Volume 110 — New York Appellate Division Reports

<p>Certiorari issued out of the Supreme Court and. attested on the 15th day of December, 1902, directed to Thomas Sturgis, as fire commissioner of the city of New York, commanding him to certify and return to the office of the clerk of the county of Kings all and. singular his proceedings had in relation to the dismissal of the relator, an assistant foreman, from the fire department of the city - of New York. •</p>

<p>Appeal by the defendant, the Erie Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in ■ the office of the clerk of the county of Rockland on the 15th day of February, 1904, upon the verdict of a jury for $100, and also from an order entered in said clerk’s office on the 1st day of February, 1904, denying the defendants motion for a new trial made ' upon the minutes. ,</p>

<p>Appeal by the defendant, the Press Publishing Company, from Can interlocutory.judgment of "the Supreme. Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 15th day of February, 1905, upon the decision of the court, rendered after a trial at the Kings County Special Term, sustaining the demurrer of ,the plaintiff to the -second and fourth • defenses set up in the amended answer.</p>

Appeal by 'the defendant, William McAdoo, as police commissioner of the city of New York, from an interlocutory judgment of the' Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the .12th day of May, 1905,'■ Upon the decision of the. court rendered after a trial at the Kings ■ County Special Term.

Appeal by the defendants the Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plain- ' tiff, entered in the office of the clerk of the county of Kings on the 12th day of January, 1905, -upon the verdict of a, jury for ij>800, and' also from an order entered in said clerkls office on the '30tli day of January,.1905, denying the defendant’s motion for anew trial made upon the minutes.

<p>Appeal by the defendant, William Hyer Harney, from an, order - of the Supreme Court, made at the Kings County Special Term , and entered in the office of the clerk of the county of Kings on the '2.9th day of August, 1905. '</p>

Appeal by the defendant, the Bropklyn Heights Bailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 5th day of April, 1904, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 4th day of May, 1904, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, John O’Brien, from a judgment of ' the Ootinty Court of Westchester county in favor of the plaintiff, rendered on the 18th day of October, 1904, upon the verdict of a jury, and also from an order entered in the office, of the clerk of thp county of Westchester Oil the 3d day of February, 1905, denying the said defendant’s motion for a new trial.

Certiorari issued out of . the Supreme Court and attested on the 7th day,of April, 1904, directed to. Henry'S.- C'arke, mayor, and others, constituting the common council of the city of New Bochelle, commanding them to certify and return to the office of the clerk of the county of Westchester-all and singular their proceedings had in relation to a certain assessment upon real property belonging to the relators.

Appeal by the defendant, James Owens,' as treasurer of the . village of Ossining, from a final Order of the Supreme Court, made at the Westchester Trial Term and entered in the office of the clerk of the county of 'Westchester on the 14th day of February, 1905,,. directing the issuance of a. peremptory writ of mandamus, .'

<p>Evidence — hearsay ^ declarations of landowner against interest—. exceptions in equity — suit in equity to impose trust on lands — corporate resolution no release — laches.</p> <p>In an action in equity, to .change -lands with .a trust against, heirs and, judgment , creditors of one who contracted to .convey the lands to a.covporation,. the declarations of such person, since deceased, showing that he considered lands to. which he then held an unrecorded, title belonged to said corporation, are admissible as declarations by a deceased landowner in disparagement of his 'title. - • . ■ . '</p> <p>In such equitable action, exceptions to. evidence,'though well taken, aflord no obstacle to au affirmance of judgment, if such evidence did not', substantially affect the result. ' '</p> <p>Resolutions of a corporation which are merely in, the nature of receipts of payment under a contract are not formal releases.</p> <p>Title acquired under foreclosure of a mortgage which .covers'after-acquired prop - . erty is sufficient to support an equitable action by the purchaser to impose ,a trust upon the lands, although the same were not specifically described in the . mortgage. . -</p> <p>The court will hesitate to upset a decree in equityi solely on- the ground of laches . raised for the first time oh appeal. ■.</p>

Appear by the defendants, George A. Barker and another, as executors and trustees, etc., of George Bell, deceased, and • others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of- the clerk of the county of Kings off the 8bh day of February, 190Í.- , George Bell died on July 21, 1879, leaving an estate iof nearly $1,000,000, in value and a last will and testament which was thereafter duly admitted to probate in the Surrogate’s Court…

Appeal by the’defendant, Daniel A. Hawkins, from so ranch of an order of the Supreme Court, made-at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 9th day of August, 1905,, as directs the payment of $1@0 counsel fee to the plaintiff’s .attorneys.

■ Appeal by’the defendants, George B. McClellan,, as mayor of the city of New York,'and others, composing the board of estimate and apportionment of the city of New York, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the l'lth day of October, 1905, granting the petitioner’s motion for a peremptory writ 'of mandamus.

<p>Appeal.by the defendants, Samuel I. Acken and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 4th day of May, 1904, upon the verdict of a jury rendered by direction of the court for $12,000, and also froiman order entered in said clerk’s office on the 4th day of May, 1904, denying the said defendant’s motion for a new trial made upon the minutes.</p>

<p>Stockbroker -l ratification- of unauthorized purchase by • brokers — duress.</p> <p>Though the defendant stockbrokers have bought stock for plaintiff on their own authority and without express order to. do so¡ when, the plaintiff has received from the-defendants a statement of all their transactions, and in several letters has agreed to pay the balance due in installments, and has deposited stock to secure the payment of such indebtedness, and has actually paid-the same, there is a ratification of the unauthorized purchase. .</p> <p>Though plaintiff had deposited stock to secure the payment of the indebtedness aforesaid* and though, under the agreement with the- defendants, the said securities could have been sold by defendants on notice if the said indebtedness was not paid, there was no duress by the defendants because there was no refusal by them to deliver the stock or threat to sell the same unless the plaintiff should pay money to which they were not entitled.</p>

<p>Appeal by the defendant, The City of New York,'from a judg.ment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 17th day of October, 1904, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 18th day of October, 1904, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by James Howard, as executor and trustee, etcl, of Peter Mallon, deceased, from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 28th day of July, 1904. • '</p>

<p>Appeal by Levi Pakelnishky from an order of the. Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 18th day of "April, 1905.</p>

<p>Municipal corporation — assessment for macadamizing village street.</p> <p>A property owner is liable equally with other owners to a “foot-front” assessment for macadamizing a village street, although such owner’s property is divided by a grass plot or green from the main portion of the street where the macadam is laid. The assessment is proper, although the narrow; part of the street between the green and such owner’s premises was not macadamized.</p>

<p>Lien Law — ¡no lien on vessel for material furnished but not used — statute authorizing lien on vessel strictly construed.</p> <p>A contractor furnishing materials for the construction of a vessel is not'entitled • to a lien on such vessel under section 30 of the Lien Law for materials furnished,, .but not actually used, in the construction of the vessel.</p> <p>Section 22 of the Lien Law, requiring a'liberal construction of article 1 of said act; applies only to that part of said statute relating ,to mechanics’ liens. It does not apply <to that part of the statute relating to liens on .vessels, which, being in derogation of _the common law, must be strictly construed.</p>

<p>Appeal by Flora A. Stegman, as-administratrix'With the will •annexed, etc., of George Lea, deceased, from a decree of the Sur- ' rogate’s Court of the county of. Orange, entered’in said Surrogate’s .Court on the 18th day of October,. 1904.</p>

Appeal by the plaintiff, Daniel E. Chichester, from .an order of the Supreme Court, made at the Kings County .Special Term and entered in the office of the clerk of the county of Kings on the 17th day of October, 1905.

<p>Attorney and' client — action for malpractice — plaintiff advised to plead guilty to defective indictment — erroneous charge.' "</p> <p>When, ■ in an action to recover damages against an attorney for negligence and lack of professional skill in advising plaintiff to plead guilty to an indictment to which there .was a valid defense on its face, and at a time when the Statute-of Limitations had run, it is reversible error for the court to refuse to charge that it was palpable 'want of skill and negligent exercise of duty as counsel not to be aware of the fact that the indictment did not state facts constituting the offense charged,, and that if the defendant did know that such facts were not alleged, it was his duty to apprise the plaintiff of his rights under the circumstances. <</p> <p>It is also error to refuse to charge that it was the duty of defendant, as attorney for plaintiff, to apprise him that he had a valid defense to the indictment under the Statute of Limitations.</p>

■ Appeal by- the . defendants, Joel D. Smith and another, from a judgment of the Supreme Court in'favor of the plaintiff, entered in tlie office of the clerk of the county of Columbia on the 27th day of December, 1904, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27th day of ■December, 1904, denying the defendants’ motion for a new trial ■ made upon the minutes.' ■'*. * In thé fall- of 1903 one William Sweet made a verbal agreement…

Appeal by the defendants, Engelbert Hardt and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 28th day of April, 1905, upon the decision of the court, rendered after a trial at the New York Special Term, over- , ruling the said defendants’ demurrer to the amended complaint.

<p>Appeal by the defendant, Robert H. Reid & Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of October, 1905, referring the issues in the above-entitled action to a-referee. •</p>

<p>ReAbgument of an appeal by the plaintiff, The Consolidated Fruit Jar Company, frojn a judgment of the Supreme Court in favor of the defendant, entered in the" office of the clerk of the county of Rew York on the 12th day of June, 1901, upon the report of a referee-.</p>

Appeal in each of the above-entitled actions by the defendant, George Moore Smith, as receiver of the E. C. Bell Manufacturing Company, from a, judgment of the.Supreme Court in favor of the plaintiff in each action, entered in the office of the clerk of the county of New York tin the 13th day of March, 1905, upon the decision of the court rendered after a trial at the New York Special ■Term: . ,

> Appeal by' the defendant, George B- Wade, doing business, under the firm name and. style of George B. Wade & Co., from an order of the Supreme Court, made at the Dew Yoi’k Special Term and entered in the office of the clerk of the county of Dew York on the 9th day of October, 1905.

Appeal by Howard H. Henry from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of November, 1905, denying his motion to vacate a subpoena duces tecum.

Beabgument of ,an appeal by the defendant,. The City of Mew York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of,Mew York on the 8th day of April, 1904;-, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office-on the 14th -day of April, 1904, denying the defendant’s motion for a, new trial made. -upon the minutes. , '■

Appeal by- Amelia R. Lowther, third party, from an order of the Supreme Court, made at the Hew York Special Term, and entered * in the office of the clerk of the county of Hew York on the-2d day óf Hovember, 1905, denying the appellant’s motion to vacate aii order for her examination in proceedings supplementary to execution.

<p>Complaint—necessary parties in action to recover stock issued on consolidation of corporations — demurrer to complaint in such action sustained.</p> <p>The plaintiff, a stockholder of the Groton Bridge and Manufacturing Company, sued the representatives of the deceased president of said corporation to recover his portion of certain stock of a new corporation which was alleged to have been delivered to said president in trust for stockholders upon the consolidation of said corporation with the new corporation which took over the assets of the old. The plaintiff also sought to recover his portion of certain assets remaining after said consolidation which were alleged to have been transferred to said president at less than their value and also his proportionate share of the proceeds arising on the sale of uncompleted contracts. On demurrer to the complaint on the ground of defect in parties and as not showing a cause of action, Held, that as plaintiff's corporation was entitled to said stock as between it and its stockholders, such corporation was a necessary party to an action against its president to compel him to account for said stock;</p> <p>That the other stockholders of the corporation were necessary parties, as the plaintiff had sued individually and not on behalf of himself and other stockholders and also because the trust alleged was for the benefit of the stockholders collectively and not for the benefit of the plaintiff individually;</p> <p>That as the assets remaining after the consolidation belonged to the corporation , and not to the plaintiff until a dividend had been declared, the complaint failed to state a cause of action for the recovery of a portion of said assets.</p>

Appeal by the defendants, Giuseppe Scaccianoce and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of November, 1905, denying the defendants’ motion to open their default.

<p>Demurrer — complaint dismissed when demurrer to answer overruled without leave to plead over — contract to build dam — reserved right to change plans — when change of plans not breach of contract.</p> <p>When the Court of Appeals has overruled a plaintiff’s demurrer to a separate affirmative defense to the entire cause o'f action contained in the answer, and has remitted the case to the court below for judgment in accordance therewith and without granting leave to plaintiff to withdraw the demurrer, the defendant is entitled, as a matter of law, to final judgment dismissing the complaint.</p> <p>A demurrer which is not withdrawn admits the allegations demurred to, and cannot be withdrawn without leave of court, and such leave is discretionary with the court.</p> <p>When a contract for the erection of a dam by the plaintiff provides that the defendant’s engineers may make changes in the plans and materials to be used .in the work, and that any disputes be referred to suclp'engineers as referees whose decision shall be final, it is not a breach of the contract by the defendant to insist that certain portions of the dam be built of earth instead of masonry, as originally contemplated.</p> <p>Moreover, a mere requirement by defendant that the nature of the materials used be determined after an exploration of the river bed is not even an insistence on a change in the plans, and furnishes no proof of a breach of contract.</p>

Appeal by the plaintiff, W. Wallace Grant, from an order of the Supreme Court, made at the New York Special Term and entered iii the office of the clerk of the county of New York on the 2d day of December, 1904, denying the plaintiff’s motion for a retaxation of costs.

Appeal by the defendant, James Tuttle Smith, individually and as executor, etc., of Frances I. Smith, deceased, from a judgment of the Supreme Court in favor of certain of the defendants, entered, in the office of the clerk of the County of Flew York, on the.l2th day of October, 190.5, upon the report of a referee.

Separate appeals by the defendants, Edward S. Ricoll and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rew York on the 11th day of March, 1905, upon the decision of the court, rendered after a trial at the Rew York Special Term, overruling the separate demurrers interposed by the sáid defendants to the plaintiff’s complaint.

Appeal by the plaintiff, Emma A. Dambmann, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county, of Rew York on the 28.th day of October, 1905, denying the plaintiff’s motion for a commission., s ■ . •

Appeal by the plain tiff, Charles G. Braxmar, from a judgment of the Supreme Court in favor of the defendant Grace Van Cott Stanton, entered in the office of the cleric of the county of New* York on the 6th day of April, 1905, upon the'dismissal of the complaint by direction' of the court as' to the said defendant after a trial at the New York- Trial Term.

Appeal in the first above-entitled proceeding by the plaintiff, The West Side Electric Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 9th day of November, 1904, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the plaintiff’s complaint.

Appeal by the plaintiff, Chapman E. Strong, from a judgment of the Municipal Court of the city of Hew York, borough of Queens, entered in the office of the clerk of said court'on the 27th day of May, 1904.

Appeal by the defendant, the Watmetah Silk Company, from a judgment of the Supreme Court in favor of the plaintiff, entered • in the office of the cleric of the county of Kings on the 7th day of December, 1904, upon the verdict of a jury rendered by direction of the court after a trial at- the Kings County Trial Term.

Appeal by the relator, the Merchants’ Real Estate Company, from an order of the Supreme Court, made at - the Rew York Special Term and entered in the office of the clerk of the county of Rew York on the 27th day of June, 1905, dismissing a writ of certiorari theretofore issued herein to review an assessment' for the purpose of taxation for the year 1903. ' ■

Cross-appeals by the plaintiff, James A. Deering, and by the defendant, John Schreyer, from various portions of a judgment of the Supreme Court, entered in the office of the .clerk of the county of Mew York on the 29th day of May, 1905, upon the decision of the court rendered after a trial at the Mew York Special Term.

<p>Appeal by the defendant, George Mulligan, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of üew York on the 31st day of March, 1905, upon, the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 10th day of April, 1905, denying the defendant’s motion for a new trial made upon the minutes. ■</p>

Appeal- by the plaintiffs, Benjamin P. Mills and others, from a judgment of the Supreme Court in favor of. the defendant Irene G. Ganun, éntered in the. office ¡of the clerk of the county of Yew York on the 24th day of May, 1905, upon the decision of the court rendered after a trial' before the court without .a jury at the Yew York Trial Term. ■ • '

Appeal by the defendant, the American Surety Company of Hew York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk. of the county of Hew York on the 24th day of May, 1905,. upon the-verdict of a jury rendered by direction of the court; also from an order entered in said clerk’s office on the 22d day of May, 1905, denying the defendant’s motion -for a new trial made upon the minutes, and also from an order made during the…

' Cross-appeals by the plaintiff, Jacob Born, and by the defendant, Isaac A. Hopper, as superintendent of buildings for the borough of Manhattan, from portions of an order of the' Supreme Court, made óñ a motion for a temporary injunction at the Hew York Special . Term and entered in the office of the clerk of the county of Hew York on the 20th day of September, 190b,

<p>Decedent’s estate — insufficient -proof of promise by testator to pay for • services. '</p> <p>In an action by a niece against the estate of her uncle for .services admitted to have been rendered to his wife, it was-shown that the decedent had promised to remember the plaintiff in his will if she would remain with him and continue her services; that-she had not done so; that after leaving 'service she haa made a demand for a balance due, which was paid.' There-was no direct evidence ' óf "any promise by the testator to pay. ,</p> <p>Held, that the evidence was insufficient to sustain a verdipt for the plaintiff. • ,</p>

<p>Mortgage — merger of lien when mortgagee takes title — presumption as to merger stated — second mortgage takes precedence on merger of ' prior mortgage — evidence.— declarations of owner at time of merger admissible against his assignee.</p> <p>The lien of a mortgage, as a matter of law, becomes merged in the realty when 'the mortgage and the title to the mortgaged premises vest in the same person, •unless it clearly appear that the merger is not intended.</p> <p>Hence, when the owner of a prior mortgage, on property on which there is a second mortgage, obtains title to the premises and it is shown that the title was so taken for the purpose of making the second mortgage the first, the lien of the prior mortgage is merged and the rights of a subsequent assignee of said • prior ..mortgage are postponed to the lien of the- second mortgage.</p> <p>The record pf the conveyances whereby such, merger is effected is notice to the' ..assignee of said merged'mortgagee. .</p> <p>It seems, that, though such merger takes place,.a subsequent assignment of the "' merged mortgage"gives the assignee a-lien, which, however, is subsequent to ■ the lien of a prior second mortgage not merged. )</p> <p>It seems, that a written statement made by" a corporation at a time when it held . said first mortgage and the legal title to the premises, which statement describes th'e premises as incumbered only by the second mortgage, is a declaration of an intention to merge the lien in the superior title which is admissible against the subsequent assignee of such merged mortgage,</p> <p>Houghton, J., dissented. ‘ ■</p>

Appeal by the defendant, Frank Gr. Fletcher, from a judgment of the Court of General Sessions of the Peace in and for the city and county of New York in favor of the plaintiff, rendered on the 15th day of February, 1905, upon the verdict of a jury convicting the defendant of the crime of criminally receiving stolen property.

<p>Bills • and notes — check — liability of drawee who pays on forged indorsement — when' assignee of drawer may recover of 'drawee — failure to show negligence of drawer — tender.</p> <p>The payment of a check on a forged indorsement is at the peril of the bank, in the absence of an estoppel or the negligence, of the depositor.</p> <p>Where the plaintiff, having given his promissory note as consideration for a loan made by means of a check payable to a third person, which check was paid on the forged indorsement of the payee, seeks as assignee of .the rights of the , drawer to recover from the drawee the amount so paid, a recovery will not be denied on the ground that the drawer has sustained no loss, since there is a failure of consideration. for the unpaid promissory note of the plaintiff, which the drawer holds, to the amount of, this check.</p> <p>A recovery by such assignee Of the drawer is not barred on the grounds of the drawer’s negligence in not discovering that the signature of the payee was forged, when it is shown that he only learned of the • forgery I by communica- ' tións from the payee some time after the check was returned to- the bank. Moreover, such alleged negligence is immaterial when it is not shown that the indorsee who paid the check was injured, but,, on the contrary, only paid the same on a guaranty of prior indorsements.</p> <p>When the- drawee of a check denies liability and refuses- payment, tender of the check by the holder thereof is waived'. Moreover, a presentation of the check by the holder, whom the drawee refers to its- counsel without any objection.on the subject of tender is a tender. ' -</p>

<p>Trespass — telephone wires attached to roof—proof of ownership of wires — measure of damages — license not presumed — evidence of damage'— Municipal Court of New York — reduction of claim to give jurisdiction —jury trial in said court — amendment of complaint.</p> <p>When, in an action for trespass against the defendant for attaching telephone wires to the roof of plaintiff’s house, it is shown that the wires were there when the plaintiff bought the premises; that they diverged to other houses; that they came from a terminal station owned by the defendant which connected with the defendant’s subway cables; that there was no other telephone company in the city; that there were a number of telephones in the neighborhood; and when a former employee of the defendant who had procured licenses to string wires testifies that these wires belonged to the defendant, the evidence is sufficient to show the ownership of’ the defendant. Said evidence-of the former employee of defendant is competent.</p> <p>When, in such action, the value of such use and occupation to the owner of the premises or damages to the freehold cannot be shown, the measure of damages is the value of such use and occupation to the trespasser. Testimony of a former employee of the defendant employed to secure licenses to string wires, that such license was worth §100 per year, is competent.</p> <p>Though such wires were on the premises when the plaintiff took title thereto, there is no presumption of a license from the prior owner, and in any event it is incumbent upon the defendant to plead and prove such prior license. Moreover, the conveyance of the premises to the plaintiff was a revocation of any prior license."</p> <p>Evidence that other licenses were paid for by the defendant is competent to contradict a witness of the defendant who testified that it was not accustomed • to pay for licenses.</p> <p>It is not error, under the circumstances, to charge that if the defendant placed - and maintained said wires upon the building without the consent of the plaintiff, it was immaterial whether or no the defendant actually used the same, for, if the use were abandoned, it is incumbent upon the defendant to show it.</p> <p>When in an action in the Municipal Court of New York, the return of a trial judge states that the plaintiff’s demand was reduced to an amount within the jurisdiction of the court before the defendant made application to remove the cause, sueh return is conclusive. Evidence to the contrary offered by the defendant is properly excluded as the question is not among the issues.</p> <p>An objection to the array of jurors in said court on the ground that the list contaiiis a number of names different from the number the statute requires, is properly overruled, for the court cannot be divested of jurisdiction because of the neglect of the commissioner of jurors.</p> <p>'Under section 166 of said Municipal Court Act, the court has power to allo'w an. amendment changing the complaint from use and Occupation to trespass, although it. substitutes a new. cause of action, if the facts upon which the action is based are the same, and the defendant claiming surprise is allowed ah adjournment and an amendment of the answer.</p> <p>IVhen the plaintiff in an action.in said court has demanded a jury, the defendant cannot demand a jury of twelve on the adjourned 'dayafter the joinder Of-.issues on amended pleadings-.</p> <p>It seems, however, that the .defendant would have been entitled to a jury of twelve if demanded on the new j oinder of issue on amended pleadings. -</p>

<p>Appeal by the plaintiff, Henry Aplingtpn, from a judgment of the Supreme Court in favor of the defendant, entered in Hie office of the clerk of the county of. Hew York, upon the verdict of a jury rendered by direction of the court, and also from an order entered-in said clerk’s office denying the plaintiff’s motion for a 'new trial made upon the minutes.</p>

<p>Constitutional law&emdash;Penal Code, section 171a, unconstitutional &emdash; contract not to join labor organization.</p> <p>Seetio~ 171a of the Penal Code, in so far as it prohibita a natural pei~son'from entering into a contract which binds his employees not to join a labor organization, is unconstitutional.</p>

<p>Conversion — when. one redeeming pledged property of another not ' § guilty of conversion—subrogation.to rights of pledgee.</p> <p>When, .the owner of personal property pledged in the name of her husband with -her- consent, not having funds to redeem the same, requested her husband to raise the money and redeem -the property, and said husband requested the' defendant to redeem such property and make further advances thereon, and retain the property until paid, a judgment in favor of the owner for the conversion of such property should be reversed.</p> <p>Under such circumstances, the owner has clothed her husband with apparent - authority to induce another to redeem and hold the property as security for repayment.</p> <p>Such defendant redeeming property already pledged is subrogated to the lien of the first pledgee.</p>

Appeal by the defendant, The Village of Hew Brighton, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of August, 1904,- upon- the report of a referee.

Appeal 'by the relator, Patrick Loughran, from an order of the Supreme Court, made at the New York Special Term and entered in the office, of the clerk of the county of Ne,w York on the 20th day of September, 1905, dismissing a writ of habeas corpus and remanding the- relator to the custody of the defendant.

Appeal by Carolyn Foster Stickney and others, as executors, etc., of Joseph Stickney, deceased, and Carolyn Foster Stickney, in her individual capacity and as widow and devisee, from an order of the Surrogate’s Court of the county of Few York, entered in said Surrogate’s Court on the 7th day of July, 1905, affirming, an order theretofore entered in said Surrogate’s Court fixing a tax on the real property of said decedent.

Appeal by the plaintiff, Lewis Benedict, from a judgment of the Supreme Court in favor.of the -defendant, entered in the office- of the clerk of the county of New York on. the 13th day of July,.1905,' upon the report of a. referee.

Appeal by the defendants, Mary Ann Morris and another, from , a judgment of the Supreme, Court in.favor of the plaintiffs, entered in the office of the clerk ol the county of New York' on the 10th day of April, 1905, upon the verdict of' a jury,' and also from an order entered in said clerk’s office on the 7th day of April, 1905, denying the defendants’ motion for a new trial made upon the minutes.

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

<p>_ Appeal^ by the defendant, David W.. Mesick, doing business under the name and style of Fulton Foundry and Machine Company, from so much of an order of the Supreme Court, made at the New York Special Term, and entered in the office of the clerk of the county of New York on the 30th day of October, 1905, as.grants plaintiff’s motion for a stay of a certain action pending in the Municipal Court until the final determination of this 'action.</p>

A-ppeal by the Wm. Badam Microbe Killer Company from so much of an order of the Supreme Court, made at the New York Special Term, bearing date the 27th day of November, 1905, add entered in the office of the clerk of the county of New York, as appoints Walter W. Bostwick as substituted trustee under an agreement of trust made between the appellant and Joseph A. Morris, the original trustee.

<p>Appeal by the -plaintiff, G. Edwin Jones, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 16th day of Hovember, 1905.</p>

Appeal by the defendants, James L. Wells and others, as commis-siónérs of taxes and.assessments of the city of Me\y York, from an order of the Supreme Court, made at.the Mew York Special Term- and entered in the office of the clerk of the county of Méw York on the 8th day of September, 1905, directing a reassessment of the relator’s personal property for the year. 1903.

Appeal by the defendant, the Bubber Goods' Manufacturing Company, from an interlocutory judgment .of the Supreme Court in favor of the plaintiff, entered in the office of the -clerk of the ' county of New York on the 8th day of July, 1905, upon the decision of the court, rendered after a trial at the New'York Special Term, overruling nine-demurrers interposed by the defendant to nine separate replies of the'plaintiff to the first and fourth counterclaims set forth in the…

<p>Cross-appeals by the applicants, William Randolph Hearst and others, and by David J. Woelper and others from an order of the Supreme Court, made at the Hew York Special Term, and entered in the office of the clerk of the county of Hew York on the 28th day of Hovember, 1905., as resettled by an order'entered in said clerk’s office on the 4th day of December, 1905.</p>

Appeal by the plaintiff, Leo Sohlesinger, as receiver of tlie Federal Bank of New York, from a judgment of the Supreme Court in favor of the defendant Schultz, entered in the office of the clerk of the county of New York on the 12th day of July, 1905, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case after a trial at the 'New York Trial Term. ; <

Appeal by the plaintiff, the John H. Parker. Conxpany, from a judgment of the Supreme Court,in favor of the defendant, enteied in the office of the clerk of the county of -New York on the 18th day of July, 1905,. upon the decision of the court, rendered after a trial at the New York Special, Term, /overruling the plaintiff’s demurrer to threer separate defenses contained in the defendant’s answer.

• Appeal by the defendant, Adelia Gertrude Stringer, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 16th day of October, 1905, denying the defendant’s motion to punish-the relator for contempt.

Appeal by the defendant, The City of New York, from so much of a judgment of the Supreme* Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 3d day of October, 1905, upon the report of a referee, as awards interest to the plaintiff on the sum recovered.

Appeal by the defendant-,-Louis Mathot, from so much of an order of the Supreme Court, made 'at the New York Trial Term and entered in the office of the clerk of the county of New^ York on the 4th day of October, .1905, as imposes the payment of costs as a condition for the granting of a new trial.

Certiorari issued out of the Supreme Court, dated the 9th day of August, 1905, directed to Edward H. Healy . and, another, as Special Deputy Commissioner of Excise of the boroughs of Manhattan and The Bronx, and superintendent of buildings of the borough of .Manhattan, respectively, commanding them to certify and return to the office of the clerk of the county of Hew York all and singular their proceedings had in relation to the revocation of a certain liquor tax…

Appeal by the plaintiff,. Eliza Mulry, individually and as executrix,. etc., of James Mulry, deceased, from portions of a judgment of the Supreme Court in favor'óf the defendants, entered in the office of the clerk of the county of Hew York an the 8th day of May, 1905, upon the decision of the court, rendered after a'trial at the Hew York Special Term, construing the will of James Mulry^ deceased. , . .

Appeal by the plaintiff, Clermont Hi Wilcox, from a final judgment- of the Supreme' Court in favor of the defendants, entered in the office of the clerk of the county of Mew York, upon the decision of the court, rendered after a trial at the Mew York Special Term, dismissing- the complaint on demurrer on the ground that it does not state facts sufficient to constitute a cause of action) and also from: an order made at the Mew York Special Term denying the plaintiff’s motion…

• Appeal by the plaintiff, Franklin'Pettit, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York upon the decision of the court, rendered’ 'after, a trial at the New York Special' Term, dismissing the plaintiff’s complaint oh demurrer, and also from • an order entered in said clerk’s office, denying -the plaintiff’s motion for a permanent injunction arid vacating a temporary injunction restraining…

Appeal by the defendants, Caroline' S. Hagan, individually, and' as administratrix, etc., of Peter M. Sillcock, deceased, and others,from a judgment; of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the’ 17th day of January, 1905, upon the decision of the court rendered after a trial at the Hew York Special Term.

Appeal by the plaintiff, Frederick Brandt, from a judgment of the Supreme Court in favor of-the defendants, entered in the office of the clerk of the county of New York on the 10th day of May, 1905, upon the- decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits.

Appeal by the plaintiff, Elizabeth Illensworth, as executrix, etc., of Harriet M. Kemp,-deceased, and by the defendant, William P. Illensworth, from portions of a judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county .of Mew York on the 29th. day of December','. 1902, upon the decision of the court rendered after a trial at the Mew'York Special Term. • ' '

Appeal by the defendants, The City of New York and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of November, 1905, continuing a temporary injunction restraining the city and the commissioner of bridges from entering into a contract with the Pennsylvania Steel Company for the construction of the 'superstructure of the Manhattan bridge over the East river.

Appeal by Percival S. Jones, as executor, etc., of Jane Gr. Smith, deceased, from that portion of a decree of the Surrogate’s Court of the county of Eew York, entered in said Surrogate’s Court on the 21st day of March, 1905, construing the 1st clause of the will of said John Gr. Smith to be a bequest to his sons individually rather than as a class.

. Appeal by the. defendant, Charles Hoffheimer, ¡from a judgment of the Court-of Special Sessions of the city of Hew York, rendered on the 29th day of March, 1905, convicting the defendant of a . violation of subdivision 6 of section 364 of the Penal Code, ■

Appeal by the defendant, The Village of Tupper Lake, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Franklin'on the 7th day of October, 1904, upon the verdict of a jury for fifty dollars, and also from an order entered in said clerk’s office on the 21st day of October, 1904, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 21st day of June, 1904, upon the verdict ■ of a jury for $600, and also from an order entered in said clerk’s office on the 18th day of July, 19(34, denying the defendant’s motion for a new trial made upon th(e minutes. . • '

Appeal by the relator, Sylvester D. Baldwin, from sq much of an order of the Supreme Court, made at the Queens County Special Term and entered in the office of the clerk of the county of Queens on the 3d day of June, 1905, as denies the relator’s application for a peremptory writ of mandamus.

Appeal by the plaintiff, Zatter W. Rose, from an order of the Supreme Court, made at the Steuben Trial Term and entered in the office of 'the clerk of the county of Steuben on the 20th day of June, 1905, granting the defendant’s motion for a new trial made upon the minutes. The action was commenced on the 30th day of August, 1904, to recover damages claimed to have been'sustained by an alleged libelous letter written by the defendant.

Appeal by the defendant, George M. Wetmore, from a judgment of the County Court of Monroe county in favor of the plaintiff entered in the office of the .clerk of the county of Monroe on the -21st day of March, 1905,' upon the: verdict of a jury for $1,000, and also from an order, entere^ in said clerk’s office on the :21st day of M_arch,. 1905, denying the defendant/s motion for a new trial made upon the minutes: ' ■ , The action was commenced oh the 13th day of June:,…

Appeal by the plaintiff, Lewis Bennettj from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Herkimer on the 17th day of May, 1905, upon the dismissal of the complaint by direction of the court after a trial at the Herkimer Trial Term.

Appeal by the plaintiff, The Owasco Lake Cemetery, from an order of the Supreme Court, made at the Monroe Special Term, bearing date the 23d day of September,'1905, and entered in the office of the clerk of the county of Cayuga, denying the plaintiff’s motion to vacate the report of a referee and a judgment entered upon such report.

Appeal by the defendant, The Grand Lodge of the Ancient Order of United Workmen of the State of Hew York, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Monroe on the 17th day of January, 1905, upon the report of a referee.

<p>Appeal by the plaintiff, Harriet A. Linzy, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Livingston on the 4th day of April, 1904, upon the decision of the court rendered after a trial at the Livingston Special Term.</p>

Appeal by the defendant, Frank C. Delmont, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office ■of the clerk of.the county of Monroe on the 22d day of April, 19Ó5, upon the decision of the court rendered-after a .trial at the Monroe Special Term. • ; . ~ -

' Appeal by Augustus B. Kellogg and another, as executors,; etc:, of Edwin L. Burdick, deceased, from portions of a decree of the Surrogate’s Court of Erie county, entered in 'said' Surrogate’s Court . on the 21st day of Aprilj 1905. • ■

Appeal by Otto Kelsey, as Com ptroller of the State of Hew York, - from an order of the Surrogate’s Court qf Wyoming county, entered-, in said- Surrogate’s Court on the 10th day of July, 1905, affirming an Order theretofore made in the proceeding exempting certain real property from taxation, with noticeof an intention to-bring up for review upon such appeal-an order entered on the- 12th day of - June, 1905, reopening the above-entitled proceeding and allowing further -…

<p>Costs—when defendant entitled to costs in action for trespass on non-suit of plaintiff.</p> <p>When an action in a Justice’s Court for trespass has been discontinued on the ground that the title to real property is involved, and in a subsequent action a nonsuit is granted on the failure of the plaintiff to show any trespass, the defendant is entitled to costs. As the plaintiff has failed to establish a case, .there has been no trial of an issue of fact ” as contemplated by section 3335 of the Code of Civil Procedure.</p>

Appeal try the defendant, Burt C. Brown, from a. judgment of the County Court of Herkimer county, rendered on the '27'th day of March, 1905, upon the verdict of a jury convicting, the said defendant of the crime of arson in the third degree.

<p>Motion by the plaintiff, John M. Kahn, an infant, by John F. Kahn, his guardian ad litem, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon a nonsuit granted by the court after a trial at the Ontario Trial Term.</p>

Appeal by the defendant, Harry M. Kaiser,, as-sheriff of the county of Erie, from a judgment of the Supreme Court in 'favor of the plaintiff, entered in the office of the clerk of tk¡@ county of Ezie on the 31st day óf March, 1905, upon tlie.veizdict of a jury rendei'ed' by direction of the court after a trial at the' Erie Trial Term, and also from an order entered iii said clerk’s office on the lY.th day of February, 1905, denying the defendant’s motion for a. new trial…

<p>Seduction—woman’s memory that she was seduced recalled hy hypnotism— wrong accomplished hy hypnotism—verdict unsupported by the evidence.</p> <p>In an action for seduction, the only evidence of the same was the testimony of the woman alleged to have been seduced. She testified that at the time of the . alleged seduction her parents were in the next room, but that she did not try t.o arrest their attention; that she had no real recollection of the acts pf intercourse until after the birth’ of her child, when the plaintiff’s counsel hypnotized her and caused her memory of the fact to return; that, though she struggled with the defendant, he accomplished his end hy hypnotizing her and that she had no recollection of the act itself. No expert evidence was produced showing that such phenomena are possible.</p> <p>Held, that a verdict for the plaintiff was entirely unsupported hy the evidence.</p>

<p>Appeal by the defendants, Almira Winchester and others, from portions of an order of the County Court of Erie county, éntered in the office of the clerk of said county on the 19th day of April, 1905, as amended by an order of said County Court, entered'in said clerk’s office on the 17th day of May, 1905, confirming the report of a referee.</p>

. Appeal by the defendant, William B. Rockwell, as temporary receiver of the Syracuse, Lakeside and Baldwinsville Railway, from a judgment of the Cotinty Court of Onondaga' county, entered in the office of the clerk of said county on the 2.1st day of June, 1905, -affirming a judgment of the Municipal Court of the city of- Syracuse in favor- of the plaintiff.

<p>Sales—contract to deliver at a fixed date “or as soon as possible” construed; v</p> <p>When a contract for the manufacture and sale of goods provides that the orders therefor are “ all to he filled by April 1st, or as soon as possible,” it must be construed to mean a delivery by the vendor by April first or as soon thereafter as possible. Hence, there is no breach by the vendor in failing to-deliver all the goods by April first.</p>

<p>-Will — provision that legacy shall not lapse — codicil and will construed together—when revocation of clause in will does not revoke provision against lapse of legacy.</p> <p>The 3d clause of a will bequeathed certain stock in trust, the dividends payable to testator’s wife for life. The 4th clause devised certain real-estate to said wife for life, and provided further that ‘‘the property mentioned in the third and fourth clauses of this will is to form and be considered my final residuary’estate." The'6th clause gave §2,000 to a brother, with the provision “In case my said brother shall die in my lifetime, leaving * * * descendants him surviving, such legacy shall not lapse * * The 8th clause made a similar bequest to another brother with the same provision against lapse thereof. The 29th clause provided that of the final residuary estate mentioned in the 3d and 4th clauses, being part of the life estate of the wife, one-sixth was to go to each of said brothers.</p> <p>By a codicil the testator revoked the 4th clause, but devised a life estate in the house and lot to his wife, the boundaries of the lot being slightly changed, with a legacy of §1,000, and provided “ In all other respects I hereby ratify and confirm my said will, and each and every part thereof.”</p> <p>In a subsequent codicil the testator stated that, having purchased other stock in the place of that first held, he revoked the 3d clause of the will and in place thereof gave the new stock in trust for life to his wife; adding,.“The property mentioned in the fourth paragraph of my said will and the property herein-before mentioned * * * is to form and be considered my final residuary estate, and is to be disposed of according to the terms, tenor and condition of my said will.”</p> <p>Held, that as codicils must not be construed to revoke a will further than is necessary to give effect to such codicils, the codicils aforesaid did not revoke the provision that the legacies to said brothers of the final residuary estate should not lapse, and hence, as said brothers had died before the testator, said legacies passed to their descendants.</p> <p>Receipts executed by beneficiaries on the distribution of property not included in said final residuary estate do not estop such beneficiaries from questioning the decree of the surrogate holding that their legacies in the final residuary estate have lapsed, when such portion of the estate is still in the hands of the trustee. . v</p>

Appeal by James Gr. Hunt, individually, as sole surviving trustee ' of the estate ef John Ingersoll,, deceased, and as administrator, etc., of Mary Hunt, deceased, from an order of the Surrogate’s Court .of. Herkimer county, entered in said Silrrogate’s Court on the'll th day of September, 1905, resettling an order bearing date the 3-lst day of July, 1905, and entered on. the 3d day of August, 1905.

Appeal by the, defendant, Patrick Keenan, as chamberlain of the city of New.

<p>Specific performance — -evidence insúfficient to sustain decree of specific performance of Contract to-sell lands. ’ '</p> <p>The plaintiff and the defendant, an- owner of real estate, entered into-an executory contract for the sale thereof, part of the consideration being paid. Performance was refused by the defendant, and the plaintiff sued for specific performance. It was shown that the defendant had previously conveyed the premises to her daughter (also made defendant) for a consideration, which was partly paid; that the defendant’s daughter had another title to the premises through mesne conveyance through an uncle, who was not produced as a witness, for which conveyance there was a consideration; that the defendant mother had incumbered the property by a mortgage; that the daughter had no knowledge thereof or of the contract with the plaintiff.</p> <p>Held, that the evidence was insufficient to sustain a decree for specific performance and that a new trial should be granted.</p> <p>As to whether said daughter could be ordered to convey, qumre.</p>

, Appeal bv-the defendant, John-- A. Effray,-from a judgment of • the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21st day of June, 19Ó5, upon the decision of the court rendered after a trial át the New. York Special Term. -

<p>Negligence — charge erroneous mTimiting reeoveryto expenses paid.</p> <p>When the court, having correctly charged the jury as to the measure of damages in an action for personal injuries received through the negligence of the defendant, which injuries were shown to have been severe, in the last reference to the measure of plaintiff’s compensation — in commenting upon the amount which he had paid his doctor and other financial loss — says, “This perhaps represents in brief the measure-of the plaintiff’s recovery, if he is entitled to recover,” a verdict of §500, which did not exceed the expenses to the plaintiff caused by the accident, should be set aside and a new trial granted.</p> <p>Under such "charge, the jury may have thought that the plaintiff was entitled to nothing for his pain, suffering, etc.</p>

Appeal by the defendants, Isidor Strans and another, copartners doing business under the firm name of R. H. Maey & Co., from an order of the Supreme Court, made at the Rew York Special Term and entered in the office of the clerk of the County of Rew York . on the 31st day of October, 1905, denying the defendants’ motion for a bill of particulars. . . .

Appeal by Louis Baer an<;l others, claimants, from an order of the Supreme Court, made at' the New York Special Term and entered in the office of the clerk of the. county of New York on'the 8th day of November, 1905, confirming the first interlocutory report of a referee theretofore appointed herein with respect to the disallowance of the claims of the claimants.

Appeal by the defendant, Eliza Bnien, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the. county of Washington on the ,4th day of. May, 1905, upon the decision óf the court rendered after a’-trial before the court Without a jury at'the Washington Trial Term. Upon the 6th day of August, 1901, Daniel Guerin deeded to the defendant,- one of his daughters, all of his real estate.

Appeal by the defendant, The Town of Saugerties, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 14th day of July, 1905, upon the verdict of h jury for $5,000, and also from an order entered in said clerk’s office on the 15th day of July, 1905, denying the defendant’s motion for a new trial made upon the minutes.

■ Appeal by the plaintiff, Benjamin F. Burke, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Schenectady on the 15th day of August, 1905, upon the dismissal of the complaint by direction of the court after a trial at the Schenectady Trial Term. This action is brought, under section 20 of the Civil Service Law (Laws; of 1899, chap. 370, as amd. by Laws of 1902, chap. 270).

Appeal by the defendant, Thomas H. Karr, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 17th day of July, 1905, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 17th day of July, 1905, denying the defendant’s»motion for a new trial made upon the minutes. Defendant was taking stone from a quarry in the town of Brunswick in Rensselaer county.

<p>Appeal by the relator, Hárry H. Bender, from an order of the Supremd- Court, made at the Albany Special Term and entered in the- office of the clerk of the county of Albany on the 14th day of October, 1905,' denying the relator’s application for -a writ of prohibition absolute herein. "</p> <p>The defendants, comprising the State Civil Service Commission, were proceeding to investigate a complaint made by one Doty against the Fiscal Supervisor of State Charities. The charge made in the complaint was a violation of section 24 of the Civil' Service Law (Laws of 1899, chap. 370). Section 24 of-that law, as far as is here applicable, provides that no'officer of the State shall directly or indirectly use his authority or official influence to compel or induce any employees under the State government to pay or promise to pay any political subscription; that every such officer in charge or control of any building or room occupied for .the purposes of said government is authorized to prohibit the entry of any person, and is forbidden knowingly to permit any person to enter the same for the ' purpose of making or collecting political assessments. It is further in that section provided that any person guilty of violating any .provision of the "section shall be deemed guilty of a-misde- . meaner. The investigation had proceeded for a time ex parte. Thereafter notice was given to the relator with a copy of the charges made. The relator appeared and'objected to the continuance of the investigation, and, upon his objection being overruled,' an alternative Writ of prohibition was, served. Hpon the return made to this alternative Writ the matter came on for ai-gument before the Special Term, where the relator’s application' for the writ was denied. From the Order denying this application this appeal has been taken.</p>

Appeal by the defendant, The State of New York,, from a judgment of the Court of Claims of the State of New York in favor of the plaintiff, entered in- the office of the clerk of said court on the 18th day of April, 1905. The claimant, a stonecutter, was on the 2d day of June, 1903, in the employ of Carson Brothers, a firm of stone contractors and dealersfin the city of Rochester.

<p>Appeal by Matthew T: Gaffney from an Order of the Supreme Court, made at the Greene Special Term, bearing date the 21st dayof /September^ 1905, and entered in the. office of the-clerk of the county of Greene, confirming,, as modified, an order theretofore entered in .safd clerk’s office appointing William D.. Brinnier. committee of the-person and property of Louise B. O’Connor.</p> <p>The appellant- claims to be guardian of the incompetent, appointed in lunacy, proceedings in the State of Hew Jersey, dud her committee appointed at a Special Term at the-city-of Hew York after the appointment "of the said Brinnier,'and as such he moved to set aside the order appointing Brinnier.; the court"" modified the order so that Brinnier is committee of the property only and not of the person, and as so modified confirmed it.</p>

Appeal by the defendant, The Delaware and Hudson Company, from a judgment of' the Supreme Court in favor of the plaintiff, entered in the office of 'the cleric of the county of Bensselaer on the 15th day of May, 1905, upon the verdict of,a jury for $1,000, and also from an order entered in said clerk’s office on the 15th day of May, 1905, denying the defendant’s motion fora new trial made upon the minutes. • The action is for negligence.

Appeal by the defendant, Franklin M. Olds, from an order of the County Court of Sullivan county, entered in the office of the clerk of said county on the 11th day of September,’1905, denying the said defendant’s motion for a stay of proceedings. This action is pending in the County Court of Sullivan county for the foreclosure of a mortgage given May 5,1904, by the defendant Franklin M. Olds ,to the plaintiff.

Appeal by the defendant, The Village of FTelliston, from an order of the Supreme Court, made at' the Montgomery Special. Term and entered in the office of ■ the qlerk of the county of Montgomery on the 28th day of August, 1905,. -resettling an order of ■ reference entered in said clerk’s office on the 26th day of June, 1.905, and also from the said original order of reference. The action was brought to recover for plaintiff’s services as an attorney.

<p>Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.</p> <p>This is a submission of a controversy, upon facts admitted, pursuant to sections 1279 and 1280 of the Code of Civil Procedure. The Canal Commissioners of the State, pursuant to law, made a so-called lease, dated April 1, 1843, to Zenas Van Dusen and William Van Dusen of certain surplus waters from the Glens Falls feeder and dam, forming part of the canal system' of the State, the water to be taken and drawn from the dam at such places as the Canal Commissioners should deem most advisable for the security of the dam and the convenience of navigation of the feeder and canal. The commissioners reserved to themselves and to the Legislature the' right to limit and control or wholly resume the waters and all the rights granted, whenever in their opinion the safety of the dam and its appendages, or the necessary supply of water for the navigation of the canal and feeder, should render such limitation and control or resumption necessary, the said Van Dnsens “to pay to the Commissioners of the Canal Fund yearly, and every year hereafter, oil the first day of April in each year, the sum of One Hundred and five dollars,” being the appraised value of such surplus water, and they agreed to:pay the same. The said “lease” further provided : “ That if at any time the rent hereby reserved shall remain unpaid for one year after the same shall become due,- that this lease shall be 'forfeited to the State, and the said Commissioners may thereupon relet said surplus water to any other person in like manner as if no lease thereof had been executed.” The last payment of rental, it is conceded, was December 27, 1850, being to April 1, 1850. The said water was used to operate a mill of the. said Van Dusens abutting upon said feeder, and the defendant has succeeded by various mesne transfers and conveyances to said mill property and the rights of said Van Dusens under said.“ lease,” and the said mill and water has been so used by the defendant and his predecessors until about, two years ago, and since that time a custodian has remained in said mill, but it has not been operated. One O’Grady^ a section superintendent on the canal, put a new bulkhead in'the dam and closed the gates about two years ago, and after "the defendant "had stopped the operation of the mill; the stopping of the mill had no relation to the acts of said O’Grady, and the canal authorities took no action authorizing the action of said O’ Grady with-reference to closing said gates and putting in said bulkhead. The putting in of said bulkhead and the ^closing of the gates prevents the water being used at said mill if the defendant desired to use the same.</p>

Appeal by the plaintiff, Ira Blount, as administrator, etc., of Ira F. Blount, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Rensselaer on the 26th day of Jaúuary, 1905, upon the dismissal of the complaint by direction of the court after a trial at the Rensselaer Trial Term, and also from an order entered in said clerk’s office on the 30th day of January,'1905, denying the plaintiff’s motion for…

<p>Criminal law—obtaining money on fraudulent draft—Penal Code, section 528, construed — jurisdiction of Court of Special Sessions.</p> <p>The' defendant obtained a check on the promise to deliver immediately his own check for the amount, but failed to do so for several days, when he made payment of a balance due by the delivery of his own check with a statement that the same was good and that he had plenty of money in the bank. Such statements were false.</p> <p>Held, that the defendant was properly convicted of obtaining money by fraudulent draft under section 529 of the Penal Code;</p> <p>That said section, ,malting a person so obtaining money “ guilty of stealing the same and punishable accordingly,” read in connection with section 528 of the Penal Code, defining larceny, makes such act a crime;</p> <p>That a Court of Special Sessions had jurisdiction of such crime;</p> <p>That, as defendant had appeared, pleaded not guilty, had a trial and been convicted, it was too late to raise a formal objection to the information or the warrant;</p> <p>That, under the circumstances, no credit had been given to the defendant.</p>

<p>Tax Law — franchise tax on corporation operating apartment house — valuation of stock.</p> <p>A domestic corporation which owns and operates an apartment house situated in this State is employing its capital within the State and. is taxable on its franchise under section 182 of the Tax Law.</p> <p>When the stockholders in such company ,have leases of the apartments at rents much below the rental value, the benefit thus received is in lieu of dividends, and in determining the value'of the stock the real rental value may be considered.</p> <p>Though the allegations of the petition on certiorari to review a franchise tax on such corporation state that the leases can be sold and transferred without reference to the stock, and that the stock has no value without the leases, and that some of the leases have become disassociated from the stock, and such allegations are denied in the return, they will not be considered when no evidence of such facts has been given.</p> <p>'When the land cost §54,000 and the house §1^0,000, subject to a mortgage of §128,000, and there is a floating debt of §2,000 and §85,000 worth of stock is outstanding, and the assessed value of the realty is §275,000, a valuation of the stock of such corporation at §122,000 is not excessive.</p>

<p>Negligence ■— injury to passenger by flying stóne — verdict hot supported by evidence.</p> <p>The plaintiff, while riding through a rock cut on defendant’s ear had his arm broken, as he claimed, by being hit by a flying _ stone weighing six or eight pounds.. . The window was open and protected by a wire screen, the bottom of • which was. about- four and a half inches above the sill, add the top about a foot below the top of the window: At the time of the aceid en t a train was passing in the opposite direction oil a track between that "on which the plaintiff’s car was - moving and the rock cut, the- distance from the nearest part of his car to the surface of the rock cut being about eighteen feet. ' There was evidence that stones had sometimes fallen upon the track from the rock cut. A dent was found on the side of the car near the window where plaintiff sat. There was evidence that there was dirt, on his -arm >such as might have come from the stone. The screen was uninjured and the defendant’s evidence showed, no injury to the car. A companion of the plaintiff testified that after the accident plaintiff hadi said that his elbow extended out of the window, and there were various contradictory statements of plaintiff as to how the accident happened.</p> <p>Held, tha.t .while the fact that some part of plaintiff’s arm was out of the window did not constitute contributory negligence as a matter of law, and the. questions of the probability and improbability of the accident and of the contributory negligence were for the j ury, the strange nature of the accident as related by plaintiff and the circumstances of the case as shown by all the evidence threw so much doubt upon plaintiff’s version of the transaction that it could not be said that the verdict was fairly sustained by the evidence.</p>

<p>Motion by Albert P. Stevens, as committee of Esther Edwards, an incompetent person, to dismiss an appeal by Benjamin W. Knower, as special guardian of said incompetent, from a decree of the Surrogate’s Court of the county of Albany.</p>

Appeal by the plaintiff, the Village of Carthage, from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Jefferson on the 10th day óf [November,. 1905-, vacating a temporary injunction theretofore granted herein.

Appeal by the plaintiff, Allen M. Harbaugh, from an order of the Supreme Court, made at the Mew York Special Term and entered in the office'of the clerk of the county of Mew York on the 9th day of October, 1905, resettling an order entered in said clerk’s office on the 22d day of September, 1905, denying the plaintiff’s motion for a discovery and inspection of defendant’s books.

<p>Appeal by the defendant, The Bank of the State of- New York, from an-.order of the Supreme Court, made at the New York ,Trial Term. and entered in the office of the clerk-of the county of New York on the 1st day of March, 1905,. denying the defendant’s motion to set'aside a vdrdict rendered by direction -of the court in favor of tjie plaintiffs and for a new-trial of the action.,</p>

Appeal by the Village of Seewen from certain portions of a decree of the Surrogate’s Court of Hew York county, entered in said SuTr.ogate’s Court on the 12th day of 'July, 1905, judicially settling and allowing an executors’ account and directing distribution of the fund in the hands of the said executors.

<p>'' Appeal by the defendant, the Bahway Library Association, from a. judgment of the Supreme Court in favor of the plaintiffs and certain of the defendants, entered, in the office of the clerk of the . county of Hew. York on the 19th day of July, .1905, upon the decision. of the court rendered after a trial at the Hew York Special Term.</p>

<p>Complaint — broker’s action for commission — when complaint insufficient to authorize personal judgment against agent.</p> <p>In a broker’s action for commissions against a landowner and his attorney in fact, who was only authorized to take charge of and control the payment of ■ commissions, the complaint asked no personal judgment against such attorney in fact, but merely alleged that the owner made payments of a portion of the commissions to a person with whom the plaintiff had a contract to divide the commissions, and refused to pay the balance to plaintiff without the consent of such person.</p> <p>The relief asked was that the defendants pay to the plaintiff moneys found in their hands applicable to the purpose, and that if the sainé were insufficient to pay plaintiff's claim that he have .personal judgment for deficiency against the pérson with whom he had the contract to divide the commissions,- and that he have such other and further relief as may be just.</p> <p>Held, that.a personal judgment against said attorney .in fact was unauthorized under the complaint, as no such relief was asked. ‘</p>

Appeal by the plaintiff, Mary Baker, as administratrix, etc., of Adam Baker, deceased, from a judgment of the Supreme Court in favor of the defendant Charles Baker, entered in the office of the clerk of the county of New York on the 10th day of May, 1905, upon the decision of the court rendered after a trial at the New York Special Term dismissing the plaintiff’s complaint upon the merits, and directing the defendant insurance company to pay to the respondent the money in…

/ Appeal by the plaintiff, Marcella Sallie, as .administratrix, etc., of Patrick Robbins, deceased, from a judgment of the Supreme . Court in favor of the defendant, entered in the office of the clerk of the county of New York oh the 9th day of May, 1905, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case upon a trial at the New York Trial Term.

<p>Motion by the defendants, George W. Millar and another, for a new trial upon a case containing exceptions, ordered, to be heard at the Appellate Division in the first instance after a. trial at the FTew York Trial Term..</p>

<p>Negligence — injury to pedestrian by surface 'car — contributory negligence.</p> <p>The plaintiff ivas struck and injured by a surface car at a street crossing. At" the time of the accident one car was going north on the easterly track and one going south on the westerly track.- Plaintiff was crossing from east to west and it was undisputed that he saw both cars. The south-bound car was forty or fifty feet to the north when the plaintiff first saw it and was five or six feet from him when he stepped upon the track and was struck.'</p> <p>Held, that there was contributory negligence as a matter of law and that the plaintiff should have been nonsuited;</p> <p>That, though the negligence of the defendant was shown, it was immaterial, as the plaintiff’s negligence contributed to the injury.</p>

<p>Appeal by the plaintiff, The People of the State of Hew York, from an order of the Supreme Court, made at the Hew York Special Term and éntered in the office of the clerk of- the county of Hew York on the 4th day of April, -1905, vacating a judgment against Leo Friedman, surety, entered upon the forfeiture of .a recognizance. ■</p>

<p>Contract — when contract to buy buildings erected by lessee is "without consideration— estoppel — no estoppel created-by mistake • as to questions of lg,wi</p> <p>When the original "lease of property," on which "the-lessee. covenanted to build, contains an agreement by- the lessor to renew or buy. the buildings erected, and when after several renewals, with similar terms, a lease is executed which.contáins no covenant to "renew or purchase the buildings, but expressly provides that said lease is given in full discharge‘of all covenants and agreements .contained - in the lease immediately preceding,, a subsequent contract by the lessor to grant a further-renewal or to purchase the buildings upon the mere nominal consideration of one dollar is without consideration and unen forcible by the lessee] or her assignee. The lessor, having a right to the buildings ¡it the expiration of the last renewal lease, is bargaining to-buy her own property, and hence her promise to pay therefor is without consideration.</p> <p>There is no estoppel under such contract, as the parties have been misled only as , to matters of law, and no rights-of either were invaded.</p>

Appeal by the defendant, Carl Gr. Weidinger, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 14th day of April, 1904, uptin the verdict of a jury, and also from an order entered in said clerk’s office on the 13th day of May, 1904, denying the defendant’s motion for a new trial made, upon the minutes.

Appeal by the, defendant, Vincent W^Woytisek, from a . judgment of the Supreme Court in part in favor of the plaintiff, éntered in the office of the clerk of the county of blew York oh the 26tli day of April, 1905, upon, /the verdict of a jury and. also from am order entered nr-said, clerk’s office' on the 17tli day of May, 1.905, denying the said defendant’s .motion for a.new trial made upon the minutes.

Appeal by the defendant,- the Ocean Accident and Guarantee Corporation, Limited, from a judgment of the Supreme Court in ' favor of the plaintiff, entered in the office of the clerk of the county of. New York on the 28tli day of April, 1905, upon the verdict of a jury rendered by direction of the court after a. trial at.the New York Trial.

Appeal by the defendant, Henry Snyder, from a judgment of the Court of General Sessions of the Peace in and for the city and county of Hew York, rendered on the 2d day of May, 1905, upon the verdict of a jury convicting the defendant.of the crime of grand larceny.

• Appeal by Frank Emmons from-, a decree of the Surrogate’s Court of Hew York county, entered in said Surrogate’s Court on the 3d day of May, 1905-, admitting to probate as the last will and testament and roodiciV thereto of Frederick L. Emmons, deceased, two certain papers bearing date. respectively December 30, 1902, and May 16, 1904.' ' '

<p>Appeal by the plaintiff, Emanuel A. Busch, from an order of the Appellate Term of the Supreme Court, entered on the 15th day .of May, 1905, reversing a judgment of the Municipal Court of the city of New York in favor of the plaintiff; entered in. the office of the clerk of said court on the 2d-day .of February, 1905,. upon the verdict of. a jury'and dismissing the plaintiff’s complaint.</p>

<p>Attorney and client—attorney’s lien on settlement by client — right of client to settle without costs —when no lien for costs ■ attaches to settlement.</p> <p>An attorney has a lien upon the sum received by his client on the settlement of an action by said client. Such lien may be enforced against both the client and the party with whom he settles, and the attorney may proceed immediately against both without first exhausting his remedy against the client.</p> <p>In such action the client is a necessary party and if without the jurisdiction he may be served by publication.</p> <p>However, as the costs of an "action belong to the client, and as he may settle without costs if he desires, the attorney, after such settlement without costs, is not entitled to a lien for costs under a contract which gives him “ all costs and interest recovered or to which he may be entitled.”</p>

<p>Partnership — receiver, when appointed, to sell assets —• when appointment of receiver postponed pending litigation.</p> <p>When two actions are pending, one brought by the son of a deceased partner against the surviving partners to compel the specific performance of an alleged agreement by said deceased partner to give said son a share of the partnership assets, and the other brought by said surviving partners against the representa- , .lives of the deceased partner to obtain a decree .for the sale of 4he partner^ ship assets with leave to the. surviving partners to bid, a receiver should not be appointed until the determination of said issues, when the partnership assets are'not perishable in their nature and -it dues not' appear that a loss will accrue . by such postponement, • or that the "conduct of the surviving partners in conducting the business will cause: a loss, or that they, aré" not financially responsible. , . . . . ...</p> <p>It seems, however, that when such sale-bf the assets takes place., it should be under the direction of .a receiver and not a referee, if the surviving partners are to be allowed to- bid. . . ' ' - . .</p>

Appeal in each of the above-entitled actions by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court, in favor of the- plaintiff in each action, entered in the office of the clerk of the county of Sew York on the 6th day' of.

. ■ Appeal by the defendant, Edward F. Brush, as mayor of the city of Mount Vernon, fro$p an order of the Supreme ’ Court, made' at , the Kings County Special Term and entered in the office of the clerk-of the county of Westchester on the 24th day -of November, 1905, granting the relator’s motion for a peremptory writ df- mandamus

Appeal by the defendant, the Empire Life Insurance Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 7th ‘ day of December, 1904, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 16th day of December, 1904, as resettled by an order entered on the 30th day of December, 1904’, denying the defend ant’s motion for a…

<p>Municipal corporation — resolution of common council of former city of Brooklyn, giving consent to franchise—mandamus to compel president of borough of Brooklyn to allow gas company to connect mains.</p> <p>A resolution of the former common council of the city of Brooklyn purporting to confer a right upon a ga's lighting corporation to use the streets at a time when said common council had power tp confer such right, and which would be meaningless if given any other construction, must be taken as giving the required consent of said common council, and mandamus lies against the president of the present borough of Brooklyn to compel him to issue.and deliver permits to such gas company to connect gas mains.</p>

Appeal by the plaintiff, John Vincent, from a judgment of the. Supreme Court in favor of the defendant, entered in the office of ■ the clerk of the county-of Nassah on the 23d day of January, 1905, upon the decision of the court, rendered after a trial before the court without a jury at the . Nassau Trial Term, dismissing the complaint upon the merits. , ■

Appeal by the defendant, the Pulaski Polish Benevolent Society,' from a judgment of the Municipal Court of the city of Eew York, borough of Brooklyn, in' favor of the plaintiff, entered in the office of the clerk of said court on the 17th day of December, 1904.

Appeal, by the defendant, August F. H-. 0. Meyer, from, a judgment of the County Court of Kings county in favor of the plaintiff, .entered in the office of the clerk of the county of Kings on the 18th day of October, 1904, .upon the verdict of a jury for. $1,250, and also from, an 'order entered in said clerk’s office on- the 3d day - of November, 1904, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, The Fourteenth Street Store, from a judgment of the Municipal Court of the city of New York in favor of the plaintiff, entered in the office of the clerk of said court. ■ -</p>

Appeal by The Nassau Trust Company of the City of Brooklyn- and others from an order of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 17th day of November, 1905, denying the appellants’ motion to modify a decree theretofore entered in the proceeding fixing the transfer tax on the estate of George Backhouse,. deceased. , .

Appeal by the defendant, William McAdoo, as police commissioner, of the city of Hew York, from an order of the Supreme Court made at the Kings County Special Term and entered in the office of the clerk of the county of Kings- on the 25th. day of Hovémber, 1905, granting a peremptory writ of mandamus requiring the appellant to grade tile relator in the sixth grade in the police department as of and from July 13, 1905.

Appeal by the .defendants, John II. Coyne, as mayor of the city of Yonkers, and others, from an order of the Supreme Court, made at- the Queens County Special-Term and entered in the office of. the clerk of the county of Westchester on the 11th day of - January, ' 1906, granting the plaintiff’s motion for an injunction.

<p>Negligence — injury by fall on icy sidewalk — liability of the municipality—when ice proximate cause of injury though covered with snow — charge.</p> <p>When it is shown that the ice upon, which the plaintiff fell and was injured was allowed by the municipality to form from the discharge upon the sidewalk from a pipe in a supporting Wall of adjoining premises and to collect in ridges from two to four" inches thick across said sidewalk, and that the ice remained in such condition during the winter preceding the accident, a recovery is warranted, although at the time of the accident said ridges were somewhat increased in height by a light fall of snow. Such ridges of ice were themselves the proximate cause of the accident, although so covered with snow.</p> <p>The fact that the street had a steep grade at this point is immaterial and, if anything, cast upon the defendant a greater obligation to remove the ice.</p> <p>It is not error to charge that “ the. city is obliged to keep its streets in good, safe, passable condition.”</p> <p>Rich and Jerks, JJ., dissented, with opinion.</p>

Appeal by the defendants, Louis C. Hertz and others, composing the firm of “ George' Hertz’s Sons,” from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 12th day of April, 1904, upon the verdict of a jury foil $2,000, and also froth an order entered in said clerk’s office- on the 3d day of May, 1904, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendants, John Yanderveer and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 27th day of March, 1905, upon the verdict of a jury for $4,500, and also from an order entered in said clerk’s office on the 27th day of March, 1905, denying the defendants’ separate motions for a new trial made upon the minutes.

Appeal by the plaintiff, the New York Mutual Savings and Loan Association, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 20tli day of June, 1904, upon the report of a referee dismissing the complaint upon the merits.

Appeal by the defendant, the Brooklyn, Queens County and Suburban Railroad Company, from a judgment of the County Court of Kings county in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 21st day of February, 1905, upon the verdict of a jury for $325, and also from an order entered in said clerk’s office on the 21st day of March, 1905, denying the defendant’s motion for a new trial made upon the minutes.

■ Appeal by the plaintiff, Sarah Reary, as administratrix, etc., of Michael Reary, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of' the county of Dutchess on the 9th day of February, 1905, upon the dismissal of the complaint by- direction of the court at the close of the plaintiff’s case upon a trial at the Dutchess County Trial Term.

Appeal by the plaintiff, Baldassare Milicie, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the'county of Kings on the 24th day of February, 1905, upon the dismissal of the complaint by direction of the court after, a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 3d day of March, 1905, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Rolled Plate Met^l Company, from an interlocutory judgment of the Supreme Court in 'favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 28th day of July, 1905, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling the said defendant’s demurrer to the complaint-, on the ground that the complaint does not state facts sufficient to constitute a cause of action against…

Appeal by The Village of Port Chester, from an order of the County Court of Westchester county, entered, in the office of the clerk of the county of Westchester on the 29th day of April, 1905, denying an application to- confirm the report of the commissioners of estimate and assessment, and vacating the same, on the objection of Margaret S. Tlieall.

Appeal by the defendant, The Village of Port. Chester, from a judgment of the Supreme Court in favor of the plain tiff,, entered in the office of the clerk of the county of Westchester on the 11th day of February, 1905, upon the decision of the court rendered after a trial at the Westchester Special Term. Suit for specific performance- of a contract of purchase by the ■ defendant of the plaintiff’s land. .

Appeal by the defendant, Agnes L. O’Rourke, as executrix, etc., of John H. O’Rourke, deceased, from a judgment of the Supreme Cdurt in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 6th day of April, 1904, upon the report of a referee.

Appeal by the defendant, the Oontinnons Rail Joint Company of America, from a judgment of the Supreme Court in favor of the plaintiff entered in the office of the clerk of the county of Rensselaer on the 22d day of May, 1905, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 19th day of May, 1905, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendants, The City of Gloversville and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the' clerk of the county, of</p> <p>.Fulton ón the 14th day of September,- 1905-, upon the decision of" the court, rendered after a trial at the Schenectady Special Term, overruling the-defendants’ demurrer to the plaintiffs’ complaint, •.This action is brought for the conversion of'a "certain pension- " check, payable to the plaintiff Miller, for $282.80, and the proceeds*of said check to the extent of $152.41: It is -alleged in said com-" ■plaint that on or about the 1st day of Septetiiber, 1904, the defendr" ants took, retained and kept possession of said-check, and that they refused and neglected to deliver to her said check and the moneys' derived therefrom to the amount of $152.4Í, and that after demand by lier-on December 24,1904, the defendants withheld and deprived her of the proceeds of said check to the amount of .said $152.41," and have ever since kept and retained the same. " ■'</p> <p>The complaint further alleges that on or about the 23d day of May, 1905, and before the commencement of this action, the plaintiff Miller duly assigned -the said claim and cause of action as alleged in the complaint to the plaintiff Soules. The" complaint demands judgment in favor of the plaintiff Annie F. Soules for said amount of with interest from said 2J¡th day of December, 190f The defendants demurred to the complaint on the grounds :</p> <p>“ First. That the complaint does not state facts sufficient to . constitute a cause of action.</p> <p>“ Second. That it appears on the face of the complaint that there is a misjoinder of. parties plaintiff, in that the plaintiff .Sarah E. Alexander, now Miller, is improperly joined with the other plaintiff Annie E. Soules, because she is shown to have no cause of action jointly with her, Annje E. Soules, but that the sole cause of action set forth in the complaint is shown to be in .the other plaintiff-, exclusive of said Sarah E. Alexander, now Miller.”</p>

Appeal by the plaintiff, Mack Hánsón, from a judgment of the ' Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Fulton on the 16th day óf, June, 1905, upon the dismissal of the complaint by. direction of the court after a trial at the Fulton Trial Term. . ,

Certiorari issued .out of the Supreme Court and attested on the 9th day of August, 1905, directed to Otto Kelsey, as Comptroller of the State of Hew York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings had in refusing to resettle a franchise tax imposed upon the relator for the year ending October 31, 1904. „

Appeal by Frederick F. Pruyn, as committee of the person and property of De Witt G, Holland, an incompetent person, from an order of the Surrogate’s Court of the county of Warren, entered in said Surrogate’s Court on the-4th day of September, 1905, denying the appellant’s application for leave to open and vacate two decrees of said Surrogate’s Court, one dated June 21, 1904, and the other dated March 1, 1905, each purporting to settle the account of Henry A. Howard, as…

Appeal by the defendant, Edmund G. Eawson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Fulton on the 4th day of May, 1905, upon the decision of the court rendered after atrial before the court without a jury at the Saratoga Trial Term.

Appeal by the defendants, Lydia Jerome and another^ from an order of the Supreme Court, made at .the Fulton- Special Term and entered in'the office of the clerk of the county of Montgomery on the 31st day of August, 1905, directing the defendants to furnish a / bill of particulars. . | The plaintiff, by his amended complaint, al'leges that he recovered a judgment against the defendant Jerome in 1901 on a claim for groceries and provisions sold to her in 1896, arid…

■Appeal by the relator, Michael H. Eisrhan, from an Order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 14th day of Movember, 1905, denying the relator’s application for a peremptory writ of mandamus.

Appeal by the relator, Albert J. Hatch, from an order of the Supreme Court, made'at the Hew York Special ^erm and entered in the office of the clerk of the county of Hew York on. the 8th day of June, 1905, dismissing a writ of habeas corpus and remanding the relator to the custody of the defendant.

Appeal by the claimant, The Fl H. Mills' Company, from so. much of' a judgment of- the Court of Claims'of the State of Mew Y ork, in part in favor of .the claimant and in part in favor of the defendant, entered in said court on the 15th day of April, 1901, as. dismisses the claim’of the said company.

<p>Appeal by Wayland D. Tisdale, as executor, etc., of James A. ‘ Tisdale, deceased, from a decree of the Surrogate’s Court of the county of Cortland, bearing date the 14th day of April,1904, and entered in said Surrogate’s Court, confirming the report of a referee.</p> <p>This proceeding was commenced upon the petition of Sarah A. Tisdale, the widow of James A- Tisdale, to compel the executor of his will to render an account and to pay over to her the accumulated income of the estate. After the payment of certain legacies the widow was given under the will the use for life of the remainder of her husband’s estate, subject to the maintenance of two persons named in the will and the education of one of them, which provision was also given to her in lieu of dower and statutory rights in his estate.</p> <p>The appellant was the cousin of the testator and was named in the will as the executor thereof. After the payment of thq legacies and after the death of the wife the rest, residue and remainder of the estate was'given to the appellant absolutely. A power to'sell and convey all the testator’s real estate was given by the will to the executor as soon as he could get the fair market value thereof.</p> <p>The testator died on the 4th day of April, 1894. His will was admitted to probate on' the twenty-fifth day of June thereafter. He left, with other real/ estate, a grist mill which was operated at the time of his death by him in partnership with one T. L. Corwin, under the firm name of “ James A. Tisdale & Co.” The surrogate, on it appearing that there would be a delay of sever,al weeks in proving the will; that the partnership between Tisdale and Corwin expired on the 24th day of April, 1894, and that there was no person authorized to take charge of the mill property and keep the same from waste, appointed the appellant as temporary administrator of the estate for the purpose of taking charge of the said mill property and conducting the business therein during the time prior to the appointment of an executor under the will. The appellant as such temporary administrator filed an inventory of the mill assets, showing their amount to be $5,606.72. After the will was admitted to probate the appellant took possession of the estate as executor and filed an,inventory qf the personal property, showing the total valuation thereof to -be $21,766.09. This inventory contained an ( item showing the interest of the estate in the copartnership of J. A. Tisdale & Co. to be $5,222.76. The appellant operated the mill until January 1,1899. During such time he bought new machinery -and made extensive repairs. From the 1st day of January, 1899, to the 1st day of July, 1901, he leased the mill property at a rental of $50 per month. Upon the return of the citation to the executor to show cause why he should not be required to render an account of his proceedings as executor he appeared and on the 9th day of July, 1901, filed his accounts in which he admitted that he had received assets of the estate amounting to $28,209.39, and in which he credited ' himself with $28,721.49, showing the estate to bé in debt to him in' the sum of $512.10, without taking into account any commissions to which he might be entitled. Every item thereof was objected to by the petitioner. The issues raised by such objections were referred to a referee. The referee thereafter , made his report and upon a motion to confirm the same before the surrogate, by consent of the parties, further evidence was taken to be considered by the surrogate in, aid of the report of - the referee. The surrogate made a decree which modified, and as modified confirmed, the report of the referee. By the decree it was adjudged that the executor should be ■charged with the sum of $28,593.35 and credited with the sum of $23,784.45, leaving in the hands of the appellant belonging to the estate the sum of $4,808.90, upon which amount he was charged interest from July 1, 1901. From the decree so made this appeal is taken.</p>

<p>Appeal from an order granting a motion for a bill of particulars.</p>

<p>Appeal-from an order denying a motion to vacate an order for the examination of appellants before trial.</p>

<p>Appeal from an order granting, a motion for a bill of particulars.</p>

<p>Appeal from order denying motion fbr appointment of receiver. . _.</p>

<p>Appeal from order granting respondent’s motion to intervene.</p>

<p>Appeal from an order.denying'a motion for leave to renew an application to,interpose,a supplemental answer.</p>

<p>• jExamination lefore trial—oi'der therefor modified: ■</p>

<p>Appeal , from judgment overruling demurrers to two separate'defenses in the answer. ■</p>

<p>Appeal from judgment, entered upon verdict of jury and from order denying motion for'new trial.</p>

<p>Contract — evidence showing date of breach thereof considered.</p>

<p>Judgment affirmed, with costs, on opinion in Genet v. President, etc.,1). & H, O. Co., No. 7 (71 App. Div. 613).</p>

<p>Appeal from judgment of the Court of General Sessions.</p>

<p>Appeal from judgment entered on verdict and from order denying motion for new trial.</p>

<p> Will—probate refused for testamentary incapacity. </p>

<p>Ejectment — when ownership and right to possession of lands insufficient to sustain fjectment.</p>

<p>Appeal from an order setting aside a verdict. '</p>

<p>Children — order designating institution to take custody of illegitimate child.</p>

<p>Appeal by defendants from a judgment in favor of the plaintiff entered upon a verdict directed by the court after a verdict on special issues submitted to. the jury and from an order denying their motion for a new trial.</p>

<p>Appeal from judgment entered oh verdict.</p>

<p>Appeal from portion of a-judgment entered on report of a referee.</p>

Appeal by the defendant from a judgment of the Supreme Court, entered in the clerk’s office of New Y’ork county on the 86th day of June, 1905, upon the verdict of a j ury, and from an order entered in sai'd office on the ,23d day <of June, 1905, denying a motion, for a new trial. ' • i

office of the clerk of said county on the 26th day of January; 1905, denying a motion ■ for a peremptory writ of mandamus.

Appeal by the defendants from a judgment of the Municipal Court of the city of New York in favor of the plaintiff, rendered on the 28th day of November, 1904. ' ;

<p>Judgment and order affirmed, with costs; no opinion.</p>

<p>Limitation of action on insurance policy —■ Statutory Construction Law — application to private contracts—final Sunday, hole treated in computing a period, of months. '</p>

While the evidence in this case may be slight, we think there was sufficient to ' carry the case to the jury on the question of the liability of the respondent to pay the plaintiffs’ claim, and that a nonsuit was accordingly improper. Judgment and order reversed and new trial granted, costs to abide the final award of costs.

<p>Negligence — injbry'while .alighting, from car — verdict against weigT.it. of evidence.</p>

<p>Demurrer — complaint alleging subscription for stock induced by fraud — demurrer thereto overruled.</p>

We do not think the occupant of real estate should be ejected on proof furnished by surveys, which it seems were not satisfactory to the trial court, .and are not regarded as satisfactory by this court. Judgment reversed and new trial granted, costs to abide the event.

We regard the order appealed from in this case as an order to show cause and, therefore, not appealable. (See Code Civ. Proc. § 2679.) The appeals are dismissed, without costs, and the proceedings remitted to the Surrogate’s Court of Westchester county for final disposition.

<p>Trust — liability of surviving trustee for conversion of securities by co-trustee.</p>

Appeal by the defendants from a judgment of the Supreme Court, entered in the office of the clerk of Westchester county on the 12th day of January, 1903, in favor of the plaintiffs.