Volume 100 — New York Appellate Division Reports

Appeal by the plaintiff, James B. Smith, from a judgment of the Supreme. Court in favor of the defendants, entered in the office of the clerk of the county of Allegany on the 23d day of December, 1903, upon the report of a referee, dismissing the complaint upon the merits.

Appeal by^ the defendant, the International Railway Company, from a judgment of the Supreme Court in favor of the plaintiff,, entered in the office of the clerk of the county of Niagara on the 29th day of April, 1904, upon the verdict of a jury for $17,750* and also from an order entered in said clerk’s office-on the 9th d,av of May, 1904, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Marion A. Holbrook, from a judgment of the Supreme Court in favor of the defendants,, entered in the office of the clerk of the county of Wyoming on the 10th day df October, 1903, upon the Verdict of a jury; and also from an- order entered in said clerk’s office on the 10th day of October, 1.903, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, The United States Fidelity and Guaranty Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 10th day of March, 1904, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 28th day of April, 1904, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oswego on the 29th day of April, 1904, upon the verdict of a jury for $300, and also from an order entered in said clerk’s office on the 12th day of April, 1904, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Edward N. Perkins and another, from an interlocutory judgment of the Supreme Court, in favor of the plaintiff, entered in the office of the clerk of the county-of Oneida on the 9th day of March, 1904, upon the decision of the court, rendered after a trial at the Oneida Special Term, overruling the defendants’ demurrer to the plaintiff’s complaint.

<p>Appeal by the defendant, The City of Geneva, from an order of the Supreme Court, made at the Ontario Trial Term and entered in the office of the cleric of the county of Ontario on the 3d day of June, 1904, denying the defendant’s.motion to set aside the verdict of. a jury in. favor of the plaintiff and for a new trial made upon the . minutes.</p>

Appeal by the defendant, The Domestic and Foreign Missionary Society of the Protestant Episcopal Church in the United States of America, from so much of a judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of the county of Monroe on the 7th day of March, 1904, upon the decision of the court rendered after a trial at the Monroe Special Term, as decrees a certain bequest to the appellant in the will of Mary…

Appeal by the defendant, the North German Lloyd Steamship Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office'.of the clerk of the county of Erie on the 29th day of April, 1904, upon the decision of the-court rendered after a trial at the Erie Trial Term, a jury having been waived.

<p>Appeal by the defendant, The Town of Somerset, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Niagara on the 9th day of February, 1903, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 9th day of February, 1903¿ denying the defendant’s motion for a new trial made upon the minutes.</p> <p>In August, 1897, the commissioner of highways of the town of Somerset opened a sluiceway in that town for repairs. The old sluiceway consisted of two rows of eighteen-inch tile, laid side by side across the highway. On the evening of August eighteenth the tile and loose dirt had all been removed from the sluiceway. The opening was twenty and twenty-three inches deép on the.wheel tracks, respectively, six feet wide, and extended across the traveled part of the highway. The highway commissioner placed five of the tile some distance south and five north of the excavation. They were placed diagonally across the highway so as to indicate that travelers were to take the west side of the road. At about eight o’clock in the evening plaintiff was driving, in a three-seated wagon with his wife and four children. The wife was seated on the rear seat, some of the children in the center seat. Plaintiff had no knowledge that the sluiceway was torn up or that there were tile placed on the roadway., The night was dark and at the time of .the accident a rain storm was in progress. Plaintiff could not see the tiles, and as he came to the point of the accident drove into the tiles, his horses went into and through the sluiceway and the forward part of the wagon settled into the sluiceway, stopping the wagon with" a smash and jolt. Plaintiff at once got out and held the horses, they,, as he says, being restive and the neck yoke up against their throats.</p> <p>Plaintiff’s wife attempted to alight after the children had all got out of the wagon, and in doing so placed her hand upon"the middle seat and was thrown into the ditch, sustaining the injuries complained of. .</p> <p>The plaintiff brought this action for loss of services of his wife, occasioned by the injuries received by her .as above stated, and upon the trial recovered a verdict of $2,000.</p> <p>From the judgment entered thereon, as well as from the order denying defendant’s motion for a new trial on the minutes, this appeal is brought.</p>

<p>Negligence — liability of a railroad to an individual injured through its failure to keep the street in which ils tracks are in repair — it cannot be discharged by a contract made with the city without legislative sanction.</p> <p>A contract executed between a city and a railroad company, without legislative sanction, by which the city assumes to relieve the railroad company from, the duty imposed upon it by section 11 of the Railroad Law (Laws of 1890,-chap. 565) to keep the portions Of a city street occupied by its tracks in such a condition of repair that the public can pass over it in safety, is not effective to relieve the railroad company from liability to an individual whose horse is injured because of the railroad company’s failure to keep in repair the portion of the street occupied by its tracks.</p>

<p>Appeal by the plaintiff, John H. Millard, from certain portions of a judgment of the Supreme Court in favor of the defendant, Julius Breckwoldt, entered in the office of the clerk of the county of Herkimer on the 30th day of March, 1904, upon the decision of the court, rendered after a trial before the court without a jury, at the Herkimer Trial Term, modifying a temporary injunction theretofore granted upon the application of the plaintiff, so as to permit the removal by the defendant of certain logs and timber mentioned in the complaint in the action.</p> <p>Section 129 of the Tax Law (Laws of 1896, chap. 908), which is cited in the opinion, provides as follows: ' ■ '</p> <p>“§ 129. Prohibition of the despoliation of lands sold.—Heither the owner, occupant nor any other person shall have the right to despoil any lands sold for taxes by the comptroller of their value, by the removal of buildings or by cutting, removing- or destroying timber, or other valuable products,' growing, existing or. being thereon at the time of sale. The purchaser of any wild, vacant, or-unoccupied land at the sale thereof by the comptroller, whose bid therefor shall have been fully paid, or his assigns or representatives may at any time before obtaining his deed, causé to be served a notice on any person despoiling such lands or interested in such ' despoliation, either personally or by leaving the same at the residence of such person, ór with any member of his family of suitable age and discretion. The notice shall describe such lands, substantially as sold, shall state that It was sold for taxes by the comptroller, and that ail action to recover the value of the buildings, timber^ or other products destroyed or removed therefrom, after the date of sale thereof, will be instituted against all persons concerned in such despoliation. If such lands shall not be redeemed, every persoú engaged or interested in making such despoliation, upon whom service of the notice shall have been made, shall be liable to pay to the holder of thé tax sale certificate therefor the full value' of. any building so destroyed or removed therefrom, and of all the timber, bark, or other products so cut or destroyed or removed therefrom, from the date of the sale of such land to the termination of such action, and may be restrained by injunction from committing any waste thereon.” .</p>

Appeal by the defendant, The Supreme Tribe of Ben Hur, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cattaraugus on the 5th day of July, 1904, upon the report of a referee.

<p>Appeal by the defendants, Antonio Mazza and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the coiinty of Cattaraugus on the 23d day of December, 1903, upon the report of a referee.</p>

<p>Appeal by the defendant, Samuel D. Purdy, from a judgment of tlie Supreme Oourt in favor of the plaintiff, entered in the office of the cleric of the county of Genesee on the 2d day of May, 1904, upon the report of a referee.</p> <p>The action was commenced on the 26th day of July, 1901, to recover upon two promissory notes made by the defendant Samuel D. Purdy and bearing the indorsement of the defendant, the Le Roy Gas and Electric Company. The issues in the action were referred to a referee to try and determine, who found as above stated, and from the judgment entered upon his report this appeal' is taken by the defendant Samuel D. Purdy.</p>

<p>Appeal by the defendant, the Glens Falls Insurance Company, from that part of a judgment of the Supreme Court, entered in the office of the cleric of the county of Yates on the 15th day of June, 1904, which was entered upon the verdict of a jury in favor of the plaintiff, a nonsuit having been granted by the court as to a portion of the complaint, and also from an order entered in said clerk’s office-on the 9th day of June, 1904, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Plea of the Statute of Limitations in a mortgage foreclosure suit — what allegation is sufficient — what payment by a widow having a dower interest is ineffective as to her children — effect of a quitclaim deed given by the holder of a mortgage — reversal of a judgment in an equity suit — when the improper admission or rejec- • tian of evidence does not require it. • '</p> <p>An answer interposed in an action commenced September 16,1902, to foreclose a mortgage which became due October 1,1852, alleging, “ Tenth. That since the 31st day- of May, 1864¡ no payments of principal or interest have been made to apply upon said bond and mortgage, and more than twenty (20) years have elapsed since the last payment was made, and sgid bond and mortgage are no longer a legal or enforceable claim under the statutes made and provided,” is a sufficient plea of the twenty years’ Statute of Limitations.</p> <p>Where it appears .that upon the death of the owner of the mortgaged premises in 1854 the title thereto passed to Ms three children, subject to the dower interest of their mother, a payment upon the mortgage made by the widow, who was not liable upon the bond which the mortgage was given to secure, to one of the three children, who was then, the owner of the mortgage, without the knowledge or authority of the other two children, is not effective,- as against the other two children, to prevent the Statute of Limitations from running against an action to foreclose the mortgage. ,</p> <p>A quitclaim deed of the mortgaged premises executed and delivered by the child owning the mortgage to one of the other children is an effectual bar to a subsequent action by the child owning the mortgage to foreclose the same.</p> <p>A judgment rendered in an equity action will not be reversed for errors in ¡¡he admission or exclusion of evidence, if, disregarding or considering, as the case may- be, such evidence, the remaining evidence sufficiently supports the judgment.</p>

Appeal by the defendant, Lewis S. Chase, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Herkimer on the 26th day of December, 1903, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s.office on the 14th day of December, 1903, denying the defendant’s motion for a new trial made upon the minutes.

<p>■ Appeal by the defendant, The United States Fidelity and Guaranty Company, from a judgment of the Supreme-Court in favor of the plaintiff, entered, in the ,ofñc¿ of the clerk of the county of' Onondaga on the 29th day of December, 1903, upon the report of a referee." 1</p>

Appeal by the plaintiff, Carrie M. Henion, from a judgment of the Supreme Court in favor of the defendant,, entered in the office of the clerk of the coiinty of Orleans on the 4th day of April, 1904, upon the report of a referee dismissing the complaint upon the merits..

Appeal-by the defendants, Eli M. Upton and another, from a judgment of the Supreme' Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe, on the- 3d day of May, 1904, upon the verdict of a jury.rendered by direction of the court, and also from an order entered in said clerk’s' office on the 6th day-of May, 1904,.denying the defendants7 motion for a new trial made upon the minutes.

<p>Appeal by the defendant,' The Continental Insurance Company of the City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 30th day of June, 1904, upon the decision of the court rendered after a trial at the Erie Trial Term, a jury hay ing been waived.</p>

<p>' Appeal by the defendants, Carrie H. Fordham and another, from an order of the Supreme Court, made at the Monroe Trial Term and entered in the office of the clerk of the county of Monroe on , the 11th day of July, 1904, setting aside the verdict of a jury theretofore rendered in favor of the defendants and granting the plaintiff’s motion for a new trial of the action.</p>

<p>Appeal by the defendant, the Dexter Sulphite Pulp and Paper Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Jefferson. on the 16th day of May, 1904, upon the verdict of a jury for $8,500, as amended by an order entered in said clerk’s office on the 6th day of June, 1904, and also from an order entered in said clerk’s office on the 13th day of May, 1904, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the plaintiff, The City of Rochester, from an order of the Supreme Court, made at the Monroe Special Term and entered ■in the office of the cleric of the county of Monroe on the 6th day of' Jnljj 1904, directing a judgment in favor of the plaintiff for ■$18-2.47, the amount of a tax levied and assessed by the plaintiff against the defendant, for the year 1902, and denying so much of the plaintiff’s motion for judgment as asked that there be added to said sum penalties and interest.</p> <p>• The action was commenced on the 5th day óf September, 1903, - to recover $182.47, the amount of a tax duly levied and assessed by the plaintiff against the .defendant for the .year 1902, together' with five per cent added thereto and twelve per cent-upon such total sum from the 15th day of September, 1902.1 The .defendant demurred to the complaint upon the ground that it appears upon the'face-thereof that it does not state facts sufficient to constitute a causé of action. The demurrer was overruled arid judgment ivas directed accordingly, with costs to the plaintiff, but rvith leave to the defendant upon payment of costs to withdraw the demurrer and answer within twenty days, and that in case of the failure of the- defendant so to withdraw said demurrer and to ains.wer and pay the costs, final judg: rnent be entered against him for the relief demanded in the complaint.</p> <p>Instead of entering final judgment in accordance with the direction; contained In the interlocutory judgment,, there being a controversy as to the amount, the plaintiff made a-motion at Special Term for judgment in accordance with the prayer of its complaint-, and upon the decision of such motion the order appealed from was made. • While Undoubtedly-the plaintiff had a light Under the terms of the interlocutory judgment to , enter judgment .for the relief demanded in the complaint, the defendant having failed to answer, both' parties seem to have consented that the question. involved might be determined upon the motion for judgment made in the manner indicated, the question being whether in • this action the -plaintiff is entitled to recover in addition to $182.47, the tax originally assessed against the defendant, which he concedes the plaintiff .is entitled tp, five per cent thereon and twelve per cent per annum upon -such, total sum from- September 15, 1902.</p>

Appeal by the defendant, The Buffalo Union Furnace Company, from a judgment of the County Court of Erie county in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 24th day of June, 1904, upon the verdict of a jury for $500, .and also from an order entered in said clerk’s office on the 24th day of June, 1904, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Patrick W. Cullman, as State Commissioner of Excise of the State of New York, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Ontario on the 12tli day of April, 1904, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 15th day of April, 1904, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the plaintiff, .Patrick W. Oullinan, as State Commissioner of Excise of the State of New York, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Erie on the 2d day of July, 1904, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 22d day of June, 1904, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by the petitioner, Isaac S. Dill, from an order of the Supreme Court, made at the Erie.Special Term and entered in the office of the clerk of the county of Erie on the 29th day of August, 1904, denying the petitioner’s application for a writ of mandamus.

Motion by the plaintiff, Agnes Craven, for a new trial upon a case containing exceptions, ordered to be heard at the Appellaté Division in the first instance upon the dismissal of the complaint by direction of the cotirt after a trial at the Erie Trial Term.’

' Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the County Court of Ontario county in favor, of the plaintiff, entered in the. office of the clerk of the county of Ontario on the 24th day of March, 1904, upon the verdict of a jury for $900, and also from an order entered. in said clerk’s office on the 24th day of March, 1904, denying the defendant's motion for. a new trial made upon the minutes.

Appeal by Andrew Driskel, as executor, etc., of Fredericka Driskel, deceased, from a decree of the. Surrogate’s Court of the county of Erie, entered in said Surrogate’s Court on the 4th day of March, 1904, confirming the report of a referee appointed to examine the accounts of the said executor.

<p>Certiorari issued out of the Supreme Court and attested on. the 15th day of August, 1904, directed to Joseph L. Whittet and others, as civil service commissioners, and constituting the municipal civil service commission of the city of Buffalo, and others, commanding them to certify and return to the office of the clerk of the county of Erie all and singular their proceedings had in connection with placing the position of battalion chief of the fire department of the city of Buffalo in Schedule B or the competitive class of the civil service. '</p>

<p>Separate appeals by the plaintiff, The Hunter Smokeless Powder Company, and by the defendants John J. Sclileyer and others, from portions of a judgment of the Supreme Court in favor of the defendant Robert H. Hunter, entered in the office of the clerk of the county of Monroe on the 6th- day of August, 1903, upon the decision of the court rendered after a trial at the Monroe Special Term.</p> <p>Said judgment conditionally directs the respondent Hunter to write out and deposit a formula for.the manufacture of smokeless powder. It also adjudicates as between defendants their respective rights to the capital stock of the plaintiff and provides for the cancellation of certain certificates of said- stock theretofore issued.</p> <p>The plaintiff appeals from that portion of the judgment which makes conditional the deposit of said formula. The individual appellants appeal from that portion which determines their rights in the capital stock and requires the cancellation of former, certificates.</p>

<p>Action on quantum meruit for work done under a contract, violated by the defendant—when interest is allowable.</p> <p>The work done under a contract for the construction of a water power plant for a village having been destroyed before the contract had been entirely completed because the plans for the work were defective, the contractors brought an action against the village upon quantum meruit. The complaint in the action alleged that during a specified time the plaintiffs had performed certain services of the value stated; that such amount became due and payable before the commencement of the action and that the defendant had neglected to pay it. The referee found that certain services had been performed and that they were of a certain value and he awarded the plaintiffs j udgment for the value but did not allow the plaintiffs interest.</p> <p>Held, that the plaintiffs became entitled to the sum which the referee found to be due prior to or at the time of the commencement of the action, and that they were entitled to recover interest upon such sum;</p> <p>That the case was not one of an unliquidated demand;</p> <p>That if a demand was necessary, the bringing of the action constituted such a demand.</p>

<p> County bonds—when authorized to pay for the construction of State roads—when they specify a definite sum to be paid at a definite date and contain an unconditional promise to pay. </p> <p>Section 9 of chapter 115 Of the Laws of 1898, relative -to the construction of.' State roads, provides as follows: “ § 9. One-half of the expense of the construction thereof shall be paid by the State Treasurer upon the warrant of the Comptroller, issued upon the requisition of such engineer, out of any specific appropriations made to carry out the provisions of this act. And one-half of the expense thereof shall he a county charge in the first- instance, and' the same'shall he paid by the county treasurer of the county in which such highway or section thereof is, upon the requisition of such engineer-, hut the amount so paid shall he apportioned by the board of supervisors, so that if the same- has been built upon a resolution of said board without petition, thirty-.five per centum of the cost of construction shall be a general cdunty charge, and fifteen per centum shall be a charge upon the town in which the improved highway or section thereof is located, and if the same has been built upon a resolution of said board after petition as provided in section two, thirty-five per centum shall be a general county charge and fifteen per centum shall be assessed upon and paid by the owners of the lands benefited in the proportion of the benefits accruing to said owners as determined by the town assessors in the next section hereof.”</p> <p>Subdivision 6 of section 12 of the County Law (Laws of 1892, chap. 686) gives the board of supervisors of a county power to '“Borrow money when they deem it necessary, * * * for the funding of any debt of the county not represented by bonds, and issue county obligations therefor, and for other lawful county uses and purposes; and authorize a town in their county to borrow money for town uses and ¡imposes on its credit, and issue its obligations therefor, when, and in the manner, authorized by law.”</p> <p>Held, that, reading the two statutes together, the board of supervisors of a county, in which a road is constructed pursuant to the provisions of chapter 115 of the Laws of 1898, has power, notwithstanding that such power is not expressly conferred by the act of 1898, to issue bonds for the payment of its share of the cost of such road, including the fifteen per cent of such cost which is primarily charged upon the county but is ultimately to be paid by the town.</p> <p>Bonds issued by a county for such a purpose provided that the county would pay to the obligors or their ' ‘ certain representatives, successors or assigns, On the first day of July, 19—, for which payment well and truly to be made the said County of Ontario binds itself by these presents.” ’ Then fqllows a condition, as follows: “ The condition of this obligation is such that if the above bounden County of Ontario shall well and truly pay or cause to be paid to the above-named --:-, his or its certain representatives, successors or assigns, the sum of--Dollars and semi-annual interest upon all sums unpaid thereon, to be paid on the first day of January and July, as the same shall occur, at the rate of 4 per cent, per annum from the date of the last payment thereof, then this obligation shall be void: Otherwise to remain in full force and virtue. All payments of principal and interest to be made at the United States Mortgage and Trust Company, of 55 Cedar Street, New York. “' This bond is issued in pursuance of sections 12-and 14 of the County L/aw, Chapter 115 of the Laws of 1898 and its amendments, and in pursuance of resolution of the board of supervisors of Ontario County, duly passéd July 12th, 1904.”</p> <p>Under the resolution of July twelfth it was provided that the bonds should be issued in eight series of §15,000 each, maturing from July, 1906, to July, 1913; and it was not questioned but that the form of the bond would be filled in in accordance with the resolution as adopted.</p> <p>Held, that the bonds were valid in form and called for the payment of a definite sum of money on a definite date;</p> <p>That they were not subject to the criticism that the maturity thereof was not specified in the condition of the bond or that they did not contain an unconditional promise to pay.</p>

<p>-m-Appeal by the plaintiff, Joseph E. White, from á judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Monroe on the. 27th day óf June, 1904, upon the decision of the court, rendered after a trial at the Monroe Trial Term, a jury having been waived, dismissing the plaintiff’s complaint.</p>

<p>Appeal by the plaintiffs, Edgar B. Jewett and others, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 15th day of August, 1904, upon the decision of the court, rendered after a trial at the Erie Trial Term, a jury having been waived, dismissing the complaint upon the merits.</p>

<p>Appeal by the defendant,, The Syracuse Rapid Transit Railway Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 31st day of October, 1904, upon the decision of the court, rendered after a trial at the' Onondaga Special Term, overruling the defendant’s demurrer to the' plaintiff’s complaint.</p>

<p>Appeal by the defendant, The New York Central and Hudson River Railroad Company, from an order of the Supreme Court, - made at the Oneida Special Term and entered in the office of the clerk of the county of Oneida on the 15th day of August, 1904, granting the plaintiff’s motion for a -new trial on the ground of newly-discovered evidence.</p>

Appeal by the plaintiff, Joseph Genco, from a judgment of the Supreme Court in favor of the defendant Herman E. Remington,, entered in the office of the clerk of the county of Erie on the 3d day of February, 1904, upon the dismissal of the complaint as to the said defendant by direction of the court after a trial at the Erie Trial Term. .

<p>Appeal by the plaintiff, William P. Wood, from' an order of the Supreme Court, made at the Monroe Special Term and entered" in the office of the clerk of the county of Steuben on tlie 19th day of December, 1904, as resettled, denying the plaintiff’s motion to amend the complaint in the action.</p>

Appeal by Edward Maginn, an alleged incompetent person, from ¡an order of the Supreme Court, made at the Oneida Special Term •and entered in the office of the clerk of the county of Oneida on the 1st day of April, 1904, appointing a committee of his person .and estate. Also a motion by Harold L. Palmer, as Superintendent of the Utica State Hospital, and William A. Matteson to dismiss such appeal from the said order, which motion was heard with the argument of the appeal.

Appeal by the plaintiff, Frank Grant, from an order of the Supreme Court, made at the Oswego Trial Term and entered in the office of the clerk of the county of Oswego on the 18th day of November, 1904, putting the case over the term at which the trial was begun, and requiring the plaintiff to pay the defendant term fees, trial fee and taxable disbursements for the term, amounting to rixtv-nine dollars and seventy cents, within ten days.

Appeal by the defendants, John. H. McCooey and others, composing and constituting the 'municipal civil service commission of the city of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York-on the 15th day of June, 1901, granting the relator’s motion for a peremptory writ of mandamus.

<p> Surrogate's Court—power of, to issue letters upon the estate of a decedent whose will was proved in another State—ancillary letters can issue only to, or with the consent of, the foreign executor. </p> <p>The Surrogate’s Court has no power ■ to issue letters of administration with the will annexed upon the estate of a decedent whose will has been admitted to probate in another State.</p> <p>The jurisdiction of the Surrogate’s Court with respect to such wills is limited to the issue of ancillary letters testamentary, or ancillary letters of administration with the will annexed.</p> <p>Ffor can it, under section 3697 of the Code of Civil Procedure, issue even ancillary letters to a person other than the foreign executor or administrator, unless such person files with his petition the consent of the foreign executor or administrator.</p>

Appeal by the defendant, the Capron Knitting Company, from ap interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the ,clerk of the county of New-York on the 8th day of June, 1904, upon the decisión of the court, rendered after a trial at the New York Special Terra, overruling the defendant’s demurrer to the plaintiffs’ complaint.

<p>Appeal by the defendants, Helen A. Ely and others, from, a-judgment of the Supreme Court in' favor of the plaintiff j entered in. the office of the clerk of the county of New York on the 18th day •of April, 1904, upon the report of a referee.</p> <p>The action is brought to obtain against the defendants an injunction compelling them to remove alterations made in the premises No. 22 West Fortieth street, contiguous to the plaintiff’s property, for violation of a covenant in the deed of a referee in*a partition suit in . 1872 whereby only a private dwelling house could be erected upon this land, the plaintiff alleging that the defendants have made the premises into stores and are so using them.</p> <p>Both the plaintiff’s property and that belonging to or used by the defendants were sold in 1872 by a referee in a partition suit to one Sober. The deed to Sober as well as the deeds then given to other purchasers contained the following covenant: The'party of the second part, his heirs or assigns, shall not at any time hereafter erect ■* * * upon the hereby granted premises * * * any'building other than a brick or stone private dwelling house not less than three stories in height; * * " * • the said covenant * * * to * * * run with the land * • * * ”</p> <p>It was not shown that the parties to the partition suit consented to the provision in the judgment directing the referee to insert such a covenant in the deeds, and it appears that some of the parties were infants represented by guardians.</p> <p>Sober subsequently deeded lot No. 20, lot No. 22 and a third lot to O’Reilly Brothers, the deed containing no such covenant; and thereafter O’Reilly Brothers deeded lot No. 20 without the restriction, and by mesne conveyances not containing the covenant it has come into the plaintiff’s possession. O’Reilly Brothers also conveyed without restriction lot 22 to other parties, and by mesne conveyances not containing the covenant it has come into the possession of certain of the defendants.</p> <p>Proof was given tending to show that lot No. 22 has been remodeled to make it fit in part for use as stores, and that it is so used in part, and the referee held that there was a violation of the covenant and that an injunction should issue. The judgment entered'on the referee’s report granted an injunction which compels the defendants to put the premises back into a proper condition for a-dwelling house.</p> <p>From such judgment the defendants appeal.</p>

Appeal by the plaintiff, The Mayor, Aldermen and Commonalty of the City of Hew York, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the-county of Hew York on the 26th day of October, 1903, upon the verdict of a jury rendered by direction of the court after a trial at. the Hew York Trial Term, and also from an order entered in said clerk’s office on the 9th day of Hovember, 1903, denying the plaintiff’s motion for a new…

■ Appeal by the defendant, the United States Trust Company of New.York, as trustee under the last will and testament of James Phalen, deceased, from. an interlocutory judgment of the Supremo Court, in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17tli day of June, 1904, upon the decision, of the court, rendered after a trial at the New York Special Term,,. overruling the said defendant’s demurrer to the complaint.

Appeal by the defendant, Edward J. Greacen, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 5th day of April, 19Of, upon the decision of the court, rendered after a trial at the Hew York Special Term, overruling the defend- * ant’s demurrer to the plaintiff’s complaint.

<p>Insurance — when a house is not Vacant or unoccupied—request by both parties for a verdict, neither ashing toga to the jury.</p> <p>In an action brought' to recover upon a policy of fire insurance covering a frame building, the insurance company repudiated liability under a clause contained in the policy providing that “This entire policy, unless, otherwise provided by agreement indorsed hereon or added hereto, shall he void * * * if a building herein described, whether intended for Occupancy by owner or tenant, be or become vacant or unoccupied and so remain for ten days.”</p> <p>Evidence was given tending to show that the plaintiff and her husband occupied another house situated upon the same lot as the frame building destroyed by fire; that the latter building contained living apartments and was occupied by tenants until within a few months previous to the fire; that when the tenants moved out the plaintiff’s husband placed a lounge in the building and slept therein not less than five times'a week from that time until the fire; that two days prior to the fire the. building was again rented and that on the night of that day the plaintiff’s husband slept therein. He did not, however, sleep in the building on the night immediately prece'difig the fire, although he went around the house the evening before the fire and saw that everything was right. He carried on his business upon the premises and was around the house all day.</p> <p>Held, that both sides having moved for the direction of a verdict and -neither party having requested the submission of any question to the jury, it was proper for the court to direct a verdict for the plaintiff, as the building was neither vacant nor unoccupied within the meaning of the quoted clause of the policy;</p> <p>That under such a clause a house does not become vacant or unoccupied as long • as there are persons living in the house for some portions of each day.</p> <p>Tan Brunt, P. J., and McLaughlin, J., dissented.</p>

Appeal by the defendant, Russell Sage, from a judgment of the-Supreme Court in favor of the plaintiff, entered in the office of the-clerk of the county of New. York'on the 22d day of March, 1904,, upon the verdict of a jury, and also from an order entered in said clerk’s office on' the ,22d day of March, 1904, denying - the defendant’s motion for a new trial made upon the minutes.

<p>Negligence — death of one driving an automobile which rum into a fence erected to guard the New Tork subway excavation and falls into such excavation—for what hole in the street alleged to have caused the automobile to swerve from its course the city of New York is not liable — contributory negligence of the automobile driver.</p> <p>In an action brought against the city of New York to recover damages resulting from the death of the plaintiff’s intestate, it appeared that while the deceased was operating an automobile along Seventh avenue in the city of New York, in turning from one of the street car tracks laid on that street to the other, he ran into the fence erected at the side of the, latter track for the purpose of guarding the excavation which had been made in the street for the purpose of building the underground railroad. The plaintiff contended that the accident was due to the presence in the pavement between the tracks of a hole not exceeding five or six inches in depth into which the wheels of the automobile slipped, causing it to swerve into the fence.</p> <p>It appeared that the surface railroad had laid its tracks in the street under legislative authority and that the Underground railroad was being built under similar authority, and that the city had no control over either enterprise. It also appeared that in the work of constructing the underground railroad the surface of the street was being constantly changed. There was no evidence that any hole or depression existed in the street prior to the time when the subway contractors interfered with it.</p> <p>Held, that assuming, although the evidence did not justify a finding to that effect, that the accident was due to the presence of the hole in the pavement of the street, the existence of such hole did not, in view of the work which was being done in' the street, render the city chargeable with negligence;</p> <p>That it appearing that the intestate was familiar with the locality and with the ' conditions there existing, and tfiat he attempted to pass from one track to the other, when traveling at a rate of speed which rendered it probable that he would be thrown into the excavation unless the machine turned at the proper moment, a finding that he was free from contributory negligence could not I be sustained.</p>

<p>Negligence — leaving the sidewalk, when in sight of a ra/pidly approaching car, and without looking again walking in front of the car, constitutes contributory</p> <p>In an action brought to recover damages for personal injuries it appeared that the plaintiff, on coming to the corner of a street upon which the defendant operated a street railway, at about nine o’clock in the evening, looked and saw a south-boimd car about three-quarters of a block away approaching rapidly; that he then started across the street and did not look again until he was in the center of the south-bound track, when the car was too close to enable him to avoid- being struck by it.</p> <p>Held, that, aside from the question of the defendant’s negligence, the evidence was not sufficient to sustain a finding that the plaintiff was free from contributory negligence;</p> <p>That it was entirely clear that the accident was caused by the act of the plaintiff in stepping in front of the car when it was so close to him that no act of the motorman could have prevented the accident.</p>

Appeal by the defendant, J, George Flammef, from an interlocutory judgment of the Supremé Court in favor of the. plaintiff, entered in the office of the clerk of the county of New York on the 21st day of Hay, 1904, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant’s demurrer to the plaintiff’s complaint.

<p>Executory contract to gire a mortgage — it is not an equitable mortgage — the recording of it is not notice — when a client is chargeable with the knowledge of his attorney not obtained in his service.</p> <p>March 20,/ 1899, during the pendency of actions to foreclose mortgages upon premises owned by one Romeyn, the latter executed to the firm of Mathews, Grange & Co., to which she was indebted, an instrument providing as follows: 1 “In the event that said foreclosure proceedings should for any reason be set aside or discontinued, then it is further agreed by the said Harriette S. D. Romeyn, that upon demand, she will execute a proper bond and mortgage, to secure the said Mathews, Grange & Company, the payment, within six (6) months, of such amount as shall to that date be due them.”</p> <p>The instrument was recorded April 4, 1899, and the foreclosure action mentioned therein was discontinued April 21, 1899, but the mortgage agreed to he given was never in fact executed. Subsequently Romeyn conveyed the premises to one Bowers, who, in turn, mortgaged them to the Loan Commissioners of the United States for the State of New York, which body conveyed them to one Damainville. Damainville, when he took title, executed an instrument declaring that he purchased subject to whatever rights one Mathews had therein as assignee of the instrument dated March 20, 1899. Damainville subsequently mortgaged the premises to one Decker, and finally conveyed tile property to her.</p> <p>In an action brought by Mathews against Damainville and Decker to foreclose, as an equitable lien, the instrument dated March 20, 1899, it was conceded that no personal notice of the existence of the instrument had been given to Decker, but it appeared that Decker's attorney, when acting for Damainville, received notice of the existence of ■ the instrument of March 20, 1899. It did not, however, appear that he had such instrument in mind when the property was conveyed to Decker.</p> <p>Held, that a judgment of foreclosure and sale rendered, in favor of the plaintiff should be reversed;</p> <p>That the instrument of March 20, 1899, was at the time it was recorded a mere . executory contract to give a mortgage upon the happening of a future event, to wit, the discontinuance of the pending foreclosure actions; that it was not an equitable mortgage, and no action could have been maintained to foreclose it;</p> <p>That at the time it was recorded such instrument did not constitute a conveyance within the meaning of the Recording Act (Laws of 1896, chap. 547, §§ 240, :241), and that such record was not, therefore, constructive notice of its existence to Decker;</p> <p>That Decker was not chargeable with the knowledge which her attorney had acquired when acting for Damainville, it not appearing that such knowledge was present in his mind when the property was'conveyed to, Decker;</p> <p>That, to bind a client with knowledge which his attorney acquired in some' other transaction, not -relating to his client’s business, the burden is upon the person claiming such notice to show that such knowledge was present in the mind of the attorney at the time he acted for the client.</p> <p>Patterson and Laughlin, JJ., dissented.</p>

Appeal by the defendant, Jacob Harber, from a judgment of the Court of Special Sessions of the city of New York (Children’s Part),entered on the 6th day of April/1904, convicting the defendant of the crime of petit larceny; also (as stated in the notice of appeal) from an order denying said defendant’s motion to set aside tlie judgment appealed from and for a new trial, and also, from an order denying a motion in arrest of judgment.,

Appeal by the defendant, Augustus R. Keller, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of October, 1904, as resettled by an order entered in said clerk’s office on the 21st day of November, 1904, denying the defendant’s motion to vacate an order theretofore entered in the action, adjudging the defendant in contempt of court.

Appeal by the plaintiff, Henry R. Worthington, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 28th day of Hay, 1904, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 27th day of Hay, 1904, denying the plaintiff’s motion for a new trial made upon the minutes. ■ '

Appeal by the defendants, Jacob F. Wittemann and another, composing the firm of Wittemann Brothers, from a judgment of the Supreme Qourt in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 4th day of February, 1904, upon the report of a referee.

<p>■Creditor's action — admissibility of a judgment roll, in an action involving the ownership by the judgment debtor of property, the proceeds of which it was alleged were fraudulently transferred, by him — a general objection to evidence competent as to some of the transferees only—a judgment in an equity action, when not ■set aside for error in the admission of evidence —judgment limited to one only of several alleged fraudulent transfers—effect of the fraudulent transferee hawing disposed of the property—when a personal judgment against such transferee is proper—equity may adapt the relief to the pa/riieular circumstances.</p> <p>Jin an action brought against William Brhe, his mother, Elizabeth Erbe, the elder, and his sister, Elizabeth Brhe, the younger, it appeared that in 1903 the plaintiff recovered a judgment for legal services rendered by him to the defendant William Erbe, as counsel in an action brought by one Sheehan ■ against the said William Erbe to set aside an assignment of a lease executed by Sheehan to Erbe; that an execution issued on the plaintiff’s judgment was returned unsatisfied; that a short time prior to the rendition of the plaintiff’s judgment the defendant William Erbe transferred certain moneys and personal property to his mother, Elizabeth Erbe, the elder, and his sister, Elizabeth Erbe, the younger. One of such transfers made to his mother consisted of money derived from the leasehold interest which had been assigned by Sheehan to William Erbe, and the court found, on sufficient evidence, that this money belonged to William Erbe individually, and that the transfer thereof to his mother was in fraud of creditors.</p> <p>JSeld, that the judgment roll in the action brought by Sheehan against William Erbe was admissible against the latter, for the purpose of showing his ownership of the lease and of refuting his claim that he held the lease as trustee of his mother;</p> <p>'That such judgment roll was also admissible against the other defendants, for the reason that the matter contained in the judgment roll tended to contradict the testimony given by William Erbe, when sworn as a witness on behalf of the other defendants, and was, therefore, admissible against such other defendants as affecting the credibility of one of their witnesses;</p> <p>'That, assuming that the judgment roll was only admissible as against Willianj Erbe, the trial court properly overruled a general objection to its admission, as, if the other defendants contended that the judgment roll was not admissible against them, it was their duty to ask the court to limit the effect of the admission of the judgment roll and not to reject it entirely;</p> <p>That a judgment rendered in an equity action will not he reversed because of the admission of incompetent evidence, if there is an abundance of competent evidence to sustain it;</p> <p>That, as the plaintiff was the only creditor o£ William Evbe" seeking relief, and. as the moneys fraudulently transferred to his mother as above set forth were 'sufficient • to satisfy the plaintiff’s claim, the trial court properly limited the. application of the judgment to such moneys, and was not obliged to set aside ■ all the transfers;</p> <p>That, so far as the liability of the mother for such moneys was concerned, it was. not material that she subsequently mingled such' money with other moneys and assented to their deposit in a bank in the name of another person;'</p> <p>That the facts were sufficient to sustain á personal judgment against the-mother; for an amount sufficient to satisfy the plaintiff’s claim;</p> <p>That a court of. equity has power to adapt its relief to the exigencies of a particular case and may award a personal judgment against a party in lieu of' setting aside a transfer where the facts establish the right to such personal, judgment. '</p> <p>Ingraham, J., dissented.</p>

<p>Appeal by the defendant,- the Rubber Goods Manufacturing Company, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the' clerk of the county of New York on the 10th day of November, 1904, as denies the defendant’s motion to strike out certain portions of the plaintiffs reply to the ■ counterclaims set forth in the defendant’s ¡.'answer.</p>

Appeal by the defendant, the Rubber Goods Manufacturing; Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the-, county of New York on the 1st day , of November, 1904, dényingthe defendant’s motion to strike out certain portions of the complaint -as irrelevant, redundant, inconsistent, indefinite and uncertain,, or, in the alternative, to have the complaint made definite and certain in various respects. -

Appeal by the plaintiff, Frederick Morris, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 3d day of March, 1904, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 11th day of February, 1904, denying the plaintiff’s motion for a new trial made upon the minutes. ■

■ Appeal by the defendants, Andrew J. Davies and others, from an interlocutory judgment of the Supreme Court- in favor of the plaintiff, entered in the office of the clerk of the county of New York oil the 4th day of May, 1904, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the said defendants’ separate demurrers to the amended complaint.

.Appeals by the plaintiff, Eliza Pringle, and by the defendants* Esther De Ptiy'Bryan and others, from a judgment of the Supreme Court in favor of the defendant Fannie Louise Burroughs, née Temple, individually and as executrix' of and trustee under the last will and testament of Jose'ph Hamilton Bryan, deceased, entered in the office of the clerk of the county of New York on the 6th day of February, 1904, upon the verdict of a jury rendered by direction of the court after a…

Appeal by the Comptroller of the State of New York from an order óf the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the l'7th day of February, 1904, vacating and setting aside a previous order of said Surrogate’s Court fix- ■ ing the amount of a tax tobé assessed under the act in relation to taxable transférs, and remitting to thé appraiser the report theretofore filed by him for further consideration and report.

Appeal by the defendant,' William H. Jackson, individually and as executor, etc., of John H. Ha-nkinson, deceased,, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 16th day of December, 1903, upon the report of a referee.

Appeal by the plaintiff, George S. Stoddard, from an interlocutory judgment of the Supreme Court in favor of the defendant, Bell .& Company, Incorporated, entered in the office of the clerk of the county of Hew York on the 2d day of July, 1904, upon the decision of the court, rendered after a trial at the Hew York Special Term, sustaining the said defendant’s demurrer to the plaintiff’s complaint, and also from an order entered in said clerk’s office, on the 27th day of…

Appeal by the defendant. Anton Stern, from an order of the .Supreme Court, made at the New York Trial Term and entered in the office of .the cleik of the county of New York on the 9th day •of July, 1903, setting aside a verdict theretofore rendered in favor •of the said defendant and granting a new trial of the action.

Appeal by the defendant, The Union Surety and Guaranty Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 1st day of April, 1904, upon the verdict of a jury rendered by' direction of the court after a trial'at the New York Trial Term.

Appeal by the plaintiffs, John F. Harris and others, copartners . doing business under, the firm name of “ J.- F. Harris,” from a judgment of the Supreme Ctiurt in favor of the'defendant Mignonette T. Buchanan, entered in the office of the cleric of the county of New York on the 13th, day of May, 1904,. upon the dismissal of the complaint by direction of the court as to said defendant after a trial at the New York Trial Term.

Appeal by the defendant, The Edison Electric Illuminating Company of Hew York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county ■of Hew York on the 19th day of February, 1904, upon the decision of the court rendered after a trial at the Hew York Special Term.'

Appeal by the plaintiff, George H. Cassidy, from an interlocutory judgment of the Supreme Court in favor of the defendants. John M. Rousseau and John B. Arthur, entered in the office of the clerk of the county of New Y ark on .the 21st day of September, 1904, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the plaintiff’s demurrer to the answer of the defendants Rousseau and Arthur.

Appeal by the defendants, Foster M. Voorhees and others, individually and as voting trustees of' the stock in the Bankers’ Life Insurance Company, and another, from an order of the Supreme Court, made at the New York Special Term and entered in. the office of the clerk of the county of New York on the 28th day of June, 1904, continuingpendente lite an injunction-theretofóre granted in the action. '

Appeal by the defendant, Mary 0. Leary, as administratrix, etc., ■of James D. Leary, deceased, from an intérlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of ÍÑfew York on the 27th day of June, 1904, upon an order entered in said clerk’s office on the 21st day of June, 1904,,overruling the defendant’s demurrer to the plain-, tiff’s complaint, and also'from the said order upon which such inter-' • locütory…

<p>Appeal by the plaintiff, George Ketchum, from a judgment of - the Supreme Court in favor of the defendants George H. Pigueron and others, entered .in the office of the clerk of the^county of New .York on the. 20th day of October, 1904, upon the decision of the . court,, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits.</p>

<p>Appeal by the defendant, the Commonwealth Trust Company o.f New York, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, bearing date the 20tli day of June, 1904, and entered in the office of the clerk of the county of New York upon the decision of' the court, rendered after a trial at the New York Special Term, sustaining the plaintiff’s demurrers to the various affirmative defenses set forth in the defendant’s amended answer, and also to a counterclaim therein contained.</p>

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

Appeal by the defendant, M, Groh’s Sons, from a judgment of the Supreme Court in favor óf the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of March, 1904, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 4th day of March, 1904, denying the defendant’s motion for a new trial made upon the minutes. '

Appeal by the defendant, Adolph Newman, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of February, 1904, denying the said defendant’s motion to vacate a judgment theretofore entered upon a forfeited recognizance.

Appeal by the plaintiff, James Armstrong, from so much of a judgment of the Supreme Court, partly in favor of the plaintiff and partly in favor of the defendant Talbot, entered in the office of the clerk of the county of New York on the 4th day of March, 1904, upon the decision of the court, rendered after a trial at the New York Special Term, as adjudges that the plaintiff has failed to establish any lien or right to a lien upon the real property described in the complaint.

<p>Appeal by the defendants, Henry L. Sprague and others, from, a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the ISth-day of March, 1904, upon the verdict of a jury rendered by direction of the court-after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the, 23d day of March, 1904, denying the defendants’ motion for a new trial made upon the minutes. -</p> <p>This is an action brought by a receiver in supplementary pror ceedings of a creditor of the Sitka Developing Company against its president and others to recover of them personally, under section 30 of the Stock Corporation Law, the debt due from the company, as a penalty for their failure to file an annual report.</p> <p>Leon Marie entered into a contract with the company on May 8, 1899, to act as general manager in Alaska for.one year at a -stated salary, and immediately went to Alaska, where he remained until November, 1899, when he was directed to return and was told that the company was without- funds to continue his employment. There was due him for salary on May 1, 1900, the sum of $2,650, which was never paid. In May, 1901, a. judgment was obtained against him in the City Court for the sum of $322.27. Execution on the judgment having been returned unsatisfied, the plaintiff was appointed receiver in supplementary proceedings and proceeded to institute this action.</p> <p>It is conceded that in January, 1900, the company failed to file an annual report as required by section 30 of the Stock Corporation, Law (Laws of 1892, chap. 688, as amd. -by Laws of 1897, chap. 384), which section, after reciting the nature of the report to be made and filed, provides that “ if such report is not so made and. filed, all the directors of the corporation shall jointly and severally be personally liable for all the debts of the corporation then existing and for all contracted before such report shall be made.” The section also provides that a director shall not be so liable if he shall file a verified certificate, as therein specified, stating that he has endeavored to have such report made and filed, but that the officers Or a majority of the directors have refused and neglected to do so, and that he has not personal knowledge of the items required or sources from which to obtain information thereof.</p> <p>By chapter 354 of the Laws of 1899, section 34 was added to the provisions of the statute, limiting the liability of the directors as follows: “No director * * ■* shall be liable to any creditor * * * because of any failure to make or to file an annual report * * * (2) Unless within-three years after the occurrence of the act or the default in respect of which it shall be sought to charge the director, * * * such creditor shall have served upon such director * * * written notice of his intention to hold him personally liable for his claim; provided, nevertheless, that any such liability * * * may be enforced by action begun * * * within the year eighteen hundred and ninety-nine * *</p> <p>The complaint alleged the debt due and sets up section 30 averring that the report was not filed, but makes no reference to section 34, nor was there any proof offered by the plaintiff as to the giving of notice to the defendants.</p> <p>There was no dispute upon the facts, and the court directed a verdict for the plaintiff, and from the judgment so entered the defendants appeal.</p>

<p>Appeal by the defendant, The Mercantile National Bank of the City of New York, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the ■ 8th day of July, 1904, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the demurrer of the plaintiff to several counterclaims and set-offs interposed in the answer of the defendant.</p>

<p>Appeal by the plaintiff, The Pittsburgh Amusement Company, from a judgment of the Supreme Court in favor'of the defendant, entered in the office of the clerk of the county of New York on the 5th day of January, 1903, upon the decision of the court, rendered after a trial at the New York-Special Term, dismissing the plaintiff’s complaint. •</p>

Appeal by the defendant, Henry B. Sire, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of August, 1904, denying the defendant’s motion to issue' a second commission to take the further testimony of Léander S. Sire as a witness for the defendant.

<p>Appeal by the defendant, Margaret J. Smith, from so much of an order of the Supreme Court, made at the New York Special Term and entered, in the office of the clerk of the county of New York on the 17th day of November, 1904, as imposes conditions upon the opening of a default in proceedings for the distribution of moneys arising upon the foreclosure of a mortgage.</p>

Appeal by the plaintiff, George E. Spencer, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 7th day of March, 19Ó4,_upon the report of a referee dismissing the • plaintiff’s complaint ; also from an order entered in said clerk’s office on the 10th day of February, 1904, denying the plaintiff’s motion to amend the complaint, and also from an order entered in said- clerk’s office on ■the 10th…

<p>Appeal by the defendants, Bernard Naughton and another, from a judgment of the Supreme Court in favor of the plaintiff and against said defendants (the complaint having been dismissed as to the other defendants), entered in the office of the clerk of the county of New York on the 9tli day of January, 190"4, upon the ■ verdict of a jury for $5,0.00, and also from an order ent.eredin said clerk’s office on the 18tli day of January, 1904, denying the said defendants’ motion for á new trial made upon the minutes.</p>

Appeal by John Gr. Sanford and others from a decree of the ¡Surrogate’s Court of the county of Ne~w York, entered in said Surxogate’s Court' on the 2d day of August, 1904, confirming the report of a referee in the proceeding and granting letters of administra- - tian upon the estate of sJohn A. or Anthony Barnes, deceased, to Alary Morris.

Appeal by The People of the State of Hew-.York from an-order' of the Supreme. Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 16th day of J une, 1904, sustaining a writ of habeas corpus , theretofore issued herein, and directing that the relator be discharged from custody.

-Appeal,-by the plaintiff, Julia Thaxter, from a judgment of the-Supreme- Court in favor of the defendant, entered in the office off the clerk of,the county of New York on the 5th day of April, 1904,. ■upon- the' decision of the court, rendered after a trial at the New -York Special Term, ad judging the defendant tó be entitled to the-possession of certain shares of stock.

Appeal by the defendant, Henry B. Sire, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16tli day of November, 1904, denying the defendant’s motion to vacate a judgment in favor of the plaintiff theretofore entered upon the report of a referee, and to have the case sent back to the referee for the purpose of receiving the defendant’s brief and for ' re-examination. .

Appeal by the plain tiff, Levi L. Whitney, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 28tli ■day of November, 1904, denying the plaintiff’s motion to vacate an •order theretofore granted upon the application of the respondent ■for the examination of the plaintiff before trial.

Appeal by the plaintiffs, Rachel Lehmaier and others, from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 23d day of May, 1904 (as amended by an order entered in said clerk’s office on the 14th day of June, 1904), upon the verdict of a jury rendered by direction of the court in favor of the plaintiffs as to the first,, second and third causes of’ action, and upon the dismissal of the complaint by direction of the court as…

<p>Appeal' by the plaintiff, the J. H. Labaree Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 'Tth day of December, 1903, upon the report of a referee dismissing the complaint upon the merits.</p>