Volume 1 — New York State Reporter

<p>Taxation—Certiorari—Costs of appeal from special term are discretionary—Code of Civil Procedure, § 3239.</p> <p>Tlie .-tatute (Laws 1880, cliap. 269, § 6), only relieves the assessors irom costs upon the hearing at s-ecial u rm on return to the certiorari The costs on appeal there from are discretionary with the court.</p>

Defendant made a contract with one Kelly to erect and complete a brick building for defendant for $5,119. The contract provided that the defendant should “have the power to alter the amount or style of the specified work at any time, and the value of all extra work ordered should be paid by defendant, and the value of all work omitted should be deducted from the contract price.” Kelly sub-let the carpenter work to the plaintiff for a specified sum.

<p>1. Evidence—Duties oe consignees.</p> <p>The duties of consignees cannot be established by the opinion of witnesses who are dealers in the articles sold. The law which governed consignment would depend upon facts.</p> <p>.3. Same—Expebt testimony—Opinions.</p> <p>All opinions cannot be given in evidence, as that of an expert, when the ' subject does not require any peculiar habits of study to qualify a man to-understand it Expert witnesses may state what the usage is, and cannot, even in cases where expert evidence is permitted; give an opinion as to the-duties of consignees.</p> <p>3. Same—Commission—Appeal—Order sending back commission.</p> <p>An order denying a motion to send back a commission for a fuller execution, is not one which "necessarily affects the final judgment” in the-sense conveyed by section 1316 of the Code of Civil Procedure.</p>

This is a civil suit brought by the railroad company to recover the sum Shepard, their alleged defaulting ex-cashier, is said to have converted to his own use.

<p>Appeal from an order denying a motion to stay the pro ■ ceedings in this action till an action in the circuit court of the United States can be tried and determined.</p>

<p>Waiver—Question of—Effect of.</p> <p>Where a party to an action waives by stipulation the benefit of a certain agreement, as an admission of a statement or settlement of account for certain expenditures, such agreement may still be used as evidence as to any other recitals contained in it showing the relations of the parties.</p>

<p>Jurisdiction—Want op matter op defense—Waived by appearance ip</p> <p>NOT PLEADED—CODE OF ClVIL PROCEDURE, § 266.</p> <p>Want of jurisdiction in the superior city courts is matter of defense, and is waived by appearance, unless it is pleaded in the answer. This is so even if the want of jurisdiction appears from the averments in the complaint, and in such case, unless the objection be taken by answer, the court cannot refuse to proceed.</p>

This is a proceeding to determine the rights in, and distribute the surplus moneys arising upon, a sale of mortgaged premises in foreclosure. A reference to ascertain and report .as to liens and the priority thereof was ordered to Wilbur Larremore, esq. The facts are stated in the following opinion of such referee.

<p>Order of arrest—What is necessary to maintain the same.</p> <p>A fair preponderance of proof is necessary to sustain an order of arrest;, but a case need not be made out by proof establishing the right beyond a. reasonable doubt.</p>

<p>1. : Arrest—Affidavits on—Certificate to, taken without the state</p> <p>WHEN INSUFFICIENT—CODE OF ClVIL PROCEDURE, §§ 557-844.</p> <p>Where the affidavit upon which an order of arrest is granted is verified out of the state, and the certificate to the notary’s jurat does not conform to section 844 of the Code of Civil Procedure, it fails to vest the court with jurisdiction to issue the order, and it should be vacated.</p> <p>2. Same.</p> <p>Where the affidavit was taken in Ohio, and the certificate contained a statement that the officer who administered the oath was a notary public, duly commissioned and sworn: EM, that the certificate was insufficient. It does not indicate what official acts, under the laws of Ohio, he was authorized to perform: Eeld further, that the evidence contained in the certificate, as to the authenticity of the signature of the officer who administered the oath, is insufficient, as it does not state knowledge of the officer’s handwriting.</p>

Appeal by H. N. Camp, temporary administrator, etc., of the defendant, from orders granting leave to issue executions on judgments recovered against the decedent in his life-time.

<p>1. Executors—Non-residents—When cannot be removed because on</p> <p>NON-RESIDENCE.</p> <p>Executors cannot be removed because of non-residence, nor required for that cause to give bond as a condition of their continuance in office, in cases where they were non-residents at the time of the grant of letters.</p> <p>'2. Same—Not sunnicient cause nor revocation on letters testamentary.</p> <p>The fact that executors are ‘ ‘men of inconsiderable means, not transacting any business, or having any place of business,” is not of itself a sufficient cause for the revocation of their letters testamentary.</p> <p>.3. Same—When non-residents entitled to receive and retain letters testamentary.</p> <p>Where a testator appointed as his executors two non-residents, who were respectively the treasurer and llie cashier of a manufacturing company having its principal office in the city of New York, and who, as such treasurer and cashier, were in daily attendance at such office, during business hours, and where the will of such testator contained an express provision to the uil'ect that such executors might act without giving security: Held, that within the meaning of section 2038 of the Code of "Civil Procedure, tlie executors had an “office within the state for the regular transaction of business in person," and were, therefore, notwithstanding their non-residence, entitled to receive and retain letters testamentary without giving bond.</p> <p>4. Same—Three trustees appointed to collect and receive income— When two entitled to custody on trust fund to exclusion on third.</p> <p>Where a testator directed the income of his entire residuary estate to he applied to the use of A, and appointed A, B and C his trustees to collect and receive such income and make such application: Held, (following Bundy v. Bundy, 38 N. Y., 410), that B and 0 were entitled to the custody of the principal of the trust fund to A’s exclusion.</p>

<p>1. Benevolent Societies—Power of such societies to take and hold</p> <p>PROPERTY BY DEVISE OR BEQUEST—LAWS OF 1848, CHAP. 319—LAWS OF 1881, CHAP. 641.</p> <p>Chapter 641 of [the laws of 1881, imposing certain restrictions upon the power of benevolent, charitable, religious, scientific and missionary societies, established under chapter 319 of the laws of 1848, to take and hold property by virtue of a devise or bequest, has not worked an abrogation of the restrictions imposed by chapter 319 itself, except so far as the two statutes are clearly repugnant.</p> <p>2. Same—No power to take by will executed within two months of</p> <p>' . DEATH OF TESTATOR,”</p> <p>It is still impossible for such a corporation to take a devise or bequest in a will executed by the testator within two months of his death.</p>

<p>Appeal from order general term supreme court, second department, reversing decree of surrogate of Dutchess county, directing sale of real estate of a decedent to pay his debts.</p>

<p>1. Corporations—Voluntary dissolution—Injunction—When should</p> <p>BE GRANTED TO RESTRAIN SUITS BROUGHT ¡BY CORPORATION AGAINST SUBSCRIBER TO STOCK.</p> <p>Where a corporation has gone into liquidation, in the proceedings consequent upon that circumstance, the rights and debts of the parties would be fixed and the assets of the corporation would be best protected by enjoining all suits and expenses, except such as might be necessary in adjusting the respective debts in liquidation. The effect of a voluntary dissolution of a corporation is to place all its property and all its assets in custodia ' to be collected and applied by a person appointed by the court.</p> <p>2. Subsription to stock—A receiver mat bring suit for.</p> <p>In a proceeding to dissolve a corporation the subscribers for the stock may be prosecuted by the receiver for balance of subscription due with the same force and effect as they could be by the company.</p> <p>8. Dissolved company should not contract debt.</p> <p>A company, if dissolved, should not be permitted to contract any debts in the discharge of any business connected with it.</p>

<p>Appeal from a judgment recovered on the verdict of a jury directed by the court.</p>

The defendant is the assignee for the benefit of the creditors of Frank Tousey, and the action was brought to obtain the possession of four printing presses which came into the defendant’s possession by virtue of the assignment. These .presses had been delivered by the plaintiff to Tousey under .a written agreement for their purchase.

<p>1. CONVEBSION—WHAT SUFFICIENT EVIDENCE OT.</p> <p>Plaintiff sold a steam yacht to defendant for $1,150. The price was to be paid on the delivery of the steamer and upon her answering the representations in the proposal for her sale. Six hundred dollars of the purchase price was paid by one of defendants, and at his request the yacht was taken to the Seawanaka basin, which was under his control. After the yacht was taken to Seawanaka basin plaintiff claiming the machinery was in the condition represented in the proposals for her sale, demanded the residue of the price, which was not paid, and plaintiff was deprived of possession of yacht. The evidence on plaintiff's part tended to show ihat he made no delivery of the yacht: EM, the complaint was improperly dismissed. This evidence shows a conversion in law for which plaintiff was entitled to maintain his action.</p> <p>2. Evidence—Competency of.</p> <p>It was legally competent for the plaintiff to state whether he had or had not delivered the boat to the defendants, and whether any conversation or understanding had taken place waiving his right to insist upon the payment of the purchase price of the property, as a condition of her delivery.</p>

<p>1. Order of arrest—Sufficiency of affidavits to sustain—Code of Crra Procedure, § 590, surd. 1.</p> <p>The affidavits showed that defendant bought tobacco in larger quantities than usual, when he knew he was hopelessly insolvent, and sold it for less than it cost. Had worthless notes discounted, and made false statements to others than the plaintiff to prove himself solvent: Held, Sufficient to show an intent not to pay for the tobacco, and to sustain an order of arrest.</p> <p>3. Fraudulent intent—How proved.</p> <p>Fraudulent intent existing at the time of purchasing may, and ordinarily must, be proved by proving circumstances.</p> <p>3. Same.</p> <p>A debtor, who is hopelessly insolvent and knows he cannot pay his debts, and that he must fail in business, cannot honestly take advantage of his creditors, and thus obtain property which he cannot hope to pay for. So doing shows the intention to cheat.</p> <p>4. Same.</p> <p>Plaintiff had a right to prove representations made to others, as evidence of the intent with which defendant purchased.</p>

<p>1. Railroad mortgage—Effect of foreclosure</p> <p>The I. B. and W. R. R., a consolidated company of Indiana and Blinois, had out-tanding three issues of bonds, secured by mortgages of its. roads, etc., and defaults in the payment of interest having occurred, suits of foreclosure were commenced. For mutual protection certain stockholders united in a plan and bought the railroad, etc,, on joint account, and a new company was formed to maintain and operate the road, and to represent their s veral proportionate interests in the purchase by a pro rata distribution of the stocks and bonds of the new company among the subscribers. The defendants were appointed a committee to carry out and complete-this scheme. The foreclosure was commenced in 1874; the original agreement dated December, 1875; the decree made 1879. This suit was brought in 1884, plaintiff being ignorant of the above proceedings till just before its-commencement. Held, that the fact of her ignorance would not entitle her to any relief.</p> <p>3. Same—When holders of bonds in old corporation are entitled to-receive new issue.</p> <p>The plan of foreclosure was for the benefit of bondholders uniting or subscribing, and all had an opportunity to unite. By a supplementary agreement the pm-chasing committee (the defendants herein) might receive signatures from outstanding bondholders at any time subsequent to the sale, upon such terms as to tbe committee might seem meet. The terms prescribed by said committee, May 15,1879, were that the new securities to bethereatter issued should be subject only to the delay involved in recovering the funds deposited in court by said committee for the redemption of bonds. The certificates issued for bonds when deposited were stamped as being, sub ect to their special instructions of May 15, 1879. Held, the “terms” could not he changed hut by concerted action of the committee, or a majority of it, in the exercise of their power, and for the benefit of the corporation, and not for their own; that plaintiff was in due time in making her demand, and it should have been complied with, it appearing that the-new issues were not exhausted.</p>

<p>Appeal from a judgment recovered at the special term.</p>

<p>Oase agreed upon by the parties and submitted to the -court without action for its decision.</p>

<p>Motion for time to serve case made on behalf of plaintiff by an attorney, who was not the attorney for the defeated party below, and who has served a notice of appeal signed by himself as attorney for the appellant. Motion resisted on the ground that the appeal was invalid.</p>

<p>Motion for an injunction opposed on the ground that the •complaint did not state facts sufficient to constitute a cause of action. The plaintiff, a judgment creditor of the assigning partners, Hartwell and Woodford, brought the action to set aside a general assignment, under which the defendant Lantry is the assignee. The plaintiff was an employee of the assignors at the time of the execution of the assignment, and there was actually due him as wages some $227.52, for which he duly obtained judgment and issued execution, which was returned unsatisfied. Preferences were created by the assignment in the following order: (1) For wages of employees, other than the plaintiff, to the amount of $308.78: (2) lawyer’s fees, $268; (3) Julia B. Woodford, $6,000; (4) William H. Jackson & Uo., $3,417.35; (5) Louis F. Stevens, $259.63; making in all, $10.253.76. The assets amount only to $9,000. The assignee is about to pay these creditors in the order named. The plaintiff based his action upon the ground that the assignment is void under the amendment to the general assignment act, passed May 21, 1884, and obtained an injunction under section 603 of the Code. The opposition to the continuance of the injunction is based solely upon the ground that the complaint does not constitute a cause of action.</p>

<p>Appeal by defendant from an order entered referring the-action to a referee to hear and determine.</p>

<p>Landlord and tenant—Eviction—Facts which do not amount to— When tenant cannot surrender possession under act of 1860.</p> <p>In an action for rent defendant claimed eviction because the Building Department pronounced the building unsafe, and because “noises were heard through the house, shaking us fearfully.” A second inspection by said department, after defendant had moved out, and before any repairs had been made, found the building “ safe and sound.” Held, that there was no eviction, and that tenant could not surrender possession under act of 1860. Fears of house being destroyed is not sufficient, only actual destruction or injury.</p>

On January 7th, 1884, Moras Wolff and Martin Kahn, copartners, under the firm name of M. Wolff & Go., made an assignment for the benefit of their creditors to Gustave Gomprecht, a brother-in-law of said Morris Wolff. The assignment contained preferences aggregating $83,469.05; one of the preferred claims was that of L. Schoolherr, who-was the father-in-law of said Martin Wolff and of said Gustave Gomprecht and a partner in business of the latter, for $22,621.39.

<p>1. Negligence—Contributory negligence.</p> <p>In cases where contributory negligence may be claimed, the absence thereof is part of the plaintiff’s case, and the burden of satisfying the jury on that point by a preponderance of evidence, rests up <n him. A child too young to have discretion for himself, cannot recover, if his protector fails to exercise ordinary care.</p> <p>2. Same—Contributory negligence of parents.</p> <p>In an action brought to recover damages for an alleged injury, sustained by the plaintiff (a child six years of age), upon one of de.endant’s ferry boats, the evidence showed that she with her parents and a friend were passengers upon the boat; the friend had hold of the right hand of plaintiff; the child was standing by an iron gate situated across the bow of the boat; one of tne deck hands opened the gate and the child’s hand was thereby injured; at the time of the injury the mother was standing just belnn . the child and the father was near the mother. The father had cro.-seJ. the ferry before and had seen the gates and knew how they worked, and though he and his wife were right near by, they did not tell tlieir friend (who had the little girl by the hand to protect her), not to let tiie child go near the gate. Held, that the evidence clearly and positively established the contributive negligence of the child’s protectors, and that they failed to exercise even the ordinary care, which the law imposed upon them and a recovery cannot be had.</p>

<p>Trusts and trustee—Benevolent society—Unincorporated lodge cannot ACT AS TRUSTEE EOR OTHERS.</p> <p>Where the member of a subordinate lodge of an unincorporated benevolent order, in conformity with its constitution, designated his two children as beneficiaries of half of the death benefits promised to be paid thereby, and added: “And Joshua Lodge, No. 31, shall keep it (the fund) till they (the children) are twenty-one years of age and pay the interest.” In an action by the children, brought by guardian against the Grand Lodge, to recover the §500 aforesaid. Held, that the subordinate “lodge” cannot act as trustee for the benefit of the children in respect to said fund, and that the trust attempted to be created is void. An unincorporated society cannot be trustee for the benefit of others.</p>

<p>The action was by a creditor against the trustees of the New York Brewing Company for failure to file the annual report for the year 1881. It was proven that on December 21, 1883, they had filed a report which was published on December 28, 1883.</p> <p>The court at trial term rendered judgment in favor of the defendants, dismissing the complaint.</p>

<p>Pleading—Complaint—Answer—Form op denial in answer.</p> <p>The denial of a cause of action in the exact language of the complaint is not had pleading, unless it is indefinite, uncertain or ambiguous.</p>

<p>Supplementary proceedings—When judgment creditor estopped prom:</p> <p>IMPEACHING ASSIGNMENT.</p> <p>A judgment creditor who has proved his claim against the judgment debtor in general assignment proceedings, and availed himself of the provisions of the general assignment act, has practically elected to join in aid of the purposes of the assignment and cannot in supplementary proceedings go behind the assignment, for it is valid so far as he is concerned. Creditors receiving a benefit under an assignment become parties to it, and are estopped from afterwards impeaching it.</p>

<p>Appeal from a judgment entered upon a verdict of a jury in favor of the plaintiff and from an order denying a motion for a new trial.</p>

<p>Witness—Party—Calling adversary to testify—Not absolutely</p> <p>BOUND BY HIS STATEMENT.</p> <p>When a party calls his adversary as a witness in his own behalf, and he testifies ..nexpectedly to facts contrary to those sworn to by the party calling him, the latter is not absolutely bound by the statements of such witness, but the whole question must be submitted to the jury, and it is error for the court in such a case to direct a verdict.</p>

Plaintht’s motion to show cause why the judgment entered herein in favor of the defendant and the default taken should not be vacated and set aside.

<p>Appeal from a judgment entered upon the verdict of a jury, and from an order denying a motion for a new trial.</p>

<p>1. Executors and administrators—Temporary administrator—Ac-</p> <p>count OF WHEN TO BE JUDICIALLY SETTLED AND DETERMINED—PARTIES TO THE ACCOUNTING.</p> <p>Pending a controversy over the prohate of a decedent’s will, her estate was in charge of a temporary administrator. The controversy having resulted in the admission of the will to prohate.</p> <p>Held, that t¡ e account submitted by the temporary administrator should not b > judicially settled and determined until letters testamentary had been issued to the executors, and they had been brought in as parties to the accounting.</p> <p>2. Same—Pendency of proceedings for revocation of probate of will</p> <p>NO BAR TO ISSUANCE OF LETTERS TESTAMENTARY—^RESTRICTED AUTHORITY OF EXECUTORS WHILE SUCH PROCEEDINGS ABE PENDING-CODE OF ClVTL</p> <p>Procedure, §§ 2636, 2650, 2582.</p> <p>The pendency of a proceeding for revocation of probate is no bar to the issuance of letters testamentary, but executors to whom letters are granted while such a proceeding is pending have only such restricted authority as is allowed by section 2582 of the Code of Civil Procedure.</p>

<p>Executors and administrators—Priority or claims to assets in their:</p> <p>HANDS.</p> <p>A decedent, domiciled in New Jersey, died there, leaving assets in that state, and other assets in the county ana state of New York. His widow, soon after his death, collected the New Jersey assets, brought them to New York county, and there took out letters of administration upon her husband's estate. No administration was ever granted in New Jersey: Held, that as to the New Jersey assets, a physician who had attended the decedent in his last illness in that state, and who was accordingly entitled, under the statutes of New Jersey, to priority in payment over ordinary creditors, should here be accorded a like priority, and should be paid in preference to a New York creditor who had recovered judgment against. the decedent in his life-time.</p>

<p>1. Testamentary trustees—How created and erom where derive</p> <p>their powers—Subject to removal by surrogate—Code Civil Procedure, § 2817.</p> <p>Testamentary trustees are created such by and derive their powers and authority from the will itself without the intervention of any court, and when declared ineligible by law to act as such, are removable by a surrogate under section 2817 of the Code of Civil Procedure, even where they have not assumed actively to interfere in the management of the trust.</p> <p>2. Same—Power op surrogate to appoint successor—Code Civil Pro-</p> <p>cedure, § 2818.</p> <p>In such instance in the case of a sole trustee the surrogate has authority to appoint a successor under section 2818 of the Code, and agreeably to the limitations of that section.</p> <p>3. Same—Bond.</p> <p>The statuee does not make the exaction of a bond essential in a case where the decree by which one trustee is removed designates another In his place. The surrogate may, however, in such a case, in his discretion, require a bond.</p> <p>4. Same—Necessary parties.</p> <p>. In a proceeding for the appointment of a trustee it is not necessary that all persons interested in the trust property or estate should be made parties, but it is for the court, in its discretion, to determine to whom notice shall be given.</p>

<p>1. Jurisdicton—Code of Civil Procedure, § 2624—When jurisdiction</p> <p>OF SURROGATE MAY BE INVOKED TO CONSTRUE A WILL AND WHAT PERSONS MAY INVOKE. r'</p> <p>The mere fact that one has been a party to a controversy over the pro-bale of a will in the surrogate’s court does not enti.le him, under section 2624 of the Code of Civil Procedure, to insist that, before the entry of a decree according probate, the surrogate shall pass upon all questions that such party may see fit to raise respecting the validity, constiuction or effect of such will, or of any of its provisions.</p> <p>As regards the persons who may invoke and the occasions for invoking the surrogate’s jurisdiction to construe wills and pass upon their effect and validity at the time of admitti -g them to probate, section 2624 has worked no substantial change in the law existing before the passage of the Code (§ 11, chap. 359, L ws of 1870.</p> <p>2. Same—When occasion does not arise for subrogate to exercise SUCH JURISDICTION UNDER SECTION 2624.</p> <p>An occasion does not aris'e for the exercise of the surrogate’s jurisdiction under section 2624 unless, in accordance with the course and practice of th-.¡ supreme court, that tribunal would, under similar circumstances, exercis •- its jurisdiction.</p> <p>4$. Same. t,</p> <p>A testator gave his entire estate to his executors in trust to receive the rents, issues, profits and income arising therefrom, and to apply the same to the use of his widow during her life. He.provided that upon her decease said estat - should go to t - e male issue of one A. He further provided that in the event that A should die without leaving male is me, him surviving, the entire estate, real and personal, should go to such charitable and benevo1 nt corpora’ions located in the state of New York, etc., etc., as his (the testator’s) widow, should by her last will and testament appoint.</p> <p>Meld, I hat while the widow and A were yet living, the surrogate was not called upon at the instance of any of dece ent’s next of kin to pass upon tl.e validity of that provision of the will which conferred the power of appointment.</p>

<p>Appeal from judgment of general term supreme court, second department, affirming decree of surrogate of Orange county.</p>

<p>Appeal from judgment of general term, superior court, city of New York, on questions submitted to the court upon an agreed state of facts, under section 1279 of the Code of Civil Procedure.</p>

Appeal by the plaintiff from an order denying a motion to continue an injunction order, and by the defendant, Baird, from an order permitting the service of a supplemental complaint.

<p>1. Contract—Evidence—What competent proof of damages.</p> <p>The defendant C was employed as freight agent of railroad for one year from June 2, 1884, to be paid in part by commissions on the receipts by railroad for west bound freight. He was discharged Hov. 30, 1884. Held, that it was competent to prove the amount which he would probably have realized out of these receipts if continued in his employment, by the testimony of those who previously or subsequently had the management of this business for the plaintiff, and who could testify to its nature and extent. Where the business is of a permanent description, including in the aggregate a large variety of transactions and approximating an average income to the plaintiff, and where the probable loss of the party entitled to the benefit of a contract for the management of that business can by no other means accessible to him be proven, he may resort to this description of evidence.</p> <p>2. Same—When oral agreement admitted to add to written con-</p> <p>tract.</p> <p>Where it appears that a letter was not intended to contain a complete statement of the agreement or understanding, but was made the basis of a specific oral agreement this specific agreement can be proved by oral testimony without violating the rules of evidence applicable to cases where the parties have reduced their agreement to wilting.</p> <p>3. Same—Interest—When to be paid on money under an injunction.</p> <p>The defendant was enjoined from making a disposition of money in his hands claimed by plaintiff. Held, that defendant was rightly charged interest on all that was found due the plaintiff as the injunction did not prevent defendant from refunding the money to plaintiff.</p>

<p>Appeal from a judgment recovered on the report of a referee.</p>

<p>Appeajl from a judgment entered upon the report of a referee.</p>

<p>Appeal from conviction and judgment of the court of general sessions.</p>

<p>1. Usury—What amounts to an agreement to take.</p> <p>Where a person declined to enter into a stipulation, or accept any obligation whatever from a borrower for the payment of more than the legal rate of interest, and whether the borrower should make him donations or gratuities is left entirely to the borrower’s own option: Held, that there is no usury. There is no agreement or understanding imposed upon the borrower that he should do so, and no obligation or agreement made under which the lender could claim more than the lawful rate of interest.</p> <p>2. Same—Test of usurious agreements.</p> <p>To make a loan usurious there must be an agreement, either express or implied, to pay more than the legal rate of interest, and such an agreement as might be enforced by the creditor if it were not unlawful under the prohibition of the statute. The receipt of donations would not invalidate a loan.</p>

<p>Appeal from a judgment entered on the verdict of a jury.</p>

<p>Executors—When liable for less than legal interest.</p> <p>The executor was son-in-law of decedent, and possessed his entire confidence, and had for a considerable time managed his affairs, and had a large amount of his money in business, for which he paid four per cent, according to agreement. Held, that where the discretion vested in an executor would seem to indicate an intention on the part of the testator to allow his executor to con inue the funds in his possession, and at the same rate of interest which was agreed upon between them before the decease of the testator the executor is only liable for the agreed rate, both on account of the circumstances and because the result is more just.</p>

<p>Appeal from a judgment recovered on trial at special term.</p>

<p>Appeal from an order granting to the defendant an additional allowance of $3,500.</p>

<p>Taxes and assessments—Brooklyn city charter—Sales for taxes WHEN TO BE CANCELLED, UNDER LAWS 1885, CHAPTER 405.</p> <p>Under chapter 405, of Laws of 1885, the court will compel the Registrar, by mandamus, to cancel all sales made eight years or more before the the passage of said act, on which leases have not been delivered or demanded within six months after its passage.</p>

<p>1. Negligence—Master and servant—Duty of master to inform about</p> <p>risk.</p> <p>A master is bound to advise the ser 'ant of any risks to which he is subject by the working of a dangerous machine.</p> <p>2. Same—Minors.</p> <p>A minor who is fully instructed or fully understands the dangers of the employment, assumes the risks of the employment just as a mature person who accepts such employment.</p> <p>3. Same—Wrongful employment of minors by servant is act of master.</p> <p>It is .a wrongful act of the master where an employee entrusted with the management of a machine puts a boy without experience at worn upon the machine which he should know to be perilous.</p>

<p>1. Husband and wife—Money deposited in their joint names—Survi-</p> <p>vorship.</p> <p>Where a husband deposited money in a hank in the joint names of himself and wife which remained in the bank at his death: Held, that the money went to the wife as survivor.</p> <p>2. Estoppel—What assertions of widow does not amount to.</p> <p>Held, that the widow having said, in ignorance of her rights, that it was the money of her husband and that she had no interest in it did not amount to an estoppel, as the parties had not acted upon the assertion.</p>

<p>1. Damages — Pleadings — Complaint — Evidence — What a sufficient</p> <p>AVERMENT OF PECUNIARY DAMAGE IN COMPLAINT TO ALLOW PROOF OF LOSS FROM INABILITY TO LABOR.</p> <p>In an action for personal injury, where the complaint was that plaintiff was injured by a stroke of defendant’s derrick, which fell or was thrown on him, knocking the plaintiff to the ground from near the top of said building, where he was standing, and injuring him about head and body and also causing internal injury and great pain and suffering to his damage, in the sum of $10,000. Held, a sufficient averment of pecuniary damages to allow proof of loss from inability to labor. Dykman, J., d ssents.</p> <p>2. Same.</p> <p>Where action is based upon a personal injury and the damages are generally stated, all damages, which are the direct result of the injury, may be recover, d under a general averment of damages if the proof be sufficient.</p>

<p>Appeal from judgment and an order denying a new trial, and an order refusing to set aside the judgment for irregularity.</p>

<p>Common carriers—Duty of as to contracts for freight—Contract</p> <p>FOB REBATES NOT AGAINST PUBLIC POLICY.</p> <p>While it may he the duty of common carriers to extend to all equal facilities, and exact from all equal rates and compensation therefor, yet it never has been deemed a violation of the common law duty of a carrier to make special contracts for transportation less than the usual rates. Even discrimination, so long as it is not unjust, is not unlawful. A contract for the payment of rebates on freight cannot be avoided as against public policy.</p>

<p>Will—Construction of</p> <p>Testatrix, toy her will, in the fourth clause, bequeathed specific articles to her cousin, May W. Hulet, and then provided that $3,000 should be put at interest for her benefit, interest to be paid her during her life, and at her death the principal to go to her children, if she had any, if not, to go equally to the children of testatrix’s brother. The clause ends with the words, “my bond and mortgage at Hunter’s Point;” then follows the fifth clause. Held, that as it would be forced to prefix these words to the fifth clause, the word “also” should be read before “my bond,” etc., and that there was an absolute gift of said mortgage to May W. Hulet.</p>

<p>1. Negligence—Nonsuit—When error to grant.</p> <p>In an action to recover damages for injury c used by negligence, it is-error for the court to grant a nonsuit if, by any allowable deduction from the facts proved, a cause of action might be sustained by the plaintiff.</p> <p>2. Same—Evidence.</p> <p>Where the testimony is strong enough to carry the cause to the jury, it is sufficient to sustain a verdict rendered.</p>

<p>1. Distribution—Advancement—When a gift not an advancement.</p> <p>An advancement must be made out by proof that the property was given as a portion of the estate, and to be taken into account on final distribution. Whether the gift be one designed as an advancement is always a question of intention, and is generally presumed when property is received by a son from his father.</p> <p>2. Same.</p> <p>Where testator was on ill terms with one of his two sons, and threatened to disinherit him, and instructed his attorney, when he gave property to his favorite son, to “put it in shape where he (the favorite) can have the principal part of my propeity, but put in shape over and above what he would have if I made a will.” Held, that this was proof that the property conveyed to favorite son during life-time was not an advancement, but an absolute gift.</p>

<p>1. Appeal—Waiver by accepting- portion op judgment.</p> <p>Generally when a party accepts the beneficial portion of a ju lgment, or order, he waives his appeal; but this is subject to the modification that when the pordon accepted is not inconsistent with the appeal, it is not waived.</p> <p>3. Same.</p> <p>The decree in a suit to partition property left by the deceased father of the parties, provided that the proceeds of the sale of said properly should be first applied to pay the plaintiff herein the excess between the amount given to defendant over him by the father during life (which was held to be advancements) and afterward the children should take equally. Held, that by receiving his share of such remainder defendant did not waive his right to appeal from decision that the property was given as an advancement.</p>

<p>Judgment creditors—Mortgage—Bight op redemption.</p> <p>Where a judgment creditor issues execution on hi; judgment he cannot afterward refuse to receive the money paid to the sheriff on the execution, and elect to proceed against the equity of redemption of judgment debtor in real estate. By issuing execution the judgment creditor waived whatever rights he had to redeem the property, the money being realized by the execution.</p>

The plaintiff sued as the assignee of one Melville S. Nichols. His complaint alleged that in 1883 Nichols was a broker and commission merchant residing in Chicago. That between June 11th and June 20th of that year Nichols purchased for defendant, and at his request, in the Chicago market, according to the rules and customs of the board of trade, 250 barrels of pork.

Application by the defendant for the appointment of a referee or commissioners to admeasure the plaintiff’s dower interest in certain lands described in the complaint, and for such other and further relief, etc.

<p>Demurrer to complaint.</p>

<p>1. New York (city of)—Ferry franchises—Legality of sale of, by</p> <p>COMMISSIONERS OF SINKING FUND.</p> <p>Where the commissioners of the sinking fund sold two ferry franchises together, viz: One extending from the bulkhead at the foot of Whitehall street, in the city of New York, to Staten Island, and the other from the foot of the same street to Bay Ridge, Long Island, with a lease of the bulkhead at the foot of Whitehall street and pier 1, East river, to the defendant, at public auction, they having bid $10,000 per annum for the use of the wharf property, and fourteen and one-quarter jier cent of the gross receipts of the two ferries for a period of eight years and nine months, they being declared by the commissioners to be the highest bidders, and entitled to a lease: Held, that the action of the commissioners in selling (in accordance with their advertisement and notice) the two ferry franchises together, and the fixing by the commissioners of an “upset” price, founded upon the gross receipts of the ferries, and the yearly rental of the wharf property to be paid in addition to the percentage of gross receipts, not less than five per cent thereof, and the determination as to who was the highest bidder at the auction sale is not illegal and wasteful.</p> <p>3. Same.</p> <p>The terms' and condition of the sale are not in conflict with the provisions of the consolidation act of 1883, chapter 410.</p> <p>8. Same.</p> <p>A ferry franchise without the use of a wharf, as a place of departure and landing, would be useless and of no value, and hence the commissioners of the sinking fund are authorized to sell them together.</p>

<p>Mechanic’s lien—Foreclosure oe—Limitation oe time oe a lien— Laws 1854, chapter 402.</p> <p>Chapter 402, Laws 1854, as amended, saves the proceedings in the foreclosure of a mechanic’s lien until a year after a judgment is rendered. Where a faulty judgment was obtained, that was set aside; since which time more than a year had elapsed: Held, that the case was still one where proceedings were commenced and the lien continues until judgment is rendered.</p>

<p>Libel—What constitutes a good ground of action for libel.</p> <p>Where the complaint stated that defendant issued a circular respecting the business relations between the parties, charging plaintiff, among other things, with being in debt, with improper business methods and visionary and unsound business ideas, with spending trust money, with doctoring accounts, with being a treacherous wretch, with “ having a shallow head and unprincipled heart,” and with secreting defendant’s assets: Held, that it stated a good cause of action for libel.</p>

<p>Taxes and assessments—Tax certificates of city of Brooklyn— Interest—Laws of 1884, chapter 888.</p> <p>Chapter 388, Laws of 1884, limits the comptroller of the city of Brooklyn , to the payment of the purchasing price appearing upon the face of the tax certificates of said city, issued from 1862 to 1884, together with amounts paid for taxes and assessments, and he cannot pay interest thereon.</p>

<p>Vende—Practice—Waiter of right to change place of trial.</p> <p>Where defendant receives an extention of time subject to his stipulation, to take short notice of trial for March circuit in Westchester county. Held, that he had waived the right to change the place of trial to the proper county.</p>

<p>1. Railroads—Common carrier, liability eor delay.</p> <p>A common carrier cannot be held responsible for delays caused by storms and tempests without the intervention of human agency.</p> <p>2. Appeal.</p> <p>A judgment can only be reversed on the grounds taken in the appeal.</p> <p>3. Same—County court—Costs.</p> <p>On appeal to the county court from a judgment of a justice’s court, the costs of such appeal are in the discretion of the county court.</p>

<p>1. Evidence—Immaterial testimony on examination in chief.</p> <p>Where a witness was asked, on his examination in chief, to state what answers he had made to certain questions when testifying on the trial of a different action, and did so: Meld, that such testimony proves nothing; that it was immaterial for the purposes of affirmative proof what statements the witness had made on any previous occasion; that he could not be thus made to contradict himself.</p> <p>2. Same—What allowed on cross-examination and in rebuttal. .</p> <p>When it is sought to contradict a witness, or weaken or impeach his testimony, the party against whom he is called or gives testimony may, under certain circumstances, show that he has made contradictory or different statements at other times.</p>

<p>Appeal from a judgment entered upon a verdict of a jury rendered in favor of plaintiff.</p>

<p>Appeal from judgment entered upon verdict of a jury.</p>

<p>Will—Construction—Advancement.</p> <p>The testator held two notvs against his son, the defendant, at the time of his death. After giving his executors power of sale of his estate, real and personal, he adds: “And my will likewise is, that whatever obligations shall be found that I hold against my sons for whatever I have let them have heretofore, shall be considered as my property, and shall be considered as their legacy, in whole or in part, as the case may be.” Held, that the words to the effect that the notes should be the legacy of the debtor sons, only mat that these notes are to be deducted from the sons portion of the estate, so far as the estate will j ay them.</p>

<p>Judgment—Attachment—Satisfaction of judgment, when should be</p> <p>CANCELED.</p> <p>Action No. 2 was commenced in aid of the attachment, judgment and execution in action No. 1, to set aside a certain conveyance and a judgment in favor of one of the defendants. It resulted in a judgment for plaintiff, directing a sale of enough of the property seized to pay the amount due on the judgment in action No. 1, costs in action No. 2, etc. The sale was made, and plaintiff and another credi.or purchased the property, paying enough to satisfy judgment in action No. 2. The judgment in action No. 2 was subsequently reversed by_ court of appeals, and the property sold was restored: Reid, that the plaintiff was entitled to have the satisfaction of the judgment in action No,-,! canceled of record, and the attachment issued in said ac'ion removed from the flies, and, after certain portions of the return of the sheriff thereon are canceled, to have the sheriff enforce said attachment against the property covered by it.</p>

<p>1. Negligence—Streets—Use of, by individual, subject to rights of</p> <p>CITY TO LAY PIPES—WHEN CONTRACTOR NOT LIABLE FOR INJURY.</p> <p>Where the contract with the city of Brooklyn for laying water pipes did not require crossings over the ditch to be left where the city had made none in the street, and plaintiff was injured in trying to cross a ditch where there was no crossing made by the city or left by the contractor Held, that the contractor was not negligent. That while the plaintiff had the right to use the street anywhere her right was subject to the right of the city to lay water pipes.</p> <p>2. Same.</p> <p>That proof of a breach of a provision in a contract made for the conven ience of the city in delivering pipe and not for safety has no relevancy</p>

<p>1. Will—Construction of.</p> <p>The 'estator (father of plaintiffs) left a life estate in one-third of his proper y to his wife during w.'dowhood, “ the remaining two are to be for the use of such of my children by her as may choose to occupy the same, those who may thus occupy being required to pay the taxes and assessments the eof, and to keep the premises in repair.” Held, that the plaintiffs were not bound tj repair and pay taxes until they occupied the premises.</p> <p>2. Same—Evidence—What relevant.</p> <p>Evidence of the fact that the widow refused to accept the provision in the will in lieu of dower, and that defendant claimed a right to cne-third of premises as one of the heirs at law, was irrelevant and immaterial.</p> <p>3. Same—Practice—Damages—Averment in complaint as to.</p> <p>An averment in the complaint that the defendant unlawfully withheld possession of the premises to plaintiff’s damage $100, does not limit the general demand for judgment, that the recovery be for the property with these damages for the detention. Thev may recover for detention during interval between the commencement of the action and the time of trial in addition.</p>

<p>Practice—Notice oe argument—Irregular notice.</p> <p>A respondent is entitled to notice of argument of eight days, but he can. waive by admitting due service. Retention of notice of argument served on December tenth for the fourteenth of the same month is not a waiver of a regular notice.</p>

<p>1. Partnership—Real estate when partnership assets.</p> <p>Lands purchased for and appropriated to partnership purposes and paid for with partnership funds are partnership assets, even if the title is taken in the individual name of the persons composing the firm. The legal effect of the deed is to create the individuals tenants in common in the lands.</p> <p>3. Same—Evidence, parol admissible.</p> <p>Parol proof is admissable to show that the lands were purchased for partnership purposes and paid for with partnership funds.</p> <p>3. Same.</p> <p>If these facts are established then the lands become partnership assets and pass to the survivor as personal property would, charged will the liability of partnership property, to pay the partnership debts.</p> <p>4. Same—Tenants in common.</p> <p>,.Tlie property in question consisted of two pieces. Bird, one of the firm of Bird & Boggs, owned one-lialf of one piece and one Blookfield the other half. This property was held under a lease by Boggs which run until 1875. In 1874 Boggs conveyed one-half of the lease to Bud. Boggs said to Myers, a witness to the agreement in Bird’s presence, that his lease was soon to expire and that he had no money, but that Bird was to let him have money to buy one-half of the leased premises, and that the property was all to be put into the business of the partnership. Boggs purchased the one-lialf and paid for it with partnership funds. In 1868 the partners purchased an adjoining piece, which was used as part of the premises on which the business was done. Both were used in the business as one property. The purchase was paid for with the partnership funds: Held, that this evidence did not sustain a finding that the lands were taken as tenants in common.</p>

<p>Appeal from a judgment in favor of plaintiff.</p>

<p>Appeal from decree entered on a trustee’s accounting, which personally charged the trustee the cost of the Recounting.</p>

<p>1. Taxes and assessments—Awards—How judgment eor, must be</p> <p>RENDERED.</p> <p>A judgment cannot be rendered for a general balance of awards over assessments, upon the aggregate pf the lands taken from an owner. A reduction of the amount of an award by an assessment must be when both relate to the same lot.</p> <p>2. Same—Objection to award must be made before report is con-</p> <p>FIRMED.</p> <p>A single piece of land, running across a street, was so divided that the pieces on each side of the street was nearly equal. The assessment was sepaiate on each portion, but the award for all the land, including that in the street, was entered as for the part which was on the south side of the street. The award was confirmed: Held, that the fault was in the award, but that such an error would be made of no weight after confirmation of the report. That the confirmation in the absence of an- objection was binding like any other judgment.</p>

<p>Negligence—Presumption op—What is sufficient evidence of, to go</p> <p>TO THE JURY.</p> <p>Where an accident is one which would not ordinarily have happened if due care and caution had been used , the presumption of negligence is sufficient to call for explanation, and if this is not afforded the jury may find negligence.</p>

<p>1. Bill of particulars—Verification of—Where irregularity is</p> <p>waited—Code of Civil Procedure, § 531.</p> <p>Where a bill of particulars was furnished without verification, as required by sec. 531 of the Code of Civil Procedure, but was not returned or objected to because of the absence of such verification. Held, that it was an irregularity only, and was waived by receiving and retaining it.</p> <p>2. Same—Variance.</p> <p>Where objections were made to the admission of evidence on the ground of variance between the proof offered and some items of the account furnished, the court deeming the objections not well founded, certainly not to an extent in any respect prejudicial to the defendant. Held, that the variance, if any, was immaterial.</p> <p>3. Justice of the peace—When prohibited from buying claim—Code</p> <p>of Civil Procedure, § 3137.</p> <p>A justice of the peace is not prohibited from buying claims for the purpose of prosecution in the supreme court.</p> <p>4. Defenses—Pendency of another action—Must be set up in an-</p> <p>swer.</p> <p>The pendency of another action for the same cause, must be set up in tie answer to be available as a defense.</p> <p>5. Same—Proof—What insufficient to show action pending.</p> <p>Proof of the commencement of an action by the issuing and service of summons, no complaint being filed or served, does not show a suit pending for the same cause of action involved in the second.</p>

<p>1. Negligence—Railboads—Contbibutoby Negligence.</p> <p>It is negligence in one to attempt to cross a railroad track, without making any observation as to approaching trains. Much more, is it negligence in one seeing the locomotive and train, and knowing of its proximity, to step in upon the track just before the engine, but a few feet from it. If under way, and the person saw and knew that the train was approaching, such act on his part would be negligence per se as matter of law: so if in fact under way, but not observed by him to be approaching, his want of attention in not making proper observation for his safety, would likewise be negligence which would bar his right of recovery for any injury caused by the moving train.</p> <p>2. Same—Question eob juey.</p> <p>In an action against a railroad for damages claimed to have resulted to the plaintiff from the defendant’s negligence, where the evidence on the part of both plaintiff and defendant showed that the injury was occasioned while the plaintiff was attempting to cross the track within five or six feet of a locomotive, which was attached to a train of freight cars, and, according to the testimony of the plaintiff and his witnesses, the train was standing still; while, on the other hand, the defendant’s witnesses said it was then moving, that it did not stop until after the accident. Held, that the evidence being contradictory on the question whether the train was or was not in motion, the trial judge properly left this to the jury, instructing them that if they found the fact to be that the train was then in motion, their verdict should for the defendant, and such instruction was clearly right.</p> <p>3. Same—Non-suit.</p> <p>Had the fact been undisputed, or conclusively proved, that the train was then in motion, the court could and should have directed a non-suit.</p>

<p>1. Negligence—Master and servant—Duty of master in respect to</p> <p>MACHINERY FURNISHED.</p> <p>In an action by a servant against his master for injury sustained by defective machinery, where the evidence established that the machine furnished was a good, safe one in other respects, but had no sufficient appliance to hold back a brake until the motion of the machinery ceased after the connection with the power was broken: Held, not sufficient to establish the negligence of defendants.</p> <p>2. Same.</p> <p>The cases do not hold that the master is bound to furnish the best known or the best conceivable appliances. The duty of the master is performed if he furnish reasonably safe appliances, such as a prudent man would furnish if his own life was exposed to the dangers that would result from unsuitable and defective appliances.</p>

<p>1. Stock—Unauthorized sale—Damages—Measure of—Evidence —</p> <p>Sales of stock unauthorized—Evidence of sale within a reasonable time.</p> <p>The measure of damages in the case where a person makes an unauthorized sale of stock, which he is carrying for another, or holds in pledge, is the difference between the price received on the sale and the price such other party would be obliged to pay within a reasonable time after the sale to replace it. This is the rule, whether the stock is listed and can be bought from day to day in open market; and so, too, where purchases were infrequent, yet could be made with diligence.</p> <p>2. Same.</p> <p>If, for any reason, the stock could not be obtained, the question would still be its value at the time of its conversion, to be shown by the best evidence obtainable in the particular case.</p> <p>3. Same—Wiiat a reasonble time. .</p> <p>Where the stock alleged to have been sold in June without authority could have been purchased at the price credited to plaintiff for nearly six months after its sale, and was then (in November) advanced to double that price by a scheme of parties to get control of the stock. Relit, that the evidence of these sales made in November, at the time and under the circumstances which they were made, was inadmissible as a ground- of estimate of its value in June.</p> <p>4. Same.</p> <p>The limitation should, in all cases, be for a reasonable time, under the circumstances of the particular case.</p> <p>5. Practice—Costs—Not allowed on motion for new trial.</p> <p>An order for a new trial is not 'according to the practice, where it gives' ten dollars costs of motion.</p>

<p>1. Evidence—Declarations op judgment debtor, when admissible as against co-conspirator to defraud creditors.</p> <p>Where, in a suit against the sheriff, who levied on property standing in plaintiff’s name, but which was claimed to be the property of P., the judgment debtor, it appeared that P. was a co-conspirator with plaintiff and others in carrying out a scheme to defraud P.’s creditors: Held, that proof of statements made by P., to the effect that the property and business were his own, and that the business was conducted under cover because of his creditors, when taken in connection with evidence that P. conducted the business at A., and there had possession of the property, was admissible, although made at a place other than the store where the business was conducted and the property situated.</p> <p>3. Same—Insolvent debtors—Order op discharge, when admissible in</p> <p>EVIDENCE.</p> <p>To entitle an order of discharge of an insolvent debtor (discharged under the two-thirds act) to be put in evidence, it is not sufficient that it shows general jurisdiction of the subject matter; but that jurisdiction of the person and of the especial case, was acquired by the taking of the necessary steps prescribed by the statute to that end; and if the record fails in any of these particulars, the facts needful to jurisdiction must be established by proof aliunde.</p> <p>3. Same—Code Civil Procedure, § 3151.</p> <p>The recital in the discharge that “P., an insolvent debtor, residing at Mohawk, in the county of Herkimer, N. T.,” is not a statement or recital that his residence was specified in his petition as at Mohawk, nor is it equivalent to such a statement. This single omission is fatal to the discharge as evidence without other proof. Code Civil Procedure, § 2151.</p>

<p>1. Deed—Breach of covenant—Evidence as to damage—Admissibility of.</p> <p>The defendant was sued for breach of the covenant of seizin and warranty contained in a conveyance of leal property made to plaintiff. Defendant tried to have the deed reformed by inserting the reservation of certain water-ri-tilts theretofore conveyed to one Briggs, on the ground of mistake. The said Briggs, v ho owned the walei-right constituting the alleged breach of covenant, was called as a witness, and i.x reply t j the following ques ion by defendant’s counsel, “ What is the fair value of your dam in connection with your mill?” answered, “It is worth §10,000—the dam and water privilege.” The plaintiff’s counsel moved to strike out this an.wer as not the proper basis of damages; thereupon the defe; dant’s counsel stated “ that Ks object in offering the testimony was to show that if this dam and s'ream was worth $10,000, that defendant was a fool and plaintiff a knave in paying $4,000 for this water privilege, together with tifteen acres cf laud. Held, that the evidence u as inadmissible for the purpose for which it was offered, and that it was properly stricken out.</p> <p>3. Same—Proper form of question as to value.</p> <p>If it had been offered on the theory that ur.der the circumstances of the proof, evidence of a great disparity between the price s ated in the deed as the purchase-price of the property and the real value was to be considered in connection with other proof. Held, inadmissible; that the question should have been as to the value of the water-right in connection with the fifteen acres of land.</p>

<p>1. Highways—Commissionebs of, no powee to make contbact to build bbidges.</p> <p>A commissioner of highways of a town has no authority under, chapter 103, of Laws of 1858, as amended by chapter 443, of the Laws of 1865, to make a contract to build a bridge in place of an old one, even with the consent of the town board, except in case of damage or destruction after the annual town meeting.</p> <p>3. Same.</p> <p>Such power and authority is not conferred upon commissioners of highways by any other statute. Nor has the town board or the town any authority to make such contract.</p>

<p>Application for a mandamus to compel Charles H. Wicks and E. J. Swift, as school commissioners, etc., to issue a certificate to the relator, Mary B. Hill, showing that she is entitled to a free scholarship in Cornell University.</p>

The complaint and affidavits alleged that respondents were wholesale dealers in upholstery goods; that appellants did business under the name of the Eagle Parlor Furniture Company, and that from October 1st to December 2d, 1885, they sold them goods amounting to $936.26, on account of which $85.19 was paid November 30, 1885, leaving $851.07 due.

<p>1. Constitutional law—Electrical subways—Jurisdiction and powers</p> <p>OP SUBWAY COMMISSIONERS.</p> <p>By the acts of June, 1884, and June, 1885, providing for placing telegraph and other wires under ground, the legislature intended that the subway commissioners should have jurisdiction over the laying of all electric wires and cables, and of all companies using or intending to use underground wires through the streets, and authorized them to require conformity to plans approved by them.</p> <p>%. Same—Act op 1885, Laws 1885, chapter 499, not unconstitutional.</p> <p>The act of 1885 does not take away any franchise then existing to lay wires through the streets of New York, but simply regulates its use; the provision that the electrical subways shall be constructed according to a plan approved by the commissioners, being only an exercise of the police power of the state.</p> <p>3. Same.</p> <p>The provision in an act that another act named “is amended and made to conform in all respects to the provisions of this act,” is not within the inhibition of section 17 of article 3 of the constitution.</p>

<p>1. Railroads—Highway crossing—Conditions under which railroad is</p> <p>AUTHORIZED TO CROSS.</p> <p>Railroad companies are authorized to cross public highways upon the condition that they restore them to their former state, or so as not to impair their usefulness. The tracks may cross at grade, or above or below it, and the necessities of the railroad govern the choice.</p> <p>2. Same—Duty of railroad as to restoration of highway—Laws of</p> <p>1850, CHAPTER 140, ETC.</p> <p>The statutes relating to the restoration of a highway crossed by a railroad require compensation only when additional lands have been taken, and the duty of restoration need not be the original condition of the highway, but a may be one different, which does not impair its usefulness.</p> <p>3. Same.</p> <p>Defendant’s railroad crossed the highway below its grade, making a cutting which prevented public travel, and bridged the cutting at a height sufficient for the passage of trains, and made approaches by a gradual lifting of the .roadway to reach the bridge. Held, that this was proper, and was a restoring of the highway to its original use, and within its original lines, with simply a change of grade, and that an abutting owner was not entitled to damages for such change.</p>

<p>Contract—Construction—Eviction—What amounts to a breach.</p> <p>Plaintiff entered into a -written agreement with P. for the lease by him to plaintiff of the Union Square theatre for three certain weeks at the rent of $1,600 for the first two and $1,800 for the third week, rent to be paid on Monday in each week. Plaintiff paid on signing the contract $1,000, agreeing that it was to be applied to the payment of rent for the last week, but in case of failure of plaintiff to fully perform any of the conditions of the agreement the $1,000 was not to be applied toward the payment of any rent but was to be forfeited to P. for his own use and benefit and considered as liquidated damages. The first week’s rent was duly paid. The defendant’s employee in charge of the box office retained $326 received for certain performalices ¡ nd refused to pay it over to the plaintiff and defendant said they meant to keep it. '1 he plaintiff thereupon said “you have broken your contract,” and that if he did not get his money from them he would not give any more performances at the th atre. Plaintiff ceased to use the theatre and paid no more rent. Plaintiff sued for $1,326, and defendant claimed $3,729, and in addition to retain the $1,000. Meld, that the retention of the $326 did not constitute an eviction or breach of the contract. That plaintiff first violated it, but that the $1,000 should be regarded as liquidated damages and as covering all claims against plaintiff by reason of the breach of the contract. Plaintiff entitled to recover the $326, less amount of certain admitted claims.</p>

<p>Partnership—Agreement by one partner, on dissolution, to take</p> <p>ASSETS AND PAY THE FIRM DEBTS—WHEN RIGHT OF ACTION ACCRUES UNDER AGREEMENT.</p> <p>Plaintiff, and defendant Tobias, who were partnens, dissolved partnership. It was then agreed between them, that Tobias should have all the stock and bills receivable, and that she was to pay all the partnership debts then outstanding. She received under the agreement about $1,800, but had paid none of the debts. Judgments had been recovered against plaintiff and her to the amount of $1,600: Held, that the obligation to pay was an absolute*one, and, on failure to pay within a reasonable time, cause of action accrued to plaintiff against Tobias, and he was entitled to judgment for the amount of the judgments obtained against him whether he had paid them or not.</p>

<p>This is an appeal from an order made by a judge at special term, denying the defendant’s application for an order directing the plaintiff to file additional security for costs as a non-resident.</p>

<p>1. Insurance—Construction of policy.</p> <p>Where a printed policy of insurance has in connection with it a written</p> <p>indorsement made by defendants’ agents thereon. Held, that the written policy is incomplete and ineffective as a contract until made definite and certain by the “ indorsement,” which in each case fixes the amount and nature of the risk.</p> <p>2. Same.</p> <p>The printed clauses in a policy are subject to restriction and modification by such as are written.</p> <p>3. Same.</p> <p>Change of words may sometimes be resorted to when necessary to avoid a manifest contradiction or ambiguity. But this cannot be done where the meaning of the words used can be ascertained without any violence to the language.</p> <p>4. Same.</p> <p>By the terms of the printed policy the defendants agree to insure against loss, goods taken on board vessels, boats, railroad or carriage at and from ports and places. Upon the printed policy is a written “ endorsement ” in these words, among others, “ risks of fire and inland navigation while on vessels, steamboats or railroads, or in hotels, stores .and depots * * and while in custody of the assured or his traveling salesman.” The plaintiff’s goods were packed in trunks, and in custody of his traveling salesman, who was attempting to convey them in a wagon across a bay or creek in Louisiana, when they were thrown into the water and damaged. Held, that the endorsement must be treated as expressing the latest intention and agreement of the insurer and insured, and therefore the loss of plaintiff’s goods while laden in a carriage is not one of the risks covered by this insurance.</p>

<p>Negligence—Whabfs and stobes—Implied guabantee of condition.</p> <p>There was an agreement between defendants, the owners of certain wharfs, and a steamship company, that said company "were to have complete control of the wharf while used by them for unloading vessel, etc. Beld, that the defendants, in surrendering their wharf to the owners of the steamship company, impliedly held out that due and proper care had been taken by them in the construction and maintainance of their wharf to render them safe for the purpose to which they were to be applied, and were liable to plaintiff for injury done him by the falling of an improperly hung door, such defect being attributable to their ordinary want of care.</p>

<p>Appeal from judgment entered on verdict in favor of plaintiff.</p>

<p>1. Pleading— Complaint—Answer—Supplemental complaint, what it</p> <p>SHOULD CONTAIN—CODE OE CIVIL PROCEDURE, § 544.</p> <p>Plaintiff obtained leave after he was served with the answer to serve a supplemental complaint to which one of the defendants demurred, on the ground that there was a defect of parties defendant; and, second, that it did not state facts sufficient to constitute a cause of action against her. H- Id, that it is not necessary, nor was it intended by Code of Civil Procedure, § 544, that the supplemental complaint should set up all the facts constituting the plaintiff’s cause of action, or showing that those origit ally made defendants were proper parties to the action; that its only purpose was to show how the plaintiff’s rights have changed since he commenced his action, and to what relief he is now entitled.</p> <p>3. Same.</p> <p>It is not necessary to repeat the allegations contained in his amended complaint; that is still before the court, a part of the record, and when read with the supplement thereto, shows the present state of plai tiff’s demand and the relief which he now asks for.</p> <p>3. Same—What remedies the defendant has.</p> <p>The defendant has other remedies besides to demur to the supplemental complaint. If the facts stated in the supplemental complaint are true, he must admit them, and so doing cannot deprive him of any right. If they are false, he can deny them, and the plaintiff can gain nothing nor can defendant lose anything by his false allegations.</p> <p>4. Same.</p> <p>When defendant comes to trial he may stand on his original answer, and if then the plaintiff proves no cause of action against him, he will have judgment dismissing both complaints.</p>

<p>1. Attachment—Sufficiency of proof of fraudulent disposition of</p> <p>property—Code Civil Procedure, § 635.</p> <p>Where the defendant in buying goods made no false statements as to his ability to pay and used no artifice to mislead or throw the plaintiff off of ■ his guard, he cannot be charged with fraud, although he knew at the time that he was insolvent. The fact that he was insolvent when the debt was created, and omitted to inform the plaintiff of his insolvency is not enough to entitle plaintiff to an attachment. See Code Civil Procedure, 635.</p> <p>2. Same.</p> <p>The sale of goods by a retail dealer in the usual course of business does not show that the dealer is making a fraudulent disposition of his property, nor does the absolute refusal by a debtor to unbosom himself to his creditor even tend to prove that the debtor intends to place his property where his creditors cannot reach it.</p> <p>3. Same—Assignment.</p> <p>The fact that the defendant included in his schedules of liabilities more debts than he disclosed to the plaintiff just before the assignment is of itself no evidence of fraud unless it should appear that the debts mentioned in his schedules, or a portion of them, were fraudulent.</p>

<p>1. Buffalo (city of)—Practice—Actions to recover penalties for</p> <p>VIOLATION OF CITY ORDINANCES—MANNER OF BRINGING—MAY BE COMMENCED BY WARRANT—ClTY CHARTER—LAWS OF 1870, TITLE 3, SECTIONS</p> <p>8-17—Hot repealed.</p> <p>That part of the city charter of Buffalo prescribing the manner of bringing actionsto recover penalties for the violation of certain city ordinances contained in Laws 1870, chapter 519, title 3, sections 8-17, have not been repealed ; and if an action for the penalty for selling adulterated milk be brought in a court held by a justice of the peace the first process may be a warrant or a summons.</p> <p>2. Same—Evidence—Witness not compelled to answer question tend-</p> <p>ing TO EXPOSE HIM TO PENAL LIABILITY.</p> <p>In action brought to recover penalty for selling adulterated milk contrary to a city ordinance. Held, that it was error to compel defendant against his objection to testify that he was in the business of selling milk at the túne alleged in the complaint, etc., as it had a tendency to expose him . to a penal liability.</p>

<p>1. Railroads—Streets—Abutting owners entitled to damages when</p> <p>PART OE STREET IS TAKEN BY RAILROAD.</p> <p>The plaintiff owned land abutting on the north side of Water street, in the city of Buffalo. The city’had acquired the fee of the street, which is sixty-six feet wide, forty-two feet is roadway and twelve feet on each side is sidewalk. The defendant obtained a grant from the common council of said city to lay its tracks over said street, in front of plaintiff’s property, on a grade above the street level. The railroad has exclusive use of the embankment, which is five and six feet high, and occupies twenty-four feet of the width of the street, leaving nine feet of roadway on each side. Held, that notwithstanding the action of the city authorities in making the grant, the defendant is liable t the plaintiff for the injury to his property in appropriating the street and deoriving Mm of the full and free access, thereto.</p> <p>2. Same—Measure of damages.</p> <p>The measure of damages in such a case is the depreciation of the plaintiff’s property by reason of erecting this embankment. Uline v. N. 7. 0. and H. B. B. Go., 4 East. Rep., 30, distinguished. It is error in estimating-these damages to take into account plaintiff’s loss of business and inconvenience from noise and smoke' incident to running the cars in operating the road.</p>

<p>1. Municipal court of Buffalo—Practice—Failure to subscribe the</p> <p>COMPLAINT DOES NOT TAKE AWAY THE JURISDICTION OF THE COURT.</p> <p>Where on an action upon contract for the recovery of money only commenced in the municipal court of Buffalo, the complaint was not subscribed by either of the plaintiffs or their attorney, but the affidavit verifying the complaint was subscribed by one of the plaintiffs. Held, that the failure to subscribe the complaint was at most a mere irregularity, and is not an error which touches the jurisdiction of the court either as to the person of defendant or the cause of action. That the signature of the plaintiff at the end of the complaint verifying the cause is a sufficient subscription to meet the requirement of the statute.</p> <p>2. Same—Code of Civil Procedure, § 520.</p> <p>The sections of the “municipal court act” under consideration were intended to conform the proceedings in that court to those in courts of record in similar cases, and as prescribed by sect on 520 of the Code of Civil Pro- ■' cedure. If the affidavit verifying a pleading is subscribed by the party, it is a sufficient compliance with the provision requiring the oleading to be subscribed by him.</p>

<p>Appeal from judgment dismissing the complaint on plaintiff’s resting his case,</p>

<p>1. Buffalo (City of) public park—Taking lands for—Damages can be</p> <p>ALLOWED ONLY FOR REAL PROPERTY TAKEN—NONE CAN BE ALLOWED FOR AN INJURY TO, OR FOR THE COSTS OF REMOVING PERSONAL PROPERTY—</p> <p>Compensation may be allowed for leasehold interest in land—, Laws of 1884, chapter 159.</p> <p>W., R. and others owned land which they leased to B. and W. for a term of five years from April, 1888, with a provision for a renewal for a term of five years if B. and W. gave written notice of their election to renew. Such a notice was given within the time limited. There were certain conditions as to sale of the land, B. and W. agreeing if they did not purchase to remove the ice-houses, etc., which they were to erect in case of a sale or at the end of the term. B. and W. erected the ice-houses, etc. The city of Buffalo took proceedings under laws of 1884, chapter 159, to acquire the land where the ice-houses, etc., were as an addition to the public park. Commissioners were appointed to ascertain the just compensation to he paid the owners of the land and persons interested in the land. Held, that B. and W. were not entitled to compensation for the ice-houses, etc., as they were personal property which they were entitled to remove, hut that they were entitled to compensation for their leasehold interest in the land under the renewal of the lease which they had elected to take. That W., R. and others, the lessors, were only entitled to the value of the land taken less the value of the leasehold of B. and W.</p> <p>3. Same—Only market yaltje to be awarded—Consequential damages</p> <p>NOT TO BE ESTIMATED.</p> <p>In such cases only the market value of the land can be awarded. Consequential damages arising out of the interruption of business; inability to perform contracts, expenses of removing personal property, etc., are not to be estimated in assessing damages.</p> <p>3. Same.</p> <p>The law under which this land was taken only authorized land to be taken and personal property could not be taken under it.</p> <p>•4. Same—When buildings, etc., abb personal property op the lessee.</p> <p>Although the lessors did not in express terms agree that the lessees might remove the buildings at tne end of the term or terms or before; but as B. and W., the lessees, agreed, in case of sale of land, they would remove them and as the buildings were erected for business purposes and were to be used only for that purpose. He d, that the buildings remained the personal property of the lessees B. and W., and that they were not entitled to compensation for them but could remove them. Matter of N. Y. C. and H. R. R. Co., 35 Hun, 306, distinguished.</p> <p>•5. Same—Commissioners not bound by opinions of witnesses as to value.</p> <p>The commissioners are not limited to the opinion of witness or bound by their estimates of value. They are to view the land and make what they consider a just award.</p> <p>>6. Same—Evidence.</p> <p>Commissioners in cases of this kind axe not bound by the rigid rules of evidence enforced in the trial of causes in the courts, hut they may properly relax those rules, when justice and the nature of the proceeding require.</p>

<p>1. Criminal law—Indictment—Grand larceny—Embezzlement—When</p> <p>FORMER TRIAL UNDER INDICTMENT FOR GRAND LARCENY IS NO BAR TO SECOND INDICTMENT FOR EMBEZZLEMENT—LAWS OF 1867, CHAPTER 955.</p> <p>A former trial is no bar unless the first indictment was such as the accused might have been convicted upon by iiroof 0f yle facts set forth in the second indictment. To constitute a bar the offense charged in both indictments must be identically the same, both in law and fact.</p> <p>2. Same.</p> <p>Where defendant had been indicted for grand larceny in taking the same-money which, in a second indictment, he was charged with having embezzled, he having been tried on the indictment for larceny and acquitted, and on the trial of the second indictment for embezzlement, under chapter 955 of Laws of 1867, he pleaded the former trial in bar: Held, that as the offense charged in the first indictment (grand larceny) could not be established by proof of the facts alleged in the second indictment, and which constituted the crime of embezzlement, as defined by the statute, the former trial is no bar.</p> <p>3. Same—Constitutional law.</p> <p>That the identity of the offenses charged in the two indictments must exist, both in law and in fact, in order to make the plea of a former trial available as a bar, is entirely consistent with the constitutional provision, which is that “No person shall be subject to be twice put in jeopardy for the same offense.” Constitution of New York, article 1, § 6.</p> <p>4. Same—Plea of former trial and not guilty—Jury must pass upon</p> <p>both issues raised—Code of Criminal Procedure, £§ 437, 442, 449.</p> <p>Where the record, on a former trial, showed that there were two pleas, one of not guilty and the other a former acquittal, made by the defendant to the indictment, yet the only verdict rendered by the jury appearing on the record, is “guilty as charged in the indictment:” Meld, that as the jury did not find against the defendant upon his plea of former acquittal, and as there is no verdict upon the issue raised by that plea, and no judgment thereon, a new trial must be had to correct the error in that respect.</p>

<p>Code of Civil Procedure, § 2606.</p>

<p>Motion for reargument.</p>

<p>Appeal from order vacating discontinuance.</p>

Reargument upon question whether the order appealed from should be modified as directed in decision announced at January general term and upon question of costs of appeal.

<p>Fraud—When question of, should not be submitted to the jury, not</p> <p>ALLOWED TO BE PREDICATED UPON PROMISSORY REPRESENTATIONS.</p>

<p>Amendment of answer and bill of particulars—Order permitting, IN DISCRETION OF COURT—WHEN WILL NOT BE DISTURBED ON APPEAL.</p>

<p>Receiver—Action to set aside sale of assets of a firm by one partner IN THE ABSENCE OF THE OTHER—CASE NOT ONE FOR THE APPOINTMENT OF A RECEIVER.</p>

<p>Reference—By consent.</p>

<p>Appeal from a judgment entered upon the report of a referee.</p>

<p>Appeal from order denying motion to annex bill of particulars to the judgment-roll.</p>

<p>Case submitted without action.</p>

<p>Appeal from order denying motion for mandamus.</p>

<p>Appeal from judgment rendered at circuit.</p>

<p>Costs—Restitution—When attorney required to restore costs improperly ALLOWED.</p>

<p>Contract for sale and purchase of real estate—Agreement to give</p> <p>GOOD TITLE AS OF DATE OF AGREEMENT CLEAR OF ALL LIENS EXCEPT MORTGAGE MENTIONED—TAX ASSESSED PRIOR TO DATE OF AGREEMENT BUT NOT CONFIRMED UNTIL AFTER SUCH DATE WAS NO EXISTING LIEN AT DATE OF AGREEMENT.</p>

<p>Appeal from judgment entered on verdict.</p>

<p>Case submitted without action.</p>

<p>Appeal from an order appointing a receiver.</p>

<p>Injunction—Assessing damages—Defendant entitled to reasonable compensation for expenses incurred in dissolving injunction— Affidavit should show what would be reasonable sum.</p>

<p>Contract of hiring — Conflict of evidence as to whether the hiring</p> <p>IS FOR ONE YEAR OR FOR ONE MONTH, ON TRIAL—CASE ONE SOLELY FOR JURY.</p>

<p>Highway—When village street should be opened.</p>

<p>Complaint to recover money loaned—Answer that the money was</p> <p>NOT LOANED BUT ADVANCED UNDER AN AGREEMENT—CONFLICTING EVIDENCE—ERRORS OF COURT IN CHARGING JURY.</p>

<p>Motion fob reargument—When should be denied—Landlord and</p> <p>TENANT CASE—PROCEEDINGS TO REMOVE TENANT MAY BE TAKEN BEFORE POLICE JUSTICE IN CITY OF BROOKLYN—HlS JUDGMENT REVERSIBLE UNDER SECTION 2260 OF CODE OF ClVIL PROCEDURE—No APPEAL UNDER Criminal Code—Title.</p>

<p>Trespass—When" title comes in question—Costs.</p>

<p>Motion eor reargument—When will be denied.</p>

<p>Reargument—When will not be granted.</p>

<p>Usury—Reference—When court will not disturb judgment entered</p> <p>UPON REPORT OF REFEREE.</p>

<p>Appeal—Defective record.</p>

<p>Will—Construction of.</p>

<p>Complaint—Erroneous to dismiss, on the merits, where the issues</p> <p>HAVE NOT BEEN LITIGATED.</p>

<p>Award by commissioners for land taken for reservoir—Regularity</p> <p>of proceedings.</p>

<p>Jury—Where the sole question submitted had reference to the</p> <p>AMOUNT DUE THE PLAINTIFF, WHICH WAS LIQUIDATED BY THEM—YERDICT SUSTAINED.</p>

<p>Reargument granted.</p>

<p>Trial by jury—Questions of fact for jury—When refusal to submit</p> <p>WHOLE CASE TO JURY WOULD BE ERRONEOUS—EXCESSIVE VERDICT—WHEN COURT WILL NOT INTERFERE ON THAT GROUND.</p>

<p>Mandamus—To compel defendant to restore delator to membership</p> <p>FROM WHICH HE HAD BEEN EXPELLED—IMPROPER EXPULSION.</p>

<p>Referee—Trial by—Findings of fact—Judgment upon modification of</p> <p>JUDGMENT.</p>

<p>Reference—Action by lawyer to recover for professional services.</p>

<p>Action to recover quantity of brick—Defense that the brick was</p> <p>DELIVERED UNDER A CONTRACT TO DELIVER A CERTAIN QUANTITY, AND THAT THE CONTRACT WAS ENTIRE—AND PLAINTIFF COULD NOT RECOVER BECAUSE HE HAD ONLY DELIVERED PART—VERDICT OF JURY FOR PLAINTIFF SUSTAINED.</p>

<p>Action for damages by reason of the explosion of powder or dynamite — Judgment by default—Motion to open—Denial by city court of Yonkers—Reversal of order denying.</p>

<p>Costs — In equitable action discretionary — Receiver—When costs</p> <p>SHOULD NOT BE ALLOWED AGAINST HIM.</p>

<p>Railroads—Damage to property by the operation oe road.</p>

<p>Landlord and tenant—Disfossessary proceeding—Jurisdiction.</p>

<p>Contract—Of hiring—Case where appellate court will not set aside</p> <p>VERDICT OP JURY AS AGAINST THE EVIDENCE—DAMAGES.</p>

<p>Usury—Conflicting evidence—When verdict of jury controlling on</p> <p>appeal.</p>

<p>Negligence—Buffers on cars—Servant • by accepting employment assumes tiie risks and perils incident thereto—Duty of master.</p>

The judge found that the delivery of a piano, which was the subject of this action, to the defendant, was upon a pledge thereof for a loan of fifty dollars, and not upon a sale of the piano, as claimed by the defendant, and gave judgment that plaintiff recover possession of the piano upon paying or tendering the amount due, with legal interest, viz.: $51.50; and if defendant were unable, or refused to deliver the piano, that plaintiff recover-its value, $200, less the said…

<p>Negligence—Evidence—Carelessness op deceased.</p>

<p>Breach op warranty of title—Agreement to indemnify.</p>

<p>Appeal to court of appeals—When application will be denied.</p>

<p>Contract—Agreement providing for surrender of property at a specified time—When tender excused.</p>

<p>Evidence—Copy of letter when admissible—Insolvency, though not</p> <p>PROOF OF AN INTENT NOT TO PAY, IS RELEVANT TESTIMONY ON THE SUBJECT.</p>

<p>Plaintiff’s exceptions ordered to be heard in first instance at general term.</p>

<p>Case—Duty of judge before whom the cause is tried to settle case— From his determination no appeal will lie.</p>

<p>Negligence—Insufficient evidence to show the city guilty of negligence—The law does not require the city to insure the absolute</p> <p>SAFETY OF THE SIDEWALKS OR FLAGGING IN THE PUBLIC STREET.</p>

<p>This is an appeal from an order setting aside the verdict of a jury and granting a new trial. The action was brought to recover the sum of $5,000 damages for injuries sustained by the plaintiff from the explosion of a gasometer kept and used by the defendant in the room where the plaintiff worked. The plaintiff was in the employ of the defendant, and the gasometer was kept in the room in which the plaintiff was employed and was used by the defendant for the purpose of testing the gas regulators. The plaintiff testified that on the 33d of April, 1884, at lunch time, he and a man named Wyer and an errand boy named Adolph, also employed by the defendant, were in the room eating their lunches. After lunch the plaintiff passed from one part of the room to another to get his pipe, and, while doing so, Wyer called to him and said— referring to the plaintiff, who was sitting close by the gasometer—“Pete, look what the Chinese is doing ?” The boy said: “I am going to see if there is any life in this,” (meaning the gasometer). The plaintiff said, “You had better not do it.” The boy said, “ I will,” and he struck a light and there was a flash, and the plaintiff was knocked senseless; he was very severely injured. The jury found a verdict for the plaintiff and assessed the damages at $349.10.</p>

This is an appeal from a judgment entered upon the verdict of a jury in favor of the plaintiff against the defendant, and from an order denying a motion to set aside the verdict and for a new trial, on all the grounds set forth in section 999 of the Code.

<p>Appeal from a judgment entered on a verdict of a jury in favor of the plaintiff for §3,500 damages and costs, and also from, an order denying defendant's motion for a new trial.</p>