lodged together, and that defendant knew that the' money was in the trunk in their room, and knew where the key was; that, on the day on which the money was missed, defendant went to A„ to which place he was followed by H., and was accused of stealing the money, but denied the charge, and submitted to a search; that defendant then promised to return with H. to their lodgings, but failed; that afterwards H. received a letter from defendant dated at De, trait, in which the defendant denied that he took or had the money, but stated that he knew where it went to, and would pay it as fast as he could earn it; that he would say no more about it if he had to be hung for it; and that at A. he wanted to tell H. something about it, but could not. At the trial, defendant stated that he thought S. stole the money, but the evidence tended to show that S. was not in the room, and did not have access to it during the week in which it was stolen. Held, that the evidence was sufficient to sustain a conviction.</p>

Action by William Howard against the Northern Central Bail way Company for personal in j uries. Defendant company appeals from a judgment for plaintiff, and order denying the motion for a new. trial.

Ingraham, Justice. This action was begun by Thomas M. Peters against the mayor, etc., of the city of New York, and George W. Oarleton, impleaded, to recover the award made to property owners for damages by reason of the closing of Bloomingdale road. Plaintiff was the owner of certain premises abutting upon said road from a time prior to 1867 down to April, 1869, when he sold to defendant, Oarleton.

<p>Corporations—Action by Stockholders to Cancel Mortgage Bonds—Pleading.</p> <p>A complaint by a stockholder of a corporation seeking to enforce a right of the corporation to have certain bonds issued by it, and the mortgage given to secure the same, canceled,' is defective on demurrer if it does not contain an offer to restore to the holders of the bonds what the corporation has received therefor.</p>

<p>Appeal from special term, New York county.</p>

Action brought by John I. Lawrance and William E. Thorn, as surviving executors of the will of William T. Garner, deceased, against Mareellite T., Florence J., and Edith M. Garner, for a settlement of the accounts of plaintiffs, as executors and trustees of the will. William T. Garner died July 20, 1876, leaving a will by which he appointed Samuel W. Johnson, John I. Lawrance, and William E. Thorn, executors of his will, and directed: “Second.

0. Dykman, Justice. Application for an order directing Bradford R. Gilbert, defendant in an action for divorce instituted by Cora R. Gilbert, to pay an additional allowance to plaintiff’s attorney. ■ Plaintiff filed an affidavit that she was entirely dependent upon thé temporary alimony previously awarded her, and that it was insufficient for her support.

<p>1. Municipal Corporations—Obstructions in Street—Province op Jury.</p> <p>In an action against a city for injuries sustained by plaintiff being overturned in bis sleigh by driving over a pile of rubbish in the street, the evidence for plaintiff was to the effect that, as he was slowly driving up to tne curb-stone-to alight, Ms wife and sister being with him, after dark, without observing the obstruction, he was upset, and seriously injured. The street was a frequented one, and plaintiff had never noticed an obstruction there before. The rubbish was a pile of garbage about two feet high and six or eight feet long, and had been there three weeks. On the'part of defendant there was evidence that no such pile existed, or, if any, that it was too small to have produced the accident. Seld, sufficient evidence to justify the jury in finding the city guilty of negligence.</p> <p>3. Same—Evidence—City Ordinances.</p> <p>In such action, a section of defendant’s ordinnaces, providing that the mayor, a member of the council, the city commissioner, any street commissioner, street inspector, or the police of the city should be authorized to order any obstruction removed from the streets, and, in case of the person causing such obstruction failing to remove the same, it should be the duty of such city commissioner, inspector, or police to cause it to be removed, was properly admitted as evidence for the plaintiff.</p> <p>. 3. Same—Extent op Injuries—Complaints op Pain.</p> <p>Evidence that plaintiff, when taken out in a carriage some weeks after the accident, complained of pain, was properly admitted.*</p> <p>'Where it becomes important to illustrate the physical or mental condition of an in- . dividual, either at the time an injury is received, or from thence to the time of an inquiry as to its severity, effect, and nature, expressions or declarations of present exist.ing pain or malady, whether made at the time the injury is received or subsequent to .it, are admissible In evidence. Railway Co. v. Newell, (Ind.) 3 N. E. Rep. 836; Railway Co. v. Falvey, Id. 887; Turnpike Co. v. Andrews, (Ind.) 1 N. E. Rep. 36i; Railway Co. -y. Wood, (Ind.) 14 N. E. Rep. 573; Bridge v..City of Oshkosh, (Wis.) 37 N. W. Rep. 409.</p> <p>•4. Same—Evidence—Relevancy.</p> <p>In such case, a question asked plaintiff on cross-examination as to whether his wife had also instituted an action against the city for the same accident was properly excluded.</p> <p>."5. Same.</p> <p>Plaintiff, on cross-examination, being asked whether he did not, as soon as he was injured, go to work to commence a lawsuit against defendant for the injuries, the question was properly excluded.</p>

<p>Costs—Extra Allowance—When Granted.</p> <p>An action upon 19 causes of action acquired by plaintiff by assignment from the different persons in whose favor they were alleged to have existed, involving over $30,000, besides a large arrearage of interest, requiring an examination into the particular facts of each cause of action, is a difficult and extraordinary cause of action, within the meaning of the provision of the Code of Civil Procedure, authorizing an extra allowance in such case; and an extra allowance of $500 to defendant, who has succeeded upon 10 of the causes of action, will not be disturbed.</p>

This is the same action as the preceding case, (page 537,) and is an appeal by plaintiff from an order denying a motion for a relaxation of defendant’s costs, and is published to explain House v. Lockwood, post, 540. The appeal was argued before Van Brunt, P. J., and Brady and Daniels, JJ.

Hew York county. Action by William M. House against John L. Lockwood and another. Judgment for defendants dismissing complaint, with costs. Plaintiff appeals from an order affirming the clerk’s adjustment of costs.

Black, Referee. Action to recover possession of real estate, brought by Henrietta Aldrich against Margaretta Funk and others. Judgment for defendants, and plaintiff appeals.

Black, Referee. Action to recover possession of real estate, brought by Henrietta Aldrich against William D. Green and wife. Judgment for defendants, and plaintiff appeals.

<p>Appeal from special term, New York county.</p> <p>On certiorari to review an assessment for the purposes of taxation. The respondents, tax commissioners for the city and county of New York, appeal from an order of reference to take proofs, and return them to the court, and for a stay of proceedings. The facts and points involved are the same as those in People v. Coleman, ante, 112; the only difference being as to the amount involved.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action on promissory notes, brought by Chloe M. Norton against William Norton, as administrator of Philander H. Norton. Defendant appeals from a judgment in favor of plaintiff.</p>

<p>1. Statutes—Construction—Authority of Railroad Company to Purchase Canal —Power to Convey.</p> <p>Laws ÍT. Y. 1880, c. 326, providing for the sale, to a railroad company, of the Genesee Valley Canal, and dividing the canal into three sections,—one between the village of Mount Morris and that of Cuba, another between Mount Morris and one terminus of the canal, and the third between Cuba and the other terminus,—authorized a sale and conveyance to the purchasing company of the entire line of the canal, including that portion within the limits of the village of Mount Morris.</p> <p>2. Eminent Domain—Taking of Land by State—Reversion to Owner.</p> <p>Land having been appropriated by the state for the purposes of a canal, and the appraisal made pursuant to the statute, the state takes the fee of the land, as provided by 1 Rev. St. 226, § 52, and the abandonment of the canal produced no reversion to the former owners.</p> <p>3. Limitation of Actions—Running of the Statute—Claim Adverse to the State.</p> <p>Although it appears that defendant and his grantors had for more than 40 years been in possession and occupancy, claiming title to certain land that had been appropriated by the state for the purposes of a canal which had since been abandoned, such possession and occupancy vests no right to the land in defendant as against the state or its grantee, if the land constituted the bank of the canal, and was necessary for its support and maintenance, and the state had, within that period, been in the receipt of the rents and profits of the canal; the statute of limitations (1 Rev. St. pt. 3, c. 4, tit. 2, §§ 1, 3; Code Proc, § 75; Code Civil Proc. § 362) providing that the state and its grantees shall not sue for lands, etc., unless the right or title of the state shall have accrued within 40 years, or that the state, or those under whom it claim, shall have received the rents and profits of such real estate, or some part thereof, within that period.</p> <p>4. Trial—Findings—Sufficiency of Evidence to Support.</p> <p>A finding that a certain piece of land in dispute that had been appropriated by the state for the purposes of a canal, which had since been abandoned, “was, and for more than 40 years had been, in the occupancy and possession of the defendant, claiming title, ” and “that the premises do not appear to have been actually used and occupied by the state at any time since the construction of the canal, ” is not inconsistent with evidence that the land in question constituted the bank, and was necessary for the support of the canal, of -which the state had been in receipt of the rents and profits.</p>

Action by board of supervisors of Erie county against Henry B. Jones, to recover fees and commissions received by him as county treasurer, and not paid over to the county. Defendant appeals from a judgment in favor of plaintiff.

Appeal by the executor of James Wiltsie, deceased, from a decree of the surrogate’s court of Cattaraugus county, allowing the claim of Malvina Wiltsie against the estate of said decedent.

<p>Appeal from circuit court, Brie county.</p>

M. Cullen, Justice. Laws H. Y. 1874, c. 326, § 5, provides that “no warrant shall be issued or required for the collection of any assessments under this act; nor shall any warrant be issued for any sale of lands for non-payment of such assessments until ten years after the filing of such assessment roll.”

F. Barnard, Justice. Action for damages by George W. Townsend against Thomas Minford, tried, by cónsent, without a jury. Plaintiff appeals from a judgment in favor of defendant.

<p>Wiles—Construction—When Legacy Vests—Time of Payment.</p> <p>Under a will directing that, alter the payment of certain legacies, the residue of testator’s estate should be invested for the benefit of his widow, to whom the interest was to be paid during her life, and after her death the entire estate was to be divided into five equal shareSj one of which was to be paid to testator’s grandson, and, in case of his death, to his children, the legacy to the grandson vests upon the death of the testator; the time of payment being postponed to subs.erve the interests of testator’s widow, and a judgment obtained against him in favor of the estate is properly deducted from the share to be paid to his children, he having died before the widow.</p>

Code Civil Proc. IsT. Y. § 2603, provides that a decree revoking letters of an executor may, in the surrogate’s discretion, require such executor to account for all money received by him, and to deliver over all money in his hands into the surrogate’s court, or to his successor in office.

<p>Judgment—By Default—Reopening.</p> <p>Where it appears that none of defendant’s rights have been impaired, but that every right that he could possibly establish on a trial has been carefully preserved in an interlocutory decree, a judgment by default will not be opened.</p>

Action by William F. Lawrence and James V. Lawrence against Alvin W. Harrington, for the amount of certain notes made by plaintiffs for the accommodation of defendant’s firm, Bousseau & Harrington. There was a judgment for plaintiffs, and defendant appeals.

Appeals from special term and circuit court, New York county. This action was brought by Winston Jones, as assignee of the Bank of Mobile, against the Merchants’ National Bank of the City of New York, to recover a sum of money, balance of a deposit with defendant, and possession of certain bonds and coupons. The court directed the verdict for the plaintiff, which is set forth in the opinion.

At chambers. On motion to amend. Action by John Gr. McICane against the Democratic general committee of Kings county for restoration to membership.

<p>Appeal from circuit court, Dutchess county; T. F. Barnard, Justice.</p> <p>Action by Laura P. Baxter against James Baxter, her father-in-law, upon a promissory note for $550. The evidence of defendant directly contradicted that of plaintiff, not only on the question of the execution of the note, but upon the payments testified to by plaintiff. Verdict for defendant, and judgment thereon, from which plaintiff appeals.</p>

Action by Terence O’Reilly against the president and trustees of the village of Sing Sing for personal injuries resulting from a defective walk. Verdict and judgment for plaintiff. Defendants appeal. The facts proved were that a flag-stone in one of the walks of the village became misplaced by a rainstorm, and plaintiff, who was 82 years old, but whose eye-sight was good, on a bright, sunny day, fell into the hole and was injured.

Action brought by Sarah A. Barton and Elizabeth B. Sabin, as administrators of the estate of Joseph McChesney, deceased, against Margaret McChesney and the People’s National Bank of Malone. The jury returned a verdict for defendants, and from the judgment entered thereon plaintiffs appeal.

<p>Appeal from judgment on report of Scott M’D. Goodwin, Beferee.</p> <p>Plaintiff, Harvey B. Swan, presented a verified claim against David L. Brewster and Christopher FTisch, administrators of the estate of Augustus Brewster. The claim contained 15 items, and, being disputed by the administrators, it was referred to Scott M’D. Goodwin, referee, to hear and determine the same. He reported against all the items except the sixth and seventh, which he allowed; and from the judgment entered on his report the defendants appealed. The items allowed were for horses sold the deceased by plaintiff.</p>

<p>Appeal from Warren county court; A. J. Cheritree, Judge.</p> <p>Action by Lewis Shields against Theodore F. H. Meyer, to recover the amount of an order for merchandise drawn by defendant upon plaintiff in favor of Henry Granger. J udgment for plaintiff, and defendant appeals.</p>

Appeal'from special term, Bensselaer county; Ingalls, Justice. Action brought by John S. Barry against G. Parish Ogden, J. Prank Calder, and Gduverneur Ogden, doing business as Ogden, Calder & Co., and the firm of Work, Strong & Co., for the conversion of personal property. J. Frank Calder and Gouverneur Ogden were arrested on an order granted to accompany the summons.

<p>Befebenoe—May be Had, When—Action fob Money Lost on a Wages.</p> <p>An action to recover money lost on a wager does not arise out of contract, either express or implied, and a reference, being permissible only in actions ex contractu, cannot be had therein.</p>

Action by Catharine E. Sargeant to foreclose a mortgage made by Marguerite Yenne and Louis Yenne, her husband; William D. Mead, Jr., and Lena Mead, his wife, William D. Mead and Charlotte Mead, his wife, JulietBrown and Horace W. Brown, as administrators of Isaac Brown, being made defendants as subsequent purchasers or incumbrancers.

<p>Appeal from special term, Saratoga county; Charles O. Tappan, Justice.</p> <p>Action brought by Leocadio A. V. Cassagne against James M. Marvin and John Tayler Hall, as trustees of the United States Hotel, at Saratoga Springs. The case was tried before the court without a jury, and judgment for plaintiff,-from which judgment defendants appeal. 1 Rev. St. p. 730, § 63, is as follows: “Ho person beneficially interested in a trust for the receipt of the rents and profits of land can assign or in any manner dispose of such interest; but the rights and interest of every person for whose benefit a trust for the payment of a sum in gross is created are assignable.”</p>

F. Brown, Justice. Motion by the people ex rel. Augustus B. Goodale against the board of education of Deer Park for an alternative writ of mandamus. Motion denied, and relator appeals. Laws 2ST. Y. 1864, e. 555, as amended, (Laws 1875, c. 567,) provide that no business shall be transacted at a special meeting of the voters of a school-district except that which is specified in the notice of the meeting.

Parker, Judge. Action by John F. Lawyer against Frank Rosebrook, Mary A. Rosebrook, George M. Uye, and others, to charge defendants individually as stockholders of the “Perfect Hatcher Company, Limited,” with the payment of a judgment recovered by plaintiff against that corporation.

Mayham, Justice. Action by John B. Kunz, administrator, etc., of George W Kunz, deceased, against the city of «Troy, to recover for the death of plaintiff’s intestate, who was killed by a counter falling on him which was standing on the sidewalk in Federal street, Troy. The counter was a bar-counter, such as are used in saloons, and had been placed on the sidewalk by the owner in front of his saloon, leaning against the building.

On case agreed. Submission of controversy on case agreed, by Julius Goldman against Carrie S. Kennedy, for specific performance of a contract whereby plaintiff agreed to sell to defendant, and defendant agreed to purchase, certain real estate in the city of New York. Code Civil Proc. N. Y § 1471, as amended by act of June 18, 1886, reads as follows: “Sec. 1471. When and by Whom Conveyance to be Executed.

Action by Frederic I. Cooper against George S. Weston and others to recover certain securities misappropriated by plaintiff’s trustee, and sold to defendants. Judgment was for defendants, and plaintiff appeals.

Action by Charles C. Southard against the Franco-American Trading Company. The defendant appeals from an order referring the inquiry in this action back to the referee to ascertain and report the amount due to the counsel for the receiver for his costs and disbursements, etc., in the prosecution and settlement of two actions, and permitting the referee to take the testimony of other witnesses.

<p>Assignment eor Bemeit of Creditors—Acceptance—Subsequent Repudiation.</p> <p>Where certain creditors have accepted án assignment, and called on the assignee to carry out the trust therein contained, they cannot attack its validity unless such election is made under mistake of fact, though the assignment is under seal, and the acceptance is not.</p>

<p>Corporations—Execution op Note by—Finding by Jury.</p> <p>In an action against a corporation on a promissory note, signed by one whom the evidence tended to show was delendant’s secretary, and impressed with a stamp which appeared to have been used as the seal of the company, there was evidence that plaintiff had advanced to defendant the amount for which the note was given. Held, that a finding that defendant had executed the note in consideration of money loaned to it will not be disturbed.</p>

Action brought by Denman W. Beardsley and another against Martin G. Johnson and others, to enforce defendants’ liability as subscribers to the stock of the Eastern Bailroad Company of Long Island, in order to pay a judgment recovered against that company. The case was tried before the court without a jury, and a decision rendered in favor of defendants, dismissing the complaint. From the judgment entered in the case plaintiffs appeal.

Ruggles, Referee. Action brought by Hugh McCullough and others against Chaunoey Yibbard and others for an accounting and the appointment of a receiver. After the cause was at issue, plaintiffs offered to discontinue without costs; but defendants, having put in a counter-claim, refused to agree. The ease was referred to a referee, and on the hearing plaintiffs refused to put in any evidence.

<p>Appeal from special term, Hew York county; George L. Ingraham, Justice.</p> <p>Appeal by Eliza J. Thomas, widow of Daniel Webster Thomas, deceased, from a judgment construing the will of said decedent.</p>

Barrett, Justice. Action for personal injuries by Catherine Cowan against the Third-A venue Railroad Company. Verdict and judgment for plaintiff for $1,750, and defendant appealed.

<p>Appeal from circuit court, New York county; George C. Barrett, Justice.</p> <p>Action by Elias Wasson against John Pettit for personal injuries. Judgment for plaintiff, and defendant appeals.</p>

Andrews, Justice. Action by Ruth Torbett against Sherburne B. Baton to enforce a liability as director of the American Opera Company. Plaintiff demurred to the second defense set up in the answer. Demurrer sustained, and defendant appeals.

<p>New Trial—When Refused—Verdict on Conflicting Evidence.</p> <p>Where the question was whether plaintiff agreed to give up the note of a third party in consideration of the note in suit, and refused to do so on demand, and the evidence of the parties was flatly contradictory, the question having been clearly and correctly presented to the jury, their verdict is conclusive, and a new trial will he denied.</p>

Petition and notice of motion against George H. Poster, an attorney, by William M. Burgin and five others, to recover the possession of certain warrants of the United States treasurer in favor of each of the petitioners, on judgments recovered in their favor by defendant.

Plaintiff, Enos H. Taft, successor to John Todd, as assignee in bankruptcy, at special term, in May, 1887, recovered a judgment against Ferdinand Marsily and others, awarding to him the possession of a certain United States treasury draft, and enjoining the defendant Marsily from making any disposition of the same. The defendant appealed from the judgment. On the appeal the judgment of the special term was reversed, and a new trial granted.

Lawrence, Justice. Action by Hathan Hobart against Lewis F. Martin and Horman Peck, during the pendency of which Peck died. From an order reviving the action against George Leask, executor of the last will and testament of said Peek, and refusing a severance of the action as to said defendants, said Leask appealed.

Donohue, Justice. Action by Francis Pares Osburn, Charles Spencer Osburn, William Osburn, and Robert Arthur Osburn against William C. Rogers, upon an account stated. Judgment being entered by default against defendant, he moved to set the same aside, which motion was denied, and defendant appealed.

Action by James J. Phelan to foreclose a mortgage made by John B. Murphy, July 23, 1886, and recorded the next day.

Action by the Sprague National Bank of Brooklyn against Peter Haulenbeek on a promissory note. Judgment upon the verdict of a jury was entered for plaintiff, and defendant appeals.

<p>Conversion—Of Real Estate by Will—What is.</p> <p>A will directed the executrix and executors to divide the residuary estate, real and personal, into three equal parts, devising one of the parts to testator’s wife, and the other parts to the executrix and executors, in trust for testator’s two sons, to “invest, and keep the same invested, in bonds and mortgages on productive real estate, or in United States or state bonds or - securities. ” It was further ordered that, in making such division, an undivided one-half of a designated tract of real estate be included in the share devised in trust for one of his sons at a stated valuation, the other half to be included in the share of the other son at the same valuation. It was also ordered that testator’s wife should have the privilege of taking another designated tract as a portion of her share at a stated valuation. Held, such provisions did not cause an equitable conversion of the lands into personalty, nor contemplate a sale of the same; there being no showing that an actual partition was impracticable.</p>

<p>Appeal from special term, Hew York county; George C. Barrett, Justice.</p>

Andrews, Justice. Action by Esther Donner, an infant, by next friend, against Clinton Ogilvie and Ida M. Ingersoll, individually and as executor and executrix of William H. Ogilvie, deceased, Benjamin E. Hahn, and Henry Schumacher, for injuries received from a fall from a platform on defendants’ premises. A demurrer to the complaint was overruled, and defendants appealed.

Action by William H. Bamscar against Elbridge T. Gerry for libel. From a judgment dismissing the complaint, on the ground that it did not state facts sufficient to constitute a cause of action, plaintiff appeals.

<p>Wills—Construction—When Legacy is Payable.</p> <p>A beneficiary under a will bequeathing a fund to a trustee in trust to invest the same, and pay over the ineotne, is entitled to such income from the time of testator’s death, where the trust fund had been invested by testator, and had yielded income from such time.</p>

<p>Appeal—Review—Sufficiency of Evidence.</p> <p>On the trial of a police officer for being so intoxicated as to render him unfit for duty, he testified that he was taken with cramp in the stomach, and sent to a drugstore for medicine, and that it overcame him, and made him stupid. He stated that he sent a young man for the medicine, but was unable to state who or where he was; saying he had never seen him before. Held that, the witness being interested in the result, the action of the commissioners in dismissing him would be sustained, though there was no evidence contradicting his explanation.</p>

On certiorari to board of police commissioners. Certiorari brought by William Gibson to review the action of the police commissoners of Hew York city in removing him from the police force.

Action by Isaac J. MaeCabe against Stephen W. Jones, as executor. The case was tried before the judge without a jury, who found for defendant, and plaintiff appealed.

<p>Appeal from circuit court, Hew York county.</p> <p>Action by Charles Dibb against the Dry-Dock, East Broadway & Battery Railroad Company for damages for personal injuries. Complaint dismissed, and plaintiff appeals.</p>

<p>1. Office and Officer—Action against, before Justice—Naming Defendant in Complaint.</p> <p>A summons in a justice’s court described defendant as “ commissioner of highways in the town of Wells.” In the title of the written complaint he was described in the same manner, but in the body he was called “ defendant, ” not mentioning name or title. There was also a special allegation that “the board directed that money should be raised to pay plaintiff, and that the same was paid defendant to pay plaintiff. ” Helci, that the action was brought against defendant in his official capacity.</p> <p>3. Bridges—Contract to Repair—Authority of Commissioners.</p> <p>In an action against a commissioner of highways for repairing a bridge, where the contract was let under the authority of Laws 1858, c. 103, as amended by Laws 1863, c. 443, which provides that, where a bridge is damaged by the elements oi" otherwise, after a town meeting, the commissioners, with the consent of the board of town auditors, may immediately cause it to be repaired, the commissioner cannot set up the defense that the bridge was not damaged after the town meeting.</p>

<p>Wills—Construction—Legacy Charged upon Land.</p> <p>A testator devised lands to his daughter, “subject to the condition that she fully pay and discharge all my funeral expenses, ” and also pay to another daughter S50, all to be jjaid within 60 days ai his decease. Meld, that the land was not devised on condition, but was charged with the funeral expenses and legacy of $50.1</p> <p>1 See note on next page.</p>

<p>Courts—Jurisdiction—Distribution of Funds in the Hands of the Court.</p> <p>A testator devised mortgaged premises to his wife for life, remainder to his children and a step-daughter. On foreclosure sale, a surplus was left after satisfying the mortgage debt. The purchaser, upon repayment of the purchase money with interest and expenses, conveyed the premises under order of court to the committee in lunacy of the widow, who, upon her discharge, conveyed to the widow herself to receive the rents during her life, and upon her death the land was to be held subject to the further order of the court. Seld, that the court has jurisdiction, upon the death of the widow, of an action by the heir of the step-daughter against the heirs of the widow praying for a distribution of the money invested in such realty, it being in the custody of the court.</p>

<p>Appeal from special term, Hew York county; Charles Donohue, Justice.</p> <p>Action, brought by the Broadway & Seventh-Avenue Railroad Company against the mayor of Hew York city to restrain the defendant from enforcing an ordinance regulating the use of snow-plows on plaintiff’s railroad. From an order granting an injunction pendente lite defendant appeals.</p>

<p>1. Partnership—Purchase by One Partner of Another’s Interest—Action fob Price—Counter-Claim of Expenses before Sale.</p> <p>Plaintiff’s intestate, defendant, and another person were engaged in farming in partnership. Deceased agreed to sell Ms interest for a certain sum to defendant. Afterwards, as a further consideration, and in order to deprive the other partner of Ms interest, it was agreed that defendant should obtain title by the foreclosure of a mortgage, the deceased agreeing not to bid against defendant at the sale. This arrangement was carried out. Held, in an action for the price of the partnership interest, that defendant could not setup, as a counter-claim, his expenditures made in the partnership business prior to the purchase of the deceased’s interest.</p> <p>2. Mortgage—Foreclosure—Parties.</p> <p>Nor could he plead as a defense that the third partner was not a party to the foreclosure proceedings, as he was not named as a grantee in the deed by which they held, and as the deceased only agreed to sell Ms interest, and not that of his partner.</p> <p>3. Frauds, Statute of—Contracts Relating to Sale of Land—Executed.</p> <p>Nor could he interpose the defense that the contract to purchase, not being in writing, was within the statute of frauds, asr the agreement had been carried out and he had the property.</p> <p>4. Witness—Competency"—Transaction with Deceased Person.</p> <p>Evidence of defendant that he contributed more than his share in the expenses of managing the farm is inadmissible, because it involves a transaction with a deceased person; and, for the same reason, evidence of what deceased said at the time a declaration of trust was made in favor of the other partner is also inadmissible.</p> <p>5. Same—Extrinsic Matters.</p> <p>A witness for plaintiff, an administrator, testified that he was present when the contract was made; that defendant then agreed to pay the deceased a certain sum for his one-ttird interest in a farm owned by them. Defendant, as a witness, was asked if he promised deceased, in presence of this witness, at that time, to pay the sum. stated for deceased’s one-third interest. Held, that the answer was properly excluded, as it related to a transaction, with a deceased person, and not to extrinsic matters.</p>

Eliza Schluter, administratrix, sued the Bowery Savings Bank to recover a deposit of her intestate. Judgment for defendant, and plaintiff appeals.

The people ex rel. Henry Farley bring certiorari against John D. Crimmins et al., commissioners, etc., to review their decision removing the relator from the police force of the park department.

<p>Certiorari to the commissioners of the police department.</p> <p>The People ex rel. Patrick J. Flynn bring certiorari to review the decision of the commissioners removing the relator from the park police force. The facts in this case are the same as in People v. Crimmins, ante, (556.</p>

<p>Appeal from special term, New York county; Morgan J. O’Brien, Justice.</p> <p>Action by the Bank of Montreal against Patrick J. Gleason, John J. Kiernan, William P. Sullivan, and Albert Prank, to subject the profits and share of Kiernan to a judgment in favor of plaintiff, and to obtain an injunction against Gleason from disposing of the interest of Kiernan, which had been assigned to Mm pendente lite. Injunction allowed, and defendants appealed. On the motion it appeared that the other partners, Sullivan & Prank, were ignorant of the assignment until long after it purported to have been made; and that the existence of the indebtedness of $22,500 claimed to be the consideration for the assignment was questionable. Code Civil Proc. N. Y. § 1871, provides that, upon the return of an execution unsatisfied, the judgment creditor may maintain an action against the debtor and any other person to compel the discovery of anything in .action, or of any money or property due him, or to prevent the transfer, payment, or delivery thereof to him, or to any one else; and provides for the application of such property to the satisfaction of the debt.</p>

Action by the Mechanics’ & Traders’ National Bank, assignee of Michael Gavin, against the city of New York; Cornelius J. Winant afterwards becoming a defendant. From a judgment on a report of a referee Winant appealed.

Board of Education of the City of Hew York against William R. Grace et al., constituting the board of estimate and apportionment for the city of Hew York. Motion denied, and petitioner appeals.

Action for damages by Julia Rompillon against Warren G. Abbott. Verdict and judgment for plaintiff. Defendant’s motion for new trial denied, and he appeals.

<p>Appeal from circuit court, Hew York county.</p> <p>The Citizens’ Hational Bank of Davenport, Iowa, drew 10 bills of exchange on the Importers’ & Traders’ Hational Bank of Hew York to the order of W. C. Wadsworth & Co., who, as to all but two of the drafts, specially indorsed them. Their clerk fraudulently erased these indorsements, and substituted other payees, and also indorsed the others. The drafts thus came into the hands of the Fourth Hational Bank, and were paid to them, by the Importers’ & Traders’ Hational Bank, and returned as vouchers to the Citizens’ Hational Bank, and were again presented for payment, which was refused under claim of former payment. On suit brought, judgment was rendered for plaintiff, and defendant appeals.</p>

<p>Cobpobations—Taxation—Deduction of Debts fbom Amount of Capital.</p> <p>In determining the value of the capital stock of a corporation for the purposes of taxation, the indebtedness of the corporation should be deducted from the real value of the stock, and the tax only imposed upon the balance, provided the balance is not less than 10 per cent, of the capital, which is exempt under the provisions of Laws N. Y. 1857, c. 456, § 3.</p>

On reargument. Action by W. H. Dole and Frank B. Merrill against Charles D. Belden, for the recovery of money due on contract for goods sold, etc. There was judgment for defendant, and plaintiff appeals.

Thomas J. Pope et al., plaintiffs, sued George A. Porter et al. On motion, Samuel Briggs, assignee, was substituted as plaintiff. A motion on petition of the assignee to set aside the order of substitution was denied, and an appeal taken.

Charles H. Stevenson, plaintiff, sued the New York, Lake Erie & Western Railroad Company, defendant. Defendant obtained an order for plaintiff to file security for costs under Code Civil Proc. §§ 3268-3271, providing for filing of such undertaking when plaintiff is a non-resident. On motion, this order was vacated, and defendant appeals.

<p>1. Factors and Brokers—Delegation of Authority.</p> <p>Where plaintiff agrees with, one of a firm to buy and sell stocks on joint account, the purchases and sales to be made by the firm, the latter, when a sale has been determined upon, has a right to employ a subagent for that purpose; and where the stock is sold at the market rates, and the order is faithfully carried out, it is as if made by the firm.</p> <p>8. Equity—Cancellation of Instrument—Promissory Notes—Evidence—Burden of Proof.</p> <p>Where plaintiff has given his note in settlement of an account, in an action to have note declared invalid as given without consideration, the burden is on him to show that the accounts are incorrect.</p> <p>3. Same.</p> <p>Where plaintiff has given his note for a loss made by the sale of stock at his request, in an action to have the note declared invalid as given without consideration, the burden is on him to show that the sale has not been made.</p>

The people of the state of Hew Tork sued Charles H. Rohrs and George Boldt to recover penalties for violation of Laws 1885, e. 183, §§ 7, 8, under section 19, to prevent deception in dairy products. Verdict for plaintiff by order of the court, and judgment on the verdict. Defendants appeal.

Action by Jared A. Timpson against the Manhattan Bailway Company, to recover damages for personal injuries received by plaintiff by slipping upon ice on the platform of one of defendant’s stations. Verdict of $6,000 for plaintiff. Defendant appeals from judgment on the verdict and the order denying motion for new trial.

<p>Appeal from special term, Hew York county; Lawrence, Justice.</p> <p>Action by Charles F. Jacobsen, against Charles Bradley, to cancel a usurious contract. Judgment was rendered for defendant, and plaintiff appeals.</p>

Action for personal injuries by Margaret E. Dillon against the Manhattan Railway Company. There was judgment for plaintiff, and, after a motion for a new trial, defendant appeals.

Action by Albert Clark Squier against James Kearney, William Stainton, and Philip L. Beeves, to prevent the enforcement of certain judgments. On a trial to the court there was judgment for defendants, and plaintiff appeals.

Louis Meyer and others brought an action against Alice Hazard and Walter P. Hess to set aside an assignment for the benefit of creditors made by Hazard to Hess. Plaintiffs were successful, and the matter was referred to Thomas P. Wickes, to ascertain the amount in the hands of the referee. Prom his report defendants appealed to the supreme court at special term, which confirmed his report, and from the order so made defendants appealed to the general term.

<p>Assignment for Benefit of Creditors—Setting Aside for Fraud—Right of Assignee to Commissions.</p> <p>Ii an assignment for the benefit of creditors is set aside on the ground of fraud, and the estate is insufficient to pay the creditors, the assignee is not entitled to the commission of 5 per cent, allowed by Laws 1878, c. 318.</p>

Appeal by Frank Tracy Helson from an order denying a motion to vacate an order of arrest, granted on the application of Hermann L. Ensign. Code Civil Froc. H. Y. § 568, cited in the opinion, and essential to an understanding thereof, provides, in substance, that where a defendant files affidavits in support of his motion to vacate an order of arrest, plaintiff may oppose such motion by new proofs, tending to sustain any ground of arrest recited in the order.

<p>"Wills—Construction—Legacy to Creditor.</p> <p>On a proceeding to enforce payment of a legacy and of a judgment obtained by petitioner against the executor for services rendered to decedent in her life-time, where the executor’s answer alleges that the will recited the bequest to petitioner of a certain sum, “which she is to accept and receive in place of all claims which she may have against me, ” the legacy will be ordered paid on condition that petitioner stipulates to satisfy the judgment, but not otherwise.</p>

An appeal from a judgment of the Cattaraugus county court reversing a judgment rendered in the plaintiffs favor, in a justice’s court, for the sum of $59.33. The plaintiff’s cause of action was for work and labor done and performed for the defendant.

Action by William Bradshaw against Borne, Watertown & Ogdensburg Bail-road Company to recover damages for injuries done to plaintiff’s land by fire, caused, as plaintiff alleged, by the careless and negligent act of defendant in running an engine upon its road which was improperly constructed or out of repair, or negligently and carelessly managed by the engineer in charge on the occasion in question.

An appeal from a judgment of the Monroe county court of sessions entered upon a verdict convicting the defendant, Parsons De Kroft, of the crime of forgery in the second degree, and from an order of the same court denying the defendant’s motion for a new trial. The indictment contained two counts. In the first, the defendant is charged with forging and counterfeiting an instrument in writing, of which the following is a copy: “$25. Rochester, N. Y., January 19, 1887.

A judgment for plaintiff, Francis O’Brien, was set aside on the ground that the referee had, while the action was pending, acted as attorney for some one of the parties in action, wherein plaintiff’s attorneys were referees. The order setting aside the judgment imposed the condition that defendant, Daniel Long, pay plaintiff the costs, including the referee’s fees, which plaintiff had paid. From this portion of the order defendant appeals.

An appeal from a judgment rendered upon the decision of the Ontario •.special term, in an action to foreclose a mortgage, made and' executed by the •defendants, Haney Dixon and John P. Dixon, to George C. Snow, and directing a judgment against them personally for any deficiency that may exist •after applying the proceeds of sale.

An appeal from a judgment entered upon a verdict in the plaintiff’s favor rendered at the Genesee circuit for the sum of $600 damages.

Action on an account brought by John D. Zent against Eobert Watts. Plaintiff bad verdict and judgment, from which, and from an order denying motion for new trial, defendant appeals.

Cynthia McDonald was indicted in Monroe county for manslaughter in the first degree, under Pen. Code 2ST. Y. § 139, while committing the misdemeanor •described in Pen. Code, § 288: “A person who willfully omits, without lawful excuse, to perform a duty by law imposed upon him, to furnish food, clothing, shelter or medical attendance to a minor, is guilty of a misdemeanor. ” Prom a judgment of conviction for the misdemeanor only, defendant appeals.

Action by Andrew H. Frank against George W. Batten, sheriff of ITiagara county, for the conversion of certain personal property claimed by plaintiff, levied upon and sold under an execution against the property of C. H. Turver, in favor of Frank Pinner. Verdict and judgment for plaintiff. Defendant appeals.

This is an appeal from an interlocutory judgment entered upon a decision .rendered at the Livingstone special term.

There was a verdict and j udgment for plaintiff below. Defendant presented a motion for a new trial, which was overruled, and defendant appeals.

On exceptions from circuit court, Monroe county. Action brought by Addison R. Baldwin against Elmendorf Rood. Motion by plaintiff for a new trial founded upon exceptions taken on the trial of the action at the Monroe circuit, and ordered to be heard at general term in the first instance.

<p>1. Trusts—Action to Establish—Setting Aside Deed.</p> <p>In an action to set aside a deed given, without any consideration, by plaintiff to> her brother, it appeared that there was no intentional fraud on the part of the-brother which led to the making of the conveyance, but that plaintiff executed it for the purpose of keeping her property from the control of her husband, who was-endeavoring to have her declared insane. It also appeared that, prior to the execution of the deed, the brother declared that he would do what was just and right, to preserve the property for her use and enjoyment. Meld that, as a confidential relation existed between them, a judgment setting aside the deed should be affirmed.</p> <p>2. Fraudulent Conveyances—By Trustee to Beneficiary’s Husband—Action to-</p> <p>Set Aside.</p> <p>In an action to set aside a deed to her separate property, given without any consideration by plaintiff to her brother, for the purpose of keeping it from the control of her husband, and also to set aside a deed subsequently given by her brother toller husband, the husband cannot urge as a defense that the first deed was given to defraud him of his rights, where there is nothing to show that he had any rights in the property.</p> <p>8. Appeal—Review—Waiver of Objections.</p> <p>In such case, a witness for defendant testified that, when the deed from plaintiff to her brother was executed, the brother gave plaintiff a roll containing bank-bills,, which she counted, and said were all right. Plaintiff testified that it was a roll of' brown paper which was given her; that she made a pretense of counting it, but there was no money in it; and identified a certain package as the identical roll-handed her. Defendant objected that, as the brother was insane, plaintiff was incompetent as a witness, under Code Civil Proc. § 829, prohibiting a party to a transaction from testifying thereto where the other party is insane. The court of its own motion struck out all the testimony except that relating to the identification-of the package, and defendant took no exception. Meld, that defendant thereby-waived all objection to the incompetency of the testimony retained.</p>

<p>Appeal from a judgment on the report of a referee.</p> <p>These were four actions brought by Clinton West against Thomas Van Tuyl, which were consolidated and tried as one.</p>

Harmon Starks was convicted of a violation of the excise law in the court of special sessions, which judgment was affirmed by the Niagara county court, and defendant appeals.

The facts as stated in the report of the former appeal, (42 Hun, 16,) referred to in the opinion, were as follows: “Defendant was a private or individual banker at Scio, H. Y. The evidence tends to prove that on the 5th day of December, 1882, Sliney & Whalen indorsed and presented a note made by Knox Bros, for $3,500, to the defendant’s bank for discount, and that it was there discounted, with the oral understanding that the proceeds should not be paid until the 15th of the…

<p>Statutes—Repeal—Effect on Pending Action.</p> <p>Chapter 351, Laws 1882, “supplemental to chapter 431 of the Laws of 1881, entitled ‘an act to amend chapter 324 of the Laws of 1850,’ ” authorizing town boards of health to maintain actions to restrain the violation of their regulations, was included in the repeal of “chapter 324 of the Laws of 1850, and the several acts amendatory thereof, ” by Laws 1885, c. 270, § 9, and an action thereunder cannot be maintained, though commenced prior to the passage of the repealing act.</p>

<p>Attachment—Affidavit foe—Hearsay.</p> <p>Where an attachment is issued upon the ground that defendant has departed from the state, and disposed of his property with intent to defraud his creditors, averments in plaintiff’s affidavit of statements made to plaintiff by a brother of defendant, and matters ascertained by plaintiff from a “Mr. Moss and other sources, ” are hearsay; and the only other proof offered to support the attachment being that plaintiff had a cause of action on December 13th, that defendant left home on December 3d, saying that he would be back the next Sunday, and that he was not known to have returned on December 11th, both grounds of attachment fail.</p>

<p>Appeal from circuit court.</p> <p>Action by Sophia Boor against Frederick Mosehell, on a promissory note. Judgment for plaintiff, and defendant appeals.</p>

This was an appeal from an order setting aside the levy of an execution on 'real property, and staying proceedings under such execution.

<p>Conversion—Of Personal Property into Realty—Rights of Creditors.</p> <p>In 1864 the mother and grandfather of an infant who lived with them, and had no general guardian, executed a deed purporting to convey to the wife of one V. certain land of the infant, in consideration of $1,350; $300 cash, and the remainder secured by a bond, most of which was paid after the death of the wife. The wife entered into possession, and after her death the husband continued in possession. In 1870 the children of his deceased wife executed to him a quitclaim deed of the premises. Afterwards the grandfather of the infant was appointed special guardian, with authority to sell the land in question; and for the consideration which had already been paid, and was held by him for the infant, executed a deed of the premises to the second wife of V. Held, that a creditor of V. could not reach the land, nor a fund arising from its sale, on the ground that the consideration paid for the original conveyance became a trust fund for the benefit of the first wife, which by equitable conversion became real estate, and descended to her children, one of whom had since died, and his interest descended to his father, V.</p>

<p>Appeal from circuit court.</p>

<p>Appeal from circuit court.</p> <p>Action by Desda Reynolds against the Equitable Accident Association of Binghampton, on a life insurance policy. Judgment for plaintiff, and defendant appeals. ></p>

Action by Thomas R. Rutherford, assignee for the benefit of creditors of Morris Schottman, against Julius Schottman and others, to set aside a judgment confessed by said Morris Schottman, as fraudulent and void. Judgment for plaintiff, and defendants appealed.

<p>Office and Officer—Expiration of Term—Qualification of Successors.</p> <p>The term of office of attendance agents of a board of education having expired, they have no legal status as such agents, and cannot claim recognition as such by the board on account of any irregularity in the election of their successors.</p>

<p>Appeal from circuit court, Kings county.</p>

L. Bishop, referee. Two actions by Josie de Carnearte to recover upon a quantum meruit for services rendered by him to Josie Garcia Blanco and Maria Josefa Garcia Blanco de Lastres. Judgment for $3,568 was entered upon the report of a referee in favor of plaintiff against each defendant. Defendants appeal.

<p>Appeal from circuit court, Kings county; Bartlett, Justice.</p>

<p>Appeal from special term, Dutchess county; J. F. Barnard, Justice.</p> <p>Action for the reformation of a deed, begun in December, 1887.</p>

Baylis against the estate of James Shannon. The claim being allowed and ordered paid out of funds in the hands of the executors of said Shannon’s will arising from the sale of real estate under the will, certain devisees thereunder appealed.

On exceptions from circuit court, Kings county; Edgar M. Cullen, Justice. Action by Moses Bulkley and others against Parker B. Whitcomb. On trial the court directed a verdict for plaintiffs, to which defendant took exceptions, which are heard in the first instance at general term.

<p>Criminal Law—Illegal Granting or License by Excise Commissioners—Suppiciency op Evidence to Sustain Conviction.</p> <p>On an indictment of excise commissioners for misdemeanor in granting a license to sell liquor to be drunk on the licensee’s premises, knowing that he was not able to keep an inn, and had not the necessary accommodations for travelers, in violation of the excise law, where it appears that the licensee had not such accommodations for travelers, and there is evidence from which the jury might find that defendants had entirely failed in their official duty to ascertain the licensee’s disability and want of accommodation before issuing the license, the evidence is sufficient to sustain a conviction.</p>

<p>Pleading—Amendment—Practice.</p> <p>Where no motion is made on the trial to amend the complaint, and there is no order ior such amendment, but only a statement by the judge that he would allow it, and after appeal from the judgment, and reversal by the general term, plaintiff's attorney serves on defendant’s attorney a proposed order for amendment, without any motion made for such amendment, which order is subsequently allowed, the practice is misleading, and the order should be reversed.</p>

<p>Appeal from special term, Kings county.</p>

<p>Appeal from circuit court.</p>

Petition to the surrogate of Kings county for a decree directing the payment of. certain money to a legatee, under Code Civil Proc. FT.

Prior to 1874 one Henry T. Gillett carried on business as a wholesale and retail liquor dealer at Buffalo. For a portion of the time his son, Albert A. Gillett, and John G. Guenther, were partners with him, under the firm name of Henry T. Gillett & Son. Albert A. Gillett died, and the business was then conducted by the surviving partners, each having an equal interest.

<p>1. Mobtgagbs—Fobeolosuee—Pleading—Avebbing Poweb oe Sale.</p> <p>A complaint which aUeges that defendant deposited with plaintiff a certificate of stock to secure his note, with the agreement that, if the note was not paid when due, plaintiS could sell the stock at public or private sale, that the note is past due and unpaid, shows a sufficient cause of action, though it does not allege the value of the stock, and notwithstanding the power of sale.</p> <p>0. Action—Joindeb oe Legal with Equitable Cause—Code Civil Pboc. N. Y. § 484.</p> <p>A complaint seeking a judgment on a note, and the foreclosure of a lien on certain stocks which had been pledged to secure payment of the note, is not demurrable because it unites two forms of actions, one legal and the other equitable, since the distinction between forms of action is abolished by Code Civil Proc. N. Y. § 4S4.</p> <p>8. Banks and Banking—National Banks—Pleading—Aveement oe Inoobpobation.</p> <p>A complaint in an action by a national bank, which states that it is duly organized under the national banking act, but does not state directly where it is located and doing business, or whether a domestic or foreign corporation, is still sufficient on demurrer, where it is described as a national bank of a city in the state, and. that it has done business in that city for more than 10 years, under Code Civil Proc. N. Y. § 1775, providing that, in suits by or against corporations, the complaint must state whether it is a domestic or foreign corporation, and, if the latter, in what state or country it was organized.</p>

<p>Appeal from trial term.</p>

Attachment proceedings by Moritz Pach against Lizzie Orr. Buie 25, referred to in the opinion, is as follows: “Whenever application is made ex parte on affidavit to a judge or court for an order, the affidavit shall state whether any previous application has been made for such order, and, if made, to what court or judge, and what order or decision was made thereon, and what facts, if any, are claimed to be shown.

In the matter of the application of the city of Buffalo for the appointment of commissioners to ascertain the just compensation to be paid to the person or persons or corporations interested in lands to be taken for park purposes. Appeal by Briggs & Webb and Whitmore & Rathbun, owners of such lands, from an order of the special term of the superior court of Buffalo confirming the report of commissioners herein.

On demurrer.. This action was brought by Louisa Williams and Louisa Mitchell against John C. Hubbell for a breach of contract. Defendant demurred to plaintiffs’ complaint.

<p>Appeal from municipal court.</p> <p>Action by William H. Heath against George M. Kyles for medical services. Judgment for plaintiff, and defendant appealed.</p>

Action by William W. Carlin against Charles Richardson to recover $300 due by contract. Judgment of nonsuit, and plaintiff appealed. Code Civil Proc. $T. T. § 501, subd. 1, defines a counter-claim to be anything that tends to defeat or diminish plaintiff’s recovery, ” which must be “* * * a cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim, or connected with the subject of the action. ”

Action by John L. Pryor to recover damages for false representations made by defendant, Hubbard A. Foster, in regard to the heating capacity of a furnace in a building which defendant was leasing to plaintiff. Judgment for defendant, and plaintiff appeals.

<p>Appeal from trial term.</p> <p>Action by Dora T. Ulrich against Minna and August Ulrich for the foreclosure of a mortgage. From a judgment for plaintiff defendant Minna Ulrich appeals.</p>

Trhax, Judge. Action by Lawrence Kilroy against the president, managers, and company of the Delaware & Hudson Canal Company, for injuries sustained while unloading coal from one of the defendants canal-boats; plaintiff being at the time of the accident in the employ of James O’Brien, the stevedore, who had been engaged by the consignees of the coal. Defendant appeals from a judgment in favor of plaintiff, and from an order denying a new trial.

On motion to dismiss complaint. Action by Michael Henry and another against Edward H. Lynch, the city of Hew York, and Bernard Mahon, to foreclose a mechanic’s lien against the city. Plaintiffs were subcontractors under Lynch, who held a contract from the city for work, and filed their liens October 26 and 27, 1887. Mahon was made a party defendant, because he held an assignment by Lynch of the money due by the contract.

Action brought by Peter H. Moffat against the city of Brooklyn to recover for a salary alleged to be due him. Trial before the court without a jury, and judgment rendered for defendant, and plaintiff appealed.

<p>On application for admission of William S. Wait’s will to probate.</p>

<p>Deposition—Oral Cross-Examination—Power or Court.</p> <p>Under Code Civil Proc. § 889, which, provides that commissions to examine witnesses upon interrogatories are to be granted “upon such terms as justice may require, ” where a party to the action is to be examined in his own behalf, the terms may properly be that the witness shall be subjected to oral cross-examination, and the court is not deprived of the power of annexing such a condition by Code Civil Proc. | 895, which declares that sections 893 and 894, relating to open commissions, commissions to examine witnesses upon oral questions, and the taking of depositions, are not applicable where the adverse party is an infant, or the committee of a lunatic, idiot, or drunkard, or the testimony is to be taken elsewhere than in the United States or Canada;</p>

Joint action by Bernard Hufnagel and wife against the village of Mount Vernon, to recover damages for a nuisance to certain premises in the village. Defendant appeals from an order overruling its demurrer to the complaint.

Proceeding by Minna C. Samuels against lier husband, Alexander R. Samuels, for separation from bed and board, and for alimony.

Action brought by Mary Scott against John H. Harbeck and others, as executors of the will of Elvira Harbeck. Verdict and judgment for plaintiff, and defendants appeal.

<p>1. Estates—Merger—Legal and Equitable Estates.</p> <p>The beneficiaries of a charge upon land of which their sister’s husband was seized in fee released the same during the joint lives of husband and wife, and settled it upon her and her heirs in the event of her surviving him. She being the mother of one son, sole issue of their marriage, became, by devise from her husband, in 1853, seized of the incumbered estate in trust for said son for life, then to his lawful issue, and on default thereof with power of appointment by will. Under this devise, mother and son possessed the land until their death; she dying in 1869, and he, intestate and childless, in 1887. The will of the husband and father recognized the existence of the charge, and treated it as valid. Meld, that said charge did not merge with the legal title when the same became vested in the mother, and that the possession of mother was not adverse to the lien of said charge.</p> <p>3. Limitation of Actions—Running of Statute—Action to Enfoboe Lien.</p> <p>In such case, the statute of limitations did not begin to run against an action to foreclose the lien of such charge until after the death of the son.</p>

Brown, Justice. The complaint in this case, after alleging that the plaintiff, Mette Marie Wilcken, is the owner and occupant of property on Thirty-Sixth street, a public street in Brooklyn, and that defendants, the West Brooklyn Railroad Company and the Brooklyn, Bath & West End Railroad Company, have no valid authority to operate a railroad on said street, is as follows: “(23) Plaintiff further alleges that the running of defendants’ heavy trains through Thirty-Sixth…

Brown, Justice. This is an appeal from a judgment of foreclosure and sale of mortgaged premises belonging to the defendant Salie M. Davidge under a mortgage executed by her together with her husband, Robert C. Davidge, to secure any indebtedness that might arise against the latter to the plaintiff, Wallace Mayo.

<p>Appeal from judgment entered on report of P. E. Dana, Beferee.</p> <p>Action by Emma L. Doremus against Abraham Lott and George Bostrand, as exec ft tors of the last will and testament of Adriana Lott, deceased, to recover a balance claimed to be due for services rendered to their testatrix as servant, housekeeper, and nurse during the last 13 years of testatrix’s life, and down to the time of her death, on April 8, 1886, at the age of 83. Plaintiff had previously worked for and lived with the deceased and her mother and sister, who had taken plaintiff to do work in 1857, when she was 11 years old. In 1872 the mother and sister died, leaving the plaintiff and testatrix alone; and it was at this time that the arrangement was made about clothing plaintiff. On a trial before a referee there was a finding for defendants, and from the judgment entered thereon plaintiff appeals.</p>

<p>Appeal from circuit court, Orange county.</p> <p>Action by Joseph H. Fitzpatrick, by John Reilly, his guardian ad litem, against the Garrison & West Point Ferry Company, for an injury received by plaintiff while standing on a dock watching defendant land passengers from its ferry-boat, by means of machinery. Rods, which formed part of such machinery, were pulled out of place by reason of planks, with which they were connected, having become rotten, whereby a heavy weight fell on plaintiff, and broke his leg. Verdict and judgment for plaintiff, and defendant appeals.</p>

Action for personal injuries, brought by Englehart Wandell against Austin Corbin, as receiver of the Long Island Railroad Company. The facts, as stated by the general term on the former hearing, were as follows: “Plaintiff, as member of a regiment, boarded a special train at Long Island City, with his company, bound for Creed moor.

Petition by the Union Elevated Railroad Company of Brooklyn to acquire title to land for railway purposes along certain streets in the city of Brooklyn. The petition was contested by some of the property owners on such streets, and they appeal from a decree granting the prayer of the petition.

<p>Nuisance—Action to Abate—When Maintainable.</p> <p>The city of Buffalo, in Erie county, dumps its street sweepings and other foul matter into the Niagara river, in that county. The village of Suspension Bridge, on the same river below, in Niagara county, draws its water therefrom, in the latter county. Held, in an action by the village water commissioners against the city and its street commissioner, brought in Niagara county, to abate such dumping as a nuisance, that the cause of action arose in Erie county, and defendant was entitled to have the action removed to that county for trial, under Code Civil Proc. N. Y. SB 98S_, 983, providing that certain actions, including actions for a nuisance, must be tried in the county where the cause of action, or some part thereof arose. Dwight, J., dissenting.</p>

Action by Bridget Conklin against William H. -Tice for damages for the death of her husband by an accident caused by his becoming intoxicated on liquor bought of defendant’s tenant. Judgment for plaintiff, and defendant appeals.

Appeal by defendant, Adolph Bernheimer, from a judgment recovered on trial at the special term. The facts in the case, as stated on a former hearing in this court, reported in 31 Hun, 247, are as follows: “The action was brought for the specific performance of a contract for the sale of real estate. The property in controversy consisted of six lots situated near the Riverside park, on Riverside and Claremont avenues, in the city of New York.

<p>Husband and Wife—Injuries to Wife—Action by Husband—Evidence.</p> <p>A judgment deciding that a wife is entitled to recover for injuries caused by the negligence of another is conclusive in favor of the right of the husband to recover from the same party for loss and expenses incurred by him by reason of the injuries to his wife.</p>

Appeal by Matilda Weil, as executrix, and others, from a judgment recovered on trial at the special term. The decision in this case is controlled by that in Post v. Bernheimer, ante, 805.

<p>1. Set-Off and Counteb-Claim—Sale of Pledge—Contract fob Sale of Land.</p> <p>One who assigns a contract for the sale of land as collateral se'curity for her indebtedness on notes, is entitled, in an action on such notes,' to a counter-claim for the full value of the contract where the same has been sold at private sale without notice to her.1</p> <p>1 As to what constitutes a set-off, see Carlin v. Richardson, a/nte, 772.</p> <p>2. Same—Evidence—Sale of Pledge.</p> <p>Where, to a counter-claim for the value of a pledge sold at private sale, and without notice to defendant, plaintiffs replied that, at the time of the pledge, the husband of defendant, for whose debts it was also security, owed them a certain sum, a question asked on the trial as to his indebtedness at another time was properly excluded.</p>

Case submitted upon facts. Controversy between Julius Catlin, Jr.,- et al., executors of Stephen M. Buckingham, deceased, and the trustees of the several corporations named, to determine whether certain bequests to St. Paul’s Church, the Domestic & Foreign Missionary Society of the Protestant Episcopal Church, and Trinity College should be subjected to a tax under Laws 3ST. Y. c. 713, § 1.

certiorari. Code Civil Proc. 3ST. Y. § 2041, provides that upon application for a writ of habeas corpus where, from an inspection of the petition and accompanying documents, it appears that the cause of detention is an offense not bailable, a writ of certiorari may issue as if applied for, instead of a wrrit of habeas corpus.

Action brought by Edward S. Jaffray and others against Sigfried Davis and another to recover a balance due on account. Plaintiffs at various times between May 3, 1886, and December 8, 1886, sold and delivered to defendants goods of the value of $7,714.37, on which there was due plaintiffs, at the time of the commencement of the action, a balance of $5,931.27, and interest from December 8, 1886.

<p>Mines and Mining—Grant of Right to Prospect for Ore—Reasonable Time.</p> <p>The owner of a tract of land granted to plaintiff the right to enter upon the land for the purpose of prospecting for mines and minerals; the agreement providing that if, after examination and test, plaintiff should be of opinion that the mines were worth working, he should have the right to go on with such work, the net proceeds of the mineral obtained to be divided between plaintiff and the owner. Held, that plaintiff was bound to assert his rights, under the contract, within a reasonable time, by performing the acts contemplated thereby, and that a delay of SO years in making such assertion barred his rights.</p>

Kings county; Calvin E. Pratt, Justice. Action by Kate Covert against YVilliemene Townsend for the conversion of certain shares of stock alleged to have been deposited with Blaize L. Harsell, the husbatid of defendant, since deceased, as collateral security on loans made by plaintiff and her sister to one Alfred Nelson on the procurement of Harsell; the notes given to plaintiff’s sister upon the loans made by her having since been assigned to plaintiff.

Action by Charles H. Young against John Hurd, Peter McFarlane, and Charles B. Hotchkiss for damages for obstructing the water-power of plaintiff’s saw-mill by throwing into the stream the sawdust and other refuse of defendant’s mill, three-quarters of a mile further up the stream. Hotchkiss died pending the action, which was, by stipulation and order, continued against the survivors.

-Appeal from circuit court, Wyoming county. Action brought by Milo D. Smith against James Halligan to recover damages for the non-performance of a written contract, of which the following is a copy: “November 20, 1882. M. D. Smith bought of James Halligan, junior, two cars of potatoes, at fifty-four cents for sixty-two pounds, to be loaded on the track at North Java or Java Center.

Action by John and Theresa Leprell against Barbara Kleinschmidt. Defendant appeals from an order denying a motion to set aside a taxation of costs in plaintiffs’ favor, made on their application before entry of judgment on the verdict.

Ingraham, Justice. Claim presented by Phebe A. Grapel and Robert Brown, as administrators of Gerhard Henry Koop, deceased, to H. D. Carlile Hodges, administrator of Horace D. Carlile, deceased, which, by consent of the parties and the order of the surrogate, was referred to William S. Beaman for hearing and determination.

<p>Appeal from special term.</p> <p>An order of the special term adj'udged defendant Denbow guilty of contempt, and he appeals.</p>

Thaddeus Munson sued Melvin Curtis in justice’s court, and obtained judgment in 1882. On appeal by Curtis to the county court a trial was had in 1886, and judgment rendered for Munson, from which, and from an order denying a new trial, Cui;tis appeals. By the amendment to Code Civil Proc. BT.

<p>1, Highways—Establishment—Jurisdiction of Commissioners.</p> <p>Under Laws N. Y. 1875, c. 482, as amended by Laws 1881, c. 554, empowering the board of supervisors in certain counties to authorize the establishment of a grade for streets and avenues which have been mapped out, and the laying out and opening of the same, one whose land is within the district established by the board in accordance with that act cannot object that the commissioners appointed to lay out the street have no jurisdiction over his land.</p> <p>2. Same—Assessment by Commissioners—How Changed.</p> <p>Under such act the commissioners appointed are to fix the amount of the assessment of each piece of property within the district prescribed by the board, and the court will not disturb the assessment except when it appears that there has been some misapprehension or misconduct, or the adoption of some improper rule of law.</p>

Action by the Jamaica & Brooklyn road against the city of Brooklyn to ■saneel certain tax sales of plaintiff’s property. Judgment for defendant, and plaintiff appeals.

Cullen, Justice. This is an action by Elvira Dill against John H. Harbeck and others, executors of Elvira Harbeck, upon a verbal contract alleged to have been made-by the defendants’ testatrix with plaintiff, whereby testatrix undertook to purchase a house in the city of Brooklyn, and then to live and board with plaintiff.

The appeal in this proceeding is from a part of an order made by Dykman, J., founded upon the remittitur of the court of appeals reversing an order made by this court at general term affirming an order of the surrogate of Westchester county, directing that Frederick Hood render an account. The order made by Dykman, J., allowed Hood the costs in the court of appeals, and also in this court and the surrogate’s court, and directed taxation thereof.

<p>Appeal from circuit court, Kings county.</p> <p>This is an action by Wright Duryea and William Duryea against William C. Vosburgh. The sale referred to in the opinion was of the interest of one B. S. Feck in the business and property of the firm of W. 0. Vosburgh & Co., in which firm defendant was a partner. After the sale, plaintiffs became partners in the firm in place of Peck; but before this action was begun Vosburgh withdrew from the firm, and went into the same line of business by himself. There was a judgment for defendant, and plaintiffs appeal.</p>

F. Barnard, Justice. Action by Cassius M. Smith, for partition of an estate, against Flora A. Smith, impleaded with others. Plaintiff and Edwin H. Smith, one of the heirs and a party defendant, were partners in a skating-rink, each having invested $3,500 therein, plaintiff paying $1,500 of Edwin H. Smith’s share, to secure which the latter gave him a mortgage on his interest in the estate.

Action by Rosa Reichman against the Second-A venue Railroad Company for injuries sustained while a passenger on defendant’s road. Verdict and judgment for plaintiff, from which, and from an order denying a new trial, defendant appeals.

<p>Appeal from special term.</p> <p>Appeal from an order allowing plaintiff to serve an amended complaint.</p>

<p>1. Execution—Supplementary Froceedinss—Discharge in Insolvency.</p> <p>* On motion to set aside proceedings supplementary to execution on the ground that since the entry of judgment the judgment debtor has been discharged in insolvency, the judge cannot try the validity of the discharge, no defect appearing on its face.</p> <p>3. Appeal—Appealable Orders—What are.</p> <p>The refusal to grant such a motion' is appealable.</p>

<p>Appeal from special term, Hew York county; Patterson, Justice.</p> <p>Action by the city of Hew York against the Tenth national Bank of Hew York to recover interest on balance due plaintiff. The defendant interposed a counter-claim for money advanced by it in 1871 to the county court-house commissioners. The apportionments for that year having been exhausted, the different banks made advances to enable the different departments to carry on their business. In 1872 the legislature passed an act authorizing the repayment of all sums so advanced. The court below sustained the counterclaim, and from the judgment there entered the plaintiff appealed. Laws 1872, c. 9, § 2, authorizes and requires the comptroller of the city of Hew York to pay back to the banks of said city the sums advanced by them prior to December 31, 1871, for the use of any of the departments or commissioners of the city or county of Hew York.</p>

<p>Appeal from circuit court.</p>

Submission upon agreed statement of facts. Action by Peter P. Collier against Trow’s Printing & Book-Binding Company. The parties agreed upon a statement of facts, and stipulated that the case should be submitted to the general term of the supreme court.

<p>Injunction—Motion to Dissolve—Appeal—Review on the Merits.</p> <p>Where no harm can result from the continuance of a temporary injunction, and the rights of the parties can only be determined by trial before the court having the witnesses before it, the appellate court will not, on an appeal from an order refusing to dissolve the injunction, express an opinion upon the merits of the controversy, derived from an inspection of the affidavits of the witnesses.</p>

<p>Appeal from circuit court.</p>

C. Barrett, Justice. S. ti. Butler et al. sued Charles B. Farley, sheriff of Kings county, in replevin to recover certain property levied on, by virtue of an execution against a third party. Judgment for plaintiffs, and defendant appeals.

<p>1. Principal and Surety—Contract to Become Surety—Public Policy.</p> <p>A contract for the payment of money to sureties upon a bond given to secure the performance of a contract with the United States government is not against public policy.</p> <p>3. Same—Breach op Contract to Become Surety—Measure oe Damages.</p> <p>The measure of damages in an action to recover for breach of a contract to become surety upon a contractor’s bond is the expense to which plaintiff is put in supplying a new bond; and the fact that defendant was only one of the sureties does not alter the rule where a wholly new bond becomes necessary.</p> <p>3. Corporations—Contracts—Rules.</p> <p>It is no defense to an action for breach of a contract by a corporation that, in entering into the contract, it violated its own rules, which fact was within its knowledge at the time the contract was entered into.</p>

<p>Appeal from, special term, New York county; Charles H. Van Brunt, Presiding Justice.</p> <p>Attachment by the Bank of Montreal against the Fidelity National Bank of Cincinnati. David Armstrong, receiver of the latter bank, intervened, and moved to vacate the attachment. From an order denying such motion, he appeals.</p>

<p>On exceptions from circuit court, Hew York county; A. R. Lawrence, Justice.</p> <p>Blanche Hurlbut sued the Mutual Benefit Life Insurance Company to recover on the policy of R. W. Hurlbut, deceased, claiming as his assignee. The company paid the fund into court, and F T. Hurlbut, administratrix of his estate, was substituted as defendant. From a judgment in favor of the plaintiff defendant asked for a new trial, which was ordered to be heard at the general term.</p>

Ingraham, Justice. Action by Caroline C. Bishop against Ward B. Chamberlin and John H. Deane to establish her claim to a sum of money alleged to have come into the possession of Chamberlin under circumstances which made him a trustee for her benefit. Judgment for plaintiff. Defendant Chamberlin appeals.

Action by Lydia J. Boberts against the Stuyvesant Safe-Deposit Company of the city of New York to recover for her property taken from one of the company’s safes rented by her, by officers of the law, in execution of a search-warrant. Defendant obtained judgment, and plaintiff appeals.

Action by Aaron Grabush against Jonas Goodman to set aside the assignment of a judgment by plaintiff to defendant on the ground of fraud. Judgment for plaintiff, and defendant appeals.

Action to enforce a judgment rendered against Daniel Kelly in favor of Lydia M. Eastman and others against lands standing in the name of Mary J.' Jones. Judgment for plaintiffs. Defendants appeal.

Action by Max Abenheim and others against Edward Samuel to recover the price of iron sold. There was judgment for plaintiffs, and defendant appeals.

<p>Appeal.from circuit court, Kew York county; Ingraham, Justice.</p>

<p>Appeal from special term.</p> <p>Appeal from an order at special term granting motion of the purchaser that at a partition sale herein he be discharged from his purchase.</p>

Action by Henry B. Metcalf against the mayor, aldermen, and commonalty of the city of Hew York. Judgment for plaintiff, and defendants appeal.

Action of replevin by Justus Heilbronn and others against Henry McAleenan to recover possession of two diamond stones found in possession of defendant, a pawnbroker. Judgment was entered on a verdict for plaintiff, and defendant appeals.

Action for conversion, by Bache Cunard against Charles G-. Francklyn. Plaintiff appeals from an order denying his motion to preclude defendant from giving certain evidence.

On certiorari. Writ of certiorari on the petition of Lawrence Clarson to review the decision of Stephen B. French and others, police commissioners, dismissing the relator from the police force of Hew York city.

Submission upon an agreed state of facts. This case was submitted upon an agreed statement of facts. 1 Bev.

<p>Appeal from circuit court, Jefferson county.</p> <p>Appeal from a judgment entered upon a verdict taken at the Jefferson circuit for the plaintiff, and also from an order denying a motion for a new trial made upon the minutes “on the grounds that the verdict is excessive, and is contrary to the evidence given upon the trial, and is contrary to law; and also upon the exceptions taken at the trial by the defendant to the rulings of the court.” The verdict for the plaintiff was for $256.50. For opinion on former appeal, see 35 Hun, 46.</p>

Action by Thomas Taylor, Jr., against Sidney M. Ballard and John Millard for the price of hay. Judgment rendered upon the verdict of the jury in favor of the plaintiff for $11.64 damages, from whicti plaintiff appeals.

Action by John J. Vedder against John P. Davis and Robert L. Davis to recover a surplus of hay left on premises of defendant at the close of his occupancy thereof. Judgment for plaintiff, and defendants appeal.

Action by Hiram Copley against the Doran & Wright Company, Limited, impleaded with Charles R. Knapp. Defendants appeal from an order overruling a demurrer to plaintiff’s complaint.

<p>Application for writ of prohibition.</p>

Action by John Clark on a contract to deliver ice signed by Stewart, Clergue & Co. The summons issued against Frank Clergue, Thomas Stewart, Charles Stewart, and Edward Stewart, as composing the company, but was served only on Clergue, who answered, alleging that the firm was composed of himself and Harry D. Stewart, who was not made a party, and that the other three Stewarts were not partners; and also charged that plaintiff had violated the contract sued on.

Cullen, Justice. Application by Calvin D. Yan Name, attorney of plaintiff in the case of William M. Howett against Isaiah M. Merrill and another, to have a satisfaction of the judgment in such case given by plaintiff to defendant Merrill set aside, in order that the attorney’s lien for costs and disbursements might be restored. Order denying the application, and plaintiff and attorney appeal.

Cullen, Justice. Action by Amy Haas against the Montauk Fire Insurance Company, of Brooklyn, to recover for loss by fire of property covered by a policy of insurance issued by defendant. Judgment for plaintiff. Defendant appeals.

<p>Executors and Administrators—Probate Practice—Disputed Claims.</p> <p>A note given by a deceased person is not a disputed claim, where it appears that when it was presented against the deceased’s estate no dissent was made by the administrator, who subsequently promised to pay it; that afterwards proceedings were instituted in the surrogate’s court to enforce the claim, when the administrator alleged that the note was given by a married woman to pay her husband’s debt; but, as the administrator again promised to pay the debt, the proceedings were dismissed.</p>

<p>On habeas corpus.</p>

M. Cullen, Justice. Action by the heirs of Lucy Vanderveer against William Vanderveer, surviving husband of said Lucy, and also executor, with his co-defendant, James Doyle, of the last will and testament of.said Lucy Vanderveer, to obtain the possession of land. Judgment for defendants. Plaintiffs appeal. The special term made an allowance of $500 for counsel fees for defendants, from which an appeal was also taken.

Action by John B. Vanderveer against William Vanderveer, and James Doyle, administrators of Lucy Vanderveer, for work and labor performed by plaintiff for defendant’s intestate. Judgment for plaintiff, and defendants appealed. Code Civil Proc.

<p>Appeal from circuit court.</p> <p>Action for personal injuries by Mary E. Rvan" against the Manhattan Railroad Company. Judgment for plaintiff, and defendant appeals.</p>

Dykman, Justice. Action by Mary P. Taggart against George Wade, executor of the will of Sarah J. Nagle, deceased, John B. Wade, and Mary G. Rogers, to redeem certain property which had been sold under a mortgage foreclosure. The court, at special term, found that plaintiff had a right to redeem, and made an order of reference to compute the amount due on the mortgage. Prom the interlocutory judgment then entered defendants appeal.

<p>Tenancy in Common and Joint Tenancy'—Action against Co-Tenant—Ousteb.</p> <p>Where lands were devised to five children,—to three sons an absolute estate, and to two daughters a life interest,—and a power of sale as to all the lands was given to the executors, who were the widow and the three sons, and the widow and two of the sons join in an absolute conveyance of the lands, with individual covenants of warranty, an action on behalf of the daughters cannot be maintained to recover possession, where the defendants do not claim the whole title under their deed, and deny ouster, and there is no proof of defendants’ possession outside the pleadings, since it becomes a case of tenancy in common; and 'under Code,. § 1515, one tenant cannot recover possession without proof of ouster by the other.1</p> <p>1 Respecting the rights of tenants in common imter se, see Busch v. Hester, (Mich.) 38 H. W. Rep. 458, and note. ' x</p>

<p>Trusts—Sale of Trust Property for Taxes—Purchase by Trustee.</p> <p>A will gave to the testator’s widow and children the right to occupy certain premises during the widowhood of the first named; those occupying being required to pay the taxes, and keep the premises in repair. The remainder was given to certain of the children, among whom was one of those who occupied during the life of the widow, and who afterwards was for a time the sole occupant, during which time he conveyed the property to three trustees under an active trust for the benefit of the grantor, his wife, and children. Held, that a purchase of the property by one of the trustees at a sale for unpaid taxes, a portion of which had accrued during the life-time of the widow, vests no title in him as against the other owners in common.1</p> <p>1One of several tenants in common cannot acquire a tax title to the prejudice of his co-tenants, Holterhofi! v. Mead, (Minn.) 29 N. W. Rep. 675, and note; his purchase of such title will be treated as a payment of the tax for which, the property was sold, or a redemption from the sale, Hall v. Westcott, (R. I.) 5 Atl. Rep. 629; Lomax v. Gindell, (HI.) 7 N. E. Rep. 483; and such payment or redemption will inure to the benefit of all his co-tenants, Id.; Id.; Holterhofi v. Mead, supra; Minter v. Durham, (Or.) 11 Pac. Rep. 231; Hardy v. Gregg, (Miss.) 2 South. Rep. 358, and note; and the, purchaser be entitled to reimbursement, Hall v. Westcott, supra; Lomax v. Gindell, supra; the amount of which becomes a lien or charge upon the interests of such co-tenants, Lomax v. Gindell, supra. Respecting the rights of tenants in common inter se, in general, see Earnshaw v. Myers, ante, 901, and case cited in note.</p>

Coffin, Surrogate. Petition by Adelia Cocks to the surrogate of Westchester county, for a decree compelling the executors of the will of John Cocks, deceased, to apply the remnant of his estate towards the payments of arrears of annuities due to her under his will. Petition denied, and petitioner appeals.

Mills, Judge. Action by George C. Carter against John H. Byron for an eviction. Defendant appeals from a judgment in favor of plaintiff and from an order denying a new trial.

Brown, Justice. Action by James Keairns, an infant, by his guardian ad litem,, Michael Keairns, against the Coney Island & Brooklyn Railroad Company, for injuries sustained by plaintiff being thrown from one of defendant’s cars, upon which he was employed as driver.

<p>Master and Servant—Injuries to Servant—Risks of Employment.</p> <p>Plaintiff, employed by defendant as a changer of horses, was directed by a fellow-servant to shovel snow off the roof of defendant’s barn, and, after doing so, in descending the ladder, jumped off to one side to avoid a drift, and fell into a skylight concealed by the snow. Held, that defendant was not obliged to inform plaintiff as to the existence of the skylight, and, having assumed the risks of his employment, the latter cannot recover for the injuries sustained.1</p> <p>1 As to the servant’s knowledge of danger, and his assumption of the risks of his employment, see the exhaustive note to Rogen v. Enoch Morgan’s Son’s Co., ante, 273.</p>

Andrews, Justice. Action brought by Jacob S. Bogers, Thomas Denny, and J. Kennedy Tod against the Hew York & Texas Land Company, Limited. This is an appeal from an interlocutory judgment overruling a demurrer to the complaint.

Action by Valentine Diefenthaler against the mayor, etc., of the city of Hew York, to recover an excess in a street assessment for the year 1874. From a judgment sustaining a demurrer as to one and overruling it as to another defense in defendant’s answer both parties appeal.

<p>Appeal from special term, New York county.</p>

<p>Will—Construction—Devise to Children.</p> <p>Under a devise of one undivided third part of testator’s real estate to his widow for life, and upon her death to his “children equally, who may be then living, and to their heirs and assigns forever, ” where a vested estate has been given to his children in equal shares in the remaining two-thirds of the realty and in all the personalty, the land, upon the death of the widow, does not pass to the surviving children, but to the survivors and to the heirs and assigns of such as have previously died, there being nothing to indicate that the testator did not intend that his children should share such third equally also.1</p> <p>1 Respecting the construction of wills, and when the Interests thereby created are vested, and when contingent, see Chasy v. Gowdry, (N. J.) 9 Atl. Rep. 580; Parker v. Glover, Id. 317; Appeal of Reed, (Pa.) 11 Atl. Rep. 787; Wiggin v. Perkins, (N. H.) 5 Atl. Rep. 904, and note; Davidson v. Bates, (Ind.) 13 N. E. Rep. 687, and note; Lenz v. Prescott, (Mass.) 11 N. E. Rep. 933; Dodd v. Winship, Id. 588; Williams v. Williams, (Cal.) 14 Pac. Rep. 394, and note; Roundtree v. Roundtree, (S. C.) 3 S. E. Rep. 474; Wills v. Wills, (Ky.) 3 S. W. Rep. 900, and note; Appeal of Churchman, (Pa.) 13 Atl. Rep. 600; Commons v. Commons, (Ind.) 16 N. E. Rep. 830; Commons v. Commons, (Ind.) 17 N. E. Rep. 371. v '</p>

Action by Alfred Roe and William Cruikshank, executors of Elizabeth F. Floyd, against George T. Vingut, in his own right and as administrator of Sarah A. Vingut, George F. Vingut, Henry K. Vingut, Augusta F. Vingut, Elizabeth K. Vingut, and Benjamin Van Horne Vingut, to construe a will of the testatrix. Decree for plaintiffs, and defendants appeal.

Band, receiver, appeals from an order settling his accounts, and charging him with the payment of debts which arose and accrued in the business of the Bossmore Hotel.