Volume 101 — New York Appellate Division Reports

Appeal by the plaintiff, Anna E. Boden, from a judgment of the -'Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 21st day of March, 1904, upon the dismissal of the cojnplaint by direction of the court after -a trial at the Kings County Trial Term.

Appeal by the plaintiff, Catharine F.. Street, from a judgment of the Municipal Court of the city of New York in favor of the defendant, entered in the office of the clerk of said court on the 18th day of June, 1904, after a trial before the court without a jury.

Appeal by th,e plaintiff, Jamés W. McManus,- from a judgment of the Municipal Court of- the city of New York in favor of the - defendant, entered upon the decision of the court rendered after a trial before the court without a jury.-

Appeal by the plaintiffs; Meyer Rosenstock and another, from a judgment of the Municipal Court of the city of New York in favor of the defendant, entered in the office- of the clerk of said court, sustaining a demurrer to the amended complaint.

<p>Appeal by the defendant, The Michigan Mutual Life Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of ;the county of Westchester on the 19tli day of December, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21st day of December, 1903, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, Lowell M. Palmer, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 19th day of January, 1904, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 25th day of January, 1904, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>. Appeal in each of- the above-entitled actions by the- defendant,; The" City of Hew York, from a judgment of the. Supreme Court in favor of the plaintiff in each action, entered in the office of the clerk of the county of Queens on the 3d day of February, 1904, upon the verdict of a jury for $8,000 in the first above-entitled action, and for $12,500 in the second action, and also from an order entered in said clerk’s office on the 19th day of February, 1904, in eacli action denying the motion of the defendant in such action for a new trial made upon the minutes.</p> <p>These actions were brought to recover damages for the negligent killing of James Nelson, a fireman, and William Digby, an engineer,_ in the employ of the city of New York, who lost their lives in consequence of the explosion of a boiler at a city pumping station in the borough of Queens. The cases were tried together by the consent of counsel and with the sanction of the court and resulted in a verdict of $8,000 for the plaintiff in the Nelson suit and $12,500 for the plaintiff in the Digby suit.</p>

<p>■ Appe-ai! by the defendant, the F. R. Patch- Manufacturing Company, from a judgment of the Supreme Court in favor, of the plaintiff, entered in the office of the cleric of the County- of Queens on the 29th' day of December, 1903; upon the verdict of a jury, and also from, an order entered-in said clerk’s office on the- 4th' day of ' January, 1904, denying the defendant’s motion for a new trial made upon the minutes,</p>

<p>Appeal by Anna W. 0. Borrowe from a decree of the. Surrogate’s Court of the county of Suffolk, entered • in said Surrogate’s Court on the 21st day of June, 1901, settling the accounts of the executors of and trustees under the last will and testament of Austin Corbin, deceased. .</p>

Appeal by the defendant, Rosemont Realty Company, from. a judgment of the Municipal Court of the city of New York, bow pugh of Brooklyn, in favor of the plaintiff, entered on the 13th day of July, 1901.

Appeal by the defendant, Terrence H. Forrest, from a judgment of the Municipal Court of the city of New York, borough.of Brooklyn, in favor of the plaintiff, entered on the 20th day of May, 1904.

<p> Charges against a patrolman on the Jfew York city police fwi'ce—when made by a chief inspector they need not be verified —failure to deny an allegation of the petition for a certiorari that the .relatar was infwrmed and believed, etc.—use by the commissioner of affidavits, where opportunity was given to examine the deponents. </p> <p>Rule 28c of the police department of the city of New York does not require the verification of written charges preferred against a patrolman by a subordinate officer of the department, viz., a chief inspector, notwithstanding the fact that the charges were made upon information furnished by a private individual.</p> <p>The failure of the return to a writ Of certiorari, issued to review the action of the, police commissioner of the city of New York in removing the relator from.hia ^position of patrolman on the force, to deny an allegation of the petition to the effect that the relator was informed and believed that certain affidavits not offered in- evidence, were considered in determining the relator’s guilt, does not constitute an admission that the affidavits were so considered, no averment of fact being made and. it appearing that the source of the relator’s information and the ground óf his belief were not disclosed in the petition. <</p> <p>S&rnble, that the respondent could not well deny under oath that the relator had been informed and believed that the affidavits in'question were considered.</p> <p>The fact that the affidavits in- question were considered in determining the. relator’s guilt will not require a reversal of the police commissioner’s determination, where it appears that the pevsonsunalring-theMffidav.its w'ere.-chl-led as witnesses in support of the charges, and that the relator was thus given an opportunity to cross-examine them and to point out any variations between their affidavits .and their testimony.</p>

<p>Appeal by the defendant, Martin Maloney, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 25th day of November, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27th day of November, 1903, denying the defendant’s motion for a pew trial made upon the minutes.</p>

<p>Libel — bill of particulars as to the name and address of a newspaper reporter and of persons making statements to him, denied — discretion of Special Term — dis-. closure of names of witnesses, when compelled. 1</p> <p>Where, in an action brought to recover daniages for an alleged libel, published in the defendant’s newspaper concerning the plaintiff, a captain of police at Coney-Island, the answer sets forth that “ said article published by this defendant was founded upon statements made by persons residents of said Coney Island, or having places of business in said Coney Island, to a reporter of this defendant who believed them to be true,” the plaintiff is not entitled to a bill of particulars containing the name and address of the reporter and the names and addresses of the persons residing in or having a place of business at Coney Island who made the statements to the reporter as alleged in the answer.</p> <p>The granting or withholding of a bill of particulars is within the discretion of the Special Term, and where there has been no abuse of this discretion the appellate courts will not, as a rule, interfere.</p> <p>A litigant cannot be required by a bill of particulars to disclose to his adversary ■ the names of the witnesses whom he will call in support of his allegations, unless this is an incident to the furnishing of information in reference to an issuable fact.</p>

Appeal by the defendant, Paul Sheldon, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rings on the 19th day of January, 1904, upon the verdict-of a jury, and also from an order entered in said clerk’s office on the 21st day of January, 1904, denying the; defendant’s motion for a new trial made upon the minutes.

<p>Injury to a horse while in the exclusive possession of a bailee — when it establishes negligence on his part.</p> <p>Where property, while in the exclusive possession of a bailee for hire, is injured in a way that ordinarily does not occur without negligence, the burden of proof is upon the bailee to show that the injury was not occasioned by his negligence. Thus, where a horse placed in the possession of a bailee for hire on Saturday afternoon in good condition, was found on Sunday to have sustained a lacerated wound of the eye which resulted in his loss of sight, a prima facie case of negligence on the part of the bailee is thereby established.</p>

Appeal by the petitioners, William H. Jones and others, composing the board of supervisors of the county of Nassau, from an order of the County Court of Nassau county, entered in the office of the. clerk of the county of Nassau on the; 13tli day of April, 1904, denying the petitioners’ motion to set aside and quash a presentment made by the grand jury of Nassau county.

Appeal by the defendant, .the Yonkei'S Railroad Company, from • a judgment of the City Court of Yonkers in favor of the plaintiff, entered in the office of the . clerk of said court on the 2d d,av of February, 1904, upon the verdict of a jury for $500,- and also from-an order entered in said clérk’s office on the lltli day of 'February, 1904, denying the defendant^ motion for a. new trial made upon the.. minutes.- < -

Appeal by the defendant, Charles B. Dix, doing .business, under the firm name and style of McKay & Dix, from a judgment'of the Supreme Com't in favor of the plaintiff, entered- in the office of the clerk of' the county of Kings on the lltli day of December, 1903, upon the verdict of a jury, such verdict having been amended by an order entered in said clerk’s office on. the 9th .day of December, 1903, also from an order granted the 11th day of December, 1903, and entered in…

<p>Appeal by the'plaintiff, Charles F. Allcot, from a-judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk, of the county of Queens on the 3d day of March, Í904, upon the dismissal of the. complaint by direction of the court after a trial at the Queens County Trial Term.</p>

Appeal by the plaintiff, Julius Levy, from. a judgment of the Municipal Court of the city of New York in favor off the defendants, entered on the' 28tli day of July, 1904, awarding them possession and costs in a replevin suit.

<p>Appeal by the plaintiff, John J. Huyler, as executor, etc., off Luther R. Marsh, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office'of. the clerk of the county of 'Orange on the 25fh day of ; January, 1904, upon the decision of the court, rendered after a trial at the Orange Special Term, dismissing the plaintiff’s complaint..</p>

Appeal by the defendant, John Alvin Young, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 10th day of March, 1904, upon the decision of the court, rendered after a hearing at the Kings County Special Term, overruling the defendant’s demurrer to the plaintiff’s complaint.

<p>Diversion of subterranean waters, by driven wells, for a city water supply — the owner of the land thus injured is entitled to an injunction and damages — a finding that no damage resulted, not sustained.</p> <p>Where the city of New York, hy means of driven wells used for the purpose of furnishing a portion of its water supply, lowers the natural level of the subterranean waters appurtenant to adjacent agricultural land, without acquiring, either in condemnation proceedings' or by private contract, the right so to do, the owner of such land is entitled to an injunction restraining the operation of the pumps, if he is likely to sustain any damages in the future by reason of the trespass, and he is also entitled to recover the damages, the measure of which is the impairment of the rental value of the land consequent upon the diversion of the water, for the six years prior to the commencement of the action.</p> <p>When a finding that the owner of the land suffered no damages because of the diversion of the subterranean waters is insufficiently supported by the evidence, considered.</p>

Appeal by the plaintiff, Samuel Ayers, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk Of the county of Rockland on the 8th day of June, 1903.-' upon the decision of the court, rendered after a trial before the court without a jury at the Rockland Trial Term, dismissing- the complaint upon the merits.

<p>•A court of equity may restrain a public officer from committing a trespass—where a policeman is stationed permanently in a saloon and in a club room there is no adequate remedy at law — such an act is not justified by the Liquor Tax Law or the New York city charter —it violates the Constitution — in granting an injunction order to restrain it, the court should not recite that the captain of police acted maliciously.</p> <p>Upon an appeal from an Order granting an injunction pendente lite, made in an action brought against the defendant individually and as a police captain of the, city of New York to restrain him from persisting in an alleged continuing trespass on the plaintiff’s property, it appeared that the plaintiff conducted a duly licensed saloon on the ground floor of certain premises in the city of New York; that on the second floor of the building were two rooms, one of which the plaintiff occupied as a restaurant and the other of which he rented to certain butchers as a clothes room; that there was also located on the second floor of the building a third room which was occupied by an incorporated social club; that access to the second floor was gained by a stairway located at the side of the saloon.</p> <p>It further appeared that the defendant, who knew that certain men whom he suspected of being common gamblers were members of the club, and who believed that they intended to conduct a gambling place on the club premises, stationed two officers in citizens’ clothing on the plaintiffs premises; that one of them took his post in the plaintiffs saloon and the other upstairs, sometimes within and sometimes. without 'the plaintiffs restaurant; that the continued , presence of the police officers in and upon the plaintiffs premises seriously damaged the plaintiff’s business; that upon the plaintiff’s protesting against the presence of the officers, the defendant replied that he would not desist until he had driven the suspected gamblers from his precinct.;</p> <p>The plaintiff was not a member of the club and had nothing to do with it, and was not interested in the premises which it occupied, either as owner or proprietor, or in any other way. It was not suggested or intimated that the plaintiff had ever in any way, either on his premises or in the room occupied by the club, committed or attempted to commit a crime; nor did it appear that the room occupied by the 'club had, prior to such occupation, ever been used for an immoral purpose or that it was being so used by the club.</p> <p>Held, that the order granting the injunction pendente lite should be affirmed;</p> <p>That the power of a court of equity to restrain a continuing trespass may be . invoked to restrain public. officers from performing acts in the discharge of their duties which come within the nature of a trespass tending to the irreparable injury of the aggrieved party:</p> <p>That the objection that the plaintiff had an adequate remedy at law was untenable; that the mere existence of the continuing trespass was quite suffiti cient to authorize the plaintiff to maintain this action, and, moreover, that it was clear that the injuries to the plaintiff would be irreparable and that he had no adequate remedy at law ;</p> <p>That the defendant could not justify his conduct under section 37 of the Liquor Tax Law (Laws, of 1896, chap. 112, asamd. by Laws of 1903, chap. 486) which declares saloohs to be public places and gives to police officers the right tó.z inspect them, nor under section 315 of the charter of the city of New York (Laws of 1901, chap. 466) which makes it the duty of police officers to ‘‘ observe and inspect all places of public amusement, all'places of business having excise or other licenses’ to carry on any business; * * * all gambling-houses, * * * and, to repress and restrain all unlawful and disorderly conduct, or practices therein;”</p> <p>That it was not the intention of the Legislature when conferring such powers on police officers to permit them to permanently occupy the premises of an . individual;</p> <p>That the manner in which police officers may prevent crime is pointed out by statute, and should not be extended so as to interfere with the constitutional guaranty that “ the right of the people to be secure in their persons, houses, paper and effects, against unreasonable searches and seizures, shall not be violated,” and that no person shall be deprived of life, liberty or property without due process of law; ' -</p> <p>That a clause in the order granting the injunction pendente lite, stating that it satisfactorily appeared to the court that the defendant had acted maliciously and oppressively toward the plaintiff, should be stricken therefrom as the court should not. when granting a provisional remedy, declare, as a matter of fact, that an officer has been guilty of a crime.</p>

Reargument of an appeal by the plaintiff, Daiiiel T. O’Brien, as-administrator de bonis non of Ann Coote, formerly Ann Gaffney, deceased, from a judgment of the Supreme Court in favor of the-defendants, entered in the office of the clerk of the county of Kings-on the/ 14th day of May, 1903, upon the decision of the ..court rendered after a trial at the Kings County Special Term.

<p>The appointment of a trustee in place of a deceased trustee is not res actjudicata as . to the existence of a trust —it should be made where a prima facie case is presented.</p> <p>The appointment by the Supreme Court of a trustee in place of a deceased trustee is not res actjudicata on .the question as to whether or not the alleged trust: exists.</p> <p>Where, upon such an application, the petitioner retakes prima facie proof of tli'e. existence of the trust.and the death of the alleged trustee, the application will be granted unless the opposing papers conclusively disprove the prima fad& case made out by the petitioner.</p>

<p>Duty of a water company to supply water to a customer—it is-bound to force the water into the customer’s house —the p>ractice of opening water taps in cold weather does not excuse it — a vis major is not a defense. '</p> <p>Where a private corporation, engaged in the business of furnishing for a consideration water to the inhabitants of a village, has for-.a number of years furnished at an annual rental water to the house of a resident of that village, and in May, 19Ó3, such resident pays and the corporation accepts the annual rental for the ensuing year, an implied contract is thereby created under which -it is the duty of the corporation during such ensuing year to furnish water to the resident’s house in the same manner as it has done during the preceding years.</p> <p>Such contract Contains an implied provision that the quantity of water supplied by the corporation shall be sufficient for the ordinary uses to which it is applied by the resident, and that the water shall be forced into the resident’s house '• irrespective of the altitude of such house above'the water main.</p> <p>■ The corporation is not relieved from liability for a failure to maintain sufficient pressure in its niains to force the water into the resident’s house' during the winter months, because of a practice existing on the part of vits consumers to allow water taps to remain open during such months in order to prevent freezing, it appearing that one of the rules Of the water company was that “ faucets are not'to be.left open to prevent frosting of pipes in cold weather.” The vis mayor "is not an excuse for the non-performance of an absolute undertaking.</p>

<p>Tax sale—pur'chase of-land iff the county — reassessment.of such land for the purposes of taxation—power of the supervisors to change the assessment roll — expenses-•of sale and advertisement, how paid—form.of the notice of sale.</p> <p>Land purchased by á county at a tax sale should be assessed until .title thereto is - perfected and vested in the county by a proper deed and all rights of redemption are extinguished.</p> <p>All property is taxable unless exempt by law,- and it-is not within the power of aboard- of assessors to exclude property frorn an assessment, roll or in any manner to change such roll except for an error manifest from it's inspection without argument or evidence.</p> <p>Under sections 122, 125, 150, 151, 153 and 157 of the Tax Law (Laws of 1896, chap. 908, as amd.), where laud offered for sale at a tax sale is bought in by "the county pursuant to the statute, because of the" failure of other parties to bid ’ for it, the same payments are to be. made by the county that would have been required of an individual, e. g., the county must pay a proportionate share of ; the expenses of sale, including the expense of publishing the notice of sale, and charge the same pro rata on the real property sold.. inasmuch as the .statute does not. 'specifically provide the 'form of the notice of sale or its contents, the determination of the contents of the notice rests largely in the discretion of the officer charged with its publication.</p>

<p>Will—when it creates a trust for the testatrix’s son, although the devise is to the son — a power of disposal accompanying a trust is not within section 129 of the Beal Property Law—alternative future expectant estates may be created—the estate is descendible, etc.— lien of a judgment thereon—the judgment creditor may not sue in equity to obtain a construction of the will.</p> <p>A will provided as follows: “Lastly, I give, bequeath and devise to my son Tuthill all the rest and residue of my property, both real an,d personal, to be held in trust, nevertheless, by my said executors, and managed arid cared for by them for my son Tuthill’s benefit until he shall arrive at the age of fifty years, when said trust shall continue in discretion of said executors, and if my son shall die while.it is in force,' he may dispose of said property by will, and if he dies intestate, then this property I bequeath to my heirs at law.!’</p> <p>Held; that the clause quoted created; not a mere power, but a valid, express trust ' in the executors for the purpose of receiving the- rents and profits of the real property devised and of applying them to the use of the testatrix’s son during-his life, or, in the discretion of the executors, until he should arrive at the age of fifty years; . ,</p> <p>That the power of disposal given to the son, being accompanied by a trust, did not fall within the provisions' of section 129 of the Beal Property Law (Laws-of 1896,'chap. 547); ' ‘ ■</p> <p>That the clause in question created two future, expectant estates to take effe.ct in the alternative, to wit, a remainder in said son Tuthill limited upon the precedent estate in the executors, and Contingent upon his arriving ‘'at the ago of 'fifty years,” and the exercise by the executors at that time of their discretion to-terminate the,, trust; and, second, a remainder in the testatrix’s heirs at law limited upon the saíne precedent estate in the executors and contingent .upon the failure of the. estate to vest in the said Tuthill, and also upon his failure-to-exercise the power of disposal by will during the term of the trust;</p> <p>"That the creation of such future estates to take effect in the alternative was authorized by section 41 of the Real Property Law;</p> <p>That the expectant estate in remainder created in the testatrix’s- son Tuthill was a descendible, devisable and alienable estate to which the lien of a judgment recovered against him would attach and which might be sold upon execution;</p> <p>That a.judgment creditor of the testatrix’s-son Tuthill had, however, no right to ' maintain an action to obtain a judicial construction• of. the will, in order to secure an adjudication to the effect that his judgment debtor took an interest under the will to which the lien of the judgment attached.</p>

Appeal by the defendant, Yennette F. Pelletreau, from a judgment of the Municipal Court of the city of New York in favor of the plaintiffs, entered on the 14th day of April, 1904, upon the verdiet of a jury.

<p>Appeal by the plaintiff, Anson Cassavoy, from so much of an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Westchester on the 16th day of June, 1904, as denies the plaintiff’s motion for a retaxation of costs by striking therefrom certain items and for an amendment of the judgment theretofore entered against the plaintiff.</p>

Appeal by the plaintiff, Joseph McLaughlin, from a judgment of the Supreme Court in favor of the defendant, entered in the office <of the cleric of the county of Queens on the 30th day of January, 1904, upon the- dismissal of the complaint by direction of the court ¡after a trial at the Queens County Trial Term.

Appeal by the defendant, William J. Lahey, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 12th day of August, 1904, denying the defendant’s motion to require the plaintiff to accept the answer theretofore served by the corporation counsel of the city of New York.

Appeal by the defendants, Herbert D. Fransioli 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 Kings on the 2d day. of. February, 1904, upon the decision of the court, rendered after a trial at the Kings County Special Term, setting aside a certain assignment as fraudulent.

Appeal by the defendants, William E. Uptegrove & Brother, from an order of the- Supreme Court, made at the Kings County' Special Term and entered in the office of the clerk of the county of Kings on the 8th day of August, 1904, granting the plaintiff’s motion for a stay of proceedings pending an appeal by both parties from an order entered in said clerk’s office on the 28th day of July, 1904, setting aside as excessive a verdict theretofore rendered in favor of the plaintiff.

Appeal by Edward M. Grout, as comptroller of the citjr of Hew York, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 30th day of September, 1904, granting a peremptory writ of mandamus.

Appeal by the petitioner, Joseph H. Friel, from an order of the Supreme ■ Court, made at the Kings County Special Term and-entered in the office of the dlerk of the county of Kings on the 5th day of October19047 denying the petitioner’s motion for a peremptory writ of mandamus. ' ■ .

Appeal by the petitioner, the Long Beach Land Company, from ,an order of the County Court of Nassau county, entered in the ■office of-the-clerk of-the county of Nassau on the 21st day of July, 1904, denying the petitioner’s 'application • for an apportionment between two corporations of an assessment on a certain piece of land for the year 1903.

<p>Appeal in each of the above-entitled actions by the respective ■plaintiffs, Alfred E. Sander,',.and William Morris Butler, from a judgment of the Municipal Court of the city of New York, bor-ough of Brooklyn, in each action in favor of the defendant, entered •on the 13th day of September, 1904, dismissing the complaint in teach action.</p>

Appeal by the defendant, Samuel Aaron, from an order of the Supreme .Court, ’ made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 17th day of November, 1904, ddnying the' defendant’s motion for a further bill of particulars.

<p>Appeal by Josiah J. White, individually, as guardian of the person and as guardian ad litem of Frederic Hall White, an infant, from two several orders of the Supreme Court in the first above-entitled proceeding, and from two several orders in the second and third above-entitled proceedings respectively, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the lath day of August, 1904, denying motions to vacate a decree and three orders made at another Special Term presided over by another justice.</p>

Appeal by the defendants, George W. Harris and others, composing the firm of George W. Harris & Co., from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the plaintiff, entered on the 30th day of June, 1904.

Appeal by the defendants, William McAdoo, as police commissioner of the city of Hew York, and another, from an order of the Supreme Court, made at the Kings County Special Term, and entered in the office of the clerk of the county of Kings on the 2d day of June, 1904, granting the relator’s motion for a peremptory writ of mandamus,

Appeal by Bernhard Klepper, the purchaser at a foreclosure sale, from an order of the County Court of Kings county, entered in the office of the clerk of the county of Kings on the 13th day of September, 1904, denying the appellant’s motion to be relieved from his purchase at such sale. x

Appeal by Michael Donovan and another, as executors and trustees of and under the last will and testament of Bessie O: Dónovan, deceased, from an order of the Surrogate’s.Court.'of We county of Kings, bearing date the 17th day of November, 1904, and entered in said Surrogate’s Court, directing the said executors and trustees to file an account of their proceedings.

<p>Des ad judicata — an interlocutory judgment in partition directing a sale is conclusive, as to the title thereby adjudged, in an action of ejectment involving such title previously brought but not previously tried — a purchaser at a sale under such interlocutory judgment, pending an appeal therefrom, acquires a good title.</p> <p>After the commencement of an action in ejectment, one of the defendants in the ejectment action brought an action against his codefendants in such action to partition the premises, making the plaintiff in the ejectment action a party thereto, and alleged in his complaint that the latter had no valid claim or interest in the premises, but that she asserted some claim or interest therein which constituted a cloud on the title. The plaintiff in the ejectment action interposed an answer in the partition action in which she set up her alleged title to the premises and demanded .affirmative relief.</p> <p>The partition action proceeded to trial and resulted in an interlocutory judgment declaring that the plaintiff in the ejectment action had no title to the premises. The Appellate Division affirmed the interlocutory judgment and the plaintiff in the ejectment action thereupon appealed therefrom to the Court of Appeals, filing the usual undertaking for costs.</p> <p>Held, that the court properly denied a motion made by the plaintiff in the partition action for a stay of the sale directed by the interlocutory judgment, the appeal from which was pending in the Court of Appeals, until the determination of the action of ejectment;</p> <p>That the title of the plaintiff in the ejectment suit was properly tried and determined in the partition action, and that the adjudication on that question in the partition action was res adjudicata as to the plaintiff in the ejectment action;</p> <p>That the force of the adjudication in the partition action was not affected by the fact that tííe latter action was begun subsequent to the action in ejectment;</p> <p>That a bona fide purchaser at the partition sale would be protected.</p> <p>Hooker, J., dissented.</p>

Appeal by the defendant, 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 Kings on the 26th day of February, 1904, upon the decision of the court rendered after a trial before; the court without a jury at the Kings County Trial Term.

Appeal in each of the above-entitled actions by the defendant, 'The City of New York, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county •of Queens tin the 29th day of December, 1903, upon the decision of . the court rendered after a trial at the Queens County Special Term. , These actions were brought to recover damages for injury to the plaintiffs’ land caused by a reduction of the water level of. the Jand…

Certiorari issued out of the Supreme Court and attested on the 28th day of May, 1904, directed to Otto Kelsey, as Comptroller of the State of New York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings had in assessing a license and franchise tax against the relator for the year 1903. • The relator is a foreign corporation, organized under the laws of the State of New Jersey.

Appeal by the defendants, Matthéw J. Wallace and another, as executors, etc., of George Cuyler, deceased,^from a judgment of the Supreme Court in favor of the plaintiff,; entered in the qffice of the clerk of the county of Albany on the 11th day of July, .1904, upon the decision of the court rendered after a trial before the court ■without a jury at the Albany Trial Term. ■ The facts in this case were stipulated, and are as follows: “ 1st. That on or about May 7t-li, 1867,…

Appeal by the defendant-,-Henry W. Buckell, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Washington on the 9th day of June, 1904, upon the report of a referee. The'plaintiff is-the owner of 160 acres of land-up,on the shore of Lake George. Through this land runs a ■ highway which divides the farm about evenly.

Certiorari issued out of the Supreme Cóiirt and‘attested-on the 21st day of May, 1904, directed to Joseph-F. Hogan, mayor , o-f the city of Troy, commanding him to certify and return to the office of the clerk of the • county • of Rensselaer all-and singular Ins proceedings had in relation to the dismissal of-the relator from- the. position of superintendent-of public burial grounds of the-city ofi Troy. ■ The charges Were ten in number.

Appeal by the relator, The Rochester Telephone Company, fromán order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany'ón the 20th day. of July, 1904, permitting, among other things, Charles F. Pond and. others, as assessors, to be made defendants in this'proceeding. ■ -This proceeding is upon a writ of certiorari, issued by Justice Dunwell of the Supreme Court to review'relators assesment for a special…

<p>The venue of an affidavit is prima facie the place where taken— a petition verified before a notary outside of his jurisdiction will be treated as unverified — letters of administration granted thereunder are prima facie validé who may object 'that parties, having prior' right to administration, were not cited.</p> <p>The venue of an affidavit is prima facie the place where it was taken.</p> <p>.A petition for letters, of administration must bé tredted as unverified, where the affidavit of verification attached thereto purports to have been made before a notary public in the county of New York, while the venue stated therein is Columbia county. . - '</p> <p>Letters of administration, even though granted on an unverified petition, are prima, facie proof that-they were properly issued, and it is incumbent on a person claiming that tlley were improperly issued to establish that, fact by áffirmative proof.</p> <p>The objection, that letters of administration were improperly issued, because parties having a prior right thereto were not cited, can only be raised by the .parties having such prior right.</p>

<p>Certiorari issued out of the Supreme Court and attested on the 5th day of July, 1904, directed to -Otto Kelsey, as Comptroller of the State of New York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings had in relation to the assessment of a franchise tax against the relator for the year ending October 31, 1903.</p>

<p>Certiorari issued out of the Supreme Court and attested on the 25th day of June, 1904, directed to the Board of Railroad Commissioners of the State of ¡New York and to George W. Dunn and others, as Railroad Commissioners, etc., commanding them to'certify and return to the office of the clerk of the county of Albany all and singular their proceedings had in the matter tif granting to the Binghamton and Southern Railroad Company a certificate under section 59 of the Railroad Law' (Laws of 1890,' chap. 565, added by Laws of 1892, chap. 676, and amd. by Laws of 1895, chap. 545).</p>

<p>Misjoinder of causes of action — a demurrer lies, although they are not separately stated— a cause of action for selling an unsafe gun cannot he joined with one for a Irreach of warranty thereof.</p> <p>A demurrer to a complaint-, interposed on the ground that two causes of action are improperly joined therein; will lie even though such causes of action are not separately stated and numbered.</p> <p>The complaint in an action alleged that the defendants placed upon the market a gun constructed of such defective material and in such a careless manner that it .was unsafe for use and a danger to the community; that the gun exploded while the plaintiff was using it, thereby causing him to lose his hand. It further alleged that at the time the defendants sold the gun they warranted it in every part; that plaintiff, relying on such warranty, used the said gun and that it exploded while being used by reason of such defective material and' construction and so severely injured the plaintiff that he lost his left hand.</p> <p>Held, that the complaint stated two causes of action, one on contract and the other in tort; . ,</p> <p>That the two causes of action were not upon different ' claims arising out of the same transaction or transactions connected with the same subject of action,” within the meaning of subdivision 9 of section 484 of the Code of Civil Pro-cedure, and that it was, therefore, improper to join them in the same complaint.</p> <p>Houghton, J., dissented.</p>

<p>Appeal by the defendant, the Bellew & Merritt Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the -office of the clerk of- the county of' Montgomery on, the 1st ■day of February, 1904, upon the verdict of a' -jury for, $225; and also from an order bearing date the 25th day-of January, 1904,. and entered in said cleric’s office, denying- the defendant’s motion "for a,, new trial made upon the minutes. ■ ' .</p>

Appeal by the plaintiff, Richard E. Fitzgerald, from an order of the Supreme Court, made at the St. Lawrence Special Term and entered in the office of the clerk of the county of 'St. Lawrence on the 4th day of April, 1904, directing the plaintiff to accept and retain the answer and the demand for a bill of particulars served upon him by the defendant. , The plaintiff, having served the summons and complaint in this action to recover for legal services rendered, the time to…

Appeal by the relator, the Buffalo Railway Company, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 15th day of Rovember, 1901, vacating and setting aside an order theretofore entered herein reducing an assessment of the special franchise of the relator.

<p>Sale of Malt Bose—proof, by a chemist for the prosecution, of the analyses of Malt Bose alleged to have been sold — when it may be controverted by proof of the analyses, made on behalf of the defendant, of other samples.</p> <p>Upon the trial of a person charged with the offense of selling intoxicating liquor without a liquor tax certificate, the witnesses for the prosecution testified that, on September 22, 1903, they went into a place where the defendant was tending bar, and that the defendant there sold and delivered to each of them a glassful of a drink called Halt Rose, of which they drank part; that while the defendant was momentarily in an adjoining room one of the witnesses placed a portion of the contents of his glass in a bottle; that the same evening they took the bottle to one Gann and left it with him. Gann testified that he took the bottle and contents to one Priest, a chemist, and left it with him for analysis. Priest testified that he analyzed the contents of the bottle and found that it contained about five aqd forty-three one-hundredths per cent of alcohol.</p> <p>The defendant admitted selling each of the witnesses a glass of Malt Rose, but denied that either of them had put any portion of his drink into a bottle, and also denied that he was absent from the bar while they were there. The defendant’s counsel called a chemist and proved by him that on January 14, 1904, he obtained from the defendant’s place a sample of Malt Rose for the purpose of analysis; that on several occasions prior to that date, one of them being October ninth, he had analyzed the liquor commqnly called and sold as Malt Rose. The defendant’s counsel then asked the witness what the analysis showed, stating that he proposed to connect it and show that it was the same kind of liquor that was sold to the People’s witnesses. The court refused to admit the evidence, stating that the defendant could not “ prove any analysis of liquor obtained in January as bearing on liquor in September.”</p> <p>It appeared that Malt Rose was a known article of commerce, and the evidence indicated that it was made from some definite receipt or formula.</p> <p>Held,, that the exclusion of. the testimony of the defendant’s. chemist constituted error requiring the reversal of a judgment of conviction;</p> <p>That the defendant’s chemist should have been allowed to testify what he found' the liquor to consist'd; • ' ' • '</p> <p>That if the different analyses made by him varied so much that it was plain that the specimen procured in January was no criterion of what the specimen in September contained, they would be ineffective to discreditxthe analysis made by the People’s chemist, or to discredit the claim that the latter chemist had received a. portion of what the defendant sold; '</p> <p>That if the various analyses made by the defendant’s chemist showed that the constituents in the samples used were the same or substantially so, the defendant had a right to prove the analysis Of a brand similar to that which he testified he had sold, as tending to discredit either'the accuracy of the analysis made by the People’s expert or the truthfulness of the People’s claim that the latter expert had analyzed the same drink that the defendant sold.</p> <p>Per Parker, P. J., and Houghton, J.; Smith, Chase and Chester, JJ., concurred in result.</p>

Appeal by the plaintiff, The Sherman Lime Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Warren on the 17tli day of February, 1904, upon'the decision of the court rendered after a trial at the Warren Special Term.

Motion ■ by the respondent, Letitia E. Redfield, as administratrix with the will annexed of Letitia E. Gowdey, deceased, to dismiss an appeal from an order of the Surrogate’s Court'of Sullivan county, entered in said Surrogate’s Court on the 15th day of June, 1904, denying the appellant’s motion to open a decree made by said Surrogate’s Court and for a reconsideration of the same.

Appeal by the defendant, the United Traction Company, from an order of the Supreme Court, made at the Montgomery Special . Term and entered in the -office of. the clerk of-the county of Schenectady on the. 2d day of September, 1904, continuing.pendente lite an injunction theretofore- granted in the action by which the defendant was restrained from preventing the operation of some of the plaintiff’s pars.over the defendant’s tracks in the city of Albany.

Appeal by the plaintiff, Frank A. Cutting, from an order of the County Court of St. Lawrence county, entered in the office of the clerk of St. Lawrence county on the 21st day of April, 1904, vacating and setting aside a' judgment and taxation of costs in favor of the plaintiff and directing a taxation of defendant’s bill of costs: This action was commenced in Justice’s Court to recover for an alleged trespass by the defendant on the plaintiff’s real property.

<p>Action for false representations—MU of particulars, when not denied because the answer contained only admissions and denials — the fraud must be denied — a verified answer takes the place of an affidavit.</p> <p>When, in an action brought to recover damages for alleged false and fraudulent representations made by the defendant in the sale of two horses to the plaintiff, the defendant, who denied in his answer the fraud charged in the complaint, is entitled to a hill of particulars of the plaintiff’s claim, considered.</p> <p>The fact that an answer contains only admissions and denials may furnish a good ■reason for denjúng a motion made by the plaintiff to compel the defendant to serve a hill of particulars, hút does not furnish sufficient reason for the denial of a motion made by the defendant to compel the plaintiff to furnish a hill of particular's.</p> <p>Unless the defendant in an action for fraud denies the fraud charged in the complaint, a hill of particulars of the plaintiff's claim should not he ordered.</p> <p>On a motion by a defendant for a hill of particulars, denials contained in the defendant’s verified answer may he considered, although such denials are not repeated in a separate affidavit.</p>

Certiobaei issued out of the Supreme Court'and- attested on the 25 th day of January, 1904, directed to Nathan L. Miller, as Comptroller of the State of New York, and another, Commanding them to certify and return to the office of. the clerk of the county of Albany all and singular their proceedings had in relation to. the audit of á claim of the relator .against the State of New York for services as a real estate appraiser and expert witness.

Certiorari issued out of the Supreme Court and attested on the' 28th day of May, 1904, directed to John F. O’Brien, as Secretai-y of State of the State of New York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings had in relation to the filing of a certificate of incorporation of “ The Columbian Chemical Company.” The “ Columbia Chemical Company ” was duly incorporated in this State on the 17th day of…

Appeal by the defendant, St. Lawrence County, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of St, Lawrence on the 13th day of August, 1903, upon the verdict of a jury rendered after a trial at the St. Lawrence Trial Term.

Appeal by the defendant, the Glen Creamery Company, from a, judgment of the Supreme. Court in favor of the- plaintiff; entered in,' the office of the clerk of. the county of Montgomery on. the 24th day of June, 190,4,. upon the verdict, of a jury, and also, from an order entered in.said clerk’s office on the l$th day of July, 1904, denying the defendant’s motion for a néw trial made upon the minutes.

Appeal by the plaintiff, Hattie P. Beers, as sole administratrix, etc., of Frank Beers, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Chemung on the 8th day of June, 1904, upon the verdict of a jury, also from an order entered in said clerk’s office on the 8th day of June, 1904, denying the plaintiff’s motion for a new trial made upon the minutes, and also from an order entered in said…

Appeal by the plaintiff, Edward Gilbert, from a judgment óf the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Rensselaer on the 9th day.of May, 1904, upon the dismissal of the complaint by direction of the court after a trial at the Rensselaer Trial Term.

Appeal by the defendant, Mulford Reahr, from a judgment of the County Court of Schoharie county, entered in the office of the clerk of the county of Schoharie on the 22d day of January, 1904, affirming a judgment in favor of the plaintiff rendered by a justice ■of the pe,ace of the town of Cobleskill on the 31st day of March, 1903.

Appeal by the defendant, William J. Horton, from, that portions of a judgment of the Supreme Court in favor of the plaintiffs, as-against the said defendant, entered in the office of the clerk of the-county of St. Lawrence on the 20th day of July, 1904,, upon thdecision of the court, rendered after a trial at the St. Lawrence: Special Term, which adjudges a certain tax, sale to be void and! directing the cancellation of such sale.

<p>Franchise and license t'aximposed upon a foreign corporation—patentsunder which its manufactures may be assessed at the par value of the stock issued therefor— the fact that some of the patents are without value does not require, a reduction.</p> <p>In estimating, for the purpose of fixing the license and -franchise tax to be paid by ■ a foreign corporation, the value of certain patents, under which it is engaged in manufacturing, and in payment for which it- has -issued a portion of its capital stock; the Comptroller is justified in determining such patents to be worth the par value of the stock issued in payment for the patents, especially where the corporation has declared a six per cent dividend on its stock during the year for which the tax is levied.</p> <p>The Comptroller is not obliged, under such circumstances, to make any deduction on account of patents which the corporation declares have proved worthless, especially .when it does not appear that the remaining patents are not worth the sum paid in capital stock for all of the patents.</p> <p>Certiorari issued out of the Supreme Court and attested on the 22d day of June, 1904, directed to Otto Kelsey, as Comptroller of the State of New York, commanding him to certify and return to the office of the clerk of the county of Albany all and' singular his proceedings had in relation to the assessment of a license fee and franchise tax against the relator for the year ending October 31, 1903.</p>

Certiorari issued out of the Supreme Court and attested on' the-19th day of March,1904, directed to the Board of Supervisors of St. Lawrence County, commanding them to certify and return to-the office of the clerk of -the county of St. Lawrence all and singular-their proceedings had in rejecting a certain- claim presented hy the-relator.- -

Appeal by the defendant, the United Traction Company, from a judgment of the County Court of Rensselaer county, entered in the office of the clerk of the county of Rensselaer on the 16th day ■of June, 1904, upon an order of said County Court, entered on the 15th day of June, 1904, affirming a judgment of the City Court of 'Troy in favor of the plaintiff, entered on the 25th day of November, 1903, and also (as stated in the notice of appeal) from the said ■order upon which…

Appeal by the relator, the Rochester Gas and Electric Company, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 20th day of July, 1904, opening a judgment herein, entered on the 27th day of June, 1903, and granting the respondents’ application to be made parties defendant in th'e above-entitled action.

Motion to put the 'above-entitled ease over the January, 1905; term of the court upon the ground that the appellant did not comply with rule 15 of the Rules of the Appellate Division in the Third Department by serving his points twenty days before ■ the commencement of the term. •

Appeal by the defendant, Harvey D. Montgomery, from so much of an order of the Supreme Court, made at the Otsego Trial Term and entered in the office óf the cleric of the county of Otsego on the 7th day of May, 1904, as provides “ that no sum or amount whatever be paid to, the said (defendant’s) counsel- for the services rendered by them on the said second trial on. the ground that there is no authority therefor.” The defendant was tried for the crime of murder in the first…

Appeal, by the plain tiff, Robert' J. McNally, from an order of the Supreme Court, -made at the Essex Special' Term and- entered in the office of the clerk of the county of Essex -on the 9t-li day of June, 1904, granting the defendants’ motion for a.retaxation of the plaintiff’s costs. , r - The action is one brought' for the foreclosure of a mechanic’s lien. The amount of t'he lien .claimed in the complaint was $1,576.56,'with interest from July 3, 1903.

<p>Appeal by the defendant, The Electric Water Power Company of Oneonta, from a judgment of the Supreme Court in fav’or of the plaintiff, entered in. the office of the clerk of the .county of Otsego on the 14th day of April, 1904, upon the decision of the court rendered after a trial at the Otsego Special Term.</p> <p>The action was for damages caused by the flooding of plantiff’s lands and for an injunction to restrain such flooding.</p> <p>The plaintiff owned about thirty, acres of land in the town of Oneonta upon a portion of which he had a factory' and warehouse for the manufacture and sale of fertilizers and chemicals. ■ The remainder of said lands, except the two and seven one-hundredths acres hereinafter mentioned, were used' for general farm purposes. The defendant owned about foky-seven acres of land in said' townj through which the Susquehanna river flows, and in the years 1898 and 1899 it erected dams across that river and constructed dikes and dams and created a large reservoir and by means of such dams and dikes raised the surface of said river eight feet or more.</p> <p>■ On the 9th day of. September, 1898, the plaintiff executed and delivered to the defendant an instrument or letter, as follows:</p> <p>“New York; September 9th, 1898.</p> <p>“ Mb. M. L, Keyes, '</p> <p> “Prst. of the Oneonta Electric Water Power Co., </p> <p>“ Oneonta, N. Y.:</p> <p>“ Dear Sib.— I will give yon the privilege to erect' a dam on my property known as the Fertilizer Co.’s land situated in the Town of Oneonta, and flood the land below the dam according to ,a sketch and measuring about 2 07/100 acres, for the sum of Seventy-five 00/1Ó0- Dollars ($75 00/100). •</p> <p>“Yours very respectfully,</p> <p>“A. SCHWARZENBACH.”</p> <p>and within two or three days thereafter the defendant made and delivered to the plaintiff its cheek for seventy-five dollars in acceptance of the proposition contained in the instrument above mentioned, which, check the plaintiff kept and lie' has. received and retained the proceeds thereof. Thereafter the defendant constructed a dike or dam on plaintiff’s property in accordance with the permission given in said instrument of September ninth, and in accordance with the sketch therein referred to, and in the latter part of the summer or early fall of 1899 the defendant filled its said reservoir, thereby flooding said two and seven one-hundredths acres of plaintiff’s land below said dike or dam on his lands. Thereafter such flooding was continuous, except for a short interruption in the summer of 1901. When the water in the reservoir is of the height of the crest of the overflow dam at the lower or westerly end of the reservoir, which is the dam across the Susquehanna river, it is on a level of a line about sixteen inches below the floor of the plaintiff’s warehouse, which is above said reservoir and above the dike or dam constructed on plaintiff’s land, and the water in the reservoir is frequently above the level of the crest of said dam. During all the time water has been held in said reservoir and by reason thereof, water has percolated through or under the dam or dike constructed by the defendant on plaintiff’s land, or through the soil beneath it, onto .the ¡plaintiff’s land and covered a portion -thereof not included in said two and seven one-hundredths. acres witli water and rendered about two acres thereof untillable. Such water so percolating through also damaged plaintiff’s fertilizers, and also the usable value of plaintiff’s factory and machinery. The court found the facts substantially as above stated and decided that the act of the defendant in collecting and retaining water in its reservoir and allowing the same to pass therefrom over the plaintiff’s lands, other than the two and seven one-hundredths acres, was unlawful and constituted a continuing trespass, and awarded plaintiff the damages it found he had sustained and an injunction enjoining the defendant from collecting and retaining water in its reservoir so long as the same percolates upon the lands of the plaintiff to his damage. From the judgment entered upon such decision the defendant appeals.</p>

<p>Failure of a municipal corporation to affirmatively prohibit the use of its sidewalks by bicycles—liability of.\ to a pedestrian injured, by a bicycle which was being ridden on the sidewalk. . I</p> <p>A city ordinance, which, after prohibiting the propulsion, or driving of vehicles, including bicycles, upon or along any sidewalk in the city, provides, “But nothing herein contained shall be construed to include the conveyance of children on sidewalks in small carriages, wagons or .sleds commonly used for such purposes, or the riding of bicycles on any street in said city not within the following described district, to wit: ” does not either permit or prohibit bicycles to be ridden on the sidewalks of the streets not within the district described in the ordinance, but at most only constitutes an implied permission to ride bicycles on any “street” not within the described district, viz., the carriageway of the street as distinguished from the sidewalk thereof.</p> <p>The failure of a city, which has not assumed to adopt an ordinance expressly permitting the riding of bicycles upon the sidewalks of the city streets, to adopt an ordinance prohibiting such use of the sidewalks, does not render the city liable for personal injuries sustained by a person in consequence of her being run over by a bicycle which was being propelled along the sidewalk of one of the city streets.</p>

<p>A judgment creditor, whose judgment is a lien on the share of the plaintiff in an action for partition, and expires pending the suit, is entitled to payment from, the proceeds, of sale where the complaiAÍ recognizes the existence of the, lien — a refusal, pending the pa/rtition suit, by the Sili'rogate’s Court to authorize the issuing of an execution and the expiration of the lien must be set up, if at all, by supplemental Complaint—the complaint speaks as of the date of the commencement of the suit. ' -</p> <p>One Orapser was the owner of a judgment recovered August 16,1893, which was a lien upon an undivided one-sixth interest in certain real estate conveyed byx the judgment debtor to one Le Boeuf. The judgment debtor died and letters ■ of administration were issued upon his éstate March 16, 1900, and by virtue of section 1380 of the Code of Civil Procedure, the statutory lien of the judgment terminated September 15, 1903.</p> <p>June 6, 1903> Le Boeuf brought -an action for a partition and sale of the premises, alleging that .he was the owner of ah undivided one-sixth of the premises in ques'tion subject to the lien of the judgment, and asking that the proceeds of the sale be divided between the parties according to their respective interests. June 13,1903, Le Boeuf served a supplemental and amended complaint containing substantially the same allegations and prayer for relief, and on August 1, 1903, he served another amended complaint containing sub- - stantially the same allegations and prayer for relief.</p> <p>In the meantime Crapser transferred the judgment to one Gillett, and on July 14, 1903, Gillett filed a petition with the surrogate for leave to issue an execution upon said judgment. The application was continued until August 10; 1903, when the surrogate denied it on the ground that the lien of the judgment would expire" before a sale could be had upon execution. August .15, 1903, Gillett obtained an order making him a party defendant" in the action and served an answer alleging his ownership of the judgment.</p> <p>August 19, 1903, Le Boeuf served an amended complaint alleging the transfer of the judgment to Gillett and the denial of Gillett’s application to the Surrogate’s Court, and claiming that his interest in the premises was free from the lien of the judgment. Gillett then served an amended answer insisting that his judgment should, be paid in the partition action.</p> <p>Held, that the plaintiff having by .all the complaints served by him, with the exception of the last, recognized the owner of the judgment as one of the parties for whose' benefit the action was brought, and having continued such recognition until it was too late for the owner of the judgment to resort to any other remedy to secure payment of his judgment, the plaintiff was estopped and precluded from raising any objection to the right of the owner of the' judgment to receive payment out of the proceeds of the partition sale;</p> <p>That the proceedings, in the Surrogate’s Court and the expiration of the lien of the judgment being facts which arose after the action was brought, the plaintiff could only take advantage thereof by a supplemental complaint served by permission of the court, which he did not obtain;</p> <p>That consequently the last complaint served by the plaintiff spoke as of the time of the commencement of the action and that the rights of the parties should be determined as of that time.</p>

Appeal by the defendant, Robert Weld, from an order of the Supreme Court, made at the New York Spécial Term and entered in the office of. the clerk of the county of New York on the 1st day of September, 1904, denying the said defendant’s motion for leave to intervene in an accounting between the plaintiffs and the other defendants.

<p> ^bduction in marrying a female unbar eighteen without her parent’s, consent—proof that the accused had at the time a wife is incompetent. </p> <p>Upon the trial of an indictment charging the defendant with the crime of abduction, as specified in subdivision 1 of section 282 of the Penal Code, in that he married a female under the age of eighteen years without the consent of her mother, who was her only living parent, and who had the legal, charge of her person, testimony that the defendant had a wife living at the time of his marriage with the abducted female is incompetent, as that fact is not an element of the crime charged in the indictment.</p>

. Appeal by the plaintiffs, John A. OampbeljL 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 Hew 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 29th day of March, 1904, denying the plaintiffs’ motion for a new trial made upon the minutes.

Appeal by the plaintiff, Charles Stumpf, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 17th day of June, 1904, upon a verdict of nonsuit rendered by direction of the com't after a trial at the Hew York Trial Term.

<p>Appeal by the plaintiff, Harold Nathan, as administrator, etc., of Martin Cassidy, deceased, from a judgment of the Supreme Court in favor of the defendant Frederick Uhlmann, entered in the office of the clerk of the county of New York on the 16th day of December, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27th day of November, 1902, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Aleck Aleckson, 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 22d day of March, 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 29th day of March, 1904, denying the plaintiff’s motion for a new trial made upon the minutes.^ The action was…

Appeal by the plaintiff, The Niagara Fire Insurance Company •of the City of New .York, 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 March, 1904, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

<p>Appeal by the plaintiff, The City Trust, Safe Deposit and Sure'ty Company of Philadelphia, from an interlocutory judgment of the Supreme. Court in favor of the defendant, John B. Haaslocher, as ' president of The Brewers’ Indemnity 'Fund Association, entered in ■ the office of the clerk of the county of New York on the 23d' day-of March, 1904, upon the decision of the .court, rendered after a trial at the New York Special Term, sustaining the said defendant’s demurrer to the plaintiff’s complaint.</p>

Oertiobari issued out of the Supreme Court and attested on the 18th day of February, 1904, directed to Robert Muh and others, composing the board of assessors of the city of Hew York, and to Edward M. Grout and others, composing the board of revision of assessments of the city of Hew York, commanding them to certify and return to the office of the clerk of the county of Hew York all and singular their proceedings had in rejecting a certain claim of the relator for damages…

Appeal by the defendant, Abednego Dewes, 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 3d day of June, 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 20tli day of May, 1904, denying the defendant’s motion for a new trial made upon the minutes.

<p>Installment of plumbing in a building under an agreement that it is to remain the property of the plumber until paid for — right of a purchaser of the property under a mm'tgage foreclosure sale — the plumber estopped by a neglect to assert his claim at the sale.</p> <p>After a contractor had installed the plumbing wo^k in a building under an agreement that the materials used should remain his property until fully paid for, the owner of the building mortgaged it and upon the foreclosure of the mort- . gages the premises were conveyed to a third party. The agreement that the materials used in the plumbing work should belong to the contractor until fully paid for was not recorded and neither the mortgagee nor the purchaser at the foreclosure sale lmd notice thereof.</p> <p>Held, that as between the contractor and the purchaser of the premises at the foreclosure sale, the plumbing equipment constituted a part of the realty and that the contractor, who had not been paid therefor, was not entitled to replevy the same;</p> <p>That the contractor, who, while not actually present at the foreclosure sale, knew that the property was to be sold and was in the salesroom on the day when the sale took place and gave no notice of his claim and made ho attempt in any way to enforce it, was estopped from asserting such claim as against the purchaser at the foreclosure sale.</p>

, Appeal by the defendant, Isaac M. Cohen, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 18th day of May, 1904, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term.

<p>Appeal by the defendant, Samuel Levy, 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 28th day of March, 1904, upon the verdict of a jury for $950, and also from an order entered in said clerk’s office on the fth day of April, 1904, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Mary McBride, as administratrix, etc.,•of Patrick McBride, deceased, 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 13th day of June, 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 22d day of July, 1904, denying the plaintiff’s motion for a…

Certíorari issued out of the Supreme Court and attested on the-18th day of December, 19-Ó3, directed to Thomas W; Plynes, commissioner of the department of correction of the city of New York, commanding him to certify and return to the office of the clerk, of the county of New York all and- singular his proceedings had, iff relation to the removal of the relator from the position of keeper in. the department of correction of the city of New York.

Appeal by the defendants, Elizabeth .Gibbins 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 Yew York on the 3d day of June, 1904, upon the decision of the court,, rendered after a trial at the Yew York Special Term in a partition action, adjudging ^líe appellants to have no right, title or interest, in or claim upon the premises described in said judgment.

Appeal by the plaintiff, James Hebron, 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 30th day of June, 1904, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27th day of June, 1904, denying the? plaintiff!s motion for a new trial made'upon the minutes.

Appeal by the defendant, George S. McAlpin, as executor, etc., of Sarah G. Nafew, deceased, 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 11th day of November, 1904, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the demurrer interposed by the plaintiff to the separate, further and partial defense set forth in the amended…

Appeal by the defendant, the Pennsylvania Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 6th day of May, 1904, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendant,.the E. P. Gleason Manufacturing Company, from a judgment of the Supreme Court in favor of. the plaintiff, entered in the office of the clerk of the county of New York on the 16th day of June, 1904, upon the decision of the court rendered after a trial at the New York Special Term.

<p>Insolvent building and. loan association — adjustment of an account with a borrowing stockholder, postponed until the-assets are marshaled for final distribution —</p> <p>. credit to the association of premiums paid to it.</p> <p>Where a building and loan association becomes insolvent and passes into -the hands of a receiver, an application made by a borrowing shareholder, while the assets of the association are being liquidated by the receiver, for ah adjustment of his account with the association, is premature and should be dismissed.', Such applications should be postponed until the assets of the' association are marshaled for the purpose of final distribution, when it will'be practicable to determine Upon a basis of settlement which will be fair to all creditors.</p> <p>Qumre, whether, in such a case, the-association is entitled to be credited with any portion of the -premium paid by the borrowing shareholder in order to secure the loan. ■ •</p>

i Appeal by the defendant, Ella G. Lee, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of tlie county of New York on the 23 st day of November, 1904, denying the defendant’s motion to vacate an order for her examination in supplementary proceedings and granting the plaintiff’s motion to punish the defendant for a contempt in failing to appear for examination pursuant to said order.

<p>What statement as to an increase of salary is too indefinite to create an obligation— declarations of a partner after the dissolution of the firm — when incompetent to establish any obligation joint or several—practice of printing a private letter of a judge in a brief, disapproved.</p> <p>Upon the trial of an action, brought against Francis H. Kimball and George K. Thompson, it appeared that from 1893 to June 4, 1898, the defendants were copartners doing business as architects, and that during this period the plaintiff was in their employ; "that in 1895, when the plaintiff was receiving a salary of thirty-six dollars per week with additional pay for overtime, he informed the defendant Kimball that he intended to leave the defendants’ employ unless he was given a larger salary; that Kimball then said that the defendants would make it worth the plaintiff’s while "if he would stay on; that the defendants-would increase his salary; that his, Kimball’s, idea was that if the plaintiff stayed on until the completion of certain buildings which the defendants were engaged in constructing, they would give the plaintiff an interest in the profits; that the plaintiff having asked what would be the amount of the increase in his salary,' Kimball said that'.the plaintiff could rest assured that the amount would be large because of -the enormous cost of the buildings; that the plaintiff then asked how this was to be arranged and that Kimball said, “You can depend upon me, I will see that you get a satisfactory amount; ” that the plaintiff continued in the employ of the defendants until after the completion of the buildings referred to and until the dissolution of the partnership</p> <p>in 1898, but did not receive any increase in salary or any interest in the profits of the defendants’ business.</p> <p>Held, that the arrangement between the plaintiff and Kimball was too indefinite to form the basis of any obligation on the part of the defendants;</p> <p>That the declarations of one of. the defendants, ma'de after the dissolution of the firm, were not admissible even as against the defendant making the declarations, for the reason that, as the liability sought to be enforced was joint, there could be no several recovery against one defendant. ^</p> <p>The action of a respondent, upon an appeal to the Appellate Division, in printing in his brief a private letter of one of the judges of the Court of Appeals as an authority in the Appellate Division," disapproved.</p>

<p>Interpleader — right of a warehouseman where two conflicting orders to transfer goods are served upon him to interplead the several claimants—when his recognition and acceptance of one of such orders does not prevent his interpleading the claimants — an offer to deliver the goods to the party adjudged to be entitled thereto is sufficient— the recital in a judgment of the facts found by the trial courtis improper — an allowance to the warehouseman based on the value of the goods in storage is improper.</p>

Appeal by the defendant, Daniel Sidney Appleton, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Few York on the 12th day of March, 1904, upon the decision of the court rendered after a trial at the Few York Special Term.

Appeal by the defendant, Hannah Elias, 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 7th day of September, 1904, granting an injunction pendente lite and appointing a temporary receiver. • Also an appeal by the plaintiff, John B.' Platt, from so much of said order as directs the receiver to pay the defendant Hannah Elias a monthly allowance of $500 and counsel fees.

Appeal by John Glass 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 26th day of May, 1904, confirming the report of commissioners of estimate and assessment in so far as it directs and makes awards to the T. H. Wheeler Company and others for certain fixtures, and refusing .to confirm said report as to the award to the appellant.

Appeal by the defendants, the Interborough Rapid Transit Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of New York on the 2d day of May, 1904, upon the verdict of a jury for $9,000, and also an appeal by each defendant from an order denying such .defendants’ motion for a new trial made upon the minutes, which orders were entered in said clerk’s office on the 2d day of May, 1904, and the…

<p>Assessment in street opening proceedings in the city of New Yos'k— the report of the commissioners becomes conclwiiw at once, on entry of the order confirming it — effect of a subsequent resolution of the board of estimate and apportionment directing that part of the assessment be borne by the city.</p> <p>Under the provisions of the revised Greater ¡New York charter relating to street opening proceedings (Laws of 1901, chap. 466, §§ 980-1005) upon the entry of the order finally confirming the report of the commissioners of estimate and assessment appointed in the proceeding the report becomes conclusive both as to the'amount to be paid to the property owners and the amount of the assessment to be paid by the. owners of the property benefited.</p> <p>The entry of the order -terminates the proceeding and no subsequent action by the city or by others interested in the proceeding can affect it; it can only be attacked by appeal or by an application to set it aside based upon some fraud, error or mistake in the proceeding.</p> <p>The fact that subsequent to the entry of the order finally confirming the report ana before the assessment included in the report has been entered in the i fldce of the collector of assessments and arrears, and has become a lien upon the property assessed, the board of. estimate and apportionment of the city passes a resolution (pursuant to section 980 of the revised Greater New York charter) directing that a portion of the expense of the proceeding shall be borne by the city at large, does not justify the court in vacating the final order confirming the report of the commissioners of estimate and assessment.</p> <p>Section 1017 of the revised Greater New York charter, which provides that “no assessments for any local improvements shall be deemed to be fully confirmed, so as to be due and be.a lien upon the property included in the assessment, until ten days after the title thereof, with .the 'date of confirmation, shall be entered, with the date of such-entry; in a record of the titles of assessments confirmed, to'be kept in the office of the .collector of assessments and .arrears,” does not prevent the final order confirming the report of the commissioners of estimate and assessment from being conclusive upon both the city and the property owners from the date of the entry thereof.</p> <p>Quaii’e, whether the board of estimate and apportionment had pówer to pass the resolution in question after the report of the commissioners of 'estimate and assessment had be.eh confirmed and as to the effect if any of such resolution.</p>

<p>Creditor’s action to obtain an adjudication that a transfer by one corporation t'O' anothervwas an illegal preference — the ’admission as a party to such creditor’$ action of a receiver of the first-meñtióned corporation, appointed in a sequestration action — the eorpm'ation receiving such illegal preference is not entitled, to a discontinuance tif the creditor’s action on paying the amount due to the'creditor instituting it-— tire receiver is entitled to an affirmative judgment.</p> <p>Á judgment creditor of the American Unión Life Insurance Company brought, an action to obtain an adjudication that certain transfers of securities made by the American -Union Life Insurance Company to the Security Trust and. Life Insurance- Company were- null" and void, and to obtain an accounting with respect to such property. Subsequently a .receiver of the American Union Life Insurance Company was appointed in an action brought-for the sequestration of its property. Such receiver was; by consent of the plaintiff, made a. "party to the first-mentioned action and he served" an answer which admitted, all the allegations of the complaint and demanded an affirmative judgment. a& prayed for in the complaint. This answer was served upon the Security Trust and Life Insurance Company. The receiver represented a large number of , creditors of t-lie corporation. ,* .</p> <p>The action "was tried at Special Tcrm and was decided in favor of the plaintiff and of the defendant receiver. Before the. decision had been filed or the judgment entered the Security Trust and Life Insurance Company made a motion to discontinue and dismiss the action upon the payment into court of the amount of the plaintiff's claim, principal and interest, together with the costs and expenses of the action, or upon payment into court of such sum as the court might deem just and proper.</p> <p>Held, that the motion was properly denied;</p> <p>That the receiver, having succeeded in the action, would be entitled to have an ■ affirmative judgment, as prayed for by him, irrespective of the right of the plaintiff to continue the action;</p> <p>That the mere payment of the plaintiff's claim did not dispose of the right of the receiver.</p>

<p>Surcharging executor's accounts—.amount recovered by the widow, as a claimamt on a statutoi'y reference, on which she was alloioed to testify. to transactions with the decedent — inferenceinfavor.of innocence and good faith. ■ •</p> <p>Where inferences are equally consistent with innocgnce or guilt, equally consistent With good faith or had, or equally consistent with the view that .one upon whom a duty is placed has or has not performed it, those inferences will be indulged which are consistent with innocence, with good faith, with diligence and performance of duty, rather than the opposing inferences.</p> <p>The widow of a' testator presented, a claim against the" estate. She also had shown an inclination to contest the validity of the will itself. The executors rejected the claim and it was referred pursuant to the statute. Upon the trial before the referee the widow was allowed, without objection on the part of the attorney for the executors, to testify to personal communications between herself and her deceased husband in violation of section 829 of the Code of Civil Procedure. Watson, one of the executors who had been the private secretary and business manager of the testator and who was entirely familiar with the merits of the claim, was sworn on the reference and gave testimony, which Was competent when given, sufficient to sustain the validity of the widow’s claim. The referee found in favor of the widow and the executors paid the judgment, thereby avoiding the contemplated contest of the will.</p> <p>Upon the executors? accounting, it was sought to surcharge the accounts with the amount of the judgment on the ground that the widow’s claim was invalid and that -the judgment was collusive. Upon such accounting, the testimony given by the executor -Watson on the hearing of the widow’s claim’was rejected because it was incompetent at the time of the accounting, and the - testimony given by the widow iipon the hearing of her claim was also rejected as of little or no weight because it was not competent when given.</p> <p>Held, that a decree surcharging the executors’ accounts with the amount of the judgment should be reversed and the-matter remitted for a rehearing;</p> <p>That as the. widow was a competent witness in the accounting proceedings, the executors were entitled to have her evidence received therein and to have the same fairly considered and weighed, and- that if such evidence established that her claim was a just claim the executors would bo protected in the payment thereof;</p> <p>That it was only by resolving against the executors’, inferences, as consistent with their good faith and with honesty as with bad faith and fraud, that the" conclusion could be reached that the executors were not entitled to credit for the amount paid in satisfaction of the widow’s claim;</p> <p>That the executors’ acts were to be judged in the light of the knowledge which they possessed when they paid the claim and that, when so judged, such acts could not be justly characterized as fraudulent, collusive or negligent. Patterson and Laughlin, JJ., dissented.</p>

<p>Mortgage held by a building arid loan Association —when a. surplus Arising on the foreclosure of a prior moi;tgage on the sarnie premises should be paid to its receiver ■ ' subject to the future adjustment of equities —when the mortgagor. 'ip not in default — he is relieved from monthly payments by the ■appointment of a receiver of the corporation. ...... ' ,</p> <p>November 7, 1900, a building and loan association, being the owner of certain . premises which were subject to a mortgage, entered into an agreement with John M. Fallón .and Maria T. Hallinan, who desired to purchase the. property,. ‘by which such parties subscribed for a number of the -shares of the capital stock of the association and paid on account of the premium and contract price §430. The capital stock so subscribed for was assigned by Fallon and Hallinan to the association as collateral security for their agreement to pay, “for a term coextensive with the term required -to mature or fully pay the aforesaid, shares of stock, which term it is estimated will be about twelve years, at the monthly rental of Thirty-four" and 35 /100 dollars, to be paid on the first of each and every month in advance during said term.” The agreement-further provided that if Fallon and Hallinan performed all the covenants contained in the agreement and made the payments as therein provided they were to have, in the meantime, "the quiet and peaceable possession of the premises, and at the expiration of the term the association was to give to them a good and sufficient, deed. It also provided that “ if any rent shall be due and unpaid for the period of sixty days or if default shall be made by the parties of the second part as to any of the covenants herein contained,” then the association might re-enter said premises and repossess the same.</p> <p>Fallon, who had acquired Hallinan’s interest in the agreement, made the monthly payments prescribed therein down to July 6, 1903. September 12,1903, a temporary receiver of the association was appointed and his appointment was made permanent February 34, 1904. Thereafter the premises were sold in an action brought to foreclose the mortgage above referred to, from which'sale a surplus resulted.</p> <p>In a proceeding instituted to determine the respective rights of Fallon and the receiver of the association to such surplus, it was '</p> <p>Held, that, as by the terms of the agreement, the association could not re-enter upon the premises until the monthly payments had remained unpaid “for the period of sixty days,” Fallon was not in default at the time the temporary receiver was appointed;</p> <p>That the appointment of the temporary receiver relieved.Fallon from any further obligation to make the prescribed monthly payments;</p> <p>That, consequently, Fallon’s rights under the contract were still in force;</p> <p>That the whole amount of the surplus should, however, be presently paid over to the receiver, for the reason that Fallon’s equities therein could not be determined until the assets of the association had been marshaled and its liabilities ascertained;</p> <p>That when this had been done, the rights of the respective parties, including any claim by Fallon because of improvements he had put upon the premises, - would be determined and settled according to their equities.</p>

<p>Appeal -by the defendants, The Broad Exchange Company and. another, from a judgment of the Supreme Court in favor of the-plaintiffs, entered in the office of. the clerk of the county Of New York on the 11th day of March, 1964, upon the report of a referee.</p>

Separate appeals by the defendants, The City of New York and by Charles Bimberg and others, copartners as National Equipment ■Company, 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'21st day of January, 1904, upon the verdict-of a jury for $10,000, and also from an order entered in said clerk’s office on the 21st day of January, 1904, denying the defendants’ motion for a new trial made…

• Appeal by the plaintiff, Estelle L. Salomon, from an order of the Supreme Court, made at the New York Special Term and entered in the office of th§ clerk of the county of New York on-the 9th day of January, 1905, denying the plaintiff’s motion to amend a final decree of absolute divorce by incorporating therein a provision for the support, maintenance and education of the two children, the custody of whom was awarded to plaintiff by said decree.

Appeal by the defendant, Marie E. Sempell Boul, 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 31st day of December, 1904, upon the report of. a referee.

Appeal by the defendant, John Crowley, 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 December, 1904, denying the defendant’s' motion to vacate and set aside an execution against his person.

Appeal by the defendants, James L. Wells and others, as commissioners of taxes and assessments 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 9th day of September, 1904, us amended by an order entered in said clerk’s office on the 6th day of October,. 1904, reducing an assessment of personal property for the purpose of taxation.