Volume 107 — New York Appellate Division Reports

<p>Will— when the provision£ of a trust in famorof a life beneficiary are independent and do not depend, upon the validity-of other'provisions thereof—when the rights of parties in remainder should not be determined on, the admission of a will to probate.</p> <p>The 9th and 10th clauses of the will of a testatrix provided as follows:</p> <p>“ Ninth. I give devise and bequeath all the rest, residue and remainder of my estate, real and personal of what nature or kind soever, and wheresoever situated to my executors who shall qualify as such under the Thirteenth clause of this my will as trustees upon the following trusts:</p> <p>“ To lease- and manage the real estate, to invest and reinvest the personal estate, to collect and receive the rents, interest and income of such real and personal estate, and to pay over to my sister Susan the entire net amount of such rents, interest and income during the term of her natural life. Immediately after the death of my said sister, my said executors or the survivor of them, as such trustees, shall divide the said residuary estate (real and personal) into as many shares of equal value as will make one for each of the children then living of my nephew, Richard H. Mount and one for the-lawful issue collectively of each of the children of my said nephew (if any) who may then have died leaving such issue, and shall set apart one of such shares to each child then living, and one. to such issue collectively of. each deceased child, which shares shall be designated as the property of such parties respectively and my executors shall keep separate accounts of such respective shares.</p> <p>“My said executors as such trustees shall pay over to the children of my said nephew if then of the age of twenty-five years, otherwise on their arriving at that age, the net income of the shares so set apart to them respectively during-the period of their respective lives and after their deaths respectively they shall distribute and pay over such shares to the issue of such children respectively in equal portions per stirpes.</p> <p>“My said executors and trustees shall pay over to and distribute among the-issue of any deceased child or children of my said nephew who shall at the-death of my said sister Susan be of the age of twenty-five years, otherwise as soon as they respectively attain that age, their respective portions of the share so set apart to such issue collectively.</p> <p>“ Tenth. I order and direct that my executors or the survivors of them, as such trustees, upon completing the division of my real and personal estate as hereinbefore directed, execute and deliver to each child or other person entitled to the usé of any portion thereof a sufficient deed or declaration in writing specifying particularly the several parcels of real estate and also the personal property embraced in his or her share of my estate. ' They shall also on paying over and distributing the said shares to the persons respectively entitled thereto, execute all such deeds, conveyances and transfers of the real and personal estate as may be necessary fully to carry into effect such distributions. ” The testatrix was survived by her sister, Susan Mount, by her nephew, Richard Mount, and by two adult sons of the latter.</p> <p>Held, that the trust created for the benefit of the testatrix’s sister was valid, and, being independent of every other provision of the will and of any general plan or scheme of testamentary disposition, should be sustained independent of the validity of the other trusts;</p> <p>That if other children of Richard Mount should be born, after the death of the-testator and during the life of Susan Mount, the trusts attempted tó be created, for such after-born children would be void;</p> <p>That the decree admitting the will to probate should simply adjudge the validity of the trust, created in personal property, during the life of Susan Mount, and should not attempt to determine the validity of the. provisions contained in the-will as to the disposition to be made after the death of Susan Mount of the-personal property embraced within that trust, but that that question should be-, left for determination until her death.</p>

Appeal by the defendant, Michael McCormack, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Mew York on the 27th day of February, 190'5, upon the decision of the court, rendered after a trial at the Mew York Special Term, sustaining the plaintiff’s demurrer to each of the four separate affirmative defenses contained in the defendant’s answer.

<p>Contract to deliver stock — effect of the-stock being at the time pledged to one of the purchasers to secure the indebtedness of a third person — an adoption by the vendor of the delivery made under the pledge fulfils the contract —,a delivery to one of two joint purchasers■ is good.</p> <p>One Fuehrman made a contract with parties named McCord and Hapke,. whereby in consideration of certain payments to be made to him by said parties, he agreed, among other things, to turn over to the latter “all the stock of the American Construction and Supply Company now owned by him.”</p> <p>At the time the contract was made both McCord and Hapke knew that the stock owned by Fuehrman had been assigned to McCord ;as collateral .security for a promissory note given by the American Construction and Supply Company to McCord.</p> <p>Held, that under the circumstances it was not incumbent upon Fuehrman to deliver the stock unincumbered to McCord and Hapke:</p> <p>That it was only necessary for Fuehrman to adopt the previous delivery of the stock to McCord and to relinquish to McCord and Hapke all his right, title and interest in the stock arid that he had done this by executing the agreement; That, as the contract was made by both McCord and Hapke and contained no words of severance to indicate several responsibility, it was the joint obligation of both McCord and Hapke and that the delivery of the stock to one of them was as effective as a delivery to both.</p>

<p>Sills receivable given for goods imported into the State of New York and sold in the original packages — they wre taxable in the hands of a foreign corporation doing business in the State of New York.</p> <p>The credits or bills receivable of a foreign corporation doing business in the State of New York constitute, although they are the proceeds of the sale in the original packages of imported goods, capital invested in business in the State of New York, within the meaning of section 7 of the Tax Law (Laws of 1896, chap. 908).</p> <p>The tax on the proceeds of such goods is not a tax on imports in contravention of section 10 of article 1 of the Federal Constitution, nor is it a tax on the saies as such, nor on the right to sell goods in the importer’s hands while in the original packages.</p> <p>Ingraham and McLaughlin, JJ., dissented.</p>

Appeal by the defendants, Margaret Kerr and another, from so much of a judgment of the Supreme Court in a partition action, entered in the office of the clerk of the county of New York on the 28th day of March, 1905, upon ■ the decision of the court, rendered after a trial at the New York Special Term, as adjudges that the interest claimed by said defendants in the premises in question has escheated to the People of the State of New York.

Appeal by George Pumphrey and another, as executors, etc., of Mary S. Pumphrey, deceased, 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 March, 1903, confirming the report of commissioners of estimate and assessment in the above-entitled proceeding.

Appeal by the defendant, The New York Central and Hudson River Railroad Company,.from a judgment .of the Supreme Court, in, favor of the plaintiffs, entered in the- office of the clerk of the county of Jefferson on the 13th day of January, 1905, upon the verdict of a jury, for $1,105, and also from an order entered in said clerk’s office on the 12th day of January, 1905,. denying the defend-, ant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, the St. Regis Paper Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Jefferson on the 9th day of January, 1905, upon the verdict of a jury for. $5,400, and also from an order entered in said cleric’s office on the 6th day of January, 1905, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>The action was commenced on the 6th day of December, 1902, to recover damages for injuries sustained by the plaintiff, alleged to have been caused solely through the negligence (of the defendant and without negligence or fault on the part of the plaintiff.</p>

Appeal by the defendant, Daniel Hall, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 22d day of November, 1904, upon the verdict of a jury rendered 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 10th day of October, 1904, denying the defendant’s motion for a new trial made upon the minutes.

<p>Health officer of the city of Little Halls — when, in the absence of express statutory provision, he may be appointed by the board; of health — he must first be certified to be qualified for the position by the civil service commission.</p> <p>The charter of the city of Little Falls (Laws of 1895, chap. 565, § 14, as ami byLaws of 1896, chap. 13) provides that the health officer thereof shall be appointed “in pursuance of general laws.” Previous to the amendment of section 20 of the Public Health Law (Laws of 1893, chap. 661} by chapter 383 of the. Laws of 1903, that section, contained an express provision for the appointment of a health officer in that.city, but by such amendment such express provision was omitted therefrom. In 1904, by chapter 484 of the laws of that year, the Legislature again amended section 20' of the Public Health Law by reinserting the omitted provision.</p> <p>Meld, that the omission of section 20 of the Public Health Law as amended in 1903 to expressly authorize the appointment of a health officer for the city of Little Falls was an oversight on the part of the Legislature and that notwith-, standing such omission, the board of. health of the city of Little Falls had power to appoint a health officer for the city while the amendment of 1903 remained in force.</p> <p>Where a municipal office or position is in the non-competitivé class of the civil service and is subject to a non-competitive examination, the holding of such examination and the issuing of a certificate of qualification by the civil service authorities must precede an appointment to the office or position; if the appointment is made prior to the taking of the examination by the appointee and the issuance of a certificate of qualification to him and he is not again appointed after he has taken the examination and obtained the certificate, his appointment is invalid.</p> <p>Williams, J., dissented.</p>

Appeal by the defendants, Casper Schuster 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 Erie on the 20th day of, April, 1904, upon the decision of .the court, rendered after a trial at. the Erie Special Term, directing the foreclosure of a mortgage and a sale of the property covered thereby.

Appeal by the proponent, Elizabeth Cook Burgess, from a decree of the Surrogate’s Court of the county of Cayuga, entered in said Surrogate’s Court on the 29th day of April, 1904, refusing to admit to probate an instrument in writing purporting to be the last will and testament of Albert G. Burtis, deceased, dated May 26, 1902, by the terms of which instrument all the property of the decedent was devised and bequeathed to the appellant.

Appeal by the plaintiff, Frank J. Tanner, as receiver of the property of John Eckhardt, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Erie on the 17th day of November, 1904, upon the report of a referee dismissing the complaint upon the merits.

Appeal by the defendant, The Post-Standard Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 16th day of April, 1904, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 1st day of April, 1904, denying the defendaht’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Tonawanda Board and Paper Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the dlerk of. the county of Jefferson on the 7th day of July, 1904, upon the verdict of a jury, and also from an .order entered in said clérk’s office on the 12th day of July, 1904, denying the defendant’s motion for a new trial made upon the minutes, with notice of an intention to bring up for review upon such appeal an…

Appeal by the defendant, the H. P. Snyder Manufacturing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered'in the office of the clerk of the county of Herkimer, on the 30th day of December, 1904, upon the verdict of a jury rendered by direction of the court after a trial at the Herkimer Trial Term, and also from an order entered in said clerk’s office on the 15th day of December, 1904, denying the defendant’s motion for a new trial made upon the…

- Appeal by the defendant, The New York Mills, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 23d day of June, 1904, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 28th day of June, 1904, denying the defendant’s motion for a new trial made upon the minutes..

<p>Appeal by the'defendant, John A. Murphy, as administrator, etc., of Mary Murphy, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Seneca on the 1st day of August,-1904, upon the decision of the court rendered after a trial at the Seneca Trial Term, .the jury having been discharged.</p>

Appeal by the defendants, George C. Helfert and another, from a portion of a judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of Oneida on the 9th day of January, 1905, confirming the report of a referee upon the sale of certain real property in the above-entitled partition action and directing a distribution of the fund. realized from such sale, ■' '

Appeal by the defendant, The Postal Telegraph-Gable Company, from a judgment of the Supreme Court in-favor of the plaintiff, entered in the office of the clerk of the county of Yates on the 27th day of June, 1904, upon the report of a referee. The appellant from 1899 to 1903 had in its employ as manager at ' Pénn Yan, one Harrington. The business carried on at the defendant’s office was quite extensive for a country village and the part contributed by the plaintiff was large.

Appeal by the plaintiff, Laura L. Cooper, from an order of the County Court of Cayuga county, entered in tiie office of the clerkmf' the county of Cayuga on the 21st day of February, 1905, setting aside a judgment of the City Court of Auburn in favor of the plaintiff, and directing a new trial of the action.

Appeal by the defendant, The Buckmobile Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 28th day of November, 1904, upon the verdict of a jury for $1,250, and also from an order entered in said clerk’s office on the 1st day of December, 1904, denying the defendant’s motion for a new trial made, upon the minutes.

Appeal by the defendant, the Southern Tier Masonic Relief Association, from a judgment of the Supreme Court in favor of the plaintiff, entered in the offic'e of the clerk of'the county of Jefferson on the 15th day of November, 1904, upon the decision of the court ' rendered after a trial before the court without a jury at the Jefferson Trial Term.

<p>Agreement 'to pay a note in ease of default on. the part of the corporation making it — what rights are acquired, by parties making payments under such agreement, ■in bonds and stock pledged to secure the note —effect of the corporation not borrowing the entire amount of the note, and of a portion thereof being borrowed after the maturity of the note.</p> <p>A corporation applied to a bank for a loan of $75,000 on its note payable June 1, 1900, such note to be secured by $100,000 in the bonds of the corporation and 4,245 shares of its stock, with a provision fora sale of the stock and bonds upon the non-payment of the. note on a depreciation in the value of the collateral. The note was further secured by an agreement, subscribed by certain individuals, providing that in case of default in the payment of the note each subscriber would, “on demand, purchase his proportion of the bonds deposited as collateral, and pay to the Trust Company the amount set opposite his signature hereto, together with any then accrued and unpaid interest upon said amount, receiving on such payment his proportion of the collateral as aforesaid.” Among the signatures was that of the treasurer of the corporation and following his signature were the words, $10,500 cash, $14,000 bonds, 600 shares stock. •The bank granted the application for the loan thus secured and advanced to the corporation thereon $50,000, the remaining $25,000 not having been requested by the corporation. The corporation only paid about $15,000 upon the note.</p> <p>Held, that under tire .agreement subscribed by him, the treasurer was required to pay such proportion of the $10,500 subscribed by him as the amount actually advanced by the corporation bore to the entire amount of the note, viz., two-thirds, or $7,000, and that upon making such payment he was entitled to two-thirds of the $14,000 in bonds and to two-thirds of the 600 shares of stock; That the fact that the bank had not advanced the entire amount of the loan did not operate to relieve the treasurer from his entire liability upon the agreement, it appearing that the corporation did not call for the entire amount;</p> <p>That the fact that $10,000 of the $50,000 actually advanced by the bank was advanced after the maturity of the note did not operate to lessen the treasurer’s liability, it appearing that he knew of the advancement of such sum and made no objection thereto.</p>

Appeal by the defendant, Charles E. Arnold, from a judgment of the Supreme Court- in favor of the plaintiff, entered in the office of the clerk of the county of Cattaraugus oh the 9th day of March, 1905, upon the. decision of the court rendered after a trial at the Cattaraugus Trial Term, a jury having been waived.

<p>Negligence — buildings burned as alleged by sparks from a railroad locomotive — action maintainable by the owner and insurance companies contributing to the loss — evidence competent on the question whether the fire was caused by sparks from the locomotive, and whether it had a proper spark a/rresier.</p> <p>Certain buildings and personal property were destroyed by a fire which it was claimed had been caused by sparks which a railroad company negligently permitted to escape from one of its.locomotives. Several..-insurance companies which had issued policies covering-the property paid the amount of the loss and took a pro tanto assignment of the insured’s- right of action against the railroad company. Thereafter the insured and the insurance companies joined in a single action against the railroad company to. recover the damages sustained by them from the fire.</p> <p>Upon the'trial it appeared that the roof of .the building upon- which the fire first made its appearance was seventy-seven feet from the railroad; that the weather was very .dry and that a strong wind was. blowing from the direction of the railroad toward the building; that'there was no fire in or near the buildings and that the .flames were discovered shortly after one of the defendant’s - passenger trains had passed.</p> <p>Testimony was given to the effect that upon .the occasion, in question the loco.motive drawing such -train started several fires in the vicinity of the buildings and that both upon this and at least one prior occasion it emitted sparks and * cinders of a size and character which could not have escaped through a proper netting.</p> <p>Held, that the verdict of a jury to, the. effect that the fire was. ¡kindled by, sparks emanating from" the locomotive in question-and that such locomotive was not equipped with a proper spark arrester was justified by the evidence;,</p> <p>That it was proper for the insured and the insurance companies to unite in a single aetion.against the railroad company, and that, even if it was improper for them to- so unite, the defendant could only raise such objection by answer or demurrer;</p> <p>That a witness having experience might properly be allowed to give testimony to the effect that a spark which could escape through an arrester in proper condition would not be carried alive over the distance between the railroad track and the buildings in question;</p> <p>That evidence that the locomotive, which was claimed to have started the fire in question, had started other fires both upon' the occasion in question and upon another one, was competent, for the reason that such evidence, when taken in connection with the other established facts, indicated that the locomotive was emitting sparks and cinders of a kind which could not have escaped if the mesh of the arrester had been in proper order;</p> <p>That it was not error for the trial justice to allow the individual plaintiff to show that locomotives drawing passenger trains, which locomotives were not identified as the one which was claimed to have started the fire, had thrown cinders as far as his buildings, for the reason that, as it did hot appear that the defendant contended that there was any material difference in the construction, operation or fuel of its passenger locomotives, such evidence tended to establish that such a locomotive might throw an ignited cinder as far as the plaintiff’s buildings, and thus to establish the probability of the plaintiff’s claim, Stover, J., dissented.</p>

<p>Certificate issued by a mutual aid society — assignment by the society of a joint and several bond and mortgage given by the holder of the certificate and his. wife — insolvency of the society not a defense, to a foreclosure of the mortgage, on the part of the wife, the owner of the mortgaged premises—the husband entitled to offset any indebtedness due to him from the society— the assignment not open to attach on the ground that it was fraudulent as against creditors — effect of a failure to. serve a reply to an answer ashing that the certificates be allowed as a counterclaim, defense and set-off to the bond and mortgage.</p> <p>Joseph H. Damon and Phebe D. Damon, his wife, executed to a mutual aid society their joint and several bond for $950, which bond was secured by «, mortgage covering premises belonging to Mrs. Damon. Mr. Damon was then the owner of two certificates issued by the mutual aid society, which certificates entitled the holder thereof, at the expiration of seven years, to his portion of what was known as the “ Sustentation Fund ” maintained by the society up to the sums respectively of $600 and $1,000 less the amount paid for sick and accident benefits. After the maturity of the certificates the society assigned the bond and mortgage to a third party by an assignment, which was regular upon its face and purported to convey the unqualified title and ownership and in which the assignee did not agree to assume the payment of the assignor’s obligation.</p> <p>In an action brought by the assignee to foreclose the mortgage, Mr. and Mrs. Damon interposed a joint answer setting up the facts with relation to the cer-. tificates heretofore mentioned, and alleging that the mutual aid society had become insolvent and that by reason-'thereof the answering defendants would have no adequate remedy at law if the plaintiff was allowed to enforce the mortgage. They demanded judgment that the complaint -be dismissed and also “ that said certificates be allowed as a counterclaim, defense and set-off to the said bond and mortgage, and that said bond and mortgage be satisfied and cancelled of record and that the defendants may have such other or further relief or both in the premises as shall be just and equitable.” .</p> <p>The plaintiff served no reply to this answer. The trial court awarded an affirmative money judgment in favor of Mr. Damon upon the certificates and adjudged that the mortgage had been satisfied.</p> <p>Held, that, so far as Mr. Damon was concerned, he was entitled to offset any indebtedness due to him from the plaintiff’s assignor upon the certificates, against any claim which might,be made against him in the mortgage foreclosure action; but that as he was only liable in such action for any deficiency arising upon a sale of the mortgaged premises, of which his wife was the sole" owner, he was not entitled to the affirmative money judgment granted to him,</p> <p>That as Mrs. Damon had no interest in the certificates issued by the plaintiff's assignor, she was not entitled to have the amount due thereon applied to the satisfaction of the mortgage;</p> <p>That, as the assignment of the bond and mortgage to the plaintiff was regular upon its face and would protect the mortgagor, upon payment, from any further claim by the assignor, Mr. and Mrs. Damon were not entitled to attack the honesty of the assignment or to claim that it was fraudulent as against creditors;</p> <p>That the plaintiff, by failing to serve a reply to the answer, did not concede that the defendants Damon were entitled to the judgment awarded them, on the theory that, such answer interposed a counterclaim, for the reason that the language of the answer and the proceedings at the trial indicated that the certificates were being urged as a set off and defense to the bond and mortgage rather than as a basis for an affirmative judgment.</p>

Appeal by the defendant, William N. Spear, from a judgment of the County Court of Chautauqua county in favor of the plaintiff, entered in the office of the clerk of the county of Chautauqua on the 28th day of January, 1905, 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 30th day of November, 1904, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Elden. H. Cook, as sheriff of Oswego county,-Hew York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oswego on the 21st day of March, 1904, upon the decision of the court, rendered after a trial at the Oswego Special Term, setting aside a levy made by Albert Warren, as sheriff of Oswego county, upon certain real estate, and making permanent a temporary injunction restraining the…

<p>Appeal by the defendant, Mark D. Knowlton, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office, of the clerk of the county of Monroe on the 10th day of December, 1904, upon the verdict of a jury, and- also from an order entered in said clerk’s office on the 10th day of December, 1904, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the plaintiff, Margaret Culnane, from a judgment of the Supreme Court in favor of the defendant, Andrew J. Dixon, entered in the office of the clerk of the county of Steuben on the 1st day of December, 1904, upon the decision of the court, rendered after a trial at the Steuben Special Term, dismissing the complaint upon the merits.</p> <p>The defendant holds the title and possession of certain real estate situate in the town of Corning, Steuben, county, through various mesne conveyances-from the county treasurer of said county. Said official, in December, 1899, duly advertised and sold said premises for non-payment of taxes claimed to have been assessed for the year 1897 and reassessed as unpaid in 1898. The premises were assessed as lands, of a resident taxpayer to one Mary M. Oulnane.</p> <p>Plaintiff is seeking by this action to have set aside said tax sale and the conveyances founded thereon upon the ground that in 1897 said lands belonged to one Doolittle,'who was a non-resident, and that, therefore, the original assessment of them, other than as non-resident lands, was invalid and void.</p>

<p>Negligence — duty of a railroad company to promulgate a rule preventing a locomotive from being moved while the ashpan is being cleared of ashes — what does not v meet this obligation — when an employee will not be assumed to home known of the failure of the company to promulgate such rule — assumption of risk.</p> <p>In an action brought to recover damages for personal injuries, it appeared that the defendant railroad company had a track in its yard upon which it was accustomed to place locomotives for the purpose of having their ashpans cleaned; that in the process of cleaning, a hostler would board the locomotive and shake down the fire and "that the plaintiff would then, go under the engine and hoe out the ashpan. As many as thirty locomotives were shaken down and cleaned out each night. On the night in question, after the hostler had left a locomotive and while the plaintiff was under it hoeing out the ashpan, a locomotive crew boarded the locomotive and set it in motion, causing the plaintiff to receive serious injuries.</p> <p>A number of similar mistakes in putting engines in motion had previously happened, hut it did not appear that the plaintiff had ever heard of any of them.</p> <p>The negligence charged against the defendant was its failure to prescribe a rule which would have prevented the locomotive from being put in motion while the plaintiff was at work under it.</p> <p>Held, that a judgment dismissing the plaintiff’s complaint should be reversed;</p> <p>That the jury might properly find that the defendant, in the exercise of reasonable care, should have promulgated a rule which would have prevented the locomotive from being moved while the plaintiff was under it;</p> <p>That the obligation resting upon the defendant to protect the plaintiff while at work was not met:</p> <p>Mrst, by the fact that the plaintiff was supplied with a lantern showing an ordi- ■ nary white light which was placed by the side of the locomotive while he was ■ at work thereunder, it appearing that there was no rule or practice in the yard which made such light serve as a warning and also that other employees furnished with like lanterns were accustomed to leave the lanterns upon the ground in various places throughout the yard;</p> <p>Second, by the fact that there was a practice upon the part of the engineers to ring the hell upon a locomotive before starting it, it appearing that'the evidence indicated that this practice was not followed in the defendant's yard;' or,</p> <p>Third, by a written rule reading that engine men “must report for duty at the appointed time; see that the engine is in good working order and furnished with necessary stores and supplies and a full set of signals,” as this rule was designed to insure the proper working condition of the locomotive and not to protect a person under the locomotive; _ . ■</p> <p>That in view of the plaintiff’s subordinate position, of the extent of the yard and of the number of employees employed about the same, and of the fact that the plaintiff denied being aware of the omission of the defendant to promulgate a rule for his protection, it could not, although he had been in the defendant’s employ for several years, be said, as matter of law, that he knew or should have known of the omission of the defendant to promulgate the ' necessary rule, and, therefore, assumed the risk resulting from such omission.</p> <p>Williams and Stover, JJ., dissented.</p>

Appeal by the defendant, the Town of New Albion, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cattaraugus on the 31st day of August, 1904, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 18th day of May, 1904, denying the defendant’s motion for a new trial made upon the minutes.

<p>Negligence ■—who is not a superintendent within the meaning of the Bmployers Liability Act — the principal is not liable for the act of a superintendent not done in the master’s business, and not an act of. superintendence — who is a superintendent.</p> <p>In an.action brought to recover damages for personal injuries', it, appeared that the plaintiff was employed by the defendant in operating an electric crane and that when so engaged he was stationed in a cage at one side of the crane; that on the occasion inZquestion he left the cage and went upon the carriage of the crane to oil the machinery; that while performing this work he received a shock from the electric wires and fell from the carriage to the floor below sustaining the injuries for which he sought to recover. The plaintiff’s theory of the accident was that the electric current which caused his injuries had been negligently turned on by one Knapp.</p> <p>It appeared that the defendant had a general superintendent named Greenough and that Knapp’s position was that of a foreman. The latter occupied a position on the floor and when the crane was ready for operation he would give a signal to the plaintiff who would thereupon start the crane. The plaintiff had the entire control of the crane and its operation and was the only person in charge thereof.</p> <p>He testified with reference to Knapp as follows: “ During all the time I worked there I didn’t see Greenough (who was the general superintendent) give any orders to any‘of the men connected'with the gang that I was working with. He would give his orders to Mr. Knapp and Mr. Knalpp gave the orders to the men. I didn’t see Knapp do any work except to give the orders. * * * I went to work that morning at seven o’clock. I worked until about nine o’clock operating the crane. Mr. Knapp was there that day, and he directed my movements up till nine o’clock.”</p> <p>Held, that the plaintiff’s complaint was properly dismissed;</p> <p>That upon the whole evidence it did not appear that Knapp was invested with such authority in the general direction of the business of the defendant as to constitute him a superintendent within the meaning of the Employers’ Liability Act;</p> <p>That, assuming that it was the act of Knapp'which caused the injury, and that Knapp was a superintendent within the meaning of the Employers’ Liability Act, the defendant was not liable for the plaintiff’s injuries, for the reason that the act of Knapp which caused the injury was not one committed while he was engaged in the superintendence of his master’s business;</p> <p>That it is not simply the power to instruct, or even to direct in a particular manner, that constitutes superintendence within the meaning of the Employers’ Liability Act; it must be such supervision'and charge as gives power of direction with respect to the manner and means of prosecuting the work in question; That the Employers’ Liability Act must -be construed to create a liability against the employer for the acts of a superintendent only when the superintendent is engaged in the act of superintending.</p> <p>Spring and Hiscock, JJ., dissented.</p>

Appeal by the plaintiff, Peter Aex, from a judgment of .the Supreme Court in favor of the defendant, entered upon the report of a' referee.

<p>Appeal b'y the defendant, The Supreme Court of the Independent Order of Foresters, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 7tli day of October,- 190é, upon the decision of the court rendered after a trial at the Erie Trial Term, a jury having been waived.</p>

Appeal by the defendant, The City of Oswego, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oswego on the 9th day of February, 1905, upon the verdict of a jury for $550, and also from an order entered in* said clerk’s office on the 10th day of February, 1905, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the Comptroller of the State of Hew York from an order of the Surrogate’s Court of the county of Steuben, entered in said Surrogate’s Court on the 4th day of February, 1904, modifying an order entered in said Surrogate’s Court on the 21st day of July, 1903, fixing the transfer tax upon the property of the estate of John M. Deutsch, deceased, by striking from said order the tax levied upon legacies bequeathed by the said decedent to Mildred Conderman and Frances…

<p>Life insurance policy —proof that the notice, prescribed by section 92 of the Insurance law, was mailed is essential to its forfeiture for non-payment of premium — in the absence thereof the one-year limitation of an action thereon does not apply — what proof as to the mailing of such notice presents a question of fact for the jury. .</p> <p>An insurance company claiming that a twenty-payment policy of life insurance issued by it had become forfeited and lapsed for the non-payment of a premium, must establish that the notice required by section 92 of the Insurance Law</p> <p>. (Laws of 1892, chap. 690, as amd. by Laws of 1897, chap. 218) was mailed to the insured as provided in such section.</p> <p>The provision in said section 92 that an action on a forfeited policy must be instituted within one year from the date of the default, does not apply where the insurance company fails to prove the mailing of the statutory notice and thus to establish the fact of forfeiture — certainly where the policy fixes a.limitation of two years and the insured dies within thirty-two days after the due date of the premium, for the non-payment of which the forfeiture is asserted.</p> <p>The premium on a twenty-payment life insurance policy became due November 29, 1902, and the insured died December 31, 1902, before sutih premium was paid. The insured resided at No. 8 Girton place, Rochester, N. Y., up to October 4, 1902, when he moved to No. 64 Barrington street, Rochester, N. Y., and by his direction all mail addressed to him at Girton place was delivered to him in Barrington street. The employee of the insurance company, who attended to the preparation and mailing of the premium notices, testified that about the seventeenth of October 'she prepared the statutory notice and addressed it to the insured at his Girton place residence. She testified that this particular notice had been prepared and mailed in conjunction with several hundred others and her recollection depended upon certain check marks made by her opposite the insured's name on a due sheet. The envelope containing the notice bore the return address of the insurance company’s representative and it was not proved that the letter was not returned to such representative. The wife of the insured testified that during all the time when the letter might be expected to have reached the insured’s home she received her husband’s mail, and "that during this period she saw no letter bearing the return address of the insurance company’s representative. A person who, at the request of the insured’s wife, took . charge of the' insured’s papers after his death and examined them, testified that he'did not find the notice in question.</p> <p>Held,, that the question whether the statutory notice had been mailed to the insured was one of fact for the jury to determine.</p> <p>Hiscock and Stover, JJ., dissented upon grounds not discussed in the syllabus.</p>

Appeal by the plaintiff, Mary R. Schummer, from a judgment of the County Court of Erie county in favor of the defendant Mary Clark, entered in the office of the clerk of the county of Erie on the 30th day of March, 1904, upon the decision of the court, rendered after a trial before the court without a jury, dismissing the complaint as to the defendant Mary Clark. The action was commenced to foreclose a mechanic’s lien upon property owned by the defendant Mary Clark.

Appeal by the plaintiff, Albert R. Galloway, from a judgment; of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Orange on the 16t-h day of June, 1904, upon the dismissal of the complaint by direction of the court after a trial at the Orange Trial Term.

Appeal by the defendant, George E. Ellers, from a judgment of the Municipal Court of the city of Hew York in favor of the plaintiff, entered on the 19th day of August, 1904.

Appeal by the plaintiff, Harry Ford, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the defendants, entered on the 13th day of September, 1904.

Appeal by the defendant, New York Oity Railway Company, from a judgment of the Municipal Court of the city of New York, entered upon the verdict of a jury in favor of the plaintiff.

Appeal by the plaintiff, Resina Pennacchio, 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 7th day of October, 1904, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term.

Appeal by the defendants, Edward M. Grout, comptroller of the city , of ISTew York, and another, from an order of the Supreme - Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 4th day of April, 1905, granting the relators’ motion for a peremptory writ of mandamus.

<p>Negligence-—injury to a pedestrian in the street from being- struck by the overhang of the.J aider of a street car in passing around a curve — right of the motorman to assume that the pedestrian would, draw back to avoid being struck.</p> <p>In an action brought to recover damages for personal injuries, it appeared that, at six o’clock on a November evening, when the usual lights had been lighted the plaintiff, an adult, was waiting at a curve for one of the defendant’s street cars; that he stood at such a distance from the outer edge of the curve that the entire body of the car passed him without striking him, but that the fender on the rear end of the car struck and injured him. The plaintiff did not testify that he was not ■ aware that the rear of the car was likely'to swing out when rounding the curve.</p> <p>Held, that the complaint should have been dismissed on the ground that the-plaintiff had failed to prove that he was free from contributory negligence. Semble, that, assuming that the motorman of the car was' bound, in the discharge of his duties, to see the plaintiff as the front of the car passed him, no negligence could he imputed to the railroad company because of the motorman’s failure to warn the plaintiff of the danger of being struck by the rear end of the car;</p> <p>Semble, that the plaintiff being an adult apparently in full possession of health and vigor, the motorman might rightfully assume that the plaintiff would, if necessary, as the car turned the curve, draw back far enough to avoid being struck.</p>

<p>Appeal by Reverend James S. Duffy, one of the legatees. under the last will and testament of Owen Nolan, deceased, from so much of a decree of the Surrogate’s Court of the county of Kings, entered</p>

<p>Appeal by the plaintiff, Charles Duhme, an infant, by Henry Dulime, his guardian ad litem, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of, the county of Kings on the 23d day of April, 1904, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term, and also from ah order entered in said clerk’s office on the 16th day of April, 1904,' setting aside a verdict in favor of the plaintiff and dismissing the plaintiff’s complaint, upon which said judgment was entered.</p>

<p> Will—when an estate in remainder is rested-so as to pass to the heirs.of ihe remainder-man dying pending the continuance of the life estate. </p> <p>The 90i clause oí the "will -of a testator, who had devised a life-estate in his farm to his wife Elizabeth, provided as follows: “Ninth. Upon the death -of my said wife, Elizabeth, I give and bequeath unto my said daughter, Lydia, all that part of my farm and premises lying westerly of the New York and Harlem railroad at Unionville during her natural life, and at her death I order and direct my executors to sell the same, namely: All that part of my said farm situate at Unionville, lying westerly of the New York and Harlem .railroad, as described in the above ninth clause of my will, tb be divided as follows, namely, one-third part thereof to my grandson, George W. Yerks, and the other two-thirds part thereof to my two grandsons, John 0. and Joseph O., share and share alike.”</p> <p>The testator was survived by all -the persons mentioned in said '9fh clause. One of the grandsons, however, died during the life of the testator’s widow.</p> <p>Meld, that the 9th clause of the will operated to create a vested remainder in favor of the deceased grandson in one-third of the premises described in said 9tli clause, and that such remainder was not divested hy the death of the grandson during the pendency of the widow’s life estate.</p>

Appeal by the defendant, Leonard L. Poates, from a judgment of the Municipal Court of the city of Mew York, borough of Brooklyn, upon the decision of the court in favor of the plaintiff, entered on the 23d day of June, 1904.

Appeal by James Ebbets and others from three orders of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 16th day of May, 1904, respectively, granting three petitions for advancements on account of distributive shares of the estate of Charles P. Ebbets, deceased, and also from a decree entered in said Surrogate’s Court On the 8th day of June, 1904, directing a final distribution.

Appeal by the defendant, the Star Company, from an order of the Supreme Court, made at the Kings County Trial Term and entered in the office of the clerk of the county of Kings on the 10th day of January, 1905, granting the plaintiff’s motion for a preference.

Appeal by the plaintiff, Jacob M. Lacs, an infant, by Samuel Lacs, bis guardian ad litem, from an order -of - the Supreme Court, made at the Madison SpeeiaLTerm and entered’ in the office of the clerk of the county of Kings on the 28th day of September, 1903, granting the defendant’s motion for a new trial and setting aside the verdict of a jury in favor of the plaintiff.

Appeal by the defendant, The Brooklyn Heights Railroad Company, from an order of the Supreme Court, made at the Kings County Trial Term and entered in the office of the clerk of the county of Kings on the 7th day of December, 1904, setting aside the verdict of a jury in favor of said' defendant.

Appeal by the plaintiff, Margaret Rooney, as administratrix, etc., of John Rooney, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 29th day of December, 1904, upon the verdict of a jury rendered by direction of' the court after a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 9th day of December, 1904, denying the plaintiff’s motion…

Appeal by the plaintiff, A. Y. Ridgely, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 28th day of June, 1904, upon the verdict of a jury rendered by direction of the court, a previous verdict in favor of the plaintiff having been set aside by the court, after a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 16th day of July, 1904, granting…

Appeal by the defendants, Thomas L. Feitner and others, as commissioners of taxes and assessments of the city of New.York, from a judgment of the Supreme Court in favor of the relators, entered in the office of the clerk of the county of Kings on the 21st day of January, 1903, upon the decision of the court, rendered after a trial at the Kings County Special Term, directing the reduction of the assessment on the relators’ property for the year 1899, and also from an order…

Appeal by the plaintiff, The People of the State of New York, from a portion of an order of the Supreme Court, made, at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 20th day of February, 1905.

Appeal by the relator, Charles Hagerty, 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 May, 1905, quashing a writ of certiorari.

Appeal by the plaintiff, Karl Motzing, 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 10th day of June, 1903, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 18th day of June, 1903, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Francis P. Martin, from a judgment of the Supreme Court in favor of the defendant, the Dominican Convent of -Our Lady of the Rosary, entered in the office of the clerk of the county of Rockland on the 9t'h day of June, 1904, upon the report of a referee, dismissing the complaint as to said defendant.

Appeal by the proponent, Charles S. Powell, from a decree of the Surrogate’s Court of Nassa-u county, entered in said Surrogate’s Court on the 16th day of September, 1904, refusing probate of the will of Abram Bedell, deceased. '

Appeal by the defendant, the American Sugar Refining Company of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered m the office of the clerk of the county of Kings on the 5th day of April, 1904, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the '5th day of April, 1904, denying the defendant’s motion for a new tidal made upon the minutes.

Appeal by the defendant, Cyrus Rlieims, 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 13tli day of October, 1904, upon the verdict of a jury for $1,500, 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 üpón the minutes.

Appeal by the plaintiff, Martino Di Stefeno, 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 15th day of March, 1904, upon the dismissal of the complaint by direction of the court after a trial at the Westchester Trial Term. -

Appeal by. the defendant, John H. Woodbury, from a judgment of the County Court of Queens county in favor of the plaintiff entered.in the office of the clerk of the county of Queens on the 29th day of June, 1904, upon the verdict -of a jury, and also from an order entered in said clerk’s office on the 11th day of July, 1904; denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Henry Vollmer, from a judgm.ent of the County Court of Kings county in favor of the plaintiff, entered in the office of the cleric of the county of Kings on the 18th day of October, 1904, upon the verdict of a jury for $150.

<p> Chattel mortgage—the mortgagee, under a provision that he may tahe the property if he "'shall at any time deem said property unsafe," must act in godjaith. </p> <p>A mortgagee of personal property who is authorized by the mortgage to take possession of the mortgagors property if he ‘' shall at any time deem said property unsafe/- can act thereunder only when his determination to the effect that his property is unsafe is made in good faith</p>

Cboss-appeals by the plaintiff, Emma Walker, and by the defend- • ant William H. Maxwell, from portions of a judgment of the Supreme Court in part in favor of the plaintiff, but dismissing the complaint as to the defendant Lyman Á.

Appeal by Charles F. Gall from so much of a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate's Court on the 4th day of May, 1904, as allows commissions and costs to Amelia Gall, as administratrix, etc., of Joseph Gall, deceased, and as directs that the said Amelia Gall, as administratrix, instead of individually, pay to the appellant the amount of his costs and disbursements.

Appeal by the plaintiff, Bridget A. Dowling, 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 2d day of March, 1904, upon the verdict of a jury rendered by direction of the court after a trial at the Kings County Trial Term, a previous verdict in favor of the plaintiff for $4,500 having been set aside by the court.

Appeal by the plaintiff, Joseph A. Burr, 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 10th day of August, 1904, upon the decision of the court, rendered after a trial before the court without a jury at the Kings County Trial Term, dismissing the complaint upon the -merits.

Appeal by the plaintiff, Elizabeth Burns, as administratrix, etc., of Thomas White, deceased, from a judgment of' the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 15th day of July, 1904, upon the verdict of - a jury rendered by direction of the court after a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 15th day of July, 1904, denying the plaintiff’s motion for a…

<p>Street opening in New York city — the city is not bound to at once keep the street open to public travel-.— a. fence is a building—remedy where an- obstruction ' . remains on the street for an unreasonable time.</p> <p>The provisions of the revised charter of the city of New York relating to the opening of streets therein (Laws of 1901, chap. 466, § 990, as amd. by Laws of 1903, chap. 418) do not impose upon the city an obligation to keep the street open to public travel from the. instant that the report in the proceeding to open such street is confirmed by the Supreme Court. That such was not the intent of the Legislature is indicated by section- 971 of the Greater New York charter, which provides, “ The hoard of estimate and apportionment may permit any building which shall be either partly or wholly included within the limits of any such street, or park laid out in the said city, and so to be opened as aforesaid, to remain unremoved for such time or times as they shall think proper,” and by subdivision 1 of section 151 of said charter, which provides, “It shall be lawful, for such bureau, under the direction of the comptroller, to collect rental for the temporary use and occupation of property acquired by the city for public purposes between the time of the acquisition thereof and the time when the same can be actually utilized for the purposes for which it was acquired.”</p> <p>A fence standing within the limits of a newly-opened street is a “bui.Ang ” within the meaning of section 971 of the revised Greater New York charter. Qucere, as to the relief available to a property owner, if a fence or other structure is allowed to remain upon a newly-opened street for an unreasonable length of time.</p>

Appeal by the plaintiff, J ames Snyder, from a judgment of the Supreme Court in favor of the defendant the Monroe Eckstein ' Brewing Company, entered in the office of the clerk of the county of Richmond on the 29th day of June, 1904, upon the decision of the court, rendered after a trial at the Richmond Special Term, directing the cancellation of a mechanic’s lien ánd the lis pendens filed in the above-entitled action, which was brought to foreclose the said lien.

. Appeal by the Methodist Episcopal Hospital in the City of Brooklyn and another from so much of a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 7th day of April, 1904, as adjudges that a certain sum of money referred to in the account of the executors of Mary Ann Dugard, deceased, forms no part of the estate of the said Mary Ann Dugard, deceased, but belongs to the estate of Lillie M. Lahey, deceased, and directs the…

Appeal by the plaintiffs, Frederic R. Coudert and another, as executors of and trustees under the will of Frederic R. Coudert, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk .of the county of Nassau on the 25th day of February, 1903, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the complaint upon the merits and dissolving a temporary injunction theretofore…

<p>Coroners’ clerk in the borough of Brooklyn — he must be appointed by the two coroners acting together — mandamus to compel the board of estimate and apportionment to fkc the salary of a clerk appointed by one coroner, denied —province of the writ of mandamus.</p> <p>Under section 1571 of the revised Greater ¡New York charter (Laws of 1901, chap. 466), which provides, “ The coroners in each borough shall have an office in said borough, and shall appoint a clerk who shall receive an annual salary to</p> <p>' be fixed by the board of estimate and apportionment and the board of aider-men, and such and so many assistant clerks as shall be provided for in the annual budget,” the two coroners of the borough of Brooklyn, elected pursuant to section 1570 of the said charter, each assumed to appoint a clerk.</p> <p>Held, that the two appointees were not entitled to a peremptory writ of mandamus requiring the board of estimate and apportionment of the city to fix their salaries and to provide for the payment of the same, the Appellate Division being of the opinion that, the power to appoint a clerk was given to the two coroners collectively and not to each one of them separately;</p> <p>That, consequently, there was an absence of that clear legal right on the part of the appointees, the existence of which was necessary, to justify the granting of the peremptory writ .of mandamus;</p> <p>That it is not the provinee of a writ of mandamus to adjust controverted questions of law and fact.</p>

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 2d day of February, 1904, upon the verdict of a jury for $12,500, and also from an order entered in said clerk’s office on the 26th day of February, 1904, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 20th day of June, 1904, upon the verdict of a jury for $4,775, and also from an order entered in said clerk’s office on the 21st day of June, 1904, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 25th day of November, 1904, upon the verdict of a jury for $750, and also from an order entered' in said clerk’s office on the 22d day of December, 1904, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, D. Appleton & Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 24th day of December, 1902, 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 18th day of December, 1902, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, William O. Q-. Wilson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of' Westchester on the 2d day of May, 1904, upon the verdict of a jury for $1,134, and also from an order entered in said clerk’s office on the 'Tth day of May, 1904, denying the defendant’s motion for a new trial made upon the minutes. ■</p>

<p> Bond given by a trustee to secure the payment to her of an awa/rd in condemnation proceedings—when the order directing it will not be vacated on her motion. </p> <p>An application by the executrix and trustee under a will to vacate an order, which she had previously obtained, directing payment to her of an award made in condemnation proceedings for a portion of the trust property upon the filing of a bond, is properly denied where it appears that the executrix and trustee voluntarily complied with the provisions of the order by giving the required bond, and was both willing and anxious to accept payment of the' award until she learned that her attorney had filed a lien against the estate.</p>

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

<p>Contract to construct a gas holder — explosion of the same from unexplained came, . while being tested,—when the contractor cannot recover the contract price therefor —provisions as to the test; held to suspend the gas company’s liability-to pay, not simply the time of payment —the delivery to the gas company of bills of sale of the materials furnished, held not to constitute an acceptance of the work—-what is not . a substantial performance—performance depending upon the continued, existence of a person or thing.</p> <p>A gas company entered into a contract with a firm, whereby the latter undertook to well and sufficiently erect and finish complete and in a good, workmanlike and substantial' manner, under the direction of the Chief Engineer of the Owner and to the satisfaction .of said Chief Engineer, to be evidenced by writing or certificate under his hand, and in accordance with the drawings and specifications signed by said parties and hereto annexed, a quadruple section gas holder with steel tank and guide frame and other appurtenances,” and to "find and provide such good, proper and sufficient materials and labor of all kinds whatsoever, as well as sufficient apparatus, tools and machinery, for the completion of all the various parts of such work mentioned in the drawings and specifications * * * within six months after the time when the foundation to be prepared by the Owner for the reception of the said tank and GasHolder is sufficiently advanced to allow the Contractor to commence work.” The contract provided that seventy-five per cent of the contract price should be paid upon the completion of the work or in installments during the progress of the work, and that the remaining twenty-five per cent should be paid when the gas holder and its appurtenances had been in satisfactory working order for sixty days.</p> <p>The contract also provided that “ the Contractor shall also bear and repair all loss or damage to the structure, which may have been caused by accident or otherwise, and on which payments have been made by the Owner,” and that “no certificate given or payment made under this contract shall be conclusive evi-* dence of the performance of this contract, either wholly or in part, against any claim of the Owner to the contrary in any suits or proceedings whatever. Nor shall any certificate or payment in any way release the Contractor from the complete fulfillment of any portion of his work in the manner prescribed by the drawings, specifications and contracts.”</p> <p>The specifications made a part of the contract provided: “ On completion of the tank, satisfactory test having been made, the Company will do all necessary grading. * * * - The tank will not be accepted until it has been proven water tight after being filled with water to its full height and has so remained for thirty days. * * * The holder shall be properly tested, and, a trial made by raising each section to its full height by air pressure; the whole to be delivered to the Consolidated Gas Company in complete working order, perfectly gas tight. * * * The Contractor * * * shall repair and make good any damage to the property of the Company * * * which may occur during the prosecution of the same, and deliver to the Consolidated Gas Company of the City of New York a gas holder, guide fraiiie, and tank complete in all details in accordance with the spirit and intent of these specifications and the drawings hereunto annexed.”</p> <p>During the progress of the work payments were made to the contractors, and bills of sale of the materials used therein were given by the contractors to the gas company. December 3, 1898, the work had reached such a stage of com: pletion that there remained to be performed by the contractors only certain minor details arid the remedying of any defects that might be discovered during the tests required by the contract. On said day, pursuant to a notice from the contractors to the effect that the tank was ready to be filled with water, the gas company began pumping water into the tank, which process continued until the tank was filled on December 18, 1898. During the process of filling the tank the contractors’ employees were working- about the tank, and the gas company was engaged in performing the work necessary to connect the tank and holder with its works. On the afternoon of December 18, 1808, and before, so far as appeared, the gas company had connected the tank and" holder with its works, or had taken possession and control of the gas tank and holder, the tank collapsed owing to causes not clearly explained.</p> <p>The plans and specifications for the tank were conceded to be amply sufficient to render it safe. *</p> <p>Held, that as the contractors had contracted not merely to perform work and furnish materials to the gas'company, but to deliver tó the gas company, a gas tank and holder in complete working order, which fact was to be established by certain tests specified in the contract, and as the tank had collapsed before any of the contract tests had been completed or waived by the gas company, and before the gas company had accepted the tank, the contractors had failed to perform their contract and could not recover the balance of the contract price from the gas company on the theory that they had substantially performed the contract, particularly as the contractors expressly undertook, by the contract, “ to bear and repair all loss or damage to the structure * * * caused by accident; ”</p> <p>That the argument that the provisions of the contract relating to tests, delivery and acceptance operated simply to suspend the time of payment, but not the gas company's liability in case compliance with such provisions of the contract was rendered impossible," was untenable;</p> <p>That the fact that bills of sale were delivered to the gas company, as the work progressed, did not amount to a modification of the contract or an acceptance of the work done, in the absence of proof of any act evincing an intention to accept the work or to waive or modify any of the provisions of the contract; That the contractors could not invoke the rule of substantial performance, because there had been a total failure of performance:</p> <p>That the rule that where the performance of a contract depends upon the continued existence of a person or thing which is assumed as the basis of the agreement, the death of the person, or the destruction of the thing, terminates the obligation, has no application to a case where the thing destroyed is the thing which one of the parties has expressly contracted to produce and deliver.</p>

<p> Deposits in the names of third persons in savings banks in trust, and transfers of stock in trust, for parties named—when they create a tentative and not an irrevocable trust—evidence as to purpose. </p> <p>On November 10, 1884, Louis H. Lattan opened accounts in each of four savings banks in the names of his sisters, Fanny A. Lattan and Angelica Lattan, in form in trust for his children, and also on that date and on January 5, 1885, transferred to them in similar form, as trustees for his children, certain shares of bank stock. At about the same time he also opened other savings bank accounts and transferred additional bank stock in trust for his children, designating as trustees, in each of the transactions, either himself or one or both of his said ‘sisters. The moneys deposited in the savings bank and the bank stock so transferred belonged to the said Louis H. Lattan and comprised his entire estate.</p> <p>In an action brought by the children of Louis H. Lattan against the administratrices of Fanny A. Lattan and Angelica Lattan to recover the amount of the four savings bank deposits and the valúe of the shares of bank stock first above mentioned, it appeared that Louis H. Lattan was a spendthrift, and that he recognized his inability to care for his own money; that his sisters, Fanny and Angélica, were the business heads of the family.</p> <p>He testified at the trial as follows: “I had to put it (his property) out of my hands on that account for the future, as I did not know but what I might leave my family destitute. That was the idea of my doing so; there was no other reason. * * * I put it all out of my hands and then if I wanted money I got it. ** * * I thought they (referring to his sisters) were honest to give me what was due me.”</p> <p>He further testified that at the time of the making of the transfers and deposits involved in the action, nothing was said between him and his sisters respecting the purpose of the transaction, but it appeared that immediately thereafter his sisters commenced paying him moneys from the fund thus created, as he called upon them for it, and that prior to their respective deaths, which occurred in March, 1900, and April, 1901, the entire proceeds of such deposits and of the bank stock had been paid over to him in small payments, as he called for them, and that during the period covered by such payments the plaintiffs were in entire ignorance of the existence of the so-called trusts.</p> <p>Held, that the testimony clearly established, that Louis H. Lattan intended to create, by the deposits and transfers, a tentative and not an irrevocable trust;</p> <p>That the form of the deposits and transfers did not establish an intention, on his part to create an irrevocable trust so conclusively and irrebuttably as to render ineffective the other evidence in the case which unmistakably demonstrated that such was not his intention.</p> <p>Hirschberg, P. J., dissented.</p>

<p>Appeal by the defendant, the Onward Construction 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 6th day, of August, 1904, upon the decision of the court rendered after a trial at the Kings County Trial Term, a jury having been waived, and also from an order entered in said clerk’s office on the 6th day of August, 1904, granting the plaintiff an extra allowance.</p> <p>The plaintiff is the assignee of the Vinton Company, a corporation which, pursuant to the contract discussed in the opinion, had performed and furnished certain work,-labor and materials in the construction of a building owned by the defendant.</p>

Appeal by the plaintiff, Samuel McMillan, from a final judgment of the Supreme Court in favor of-the defendant, entered in the office of the clerk of the county of.

<p>Bight of a contract vendee to a title which will not be assailed — encroachment of a building on a city street — when it does not render the title unmarketable — the. possibility that the city will after five years require its removal is too remote to affect the marketability of the property — measure of damages where a contract vendor cannot convey a good title.</p> <p>A contract vendee of land will not be compelled to complete his contract if he may be obliged to defend his possession of such property by litigation. He is entitled to a title that will enable him to hold the land free from' probable claim by another, and one that, if he wishes to sell, will be free from any reasonable doubt that will interfere with its market value..</p> <p>If the existence of the alleged fact, which is claimed or supposed to constitute a defect in or cloud upon the title, is a mere possibility or the alleged outstanding right is but a very improbable or remote contingency, which, according to ordinary experience, has no probable basis, the court may, in the exercise of a sound discretion, compel the purchaser to complete his purchase.</p> <p>Such discretionary power is to be carefully and guardedly exercised, and then only in cases free from all reasonable doubt.</p> <p>Where the stone piers, supporting a building erected on a corner lot in the city of New York, are channeled longitudinally at regular intervals for a depth of about two inches with the result that, while the inner surfaces of the channels are on the street lines, the remainder of the stone work, the superficial area of which is greater than that of the channels, projects over the street lines for a distance of two inches, such an encroachment does not render the title to the premises unmarketable and justify the court in refusing to decree specific performance of a contract for a sale thereof, it appearing that the encroachment is within the stoop or area line of the premises, that it does not bear any part of the weight of the building, and there being no claim that it affects any property rights or easements of the owners of other property abutting upon the streets.</p> <p>In such case the city of New York is the only party having the legal authority to question the right of the owner to maintain the building as thus constructed, and when it is shown that the building has been erected for a period of five years without hostile action upon the part of the city, the possibility of future hostile action on its part is so remote that it should not be regarded as affecting the marketability of the title to the property, particularly in view of the practice of the Legislature in passing from time to time statutes sanctioning the continuance of greater encroachments upon public streets in the city of New York.</p> <p>Semble, that where a vendor of real, property, without fraud on his part, is unable to convey a marketable title, the vendee is not entitled to recover damages for the loss of his bargain, but only the money paid upon the contract, with interest. the expense incurred in examining the title and such other expenses as have resulted from the obligations imposed thereby upon the vendee.</p> <p>He is not entitled to recover commissions which he paid his brokers as compensa» tion for their services in procuring the execution of the contract of sale.</p> <p>Senible, however, that if the vendor has been guilty of collusion, tort, artifice or fraud the vendee is then entitled, not only to recover the damages above set forth, but also the damages arising from the loss of his bargain. • '</p>

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

Appeal by the defendant, Winfield S. Bash, from a judgment of the Supreme Court in favor of the plaintiffs, entered in-the office of the clerk of the county of Hew York on the 5th day of December, 1904, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 14th day of March, 1905, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, John Wanamaker and others, doing business under the firm name and style of John Wanamaker, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of FTew York on the 6th day -of May, 1903, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 15th day of May, 1903, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendants, Cornelius H. Tallman, individually and as executor of and trustee under the will of Jacob B. Tallman, deceased, and. another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the Merle of the county of New York on the' lOtli day of May, 1904, upon the decision of the court, rendered after a trial at the New York Special Term, adjudging that the said defendants hold certain real property as trustees for the…

<p>Improper remarks by a prosecuting officer — when they do not constitute error — use on the trial of an indictment of the affidavits made before the committing magistrate— a ship’s manifest, as evidence of age.</p> <p>Improper remarks made by a prosecuting officer in opening a case to the jury or in summing up the same can only be made the basis of error where they appear to have been of such a character as to have a natural tendency to inflame and arouse the passions and prejudices of the jury and where the language used is not justified from a fair consideration of the evidence in the case. Where the evidence is of such a character that its bare recital operates to arouse the passions and prejudices of the jury or of a listener, it does not constitute error for the prosecuting officer to rehearse the evidence and comment upon the inferences fairly deducible therefrom, even though its effect is to increase with the jury feelings of passion and prejudice.</p> <p>Where on the trial of an indictment charging the defendant with the crime of abduction, the prosecuting officer places in evidence the affidavits used upon the examination of the defendant before a police magistrate, for the purpose of determining whether or not to hold the defendant to await the action of the grand jury, their reception does not constitute error where the trial judge, when admitting such affidavits in evidence, rules that their effect “is the same as an indictment,” and thus receives the affidavits simply as evidence that a charge has been made against the defendant before the police magistrate.</p> <p>Even conceding that the admission of the affidavits in question constituted a technical error, the Appellate Division may, under the terms of section 542 of the Code of Criminal Procedure, disregard, such error as harmless where it appears that the affidavits were not read to the jury, nor their contents referred to, or considered by them in any manner.</p> <p>Where there is received in evidence on the trial a ship's manifest, prepared pursuant to the act of Congress passed August 2, 1882", from which it would appear that, at the time of the commission of the crime, the female in question was beyond the legal age of consent, but the accuracy of which manifest was contested upon the trial, a charge that the jury in determining the age of the female ’’may’ consider the manifest is as favorable to the defendant as the latter has a right to expect, and it is not improper for the court to refuse to charge that the jury “ must** consider the manifest in determining that question.</p> <p>Ingraham and McLaughlin, JJ., dissented.</p>

<p>Appeal by the defendants, William Jay and another, as substituted trustees for Anna Benkard Hunt under the deed of trust of the 31st day of July, 1872, 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 9th day of March, 1905, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the said defendants’ demurrer to the plaintiff’s amended complaint.</p> <p>The plaintiff alleges that on the 31st day of July, 1872, the defendant Anna Benkard Hunt, then Anna Benkard, in contemplation of marriage with one Percy Hunt, an alien subject or citizen of Great Britain, made and executed an agreement in writing with three trustees, residents of the State of New York, wherein and whereby for a valuable consideration she bargained, sold, assigned, transferred and set over unto them and to their successors and assigns forever certain real estate situate in the city of New York, being all of the real estate owned by her, together with the rents, issues and profits thereof and certain personal property mentioned in a schedule thereto annexed and all the personal property owned by lier, excepting furniture, wearing apparel, jewelry and personal ornaments, with the appurtenances, to have and to hold upon trust, to sell and reinvest the proceeds, and to hold and manage, collect and receive the interest, income and profits and to pay and apply' the net income therefrom, to her own use during her life, and from time to time to pay her such part of the principal of the proceeds, as they should deem proper, “ and upon and after ” ' her death to-pay and divide the said real and personal estate, or the proceeds, thereof, to and among such person or persons or bodies corporate, and in such relative shares, estates, or proportions, as she, the said party of the first part, shall, by her last will and testament or instrument in writing in the nature of a last will and testament, designate, and appoint, and in default of any lawful designation or áppointment by the said party of the first part, then to pay and divide the said real and personal estate or the proceeds thereof among such person or persons as under the laws of the .State of New York shall then be the heirs at law of the said party of the first part, and in the same estates, shares and proportions such heirs at law.would be entitled thereto if the same were all real estate situate in the State of New York, and the said party of the first part had died intestate seized and possessed thereof in fee simple and not married,” and upon the further trust to improve the real estate and partition the same with co-owners, as therein directed, with power to-them or the survivor of them to appoint their successors in-the event of death,, resignation or incapacity, covenanting on her part and on the part of those deriving any interest thereunder in the usual manner for further conveyances, transfers and assurances “for the better or more effectually vesting and confirming the premises hereby ■intended to be granted in and to the said parties of the second part, their successors and assigns, for the purposes above mentioned as-by the said parties of the second part, their successors or assigns, shall be reasonably’ devised or required ; ” that the instrument, contained a provision by which the trustees accepted the trust and covenanted forthwith to perform the same, each to be liable only for liis own acts; that the declaration of trust was duly acknowledged on that day and the trustees- in fact accepted the trust and took possession of the property; that on the 13th day of November, 1879, the original trustees resigned, having previously .advanced to said Anna Benkard Hunt tlie sum of $50,000 of the principal of the trust fund, and one Alonzo C. Monson and the appellant William Jay were duly suhstitntedx as trustees in their place and stead, and on the 6th day of January, 1.880, the original trustees transferred and assigned to them real and personal property belonging to the estate upwards of $225,000, and they accepted and entered upon the performance of their duties as substituted trustees; that on the 18th day of November, 1879, said Anna Benkard Hunt entered into an agreement with said substituted trustees by which she purported to exercise the power of appointment reserved to her in said instrument designated a “deed of settlement,” reciting the execution ef said deed of settlement and some of the terms and conditions thereof; that the original trustees desired to and were about to be relieved of their duties as trustees and were to be superseded by said Monson and Jay, who were to be appointed by the retiring trustees ; that the retiring trustees had exercised their discretion by making said advancement to the settlor upon condition, however, that she then exercise the power of appointment reserved to her and designate and appoint by deed under seal the persons to whom the estate should be paid over, distributed and divided at her death, which she had determined to do, provided that in consideration of the premises and of said advancement she thereby designated and appointed that the trustees or their successors in office at the time •of her death should hold the trust estate upon the same terms and •conditions as in the deed of trust provided and after paying the necessary costs, charges and expenses of the care and management of the estate out of the rents, issues and profits thereof should pay the balance of ^said rents, income and profits to her husband during the term of his natural life, and upon his death should assign, transfer, convey and set over the real and personal estate “ unto such children of the party of the first part as shall then be living and to the issue of such of them as shall have died in equal shares per stirpes and not per capita .absolutely and forever,” reserving to her, however, the right to vary that disposition by last will and testament or an instrument in the nature thereof by directing that a certain part of the annual income shall be paid to her children during the life of her husband, and that the estate upon her husband’s death should be set over untó one or more of her children or their</p> <p>issue, and in the event of the death of all her children without issue in the lifetime of her husband or of there being no. child or children or issue of a child or children living at the time of her death then she reserved to herself the absolute right, of otherwise disposing of the trust estate by last will and testament or instrument in the nature thereof; that this instrument was also duly acknowledged ; that the appellant William Jay has ever since his said ' appointment continued to act as a trustee, and on the- 28th day of May, 1890, in an action in the Supreme Court charged himself as sole acting trustee with the sum of $229,665.80 in cash and securities consisting almost wholly of bonds secured by .first mortgages in the city of- New York; that the resignation of said Monson as' trustee was accepted, pursuant to a decree in said last-mentioned action and he thereupon assigned and conveyed the trust property to the appellant Jay as. trustee; that on the 26th day of June, 1890, the appellant Winthrop likewise pursuant to said decree was substituted for said Monson and accepted the trust, and Jay as trustee thereupon assigned and transferred the trust property to Winthrop and himself as trustees; that the personal property held by them as such trustees is of the value of' at least $200,000; that - said Anna Benlcard Hunt has for a long time resided abroad and now resides with her children at the city of Paris, France; that on the 1st day of July, 1898, after the death of her husband said Anna Benkard Hunt obtained from one Thomas Charles Line, a resident of England, a loan of £9,200 sterling, and as security for the repayment thereof she and her three children who were of age, the fourth, the defendant Bn pert Herbert Hunt being a minor, executed a mortgage declared to be supplementary to said original deéd of settlement and to said agreement between her and the trtistees Jay and Monson on the 18tli day of November, 1879, to which quite full reference is made, reciting that the appellants were trustees at that time and tliat the children have agreed with their mother “ to take up money on a joint account” and for that purpose have requested her to release the power of appointment and to join in the mortgage of the trust estate as therein set forth and that the mortgagee has . agreed to lend to the mortgagors on joint account said sum of £9,200 sterling upon condition that repayment of principal and interest be secured as therein provided, and providing that in consideration of the receipt of said sum the mortgagors covenant to repay the principal and interest, and each, as to his separate interest, beneficial or otherwise, under said deed of settlement and agreement supplementary thereto granted, appointed, bargained, assigned, transferred and set over to the mortgagee, his heirs, executors, administrators or assigns all of the real and personal estate and all the trust estate comprised in' or then subject to said trusts or either of them to hold unto the use of the mortgagee, his heirs, executors, administrators and assigns, subject to the proviso for redemption thereinafter contained, and said indenture further witnessed that in pursuance of the agreements upon which said loan was made Mrs. Hunt, at the request and with the concurrence of her said adult children, released unto them and all other persons interested in the trust estate the further exercise of the power of appointment, “ to the end and intent that the said trust estate shall vest absolutely subject to the life interest of the said Anna Ben hard Hunt in ” her four children in equal shares, and said adult children mutually covenant to divide equally notwithstanding any appointment; that the mortgage contained a provision for redemption by repaying the indebtedness and interest during the month of September of the following year, and the mortgagors, in behalf of themselves, their heirs, executors and administrators, covenanted “ that they and all and every other person or persons whatsoever lawfully or equitably deriving any estate, right, title or interest of, in or to the hereinbefore granted premises bv, from, under or in trust for her, him or them, shall and will at any time or times hereafter maize, do and execute or cause or procure to be made, done or executed all and every such further and other lawful and reasonable acts, conveyances, assurances and transfers for the better or more effectually vesting and confirming the premises hereby intended to be granted in and to the mortgagee, his heirs, executors, administrators and assigns for the purposes above mentioned, as by the parties requiring the same shall be reasonably devised or required,” and it was further declared that the agreement for the loan was made in England and " that the mortgage should be construed according to the English law; that on the 1st day of January, 1899, the mortgage and the indebtedness secured thereby and the securities mentioned therein were dul y assigned by the mortgagee to Cartmell Harrison for value, who on the 4th day of January, 1899, and on the 5tli day of June, 1899, respectively, duly assigned the same to Thomas Connock Elliott .as security for a loan of £6,000 and "£8,000 respectively, together with all the rights of the assignor; that no part of the loan secured "by the -original mortgage or of the loans secured by the assignment thereof has been paid.; that said Elliott died on the 1.3th day o'f January, 1902, leaving a last will and testament, naming the plaintiffs as executors and trustees, and devised and bequeathed the residuum -of his estate to them in trust; that the will was' duly admitted to probate on the 20th -day of February, 1902, in the Principal Probate Registry of His Majesty’s High Court of Justice in England, having jurisdiction thereof, and administration on the estate was duly granted -to the plaintiffs; that the plaintiffs have duly accepted the trusts -created by -the will, and .that their claim in this action forms part -of -the trust created by the will,- -and that by virtue of -the will and the trust provisions -thereof the plaintiffs became the owners of the claim against the defendants set forth in; the complaint and -of the securities accompanying the same and forming part thereof therein mentioned, and -as such trustees the plaintiffs likewise -hold and own the'judgment thereinafter-set forth under the trust -provisions -of -said will; that thereafter the plaintiffs as such executors brought -an action in the High Court of Justice, King’s Bench Division, of England, a court of general jurisdiction, against the) mortgagors, -except one of the children who had died in the meantime, -for the recovery of the money loaned and secured to be paid by the mortgage; that the defendants duly appeared in the action and plaintiffs recovered a judgment against them on the 27th day of October, 1903, for the sum of £11,373 10s. and £363 6s. 9d. costs taxed on the 18'th day' of December, 1903, no part of which has been paid; that there remains due and owing on , account -of said loan the amount -of -said judgment and interest thereon; that the defendants -sued individually all reside in Paris and have no intention of coming to the Hnited States; that none of the mortgagors have property in England upon which execution could be levied and that the, plaintiffs have-no remedy except this action in equity against the trustees .and -the trust estate held by them in this State, and that' the defendants .sued individually have no means other than said -trust estate with which to pay the same, have admitted their inability to pay arid have urged the trustees to make payment out of the principal of the trust estate, but that the latter refuse so to do. The complaint then contains an allegation that the trust deed or settlement is void as to personal property as against all of the creditors of said Anna Benkard Hunt, including the plaintiffs, because of the fact that it was made by her for her own benefit and that she reserved an advantage out of the personal property transferred to the trustees and that it was and is fraudulent and void both as to real and personal property as against the plaintiffs as her creditors by reason of the fact that it was a voluntary con veyance of all of her property for her own benefit. Judgment is then demanded, first, that the trust deed be declared void so far as it affects the claim of the plaintiffs in this action; second, that the mortgage security held by the plaintiffs be impressed upon and made a lien upon the trust funds and property in the hands of the defendant trustees under the deed of trust “ to the extent of the amount recovered by said plaintiffs in the Court of King’s Bench, High Court of Justice of England, aforesaid, and the interest, and the said defendant trustees be directed to pay and discharge the same out of any of the trust property in said trust in their hands, and to that end that the said defendant trustees, or their successors in interest, may be required to make full accounting as such trustees of all property held under said trust and of the rents, issries or profits thereof; ” third, that a receiver be appointed pendente lite ; fourth, that the amount of any judgment recovered by the plaintiffs herein against the defendants be declared a lien upon real property the same as if said deed or settlement had never been made ; fifth, that the trustees be enjoined from paying out interest or profits until the further order of the court, and, sixth, for other and further relief. Pending the action the plaintiff Percy Elliott Bateman, one of the trustees, died, and by an order- the action was continued in the name of the survivor.</p>

Appeal, by the plaintiff, Sylvester R- Hinckley, 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 22d day of December, 1904, Upon the decision of the court, rendered after a trial at the . New York Special Term, dismissing the complaint upon the merits.

<p>Appeal by the plaintiff, Frank P. Martin,, from a judgment of the County Court of Kings county in favor of the defendant,, entered in the office of the clerk of the county of Kings on the 4th day of February, 1904, upon the dismissal of the complaint by direction of the court after a trial at a Trial Term of said County Court.</p>

<p>Appeal by the defendant, the Federal Brewing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 26th day of May, 1904, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21st day of June, 1904, denying the defendant’s motion for a new trial made upon the minutés.</p>

<p>Negligence —an action lies in the State of New York by a resident thereof for an ■ injury sustained in a factory in another State, of which at the time he was d resident — the Employers’ Liability Act does not apply to such a case — the statutory and the common-law causes of action may be both alleged — election not compelled.</p> <p>The Supreme Court of the State of New York has jurisdiction of a common-law action brought by a resident of the State of New York against a Connecticut corporation to recover damages for personal injuries sustained by the plaintiff in the defendant’s factory in the State of Connecticut, although at the time when such inj uries were sustained the plaintiff was a resident of Connecticut.</p> <p>Such a cause of action does not come within the New York Employers' Liability Act (Laws of 1902, chap. 600), and where the complaint in the action, in addition to the common-law cause of action, contains an allegation of the giving of notice pursuant to said act, such allegation may properly be stricken from the complaint as surplusage.</p> <p>Semble, that if the cause of action had been within the provisions of the New York Employers’ Liability Act, the plaintiff might have alleged both his statutory and his common-law cause of action in his complaint and have recovered upon either and could not have been compelled to elect between the two before trial.</p>

Appeal, by the plaintiff, William Kerby, from a judgment of the Municipal Court of the city of New. York, borough of Brooklyn, in favor of the defendants, entered on the 15th day of March, 1904.

Appeal by the defendant, Jonas M. Kilmer, from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Broome on the 6th day of June, 19.05, denying the defendant’s motion to vacate an order theretofore made by a justice of the Supreme Court, by which one Shellman was directed to appear before a referee and be examined as a witness on behalf of the plaintiff.

Appeal by the defendant, The Duncan Company, 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 5th day of December, 1904, upon the verdict of a jury for $15,000, and also from, an order entered in said clerk’s office on the 17th day of ¡November, 1904, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, James O’Leary, as administrator, etc., of Daniel O’Leary, deceased, from a judgment of the Supreme Court in favor of .the defendant, entered in the office of the clerk of the county of Warren on the 28th day of November, 1904, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 3d day of December, 1904, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiffs, Sylvia W. Roberts and others, from an interlocutory judgment of the Supreme Court in favor of the defendants, Albert J. Bosworth and others, as executors, etc., of. Isaac A. Burton, deceased, entered in the office of the clerk of the county of Rensselaer on the 8th day of May, 1905, upon the decision of the court, rendered after a trial at the Rensselaer Special Term, sustaining the said defendants’ demurrer to the plaintiffs’ complaint.

<p>Appeal by Jesse M. Cornell and another from an order of' the County Court of Schoharie county, entered in the office of the clerk of the county of Schoharie on the 14th day of February, 1905, denying the appellants’ motion to vacate and set aside art order "granted on the 16th day of May, 1904, appointing three commissioners to assess damages in the above-entitled proceeding, and an order granted on the 3d day of September, 1904," confirming the decision of the said commissioners.</p> <p>On April 25, 1904, Jesse M. Wood and others, persons liable to be assessed for highway labor in the town of Gilboa, made an application to the highway commissioner of said town for the alteration of a certain highway in that town. Within thirty days after that application, and upon April thirtieth, upon five days’ notice to the highway commissioner of the town, they made a motion before the County Court at Cobleskill, at the chambers of the county judge at Cobleskill, N. Y., for the appointment of commissioners pursuant to section 83 of the Highway Law (Laws of 1890,. chap. 568, as amd. by Laws of 1904, chap. 353). That application was also made upon notice to the landowners whose land was to be taken in the said alteration. It appeared to the county judge that the land was mortgaged, and he directed that the proceeding be adjourned to May sixteenth, at his chambers at Schoharie, and that notice of the application be given to the mortgagees for that time. Notice was thereupon given to the mortgagees that the application would be made at one o’clock at the chambers of the county judge at Schoharie. Upon the sixteenth day of May, the day to which the proceeding was adjourned, at Schoharie, upon the appearance of the attorney for the applicants and upon the appearance of one Nichols, the attorney for the highway commissioner only, an order was made for the appointment of the commissioners under section 84 of the Highway Law (as amd. by Laws of 1904, chap. 353). Thereafter the commissioners met, notice of their hearing was duly given, their determination duly made, and upon the third day of September, at a County Court held in Cobleskill, an order was made confirming the report of the commissioners. That order was made upon notice to the landowners, to the mortgagees and to the highway commissioner, and upon the consent of the said Nichols, who had appeared in the proceeding for the commissioner and for the landowners and for Harriet Danforth, one of the mortgagees.</p> <p>It appears that the regular terms of the County Court were appointed to be . held at-the'courthouse at Schoharie, which is the county seat. The county judge resided at Cobleskill in said county. At the February term of - the County Court an order was .entered in the minutes ■ that the court be adjourned to the chambers of the county judge. No order was made adjourning the term claimed, to have been held at Cobleskill upon April thirtieth to Schoharie upon May sixteenth. The town and Jesse M. Cornell, one of the landowners, thereafter made a motion to the County Court to vacate all proceedings-on the ground of the lack of jurisdiction, which motion was denied, and from the order denying that motion this appeal is taken.</p>

Appeal by the defendant, The Cortland Water Works Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cortland on the 23d day of February, 1904, upon the decision of the court, rendered after a trial at the Cortland Special Term, enjoining and restraining the defendant from continuing the trespass alleged in the complaint and from keeping and- maintaining its water pipes in and through the locus in quo.

<p>Appeal by the defendant, the Cayuga Lake Cement Company, from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Tompkins on the 29th day of June,’1905, denying the defendant’s motion to set off one judgment against another.</p> <p>The plaintiff obtained a judgment against the defendant in Justice’s Court in Tompkins county for sixteen dollars and sixty cents and costs. An appeal was taken to the County Court where the judgment was reversed as contrary to and against the weight of evidence, with costs to the defendant, and a new trial was directed before a justice designated, but not the one before whom the action was first tried. The amount of the costs entered in such judgment was forty-one dollars and fifty-five cents. An appeal was taken to this court from such judgment, but such appeal was thereafter dismissed, without costs, on motion of the defendant. (97 App. Div. 634.) On the new trial plaintiff’s complaint was dismissed and judgment was entered against the plaintiff for one dollar and sixty-five cents costs. An appeal was taken from such judgment to the County Court where the judgment was reversed, without costs, From that part of the order of the County Court denying costs to the plaintiff she appealed to this court, and the order of the County Court was by this court modified by striking therefrom that part thereof disallowing costs, and in lieu thereof granting costs to the plaintiff, and as so modified the order was affirmed, with ten dollars costs and disbursements to the plaintiff. (105 App. Div. 307.) Judgment was thereafter entered against the defendant in favor of the plaintiff for eighty-three dollars and thirty-four cents.</p> <p>A motion was made by the defendant to set off the judgment of forty-one dollars and fifty-five cents pro tanto against said judgment of eighty-three dollars and thirty-four cents, which was denied, and from the order denying such motion this appeal is taken. In opposition to the motion the attorney for the plaintiff showed by his affidavit that he had paid or become personally liable to pay all of the disbursements contained in said judgment of eighty-three dollars and twenty-four cents, and that such judgment is wholly for disbursements except forty dollars taxable costs contained therein. He further showed by his affidavit that since the action was first commenced in the Justice’s Court, he had paid or become liable to pay disbursements therein to the amount of one hundred and five dollars and forty-two cents, arid that his services-as attorney were reasonably Worth the sum of ninety dollars, and that all that he had received on account thereof is the sum of five dollars paid by the plaintiff when the action was commenced ; that he had requested plaintiff to pay such disbursements but that she had.failed to pay the same. The plaintiff is a non-resident of the State of New York and wholly irresponsible.</p>

Appeal by the plaintiff, Tlie Union Bag and Paper Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Washington on the 10th day of December, 1903, upon the report of a referee; also an appeal from said judgment as amended and re-entered on the 25th day of January, 1905, nv/nc gyro tv/nc as of the 10th day of December, 1903, pursuant to an order entered in said clerk’s office '. on the 25th day of…

Appeal by the defendant, Nathan 0. Fonda, 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 Montgomery oh the 11th day of May, 1905, referring the issues in the action to a referee to hear and determine.

Appeal by the defendants, Fred E. Lyfordand another, as executors, etc., of James R. Park, late of the village of Waverly, Tioga county, In ew York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office Qf the clerk of the - county of Tioga on the 24th day of December, 1904, upon the decision of the court rendered after a trial at the Tioga Trial Term, a jury having been waived.

Appeal by the plaintiff, the Hudson River Water Power Company, and by the defendant, the Glens Falls Gas and Electric Light Company, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Saratoga on the 22d day of March, 1905, upon the decision of the court, rendered after a tidal at the Saratoga Special' Term, dismissing the complaint upon the merits, and awarding damages to the defendant Glens Falls Gas and Electric Light Company against…

Appeal by the plaintiff, William F. Wenz, from a judgment of the County Court of Chemung county, entered in the office .of the clerk of. the county of Chemung on the 24th day of October, 1904, upon an order of said County Court, entered in said clerk’s office on the 24th day of October, 1904, affirming a judgment of the City Court of Elmira in favor of the defendant, entered on the 8tli day of March, 1904, and also from the said order upon which the judgment appealed from…

Appeal by the defendant, the United Traction Company, from a judgment of .the .Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 9th day of March, 1905, upon the verdict of a jury for $800, and also from an order entered in said clerk’s office on the 9th day of March, 1905, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by -the defendant, Ransen 'Gardenier, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of ¡Columbia on the 1-Sth .day of March, 1905, upon the decision of the court rendered after a. trial at the Columbia Special Term.</p>

Appeal, by the defendant,, the New York City Railway Company,, from a. judgment of the County Court of Westchester county in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 26th day of September, 1904, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 23d day of September, 1904, denying the. defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Margaret Clinton, from a judgment of the County Court of Dutchess county in favor of the defendant, Leonard C. Frear, entered in the office of the clerk of the county of Dutchess on the 31st day of October, 1901, reversing a judgment of the Justice’s Court of the town of Stanford in favor of the plaintiff.</p>

Appeal by the defendant, William IL Hammond, from certain portions of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 8th day of February, 1904, upon the report of a referee.

- Appeal by the relator, the Westminster Heights 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 26tli day of September, 1904, denying the relator’s motion for a peremptory writ of mandamus.

Appeal by the Westminster Heights Company from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the cleric of the county of Kings on the 26th day of September, 1904, appointing commissioners of estimate and assessment in the above-entitled proceeding.

... Aep-eal by the defendant, The City of Mount Vernon, from, a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Westchester on the 26th day of September, 1903, upon the report of a referee.

Appeal by the plaintiff, Benjamin F. Weeks, from a judgment ' of the Supreme Court in favor of' the defendant, entered in the office of the clerk of the county of Orange on the 29th day of June, 1903, upon the decision of the court, rendered after a trial at the Orange Special Term, dismissing the plaintiff’s complaint upon the merits.

<p> Action in equity to set aside a chattel mortqage as an illegal preference under the Bankruptcy Law —the jurisdiction of the State court is not affected by the act of the United States court in transferring the lien of the mortgage from the mortgaged chattels to the proceeds of their sale —parties. </p> <p>An action in equity is the proper remedy to be pursued by a trustee in bank ruptcy for the cancellation of a chattel mortgage given by the bankrupt, which, under the provisions of the National Bankruptcy Act, is void because given, within four months of the filing of the petition in bankruptcy, with intent to hinder., delay and defraud the bankrupt’s creditors.</p> <p>The fact that prior to the commencement of the action, and before the trustee’s' appointment, and while the administration of the estate of the bankrupt was . in charge of a temporary receiver, an order was made, by consent of all parties in interest, in the United States District Court, providing for the sale of the mortgaged chattels,- the deposit of the purchase money with a trust- company and the transfer of the lien, if any, of the chattel mortgage to such fund, is not a bar to the maintenance in a State court-of the action in equity to cancel the mortgage, nor are the trust company and the temporary receiver necessary parties 'to such action.</p>

<p> Action at law to recover money paid by a bankrupt to a creditor with intent to give a preference. </p> <p>■ An. action by a trustee in bankruptcy, under the provisions of subdivision b of . section 60 of the Bankruptcy Law, to recover moneys paid to the defendant, a creditor of the bankrupt,' on the. ground that the creditor had reasonable cause to believe that the payment was made with intent to give him a preference, is one at law, where there is no public record to be reformed', no deed or conveyance to be set aside, nor any other relief asked than the simple recovery of a sum of money. ■ - -</p>

<p>. Appeal by the defendants, Helen Huber and others, as executors, etc., of Otto Huber, deceased, 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 15th day of October, 1904, upon the decision of the court rendered after a trial at the Kings County Trial Term, the jury having been discharged.</p>