Volume 111 — New York Appellate Division Reports

Appeal by the plaintiff, Allen B. Flanders* from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Franklin on the 11th day of March, 1904, upon the decision of the court, rendered after a trial before the court without á jury at the Franklin Trial Term, dismissing the complaint upon the merits.

Appeal by the defendant, the Fonda, Johnstown and Gloversville Eailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Montgomery on the 27th day of June, 1905, upon the verdict of a jury for $125, and also from an order entered in said clerk’s office on the 30th day of June, 1905, denying the defendant’s motion for a new trial made'upon the minutes.

Appeal by the'defendant, Scott Partridge, from a judgment -of the Supreme Court in part in favor of the plaintiff and against. the said defendant, entered in the office of the clerk - of the county of Fulton on the 28th day of June, 19Ó5, upon the verdict of - a jury,: the- complaint being dismissed by direction of the court as to the other defendants. - -'

Appeal by the plaintiff, Ruby Anna Vines, from--a. judgment of the Supreme Court in favor' of the defendant Clarke, entered in the office of the clerk óf the county- of Saratoga on -the 28th day of March, 1905, upon the decision of the court rendered after' a trial before the’court without a jury at the Saratoga Trial Term. i The action is for ejectment.

<p>Appeal by the. defendant, Martin Dewey, from a judgment of the Supreme.Court in favor of the plaintiff, entered in the office of the clerk of the county of Clinton on the 3d day of January, 1905, upon the decision of the court rendered after a-trial before, the court without a jury at the Clinton-Trial Term.</p> <p>On the 2d day. of November, 188.9, Wallace Dewey and his wife executed and delivered a bond and mortgage for $332, with interest, to-one Daniel Keese, the mortgage covering a tract of sevéntyfive acres of land-.There was due and unpaid thereon at the date of "the decision $585.92. Afterwards Daniel Keese died and 'his administratrix assigned the bond and mortgage to the plaintiff herein. Prior to the giving of said mortgage and on' the 17tli day. of November, .1885, the mortgagors, Wallace Dewey and his wife, deeded the_premises described in the mortgage to their daughter, the defendant Ellen Dewey,, for an alleged consideration of $1,000. At the time they executed and delivered said bond and mortgage they- had no title, to the premises covered by the mortgage, Upon the 2d day of November, 1889, the same day of the giving of the mortgage hereinbefore mentioned, a mortgage given by Wallace Dewey and his wife and Martin Dewey to said Daniel Keese, dated August 2, 1879, for $277.50, with interest thereon, was satisfied of record. Said mortgage so satisfied covered said seventy-five acres of land and also another tract of one hundred acres and a further tract of fifty acres. The mortgage, dated August 2, 1879, became by its terms due and payable August 2, 1881. On August 2, 1889, the interest was paid on said last-named mortgage and at that date said mortgage had. been reduced by the payment of principal and interest, leaving a balance of $100 of principal due. Said sum of "$100, together with $1.75 of interest thereon, formed a part of the consideration for the new mortgage dated November 2, 1889. Prior to the commencement of the action said Wallace Dewey and his wife died intestate, leaving as their sole heirs at law and next of kin the defendants Martin Dewey,. Ellen Dewey, Patrick Dewey and John Dewey. The court on the trial found the foregoing facts. It also found that the satisfaction upon November 2, 1889, of the mortgage dated August 2, 1879, and the giving of the mortgage of November 2, 1889, formed a part of the same transaction; that the plaintiff had succeeded to all the -rights of her father, Daniel Keese, the original mortgagee in the mortgages mentioned ; that the mortgage of November 2, 1889, was void, as the mortgagors had no title'to the premises at the time of the giving of the same and that the plaintiff1 was entitled to be subrogated to the security, of the mortgage of August 2, 1879, and to have its discharge canceled and its liens restored, and the court directed a foreclosure of the mortgage of August 2, 1879, as to all the real estate covered by the mortgage, which at the time of the filing of the lis pendens in this action was in the hands of the original mortgagors, or their heirs, namely, of said one-hundred-acre tract and said fifty-acre tract. There was also a finding that there was due on the mortgage of November 2, 1889, the sum of $585.92; that of that amount the sum of $101.75, with interest from November 2, 1889, viz., $193.63, was'the sum remaining due on the mortgage of August 2, 1879, for which amount the plaintiff is entitled to judgment. From the judgment entered upon such decision the defendant Martin Dewey has appealed. Further facts are stated in the opinion.</p>

<p>Negligence — injury by set screw in revolving shaft — unsafe place to work — evidence of prior accident — extra allowance improper.</p> <p>The plaintiff, sent to repair, an elevator, in stepping over a revolving shaft was caught by a set screw projectiug one and a quarter inches from the shaft and was injured. The set screw was not covered and the plaintiff had not been warned thereof. The place was dark and plaintiff was working with a hand lantern. He gave evidence of due care. It- was shown that other employees were required to go to said place to make repairs, and that one of them had previously been caught by the same set screw, of which fact the defendant had notice.</p> <p>Held, that the question as to whether the defendant had provided a safe place to work was for the jury;</p> <p>That a verdict for the plaintiff was warranted by the evidence;</p> <p>That, under the circumstances, the risk was not obvious;</p> <p>That proof of said prior accident from same cause was proper;</p> <p>That an extra allowance was improper.</p>

<p>Attorney and client — power of surrogate to order reference to determine amount of attorney’s compensation for services to executors —personal judgment not authorized in such proceedings.</p> <p>A surrogate has power, under section 66 of the Code of Civil Procedure, upon • petition, to determine the value of services rendered by an attorney to executors and'to charge the same as a lien upon the estate. To that end he may appoint a referee to take testimony and report the value of said services.</p> <p>Although executors are primarily personally liable for the services of an attorney, yet such services, when necessary, are chargeable as a lien upon the estate.</p> <p>The Appellate Division will confirm the findings of such referee and surrogate as to the value of such services when the findings are not against the weight of the evidence.</p> <p>When it is found by the surrogate that the services of an attorney are chargeable as a lien upon the estate there is no authority to direct a personal judgment . and execution against the executor as in a common-law action.</p>

<p>Liquor Tax Law-?-when certiorari refused" to review right of Commissioner of Excise to make enumeration of inhabitants of city and to increase cost of liquor tax certificate.</p> <p>Certiorari will not lie to "determine the right of the. State Commissioner of Excise Jo take au enumeration of the inhabitants of the city of Schenectady,, pursu- ", ant.to section 11 of the Liquor Tax Law, and to increase the cost of liquor tax ■ certificates in said city, when, since the issue of said-writ, a State, census of the inhabitants of sáid city has been taken, and the relator.paid the increased sum without a demand that the certificate issue ■ at the former cost, but with a mere protest at said increased cost.</p> <p>The acts .of the State Commissioner of Excise in making such enumeration" and in certifying to the county treasurer the -increased -cost of licenses were not such final determination of the rights of .a relator paying said increased cost as entitles him to a common-law certiorari to review such acts.</p>

Appeal by the defendants, Edward Tracy Scovill and another, as executors, etc., of John Hyland, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Steuben on the 26th day of May, 1905;-sustaiñing a demurrer to two defenses contained in the answer.

Appeal by the plaintiff, Hugh H. Senior, from, an order of the) Appellate Ter-m of the Supreme Court, entered in the office of the clerk of the county of New York on the 26th day of June, 1905, as resettled by an order entered in said clerk’s office on the 16th day of August, 1905, affirming a judgment of the Municipal Court of the city of New York in favor of the defendant, dismissing the complaint upon the merits,

<p>Specific performance -- when prior false representations of' plaintiff - waived by defendant— when promise to assign mortgage shown by promise to deliver same—adequate remedy at law not pleaded — tender— when plaintiff not bound ,to accept offer to return consideration.</p> <p>When, in an .action for the specific performance óf a contract to assign a mortgage, it is Shown that though the defendant had made A former agreement to execute releases of said mortgage on the false representation óf the plaintiff * that he was the owner of 'the mortgaged premises, the defendant, subsequent to the discovery of the fraud, has agreed .to assign the mortgage And has accepted the consideration, there is a waiver of the prior fraud of the plaintiff and he is entitled to specific performance or damages for a breach of contract.</p> <p>A .promise by the holder of .a mortgage on delivering a release thereof that he will -also deliver the .bond and mortgage when he finds it, is an agreement .to assign the same, for title to a bond and mortgage can pass by delivery: "■ ’</p> <p>In. an action, for specific performance, the defense .that the. plaintiff has an - adequate remedy at law must be pleaded to be available.</p> <p>In such action the plaintiff is not pound to accept a tender by the defendant of the consideration paid, but may . insist upon specific performance or damages for the breach of the contract..</p>

Appeal by the plaintiff, Simon Uhlfelder, from a judgment of the Supreme Court-in favor of the defendant, entered in the office of the clerk of the county of Mew York on the 15th day of Movember, 1904, upon the decision of the court, rendered after a trial before the court without a jury at the Mew York Trial Term, dismissing the complaint upon the merits.

Appeal by the plaintiff, Perey S. Hildreth, from a judgment of the Supreme Court in favor, of the defendant,,entered in the office of the clerk of the county of Hew York on the 5th day of July, 1905, upon the verdict of a jury rendered by direction of the court after a trial at the Hew York Trial Term.

Appeal by the defendants, Otto Wagner 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 30th day of March, 1905, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of April, 1905, •denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, Addie Woodhoüse, from a judgment ■ of the Supreme Court in favor of the plaintiffs, entered in the,office of the clerk of the county of Hew York on the 31st day of March, 1905, upon the decision of the court rendered' after a trial at the New York Special Term. ■

Appeal by the plaintiff, Martha Stronge, from, a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of .ÍSTew York on the 7th day of July, 1905, upon the decision of the court, rendered after atrial before the court without a jury at the New York Trial Term, dismissing the complaint upon the merits.

<p>Chattel mortgage — on default mortgagee must take possession or refile mortgage—when proof of taking possession sufficient — conversion by sheriff selling under execution —when surety who indemnifies sheriff liable to mortgagee. 1 ’</p> <p>The owner of a chattel mdrtgage not in possession of the property must, when the debt becomes due, either refile his mortgage or take possession of the property in order to protect himself against levy by a judgment creditor of the mortgagor.'</p> <p>Though on default of the mortgagor the title vests in the mortgagee and the mortgagor has. only an equity of redemption, the mortgagee to protect his titlti must take possession.</p> <p>When the mortgaged property consists of machinery situated in a building leased-by the mortgagor, whose lease has expired, except as such mortgagor holds over as monthly tenant, a taking of possession by the mortgagee is established when it is shown that he. demanded payment, which was refused, went to the room and claimed the machinery as his, secured a lease of the room containing the machinery from the owner, and employed and paid persons to operate the machinery in finishing up orders.</p> <p>When such mortgaged property has after default-and such possession by the mortgagee been sold by the sheriff under levy'by a judgment creditor of the mortgagor, a surety who has indemnified the sheriff is liable for the conversion, although the original levy was made before the bond of indemnity was given.</p>

<p>Contract of employment on commission — contract construed in light of existing conditions—when plaintiff entitled to commissions on sale of goods removed from his control.</p> <p>A contract of employment for a fixed time which gives to the plaintiff certain commissions on the sales of “ cloaks and suits now known as Departments bios. ■21 and 18” entitles such plaintiff to commissions on cloaks and suits which at the time of contract were sold in these departments! but which during Ore term of the contract were transferred by the defendant to other departments. Such contract must be interpreted in view of the conditions existing at the time of contract.</p> <p>A plaintiff is not precluded from asserting his rights under such contract by not objecting to the transfer of portions of said goods to other departments.</p>

Appeal by the defendant, the'Watson Page Lumber Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of. the clerk of the county of Franklin on the 20tli day of March, 1905, upon the verdict of a jury, and also from an order entered in said clerk’s- office-on the 18th day of March, 1905, denying the defendant’s motion for a new trial made upon the minutes.

Appeal .by the defendant, John G. Seager,.from a judgment of the Supreme Court in favor of the plaintiffs/entered in the office of the clerk of the county of Cortland on the éth day of May, 1905, upon the verdict of a jury rendered by direction of the court after - a trial at the Cortland Trial Term, and-also from an order entered in said clerk’s office on the 18th -day of April,. 1905, denying the - defendant’s motion for a new trial made, upon the minutes.

Appeal by the defendant, The Hew York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 7th day of April, 1905, upon the verdict of a jury for $6,000,' and also from an order bearing date the 3d day of April, 1905, and entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, the Hudson River Telephone Company and another, from a judgment of the Supreme -Court in favor of the plaintiff, entered in the office of the clerk of the .county of Fulton on the 15th day of June., 1905¿'upo.n the verdict of a jury for $11,000, the amount having been reduced by consent from $14,000, and also from an order entered in said clerk’s office on the 10th day of.July, 1905, denying the defendants’ motion for a new-trial made .upon the…

Appeal by the defendant, Isaac Frank, from so much of an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of file county of Hew York on the 12th day of December, 1905, as denies the said defendant’s motion to strike out certain allegations of the complaint as scandalous and irrelevant and to make the said complaint more definite and certain. The complaint alleges: “ 1.

Appeal by the plaintiff, the. Owego Gas- Light C'onrpany, from á judgment of the -Supreme Court in favor of the pláintiff, entered in the office of the clerk of the county of Tioga on the 15th day of March, 1905, upon the decision -of the court, rendered- after a trial at the Tioga Special Term. - .

<p>Negligence -— injury by fall of scaffold — Employers’ Liability Act — liability pf master for servant exercising superintendence — continuing duty to keep structure safe — freedom from contributory negligence.</p> <p>When the evidence shows that the scaffold which fell and injured the plaintiff was • originally constructed by the plaintiff and his fellow-servants in a safe manner, hut became unsafe by reason of the removal of a supporting pier under the direction of a person in the service of the defendant exercising superintendence within the meaning of the Employers’ Liability Act, a recovery by the plaintiff is not barred on the theory that the negligence is that .of a fellow-servant.</p> <p>Though the- scaffold was originally safe, it was still the duty of the defendant to maintain it in such condition.</p> <p>The plaintiff is not guilty of negligence as a matter of law,-although he heard an order given to take down the supporting pier, as he is entitled to assume that - defendant will discharge his continuing duty to keep the scaffold safe, unless the omission to do so were obvious and actually, known to the plaintiff.</p>

Appeal by .the plaintiff, Edwin Watson Knickerbocker, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Mew York on the 27th day of October, 1905, upon the decision -of the court, rendered after a trial at the Mew .York Special Termr sustaining the defendant’s demurrer to the complaint.

<p>Tax Law&emdash;inheritance tax on property of non-resident &emdash; when trust, funds passing under power of appointment taxable &emdash; whén legacy not taxable.</p> <p>When a non-resident testatrix makes a bequest of property within this State ■ which came to her as the corpus of a trust estate of-which her husband was beneficiary, and over which he had a power Of disposal, the same is subject to a transfer tax under the Laws of 1887, chapter 718, and the Laws of .1891, chapter-315, therein force, because on the exercise Of the power >of disposal .the wife’s title relates hack to the instrument creating the trust, and her title is absolute on the death of the beneficiary. '</p> <p>But property within this State which came to such non-resident testaVi-.x as residuary legatee of her nonresident husband, whose will was not admitted to probate until after the death of said testatrix, is not prbperty within this State under the meaning of the act aforesaid,, and hence is not subject to taxa- ■ tion, because the right of the testatrix as, such residuary legatee was not. a right to any particular property, but a right only to an undetermined balance due after payment of debts and expenses of administration. , •</p>

Appeal by the plaintiff,, Leo Schlesinger, as receiver of the Federal Bank of Yew York, from an order of the Supreme Court, made at the Y.ew York -Trial Term arid entered in the office of the clerk Of the county of Yew York on the 26th day of ¡December, 1905, granting the plaintiff’s application for a preference.

<p>Municipal corporations---not liable for salary of de jure officer while place filled by another — unnecessary for defendant to show which particular de factó app'ointeé filled plaintiff’s place after his dismissal.</p> <p>■ A police Officer who has been reinstated by the court after a dismissal from the Police force cannot recover from the municipality the amount of his salary dur.ing.the period of dismissal when the quota of police officers was full and the city has paid the salary to another de facto incumbent of the office; this on the policy that the city.shall not pay twice for the same service.</p> <p>The fact that the city cannot point out which of three persons appointed to fill-vacancies after the plaintiff’s dismissal was actually appointed in the plaintiff’s place furnishes no ground for liability.,.; '</p> <p>Ho'dghtoN, J., dissented.</p>

Beargument of an appeal by the defendants, The Hew'York a j, Harlem Bailroad Company and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Hew York on the 8th day of July, 1901, upon the decision of the court rendered after a trial at the Hew York Special Term. In June, 1903, a decision was rendered in this and four similar cases reversing the judgments and ordering new trials (84 App. Div. 637).

. Appeal by the defendant, The Edison Electric Illuminating 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 4th day of May, 1905, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 5tli day of May, 1905, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Isaac Davidson, from a judgment of . the Supreme Court in favor of the plaintiff, entered in the office of the cleric:bf the county of New York on.the 20th day of June, 1905, upon the decision of the court rendered after a trial at the ■ New York Special Term.

Appeal by Aaron Cohn, as executor, etc., of Solomon W. Ashheim, deceased, from a decree of the Surrogate’s Court of the county'.of Mew York, entered in said Surrogate’s Court on the 1st day of Movember, 1905, directing him to file an accounting of his proceedings as such executor. '

Appeal by tile defendant, the David Stevenson Brewing Company, from a judgment of tlie Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 30th day -of June, 1905, upon the verdict of a-jury, and also from an order entered in said clerk’s, office on the 26th day of June, 1905, denying, the defendant’s motion for a new trial* made upon , the minutes.

Appeal by thé defendant, Gertrude Victoria Fennessy, 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 8tli day of January, 1906, granting the plaintiff’s motion for a preference.

Appeal by the defendants, The New York,Life Insurance Company and others, from an orde'r of the Supreme Court, made at the ¡New York Special Term and entered in the office of the clerk of the county of New Ybrk on the 4th day of January, 1906. '

'Appeal by the defendant, Joseph Wander, 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 25th day of April, 1905, upon the decision' of the court, rendered after a trial' at the New York Special Term, annulling the marriage of the plaintiff and the defendant.

Appeal by the defendants, The Security Trust and Life Insurance Company and others, from a judgment of the Supreme Court in favor of the plaintiff and the defendant Óvitt, entered in the office of the cleric of the county of New York on the 9th day of March, 1905, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendant, Hugh J. Grant, 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 14th day of November, 1905, continuing during the pendency of the action a temporary injunction theretofore granted.

Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure. The plaintiff is a municipal corporation organized. under special charter, viz., chapter 615 of the Laws of 1894, and the acts amendatory thereof.. - On the 17th day of May, 1905, the Legislature, of this.

<p>Chattel mortgage—when not paid by delivery of defective real mortgage in lieu thereof. '</p> <p>When a chattel mortgage executed by the plaintiff provides that he is to assign to the mortgagee a mortgage on certain real estate in lieu of the chattel mortgage, and the real estate mortgage subsequently assigned does not cover all the premises specified, and when on the discovery of said defect in the latter mortgage the chattel mortgagor agrees-to pay the balance unpaid by the foreclosure of the same and said chattel mortgage is not redelivered to the mortgagor, the"real estate mortgage is not substituted for the chattel mortgage and the same is still a lien upon the personal property and may be foreclosed by the mortgagee.</p>

Appeal by the plaintiff, James Clarence Sinclair, 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 13th day of January, 1905, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term.; also from an order entered in said clerk’s office on the lltli day of January,-1905, denying the plaintiff’s motion for a new trial, and also from an order entered…

Separate appeals by the defendant William H. Male and by the defendants Siegmnnd J. Bach and others from a judgment of the Supreme Court in favor of the plaintiff and against the said defendants, entered in the office of the clerk of the county of New York on the 14th day of January, 1904, upon the report of a referee, as amended by an order entered in said clerk’s office on the 9th day of May, 1904, with notice of an intention on the part of the defendant William H. Male to…

<p>Appeal by Edgar H. Curtice and others, as' executors, etc., of Simeon G. Curtice, deceased, and another, from certain portions of an order of the Surrogate’s Court of the county of Monroe, entered in said Surrogaté’s Court on the 26th day of July, 1905, assessing the inheritance tax due upon the estate of the said decedent.</p>

Appeal by the plaintiff, Joseph F. Terriberry, 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 4th day of October, 1905, as modified by an order entered in said clerk’s office on the 30th day of January, 1906, granting the defendant’s motion to have the trial had herein declared a mistrial and to set aside the verdict rendered in favor of the plaintiff.

Appeal by the plaintiff, Julius Tishman, 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 14th day of November, 1905, granting the defendant’s motion to cancel the Us pendens theretofore filed in the action, upon giving an undertaking.

Appeal by the defendant,. ETaoini S'. Boiler, .and'by the corespondent, Theodore E- Lawton, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the County of ETew -York on the 24th day of Hay, 1905, Upon the decision of the court rendered after a trial at the ETew York Special Term granting the plaintiff ah absolute'divorce, with notice of an intention by the said Lawton tó bring- up for review upon such appeal…

. Appeal by the defendant, the Manhattan Bailway Company, from a judgment .of the Supreme Court in favor of the plaintiff, entered in the office of the clerk .of the county of Bew York on the 17th day of May, 1905, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 15th day of May, 1905, denying the defendant’s motion for a new trial made Upon the minutes.

Appeal by the defendant, Charles H. Woerner, from a jndg-. ment of the Municipal Court of the city of Mew York, entered in the office of the clerk of said court overruling a demurrer to the complaint.

Appeal by the defendant, The City of Me.w York, from a judgment of the County Court of Queens county in favor of the plaintifT, entered in the office of the clerk of the county of Queens on the 10th day of June, 1905, upon the decision of the court rendered after a trial before the court without a jury.

Appeal by the defendant, Anton Schultz, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 8th day of May, 1905, upon the verdict of a jury. ‘ ' The- action was to recover' .$10,000 and interest alleged to have been paid by the plaintiff to the defendant in installments between February 1, 1895, and January 10, 1899, on an option to,.purchase real property of which he was tenant of the defendant, .

Appeal by the defendant, the Hew York Evening Journal Publishing Company, - from a judgment of the Supreme Court in favor of the plaintiff, entered^ in the office of the clerk of the county of Hew -York on the 2d day of February, 1905, upon tire verdict oí a jury; and also from an order entered in said clerk’s office on the ,25th day of January, 1905, denying the defendant’s motion for a new trial made'upon the minutes. ■ ' ,

Appeal by the plaintiff, Selma Wallach, 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 7tli day of July, 1902, 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 defendants, the Centra,! National Realty and Con- . st ruction Company 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 15th day of January, 1906, denying the defendants’- motion to cancel the notice o.f pendency of action herein. • ;

Appeal by J. Montgomery Strong, as executor, etc., of Elizabeth L. Strong, deceased, from a decree of the Surrogate’s Court of the county of Hew York, entered in said Surrogate’s Court bn the 3d - day of April, 1905,- adjudging him in contempt.

Appeal by The City of Hew York from an order of the Supreme Court,-made at the Hew York Special Term and entered in the office of the clerk of 'the county, of Hew York on the 3d day of March, 1904. ■

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

Appeal by the plaintiff, Jennie W. Babcock, from an order of -the Supreme Court, made -at the Kings County Special Term and éntered ip. the office of the clerk of the county of Queens on the 10th day of October, 1905, vacating an injunction, restraining the defendants from selling or disposing of certain real estate described in the complaint.

<p>Appeal by the defendants, The President and Trustees of the Village of Ossining, from a judgment of the County Court of Westchester county in favor of the plaintiff, entered in tlie office of the clerk of tlie county of Westchester on the 1st day of July, 1905, upon the verdict of a jury for $200, and also from an order entered in said clerk’s office on the 31st day of July, 1905, denying the defendants’ motion for a new trial made upon the minutes.</p>

Appeal by the defendant, George C. Tilyou, 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 30th day of March, 1905, upon the verdict of a jury rendered 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 6th day of April, 19.05,. denying the said defendant’s motion for. a new trial macle upon the minutes.

<p>Appeal by the defendant, Mary Ann Rairden, from a judgment of the County Court of Queens county in favor of the plaintiffs, entered in the office of the clerk of the county of Queens on the 26th day of April, 1905, upon the verdict of a jury rendered by direction of the court.</p>

- Appeal 'by the plaintiffs, Jacob Winter and anothfer, from a judgment of the MnnicipalvCourt of the city of Hew York, borough of Brooklyn, in favor of the defendant,-entered in' the office of the clerk of said court on the 3d day of -February, 1905, dismissing the complaint upon the merits. - - ■

<p>Beal property — action for damages for injury to value thereof by elevated railway — measure' of damages.</p> <p>Although a plaintiff cannot recover damages in an action for injury to the rental value of land’s caused by the erection of an elevated railway when it is shown that the erection of the railway increased the value of the property, yet a recovery is proper when it is shown that the increased value of the premises resulted from other causes, as the building of a bridge, a subway, improvement' of the locality, etc. . .</p> <p>Under such circumstances an award of damages is not inconsistent with the finding that the property has been benefited by the elevated railway, if in other respects the value of the premises has .been decreased. The .damage is the excess of the injury caused over the benefits received.</p> <p>However, as the value-of the easements of such owner in light and air, if any, is nominal, it is reversible error for the court to malee an award taking the same as of substantial value, and such.an erroneous valuation is shown by a refusal, to find that such easements, if any, and the damage thereto are of nominal value.</p>

Apbeal by the defendants, Charles L. Feltman and another, 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 19th day of October, 1905, denying the defendants’ motion to vacate a previous order for their examination before trial.

Appeal by the plaintiff, Jesse W. Reno, from a judgment of-.the Supreme Court in' favor of the defendants, entered in .the office of the clerk of the. county of Kings on the 18th day of March, 1905,. upon the dismissal- of the complaint by. direction of the court after a trial at the Kings County Trial Term.

Pitts, sheriff of Albany county, on the ground of the alleged insufficiency of the certificate of conviction by which he is held.

Pitts, as sheriff of the county of Albany, on the ground of the alleged insufficiency of the certificate of conviction by which he is held.

Appeal by The Comptroller of the State of Hew York from a decree, entered in the Surrogate’s Court of the county of Westchester, in reference to a transfer tax upon the estate of Wager J. Hull, deceased.

Appeal by the defendants, George Oordtineyer 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 Richmond on the 9th day of January, 1905, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 12th day of October, 1904, denying the said defendants’ motion for a new trial made upon the minutes.

Appeal, by the plaintiff, Mary Pymm, 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 10th day of February, 1904, upon the dismissal of the complaint by direction of the court after a trial at the Kings County-.Trial Term, ahd also from an order entered in said clerk’s office tin the 9th day of March, 19Ó4, ' denying the plaintiff’s' motion for a new trial made upon the minutes.

Appeal by the plaintiff, Mary Lomas, from, a judgment of the Supreme Court in favor-of the defendant, entered-in the office of the .clerk of the county of Nassau on the 15tli day of March, 1905, -upon' the dismissal of the complaint by direction of the court after á trial at the Nassau Trial Term.

Appeal by Henry M. Whitehead from an order of the Supreme Court made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 13th day of June, 1-905.

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 January, 1905, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the 20th day of January, 1905, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiffs, William A. Leggett and others, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Orange on the 14th day of April, 1905, upon the dismissal of the complaint by direction of the court after a trial at the Orange Trial Term, and also from an order entered in said clerk’s office denying the plaintiffs’ motion for a new trial made upon the minutes. Action for the price of goods sold.

Appeal by the defendant, The Board of Education of the City 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 Kings on the 6th day of March, 1905, upon the verdict of a jury for $4,000, and also from two orders entered in said clerk’s office on the 9th day of March, 1905, respectively, denying the said defendant’s motion for a new trial made upon the minutes, and granting. the.' plaintiff’s motion…

Appeal by the defendant, The Bichmond Light and 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 30th day of November, 1904, upon the verdict of a jury for $40,000, and also from an order entered in said clerk’s office on the 9th day of December, 1904, denying the defendant’s motion for a new trial made upon the minutes. ¡

Appeal by the plaintiff, the Thompson-Starrett Company, from • a judgment of the Supreme Court in favor of the defendant, -entered in the office of the clerk of the county of Kings on the 6th day of ■May; 1905, upon the decision of the court rendered after a trial at the Kings County Special Term dismissing the complaint upon the merits.

. Appeal by the defendant, The City of Hew York, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the plaintiff, entered in the office of the clerk of said court on the 3d day of’April, 1905.

Appeal by the defendant, The City of New York, from a judg- ' ment of the Municipal Court of the city .of New York, borough of Brooklyn, in favor of the plaintiffs, entered in the office of the clerk ■ of said court on the 17 th day of March, 1905.. - .

<p>Appeal by the defendants, Thomas P. Wadleigh 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 Westchester on the 17th day of March, 1905, upon the decision of the court rendered after a trial at the Westchester" Special Term..</p>

Appeal by the defendant, the Central Vermont Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 15th day of December, 1904, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 15tli day of December, 1904, denying the defendant’s motion for a new trial made upon the-minutes.

Certiorari issued- out of the Supreme Court and attested on the 15th day of September, .1904, directed to Edson Lewis, commanding him, as police commissioner of the city of Mount-Vernon, to-certify and return to the office of the clerk of the county of Westchester all and singular his proceedings'liad in relation to the removal of the. relator from the police force óf the city of Mount Vernon.,

Appeal by the defendant, Thomas McDermott, from a judgment of conviction rendered in' the Children’s Part of the Court of Sp'ecial Sessions of. the city of Ne.w York on the 9th day of February, 1905. *'

Appeal by the defendant, Stephen Barron, from an order of the Dutchess County Court, entered in the office of the clerk of the county of Dutchess on the- 1st day . of May, .1905, granting the plaintiff’s motion for a new trial of the action.

<p>Evidence—when written statement of defendant’s witness inadmissible — counsel not entitled to read such, statement to witness — power of trial judge — negligence—injury while alighting from train.</p> <p>The plaintiff was injured by the sudden starting of a train from which he was alighting. In an action to recover damages for said injury,</p> <p>Held, that it was not error to exclude the written statement of defendant’s employee as to what he saw of the accident when permission was given to the witness to refresh his recollection therefrom if necessary.</p> <p>Mor was it error to prohibit defendant’s counsel from reading such statement to the witness.. " • ■</p> <p>Control of trial judge over the course of trial stated.</p> <p>Order granting extra allowance reversed.</p>

Appeal by the plaintiff, Lottie Gaines, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings oh the 2d day of December, 1904, upon the verdict of a jury, also from an order entered in paid clerk’s office on the 28th day of October, 1904, denying the plaintiff’s motion for a new trial made upon the minutes, and also from an order entered in said clerk’s office on the 28th day of' October, 1904, denying the…

Appeal by the plaintiff, Robert Wendin, from a. judgment of the Municipal Court of the city of Hew York,, borough of Brooklyn, in favor of the plaintiff, entered in the office of the clerk of 'said court on the 20th day of January, 1906, the plaintiff appealing for the purpose of procuring a review of an order opening a default.

Appeal by the defendant, The, New York Athletic Club of the City of New York, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Westchester on the 6th day of March, 1905, upon the verdict- of a jury for $9,500, and also from an order entered in said clerk’s office on the 27th day of March, 1905, denying the defendant’s motion for a new trial made upon the minutes.'

Cebtiobabi issued out of the Supreme Court and dated the 4th day of August, 1903, directed, to Cuthbert W. Pound and others, composing the State Civil Service Commission of the State of New York, commanding them to certify and return to the office of the clerk of the county of Kings all and singular their proceedings liad in relation to the classification in the civil service of certain positions in the office of the sheriff of the county of Kings.

Appeal by the defendant, Daniel Reid, 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 15th day of December, 1904, upon the -verdict of a jury, and also from an order entered in said clerk’s office on the 9th day of January, 1905, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Episcopal Church óf St, Peter’s, from a' judgment of the County Court óf Westchester county in fa.vor of the plaintiff, entered in the office of the clerk of t'he county of Westchester on the 24th day of Hay, 1905,. upon'the verdict of a jury for $900, and also from an order entered in said clerk’s office on the 22d. day.of May, 1905, denying the defendant’s motion fora new trial made upon the minutes. ...

<p>Negligence—passenger thrown from car while riding on platform— failure to show negligence of defendant — contributory negligence.</p> <p>While it is.not contributory negligence per se for a passenger to ride on the platform of a crowded surface car, he assumes the ordinary risks incident to such a position.- A passenger who is thrown from such position must show, in order to charge the railway company with negligence, that he was thrown . by reason of some unusual movement caused by the" negligent operation of the car/. ' • ■ ■</p> <p>Hence, mere testimony that the cal' while rounding a cúrve was going “ pretty , swift * *. * about nine miles per hour” is insufficient to make a case, particularly when other persons in the same situation observed nothing unusual. "</p> <p>A passenger in such position, who does nothing to protect himself, or even look to see if there is .anything from which he may obtain support, is guilty of contributory negligence. . ■ '</p>

<p>Appeal by the defendant, the Metropolitan Express Company, 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 May, 1905, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 12th day of May, 1905, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, Thomas F. Martin, 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 18th day of. April, 1905, upon the verdict of a jury for $500, and also from an order entered in ¡jaid' clerk’s office on the 14th day of April, 1905, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Jacob D. Remsen, 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 . 21st day of [November, 1905, sending this action from the equity calendar to the jury calendar for trial. The complaint alleges that the defendant is in possession. of the = land in question and that its railroad runs over it.

Appeal by the plaintiff, Moses Tanenbaum, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Mew York on the 25th day of May, - 1905, upon the verdict of a jury rendered, by direction of the court, and also from an order entered in said clerk’s office on the 7th day of June, 1905, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Attorney and client—substitution of attorneys — attorney retaining , lien on papers until payment.</p> <p>Although a client has an absolute right to substitute attorneys, an attorney not guilty of misconduct should be allowed to retain his client’s papers on such substitution until the amount due -him is ascertained by reference and is paid.</p>

Appeal by the defendant, Rose Horowitz, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the plaintiffs, entered'in the office -of the clerk of said court on the 2d day of February, 1905.

Appeal by the defendants, Joseph F. Baker and others, from portions of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 4th day of May, 1904, as resettled and amended by an order entered in said clerk’s office on the 19th day of August, 1904, upon the decision of the court rendered after a trial at the Queens County Special Term.

Appeal by t-be plaintiffs, Walter E. Gabble and others, from a. judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Rings on the 6th day of September, ,1904, upon the decision of the court, -rendered after a trial at the Kings County. Special Term, dismissing the complaint upon the merits. ' '

Appeal by the plaintiff, Edward F. Andrews, 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 12th day of August, 1904, 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 26tli day of September, 1904, denying the plaintiff’s motion for a new trial made upon the •minutes. >' ' ■

<p>Libel—publication wholly facetious cannot be made libelous by innuendo— demurrer to complaint.</p> <p>When a publication; plainly humorous, relating to the plaintiff does not justify an innuendo ascribing to it a libelous "meaning, a demurrer to the complaint will be sustained.</p> <p>When a publication recounts a practical joke played upon the plaintiff, in which • he was accused by his companions of being branded with a “Black Hand,” . and with being a member of a gang known by that name, such publication cannot be made libelous by an innuendo setting out that such gang was composed of assassins, blackmailers, thieves, etc., and a demurrer to the complaint should be sustained.</p>

<p>Sale — when contract for sale of goods not entire —"finding that there was no “delivery.” construed.• „</p> <p>When the vendor has named the price of certain goods, and the vendee has ordered some of them, which were delivered hut not paid for, and the vendee subsequently orders other -goods, which the vendor refuses to deliver without payment, the contfact of sale is not entire, and the refusal of the vendor, to deliver the last orders does not prevent a recovery for the goods previously delivered.</p> <p>In the absence of a contract giving credit the. vendor may require payment on delivery. ■ "</p> <p>A finding by the court that certain goods were ordered t¡ut not “ delivered ” is not-equivalent to á finding that the vendor has "broken thd contract, as such finding may mean only that the vendor refused to turn over the goods, which he had a right to do.</p>

Appeal by the plaintiff, Jennie McGahie, from an order of the Supreme Court, made at the Kings County Trial Term and entered in the office of the clerk of the county of Kings on the 29th day of June, 1904.

Appeal by the defendant, John Curtin, from a judgment of the Supreme Court in favor, of the plaintiff, entered in the office of the clerk of the county of Kings on the 25th day of January, 1905, upon the decision of the court rendered after a trial at the Kings County Special Term’. ,

<p>Appeal by the defendant, George-Levy, from a judgment of the Municipal Court- of the city of 17 ew York, borough of Brooklyn, in favor of the" plaintiff, entered in the office of the clerk Of said court on "the 3d day of March, 1905, upon the verdict of a jury rendered by direction of the court.-</p>

Appeal by the defendant, George G. Shrive, from an interlocutory judgment of the Supreme Court in favor ot the plaintiffs, entered in the office of the clerk of the county of Westchester on the'21st day of January,' 1905, upon the decision of the court rendered after a trial at the Westchester Special Term. '

<p>Landlord and tenant—eviction by failure of lessor to keep building safe — when damages recoverable for breach of covenant for quiet enjoyment.</p> <p>A tenant, holding under a lease with covenant for quiet enjoyment, is entitled to go to the j ury in an action for damages for eviction upon evidence showing that the premises, which were undermined by adjoining excavations and were torn down as unsafe, could have been kept safe by proper care on the part of the lessors. Evidence that the lessors were directed, pursuant to the Municipal Building Code, to make the premises safe shows an obligation cast upon the lessors by ordinance, and if the building was torn down as a nuisance owing to their default, such nuisance was attributable to them. '</p>

<p>Appeal by Mary Knapp, legatee, from so much of a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 21st day of December,'1904, settling the accounts of the administrator of the estate of Emma A. Hurst, deceased, as allows commissions to said administrator, and also from an order bearing date the 30th day of January, 1905, and entered in said Surrogate’s Court, denying the appellant’s motion to vacate the said-decree and to stride out said allowance of commissions.</p>

<p>Appeal by the plaintiff, Arthur MacDonald, from an interlocutory judgment of the Supreme Court, in favor of the defendant, entered in the office of the clerk in the county of Kings on the 15th day of July, 1904, upon the decision of the court, rendered after a trial at the Kings County Special Term, sustaining a demurrer that the complaint does not state facts sufficient to constitute a cause of action.</p> <p>The action is for a libel in the publication by the defendant of the following: ,</p> <p>“ Congress and the Patho-Sooial Humbug.</p> <p>“ To the Editor of the New YorhSun— Sir: I was very much pleased to see your vigorous and healthy editorial in the Sun of Feb. 18, exposing the patho-social humbug and 6 specialist in education/ Arthur MacDonald. There is indeed cause for wonderment that his filthy nonsense should have been tolerated for so long a period. As an apostle of Lombrosian doctrines he has the distinction of being, perhaps, both the shallowest and cheekiest American promulgator of the half truths and whole falsehoods, the fallacies and follies, of this Italian School of Degeneracy. ‘ Doctor ’ Arthur MacDonald is never so happy as when he -can delve in the mire and 'mud of derelict humanity, but for the bystanders, this ‘horrible example ’ for one, is not a useful or instructive exhibit. That any committees of Congress should fail to appreciate the nauseous character of this individual’s 1 work’ is to be deplored by decent people, and the writer sincerely hopes that The Sun will continue fearlessly to expose this persistent self-advertiser and psuedo-scieniist.</p> <p>“ Hew Tore, Feb. 19. AHTHROPOS.”</p>

Appeal by the plaintiff, Arthur MacDonald, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the 'clerk of the. county of Kings on the 15th day of July,' 1905, upon the decision of the court, rendered after a trial at the Kings County Special Term, sustaining a demurrer that the complaint in an action for libel does not state facts sufficient to constitute a cause, of action. .

Appeal by the relator, William M. Lawson, from an order of the Supreme Court, made at the Kings Dounty Special Term and entered in the office of the clerk of the county of Kings on the 27th day of July, 1905, denying the relator’s motion to.be awarded the custody of his minor children.

<p>Mortgage— assignor of mortgage who guarantees payment proper party on foreclosure— no action against such assignor for deficiency without leave of court — complaint not showing leave of. court fails to state cause of action.</p> <p>The assignor of a mortgage, who guarantees that the assignee shall collect the debt, is a party liable to the plaintiff for the payment of the debt secured by the mortgage and may be made a party to an action to foreclose the same under section 1627 of the Code of Civil Procedure.</p> <p>Hence, where the assignee has failed to make such assignor a party defendant in an action of foreclosure he cannot maintain a subsequent action against him for a deficiency without the leave of court required by section 1628 of the Code of Civil Procedure. A complaint in such subsequent action against the assignor which does not allege leave of court fails to state a cause of action.</p>

<p>Real property — covenant not to erect tenement house — such, covenant not violated by erection of apartment house — burden of proof to show ■ meaning of covenant.</p> <p>A contract between adjoining landowners, covenanting that neither óf them will, for a period of twenty-five years, erect “any tenement house,” is not violated by the erection of an apartment house of modern and superior construction.</p> <p>There is a difference between an apartment house and 'a tenement house which will be recognized by the courts.</p> <p>To restrain the erection of such apartment hoúsé as a violation of said covenant, the burden is on the plaintiff to show that the building is what is known as a “ tenement house ’’-within the meaning of the covenant'. '!</p>

. Appeal by the defendant, the New-Yorker Staats-Zeitung, 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 November, 1905, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant’s demurrer to the complaint.

Appeal by the defendant, The Tribune Association^ from an interlocutory judgment of the Supreme Oourt in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 28th day of _ November, 1905, upon the decision of the court, rendered after a trial' at the New York Special Term, overruling the defendant’s demurrer to the complaint. <

<p>Crime—larceny — admission of evidence of another and unconnected theft by defendant reversible érror — confession of defendant to said unrelated theft not admissible against him.</p> <p>On the trial of an iridictment'for grand larceny in stealing a diamond- pin, it is reversible error to admit, against objection, evidence of a ¡former and unrelated larceny by the defendant. It is not permissible to introduce evidence of an independent crime to establish the guilt of a person indicted for a specific offense. _</p> <p>Such evidence only becomes admissible when the two crimes were committed in pursuance of a single scheme or design.</p> <p>When several witnesses have 'been allowed to testify as to such independent crime, the error is not cured by striking out some of the testimony if other parts remain on the record not stricken out and the judge in his charge makes no reference to such .evidence and fails to instruct the jury to disregard it. .</p> <p>The admission of evidence of such unrelated crime is none the less error because given as a confession made by the defendant to one of the witnesses.</p>

Appeal by the plaintiff,- Mary Baker, from a judgment of the Supreme Cotirt in favor of fhe defendants Charles Baker and others, entered in the office of the clerk of the county of Hew York on the 9th day of .June, -1905, upon the decision of the court rendered after a trial at the Hew York Special Term.'

Appeal by the defendant, Abram Lipp, 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 3d day óf February, 1905, convicting, the defendant, of the .crime of grand larceny in the first degree.

Appeal by Thomas Janney 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 12th day of December, 1905, denying a motion that the report of a referee be returned to the referee, and the reference continued, and that the hearing therein be resumed. ■ '

. Appeal by the defendant, the Denver and Rio Grande Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 15th day of June, 1905, upon the verdict of a jury for ■$2,000, and also from an order bearing date the 12th day of June, 1905, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Bernard W. Webel, from a judgment. of the Supreme Court in favor of the' defendant, entered in the office of the clerk of the county of Mew York on the lltli day of October, 1905, upon the decision of the court rendered after- a trial at the Mew York Special Term.

. Appeal by the defendant, .the H. S. Electro-Galvanizing Company, 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 New York on the 30th- day of January, 1906, denying the defend- - ant’s motion to vacate an order for the examination- before trial of the president of the defendant company.

<p>Complaint-^-action against syndicate on guarantee to sell securities — when damage sufficiently alleged — complaint on breach.of contract not demurrable1 for.failure to allege damage — contract construed, .</p> <p>The complaint set out a contract with the defendant, a- selling syndicate organized to sell stock of the United States Shipbuilding Company, whereby the syndicate'agreed in substance to sell securities owned by the plaintiff within one year, át a'price not less than that specified therein, and undertook that-the plaintiff should receive at the end of the year the price stipulated; that the ' defendant requested the plaintiff to hold the securities in his possession, hut at the defendant’s use, and disposal, which the. plaintiff did, and repeatedly tendered the same to the defendant, etc. --The complaint further,alleged, by way of damage, that, ‘‘ the defendant failed to make any sales of the securities, aforementioned as plaintiff has been informed and believes. Certainly the defendant failed to account to'flie plaintiff as provided in the agreement.”. Meanwhile the' securities had b.ebome substantially valueless, “to plaintiff’s . damage in the sum of,” etc. i . . . ' ■ ' ■ .</p> <p>On demurrer.to the said complaint as failing to show damage,</p> <p>' that the,damage sustained by the plaintiff.was the difference between the "value of the securities at the end of the year, when the defendant agreed to pay,' add the minimum, price - at which the defendant agreed that they should-be sold; ' ■ ’ • " , .......</p> <p>That the plaintiff’s damage was sufficiently alleged;</p> <p>That as the plaintiff was in any event entitled to nominal damages for the breach of contract the complaint was not demurrable, though no damage were alleged;</p> <p>That, though the contract set forth contained a provision that the same was to become null and void oh a date named (the date for which payment to plaintiff was set), the liability of the defendant was not affected by said clause, as to hold otherwise would be to nullify the whole agreement between the parties.</p>

Appeal by the plaintiff, Morris Wolinsky, 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 25th day of October, 1905, granting the defendant’s motion to cancel a lis pendens upon tiling an undertaking under the provisions of section 1671 of the Code of Civil Procedure.

Appeal by the defendant, Lewis Y. F. Randolph, as president of the Consolidated Stock and Petroleum Exchange of ¡New York, from an order of the Supreme Court, made at the ¡New York Special Term and entered in the office of the clerk of the county of New York on the 24th day of November, 1905.

Appeal by the defendant, Frederick E. McEwen, 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 ■ 11th day of January, 1906, denying the defendant’s motion to vacate an order of arrest. . . ■

Appeal by the plaintiff, Edward B. -Schmalholz, from' an order of- the Supreme Court, made -at file New York, Special 'Term' and entered in the office of the clerk of the county of New York on the 26th day of December,. 19.05, granting the' defendant’s motion for alimony and counsel fee.

<p>Transfer tax — surrogate has power to order reference to determine question of residence of decedent.</p> <p>When, in a proceeding to appraise the estate of a decedent for the purpose of levying a transfer tax, the question as to whether the decedent was a resident of this State is at issue, the surrogate has power, under section 2546 of the Code of Civil Procedure, to refer the question to a referee to take testimony and report with an opinion, and to direct that the appraiser await the coming in of such report.</p> <p>The surrogate is not hound to decide such question of residence on the evidence taken before the appraiser.</p>

Appeal by the plaintiff, Joseph Budomin, 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 25th day of May, 1905,’ upon the verdict of a jury for $2,000, and also from ap. order entered in said clerk’s office on the 24th day of May, 1905, denying the plaintiffs motion for a new trial made upon the minutes.

Appeal by the defendants, Henry W. Peabody and others, composing the firm of Henry W. Peabody and Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 3d day of April, 1905, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 3d day of April, 1905, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the plaintiff,- The People of the State of Hew York, -from .an ordpr of the Court of General Sessions of the Peace in and for the city and county of Hew York, entered’ in the office of the. clerk of said court on the 6th day of February, 1906,, granting a motion in arrest of judgment. • z

Appeal by the plaintiff, George M. Stevens, Jr., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of January, 1906, denying the plaintiff’s motion for an injunction pendente Hie.

Appeal, by the defendant, ¡Rose L. Barkley, 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 31st day of March, 1905, upon the decision, of the court rendered after a • trial at the New York Special Term. -

<p>„ Appeal by tké plaintiff, Edward Oramsey, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 22d day of June, 1905, upon the decision of the court rendered after a" trial at the Hew York Special Term.</p>

<p>N.eal propérty — action for specific performance of contract to purchase —when vendor’s title obtained through foreclosure is marketable though service by publication was irregular—when irregularity in such, service not vital—order of publication amended nunc pro tunc.</p> <p>The title of a purchaser of real estate on foreclosure is marketable, although at the time the summons in the action of foreclosure was served/by publication upon one of the defendants it had been ordered that a supplemental summons issue to bring in certain tenants, which supplemental summons was not served , on said defendant, who! Was served only with the Original summons, which named her as defendant. Such defendant having been summoned to answer on her own account, it is immaterial that the summons did not contain the names ■ of tenants made parties only to foreclose their rights as such.</p> <p>Neither.is the title unmarketable because the order of publication required “notice of object of action” to be served instead of the “complaint,” as required by section 440 of the Code of Civil' Procedure,, if in fact the. complaint was served together with such notice of object of action and the order of publication thereafter was corrected and filed nuna pro Pane. •</p> <p>While an order cannot be made nune pro "túne to supply a jurisdictional defect by requiring to be done something which has hot been done, such order may be so corrected when the thing has in fact been'done.</p> <p>Ingraham, J., dissented, with opinion.</p>

Appeal by the plaintiff, John McDonough, from, a judgment of the Supreme Court in favor of the defendant, the Pelham Hod Elevating Company, entered in the office of the clerk of the county of Hew York on the 10th day of January, 1905, upon the dismissal of the complaint by direction of the court as to the said defendant after .trial at the Hew York Trial Term.

Appeal by Ann Wiley, individually, and others from certain portions of .a decree of the Surrogate’s Court of the county of ¡New York, entered in said Surrogate’s Court on the 26th day of June, 1905.

Appeal by the defendant, James F. Dolan, 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 19th day of May, 1904, convicting the defendant of the crime of forgery in the second degree.

<p>Taxation of costs — costs before notice of trial in action for money had and received —when complaint states such cause of action.</p> <p>In an action in tort the costs before notice of trial should be taxed at twenty-five dollars, but if the action be ex contractu said costs should be taxed at fifteen dollars.</p> <p>When the allegations of a complaint make it doubtful whether an action is in tort for money received in a fiduciary capacity and converted," 6r merely for money had and received, it should be construed as an action ex contmetu and the costs before notice of trial taxed at fifteen dollars.</p> <p>The mere allegation that the defendant, who had received moneys from the, plaintiff to pay out on certain claims, converted the same to bis own usej does not characterize the cause of action but may be regarded as surplusage.</p> <p>Ambiguous complaint construed.</p>

Appeal by the defendant, Edgar Y. Lawrence, individually and as sole heir at law of Samuel it. Lawrence, deceased, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office off the clerk of the county of Hew York on the 18th day of April, 1905, upon the report of a referee, directing a' partition and sale of certain real' property. <

Appeal by the defendant, the Buffalo,, Rochester and Pittsburgh Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the' clerk of the counity of Cattaraugus on the 13th day of May,. 1905,- upon the verdict of a jury for and .also from- an order entered in said clerk’s office on the 16th day of May, 1905j denying the defendant’s motion for a new trial made upon the minutes. ' The action was commenced on the 17th day of…

Appeal by the defendants, John Shea 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 Onondaga on the 24th day ©f March, 1905, upon the verdict of a jury, and also from- an order entered in said clerk’s office on the 29th'day pf March, 1905, denying the defendants’ motion for a new trial made upon the minutes..,

Appeal- by the defendant, Greorge R. Teller, as administrator with the will annexed, etc.,, of.Daisy Fletcher King Smith, deceased, from a .judgment of the Supreme Court in favor of -the plaintiff, entered in the office o'f the clerk of the county of Erie on the 6th day of February, 1905, upon the decision of the' court rendered after a trial at the Erie Trial Term, the jury having been discharged. The plaintiff is a maiden lady residing in Buffalo.

‘ Appeal by the plaintiff, Anna T. Gilliam, from a final judgment of the Supreme Go art in favor of the defendants Janies.

<p>Municipal corporations— civil service rule of city of Mew York requiring six mtmths’ service before admission to examination for promotion is constitutional—mandamus to compel admission to such examination before such service refused.</p> <p>Rule 15, subdivision 2, adopted by the municipal civil service commission of the city of Mew York, which provides that those taking examinations for promotion “ shall have served with fidelity for not less than six months, in positions of the same group or general character, in the grade next lower, in the same department,” is not in violation of section 9 of article 5 of the State Constitution, providing that “promotions * * * shall be made according to merit and fitness to be ascertained, so far as practicable, by examinations,” etc.</p> <p>Mor is said rule in violation of the Civil Service Law, Which requires that "' promotions shall be based upon merit and competition.”</p> <p>Hence, a peremptory writ of mandamus to compel the admission of an assistant foreman of the fire department of said city to an examination for promotion before he has served six months in his present grade will be refused.</p>

Appeal by the defendant, Henry Corn, 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 New York 'on the 15th day of December, 1905, granting an injunction pendente lite.

Appeal Ijy the defendant, the Robert M- Silverman Realty and Construction Company, from an order of the Supreme Court, made at the blew York Special Term and entered i-n the office of the clerk of the county of ¡New York on the 14th day of December, 1905, granting an injunction pendente lite.

<p>Appeal by Rosalie Flarke from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Niagara on the 1st day of November, 1905, permitting the plaintiff to enter immediately upon the real property described in the petition herein.</p> <p>The plaintiff is an electric transportation corporation duly organized pursuant to the laws of the State of New York, and is engaged in constructing a line for the transmission of- electricity from the city of Buffalo east war dly to the central part of the State. Maps of the route have been tiled, surveys made, nearly all the land necessary for the right of way, and which comprises a strip 200 feet in width, has been acquired in the counties of Erie, Niagara, Orleans and Monroe, and much of the actual work of construction has been performed.</p> <p>The appellant, Rosalie Flarke, owns land in the town of Lock-port, in the county of Niagara, one and three-fourths acres of which the plaintiff is-seeking to. acquire. Proceedings were coim menced by plaintiff for the condemnation of the land mentioned in August last. An answer was interposed by the appellant denying nearly all the allegations of the petition, also containing affirmative defenses; and the issues were, in the latter part of^ September, referred to a referee, and the proceeding is still undetermined.</p> <p>. Early in October the present proceeding was commenced and an order granted at Special Term permitting the plaintiff to enter immediately upon the premises of the defendant described in the petition upon depositing with the court the sum of $500, to be applied toward the payment of any award which may be made to her, including the costs and expenses of the proceeding. The money has been deposited in pursuance of the order. Other facts appear in the opinion.</p>

<p>Stockholder’s action to recover corporate assets dissipated by fraud — when prior demand that corporation bring action not' necessary — proper parties defendant.</p> <p>In an action by a stockholder, who claims to have been induced by fraud to place his stock in the hands of a trustee, and with other stockholders to have been defrauded, pursuant to a conspiracy of the officers of the corporation and others to put the corporation through bankruptcy to defraud its creditors and stockholders other than those participating in the conspiracy, to recover the assets dissipated by the collusion of said officers, it is not necessary to allege a refusal of the corporation upon demand to commence such action if the only officers upon whom such demand could have been made are shown to have participated in the conspiracy.</p> <p>Under other circumstances such demand and refusal would be necessary to make out a cause of action.</p> <p>Individuals not members of the corporation, who are alleged to have participated in the conspiracy, are properly made parties defendant in order that they may be compelled to account.</p> <p>Though a plaintifE ih such'action has no standing save.as a stockholder, the fact that his stock is held by said trustee does not prevent his action when the trustee is shown to have been appointed by fraud in which he participated.</p> <p>It is not necessary to postpone the action until the termination of an action to recover the stock from said trustee.</p>

Appeal by the defendants, Edward Wallerstein and others, from ap order of the Supreme Court, made at the Oneida Special Term and entered in the office of the clerk of the county of Oneida on the 8th day of June, 1905, appointing a temporary receiver of the defendant corporation, Edward ^Wallerstein & Company.

<p>Real property — injury to shade trees by erection, of telephone poles — damage recoverable when injury is wantqn — when complaint dismissed for failure to show damage.</p> <p>Although in an action hy the owner, of lands in a city to restraint telephone, company from erecting poles along the premises and for damage for “ wrong-, fully, willfully and wantonly, without authority,” destroying shade trees to plaintiff’s damage of §1,000, the plaintiff may be entitled to recover if the said destruction of the trees was wanton, etc., yet if the plaintiff has failed to . give evidence of any- damage, a dismissal of the complaint on the meritsvwithout prejudice to an action for damages hy the plaintiff is proper.</p> <p>Even though such defendant may act under legal authority in erecting its poles, it is liable for damage if an injury to property in so doing he " wanton and willful.”</p> <p>It seems, also, .that compensation to an owner-of city lands will be awarded .if a telephone company in the prosecution of its business mutilates the trees of such landowner to such an extent as substantially to lessen the value of the premises.'</p>

<p>Appeal by the plaintiff, Geneva Mineral Spriiigs Company, Limited, and by the defendant, Mary E. Coursey, 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 Ontario on the 11th day of March, 1905, upon the report of a referee.</p>

<p>Appeal by the defendant, The Straight Line Engine Company, 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 Onondaga on the 18th day of November, 1905.</p>

Appeal by the defendant, John Grape, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in ■ the office of the clerk of the county of Monroe on the 28th day of* September, 1905, upon the decision of the court rendered after a trial at the Monroe Special Term.

Appeal by the defendant, The Pettebone Cataract Paper Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office 'of the clerk of the county of Miagara on the 11th day of March, 1905, upon the verdict of a jury for $8,000, and also from ah order entered in said clerk’s office on the 5th day of July, 1905, denying the defendant’s motion for a new trial made upon the minutes. ' This action was brought to recover damages for personal injuries…

<p>Watercourse — duty to keep artificial ditch unobstructed — owner liable for want of reasonable care—-charge.</p> <p>A railroad company, which has built a ditch to collect waters coming upon its. land from the premises of adjoining landowners and has built a culvert to conduct said waters under the railroad embankment, is bound tq use reasonable and ordinary care to keep such ditch and culvert unobstructed, and is liable if accumulated waters set back upon adjacent lands causing damage.</p> <p>It makes no difference that the water is collected in an artificial channel or that the watér came from the lands of persons other than the plaintiff. A landowner may not collect water into an artificial channel upon his lands and dis- ■ charge it upon the lands of another in such volume or quantity in excess of the natural draihage as to cause injury.</p> <p>Charge as to liability of defendant approved.</p>

Appeal by the defendant, John P. Ahearn, as president of the borough of Manhattan, in the city of Mew York, from an interlocutory judgment of the Supreme Court in favor of the relator, entered ‘in the office of the clerk of the county of Mew York on the 19tli day of July, 1905, upon the decision of the court, rendered after a trial at the Mew York Special Term, overruling the defendant’s demurrer to an alternative writ of mandamus.

<p>Contract — contract of transferrer of stock that corporate debts will be collected — such contract not for benefit of corporation — when no ■ action by corporation lies thereon — proof of assignment of rights of purchaser not admissible unless alleged in complaint.</p> <p>When the owner of corporate stock ■ upon transferring to a third person a sufficient number of shares to give a controlling interest, guarantees that the accounts receivable by the corporation will be collected and that certain claims will not be made against the corporation, and agrees to pay to the corporation or to the transferee of the stock the amount of any accounts not collected,etc., or deduct the value thereof from the price set upon the balance of the stock which the transferee has an option to purchase, such promise is personal . to the transferee and for his benefit. It is not made for the benefit of the corporation, which, therefore, is not entitled to enforce the promise. .</p> <p>The only standing which such corporation can have in order to enforce such promise would be as assignee of the rights of the promisee, and'when no such assignment is alleged and no amendment setting out such assignment is asked, a nonsuit is proper.</p> <p>Evidence of said assignment is not admissible unless alleged in the complaint.</p> <p>Doctrine of Lawrence v. Fox discussed and limited.</p>

<p>Testamentary trustee —when entitled, to commissions;</p> <p>A testamentary trustee is, entitled to commissions when he has executed his trust, although he has tor some years paid the income to the beneficiary.without deducting his commissions, and has made no accounting, during that period. Such failure to deduct his commissions is not a waiver of his right thereto. ...</p>

Certiorari issued out of the Supreme Court and attested on the 6th day of June, 1905, directed to John O. Déstnond and others, composing the board of assessors of the city of Utica, and another, commanding them to certify and return to the office of the clerk of the county of Oneida all and singular their proceedings had in making certain local assessments.

Appeal by the plaintiff, Catherine Bannister, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 18th day of December, 1905, upon the dismissal of the complaint by-direction of the court after a trial at the Erie Trial Term. '

Afpbal by the defendants, College Heights Land Company of Niagara Falls and another, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Niagara on the 24th day of October, 1904.

<p>Separate appeals by Jesse Brooks IJichols and others, beneficiaries under the will of Julia A. Brooks, deceased, from portions of a decree of the Surrogate’s Court of Chautauqua county, entered in said Surrogate’s Court on the ,15th day of April, 1905, settling the account of the trustees under said will. .</p>

Bbaegument of an appeal by Jesse M. Cornell and another from an order of the County Court of Schoharie county, -entered in the office of the clerk of '■the county of .'Schoharie on the 14th day of February, 1905, denying the appellants’ motion to vacate and set aside an order granted on the 16th day of May,. 1904, appointing three' commissioners to determine the necessity of proposed highway alterations in the above-entitled proceeding, and also to vacate and set aside an…

<p>Appeal by the plaintiff, Charles Cooper, from a judgment of the Supreme .Court in favor of the defendant, entered in the office of the clerk of the county of Montgomery on the 25 th day óf April, 1905, upon the decision, of the-court rendered, after a trial at the Montgomery' Trial Term, the jury having been discharged, 'dismissing the complaint. • .</p>

<p>Appeal by the plaintiff, The Town of North Hempstead, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Nassau on the 22d day of December, 1904, upon the report of a referee dismissing the complaint.</p> <p>Judgment affirmed, with costs, upon the-opinion of Stephen H. Olin, Esq., referee.</p> <p>Hirschberg, P. J., Woodward, Jenks and Rich, JJ., concurred;</p>

<p>Appeal by.the defendant, The Cayuga Lake Cement Company^ from, a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Tompkins on the 12th day of December, 1904, upon the verdict of a jury for $3,500, and also from an order entered in said Clerk’s office on the’3d day of June, 1905, denying the defendant’s motion for a new trial made upon the minutes. ' . .</p> <p>. The defendant, in the transaction of its business, is required to blast rock. This rock is blasted by the use of dynamite. This dynamite is stored in' a safe reservoir out of harm’s way. As it is used, however, it is required to. be brought up, and, in cold .Weather, thawed out. before. it can be exploded. A little shanty was built, upon the defendant’s premises, near to the quarry, about twelve-feet square. This shanty contained two rooms. One of them was* what was called the tool room, in which the tools Were kept. The ' other room was called the dynamite room. The dynamite, room was the smaller of the two. In. .this dynamite room was a stove, ■ and around the stove upon two sides, were shelves about eighteen inches from the floor, upon which the dynamite was placed for the purpose of thawing it out. After the dynamite was thawed out a little hole was dug out from one end of a stick of dynamite into which was put an exploder. The apparatus containing this exploder, and containing either the fuse by which it was lighted or the wife by which it was afteiwards attached to the electric battery, was called the cap. The exploder Was put into the end of' the stick of dynamite and in' some way the wires were then wound around the end of the stick of dynamite so- as to hold the exploder or cap in its place. Hpon the lSth day of January, 1903, the plaintiff’s intestate was last seen going toward this house Where this dynamite Was kept. A short time afterward a loud explosion occurred and .the plaintiff’s intestate was found-with his body very much, mutilated" about thirty or forty feet from this house. This action is brought by his administratrix for damages for his, death as caused by - the negligence of the defendant. The jury rendered a verdict of $3,500.. From the judgment entered upon that verdict and from an. order denying defendant’s motion for á new trial the defendant here appeals. Further facts appear in-the opinion.</p>

Appeal by the defendants, Godfrey R. Martine 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 Warren on the 6th day of May, 1905, upon the report of a referee. The action was brought for the foreclosure of a mortgage.

<p>Appeal by the plaintiff, Charles Clifford, frornu judgment of the Supreme Court in favor of the defendant,' entered in the office of the clerk of the county of Bensselaer on the 31st day of May, 1905-, upon the dismissál of the complaint, by direction of the court after a trial at the Bensselaer Trial Term. .</p> <p>The plaintiff was at work upon the sidewalk in front of .an hotel at Castleton, M. Y. ’Upon the opposite side of the highway ran the defendant’s road. Upon June 19-, 1904, while the plaintiff was thus at work, one of the. defendant’s trains passed -through Castleton. 'From this train was thrown a bundle of ‘Sunday Mew York newspapers,which struck the ground with great force and, rebounding, hit the plaintiff,- knocking him down on the brick walk and rendering him unconscious. . This bundle of papers weighed . about seventydive pounds -and was thrown while the train was thus running at the rate of about sixty miles per hour. For the injury thus' received -the plaintiff has sued the defendant company. Upon the -trial the plaintiff’s complaint-’was dismissed. From the judgment-' of dismissal the plaintiff 'has here appealed.</p>

Appeal by the defendants, Daniel M., Lounsbury and others, as executors, etc., ¡of.

<p>Appeal by the .plaintiff, Eugene D. Scribner, as committee of the estate of Margaret E. Berry, a lunatic, 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 5th day of July,-1905, upon the verdict of a jury, and also from an order -entered in: said clerk’s office on the 28th day of June, 1905, denying the plaintiff’s motion for a new-trial made upon the-minutes. '</p> <p>This is an action to recover damages ,for cutting and removing trees and timber growing on- the farm of the said incompetent person Margaret E. Berry. At the time of the acts complained of, Jerome Egleston was the committee of her estate. He has since died, and the plaintiff, having been appointed his successor, brings the action. On the trial the defendants admitted the acts complained of or some of them, but sought to justify them by reason of an alleged authority of the committee.</p> <p>From the testimony of the defendants it appeared that they made contracts with Samuel P. Berry, the husband, and with Arthur Berry, the son of the incompetent person, to cut and remove such wood and timber. Before acting under such contracts one of the defendants saw Egleston, the committee, and after informing him of bis conversation with Berry about cutting wood asked the committee if he had any objection, to which the latter replied, “Ho, sir, anything you do with Berry is all right.” There "was also evidence that the committee permitted Berry, the husband, to manáge the farm and to do with it as he desired. The latter did not reside on the farm, but had a cottage there, and went there every season for a time and to a certain extent worked the farm.</p> <p>After said conversation with the committee the defendants cut and removed the wood and timber in question. . Some they divided with the husband and son of the incompetent person and paid them the balance thereof. The committee received nothing for the wood or timber thus removed, nor has the estate of the incompetent person received any benefit therefrom, nor was any of the Same used by any person on the farm.</p> <p>On the trial at the conclusion of the evidence plaintiff moved for a direction of a verdict in his favor, which motion was denied and exception taken.</p>

Appeal by the defendant, Hugh Adair, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Delaware on the 4th day of September, 1905, upon the decision of the court rendered after a trial at -the Delaware Special Term. ' This case on a former appeal is reported in 96 Appellate Division, 75, reference to which report is made for a detailed, statement of the facts herein.

Appeal by the defendant, Abram Hunt, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Delaware on the 20th day of December, 1904, upon the report of a referee. The plaintiff commenced this action against the defendant for ■trespassing upon her lands and cutting and taking timber therefrom.

<p>Appeal bv the defendant, The Hew- York Central and Hudson Biver 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 Schenectady on the 22d day of September, 1905, upon the verdict of a jury for $1,200, and also from an order entered iri said clerk’s office on the 19th day of September, 1905, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>The action is brought by the administrator and father of the infant, Theodore J. Paige, to recover for loss occasioned by the death of such infant through the alleged negligence of the. defendant railroad company. The death occurred oil the 22d day of December, 1902. The infant at that' time was nineteen months of age and was then in the care of his grandmother, Theresa Hatch' who was about forty-eight years of age. On - that day, at about three o’clock in the afternoon, she, with the deceased in her arms attempted to cross from the northerly to the southerly side of the defending railroad company’s. tracks at a crossing where Congress street intersects such tracks in the city of Schenectady. There was at that time a freight train coming' from the west on track 4, which was the one nearest to her. It was a dark, wet, muggy day, and the wind was blowing from the west. As she approached the tracks, she stopped and looked to the east and to the west, the train on track 4 being then, as the plaintiff claims, about 400 feet west of the crossing. She then proceeded across track 4, and was just about to step on track 3 when she was struck by a freight train coming from the east on that track, and both she and the infant were killed. It is claimed that no whistle was blown on the train which struck her as it approached the crossing, nor when it passed the whistling post, which was about 1,000 feet east thereof. There is also evidence that no bell was rung as the train approached the crossing, although the engineer testified that the bell at that time was ringing automatically. The train which struck the deceased consisted of a heavy freight train going down grade at the rate of about eighteen miles an 'hour. The freight train on track 4 was going east at the rate of about four miles an hour. An action was brought by the administrator of Theresa Hatch, the grandmother of the infant, against 'the said defendant, for negligently causing her death, which was tried before Mr. Justice John M. Kellogg and a jury, and resulted in a verdict for the plaintiff. The defendant moved, upon the minutes of the court for a new trial, which was granted. The plaintiff appealed from such order to this ■ court, which on January 3,1905, affirmed the same, but without any opinion (Hatch v. N. Y. C. & H. R. R. R. Co., 101 App. Div. 611, affg. 42 Misc. Rep. 152). .Hpon the trial of this action the jury rendered a verdict in favor of the plaintiff for $1,200, and from the judgment entered thereon, and from an order denying a motion for a new trial thereof, this appeal is taken. Further facts appear in the opinion of the court.</p>

<p>Appeal by the defendants, the Boston 'and Maine Railroad Conn pany 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 Rensselaer on the 13th day of May, 1905, upon the Verdict of .a jury for $5,000; also from an order entered in said clerk’s office on •the 17th day of May, 1905, denying the defendants’ motion for . a new trial made upon the minutes, and -also from an order entered on the 17th day of May, 1905, granting the plaintiff’s motion for an extra allowance.</p> <p>. The defending railroad companies jointly ówn and operate a freight yard at Mechanicville. On the west side are some twelve tracks, known as the Boston and Maine tracks; and On the east side are about eighteen tracks, known as the Delaware and Hudson tracks. Plaintiff’s intestate* Freemont, had been employed by the defendants in said yard as a brakeman for about six months prior to November 10, 1904, upon which date he received injuries from which he died on November" eighteenth. The accident causing such injuries occurred on track No. 8 of the Boston and Maine tracks. Track No. '8 was used to temporarily store cars awaiting final assignment to a fast freight then in process of being made up. One crew at the south end would haul, cars from different tracks and shunt them onto track No. 8, while another crew at the north end would haul these same cars to whatever fast freight their destination might be.. Between fóur and five o’clock on the morning of November tenth, Freemont’s crew had' taken bff about fifteen cars from the north end of track No. 8'when they came to a defective car, which could only be removed .by means of a chain hitch. ■ Such a coupling must be made by going between the cars and inserting a link of the chain into the drawhead of each of the cars to be coupled and dropping a pin through the link. While engaged in- . doing that work, cars were shunted upon the south end of said track No. 8, and ran against the one which the deceased was endeavoring to couple with the engine, and he was thereby caught between the. car and engirie, and received the injuries from which he died. The plaintiff, as administratrix of said deceased, claiming that such death was occasioned by the negligence of the defendants; brought this action to recover for the same. The jury rendered a verdict in her favor in the sum of $5,000, and from the judgment entered thereon, and from an order denying the defendants’ motion for a new trial on the minutes, this appeal is taken. A motion was also made by plaintiff for an extra allowance of costs, under section 3253 of the Code of Civil Procedure, which was granted, and from this order the defendants also appeal.</p>

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 29th day of July, 1905, upon the verdict of a jury for$25,000, reduced by stipulation to $15,000, and 'also from an order entered in said clerk’s office on the 23d day of June, 1905, denying the said defendant’s motion for a new trial made upon the minutes.

<p>Evidence — pedigree may,be proved by hearsay— rules as to the admission of oral and written declarations on questions of pedigree stated.</p> <p>Pedigree is the history of family descent which is transmitted from one generation to another hy both oral and written declarations; and unless proved by1 hearsay evidence hot competent in general issues, it cannot, in most instances, be proved at all.. Matters of pedigree consist of descent and relationship evidenced by the declarations as to- particular facts such as birthsj marriages and 'deaths. In such cases hearsay evidence -of declarations to persons, who from their situation were- likely to know the facts, -is- admissible when the person making the declaration is dead. , - - -</p> <p>But before these declarations can he received in evidence it must appear that the person making them was a member óf the. family whose descent is sought to be traced. Only slight proof of relationship will be required, since the relationship of the declarant with the family might be as difficult to pi-ove as the very fact in controversy. 1, .</p> <p>In tracing pedigree identity of name'raises a presumption of identity of person _ where there is similarity of residence or trade, or circumstances, or whore the name is an unusual one, and such identity of name being shown, the burden is upon the party denying the identity to show1 that the name relates tó a different person. , -</p> <p>Henee,, in an action for'partition where the plaintiff is seeking to show his relationship to a deceased owner of the property, and declarations, made by members' of the family with whom relationship is sought to be proved, are offered • in evidence, it is error to exclude evidence of marriages, deaths and burials of ‘. persons alleged to' have been the plaintiff’s ancestors, as shown by church records entered in books kept for that purpose.</p> <p>Such proof should not be-excluded merely because the handwriting of the person who made the entries is not proved, or because they were made by the clerk of the church and not.by the pastor himself, if such records' are ancient documents.</p> <p>As a general rule an ancient record- Of document which comes, from a custody which the court deems proper, and is itself free from any indication of fraud or invalidity, proves itself. , '</p> <p>It is also immaterial that names appearing in said records were spelled in different ways.</p>

Appeal by the defendant, Harriet A. Heylman, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 9th day of June, 1905, upon the decision of the court rendered after-a trial at the Hew York Special Term.

<p>Cross-appeals by the plaintiff, Charles H. Blair, as trustee of the estate of David Cargill, deceased, and by the defendants Panola C. Hampton and another, from portions of a judgment of the Supreme Court, entered in the office of the clerk of the county of Hew York on the 12th day of July, 1905, upon the report of a referee,'and also from portions of an order entered in. said clerk’s office on the 16th day of Hay, 1905, granting certain extra allowances of costs.</p>

Appeal by The Rational Commercial Bank of Albany from an order of the Supreme' Court, made at the Columbia Special Term and entered in the office of .the clerk of the county of Columbia on the 14th day of December, 1905, denying the appellant’s application for the discharge of 4 lien upon moneys due for the construction of water works in the city of Hudson. , Hurd, Sherman & Company, a corporation,, had contracted with the city of Hudson for constructing a part of the system…

<p>Executors and administrators — claim against estate for board furnished by decedent’s daughter—failure to show promise to pay—when no recovery on quantum meruit.</p> <p>The plaintiff, a married.woman, who had lived- with her father in.his house, which she managed for the mutual benefit of her own family and her father, and for Which she paid no rent, made a claim against his estate for board furnished during his life. The referee made no finding that the decedent ever promised to pay the plaintiff any sum whatever for the board furnished, or that the plaintiff ever promised to pay anything for the use of the house furnished by the decedent. It was also shown that she had never presented a bill for the board furnished, although she had made out a bill during his lifetime.</p> <p>Held, that upon the facts found no action arose against the father to pay upon a quantum meruit;</p> <p>That evidence of an alleged conversation between the decedent and the claimant’s husband, in which decedent said that he thought it would be cheaper for him to board with the plaintiff, and that he would pay her three dollars and fifty cents a week, and other evidence of the plaintiff’s daughters substantially to the same effect, was inconsistent with an agreement to pay what the board was worth, and that such evidence was insufficient to show a definite promise to pay;</p> <p>That as between father and daughter living in the same family an express contract to p'ay for board must be established by clear and convincing proof;</p> <p>That a judgment for the claimant should be reversed on the law and the facts.</p>

<p>Appeal by the defendant, Frahk Sullivan Smith, 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 6th day of July, 1905, upon the verdict of a jury rendered by direction of the court after a trial at the ¡New York Trial Term, and also from an order entered in said clerk’s office on the 12th day of July, 1905, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Conversion — agreement by landlord that tenant may store property on premises after expiration of lease — landlord not liable for conversion by reason of removal of such property by new tenant.</p> <p>When a lessee, whose lease has expired, has been allowed by his lessor to store personal property in a loft of the building until the building is leased, he cannot recover as for a conversion against his former landlord because said property has been moved out without notice by a new-tenant who leased the entire building, since the owner in leasing the building to the new tenant was merely exercising a legal right.</p> <p>Qumre, as1 to whether an action for damages would lie against the owner of the building.</p>

Appeal by the plaintiff, Myer Heilman, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 19th day of May, 1905, upon the dismissal of the complaint by direction of . the court after a trial at the Hew York Trial Term, and also from an order entered in said clerk’s office on the 23d day of May, 1905, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Testamentary trust — life beneficiary of the income and dividends of specific stock placed in trust is entitled to .receive dividends declared thereon — distinction in this respect between trust of spebific stock •and trust of a fund of money — subscription .rights accruing on such stock go to increase corpus of the trust—unnecessary to provide a sinking fund to provide against depreciation in value of specific securities — trustees receiving such specific stock entitled to one-half commissions — when life beneficiary entitled to act as trustee — when life beneficiary acting as trustee entitled to commissions.</p> <p>When a testator puts certain specific, railroad stock and bonds, together with all interest thereon theretofore accrued or thereafter accruing, and every and all dividends which may he declared on said stock subsequent .to the testator’s death, in trust for the benefit of his wife for life, with a directión'to the trustees to receive the income and profits thereof and apply the same to the use of said wife, with power in the trustees to sell and'dispose of any or all of said stock and to invest and reinvest the proceeds in such securities as to them may ■ seem advisable, and to apply the income and profits arising therefrom as aforesaid with remainder at the death of the wife to .the heirs of the testator, the wife is entitled to receive dividends declared on said stock during the period of the trust, and such dividends are not to be considered as part of the principal.</p> <p>There is'a settled distinction between a case where specific securities consisting of stock and bonds are bequeathed to a trustee with a direction to pay the income . and profits of such specific securities to a life beneficiary, and a case where a sum of money is bequeathed to trustees with directions to invest the same and pay the income of the amount invested tp a beneficiary. In' the latter case the. trustees are bound, whatever the form of the investment, to preserve intact the capital Of the trust, but where specific securities are put in trust with a direction that the income and profits thereof be paid to a beneficiary for life, with a bequest over at the termination of the life estate, the income or profits received1 from süch securities belong to the life beneficiary and not merely the income of a specific fund equal in value to the securities at the time of the testator’s death.</p> <p>The profits o.r surplus which a corporation earns or realizes in the management of its business, and which is paid to stockholders by way of -dividends, whether earned before or after the creation of the trust, is income or profits which go to the life beneficiary.</p> <p>But under a bequest of the income of such specific stock the life beneficiary is not entitled to the proceeds of the sale of rights to subscribe to new capital stock issued by the corporation. Such right of subscription is not in the nature of a dividend or distribution of profits. It is a right which accrues to the owners of the stock as an incident to its ownership. Hence, such subscription rights go to increase the capital of the trust, and the proceeds of a sale of said rights is part of the capital of the trust.</p> <p>When specific stock is put in trust as aforesaid, the trustees are not entitled to set aside a part of the income as a sinking fund to provide for any depreciation in the value of the securities. The beneficiary is entitled to all the income, even though the payment of all such income would reduce the selling value of the securities.</p> <p>By virtue of the amendment to section 3320 of the Code of Civil Procedure, made by Laws of 1904, chapter 755, trustees to whom such specific securities are bequeathed in trust are entitled to one-half commissions, payable out of the corpus of the estate, for receiving the principal thereof. The words “All sums of principal,’’ as used in said section as amended, apply as well to securities in bulk as to money received.</p> <p>It seems, that though such trustees are empowered to sell such specific stock and reinvest the proceeds, this power would not entitle them to any additional compensation, the duty being incident to the proper performance of the duties of the trust. .</p> <p>Although it is a general rule that a beneficiary of a trust cannot be at the same time a trustee, yet where duties devolve upon the trustee other than those relating merely to the performance of the trust for the benefit of the beneficiary, the beneficiary may act as trustee for others interested in the estate. Where there is an active duty imposed upon the trustee for the benefit of remainder-men, the life beneficiary can act as trustee, and under such circumstances the trustee is entitled to commissions, although a life beneficiary.</p>

<p>Negligence — death of employee by falling down elevator shaft — elevator moved from position in which it was left by intestate—■insufficient light — contributory negligence.</p>

<p>This is an appeal from an interlocutory judgment of the Supreme Court, entered in Jefferson county .clerk’s office April 14, 1903, in favor of the plaintiff.</p>

<p>Appeal from a judgment entered upon a decision after trial at Special Term.</p>

<p>Cross-appeals from a .judgment entered on the report of a referee and from an order granting costs.</p>

<p>Appeal from a judgment entered upon a. decision after trial at Special Term.</p>

Determination confirmed, with costs, on the ground that the reward was offered to persons furnishing information or evidence to secure the conviction of persons guilty of crimes committed prior to its passage, and did not provide for the payment of rewards for conviction of offenses subsequently committed. Hirschberg, P. J., Woodward, Rich and Miller, JJ., concurred; Hooker, J., read for reversal.

—Judgment affirmed,, with costs, on the opinion of.' the court below. (Reported in 47 Miso. Rep. 498.) Order filed. Present — O’Brien, P. J., lúgra-' ham (concurring.in opinion), Laughlin and Clarke, JJ.

<p>Appeal by the plaintiff from an interlocutory judgment, entered in the-office of the clerk of the county of New York,on the 18tb day of September, 1905, sustaining demurrers to the third amended complaint. ■ •</p>

<p>Contempt proceedings—failure to pay alimony — waiver of right to the amount granted, in judgment.</p>