Volume 102 — New York Appellate Division Reports

Appeal by the defendant, John T. Williams, from a judgment of the Supreme Court in favor of the defendant, the Fagan Iron Works, entered in the office of thfe clerk of'the county of New York on the 20th day of June, 1904, upon the report of a referee.

Appeal by the plaintiff, the Chesapeake Coal Company of Baltimore City, a corporation, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 29th day of October, 1904, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the plaintiff’s demurrer to the defense contained in the amended answer of the defendant.

Appeal by the defendant, the Interurban Street Railway Company, from an order of the Appellate Term of the Supreme Court, entered on the 19tli day of March, 1904, affirming a judgment of the Municipal Court of the city of New York in favor of the plaintiff, entered on the 2d day of November, 1903.

Appeal by the defendants, George B. McClellan ■ and others, constituting the board of estimate and apportionment of the city of New 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 25th day of May, 1904, granting the relator's motion for a peremptory writ of mandamus requiring the defendants to meet and entertain, consider and pass upon the relator’s claim for services, and if…

<p>Appeal by the plaintiff, Catharine R. Bartley, an infant, by Robert Bartley, her guardian ad litem, from an order of the Supreme Court, entered in the office of the clerk of the county of Kings on the 6th day of January, 1904, setting aside the verdict of a jury in favor of the plaintiff.</p>

<p>Appeal by the Comptroller of the State of New York from an order of the Surrogate’s Court of the county of Orange, entered in said Surrogate’s Court on the 14th day of J uly, 1904, affirming an order of said Surrogate’s Court entered on the 5th day of October, 1903, determining the amount and value of the estate of Letty J. Libolt, deceased, for the purpose of a transfer tax; and also from an order of said Surrogate’s Court, entered on the 14th day of July, 1904, opening the hearing in the above-entitled proceeding and permitting the executors of Letty J. Libolt, deceased, to furnish and introduce certain evidence.</p>

<p>Appeal by the defendant, The City of Hew York, from a judgment of the Municipal Court of the city of Hew York, borough of Richmond, in favor of the plaintiff, entered on the 14th day of July, 1904, upon the verdict of a jury.</p>

<p>Appeal by the plaintiff, John Kulinen, from a judgment of the Supreme Court in favor of the defendant Alfred T. White, entered in the office of the clerk of the county of Kings on the 3d day of Hay, 1904, upon the dismissal of the complaint as to said defendant by direction of the court after a trial at the Kiugs County Trial Term. '</p>

<p>Charier party — when the charterers ham thereunder the duties of owners — a consignee of the cargo is entitled to notice before the cargo is discharged — what clause in the bill of lading does not limit the charterer’s liability to that of warehousemen.</p> <p>Where the charter party of a vessel provides that the captain, although appointed hy the owners, shall be under the orders and direction of the charterers as regards employment, agency or other arrangements; and the charterers agree “ to indemnify the owners from all consequences or liabilities that may arise from the Captain signing Bills of Lading or otherwise complying with the same,’’ the charterers, during the term of the charter party, are subject to the duties and responsibilities of ownership.</p> <p>Where, upon the arrival of the chartered vessel in port, the cargo thereof is discharged upon the dock of a third party, and, before the consignee of the cargo has been afforded a reasonable time within which to take charge of and secure it, the cargo is destroyed without negligence on the part of the charterers in consequence of the collapse of the dock upon which it has been discharged, the charterers of the vessel are liable to the consignee for the value thereof.</p> <p>A clause in the bill of lading under which the cargo was shipped, providing, " Goods to be taken from the ship by the consignees directly they come to hand in discharging the ship; and the carrier’s responsibility to cease package by package immediately the goods leave the ship’s deck or tackle. If not taken from alongside hy the consignees, they will be landed and deposited at the expense of the consignee and at his risk of fire, loss or injury on the dock or in warehouse or in craft,” does not in such a case relieve the charterers from liability or limit their liability to that of a warehouseman, where it appears that the vessel did not have any usual wharf at the port in question, or if she had, that such wharf was unavailable for use at the time gf her arrival, thus rendering it necessary for her to go to another wharf,</p>

Appeal by the defendant, Bachel Sachs, from a judgment of the Supreme Court in. favor of the plaintiff, entered in the office of the clerk of the county of Ki'ngs on the 18th day of March, 1904, upon the decision of the court rendered after a trial at the Kings County Special Term.

<p>Appeal by the defendant, the National Sugar Refining Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Kings on the 17th day of October, 1903, upon the verdict of a jury for $3,500, as against the appellant, the complaint having been dismissed by the court as to the defendant the Edward Stearns Lighterage and Transportation Company, at the close of the plaintiff’s case, and also from an order entered in said clerk’s office on the 19th day of October, 1903, denying the said defendant’s motion for a new trial made upon the minutes.</p>

<p>Employers' Liability Act — notice is a condition precedent to an action thereunder — the word “maintained” synonymous with ‘‘begun.’" ■</p> <p>The service of the notice prescribed by section 2 of the Employers* Liability Act (Laws of 1902, chap. 600) is a condition precedent to the commencement of an action brought solely under that act.</p> <p>The word “ maintained” used in the Employers’ Liability Act with respect to the service of the notice is synonymous or equipollent with the word “begun” or “ commenced."</p>

<p> Motion to compel an attorney to piosecute the action diligently or to stipulate that another attorney be appointed—in the order deciding the motion a referee should not be appointed to fx the attorney's compensation. </p> <p>Where the plaintiffs in an action make a motion to compel their attorney to proceed to prosecute the action diligently or to stipulate for the substitution of some other attorney, the court should not incorporate in the order denying the motion a provision appointing a- referee to determine the amount of the attorney’s compensation, where the right of the attorney to have his compensation so fixed was not litigated upon the motion and the moving parties object to its being so fixed.</p> <p>If the attorney deems that he is entitled to have the amount of his compensation fixed by a referee in a summary proceeding, he should be relegated to an independent motion for that relief.</p>

<p>Widow — election to accept a legacy in lieu of dower — effect of her death within a year pending an action by her to have the will declared invalid,.</p> <p>Where a widow, who, by her husband’s will, was bequeathed a legacy of §9,000 in lieu of dower, dies within the year following her husband’s death, during the pendency of an action which she had commenced to have the will declared invalid and the probate thereof revoked, upon the ground that the testator lacked testamentary capacity, the personal representative of the deceased widow is entitled thereafter to bring an action against the testator’s executors to recover the legacy bequeathed to the widow in lieu of dower.</p> <p>The action commenced by the widow cannot be construed as an action to recover her dower, nor as evincing an intention upon the widow’s part not to accept the provisions of the will.</p> <p>The widow was not called upon to make her election, between her statutory right of dower and the provisions of the will, until it was judicially established whether her husband had in fact made the will, and her election to reject the provisions of the will cannot be established in any other way than in the manner prescribed by the statute.</p>

Appeal by the plaintiff, Charles M. Mann, from so much of an order of the County Court of Niagara county, entered in the office of the cleric of the county of Niagara on the 3d day of October, 1904, as as permits the withdrawal by the defen dant of the amount of the tender theretofore paid into court, pursuant to an order directing the same.

Appeal by the defendant, Ezra 0. Havens, from so much of a judgment of the Municipal Court of the city of Buffalo in favor of the plaintiff, entered on the 26th day of July, 1904, as refuses to vacate a warrant of attachment theretofore granted in the action. The action was commenced in the Municipal Court of the city of Buffalo on the 10th day of June, 1904.

Appeal by the plaintiff, Robert A. Pelin, as administrator, etc., of Ernest D. Pelin, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Oswego on the 12th day of April, 1902, upon the dismissal of the complaint by direction of the court after a trial at the Oswego Trial Term.

<p>Appeal by the defendant, The City of' Syracuse, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 7th day of May, 1904, upon the report of a referee.</p>

Appeal by the defendants, Laurentine Y. Miller 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 Cattaraugus on the 31st day of January, 1901, upon the report of a referee.

Appeal by John Neun, a claimant against the city of Rochester, 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 Monroe on the 13th day of September, 1904, overruling objections made by the claimant to the petition herein.

<p>Trading stamps — chapter 657 of the Laws of 1904 requiring that they he redeemed in money is unconstitutional—quaere as to its validity, as applied to goods in a merchant’s possession when it was passed.</p> <p>Section 384q of the Penal Code, added by chapter 657 of the Laws of 1904, which prohibits persons, among other things, from issuing trading stamps or coupon tickets unless they “shall have legibly printed or written upon the face thereof the redeemable value thereof’’ in money, and which requires that such stamps, upon presentation, shall be redeemed in goods or money at the option of the holder when presented in number or quantity aggregating in money value not less than five cents in each lot, making a violation of its provisions a misdemeanor, and which excludes from the provisions of the section trading stamps issued by a merchant or manufacturer in his own name and redeemable by him, is in violation of the constitutional provision preventing the interference with “life, liberty or property without due process of law.”</p> <p>The statute is unconstitutional for the further reason that it creates a preferential class.</p> <p>Qucei’e, whether, if the statute were valid, a tradesman could be convicted thereunder for selling packages of tobacco in which were contained coupons not complying with the requirements of the statute, where the tradesman had such packages of tobacco in his possession before the statute became operative, and where it would have been impracticable for him to extract the coupons from the packages without tearing the revenue stamps and labels attached thereto.</p>

Appeal by the plaintiff, William Keating, by Nicholas Keating, his guardian ad litem, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Oswego on the 23d day of January, 1904, upon the verdict of a jury, and also from an order entered in said cleric’s office denying the plaintiff’s motion for a new trial made upon the minutes.

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

Appeal by the plaintiff, Bridget Morphy, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Cayuga on the 9th day of May, 1904, upon a nonsuit granted by the court after a trial at the Cayuga Trial Term, also from an order entered in said clerk’s office on the 9th day of May, 1904, denying the plaintiff’s motion for a new trial made upon the minutes, and also from an order entered on the 9tli day of May, 1904,…

<p>Negligence—death, from stepping upon a defective cleat and falling from a gangway, of one whose duty it was to replace the defective cleat — the absence of handrails does not justify a charge of negligence—assumption of risk.</p> <p>In an action brought under the Employers’ Liability Act (Laws of 1902, chap. 600) to recover damages resulting from the death of the plaintiff’s intestate, it appeared that the floor of one portion of the defendant’s factory was about three feet lower than that of another portion of such factory, and that in order to enable truck loads of wire to he wheeled from one portion of the factory to another, an inclined gangway had been constructed consisting of three planks, each twelve inches wide and twelve feet long, placed side by side; that the floor of the factory was made more or less slippery by a greasy fluid used in the process of manufacture, and that cleats had been placed upon the middle plank of the gangway to prevent employees from slipping; that there never had been any railing upon either side of the gangway, and that employees, when using such gangway, sometimes walked its entire length, and at other times stepped off or on at the sides.</p> <p>There was evidence that while, on the night of the accident, the intestate was helping to push a truck load of wire up the incline, his foot slipped upon a cleat, causing him to fall oil the gangway and to receive injuries from which he died; that the cleats had become worn and slippery, so as not to fully serve the purpose of preventing slipping; that the intestate had been employed in the factory for over three years, during which time the construction of the gangway and the general condition in the shop had remained unchanged; that for a year prior to the accident the intestate had been the night superintendent or foreman thereof, and had full charge thereof at that time; that as such night superintendent and foreman he had the right to, and did, discharge men and to order the repair of machines; that at various times he repaired the inclined gangway itself and renewed the cleats thereon; that in the course of his work he repeatedly passed up and down over the gangway, and that upon the night of the accident he h.id been up and down it several times; that there were on hand in the factory cleats to replace those in use.</p> <p>Held, that a judgment entered upon a verdict in favor of the plaintiff should be reversed, for the reasons:</p> <p>Mrst, that it was the duty of the intestate to replace the cleats upon the gangway if they were worn and defective, and that his failure to do so barred a recovery by the plaintiff;</p> <p>Second, that it was error for the trial judge to permit the jury to predicate negligence upon the absence of handrails on the gangway; and,</p> <p>Third, because the verdict of the jury, that the intestate did not understand and assume any tisks incident to the construction and use of the gangway, was against the weight of evidence.</p>

Appeal by the defendant, the Retsof Mining Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Livingston on the 11th day of July, 1904, upon the verdict of a jury for $6,000 as reduced by stipulation, and also from an order entered in said clerk’s office on the 11th day of July, 1904, denying the defendant’s motion for a new trial made upon the minutes, with notice of an intention to bring up for…

Appeal by the defendant, the Remington 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 Herkimer on the 9th day of August, 1904, upon the report of a referee, and also from an order entered in said clerk’s office on the 9th day of August, 1904, granting the plaintiff an extra allowance of costs.

<p>Wire insurance policy — transfer, in violation of its provisions, of the title to the property insured—presumption from the recording of a deed,— testimony of interested parties in contradiction thereof presents a question for the jury — effect of a motion for the direction of a verdict — when not a waiver of the right to go to the jury—■ disregard of the general rule in this respeat'where the rule works an injustice.</p> <p>Upon the trial of an action brought to recover upon a policy of fire insurance issued by the defendant to the plaintiff, Solomon Rosenstein, and by him subsequently made payable to the plaintiff association, the defendant repudiated liability under a clause of the policy prohibiting “any change, other than by the death of the insured * * * in the interest, title or possession of the subject of insurance, whether by legal process or judgment or by voluntary act of the insured, or otherwise,” without the consent of the insurer.</p> <p>It appeared that prior to the fire a conveyance of the insured property executed by Solomon Rosenstein to his son had been duly recorded. The plaintiffs claimed that there had been no actual effective delivery of this conveyance or change of possession or intention to have it operative as between the parties. The plaintiff Rosenstein and his son gave evidence tending to show that there was no change in ownership or possession under the deed.</p> <p>At the close of the evidence both parties moved for the direction of a verdict and the court directed a verdict in favor of the plaintiffs. The defendant excepted to the direction of the verdict in favor of the plaintiffs, but did not specifically request that any issue of fact be submitted to the jury.</p> <p>Reid, that the recording of the deed from the plaintiff Rosenstein to his son created a presumption that it had been delivered and that the title and ownership of the property in question had been transferred to the plaintiff Rosenstein’s son;</p> <p>That the plaintiff Solomon Rosenstein and his son, both being interested witnesses, their testimony in contradiction of the presumption above stated created an issue of fact which the court was required to submit to the jury;</p> <p>That the motion of the defendant’s counsel for the direction of a verdict simply amounted to a claim that even if the question of fact was settled in the plaintiffs’ favor, the defendant was still entitled to a dismissal of the complaint, and that the defendant’s exception to the direction of a verdict in favor of the plaintiffs clearly indicated that the defendant did not intend to concede that the plaintiffs were entitled to recover as matter of law or to waive the submission of any question of fact to the jury;</p> <p>That, while it is the general rule that where, upon the close of the evidence, each side asks to have a cause disposed of as involving only questions of law, any questions of fact actually existing will be regarded as having been so decided as to sustain the disposition made by the trial judge, and also-that under certain circumstances a party who asks to have a cause disposed of as involving only questions of law, and neglects specifically to request the court to submit issues of fact, will be deemed to have waived his right to have such issues of fact passed upon by the court or jury, such rule is based upon reason and is governed somewhat by the circumstances of the particular case;</p> <p>That, in the case at bar, there had been no waiver by the defendant of its right to go to the jury upon the question of fact;</p> <p>That an appellate court may waive or disregard such rule where its strict application would work injustice;</p> <p>That, even if the question of fact before stated were to be regarded as having been decided in the plaintiffs’ favor, the plaintiffs, under the principles laid down by the Appellate Division in its decision (reported in 79 App. Div. 481) rendered upon an appeal from a judgment entered on the former trial of the action, were not entitled to recover.</p>

<p>Appeal by the defendant, Charles A. Beaman, from a judgment of the County Court of Monroe county in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 5th day of October, 1904, upon the verdict of a jury affirming a conviction of the defendant before a police justice of the city of Rochester and a jury upon a charge of having sold adulterated milk in said city.</p> <p>The defendant was charged with selling impure, unhealthy. and adulterated milk in violation of the Agricultural Law of the State of New York.</p>

Appeal by the plaintiff, Carl J. Weideman; from a judgment of the County Court of Erie county in favor of the defendants, entered in the office of the clerk of the county of Erie on the lOtlx day of August, 1904, upon the decision of the court, dismissing the plaintiff’s complaint. The action was brought for the foreclosure of a mortgage which by its original terms was due at the time of the commencement of the action.

Appeal by the plaintiff, Peter Iesief, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Onondaga on the 27th day of January, 1903, upon the dismissal of the complaint by direction of the court after a trial at the Onondaga Trial Term.

<p>Attorney and client — remedy of the attorney where a settlement is made by his client without his consent — what must be slmon on an application under section 66 of the Code of Civil Procedure.</p> <p>Where the plaintiff in an action, without the knowledge or consent of her attorneys, effects a settlement of the action, such attorneys may, if the plaintiff is not financially responsible, enforce their lien for services either in an action in equity or in a proceeding under section 66 of the Code of Civil Procedure.</p> <p>The court will rarely, if ever, permit the action to be continued for the benefit of the attorneys.</p> <p>An application by the attorneys for an order under section 66 of the Code of Civil Procedure will be denied where the moving papers do not show the amount of the compensation claimed by the attorneys or that the plaintiff is not financially responsible.</p>

<p> Motion for a new trial granted because of the falsity of the testimony of one of the plaintiff’s witnesses—the plaintiff’ should not be charged with the costs of the motion, and of a reference ordered on the motion, but such costs should be made to abide the event. </p> <p>After an action brought to recover damages resulting from the death of the plaintiff's intestate, caused by the alleged negligence of the defendant, had been tried and had resulted in a verdict for the plaintiff, the defendant made a motion for a new trial upon the ground that a witness for the plaintiff, whose testimony the trial court had charged was essential to the plaintiff’s success, had testified falsely. The motion, which involved charges of misconduct on the part of the attorneys for the respective parties, was referred to a referee, who found on satisfactory evidence that the testimony given by the witness in question was false. The trial judge confirmed the referee’s report, set aside the0 judgment entered on the verdict and directed a new trial, charging the plaintiff with the costs of the motion and of the reference.</p> <p>Held, that the order should be modified so as to make the costs of the motion and of the reference abide the event, and that as so modified it should be affirmed, without costs;</p> <p>That, as the plaintiff was entitled to have the jury pass upon the question of the truthfulness of the evidence given by the witness in question, the costs ought not to be awarded as though the verdict was certainly procured by perjured evidence, but upon the theory that there was further evidence secured since the trial as to the falsity of the testimony given by such witness.</p>

Appeal by Mary J. McLean 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 Monroe on the 7th day of December, 1903, appointing commissioners of appraisal in the above-entitled proceeding, and also from an order entered in said clerk’s office on the 20th day of July, 1904, confirming the report of said commissioners and directing the payment to the appellant of the award in accordance with such report.

Appeal by the defendant, the National Biscuit 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 17th day of May, 1904, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 18th day of April, 1904, denying the defendant’s motion for a new trial made upon the minutes.

<p>Negligence — injury to an employee from the failure of a coemployee or the foreman to properly place a snatch block under a windlass.</p> <p>In an action brought to recover damages for personal injuries sustained by the plaintiff while employed by the defendant in raising, by means of a windlass, timbers forming part of a trestle in the process of construction, it appeared that the legs of the windlass were fastened by screws to a frame of timbers, and that to prevent the strain of the weight being raised from being exerted in a horizontal direction against the windlass, and thus pulling it from its timber supports, an adjustable appliance called a snatch block was provided, which, when adjusted in its proper place under the windlass, would result in throwing the strain vertically on the drum of the windlass and thus hold it firmly to the timber supports; that the plaintiff’s injuries resulted from the fact that the snatch block had been improperly placed in front of the windlass instead of under the windlass, thus throwing the strain of the weight horizontally upon the windlass and tearing it from its fastenings.</p> <p>The defendant had furnished competent employees and workmen, and had instructed the workmen how to adjust the snatch block. The defendant’s foreman was not present when the snatch block was last adjusted, and it did not distinctly appear who then adjusted it.</p> <p>Held, that a judgment entered upon a verdict in favor of the plaintiff should he reversed;</p> <p>That the negligence which caused the accident was that óf a coemployee of the plaintiff, viz., either that of the foreman in failing to properly adjust the snatch block in the first instance, or that of some employee in interfering with it after it had been properly adj usted, and that in either event the defendant was not liable.</p> <p>McLennan, P. J., dissented. .</p>

Appeal by George N. Hawley and another from a judgment of the County Court of Monroe county, entered in the office of the clerk of the county of Monroe on the 16th day of July, 1904, upon the decision of the court, sustaining the canvass of an election held in the village of Webster on the 7th day of June, 1904, upon a proposition for the incorporation of the village.

Appeal by the plaintiff, Elisha D. Eames, from a judgment of the Supreme Court in favor of' the defendants, entered in the office of the clerk of the county of Jefferson on the 28th day of September, 1903, upon the decision of the court, rendered after a trial at the Jefferson Special Term, dismissing the plaintiff’s complaint upon the merits and dissolving an injunction theretofore granted in the action.

Appeal by the defendants, Byron D. Houghton and another, from a judgment of the Supreme Court in favor of the relators, entered in the office of the clerk of the county of Oswego on the 19th day of Hovember, 1904, upon the decision of the court, rendered after a trial at the Oswego Special Term, adjudging the relators to be entitled to office as members of the board of health of the city of Oswego, H. Y., ousting and excluding the defendants from said board.

<p>Insurance broker, obtaining insurance for Ms principal from an apparent agent of an insurance company — right of the principal, where the premium was paid by Mm to the brolcer and by the latter to the alleged agent, but was not paid by the latter to the insurance company, to recover against the broker—the broker must exercise ordinary care and prudence and good faith.</p> <p>An insurance agent, employed by a hotelkeeper to act as a broker in procuring a policy of fire insurance on the hotel, acts as the hotelkeeper’s agent, and if such broker secures a policy of insurance, from a person who is apparently an agent of the insurance company issuing the policy, and pays over to such agent the premium furnished to him by the hotelkeeper, the fact that the policy of insurance thus obtained is subsequently canceled by the insurance company because the alleged agent of the insurance company was not in fact such and did not turn over the premium to it, will not render the broker liable to the hotelkeeper for the premium, unless it is found that the broker acted negligently or in bad faith toward the hotelkeeper.</p> <p>An agent, undertaking to perform services for his principal, does not warrant that he will commit no mistake or error in performing such services, but simply that he will exercise ordinary care and prudence and will act in good faith.</p>

Appeal by the defendant, the Medina Quarry Company, from a judgment -of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orleans on the 22d day of April, 1904, upon the decision of the court, rendered after a trial at an adjourned term of the Orleans Special Term, granting an injunction against the defendant,' and also from an order entered in said clerk’s office on the 10th day of June, 1904, denying the defendant’s motion to…

Appeal by the defendants, Stanley Lockwood and another, from a judgment of the County Court of Allegany county, entered in the office of the clerk of the county of Allegany on the 5tli day of January, 1904, upon the decision of the court, affirming a judgment of the Justice’s Court in favor of the plaintiffs.

<p>Appeal by the defendant, Orin Cole, from a judgment of the County Court of Oswego county in favor of the plaintiff, entered in the office of the clerk of the county of Oswego on the 18th day of June, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 12th day of June, 1903, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>A resident of one county committed to an asylum for insane criminals for-an offense committedin another county — the latter county cannot recover from the former the expense of his support — effect of payments having been made — vested rights under a statute—presumption as to its being a town rather than a county charge.</p> <p>September 27, .1885, one Briggs, an unmarried man, living with his. parents in the town of Sandy Creek, Oswego county, was indicted by a grand .jury in Jefferson county for a crime alleged to have been committed by him in said county. Upon his arraignment he entered a plea of insanity, which resulted in a determination that he was insane and his confinement in the Utica asylum until February 28, 1898. On the latter date: he was transferred to the Asylum for Insane Criminals ¡at Auburn and later was. transferred to the Matteawan State. Hospital, where he has since been confined. The county of Jefferson has paid for the support and maintenance of Briggs during the entire period, and, until 1897/ was reimbursed therefor" by the county of Oswego.</p> <p>Section 662 of the Code of Criminal Procedure provides that when’a person pleading insanity in. criminal proceedings is sent to a .State lunatic .asylum “ the. expenses of sending the defendant to the asylum, of keeping him there and of bringing him back are, in the first .instance,. chargeable to the county from which he was sent, but the county may recover them from the estate of the defendant if he have any, or from a relative, town, city or county bound: to pirovide for . and maintain him elsewhere.”</p> <p>In an .action brought by the county of Jefferson .against the county of Oswego to recover' the amount which it had paid for Briggs’ support and maintenance since 1897 it appeared that Briggs had no estate or relatives from which the expenses of his support could be collected.</p> <p>Held, that the plaintiff could not recover;</p> <p>That assuming that Briggs was au indigent insane person, and that., at the commencement of his confinement, there was in force a statute (Laws of 1874, chap. 446, tit. 1, § 14, as amd. by Laws of 1880, chap. 164) which imposed upon the defendant county liability for his maintenance, these circumstances did not entitle the plaintiff to recover, as said section 14 was specifically repealed by chapter 545 of the Laws of 1896 and a different scheme provided by that act for the support of persons situated as Briggs was;</p> <p>That the failure of the Legislature to amend that provision of the Code of Criminal Procedure, which provides, “ The county may recover them from the * "" ® county hound to provide for and maintain him elsewhere,” did not establish an intention on the part of the Legislature to continue the defendant’s liability for the support of Briggs;</p> <p>That the plaintiff county did not acquire by virtue of section 14 of title 1 of chapter 446 of the Laws of 1874 any vested rights against the defendant which it was not competent for the Legislature to take away by repealing the said section;</p> <p>That, assuming that Briggs was a pauper, the plaintiff was not entitled to recover, as, in the absence of proof, which it was incumbent upon the plaintiff to produce, that the hoard of supervisors of the defendant county had filed the determination abolishing the distinction between town and county poor, it would he presumed that the support of Briggs would he a charge upon the town in which he resided rather than upon the county;</p> <p>That the action of the board of supervisors of the defendant county in auditing and paying for several years the claims made by the plaintiff for the support of Briggs did not constitute an admission of liability which would take the place of other evidence.</p> <p>McLennak/P. J., and Williams, J., dissented.</p>

Appeal by tbe plaintiff, John W. Moisen, from an order of the County Court of Rockland county, entered in the office of the clerk of the county of Rockland on the 19th day of September, 1904, as resettled by an order entered in said clerk’s office on the 8th day of October, 1904, permitting the defendant to serve an amended answer.

Appeal by the plaintiffs, Benjamin L. Ludington and another, as substituted trustees under the last will and testament of Robert Barkley, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Westchester on the 27th day of April, 1904, upon the decision of the court, rendered after a trial at the Westchester Special Term, sustaining the defendants’ demurrers to the plaintiffs’ complaint, and dismissing…

Appeal by the defendant, The City of New York, from judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 18th day of April, 1904, upon the verdict of a jury for $950, and also from an order entered in said clerk’s office on the 21st day of April, 1904, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the Town of Eastchester and another from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 12th day of November, 1904, appointing commissioners to assess damages to the property of John Borup, resulting from a change of grade of Jefferson place, in the town of Eastchester, N. Y.

Appeal by the defendants, J. B. M. Grosvenor 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 14th day of December, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 17th day of December, 1903, denying the said defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, The City of New York, from a final order of the Municipal Court of the city of New York, borough of The Bronx, in favor of the plaintiff, entered on the 30th day of November, 1904.

Appeal by the defendant, August Fleck, from an order of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, entered on the 21st day of April, 1904, vacating and setting aside a judgment in favor of the defendant.

Appeal by the defendant, the Interborough Rapid Transit Company, from a judgment of the Municipal Court of the city of New York, borough of The Bronx, in favor of the plaintiff, entered on the 22d day of August, 1904, upon the decision of the court awarding the plaintiff $100 damages in an action for negligence.

Appeal by the defendant, the Societa Italiana di Mutuo Soccorso di Brooklyn, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, entered on the 25th day of October, 1904, upon, the decision of the court.

Appeal by the defendant, the Prince Line, Limited, 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 5th day of February, 1904, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 15tli day of February, 1904, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Sylvester H. Kneeland and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Westchester on the 8th day of April, 1904, upon the decision of the court, rendered after a trial at the Westchester Special Term, directing a foreclosure sale.

Appeal by the plaintiff, William Cornell, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 2d day of July, 1901, upon the decision of the court, rendered after a trial at the Queens County Special Term, sustaining the defendant’s demurrer to the plaintiff’s complaint.

Appeal by the defendant, the Flatbush Gas Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 8th day of April, 1904, upon the verdict of a jury for $950, 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 defendant, the Interurban Street Railway Company, from a judgment of the County Court of Westchester county in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 18th day of February, 1904, upon the verdict of a jury for $400, 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.

Appeal by the defendants. The President and Trustees of the Village of Ossining, from a judgment of the County Court of Westchester county in favor of the plaintiff, entered in the office of the cleric of the county of Westchester on the 23d day of November, 1903, upon the verdict of a jury rendered by direction of the court.

<p> Incompetent testimony—the proffer and acceptance thereof constitutes a waiver of the objection that evidence, offered in contradiction of it, is incompetent. </p> <p>Upon the trial of an action one Maryon, in whose shoes the plaintiff stood, was permitted, without objection, to testify on his direct examination that he had a conversation with the defendant who agreed to pay him ten per cent for certain collections “ the same he would an attorney.” The defendant testified on direct examination that he had a conversation with Maryon regarding the employment of attorneys to collect accounts and was then aslced, “Did you or did he agree to pay one-half of whatever the attorney charges were that you incurred?” The question was objected to as incompetent because the agreement was reduced to writing and such objection was sustained unless the defendant could show a change in the written agreement. The testimony given by Maryon and by the defendant referred to the same matter.</p> <p>Held, that the court, having taken Maryon’s testimony, should have permitted the defendant to give testimony of the same kind which tended to contradict Maryon’s testimony, and that the refusal to do so constituted an error requiring the reversal of a judgment in favor of the plaintiff.</p>

<p>Appeal by the plaintiff, Lorenzo Coppola, 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 9th day of December, 1903, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term.</p>

<p>Demand on the city of New York, before action on a claim against it—a compliance with section 149 of the city charter is not sufficient as a demand under section 261 thes-eof.</p> <p>Compliance with the provisions of section 261 of the Greater New York charter, which provides, “No action or special proceeding, for any cause whatever, shall be prosecuted or maintained against The City of New York, unless it shall appear by and as an allegation in the complaint or necessary moving papers that at least thirty days have elapsed since the demand, claim or claims upon which such action or special proceeding is founded were presented, to the comptroller of said city for adjustment, and that he has neglected or refused to make an adjustment or payment thereof for thirty days after such presentment,” is a condition precedent to the maintenance of an action against the city of New York, and although the statute is silent as to the person from whom the notice required hy said section shall emanate, such notice must emanate from the claimant or his agent.</p> <p>A compliance by an official of one of the city departments with section 149 of the Greater New York charter, which requires the submission of all bills and vouchers to the department of finance, is not available to the persons rendering such bills as a compliance with the provisions of section 261 of the Greater New York charter, so as to entitle such persons, in the event of the rejection of their bills, to maintain an action against the city without following the course of procedure prescribed by section 261.</p>

<p>Appeal by the defendant, William H. Jenks, 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 15th day of February, 1904, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the 10th day of March, 1904, denying the •defendant’s motion for a new trial made upon the minutes.</p>

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

<p>Appeal by the defendant, The New York, Ontario and Western 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 Rockland on the 21st day of April, 1904, upon the' decision of the court, rendered after a trial at the Orange Special Term, overruling the defendant’s demurrer to the plaintiff’s complaint.</p>

<p>Appeal by the plaintiff, Sarah McConnell, as administratrix, etc., of Matthew McConnell, deceased, 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 13th day of J une, 1904, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 30th day of June, 1904, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the plaintiff, John J. Kirkpatrick, "from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Suffolk on the 30th day of March, 1904, upon the verdict of a jury, and also from an order bearing date the 15th day of March, 1904, and entered in said clerk’s office, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, Max Solomon, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 16th day of March, 1901, upon the verdict of a jury for $2,750, and also from an order entered in said clerk’s office on the 21st day of March, 1901, denying the ddfendant’s motion, for a new trial made upon the minutes.</p>

Appeal by the relator, William 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 19th day of December, 1904, quashing a writ of certiorari.

<p>Appeal by the defendants, George B. McClellan, as mayor 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 19th day of December, 1904, continuing pendente lite a temporary injunction theretofore granted in the action.</p>

Appeal by the defendant, Claus Doscher, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the plaintiff, entered on the day of December; 1904. '

Appeal by the defendant, Catherine Doring, from a judgment of the Municipal Court of the city of New York in favor of the plaintiff, entered on the 11th day of October, 1904.

Appeal by the defendant, Charles G. Peterson, from a judgment of the Supreme Court in favor of the plaintiff William S. Goddard, as sole surviving copartner of Mego wan & Goddard, doing business under the firm name of C. Stevens & Co., entered in the office of the clerk of the county of Kings on the 17th day of November, 1903, upon the verdict of a jury, and alsp from an order entered in said clerk’s office on the 20th day of November, 1903, denying the defendant’s motion…

Appeal by the defendants, Daniel J. Creem. and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 25th day of January, 1904, upon the verdict of a jury, which as to the first cause of action was rendered by direction of the court,.and also from an order entered in said clerk’s office on the 25th day of January, 1904, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the petitioner, George S. Scofield, 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 Richmond on the 29th day of Hovember, 1904, denying his application for a peremptory writ of mandamus.

<p>Cross-appeals by the plaintiff, the Rocldand' Lake Trap Rock Company, and by the defendants, the Village of Port Chester and others, from portions of a judgment of the Supreme Court, entered in the office of the clerk of the county of Westchester on the 12th day of December, 1903, upon the report of a referee.</p>

Appeal by the defendant, The Brooklyn and New-York Ferry Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 6th day of February, 1905, denying defendant’s motion to modify an order for a new trial upon the minutes, by striking therefrom the recital that said order was made upon filing the stenographer’s minutes.

Appeal by the defendant, Josiah J. White, 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 1st day of ¡November, 1904, denying the defendant’s motion to resettle a prior order entered in said clerk’s office on the 27th day of October, 1904, and directing that said prior order stand and remain in full force and effect, and commanding the defendant to appear and submit to an…

Appeal by the defendant, Frank H. Leonard, 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 January, 1905, adjudging the defendant guilty of contempt in having disobeyed an order in proceedings supplementary to execution and imposing a fine for said contempt.

Appeal by the defendants, Rosalie L. Hill, individually, and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 26th day of October, 1904, upon the decision of the court rendered after a trial at the Kings County Special Term. .

Motion by Joseph H. Adolph and others, under section 90 of the Highway Law, to confirm an order of the County Court of Orange county,' entered in the office of.the clerk of the county of. Orange in December, 1904, directing the laying out of a highway less than three rods in width.

Appeal by the defendant, the Winchester Repeating Arms Company, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 9th day of January, 1905, denying the defendant’s motion for an order requiring plaintiff to make the complaint more definite and certain.

<p>Appeal by the plaintiff, Mary F. Cushman, as executrix, etc., of Thomas H. Cushman, deceased, from an interlocutory judgment of the Supreme Court in favor of the defendants, Harry C. Cushman and Rebecca W. Sypher, entered in the office of the clerk of the county of Kings on the 17th day of August, 1904, upon the decision of the court, rendered after a trial at the Kings County Special Term, sustaining the said defendants’ separate demurrers to the plaintiff’s complaint.</p>

Appeal by the defendant, Rudolph Sickinger, 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 22d day of April, 1904, upon the decision of the court, rendered after a trial at the Kings County Special Term, declaring void a certain deed of premises in the borough of Brooklyn, New York city.

<p>Assessment for taxation — it should not include in one assessment several parcels of land belonging to different owners— the land assessed should be described by stating its amount or by reference to a map or by other description adequate to point it out.</p> <p>Chapter 114 of the Laws of 1883, as amended by chapter 163 of the Laws of 1885, provided that “ the board of assessors of the city of Brooklyn shall have power and jurisdiction, and they are hereby directed and required in all cases where any tax, assessment or water rate levied or imposed, or attempted to be levied or imposed, on any land in said city prior to the first day of July, eighteen hundred and eighty-two, remains unpaid and in arrears, except as is hereinafter otherwise provided, to examine into and fix, adjust and determine as to each parcel of land how much of said arrearages ought, in the way of tax, assessment and water rate, in fairness and justice now presently to be laid, assessed and charged against and actually collected from said land, by reason of any and all the matters and things covered or attempted or intended to be covered, or done or attempted or intended to be done, in the laying and assessing the said taxes, assessments or water rates so in arrears as aforesaid, and the said board, in dealing with said arrearages as matters of fact according to their judgment of what shall be fair and just as hereinbefore directed, shall treat the same without regard to any supposed want of jurisdiction, irregularity or defect in any of the proceedings had for the levying, imposing or confirming any of said taxes, assessments or water rates so in arrears.”</p> <p>Section 2 of the said act provided that the board should keep a record of its proceedings, “ in which shall be entered their determination as to the amount to he charged and assessed upon and against each parcel of land as aforesaid, designating the same by the block and lot numbers on the assessment maps in their office,” and, further, that when the board had thus acted and properly certified the result, its determination should constitute a valid and binding tax, assessment and lien upon the lands so designated in lieu and instead of all outstanding claims.</p> <p>Section 3 of the act provided that it should not be necessary in the list of the property to be sold, in the certificate of the board of assessors, in the advertisement of the sale or in any notice to state the name of the owner of the premises, nor “to describe the premises affected otherwise than by the said block and lot numbers on the assessment map of the ward.”</p> <p>From 1853 down to July, 1882, four lots in the city of Brooklyn, although plotted upon the assessment maps of the city as separate lots and known by different numbers, were, except in the year 1862, assessed together as one parcel. Three of said lots and a half interest in the fourth lot were owned by one individual, while the remaining half interest in the fourth lot was owned by a number of other individuals.</p> <p>In January, 1886, the board of assessors of the city of Brooklyn, assuming to act under the provisions of the statute above set forth, certified that the just amount of the arrearages of taxes, assessments and water rates due upon the four lots was a particular sum, and charged such sum against the four lots as one parcel.</p> <p>Held, that the assessment for arrearages thus fixed by the board of assessors was invalid as to the group of individuals owning the half interest in one of the four lots included in the assessment, for the reason that, in order to relieve their property from the burden of the assessment, they would be obliged to pay the entire assessment levied upon all four lots;</p> <p>That it was the purpose of the statute to require the board of assessors to adjust the arrearages to each parcel of land, not as it might have been previously erroneously assessed, but as fixed by the assessment maps of the city of Brooklyn;</p> <p>That it is a fundamental rule of taxation that the property to be assessed, and which may ultimately be taken or sold for the payment of the taxes, must be described, either by stating the amount of land or by a reference to a map or other description, so that the same may be surveyed or pointed out.</p>

Appeal by the plaintiff, James N. Butterly, and by the defendants, Charlotte L. Chase and another, from an order of the Supreme Court, made at the Queens County Special Term and entered in the office of the clerk of the county of Kings on the 22d day of November, 1904, striking out the names of the defendants Chase and Augustine and changing the form of the complaint from one in a suit in equity to one in an action at law, and also denying the' plaintiff’s motion for a…

<p>Appeal by the defendant, the Brooklyn Heights Railroad Company, from an order of the County Oourt of Kings county, entered in the office of the clerk of the county of Kings on the 13th day of April, 1904, denying the said defendant’s motion for a new trial made upon the ground of newly-discovered evidence.</p>

Appeal by the defendants, James W. Ketcham and another, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the cleric of the county of Kings on the 7th day of November, 1904.

Appeal by the plaintiff, Holton M. Grotty, 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‘9tli day of January, 1905.

Appeal by the plaintiff, Morris Salzman, 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 31st day of October, 1904, denying the plaintiff’s motion for an injunction pendente lite restraining the defendants from doing the precise acts to restrain which the action was brought.

Appeal by the defendant, Charles F. Lewis, as treasurer of Nassau county, 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 Nassau on the 22d day of October, 1904, directing the issuance of a peremptory writ of mandamus.

<p>Appeal by George G. Butcher, individually, and as executor, etc., of Patrick Dally, deceased, from portions of a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 17th day of March, 1904, judicially settling the accounts of the said executor, and also from an order entered in said Surrogate’s Court on the 17th day of March, 1904, denying the appellant’s motion for a rehearing and amendment of his account.</p>

<p>Mortgage foreclosure —stay until the-decision of an-action to set aside.the/deed, under which the mortgagor acquired title — when a violation .thereof will not be considered on an.appeal from a final judgment of foreclosure — the failure to make the wife of the mortgagor, who joined in the mortgage, a party defendant, is ground of demurrer —presumption as to the continuance of her life and of her dower interest—rule as to presumptions of continued existence and relations and of a state of things once .prored.</p> <p>In an action brought to foreclose a mortgage to which the mortgagor, but not his wife, who joined in the mortgage, was made a party defendant, another party defendant, who claimed that a :deed -of the mortgaged premises had been obtained from him by fraud by the mortgagor, and was void, and who had brought an action to have it so adjudged, obtained an order staying all proceedings on the part of the plaintiff, except the trial of the issue of law raised by a demurrer which such defendant had interposed to the complaint, until the final determination of such other action. The issue of law raised by the demurrer was determined in favor of the plaintiff, and an interlocutory-j udgment was entered overruling the demurrer and providing for final judgment in the event of the defendant’s failure to answer within twenty days. The defendant appealed from the interlocutory judgment, but did not serve an answer within the twenty days allowed for that purpose. At the expiration of the twenty days the plaintiff moved for and obtained final judgment of foreclosure.</p> <p>Held, that, while the Appellate Division was of the opinion that the entry of the final judgment violated the terms of the stay, that question, no order directing the entry of final judgment appearing in the record, could not" be raised by an appeal from such final judgment;</p> <p>That the wife of the mortgagor who had joined in the execution of the mortgage was, if living and if her dower interest, had not. been extinguished, a necessary party in interest to the complete determination of an action to foreclose the mortgage, and that the demurrer alleging a defect of parties in this respect was improperly overruled as to the demurring defendant, who was alleged in the complaint to have or claim to have some interest in or lien upon the mortgaged premises subject and subordinate to the lien of. the mortgage, as such defendant was interested in having every person made a party whose presence was necessary to assure a purchaser’s obtaining a good title;</p> <p>That for the purposes of such a demurrer it would be presumed in the absence of allegations to the contrary, and where no contrary presumption arose from the nature of the subject, that the mortgagor’s wife was still alive and that her inchoate right of dower still existed.</p> <p>"When the existence of a person, a personal relation, or a state of things is once established by proof, the law presumes that the person, relation or state of things continues to exist as before until the contrary is shown or until a different presumption is raised from the nature of the subject in question.</p>

<p>Appeal in each of the above-entitled actions by the plaintiff in such action,, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clei'k of the county of Kings, in the first five actions, on the 20th day of May, 1904, and in the last action on the 2d day of May, 1904, upon the verdict of a jury, and also from an order entered in said cleric’s office on the 27th day of April, 1904, denying the plaintiffs’ motions for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Benjamin E. Valentine, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Nassau on the 5th day of March, 1904, upon the verdict of a jury rendered by direction of the court after a trial at the Nassau Trial Term.

<p>Change of venue—‘Cm action to compel contribution towards the expenses of a real estate venture is not an action “ to recover,” etc., “real property” within section 982 of the Code of Civil Procedure.</p> <p>Upon a motion to change the place of trial of an action from the county of Westchester to the county of Erie, it appeared that the parties to the action had entered into a written agreement for the purchase and sale of lands in the city of Buffalo, Erie county, and for the division of the profits or losses among the parties in certain specified proportions; that the title to the lands purchased pursuant to the agreement was taken in the names of the plaintiff and the defendant Barnhart in trust for their benefit and-that of their associates. The plaintiff alleged that the venture had resulted in .loss of which he had contributed more than his proportionate share; that the defendants had not sustained their proportionate share of the Joss and that Barnhart had mismanaged affairs. He demanded judgment for an accounting and for the sale of the real estate and the disposition of the proceeds according to the respective fights of the parties.</p> <p>The defendant Barnhart interposed an answer asking that it he declared that the best interest of all the parties demanded that the property be held in trust as 'provided by the agreement until a profitable price could he obtained.</p> <p>Held, that the action was not one “to recover, or to procure a judgment, establishing, determining, defining, forfeiting, annulling, or otherwise affecting an estate, right, title, lien, or other interest, in real property, or a chattel real,” within the meaning of section 982 of the Code of Civil Procedure, and that the defendant Barnhart was consequently not entitled, as a matter of right, to have the venue changed to Erie county.</p>

<p>Appeal by the defendant, Frederick E. Triebel, from a final judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 31st day of March, 1904, upon an order bearing date the 30th day of March, 1904, with notice of an intention to bring up for review upon such appeal an interlocutory judgment in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 11th day of February, 1904, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling the defendant’s demurrer to the plaintiff’s complaint, and also the said order upon which the final judgment appealed from was entered.</p>

Appeal by David P. Goldstein 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 4th day of November, 1804, granting the plaintiffs motion to compel the appellants to complete their purchase of premises sold at a partition sale in the above-entitled action.

Appeal by the defendant, Mary A. Darling, from an order of the Supreme Court, made at the Suffolk Special Term and entered in the office of the clerk of the county of Suffolk on the 24th day of October, 1904.

Appeal by the defendant, the New York Edison Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 26th day of February, 1904, upon the verdict of a jury for $19,000, and also from an order entered in said clerk’s office on the 7th day of March, 1904, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Graham Youngs and another, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Queens on the 12th day of June, 1891, upon the report of a referee. The record also contains a notice of appeal by the original plaintiffs, Henrietta Graham Youngs and Fanny Henrietta Youngs, as executrices, etc., of Thomas F. Youngs, deceased, and individually, from certain portions of the aforesaid judgment.

<p> Proof establishing that land under the waters of Jamaica bay had been claimed for one hundred years by the town of Platlands. </p> <p>What evidence establishes that land under the waters of Jamaica bay, which the Commissioners of Fisheries, Game and Forest assumed to lease under section 197 of the Fisheries, Game and Forest Law (Laws of 1892, chap. 488, as amd. by Laws of 1895, chaps. 395, 974, Laws of 1896, chap. 653), had been claimed for upwards of one hundred years by the town of Flatlands under its colonial patents, and that, consequently, by the terms of section 198 of the Fisheries, Game and Forest Law, as amended by chapter 453 of the Laws of 1898, the commissioners had no jurisdiction to execute the lease, considered.</p> <p>Chapter 734 of the Laws of 1868 does not constitute a legislative disaffirmance of the claim of the town of Flatlands to the ownership and control of Flatlands or Jamaica bay under its colonial patents.</p>

<p>Appeal by Charlotte Strong Seixas from a decree of the Surrogate’s Court of the county of Dutchess, entered in said Surrogate’s Court on the 26th day of April, 1904, settling the accounts of the trustees under the will of William H. Hopkins, deceased, and denying the claim of the appellant to share in the distribution of a trust fund created under said will, and also from an order entered in said Surrogate’s Court nuno pro tuno as of the 26th day of April, 1904, denying the appellant’s motion for leave to file objections to the accounts of the said trustees.</p>

<p>Appeal by the defendants, John McGaw Woodbury, as commissioner of street cleaning 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 8th day of February, 1904, confirming a referee’s report upon the trial of the issues arising upon an alternative writ of mandamus and the return thereto, and directing the issuance of a peremptory writ of mandamus for the reinstatement of the relator.</p>

Appeal by the defendant, John Kelly, 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 14th day of June, 1904, upon the decision of the court, rendered after a trial at the Westchester Special Term, directing a foreclosure and sale under a mortgage made by the defendant, the Hobby Bottling Company, as security for the payment of bonds issued by said corporation.

Appeal by the petitioner, Henry C. Rogers, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 1st day of June, 1903, upon an order entered in said clerk’s office on the 28th day of May, 1903, which confirmed the report of a referee, recommending the dismissal of the petitioner’s application, and also from the said order upon which the judgment appealed from was entered.

Appeal by the defendant, the Manhattan Brass Mnt’ J Aid Society, from a judgment of the Municipal Court of the city of New York, borough of Queens, in favor of the plaintiff, entered on the 17th day of June, 1904, upon the decision of the court.

<p>Appeal by the defendant, W. Morton Garden, individually and as executor, etc., of George W. Kidd, deceased, 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 28th day of December, 1904, discharging the defendant, the Equitable Life Assurance Society of the United States, from all liability in this action upon paying into court the sum of $10,162.40, with interest, and directing that upon the entry of final judgment the appellant surrender and deliver up to said assurance society a certain policy of insurance.</p>

Apfeal by the plaintiff, Giebler Manufacturing Company, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendants, entered on the 14th day of June, 1904, upon the decision of the court, and also from an order entered in the office of the clerk of said court denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal "by the plaintiff, Fred H. Shanklin, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Westchester on the 12th day of December, 1902, upon the verdict of a jury rendered by direction -of the court after a trial at the Westchester Trial Term, and also from an order entered in said clerk’s office on the 9th day of December, 1902, denying the plaintiff’s motion for a new trial made npon the minutes.</p>

Motion by the plaintiff, Peter E. Swenson, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term.

Appeal by the plaintiff, Wanda Wuest, 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 30th day of April, 1902, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 12th day of May, 1902, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Clara Risser, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 10th day of February, 1904, upon the decision of the court, rendered after a trial at the Kings County Special Term, sustaining the defendant’s demurrer to the plaintiff’s complaint.</p>

Appeal by the defendant, Thomas J. Powers, Jr., 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 30th day of June, 1904, upon the report of a referee.

Appeal by the plaintiff, Albert Morse, from a judgment of the County Court of Dutchess county in favor of the defendant, entered in the office of the clerk of the county of Dutchess on the 7th day of March, 1904, upon the dismissal of the complaint by direction of the court after a trial at a Trial Term of said County Court.

Appeal by the defendants, Simon Florsheim and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 16th day of May, 1904, upon the verdict of a jury; also from an order entered in said clerk’s office on the 18th day of May, 1904, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendants, Benjamin Barker, Jr., as trustee in bankruptcy of the estate of Israel Lesser, 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 14tli day of October, 1904, upon the decision of the court rendered after a trial at the New York Special Term.

<p>Negligence — injury to an employee from the breaking of a boom extending through the front of a building over the street, to which a tackle was attached—where a cause of action at common law is stated, allegations as to notice required by the ^Employers’ Liability Act will, where they are not proved, be regarded as surplusage.</p> <p>In a common-law action brought to recover damages resulting from the death of the plaintiff's intestate, it appeared that the latter was a foreman in the carpenters’ department of the defendant’s business; that on the day in question the intestate, with the other employees of the defendant, was engaged in removing machinery from the defendant’s old factory to a new factory; that upon the top of the old factory was a boom constructed of white oak, which passed through the front wall of the building and extended over the street; that one of the defendant’s employees (at whose request did not appear) went up to the top of the building and affixed to this boom a tackle; that subsequently the plaintiff’s intestate, with other employees of the defendant, connected this tackle to a heavy piece of machinery and commenced to lower it into the street; that during the lowering process the boom broke and fell, striking the plaintiff’s intestate and killing him.</p> <p>Subsequent examination of the boom disclosed that it broke in consequence of the fact that it had become rotten inside the wall where it was covered. The plaintiff’s witnesses testified that there was no appearance of rot anywhere upon the boom, and that it was apparently in the same condition that it had been in since it had been used by the defendant’s employees. One of the witnesses testified that in his opinion it would have taken at least ten years after deterioration commenced for the boom to rot through. Testimony was also given tending to show that the rotten condition of the boom could have been ascertained by the hammer test or by boring a diagonal hole into the boom and examining the shavings. There was, however, no evidence that the defendant had in any way authorized the boom to be used for the purpose of lowering the machinery or that it had not made the necessary tests to ascertain the condition of the boom, or that it was the owner of the factory building or had installed the boom therein.</p> <p>Held, that there was no evidence which would sustain a finding of negligence on the part of the defendant, and that the complaint was properly dismissed on this ground;</p> <p>That the testimony that it would have taken at least ten years after deterioration commenced for the boom to rot through did not warrant the inference that the defendant had not inspected the boom;</p> <p>That had the complaint in the action stated a cause of action maintainable against the defendant at common law, an averment therein to the effect that the notice required by the Employers’ Liability Act had been served, might, in the event of the plaintiffs failure to sustain such averment at the trial, be regarded as surplusage.</p> <p>O’Brien and Hatch, JJ., dissented.</p>

Appeal by the defendants, John J. Bush and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8th d|ay of July, 1904, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the separate demurrers interposed by the said defendants to the plaintiff’s amended complaint, and also (as stated in the notice of appeal) from an order…

Appeal by the defendants, Metropolitan Street Railway Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 24th day of May, 1904, upon the verdict of a jury for $1,000, and also from two orders respectively entered in said clerk’s office on the 7th and 10th days of June, 1904, denying the defendants’ respective motions for a new trial made upon the minutes.

<p>Contract to pay §4 per year for each §100 of insurance—where policies are canceled, by the companies new .policies must be furnished without charge.</p> <p>Where a corporation makes a contract with an individual hy which the corporation constitutes the individual its agent for the purpose of supplying it with not less than §50,000 fire insurance for a period of ten year's 'and agrees to pay the individual §4 per year for each §100 of insurance procured, if the individual, during the first year of the contract, procures fire insurance to the amount of §50,000 for the corporation and receives from the corporation therefor the sum of §3,000, he is not entitled to collect from the corporation, at the agreed rate, for additional insurance policies which he procured during the year in question to take the place of other policies canceled hy the insurance companies issuing them.</p>

Motion by the defendant, the Federal Match Company, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the verdict of a jury in favor of the plaintiff, rendered by direction of the court after a trial at the New York Trial Term. The issues of fact were brought to trial at a Trial Term held in April, 1904, in New York county.

<p>Appeal by the defendant, J. Harvie Dew, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Hew York on the 21st day of Hovember, 1904, upon the report of a referee.</p> <p>This action was brought to recover upon a promissory note given by the defendant to the plaintiffs’ testator. The note was dated Hovember 23, 1901, whereby the defendant promised to pay to the order of Oliver W. Buckingham, the testator, one year after date, the sum of $5,000, with interest at six per cent. Oliver W. Buckingham died testate on the 31st day of October, 1903, and upon the probate of his will the plaintiffs duly qualified as his executors. The answer averred for separate and affirmative defenses that the testator had canceled the said note by an instrument in writing, and that after the testator’s death this defendant presented a claim against the estate of said deceased for $31,500, which was disputed by the executors; that the matter in'controversy was finally submitted to a referee, pursuant to the provisions of section 2718 of the Code of Civil Procedure, and upon the trial of said action the defendants,-therein offered said note in evidence by way of offset or counterclaim against the claim of this defendant, who was plaintiff therein, and that said action" was pending and undetermined at the time of the joinder of issue.</p> <p>Upon the. trial of this action the plaintiffs proved the making of the note, the non-payment of which was admitted, except as stated-in the answer, and rested. The defendant then offered proof that after testator’s death the note in question was found among his. papers, inclosed in an envelope together with the following paper, all in the handwriting of the testator, except the signature of the witness:</p> <p>“New York, Nov. 25, 1901.</p> <p>“ To my Executors :</p> <p>“ Gentlemen.— The enclosed note 1 wish to be cancelled in case of my death, and if the law does not allow it I wish you to notify my heirs that it is my wish and orders.</p> <p>“ Truly yours,</p> <p>“ Witness: OLIVER W. BUCKINGHAM.</p> <p>“Prank W. Woglom.”</p> <p>The defendant’s wife testified that she was present at a time when the testator and her husband were talking about the note in question, and that her'husband said to the testator that he objected to debt and wished to pay the note, but Mr. Buckingham objected to-receiving it and said that he did not intend to take it and wished it appropriated by Dr. Dew to fix the house and he positively refused to take it. The counsel for the defendant asked the plaintiffs to-concede that the note in question was offered as an offset upon the-trial of the- claim of Dew against the executors, whereupon the-attorney for the plaintiffs said: “I concede that prior to the commencement of this suit on the note for $5,000 Dr. Dew, the defendant, presented a claim against the estate of Mr. Buckingham amounting to $31,500, which, pursuant to the provisions of the Code, had heen referred to Hon. Henry E. Howland, as Referee, and that on the trial of said action before the said Referee, the executors introduced the same note which forms the subject of this action and put the same in evidence, but did not assert the same as a counterclaim.” The defendant’s counsel then said: “ I claim that the note could be used in evidence for no other purpose than as an offset or counterclaim.” This is substantially all that was shown in regard to introducing the note in evidence as an offset in the other action. Both actions were tried before the same referee, who reported for the plaintiffs in the action at bar, and to his findings of fact and conclusions of law the defendant duly excepted. In the case of Dr. Dew’s claim against the estate of Oliver W. Buckingham the referee rendered a brief opinion, entitled in that case only, which closes as follows: “ The note for $5,000, dated November 23, 1901, made to the decedent by the claimant is a valid and outstanding obligation (Dimon v. Keery, 54 App. Div. 318) and the attempted renunciation was ineffectual.” The referee wrote no other opinion in this case.</p>

<p>Appeal by the plaintiff, Leila H. B. Kissam, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Mew York on the 3d day of September, 1903, upon the report of a referee.</p> <p>This action was brought by a client against an attorney to compel him to account to her for money which she had paid to him for the purpose of having him safely invest it in six per cent real estate mortgages in the city of Mew York. The referee, upon the rendition of the defendant’s account, found that there was nothing with which the defendant was chargeable. Upon the trial it was proven that the plaintiff paid over to the defendant various sums of money which he invested for her in different real estate mortgages, all of which the plaintiff claimed had been so carelessly and negligently invested by- him, upon whom she relied and whom she trusted implicitly, that he was chargeable to her with the amount which she had lost upon each one. Upon this appeal, however, the plaintiff questions the finding of the referee in but one of these transactions, which was the loan to Emma L. Bartlett and Homer M. Bartlett, and the subsequent transfer of the mortgaged property to the plaintiff and the subsequent exchange of that property for the premises known as Mo. 304 West One. Hundred and Sixteenth street. The plaintiff and defendant were close personal friends, having been acquainted for many years, the defendant having studied law in the office of plaintiff’s father. In the fall of 1896 he drew the plaintiff’s will, and shortly after that time there commenced a series of conversa^ tions between them as to the advisability of her selling some of the securities which had been left to her by her father at the time of his death, which securities were drawing four or five per cent per annum, and investing the proceeds in loans secured by mortgages on real estate at the rate of six per cent. There is no question but that the defendant strongly advised this, and finally it was done. The plaintiff sold at various times securities to the amount of $30,900, which defendant invested for her in real estate mortgages. In making these investments the plaintiff relied upon the judgment of the defendant. In September the defendant wrote the plaintiff, who was then in New York city, inclosing a few “ applications,” with the remark that “ I have inspected the properties and approve of them as a safe investment for your money, although I shall make an effort to reduce the amount in each case so as to make the margin of equity as large as possible in your favor. As you know, I dislike to loan more than 60$ of the value even at the 6$ rate which you require.” To this the plaintiff replied: “ If you think best I shall be glad to put the amount into these mortgages. * * * I rely entirely upon your judgment in the matter.” One of the applications above referred to was that of Homer N. Bartlett for a loan of $10,500, to be secured by a first mortgage on the premises known as No. 236 West One Hundred and Thirty-second street in the city of New York, which the application stated was worth between $16,000 and $18,000. On September 28, 1897, the defendant notified the plaintiff that he had agreed to make a loan of $11,000, with the explanation: “ I found I could not secure it for $10,500 and I deemed there was no hazard in investing $500 more than I first wrote you that I should in view of the fact that he was likely to get the sum he wanted, $11,000, from some bank or some estate unless I had finally come to his figures.” The loan was accordingly made to the Bartletts on or about the 1st day of October, 1897. The reason for raising the amount of the loan $500 was because the Bartletts had not sufficient means to pay the charges and liens which had accrued against their property, and sought a new loan for that purpose. It appeared upon the trial that at the time this loan-was made there were already mortgages for $10,000 upon the premises, upon which the interest was overdue and unpaid, and the second of these mortgages was then in process of foreclosure, and taxes and water rents for the previous year were still unpaid. The defendant testified that before making the loan he had received the opinions of two men, one William H. Blackwell, a real estate dealer, who had appraised the property at $16,000, and the other a Mr. A. P. Jersey, who owned the adjoining premises, who valued the house at $15,000. It was afterwards proven by the plaintiff that Blackwell had died in November, 1895, nearly two years before the alleged appraisal was said to have been made, and Mr. Jersey denied ever having told the defendant that the property was worth $15,000. The plaintiff called two expert witnesses, one of whom testified that the property was worth $11,500 in 1897, and the other $11,750. The defendant offered no evidence in contradiction of this, and it appeared that during the months of May and June, 1900, when he attempted to sell the property, he was unable to obtain even the sum of $11,000. The Bartletts paid only one year’s interest on this loan and then defaulted. A few days after such default the defendant called upon Mr. Bartlett, who told him of his inability to pay and that his inability would probably continue. Immediately thereafter the defendant filed a lis pendens and commenced the foreclosure of the mortgage in the plaintiff’s name, verifying the complaint himself, the plaintiff at that time being in Europe. This foreclosure was not brought to a sale, for on or about May 13, 1899, the Bartletts deeded the premises to the plaintiff upon a written agreement executed by the defendant that the property should be sold and the proceeds in excess of $11,750 should be repaid to the Bartletts. The plaintiff had given the defendant a full power of attorney, investing him with authority to look after her financial affairs upon her departure for Europe in June, 1899, where she remained until April, 1901. He endeavored to sell the premises, but could not get sufficient to repay the amount of the plaintiff’s loan, principal and interest. On May 17, 1900, the defendant wrote the plaintiff, saying: “ I had an -offer-of exchange of the 132nd street house which I am going to look up to-day or to-morrow to see if it is worth recommending you to accept.” Nothing further was said about such exchange until the 19th day of June, 1900, when the defendant conveyed the premises No. 236 West One Hundred and Thirty-second street to one Eliza Murphy in exchange for the property known as 304 West One Hundred and Sixteenth street, and took a purchase-money mortgage upon the One Hundred and Thirty-second street property of $8,000 at five per cent. News of this transaction he conveyed to the plaintiff in a letter written the same day, in which he described the newly acquired premises as a five-story single apartment house in which there was an equity of from $2,500 to $3,000 above the mortgage thereon. This apartment never paid ■ running expenses, and when the plaintiff returned from Europe about April 20, 1901, the amount she had expended thereon in excess of the rents received was $1,145.35. After .her return from Europe she called at the defendant’s office, and during a long conversation he explained to her about all the various transactions, and defendant testified that she told him she approved of all his transactions and he asked her to give him a written statement to that effect, which she consented to do, whereupon defendant dictated-the following statement to liis stenographer, which he testified Mrs. Kissam signed in his presence, no other person being present:</p> <p>“New York, May 2, 1901.</p> <p>“ Grant Squires :</p> <p>“ I hereby approve and confirm all that you have done for me, Leila H. B. Kissam, or in my name during the last two years, and more particularly*all transactions and proceedings taken to foreclose the Bartlett mortgage procuring me title to 236 West 132nd Street, exchanging the same last June for No. 304 West 116th Street, subject to $16,500 mortgage, and also all acts done by yon and by Stephen G. Thomas and Francis R. Foraker, to secure and protect my investments made through Frederick O. Dexter. And I agree to save yourself and said Thomas and Foraker harmless of any and all claims, cost or damage growing out of any proceedings connected with any of the several aforesaid matters.</p> <p>“LEILA H. KISSAM.”</p> <p>■The plaintiff testified that she never signed such paper, and that she never told the defendant that she approved of his acts, but she stated that on the 1st day of May, 1901, she was at the defendant’s office, and that she knew the date by reason of a check which she gave on the same day; that at that time she had a conversation with the defendant, but that he did not tell her in detail about the property on One Hundred and Sixteenth street, only telling her that it was not paying expenses. Under his advice, she continued to carry the One Hundred and Sixteenth street property until the 19th of December, 1901, when an action having been started to foreclose the mortgage thereon, she conveyed the same, upon the'defendant’s advice, to the mortgagee for the sum of $145.</p> <p>The referee found that the income received ' from No. 304 West One Hundred and Sixteenth street was inadequate to maintain said premises and pay the taxes and interest on the mortgage thereon; that by reason of the exchange of the two properties as aforesaid, the plaintiff suffered damage in the sum of $5,279.49; that the plaintiff did execute the instrument of approval above set forth, and that with full knowledge of the situation from time to time by act, word and writing, other than the said instrument, expressed her satisfaction with and appreciation of the acts and doings of the defendant in regard to the matters and things forming the subject-matter of this action. Upon the facts thus found by him, he decided as matter of law: “ That in regard to the exchange of the premises Ho. 236 West 132nd Street for the premises Ho. 304 West 116th Street, the latter being subject to a mortgage for sixteen thousand five hundred dollars, the defendant did not exercise a reasonable diligence or such care or skill as is ordinarily possessed by persons of common capacity engaged in the same business. * * * That the plaintiff duly ratified the acts and doings of the defendant in regard to the making of the Bartlett loan ” and the subsequent exchange of the said mortgaged premises 236 West One Hundred and Thirty-second street for the premises 304 West One Hundred and Sixteenth street.</p>

<p>Pleading — what amwer does not allege fraud and misrepresentation inducing the execution of a moi'tgage — a MU of particulars is 7iot available in its suppos’t— oral evidence varying 7‘eeitals in a mortgage, held to be incompetent.</p> <p>In an action brought to recover a judgment for a deficiency arising upon a sale under the foreclosure of a purchase-money chattel mortgage, covering property alleged to have been sold by the plaintiff to the defendant, the answer denied the sale of the property by the plaintiff to the defendant, and for an affirmative defense alleged that the chattel mortgage “was procured to be signed and executed by the defendant by means of fraudulent and false representations of the plaintiff, its agents and servants, made to him, tho said defendant, at the time of the execution of said chattel mortgage by the plaintiff, its agents and servants, as aforesaid.”</p> <p>Upon the trial the defendant, over the plaintiff’s objection that its purpose was to vary the agreement contained in the chattel mortgage, and also upon the ground that the answer was insufficient to authorize proof of fraud or misrepresentation in procuring the execution of the chattel mortgage, was permitted to give evidence tending to show that the plaintiff’s agent represented the mortgage to be a conditional sale of the property which was to be defeated in case the defendant did not remain in the possession of the property or' in the event that he purchased beer from any other person than the plaintiff.</p> <p>Held, that the evidence in question was inadmissible for each of the reasons specified in the plaintiff’s objection;</p> <p>That the averments of the answer were insufficient to present the issue of fraud and misrepresentation in procuring the execution of the mortgage, and that the defendant could not have recourse to a bill of particulars served by him for the purpose of enlarging the scope of the defense set up in his answer;</p> <p>That a bill of particulars may not be resorted to for the purpose of enlarging the grounds of recovery; nor can it be made use of to change the cause of action or enlarge the defense set up in the answer;</p> <p>That as the mortgage, the execution of which was admitted by the defendant in his answer, contained a recital that the defendant had sold the property to the plaintiff and that he would forever warrant and defend the title thereto, parol evidence to the effect that there had been no sale of the property was inadmissible as tending to vary or change the terms of the written instrument.</p>

<p>Municipal contract—improper directions of a city representative as to the manner of doing the work — right of election possessed by the contractor to refuse to proceed or to continue the work and recover on a quantum meruit — damages for the city’s improperly rejecting materials, for its delay, for its failure to perform con. ditions precedent and for its interference with the work—representations in the specifications for the work — how far the contractor may rely thereon—pumping water from an excavation — two causes of delay, for only one of which the city is liable.</p> <p>Where a representative of a municipality, authorized to give directions respecting the performance of a contract between the municipality and an individual, gives the contractor, and insists upon his compliance therewith, erroneous directions respecting the execution of the contract, which directions necessitate the performance of more work than the contract properly interpreted requires, the contractor has an election whether to refuse to proceed with the work and to recover upon a quantum meruit for the work already done, or to continue the work under protest and recover the value of the extra work upon a quantum meruit.</p> <p>While the contractor may not ordinarily recover damages for the acts of an inspector of a municipiality, in improperly rejecting materials and thus delaying the work, he may recover damages for unreasonable delay, on the part of the municipality, in permitting him to 'proceed, or for its failure to perform conditions precedent to his duty to proceed, or for unreasonable interference by the municipality with- the contract work or with other contractors over whom the municipality has reserved control.</p> <p>It is only where there is an express representation in a plan or specifications, inserted for the purpose of showing bidders that something exists which will facilitate and render less expensive the performance of the work, that the contractor may recover damages sustained by him in consequence of the fact that the representation is found to be erroneous.</p> <p>As a general rule, a contractor, who submits a gross bid for the entire performance of a given work for a municipality, must assume the risk as to the nature and quantity of the work to be performed, even though approximate estimates of the quantities of such work, prepared by the municipal authorities for the guidance of bidders, prove to be materially incorrect.</p> <p>When a person who enters into a contract with the city of Hew York, to remove for a gross sum the walls of a reservoir, is not entitled to recover extra compensation in consequence of the fact that the plan of the reservoir referred to in the specifications incorrectly represented the angle of the slope of the reservoir walls, and thus necessitated the performance by the contractor of considerable more work than would have been necessary if the plan had correctly indicated the slope of the reservoir walls, considered.</p> <p>How far plans for a public work involving the removal of an entire structure are to be treated as designed to indicate the location of walls to be removed and the levels and extent of excavation and of filling, but not to be used by contractors proposing to bid for the doing of such work as a basis for figuring the quantities of material to be removed, considered.</p> <p>When the contractor is not entitled to recover extra compensation for the expense incurred by him in pumping water from an excavation which he made in the performance of the contract, considered.</p> <p>Where the contractor was delayed in the performance of his work by two causes,, for only one of which the city was responsible, it is incumbent upon the contractor, if he wishes to recover damages from the city for such delay, to make specific proof as to the extent of the delay resulting from the cause for which the city was liable.</p>

Appeal by the plaintiff, James M. Edwards, as surviving partner of the firm of Johnson & Edwards, from a judgment of the Supreme Court in favor of the defendant, The Atlas Improvement Company, entered in the office of the clerk of the county of New York on the 29th day of July, 1904, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendant, Edward E. Conrad, from a judgment of the Court of General Sessions of the Peace in and for the city and county of New York in favor of the plaintiff, entered on the 8th day of April, 1904, convicting the defendant of the crime of attempting to commit the crime of abortion.

<p>Oral contract — when enforced although not, as contemplated, reduced to writing — waiver of the writing—measure of damages for the breach of a contract under which five per cent of claims collected was to be given to an attorney.</p> <p>An agreement to contract is not a final contract, because something is left open; but where all the terms of the contract are settled and what each party thereto is to do is fully understood and agreed upon, the fact that the parties contemplate the execution of a written instrument does not make the execution of such instrument an absolute prerequisite to the existence of a binding contract, if the parties waive the provision for the written instrument.</p> <p>Where a person, after employing an attorney to prosecute a number of claims and agreeing to • pay him as compensation for his services five per cent of the amount of the claims collected by him, refuses to allow the attorney to proceed to collect the claims and employs another attorney, through whose instrumentality the claims are collected, the attorney first employed is entitled, in an action to recover damages for the breach of the contract, to recover the five per cent agreed upon, whether such five per cent be called “ compensation” or “ the value of the contract” or “ profit.”</p>

<p>Appeal by the defendant, Reon Barnes, 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 29th day of August, 1904, denying the defendant’s motion to vacate and set aside a judgment theretofore entered in the action upon the verdict of a jury in favor of the plaintiff, on the ground of mistake, inadvertence, surprise and excusable neglect.</p>

<p> Waiver of a right to a jury trial—when an order denying a motion for a jury trial in a partition suit is a bar to a second motion therefor'—when a consent to the entry of such an os'der continues in force during the entire litigation. </p> <p>The constitutional right to a jury trial may be waived and the waiver, when once made, cannot be retracted but remains good during the life of the litigation. Such rule, however, has no application to cases where, by the express language of the statute governing the action or proceeding, the waiver, though once occurring, is not conclusive upon the rights or remedies of the parties in subsequent stages of the action or proceeding.</p> <p>While an action in partition was upon the Special Term calendar for trial the plaintiffs moved for an order “ directing that the issues herein be tried upon the pleadings by a jury.” The motion resulted in an order providing, “ counsel for both the defendants having appeared in opposition to said motion, and the said plaintiffs by * * * their counsel consenting, * * * it is ordered that the plaintiffs’ said motion be and the same is hereby denied.”</p> <p>The action was tried at Special Term and resulted in a judgment for the plaintiffs which was reversed by the Appellate Division. The plaintiffs then made a motion for a jury trial of the issues in the action.</p> <p>Sold, that the order denying the plaintiffs’ first motion for a jury trial, not having been appealed from, was a bar to their second motion for a jury trial.</p> <p>Semble, that the action of the plaintiffs in consenting to the entry of the first order constituted a waiver of their right to a jury trial, which waiver continued in force during the life of the litigation.</p>

Appeal by the defendant, Albert K. Chapin, individually and as an executor, etc., of Edwin S. Chapin, 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 10th day of November, 1904, upon an order bearing date the 4th day of November, 1904, entered in said clerk’s office overruling the defendant’s exceptions to the report of the referee theretofore appointed herein, and confirming said…

Appeal by the defendants, Edward J. Armstrong and Robert T. Dunlop, 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 -13th day of January, 1904, upon the decision of the court rendered after a trial at the New York Special Term.