Volume 106 — New York Appellate Division Reports

Appeal in each of three actions by the defendant, the New York, City Railway'Company, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of Ike plaintiff, entered in each action on the 29th day of April, 1904.

Appeal by Peter J. Collins, as superintendent of the bureau of buildings of the city of New York for the borough of Brooklyn, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 6th day of March, 1905, granting the petitioner’s application for a peremptory writ of mandamus compelling him to approve a proposed amendment to a plan for the construction of a building in said borough.

Appeal by Otto Kelsey, as Comptroller of the. State of New York, from an order of the Surrogate’s Court of the county of Dutchess, entered in said Surrogate’s Court on the 2d day of December, 1904, affirming an order entered in said court on the 12th day -of Noveihber, 1904, fixing the transfer' tax upon the estate of Charles IT. Buckingham, deceased.

<p>Malpractice— a complaint alleging that an inf ant employed physicians and, surgeons to attend and cure him imports a contract and consent of the parents-^-what proof of negligence is required — what shill is required of the surgeon.</p> <p>An allegation in the complaint in an action, to the effect that an infant employed physicians and surgeons to attend and cure him, necessarily implies that a contract to that effect has been made or has arisen by opefEEibn of law between the parents of the infant and the physicians and surgeons; it also imports the giving ofTuch parental consent as was necessary to authorize the physicians and surgeons to do whatever might be proper, including the performance of an operation, in the treatment~of tlíéláfant, for the purpose of bringing about the desired cure.</p> <p>The plaintiff, in an actidn brought to recover damages on the ground of negligence, is not obliged to prove the negligence beyond.a reasonable doubt, but only by a preponderance of evidence.</p> <p>A physician and surgeon, upon undertaking the treatment of a patient, represents that he possesses that reasonable degree of learning and skill ordinarily belonging to a physician and surgeon in the locality in which he practices, and he must use reasonable care and diligence in the exercise of his skill and in the application of his learning and act according to his best judgment.</p>

Appeal by the defendant, Isaac Mason, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 15th day of July, 1904, upon the. verdict of a jury for $900; and also from an order entered in. said clerk’s office on the 15th -day .of July, 1904, denying the defendant’s motion for a new trial made upon the minutes.

•Appeal by the relator, James R. McCullough, from an order of the Supreme Court, made at the ¡Dutchess County Special Term and entered in the office of the clerk of the county of Orange on the 17th day of February, 1905, denying the relator’s application fbr a peremptory writ of mandamus.

Appeal by Horace F. Hutchinson from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 30th day of January, 1903, continuing the report of commissioners of estimate and assessment in the above-entitled proceeding.

Appeal by the defendants, George Burns and others, aldermen of. the city of Poughkeepsie, constituting the common council of said city, and another, from an order of the Supreme Court, made at the Westchester Special Term and entered, in the office of the clerk of the county of Dutchess on the 17th day of January,. 1905, granting the -relator’s application for a peremptory writ of 'mandamus.

Appeal by the defendant, Edward D. W. Langley, individually and as administrator de bonis non with the will annexed- of Frances A. Skinner, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 29th day of April, 1904, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 28th day of April, 1904, denying the defendant’s motion for a new trial made upon the…

Reargument of a writ of certiorari, issued out of the Supreme Court and attested on. the 11th day of December, 1903, directed to Tredwell Abrams and others, composing the board of town auditors of the town of Hempstead, commanding them to certify and return to the office of the clerk of the county of Nassau all and singular their proceedings had in rejecting a claim presented by the relator.

<p>Appeal by Claus Henry Martens, as executor, etc., of Claus H. Martens, deceased, from an order, of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 29th day of March, 1905, directing the appellant to pay to Theresa E. Martens interest upon a sum of money, as well as the principal, bequeathed to her by the will of the decedent.</p>

<p>Teacher in a publie school in the city of Brooklyn at the time of the consolidation of that cily with the city of Greater Hew York—protected from summary, removal by section 1114 of the-Greater Hew York charter — who is not a person holding “ office” for a “definite” term.</p> <p>In 1890 one Bogert, who held a certificate from the Superintendent of Public Instruction conclusively evidencing his ability to teach in any common school in the State of Mew York, and which certificate had never been revoked, was employed as the teacher and principal of a common.school in the town of New Utrecht, Kings county, under a written contract for one year. Such employment was continued from year' to year and was in force in July, 1894, when the town of New Utrecht was incorporated into the- city of Brooklyn.</p> <p>After sueli incorporation. Bogert continued'as principal of the school in question. The school authorities of the city of Brooklyn took no action affecting him or his position until January 8, 1897, when the board of education of that city passed a resolution authorizing the superintendent of public instruction to grant Bogert a teacher’s certificate for a term not longer than, one year, hut which could be renewed from year to year provided the work of the holder continued satisfactory.</p> <p>In June, 1897, the committee on teachers reported to the board of education, under the heading ‘‘Appointments for Specified Time,” the following: “ School No. 105' Name of Teacher, Frank M. Bogert (the plaintiff) ; Grade, Branch Principal; Date; Sept. 13 to June 30.” .Bogert was not shown to have had any knowledge of the proceedings of the board of education in 1897.</p> <p>January 1, 1898, the city of Brooklyn was incorporated into the greater city of New York pursuant to the Greater New York charter (Laws of 1897, chap. 378). January 25; 1898, the hoard of education of the city of Brooklyn, whose powers were continued until February 1, 1898, adojited a resolution authorizing the superintendent of public instruction to grant a special permanent certificate, equivalent to head of department certificates, to Bogert. Bogert continued to serve as principal and teacher in the school in question until June 30, 1898, when he was summarily removed.</p> <p>Held, that Bogert, being a teacher in the public school system of. the city of Brooklyn at the time when the Greater New York charter took effect, was protected from summary removal by section 1114 of the Greater New York charter, irrespective of the term for which he had been employed in the Brooklyn public school system at the time the Greater New York charter took effect;</p> <p>That Bogert was not a person holding "‘ office” for a ''definite ” term within the meaning of those words as used in section 1117 of the Greater New York charter.</p>

<p>De facto trustees of the town of Southampton—an attorney employed hy them may compel audit of Ms claim.</p> <p>The trustees of the freeholders and commonalty of the town of Southampton have power, under the royal charters granted in 1676 and 1686, to employ counsel, when, in the proper discharge of their duties, the aid of counsel may he deemed to he necessary.</p> <p>Trustees of the freeholders and commonalty of the town of Southampton were elected in April, 1901. Similar trustees were also elected April 1,1902. The trustees elected in 1901, claiming to have been elected for a period of two' years, retained the seal of the town, its books and records, and transacted all the business relating to the trust until April 1, 1903. The validity of their contention depended upon the construction of the Biennial Town Meeting Law (Laws of 1897, chap. 481, as amd.). After April 1, 1902, the trustees elected in 1901 employed an attorney who in the year 1902 performed useful and valuable services in behalf of the town.</p> <p>Held, that the trustees elected in 1901 were, at the time of the employment of the attorney, de Jacto trustees, and that the town was liable for the value of the attorney’s services irrespective of whether or not such trustees were trustees de jure.</p>

<p>Appeal by the plaintiffs, Henry H. Jackson and others, as executors of and trustees under the last will and testament of-Peter A, H. Jackson, deceased, -from an order of the Supreme Court, made at the Kings County Special Term and entered jin the office of the clerk of the county of Richmond on the 30tli day of July, 1903, denying the -plaintiffs’ motion to vacate a judgment theretofore entered in-favor of the defendant and for a, new trial of the action upon the ground of newly-discovered evidence.</p>

Appeal by the defendants, Charles W. Truslow, individually and as trustee of the estate of William Wall, deceased, and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 13th day of June, 1904, upon the. decision of the court rendered after a trial at the Kings County Special Term.

<p>Appeal by the defendant, Annie D. Flynn, individually and as administratrix with the will annexed of John Flynn, deceased, from portions of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Kings on the 13th day of July, 1904, upon the decision of the court, rendered after a trial at the Kings County Special Term, construing the. will of John Flynn, deceased.</p>

Certiorari issued out of the Supremé Court and attested on the . 21st day of December, 1904, directed to John A. Snedeker. and others, as the board of town auditors of the town of White Plains, commanding them to certify and return to the office of the clerk of the county of Westchester all and singular their proceedings had in relation to the refusal to audit-a claim presented by the firm-of McCabe & Duffy against the town of White Plains.

<p>Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office'of the clerk'of the county of Queens on the 28th day of June, 1904y upon the decision of the court rendered after a trial before the court without a jury at,the Queens County Trial Term.</p> <p>The action was brought against the city of New York, as the successor of Long Island City, to recover for services alleged to have been rendered by the plaintiff as a patrolman on the police force of Long Island City between November 23, 1897, and Janu-ary 1, 1898.</p>

Appeal by the relator, Rose M. Finigan, from a final order of.the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 24th day of. June, 1904, quashing an alternative writ of mandamus theretofore issued upon - the application of the relator.

<p> Negligence—a purchaser of an acetylene gas generator, under a special warranty that it was safe, cannot recover damages caused by an explosion to which his negligence, in failing to obey local regulations relating to its use, contributed. </p> <p>Where the vendee of an acetylene gas generator, who purchased such generator for use in his business as a photographer, under a special warranty that it was safe for such purpose, brings an action against the vendor on the theory of a 'breach of such warranty to recover damages for personal injuries sustained by him in consequence of the explosion of the generator, which explosion was due to the fact that the gas from the generator was ignited by a lighted gas jet in the room in which it was being used, the vendor is entitled to have the jury charged that he had the right to assume, in the absence of notice, or reasonable ground for notice to the contrary, that the vendee would use the generator in accordance with the laws, ordinances and regulations of the locality in which he might use it.</p> <p>Negligence on the part of the vendee, contributing to the explosion, will prevent a recovery by him, although such negligence was not the sole cause of the accident.</p>

Appeal by the defendant, the Interstate Paving 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 15th day of April, 1904, upon the verdict of a jury for $3,500, and also from an order entered in said clerk’s office on the 18th day of April, 1904, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Henry Graham, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 25th day of January, 1904, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 26th day of January, 1904, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Edward S. Percival, 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 29th day of April, 1904, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the plaintiff’s complaint.

Appeal by the plaintiffs, Samuel A. Avila and others, as trustees, of the Inebriates’ Home for Kings County, 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 25th day of October, 1904, upon the report of a referee, dismissing the complaint upon the merits.

Appeal by the plaintiff, Daniel F. Crilley, 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 11th day of April, 1903, upon the dismissal of the complaint by direction .of the court after a trial at the Kings County Trial Term.

Appeal by the plaintiff, Charles Sutter, 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 19th day of April, 1905, vacating a judgment theretofore entered in the action in favor of the plaintiff and restoring the case to the calendar for trial.

<p>Appeal by George G. Dutcher from an order of the Surrogate’s; Court of the county of Kings, entered in said Surrogate’s Court on. the 16th day of February, 1905, directing the appellant to deliver certain papers to the attorney for the respondent.</p>

Appeal by the petitioner, the Grace Methodist Episcopal Church of Wakefield, N. Y., from an order of the Supreme Court, made at the Kings County Special Term' and entered in the office of the clerk of the county of Kings on the 6th. day of July, 1904, denying the said petitioner’s motion for an order authorizing and directing the commissioners of estimate and assessment in the above-entitled proceeding to receive its verified claim for damages caused by reason of the…

Appeal by the defendant, David Michael, from an order of the Supreme Court, made at the Kings County Special Term and entered in tlie office of the clerk of the County of Kings on the 23d day of February, 1905.

Appeal by the relator, Frederick G. Bourne, from an order of the Supreme Court, made at the Suffolk Special Term, and entered in the office of the clerk of the county of Suffolk on the 21st day of December, 1904, dismissing a writ of certiorari theretofore issued upon the application of the relator.

Appeal by the plaintiffs, Augustus Y. H. Ellis and another, from, a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 18th day of June, 1904, upon the decision of the court, rendered after a trial at the Westchester Special Term, adjudging the defendant to have a right of way over the plaintiffs’ property.

<p>Appeal by the defendants, Anna Anderson 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 Kings on the 3d day of May, 1904, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling the demurrer interposed by the defendant Anna Anderson to the plaintiff’s complaint.</p>

Appeal by the plaintiff, Michael TIaslin, 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 11th day of December, 1903, 'upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term.

Appeal by the plaintiff, Emma L. B. Mott, from.au interlocutory judgment, of the Supreme Court in favor of the defendant, entered m the office of the clerk of the county of Westchester on the 5th day of March, 1904, upon the decision of the court, rendered: after a trial at the Westchester Special Term, overruling the plaintiff’s ■ demurrer to the first, second, third, fourth and fifth separate defenses. contained in the defendant’s answer. ,

<p>Wallabout Market lands in Brooklyn — they are held under a trust for public use for man ket purposes — they cannot be leased fon■ the purpose- of a slaughter house — it would violate the New York Sanitary Code.</p> <p>The Wallabout Market lands in the borough of Brooklyn were acquired by the city of Brooklyn from the United States under the authority of chapter 446 of the Laws of 1890, as amended by chapter 319 of the Laws of 1893, which provided, “said land to be purchased and acquired for the purposes of a public market and the business thereunto appertaining. The said city of Brooklyn is authorized to erect and to maintain a public market on said lands or so much thereof as may be purchased or acquired as aforesaid, and also in connection with such public market for market purposes to construct such canals, basins, docks and piers on said lands or so much thereof as may be purchased and acquired as aforesaid.”</p> <p>The act of Congress authorizing the sale empowered the Secretary of the Navy to sell and convey the property “ for market purposes, and for slips, canals, aud piers, and other public works, in connection with such market purposes,” and the habendum clause of the deed of conveyance expressly declared that the city of Brooklyn should take the grant for such.purposes.</p> <p>Meld, that the Wallabout Market lands must be deemed to be. held by the city of New York as the successor of the city of Brooklyn under a trust for public use for market purposes only; that the appropriation of any portion thereof for the erection and maintenance of a slaughter house thereon was not a market purpose within the meaning of the deed of conveyance or of the Federal or State statutes relating to the market lands;</p> <p>That a lease of any portion of the market lands by-the municipal authorities for use as a slaughter house was an illegal official act which a taxpayer was entitled to prevent by injunction;</p> <p>That, aside from the restriction on the use to which the market lands could be applied, the erection of an abattoir on a portion thereof was illegal under section 83 of the Sanitary Code of the city of New York, which proviáes that no person shall kill or dress any animal or meat in any market.</p>

Appeal by the defendant, C. Albert Jacob, doing business under the name and firm of Jacob Brothers, 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 6th day of June, 1904, upon the decision, of the court rendered after a trial before the court without a. jury at the Kings County Trial Term.

<p>Negligence — injury from tripping on the stairs of an apartment house on a worn caipet — evidence as to care —failure to light the hall gas.</p> <p>In an- action brought to recover damages for personal injuries sustained by the plaintiff, who resided in an apartment house owned by the defendant, it appeared that while the plaintiff was descending the stairway used by all of the tenants, on a very dark night when there were no lights in the hallway, she tripped and fell because of the defective condition of the carpet covering the stairway. The plaintiff testified: “I knew the condition of the carpet and as there were no lights I came down very, very carefully, picked my way, and kept my left hand on the bannister all the way down until I tripped."</p> <p>Held, that a judgment entered upon a verdict in favor of the plaintiff should be affirmed;</p> <p>That the evidence was sufficient to support a finding that the plaintiff had exercised the care of an ordinarily prudent person;</p> <p>That her failure to light the gas in the hall before she attempted to descend the stairs did not render her guilty of contributory negligence as matter of law.</p> <p>Semble, that if the jury had imputed negligence to the plaintiff on account of her failure to light the gas in the hall before attempting to descend, the court would not interfere with such finding.</p>

Appeal by the defendant, the Queen Insurance Company of America, 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 30tli day of November, 1903, upon the verdict of a jury for $6,500, and also from an order entered in said clerk’s office on the 28th day of November, 1903, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, John Crispi, from an order of the Court of Special Sessions of the second division of the city of Hew York, borough of Queens, entered in the office of the clerk of said ■court on the 13th day of December, 1901, increasing the amount directed to be paid by the defendant under an order of filiation theretofore made in the action.

Appeal by the defendants, John B. Heidt and others, as' executors of and trustees under the last will and testament of Louis Heidt, deceased, from a judgment of the Supreme Court ill favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 21st day of June, 1904, upon the verdict of a jury, rendered by direction of the court after a trial at the Kings County Trial Term.

Appeal by the defendants, Rudolph A. Witthaus and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rockland on the 9th day of July, 1904, upon the decision of the court, rendered after a trial at the Rockland Trial Term, a jury having been waived.

Appeal by the defendant, George 0. Tilvou, 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 16th day of July, 1904, granting an injunction pendente lite.

Appeal by the defendants, Daniel F. Cooney and others, from a judgment of the Supreme Court in favor of ’ the plaintiff and the defendant Prindle Engineering Company, entered in' the office of the clerk of the county of Kings on the 3d day of May, 1904, upon the decision of the court, rendered after a trial at the Kings County Special Term, directing a sale of certain premises in the above-entitled .foreclosure action.

Appeal by the defendant, the Interborough Rapid Transit Company, from a judgment of the Municipal Court of the city of New York in favor of the plaintiff, entered on the 8th day of July, 1904, upon the verdict of a jury for $500. ■

Appeal by the defendants, Patrick J. Carlin and others, doing business as copartners as P. J..Carlin & Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Nassau on the 29tli day of September, 1904,. upon the verdict of a jury rendered after, a trial at the Nassau Trial Term.

Appeal by the defendant, James E. Dietz, 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 11th day of April, 1904, upon the decision of the court, rendered after a trial at the Kings County Special Term, directing the specific performance of a contract for the conveyance of real estate.

<p> Copartnership construction of an extension thereof. </p> <p>Frederick Marx and Frederick Eawolle, who had been copartners since 1870, .in 19Ó0 executed articles providing for a continuance of the partnership until 1905. The 14th section of the articles of copartnership provided as follows: “The death of both of the parties hereto before January 1st, 1905, shall not operate as a dissolution of said copartnership, ¡but the same shall be carried on until the 1st day of January; 1905, under the exclusive control and direction of George F. Henry, Henry Calder and such other person or persons as may be appointed by the legal representatives of the parties, but without other control or interference by the executors, administrators or legal representatives of either of the parties.” ■</p> <p>January 31, 1901, the partners subscribed an agreement written at the foot of the articles of copartnership, which agreement provided as follows: “the foregoing agreement -is hereby extended for. the further term of one year, .so that the same shall not expire until January 1st, 1906.”</p> <p>Held, that the agreement of -extension applied to the entire articles of copartnership; including the 14th section thereof relative to the continuance of the copartnership in case -of the death of the partners during the term, and that it did not apply solely to section 2 of the articles of copartnership, which provided: “The said copartnership shall recommence on the first day of January, 1900, ■ and shall continue for five (5) years until January 1st, 1905, and for such • further - period as the said parties -may fix 'by their agreement in writing endorsed hereon; ”</p> <p>That this construction was strengthened by the fact that in October, J901, the partners executed an instrument reading, in part, as follows: “The Agreement of Copartnership between the undersigned, dated May 19th, 1900, and extended on January 31st, 1901, is hereby modified and amended as follows,” and by the further fact that the will of Marx recited as follows: “ A copartnership has existed for more than thirty years between myself and Frederick Eawolle under the firm name -of Marx & Eawolle, which has lately been renewed for a further term, and in order that our partnership agreement and every modification thereof -and any agreement relating thereto may have full force, I hereby direct my said executors in all respects' to carry out the provisions of the said agreement so far as the same may be legally done.”</p>

<p>Appeal by Edward D. W. Langley, as grantee under a certain deed, etc., and as residuary legatee under the last will and testament of Samuel Perry Skinner, deceased, from an order of the Surrogate's Court of the county of Westchester, entered in said Surrogate’s Court on the 7th day of January, 1905, affirming a decree theretofore entered in said court fixing the taxable transfer tax upon the estate of Samuel Perry Skinner, deceased.</p>

<p>JfegVigence—injury from stepping into a coal hole— liability of the owner, who had moved out of the house while repairs were being made by a contractor—presumption after twenty years that the coal hole was authorized.</p> <p>A woman having a life estate in a house and lot, in the sidewalk in front of which there had been maintained for upwards of twenty years a coal hole covered by an iron cap fastened from the inside with a chain and bolt, entered into a contract with one Olsen for the repairing and remodeling of the house. She moved out of the house for the sole purpose of enabling the repairs to he made, but, before doing so, ascertained by personal inspection that the cover of the coal hole was properly fastened. During the progress of the repairs . the contractor used the coal hole for the purpose of taking materials from the street into the basement of the house. On one occasion, after such User, he neglected to properly fasten the cover of the coal hole,. in consequence of which the cover came off when stepped upon by a pedestrian, causing the pedestrian to sustain personal injuries. The life tenant had no knowledge of the contractor’s use of the coal hole, and during the progress of the repairs made no inspection or examination of the cover of the coal hole to ascertain whether it was fastened.</p> <p>Held, that it could not be said, as matter of law, that the life tenant was not liable for the injuries sustained by the pedestrian;</p> <p>That the coal hole having existed for more than twenty years, it would be presumed that it was constructed and maintained in the sidewalk by permission of the proper authorities; '</p> <p>That the privilege enjoyed by the; life tenant of maintaining the coal hole carried with it the special duty of keeping such coal hole in a safe condition;</p> <p>That the possession given by the life tenant to the contractor did not relieve the life tenant from the duty, during the progress of the repairs, of using reasonable diligence to keep the coal hole and its cover in a suitable and safe condition for the public to walk upon as part of the sidewalk;</p> <p>That the' question whether the life tenant did or did not exercise the required ■ degree of diligence was one of fact for the jury.</p>

Appeal by the defendant, Peter W. Rouss, as executor, etc., of Charles Broadway Rouss, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of .the county of Queens on the 14th day of December, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 2d day of December, 1903, denying the defendant's motion for a new trial made upon the minutes.

<p>Common.carrier — when the mere delivery, of a receipt limiting its liability for goods does not effect that result.</p> <p>Where the owner of a dress- suit case intrusts it. to the servant of another for delivery to an express company for carriage, and, upon such delivery, the expfess company hands to the person from whom it receives the dress'suit case a rédeipt therefor without informing her of the contents of such receiptor making any inquiry as to the value of the dress suit case, the liability of the • express company is not limited by a provision in the.receipt, which the servant destroyed without reading it, providing that in the event of the loss of property, the value of which had not been given, the company should not be liable beyond the sum of fifty dollars.</p>

<p>Certiorari issued out of the Supreme Court and attested on the 29th day of December, 1903, directed to Francis Y. Greene, as commissioner of police of the police department of the city of New York, commanding him to certify and return to the office of the clerk of the county of Kings all and singular his proceedings had in relation to the removal of the relator from the police force of the police department of the city of New York.</p>

Appeal by the plaintiff, Isaac Tanzsheim, from an order of the County Court of Kings county, entered in the office of the clerk of the county of Kings on the 3d day of March, 1905, staying-all proceedings herein until the payment by the plaintiff of costs recovered by the defendant in a former action.

Appeal by the petitioners, Henry Dusenbery and others, from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 24tli day of February, 1904, dismissing the appellants’ petition for a sale of the real property of Teresa Cody, deceased, for the payment of her debts.

Appeal by the defendant, Mattie D. Johnston, from an order of the County Court of Kings county, entered in the office of the clerk of the county of Kings on the 3d day of March, 1905, denying the said defendant’s motion to modify a judgment theretofore entered in the action by striking out an additional allowance awarded the plaintiff.

Appeal by Edward L. Van Auken, as administrator, etc., of David Van Auken, deceased, from a judgment of the Supreme Court in favor of Charles B. Tyndall, entered in the office of the clerk of the county of Westchester on the lltli day of April, 1904, upon the report of a referee to whom was referred a disputed- claim of Charles B. Tyndall against the estate of Alanson Van Auken, deceased.

Appeal by the petitioner, the Brooklyn, Queens County and Suburban 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 18th day of July, 1904, denying the petitioner’s application for a peremptory writ' of mandamus.

Appeal by the defendant, the Standard Distilling and Distributing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 21st day of January, 1904, upon the decision of the court rendered after a trial before the court without a' jury at the Queens County Trial Term.

Appeal by the defendant, The Whitman 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 16th day of March, 1905, denying the defendant’s motion to vacate an order theretofore made in the action for the examination before trial of Martin I. Whitman, the vicé-president and treasurer of the defendant corporation.

Appeal by the petitioner, James R.'Cullen, 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 16th day of March, 1905, denying the petitioner’s motion for a peremptory writ ■of mandamus.

Appeal by William H. S. Smith and others, the assessors of the town of Hempstead, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Nassau on the 10th day of February, 1905, reducing the assessment of $200,000 upon the lands of the Long Beach Land Company to $50,000.

Appeal by the defendant, The Brooklyn Real Estate Exchange, Limited, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 26th day of May, 1904, upon the verdict of a jury for $900, and also from an order entered in said clerk’s office on the 15th day of June, 1904, denying the defendant’s motion for a new trial made Upon the minutes.

Appeal by the.defendant, The City of Poughkeepsie, from a judgment of the Supreme Court in favor of the plaintiff, entered in. the office of the. clerk .of the county of Dutchess on the 27th day of September, 1904, upon the decision of the court, rendered after a trial at the Dutchess County Trial Term, a jury having been waived,-with notice, of an intention to bring up for; review upon sueh appeal an .order-rpade..at the.Kings County Special Term and' entered in the office…

<p>Appeal By the plaintiff, William Gf. Jones, 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 22d day of March, 1905, vacating a warrant of attachment theretofore granted against the property of the defendant Davis, and setting aside an attempted service of the summons under an order of publication.</p>

<p>Appeal by the petitioner, The City of New York, from an order of the Supreme Court, made at- the Westchester Special Term and entered in the office'of the clerk of the county of Westchester on the 2d day of August, 1904, dismissing a writ of certiorari theretofore.issued upon the application, of the petitioner, and also from a judgment in favor of the assessors of the town of Cortlandt, entered in said clerk’s office on the 2d day of August, 1904, pursuant tp said order.</p>

Appeal by the defendant, Burdett Bishopp, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Madison on the 1st day of August, 1904, upon the decision of the court, rendered after a trial at the Madison Special Term, overruling the defend■ant’s demurrer to the second cause- of action in the plaintiff’s amended complaint. •• The plaintiff brought this action in the Supreme Court to recover on two…

Appeal by the relator, Frank Fellows, from a judgment of the' Supreme Court in favor of the deféndants, entered -in -the office ■ of the clerk of the county of Columbia on-the 25th day of October, 1904, upon the report of a referee denying the relator’s application for a peremptory writ of mandamus.

Appeal by the defendant, John W. Burr, 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 4th day of June, 1903, upon the verdict of a jury for $175, and also from an order entered in said'clerk’s office on the 16th day of June, 1903, denying the defendant’s motion for a new trial made upon the minutes. The defendant was, in 1901, a justice of the peace of the city of Gloversville.

Appeal by the defendants, Henry E. Wieber and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Ulster on the 14th day of February, 1905, upon the verdict of a jury for $5,000, and also from an order bearing date the 10th day of February, 1905, and entered in said cleric’s office, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the plaintiff, William R. Weed, who brings this suit on behalf of himself and all other stockholders of the First Rational Bank of Saratoga Springs, R. Y., situated similarly with himself, 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, Saratoga on the 1st day of February, 1905, requiring the plaintiff to serve an amended complaint separately stating and numbering the facts…

Appeal by William C. Hamilton and another, purchasers upon a sale under a decree in a partition action, from an order of the Supreme Court, made at the Ulster Special Term and entered in the office of the clerk of the county of Ulster on the 22d day of April, 1905, denying the appellants’ motion to be relieved from their purchase at such sale.

Appeal by the defendant, the Village of Potsdam, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of St. Lawrence on the 9th day of January, 1905, upon the verdict of a jury for $700, rendered after a trial at the St. Lawrence Trial Term. The action is brought to recover damages for an injury which the plaintiff sustained through a walk claimed to have been defective in the defendant village.

Appeal by the defendant, Henry Cox, from a judgment of the County Court of St. Lawrence county in favor of the plaintiff entered in the' office of the clerk of the county of St.. Lawrence oil the 28th day of November, 1904, upon the special verdict of a jury convicting the defendant, of a violation of the Liquor Tax Law, and also from an order made during the .trial denying the defendant’s, motion for a new trial and in arrest of judgment.

Appeal by the defendant, the Rensselaer County Mutual Fire Insurance Company, from a judgment -of the County Court of Rensselaer county in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 8tli day of December, 1904, upon the verdict of a jury, and also from an order entered in •said clerk’s office on the 8tli day of December, 1904, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Sarah L. Smith, from a judgment of the Supreme Court in favor of the defendants William II.

<p>Appeal by Mary J. Arnton from a decree of the Surrogate’s Court of the county of Franklin, entered in said Surrogate’s Court on the 16th day of June, 1904, settling the. account of John J. Arnton, as one of the executors under the will of Thomas S. Arnton, deceased.</p>

Appeal by the defendants,' William N. Coler, Sr., and others, from a judgment of the Supreme Court in favor of the plaintiff,, entered in the office of the clerk of the county of-Clinton on the 18th day of November, 1904, upon the verdict of a jury, and also-from an order entered in said clerk’s office on the 17th day of November, 1904, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by Emma L..Strevell from a decree of the Surrogate’s Court of the county of Albany, entered in said Surrogate’s Court on the 27th day of January, 1905, disallowing the appellant’s claim against the estate of Catherine Jones, deceased.

Appeal by the plaintiff, the Schenectady Contracting Company, from an interlocutory judgment of the Supreme Court in favor of the defendant Guy M. Gest, entered in the office of the clerk of the county of Schenectady on the 8th day of November, 1904, upon an order made at the Schenectady Special Term and entered in said clerk’s office on the 12th day of November, 1904, sustaining the demurrer of the defendant Gest to the plaintiff’s complaint, and also (as stated in the…

Appeal by the petitioner, Henry C. Soop, as agent and attorney of the estate of Thomas Cornell, from an order of the County Court of Ulster county, entered in the office of the clerk of the county of Ulster on the 30th day of March, 1905, reversing a final order of the City Court of the city of Kingston in summary proceedings instituted by a landlord to recover possession of demised real estate,.

Appeal by the defendant, The Town of Denning, from a judgment' of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Ulster on the 4th day of May, 1904, upon the verdict of a jury for $250, and also from an order bearing date the 14th day of April, 1904, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the - defendant, Oliver Lamora, from a judgment of the County Court of- Franklin county in favor of the plaintiff, entered in the office of the clerk of the county of Franklin on the 27th day of December, 1904, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office in December, 1904, denying the defendant’s motion for a new trial made upon the minutes. ■

<p>Appeal by the People of the State of New York and by the relator, Michael J. Callanan, from an order of the Supreme Court, made at the St. Lawrence Special Term and entered in the office of the clerk of the county of Essex on the 8th day of April, 1905, denying the relator’s motion for a peremptory writ of mandamus.</p>

Appeal by the defendant, the Security Mutual Life Insurance Company, from a judgment, of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 22d day of September, 1904, upon the verdict of a jury, and also from an order entered in said clerk’s office .on the 21st day of September, 1904, denying the defendant’s motion for a new trial made upon-the minutes.

.Appeal by the defendant, The Village of Liberty, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Sullivan on the 8th.day of March, 1904, upon the decision of the court rendered after a trial at the Sullivan Trial Term, certain questions having been submitted to a jury, and also from an order made during the trial and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon…

Appeal by the petitioners, Constant Webster- and others, as commissioners of highways of the town of Chatham, Columbia county, H. Y.,. from an order-of the Supreme Court, made at the Rensselaer Special Term and entered in the office of the clerk of the county of Columbia on the 20th day of April, 1904, confirming the report of a referee.

<p>Appeal by the plaintiff, .Margaret Brown, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the countytof' Washington on the 3d day of November, 1904 (as amended by an order entered in said clerk’s office on the 15th day of February, 1905), upon the decision of the court, rendered after a trial at the Saratoga Special Term, overruling the plaintiff’s demurrer to the third defense in the defendant’s amended answer.</p>

<p>Mortgage — what services, ren'deréd aff&i'd a sufficient consideration for its satisfaction — effect of the receipt of interest after the execution of a satisfaction piece. .</p> <p>After the- death of Lti'cy B. Potter there was-.fotmd among her papers’ a bond and mortgage executed by Evá A¡ Mabeé. to the decedent, together with a signed and- witnessed, but unacknowledged! satisfaction of the mortgage. On the back of the bond in the decedent’s handwriting and bearing the same date as ' the satisfaction was the following entry: “ I hereby certify that 1 have received full' satisfaction, for the within bond, and hereby reléasé.'th'e sáid Eva A. Mubée ' from any and all obligations bécátise of the Same. .</p> <p>“ December mh, 1896.. LUCY B. POTTER.”</p> <p>No attempt was made to explain the circumstances under which the indorsement on the back of the mortgage was made, but it appeared that the said Eva A. Mabeé had rendered valuable services to-the decedent in her lifetime, for which ' the decedent had expressed ah intention to pay.</p> <p>Meld, that although the value of such services was only $300, while the amount of the mortgage was $750, such services constituted a sufficient consideration for the satisfaction of the.mortgage, and that it should be determined that the mortgage -had been fully paid and satisfied; .</p> <p>That the execution of the formal satisfaction was not inconsistent with the claim that the mortgage had actually been satisfied, as the object Of the formal satisfaction may have been simply to complete the record;</p> <p>That the fact that the bond bore an indorsement stating that interest had been paid up to April 1, 1900, a date subsequent to the date of the; satisfaction, and that a formal satisfaction had been executed but-not delivered, did not establish that there was nó intention on the part, of the mortgagee to satisfy the mortgage.</p> <p>Parker, P. J., and Smith, J., dissented.</p>

<p>Appeal by the People of the State of Mew York from an order made by the recorder of the city of Albany, Mew York, on the return of a writ of habeas corpus, and entered in the office of the clerk of the connty of Albany on the 27th day of December, 1904, discharging the petitioner William B. Bartholomew from the custody of the custodian of the Albany Connty Penitentiary. .</p>

Appeal by the defendant, the Boston and Maine Railroad, from an order of the Supreme Court, made at the Warren Special Term and entered in the office of the clerk of the county of Warren on the 25th day of February, 1905, continuing a temporary injunction pendente lite.

Appeal by the defendant, The Village of Oneida, from an order of the Supreme Court, made at the Madison Special Term and entered in the office of the clerk of the county of Madison on the 27th day of September, 1904, setting aside a nonsuit and granting the plaintiff’s motion for a new trial of the action.

Appeal by the relator, Eugene A. Andrus, from an order of the Supreme Court, made at the Washington Special Term and entered in the office of the clerk of the county of Saratoga on the 14th day of March, 1905, directing that upon the payment by the respondent to the relator of the sum of sixty-seven cents the relator’s motion for a peremptory writ of mandamus be denied, and in default of such payment within ten days that a mandamus issue requiring the respondent at its next…

Appeal by the defendant, Richard K. Anderson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 11th day of January, 190,5, upon the decision of the court, rendered after a trial before the court without a jury at the Saratoga Trial Term, granting damages for a trespass and restraining the continuance thereof.

Appeal by the plaintiff, John Delahunty, in both of the above-entitled actions, 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 19th day of May, 1905, denying-the plaintiff’s motion to vacate an order bearing date the 8th day of May, 1905, staying proceedings upon the part of the plaintiff in. action No. 1 until the determination of aii appeal from an order denying the defendant’s…

Appeal by the defendant, Emil Albert Widman, from an order of the Supreme Court, made at' the New York Special Term and entered in the office'of the clerk of the county of New York on the 22d day of May, 1905, granting the plaintiff’s motion to refer the issues in the above-entitled action and appointing a referee.

Appeal by the defendant, William 0. Dewey, as next relative to Ella- F. Dewey, one of the defendants in the action, 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 25th day of May, 1905, denying the appellant’s motion for an order appointing a proper- person to appear in this action for the purpose of protecting thé interests of said defendant Ella F. Dewey, an alleged insane…

Appeal by the plaintiff, Lazanis Levy, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 9th day of January, 3905, upon the dismissal of the complaint by direction of the. court after a trial at the New York Trial Term, and also from an order entered in said clerk’s-effice on the 27th day of January, 1905, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Union .Railway Company of New York City, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 9th day of December, 1904, upon the verdict of a jury for $750, and also from an order entered in said clerk’s office on the 20th day of December, 1904, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Cornelius J. Earley, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of March, 1905.

<p>Appeal by the defendant, James B. Ilaggin, from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on. the 29th day of May, 1905, denying thé defendant’s, motion to compel the plaintiff to separately state and. number the alleged causes of action,</p>

<p>Mechanic’s lien — the filing of, by a sub-contractor, is an essential element of a (cause of action by him against the owner — what notice of lien is insufficient,</p> <p>A notice of mechanic’s lien which states, “ The labor performed and to be performed and the materials furnished and to be furnished, consists* of .electrical apparatus, wiring and equipment and labor of Nos. 149 West 125th Street and 152 to 158 West 126th Street, Borough of Manhattan, New York City, and the agreed price and value thereof is Four thousand five hundred and ninety-four 50/100 dollars (§4,594.50),’’ is insufficient.</p> <p>In an action brought to foreclose a mechanic’s lien filed by a sub-contractor, a motion to dismiss the complaint as to the owner, because of the plaintiff’s failure to prove a cause of action, presents the question whether á proper and sufficient notice of lien was filed by the plaintiff, as the filing of such a notice is one of the essential elements of the cause of action.</p>

Appeal by the defendants, Arthur B. Swezey and others, from -an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of May, 1905, denying the said defendants’ motion to open a default.

Appeal, by the defendant, the Erie Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Sew York on the 23d day of December, 1904, upon the verdict of a jury for $3,500, and also from an order entered in said clerk’s office on the 29th day of December, 1904, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 5th day of January, 1904, upon the verdict of a jury for $12,500, and also from an order entered in said clerk’s office on the 11th day of January, 1904, denying the said defendant’s motion for a new trial made upon the minutes.

<p>Lien of a hotelkeeper — it extends to a piano delivered to the guest under a conditional contract of sale, by which the title remains in the vendor until it is paid for.</p> <p>A hotelkeeper has, under the.'common law, and independent of section 71 of the Lien Law (Laws of 1897, chap. 418, as amd. by Laws of' 1899, chap. 880), a lien, for the unpaid hotel bill of a guest, upon a piano in the possession of the guest at the hotel under a conditional contract of sale providing that the title thereto should remain in the vendor until the purchase price thereof had been fully paid, and this lien is superior to the right of the vendor of the piano to retake the same upon a breach by the guest of the conditions of the contract of sale.</p> <p>O’Brien, P. J., and Patterson, J., dissented.</p>

<p>Recovery for services as an architect — what evidence does not establish an express agreement of employment — when a recovery on a quantum meruit is improper.</p> <p>The complaint in an action brought to recover for services rendered by the plaintiff, an architect, to the defendants’ testator in the preparation of plans for a building to be erected upon á lot owned by the defendants’ testator, alleged that the testator employed and retained the plaintiff to prepare such plans. Upon the trial the only evidence offered to sustain such allegation of employment was that the plaintiff had prepared certain preliminary sketches for the erection of a building upon the lot owned by the defendants’ testator; that these sketches or plans were in the possession of the testator for some time and were subsequently returned to the plaintiff; that the testator told a person, who inquired the price of the land in question, that he had had' plans prepared for a building on the lot by the plaintiff; that he liked the plans very much and approved of them; that, according to such plans, the property would pay on a valuation of §1,000,000.</p> <p>Held,, that the trial court properly ruled that the evidence was insufficient to sustain an express agreement of employment as alleged in the complaint;</p> <p>That it was improper for the trial court to charge that even though no contract of employment were proved, if the defendants’ testator received the benefit of the plaintiff’s work, the latter might recover upon a quantum meruit ;</p> <p>That, even if the charge was correct as an abstract proposition of law, it was improper as applied to the case at bar, as there was no evidence that the defendants’ testator ever accepted or used the plans or that they were ever of any value to him.</p>

Appeal by the defendants, The. Hudson Realty Company and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 24th day of May, 1905, granting an injunction pendente Hie.

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 20th day of October, 1904, upon the verdict of á jury for $1,000, and also from an order entered in said clerk’s office on the 13th day of October, 1904, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, The Oity of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the loth day of October, 1904, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 4th day of November, 1904, denying the defendant’s motion for a new trial made upon the minutes. ■</p>

<p>Appeal by the defendants, the Urban Contracting and Heating Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of New York on the 21st day of December, 1904, upon the verdict of a jury for $11,000, and also by each defendant from an order denying such defendant’s motion for a new trial made upon the minutes, which orders were entered in said clerk’s office respectively on the 20th and 21st days of December, 1904.</p>

Appeal by the defendant, The Globe and Rutgers Fire Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 25th day of October, 1904, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 18th day of October, 1904, denying the defendant’s motion for a new tidal made upon the minutes.

Appeal by the defendant,'the Universal Tobacco Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the cleric of the county of New York on the 24th day- of December, 1904, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27th day of December, 1904, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, The Schwab Manufacturing Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 6tli day of December, 1904, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 15th day of December, 1904, denying the plaintiff’s motion for a new trial made Upon the minutes.

<p>Waiver, by acceptance of costs given by an order, of the right to attack it — amendment of a complaint allowing a new defense barred by the Statute of Limitations to be set up -r- what acknowledgment of a debt is sufficient under section 395 of the Code of Civil Procedure.</p> <p>Where the court, at Special- Term, as a condition of granting a motion for an-amendment of the complaint, which amendment essentially changes the cause of action set up in the original complaint, requires the plaintiff to pay to the. defendant the'taxable costs of the action to date, the defendant, by accepting such costs and not taking a direct appeal from the order, will be deemed to have acquiesced in such order, and, upon an appeal from a judgment rendered against her after a trial of the action under the' amended pleading, she cannot, attack the order, which she has brought up for review by a statement of her intention so to do in the notice of appeal.</p> <p>• Quaere, whether the court may allow the complaint in an action to be amended, by setting up therein a cause of action barred by the Statute of Limitations, provided it does not deprive the defendant of her right to plead the Statute of Limitations as a defense.</p> <p>The following letter, written in response to a request made by one Serrell upon one Forbes for the-payment of a bill, to wit:</p> <p>“ Dear Mr. Serrell.— Yours of the 8th inst. received and will have my earnest attention. I consider myself responsible for this bill of Mr. Sachs.</p> <p>“Yours truly,</p> <p>“FRANCIS FORBES,"'</p> <p>is sufficient, under section 395 of the Code of Civil Procedure, to take the debt out of the operation of the Statute of Limitations, where it appears that, notwithstanding the language of the letter, Forbes was not a mere guarantor of a debt due from Sachs, but was himself primarily liable therefor. i</p> <p>Ingraham, J., dissented.</p>

• Appeal by the plaintiff, Cecelia W. Yalentini, from, a judgment of the Supreme Court 'in favor of the defendant, entered in the office of the clerk of the county of New York on the 19th day of November, 1904, upon the dismissal of the complaint by direction ■of the court after.a trial at the New York Trial Term, and also from ah order entered in said clerk’s office on the 15th day of November, 1904, directing the dismissal of the complaint upon the merits.

<p>Appeal by the plaintiff, Gerd Buscher, as administrator, etc., of John T. Buscher, infant, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 21st day of January, 1905, upon the dismissal .of the complaint by direction of the court after a trial at the- New York Trial Term, and also from an order entered in said clerk’s office on the ■ 20th day of January, 1905, denying the plaintiff’s motion for -a new trial made upon the minutes.</p>

<p>Mortgage foreclosure — the amount paid for an assignment of a mortgage and the motive inducing its purchase — when material—merger at law and in equity — con• veyance to defeat an action for specific performance and a foreclosure under an assignment of a mortgage taken for the same purpose.</p> <p>In an action to foreclose a mortgage brought by a person holding, under a duly executed assignment, the legal title thereto, the question whether the plaintiff paid value for the assignment and as to the motive which actuated the making of the assignment or the motive which actuated the commencement of the foreclosure action is, as against the mortgagor, a matter of no consequence, for the reason that he is obliged to pay the mortgage, and that payment to the plaintiff will discharge such obligation.</p> <p>The rule, however, is different where the rights of creditors or those of persons having legitimate claims against the property which would be injuriously affected by the mortgage intervene, particularly where a person who has been guilty of fraud would profit by the enforcement of the mortgage.</p> <p>At law it is the rule, to which there are no exceptions, that where the lesser and larger titles unite in the same owner, the former is swallowed up in the latter.</p> <p>In equity, however, if it was the intention of the owner to keep the lesser title alive, and this will result in the promotion of justice and will not prejudice the rights of third parties, the merger will be deemed not to have taken place.</p> <p>In an action brought to foreclose a mortgage it appeared that the mortgage was for $1,000, and that prior to the plaintiff’s connection therewith parties named Schoenfeld had a $500 interest therein, and a party named Fuchs the remaining $500 interest therein; that the owner of the equity of redemption, for the purpose of defeating the claim of a contract vendee of the premises who had brought an action to compel specific performance of the contract, conveyed the premises to a third party and then procured an assignment to the plaintiff of the interest of the Schoenfelds in the mortgage, such owner paying the consideration for the assignment; that the plaintiff then, after obtaining written authority from Fuchs, the owner of the remaining §500 interest in the mortgage, brought the foreclosure action, claiming the entire amount to be due.</p> <p>JBeld, that as against the contract vendee of the premises, who was made a defendant in the foreclosure action, the plaintiff was only entitled to a judgment o£ foreclosure to the extent of the $500 interest of Fuchs in the mortgage and was not entitled to a foreclosure of the mortgage with respect to the remaining §500 interest in the mortgage which had been originally owned by the Schoenfelds.</p>

<p>yendor’s lien on real property — enforced where property contracted to be sold subject to a certain mortgage is conveyed subject to a mortgage for a less amount — subrogation.</p> <p>A contract for the sale of land fixed the purchase price at the sum of $101,000 to be paid as follows: $1,500 in cash upon the execution and delivery of the contract, $6,500 cash upon the delivery of the deed, the remaining $93,000 being represented by certain mortgages covering the premises contracted to be sold. One of such mortgages was a third mortgage of $18,000 which provided that $3,000 of the principal thereof should become due and payable upon a sale of the property. The indebtedness represented by such third mortgage was also secured by a collateral mortgage upon other premises. ■ This collateral mortgage contained a provision that when $4,000 should have been paid on account of the principal mortgage the collateral mortgage should be canceled,</p> <p>After the execution of the contract, but before the closing of the sale, the $13,000 mortgage was purchased by the wife of one of the vendees. In the meantime, the vendors had also contracted to sell the property incumbered by the collateral mortgage free and clear of such collateral mortgage. On the day fixed for closing the first-mentioned contract of sale, the vendee, whose wife had pur. chased the $13,000 mortgage, acting in the interest of such wife, refused to deliver a release of the collateral mortgage upon payment of the $3,000 from the vendees and the sum of $1,000 from the vendors, and to execute a writing subrogating the vendors to an interest of $1,000 in the $13,000 mortgage. Thereupon the vendors paid $1,000 to the owner of the $13,000 mortgage, and her husband then delivered a release of the collateral mortgage. The contract was then closed, with the result that the vendees only paid in cash and by the assumption of mortgages $100,000 instead of the $101,000 which they had agreed to pay.</p> <p>■Held, that the vendors had a vendor’s lien upon the property conveyed for the sum of $1,000 exacted as a condition of executing a release of the collateral mortgage, as such $1,000 was essentially a part of the purchase price which the vendees were bound to pay;</p> <p>That the delivery of the deed to the vendees did not operate as a waiver of the right of the vendors to demand payment of the entire purchase price.</p> <p>Quaere, whether the vendors had a remedy by way of subrogation or not.</p>

<p>Appeal by the defendant, George S. Ingraham, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 9th day of May, 1905, enjoining the defendants during the pendency of the action from selling certain property belonging to the National Salt Company or its receivers, or from interfering with property in the possession of the plaintiffs.</p> <p>The motion was made to procure an injunction pendente lite, restraining George S. Ingraham, a judgment creditor of the National Salt Company, from selling or attempting to sell, by means of a levy made by the United States marshal, under a certain attachment issued out of the United States Circuit Court, certain real estate situate in Wyoming county in the State of New York, the title to which is in the. receivers of the National Salt Company. The National Salt Company is a foreign corporation organized under the laws of the State of New Jersey.,</p> <p>On the 29th day of September, 1902, the plaintiffs were appointed permanent receivers of said National Salt Company by the Court of Chancery of the State of New Jersey, that court having jurisdiction of the parties and the subject-matter of the action. On the 1st day of October, 1902, an order was made by the Supreme-Court of the State of New York appointing the plaintiffs receivers of the property and assets of the National Salt Company in the State of New York, with full power to take into their possession all property of said company within this State, said appointment being ancillary to the appointment of the receivers of the Court of Chancery of the State of New Jersey. The receivers qualified and took actual possession of the real estate of the National Salt Cotnpany in tlie State of New York and continued its business. On the 14th day of March, 1904, this court duly authorized said receivers to sell at public auction the real estate of the National Salt Company, which included the real estate now advertised for. sale by the'United States marshal as hereinafter set forth. ■ Said order contains a provision preserving liens, which is as follows: “ Ordered that the sale of said, property shall be made free and clear of all encumbrances, the proceeds of the sale thereof to stand in the place and stead of the property and the lien of such encumbrances to attach to such proceeds.”</p> <p>The property was duly advertised, and on the 25tli day of May, 1904, was sold at public auction, and on the 21 th day of July, 1904, an order was made confirming said sale. Under the terms of this order, title was not to be passed until payment of the full purchase price, which, not having been fully paid,.the title still remains in. these receivers. '</p> <p>Prior to the appointment of the receivers, and on the 16th day of July, 1901, George S. Ingraham brought suit in the Supreme Court of Nassau county against the National Salt Company for $12,495, which said suit was subsequently removed to the United States Circuit Court for the eastern- district of New York. On the 6th day of November, 1901, a warrant of attachment was issued out of said United States Circuit Court- in the said suit -of Ingraham against the National Salt Company, and said warrant was filed in the office of the clerk of the United States Circuit Court for the western district of New York, in Buffalo, N. Y.; and on the-. 2d day of December, 1901, an amended notice of attachment was also filed in said clerk’s office in that city.</p> <p>Under section 915 of the United States Revised Statutes, the United States Circuit Court for the eastern district of New York, on the 16th day of October, lS'TS, adopted the Code of Civil Procedure of New York as the law under which attachments issued out of said court should be governed. Section 649 of the Code of Civil Procedure of the State of New York provides that a-levy Under a-warrant of attachment must be made upon real property by filing with the clerk of the county where it is situated a notice of the attachment. The warrant of attachment in the suit of George S. Ingraham against the National Salt Company was never filed at any time in the county clerk’s office of the county of Wyoming, said Wyoming county being the county within which the property advertised for sale by the United States marshal is situated.</p> <p>Judgment was entered in the suit of George S. Ingraham against the National Salt Company, in the United States Circuit Court, in favor of the plaintiff, and against" the defendant, on the 9th day of August, 1904, for the sum of $14,812.15. Said Ingraham at once issued his execution against the National Salt Company, and caused the United States marshal for the western district of New York to advertise for sale at public auction, on the 4th day of April, 1905, at the court house in Warsaw, county of Wyoming, the real estate set forth in the notice of sale, which real estate is part of the same real estate to which the receivers now have title, and which was the subject of the sale of May 25, 1904. The receivers then brought this action to restrain said sale as an unlawful interference with property in the possession of this court, and from the restraining ■order this appeal is taken.</p>

Appeal by the plaintiffs, Hermann Norden and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of June, 1905, vacating upon the merits a warrant of attachment theretofore granted in the action.

<p>Appeal by the defendant, Axel Estell, from a judgment of the Court of General Sessions of the Peace in and for the city and county of blew York, entered on the 26th day of October, 1904, convicting the defendant of the crime of rape in the second degree, and sentencing him to imprisonment in the State prison for the term of two years.</p>

<p>Payments — application of where tlie money of a guarantor is paid to a creditor by the principal debtor—: where the creditoi\ has knowledge that it is the guarantor’s money it must be applied to the discharge of the guarantor’s obligation.</p> <p>A creditor who receives money from his debtor has the right to apply such money upon any indebtedness of the debtor to him, in the absence of any knowledge or notice by the creditor that the money is to be otherwise applied; this is so, even-though the debtor has received such money from a third person who has guaranteed,a -portion of his indebtedness to the creditor.</p> <p>Such rule, however, doe's not apply where the creditor, when receiving the money, has knowledge that it has been delivered by the guarantor to the debtor to be applied upon the indebtedness for which the guarantor is liable. In such case the creditor has no discretion in making application of the payment, but is bound to apply it upon the guaranteed indebtedness.</p> <p>Ingraham, J., dissented.</p>

<p>Appeal by the defendants, Frank A. O’Donnel and others, as commissioners of taxes and assessments of the city of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th day of May, 1905, denying the defendants’ motion to quash a writ of certiorari theretofore issued herein.</p>

<p>Complaint in equity — motion to strike out certain allegations as irrelevant —when not granted.</p> <p>In a. suit in equity tlie pleader ds not confined with the .same degree of strictness to allegations of the material factsi alone as he is in an action at law.</p> <p>A motion made toy the defendant in an action in equity to have certain allegations stricken from the complaint as irrelevant . and redundant should be denied, where the allegations In question ,ar.e .mainly allegations of inducement and it does .not appear that the defendant is prejudiced oy their presence.</p>

<p>Judgment erroneously holding that half of a fund, of which the plaintiff was adjudgedto he entitled to the other half, belonged to one partner and not to the firm —it will he reversed. :</p> <p>The complaint in an action brought against Henry J. McCormick, Percival S. Jones and a trust company alleged that the plaintiff and the defendant Jones promoted the formation of a corporation under an agreement that the promoters’ fees should be equally divided between them; that the defendants Jones and McCormick were general law partners, but that McCormick had no interest in the promoters’ fees; that the corporation had been successfully organized and that a quantity of corporate stock which represented the promoters’ profits had been deposited with the defendant trust company and that the plaintiff was entitled to one-half of such stock.</p> <p>The trial j ustice found that the plaintiff was entitled to a one-half interest in the stock in question, but, notwithstanding that the undisputed evidence showed that the remaining one-half interest was owned by the defendants Jones and McCormick as partners, he found that the defendant McCormick had no inter- . est in the contract between the plaintiff and the defendant Jones or in the proceeds thereof.</p> <p>Meld, upon an appeal taken by the defendant McCormick, that the interlocutory judgment rendered upon the decision should be reversed, as the erroneous finding that McCormick had no interest in the one-half of the promoters’ profits, to.which the plaintiff was not entitled, might operate as a bar to McCormick’s right to share in the portion of the promoters? fees received by Jones.</p>

<p>Motion by the defendant, Percival S. Jones, for a new trial upon exceptions pursuant to section 1001 of the Code of Civil Procedure.</p> <p>Also an appeal by the defendant, Percival S. Jones, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17th day of June, 1904, upon the decision of the court, rendered .•after a trial at the New York Special Term, directing an accounting ,ahd granting other relief. '</p>

Appeal by the plaintiffs, Louis Smadbéck and another, from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 9th day of May, 1905, directing the cancellation of a lis yendens theretofore filed in the action.'

Appeal by .the defendant; Carl J. Weideman, 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 25th day of ■March, 1905, striking out as irrelevant’ redundant and scandalous the second and third defenses set up in the amended answer, and requiring the defendant to re-serve said amended answer with the portions so stricken out and omitted, and to surrender the original of…

Appeal by the defendant, Ignace Moress, 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 May, 1905, restraining the defendant, pending the determination of the action, from maintaining a certain advertising sign upon, the premises occupied by him as a tenant.

Appeal by the defendant, Isaac N. E. Alien, from that portion of a judgment of the Supreme Court which was entered in the office of the clerk of the county of New York on the 3d day of June, 1904, upon the verdict of a jury rendered by direction of the court in favor of the plaintiff and against the said defendant Allen, after a trial at the New York Trial Term.

Appeal by the defendant, Nicholas J. Hayes, as fire commissioner of the city of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 7tli day of February, 1905, denying the defendant’s motion to quash an alternative writ of mandamus theretofore issued upon the application of the relator.

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 13th day of December, 1904, upon the verdict of. a jury for $550, and also from an order entered in said clerk’s office on the 12th day of December, 1904, denying the defendants motion for'a new trial made upon the minutes.

Appeal by the defendant, Owen P. McDonald, 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 4th day.of May, 1905, granting the plaintiffs motion to strike out as' sham certain denials in the answer interposed by the defendant.

Appeal by the plaintiff, Max Bowsky, and by the defendant, Arthur F. Cosby, as receiver in proceedings supplementary to execution of Helen Dittel, 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 24th day of April, 1905, dismissing the plaintiff, Max Bowsky, from the action and discontinuing the action as to him individually, without costs, substituting in his .place as plaintiff the…

Appeal by the defendant, the Lenox Construction 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 7th day of June, 1905, denying the defendant’s motion to require the plaintiff to serve a bill of particulars.

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 2d day of May, 1904, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 29th day of April, 1904, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Robert Graves Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of New York on the 9th day of November, 1904, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 23d day of November, 1904, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Benjamin S. Wise, 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 20th day of April, 1905, granting the plaintiffs motion to strike out the separate amended answer of the said defendant.

Appeal by the defendants, Bernard J. York and others, commissioners of police,, constituting the board of police of the city of New York, from an order of tlie 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 6tli day of March, 1905, dismissing the above-entitled proceeding, and also from an order entered in said clerk's office on the 28th day of March, 1905, denying the defendants’ motion to resettle…

Appeal by the defendants, Caroline Brinley 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 6th ’ day of July, 1904, upon the decision of the court, rendered after a trial at the New York Special Term, directing the foreclosure of a mortgage and a sale of the real estate covered thereby.

Appeal by the petitioners,' Burton 0. Meighan 'and another, from an order of the Supreme Court, made at the Eew York Special Term and entered in the office of the clerk of the- county of Eew York on the 7th day of June, 1905, denying the petitioners’ application to have the amount of their compensation determined and declared a lien upon a certain fund.