Volume 112 — New York Appellate Division Reports

Appeal by the defendant, William Henderson, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 28th day of November, 1904, upon the report of a referee.

Appeal by the defendant, The Dry Dock, East Broadway and Battery 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 17th day of February, 1905, upon the verdict of a jury .for $3,000, and also from an order entered in said clerk’s office on the 20th day of March, 1905, denying the defendant’smotion for a new trial made upon the minutes.

<p>Appeal by the defendant, The Newark Watch Case Material Company, from a judgment of the Supreme Court in favor of the-plain tiff, entered in the office of the clerk of the county of New York on the 1st day of May, 1905, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term.</p>

Appeal by the defendant, Bernard Goodman, 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 11th day,of January, 1906, granting leave to the plaintiff to serve a so-called “ amended and supplemental complaint.”

Appeal by the defendants, Charles H. Steinway and others, individually and as surviving trustees under the will of Christian Fried- . rich Theodor Steinway, deceased, 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 12th day of August, 1905, upon the report of a referee, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 2d day ’…

Appeal by the defendants, Elmer D. Hollander and another, 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 6th day of Hovember, 1905, upon the decision of the court, rendered after a trial at the Hew York Special Term, overruling the defendants’ demurrer to the amended complaint.

<p>Appeal by the defendant, William MoAdoo, as police commissioner of the city of Mew York, from án, ordér of the Supreme Court, made at the Mew York' Special Tferm and entered in the Office of the clerk of the County' of Mew York On the 11th day of December, 1905. •</p>

<p>Appeal by the plaintiff, John T. Hilton, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 11th day of April/ 1905, upon the dismissal of the complaint by direction of. the court at the opening of the trial at the Hew York .Trial Term.'</p>

<p>Crime — blackmail by attorney — threatening letters sent by attorney to a party in a civil action to compel' settlement thereof— crime may be charged by innuendo —privilege of attorney.</p> <p>An attorney at law employed by plaintiff as counsel to prosecute an action for false arrest, after two trials and one appeal, wrote a letter to the defendant therein, under (he assumed name of "Lewis Jarvis” and on stationery engraved with the heading “Lewis Jarvis, Lock Box 1604, Hew York”—he having theretofore secured said box in the post office — in the guise of friendship and with suggestions of perjury, certainty of ultimate defeat, unpleasant notoriety and ■ increased expense, urged the defendant to make a settlement. On the eve of the third trial, and after an amendment to the defendant’s ¡answer, he again under said assumed name wrote to the defendant that “someone” had obtained from the county clerk’s office a certified copy of both answers and that “May' be théy are to be laid before a Police Magistrate and an application made for a warrant for your arrest upon the charge of perjury * * * Do you want to have it go out-in the community * * * that in 'order to escape, if you possibly can, a third verdict, against you, you have resorted to perjury? * * * What if- the Judge who will try the case this week should take the notion into his head to send the two answers to the District Attorney. * * * There is only one chance for you to get otit;' will you be man enough to take it, and he quick about it; or will you continue to be led like a blind m^tn, upon advice <* * * which, justas surely as you live, will take you to Sing Sing.’’ , - '</p> <p>Upon appeal from a conviction for blackmail,</p> <p>Held, that the jury were- warranted in finding that the defendant, knowing the contents of the letter which threatened to accuse the recipient of the crime of perjury, had sent it with an intent to extort or gain money;</p> <p>That an express, written charge of crime in such letters was not necessary in order "to support a conviction for blackmail. Mo. precise words are needejl to convey a threat. It may be done by innuendo or suggestion;</p> <p>That "no express demand for money is necessary to-constitute the crime of black" mail, as under the circumstances the settlement of the case which was sought to be obtained meant that the accused would receive a percentage thereof as a contingent fee. So long as there is an intent by threat to extort or gain money, the mere form of words is of no consequence;</p> <p>That it is immaterial whether the crime threatened to be charged had been perpetrated, or the defendant had cause to believe that it had been perpetrated, or did believe it. The moral turpitude of threatening, for the purpose of obtaining money, to accuse a guilty person of the crime which he has committed, is as great as.it is to threaten, for a like purpose, a person innocent of crime; That the defendant could not plead the privilege .of an attorney in attempting to collect a just debt. The privilege of an attorney does not extend so far as to sanction- letters written to a defendant to force the settlement of an unliquidated claim of the attorney’s client in which he has a monetary interest.</p>

Appeal by the defendant, The City of Rochester, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 4th day of December, 1905, appointing a referee to take the evidence and report to the court respecting the. alleged violation of an injunction by the defendant, such order having been .made upon the return of an order directing the defendant to show cause why it should not be punished for…

Appeal by the defendants, Charles M. Peabody and another, as executors and trustees under the last will and testament of William H. Peabody, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 28th day of September, 1905 upon the verdict of a jury rendered after a trial at the Erie Trial Term, and also from an order entered in said clerk’s office on the 28th day of September, 1905, denying…

<p>Appeal by the defendant, the Quaker City Cooperage Company, from an interlocutory judgment of the Supreme Court in-favor of the plaintiff, entered in the office of the. clerk of the county of Erie on the 20th day of December, 1905, upon the decision of the court, rendered after a trial at the Erie Special Term,, overruling the defendant’s demurrer to the plaintiff’s complaint. ,</p>

<p>Negligence—injury to workman by tipping of wheelbarrow on' scaffold — assumed risk of workman using common tools — failure to show negligence of master — Labor Law — when scaffold safely constructed.</p> <p>The defendant was. shoveling cement from a wheelbarrow, upon a scaffold composed of three planks laid upon horses. In the act of throwing a shovelful of cement, by reason of his placing his weight upon the outer plank, it sagged, and the wheelbarrow, one leg of which rested on said plank, tipped over and threw the plaintiff from the scaffold to the floor below;' the scaffold consisted of three planks, three inches thick and twelve inches wide, and was supported by “horses” at intervals of from ten to twelve feet. In an action to recover damages for the injury received,</p> <p>Held, that the scaffold was sufficiently safe within the requirements of the Labor Law, which does "not require a fanciful degree of safety in a scaffold erected for temporary purposes;</p> <p>That in the absence of' any proof that any other style of wheelbarrow would have been safer or would have prevented the accident, 'no negligence of the master could be predicated on the fact that the wheelbarrow Was loaded so as to be a little top-heavy; ' '</p> <p>That the defects of the wheelbarrow, if any, were as obvious to the plaintiff as to the defendant, and the accident Was not one that the defendanjr was bound to anticipate, as it would not have happened' if the plaintiff had placed the weight of the wheelbarrow upon the other planks.</p> <p>Hirschberg, P. J., and Rich, J., dissented.</p>

Appeal by the defendant, The Empire State Surety Company; from -an. order of the Supreme Court, made at the Kings .County Special Term and entered in the office of the clerk of the county of Kings on the. loth day of December, 1905, granting the plaintiff’s motiqn for leave to amend his complaint, upon terms.

<p>■ Appeal by.the defendant, Clinton Beckwith, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Putnam on the 13th day of May, 1905, upon the verdict of a jury rendered after a trial at the Putnam Trial Term. "</p>

Appeal by the defendants, Abram S. Post and another; from a judgment of the Supreme Court in favor of the plaintiff,- entered in the office of the clerk of the County of Kings on the ,25th day of October, 1904, upon the verdict of a jury rendered by direction of the-court, and also- from an order entered in, said clerk’s office .on the 28th day of October, 1904, denying the defendants’ motion for a new trial made upon the minutes,

Appeal by the plaintiff, Benjamin Hyde, 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 20th day of June, 1905, denying the plaintiff’s motion to vacate a judgment for costs theretofore entered in said clerk’s office in. favor of the defendant Robert O.. Andérson. • _■■■■■ . The plaintiff made a motion to the Special Term for leave to discontinue.

Appeal by the defendant, The New York Life Insurance Company, from a judgment of the Supreme Court in favor of the piaintiffi, entered in the office of the clerk of the county of Kings on the 15th day of February, 1905, upon the verdict of a jury for $325, and also from an Order entered in. said clerk’s office on the 28th day of February, 1905,’ denying the defendant’s motion for .a new trial made Upon the rhimites.

Certiorari issued out of the Supreme Court and attested on the 3d day of October, 1904, directed to John McGaw Woodbury, as commissioner of the department of street cleaning of the city of Rew York, commanding him to certify and return to the office of the clerk of the county of Kings all and singular his proceedings had in relation to the dismissal of the relator from the uniformed force of the department of street cleaning.

Appeal by the defendant, the City of Middletown, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the .county of Orange on the 1st day of March, 1905, upon the decision of the court, rendered after a trial at the Orange Special Term, overruling a demurrer to the complaint on the ground that, the complaint does: not state facts sufficient to constitute a cause of action.

Appeal by the defendant, The Tillage of Hammondsport, from an order made by-the county judge of Steuben county, in aii action in the Supreme Court, and entered in the office of the clerk of the county of Steuben on the 14th day of March, 1905, modifying an order theretofore made for the examination of the plaintiff before trial.

Appeal hy the relator, Martin H. Walrath, from an order of the Supreme Court, made at the Rensselaer Special Term and entered in the office of the clerk of the county of Rensselaer on the 15th day of February, 1906, quashing a writ of certiorari allowed in the above-entitled proceeding on the 6th day of January, 1906.

<p>Courts — Appellate Division has jurisdiction of proceedings to remove " justice of Special Sessions in city of New York— Daws of 1895, chapter 601, not repealed —provision that said justices shall not carry on business is constitutional.</p> <p>The Laws of 1895, chapter 601, providing for the appointment of .five justices in the Court of Special Sessions in the city and county of New York, and giving (§ 28) the power to the Appellate Division of the "Supreme Court in the first department to remove said justices for cause after‘due notice and an opportunity to be heard, was not repealed by the enactment of the subsequent charters of said city and is still in force.</p> <p>Hence, under said act and pursuant to section 17 of article 6 of the State Constitution providing that “justices of the peace and judges or justices of inferior courts not of record, * * * may be removed for cause, after due notice and an opportunity of being heard, by such courts as are or may be prescribed by law,” the Appellate Division in said department has jurisdiction to hear a petition for the removal of a justice of that court.</p> <p>The provision in the act aforesaid that such justices shall not carry on any business is not in violation of the Constitution.</p>

<p>TTial — change of place, of trial — waiver of defects in motion — convenience of witnesses — county where cause of action aróse.</p> <p>When, on a motion by defendants -to change a place of trial, the. plaintiff has waived defects in the original grounds of the. motion and has consented that-the same be heard on its merits as if made on the ground of the convenience of .witnesses, the plaintiff cannot thereafter on appeal assert the defects waived.</p> <p>When the-defendants-have shown that a larger- number of necessary and material witnesses reside in the county to which they desire the trial changed, a condition imposed by the Special- Term, in refusing the change of venue: that the plaintiffs admit the validity of signatures to-certain instruments is not suf-. .ficient to destroy the necessity of . the witnesses, because "a party should not be compelled on such a motion to disclose his evidence to his adversary.</p> <p>When-the transactions o.ut.of which the issues arose took place in the county to-which the venue is sought to be transferred, the cause of actión may be said to have arisen in such county, although it involves insurance policies written in another State. '</p>

Appeal by the defendants, Charles T. Howe and another, composing the firm of. Charles T. Howe and Company, 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 17th day of May, 19Q5, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 23d day of May, 1905, denying the defendants’ motion for a new trial ma.de upon the minutes.

<p>Negligence — injury by fall of fare register in surface car—res ipsa loquitur — latent defects — duty of inspection by testing by blow of hammer-^- verdict warranted by evidence — credibility of witnesses.</p> <p>When, in an action for damages for personal injuries, it is shown by the plaintiff that a fare register in the defendant’s car fell without apparent cause and struck the plaintiff, the maxim of res ipsa loquitur applies, and the burden is on the defendant to explain the accident. .</p> <p>When, in order to meet this burden, the defendant shbws. that the fall was caused by the breaking of an iron prong which held the register, and which had a hidden “air bubble'’ or flaw not discernible on inspection, and in reply the plaintiff gives evidence that striking the prong with a hammer was a sort of inspection which would have disclosed the flaw, a verdict for the plaintiff is warranted by the evidence and it is error to set it aside.</p> <p>Charge concerning the credibility of witnesses considered and approved,</p>

<p>Appeal by the defendant',. The Long Acre Square Building Company, from an order of the Appellate Term affirming a final order iii summary proceedings.</p> <p>The respondents instituted a summary proceeding -to recover from the appellant the possession of real property, under the provisions of the Code of Civil Procedure (§ 2231 et seq.) relating to that subject. A petition was presented to a Municipal Court of the city of -New York in which was. set forth,, among-other things, that. “ the trustees of Henry Astorl’ were the' landlords of the premises described therein and which-by-an. agreement in writing and on or, about' the 13th of October, 1902, they leased to one Milton L. Bouden,. as tenant, for a term of twenty years from the 1st day of Hovember, 1902, and that by the terms of the agreement Bouden undertook and promised to pay to the landlords as rent the sum of $15,200 per annum until the 1st of May, 1913, and thereafter and during the • remainder of the term the sum of $16,340 per annum, payable in equal quarter-yearly payments on the first days of February, May, August and H ovember in each and every year of the term; and also to pay all and every assessment or assessments, tax and taxes whatsoever as well extraordinary as ordinary which may be assessed, levied or imposed upon the premises or any part thereof; that thereafter and on or about the 5th of M&y, 1903, Bouden assigned the lease to the Long Acre Square Building Company, a domestic corporation, which became-and was at the time of the presentation of the petition the tenant of the premises and had entered into possession and occupied the same under the terms and conditions, of the agreement and as such tenant it duly attorned to the landlords; that on the 1st of May, 1904, there was due to the landlords under and by virtue of the indenture of lease the sum of $3,800, being the rent from the 1st of February, 1904, to the 1st of May, 1904, and there also remained due and unpaid for more than sixty days after the Same became due and payable the sum of $692.69 taxes for the year 1903, which had been duly imposed upon a portion of the premises. In the petition it is then set forth that at least three days’ notice in writing requiring in the alternative the payment of said rent or the possession of the said premises had been served on behalf of the landlords upon the Long Acre Square Building ‘Company, and that at least three days’ notice in writing requiring in the alternative the payment of the tax or possession of the premises had also' been served by the landlords upon the Long Acre Square Building Company, and that such service was made upon that company on the 12th day of May, 1904, at three-fifteen o’clock p. at., by delivering to and leaving with Henry M. Work, its treasurer, personally a true copy of such notice; that said notice in writing was annexed to the petition together with due proof of its service with the certificate of the city marshal serving same, which annexed notice and due proof of service was made a part of the petition. It is also set forth that default was made in the payment of the rent and taxes pursuant to the agreement under which the said premises were, held, and that the Long Acre Square Building Company held over and continued in the possession of the premises without the permission of the said landlords, after default in the payment of the rent, and taxes as aforesaid. Thereupon a final order to remove the tenant (and a mortgagee, who was made a party) from the possession of the premises was prayed for. The notice in writing annexed to the petition and made part thereof is in due- form. It contains a full description of the premises and states that there is justly due to the landlords the sum of $3,800 for one quarter’s rent for the quarter ending May 1, 1904, of the premises described and that there is due and remaining unpaid for a period of- sixty days since the 'same became due and payable the sum of $692.69 for taxes for the year 1903, imposed upon a portion of the aforesaid premises; “ all of which' you are required to pay 'on or before the expiration of three days from the day of service of this notice, or surrender the possession of the said premises' to the landlords, in default- of which the’ landlordsx shall proceed under the statute to recover the possession thereof” On this notice there is indorsed a certificate of service of C. A. Farley, city marshal, borough of Manhattan, stating that on the 12th of May, 1904, at three o’clock and fifteen minutes in the afternoon, he served the notice on the Long Acre Square Building Company by delivering to and leaving with Henry M. Work, the treasurer of the said corporation, personally, a true copy thereof, at the same time showing him the original; that such service was made at Ho. 71 Broadway, in the borough of Manhattan, and that the marshal knew the person so served to be Henry M. Work, and knew him to be the treasurer of the Long Acre Square Building Company, the tenant mentioned and described in the notice. Upon the petition, a justice of the Municipal Court issued a precept to the Long Acre Square Building Company (and to the mortgagee) by which they were required forthwith to remove from the premises designated and described,-being the same premises mentioned in the petition, or show cause before such court on the 25th day of May, 1904, why possession of the premises should not be awarded and delivered to the landlords or the petitioner. The precept was served on the . twentieth of May on Henry M. Work, treasurer of the building company. On the return day an answer was interposed by Joseph J. Corwin, the president of the Long Acre Square Building Company, which he describes as “ his answer ” to the petition, in which the allegations of the petition to the effect that the Long Acre Square Building Company vras the tenant and in possession of the premises described therein, and that Charles A. Peabody and the trustees of the Astor estate are landlords are admitted; and then he proceeds to state that he “has no knowledge or information sufficient to form a belief as to the rest of the allegations contained therein, and, therefore, denies the same.” The proceeding came on for trial at the Municipal Court before a justice without a jury on the 1st day of June, 1904. Proof was given of the non-payment of rent and of the non-payment of taxes on a portion of• the premises for the year . 1903. The trial was continued on the second day of June, when the landlords called asa witness Henry M. Work, the treasurer of the Long Acre Square Building Company. He testified as follows : “ I know that the tenant was served with the three days’ notice and demand to pay the taxes and rent or move ; that was on the 12th of May; that was served upon -myself. I am the treasurer of the company; the■ company has not paid the rent; it has not paid the taxes.” On cross-examination he stated that he could not say that the taxes for 1903 on a portion of the premises had not been 'paid, but that they had not been paid by him, and he did not know whether any one else for the corporation had paid them; ,but that he was the officer who would pay bills of taxes and pay the rent for the company. The Long Acre Square Building Cqmpany then called as a witness on its behalf the attorney for the company who represented it in that proceeding. He testified that on the thirty-first of May (which was after the proceeding was instituted and after issue joined) at the request of Joseph J. Corwin, president of the Long Acre Square Building Company, he paid taxes amounting to $732.32 on the premises in question, which amount included the taxes mentioned in the petition, and he also paid the water arrears, amounting to $8.97. The bill for taxes was offered in evidence. A check was produced which the witness testified had been paid subsequent to the 31st of May, 1904. The landlords’ counsel objected to the tax bill and receipt being received in evidence, but the court admitted them. The tenant rested its case upon that proof, whereupon its counsel moved to dismiss the proceeding, which motion was denied, and the court directed that a warrant should issue removing the tenant from the premises for the non-payment of rent and also for the non-payment of taxes. The justice indorsed on the precept the following: “ Final order is hereby-made the 2nd day Of June, 1904, in favor of said landlords awarding to said landlords the delivery of the premises within described by reason of the tenant’s, non-payinent .of said rent and said taxes, together with costs.’’ From this final order the tenant appealed to the Appellate Term,of the Supreme Court, - where the order was affirmed by a divided court (47 Mise. Bep. 629; 94 if. T. Supp. 507). By permission, a further appeal was taken to this court. The order appealed from is assailed on three grounds: First, that no jurisdiction was conferred upon the Munich pal Court because of insufficiency of the petition in that such petition does not contain an allegation of proper service of the notice requiring the payment of rent and taxes ór, the surrender of the . premises.. Second, that there was a defect in the proof Of service, it not having • been shown that the original notice was' exhibited, at the time of the alleged service thereof. Third, that the final order ■ was unauthorized, because it 'appeared on the trial that the taxes for the year 19Ó3 had been paid .and that, therefore, the tenant could not be dispossessed for their non-payment,</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 Kings County Special Term and entered in the office of the clerk of the county of Kings on the 15th day of July, 1905, directing the attorneys for the plaintiff to accept service of the defendant’s amended answer.

<p>Certiorari issued out. of the Supreme Court and attested on the, 26th day of Ho vember, 1904, directed to the-board of trustees of the. village of White Plains, New York, commanding them to certify and return to the office of the clerk of the county of Westchester all and singular the proceedings of the said board in relation to the assessments of the relator for macadamizing and improving Broadway in the village of White Plains.</p>

Appeal by the plaintiff, Frank GL West, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Livingston on the 8th day of May, 1905,. upon the verdict of a jury rendered by direction of the court, and also from an order bearing date the 3d.day of May, 1905, and entered in said clerk’s office, denying the plaintiff’s motion for a new trial .made upon the minutes.

Appeal by the defendants, The Town of Ashland and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chemung on the 12th day of September, 1905, upon the decision of the court rendered after a trial at the Chemung Special Term overruling the said defendants’ demurrer to the complaint. -This is a taxpayer’s action to restrain the payment of $1,000 by the county of Chemung to the town of…

Appeal by. the defendant, The Rutland 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 Franklin pn the 15th day of September, 1905, upon the verdict of a jury for $2,000*, and also from an order entered in said clerk’s office on the 16th day of September, 1905, denying the defendant’s motion for a new trial made upbn the minutes.- - One 'McGrath shipped potatoes over the defendant’s road…

Appeal by the plaintiffs, Ellen Farrell and another, as administrators, etc., of Patrick Farrell, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Essex on the 20th day of May, 1905, upon the dismissal of the complaint by direction of the court after a trial at the Essex Trial Term.

Appeal by the plaintiff, Peter Frederick, from an order of the Supreme Court, made at the Fulton Special Term and entered in the office of the clerk of the county of Fulton on the 11th day of December, 1905, vacating and setting aside an execution theretofore issued, in the action. The execution was issued September 14, 1905, upon a judgment docketed in the clerk’s office of said’ county upon the 8th day of April, 1905.

Appeal by the defendant, Robert L. Cutting, from a judgment of the Supreme .Court in favor of the plaintiffs, entered in the office of the clerk of the county of ¡New York on the 8th day of July, 1905, upon the decision of the court rendered after a trial at the ¡New York Special Term.

Appeal by the plaintiff, Lewis L. Fawcett, as receiver, etc., from an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the county of New York-on the-8th day of June, 1905, overruling the plaintiff’s demurrer to. the separate defenses contained, in the answer’of the .defendant, the City of New York.- ’ r . . . ’ ■

<p>, Appeal by the petitioner, the City of New York5 from an order of the .Supreme C^rart, made at "the New York Special Term and. entered in the office- of the clerk of the county of-New York on the -13th day of October, 19.05^ taxing costs, and granting an extra allowance to the respondent herein. '</p>

<p>Appeal by the petitioner, The City of New York, from an orde. 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 ISth.day of October, 1905, granting a motion for the taxation of costs and an extra,allowance under section 1436c of the Greater New York charter (Laws of 1901, chap. 466).</p>

Appeal by the petitioner, 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 tlie'county of Hew York on the 13th day of October, 1905, granting a motion for the taxation of costs' and an extra allowance under section 1436c of the Greater Hew York charter (Laws of 1901, chap. 466).

Appeal by Charles M. Preston, as receiver of .the Hew York Building-Loan Banking Company, and another from a judgment of the Supreme Court in favor of the claimant, Charles P. Bacon,' entered in the office of the cleric of the county of Hew York on the 4th day of December, 1905, upon the report of a referee.

Appeal by the defendants, Clifford L. Miller and another, from certain portions of a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 26th day of August, 1897, upon the report of a referee.

<p>Executors and administrators — power of surrogate to compel executrix of deceased executor to account and pay oyer — éxecutrix of executor only liable for sums received from deceased executor—when such executrix not personally liable for costs.</p> <p>The estate of a deceased executor cannot be charged with the amount of uncol_ lected debts and judgments owing to‘the estate of the-testator.</p> <p>A surrogate under the authority of section 3606 of the Code'of Civil Procedure' has power ttvrequire the executrix of a deceased executor to account for -the acts and doings of the decedent as to trust property which came into his possession and may compel such executrix of a deceased executor to deliver ..over any of the trust property coming into her possession or under her control, but only that which comes under her control. ■ ,</p> <p>Hence, when there is no allegation in the petition or finding in a proceeding to compel such executrix to- account that any trust property held by the deceased "executor came into her possession, no decree can he entered directing her to páy over to herself any property not received as administratrix with theyvill annexed of . the testator, _ -</p> <p>Neither is such exdcutrix of a deceased executor personally liable for the costs óf a proceeding to compel her to account when she has not been guilty of mis- . appropriation of funds, or'of any wrongdoing, although- the deceased executor was guilty of misappropriating the property, of the estate.</p>

Appeal by the defendant, Johnston Livingston, as president of the National Express Company, from an order of the Supréíne Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day* of January, 1906, denying the defendant’s motion to dismiss the plaintiff’s complaint because of his unreasonable neglect to prosecute the action.

<p>Appeal by the plaintiff, Bernard McGovern, 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 26th day of January, 1906, granting,a stay of proceedings to enable the defendant to appeal to the Court of Appeals.</p>

<p>Motion by the defendant, Amzi L. Barber, for a new trial upon a case containing exceptions ordered to be heard- at the Appellate Division in the first instance.</p> <p>The issues of fact were brought to trial at a New York Trial Term held in March, 1905.'</p>

<p>Appeal by the United States Fidelity and Guaranty Company and others from a decree of the Surrogate’s Court of the county of Hew York, entered in said Surrogate’s Court on the 28th day of August, 1905, in so far as said decree modifies the report and decision of the referee by charging the accounting, administrator with the sum of $3,105> deposited in the- Bowery Savings Bank to the credit of Patrick Sheedy, in trust for Johanna Sheedy. ■</p>

<p>Appeal by the defendants, Grace ■ A. Mockridge and another, 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 11th day of May, 1905, affirming and confirming an ex parte order theretofore granted herein.</p>

<p>negligence — employee shoveling snow from electric tracks injured hy short circuit — failure of company to warn of danger— duty to furnish safe -tools.</p> <p>When a member of the electric repair gang of the defendant, company, while removing snow from the tracks with a shovel having a-wooden handle and an iron, scoop, under direction of a foreman, is injured by a short circuit caused by the scoop touching at the same time th'e third rail, which carried a current of electricity, and a bolt projecting from a tie which communicated' with the earth, a verdict for the plaintiff is justified where it, appears that the plaintiff, while knowing that the rail carried a current, had no knowledge Of short circuits, and was never, instructed concerning the danger thereof outside- of a general warning to be careful.</p> <p>A verdict of §1,900 is not'excessive where the plaintiff was burned and one of his eyes injured.</p> <p>It.was the duty of the defendant to furnish plaintiff with- a broom or wooden shovel, especially in the absence of instruction as to the danger of causing a short circuit. •</p>

<p>Principal and agent — real estate broker’s action for commission — failure to show that principal not owning the whole premises had authorized plaintiff to find purchaser.</p> <p>In an action by a real estate broker against a landowner for commissions for negotiating a sale, which the owner refused to consummate, it was shown that the defendant did not own the entire premises to he sold, but only two lots of the entire parcel. The defendant testified that he so informed the broker, adding that he hoped 1¡o procure options on the parcels held by other owners, i^hich it transpired he was unable to do. On the 'contrary,- plaintiff first testified that the defendant claimed to own the whole premises, hut on cross-examination admitted that the defendant only claimed to hold options. In addition there was a letter of the purchaser’s agent in answer to a letter from the defendant . speaking about other owners, which stated the purchaser’s willingness to wait until the defendant could obtain options from the other owners. On the whole evidence,</p> <p>Held, that the plaintiff had failed to meet the burden of showing a contract by the defendant authorizing him to find a purchaser for the whole parcel, and that the weight of evidence was in favor of the defendant.</p>

Appeal by the defendant, the Metropolitan Street 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 Mew York on the 2d day of July, 1904, upon the verdict of a jury for $850, and also from an order entered in said clerk’s office .on the ljth day of J une, 1904, 'denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendants, Alexander Brown and others, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 15th day of June, 1905, affirming a judgment of the Municipal Court of the city of New York, borough of Manhattan, in favor of the plaintiff, entered in the office of the clerk of said court on the 3d day of March, 1905, for the possession of three interest coupons for twenty dollars each, which were formerly attached to. collateral trust gold bond No. 7,800, for $1,000, payable in fifty years from date of issue, with interest at four per cent, payable annually, issued by the Adams Express Company, and due in 1948.</p>

Appeal by the defendant, Jacob Biglizen* from a judgment of the Court of General Sessions of the Peace in and for the city and county of New York, rendered on the 25th day-of October, 1904, convicting the defendant of the crime of rape in the first degree, and also from two orders respectively denying the defendant’s motions for a new trial and in arrest of judgment.

<p>Husband and wife — annulment of marriage—marriage of uncle and niece not incestuous at common law — civil and criminal statutes making suck marriage incestuous are not retroactive.</p> <p>The marriage of an uncle and niece before such marriages were made incestuous and void by statute, will not be annulled, when the wife was not under any . disability at the time of marriage, and there was no fraud or concealment of the relationship, and she voluntarily cohabited with her husband, and has had two children.</p> <p>At common law the marriage of uncle and niece was not incestuous and void, arid the statute making it so is not retroactive. Otherwise the statute would be unconstitutional as impairing the obligations of contracts.</p> <p>For does section 302 of the Penal Code, declaring’ incest a crime, apply to such marriage. ”</p>

<p>Appeal by the defendant, Charles A. Wingert, from a final 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 18th day of October,, 1905, directing the specific performance of a contract to purchase real estate, with- notice of an intention to bring tip for review upon such appeal an interlocutory judgment entered in said clerk’s office on the 24th day of August, 1905.</p>

Appeal by the defendant, the Union Eailway Company of New York city, from a judgment of the Supreme Court in favor of the plaintiff, entered in the -office of the clerk of the county of ISTew York on the 28th day of June, 1905, upon the verdict of a jury for $3,500, and also from an order entered in said clerk’s office on the 14th. day of July, 1905, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the. defendants, Begina Binninger and others, from certain portions .of a judgment of the Supreme Court in favor of the plaintiffs, 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.' .

Appeal by the defendant, The Sun Printing and Publishing Association^ 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 21st 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 amended complaint herein. .

Appeal by the plaintiff, Gottlieb Treffinger, from an interlocutory judgment of the Supreme Court in favor of the defendant,; entered in the office of the clerk xof the county of New York on the 13th day of November, 1905, upon the decision .of the court, rendered after a trial at the New York Special Term, sustaining the ’defendant’s demurrer to the second amended complaint.

<p>Will construed—devise of remainder to children of testator or their legal representatives — specific performance — when title of life tenant and remaindermen is marketable.</p> <p>Action for specific performance .of .contract to buy lands.</p> <p>The vendor acquired title by conveyance from the wife,and children of a testator whose will devised all his property to his wife “ for her sole and separate use for and during the term, of her natural life; and on her decease to my children br to their legal representatives.” The vendee refused to take title on the ground that the words “or their legal representatives” werewords of substitution and postponed the vesting of the remainders by creating remainders in the heirs of such of the testator’s children as should die during the life of the life tenant, who was still living.</p> <p>Held, that though the remaindermen took possession “ on her decease ” (the life tenant’s decease), such words as “ on,” “ when,” “ after,” and “ from and after ” standing .alone do not of themselves make a remainder contingent unless their ^ meaning is enlarged by the context. They relate to the time of enjoyment and not to the time the interest vests, for the law favors the vesting of estates;</p> <p>That though the words “ legal, representatives ” refer technically to executors or administrators, yet they may also mean heirs or next of kin, and as here used mean the heirs of the testator’s deceased children;</p> <p>That the intent of the testator was to vest absolute title to his real estate in such of his children as were living at his death, and in the heirs of such as may have died before that event, and that only the time of enjoyment was postponed until the death of the widow;</p> <p>That as none of the children had predeceased the testator, and all had joined with the life tenant in a conveyance to the vendor, his title was marketable and he was entitled to specific performance.</p> <p>Held, further, that the situation was not one where, owing to a doubtful title, the property would not he forced upon the purchaser, for the validity of the title tendered depended only upon pure questions of law without extrinsic facts being involved.</p>

Appeal by the defendant, the Hew York City 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 Hew York oil - the 10th day of June, 1905, upon the verdict of a jury for $14,000, and also from an order éntered in said clerk’s office on the 10th day of May, 1905, denying the said defendant’s motion, for a new trial •made upon the minutes.

Appeal by the defendants, The Manhattan Bailway 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 Mew York on the 5th day of July, 1905, upon the decision of the court rendered after a trial at the Mew York Special Term.

Appeal by the defendant, the American District Telegraph, Company, from an order of the Appellate Term of the Supreme Court, entered on the 27th day of October, 1905, affirming a judgment of the City Court of the city of Mew .York in fayor of the plaintiff, entered in the office of the clerk of said court on the 9th day of June, 1905, upon the verdict of a jury, and also affirming an order ■ of said City Court, entered in said clerk’s office on the 9th day of June, 1905,…

Appeal by the plaintiff, Charles S. Closson, from an order of the Supreme Court, made at the Saratoga Trial Term and entered in the office of the clerk of the county of Saratoga on the 27th day of February, 1905, as resettled, by an order ^entered 'in said clerk’s-office on the 27th day of March, 1905, setting aside the verdict Of a jury theretofore rendered in favor of the plaintiff and awarding the ■defendant, a new trial of the action.

Appeal, by the defendants, - Max- Rubinson and another, from a judgment of the County Court of Kings county in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 28th day pf Kovember, 1904, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 6th-day of December, 1904,' denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, The Cranford Company,’ from a judgmént of the Municipal Court of the city of Mew York in favor of the plaintiff, entered in the office of the clerk of said court on the 7th day of April, Í905.

Appeal by the plaintiffs, Eugfene A. Rudiger and another,' from an interlocutory judgment of the Supreme Court, entered, in the office. of the clerk of the county of Kings on the 7th day of April, 1905; also 'from an order entered in said clerk’s office on the l-bth day of May, 1905', resettling and amending the findings of fact, and also from an order entered in said clerk’s office on the 25th day of May, 1905, dénying the plaintiffs’ motion to vacate and set aside said…

Appeal by the defendant, Charles S. Lindley, 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 7th day of March,. 1905, upon the decision of the court rendered after a'trial at the Westchester Trial Term; a jury having been waived.

Appeal by the defendant, The City o.f Mount Vernon, 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 6th 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 13tli day of June, 1905, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Robert Coble, from a judgment of the County Court of Westchester county in favor of the plaintiff, entered in the office of the clerk of the county ovf Westchester on the 26th day of April, 1965,, upon the verdict of a jury for $300, and also from an order entered in said clerk’s office on the 16th day of April, 1905, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Leander Brink, from a judgment of the County Court of Orange county in favor of the defendants Stratton and Brown, entered in the office' of the clerk of the county of Orange on the 29th day of December, 1904, upon the verdict of a jury dismissing the complaint as to said defendants, and also from an order entered in said clerk’s office on the 29th day of December, 1904, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, George E. Faile, 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 Westchester, on the Í4th day of October, 1905, denying the said defendant’s motion for the cancellation of the docket of a deficiency judgment herein.

Appeal by the defendant* Clarence Yining* from a judgment of the Municipal Court of the city of Rew York, borough of Brooklyn, in favor of the plaintiff, rendered on the- 25th day 'Of May, 1904. . ,

Appeal by the defendant, The Shaniey 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 29th day of May, 1905, upon the verdict of a jury for $6,500, and also from an order entered in said clerk’s office on the 8th day of July, 1905, denying- the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The City of Yonkers, from a- judgment of the Supreme Court in favor of the plaintiff, entered in-the office of the clerk of the comity of Westchester on the 7th day of. November, 1904, upon the decision of the court rendered after a trial at the Westchester. Special Term.

Appeal by Samuel H. Coombs and another from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 31st day of July, 1905, removing said appellants from the office of executor, etc., of Henry Waterman, deceased.

Appeal by the defendant, The General Supply and Construction 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 4th day of April, 1905, upon the verdict of a jury for $300, and also from an order entered in said clerk’s office on the 10th day of April, 1905, denying the defendant’s motion for a new trial made upon the minutes.

Appeal in- each of the above-entitled actions by the defendant,' the Degnon-McLean Contracting Company, from a judgment of the Supreme Court in favor of the plaintiff in each action, entered in the office of the clerk of the county of Kings on the 23d day of March, 1905, upon the verdict of a jury in the first action for the sum of $250, and in the second action for $1,000, and also from an order in each action entered in said clerk’s office on the 24th day of March, 1905,…

<p>Contract—master and servant—failure to establish contract for services for definite time.</p> <p>The burden is on the servant suing on a breach of a contract of employment to show that he was hired for a definite period, and when in contradiction to his uncorroboiated testimony there is the testimony of the employer and two persons present at the hiring showing that the same was at a weekly rate, and that, owing to the nature of the trade, the custom of the employer was to hire by the week, the weight of evidence is with the defendant..</p>

<p>Conversion;—effect of failure to object to charge as to value.</p> <p>When, in an action to recover certain shares of stock or the value thereof, the court charges that the def endant must return the stock or pay the value thereof, '“which, on the evidence, I charge you’is $1,740,” the defendant cannot, on . appeal,, raise the point that the value was not. the proven value at 'the time of trial, when he has taken no exception to such charge.</p>

Aureal by the plaintiff, Daniel W. 'Sutherland, 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 29th day of. May, 1905, upon the dismissal of the complaint by direction of the coiirt after a trial at the Kings County Trial Term.,

<p>Principal and agent — real estate broker not entitled to commissions when parties cannot agree on terms of sale. .</p> <p>Although a real estate broker procures, a purchaser who is willing and able to pay this, price asked, he is not -entitled to commissions if the minds of the par- . ties do not meet and the sale is not consummated by reason of a lack of agreement as to the time when the transaction should be closed.</p>

Appeal by the defendant, the Eglee Bunting 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 6th day of March, 1905, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 18th day of March, 19.05, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, The Larchmont Horse Railway 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 Westchester on the 18th day of January, 1905, upon the verdict of a jury for $7,750, and'also from an order bearing date the 26th day of October, 1904, and entered in said clerk’s office denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, Olaus Doscher, from a judgment of the County Court of Rings county in favor of the plaintiff, entered in the office of the clerk of the county of Rings on the 26th day of Juno, 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 the defendants, Patrick J. Flahive 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 Orange on the 8th day of March, 1905, upon the decision of the court rendered after a trial at the Orange Special Term in a suit- to foreclose a mechanic’s lien filed under chapter .37 of the Laws of 1902 (amdg.

<p>Appeal—case — effect of absence of certificate that case contains all the . evidence.</p> <p>When no motion' has been made for a nonsuit on the ground that the evidence does not establish, a cause of action, and' there is no certificate that the case contains all.the evidence, the appellate .court is limited to a. review of the exceptions and cannot review the questions of fact.</p>

Appeal by the plaintiff, Charles E. Dancy, Jr., from a judgment oE the Supreme Court in favor of the defendant, entered in the office of the.clerk of the county of Richmond on the 19th day of* April, 1905, upon the dismissal of the complaint at the opening of plaintiff’s case, upon a trial at the Richmond Trial Term.

Appeal by the defendant, the Kellogg Manufacturing 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 15th day of June] 1905, upon the verdict of a jury for §1,700, and also from an order entered in said clerk’s office on the 15th day of J une, 1905, denying the defendant’s motion for a new trial made upon the minutes.

Reargument of an', appeal by the defendant-, Isabel H. Gerry, from a judgment:of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of the county of Westchester on the 26th ,day of ¡November, 1904, upon the- decision of the court-, in an action brought to foreclose a' mechanics’ lien .filed by the plaintiff’s assignor and by the other defendant lienors wherein judgment was entered against the defendant, Isabel H.…

<p>Appeal by the defendant, Saverio Gallo, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk' of the county of Kings oh the 16th day of February, 1905, upon the verdict of _a jury, and also from an order entered in said clerk’s office .on the 23d day of March, 1905,. denying the. defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Frederick S. Myers, from a judgment of the Municipal Court in favor of the defendant, entered in the office of the clerk of said court on the 14th day of June, 1905.

Appeal by the defendants, Thomas H. Stewart and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the; office of the clerk of the .county Of Kings on the 8th day of February, 1905, upon the decision of the court, rendered after a trial at the Kings. County Special Term, adjudging 'the con-. veyance' made by the defendant Thomas H. Stewart to the defendant Ella F. Stewart to be void' and setting aside the same.

Appeal by the defendants, William Stevenson 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 Rings on the 25th day of June, 1904, upon the verdict of a jury for $2,500, and also from an order entered' in said Clerk’s office on the 7th day of June,. 1904, denying the 'defendants’ motion for a new trial made upon the minutes. ’ ■ ■ „ ' -

<p>Appeal by Almira Comfort and others, from a decree of the. Surrogate’s Court of‘the county of Nassau, entered in said Surrogate’s Court on the 31st day of May, 1905, admitting to probate the will of Abigail Browep after a contest over her testamentary capacity.</p>

Appeal by Mary Milligan Jensen, from a decree of the Surrogate’s Court of the county of Orange, entered in said Surrogate’s Court on the 12th day of July, 1905, finally and judicially settling the accounts of the administrators of the estate of John Milligan, deceased. i

Appeal by the Comptroller of the State of Mew York from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 27th day of December, 1905, affirming an order entered on the 7th day of June, 1905, assessing a transfer tax upon the estate of Mary J. Avoy, deceased. .

Appeal by the. defendant, H. & H. Reiners, from a judgment of the Supreme Court in favor of the plaintiff for damages for the death of her intestate by the negligence of the defendant, entered in the office of the clerk of the. county of Kings upon thti verdict of a jury rendered after a trial at the Kings County Trial Term, - and also from an order entered in said clerk’s office denying the defendaht’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Marshall J. Corbett, from a judgment of the Muncipal'Court' of the city of Hew York in favor of the . plaintiff.</p>

Appeal by the defendant, Michael Mullaney.} from adjudgment of the Municipal Court of the city of Hew York in favor of the plaintiffs, rendered after a trial before the court without a jury. The complaint is for goods-sold and delivered to the defendant and allegés that the goods- were clothing, which were used by the defendant’s children, and that they were necessaries for the said children, and this was all admitted at the trial.

Appeal by the defendant, the Metropolitan .Realty Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 11th- day of March, 1905, upon the verdict of a jury for $1,138.25, and also from an order entered in said clerk’s office On the. 14th day of March, 1905, denying the defendant’s motion for a nejv trial made upon the minutes. ■ Action for damages to chattels by negligence.

Appeal . by the defendant, the Hartog and Beinhauer Candy. Company, from a judgment of the'Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county óf Kings on the 6th day of May, 1905, upon the verdict of a jury for $7,500, and also from an .order entered in said clerk’s office on the.23d day of May, 1905, denying the defendant’s motion for a new trial made upon the minutes. ' ■ ' ■ The action is for damages for personal injuries.

Appeal by the' defendant, The Baltimore Machine and Elevator Company,-from a judgment of the Supreme Court in favor of the. plaintiff, entered in the office of the cleric of the .county of Kings on the 22d day of May, 1905,, upon the verdict of a jury for $3,750., • and also from an order entered in said clerk’s office on the 22d day of May, 1905, denying the defendant’s motion for a new trial made . upon the minutes. Action by servant against master for negligence.

Appeal by the plaintiff, Mary San Filippo, 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 27th day of January, 1905, upon the dismissal of the complaint by direction of the'court after a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 17th day of January, 1905, directing the dismissal of the complaint. ' The actio.ii was for damages .for…

Appeal by the plaintiff, Joseph W. Mathers, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 2d day of August, 1905, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case upon a trial at the Westchester Trial Term.

Appeal by the defendant, Helen M. Gridley, 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 13th day of April, 1904, upon the verdict of a jury rendered by direction of the court after a trial at the Kings County Trial Term.

<p>Tax Law — surrogate may be compelled by mandamus to order appraisal of estates subject to transfer tax — petition may be on information and belief.</p> <p>Section 330 of chapter 908 of the Laws of 1896, as amended, requiring the surrogate upon his own motion or upon the application of an interested' party, including the Comptroller of the State, to order an appraisal of" estates subject to a transfer tax is mandatory and not discretionary. Compliance- by the surrogate therewith may be compelled by mandamus on the relation of the State Comptroller, as the duty of appraisal is ministerial.</p> <p>Such writ may issue on a petition verified by the State Comptroller setting forth fact's showing the jurisdiction of the surrogate, although the allegations are made upon information and belief.</p>

Appeal by Julia D. Haviland and. - others from various portions of a decree of the Surrogate’s Court of the county of Westchester, entered in said Surrogate’s Court on the 17th day of May, 1905. ■

<p>AfPEAL/by the,defendant, Pabst Brewing Company, 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 28th day of June, 1905, upon the decision of the court rendered after a trial at the New York Special Term.</p>

Appeal by The People of the State of New York and by the relator, William Travers Jerome, as district attorney of the county of New York, from an order of the Supreme Court, madd at the New'York Special Term and entered in the.office of the-clerk of the county of New York on tlie'-'lSth day of February, 1906, deny-, ing an application for an absolute writ of prohibition and setting aside an alternative writ of prohibition,

Appeal by the plaintiffs, Henry Clews and others, from an order of the Supreme Court, made at the New. York Special Term and ■entered in the office of the clerk of the county of New York on the. 28th day of February, 1906, opening a default and vacating a judgment entered upon an inquest.

' Appeal by the defendant,, the New York, Susquehanna and Western Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the offiee of the clerk of the county of New York on the 16th day of May,' 1905, upon the verdict.of a jury for $6,000, a$ amended by an order entered on the 7th day of June, 1905, and also from an order entered in said clerk’s office on the 7th day of June,-1905, denying the defendant’s motion for a new trial made:…

Appeal by the .plaintiff, Pauline Bosenthal, from a judgment of the Supreme Could in favor of the defendant, entered in the office of the clerk of the county of Bew York on tile 11th day of October, 1905, upon the-dismissal of the qomplainf by direction of the ■court at the close of the. plaintiff’s case; after a trial at the Bew York Trial Term.

Appeal by the plaintiff, Eina Soronen, from a judgment of the Municipal Court of the city of Hew York, bbrough of Brooklyn, in .favor of the defendant, rendered on the 2d day of June, 1905.

Appeal by the defendant, The American Clothing Company, from an order of the Municipal Court of the City of Hew York, entered in the office of the clerk of said court on the 31st day of January, 1906.

Appeal by the defendant, Hicholas J. Hayes, fire Commissioner of the city of Hew York, as trustee, etc., from a judgment of the Supreme Court in favor of the. plaintiff, entered i-n the office of the clerk of the county of -Kings on the 21th day of February, 1905, upon the decision of the court rendered after a-trial at the Kings County Special Term. • '

<p>Appeal by the plaintiff, The Peoplé of the State of New York, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county-of. Suffolk on the 25th day of November, 1905, upon the decision of the court, rendered after a trial at the Suffolk Special Term, dismissing the. complaint upon the merits.</p>

<p>Appeal by the defendant, the Citizens’ Insurance Company of . Missouri, from a judgment of the Supreme Court in favor of the, plaintiff, entered in the office of the clerk of the.county "of Oneida, oh the 30th day of October, 1905, upon, the report of a referee.</p>

Appeal by the plaintiff, Bichard Llewelyn Bees, from a judgement of the Supreme Court in favor of the defendant, entered in' the oiEee.of the clerk of the county of Hew York on the 20th day of Hovember, 1905, upon the decision, of the court,, rendered after a trial at the New York Special Term, sustaining the defendant’s demurrer and dismissing the complaint.

Appeal by the, defendants, William McA'doo and others, from an order of the Supreme Court, made at the Kings' County Special Term and entered in the office of the clerk of the county of Kings on the 1st day of Augiist, 1905.

Appeal by the defendant, James P. Silo, 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 3d day of April, 190.5, 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 defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Haight Freese Company,, from a judgment of the Supreme Court in favor of the plain.ti.ff, entered in the office of the- clerk of ■ the county of Hpw York on the 11th day of March, 1905, upon the decision of the court rendered after a trial at the Hew York Special'Term.

<p>Appeal by the defendant, Eliza J. Arkenburgh, as executrix, etc., of Robert H. Arkenburgh, deceased, 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 13th day of February, 1906, upon the decision of the court, rendered after a trial at the Hew York Special Term, overruling the said defendant’s demurrer to the complaint.</p>

Appeal by the plaintiffs, Isaac M. Hays and others, composing the firm of Hays, Levi & Co., 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 6th day of March, 1906, changing the place of trial of the action from the county of Hew York to the county of Broome.

Appeal by the plaintiff, Louis Grimm, from an order of the Supreme Court, made at the Bew York Special Term and entered in the office of the clerk of the county of Bew York on the 5th day of September, 1905, denying the plaintiff’s motion for an injunction pendente lite restraining and enjoining tlxe defendant from constructing, erecting or maintaining on the premises belonging to the defendant, located on the northerly side of East One Hundred and Forty-eighth street, city…

Appeal by the plaintiff, Martha C. Farwell, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 22d day of December, 1905, as - directs the plaintiff to serve a bill of particulars specifying the date when the plaintiff delivered or parted with the possession of certain certificates of stock and the name of the person or persons to whom the plaintiff delivered the stock.

Appeal by George Sohreiber from a decree of the Surrogate’s Court of the county of Hew York, entered in said Surrogate’s Court on the 7th day of March, 1905, admitting to probate a paper purporting to be the last will and testament of Jane Sohreiber, deceased.

<p>Pleading—when complaint fails to state cause of action on bond of surety —* demurrer to bad defense thereto overruled.</p> <p>A complaint against a surety on a.,bond conditioned, for the payment of a promissory note, which does not allege the covenant of the defendant in full or in legal effect, except that “said bond was conditioned for the payment' of’ $5,000,, does not state a cause of action, and a demurrer to a partial defense thereto should be overruled although the defense he bad. A bad defense is good enough for a bad complaint.</p> <p>When such complaint fails to set out the covenant of the bond, allegations of thei breach thereof are mere conclusions.</p>

<p>Husband, and wife — surrogate has power to decide whether Supreme Court acquired jurisdiction in action to annul marriage—when due service of summons in that action shown—application by wife to revoke letters of administration refused when marriage was annulled.</p> <p>In deciding an application by a wife, whose marriage has been annulled, to revoke letters of administration upon her former husband's estate, the surrogate has power to determine whether in the action for annulment the service of the summons ’upon the defendant was sufficient to give the court jurisdiction.</p> <p>But 'no such power exists where jurisdiction in the action for annulment depended upon a fact litigated therein and adjudged in favor of the party claiming jurisdiction. In such case the record is conclusive until set aside or reversed in a direct proceeding.</p> <p>When the record in such action for annulment shows that due service was made upon the defendant and the affidavit of the server states that he handed the summons to the defendant, who threw it away, that he left it by her on the sidewalk, and that it contained a notice of the nature of the action, etc., the server having been examined in open court as to these facts and in addition it being shown that the defendant acknowledged to a third person that she had been served, a finding by the surrogate that the Supreme Court acquired jurisdiction is warranted although the defendant in the proceedings before tlie surrogate three years later presented her affidavit denying due service.</p> <p>. Under such circumstances a revocation.of letters of administration oh the ground . that the applicant was .the intestate’s wife should be refused.</p>

<p>Will construed — when daughter married at the execution of an instrument entitled to take gift made therein to daughters who shall marry — when future distribution of estate will not be determined as academic question.</p> <p>When a will making certain bequests and creating certain trusts provides that “Upon the marriage with her mother’s consent of any daughter, provided, however, that said daughter has not already received from me the said sum, I direct my Executors to pay to said daughter the sum of Fifteen thousand Dollars, being part of her said share in my estate, and I direct my executors to deduct from said Fifteen thousand Dollars any sum which I may have charged against my said daughter on account thereof,” a daughter who married in the lifetime of the testator with his and her mother’s consent, and who at her marriage received from the testator §12,500, is entitled to receive from the executor §2,500 more under said clause of the will, in order to complete the gift of §15,000.</p> <p>Although said daughter was married at the execution of the will, she is entitled to take under the provision aforesaid, which should not he construed to include only the daughters then unmarried.</p> <p>When trusts have not terminated and parties may come into being who may be entitled to share in the estate of a deceased beneficiary, the court will not determine the future, distribution of said estate as a purely academic question.</p>

Appeal by the defendant, Samuel Jaffe, from a judgment of the Court of General Sessions of the Peace in and for the city and county of Hew York, rendered on the 24th day of May, 1904, convicting the defendant of the crime of - an attempt to criminally receive stolen goods, knowing the same to have been stolen.

Appeal by the defendant, The Bisters of the Poor of St. Francis, from a judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of the county of Hew York on the 8th day of Hovembe'r^ 1905, upon the decision of the court rendered after a trial at the Hew York Special Term in an action for the construction of a last will and testáment.

<p>Principal and agent — real estate broker’s action for commissions — property not owned by one holding legal title, — facts not waranting recovery of commissions.</p> <p>In an action by one member of a former firm of real estate brokers for commissions, when it is shown that the defendant did not own the property for the sale of which commissions were claimed, but held it for the benefit of a corporation which had received the consideration on the sale thereof; that the plaintiff’s firm had expressly agreed to ask no commissions from the corporation for whose benefit the land was sold; that the plaintiff’s firm had in fact been paid commissions by the purchaser, and that the defendant personally had never made any express promise to pay commissions, a verdict for the plaintiff is against the weight of evidence.</p>

<p>Employer’s liability insurance — negotiations with insurance agent which do not establish contract of insurance.</p> <p>When a contractor, holding an employer’s liability insurance covering a certain piece of work, on beginning another piece .of work writes to the insurer’s agent that he understands that the policy covers the new work, but is advised by the agent that though the policy does not cover the new work he will bind the risk' until the contractor decides what he wants to do, and is requested to caji the agent up by telephone on the following day, to which communication the contractor makes ho reply, there is no contract of insurance on which the insurer is liable for an injury to an employee occurring ten days after the negotiations.</p>

Appeal by the defendant, Mark Packard, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 30th day. of September, 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 30th day of September, 1905, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Henry C. Hurd, as executor, etc., of Cloyes Hurd, deceased, from a judgment of the County Court of Brie county in 'favor of the plaintiff,, entered in the office of the' clerk of the county of. Erie on thé ,21st day of june^ 1902, upon the vefdict of a jury, and also from an order entered in said clerk’s office on. the 1:2th day of August, 1902, denying' the. defendant’s motion for a new trial made upon the minutes. ■</p> <p>The action was commenced on the 19tli day Of April, 1901, to recover the amount claimed to be due and owing'to the plaintiff from the éstate of one Cloyes Hurd, deceased, represented by the defendant Henry C. Hurd as executor.</p> <p>. Two defenses were interposed by the answer: First, that the plaintiff had no valid claim against the decedent’s- estate, and, second,, that her'alleged cause of aqtion Was barred by section 1822 of the Code of Civil Procedure, because, as alleged, the action was not begun within six months after her claim was disputed or rejected, there being no written consent'filed by the respective parties with the surrogate that said claim may.be heard, etc., as required by said section. Both issues were determined -adversely -to the defendant by the verdict'of the jury. '</p>

<p>Appeal by the defendant, the Bew 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 Onondaga on the 1st day of April, 190.5, upon the verdict of a jury for $750, rendered after a trial at the Onondaga Trial Term. .</p> <p>The action was commenced on the 6th day of February, 1904, under the Employers’ Liability Act, being chapter 600 of the Laws of 1902, to recover damages sustained by the plaintiff on account of injuries alleged to have been caused solely through, the negligence of the defendant. ,</p>

<p>Appeal by the plaintiff, James F. Brooks, as administrator, etc., of Sarah A. Brooks, deceased, 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 26th day of October, 1905, upon a nonsuit directed by the court "at the close of plaintiff’s case, upon a trial at the Erie Trial- Term, and also from an order . entered in said clerk’s office on the 26th day of October, 1905,-denying the -plaintiff’s motion for a new trial made -upon the minutes. , '</p> <p>The action was commenced on the 22d‘day of October, .1903, to recover damages sustained by the plaintiff "because off the- death of his intestate, alleged to have been caused solely through the negligence of the defendant.</p>

Appeal by the defendant, Josiah Fox, from an order- of the County Court of Onondaga county,. entered in the office' of' the clerk of the county of Onondaga on- the 28th day of July, 1905, vacating and setting aside the verdict of a jury theretofore rendered in. favor of the defendant and the judgment entered .tfiercon, and directing a new trial of' the action: ' ■ .

Appeal by the petitioner, John Merow, from an order of the Supreme Oonrt, made at the Erie Special Term and entered in the office of the cleric of the county of Cattaraugus on the 11th day of December, 1905, denying the petitioner’s application for an order vacating and setting aside the return and canvass made .by the inspectors of election of the town of Little Valley, on the 7th day of November, 1905, and the canvass of the board made thereon on the four questions…

<p>Municipal corporation — municipality may require street railway to change its tracks when necessary for street improvements — constitutional law— franchise held subject to police power. .</p> <p>A street surface railroad, which has laid tracks in a city street under a franchise • granted by the municipality and according to a resolution of the municipal • authorities locating said tracks, may thereafter be compelled by the municipal authorities having statutory power to alter and improve streets and to require street railways to change the line of tracks, to remove said tracks and alter the grade thereof as made necessary by proposed municipal improvements in paving and grading‘the'street.</p> <p>Any contract rights acquired by such railway company under a municipal franchise are subject to the police power-of the municipality, and the obligations of such a contract are not impaired within the meaning of the Constitution by requiring the company to alter its tracks as aforesaid.</p> <p>When a municipal hoard of public-works has statutory jurisdiction over street improvements, etc,, its discretion exercised pursuant to statute in changing ' the grade of streets is not subject to judicial review.</p>

<p>Appeal by the defendant, The pity of Syracuse, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Onondaga on the 2d day of November, 1905, upon the decision of the court, rendered after a trial at the Onondaga Special Term, directing the specific performance of a contract to purchase real estate.</p> <p>In November, 1899, the plaintiffs owned a lot in the city of Syracuse at the southwest corner of East Water and Montgomery streets. On the twenty-seventh day of that month a resolution was adopted by the common council of the city directing the mayor and clerk to enter into an agreement to purchase said lot for city purposes for the sum of $21,000, “ free and clear of all incumbrances;</p> <p>Five thousand ($5,000.00) dollars to be paid over before January 12, 1900; the title to which to. be approved of by the Corporation Counsel, and the same to be paid for in such manner as the city is authorized by an act of the Legislature to be passed at the legislative session commencing January lst/1900, and for that purpose the Senator and Members of Assembly of Onondaga County are requested to procure the passage of such act.”.</p> <p>The mayor did not approve the resolution-and it was passed over his veto. The contract was prepared in conformity to the resolution executed by the plaintiffs and presented to. the mayor and city clerk for their signatures,¡but, in disregard of the legislative direction, they refused to execute- the same. ■</p> <p>In February, 1900, a peremptory writ, of mandamus was applied for requiring these officials to sign said contract and the corporation counsel. to certify that the same was “ proper in form and duly authorized.” Thereafter said proceeding was dismissed as to said corporation, counsel on the ground that his certificate was not essential until after the execution of the contract.- The application for the peremptory writvwas denied, but an alternative writ was granted against the mayor- and clerk, to which-a return was made by them. The issues were referred to a referee to hear, try and determine. A report Was made in -favor of the relators therein and the same Was approved by the Special Term and a peremptory writ issued requiring the then mayor and city clerk.-to execute the. agreement, which they did. Upon the refusal of the city to carry out the agreement this áction Was commenced, to compel specific performance of the agreement. .Ho appeal was ever .taken from the judgment in the. mandamus proceeding.</p>

. Appeal by tlié defendant, The Hartford Fire Insurance Company, from a judgment of the Supreme Court in -favor of the plaintiff, entered in the office of the clerk of the county of Allegany on the 18th day of October; 1905, upon the report of a referee,

<p>Fire insurance — knowledge of agent that insured was not owner of property binding upon insurer — parol evidence of such knowledge admissible — creditor of owner who is paid profits of business is not partner.</p> <p>When fire insurance agents with knowledge that the applicant for insurance is not the true owner,, but a creditor of the owner advancing money for the business, issue insurance to .said applicant as owner or trustee, the knowledge that the insured was not the real owner is chargeable to the company, and parol evidence of such knowledge by the agent is admissible, although the policy contains a provision that no agent has power “ to waive any provision or condition of this policy ".unless the policy provides otherwise, and then .such'waiver can only be effective by agreement “ endorsed hereon or added hereto.” ,</p> <p>The fact that the owner of the property in addition to repaying the money loaned by the insured was to pay him a portion of the profits does not make the insured a partner with the owner so as to avoid the policy on the ground that a partnership relation was not disclosed to the agents. _ '</p>

Appeal by the relator, the John Single Paper Company, Limited, 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 12th day of February, 1906, denying the relator’s application for a peremptory writ of mandamus.

Appeal by the defendant, the Utica and Mohawk Valley Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in th.e office of the clerk of the county of Oneida on the 27th day of March, 1905, upon the verdict of a jury for $1,125.10, and also from an order entered in said -clerk’s office on the 31st day of March, 1905, denying the. defendant’s motion for a new trial made upon the minutes..

Appeal by the defendant, the Erie Eailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Livingston on the 25th day of September, 1905, upon the decision of the court, rendered after a trial at the Livingston Trial Term, the jury having been discharged.

■ Appeal by the plaintiff, Charles II. Johnson'from' a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Jefferson on the 9th day of August, 1905, upon the report of a referee awarding .costs to the defendant. ,

- Akpeal by the defendants, Albion L. Page, as ancillary executor, etc., of John M. Toting, deceased, and others, from an interlocutory judgment' of the Supreme Court in favor of the plaintiff and the defendant Upson,, as trustee, etc., entered in the office of the cleric of the county of Hew York on the 31st day of March, 1905, upon, the decision of the cotirt, rendered after a trial'at the Hew York Special Term, directing that the defendant Page, as ancillary executor,…

Appeal by the defendant, John Bi Cole, 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 23d day of January, 1906, substituting the trustee in bankruptcy as a party plaintiff in place and stead of the individuals who have been adjudged bankrupts during the pendency of the action.

Appeal by the defendant, Frederick W. Beetson, as administrator, etc., 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 23d day of February, 1905, upon the verdict of a jury, 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 defendant, the Third Avenue Railroad Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of February, 1906, vacating and setting aside an order made under section 3269, subdivision 2, of the Code of Civil Procedure, entered in said clerk’s office on the 16th day of November, 1905, requiring the plaintiff to give security for costs.

<p>Appeal by the Electric Boat Company and others from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 10th day of January, 1906, requiring Elihu B. Frost, a director, to answer certain questions pursuant to an order for the examination before trial of the Holland Torpedo Boat Company by examining said Frost and Isaac L. Rice as officers thereof to enable the applicant to.frame his complaint.</p>

Appeal by the defendant, John Prigge, from an order of the Supreme Court' made at the Pew York Special Term and entered in the office of the clerk of the county of pew York on the 18th day of January, 1906, as resettled by an order entered on the 31st day of January, 1906, enjoining the defendant during the pendency of the action from soliciting. orders for milk or cream from, and from serving milk or cream to, any or all persons who were customers of the plaintiff while…

_ Appeal by the plaintiffs, Solomon R. Jacobs and another, from that portion' of an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 28th day of February, 1906, which vacates so mucli of a previous order as requires the Mexican Sugar Refining Company, Limited, and Henry J. Braker, its president, to submit to an examination before trial. •

Appeal by the defendants, the Mexican Sugar Refining Company, Limited, and another, from .so much of an order of the Supreme Court, made at the Rew York Special'Term and entered itl the office of the clerk of the county of Rew York on the 28th day of February; 1906, as authorizes an examination before trial of James B. Craven, the treasurer and secretary of the Mexican Sugar Refining Company, Limited.

Appeal by James Lambert, sole heir at law of Johanna Cooney,, deceased, from so much of a decree of the Surrogate’s Court of the county of Monroe, entered in said Surrogate^ Court on the 21st day of December, 1905, as determines that the 5th clause of the will of said Johanna Cooney is valid, and overrules and dismisses upon the merits the objections to the probate of said will.

Motion fór a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, a verdict for the defendant having been rendered by direction of the court after a trial at the Monroe Trial Term in January, 1905.

<p>Negligence—injury to employee by slipping on grease spot—foot caught in unguarded pulley—erroneous charge as to knowledge of master.</p> <p>In an action by an employee to recover damages for injuries received by reason of his foot slipping upon an oil spot on the floor, causing his foot and ankle to be drawn into an unguarded belt and pulley, claimed to have been maintained in violation of theiLabor,Law (§ 81), it is error to grant a,nonsuit upon the ground that the defendant was not liable unless the servant gave notice of the negligence of which he complained, or the same was known to the master, and on the ground that the plaintiff should show actual knowledge by the master or any superior person of the defect of which complaint was made.</p>

Appeal by the defendants, The .City of Watertown 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 Jefferson'on the 9th day of November, 1904, upon the decision of the court rendered after a trial at the Jefferson Special Term.

Appeal by the plaintiff,- James Sargent,- from an order of the ' Supreme Court; made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 19th day of September, 1905, confirming the report of a referee appointed to ascertain the damages sustained by the defendants or either of them by reason of a restraining order granted at the commencement of the action.

.• Appeal, by the' defendants, Charles E. Outterson 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 Jefferson-on the 8th day of January, 1906, upon the decision of the court rendered after a trial at the Jefferson Trial Term, a jury having been waived.

.Appeal by the defendant, the John .Kam Malting Company, from so much of an order óf the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 1st day of December, 1905, as denies the request of the defendant to vacate and' set aside an áward made by arbitrators.

Appeal by the defendant, Archibald S. White, from- a judgment of the Supreme Court in favor of the plaintiff, entered in the ‘office of the cleric of the county of Wyoming.

Appeal by the defendant, The Acker Process Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Niagara on the 26th day of May, 1905, pursuant to an order entered in said clerk’s office on the 11th day of May, 1905, confirming the report of a referee, and' also from the aforesaid order of confirmation.

<p>Negligence — death hy high "tension, electricity entering house circuit-— verdict sustained — when negligence and contributory negligence for ." jury —when lighting contract does ’ not relieve from liability for negligence—evidence — res gestee.</p> <p>Action to recover damages for death caused by electricity. The decedent, hearing buzzing noises in the electric circuit which lighted his house, while making • an investigation,. took hold of an-incandescent light wire in his cellar supposed to carry a harmless current. He received a shock which killed -him.</p> <p>On. an issue as .to whether the. high tension current came from wire's maintained - by the defendant, and for the condition of which the defendant was respon-. sible, or whether it came through a fire alarm wire, which broke and fell upon the high tension wire, for which accident the defendant would not be liable, the court, on all the evidence, ' ■ •</p> <p>Reid, that the question was properly left to the-jury;</p> <p>That it was proper to charge that the defendant was required to use reasonable care in constructing and maintáining-its electric system to prevent the second- " ary current which entered the plaintiff’s house from being charged with a high voltage current;</p> <p>That as the house circuit was supposed not to -carry a high tension current, the question of contributory negligence of the decedent was for the jury;</p> <p>That although the contract for lighting .the house provided that the defendant should not “be liable in any event for damage to person or property arising, accruingor resulting from the use of the light,!’ it did not relieve the defendant from liability for its- negligence; • '• "</p> <p>That declarations made by the deceased to his wife just before the accident; when turning off the switch, in 'response to her asking him to be. cautious, stating" that there was no danger, and that a dangerous, current could not get into the - house, were admissible as part of the res gestae. ,</p>

Appeal by the defendant, the. Utica Drop Forge and Tool Company, from a final judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 27th day of Hovember, 1905, with notice of an intention to bring up for review, upon such appeal an interlocutory judgment entered in said clerk’s office on the 21st day of February, 1905.

<p>Appeal by the defendant, the Switchmen’s Union of _ North America, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on ' the 16th day of September, 1905,. upon the report of a referee.</p> <p>The action is brought to recover upon a certificate of life insurance issued by the defendant, a fraternal insurance society, to one George L. Bewitzer, who has died, in which his mother is named as beneficiary.</p>

<p>Municipal corporation — when corporation counsel of city of second class not entitled to costs of action for benefit Of city — when corporation counsel not entitled to. attorney’s lien.</p> <p>The corporation counsel of a city of the second class, in ordefto he entitled under Laws of 1898, chapter 188, section 418, to the costs of an action brought on behalf of the city, must show not only that‘the city was successful in the action, but that the costs have been collected from the adverse party. .</p> <p>Hence, when in an action to foreclose a lien in favor of the city for $40,000 unpaid taxes the premises are bid in by the city for $17,150, it cannot be said that the city has successfully collected its claim or recovered the costs from the adverse party so as to entitle the corporation counsel to the costs awarded in the j udgment.</p> <p>It seems, also, that a corporation counsel receiving a fixed salary for all services is not entitled to an attorney’s lien on judgments recovered by the city, except when the city has been successful in collecting its claim with costs •from the adverse party.</p>

Appeal by the defendant, Charles M. Joyce, from a judgment of the County Court of Onondaga county, entered in the office of the clerk of the county of Onondaga on the- 14th day of February, 1905, convicting the defendant of the crime of abandoning children under the age of fourteen years.

Appeal by the defendant, Lillian Eodenbaugh, from a judgment of the County Court of Jefferson county in favor of the plaintiff, entered in the. office of the clerk of the co.unty of Jefferson on the 14-th day of July, 1905, affirming a judgment of the City Court of the city of Watertown rendered on the 7th .day of September, 1904, for the sum of ten dollars.

<p>Appeal by the plaintiff, Edward A. Everett, from a judgment of the Supreme Court in favor of the defendants, entered in the office 'of the clerk of the county of St. Lawrence on the 17th day of January, 1906, upon the decision of the court, rendered after a trial at the St. Lawrence Special Term, dismissing the plaintiff’s complaint.</p> <p>At an election held in the village of Potsdam March 21, 1905, there was submitted a proposition for the establishment or "acquisition by said village of a system for supplying the village and its inhabitants with light at a cost not exceeding $40,000. The proposition was adopted by the voters. Pursuant thereto the officers of the village offered for sale bonds of the village to the amount of $40,000 and were proceeding to sell the same. Thereupon this action was 'instituted by the plaintiff, a taxpayer of the village, against the village and its officers to restrain them from issuing or delivering said' bonds and from taking any other proceeding in reference to the establishment or acquisition of such lighting system on the ground that.(the question submitted to the electors of the village combined more thafrone proposition' within the meaning of the Village Law and that the proposed lighting system and the issue of bonds therefor were not on that account lawfully authorized.</p>

<p>Appeal- .by the defendant, The Ludlow Valve Manufacturing Company, from a judgment of -the Supreme Court in ;£ayor of the plaintiff, entered in the office of the clerk of the county of Bensselaer on the l'2th'day of October, 1905, upon the verdict of'a jury for $2,00.0, and also from an order entered in said clerk’s office on the 2d day'of Hovember, 1905, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>This is an action for negligence under the Employers’ Liability Act (Laws of 1902, .chap. 600). Defendant operates in the city of-Troy a machine shop about one hundred and fifty feet long and one hundred feet wide. A gallery-twenty-five or thirty feet in width extends around the interior of the building except one end thereof and about eighteen feet from the floor. In the gallery at the time of the accident there were different kinds of machinery at which about thirty men and boys, including, the plaintiff, were employed.. Through the center of the building, from one end to the'other, moved a large "crane - operated by electricity, and Used for carrying material and delivering it from one place to-another on the floor beneath. This crane reached across the building between the interior sides of the gallery. ■ It moved on wheels, two on each side, ■the wheels on each side being ten or fifteen feet apart. The wheels on either side of the-crane ran on; tracks erected along the interior edges of, the gallery on each side of the building.- The tracks lay on large timbers on the edges of the gallery and two and oneffialf or three feet above the gallery floor. '</p> <p>• Qn December 31, 1903, plaintiff was proceeding to drill- some valves with a drill press iii the gallery. In the performance of this work it. was necessary-.to use wooden boxes with which to hold' the valves in position-while being drilled. Hear .at hand, wás -a la-the about three feet from the track on which the crane moved backward and forward. In this space between the lathe and the track, and on the gallery floor, were the boxes-in question, of different sizes. Plaintiff, went into this space in search of a box about, a foot square, which would fit the valve he was about to drill. He tried one after another in an effort to find one of proper size. In his effort to find a suitable one he proceeded for a distance of about twelve feet along the passageway between the lathe and the track; 'picking up one box after another and not finding any which would fit the valve he carried in his hand, throwing down the boxes and trying others. In this way he proceeded to the end of the passage-? way, and was returning engaged in the same search for a suitable box. After picking up about 100 boxes without finding one which was suitable, plaintiff tripped or stumbled over one of the boxes, and' to save himself from falling, involuntarily threw out his left hand .upon the adjoining track just as the crane was passing, and the wheel ran over and crushed his hand.-</p>

Appeal by the contestants, Lawrence G. Prentice and another, from so much of a decree of the Surrogate’s Court of the county of Jefferson, entered in said. Surrogate’s Court on the 6th day of January, 1906, as adjudges that the 4th and 5th clauses of the 4th codicil of the last will and testament of Eoxanna M. Eoberts, deceased, do not unlawfully suspend the absolute ownership of certain personal property.

Appeal by the defendants, Wellington Hay and others, from a judgment of the Supreme Court in favor of the plain tiff,'entered ¡m the office of the clerk of the county of Clinton on the IOth day of July, 1905, upon the report of a referee.- . ■ These defendants, with James H. O’Heil, Owen W. O’Heil, Heb son Duval, Harvey S. Haff, George Gray and the board of supervisors of the county of Clinton were made defendants in an action by the plaintiff.to restrain the payment.of…

<p>Tax Daw — lands-used "by hospital exempt from assessment,— question as to whether forest lands are intended to be used for cure of consumptives should be left to jury.</p> <p>Assessors cannot assess lands owned by a hospital corporation and used exclusively for hospital purposes, since they are exempt under section 4 of the Tax Law. In assessing such exempt lands the assessors are trespassers.</p> <p>When a hospital corporation is organized for the cure of consumptive patients, and in addition to the lands actually used for hospital purposes in the Adirondacks, it owns a large tract Of uncleared forest land adjacent thereto, the question as to whether the corporation intends in good faith to use all this uncleared land for hospital purposes, so as to entitle it to exemption under said section, is for the jury, and it is error to hold it to be exempt as a matter of law.</p> <p>Cochrane, J., dissented.</p>

Appeal by the defendant, John M. Roberts, from an order of the Supreme Court, made at the Delaware Trial Term and entered in the office of the cleric of the county of Delaware on the 7th day of September, 1905, setting aside the direction of the court dismissing •the complaint herein and granting a new trial of the action.

<p>Appeal by the defendant, the Glen Telephone Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Fulton on the 15th day of September, 1905, upon the decision of the court rendered after a trial at the Fulton Trial Term, before the court without a jury, overruling the defendant’s demurrer to the complaint.</p>

<p>Appeal by Eliza R. Bergstein,' as executrix, etc., of Frederick W. Bergstein, deceased, from an order of the Supreme Court, made at the Saratoga Special Term and entered in the office of th,e clerk of the county' of .Saratoga on the 4th day óf December, 1905, directing that said Eliza R. Bergstein, as executrix as aforesaid, be brought in and substituted, as defendant in the>bove-.entitled action in place of Frederick W. Bergstein, deceased.</p>

<p>Appeal by the plaintiff, Timothy Cadigan, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of' Warren on the 8th day of December, 1905, upon the dismissal of the complaint by direction of the court after a trial at the Warren Trial Term.</p> <p>The plaintiff, under the direction of one Moran, the general fdreman of defendant’s works, and with him and two other, men, was' taking a plug from a six-inch Y branching off from an eight-inch pipe in the basement of, the defendant’s works, and inserting a valve in place thereof,' It was the duty of the two men to lift and put the valve, which weighed about one 'hundred pounds, in place after the plug was removed; it was the duty of the plaintiff to hold a burlap bag in the pipe to prevent the escape of gas after the plug was taken out and while the valve was being inserted, and of Moran to- fit the- valve and finish the work. The eight-inch pipe connected 'the works with the main holder which supplied gas in the village. The work was being done in the basement of the building, a room about eight by eleven feet and about six feet high. The gas works were not shut down while the change was being made, and in some way an explosion occurred, threw down the walls of the building, caused a fire, and quite seriously injured the plaintiff, who brings this action to recover for such injury. He had worked for the defendant about.three and one-half years, principally upon the. streets in making connections in the open air with small pipes. He had assisted twice before in making connections somewhat similar to this in the building, but then the works were shut down so- there was no pressure to force the gas from the pipes. Immediately over the room where this work was going on was the meter room, and there was an opening of about. two feet- in the floor between the •rooms, which hole was nearly -but not qdite over the pipe where the plug Was removed and where the plaintiff was standing, and a - gas jet near' the hole was always burning in the meter room, wffh a small light, to show the quality of the gas at any time. The plaintiff knew that if gas escaped in an inclosed place and came- in contact with the flame, an explosion would result. If the pressure is turned off and the pipe opened, the, gas in the pipe naturally comes out into the open air, and the plaintiff swears he- supposed the pressure was turned off and that the burlap bag Was only being used to hold in the pipe the gas naturally remaining there and which would otherwise escape. When the superintendent .directed Moran, the general foreman, to do this work, he told him the gas must not be shut off as the amount in the tank was low, and Moran told him there were no rubber bags to put in the pipes and that with the pressure on and without the bags the work was dangerous, and the super: intendent said they could not wait, the work must be done and they must take the chance. The plaintiff was not told of the danger, or that, the pressure was still on the pipes. In making changes similar to this the pressure is usually shut off, or a small hole is drilled in the pipe, a rubber bag inserted and then expanded by the air pump so that it will fill the pipe and prevent the escape ofi gas. The evidence shows that it is probable that if either of these methods had been resorted to the accident would not have happened. It is not quite clear whether the lighted gas in the room above caused the explosion, or whether it arose from a spark caused by Moran using a chisel upon the iron pipe. The witnesses say that they saw no spark or light before they heard the explosion. The notice was se "ved" under the Employers’ Liability Act (Laws of 1902, chap. 600, § 2).</p>

Appeal by the defendant, the J. E. Davis Manufacturing Company, from an order of the Supreme Court, made at the Cortland Trial Term and entered in the office of the clerk of the county of Cortland on the 30th day of September, 1905, denying the defendant’s. motion, made upon the minutes, to set aside the verdict of a jury in favor of the plaintiff for $600 and for a new trial of the action.

<p>Life insurance — action lies by stockholder to compel directors of insurance company to account for money squandered — action not barred by section 56 of the Insurance Law — stockholder may sue as such , although complaint shows her to be also a policyholder — when demand that corporation Sue not prerequisite—when complaint properly unites several actions against individual directors.</p> <p>An action against the directors of a life insurance company to recover moneys of the- corporation alleged to have been lost by the negligence of the- defendants may he brought by a stockholder when the corporation as such cannot or will not assert its rights. . -</p> <p>The complaint in such, action is not demurrable 'because the plaintiff'shows herself to be both a stockholder and a policyholder in the company. Both those relations unite to -show her interest in the association and her right to maintain the'action, and do not make two causes of action.</p> <p>As such plaintiff sues the directors personally as a stockholder'for the benefit of the corporation and- does not sue the corporation itself, the action is not barred by section 56 of the Insurance Law, which provides that no judgment providing for an accounting or restraining or interfering with the transaction of.-the: business of such an'insurance company shall be made otherwise-than upon the application of the Attorney-General. The fact that the corporation is also made defendant does not make the action one against the corporation when no relief against it is asked, but it is only brought in in order to receive any recovery had from the directors personally.</p> <p>When it appeals that the defendants sued are all directors of the corporation, and that it would be useless to ask them to sue themselves through the corporation, a demand that the corporation bring the action is not a prerequisite to an action by a stockholder.</p> <p>Although the complaint sets out several specific instances in which certain directors have personally received the moneys alleged to have been wasted by the directors as a whole, it does not improperly unite different causes of action against different individuals when as a whole the complaint shows that the action is brought against all the directors as joint tort feasors by alleging the moneys to have been misappropriated either for their own benefit or for the benefit of others. Such complaint alleges but one cause of action against all the individual directors.</p>

Appeal by the plaintiff, Mary Wakley, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Warren on the 2d day of December, 1905, upon the dismissal of the complaint by direction of the court after a trial at the Warren Trial Term, and also from an order entered in said clerk’s office on the 14th day of December, 1905, denying the plaintiff’s motion for a new trial made upon the minutes.

• Appeal by the defendant, Amos Tryon, from an order of the County Court of Tompkins county, entered in the office of the clerk of the county of Tompkins on the 12th day of January, 1904. The defendant, on 'the complaint of the plaintiff, was adjudged upon a trial before two justices of the peace to be the father of a child likely to be born a bastard.which would be chargeable upon the plaintiffs town.

Appeal by the plaintiff, The People of -the State of New Yorb, from an order' of the Supreme Court, made at the Fulton. Trial Term and entered in the-office of the clerk of the county of Fulton on the 20th-day of May, Í9Ó5, setting aside the verdict of a. jury theretofore, rendered in favor of the plaintiff, and granting á. Hew trial of the action. The action is one brought to- recover a penalty for an alleged violation of the. Agricultural Law.

<p>Appeal by the plaintiff, the St. Regis Paper Company, from an order of the' Supreme Court, made at the St. Lawrence Special Term and entered in the office of the clerk of the county of Franklin on the 10th day of October, 1905, directing the plaintiff to serve a bill of particulars.</p>

Appeal by the plaintiff, Norman Cole, as executor, etc., of Elizabeth Thomas, deceased, from a judgment of the Supreme Court in favor of the,defendant, entered in the office of the, clerk of the County of Warren on the 16th day of October, 1905, upon the decision of the court rendered after a trial before the court without a jury at the Warren Trial Term, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 11th…

<p>Negligence — death, of person intending to take train — when not negligence for defendant to leave freight train standing between station and passenger tracks — contributory negligence of decedent.</p> <p>In-an action to recover for the death of an intending passenger at a railroad station it was shown that the train which the decedent intended to'take had gone, and that on emerging from the station he. found the first track (used as a switch track) occupied by a standing freight train, with an open interval of five feet between two of the cars. Seeing passenger cars standing on another switch track beyond, the decedent, without making any inquiry as to’the whereabouts of .his train, dashed into the opening between the freight cars, and Was killed by the cars coming together.</p> <p>Held, that no negligence was chargeable to the defendant;</p> <p>That, as the passenger train had gone, the defendant had no reason to apprehend that any person would attempt to cross the switch track;</p> <p>That, as the decedent had made no inquiry as to the whereabouts of his train, he was guilty of contributory negligence and assumed the risk of trying to find out for himself.</p>

<p>. Conversion—forcible asportation of goods ■ without claiming title or doing injury is not conversion, but trespass — owner cannpt recover full Value. ■ ■ ■. ‘ . /</p> <p>The superintendent of a religious shrine, who forcibly takes and removes the' goods of one operating a refreshment 'booth under a license from the landowner, opposite the entrance to the shrine, although a trespasser and liable to punitive damages, cannot be charged in an action for conversion with the full . value of the goods, when he made no claimof title and did not destroy the .goods or alter their nature, but merely transported' them beyond the boundaries of the shrine.</p> <p>Under such circumstances, when the owner, has full freedom to 'retake the- goods, "he cannot abandon them and recover the full value from the trespasser.</p>

<p>Appeal by' Joseph B. Mayer, as receiver of The Bank of- Staten Island, from an order of the - Supreme Court, made at. the Albany Special Term and entered in the office of the clerk of the county of A-lbariy on the 18th day of December, 1905, denying the appellant’s motion to substitute Montague -Lessler as his attorney in the place land stead of Harry S. Patten, and to require said Patten' to- surrender up to said Lessler all papers, etc., connected with the matters of the said receiver.- ■ '-</p>

Appeal by the defendant,. Eben Harmon, from a judgment-of the County Court of St. Lawrence county in- favor, of the'plaintiff, entered in the office of the clerk, of the. county of St. Lawrence on the 19th day of December, 1904, upon an order bearing date the 21st day of November, 1904, and.entered unsaid clerk’s■ office, reversing a judgment of a justice of the peace of the town ,of • Edwards, in said county, and also, from such order of reversal upon which the judgment…

<p>Appeal by the defendant, Ernest A. Douglass^from a judgment - of the Supreme Court in favor of the.plaintiff, entered in the-office of the clerk of the connty of -Franklin on- the 18th. day of September, 1905, upon the-verdict of a jury, and also from an order-entered in said clerk’s office on the 16th day of September, 1905,. denying, the defendant’s motion for a new trial made upon the minutes, and also= from an order bearing date the 16th day of September, 1905,. and entered in-said clerk’s office directing.a judgment for the plaintiff "pursuant to the. Verdict .of the jury.</p> <p>The action is-brought to recover upon an alleged verbal" agreement entered into between the plaintiff and. defendantwhereby the defendant-agreed that if the plaintiff would buy certain shares of the stock.of the American Consolidated Copper Company that the defendant would take, such shares back at any time, the plaintiff was dissatisfied therewith and refund to him the amount he .had paid therefor. It is alleged that the plaintiff in reliance upon such agreement purchased such stock, which afterwards turned out to he worthless;. that it was tendered back to the defendant and that he refused to take it and pay therefor.</p> <p>The evidence of the plaintiff showed that he purchased two installments of the stock, the first on June 20, 1902. With respect to that the plaintiff testified that the defendant said to him : “ I am so confident of the genuineness of this copper stock that if you will buy one thousand shares of this copper stock, if there ever comes a time when yon are dissatisfied with this stock I will take the stock off your hands and refund you the money.” The plaintiff further testified that he bought the 1,000 shares of the par value of $1,000 for forty cents on the dollar and paid $400 therefor when the certificates were delivered. With respect to the second sale, which was on February 25, 1903, the plaintiff testified that the defendant came to him again and said to him: “ ‘ I want you to buy more copper stock. My brother, who is one of the directors of this company, has been here I will not say whether he said he had been here, or he had heard from him and he has some more of that stock he is desirous of.selling; I am desirous that my intimate friends should be purchasers, and, therefore, I want you to have some more of this stock, and I will stand behind this stock just as I stood behind the other. If there ever comes a time when you are dissatisfied with this stock I will take it back and refund you your money.’ Upon that statement I bought the stock, five hundred shares for $300, and gave him my check.” The plaintiff testified upon cross examination that the defendant told him he was selling the stock for his brother, and that he knew previous to his first purchase that the defendant was selling the stock for his brother Walter. The principal office of the company was at Oolumbus, Ohio, and the certificates of stock were issued directly from there to the plaintiff. The plaintiff further testified: “ After I paid for my first stock I had to wait, I should say from four to six days, to get the certificate as I remember, I do riot know why I had to wait so long for it. * * * I supposed he sent to Ohio in both instances to have the certificates made out , « to me. Q. And that he did not have any stock here to sell ? A. He sent right to the company, as I" understood it. Q. Ton knew he was selling it for his brother and the company ? A. I supposed so.”</p> <p>The defendant never owned any of the stock sold to the plaintiff, but he received a commission of twenty-five per cent for selling. Plaintiff held the stock during a period of about two years, and. during that time he received six dividends, upon the first;lqt of Stock and .two dividend’s upon the second lot, amounting in all to eighty dollars. The defendant denied that he ever agreed" to take back the stock or to- refund the money'paid therefor, and testified that the only interest he had in the sale was the commissions he received therefor. The case was submitted to the jury, who found a verdict for the plaintiff for the full amount claimed, and from the judgment entered thereon the defendant has appealed.</p>

<p>Sale—when foreign corporation selling goods through agenté is not doing business in this State within section 15 of the General Corporation Law—when defense of said section not available to deféndant — bill of particulars cannot change action set out in complaint.</p> <p>I</p> <p>In an action by a foreign corporation for goods sold and delivered, in order to succeed upon the plea that the plaintiff was not authorized to do business in this State as required by section 15 of the General Corporation Law, the defendant must show that the plaintiff was doing business in this State, and that the contract sued upon was made here.</p> <p>A foreign corporation which procures orders in this State through traveling salesmen, subject to approval at the home office of the company, and delivers the goods f. o. b. in the foreign State, is not doing business in this State within the meaning of the statute.</p> <p>A bill of particulars of the goods sold which states that the items were sold to the defendant upon orders' obtained by traveling salesmen in this State, and were received by the defendant in this State, does not admit that the sales were made here so as to warrant a judgment for the défendant on the pleading,.</p> <p>A bill of particulars cannot change the cause of action stated in the complaint.</p>

<p>Sheriff may maintain action for conversion, against one who takes property under levy — sheriff’s successor may be substituted as party plaintiff---.such substitution not necessary, ' ,</p> <p>While there is no- statute requiring or authorizing a sheriff to bring action against one who unlawfully takes-from his. possession chattels levied up on under lawful process, he may maintain such .action under the common law. ,</p> <p>Such an action for conversion brought by a sheriff does not abate at his death, but by virtue of section 766 of the Code of Civil Procedure may be continued .by his successor in office. ' ;</p> <p>In any event -a consent by the defendant that the successor of such deceased sheriff he substituted as plaintiff precludes the defendant from thereafter asserting that the successor was not a proper .party. ,</p> <p>Such sheriff substituted 'as a party may continue the action in his own name, although- -his term of office has expired and his successor has been appointed."</p>

Appeal by the defendants, .The Tillage of Potsdam and others, from an order of the Supreme Court, made at the. Saratoga Special Term, and-entered in the office of the clerk of the county of St. Lawrence on the 23d day of December, 1905, denying the defendants’ motion -to reopen the' case and to give -fu'rthpr testimony.

Appeal by the defendant, Edward T. Johnston, from that part of a judgment of the County Court of Warren county, entered in the office .of the clerk of the county of Warren on the 11th day of November,' 1905, which affirms a judgment of the Court of Special Sessions of the village of Grlens Falls, rendered on the 3d day of March, 1905, convicting the defendant of the crime of petit larceny.

<p>Bills and notes — evidence—when question as to, whether new notes were given in payment of former notes is for jury—failure to show service of notice Qf dishonor on indorser.</p> <p>When the only evidence that checks and notes were given in payment of a past due note retained by the holder is the testimony of the makers and indorsers, a question of fact is presented, although the testimony is- not contradicted, for the witnesses are interested parties and on such evidence a direction of a verdict for the defendant is error. ,.</p> <p>When it is alleged in the answer of an indorser' of a promissory note that he; received no notice of dishonor, the burden is on the holder to show that due notice was given. Service of such notice is not shown by the mere testimony of the notary that not knowing the .address of the indorser he inclosed the notice of dishonor to a subsequent indorser with postage for forwarding the same to the prior indorser.</p>

Appeal.by the defendant, The Pennsylvania Railroad Company,, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk off the county-of Cattaraugus on ■the 15th day of August, 1905, Upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 25 th day of August, 1905, denying the defendant’s motion for a new trial made upon the minutes. _ -

Appeal by the defendants, Josephine J. 13. Wendel and others,, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the. clerk of the county of Hew York oh. the Rh day of February, 1906,. overruling preliminary motions'and- objections ,of the appellants,'and appointing,a .referee to hear and determine the issues presented by the petition and answers in this proceeding. . •

<p>Trial — preference — when plaintiff suing as executrix entitled-to preference although caption fails to show her representative capacity.</p> <p>A preference will not he-granted when the title of an action-alone shows the representative capacity of the party; hut when the pleading or affidavits establishes such representative capacity, the preference should not he denied because-of the mere omission of- the words “as executrix, etc.,” in the title.</p>

<p>Eminent domain'—condemnation of lands to lay street railroad.tracks -7-rule established for valuing property in determining whether consent of owners of onerhalf thereof has been obtained.</p> <p>In- considering the value of property under the State Constitution (Art. 3, §18) and section 91 of the Railroad Law-to determine whether' the. consent of the owners of one-half, in value of the property bounding upon a proposed street railway has been obtained, the value of each entire parcel of land with the buildings thereon as appearing upon the assessment roll “'completed last before the local authorities shall have given their assent ” is final and . conclusive.</p> <p>A parcel consisting of one entire tract extending back from the highway should not be divided in making such valuation.</p>

<p>Mechanic’s lien — recovery on quantum meruit for work on failure to prove contract.</p> <p>In an action to foreclose a mechanic’s lien for labor performed by a sub-contractor in plastering a schoolhouse, the court having found that no written contract existed, but that the plaintiff had performed certain work, the question of the amount and value of such work should be determined, and where the defendant’s figures as to the former taken with the testimony of plaintiff on cross-examination as to the latter show a balance due the plaintiff, a dismissal of the complaint is error and a new trial will be ordered.</p>

<p>Attorney and client — lien of defendant’s attorney for costs on dismissal of complaint — offset of judgment against such costs destroying lien not permissible—when attorney may appeal in client’s name;"</p> <p>The attorney for a defendant who recovers costs on the dismissal of 'the complaint has a lien thereon for his services, although no-counterclaim was set up in the answer. " -</p> <p>Hence, when such attorney has not been paid for his services,, it is improper to satisfy said judgment for costs by offsetting a prior judgment obtained by the plaintiff, as the attorney's lien is superior'to the plaintiff’s-right to offset.</p> <p>When there is no hostility between client and attorney- and the latter has taken no proceedings adverse to his client’s interest, the attorney may appeal in his clients name from an order offsetting such prior judgment which destroys his lien. '</p>

<p>Partnership—payment of capital — proof sufficient to establish oral contract of partnership from year to year—notice of dissolution by answer denying partnership — when former partners not liable to account for renewal of lease—when failure of partners to account does not continue partnership after notice of dissolution.</p> <p>When the amount that a partner has agreed to contribute to partnership capital has by mutual consent been deducted from his share of the profits, it is a waiver of any defense his copartners may have had arising from his failure to pay the money.</p> <p>An oral contract of partnership for the purpose of holding bicycle races in. certain years is established by the fact that the other partners furnished the plaintiff statements of the box office receipts for those years, and subsequently made statements and appointments in regard to an accounting.</p> <p>In order to effect a dissolution of an oral partnership at will there must be a mutual agreement to dissolve, or a partner must give notice of his election to terminate the partnership, or the election must be' manifested by unequivocal acts or circumstances brought to the knowledge of the other partners.</p> <p>The bringing of an action to dissolve such partnership does not necessarily constitute an election to end the partnership; but when the answers of the defend‘ants in such action deny the existence of the partnership, they constitute a notice that the same is dissolved from the time such answers are served.</p> <p>Hence, although the plaintiff may establish a right to an accounting up to that period, it is error to order an accounting beyond the period of the service of such answers.</p> <p>Although the "defendants subsequent to such answers have taken new leases of the building where the bicycle races' were held, they are not liable to account to the plaintiff for such leases as representing the good will of the business • when the same were never taken for a longer period than the duration of the annual race, and were renewed from year to year. '</p> <p>When the partnership has no capital carried over from year to year, the plaintiff, although entitled to an accounting for certain years as to which the partnership is established, is not entitled to share in the profits of years subsequent to said notice of dissolution by answer, on the theory that, the defendants by failing to account have embarked his. money in the enterprise.. /</p>

<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, Thomas S.-Doyle, from an interlocutory judgment, of the Supreme Court In favor of the defendant Joseph M. Delaney, entered in the office of the clerk of the county of New York on the 21st day of December, 1905, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the said defendant’s demurrer to the amended complaint.

Appeal by the plaintiff, Margarete Antes, as administratrix, etc., of Simon Antes, deceased, from so much of a judgment of the Supreme Court, entered in the office of the clerk of the county óf Mew York on the 19th day of April, 1905, as dismisses the complaint as to the defendants William H. Watkins and Joseph Watkins after a trial at the Mew York Trial Term.

<p>Appeal by The People of the State of Hew York from an order of the Supreme Court, made at the Kings County Special Term and entered’ in the office of the clerk of the county of Kings On the 15th day of January, 1906, sustaining a writ of habeas corpus theretofore issued in behalf of the relator, Abraham H. Hummel, and’ directing the discharge of the said relator from custody.’</p>

<p>Court of Claims—when award of damage for injury to crops by overflow of canal is insufficient — Appellate Division will not modify award of Court- of ■ Claims in absence of finding as to damage.</p> <p>When a -claimant against the State for damages caused to crops by the overflow of a State canal has proved damage to the extent of §900, the Court of Claims - has ño power to reduce the damage to §300. on‘the theory that'the injury was caused partly by heavy .rjiins, in the absence of evidence that any damage was in fact caused by rains. The mere fact that rain's .were heavy .at that period does not of itself prove that the claimant's crops were injured thereby.</p> <p>But the Appellate-Division in the absence of a finding by the Court of Claims as • to the amount of damage is without jurisdiction to make a new finding' as to damage in accordance with the evidence, and carl only grant a new trial when . the award is insufficient. • '</p> <p>The Appellate Division has only the. same power to affirm, reverse or modify a 'judgment of the: Court of Claims that it has in respect to judgments cf the Supreme Court.</p>

<p>Appeal by the claimant,, Charles Ostrander, from a judgment of the Court of Claims of the State of New York in favor of the claimant, entered in the office of the clerk of said court on the 15th day of January, 1906, on the ground of the insufficiency of the award.</p>

Appeal by the plaintiff, Merritt 0. Stanton, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Essex on the 5th day of October, 1905,' upon the decisión of the court, rendered after a trial before the court without a jury at the Essex Trial Term, dismissing the complaint upon the merits.

<p>Ceetiobabi issued out of the Supreme Court-and attested on the --day of October, 1903, directed to Nathan L. Miller, Comptroller of the State of New York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings had in relation to an assessment, against the relator fdr franchise taxes for the years 1899, 1900 and 1901, and for a license.fee.'</p>

<p> Certiorari—return conclusive—relator not satisfied must move for a further return. </p>

<p>Appeal by the plaintiff from a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 3d day of October, 1904, and also from an order, entered in the same office on the 39th day of September, 1904, denying the plaintiff’s motion for a new trial.—</p>

<p>Appeal from an order denying a motion to compel an attorney to pay over certain moneys.</p>

<p>Appeal from an order- of the Supreme C.onrt, entered- in the clerk’s office of the county of New York on the 18th day of January, 1906, as resettled'by an order bearing date the 1st day of February, 1906, and entered in, said clerk’s office.</p>

<p>Attorney and client — allowance by referee to attorneys for services in defending an alleged incompetent reduced as excessive.</p>

Appeal by the plaintiff from a judgment of tue Supreme Court, entered in the clerk’s office of the county of New York on the 29th day of June, 1905, dismissing plaintiff’s complaint upon the merits.

Appeal by the defendant from an order of the Supreme Court, entered in the clerk’s office of the county of New York on the 12th day of May, 1905, setting aside a verdict in favor of plaintiff on the ground of inadequacy of damages.

<p>Pleading—sufficiency of affidavit on attachment against non-resident for- breach of contract — proof of agent’s authority to sell put business — tender of purchase price and demand for delivery —affidavit upon information and belief as showing sources - of inforrhation and grounds of belief. " ,</p>

<p> Appeal —practicing dentistry without a license—failure of prosecution to show that alleged office of the accused was within the jurisdiction of'the trial court 'cannot be raised fro- the first time on appeal </p>

the defendants to vacate an ex parte order obtained by the plaintiff allowing the' plaintiff to serve an amended summons and a supplemental and amended complaint.

<p>'Negligence—passenger injured by collision of street cars—res ipsa loquitur — presumption of negligence — attending circumstances.</p>

<p>Negligence — infant struck by street car — verdict of freedom from contributory negligence founded on conjecture — contradictory evidence of plaintiff.</p>

<p>Appeal from an order denying a motion for a reargument.</p>

Appeals by the defendants, the Mercantile Trust Company and Others, from an order -'of the Supreme Court, enteredin the office of the clerk of Suffolk county on-the 33d day of January, 1906. •

<p>Negligence—pedestrian injured hy team, driven along the left side óf a highway — common-law- custom of driving on right-.— duty of driver to pedestrian..</p>

Appeal hy the defendant Theresa Schiller 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 38th day of June, 1904 - •

Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York in favor of the defendant, rendered on the 3d day of July, 1905, dismissing the complaint.