Volume 11 — E.H. Smith

<p>1. Constitutional law—Convict-made goods.</p> <p>The principle, embodied in the constitutional guaranty that the citizen cannot be deprived of his property without due process of law, is not limited to the physical taking of property. Any law which annihilates its value, restricts its use, or takes away any of its essential attributes, comes within the purview of this limitation upon legislative power.</p> <p>3. Same.</p> <p>The legislature, under the guise of the police power, cannot regulate the price of labor by depressing, through the penalties of the criminal law, the price of goods made by another class.</p> <p>3. Same.</p> <p>Chapter 931 of 1896 is in conflict with the constitution of this state, since it interferes with the right to acquire, possess, and dispose of property, and with the liberty of the individual to earn a living by dealing in the articles embraced within the scope of the law.</p> <p>4. Same.</p> <p>Section 39, art. 3 of Constitution, 1894, does not forbid the sale of prison-made goods to the general public.</p> <p>5. Same.</p> <p>This section is in conflict with the commerce clause of the federal constitution.</p> <p><$. Same.</p> <p>When such laws operate as burdens or restrictions upon the freedom of trade or commercial intercourse, they are invalid.</p> <p>'7. Same.</p> <p>A citizen of this state who happens to buy goods made in a prison in Ohio has the right to put them upon the market here on their own merits, and if this right is restricted by a penal law, while the same goods made in factories are untouched, such a law is a restriction upon the freedom of commerce, and the objection to it is not removed by the fact that it may have been enacted in the guise of a police regula tion.</p>

Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered July 2L, 1898, affirming a judgment in favor of plaintiff, entered upon a decision of the court at a Trial Term, a jury trial having been waived. This action was brought to recover damages for an alleged trespass by the defendants upon a certain pond claimed to be possessed and controlled by the plaintiff.

Appeal, by permission, from an order of the Appellate .Division of the Supreme Court in the fourth judicial depart'ment, entered January 6, 1898, affirming an order of Special Term vacating a temporary injunction. The nature of the proceeding, the questions certified and the facts, so far as material, are stated in the opinion.

The facts, so far as material, are stated in the opinion.- Before the enactment of the Tax Law of 1896, the property of a municipal corporation devoted to the public use was exempt from taxation. (City of Rochester v. Town of Rush, 80 N. Y. 302; People ex rel. v. Bd. Assessors, 111 N. Y. 505; 1 R. S. 387, §§ 1, 4.) By the Tax Law, all exemptions theretofore existing under the laws of the state were continued.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered May 14, 1898, modifying a decree of the Surrogate’s Court of Orange county fixing a transfer tax upon the estate of S. Maretta Thrall, deceased.</p> <p>By her will the decedent left a legacy to the city of Middle-town, which the decree exempted from the tax. The decree also exempted the sum of $3,500 allowed to the executors for the probable expenses of an action brought by them individually and in their representative capacity for a construction of the will. The Appellate Division reversed the decree in both of these particulars.</p> <p>Further facts are stated in the opinion.</p> <p>The legacy to the city was exempt from taxation. (L. 1896, ch. 908, § 4; Matter of Vassar, 127 N. Y. 1; Inhab. of Town of Essex v. Brooks, 41 N. E. Rep. 119.) As it relates to the facts in this case, this act should be construed liberally in favor of the city. (Matter of Enston, 113 N. Y. 174; Matter of McPherson, 104 N. Y. 306-317; Matter of Vassar, 127 N. Y. 1.)</p> <p>The $3,500, allowed by the surrogate as a part of the testamentary expenses of the decedent’s estate, was properly allowed. (Matter of Westurn, 152 N. Y. 93; Matter of Gould, 19 App. Div. 352.) The legacy to the city of Middletown was properly exempted from the tax. (L. 1896, ch. 908, § 4; 2 Cooley on Taxn. 172, 202; Drury v. Natick, 10 Allen, 169; Inhab. of Town of Essex v. Brooks, 41 N. E. Rep. 119; 1 R. S. tit. 1, ch. 13, § 4, suhd. 5; L. 1897, ch. 284; Matter of Enstion, 113 N. Y. 174; City of Rochester v. Town of Rush, 80 N. Y. 302; People ex rel. v. Bd. Assessors, 111 N. Y. 505; 1 R. S. 387; Matter of Whiting, 150 N. Y. 27; Matter of Sherman, 153 N. Y. 1; Darlington v. Mayor, etc., 31 N. Y. 164; Leonard v. City of Brooklyn, 71 N. Y. 498; Matter of Vassar, 127 N. Y. 1.)</p> <p>In deducting from the amount liable for taxation the sum of $3,500, the estimated expenses of the action brought to construe the will, the surrogate erred. (Matter of Verplanck, 91 N. Y. 439, 450; Riggs v. Cragg, 89 N. Y. 479; Purdy v. Hayt, 92 N. Y. 446; Hart v. Ashley, 117 N. Y. 606; Matter of Van, Nostrand, 3 Misc. Rep. 396; Matter of Quinn, 16 Misc. Rep. 651; Matter of Westurn, 152 N. Y. 93; Lines Estate, 155 Penn. St. 378; Redf. on Surr. 454; Matter of Bailey, 47 Hun, 477; Shields v. Sullivan, 3 Dem. 296.) The legacy to the city of Middletown is subject to a tax. (Matter of Cullum, 145 N. Y. 593; Matter of Swift, 137 N. Y. 77; Matter of Merriam, 141 N. Y. 479; Matter of Hamilton, 148 N. Y. 310; L. 1897, ch. 908, § 220; L. 1887, ch. ' 713, § 1.) The Tax Law of 1896 does not aid the appellants. (Buffalo City Cemetery v. City of Buffalo, 46 17. Y. 506 ; Roosevelt Hospital v. Mayor, etc., 84 17. Y. 115 ; People ex rel. v. Comrs., 76 17. Y. 64; City of Rochester v. Town of Rush, 80 17. Y. 302; People ex rel. v. Assessors, 111 17. Y. 505; of Rochester v. Coe, 25 App. Div. 300.)</p>

<p>Appeal—Order Reversing- Vacation oe Final Order. An order of the Appellate Division, reversing' an order of the Special Term vacating a final order and judgment in a condemnation proceeding, is not a final order in the special proceeding, within the meaning of-the Constitution and section 190 of the Code of Civil Procedure, and, therefore, is not appealable as of right to the Court of Appeals.</p>

<p>Tax—Savings Banks—Exemption of Surplus. The surplus fund of a savings "bank of this state is exempt from taxation, "by force of the provision of the Tax Law (L. 1896, ch. 908) exempting “ the deposits in any bank for savings which are due depositors,” together with the abrogation of statutory provision for taxing savings bank franchises.</p>

The facts, so far as material, are stated in the opinion. The order appealed from is a final order in a special proceeding, and as it finally determines and upholds the special proceeding, it is re viewable by the Court of Appeals. (Code Civ. Pro. § 190; People ex rel. v. Campbell, 152 N. Y. 55; Peri v. N. Y. C. & H. R. R. R. Co., 152 N. Y. 526; Matter of City of Utica, 73 Hun, 256; Matter of Broadway & S. A. R. R. Co., 69 Hun, 275.) Tierney for respondent.

<p>1. Corporation Franchise Tax — Statute of Limitations. The six years Statute of Limitations (Code Civ. Pro. § 382) runs against an action for the collection of a corporation franchise tax under the Corporation Tax Law (L. 1880, ch. 542, as amended), from the accruing of the liability for the annual tax, on the fifteenth day of January in each year, notwithstanding the additional remedy of collection by warrant afforded by the amendment of 1885 (Ch. 501); and the two years statute (Code, § 384) applies to an action for penalties for non-payment of the tax.</p> <p>2. Revision op Comptroller’s Account — Taxes Uncollectible by Reason op Statute op Limitations. When, on an application to the comptroller to revise an account stated by him for franchise taxes under the act of 1880 (Ch. 543) as amended, it is made to appear that the account includes taxes, the liability for which accrued more than six years before the assessment, and penalties, the liability for which accrued more than two years before the assessment, which taxes and penalties would therefore, by operation of the Statute of Limitations, be unenforceable by action, he must resettle the account by striking off such uncollectible taxes and penalties.</p>

The relator was appointed, in 1896, superintendent of the city hospital by the commissioners of public charities of the former city of New York.

<p>1. Revivor of Action — Laches. Laches, on the part of the plaintiff, is an answer to a motion for a revivor in an action for damages brought against a defendant by reason of alleged negligence.</p> <p>2. Appeal — Opinion as Part of Record. When an order certifying a question for review expressly refers to the opinion of the Appellate Division, the opinion becomes a part of the record and can be resorted to by the Court of Appeals for the purpose of ascertaining the ground of the decision appealed from.</p> <p>3. Remittance of Case for Further Consideration. When, on appeal from an order of the Appellate Division reversing an order denying a motion for reviver, and granting the motion, the record shows that the action of the Appellate Division was based on the erroneous proposition that loches is no answer to such a motion, without consideration of the question of fact as to the existence of loches, raised by conflicting affidavits, the Court of Appeals, on reversing the order of the Appellate Division, will remit the case to that court for further consideration.</p>

or the payment of $5,000 as fee damage, and ordering a new trial. The nature of the action and the facts, so far as material, are stated in the opinion. The propriety of the reversal upon the facts is open for review here; and the reversal will not be sustained unless it appears upon the testimony that the Special Term findings are against the weight of evidence.

The facts, so far as material, are stated in the opinion. The orders are erroneous. The disbursements necessarily incurred by the sheriff in discharging duties specified in section 2, chapter 108, Laws 1891, and imposed upon the sheriff by law, should he allowed.

Oboss-appeals from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 8, 1898, which modified an order of the Special Term that reduced the assessment of the relator for the year 1897. The defendants appeal from so much of the order as modified the order of the Special Term by refixing and limiting the amount of the assessment to the sum of $240,872.20.

Bailer Decker was convicted of murder in the first degree, and he appeals. Affirmed. The défendant was a colored man, and the decedent was a white woman. They were husband and wife, and lived together as such in the upper story of a house on Beach street, in Tottenville, in the county of Bichmond, 1ST. Y. The lower part of the house was occupied by two colored families, living on different sides of the hallway.

<p>1. Evidence — Written Contract — Parol Proof — Parties. The rule of evidence which makes a written contract conclusive proof of what the parties have agreed to, and which rejects paroi proof to vary or contradict the writing, or its legal import, applies only in controversies between the parties to the instrument.</p> <p>2. Action for Commissions for Obtaining Purchaser for Real Estate — Evidence. In an action for commissions for obtaining a purchaser for real estate, an agreement signed by the defendant and third parties, stating that the third parties “agree to purchase the within described property at the within mentioned terms and price, with the only exception that said price is changed to ” a certain suin, and indorsed upon a letter theretofore written by the defendant to the plaintiff and one of the third parties, giving the plaintiff and such third party an option upon the property, is not conclusive proof, to the exclusion of oral evidence on the subject, that the plaintiff had procured parties willing to purchase on the defendant’s terms, although they had finally refused to accept his. terms or perform.</p> <p>3. Evidence of Acts Inconsistent with Binding Contract of Sale. In such case, evidence of acts and declarations of the plaintiff, at or subsequent to the execution of the indorsed agreement between the defendant and the third parties, inconsistent with the claim that the indorsement represented a complete or binding contract of sale, is admissible on behalf of the defendant.</p>

<p>1. Contract rob Sale or Land —Search Furnished by Vendor — Unwarranted Rejection or Title. When, in a land contract providing for the delivery of a deed conveying “ a good and satisfactory title” on a certain day, and making time of the essence, it is apparent that a provision that the vendor shall furnish a search “ truly showing the condition of the title ” was intended to require only a search by reference to which an ordinarily prudent person would have ascertained the true state of the title, and such a search is furnished before the day for performance, which presents an apparent discrepancy of description, but it is accepted by the purchaser without objection, and on the day for performance the vendor actually has title and tenders a deed, and it appears that the apparent defect arose from an error of statement in a partition suit which had been amended in the judgment roll, although not on the county clerk’s record, and that the purchaser had by his own negligence failed to discover the correction, he is not entitled to reject the title and recover the portion of the purchase money paid and his disbursements for examining the title, on the grounds that the vendor’s title was not satisfactory and that the insufficiency of the search furnished was a breach of the contract.</p> <p>. 2. Purchaser Presumed to Investigate Title. An intending purchaser of real estate must be presumed to investigate the title, to examine every deed or instrument forming a part of it, especially if recorded, and to have known every fact disclosed or to which an inquiry suggested by the record would have led.</p> <p>3. Satisfactory Title. A good title must be regarded as a satisfactory one.</p> <p>4. Amendable Defect in Record Title. Where a proffered title is actually good, and a defect in the record thereof can be supplied by reference to a corrected judgment roll on file, without resort to paroi evidence or the intervention of any question of fact, and the vendor has not declined to procure the correction, the mere objection that the actual judgment was not correctly recorded does not justify the purchaser’s rejection of the title.</p> <p>5. Trivial Objection to Title. The objection, by the purchaser, to performance of a land contract, that the vendor had no record title to a trifling portion, such as sixteen one-hundredths of a foot on one side of a parcel as delineated on the search furnished by him, does not justify a judgment rescinding the contract, where it appears that the objection was of little consequence, that the property had been in the actual possession of the owner having the record title for more than twenty years, that the defect was one which the vendor was able to correct, and that he did so.</p>

Rollins, referee, and granting a new trial. This was an action in equity; the relief demanded by the complaint was “ that the plaintiff and defendant may he adjudged equal copartners in the ownership, production and management of the play ‘ Little Lord Fauntleroy/ and to be entitled to the profits arising from the production and management thereof equally, share and share alike,” and that the defendant be required to account for such profits.

This action was brought by the plaintiff to procure an absolute divorce. The facts, so far as material, are stated in the opinion.

new trial. This action was to recover for personal injuries alleged to-have been caused by the defendant’s negligence.

This action was brought to recover damages for personal injuries alleged to have been caused by the negligence of defendant as the plaintiff’s employer. The facts, so far as material, are stated in the opinion. The complaint should have been dismissed at the close of plaintiff’s case. (McDugan v. N. Y. C. & H. R. R. R. Co., 10 Misc. Rep. 337; Williams v. D., L. & W. R. R. Co., 116 N. Y. 628; Wright v. N. Y. C. R. R. Co.. 25 N. Y. 562; Gibson v. E. Ry.

This action was brought to compel the defendant to execute and deliver to the plaintiff a deed of conveyance of four lots of land, with houses thereon, in the city of Brooklyn, alleged to have been purchased by the defendant as the agent of the plaintiff. The facts, so far as material, are stated in the opinion.

<p>1. Appeal — Conclusiveness of Finding. When a finding of a referee upon a question of fact, made upon conflicting testimony, has been affirmed by the General Term, it is final and conclusive upon the parties and precludes any review of that issue by the Court of Appeals.</p> <p>2. Rescission of Contract — Reservation. Where a contract is rescinded while in the course of performance, any claim in respect of performance, or of what has "been paid or received thereon, will ordinarily he referred to the agreement of rescission and in general no such claim can be made unless expressly or impliedly reserved upon the rescission.</p> <p>3. Rescission of Contract for Sales on Commission—Absence of Reservation of Commissions on Filling Unexecuted Orders. An agreement rescinding a contract, under which the defendants had been sales agents of the plaintiff with the right to have and retain commissions out of their receipts from sales, contained a provision that all orders up to its date unexecuted should he filled through the defendants “as sales agents as before,” but contained no express statement as to commissions. Held, that this provision, read in the light of the whole instrument of rescission and of the circumstances surrounding its execution, did not imply a reservation of commissions.</p> <p>4. Account Stated—Essential Elements. To constitute an account stated, the debtor and creditor must mutually agree as to the allowance or disallowance'-of their respective claims and as to the balance struck upon the final adjustment of the accounts and demands on both sides. There must be .proof in some form of an express or implied assent to the account rendered by one party to the other before the latter can be held so far concluded that he can impeach it only for fraud or mistake.</p> <p>5. Accord and Satisfaction — Limitations upon Effect of Retention of Check. Ordinarily, the retention of a cheek inclosed in a letter which refers to the amount as the balance due on accounts between the parties will not be held to he an accord and satisfaction so as to bar an action for the balance duo. It is only where a dispute has arisen between the parties as to the amount due, and a check is tendered on one side in full satisfaction of the matter in controversy, that the other party will be deemed to have acquiesced in the amount offered by an acceptance and retention of the check.</p> <p>6. Acts not Constituting Accord and Satisfaction. The defendants, while engaged in collecting money for the plaintiff under a rescission agreement which did not reserve commissions, as continued agents for filling orders unexecuted up to the date of the agreement, deducted commissions from the sums received and, from time to time, remitted checks for the balance only.. The plaintiff retained the remittances and credited them to the defendants, hut objected early to the retention of commissions, and continued such objections through several months, to nearly every account rendered in which commissions were charged. Held, that these acts did not establish an accord and satisfaction barring an action to recover the sums retained as commissions.</p>

On the 16th of August, 1893, one Jesse Peed commenced an action in the Supreme Court against the defendant Herman Petrie to recover the sum of $600, for work performed by said Peed as a farm laborer upon the farm of said Petrie.

This action was brought to recover damages for personal in juries alleged to have beeii caused by the negligence of the defendant. The facts, so far as material, are stated in the opinion.

The nature of the action and the facts, so far as material, are stated in the opinion. The assignment of JDickison & Allen, dated February 14,1891, as to the owner and contractors, effectually transferred to the bank the last payment of twenty per cent under the contract subject to the completion of the contract by the contractors or by the owner as provided in the contract itself.

<p>Appeal from a judgment, convicting the defendant of murder in the first degree, and from an order denying a motion for a new trial.</p>

This action was brought upon a policy of fire insurance issued by the defendant. The facts, so far as material, are stated in the opinion. The policy, upon the making of the indorsement of December 27,1892, recognizing George E. Nichols as owner of the policy and the property mentioned as insured thereunder, became void by reason 'of the condition of the policy prohibiting other insurance without consent of the company. (Short v. H. Ins.

The relator showed by her petition that she was the widow of Jeptha A. Jones, who died at the city of Brooklyn on January 1, 1891. Jones was a veteran of the late war, and was granted by the Federal government a pension on account of wounds received during service. In 1881 Jones purchased certain real estate in the city of Brooklyn, on account of the payment for which he applied the sum of $3,600 which he had received as pension money.

<p>1. Tenants in Common — Compensation por Management op Estate — Acquiescence. Mere silence on the part of certain tenants in common as to the management of the real estate hy their co-tenants, being also executors without power over the realty except to sell it, for some six years from the probate of the will of their common testatrix, where the executors, who were lessees of most of the property, were business men, while the other tenants in common were their sisters and were not shown to have known all the material facts, and nearly all the land was being subjected to condemnation proceedings, does not constitute, as matter of law, an acquiescence entitling the executors to an allowance of compensation for services in collecting rents and managing the real estate, when sued by their co-tenants for an accounting.</p> <p>2. Liability por Interest upon Receipts prom Estate. Where, in an action between tenants in common for an accounting as to the management of the estate hy the defendants, it appears that the defendants have mingled their collections of rent with their own funds, have used them in their own business and have failed to render any account, they are liable for interest on the annual balances of collections over disbursements, to the date of the referee’s report, but not for compound interest.</p>

Mary A. Secor died June 14th, 1894, seized and possessed of valuable real estate in the city of Hew York, the residuum of which by her will she divided into seven parts, and devised six thereof to her executors in trust, to hold one for each of her children. She provided that the trust should continue during the lives of her daughter Adelle and her son Bienzi, and directed the trustees to rent all of said real estate during the continuance of the trust.

<p>1. Appeal—Order Dismissing Certiorari. An order of the Appel-, late Division simply dismissing a common-law writ of certiorari, without affirming the proceedings or in any way passing upon the questions sought to be reviewed, being a discretionary order is not reviewable by the Court of Appeals. y</p> <p>2. Opinion of Court Below. The discretionary character of an order dismissing a writ of certiorari cannot be altered by recourse to the opinion of the court below.</p>

This action was brought upon a draft in the usual form for $950, dated May 10, 1892, payable two months after date, drawn by the plaintiff and accepted by the. defendant.

The nature of the action and the facts, so far as material, are stated in the opinion. The property in question is fully identified as to its extent, use and occupation in connection with, and appurtenant to, the upland, by the plaintiff’s ancestors, by the testimony of witnesses produced by the plaintiff. (Abeel v. Van Gelder, 36 N. Y. 513; Enders v. Sternbergh, 2 Abb. Ct. App.

The nature of the action and the facts, so far as material,, are stated in the opinion. The partnership contract did not authorize the payment of the taxes as a debt or expense of the firm. (Williamson v. Seely, 22 App.

This action was brought to restrain the defendant from constructing, operating or maintaining any street surface railroad on Bergen street, between Rosti-and and Rogers avenues in the city of Brooklyn. The facts, so far as material, are stated in the opinions. The constitutional amendment of 1874 made the consent of abutting owners an immediate and indispensable prerequisite to the use by one street railroad of the tracks of another.

The facts, so far as material, are stated in the opinion. In his position as an assessor of the old city the relator was protected by the Yeteran Law, and could not have been removed except for cause. Held: as assessor of the old city, is like the position of assessor created in the Greater New York charter, within the meaning of section 127 of that charter.

The facts, so far as material, are stated in the opinion. The purchaser should be held to the single objection upon which he based his refusal to comply with his agreement. (Winne v. Reynolds, 6 Paige, 407; Benson v. Crowell, 6 Abb. Pr. 83; Higgins v. Eagleton, 155 N. Y. 466; Wyckoff v. Meyers, 44 N. Y. 143; Tilden v. O. B. Co., 27 App. Div. 510.) The original objection made, viz., that the word “ westerly,” relating to the wall, was erroneous, is frivolous.

The nature of the proceeding and the facts, so far as material, are stated in the opinion. The doctrine of res adjudicada, does not apply to this case. (People ex rel. v. Carter, 119 N. Y. 557; People v. Fowler, 55 N. Y. 254.) The proportionate assessable value of the property of relators was determined in the cases of 1886 and 1887, and the subject became res adjudícala between relators and the assessors of the town of Haverstraw, and all interests they represented.

The facts, so far as material, are stated in the opinion. The relator is not within the terms of the law, even in a proper case, to entitle him to a mandamus. Ho demand, in person or by duly-served communication, has ever been made by the relator upon the district attorney, nor has the latter been informed by proper proof that the relator isl a veteran.

The nature of the action and the facts, so far as material, are stated in the opinion. The defendant bankers had an absolute title on December 14, 1892, to the goods previously delivered by them to Lipman & Co. under trust receipts, for they had advanced their money for the financing of the importations under an agreement for a lien.

The facts, so far as material, are stated in the opinion. The method of apportionment prescribed in section 1065 has no application whatever to so much of the general school fund allowed for 1898 as remained unexpended on the 1st day of July, 1898. (L. 1897, ch. 378, §§ 10, 11.) The board of* estimate and apportionment have complete and exclusive jurisdiction over the expenditures of all the moneys raised ■ for the various parts of the city of ¡New York for the year 1898.

On March 18, 1898, the defendant was indicted for the crime of murder in the first degree.

<p>1. Partnership—Farmers’ Co-operative Store—Advance of Money as Contribution to Capital — Evidence of Contract. When a resolution of the directors of an unincorporated business association, in the form of a joint stock company but in fact a partnership, conducting a farmers’ co-operative store, and a certificate of stock issued on the advance of money to the association by a member, constituting the contract under which the money was advanced, clearly import as matter of law that the money was advanced as a contribution to capital and not as a loan, such written evidence of the transaction cannot be varied or contradicted by paroi proof, in an action for a dissolution of the association and for an accounting.</p> <p>2. Immaterial Evidence. When the only material question in connection with such advance of money is whether it was advanced as a loan or as an accession to capital, testimony as to what was said at the directors’ meeting in regard to what should be done with the money by the company is immaterial.</p> <p>3. Immaterial Evidence. When it appears on the face of such resolution that the money advanced was paid in on different terms than those under which the other members putin their money, an offer to show that fact is immaterial.</p> <p>4. Unlawful Acquisition of Assets by Manager of Association. The managing member of an association constituting a partnership conducting a mercantile business occupies a trust position towards the other members, as well as to creditors, and cannot, by what is in substance and legal effect a transfer by him to himself, through nominal intermediaries, become possessed of the entire assets of the concern.</p> <p>5. Accounting — Allowance for Liens Paid. On an accounting by the managing member of a partnership for assets unlawfully transferred by him ta himself, there should be deducted from the value of the goods for which he is accountable the amount of the liens of creditors paid by him, big claim as creditor being correspondingly diminished.</p>

30, endered against the defendant on the report of a referee. The nature of the action and the facts, so far as material, are stated in the opinion. The change in the written contract between the principal parties prevented the ■ guaranty from taking effect. (De Colyar on.

Appeal, by permission, from an order of the General Term of the late Court of Common Pleas for the city and county of • Mew York, entered May 10, 1895, reversing a judgment of a District Court of the city of Mew York in favor of plaintiff, and granting a new trial. The nature of the action and the facts, so far as material,, are stated in the opinion. The transaction between, the parties was a partnership transaction and not a loan. (17 Am. & Eng.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered September 10, 1898, affirming an order of the Surrogate’s Court of Ontario county adjudging that a trust fund created under the will of Henry B. Gibson, deceased, is not liable to a transfer tax.</p>

Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 17, 1898, reversing' an order of Special Term issuing a subpoena.duces tecum commanding the respondent to appear before a commissioner named in a commission issued out of the District Court of Arapahoe county, state of Colorado, and to produce certain documents mentioned in the subpoena.