Volume 11 — New York Appellate Division Reports

<p>Appeal by the defendant, Philip Brady, from a judgment of the . County Court of the county of Kings in favor of the plaintiff, ■entered in the office of the clerk of the county of Kings on the 12th day of May, 1896, upon the decision of the court affirming a judgment rendered by a justice of the peace of the city of Brooklyn.</p>

<p>Appeal by the relator, Charles P. Willis, 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 18th day of July, 1896, denying his motion for a peremptory writ of mandamus commanding the board of commutation of the Sing Sing State Prison to allow to him commutation for his good conduct as a convict in such prison.</p>

<p>False imprisonment of one quarantined hy a health commissioner —power to quarantine—•proclamation as to vaccination — evidence of .experts as to the disease and exposure to it.</p> <p>A commissioner of health of a city, authorized hy section 5 of title 12 of chapter 583 of the Laws of 1888, in case of. impending pestilence to take such measures as he may with the approval of the mayor and the president of the medical society declare the public safety and health require, and hy section 24 of chapter 661 of the Laws of 1893 to “require the isolation of all persons and things infected with, or exposed to, such disease," is only authorized to quarantine an individual who has been exposed to the disease under conditions which would permit of the communication of it — the mere possibility that the individual might have been exposed to the disease is insufficient.</p> <p>In an action for false imprisonment, brought against the commissioner by an individual who had been quarantined because of his refusal to be vaccinated, a proclamation of the commissioner and of the mayor of the city and of the president of the medical society reciting that smallpox "was epidemic; that every citizen should he vaccinated, and those not vaccinated should be quarantined, should be received in evidence on behalf of the commissioner, who should also be allowed to prove the number of cases of the disease and to introduce a map indicating the locality of the cases, and to prove, by members of the medical profession, the infectious and contagious character of smallpox, how the contagion is conveyed hy the air, clothing and utensils; absorbed in the respiratory tract, and how long the poison retains its vitality-—in support of a hypothetical question calling for the witnesses’ opinion whether under all the circumstances, the plaintiff was exposed to smallpox.</p>

<p>Appeal by the defendant, Thé Long Island 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 Queens on the 28th day of April, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme Court held in and for the county of Queens, and also from an order, bearing date the llth day of April, 1896, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the plaintiff, Frances J. Romaine, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Orange on the 7th day of December, 1894, upon the dismissal of the complaint directed by the court after a trial before the court and a jury at the Orange Circuit.</p>

<p>Appeal by George W. Palmer, as comptroller of the city of Brooklyn, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 27th day of August, 1896, directing that a peremptory writ of mandamus issue, directed to him, commanding him to forthwith certify the contract of Thomas G. Carlin with the department of city works of the city of Brooklyn.</p>

<p>Reorganization agreement—a new railroad company homing, when it was executed, knowledge of all the facts is estopped thereby■—•fraud must be alleged — liability of the trustee of a fund created to pay debts of the predecessor of the trustee — liability for stock loaned to be pledged.</p> <p>In an action brought by the assignee of a construction company to recover for labor and materials furnished to a railway company, it appeared that the original parties entered into an agreement which created a fund to pay the debts of the railway company, then threatened with insolvency, which provided for the formation of a new railroad corporation (the defendant in such action), for the payment of the old bonds of the railway company, for the issue of bonds of the new railroad corporation, and also for the issue of its stock in payment of the obligations of the railway company, and, further, that the terms of the agreement had been carried out, and that the new railroad corporation at all times had knowledge of the material facts, and, under the agreement, had received property of great value.</p> <p>Held, that the new railroad corporation was estopped from asserting that there had been an overissue of stock by the railway company to the construction company in payment for construction; that its overissue was illegal, and that it constituted no obligation which the construction company was equitably entitled to enforce against the new railroad corporation.</p> <p>Where it is alleged that an issue of stock under such circumstances was fraudulent or illegal, the answer should contain specific allegations of fraud or illegality, and it is too late upon appeal to raise an issue of fraud which has not been presented by the pleadings.</p> <p>Where such an agreement contains no specific or general words releasing the debt of the construction company, but makes particular specification respecting the written obligations held by it, and in a clause which sets apart a sum to be applied in liquidation of the indebtedness of the railway company uses no words of exclusion, but, by its terms, embraces any person or company, creditors of the railway company, to the extent of the sum set apart, a claim that such an instrument works a general release of the claims of each company against the other must be founded upon the conduct of the parties thereto; and where that docs not show a release, none will be adjudged.</p> <p>Accounts, however complicated, cannot be made a basis to keep alive a debt or obligation which has been extinguished by the surrender and cancellation by the creditor of certificates issued by the debtor, which were a lien upon the latter’s equipment.</p> <p>Where, upon demand, a construction company made a statement of the debts of a railway company to persons (entitled to rely upon it), anxious to learn only the gross amount of those debts, no inference of fraud can be drawn from the fact that the statement did not give the names of the particular creditors nor the amounts of their respective debts, and this is clearly so where the balance sheet-of the corporation gave data from which these facts might be derived.</p> <p>Where a construction company, holding stock of a railway company, loans some of it to the latter company, upon condition that the stock shall be returned or be paid for at a price fixed, and the railway company pledges it as collateral security to notes which it gives, and the pledgee, under an option given him by the railroad company, takes the stock in payment of the notes at a price much lower than the price fixed between the railway and construction companies, the railway company becomes liable to the construction company.</p> <p>Where a railroad company holds as trustee a fund, set apart to pay floating indebtednesses, it is chargeable, after the expiration of a reasonable period allowed for an accounting and the payment of the debts, with interest to one whose just claim it refuses or unreasonably neglects to pay.</p>

<p> Undertaking required to perfect an appeal by legatees from a surrogates decree and to stay its enforcement. </p> <p>Upon an appeal from a decree of a Surrogate’s Court, by a person other than an executor, administrator, trustee, guardian or other person, appointed by the Surrogate’s Court, the only undertaking required to perfect the appeal and to stay the enforcement of the decree is one for §350, required by section 3577 of the Code of Civil Procedure.</p> <p>Section .3580 of the Code of Civil Procedure only applies to appeals by executors, administrators, trustees, guardians or other persons, appointed by the Surrogate’s Court.</p>

<p>Practice— the continuance of an action upon the death of a sole plaintiff or defendant is discretionary with the court—when refused because of laches— no distinction between legal and equitable actions.</p> <p>The right conferred by section 757 of the Code of Civil Procedure, which provides that “in case of the death of a sole plaintiff or a sole defendant, if the cause of action survives or continues, the court must, upon a motion, allow or compel the action to be continued,” is not an absolute right, but the allowance of it rests within the sound discretion of the court.</p> <p>What laches are sufficient to justify the court in denying an application that an action be continued under this section of the Code, considered.</p> <p>Semble, that the rule is the same in legal as in equitable actions.</p>

<p>Negligence—proof that a fire toas caused by a door in the sparh arrester upon an engine being open — evidence of experts as to — impeaching a witness — allowance of interest discretionary with the jury.</p> <p>Witnesses familiar with the mechanism of a spark arrester, and with the proper mode of its operation, may testify as to whether there is any posihility of the key, fastening the door of the spark arrester in position, falling down in the operation of the engine, if once properly placed in position, and as to whether an engine, having a properly constructed netting, in good order, would throw sparks to a considerable distance.</p> <p>Where there is a conflict in the testimony of the fireman and engineer as to whether the door of the spark arrester was found open before or after the fire, it is competent, for the purpose of impeaching the fireman, to prove a statement made "by him on the same subject to a third person.</p> <p>Jn an action in which it was sought to prove the value of certain lands and buildings, and an ice machine situated in one of them, witnesses were permitted to include in their estimates what they had been told was the cost of the ice "machine. It appeared, however, by other competent proof what the original •cost of the machine was, and what had been expended thereon for repairs, additions and improvements.</p> <p>Held, that the evidence as to what the witnesses had been told was not, under the circumstances, prejudicial to the defendant, and that its admission was not such an error as called for the reversal of the judgment.</p> <p>In an action brought to recover damages for the destruction of certain premises, belonging to the plaintiff, by a fire alleged to have been caused by sparks and -cinders emitted by one of the defendant’s engines, the engineer of the engine in question testified that he, immediately after the fire, found the door in the sparlc arrester open, and the key furnished for the purpose of fastening such door lying unbroken in the bottom of the smoke box. The effect of the door being open was to permit the free passage of sparks and cinders, and it was not shown how long this condition had existed. There was, however, testimony to the effect that sparks were thrown out by this engine at various times prior to the fire, permitting the inference that the spark arrester had been out of order for a considerable period of time.</p> <p>Held, that this evidence supported the conclusion that the fire was caused by the negligence of the railroad company.</p> <p>In an action in tort to recover unliquidated damages the jury may award interest, but are not compelled to do so, and it is an error for the court to direct them to allow interest.</p>

<p>Appeal by the plaintiff, Lee Nutting, 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 12th day of December, 1895, upon the decision of the court rendered after a trial at the Kings County Special Term dismissing the plaintiff’s complaint.</p>

<p>Mortgage foreclosure — right of a receiver to the possession of the premises.</p> <p>A temporary receiver appointed in an action to foreclose a mortgage is entitled to an order requiring the owner of the equity of redemption in the mortgaged premises to surrender possession of them to him, although such owner has not appeared in the action, and service upon her by publication has not been completed.</p>

Appeal by Frederic IT. Shonnard, one of the commissioners of appraisal, from so much of 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 18th day of November, 1896, as removed him from the position of commissioner of appraisal in the above-entitled proceeding.

Appeal by the plaintiff, the Woodside Brewing Company, from a judgment of the Supreme.Court in favor of the defendant, entered in the office of the clerk of the county of Kings bn the 9th day of June, 1896, upon the verdict of a jury rendered by direction of the court after a trial at a Trial Term of the Supreme Court held in and for the county of Kings, and also from an order entered in said clerk’s office on the 8th day of July, 1896, denying the plaintiff’s motion for a…

<p>Appeal by the plaintiffs, Andrew G. Cooper and another, from a judgment of the City Court of Brooldyu in favor of the defendant, entered in the office of the clerk of the county of Kings on the 21st day of May, 1896, upon the décision of the court rendered after a trial at a Special Term of said court dismissing the complaint upon the merits.</p>

<p>Liquor Tux Law — determination as to the number of dwellings within 200 feet of a saloon.</p> <p>Under the Liquor Tax Law (Chap. 112 of the Laws of 1896) it is for the county treasurer to determine from the application, or otherwise, the number of buildings occupied exclusively as dwellings, whose nearest entrance is within 200 feet of the nearest entrance to premises in which it is proposed to carry on the traffic in liquor.</p> <p>The return to a writ of certiorari issued to review the determination of a county treasurer, refusing to issue a liquor tax certificate, stated that the applicant had not procured the consent of,two-thirds of the owners of such buildings.</p> <p>Held,, that the return was conclusive upon the question, and that the county treasurer’s determination should be affirmed.</p>

<p>Payment of an individual debt with a firm cheek— notice implied from the check.</p> <p>A certified check is not the equivalent of money or a bank note.</p> <p>The firm of Field, Lindley, Wiechers & Co. succeeded the firm of Field, Lindley & Co., Edward M. Field and Daniel A. Lindley, members of the old firm, becoming partners in the new one. After the formation of the new firm, Field, without the knowledge of his copartners, drew two certified checks in the name of the new firm, and sent them to Drexel, Morgan & Go. to be applied upon an indebtedness of the old firm, which the new firm had not assumed.</p> <p>Drexel, Morgan & Go., who did not know of any want of authority on the part of Field to draw the checks, and had no actual knowledge that the funds upon which the checks were drawn belonged to the new firm, applied their proceeds upon such indebtedness in good faith, and subsequently, and in reliance upon such payment, discharged a guarantor to them of the indebtedness of the old firm.</p> <p>In an action brought by a receiver of the new firm against Drexel, Morgan & Co. to recover the amount of such checks, it was</p> <p>Held, that the complaint was properly dismissed;</p> <p>That while, by the receipt of the checks, the defendants were chargeable with knowledge that the fund upon which they were drawn was in .possession of the new firm, they were not chargeable with, the knowledge that such fund belonged to the new firm;</p> <p>That the defendants were as much entitled to indulge the presumption that the new firm held money belonging to the, individual partners of the old firm as that Field in drawing the checks was perpetrating a fraud upon his copartners in the new firm;</p> <p>That it was immaterial that at the time the checks in question were drawn the new firm was insolvent.</p>

<p>Segligence—cross-examination of an expert — measure of damages.</p> <p>In. an action in which a railroad corporation is charged with negligence, an expert witness for the defendant who has described the proper construction of locomotive engines used by such railroads, and has stated that, in his opinion, there were no better appliances in general use than those which he had described to the jury, may be asked, upon his cross-examination, whether a locomotive properly constructed, kept in good condition, and carefully used, could emit from the smokestack or ash pan ashes or cinders of the size of an inch and a half; and his answer, that such a result would indicate carelessness, is competent evidence for the plaintiff.</p> <p>A verdict for §3,750 as damages sustained by reason of the death of a girl fourteen years of age, is not so excessive as to justify the appellate court in setting it aside.</p>

Appeal by tlie plaintiffs, Alexander H. Yan Cott and another, as executors, etc., of Kate Yan Cott Mitchell, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 8th day of October, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme Court held in and for the county of Kings, and also from an order bearing date the 25th day of June, 1896, and entered in…

<p>Appeal by the plaintiff, Alfred Lindsay, from so much of an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 17th day of June, 1896, as overrules the plaintiff’s demurrer to the second defense contained in the third subdivision of the defendants’ second amended answer.</p> <p>Also, an appeal by the defendants, Mary M. Gager and Frank F. Abbot, as sole executors, etc., oí O. A. Gager, deceased, from so much of said judgment at sustains the plaintiff’s demurrer to the third separate defense contained in the fourth subdivision of the defendants’ second amended answer, and to the fourth separate defense contained in the fifth subdivision of said answer.</p>

Appeal by the defendants, Margaret Worthington, individually and as administratrix of Richard Worthington, deceased, and others, from- an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 9th day of October, 1896, granting leave to the defendant, The .¿Etna Life Insurance Company, to serve a supplemental answer in the action.

<p>. Appeal by the defendants, William D> Halstead 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 31st day of July, 1896, adjudging the defendant William B. Halstead guilty of a contempt of court and imposing upon him a fine of $200 and directing that he stand committed to jail until said fine be paid.</p>

Appeal by the defendant, Patrick Lyons, from a judgment of the County Court of the county of Queens in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 4th day of December, 1895, upon the verdict of a jury rendered by direction of the court after a trial before the Queens County Court.

<p>Compensation of a milage hom'd of health —■ rejection of a claim on the ground of want of power to pay it— the remedy is not hy certiorcm.</p> <p>Where a member of a village board of health presents a bill for his services to the board of trustees, and they reject it because of a supposed want of legal power on their part to pay it, his remedy is not by certiorari.</p> <p>Under such circumstances it cannot be said that the board of trustees have exercised any judgment whatever in reference to the fairness and reasonableness of the compensation asked.</p> <p>Semble, that since the passage of chapter 480 of the Laws of 1895, a member of a village board of health is entitled to a fair and reasonable compensation for his services, to be fixed by the board of trustees of the village, notwithstanding the fact that when he took his office no appropriation for that purpose had been made by the trustees pursuant to that statute.</p> <p>Certiorari issued out- of the Supreme Court, and attested on the 25th day of August, 1896, directed to the Board of Trustees of the Village of Haverstraw and others, commanding them to certify and return to the office of the clerk of the county of Rockland all and singular their proceedings in regard to the relator’s claim for compensation as a member of the board of health of the village of Haverstraw for the year ending May 1, 1896.</p>

<p>Negligence — risks of the employment — knowledge and, notice thereof.</p> <p>An employee in a sugar refinery, who had for nineteen or twenty days been engaged in wheeling sugar to a grating consisting of parallel iron bars four and one-quarter inches apart, and which he knew covered machinery (although he testified that he did not know how far below the grating such machinery was), was set at work emptying the contents of certain bags upon the grating, and soon afterward, while emptying a bag, took hold of an adjacent elevator, from which his hand slipped, and as he put his foot forward to save himself he stepped through the grating, where his leg was cut and crushed in the machinery.</p> <p>Held, that the employee, under the circumstances, had assumed the risk of the employment;</p> <p>That his employer was not chargeable with negligence because of its not having warned the employee of a risk, with which he was already sufficiently acquainted, to put him upon his guard against it.</p>

<p>Charitable and reformatory institutions, not controlled by the board of charities, are not entitled to public moneys — effect of the Constitution of 1894 — chapter 169 of 1877 is repugnant to the Constitution in so far as it commands payment.</p> <p>A construction of a constitutional provision which may operate to defeat and nullify the purpose and object of such provision must be rejected.</p> <p>By sections 11-15 of article 8 of the Constitution of 1894 a new scheme for the government of charitable, correctional and reformatory institutions in this State was enacted, and a new method of procedure prescribed where public moneys are to be applied in support of any such institutions.</p> <p>In the latter respect such provisions are self-enforcing-and operate as a repeal and abrogation of all statutes in conflict with or repugnant to them.</p> <p>The provisions of section 14 of said article 8, that “payment hy -comities, cities, towns and villages to charitable, eleemosynary, correctional and reformatory institutions, wholly or partly under private control, for care, support and maintenance, may be authorized, hut shall not he required hy the Legislature,” and that " no such payments shall be made for any inmate of such institutions who is not received and retained therein pursuant to.rules established by the State Board of Charities,” operate to modify all statutes, existing at the time of the adoption, of such provisions, requiring any of the political divisions of. the State to apply public moneys in support of such an institution, by abrogating the requirement and leaving simply an authorization to pay.</p> <p>The passage hy the Legislature- of an act (Chap. 574 of the Laws of 1895) authorizing the payment of public moneys hy the several political divisions of t-lie State, following immediately upon the adoption of the Constitution and in pursuance of its provisions, is a contemporaneous act, places practical construction upon such provisions, and as such is entitled to weight in the construction of the provisions themselves.</p> <p>Chapter 169 of the Laws of 1877, providing that the comptroller of the city-pf Brooklyn should pay to the treasurer of the Inebriates’ Home for Kings county fifteen per cent of the excise moneys, is repugnant to the provisions of the Constitution of 1894, so far as it commands such payment to he made.</p>

Appeal by the plaintiff, Jesse Oarll, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Suffolk on the 17th day of October, 1896, upon the dismissal of the complaint upon the merits directed by the court after a trial before the court and a jury at a Trial Term of the Supreme Court held in and for the county of Suffolk.

<p>Contract to builcl a, public bridge —liability for neglect to repair a temporary one— the fall of a bridge is evidence of want of repair</p> <p>Where a covenant contained in a contract (with a board of supervisors) for the building of a public bridge imposes upon the contractors an absolute duty to-keep a temporary bridge in good repair during the progress of work upon the main structure, such contractors become liable for neglect of duty in connection with the obligation thus assumed, and such neglect creates a right of action in favor of a person who suffers injury from the fall of the temporary bridge-as a consequence thereof.</p> <p>In such a situation the duty of the contractors to repair is absolute, and they cannot relieve themselves from liability by asserting that they had not been notified by the engineer, who was the servant of the supervisors, that repairs were needed.</p> <p>It seems, that where a bridge falls because of a load, not in excess of what the bridge ought to hear, the fact that it falls is some evidence of the lack of proper repair.</p>

<p>Assessment of elevated railroad structure—no allowance for the competition of surface roads — the assessment roll cannot he attacked collaterally, nor can the assessors impeach it — depositions, not taken for such purpose.</p> <p>Where, in an action brought by an elevated railroad company to procure an adjudication that an assessment made for the purposes of taxation is illegal and void, no claim is made that the assessment of the structure of the elevated railroad is unequal, in that the structure is assessed higher than other property in the same city, or higher than property of a similar class, or higher than surface street railroad property (except as the latter is exempted from taxation on real estate), and where no proof is made of a substantial deterioration in the structure i.tself, the corporation assessed has no legal ground of grievance.</p> <p>In determining the value of an elevated railroad structure for the purpose of taxation, no allowance can be made for the fact that its earnings have been decreased by the competition of street surface roads; nor does the corporation assessed acquire any equitable right against the city to have this result considered in reduction of its taxes, beyond an examination of its effect upon the value of its structure where the construction of the street surface road has affected the value of the structure of the elevated railroad.</p> <p>The failure of the elevated railroad company to realize a profit from i'ts business does not relieve its structure from taxation.</p> <p>When an assessment roll is made up, it partakes of the character of a judgment, and the acts Of the assessors having jurisdiction thereof in making it up are judicial in their character and final, and cannot be attacked collaterally; where the action of the assessors is sought to be assailed by one of the assessors who has certified under the statute that he performed his duty as an assessor he will not be heard to impeach his own act.</p> <p>Permitting him to do so would be against public policy.</p> <p>No right exists, under cover of securing depositions, to enter upon an examination which seeks to show that assessors, in the performance of official duty, which they have certified they performed, in fact violated the law. Evidence secured in this manner is without the sanction of law and may not be considered.</p>

<p>Negligence — acts of a brakeman in walking on planking at a station thirty feet to stationary cars, in front of an approaching train, to couple it to them —liability for defects in the planking.</p> <p>In an action to recover damages for personal injuries caused by the alleged negligence of the defendant, a railroad corporation, it appeared that the plaintiff, who was a brakeman in the defendant’s employ, stepped upon the track in front of the platform at one of defendant’s stations, at a point from thirty to forty-five feet from certain stationary cars, in order to couple them to other cars which were slowly moving down towards them. In front of the station a plank walk had been laid for the convenience of persons rightfully upon the defendant’s premises, and in the planking between the rails there was a rotten board, the edge of which was split and broken, and sprang up and down when stepped upon, and upon the plaintiff’s stepping upon this board his foot slipped into a space four or five inches wide between the plank and the rail, and he, being unable to release himself, was run over by the slow moving cars in li:'s rear. It appeared that, although there was a space of two feet between the platform and the nearest rail of the track upon which the plaintiff stepped, this space was not sufficient to walk in, when a train was in motion.</p> <p>Upon the trial the complaint was dismissed.</p> <p>Held, that the planking was dangerous and in the nature of a trap, and that it subjected the defendant to the imputation of negligence;</p> <p>That the plaintiff had the right to assume that the walk was safe, and that he was not required to use extraordinary care in looking for holes in it;</p> <p>That the question of whether the plaintiff was guilty of contributory negligence in going upon the track at such a distance from the stationary cars was one for the jury to decide.</p>

Appeal by the defendant, The Trustees of the New York and Brooklyn Bridge, 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, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme Court held in and for the county of Kings, and also from an order entered in said clerk’s office on the 3d day of June, 1896, denying the defendant’s motion for a new…

<p> Bepeal of a local bill—when the title of a legislative act sufficiently expresses its subject. </p> <p>Where the title of an act of the Legislature expresses the subject-matter of the legislation, and fairly and reasonably suggests the contents of the act, these being germane to the title and facilitating the accomplishment of what the legislation contemplates, the act is not obnoxious to section 16 of article 3 of the Constitution, which provides that “no private or local bill, which may be-passed by the Legislature, shall embrace more than one subject, and that shall ■ be expressed in the title.”</p> <p>Chapter 772 ol the Laws of 1896, entitled “An act in relation to the office of the district attorney of the county of Kings, providing for the election of district attorney and the appointment of clerks, stenographers and county detectives for said office,” which by its terms repeals chapter 105 of the Laws, of 1892, which created the offices of county detectives for' Kings county and attached them to the district attorney’s office, is not in its repeal of the act of 1892 obnoxious to section 16 of article 8 of the. Constitution.</p>

<p>Appeal by the defendant, Everett Barnes, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 2d day of September, 1896, upon the report of a referee.</p>

<p>Appeal by the defendant, The Steinway Railway Company of Long Island City, 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 12th day of June, 1896, upon the verdict of a- jury rendered after a trial at a Trial Term of the Supreme Court held in and for the county of Queens, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 12th day of June, 1896, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by Frank P. Demarest from an order of the Supreme Court, bearing date the 13th day of July, 189G, made at the Orange Special Term and entered in the office of the clerk of the county of Rockland, directing him to pay to Kate R. Tevis the sum of $1,000.

Appeal by William W. Goodrich, as receiver of the Union Warehouse Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 9tli day of July, 1895, denying his application to compel the Brooklyn Wharf and Warehouse Company, a purchaser on the receiver’s sale, to pay the remainder of the purchase money.

Appeal by the defendant, Siegbert Balaban, 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 6tli day of June, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme Court held in and for the county of Queens, and also from an order entered in said clerk’s office on the 8th day of June,, 1896, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, The City of Brooklyn, from a judgment of the County Court of the county of Kings, entered in the office of the clerk of the county of Kings on the 10th day of November, 1896, reversing a judgment rendered by a justice of the peace of the city of Brooklyn.

Appeal by the defendant, 0. Louise Snider, as executrix, etc., of Michael G. Snider, deceased, 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 1st day of July, 1896, upon the decision of the court rendered after a trial at the Orange Special Term.

Appeal by the plaintiff, Edward Luhrs, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 23d day of March, 1896, upon the verdict of a jury rendered by direction of the court after a trial at a Trial Term of the Supreme Court held in and for the county of Kings.

Appeal by James F. Deehan, as street commissioner of the village of Richmond Hill, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 22d day of July, 1896, granting a peremptory writ of mandamus commanding James F. Deehan, as street commissioner of the village of Richmond Hill, to forthwith issue to the relator a permit to lay its pipes under and along Broadway in the village of…

Appeal by the defendants, the New Rochelle Water Company and Adrian Iselin, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 28th day of July, 1896, upon the decision of the court rendered after a trial at the Westchester Special Term.

Appeal by the defendant, The Manhattan Bailway 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 June, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme Court held in and for the county of Kings, and also from an order entered in said clerk’s office on the 8th day of July, 1896, denying the defendant’s motion for a new trial made upon the…

<p>Appeal by the defendant, Howard M. Smith, 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 22d day of May, 1896, upon the decision of the court rendered after a trial at the Kings County Special Term.</p>

Appeal by the defendant, Thomas A. Maitland, from a judgment of the County Court of Westchester county in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 4th day of June, 1896, upon the verdict of a jury rendered after a trial at the Westchester County Court.

<p>Appeal by the defendant, The Prudential Insurance Company of America, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 23d day of January, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme Court held in and for the county of Dutchess, and also from an order entered in said clerk’s office on the 23d day of January, 1896, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by Oliver M. Arkenburgh, as executor, etc., of Robert H. Arkenburgh, deceased, from an order of the Surrogate’s Court of the county of Rockland, bearing date the 13th day of April, 1896, and entered in said Surrogate’s Court, revoking the letters testamentary issued to him, with notice of an intention to bring up for review upon such appeal two orders of the Surrogate’s Court, made November 16, 1895, and January 11,1896, and entered in said Sui’rogate’s Court upon…

<p>Matrimonial actions — no allowance can he made for past expenses— Code of Civil Procedure, § 1769 —■ stipulation.</p> <p>The court can only make an allowance to a wife, to be paid by her husband for expenses to be incurred during the pendency of a matrimonial action, and has no power to grant an allowance for past expenses incurred in its prosecution or defense.</p> <p>Where a wife makes a motion for an allowance to pay the expenses of the prosecution of a pending matrimonial action, and on the day when the motion is to be heard the action is tried and fully determined in her favor, and there remains nothing for her to do except to enter judgment upon the decision, there is nothing to justify an allowance.</p> <p>Quare, whether the right, to an allowance, as it originally existed, can in such a case be preserved by stipulation.</p>

Appeal by the defendant, Christian F. Winkemeier, from so much 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 24tli day of January, 1896, as awards to the plaintiff’s attorney the further counsel fee of $500 in the action.

<p>Slander — sufficiency of a complaint imputing the crime of rape — words actionable per se — when an innuendo is unnecessary.</p> <p>In. an action, of slander for imputing the commission of a crime to the plaintiff, it is unnecessary to state in the complaint the facts with the same precision as is requisite in an indictment.</p> <p>A complaint in an action for slander, which alleges that the defendant, in 1896, at White Plains, H. Y., in the presence and hearing of certain persons named, maliciously spoke of and concerning the plaintiff the following false and defamatory words: “I-Iave you not heard the scandal about Dudley ? He is the father of a child by a young girl not yet fifteen years old, not until this autumn, and you know that means sixteen years in State prison,” and that the defendant “knew Mr. Dudley had been criminally intimate with a girl by the name of Mamie Boyle, a child under fifteen years of age,” states a sufficient cause of action, and imputes the crime of rape in the second degree, and no allegation that the defendant intended to impute a crime to the plaintiff, or that the defamatory words were so understood, is necessary.</p> <p>Where words, as spoken, can be understood to impute a crime, they are prima facie actionable, and no innuendo is necessary.</p>

Appeal by the defendant, William M. Beebe, from a judgment of the County Court of the county of Suffolk, entered in the office of the clerk of the county of Suffolk on the 4th day of August, 1896, upon the report of a referee.

<p> When the issues, as to the validity of a codicil, will be ordered, tried by a jury. </p> <p>Where a codicil to a "will is attacked upon the ground of undue influence, and the disposition, made in the Surrogate’s Court, of the questions of fact presented by the evidence is not free from doubt, and the result reached by that court is not entirely satisfactory, the case will be sent to a jury for reconsideration.</p>

. Appeal by the plaintiff, Deborah L. Mangam, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 15th day of February, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme Court held in and for the county of Westchester, and also from an order bearing date the 6th day of February, 1896, and entered in said clerk’s office, denying the plaintiff’s motion for a…

Appeal by the defendant, The County of Richmond, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 3d day of October, 1896, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by William Haubennestle, the county treasurer of Dutchess county, from a decree of the Surrogate’s Court of the county of Dutchess, entered in said Surrogate’s Court on the 16tli day of July, 1896, reversing an order confirming the report of an appraiser appointed under the Transfer Act Tax, and dismissing the proceedings.

<p>Assessment for grading, etc., an avenue — not conforming to the authorized line— remedy in equity — cloud upon title—costs.</p> <p>Where grading commissioners grade and construct an avenue upon a different line or course from that authorized, and the effect of the change is to increase the depth of some lots and decrease the depth of other lots of a property owner beyond that in the established assessment district, and also to make a lot of such owner, which had already been assessed for the benefits to be conferred by the grading and construction of the avenue, part of the avenue as so constructed, such action constitutes a trespass, and an assessment to pay for the cost of the wrongdoing cannot legally be laid on the lands affected thereby. Where, in such a case, the facts on which the invalidity of the assessment is based do not appear upon the record, an action may properly be brought in equity to vacate and set aside the assessment as a cloud upon the plaintiff’s title. Where a collector of taxes for a city is not vested with any power to collect an assessment by process of law, the mere fact that he has issued bills for a part of the assessment and is seeking to enforce their payment, will not entitle the owner of the lands to any affirmative relief against him in a court of equity. Where an illegal assessment is levied by a town, and the town is subsequently incorporated into a city, the latter, if it is in no manner responsible for the acts which invalidated the assessment, should not be charged with the costs of an action brought by the owner of the lands improperly assessed to vacate and set aside the assessment.</p>

<p>Appeal by the plaintiff, the Albany Hardware and Iron Company, from an order of the Sirpreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 8th day of January, 1896, vacating an order of arrest.</p> <p>The plaintiff sold goods to the defendant upon credit. Such sale was induced by representations made by the defendant to the agent of the plaintiff, to the effect that he was solvent, was worth $1,800, and that his liabilities did not exceed $100. When the purchase price became due the defendant defaulted in its payment, and the plaintiff thereupon brought an action for the same, recovered a judgment by default and issued execution thereon. Such execution was returned wholly unsatisfied. By supplementary proceedings instituted thereon the plaintiff discovered that the representations by which it had been induced to make the sale were utterly false and fraudulent. It thereupon brought this action to recover damages for the fraud and deceit so practiced upon it. It procured an order of arrest against defendant from the county judge of Albany county, which was vacated by an order of the Special Term. From such latter order this appeal is taken.</p>

<p>Application by the Long Lake Railroad Company to the Appellate Division of the Supreme Court for the certificate required by section 59 of chapter 565 of the Laws of 1890, as amended by chapter 616 of the Laws of 1892, upon a certified copy of all maps and papers on file in the office of the Board of Railroad Commissioners of the State of Mew York in the matter of the application of said railroad company for such certificate, said board having, by an order made at the capítol in the city of Albany on the 11th day of November, 1895, denied the application of said railroad company for such certificate.</p>

Appeal by the defendant, the Mutual Life Association of the City of Brooklyn, N. Y., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 14th day of April, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme Court held in and for the county of Albany, and also from an order entered in said clerk’s office on the 9tli day of June, 1896, denying the defendant’s…

Appeal by the Employees, Operatives and Laborers of the Northern Adirondack 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 Franklin on the 21st day of February, 1896, directing the payment of a sum of money to one “John P. Badgei*, Esq., to be by him distributed jury rata among such creditors by him as attorney herein represented,” and also from an order, made at the Clinton…

<p>Appeal by the defendant, the United Life and Accident Insurance Association, from a 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 February, 1896, upon the verdict of a jury rendered by direction of the court after a trial at a Trial Term of the Supreme Court held in and for the county of Tompkins, and also from an order entered in said clerk’s office on the 3d day of February, 1896, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p> Summary proceedings—pi'oof as to the service of a demand for the rent. </p> <p>In summary proceedings, instituted because of a default in the payment of rent, proof of the service of a demand for the rent, evidenced only by the testimony: “ Q. Did you serve a notice upon him to pay or surrender the premises ? A. I did,” is insufficient, inasmuch as it does not show in what method the “service ” was made.</p> <p>The fact of service of a demand in one of the ways prescribed by section 3340 of the Code of Civil Procedure is a jurisdictional fact which the petitioner must establish, and it is not incumbent upon the occupant to show that he did not receive any such demand or notice.</p>

Appeal by the plaintiff, John H. Titus, as administrator, etc., of Alexander Whitford, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Greene on the 24tli day of March, 1896, upon the dismissal of the complaint upon the merits, directed by the court, after a trial before the court and a jury, at a Trial Term of the Supreme Court held in and for the county of Greene.

<p>Appeal by the defendants, John IT. Sutton and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Albany on the 25th day of May, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme Court held in and for the county of ■ Albany, and also from an order entered in said clerk’s office on the 29th day of May, 1896, denying the defendants’ motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, The Village of Glens Falls, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clej-k of the county of Warren on the 15th day of June, 1896, upon the verdict of a jury rendered after a trial-at a Trial Term of the Supreme Court held in and for the county of Warren, and also from an order entered in said clerk’s office on the 16th day of June, 1896, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>The action was brought to recover damages for personal injuries, resulting from the plaintiff’s being thrown from his carriage by reason of his horse becoming frightened at a steam roller owned by the defendant, which was being propelled through one of the defendant’s-public streets, without warning of its approach having been given.</p>

Appeal by the defendants, The Delaware, Lackawanna and Western Railroad Company 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 Tompkins on the 27th day of July, 1896, upon the decision of the court rendered after a trial at the Tompkins Special Term, awarding a peremptory mandamus in favor of the plaintiff and against the defendants, requiring the defendants to cause Cayuga street in the city…

<p>Attorney and client — right of one claiming under a receiver of the client to have a new attorney substituted.</p> <p>An attorney who has entered into an agreement with the owner of a bond and mortgage that he is to receive, in an action brought for its foreclosure, one-half of the recovery, together with the costs, in the absence of proof of misconduct or delay upon his part, should not be removed, and another attorney be appointed in his place, on the application of a purchaser of the bond and mortgage at a sale thereof by a receiver, appointed in supplementary proceedings instituted against the original owner of said bond and mortgage, but should be allowed to continue in charge of the prosecution of the action in which he is himself so largely interested.</p>

<p>Appeal by James Dillon from a decree of the Surrogate’s Court of the county of Montgomery, entered in said Surrogate’s Court on the 12tli day of September, 1896, directing him to pay to John J. Hand, the executor of the last will and testament of Mary Carey, deceased, the sum of $900 with the costs and expenses of the proceeding.</p> <p>The proceeding in which the order appealed from was made was one taken under sections 2707, 2708 and 2709 of the Code of Civil Procedure.</p> <p>Upon the petition of the executor, the surrogate, on the 17th of July, 1896, issued a citation directed to James Dillon, requiring him personally to appear before such surrogate at his office, at the time and place mentioned in such citation, to attend an inquiry concerning certain personal property belonging to the estate of Mary Carey, deceased, alleged to be in his possession and control, and to be examined in regard to the same.</p> <p>Dillon appeared personally and was examined, upon which examination it appeared that he was the nephew of Mary Carey, deceased, and for some two years or more before her death had taken charge of her financial affairs, had collected moneys due her, and paid bills for her from time to time, of which it appeared that he kept no regular or stated account. She gave him money from time to time, and he stated upon his examination that when he gave her the last money she said to him that he should take it, and if anything happened to her he should have it, and he says that he understood that when she died he was to have her money. He swears that all he had at the time of his examination was the sum of $400, and that the reason that he had not turned it over to the executor was that he had not yet secured it.</p> <p>Dillon apparently received about the sum of $1,812. He gives various items of expenditure made for Mary Carey and in her behalf, but does not claim to have kept an accurate account, but according to the accounting made the surrogate has charged him with having a balance of $900.</p>

<p>Appeal by the defendant, the Penokee Lumber Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 8th day of January, 1895, upon the report of a referee.</p> <p>The plaintiff is the surviving member of the copartnership of Saxe Brothers, a copartnership which was engaged in the business of buying and selling lumber; the defendant is a corporation engaged in the business of manufacturing lumber, having mills in Wisconsin, and its principal office at Tonawanda, IST. Y.</p> <p>On the 31st day of January, 1890, the defendant sent to Saxe Brothers a letter, winch in part reads as follows: “We hereby offer you, for prompt acceptance, lumber on the following prices, terms and conditions: Quantity of lumber to be six million feet, quality No. 2 cutting up and better, the whole guaranteed to average as good a quality as our 5-4 and 6-4 sold to you by A. M. Dodge & Co., of this place last autumn. The above six million feet of lumber is to be sawn from logs we are now getting out in Ashland Co., Wis., to be sawn at our mills at Morse Station, Ashland Co., Wis.” Then follows a statement of the dimensions of the lumber to be furnished. Then the following: “ Delivery of above lumber to be f. o. b. canal boats at this place, we undertaking to deliver about 2 million feet on or before about July 1, ’90, about !■£■ million feet during the month of July, about 1-|- million feet during the month of August, and the balance during the month of, September next; and in the event of all not being delivered before Oct. 1, ’90, we are to pay such canal freight on any balance which we deliver after that date as may be in excess of the average rate of canal freights on such of this lumber as we deliver during the month of September next.”</p> <p>This lumber was to be furnished at the price of twenty-nine dollars and fifty cents per 1,000, but, by a subsequent letter, the first one was modified so that the amount of lumber to be furnished was 4.000. 000 feet, and the price twenty-eight dollars and fifty cents per 1.000, which Saxe Brothers agreed to pay, and to advance upon the purchase price the sum of $40,000. They further agreed that,' as the shipments of this lumber should be from time to time received by them, they would apply one-half of the contract price thereof upon such advancement of $40,000 and pay the remaining one-half of such price to the defendant. Subsequently, some question arising between the parties, the defendant, on the 15tli day of September, 1890, agreed that the lumber thereafter delivered under the contract should be at the price of twenty-seven dollars and fifty cents per 1,000.</p> <p>The mills of the defendant are known as the Penokee Mills, and the lumber manufactured by it is known as Penokee lumber.</p> <p>For reasons which appear in the correspondence between the parties, and in the testimony in the case, it would seem that the defendant found itself unable to saw and put into merchantable shape at its mills a sufficient amount of lumber to meet the requirements of the contract during the season of 1890; and on the 31st day of October, 1890, in a letter directed to Saxe Brothers, the defendant said: “We have to say we cannot complete contract with you this season;” and in a letter dated November 4, 1890, amongst other things, appears the following : “ Kindly advise us as early as possible whether you wish to cancel contract, or have us complete same as early as possible next season.”</p> <p>On November 6, 1890, the defendant wrote a letter to Saxe Brothers, a portion of which reads as follows: “We hereby withdraw our statement that we cannot complete contract this season, and ask if you will accept, instead of Penokee stock, other lumber equally good and very similar to it in the matter of Avidth, texture, dryness, etc.?”</p> <p>On the 5th of November, 1890, Saxe Brothers, in a letter directed to the defendant, say: “ As to your question whether ‘ we wish to cancel the contract or have you furnish the lumber in the spring,’ we can only ansAver by saying that we have sold the stock, or rather a large portion of it, and wish it sent forward this fall.”</p> <p>On the 12th of November, 1890, Saxe Brothers received 276,296 feet of lumber, amounting at the contract price to the sum of $7,598.14. Instead of applying one-half of such amount upon the balance of the $40,000 due them, and sending the balance thereof to the defendant, they applied the whole amount thereof with the exception of $146.39, for which amount they sent a check to the defendant, balancing up the account between the parties. This was the last shipment of lumber by the defendant to the plaintiff’s firm. The defendant delivered to the plaintiff’s firm 2,791,100 feet of lumber, being a shortage on the contract of 1,208,900 feet.</p> <p>In August, 1891, the plaintiff’s firm commenced this action against the defendant, alleging a breach of contract and damages.</p> <p>Upon the trial the defendant asserted that the first breach of the contract was upon the part of Saxe Brothers in refusing to pay over to it one-half of the contract price of the lumber received on the 12th of November, 1890.</p> <p>The plaintiff asserted that the letters, extracts from which are above set forth, in which the defendant announced its inability to complete the contract, constituted a breach on its part, and that the withdrawal of that statement in the letter of November sixth, was only a conditional one, the condition being the acceptance of other lumber instead of Penokee stock.</p> <p>The referee found against the defendant upon the questions thus raised, and found the measure of damages to be “ The difference between the purchase price of the lumber, to wit, $27.50 per thousand feet, and its market value at the time and place of delivery, to wit, $32.50 per thousand feet.”</p> <p>The referee based his finding that the market value of the lumber at the place of delivery was thirty-two dollars and fifty cents per 1,000 feet, upon a letter of the defendant dated September 5, 1890, in which the defendant argumentatively asserted the value of the lumber to be thirty-two dollars and fifty cents per 1,000 feet. The president of the defendant, who wrote the letter, upon examination as a witness, swore that he meant by that, that he believed “ They would have a gross profit of about $5.00 per thousand feet by selling it out in small lots.”</p> <p>Other facts and evidence will be adverted to hereafter in the discussion of the case.</p>

<p>Appeal by the defendant, John Bennett, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 31st day of December, 1895, upon the verdict of a jury rendered after a trial at the Albany Circuit, and also from an order entered in said clerk’s office on the 9th day of December, 1895, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, The Graves Elevator Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Essex on the 12th day of November, 1895, upon the report of a referee, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 12th day of November, 1895, granting the defendant an additional allowance of five per cent upon the amount involved.

<p>Sate of chattels — when the title thereto passes by an indorsement of a bill of lading.</p> <p>Where A. ships chattels to the point of delivery, consigned to his own order, and indorses upon the bill of lading a direction to deliver the chattels to B., and B. subsequently signs an indorsement on the bill of lading directing that the goods be delivered to a third person, the transaction operates to transfer the title of the chattels.</p> <p>Under what circumstances the finding of a jury that a sale has taken place will not be disturbed, considered.</p>

<p>Certiorari issued out of the Supreme Court and attested on the 10th day of June, 1896, directed to James A. Roberts, Comptroller of the State of Hew York, commanding him to certify and return to the office of the clerk of the county of Albany, all and singular, his proceedings relating to the assessment for taxation of Badische Anilin and Soda Fabrik, a corporation.</p> <p>The relator is a corporation organized under the laws of the Grand Duchy of Baden in the Empire of Germany, and is engaged in the manufacture and sale of chemicals; it has its office and manufactory and carries on its business at Ludwigshafen in the Kingdom of Bavaria, where its corporate books and books of account and record are kept, and where all the meetings of its directors have been uniformly held. All its officers and directors are residents and citizens of Germany.</p> <p>It is alleged by the relator in its petition, and admitted by the Comptroller in his return, that in 1819 the relator became a special partner in the limited copartnership of Pickhardt & Kuttroff in the city of Hew York. The articles of copartnership show that William Pickhardt and Adolph Kuttroff and the relator constituted such limited copartnership; the relator contributed the sum of $150,000 to the capital stock of such copartnership, and each of the other partners a like amount.</p> <p>Both Pickhardt and KuttrofE were stockholders in the relator corporation, but sold out their stock some ten years ago.</p> <p>Pickhardt tfc KuttrofE are engaged in the business of importing chemicals, and have the sole sale of the relator’s products in this country; such products are brought into this country in the original packages and are sold in the same way; they are shipped to the estabislnnent of Pickhardt & KuttrofE, in the city of Mew York, and to any other part of the United States to which they may be directed by said firm. Said firm pays the relator for the goods so alleged to be purchased, by bills of exchange and remittances from Mew York. A yearly statement of the business of the copartnership is made to the relator.</p> <p>In 1895 the relator drew the sum of $54,000 from the copartnership as its share of the profits as special partner; the average yearly profit received by the relator was the sum of $45,000.</p> <p>In 1895 the Comptroller assessed the relator for taxes for sixteen years, ending Movember 1, 1895, with a penalty of ten per cent, amounting in all to the sum of $3,960, appraising the value of the capital stock of the relator employed in this State at the sum of $150,000.</p> <p>Application was thereupon made to the Comptroller for a revision and readjustment of the account and tax against the relator, and a rehearing was had, and on the 13th day of May, 185)6, the Comptroller rendered his decision, declining to make any revision or readjustment of the tax which had been imposed. Whereupon the relator obtained the writ of certiorari for the purpose of reviewing the decision of the Comptroller which is now before us.</p>

<p>Appeal upon exceptions alone— the respiondent has no right to have emdm.ee inserted in the appeal hook.</p> <p>A party desiring to appeal from a judgment entered upon the decision of the court is not obliged to prepare a case to be settled as required by section 997 of the Code of Civil Procedure, but he may (under section 998 of that Code) take exceptions to the findings of the trial court upon questions of law and have his appeal heard upon those exceptions without any case.</p> <p>A party who elects to appeal simply upon the exceptions taken to the findings of the trial court, upon questions of law, cannot be deprived of that right by the opposite party’s insisting upon having the evidence taken on the trial inserted in the appeal book.</p>

Appeal by tbe plaintiff, Elizabeth Fern, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Otsego on the 31st day of May, 1895, upon the report of a referee dismissing the plaintiff’s complaint.

<p>Malicious prosecution—effect of a discharge upon habeas corpus — not proof that the prosecution has ended.</p> <p>An action for malicious prosecution cannot be maintained until the proceeding complained of has been legally terminated in favor of the accused.</p> <p>Such an action, brought two days after the plaintiff, on the return to a writ of haleas corpus, had been discharged from imprisonment under a commitment to await the action of the grand jury upon a charge of larceny, and before the grand jury had considered the case, cannot be maintained.</p> <p>Suck a discharge has no effect, except to relieve the accused from imprisonment until the grand jury shall pass upon his case, and cannot be said to operate as a termination of the criminal proceeding in his favor.</p> <p>Where an action for malicious prosecution is thus commenced, it is not competent to prove that no further proceedings were taken in the criminal prosecution after the commencement of the civil action.</p> <p>In an action for malicious prosecution the court will not, before the criminal proceedings are ended, examine into the merits to ascertain the extent of the lack of foundation for the criminal charge in order to determine whether or not the rule that the criminal proceedings should be first terminated should be applied.</p>

<p>Appeal by the plaintiff, Ira W. Ketchum, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Warren on the 13th day of June, 1896, upon the dismissal of the complaint, directed by the court after a trial before the court and a jury at a Trial Term of the Supreme Court held in and for the county of Warren.</p> <p>The complaint alleges “that, some time in the latter part of March, 1894, plaintiff and defendant entered into an oral agreement as follows: That if plaintiff and his wife would go onto defendant’s farm and work the same and do the housework and furnish meals, for defendant and his wife, the defendant would make and enter into a written agreement with plaintiff whereby the said defendant should let and lease unto plaintiff defendant’s farm in the town of Queensbury, Warren county, Hew York, for the term of one year from the first day of April, 1894, upon the following terms and conditions, to wit: The plaintiff should furnish one horse, do the farm work, keep the house and furnish said defendant and his wife their meals during said year. The defendant should furnish one horse, hay and grain to feed the team, and all the farm produce then on the place and all the produce raised on said farm during said year was to be the property of plaintiff. The defendant was to conduct himself in a proper, courteous and becoming manner toward plaintiff and his said wife. The defendant agreed to enter into said written contract as soon as plaintiff and defendant could go together to defendant’s attorney’s office. That the defendant further agreed to have said contract contain a provision that if the parties were agreed and were suited with the arrangement at the expiration of said year, that the contract should be continued during the lifetime of defendant and his wife, and at the decease of defendant the plaintiff should have the said farm and all that remained of all the property of defendant as his own, to thereafter have and to hold to himself, his heirs and assigns forever.”</p> <p>Then follow allegations that the plaintiff and his wife, pursuant to said agreement, went upon the farm of the defendant and worked the same, the plaintiff’s wife doing the housework and furnishing the meals for the defendant and his wife; that the plaintiff and defendant went to the office of defendant’s attorney, stated to him the terms of the agreement and requested him to reduce it to writing, the defendant agreeing to execute the same when it was put in writing, but that thereafter he refused to execute it, although often requested by the plaintiff so to do ; that the defendant did not conduct himself in a proper, courteous and becoming manner, but was peevish, meddlesome, quarrelsome and ugly, and that plaintiff quit the employ of defendant on or about the 30th of May, 1894, and left the farm. Then follows a statement of the services alleged to have been rendered and performed for the defendant upon his farm by the plaintiff, his horse and his wife, and of materials furnished, and a statement of the value of such services and materials; that the defendant has not paid for the same or any part thereof, and concludes with a demand for judgment against the defendant for the sum of $257.65, being the alleged value of such services and materials, besides the costs of the action.</p> <p>Upon the case being moved for trial, and before any evidence was introduced, the defendant moved for a dismissal of the complaint upon the ground that the same did not state facts sufficient to constitute a cause of action. The motion was granted and judgment was entered accordingly.</p>

<p>A devise in fee cut down by a subsequent devise'— what dame covers a death either before or after that of the testator — a codicil is a republication of the will — implied power of disposition.</p> <p>The- execution of a codicil referring to a will amounts to a republication of such will and operates to bring the will down to the date of the codicil.</p> <p>The will of Benjamin F. Miller bequeathed all of his estate, both real and personal, to his daughter Lucy and to her heirs and assigns forever, appointing his executors her guardians and giving them power during her minority to manage the estate, and to lease or sell in fee simple all his lands “ upon condition, however, that in case of the death of my said daughter prior to her attaining the age of twenty-one years, or without issue her surviving, then, and in that case, I devise and bequeath the whole of the residue of my said estate, then in the hands of my said executors, to Anna Darrow, wife 'of Warren F.</p> <p>Darrow, and to their daughter. Edith Darrow, share and share alike, or in case of the prior death of either of them, the whole thereof to the survivor of them, to them, their heirs and assigns forever.” Lucy died in extreme infancy, and before her father, who, after her death, made a codicil to his will which contained simply a direction as to the manner of his burial.</p> <p>Held, that the estate in remainder was not cut off by the rule that “ an estate in fee, created by will, cannot be cut down or limited by a subsequent clause, unless it is as clear and decisive as the language of the clause which devises the estate,” . as the subsequent clause of the will devising the estate to Anna and Edith Darrow upon the happening of certain contingencies was as clear and decisive as the clause devising the estate primarily to his daughter ;</p> <p>That the intent of the testator was to have his estate pass to Anna and Edith Darrow in case the primary devise to his daughter should not take effect, and that the death contemplated by him was her death occurring either before or after his death;</p> <p>That by the use of the word “residue,” in the gift over of the “ residue” of the estate then in the hands of the executors to Anna and Edith Darrow, the testator did not confer any power to dispose of the principal of the estate.</p>

<p>Appeal by Charles L. Hodgman and others, claiming to be residuary legatees under the last will and testament of Frederick D. Hodgman, deceased, from a decree of the Surrogate’s Court of the county of "Washington, entered in said Surrogate’s Court on the 30th day of December, 1895, in a proceeding for an accounting of the executors of the last will and testament of Frederick D. Hodgman, deceased, and also from an order entered in said Surrogate’s Court on the 21st day of Rovember, 1895, denying an application made by the appellants for a commission to take the testimony of certain foreign witnesses.</p> <p>The testator died on the 7th day of December, 1873, leaving a will, which, on the 13th day of February, 1874, Avas duly admitted to probate, and on the same day letters testamentary Avere issued to Philander C. Hitchcock, James Clieesman, Alfred C, Hodgman and Mary E. Hodgman (now Tates), the executors named in said will. The said executors Cheesman and Hitchcock subsequently and prior to the accounting hereinafter mentioned died—The latter on the 27th day of August, 1888, leaving a last will and testament, in which the respondent Asahal R. Wing was named as executor.</p> <p>The surrogate found “ that in the years 1879, ’80 and ’81, the executors of said Frederick D. Hodgman, deceased, settled with the residuary legatees out of court, taking receipts in full of all claims, present and future, against said estate — in the nature of accords and satisfactions from 15 of said residuary legatees, and deeds or transfers of the interests of four other of said residuary legatees, and the said Alfred C. Hodgman Avas the sole remaining residuary legatee; said papers in two or three instances, however, reserved the rights of the signer to a particular piece of real estate. The consideration for said papers amounted in all to the sum of $7,100.</p> <p>“ That the value or amount of said estate at the time of said settlement was uncertain, and could not then be definitely ascertained.</p> <p>“ Each of the petitioners or the residuary legatees, from whom said petitioners received their title or interest, executed one of said receipts or accords and satisfactions, or said deeds and transfer’s.</p> <p>“ All of the petitioners herein except Charles L. Hodgman, Ida Hodgman and George W Hodgman, or the residuary legatees from Avhom said petitioners received their title or interest, also executed assignments or transfers of all their right, title and interest in said estate about the year 1889, which assignments were produced upon hearings herein.”</p> <p>The principal part of the estate came into the hands of Philander C. Hitchcock. In the year 1889, after his death, proceedings were taken by Alfred C. Hodgman to compel an accounting by the personal representatives of the two deceased executors and the surviving executrix, Mary E. Yates, and an accounting was accordingly had. In the said proceeding all residuary legatees and other persons interested in the estate were made parties, and a decree was entered on the 23d day of April, 1892. From that decree the surviving executrix, Mary E. Yates, appealed, and it, with a slight modification, was affirmed by the late General Term. (69 Hun, 484.) The judgment of the General Term was affirmed by the Court of Appeals. (140 FT. Y. 421.) In the decree so affirmed the surrogate found a large balance due from the estate to the executors on account ■ of over-payments made by them. The finding of the surrogate in this regard was criticised by the General Term and the Court of Appeals, but it was held in each of those courts that no error was shown to the injury of the appellant Yates.</p> <p>In April, 1894, a petition was presented to the surrogate of Washington county, by Charles L. Hodgman and fourteen others, as residuary legatees under the will of Frederick D. Hodgman, deceased, for an order opening and vacating the said decree, and asking that said petitioners might be allowed to file objections to the account of said executors, and for other relief The motion was denied by the surrogate, but his decision was afterwards reversed by the General Term. (82 Hun, 419.) An accounting was had before the said surrogate and the decree entered from which this appeal is taken</p>

<p> Negligence —proof as to which of two things caused the accident. </p> <p>The verdict of a jury against a city which permitted a flagstone, four feet square, connecting a plank street crossing with the sidewalk, to become so sunken so as to form, with banks of earth on each side of it, a depression in which water collected and froze, will not be sustained in favor of one who falls upon the street and sustains injuries, but is unable to state whether the accident was caused by slipping upon the ice thus formed or upon the end of the plank crosswalk.</p>

<p>Appeal by the defendant, the Town of Enfield, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Tompkins on the 20th day or March, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme Court held in and for the county of Tompkins, and also from an order entered in said clerk’s office on the 27th day of July, 1896, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Motion by tlie defendant Morrison M. E. Jarvis for a new trial upon exceptions filed to the report of the referee and findings in the interlocutory judgment in an action brought to partition certain real estate in the counties of Albany and Warren in the State of Hew York.</p> <p>The facts are more fully stated in the dissenting opinion of Putnam, J.</p>

Appeal by the defendant, The New Y ork 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 Greene on the 16tli day of March, 1896, upon the verdict of a iury rendered after a trial at a Trial Term of the Supreme Court held in and for the county of Greene, and also from an ordei entered in said clerk’s office on the Gth day of March, 1896, denying the defendant’s motion…

<p>City contract — what is a penalty, and what liquidated damages— duty of a city to assess the cost of an improvement — mistake of an assistant engineer.</p> <p>Where a sum of fifty dollars mentioned in a city contract, to be paid by a contractor for a breach thereof, is spoken of both as a “forfeit” and as “ liquidated” damages, and no damage has in fact resulted to the city from the default of the contractor, the intent, which is to be gathered both from the contract and from the nature and circumstances of the case, will be construed to. be that the fifty dollars was to be considered as a penalty and not as liquidated damages.</p> <p>Where a city, notwithstanding the timely objection of the contractor to any deduction being made from the full amount of the price of a city contract, assesses the parties benefited by the work and collects for the improvement a sum diminished by the amount of an alleged forfeiture claimed to have been incurred by the. contractor by reason of a delay in completing the work, and such forfeiture is not established by the city, the city has failed to discharge its duty in regard to the assessment and becomes guilty of a breach of its charter, and of its contract obligation.</p> <p>A contractor with a city may recover where a mistake has been made by the assistant engineer in giving a wrong line of excavation for the bottom of a sewer which has necessitated the correction of work already done by the contractor.</p>

<p>Appeal by the defendant, the Shepard & Morse Lumber Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of St. Lawrence on the 14th day of November, 1895, upon the report of a referee.</p>

Appeal by the plaintiff, John Bowe, as treasurer of the county of Albany, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Albany on the 1st day of July, 189G, upon the decision of the court rendered after a trial at a Trial Term of the Supreme Court held in and for the county of Albany before the court without a Jm7- The action was brought to recover §500 and interest thereon, the amount of a tax for the…

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

Appeal by the defendant, John B. Westbrook, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Tioga on the 23d day of January, 1896, upon the verdict of a jury directed by the court after a trial before the court and a jury at a Trial Term of the Supreme Court held in and for the county of Tioga, and also from an order entered in said clerk’s office on the 20th day of January, 1896, denying the defendant’s…

<p>Appeal by the plaintiff, Fred D. Berry, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Franklin on the 19th day of May, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme Court held in and for the county of Franklin, and also from an order hearing date the 11th day of May, 1896, and entered in said clerk’s office, denying the plaintiff's motion for a new trial made upon the minutes.</p> <p>The action was brought against the defendant, who was sheriff of Franklin county, to recover for the escape of a judgment debtor of the plaintiff from the liberties of the jail.</p>

<p>Appeal by the defendant, The Glens Falls 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 Otsego on the 28th day of January, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme Court held in and for the county of Otsego, and also from an order entered in said clerk’s office on the 3d day of March, 1896, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>The action was brought upon a policy of insurance issued by the defendant to Alice Withey, the plaintiff’s assignor, September 3, 1894, insuring her against loss by fire for one month upon the following property: “ $300 on Hop Dry Kiln and building, * * * $250 on hops cured and in process of curing, while contained therein, * * * $25 on stove pipe * * * while therein. * * * Privilege is given for the customary and usual process in the curing of hops. The insurance by this policy is to cover only while the permanent or other insurance covering same property, if there be any, is retired or void, on account of the hop-drying process or hazard.” The' fire occurred a few hours before the month expired. There was existing other insurance on the “ Hop House, except during Hop Harvesting, $250,” under a policy of the Otsego County Farmers’ Co-operative Fire Insurance Company for the term of three years.</p> <p>The defenses Avere, first, that the policy was not in force upon the hop house, because the hop harvesting Avas OAer, and, therefore, the Otsego company’s policy Avas in force as to the hop house at the time of the fire; second, an accord and satisfaction of all claims under the defendant’s policy. Further facts are stated in the opinion.</p>

Appeal by the defendant, Timothy A. Clifford, 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 Saratoga on the 28th day of August, 1896, convicting the defendant of contempt of court and fining him the sum of $371.15, being the amount of the judgment recovered against him in the action, because he did not appear for examination, under an order in proceedings supplementary to execution.

<p>Appeal by the defendant, The City of Elmira, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chemung on the rth day of Decem- • her, 1895, upon the verdict of a jury rendered after a trial at the ‘Chemung Circuit, and also from an order entered in said clerk’s ■ office on the lltlx day of May, 1896, denying the defendant’s motion for a new trial.</p>

<p>Appeal by the defendant, The Prudential Insurance Company of America, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 27th day of April, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme Court held in and for the county of Saratoga, and also from an order entered in said clerk’s office on the 9th day of May, 1896, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, Frederick J. Freileweii, from a judgment of the County Court of the county of Ulster, rendered on the 1st day of June, 1896,- affirming a judgment of the Court of Special Sessions held by the recorder of the city of Kingston, convicting the defendant of a violation of section 31 of chapter 401 of the Laws of 1892, known as the Excise Law, for selling lager beer without a license.</p>

<p>Appeal by the defendant, The Travelers’ 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 Warren on the 25th day of June, 1896, upon the verdict of a jury rendered by ■direction of the court after a trial at a Trial Term of the Supreme Court held in and for the county of Warren, and also from an order entered in said clerk’s office on the 22d day of July, 1896, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>In this action both parties consented to a direction of the verdict by the court, but each party requested the court to direct the verdict in its favor.</p>

Appeal by tlie defendants, Lewis P. Kile 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 Cortland on the lltli day of January, 1895, upon the verdict of a jury rendered after a trial at the Cortland Circuit, and also from an order entered in said clerk’s office on the 13th day of April, 1896, denying the defendants’ motion for .a new trial made upon a case containing exceptions.

Appeal by the plaintiff, The Glens Falls Gas Light Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Warren on the-6th day of January, 1896, upon the decision of the court rendered after a trial at the Warren Special Term dismissing the plaintiff’s-complaint upon the merits.

Appeal by the plaintiff, Mary C. Holden, from a judgment of the Supreme Court in favor of the defendant, entered in the office, of the clerk of the county of Saratoga on the 24th day of April,, 1895, upon the verdict of a jury rendered by direction of the court, after a trial at the Saratoga Circuit.

• Appeal by the plaintiff, Casper G. Decker, as receiver, etc., of Francis G. Hall, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Chemung on the 6th day of May, 1896, upon the decision of the court rendered after a trial at the Chemung Special Term dismissing the plaintiff’s complaint.

Appeal by the plaintiff, Isaac Roblee, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Warren on the 23d day of June, 1896, upon the dismissal of the complaint directed by the court upon the opening of the counsel for the plaintiff on a trial before the court and a jury at a Trial Term of the Supreme Court held in and for the county of Warren.

Appeal by the defendant, George E. Marvine, from a judgment ■of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Delaware on the 16th day of April, 1895, upon the verdict of a jury rendered after a trial at the Delaware Circuit, and also from an order entered in said clerk’s office on the 11th day of March, 1896, denying the defendant’s motion for a new trial made upon a case containing exceptions.

<p>-Assault upon a police officer—discretion as to allowing a plea to be withdrawn for the purposes of a motion — a police officer may arrest, without a warrant, a person intoxicated in a public place.</p> <p>It is discretionary with the court whether it will allow a defendant to withdraw his plea of not guilty, in order that he may make a motion to set aside an indictment upon the ground that there were more persons acting upon the grand jury than were by law entitled to act thereon.</p> <p>Although an indictment for assault in the second degree upon a police officer does not state facts showing that the officer assaulted was engaged in the lawful discharge of his duties, the court will not reverse a conviction where it appears that the prisoner was convicted only of an assault in the third degree. A person who is intoxicated in a public place may, under section 85 of chapter 401 of the Laws of 1892, and sections 154 and 177 of the Code of Criminal Procedure, be arrested by a police officer without a warrant.</p>

Certiorari issued out of the Supreme Court and attested on the 12th day of October, 1895, directed to James A. Roberts, as Comptroller of the State of New York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings in assessing a franchise tax against the. relator, pursuant to chapter 542 of the Laws of 1880, and the acts amendatory thereof and supplemental thereto.

<p>Appeal by the plaintiff, 0. Laverne Ludlow, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Tompkins on the 3d day of March, 1896, upon a nonsuit granted by the court after a trial at the Tompkins Circuit on the 21st day of October, 1895, and alsc from an order entered in said clerk’s office on the 3d day of March. 1896, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, Patrick Sheehan, 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 4th day of April, 1896, upon the report of a referee.</p>

Appeals by the defendants, William H. Siple and others, from interlocutory judgments of the Supreme Court in favor of the plaintiffs, entered in the office of the cleric of the county of Broome on the 27th day of July, 1896, upon the decision of the court rendered after a trial at the Chemung Special Term overruling the defendants’ demurrers to the plaintiffs’ complaint.

Appeal by the defendant, John Bull, from an order of the Supreme Court, made at the Madison Special Term and entered in the office of the clerk of the county of Cortland on the 28tli day of April, 1896, denying the defendant’s motion for a new trial made upon a case and exceptions and affidavits, the jury in the action having rendered a verdict in favor of the plaintiff after a trial at the Cortland Circuit on the 8th day of January, 1894.

Appeal by the defendant, Mary Louise Prindle, 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 Saratoga on the 13th day of October, 1896, directing that certain costs awarded to the defendant, upon an appeal from an order in proceedings by plaintiffs against her for contempt, be set off and applied upon the judgment recovered by the plaintiffs against the defendant, upon which proceedings…

<p>Appeal by the plaintiff, The Sewer Commissioners of Amsterdam, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the cleric of the county of Montgomery on the 14th day of September, 1895, upon the report of a referee.</p>

<p>Appeal by the plaintiffs, Darius A. Moore and another, from a judgment of the Supreme Court in favor of the defendants, William McLoughlin and Emily Lavoy, entered in the office of the clerk of the county of Eranldin on the 5th day of March, 1896, upon the decision of the court rendered after a trial at the Eranldin Circuit before the court without a jury dismissing the plaintiffs’ complaint.</p>

<p>Highway Law — the test of the liability of a town is the negligence of the commissioner of highways—when he has not been negligent — his discretionary right in making repairs — specific requests to charge waive others.</p> <p>The Highway Law (Laws of 1890, chap. 568, § 16) makes the test of the liability of a town, for an accident caused by a defective highway, the negligence of its commissioner of highways and not that of the town.</p> <p>It is within the discretion of commissioners of highways of a town, where they have not sufficient funds in their hands to make all needed repairs, to apply the funds in making such repairs as in their judgment are most urgently needed, and they are not responsible for an error in judgment in doing so. Where, at the time of an accident, resulting from the lack of sufficient barriers at the approach to a bridge, the commissioner of highways has no funds, and has not been negligent in making efforts to obtain further funds, there exists no-basis upon which a liability can be created against the town in the premises. Where a party requests that certain specified questions be submitted to the jury, which requests are properly denied, it will be assumed that he intends to waive the submission of other questions not embraced in such requests, and a refusal to submit the case to the jury is proper.</p>

Appeal by the plaintiffs, Nicholas Manger and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany on the 6th day of March, 1896, upon a nonsuit granted by the court after a trial before the court and a jury at a Trial Term of the Supreme Court held in and for the county of Albany.

<p>Life insurance—forfeiture of a policy — the thirty days' notice to the policyholder , must follow the statute.</p> <p>The provisions of chapter 341 of the Laws of 1876, as amended by chapter 331 of the Laws of 1877, requiring a life insurance company, before it can forfeit a policy or declare it lapsed, to send a thirty days’ notice to the insured, stating, among other things, that unless the payment of premium required by the notice is made at the time stated, “ the said policy and all payments thereon will become forfeited and void,” are not satisfied by a notice which states, “ if your payment should not be made when due, your policy would cease' to be in force.”</p> <p>Unless good reasons for a departure therefrom appear, a strict compliance upon the part of insurance corporations with the words of the statute is necessary to legalize the forfeiture or lapse of a policy.</p>

Motion by the defendants, Silas P. Brown and others, for a new-trial, upon a case and exceptions, under the provisions of section 1000 of the Code of Civil Procedure.

Appeal by the defendant, Thomas J. Kelly, from a judgment of the Ulster County Court, rendered on June 12, 1896, convicting him of the crime of arson in the second degree.

<p>Appeal by the defendant, The Town of Tioga, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Tioga on the 6th day of March, 1896, upon the report of a referee.</p> <p>The commissioners of highways of the towns of Owego and Candor, in the county of Tioga, having constructed an iron bridge over Owego creek on a highway running between the towns, this action was brought by the town of Candor against the town of Tioga to recover its proportionate part of the expense thereof. Owego creek runs in a northerly and southerly direction. The town of Owego lies on the easterly side of the stream, and opposite to it, and adjoining each other, are the towns of Candor and Tioga.</p> <p>One end of the bridge is situate in the town of Owego and tlie other in Candor, neither end being in the town of Tioga or connecting with any highway therein. It is claimed, however, that a corner of the town of Tioga extends under- the middle of the bridge. The referee found “ that one of the piers and a portion of said bridge are situated upon and over land within the boundaries of the town of Tioga, but no highway of said town of Tioga touches or directly connects with said bridge.”</p> <p>It was claimed that the commissioners of highways of the towns of Owego and Candor having erected the bridge over a strip of land within the town of Tioga, the latter town became liable to pay a portion of the expense of erecting it.</p> <p>The referee found “ that a highway has been maintained by the public and used and occupied as such, at, upon and over the Owego creek where the * * * bridge is now located, and leading to the same, at either end of said bridge, since prior to the year 1826.” “ That prior to, and from and since the year 1826, the portion of said highway bridge lying within the limits of the town of Tioga has been one of the highways of the town of Tioga,” thus holding that the middle of the bridge, to which the town of Tioga has no access, and which does not connect with any highway therein, is one of the public highways of said town.</p> <p>This action was brought under the provisions of sections 130,134 and 135 of chapter 568 of the Laws of 1890. Section 130 provides: “ The towns of this State, except as otherwise herein provided, shall he liable to pay the expenses for the construction and repair of its public free bridges, constructed over streams or other waters within their bounds, and their just and equitable share of such expenses when so constructed over streams or other waters upon theil boundaries, except between the counties of Westchester and New York, and when such bridges are constructed over streams or other waters forming the boundary line of towns, either in the same or adjoining counties, such towns shall be jointly liable to pay such expenses.” Sections 134 and 135 provide for the collection by the -town or towns building a bridge, from a town liable but which refuses to aid jn the construction thereof, of its share of the expense.</p> <p>The plaintiff recovered in the court below.</p>

<p>Appeal by the defendants, The Town of Potsdam 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 St. Lawrence on the 23d day of February, 1895, upon the verdict of a jury rendered after a trial at the St. Lawrence Circuit, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 25th day of March, 1895, denying the defendants’ motion for a new trial made upon the minutes.</p> <p>Also, an appeal by the defendant, The Town of Potsdam, from an order entered in said clerk’s office on the 8th day of October, 1894,. overruling the said defendant’s demurrer to the complaint.</p> <p>This action was brought to recover damages for injuries to the plaintiff resulting from the fall of a bridge over Trout brook, a stream on the boundary line between the towns of Madrid and Potsdam in the county of St. Lawrence. The bridge for many years-had been maintained by the two towns at their joint expense.</p> <p>On the 15th day of May, 1893, the plaintiff, in a loaded wagon, drove on to this bridge from the Madrid side, and as he neared the-Potsdam side a portion of the bridge fell, precipitating the wagon and plaintiff into the stream. The bridge was about twelve feet-above the water. In the fall the plaintiff received a severe injury, as to which and the amount of the verdict the defendants raised no question on the motion for a new trial made at the end of the trial. At the time of the fall of the bridge, William Hall was, and.from February, 1889, had been, commissioner of highways of the town of Madrid. One Barnum was commissioner of highways of the town of Potsdam, having been elected at the annual town meeting held in February, 1893. Prior to that, time, Isaiah Shields had been, for some time, commissioner of said town.</p>

<p>Taxation—misdescription of the property — the statutory requirements must be observed.</p> <p>All proceedings prescribed by law for the assessment of land for the purpose of taxation must be substantially, if not strictly, complied with, and whatever the Legislature has specifically directed in such a proceeding cannot be declared by the courts to be immaterial.</p> <p>Where the charter of a city provides that, before any sale shall be made of property for a tax, an order shall be entered “particularly describing the premises to be sold,” a description in such an order which correctly states the boundaries of only two of the four sides of the lot proposed to be sold, and also embraces by its terms another lot, is not a substantial compliance with the statute, and a sale made under it is absolutely void.</p>

Appeal by the defendants, Watkins and Turner Lumber Company and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of St. Lawrence on the 3d day of August, 1896, upon the decision of the court rendered after a trial at the St. Lawrence Special Term on the héaring upon the demurrers interposed hy the several defendants to the plaintiffs’ complaint.

Appeal by Mary E. Callahan, the plaintiff in the first above-entitled action, and by Mary Gilgallon, the plaintiff in the second above-entitled action, from an order of the Supreme Court, made at the Montgomery Special Term and entered in the office of the clerk of the county of Saratoga on the 29th day of September, 1896, directing the plaintiff in each action to furnish a bill of particulars. The complaint is for slander.

Application by the defendants, Thomas B. Valentine and others, for leave to appeal to the Court of Appeals from a judgment of the Appellate Division of the Supreme Court, third department, rendered on the 8th day of December, 1896.

<p>Appeal by the plaintiff, Thomas Donohue, 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 14th day of February, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme Court held in and for the county of Onondaga, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office denying the plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, The Brooklyn 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 Oswego on the 13th day of April, 1896, upon the decision of the court rendered after a trial at a Trial Term of the Supreme Court held in and for the county of Oswego before the court without a jury.

<p>Grand larceny — allegations of a conspiracy —jurisdiction where a crime is committed, in part, in two counties —proof of other fraudulent acts as hearing on intent— technical errors are disregarded upon an appeal.</p> <p>An indictment for grand larceny which alleges in effect that, in the town of Manchester, Ontario county, a conspiracy was formed by the defendant and others to cheat Frances E. Stewart out of her property, and that the defendant and another made false representations to said Frances E. Stewart, by which she 'was induced to deliver up to them, in the city of Rochester, Monroe county, her deed and title to certain property in return for a worthless mortgage, is not. demurrable upon the ground that the crime was not committed in the county of Ontario, and that the County Court of that county had no jurisdiction over it, but is plainly within the provisions of section 134 of the Code of Criminal Procedure, enacting that if the “acts or effects” of a crime “occur in two or more counties the jurisdiction is in either county.”</p> <p>Where a conspiracy has been alleged, proof by the People of other acts of a similarly fraudulent nature practiced by the same parties upon persons other than the complainant, is limited in its effect to the question as to the intent of the defendant in the transaction under consideration.</p> <p>The question of intent is one for the jury upon all the facts.</p> <p>The duty of the Appellate Division, under sections 542 and 684 of the Code of Criminal Procedure, to give judgment after hearing an appeal, without regard to technical errors or defects, or exceptions which do not affect substantial rights of the parties, considered.</p> <p>Where an indictment, in addition to the allegations necessary to establish the offense of grand larceny, contains allegations of conspiracy, it cannot be said to charge separate crimes, when the acts of conspiracy were manifestly initiatory of, and were merged into and consummated by, the crime of larceny.</p> <p>Semhle, that in such a case evidence of the conspiracy, although the conspiracy ■ be not alleged, may be received to establish the crime of grand larceny.</p> <p>A statement made by the defendant in the words, "I consider that a first-class mortgage,” is to be considered by the jury as an expression of opinion only; but such a view of the statement taken by the court does not justify a request, by the defendant for the direction of a verdict of acquittal.</p>

<p>Appeal by James Baldwin, one of the executors, etc., of Sarah Weatherby, deceased, and a residuary legatee named in her will, from so much of a decree of the Surrogate’s Court of the county of Steuben, entered in said Surrogate’s Court on the 26th day of October, 1895, as adjudges him to he indebted to the estate of Sarah Weatherby in the sum of $10,677.48, and from so much of said decree as fails to adjudge that the said estate is indebted to James Baldwin and Henry Baldwin, as surviving partners of the firm of James Baldwin & Co., in the sum of $5,049.89.</p> <p>On the 10th day of December, 1892, Sarah Weatherby made and published her will wherein she appointed Lucius N. Manley and James Baldwin executors. She died on the 11th day of December, 1892, and the will was admitted to probate and letters testamentary were issued to the executors, who qualified. Appraisers were appointed and an inventory taken of her personal estate in the month of March, 1894. The total amount of the inventory was $29,374.77. Citations were issued requiring the executors to account in the Surrogate’s Court in Steuben county. The parties appeared and evidence was produced in .the Surrogate’s Court and the case was finally submitted to the surrogate, who made findings of fact and conclusions of law, upon which a decree was entered, from parts of which James Baldwin appeals.</p> <p>The surrogate’s ninth finding of fact was as follows : “ That said Baldwin made, executed and delivered to the testatrix, Sarah Weatherby, certain promissory notes of face amounts respectfully* $10,500, $3,780, $486.00, $878.88 and $302.40 (here insert copies of such notes in evidence). That same were for money loaned him by testatrix. That divers payments were made thereon, which were indorsed on said notes respectfully* (here insert indorsements made on such notes respectfully*). That for some time prior to, and ever since the dates respectfully* of the last indorsements on said notes, said James Baldwin has been engaged in hanking business at Addison under the name of James Baldwin & Co.’s Bank. That the funds and business of said bank (which was not incorporated) were in fact the funds and business of said James Baldwin. That at divers dates since the dates respectively of the indorsements on said notes, said James Baldwin paid to said testatrix as payments to apply on said notes divers sums by paying directly to her and for her benefit. So much of the several sums set forth as debits to her in exhibit ‘ 5 ’ at the dates therein set forth respectfully* exceeded the items of credit in such exhibits at the dates set forth in such credit items respectfully* (here insert exhibit ‘ 5.’) That on or about March, 1894, at Addison, in an interview with said Manley, executor, as aforesaid, he presented said notes to said Manley, and with them a statement showing the amount due from him to said estate upon the said notes to be the sum of said notes and interest, less the payments aforesaid, interest on all being computed at G per cent., and said debits and all debits in said exhibit being applied as payments by him is such computation. That the amounts due said estate from said Baldwin individually on said notes on the 1st day of June, 1895, after crediting the payments aforesaid, the sums of $10,424.55, and there is also due interest on said $10,424.55 to the date hereof.”</p>

<p>Appeal by the defendant, The Rome, Watertown and Ogdensburg 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 27th day of ¡November, 1895, upon the decision of the court rendered after a trial at the' Onondaga Special Term.</p> <p>Findings of fact and conclusions of law were made by the Special Term, and exceptions were filed thereto. At the close of the evidence a motion was made to dismiss the plaintiff’s complaint on the ground, viz.: “ That it now appears by the proof that the plaintiff does not own any of the land upon which our railroad is, and we are not trespassers ; and it appears that the plaintiff" is not an abutting owner of the premises upon the street where our railroad is.”</p> <p>The motion was denied, and an exception was taken. The action was commenced on the 8tli day of December, 1S88, and past damages were assessed for alleged trespasses found to have accrued between December 8,1882, down to the time of the commencement of the trial in April, 1891, at the sum of $18,568, and an injunction was granted restraining the operation of the defendant’s road unless the defendant pay to the plaintiff the further sum of $25,320, with interest from April 30, 1891, on receipt of a deed from plaintiff of its interest in Harsh street.</p> <p>The action was brought on the equity side of the court to restrain the defendant from using and operating its railroad over lands in the bed of Marsh street which the plaintiff claimed to own, and to recover damages for injury to the plaintiff’s property and business in the past by reason of its use of Marsh street in the city of Syracuse for railroad purposes.</p> <p>In 1868 the Syracuse ¡Northern' Railroad Company was incorporated to construct and operate a railroad from the city of Syracuse to the village of Sandy Creek in the county of Oswego; and in the year 1871 the railroad was constructed through Marsh street from its junction with Laurel street to the northern terminus of the road. ■Some time prior to 1876 the tracks in Marsh street were extended on the west side of Marsh street, before reaching Laurel street, through Franklin street to the ¡New York Central depot, and on the east side of Marsh street through other streets to the tracks of the Chenango Valley Railroad Company. Switches have been laid in Marsh street from time to time in connection with the tracks, and the 'tracks, switches and structures in Marsh street, placed by the ■defendant and its predecessors, were there with the consent of the ■city of Syracuse. At the time this action was commenced, the plaintiff was in possession of a salt yard occupied by vats and covers, and ■a few small lots and houses, abutting on Marsh street for the most part, and containing about thirty-four and forty-six one-hundredths acres. It abutted on Marsh street for a distance of 1,007 feet. The plaintiff claims to own the land to the center of the street opposite that portion of the premises owned by it in fee. The plaintiff, under a lease from the State, went into possession of some fifteen and forty-three one-hundredths acres of land, which were bounded by the west line of Marsh street, and the lease did not include any portion of Marsh street. There was no finding by the court that the plaintiff acquired any interest in the bed of the street by virtue of its lease. After finding that the plaintiff was the owner of the thirty-four acres as aforesaid, the court found, viz.: “ That in front of the premises, so owned by it, it is also the owner, subject to the public easement, of so much of the bed of Marsh street as lies west of the centre line thereof.”</p> <p>And it was found that the plaintiff until the season of 1894 “ occupied and used said premises for the manufacture of coarse salt by solar evaporation.”</p> <p>It was also found: “ 5. That ever since the eighth day of December, 1882, the said defendant has wrongfully trespassed upon the said premises owned by the plaintiff, and has ever since such date continually, and without any right or authority from the plaintiff, occupied and trespassed upon the said premises of the plaintiff, and that the said defendant intends to continue such trespasses.</p> <p>“ 6. That by reason of such trespasses in the past the plaintiff has been injured, its business has been interfered with, the quality of the goods manufactured by it lias been deteriorated, the amount of salt manufactured by it has been lessened, the salt vats constructed upon its premises have been injured and expense has been incurred by it in the prevention of greater and further injury, access to its premises has been obstructed and the selling value thereof diminished.</p> <p>“ 7. That the aggregate of the damages so suffered by the plaintiff from the eighth day of December, 1882, down to the time of the trial of this action, amounts to the sum of eighteen thousand five hundred and sixty-eight dollars ($18,568.00).</p> <p>“ 8. That should the said trespasses of the defendant continue in the future the value of the plaintiff’s property will be depreciated by the sum of twenty-five thousand three hundred and twenty dollars ($25,320).”</p> <p>As matter of law the court found: “ That the plaintiff is entitled to judgment against the defendant for the sum of eighteen thousand five hundred and sixty-eight dollars ($18,568), with interest thereon from the 30th day of April, 1894.”</p> <p>The court also authorized an injunction against the defendant “ from operating its railroad on the land owned by the plaintiff in Marsh street, and commanding it to remove its tracks therefrom within ninety days after the entry and notice of judgment herein, unless, within said period, the said defendant shall pay to the plaintiff the further sum of twenty-five thousand three hundred and twenty dollars ($25,320), with interest thereon from the thirtieth day of April, 1894, in full for the value of so much of the plaintiff’s interest in said street as is necessary to maintain the tracks and structures now existing thereon, and to store, use and operate engines and cars therein, in the same manner as heretofore has been done.</p> <p>“ 3. That in case the defendant shall make such payment, as last above provided, the plaintiff shall thereupon, at the request of the defendant, and at its expense, execute, acknowledge and deliver to the defendant a deed releasing the interest of the plaintiff in said street accordingly.”</p>

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 Erie on the 18th day of May, 1896, upon the verdict of a jury for $3,000 rendered after a trial at a Trial Term of the Supreme Court held in and for the county of Erie, and also from an order entered in said clerk’s office on the 18th day of May, 1896, denying the defendant’s…

<p>Undue influence — what evidence fails to establish it-—issues settled and sent to a jury.</p> <p>A testator by his will, made in 1886, bequeathed a sum of money to a church of which he was a member and liberal supporter; in February, 1895, he executed a codicil in which he bequeathed to the same church §1,000, of which the interest only was to be used by it. This codicil he revoked the following month by a second codicil in which the amount of the bequest to the church was increased to §4,000. It appeared that, prior to the execution of the second codicil, the testator had avowed his intention of making provision for the church to the extent therein contained, and that, subsequently, he had declared that he had made such provision, stating in effect that the church would thereby continue to receive a sum about equivalent to his customary annual subscription. Although advanced in years and somewhat enfeebled in body and mind, the testator was capable of appreciating the extent and condition of Ms property, and the nature of the act in which he was engaged, and, according to the testimony of the attorney who drew the second codicil, and of the witnesses thereto, supported by other circumstances, the testator was possessed of his faculties and acting independently and without restraint.</p> <p>Held, that a decision of the surrogate admitting the will and codicils to probate, but holding that the bequest to the church was due to undue influence and was invalid, was not in the latter particular satisfactorily sustained by the evidence;</p> <p>That to that extent it should be set aside, and that issues should be settled and be tried at a Trial Term before a jury.</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 Onondaga on the 30th day of November, 1895, upon the verdict of a jury for $2,500 rendered after a trial at the Onondaga Circuit, and also from an order entered in said clerk’s office on the 23d day of November, 1895, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Dwight Wilcox, from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the cleric of the county of Oswego on the 19th day of May, 1896, confirming the report of a referee appointed to determine the amount necessary to satisfy the judgment under which the receiver was appointed, and directing the receiver to pay the expenses of such reference, and ten dollars costs, “ out of any moneys in his hands, or which…

Appeal by the defendant, Noel Hawkins, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cattaraugus on the 12th day of September, 1895, upon the verdict of a jury for $1,000 rendered after a trial at the Cattaraugus Circuit, and also from an order bearing date the 2d day of September, 1895, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

<p>An information and a warrant specifically stating the crime, necessary to a prosecution in the Court of Special Sessions — such defects not waived by an appea/rance and failure to object.</p> <p>A party placed upon trial in a Court of Special Sessions, or in a Police Court, should be charged by an information, clear and definite, and the charge should be followed by a warrant specifically stating the crime alleged.</p> <p>Semble, that the fact that the party appears by counsel and does not make objection, to the proceedings taken before the Special Sessions, that no information was filed, no warrant issued or that the charge was indefinite or uncertain, is not a waiver of the defect.</p>

Appeal by the defendant, Earl M. Lanphear, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Steuben on the 17th clay of February, 1896, upon the decision of the court rendered after a trial at the Erie Special Term overruling the said defendant’s demurrer to the complaint, and also from an order entered in said clerk’s office on the 17th day of February, 1896, upon which said judgment was…

<p>fraudulent misrepresentations as to the location of land — remedies of the purchaser— waiver, by payments on the contract, of the right to rescind.</p> <p>Where there has been a fraudulent misrepresentation upon the part of a vendor relative to the location of the lands sold, the vendee may either sue for the damages which have resulted from the fraud, or bring a suit in equity to have the contract rescinded and for other appropriate relief.</p> <p>Semble, that the vendee is entitled to relief in equity, if a mistake has been made, even though the vendor was guilty of no actual fraud.</p> <p>What proof is necessary to establish a waiver, of the right to proceed in equity to rescind the contract, by evidence of payments made thereon, considered.</p> <p>Note.—The rest of the cases of this term will he found in the next volume, 12 App. Div.— [Rep.</p>