Volume 104 — New York Appellate Division Reports

<p>Action for abuse of process — a charge which, after the exclusion of evidence to show , that the plaintiff committed the offense for which she was, arrested, submits that question to the jury is improper — semble, that the evidence was competent.</p> <p>In an action, brought to recover damages resulting from an alleged abuse of process, it appeared that the defendant, who had received some scurrilous anonymous cards and letters through the mail, charged, the plaintiff with writing the same and obtained .a warrant for her arrest; that, as alleged by the plaintiff, the defendant, in abuse of the warrant, caused the plaintiff to be brought to his. house and to there sign a confession of the authorship of the communications while she was under the influence of fear occasioned by the • situation and of threats made by the defendant.</p> <p>The trial court refused to allow the defendant to prove upon the trial that the anonymous cards and letters were written by the plaintiff, but, at the defendant’s request, he charged the following proposition: “That in passing upon the question whether the admission or retraction contained in the letter she wrote and signed were her voluntary acts and as bearing upon the determination of that issue, the jury have a right to consider whether in making that confession she confessed what was true or confessed what was false, and also, in that connection, that in passing upon the question of damages, and as to whether she was humiliated and as to any injury done her by reason of her writing those letters, it is material for them to consider whether when she wrote those letters she was telling the truth, and that such evidence, bearing upon that point as is in the case, is for their consideration in that connection.”</p> <p>Held, that a judgment entered upon a verdict in favor of the plaintiff should be reversed, for the reason that the effect of the charge was to submit to the jury the decision of the question of the plaintiff’s complicity in the making and sending of the anonymous communications as bearing legitimately upon the determination, oí the voluntary or involuntary.nature of her confession aud upon the measure of damages, although the. proof which the defendant had offered upon the subject to show the plaintiff’s authorship' of the communications had been excluded.</p> <p>Semble, per'Hirsohbebg, P. J., that the evidence offered by the defendant wag competent. ■ -</p>

<p>Appeal by the defendant, The Long Island Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered.in the office of the clerk of the county of Kings on the 17th 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 7th day of March, 1904, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Action for abuse of process — obtaining a precept in summary proceedings for the non-payment of rent, in fact paid,—a judgment based on a failure .of proof ■ should not be on the merits.</p> <p>Where a landlord and tenant reside in different places, evidence that the landlord, after receiving a telegraphic order for the amount of the rent then due ' from the tenant, which order proved to have been sent by the tenant, although that fact did not appear on the face of the order itself or from any letter of advice sent therewith,, obtained a precept in summary proceedings against the tenant for non-payment of rent, but discontinued them upon the tenant interposing a plea of payment, will not entitle the tenant to maintain an action for abuse of process against the landlord, as it was legitimate for the landlord to use the precept for the purpose of clearing up a doubt which he might naturally entertain respecting the sender of the moneys which he had received.</p> <p>A judgment entered upon the dismissal of the complaint for failure of proof should not be upon the merits.</p>

Appeal by the plaintiff, Sarah Theresa Mead,' from a judgment of the County- Court of Kings county in favor -of the -defendant,, entered in the office ef the clerk of, the county of Kings on the 2d 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.

<p>Appeal by the defendants, Gabriel Isaacs and others, composing the firm of Isaacs & Levy, from a judgment of the County Court of Kings county 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 $175, and also from an order entered in said clerk’s office on the 2d day of March, 1904, denying the defendants’ motion for a new trial made upon the minutes.</p>

Appeal by the defendant, the,' New York Sanitary Utilization 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 16th day of June, 1904, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 15.th day of June, 1904, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the City of Mount Vernon, 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 11th day of April, 1904, upon the verdict of a jury, 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 uponthe minutes.

. Appeal by the plaintiff, Rudolph Schultz, from an order of the Supreme Court, madé at the Queens County Sp'eeial Term and entered in the office of the clerk of the county of Queens on the 16th day of February, 1905, directing the plaintiff to furnish the defendant with a bill of particulars.

■ Appeal by the defendant,, Edward Norris, from an order of the Supreme OoUrt, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings On the 23d day of November, 1904, vacating a prior order requiring -the plaintiff to give security for costs. ■ ...

<p>Execution against the person of a plaintiff—.it is proper where a verdict is rendered for the defendant in an action for an assault committed by a conductor on the defendant’s railroad. ■ '</p> <p>Where the trial of an action brought to recover damages for an assault, alleged to have been committed upon the plaintiff by a conductor in the employ of the defendant, a street railway company, while the plaintiff was a passenger upon one of its .streetcars, results in a verdict for the defendant and a judgment in favor of such defendant for costs, an execution against the plaintiff’s person may be issued upon such judgment. j</p> <p>In such a case the right of the defendant to a body execution is not dependent upon the question whether the act, which is the basis of the alleged cause of action, was committed by the defendant personally or by one of its agents or employees, but is dependent solely upon the nature of the action.</p>

Appeal by the defendants, Joseph F. Baker and: others, 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 Queens on the 9th day of January, 1905, denying the said defendants’ motion for a resettlement of the 97th proposed amendment to the ease on appeal and refusing to disallow said amendment.

Appeal, by the defendant, Stephen W. Stoothoff, -from a judgment of the Supreme Court in favor of the plaintiffs entered in the office of the clerk of the county of Kings on the 29th day of February, 1904, upon the decision of the court rendered after a trial at the Kings County Special Term. Stephen W. Stoothoff, the defendant, mortgaged certain Brooklyn property to Frank 0. Lang.

Appeal by the defendant, Carrie P. Burr, 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 29th day of March, 1904, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 22d day of April, 1904, denying the defendant’s motion for a new trial made upon the minutes.

<p>Negligence — the existence of a hole seven inches deep in a paved street — it justifies a verdict in famor of one injured by stepping into it — testimony in respect thereto based on observation and not on measurement—photograph taken six months after the injury — amount of verdict.</p> <p>The existence in the paved roadway of a street in the city of New York of a hole seven inches deep is sufficient to authorize a finding of negligence on the part of the city, which will render it liable for personal injuries sustained by a person stepping into the hole during the night time.</p> <p>The fact that witnesses estimated such depth by visual observation, instead of by actually making mechanical, measurements, does not render their'testimony incompetent, hut simply affects the weight to. he given thereto.</p> <p>A photograph of the hole taken six months after the accident ' may properly be admitted in evidence, where it appears that such photograph correctly repre- „ sented.the condition of thehole.on the day of the accident, with the qualification. that it vras then deeper than shown in the photograph. .</p> <p>A verdict for §2,500 held not to be excessive.</p>

<p>Appeal by the defendant, Max H. Jonas, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in- favor of the plaintiff, entered on the 3d day of September, 1904.</p>

<p>. Appeal by the defendant, The New York, Ontario and Western Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 21st day of January, 1904, upon the verdict of a jury for $4,500, and also from an order entered in said clerk’s office on the 16th day of February, 1904, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>. Appeal by the plaintiff, Joseph Schiff, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clel’k of the county of Kings on the 3d day of May, 1904, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the plaintiff’s complaint upon the merits.</p>

Motion by the appellant,'Harrie T. Walter, to amend a remittitur and for leave to reargue the appeal or, <in the alternative, for leave' to appeal to the Court of Appeals. . \

Motion by the appellant, Harry j. Bebro, to dismiss an appeal from an order of the Supreme Court dismissing a writ of habeas ' corpus, and remanding the person brought before the court to an institution for the custody and treatment of the insane.

<p>Contract to pay a manager and agent for the sale of lots a commission for selling them — when it is not sustained by any consideration—additional allowance, disallowed on appeal.</p> <p>Where an owner of building lots employs a person as manager and agent for the sale of the same, agreeing to pay him ten per cent upon the selling price of certain of the lots in respect to the sale of which it is contemplated that the manager and agent shall render services, and a commission of two and a half per cent of the selling price of certain of the lots in respect to the sale of which the services of the manager and agent are not required, the provision for the payment of the two and a half per cent. commission is invalid for want of consideration.</p> <p>In an action brought by the manager and agent to recover commissions under the contract, an additional allowance of costs was disallowed on appeal.</p>

Appeal by the defendants, F. B. Palmer, as president, and others, as trustees, composing the board of trustees - and ' assessors of the village of Spring Valley, 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 Rockland on the 19th day of January, 1904, upon the decision of' the court rendered after a trial at the Rockland Special Term.

<p>Appeal from an order denying a motion for a new trial — the review is limited to exceptions where the case does not state that it contains all the evidence — cross-examination of a witness as to where he was avid with whom he talked prior to the trial — cross-examination of the plaintiff, as to'transactions with a railroad company claimed by the defendant to he equally liable with himself for an injury to the plaintiff, the subject of the action — as to his acquaintance with his attorney — as to the railroad company’s participation in. the trial—as to its refusal to furnish information to the plaintiff.</p> <p>Where the case upon an appeal from an order denying a motion for a new trial made upon the minutes under section 999 of the Code of Civil Procedure does not show that it contains all of the evidence the Appellate Division is limited to a consideration of the exceptions taken at the trial.</p> <p>In an action brought to recover damages for personal injuries sustained by the plaintiff in consequence of being struck by the defendant’s wagon after such wagon had collided with a car of the Metropolitan Street Railway Company, it appeared that all of the plaintiff’s witnesses sworn with respect to the accident were in the employ of the railway company; that one of such witnesses had made a written statement of the accident to the railway company; that such statement had been loaned to the plaintiff’s attorney .and that the railway ' company had refused all information to the defendant; also that the railway company subpoenaed some of the plaintiff’s witnesses and paid the subpoena fees.</p> <p>Held, that it was proper to allow the defendant to ask a witness on cross-examination where he had been while waiting under subpoena for the call of the case; where he had met the other witnesses and whether a particular person had served him with a subpoena;</p> <p>That it was proper for the court to allow the defendant to cross-examine the plaintiff as to whether he was suing the railway company or had made any claim against it or whether it had offered any settlement, as these questions were relevant in view of the rule of law that the plaintiff was entitled to but one satisfaction, and also in view of the relations between the plaintiff and the railway company which had been indicated by the previous testimony;</p> <p>That it was also proper for the court to permit the defendant to inquire as to the existence of any acquaintance between the plaintiff and his attorney previous to the commencement of the action and as to the introduction of the plaintiff to his attorney;</p> <p>That, in view of the fact that all of the plaintiff’s witnesses to the accident were employees of the railway company, evidence as to the railway company’s participation in the litigation was relevant on the question of the credibility of the plaintiff’s witnesses;</p> <p>That no error was committed in permitting a witness for the defendant to state how he knew that an individual in attendance at the trial of the case and apparently interested therein was in the employ of the railway company;</p> <p>That it was proper to allow the defendant to show that the railway company’s employees took the names of- witnesses at the time of the accident;</p> <p>That it was proper to allow the defendant to show that he applied to the railway company for its list of witnesses and that such information had been refused;</p> <p>That the request for information having been made at the claim Office of the railway company, it was not incumbent upon the defendant to prove that “the accident clerk ” of the railway company was one of the persons present in the office.</p> <p>The charge of the court with respect to the connection between the plaintiff and the railway company, considered and sustained.</p>

Appeal by the defendants, Thomas A. Clarke 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 28th day of April, 1904, upon- the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 28th day of April, 1904, denying the defendants’ motion for a new trial made upon the minutes.

<p>Appeal by the plaintiffs, Hamilton H. Salmon and another, from a judgment of the Municipal. Court of the city of New York, borough of Brooklyn,. in favor of the defendant, entered on the 22d day of October, 1904. '■</p>

Appeal by the defendant, William Pi Hannan, 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, 8th day of Juné, 1904, upon the report of a referee.

<p> Claim, against an estate—when it is presented by a firm of attorneys a rejection of it may be delivered to that firm—the fact that the claimant is not notified thereof by the firm does not make the rejection ineffective.'. </p> <p>Where the executor of a decedent’s estate is served with a claim against the ( estate, signed and verified by the claimant, and indorsed with the name and address of a firm of attorneys who are stated in such, indorsement to be the attorneys for the claimant, a notice of the- rejection of the claim addressed to the olaimant and delivered to one of the members of such ¡firm of attorneys, is valid and effective, in the absence of-any notice to the executor that the firm of attorneys was‘not authorized to-receive the rejection of the claim, -notwithstanding that it subsequently appears that the firm of attorneys did not have such authority, and that the claimant was never informed of the rejection of the -claim..</p>

<p>Appeal by the plaintiff, Lud viska H. Larsen, as administratrix, éw., of Rognald John Larsen, deceased, from an order of the Supreme Court, made at the Kings County Trial Term and entered in the office of the clerk of the county of Kings onxtlie 25th day of August, 1903, setting aside the verdict of a jury in favor of the plaintiff for $9,600, and granting a new trial of the action.</p>

<p>.Negligence —injury to property from, debris and water coming from a, bridge above it — where the plaintiffs a/re denied all equitable relief damages a/re not recoverable at the Special Term — effect -of the defendant’s having noticed the case for trial af the Special Term—legislative authority cannot authorize ¿uch a trespass — duty and liability of the city owning the bridge.</p> <p>The owners of a building located twenty feet south of the southerly side of the New York and Brooklyn bridge and eighty feet below the same, alleging that debris and water coming from the roadway of the bridge were deposited upon their premises and constituted á continuing trespass, brought an action against the city Of New York to procure an injunction restraining such,use and maintenance of the bridge as to cause the alleged; trespass, except upon condition that the defendant purchase or condemn the plaintiffs’ premises and pay a specified, sum as past damages. The defendant alleged that the plaintiffs-had a full and adequate remedy at law. The action was tried! at Special Term and the trial court adjudged that the plaintiffs were entitled to recover only money damages. . ' . : “</p> <p>Upon an appeal by the defendant from such judgment, it was</p> <p>jWeld, that the plaintiffs having been denied all equitable relief, the judgment for damages was unauthorized;</p> <p>That the fact that the defendant had noticed the case for trial at the Special Term under its stipulation to that effect did not affect its right to question the power of the Special Term to award, under the circumstances, a judgment for money damages;</p> <p>That the fact that the New York and Brooklyn bridge'was constructed pursuant to authority obtained from the Legislature did not relieve the city from liability for a continuing trespass upon private property committed in the administration of the bridge, as it will be assumed that the Legislature intended the administration of the bridge to be conducted without acts of trespass;</p> <p>That the bridge was not, per se, a nuisance, and that the obligation of the pity in respect to the maintenance of the bridge should be determined with regard to its duties in respect to the highways or streets of the city, modified by the consideration that the bridge was not built on the surface of the earth;</p> <p>That the city had no right to sweep debris off the surface of the bridge so that such debris, assisted by the currents of air, was carried upon the premises of the plaintiffs;</p> <p>That-the city was not, however, responsible for surface water which flowed or fell from the bridge upon the plaintiffs’ premises, in the absence of proof that \ ’"s —it.swept or cast such water upon the plaintiffs’ premises, or that it collected, or suffered to be collected, such surface water into an artificial channel, from which it fell or was discharged upon the plaintiffs’ premises, or that it was practicable to remedy the situation.</p>

<p>Appeal by the plaintiff, William E. Hanna, from an order,of the Supreme Ooiirt, 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 January, 1905, granting the defendant’s: motion for an interpleader.</p>

Appeal by the plaintiff, John von der Born, from an order of the Supreme Court, made at the Queens County Trial,Term and entered in the office of the clerk of the county of Queens on the 13th day of June, 1904, setting aside the verdict of a jury in favor of the plaintiff and granting a new trial of the action.

<p>Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 17th day of March, 1904, upon the Verdict of a jury for. $1,000, ánd also from an order entered in said clerk’s Office on the 25th day of March, 1904, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendants, James Hughes andl 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 10th day of June, 1904, upon the verdict of a jury for $3,700, and-also from an order entered in said clerk’s office on the 21st day of June, 1904, denying the defendants’ motion for a new trial'made, upon the minutes. - ■</p>

<p>Appeal by the defendant, the Interborough. Rapid Transit Company, from a judgment of the Supreme Court in favor of the plaintiff, entered- in the office óf thé clerk of the county of Orange, on the 15th day of April, 1904, upon the vérdict of a jury' for $1,500, and also from an order entered in said clerk’s office on the 11th day of April, 1904, denying the defendant’s motion-for a new trial made upon the minutes.</p>

Appeal by the defendant, the Interurban Street Railway Company, from.a judgment of the Supreme Court: in favor of.the plaintiff, entered-in the office of the.clerk of the county of-Kings on the 28th day of March, 190.4, upon the verdict of a' jury for $4,000, and also from an order entered in said clerk’s office on the 29th day of March, 1904, denying the defendant’s motion for a new trial made upon-the minutes.

<p>Lease by a trustee for five years with an option to the tenant for five years more — section 88 of thetBeal..Property Law was intended to extend, not to restrict, the powers of a trustee—quaere, as to the rights of remaindermen ^.adeguate, considerationfor .such lease—effect of the death ofd member of a firm appointed to make ■an appraisal tó-ascertain the rental. ■</p> <p>Section 86 of the Beal Property Law (Laws, of 1896, chap. 547), which provides, . “A trustee appointed to hold real property during the life of'a beneficiary, and ■ to pay‘or apply the rents-, income and profits thereof to, hr fdr,- thé úse of such . beneficiary, may execute and deliver ajease, -of- such.«real: property for a term not, exceeding five, years, without, application, to,. the; .court,” was- intended, tq- . -extend, rather than restrict, -the powers of a trustee existing at the time of the passage of said section...... ,</p> <p>Á lease executed by such a trustee on February 14, 1900, for a term of five years, with the option, to'thé-lessee to renew such lease for another period of five years, is consequently not void as between the lessee- and the; trustee with respect to the renewal period, because such lease was not executed after .appli- ■ catipn.to the court. .. ' ,</p> <p>Qpcefe, whether thé rénéWal lease would he bindirig upon the remaindermen in ■cásVof the termination Of the trust by the- death of the- life beneficiary -prior to -the expiration of the renewal lease.</p> <p>The. fact that the lease provides that the annual rental for the renewal period shall be §11,000, and - one-half of the excess over .said'sum for which,., the, appraisers therein appointed Shall determine said premises can be rented to a responsible party- for Said 'period, and that said! appraisers-fiávedétérmihed that §15;000 is-the fair rental value, will not justify the court id refusing to compel . .the trustee-to execute the renewal, lease, in the absence -of facts showing, that the consideration supporting, the agreement for .the renewal was. not adequate.</p> <p>The fact that the lease provided that the appraisal for the purpose of determining the amount of the rent to be paid during the term of the renewal léase should he made by a corporation ánd a particular firm and that one. of the members 'of' such firm had -died’-- prior’ tó the appraisal, -dóés-not - deprive' the court of the power to compel, at the suit of the lessee, specific performance of the agreement to execute the renewal lease.</p> <p>In such a case the court may determine the rental value of the premises by means of a referee and decree specific performance of the agreement accordingly.</p>

Appeal by the defendant, Herman Wechsler, 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 ddy of April, 1904, upon the decision of the court rendered after a trial at the Kings County Special Term.

<p>Appeal from a judgment of dismissal of Hie complaint at the close of the plaintiff’s evidence — exceptions or a motion for a new trial are necessary—what is brought, up by such an appeal.</p> <p>Upon an appeal to the Appellate Division from a judgment dismissing the complaint in a negligence action at the close of. the plaintiff’s evidence, the fact that the plaintiff was entitled .to have the case submitted to the jury is not a ground for the reversal of the judgment where it appears that the plaintiff toolf no exception to the dismissal of the complaint and made no motion for a new trial.</p> <p>The appeal from the judgment brings up for review only such questions of law • as are presented by exceptions taken at the trial. '</p>

Appeal by the defendant, Anthony J. Cieslinskie, from an order of the Municipal Court of the city of New York denying the defendant’s motion to amend a judgment theretofore entered in the action.

Appeal by the defendant, Emily P. Griswold, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of' the plaintiff, entered on the 17th day of October, 1901, upon the decision of the court.

<p>Receiver.— commissions of, on property in excess in value of the amount due from the judgment debtor—brokerage for procuring the receiver's bond—extra allowance to the receiver's attorney. " ' ,</p> <p>Where, in ah action brought by the personal representatives of a deceased partner to .compel the surviving partner to render an accounting of the partnership affairs, an order is made appointing a receiver “ of all of the copartnership property of said Walter Adams & Co., of every description or so much, thereof as may be necessary to satisfy’the plaintiff’s judgment herein,” the receiver is entitled to the commissions allowed by sections 3320 of the Code of Civil Procedure upon the total value of the partnership property which he, in good faith, acquired for the purpose of discharging his duties, even though the amount of such property proved to be somewhat in exdess of that required to satisfy the plaintiffs, j udgment.</p> <p>The payment of brokerage for procuring the receiver’s bond is not a lawful charge as an expense of the receivership.</p> <p>There is no authority for inserting in an order, supplementing the judgment rendered in the action, by directing further proceedings by the receiver for its collection, a provision for the payment to the receiver’s attorney of a specified sum as an extra allowance in lieu of costs.</p>

Appeal by the defendant, Susan G. Seabury, from an interlocutory judgment 'of the Supreme Court in favor of the plaintiffs, ’ entered in the office of the clerk of the county of Suffolk on the 8th day of February, 1904, 'upon the decision, of the court,- rendered after a trial at the Kings County Special Term,, sustaining the plaintiffs’ demurrer to the new matter set up in: the answer as a defense.

Appeal by the defendant, Thomas Russell, from a judgment of the Sup.reme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 22d day of March, 1904, upon the verdict of a jury for $1,200, and also from an order entered in said clerk’s office on the 16th day of April, 1904 denying the defendant’s motion for a hew trial made upon the mi-nut'es.

Appeal by the defendant, William F. Rohrig, from a judgment of the Municipal Court, of the city of Hew York, borough of The Bronx, in favor of the plaintiff, entered, on the 21st day of May, 1904, upon the decision of the court.

<p>Appeal by the plaintiff, Henry 0. Russell, 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 27th day of April, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 25th day of April, 1903, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Herman.Thiel, from a, judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 6th day of February, 1904, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term.

<p>Statute of Frauds — what receipt for money paid for standing timber satisfies the requirement that a contract for the sale of real property he in writing.</p> <p>Where one Selah B. Strong sells to Thomas 1ST. Bayles, by an oral contract, locust timber standing on premises known as. Oakwood in Suffolk county, and delivers to Bayles the following receipt:</p> <p>"Setauket, IT, YFei>. 14, 1901. '</p> <p>“ Received from Thomas IT. Bayles two hundred and;twenty-five dollars for locust at Oakwood. '</p> <p>"SELAHB. STRONG,”</p> <p>such receipt is sufficient to satisfy the requirements of Section 234 of the Real .Property Law (Laws of 1896, chap. 547), which provides: " A contract for the leasing for a longer period than one year, or for the sale of any real' property, or-an interest therein, is void,, unless the contract or some note or memorandum • thereof expressing the consideration is in writing, subscribed by -the lessor or grantor or by his lawfully authorized agent.”</p> <p>The section quoted enacts a rule of evidence and is satisfied if-the. contract is manifested or. proved by a writing whether the contract originated by parol agreement or otherwise.</p>

Appeal by the defendant, The Prince Line, .Limited, from a judgment of the Supreme Coúrt in favor of the. plaintiff, entered in the office of the clerk of the county of 'Kings on the 28th day of June, 1904, upon the verdict of a jury for $2,500, ¡and also from an .order entered in said clerk’s office on the 22d day of June, 1904, denying, the defendant’s motion for a new trial. made upon the minutes.

<p>Mandamus —the writ is not ordinarily granted to determine controverted questions' _ of law and fact — it is not demanddble as a matter of right—-effect of not taking - issue on opposing affidavits — the amount of salary of a janitor in a public school, should be determined by action. ' " -</p> <p>It is not the province óf a writ of mandamus to adjust controverted 'questions of law and fact, and while there have been adjudications on this class of questions in mandamus proceedings, it is rarely that an appellate .court-'will interfere with the discretion of the Special Term in refusing to issue:a writ of mandamus to compel such an adjudication.</p> <p>In the case at bar the Appellate Division refused to interfere with the action of . the Special Term in refusing to issue a writ of mandamus requiring the board-Of education of the city-of New York to pay the relator, the janitor of a public school in the borough of Brooklyn, a greater salary than he was receiving, it. appearing that his right to receive such 'greater salary was dependent upon a controverted question of law, and that he had an adequate remedy by. action.</p> <p>The writ of mandamus is -not always demandable as a matter of right, but frequently rests in the discretion of the court; this is peculiarly true where the rights of the moving party are not clear and unquestioned.</p> <p>■ If a party applying for a writ' of mandamus does not take issue upon the allegations of the opposing affidavits, but proceeds to the argument of .the motion,</p> <p>- his action is equivalent to a demurrer. He admits the allegations contained in the opposing affidavits, but denies their sufficiency in law to prevent the issuing of the writ.</p>

Appeal by the defendant, The New York' Central and Hudson River Railroad Company, from a judgment of thd Supreme' Court in favor of the plaintiff,, entered in the office of the clerk of the county of Westchester ón the 25th day of April,; 1904, upon, the ■verdict of a jury for $10,500, 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 plaintiff, John A. Krebs, from an interlocutory judgment of the Supreme Court in favor of the defendant, Claus Heitmann, entered in the office of the clerk of the county of Kings on the 8th day of July, 1904, upon tlife decision of the court, rendered after a trial at the Kings County Special, Term, sustaining the said defendant’s demlirrer to thei plaintiff’s complaint.

Certiorari issued out of the Supreme Court and attested .on the 7th day of March, 1905, directed to the board of supervisors of the county of Nassau, commanding the said board to certify and return to the office of the clerk of the county of Nassau all and singular its proceedings had in disallowing a certain claim presented by the relator.

Appeal by the defendant, James E. Jennings, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the- 23d day of April, 1904, upon the decision of the court rendered after a trial at the Suffolk Trial Term before the court without a jury. -

Appeal by Howard Cozine from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 16tli day of May, 1904, judicially settling the account of James J. Cozine, as administrator, etc., of Cornelius Cozine, deceased, except that part thereof awarding costs to the appellant to pe paid by the said James J. Cozine, individually.

Appeal by the Comptroller of the State of New York from an order of the Surrogate’s Court of Kings county, entered in said Surrogate’s Court on the 3d day of January, 1905, as resettled, denying an unopposed motion made by the appellant to vacate an ex parte order declaring the estate of Edward A. Collins, deceased, to be exempt from the transfer tax.

<p>Appeal by Edgar A. Trotter and others from a decree of the Surrogate’s Court of the county of Kings, entered in -said Surrogate’s Court oil the 25th day of April,' 1904, admitting to probate .. the'last, will and. testament of Charles W. Trotter, deceased, only to the extent indicated in the said decree.</p>

Appeal by the defendant, Eugene B. Dudley, 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 10th day of June, 1904, denying the defendant’s motion to compel the plaintiff to discontinue the action, and also from an order made at the Westchester Special Term and entered in' said clerk’s office on the 14th day of June, 1904, denying the defendant’s motion for a reargument of the…

Appeal by the defendant, James A. Deering, 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 24th day of February, 1905, denying the said defendant’s motion to strike out certain portions of the complaint:

Appeal by the plaintiff, George W. Onderdonk, from so much of an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the. office of the clerk of the county of Rock-land on the 5th day of March, 1904, upon the decision of the court, rendered alter á trial at the Rockland Special Term, as overrules the plaintiff’s demurrer to the second defense to- certain causes of action set forth in the complaint.

Appeal by the defendant, The City of Hew York, from a judg•ment 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 July, 1904, upon the report of a referee. Judgment affirmed, with costs, on the opinion of Hon. William J. Caer, Referee.

Appeal by Panagioti Nicolya and another, from a judgment of the Supreme Court in favor of the petitioner, entered in the office of the clerk of the county of Kings on the 20th day of July, 1904, upon an order entered in said clerk’s office on the 2'7th day of June, 1904, revoking and canceling liquor tax certificate No. 10,239, issued to Panagioti Nicolya and transferred to Spero Gretes; also from such order upon which the said judgment was entered, and also from an order…

Appeal 'by the defendant,. The New York Glucose Company, from a judgment of the -Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 20th day of June, 1904, upon the verdict o,f a. jury for $20,000; also from an order entered in said clerk’s office on the 27th day of June, 1904, denying the defendant’s motion for a new trial, and also from an order entered in said clerk’s office on the 23d day of June, 1904, granting the…

Appeal by the defendant, Franklin Bien, as receiver of the busi- • ness and property of Hazard, Hazard & Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of tlie clerk of the county of Kings on the 23d day of February, 1905.

Appeal by Clifton E. Forbush from an order of thé Supreme Court, made the Kings County Special Term and entered in the office of- the clerk of the comity of Westchester on the 8th- day of August-, 1904, denying his motion to reopen the: proceedings herein and revoking and canceling liquor tax certificate No. 17,382, issued' to the said Clifton E. Forbush.

<p> Contract by a bank giving to an individual the exclusive right to act as its agent in a State in which it could not lawfully do business—resolution of its directors assuming a bond given by its president for a loan to him to make good his shortage to the bank. </p> <p>A contract made by a banking corporation, which could not lawfully do business in Union county, in the State of New Jersey, whereby it conferred on an individual the exclusive right to conduct its .business in that county, is invalid, and the individual, who knew of the invalidity of the contract at the time of making it, cannot recover damages because of a breach of the contract by the corporation.</p> <p>A banking corporation cannot be held liable upon a resolution passed by its board of directors to the effect that the corporation would indemnify the president of the bank against liability upon a personal bond previously executed by him, and from which the bank obtained no benefit except possibly by the liquidation of a shortage in the president’s account.</p>

Appeal by the defendant, the Knickerbocker Trust 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 New York on the 6th day of January, 1904, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant’s demurrer to the plaintiff’s complaint.

Appeal by George N. Syms and others. from an order of .the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of J uly, 1904, reviving and continuing the above-entitled action against George N. Syms, as the representative and successor in interest of the above-named defendant, John G. Syms, deceased.

Appeal by the defendant, the Interborough Rapid Transit Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 11th day of October, 1904, upon the verdict, of a jury for $3,000, and also from an. order entered in said clerk’s office on the llth day of October, 1904, denying the defendant’s motion for a new trial made upon the minutes.

., Appeal by the defendant, the Mexican Sugar Refining Company, Limited, from an interlocutory judgment of the Supreme. Court in -favor of - the plaintiffs, entered in the office of the clerk of th e-county of New York on the -23d day of November, 1904, upon the decision of the court,'rendered after a trial at the New.York Special Term, overruling the said defendant’s demurrer to the plaintiffs’ complaint..

<p>Fraud — receipt of deposits by an insolvent banker — what must be shown to enable the depositor to recover the amount deposited from an assignee for creditors.</p> <p>The mere fact that a banker was insolvent at the time of receiving a particular deposit and that he made a general assignment for the benefit of creditors the following day does not of itself entitle the depositor to recover the amount of the deposit from the assignee for the benefit of creditors.</p> <p>The depositor’s right of action in such a case is founded upon fraud, and an honest but mistaken belief by the Ranker in the solvency of the bank at the time of receiving the deposit is fatal to the cause of action.</p> <p>It must, therefore, be shown that the insolvency was of such a character that it was manifestly. impossible for the banker to continue to meet his obligations, and that this situation was known to the banker, so as to justify the conclusion that the banker accepted the deposit knowing that he would not and could not respond to the depositor’s demand for its return.</p> <p>It must further be shown, where the deposit was made in the form of a check, which was deposited by the banker to his credit in another bank, that the proceeds of the particular check actually came into the hands of the assignee for the benefit of creditors. ></p>

Appeal by the plaintiffs, Robert A. Fairbairn and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Flew York on the 6th day of May, 1904, upon the verdict of a jury, and also from an order entered in said clerk’s office' on the 9th day of May, 1904, denying the plaintiffs’ motion for a new trial made upon the minutes.

Appeal by the plaintiffs, Cornelius MacArdell and others, as administrators, etc., of Cornelius MacArdell, deceased, suing.on' behalf of themselves and other stockholders of the- Houston and Texas.

Appeal by the plaintiff, The Camden Iron Works, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 20th day of June, 1904, upon the decision of the court rendered after a trial at the New York Special Term, except that part of said judgment which dismissed the complaint as to the defendant, The City of New York.

<p> Will—what is not an exercise of a power to “alter and regulate” the proportions iñ which property, given by a will, shall he distributed— “issue,” used not to indicate descendants generally, but children and the issue of deceased children. </p> <p>The 6th clause of the will of George J. Foster provided as follows : “The share so set apart to my niece Mrs. Margaret Beeckman together with the sum of Twenty-five thousand dollars above directed to be set apart for her use I give to my executors in trust to keep the same invested upon good and lawful security and to apply the whole net'income thereof to the use of the said Margaret dur/ ing her life, and upon her death such share shall go and be paid or transferred to her issue, and in default of issue to her next of kin in such proportions as they would be entitled to under the laws of the State of New York upon distribution of personal estate belonging to her upon her dying intestate — with power nevertheless to my said niece by her last-will' executed in due form of law or Instrument of appointment, executed in like manner to alter and regulate at her discretion the proportions in which the same shall be distributed among the persons who shall be entitled thereto under the foregoing provisions of this Article.”</p> <p>The said Mrs. Margaret Beeckman died leaving surviving her four children and no issue of deceased children. Two of the surviving children had no children living at the time of Mrs. Beeckman’s death, but each of the other two children had children then living. Mrs. Beeckman left a will by which she bequeathed her entire estate to her executors in trust for the benefit of her children during their lives with remainder over to her children’s appointees by will.</p> <p>Held, that the will of Mrs. Beeckman did not constitute an exercise of the power to “ alter and regulate at her discretion the proportions in which the same shall be distributed among the persons who shall bé: entitled thereto/’ conferred upon her by the 6th clause of the will of George J. Foster;</p> <p>That an examination of the 6th clause in connection with the other clauses of the will indicated that the word “issue” as used in the 6th clause of the will was not used in its primary sense of descendants generally, but only in the sense .of children and the issue of deceased children;</p> <p>That, consequently, the fund held in trust for Margaret Beeckman was to be divided among her four .children equally and that her grandchildren were not entitled to participate therein.</p> <p>Patterson and Latjghlin, JJ., dissented.</p>

<p>Agreement conditioned on an estate producing more than §1,200,000 — the income should be considered in ascertaining whether §1,200,000 was produced — a contrary contention overruled in another proceeding does not create an estoppel.</p> <p>One Ives, in order to induce one Chauvet to consent to the termination of a litigation over an estate in which they were both interested, the conversion of the estate into money, and its division among the interested parties in accordance with a proposed plan, made an agreement with the said Chauvet, by which she agreed that if the estate should produce more than §1,200,000, she would pay Chauvet a sum equal to ten per cent of the excess.</p> <p>Held, that in determining whether the estate produced more than §1,200,000, the income derived from the estate prior to its distribution should be included;</p> <p>That Chauvet was not precluded from insisting on this construction of the contract by the fact that, in a previous controversy between the parties over another matter, she had Contended for a contrary construction, which contention ■ had been overruled.</p>

Appeal by the defendant, the Union Railway Company of New York City, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 16th day of June, 1904, upon the verdict of á jury for $2,000, and also from an order entered in said clerk’s office on the 20th day of June, 1904, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the contestants, Georgiana Duvernois and others, from a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 8th day of July, 1904, admitting to probate the last will and testament of Ambrose B; Burbank, deceased.

<p>Negligence, — liability of a city, furnishing a derrick and, tubs to a, contractor, to an employee of the contractor who is injured, by a wire rope pulling out of the socket in a tub — effect of proof of the untwisting of the wire rope.</p> <p>In an action brought to recover damages for personal injuries sustained by the plaintiff, it appeared that Murray & Co. were engaged in delivering sand to the city of Ne.w York at one of the city piers' under a contract pursuant to which the city furnished the tubs and derrick, by which the sand was hoisted from the decks of the vessels in which it was shipped, and Murray & Co. supplied the shovellers who filled the buckets; that on the day of the accident the wire derrick rope pulled out of the socket by which it was fastened to the hook supporting the tub, injuring the plaintiff, who was a shoveller in the employ of Murray & Co. The rope was attached to the socket by placing it through the socket, separating the strands thereof and pouring in melted lead. This method of securing the rope had been in use by the city for upwards of nine years and no similar accident had ever occurred before.</p> <p>About two weeks previous to the accident the attention of the city’s engineer had been called to the fact that the rope was untwisted for a short distance above the socket and the engineer had determined that it was unnecessary to relead it. The engineer examined the rope on the ■ morning of the accident and found it to be in proper condition except that it had become untwisted as before mentioned. So far as appeared, such untwisted condition only affected the strength of the rope, and not its liability to pull out of the socket. One of the plaintiff’s experts testified that the method adopted by the city of semiring the rope to the socket was not, in his opinion, a safe method, while the city’s experts testified that it was a safe method.</p> <p>Meld, that a judgment against the city of New York entered upon a verdict in favor of the plaintiff should be reversed;</p> <p>That, as the plaintiff was not in the employ of the city of New York, the latter was not bound to furnish him with proper tools and appliances with which to do his work, but was simply under the. obligation to use the care of an ordinary person to avoid injuring him;</p> <p>That the fact that the plaintiff’s expert considered the method of fastening the rope to the socket unsafe and improper was not sufficient, in view of the testimony of the other experts to the effect that such method was safe and proper, to sustain a finding of negligence on the part of the city;</p> <p>That, it appearing that the untwisted condition of the rope prior to the accident only affected the strength of the rope, and not its liability to pull out of the socket, negligence could not be imputed to the city because of the continued use of the rope with knowledge of such condition.</p> <p>Lauohlin, J., dissented.</p>

Appeal by the defendant, the Third Avenue Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered, in the office of the clerk of the county of New York on the 31st day of October, 1904, upon the verdict of a jury for $1,250, and also from an order entered in said clerk’s office on the 2Yth day of October, 1904, denying the defendant’s motion for a new trial made upon the minutes.

<p>Charter pan'ty—when the term begins — when the vessel must be ready — a notice by the charterer that it woiild not be ready at the time faced to fulfill the contract is a breach thereof—effect of the owner agreeing not to exact hire — it is not a modification of the charter party which will discharge the cha/rierer’s surety — effect of thereafter chartering the vessel to others—effect of a failure to use proper diligence to recharter — it might be a partial defense to a claim for damages for breach the of the cha/rter party. ■ ,</p> <p>The owners of a steamship chartered it for a period of five years from the date of the first loading of the said vessel by a charter party executed October 16, 1902, which provided that the owner should forthwith, upon the execution of ' the contract, convert the steamship into a tank steamer and that the work of conversion should be completed on or before March 12, 1903, “ on or before which date also said steamer shall enter the service of Charterer.”</p> <p>The complaint in an action brought by the owner of the steamship against the ■ surety upon a bond given by the charterer to secure the faithful performance by the latter of the provisions of the charter party, alleged that after the exe- ' cution of the charter party the plaintiff- proceeded to convert the steamship into an oil tank and that, while the work of conversion was in progress, the , charterer requested the plaintiff not to press the conversion and informed the . plaintiff that it would not be ready to enter upon the performance of the contract in the month of March, 1903; that thereupon it was understood between the plaintiff and the charterer that no hire should be charged the charterer by the owner during the period between March 12, 1903, and the time- when the ' steamer should be ready for delivery to the charterer; that while the steamship was being converted the plaintiff notified the charterer that it was ready to enter .upon the execution of the charter party; that during the month of November, 1903, the charterer notified the plaintiff that it would be unable to use the steamship during the month of January, 1904; that thereupon the plaintiff, with the consent of the charterer, chartered the steamship for other purposes; that about the month of March, 1904, -the charterer! notified the plaintiff that it would be unable to use the steamship at all;.that thereupon the plaintiff, with the consent of the charterer,' 'chartered the steamer to another party for the balance' of the period specified in the charter party and that the ' defendant consented to such recharter. .</p> <p>Meld, that it was the intention of the parties to the charter party that the period over which the contract was to extend w,as to commence at the daté of the first . loading of the steamship or. on March 12,1903, if she was not loaded before;</p> <p>That, under the contract; the plaintiff was bound to have the steamship ready to . enter the service of the charterer on or before March, 12, 1903;</p> <p>That when, prior to March 12, 1903, the charterer notified the plaintiff that it would not then be ready to fulfill the contract, there was a breach of the contract by the charterer which would have justified the plaintiff in at once . treating such notification as a breach of the contract;</p> <p>That the fact that the plaintiff, after such notification, agreed that no hire should be exacted of the charterer between March 12, 1903, and .the time when the steamship was ready for delivery, did not, independent of whether or, not such agreement was founded- upon a sufficient consideration, operate as a modification of the contract, for the reason that there was no agreement between the parties that the steamship should not be ready for the charterer on March 12, 1903, or that the commencement of .the term of the charter should be postponed until the steamship was actually in the possession of the charterer; j</p> <p>That, consequently, the complaint was not demurrable on the. ground that it showed a modification of the contract which would discharge the surety from liability under the rule that a surety is discharged- by any alteration of the contract to Which his. guaranty applies whether the alteration is or is not material or injurious to him;</p> <p>That a mere agreement between the parties to a contract that one of them will Mot enforce a breach of the contract is not a modification of the contract which will discharge the surety of the party guilty of the breach;</p> <p>That averments in the defendant’s answer to the effect that after the charterer had been guilty of a total breach of the charter party, the plaintiff rechartered the steamer só as. to reduce as much as possible, the damages.which the defendant was called upon to pay, did not constitute a defense;</p> <p>That averments in the defendant’s answer to the effect that after the execution of the bond, by a binding, agreement-between the charterer and the plaintiff, without the knowledge or consent of the defendant, the charter party was ;altered in important respects; that the time fixed by the charter party within which the said steamship should be converted into an oil tank and within ' which she should enter the service of the charterer, was changed and enlarged, and that, in pursuance of said agreement, the steamship was not converted into an oil tank on or before March 12, 1903, and was not tendered until many months thereafter, constituted a complete defense to the plaintiff’s cause of action;</p> <p>That averments in the defendant’s answer that the plaintiff did not use proper diligence to recharter the steamship did not constitute a complete defense, although they might possibly be sufficient as a partial defense.</p>

Appeal by the defendant, The City of Yew York, from a judgement of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Yew York on the 13th day of October, 1904, upon the .verdict of a jury for $30,000, and also from an order entered in said clerk’s office on the. 28th day of October, 1904, denying the defendant’s motion for a new trial made, upon the minutes.

<p>Appeal by'the defendants, Edward E. Thomas and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of New York on the 22d day of April, 1904, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 25th day of April, 1904, denying the defendants’ motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Frank Ross, from an order of the Supreme Court,, made at the. Hew York Trial Term and entered in the office of the, clerk of the county of Hew York on the 17th day of October, 1904, setting aside the verdict of _a jury theretofore rendered in favor of the plaintiff, and granting a new trial of the action, , >

<p> An agreement, by one named as. executor in a will, not to qualify in consideration of the payment to him of his share of the commissions is against.public policy-review of a judgment dismissing a complaint upon the plaintiff’s opening. </p> <p>Upon an appeal from, a judgment dismissing a complaint upon the opening of plaintiff’s counsel, the facts, alleged in the'complaint and stated in the opening. must.be assumed tp be true, as well as every inference that can fairly be drawn from them.</p> <p>From the complaint in an action and from the opening of the plaintiff’s counsel, it appeared that one Smith, á resident of London, Eng., died in that city leaving a will in which the plaintiff, who was also a resident of London, the two' defendants and two other persons were nominated as exécutorsf that a large portion of the estate consisted of personal property and securities in -the city of New York; that under the laws of England an executor is not entitled to any fees or compensation for his executorial services; that the defendants did not desire to have the will admitted to probate in the State of New York or to have the plaintiff act as executor either in the State of New York or in England; that they accordingly entered into an agreement with the plaintiff whereby the plaintiff agreed to renounce his right to act as executor both in the Unite,d States and in England in consideration, among other things, that he should “ be entitled to share equally with the other Executors appointed by the said will and codicils in all such-commission and remuneration as the acting Executors shall be legally entitled to claim and be paid as such; ” that the will was not probated in the State of New York but was probated in England; that letters testamentary thereon were issued to the defendants, and that they had refused to perform their agreement with the plaintiff as to the commissions and also to present the will for probate in the State of New York, to the end that the commissions of the executors might be established.</p> <p>Hdd, that the complaint was properly dismissed, for the reason that the defendants were not entitled to commissions in England and had not taken the steps entitling them to commissions in the State of New York, and for the further reason that a contract whereby an executor agrees, for a consideration, to renounce his right to exercise the functions of his office, is void as against public policy.</p>

<p>App’eal by the defendants, Elmer E. Hand and another, from, a judgment o.f the Supreme' Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 5th day of November, 1904, upon the decision of the court rendered after a trial at the New York Trial Term, a jury having been waived.</p>

<p>Mechanics Ken —proof that an architects certificate was unreasonably withheld — burden of proof as to the reasonable compensation for defects, where substantial performance only is shown—what is not a substantial performance.</p> <p>In an action brought to foreclose a mechanic’s lien filed for work done under a building contract, which provided that payment for the work should be made only upon the written certificate of the architect, the plaintiffs, in order to maintain the action, if they have not procured the architect’s certificate, must show, as part of their affirmative case, by a preponderance of proof, not only the refusal by the architect of a demand for the certificate, but also that the certificate was unreasonably withheld.</p> <p>Where, although the complaint alleges complete performance of the contract in respect to the furnishing of materials, the plaintiffs seek to recover upon the theory of a substantial performance of the contract in this respect, they must show such substantial performance by a preponderance of proof, and also what would be fair and reasonable compensation for the defects in performance.</p> <p>Defects in performance which require an expenditure of from $3,500 to $7,000 to remedy them cannot be called inadvertent, and the existence of such defects is sufficient to show that the contract was not substantially performed. O’Brien and Laughlin, JJ., dissented.</p>

Appeal by the plaintiff, Charles Pluckham, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 28th day of July, 1904, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 19th day of July, 1904, denying the plaintiff’s motion fór a new trial made upon the minutes.

Appeal by the’ defendants, Mary J. Heaney and -another, as executors, etc., of Arthur J..

Appeal by the defendant, the Dry Dock, East Broadway and Battery Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the 'office of the clerk of the county of Hew York on the 10th day of March, 1904, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 9th day of March, 1904, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Francis J. Markham, from a judgment of the Supreme Court in favor of the defendant, entered in thé office of the clerk of the county of New York on the 3d day of November, 1904, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term, and also' from an order entered in said clerk’s office on the 29 th day of October, 1904, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by the defendants, Albert R. Keen 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 5th-day of December, 1904, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s, office on the. 8th day of December,'1904, denying the defendants’1 motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Frank Cazenove Jones, 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 29 th day of June, 1904, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 29th day of June, 1904, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Gaetano Encariño, 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 11th day of February, 1903, upon the verdict of a jury convicting the defendant of the crime .of murder in the second degree, and also from two orders denying, respectively, the defendant’s motions for a new trial and in arrest of judgment.</p>

Appeal by the plaintiff, Edward Milius, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 15th day of October, 1904, upon the verdict of a jury rendered by direction of the court, and also from an order bearing date the 31st day of October, 1904, and entered in said clerk’s office, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by Frances J. Storms and others from an order of the Supréme Court, made at tire New York Special Term and entered in the office of .the clerk of-the county of New York on the 1st day of December, 1904, appointing commissioners of estimate and appraisal in the above-entitled proceeding.

Appeal by the defendant, the Harbor and Suburban Building and Savings Association, 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 11th day of October, 1904, upon the decision of the court, rendered after a trial at the New York Trial Term, a jury having been waived.

Appeal by the defendants, Edward Popper and others, from an interlocutory judgment of the Supreme Court in favor of the plain- • tiff, entered' in the office of the clerk of the county of New York on the 3d day of January, 1905, upon the decision Of the court, rendered after a trial at the New York Special Term, overruling the defendants’ separate demurrers to the plaintiff’s complaint.-

Appeal by Norman 0. Andrews from an order of the-Surrogate’s Court of the county -of New York, entered in. said Surrogate’s Court on the 3d day of February, 1904, denying the appellant’s motion for leave to appear in this proceeding and file his objections to the executor’s account,, with notice- of an intention .to’ bring up for review upon such appeal an order bearing date the 27th day of.

' Appeal by the plaintiff, Michael Duerr, and by the. defendant the Consolidated Gas Company'of New York, from an order of the.

Application of the Board of Rapid Transit Railroad Commissioners of the City of New York for a confirmation of the report of commissioners appointed to determine as to whether or not the plans of the rapid transit commissioners for building the underground railroad between Thirty-fourth and Forty-second streets in the borough of Manhattan, in the city of New York, should be modified.

<p>Appeal disposed of on the. theory and record of the trial court—penalty for .a refusal to allow an. inspection of the stock book of a foreign corporation—two actions therefor, one against the corporation and the other against its transfer agent-— deposit of the stock book with its agent, how far a defense to the corporation — effect of the stock bo.ok not containing everything required by the statute.</p> <p>Upon appeal, cases will be disposed Of upon the theory and upon the record on which they were tried. ’ .</p> <p>Upon appeals from judgments rendered in favor of a stockholder of a foreign . corporation in two separate actions, one brought by him against -such foreign corporation, and the other brought against its transfer agent, to ’ recover in each case the penalty prescribed by section 53'of the Stock. Corporation Law ' (Laws of 1892, chap. 688, as amd. by Laws of 1897, chap. 384) for the rfefusal of the corporation and of the transfer agent to allow him to inspect the stock book of the corporation, the Appellate Division will not consider the right of the plaintiff to maintain the two separate suits, or the question whether the foreign corporation had done all that was required of it when it deposited the stock book with its agent, wjiere these points were not raised upon the trial.</p> <p>Where it appears that the book on deposit with the transfer agent was kept as a stock book, the fact that it did not contain every particular item which the statute requires to be recorded in the stock book, will not excuse the transfer agent from complying with the stockholder’s request to inspect such book.</p> <p>Van Brunt, P. J.,. dissented.</p>

Appeal by the plaintiff, Patrick M. Carolan, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 13th day of June, 1904, upon the decision of the court, rendered after a trial at the New York Trial Term before the court without a jury, dismissing the coinplaint upon the merits.

Appeal by the defendant, Margaret p. Gallagher, from an order. -of the Suprerne Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 12th day of December, 1904, denying the said defendant’s motion to vacate a judgment theretofore entered in the above-entitled action arid all proceedings thereunder.

Certiorari .issued out of the Supreme Court and attested on the 13th day of February, 1903,'directed to Francis Y. Greene, commissioner and chief of police of the police department of the city of New York, commanding him to certify and return to the office of the clerk of the county of New York all and singular his proceedings had/in dismissing the relator, a police sergeant, from the police department of the city of New York.

Appeal by the defendant, Charles B. Flynn, 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 loth day of February, 1905, denying the defendant’s motion to vacate a judgment theretofore entered in the above-entitled action.

Appeal by the. plaintiff, Cornelius ¿T. Demarest, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of ISTew York on the 6th day of December, 1904, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 12th day of December, 1904, denying the plaintiff’s motion for a new trial made upon the minutes. .

Appeal by the defendants, Frederick A. Reed 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 - 26th day of Hay, 1904, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 26th day of May, 1904, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the plaintiff, Amelia M. Bauchle, individually and as ■executrix, etc., of Thomas II. Bauchle, deceased, from a judgment ■of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 5th day of August, 1904, upon the decision of the court, rendered after a trial at the Hew York Special Term, dismissing the complaint upon the merits. • •

Appeal by the plaintiff, the Industrial and General Trust,, Limited, 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 22d day of March, 1905, denying the-plaintiff’s motion to set aside a list of names drawn for a special jury.

Appeal by the defendants, Henry W. Gordon and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of December, 1904, upon the decision of the court rendered after a trial at the New York Special Term in a partition action. -

<p>Negligence — charge, where a plaintiff has placed, himself in a position of danger, that “ it would not necessarily excuse the subsequent negligence of the defendant ” — refusal to charge where the motorman was conced.ed.ly not at fault.</p> <p>In an action brought to recover damages for personal injuries it appeared that the plaintiff, for the purpose of taking one of the defendant’s cars, stationed himself in the space between two street car tracks, which space was five feet eight inches wide; that while thus standing a third party boarded one of the defendant’s cars and that as the car proceeded he came in contact with the plaintiff, throwing the latter down and injuring- him. The plaintiff’s theory was that the car was stationary when the third party boarded it and that the conductor of the car had given the starting signal before the third party had an opportunity to pass inside. The defendant’s theory was that the third party attempted to board the car while it was moving.</p> <p>Held, that it was improper for the court to charge that “Even if the plaintiff, in ■ placing himself where he did to wait for an approaching car, failed to exercise reasonable care for his own safety, yet. if the defendant's conductor was aware of the plaintiff’s position before he signaled the car to start and could have avoided the accident by the exercise of reasonable prudence and care, then the original negligence of the plaintiff in placing himself where he did would not necessarily excuse the subsequent negligence of the defendant, if any, and would not preclude a recovery by the plaintiff in this action; ”</p> <p>That such charge entirely withdrew from the jury the question of the plaintiff’s contributory negligence which was one of fact for them to consider;</p> <p>That, there being nothing in the evidence which justified a finding that the motorman of the chr was negligent, it was improper for the court to refuse to charge as follows: “The defendant cannot be held liable in this case, because the motorman of the car did not reverse the power after the accident, but relied upon his brakes after the power had been turned off to stop the car.”</p>

<p>Appeal by the plaintiff, Martha Kommer, 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 6th day of April, 1904, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term.</p>

Appeal by Thomas Janney and another from an order of the Supreme Court, made at the New York ' Special Térm and. entered in the office of the clerk of the county of New York on the 2d day of December, 1904, denying the appellants’ motion to confirm the report of a referee appointed to take and state an account and take proof as to claims. '

<p>Appeal by the plaintiff, Robert S. Howard, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 21st day of Hovember, 190,4, upon the verdict of a jury, and also from an order entered in said clerk’s-office on the 16th day of Hovember, 1904, denying the plaintiff’s motion for a new trial made upon the minutes.</p> <p>The action was brought by the payee of ■ a promissory note to recover against the defendant bank the damages resulting from its failure to properly protest the same for non-payment and to give notice thereof to the indorser (alleged in the complaint to have indorsed said note, before its delivery to the payee, for the purpose of giving credit to the maker) in such wise as to charge him with liability.</p>

/Appeal by the defendant, the Mutual Reserve Life Insurance ' Company, in each of the above-entitled actions,from an order of the Appellate 'Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 18th day of November, 1904, affirming a judgment of the City Court of'the city of New York in favor of the plaintiff, entered in the office of the clerk of. said court on the 25th day of February, 1904, and also affirming an order of the said…

Appeal, by the defendant, the Mutual Reserve Life Insurance Company, in each of the above-entitled actions, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 18th day of November, 1904, affirming a judgment of the City Court of the city of New York in favor of the plaintiff, entered in the office of the clerk of said court on the 29th day of March, 1904.

Appeal by the plaintiff, William Tudor, from an interlocutory judgment of the Supreme Court, entered in the office of the clerk, of the county of New York on the 5th day of April, 1905, upon the-decision of the court, rendered after a trial at the New York Special Term, overruling the plaintiff’s demurrer to the second defense contained in .the defendant’s answer.

Appeal by the plaintiff, Stewart W. Eames, from an interlocutory judgment of the Supreme Court in .favor of the defendants William E. Nichols, and another,- composing the firm of William E. Nichols & Company, entered in the office of the clerk of the county of New York on the 17th day .of June, 1904, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining a demurrer interposed by the said defendants to the plaintiff’s complaint.

Appeal by the plaintiff, the Crocker-Wheeler Company, from an. order of the Appellate Term of the Supreme Court, bearing date the 26th day of May, 1904, and entered in the office of the clerk of the county of New York, reversing a judgment of the City Court of the city of New York in favor of the plaintiff; entered on the •14tli day of March, 1904, upon the decision of the court rendered after a trial before the court' without a jury.

Appeal by the defendant, the Supreme Council of the Catholic Mutual Benefit Association, 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 13th day of June, 1904, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 15tli day of June, 1904, denying the defendant’s motion for a new trial, made upon the minutes.

Appeal by the plaintiff, Andrus R. Wilcox, from a judgment of the Supreme Court in favor of the defendant, the First Methodist Episcopal Church and Society, entered in the office of the clerk of the county of Jefferson on the 18th day of July, 1904, upon the decision of the court, rendered after a trial at the Jefferson Special Term, dismissing the complaint upon- the merits.

Appeal by the defendant, the Syracuse Rapid Transit Railway Conjpany, from a judgment of the Supreme Court in - favor of the plaintiff, entered in the office of the cleric of the county of Onondaga on the 20th day of April, 1904, upon the verdict of a jury for $'7,500, and also from an order entered in said clerk’s office on the 20th day of April, 1904, denying the defendant’s motion, for a new trial made upon the minutes. • • '

Appeal by the defendant, The Town of Bridgewater, from a judgment of the Supreme Court in favor of the plaintiff, entered in thé office of the clerk of the county of Herkimer on the 28th day qf November, 1903, upon the report of a referee. The action was brought to recover the contract price, of a road machine alleged to have been sold by the plaintiff to the commissioner of highways of the defendant town.