Volume 10 — New York Supplement

<p>Appeal from city court, general term.</p> <p>Action for personal injuries brought by Frank Seitz against the Dry-Dock, East Broadway & Battery Railroad Company. There was a verdict for plaintiff for $500. The judgment entered thereon was affirmed by the general term of the city court, and defendant again appeals.</p>

Action. by Thomas Mclntire against William Wiegand and Herman Wiegand, on an undertaking on arrest, executed by the defendants in an action heretofore commenced in this court, wherein one Sophia Wilkins was plaintiff, and the plaintiff herein was defendant, to recover damages for an alleged breach of promise to marry and seduction, and resulted in a verdict for the defendant, (plaintiff herein.) The defendants in this action were the plaintiff’s sureties in said action.

Action by Olin D. Gray, as assignee of the August Gast Bank-Note & Lithographing Company of St. Louis, against the Alabama National Bank, for an alleged breach of a written order, given by defendant'to plaintiff’s assign- or, to make a quantity of steel-plate bank-drafts; the order reciting that it was given on the understanding that “I [defendant] am to have a satisfactory design for” the drafts. The designs furnished were rejected as unsatisfactory.

<p>Action by Phoebe G. Fletcher against John Severs. Trial was had by the court without a jury.</p>

At chambers. Action by Mary A. Anderson against John Horn. After the answer had been served, and plaintiff’s attorneys had admitted service, they returned the answer because defendant was described as John A. Horan, stating that they had no such suit in their office, and, receiving no reply, proceeded in the usual six days to enter judgment in favor of plaintiff. Defendant now moves to vacate the judgment, and all subsequent proceedings.

At chambers. Action by W. H. Riley and Adolph Friedlieb against Solomon Stern, Moses Stern,'and Henry Stern, as constituting the Arm of S. & M. Stern. The answer of the two first-named defendants denied that Henry Stern was at any time a member of the firm, and alleged the firm was composed of said two first-named defendants and one Bernard Pasternak. Plaintiffs now move to have the name of Bernard Pasternak substituted for Henry Stern.

Action by Seth B. Johnson against Mon Lee and others, on a note for $1,980.34, subject to credits aggregating $179.80, leaving a balance due of $1,800.54. It was made in the firm name of Mansingson & Co., to the order of said firm, and indorsed by Mansingson & Co., Chu Fong, Quong Hong Luong & Co. There was also a waiver of protest and notice. The names Mansingson & Co. and Quong Hong Luong & Co. were put upon the note by Chu Fong, who was a member of both firms.

<p>Construction of the will of Charles B. Ransom, deceased.</p>

Judicial settlement of the accounts of Montgomery H. Vernon, executor of the will of Elias O. Goble, deceased. Decedent, after a bequest to Edna Miller, the only child of a deceased daughter, of $1,000, “to be paid to her when she attains the age of 21 years, ” gave the residue of his estate to his wife for life.

<p>1. Construction of Will—Legacy in Trust.</p> <p>A testator gave $2,000 to Ms executors in trust for Ms nephew, to be so managed as to best promote his future welfare and happiness, and to that end left “the disposition and management of said sum, both interest and principal, should it be necessary, ” to their “better judgment and discretion. ” Held, the legacy vested in the nephew at testator’s death, subject to the control of the executors, and at Ms death passed to Ms personal representatives, and not to the residuary legatee.</p> <p>2. Legacy in Lieu of Dower—Abatement.</p> <p>A legacy given in lieu of dower, even though it .exceed in value the dower right relinquished, does not abate on the failure of the estate to pay legacies in full.</p>

<p>Proceedings for the collection of the collateral inheritance and legacy tax on the estate of Helen Gapron, deceased.</p>

<p>On motion for correction of inventory of the estate of Warner Steward, deceased.</p>

James Hope was brought from California to New York under a requisition from the governor of New York, was convicted of the crime charged, and sentenced to a term of imprisonment. After his term had expired, and before an opportunity had been given him to return to California, he was arrested on a requisition from the governor of Delaware to the governor of New York, and he now applies to the governor of New York to vacate the warrant of arrest.

<p>At chambers. Petition by Madeline Pierce for an order that the comptroller of the city of New York be directed to pay to her damages awarded by the board of commissioners of estimate and assessments for injuries caused by opening Girard avenue to property conveyed to her after the report of the commissioners had been confirmed.</p>

Action by George W. Didsbury against J. Wesley Van Tassel, as sheriff of Dutchess county. Defendant appeals from an order denying his motion to set aside service of the summons.

This is an appeal by A. Paul Dunn from an order vacating a sale in foreclosure proceedings instituted by him, and directing the referee to repay to the purchasers, Frederick C. Herbs and Magnus D. Herbs, the amount paid by them on account of their purchase.

Apppeal from Washington county court. Action by James Dunn against John O’Keefe, originally commenced in a justice’s court, to recover -damages from defendant for negligently running into and breaking plaintiff’s wagon. The justice rendered judgment in favor of plaintiff for $16.10, the amount it cost to repair the wagon, and $2.15 costs. The county court affirmed the judgment, and defendant again appeals.

Action by Myron E. Bartlett against James Halligan. An order was entered denying a motion to punish Allen B. Divers, late under-sheriff of Wyoming county, for not paying over moneys collected by him on an execution,, and plaintiff appeals.

Action by Bernard Rothchild and others against the Grand Trunk Railway Company of Canada. Defendant demurs to the complaint on the grounds— First, that the court had no j urisdiction; second, that there was a misjoinder of causes of action; and, third, that there were not sufficient facts stated to constitute a cause of action.

Action by Byron W. Anderson against George Tomkins for broker’s commissions. Plaintiff moves for leave to sue the clerk for money deposited by defendant in lieu of bail. Code Civil Proc.

Henry Elsworth and another, executors of the will of Edward Elsworth, filed a complaint against Mrs. Sarah Hinton and others, beneficiaries under the will of Edward Elsworth, deceased, for an account of their testator’s transactions as trustee under the will of Henry Elsworth, deceased. The accounting was decreed, and a reference ordered.

<p>Appeal—Review—Matter not Apparent on Record.</p> <p>Code Civil Proo. N. Y. § 8545, provides that, on the trial of an issue of fact, “the surrogate must file in his office his decision in writing, which must state separately the facts found and the conclusions of law. Either party may, upon the settlement of a case, request a finding upon any question of fact, or a ruling upon any question of law: and an exception may be taken to such a finding or ruling, or to a refusal to find or rule accordingly. An appeal from a decree or an order of the surrogate’s court brings up for review * * * each decision to which an exception is duly taken by the appellant, as prescribed in this section. ” Held, that a case on appeal from a decree of the surrogate which does not contain a decision in writing stating “separately the facts found and conclusions of law, ” as required by section 2545, presents no question for review, and will be remanded for proper proceedings.</p>

An action by George B. Moore and Charles J. Pierce against the New York Bowery Fire Insurance Company to recover upon “a contract to procure a policy of insurance, which would insure the plaintiffs for a term of six months from loss or damage by fire to their creamery, situated on Main street, in Horth Harperville. ” Plaintiffs negotiated in May, 1887, for an insurance upon the creamery building in the sum of $800, and $800 on fixtures therein, and $200 on butter packages,…

Action by William W. Gilmore against Edward E. Ham and Sarah E. Ham, his wife, impleaded with Helen M. Gilmore, on a judgment recovered by plaintiff against said Helen M. Gilmore in February, 1885, for $2,276.10. The action was commenced in the nature of a creditor’s bill to reach property and moneys alleged to have been fraudulently received from the judgment debtor by the other defendants. From a judgment for plaintiff, Ham and wife appeal.

<p>1. Vendor and Vendee—Marketable Title.</p> <p>Where a testator devises all his property to executors in trust to apply the personalty and the rents of the realty to the payment of his debts and of specific legacies, and, after their payment, then over to designated persons, the trust, even if invalid as such, is good as a power. The testator, therefore, did not die intestate as to any of his property; and a purchaser Under a decree of sale rendered in an action for the partition of the land, to which all the devisees and legatees were parties, takes a marketable title, though testator’s heirs were not represented.</p> <p>2. Adverse Possession—Infants.</p> <p>Even if the heirs, who were then minors, were necessary parties to the partition action, the purchaser, who has been in open and continuous possession for 33 years, has an indefeasible title by adverse possession; Code Civil Proo. N. Y. § 375, providing that, where one is under a disability when his cause of action accrues, the time during which such disability continues shall not be considered in computing tile 20 years within which actions for the recovery of land must be brought, but that he must bring his action within 10 years after the disability ceases.</p>

<p>Executors and Administrators—Special Proceedings—Stipulations.</p> <p>In a special proceeding to determine the validity of claims against a decedent’s estate, the parties stipulated that the claimant should serve a complaint, and the executor his answer, and that the issues thus made should be referred. Held that, after the hearing before the referee on the issues made by the pleadings, the executor’s motion to amend his answer, so as to set up the statute of limitations, should be allowed without imposing on him the costs of the action so far incurred; it appearing that the stipulation was hastily drawn, and that the executor did not suppose that it changed the general rule in special proceedings, allowing any defense at the hearing, whether pleaded or not.</p>

Action by Stephen M. Chester against Francois Henry Jumel and others to determine the respective interests of parties to a fund. Charles A. de Chambrun and others appeal from an order denying his motion for a new trial. For former reports see 5 N. Y. Supp. 809 et seq., and 7 N. Y. Supp. 949, mem.

At chambers. Plaintiff being a non-resident, and there being numerous defendants, a motion was made to require plaintiff to furnish separate undertakings to secure each defendant, in lieu of an undertaking given by plaintiff to secure all the defendants.

<p>1. Trespass—Damages—Goods Taken.</p> <p>In an action for trespass in wrongfully entering pn plaintiff’s premises for the purpose of carrying away personal property belonging to plaintiff’s intestate, the value of plaintiff’s property carried away by defendant may be included in the damages.</p> <p>2. Evidence—Opinion—Value op Property.</p> <p>Any person knowing the value of personal property may testify to his opinion as to its value.</p>

Action by Junius E. Kingsley to open a settlement alleged to have been made February 1, 1875, in respect of the transfer to him of the interest of Paran Stevens, and of the defendants, James L. Melcher and others, as his executors, in the partnership of J. B. Kingsley & Co., proprietors of the Continental Hotel, Philadelphia. From the judgment entered in favor of plaintiff the defendants appeal.

Action by Joseph Palladino against the mayor, etc., of the city of New York. There was verdict and judgment for plaintiff. Defendant appeals.

On certiorari to review the action of Edward Hannan, James Fleming, and others, constituting the board of police commissioners of the city of Troy, in dismissing the relator, John H. Campbell, from the police force.

Action by Mary J. Coxe and George F. Jones, as executors, etc., of Mary J. Jones, against Byron J. Town, receiver of taxes for the town and village of Saratoga Springs, to vacate an illegal assessment, and restrain a sale therefor.

<p>Appeal from special term, Warren county.</p> <p>Action by Cornelia Blake against Fannie Everman, otherwise known as Fannie Blake. Defendant appeals from an order denying her motion to change the place of venue from Warren to Livingston county.</p>

Action by Sarah Owen against the Homeopathic Mutual Life Insurance Company. It was held at special term that under Code CiVil Proc. § 756, on the appointment of a receiver of a corporation against which an action was pending, there was a “devolution of liability.” Edwin M. Kellogg, the receiver of defendant, appeals from an order substituting him party defendant in its stead.

Action by Andrew J. Wightman against Augustus A. Brush, warden, and James Connaughton, keeper, of Sing Sing prison, for the infliction of cruel, unusual, and «Unlawful punishment by defendants on the plaintiff while he was confined in such prison.

<p>Estates—Creation—Fee-Simple.</p> <p>A grantee executed a declaration of trust reciting that the trust was for the sale of the land for the benefit of the grantor’s widow and two children; that when the youngest child became 81 years old the trust should terminate, and the estate he conveyed to the children subject to their mother’s dower rights; and that, “in case of the death of both of said children before the age of maturity, then I am to convey all and every part of said property then remaining unsold, and to pay over all income and proceeds of sales in my hands, ” to the grantor’s widow “for her sole and separate use and benefit, forever. ” Meld, that the children took a fee-simple estate under the trust, subject to their mother’s right of dower.</p>

Action by Francis Kiernas against Armand Wolff and Jules Wolff, for deceit in the sale of a horse, originally brought in a justice’s court, where the complaint was dismissed upon the ground that there was no fraud shown in the sale. The justice excluded testimony offered by plaintiff to show the condition of the horse at its death, 3Í days after the sale.

Lasak,. deceased. Probate was allowed, and the contestant, Margaret S. Ives, appeals. For other litigation over the will, see 7 H. Y. Supp. 2;8N.Y. Supp. 740, 775.

Action by Charles E. Skinner, as trustee of the Smith Moquette Loom Company, against Warren B. Smith, William F. Cochrane, and Eva S. Cochrane, and the Smith Moquette Loom Company. The court dismissed the complaint, and from the judgment thereupon entered plaintiff appeals. Code Civil Proc. ÍT. Y. §§ 1781, 1782, under which the action is brought, are as follows: “§ 1781. Action against Directors, eta., of a Corporation, for Misconduct.

<p>1. Counties—Supervisors—Designation of Official Paper.</p> <p>Under Laws ÍT. Y. 1886, c. 515, providing that the boards of supervisors in the several counties shall designate newspapers “to publish the laws, ” a designation of papers “to do the public printing” is sufficient.</p> <p>2. Same—Mandamus to Enforce Claim.</p> <p>It is the duty of a board of supervisors to allow a claim against the county, where the amount is undisputed, and its refusal to do so is not a mere error of law, but a breach of duty, which the courts will remedy by mandamus.</p> <p>8. Accord and Satisfaction—Part Payment.</p> <p>Acceptance ol a check for part of a claim against a county, where there Is no dispute as to the facts, and no agreement that it shall be in full, will not preclude a recovery for the residue. Distinguishing People v. Supervisors, 33 Hun, 305.</p>

John A. Macdonald, Albert W. Ham, and Arthur M. Wight were engaged in business as partners under the firm name of the “Trojan Button-Fastener Company. ” Notice of dissolution was given, and, before the partnership business was closed up, Ham and Wight, in conjunction with one Patterson and others, united in forming a corporation styled “Trojan Button-Fastener Co., Incorporated,” for continuing the business, and said Ham and Wight transferred all the property of the firm to…

Action by Charles M. Kitteredge and Jennie Davis, as assignees of James M. Davis, against J. Wesley Van Tassell, sheriff of Dutchess county. There was judgment for defendant, and plaintiff appeals.

■ Action by Julia A. Hurlehy against Godfrey R. Martine and James Ferguson.

Action by John W. Kissam against Robert C. Jones. There was a verdict for defendant, and, from the judgment entered thereon in his favor, plaintiff appeals.

Action by John Holding against William H. Allee, as trustee, etc., under the will of Joseph B. Allee. There was a verdict and judgment for plaintiff, and defendant appeals.

<p>1. Appeal—Review—Matters not Apparent on the Record.</p> <p>Where the case on appeal contains no order denying a motion for anew trial, the general term cannot review the questions whether the verdict was against the weight of evidence, and whether it was excessive.</p> <p>2. Libel and Slander—Evidence—Offer to Apologize.</p> <p>In an action for slander, testimony that defendant offered to apologize to plaintiff is admissible in mitigation of damages.</p> <p>8. Same—Instructions—Nominal- Verdict.</p> <p>A request, in an action for slander, that a verdict for nominal damages is a vin dication is rightly refused. Following Sandersonv. Caldwell, 45 N. Y. 398.</p>

<p>Appeal from trial term.</p> <p>Action by Lambert Becker and others against Joseph H. Fuels. There was a judgment for plaintiffs, and defendant appeals.</p>

Action by Bridget McCoy, as administratrix of Peter McCoy, against the Empire Warehouse Company, Limited, to recover damages for the death of her intestate while in defendant’s employ. From a judgment entered upon a non-suit plaintiff appeals.

Action by Margaret Ruppel against Michael Donohue. Between the 8th day of September, 1888, and April 22, 1889, the plaintiff, who was the owner of a butcher shop at Ho. 590. Tenth avenue, New York, sold and delivered to the defendant certain fats. Prior to the 8th day of September, 1888, the butcher shop of the plaintiff was owned and conducted by her husband, George Ruppel, from whom plaintiff purchased it.

Action by Bertha Koehler, as executor of Hermann Koehler, against Joseph Scheider, to recover rent for the months of March and April, 1886, under a yearly letting from May 15, 1885. The defense was a general denial and a constructive eviction. There was a verdict for defendant. The judgment entered thereon was affirmed at general term of the city court, and plaintiff again appeals. For report of a former appeal, see 4 H. T. Supp. 611. Code Civil Proc.

Action by John Claffy against John O’Brien and others to recover $582.06 for goods sold and delivered. A judgment entered on a verdict in favor of plaintiff was affirmed by the general term of the city court, and plaintiff again appeals.

Action by Patrick Whalen against the Standard Gas-Light Company of the city of New York to recover damages for a personal injury. There was a verdict for plaintiff for $5,000. From the judgment rendered thereon defendant appeals.

<p>1. Negligence—What Constitutes—Elevated Railway.</p> <p>The falling from an elevated railway structure of a crow-bar which was in use by an employe repairing the track, whereby a person in the street below was injured, raises a presumption of negligence, which is not overcome by proof that the crow-bar was dropped through the employe’s efforts to save himself from falling.</p> <p>3. Same—Instructions—Province of Jury.</p> <p>In an action against an elevated railroad company for injuries to a person in the street below by the falling of an iron bar from defendant’s track while undergoing repairs, a charge that the “ordinary care with which the railroad is chargeable requires it * * * to use reasonable and ordinary care in selecting such appliances as are in practical use and of easy application. * * * You must say whether the railroad company has used ordinary and reasonable care in performing this work upon its tracks. * * * Has it neglected the precautions which reasonable and prudent people would have taken to prevent an accident similar to the one upon which you have to pass?”—is not objectionable as inviting the jury to make affirmative suggestions as to possible safeguards which might have been supplied.</p> <p>8. Damages—Personal Injuries—Physicians’ Bills.</p> <p>In an action for personal injuries, the amount of physicians’ bills which plaintiff has paid on account of the injuries is admissible without proof of the value of the physicians’ services.</p>

Action by Lizzie Whitfield against the Broadway & Seventh Avenue Bail-road Company for personal injuries sustained by reason of defendant’s negligence. A judgment entered upon a verdict against defendant was affirmed by the general term of the city court. Defendant again appeals. Code Civil Proc.

<p>Appeal from trial term.</p> <p>Action by Carlos C. Buck against the Manhattan Railway Company. There was a verdict for defendant. Plaintiff appeals. For former reports, see 2 N. Y. Supp. 718; 6 N. Y. Supp. 524.</p>

Action by Emanuel Peris against the Metropolitan Life Insurance Company. Defendant appeals from an order granting a discovery, and inspection of its books. For report of a former appeal, see 8 N. Y. Supp. 532.

Action by Elizabeth B. Sanders, as devisee and executrix under the will of Charles W. Sanders, deceased, to restrain the New York Elevated Railroad Company arid the Manhattan Railway Company from further operation.of their elevated railway in front of plaintiff’s premises, 41 Third avenue, New York city, and to recover damages already sustained by reason thereof. From the judgment entered in favor of plaintiff the defendants appeal. For former report, see 7 N. Y. Supp. 641.

Action by Eagle Tube Company against Edward Barr Company. Plaintiff appeals from a judgment of the city court, general term, affirming a judgment in favor of defendant on a counter-claim.

<p>Appeal from eleventh district court.</p> <p>Action by Theodore Buddin against Maicho Fortunato. There was judgment for plaintiff, and defendant appeals.</p>

<p>Negligence—Dangerous Premises—Elevators.</p> <p>Plaintiff’s intestate went to defendant’s apartment house to visit a servant of one of the tenants, and entered an elevater used for carrying freight and servants. In one side of the elevator was a slide, movable up and down, for the purpose of taking on baggage. While the elevator was ascending, intestate, either through faintness or loss of consciousness, sank to the floor, and fell through the slide, which was open. Held, that the accident was a misadventure for which defendant could not be held liable.</p>

Case submitted on agreed statement. Action by Sarah A. McGrane against James Kennedy and Patrick Kennedy, for specific performance of a contract to purchase premises No. 538 West Thirty-Eighth street, in the city of New York.

An action by Susan Geoghegan, as administratrix of John M. Geoghegan, against the Atlas Steam-Ship Company, for negligently causing the death of plaintiff’s intestate. Plaintiff appeals from an order denying her motion for a commission.

Action by William T. Shackelford against Ann Eliza Mitchill and others, executors, etc., of Samuel L. Mitchill, for an accounting as to the proceeds of a policy of insurance on the life of Adrian H. Van Bokkelen, plaintiff’s assignor. The following opinion was delivered at special term: Defendants appeal.

<p>Slander—Pleading—Bill of Particulars.</p> <p>In an action for slander, plaintiff will be required to furnish a bill of particulars giving the name of at least one person present on each of the occasions on which the alleged slander was uttered. Following Mempewolf v. Mills, 53 N. Y. Super. Ct. 105.</p>

<p>At chambers. Action by Jacob Ottomann against George H. Fletcher. The complaint alleged that plaintiff and one Alberto H. Chaffee entered into a contract in writing whereby plaintiff agreed to make and deliver to Chaffee a lot of comic playing cards and advertising cards. The third, fourth, and fifth paragraphs of the complaint, referred to in the opinion, are as follows: “ (3) That plaintiff has complied with all the terms of said contract as modified, as alleged hereinafter, and has made and delivered or duly tendered to said Chaffee thirty-seven thousand seven hundred packs of said cards, and performed all the conditions of said contract on his part, and that, thirty days after the delivery or the tender of said goods complete, he duly demanded performance and payment therefor on the part of said Chaffee, which he has refused, and still refuses, to plaintiff’s damage three thousand one hundred and forty-seven dollars, no part of which has been paid. (4) That, when plaintiff manufactured said cards from the stock originally estimated by him to fill the contract, there were but thirty-seven thousand seven hundred packs produced; that the attention of said Chaffee, and the defendant herein, was called to said deficiency, and to a consequent deduction in the contract price to compensate therefor; that they made no objection to the receipt of said thirty-seven thousand seven hundred packs, and acquiesced in the same, and consented to accept said goods tendered, with said consequent deduction in price, in performance of said contract, and waived the delivery of the balance of said cards; that it was customary among lithographers, in making contracts for large quantities of lithographic work, to make allowances for variances in quantity, from the difficulty of accurately estimating the original stock to be manufactured, and said contract having been made with said custom in view. (5) And plaintiff further shows that, in consideration of the premises, and as a condition of plaintiff making said contract, and as an inducement for him to do so, this defendant, on the day said contract was made, guarantied in writing the payments as aforesaid under said contract to be made by said Chaffee, which guaranty, as written under said contract in words and effect as follows: ‘Payments by A. H. Chaffee as above guarantied. H. Y., April 30,1888. Geo. H. Fletcher.’” Defendant now moves to make the complaint more definite and certain.</p>

Action by James McBride against Shepard Tappen, sheriff of Rensselaer county, for the levy and sale of plaintiff’s property upon execution issued against him. Defendant moved for the substitution of his indemnitors, Peter and Abraham Van Vechten, as defendants. From an order granting the motion plaintiff appeals.

Action by Clarissa J. Barrett against the American Telephone & Telegraph Company. Defendant appeals from an order denying its motion to set aside service of the summons.

Action by Ami K. Strang against Catharine Peterson and Henry Peterson, her husband, and Isabella Whitney and Constant White as administrators of Seth Whitney, deceased, to foreclose a mortgage executed by defendants Peterson.

Petitions severally by William C. Camp, Mary Ella Camp, and Julia A. Tebbetts, wards of Calvin B. Camp, for an accounting. Both parties appeal from the decree. Eor former report, see 3 ST. Y. Supp. 335.

<p>Highways—Establishment by User.</p> <p>Laws N. T. 1865, c. 6, providing for highways by user for 20 years in the counties of Suffolk and Queens, immediately upon its taking effect, converts roads in those counties which had been previously used by the public as thoroughfares for 20 years into public highways, by operation of law.</p>

Petition by William P. Van Tassel against John Derrenbacher, county treasurer, to require him to apply the sum of $1,453.03, being the amount of taxes (except road and school taxes) levied and collected, and paid to the treasurer, on the assessed valuation of the Wallkill Valley Railroad in the town of Rosendale, in Ulster county, for the year 1887, towards the redemption of the bonds issued by said town to aid in the construction of said railroad.

<p>Pleading—Bill of Pabtioülabs—Action on Account.</p> <p>A complaint alleged that plaintiff, between certain dates, rendered defendant’» testator services and advanced him money, in all of the value of $2,000; that they adjusted their accounts at $2,000, and agreed that the same should be payable at testator’s death, and that he would make testamentary provision to that effect; and that testator died without having paid or made provision for the payment of said sum. Held that, as the complaint stated a cause of action on an account, as well as on the account stated and promise of testamentary provision, plaintiff would be required to furnish the items of her account.</p>

Action by James M. Marvin against Byron J. Town, receiver of taxes for the town and village of Saratoga Springs, and the village of Saratoga Springs. There was judgment for plaintiff, and defendants appeal.

<p>Appeal from special term, Saratoga county.</p> <p>Action by Henry B. Hanson against Byron J. Town, receiver of taxes, etc., and the village of Saratoga Springs. There was a judgment for plaintiff, and defendants appeal.</p>

Action of the Corn Exchange Bank against Alphonso W. Blye, receiver of the Middletown National Bank.

<p>Appeal from special term, Queens county.</p> <p>Foreclosure by John J. Quinlan against Emily A. Stratton and Samuel W. Judson. On July 25, 1862, defendant Emily A. Stratton mortgaged the premises in suit to Joseph Fitch for $2,500. One thousand dollars of the principal was paid off, and then Fitch died. Amos L. Fitch was appointed executor, and, default having been made in paying interest on the bond and mortgage, foreclosure proceedings were begun. Emily Stratton, mother of defendant Emily A. Stratton, loaned at various times sums of money to defendant aggregating $2,000. A portion of this money was used in paying off the incumbrances of the Fitch mortgage, and preventing the property From being sold in foreclosure. Subsequently, on February 18, 1881, the bond and mortgage, and the decree of foreclosure and sale in the action of Fitch against Stratton were assigned to defendant Judson. Before this assignment, on July 27,1880, defendant Emily A. Stratton executed the mortgage in issue in this action to her mother, Emily Stratton, to secure the payment of the $2,000 advanced by her. This mortgage was subsequently assigned to Susan C. Currie, and by her to plaintiff, who brought this action. The defendants answered separately, defendant Judson claiming that the assignment of the first mortgage gave him a prior lien. Defendant Emily A. Stratton alleged that Susan C. Currie was the real party in interest in this action to foreclose the second mortgage; that on April 10, 1865, one James T. Stratton mortgaged to defendant Emily A. Strattoú three acres of other land for $2,750; that in September, 1872, she assigned this mortgage to Hallett C. Hicks, covenanting that the mortgage was collectible, and that the proceeds thereof, $2,750, were loaned to Susan C. Currie; thattwo months thereafter Susan C. Currie purchased the land, and assumed the mortgage, but that she never paid it, and that Hicks-foreclosed, and also obtained a personal judgment for deficiency against defendant Emily A. Stratton. Defendant answered further that, when the James T. Stratton mortgage was assigned to Hicks, in September, 1872, this defendant Emily A. Stratton executed another mortgage to him on the land in controversy as security for the $2,750 paid by Hicks on the assignment of the James A. Stratton mortgage, and loaned to Susan C. Currie; that Hicks subsequently obtained a judgment of foreclosure of this mortgage; and that this judgment remains unpaid. There was no evidence, however, tending to show that Susan C. Currie was the real plaintiff in interest in this action, as alleged in the answer, or that she had anything to do with the loans made to Emily A. Stratton by her mother. The court found in favor of plaintiff as against defendant Stratton, and in favor of defendant Judson to this extent: that the assignment of the decree in foreclosure in the Fitch action was for the benefit of Emily Stratton as well.as defendant Judson; that plaintiff succeeded to her rights; and that on payment of $2,015.33, with interest from February 14, 1881, to defendant Judson, plaintiff would be subrogated to all his rights. Defendants appeal. For opinion on motion for new trial, see? 27. T. Supp. 786.</p>

Action by Agnes E. Abel, as executrix, etc., against the Delaware & Hudson Canal Company to recover for the death of her testator while in the employ of defendants. There was verdict and judgment for plaintiff, and defendant appeals. Eor former report, see 9 H. E. Rep. 325.

Proceeding against Isaac Bradt for selling liquor without a license. The complaint, which was made by one James Powell, alleged that complainant on October 5, 1887, “at líos. 66 and 68 Green street, in said city of Albany, did purchase as a beverage one bottle of port wine from one Susan Mitchell and Isaac Bradt, and did then and there drink the same, ” and that said Mitchell and Bradt had no license to sell liquors in quantities less than five gallons at a time.

Action by Pierce S. Marx against the Manhattan Railway Company. There was a judgment for plaintiff, and defendant appeals. For former report, see 3 H. Y. Supp. 113.

Application by Richard W. Welling for mandamus to Alexander Meakin and others, commissioners of excise. The order was granted, and defendants appeal.

Action by Sumner B. Claggett and Charles T. Chickering, as administrators of the estate of James H. Paine, against the Metropolitan National Bank, to recover the amount of certain bank-bills issued by the Metropolitan. Bank while incorporated under the laws of the state, and before it became a national bank.

Action by Benjamin Collins against Long Island City to vacate taxes on lands in defendant city for the years 1884, 1885, and 1886. The lands were vacant and unoccupied. There was judgment for plaintiff. Defendant appeals.

Foreclosure proceedings instituted by Edward Schell, trustee of Mary Pay-, son Cargill, against George B. Elkins and others. An order was entered denying plaintiff’s motion to be released from his purchase at the foreclosure sale, and setting aside the order continuing the sale, and directing the sheriff to make a new report allowing plaintiff less on account of taxes and interest, and plaintiff appeals.

Action by the Gloucester Iron-Works against the board of water commissioners of the village of Sing Sing. Plaintiff appeals from an order denying a motion for consolidation of actions, and for further relief.

Action for partition, brought by Eosetta M. Kearney against Charles E. Fleming, and Sarah, his wife, and Charles Jones.

Action by Edward K. Willard and others, composing the firm of E. K. Willard & Co., against Edward H. Westcott and Alfred Wilkinson, their assignees, James 8. Crouse, Hamilton S. White, Giles Everson, Lucius Moses, and others, brought to determine the rights to stocks in the possession of plaintiffs. The action was referred, and from the judgment entered upon the report of the referee defendants White, Everson, and Moses appeal.

Action by David Welch against the Old Dominion Mining & Bail way Company, to recover for professional services rendered by him as an attorney at law. There was a verdict for plaintiff for $2,793.33, and from the judgment rendered thereon defendant appeals.

Action by Ralph S. Hamilton and Ralph S. Hamilton, Jr., against Frederick D. Steck, William H. Payne, and another. The motion of Robert B. Holden and diaries I. Gardiner, as junior lienors, to vacate an attachment obtained by Ralph S. Hamilton and another against the property of William H. Payne, on the ground of the insufficiency of the papers on which the warrant was granted, was denied, and the applicants appeal.

<p>Appeal from special term, New York county.</p> <p>Action by Henry Thoesen against Thomas D. Crowe. Defendant appeals from an order directing him to serve a bill of particulars.</p>

Action by John E. Sweeney, individually, and as administrator c. t, a. of Ephraim Sweeney, to enforce the execution of certain trusts created under his testator’s will, and for an accounting, by Charles D. Sweeney and Jeremiah J. O’Connor, as executors of Daniel Sweeney, the executor named in said will. There was judgment for defendants, and plaintiff appeals.

On certiorari to review the dismissal of Alexander Hicinbothem from the position of inspector of buildings of New York city by Henry D. Purroy and others, fire commissioners.

Action by William H. Lyon and Joseph H. T. Martin, against James M. Davis, Charles M. Kittredge, and Jennie-Davis, to set aside an assignment ■for benefit of creditors executed by said James M. Davis to his co-defendants. The assignment contained several preferences, of which the first - was for •$1,500 to the debtor’s wife and assignee, and the second was for $300 to his -sister-in-law, both for alleged loans. Plaintiff assails the validity of these preferences.

Action by Lawrence Drake against Joseph T. Drake and others. There was judgment for defendants, and plaintiff appeals. For report of decision at special term, see 3 FT. Y. Supp. 760.

Action by Herman Hahlo and others, composing the firm of H. Hahlo & Go., against Hugh J. Grant, sheriff of the city and county New York, and others, to replevy goods in possession of defendant Grant, under executions against Isaac Shackman, who claimed to have purchased the goods of plaintiffs. Plaintiffs recovered a verdict and judgment, and defendants appeal.

For decision on appeal, see 9 FT. T. Supp. 607. Action by John Lamberty against Milton J. Eoberts for services performed. A judgment for plaintiff was affirmed on appeal (9 FT. T. Supp. 607,) and appellant (defendant) now moves for a rehearing.

<p>Statute of Frauds—Original Promise.</p> <p>. Where plaintiffs refused to furnish any more, lumber to a contractor for use in the erection of a house for defendant unless defendant became responsible, defendant’s promise to pay for lumber thereafter delivered was an original undertaking, and therefore not void, under the statute of frauds, because not in writing.</p>

<p>Appeal—Review—Weight op Evidence.</p> <p>Where only two witnesses testify, the determination of the trial judge on a question of fact will not he reviewed by the general term.</p>

Action by Mary A. Pountney for a limited divorce from her husband, William Pountney. Plaintiff appeals from an order denying her motion for an allowance for counsel fees in addition to the taxable costs, which motion was . made at the close of the trial, the issue having been decided in her favor.

Action by Queens County Bank against Eliza M. Leavitt on a promissory note for $2,800, made November 5,1888, by defendant to order of her husband, Rufus W. Leavitt, and indorsed by him to plaintiff. There was a judgment for plaintiff. Defendant appeals. Laws N. T. 1884, c. 381, provides: “Section 1.

<p>1. Contract—Consideration—Renewal Note.</p> <p>A renewal note, signed by a married woman as surety for her husband, is supported by a sufficient consideration where the payee surrenders the old note of the husband.</p> <p>2. Bled oe—Action for Debt—Retention of Collateral.</p> <p>The retention of securities deposited as collateral security will not bar an action on the note secured, nor is there any obligation on the payee to sell the securities before bringing his action.</p>

<p>Appeal from Dutchess county court.</p> <p>Action by William H. Wood against Elisha T. Baldwin, originally brought in a justice’s court, where plaintiff recovered a judgment, which was op¡» proved by the county court. Defendant again appeals.</p>

Action by the Metropolitan Life Insurance Company against Wilson C. Hall, Asa W. Parker, and Sophie G. Parker, his wife, to foreclose a bond, mortgage, and builder’s loan agreement. From a judgment entered in favor of plaintiff, the defendants Parker appeal.

Action for false imprisonment, brought by Anton Nowak against George F. Waller, George W. Jeffery, and Egbert Benjamin. Defendant Waller is a justice of the peace; the defendant Jeffrey, an overseer of the poor; and defendant Benjamin, a constable. The court dismissed the complaint as against all defendants. Plaintiff appeals.

At chambers. Action by William T. Van Zandt individually, and as executor of the will of Thomas Van Zandt, against Leopold Van Zandt, Marie A. Van Zandt, and Isabel Sanford, for an interpleader as to the conflicting claims of Marie, the divorced wife of Leopold Van Zandt, and Mrs. Sanford, his grantee, to property of Leopold Van Zandt derived under the will of Thomas Van Zandt, deceased.

<p>Evidence—Parol to Affect Writing—Waiver.</p> <p>Where a written contract for the sale of timber provides that, unless it is removed before a certain day, it shall revert to the seller, evidence of a subsequent paroi agreement, made before the expiration of the time limited in the original contract, by which the purchaser is given further time to remove the timber, does not alter the written contract, but is admissible to show that the seller waived strict performance of the original requirement as to removal.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Samuel Schuyler and others against the Phoenix Insurance Company of Brooklyn. There was judgment for plaintiffs, and defendant appeals.</p>

<p>Witness—Privileged Communications—Attorney and Client.</p> <p>A communication by plaintiff to his attorney, for the purpose of its publication to defendant, is not privileged, under Code Civil Proc. N. Y. § 835, prohibiting an attorney to disclose a communication made by his client to him in the course of his professional employment.</p>

An action by Otto Volk, an infant, by Wilhelmina Volk, his guardian ad litem, against Johnson Livingston, as president of the YationalExpress Company, to recover for personal injuries received through the alleged negligence of defendant’s servant. There was a verdict for plaintiff for $150. From the judgment entered thereon defendant appeals.

<p>Appeal from Albany county court.</p> <p>Action by Luke Cox against the Albany Brewing Company. Defendant appeals. Bor appeal from judgment of nonsuit, see 6 Y, Y. Supp. 841..</p>

Case submitted on agreed statement. Action by the Berlin Iron-Bridge Company against Joseph E. Wagner, highway commissioner. The attorney general moves to dismiss the submission.

Action by Walter J unge against John Haugfor an alleged breach of a contract of employment. Judgment was entered on a verdict for plaintiff, and defendant appeals.

The defendant, an infant, carried on for three years a store in Cohoes, for the sale of hats and caps. In .Tune, 1883, he purchased hats and caps of the plaintiffs, amounting, at the agreed price, to $194.25, and placed them with his stock in his store. He did not pay the plaintiffs. In December, 1883, be made a general assignment of his stock in trade, including a considerable portion of the hats and caps bought of the plaintiffs, for the benefft of creditors.

Certiorari by Patrick McCormack to review the action of Stephen B. French and others, constituting the board of police commissioners, discharging relator from the police force.

<p>Wills—Undue Influence—Submission to Jury.</p> <p>On an issue whether a will was the result of undue influence on the part of testator’s .daughter, there was evidence that, at the time of its execution, testator was 67 years old, and feeble in mind and body; that bis relations with his daughter were such that he would avoid and hide from her, and had described her as being “ one of the most cold-hearted daughters; ” that testator had six months previously executed a will making a fair distribution of his property among his wife and children; that this will came to the possession of the daughter, who wrote testator, imploring him to see her, so that he might “look at things in a different light; ” that, after repeatedly avoiding her, testator had frequent interviews with her, some of which irritated him, while others moved him to tears; and that the will in question was then executed upon the model of the old one, with important amendments in favor of the daughter and her children, and to the probable exclusion of testator’s favorite son and his children. There was also evidence that testator had remarked upon the importunity of his daughter, and had stated that he had to make three wills before ho could satisfy her. Held, that the question as to undue influence should have been submitted to a jury.</p>

Action by Maggie La Manna, as administratrix of John B. La Manna, against the National Security Life & Accident Company, a co-operative or assessment association formed under Laws N. T. 1883, c. 175. A verdict was directed for plaintiff, and from the judgment entered thereon defendant appeals.

<p>Action by Pierce Marx against the Manhattan Railway Company, for personal injuries. The action was formerly tried in the court of common pleas, where, on the denial of plaintiff’s motion for leave to amend the complaint, he refused to proceed with the case. Defendant now moyes to dismiss the complaint, alleging that the claim is barred by limitation. Code Civil Proc. N. Y. § 405, provides that if an action is terminated otherwise than by voluntary discontinuance, dismissal for neglect to prosecute, or final judgment, plaintiff may bring another action within one year after such termination. For other reports, see 3 N. Y. Supp. 113; ante, 159.</p>

At chambers. Action by Herman Cantor against Hugh J. Grant, sheriff of the city and county of New York, for the wrongful levy of executions on property of the estate of one Isaac Sickle, which had theretofore been assigned to plaintiff for the benefit of said Sickle’s creditors. Defendant, having taken an indemnifying bond from the attaching creditors before making tlie levy, now moves to substitute the obligors in said bond as defendants in his stead. Code Civil Proc.

<p>At chambers. Action for divorce.</p>

Action by Paul Bailly against the Hashawannnck Manufacturing Company, arising out of the use by defendant of certain marks and devices on suspenders, and on the boxes in which the suspenders were packed, and to which plaintiff claimed the right.

Case submitted on agreed statement. Action by Ruthelle Bogardus against Francis Caragher. Following is the agreed statement: The above-named parties hereby agree upon the following facts to be submitted to the court for the determination of their controversy thereon: First.

Action by Emeline L. Fitch against the Broadway & Seventh-A venue Railroad Company, for personal injuries sustained by falling from defendant’s car. The injury sustained was a fracture of some kind of the neck of-the femur, which resulted, as the evidence tended to show, in the shortening of the leg, and caused plaintiff the most intense suffering.

Action for divorce by Doretta B. Moriarty against Jeremiah J. Moriarty. Defendant appeals from an order directing the payment of alimony pendente lite and counsel fees.

<p>Discovery—Examination or Party before Trial.</p> <p>An order for the examination of defendants before trial, asked for on the ground that such examination is necessary to enable plaintiff to amend his complaint, will be reversed where the affidavits on both sides show that plaintiff has sufficient. knowledge of the facts constituting his alleged cause of action, and seeks information concerning an anticipated defense, and to ascertain whether the cause of action cannot be extended to other parties.</p>

<p>Appeal from special term.</p> <p>Action by Jacob F. Bamberger and others against the Fire Association of New York, the Mutual Fire Insurance Company, and the Armstrong Fire Insurance Company. From an order denying their motions for a reference, defendants appeal.</p>

<p>Factors and Brokers—Stock Owned by .Brokers—Rescission.</p> <p>Plaintiff ordered defendant, as a broker, to buy for him a number of shares in a mining company, and the shares were delivered to him by defendant. Afterwards the mine was bought by another company, and the shares made convertible into shares of the new company, and plaintiff so converted his shares. Subsequently he claimed to have discovered that defendant did not buy the shares, but simply turned over some which he himself owned, and thereupon sought to repudiate the purchase, and for that purpose borrowed the requisite number of shares in the original company, and tendered them to defendant. Meld that, in order to rescind the sale, plaintiff should have tendered the shares which he received in the new company, as he could not retain the subject of his purchase, and at the same time maintain an action for the wrongful act of the broker in delivering stock owned bv himself.</p>

<p>Evidence—Declarations and Admissions—Offer of Compromise.</p> <p>An offer of compromise made is inadmissible in evidence against the party making it.</p>

<p>Appeal from city court, general term.</p> <p>Action by Louis Rosenfeld against Jacob Hew, for moneys deducted from the salary of plaintiff while he was in defendant’s employ, for alleged overcharges in his traveling expenses. A judgment entered on a verdict for plaintiff was affirmed by the general term of the city court, and defendant again appeals.</p>

Action by Henry Wilson and George D. Wilson against Stephen Ryder, for procuring goods by a false representation that defendant owned property worth $20,000, free and clear of incumbrances. The action was referred to a referee. As appears by plaintiff’s evidence, they sold defendant a bill of goods amounting to $252.98 on the faith of his representation as to his property.

<p>1. Orders—Conditional Acceptance.</p> <p>Where defendants accept an order on them for the payment of money by writing thereon “Accepted, payable out of” a certain payment, the acceptance is conditional, and becomes absolute when the specified payment is made to defendants.</p> <p>8. Same—Consideration.</p> <p>Where plaintiff testifies that he took the order in payment for plastering, in reliance on defendants’ promise to accept it, and forebore to file a lien for the amount due him, it is immaterial whether or not defendants received any consideration for their acceptance, as plaintiff’s forbearance is sufficient to bind them.</p> <p>8. Appeal—Harmless Error.</p> <p>Where defendant is allowed as a witness to refer to and refresh his memory from a certain instrument which is excluded from evidence, and plaintiff subsequently withdraws all objections to the admission of the instrument, but defendant declines to introduce it, any error in its original exclusion is cured.</p>

<p>Appeal from seventh district court.</p> <p>Action by Aaron Stone against John W. Thaden, to recover a part payment made on a contract to purchase land. Judgment for defendant. Plaintiff appeals.</p>

<p>Landlord and Tenant—Repairs—Evidence.</p> <p>In an action by a lessee to recover money paid for repairing the roof of the leased house, a collateral agreement, binding the lessor to make such external repairs, is admissible in evidence, where the only provision of the lease relating to that subject is that the lessee shall make all repairs, except those to the exterior of the building.</p>

<p>Carriers—Injury to Passenger—Assault by Employe.</p> <p>A street railway company is liable for the acts of one of its drivers in wrongfully throwing a passenger off a car; the rule relieving a master from liability for a malicious injury inflicted by his servant not applying as between a common carrier and a passenger where the servant is performing duties which the master owes to its passengers.</p>

At chambers. Action by J. Homer Hild reth against Albrecht J. Lerche and Joseph Ludwig,as sureties in an undertaking given on appeal, by Elise Bethune, testator’s widow, from the decree of the surrogate’s court of New York county, admitting to probate the will of John G. Bethune, deceased, the decree appealed from having been affirmed. 48 Hun, 614, mem.

<p>Indictment against John B. Sullivan and Arthur Main, inspectors of election of the town of Watervliet, in the county of Albany, for attempting to make false returns. Defendants demur to the indictment.</p>

Action by William D. McGill against Gustavus Weil. Plaintiff had judgment, and now moves to punish defendant for not obeying an order in supplementary proceedings.

<p>Wills—Payment of Legacies.</p> <p>An affidavit which fully states the facts, filed with a notice of a motion to require the administrator to pay a legacy, is a sufficient “petition” to authorize a citation, as prescribed by Code Civil Proc. ü. Y. §§ 3717, 3718, prescribing the procedure to compel payment of legacies.</p>

Application by Dennis Crowley for mandamus to the supreme council, Catholic Benevolent Legion, to reinstate him as a member of a subordinate council of respondent. The subordinate council of which relator was a member was suspended by the supreme council on the ground that its members stood suspended for failure to pay various assessments which had been levied.

<p>Appeal from special term, Kings county.</p> <p>Action by James H. G. Baker and William F. Baker against Louis Ziegler. From a judgment dismissing their complaint the plaintiffs appeal.</p>

Martin O’Donnell was convicted of selling, without a license, intoxicating liquors in quantities less than five gallons at a time, to be drank on the premises where sold, and he now appeals.

Action for personal injuries, brought by Michael Hughes against the Orange County Milk Association and Michael McGirr. There was a verdict for plaintiff for $4,680, and from the judgment entered thereon defendant association appeals.

Action by Daniel Buhler and Elbert Stannard against Charles E. Hubbell, George A. Porter, Daniel W. Richards, and Morton B. Smith to enforce an agreement between all the parties to the action for the disposition and sale of certain vessels owned by the parties- as' tenants in common. There was judgment for plaintiffs, and the vessels were ordered sold.

Action by H. C. Ball and Bose B. Ball, his wife, against Dr. Burleson, for alleged negligence and want of skill in setting said Bose E. Ball’s broken leg, whereby she was caused great suffering and was permanently injured.

<p>Testamentary Powers—Option op Donee.</p> <p>A devise of 20 acres of certain specified land, “ or such .other twenty (20) acres of any land of which I may die seised or may be agreed upon between ” the devisee and the executors, leaves it to the option of the executors to agree on other land; and where the land specified has been sold under a mortgage during the life-time of the testatrix, the executors cannot be compelled to exercise the power, Corlett, J., dissenting.</p>

<p>Appeal from special term, New York county.</p> <p>Action by the First national Bank of Jersey City against Peter Lenk and others, constituting the general partners, and Otto Huber and another, constituting the special partners, in the limited partnership of Peter Lenk & Co. Plaintiff sought to hold the special partners liable as general partners on the ground that their contributions to the capital of the firm were not in “actual cash payments,” as required by 4 Rev. St. 3ST. Y. (8th Ed.) p. 2492, § 2. Pending this action, defendant Huber died, and on plaintiff’s motion the action was revived against the executors of decedent’s will. The following opin- ' ion was filed at special term:</p> <p>Defendants appeal.</p> <p>Code Civil Proc. H. Y. § 758, is as follows: “In case of the death of one of •two or more plaintiffs, or one of two or more defendants, if the entire cause ■of action survives to or against the others, the action may proceed in favor of •or against the survivors. But the estate of a person or party jointly liable upon contract with others shall not be discharged by his death, and the court may make an order to bring in the proper representative of the decedent when it is necessary so to do for the proper disposition of the matter, and, where ■the liability is several as well as joint, may order a severance of the action so "that it may proceed separately against the representative of the decedent, and ■against the surviving defendant or defendants. ”</p>

Action by Jonas P. Varnum, administrator, etc., of Charles J. Hayden, deceased, against George W. Skinner and John Slater. Judgment was given for plaintiff, and defendants appeal.

At chambers. Two actions by Sarah P. Churchill against Cornelius V. Witbeck. One action was to settle up partnership business, and the other was on a promissory note executed by defendant to plaintiff. The answers averred that “there was an entire failure of consideration for the promissory note” set out in the complaint, and denied that “the amount [of the note,] or any part thereof, was due” to plaintiff.

<p>Appeal from surrogate’s court, Monroe county.'</p> <p>Settlement of the accounts of John H. Hopkins, executor, etc., of Bosetta D. Oviatt, deceased.</p>

<p>Motion for a new trial on exceptions.</p> <p>Action by Frank M. Hayes, receiver of the First National Bank of Auburn, N. Y., against Mary E. Hood. Judgment was given for plaintiff.</p>

Action by Mary Schmidt, as administratrix of Frederick J. Schmidt, deceased, against Norma Keehn and Edward J. Keehn, for the negligent killing of plaintiff’s intestate. The complaint was dismissed as to defendant Norma Keehn, and plaintiff appeals.

Action by James Dorsey against Bosella E. Pike for the price of machinery sold. Judgment on a f'erdict for plaintiff, and an order denying a new trial, were entered, and defendant appeals. For former report, see'3 N. Y. Supp. 730.

Proceeding on the relation of George W. Steitz, as chairman of the board of supervisors of Monroe county, to punish Edward J. Rice for contempt in refusing to answer certain questions propounded to him as a witness before a special committee of the board of supervisors. Defendant was adjudged guilty, and appeals.

Action by J. M. and Charles B. Crouse against Luman Bailey, sheriff of St. Lawrence county. Plaintiffs had recovered a judgment for $164.05 against William R. Fuller on January 26, 1886, which was docketed in St. Lawrence county, January 27,1886. On the same day an execution was issued thereon, and placed in the hands of defendant, as sheriff of St. Lawrence county.

<p>Reference—View by Referee.</p> <p>Where, by consent of parties, the referee inspects the premises which are the subject of the action, he may construe the testimony adduced before him in the light of the information obtained by the inspection, and it cannot be objected that his finding is unsupported by the evidence.</p>

<p>Appeal from judgment on report of referee.</p> <p>Suit by Mary Burrows Smith against the First National Bank of Albion, N. Y., and Henry J. Anderson, as receiver. Judgment for plaintiff for $31,670, from which defendants appeal.</p>

<p>Appeal from special term, Monroe county."</p> <p>Action by Edward S. Jaffray, Howard Jaffray, McVickar, John R. Woodruff, and Charles J. Hatfield against Louis Hast, Samuel M. Hast, and Hathan Hast, doing business as Hast Bros. Defendants appeal.</p>

<p>Appeal from special term, Tompkins county.</p> <p>Action by Obed A. Seely against Amos D. Shaffer. Judgment was given for plaintiff, and defendant appeals.</p>

Action by Jerome D. Holmes against William E. Boper and Eliza W. Boper, administrators, etc., of Job Holmes, deceased. An appeal was taken from a judgment entered against defendants on the 29th day of June, 1889, in Tioga county, for $2,427.84; also from an order confirming the referee’s report entered in said county on the 28th day of June, 1889.

<p>L Associations—Actions—Proof of Membership.</p> <p>Where a defendant who is sued as president of an unincorporated association consisting of seven or more members, (Code Civil Proc. N. Y. § 1919,) fails to produce ■the constitution and by-laws of the association after being notified to do so, evidence that, in addition to the original members, tickets were issued to a large number of other persons who contributed to the support of the association, and were entitled to all the privileges of the original members, is sufficient proof that the association consisted of more than seven persons.</p> <p>2. Same—Parol Evidence.</p> <p>Parol evidence is admissible, in an action against the president of an unincorporated association, to prove the number of the members, after defendant fails to produce the constitution and by-laws on notice.</p> <p>8. Negligence—Dangerous Premises.</p> <p>The establishment of a toboggan slide across one of the principal streets of a. populous city is of itself negligence sufficient create liability for injuries caused, thereby.</p> <p>4. Husband and Wife—Action by Wife—Personal Injuries—Right to Sue.</p> <p>A married woman can recover in her own name damages for the pain and suffering caused by personal injuries. Bennett v. Bennett, 23 N. E. Rep. 17, followed..</p>

<p>Appeal from circuit court, Onandaga county.</p> <p>Action by Hiram B. Simmons against the Syracuse, Binghamton, New York & Oswego & Syracuse Railroad Benevolent Society, to recover weekly benefits for the period that he was disabled. Judgment for plaintiff. Defendant appeals.</p>

<p>1. Taxation—Assessment—Powers of Assessors.</p> <p>Under charter of the village of Little Palls, § 39, as amended by Laws 1873, o. 158, the village trustees, thereby constituted a board of assessment, whose duty it is to copy from the last assessment roll of the several towns which comprise the territory of the village the names and valuations of persons and property taxable in the village, are not bound to adopt the valuations made by the town assessors, but may, in the exercise of their judgment, increase 'such valuations for the purpose of village taxation.</p> <p>2. Same—Overvaluation—Evidence.</p> <p>The assessment will not be disturbed unless the party seeking to reduce it shows by clear and satisfactory evidence that the property was overvalued.</p> <p>8. Same—Assessment—Verification.</p> <p>The village trustees are not required by the charter, § 41, to verify their assessment in the manner prescribed for the town assessors, and the absence of such verification does not invalidate the assessment.</p> <p>4. Same—Immaterial Error.</p> <p>When the valuation is not made by the acre, a mistake as to the quantity of land included in the assessment does not affect the rights of the parties, and is immaterial.</p>

<p>Appeal from special term, Herkimer county.</p> <p>Petition by West Shore Railway Company to have an assessment of its property by the trustees of Little Palis reduced. Order made reducing the assessment. Defendants appeal. •</p>

Appeal .from circuit court, Oswego county. Action by Lory O. Band against the Borne, Watertown & Ogdensburg Bail-road Company, to recover wages for his service as conductor on defendant’s road. Verdict and judgment for plaintiff. Defendant appeals.

Action by Joseph Mullin, as receiver of William W. Herrick and Henry H. Ayers, against Humphrey Sisson and others. Plaintiff appeals from a judgment dismissing his complaint. Laws 1877, c. 466, as amended by Laws H. Y. 1888, c. 294, provides that, in an assignment for the benefit of creditors, the residence, kind of business carried on by the debtor at the time, the place where conducted, and, if in a city, the street and number, should be specifically stated.

<p>Reference—Appointment of Referee—Irrbgtolarities Waived.</p> <p>The substitution by the court, without notice, of the name of another person in the order appointing a referee who has resigned, is an irregularity for which the order may be vacated, but is waived by appearing before the referee without moving to vacate.</p>

<p>Action by Daniel Paxton and John B. Hanchett against Eliza Brogan and others, to restrain a proceeding to obtain revocation of the probate of the will of John Patterson, deceased, theretofore allowed, and for the probate of a a later will. Defendants demur to the complaint, on the grounds that there is a misjoinder of parties defendant, and that,the complaint does not state a cause of action. For former report, see 8 FT. Y. Su'pp. 872.</p> <p>Code Civil Proc. FT. Y. § 488, provides that “defendant may demur to the complaint when one of more of the following objections thereto appear upon the face thereof: * * * (5) That there is a misjoinder of- parties plaintiff; (6) that there is a defect of parties plaintiff or defendant.”</p>

At chambers. Action by Lauren C. Woodruff against the New York, Lake Erie & Western Railroad Company. Defendant moves to vacate certain orders granting allowances to plaintiff herein, and for counsel fees, made ex parte upon application of the plaintiff. The motion is made upon plaintiff’s papers,'and the papers, proceedings, and judgment rolls in several actions and proceedings between the parties hereto, and between plaintiff and the predecessors of defendant.

Appeál from jury term. Action by Owen Sweeney against the New York, New Haven & Hartford Bailroad Company for personal injuries sustained by plaintiff while in the employ of defendant as brakeman. The evidence went to show that the injuries were sustained in a collision caused by the breaking of a defective link connecting the tender of an engine with a freight-car. The defect was apparent on inspection.

<p>Action by George E. Newman against Harvey Ernst. Plaintiff moves for a new trial on the minutes.</p>

Action on a covenant in a lease by Thomas Russell against Michael Giblin. Plaintiff appeals from a judgment of the city court, general term, awarding him six cents damages. For former report, see 5 ÍT. Y. Supp. 545.

Action .by Nathalie E. Bavlies against the Philadelphia & Reading Coal & Iron Company. The court directed a verdict for plaintiff, and a motion for a new trial was overruled, from which defendant appeals.

<p>Appeal from city court, general term.</p> <p>Action by Thomas Coffey against Jeremiah C. Lyons. Judgment for plaintiff, and defendant appeals.</p>

Action by Clara Totten against Cassius H. Read for breach of promise of marriage. The complaint contained two counts. The first was for a breach of promise of marriage, aggravated by the alleged seduction of the plaintiff by the defendant, and by a further allegation that at the persuasion of the defendant she permitted an abortion to be performed upon her, which resulted in the ruin of her health and great physical injury.

On motion for reargument, or for leave to go to court of appeals. Action on contract by Moses M. Johnson against Herman F. Bindsell. Judgment for defendant. Plaintiff’s motion for reargument or leave to go to court of appeals denied. For former report, see 8 H. Y. Supp. 485.

<p>Appeal from eleventh district court.</p> <p>Action by William J. Boyle against Emory M. Van Tassel for commissions as broker. From a judgment in plaintiff’s favor, defendant appeals.</p>

<p>Mortgages—Rights of Mortgagee—Refunding Proceeds.</p> <p>Where a bona fide debt, secured by mortgage on the debtor’s property, has been paid by a sale of the property, the mortgagee cannot be required by other creditors to refund, because as to them the mortgage would have been adjudged void.</p>

<p>1. Executors and Administrators—Proceeding to Sell Decedent’s Land—Petition.</p> <p>Under Code Civil Proc. N. Y. § 2752, prescribing the contents of a petition by the creditors of an estate to subject testator’s lands to the payment of his debts, to be all the names of creditors and a description of all decedent’s real estate, a petition is not fatally defective because of an omission to describe one tract of land owned by testator, of which the petitioners neither knew, nor could have known by diligent inquiry.</p> <p>2. Same—Amendments.</p> <p>Names of creditors of the estate, not known at the time of filing the petition, may be subsequently added.</p> <p>8. Same—Liability of Administrators—Assessment on Bank Stock.</p> <p>The estate of an administrator, who in that capacity held stock in a national bank, and never had it transferred to himself, though he was the sole heir of intestate, is not liable to an assessment on it, under Rev. St. U. S. § 5152, providing that persons holding stock as administrators shall not be personally subject to any liability as stockholders.</p>

<p>1. Costs—Action to Abate Nuisance—Nonsuit.</p> <p>Where, in an action to abate a nuisance, plaintiffs are nonsuited, costs are not allowed as of course, but only on the award of the court.</p> <p>8. Same—Action Tried at Circuit—Powers oe Special Term.</p> <p>Code Civil Proc. N. Y. § 3230, provides that, in cases where costs are not allowable of course, the court, in its discretion, may award them to any party “upon rendering final judgment. ” Held th at, in an action to abate a nuisance tried at the circuit, a dismissal of the complaint without directing costs to be awarded to defendants is, in effect, a final judgment without costs; and the special term, presided over by another judge, has no power to allow the costs of the action to defendant, though the omission of the circuit court to allow them grew out of a misapprehension by the counsel and the court as to defendant’s right to costs of course.</p> <p>8. Same—Discretion oe Court.</p> <p>Where the circuit judge, in the exercise of his discretion, has not awarded costs to defendants on deciding the case in their favor, and defendants have entered judgment accordingly, the special term will not assume that the circuit judge was mistaken in the exercise of such discretion, and will not send the case back to him for his determination on the question of costs.</p>

<p>Appeal from circuit court, Jefferson county.</p> <p>Action for damages for personal injuries by Patrick Redmond against the Rome, Watertown & Ogdensburg Railroad Company. The complaint was dismissed, and plaintiff appeals.</p>

<p>Appeal from circuit court, Brie county.</p> <p>Action by George W. McIntyre against Luther H. Buell and another. Verdict and judgment for plaintiff, from which defendants appeal.</p>

<p>Evidence—Proof of Crime in Civil Suit.</p> <p>Where the defense in an action for services rendered is that plaintiff embezzled moneys of defendant, the embezzlement need not be shown beyond a reasonable doubt. A fair preponderance of evidence, having due regard to the presumption of innocence, is sufficient.</p>

<p>1. Taxation—Redemption bt Mortgagee—Mandamus.</p> <p>Laws N. Y. 1880, c. 91, § 12, provides that “all powers which are conferred upon the comptroller of this state in relation to * * * the effect of any such sale of land for taxes upon the lien of any mortgage thereon, the right of a mortgagee to redeem, the consequence of neglect to do so after notice, and the lien of the mortgagee for the amount paid on such redemption, * * * are hereby conferred, so far as relates to the county of Oneida, upon the treasurer thereof. ” Section 14 provides that all acts relating to Oneida county in conflict with this act are hereby repealed. Held, the general law of the state as to redemption by a'mortgagee is still applicable to Oneida county, the county treasurer being substituted for the state comptroller; and, where a mortgagee tendered to such treasurer the amount for which the mortgaged landswere sold, with interest, as provided by Laws N. Y. 1855, c. 427, § 82, it was the treasurer’s duty to receive the same, and issue his certificate therefor, and on refusal a writ of mandamus was properly issued to compel him thereto.</p> <p>2. Same—Tender.</p> <p>Section 8 of the special act provides that the payment shall be “for the use of the purchaser, his heirs and assigns. ” Held, a tender “for and in full redemption of said premises from sale for delinquent taxes in August, 1887, to Davis & Johnson, ” was sufficient</p> <p>3. Same—Receipt.</p> <p>When the tender was rejected by the treasurer on the sole ground that he had no right to receive the money or give the certificate, it was not invalid because a receipt or certificate was demanded.</p>

Suit by Isaac D. Garfield against Charles C. Blair. The verdict and judgment were for the plaintiff. A motion for a new trial was denied, and defendant appealed.

Action by Joseph H. Wilcox and others, partners, etc., against Lewis S. Joslin, for goods sold and delivered. There was a judgment for defendant on his counter-claim, and plaintiffs appeal from the judgments and an order denying a new trial on the minutes, and also from an order denying their motion for a new trial on the ground of newly-discovered evidence.

Action by Horace C. Parks and Amanda Tinker, as administrators, etc., of J. Lee Tinker, deceased, against Clarence Andrews, individually, and as administrator of Josiah Andrews, deceased, and others. The action is brought to collect, by foreclosure and sale, the amount due upon a land contract given on April 1, 1861, by J. Lee Tinker, plaintiffs’ intestate, to Josiah Andrews, defendants’ intestate, and one George Weyand.

Action by Warren Newton, as railroad commissioner of the town of Norwich, against Annie B. Manwarring, to foreclose a mortgage for $6,000 collateral to a bond executed November 15, 1882, by Miles Palmer Newton and wife, which mortgage covered 347 acres of land situate in the towns of New Berlin and Sherburne.

Action by David Wilber and D. Forest Wilber against Jacob Leonard. In their complaint the plaintiffs allege that on the 28th day of May, 1886, the defendant agreed to and did “sell and deliver to the plaintiffs at the depot inMaryland, 2T. Y., all the hops then in the hop-house of the defendant in the town of Maryland, FT. Y., being about forty-three bales, or 7,925 lbs., of hops; said hops to be delivered at the depot in Maryland, FT.

Action by Rosanna Murphy against the Rome, Watertown & Ogdensburg Railroad Company.

<p>Appeal from circuit court, Wyoming county.</p> <p>Action by Charles H. B. Perkins, administrator, etc., against the Buffalo, Rochester & Pittsburg Railroad Company. Judgment was given for plaintiff, and defendant appeals.</p>

Action by Lewis H. Clarke, as a tax-payer of the town of Sodus, Wayne county,'to require Andrew P. Sheldon, as treasurer of Wayne county, to purchase the bonds of the town issued to aid in the construction of the Sodus Point & Southern Bailroad and the Borne, Watertown & Ogdensburgh Bail-road.

' Suit by Louisa Carr against David C. Huff and others. The court below dismissed the complaint, from which plaintiff appealed;

Action by George L. Kingston, assignee, etc., against Harriet N. Koch, administratrix, etc. Judgment was given dismissing the complaint upon the merits, and plaintiff appeals.

Action by Isaac M. Adams against Charles M. Speelman. Plaintiff appeals from an order denying his motion for a new trial made on the minutes of the court.

Action by Henry Smith against Norman Sheridan. A judgment entered on a verdict in the justice’s court in favor of plaintiff was affirmed by the county court, and defendant appeals.

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

Exceptions from circuit court, Erie county. Action by Charles H. Arthur and others against Alfred P. Wright and others. The complaint was dismissed, and plaintiffs move for a new trial on exceptions, which motion is heard at the general term in the first instance.

Action by Anna Talcott and others against the city of Buffalo and others. Defendants appeal from an order overruling demurrers to the complaint. The demurrer of the city of Buffalo, and all of the defendants except Barnard, the comptroller, are upon the ground that the complaint does not state facts sufficient to constitute a cause of action, and that the common council of the city of Buffalo should have been made a party defendant.

<p>L Bale—When Title Passes.</p> <p>The owner of certain chattels agreed to “sell, assign, transfer, and set over unto" another all his right, title, and interest therein, in consideration of the purchaser’s agreement to pay certain notes due by the seller. The chattels were delivered to, and remained in possession of, the purchaser. The seller repeatedly declared, and once testified in supplementary proceedings against the purchaser, that the chattels belonged to the latter, and the purchaser’s financial reputation was good. Held, that title passed at once, and the sale was not conditioned on the purchaser’s payment of the notes, though, on sale of the chattels under execution against him, the seller claimed them.</p> <p>8. Trover and Conversion—Who mat Maintain.</p> <p>One who has sold and delivered a chattel, reserving the privilege of repurchasing it within a specified time at the same price, but who has done nothing towards regaining it, has not sufficient interest to enable him to maintain trover against a sheriff who has sold it under execution against him, on the ground that it is exempt.</p>

Action by Charles Kibler, as administrator, etc., and individually, against John Huver and others. From a judgment dismissing the complaint plaintiff appeals.

Proceeding by the people on the relation of James C. Fargo and others against James S. Murphy and others, assessors of the city of Buffalo, to reduce an assessment. From a judgment reducing the assessment, and from an order denying defendant’s motion to quash the writ of certiorari, defendants appeal.

<p>Appeal from Niagara county court.</p> <p>Action by Theodore Townsend against Thomas Tolhurst. From an order granted November 23, 1889, permitting plaintiff to cause an execution to be issued, defendant appeals.</p>

<p>Appeal from special term, Monroe county.</p> <p>Application of the Rochester Electric Railway Company to acquire the, lands of Jennie S. Wilkin, James A. Potter, Mary Tanner, Eliza Patterson, and William Patterson. The land-owners appeal.</p>

<p>Appeal from circuit court, Chautauqua county.</p> <p>Action by Frank T. Le Croy, a brakeman, against the New York, Lake Erie & Western Railroad Company, for personal injuries. Judgment for plaintiff. Defendant appeals.</p>

<p>Appeal from circuit court, Monroe county.</p> <p>Action by Lucy S. McGuire against Thomas M. Joslyn for damages sustained by falling down defendant’s stairway. Judgment for plaintiff. Defendant appeals.</p>

Action by Mary F. French against the administrators of the estate of William Ross to collect two judgments against decedent. The claims were disallowed, and plaintiff appeals.

Accounting by Christian J. Uhl and Charles' H. Hamel as executors of the will of Balthazar Albrecht, deceased. The exceptions to the referee’s report were overruled, and contestant appeals. For opinion of surrogate, see 4 K. Y. Supp. 462.

Action by William H. Peters, as receiver of the Exchange National Bank of Norfolk, Va., against Sarah Gibson Foster, to recover an assessment levied on defendant’s stock in the bank. A demurrer to the complaint was overruled, and defendant appeals.

<p>Appeal from special term, New York county.</p> <p>Action by Fannie Higgins and others against the Union Trust Company and others, to construe the will of Elizabeth J. Bryant, deceased. The complaint was dismissed, and plaintiffs appeal.</p>

A proceeding under Laws N. Y. 1880, c. 269, to reduce an excessive and unequal assessment. Appeal by defendants, the assessors, from that portion of the order awarding costs to the relator.

<p>L Municipal Corporations—Actions for Torts.</p> <p>Laws ÍT. Y. 1886, e. 572 § 1, providing that actions for personal injuries against municipal corporations having over 50,000 inhabitants shall be brought within one year after cause of action accrued; and that notice of the intention to bring an action must he served on the proper law-officer of the corporation within six months after right accrued, applies to the city of Buffalo, and is not in conflict with title 3, § 7, of its charter, providing that no action for unliquidated damages for wrong or injury shall he brought till 40 days after it has been presented to the common council for audit.</p> <p>& Same.</p> <p>. „ A compliance with the provisions of the charter by presenting a petition to the council describing the injury, and praying that the damages be allowed and paid, is not a substantial compliance with the terms of the statute; and the action cannot be maintained without such compliance.</p> <p>Macomber, J., dissenting.</p>

Action by Charles W. Clark against Sarah E. Sullivan. From an order denying a motion for relaxation of costs defendant appeals. For former report, see 8 1ST. Y. Supp. 565.

<p>1. Limitation of Actions—Judgment—Supplementary Proceedings.</p> <p>Supplementary proceedings on a judgment rendered by a justice of the peace are not an action within the meaning of Code Civil Proc. N. Y. § 382, subd. 7, which provides that an action on a judgment rendered in a court not of record must be commenced within six years after its rendition.</p> <p>2. Execution—Supplementary Proceedings.</p> <p>As Code Civil Proc. N. Y. § 2435, which provides for supplementary proceedings “at any time within 10 years after the return * * * of an execution” unsatisfied, does not require these proceedings to be founded on a court of record judgment, supplementary proceedings on a judgment of a justice of the peace may be maintained at any time within 10 years.</p> <p>8. Same—Estoppel.</p> <p>A judgment debtor, who, with his attorney, was present when a receiver was appointed in supplementary proceedings, and who made no objections thereto, cannot, two years afterwards, when his wife has become involved in litigation with the receiver, be heard to say that at the time of their institution the proceedings were barred by the statute of limitations.</p>

<p>1. Gaming—Action for Money Lost—Parol Evidence.</p> <p>In an action under 3 Bev. St. N. Y. (7th Ed.) p. 1962, § 9, providing that a person who shall pay any money on the event on any wager may recover the same of the winner, it appeared that plaintiff gave defendant written orders to buy wheat for him, and paid the money sued for as margin? to defendant, who agreed to carry the wheat until ordered to sell by plaintiff. Meld, that paroi evidence was admissible to show that the real understanding between the parties when the orders were given was that wheat should not he delivered, but that only the difference in the market price should be paid or received.</p> <p>8. Same—Sufficiency of Evidence.</p> <p>. Plaintiff testified that at the commencement of his dealings he asked defendant’s agent as to their course of business, and the latter replied that they had no wheat to deliver, and did not expect their customers to want any; that it was merely to adjust the difference between the price at the time of ordering wheat bought and ordering it sold. The agent denied that any such conversation took place. There was no proof that any wheat was bought or sold. Meld sufficient evidence to support a verdict for plaintiff, even against the evidence furnished by the form of the contract.</p> <p>8. Corporations—Ultra Vires.</p> <p>Defendant cannot repudiate the acts of its agent upon the ground that it is a corporation formed to do a lawful business, and therefore the unlawful dealings of its agent were ultra vires,</p>

Action by George Dintruff against the Rochester City & Brighton Bail-road Company. Judgment on verdict for plaintiff, defendant’s motion for new trial denied, and it appeals.

<p>1. Mortgages—Foreclosure—Defendants’ Resets as between Themselves.</p> <p>_ Code Civil Proc. N. Y. § 521, which permits a judgment to determine the ultimate rights of defendants as between themselves, applies only to those cases where the relief sought by defendants is based on facts involved in the litigation of plaintiff’s claim; and in foreclosure proceedings the mortgagor, who has conveyed the land to her co-defendants by a deed absolute on its face, will not be permitted to litigate with them the question whether the deed was intended merely as security for a debt, and thereby delay plaintiff in obtaining satisfaction of his mortgage.</p> <p>8. Costs—Extra Allowance—Discretion of Court.</p> <p>An extra allowance of costs under Code Civil Proc. N. Y. § 3253, which authorizes such an allowance in foreclosure proceedings in a sum not exceeding 2% per cent, of the amount due on the mortgage, nor the aggregate sum of $200, “in the discretion” of the court, will not he reviewed on appeal unless there has been a clear abuse of discretion.</p>

<p>Fraud—Pleading and Proof.</p> <p>In an action based on false representations by defendants, a verdict for plaintiffs was set aside on the ground that it was not sustained by the evidence, and the order was affirmed on appeal. On the second trial a verdict was directed for defendants. The evidence was as consistent with the innocence of defendants as with their guilt. Held, that the direction of a verdict would not be disturbed by the general term.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Granger A. Hollister and another against Philander Mott and others to foreclose a mechanic’s lien. Judgment for plaintiff, from which defendant Mott appeals.</p>

<p>Appeal from circuit court, Wyoming county.</p> <p>Action by Charles D. Thompson against Alexander E. McLean, "and others. Judgment was given for plaintiff, and defendants appeal.</p>

<p>Appeal—Review.</p> <p>•In an action by a vendor against the vendee for refusal to take goods in accordance with the contract of sale, a finding by the referee that, by reason of the failure of defendant to take certain goods, plaintiff was damaged in a certain sum, cannot be objected to on appeal on the ground that it fails to state the facts, where no case is made, and the evidence is not brought up.</p>

<p>Appeal from a judgment on report of referee.</p> <p>Action by James Becker against the New York, Lake Brie & Western Railroad Company. There was a judgment for plaintiff, and defendant appeals.</p>

<p>Attachment—Vacating.</p> <p>An affidavit for attachment, after averring the indebtedness of defendant to plaintiff, stated that affiant had learned from a neighbor of defendant that the latter had taken a considerable portion of the goods from his store, and packed them for shipment, and that they were not shipped in defendant’s name; that on the same day several judgments were entered against defendant, some of them being in favor of relatives; that the sheriff had informed affiant that defendant requested him to sell his property under such judgments without delay; and that defendant had refused to give affiant any information as to his affairs. The affidavit further alleged, upon information and belief, that the said judgments were not based upon any indebtedness, but were procured to be rendered for the purpose of defrauding creditors. Held, that an attachment granted on such affidavit would not be vacated, in the absence of counter-affidavits of defendant.</p>

<p>1. New Trial—Surprise.</p> <p>In an action by a brakeman for personal injuries sustained by his being crushed between two cars, from one of which plaintiff alleged that the bumper was gone, —which was denied by defendant,—a new trial will not be granted defendant on the ground of surprise because plaintiff adduces evidence to show that he was compressed within a space of six inches, and that his injuries are permanent and incurable ; as such evidence is within the issues of the case, and cannot be regarded as a surprise.</p> <p>8. Same—Newlt-Discovered Evidence.</p> <p>Affidavits by physicians that plaintiff could not possibly have lived had he been squeezed within a space of six inches, and affidavits that plaintiff had developed into an able-bodied man since the trial, are merely cumulative evidence, and are not sufficient basis for the granting of a new trial.</p>

Action by Francis X. Brennan, as executor of Andrew Brennan, against George W. Crouch and Henry H. Craig, to have a reassignment of an insurance policy on the life of decedent decreed. The complaint was dismissed on the merits, and plaintiff appeals.

<p>Appeal from circuit court, Chautauqua county.</p> <p>Action for libel by Emily J. Ward against Benjamin S. Deane, editor of the Morning News of Jamestown, N. Y. Judgment for plaintiff. Defendant appeals.</p>

Petition, by Margaret Gibbons to vacate an assessment for Lexington avenue, regulating, grading, curbing, etc., from One Hundred and Second street to Harlem river, confirmed June 29, 1887. The petition was denied, and petitioner appeals.

Action by Ann Farmer, as administratrix of Henry Fitzsimmons, deceased, against the Emigrant Industrial Savings Bank and Annie E. Devlin. There was a judgment for plaintiff, and defendant Devlin appeals.

Action by Abraham Rothschild against Clarence Whitman and others. Plaintiff appeals from an interlocutory judgment overruling his demurrer to defendants’ counter-claim.

Case submitted on agreed statement. Action by Joseph H. Beams, executor of Alexander Wing Fisher, against Ferdinand H. Mela, to enforce a contract of sale of certain realty, and to compel payment of the purchase money.

.Action by Fordyce L. Kellogg against the American Manufacturing & Supply Company, Limited. Judgment was entered on a verdict for defendant, and a motion was denied. Defendant appeals.

<p>Appeal from circuit court, New York county.</p> <p>Action for personal injuries by Minna Atkins against the Manhattan Railway Company. Judgment for plaintiff. Defendant appeals.</p>

Motion by James B. Chandler to vacate the satisfaction of judgment recovered by the Commercial Telegram Company against James D. Smith, as president of the New York Stock Exchange, and others, and for permission to issue an execution against the Gold & Stock Telegraph Company and the Western Union Telegraph Company to collect the amount of the judgment, and enforce his lien for services as attorney for plaintiff in the litigation. Motion denied. Appeal by James E. Chandler.

Application by the city of Rochester to acquire land of John W. Warrant. The said Warrant, respondent, now moves to vacate an order by which commissioners were appointed to make an appraisement of his land.

Action by Michael Gernsheim, Eugene A. Loeb, and Albert Loeb against Frederic P. Olcott, the Houston & Texas Central Railway Company, Collins P. Huntington, and others, to reduce an assessment levied on the stockholders, and to enjoin defendants from disposing of any stock of the new or reorganized Houston & Texas Central Railway Company.

<p>Municipal Corporations—Dismissal of Policeman.</p> <p>Delator was dismissed from the police force on the charge of being intoxicated at his residence. A physician who attended him at the time in question testified that relator told him that he had been drinking a little too much, and that relator’s breath smelt strongly of alcohol. But relator testified that he told the physician that he had taken brandy and oil, and the testimony of several other witnesses was to the effect that he had taken brandy and oil for cramps. There was no evidence that he was in the habit of drinking liquor. Held, that the dismissal could not be sustained.</p>

Suit by Ellen Paul, individually and as executrix of Theodore R. Paul, deceased, against Augustus P. Stevens and Julia A. Van Da Linda. Verdict and judgment against defendant Stevens, from which he appeals.

Suit by William A. Boss and the Norwich Lock Manufacturing Company against John H. Butler, John C. Constant, and Charles W. Butler, assignee of the property and effects of John H. Butler and John C. Constant. Appeal by Charles W. Butler from an order adjudging him guilty of contempt.

Suit by Richard J. Morrison, as public administrator of the goods, chattels, and credits of Joseph E. Miller, deceased, against the Mutual Life Insurance Company of the city of New York. Trial by the court without a jury, and judgment for defendant, from which plaintiff appeals.

Action by James W. Cooke and Lydia Cooke against the Underhill Manufacturing Company. Judgment on verdict for plaintiffs, defendant’s motion for a new trial denied, and it appeals.

Action by George P. Kinne against Jacob Meyer for alienating the affections of plaintiff’s wife. Plaintiff obtained judgment by default. Defendant moved to vacate the judgment because he had never been served with process. From an order denying his motion, defendant appeals.

Action by Morris M. Hirsh, as sole survivor, etc., against Ferdinand van der Perren. Defendant appeals from an order denying his motion to vacate an order of arrest.

Appeals from special term, New York county. Action by Robert Harland and others against Thomas Howard.

Action by Laura F. Bradhurst against Augusta O. Field and others, to construe the will of Thomas O. P. Bradhurst, of which defendants were the executors. From an order extending the time within which plaintiff should be required to elect whether she should take dower in the estate of the testator or accept a provision made in lieu thereof defendants appeal.

<p>Appeal from special term, New York county.</p> <p>Action by Melville Stephens against Robert L. Humphreys, impleaded. From an order denying a motion for an order settling issues to be tried by a jury, defendant appeals.</p>

<p>Appeal from circuit court, New York county.</p> <p>Action by Fannie Rosenthal to recover from Joseph Rosenthal money deposited with him for investment which he failed to make. Petition averred demand. Motion to make complaint more definite and certain by inserting date of demand granted. Plaintiff appeals.</p>

Motion by Sanford S. Small to continue an injunction against the directors of the Minneapolis Electro-Matrix Company, restraining them from transferring its assets, property, and business to another corporation. Motion denied. Plaintiff appeals.

Action by Philip W. Smith against Harry Fitchett. There was a judgment for the plaintiff, and the defendant appeals. For former report, see 2 ST. Y. Supp. 261.

; Action by Mary S. Davis against Jacob D. Wood and others, devisees of Jacob H. Davis, deceased. There was a. judgment for defendants, and the plaintiff appeals.

Action by Solon Humphreys and Edwin D. Morgan against the New York, Lake Erie & Western Railroad Company. From an order denying a motion to strike out certain allegations of the complaint, defendant appeals.

<p>Appeal from circuit court, New York county.</p> <p>Action by Mary Peard against John D. Karst and John D. Karst, Jr. Judgment was given dismissing the complaint, and plaintiff appeals.</p>

Action by Augusta C. Genet against the Delaware & Hudson Canal Company for alleged .negligent injuries to property in Pennsylvania. On defendant’s demurrer, the complaint was dismissed for lack of jurisdiction. See 8 N. Y. Supp. 822. Defendant then moved for ah extra allowance of costs on the ground that the ease was difficult and extraordinary. From an order awarding defendant $500 additional costs plaintiff appeals.

Exceptions from circuit court, New York county. Action by James C. French against Samuel T. Dauchy and others. Judgment was given for plaintiff, and defendants move for a new trial on exceptions taken at the trial, and ordered to be heard at the general term in the first instance.

<p>Appeal from special term, New York county.</p> <p>Action by the Apollinaris Company, Limited, against George W. Venable and Moses Heyman for an infringement of a trade-mark. Defendants moved for a commission to examine witnesses residing at Cologne, Germany. From an order granting the motion, plaintiffs appeal.</p>

.Action by Appleton Sturgis against the Crescent Jute Manufacturing Company. From an order denying a motion to set aside the service of summons defendant appeals.

<p>Landlord and Tenant—Covenants or Lease.</p> <p>Under the covenants of a lease providing that the lessee shall return the premises in good repair, injury by the elements excepted, and that he shall comply with all orders of the city health department at his own expense, he must remove the carcasses of horses destroyed by fire in the building during the term, and the landlord is bound to remove the délyris to enable the lessee to get at the carcasses.</p>

Action by Warren Foote and F. Seeley Foote against Bichard D. Stryker and Anna M. Stryker to set aside, as fraudulent and void as to creditors, two assignments of mortgages made by Bichard D. Stryker to his daughter and co-defendant, Anna M. Stryker,—one made April 20, 1875, which assigned six several bonds and mortgages, aggregating $13,500, in consideration of $1; and the second assignment, made January 81, 1879, of one bond and mortgage, made by Agnes Haner and husband to…

At chambers. Action by Franziska Harris, a non-resident of the state of New York, against the Mutual Life Insurance Company on an insurance policy issued to Mark Harris for the benefit of his wife, if living, otherwise for the benefit of his infant son. After plaintiff had obtained an order permitting her to sue in forma pauperis, she was required to give security for costs. She afterwards procured an order vacating the order requiring security for costs.

•Appeal from court of oyer and terminer, FTew York county. Indictment against James A. Flack, Joseph Meeks, and William L. Flack for a conspiracy to obtain a divorce by unlawful means. From a judgment of conviction the defendants James A. Flack and William L. Flack appeal.

Action by George F. Bassett and others against Frank Leslie and Alcock & Go. Demurrer to the bill was sustained, and plaintiffs appeal. The opinion of the court below, referred to, is as follows; “The complaint alleges a sale of the merchandise to plaintiffs, not to the American Exchange.

Exceptions from circuit court, New York county. Action by William Jenkins, an employe, against the Mahopac Iron-Ore Company for personal injuries. Plaintiff nonsuited, and excepts.

Action by Sarah F. Carpenter against William T. Carpenter, the respondent, and Ann Augusta Carpenter. Plaintiff and respondent are husband and wife, and prior to August, 1886, they resided at Glen Cove, in Queens county, the respondent then being engaged in the occupation of farming upon the premises which are the subject of the action, being a farm of 52 acres, with a dwelling-house and out-buildings thereon.

Action by Albon P. Man and William Man, as trustees, etc., against Mary C. Elkins and Georgiana Elkins individually, and as administratrices with the will annexed of George B. Elkins, deceased; Fanny Elkins, Ida Elkins, Ambrose Snow, Ann S. Young, William H. Young, and Charles E. Bogert, as surviving executors of the will of John S. Young, deceased; and George Wallis, Edward J. O’Flynn, and William M. Evarts,—to foreclose a mortgage.

Action by Leopold Michel against Max Halheimer, Esther Halheimer, and ' Eachel Michel for a partition of lands in Brooklyn, upon an allegation that plaintiff and defendant Max Halheimer were tenants in common in equal shares.

Proceedings to require an accounting by the surviving executors, and the executors of deceased executors, of the will of Frederick D. Hodgman, deceased.

<p>1. Husband and Wife—Action against Wife.</p> <p>Coverture is a matter of defense only, and a default judgment against a married woman as Indorser of a note is valid though the complaint does not aver that sha charged her separate estate.</p> <p>2. Judgment—Waiver.</p> <p>On a motion for leave to issue execution upon a default judgment against a married woman, she, by leave of court, filed an answer, pleading coverture, whereupon plaintiff was required either to submit to a dismissal or amend his complaint. He elected to amend, and afterwards prosecuted the case to judgment. Meld, that this did not constitute a waiver of the original judgment, and it still remained in force.</p> <p>8. Execution—Issuance—Huno pro Tunc.</p> <p>After the return unsatisfied of an execution upon the new judgment, an order was made allowing plaintiff to issue exeeutiomiponthe original judgment as of the date of his first motion therefor. Meld that, under Code Civil Proo. § 1877, subd. 2, which provides that after five years execution may issue by leave of the court, it was proper to allow such execution, but improper to grant it nunc pro timo, and a new execution may be issued as of the present date.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by the Post-Express Printing Company against Stephen Coursey. The judgment was in favor of the plaintiff, from which defendant appealed.</p>

Action by the city of Rochester against Benjamin Simpson, in the municipal court. The judgment was for the defendant, which was affirmed by the county court. Plaintiff appealed.

.Appeal from special term, Monroe county. Action by Emmett Stevens against Marshall J. Ayers, administrator, etc. From an order denying defendant’s motion to confirm the report of a referee, and granting plaintiff’s motion for a new trial, defendant appeals.

<p>Insurance—Mutual Benefit Associations.</p> <p>A by-law of defendant, that if a member is in arrears when taken sick he shall not be entitled, by paying up such arrearages, to benefits during such sickness, is not waived by the acceptance of arrearages from a member.</p>

<p>Appeal from Monroe county court.</p> <p>Action by Rachel Lipski against Frederick Peth. Judgment was given for plaintiff, and defendant appeals.</p>

Action by Fred Beuerlein against Benjamin F. Hodges. From an order dismissing defendant’s appeal from a judgment of the justice’s court, on the ground that it was not taken in time, defendant appeals.

<p>Appeal from Monroe county court.</p> <p>Action by Edward M. Redmond against Joseph G. Tone. Judgment was given for plaintiff, and defendant appeals.</p>

<p>Appeal from special term, Livingstone county.</p> <p>Action by Webster B. Van ífuys against Josiah E. Fitsworth and others upon a partnership account. After the case was partially tried, an agreement for a settlement was made, and a stipulation thereof entered on the minutes of the referee. Subsequently, on the application of the plaintiff, an order was made setting aside the agreement. From this order defendant Fitsworth appeals.</p>

Action by George Henry against the New York, Lake Erie & Western Railroad Company, for injuries sustained while riding on a train of defendant as a passenger. Judgment on a verdict for plaintiff, and an order denying a motion for a new trial on the minutes, were entered, and defendant appeals.

Action by Pliny T. Sexton against Henry Breese. Verdict was rendered for defendant, and plaintiff moves for a new trial on a case and exceptions.

Proceedings by the people, on the relation of John W. Goodwin, against James J. Martin and others, to inquire into the cause of the removal of the relator from the police force.

Action by George W. Coonley for damages against the city of Albany. Appeal by plaintiff from a judgment sustaining a demurrer to his petition.

Motion by John W. Foulks to vacate or modify certain decrees of the surrogate confirming the report of the referee to the effect that the accounts of the executors of the will of William Foulks, deceased, were correct, and deciding that the referee did not have jurisdiction to try certain objections made to the accounts, and ordering distribution of the estate in pursuance of the will. For action by John W. Foulks against the executors for a legacy, see 6 N. Y. Supp. 112.

<p>Petition by David F. Riemann for habeas corpus to the German Roman Catholic Orphan Asylum and Andrew Holzer to produce the body of Mary Holzer, an infant.</p>

Ejectment by Edward Roberts against August Baumgarten and others. The cause was tried by the court, a jury having been waived, and judgment was given for plaintiff. Defendant appealed to the general term, where the judgment was reversed, (51 N. Y. Super.

<p>Appeal from trial term.</p> <p>Action by William S. Davidson against John B. Cornell and Henry Cornell. Judgment was given for plaintiff, and defendants appeal.</p>

<p>Appeal from trial term.</p> <p>Action by the Reliable Steam-Power Company against the Solidarity Watch-Case Company for rent. The court directed a verdict for plaintiff, from which, and the judgment thereon, defendant appeals.</p>

Action by Susan Duer against the Twelfth Street Reformed Church of Brooklyn. A verdict'was directed for the defendant, from which, and from the judgment thereon, the plaintiff appeals.

<p>Appeal from trial term.</p> <p>Action by Bettie Schick, an infant, against the Brooklyn City Bailroad Company. Verdict and judgment for plaintiff, from which defendant appeals.</p>

Action for rent by Richard Lathers against Jacob H. Hunt. Defendant had a judgment for costs, and plaintiff appeals. For former report, see 9 H. Y. Supp. 494.

<p>Appeal from equity term.</p> <p>Action by John H. Springer against Julius Bien and another. From an interlocutory judgment in favor of plaintiff the defendants appeal.</p>

Action by Walter Myers against Bobert J. Dean. Verdict for plaintiff. A motion for a new trial was denied, and defendant appealed.

Action by Leo Baumann and another against John G. Gilmour for inj uries to plaintiffs’ horse and wagon in a collision with defendant’s team. There was a judgment in plaintiff’s favor, and defendant appeals.

<p>Appeal from fifth district court.</p> <p>Action by Otto Wachtershauser against Sydney Smith for breach of contract of employment. Judgment for plaintiff. Defendant appeals.</p>

Action by Charles Lewis and others against James A. Flack, sheriff, to recover possession o'f personal property fraudulently obtained from plaintiffs by the vendee, and levied on by defendant as sheriff. Judgment for defendant. Plaintiffs appeal.

Action for rent by Patrick Gallagher against Charles Reilly. J udgment for defendant. Plaintiff appeals. Code Civil Proc. H. Y. if 2253, provides that the issuing of a warrant for the removal of a tenant cancels the agreement for the use of the premises, and annuls the relation of landlord and tenant, except that it does not prevent the landlord from recovering rent due at the time the precept was issued, or for the use and occupation till the time the warrant was issued.

<p>Appeal from fourth district court.</p> <p>Action by Samuel Lewis and others against Casper Iba for work done. Judgment for plaintiffs. Defendant appeals.</p>

<p>Appeal from tenth district court.</p> <p>Action by Charles Edel against Alexander C. McCone. Judgment was rendered dismissing the complaint, and plaintiff appeals.</p>

<p>Evidence—Parol to Affect Writing.</p> <p>Tn an action to recover the value of certain carpets, gas fixtures, etc., alleged to have been conveyed to plaintiff with a house, but which were not referred to in the written contract of sale, evidence of conversations had before the signing of the contract concerning such articles is .inadmissible.</p>

Action by Jacob Dirringer against Daniel Moynihan for wages alleged to have been earned by plaintiff while working as brick-layer on defendant’s building. Judgment was given for plaintiff, and defendant appeals.

<p>Master and Servant—Discharge—Quantum Meruit.</p> <p>An engineer, employed by the month, who has been discharged for negligence after working nine days, and who has refused a tender of half a month’s wages for his services, cannot recover for the services rendered on a quantum meruit.</p>

<p>1. Sales under Power in Mortgage—Secret Agreement.</p> <p>At a sale of property under a power contained in a mortgage, defendant became the purchaser. His bid of $325 was the highest offered, no one objected to the price at which the property was sold, and it did not appear that there was any “puffing.” The property was actually worth more than defendant’s bid. Held, that he could not object to the regularity of the sale because of a secret agreement between him and the mortgagee by which he was to get the property for $325, no matter what any one else bid.</p> <p>8. Same—Resale.</p> <p>Defendant having refused to complete his purchase, and told the mortgagee to sell the property to some one else, was informed that he would be liable for any loss on a resale. The property was then readvertised once, and sold without further notice to defendant. Held, that the verdict of the jury that defendant had sufficient notice of the resale was conclusive, no fraud or bias being shown.</p>

<p>Appeal from tenth district court.</p> <p>Action by Pauline H. Sehnauffer against Louis Catterbury and others. Judgment was given for plaintiff, and defendants appeal.</p>

Action by Samuel Goldberg against William Wolff, for the alleged conversion of money left with defendant to be sent to plaintiff’s sister. The only evidence of a conversion was the testimony of plaintiff that he had received a letter from the sister saying that she had not received the money. Judgment was given for plaintiff, and defendant appeals.

• Action by Patrick Mitchell, as sole surviving partner of the late firm of P. & .J. Mitchell, against Robert J. Cochran and Clara, his wife, to foreclose a mortgage given by defendants to the firm for $260. The execution of the mortgage and bond accompanying it was not contested, but the answer alleged that it was given without consideration, and also payment. The referee found that there was no consideration for either bond or mortgage, and plaintiff appeals.

<p>Appeal from judgment on report of referee.</p> <p>Action by James B. McComb against the Barcelona Apartment Association and others. Judgment for plaintiff, and defendants appeal.</p>

At chambers. Action by Harry McBride and Charles F. Droste, partners, doing business as produce commission merchants, under the firm name of McBride & Co., against Patrick T. Langan, George E. de le Bee, and Joseph P. Langan, partners under the firm name of P. T. Langan & Co., for the price of goods sold and delivered by plaintiffs to defendants.

<p>Appeals from judgments on report of referee.</p>

At chambers. Action by Harry McBride and Charles F. Droste, partners under the firm name of McBride & Co., against Patrick T. Langan and others, partners under firm name of P. T. Langan & Co. A motion having been made to dismiss the complaint, in that the averment that defendants “ were guilty of a fraud in contracting or incurring the liability” did not state sufficient facts, plaintiff moves for leave to amend. For motion to vacate order of arrest, see ante, 552.

<p>1. Municipal Corporations—Deposit of City Funds—Powers of Chamberlain.</p> <p>Laws N. Y. 1866, c. 623, (an act to regulate the deposit by the_ chamberlain of New York city and county money,) provides that the banks in which the money is deposited shall proportionately pay the rent of the office of chamberlain and the salaries of his clerks and deputy, but says nothing as to the matter of interest. Held, that the chamberlain could stipulate for interest on deposits.</p> <p>8. Same—Interest.</p> <p>From the passage of the act until November, 1871, defendant bank regularly paid to the chamberlain 4 per cent, on deposits. It thereafter continued to pay its proportion of the expenses of the chamberlain’s office, but paid no interest, for the reason that the city comptroller denied the chamberlain’s authority to collect it, and directed the bank to add it as a credit to the deposits. Defendant’s counsel advised it not to make the payments or credits, but to send monthly statements to the comptroller and chamberlain of the interest due. A communication of the comptroller to defendant was referred by the directors of the latter to its president, wno had become the chamberlain, who, in a letter to the comptroller, said the interest was the result of a contract between the chamberlain and the bank. No action was taken by the stockholders or directors denying the existence of an agreement to pay interest or defendant’s liability. Held, that there was an agreement to pay interest, and that, as it was not illegal, defendant could not, after having the benefit of the deposits, question the chamberlain’s authority to make the agreement.</p> <p>8. Appeal—Review—Objections not Raised Below.</p> <p>The evidence consisted of a stipulated statement of facts, and it was stipulated that plain tiS gave prima facie evidence of these facts, and that defendant objected to parts thereof as incompetent and irrelevant, and that in case of defendant’s taking an appeal the record should be so framed as to preserve all its rights of objection and exception. No objections were brought to the court’s attention on the trial. Moreover, proof of defendant’s liability was not dependent on the objectionable evidence. Held, that the judgment would not be reversed by reason of the admission of this evidence.</p>

Action by the people, on the relation of George W. Sayre, to review the action of John McClave and others, police commissioners of the city of New York, in dismissing the relator from the police force.

Proceedings by the people ex rel. Thomas F. Manning against John MoClave and others, constituting the board of police commissioners of the police department of the city of New York. Relator was dismissed from the police force on a charge of having failed to arrest a man charged with a criminal offense, and to report bis absence from his post, as required by the rules of the department.

<p>L Fraudulent Conveyances—Sufficiency of Evidence.</p> <p>That a conveyance for an expressed valuable and adequate consideration was made two days before the grantor executed a general assignment for the benefit of creditors, that she on the same day conveyed other property to third persons, and that, several months before the assignment, she gave notes aggregating a large sum, constitutes no evidence of fraud on the part of the grantee.</p> <p>2. Same—Declarations of Grantor.</p> <p>In a suit to set aside a conveyance as fraudulent, evidence as to the acts and declarations of the grantor after the execution of the deed was properly excluded, as against the grantee, when there was no proof of a conspiracy between them, and no evidence that the grantor was still in possession at the time.</p> <p>8. Trial—Findings op Fact.</p> <p>The decision of the court in an equity cause which is tried without a jury, that, upon the whole evidence plaintiff fails to make out a case, and its judgment dismissing the complaint, constitute substantially a finding of the facts.</p>

<p>Appeal from circuit court, Erie county.</p> <p>Action by Chauncey H. King against the city of Buffalo. Judgment was given for plaintiff, and defendant appeals.</p>

Action by Roxanna H.‘ Lawrence as executrix, and George Sherman as executor, of the will of Judson W. Sherman, deceased, against Walter S. Church. Judgment was given for plaintiffs, and defendant appeals.

Action by Anton Weisman against the city of Buffalo. From a judgment for defendant entered on the verdict of a jury directed by the court, plaintiff appeals.

<p>Appeal from special term, Brie county.</p> <p>Action by Ebenezer S. Cady against the Springville Water-Works Company. From a judgment for plaintiff, defendant appeals.</p>

Action by Andrew Totten against the New York, Lake Erie & Western Railroad Company, for the loss of a horse and the injury to a wagon occasioned by a collision with a train of the defendant at a highway crossing. From a judgment for plaintiff, defendant appeals.

Action by Louis Windmuller and another against Henry W. Lovejoy and others. Judgment was given for plaintiffs, and defendants appeal.

Action by Joseph Larocque against Willis C. Harvey. A judgment of a justice of the peace in favor of plaintiff was affirmed by the county court, and defendant appeals. The defendant did not appear before the justice upon the return-day of the summons. The justice of the peace resided, and had his office, in the town of Malone, and the summons was returnable there. Both the plaintiff and the defendants were at the time residents of the town of Waverly, in Franklin county.

Ejectment by Sarah Jane Burke and Mary Frances Burke against William H. Jackson. There was a verdict for plaintiff; and from the judgment thereon, and an order denying a new trial on the judge’s minutes, defendant appeals.

Action by Antoinette Macauley against Robert H. Smith and others. From a judgment for defendants plaintiff appeals.

<p>1. Burden of Proof—Payment.</p> <p>Where, in an action upon a contract for building a house, plaintiff shows performance, and defendant thereupon testifies that he has paid the amount due, the burden of proving that something is still due is on plaintiff.</p> <p>S. Powers of Referee—Amendment.</p> <p>A referee has power to allow amendment of pleadings.</p>

Replevin by Hora Button against William Lusk. The action was originally commenced in justice’s court, and taken by appeal to the county court, where plaintiff’s complaint was dismissed on the ground that it did not state a cause of action. Plaintiff appeals.

In the matter of the application of August W. Schmitt and the Order of the International Fraternal Alliance for a peremptory writ of mandamus to compel Robert A. Maxwell, as superintendent of insurance, to issue a final certificate entitling the Order of the International Fraternal Alliance to become a body politic and corporate. From an order denying the writ the applicants appeal.

<p>Appeal from circuit court, Saratoga county.</p> <p>Action by John Heavey against the Hudson River Water-Power & Paper Company. The action was to recover for injuries sustained by the plaintiff, an employe of defendant, by falling into a vat of hot liquor while he was engaged in his employment. The plaintiff charges that the defendant neglected to assign him to a safe place of labor, and to furnish him with proper appliances, and that he sustained his injuries in consequence of this neglect of defendant. On the 31st day of March, 1885, the plaintiff, then 15 years of age, was engaged in defendant’s paper pulp manufactory. His duty was to guide, by pushing with a wooden pole, which he held in his hands, an iron pipe eight feet long and seven inches in diameter, which, moving horizontally upon a joint over a series of vats, discharged hot liquor into them, successively, as the plaintiff pushed it, so that its orifice of discharge rested above whichever vat he needed to supply with the liquor. This iron pipe, movable horizontally upon its hinge, was very heavy. It was about two feet above the level of the top of the vats. Its discharging end curved downwards. The plaintiff pushed it from vat to vat by placing the end of his wooden pole against a flat flange or band upon the end of the pipe, resting that end of the pole upon a hook or iron loop or rest which was attached to the end of the pipe, and then pushing upon the pole with the whole weight of his body. While pushing this pipe, he had to stand upon other iron pipes which lay upon the top of the vats, near one side of them. There were nine vats, standing side by side, in the pit-room. The center vat received the liquor from the pipes which lay upon the top of the adjacent vats. From the center vat the liquor was distributed through two pipes—one on the right, and the other on the left—to the vats upon either side. There were four vats on each side of the center vats. These vats were each twelve feet by eight, and six feet deep. The movable pipe in question was the terminal part of the pipe'leading from the central vat. The vats were uncovered, except by the pipes leading to the central vat. While the plaintiff was standing upon these pipes, pushing the movable pipe, his pole slipped from the flange, or end of the movable pipe, causing him to lose his balance, and fall forward into the vat over which he stood. He was soon extricated, bqt sustained serious injury. The end of the pole'placed against the movable pipe had become soft or spongy by use and saturated in the liquors. Upon the trial, its slipping was attributed to that cause. While it does not clearly appear from the evidence, it is probable that the end of the pole rested in the iron hook or loop, and for some reason the force employed in pushing the pole raised it upward out of its rest, and thus it slipped. The top of the vats was about a foot above the floor. The plaintiff had been engaged in this employment six weeks. He had had no previous experience. He was doing his work as he had been instructed by the foreman to do it. Before the plaintiff was employed, a rope had been used to pull the movable pipe from vat to vat. Why this method was abandoned, does not appear. The vats had also been more effectually covered. The trial court granted a nonsuit because the plaintiff assumed the known or apparent risks of the business, and he must have known better than any one else that the end of his stick had become soft and spongy, and therefore he knew better than any one else that it was less fit for use. Plaintiff appeals.</p>

Application by Cyrus H. Ballou for a writ of mandamus to John D. Wendell, county judge of Montgomery county. Relator appeals from an order refusing to submit to the jury any of the issues of fact joined by the alternative writ, and from an order dismissing the proceeding with costs.

Action by the people of the state of New York against John Snaith, Charles B. Andrews, and Timothy J. Sullivan. Defendants appeal from an order denying a motion to vacate an order of arrest.

<p>Appeal from court of sessions, Ulster county.</p> <p>Indictment of Daniel Maxon for rape. He was convicted and sentenced, and now appeals.</p>

<p>1. Municipal Corporations—Defective Streets—Personal Injuries.</p> <p>In an action against a city for personal injuries, evidence that plaintiff fell in a hole in the sidewalk, which had caved on the side of a yard eight feet below its level, is sufficient to go to the jury on the question of defendant’s negligence.</p> <p>2. Same—Evidence.</p> <p>The quarterly bill of the city hospital against the city, showing when plaintiff went to and left the hospital, is the mere statement of the hospital authorities, and is not evidence against plaintiff.</p>

Action by Mary Delaney, as administratrix of Daniel Delaney, against Jonas S. Heartt, George W. Sweet, and Fred W. Sweet, for the wrongful death of her husband, who was killed in defendants’ foundry. Plaintiff appeals from nonsuit.

Action by Lemon Thomson against John O. Poor and others on a sealed contract for the sale of bark to be peeled from plaintiff's trees by defendants at the rate of 1,000 cords a year. Judgment for defendants. Plaintiff appeals.

Action by George W. Eighme against the Rome, Watertown & Ogdensburgh Railroad Company. Verdict and judgment for the plaintiff, and a new trial denied. Defendant appeals.

<p>Appeal from circuit court, Jefferson county.</p> <p>Action by Winfield E. Bossout against the Rome, Watertown & Ogdensburgh Railroad Company. From a judgment entered on an order dissmissing the complainant plaintiff appeals.</p>

Proceeding by mandamus at the relation of the Mount Magdalen School of Industry to compel Thomas Dickson, as treasurer of Rensselaer county, to pay relator’s bill, audited by the-board of supervisors, for the maintenance of certain girls committed to it by committing magistrates. Peremptory writ awarded. The treasurer appeals.

Action, by George O. Simonds against his wife, Soudie M. Simonds, for a divorce on the ground of adultery. Cross-bill by defendant on the same ground. Defendant filed motion for alimony and counsel, which was denied, with leave to renew. On second motion an order was made refusing alimony, but allowing $150 for counsel and expense. Thereupon another motion for alimony, support, and additional allowance was granted, and plaintiff appeals.

Action by Herbert M. Taylor against the town of Constable for injuries sustained by the falling.of a defective bridge. . A nonsuit was granted, and plaintiff appeals.

Action by William Strawbridge and others against George L. Yandenburgh, to recover back an overpayment for cabbages delivered plaintiffs by defendant. Judgment for plaintiffs. Defendant appeals.

Action by Maggie Tyrrell against James York to recover damages for the taking of personal property. Judgment for plaintiff. Defendant appeals. For former report see 8 if. Y. Supp. 939.

Application by Charles W. Dater and another to vacate an attachment levied on their property at the suit of James Thompson and others. Application denied. Defendants appeal.

<p>Appeal from Albany county court.</p> <p>Action by John Keenholts against Walter S. Church to recover a sum overpaid defendant in a settlement. Judgment for plaintiff. Defendant appeals.</p>

<p>L Confession of Judgment.</p> <p>Code Civil Proo. N. Y. § 2864, giving jurisdiction to justices of the peace to. enter confessions of judgments, does not confer authority to confess for a contingent liability. Section 3011 provides that, on the confession of judgment before a justice, there must he an affidavit stating that the defendant is honestly indebted to plaintiff in the sum specified, over and above all just demands which defendant has against plaintiff. Held, that a justice of the peace had no authority to enter a confession of judgment in favor of a surety on certain notes against the principal maker, where the surety had not paid the notes at the time of the entry of judgment, although before such entry he had agreed with the principal to make such payment.</p> <p>B. Same.</p> <p>The judgments being based principally on such notes, they were not valid as to certain minor items, covered by the judgments, which were actually due at the time confession was made.</p>

Action by William Gould, Jr., against Spencer Trask and others for the conversion of certain stocks held by defendants as brokers. Judgment for defendants on the report of a referee. Plaintiff appeals.

Appeal.from judgment on report of referee. Action by Adelbert W. Boynton against Jane Laddy, as administratrix with the will annexed of the estate of Alpheus Wilkins, deceased, to recover for services performed and moneys expended in probating the will. The will provided that all expenses of administration should be charged upon, and paid out of, the said estate, both real and personal. Code Civil Proc.

<p>Municipal Corporations—Defective Streets.</p> <p>The defendant village constructed, along-side of a highway bridge over a stream, a sidewalk bridge, about three inches lower than the highway bridge, but otherwise with no line of demarkation between them. Plaintiff drove lengthwise upon the sidewalk, in front of a store close to the stream, to receive a load, and then continued to drive along the sidewalk onto the sidewalk bridge, which gave way. injuring him. Plaintiff had full knowledge as to where he was driving. Pen. Code íf. Y. 8 652, makes it a misdemeanor to willfully, and without authority, drive “along upon” a sidewalk, and defendant had established a penalty for the offense. Held that, though it was more convenient for plaintiff to drive as he did, and though others, to plaintiff’s knowledge, had sometimes driven upon the sidewalk bridge, he was not justified in going upon such bridge, and a judgment for him could not be sustained.</p>

At chambers. Action by Bertrand D. Depierris against Jacob Mattern, that defendant be perpetually enjoined from using the building Ho. 215 West Fifty-Third street, in the city of New York, or the extension to be erected thereto, for a wagon shop, paint shop, or forge. Plaintiff moves for an injunction pendente lite.

Action for limited divorce. Plaintiff obtained a decree directing defendant to pay her certain alimony, attorney’s fees, and costs; and her attorneys filed an affidavit alleging that they had received no compensation for their services, but had expended large sums for plaintiff in carrying on the suit, and asked that defendant be punished for contempt in failing to make the payments directed by the court.

Action by Henry J. Goodwin against Stevenson Burke. From a judgment for plaintiff, and from an order denying motion for a new trial on the minutes, also from an order denying motion for a new trial on the ground of newly-discovered evidence, defendant appeals.

<p>Appeal from court of general sessions, New York county.</p> <p>John Fitzpatrick was convicted of the crime of kidnapping, and appeals.</p>

<p>Appeal from circuit court, New York county.</p> <p>Action by Agnes Ronald against the Mutual Reserve Life Fund Association. From a judgment entered on dismissal of complaint at close of plaintiff’s case, (7 N. Y. Supp. 152,) plaintiff appeals.</p>

Action by Henry Winthrop Gray, as receiver of the North River Sugar Refining Company, against De Castro & Donner Sugar Refining Company and others. From an order of March 7, 1890, granting plaintiff a temporary injunction, John E. Searles, Jr., one of the defendants, appeals. For former report, see 8 N. Y. Supp. 237.

Four actions by the First National Bank of Jersey City against Frederick B. Bard individually, and as assignee of Clarke, Radcliffe & Co. and others, to determine the validity of certain confessed judgments in favor of the defendants Kenyon, Carter, Shepard, and Walker; all of which actions were tried together by consent. Judgment in favor of the defendants, and plaintiff appeals.

The plaintiff, having demanded a jury trial, appeals from the refusal of the judge at special term to grant it. Code Civil Proc. H. Y. § 968, provides that an issue of fact must be tried by a jury in an action in which the complaint demands judgment for a sum of money only.

Action by Annie Colwell against the Manhattan Railway Company for injuries sustained by plaintiff while a passenger on defendant’s car. Judgment was entered on a verdict for plaintiff, and a motion for a new trial was denied, and defendant appeals.

Action for separation by Theresa Branth against John H. Branth. A decree was given awarding plaintiff alimony, costs, and attorneys’ fees, and defendant induced plaintiff to execute a satisfaction of the decree; From an order setting aside such satisfaction, vacating an order which vacated a warrant of commitment of defendant for refusal to obey the decree, and permitting plaintiff’s attorneys, Langbein Bros. & Langbein, to issue execution on the decree, defendant appeals.

<p>Master and Servant—Negligence of Master.</p> <p>Plaintiff, employed by defendants, was sent, on the application of defendants’ foreman for more help, to assist in handling cases of glass weighing from 180 to 200 pounds. The foreman at first refused to set plaintiff at work, on the ground that he was not strong enough, and was inexperienced. But, on being sent back again by defendants, plaintiff was assigned to the duty of holding some of the glass at an elevated position, and was injured by some of the cases falling upon him. The work was dangerous to one without experience, and plaintiff had not been informed of such danger. Held, that the question of defendants’ negligence should have been left to the jury.</p>

Action by John H. Ming and Charles K. Wells against Austin Corbin. There was a judgment on a verdict for plaintiffs, and an order denying a motion for a new trial, and defendant appeals.

<p>Contempt—What Constitutes.</p> <p>The refusal of defendant, executor of an estate, to obey an order of the surrogate to appear and show cause why he should not pay a collateral inheritance tax, constitutes a contempt.</p>

For former report, see 8 N. Y. Supp. 759. Summary proceedings by Grant B. Taylor against Frank Wynne, Hannah Wynne, and others, to dispossess defendants, as tenants, of the possession of real property which had been sold to Taylor on an execution issued against Frank Wynne.

Action by Lewis J. Bozzoni against Frances M. Woodward to recover the price of a carriage sold to defendant. The latter went to plaintiff’s carriage manufactory, looked at a book of cuts of carriages, and selected one to be sent to her. Plaintiff testified that afterwards defendant went to his shop, and was shown a carriage, and that she said “it was just the article she wanted, and she would take it.

Action by a conductor for injuries in a collision between his train and a fugitive freight-car. The case was tried at circuit, and a verdict rendered for plaintiff for $10,000. A motion was made by the defendant on the minutes for a new trial, and the order appealed from was granted.

Action of Clara Carter against Brent S. H. Good and the Carter Medicine Company to set aside a sale of stock of the defendant corporation. Plaintiff’s father, Samuel Carter, the originator of “Carter’s Little Liver Pills,” united with a few other persons, among them the defendant Good, in forming the defendant corporation. In 1884, Carter died, owning one-half of the stock of the corporation, and leaving plaintiff his only heir,—then 17 years old.

Action by Samuel Wilson against the town of Spafford for personal injuries resulting from an obstruction in the highway. There was a verdict for plaintiff for $646.69 damages and costs. From a judgment thereon, and from an ordbr denying defendant’s motion for a new trial on the judge’s minutes, as well as an order denying its motion for a new trial on the ground of newly-discovered evidence, defendant appeals.

Action for damages for a breach of warranty on a sale of a barrel of shellac varnish. Judgment was entered on the report of a referee in favor of the plaintiffs for $700 damages, and costs. The defendants appeal.

Action by a tenant for having been unlawfully dispossessed by a summary proceeding, which was reversed on appeal. Judgment was entered on a verdict of $15 for the plaintiff, who moved for a new trial on the minutes. The verdict being less than $50, the defendant recovered costs. The plaintiff appeals.

Replevin by Samuel H. Weeks against William Martin, for a lot of logs. The court directed a verdict in plaintiff’s favor for the possession of 40,000 feet of logs valued at $240, and for $22.40 damages for detention. From a judgment thereon defendant appeals. Code Civil Proc.

<p>Appeal from circuit court, New York county.</p> <p>Action by Michael Collins against Thomas Manning and Orvain Hughes for malicious prosecution and arrest. Judgment for plaintiff, and defendants appeal.</p>

Action for the foreclosure of a mortgage by the Equitable Life Assurance Society of the United States against Bobert M. Olyphant and others. Plaintiff’s motion, to require the county clerk of Westchester county to tax as costs the sum paid to the Lawyers’ Title Insurance Company for searches in the action, was denied. Plaintiff appeals.

<p>Payment—Application.</p> <p>Plaintiff’s assignor was a stock-broker, and indebted to defendant, his mother, to whom he had given a policy of life insurance as collateral security. In an action to recover the policy, the question involved was the amount of the indebtedness still unpaid. Assignor’s books contained two accounts, with entries in reference to his indebtedness to defendant,—one an account of the principal; the other an interest account, in which were entered every month the amounts of interest paid or credited to Ms creditors. The interest account showed, and defendant admitted, that assignor paid defendant a certain amount every month, for several years, which was in excess of the interest due her. These payments were not referred to in the account of the principal debt. Held, that the payments were not intended to and did not apply to any extent on the principal debt.</p>

Petition by James T. Law for the probate of the last will of Joseph Gall. The probate was resisted by Amelia Gall and others, and the surrogate refused to probate the will. Petitioner appeals.

Action by the United States Life Insurance Company in the city of New York against the Oswego Canal Company to compel defendant to remove the water from its canal so as to enable plaintiff to repair certain stone piers on which rested a building owned by plaintiff. The referee reported i n plaintiff’s favor, and from a judgment entered thereon in Oswego county defendant appeals.

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

At the conclusion of the testimony the court below dismissed the complaint, from which plaintiff appeals. For former reports, see 3 N. Y. Supp. 290, and 6 N. Y. Supp. 165.

<p>Contributory Negligence—Question for Jury.</p> <p>Where, in an action for personal injuries, the question of plaintiff’s contributory negligence is fairly submitted to the jury, their verdict must control.</p>

Action by-Andrew Van Woert against Willis Ackley. In the Otsego circuit of January, 1887, the plaintiff had a verdict for $155.

Action to foreclose a mortgage, brought by John Blake against Anson B. Moore, George E. Apsley, Charles A. Moran, William H. Guien and Amanda Guión, his wife, Perry B. Williams; individually and as trustee, Avery T. Brown, as assignee of William H. Guión, and Charles E. Powell. The mortgage was executed by Moore and wife, who shortly afterwards conveyed the mortgaged property to William H. Guión, subject to the mortgage.

Conviction of D. W. Clegg of the crime of libel, published against Philip Wolf. Defendant appeals. Code Grim. Proc. 1ST. Y. § 293, provides that, upon the trial of an indictment, if there is a variance between the allegation and the proof as to time, or in the name or description of any place, person, or thing, the court may, in its judgment, if the defendant cannot be prejudiced in his defense on the merits, allow the indictment to be amended.

Howard H. Decker was convicted of sailing over the oyster-bed of Peter McDonald, with his rakes down, and disturbing the oysters, and sentenced to .pay a fine pf $100, under Penal Code 2>T. T. § 640, subd. 8, providing for the punishment of any person who unlawfully takes or carries away, or interferes with, or disturbs by any means, the oysters of another, legally planted in the bed of any river, etc.

Case submitted on agreed statement. The case submitted is as follows: Charlotte G-.

Action by Joseph Beran against the Tradesmen’s National Bank, impleaded with Michael Duffy. Judgment was given dismissing the complaint on the merits, and plaintiff appeals.

The court below adjudged that a legacy of $1,000, bequeathed by the will of Frederick Herr to the Brooklyn Home for Consumptives, is subject to the collateral inheritance tax. The legatee appeals. For former reports, see 5 1ST. Y. Supp. 48, and 7 1ST. Y. Supp. 852.

Action for rent reserved on a written lease by Jeronemus S. Underhill against Samuel Collins, who abandoned the premises before the expiration of the term. Judgment for plaintiff. Defendant appeals. Defendant abandoned the premises because of gambling in the building, and sent the keys to plaintiff, who refused to accept them, and they were afterwards placed on plaintiff’s desk.

Action by Margaret E. Cregan as administratrix of Patrick Cregan, deceased, against William H. Marston and others, for the wrongful death of her husband. Judgment for plaintiff. Defendant appeals. Deceased was engaged in shoveling coal into buckets in the hold of a canal-boat. These buckets were raised by a rope fall operated by a steam-engine. The fall attached to one of the buckets broke, and the bucket fell on deceased, killing him instantly.

Foreclosure by the Harlem Co-operative Building & Loan Association against John Quinn as trustee of and under the last will and testament of Thomas Connell, deceased. The defendant demurred to the complaint for a defect of parties, in that no cestui que trust was joined with him. From an order overruling his demurrer, defendant appeals.

Action by Charles T. Mitchell and others against Mary A. W. Thorne, to restrain defendant from desecrating the burial ground of plaintiffs’- ancestors, which plaintiffs allege was reserved by their ancestor in a conveyance of the land to defendant’s predecessor in title as a place of interment for himself and his heirs, together with a right of way to the same. Defendant’s demurrer to the complaint was sustained, and plaintiffs appeal.

The petition of the Church of Our Lady of Mercy for the appointment of commissioners to assess the damages accruing to its property from the change of grade made in the street on which it abutted, by the Bew York, Bew Haven & Hartford Bailway Company, with the consent and by the authority of the village of Port Chester, against which damages were assessed in favor of petitioner. Defendant, the village, appeals from the award of the commissioners.

Action by Rozellen Aldinger against Emery S. Pngh. Defendant and Stephen J. Pugh appeal from an order adjudging them guilty of contempt, and inflicting punishment therefor.

On exceptions from circuit court, New York county. Action for injuries resulting in death, caused by an obstruction in a street. The complaint was dismissed at the circuit, on the ground that the cause of action was barred by the statute of limitations.

On exceptions from circuit court, Kings county. Action by Absalom Pallett, as administrator of Joseph A. Pallett, against the Kings County Elevated Bail way Company, for the wrongful death of deceased. Complaint dismissed. Plaintiff excepts.

On final settlement of the accounts of Edward A. Robinson, executor of James W. Robinson, the surrogate excluded James W. Todd and others, grandchildren of decedent, from participation in that portion of the estate devised by the second clause of the will. The grandchildren appeal.

Action by John H. Byron against Edward T. Bell and others, as administrators, etc., of Henry B. Low, deceased, on a contract for work done, and profits on work which defendants' intestate prevented plaintiff from doing. In 1881, defendants’ intestate had a contract with the New York & Scranton Construction Company to build for it about 40 miles of railroad lying in New Jersey and Pennsylvania, being part of. the New York, Susquehanna & Western Railroad.

<p>Payment—Evidence.</p> <p>Plaintiff testified that defendant, a broker, had sold a note for him, and that he had refused to pay over the proceeds. Defendant gave evidence tending to show that the relation of banker and customer existed between him and plaintiff, and that he had paid out such proceeds on checks drawn by plaintiff. A letter from plaintiff was put in evidence in which he spoke of leaving money on deposit with the defendant. Meld, that a judgment for plaintiff for such proceeds would not be disturbed.</p>

ppeal from trial term. Action by Mary Ann McMurray, as administratrix of Lawrence Ennis, deceased, against Teresa Ennis. The judgment was for the plaintiff. Defendant appeals.

The action was commenced in the year 1888, in the name of Cornelius George Crowley, grantor, and Joshua C. Sanders, grantee, against Mary Murphy and others, under section 1501 of the Code of Civil Procedure, to recover the possession of certain premises situate within the city and county of New York.

<p>Appeal from trial term.</p> <p>Action by James Collins, as administrator, etc., against the Long Island Railroad Company. The action was dismissed, and plaintiff appeals.</p>

<p>1. Building Contracts—Evidence.</p> <p>In an action for breach of a contract for the building of a house, evidence as to the cost of removing defective material, and of replacing the same in accordance with the contract, was admissible.</p> <p>8. Damages—Instruction.</p> <p>In such action a request to charge as to the rule of damages for defective workmanship or poor material is properly refused as too general, where there is also a claim for material not furnished, and for delay in the performance of the contract.</p>

<p>Appeal from special term.</p> <p>Action by William A. Schult against Conrad Moll. There was a judgment for plaintiff, and defendant appeals.</p>

Petition by Hubert O. Thompson, commissioner of public works, for the appointment of commissioners of appraisal, under Laws N. Y. 1883, c. 490, providing for the construction of the new Croton aqueduct, to condemn lands for that purpose. Frank B. Mallory, William B. Wadsworth, and the executors of George W. Parsons, all owners of real estate affected by the proceedings, appeal from the report of the commissioners of appraisal, and the allowance of damages.

Application by Wilbur L. Paddock for writ of habeas corpus to obtain the possession of his infant child, Grace Paddock, who was in the custody of her grandmother, Mary C. Eager. An order was made at the special term awarding the custody of the child to petitioner, and respondent to the writ, Mary C. Eager, appeals.

The Faith Home for Incurables is an incorporated benevolent and charitable society, whose object is to maintain respectable homeless persons, afflicted with incurable disease. It is maintained entirely by charity, and its inmates are people without home; money, or friends able to support them.

<p>Appeal from special term, Kings county.</p> <p>Action for libel by Daniel W. Tallmadge against the Press Publishing Company. For former report, see 7 N. Y. Supp. 895.</p>

<p>L Taxation—Tax-Deeds—Presumption of Regularity.</p> <p>In an action for the price of lands in L. county, the defense was a breach of covenant. Defendants offered in evidence tax-deeds of the lands, which had been recorded over two years, to the state, based on taxes assessed prior to the conveyance to covenantees. Act N. Y. 1855, § 65, as amended by Laws 1860, c. 209, provides that such deeds shall be presumptive evidence that the sale, and all proceedings prior thereto, and all notices required to be given previous to the expiration of the two years allowed for redemption, were regular and according to law. Laws 1885, c. 448, provides that as to certain counties, including L., such deeds shall, after being recorded two years, be conclusive evidence of the regularity of the sale, and of the proceedings prior thereto, and of the notices for redemption. Held, that these deeds were at least prima facie proof that the title of the covenantees was lost by reason of liens prior to the deed to them.</p> <p>2. Covenants—Breach.</p> <p>The lands were wild and uninclosed. The tax-sale was in 1871. The deeds to the state were given in 1875, and recorded in 1877. The covenantees never recorded their deed, had nothing to do with the land after 1871, and in 1874 said there was no use in recording the deed, as their title was not good, owing to the sale for taxes. Laws N. Y. 1885, c. 283, creating the forest commission, provided (section 7) that all lands owned by the state in certain counties, including L., should constitute the “forest preserve,” should be kept forever as wild forest lands, and should be cared for by the forest commission. Held, that this act, with the report of the forest commission to the legislature, showing that said land was included in the forest preserve, was such an assertion of ownership as constituted a constructive eviction by the state, entitling defendants to a remedy on the covenant.</p>

Petition by Miriam M. Kellogg, Sarah M. Kellogg, Julia Ann Sleeper, and Eliza Pratt, creditors and heirs at law of David Moulton, deceased, for the revocation of letters of administration theretofore granted to Emily A. Moulton, widow of the deceased. From a decree in favor of the administratrix the petitioners appeal.

Stonebridge, Jr., receiver of the New York Book ..Company, for the examination of John B. Alden in relation to the company’s property. For former report, see 6 N. Y. Supp. 311.

Action by Henry Wittenhrock against L. Mabius and others. Egbert Achtmann was subpoenaed to appear and be examined as a witness under a commission issued in the action. His motion to vacate the subpoena was denied, and he appeals. Code Civil Proc.

Action by Catharine Keating against Jacob Gunther to enforce the specific performance of a contract for the sale of land. Judgment for. plaintiff compelling defendant to accept the title, and defendant appeals. The opinion of the special term, referred to, is as follows:

Suit by William L. Whittemore, as administrator of Henry Hubbell, deceased, against the Judd Linseed & Sperm Oil Company and George Deforest Lord, to enjoin the collection of a judgment, against the estate of deceased. The complaint was dismissed, and plaintiff apnealed.

For former report, see 9 H. Y. Supp. 536. Action by John B. Boss against John Simon, Ignatz Schmitt, and others, to enforce a mechanic’s lien. Simon was the owner of the premises sought to be subjected to the lien, and Ignatz Schmitt had leased them. Defendant Simon demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action against him, and from a judgment sustaining the demurrer plaintiff appeals.

<p>Action by Bobert Mazet against Moses B. Crow and Boland M. Hazard. Plaintiff moves for leave to discontinue the action.</p>

<p>Motion for rehearing. For former report, see 8 2í. Y. Supp. 326.</p> <p>Action by Francis C. Lawrence against the Metropolitan Elevated Bailway Company and another to recover damages caused by the operation of defendant’s road in the street in front of plaintiff’s premises, and for an injunction against the operation of the road. Judgment was given for plaintiff, and defendants appeal.</p>

<p>W ills—Undue Influence—Evidence.</p> <p>Seven years before Ms death, testator executed a will dividing his estate between Ms son and two daughters, with an annuity of $100 to his housekeeper; appointing his son and two grandsons executors. By a subsequent codicil* the housekeeper’s annuity was increased to $300. His son managed testator’s business, and was highly esteemed by him. Three years later, testator, then 84 years old, was stricken down with paralysis, and his condition was such as to require great care from some one, which was given him by his housekeeper. By threatening to leave him, she so worked on testator’s fears that he secretly married her. An attorney who was intimate with both testator and the housekeeper persuaded testator that Ms son had deceived him in some trivial business transaction, and testator became suspicious of him. After the marriage the treatment of the children by the attorney and the housekeeper was such that they rarely visited testator. Testator’s son continued to transact some business for him; but the housekeeper and attorney dominated all testator’s business affairs, and never permitted the son to see testator alone. Held, that a will executed without the knowledge of any of testator’s children a few months after the marriage, and within 18 months of testator’s death, by which he gave the housekeeper a one-fourth share in all his property, the two daughters each one-fourth, and. by which he cut oS his son with a life-interest in the other fourth, vesting the entire control of the estate in the attorney, would be set aside for undue influence.</p>

Action by Smith Byder against the Bushwick Bailroad Company for the specific' performance of certificates dated March, 1868, entitling the holder to 30 shares of the capital stock of defendant company on surrender of the certificates at the company’s office. Judgment for defendant, and plaintiff appeals.

Action by Frances E. Cooper against the United States Mutual Accident Association of the city of New York on a certificate of membership issued by defendant to Theodore H. Cooper, plaintiff’s husband, which promised to pay to plaintiff $5,000, should said Theodore H. Cooper die from ah injury, and within 90 days from such injury.

Action by William M. Tebo to restrain the city of Brooklyn from selling plaintiff’s land in Gowanus bay for taxes, and to compel the cancellation of the tax. Plaintiff contended that the land, on which was a pier, was not within the city, of Brooklyn, because below low-water mark. From a judgment for plaintiff, defendant appeals.

Action by Francis J. 0. Ferris against the Armstrong Manufacturing Company for a wrongful arrest and imprisonment. Defendant in its answer set up a judgment as a counter-claim, which judgment “was recovered in the same action in which the plaintiff was arrested. ” Plaintiff demurred to the counter-claim, and from a judgment sustaining the demurrer, defendant appeals. For opinion.in,the action wherein plaintiff was arrested, see 4 H. Y. Supp. 610. ■ Code Civil Proc.

Action by Francis J. C. Ferris against the New Haven Web Company for wrongful arrest and imprisonment. Defendant set up a judgment as a counter-claim, which judgment was recovered in the same action wherein defendant was arrested. From a judgment sustaining plaintiff’s demurrer to the counter-claim, defendant appeals. For opinion in an action wherein plaintiff was arrested, see 4 N. Y. Supp. 610.

Action by Edward Rouget against Theodore Haight and Ellen J. Haight on an instrument under seal, as follows: “This agreement, made and entered into by and between Theodore Haight and Ellen J. H. Haight, his wife, of Irvington, -Westchester county, New York, parties of the first part, and Edward Rouget, of Ridgefield Park, New Jersey, party of the second part, witnesseth: The said party of the second part hereby agrees to advance to said Theodore Haight from time to time sums…

Action by Melvin Stephens against Dorothy Humphryes, Robert Lewis Humphryes, Margaret E. Humphryes, his wife, Mary Elizabeth Hall, Thomas Hall, her husband, and Matthias Trimmer. Defendant Thomas Hall moved to vacate an order striking his name from the complaint, and from an order denying such motion he appeals.

<p>Municipal Corporations—Appointment of Officers—Commission.</p> <p>Where the record of the proceedings of the village trustees shows that a street commissioner was appointed at a meeting of the trustees, and took the oath of office, and filed a bond, as required by Laws N. Y. 1870, c. 291, under which the village was incorporated, it cannot be objected to the validity of his appointment that no commission was issued, as the act does not provide for a formal commission.</p>

<p>Appeal from special term, New York county.</p> <p>Four actions by Charles Rosenberg, Alfred Adler and others, Carl'Eggerbreeht and others, and Morris Boley, respectively, against James A. Flack, to recover goods seized by defendant as sheriff under execution against John Brandt. Orders of discontinuance in the several actions were set aside, and the execution debtor, Brandt, was made a defendant therein, and plaintiffs appeal.</p>

Action for damages by William W. Newman against George Stuckey and William Stuckey. Verdict for plaintiff for $95, and motion on judge’s minutes for new trial denied, from which, and from the judgment entered on the verdict, defendants appeal.

Action by Ezra Farnsworth and others against William M. Halstead and others constituting the firm of Halstead, Haines & Co., for goods sold and delivered. Defendants admit the allegations of the complaint, and plead in bar a former recovery by plaintiffs on the same cause of action. Plaintiffs move to strike out the answer as sham.

<p>Certiorari to review the action of the police commissioners in dismissing the relator, Cornelius Weston, from the police force.</p>

The action was brought to set aside an alleged illegal assessment upon real property, and to recover back taxes and other moneys paid out on account thereof. The findings of fact by the trial court are in accordance with the evidence in the case, and are substantially as follows: The assessment was made in 1864, upon real estate in the Second ward of Oswego, to and in the name of one William Averill, and the tax levied thereon.

Action by Harvey E. Oliver against Walter Heywood Chair Manufacturing Company. Plaintiff appeals from an order vacating an attachment in his favor against defendant, on tbe ground that it was a non-resident corporation. Code Civil Proc. H. Y. § 1780, provides as follows: “An action against a foreign corporation may be_ maintained by a resident of the state, or by a domestic corporation, for any cause of action.

Action by Winfield Waters against Christopher C. Shayne. Plaintiff appeals from an order vacating an order for the examination of defendant as a witness before trial.

Action by James Brooks against the mayor, etc., of the city of Few York. The court directed a verdict for plaintiff, and from the judgment entered thereon defendant appeals.

A verdict was rendered for the plaintiff for $750 damages. An order was made in that court denying a motion made upon the judge’s minutes for a new trial. Appeal from the judgment and order.

Action by Horace Benjamin against Henry L. Rogers, as executor of the last will and testament of Hiram Crandall, deceased, upon a promissory note. Verdict at the Cortland circuit for plaintiff. A motion for a new trial was made upon case and exceptions at a special term at Binghamton, which was denied. Judgment was entered in Cortland county for plaintiff. The note read as follows: “$4,000.

<p>Conflict of Laws—Wills—Trusts of Personalty.</p> <p>Where a testatrix dying in Rhode Island creates in a New York corporation certain trusts relating to personalty, which are valid under the laws of testatrix’s domicile, but void under the laws of New York, though not on account of the incapacity of the beneficiaries to take, the courts of the latter state will not assume jurisdiction in the premises, but the trusts must be administered and their validity determined under the laws of Rhode Island.</p>

Action by John W. Foulks against Thomas Foulks and others, executors of William Foulks, deceased, and others. From a judgment dismissing his complaint the plaintiff appeals. For report of general term opinion affirming an interlocutory judgment overruling a demurrer to the complaint, see 6 35. Y. Supp. 112; and for denial by the surrogate of a motion to vacate decrees theretofore rendered, see ante, 515.

Certiorari directed to the commissioners of highways of the town of O wego, Tioga county, ST. Y., to review an order made by said commissioners, January 14, 1889, laying out a highway in said town, on the application of John P. Holden, through the lands owned and occupied by John Scrafford, Sarah Scrafford, Mary A. Scrafford, and others.

<p>Divorce—Property Rights—Tenancy by Entirety—Tenancy in Common.</p> <p>Where husband and wife are seised of a tract of land by the entirety, and a divorce a vinculo is granted on the ground of the wife’s adultery, they are thereafter seised as tenants in common.</p>

<p>Certiorari to review the action of police commissioners in dismissing relator, James Steele, from the police force of the city of New York.</p>

Exceptions from circuit court. New York county Action by George O. Beach against the mayor, etc., of the city of New York to-recover his salary as an apportionment clerk in the dock department for the period commencing December 12, 1886, and ending November 19, 1888. Verdict was directed for plaintiff, exceptions to be heard in the first instance at general term.

Hayden, police and excise commissioner of the city of Brooklyn, in removing relator, Richard Fox, from the position of boiler inspector in said city. Relator contends that he is not subject to removal except in the manner provided by law for the removal of uniformed members of the police force.

Action by Charles H. Hunter against New York, Ontario & Western Bail-road Company. There was a verdict for plaintiff for $8,000. From the judgment entered thereon defendant appeals. For opinion on a former appeal, see 23 N. E. Rep. 9.

<p>Costs—Taxation in Foreclosure Suits—Search of Title.</p> <p>Under the statute and rules of practice in New York, fees paid by complainant In foreclosure suits for searches of title are only taxable as legal disbursements when the searches are official. Affirming 9 N. Y. Supp. 336.</p>

<p>Trial—Instructions—Refusal to Charge.</p> <p>Refusal to charge abstract principles is not error where all the principles applicable to the case have already been charged.</p>

Action by John M. Townsend against Mary G. Tompkins. A judgment rendered for plaintiff by the justice, before whom the cause was tried, was affirmed by the county court, and defendant appeals.

<p>Encroachments on Highways—Liability of Towns.</p> <p>Under Laws N. Y. 1881, c. 700, § 1, imposing a liability on towns for injuries caused by defective highways in cases where the highway commissioners were personally liable at common law, a recovery can be had of a town for personal injuries sustained by reason of the branches of a tree being permitted to hang so low over the traveled portion of a highway as to leave a space insufficient for the passage of a load of hay.</p>

Action by George W. Hart and Benjamin F. Hart against James H. Haight. The case comes up on defendant’s appeal from a judgment of the county court affirming a judgment rendered by a justice of the peace in favor of the plaintiffs.

Action by William Watson against Albert Benz to recover damages for trespass to real estate. Plaintiff appeals from an order retaxing his costs. Code Civil Proc. K. T. § 3072, relates to appeals from justices’ judgments where new trials are demanded in the appellate court.

Action by Stephen L. Bartlett against Edward Sutorius for the proceeds of certain sales alleged to have been made by defendant as plaintiff’s agent.

Application by the people of the state of New York for leave to commence action against the Equity Gas-Light Company of the eastern district of Brooklyn for a forfeiture of the company’s charter, rights, and franchises. The application was denied, and the people appeal.

<p>Taxation—Void Assessment—Relevy by Legislature.</p> <p>The legislature has power to ratify and relevy void taxes, and the power includes the interest as well as the amount of the tax originally.</p>

Action by George I. Landon as receiver of the Bowling Green Savings Bank against James Van Etten and Smitten V. Tripp. Defendants offered to allow judgment for $1,500 with interest. The recovery was for $1,609.90, but at that date the amount of the offer with interest was for $2,407.25. Defendants appeal from an order denying them an extra allowance. Code Civil Proc.

<p>Certiorari to review the action of police commissioners in dismissing relator, Cornelius W. Roe, from the police force of the city of New York.</p>

<p>Contract—Interpretation.</p> <p>An agreement between plaintifl and defendant for the transportation of Mexican pilgrims from New York to Rome by a steamer owned by plaintiff was made by a correspondence, which commenced with a letter from defendant referring to a preceding conversation respecting the matter, and adding: “ Our people in Mexico advise that upon favorable terms they can secure a party of about 175 or 200 people, with a possibility of increasing the number. These people will be divided into classes, about as follows: 75 first-class, 75 second-class, 60 steerage. ” Plaintiff replied stating the rates, but without mentioning any number, and received an answer expressing dissatisfaction with the rates, and stating: “There is a probability that there will he 250 people, or more. ” Plaintiff then wrote stating, inter aUa: “We beg to confirm the understanding arrived at between us, viz., that you will not ship less than 75 first-class, 75 second-class, and 100 third-class passengers for the round trip; ” and then again mentioned the rates, which were accepted by a letter on the same day, stating: “There is a probability that the party will exceed 250. ” Other letters passed without mentioning the number of passengers until plaintiffs wrote expressing surprise at hearing of a falling off in the number of the passengers, and notifying defendant it would be held responsible for the passage money on the numbers originally arranged. The vessel was then engaged for the trip. Meld, that the agreement was for the transportation of 250 persons, including the different classes, and that plaintiff could recover of defendant damages resulting from its failure to furnish that number. Distinguishing Railway Co. v. Mane, 43 Ñ. Y. 240. Daniels, J., dissenting.</p>

Action by Agnes Butler, as administratrix of John Butler, deceased, against James A. Townsend and George Edgett, to recover damages for the death of her intestate, alleged to have been caused by defendant’s negligence. • There was a verdict for plaintiff for $5,000. From the judgment entered thereon defendants appeal.

Action by the Farmers’ Loan & Trust Company against the New Rochelle & Pelham Railroad Company, to foreclose a mortgage given by defendant to secure a series of its bonds. The village of New Rochelle moved to be made a party defendant, and now appeals from an order denying the motion.

An indictment against John' De Camp for assault. At the close of the trial defendant moved to dismiss on the ground that there was no constitutional court at the time the last four jurors were sworn, one of the-justices being then absent. The motion was denied, and from this denial and the judgment of conviction defendant appeals.

A petition by Patrick J. Gleason and Emma Roedieger, as administrators of Louis C. H. Roedieger, to reopen foreclosure proceedings instituted against their intestate by the'plaintiff, John C. Provost. No resale was ordered, but the court ordered plaintiff to credit on the deficiency judgment the sum realized on a resale of the property, and directed the judgment to be satisfied on plaintiff’s being paid the balance due. Plaintiff appeals.

On exceptions from circuit court, Kings county. Action by Walter L. Meserole, as administrator of Thomas Meserole, against the Brooklyn City Railroad Company, for negligently causing the death of plaintiff’s intestate. A nonsuit was ordered, exceptions to be heard in the first instance at general term.

Action by Matthias N. Forney against the Engineering News Publishing Company to restrain defendant from using the words “Railway Journal” in the sub-title of its periodical named “Engineering News and American Railway Journal.” The complaint was dismissed, and the following opinion rendered: “Beach, J. In January, 1887, plaintiff issued the first number of a monthly periodical named ‘ The Railroad and Engineering Journal.’ In 1886, he had purchased, for five hundred dollars…

Myers, comptroller of the city of New York, in re.moving relator, Henry Woltman, from his position as clerk of markets. For former ligitation, see 8 H. Y. Supp. 555.

<p>Wills—Construction—When Legacy Vests.</p> <p>By his will testator gave the income of his real and personal estate to his wife and son during their joint lives, the survivor to take the whole thereof, and upon their decease, the son leaving lawful issue them surviving, all the estate was to go to such issue, and in case there should be no such issue, then the real estate was to he sold. Testator further provided that “upon the decease of my said wife and son, he not leaving lawful issue them both surviving, as aforesaid, I give and bequeath my estate, and the proceeds and sales of my real estate, aforesaid, as follows. ” Then followed certain legacies, including one to plaintiff, a religious society in Connecticut, the interest of which was to be applied to keeping testator’s monument in repair, and the balance, if any, towards discharging the salary of plaintiff’s minister. At testator’s death plaintiff had not capacity to take the legacy, but before the death of the life-tenants the Connecticut statutes were amended so as to enable it to take. Held, that it was testator’s intention that thebequest to plaintiff should not go into effect until the death of his wife and son, the latter leaving issue both surviving, and that as plaintiff had capacity to take upon the happening of that event, the gift then went into effect.</p>

Action by Michael J. Dady against the mayor, etc., of the city of New York. Judgment was entered on a verdict for plaintiff, and there was an order denying a motion for a new trial, from which defendant appeals.

<p>Case submitted on agreed statement.</p> <p>Action by William B. Boyce and others, administrators c. t. a. of Henry B. Low, to compel defendant, Jennie C. T. Adams, to accept a deed of land formerly belonging to testator, and to pay the purchase price.</p>

Atkinson against Rudolph Oelsner. Judgment was entered on a verdict for plaintiff, and an order was entered denying a motion for a new trial, and defendant appeals.

. Action by Malcolm Henderson against Julius A. Kohn and others, to compel a reconveyance of land given as collateral for notes. There was judgment for plaintiff, and defendants appeal.

<p>Appeal from special term, Herkimer county.</p> <p>Action by David K. McCarthey and others against Isaac H. Wright and others. An order was made requiring Isaac B. Bichmond, the assignee of the defendants, to pay costs out of the assigned funds in his hands, and he appeals.</p>

<p>1. Evidence—Expert Testimony.</p> <p>A surgeon testifying as an expert for plaintiff in an action for personal injuries, having stated that he had heard “most” of the plaintiff’s testimony, was asked the following question: “Take such a fall as he describes here, resulting from a collision of two cars, and the symptoms following that fall, he having theretofore been a sound and healthy man, can you state with reasonable certainty that the consequences that have followed are natural and usual? ” Held, that such question should not be allowed, as it permitted the witness to state his conclusions from the testimony, instead of confining his opinion to a supposed state of facts.</p> <p>8. New Trial—Newly-Discovered Evidence.</p> <p>Newly-discovered evidence to the effect that prior to the injury complained of plaintiff had been injured in a railroad accident is not available as ground for a new trial, though plaintiff’s counsel stated in the course of the trial that plaintiff had already stated, that he was perfectly sound and healthy before his fall and injury, and that he had received none other, as such statement of counsel will not be deemed a stipulation in the absence of anything to show that it was intended to be such.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Louis Stono against Herman Weiller. Judgment for defendant, and plaintiff appeals.</p>

Bell, police commissioner of the city of Brooklyn, in dismissing relator, Frederick M. Frey, from the police force of said city.

<p>Appeal from special term, Kings county.</p> <p>Action by William R. McLoughlin and another, as executors, etc., of Robert McLoughlin, against Ira O. Miller, to recover money paid by plaintiffs for assessments on property conveyed by defendant’s deed to their testator, with full covenants and warranty. There was judgment for defendant, and plaintiffs appeal.</p>

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

<p>Appeal from special term, Westchester county.</p> <p>Action to foreclose a mechanic’s lien filed by George A. Rogers against Hannah McGuire, the owner of the premises, William McGuire, her husband, and others. From the judgment entered therein, defendant Hannah McGuire appeals.</p>

Action by Mary Haskins, as administrator of her husband, Beuben Has-kins, against James Stewart and George Stewart, to recover damages for the death of intestate alleged to have been caused by the negligence of defendants. There was a verdict for plaintiff for $5,000. From'the judgment entered thereon defendants appeal.

A claim by Anne C. Wilsey against the estate of her mother, Mary Mixon, for services rendered deceased in her life-time. The matter was referred, and the referee decided that plaintiff was entitled to judgment for $705.39. The report having been confirmed, the executors appeal.

<p>Action by Mathew Barker to enjoin the town of Oswegatchie, Daniel Ma-gone, William J. Averell, Fenton Devoy, Alexander Mayne, Henry Lovejoy, and Samuel H. Palmer, as supervisors of said town of Oswegatchie, the board of supervisors of St. Lawrence county, and the board of town auditors of said town of Oswegatchie, from constructing a bridge at the Eel Weir rapids in said town. A temporary injunction was granted, and defendants now move to dissolve it.</p>

Case submitted on agreed statement. ■ Action by the Berlin Iron Bridge Company against Joseph E. Wagner, as sole commissioner of highways of the town of Oswegatchie, for money due it under a contract for the erection of a bridge across the Oswegatchie river.

Proceedings for the probate of the will of Francis W. Lasak. . From a decree admitting the will to probate, Cordelia D. Chauvet, Antoinette L. Schermerhorn, and Margaret S. Ives appeal. For former litigation, see 7 ÍT. Y. Supp. 2; 8 N. Y. Supp. 740, 775.

Action by the Employers’ Liability Assurance Corporation against the Employers’ Liability Insurance Company of the United States to restrain the use by defendant of the words “Employers’ Liability” in its corporate name. Plaintiff now moves to continue a temporary injunction heretofore granted.

Action by James Reilly against the mayor, aldermen, and commonalty of the city of New York to recover salary as subpoena server in the office of the district attorney of the county of New York. The plaintiff was appointed a subpoena server in the office of the district attorney of New York county January 1, 1868, and served until January 1, 1872. His salary was originally fixed at $1,300 per annum.

<p>Appeal from circuit court, Kings county.</p> <p>An action by William Devlin against the Atlantic Avenue Railroad Company, impleaded with Guns Haussknecht, to recover for injuries sustained in a collision between the company’s liorse-car and the other defendant’s wagon. The court dismissed the complaint as against the railroad company, and plaintiff appeals.</p>

<p>Municipal Corporations—Discharge op Policeman.</p> <p>A policeman was charged with conduct unbecoming an officer, the specification being that he was brought to the station-house by a roundsman, he having been taken from the Harlem river by certain other officers, so drunk as to be unfit for duty. Held, that the specification sustained the charge, and was sufficiently supported by evidence showing that defendant was so intoxicated as not to appreciate surrounding circumstances.</p>

Action by Horatio G. Seeber against the American' Mining & Milling Company, to recover compensation for services rendered defendant on an alleged contract for $150 a month. A nonsuit was ordered, the exceptions to be heard in the first instance at general term.

Action by the Port Jervis, Montieello & New York Bailroad Company against the- New York, Lake Erie & Western Bailroad Company to recover damages for breaking the connection between the roads of these parties at Port Jervis, N. Y., and to obtain a perpetual injunction requiring the defendant to restore the connection, and restraining further interference therewith.

Action by William Robinson, executor, etc., against Dewitt C. Brower, to foreclose a mortgage. Judgment entered on the findings of the court foreclosing the mortgage. Defendant appeals*.

<p>Appeal from special term, Westchester county.</p> <p>Action by Ellen M. Quinn against Margaret McDonald to foreclose a mortgage assigned to plaintiff. Plaintiff appeals from an order of reference.</p>

<p>Appeal from special term, New York county.</p> <p>Action by John E. Duff against William J. Hutchinson and George H. Kennedy. Plaintiff appeals from a judgment dismissing his complaint on its merits.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Sander Harris against John H. Strodl. There was judgment for plaintiff, and defendant appeals.</p>

<p>Certiorari to review the action of the police commissioners of the city of New York in dismissing relator, Charles T. Eeis, from the police force.</p>

Upon the accounting of Henry Barron and Edward Wood, executors of the will of Edmund H. Prior, the question arose as to when the general legacies began to bear interest, and, the surrogate having decided that the legacies drew interest from one year from the issue of letters testamentary, the New York Infirmary for Women and Children, to whom a general legacy of $15,-000 was given, appeals.

Action by Sarah Swartwood against Philo Walbridge. Verdict and judgment for plaintiff, and motion for a new trial denied. Defendant appeals.

Action by Garfield National Bank against Frank W. Colwell. There was a verdict and judgment for plaintiff, and defendant appeals. For former litigation between the same parties, see 8 N. Y. Siipp. 380; 5 N. Y. Supp. 956; 4 N. Y. Supp. 5.

Action by William Sperb, Jr., against the Metropolitan Elevated Railway Company. Defendant appeals from an order setting aside a stipulation for the settlement of the action.

<p>Certiorari to review the action of the board of park commissioners of the city of New York in dismissing relator, Michael E. Cunningham, from the police force of the department of public parks.</p>

Action by Kate E. Clarke against John D. Crimmins. From a judgment rendered in favor of defendant' upon a dismissal of her complaint the plaintiff appeals.

<p>Appeal from judgment on report of referee.</p> <p>Action by Edgar B. Taylor against Charles G. Saxe and Frank J. Saxe. There was judgment for plaintiff. Defendants appeal.</p>

This is an appeal taken by Wesley Brett, a residuary legatee under the will of Robert Willett, deceased, from that portion of a decree directing a distribution of the estate which allowed Susan A. Scott and the First Methodist Episcopal Church of Matteawan, 2T. Y„ to share in the distribution of the surplus.

Action by New York Rubber Company against John Rothery and William Rothery to recover damages for the diversion of running water in a stream. There was a verdict for defendants, and from the judgment entered thereon plaintiff appeals. For former reports, see 14 N. E. Rep. 269; 20 N. E. Rep. 546 ; 6 N. Y. Supp. 954.

Action by Charles Slocum against Edward M. Slocum to recover for moneys expended, and work and materials furnished, upon premises which plaintiff alleged had been leased to him for one year by defendant. There was a judgment for plaintiff and defendant appeals. Code Civil Proc.

Action to force a material-man’s lien by Edwin L. Thomas, who furnished lumber to James P. Stewart and William T. Edmonds, the contractors for the erection pf a building owned by defendant Astan Sahagan, who alone appeals from the judgment.

<p>Appeal from judgment on report of referee.</p> <p>Action by Peter T. Flynn against Edward J. Woolsey. The complaint was one to recover for work, labor, and services. There was judgment for plaintiff, and defendant appeals.</p>

Action by William Sutherland against George B. McKinney and Silas H. Dickerson and Charles S. Puff, the sureties in his official bond as constable, to recover damages for the insufficient levy of an attachment theretofore sued out by plaintiff.

<p>Wills—Construction—Rights of Legatees.</p> <p>Testatrix left her residuary estate to her executor in trust, to convert into bonds, and from the income thereof to pay siich°sums as he should in his judgment think necessary for the support of her sister, but only in case she should be in “absolutely needy circumstances; ” the surplus in any year to be paid the trustees of a certain church, to be used solely for the purpose of paying the salary of the minister, and the whole of the income to be so paid, if not needed for the support of the sister. The will further provided that after her sister’s death, if the said church should be in good standing, and her executor should regard it safe, and for the best interests of her estate, he should in that event hand over to the trustees of the church the residue of her estate, or the securities representing it, and the church trustees should thereafter be the trustees of the fund under her will, and be governed in all respects by the directions therein in regard to the fund, in no event using any part of the principal for any purpose, and only appropriating the income in the manner and for the purpose indicated and directed in her will, and, from the time of handing over and delivering the fund to the church trustees, her executor should be discharged from the care of and liability for the fund. It was further provided that, if at any time such investments as the will prescribed could not be made, the executor or the church trustees, whichever should then have control of the fund, should invest it under the direction of the surrogate. Held that, after the sister’s death, the church was the sole beneficiary of the fund, the trust to continue in the executor unless he decided to pass it over to the church.</p>

<p>Appeal from special term, Kings county.</p> <p>An appeal by Asbury Lester from an order confirming the report of the commissioners of appraisal disallowing his claim for damages to his contiguous real estate'from the construction and maintenance of the new aqueduct.</p>

Action by William E. Earl, as administrator, etc., against George W. Crouch, Jr. The court directed a verdict for the defendant, and dismissed the complaint, from which plaintiff appeals.

Action by Edward J. Davis against Warren G. Willis for the conversion, of a quantity of hay. There was a verdict in plaintiff’s favor, and defendant-appeals.

Exceptions from circuit court, New York county. Action by Elias Bach against Simon Tuch as assignee for benefit of creditors of Rudolph Moeller. A verdict was directed for defendant, and plaintiff moves for a new trial on exceptions to be heard in first instance at general term. For former report, see 7 N. Y. Supp. 611.

Action by Charles G. Martin and another against Hattie W. Bliss. Plaintiffs appeal from a judgment dismissing their complaint after trial at circuit. For former report, see 5 H. Y. Supp. 686.

Action by Charlotte Wainwright against William G. Low and the Sailors’ Coffee House Company, Limited, to recover possession of real estate. There was judgment in favor of plaintiff, and defendants appeal. For opinion on motion to take deposition, see 1 H. Y. Supp. 786.

Action for partition of land, brought by William Thomas Daly against Margaret Beer, Catharine Powles, Elizabeth Sarah Russell, and the people of the state of New York. Defendant Margaret Beer appeals from an interlocutory decree entered therein for report of former litigation. See Halsey v. Beer, 5 H. Y. Supp. 334.

Action by Louisa Williams and others against Samuel D. Folsom and others. Defendants appeal from an order denying their motion to have certain portions of amended complaint stricken out. For former litigation, see 3 N. Y. Supp. 681; 5 N. Y. Supp. 211; 7 N. Y. Supp. 568.

Exceptions from circuit court, New York county. Action by Catherine A. Hogan against Caroline Wolf. The complaint was dismissed, and the exception taken by plaintiff ordered heard in the first instance at general term.

Action by Benjamin T. Davis against Jemima S. Davis, individually, Bebecca D. McKay, and Jemima S. Dávis, and William W. Ambler as executors of Gilbert T. Davis, to recover possession of the books of account of the late firm of Davis & Co., composed of plaintiff and his father, said Gilbert T. • Davis. The partnership was dissolved by mutual consent, and it was agreed that deceased should retain the books, collect the accounts, and pay the debts of the firm.

Action by David Spero against the West Side Bank. Plaintiff appeals from an order denying his motion to vacate order for his examination before trial. For report on former appeal, see 7 if. Y. Supp. 546.

Action by Abram V. Boak as receiver of Eugene A. Blair to set aside an assignment for benefit of creditors executed by said Eugene A. Blair to defendant Thomas Watts. There was judgment for plaintiff on the ground that the assignment did not state the kind of business, or the place where the assignor was in business at the time of the assignment. Defendants appeal.

Kavanagh to distribute among his next of kin, within 10 days from the service of a copy of the order, the sum of $9,062.85, after deducting $75 from the share of each person to provide for the expenses ’of an appeal by another party, and, in case of default on their part, then directing their punishment for a contempt upon the filing of an affidavit of such default. Code-Civil Proc.

Action by George Coppell and others against Paul Phillipson to recover on an acceptance of'defendant.

Action by Charles H. Pratt, manager of the Emma Abbott Grand-Opera Company, against Agostino Montegriffo. Defendant appeals from an order continuing a preliminary injunction restraining him from violating his contract witii plaintiff.

An action by the attorney general to vacate the charter of the Atlantic Avenue Bailroad Company of Brooklyn. A demurrer to the complaint was sustained, and final judgment directed in favor of defendant. Plaintiff appeals. Laws j$T. Y. 1887,-c. 529, § 2, provides that “it shall be a misdemeanor for any officer or agent of any such corporation [street railroad company] to exact from any of its employes more than 10 hours labor” per day.

■ An action by Carl R. E. Heyne against John Doerfler, as executor of Maria p. Arlt, brought under the statute relating to claims against estates of deceased persons. The referee reported in favor of plaintiff, and defendant appeals. Code Civil Proc. IT. Y. § 829, forbids a party to be examined in his own behalf against the executor of a deceased person “concerning a personal transaction or communication between the witness and the deceased person.”

Action by Manly A. Ruland against the Canfield Publishing Company on a promissory note made by defendant and indorsed by the payee to plaintiff. Defendant is a domestic corporation, and has its office in New York city. Its president and secretary attend at said office for the purpose of transacting the business of the company. The summons in the action was served on one Ernest Young, it being contended that he was the managing agent of defendant.

Actions by Irving H. Rich against Herbert A. Roberts and Delia G. Rich for the value of services rendered, and by William A. Rich against the same defendants on a promissory note. Defendant Roberts moves that the judgmenfc rendered therein be vacated as to him. Code Civil Proc.

<p>Ejectment—-Title to Support—Powers in Trust.</p> <p>C. conveyed mortgaged property to R., her heirs, etc., in trust to receive the income, and apply it to the use of O. for life, and after her death to convey the property to C.’s children and grandchildren. Held that, under 1 Rev. St. R. T. p. 729, § 59, providing that land to which a power in trust relates shall remain in or descend to the persons otherwise entitled, subject to the execution of the power, R.’s power to convey not having been exercised, the legal title to the land passed to the purchaser at the sale under the mortgage during C.’s life, and C.’s children and grandchildren, after her death, had no such title as would support an action of ejectment. Following Townshend v. Frommer, 5 R. T. Supp. 442.</p>

Action by John Wallace against George Nodine. Plaintiff had a verdict for $141.72, and from a judgment therein, and order denying a motion for a new trial on the minutes, defendant appeals. The action was for taking and selling personal property alleged to belong to the plaintiff.

Action by Frank Johnson against the Netherlands American Steam Navigation Company, to recover for personal injuries alleged to have been sustained through the negligence of defendant while plaintiff was assisting to unload its vessel. Plaintiff was a longshore-man, and was employed by one Lithman, a stevedore, who had a contract with defendant for the discharge of the cargo.

Action by Charles B. Linton against the Unexcelled Fire-Works Company. There was a verdict for plaintiff for $3,367, and from the judgment entered thereon defendant appeals.

Richmond county. An appeal by George P. Ockershausen, executor of the late Adolphus F. Ockershausen, from an order, made on the petition of Henry A. Ockershausen, directing him to make partial distribution, and to convey land to the heirs of his testator.

Action commenced by Margaret Williams to recover for loss of rent of her bouses in Grand avenue, Brooklyn, caused by the erection and operation of the Brooklyn Elevated Bailroad. Plaintiff having died, her executor, Patrick Williams, was substituted as plaintiff. There was a verdict for $6,875, and from the judgment entered thereon defendant appeals.

A proceeding to determine the validity of a claim made by Margaret T. Johnson against the estate of her husband, Martin G. Johnson, and referred under the statute, tried before a referee, who reported in favor of the claim. The executors appeal.

Action by Frederick Beck and Charles E. Bunk against Mary G. Pinkney for specific performance. There was judgment for the defendant, and the plaintiffs appeal. The opinion of Mr. Justice Ingraham, filed at special term, was as follows:

Ejectment by Etta Schuck against Dora P. Shook. Plaintiff demurs to the answer on the ground that it does not state facts sufficient to constitute a defense.

At chambers. Action by Frederick G. Corning against Samuel L. Boosevelt. Defendant’s time to answer was twice extended by consent after service of the summons and complaint. At the expiration of the second extension defendant made an affidavit of merits and filed it in.the clerk’s office, but failed to serve a copy on plaintiff.

At chambers. Action by Charles H. Pendergast against John Dempsey. Plaintiff having obtained a judgment, and execution having been returned unsatisfied, supplementary proceedings were instituted, a subpoena duces tecum addressed to Dempsey & Carroll, a corporation, with which defendant appeared to have had dealings, and a subpoena, were served on Charles A. Bichardson, the secretary of the company, in order to obtain certain disclosures.

At chambers. Action by Mary E. Perine against Charles B. Hall as drawer, and Edwin B. Wiggins as indorser, of a draft. Defendant Wiggins alone answered, and issue was joined thereon. After the cause had been noticed for trial, the attorney for the answering defendant served a notice on plaintiff that he withdrew his answer.. Afterwards, on the day on which the cause was noticed for trial, defendants failed to appear, and an inquest was had against them.

Certiorari on the relation of the Western Union Telegraph Company against Michael A. Terney and others, assessors of the city of Troy, to review an assessment. Erom a judgment for defendants, relator appeals.

<p>James H. Meade was indicted and convicted for violating Pen. Code N. Y. § 292, as amended by Laws N. Y. 1886, c. 31, which is as follows: “A person who employs or causes to be employed, or who exhibits, uses, or has in custody, or trains for the purpose of the exhibition, use, or employment of, any child apparently or actually under the age of sixteen years, * * * in peddling, singing, or playing upon a musical instrument, or in a theatrical exhibition, or in any wandering occupation, * * * is guilty of a misdemeanor. ”</p>

Action by Robert McDonald and others against Simon D. Heineman and others. Plaintiffs moved to vacate a default entered on their failure to prosecute when the case was called. The motion was denied, and plaintiffs appeal.

Action by George W. Carr against Harriet R. Tracy. Defendant appeals from an order denying motion to set aside the alleged service of the summons. The affidavits for and against the motion were numerous and conflicting.

Action by Andrew J. Shiels and others against Sigismund B. Wortmann and Margaret Smith. An extra allowance was granted to defendants in pursuance of a former decision of the general term, and plaintiffs appeal from such order, and move for a rehearing of the former appeal. For former report, see 8 H. Y. Supp. 799.

The writ of certiorari in this case was issued, upon the relation of Henry Waterman against H. B. Schellenger and others, highway commissioners of the town of Southold, in the county of Suffolk, to review their determination in laying out a highway through the inclosed lands of relator.

<p>Appeal from special term, Fulton county.</p> <p>Action by James W. Green and George R. Hannon against Abijah Weston and Charles Weston.</p>

<p>Appeal from tenth district court.</p> <p>Action by John Gilligan against Allston Gerry and another.</p>

<p>Appeal from jury term.</p> <p>Action by Samuel H. Huxford against Matilda S. Stoddart.</p>

<p>Motion to resettle order dated first Monday of December, 1887.</p> <p>Action by George W. White against Mary Reed, as executor, etc., and another.</p>

<p>Appeal from jury term.</p> <p>Action by William Wills against the Union Bottling Company.</p>