Volume 10 — New York Miscellaneous Reports

<p>Plaintiff attempted to cross a street on which defendant’s road was operated at a time when he saw a car abe at sixty feet distant, but before he could cross the track, a distance of about twelve feet, he was struck and injured by the car. The driver of the car testified that when he saw the plaintiff, about thirty-eight feet distant, he called out to him and applied the brakes, but on account of the steep grade and the brakes not taking hold he was unable to stop the car until it reached the plaintiff. Held, that it could not be said, as a matter of law, that plaintiff was guilty of contributory negligence in assuming that he could walk that distance before the car reached him, nor that the driver did all that a prudent man should have done; but that such questions were for the jury to determine.</p>

Action for personal injuries sustained by reason of the collision of a trolley car operated by defendant with the cart in which the plaintiff was riding.

¡judgment in favor of plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial. Action to recover for a trespass involving an assault on the plaintiff, the unlawful locking up of a grocery store belonging to him and the destruction of his business.

<p>Appeal from judgment in favor of the plaintiff, entered on the verdict of a-jury.</p>

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

<p>Appeal from judgment in favor of the plaintiff, entered upon a verdict for $5,000, and from order denying motion for a new trial.</p>

judgment in favor of the plaintiff, entered upon a verdict for $1,000, and from an order denying a motion for a new trial.

<p>A complaint in an action for the return of securities given to secure a loan after tender of the amount due, which alleges that “ there is due the defendant, on account of said loan, not more than ” a specified sum, “which sum plaintiff tendered defendant” on a date named, “and demanded a return of said certificates and notes,” does not state a cause of action, as it fails to show how much was due at the date of the tender, the allegation as to the amount due referring to the date of the verification of the complaint.</p>

This action was brought to recover damages for personal injuries sustained by the infant plaintiff by reason of one of the windows of the defendant’s car, in which she was traveling in charge of her mother, falling upon and crushing her fingers. ■ After service of the summons and complaint a motion was made for leave to sue as a poor person, based upon the pleadings and a petition which stated that the plaintiff had a cause of action against the defendant “ as will more…

<p>Plaintiff, a bricklayer in the employ of defendants, was directed by the foreman over the mason work to go to work on a pier which was near a derrick, and shortly after was injured by the fall of the derrick, caused by the absence of a check rope, which a fellow-servant who had charge of the derrick forgot to attach to it. Held, that defendants were not responsible for the failure of the foreman to see that the rope was attached to the derrick, and that they were not liable for the injuries sustained by the plaintiff.</p>

<p>Motion for bill of particulars or to make answer more definite and certain.</p>

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

<p>In an action for services rendered in appraising diamonds, the plaintiff was permitted to answer a question as to the usual compensation allowed to appraisers according to the custom of jewelers and the diamond business. Held, that in the absence of proof of a general, well-established and continued usage or custom in his business to charge the fee claimed by him, the reception of his answer was erroneous.</p>

<p>Appeal from order granting leave to amend the complaint.</p>

<p>The mere fact that the assured, under a policy of marine insurance, agree to carry to a point outside the limits of the policy and contrary thereto will not nullify the policy, although freight in excess of a privilege therein is accepted, provided they elect not to carry out such contract before the commencement of the trip.</p> <p>Plaintiffs held a policy of marine insurance which confined their freighting business to certain rivers and canals. Wishing to carry a cargo to Baltimore, they obtained a privilege to do so, which contained a limitation as to the amount to be carried. Upon learning of such limitation they stated that unless the limitation was increased they would abandon the trip; and, upon a refusal, said they would wait until Monday to decide whether to take the amount stated or go uninsured. Before that day the vessel was destroyed. Held, that there was no acceptance of the privilege, and that the policy was not avoided.</p>

<p>To render a landlord liable for injuries resulting from a dangerous condition of the premises, it must be shown that he had actual notice of such condition, or that it had existed for a reasonable length of time.</p>

<p>Under an allegation of a surrender and acceptance of leased premises in a certain month, proof of surrender and acceptance in a previous month is inadmissible.</p>

<p>A provision in an agreement to indemnify against any judgment that might be procured in a pending action, that certain attorneys should be permitted to defend said action at all times during its existence, is a condition precedent to liability, and a refusal to comply with it releases the indemnitors.</p>

<p>Defendant was indorser on certain notes given by Ms wife, wMch were payable, to the order of the plaintiff. It was alleged and proved that the notes were given for goods sold to defendant’s wife, which plaintiff refused to deliver until defendant indorsed the notes. Held, sufficient to show that the purpose of the indorsement was to give credit to the maker, and that as to the plaintiff the defendant was liable as a first indorser.</p> <p>The fact that the plaintiff may have transferred the subject of the action to another is immaterial where it was returned and Ms former title reinstated before suit was brought, and in such case it is not necessary to allege such retransfer in the complaint.</p>

Appeal by the plaintiff from an order made at Special Term, dismissing the action and directing judgment on the defendant’s counterclaim.

<p>In an action for rent claimed to be due under a lease to the defendant, who admits the making of the lease, but claims to have sold his business to a corporation which took possession, where there is no proof of a surrender of the original lease, and it appears that the corporation refused to make a new one, a direction of a verdict for the plaintiff is proper.</p>

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

<p>Appeal from a judgment on the verdict of a jury in favor of the plaintiff and against the defendant.</p>

<p>Defendant sold certain goods to the plaintiff and sent them by an express company, but plaintiff refused to receive them. Defendant thereafter recovered judgment for the purchase price, which was paid. Plaintiff then inquired as to the whereabouts of the goods of defendant’s manager, who refused to give the information. Held, that upon payment of the judgment title to the goods was vested in the plaintiff and he was entitled to possession thereof, and that defendant was under an obligation either to deliver them or tell him where they were.</p>

<p>After the delivery to it of goods for storage this defendant surrendered possession of the warehouse and goods to one M. In an action to recover for injuries to the goods, held, that the defendant and M. were not jointly but severally liable, each being responsible for any injury occurring while in possession, and that it appearing that the injury occurred while M. was in possession a verdict against him alone was not irregular. The trial court has no power to dismiss the complaint as to one of the defendants seven days after the trial is concluded.</p>

<p>Appeal from a judgment entered on a verdict of a jury in favor of the plaintiff and against the defendant Morgan.</p> <p>The facts appear in the preceding case of Ka/wfman v. Peoples Gold Storage (& Warehouse Go.</p>

The petitioner was nominated for county treasurer of Richmond county by the county convention of that faction of the Democrats of Richmond county calling itself the Democratic party in Richmond county. The convention indorsed the nominees of the Democratic state convention. This faction has heretofore supported the state Democratic ticket, but refused to support nominations by the regular local organization.

<p>Chapter 598, Laws of 1894, so far as it attempts to ratify and confirm the proceedings taken by the defendant in substantial compliance with the previsions of chapter 361, Laws of 1863, as amended, is in contravention of section 16 of article 3 of the Constitution, and, therefore, void,</p>

. Demueeer by the defendant above named to the complaint, on the grounds that it does not state facts sufficient to constitute a cause of action; that the court has no jurisdiction, and that two causes of action are improperly united.

<p>A suit in equity will lie in a proper case to prevent a threatened cloud upon title.</p> <p>Where the court is of opinion that the case, even upon a single question, requires a more careful consideration than can be given on the hearing of a motion, a preliminary injunction should be granted.</p> <p>Bights acquired under the act of 1880 by a tender of the first installment of arrears are forfeited by a failure to pay subsequent taxes anti assessments upon the land.</p>

Appeal by relator from an order vacating a writ of habeas corpus, sued out by him to procure his release from imprisonment under a judgment of the Police Court of the city of Buffalo convicting him of violating section 501 of the city charter.

Motion by the defendant for a new trial upon the judge’s minutes after a verdict for the plaintiff at the Circuit, and also a motion by the defendant for a new trial upon affidavits.

<p>Motion to strike an assessment of the relator’s farm from the assessment roll.</p>

<p>Appeal from an order allowing the plaintiff to amend the complaint.</p>

<p>While plaintiff was driving a single horse and wagon on the right-hand side of Eighth avenue, near the curb, and another wagon was being driven alongside, the horse of the latter conveyance was violently struck by defendant’s team, which was being driven at a gallop in the same direction and endeavored to cross in front of the others, and was thereby forced against plaintiff’s horse and upset his wagon, injuring the plaintiff. Held, that the defendant was the primary cause of the injury and was guilty of negligence; that plaintiff was free from negligence, and that a nonsuit was error.</p>

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

<p>Appeal by plaintiff from judgment of nonsuit.</p>

<p>Where correct answers are given to an insurance agent to questions contained in the application, but, through fraud or mistake, the agent inserts incorrect and untrue answers, the insurer, and not the insured, is liable for their falsity, and a defense of breach of warranty is not sustainable in an action on the policy.</p>

<p>In an action brought by an assignee the defendant can only offset or counterclaim such claims against the assignor as were due or had matured at the time of the assignment of the claim in suit, and which were acquired by the defendant in good faith before he obtained knowledge or notice of the assignment.</p> <p>Where claims held by defendant by assignment are set up as counterclaims in such an action, the plaintiff has a right to examine the defendant as to the time, date and manner of the assignment to him, to show actual or constructive notice to defendant of the assignment to plaintiff and as bearing on the "question of defendant’s good faith, and he is entitled to present and maintain any defense to the claims so set up which his assignor might have had at the time of such assignment.</p>

<p>In an action for goods sold and delivered the defendant claimed that he informed plaintiff that he had a partner and that he was only jointly Hable with his partner. Plaintiff produced receipts for the goods signed by the defendant and admitted a part payment thereon. Held, that such receipts were proof that the goods were sold and deHvered to the defendant, and that it was not error for the court to instruct the jury to find for the plaintiff for the balance, unless they should find that sutih balance had been paid. ,</p>

<p>Plaintiffs, who were tenants of the defendant, abandoned the use of the premises and delivered the keys to him, as they claim, for the purpose of showing the premises to prospective tenants or purchasers, and the defendant then had the premises put in repair. Held, that there was no forcible entry or detainer, but that, at most, defendant exceeded his license; that there was no injury to. the plaintiffs, and that the trespass being of a trifling character, the jury had a right to fix the damages at a nominal sum.</p>

<p>Where an order setting aside a verdict and granting a new trial expresses the decision as rendered, a refusal of a motion for resettlement is proper. If there was an error in granting the order or in failing to impose proper terms, it can he reviewed on appeal from the original order.</p>

<p>Appeal from order made at Special Term.</p>

<p>Where a case involves several theories, some dependent on the finding of certain facts, and some on the construction and legal effect of writings and transactions which may bear different interpretations, it is error to dismiss the complaint.</p>

<p>Appeal by the defendant from a judgment entered on verdict in favor of the plaintiff.</p>

<p>Appeal from interlocutory judgment overruling the demurrer interposed by the defendant to the plaintiff’s complaint.</p>

<p>In an action for work, labor and services as captain and watchman on a barge, the answer admitted a part of the amount claimed. Before the conclusion of the plaintiffs evidence the court stated that he would not allow the case to go to the jury, and dismissed the complaint. Held, error.</p>

<p>The provision of the charter of the city of Lockport permitting voters of the town of Lockport to vote at places in the city, to be designated by the supervisor and mayor, is not unconstitutional.</p> <p>An act to incorporate a city is not rendered invalid under article 3, section 16 of the Constitution, by the fact that it contains provisions adjusting the rights and interests of the people of the territory from which the city is taken, as that is a subject that may reasonably be embraced in or be connected with the subject of incorporation.</p> <p>The prohibition in the Constitution against the passage of a local bill designating the places of voting has no application to a statute passed prior to the adoption of such provision.</p> <p>The section of the charter of the city of Lockport in relation to voting was not repealed by the General Election Law of 1893.</p> <p>Where the people and the officers whose duty it is to execute a law have, for a long series of years, given a practical construction to it upholding its validity, this fact may be considered in determining the question of its constitutionality.</p>

Motion by the defendant for a stay of proceedings, pending an appeal to the Court of Appeals from a final order upon habeas corpus discharging the relator.

<p>Demurrer to complaint.</p>

<p>Action for construction of the will of Daniel McCabe, deceased.</p>

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

<p>It is the duty of a motorman to avoid coming into collision with vehicles traversing the streets crossing his track.</p> <p>Whether a person was negligent in attempting to cross a street-car track when an approaching car was some ninety or one hundred feet away, and whether the motorman was negligent in failing to slow down the car upon seeing him at that distance, are questions for the jury.</p>

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

<p>Equity will restrain the use of a name which has become, in connection with other indicia, the chief means in commerce of distinguishing a proprietary article of merchandise from others of the same class, even where that name has been acquired through the instrumentalities of the laws for the incorporation of business companies, if it was done with the fraudulent intent and purpose of stealing the trade of another. Plaintiff is the owner and manufacturer of a soap known to the public as the “Charles S. Higgins’ German Laundry Soap,” “Higgins’ German Laundry Soap ” and “Higgins’ Laundry Soap.” The defendant Donovan subsequently organized a company, to which he procured one Walter Higgins to give his name, and thereafter manufactured and permitted the Amalga Soap Co. to manufacture soap under the name of “Walter Higgins’ Turkish Laundry Soap,” put up in packages similar in size and shape to those of the plaintiff, and bearing the same devices, except as to the name and the substitution of a picture of a Turk smoking a pipe for that of a colored woman at the washtub. Held, that there was such an imitation of plaintiff’s soap as was calculated and designed to deceive the public, and that an injunction restraining the use of wrappers similar to those of the plaintiff and the use of the word “ Higgins ” in designating the soap made by defendants was properly granted.</p>

The assessed value of petitioner’s lot is $120. The assessment as first laid and confirmed by the common council was $103, but subsequently, as the contract for the work was let at a sum in excess of the estimated cost, said- assessment was increased to $175.

<p>The premises covered by a mortgage were sold under foreclosure, and conveyed by the sheriff to the holder of the mortgage, who thereafter conveyed the same. The owner of a portion of the premises, which had been conveyed to him intermediate the execution and the foreclosure, was not made a party thereto, and subsequently conveyed. Plaintiff, who claims under the latter conveyance, contracted to sell the samé to defendant. Plaintiff has owned the property only one year, and has no knowledge or information as to who had possession of the premises prior to the date of his deed, and it did not appear whether the premises were improved or inclosed. Held, that these facts rendered the title unmarketable, and that the defendant should not be compelled to take the same.</p>

Action to recover damages for an injury sustained by the plaintiff while descending the balcony stairs in defendant’s theatre after a matinee performance. It was claimed by the plaintiff that the injury was .caused by reason of her heel catching in the rubber covering of the sixth step, which had become loosened.

<p>A verdict against a railroad company will not be set aside as against the weight of evidence, although the number of witnesses on the part of the defendant preponderated, where it appears that several of such witnesses were employees of the defendant, and the testimony is not free from contradictions and discrepancies in important particulars.</p> <p>In an action by a father for loss of services of a minor daughter and expenses necessarily incurred by reason of personal injuries sustained by her through defendant’s negligence, where the injury necessitated the amputation of the child’s left thumb and plaintiff was obliged to pay §100 for medical treatment, a verdict for §2,000 is not excessive.</p>

Action to recover damages for injuries sustained by falling over a flagstone which the defendant had removed and placed over another on the sidewalk while connecting its gas main with adjoining premises.

<p>Plaintiffs daughter, a child six and a half years old, while crossing Third avenue on a bright afternoon, stumbled and fell on the defendant’s track and was run over by one of its trolley cars, in such manner that amputation of both limbs was rendered necessary. The motorman testified that he saw her from the time she left the sidewalk, twenty-three feet from the track. Held, that proof of these facts made out a case for the jury; that it was the duty of the motorman, on seeing the child approaching the track, to decrease the speed and get the car under control, and not to wait to do so until she had fallen on the track.</p> <p>In an action for personal injuries resulting from being run over by a trolley car, it is competent and material to show by a witness, who is a motorman, within what distance a car could be stopped at the place of the accident.</p> <p>A refusal to charge, in such a case, that if the evidence leaves the jury in doubt as to whether the injury was caused by defendant’s negligence, the verdict must be for the defendant, is proper, as the plaintiff in a civil action is not required to prove his case beyond a reasonable doubt; that rule being applicable only to criminal cases.</p> <p>A request to charge that, if the jury believed the testimony of a certain witness, they should render a verdict for defendant, is improper, as it would preclude the jury from construing the witness’ testimony and determining what particular facts it established.</p> <p>Proof that a child was six and a half years old and had been accustomed to go to school unattended for several months, and had been allowed to play on the street in which trolley cars were operated, is sufficient to make it a question for the jury as to whether the child was or was not sui juris.</p>

<p>Appeal from the judgment of a justice of the peace, rendered upon a default.</p>

<p>Under a contract providing that the contract price shall be paid “ in payments as the work progresses,” and that on all payments fifteen per cent of the amount due shall be retained to insure the faithful performance of the agreement, “and that no payment shall be made except on the written certificate of the architect, stating that he considers the payment properly due,” the value of the work performed is not the sole guide of the architect in determining the amount due, but he is obliged to consider the work as an entirety, and where it is apparent that the expense of completing the work from that point would be substantially the full amount of the unuaid contract price, he is justified in refusing a certificate.</p> <p>As the statute does not in terms require service of the original notice of lien, service of a copy is sufficient.</p> <p>"Where a subcontractor enters into a contract for the purchase of brick after a portion has been delivered, and, as a part of the transaction, .gives to the materialman an order on the contractor for the purchase price, which order is accepted by the contractor, such order operates as an equitable assignment of the moneys due to the subcontractor to the extent of the brick delivered before any liens are filed.</p> <p>The holder of such an order is entitled to payment from the fund in preference to liens filed subsequent thereto, although prior in time to the lien filed by him, as such liens would attach only to the amount which the subcontractor was entitled to receive at the respective dates of their filing, and after the execution and delivery of the order such amount is diminished by the amount of the order.</p>

<p>Where an issue of the entire stock of a corporation in exchange for property, the value of, which is insignificant as compared with the par value of the stock, is assented to by all the stockholders when the same is consummated, neither the corporation, nor a subsequent purchaser of stock, although he took the same in good faith and without notice, can maintain an action to compel the return of the shares issued in excess of the value of the property and to have determined who are the lawful holders of the stock of the corporation.</p>

<p>A will gave to the testator’s two daughters an equal interest in a house and lot, and provided, “ If I sell the same, the avails to be theirs by equal division, in the following way: The income to be theirs until marriage or decease. When one shall marry or die, the survivor to have the whole income. When both are married or deceased, then the principal to be divided equally among my grandchildren then living. If I do not sell, I authorize my executors to sell at once if they deem best.” Held, that the daughters took an estate in the premises limited upon their lives and upon their remaining unmarried, which, upon the marriage or death of both was to vest in fee in the grandchildren then in being, and the executors had a discretionary power of sale, upon the execution of which the proceeds of sale would take the place of the house and be distributed among the grandchildren at the termination of the life estate.</p>

<p>Where the co-executors of a widow have no personal interest in her execution of a release of dower, were not acting as trustees for her, were not lawyers, and had no greater knowledge of her rights than she had, there is no relation of trust and confidence existing between them which will raise a presumption that the release was fraudulent. Where a claim of dower is inconsistent with the provisions of the will, although there is no provision that the legacy to the wife is intended to he in lieu of dower, she is put to her election.</p> <p>A testator who owned two pieces of property devised one of them to his wife and the other to his twq daughters for their lives, with remainder to his grandchildren, subject to a power of sale in his executors, one of whom was his widow. At the request of one of her co-executors the widow executed a release of dower in the property given to the daughters. It did not appear that any false statements were made to her, and the instrument was executed at the office of an .attorney. Held, that under these circumstances fraud in procuring such release was not shown, and that there was a sufficient consideration therefor.</p>

<p>Where a surviving partner fails to close up the business at once, pay debts and divide the balance, he is liable to account to the representatives of his deceased, partner for the profits made from the copartnership property.</p> <p>Upon the death of one of the members of a partnership his wife, who was an infant, was appointed administratrix of his estate and, for a valuable consideration, executed a bill of sale of the decedent’s interest in the partnership to the surviving partner. The appointment of the wife was subsequently vacated on the ground of infancy and the plaintiff appointed in her place. Held, that the bill of sale was a nullity so far as the estate was concerned; that the surviving partner could be required to account for profits made with the copartnership property to the time of the accounting, but was entitled to be credited with the amount paid to the wife, not exceeding her interest in her husband’s estate, and that the wife was a necessary party to the action for the purpose of determining such interest. “</p>

<p>Appeal from judgment of a justice of the peace in favor of the defendants, rendered upon a verdict of no cause of action.</p>

<p>Application for order directing the state board of pharmacy to issue a license to the applicant.</p>

<p>Motion to compel the purchaser of real estate at receiver’s sale to complete his purchase.</p>

<p>Application to open default taken in Municipal Court of Buffalo.</p>

<p>Motion by defendant to set aside verdict in favor of the plaintiff on the ground of misconduct of the jury.</p>

<p>Motion by the plaintiff to set aside an order for his examination before trial.</p>

Motioh by the plaintiff to set aside the verdict in favor of the defendant on the ground of misconduct and bias of jurors.

<p>Action to recover on a promissory note.</p> <p>Tried at the Chautauqua Circuit and verdict directed for the plaintiff.</p> <p>Motion by defendant for a new trial heard upon the judge’s minutes.</p>

<p>Appeal from judgment of the Municipal Court of Buffalo in favor of the plaintiff.</p>

<p>Appeal from judgment of the Municipal Court of Buffalo in favor of the plaintiffs.</p>

This is an appeal by the defendant from a judgment of the Municipal Court of Buffalo for $200, awarded the plaintiffs as a penalty under chapter 385 of the Laws of 1889, and chapter 219 of the Laws of 1893.

This is an appeal by the defendant from a judgment of the Municipal Court of Buffalo for the sum of seventy-six dollars and eight cents, damages and costs.

<p>By the terms of a will the vesting of the interests of testator’s two children in his real estate depended on the exercise of a power of sale granted by said will, whereby, provided a cestui que trust of the real estate consented to its sale, and she and the children made a satisfactory arrangement for an annuity to her, the trustee was authorized to sell the real estate held in trust and distribute the proceeds. A parcel of the land was condemned for the purposes of a public bridge, and thereafter all the parties in interest joined in a deed thereof to the bridge trustees. Held, that it was the intention of all parties to treat the proceeds as an enforced substitute for the real estate, and that the amount of the award, being the sum also named as the consideration of the deed, constituted, in law, real estate subject to the original trust.</p> <p>A parcel of the original trust real estate was, with the consent of all parties, conveyed by the trustee in exchange for another piece of realty, the trustee additionally paying for the latter a portion of the award received in the condemnation proceedings above referred to. Held, that the property so acquired was substituted for the original real estate and subject to the original trust.</p> <p>A voluntary accounting in Surrogate’s Court terminates with the executor’s death.</p> <p>The Statute of Limitations does not run against a trustee so long as the property remains in his hands unaccounted for.</p>

<p>Motion "by the plaintiff to vacate an order for her examinar tion before trial.</p>

<p>Appeal from a judgment entered upon the dismissal of a complaint at the close of plaintiff’s case.</p>

<p>Appeal from judgment in favor of the plaintiff, entered upon a verdict directed by the court.</p>

<p>Appeal from an order made at Special Term granting new trial on defendant’s motion upon payment of costs to date.</p>

<p>After an offer of judgment for part of the claim in suit had been made and accepted, the plaintiff procured an order permitting him to enter judgment for the amount of such offer and continue the action for the recovery of the balance. Held, that the court had no right to grant the order of severance, and that entry of judgment on the offer was a bar to a recovery of the balance of the claim.</p>

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

<p>Action to procure a decree that all the residuary estate of Daniel B. Fayerweather, deceased, devised and bequeathed to defendants Ritch, Bulkeley and Yaughan are held by them in trust for plaintiffs and certain other institutions named in his will.</p>

<p>The defendants other than appellant kept one of their carts, when not in use, stored upon the sidewalk in front of their place of business, and another in the street about three feet from it and near the car track. While plaintiff’s intestate, in charge of an older brother, was playing near the first cart, appellant’s driver, in trying to pass a street car, ran into the other cart and drove it against the one on the sidewalk, wedging the child between it and a tree, and causing injuries from which he died." Held, that appellant’s driver was guilty of negligence, and that such negligence was the proximate cause of the injury.</p>

<p>An action upon a bond given to discharge a mechanic’s lien cannot be . maintained until a judgment against the property has been recovered, and the complaint in such an action must allege the recovery of such judgment.</p>

<p>The court can take judicial notice of the fact that a trolley car can be stopped, emergency or no emergency,.in a shorter space than 100 feet. A motorman when approaching a cross street should have his car under control to avoid injury to foot passengers and vehicles using such street. It is not contributory negligence, as matter of law, for a child to run across the street car track when he can cross in safety if the approaching car is operated at a fair rate of speed.</p> <p>Plaintiffs intestate, a boy seven years old, attempted to run across defendant’s tracks at the intersection of two streets, and had almost cleared the " east rail when struck by a car, which ran 102 feet further before it could be stopped. The road in that vicinity had only been operated by electricity for three days. Held, that these facts showed that the car was run at an unsafe rate of speed, and that a dismissal of the complaint was error.</p>

<p>Appeal from judgment of nonsuit.</p>

<p>Plaintiff, when an infant, was supported by her brother, her"parents having died. She owned an interest in real estate in common with her brother, which, at the end of three years, was sold in proceedings brought for that purpose to provide for her support, and "the proceeds were paid over to her brother as her guardian. Some nine years later the brother died and action was brought against his sureties to recover the sum of money so received by him. Held, that in determining what sum should be allowed to the guardian for support of the plaintiff the court should have taken into consideration the amount expended by him for her support prior to his appointment as guardian.</p>

<p>Where a lease provides for payment of rent monthly in advance, allega- ■ tions in the complaint in an action for such rent of performance by the landlord of the covenants of the lease on his part are unnecessary and need not be proved, and, therefore, do not entitle him to the affirmative on the trial.</p>

<p>Where a constable has seized goods belonging to another than the judgment debtor, an action lies instanter to restrain his proceedings, particularly where the levy is excessive and the officer is not financially responsible.</p> <p>An injunction in such a case pendente lite is proper.</p>

Action to recover the amount of a judgment obtained against the Syracuse Bamboo Furniture Company for goods sold and delivered to it by the plaintiff, upon the ground that the defendants, directors of such corporation, failed to make and file a report, as required by chapter 688 of the Laws of 1892, and were in default when the goods were so sold and delivered.

<p>Action for construction of will.</p>

<p>The right of a person to use his own name in his business does not authorize him to give his name to a corporation with a view to make it similar to that employed by other persons in the same business, to their injury er that of the public.</p>

<p>Appeal from judgment of the Municipal Court of Buffalo in favor of plaintiff.</p>

<p>Actions to recover for services as surveyor.</p>

Action to recover damages for injuries sustained by the ■plaintiff, who was in the employ of the defendant, the New ■Jersey Steamboat Co., by the explosion of a steel cylinder containing hydrogen gas. The explosion occurred at the .People’s Line warehouse, in the city of Albany, December 6, 1893.

Motion to enforce an attorney’s lien. In this action a settlement was made between the parties, by which the payment of $17,500 was guaranteed to the plaintiffs, besides a certain percentage on the gross receipts of defendant Russell’s performances, which might increase the amount of the settlement to $28,000.

<p>Motion to continue an in junction pendente lite.</p>

<p>Action for an accounting.</p>

Action for the restoration of a bond and mortgage given by the plaintiff, and the recovery of moneys advanced by her to defendant. •

TAe decedent died intestate, leaving two sons, Archibald A. SMllman and James Skillman, his only next of kin, and mo widow. Archibald was appointed administrator. On the .•accounting it appeared that the share of each next of kin was :$9,233.42, and the question arose as to whether they were ¡subject to taxation under the law fixing a tax upon transfers •of property.

The property and franchises of the Long Island Water Supply Company were taken by the city of Brooklyn in condemnation proceedings authorized by special act of the legislature. The commissioners of appraisal made an award to-said company of $570,000, which upon appeal was finally confirmed by the Court of Appeals (143 N. Y. 596).

<p>Chapter 717, Laws of 1894, providing that the civil- service rules shall not apply to the appointment in the classified state service of honorably discharged Union veterans where the compensation of the position does not exceed four dollars, a day, does not deprive the civil service commissioners of the right, or relieve them from the duty, of certifying the fact of such appointment to the comptroller. When any such appointment is made it is the duty of the appointing officer to notify the civil service commission, which is thereupon required to certify the fact to the comptroller, and until this be done the latter is forbidden to pay such appointee compensation for his services.</p>

<p>Appeal from a judgment rendered by the court without a jury.</p> <p>^ Action to set aside certain conveyances.</p>

<p>Appeal from judgment of a District Court.</p>

<p>Appeal from judgment of the General Term of the City Court, affirming judgment in favor of plaintiff.</p>

<p>Appeal from judgment of a District Court.</p>

<p>Appeal from judgment of the General Term of the City Court, affirming a judgment dismissing the complaint.</p> <p>For former decision, see 2 Mise. Bep. 257.</p>

<p>Appeal from judgment of the General Term of the City Court, affirming judgment in favor of plaintiff.</p> <p>Action of replevin.</p>

<p>Appeal from judgment of Third Judicial District Court.</p>

<p>Appeal by plaintiff from a judgment rendered upon the verdict of a jury.</p>

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

<p>Appeal from judgment dismissing complaint.</p>

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

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

<p>Appeal from a judgment on verdict of a jury in favor of plaintiff and against the defendant.</p>

<p>Appeal from a judgment entered on a verdict of the jury directed in favor of the plaintiff.</p>

<p>Appeal from judgment in favor of defendant. .</p>

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

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

Appeal by the plaintiff from a judgment entered on the direction of the trial judge dismissing the plaintiff’s complaint.

<p>Appeal from judgment dismissing complaint.</p>

<p>Appeal from a judgment directed in favor of the plaintiffs and against the defendants.</p>

<p>Appeal by the defendant from a judgment entered on a verdict in favor of the plaintiff.</p>

<p>Appeal by defendant from judgment on verdict.</p>

<p>Appeal by the defendants from a judgment entered on verdict in favor of the plaintiff.</p>

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

<p>Appeal from order directing service of bill of particulars.</p>

<p>Appeal from order denying motion to set aside a sheriffs sale of land.</p>

<p>Appeal from order in favor of defendant.</p>

<p>This is an appeal from a judgment entered for money only, by consent, in an action to foreclose a mechanic’s lien.</p>

<p>Appeal from an order denying a motion to charge Michael H. Curran, attorney, with costs as a person beneficially interested under section 3247 of the Code.</p>

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

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

<p>Appeal from judgment dismissing complaint.</p>