Volume 109 — New York Appellate Division Reports

Appeal by the defendant, Louis Minsky, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 30th day of November, 1904, upon the decision of the court rendered after a trial at the New York-Special Term.

<p>Specific stock—recovery of—final judgment must follow terms of interlocutory judgment.</p> <p>Where an interlocutory judgment in a partnership accounting provided,that the partnership be dissolved and that the plaintiff was entitled, to recover from the defendants jointly and severally certain shares of stock-together with divii (lends and interest thereon and in event of the defendants’ failure so- to transfer said stock they be adjudged to pay the value thereof, it is an adjudication that the plaintiff is entitled to the stock specifically. Therefore, a subsequent final judgment which gives to such defendants or their representatives the option to transfer the stock or pay the value, is in error and should be amended to require the delivery of the specific stock, or the payment of the value only in case the defendants, without fault, are unable to transfer such stock.</p>

<p>Payment —presumption, thereof through lapse of time — error, in excluding evidence.. '</p> <p>Irrespective of the Statute of Limitations, a long outstanding claim, with other evidence of payment, may be presumed to be paid unless contrary reasons be shown. There is no' presumption of law, hut it is a question for the jury on ■ _ all the facts. .</p> <p>Where the plaintiff, suing on a claim twenty-four years old, has introduced the deposition of defendants’ former bookkeeper, who had no personal knowledge of the transaction, showing that the account stood unpaid upon the defendants» books, it is error to exclude the abstract of an expert accountant, since deceased, showing that the account was closed, when such books are proved to have been lost and.the accuracy of the abstract is-shown by other evidence. Held, further, that the verdict for the plaintiff was against the weight of evidence. \</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 defendants, Louis Pincus and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in. the office of the clerk of the county of New York on the 27th 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 26th day of January, 1905, denying the defendants’ motion for a new trial made upon the minutes.

<p>Power of attorney ceases with death of principal—facts insufficient to show interest of attorney in subject-matter.</p> <p>A power of attorney to draw money,, when not coupled, with an interest in the attorney, ceases at the death of the principal, and a payment to such attorney does not bind the estate of the principal, although the depositary was ignorant of the death Of the principal at time of payment.</p> <p>A power of attorney,, to survive death of principal, must be given on consideration and the donee must be vested with some estate, right or interest.</p> <p>The mere delivery of a bankbook to the attorney by the principal is insufficient' to show a gift. .</p> <p>Evidence, insufficient, to establish an interest in an attorney or to create a trust, considered.</p>

Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the. office of the clerk of the county of Rew York on the 27th day of December, 1904, upon the verdict of the jury for $5,000, and also from an order entered in said clerk’s office on the 29th day of December, 1904, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Toluca Electric, Light and Power Company, from ,an order of the Supreme Court, made at the New . York Special Term and entered in the office of the clerk of the county of Bew York on the 26th day of August,. 1905, adjudging the said defendant, its officers and agents in contempt of court.

Appeal by the defendant, Clinton L. Eossiter, 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 ISTew York on the 5th day of September, 1905, adjudgingxthe said defendant guilty of contempt in failing to comply with the provisions of an interlocutory judgment theretofore entered in the action.

Appeal by the defendants, Clinton L. Rossiter 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' 28th day of August, 1905, denying the defendants’ motion to stay the ..plaintiffs’ proceedings under an interlocutory judgment.

Appeal by the plaintiff, Ida Frank, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 28th day of February, 1905, upon the dismissal of the complaint by direction of the court ' after a trial at the Hew York Trial Term.

<p>Stock purchased on margin ^ when purchaser not entitled to recover - profits made by a broker delivering stock obtained at lower price.</p> <p>When stock is purchased through brokers on a margin, the brokers are not required to- retain the identical stock purchased, nor is the-purchaser'entitled to receive the identical stock. Hence, when such purchaser orders a subsequent delivery of the stock and pays for the same at the contract price, he is not entitled to recover a profit'the brokers have made through being able .to secure the stock actually delivered at a lower figure owing to a fall in the market.</p> <p>It seems, that if plaintiff retains the stock delivered and does not rescind the transaction, it is immaterial whether the brokers had the stock purchased for the plaintiff actually delivered to them at the time they reported the order executed. Under such circumstances no damage is shown.</p>

Appeal by the defendant, Adelia D. Ireland, 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 15th day of December, 1904, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 4th day of January, 1905, _ denying the defendant’s motion for a new trial made upon the minutes. .

Appeal by the defendant, The H. & H. Manufacturing Company, from an ordér 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 20th day of July, 1905, continuing a preliminary injunction theretofore issued in the action.

<p>Bailment—liability of shopkeeper for property of customer which is stolen on the premises.</p> <p>A shopkeeper is a voluntary custodian for profit of clothing and a watch attached thereto taken off by a customer who is trying on other clothing, and the customer may recover the value thereof if stolen, in the absence of proof of proper care by the shopkeeper.</p> <p>Ingraham and Clarke, JJ., dissented.</p>

<p>Amendment to complaint — when new allegations will not be stricken out as immaterial.</p> <p>The allowance of an'amendment to a complaint is not an adjudication as to the materiality or effect of evidence that may be introduced thereunder, and thus the" new allegations will not be stricken out as immaterial or irrelevant if they relate to the cause of action stated in the complaint.</p>

<p>Contempt of court — order adjudging one in contempt obtained by defunct corporation.</p> <p>When a foreign corporation is dissolved by judicial decree and a permanent receiver is- appointed, it ceases to- exist, and an order obtained subsequent to such dissolution decre'eing an executrix to be in contempt for failure to obey a direction to pay over moneys to said corporation should -be set aside.</p>

Appeal by the. plaintiff, Drayton Burrill, as trustee- under the 'will of Mary E. Bogert, deceased, and under the will of James L. Bogert, deceased, for Mary A. Steward, from so much of an order of the Supreme Court, made at. -the Dew York Special Term and entered in the office of the clerk of the county of Dew .York on the 17th day of June, 1905, as allows the payment of any ' sum of money to St. Matthew’s Doman Catholic Church, and imposes the payment thereof to be…

Appeal by the defendant, Louis Manheim, 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 18th day of July, 1905.

<p>Appeal by the defendant, Acker, Merrall & Condit Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 28th day of February, 1905, upon the decision of the court, rendered after a trial at the FTew York Special Term, granting the plaintiff’s-motion for. an injunction.</p>

Appeal by the defendant, Supreme Lodge of the Knights and Ladies of the Golden Star, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 12th day of December, 1904, affirming a judgment of the City Court of the city of New York in favor of the plaintiff, entered on the 16th day of May, 1904, upon the verdict of a jury rendered by direction of the court, and an order of said City Court denying the…

Appeal by the defendant, The Hew York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 22d day of December, 1904, upon the verdict of a jury for $1,200, and also from an order entered in said clerk’s office 'on the 11th day of January, 1905, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the New York City Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of-the clerk of the county .of New York on the '9th day of December, 1904, upon the verdict of a jiiry for -$5,000, and also from an order entered, in said clerk’s office on the 9th day Of December, 1904, denying the defendant’s motion for a new'trial made upon the minutes.

Appeal by the defendant, Edward A. Meckel, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of June, 1905, enjoining and restraining the defendant during the pendency of the action and until the further order of the court from continuing in the employ of the Marine Ice Company in the business of selling ice within the corporate limits of the State of New York and from…

<p>Appeal by the defendants, Edgar W. Burns 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 7th day of March, 1905, upon the decision of the court rendered after a trial at the Erie Special Term.</p> <p>The action was commenced in July, 1903, to recover the amount claimed to be due to the plaintiff as the widow of John C. Burns, deceased, upon a certificate or policy of insurance issued upon hii life to ■ him, payable' to his “ heirs,” by the Knights Templars and Masonic Mutual Aid Association, a foreign corporation, organized and existing under the laws of Ohio and having its principal office and place of business in that State. By. agreement of the parties and for their convenience the amount of the certificate, $3,000* was deposited with the defendant bank to await the final decision of this action, and no personal claim is made against it or against the insurance association. The defendants, other than the' bank, are the children of John O. Burns, deceased,, and claim tc be his only “heirs;.” that the plaintiff, the widow, is not an heir within the language of the- policy or the intent of the parties, and, therefore, that they are entitled to the whole of said insurance. The learned trial court determined that the plaintiff was entitled to one-third of said $3,000 “ under the Statute of Distribution of the State of Hew York* as in cases of intestacy ” besides costs. Judgment was entered accordingly and from it this appeal is taken.</p>

<p>Accident insurance — death of insured through inhaling gas — when insurer not liable under terms of policy.</p> <p>Where an accident insurance policy in express terms relieves the insurer from liability for bodily injuries or death resulting from the “ voluntary or involuntary inhalation of any gas or any anaesthetic,” a nonsuit should be granted in an action by the beneficiary, when it is conceded that the insured met his death from gas inhaled in an hotel. This is so, even though the inhalation oi-gas was not voluntary, for the policy expressly so provides.</p> <p>Williams and Nash, JJ., .dissented.</p>

Appeal by the defendant, Joseph Nellis, as administrator, etc., of Wilbur F. Porter, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of. the clerk of the county of Jefferson on the 13.th day of January, 1905, upon the verdict of a jury ; also from an order bearing daté, the 9th. day of January, 190'5,. and entered in-said clerk’s office^ denying , the said defendant’s motion for a new trial made upon the minutes, and also from…

Appeal by the defendant, Eugene A. Georger, from an order of the Supreme Court, made at the Erie Special Term on the 22d day of May, 1905, and -entered in the office of the clerk of the county of Erie, denying the defendant’s motion to' change the ydace of trial of nine indictments against him from the cou’nty.of Erie to some other county.

Appeal, by the defendants, Hannibal Gray and others, as the-board of assessors of the village of Yorkville, in the county of Oneida, New- Yórk, from a judgment of the Supreme Court in-favor of the relators, - entered in the office' of the: clerk of -the county of Oneida on the 7th day of June, 1905, upon the decision of the court, rendered aft dr a trial at the. Oneida Special Term, Vacating and setting aside an assessment against the relátórs’ property.

Appeal by. the defendants, Albert Hoyt and others (doing busimess under the name of “The Carthage Lumber Company”), from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county óf, Herkimér on the l'Tth day of September, 1904, Upon the report of a referee.

Appeal by the defendant, Charles'R. Palmer, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Riagara on the 6th day of April;-.1905, upon the verdict of a jury rendered by direction of the court after a trial at the Riagara Tri,al Term.

Appeal'by the plaintiffs, Clarence O. Bigelow and others,.'as and constituting the State Board of Pharmacy, from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Jefferson on the.5th day of July, 1905, denying the plaintiffs’ motion to open' ¡default as a matter of right, ,

Appeal by the defendant, The Solvay Process Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondag'a on the 20th day of May, 1905, upon the verdict of a jury for $550, and also from an Order entered in said clerk’s office on the 19th day of May, 1905, denying the defendant’s motion for a new trial made upon the minutes. . .

Appeal by the defendant, the New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Wayne on the 11th day of April, 1905, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the lltli day of April, 1905, denying the defendant’s motion for a new trial made upon the minutes, with notice, of an intention to bring up -for…

<p>Liquor Tax Law—form, of indictment—not necessary to allege kind of liquor sold.</p> <p>An indictment, charging a violation of section 31 of the Liquor Tax Law, which states that the defendant sold “certain liquors in quantities less than five gallons at a time" against the form of the statute, etc., is good; and the indictment need not allege the kind or quantities of liquor sold, as the statute itself defines the term “liquors^”</p>

<p>Stay of proceedings on failure to páy costs of nonsuit — action under Employers’ Liability Act and action at common law for same injury identical.</p> <p>Where costs have been awarded against a plaintiff on a nonsuit and ón an unsuccessful appeal therefrom, and the plaintiff, without paying said costs, has been permitted to bring a new'action asa poor person for the same cause, the court, on setting aside the leave to .sue as a poor person with permission to renew, should also stay plaintiff's proceedings until such costs are paid.</p> <p>Though the first action was under the Employers’ Liability Act and the second is at common law, the remedy sought in each action, is the same and they are not different actions.</p>

<p>Additional security for costs after judgment dismissing complaint.</p> <p>Where a non-resident plaintiff has been required to give security for costs under section 3272 of the'Oode of Civil Procedure, and an appeal is pending from a judgment, dismissing the complaint, the court has discretionary power to require additional security pending the appeal. The additional security contemplated by section 3276 of the Code of Civil Procedure is not limited to actions, in which no judgment has been rendered.</p> <p>Circumstances under which additional security required is not excessive, stated.</p>

Appeal by the defendant, the Retsof Mining Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Richmond on the 26th day of November, 1904, upon the decision of the court rendered after a trial before the court without a jury at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 5th day of December, 1904, granting the plaintiffs an extra allowance. -

<p>. Appeal by the defendant, Isabel H. Gerry, -from a judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of the "county of Westchester on the 26th day of November, 1904, upon the decision of the court rendered after a trial at the Kings County Special Term.</p>

<p>Appeal by the defendants, The McConnell Manufacturing Company and others, from-an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 10th day of January, 1905, denying the said defendants’ motion for a retaxation of costs.</p>

Appeal .by John H. McCooéy and Others, as executors, etc., of George W. Donohue, deceased, from a decree of the Surrogate’s ■ Court of the county of Kings, entered in said Surrogate’s Court on the 23d day of January, 1905. '

Appeal by the defendant, Thomas J. Smith, as administrator, etc., of Joseph McYey, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk oí the county of Kings on the 12th- day of December, 1904, upon the report of a referee.

Appeal by the defendant, Nathaniel Tonkin, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of. the plaintiff, entered on the 13th day of January, 1905. '

Appeal by the defendants, Albert L. Woarms and another, copartners doing trade and business tinder the firm name of style of D. S. Hess & Co., from a judgment of the County Court of Queens county in favor of the plain tiff, entered in the office of the clerk of the county of Queens on the 24th day of October, 1904, upon the verdict of a jury.

Appeal by the defendant, Carmelia Rogers, from a judgment of the Municipal Court of the city of New York in favor of the plaintiff, entered in the office of the clerk of said court on the 6th day of December, 1904.

Appeal bv. the defendant, the Hew York Central and Hudson River Railroad Company, from a judgment of the Municipal Court of the city of Hew York,, borough of Queens, in favor of the plaintiff, entéred in the office of the clerk of said court on the 4th day of February,. 1905, upon the decision of the court rendered after a trial before the court without a jury.

<p>Bond of auctioneer —when no redress against surety.</p> <p>The bond.required of auctioneers in cities Of 1,000,000 inhabitants (Lavra of 1897, chap. 682) is intended to protect individuals who have intrusted property ' to an auctioneer for sale, and to protect the municipality against violations of , its regulations concerning, auctioneers,' It has no relation to the purchase and ;• sale of property by an auctioneer .on his own account.</p> <p>Hence, when an auctioneer purchases mortgaged property of the mortgagor and \ sell's it at auction for his own profit, the mortgagee has no redress against the. ! surety of the auctioneer.</p>

Appeal by the defendant, the Metropolitan Life Insurance Company, from a judgment of the Municipal Court in favor of the plaintiff, entered in the office of the clerk of said court upon the verdict of a jury rendered by direction of the court.

<p>Negligence — obstruction in city street—absence of warning light.</p> <p>When plaintiff’s automobile was injured at night through driving against a manhole standing above the level of‘a street which was being graded', he must show, in order to recover against the municipality, that the city had actual notice of the fact that a light previously placed oh the-manhole by a foreman had been removed.</p> <p>The absence of such light was the proximate cause of the -injury, as a'municipality need not dose a highway because of a single obstruction.</p>

Appeal by the defendant, Leopold Gajly, 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 25tli day of June, 1904, upon the verdict of a jury for $500, and also from three orders entered in said clerk’s office on the 28th day of June, 1904, respectively denying the defendant’s motions to disr miss the complaint - and his motion for a new trial made upon the minutes. 1-

<p>Appeal by the defendant, The Hew York Central and Hudson River Railroad Company, from a. judgment of the Supreme Court in favor of the plaintiff, entered in- the office of the clerk qf the county of Oswego on the 7th day of January, 1905, upon the verdict of á jury for $2,500, and also from an order' entered in said clerk’s office on the 7th day of January, 1905,. denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, The Buffalo Union Furnace Company, 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 10th day of February, 1905, upon the verdict of- .a jury for $5,000, and also from ail 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. • .</p>

<p>Tax Law — proper distribution of assessments on bank stock located in cities — school and village districts as tax districts.</p> <p>The sums assessed and collected on shares of stock of banks located in the city of Utica should be paid to such city and should not be apportioned to the county.</p> <p>School and village districts, though not' conforming to the definition of “ tax districts ” given in section 2 of the Tax Law, are included as such in the section of the Tax Law governing the distribution of assessments on bank stock.</p> <p>Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Oode of Civil Procedure.</p> <p>The controversy arises over the disposition of $8,734.45 of taxes collected upon capital stock of banks situated in the city of Utica, each party making claim thereto.</p>

<p>Appeal by the plaintiff, .The American Seeding Machine Company,. from a judgment of the County Court of Cattaraugus county iñ favor of the defendants, entered in the office of the clerk of the county of Cattaraugus on the 16th day of June, 1905, upon a non-suit granted by fhe court.</p>

Appeal by John P. Williams 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 August, 1905, directing a reference.

<p>‘Contract to buy coupon railroad tickets — waiver of conditions therein.</p> <p>Plaintiff’s, assignor, a navigation company, entered into a contract with the defendant and, among other things, agreed to sell coupon tickets over defendant’s railroad, to pay for the same at the rate of forty-five cents each, and to purchase and pay for at least 3,000 tickets per day and 180,000 tickets in the aggregate. To secure the performance of the contract the navigation company deposited §5,000 with the defendant. The navigation company failed, through lack of business, to purchase 3,000 coupons daily or the aggregate required, and informed defendant that it could not go on under that part of the agreement. The defendant replied in writing that though there was “ no time to further modify a written contract entered into months ago,” etc., the navigation company could depend upon fair treatment on final settlement. The letter further stated that henceforth the charge for tickets must be fifty instead of forty-five cents each “ as the forty-five cent rate was a special concession on the theory that you were to carry out the written contract.” Thereafter the navigation company paid for tickets at the fifty-cent rate.</p> <p>Meld, that said letter was a waiver of the terms of the contract requiring the purchase of 3,000 tickets daily or the aggregate stated, and that such waiver was supported by a sufficient consideration;</p> <p>That plaintiff was entitled to recover the §5,000 security, less the amount owing by the navigation company for tickets actually bought but not paid for.</p> <p>Meld, further, that interest could only be recovered from the date of action, as proof of demand was insufficient.</p>

Appeal by the defendant, the New York and Queens County Railway Company, from a.judgment of the Municipal Court of the city of New York, borough of Queens, in favor of the plaintiff, entered on the 20th day of October, 1904.

Appeal by the plaintiff, Simon Hoch, from a judgment of the Municipal Court of the city of Hew Pork, borough of Brooklyn, in favor of the defendant, entered on the 26th day of October, 1904.

<p>Appeal by the defendant, the Brooklyn Trust Company; as executor, etc., of Mary F. Raymond, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 2d day of December, 1903, upon the verdict of a jury, and. also from an order entered in said clerk’s office on the 4th day of December, 1903, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, The Frontier Telephone Company, 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 10th day of April, 1905, upon the decision of the court rendered after a '-trial before the court without a jury at the Erie Trial Term.

Appeal by the plaintiff, Elizabeth Faith, as administratrix, etc., of John W. Faith, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Onondaga on the 13th day of September, 1904, 1 upon a nonsuit granted by the court after a trial at the Onondaga Trial Term, a verdict by the jury having previously been rendered in favor of the plaintiff. ’ The action was begun under the Employers’ Liability Act, so…

Appeal by the defendant, the Pennsylvania 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 Monroe on the 20th day of February, 1905, upon the report of a referee.

Appeal by .the . defendant, the American Construction and. Trading Company, from a judgment of the Supreme Court in-favor of the plaintiff, entered in the office of the cleric of the county of Seneca on the 28th'day of. February, 1905, upon the verdict of a jury for $5,000, and also from. an order entered in said' 'clerk’s office on the same day, deiiying the defendant’s motion for a new trial made upon, the minutes.

Appeal, by the defendant, Isaac H, Sonn, from a judgment of the „ Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Wyoming on the 17th day of March, 1905, upon the report of a referee '

<p>Appeal by the defendant, The City of Yonkers, from an order of the Supreme Court, made at the Westchester Special Term arid •entered in the office of the clerk of the county of Westchester on the 25th day of July, 1905, denying fhe defendant’s motion to amend an order and judgment theretofore entered upon a remittitur from the Court of Appeals. ■ -</p>

Motion to dismiss an appeal taken by Otto Kelsey, as State Comptroller of the State of Hew York, from an order of the Surrogate’s Court of the county of Westchester, entered in said Surrogate’s Court on the 28th .day of June, 1905, reversing an order assessing a transfer tax.

Appeal by the defendant, The Equitable Life Assurance Society of the United States, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 16th day of June, 1905, upon the decision of the court, rendered after a trial at the Nassau Special Term, overruling the said defendant’s demurrer to the amended complaint, and also from an order entered in said clerk’s office on the 5th day of…

Appeal by the plaintiff, James J. Seeley, from an order, made by a justice of the Supreme Court and entered in the office of the clerk of the county of Kings on the' 8th day of August, 1904, denying the plaintiff’s motion to vacate an order for his examination in supplementary proceedings, and also from an order entered in the office of the clerk of the county of ¡Nassau on the 10th day of August, 1904, appointing a receiver in said proceedings.

Appeal by the plaintiff, Anton L. Olsen, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queéns on the 29th day of December, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of January, 1904, denying the plaintiff’s motion for a new trial made upon the minutes.

• Appeal by the defendant, 0. Amory Stevens, as trustee, from so much of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 27th day of, December, 1902, upon, the report of a, referee, as adjudges that the plaintiff reóover from the defendant the sum of $540 with interest thereon.

Appeal by the defendant, Paul Salvin, 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 Hay, 1904, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 3d day of June, 1904, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by Samuel Jacobs, as executor, etc., of Yetta Jacobs, deceased, from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court' on the 6th day of April, 1905, allowing the respondent’s claim.

Appeal by the relator, August Silz, from an order of the Supreme Court, entered in the office of the clerk of the county of. Kings on the‘16th day of June, 1905, quashing a writ of habeas corpus. •

Appeal by the defendant, the Supreme Council, American Legion of Honor, from a judgment of the Supreme Court in favor of the plaintiff, entered.in the office of Abe clerk of the county of Kings on the 10 th day of May,' 1904, upon the decision of the court rendered -after a /trial at the Kings County Special Term.

<p>> Appeal by Ezekiel J. Elting, as executor, etc., of Aslan Saliagian, deceased, from an order of the Supreme' Court, made at. the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 27th day of March, 1905, denying his motion for a resettlement of an order entered in said clerk’s office on the 6th day of January, 1905, and also from the said original order. - -</p>

Appeal by the plaintiff, Michael Bannon, from a' judgment of the County Court of Erie county in favor of the defendant, entered in the office of 'the clerk of the county of Erie on the 25th day of August, 1904, upon the verdict of a jury, and also from-an'order entered in said clerk’s, office on the 8th day of July, 1904, denying the plaintiff’s motion for a new trial made, upon the minutes.

Appeal by the defendant, the Utica Steam and Mohawk Valley Cotton 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 11th day of March, 1904, upon the verdict of a-jury for $2,500, and also from an order entered in said clerk’s office on the 15th day of March, 1904, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, The City of Oswego, from a judgment of the Supreme Court in favor of the plaintiff, entered iñ the office of the clerk of the county of Oswego on the 4th day of February, 1905, upon the verdict of a jury for $500, 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. -</p>

<p>Appeal by the defendant, The Lackawanna Steel Company, 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 thé 22d day of March, 1905, upon th,e verdict ■ of a jury for S^OO, and also from an order entered in said clerk’s office on the 23d day of March,' 1905, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, The Syracuse, Binghamton and New York 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 Onondaga on the lltli day of April, 1904, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office . on the 20th day of April, 1904, denying the said defendant’s motion for a new trial made upon the minutes.

<p>Highway Law — town not liable for,damage through obstruction of sluice under highway — erroneous charge.</p> <p>The liability of towns for obstructions in the highway exists only by virtue of Statute (Highway Law, § 16) and is based solely on the. negligence of the • highway commissioner and not on the negligence of the town. The omissions of a commissioner, for which the town is liable, are only those which interfere with travel on the highway. Hence, an adjoining Owner, whose lands-.are ■ flooded through the stoppage of the sluice beneath the highway, has no cause of action against the town.</p> <p>A charge which leaves the construction or application of said Highway Law to the jury as one of the questions involved is erroneous:</p> <p>McLennan, P. J. (with .whom Spuing, J., concurred), dissented,.with opinion.</p>

Appeal by the plaintiff, The People’s Bank of Buffalo, from a judgment of the Supreme Oourt in favor of the defendant Cushman, entered in the office of the clerk of the county of Erie on the 27th day of March, 1905, upon the decision of the court, rendered after a trial at the Erie Special Term, dismissing the complaint upon the merits.

Appeal by the defendants, George H. View and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oswego on the 13th day of June, 1905, upon the decision of the court rendered after a trial at the Oswego Trial Term, certain questions of fact having been submitted to a jury; also from an order entered in said clerk’s office on the 3d day of April, 1905, denying the defendants’ motion for a new trial, and…

' Appeal by the defendant, the.Syracuse. Rapid Transit Railway Company, from a judgment of the Supreme Court -in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 29th day of April,. 1905, upon the verdict of a jury for $1,000; also from an order entered in said clerk’s office on the 5th day of May, 1905, denying, the defendant’s, motion for a new trial made upon the minutes, and also from an- order entered in said clerk’s office on…

Appeal by the defendant, George W. Fries, from an interlocutory judgment of the Supreme Court in favor of the relator, entered in the office of the clerk of the county of Allegany on the 14th day of November, 1904, upon the decision of the court, rendered after a trial at the Allegany Special Term, overruling the defendant’s demurrer to an alternative writ of mandamus theretofore issued on behalf of the relator.

Appeal by the plaintiff, Nora O’Connor, from a judgment of the Supreme Court in favor of the defendant, Patrick Hendrick, as sole trustee, etc., entered in the office of the clerk of the county of Livingston on the 3d day of April, 1905, upon the decision of the court rendered after a trial at the Livingston Trial Term, a jury having been waived.

Appeal . by the plaintiffs,. William A. Bradshaw and another, as executors, etc., of Robert C. Bradshaw, deceased, from a judgment of'the Supreme Court in favor of the plaintiffs, entered in the office of the- clerk of the county of Chautauqua on the 13th day of March, 1905, upon the decision of the court rendered. after a trial at the Chautauqua Trial Term, a jury having been waived.

<p>Appeal by the defendants, Fred A. Bobbins and others, as the board of police commissioners of the city of Hornellsville, N". Y., from a judgment of the Supreme Court in favor of the relator, entered in the office of the clerk of the county of Steuben on the Í7th day of June, 1905, upon an order entered in said clerk’s office on the 20th day of J une, 1905, directing the issuance of a peremptory writ of mandamus, and also from the writ of mandamus issued in pursuance of said order and entered in said clerk’s office on the 20th day of June, 1905.</p>

<p>Appeal by the defendants, the Herkimer Lumber Company and others, from an order of the Supreme Court, made at the Herkimer. Special Term and entered in the office of the clefk of the county of Herkimer on .the 19th day of September, 1905, denying the defendants’ motion for a jury trial Of certain issues..</p>

<p>Appeal by the defendant, The Preferred Accident Insurance Company 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 Erie on" the 27th day of January, 1905, upon the verdict of a jury, and also from an order entered in said clerk’s office -oh the 2d day of February, 1905, denying the defendant’s motion for a new., trial made upon the minutes. "</p>

Appeal by the defendant, Edward B. Judson, as administrator, etc., of Myron C. Merriman, deceased, 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 12th day of October, 1904, upon the report of a referee. of a jury for $600, and also from an order entered in said clerk’s office on the 18th day of April, 1905, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The New York Central and Hudson Biver Bailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of tlie clerk of the county of Oneida on the 25th day of March, T905, upon the verdict'

<p>Trust mortgage — when, vitiated by power of mortgagor to, dispose of the property — bankruptcy — rights of general creditors superior tó lien ■ of bondholders secured by such mortgage —■= lien of bondholders not created by possession of property by trustee—when general creditors need not reduce claims to judgment -^- rights of trustee in bankruptcy.</p> <p>When a trust mortgage covering all the property of a corporation executed to secure 'its bonds contains a provision that the mortgagor has power “to have, hold, use, possess and enjoy” the mortgaged property then owned or thereafter acquired and “ to receive the income and profits thereof to its own . use and'benefit,” etc.,. it vitiates the" mortgage as against the Claims of other Creditors of the mortgagor, as the mortgagor may apply its property together with after-acquired property as it pleases without regard to the mortgage1.</p> <p>Hence, the right of a trustee of such corporation in bankruptcy to the mortgaged property is superior to the lien of .the bondholders' or their trustee authorized to take possession under the mortgage. .</p> <p>Though, as between the mortgagor and the bondholders, a court of equity will xiphoid such vitiated mortgage, it is not so when the rights of other unsecured creditors have intervened,</p> <p>The fact that the trustee for such bondholders" obtained possession of the proceeds of the mortgaged property before levy or execution by other creditors does not, in equity, establish a lien in favor of such bondholders, for their trustee was responsible for the vice in the mortgage which allowed the mortgagor to dispose of the property without restraint. j.</p> <p>A trustee in bankruptcy may bring action to secure the rights of general creditors, although their claims have not been reduced to judgment.</p> <p>Nash, J.; dissented.</p>

Appeal by the defendants,, the Tillage of Glen Park 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 Jefferson on the-17th day of December, 1904, upon the decision of the court, rendered after a trial at the Jefferson Special Term, granting an injunction and other relief.

Appeal by the plaintiff, Polly A. Hood, as administratrix, etc., of Isaac Hood, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Genesee on the 9th day of January, 1904, upon the dismissal of the complaint by direction of the court after a trial at the Genesee Trial Term, and also from an order entered in said clerk’s office on the 9th day of January, 1904, denying the plaintiff’s motion for a new…

Appeal by the plaintiff, the Knickerbocker Trust Company,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 28th day of June, 1905, denying the plain tiÉ’s motion for a bill of particulars. '

<p>Appeal by the defendant, The City of Fulton, from ah interlocutory judgment of 'the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oswego on the 19th day of June, 1905, pursuant to an order entered in said clerk’s office on the 19th day Of June, 1905, overruling the defendant’s demurrer to the complaint, and also (as stated in the notice of appeal) from the said order pursuant to which the judgment appealed from was entered.</p>

Appeal by the defendant, The Board of Estimate and Apportionment of the City of Hew York, 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 28th day of June, 1905.

Appeal by the defendant, the Union Salt Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Schuyler- on the 26th day of April, 1905, upon the decision of the court rendered after a trial at an adjourned term of the Schuyler Special Term. This plaintiff is the trustee in- a mortgage executed by the defendant to secure an issue of 200 bonds of the par value of $500 each.

<p>Appeal by the plaintiffs, Augustus S. Fitch and others, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Delaware on the 10th day, of January, 1905, upon the decision of the court rendered after a trial at, the Delaware Tidal .Term, the jury having been discharged.</p>

Appeal by the defendant, John Weidler, 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 17th day of October, 1904, upon the verdict of a jury, and also from an order bearing date the 3d day of October, • 1904, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the - .defendant, the Central Vermont Railway Company, from a judgment of the Supreme Court in favor- of the plaintiff, entered in the office of the clerk of the county of Clinton on the 13th day of April, 1905, upon the verdict of a jury-for-$7,000, and also from an order bearing date the 12th day of April, 1905, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

<p>City of Elmira — common council cannot authorize construction of garbage crematory without submitting question to voters.</p> <p>The provisions of section 31 of the charter of the city of Elmira limit the current expenses authorized to be incurred by resolution of the-common council to §175j000, excepting sums necessary to pay interest and principal due on municipal bonds and other liabilities of the city. Any extraordinary or special-expenditures not in the opinion of the common council payable out of the sums authorized by said section, or which .aise the municipal expenditures above §175,000, can only be made after submitting the question, to the qualified voters of the city as required by section 71 of said charter.1 The building of a garbage crematory by said city, and the purchasing of a sité therefor is an extraordinary and special expense and cannot be authorized by said common council or paid for as a current expense under said section 31 of the charter, but can only be authorized by a favorable vote on such expenditure by the qualified voters of the city.</p> <p>An injunction lies on behalf of the taxpayers of said city to restrain the common council from making payments on such unauthorized contract for the erection of a garbage crematory or from doing any act in- further performance thereof.</p>

<p>Appeal by the defendant, Charles L. Jenkins, from a judgment of the County'Court of Warren county in favor of the plaintiff, entered in the office of the clerk of the county of Warren on the 20th day of June, 1904, upon an order bearing date the 16th day of November, 1903, affirming a judgment of the Justice’s Court theretofore entered in the action, and also from the said order upon which the judgment appealed from was entered.</p>

<p>| Appeal by the defendant, the Hudson River Telephone 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 2d day of June, 1905, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 18th day of May, 1905, denying the defendant’s motion for-a new trial made upon the minutes.</p>

<p>Appeal by the defendant, the New York Evening Post Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 24th day of April, 1905, upon the decision of the court, rendered after a trial at the Hew York Special Terra, overruling defendant’s demurrer to the complaint.</p>

<p>Appeal by the plaintiff, Cornelius E. Byrne, and by the defendant, Arthur Byrne, from a judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of Hew York on the 22d day of April, 1903, 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 23d day of January, 1903, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

<p>Broker’s contract for commissions — error in charge taking question from jury — right of counsel to refresh witness’, recollection as to contents of letter not produced on notice — when contract for commissions superseded by subsequent contract — when complaint sets out prior contract, .no recovery on quantum meruit under subsequent contract.</p> <p>When there is a question as to whether a .prior contract of brokerage to procure a purchaser for lands was superseded by a second and different contract evidenced by the correspondence of the parties, and the defendant has served the plaintiff with notice to produce a letter sent by said defendant which the plaintiff fails to do, it is error for the court to refuse to allow defendant’s counsel to refresh his recollection as to the contents of the letter by suggesting a specific subject (the rate of commissions to be paid) and asking whether it was referred to therein.</p> <p>When, in such action by a broker for commissions, the defense gives evidence ■tending to show that commissions were 'not to be paid until the passing of title to the purchaser, and the court charges, ‘ ‘ I should be surprised to have you bring in a verdict upon that point," etc., it is error. Su'ch charge must be construed as substantially withdrawing a question which defendant was entitled to have submitted or as directing the jury to find for the plaintiff on that question. ' •</p> <p>The original contract of brokerage, made at a time when the defendant held his property at $100,000, provided for a five per cent commission for the broker. Failing, for some time, to make a sale, the broker wrote defendant asking if he was still willing to offer the property on the same terms. Defendant replied by letter that he did not recall the terms of the former contract, but would now offer the property at $50,000, but said nothing about rate of commissions.</p> <p>Held, that such reply was in effect a notice that the rate of commissions under the old contract was withdrawn and that the conduct of both parties showed that said prior contract was considered as superseded,- and that the broker, in ■effecting a subsequent sale of the lands at §45,000, would be entitled to recover .only on a quantum meruit, as the new contract was silent as to the rate-of commissions. But that as plaintiff had only set out the first contract for five per •cent commissions, he could not recover as for a quantum meruit under the second contract.</p> <p>Under such circumstances it is error for the court to -refuse tó charge that-the subsequent letter of defendant to the plaintiff took the -place of any prior agreement and was the only one to be relied upon.</p>

<p>Appeal by the plaintiff, Sarah Jane Flaherty, 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 27th day of May, 1904, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.</p>

<p>Appeal by the plaintiff, James Talcott, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of f he-county of New York on the 12th day of May, 1904, Upon ¡the decision of the court, rendered after á trial before the court without a jury at the New York Trial Term, dismissing the complaint as upon the merits as to the first cause of action.</p>

<p>Mechanic’s lien — when same may be filed against grantee of lands on which improvements are to be carried out by the grantor.</p> <p>When there is an existing contract with the owner of lands for the erection of a building thereon and during the erection of said building the owner conveys the premises, part of the consideration being that the grantor shall, at his own expense, complete the building in conformity with the existing contract, the contractor has a right to subject the premises to a mechanic’s lien as against the grantee for sums due under the contract with the grantor..</p> <p>As the completion of such contract is part of the consideration for the deed, the work is done “with the consent or at the request ” o’f the grantee, and he is brought within the provisions of section 3 of the Lien Law authorizing the filing of mechanics’ liens.</p>

<p>Alimony— power of Supreme Court to grant temporary alimony in action for separation pending an appeal to the Supreme Court of the United ' States.</p> <p>The Supreme Court of the State of New York has power, under section 1769 of the Code of Civil Procedure, to allow temporary alimony and counsel fees in. an action for separation pending an appeal by the defendant from the Court of Appeals to the Supreme Court of the United States.</p> <p>The order of the Supreme Court of the United ■ States staying the judgment of the State courts pending such appeal stays only the enforcement of the judgment under review and does not affect the power of the State court to grant . such temporary alimony.</p> <p>Patterson, J., dissented.</p>

Appeal, by the defendant, John Peirce, 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 24th day of April, 1905, upon the Verdict of a jury for $500, and also from an order entered in said clerk’s office on the 20th day,of April, 1905, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Thomas A. Lewis, 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 29th. day of June, 1905, vacating a warrant of attachment'theretofore granted in'the action.

Appeal by the defendant, The Hastings Pavement Company, frorn 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 2d day of October, 1905, allowing the plaintiff tó serve an amended complaint. -

<p>Mortgage—when leave to bring action on bond should-be granted.</p> <p>The fact that a mortgagor claims to have a valid defense for the balance unpaid on a bond secured by mortgage is no reason for denying an application by the ■ assignee of such bond for leave to bring an action thereon under section 1628 of the Code of Civil Procedure..</p> <p>The validity of such defense should be left for determination in the action and should not be tried upon the affidavits used on the motion for leave to sue.</p>

<p>Pleading—leave to serve supplemental complaint, setting up new facts — facts not constituting laches in asking such leave.</p> <p>When, pending the appeal of an action brought to recover possession of securities pledged as collateral, such securities have become of no value, the plaintiff should be allowed to serve a supplemental complaint alleging that fact, and asking judgment for the value of the securities at the time demand. therefor was made.</p> <p>When the necessity for leave to serve such supplemental complaint does not come to the knowledge of the parties until the case is brought to a second trial before a referee and when the delay does not appear to have caused substantial injury to a party to the action, such application should not be denied on the ground of laches. Laches, in a legal sense, depends upon the particular circumstances of each case. '</p> <p>Pattebson and Houghton, JJ., dissented.</p>

<p>Appeal by the plaintiff, William- Tudor, from an' order of the Supreme Court, made at the New York Special- Term and entered .in the office of -the clerk of the county'of New York on the 26th day of June, 1905. „</p>

<p>Appeal by the defendant, Addison B. Jones, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of May, 1905, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the plaintiff’s demurrer to the defense contained in th.e defendant’s answer.</p>

<p>Principal and agent—when payment of insurance premium to absconding agént is payment to principal.</p> <p>When, in an action by a fire insurance company to recover a premium alleged to be due, it is shown that the person to whom the.defendant paid the premium and who absconded therewith, .was in the employ of the plaintiff; that it paid him commissions for getting insurance; that, .among others, it gave him the particular policy in question for delivery to the defendant; that he, in fact, delivered it and was to collect the premium and turn it over to the plaintiff, less his commission,, the facts warrant a finding that such person was agent of' the plaintiff to receive payment and that' payment to him was payment to the( plaintiff.</p> <p>This is so, although the policy read' that “ no person, .unless duly authorized, in writing, shall be deemed' the agent of this company,” as such words apply only to matters connected with the making of the contract, the yalidity -of which the plaintiff admitted by suing thereon. 1</p> <p>Ingraham, J., dissented.</p>

Appeal by the defendant, Emma G. Duryee, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of Hay, 1905.

<p>Appeal by the defendant, Martin P. Byrnes, 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 17th day of May, 1905, setting aside a judgment of separation theretofore entered in favor of the defendant.</p>

Appeal by the purchaser, Otto Gerdau, 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 Hew York on the 12th day of June, 1905, denying the appellant’s motion to be relieved ■ from his purchase at a foreclosure sale in the above-entitled action, and also from an order entered in said clerk’s office on the 21th day of June, 1905, denying , his further motion for leave to renew the aforesaid motion on…

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 21st day. Of March, 1905, upon the verdict of a jury for $12,500, and also from an order entered in -said clerk’s office on the 24th day of March,. 1905, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the Bankers’ Trust Company from an order of the Surrogate’s Court of the county of Hew York, entered in said Surrogate’s Court on the 6th day of October, 1905, granting a motion made by the Bankers’ Surety Company to have the said Bankers’ Trust Company made a party to the proceeding.</p>

<p>Injunction pendente lite — when not granted to restrain foreclosure of chattel mortgage in action for breach of covenant in lease.</p> <p>When, in an action by a lessee against her lessor and his grantee for damages for breach of covenants to repair, the grantee, by mesne conveyances, has become the holder of a chattel mortgage executed by the plaintiff to secure the payment of rent, an injunction pendente lite should not be granted to restrain the foreclosure of such chattel mortgage pending the determination of the action for breach of covenant, when neither the complaint nor the affidavit setting forth the execution of the chattel mortgage discloses any ground for injunctive relief under sections 603 or 604 of the Code of Civil Procedure.</p> <p>Iu any event, such injunction cannot be granted without requiring, an undertaking by plaintiff.</p>

<p>Guaranty — when joint and not several— joint guarantors necessary parties in action thereon — when several liability of guarantors not ■ properly alleged.</p> <p>Where several persons execute an instrument upon the same consideration at the same time and for the same purpose, and which takes effect from a single delivery, it is a joint promise. Promises of several persons are presumed to be joint and not several, unless a contrary intention is shown in the instrument. An agreement by several persons guaranteeing the payment of a note of §28,000, whereby they guaranteed to the plaintiff, each to the amount of the §5,000, payment of said note, is a joint and not-a several promise. The guaranty is joint," although the amount of liability of each guarantor is’limited. Hence, all such guarantors are necessary parties in an action on such guaranty and a demurrer should be sustained to a complaint which names only one of them defendant.</p> <p>When such complaint, after setting out the execution of such guaranty, states that the plaintiff is .the owner and holder of said note and that the same has not 'been paid excepting a sum named, and that “ by reason of the facts aforesaid ” the defendant is indebted to the plaintiff, it does not state a cause of action, even though the guaranty were several, as the defendant’s personal breach thereof is in no way alleged, for the part payment may have been made by defendant on his personal guaranty. The allegation that the defendant was liable “ by reason of the facts aforesaid” is a, mere conclusion of law not admitted by a demurrer.</p> <p>Patterson, J., dissented..</p>

<p>Pleading—action for wrongfully dissecting body of plaintiffs wife — demurrer to answer sustained.</p> <p>In an action against officers of a hospital for'damages for having wrongfully dissected or caused to be dissected' the body of plaintiff’s- wife after her death, the defendants, ’as a separate defense, alleged that the plaintiff’s wife was brought-to the hospital suffering from a tumor, and was operated upon at her own request. On demurrer to such defense, '</p> <p>Held, that the defense did not meet the 'cause of action set forth in the complaint, which was for dissection after death, and the plaintiff’s demurrer to such answer should be sustained.</p> <p>As a further defense the answer alleged that the complaint did not state a cause of action. On demurrer by the plaintiff thereto,</p> <p>Held, that the demurrer should be sustained, as such alleged defense was neither a general nor* specific denial of the allegations of the complaint, nor a statement of any new matter constituting a defense or counterclaim, nor is it a demurrer authorized to be taken by answer under section 498-of the Code of Civil Procedure, because the allegations attacked appeared upon the face of the complaint.</p>

Appeal by the plaintiff, James Darragh, from an interlocutory judgment of the Supreme Court in favor of the defendant Goldberg,,' entered' in the office of the clerk of the county of Hew York on the 18th day of July, 1905, itpon the decision of .the court, rendered after a trial at the Hew'York Special. Term, overruling the plaintiff’s demurrer to the answer of the defendant Goldberg.

Appeal by Theodore P. Cooper and others from certain portions of a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 22d day of May, 1905, directing a distribution of the estate of William B. Cooper, Jr., deceased. ;

Appeal by the defendant, William Wilson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York bn the 3d day of April, 1905, upon the report'of a referee.

Appeal by William B. Isham 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 July, 1904, confirming the report of commissioners of estimate and assessment in the above-entitled proceeding.

<p>Place of trial — action, for libel tried in county where published.</p> <p>hen the complaint in an action for libel makes no allegation that there was any publication thereof outside of the county where the newspaper was printed and circulated, the action should be tried in that county.</p>

Appeal by the defendant, Frank A. Dole, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dew York on the 12th day of October, 1904, upon the report of a referee, with notice of an intention to bring up for review upon such appeal certain intermediate orders.

■ Appeal by the petitioner, Alvin L. Newmyer, from an order of the Supreme Court, inade at the New York Special Term and entered in the office of the clerk of the county of New York on the ■8th day of Juñe, 1905, denying the petitioner’s motion for the appointment of a trustee in the place and stead of Leopold Rothschild.

Appeal by the defendant, Edward W. Browning, from an order of the Supreme Court, made at the Mew York Special Term an entered in the office of the.'clerk of the county of New York o the 9th d^y of November, 1905, denying the defendant’s motion t cancel a lis pendens.

<p>Appeal by the defendant, the Prince Line, Limited, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 8th day of March, 1965, upon the verdict of a jury rendered hy direction of the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 3d day of March, 1965, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, the Standard' Oil Company 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 17th day of March, 1905, upon the verdict of a jury, and also from an order entered in said clerk's office on the 16th day of March, 1905, denying the defendant’s motion for a new trial made upon the minutes.

<p>Judgment—when liability is several recovery of whole amount against some defendants only is improper-^- evidence insufficient to establish joint liability. '"</p> <p>"When the liability of defendants' for commissions'on the sale of real estate is several and not joint, a judgment against some of the defendants only for the full amount due should bereversed*</p> <p>Evidence by plaintiff of declarations by one of the defendants that the others would do what he did and that one defendant handed part of the commissions paid to another, saying “ Credit that to the "West Hoboken Syndicate,” there being no evidence that the defendants composed said syndicate or were joint owners of the lands, is insufficient to prove the joint liability of such defendants.</p> <p>Declarations of one defendant do not bind the others, in the absence of proof that they were engaged in a. joint enterprise.</p>

Appeal by the plaintiff, The City of Hew 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 24th day of October, 1905, granting the defendant’s motion for a stay of proceedings.

Appeal by the defendants^ Michael Tully and another,, froiq an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of August, 1905, denying ‘.the said defendants’ motion to vacate an order theretofore made for the examination of the-defendants before trial..

<p>Appeal by Louis Siff and others, copartners doing business under the firm name of “ L. Siff & Brothers,” from an order of the Supreme Court, made at the New York Special Term and entered in the office of the' ólerk of the county of New York on the 31st day of May, 190b, directing the said appellants-to pay a judgment- for costs recovered by the Metropolitan Steamship Company against Philip Friedman.</p>

Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of. the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 7th day of December, 1903, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 9th day of December, 1903, denying the defendant’s motion for a new trial made upon the minutes.

<p>Scienter of vicious character of dog.</p> <p>Evidence that the owner of a dog has seen it rush at people and snap at them and has called the dog back under such circumstances, is sufficient to show knowledge that the dog was likely to attack and bite persons upon the highway.</p> <p>Hooker, J., ,dissented.</p>

Appeal by the defendant, John Higgins, 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 September, 1904, upon the verdict of a jury rendered- by direction of the court, and also from an order entered in said clerk’s office on -the 14th' day of October, 1904, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Erie Railroad Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Rock-land on. the 5th day of Hay, 1905, granting the plaintiff’s motion for leave to serve an amended complaint. 1

■ Appeal by the defendant, William H. Jacob, from a final order of the County Court of Nassau county, entered in the -office of the clerk of the county of Nassau on the 4th day of. May, 1904.

<p>Appeal by the defendant, Robert Gair, 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 19th day of April, 1904, upon the verdict of a jury-for $1,500, and also from an order entered in said clerk’s office on the 19th day of April, 1901, denying the defendant’s motion for a new -trial made upon the minutes.</p>

Appeal by the plaintiff, Fritz Nelson, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 30th day of January, 1904, upon the verdict of a jury rendered by direction of the court after a trial at the Queens County Trial Term.

Appeal by the petitioner, Leonard Jacob, from an order of the County Court of ¡Nassau county, entered in the office of the clerk of the county of ¡Nassau on the 21st day of September, 1904, dismissing the appellant’s petition.

Appeal by the plaintiff, Donnie Barrus, from a judgment of the County Court of Cayuga county in favor of the defendant, entered in the office of the clerk of the county of Cayuga on the 20th day of July, 1905, reversing a final order made in summary proceedings instituted before a justice of the peace.

Appeal by tbe defendant, the Rochester Railway Company, 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 Monroe on the 31st day of December, 1903, upon the decision of the court rendered after a trial at the Monroe Special Term, and also from portions of a judgment in favor of plaintiff, entered' in said clerk’s office on the 2d day of April, 1904.

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 26th day of January, 1904, upon the verdict of a jury for $450, and also from an order entered in said .clerk’s office- on the 25th day of January, 1904, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Brooklyn, Queens County and Suburban Bailroad Company, 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 15th day of February, 1905, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 4th day of March, 1905, denying the defendant’s motion for a new trial made upon the minutes.

'Appeal by the defendant, the New York City Bailway Company, from an order of the Municipal Court of the-city of New York, borough of Brooklyn,- entered in the office of the clerk of said -court on the 12th day of December, 1904, denying the defendant’s motion to set aside a verdict rendered in favor of the plaintiff on the 22d day of November, 1904, and for a-new trial of the action.

<p>Satisfaction of mortgage securing sums due trust estate forged by one" trustee does not release mortgagor — when trustees not estopped to foreclose such mortgage.</p> <p>The defendant accepted a loan of trust funds and secured the payment thereof by a bond in terms payable to the trustees individually and by a mortgage payable to them as “ executors and trustees.” He paid the loan before due to one trustee by checks payable to him “as trustee.” Said trustee executed a satisfaction of the mortgage purporting to be signed by all the trustees, but the signature of one of them was procured by fraud and that of the other was forged. Subsequently he absconded with the proceeds of the checks. In an action by the other trustees to cancel said satisfaction piece and to foreclose the mortgage,</p> <p>Held, that as a matter of law the discharge Of a mortgage securing, a loan of trust funds requires the united action of all-the trustees, the mortgagor was not discharged by such forged satisfaction piece;</p> <p>That, though, on learning of the forgery, the remaining trustees had not notified the mortgagor thereof, they were not estopped to foreclose the mortgage, either as against him or as against a subsequent mortgagee who had taken his mortgage,’ relying on the apparent discharge of the' prior mortgage by said forged satisfaction piece, when it appears that the absconding trustee had no property to which the mortgagor could 'have looked, and that his failure to cause an arrest of such trustee was not due to .reliance on any duty he could expect, the other trustees to perform;" ,</p> <p>That the fact, that, two of the beneficiaries who were of age had released the trustees from liability to them without consideration, could not be taken advantage of by said mortgagor as he was a stranger thereto and there were other beneficiaries still minors;</p> <p>That the act of the trustees in accepting the mortgage was done as trustees and not as executors, for the estate, by the terms of the will, was devised directly • to them as trustees, though' they were also named executors, which fact was recognized by the mortgagor, by making payment to one of them “ as trustee.” \</p>

<p>Appeal by the defendant, The State Safe Deposit Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 12th day of June, 1905, upon the decision of the court, rendered after a trial át the New York Special Term, overruling ■the defendant’s demurrer'to the complaint. •</p>

<p>Election Law — inspectors of election cannot refuse vote- of qualified voter, though his name has already been voted on — mandamus lies to. compel reception of vote.</p> <p>Inspectors of -election have no right to refuse to allow a duly qualified and registered elector to vote, solely because some other person bad previously voted on bis name. Such refusal is a violation of the voter’s constitutional right under the Ifew York State Constitution (Art. 1, § 1, and art. 2, § 4)..</p> <p>Inspectors act .ministerially only, and have no powers except those given by ' statute., ' _</p> <p>Mandamus is the proper remedy to compel inspectors to receive the vote of an elector.</p>

<p>Demurrer — complaint in creditor’s action to enforce lien on debtor’s policy of life" insurance — failure to state cause of action.</p> <p>In an action by a judgment creditor of one bolding a life insurance policy asking that the policy he surrendered to the insurer and that the rights of the parties thereto he determined, the complaint alleged in substance that, by the terms of the policy, certain sums were due the debtor on June 26, 1904; that in a prior action the plaintiff had attached said policy; that at the time of the present action the policy had a surrender value; that the execution on the prior judgment was still outstanding and unsatisfied; that subsequent to said attachment the debtor had assigned the policy, etc. On demurrer to such complaint,</p> <p>Held, that the complaint did not state a cause of action, because:</p> <p>1. The action was not in aid of the attachment, for the same was merged in the prior judgment and superseded by the execution;</p> <p>2. The complaint did not state a judgment creditor’s action, because the execution was shown to be still outstanding;</p> <p>3. It did not state an action to enforce a lien on the policy, because there was no allegation that the lien could not be enforced without a surrender of the policy or that such surrender was necessary;</p> <p>4. The complaint was defective in not alleging that such surrender of the policy had been demanded and refused;</p> <p>5. It was defective in containing no allegation that at the time of the attachment the policy had a cash surrender value, as the policy was not set out, and the allegation that it “ had and now has a surrender-value ” was a conclusion of law not admitted by demurrer;</p> <p>6. That on the face of the complaint it did not appear that anything was payable on the policy at the time of action brought, for the insured was not dead, and the agreement by the insurer was to pay on June twenty-sixth, while the action was commenced on June twenty-third.</p>

<p>Demurrer—complaint sustained in action by creditor for accounting by committee of creditors of defunct corporation.</p> <p>An action in equity for an accounting lies on behalf of a creditor of a defunct corporation against the members of a committee of creditors thereof who have received money from the plaintiff in trust to protect the interests of creditors and who are charged with wasting and squandering the same.</p> <p>Such complaint is not demurrable because it sets out the letters .of the defendant, committee whereby .the .plaintiff was induced to .pay the money, together with reports of ¡such committee. Such letters and Reports are not- to be taken as án admission by the plaintiff that it has already had an accounting when the truth of the statements in -said letters -and reports is not admitted, for they merely-show facts establishing the fiduciary relation-of the par,ties. .</p> <p>There is no defect of parties, because neither the defunct -corporation nor .a new corporation which the' .defendants, as. appears by their report, organized in place thereof, are joined as defendants, there being no relief asked against either corporation.</p> <p>Such action being brought by the '.plaintiff on its -own behalf -and' not in the interests of ether creditors may be maintained -against' the defendants both ’ individually and as trustees.</p>

<p>Appea-e by the- defendants* William Ives and another, from an order of tile- Supreme '(Dbúrt, made at the- Hew Yoyk- Special Term and entered in the office of the clerk of the county of Hew York on the 10th day of January, 1905, denying the defendants-’ motion- for s, bill of particulars.</p>

Appeal by the defendant, Adrian Iselin, Jr.,.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 3d (day of July, 1905, upon the, decision of the court, rendered after a trial at the Hew York Special Term, overruling the defendant’s demurrer to the amended complaint. .

. Appeal by the defendant, John J. O'Donohue, 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 3d day of March, 1905, upon the verdict of a jury, and also from an order entered in ■said clerk’s office on the 2d day of March, 1905, denying, the •defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Patrick M. Carolan, individually and as executor, etc., of Heal O’Donnell, deceased, 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 Yoi’k on the 5th' day of October, 1905, as denies the plaintiff’s motion to-amend a judgment entered herein on the 12th day of May, 1905.

' Appeal by the defendant,, the A. T. Stewart Realty Company, from an order of the Supreme Court, made at the New York Special Term and' entered in the office of the clerk of the county of New York on the 6th day of November, 1905, restraining and-' enjoining the defendant, its. contractors, servants, agents and employees “ from maintaining, allowing or .suffering to exist ” in the . building described in the % complaint any dwarf partitions, shelves, platforms,- cases and…

Appeal by the defendant, Andrew Lang, the clerk of the Munici- ■ pal Court of the city of New York, borough of Manhattan, fourth district, 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 23d day of October, 1905, granting the relators’ motion for a peremptory writ of mandamus to require him to tax costé in a certain action brought in the Municipal Court of the city of New York, and…

Appeal by the plaintiff, Joseph A. Knieriem, 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 25th day of Hay, 1905, upon the dismissal of the complaint by direction of the court at the New York Trial Term.

<p>' Appeal by the defendant, -Karl H. Wallach, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of' the clerk of the county of Hew York on the 19th day of Hay, 1905, upon the decision of the court rendered after a trial at the Hew York Special Term.</p>

Appeal by the defendant, The Manhattan Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of January, 1905, upon the verdict of a jury for $'4,000, and also from an order entered in said clerk’s office on the 23d day of January, 1905, denying the defendant’s motion for a new trial made upon the minutes. ,

Appeal by the defendants, Otto, M. Eidlitz and another, from a judgment of .the’ Supreme Court in fav.oi’ of the plaintiff, entered in the office of the clerk of the county of Hew York on the. 14th day of -February, 1905, upon the verdict of a jury rendered by diréctioñ of the court, and also from an order entered in said clerk’s office on the 17th day of February, -1905, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, Frank Sullivan Smith, as assignee for the benefit of .creditors of Henry Marquand & Co., and individually, from a judgment of the Supreme Court in favor of the plaintiffs and the defendant Louisa B. Allen, entered in the office of the clerk of the county of Hew York on the 22d day of March, 1905, upon the report of a referee.

Cross-appeals by the plaintiff and the defendant from, a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 12th day of November, 1904, upon the report of a referee..

Appeal by the plaintiffs, Alexander Potter an4 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 18th day of October, 1905. . ,

Appeal by the'defendants, Charles E. Coddington and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of the county of New York on the 29th.day of March, 1905, upon the decision of the court rendered after a trial at the New York Special Term.

<p>Municipal corporations — Certiorari to review assessment for sewer — erroneous assessment by-“foot front.”</p> <p>The court, in reviewing an assessment on common-law certiorari, will ascertain from the whole record whether the relator’s property was fairly and justly assessed in comparison with other property, and if not so assessed .will annul, the assessment.</p> <p>It is error for an assessor, in assessing the cost of a system of sewers against lands in proportion to the benefits received, to levy the same “foot front” assessment against lands with a large frontage, hut containing, a.single dwelling house, as is levied against other real estate constituting the business portion of the city, and which, per' foot front, has greater need for and receives greater benefit from such sewers.</p> <p>It is also' error to assess a lot.having a frontage on three streets respectively of 198 feet,' 332 feet and 240 feet, by dividing it into three lots and assessing one as 198 feet with 100 foot depth, another as 240 feet with 100 foot depth, and a third as 132 feet with a depth of 332 feet, making in all a foot frontage of 070 feet, when, by- comparison with other property similarly situated, such assessment is disproportionate.</p> <p>It is also error, in malting such assessment, to omit from the assessment other property in the assessment district, including property belonging to the city liable to assessment, thus imposing a greater burden, on the lands assessed.</p>

Appeal by the defendant, M. Truman Smith, from a final judgment of the Supreme Court in favor of the plaintiff, entered in the-office of the clerk of the county of Schuyler on the 22d day of May, 1905, upon the verdict of a jury for $400, and also from án order entered in said clerk’s office on the 5th day of May, 1905 denying the defendant’s motion for a new trial made upon the minutes. .

<p>Appeal by the plaintiff, Charles Hagadorn, from an order of the County Court of Livingston county, entered in the office of the clerk of the county of Livingston on the 29th day of May, 1905, setting aside the verdict of a jury theretofore rendered in favor of the plaintiff. x .</p>

Appeal by Caroline D. Moore from a decree of the Surrogate’s Court of the county of Erie, entered in said court on the 24th day of February, 1905, admitting to probate the alleged will of Chester Moore, deceased;

; Appeal by the plaintiff, Mark E. Wood,, from a judgment of the Supreme Court in favor of the defendant, entered, in the office of the clerk of the county of Tioga on the 25th day of October,, 1904, upon a nonsuit granted by the court after a trial at the Tioga Trial Term, and also from an order entered in said clerk’s- office on the 29th day of September, 1904, denying the plaintiff’s motion for a 'new trial made upon the minutes.

Appeal by the defendant,. The Delaware, Lackawanna and Western Railroad Company, from an interlocutory ¡judgment of the^ Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Tompkins on the 3d day of June, 1905, upon the decision of the court, rendered after a trial at the Tompkins Special Term, sustaining the plaintiff’s demurrer to one of the defenses set up in the defendant’s answer. i

Appeal by Dewitt A. Devoe and another from a decree of the Surrogate’s Court of the county of Fulton, entered in said Surrogate’s Court on the 31st day of August, 1903, admitting to probate an alleged will, dated April 24, 1901, of Eliza D. Eldred. The. testatrix was a widow and died ¡November 27, 1902, without leaving a descendant. Her only heirs at law and next of kin were one nephew and one niece, the contestants.

Appeal by the defendants, Charles G. Reinhart and another, from a judgment of the Supreme Court in favor of -the'plaintiff, entered in the office of the clerk of the county of Kings on the 25th day of May, 1905, upon the decision of the court rendered after a trial at the Kings County Special Term.

Certiorari issued out of the Supreme Court and attested on the 10th day of January, 1905, directed to Edwin B. Sipple and others, as the town board of audit of the town of Orangetown, Rockland - county, New York, commanding them to certify and. return, to the office of the clerk of-the county of Rockland all arid singular their proceedings had in disallowing a portion of the rblator’s claim'for services rendered.

Appeal by the plaintiff, Mary Ellen Walker, 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 February, 1905, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s evidence upon a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 23d day of January, 1905, denying the plaintiff’s motion for a new…

<p>Appeal by the plaintiff, Addie B. Tingley, as executrix, etc., of Hilbert B. Tingley, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 29th day of April, 1904, upon the verdict nf a jury,, and also from an order entered in said-clerk’s office on the 1st day of June, 1904, denying the plaintiff’s motion for a new- trial made upon the minutes. . .</p>

Appeal by the defendant, Rosalie de Goicouria Cameron, by Samuel Riker, Jr., her guardian ad litem, from a portion of- a judgment of the Supreme Court, entered in the office of the clerk of the county of Dutchess on the 10th day of April, 1905, upon the report of a referee.

Appeal by the plaintiff, Elizabeth Knoth, 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 New York on the 17th day of December, 1904, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendant, the Lake Champlain and Moriah Railroad Company,, from an order of the Supreme Court, made at the Clinton Special Term and entered in the, office of the 'clerk of the-county of Essex on the 4th day of - October, 1905, denying the (defendant’s motion for a, bill of particulars.

. Appeal by Joseph, J. Maher from an order of the Supreme Court, made at the Saratoga Special Term and entered in the office of the clerk of the county of Schenectady on the 14th day of July* 19051, appointing a referee, and also^ from an order entered in said clerk’s office on the 1st day of September, 1905, denying the appellant’s motion to set aside and vacate said order of reference.

<p>Appeal by fee plaintiff, Anna. E. Spaeth,, from, a judgment of fee Supreme Court in favor of the; defendant; entered in', fee office of fen clerk of the county of Westchester, on fee 26th day of April,'. 1904,. upon the- verdict, of" a jury, and also- from an order entered in said clerk’s .office- oh the- 28th day of Hay, 1904, denying the plaintiffs motion for a new trial made upon the minutes..</p>

Appeal by flie defendants, The City of New York and others, from a judgment of the Supréme, Gonrt in- favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 23d day of October,' 1903, upon the verdict of ájury,.and also separate appeals from orders entered in said clerk’s office on. the 5th and 10th days of Ho'vember, 1903, respectively, denying the defendants’ respective motions for a hew trial made upon the minutes.

<p>Appeal by the defendant, the New York City Railway Company,</p>

Appeal by the defendants, Eliza F. Bronson 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 Orange on the 24th day of February, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 4th day of March, 1903, denying the defendants’ motion for a new trial made upoú the minutes.

Appeal by the plaintiff, Rosie Gordon, 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 21st day of September, 1904, upon the decision of the court rendered after a trial at the Kings. County Special Term,

<p>Negligence — injury by fall of door on dock.—no recovery by licensee.</p> <p>A longshoreman, not employed at the time hy the defendant, who had been requested by defendant’s foreman to remain about the dock as was the custom that he might be available for employment, should a boat come in to discharge its cargo, and who, while walking back and forth upon the dock to keep warm was injured hy the falling of a door which he knew to he in an unsafe condition, there being at the time a strong wind and a rising tide which overflowed the dock in places, cannot recover for such injuries. He was a mere licensee at the time and the defendant owed him no duty to keep the door securely in its place.</p>

Appeal by the defendant, The-Metropolitan Life Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 25th day of January, 1905, and also from an order entered in said clerk’s office on the 25th day of January, 1905, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Thomas Corrigan; from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on. the 10th day of June, 1904, upon the verdict of a jury, and also from an order hearing date the 6t.h day of May, 1904, and entered in said clerk’s office, denying the plaintiff's motion for a new trial made upon the minutes.

Appeal by the defendant, the Manhattan Bailway 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 Queens on the 13th day of May, 1905, denying the defendant’s motion for a new trial on the ground of newly-discovered evidence.

Appeal by the defendants, the Hew York Evening Journal Publishing Company and .another, from an • interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 21st day of March, 1905, mpon the,decision of the court, rendered after a trial at the Kings i County Special Term, overruling the defendants’ demurrers to the complaint.

Appeal by the plaintiffs, Ferdinand Westheimer and others, from a judgment of the City Court of Yonkers in favor of the defendants Henry A. Jackson and Ida May Jackson, entered in the office of the clerk of said court on the 24th day of December, 1904, upon the decision of the court dismissing the complaint as to the said defendants Jackson.

<p>Appeal by the defendant,. The Newtown Council Building Association, from a judgment of the Supreme Court'in favor of the plaintiff,, entered in the office of' the clerk of the county of Queens, on the 31st day of January, 1905, upon the decisiop of the court rendered after a trial at the Queens County Special Term.</p>

<p>Evidence—journals of Legislature admissible to show that required number of members were present at passage of Tax Law.</p> <p>When an executor claims that the act authorizing the transfer tax (Laws of 1903, chap. 41) is unconstitutional in that three-fifths of the members of both houses, as required by the Constitution (N. Y. Const, art. 3, § 25), are not shown to have been present by the certificates of the presiding oflicers of said houses as required by the Legislative Law, section 40, certified copies of the journals of the two houses and corrected certificates filed by the presiding officers thereof are admissible to show that in fact three-fifths of the members were present.</p>

. Appeal by Robert E. Hopkins, Jr., an infant, by Joseph W. Middlebrook, his special guardian, from an, order of' the Supreme Court, made at the Westchester Trial Term, and entered in the office of the clerk of the county of Westchester on the 5tli day of. Hovember, 1904, denying the appellant’s motion to set aside a verdict of the jury theretofore rendered by direction of the court and for a new trial of the action.

<p>Appeal by the plaintiffs, Max Freedman •;and another, 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 10th day of July, 1905.</p>

<p>Bankruptcy — action in State court to set aside preferential transfer of contract — purchaser thereof on judicial sale hy trustee may maintain such action. .' " ' ■</p> <p>The assignment of certain contracts by a husband to his wife within four months prior, to his bankruptcy, made with the wife’s knowledge of his insolvency, ican,he set aside by-the State courts in,a.suit in equity.</p> <p>Such" action may he maintained hy one who purchases' such contracts on a sale thereof by the trustee in bankruptcy under-order of the District Court.</p>

<p>Appeal by the plaintiff, David Berkowitz, from a judgment of the Municipal Court of the city of Mew York, entered in the office of the clerk of said court, dismissing the plaintiff’s complaint.</p>

Appeal by the plaintiffs, Arthur W. Smith and others, from án interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 14th day of December, 1904, upon the decision of the court rendered after a trial at the Kings County Special-Term.

<p>Appeal by the defendant, John McHamee, as executor, etc., of Edward Gorman,, deceased, from so much of a judgment of the •Supreme Court in favor of the said defendant, entered in the. office of the cleric of the county of Kings on the 30th day of March, 1905, upon the verdict of a jury rendered by direction of the court, ■as adjudges that any of the parties hereto shall be, paid costs and allowances out of the funds in the hands of the said defendant, as •executor, and also from an order entered in said clerk’s office on the 29th day of March, 1905, directing such payment out of the funds in the hands of the said executor.</p> <p>Also an appeal by the plaintiff, Patrick Larkin, from the whole ■of said judgment and from an order bearing date the 27th day of February, 1905, and entered in said clerk’s office, denying his motion for a new trial made upon the minutes.</p>

<p>■Contempt—:'when disobedience of injunction excused — when improper' to vacate injunction on motion to punish violation thereof.</p> <p>When, in an action in equity tó restrain defendant from prosecuting summary ■ proceedings against the .plaintiff, • on the ground that u prior -summary proceed-' ing was determined in plaintiff’s favor, k temporary injunction restraining ■ defendant has -been granted, such defendant should not be punished for contempt iñ instituting such proceeding, when he is, .shown to have -discontinued the same prior to the motion to punish him, and such proceedings were insti- ' tu-ted hy him on the theory that the injunction had expired by reason óf the failure of the plaintiff tó give abend as ¡required.</p> <p>Such injunction, however, cannot be vacated on such motion to.phnish for-contempt and for “such other .different or further relief as may be just,”’ when the dissolution of the injunction is no part of the plaintiff’s• motion and defendant has not served a counter notice that such relief will be asked.</p>

<p>City- of New -York — mandamus to compel reinstatement of. police sergeant 4-certificate of physical unfitness required' by charter — unfitness measured by nature of duties required.</p> <p>The provisions of the charter of' the. city, of Hew, York(§ 855) authorizing the ■ police commissioner to retire-officers on account, of physical -disabilities, require the certificate:" of so many of the -police surgeons as the police commissro'ner may require” that the officer examined “is permanently disabled/’ etc.,, and the mere resolutions and letters,of the president and secretary of the board of surgeons, who took no part in the examination, stating that such disability exists,- and unaccompanied by the certificate- of the surgeons who' personally made the-examination, are "insufficient td authorize the police commissioner to retire a. 'police officer. ' :</p> <p>Moreover, a finding by such .'president and secretary of-the board! of surgeons-that a police sergeant who was only required to do" desk work, while otherwise in good health, suffers from obesity,-, fatty heart and! poor circulation-,, is-insufficient to establish a permanant unfitness" to perform his duties as1 required, by the statute. Such police seigeant need-not be able to perform, every act-. that may properly he required of a police officer in all branches and departments of the service. He-is only required to he fit ‘to perform the duties, of the position he is filling. He is not required to be fit for'“'full police duty.” A police seigeant discharged on1 such defective-certificate and. on such insufficient., findings will be reinstated, by mandamus-.</p>

<p>Appeal by the defendant, The City of Mount Yernon, from an order of the County Court of Westchester county-, entered in the office of the clerk of the county of Westchester-on the 31st day of August, 1904, denying the defendant’s motion to set aside the veir diet of a jury theretofore rendered in favor of the plain tiff and for a, new trial made upon therminutes.</p>

<p>Ejectment under section 1501, Code Civil Procedure — adverse possession — direction of verdict, when erroneous—inadvertent admission by counsel. .</p>

This is an appeal from a judgment of the Supreme Court, entered in Herkimer county clerk’s office on the 30th day of January, 1905, on the report of a referee, in favor of the plaintiff, for §2,038.36, and for the foreclosure of a mechanic’s lien.

<p>Appeal by the defendants from a judgment of the Supreme Court, entered in the office of the clerk of Kings county on the 26th day of May, 1904, in favor of the plaintiff.</p>

'Appeal by the plaintiff, John,K. Cullin, from a judgmentof the Supreme Court in favor of the defendant, William J. Alvord, as sheriff of the county of Columbia, entered in the office of the clerk of the county of Columbia on the 38th day of February, 1905, lipón the report óf a referee.

Appeal by the defendant from a judgment in favor of the plaintiff, and also-from an order denying the defendant’s motion for a new trial.