Volume 105 — New York Appellate Division Reports

<p>Certiorari issued out of the Supreme Court and attested on the 16th day of January, 1905, directed to the County Court of Monroe county, commanding the said County Court to certify and return to the office of the clerk of the county of Monroe all and singular its proceedings had in auditing the accounts of the relator in connection with the sewer system of certain wards of the city of Rochester, in the town of Gates, county of Monroe.</p> <p>The question involved in the proceeding was as to the right of the relator to retain to his own personal use, out of the sum of §1,350 awarded him annually under the provisions of the city ordinance mentioned in the opinion, such portion thereof as was not actually expended by him for clerk hire.</p>

Appeal by the plaintiff, Michael O’Keefe, from a judgment of the Supreme Court in fávor of the defendant, entered in the office of the clerk of the county of Erie on the 20th day of April, 1904, upon the dismissal of the complaint by direction of the court after a trial at the Erie Trial Term, and also from an order entered in said clerk’s office on the 18th day of April, 1904, directing the dismissal of the complaint.

Motion by the plaintiff, Calogero Manzella, as administrator, etc., of Sarah Manzella, deceased, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon a nonsuit granted by the court after a trial at the Monroe Trial Term in November, 1903.

Appeal by the defendant, The William B. Pierce Oompany, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Erie on the 15th day of August, 1904, upon the report of a referee.

Appeal by the plaintiffs, Thomas J. Hayward and another, from a judgment of the Supreme Court in favor of the defendant Orlando F. Thomas, entered in the office of the clerk of the county of Wayne on the 6th day of January, 1905, upon the decision of the court, rendered after a trial at the Wayne Trial Term, a jury having been waived, dismissing the complaint as to the said defendant, Orlando F. Thomas.

<p>Local option questions — a failure to give notice of the submission is a sufficient reason for oi'dering a resubmission — no additional reason need be shown — the resubmission must be at a special meeting, not at the general election — application therefor denied when an m’iginal submission could be made at as early a date under a new petition.</p> <p>A failure, when submitting the local option questions at a town meeting, pursuant to section 16 of the Liquor Tax Law (Laws of 1896, chap. 113, as amd. by Laws of 1901, chap. 640), to comply with the provisions of such section requiring a notice of the fact that such questions would be voted on at the town meeting to be published in a newspaper at least five days before the town meeting, renders the submission illegal and improper, and constitutes sufficient reason for the granting of an order directing a resubmission of the questions to the electors of the town.</p> <p>The provisions of said section 16, which directs, “If, for any reason except the failure to file any petition therefor, the four propositions provided to be submitted herein to the electors of a town shall not have been properly submitted at such biennial town meeting, such propositions shall be submitted at a special town meeting duly called. But a special town meeting shall only be called upon filing with the town clerk ■ the petition aforesaid and an order of the Supreme or County Court or a justice or judge thereof, respectively, which may be granted upon eight days’ notice to the State Commissioner of Excise, sufficient reason being shown therefor,” mean that the reason to be shown the court or judge, as a basis for the order directing the resubmission, shall be the same reason which rendered the original submission invalid.</p> <p>It is not necessary to show, in addition thereto, that there was not a reasonably full vote cast at the original submission and that if there had been the result would have been different.</p> <p>No authority exists for the resubmission'of the local option questions to a regular town meeting to be held at the same time as the general election. The resubmission, if directed, must be at a special town meeting as provided for by section 16 of the Liquor Tax Law.</p> <p>An application for the resubmission of the local option questions to the electors of a town, made eleven months after the original submission, upon the ground that such submission was invalid, is properly denied, where the granting of the application would not result in giving the applicant any speedier relief than could be obtained under the statute, without any order of the court, by filing a petition for another original submission.</p>

Appeal by the plaintiff, Adriance, Platt & Company, 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 8th day of February, 1905, upon the dismissal of the complaint by direction of the court after a trial at the Cayuga Trial Term.

Appeal by the defendant, George Rankert, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Wayne on the 12th day of July, 1904, upon the decision of the court rendered after a trial at the Wayne Special Term overruling the defendant’s demurrer to the plaintiff’s complaint.

Certiorari issued out of the Supreme Court and attested on the 11th day of January, 1904, directed to the board of supervisors of the county of Allegany, 1ST. V., commanding the said board to certify and return to the office of the cleric of the county of Allegany all and singular its proceedings had in relation to the audit of the account of the relator for printing in his newspaper, The Boliva/)' Breeze, the election notice for the county of Allegany for the year 1903.

<p>Appeal by the plaintiff, Henry Kraft, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 10th day of March, 1905, upon the decision of the court, rendered after a trial at the Erie Special Term, sustaining the defendant’s demurrer to the plaintiff’s complaint, and also from an order entered in said clerk’s office on the 10th day of March, 1905, sustaining the said demurrer.</p>

Appeal by the judgment creditor, Fred T. Cahill, from an order-made by a-judge of the County Court of Oswego county, entered in the office of the clerk of the county of Oswego on the lltli day of November, 1904, denying the appellant’s application for the appointment of a receiver.

<p>Appeal by the defendants, Polly Ellis Cole 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 Tates on the 1st day of August, 1904, upon the decision of the court rendered after a trial before the court without a jury at the Tates Trial Term.</p>

Appeal by the plaintiff, Joseph Vollkommer, 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 December, 1904, as resettled by an order entered in said clerk’s office on the 18th day of January, 1905, denying the plaintiff’s motion to remand this cause to the Municipal Court of-the city of New York, borough of Brooklyn.

Appeal by the defendants, John Wren and others, as trustees of school district No. 5 of the town of Ossining, Westchester county, 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 27th day of January, 1904, upon the verdict of a jury for $500, and also from an order bearing date the 19th ■day of January, 1904, and entered in said clerk’s office, denying the defendants’…

Certiorari issued out of the Supreme Court and attested on the 21st day of November, 1903, directed to Robert Grier Monroe, as commissioner of the department of water supply, gas and electricity of the city of New York, and another, commanding them to certify and return to the office of the clerk of the county of Kings all and singular their proceedings had in relation to the removal of the relator from his position as inspector of electrical conductors, in the city of New…

Appeal by the defendant, Walter George Newman, 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 27th day of December, 1904, denying the defendant’s motion for leave to modify a judgment of divorce in favor of plaintiff theretofore entered in the above-entitled action.

<p>Evidence of a husband’s agency to authorize a railroad company to tah'e gravel from Ms wife’sland — effect of her acquiescence therein.</p> <p>The husband of the owner of land adjacent to a railroad wrote to the railroad company a letter stating, “ I own a strip of land between the railroad and the street which is called Marble ave., it is this shape (Rough sketch). My land is about 15 feet higher than the street and railroad. (Rough sketch.) Now I am taking this land away so as to make it level with the railroad and I would wish that the railroad people would take the bank away plum* to these lines or more so as to save the bother of taking it away later &c.”</p> <p>In reply the railroad company sent the following letter:</p> <p>“ Dear Sir.— Replying to yours of March 5th in regard to excavating material at the overhead bridge between Pleasantville and Sherman Park, beg to state that we shall be glad to use as much of this material as we can dispose of.’*</p> <p>Subsequently a representative of the railroad company visited the premises and had the gravel bank pointed out to him by the woman who owned the land. Afterwards the railroad company removed the bank on the land and used the-excavated material in ballasting its railroad. The work extended over a period of three months.</p> <p>In an action brought by the woman owning the land, against the railroad company, to recover the value of the material excavated and used by the railroad company, the plaintiff repudiated the right of her husband to represent her in the transaction with the railroad company and also claimed that, on the occasion when the defendant’s representative visited her, some conversation occurred as to the value of the gravel and sand. The defendant’s representative denied such conversation.</p> <p>Held, that a judgment entered upon a verdict in favor of the defendant should be affirmed;</p> <p>That the letter written by the plaintiff’s husband to the railroad company coupled with the subsequent acquiescence of the plaintiff in all that was done without any suggestion on her part that she intended to charge for the gravel' (except the alleged conversation with the defendant’s representative, which the latter denied) was sufficient to -warrant the jury in finding that there was never any understanding on the part of the defendant that it was to pay for the material excavated, and that the plaintiff’s husband acted as the plaintiff’s agent in making the arrangement with the railroad company.</p>

Appeal by the defendant, the United Telpherage 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 1st day of August, 1904, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 23d day of July, 1904, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Lorin J. Eggleston, chairman, and others, members, composing the board of supervisors of the county of Dutchess, 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 Dutchess on the 3d day of October, 1904,. Upon the decision of the court, rendered after a trial at the Orange Special Term, overruling the defendants’ demurrer to the plaintiff’s complaint.

Appeal by the plaintiff, John A. C. Nichols, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 29th day of December, 1903, upon the verdict of a jury rendered by direction of the court, a verdict having been previously rendered in favor of the plaintiff for $2,500 after a trial at the Westchester Trial Term, and also from an order entered in said clerk’s office on the 27th day of November,…

Appeal by the plaintiff, Clara L. Simonson, from an order of the County Court of Nassau county, entered in the office of the clerk of the county of Nassau on the 11th day of March, 1905, discontinuing the action, and, among other things, directing the plaintiff upon certain terms and conditions to assign to one Joseph Steinert the bond and mortgage for the foreclosure of which the action was brought.

Appeal by the defendant, Harriet L. Marks, 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 17th day of June, 1904, up.on the verdict of a jury rendered by direction of the court after a trial at the Kings County Trial Term.

Appeal by the defendant, The Brooklyn City Railroad 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 9th day of March, 1905, appointing a new referee to hear and determine the issues in the above-entitled action, the evidence having already been taken before another referee.

<p>Amendment of a complaint on the trial, setting up negligence — objection that it is a surprise to the defendant — when a juror should be withdrawn —■ unusual care required in using a passageway over an excavation in a street.</p> <p>Where, in an action brought to recover damages for personal injuries sustained by the plaintiff, in consequence of the fact that while walking along a sidewalk in the city of New York she tripped over an extension of a passageway which had been constructed by the defendant over a tunnel in process of excavation in the street, the only charge of negligence contained in the complaint is that the “ defendant, its servants and agents were negligent in that they totally failed to warn passersby of such obstruction, and more especially in that at night they placed no lights or other warning signals at said place,” it is improper for the court, upon the trial, to allow the plaintiff, over the defendant’s objection and claim of surprise, to amend her complaint by alleging negligence in the method of the construction of the passageway, and to refuse, after granting such amendment, to allow the defendant to withdraw a juror, particularly where it appears that the case has previously been tried upon the issues arising on the original complaint.</p> <p>In such a case the defendant is entitled to have the court charge that, if the plaintiff knew of the existence of the passageway, she was obliged to exercise unusual care in approaching it.</p>

Appeal by the defendant, The Reflex Camera Company, from a judgment of the City Court of Yonkers in favor of the plaintiff, entered in the office of the clerk of said court on the 13th day of April, 1904, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 8th day of April, 1904, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by Joseph Williams from an order made by a justice of the Supreme Court at the city of Brooklyn, Kings county, and entered in the office of the clerk of the county of Kings on the 20th day of February, 1905, said order having been substituted for an order made on the 26th day of January, 1905, directing the sheriff of the county of Hew York to commit the appellant to jail until he should submit to answer certain questions.</p>

Appeal by the plaintiff, Margaret A. Murphy, 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 14th day of June, 1904, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term.

<p>Eminent domain—condemnation by an elevated railway of the'rights of abutting owners—the damages determined as of the time of the award — evidence of past results is competent — the owner is not bound by the description of his land in the petition—presumption of title to the street — vaults are property — damages for their invasion, ' ■</p> <p>The damages awarded in a condemnation proceeding must he determined eo instanti as of the time of the award. . j</p> <p>In such a proceeding evidence of past results is entitled to consideration in determining the effect of a continuation of the situation.</p> <p>An owner in a condemnation proceeding is not bound by the description of his premises contained in the petition.</p> <p>An owner of property abutting upon a street may in such a proceeding rely on the presumption that his title extends to the center of the street.</p> <p>A vault under the sidewalk of a city street, constructed with the permission of the city authorities by the owner of the abutting buildings, is an easement appurtenant to the abutting owner’s premises and is in itself a- species of property.</p> <p>In a proceeding instituted by an elevated railroad company against an owner of property abutting on a street in which the railroad is operated, to condemn all of the rights of such abutting owner which have been injuriously affected by the construction or operation of the railroad, the abutting owner is entitled to recover for the damages sustained by him in consequence of the fact that the pillars of the elevated railroad extend into and partially fill vaults which, with the consent of the city authorities, he has built beneath the sidewalk of the street after the construction of the elevated railroad.</p>

Appeal by the Brooklyn and Hew York Ferry Company 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 17th day of March, 1905, denying the appellants’ motion to vacate an order theretofore granted in the proceeding for their examination for the purpose of enabling the petitioner to frame a complaint in an action against the said corporations.

<p>Appeal by the defendant, Joseph A. Haas, 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 Queens on the 15th day of December, 1903, denying the defendant’s motion to remove the trial of the indictments in the action from the County Court of Queens county to the Supreme Court; also from a judgment of the County Court of' Queens county in favor of plaintiff, entered on the 4th day of March, 1904, convicting the defendant of the crime of burglary in the first degree and sentencing him to State’s prison; also from a second judgment of said County Court, entered on the 9th day of April, 1904, resentencing the defendant; also from an order of said County Court, entered in the office of the clerk of the county of Queens on the 4th day of March, 1904, denying the defendant’s motion for a new trial made upon the minutes and on the ground of newly-discovered evidence, and also-from an order entered in said clerk’s office on the 10th day of May, 1904, denying the defendant’s motion for a new trial and in arrest of judgment.</p>

Appeal by the plaintiff, Hugo F. Huber, 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 Queens on the 28th day of January, 1905, amending the minutes of the trial and the judgment theretofore entered in the action by striking out an extra allowance of $2,000 granted to the plaintiff.

Appeal by the plaintiff, The County of Delaware, from, a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Delaware on the 4th day of March, 1904, upon the decision of the court rendered after a trial •at the Delaware Trial Term, the jury having been discharged, dismissing the plaintiff’s complaint.

<p>Franchise tax — the value of a trade mark may he considered in estimating it— license fee — the act of the Comptroller in fixing it constitutes a judicial decision— how reviewahle.</p> <p>When fixing the franchise tax to be paid by a foreign corporation, the State Comptroller may, in estimating the value of the capital stock of the corporation employed within the State of New York,' include the value of a trade mark owned and used by the corporation.</p> <p>Where the Comptroller of the State of New York fixes the license fee payable by a foreign corporation for the privilege of doing business in the State of New York at a certain amount, which is duly paid, his shccessor in office cannot, in a subsequent year, of his own motion and upon the same facts which were presented to his predecessor, Increase the amount of such license fee, even though the original adjustment of the license fee was made on an incorrect basis.</p> <p>The fixing of the license fee and the granting of a license thereon is in the nature of a judicial decision, and can only be reviewed in the manner prescribed by sections 181 and 195 of the Tax Law (Laws of 1896, chap. 908).</p>

<p>Negligence—assumption of risk—injury to an employee forcing, by direction of a foreman, a stick up through a chute in order to loosen ground cement and to cause it to fall upon a revolving screw — it presents, under the Mmployers’ Liability Act, ■ a question of fact fos’ the jury — when a verdict for the employee will be set aside.</p> <p>In an action brought to recover damages for personal injuries, it appeared that the plaintiff was an experienced workman employed in the defendant’s cement works; that the ground cement passed by gravity from a bin through a chute into a conveyor, which conveyor contained a revolving screw or worm by which the cement was carried along; that at times the cement would stick in the chute and that on such occasions the flow thereof was started by running a pole from below through the chute; that, on the day in question, the cement ceased to-flow and that the plaintiff and his foreman attempted to start it; that the conditions were such that it was necessary to use a stick about three feet long and also for the person using the stick to extend his arm into • the chute in sucha position that if the cement fell upon his arm it would drive it down upon the revolving worm; that the foreman handed such a stick to the plaintiff and told him to use it; that while the plaintiff was Using it the cement fell, driving his hand and arm down upon the worm, injuring it.</p> <p>Upon an appeal from an order setting aside a verdict in favor of the plaintiff, it was</p> <p>JHeld, that in the absence of some provision in the Employers’ Liability Act changing the common-law rule, the plaintiff could not recover, both because the risk was one assumed by him and also because his own negligence, in taking the risk, contributed to the injury;</p> <p>That the risk involved in the situation, while plain and obvious, was not a risk which necessarily existed, and that, therefore, under the provisions of section 3 of the Employers’ Liability Act, it could not be said, as matter of law, that the plaintiff assumed such risk or that he was guilty of contributory negligence;</p> <p>That, therefore, the case was properly submitted to the jury, but as the verdict-of the jury in favor of the plaintiff was against the plain weight of the evidence it was properly set aside.</p>

<p>Undue influence in the making of a will — when the relation of physician and patient between the sole beneficiary and the testator does not establish it.</p> <p>The fact that the sole beneficiary under a will is the physician of the deceased, who was survived by two uncles, an aunt and two cousins, and whose estate amounted to about §7,500, is by no means conclusive that the will was the result of undue influence exercised by the physician.</p>

<p>Revocation of letters of administration granted to the county treasurer — one to whom, a claim against the decedent was assigned by a corporation after the issue of the letters cannot apply therefor under section 2685 of the Code of Oivil Procedure — what defect in the petition for letters by the county treasurer is not ground for their revocation.</p> <p>One Giotto, an Italian, who had no relatives in the United States, but had a mother residing in Italy, while employed by a corporation in the county of St. Lawrence in the State of New York, was killed in consequence of the alleged negligence of such corporation. The deceased, who died intestate, was buried by the corporation at an expense of twenty-five dollars or thirty dollars. Thereafter the treasurer of the county, for the avowed purpose of bringing an action against the corporation to recover damages for the decedent’s death, obtained letters of administration upon the estate pursuant to a_, petition in which he alleged that the deceased left no relatives within the State of New York and that there were no creditors or other persons who had a prior right to such letters.</p> <p>After the commencement of the action to recover damages for the decedent’s death, a foreman in the employ of the corporation, claiming to be a creditor of the estate by virtue of an assignment from such corporation of its claim for the funeral expenses of the deceased, which assignment was executed subsequent to the issuing of the letters of administration to the county treasurer, filed a petition under section 2685 of the Code of Civil Procedure for the revocation of the letters of administration.</p> <p>Held, that the application was properly denied;</p> <p>That the appointment of the county treasurer as administrator was valid, there being at the time he was appointed no next of kin within the State and no creditor except a corporation which was not entitled to take out letters;</p> <p>That, conceding that the foreman of the corporation was entitled to apply for the revocation of the letters under seption 2685 of the Code of Civil Procedure, the falsity of the statement in the petition for such letters, that there were no creditors of the estate, did not, in view of the fact that the sole creditor was incompetent to take letters, constitute sufficient ground for such revocation;</p> <p>That the objection that the petition upon which the letters of administration were granted stated all the material facts on information and belief and was, therefore, insufficient to confer jurisdiction on the surrogate to issue the letters, was not available in the proceeding;</p> <p>That even though the material facts did not sufficiently appear from the petition upon which the letters were issued, inasmuch as they had been made to appear upon the application for the revocation of the letters, the surrogate was justified in refusing to revoke them.</p>

Motion by the plaintiff, The People of the State of New York, to dismiss the defendant’s appeal from an order of the Supreme Court, made at Special Term and entered in the office of the clerk of the county of Albany on the 8tli day of May, 1905, denying the defendant’s motion for the appointment of a referee to take the deposition of one Gertie Bennett to be used upon a motion to set aside an indictment against the said defendant.

Appeal by the defendant, Charles Seeley, from a judgment of the County Court of Schuyler county in favor of the plaintiff, entered on the 21st day of April, 1904, upon the verdict of a jury convicting the defendant of violating the Liquor Tax Law; also from an order bearing date the 22d day of December, 1903, and entered in the office of the clerk of the county of Schuyler overruling the defendant’s demurrer to the indictment, and also from two orders made on the 21st day of…

Appeal by the plaintiff, Andrew Barber, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Washington on the 26th day of October, 1904, upon a nonsuit granted by the court after a trial at the Washington Trial Term. The action purports to have been brought under sections 1667 and 1668 of the Code of Civil Procedure.

Appeal by the defendant, John Rock, as executor, etc., of Delia Rock, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Clinton on the 14th day of September, 1903, upon the report of a referee. Delia Rock died in the fall of 1901. Prior to that time, from 1895 until the spring of 1901, William Rock, her son, with his wife, Ella Rock, this claimant, lived upon the decedent’s farm.

<p>Heal property left in, trust to pay over the income, and, on notice from the cestui que trust that he desires it to engage in business, the principal, is subject to the claims of his creditors—a judgment creditor, under whoso judgment a receiver has been appointed, may maintain an action to charge the real property — the receiver may also.</p> <p>Where a testatrix, by her will, bequeathes real and personal estate to one Albert L. Cameron in trust to collect the income thereof and pay it to Charles B. Cameron for life, and then provides that in case the said “ Charles E. Cameron shall desire to engage in any business or enterprise, and shall give notice thus to the said Albert L. Cameron that he desires the whole or any part of such principal sum for such purpose it is my will, and in that case I hereby direct the said Albert L. Cameron to pay over and deliver to the said Charles B. Cameron the amount so desired by him out of the principal sum so given to him in trust by the first clause hereof,” the quoted provision renders the trust invalid as to creditors of the cestui que trust.</p> <p>A judgment creditor of the cestui que trust may maintain an action to charge the trust property with the payment of his judgment, without alleging that a receiver of the property of the judgment debtor, appointed in proceedings supplementary to execution instiuuted upon the judgment, had refused to bring such action.</p> <p>Semble, that the action might also be maintained by the receiver in supplementary proceedings.</p> <p>Houghton, J., dissented.</p>

Appeal by the defendant, Supreme Council, American Legion of Honor, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 6tli day of January, 1904, upon the decision of the court rendered after a trial at the Broome Trial Term, the case having been taken from the jury at the close of the trial.

Appeal by the plaintiff, John Donovan, from a judgment of the County Court of Tompkins county in favor of the defendant Salem Twist, entered in the office of the clerk of the county of Tompkins on the 20th day of January, 1904, upon the decision of the court, rendered after a trial at the Tompkins County Court, dismissing the complaint as to the said defendant Salem Twist.

<p>Certiorari issued out of the Supreme Court and attested on the 9th day of July, 1904, directed to Otto Kelsey, as Comptroller of the State of New York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings had in assessing a franchise tax against the relator for the year ending October 31, 1903, and in fixing the amount of its license fee.</p> <p>The relator is a foreign corporation. It was organized August 25, 1902, pursuant to the laws of the State of South Dakota for the purpose of buying, selling and leasing real estate, raising agricultural products, ginseng, and other medicinal roots and herbs and marketing the same and for other purposes. The capital stock of the relator is $2,000,000, divided into 2,000,000 shares of one dollar each, all of which has been issued, although about one-half thereof has been returned to the treasury of the company. The relator maintains a legal office in South Dakota but it has no property of any kind or description in that State. It has an office in the city of Buffalo in this State and it employs capital in this State to the extent of $240,000. The capital so employed in this State is all the capital owned by the relator and no business is done by the relator other than with said capital of $240,000' in the State of New York. Prior to April "1, 1904, the Comptroller fixed the relator’s license fee at $2,500 and stated the franchise tax against the relator for the year ending October 31, 1903, at $750. On the 1st day of April, 1904, relator made an application to the Comptroller to revise and readjust said account for franchise tax and for license fee, which application was granted and testimony was thereafter taken by and before said Comptroller, and he then determined that the franchise tax should be reduced from $750 to $150 but that the license fee should be affirmed at $2,500. This certiorari is .brought to review such determination. The relator did business in the State of New York only a portion of the year ending October 31, 1903.</p>

Appeals by the plaintiff, Charles E. Clark, and by the defendants, Lincoln A. Groat and others, from certain portions of a judgment of the Supreme Court in part in favor of the defendant Ira Strong, entered in the office of the clerk of the county of Delaware on the 4th day of November, 1904, upon the decision of the court, rendered after .a trial at the Delaware Special Term, in the above-entitled foreclosure action.

<p>Appeal by the plaintiff, The People of the State of New York, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Schenectady on the 13th day of January, 1904, upon the decision of the court, rendered after a trial at the Schenectady Trial Term, a jury having-been waived, dismissing the complaint upon the merits.</p>

<p>Appeal by the plaintiff, Esther Walsh, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany on the 14th day of April, 1903, upon the dismissal of the complaint by direction of the court after a trial at the Albany Trial Term.</p>

<p>Appeal "by the plaintiff, The First National Bank of Towanda, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Chemung on the 8th day of August, 1904, upon the decision of the court rendered after a trial at the Chemung Special Term.</p>

<p>Election to determine as to the change of a county seat — what addition to the ballot does not render it void — objection to the form of the ballot should be taken before the election — voting machines having the words “yes” and “no” instead of the words “for " or “ against ”— the votes on such question need not be entered on the tally sheets — separately sealing the original statements of canvass—failure to file election returns within twenty-four hours — unintentional insertion of matter therein, inconsistent with the correct return — what reviewdble by a mandamus under the Election Law.</p> <p>The stubs of the ballots, furnished by the county clerk of Essex county for use at an election to determine whether the site of certain county buildings should be removed from one village in the county to another, contained the following matter prescribed by section 82 of the Election Law (Laws of 1896, chap. 909, as amd. by Laws of 1901, chap. 598), viz., “at the top of each such ballots,* immediately above the perforated line, shall be printed in brevier capital type the following words only: ‘ Notice to electors: For an affirmative vote upon any question submitted upon this ballot, make a cross X mark in the square after the word ‘ Yes.’ For a negative vote, make a similar mark in the square following the word ‘No.’’”</p> <p>They also contained the following words, which section 81 of the Election Law requires to be printed upon the stubs of general ballots, viz.: “ Any other mark than the cross X mark used for the purpose of voting, or any erasure made on this ballot makes it void, and no vote can be counted hereon. If you tear or deface or wrongly mark this ballot, return it and obtain another. Use only a pencil having a black lead.”</p> <p>Section 83, in addition to the matter above mentioned, also provides “ such ballots shall comply with the requirements of official ballots for candidates for public office in so far as such requirements are applicable thereto.”</p> <p>Meld, that, even if the additional words were improperly placed thereon, their presence on the ballots did not render them void.</p> <p>Semble, that the additional words were lawfully placed on the ballots.</p> <p>Section 106 of the Election Law, which providesj" none but ballots provided in accordance with the provisions of the Election Law shall be counted,” was intended to prevent the use of any other than official ballots (except as otherwise provided in sections 89 and 107 thereof) and not to condemn as invalid official ballots because of oversight or error on the part of the official furnishing them.</p> <p>In view of the provisions of the Election Law, designed to insure the correctness _ of the official ballots furnished for use at an election, it is too late after the election has been held to make complaints as to the form of the ballots used thereat.</p> <p>The fact that voting machines used at the election held to determine the above question had upon them the words “Yes” and “ No” instead of the words “ For” and “ Against,” prescribed by section 183 of the Election Law (added by Laws of 1899, chap. 466), does not render invalid the votes registered by such voting machines, where there is no pretense that any elector was thereby deceived.</p> <p>The submission of the question is not rendered void by the fact that no tally sheet as to the question submitted was filed from any of the election districts, and that the tally sheets filed as to the general ticket contained no statement that any votes were cast upon such question, such omission being due to the fact that the official tally sheets, which were in the form prescribed by section 84 of the Election Law, had no blanks upon which to tally the votes cast upon ■ the question submitted, but only blanks upon which to tally the votes cast for candidates.</p> <p>The fact that the original statements of canvass from a number of election districts were not securely and separately sealed with sealing wax, as required by section 113 of the Election Law, does not invalidate the submission of the question, where it appears that the omission to comply strictly with the requirements of the statute was unintentional, and was due either to an oversight on the part of the inspectors of the election or to the fact that they did not fully comprehend the statutory requirements, and that the irregularities did not result in the perpetration of any fraud.</p> <p>The fact that the election returns from a number of election districts were not filed with the county clerk within twenty-four hours after the completion of the canvass, as required by section 113 of the Election Law, does not invalidate the election, where it appears that such failure was due in one instance to the fact that the inspector who carried the returns was unable to reach the county clerk’s office within the prescribed time, and in the other instances to the fact that the election returns as originally attempted to be filed were ' found to be defective.</p> <p>The fact that the board of inspectors in one election district stated on one page of the return that “ the whole number of ‘ Question Submitted’ ballots actually voted * * * were none,’’ while upon another page of the return they correctly certified the number of votes cast upon the question, does not render it necessary to exclude such votes from the canvass, where it appears by the affidavits of all four inspectors that the word “none” was inserted by the inspectors under a misapprehension.</p> <p>Upon an application, under section 133 of the Election Law, for a writ of mandamus to require the board of canvassers of the county to reconvene and correct alleged errors in its canvass of the votes cast upon the question, the court . has no power to decide whether the question as printed on the ballot was in the form prescribed by law. ‘</p>

Appeal by the defendant, Mason M. Smith, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Tioga on the 10th day of October, 1904, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 29th day of September, 1904, denying the defendant’s motion for a new trial made upon the minutes.

<p>Town auditors—neglect to file with the town, clerk the certificate required by section 162 of the Town Law, where a claim is wholly rejected—what is not a compliance with that section—the duty will be enforced by mandamus.</p> <p>1 The following abstract signed by a board of town auditors,</p> <p>“We, the undersigned, Town Board of Auditors of the town of Lake Pleasant, puz-suant to the Town Law, - do hereby certify that the following is a correct abstract of the names of all persons who have presented to said board accounts to be audited, the amounts claimed by each of said persons and the amounts audited by them respectively:</p> <p> </p> <p>which statement is in the form of the abstract requiz-ed by section 170 of the Town Law (Laws of 1890, chap.' 569) to be delivered annually to the clerk of the board of supervisors of the county, does not, although it is filed in the office of the town clerk, constitute a compliance with section 162 of the Town Law, as amended by chapter 481 of the Laws of 1897, which provides: “ If any account is wholly rejected the board shall make a certificate to that effect, signed by at least a majority of them and file the same in the office of the town clerk.”</p> <p>The fact that under the words “ Amt. Allowed,” in the abstract, there is inserted on the line describing the claim the word “Disallowed,” does not add anything to the force of the certificate, which is that the abstract contains the “ amounts audited ” by the town auditors.</p> <p>If town auditors neglect, after totally rejecting a claim, to file the certificate required by section 162, the claimant is entitled to a peremptory writ of mandamus requiring them to perform that duty.</p>

<p>Appeal by the defendant, The Village of Fort Plain, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Fulton on the 16th day of August, 1904, upon the report of a referee.</p> <p>The action was brought to recover damages for diverting the waters of North creek, a stream flowing through a farm of about ninety-six acres owned and occupied by the plaintiff, and to enjoin the defendant from continuing such diversion.</p> <p>The defendant in 1902 constructed a dam twenty-two feet high, with an apron twenty-two feet wide across said creek about a mile and a quarter above the plaintiff’s farm, from which dam the water is conducted a distance of eight or nine miles, a portion of the way in pipes ten inches in diameter, and a portion of the way in pipes eight inches in diameter, to a distributing reservoir near the defendant village, from which it is conducted in ten-inch pipes for use therein. The village of Fort Plain, the defendant, contains a population of about 2,500, and the amount Of water required- to supply them is from 150,000 to 200,000 gallons daily. The defendant is able to take from said dam above plaintiff’s farm in its said pipes 1,069,000 gallons of water every twenty-four hours, but since the erection of said dam and pipe lines the defendant has not at any time drawn water amounting to more than one-fourth the capacity of said ten-inch pipe. The amount taken and diverted by the defendant, however, has materially lessened the flow of said creek where it runs over and through the plaintiff’s farm. There is a fall of sufficient head in such creek on plaintiff’s farm with which the amount of water capable of being carried through the defendant’s pipes from said dam above the lands of the plaintiff would produce ten horse power of energy. The plaintiff, howevei*, has never used the waters of the creek for power, but there was proof that about fifty years ago there was a saw mill and a fulling and carding mill there operated by water power from said creek.</p> <p>The defendant intends in the future to continue to divert the water from such creek through its said pipes for fire, domestic and other village purposes.</p> <p>The action was referred to a referee to hear and determine.</p> <p>On the trial it was stipulated that, if the referee finds that the plaintiff is entitled to an injunction, that he then act as commissioner and condemn the water rights of the plaintiff and fix the future damages, upon payment of which no injunction shall issue.</p> <p>The referee, in company with the attorneys for the respective parties and with their consent, viewed the plaintiff’s premises and the dam or reservoir above his premises.</p> <p>The referee found that the plaintiff’s damages for the diversion of the waters of said creek up to the time of the commencement of the trial was the sum of six cents and that his fee or future damages for the right of the defendant to take and divert in perpetuity not to exceed 1,069,000 gallons of water per day from said creek was the sum of $450, with interest from the date of commencing the trial. He also decided that on the payment to the plaintiff by the defendant of such damages within the time specified in the report the latter should have such rights in perpetuity, and in case of failure to make such payment the plaintiff should have a perpetual injunction restraining such diversion. From the judgment entered upon this report the defendant appealed.</p>

<p>Appeal by the defendant, Charles W. Crispell, as executor, etc., of Charles W. Cornell, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 4th day of March, 1903, upon the report of a referee.</p> <p>Charles W. Cornell died on the 9th day of May, 1898, and the defendant is the executor of his will. The plaintiff tiled a claim against the deceased for services rendered to him in waiting upon him and assisting him to dress on 757 days at seventy-five cents a day. The claim was rejected by the defendant, and the same was duly referred under section 2718 of the Code of Civil Procedure to a referee to hear and determine. The referee has found that the plaintiff, at the request of the deceased, from the 20th day of February, 1895, to the 1st day of September, 1897, performed services for said deceased on 757 days in lacing his shoes, putting on his stockings, cuffs, necktie and collar, and in brushing his clothes and in otherwise assisting him to dress and in attending him; that such services so performed were reasonably worth the sum of twenty-fiye cents a day, and that no part thereof has been paid. He reported in favor of judgment for the plaintiff for $189.25 damages, besides costs. From the judgment entered thereupon this appeal is taken. The judgment for costs was afterwards modified by stipulation by deducting therefrom the costs as taxed.</p>

<p>Appeal by Robert D. Chittenden, as administrator, etc., of Jane Davis, deceased, and another, from a decree of the Surrogate’s Court of Saratoga county, entered in said Surrogate’s Court on the 9th day of December, 1904, admitting to probate a certain paper propounded as the last will and testament of Jane Davis, deceased, bearing date the 19th day of March, 1885.</p>

Appeal by the plaintiff, Edward H. Litchfield, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Franklin on the 13th day of October, 1904, upon the report of a referee dismissing the complaint upon the merits.

Appeal by the defendant, Amzi L. Barber, from an order of the Supreme Court, made at the-New York Special Term, bearing date the 6th day of March, 1905, and entered in the office of the clerk of the county of Saratoga, denying the defendant’s motion to set aside an order theretofore granted in the action for the examination ■of one Cornelia G-. Rowe.

Appeal by .the defendants, Edward S. Parkhurst 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 Fulton on the 14th day of January, 1905, upon the decision of the court, rendered after a trial at the Montgomery Special Term, overruling the defendants’ demurrer to the plaintiff’s complaint.

Appeal by John S. McEwan from an order made by a justice of the Supreme Court and.entered in the office of the clerk of the county of Albany on the 4th day of November, 1904, denying the appellant’s motion to review the determination of the Secretary of State in overruling his objections to the original certificates of nomination by the Social Democratic Party, filed in the office of the Secretary of State on the 5th day of October, 1904.

Appeal by the plaintiff, William S. Lawrence, from a judgment of the County Court of Franklin county in favor of the defendant, entered in the office of the clerk of the county of Franklin on the 17th day of October, 1904, reversing, on the ground that it was insufficient in amount, a judgment of a justice of the peace of the town of Moira, Franklin county, in favor of the defendant, entered on the 8th day of January, 1904, and granting a new trial.

Appeal by Erie Sherman and others, from so much of a decree of the Surrogate’s Court of the county óf Chemung, entered in said Surrogate’s Court on the 27th day of July, 1904, settling the accounts of Levi Bradbury, as executor, etc., of Jerusha M. Sherman, deceased, as directs the allowance and payment to Wesley 0.

Appeal by the defendants, Paul Ford Nason and others, from so much of a judgment of the Supreme Court in favor of the plaintifí, entered in the office of the clerk of the county of Rensselaer on the 21st day of June, 1904, upon the verdict of a jury, rendered by direction of the court after a trial at the Rensselaer Trial Term, as adjudges that certain instruments in writing are, together, the last will and testament of Henry T. Nason, deceased, and are valid instruments,…

Appeal by the defendant, the Cayuga Lake Cement Company, from an order of the County Court of Tompkins county, entered in the office of the clerk of the county of Tompkins on the 15th day of March, 1904, striking out a counterclaim from the defendant’s answer and transferring the cause from the trial calendar to the law calendar of the Tompkins County Court. This action was commenced in Justice’s Court.

Three writs of certiorari issued out of the Supreme Court and attested in the first proceeding on the 7th day of April, 1904, and in the other two proceedings on the 13th day of April, 1904, directed to the Board of Railroad Commissioners of the State of New York and others, being the members thereof, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings had in granting to the Intervale Traction Company a…

Appeal by the plaintiff, Edmund Gr. Rawson, from an order of the Supreme Court, made at the Saratoga Trial Term and entered in the office of the clerk of the county of Saratoga on the 22d day of October, 1904, as resettled by an order made at the Saratoga Special Term and entered in said clerk’s office on .the 9th day of January, 1905.

<p> Change of venue—review on appeal of an order granting it. </p> <p>The disposition to be made of a motion to change the venue of a transitory action rests largely in the discretion of the Special Term, and the Appellate Division will not disturb the determination of the Special Term unless such discretion has been abused or unless it r clear that the determination resulted from a palpable error.</p>

Appeal by the plaintiff, Charles L. Booth, from an order of the Supreme Court, made at the Fulton Special Term and entered in the office of the clerk of the county of Fulton on the 18th day of July, 1904, vacating an execution theretofore issued in the action against the person of the defendant.

<p>Specific performance of a contract to convey real property — when ordered — what sufficiently establishes mutuality — refusal of the vendofs wife to join in the deed —financial responsibility of the defendant — what may be considered by the court in t]ie exercise of its.discretion,</p> <p>In order to justify a court of equity in decreeing specific performance of a contract, the contract must in general be mutual in its obligation and in its remedy.</p> <p>Where parties entered into the following agreement:</p> <p>“Norwich, N. Y., May 4¡, 1904.</p> <p>“ In consideration of §1.00 to me paid, I hereby agree to sell my house and lot on South Broad Street to S. A. Jones for the sum of §3,000.00, this option to hold good until May 12, 1904.</p> <p>“BUELL BARNES,”</p> <p>and the dollar consideration mentioned therein was duly paid, assuming that there was no mutuality in the obligations of the instrument before its acceptance by Jones, the moment he, within the time fixed, accepts the option given him and tenders the purchase price of the premises, the element of mutuality arises and Barnes is bound to sell and Jones to buy the premises described therein.</p> <p>Jones, by tendering the purchase price and by commencing the action for specific performance, thereby estops himself from claiming that he is not bound by the agreement.</p> <p>If Barnes refuses to sell, the court may, at the suit of Jones, compel a specific performance of the contract.</p> <p>The refusal of Barnes’ wife to join in a conveyance of the premises will not prevent a decree of specific performance where Jones consents to take title subject to the inchoate right of dower of Barnes’ wife.</p> <p>The fact that Barnes is financially responsible and that Jones has an adequate remedy at law for damages, does not preclude the latter from claiming specific performance.</p> <p>The court, in determining whether to exercise its power to compel specific performance, has a right to consider that Barnes does not live upon the premises and that Jones intends to occupy them as a home.</p> <p>The right, to compel specific performance of a contract for the sale of land rests in the discretion of the court and may be granted or withheld upon a consideration of all the circumstances and in the exercise of sound discretion.</p>

<p>Appeal by the defendant, the Erie Railroad Company, from an order of the Supreme Court, made at the Broome Trial Term and entered in the office of the clerk of the county of Broome on the 5th day of August, 1904, setting aside a nonsuit theretofore granted in the action and granting a new trial.,</p> <p>The action is one to recover damages for the alleged negligent killing, by one of defendant’s trains running easterly, of .plaintiff’s intestate while he was attempting to cross defendant’s railroad at Broad street in Lestershire. He approached the crossing going northerly on Broad street on a slightly descending grade, driving a heavy two-horse bus or band wagon. The view of the tracks westerly, as the crossing is approached from the south at that place, is obscured by a high bank about twenty-five feet south of the southwest corner of the passenger depot on the south side of the tracks and by such depot, except for a short distance between the depot and the bank and except after the depot has been passed and a point about twenty feet south of the first or south rail has been reached, where the track can be seen for about one hundred feet west of the crossing. The passenger depot is but twelve feet south of such first rail. The distance from the heads of the horses to the eyes of the driver when seated in the bus was fourteen feet. The train was not scheduled to stop at that station; it was about thirty-five minutes late and was running at not less than sixty or sixty-five miles an hour. The engineer testified he was running as fast as he could. The engine struck the team and tfirew the plaintiff’s intestate a considerable distance against a box car standing on a side track, killing him instantly. At the close of the plaintiff’s proof the court denied the defendant’s motion for a nonsuit, but at the close of all the evidence the motion was renewed and granted on the ground that the evidence failed to show that the deceased was free from contributory negligence. The plaintiff excepted and made a motion for a new trial on the minutes which, after consideration, was granted. From the oi'der setting aside the nonsuit and granting a new trial the defendant appeals.</p>

Appeal by the defendant, Thomas F. McGovern, from a judgment of the County Court of Madison county, entered in the office of the cleric of the county of Madison on the 8th day of June, 1904, upon the verdict of a jury convicting the defendant of the crime of forgery in the second degree, and also from an order of said court made on the 15th day of June, 1904, denying the defendant’s 'motion to set aside the verdict and for a new trial made upon the minutes.

Appeal by the defendants, John L. Mock and another, and by Adelbert W. Boynton, from an order of the Supreme Court, made at the Montgomery Special Term and entered in the office of the clerk of the county of Essex on the 18th day of February, 1905.

<p>Action by a citizen of New York, without leave of court, against a foreign receiver of a foreign corporation—it constitutes a contempt of court, but the court has jurisdiction — a demurrer is an appearam.ce — comity requires the recognition of-a foreign receiver — what contract relating to lands in another jurisdiction is attachable under section 648 of the Code of Civil Procedure — action to set the contract aside because of fraud — what will be treated as surplusage in the complaint.</p> <p>The commencement of an action against a receiver without leave of the court does not affect the jurisdiction of the court to entertain the action, but simply constitutes a contempt of court; the proceedings taken in the action are regular until the court sets them aside or stays them.</p> <p>The service, by the receiver, of a demurrer to the complaint constitutes a general, appearance.</p> <p>On the principle of comity the courts of the State of New York uphold the title of a foreign receiver of a foreign corporation, and he may come into the State of New York and enforce the obligations due the corporation which he represents in the same manner as a domestic receiver.</p> <p>A resident of the State of New York may enforce iu the Supreme Court thereof an obligation, arising out of a transaction occurring in the State of New York with receivers of a foreign corporation appointed in a foreign State, where such receivers are regularly in court so that jurisdiction of them is obtained. Qucere, where a corporation and an individual enter into a contract, whereby the individual undertakes that the corporation shall acquire the entire capital stock, less five shares, of,another corporation and shall become the owner of a specified quantity of land in the Republic of Ecuador, in consideration of which the individual is to have certain interests in the corporation and in its subsidiary companies, whether the contract comes within the provisions of section 648 of the Code of Civil Procedure, making certain obligations attachable. One who has been induced to enter into a contract, by false and fraudulent representations upon which he has relied, may bring an action to establish the fraud and to be released from the provisions of the contract whether or not the enforcement of the contract is attempted or threatened.</p> <p>Such an action may be brought by a resident of the State of New York against the foreign receiver of a foreign corporation, if the court acquires j urisdiction of the receiver’s person, notwithstanding that the contract was not made in the State of New York, and although the contract relates to lands in a foreign country.</p> <p>An allegation in the complaint that the sheriff, one of the defendants in the action, threatens to enforce the contract which he claims to have acquired under an attachment may be treated as surplusage.</p>

Appeal by the plaintiff, Fannie J. Smith, from so much of an order of the County Court of Tompkins county, entered- in the office of the clerk of the county of Tompkins on the 17th day of August, 1901, reversing a judgment of the justice of the peace of the' city of Ithaca, in favor of the defendant, as states that such judgment is reversed “for an error in fact not affecting the merits, which the justice committed, without costs to either party.”

Appeal by the plaintiffs, Anna 0. Slingerland' and others, from an order of the Supreme Uourt, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 18tli day of January, 1905, directing the plaintiff to furnish a bill of particulars.

<p> Interlocutory judgment (f divorce—a marriage contracted in another State, thereafter and before final judgment, is void—effect of the party seeking to avoid it having cohabited with the other party after the entry of final judgment. </p> <p>An interlocutory judgment of divorce in the form prescribed by section 1774 of the Code of Civil Procedure is ineffectual to dissolve the marriage relation between the parties, and a marriage contracted by the guilty husband with another woman in another State prior to the entry of the final judgment of divorce is absolutely void.</p> <p>The fact that the parties to the second marriage live together, after the entry of the final judgment, does not constitute a ratification of the void marriage, as such a marriage is not the subject of ratification, nor does in constitute the making of a new contract of marriage, it appearing that such cohabitation did not take place until after the statute abolishing the so-called parol common-law marriages had taken effect.</p> <p>Such cohabitation does not require the court to refuse to grant the wife of the second marriage a decree adjudging such marriage to be null and void, where it appears that there are no children, that the wife was barely eighteen years of age when the ceremony was performed and that the amendment to section 1774 of the Code of Civil Procedure had been in effect less than two months when the interlocutory judgment was entered, shortly after which the ceremony was performed.</p>

<p>Appeal by the defendant, William L. Hitclicoclc, as administrator, etc., of Catalina V. N. McNitt, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Washington on the 15th day of November, 1904, upon the report of a referee.</p>

Appeal by the defendant, The Board of Supervisors of Columbia County, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Columbia on the 1st day of March, 1905, granting the relator’s motion for a peremptory writ of mandamus.

Certiorari issued out of the Supreme Court and attested on the 18th day of September, 1903, directed to Nathan L. Miller, as Comptroller of the State of New York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings had in relation to the assessment of a franchise tax against the relator for the year ending October 31, 1901, and the assessment of a license fee and in relation to the revision and readjustment…

Appeal by the plaintiff, Emma E. Shaw, from an order of the Supreme Court, made at the Delaware Special Term and entered in the office of the clerk of the county of Delaware on the 13th day of March, 1905.

Appeal by the defendant, Daniel Norton, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 16th day of July, 1904, upon the decision of the court, rendered after a trial before the ■court without a jury at the Albany Trial Term, perpetually enjoining the defendant from cutting certain ice located in the Mohawk ¡basin.

Appeal by the plaintiff, Jessie E. Hanly, an infant, by Charles E. Watkins, her guardian ad litem, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Schuyler on the 1st day of November, 1904, upon the decision of the court, rendered after a trial at the Schuyler Special Term, dismissing the complaint upon the merits.

Appeal by the plaintiff, Jerusha H. Doughty, from an order of the County Court of Essex county, entered in the office of the clerk of the county of Essex on the 20th day of February, 1905, denying the plaintiff’s motion for the dismissal of an appeal by. the defendant from a judgment of the Justice’s Court of the town of Chesterfield, Essex county.

Appeal by the plaintiff, the St. Regis Paper Company, from a judgment of the Supreme Court in favor of the defendant; the Santa Clara Lumber Company, entered in the office of the clerk of the county of franklin on the 16th day of February, 1904, upon the decision of the court, rendered after a trial at an adjourned term of the Franklin Special Term, with notice of an intention to bring up for review upon such appeal an order bearing date the 6th day of February, 1904, and…

Appeal by Margaret Gr. Ronayne, individually and as executrix, etc., of Sarah J. Hassett Choate, deceased, from an order of the Surrogate’s Court of the county of New York, entered in said Surrogate's Court on the 18th day of April, 1905, authorizing the respondents to act as executors of the will of said decedent within the limits specified by section 2582 of the Code of Civil Procedure, pending appeals from a decree admitting the said will to probate.

<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 New York on the 15th 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 15th day of March, 1904, denying the defendant’s motion for a new tidal made upon the minutes.</p>

Appeal by the defendant, the Metropolitan Street Railway Company, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 27th day of December, 1904, setting aside the verdict of a jury theretofore rendered in favor of the defendant and granting a new trial of the action.

Appeal by the defendant, the Herring-Hall-Marvin Safe 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 23d day of April, 1904, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 25th day of April, 1904, denying the defendant’s motion for a new trial made upon the minutes.

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 New York on the 7th day of October, 1904, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 10th day of October, 1904, denying the defendant’s motion for a new trial made upon the minutes.

<p>Action by a contract vendee of real properties to obtain an adjudication that two contracts were interdependent — a request, at the trial of an action to recover purchase money paid and expenses of search, that specific performance be decreed will not be granted.</p> <p>An agreement for the sale of three adjoining parcels of land was embraced in two contracts, the vendors in the contract covering one of the parcels being the executors of an estate, and the vendors in the other contract, covering the remaining two parcels, being one of the executors individually and another person.</p> <p>The contract vendee took title to one of the parcels, but refused to take title to the remaining two parcels, one of which was covered by the contract with the executors, on the ground that the title thereto was unmarketable. She then brought an action against the executors, alleging that it was the understanding of the parties that if the title to any one of the three parcels was unmarketable both contracts should be void. She demanded as relief that the contract with the executors be so reformed and that she recover the moneys paid thereon, with the expenses of examining the title. She stated upon the trial that if the court should refuse her the relief asked in the complaint, she would ask to have the contract specifically enforced so as to enable her to complete the contract. The trial court, upon sufficient evidence, refused to grant the plaintiff the relief asked for in the complaint and also refused to award her the alternative relief which she had requested upon the trial.</p> <p>Held, that the Appellate Division would not reverse the judgment dismissing the plaintiff's complaint for the purpose of enabling the plaintiff to obtain the alternative relief which she demanded upon the trial, but which she had not demanded in her complaint and was not entitled to under the allegations thereof.</p>

<p> Ch’ime of attempting to commit robbery in the first degree—what acts done by persons, acting under instructions from the district attorney, as pretended confederates of the defendant, will not prevent a conviction. </p> <p>Upon the trial of an indictment charging the defendant with the crime of attempting to commit robbery in the first degree, the prosecution gave evidence to the effect that the defendant proposed to one Nelson that he rob a man named ” Lewis and that the proceeds of the robbery be divided equally among Nelson, the defendant and a woman acquaintance of the latter; that Nelson agreed to commit the robbery, but the next day went to the district attorney’s office and thereafter followed the instructions of the detectives employed therein; that subsequently the defendant told Nelson that he was to secrete himself in a hall near the entrance to Lewis’ place of business and as Lewis came out was to strike him a blow on the head, rob him of his jewelry and money and bring them to the defendant; that the defendant also gave Nelson a piece of rubber hose loaded with lead as a weapon with which to assault Lewis; that Nelson informed the defendant that he knew a man, who, for fifteen or twenty dollars, would assist them in the robbery, and that, the defendant having agreed to the employment of this person, one of the employees of the district attorney was introduced to him as the man spoken of; that it was agreed that such man should commit the assault and should receive therefor fifteen dollars; that Nelson should rob Lewis after he was rendered unconscious and turn over the proceeds of the robbery to the defendant; that the defendant appointed the time for the commission of the robbery and arranged to meet Nelson and his confederate in the vicinity of Lewis’ place of business; that the parties met as arranged and that the defendant told Nelson and his confederate to go upstairs and commit the robbery while the defendant waited below; that Nelson and his confederate went upstairs to wait for Lewis and that while the defendant was waiting in the neighborhood, he was arrested. Lewis, who had no knowledge of the attempt that was to be made to rob him, was upon the premises at the time.</p> <p>Held, that the evidence was sufficient to sustain the judgment of conviction;</p> <p>That the first suggestion of the robbery having come from the defendant, the part which cthe police authorities had taken in the transaction did not prevent the defendant from being convicted;</p> <p>That the procuring and giving to Nelson of the weapon designed to be used in assaulting Lewis was an act done by the defendant with intent to commit the crime and tending, but failing, to effect its commission within the meaning of section 34 of the Penal Code.</p>

Appeal by the plaintiffs, Philo L. Mills and others, 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 9tli day of June, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 11th day of June, 1903, denying the plaintiffs’ motion for a new trial made upon the minutes.

Appeal by t-lie defendant, The Manhattan 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 New York on the 21st day of April, 1904, upon the verdict of a jury for $5,00Q, and also from an order entered in said clerk’s office on the 14th day of April, 1904, denying the defendant’s motion for a new trial made Upon the minutes.

<p>Appeal by the defendant, Emily M. English, as executrix, etc., of George W. English, 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 25th day of January, 1905, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 23d day of January, 1905, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendants, Ferdinand M. Thieriot and others, as executors, etc., of Peter Marie, 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 20th day of December, 1904, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 1st day of December, 1904, denying the defendants’ motion for a new trial made upon the minutes.</p>

<p>Appeal by the relator, Joseph W. Lorge, 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 31st day of March, 1905, denying the relator’s paotion for a peremptory writ of mandamus.</p>

<p>Appeal by the plaintiff, Lucy B. Mitchell, 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 14th day of April, 1904, upon the decision of the court rendered after a trial at the New York Special Term dismissing the complaint upon the merits.</p>

<p>Appeal to the General Term of the Court of Common Pleas by the plaintiff, Karl M. Wallach, from a judgment of the Court of Common Pleas for the city and county of New York in favor of "the defendants, entered in the office of the clerk of the county of New York on the 9th day of March, 1895, upon the decision of the ■court, rendered after a trial at an Equity Term of said court, dismissing the complaint upon the merits.</p>

Appeal by the defendant, The City of Few York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Few York on the 20th day of December, 1904, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 23d day of December, 1904, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the petitioner, The Tweedie Trading Company, from •an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of December, 1904, granting the motion of the Somerset Coal Company to vacate an order made by a justice of the Supreme Court on the 10th day of August, 1904, for the examination of certain witnesses, and suppressing the depositions taken under said order.

Appeal by the plaintiff, The New York Fireproof Tenement Association, 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 12th day of January, 1905, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

<p>Appeal by the defendant, the B. G. Packard 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 Hew York on the 28th day of Hovember, 1904, upon the decision of the court, rendered after a trial at the Hew York Special Term, overruling the defendant’s demurrer to the amended complaint.</p>

Appeal by the plaintiff, Charles E. Parker, 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 3d day of April, 1905, striking the case from the Special Term calendar.

Appeal by the plaintiff, Edward W. Duryee, from an interlocutory 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 1st 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 separate defense and counterclaim set out in the defendants’ answer, and also from an order entered in said clerk’s office on the 29 th…

<p> Marketable title—specific performance will not be decreed where a doubt exists whether a will gives to executors (the venders) a power of sale. </p> <p>A will, after a specific bequest of §20,000, provided as follows: “ All the rest, residue and remainder of my estate, both real and personal, I give, devise and bequeath to my executors hereinafter named, and the successor or successors of them or either of them, in trust, nevertheless and for the following uses and purposes: To invest the same and keep the same invested, and to receive the Tents, issues and profits thereof, and to pay over the same in semi-annual payments to my aforesaid wife for and during her natural life or as long as she ¡shall remain unmarried, but if my said wife shall remarry, then in that case I •direct that my said trustees shall upon the said remarriage of my said wife, pay over absolutely to each of my children then surviving the sum of Twenty thousand dollars (§20,000), and to the issue then surviving of any deceased child the said sum which its parent would have taken if then surviving, the distribution among said issue to be per stirpes and not per capita.”</p> <p>Held, that the question whether the executors had power to sell the testator’s-real estate, or, if they had such power, whether it could be exercised at a-time when such exercise was not necessary to enable real property to he converted into cash in order to pay the specific bequest, and before the contingency-calling for a distribution among the testator’s children had happened, was involved in such doubt that the court would not compel a contract vendee of the testator’s real estate to specifically perform the contract, particularly where-the remaindermen under the will were not parties to the proceeding instituted to compel such specific performance.</p> <p>The character of the title which a contract vendee of real estate is entitled to demand, considered. '</p>

Appeal by the petitioners, Edmund Cooper and others, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th' day of January, 1905, as appoints one George Kettle the committee of the person of William F. Cooper, an incompetent.

<p>Appeal by the defendant, Henry B. Sire, from so much of an interlocutory 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 25th day of November, 1904, upon the decision of the court rendered after a trial at the New York Special Term, as adjudges and decrees “ that, the contracts of the plaintiff with Marie Cahill, Frederic Ranken, Henry Eh Hadley and George H. Broadhurst, which were contributed by him to the partnership, copies of which were annexed to the complaint, become the property of the plaintiff upon the signing-of this decree and thereupon all the rights of the partnership and of the defendant in said contracts, accruing from the partnership agreement, shall and the same hereby cease, and said contracts and contract rights contributed by the plaintiff to said copartnership are hereby restored to the plaintiff free from all claims of the defendant and of said copartnership.”</p>

<p>Appeal by the plaintiff, Walter P. Long, as trustee in bankruptcy of the late firm of Meeker, Carter & Booraem and of Frederick W. Meeker and others, members of said firm, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of March, 1905, directing that the Mt. Holly Brick and Clay Company be made a party defendant in the action.</p> <p>This action is brought by the trustee in bankruptcy of the firm of Meeker, Carter & Booraem to recover a balance of $1,487.22 claimed to be due from the defendant Burke for brick which it is alleged the firm sold and delivered to him.</p> <p>The Mt. Holly Brick and Clay Company, a foreign corporation, moved to be made a party defendant in the action, and in the affi davit read in support of the motion it is alleged that Meeker, Carter & Booraem, in selling a part of the brick to Burke, acted merely as the selling agent of the Mt. Holly Brick and Clay Company, which, therefore, claims to be entitled to the balance due from Burke for those brick. The affidavit further alleges that the brick furnished by the company was manufactured by it under a special order for work which was being done by Burke in the construction of an armory in the city of New York, and that on November 12,1901, the company filed a municipal lien with the secretary of the armory board of said city for the balance due for the brick. It is also alleged that on the preceding day, November eleventh, a collusive action was commenced for the dissolution of the firm of Meeker, Carter & Booraem; that a judgment was entered therein and a receiver of the firm appointed; that the Mt. Holly Brick and Clay Company had no knowledge of this action or of any of the proceedings therein until several days after the receiver had been appointed, and that upon learning of that fact it thereupon notified the receiver of the filing of its lien; that in December, 1901, involuntary bankruptcy proceedings were begun against the firm of Meeker, Carter & Booraem, and the plaintiff Long was appointed its receiver, and was thereafter informed of the lien of the Mt. Holly Brick and Clay Company ; that on December fourteenth the firm of Meeker, Carter & Booraem was adjudged a bankrupt, and on May 9, 1902, the plaintiff Long was appointed its trustee in bankruptcy.</p> <p>It is further alleged that early in the year 1902 several actions were begun to foreclose municipal liens which had been filed against Burke, and in April of that year, upon the motion of Burke, those actions were consolidated and the Mt. Holly Brick and Clay Company was named as one of the defendants in the consolidated action, and that on October 16, 1903, it served its answer therein; that thereafter several of the lienors entered into an agreement by which their claims were satisfied, and the action was discontinued • as to them; that the consolidated action came on for trial as against the Mt. Holly Brick and Clay Company in November, 1904, and it was then agreed by the parties thereto that Burke should pay to the Mt. Holly Brick and Clay Company $1,494.04 in payment for the brick in question, etc., and that the company should give him a bond indemnifying him against any action or claim that might thereafter be brought or made against him on account of such brick; that this arrangement was carried out by both parties, the Mt. Holly Brick and Clay Company giving its bond as aforesaid and the order was entered discontinuing the consolidated action; that although the plaintiff had knowledge of all these facts, no action was taken by him until December 5, 1904, when the present suit was begun. Upon these facts the Mt. Holly Brick and Clay Company bases its claim to an interest in the subject-matter of this action, which it contends gives to it the right to be made a party defendant therein.</p> <p>On the other hand, the affidavits read in opposition to the motion allege that, while the brielc in question was manufactured by the Mt. Holly Brick and Olay Company, nevertheless it was sold absolutely by that company to the firm of Meeker, Carter & Booraem, without knowledge of the parties to whom that firm intended to consign the brick; that the firm of Meeker, Carter & Booraem became the owner of the brick by purchase from the Mt. Holly Company; that the firm as owner sold the brick to Burke and did not in that transaction act as the selling agent of the Mt. Holly Brick and Clay Company; that the latter company never intended to look to Burke for payment for the brick until after the appointment of the receiver of the firm of Meeker, Carter & Booraem on November 11, 1901, and that it was subsequent to such appointment that the Mt. Holly Brick and Clay Company’s lien was filed.</p> <p>The court granted the motion giving leave to the Mt. Holly Brick and Clay Company to intervene as defendant, and from the order to that effect the plaintiff appeals.</p>

<p>Proceedings brought by the Association of the Bar of the City of Hew York against George Alfred Lamb, an attorney at law, to suspend him from practice or remove him from his office of attorney and counselor at law for improper and unprofessional conduct.</p>

<p>Beeord on appeal — the notice of appeal, judgment roll and case — duty of the clerk.</p> <p>When a record on appeal is presented to the clerk of the Appellate Division, it is his duty to see whether the papers have been printed in the order required by rule 41 of the General’ Rules of Practice, viz., the notice of appeal, the judgment roll and the case or case and exceptions; if they have not been printed in this order, he is not obliged to receive and file the record,</p> <p>Motion by the defendants, Patrick T. Powers and others, for an order directing the clerk to receive and file the record on appeal in the above-entitled action.</p>

<p>Appeal by the defendant, John A. Stewart, 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 7th day of January, 1905, upon the report of a referee.</p>

Appeal by Otto Kelsey, as Comptroller of the State of New York, from an order of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 17th day of January, 1905, sustaining the respondents’ appeal from an order theretofore entered in said Surrogate’s Court, confirming the report of the appraiser, and remitting the matter to the said appraiser for further proceedings.

Appeal by the defendant, Philip McIntyre, 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 21st day of February, 1905, denying the defendant’s motion to vacate an attachment theretofore issued in the action.

<p>Appeal by the defendant, The Baltimore and Ohio Railroad Company, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 26th day of April, 1905, denying the defendant’s motion to stay the prosecution of the above-entitled action until the payment by the plaintiff of costs in a former action.</p>

Appeal by the defendant, J. Samuel Piza, 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 15th day of December, ' 1904, affirming a judgment of the City Court of New York city in favor of the plaintiff, entered in the office of the clerk of said City Court on the 27th day of May, 1904, and also (as stated in the notice of appeal) from a judgment of the ■ said City Court, entered on the 22d day of…

. Appeal by the defendant, Nathan Abrahams, 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 10th day of January, 1905, denying the defendant’s motion to compel the taxation of costs.

Appeal by the defendant, Herman de Selding, 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 27th day of April, 1905, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendant, James B. Kellogg, 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 April, 1900, upon the verdict of a jury, convicting the ■defendant of the crime of grand larceny in the first degree, and ■sentencing him to State’s Prison.

Appeal by the defendant, the Union Railway Company of ISTew 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 blew York on the 14th day of December, 1904, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 12th day of December, 1904, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Charles L. Atterbury 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 New York on the 8th day of May, 1905, upon the report of a referee directing the specific performance of a contract for the sale of real estate.

Appeal by the plaintiff, Stanislas Dubuc, 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 8th day of May, 1905, vacating a judgment entered in said clerk’s office on the 19th day of May, 1904, upon the verdict of a jury in favor of the plaintiff, and granting a new trial of the action. The facts are stated in the dissenting opinion of Mr. Justice Laughlin.

<p>Action by a principal to compel agents to account — when the relation is fiduciary but not that of trustee — burden of proof as to payments made by the agents — effect of accounts having been rendered and accepted — allowance of costs to an agent against whom judgment is rendered.</p> <p>A testator, by bis will, bequeathed to bis widow the sum of §200,000 individually, and the rest, residue and remainder of bis estate to her in trust for the benefit of the testator’s daughter during her minority, and to pay over such rest, residue and remainder to the daughter when the latter attained the age of twenty-one years. The widow, individually and as trustee under her husband's will, executed a power of attorney, by which she constituted both Leon Abbett and W. J. A. Fuller, who were attorneys and counselors at law and copartners, her agents and attorneys to manage her personal property and the property of the trust estate.</p> <p>Held, that the relation existing between the widow and Abbett and Fuller was that of principal iyid agent, and that, while such relation was undoubtedly confidential and fiduciary in its nature, Abbett and Fuller were not, in the strict sense, trustees of any property to which the widow was entitled;</p> <p>That, in a suit by the widow against the personal representatives of both Abbett and Fuller to obtain an accounting, it was not essential that the defendants should prove each payment made to the widow with the particularity required of a strict trustee;</p> <p>. That such payments could be satisfactorily established by accounts rendered from time to time by Abbett and Fuller to the widow, which accounts had been accepted by the widow as correct;</p> <p>That the burden of subsequently showing such accounts to be incorrect rested upon the widow, and' that the defendants were not obliged to prove their correctness;</p> <p>That the action for the accounting, having resulted in an adjudication that the widow was entitled to recover only a small sum frofn Fuller’s representatives instead of the larger amount claimed by her, the trial court would have been justified in refusing to award her costs against Fuller's representatives, but that it was improper to allow Fuller’s representatives costs against her.</p>

Appeal by the plaintiff, Lorenz Reich, in the first of the above-entitled consolidated actions, and by the defendants, Eva S. Cochran and others, as executors and trustees, etc., of William F. Cochran, deceased, in the second action,.from an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 7th day of April, 1904, upon the decision of the court rendered after a trial at the New York Special Term, the appeal by…

Appeal by the defendants, Charles H. Stein way and others, as _ executors of and trustees under the last will and testament of William Steinway, deceased, 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 21st day of November, 1901, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term.

Appeal by the plaintiff, Henry F. Van Loan, from an interlocutory judgment of the Supreme Court in favor of the defendant, The -City of New York, entered in the office of the clerk of the county of New York on the 20th day of March, 1905, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the plaintiff’s demurrer to the answer of the said defendant.

Appeal by the plaintiff, Patrick M. Carolan, individually and as-executor, etc., of Neal O’Donnell, deceased, from so much of an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 20th day of April, 1905, as awards costs and allowances to the defendants O’Donnell.

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

<p>Leave to issue an execution against an administrator — what must he shown on an application therefor — the fact that an administrator treated money as belonging to the estate is not conclusive — when an accounting should he ordered — no preference can be given, »</p> <p>On an application under sections 1825 and 1826 of the Code of Civil Procedure, for leave to issue execution upon a judgment rendered against an executor or administrator in his representative capacity, the petitioner is required to show either that the executor or administrator has funds of the estate on hand applicable to the payment of the judgment which he refuses to so apply, or that funds of the estate have been misapplied which should have been devoted to the payment of the judgment. '</p> <p>Where, on such an application, a question arises as to whether moneys, received by an administrator with the will annexed from the United States upon a claim known as one of the “French Spoliation Claims,” constitutes an asset of the estate or a mere gratuity given by the United States to the testator’s next of kin, the fact that the administrator with the will annexed treated a portion of such money as an asset of the estate is not conclusive upon the question as to the character of such money.</p> <p>"When, in such a case, the question as to the character of such money should not be determined upon affidavits, but upon an accounting had pursuant to subdivision 1 of section 2725 of the Code of Civil Procedure, considered.</p> <p>2To preference can be given to a judgment creditor under section 1829 of the Code of Civil Procedure.</p>

<p>Reargument of an appeal by the defendants, Theodore H. Conger and others, from portions of 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 November, 1902, upon the report of a referee.</p>

Appeal by the defendant, Emil Steffens, 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 20th day of October, 1904, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 24tli day of October, 1904, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the petitioner, Sidney J. Cowen, as committee of the person and estate of Mary Ann Dunn, a person of unsound mind, from an order of the Surrogate’s Court of Rew York county, entered in said Surrogate’s Court on the 17th day of March, 1905, denying the petitioner’s application for the removal of Carrie B. Cawley, as administratrix with the will annexed of Ellen L. Dunn, deceased.

Application by the relator, Abraham H. Hummel, for a writ of prohibition directed to the respondents restraining them from proceeding further in certain criminal actions against the relator instituted by indictments of the grand jury of the county of Hew York, a motion to set aside which had been denied.