Volume 108 — New York Appellate Division Reports

Appeal by the defendant, William McAdoo, as police commissioner of the city of New York, from an order of the Supreme Court, made at the' Kings County Special Term and entered in the office of the clerk of the county of Kings on the 2d day of November, .1904, granting a peremptory writ of mandamus.

<p>. Appeal by the' relator, John Schneider, from an order of the Supreme Court, made at the Kings County' Special Term, bearing date the 1st day of June, 1905, and entered in the office of the clerk of the county of Kings, dismissing a writ of habeas corpus and a writ of certiorari theretofore issued upon the application of the relator.</p>

<p>Appeal by' the plaintiff, Ellen Phillips, from an order of the Supreme Court, made at the Queens County Trial Term and entered in the office of the clerk of the county of Queens on the 14th day of June, 1905, denying the plaintiff’s motion to restore the action to the general calendar of the court in that county; and changing the place of trial of the action from the county of Queens to the county of Eew York.</p>

<p>Costs awarded against an administrator personally on Ms accounting — payment thereof cannot he enforced by contempt proceedings.,</p> <p>A provision in" a decree of the Surrogate’s Court, rendered- upon the judicial • settlement of an administrator’s accounts, directing the administrator to pay-personally a specified amount .of-costs to the contestants, cannot he enforced by contempt proceedings instituted pursuant to section 2555 of the Code of Civil Procedure.</p> <p>While the language of such section may be broad enough to authorize the institution of contempt proceedings in such a case, it must be construed in connection with section 15 of the Code of Civil Procedure, which prohibits imprisonment for non-payment of costs except in the cases therein specified.</p>

Appeal by the plaintiff, Maria Franco, by her guardian ad litem, Rocco Franco, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 27th day of April, 1904, upon the verdict of a jury rendered by direction of the court after a trial at the Kings Cotinty Trial Term, and also from an order entered in said clerk’s office on the 30th day of November, 1904, denying the plaintiff’s motion for a new trial…

Appeal by the defendant, Louis A. Phillips, 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 August,-1904, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 29th day of July, 1904, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Board of Education of the City of New York, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 19th day of September, 1904, upon the decision of the court rendered after a trial at the Kings County Trial Term before the court without a jury.

<p> Execution against a judgment debtor’s wages—it is not proper where the judgment is-for the professional services of a surgeon. </p> <p>A person recovering a judgment upon a claim for professional services rendered by a surgeon to the defendant’s wife, is not entitled to an execution against the wages or income of the defendant under the provisions of section 1391 of the Code of Civil Procedure as amended by. chapter 175 of the Laws of 1905.</p>

<p>Appeal by the plaintiffs, Lizzie M. Moore and another, from a judgment of the Municipal Court of thé city of New York, borough of Brooklyn, in favor of the defendant, entered on the 8th day of December, 1904, dismissing the plaintiffs’ complaint.</p>

Appeal by the defendant, Louis Fitzgerald, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office' of the clerk of the county of Kings on the 16th day of June, 1904, upon the verdict of a jury, and also from an order entered in' said clerk’s office on the 23d day of Juné, 1904, denying the-defendant’s motion for a new trial made upon the minutes^

Appeal by thé defendant, Mary A. Darling, 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. Suffolk on the 24th day of June, 1905, denying the defendant’s motion to vacate and set aside a previous order appointing a receiver of the defendant’s property.

Appeal by the plaintiff, Louis II. S child, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, entered on-the 18th day of'January, 1905,.dismissing the plaintiff’s complaint.

<p>Election — certificates of nomination, embracing a complete ticket of cmididaies, by a body of independent voters — the names should be placed in the. same column under the same emblem.</p> <p>A large "body of independent voters, who entertain the same political views, act in harmony and nominate a complete ticket of candidates favorable to their views, to be voted for at an approaching city election held in conjunction with a State election, are entitled to have all their nominees, both for city and State offices, placed in the same column under the same emblem.</p> <p>The persons executing the respective certificates of nomination are, for the purposes of selecting a name and an emblem for. use upon the official ballot, to bo regarded as one and the same “independent body” within the meaning and intent of the Election Law.</p>

Appeal by the plaintiff, Fred F. Pfeiffer, as sole trustee of the estate of James W. Hennessy, a bankrupt, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Schuyler on the 18th day of July, 1904, upon the decision of the court, rendered after a trial at the Schuyler Special Term, dismissing the plaintiff’s complaint. The plaintiff is the trustee in bankruptcy of one James W. Hennessy.

Appeal by Hyman Sonn and another, judgment creditors, from an order of the county judge of Broome county, entered in the office of the clerk of the county of Broome on the 19tlx day of ■ May, 1905, releasing Carrie Bell Depue from custody upon a writ of habeas corpus.

<p>Submission of a controversy upon an agreed statement of fact's pursuant to section 1279 of the Code of Civil Procedure.</p> <p>The plaintiff contracted to sell to the defendant, who agreed to buy, a parcel of land known as lot No. 36, on Hurlbut street, Albany, N. Y., for the sum of one hundred and twenty-five ($125) dollars, upon which contract defendant paid twenty-five ($25) dollars -on account of the purchase price, the balance to be paid on delivery of the deed; and in said contract it was agreed that the title thereto was to be perfect. The plaintiff tendered a deed, sufficient as to form, but the defendant refuses to take title or pay the balance of the purchase price, on the ground that plaintiff was not seized and possessed of the.same in fee simple absolute.</p> <p>The plaintiff’s title to said land was received under a. warranty deed dated February 13, 1903, executed by Charles B. Dodge and wife; said Dodge received his title thereto under a warranty deed dated December 30, 1899, from Gánsevoort de W. Hurlbut (and wife), individually, and acting as sole executor of and trustee under the last will and testament of Elisha P. Hurlbut, deceased.</p> <p>The sole ground upon which defendant refused to accept title to the land in question was, “ that the deed of conveyance made by Gánsevoort de W. Hurlbut, individually, and as sole executor of and trustee under the last will and testament of Elisha P. Hurlbut, deceased, to Charles B. Dodge, * * * was not sufficieii't to convey the title other than the individual interest of said Gansgvoort de W. Hurlbut, * * the question arising thereon being whether the said Gansevoort de W. Hurlbut, the sole qualifying trustee and executor, had power to convey the title to said land under the provisions of the/will of his testator.</p> <p>The provisions of the said will relating to the appointment of executors and trustees, and their power to convey the real property of the estate, are as follows, to wit: “ I appoint and constitute the aforesaid Gansevoort de W. Hurlbut, Paul F. Cooper and James Fenimore Cooper executors of this my last will and testament, and I give to them and to any two of them acting in any matters as such executors or as such trustees as aforesaid, full power and authority to do and transact any business pertaining to their duties * * *; also to sell and convert into personal estate any portions or the whole of the real estate so held in trust, whenever in their judgment the most advantageous time shall have arrived for mating such sales * * *; also as such executors or as such trustees, or in both capacities, to make, seal, execute and deliver any and all necessary and proper deeds, grants, conveyances or other instruments in and about the sales, leases or other transactions; * * * the act of a majority of the said trustees or executors shall be effectual and as fully and legally binding and operative as if all said trustees or executors had been joined therein.”</p> <p>On the probate, of said will, Paul F. Cooper and James Fenimore Cooper renounced their appointment and refused to act, and Gansevoort de W. Hurlbut alone qualified as. executor and trustee.</p>

Appeal by the plaintiff, Raquette Falls Land Company, from a judgment of the Supreme Court in favor of the defendant, entered in' the office of the clerk of the county of Hamilton on the 3d day of September, 1904, upon the decision of the court, rendered after a trial before the' court without a jury at the Fulton Trial Term, dismissing the plaintiff’s complaint.

<p>A sale under execution of personal property constitutes a conversion thereof, where the judgment debtor is not the owner thereof— testimony of a vendor and, purchaser as to their intent to defraud the former s creditors.</p> <p>The act of a sheriff, in levying upon and selling personal property under an execution against a person who had no interest in such personal property, is such an exercise of dominion over the property as will enable the actual owner thereof to maintain an action against the sheriff for its conversion, although at the time of the commencement of the action for conversion the purchasers at the execution sale had not actually removed the property.</p> <p>Where the defense interposed by the sheriff in the conversion action is that the sale of the property by the execution debtor to the plaintiff, through which ■ the latter claimed title, was fraudulent as to creditors, the trial court may properly allow the plaintiff and the execution debtor to testify directly as to their intent in making the sale and purchase.</p>

Appeal by the defendant, the Erie Railroad Company, from a judgment of the County Court of Wyoming comity in favor of the plaintiff, entered in the office of the clerk of the county of Wyoming on the 29th day of October, 1904, upon the report of a referee.

<p>Validity of a promissory note given by a corporation to its president—•delegation of authority to malte promissory notes by .a board, of managers to- an executive committee thereof— ratification by the stockholders of unauthorized acts ■ of the officers of a corporation — obligation to disaffirm a transaction after knowledge thereof. ■</p> <p>The president of .a corporation, in the absence of bad faith, has the right to take obligations or security from his corporation for an actual indebtedness to himself. ■</p> <p>It is only discretionary powers respecting the affairs of a corporation that a board of directors or a board of managers thereof is prohibited from, delegating to a Sub-committee or to &n agent: Such a board may vest the performance of merely ministerial duties in a! committee of their own members or in an individual.</p> <p>The board of directors of a business corporation have power to appoint an executive committee of their own number to transact the business of their corporation during the interval between meetings of the board of directors, even though such business might involve the giving of negotiable notes of the corporation for legitimate indebtedness incurred by it.</p> <p>Stockholders of a membership or of a stock corporation may ratify and validate unauthorized transactions of its officers.</p> <p>The rule that where a principal has not disaffirmed an unauthorized act of his agent within a reasonable time after it came to his knowledge, he will be deemed to have ratified it, applies to corporate bodies as well as to individuals.</p> <p>When a membership corporation is liable upon a promissory note, in which its president is named as payee, which, pursuant to the direction of a majority of the executive committee of its board of managers, was signed by its treasurer on behalf of the corporation and was delivered to the payee in payment of a just debt due from the corporation to the payee, considered.</p> <p>Smith, J., dissented.</p>

Cértiorabi, issued out of. the Supreme Court and attested*on the 13th day of April, 1905, directed to the board of supervisors of the county of Delaware and to B. F. Gr'efowe, clerk of said board, commanding them to certify and return to the office of the clerk of the county, of Delaware all and singular their proceedings had in relation to the rejection and disallowance of the relator’s claim for services.

. Appeal by the defendant, Michael K. Neville, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 18th day of February, 1905, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 18th day of February, 1905, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the International Paper Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 26th day of May, 1905, upon the verdict of a jury for $8,500 which verdict was thereafter reduced by the court upon the plaintiff’s stipulation to the sum of $5,000 ; also from an order entered in said clerk’s office on the 13th day of May, 1905, denying the defendant’s motion for a new…

Appeal by the plaintiff, the Ithaca Fire Department, from a final judgment of. the Supreme Court in favor of the defendant, entered in the office of the clerk of the- county of Tompkins on the 1st. day of March, 1905, pursuant to. an .interlocutory' judgment entered in said clerk’s office on. the 2d day of February, 1905, upon the decision of the court, rendered after a trial at-the Tompkins Special Term, sustaining the- defendant’s demurrer to the plaintiff’s complaint,…

Appeal by the defendant, Charles Bennett, from a judgment of the County Court of Hamilton county in favor of the plaintiff,' entered in the office of the clerk of the county of Hamilton on the 13th day of April, 1905,. affirming a judgment of a justice of the peace of the town of Indian Lake entered on the 27th day of April, 1904.

Appeal by the defendant, A. R. Gibbs, as receiver of the Sidney Glass Works, a dissolved corporation, from a portion of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk'of the county of Delaware on the 27th day of May, ( 1904, upon the decision of the court rendered after a . trial at the ■ Delaware Special Term.

Appeal by the plaintiff, Celia Reilly, as administratrix, etc., of David Reilly, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county pf Rensselaer on the 11th day' of July, 1905,- upon the dismissal of the complaint by direction of the court after a trial at the Rensselaer Trial Term.

<p>Appeal by the defendant, John D. Lawton, from a judgment of the County Court of Schuyler county in favor of the plaintiff, entered in the office of the clerk of the county of Schuyler on the 3d day of April, 1905, upon the decision of the court affirming a judgment of a justice of the peace of the town of Reading entered on the 9th day of November, 1904.</p>

■Appeal by the plaintiff,. Perry O. Hazzard, from a judgment of the Court of Claims in 'favor of the defendant,, entered in .the office of the clerk of said court on the 22d day of April, 1904, dismissing the plaintiff’s claim'.

Appeal by the defendants, George W. Glivit 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 Ulster on -the ,31st day of February, 1905, upon the verdict of a jury, and also from an order, entered ■ in. said clerk’s office on th'e 16th day of February, 1905, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the plaintiff, Mary York, as administratrix, etc., of Jesse York, deceased, from an order of the Supreme Court, made at the Sullivan Trial Term and entered in the office .of the clerk of the county of Sullivan on the 6th day of June, 1904, setting aside the verdict of a jury in favor of the plaintiff arid granting á new trial of tlie/ action.

<p>negligence — care required of an automobile driver passing & horse and wagon—r when he is nót negligent — opinion of an expert —upon what it must be based.</p> <p>Notwithstanding the, provisions of the Highway Law .(Laws of 1890, chap. 568, § 163, ás amd. by Laws of 1903, chap. 625; Id. § 169, added by Laws of 1901, chap. 53i; and amd. hy Laws of 1903, chap. 625) which authorize the driver-of- an- automobile, in the absence of any signal from the' driver of: a horse and carriage whom he is approaching on a highway, to pass such" horse and carriage at the rate of eight miles ah hour without stopping, the driver of- the automobile is nevertheless obliged to take notice of the." surrounding circumstances, and if it is apparent that by a particular method of proceeding he will be, liable to work an injury, either by frightening the horse or by causing a collision, it is his duty to adopt some other and safer method, if with reasonable care and jprudence he can do so.</p> <p>If, as the automobile is approaching the horse at a speed of three or four miles an hour, the driver of the automobile is given no signal by the driver of the horse, and sees nothing whatever in the conduct of the horse or its driver to indicate that the horse is likely to be frightened by the passing, of the automobile, the fact that when the automobile reaches a point opposite the horse and five feet distant therefrom, the latter becomes frightened and overturns the carriage affords, as a matter of law, no basis for declaring the driver of the automobile guilty of negligence.</p> <p>The opinion of an expert witness can properly be called out only by a hypothetical question, based upon facts which are either admitted or as to which some testimony has been given, sufficient to present the question as to their existence to a jury; Where there is no foundation in the evidence for the facts assumed, an answer to the question is properly, excluded.</p> <p>Where, in an action brought to recover damages for personal injuries sustained by the plaintiff, a physician who attended the plaintiff is called as a witness and after a hypothetical question embracing certain facts has been propounded to him is asked, “ Now, taking into'account the history of the case as you have got it and your examination of the plaintiff, and assuming all the facts stated in the question put to you to be true, are you able to give an opinion as to the cause of her present condition ?” it is improper for the court to allow the witness to answer such question, as it is manifest that the effect thereof would be to allow the witness to give an opinion based not merely upon the facts contained in the hypothetical question, but also upon facts derived by him from other sources which.were not the subject of testimony in the case and which were known only to the witness.</p>

<p>Appeal by William H. Knibbs from a decree of the Surrogate’s Court of Rensselaer, county, entered in said Surrogate’s Court on the 21st day of September, 1904, judicially settling the accounts of Luhr Eggers and others, as executors of James Knibbs, deceased.</p>

<p>Certiorari issued out of the Supreme Court and attested on the lith day of J-une, 1904, directed to Otto Kelsey, as Comptroller of the State of New York, requiring him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings had in relation to the revision and readjustment of the franchise tax assessed against the relator for the year ending October 31, 1901.</p>

<p>Negligence -r- collision between an automobile and a train at a railroad, crossing — failure of proof of freedom from contributory negligence.</p> <p>In an action brought to recover damages resulting from the death of the plaintiff’s intestate, who, while riding in a southerly direction in an automobile. over the defendant’s double-track railroad at a highway crossing, was struck arid killed by one of the defendant’s south-bound railroad trains, it appeared " that the highway ran northeasterly and southwesterly and the railroad north and south, crossing the highway at an angle of about twenty-seven degrees; that the view of the south-bouhd track towards the north obtainable by the occupants of a vehicle approaching the crossing from the north, as did the N automobile, was obstructed in some degree by fences, telegraph poles, trees and other obstructions, but that at a point in the highway 100 feet from the nearest rail such a person could obtain a view of the south-bpund track to the’ north for 340 feet, and that such view increased as the1 crossing was approached until at a point 22 feet therefrom the south-bound track could be seen for a distance of about two miles north of the crossing; that the occupants of a suiv rey, which was traveling along the highway in advance of the automobile, saw the south-bound train as they approached the crossing and crossed in safety.</p> <p>The occupants of this surrey, testified that before reaching the crossing they heard the horn of the automobile, and, upon looking around, saw the intestate and his companion talking together, but did not see either of them look for an approaching train. No one saw the deceased and his companion again until the instant the collision'occurred, When Ithe intestate and his companion were ' both seen to be looking up at the headlight of the. locomotive.</p> <p>Held, that a judgment entered upon a verdict in favor of the plaintiff should be reversed upon the ground that the evidence not only failed to show that the intestate was free from contributory négligence, but tended to shoW affirmatively that he was guilty of such negligence;</p> <p>That it Was the clear duty of the intestate to be on the lookout for an approaching train-as he entered upon the crossing,, and that if the- presence of a northbound freight train, which passed over the crossing immediately prior to the south-bound train, interfered with his view of the south-bound track, it was his duty to wait until the north-bound freight train had passed..</p>

Appeal by the defendant, J. Fred Sands, from a judgment of the County Court of Chenango county, entered in the office of the clerk of the county of Chenango on the 17th day of February, 1905, affirming a judgment rendered in favor of the plaintiffs by a justice of the peace. ,

■Motion' to confirm the report of a referee appointed to take proof and report to the court with his opinion upon an application • to strike the name of Arthur E. Clark, of Batavia, if. Y., from the roll of attorneys and counselors of the Supreme Court, and to forbid his practicing in any of the courts of this State. The proceeding was commenced early in March, 1904, by filing with this court a petition duly verified by one Frank 0. Bailey, of : Syracuse, if.

Appeal by the plaintiff, Allen L. Wood, from' a judgment of the County Court of Monroe county in favor of the defendant, entered in the office of the clerk of the county of Monroe on the 24th day off July, 1905, affirming a -judgment of a justice of the peace of the town of Brighton entered on the 1st day of February, 1905, dismissing the plaintiff’s complaint.

Appeal by the plaintiff, Lewis Stockton, from an order of the Supreme Court, made at the Erie Special Term, and entered in the office of the clerk of the county of Erie on the 2d day of June, 1905, denying the plaintiff’s motion for an injunction pendente lite.

Appeal by Frederick Cl J: Hoddick and another from an order of the Erie County Court, entered in the office of the clerk of the county of Erie on the 7th day of August, 1905, setting aside the service of an order for the examination of Charles S. Dawes, a third person, in proceedings supplementary to execution.

Appeal by 0. Clint Post from an order of the Surrogate’s Court of the county of Tates, entered'in said Surrogate’s Court on the 3d day of January, 1905, denying his motion for a new trial made upon the ground of newly-discovered evidence. The proceeding was instituted to obtain the admission to probate of an instrument propounded by the appellant as the last will and testament of Leonora Post Banks, deceased, and it Tesulted in a decree refusing probate thereof.

Appeal by Hora O. Hawley and another, as executors, etc., of William S. Hawley, deceased, from a decree of the Surrogate’s Court of the county of Monroe, entered in said Surrogate’s Court on the 25th day of February, 1905, in so far as said decree disallows to said executors as credits in their account an item of $379.25 interest paid by them on debts of the decedent, and an item of $285.89 paid by them to the widow of the decedent.

Appeal, by the defendant, the Rew York City Railway Company, from an order of the Supreme Court, made at the Rew York Trial Term and entered in the office of the clerk ■'of the county of Rew York on the 9th day of June,. 190.5, directing that the above-entitled action be placed upon the calendar as a preferred cause.

Appeal by the defendant, The City of New York, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 6th day of July, 1905, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant’s demurrer to the plaintiff’s complaint.

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

<p>Master and servant — discharge of the servant for a refusal to attend at the master's store at an hour specified.</p> <p>Where a traveling salesman’s contract of employment obligates him, when not traveling, to assist in his employer’s store, which opens at seven-thirty o’clock each morning, the refusal of the salesman to attend at the store at eight o’clock on mornings when he was not traveling is, as a matter of law, unreasonable and justifies his discharge.</p> <p>In such a case it is improper for the court to allow the jury to determine as a matter of fact whether or not the employer’s command was reasonable.</p>

<p>Park avenue, New York city — liability of the railroads Using it, resulting from, the erection of the railroad viaduct — testimony as to the value of property on neighboring streets—judgment, when reversed because incompetent testimony was admitted — when not.</p> <p>The liability of the New York and Harlem Railroad Company and of the New York Central and Hudson River Railroad Company to an owner of property abutting upon Park avenue, in the city of New York, for the 'damages sustained by him in consequence of the erection of a railroad viaduct in such avenue, is not affected by the fact that the viaduct structure is wholly within the lines of the subway in the avenue through which the roads of the railroad companies formerly ran. '</p> <p>Semble, that, in an action brought by such abutting owner to recover the damages sustained by him, it is improper to allow witnesses to testify, for the purposes v of comparison, as to the course of values of property on neighboring streets and avenues.</p> <p>Semble, that, where a judge presiding at the trial of an action at Special Term admits incompetent, evidence, an appellate court should, where the evidence was material and affected the result of the action, reverse a judgment rendered against the party offering such incompetent evidence, notwithstanding the declaration of the trial judge that he did not consider the incompetent evidence when deciding the case.</p> <p>Where, however, there is other evidence sufficient to sustain the judgment, it will not be reversed.</p>

Appeal by the plaintiff, Charles Pinsdorf, an infant, by 'Minnie. - Pinsdorf, 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 New York on the 31st day of October, 1904, upon '.the dismissal of the complaint by direction of the court after a trial at the New York Trial Term. . ■ .

<p>Appeal by the defendant, Charles A. Brown, from a judgment of the Supreme Court in favor of the plaintiff and against the defendants Duerr and Brown, entered in the office of the clerk of the county of New York on the 27th day of March, 1905, upon the verdict of a jury against said defendants rendered by direction of the court, but dismissing the complaint as to the defendant John Fleming, and also from an order entered in said clerk’s office on the 24th day of March, 1905, denying the appellant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendants, Mary M. Irvin, individually and as surviving executrix, etc., of Richard Irvin, Jr., and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 24th day of March, 1905, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the said defendants’ demurrers to the second amended complaint.</p>

<p>Appeal by the defendant, John F. Betz, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 28th day of February, 1905, upon the decision of the court, rendered after a trial-at the New York Special Term, overruling the defendant’s demurrer to the amended complaint.</p>

Appeal by the plaintiff, Sophie D, Sclioe'ller, from a' judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of- the county of Rew York on the 6th day of March, 1905, upon the dismissal off the complaint by direction of the court after á trial at the New York Trial Term. ■

Appeal by the defendant, George W. Lederer, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the : clerk of the county of Hew York on the 27th day of January, 1905, confirming the report of a referee, and also from an order entered in said clerk’s office on the 23d day of January, 1905, Overruling the defendant’s exceptions to the referee’s report and denying his motion to • vacate the order of reference herein, -

Appeal by the defendant, Charles J. Randall, individually and as administrator, etc., of John R. Dickerson, deceased, from an order of the Supreme Court, made at the New York. Special'Term and entered in the office of the clerk of, the county of New York on the 7th day of August, 1905, denying the said defendant’s motion to change the place of trial of the action from the county of New York to the county of Suffolk.

Appeal by the defendant, William Gilhooley, from a judgment of the Court of General Sessions of the Peace in and for the city and county of New York, entered on the 27th day of January, 1905, convicting him of the crime of subornation- of perjury, and also from an order denying the said defendant’s motion for a new trial and arrest of judgment.

> Appeal by the plaintiffs, Frank W. Dyer and others, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Yew York on the 30th day of March, 1905, upon the decision of the court, rendered after a trial at the Yew York Special Term, sustaintaining the defendant’s demurrer to the plaintiffs’ complaint.

Appeal by the defendant, John F. Betz, fi’om an interlocutory' judgment of the Supreme Court in favor1 of the plaintiff; .entered in the office of the clerk of the county of New York on the 28th day of February, 1905, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant’s demurrer to the amended complaint.

Appeal by the plaintiff, George A. Austin, as administrator, etc., of Emma May Flynn, deceased;, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk óf the county of New York on the 21st day of March, 1905,-upon the verdict of a jury rendered by direction of the ■ court, and also from an order entered in said clerk’s pffice on the 24th day of February,. 1905, denying the plaintiff’s motion for a new trial made upon the minutes. '

Appeal by the plaintiff, John Reilly, from a judgment of the Supreme Gourt.in favor of, the defendant, entered in the office of the clerk-of the county of New York .on the 16th day of March, 1905, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

Appeal by the plaintiff, Georgianna Dickerman, from.a judgment of the Supreme Court in favor of the defendant, The City of New York, entered in the office of the clerk of the county of New-York on the 21st day of January,'1905, upon the dismissal of the complaint by direction of the court after a trial .at the New York Trial Term.

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 New York on the 30th day of January, 1905, upon the decision of the court rendered after a trial at the New York Trial Term, a jury having been waived.

<p>> Objections to certificates of nomination —facts considered on an appeal from the board of elections—when the signatures of unregistered electors are effective.</p> <p>On the review of a determination of the board of elections of the city of New York, sustaining objections to a certificate of nomination and rejecting said certificate, the Supreme Court can consider only the facts presented to said board of elections.</p> <p>The signatures of unregistered electors to an independent certificate of nomination are effective if the time for them to register has not expired at the time they signed; if the time to register has- then expired, their signatures are ineffectual.</p>

AppeAl by the petitioner, William Hal pin, from an order of the Supreme Court, made at the New York Special Term and entered in the… Held: pursuant to regular call, on the 13th day of October, 1905, and Charles A. Flamrner, who was duly qualified to be a cam didate, was duly nominated for the office of district attorney, he having received 247 of the total number of 256 votes cast for that ' office, and William Travers Jerome having received the other 9, and their names…

Appeal, by the petitioner, Anthony J. Gulotta, 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, denying the petitioner’s motion to review the decision of the board of elections in rejecting his certificate of nomination for member of the board of aldermen.

Appeal by the defendant, the North German Lloyd Steamship Company,.from an order of the Appellate Term of the Supreme Court, reversing a judgment of the Municipal -Court of the city of New York, borough of Manhattan, in favor of the defendant, and granting a new trial of the action.

Appeal by the defendant, The II. B. Claflin Company, from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on . the 21st day of June, 1905, denying the defendant’s motion to strike the action from the equity calendar.

Appeal by the plaintiff, Charles Welde, 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 4th day of December, 1903, denying the plaintiff’s motion to amend the complaint by bringing in an additional party.

Appeal by the plaintiff, Margaret Laffan, as administratrix, etc., of William Laffan, deceased, from an order of the Supreme Court, made a't the New York Trial Term and entered in the office of the clerk of the county of New York on the 17th day of January, 1905, setting aside the verdict of a jury in favor of the plaintiff, and granting a new trial of the action.

<p>Specific performance—contract by a testamentary trustee to sell land to one person which the trustee subsequently conveys to another — service of the summons by publication.</p> <p>Where a- non-resident testamentary trustee, after making a. contract to sell land located in the State of New York to one party, from whom he receives a portion of the contract price, conveys the. property to a third party who has knowledge of the contract of sale, the contract vendee may maintain an action against the non-resident trustee and his grantee to compel specific performance of the contract of sale.</p> <p>Upon an appeal from an order denying the trustee’s application to vacate an order for the service of the summons upon him by publication, the question whether such service of the summons would confer jurisdiction upon the court to compel the non-resident trustee to convey the land will not be considered.</p>

Appeal by the defendants, George W. Peters and others, as executors, etc.,' of Edward B. Fellows, late of the city of New York, deceased, 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 28th day of March, 1905, permitting the amendment of the summons and complaint by striking' from the title thereof the words “ as executors of the last will and testament of Edward B. Fellows, late…

Appeal by the defendant, Henry K. Bush-Brown, 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 12th day of August, 1905, granting the plaintiff’s motion to'strike out certain allegations of the appellant’s answer as irrelevant and redundant.

• Appeal by the defendant, John J. Bush, 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 12th day of August, 1905, granting the plaintiff’s motion to strike out certain allegations of the appellant’s answer as irrelevant and redundant.

. Appeal by the plaintiff, David Kalmanowitz, from an order of the Supreme Court, made at the New York Special, Term and entered in the office of the clerk of the county of New York on the 10th day of July, 1905, adjudging the plaintiff in contempt of court for a failure to make payments of alimony as directed by a final judgment theretofore entered in the action.

Appeal, by the defendants, Arthur Schreier and another, from an order of the Supreme Court, made at the New York Special Term, and entered in tlie office of the clerk of the county of New •York on the 24th day of May, 1905, denying the defendants’ motion to cancel a judgment theretofore entered in favor of the plaintiffs.

Appeal by the defendants, Bernard Weinstein and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of July, 1905, denying the defendants’ motion to cancel a notice of pendency of action filed in said clerk’s office on the 3d day of June, 1905.

Appeal by the defendant, Elias L. M. Bristol, from so much of an order of the Supreme Court, made at the Hew York Special Term and entered in the office'of the clerk of the county of Hew York ón the 12th day of July, 1905, as denies the said defendant’s motion to resettle and correct a decision and an interlocutory judgment theretofore entered in the above-entitled action. .

Appeal by the plaintiff, Marie T. Dunn, as executrix, etc., of James A. Dunn, deceased, 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 8tli day of May, 1905, requiring the plaintiff to furnish a bill of particulars.

Appeal by Mitchell L. Erlanger, as sheriff of Hew York county, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 1st day of May, 1905, denying the appellant’s application to tax his fees upon an attachment theretofore issued in the action, and to direct the plaintiff or her attorney to pay the same.

Appeal by the defendants, Timothy D. Sullivan and another, from an order of the Supreme Court,' made at the New York Special Term and. entered in the office of the clerk of the county of New York on the 5th day of June, 1905, granting the motion of the defendant Sigmund Adler to vacate the dismissal of the complaint taken on the 3d day of May, 1905, and.the judgment entered thereon.

<p>Exemption from, execution—“professional instruments, furniture and library,” defined — candelabrum, desk and safe of an undertaker and embalmer -—what are exempt as “working tools”—a verdict' in the New York Municipal Court, “we find for the plaintiff in full,” set aside.</p> <p>The words “professional instruments; furniture and library,”, used in section 1391 .of the Code of Civil Procedure, exempting from levy under execution to the value of $350 “necessary household furniture, working tools and team, professional instruments, furniture and library,” should be read together, and are intended to preserve to a professional man the instruments, office furniture and library necessary to the pursuit of his profession; such provision does not apply to the office furniture and tools of an ordinary business man. The' word “professional,” as used in such provision, can relate only to some of those occupations usually classed as professions, the general duties and character of which the courts must be expected to understand j udicially.</p> <p>A candelabrum, desk and safe, owned by an undertaker and embalmer, are consequently not exempt from levy under execution as part of his necessary professional instruments and furniture. A candelabrum, necessarily used by the undertaker and embalmer at the funerals of persons of certain religious beliefs, are, however, exempt from levy under execution as part of his “ working tools. ”</p> <p>The safe, however, is not exempt from execution as part of the working tools or the necessary furniture of the undertaker and embalmer, and neither, it seems, is the desk. 1</p> <p>Where a verdict rendered in the Municipal Court of the city of New York, in an action to recover possession of a chattel not replevied, is simply, “we find for the plaintiff in full,” and does not conform to the requirements of section 120 of the Municipal Court Act (Laws of 1902, chap. 580), it is the duty of the court to set such verdict aside.</p>

Appeal by the defendant, Melinda P. Schmidt, individually, and as executrix, etc,, of Bache McEvers Schmidt, deceased, and as administratrix, etc., of George Parbury Pollen, deceased, from a final judgment of the Supreme Court in favor of the plaintiff and the defendant Fritz Leopold Schmidt, Jr., entered in the office of the clerk of the county of Hew York on the 14th day of January, 1905, nunc ¡pro tunc as of the 12th day of January, 1904, with notice of an intention to…

Appeal by the defendant, B. Sherwood-Dunn, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 5th day of October, 1904, upon the decision of the court rendered after a trial at 'the New York Special Term.

Appeal by the plaintiff, The F. J. Emmerich Company, from an interlocutory judgment of the Supreme' Court in favor of the defendant, entered in the office of the cleric of the county of Hew York on the 24th day of March, 1904, upon the decision of the court, rendered after a trial at1 the Hew York Special Term, sustaining the defendant’s demurrer to the plaintiff’s complaint.

<p>Election Law — directions to certificates of nomination—the fifteen-day limit is directory — action on certificates of independent nomination filed less than twenty days before election.</p> <p>The provision of the Election Law (Laws of 1896, chap. 909; § 56, as amd. by Laws of 1901, chap. 654; Id. § 66, subd. 1, as amd. by Laws of 1905, chap. 643) that the final order, in regard to objections, to certificates of nomination filed with the board of elections of the city of New York, must be made at least fifteen days before the election is directory and not mandatory, and a decision. made by such board of elections in the exercise of due diligence on the fourteenth day before the election with respect to objections to certificates of nomination is not ultra vires and may be reviewed by tlm courts. '</p> <p>The board of elections of the city of New York has power to act on certificates of independent nominations filed less than twenty days prior to the election.</p>

<p>Appeal by the defendant, William A.. Rogers, 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 tjie decision of the court, rendered after a trial'at the New York Special Term, sustaining the plaintiff’s demurrer to certain defenses contained in the answer of the said defendant Rogers.</p>

<p>Appeal by the defendant, the American Cigar Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 25th day of March, 1905, upon the.verdict of a jury, and also from an order entered in said clerk’s office on the 7th day of April, 1905, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the respondent, James H. Tully, as commissioner, of public charities of the city of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 18th day of May, 1905, granting the relator’s motion for a peremptory writ of mandamus requiring the said respondent to forthwith issue a certificate that the relator is duly employed as an examiner of charitable institutions of the city of New York at a salary of $1,200 per annum and to attach said certificate to the payroll for the months of January, ¡February, March, April, May and June, 1904.</p>