Volume 113 — New York Appellate Division Reports

Appeal by the relator,. Abbot Augustus Low, from a judgment of the Supreme Court in favor of the respondents, entered in the office of the clerk of the county of St. Lawrence on the 17th day of January, 1905, in a proceeding instituted by writ of certiorari under the provisions of the Tax Law to review the proceedings of the respondents in assessing real estate of the relator.'

Appeal by Eliza B. Kennedy and others, individually and as executors, etc., of David' Kennedy, deceased, from a decree of the Surrogate’s'Court of the county of Ulster, entered in said Surrogate’s Court on the 3d day of October, 1905. David Kennedy died upon the 5th day of August, 1901.

Appeal by the plaintiff, John Zeiser, from a judgment of the Supreme. Court in favor of the defendant, entered in the office of ' the clerk of the county, of i Albany on' the'29th day of November, - 1904, upon the dismissal of the complaint as' to the 'respondent by direction, of the' court after a trial - at the Albany Trial Term, the complaint having theretofore been _dismissed by an order, of the .court as to Jacob Cohn, one of the original defendants. ■ ■

Appeal by the defendant, Charles S. Hanna, from a judgment ®f the Supreme Court in favor of the' plaintiff, entered in the office of the clerk of the county of Washington on the 25th day of September, 1905, upon the verdict of a jury rendered by direction-of the court after a trial at the Washington Trial Term, and. also from an order entered in' said clerk’s office on the 25th day of September, 1905, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Frank Stümpf, from an order of the Surrogate’s Court -of the county of Saratoga, entered in said Surrogate’s Court or. the 22d day .of December., 1905, denying the defendant’s -motion to dismiss the above-untitled proceeding, .and also from an order entered in said Surrogate’s Court on the 23d day of January, -1906, resettling said first-mentioned order.</p>

Appeal by the defendant, George A. Sheffer, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Warren on the 23d day of October, 1905, upon the decision of the court rendered after a trial at the Warren Trial Term without a jury.

Reargument of an appeal ,by Howard Cozine from a decree .of the Surrogate’s Court of the county of Kings, entered' in said Surrogate’s Court on. the--16th day of May, 1904, judicially settling the account, of James J. Cozine, as administrator, etc., of Cornelius Cozine, deceased, except that, part thereof awarding costs to the appellant to be paid by the said James J. Cozine, individually;

Appeal by the defendant, Warren Wesley Catliu, from a judgment of the Municipal Court of the city of New York in favor of the plaintiff, rendered on the 6th day of May, 1905.

<p>Principal and agent — when architect entitled to commissions on procuring capitalists willing to finance hotel to be built on defendant’s land—pleading — when complaint'alleges due performance..</p> <p>An architect, who has been promised professional employment by a landowner in erecting a hotel on the consideration of his procuring capitalists willing to finance the scheme, is entitled to recover of the owner when he lias succeeded in bringing about an agreement for the erection of the hotel between the owner and capitalists willing and able to perform. After all the details of the plan have been agreed upon and the minds of the parties have met, the owner cannot defeat the architect’s right to commissions by refusing to sign a formal • agreement because of the unwillingness of the capitalists to accede to additional demands.</p> <p>Although the complaint alleges a right to commissions dependent upon an agreement to erect a hotel upon the “land then owned by” the defendant, it does not fail to allege performance because the proposed hotel was to be built partly “ upon land of other parties ” when such other lands became necessary to meet the requirements of all concerned.</p>

<p>Appeal by the relator, Samuel J. Sampson, from an order of the Supreme Court, made at the -Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 27th day of January, 1906, denying the relator’s motion for an absolute writ of prohibition and setting aside an alternative, writ of prohibition theretofore issued herein.</p>

Appeal by the defendant, The ¡North American Brewing Company, 'from a judgment of the Municipal Court of the city óf ¡New York,- borough pf Brooklyn, in favor of the plaintiffs, rendered on the 27th day of September, 1905.

Appeal by the defendant, the Hyde & Behman Amusement Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the -clerk of the county of Kings on the 21st day of June, 1905, upon the verdict of a jury, and also from an Order entered in said clerk’s office on the 10th day of July, 1905, denying the defendant’s.motion for a new trial made upon the minutes.

Appeal by the plaintiff, Frank Ramstedt, from a judgment of the Municipal Court of the city of New York, borough of The Bronx, in favor of the defendants, rendered on the 16th day of March, 1905.

<p>Negligence—when discretion of trial judge in setting aside verdict will not’bedisturbed — character of plaintiff as affecting credibility may" , be: considered on motion to set aside verdict.</p> <p>When the trial court in its discretion sets aside a verdict for the plaintiff as ■ against the.weight of evidence, theappellate court will not reverse the decision unless injustice has clearly been done the defeated party, or the discretion has been abused.</p> <p>When the testimony of a plaintiff suing for damage for; injuries received by the , starting of a surface Car while she was attempting to board the same is- uncorroborated, and she is contradicted by the conductor of the car, and the: probabilities are with the defendant, the appellate court will not revérse the decision of the.trial court in setting aside a verdict for the plaintiff.</p> <p>The trial judge, on a motion to set aside such, verdict, may consider evidence, of , the immoral character of the plaintiff as affecting her credibility,</p> <p>Patterson,'J., dissented.</p>

'. Appeal-by. the plaintiff, The City of .He.w York, from an order of the. Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county'of New York on the 17th day of .March, 1906.

<p>Patents — State courts have ño jurisdiction of action for infringement— ■ complaint alleging manufacture by unlicensed corporation and asking an ■ accounting states, no cause of action — action for royalties must be : at law.. .</p> <p>If-an. unlicensed corporation has manufactured and sold a patented article in ■violation of the rights of the patentee, the remedy of the latter is to enjoin it . and to recover damages for an infringement, of the patent, of which the State courts have no jurisdiction.</p> <p>Hence, a complaint which in substance alleges that the patentee granted a license ' -to d," partnership to make and sell the patented article, and that .the licensee ■gave the benefit of the contract to a corporation, and asks that both the part- „ ■ nership .and corporation account jointly for whatever sum may be found due, does not state a cause of action against the corporation.</p> <p>Moreover, such complaint is bad as against the partnership, for the plaintiff has an'adequate remedy at law for the breach of the contract to pay royalties, '. The mere fact that an incidental accounting may be necessary does not alone . give.a court of equity jurisdiction. There must in addition be some trust or ■ fiduciary relation between the parties..</p> <p>. If such complaint be treated as stating an action at law, it is ‘still bad in the-absence bf an allegation that the corporation manufactured or sold the patented - ’articles upon which royalties were due in excess of the quantity for which royalties were actually paid.</p>

<p>Pleading — demurrer — defect of parties.</p> <p>Oh demurrer for .defect of parties, all defects of parties must be - pointed out. When a demurrer to a complaint upon the ground of a defect in parties has been sustained, and the plaintiff has been ' allowed to serve a supplemental summons and ’ amended complaint on terms, the amended complaint should not thereafter be dismissed on the ground that a party was not sued individually as well as executor, which defect of parties appeared' upon the face of the first complaint, but was not pointed out on the first demurrer, as required by section 488 of the Code of Civil Procedure. .</p>

<p>Appeal by the plaintiff, Lloyd Gr. McCrum, from an order of the Supreme Court, made’at the blew York Special Term and entered in the office of the clerk of the county of blew York on the 26tli day of March, -1906, granting a motion for the cancellation of- a Us pendens.. " .</p>

Appeal by Edward W. Fox, the plaintiff’s attorney, from a,n 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 2d day of April, 1906, granting the respondents’ motion for the discontinuance of the above-entitled action, without costs to any party as against the others.

<p>Tort — cohiplaiñt alleging breach of contract to guard plaintiff’s insane wife whereby she committed suicide states action in tort —> such action to recover damages for death does not lie at common law or under the statute.</p> <p>A'complaint alleging a- special' contract by a hospital corporation'to watch over - .the plaintiff’s insane wife, and that the defendant made a breach of the contract by negligently failing' to keep such watch, whereby the wife threw her /self out of the window and was killed, states an action ex delicto and not eX contractu. Although a contract is involved the action is in tort.</p> <p>As the husband’s action, if any, arises out of a domestic relation; and as the wrong resulted in death, the action does not' survive under the. common law, and the complaint- states no .cause of action. - ,</p> <p>Neither does such action lie under the statute (bode Civ. Proc. § 1908), which is the sole authority "for a recovery for a wrong causing death.</p>

■ ■ Appeal by the plaintiff,, the'Citizens’ Central National Bank 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 New York on the 14th day of November, 1905, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s.office on the 10th day of November^ 1905, denying the plaintiff’s motion for. a new…

Appeal by the defendant, Isaac Heineman, 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 29th day of November, 1905, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the plaintiff’s demurrer to two separate defenses set up in the amended answer.

<p>Municipal corporation — condemnation of dock property in city of Mew . York — when rights of all owners should be determined — former adjudication that owner has no fee is not inconsistent with claim to an easement — assessment óf damage for fee as not subject to easement will not be confirmed when question of validity of easement not determined wharfage — right of access;</p> <p>When in condemnation proceedings by .the yity of New York to acquire for , municipal purposes lands under water and wharfage rights and easements appurtenant thereto, the order appointing. commissioners requires them to assess the loss and damage to the respective owners and persons respectively entitled to wharfage rights, easements or privileges connected with the property" proposed to be taken, it is error to refuse to pass upon the validity of a claim to ownership of easements and wharfage rights asserted by a corporation, as the determination of such claim is one of the duties of the commissioners.</p> <p>The fact.that in a former action the claimant was adjudged not to own a fee in the lands in question is "no ground for refusing to determine whether it owned easements, or other incorporeal rights for the taking of which it .is entitled to. compensation. .</p> <p>When such commissioners have assessed the damage of .owners of the fee at tbs full value of the fee as if; not servient'to easements claimed by other parties, - the court will not confirm such assessment, because, if the lands are subject to easements owned by other parties, the damage awarded is more than tile municipality should pay. •</p> <p>A ¿rant of right, of wharfage- carries with it as an appurtenance the right of access to the wharf over adjacent lands of the grantor under water.</p>

<p>Complaint—clerical error alleging injury to plaintiff instead of to plain- , tiff’s intestate — demurrer overruled — defect amendable as of course.</p> <p>A complaint which taken as a whole^sets- Out an injury to the .plaintiffs intestate by the negligence of the defendant, but by reason of a clerical error states that the defendant's wagon ran into “said plaintiff” instead of the plaintiffs intestate, whereby “ the intestate died,” is not subject to demurrer for a .failure to stat.e a cause of action.</p> <p>A demurrer based on such clerical error is frivolous, and the defect is amendable at any time upon mere suggestion to the court.</p>

Appeal by the defendant, the Thomas W. Evans Museum and Institute Society, 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 28tli day of February, 1906, denying said defendant’s motion for leave to amend its answer herein.

<p>Principal and agent — evidence showing authority of agent to sell stock in principal’s name.</p> <p>In an action by brokers to recover from a principal for losses incurred on orders to sell cotton given by an agent it was shówn that the defendant was engaged in the business of buying and selling cotton; that the agent who gave the order in question had been employed by the defendant for some years; that he was accustomed during the absence or illness of his principal to execute such orders in the latter’s name-; that he had credited a profit received from a previous transaction with the plaintiff carried on by him in behalf of the defendant; that the defendant on learning of the losses had only discharged the agent for one day and then re-employed him, and- did not expressly repudiate his acts.</p> <p>Mid, that the facts established a prima facie authority of the agent t.o deal in the defendant’s name, and that a dismissal of the complaint was error.</p>

<p>Appeal by the plaintiffs, George Orr and another; from an order of the Appellate Term, entered in the office of the clerk of the county of New York on the 30th day of June, 1905, affirming a judgment of the City Court of the city of New York in favor of the- defendant, entered in the office of the clerk of said court <jn the 9th day of January, 1905, upon the verdict of a jury dismissing the plaintiffs’ complaint.</p>

<p>Pleading — plaintiff suing to recover money paid for the return of stolen negotiable bonds must allege that defendant was not a bona fide holder.</p> <p>A plaintiff, suing to recover money voluntarily paid to the transferee of stolen negotiable bonds in order to secure the return*thereof, must allege and prove that the defendants were not bona fide holders and were not entitled to the money that they re'ceived for the return of the bonds.</p> <p>A complaint which merely alleges that the money was paid by the plaintiff “believing ” that the defendant “ believed ” the thief to be the rightful owner of the bonds, etc., states no cause of action.</p>

Appeal by the plaintiff, Elizabeth Charters, as administratrix, etc., of John Charters, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 29th day of November, 1905, • upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case ,upon a trial at the New York Trial Term.

<p>Writ of prohibition — when writ will not issue to correct errors of law — writ ,to restrain magistrate from issuing subpoena refused —• when return conclusive — when information sufficient.</p> <p>The extraordinary writ of prohibition which issues, to stay proceedings in excess of jurisdiction may not be invoked to prevent an anticipated injury or injustice on the theory that the court may erroneously decide that an invalid subpoena is valid or that an information is sufficient to give jurisdiction when it is not sufficient. ■'</p> <p>Some nepessity must be shgwn for the issuance of this high writ. 'When" jurisdiction exists it will not issue to prevent errors of law or procedure. ' It will only issue when there i? no. other adequate remedy at law, in equity, or by . appeal. -</p> <p>The fact that the return of a justice of the Court of General Sessions to a petition for a writ of prohibition does not set out the information upon which he assumed to act., and to issue a subpoena, does hd¡t warrant a conclusion that no proper information was made, for it is the duty of the magistrate to keep an, information secret. Such return, when not denied on the application for a writ .absolute, is conclusive, and if the petitioner desires the information returned he should move for a further return.</p> <p>The information upon’which a magistrate is authorized, to act need not be in the form of a deposition.</p>

<p>Appeal by the plaintiff, William J. Fischel, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of Reiy York on the 22d day of May, 1905, setting aside the verdict of a jury theretofore rendered in favor of the plaintiff and granting a iiew trial of the action.</p>

<p>Appeal by the plaintiff, Frederick W. Menzies, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 18th day of July, 1905, upon the decision of the court, rendered after a trial at the New York Trial Term, the case having been takqn from the jury, dismissing the complaint upon the merits.</p>

Appeal by the defendant, Orlando F. Thomas, from so much of 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 20th day of June, 1905, upon the decision of the court? rendered after a trial at the New York Special Term, as provides that the defendant’s demurrer to the complaint be sustained with only twenty dollars costs instead of full statutory costs, and permits the plaintiff to…

Motion by the plaintiff, Tarleton H. Bean, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the dismissal of the complaint upon the pleadings and plaintiff’s opening at the New York Trial Term in December, 1905.

Appeal by the defendant, the Schenectady 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 Schenectady on the 13th day of April, 1905, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 9th day of May, 1905, denying the defendant’s motion for .a new trial'made Upon the minutes.

<p>Attorneys — unjust aspersions on court by attorney in personal letter — duty of attorney believing judge guilty of misconduct — attorney reprimanded.</p> <p>An attorney who, after being defeated in a cause, writes a personal letter to the trial justice complaining of his conduct and reflecting upon his integrity as a justice, is guilty of misconduct and will be disciplined by the court.</p> <p>It is the duty of an attorney having cause to charge a justice of’ the court with misconduct to prefer formal charges, on the hearing of which the justice may be heard in his own defense. The attorney is not justified in writing a personal letter to the justice or in making informal aspersions calculated to bring the court into disrepute.</p> <p>Though such conduct is ground for suspension of disbarment, when the attorney asserts that such letter was written on impulse, without intention to give publicity to his - alleged grievance; the court will restrict the punishment tó a public reprimand.</p> <p>(Laughlin, J.): An apology in open court should be required.</p>

Appeal by Charles M. Preston, as receiver of the New York Building-Loan Banking 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 26th day of October, 1905, overruling exceptions filed--to the report.of a referee,, to whom was referred all claims. presented against the. corporation in this action disputed by the receiver thereon, and which further ordered that the claimant,…

<p>. Appeal by the defendant,-Thomas 0. Smith, from á judgment of the Court of General Sessions of the. Peape in and for. the city and county of Mew York, entered in the office of the clerk of said court on the 17th day of June, 1904, convicting the defendant of murder in the second degree,, and also from an order denying the defendant’s motion for a new trial.</p>

Appeal by the defendant, the New York City 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 New York on the 1st day of .December, 1904, upon the verdict of a jury for $3,000j and also from an order entered in said clerk’s office on the 13th day of December, 1904, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by Edward F. Cunningham 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 21st day of December, 1905, revoking and canceling a liquor tax certificate heretofore issued-to the said appellant. Pending the appeal Sibbel D. Bullard, the original petitioner, died, and the present respondents were duly substituted.

Appeal by the defendants, William McAdoo, individually and as police commissioner of the city of Mew York, and another, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 29th day of July, 1905, enjoining each of said defendants, both' individually and in Ms official capacity as a member of the police department of the city of Mew York, and the officers under the command of each of…

Appeal by the defendants, William McAdoo, individually and as police commissioner of the city of' New York, and others, from an order of the .Supreme Court, made at the Rings Comity Special Term and entered in the office of the clerk of the county of Kings on the 2d day of August, Y905, enjoining each of the defendants, both individually and in' his official capacity as a member of the police force of the city of New York, and the dtficers under the command of each of them,…

<p>Bankruptcy — pleading—complaint to set aside fraudulent transfer by bankrupt dismissed ‘for failure of proof—when facts show title in trustee in bankruptcy complaint should be drawn under section 70 of the Bankruptcy Act.</p> <p>When a trustee in bankruptcy frames his complaint under section 60 of the Bankruptcy Act and seeks to set aside an alleged transfer of property by the bankrupt as in fraud of creditors, and as made to give an unlawful preference, but on trial gives proof that the bankrupt did not willingly part with the property, but that it was obtained by the defendant through fraud, and does not ask to amend his complaint, the complaint should be dismissed for failure of proof.</p> <p>Under the facts proved the title to the property was in the trustee and should have been enforced by an action of replevin or for conversion, and the complaint should have been framed under section 70 of the Bankruptcy Act.</p> <p>Ingraham, J,, dissented, with opinion.</p>

Appeal by the defendant, The Northwestern Mutual Life 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 New York on the 23d day of October, 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 23d day of October, 1905, denying the defendant’s motion for a new trial made upon the minutes, with notice of an…

Appeal by the defendant, Ardsley Hall 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 5th day of October, 1905, upon the verdict of a- jury rendered by direction of the court after a trial at the Mew York Trial Term, and also from an Order entered in said clerk’s office on the 4th day of. October, 1905, denying the defendant’s motion.for a new trial made upon the minutes.

Appeal.by Lora 0. Schroeder, individually and as administratrix, etc., of Edwin A. Schroeder, deceased, from certain portions of a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 3d day of July, 1905.-

<p>Appeal by Lora 0. Sohroeder, individually .and as administratrix, etc., of Edwin A. Sohroeder, deceased, from an order of the Surrogate’s Court of the county of Mew York, entered in said Surrogate’s Court on the 28th day of September, 1905, denying a'motion made by the said administratrix to open a decree of accounting for the purpose of having the referee in the proceedings make findings of fact and conclusions of law.</p>

<p>Appeal by the. plaintiff, Gustave E. Walter, from an interlocutory judgment of the Supreme Court in favor of certain of the defendants, entered in-the office of the-clerk of the county of New York on the 14th day of December, 1905, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the said defendants’ demurrer to the amended complaint.</p>

Appeal by the defendant, Katharina' Gundberg, individually and and as administratrix with the will annexed of Dora Parks, 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 New York on the 30th day of January, 1906, upon the decision of the court rendered after a trial at the New York Special' Term overruling the defendant’s demurrer to the .plaintiff’s complaint.

Appeal by the petitioner, Katherine B. Wetmore, from so much of an order of the Supreme Court, .made at the Mew York Special Term and entered in the office of the clerk of the county of New York on the 22d day of May, 1905, .as appoints a referee herein and directs him to take certain proofs.

<p>Appeal by the plaintiff, Joseph Glazer, from an order of the Appellate Term, entered in the office of the clerk of the county of New York on the 24th day of November, 1905, reversing a judgment of the City Court of the city of New York in favor of the plaintiff, entered in the office of the clerk of said court on the. 18th day of May, 1905, and directing a new trial, the plaintiff having stipulated that if the said order of the Appellate Term should be affirmed judgment absolute might be rendered against him.</p>

<p>Appeal by the defendants, Bebeoca Mayer and others, from a judgment of the Supreme Court in favor of the plaintiff, entered •in the office of the clerk of the county of. New York on the 3d day of July, 1905, pursuant to an order made at.-the New York Special Term and entered in ■ said clerk’s office on the 29th day of J une, 1905, overruling exceptions to the report of a referee and confirming the said report, and also from the said order upon which the-, judgment appealed from was entered, witli notice of an intention to. bring up for review upon such appeal certain intermediate-orders referring this action and appointing substituted referees, which oi'derk were entered in said clerk’s office, and.are dated respectively the 10th day of April, 1883, the 7th day of May, 1887-, the 51st day ■ of May, 1899, and -the. 9th day of November,-1903.</p>

<p>Partnership • accounting — when accommodation note is chargeable against former partnership and not against an individual partner — when costs of litigation chargeable against firm — allowance of interest on balances due partners of , old firm.</p> <p>When a former partnership had been accustomed to exchange accommodation notes with another firm and the liability on such notes has been charged to the partnership, on the formation of a new firm taking over the business of the old, sueh notes are properly treated as a partnership debt although issued at the instance of one partner against the objection of another.</p> <p>Legal expenses incurred by the old firm in a litigation continued by the new firm which took over the assets should be charged proportionately to the partners of the old firm.</p> <p>When the new firm takes over all the assets of the old .firm and the sum due a ■ member of the old firm who then retires is used by the new firm for its own benefit, the new firm is chargeable with interest thereon.</p>

<p>Principal and.' agent — estate of attorney in fact liable for moneys falsely represented to have been invested — practice — proposed findings and conclusions must be filed before case is submitted for decision. ...</p> <p>When an attorney in fact' authorized by his principal to- invest moneys in securities has reported certain fictitious'investments in mortgages and has continued until his death to pay what he represented to be income therefrom, his estate. is liable for.the moneys thus admitted to have been received.</p> <p>To entitle a party to require the court to pass upon proposed findings of fact and conclusions of law he must submit them before the case is finally submitted for decision, Unless the time is extended by consent. A case is “ finally" submitted for decision ” when the testimony is finished and the arguments . concluded. A party cannot wait until the court has announced its decision before submitting proposed findings and conclusions.</p>

<p>Appeal by the plaintiff, Arthur E. Dewier, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 8th day of March, 1905, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 3d day of March, 1905, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Frank E. McGorie, 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 1st day of March, 1906.

Aureal by the defendants, William E. Lovdal and others, composing the firm of Lovdal Brothers, 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 17th day of May, 1905, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 14th day of June, 1905,-denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the plaintiff,- Grace Hart, froman interlocutory judgment of the Shpreme Court in favor of the defendant, entered in the office of the clerk of the coiinty of New York on the 3d day of January, 1906, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the defendant’s demurrer to the plaintiff’s amended complaint.

Appeal by the defendants, Louis H- Roberts 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 Heiv York on the 8th day of May, 1905, upon the report of a referee in a copartnership accounting.

Appeal by the plaintiff, Frederick Walter, from a judgment of the Supreme Court in favor of. the defendants, entered in the office of the clerk of the county of New York on the 25th- day of November, 1905, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits.

Appeal by the defendant, Wendell P. Rice, from ah order o.f 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 12tli day of April, 19Ó6, denying the said defendant’s .motion for a bill of particulars.

<p>Seal property — when guardian may authorize attorney to satisfy mortgage .owned by ward — when title to such property marketable-— right of mortgagor to pay one authorized to receive payment — presumption of payment after twenty years — when Statute of Limitations presumed to have run — effect of failure of guardian to account.</p> <p>The guardian' of an infant owning an overdue mortgage'‘on real éstate may appoint an attorney to collect the sum due and authorize him to ¿satisfy the mortgage when paid. . -</p> <p>Hence, when such attorney has recorded his power to act and has also satisfied the mortgage the real estate is free of the lien, and one who refuses to carry out- a . contract of purchase on the ground that the property was incumbered is not •entitled to recover a deposit paid.</p> <p>Moreover, the lien is extinguished because the mortgagor has a right to pay a past-due mortgage to any one authorized to receive payment, and on payment is entitled to a satisfaction of the mortgage, and,is under no obligation to see that a proper application of the money is made.</p> <p>When a mortgage became due more than twenty years before the time title to the property is to be transferred, the presumption is that the mortgage is paid.</p> <p>Moreover, the debt being more than twenty years past due, an action on the bond or for foreclosure of the mortgage could not be maintained (Code Civ. Proc. §381), unless within that-time there had been a payment of principal or interest, and the burden is on one who refuses title to show such payment.</p> <p>The title to' such property is not affected by the fact that the guardian of the infant never formally accounted, as he may account to the ward out of court when the ward arrives at the age of twenty-one years, and if honestly and fairly made, the 'ward’s release is as effective as a decree of court.</p>

Appeal by the defendants, Adele Gueutal and others, from an interlocutory 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 14th day of December,. 1905, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the said defendants’ demurrer.

Motion by the relator, Louis C. Connolly, to strike from the noiienjiraeratcd calendar an appeal by the defendant from an order of the Supreme Court, made at the New York Special Term and mtered in the office of the clerk of the county of New York on the itli day of February, 1906, granting a peremptory writ of mandamus.

-Appeal by the plaintiff,.Emmett Armstrong, from an ordér of the Supreme Court, made at-the Saratoga Special Term and entered in the office of the clerk of the county of Clinton on the 26 th day of February, 1906, denying the plaintiff’s motion for leave to serve an amended and supplemental summons and complaint, bringing in additional parties as defendants.

Appeal by the plaintiff, the American Fruit Product Company, from a judgment of the Supreme Court in favor óf the. defendant, entered in the office of the clerk of the county of Albany on the 18th day of July, 1905, upon the report of a referee dismissing the complaint, and also from an order entered in said clerk’s office on the 18th day of July, 1905, granting the defendant an extra allowance. The action is brought for damages for an alleged breach of guaranty.

Appeal by the plaintiff, Lawrence W. Trowbridge, from an order of the Supreme Court, made at the Ulster Special Term and entered in. the office, of the clerk of the county of Rensselaer on the 30th day of March, 1906, bringing in the respondent, Della Galusha, as a party defendant, and giving her leave to answer.

<p>Motion to disbar attorney.</p>

' Appeal by the relator, George W. Perkins, from an. order of the Supreme Court, made, at the New York Special Term and entered in the office of the clerk of -the 'eounty of 'New York on the 19th day of April, 1906, dismissing a writ of habeas corpus.

Appeal by the defendant, George B. Wade, doing business under the firm name and style of George B. Wade & 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 26th day of March, 1906. ■

' . » / Appeal by the defendant, John Murphy, from a judgment of tlie -Court of General Sessions of the Peace in and for the city and county of Mew York in favor of the plaintiff, rendered on the 31st day Of March, 1905, convicting the defendant of the crime of robbery in the first degree, and also from orders entered on the 31st day of March, 1905, respectively denying the, defendant’s motions for a new trial and in arrest of judgment.

Appeal by the plaintiff, The People of the State of New York,. from an order of the Supreme Court, made at the Broome Trial Term and entered in. the office of the clerk of the county of Broome on the 20th day of March, 1906, dismissing an indictment against the defendants. 1

Appeal by the defendant, The United Engineering and Con-, tracting Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 19th day' of April, 1905, upon the verdict of a jury for $2,000, and also from ah order entered in said clerk’s office on the 22d day of April, 1905, denying, the defendant’s motion for a new-trial made upon the minutes.

Appeal by Richard J. Evans from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 10th day of July, 1905, admitting to probate a certain paper propounded as the last will and testament of Anna Evans, deceased.

<p>Bills and notes — note given by teller of bank to secure loan made without consent of directors — note not invalid by statute—bank may recover thereon against maker.</p> <p>Subdivision 4 of section 35 of chapter 689 of the Laws of 1893, added by chapter 939 of the Laws of 1895, which prohibits officers, clerks, etc., of banks from borrowing money from the bank with which they are officially connected, without the consent of a majority of the directors, and provides a forfeiture to the State for a violation thereof, imposes no other penalty on such a loan than that expressly stated.</p> <p>Hence, a promissory note given by the teller of a bank for a loan by the bank, made without the consent of the directors, is enforcible by the bank against the maker and indorser.</p>

' , Appeal by the plaintiff, the Metropolitan Milk and Cream Company, from so much of an interlocutory judgment of the Supreme Court in part in favor of the plaintiff, entered in the office of the clerk of the county of New'York on the 28th day of February, 1906, upon the decision of the court rendered after a trial at the New York Special. Term, as overrules the plaintiff’s demurrer to one of the separate defenses' contained in the defendants’ answer.

<p>Appeal by the plaintiff, the South Bay Company; from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 8th day of January, 1906, setting aside the verdict of a jury in favor of the plaintiff rendered by direction of the court after a trial at the New York Trial Term.</p>

Appeal by Charles P. Cooley and others, as executors, 'etc., of Francis B. Cooley, deceased, and others, from a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on tlie 8th day of August, 1905.

Appeal by the plaintiff, Otto 0. Schrader, 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'9th day of April, 1906, as denies the plaintiff’s motion to correct the judgment roll theretofore filed in the action, by strikirig therefrom the affidavits and notice of motion for a reference. -

<p>Appeal by the defendant, William H. Smith,'from' a judgment of the Court of General Sessions of the Peace in and for the county of blew York in favor of the plaintiff, rendered on the 13th day of March, 1905, convicting the defendant of assault in the second degree as a second offense, and ..also from two orders respectively denying the defendant’s motions for a new trial and in arrest .of judgment.</p>

Appeal by the defendants, Charles Sundstrom. and another, from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Broomé on the 31st day of January, 1906, denying the defendants’ motion for a r.etaxation of costs-. ,

Appeal by the defendant, Jo'seph,Ramsey, from that part of an order of the Supreme Court, made at the. Saratoga Special Term and entered in the office of the clerk of the county of Warren on the 13th day of March, 1906, imposing upon the said defendant the payment of costs as a condition, upon the granting of his motion to vacate' a judgment taken against him by default.

<p>Municipal corporation—Labor Law — salary of janitor of public school of Brooklyn not controlled thereby—local authorities have exclusive power to fix such salary.</p> <p>The position of janitor in a public school in the borough of Brooklyn is not within section 3 of chapter 415 of the Laws of 1897, as amended, which provides that laborers on public works shall be paid the prevailing rate of wages paid to laborers not engaged upon public works. Such janitor cannot recover wages in excess of .those assigned him by the local authorities on the theory . that other janitors are paid higher wages. «</p> <p>As such janitor.is a subordinate specifically recognized by the city charter, and as the local authorities have exclusive statutory power to regulate his salary, he cannot avail himself of the provisions of the Labor Law."</p>

Appeal by the defendant, Frank Matone, from an order of the Supreme - Court,' made at the Kings County Special Term and -entered in the office of the'clerk óf the county of Kings on the 6th day of December, 1905, denying the said, defendant’s motion to-can cel a lis pendens herein, and also from an order entered in- said i . clerk’s office on the. 29th day. of December, 1905, denying the appellant’s motion for a reargument of said motion to cancel the Ms pendens and a…

Appeal by the defendant, Israel H. Meyers, from a judgment of conviction of the County Court of the county of Nassau, rendered on the 22d day of July,-1905, upon the verdict of a jury.

Appeal by the plaintiff, Camille Weidenfeld, 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 Nassau on the 20th day of June, 19051

Appeal by the plaintiff,; Charles. W. Lyndej from a judgment of , the Supreme Court in favor of the defendants, entered in the office ' of the clerk of the county of Suffolk on the 7th day of September, 1905, upon, the decision of the court, rendered after a trial at the. Kings County Special Term,'dismissing the complaint upon the merits.' .

<p>Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment 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 1st day of June, 1905.</p>

Appeal by the defendants, Grove D. Curtis and another, copartners in business under the firm name of Curtis & Blaisdell, from a judgment of the Supreme Court in favor of the plaintiff, entered in the 'office of 'the clerk óf the 'county of Kings on the 5th day of May-,, 1905, upon the verdict of a jury for $3,200, and also from an order entered in said clerk’s office' on the 4th day of May, 1905, denying .the defendants’. motion for a new trial made upon the minute's. . -

Appeal by the- plain,tiff, Bertha Levy,, from an- order of the Supreme Court, made at the Kings, County Special Term, béaring . date the 3d -day of March, 19G6, and entered in the office of the clerk of the county of Kings,- vacating a temporary injunction . theretofore, granted in- th.e action restraining the defendants from entering the premises of the plaintiff without a warrant or other legal process.

Appeal by the defendant, Thomas Moran, from an order of the County Court of Orange county, entered in the office of the clerk of the county of Orange on the 16th day of January, 1906.

Appeal by the defendant, Michael Walsh, from a judgment of the County Court of Westchester county, entered in the office of the cleric of the county of Westchester on the 20th day of January, 1905, upon, the verdict of a .jury; also from an order entered in said clerk’s office on the 17th day of January, 1905, granting the plaintiff an extra allowance, and also from an order entered in said clerk’s office on the 4th day of March, 1905, denying the defendant’s motion for a…

Appeal by the. defendant, The Clonbrock Steam Boiler 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 -6th day .» of,March, .1905, upon the verdict of a jury for $J,500, and also, from an order entered in- said clerk’s office on the 8th day of March,. 1905, ‘ denying the defendant’s motion for a new trial made upon tile minutes.

<p>Appeal by the defendant, Levi C. Weir, as president of the Adatns Express Company, from a judgment of the Supreme Court in-favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 27th day off June, 1905, upon the verdict. - of a jury, and &lso from an order entered in said clerk’s, office on the •12th day of June, 1905, denying the defendant’s motion for a new trial-made upon, the minutes.</p>

<p>Appeal by the defendant, the Tarrytown, White Plains and Mamaroneek Railroad Company, 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 of Westchester on the Í6tli day of May, 1905, upon the verdict of a jury for $1,375, and also from an. order entered in said clerk’s office on the 1st day of June, 1905, denying the defendant’s .motion for a. new trial made upon the minutes.</p>

<p>Negligence — injury during panic on car caused by igniting of passenger’s dress by-another passenger — direction of verdict for'defendant sustained — failure to anticipate that passenger would smoke, on front seat of car in violation of rules not proximate cause of injury.</p> <p>The plaintiff was injured during, a panic caused by the igniting of a woman’s dress by a match struck hy a passenger who was attempting to light his cigar ~ on the front seat of a surface car in violation of the" rules of the company.</p> <p>■ Held, that as the cause of the panic was admitted, and there was no proof of any negligent act-hy the servants of the defendant after' the discovery of the fire, a direction of a verdict for the defendant was proper;</p> <p>That the plaintiff could,' not recover on the theory that the defendant had not enforced its rule against smoking onUie front seats, "because it, had no reason , to anticipate that the rule was about to he broken, and because the infringement of the rule was not. the proximate cause of the accident;.</p> <p>That when, the facts are admittejl, the. question' of proximate cause is- one ‘ ‘of law. ' ' ' ,</p>

Appeal by the plaintiff, Fannie Froomkin, an infant, by Jacob Aranow, her guardian ad 'litem, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the ,12th day of April, 1905j upon the dismissal of the complaint by direction of the court' after a trial at the Kings County Trial Term.

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 22fi day of December, 1905, upon the decision of the court rendered after a trial at .the Kings County. Special Term. Action to enforce an attorney’s lien after a settlement made by the defendant.

<p>Negligence—when landlord liable for injuries received by tenant through fall of pole holding clothes line — evidence — prior fall of another pole admissible to show notice — rule stated for contradicting a witness.</p> <p>A landlord is liable for injuries received by a tenant through the fall of a pole supporting a clothes line due to its' rotten condition when there has been notice of such condition or circumstances equivalent to notice.</p> <p>Evidence that a similar pole set at the same time had previously fallen is admissible to charge the landlord with such notice.</p> <p>To lay the foundation for contradiction, it is necessary to ask the witness specifically whether he has made such statements, and the usual and most accurate mode of examining tlie contradicting witness is to ask the precise question put to the principal witness. ■ .></p> <p>•Exclusion • of contradictory testimony sustained because of informality of . question.</p>

<p>Conversion of securities — plaintiff must show right to immediate possession at time of conversion — evidence — error in excluding evidence that securities were pledged with third person with plaintiff’s consent.'</p> <p>Conversion is, so to speak, based not upon eepit but deiinet, and á plaintiff in , order to recover is bound to show an existing right to immediate possession at the time of the alleged conversion.</p> <p>Hence, when in such an action to recover the value of securities pledged with the defendant, the latter answers that the parties were engaged in a joint venture, and that the securities had been pledged with the consent of the plaintiff to a third person, it is error to exclude evidence of such joint venture showing that the securities were still pledged with the third person- and that the debt to him was still undischarged.</p> <p>Such defense is admissible under a general denial.</p> <p>A promise by the defendant to return the securities if the plaintiff paid a sum due is not inconsistent with such defense, for the action is not founded upon the contract.</p>

Appeal by the defendant, the Gotham Rubber Company, á corporation, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the plaintiff, rendered on the 2d day of August, 1905.

Appeal by the plaintiff j The City of New York, from a judgment of the Municipal Court of the city of New York in favor of the defendant, rendered on the 5th day of' September, 1905, dismissing the complaint.

<p>Appeal by the plaintiff, Otto W. Wuertz, from a judgment of the Municipal Court of the city of Mew York, rendered on the 16th day of August, 1905.</p>

Appeal, by the plaintiff,’ Charles. S. Satterly, from a. judgment of, the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Orange on the 5th day of June, 190.3, upon the decision of the court, rendered alter a trial at the Orange Special Term, dismissing, the complaint upon the merits. , The action is to recover damages for the loss- of cattle which strayed from the -plaintiff’s, lands onto the railroad tracks of the defendant and…

.- Appeal by the defendants, The City of New York and others, •from a judgment of the Supreme Court in favor of ,the' plaintiff, entered iti the office of the cleric of the county of Kings on the 1st day 5f June, 1905, upon the decision of the, court,-rendered after a trial at the Kitigs County Special' Term, enjoining the defendants •from erecting any stfucture upon any part- of Hawthorne street between Kingston and Albany-avenues, wliereby plaintiff’s easements - therein…

Appeal by Henry M. Collyer, as administrator, etc., of William Edwin Collyer, deceased, from an order.of the-Surrogate’s Court of the county of Westchester, entered in said Surrogate’s Court on the 17th day of June, 1905.

- Appeal by Patrick W. Cullinan, as State Commissioner of Excise,' from an order of the Supreme Court, made at the Orange Special Term and entered in the office of the clerk of the county of Orange on the 4th day of November, 1905, directing that liquor tax certificate No. 31,497 be amended so as to correct the street number of the premises designated therein.

Appeal by the defendants, Edward M. Grout and another, from an order of the .Supreme Court, made at the Queens County Special Term and entered in the office of the clerk of the county of Queens on the 9tlv day of December, 1905, granting a peremptory writ of mandamus. directing the appellants to receive a certain proportion of an assessment as in full payment thereof.

Appeal by the defendant, Fred P. Bennett, from a judgment of the County Court of Nassau county in favor of the plaintiff, entered in the office of the cleric of the county of Nassau on the 4th. day of May, 1905, reversing a judgment of a‘justice of the peace of the town of Hempstead. ' . . '

<p>Negligence — passenger who fell on alighting from car struck by express truck — when question as to whether or not fall was proximate cause of injury is for the jury. •</p> <p>The plaintiff, while alighting from a train, accidentally fell. An express truck drawn by the defendant’s employee at a rapid walk was then about three feet away, and owing to a failure to steer the truck so-as to avoid the plaintiff, she was struck and injured. The court directed a verdict for the. defendant.</p> <p>Held, that assuming the initial negligence of the plaintiff in falling from the train, the question as to whether or not the defendant was negligent in subsequently running the plaintiff down should have been left to the jury;</p> <p>That as the fall of the plaintiff and' the injury by the" defendant were separated in time, they did not constitute an indivisible transaction so that as a matter of law the falhof the plaintiff must, be Considered the proximate cause of the injury. That question.was for the jury.</p>

<p>Appeal by the plaintiff, Ludviska H. Larsen, as administratrix, etc., of Rognald John Larsen, deceased, from a judgment of the Supreme "Court in favor, of tlie defendant, entered in the office of the clerk of the county of Kings on the 10th day of November, 190,5, upon the dismissal of the complaint by direction of the court i after a trial at tlie Kings County Trial Term.</p>

<p>Appeal by Julius U. Burr from a judgment of the Supreme ' Court,.entered in. the office of, the clerk of the county of Suffolk on the 4th day ,of -January, 1906, pursuant to an order made at the Kings.County Special Term, and entered in the. office of the clerk . of the county of Suffolk on the 18th day of December,1905, revoking liquor tax certificate Ho, 26,199. ' ' , . '</p>

<p>Appeal by the defendant, Sandów Heringola, from a judgment of the Supreme Court, rendered on the 28th day of September, ■1904,.upon the verdict, of a jury after a .trial at the Suffolk Trial Term, convicting the defendant of'the crime of murder in the. second, degree. . ‘</p>

<p>Appeal by the plaintiff, George Palmer Thomas, from an order -of the Supreme Court, made at the Kings County Special Term aud entered in the office of the cleric of the county of Kings on the 14th day of March, 1906, denying the plaintiff’s motion for an inspection and discovery. ' -</p>

Motion by the plaintiff, John Samuels, as administrator, etc., of Aaron E. Samuels, deceased, for a new trial upon a case containing ■ exceptions, ordered to be heard at the Appéllate Division in the first instance upon the dismissal of the complaint by direction of the court after a trial at the Kings Coimty Trial Term in May, 1905. ,

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in. the office of the clerk of the county of Kings on the 25th day of January, 1905, upon the verdict of a jury for $8,000 ; also from an order entered in said clerk’s office on the 19th day of January, 1905, denying the defendant’s motion for a new trial made upon the minutes] and also from an order entered on the 2d day of February, 1905,…

Appeal by the plaintiff, Edwin H. Tucker, 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 21st day of October, 1905, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term. The defendant by a supplemental answer pleaded a general release of the cause of action, and the complaint was dismissed on the ground that the said defense was made out.

Appeal by the plaintiff, Jeremiah F. Lynch, from a judgment of the Supreme Court in favor of the defendant, the American Linseed Company, entered in the office of the clerk of the county of Richmond on the 17th day of May, .1905, upon the dismissal of the complaint by direction of the court after a trial at the Richmond Trial Term, the verdict of a jury previously rendered in favor of the plaintiff having been set aside,- and also from an order entered in said clerk’s office…

<p>Equity will enjoin police officers from-continued trespass when there is no justification therefor. -</p> <p>The power possessed by a court of equity to restrain continued trespass may be exercised agaiqst police officers when not engaged in administering or enforcing the criminal law according to the methods and procedure .of that law. Police "officers who go outside legitimate procedure;an'd" violate individual rights , of "person or property-are common trespassers and law breakers.</p> <p>Hence, when police officers continue to trespass upon premises where a legitimate business is. carried on, to its irreparable damage, and make no claim that anything illegal occurs on the premises, but merely ¡answer" that they “ suspect ” the place without justifying the suspicion, equity will enjoin them from continuing the trespass. - ‘ -.</p>

Appeal by the defendant, James B. Barlow, from a judgment of the County Court of Dutchess county in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess .on the 12th day of July, 1905, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 13th day of J uly, 1905, denying the defendant's motion for a new trial made .upon the minutes. * •

- Appeal by the . defendant, Westinghouse, Church, Kerr and Company, from a judgment of the Municipal Court of the city of New York in favor of the plaintiff, rendered after a trial before a justice without a jury.

Appeal by the defendant, the Interborough Rapid Transit Company, from a judgment of the Municipal Court of the city of New York in favor of the plaintiff, entered upon the verdict of a jury.

Appeal by the defendant, the O’Rourke Engineering 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 Richmond on the 17th day of March, 1905, upon the verdict of a jury for $4,250, and also from an order entered in said clerk’s office on the lltli day of April, 1905, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the petitioner, Charles Mefford, 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 Livingston on the 12th day of April, 1906, denying the relator’s motion for a peremptory writ of mandamus directed to Charles H. Swarts.

Motion to confirm the report of the referee and. for the removal of William D. Doherty from the office of police commissioner- of the city of Buffalo.

Appeal by the defendant, The Whitestown Water Works Company, from a final order of the Supreme Court, made at the Oneida 'Special Term and entered in the office of-the clerk of. the county of Oneida-on 'the 5 th da/of.

Appeal by the defendant, the F. O. Lindé Company, from a 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 June, 1905, upon the report of a referee.

• Appeal by the defendant, the Buffalo Elevating Company, from a judgment of the County Court of the county of Erie in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 9th day of September, 1905, upon the report of a referee.

. Appeal by the defendant, John,Linsman, from an order of the . Supreme Court, made at.the Erie Special Term and entered in the office of the clerk of the county of Erie on the 22d day of December, 1905, affirming a' judgment, of the. Municipal Court -of the— city of Buffalo in favor of the plaintiff, rendered on the, 16th day of October, 1905. .

Appeal by the defendants, Albert H. Pierson and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Seneca on the 2d day of January, 1906,- upon the decision of the court, rendered after a trial at the Monroe Special-Term, overruling a demurrer to the complaint taken on the ground that it did not state facto sufficient.to constitute a cause of action.

<p>Appeal by the defendants, William H. Gardner and others, from a judgment of the Supreme Court in favor of the plaintiffs and certain of the defendants (as to. whom the complaint was dismissed), entered in the office of the clerk of, the county of Erie on the 13tli day of May, 1904, upon the decision of the court rendered after a trial at the Erie Special Terna. ' ' ’</p>

<p>Justice’s Court — appeal to County Court — defendant setting out counterclaim for over fifty dollars entitled to new trial in County Court — pleadings—when plaintiff sues for fraud in sale, defendant may counterclaim for purchase price — when justice’s judgment reversed for failure to prove tort. .</p> <p>Although the plaintiff in an action in a Justice’s Court only demands "judgment for forty-nine dollars, the defendant on appeal is entitled to a new trial in the County Court if the answer sets out a counterclaim for over fifty dollars, and the County Court cannot dispose of an appeal from a judgment for the plaintiff upon questions of law only.</p> <p>When the complaint is in tort for fraudulent representations on the sale of a horse, the defendant (vendor) may counterclaim for the balance of the purchase , price, as both causes of action arose out of "the same transaction.</p> <p>If the complaint is in tort, and the plaintiff’s proof shows merely a breach off warranty, a justice’s judgment for the plaintiff is not-warranted by the evidence, and the defendant is entitled to a reversal on an appeal to the County Court.</p>

Appeal by the plaintiff, Richard J. Rogers, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Wyoming on the 9th day of February, 1904, upon the report of a referee dismissing the complaint upon the riierits. . '

<p>AppEAL'by the defendants, Julius M. Mayer,.as Attorney-General of the State of .HéW York, and others, from- a- judgment of the Supreme Court in favor of the plaintiffs and certain of the defendants, entered in the office of the clerk of the county of Oneida on the 3d-day of October, 1904, upon- the decision of the court rendered after a trial at the Oneida Special Term. . - - ■ ■</p>

<p>Bailment — delivery of scrip not necessary to pledge of stock—stock' pledged to successive, pledgees — in action to reform written pledge consideration may be shown thotigh not alleged — bankruptcy of pledgor no bar to such action—when demand unnecessary—trustee not boná fide purchaser. ' f</p> <p>Certificates of stock are not the stock itself; and there may be a valid pledge „of the stock by written transfer without a manual delivery of the scrip.</p> <p>Although 4tock has already "been pledged as security, to .one .party with a delivery óf the scrip, it may subsequently be pledged to another party subject to the prior lien, and the possession by the first pledgee will be regarded as the possession of the second pledgee through the agency of the former."</p> <p>•In an action to reform a written contract pledging stock when the contract itself ■ . ;Shows that the' pledge was mad.e for past and future indebtedness, it is not error to allow proof of the consideration for the pledge, although none bé alleged in the complaint. The court has power to reform such contract although the pledgor has been adjudged bankrupt, if he and his trustee are made parties.</p> <p>Under such circumstances a demand for the reformation of the contract is hot a prerequisite to an action for that purpose, .for neither the bankrupt nor his trustee could comply with the demand.</p> <p>The trustee of such bankrupt is not a bona fide purchaser for value so as to bar ■ an action to reform a contract pledging stock made by the bankrupt, for.no new lien will be created by the judgment.</p>

<p>Contract to form new corporation to buy patented process of manufacture — when same not void for requiring directors to purchase at price agreed upon—when consideration-for promise to pledge stock-to secure performance adequate — demand that pledgor repurchase forfeited security must be made within reasonable time—When latter a question of law.</p> <p>A contract entered into by a corporation owning a patented process, with another corporation and a partnership, providing for .the formation of a new corporation which is to purchase the patents for cash by the issue of stock in stated amounts, is not void and against public policy prima facie on the theory that the directors of the new corporation are to be debarred by shell contract from determining the real value of the property to be purchased, because, nothing to the contrary appearing, it will not be assumed as a matter of law that the consideration to be paid for thé patents was excessive or that the directors of the new corporation were required to approve the terms of the purchase.</p> <p>The'agreement of the patentee to turn over its. patents and property is a sufficient" consideration for a promise by the other parties to put up certain stock to secure the performance of the contract to form -a new corporation, said stock to be forfeited to the pledgee if the scheme were not carried out. ,</p> <p>But when the contract provides th$6t after the forfeiture of said stock, the pledgors, on-demand of the pledgee, shall repurchase it at a stated figure, the' demand for repurchase must be made within a reasonable time after forfeiture.</p> <p>Hence, when it is shown without contradiction that the demand that the pledgors repurchase was not made until sixteen months after forfeiture and not until ■ the stock, which "during that period had been at par, decreased in value, the "question of whether the demand was made within ajeasonable time is one of law and it is error to submit the: question of reasonable time to the jury.</p> <p>When the facts are not disputed the question of reasonable time is one of law. ¡Nor,does the. fact that the depreciation-in the value of the stock was testified to only by one of the defendants, make the question of reasonable time for the . ■ jury, when the fact is hot contradicted directly or by any legitimate inference.' Houghton, J., dissented. ■</p>

Appeal by the plaintiff, John B. .McDonald, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk off the county of New York on the ,28th day of July, 1904, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing.the complaint upon the merits.

<p>Crime—purchase of junk from infant under-sixteeh years of age — statute construed — section 290 of the Penal Code constitutional.</p> <p>Section 290 of the Penal Code which makes it a misdemeanor for a junk dealer to purchase junk of a person under sixteen years of age is constitutional as a valid exercise of the police power, for the statute is designed to protect youth and is not to he construed so as merely to prohibit the purchase of junk when stolen.</p> <p>While the purchase of junk from such a minor acting as agent of the lawful owner is not within the statute, it is not incumbent upon the prosecution to show that the minor was not an agent, as there is no presumption of agency.</p>

Appeal by the defendant, The J. T. Perkins 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 19th day of December, 1905, upon- the verdict of a jury for $B50, and also from an order entered in said clerk’s office on the-19th day of December, 1905, denying the defendant’s motion for a new-', trial made upon the. minutes. .

<p>. Appeal by the défendants, the Postal Telegraph-Cable Company and another,, from a judgment of the Supreme Court in favór of the plaintiff,. entered in the office of the clerk of the 'county of Kings on the 4tli day of February, 1905, upon the verdict'of a jury for $19,875, and also from an order entered in said clerk’s office on tlié ,7 th day of February, 1905, denying the ^defendants’ motions for, a new trial made upon the minutes.</p>

Appeal by the plaintiff, Sydney H. Palmer, temporary receiver of J. S. Neuberger & Company, a corporation, from a judgment of the Supreme .Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the. 4tli day of October, 1905, upon the dismissal of- the complaint by direction of the court after a trial at the Kings County Trial Term.

<p>Appeal by William G. Schmidt and others 'from an order of the Supreme Court, made- at the Kings County Special Term and entered in the offied of the clerk of the county of Kings on the 6th day of October, 1905, directing the appellants to complete their purchase of certain premises.</p>

Appeal by,the defendant, Charles Plunkett, from so much of an order of the Supreme Court, made at- the Kings- County Special' Term and entered in the office of the clerk of the county of Kings on the 15th day of February, 1906, as denies the defendant’s motion to strike out certain allegations of the complaint as irrelevant, etc,

Xppeal by the plaintiff, Vincenzo Zeccardi, 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 7th day of January, 1905, upon the dismissal of the complaint by direction of the court after a trial at the Westchester Trial Term.

Appeal by tlie ]Dlaintiff, Charles Seymour, from a judgment of the Municipal Court of the city of New York, borough of' Queens, in favor of the defendant, rendered on the 3d day of November, 1905.'

<p>/ Appeal by the defendant, Rossiter,. MacGovern -& Company,, from a judgment of the Municipal .Court in favor of the plaintiff..</p>

<p>Appeal by the defendant, Pincns Glickman, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of KingS'on the 22d day of May, 1905, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 16th day of May, 1905, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal . by the. defendant, St. Mary’s Hospital of the City of Brooklyn, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 9th day of December^ 1905, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling the said defendant’s demurrer to the complaint.

Appeal by the plaintiff, Thomas J. Murphy, from an inteilocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 5th day of February, 1906, lipón the decision of the court, retidefed.after a trial at the Kings County Special Term,' overruling the plaintiff’s demurrer to the second separate defense set forth in the amended-answer. ' '

<p>Town — highway commissioner—.powers in laying out highway — ultra vires contract void and cannot be ratified by town board.</p> <p>One dealing with a municipal corporation whose powers, are limited and defined by law must take notice of such limitation.</p> <p>Where, on a petition for the laying out of a highway, commissioners appointed by the court have reported in favor of the highway and that the probable cost would be about §1,000, which report has been duly confirmed, a contractor who constructed a highway at a cost of §6,000 under a contract made by the highway commissioner cannot compel the audit of his claim.</p> <p>A highway commissioner is only authorized by section 98 of the Highway-Law to take steps necessary to lay out a highway as defined in the petition therefor, and has not an unlimited discretion to pave and macadamize a newly- ' opened highway.</p> <p>As such contract is ultra vires it is void and there can be no ratification thereof by the town board, for, as the mode of contracting is limited by the statute, an implied contract cannot be raised.'</p>

Appeal by the defendant, the Cannabis 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 28th day of April, 1905, upon-the decision of the court, rendered after a trial at the Kings County Special Term,, directing, the specific performance by the defendant of a contract for the sale of certain real property. • .

AppBal by the defendant, Alfred 0. Baylis, from á judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 19th day of October, 1904, upon the verdict of a jury rendered by direction of the court after a trial at the Nassau Trial Term, and also from an order entered in said clerk’s office on the 27th day. of September, 1904, denying the defendant’s motion for a new trial made upon the minutes.

. Appeal by the defendants, Edward D- Teague 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 2-fth day of October, 1905, upon the decision of the court, rendered after a trial (at the Kings County Special Term, directing the sale of certain premises in an action to foreclose a mechanic’s lien and barring the defendants’ equity of redemption therein.

Appeal by the defendant, the New York and Queens County Railway Company, from a judgment of the Municipal Court of the city of New York in favor of the plaintiff, entered upon the verdict of a jury. Action for damages to the plaintiff’s wagon by the negligence of the defendant. '

Appeal by the defendant, Samuel Liebovitz, from a judgment in favor of the plaintiff in an action in the Municipal Court of the city of Mew York. The action was on a check for $200 given by the defendant to the plaintiff on the purchase price of a piece of real estate. The plaintiff agreed in writing to convey to the defendant’s brother the real estate, and the check was given at the same time.

Reargument of an appeal by the plaintiff, Andrew Olsen, from á judgment of the County Court of the county of Kings in favor of the. defendant entered in the office of the clerk of. the county of Kings after a trial before the court and a jury.

Appeal by the defendant, Teresa Cinque, from a judgment of the Municipal Court of the city of Mew, York in favor of the plaintiff, entered upon the verdict of a jury directed by a justice of the said-Court. - -v The action was after the termination of -a lease to recover the sum of $200 'deposited by the tenant with the landlord at the beginning of the tenancy, under a clause in the lease requiring that such deposit be made, to be held by the landlord during the tenancy- for…

Appeai by the plaintiff, Mary E. Corson, 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 20th day of March, 1905, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term. .

<p>Appeal by the defendant, the Brooklyn Heights Railroad CeSdipany, from- a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the .plaintiff, rendered -on the 16th day of. March, 1905. - ’ .</p>

Appeal by the defendants, Mary C. Flynn and others, from so much of a'judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the cleric of the county of Kings on the 3d day of January, 1906, upon the decision of the court, rendered after a trial at the Kings County Special Term, as determines a certain trust created under the will of said John Flynn, deceased, to be void by reason of undue suspension of the power of…

<p>Appeal by the defendant, the Roman Catholic Church of St. Peter, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 12th day of October, 1905, upon the verdict of a jury, rendered by direction of the court after a trial at the Richmond Trial Term, and also from an order entered in said clerk’s office on the 20th day of October, 1905, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of. the comity of Queens on the 2d day of December, 190.5, upon the verdict of a jury for $250, and also from an order entered. in paid cleric’s office on -the 29th day of November, 1905, ■ denying the defendant’s motion for a new trial made upon the minutes. .

<p>' Negligence — injury to fireman by bursting of hot water tank attached to boiler —notice of custom of firemen to wash, their clothes at the -tank — washing dirty overalls as incident to employment.</p> <p>A master operating boilers connected with a tank outside the boiler room, near which tank firemen were accustomed to eat their dinner, and at which they were accustomed to wash their soiled overalls, is bound to use reasonable care to keep the tank safe from bursting.</p> <p>When a fireman washing his clothes at the tank was scalded so that he died, by reason of the tank bursting owing,.to the rusty condition of the hoops which surrounded it, the master is liable.</p> <p>A master is chargeable with knowledge of a custom of firemen employed by him to wash clothes at such tank when the custom is of three years’ standing. '.. Although the fireman was washing his own clothes, he was performing work incident to his employment.</p>

Appeal by the plaintiff, Sarah M. Van Sise, 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 19th day of July, 1905, upon the decision of the court, rendered after a trial at the Suffolk Special Term, dismissing the complaint upon the merits.

Appeal by the defendant, Stephen Matherson, 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 12th day of October; 1905, upon the decision of the court rendered after a trial at the' Kings County. Trial Term without a jury.

Appeal by the defendants, Amzi L. Barber and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Westchester on the 20th day of Hay, 1905, upon the decision of the court, rendered after a trial at the Westehester Special Term, relieving the plaintiff of the forfeiture of his stock in the Pan-American Company and of two certain contracts between the plaintiff and 'the defendants Barber and Albright, upon…

Appeal, by Frank K. Chandler and another, as executors, etc., of Mary E. Yan Aulen, deceased, 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 13th day of November,, 1905.

<p>Tax Law—certiorari to review assessment of lands—when owners not affected in the same manner cannot join as relators.</p> <p>When parties joining as relators to a writ of certiorari to review an assessment of lands on the ground of the inequality thereof áre not “ affected in the same manner” as provided in section 250 of the Tax Law, the writ will be quashed for misjoinder of parties.</p> <p>The relators are not “affected in the same manner” when their petition shows that neither petitioner owns lots in any city block in which the lots of either of the other relators are situated-; 'that no two of the lots are of the same assessed valuation, and that the reductions in value asked are not uniform either as to owners or lots.</p> <p>Woodwabd and Miuleb, JJ., dissented.</p>

Appeal by the defendant, the National .Provident Union, 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 3d day of April, 1905, upon the verdict of a jury rendered by direction of the court after'a trial at the Kings County Trial Term.-

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

<p>.Summary proceedings — when petition fails to recite petitioner’s interest in the premises—.such defect robs Municipal Court of New York of jhris.diction—defect not amendable — facts constituting eviction — receipt for rent is not contract.</p> <p>When-the petition in summary proceedings merely states that the petitioner is “ lessee and landlord ” of the premises, it fails' to. state the interest of the- petitioner as required by section 2235 of the Code of Civil Procedure.</p> <p>Such defect deprives' the Municipal Court of New York of jurisdiction and it cannot he cured by amendment, being jurisdictional. .</p> <p>A defendant by answering after the denial of his motion to dismiss does not waive such jurisdictional defect.</p> <p>Even were the amendment permissible the petitioner must avail herself of permission to amend during the trial; she cannot wait until the close thereof and • move to conform the "pleading to the proof.</p> <p>Proof by tenants that part of the premises had been let to other parties establishes an eviction which bars the right of the owner to maintain summary proceedings for non-payment of rent.</p> <p>A receipt for rent given to a tenant does not constitute the contract of leasing.</p>

<p>Negligence — passenger pushed from overcrowded car .by fellow-passenger — overcrowding of car not proximate cause of injury.</p> <p>When a passenger, riding on" the step of an overcrowded car was pushed from, his position hy a fellow-passenger, who loosened the plaintiff’s hold .in an attempt to pass behind him to the bumper of the car, and no act of the defend, ant’s employees .contributed to the accident, the overcrowding of the car was • not the proximate, cause- of the accident and the plaintiff 'is not entitled to recover. „</p>

<p>Fire insurance — when vendee is' let into possession .of lands there is a change of title or interest — rights of such vendee to recover on policy-taken out by vendor — what constitutes interest.</p> <p>One let into possession of real"property under.a valid contract to purchase takes “title’’.within the meaning of the clause of the standard Are insurance., policy-which provides.that.the policy shall be void “if atiy.change * * * takes place in the interest,, title, or possession óf the subject of insurance,” and is not entitled to recover under a policy taken out by the. vendor.</p> <p>In any event there is a change of “interest” for the word is broader than title and embraces both .legal and equitable rights.</p> <p>The test is whether the vendor has parted with the' absolute control and dominion over the property insured. If he has, a change in “interest” has been effected and the policy is void.</p>

Appeal by J. Madison Wells, the executor named in the last will and testament of Jonathan Preston, deceased, from a decree of the Surrogate’s Court of the county of Suffolk, entered in said Surrogate’s Court on the 10th day of June, 1905, refusing to admit to probate a paper purporting to be the last will of Jonathan Preston, deceased. - On February 11, 1904, William T. Boss, a nephew of Jonathan Preston, instituted proceedings cíe lunático inquirendo to have his uncle…

Appeal in each of the above-entitled actions by the defendant, The J. L. Mott Iron Works, from a judgment of the Supreme Court in favor óf the plaintiff in each action, entered in the office of the clerk of the county of Kings on the 16th day of March, 1905, upon the verdict of a jury for $1,250 , in the first action, and for $500 in the second action, and also from an order in each action, entered in said clerk’s office on the 7th day of April, 1905, denying the defendant’s…

Appeal by the defendant, Henry Conklin, 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 December, 1905, directing that a. warrant issue to commit the defendant to jail until the payment of alimony.

<p>Abatement of action for personal injuries— Code of Civil Procedure, sec- " tion ‘764, construed — death of defendant after reversal of judgment for - plaintiff abates action.</p> <p>Sectiqp 7.6.4 of the-C.ode of Civil Procedure,-as amended in 1890, should be. construed to mean that a 'cause of action for personal in j uries survives the death .of a party only in case a verdict, report or decision is reversed, upon, questions -of-law only, after the death of the party; that such action abates when .the . .yerdipt of a jury is set asido or.tlie judgment entered- thereon is reversed, if the.p.arty,against whom the same was rendered dies before another trial is had,</p> <p>Sticli. amendment preserves tlie action only when tlie judgment is reversed on questions of. law only subsequent to the death of a party. If a reversal-is upon questions of fact as .well- as of, law the action'abates at the death of-a .".party before.a new trial- is. had.</p>

<p>Appeal by the plaintiff, Theodore Volosko, from a judgment of the SnpTeme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 31st day of December, 1904, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 24th day of January, 1905, •denying the plaintiff’s motion for a new trial made upon' the minutes.</p>

<p>Principal and agent—bills and notes, when drawee of-order accepts as agent of another — when principal bound by acceptance by agent.</p> <p>An owner of real estate made written application to one Pelletreau, a broker, fbr a loan upon his premises, -to be used for the construction of buildings thereon. The application contained the words, ‘ Loans to be made by John McLoughlm,” and was indorsed across the face, “Accepted, and agree to produce said loan as stipulated. Yenette P. Pelletreau.” Thereafter the owner executed to John McLoughlin, the defendant, his bond, payable on demand, containing the provision, “ it is expressly agreed that the owner of this bond shall he under no obligation to make any advances whatever on this bond, and that said owner can at any time demand and thereupon collect whatever advances have been up to that time made, with interest.” The bond was secured by a mortgage upon the premises, with a like provision. Orders were drawn upon Pelletreau by the owner of the land, and on those orders the plaintiff advanced moneys which were used iu carrying on the work of construction of the buildings on the premises. The plaintiff seeks to recover on the theory that» Pelletreau, in accepting the orders, was the agent of the defendant. The amount of the bond and morigage was in excess of the amounts advanced by defendant and of said orders.</p> <p>Reid, that the evidence sufficiently established that Pelletreau was acting as agent for the defendant in accepting the orders; that defendant knew the orders had been issued and used to secure ready money tó carry on the work of construction until the various installments provided for by the loan mortgage should be realized, and there was au obligation on him to see that the advances were applied to the payment of tiie orders. Under such,circumstances the defendant . is estopped from questioning his liability.</p>

Appeal by the plaintiff, Joseph S. Tracy, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the cleric of the county of Westchester on the 21st day of November, 1905, directing the plaintiff to accept the defendant’s amended answer.

Appeal by the defendants, The Star Suburban Realty -Company 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 Queens on the 1st day of February, 1906, continuing pendente lite an order restraining the Star Suburban Realty Company, its officers, directors and stockholders, from removing the plaintiff from the board of directors of said company and from interfering with plaintiff in…

<p>Appeal by the plaintiff, Swante Albert Johnson, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Richmond on the 24th day of October, 1905, upon the dismissal of the complaint by direction of the court after a trial at the Richmond Trial Term. .</p>

Appeal by the defendant, Louisa H. Gammon, from an order of the Supreme Court, made at the Suffolk-Special Term and entered in the office of the clerk of the county of Suffolk on the 27th day of February, 1906.

Appeal by the plaintiff, Samuel B. Bowen, doing business as S. Bowen’s Son, from a judgment of the Municipal Court of the city of Mew York-, borough of Brooklyn, in favor of the defendant, rendered on the 29tli day of May- 1905.

Appeal by the plaintiff, Michael IL Neville; from a judgment of the Court of the city of New York, borough- of Brooklyn, in'favor of tlie plaintiff, rendered on the.28th day of September, 1905. - ' ' ' . . ■; . ■ •

<p>Civil service — classification attacked by exempt clerk seeking reinstatement — estoppel — application of section 1543 of the charter" óf city of New; York. ...</p> <p>The classification of clerkships adopted by a municipal civil service commission cannot be attacked directly or collaterally by a person seeking reinstatement to office on the theory that his appointment to public service without examination was" illegal under the Constitution.</p> <p>• Thus, "a clerk of the police departmcntbf the city of New York who is classified - as exempt, and has .been appointed without examination, is not a “regular clerk,’’-or a person holding a positión “ subject to competitive examination,” within the" meaning of section 1543 of the charter, and is not protected from removal by said section. ,</p>

Certiorari issued out of the Supreme Court and attested on the 3d day of July, 1905, directed to the board of supervisors of the county of Westchester and others, commanding them, to certify and return to the office of the clerk of the county of .Westchester all and singular the proceedings .had in levying a certain assessment against the town of Cortlandt. . . '

<p>Watercourse—right of upper riparian owner to store water in dam— flow of water may be interrupted in time of drought—easement created by grant not extinguished by nonuser—reservation by grantor of mill rights construed — extra allowance.</p> <p>The upper owner of riparian rights may detain the flow of the stream to accumulate the water in a dam for mill purposes so long as the use is reasonable and not in excess of the ordinary flow of the stream. The court will not intervene to restrain such owner from using the water at night and accumulating it by day when it has been the custom of millowners on the stream to operate by night or day as convenient.</p> <p>In times of drought an upper owner may, owing to his advantage in position, impede the flow sufficiently to create a head of water, although lower owner» are temporarily deprived of the usual flow.</p> <p>An easement in watercourses, when created by deed, is.not extinguished by non user in the absence of unequivocal acts or conduct showing an intention to abandon it.</p> <p>It will not be presumed that a grantor of mill privileges in reserving the use of the dam “ as heretofore for the benefit of the privileges below” intended to restrict the grantee to the precise use made of the property prior to the grant. Moreover, the failure of the grantor’s successors in title to object for forty-three years to improvements made by the grantee favors the above construction.</p> <p>Where the right of plaintiff to have the unobstructed flow of the stream is at issue, and this is shown by affidavits, uncontradicted, to be of the value of $10,000, the value of the subject-matter involved is sufficiently proven to warrant an extra allowance.</p>

Appeal by the plaintiff, Robert Sanford, from a judgment of the Supreme Court in favor of' the defendants, entered in the office of' the clerk of 'the county'of Dutchess on the 1st day of September, 1905, pursuant to an order made at the Dutchess County'Trial Term and entered in the office of the clerk of the county of Dutchess on the 31st day of May, 1905, dismissing the complaint on the ground that it failed to state facts sufficient to constitute a cause of action, and…

<p>Will — bequests subject to deduction construed.</p> <p>A testator gave to each of three children property of the value of §10,000, and also gave certain shares of stock estimated to be worth §15,000 in trust, the income to be paid to his widow for life, and, on her death, said income to his grandson, O., until he should reach the age of twenty-three years, or sooner die; remainder to said 0..if the widow died and O. reached the age of twenty-three years. He also gave his residuary estate in trust, income to his three children and widow, and on the death of the widow the same to'be divided into three shares to be held in trust for the .use of his three children, etc.</p> <p>The will further provided that “ before any payment of principal shall be made to my said grandson,” O., “there shall be deducted therefrom the sum of §5,000, which shall be treated as part of my residuary estate hereinbefore mentioned,” the object being to “ prevent my said grandson, by reason of the</p> <p>provision contained in the 6th clause of my will receiving a larger proportion . of my estate than any other one óf my grandchildren." ■ .</p> <p>ÍZéto,‘that on the death of the widow, and on 0. attaining the age of twenty-three years, the said deduction should be made from the principal of the trust of stock, valued at §15,000, created for the benefit of the widow and said O., and should not'be deducted from the residuary estate.,</p>

Appeal by the defendant, Alva P. Blanchard, 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 June, 1904, ■ upon the verdict of a jury rendered by direction of the court after a trial at the Kings County Trial Term.

<p>Appeal by Lillie M. Dewitt from that part of a decree of the 'Surrogate’s Court of the county of Orange, entered in" said Surrogate’s Court on the 10th day of October, 1904, which admits to "probate certain portions of the will of Harvey Ñ.. Dewitt, deceased.</p>

Appeal by the plaintiff, Tire People of the State of Mew York,, from an order of the County Court of Westchester county, entered in the office of the clerk of the county of Westchester on the 2d day. of September, 1905, sustaining the defendants’ demurrers to an indictment and directing that said defendants be discharged. ■

. Appeal by the plaintiff, James H. Murphy, an infant, by John. P. Murphy, his guardian ad litem, from a judgment óf the County, Court of Orange, county in favor of the defendant, entered in the office of the clerk of the county of Orange-on the 5th day of. October, 1905, reversing a judgment Tendered in the Justice’s. Court of the town of Deerpark.

<p>Appeal by the plaintiff, Herbert E. Egleston, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Westchester on the 7th day of February, 1905, upon the decision of the court, rendered after a trial at the Westchester Special Term, sustaining the defendants’ demurrer to the complaint.</p>

<p>Appeal by the plaintiff, The Herbert Land Company, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the_ 6th day of January,, 1906, opening a default and vacating a judgment entered thereon.</p>

Appeal by the plaintiff, Ella M.-Pelletreau, from a judgment of the Supreme Court in favor of the defendants, entered in. the office of the clerk of the county of Kings on the 27th day of February, 1905, upon the decision of the court, rendered after a trial at the Kings County Special Term,’ dismissing the complaint upon tli.e merits.. Suit by the purchaser to enforce specific performance of -a' contract for the sale of real estate.

Appeal by the plain tiff, William GeHerj ah infant, by Abraham Gerber, his guardian ad litem, from a judgment of the Supreme Court in favor of tile defendant,' entered in the office of the clerk of the county of Kings on the loth day óf' March, 1905, upon the dismissal of the complaint by direction ofthe court after a trial at the Kings County Trial Term.

Appeal by Alfred 0. Cowan, former attorney- for the plain tiff, 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 9th day of March, 1906, substituting other attorneys in his.stead, fixing the amount of his compensation and making it a first lien upon any recovery by the plaintiff.

Appeal by the plaintiff, Margaret Rooney, as administratrix, etc.,of John Rooney, deceased, 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 21st day of November, 1905, upon the verdict of a jury, and also from an order entered in said .clerk’s office on the 19th day of October, 1905, denying the plaintiff’s motion for a new-trial made Upon the minutes. ,

Appeal by James H. Ollif and others from an order of the Supreme Court, made at the Kings County Special TJerm and entered in the office of the clerk of the county-of Kings on the 29th day of ¡November, 1903, confirming the report of the com- - missioners of appraisal herein appointed under a judgment of. condemnation.

Appeal, by the. defendant, The New York Tunnel Company, from á judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of, the cpunty-of New York on the 20th day of November, 1905, upon the verdict of a jury for $3,000; also from an order entered in said clerk’s office on the 15th day of November, 1905, denying the defendant's motion-for a new trial made upon the minutes, arid, also'from an order entered on the 16 th day of November, 1905,…

<p>Appeal by the defendant, Hugh R. Garden, 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 20th day of December, 1905, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant’s demurrer to the complaint...</p>

Appeal by the defendant, the Mail and Express Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 4tli day of January, 1906, upon the decision of the court rendered after a trial at the New York Special Term.

Appeaíl by the plaintiff, Patrick A. Qeoghegan, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 19th day of April, 1905, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial-Term.

Appeal by the defendants, the De Forest Wireless Telegraph Company 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 16th day of February, 1906, as resettled by an order entered in said clerk’s office on the 26th day of February, 1906, granting a discovery and inspection of certain books and papers of the De Forest Wireless Telegraph Company.

<p>Testamentary trust — formal distribution of continuing trust not determined on accounting by resigning trustee — matters considered on appointing substituted trustee — when expenses caused by unfortunate investme'nts should be charged to principal.</p> <p>The question as to who are entitled to a trust estate on the death of the life beneficiary should not be determined on the accounting of a trustee thereof who retires, but should be left until the termination of the life estate.</p> <p>In appointing a substituted trustee it is proper .to consider the relations of the life beneficiaries with the proposed trustee and to what extent his actions would be influenced by them.</p> <p>The discretion of a referee in recommending a trust company as substituted trustee confirmed.</p> <p>When a trustee who has invested in a mortgage on realty has -been compelled to buy in the property on foreclosure and is unable to sell it, the cost of carrying the property, together with the legal expenses incurred, should be charged to the principal of the trust and not be deducted from the income of the life beneficiary.</p>

Appeal by the plaintiffs, Florence Nunnally and others,.'from an interlocutory judgment of the Supreme Court in favor of. the. defendant- Robinson, as receiver, entered in the office .of the.clerk of the county of New .York on the 6th day of February, 190.6, upon the decision of the court,, rendered after a trial at the New York Special Term, sustaining a demurrer interposed by the said defendant receiver to the amended complaint.

Appeal by the defendant, John H. Starin, 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 lltli day of January, 1906, upon the verdict of a jury for $10,000, and also from aft order entered in said clerk’s office on the 12th day of January, 1906, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, the New York Life Insurance Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 27th day of January, 1906, upon the decision of the court rendered after a trial at the New-Yolk Special Term, overruling the defendant’s demurrer to the amended complaint.</p>

Appeal by the plaintiff, the Wright. Steam Engine Works, from a, judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk, of the county of - Héw York on .the 2d . day of August, 1905, upon the report of a referee.

<p>Appeal by the claimant, August Schieck, 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 July, 1905, confirming the report of a referee appointed to determine the title to certain- surplus moneys.</p>

<p>— Judgment and orders affirmed, without costs of the appeal to party.</p>

Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, rendered on the 17th day of June, 1904, dismissing the plaintiff’s complaint. '

order directing the defendant -to pay tó .the plaintiff’s attorney the sum of §2,000-to print the record, on appeal from the final judgment' in .this action. ’ ■; ¡-.’i .... . . . , -

Judgment affirmed, with costs, on the opinion of the court below (Bergmann v. Lord, 51 Misc. Rep. 213), with leave to defendants to withdraw demurrer and to answer on payment of costs in this court and in the court helow. Order-filed.

<p>Judgment and order denying motion for new trial affirmed, with costs.</p>

<p>Judgment affirmed, with costs.</p>

<p>Appeal from a judgment in favor of the defendant after a trial at the Westchester Special Term. Suit to cancel-a lease of land for non-payment of taxes. The land was assessed on the non-resident list for 1898 in the town of Cortlandt, Westchester county. The owner resided in the city of Mew York, but the land was occupied by a z'esident of the town.</p>

<p>Assignment — agreement to assign contract for purchase of property construed— consideration paid to assignor for such' assignment does not impose on him the payment to the vendor of the consideration for the actual transfer of the property.</p>