Volume 11 — New York Supplement

Action by Ernst Bushman against Sarah C. Brown. The complaint alleged two causes of action,—one for conversion of goods contained in the Cliff Cottage Hotel on Staten island, N. Y., and the other for taking possession of plaintiff's property, and putting it out of doors in the rain. There was a verdict for plaintiff for $550. From the judgment thereon defendant appeals.

Action by Mary B. Horton against Joseph Y. Jordan. The complaint alleged that plaintiff was the owner of certain premises, upon which was a certain pond of water known as “Horton’s Pond,” and that defendant wrongfully entered upon plaintiff’s premises, and removed from said pond large quantities of ice, and converted the same to his own use, to plaintiff’s damage $150. The answer was a general denial. There was a verdict for plaintiff.

Action by Selden S. Gordon against Frank A. Fox for specific performance of a contract by which defendant agreed to assign to plaintiff an interest in certain patents, in consideration of two dollars paid to said Fox by said Gordon. Plaintiff procured an order of arrest on an affidavit that defendant was about to leave'the state, and that the patents were worth $250,000. Defendant now moves to vacate the order of arrest.

Action by Bicot J. Dovale against Bernard L. Ackerman, Sr., and Bernard L. Ackerman, Jr. Plaintiff asked leave to amend his complaint, which was allowed on condition that plaintiff pay the costs accrued from the commencement of the action to the time the amendment was made. At the trial plaintiff obtained a judgment, and in taxing his costs the clerk disallowed the amount paid to defendant under the condition imposed, and plaintiff moves for a retaxation.

At chambers. Two actions by Charles Gilpin, Jr., as assignee of the Glamorgan Iron Company,—one against John Daly and others, and the other against Appleby and others, proprietors of gambling-houses in the city of Hew York,—to recover money of plaintiff’s assignor which had been lost by one Charles B. Wigton, its treasurer, at defendants’ houses.

<p>Action by Theodore Haebler against Elizah Meyers and J. Harbv Moses. Defendants demur on the ground that the complaint does not state facts sufficient to constitute a cause of action. For former litigation, see 4 N. Y. Supp. 873; 9 N. Y. Supp. 725; 22 N. E. Rep. 167.</p>

Action by the Oregon Pacific Railroad Company against George J. Forrest and others, executors under the will of Cornelius K. Garrison, deceased. From a judgment dismissing the complaint, plaintiff appeals.

Action by Michael F. Cusack against Oliver B. Tweedy, individually, and as executor of the will of Joseph Y. Lord, deceased, to recover money paid by plaintiff under a contract for the sale to him by defendant of certain real estate. From a judgment dismissing the complaint and decreeing specific performance of the contract the plaintiff appeals.

Action by J. Wallace MacWhinnie against William T. Cameron. A judgment against defendant was duly entered and docketed in New York county on February 20, 1880, and in Queens county on the 21st February, 1880. Executions were thereupon duly issued by plaintiff to the sheriffs of Queens and New York counties on the 24th day of February and the 17th day of April, 1880, respectively, and both executions were thereafter duly returned unsatisfied.

On reargument. Por former report, see 8 H, Y. Supp. 688. Action by Charles P. Bussell and Samuel Bussell against Samuel W. Allerton to recover damages for breach of a contract of shipment. Prom a judgment, entered on a verdict for plaintiffs, and an order denying a motion for a new trial, defendant appealed. The judgment was reversed, and a new trial ordered. 8 H. Y. Supp. 688. Afterwards a motion for a reargument was granted. 9 H. Y. Supp. 941.

Action by Joseph Kahle against Herman L. Muller and Carle Knille. Defendants appeal from an order denying their motion to vacate an attachment against their property in favor of plaintiff.

<p>Appeal from special term, New York county.</p> <p>Action by Frank G. Hollins and others against the St. Louis & Chicago Railway Company. Plaintiffs appeal from an order denying their motion to compel the attorney appearing for defendant to disclose his authority.</p>

Action by the Hero Fruit-Jar Company against Hugh J. Grant, sheriff of the city and county of Hew York. Defendant applied for an order substituting his indemnitors as defendants in his place, and from an order granting the motion plaintiff appeals. Code Civil Proc.

Action by James E. Taylor against Andrew K. Smith and others, on a promissory note. Defendants appeal from an order denying their motion to change the place of trial. For former litigation, see 8 N. Y. Supp, 519. Code Civil Proc.

Appeal by Hannah McGowan, executrix of the will of John F. Wallace, deceased, from a decree overruling the report of a referee as to the time when interest began to run on a legacy. For former report, see 5 N. Y. Supp. 31.

<p>Appeal from special term, Kings county.</p> <p>• Action by Robert Porterfield against William Payne. There was judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Diego La Scala against Leroy M. Lyon. Plaintiff appeals from an order denying his motion for a bill of particulars.</p>

Action by the Salt Springs National Bank of Syracuse against George B. Sloan. In the fall of 1886, the firm of Austin & Co., who were doing business in the city of Oswego, drew several drafts on Baker & Clark, then doing business in the city of New York, which drafts were accepted, and thereafter discounted by the plaintiff.

<p>Taxation—Assessment—Review—Certiorari.</p> <p>Certiorari will not lie under Laws N. T. 1880, c. 869, to review an assessment • alleged to be erroneous by reason of overvaluation where the party aggrieved has failed to apply to the assessors for relief while the assessment roll is still under their control, by appearing before the board on grievance day, and objecting to ttie assessment as prescribed by Laws N. Y. 1857, c. 536. Learned, P. J., dissenting.</p>

<p>Judgment—Entry by Clerk.</p> <p>Where an action is predicated on certain acts of defendant, alleged to have been done with fraudulent intent, judgment by default cannot be entered by the clerk without the intervention of the court, as provided by Code Civil Proc. N. Y. §§ 420, 1312, in certain cases, since section 549, subd. 4, provides that, where there is an. allegation of fraud, plaintiff cannot recover unless he proves the fraud at the trial.</p>

<p>Writs—Service of Processt-Non-Resident Witness.</p> <p>Defendant, a resident of Massachusetts, came to New York for the purpose of testifying before a committee of the legislature. When he arrived he learned that the committee would not sit until four days later, and he remained until the meeting of the committee, and testified before it! As he was leaving the committee room process in an action brought in New York was served ón him. Held, that the service should be set aside.</p>

Kate S. Engs, the widow of George Engs, deceased, filed the following petition to reopen certain accounts: “The petition of KateS.

Action by John E. Halsted against Manhattan Railway Company to recover damages for injury to plaintiff’s property by reason of the construction and maintenance of defendant’s elevated railway. There was a verdict for plaintiff, and from the judgment entered thereon, defendant appeals.

Action by Robert AY. Forbes against Frederick Haas. From a judgment for plaintiff, and from an order denying his motion for a new trial, defendant appeals.

Action by Francis La hey against Gouverneur ICortright and others, brought to relieve plaintiff from the obligation of a contract to purchase land from defendants. There was judgment for defendants, and plaintiff appeals therefrom, and also from an order giving defendants an extra allowance. For former reports, see 2 IST. Y. Supp. 230, 4 IT. Y. Supp. 626. Code Civil Proc.

Action by Theodore C. Weeks against- the Silver Islet Consolidated Mining- & Land Company and others. Defendants recovered judgment, and appeal from an order denying their motion for an extra allowance.

erm. Action by Edward Avery against the New York Mutual Insurance Company. There was a verdict for plaintiff, and from the judgment entered thereon defendant appeals.

Action by Margaret J. O’Hara against Samuel W. Ehrich and others to recover damages for the death of her intestate. Defendants appeal from an order denying their motion for a bill of particulars.

Action by Eli Hyman against Boston Chair Manufacturing Company, brought to recover damages for the breach of a covenant for quiet and peaceful enjoyment under a lease. On or about the 6th day of August, 1888» plaintiff entered the premises mentioned in the complaint, under a verbal lease with the defendant, which lease was to expire on the 1st day of May, 1889. The plaintiff remained in occupation of the premises until about the 9th day of November, 1888.

Application by William A. Weber, as surety, and Herman Weber, as principal, for an order vacating the judgment entered upon a forfeited recognizance.

Action by Mang.us Ash against James E. Purnell and others. On trial in the district court there was judgment dismissing the complaint, and plaintiff appeals.

Appeal fróm trial term. Action by Margaret Riordan against the Ocean Steam-Ship Company. There was a verdict for plaintiff. From the judgment entered thereon defendant appeals.

Action by Albert L. Woarms and Louis J. Lesser individually and Albert L. Woarms and others as executors of David S. Hess to recover for-,work and labor performed for the defendant by the firm of D. S. Hess & Co. The complaint, after setting forth the doing of the said work, alleges that by virtue of the articles of copartnership of the firm it was mutually agreed that in the event of the demise of D. S. Hess, one of the members, before the expiration of the stipulated term…

. Exceptions from trial term. Action by Robert F. Deeley and Thomas F. Deeley against John Dwight and others to recover dam ages for the conversion of certain machinery which plaintiffs claimed by virtue of a chattel mortgage executed to them by one Gandolfo in February, 1884.

<p>Appeai>-Rbhearing—When Denied.</p> <p>. A reargument of an appeal will be denied where a careful examination of the record and an inspection of the original opinion fail to show any misconception concerning the questions presented.</p>

<p>Appeal—Rehearing.</p> <p>Where, on appeal, judgment has been reversed because of the erroneous exclu sion of evidence, a rehearing will he granted upon a showing by respondent that similar evidence to that excluded was admitted upon the trial without objection, and that the excluded evidence was merely cumulative.</p>

On rehearing. Appeal from equity term. Action by Diedrich Werfelman and George B. Werfelman against the Manhattan Bailway Company and the New York Elevated Bailroad Company. Judgment was given for plaintiffs, and defendants appeal.

On rehearing. Appeal from equity term. Action by Benjamin S. Johnston against the Manhattan Railway Company and the New York Elevated Railroad Company. Judgment was given for plaintiff, and defendants appeal.

Action by James C. French and others against John George Bauer and others. There was a verdict for defendants, and from the j udgment entered thereon plaintiffs appeal.

Action by Max Better against the Prudential Insurance Company. Brom a judgment for plaintiff defendant appeals. Code Civil Proc. N. Y. § 414, provides that “ the provisions of this chapter apply, and constitute the only rules of limitation applicable to a civil action or special proceeding, except in one of the following cases: (1) A case where a different limitation is specially prescribed by law, or a shorter limitation is prescribed by the written contract of the parties.”

Action by Arthur E. Preyer against George B. Bidwell to recover damages for the alleged wrongful discharge of plaintiff!. The complaint alleged a yearly hiring.

Action by John T. Willetts and others against Orimel C. Hatch. Defendant appeals from a judgment entered in favor of plaintiffs upon the verdict of a jury.

<p>Action by the Springville Manufacturing Company against Lowell Lincoln, as substituted trustee of John F. Plummer & Co.</p>

<p>¡Factors and Brokers—Commissions.</p> <p>Goods were consigned under an agreement that the factor was to receive his commissions on sales within a certain time after receipt of bills for the same. The factor on his-part agreed to keep all entries as to such sales in separate books, to collect and remit the accounts upon the respective dates of maturity by check, the remittances to be made daily, if collections reached $1,000, and payments made before maturity to be remitted, less discount, for anticipation of payment. Held, that the factor was entitled to commissions only upon the amounts actually remitted. *</p> <p>Case submitted on agreed statement.</p>

Action by John Quill, as administrator, etc., against the New York Central & Hudson River Railroad Company. There was a verdict for plaintiff. From the judgment entered thereon, defendant appeals.

Exceptions from trial term. Action by Frances E. Demarest, an infant, etc., against James A. Flack, Hugii J. Grant, Alfred de Cordova, Frank Hardy, and Gabriel Case, composing the America’s Winter Carnival Company. The complaint was dismissed, and plaintiff’s exceptions were ordered heard, in first instance, at general term.

Action by Francis Heath against W. C. Forbes as assignee for an insolvent firm, on two causes, viz.: for an amount due on a claim owed by firm; and for an amount due on a claim guarantied by firm. Defendant moves for a new taxation of costs.

Two actions by Mary M. Gouverneur and others against the National Ice Company in assertion of their right and title to the premises in question, which may be generally described as the lands under water and the water of Croton lake or Hinckley pond in Putnam county, a natural pond or lake about half a mile long, and a little less than a quarter of a mile wide, in its broadest part, oval in shape, and covering somewhat over 45 acres.

Case submitted on agreed statement. Action by George Darker against John M. Beck for specific performance of a contract of sale and purchase of real estate. Defendant refuses to accept a ■deed on the ground that the title is defective. Plaintiff derives his title from Henry M. Bradhurst, the person of that name referred to in the opinion.

Foreclosure proceedings instituted by Hewman Cowen and another against Christina Arnold and others. George -Finek, one of the defendants, appeals from an order directing the receiver in the action to pay over certain moneys to plaintiffs.

Action by the Mayor, etc., of the city of New York against the Tradesmen’s National Bank of the city of New York. From a judgment for defendant, plaintiff appeals.

Action by Arthur E. Browne against Maria B. Perris individually, and as administratrix of William G. Perris, deceased. There was a judgment foe plaintiff, and defendant appeals. See 7 N. Y. Supp. 172.

Action by George F. Yietor and others against Moritz Bauer and his wife, Cacelle Bauer. There was a verdict for plaintiffs, and from the judgment entered thereon defendant Moritz Bauer appeals.

<p>Appeal from special term, New York county.</p> <p>Action by Charles Hauselt against Elizabeth Patterson and others. From a judgment for plaintiff, defendants appeal. For former report, see 4 N". Y. Supp. 772.</p>

<p>Contracts—Performance.</p> <p>Plaintiff and defendants executed a writing by which plaintiff leased to defendants its franchises and rights to construct and operate a street railroad over certain streets, plaintiff agreeing to obtain the consent of the city authorities to the construction and operation of a cable line, and defendants agreeing to pay $15,000 a year to plaintiff. Meld, in an action on the agreement, that plaintiff, having failed to obtain the consent for the construction of the cable over a certain street in the route, could not recover</p>

<p>Appeal from special term, Kings county.</p> <p>Action by Ambrose De V. Montrose, as assignee of E. A. St. John, against Súsan E. Wanamaker for an accounting of the partnership affairs of the firm of King & Wanamaker. When King withdrew from said firm, it was agreed that he should receive half of the commissions thereafter derived from sales for one Merritt and others. Plaintiff, as assignee of said King, recovered judgment against defendant in a former action (21 Abb. N. C. 478) for the amount of the commissions then due. Prom a judgment for plaintiff defendant appeals.</p>

Action by Hugh McRoberts against Henry S. Bergman, Lena Bergman, Saraii A. Burke, Thomas S. Burke, Mary Burke, and others, to recover, certain land in Richmond county. From a judgment for plaintiff and from an order denying a new trial defendants appeal.

<p>Accord and Satisfaction.</p> <p>In an action to foreclose a mortgage for $1,700, it appeared that, at the time it was given, the mortgagee had a lien on the property for over S3,000, and that $200 Was then paid to the mortgagee. Several witnesses .testified that, at the time of the payment and the giving of the mortgage, both parties thereto stated that the payment and mortgage were in full settlement of mortgagee’s claim. The mort-. gagee testified to the same effect. The mortgagor testified that the mortgage was' given merely to secure mortgagee’s claim, and that the amount thereof was to be thereafter adjusted. Heidi that it was properly found that there was a full settlement.</p>

Action by William Walton against the Grand Belt Copper Company and William Belden. Defendant Belden, the receiver appointed in the action, appeals from an order denying his motion to vacate an order granting leave to sue. For reports of former litigation, see 6 N. Y. Supp. 370; 3 N. Y. Supp. 4398.

<p>Municipal Corporations—Removal op Policeman.</p> <p>Relator was charged with being absent from his post during his time for patrol duty. A woman of bad reputation testified that he had visited her in his uniform during his hours of duty, and had taken her to an office, which he had opened with a key. Other witnesses.corrohorated her. Onhehalf of defendant two persons testified to having keys to the office, hut stated that defendant had neither of their keys nor leave from them to go to the office. Other persons who had keys were not called. Held, that the question of defendant’s guilt was wholly one of fact for the commissioners, and his dismissal from the force would not be disturbed.</p>

Action by the board of health of the village of Hew Rochelle against' Eugenie Valentine to recover a penalty imposed by plaintiff for non-complionce with its regulations, and failing to abate a nuisance. The nuisance complained of was charged to exist by reason of waste water and fecal matter being allowed to run from premises owned by defendant into the streets of plaintiff, which premises were in possession of third parties.

Application by the East Avenue Baptist Church of Long Island City for an order directing the city treasurer to cancel water rates and rents. From an order granting the application the treasurer appeals.

<p>Appeal from special term, Westchester county.</p> <p>Application by William T. Byrnes for an order directing the city treasurer to cancel water rates and rents. The application was granted and the treasurer appeals. Argued before Barnard, P. J., and Dykman and Pratt, JJ.</p>

<p>Appeal from surrogate’s court, Westchester county.</p> <p>Petition by Elizabeth B. Guión to compel Philip B. Underhill to render Ms accounts as administrator with the will annexed of Isaac Underhill, deceased. From an order dismissing her application petitioner appeals. For former report, see 9 N. Y. Supp. 455.</p>

<p>1. Canals—State Ownership—Constitutional Law.</p> <p>Laws N. Y. 1889, c. 291, § 18, as amended by Laws 18p0, c. 314, of the act “ to establish and maintain a water department in and for the city of Syracuse, ” which provides that the Syracuse water board, “by and with the consent of the canal board, is authorized * * * to appropriate so much of the waters of S. lake as may be necessary to supply the city of Syracuse * * * with water, upon the express condition, however, that the city of Syracuse shall, when so required by the canal board, furnish * * * as much water for the use of the Erie canal as shall be taken by the city from S. lake, and the power granted by this act shall be deemed to include authority and power to provide such compensating water supply for the Erie canal, and to do and perform all those acts and things which shall be needful to acquire for said city and its inhabitants the water of S. lake, ” is not in violation of Const. N. Y. art. 7, § 6, which provides that “the legislature shall not sell, lease, or otherwise dispose of, any of the canals of this state, ” though the waters of S. lake, so far as necessary, had been previously appropriated as a feeder for the Erie canal.</p> <p>2. Municipal Corporations—Limitation op Indebtedness.</p> <p>Section 20 of the act provided for the issue of bonds by the city of Syracuse in aid of the establishment and maintenance of a water department, and made the bonds payable more than 20 years from the date of their issue, but provided for no sinking fund for their retirement at maturity. Held, that such section was not in violation of Const. N. Y. art. 8, § 11, which provides that “no county containing a city of over 100,000 inhabitants, or any such city, shall be allowed to become indebted * * * to an amount which, including existing indebtedness, shall exceed 10 per centum of the assessed valuation of the real estate subject to taxation, ” and that such section “shall not be construed to prevent the issue of bonds to provide for the supply of water, hut the terms of” such bonds “shall not exceed 20 years, and a sinking fund shall be created, on the issuing of such bonds, for their redemption, ” where it did not affirmatively appear that Syracuse contained more than 100,000 inhabitants, and that its existing indebtedness exceeded 10 per centum of the assessed valuation of its real estate subject to taxation. Approving Com-stock, v. City of Syracuse, 5 IT. Y. Supp. 874.</p> <p>3. Constitutional Law—Titles oe Laws.</p> <p>Laws N. Y. 1889, c. 291, entitled “An act to establish and maintain a water department in and for the city of Syracuse, ” and providing for obtaining water from Skaneateles lake, and for the condemnation proceedings necessary for that purpose, is not obnoxious to Const. N. Y. art. 3, § 16, forbidding the passage of any private or local bill embracing more than one subject, which shall he expressedcin its title.</p>

<p>Action by Henry Winthrop Gray, as receiver of the North Elver Sugar Refining Company, against the Oxnard Brothers Company and others. Defendants demur to the complaint.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Stacy B. Bittenhouse against Minot P. Winch and others. Prom a judgment dismissing his complaint plaintiff appeals.</p>

Caroline E. Bliel appeals from an order denying her motion for a mandamus directing the board of police commissioners of the city of Hew York to grant her a pension as tile widow of a deceased police officer.

<p>Certiorari to review the action of the police commissioners of the city of Hew York in dismissing relator, John J. Munson, from the police force of their city.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by James B. O’Brien against the Prescott Insurance Company. Defendant appeals.</p>

Action by Samuel W. Hale against William P. Shannon, Chester Bullock, and Cornelius B. Payne. There was a verdict for plaintiff, and from this judgment entered thereon, defendant Shannon appeals.

Action by Stephen Lee and William Whiting, as surviving partners of Lee & Sturgis, against Hugh F. Kendall, Charles B. Kendall, and John L. Taylor, for the purchase price of several bills of goods sold defendants Kendall.

Action by Anthony J. Drexel and others, composing the firm of Drexel, Morgan & Co., against Joseph M. Pease, George St. Am ant, the Mechanics’ National Bank, the National City Bank of New York, and - Alexander E. ’Orr, as assignee for the benefit of the creditors of Joseph M, Pease. Plaintiffs claimed certain merchandise which had been attached in suits by the •banks against said Pease.

<p>Charities—Time of Making Bequest.</p> <p>Testatrix executed a codicil reciting that, “doubts having arisen as to the validity of the bequests made for charitable purposes in my said will, I hereby modify said will * * * by making my friend W. my residuary legatee and devisee, and hereby request him to carry into effect my wishes in respect thereto; but this is not to be construed into an absolute direction on my part, but merely my desire.,r The charitable bequests referred to were made void by death of testatrix within, two months after the making of the will. Laws N. Y. 1848, c. 319, § 6. Held, that paroi evidence was inadmissible to establish any agreement between testatrix and: W. whereby he was to carry out the trust, and the codicil was not invalid as in contravention of the statute.</p>

<p>Appeal from circuit court, Warren county.</p> <p>Action by James Singleton and Jerry Singleton against the Phoenix Insurance Company. Plaintiffs appeal.</p>

<p>Appeal from special term, Hew York county.</p> <p>Action by William H. Cromwell and others against the American Loan & Trust Company and others, defendants. Defendants Hazard and the trust company appeal from a judgment overruling their demurrer to the complaint.</p>

Action by Louis Walter and another against Albert K. Pecare. An order was entered adjudging defendant guilty of contempt in. violating an order in -supplementary proceedings, and imposing a fine of $713, and directing his «commitment until he should pay the fine, or be otherwise discharged accord-ring to law. Defendant appeals.

Action by Catharine E. Van Courtland, as sole surviving plaintiff, against Harriet C. He vert and others, and by Edwin McGillis and others against Catharine E. Van Courtland and others.

Action by Betsy Sully against Henry Schmitt. Motion by plaintiff for a new trial on exceptions. Laws 21.

In the matter of the accounting of William J. Front as executor of Robert T. Prout, deceased, an appeal was taken from an order modifying a referee’s report. Appellant now applies for a settlement of the case on appeal.

Action for libel by Lucien S. Crandall against Ernest R. Barron and others, executors, etc., of James Densmore, deceased.

At chambers. Action by Adelaide E. Hillyer against Susan K. Vandewater and others. Motion to vacate judgment entered upon remittitur, and for return of remittitur to the court of appeals. For opinion of the court of appeals, see 24 X. E. Rep. 999.

Action by George C. Carter against Emily P. Beckwith and others to set aside a commission in lunacy. Judgment for plaintiff was entered on the report of the referee in Onondaga county, and defendants appeal. For decision of the court of appeals, see 10 N. E. Rep. 350.

<p>Appeal from special term.</p> <p>Action by Catherine Fritchie against Erastus F. Holden and others. Judgment was given for plaintiff, and defendants appeal.</p>

Exceptions to report of referee. Application by the department of public parks to acquire title to land. Robert L. Waters, a civil engineer and surveyor in the employ of the commissioners of estimate, excepts to the report of the referee concerning compensation to be made for his services and expenses.

Exceptions to report of referee. Application by the department of public parks to acquire title to land. Jane K. Dane, administratrix, excepts to the report of the referee on a claim of James C. Lane, presented for services and expenses as a civil engineer and surveyor.

<p>Municipal Corporations—Removal of Policeman.</p> <p>Relator was dismissed from the police force upon a charge that he was so much under the influence of liquor as to he unfit for duty. His captain and a roundsman both testified that he was under the influence of liquor, hut admitted that he was not grossly intoxicated. Relator denied that he had heen drinking, and the police surgeon, who examined him about half an hour after he had been taken to the station, testified that he was perfectly sober, and fit for duty. Held, that the dismissal should be set aside. Van Brunt, P. J., dissenting.</p>

<p>Appeal from circuit court, Chemung county.</p> <p>Action by Louisa W. Hamer against Franklin Sid way, as executor of William E. Story, deceased. Judgment for plaintiff, and defendant appeals.</p>

Action by Jerry Petrie against the Phenix Insurance Company of Brooklyn to recover for the Joss of a cargo of cement, underwritten by defendant through an open policy of marine insurance with book attached. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

<p>L Municipal Corporations—Police Force—Intoxicating Liquors—Oath.</p> <p>Laws N. Y. 1890, c. 163, § 3, which requires each member of the police force to take an oath, within 30 days after the passage of the act, that he is not interested in the manufacture or sale of intoxicating liquors, is merely directory as to time, and not mandatory; and the oath may lawfully be taken within a reasonable time after the expiration of such 30 days.</p> <p>2. Same—Removal of Policeman.</p> <p>A member of the police force of New York city, who was granted leave of absence during the 30 days prescribed by the above act, without any knowledge on his part as to its passage, and who did not return to the city until a few days after the expiration of the time limited, should be permitted to take the oath after his return ; and his removal because of his failure to take it within the 30 days is improper.</p>

Petition of the Metropolitan Elevated Railway Company relative to acquiring title to lands. Simon Bache, Solomon B. Ulman, Siegmund J. Bache, George W. Dean, and Edmund B. Williams, property owners, moved that the appeal be heard by the special term, which motion was overruled, and they appeal therefrom.

Beplevin by Edward Lange against David Lewi. Judge Truax, at special term, filed the following opinion: “The Code of Civil Procedure, § 1723,- authorizes a defendant in an action for a chattel to defend on the ground that a third person was entitled to the chattel without connecting himself with the latter’s title.

Action by William M. Bennet against the Washington Cemetery. Plaintiff alleged that defendant was indebted to him under a covenant in a deed to defendant from plaintiff’s ancestor.

<p>1. Mechanic’s Lien—Priorities—Fraudulent Judgment.</p> <p>A judgment against a partnership confessed by one of the partners in favor of his brother and sister, without the knowledge of his co-partner, for loans alleged to have been made to the firm, but of which the co-partner was likewise ignorant, and of which the brother and sister had kept no account, and for which they baa. taken no receipt, is fraudulent and void as against firm creditors, and will not affect a lien for material furnished the firm and used by it in the construction of houses, though the lien was not filed until a week after the judgment was recovered.</p> <p>3. Same—Jurisdiction of Trial Term of City Court.</p> <p>Since the trial term of the city court has jurisdiction of an action to foreclose a. mechanic’s lien, it has power, as incident to that jurisdiction, to declare fraudulent a transfer intended to defeat that lien.</p>

<p>Master and Servant—Ground for Discharge.</p> <p>The absence of an actress from a single rehearsal, owing to her physical exhaustion and consequent inability to attend, is not ground for her employers’ rescinding her contract of employment.</p>

Action by Charles F. Benjamin against the Public Service Publishing Company for services as correspondent, rendered under a contract consisting of plaintiff’s propbsal by letter to work for “©20 a week, upon the basis of my averaging 2,000 words per week, ” and defendant’s acceptance by ietter¿ stating that the suggestion of “ 2,000 words a week of correspondence is satisfactory at $20.” During the three months that plaintiff worked for defendant he was paid $20 a week.

<p>Appeal from special term, Monroe county.</p> <p>Action by Ida C. Kurz against Henry Fish and Walter J. Curtiss on a promissory note. A motion by defendants to change the place of trial from Monroe county to Oswego county for convenience of witnesses was denied, and defendant Fish appeals.</p>

<p>At chambers. Action by Peter Blake against John J. Harrigan, individually and as executor, etc., and others, to foreclose a mechanic’s lien. Defendants set up a breach by plaintiff of his contract to erect the buildings in question, and claimed damages in the sum of $8,000. Plaintiff’s demand for a bill of particulars being refused, he now moves for an order compelling defendant to furnish an itemized statement of the damages claimed. Code Civil Proc. H. Y. § 531, provides: “It is not necessary for a party to set forth in a pleading the items of an account therein alleged, but in that case he must deliver to the adverse party, within ten days after a written demand thereof, a copy of the account, which, if the pleading is verified, must be verified by his affidavit, to the effect that he believes it to be true, or, if the facts are within the personal knowledge of the agent or attorney for the party, or the party is not within the county where the attorney resides, or capable of making the affidavit, by the affidavit of the agent or attorney. If he fails so to do, he is precluded from giving evidence of the account. The court, or a judge authorized to make an order in the action, may direct the party to deliver a further account where the one delivered is defective. The court may, in any case, direct a bill of the particulars of the claim of either party to be delivered to the adverse party. ”</p>

Habeas corpus proceedings instituted by George V. Sims were dismissed, and said Sims appeals. Code Civil Proc.

Action by Ann Cranston, as administratrix of David Cranston, deceased, against the New York Central & Hudson River Railroad Company to recover damages for the death of her intestate. There was a verdict for plaintiff. From the judgment entered thereon defendant appeals.

<p>Application for writ of mandamus on the relation of William Van Valkenliurg against Theodore Myers, as comptroller.</p>

<p>1. Sale—Rescission—Fraud of Purchaser.</p> <p>In an action to rescind a sale for fraud and to recover the property, plaintiff must establish representation, falsity, scienter, deception, and injury, and all these must concur before a recovery can be had.</p> <p>8. Same—Representations op Solvency.</p> <p>Statements by a purchaser as to his solvency, made in April, cannot be legally-regarded as an assertion of his financial standing in October and November following.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Nicholas W. Harder, as executor of Lucretia Wendover, deceased, against Herman Plass and William H. Plass. There was judgment for plaintiff, and defendants appeal.</p>

Action by Eagle Square Manufacturing Company against George M. Andrew for the price of certain lumber sold and delivered by plaintiff to defendant. At the trial, the court directed a verdict for plaintiff. From the judgment entered thereon, defendant appeals.

Action for breach of contract of marriage. From a judgment entered upon a verdict for plaintiff,’and from an order denying his motion for a new trial, defendant appeals.

Action by James J. Dooley against Arthur Moan, brought before a justice of the peace. Defendant pleaded a counter-claim for goods sold and delivered, part of which was allowed by the justice, and the judgment thereon was affirmed by the county court on appeal. From the judgment of affirmance by the county court, plaintiff appeals.

Claim filed by Byron O. Spencer, under a general assignment by Charles Hooper to Alfred C. Hodgman for benefit of creditors, and heard, by stipulation, by the county judge as part of the final accounting of said assignee. From an order adjudging such claim entitled to a preference, the assignee appeals.

<p>1. Judgment—Correcting Irregularity—Notice and Affidavit.</p> <p>On a motion to modify a judgment for irregularity, made on notice and affidavit, the requirement of Gen. Rule Frac. N. T. 37, that “the notice or order shall specify the irregularity complained of, ” is sufficiently complied with if the irregularity is shown by the affidavit.</p> <p>3. Mortgages—Foreclosure—Costs.</p> <p>The report of the referee on the trial of an action to foreclose a mortgage found “that plaintiff have his costs of this action. ” Held, that this did not authorize a personal judgment for costs against any defendant.</p> <p>3. Same—Sale.</p> <p>On foreclosure of a mortgage of a tract of land, it appeared that defendant M. was entitled, subject to the mortgage, to a right of way over part of the land, a strip 10 feet wide; that the title to such strip, subject to the mortgage and to the right of way, was in defendant T., through a foreclosure of a junior mortgage; and that the title to the rest of the land, subject to the mortgage, was in defendant C., through foreclosure of a still later mortgage, which, when foreclosed, did not cover the strip. The conveyance to M. of the right of way was made by the owner of the land subsequently to all the mortgages, held, on an offer by M. to bid enough to make the judgment and costs out of the land other than such strip, that such other part of the land should be ordered to be sold first; that the judgment might be modified so as to direct such order of sale, on motion by M.; and that notice of such motion to C., who had not appeared in the action, was not necessary.</p>

Indictment against James Kennedy and Thomas Bowes for robbery in the second degree. On trial, the jury found them guilty of grand larceny in the first degree. From the judgment of conviction thereon defendants appeal. Code Grim. Proc. FT. V. § 445, provides, as to crimes other than those consisting of different degrees, that “the defendant may be found guilty of any crime, the commission of which is necessarily included in that with which he is charged in the indictment.”

On return to writ of certiorari. Certiorari issued on the petition of the Edison Electric Illuminating Company of Hew York against Edward Wemple, comptroller of the state, to review an assessment by him for state taxes upon said company.

Action by Henry Van Wormer for divorce from his wife, Georgiana Van Wormer. From an order that plaintiff pay to defendant the sum of $150 for expenses incurred and to be incurred by her in the defense of the action, plaintiff appeals.

<p>Appeal from special term, Montgomery county.</p> <p>Action by Harriet McDonald, as a judgment creditor of the defendant Maria McDonald, to set aside as fraudulent certain conveyances by her to the defendant Carrie McDonald, and by the latter to the defendant Lillie S. Stevenson. From a judgment for plaintiff, rendered upon trial by the court, said defendants appealed. For former report, see 7 N. T. Supp. 935.</p>

Application by The Hew York Phonograph Company tor a writ of mandamus to Prank Bice, secretary of state, commanding him to-file in his office certain papers for the consolidation of two corporations. From an order denying the application the relator appeals.

Action by Edgar Strakosch against Carl Strakosch for damages for breach of a contract of hiring. By the contract plaintiff was to act as agent and manager of defendant’s opera company at a certain amount per week, “until the close of the season, which will not last longer than the middle of May. ”

<p>Charities—Validity of Devise.</p> <p>Laws N. Y. 1848, c. 319, § 6, provides that “any corporation formed under this act shall he capable of taking, holding, or receiving any property, * * * by virtue of any devise or bequest, * * * provided . * * * no such devise or bequest shall be valid in any will which shall not have been made and executed at least two months before the death of the testator. ” Held, that devises made within two months of testator’s death, to societies incorporated under said law, and under laws which gave them power to take by will, “subject to the provisions of law relating to devises and bequests, ” were invalid, though in the will revoked by said will similar devises had been made to the societies.</p>

Action by George W. Cole against Sidney B. Boby to recover for legal services rendered by plaintiff and his partner to defendant. There was a judgment on a verdict for plaintiff, and an order was entered denying a motion for a new trial, and defendant appeals. For former report, see 7 N. Y. Supp. 952.

Action by the Troy & Albia Horse-Railroad Company against George B. Smith, to recover possession of a certain bond alleged to be the property of the plaintiff. The defendant and Theodore E. Haslehurst were the acting ■executors of Gorton P. Cozzens, deceased, and Haslehurst was also the treasurer of the plaintiff, and, as such, the custodian of the bond in question.

Action of replevin by Samuel T. Guilford against Joseph B. Mills, as sheriff of Warren county. From a judgment for defendant entered on the report of a referee plaintiff appealed.

Action by Josiab Van Curen against Frank Switzer for the conversion of a horse. A judgment rendered in the justice’s court in favor of plaintiff was reversed by the county court, and plaintiff appeals.

Exceptions from circuit court, Monroe county. Action by Henry Oberlies against Balthasar Bulinger. Plaintiff was non-suited, and his exceptions were ordered heard in first instance at general term.

The report of the appraiser of the estate of Charlotte G. S. Keech, deceased, assessed and fixed the legacy tax on a legacy to the Baptist Home Society of the city of Hew York. For the surrogate’s opinion, see 7 H. Y. Supp. 331.

Action by Aaron R. Stevens, in behalf of himself and of all others similarly situated, to procure the sale of theLebanon-Springs Railroad under judgments of foreclosure and sale procured by the defendant the Union Trust Company, in December, 1872, as trustee for the holders of the Lebanon Springs Railroad Company’s first mortgage bonds, and also as trustee for the bondholders of the Harlem Extension Railroad Company’s mortgage bonds upon the same railroad, the Harlem…

Action by Cornelius W. Carnright against Morgan Gray and William Freligh, as executors, etc., of Samuel E. Freligh, deceased, upon a promissory pote alleged to have been made by said Samuel P. Freligh, as follows: “Quarryville, September 2d, 1871. Thirty days after death I promise to pay to Cornelius W. Carnright fifteen hundred dollars, with interest.

Action by Jerusha B. Edwards, brought against Lenora Baker and Fred. S. Baker, to foreclose a. lien on certain real estate. Elizabeth B. Meader, to whom tlie property had been conveyed, was brought in by order and made a party defendant; and she alone answered the complaint. From a judgment dismissing the complaint on the merits as to said defendant, plaintiff appeals.

Action by Jane Higgins, as administratrix, etc., of George W. Smith, deceased, against the village of Glens Falls, for damages for the death of said George W. Smith from a fall alleged to have been caused by the unsafe condition of a sidewalk in that village. The jury found a verdict for plaintiff. From the judgment entered thereon, and from an order denying its motion for a new trial, defendant appeals.

Motion to dismiss appeal. Action by Franklin Bailey against Mary A. Kincaid, brought in the county court in which defendant had judgment. Under the then existing provision of Code Civil Proc. N. Y. § 1841, that an appeal to the supreme court “must be taken within 60 days after service upon the attorney for the appellant of a. copy of the judgment and notice of the entry thereof,” the time for plaintiff to appeal began to run May 6, 1890.

<p>Abbbst in Civil Action—Money Received in a Fiduciary Capacity.</p> <p>Under Laws N. Y. 1873. c. 688, providing that an agent of an insurance company “shall be held responsible in a trust or fiduciary capacity for any moneys received by him for such company, ” an arrangement by which such an agent, after deducting commissions and expenses from premiums collected by him, is to account for, and pay monthly, the balance by draft to the company, does not change the relation to that of debtor and creditor; and, on his failure to pay over such monthly balance, he is liable to arrest in an action therefor, as for money received “in any fiduciary capacity, ” within Code Civil Proc. N. Y. § 550, subd. 3.</p>

Application by Henry.J. Green for a writ of mandamus to the board of education of the city of Cohoes, commanding them to convene at their next regular meeting, appointed by the rules of the board to be held at a specified place and time, and proceed to organize as such board, and appoint a president of the board. From an order granting the writ, the board and certain of its members appealed. '

Replevin brought by Charles Y. Whittin and others against John C. Fitzwater. There was a verdict for defendant, and from the judgment entered thereon in his favor plaintiffs appeal.

<p>Insurance—Conditions or Policy—Waiver.</p> <p>A policy of fire insurance provided that, unless specifically agreed to in writing; in or upon the policy, the existence or procurement of other insurance on’the property should avoid the contract, and that “no agent has power to waive any condition of this contract. ” The agent who secured the insurance subsequently issued, to the assured a policy in another company, but made no indorsement on the first policy consenting to such additional insurance. Held, that there was not a valid' waiver of the condition in the first policy against additional insurance, even though, the agent had apparent authority to consent to such waiver.</p>

Exceptions from circuit court, Monroe county. Action by George D. Smith against M. Edwin Servís. Plaintiff moves for a new trial on exceptions ordered heard in the first instance at general term.

Action by Rufus Scofield and another as executors, etc., of Lucy Jane Blodgett, deceased, against Althea A. Moore. Trial was had without a jury, and resulted in a judgment for plaintiff, from which defendant appeals.

<p>Municipal Corporations—Removal op Police Oppicers.</p> <p>Dismissal of an officer from the police force on a charge of being absent from his-post and intoxicated will be sustained on certiorari, where a preponderance of the evidence seems to substantiate the charge.</p>

Action by David K. Bell and others, as the board of health of the town of Brighton, against the city of Rochester, to restrain the discharge of sewage by defendant upon the lands of the town of Brighton. From an order restraining the discharge after October 1, 1889, defendant appeals. Laws N. Y. 1885, c. 270, creates boards of health in towns, with power to hear complaints concerning nuisances, and to make and enforce orders in relation thereto.

<p>Appeal from Erie county court.</p> <p>Action by Thomas Ashberry against the town of West Seneca. There was judgment for plaintiff for $300. Defendant appeals.</p>

<p>Municipal Corporations—Removal op Police Officers.</p> <p>Relator was dismissed from the police force on a charge of being intoxicated while on duty at a fire. Two witnesses testified that relator at that time was intoxicated, and the surgeon who saw him three hours afterwards considered him somewhat intoxicated. Relator was also described as excited, acting, like a crazy person, and firing his pistol towards the crowd. Held, that the dismissal would not be disturbed, although witnesses for relator did not consider him under the influence of liquor.</p>

Action by Thomas Collins against the New York Central & Hudson River Railroad Company. There was a verdict for plaintiff for $4,503.96. From the judgment entered thereon, defendant,appeals. For report of a former appeal see 16 H. E. Bep. 50.

<p>Descent and Distribution—Taxation of Legacies.</p> <p>Under the New York statute taxing collateral inheritances, (Laws 1885, c. 483,) the Board of Foreign Missions of the Presbyterian Church is subject to taxation on a legacy, it not being exempted by provisions of its charter, or falling within any of the exemptions of the act.</p>

The charge against relator was conduct unbecoming an officer, the specification being that he was so much under the influence of liquor a» to be unfit for duty during his tour of patrol duty.

This is an appeal by the people and the comptroller of the city and county of New York from an order directing the executors of Henrietta A. Lenox to pay $2,500 to the Board of Home Missions of the Presbyterian Church of the United States.

Action by Theodore Haebler against Elijah Meyers and J. Hafby Moses. Defendants demurred on the ground that the complaint did not state facts sufficient to constitute a cause of action. Van Brunt, P. J ., sustained the demurrer. For report of proceedings at special term, see ante, 7; and, for former litigation, see 4 H. Y. Supp. 873; 9 H. Y. Supp. 725; 22 H. E. Rep. 167.

Application by the district attorney for the assessment of a tax on collateral inheritances in the estate of Worthington Romaine, deceased. From the orders of the surrogate making such assessment, the administrator and collateral next of kin of Romaine appeal.

<p>Municipal Employes—Weekly Payment op Wages.</p> <p>Laws N. Y. 1890, c. 388, § 1, requiring municipal corporations to pay weekly “ each and every employe engaged in its business the wages earned by such employe to within six days of the date of such payment, ” was not intended to apply to a clerk in the mayor’s office, the secretary and treasurer of the park commissioners, a member of the fire department, a school-teacher, and a patrolman on the police force.</p>

Action by Ellen S. Graham as administratrix, etc., against George D. Chapman, receiver of the Lackawanna & Pittsburg Railroad Company. There was a verdict for plaintiff, and from the judgment entered thereon defendant appeals.

Action by Enos Gr. Laney individually, and as administrator of the estate •of James Laney, deceased, against Mary K. Laney. An interlocutory judgment was entered overruling a demurrer to the complaint, and there was an order denying defendant’s motion to dissolve an injunction. Defendant appeals.

Exceptions from circuit court, Monroe county. Action by Hermann Beeckel as administrator of Leopold Haffennegger against the Imperial Council of the Order of United Friends. A verdict was directed for plaintiff, and defendant’s exceptions ordered heard in the first instance at general term.

Action by the Postal Telegraph Cable Company against Hugh J. Grant, sheriff of the city and county of Hew York, to restrain him from enforcing a warrant issued to him for the collection of an assessment on plaintiff’s property.

On reargument. Motion for new trial on exceptions. Action by Blanche L. Andrews against William G. Brewster and ¡Randolph W. Townsend, as executors, etc., of Seabury Brewster, deceased. Defendants’ exceptions, taken on trial at circuit, were ordered to be heard in the first instance at the general term. At the hearing, the exceptions were sustained, and a new trial ordered. 9 N. T. Supp. 114.

Action by Robert F. Farrell, as president of Lodge No. 6of the United Or-' der of Carpenters & Joiners of America, against Louis Cook, James J. Ward, Patrick Keating, Edward O’Connell, John Humphreys, and the Union Dime' Savings Bank, to recover money deposited in said bank to the credit of the lodge, of which defendant Cook also claimed to be the president, and the other individual defendants claimed to hold other offices.

<p>Forgery—Sufficiency of Evidence.</p> <p>An action on two promissory notes purporting to have been executed by M., while a convict in the state’s prison, was defended on the ground that D., a keeper of the prison, under the pretense of having M. sign a petition for his own pardon, obtained his signature to two pieces of paper, which proved to be, in form, promissory notes, each written at the bottom of a half-sheet of legal cap, in the handwriting of D. S., one of the convicts, testified that he saw M. sign his name to two pieces of paper; that no writing was immediately above the signature; that at the head of the paper for a few lines was a petition for a pardon; and that D. told him to have M. sign his name at the bottom, so as to leave room to make a note on each page above the signature; and witness pointed to certain marks, indicating where he was to tell M. to sign his name. D. denied any conversation with S. about the notes, and testified that he saw M. sign the notes at the request of another convict, and that he supposed the latter took the notes away with him. Held, that whether the transaction was a forgery was a question for the jury, and that their finding in the affirmative would not be disturbed.</p>

<p>Motion for disbarment of John E. Murray, an attorney.</p>

This is an appeal by Anson 0. Stevens from an order denying his motion that a judgment entered in favor of the plaintiff in an action against himself and his co-defendant Erastus Crawford be satisfied of record on the ground that it had been paid by said Crawford.

<p>Appeal from special term, New York county.</p> <p>Action, by William W. Dudley against the Press Publishing Company. Plaintiff appeals from an order denying his motion to vacate an order for his examination before answer, and also to vacate an order providing for the service of the order for examination upon plaintiff personally, wheresoever 'he might be found. For report of a former appeal, see 6 N. Y. Supp. 388.</p>

Action by William II. Westervelt and others against the Agrumaría Sicula Societa Anónima di Trasporti Marittimi to recover damages for breach of contract.

<p>Custom and Usage—Evidence—To Explain Contract.</p> <p>Defendants entered into a written contract to sell to plaintiff’s assignor, at a cer- • tain price, all tbe cross-ties that defendants could obtain. The ties were inspected» by an agent of tbe purchaser, and classified by him as “firsts” and “seconds, ” indicating quality. During the inspection, defendants notified the purchaser that they would not recognize any ties inspected as “seconds. ” Held in an action for alleged overpayment on the ties, that the referee properly refused to find that ties are classified as “first class, ” “second class, ” and “culls; ” that the ties sold by .defendants were thus inspected; and that the second-class ties were taken at half the price of those of first class, since such requests involved proof of a general custom, to modify a contract, without evidence of its application to .the facts of the case.</p>

<p>Negligexce—Evidence.</p> <p>Plaintiff, a repairer of the running gear of defendant’s cars, was ordered to remove a cap over a force-pump used to apply whitewash to defendant’s premises. When he had loosened one of the screws holding the cap in its place, the whitewash was blown into his face and eyes by the compressed air, causing serious injuries. The proof tended to show that the pump had become clogged, and it was necessary to remove the cap to relieve it. This, according to the uncontradicted testimony of one of the witnesses, had been done by himself on other occasions, with other pumps, without any danger, and there was no cause for suspecting injury to plaintiff on the occasion in question. Held, that defendant was not chargeable with negligence.</p>

<p>Municipal Corporations—Removal op Policeman—Weight op Evidence.</p> <p>Relator was dismissed from the police force upon a charge of intoxication. Readmitted, after stating he had been treated for sciatic rheumatism, that he had been up all night, had no sleep, and took a glass of brandy; that he had had nothing-to eat; that he was not accustomed to brandy, and it went to his head. Field, that, the sufficiency of this explanation was a question for the commissioners, and that, their determination would not be disturbed.</p>

<p>Negligence—Evidence.</p> <p>Plaintiff, a servant of defendants, was injured while riding on a freight elevator in a building leased in common by defendants and others. The elevator was not supplied with a safety-clutch, which would have prevented the accident, but defendants were not shown to have been aware of this fact, and there was no proof that the absence of the clutch was so conspicuous as to be readily seen, defendants having only moved into the building on the day of the accident. A sign was up at the street entrance forbidding persons to ride in the elevator, and it did not appear that defendants in any way sanctioned the use of this elevator by their employes. Field, that defendants were not chargeable with negligence, and that there could be no recovery. Bbady, J., dissenting.</p>

Action by Anton Benesch against the John Hancock Mutual Life Insurance Company for balance of salary. A circular printed by the company and signed by one Miller, as superintendent, was claimed to have bound the company, also his receiving money, which it was alleged was turned over to the company, as security in place of a bond from collectors. Judgment for plaintiff, and defendant appeals.

Action by John S. Worman against Joseph Frankish and others. From an order of Mr. Justice Giegerich vacating an order previously made by said justice requiring plaintiff to give costs, defendants appeal.

<p>Partnership—Liability op Retiring Partner.</p> <p>After defendants had dissolved partnership, and one of them had gone out of the firm, plaintiff sold goods on the order of the remaining partner. The goods were sold and billed in the firm name of defendants, and at that time the business sign still bore the firm name. Plaintiff did not know of the dissolution, but supposed the partnership still existed. The retiring partner knew that her name was still on the sign, but did not know that it affected her liability. Held, that plaintiff could recover from her as for a partnership debt.</p>

Action by William II. Owen against John R. Conner, impleaded with another. There was judgment for defendants, and plaintiff appeals. Code Civil Proc. N. Y. § 1204, provides that judgment may be given for or against one or more plaintiffs and for or against one or more defendants. It may determine the ultimate rights of the parties on the same side, as between themselves, and it may grant to a defendant any affirmative relief to which he is entitled.

<p>Certiorari to review dismissal of relator, Chester S. Sciford, from the police force of the city of Hew York.</p>

<p>Taxation or Costs.</p> <p>Judgment was rendered upon demurrers in favor of D. and S. and seven other defendants for costs and an additional allowance. The judgment was affirmed at general term, with costs. The court of appeals reversed the judgment except as to D. and S. Held, that D. and S. were entitled to full costs at general and special terms, and to two-ninths of the extra allowance.</p>

Action by Edward Fay against the town of. Lindley for injuries caused by a defective highway. Judgment Was entered on a verdict for plaintiff, and defendant appeals.

<p>Negligence—Dangerous Premises.</p> <p>Plaintiff, while a visitor on premises leased by defendant to an athletic club, was injured by slipping upon a slat walk between the dressing-room and bath-room, and accidentally passing his hand through a glass door, which was leaning against the partition at the side of the walk. He had taken a bath, and was apprehensive that another person in the room was about to throw water upon him, and, to avoid that, stepped quickly along the walk, and slipped and sustained the‘injuries. The door did not overreach upon the walk, and was no obstacle in the way of persons using the walk. Meld, that defendant was not liable, and that the lack of proof that the door had been placed where it was by defendant would also preclude a recovery. Brady, J., dissenting.</p>

Action by Caroline Livingston against the New York Elevated Railroad Company and the Manhattan Railway Company. Plaintiff appeals from an order permitting defendants to file nunc pro tune as of the 7th of June, 1890, a notice of appeal from a judgment rendered in the action in favor of plaintiff, entered on the 8th day of May, 1890. The time to serve the notice expired on June 7, 1890.

Action by Theresa Wiwirowski, as administratrix, etc., against the Lake Shore & Michigan Southern Railway Company to recover damages for the killing of plaintiff's intestate. There was a judgment for plaintiff for $2,-500, and a motion for a new trial on the minutes was denied, and defendant appeals.

Nathan Terrell was indicted for an assault on one Alice E. Young. There was a conviction of assault in the second degree, and defendant appeals.

<p>Appeal from Erie county court.</p> <p>Action by Frank 0. Bolt against John Hauser. An order was entered denying defendant’s motion to vacate an order made September 19, 1887, appointing Manly O. Green receiver of defendant’s property, and defendant appeals. For opinion filed in the county court see 10 2f. Y. Supp. 397.</p>

<p>Execution—Supplementary Proceedings—Limitation.</p> <p>Code Civil Proo. N. Y. § 3017, provides that, on filing the transcript of the judgment of a justice of the peace in the county clerk’s office, it is to be deemed a judgment of the county court, and enforced accordingly. Section 382, subd. 7, provides that “an action on a judgment or decree rendered in a court not of record” must be brought within six years. Section 414 provides that “the word 1 action ’ contained in this chapter (of which section 382 is part) shall be construed, when it is necessary so to do, as including a special proceeding, or any proceeding therein, or in an action, ” and expressly excepts from the provisions of the chapter an action or proceeding for which a different limitation is provided by law. Section 2435, limits supplementary proceedings to 10 years. Held that, where a justice’s judgment has been filed in the county clerk’s office, supplementary proceedings may be instituted within 10 years from its rendition.</p>

Action by Benjamin F. Sherman against the Beacon Construction Company, Limited. Defendant appeals from an order directing the examination of its chairman, J. Edward Addicks, to enable plaintiff to obtain facts to frame his complaint.

Action by Charles F. Starr against Charles Gordon Patterson, Plaintiff appeals from an order directing reference to ascertain the facts respecting defendant’s discharge in insolvency.

Action by the Commercial Union Assurance Company, Limited, of London, against Henry C. Bauer, impleaded with Peter Koenne, to recover $2,000, with interest, alleged to have been executed by defendants to the plaintiff. There was a verdict for plaintiff for $2,132.98. Prom the judgment entered thereon defendant Bauer appeals.

Action by William A. Barwick against the Gast Lithograph & Engraving Company, Limited. There was a verdict for plaintiff, and from the judgment entered thereon defendant appeals.

<p>L Deed—Delivery—Retention by Grantor.</p> <p>- In March, 1887, B., a widower with three infant children, executed three several-deeds of trust conveying certain lots and the houses thereon to a trustee for the ultimate benefit of his three children, the rents being first devoted to repairs, etc., and the residue reserved for the use of B. during his life. These deeds were duly-executed by the grantor and the trustee, and recorded the next day. B. died leaving a will giving all his property to his wife, whom he married after the execution of the deeds, and reciting that he had provided for his children by the trust-.deeds. in question. Held, sufficient evidence to support the inference that the deeds had been duly delivered, although they were found in B.’s safe at the time of his decease,, and he continued in control of the property.</p> <p>3. Husband and Wife—Conveyance in Fraud of Marital Rights.</p> <p>About six months after executing the trust-deeds, B. proposed marriage to plaintiff, representing that he was the owner of the lots conveyed, and the proposal was. accepted. Held, that the deeds were not void as in.fraud of.plaintiff’s marital rights, it not appearing that they were executed in contemplation of marriage.</p> <p>3. Trusts—Validity—Use or Grantor.</p> <p>Plaintiff was not a creditor of B., within 3 Rev. St. N. V. (6th Ed.) p. 142, § 1, which provides that a conveyance in trust for the benefit of the grantor during his life, and therefore the trust created by the deeds, was not void on that ground.</p>

Action by George Huber against the Ocean Steam-Ship Company of Savannah, Ga., and William Wilson, to recover for injuries sustained while unloading lumber out of the steam-ship Dessong. After all the evidence on the part of plaintiff was in, the complaint was dismissed as against the steam-ship company. The jury returned a verdict against defendant Wilson for $1,250, and he now appeals from the judgment entered thereon.

Action by Ann E. Wynkoop against Mary S. Van Beuren and others to obtain a perpetual injunction to restrain defendants from interfering with, undermining, or disturbing the easterly wall of a building on plaintiff’s premises, No. 5 East Thirteenth street, New York city.

<p>Action by Manuel Pomares against William B. Duncan for breach of contract. Defendant pleaded a counter-claim, and took judgment by default.</p>

Action by Nellie Arnett as administratrix of B. Arnett, deceased, Ezekiel M. Hill, and another, to foreclose a mortgage. A judgment for the foreclosure of the mortgage, and a sale of the mortgaged premises, was entered in. Monroe county, on the report of the referee, and defendants appeal.

Action by Ferdinand Blumenthal and others against David T. Lynch and ■others to set aside a chattel mortgage given by Staples & Conley, judgment debtors of plaintiffs, to defendants, and to subject the mortgaged property to plaintiffs’ judgment.

<p>Municipal Corporations—Removal op Policeman—Incurable Mental Disease.</p> <p>A member of the park police force is properly removed therefrom upon the statements of physicians that he is suffering from an organic and progressive disease of the brain of an incurable character, and is quite likely to indulge in outbursts of insane temper. Distinguishing People v. Robb, 8 N. Y. Supp. 502.</p>

. Appeal from special term, Livingston county. Action by James Fraser and others as executors, etc., of John McNaughon, deceased, against the Trustees of the General Assembly of the United Presbyterian Church of North America, impleaded with Margaret McNaughton and others, to obtain a construction of the will of plaintiff’s testator. The Trustees of the United Presbyterian Church, etc., appeal.

Action by Mary E. Bagley against Adelia A. Jennings. Plaintiff’s appeal from the municipal court was dismissed by the county court,, and plaintiff appeals.

<p>Receivers—Action—Substitution as Deeendant.</p> <p>The receiver of a railroad company is properly substituted as defendant im an action for tort committed by the company before his appointment.</p>

Action by William J. Lord and Anna Isabel Lord against John Z. Lord. Plaintiffs appeal from a judgment reversing a judgment rendered in their favor -by a justice of the peace.

Action by Frank Waiton against Parke Godwin, one of the directors of the American Opera Company, limited, to recover from him an alleged debt of that company, on the ground that an annual report of the company, signed by him, was false. The claim against the company had been assigned to plaintiff by one Henry Bates, and was for damages for the discharge of Bates from the employ of the company, in violation of an agreement between them.

<p>Appeal from circuit court, New York county.</p> <p>Action by Julia L. Ellis against the mayor, aldermen, and commonalty of the city of New York, to recover the amounts awarded to plaintiff as damages for the taking of her lands for Pelham Bay park for the use of that city. Laws Y. Y. 1884, c. 522, under which the lands were so taken, provided by section 2, that, on the final confirmation of the report of the commissioners appointed to estimate such damages, the city “shall become and be seized in fee of all the said lands laid out for the said park and parkways;” and, by section 4, that the city “shall within four calendar months after the confirmation of the said report, pay to the parties entitled thereto, the respective sum or. sums so estimated and reported in their favor respectively, and in default thereof said persons or parties respectively, his, her, or their respective heirs, executors, administrators, successors or assigns, may sue for and recover the same.” A demurrer by plaintiff to a defense in the answer was, on hearing, overruled; and, on trial of the issues of fact, the complaint was dismissed. Prom the judgment dismissing the complaint, and from the interlocutory judgment overruling the demurrer, plaintiff appeals.</p>

<p>Appeal from surrogate’s court, New York county.</p> <p>.Petition by George A. Powers, executor of Sarah Macomber, deceased, for a judicial.settlement of his accounts. From the final decree thereon Mary L. O’Plynn, one of the beneficiaries under the will, appeals.</p>

<p>Appeal from judgment on report of referee.</p> <p>Actions by William Gaskell, William P. Greenlie, and Andrew A. Bremner, and by William H. Beard and Charles H. Kimpland, against Duncan A. Gillies and others, to foreclose liens for "materials supplied to Gillies for work done by him under a contract with the city of Hew York. The actions were consolidated, and tried before a referee, who found that the Hilton Timber & Lumber Company, one of the defendants, which had filed a similar lien, was entitled to be first paid out of the moneys subject to the liens, the plaintiffs Gaskell and others second, and Beard & Kimpland third. From the judgment entered on the report, the plaintiffs Beard & Kimpland, and the defendant Gillies, appeal.</p>

<p>L Highways—Liability fob Obstruction.</p> <p>A person who places a number of logs in a public highway, and leaves them there, is responsible for injuries sustained by reason of the obstruction, and it is immaterial whether he or some other person owned the logs.</p> <p>2. Appeal—Objection not Apparent on the Record.</p> <p>_ Where an order denying a new trial fails to disclose upon what ground the motion was made or denied, no questions aré presented for review, except exceptions appearing in the record.</p>

Motion by Leopold Boehm, defendant, that a judgment in the action, in favor of Christian Eberspacher, plaintiff, be canceled and discharged of record, on the ground that defendant had been discharged therefrom in bankruptcy. Code Civil Proc.

Action by William S. Servís against.George Holwede and Malvina Reudahl, as administrator, etc., and John Graham, as assignee, etc. The complaint was dismissed, and plaintiff appeals.

Action by the Illinois Watch Company and others, judgment creditors of defendants William H. Payne and Frederick D. Steck, to set aside as fraudulent a general assignment made by said defendants for the benefit of their creditors, and also to set aside as fraudulent certain judgments confessed by said defendants to the defendants May L. Payne, Augusta L. Bamber, and Louise Nellis.

Action by Patrick Kenney against the Ocean Steam-Ship Company of Savannah to recover damages for personal injuries received while upon one of defendant’s steam-ships, by reason, as he alleged, of negligence of defendant’s servants. Plaintiff was in the employ of the Morgan Iron-Works, and, in the course of his employment, had been engaged, previous to the injury, in making repairs on the boiler of defendant’s steamship.

<p>Appeal from judgment on report of referee.</p> <p>Action by Austin E. Hathaway against the Orient Insurance Company. There was judgment for plaintiff, and defendant appeals.</p>

<p>¡Slander—Evidence.</p> <p>In an action for slander, plaintiff was permitted to show that defendant had no family dependent upon him, and was a man of wealth. Held error, which was not cured by a charge that the jury were to only consider the evidence for the purpose of arriving at the weight to be given to the statements made by defendant concerning plaintiff.</p>

. Action by Lydia Hulbert and others, administrators, against William B. Clark and others. From a j udgment entered on report of a referee, defendants appeal.

Action for a limited divorce, brought by Carrie C. Fowler against William P. Fowler. From an interlocutory judgment in favor of plaintiff, the defendant appeals.

Action by Charles J. Esdaile against Andrew J. Wuytack. The complaint •alleges that the plaintiff and defendant were copartners up to December 1, 1889, when the copartnership was dissolved by mutual consent, all partnership ■assets and property being equally divided between them, in consideration of which it was at the same time agreed that all copartnership liability then outstanding and existing should at its maturity be borne and paid equally between them; that there was…

Tw.o actions respectively brought by Morris Isaacs and Hyman Levy against Isaac Mintz. The receiver of defendant appeals from order denying his motion to set aside sale upon executions.

Action by William O. Wyckoff and others, against the Union Loan & Trust Company of Cleveland, Ohio, to recover the price of a type-writing machine. There was judgment for plaintiff, and defendant appeals.

Action for divorce on the ground of adultery brought by Christopher Steffens against Lottie L. Steffens. From a judgment denying a divorce, plaintiff appeals.

Action by Ann Brady against Nicholas Martin. Plaintiff noticed the case for trial. Defendant did not. After several adjournments the action was dismissed by default, plaintiff failing to appear. A motion to open the default was granted on payment of $15 costs. Plaintiff appeals from the order.

Action by Wilhelmina Friedman as administratrix, etc., of Henry Friedman, deceased, against the Dry-Dock, East Broadway & Battery Railroad Company. From a judgment dismissing her complaint the plaintiff appeals. Dissenting opinion of Judge VanHoesen is as follows: “The evidence shows-that on an evening in January, the plaintiff’s intestate, an old man of sixty-seven, started to cross Grand street, from the north side to the south side..

Action by Charles Hume against the George C. Flint Company for services rendered. There were verdict and judgment for plaintiff, and defendant •appeals.

Indictment against Bobert II. Spriggs for assault upon Charles Mayo. At the trial Mayo testified that in an altercation between them, begun by defendant, the latter wounded him with a knife.

Action by Mary Schneider against Edward, Leitzman and others. Defendants appeal from an order denying their motion to vacate an injunction issued therein.

Action by Henry F. Hart and others, executors, against George A. Eiley, impleaded. From a judgment for plaintiffs, entered on the report of a referee, defendants appeal.

Motion by defendants in the action, Henry A. Dickinson and David I. Johnson, to vacate, an attachment against their property obtained by the plaintiffs, William H. Thomas and Percy Thomas. The motion was made on the ground of insufficiency of the aBidavits on which the attachment was granted, and was denied at special term. Prom the order denying the motion defendants appeal.

board of assessors of Hew York city, making assessments on the property of the relators, John Davidson and others, for expenses of paving Madison avenue in that city between 133d and 137th streets. For previous proceedings in same case, see 9 H. Y. Supp. 690.

Action by J. Forman Wilkinson, as sole surviving executor, and others, against Simon D. Paddock and Thomas B. Sessions, impleaded with Gonrad Loos and others. Said Paddock and Sessions appeal.

Action by the Bodney Hunt Machine Company against James M. Stewart and William B. Stewart for the conversion of four sets of water-wheels. There was a judgment in plaintiff’s favor, and defendants appeal.

Action by Mary Mulligan, administratrix, etc., of James Mulligan, deceased, against the New York Central & Hudson River Railroad Company, for the alleged negligent killing of her intestate. There was a verdict in plaintiff’s favor. From a judgment thereon, and an order denying a motion for a new trial on the minutes, defendant appeals.

<p>Negotiable Instruments—Delivery.</p> <p>Upon an issue whether a note of $500, payable in six years, executed by defendant’s testator to plaintiff, his son, had been delivered, it appeared that plaintiff had worked for testator a number of years without pay; that testator, being sick, summoned his family, including plaintiff, to his room, and, producing the note, told them it was for plaintiff, and asked him if that would be enough, and upon his answering that it would he, testator handed the note to his daughter to be laid aside until he was able to sign it; that the note was signed the next day, and laid away in a bureau in testator’s room, to which plaintiff had access; that soon after, and while his father was living, plaintiff took the note from the bureau and examined it, and that after testator’s death plaintiff assented to the family resolve that it was best to place the note, for his benefit, with one of the executors. Held, that a finding that there was no delivery and acceptance of the note would be set aside.</p>

<p>Appeal from special term, Livingston county.'</p> <p>Action by Mary G. Morris against Alfred G. Sickley and others. From a jvdgment in favor of plaintiff the defendant appeals.</p>

Action by Henry W. Wedge against James W. McMahon and others, as •executors, etc. There was a verdict for plaintiff, and defendants appeal from an order refusing to set it aside, made on the minutes of the court.

<p>Appeal from special term.</p> <p>Action against John W. Gillette to recover a penalty. From a judgment overruling hid demurrer to the complaint, defendant appeals.</p>

Action by Harry D. Gram and others,-by their guardian, against the Equitable Accident Association of Binghamton, for failure to levy an assessment on the deatli of Harry D. Cram, a deceased member of defendant. There was a verdict in plaintiffs’ favor, and defendant now moves for a new trial on a case and exceptions ordered to be heard in the first instance at the general term.

Indictment against Louis Aldrich, charging, in different counts, rape, and assault in the second degree, on Annie Purcell. From a judgment convicting him of assault in the second degree defendant appeals.

Action by John Egmont Seherraerhorn, as trustee of the estate of Emilie De Maearty, against Franklin A. Thurston, Terence Farley, Mary A. Parley, Patrick Farley, and Patrick Farley, as administrator of the estate of Eliza M. y. Farley, deceased, to foreclose a mortgage given by defendant Thurston of real estate afterwards conveyed by him to defendant Terence Farley, through whom the title passed to the other defendants, successively.

Action by Alfred Eldridge against the Atlas Steamship Company, (Limited,) to recover damages for personal injuries received by plaintiff while serving as a seaman on one of defendant’s vessels. From a judgment for plaintiff entered on the verdict of a jury, and from an order denying a motion for a new trial, defendant appeals.

Action by George J. Grossman against Ephraim M. Kantrowitz, Richard. N. Walters, and Charles F. Walters, to recover possession of goods alleged to have been fraudulently purchased from various assignors of plaintiff by defendant Kantrowitz, and of which defendants Walters were alleged to be in possession. Defendant Kantrowitz did not answer the complaint. Code Civil Proe.

<p>Appeal from special term.</p> <p>Action by Johanna Sheldon against William B. Sheldon and others as executors of Edgar Sheldon, deceased. Defendants appeal from an interlocutory judgment, and from an order con firming the report of a referee appointed by such interlocutory judgment to take and state an account, and from the final judgment entered upon that report.</p> <p>Code Civil Proc. H. T. § 835, provides: “An attorney or counselor at law shall not be allowed to disclose a communication made by client to him, or his advice given thereon, in the course of his professional employment.”</p>

Motion to set aside the service of the summons in this action, brought by Laura M. Thorp against Thomas D. Adams, on the ground that the summons was served on defendant while attending as witness before a committee of the senate. From an order setting the service aside, plaintiff appeals.

<p>Wbits—Service—Privilege of Witness.</p> <p>A motion to set aside service of a summons, on the ground that such service was-made on defendant while in attendance as witness in a legislative investigation, will not be denied for loches where it is made before the time to appear and answer the summons has expired. Thorp v. Adams, ante, 479, followed.</p>

Action by Charles E. Mattlage against the New York Elevated Railroad Company and the Manhattan Railway Company, to restrain them from maintaining and operating their elevated railroad in front of plaintiff’s premises, and to recover damages caused by such maintenance and operation. From a judgment for plaintiff, rendered upon trial by the court, defendants appeal.

Exceptions from circuit court, Monroe county, Action by Mary Moeller as administratrix, etc., against H. Austin Brewster and others. A verdict was directed for defendants, and plaintiff moves for a new trial on exceptions ordered to be heard at general term in the first instance.

<p>Certiorari to review the dismissal of relator, Denis J. Mahoney, from the police force of the city of Hew York.</p>

Action by Susan Jefferson, .Jr., William Jefferson, Thomas .Jefferson, and Edwin Jefferson, against the Hew York Elevated Railroad Company, the Metropolitan Elevated Railway Company, and the Manhattan Railway Company, to restrain defendants from maintaining and operating their elevated railroad in front of plaintiffs’ premises, and for damages caused by such maintenance and operation. Code Civil Proc.

<p>1. Discovert—Examination beeore Trial.</p> <p>In an action on one of a series of notes made by defendant, and misappropriated by the agent to whom they were intrusted, defendant is entitled to an order for the examination of plaintiff before answer, for the purpose of ascertaining the facts attending the transfer of the note to plaintiff, the examination being restricted to the facts known to plaintiff, and unknown to, and necessary for the information of, defendant in answering the complaint.</p> <p>8. Same—Filins Answer.</p> <p>An objection that, since the making of the order, an answer was served by defendant cannot he considered by the general term on an appeal from an order vacating the order for the examination.</p>

Action by Archibald C. Haynes against J. Blakely Creighton. Defendant appeals from an order vacating an order for the examination of plaintiff before trial.

<p>Appeal from special term, New York county.</p>

At chambers. Action by Frederick J. Frowein, Wilhelm Frowein, Egbertus-A. Frowein, and Jacobus A. Frowein against Moses Lindheim to recover $2,495.20, alleged to have been received by defendant as agent for plaintiffs in the sale of tobacco. Defendant filed a petition for discovery and inspection of plaintiffs’ books, etc., so as to enable him to prepare his answer and counter-claim.

An action by David B. Paige and others against the mayor, aldermen, etc., of Hew York city, John A. J^ee, Abraham S. Jackson, John J. O’Brien, and Heman Clark, brought to foreclose a mechanic’s lien for labor and services furnished by plaintiffs to defendant Lee, who had a contract with the city to build a shaft on the Croton aqueduct.

<p>Appeal from circuit court, New York county.</p> <p>Action by Bebecca Gallagher and others against John McICnight and others. Erom a judgment dismissing their complaint, the plaintiffs appeal.</p>

Action by Cleon Stone against the town of Poland. There was a verdict for plaintiff for $1,000. Prom the judgment entered thereon, defendant appeals.

At chambers. Action against George Crawford and another to restrain the use of a stable adjoining plaintiff’s property. Afterwards plaintiff conveyed his premises to one P. William Nickerson, and assigned to him his cause of action against defendants.- After this conveyance and assignment to him, P. William Nickerson made a general assignment for the benefit of creditors.

<p>Contempt—Warrant of Attachment—Pinal Order.</p> <p>Code Civil Proc. N. Y. §2281, provides that, “if it is determined that the accused has committed the offense charged, * * * the court, judge, or referee must make a final order accordingly, directing that he he punished by fine or imprisonment, or both, as the nature of the case requires. A warrant of attachment must issue accordingly. ” Held that, where no final order adjudging defendant guilty of contempt appears in the record, the warrant of attachment is insufficient, and. defendant will be discharged on habeas corpus.</p>

Certiorari by Joseph C. Higgins to review his removal by the mayor, corporation counsel, and commissioner of public works, composing the board of city record, from the position of clerk to said board.

Action by Hamlin Babcock against John Stimmel to restrain the prosecution by defendant of summary proceedings brought by him to recover from plaintiff the possession of certain real property, and to compel a conveyance of the property to plaintiff. At the trial, the complaint was dismissed at the close of the evidence for plaintiff. From the judgment entered thereon, plaintiff appeals.

Action by Fercival Everitt against- the Everitt Manufacturing Company. Plaintiff having obtained a warrant of attachment against defendant’s property, Isaac F. Denzi and John IC.

' Claim by Benjamin F. Blankman against the estate of Alfred G-. McQueen, deceased, presented to John McQueen, as administrator of said estate, and referred under Rev. St. N. Y. pt.-2, c. 6,. art..2, § 36, providing for the reference of any claim so presented, “if the executor or administrator doubt the justice” of the claim.

Action by John Meredith Jones and others, creditors of Henry Van Gelder and others, who had made an assignment for benefit of their creditors to Henry J. Newton, for an accounting by him as assignee. The action was referred to John J. Sullivan, Esq., to take arid state the account. Erom an order affirming the adjustment by the clerk of the fees of the referee, the assignee appeals. Code Civil Proc.

<p>Appeal from special term, New York county.</p> <p>Claim by Sarah I. Pandjiris against the estate of Alfred <3. McQueen, deceased, presented to John McQueen, as administrator of said estate. From so much of the order confirming the report of the referee on said claim- as awarded costs, and disbursements to the claimant, the administrator appeals.</p>

Action, by Celia R. Simmons against Edward C. Hazard and others. Plaintiff obtained an order for the examination before trial of defendants Edward •C. Hazard and Lewis A. Osborn. Erom an order denying a motion to vacate the order for their examination, said defendants.appeal.

<p>Certiorari to review the decision by the board of assessors, refusing to assess the horse railroad structure in Tenth avenue, New York city, belonging to and operated by the Ninth Avenue Railróad Company, for paving Tenth avenue, including the space between and about its tracks.</p>

Appeal-from special term, New York county. Action by John R. Drake against Stewart L. Woodford. On the application of defendant, an order was made substituting Irving Grinnell and George S. Bowdoin, as executors of Moses H. Grinnell, deceased, as defendants. From this order plaintiff appealed.

Action by Andrew Langdon, Sumner W. White, and Charles R. Heneage against the New York, Lake Erie & Western Railroad Company. Defendant demurred to the complaint. From an interlocutory judgment sustaining the demurrer, plaintiffs appeal. For opinion delivered at special term, see 9 N. Y. Supp. 245.

Action by John H. Stallman and John Fulton, Jr., against Agnes L. Kimberly and Charles W. Johnson, to recover possession of certain personal property. From an order granting leave to discontinue the action on payment of the costs, and of an extra allowance of 5 per cent, on the value of the goods which it was sought to replevy, plaintiffs appeal. Code Civil Proc. FT.

Action by Riverside Bank against William H. De Wolf, Stephen H. Mapes, and John Totten. Plaintiff appeals from the judgment of a referee directing that judgment be entered against plaintiff and in favor of defendant Totten.

Action by John H. Hollander against Henry C. Hall. From an order setting aside the service of the summons in the action on defendant, plaintiff appeals.

Petition by Mary A. Beebe, for letters of guardianship upon the estate of Nettie May Brien, an infant under the age of 14 years. The father of the infant had by his will appointed the mother and another person guardians of the child, but such other person refused to act, and the mother alone qualified and acted as guardian.

<p>Appeal from circuit court, New York county.</p> <p>Action by Andrew Roseberry against.Kate M. H. Nixon. From a judgment for plaintiff entered on a verdict, defendant appeals.</p>

Action by Martha A. Ferguson and George A. Ferguson against Mary Isabella Neilson. Plaintiff’s exceptions were ordered to be heard in the first instance at the general term.

Action by James E. Eggleston against Miles Beach on an account stated. A motion by plaintiff, pending the trial of’ the cause before a referee, for leave to amend the complaint, was denied. From the order denying his motion to amend, plaintiff appeals.

Action by John E. Ackerman and John F. Rodman against the Astoria Veneer Mills & Lumber Company for breach of contracts for the sale and delivery of lumber by defendant to plaintiffs. At the trial before a jury, no exceptions were taken by plaintiffs. The verdict was for defendant. From the judgment entered thereon, plaintiffs appeal.

Petition by the Stuy vesanfr Safe-Deposit Company for a decree of the surrogate for payment out of the estate of Samuel Lyman, deceased, of two judgments recovered against Lyman in his life-time by one De Forest Fox, and by him assigned to the petitioner. The administratrix of the estate of Lyman filed a verified answér to the petition. Code Civil Proc.

Action by Enos T. Throop against the Hatcli Lithographic Company. From an order vacating a warrant of attachment obtained by plaintiff against defendant’s property, plaintiff appeals.

<p>Appeal from circuit court, Erie county.</p> <p>Action by Louise A. Springer against the Anglo-Nevada Assurance Corporation. There was a verdict for plaintiff, and from the .judgment entered thereon defendant appeals.</p>

<p>Discovert—Examination oe Books and Papers.</p> <p>In an action for the conversion of securities purchased and held by defendants for plaintiffs’ testatrix, in her life-time, an order permitting plaintiffs to inspect and take copies of all books of account of defendants from the time they commenced business is too broad, and will be restricted to such books as contained entries relating to defendants’ dealings with testatrix, or to the securities from any source received for her, and the disposition thereof.</p>

Action by Franklin Alleú'and others, as executors, etc., against Charles M. Stead, impleaded with Harry Allen. Defendant Stead appeals from an order directing the service of a bill of particulars.

<p>1. Voluntary Payment—Note Certified by Mistake.</p> <p>A note drawn in favor of and held by defendants, and payable at plaintiff’s bank, was erroneously certified by plaintiff’s paying teller. Immediate steps were taken to avoid payment of the note, but they were ineffectual, owing to the inability to-discover the holder. This was not done until the note had been returned to plaintiff, and the proceeds paid over to defendants. Meld, that plaintiff could recover back the amount of the note from defendants as money paid under a mistake, even though its teller was guilty of negligence; and it was immaterial that on previous occasions paper of the drawers had been certified without reference to the state of their account, it appearing that this had only been done with the direct authority of plaintiff’s officers.</p> <p>2. Same.</p> <p>The note had been given for goods manufactured by defendants, who proposed to prove that the goods were delivered to the drawers upon their representations that they were able to pay for them. Meld, that the exclusion of this testimony could not have injured defendants, for if it had been received it would have established no change in the relations between them and the drawers after certification of the note.</p> <p>8. Same.</p> <p>It was also proposed to be proved that statements were made by the drawers to-defendants’ agent when the note became due, concerning their ability to pay it. Meld that, while proof might properly have been received, its exclusion could not have prejudiced defendants, there being nothing to show that the delay caused by the certification had deprived them of their ability to take proceedings for the collection of their debt, or that defendants would have been able to collect the note by any proceedings they could have taken.</p> <p>4. Refusal of New Trial—Exception.</p> <p>An exception to the refusal to order a new trial is unavailing where no order is entered upon the decision.</p>

Action by the Empire Paving & Construction Company, a judgment creditor of Susan Sullivan, against said Susan Sullivan, Anne Moriarty, Thomas J. Robinson, and Thomas J. Carey; to set aside conveyances of land by the judgment debtor to the defendant Moriarty, and by the latter to the defendant Robinson. The latter alone answered the complaint.

Petitions by Matilda Myers and by Louisa Myers for allowances out of their respective shares of the income of the estate of Alfred G. Myers, deceased, heard and decided together. The executors, R. Baring Gould, John A. Rutherford, Richard King, and I. Champlin Morris, answered the petitions, and the issues thereon were referred to a referee.

Action by Thomas Cavanagh, as administrator, etc., of Jane Lingard Robinson, deceased, against the Ocean Steam Navigation Company, Limited, to recover damages for the death of said intestate. Plaintiff having served a reply to certain defenses contained in the answer, defendant made a motion to strike out denials in the reply as sham, which was denied. From the order denying this motion, defendant appeals. For prior reports, see 1 N. Y. Supp. 418, 9 N. Y. Supp. 198.

<p>Appeal from judgment entered upon the report of a referee.</p> <p>The facts are fully stated in the opinion.</p>

Action for partition by Bartholomew Fetes against Adelaide Volmer and others. From the interlocutory judgment entered therein defendant appeals.

Action by Mary A. P. Tucker against Cornelia Gilman. Judgment was recovered against defendant, and, pending an appeal, Preble Tucker took an assignment thereof. He now appeals from an order directing him to pay the costs of the action upon the rendition of a judgment against plaintiff.

A proceeding instituted by James C. Hazleton to vacate an assessment for paving Thirteenth avenue, Hew York city. From an order vacating the assessment the mayor, aldermen, etc., of the city appeal.

<p>Certiorari to review the action of the police commissioners of Mew York city in removing relator, David I. Brant, from his position as clerk in the police department.</p>

Action by James H. Tracy against Louis D. Frost as executor of John K. Mayo, deceased, on an undertaker’s bill. There was a judgment for plaintiff, amd defendant appeals.

<p>Appeal from judgment on report of referee.</p> <p>Action by William K. Clarkson against Emma Young and Peter A. Young. ■ ■There was j udgment for plaintiff, and defendants appeal.</p>

An appeal by Henry Aplingtori, as assignee of George M. D. Littell and Marion W. Littell, from that part of an order confirming the referee’s report upon his accounting which disallows $250, part of the fee paid to his counsel.

<p>Appeal from municipal court.</p> <p>Action by James C. Austin against 0. Townsend Wilson for mill supplies. There was a judgment in plaintiff’s favor, and defendant appeals.</p>

<p>1. Sale—Action fob Pbiob—Evidence.</p> <p>Evidence of the value of a suit of clothes is immaterial in an action for the price agreed on by the parties.</p> <p>8. Same—When Action Lies.</p> <p>The sale being of articles to be manufactured, an offer to deliver according to the terms of the contract is all that is necessary to enable plaintiff to maintain an action for the price, without showing an acceptance by defendant.</p>

<p>Appeal from municipal court.</p> <p>Action by Amelia B. Reynolds against Meldrum, for rent. From a judgment for plaintiff defendant appeals.</p>

Action by George Bork against Alexander Martin for conversion of money. The evidence given' upon the trial disclosed the following facts: Prior to December, 1879, Joseph Bork and David F. Day were joint owners of a parcel of land situate in the city of Buffalo, upon which the national Savings Bank held a.lien, by way of mortgage.

Action by John A. Cook against Judiah H. Matteson. From an order directing an amended answer to be made more definite and certain, defendant, appeals.

Action by George W. White against Eleanor White and others as executors-of Charles White, deceased, and Mary Beed as exécutrix of Horatio Beed, deceased. There was a judgment for defendants, and plaintiff appeals. For decision on a former appeal, see 55 5T. Y. Super. Ct. 417.

Action by Genevieve ÍT. A. Baker against Edward C. Crosby, as executor, etc., of Alfred M. Ingham, deceased, originally brought against the Mutual Life Insurance Company of 2few York, to recover the amount of a policy of life insurance issued by said company to said Ingham upon his life. Plaintiff claimed under an assignment from Ingham which defendant claimed to be invalid. There was judgment for plaintiff, and defendant appeals.

Action by George B. 3?. Hannay against Andrew Zerban. A judgment dismissing the complaint was affirmed by the general term of the city court of Hew York, (8 H. Y. Supp. 97,) and plaintiff again appeals.

An action by the mayor, aldermen, and commonalty of the city of New York to recover against Michael Finn, as principal, and Timothy Donovan and James Riley, as sureties, upon a bond given by Finn for performance of a contract for regulating and grading 141st street. From a-judgment dismissing the complaint the city appeals.

Action for separation by Addie F. Whitney against Silas G. Whitney. From an order adjudging him in contempt for failing to obey an order directing payment of alimony and counsel fee, defendant appeals. Code Civil Proc.

Action by Thomas Mortimer against Jacob Doelger and Anthony Doelger. There was a verdict for plaintiff. From the judgment entered thereon defendants appeal.

<p>Motion for judgment on verdict subject to opinion of the court.</p> <p>Action by Margaret C. Smyth against the mayor, aldermen, and commonalty of the city of New York to recover the amount of an assessment paid by plaintiff for sewers in Seventh avenue, New York city. The court directed a verdict for defendant, subject to the opinion of the court at general term.</p>

Action by Charles C. Taber and Henry M. Taber against the New York Elevated Railroad Company, to recover damages for the maintenance and operation of defendant’s elevated railway in front of plaintiffs’ property, Nos. 137, 139, and 141 Pearl street, New York city.

Action by Martin Eckhardt against Simon Epstein and Isaac L. Epstein, composing the firm of S. Epstein & Son, and John Claflin and others, composing the firm of H. B. Claflin & Co. There was judgment for plaintiff, and defendants appeal.

Action by Charles S. Hine against the Manhattan Railway Company and the New York Elevated Railroad Company, to enjoin the maintenance of defendants’ elevated railway in front of plaintiff’s premises, No. 13 Bowery, New York city, and for damages caused by its operation. There was a judgment awarding plaintiff rental damages $8,267.50, and an injunction, unless defendants paid $12,500. Defendants appeal.

<p>Appeal from trial term.</p> <p>Action by George T. Smith against the New York, New Haven & Hartford Railroad Company. There was a verdict for plaintiff for $500. From the judgment entered thereon defendant appeals.</p>

Action by Thomas Hogan, as administrator, etc., against the Central Park, North & East River Railroad Company. There was a verdict for plaintiff for $1,600. From the judgment entered thereon defendant appeals.

Action for a divorce by Josephine Stampfer against Siegmund, alias William, Stampfer. Defendant appeals from an order directing him to pay $400 to plaintiff’s counsel for his services in the prosecution of the action.

Action by Emilie Raberg Yoel against H. Bencke Lithographic Company and Herman Bencke, impleaded with others, and brought to recover the excess of insurance premiums over 1 per cent., imposed upon the tenants of a building owned by the plaintiff, and part of which was leased to the defendants.

<p>Appeal from municipal court.</p> <p>Action by Martin Bergman against Nathan Wolff, for damages for breach of contract. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from court of sessions, Alleghany county.</p> <p>Defendant, Harry Bradley, appeals from his conviction for a violation of the excise laws.</p>

Action by Mary E. Luetchford against Elizabeth Lord, impleaded with her husband, George D. Lord. There was judgment for plaintiff and defendant appeals.

Action by Charles B. Tuttle against Thomas Dennis, impleaded with one Parshall. Plaintiff appeals from a judgment reversing a judgment rendered in his favor by a justice of the peace.

<p>1. Criminal Law—Jurisdiction—Common Gambler.</p> <p>The court of oyer and terminer and the court of sessions have jurisdiction of the offense of being a common gambler in selling lottery policies under Pen. Code N. Y. 1344. Such offense is not within Code Crim. Proc. Ñ. Y. § 56, subd. 10, giving exclusive jurisdiction to courts of special sessions of the offense of selling lottery tickets.</p> <p>2. Same.</p> <p>The two classes of crimes severally defined in Pen. Code, § 344, and Code Crim. Proc. § 56, subd. 10, are entirely distinct, and a conviction under one section would be no bar to a conviction under the other section.</p>

<p>Appeal from special term, Erie county.</p> <p>Action by James H. King and another against The Union Iron Company •of Buffalo and Elisha P. Wilbur. Plaintiffs appeal from that part of the judgment by which defendant Wilbur was subrogated to the rights of the holders •of the bonds of defendant company of Buffalo, in the sum of $280,000, secured -by a first mortgage upon the company’s property, and subordinating plaintiffs’ .judgment to such lien. Defendants also appeal from so much of said , judgment as declared that a judgment procured against the company by defendant Wilbur on the 8th day of April, 1881, for the sum of $380,864.97, damages, •and costs, and the sale under such judgment, and the deed subsequently delivered in pursuance of such sale, were void, as against plaintiffs.</p>

Proceedings for the probate of the will of James Conway, deceased. There was a decree admitting the will to probate, and the contestants appeal.

Action by Hannah Mrdlinger and others, administrator and heirs of Frederick Nirdlinger, deceased, against Isaac Bernheimer and others, for an accounting of the proceeds of lands sold by said defendant Bernheimer, and for a conveyance of a portion of other lands, the title to which was alleged to have been held by him, for plaintiffs and others made defendants in the action.

Action by George O. Winchester against T. Quincy Browne. Defendant, moves to have the reply made more definite and certain. For former reports^ see 4 U. Y. Supp. 155, 6 U. Y. Supp. 913, 7 1ST. Y. Supp. 550, 8 N. Y. Supp. 82.

Action by Clemens Miller against Carles F. Rost. When the cause was called for trial, it was postponed on the ground of illness of defendant’s attorney.

Action by Frank Work against George Parish Ogden and others to foreclose a lien, in which Cyrus W. Bexford and others, holding other liens on the same property, were made parties defendant. Said defendant Bexford appeals from an order denying a motion by him for leave to serve an amended answer.

Action by Jerome Buck against W. Seward Webb, as president of the Wagner Palace-Car Company, for damages for being excluded from a seat in a drawing-room car of that company, which plaintiff alleged he had purchased. Defendant appeals from a judgment entered on the verdict of a jury for plaintiff, and from an order setting aside the verdict, and granting a new trial on •conditions.

- Action by Frederick Kleinhans against Charles L. Whiting and others for damages suffered from a defective steam-boat boiler manufactured for him by defendants, and which they agreed should be satisfactory in every respect, and should pass the government inspector’s test. The boiler was manufactured and delivered in Erie county. The plaintiff resides in Monroe county, and his steam-boat runs from Charlotte to a summer resort known as “Long Pond,” both in Monroe county.

Action by Frank Boss, as ancillary administrator, etc., of James G-. Boss, deceased, against Wallace P. Willett, Nathaniel P. Hamlen, and Horatio G. Curtis, partners, etc. The complaint is as follows: “first cause of action. “For a first cause of action, plaintiff alleges: First.

<p>Execution Against the Person—Discharge.</p> <p>A judgment debtor was taken on a body execution for $110. On an application for a discharge it appeared that the debtor’s wife had a life-estate in 125 acres of land; that the debtor lived on the land with his wife, and worked it for her, but received nothing for his services, and had no contract therefor. It also appeared that the debtor’s credit and character were good; that his petition and schedule were correct; and that he had no property not exempt from execution. Held, that the proceedings of the debtor were not “just and fair” within Code Civil Proc. N. Y. § 2208 et seq., providing for the discharge of judgment debtors imprisoned on body executions. o</p>

Action by Harry McBride and Charles F. Droste, partners, doing business as produce commission merchants, under the firm name of McBride & Co., against Patrick T. Langan, George E. De le Ree, and Joseph P. Langan, partners under the firm name of P. T. Langan & Co., for the price of goods sold and delivered by plaintiffs to defendants.

<p>Horse and Street Railroads—Injuries to Travelers.</p> <p>In an action for personal injuries alleged to have been sustained through the negligence of the driver of defendant’s horse-car, plaintiff admitted that she saw the car approaching as she stepped from the curb to cross the street, but gave no further attention to it, and only watched the car approaching in the opposite direction. The uncontradicted testimony of the driver showed that he saw plaintiff as she stepped from the curb, called to her several times, used every possible effort to stop the car, and succeeded in doing so as the horses’ heads reached plaintiff. Held, that the complaint was properly dismissed.</p>

<p>Appeal from special term.</p> <p>Action for divorce by Mary O’Keefe against William H. O’Keefe. There was judgment for plaintiff, and defendant appeals.</p>

Action by Dwight A. Foster against Clark D. Bhinehart, as sheriff of Kings county. There was a verdict for plaintiff, and from the judgment entered thereon defendant appeals.

<p>Cancellation op Deed—Fraud.</p> <p>Where a deed of real estate is obtained by the fraudulent representation of the grantee and her attorney that it was only an instrument authorizing the collection of the rents, an action to cancel the same is not defeated by the fact that the grantors did not read the deed; but relied on the professional knowledge of the attorney, and the grantee’s affection for them as their aunt.</p>

<p>Equitable Assignment.</p> <p>Plaintiff purchased goods of D., who was indebted at the time to W. and defendants. Plaintiff was ignorant of defendants’ claim, but knew of W.’s claim, and had W. join in the bill of sale, which recited that the goods purchased were “free from all claims. ” The property having been levied on under a judgment confessed by D. to defendants, plaintiff, to secure himself from the levy, paid the amount thereof to the sheriff under protest, and subsequently obtained the amount so paid from W., giving a receipt in full for all claims of every description. Held, that such payment by W. acted as an equitable assignment against plaintiff of any cause of action he might have against the sheriff.</p> <p>Appeal from jury term.</p> <p>Action by George Peyser against John 0. McCarthy and others, substituted as defendants in the place of Hugh J. Grant, sheriff, etc. There was a verdict for plaintiff for $520.92, and from the judgment entered thereon defendants appeal.</p>

An action by Emma A. Forth against the Manhattan Railway Company and The Metropolitan Elevated Railway Company to restrain defendants from the maintenance and operation of their railroad in front of plaintiff’s premises, No. 1435 Second avenue, New York city, and also to compel defendants to remove their station building.

Verdict at trial term, subject to opinion of the general term. Action by George W. McLean, as receiver of taxes in the city of New York, against Sarah L. Myers, to recover a tax. At the trial the judge directed a verdict for plaintiff, subject to the opinion of the general term.

Controversy submitted on an agreed statement of facts under Code Civil Proc. Y. Y. § 1279. Plaintiff, George T. Patterson, is one of. the beneficiaries in a certificate of membership issued by defendant, the Mutual Benefit Life Association of America, to plaintiff’s father, George T. Patterson, deceased.

Action by William S. Lalor on a promissory note for $300, made by defendant, Andrew B. Yetter, to the order of J. Howard Burnham. The note, with $300 cash, was given by defendant to Burnham, for a carpet-beating machine, and a license for using the same within the territory bounded by the North and East rivers and 52d street on the south and 62d street on the north, in the city of New York. Burnham claimed to be the sole agent of one Foster, the patentee of the machine.

Action by John M. Charnock against R. Napier Anderson. The complaint alleges a loan to defendant, November 4,1889, of $300, and that thereupon the defendant made the check of which a copy is there set out. The action is on the check, the allegation as to the loan (perhaps unnecessary) being intended to supply the consideration.

Appe al from special térm. Action by Henry F. Taylor against Eobert B. MacLea.

Action by the town of Ontario against Francis A. Hill, as supervisor of that town. At the trial, the complaint was dismissed, and plaintiff appealed from the judgment entered thereon. On argument of the appeal before two justices only, they did not agree, and a reargument was ordered.

Action by Emeline C. Fargo against John M. Fargo and others, executor and devisees and legatees of Allen Fargo, the deceased husband of plaintiff, to have an antenuptial contract between them adjudged void and of no effect.

Special proceedings instituted by William H. Cromwell to account as assignee of Henry S. Ives & Co. John C. Coombs arid others present a claim-against the assigned estate.

Special proceedings instituted by William IN. Crowell to account as assignee •of Henry S. Ives & Co. The Miners’ Savings Bank of Wilkesbarre presented .a claim for $28,875, of which $12,600 had been realized by the sale of collateral held by the bank.

<p>Practice in Civil Cases—Dismissal—Form of Action.</p> <p>A complaint demanded both, equitable relief and a legal remedy. Plaintiff did not show any right to equitable relief, but his right to a legal remedy appeared, and the facts on which a recovery at law depended were put in issue by the answer. Meld, that the supreme court sitting at special term would not dismiss the complaint, but would deny the equitable relief, and send the issues at law to the circuit for trial by jury.</p>

At chambers. Action by Emma Kennedy and others against Matilda Arthur and others for partition. The purchaser at the partition sale now moves to be relieved from her purchase. ■ '

Action by Taendsticksfabriks Aktiebolaget Vulcan against Elijah Myers and I. Harby Moses to obtain an injunction restraining the defendant? from using a box containing matches, on the ground that it infringed a lobe used by plaintiff. From a judgment dismissing its complaint the piaintii appeals.

<p>Specific Performance—Exchange of Land—Deficiency in Quantity.</p> <p>After plaintiff and defendant had entered into an agreement for an exchange of real estate it was discovered that defendant’s property was deficient in quantity. Held, that specific performance of the contract, with compensation to plaintiff for the deficiency, would not be enforced.</p>

Application on the relation of A. Bloomer Hart, as rector, and others, as church-wardens and vestry-men, of the Protestant Episcopal Church of St. Stephen, a corporation, for mandamus to James Blaekhurst, as treasurer of said church, to affix its corporate seal to a contract theretofore made with the Holy Trinity Church, also a corporation, or to allow the clerk of relator to affix the seal.

Application by James Maclaury for a peremptory writ of mandamus to require A. Bloomer Hart, as rector of the Protestant Episcopal Church of St. Stephen, a corporation, to give notice during divine service of an election of church-wardens and vestry-men. Relator alleged in the affidavit filed in support of his application that he was a member of said church, -and entitled to vote for church-wardens .and vestry-men.

Action in the nature of a quo warranta by the attorney general on the relation of James Blackhurst and others against Stephen R. Weeks and others to try defendant’s title to the offices of church-wardens and vestry-men of the Protestant Episcopal Church of St. Stephen, a corporation.

<p>Mandamus—Stay of Froceedinss.</p> <p>Where a mandamus has been granted to hold an election to fill vacancies in the offices of vestry-men of an incorporated church, and the questions decided in granting the mandamus are important and fairly debatable, proceedings under the writ will be stayed until the appeal from the mandamus order is decided by the general term; Code Civil Froc. if. Y. § 2089, providing for a stay ofproceedings under a writ of mandamus.</p>

Application by A. Bloomer Hart, as rector, and others, as church-wardens .and vestry-men, of the Protestant Episcopal Church of St. Stephen, a corporation, for a mandamus to James Blackhurst, as treasurer of said church, to -affix the corporate seal to an agreement theretofore made with the Holy Trinity Church.

Action by Richard Flatow against Theodore Yon Bremsen for slander. After the service of the complaint, which was made at the time of the arrest of the defendant, the plaintiff, without leave of court obtained therefor, served an amended complaint whereby special damages are alleged to have been sustained by reason of the utterance of the words set forth. The plaintiff contends that the amended complaint cannot be considered on this motion.

Action by Richard Flatow against Theodor Yon Br.emsen for slander. The amended complaint sets forth two causes of action. The words charged for a first cause of action are: “Flatow [meaning plaintiff] is a pimp. I don’t think much of his [meaning plaintiff’s] wife. She looked for a place as housekeeper for unmarried people. He [meaning plaintiff] don’t understand his [meaning plaintiff’s] business.

Action by Irving Grinnell and others against Boger M. Sherman. Plaintiffs, having recovered judgment against defendant, instituted supplementary proceedings. Defendant now moves to vacate an order for the examination of one Stewart L. Woodford, and also an order appointing a receiver of defendant’s property. Code Civil Proc.

Action by Emily L. Wilder against Marvin E. Clark. Plaintiff, as a judgment creditor of defendant, and as assignee of a certain fund raised for the relief of defendant by his friends, seeks to subject the fund to her judgment. The fund in question was the proceeds of a concert given by certain members of the Hew York Press Club, of which defendant, who had become blind, was a member.

Action by William C. Tebbetts and others against Morris Levy. Goods to the amount of $379 were delivered to H. Wolf & Son, on a guaranty of payment, executed in the name of the defendant as guarantor. The guaranty so executed was signed by the wife of the defendant. The trial judge dismissed the complaint on the ground that no authority to bind the defendant was shown. From the judgment entered on this dismissal, the plaintiffs appeal.

<p>Assignment on Lease—Liability on Lessee.</p> <p>A lessee continues liable upon the express covenants in the lease, though he has assigned the term, and the assignee is liable by reason of the privity of estate, and has paid rent to the landlord.</p>

The action is in trover for the conversion of two cases of goods shipped by the plaintiff at Titusville, Pa., on the New York, Lake Erie & Western Railroad, in May, 1884. The theory of the plaintiff is that after the goods arrived at New York they were placed on storage with the defendant; that he refused to give them up on tender of the proper charges. Hence the conversion.

The plaintiff was employed by a firm engaged in delivering boxes to defendant. In the course of his business, he drove a team, with a load of boxes, to defendant’s warehouse, situated on the south side of .Scott street, in Buffalo, and there delivered the boxes to the employes of defendant. The method' of delivery was for plaintiff to toss the boxes through a window, where they were caught by defendant’s inspectors, and, if satisfactory, accepted.

Action by Sophia Oldenburg and others, administrators, etc., of Charles Oldenburg, deceased, against the Hew York Central & Hudson River Railroad Company, for negligently causing the death of said Charles Oldenburg. There was a verdict for plaintiff for $2,500, and defendant’s motion for a new trial was denied. For the opinion of Beckwith, C. J., in denying the motion, see 9 H. Y. Supp. 420.

Action by John Elliott against the New York Central & Hudson River Railroad Company for personal injuries alleged to have been received by negligence on the part of defendant. From a judgment for plaintiff entered on the verdict of a jury, and from an order denying a motion by defendant for ■a new trial, defendant appeals.

Action by Samuel Tucker, as administrator of the estate of George James Tucker, deceased, against the Hew York Central & Hudson River Railroad Company. From a judgment for plaintiff entered on the verdict of a jury, defendant appeals.

Action by Betsey Sully against Henry Schmidt for rent under a lease. At the trial the jury found a verdict for defendant.

Action by Edwin B. Meeks, as surviving executor and trustee under the last will and testament of Joseph W. Meeks, against the Metropolitan Elevated Kailway Company and the Manhattan Kailway Company, to enjoin the further construction, maintenance, and operation of their elevated railroad along and to the west of plaintiffs premises, No. 30 Vesey street, New York city, and to.recover damages for property and rights of property taken.

Ejectment by Edward Roberts against August Baumgarten and others. The cause was tried by the court, a jury having been waived, and judgment was given for plaintiff. Defendants appealed to the general term, where the-judgment was reversed, (51 R. Y. Super.

Action by Mary Marshall against the Women’s Mutual Insurance & Accident Company of North America. The complaint was dismissed upon the ground that the certificate sued upon had been forfeited for non-payment of assessments. From the judgment entered upon the dismissal, the plaintiff appeals.

: Action by Emanuel Arnstein against Ellen A. Haulenbeek on an account stated for goods sold and delivered. The jury found a verdict for plaintiff, and a motion by defendant for a new trial was denied. From a judgment entered on the verdict, and the order denying a new trial, defendant appealed to the general term of the city court, which affirmed the judgment and order, and from that judgment plaintiff appeals.

<p>Application for leave tq appeal to the court of appeals from a judgment affirming a judgment of a district court. For the decision on the appeal, see <mte, 69.</p>

Action by George Geoghegan against James Kelly for compensation agreed on for plaintiff’s services as broker in negotiating a sale of defendant’s stock of goods and fixtures.

<p>Action by Herman Seidman against Agnes Geib and others to foreclose a purchase-money mortgage given by said defendant to plaintiff.</p>

Action by Elizabeth Levin against the Standard Fashion Company for breach of a contract for employment of plaintiff by defendant. At the trial the jury found a verdict for plaintiff, and a motion by defendant for a new trial was denied. Plaintiff also moved for a new trial, on the ground of insufficiency of damages, and this was also denied.

<p>Appeal from ninth district court.</p> <p>Action by James Began against Adolph Luthy for damages to plaintiff’s Bouse leased to defendant. From a judgment for plaintiff defendant appeals.</p>

<p>Motion to vacate a judgment on a forfeited recognizance against Daniel Lavery and Thomas Hayden.</p>

<p>Bail—Judgment on Fobeeitbd Recognizance—Vacation.</p> <p>An application to vacate a judgment on a forfeited recognizance cannot be granted unless compliance with Laws N. Y. 1882, c. 410, $ 14S2, by payment of the expenses, if anyj of the apprehension or recapture of the prisoner, is shown.</p>

<p>Appeal—Practice—Rehearing.</p> <p>A motion for reargument of an appeal must be denied where the grounds for reversal urged received due consideration in the decision, and none of the grounds for which a rehearing is allowed, under the rules of the court, are shown.</p>

Action by Louis Roeding against the Sons of Moses, an incorporated benevolent society, to recover a sum of money alleged to be payable by the society on the death of one Michael 0. Ash, one of its members, assigned by the widow of said Ash to plaintiff. From a judgment for plaintiff, defendant appeals.

<p>1. Powers of Agents—Apparent Authority.</p> <p>Plaintiff, on an invitation received in reply to Ms answer to an advertisement,. seeking employment, went to the office of defendant, a foreign corporation, and was referred by defendant’s manager to one M., who drew up a written application-for the employment of plaintiff, to be sent for approval to defendant’s home office, which plaintiff signed; and M. engaged him in the mean time at a weekly salary, and demanded and received from him a deposit of money as security for the faithful discharge of his duty. The application was not sent to or approved by the home-office. Meld, that it was no defense to an action by plaintiff, to recover such deposit and salary, that the manager had authority only to receive applications for-employment, and to employ applicants after they were approved by the company, plaintiff having no knowledge of this limitation of the manager’s authority, as his-apparent authority was general.</p> <p>2. Same—Proof of Agency.</p> <p>In an action against a corporation on a contract alleged to have been made with plaintiff by H. on behalf of defendant as its manager, H. was called as a witness by-defendant to show the course of business, the restrictions on his authority, etc.,, and testified that he was manager of the company; and this was not contradicted.. Meld, that the evidence established his agency.</p>

Action by Frederick D. Blake against Carl Voight, John T. Hand, and Augustus J. Rolle, for commissions for procuring consignments of goods to defendants. The jury found a verdict for plaintiff, and a motion by defendants for a new trial was denied.

<p>Contempt—In Supplementary Proceedings—Kelease from: Imprisonment.</p> <p>Code Civil Proc. N. Y. § 3386, providing that where a defendant imprisoned for contempt in supplementary proceedings, as prescribed in section 3457, is unable to endure the imprisonment, or pay the sum, or perform the act or duty required, the court may, in its discretion, and on such terms as justice requires, order him to be discharged from imprisonment, is the only authority for releasing a person so imprisoned, and a motion to be admitted to bail pending an appeal from the order of commitment will be denied. The application for relief must he made under said section 3386.</p>

<p>1. Lease—Parol Evidence.</p> <p>An oral agreement by a landlord, as a consideration for the hiring by the tenant, to put the premises in thorough repair before the commencement of the term, is collateral to the lease, and proof of it is not objectionable as modifying or varying the written lease.</p> <p>■2. Same—Damages—Breach or Contract.</p> <p>On the question of damages to a tenant from the breach of an agreement by the landlord to put the premises in repair before the commencement of the term, evidence of the amount paid by the tenant for rooms and meals at an hotel while the d emised premises remained untenantable by reason of the making of the repairs during the term, is not admissible.</p>

Action by Sheridan Shook and James Everard against James D. Lyon for money had and received. From a judgment for plaintiffs defendant appeals.

Action by Margaret A. Case against the Phoenix Bridge Company to recover.

Exceptions taken at a jury term, ordered to be heard in the first instance at. the general term. Action of ejectment by Clara Isabelle Curtis and others, children of Clarissa. E. Curtis, against Ann Murphy and others. The land for which the action was brought was held in fee, in 1885, by one Wagstaff, who conveyed to one Diamond, taking from the latter a purchase-money mortgage.

Action by Charles Zust against Julia T. Smithiemer. Plaintiff appeals from a judgment for'defendant, entered on the verdict of a jury, and from two orders denying motions by him for a new trial.

Exceptions from jury term. Action by the Oceanic Steam Navigation Company, Limited, against the Compañía Transatlántica Española. At the trial, on the close of the evidence on both sides, the complaint was dismissed, and plaintiff’s exceptions were ordered to be heard at the general term.

Action by William H. Clark against Albert Anderson for libel. From a judgment on a verdict for defendant directed by the court, plaintiff appeals.

Action by Louis M. Kimball against the Farmers’ & Mechanics’ Bank of Buffalo. The evidence is not returned, and the conceded facts appear in the referee’s findings of fact. From them it appears that Sarah E. Kims, on April 16, 1873, was indebted to plaintiff, upon a promissory note, in the sum of $8,000, payable, with interest, 90 days from its date. That said Kims was the owner of a schooner named George D. Bussell.

Action by Henry B. Sire against George W. Rumbold and others for rent ■under a lease. The jury found a verdict for defendants. From the judgment for defendants entered thereon, plaintiff appeals.

<p>Appeal from trial term.</p> <p>Action by James J. Murray against the J. J. Hichols Manufacturing •Company, a corporation, for goods sold and delivered. The jury found a verdict for plaintiff. From the judgment for plaintiff entered on the verdict, defendant appeals.</p>

Action by Guiseppe Fusco against Angelo Adam. Defendant moves to vacate a judgment entered against him for alleged failure to answer. Code •Civil Proc. H. Y. § 528, is as follows: “The remedy for a defective verifiea-tion of a pleading is to treat the same as an unverified pleading.

Action by Peter J. O’Connor against Bernhard Schaeffel to foreclose a mechanic’s lien on defendant’s leasehold interest in certain premises. Plaintiff purchased at the sale under the decree of foreclosure, and received the referee’s deed. Defendant having refused to surrender possession, plaintiff now asks for a writ of assistance.

Action by George W. Eurguson against the United States Land & Investment Company on a bond and past-due interest coupons attached thereto. There was a verdict in plaintiff’s favor and from a judgment thereon defend•ant appeals.

Action by John FT. Smith against David C. Reid to remove a cloud from the title to real estate held by plaintiff. From a judgment for defendant plaintiff appeals.

Action by Charles C. Kirchner against the George C. Flint Company, a corporation. From a judgment for plaintiff, and an order denying defendant’s motion for a new trial, defendant appeals.

<p>Nonsuit—Injuries to Passengers—Question eor Jury.</p> <p>Plaintiff, who was a passenger in defendant’s open horse-car, sitting in the outside seat, was injured by a kick from a horse going in the same direction as the car. In an action against the railroad company for damages therefor, he testified that the car approached a pair of horses on the track, on one of which a man was riding, and leading the other; that the man commenced to get them out of the way, but the driver of the car ran the car against the legs of the led horse, so that the front and end of the step at the side of the car struck the horse, which then kicked plaintiff on the knee. His testimony was contradicted by all the other witnesses, seven in number; but, of these, two were the driver and conductor of the car, and the testimony of the others was not positive, and, in some particulars, not consistent. Held, that a dismissal of the complaint was improper, as the question of the improbability of plaintiff’s testimony was for the jury.</p>

Action by Otto Kelsey, administrator of George M. Bloodgood, against El. H. Cooley and others, to set aside the discharge of a mortgage, and to declare a trust. The complaint was dismissed, and plaintiff appeals.

Action by Catharine Fagan against Charles J. Fagan. From a judgment entered upon the report.of a referee dismissing the complaint, plaintiff appeals.

Action by Fielding L. Williams against Lucy E. Williams, as administratrix o£ David W. Williams, deceased.

Action by Mary A. E. Whitner against Emil M. Perhacs. The complaint was as follows: “Plaintiff complains and says that she purchased from defendant sixty-six and one-third shares of the capital stock of the New England Biscuit Bakery of New York of the par value of $6,666.66, being one-third of the capital stock of said company.

<p>1. Pleading—Effect of Demurrer—First Fault.</p> <p>On a demurrer by defendant to plaintiff’s reply to a counter-claim, the court will inspect the whole record, and give judgment for defendant, where it appears that the complaint is insufficient, though the reply is sufficient,, and the counter-claim is not.</p> <p>8. Specific Performance—Pleading.</p> <p>In an action by the assignee of a contract for the sale of stock against the purchaser for specific performance, the complaint alleged that plaintiff’s assignor was ready and willing to deliver the stock on payment by defendant to plaintiff of the sum due. The .stock which was the subject of the action had not been assigned to plaintiff, and was not in his possession. Held, that the complaint was insufficient.</p>

<p>Appeal from a judgment entered upon the report of a referee.</p> <p>Action by John Dobson and another against Lucius B. Warner. There was judgment for plaintiffs, and defendant appeals.</p>

An action by the village of Corning to enjoin defendant the Rector, ChurchWardens, and Vestrymen of Christ Church of Corning from building a church upon block Ho. 66 of the lands of the village, known as a public park. There was judgment for plaintiffs, and defendants appeal.

An appeal from that part of an order dismissing a proceeding herein which charged Peter Garlock, one of the executors, personally, with the disbursements of the proceeding. For proceedings to construe the will, see 5 H. V. Supp. 737.

At chambers. Action by Anne Fagan as administratrix, etc., against W. E. Strong, to recover damages for the death of plaintiff’s intestate, (her son.) The death was caused by intestate’s being struck by a beam of defendant’s carriage-shed while driving a load of funiture which he was moving for defendant under the shed. Defendant moves that plaintiff be required to give security for costs. For opinion on demurrer, see 7 N. Y. Supp. 919.

At chambers. Action by the Columbus, Hocking Valley & Toledo Railroad Company against John W. Ellis, Charles Lauier, Edward Winslow, Daniel B..

Action by Jonathan E. Van Doren against Eajbush Liebman, Louis H. Perlman, and Levi S. Manson, for advertising by plaintiff on written orders from defendants under their co-partnership name of “The United States Newspaper Advertising Agency. ” At the trial, it was conceded that the defendants Perlman and Manson were liable therefor, and that defendant Liebman was also liable with them for a part of the advertising, ordered before November 1, 1889; but he disputed his…

Action by Isabelle Smith against Semon Dittman and Henry Strahlheim for personal injuries to plaintiff by the negligence of defendants. The jury found a verdict for plaintiff for $1,000. Plaintiff moved for a new trial for inadequacy of damages, and on other grounds. The motion was denied, and plaintiff appeals from the judgment and the order denying her motion for a new trial.

Morris Schrier and others sued the Firemen’s Insurance Company of Baltimore, a foreign corporation, in the city court of Hew York. The summons was served on the superintendent at his office in Albany. Defendant moved to set aside the service, which motion was denied by McAdam, C. J., on September 24, 1890. Defendant now asks for a writ of prohibition to the justices of the city court. Code Civil Proc.

Code Civil Proc. N. Y. § 316, is as follows: “The jurisdiction conferred by the last section is subject to the following limitations and regulations: (1) In an action w'herein the complaint demands judgment for a sum of money only, the sum; for which judgment is rendered in favor of the plaintiff, cannot exceed two thousand dollars, exclusive of interest, and costs as taxed, except where it is brought upon a bond or undertaking given in an action or special proceeding in the…

Action by Charles Bab against Moritz J. Hirschbein for brokerage. There was a verdict for plaintiff, and from a judgment thereon defendant appeals.

<p>1. Pleading—Election.</p> <p>Where, in an action for work done on defendant’s house, plaintiff alleged both the price agreed on and the reasonable value, he should not be compelled to elect; there was nothing inconsistent in the two claims.</p> <p>2. Evidence—Relevancy.</p> <p>In an action for work done on defendant’s house, testimony that defendant’s or-. chitect was bis agent in respect of other work done on the.house is competent to show agency of the architect in respect of the work done by plaintiff.</p> <p>3. Appeal—Review—Harmless Error.</p> <p>Exclusion of questions to a witness is not ground for reversal where they were - subsequently put and answered without objection.</p>

Action by Frank McGourty against John Curran and Robert T. Mills for personal injuries to plaintiff while in the employ of defendants, helping to unload broken stone from a scow. The rope with which he was hauling the stone, raised from the scow by a derrick to railroad cars, broke, causing him to fall from a car backward on a heap of stone, whereby he was injured.

, Action by Max Merz against the city of Brooklyn for injuries to the'person of plaintiff, alleged to have been caused by the defective and dangerous condition of a public street in that city. Defendant demurred to the complaint, and the demurrer was'sustained, and judgment for defendant rendered thereon. Brom the judgment, plaintiff appeals.

Petition by the board of education of the city of Brooklyn to acquire title to certain land for the enlargement of the site of a public school in that city. On a discontinuance of the proceeding, an order was entered awarding costs to one of the respondents, Edwin H. Crampton, from which the petitioner appealed to the general term, which affirmed the order; and on such affirmance, a judgment in favor of said respondent was entered on his motion.

Action by Thomas McMechan against William H.’Baker for foreclosure of a mechanic’s lien.

Application on the relation of the New York Under-Ground Railway Company for a mandamus to John Newton, commissioner of public works, and D. Lowber Smith, deputy commissioner of public works, of the city of New York, requiring the issue of a permit to the relator to make openings in the streets of the city to construct an under-ground railway therein.

<p>Voluntary Payment—Assessments for Public Improvements.</p> <p>Plaintifl paid an assessment for public improvement without knowledge of the invalidity of the assessment, that fact not appearing on the face of the assessment. The payment was made because a trust company refused to make a loan on plaintiff's property until the assessment was paid. Yield not a voluntary payment, and the amount might he recovered from the city.</p>

<p>Wills—Legacy Charged on Devised Land—Lapse op Legacy.</p> <p>Where a legacy, which is charged on land devised by a preceding clause of the will, lapses by the death of the legatee during the life-time of the testator, the devisee takes the land free from the charge of the legacy.</p>

On motion by Mrs. Shedd, widow of James P. Shedd, deceased, to compel the executor of said deceased to set apart as her exemption the property provided for in Rev. St. H. Y. (8th Ed.) p. 2557, § 9.

Action in a justice’s court by Francela A. Horning against David Smith, J r. Judgment was rendered for defendant, and plaintiff appealed to the county court on questions of law, and did not demand a new trial. The county court reversed the justice’s judgment, with costs. Defendant (respondent) now moves for a new taxation of costs.

An appeal from an order denying defendant’s motion to set aside an order in supplementary proceedings, and an order appointing a receiver in sucli proceedings. The judgment against the defendant upon which these proceedings were based was in the supreme court, and entered in the office of the clerk of Tompkins county. The defendant was a resident of that county. Execution was issued upon such judgment to the sheriff of that county, and no other.

Action by James M. Horton against William H. Childs to foreclose a mortgage. Defendant moves that the amount of the bond to be given by him to- stay execution pending on appeal from the order of sale be fixed.

At chambers. Action by Martin J. Ward against Joseph Gillies to recover broker’s commission-. The complaint was served by mail on March 2, 1890, and the answer thereto was duly served by mail on May 2, 1890. Thirty-five days after the service of the answer, (June 6, 1890,') defendant served an amended answer by mail. The amended answer was returned on the ground that service thereof was not had within the proper time.

Action by James Moore against James U. Robertson and William H. Cotterill to rescind a sale of certain corporate stock, and to follow the money into the hands of the receiver of the company.

<p>Reformation of Contract—Assignment of Insurance Policy.</p> <p>In an action to reform an absolute assignment of two insurance policies, in one of which plaintiff’s testatrix was the beneficiary, so as to make it a collateral one only, the evidence showed that the assignee was the agent who issued the policies; that he had paid the premiums for three years, and held the policies as collateral security for the repayment of these advances; that he declined to make further advances,’ and insisted upon payment, but eventually agreed to take the policies for $500, and to apply the amount on the indebtedness to him. It also appeared that testatrix had executed a separate and absolute assignment of the policy in which she was named as beneficiary. Held, that the complaint was properly dismissed.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Cornelia P. Hotchkins against Augustus Martin and Thomas Adams. Defendants appeal.</p>

<p>1. Charities—Amount of Bequest—Half of Estate.</p> <p>A bequest oí money to each of the pastors of certain churches, to pay for masses to he said in said churches, for the repose of testatrix’s soul, and the souls of some of her relatives, is not within La-ws -N. Y. 1860, c. 360, which provides that no person having certain relatives living shall devise or bequeath to any religious corporation more than half of his estate, the bequest being to the priest in each case, and not to the religious corporation.</p> <p>3. Executors and Administrators—Accounting—Supreme Court.</p> <p>Where a will is construed in an action brought in the supreme court for that purpose, the executor will not be required to account in the supreme court when proceedings for an accounting are pending in the surrogate’s court.</p>

This action was brought by the First National Bank of Jersey City against Orren G. Staples and John F. Walton, to recover upon three promissory notes made by the firm of Howard & Underhill. The claim of the plaintiff, who appeals, was that respondents were copartners with James H. Howard and Clayton E. Underhill, and were members of the firm of Howard & Underhill. This was denied.

Action by Simeon Hill against William McDonald, as trustee of the estate of John I. Birdsall, Estella B. Clark, and Ella A. Overstreet. From a judgment dismissing his complaint, the plaintiff appeals.

<p>1. Trust—For Support op Grantor—Invalidity.</p> <p>B. conveyed all his property, real and personal, in trust, to sell so much as should be necessary to pay his debts, and to manage or sell the residue of the lands, and, during the lives of himself and his wife, to dispose of the interest on the proceeds of the whole estate by first paying B. an amount sufficient to maintain him, ahd by dividing the remainder between his wife and daughter. When the daughter attained the age of 21, one-third of the estate was to become hers, and, on the "death of either B. or his wife, another third was to go to the daughter, who was to have the entire estate on the death of B. and his wife. Held, in a creditor’s action to set aside the deed, that, so far as the deed provided for the support of B., it was void, under 2 Rev. St. N. T. p. 135,‘S 1, which declares that deeds of gift or conveyances, and transfers of goods, chattels, or things in action, made in trust for the use of the person making the same, shall be void as against creditors; that, as to the trusts for the benefit of B.’s wife and daughter, the deed was valid and effectual; and that the fact that, at the time of the execution of the deed, B.’s wife made a similar deed for the same purposes and trusts, or that the deed contained other trusts which were valid, did not relieve the deed in question from the operation of the statute.</p> <p>2. Creditors’ Bill—Setting Aside Conveyance—Judgment.</p> <p>Where it appears that the property in the hands of the trustee was personal property which originally belonged to B., who was still living, the income could be reached by plaintiff under Code Civil Proc. N. Y. § 1873, providing that the final judgment in a judgment creditor’s action must provide for the satisfaction of the sum due plaintiff out of any money, thing in action, or other personal property belonging to or held in trust for the debtor, which is discovered in the action.</p> <p>3. Pleading—Prayer for Relief—Effect of Answer.</p> <p>Where an answer has been interposed, it is error to dismiss a complaint because too much relief is prayed for.</p>

Action by Jerome W. Staring against the Western Union Telegraph Company. There was a verdict for plaintiff, and, from the judgment entered thereon in his favor for $9,237.19, defendant appeals.

Action by the Metropolitan Elevated Railway Company against Charles Duggin, John D. Slaybaek, and five others, for a fraudulent issue of notes of the plaintiff corporation by defendants while officers of said corporation. Defendants demurred to the complaint, and the special term rendered judgment in their favor. From that judgment plaintiff appealed to the general term, which affirmed the judgment of the special term.

Action brought by leave of court in the name of the people of the state of New York to dissolve a corporation, organized under the laws of the state,, under the name of Mark Mayer, against said corporation and Louis Auerbach, Dessa Mayer, and Charles Kaufman.

Case submitted on agreed statement, under Code Civil Proc. ST. Y. §§ 1279» 1280, wherein Timothy Dasev is plaintiff, and William 1. Skinner and others, water commissioners for the village of Little Fails, are defendants.

<p>Case submitted on agreed statement wherein Timothy Dasey was plaintiff, and William Skinner and others, water commissioners oí the village oí Little Falls, were defendants.</p>

At chambers. Action by Spencer 0. Platt and Susan P. Platt, his wife, against Maria R. Withington and others, to determine the title to certain real estate under the will of George W. Platt, deceased, and for partition. The court held that decedent was intestate as to the real estate in question. Defendant Mrs. Withington appealed to the general term, which affirmed the judgment. 47 Hun, 558.

Plaintiff village sued defendant, Charles A. Markham, in a justice’s court, to recover three penalties of $10 each, alleged to have been incurred by the-' defendant because that, on three different days, he peddled meat in the village of Ballston Spa, without having obtained a-license therefor. Plaintiff is-incorporated under the general act for the incorporation of villages; (Chap-1 ter 291, Laws 1870,) and the acts amendatory thereof.

Appeals from court of sessions, Saratoga county. These are appeals from judgments sustaining the demurrer to two indictments and discharging the defendant.

Action by the Waterloo Woolen Manufacturing Company against JamesShanahan, individually, and as superintendent of public works of the state of Hew York, and William L. Sweet, Justin B. H. Mongin, George Cook, William Fuller, and William Albaugh. There was a decree for plaintiff, and defendants appeal. Const.

<p>Elections and Voters—Certificate of Nomination.</p> <p>Laws N. Y. 1890, c. 262, § 5, provides that a certificate of nomination shall he signed by at least 250 voters when the nomination is for an office to be filled by the voters of a district less than the state, greater than the county, or by the voters of a county or city; and further provides that “when the nomination is for an office to be filled wholly or in part by the voters of only a portion of said city and county of New York, or the said county of Kings, or the said city of Brooklyn, less than the whole, such number'shall not be less than one hundred. ” Held, that a certificate of nomination for the fourteenth congressional district comprising all of Westchester county, and the twenty-fourth assembly district of New York city, need he signed by only 100 voters.</p>

Action by Frederick R. Farwell and another against Lucien J. Prescott. The action was brought to recover the possession of flour worth $64.50, alleged to be the property of the plaintiffs, and wrongfully detained by the defendant. Prior to October 29, 1889, Ellis J. McIntosh was keeping a grocery store in Canton, N. Y. He was insolvent, and knew it. He owed the defendant $1,500 upon a note due October 15th previously.

Action by Daniel Terwilliger against Sarah F. Beecher and Joseph Beecher to foreclose a mortgage. Appeal horn a judgment entered in Ulster county upon the decision of the court upon a trial by the court without a jury.

Action for an injunction brought by Bridget Jordan against Mary Donnelly and another. Defendant Donnelly appeals from1 an order appointing a referee to ascertain the damages sustained by her by reason of an ex parte preliminary injunction, which restrained her from suffering rain-water to be discharged from a roof upon her premises upon the premises of plaintiff.

Action by Jesse Billings against the Fitchburgh Railroad Company to remover for the negligent burning by defendant of buildings situate near its railway and belonging to plaintiff. There was a verdict for plaintiff for$750. From the judgment entered thereon defendant appeals.

At chambers. Application by James A. Cowie for writ of mandamus, to compel the county clerk to recognize him as the regular Republican nominee for assembly.

Action by Murray N. Ralph against Lorenzo D. Eldredge and George W. Seymour to recover on a bond executed by defendants. From a judgment dismissing his complaint, the plaintiff appeals.

<p>Certiorari to review the action of the police commissioners of the village ■of Greenbush in dismissing relator, George W. Van Hise, from his office of chief of police of said village. See 10 N. Y. Supp. 948, mem.</p>

<p>Husband and Wife—Liability of Wife—Board Furnished.</p> <p>In an action against a married woman for board furnished herself and husband, there was evidence that the contract for the board was made by the husband, and that, after the board bill was in arrears, defendant stated to plaintiff that she would pay it or see it paid, and that plaintiff should have his pay when her house and lot were sold. The husband paid the amount then in arrears, and plaintiff continued to board them, as he testified, on the credit of defendant, but he admitted there was no further contract. Held, that defendant was not liable.</p>

Two actions respectively brought by Edward A. Durant, Jr., and Hiram-Miller against Henry E. Pierson, as survivor of the firm of Henry R. Pierson & Son, a firm composed of himself and Henry E. Pierson, deceased, and Robert C. Pruyn, as assignee of Henry E. Pierson, as survivor of the firm of Henry B. Pierson & Son. There was judgment for the plaintiffs in both actions, and defendants appeal therefrom.

<p>Elections and Voters—Certificate of Nomination—Independent Ballots.</p> <p>Laws N. Y. 1890, c. 262, § 5, relating to independent nominations, provides that a certificate of such nomination may designate and appoint on its face one or more persons, who, for the purposes set forth in section 17, shall represent the signers of such certificate. Section 17, relating to the ballots, provides that no name of any candidate shall be placed on a ticket put in nomination by certificate, as provided for in section 5, except the name designated in said certificate of nomination, “without the written approval of the person or persons designated and appointed in said certificates, as provided in that section. ” Said section, after further prescribing that there shall be as many separate kinds of ballots as there are political parties and independent candidates in whose behalf certificates of nomination have been duly filed, provides that “there shall also be as many different kinds of ballots as may be required to comply with the directions hereinbefore authorized of the person or persons designated and appointed, as provided in section 5 of this act, upon the certificate of nomination. ” Meld, that the persons so designated and appointed on the certificate could choose associates to be put on the ticket with the independent candidate out of the entire list of nominees for the other offices.</p>

<p>At chambers. Application by August C. Schwager for writ of mandamus against Charles P. McLean and others, police commissioners.</p>

An appeal from an order overruling a demurrer to the traverse of actions to writs of habeas corpus and certiorari, and discharging relators Annie Brown and Delina Brown from the custody of the New York Juvenile Asylum. Pen.

Action by Bound Lake Association against Bradford D. Kellogg. Defendant appeals from an injunction restraining him, pending the action, from offering merchandise for sale at Bound Lake without a purchased permit from plaintiff.

<p>Assumpsit—Special Contract—Quantum Meruit. ,</p> <p>The evidence relied on to establish a special contract by P. to erect an hotel for defendant was that of a witness who testified that, about the time P. commenced work, witness heard him say to defendant that he was going to build him an hotel upon the same plan, but larger than one P. had previously built for defendant, and that shortly before P. quit work he told defendant, in the presence of witness, that he had received more money then he thought he had, and. would not ask any more until the contract was done. The receipts for the advances to P. all acknowledged the receipt of money to apply “on contract, ” with one exception, which purported to be for extra work beyond the contract. Held, that a finding that there was a special contract would not be disturbed, and that an abandonment of the work by P., without reason, before the contract was completed, was a breach of the contract, which precluded a recovery for any unpaid balance.</p>

Action by Bound Lake Association against Bradford D. Kellogg. Plaintiff appeals from a judgment directed to be entered in favor of defendant after a trial by jury, and also from an order of the trial judge refusing to set aside the verdict and direct judgment for plaintiff.

Action by the First National Bank of Carthage against George E. Tost. Plaintiff appeals from a judgment dismissing its complaint, after a trial before the court without a jury.

Action by Daniel B. Wood against the city of Watertown and others. There was a verdict for plaintiff, and from the judgment entered thereon defendant city appeals.

• Appeal from special term, Oswego county. Action by John Johnson against Louisa 0. Snell, and Gilbert E. Parsons, as •executor of Hiram Snell, deceased.

<p>Express Companies—Liability as Warehousemen—Delivery, oe Goods.</p> <p>In an action against an express company for the value of a trunk which had been misdelivered, plaintiff testified that, when the trunk reached its destination, the company’s agent agreed that plaintiff might take some things out of the trunk, and leave it in the office for a day or so, upon paying the charges and signing a receipt, and that, upon calling for the trunk, he was informed that it had been delivered to other parties upon the supposition that he had sent for it. The agent testified that he had no authority to make such an arrangement, but did not say that he so notified plaintiff. Held, that there had not been a complete delivery of the trunk to plaintiff, and that the question of defendant’s liability as a warehouseman should have been submitted to the jury, for, if the arrangement was made before payment of the charges and signing of the receipt, with a view to giving plaintiff reasonable opportunity of sending for his goods, it was a matter within the apparent scope of the agent’s authority, and would bind the company in the absence of any notice to plaintiff of any restriction on the agent’s authority.</p>

Action by the Phenix National 'Bank against A. B. Cleveland Company, Limited, Conrad N. Jordan, Peter W. Gallaudet and George M. Hard, impleaded with others. Defendants demurred to the complaint on the grounds (1) that it did not state facts sufficient to constitute a cause of action; (2) that there was a defect of parties defendant.

Action by Caroline B. Nichols, as administratrix, etc., of Lettitia Morrow, deceased, against Josiah B. Morrow, Mary W. Morrow, John C. Morrow, and Jennie F. Morrow. There was judgment for plaintiff, and defendants appeal.

<p>Appeal from fourth district court.</p> <p>Action by Samuel Lawrence against Eugene Everett. From a judgment for plaintiff, defendant appeals.</p>

Summary proceeding brought by Ellen Carter to remove Mary Anderson and William Anderson from a liquor store, known as Ho. 1430 Third avenue, in the city of Hew York. From a final order awarding plaintiff the possession of the premises, defendants appeal. Code Civil Proc.

Action by Clark R. Griggs against Melville C. Day and another, as executors of Cornelius K. Garrison, deceased, for an accounting of transactions between plaintiff and said Garrison.

<p>Legacy Tax—Taxable Value—Deduction.</p> <p>Under Laws N. X. 1887, c. 713, § 1, declaring that all property which shall pass by will shall be subject to a tax, “provided that an estate which may be valued at a less sum than $500 shall not be subject to such duty or tax,” all taxable legacies are exempt from taxation to the extent of $500.</p>

<p>W ills—Mutilation—Evidence.</p> <p>The paper offered for prohate was found among the private papers of decedent. It then showed that the bottom of the first page had been cut off. The cutting was ragged and uneven, and there was no concealment of the fact that something had been written on the following line. The paper was so folded that the subscribing witnesses could not say that it had been mutilated since its execution. The first page ended with a perfect sentence, and the second page began with one. Meld, that the cutting was done before the will was executed.</p>

<p>Surrogate’s Court—Jurisdiction—Contract to Make Will.</p> <p>Where a testator makes a will in pursuance of a contract to do so, and after-wards makes another will revoking the first, the later paper will be admitted to probate, since the surrogate’s court has no jurisdiction to deal with contracts. The remedy of the beneficiaries under the first will is by suit in equity.</p>

Proceedings for the judicial settlement of the accounts of William Lang and Celia A. Howell, as executors of the will of Eliza Stringer, deceased. Mrs. Stringer was a widow, and in delicate health. She lived' in a house which she owned in the town of Mamaroneek with a servant girl and one Frank Coles, a nephew of William Lang, whom she had brought up. Young Coles being about to leave her, she sent him to get his uncle to come to see her.

Proceedings for the judicial settlement of the estate-of Isaac Hoyt, deceased. Testator had two children, Hattie L. Hoyt, who was unmarried, and Annie A. Conklin, who was married, and had children. Both of testator’s daughters survived him. Testator’s real estate consisted of a house and lot and a farm. He gave the rents and profits of the house and lot to his daughter Hattie for life.

<p>Principad and Agent—Authority oe Agent.</p> <p>Where plaintiff washed defendant’s towels under an employment by one assuming to act as defendant’s a^ent, but whose authority he denied, defendant’s liability depends on the authority of the alleged agent; and in an action for the services it is error to charge that the use of the towels made defendant liable.</p>

This is an appeal from a decree establishing and allowing a claim of Jacob H. Snyder against Peter D. Hearman, deceased, in a proceeding to sell the real estate of the deceased for the payment of his debts. The devisees interested in the real estate appeal.

Indictment charging Owen H. Loftus with having committed rape, in the town of'Windsor, Broome county, on the 31st day of January, 1886, upon one Mary A. Madden, she being a female, not the wife of defendant, of the age of 23 years at the time. Defendant was called as a witness, and under oath testified that he was not guilty of the offense charged.

Action by Walter Walls against Thomas D. Coleman & Co., originally commenced in the Albany city court to recover $10, balance of wages for services rendered to defendants. Defendants claimed that plaintiff forfeited this sum under his agreement that $1 per week be retained from his wages, the same to be forfeited if he left before the close of the malting season, a period of 40 weeks, and that plaintiff voluntarily left them before the expiration of the season.

<p>1. Municipal Corporations—Defective Bridges.</p> <p>While engaged, in conversation on the sidewalk.of a bridge in defendant city, plaintiff leaned against the railing, which gave way, and threw her into the river. Held, in an action for the injuries thereby sustained, that it was error to order a nonsuit on the ground that the use of the railing was unauthorized.</p> <p>2. Same.</p> <p>The provision in a city’s charter (Laws N. T. 1872, p. 215, § 24) forbidding it to adopt, lay out, open, work, or grade any street less than 60 feet wide, refers to “streets and highways, ” strictly so called, and not to “bridges. ”</p> <p>8. Same—Estoppel.</p> <p>Defendant having accepted abridge, which was originally private property, and, by resolution of its common council, declared it open to public travel, it cannot claim that it had no right to maintain the bridge, and would have trespassed in going upon it to make repairs.</p>

Ellen A. Clark, surviving executrix of the will of Hiram Schrom, deceased, appeals from a decree of the surrogate on the final judicial settlement of the accounts of such surviving executrix.

Action by William Beach against the city of Elmira for damages to property owned by him, being a block of stores oil the north bank of the Chemung river, between the river and Water street in that city, by reason of the construction by the city of a sewer, known as the “State-Street Sewer,” which the city used and permitted others to use, and which discharged the sewage and other accumulations collected therein on plaintiff’s premises to the great injury of plaintiff.

Action by Charles E. Whittaker, as administrator of Eugene K. Whittaker, against the Delaware & Hudson Canal Company, to recover damages for the death of plaintiff’s intestate, alleged to have been caused by the negligence of defendant. At the trial the complaint was dismissed, and from the judgment entered thereon, and an order denying a motion for a new trial, made on a case and exceptions, plaintiff appeals. Eor statement of facts, see former report, 3 H. T. Supp. 576.

Indictment charging Fichólas HI Betsinger with rape on one Frieda Goessley, in the town of Marcellus, on the 10th day of February, 1890. It appeared in the evidence that she was born October 20,1875, in Germany; that near the last of January, 1890, she went to live with the defendant’s family; and that before that time she had lived in an orphan asylum at Auburn.

Action by George W. Palmer against Eugene H. Conant and George P. Conant for injuries sustained by plaintiff on the 19th of December, 1888, while in the employ of the defendants in their operation- of their saw-mill on the south side of Mad river at Camden.

Onondaga county. Prior to February 11, 1882, the plaintiff held a promissory note made by the Onondaga Coarse Salt Association, of which Thomas Malloy was treasurer. The American Dairy Salt Company, Limited, was organized in 1877, under chapter 611 of the Laws of 1875, and continued the business of manufacturing and selling salt until a receiver thereof was appointed in October, 1888. Malloy was also treasurer of the American Dairy Salt Company, Limited.

Action by Oren G. Staples against Sylvester G-. Mott and Copley A. Mott upon a note, made by the defendant S. G. Mott, and indorsed by the defendant C. A. Mott, a copy of which is as follows: “$1,400. • Washington, D. C., April 5, 1889. “Six months after date I promise to pay to the order of C. A. Mott, fourteen hundred dollars, at Jeff. Co. Mat. Bank, Watertown, M. Y., value received, with interest at 7 per cent, per annum until paid.

Indictment against John Kief and another for the murder of Adelbert D. Howard, charging the crime of murder in the first degree. Plea not guilty. Trial before a jury in the oyer and terminer held in Madison county, in September, 1886. Adelbert D. Howard died the 17th of December, 1884, and the indictment upon which the defendant was tried charges that his death was caused by the felonious act of Carrie 0. Howard and the defendant by administering to the deceased arsenic.

<p>1. Wills—Probate and Contest—Appeal.</p> <p>The decree of a surrogate refusing probate to a will was founded on his conclusions of fact as to want of testamentary capacity and undue influence. Held That, on reversal of the decree for error in such conclusions, a trial of the questions of fact by a jury should be directed, under Code Civil Proc. N. V. § 2588, requiring an order for such trial to be made, where the reversal of such a decree is founded upon a question of fact.</p> <p>2. Witness—Privileged Communications—Physician and Patient.</p> <p>Upon issues as to testamentary capacity and undue influence, the opinion of the physician attending testator, derived from observations while so acting, as to whether testator “ could correctly and intelligently comprehend the nature and condition and value of his property, ” is inadmissible, under Code Civil Proc. N. V. § 834, providing that a physician “shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity. ”1</p>

<p>1. Obstruction of Sidewalk—Injunction.</p> <p>An injunction to restrain defendants from using the sidewalk of a city street in front of their premises for loading, unloading, and storing goods thereon, should not be granted before trial of an action therefor, upon conflicting affidavits as to whether the sidewalk is unnecessarily obstructed.</p> <p>2. Same.</p> <p>Nor should a temporary injunctionbe issued to restrain defendants from maintaining a permanent bridge across the gutter of the street in front of their premises, where it appears that such bridge was constructed pursuant to an ordinance of the city, and that it maybe proper for lawful uses, other than driving or backing teams or wagons on the sidewalk.</p> <p>3. Same.</p> <p>The use of a sidewalk of a city street, by abutting owners, for driving and backing teams and wagons thereon, cannot be justified as necessary for the transaction of their business, or because the street is narrow; and in the absence of any clear authority therefor by statute or city ordinance, apart from the question of the constitutionality of such an enactment, such use of the sidewalk should be restrained by injunction.</p>

<p>Cancellation oe Deed—Fraudulent Conveyance.</p> <p>Plaintiff conveyed land to his brother, without consideration, and with intent to delay creditors. About a year afterwards, plaintiff's brother reconveyed the land, but he subsequently, with plaintiff’s consent, but off his signature to the deed, and gave a deed to his wife, whom he had married after the reconveyance to plaintiff. Held, that plaintiff was entitled to a cancellation of his deed to his brother, and to a reconveyance from the latter and his wife, no rights of the wife as a purchaser for value and without notice of plaintiff’s claim being shown.</p>

Action by Edward J. Curtin against William H. Curtin and his wife, Carrie F. Curtin, to compel a conveyance to plaintiff of certain real estate. From a judgment for defendants entered on the dismissal of the complaint at the trial, plaintiff appeals.

<p>Appeal from special term.</p>

<p>Motion to set aside order of resettlement.</p>

<p>Appeal from trial term.</p> <p>Action by Henry M. Burtis against John Cassidy. There was a verdict for plaintiff. From the judgment entered thereon, defendant appeals.</p>