Volume 10 — New York Appellate Division Reports

Appeal by the defendants, James M. Waterbuiy and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 27th day of March, 1896, upon the verdict of a jury rendered by direction of the court after a trial at a Trial Term of the Supreme Court held in and for the county of New York.

Appeal by Johnson & Johnson from a judgment of the Supreme Court in favor of Henry S. Ward, as receiver of the American Steam Boiler Insurance Company, entered in the office of the clerk of the county of New York on the 13th day of February, 1896, upon an order of the Supreme Court, made at the New York Special Term, confirming the report of a referee and dismissing the appellants’ claim.

<p>Negligence — injury from the breaking of the brake chain of a street car—a charge that the best appliance must be used, where there is no proof of a better appliance, is erroneous.</p> <p>In an action brought to recover damages for injuries resulting to the plaintiff while a passenger upon the defendant’s street car, it appeared that the driver lost control of the car in consequence of the breaking of one of the large links in the brake chain. The issue on this subject presented to the jury by the evidence was as to the condition of the chain and the care and prudence exercised by the defendant in inspecting or examining it in order to ascertain its condition before the car was put into use on the day when the accident happened, there being no evidence as to the existence of any other or better appliance for use as a brake upon such cars.</p> <p>The defendant requested the court to charge, and it charged, the jury that the appliances used by the company must be the best appliances which skill and science had contrived, and which were in practical use.</p> <p>NeM, that the charge was erroneous ; that it raised the issue whether there were any other or different or superior appliances in use for the purposes of a brake, when there was no evidence in the case of the existence of any such improved appliances.</p> <p>Williams, J., dissented.</p>

Appeal by the plaintiffs, David Ackerman and others, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 4th daiy of June, 1895, upon the decision of the court rendered after a trial at the New York Special Term dismissing the plaintiffs’ complaint upon the merits.

<p>Certiorari issued out of the Supreme Court and attested on the 20th day of May, 1895, directed to the Court of Oyer and Terminer of the city and county of New York, commanding it to certify and return to the clerk of the county of New York all and singular the proceedings had in said court which resulted in the entry of the order in the clerk’s office of the county of New York on the 15th day of May, 1895, adjudging the relator guilty of a criminal contempt.</p>

<p>Appeal by the plaintiff, Peter Labouisse, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 24th day of April, 1896, upon the decision of the court rendered after a trial at the New York Special Term sustaining the defendant’s demurrer to the plaintiff’s complaint in an action brought to recover damages for an alleged libel.</p>

Appeal by the defendant, Otto F. Degener, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 24th day of August, 1896, denying his motion to cancel the lis pendens filed in the action.

Appeal by J. Walter Thompson, a judgment creditor of Schloss & Sons, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of July, 1896, denying his motion that the sheriff have leave to levy upon the property of Schloss & Sons in the hands of the receiver of said firm.

<p>Equity will not interfere where the party has a perfect defense (a release of the cause of action) at lam — a preliminary injunction restraining the prosecution of an action at law—not res ad judicata.</p> <p>A court of equity will not interfere to enjoin a pending suit at law to which there exists a perfect legal defense, nor where the ground for relief is as equally available at law as in equity; where the matters of defense are equally available in a court of law, the fact that they are complicated and that it is more difficult to present them there, is not a sufficient reason that equity should interfere.</p> <p>Where an injunction is asked for, the fact that a preliminary injunction was granted upon affidavits, will not make the decision of the motion an adjudication in the case binding upon the trial thereof.</p> <p>In an action brought by one Salvatore Cantoni to restrain the defendant from prosecuting an action which she had brought in the Superior Court of the city of New York, or from bringing or prosecuting any other action against him, upon the cause of action set out in such action, it appeared that Cantoni had induced the defendant, as she alleged, to leave her husband, and to procure a divorce; and that by promising to marry her he had induced her to live with him as his wife; that they had had several children, and that he had cast her off, and had refused to fulfill his promise to her.</p> <p>After they had parted he induced her to execute a general release to him upon the payment of sixty dollars, which release she alleged was procured by fraud. After she had executed the release she brought an action against Cantoni for the damages growing out of his failure to perform his promise to her. This action was settled by the payment by Cantoni to the defendant of $6,000, and the defendant then executed an agreement, by which she agreed not to commence any action whatever upon any cause of action which she had against Cantoni, and made various affidavits admitting away her rights.</p> <p>About two years later she brought another action against him based upon substantially the same facts, she claiming that the agreement not to sue was procured by fraud.</p> <p>The plaintiff thereupon brought the present action, on the trial of which all that appeared was that the defendant claimed to have a cause of action against Cantoni; that she had been induced by the payment of sixty dollars to release it; that after the release had been executed she claimed that it had been procured by fraud, and began a suit to enforce the cause of action covered by the release, and by the payment of a substantial consideration was induced to discontinue such suit, and promise not to sue Cantoni upon the cause of action alleged herein, notwithstanding which she brought another suit, the further prosecution of which the present action was brought to restrain.</p> <p>On appeal from a judgment in favor of the plaintiff, it was Held, that the action in equity could not be maintained as, if the release given by the defendant was valid, it afforded the plaintiff a perfect defense to her action at law;</p> <p>That a preliminary injunction restraining the defendant from annoying Cantoni might have been justified, under the allegations of the complaint and the moving papers to the effect that Mrs. Forster threatened to follow the plaintiff to his place of business, and there openly accuse him of having done the things alleged in the complaint; to stand upon the sidewalk threatening and importuning and harassing him, and to sit upon his door step, accusing him of these acts, until she could get money from him, but that the decision of the motion, was not an adjudication binding upon the trial of the case, and that the facts (above stated) established upon the trial did not justify the granting of equitable relief to the plaintiff.</p>

<p>Master and servant—-wrongful discharge — evidence as to.</p> <p>In an action, brought to recover damages because of the plaintiff’s alleged wrongful discharge from the defendant’s service, the main issue being whether the plaintiff was hired by the week or by the year, in which the plaintiff testified that he was hired by the year, and was in his statement as to the terms of the original agreement contradicted by the evidence furnished by a receipt for money which he had deposited with his employers as a guaranty that he would remain in their service, and was also in his testimony as to his having been hired by the year contradicted by a number of witnesses called on the part of the defendant, the court considered that the jury were not justified in finding for the plaintiff.</p> <p>O’Brien, J., dissented.</p>

Appeal by the defendant, Simon Eschwege, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 18th day of March, 1896, upon the verdict of a jury rendered by direction of the court after a trial at a Trial Term of the Supreme Court held in and for the county of New York.

<p>Proceedings to dispossess tenants—equity will not stag them pending an appeal — service upon one member of a firm of undertenants is sufficient.</p> <p>Where summary proceedings, instituted to dispossess tenants, have resulted in a judgment, the tenants cannot subsequently bring an action in equity to procure a stay pending the appeal. The law has provided the only remedy in such cases, and a court of equity cannot be appealed to to secure a stay of proceedings prohibited by statute.</p> <p>Where such proceedings are begun by service of the precept upon only one member of a firm of undertenants, it appearing that the other undertenant was a person of unsound mind and was absent from the city, the court considered that under the circumstances the service upon one member of the firm was sufficient to give the magistrate jurisdiction to entertain the proceeding and to issue a final warrant therein.</p>

Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 2'Tth day of March, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme Court held in and for the county of New York, and also from an order entered in said clerk’s office on the 25th day of March, 1896, denying the defendant’s…

<p>Covenant by a lessee to make alterations within ninety days — Ms duty to procure the approval of the building department — when the right of action accrues to the lessor—measure of damages.</p> <p>Where a lessee covenants within ninety days after the commencement of his term to make certain alterations in the demised premises set forth in certain plans and specifications, and that “all the above work will be done in accordance with the rules and regulations of the building department ” of the city of New York, it is the lessee’s duty to procure, or attempt to procure, the permission from the department necessary for the execution of the work.</p> <p>■ Semble, that the fact that the department subsequently, and after the expiration of the ninety days, required the plans to be modified is no excuse to the lessee. The right of action for a breach of the covenant accrues at once, and is not postponed until the end of the term.</p> <p>The measure of damages is the amount of decrease in value of the reversion at the time the breach occurs.</p> <p>Yan Brunt, P. J., and Ingraham, J., dissented.</p>

<p>Appeal by the plaintiff, W. Preston Hix, from a judgment of the Court of Common Pleas for the city and county of New York in favor of the defendant, entered in the office of the clerk of said court on the 25th day of June, 1895, upon the verdict of a jury rendered by direction of the court after a trial at a Trial Term of said- court, and also from an order bearing date the 20th day of June, 1895, and entered in said clerk’s office, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

<p>Mechanic's lien—effect of an order of a contractor, given wpon, and, accepted by, the owner, payable to a sub-contractor — limit of the assignee’s recovery — misdescription in the order of the contract price — nature of the sub-contractors claim — payments made by the owner to complete the work are not evidence of its value — an offer of judgment in a lien case, under the general provisions of the Code, proper — offer of judgment, not in personam.</p> <p>In an action brought to foreclose a mechanic’s lien upon a leasehold interest of the defendant Joseph F. McKone, the plaintiffs, claiming in their own right, and also in the right of the defendant Hugh Bobinson, proved that, in July, 1894, the defendant Hugh Bobinson agreed to do certain work upon the premises of the defendant Joseph F. McKone, for an amount which should approximate §1,200, and should not exceed §1,500. Bobinson began work, but thereafter failed and made an assignment, and at his request the plaintiffs undertook the contract under an order signed by Bobinson, requesting McKone to pay the plaintiffs the amount of their bill, “not to exceed the amount of my contract price of §1,200,” which order McKone accepted in these words: “ Accepted to be paid when the said contract is fully completed.” The plaintiffs continued the work, but left unfinished certain tiling and other work which they claimed they were not obliged to do, and which McKone testified that he paid §761.80 to complete.</p> <p>Meld, that under the agreement Bobinson became entitled to recover the reasonable value of the work done, his recovery, however, not to exceed §1,500;</p> <p>That this view was not affected by the recital in the order of the sum of §1,200, that amount being a mere misdescription of the contract;</p> <p>That the effect of the order was not to substitute the plaintiffs as contractors in the place of Bobinson; that it only gave the plaintiffs, as sub-contractors under Bobinson, the security of McKone’s responsibility up to the amount of §1,200;</p> <p>That the plaintiffs could recover under the order only what Bobinson could have recovered had he proceeded with the work (within a limit of §1,200), and that, therefore, McICone was entitled to deduct from the amount due the plaintiffs the value of the work not completed by Robinson or the plaintiffs;</p> <p>That, as the assignment to the plaintiffs covered certain services rendered by Robinson, and materials which he furnished, the plaintiffs were entitled to that extent to recover of McKone;</p> <p>That the evidence of McKone as to what he paid to complete the work was no evidence that the work done was of that value, the mere fact of payment being insufficient evidence of value.</p> <p>McKone made an offer of judgment, under section 738 of the Code of Civil Procedure, in these words: “ The defendant Joseph F. McKone hereby offers to allow judgment to be taken against him in this action, establishing the amount of the plaintiffs’ lien at the sum of one thousand dollars and costs.” This offer was not accepted.</p> <p>Held, that there was nothing in the provisions of the Mechanic’s Lien Act which prevented a party from making an offer of judgment under the general provisions of the Code of Civil Procedure;</p> <p>That inasmuch, however, as the plaintiffs had demanded, as they might, a deficiency judgment against McKone in personam, and as the offer made simply proposed to establish the amount of “the plaintiffs’ lien at the sum of one thousand dollars and costs,” it could not be said that the judgment of §600 which the plaintiffs obtained, with the additional security of a deficiency judgment in personam, was less favorable than a judgment of §1,000 accompanied by no right to enforce a deficiency.</p>

Appeal by the plaintiffs, John Kennedy and another, from an order of the Court of Common Pleas for the city and county of New York, made at a Special Term thereof and entered in the office of the clerk of said court on the 28th day of December, 1895, denying their motion for a retaxation of the costs in the action.

<p>A Wayale rider may use the slot of a cable road—he need, not look behind him for ccvrs which give no signals —Laws 1890, chap. 568, §§ 163, 163.</p> <p>A person riding a bicycle may lawfully use the aperture existing between the rails of a cable road and in which the cable runs. A bicycle rider, proceeding in this way, is under no legal obligation to look behind him in order to detect the approach of a cable car, which gives no signal of its approach, the rumble and noise of which he hears only just as he is struck by it.</p>

<p>Appeal by Thomas H. Spaulding, one of the legatees named in the last will and testament of Henry F. Spaulding, deceased, from a decree of the Surrogate’s Court of the county of Hew York, entered in said Surrogate’s Court an the 4th day of May, 1896, settling the accounts of the surviving trustees under the last will and testament of Henry F. Spaulding, deceased.</p> <p>The first clause of the will of Henry F. Spaulding appoints his executors. The second, third, fourth and fifth give certain legacies to specified individuals. The sixth clause gives, devises and bequeaths to his executors all the rest, residue and remainder of his estate, both real and personal, in trust to pay to his wife, Kate B. Spaulding, the sum of $10,000 annually during her life. The principal sum used to produce this income is given to his children, Thoman Hunt Spaulding and Margaret Thompson Schley, upon the death of his wife; and that portion of his residuary estate not necessary for such purpose is given to said children at his death.</p> <p>The question presented related to the right of the executors to take commissions also in their capacity as trustees, in regard to which the surrogate in his opinion said :</p> <p>“ The direction to the executors, who in one of the codicils are appointed trustees, and to whom was given the residuary estate, to separate from the body of the same the funds to yield the income to pay the annuity to the widow, and the charges affecting the leasehold, and the provisions for the appropriation for ‘ the trusts created by tlie will ’ of the securities designated, are a clear manifestation of the intention of the testator to constitute separate and distinct trusts as to the funds specified to be held and managed by the accountants solely in their character and capacity of trustees. The severance from the rest of the estate of the funds necessary for the trusts, and of the relation of the executors to such funds, and the consequent assumption of the possession and administration thereof by the trustees, were obviously intended to take place upon the ascertainment of the adequacy of the residuary estate to supply the same, and their separation from such estate. Such separation was, in fact, made in pursuance of the decree which was made upon the executors’ accounting, and which determined the amount of the residuary estate and directed its disposition. That decree recognized and, in effect, determined the intention of the testator to be such as I have previously indicated. It terminated the connection of the executors with the funds in question, and directed their distribution and transfer to the trustees, to be held and managed by them as such. Under these circumstances the right of the accountants to commissions as trustees is undoubted.”</p>

<p>Appeal by the plaintiff, Margaret B. Edson, individually and. as executrix, etc., of Marmont B. Edson, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 22d day of January, 1896, upon the decision of the court rendered after a trial at the New York Special Term dismissing the complaint upon the merits.</p>

<p> Trial—proof of admissions of a decedent—when a case should be sent to the jury, although the testimony of witnesses is only inferentially, and not directly, impeached. </p> <p>In order to raise a question for the jury as to the credibility of witnesses, it is not necessary that their testimony should be contradicted by the affirmative testimony of other witnesses. The circumstances under which the evidence is given, the relation of the witnesses to the party in whose behalf they testify, and the nature of the facts to which they testify, may be such as not only warrant but require the court to send the case to the jury, although there may be no witnesses testifying upon the other side. This is especially the case where the testimony relates to declarations and admissions alleged to have been made by a party who has since died.</p>

<p>Appeal by the defendants, Joseph Liebmann and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 20th day of March, 1896, upon the verdict of' a jury rendered by direction of the court after a trial at a Trial Term of the Supreme Court held in and for the county of Hew York, and also from an order entered in said clerk’s office on the 6th day of April, 1896, denying the defendants’ motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, Homer Lee, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 28th dajr of April, 1896, upon the decision of the court, rendered after a trial at the Hew York Special Term, overruling the defendant’s demurrer to the plaintiff’s complaint, with notice of an intention to bring up for review upon such appeal the decision of the court and an order entered in the clerk’s office of the county of Hew York on the 28th day of April, 1896, overruling said demurrer.</p>

<p>Mortgage foreclosure — an answer denying the complaint on information and belief puis in issue the execution and, delivery of the mortgage—when such a denial is authorized.</p> <p>In an action brought to foreclose a mortgage, a party defendant, alleged in the complaint to have a lien subsequent to the mortgage sought to be foreclosed,</p> <p>. interposed an answer denying that he had “any knowledge or information sufficient to form a belief ” as to any of the allegations in the complaint, save that the defendant claimed a lien upon the premises therein described, and then set forth his mortgage executed and recorded subsequent to that of the plaintiff.</p> <p>Held, that the answer raised an issue as to whether the plaintiff’s mortgage was duly executed and delivered;</p> <p>That, although a defendant may be able by inquiry to determine whether the allegations of a complaint are true, he is not bound to do so. Unless the facts alleged in a complaint are within the personal knowledge of a defendant an answer containing a denial upon information and belief is not frivolous.</p>

<p>A mortgage, when presumed to he paid after twenty years — when a one-half inch encroachment of a building on a street is not a defense to specific performance — when artificial boundaries control measurements and distances— Code of Civil Procedure, § 414; 3 B. 8. 301, § 48.</p> <p>In an action for specific performance, a mortgage dated and recorded in 1839, as to which there is no proof of any subsequent payment made upon it, or of any subsequent written acknowledgment of the existence of a right of action upon it, will be presumed to have been extinguished under the provisions of the Revised Statutes relative to rights of action which accrued upon a sealed instrument for the payment of money.</p> <p>The fact that a building, which has stood in its present situation for over thirty years without objection on the part of any one, is found to encroach a half an inch upon the street, does not constitute a valid objection which will justify a purchaser in refusing, to accept the title.</p> <p>One Roberts owned lots 745 and 747 East Ninth street. lie built a house on lot 747 which encroached upon lot 745 on the west three and a half inches. Afterwards he conveyed lot 745; and then lot 747, describing it by metes and bounds, and stating that it was “lot known as No. 747 East Ninth street.” The plaintiff Roberts’ grantees contracted to sell the lot to defendant, who refused to take it because the title was defective on account of the encroachment upon the adjoining lot. In an action for specific performance, it was held:</p> <p>First. That the placing of the west wall of the house over the line of the lot as measured was a practical location of that line by Roberts.</p> <p>Second. That the artificial boundary established by the erection of the west wall of the house fixed the location of that line in preference to the measurement ■which did not agree with the location.</p>

<p>Newly-discovered evidence — it must be likely to change the result — Recording Act — knowledge of one adverse title by a purchaser does not affect the question as to his good faith as to another, not known to him — effect of a lis pendens as constructive notice where no judgment is entered.</p> <p>A motion for a new trial, upon the ground of newly-discovered evidence, will not he granted unless the evidence is of such a nature as that, giving it a fair and reasonable construction and effect, it is likely to produce a result differeit from the result of the former trial.</p> <p>Whether the newly-discovered evidence is likely to change the result must depend upon the facts which have been made to appear by the affidavits submitted; and the party moving for a new trial is not entitled to have any inferences drawn in his favor of the existence of facts which have not already been made to appear, unless they are such as are necessarily to he inferred from the facts in evidence. ^</p> <p>The proper construction of the provisions of the Recording Act, that a deed, unless recorded, is void as against a subsequent purchaser in good faith, does not, in the absence of evidence charging the purchaser with an actual evil intent in making the purchase, impose upon a purchaser, who knows of one adverse claim, constructive notice of another adverse claim of which he has no information or suspicion.</p> <p>The law charges him simply with knowledge which he has, or with the inferences which he ought to have drawn from facts within his knowledge.</p> <p>One who burs in an outstanding title, which is defective as against another title of which the buyer has notice, and records his deed of the title so bought, does not, because of such notice, cease to be a bona fide purchaser as against a third title of which he has no notice, and if his deed is recorded before the deed of conveyance of the third title, his title is good under the Recording Act as against said third title.</p> <p>The filing of a notice of lis pendens, as to a party who has no actual notice of the pendency of the action, has only the effect of concluding and binding him by the judgment which may be entered in the particular action in which it is filed; and where no judgment is entered in the action the notice of Us pendens is ineffective.</p>

<p>Appeal by the defendant, The Prudential Insurance Company of America, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 24tli day of February, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme Court held in and for the county of New York, and also from an order entered in said clerk’s office on the 24th day of February, 1896, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the plaintiff, John C. Schantz, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Rew York on the 9th day of March, 1896, upon the decision of the court, rendered after a trial at the Rew York Special Term, sustaining the defendant’s demurrer to the plaintiff’s complaint.</p>

<p>Appeal by the defendant, George William Hart, as trustee, etc., of Julia Schoeneman, deceased, from so much of a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 16th day of March, 1896, upon the decision of the court, rendered after a trial at the New York S2>ecíal Term, as determines that said George William Hart, as testamentary trustee, etc., has no right, share or interest in the bond and mortgage sought to be foreclosed in this action or in the 23roceeds thereof ; that the plaintiffs are entitled to recover anything of the defendant Hart, as testamentary trustee, etc., and that the defendant Hart, as testamentary trustee, etc., pay any part of the costs of the defendant Loeb.</p> <p>The facts are fully stated in the dissenting opinion.,</p>

<p>Appeal by the defendants, Philip Schaefer and others, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 28th day of September, 1896, striking out their answer as sham and directing judgment, as prayed for in the complaint.</p>

<p> Injunction—damages recoverable upon the undertaking—where an injunction could, have been vacated without a trial, the defendants cannot recover a counsel fee for the trial, nor on appeal, nor for damages caused by the injunction or by its continuance where not opposed—interest where the pa/i'ty demanding the fund, has it in its possession. </p> <p>The plaintiff in an action, at the commencement thereof, obtained a temporary injunction, upon furnishing the usual undertaking in the sum of §500, restraining the defendants from, among other things, in any way interfering with, removing, dividing or distributing a certain guaranty fund, in which the plaintiff claimed an interest. No application was made by the defendants to vacate the injunction on the return of the order to show cause why the injunction should not be continued, nor was objection made by them to its continuance, except that a modification was asked for and obtained, and subsequently a second modification of the injunction was obtained by which the amount of the guaranty fund, which the defendants were restrained from interfering with or dividing, was reduced to §40,060, that being the portion of the fund which the plaintiff claimed.</p> <p>Upon the trial of the action, the complaint was dismissed upon the ground that it was brought in affirmance of an agreement of association, -which the complaint alleged was void as against public policy, and illegal as being a combination to enhance prices.</p> <p>An appeal was taken, and upon the plaintiff’s giving an undertaking^ by which the sureties therein undertook to pay all costs and damages which might he awarded against the plaintiff upon the appeal, and also that if the judgment, so far as it vacated the injunction, should he affirmed, the appellant (the plaintiff) would pay all damages which the defendants had sustained by reason of the injunction, or of its continuance, an order was entered upon the consent of the defendants continuing the injunction pending the appeal.</p> <p>The judgment of dismissal was affirmed at the General Term and in the Court of Appeals, and thereafter an order was made appointing a referee to assess the damages sustained by the defendants by reason of the injunction.</p> <p>Upon an appeal from an order confirming his report it was</p> <p>Held, that the objection, that the agreement was_ such that the court would not aid either of the parties to enforce it, plainly appearing upon the face of the complaint, it must he assumed that if that point had been presented to the Special Term, it would have vacated the injunction, and that, therefore, a trial not having been necessary to'get rid of the injunction, the defendants were not entitled to recover counsel fees for the trial of the action, nor for the appeal to the General Term;</p> <p>That the defendants were properly allowed a counsel fee upon the reference to assess the damages occasioned by the injunction and the expenses of the referee thereon;</p> <p>That the defendants being at liberty to deposit the fund held under the injunction wherever they saw fit, the only thing required of them by the injunction being that they should not distribute the fund among the individual members of the association as their property, and it appearing by their own showing that they had earned with this fund all that could be earned in the manner provided by the contract under which the fund was created, they were not entitled to recover the difference between legal interest and the amount of interest earned by the fund.</p>

<p> Employment of an actor—a proposal modified does not create a contract—parol evidence of the contract and of a usage—“ run" of a new play does not imply the whole season. </p> <p>Where an actor, in answer to the proposition of a manager to take part in a play at a compensation of seventy-five dollars a week, replies that he will play for the sum named and his railroad fares and hotel hills while traveling, no contract is made.</p> <p>Where a plaintiff attempts to establish the creation of a contract by correspondence with the above result, it is improper to refuse to allow the defendant to show by the plaintiff’s cross-examination subsequent conversations between the parties relative to the engagement and its conditions.</p> <p>Where the alleged contract of employment of an actor merely states that the play will be produced “ for a-run,” this latter expression cannot be construed to mean that the term of the engagement will be for the entire dramatic season. Where, in such a contract, there is an ambiguity as to the period of employment, it is competent to prove an established and well-understood theatrical custom that either party may terminate such an engagement upon two weeks’ notice.</p>

Appeal by the defendants, Bridget Hogan and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 7tli day of February, 1896, upon the decision of the court rendered after a trial at the New York Special Term.

<p>Negligence—crossing a railway track in front of a brilliantly lighted car — to what extent a ear driver is bound to look when not at street crossings—ringing a bell.</p> <p>In the city of New York a little before eight o’clock in the evening, and about dusk on a foggy night, a person started, after looking in both directions, to cross a street, in the middle of the block, not on a crossing, and stopped to let an electric car pass in front of him on the more distant of two tracks of a street railroad, whereupon a brilliantly lighted car, plainly visible to him, approached on the other track and struck him.</p> <p>Held, that he was guilty of contributory negligence;</p> <p>That, as he was not at a regular street crossing, the railway company’s agent was not chargeable with negligence for not having seen him;</p> <p>That it was immaterial that the bell was not being rung at the time, as street railway companies are not compelled to ring a bell from one end of the route to another.</p>

<p>Marine insurance—time policy — a ship sinking because a port hole was open— charge as to seaworthiness.</p> <p>In an action upon a time policy of insurance which insured a steamer for one year from the 9th day of August, 1887, against “all other perils, losses and misfortunes that have or shall come to the hurt, detriment or damage of the said ship, etc., or any part thereof,” it appeared that the ship sailed from port on April 29, 1888, and that about twelve hours later a leak was discovered, which the crew were unable to stop, and in consequence of which the vessel was run ashore where she sank. When she was raised, it was discovered that the water had entered through an open port hole communicating with an alleyway, and that the water could not be pumped out of the vessel for the reason that no pipes had been provided to conduct the water to the pump. There was evidence to show that the vessel was in a seaworthy condition when she sailed; that the port hole was provided with a proper deadlight which was closed at that time, and there was nothing to show how it subsequently became open.</p> <p>The court charged that if the jury found that the ship was seaworthy on' the day when the policy went into force, the burden of proof was on the defendant to show that the ship subsequently became unseaworthy by reason of the willful fraud of the owner or the assured, and that, if this were not so, the plaintiff was entitled to a verdict.</p> <p>Meld, that the. charge was erroneous ;</p> <p>That there was a question for the jury as to whether the vessel was, notwithstanding the absence of any pipe through which the water could pass to the pumps, seaworthy at the time of the inception of the risk, as to which the burden of proof rested on plaintiff. Per Ingraham, J.</p> <p>The court also submitted to the jury the question whether the vessel was seaworthy when she sailed, telling the jury that if they found she was seaworthy when she sailed, their verdict should be for the plaintiff ; if she was not, their verdict should be for the defendant.</p> <p>Meld, that under the evidence a verdict for the plaintiff could not be sustained under this charge. Per Williams, J.</p> <p>App. Div.]</p> <p>STAEBUCK v. PHENIX INS. CO.</p> <p>First Department, November Term, 1896.</p>

<p>■ Appeal by the defendant, The Union Railway Company of New York city, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 9th day of March, 1896, upon the verdict of a jury rendered after a trial at the Trial Term of the Supreme Court held in and for the county of New York, and also from an order entered in said clerk’s office on the 17th day of March, 1896, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p> A wife, joining with her husband in making a deed—she cannot retract and seek to hare her dower admeasured—a party paying the consideration for property, of which another takes the deed—no resulting trust. </p> <p>A wife joined with her liushand in deeding property to his daughter, and the husband at the same time deeded property to the wife, both deeds to be held by a third party until the death of the husband, and to be then delivered, and the daughter, as a consideration for the wife’s joining in the deed to her, promised the wife that she would, when she came into possession of the property deeded to her, pay off a mortgage which existed upon the premises conveyed to the wife. After the death of the husband, the wife went into possession of the property conveyed to her and accepted part payment of the mortgage from the daughter.</p> <p>Held, that it was too late for the wife to disaffirm her action in electing to take the deed of the premises conveyed to her by her husband in lieu of dower, and to attempt to have dower admeasured to her in the property which she and her husband had conveyed to the daughter.</p> <p>Where a father pays the consideration for a house and lot, the deed of which is taken in the name of his daughter, no trust results in favor of the father or of his estate after his death.</p>

<p>Sills and notes — who can enforce a note where its use is restricted by its accommodation maker — burden of proof as to diversion—sufficiency of proof of loss and of sea/rchfor a missing instrument to justify parol proof.</p> <p>Where a promissory note made for the accommodation of the payee, is taken in payment of an antecedent debt, the holder may recover upon the note unless its use was restricted by the accommodation maker; if the latter so restricts its use no person can recover upon it against him. except the party for whom the note was intended, or a bona fide purchaser thereof, for value.</p> <p>The burden of showing that the use of the note was restricted is upon the accommodation maker.</p> <p>The question of the sufficiency of proof of loss of, and of unavailing search for, a written instrument, justifying the admission of parol evidence of its contents, rests largely in the discretion of the trial court.</p>

<p>A note given to protect the maker against a creditor — action to compel its surrender — demurrer, that the agreement was fraudulent, that there had been a former action between the parties, upon the same cause of action, and that equity would not entertain an action to cancel a past-due note to which there was a defense at law.</p> <p>A complaint in an action in equity alleged that the plaintiff made and delivered to the defendant, without consideration, his note with the understanding that' an attachment was to be obtained thereon, as the plaintiff feared that a bank was about to bring an action against him; that an action was accordingly brought on the note, was tried, and the plaintiff recovered judgment to the effect that the defendant had no claim to said note; that the defendant had refused to deliver up such note to the plaintiff, and judgment was asked that the defendant be required to surrender the note. To this complaint a demurrer was interposed on the grounds: First, that the agreement was fraudulent, as to the bank; second, that the court would not entertain this second action between the parties upon the same cause of action; and, third, that a suit in equity could not be maintained for the cancellation of an overdue note to which there was a defense at law.</p> <p>field, that the demurrer was not frivolous.</p>

<p>Corporations — liability of trustees for a failure to file an annual report—Statute of Limitations, once set running, when not stayed by a renewal note.</p> <p>When the Statute of Limitations once begins to run against the liability of a trustee of a corporation, to a creditor thereof, arising out of a failure to file an. annual report, the running of the statute cannot be stayed or suspended by a renewal note accepted by the creditor from the corporation, after the maturity of the note renewed, for the amount of its indebtedness to him.</p> <p><¡¡uare, whether the running of the statute will be prevented by the giving of a renewal note before the original note, given to secure the loan made by the creditor to the corporation, is over due.</p>

<p>Appeal by the plaintiff, the Gibson Electric Company, from judgments of the Supreme Court in favor of the corporate defendant in each of the above-entitled actions, entered in the office of the clerk of the county of New York on the 28th day of February, 1896, upon the dismissal of the complaint upon the merits, directed hy the court after a trial before the court and a jury at a Trial Term of the Supreme Court held in and for the county of New York.</p> <p>. The actions were brought by the Gibson Electric Company against the insurance companies upon three policies of fire insurance, known as standard policies, issued by them to the appellant upon . property located in the town of Chatham, Columbia county, Ñ. Y. At the time of the issuing of the policies the premises upon which the buildings insured stood were incumbered by a mortgage held by one Job R. Furman, who was made a defendant in these actions upon his refusal to join the plaintiff in bringing the action. The loss occurred on the 23d day of October, 1891. Prior to the fire Furman began an action for the foreclosure of his mortgage by the service of a summons and complaint upon the Gibson Electric Company, mortgagor, and the insured in these actions. The mortgagor having made default, the action of foreclosure was prosecuted to judgment and the same was entered October 20, 1891, and on October 31, 1891, the property was advertised for sale.</p> <p>After the entry of said judgment and on the 11th day of November, 1891, an order was granted directing the plaintiff in that action to show cause why the default of the Gibson Electric Company should not be opened and the judgment and subsequent proceedings vacated, and subsequently the motion to open the default was granted, but upon the action being brought to trial, final judgment was entered dismissing the complaint of Furman.</p> <p>On the 28th day of October, 1891, an agreement for submission to appraisers was executed by the plaintiff and the insurance comjDanies. On the 4th day of November, 1891, while the appraisal was pending and prior to the award, the insurance companies were notified of tffe interest of Furman, as mortgagee. As a result, the agent for some of these companies visited the office of the lawyers from whom the notification had been received, and there obtained information in reference to the claim of Furman and of the proceedings for the foreclosure of the Furman mortgage and the entry of judgment thereon. The companies, after such knowledge, did 'not 'interrupt the appraisement, and it appears that in that connection the insured incurred trouble and expense and submitted its books for examination, and prepared and filed proofs of loss np to the 4th day of December, 1891, when the award was made. On the 16th day of December, 1891, proofs of loss were served on the companies, and on the seventeenth they notified the insured that they did not recognize the loss or the validity of the policies, because, with the knowledge of the insured, an action to foreclose a mortgage on the property had been commenced prior to the fire.</p>

<p>' Appeal by the defendants, Philip Hake and others, individually and as trustees of the Philip Hake Manufacturing Company, from a judgment of -the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 18th day of May, 1896, upon the decision of the court rendered after a trial at a Trial Term of the Supreme Court held in and for the county of New York before the court without a jury.</p> <p>The action was brought to recover a certificate for thirty shares of stock alleged to be wrongfully withheld hy the defendants after a demand therefor, or for its value, if a delivery could not be made.</p>

Appeal by the plaintiff, Richard W. Stevenson, as trustee, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of September, 1896, granting an order of inter-pleader in the action.

<p>Partnership — construction of an agreement as to charges for expenses on firm accountings—burden of pi'oof.</p> <p>Where partners enter into an agreement that an accounting shall he had at a future time, and ‘ ‘ that for the future no charges shall be made by the party of the first part for expenses or disbursements, save for expenses and disbursements actually paid out by said first party, and that any future settlement of partnership accounts shall be made under and pursuant to the rule here stated,” it is incumbent on “ the first party ” to establish by proof that the “ expenses and disbursements ” in his account have been actually paid or incurred.</p> <p>Semble, that but for the agreement it would have been incumbent upon the other party to have established fraud or mistake as to the charges which might be objected to on the accounting, there having been no objection made at the time that they were entered in the books and a presumption of acquiescence having • arisen therefrom.</p>

Appeal by the defendants, Jacob Engel and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13tli day of April, 1896, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal hy the plaintiffs, George Putnam Smith and another, from an order of the Supreme Oourt, made at the Hew York Trial Term and entered in the office of the clerk of the county of Hew York on the 12th day of May, 1896, denying the pffaintiffs’ motion for a new trial made upon the minutes.

■ Appeal by the defendant, Sarah F. Georgi, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 27th day of December, 1894, upon the report of a referee, in so far as said judgment determines or adjudges as between said appellant and her co-defendants that the instrument of conveyance, dated July 16, 1890, executed by the defendant, Otto H. Georgi, and recorded in the office of the register of…

<p>Negligence — duty of a cmr driver as to both turning the horses and applying the brake at the same time, where a child goes on the track a few feet in front of his cm\</p> <p>In an action predicated upon the defendant’s negligence, it appeared that while the plaintiff’s intestate, a child between seven and eight years of age, was attempting to cross Tenth avenue at Fortieth street, in the city of New York, from east to west, at or near the north crosswalk, a belt line car going south passed in front of him; that a car belonging to the defendant was following down the avenue about twenty feet behind the belt line car, and that west of the belt line car, and only four or five feet from the tracks, a cart was being driven up the avenue towards the north. After the belt line car had passed, the boy went on the track a few feet in front of the horses of the defendant’s car, which was going at the rate of about six miles an hour. The driver of the car, fearing that the horses would strike the boy, swung them to the left, but did not at the same time put on the brake, and the dashboard of the west side of the car struck the boy and threw him in front of the cart, which passed over his body and killed him.</p> <p>Held, that the complaint was properly dismissed;</p> <p>That, while the question as to the contributory negligence of the plaintiff’s intestate might properly have been submitted to the jury, there was no such evidence of negligence on the part of the defendant as required the submission of that question to the jury;</p> <p>That the primary and immediate danger was that the horses would strike the boy, and that the driver properly gave his undivided attention to averting that danger, and was not negligent because, in the midst of the excitement, he failed to perceive the posibility of a later danger, and to provide against it, by putting on the brake at the same time that he swerved the horses;</p> <p>That, at the most, the driver was only guilty of an error of judgment.</p> <p>Williams and O’Brien, JJ., dissented.</p>

Appeal by George S. Field and others, a copartnership known as the Union Bridge Company, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of blew York on the 13th day of June, 1896, denying their motion to be made defendants in the action. The action was brought to recover on four separately stated and enumerated causes of action.

<p>Mortgage foreclosure — the judgment should affect only rights acquired after the mortgage — Code of Civil Procedure, § 484.</p> <p>In an action brought to foreclose a mortgage (in the form of a deed) made on the 18th day of May, 1893, by Nathaniel Jarvis, Jr., and assigned to the plaintiffs, it appeared that, subsequent to the execution of the deed and on the 13th day of May, 1895, Nathaniel Jarvis, Jr., and one Albert Tilt, an owner of abutting land, agreed in writing as to the division or boundary lines between their respective properties, and Jarvis and his wife released to Tilt all of the land upon the east of a boundary line agreed upon, and Tilt released to Jarvis all of the land upon the west of that line.</p> <p>Held, that, as this agreement as to the boundary lines was made subsequent to the mortgage deed of the 18th day of May, 1892, Tilt and his wife were proper parties defendant to an action to foreclose it, but that the decision and judgment in that action should be so drawn as to cover and affect only rights in the mortgaged premises which were acquired subsequent to the mortgage deed.</p>

Appeal by the defendant, Francis O. Matthiessen, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 9th day of May, 1896, upon the decision of the court rendered after a trial at a Trial Term of the Supreme Court held in and for the county of New York, a jury having been waived.

Motion by the plaintiff, the Hew Haven Steamboat Company, for a new trial on a case containing exceptions, ordered to be heard at the General Term in the first instance upon the dismissal of the complaint directed by the court after a trial before the court and a jury at the Hew York Circuit on the 26th day of March, 1895.

<p>Judgment — not set aside for a failure to folio it— General Rule of Practice, No. 19 — Code of Civil Procedure, §§ 721, 784</p> <p>A failure to folio a judgment is a mere irregularity, and where it is not shown that such failure has prejudiced the adverse party, it is improper for the court to vacate the judgment upon that ground.</p>

<p> False representations—proof required to establish them. </p> <p>A person charged with malting false representations, who admits that the representations charged to have been made were made, is not bound to prove them to be true.</p> <p>The fact that statements are made by one party and assented to by the other, and that both parties are mistaken, does not establish an intent to falsify on the part of the party making the statements, especially where they are an estimate of the cost of work to be done.</p>

Appeal by tlie plaintiff, Henry W. Sage, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 26th day of June, 1895, upon the decision of the court rendered after a trial at the New York Special Term dismissing his complaint.

Appeal by the plaintiff, John Floettl, from a judgment of the Supreme Court in favor of the defendant, The Third Avenue Railroad Company, entered in the office of the clerk of the connty of Hew York on the 23d day of May, 1896, and also from a judgment in favor of the defendant, The Jonson Engineering and Foundry Company, entered in said clerk’s office on the 26th day of May, 1896, upon a dismissal of the complaint directed by the court after a trial before the court and a…

<p>Appeal by the defendants, Charles IT. Green and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 22d day of April, 1896, upon the verdict of a jury directed by the court after a trial at a Trial Term of the Supreme Court held in and for the county of New York, and also from an order entered in said clerk’s office on the 22d day of April, 1896, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the petitioner, Baphael J. Moses from, an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of October, 1896, denying his application to va.cate an order authorizing the receiver of the defendant to levy assessments upon the members of the association.

Appeal by the defendants, Andrew Wissel and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Kings on the 2d day of June, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme Court held in and for the county of Kings, and also from an order entered in said clerk’s office on the 2d day of June, 1896, denying the defendants’ motion for a new trial made upon the…

<p>Negligence — a charge that the harden rests upon the plaintiff to show that the defendant was negligent is proper.</p> <p>Where, in an action predicated upon the defendant’s negligence, the defendant’s attorney requests the court, by written request, to charge the jury “that the burden of proving that the defendant was negligent, in either or any particular, is upon the plaintiff,” and the court writes below this request “charged as in the general charge,” but in its general charge omits all reference to the burden of proof, and it nowhere appears that the jury were instructed on that point, it is an error which calls for a reversal of a judgment in plaintiff’s favor.</p>

Appeal by tbe defendant, the Murray Hill Bank,, and by the Committee of Depositors of tbe Murray Hill Bank, from an order of the Supreme Court, made at tbe Orange Special Term and entered in the office of tbe clerk of tbe county of Kings on tbe 23d day of September, 1896, appointing temporary receivers of tbe defendant and granting an injunction, and also an appeal by tbe defendant, the Murray Hill Bank, from an order entered in said clerk’s office on the 9tli day of…

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 10th day of April, 1896, upon the verdict of a jury rendered by direction of the court after a trial at a Trial Term of the Supreme Court held in and for the county of Kings, and also from an order entered in said clerk’s office on the 14th day of April, 1896, denying the defendant’s…

Appeal by the plaintiffs, Walter H. Burden and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Queens on the 4th day of March, 1896, upon the decision of the court rendered after a trial at the Queens County Special Term dismissing the plaintiffs’ complaint upon the merits.

<p>Corporations — liability contracted by the president after discussion by the directors — enforced, although tlrn certificate of incorporation requires it tobe“ duly ratified by its board of directors</p> <p>Where an order for a gas machine, involving a cost of more than §100, which has been discussed hy all the three directors of a corporation, is sent hy the president of the corporation in whose hands the matter was left, the vendor is entitled to recover from the corporation notwithstanding the fact that its certificate of incorporation provides that no debts shall he contracted or incurred involving a sum of §100 or over, except in writing under the corporate seal of the corporation; and, further, that all contracts made in violation of the provision should not be binding on the corporation unless duly ratified by its board of . directors.</p>

Appeal by the plaintiffs, J. Esler Eekerson and others, from so much of a judgment of the Supreme Court, entered in the office of the clerk of the county of Rockland on the 4th day of Hay, 1896, upon the decision of the court rendered after a trial at the Kings County Special Term, as adjudges and decrees “That the boundary lines between so much of the lands described in the further and amended supplemental complaint as belongs to and is owned by the plaintiffs, and so much…

<p>Appeal by James Y. Meade and the Town of Fishkill from an order of the Supreme Court, made at the Dutchess Special Term and entered in the office of the clerk of the county of Dutchess on the lltli day of July, 1896, confirming the decision of commissioners in favor of laying out a highway, and also from an order entered in said clerk’s office on the 4tli day of August, 1896, denying their motion to resettle the aforesaid order.</p>

<p>Appeal by the defendant, the New England Piano Company of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 18th day of June, 1896, upon the verdict of a jury rendered after a tidal at a Trial Term of the Supreme Court held in and for the county of Kings, and also from an order entered in said clerk’s office on the 19th day of June, 1896, denying the defendant’s motion for a new -trial made upon the minutes.</p>

<p> JSminent domain—the owner of the fee of a street is entitled to recover damages for its use hy a trolley railroad. </p> <p>‘The owner of the fee of the street in front of her property is entitled to recover the damages sustained hy her from the occupation and use of the street hy a ■corporation engaged in the maintenance and operation of a trolley road.</p>

<p>Appeal by John G. Landmann and another, sureties on the official bond of Frederick Roll, as general guardian of Emelie Weimann and others, from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 21st day of May, 1896, settling the accounts of Frederick Roll as general guardian of Emelie Weimann and others.</p>

<p>Negligence — crossing a street in a wagon, without looldng, in front of a motor car — duty of the motorman to moid a collision — trolley cars hare no paramount rights at street crossings.</p> <p>In an action brought to recover damages resulting from the death of the plaintiff’s intestate, caused hy the alleged negligence of the defendant, it appeared that the defendant operated a double-track trolley road in a street, on the north side of which the plaintiff’s intestate was driving in a westerly direction on a clear day in a covered bakery wagon having a window in front and sliding doors on each side, hut no opening in the back, the deceased occupying the driver’s seat and his son sitting at his left; that, as the deceased turned to the south to cross the tracks, one of the defendant’s cars was about fifty feet behind him, approaching at a rate of eight or ten miles an hour, and that,</p> <p>when the wagon had nearly passed the first ti'ack, the hind wheel was struck by the car, throwing the driver from the wagon and causing fatal injuries. The son of the deceased testified that his father looked out to the right, while it was shown that the car could only be seen by looking to the left.</p> <p>Held, that the questions of negligence and contributory negligence should have been submitted to the jury;</p> <p>That the trolley car was subject to control and could be stopped in a short distance, and that this was the reason for the rule that, as between them and other vehicles, they had no paramount right at street crossings;</p> <p>That the question whether the defendant was not negligent, in not decreasing the speed of the car when the motorman should have seen that the deceased was crossing the track, should have been submitted to the jury;</p> <p>That, although the deceased, had he looked to the left, would have seen the approaching car, yet if he was at such a distance that he would have been justified in attempting to pass before it, he would not be chargeable with negligence in proceeding as he did, without looking to the left, to cross the tracks.</p>

<p>Negligence — a passenger in a cable can' injured on a curve — necessity for high speed —pi’oof that no similar accident had been reported — burden of proof as to negligence:</p> <p>In an action brought to recover damages resulting from personal injuries caused by the alleged negligence of the defendant, it appeared that the plaintiff, while riding upon a cable car operated by the defendant in the city of New York, was thrown from her seat as the car was rounding a curve at Broadway and Fifteenth street and was injured. The defendant showed that the cable ran at a uniform rate of eight and three-quarter miles an hour, and that it had never .run at any different rate, and that it was necessary that the car should go around the curve at full speed, as otherwise there was a liability that the wire on the outside of the cable might break and be caught in the grip so as to prevent its release, thus causing the car to run away at the speed at which the ■cable moved. The plaintiff’s sister, who was with her at the time the accident occurred, testified as to the speed with which the car rounded the curve, but a question, put to her upon her redirect examination, whether, when riding upon this road before, she had ever known the cars to give such a jerk, was excluded by the court.</p> <p>Held, that the ruling of the court was not erroneous, as it was evident that the plaintiff could add nothing, in answer to this question, which was not within the import of her testimony given in her prior examination, and that consequently the plaintiff was not prejudiced by the exclusion of the evidence called for by the question;</p> <p>That a request of the plaintiff that the court charge the jury that “the accident being one which, in the ordinary course of the defendant’s business, does not happen when care is used, it affords, in the absence of explanation, sufficient evidence of negligence upon which to found a recovery, provided the other facts necessary to make out a case for the plaintiff are proven to the satisfaction of the jury,” was, in effect, a request to charge that the burden was with the defendant to prove its freedom from negligence, and was properly refused; That the fact that such an accident did not ordinarily happen at the place in question did not justify the assumption that plaintiff’s injury was chargeable to the want of care of the defendant, or to the negligence of the plaintiff; That, as the court had charged the jury that it was the duty of the defendant to use the very highest degree of care and skill in order that its passengers might not be subjected to any avoidable danger arising from the means of propulsion, and that, if it was necessary to send the cars around this curve at a high rate of speed, it was the duty of the defendant to see to it that the passengers were in such a position that they were not likely to be put in danger of accident, or " to warn them of their approach to the curve, it was not erroneous for the court subsequently to refuse to charge the jury that if they believed that the car went around the curve with more than usual velocity, they might consider that fact in determining the question of the defendant’s negligence;</p> <p>That it was competent for the defendant to prove that it had never had any other report of an accident to a passenger thrown off a seat on the curve in question; That, as a matter of fact, it was not negligent for the defendant to run its cars around the curve at full speed.</p>

<p>Appeal by the claimants, Edmund S. Wilson and another, from so much of a decree of the Surrogate’s Oourt of the county of Kings, entered in said Surrogate’s Court on the 24th day of January, 1896, as rejected the claims of the appellants and awarded costs to the contestante, and also from an order entered in said Surrogate’s Court on the 30th day of January, 1896, modifying said decree.</p>

<p>Shipping—pilots of boats must use reasonable care not to run down other boats, although they show no lights and are not being properly managed—effect of a failure to comply with the Federal statutes — testing the vision of a witness in the court room.</p> <p>In an action brought to recover damages resulting from the death of the plaintiff’s intestate, caused by the alleged negligence of the defendant, it appeared that three persons, of whom the plaintiff’s intestate was one, were coming down on the Brooklyn side of the East river, against a strong flood tide, in a steam launch of weak motive power. One of the persons in the launch testified that when near the defendant’s ferry slip, he saw the defendant’s ferryboat about 450 feet away, headed at a point below the slip; that when the ferryboat was within 200 feet of the launch, the launch whistle was blown repeatedly; that, shortly after, the ferryboat was turned in the direction of the slip, and the launch being in front of it and unable to get out of the way, a collision resulted and the plaintiff’s intestate was drowned. The launch displayed no light, and the evidence as to whether or not it was daylight at the time of the accident, and as to how far the launch could be seen from the ferryboat, was conflicting. Held, that a judgment in favor of the plaintiff should be affirmed.</p> <p>It was claimed by the defendant that the plaintiff’s intestate had failed to observe the requirements of the Federal statutes relating to navigation, in respect to license, skill requisite and in other respects.</p> <p>Held, that even were this so it did not excuse the defendant for failing to adopt reasonably precautionary means to avoid a collision.</p> <p>The defendant’s pilot’s attention was called on the trial, which took place nine months after the accident, by the court to some printed objects and figures with a view to testing his eyesight.</p> <p>Held, that as the witness had testified that his vision was unimpaired and remarkably good at the time of the trial, the admission of the evidence afforded no ground of objection to the defendant.</p>

<p>Negligence—permit by a city to store building material in a street — liability to a boy injured by pouring water upon lime —- proximate cause, when it is a question of law.</p> <p>In an action based upon the defendant’s alleged negligence, the plaintiff’s counsel stated in his opening that in April, 1894, the defendant, a municipal corporation, issued a permit to certain builders authorizing them to use a portion of its public streets upon which to place building materials, to be used upon a building then in course of construction; that about two weeks before the accident, which resulted in the injury complained of, took place, the builders placed some barrels of quicklime on the sidewalk opposite the building; that the staves of some of these barrels had sprung apart and lime had escaped in considerable quantities upon the sidewalk, where it remained during the two weeks referred to; that upon the day of the accident, the plaintiff, who was then a boy about seven years old, was playing about the barrels with other boys, when it was suggested that they should build a house in an adjoining lot, whereupon one of the boys gathered up some of the lime and carried it to a vacant lot where the plaintiff had a tomato can containing some water, into which one of the 'boys poured some of the lime, causing an explosion which destroyed his eyes. Meld,, that the complaint was properly dismissed upon the opening;</p> <p>That the court might take judicial notice that lime was a material which was useful and essential for building purposes, and that placing it upon the street in a proper and convenient manner, for use in the construction of a building, was permissible and did not create a nuisance;</p> <p>That the placing of the lime in the street and its escaping upon the sidewalk was not the proximate cause of the accident.</p> <p>. In order that an unlawful act may be held to be the proximate cause of an injury, the injury must so directly result from such act, that, according to common experience and the usual course of events, the injury might, under the particular circumstances, have reasonably been expected, and if the result is of such a character that reasonable prudence and foresight would not have forecast its happening as a consequence of the act, it may not be considered as a proximate cause.</p> <p>The question of proximate cause is ordinarily one of fact for the jury, but, where the facts present a clear case, the question is to be disposed of by the court as one of law. x</p>

<p>Appeal by the plaintiff, Thomas Hyland, from a judgment of the City Court of Brooklyn in favor of the defendants, entered in the office of the clerk of said court on the 18tli day of December, 1895, upon the dismissal of the complaint directed by the court after a trial before the court and a jury at a Trial Term of said court.</p> <p>The action was brought to recover damages for injuries alleged to have been caused by the negligence of the defendants in wrongfully and negligently piling and storing upon a public highway, in front of defendants’ stone yard, stones and flagging, in such wise as to cause the same to fall over and injure the infant child of the plaintiff who was playing on the street.</p>

<p>A certified copy of the record of letters patent is evidence thereof—a map attached to the letters patent.</p> <p>A grant from the People of the State of New York by letters patent may be proved, where the original letters patent are lost, by a certified copy of the record of such letters in the office of the Secretary of State. Such a copy is a transcript from a record kept “pursuant to law,” within the meaning of section 983 of the Code of Civil Procedure.</p> <p>The distinction between grants by the sovereign of a State and ordinary conveyances by individuals pointed out.</p> <p>Where letters patent are granted, of all the lots, situated in a particular county, under the waters of the .Hudson river within the boundary line of a railroad, as shown upon the maps thereof filed in the office of the clerk of said county, the maps on file control the grant as between themselves and a map referred to in and attached to the letters patent.</p>

<p>Certiorari—a petition to review an assessment amended so as to state the instances I and extent of dispropoi'tionate assessment.</p> <p>Where a petition which is presented for the purpose of obtaining a writ of certiorari to review an alleged erroneous assessment, among other allegations of error and illegality, alleges that other real and personal property upon the same roll was assessed at a less proportionate value than the real estate of the petitioner, but fails to specify the instances in which such inequality of assessment existed and its extent, as required by section 250 of chapter 908 of the Laws of 1896, the court, having acquired jurisdiction, has power, under sections 723 and 1997 of the Code of Civil Procedure, to permit the petitioner to amend the petition by specifying in it the instances and extent of this disproportionate valuation.</p> <p>Appeal by the defendant, The Board of Assessors of the City of Brooklyn, from so much of an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of. Kings on the 28th day of August, 1896, as orders that the relator have leave to amend its petition within twenty days after the entry and service of the order, by inserting in said petition, “ assessed other real and personal property in said city of Brooklyn upon the same roll at a less approximate value than they assessed the real estate of your petitioner in said city,” and by specifying the instances in which such inequality exists and the extent thereof, and stating that it is or will be injured thereby.</p>

<p>Appeal by the defendant, George W. Palmer, as comptroller of the city of Brooklyn, from an order of the- Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 17th day of June, 1896, directing the issuance of a peremptory writ of mandamus requiring him forthwith to pay a certain sum of money to the relator.</p>

<p>Appeal by the plaintiff, Mary Q. Henderson, from a judgment, of the Supreme Court in favor of the defendant, bearing date the 11th day of April, 1896, and entered in the office of the clerk of the county of Westchester, upon the decision of the court rendered after a trial at the Westchester Special Term.</p>

Appeal by the defendant, William H. Janes, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 27th day of April, 1896, upon the verdict of a jury directed by the court after a trial at a Trial Term of the Supreme Court held in and for the county of Kings. The action was brought by the plaintiff to remove a cloud upon her title to real estate, which was claimed to be owned by the defendant,

<p>Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.</p>

<p>Appeal by the defendant, the Brooklyn Lumber Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 29th day of April, 1896, upon the verdict of a jury rendered hy direction of the court after a trial at a Trial Term of the Supreme Court held in and for the county of Kings, and also from an order entered in said clerk’s office on the 4th day of May, 1896, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>The action is brought to recover damages in the nature" of demur-rage from the defendant, for the unreasonable detention of plaintiff’s lighter at the defendant’s wharf in Brooklyn, to which the plaintiff had carried a cargo of lumber owned by and consigned to the defendant.</p>

<p>Appeal by the plaintiff, Lydia P. Winslow, from a judgment of the Supreme .Court in favor of the defendant, entered in the office of the cleric of the county of Kings on the 12th day of May, 1896, upon the decision of the court rendered after a trial at the Kings County Special Term dismissing the complaint.</p>

Appeal by tlie defendant, the Third Avenue Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 2d day of June, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme Court held in and for the county of Westchester, and also from an order entered in said clerk’s. office on the 12th day of June, 1896, denying the defendant’s motion for a new…

<p>Appeal by the defendant, Henry Hall, Jr., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 19th day of March, 189G, upon the decision of the court rendered after a trial at the Orange Special Term.</p>

<p>A veteran, a city employee, disabled — he should inform the head of the department of his injury and of his intention to return to work — a discharge is proper when there is no work.</p> <p>Where a veteran, employed as a painter in the department of parks of the city of Brooklyn, is injured to such an extent that he cannot perform the duties to which he has been assigned, he must, if he desires to retain his position, notify the commissioner, not only.of the fact of his injury, but also of his intention to return to his work upon his recovery. It is not sufficient that the veteran gives notice of the injury to his immediate superior or foreman.</p> <p>There is no statute which prevents the discharge of a veteran, where the same is made in good faith and because of lack of work for him to do.</p>

<p>Appeal by the plaintiff, John Kam, from that part of a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 10th day of July, 1896, upon the decision of the court rendered after a trial at the Kings County Special Term, which provides “that the mortgage given by The Fred. Ilower Brewing Company, Limited, to one Richard Gr. Phelps on the 22d day of March, 1892, for the sum of $15,000, upon which there was due and unpaid on the 5tli day of May, 1896, the sum of $11,628, is a prior lien to that of the mortgage owned by the plaintiff and described in the complaint herein, and that the premises ordered to be sold herein to pay the plaintiff’s mortgage be sold subject to that of the said Phelps’ mortgage, which is now owned by the defendant Henrietta Benjamin,” and from that part of the judgment which forever bars and forecloses the rights of all ■ defendants,'except the rights of the said Henrietta Benjamin.</p>

<p>Appeal by the petitioners, S. H. H. Olark and others, as receivers of the Union Pacific Hallway Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Westchester on the 2d day of July, 1896, denying their motion for leave to sue Norman S. Dike, as receiver of the firm property of Field, Lindley, Wiechers & Go.</p> <p>Tho facts are stated in the opinion of G-aynor, J., delivered at the Special Term.</p>

<p>Contract, induced by fraud—evidence of fraud improperly admitted, not a ground for reversal if the fraud is otherwise established—evidence as to a banhfs insolvency.</p> <p>In an action brought to set aside a transfer of a bond and mortgage, made on the 1st day of February, 1894, by the plaintiff in return for certain shares of bank stock belonging to the defendant, alleged to have been falsely represented by the defendant to he worth a certain sum, it is erroneous to admit, upon the trial of the action, statements of a witness for the plaintiff as to conversations subsequently had by him in the month of April, 1894, with the officers and with the attorney of the bank in reference to the condition of its asse.ts upon the first day of that month.</p> <p>Where, however, there was abundant other unobjectionable evidence establishing the fraudulent representations, the court considered that the admission of the evidence objected to was not a ground for the reversal of the judgment.</p> <p>A letter written by the cashier of a bank to the Comptroller, containing, among other things, the expression, “ Our directors have been very seriously considering the advisability of taking a part or all of the surplus and use it in charging off other than A 1 assets,” while calculated to direct the attention of a prudent man to the fact that the hank had met with losses, does not necessarily indicate that its surplus was absolutely lost nor that the capital of the bank was impaired.</p>

<p>Appeal by the defendants, Carroll Dunham and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 6 th day of June, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme Court held iu and for the county of Westchester, and also from an order entered in said clerk’s office on the 13th day of June, 1896, denying the defendants’ motion for a new trial made upon the minutes.</p>

<p>Absence, on the trial, of a defendant — the reasons therefor may be shown.</p> <p>The non-attendance at the trial of an action of a defendant who, has personal knowledge of the facts, if any, which constitute his defense, and his conse- . quent failure to testify, may properly he considered by the jury as hearing . .upon the.strength of his case.</p> <p>In such a case it is competent for the defendant’s counsel to introduce testimony showing the circumstances which compel the defendant to be absent, and which may, perhaps, satisfactorily excuse that absence.</p>

<p>Appeal by the plaintiff, "Valentine Cornwell, who sues as well for himself as for the other heirs of John Cornwell, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 10th day of March, 1896, upon the decision of the court rendered after a trial at the Queens County Special Term dismissing the complaint upon the merits.</p>

<p>Election— the proper setting of the dials of the Myers automatic ballot machine is a ministerial duty — the act of the inspector cannot be reviewed by certiorari.</p> <p>The duty imposed by chapter 764 of the Laws of 1896, sections 8, 11, upon the chairman of a board of inspectors at an election, in a city which has adopted the Myers automatic ballot machine, to set “each dial in every labelled counter at nine,” is purely ministerial and administrative, and the action of the inspector in the premises is not reviewable by a writ of certiorari.</p>

<p>Appeal by the plaintiff, William H. Geogagn, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 22d day of June, 1896, npon a dismissal of the complaint directed by the court after a trial at a Trial Term of the Supreme Court held in and for the county of Westchester.</p>

<p>Appeal by the defendant, Nathan 0. Jessup, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 13th day of December, 1895, upon the decision of the ■ court rendered after a trial before the court without a jury at a Trial Term of the Supreme Court held in and for the county of Kings.</p>

<p> Contract of sale—am acceptance of the title, with an incumbrance not contemplated by the contract, is a consideration for an agreement to pay part of the purchase, price of the land to a third party. </p> <p>Frederick H. Ernst, who owned a lot and building, part of which was occupied as a saloon by one Luhersen, upon whose license and fixtures a brewing company held a mortgage, entered into negotiations with one Scholch for the sale of the entire property, which resulted in a contract for the sale of the property and the saloon and business for §6,500, of which §100 was to go to Luhersen, whose interest was sold subject to a lien of §1,000 in favor of the brewing company. When the sale was closed Luhersen had already been paid twenty-five dollars, and Ernst had in his possession a bill of sale executed by Luhersen (who was not present), ready for delivery to the purchaser, who said that he would pay the remaining §75 of the. §100 coming to Luhersen to the brewing company, his creditor, to which Ernst objected, and took the-money, giving to the purchaser a receipt which stated that the defendant had received from Luhersen the sum of seventy-five dollars, which was to be paid to the brewing company as part payment for goods sold by it to Luhersen.</p> <p>At this time the property of Luhersen was subject to liens.in favor of the brewing company in excess of §1,000, the amount which was contemplated by the original contract of sale, and Luhersen was, therefore, not only not in a position to carry out the contract, but was liable in damages to the purchaser in an amount in excess of the seventy-five dollars.</p> <p>In an action brought by the brewing company against Ernst to recover the amount so receipted for by him, Held, that the plaintiff was entitled to recover this sum from the defendant; That, as Luhersen had failed to perform the contract, the purchaser, Scholch, was in a position to refuse to complete his purchase or to make any new conditions under which he would take the property;</p> <p>That, as the property which the purchaser was to acquire was subject to liens held by the brewing company, it directly inured to the benefit of the purchaser that the seventy-five dollars should be paid to that company.</p> <p>That, as Brhst had received seventy-five dollars, to which neither he nor his tenant Luhersen was entitled under the original agreement, this constituted an ample consideration for Ernst’s promise that he would pay that sum to the brewing company.</p>

<p>Negligence — a longshoreman falling into an open hatchway in a darle place—in what a foreman is a co-employee and in what he represents the master—regulation required, of the master—§35,000 verdict for injury, excessive.</p> <p>In an action predicated upon the defendant’s negligence, it appeared that the plaintiff, a longshoreman, who was employed to assist in loading a three-decked ship which belonged to the defendant, about five o’clock in the afternoon was directed by his foreman to go to the forward hatch upon the lower deck, and in so doing fell through that hatchway—which was uncovered—into the hold and was injured. The hatchways above the lower deck were closed to protect the goods on board from rain; there were no lamps, and the ports of the lower deck did not afford sufficient light to show the hatchway, which was about ten feet square and unprotected by stanchions. There were lanterns furnished by the defendant, which could have been obtained, in a building on the dock near the ship, but it did not appear that the plaintiff, who had had little experience ns a longshoreman, knew of that fact, or of the location of the uncovered hatchway.</p> <p>Held, that the question whether the plaintiff was guilty of contributory negligence was one for the jury;</p> <p>That the defendant was not liable for the failure of the foreman, who was in a situation to see that it was dark forward, to direct the plaintiff to go ashore and get a lantern, as in this respect he was a co-employee of the plaintiff;</p> <p>That the foreman, however, represented the defendant in directing that the hatchways of the upper deck should be covered to keep off the rain — a matter which was not connected with the performance of the work and which did not subserve the purposes of the employees in their service;</p> <p>That it was a question for the jury, upon the evidence, whether, in view of the dark condition of the lower deck, it was not the duty of the defendant to have promulgated some rules or regulations to protect its employees, in some manner, from the danger of falling into the hatchway;</p> <p>That where a man aged twenty-eight years and earning about twelve dollars per week suffered, as a result of an accident, an amputation of one of his legs, a verdict for §85,000 was excessive and that §15,000 was a sufficient compensation.</p>

<p>Interest — a legatee preventing the payment of his legacy is not entitled to interest — taxes and repairs paid by a wrongful possessor of land, but not insurance premiums, allowed to him.</p> <p>Where the payment of interest is not the subject of an express contract, a promise to pay it will be implied on default in the payment of a specific sum which one is entitled to receive from another. In such case, interest is in the nature of damages for the default.</p> <p>Where a legatee is chargeable with knowledge that the only fund provided for the payment of his legacy is to arise from the sale of certain land, and he wrongfully enters into possession of such land and prevents a sale thereof, he is not entitled to interest upon his legacy during the time that he thus prevents a sale of the land.</p> <p>In an action bx'ought against one who has been in the wrongful possession of land for an accounting of the rents and px'ofits thereof, the wrongdoer is xxot entitled to be allowed for moneys paid for insurance, as sxxch expenditure is beneficial neither to the ownei'S of the land nor to the land itself.</p> <p>He is, however, entitled to be allowed for moneys paid for taxes and necessary repairs, as the owners are only entitled to their actual damages, which are the net rents and profits of the land.</p>

Appeal by the defendant, Clarence S. Watkins, from a judgment of the County Court of the county of Queens in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 30th day of June, 1896, upon the verdict of a jury, and also from an order bearing date the 16th day of June, 1896, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 20th day of April, 1896, upon the verdict of a jury for $27,500 rendered after a trial at a Trial Term of the Supreme Court held in and for the county of Kings, and also from an order bearing date the 16th day of April, 1896, and entered in said clerk’s office' denying the defendant’s motion for a new trial made upon the minutes.</p> <p>The action was brought to recover damages resulting from personal injuries caused by the alleged negligence of the defendant.</p>

<p>Life insurance—an application filled in by an insurance agent to suit himself— the insured not bound by the answers—facts known to the agent presumed to hmebeen communicated to the company.</p> <p>Where a life insurance agent visits a woman whom he knows to he unable to use her limbs, and, ’after asking her merely her age and the name of her proposed beneficiary (which questions are truthfully answered), fills out an application blank to suit himself, the company cannot subsequently defend an action brought upon the policy of insurance issued under such application by the beneficiary named therein, upon the ground that the insured was not in good health when the policy was issued, and that certain answers contained in the application blank were false, unless fraud be established upon the part' of the insured.</p> <p>An insurance company cannot avoid liability by proving facts which would defeat the policy, if it had full knowledge of those facts when it issued the policy and delivered it; and where an agent of the company is authorized to solicit applications for insurance, deliver policies or collect premiums, facts material to the risk coming to his knowledge are presumed to have been communicated to the company.</p>

<p>Negligence — a servant injured while passing through a narrow space near revolving cogs.</p> <p>In an action predicated upon the defendant’s negligence, it appeared that a machine for corrugating iron was composed of fluted iron rollers which matched together and were turned hy cog wheels attached to a shaft at either end of . the machine. These cog wheels revolved upwards and could not take hold of anything, unless it were introduced from below. The' plaintiff, who was employed in taking away the sheets of iron as they came from the rollers, was directed hy the engineer, who had stopped the rollers, hut not the cog wheels, to mean the machine, and was told to go around on the other side of the machine and that he would find there a piece of waste. The cog wheels were protected</p> <p>by a post, the distance between which and the wheels was about sixteen inches. The plaintifE went between the protecting post and the machine, when a species of glove which he wore caught in the cogs and his hand was drawn in and was injured.</p> <p>Held, that as the plaintiff knew that the wheels were in motion, the law charged him with notice that he would be injured if he placed his hand upon the cogs; That his act in passing through the narrow space, while the cogs were in motion, was clearly negligent.</p> <p>Semble, that the cog wheels were sufficiently guarded.</p>

<p>Motion by the petitioner to confirm the report of a referee appointed to take proof and report to the court • with his opinion upon an application to strike the name of B_"V"_ from the roll of attorneys and counselors of the Supreme Court, and to forbid his practicing in any of the courts of this State.</p>

<p>Slander—under a, general denial the defendant cannot prove that his funds have been misappropriated by the plaintiff—justification — malice.</p> <p>Where an action is brought to recover damages resulting from slander, and the answer interposed is a mere general denial, the plaintiff, who had occupied a position of trust in the employ of the defendant, and had had a right to draw-checks upon the defendant’s bank account, cannot be asked, upon cross-exami- . nation, whether he received the money upon a check which he himself had. drawn in this manner.</p> <p>Dpon such a state of the pleadings the fact, if it existed, that the plaintiff had misappropriated the money of the defendant, would not be admissible as evidence to prove a justification; and where there is no charge or claim that the plaintiff stole money from the defendant, and the fact, if it existed, was unknown to, and could not have influenced, the defendant, the evidence would not be admissible upon the question of malice.</p>

Appeal by the defendant, David Mannering, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 28th day of May, 1896, upon the decision of the court rendered after a trial at the Orange Special Term overruling the defendant’s demurrer to the complaint.

<p>Master and servant — the servant cannot buy on credit when the master has furnished him with funds— notice to one dealing with the servant — a demand of judgment will not be increased by amendment so as to defeat an offer of judgment— Code of Civil Procedure, § 738.</p> <p>Where a householder contracts with a purveyor for the furnishing and cooking of the food necessary for his family, and pays the purveyor, in regular installments, in full, according to the contract, the latter has no right to pledge the credit of his master, the householder; nor can a grocer, who furnishes the supplies, in alleged ignorance of the contract, recover of the householder a balance due to him from the purveyor.</p> <p>The payment of cash by the purveyor, upon the first delivery of supplies, creates no presumption that he is authorized to purchase on credit; and the fact that the grocer receives the checks of the purveyor and renders the bills and receipts to him constitutes actual notice that the grocer is not dealing with the master. Notice of this character is sufficient to put the grocer on inquiry and render him chargeable with the information which he would have received had he instituted the inquiry.</p> <p>An agent cannot buy upon credit and charge the principal if the latter has furnished the agent with funds with which to pay; and the only exception to this rule is where the principal has done some act from which it can be inferred that be authorized the credit.</p> <p>Where a defendant has made an offer of judgment, and the court subsequently allows the plaintiff to increase his demand for judgment in respect to interest merely, the court should make it a condition of the amendment that the offer may be changed in an amount sufficient to meet the additional amount of interest demanded, or make the excess of interest, in some way, not to defeat the offer.</p>

<p>Appeal by the plaintiffs, William F. Lawrence and another, from so much of a judgment of the Supreme Court in favor of the defendant Henry C. Fischer, entered in the office of the clerk of the county of Westchester on the 19th day of May, 1896, upon the decision of the court, rendered after a trial at the Westchester Special Term, as adjudges that the defendants, The Board of Education in the City of Yonkers, pay to Henry C. Fischer, or his attorney, the sum of $1,516.</p> <p>This action, was brought to obtain an adjudication:</p> <p>“ 1st. That tiie plaintiffs have a valid claim and lien upon the money due, and to become due, to said John C. Campbell, Jr., under said contract between him and the defendant, the Board of Education, for $496.55, and interest thereon from August 2, 1895, prior to all other liens, claims, interests and demands thereon ; and that the said Board of Education, defendant, pay over to the plaintiffs the said sum and interest, with the costs of this action.</p> <p>“2nd. That the plaintiffs recover from the defendant John C. Campbell, Jr.,.and have personal judgment against him for said sum of $496.55, and interest from August 2, 1895, with the costs of this action.”</p>

Appeal by the defendant, Charles A. Gargan, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 13th day of August, 1896, denying the defendant’s motion to set aside an order to examine him in supplementary proceedings and an order appointing a receiver of his property on the ground that the judgment on which the proceedings were founded was recovered more than ten years before the…

<p>Appeal "by the defendant, The Trustees of the New York and Brooklyn Bridge, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 21st day of February, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme Court held in and for the county of Kings, and also from an order entered in said clerk’s office on the 27th day of February, 1896, denying the «defendant’s motion for a new trial made upon the minutes.</p> <p>The action was brought to recover damages for personal injuries •caused by the alleged negligence of the defendant.</p>

<p>•Appeal by the defendant, The United States Industrial Insurance Company; from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 19th day of March, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme Court held in and for the county of Kings, and also from an order bearing date the 18th day of March, 1896, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant-, The Long Island Eailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 23d day of April, 1895, upon the verdict of a jury rendered after a trial at the Queens County Circuit, and also from an order entered in said clerk’s office on the 1st day of May, 1895, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Pontraet for the sale of land—a notice of lis pendens alone, without proof that the title was in doubt.became of the claim,, does not justify its rejection—forfeiture of the amount paid.</p> <p>A purchaser is not entitled to reject a title offered to him, under an executorycontract for the sale of real estate, merely because the record shows the existence of a notice of lis pendens ; he must go farther and show that doubt, as to the validity of the title, is created by the character of the claim made in the suit in which the lis pendens was filed. If he refuses, without good ground for so doing, to take the title he forfeits what he has already paid on the contract.</p>

<p>Appeal by the defendants, Hiram T. Ostrander and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Orange on the 27th day of August, 1895, upon the decision of the court rendered after a trial at the Orange Special Term.</p> <p>The judgment, among other things, perpetually enjoined the appellant and others from talcing any proceedings to enforce payment of claims made by them under chapter 664 of the Laws of 1892.'</p>

<p>Appeal by the defendants, Sophia A. Bennet and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 17th day of March, 1896, upon the report of a referee.</p>

<p>Restrictions upon the use of land — how far other land of the same grantor is bound in like manner — estoppel — who is a purchaser in good faith for a valuable consideration.</p> <p>Where the owner of a tract of land contracts with the purchaser of successive parcels as to the manner of the occupation and improvement of such parcels he thereby afEects the remainder of the land with an equity which requires that it also be occupied and improved in conformity with the general plan, and this equity is binding upon a subsequent purchaser of the remaining parcel, who has notice of the prior agreement, though his legal title be, in terms, unrestricted.</p> <p>This rule rests upon the doctrine of estoppel, that where a party, by his declaration or conduct, has induced another person to act in a particular manner, he will not afterwards be permitted to deny the truth of the admission if the consequence would be to work an injury to such other person or to some one claiming under him. A subsequent grantee, of the common grantor, who desires to avoid the effect of this rule by claiming that she is a purchaser for value without notice, fails to do so where she rests her claim solely upon the presumption arising from the recital in her deed of the receipt by the common grantor “ of one dollar and other good and valuable considerations.”</p> <p>The rule in the state of New York, that the recital in a deed of the receipt of a consideration is prima facie evidence of the payment of that consideration, even as against strangers, is an exception to the general principle of law in this respect, and should be strictly construed; and, as thus construed, the consideration above mentioned is not necessarily the recital of more than a nominal consideration.</p>

Appeal by the defendant, The Atlantic Avenue Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the llth day of June, 1895, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the defendant, John B. Peirano, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 16tli day of June, 1894, upon the verdict of a jury rendered after a trial at the Westchester Circuit, and also from an order entered in said clerk’s office on the 18th day of June, 1894, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Stephen A. Dutton, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 30tli day of December, 1895, upon the decision of the court rendered after a trial at the Kings County Special Term dismissing the complaint.

Appeal by the defendant, Stephanie Morel, as executrix, etc., of .Emile B. Morel, deceased, from a judgment of the Supreme Court in favor of the plaintiff in each of the first and second above-entitled actions, entered in the office of the clerk of the county of Westchester on the 27th day of March, 1896, upon the decision of the court rendered after a trial at the Westchester Special Term; also an appeal by David Verplanck, as executor, etc., of J. Warren Tompkins,…

Appeal by the defendants, Amos 0. Hall and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 28th day of April, 1896, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the plaintiff, James T. Burdick, from a judgment of the County Court of the county of Kings in favor of the defendant, entered in the office of the clerk of the county of Kings on the 13th day of June, 1896, upon the dismissal of the complaint upon the merits, directed by the court after a trial at the Kings County Court before the court without a jury.

Appeal by Priscilla Rogers, as administratrix, etc., of Francis Rogers, deceased, upon the law and the facts, from a decree of the Surrogate’s Court of the county of Kings, entered in the office of said Surrogate’s Court on the 27th day of January, 1896, directing her to pay a certain sum of money to Priscilla Wright, and settling her accounts as administratrix of said Francis Rogers, deceased.

Appeal by the plaintiffs, Charles D. Archer and another, as executors, etc., of Michael A. Archer, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Rockland on the 6th day of May, 1896, upon the decision of the court rendered after a trial at the Westchester Special Term dismissing the complaint upon the merits.

Appeal by the defendant, Louis B. Couch, from a judgment of the County Court of Bockland county in favor of the plaintiff, entered in the office of the clerk of the county of Bockland on the 9th day of March, 1896, upon the decision of the court reversing a judgment rendered by a justice of the peace on an appeal therefrom which was heard upon a return containing the evidence taken before the justice.

Appeal by the plaintiff, Frederick J. O’Brien, and the defendants, Henry L. O’Brien and others, from a judgment of the Supreme Court in favor of the defendant, The General Synod of the Reformed Church in America, entered in the office of the clerk of the county of Kings on the 27th day of May, 1896, upon the report of a referee.

<p>Motion by the defendants, Seth L. Keeney and others, for a new trial on a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the verdict of a jury in favor of the plaintiff, rendered after a trial at a Trial Term of the Supreme Court held in and for the county of Kings on the 2d day of June, 1896.</p>

<p>Order affirmed, with ten dollars costs and disbursements.</p>

<p>Judgment annulled, with fifty dollars costs and disbursements and the relator reinstated. —</p>

<p>Proceedings affirmed and writ dismissed.</p>

<p>Motion granted in the respects stated in opinion.</p>

<p>Judgment affirmed, with costs.</p>

<p>Judgment and order affirmed, with costs</p>

<p>Judgment and order unanimously affirmed, with costs.</p>

<p>Judgment and order affirmed, with costs.</p>