Volume 114 — New York Appellate Division Reports

<p>Civil.service —mandamus to compel reinstatement of auditor of board of education in city of New York—laches — power of board to abolish unnecessary office.</p> <p>One removed from a position in the classified civil service of the city of New York who waits sixteen months without excusing his delay before seeking reinstatement by mandamus is guilty of laches and the writ will he denied.</p> <p>When the return to a petition for mandamus alleges the laches of the relator, the allegation must be taken to he true on a motion for a peremptory writ in the absence of a finding on that question.</p> <p>Although a motion to dismiss the alternative writ was made on the ground of laches, such defense if pleaded is available on a motion for a peremptory writ, and casts the burden on the relator lo excuse his delay.</p> <p>The hoard of education of the city of New York may abolish an unnecessary office in the classified service, or transfer the incumbent to some other position in the department without preferring charges.</p>

<p>Contract to paint portrait — when artist’s studio presumed to he place of delivery—when artist holds as bailee of purchaser — delivery excused by act of purchaser repudiating contract.</p> <p>When an artist paints a portrait and the contract fixes no place of delivery, the implied place of delivery is the artist’s studio, and when the portrait is finished at the studio to the satisfaction of the purchaser, the artist is not required to show any further delivery in order to recover the reasonable value of the work.</p> <p>Moreover, when on the completion of such portrait the purchaser requests the artist to keep it for exhibition, there is a constructive delivery; the title passes and the artist holds the portrait as bailee for the purchaser and may recover its value.</p> <p>When on the completion of the portrait the purchaser repudiates the contract by refusing to pay the balance of the established value of the portrait, the artist is excused from delivery and may retain possession as security and sue for the balance due.</p>

<p>Appeal by tlie defendant, Max Hart, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, rendered on the 26th day of May, 1905, convicting the defendant of the crime of grand larceny in the first degree.</p>

<p>Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 30th day of October, 1905, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office oh the 29th day of November, 1905, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal, by permission, by the defendant., David J. Straus, from an order of the Appellate Term, entered in the office of the clerk of said court on the 3d day of November, 1905, affirming a judginent of the Municipal Court of the city of New'York, borough of Manhattan, in favor of the plaintiff, entered in the office of the clerk of said court on the 19th day of July, 1905.

<p>Negligence — injury by fall from bridge over excavation in street — dismissal of complaint sustained.</p> <p>The plaintiff while walking on a city street dropped a piece of money which rolled out on a temporary bridge erected not as a thoroughfare but to facilitate the removal of earth excavated from a subway. The plaintiff went upon the bridge to recover the rolling coin and fell into the excavation. The entrance to the bridge was not guarded by barriers, but it was broad daylight and there was no defect in the bridge save that som'e planks were shorter than others.</p> <p>Held, that there was no negligence on the part of the city or the contractor constructing the subway on which to base a recovery;</p> <p>That the accident was caused by the contributory negligence of the plaintiff;</p> <p>That the defendants were not bound to anticipate that an accident of this kind might happen.</p>

Motion by the defendants, Alexander Lazard and others, for a new trial upon a ease containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the Arerdict of a jury in favor of the plaintiff, rendered by direction of the court after a trial at the Mew York Trial Term in January, 1906.

Appeal by the lienor/ Harris H. Ur is, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of January, 1906, canceling his notice of lien because of failure to prosecute the same pursuant to a notice given by the owner as prescribed in section 3417 of the Code of Civil Procedure.

Appeal by the defendants, Sarah Conner and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of April, 1906, denying the defendants’ motion for a bill of particulars.

<p>Appeal by the defendant, the Erie Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 11th day of November, 1905, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 10th day of November, 1905, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>This is an action by a passenger against a common carrier for personal injuries alleged to have been sustained by her in alighting from one of defendant’s passenger cars at Forest Hill, N. J., owing to defendant’s negligence in omitting to have a proper platform at its said station, upon which passengers might alight, and in omitting to have the landing place properly lighted, and in failing to have a stepping box for the use of passengers, and in failing to have an employee stationed at the landing place to give assistance to the passengers, or warning of the danger in alighting from its trains.</p> <p>The plaintiff is an unmarried woman, thirty-two years of age, and at the time of the accident resided at Forest Hill in the city of Newark, N. J. She held a position as stenographer in New York. She had resided at Forest Hill eleven years and during that period she had been accustomed to go back and forth to New York almost daily over defendant’s railroad and ferry. On the 5th day of September, 1902, in company with Addison B. Truesdell, a cousin, she left Jersey City on the defendant’s local train at seven-seventeen in the evening and arrived at Forest Hill station at about seventliirty-eight p. m. The train consisted of a locomotive and four cars, a baggage and combination smoking car next to the engine, then two ordinary day coaches and an extra smoker in the rear. The plaintiff and her companion boarded the third car from the rear platform and took a seat about midway of the car. When the train stopped at Forest Hill for passengers to alight, it was standing on the west-bound main track, which was the most northerly track. The station is on the south side of the tracks. There -was a platform extending along the southerly side of the east-bound track in front of the station and a considerable distance beyond either end, but there was and had been no platform between the tracks or to the north of the west-bound track. During all this period the defendant had been accustomed to discharge passengers from its west-bound trains upon the ground between the two tracks, and with this custom the plaintiff was thoroughly familiar, as she had alighted from cars at that point both in the daytime and in the evening almost daily, except Sundays, during the entire period. When the train stopped, the plaintiff, preceding her companion, passed to the front of the car and out upon the platform and down the steps on the south side, where, according to her evidence, one or more passengers had preceded her in alighting, and, according to the evidence introduced by the defendant, many passengers had preceded her and were assisted by the conductor. She testifies that she saw the conductor standing near the steps from which she was alighting, but a little to her right or toward the front of the train, and opposite the bumpers between the car on which she was riding and the next car, and that he had no lantern. She had a parcel in one hand. After reaching the lower step and standing with both feet upon it, she determined that the step was so high that she would jump, and she did jump, and in doing so she fractured the fibula of her right ankle. This action is brought to recover the damages thus sustained. According to her testimony, which was corroborated by the testimony of other witnesses, the ground between the tracks where passengers were accustomed to alight was covered with broken stone or gravel, level with the ties, but having holes or depressions therein at different places, varying from four inches in depth to a “ mere sag,” caused principally by the exhaust steam from the engine. The testimony introduced by the defendant, however, tended to show that the broken stone was covered with fine stone dust which gave it a hard, smooth surface, filled in on a level with the top of the rails. The plaintiff did not testify that the ground was uneven where her foot landed, or that she stepped in a hole or depression, or slipped. The plaintiff testified that at Jersey City where the platform was level with the rails, she discovered that the step of this car, as she was going upon it, was about two feet high and that it was over two feet where she alighted. According to the testimony of her cousin, the step was two or two and one-half feet high. It does not appear, however, that either the plaintiff or her cousin measured the height of the steps, and it is evident that their testimony is a mere expression of opinion on that point. According to the testimony of the conductor and several other witnesses called by the defendant, who measured the height of this step above the rail, it measured exactly fourteen inches above the rail and was about the ordinary height of steps on passenger cars. According to the testimony of the plaintiff, the space between the tracks where passengers were alighting was not well lighted. There is evidence that it was then between daylight and dark, and there is also evidence that it was quite dark. The plaintiff also testified that no stepping blocks or boxes were in use at that place, and that she had never before jumped from the step of a car. She testified that she was five feet three inches in height, and weighed about 138 pounds, and the reason she assigned for jumping was “ to use the vulgar expression, I could not straddle down that step, it was too high.”</p> <p>At the close of the plaintiff’s case the defendant moved for a nonsuit upon the ground that the plaintiff failed to show that she was free from contributory negligence or that her injuries were due to negligence on the part of the defendant, and at the close of all of the evidence moved for a dismissal of the complaint on the same ground. The motions'were denied, and counsel for the defendant excepted. Counsel for the defendant, at the close of the main charge, requested the court to instruct the jury “ that if the plaintiff was injured in consequence of the jump and not because of any depressions in the ground or holes at the place where she says the accident occurred, she cannot recover. If the plaintiff knew the place where she alighted contained depressions or holes, and with this knowledge she jumped, she is guilty of contributory negligence and cannot recover.” The court replied: “ I refuse to charge other than I have charged on that subject,” and counsel for defendant duly excepted.</p>

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

Appeal by John P. Bolle from an order of the Supreme Court, made at the Bew York Special Term and entered in the office of the clerk of the county of Bew York on the 27th day of October, 1905, directing the inspectors of election of the second election district of the fifteenth Assembly district of the county of Bew York to strike the name of John P. Bolle from the register of electors of said district.

Appeal by the plaintiffs, Pincus Lowenfeld and another, 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 5th day of January, 1906, upon the report of a referee dismissing the complaint upon the merits.

<p>Appeal by the defendant, Bertha Loewenstein, individually and as executrix, etc., of Meier Loewenstein, deceased, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 21st day of March, 1906.</p>

Appeal by the defendants, Abner T. Bowen 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 23d day of February, 1906, denying the said defendants’ motion to correct and amend a judgment entered on the 23d day of January, 1906, on a remittitur from the Appellate Division.

Appeal by the defendant, James McClenahan, as executor, etc., of David Stevenson, deceased, and as executor, etc., of Sewannee M. Stevenson, 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 5th day of February, 1906, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the said defendant’s demurrer to the complaint.

Appeal by the defendants, Thomas B. Robertson and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff,entered in the office of the cleric of the county of New York on the 5th day of February, 1906, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the said defendants’ demurrer to the complaint.

Appeal by tlié plaintiff, Charles L. Sanger, from a judgment of the Supreme Court in favor of the defendants Theodore H. Price and others, entered in the office of the clerk of the county of-New York on the 17th day of November, 1905, upon the report of a referee dismissing the complaint as to said defendants.

<p>Negligence — degree of care required of child on public streets — death of child caused by automobile — erroneous charge as to contributory negligence.</p> <p>Every person using the public streets is held to the degree of care which could be reasonably expected of a person of his age and intelligence, and tne question of sui juris or non sui juris only becomes important in considering whether the parents or guardians of an infant were negligent in allowing the child to go upon the streets unattended. But the degree of care and attention required of an infant in order to exculpate him from-contributory negligence is not the same as in the case of an adult in full possession of his faculties, but depends upon the age and intelligence of the child.</p> <p>It is for the jury to say what care and caution should be expected of an iufant of a certain age and intelligence. If the jury find that such care and caution was exercised there is no contributory negligence of the infant which bars a recovery.</p> <p>Hence, when a child eight years of age, bright and active, and in the habit of taking care of himself upon the streets, has been injured by an automobile which rounded a corner at high speed, and there is evidence that the accident was caused by the child running in front of the car and falling when it was so near that the driver was unable to stop, it is error to refuse to charge that the jury may find that the child was capable of some care in conducting himself in the streets, and if in exercising such care he could have avoided the automobile, but did not do so, there can be no recovery.</p> <p>O’Buibn, P. J., dissented.</p>

<p>negligence — death of pedestrian caused by surface car — failure of decedent to heed warning — judgment for plaintiff reversed.</p> <p>The plaintiff’s intestate, while leading a cow at night, was struck and killed by a surface car coming from behind. The evidence showed that the car was proceeding at a speed of five or six miles an hour in a sparsely populated part of the city; that as soon as the motorman saw the intestate he rang his bell; that the intestate paid no attention to the bell, but when the car was about twenty-five feet from him crossed to the track on which the car was moving, and although the motorman put on the brake and reversed the car he was unable to stop it before it struck the intestate.</p> <p>Reid, that a verdict for the plaintiff was against the weight of evidence.</p> <p>O’Brien, P. J., and Houghton, J., dissented.</p>

Motion by the exceptant, George W. Keeler, fora 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 at the opening of the case upon a trial at the New York Trial Term in February, 1906.

<p>Certiorari issued out of the Supreme Court and attested on the 28th day of March-, 1904, directed to William McAdoo, as police commissioner of the police department of the city of New York, requiring him to certify and return to the. office of the clerk of the county of New York all and singular the proceedings liad before the police commissioner in relation to the dismissal of the relator from the police department.</p>

<p>Appeal by the defendant, Irving Broka'w, from portions of an order of the Supreme Court, made at the Yew York Special Term bearing date the 16th day of April, 1906, and entered in the office of the clerk of the county of Yew York, directing a retaxation of costs herein.</p>

Appeal by the defendant, the American Woolen Company, from an interlocutory judgment of the Supireme ’Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 29th 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 complaint.

Appeal by the defendant, The J. L. Mott Iron Works, from an order of the Supreme Court, made at the Hew York Special Term bearing date the 1st day of March, 1906, and entered in the office of the clerk of the county of Rew York, denying a motion to vacate a former order directing the examination before trial of certain officers of the defendant coloration.

Appeal by the defendant, Wicks, Hughes & Company, from so much of an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 23d day of March, 1906, as imposes a condition upon granting a motion to open the defendant’s default.

Appeal by the plaintiff, Eleanor Bawls Beader, from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 25th day of April, 1906, directing that the plaintiff be preeluded from giving -evidence of those parts of the affirmative allegations of the complaint as to which particulars were not served as directed.

Appeal by thé plaintiff, Athole B. Reader,-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 25th day of April, 1906, directing that the plaintiff be precluded from giving any evidence of certain affirmative allegations of the com, plaint as to which he failed to serve particulars as directed.

Appeal by the plaintiff, the Cerro De Pasco Tunnel and Mining Company, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 25th day of April, 1906, directing that the plaintiff be precluded from giving any evidence of certain affirmative allegations of the complaint as to which it failed to serve particulars as directed.

<p>Appeal by tlie defendant, the Congregation Shearith Israel in the City of Hew York, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Hew York on the 18th day of July, 1905, upon the report of a referee.</p>

<p>Sheriff’s right to poundage on attached property ■— property not released from poundage although undertaking he given — when plaintiff cannot dispute sheriff’s right to poundage.</p> <p>The right of a sheriff of the county of New York to poundage on property attached is governed by subdivision 2 of section 17 of chapter 523 of the Laws of 1890,- as amended by chapter 418 of the Laws of 1893, and also by the provisions of section 709 of the Code of Civil Procedure. By virtue of these statutes an attachment cannot be discharged until the sheriff’s fees and poundage arc paid.</p> <p>V</p> <p>A defendant by giving an undertaking to discharge an attachment on his property admits that the levy was valid, but the levy is not discharged by such undertaking until the sheriff’s foes and poundage have been paid.</p> <p>A plaintiff in whose behalf an attachment has been made who does not repudiate an undertaking given by the defendant in lien thereof cannot dispute the sheriff's claim to poundage.</p>

<p>Appeal by the defendants, Lee Monsheimer and others, from an order of the Supreme Court, made at the New York Special Term and entered ill the office of the clerk of the county of New York on the 24th day of April, 1906, denying a motion to compel a receiver appointed pendente lite to account.</p>

Appeal by Patrick Furey 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 27tli day of October, 1905, directing the inspectors of election of the thirty-fourth election district of the thirty-second Assembly district of the county of New York to strike the name of Patrick Furey from the register of electors of said district.

<p>Appeal by the plaintiff, Ambrose B. Stannard, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 3d day of March, 1906, upon the decision of the court, rendered after a trial at the Hew York Trial Term, the jury having been discharged,. dismissing the complaint upon the merits.</p>

Appeal by the defendant Katherine E. Whelen from an order of the Supreme Court, made at the Kew Fork Special Term and entered in the office of the clerk of the c.ounty of Kew York on the 8tli day of May, 1906, denying said defendant’s motion to compel the defendant Thomas W. Evans Museum and Institute Society to accept service of her answer herein.

<p>Landlord and tenant — conversion of tenant’s property on dispossession — evidence showing conversion — when no abandonment by tenant — weight of evidence.</p> <p>Under a writ of dispossession a landlord is entitled to dominion over the realty only and has no right to retain or use personal property on the premises, not in the nature of fixtures, belonging to the tenant.</p> <p>A landlord who on dispossessing a tenant employs a steward formerly in the tenant’s employ and puts him in possession of the tenant’s chattels remaining on the premises with instructions not to allow the tenant access to them is liable for conversion.</p> <p>Although it be alleged that the conversion took place on the specific day such instructions were given to the steward, it is not error to admit evidence of similar instructions given to the steward on the following day, or of a refusal of the tenant’s request to be allowed to take the goods away.</p> <p>As the property converted consisted of wines, they were not abandoned by the tenant by his failure to remove them before dispossession, as the doctrine of abandonment applies to fixtures only.</p> <p>Evidence considered and</p> <p>Held, that the evidence in favor of the defendant did not so preponderate as to warrant the trial court in setting aside a verdict for the plaintiff.</p>

Appeal by the plaintiff, Emma Scheibeler, from that portion of an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the cleric of the county of New York on the 26th day of December, 1905, upon the decision of the court rendered after a trial at the New York.Special Term which dismisses the complaint herein.

<p>Contract for future delivery of grain — when same not in violation of Illinois statute against gambling — when note given in payment therefor enforcible — when defendant allowed full opportunity to present defense — evidence of intent to gamble — effect of motion for direction of verdict — damages — interest on three per cent note.</p> <p>Under the Illinois statute against gambling in grain an actual purchase of grain for future delivery, or a contract for actual future delivery, is not illegal. It is only when the parties have no intention of receiving or delivering the grain, but intend to settle by the payment of the difference between the contract and market prices, that the contract is a gambling contract and incapable of enforcement. Moreover, both parties must concur in such agreement, and the undisclosed intention of one party so to treat the contract is immaterial and insufficient to invalidate it.</p> <p>The words “option,” “put” and “call” defined.</p> <p>A note given to a broker in settlement of transactions in grain alleged to have been in violation of said statute is not invalidated merely because the statement from which the balance between the parties was struck contained illegal items, but it is incumbent upon the maker of the note to show that the illegal items changed the balance in Ills favor.</p> <p>When such statement is made up of independent transactions the legal transactions are not invalidated because other transactions were illegal.</p> <p>When in order'to allow a defendant to give evidence of transactions in grain with the plaintiff prior to the transactions alleged to be gambling, the trial court has allowed an adjournment of two days, on the theory that such prior transactions, if illegal, would affect the balance in the defendant’s favor, and at the resumption of the trial the defendant admits that vouchers he seeks to introduce would not change the balance, and the court thereupon excludes the vouchers, the defendant cannot afterwards claim that he did not have a fair opportunity to present his defense.</p> <p>If evidence is excluded and afterwards the court changes its ruling so that it becomes admissible, it is the duty of the party to offer it again, or he cannot complain of the exclusion.</p> <p>Although one ordering grain through brokers for future delivery did not intend to accept delivery, evidence of that intention is immaterial unless it were communicated to the brokers.</p> <p>When it is a question as to whether iertain options for the future delivery of grain were legal or illegal, and both parties move for the direction of a verdict without a request to go to the jury, the court may take the defendant’s testimony most unfavorably to himself in deciding the question, and the court’s conclusion will not be disturbed.</p> <p>The fact that a customer purchasing grain for future delivery gives his broker a note in settlement of his account, is evidence that he conceded that he actually purchased the grain.</p> <p>Although a dishonored promissory note provides for interest at three per cent, the holder may recover six per cent interest as damages thereon fraisa the date of maturity.</p>

Appeal by the defendants, Caroline S. Ward and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Hew York on the 9th day of October, 1905, upon the decision of the court, rendered after a trial at the Hew York Trial Term, the jury having been discharged.

Appeal by the defendant, John J. Slater, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of blew York on the 26th day of April, 1905, upon the decision of the court, rendered after a trial at the ¡New York Special Term, declaring a certain agreement void as against public policy.

<p>Negligence—injury to employee of one contractor on stairway under construction by another contractor — safe place to work — assumption of risk.</p> <p>A contractor engaged in erecting a stairway in a building is not bound to furnish a safe place to work to the employee of another contractor engaged in plastering. Hence, when such employee, instead of erecting a scaffold on which to do his work, uses for that purpose a stairway in the process of construction by another contractor, which is incomplete and not used for travel, he does so at his peril and cannot recover for injuries received by the giving way of an unfinished tread of the stairway. A person cannot be held liable for negligence unless some duty devolved upon him.</p> <p>O’Brien, P. J., dissented, with opinion.</p>

<p>. Appeal by the defendant, Francis Y. Greene, as police commis-. sioner of the city of New York, from an order of the Supreme Oourt, made at the New York Special Term and entered in the office of the clerk of the county of New York on 6th day of March, 1906, directing a taxation of costs in favor of the relator herein.</p>

Appeal by the defendant, Theodore A. Bingham, as police commissioner of the city of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of May, 1906, denying the defendant’s motion to supersede or dismiss an alternative writ of mandamus theretofore granted herein.

Appeal by the defendant, the Glengariffe Realty Company, from so much of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 13th day of January, 1906, as granted to the plaintiff an additional allowance of $750, and also from an order entered in said clerk’s office on the 5th day of February, 1906, denying the said defendant’s motion to modify the aforesaid judgment by reducing such allowance to $200.

<p>Venue — change of place of trial for convenience of witnesses—when answering affidavits defective.</p> <p>When on a motion by the defendant to change the place of trial for the convenience of witnesses, the defendant’s moving affidavits naming nine witnesses are in proper form, but the, plaintiff’s answering affidavits are defective in that they do not give the names, addresses, or occupations of the witnesses (with three exceptions) whose testimony is necessary, but merely mention twelve partnerships without naming the members thereof whose testimony is alleged to be necessary, and are also defective in that it is not stated that the plaintiff is advised by counsel that the testimony of such witnesses is material and necessary, or that the individuals named will swear to any material fact, the place of trial should be changed.</p> <p>The absence in an affidavit of such statement as to advice of counsel is a fatal defect and it cannot prevail over proper allegations by the moving party.</p>

Appeal by the defendants, Charles A. Brassier and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 22d day of March, 1905, upon the decision of the court, rendered after a trial at the Hew York Special Term, overruling the defendants’ demurrer to the complaint.

<p>Appeal by the plaintiff, Frances J. Maerlender, from an interlocutory judgment of the Supreme Court iti favor of the defendant, entered in the office of the clerk of the county of jSTew York on the 26th day of January, 1906, upon the decision of the court, rendered after atrial at the FTew- York Special Term, sustaining the defendant’s demurrer to the complaint herein.</p>

<p>Appeal by the defendant, Samuel K. Ellenbogen, from a judgment of the Supreme Court, rendered on the 29th day of November, 1905, upon the verdict of a jury convicting the defendant of the crime of taking a false oath as to elector’s residence, and also from an order made at the close of the trial, denying the defendant’s motion for a new trial made upon the minutes.</p>

Oebtiobabi issued out of the Supreme Court and attested on the 1st day of August, 1905, directed to John McG-aw Woodbury, commissioner of the department of street cleaning of the city of Mew York, requiring him to certify and return to the office of the clerk of the county of Mew York all and singular his proceedings had concerning the dismissal of the relator from the department of ' street cleaning of the city of Mew York.

<p>Appeal by the defendants, Peter F. Collier and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 7th day of February, 1906, denying the defendants’ motion for a bill of particulars.</p>

<p>.Trust — bank deposit in trust for another—facts insufficient to raise presumption of trust.</p> <p>A deposit by one person of bis own money in his own name as trustee for another does not establish an irrevocable trust during the lifetime of the depositor. It is a tentative trust revocable at will until the depositor dies or completes the gift in his lifetime by some unequivocal act or declaration, such as a delivery of the passbook or notice to the beneficiary. If the depositor dies before the beneficiary, without revocation or definite act of disaffirmance, the presumption arises that an absolute trust was created as to the balance on hand at the death of the depositor.</p> <p>But when one deposits money in a bank in his own name “in trust for Johanna Sheedy,"' a sister, who thirty years before had married and was known to the depositor as Johanna Dwyer, who had no knowledge that such an account was opened, and who died before the depositor, he exercising sole dominion over the account, and drawing the interest thereon before and after her death, there is no presumption that a trust was created in favor of said Johanna Dwyer or her estate, although the depositor died without changing the account.</p> <p>.On the contrary, the presumption arises that the account was so kept for ulterior motives.</p>

Appeal by the defendants, George F. Titus and others, from an order of the Supreme Court, made at the ISTew York Special Term and entered in the office of the clerk of the county of Yew York on the 21st day of April, 1906, granting the plaintiff’s motion for a retaxation of costs.

Appeal by the Wm. Radam Microbe Killer Company from certain portions of an order made at the Kew York Special Term, bearing date the 23d day of February, 1906, and entered in the office of the clerk of the county of Hew York, appointing a substituted trustee, and also from an order, hearing date the 23d day of April, 1906, and entered in said clerk’s office, denying the appellant’s motion to resettle the aforesaid order.

Appeal hy William E. Gordon, as executor aud beneficiary under the will of Leonard J. Gordon, deceased, and others, from an order of the Surrogate’s Court of the county of Mew York, entered in said Surrogate’s Court on the 31st day of January, 1906, confirming the report of the appraisers appraising the estate of Leonard J. Gordon, deceased, .subject to taxation in the State of Mew York.

Appeal by the plaintiff, Jacob Bichman, 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 81st day of May, 1906, denying the plaintiff’s motion to continue pendente lite an injunction theretofore granted herein restraining the defendant from discontinuing, cutting off or refusing to continue to supply the plaintiff with gas at the premises No. 484 Sixth avenue, borough of Manhattan,…

Appeal by the defendant, the Consolidated Gas Company of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of June, 1906, enjoining the defendant pendente lite from cutting off plaintiff’s supply of gas at certain named premises.

<p>Transfer tax on property of non-resident—jurisdiction of surrogate — when assessment of lands excessive.</p> <p>When a non-resident dies without the State, leaving personal property in one county of this State, the surrogate of that county has exclusive jurisdiction to assess a transfer tax thereon; but when the personal property is within two or more counties the surrogates of those counties have concurrent jurisdiction.</p> <p>When a non-resident dies owning stock of several domestic corporations whose principal places of business are iu different counties, such stock is, within the meaning of subdivision 3 of section 2476 of the Code of Civil Procedure, property within that county where the corporate property is or where the corporation has its principal place of business; and if a petition for letters testamentary or for letters of administration has not been filed in any other county, the surrogate of such county has jurisdiction to assess a transfer tax on the stock situated in all the counties, by virtue of section 229 "of the Tax Law and section 2477 of the Code of Civil Procedure.</p> <p>In assessing real estate for a transfer tax, the best price that the devisee could obtain. for it by diligent effort should control over mere expert opinion as to its value.</p>

<p>Practice —motion, to set aside judgment one year after entry — moving affidavit insufficient.</p> <p>The Code of Civil Procedure provides that a motion to set aside a final judgment for irregularity shall not be heard after the expiration of one year since the filing of the judgment roll, and a motion to sot aside such judgment on the ground of the misconduct of a juror after the expiration of one year, must be made upon clear proof in order to avoid the effects of the statute.</p> <p>When the moviug affidavit is wholly upon information and belief and does not disclose the sources of information nor the grounds of belief, it is insufficient.</p>

<p>Appeal by tbe defendant, Tbe State of New York, from a judgment of tbe Court of Claims of tbe State of Now York, in favor of tbe claimant, entered in tbe office of tbe clerk of said court on tbe 22d day of May, 1905, for tbe sum of $500.</p>

<p>Appeal by the plaintiff, William W. Finido, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Columbia on the 5th day of December, 1905, upon the decision of the court, rendered after a trial at the Columbia Special Term, sustaining the defendant’s demurrer to the complaint herein.</p> <p>The complaint alleges that there is located within the corporate limits of the defendant village a highway known as Chatham street, which for many years has been maintained by the defendant as a part of its highway system; that for a month or more prior to March 3, 1905, a portion of said street in front of the premises of the Valatie Knitting Company had been wholly obstructed by ice and snow, -which rendered said street impassable for vehicles; that the defendant had been repeatedly notified of such obstruction and that the street was impassable by reason thereof and it had been requested to remove the same, but it negligently allowed such accumulation of ice and snow to remain and negligently refused to remove the same and make the street passable; that by reason of such obstruction and continuously for the time mentioned persons traveling with vehicles on said Chatham street left said street at the place where the same was impassable and traveled around such obstruction and impassable portion of the street over the property of the Valatie Knitting Company and used the property of said knitting company as a highway for such a distance as w¡is necessary to avoid such obstruction and had so continuously used it as a highway for a month or more prior to, March 3, 1905, with the full knowledge of the defendant; that on the day mentioned the plaintiff traveled with his horse and wagon over the- property of the knitting company which Avas temporarily used as a higlway as aforesaid and returned after dark on the evening of the same day ; that intermediate the time Avhen he first traveled over the property of the knitting company as aforesaid and his return the knitting company had placed a box or other obstruction in such temporary Avay over its property with Avliich box or obstruction the plaintiff collided and was injured; that prior to the time when plaintiff was in jured the knitting company had duly notified the defendant that said knitting company Avas about to place said obstruction on its said property at the place Avhere the same was being used as a highway, and that the defendant did not remove the same' or place any light or other Avarning at or about said place for the protection of travelers on Chatham street or said highway on the property of said knitting company; and that the injury of plaintiff was caused by the negligence of the defendant and its officers and without negligence on the part of the plaintiff who did not know of the obstruction to the temporary way and who by reason of the darkness was unable to observe and avoid the same. The defendant by demurrer challenges this complaint on the ground that it does not state facts sufficient to .constitute a cause of action.</p>

Appeal by the plaintiff, the Chamberlain Medicine Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Broome on the 20th day of ¡November, 1905, upon a decision of the court, dismissing the complaint on the merits, after a trial at the Broome Trial Term, a jury having been discharged.

<p>Attorney and. client — prosecution of action for separation on contingent fee — no lien when parties are reconciled — collusion immaterial.</p> <p>An agreement by a wife to compensate her attorney for services in prosecuting an action for separation by giving him a percentage of the alimony recovered is void as against public policy</p> <p>Although the reasonable value of the services of an attorney mgy he the same as his percentage under such void contract on a sum of money which, pending the litigation, the husband agreed to pay to his wife in lieu of alimony, he has no lien on the sum agreed to be paid by the husband when the parties are reconciled and discontinue the action. This because an attorney can have no lien on property on which his client has no claim and the reconciliation of the parties was a complete bar to a decree of separation.</p> <p>Even though such reconciliation he collusive and designed to deprive the attorney of his claim, he cannot assert a lien.</p>

<p>Appeal by the plaintiff, John McRavy, from a judgment of the County Court of Tompkins county in favor of the defendant, entered in the office of the clerk of the county of Tompkins on the 12th day of October, 1905, pursuant to an order of said County Court entered in said clerk’s office on the 6th day of October, 1905, reversing a judgment of a justice of the peace, and also from the said order directing’ the entry of the judgment appealed from._</p>

<p>Certiorari issued out of the Supreme Court and attested on the 6th day of July, 1900, directed to William J. Morgan, as Comptroller of the State of Mew York, requiring- him to certify and return to the office of the clerk of the county of Albany all and singular the proceedings had in relation to the tax imposed upon the relator for the year ending October 31, 1898.</p>

Appeal by the plaintiff, Gordon Ryan, as administrator, etc., of Frederick Ryan, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Washington on the 23d day of March, 1900, upon the dismissal of the complaint by direction of the court after a trial at the Washington Trial Term. The defendant operates a single-track steam railroad north of Whitehall.

<p>Appeal by the plaintiff, William Walsh, as administrator, etc., of Mary Walsh, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Montgomery on the 11th day of January, 1906, upon the dismissal of tlie complaint by direction of the court after a trial at the Montgomery Trial Term.</p> <p>The plaintiff’s intestate was killed by one of the defendant’s electric cars while she was attempting to cross the track of the defendant at a grade crossing. At the place of the accident the defendant operates a double-track electric railroad extending in an easterly and westerly direction and which is crossed at right angles by a highway. The deceased was driving southerly in a carriage and was killed by a car coming from the west on the southerly track. She was seated alone in the carriage with the top up and side curtains in place. The carriage was struck behind the forward wheel, the horse being entirely uninjured. The car was proceeding at the rate of thirty miles an hour and gave no warning signal of its approach until the moment of collision. The trial court dismissed the complaint because there was no evidence that the deceased was free from contributory negligence.</p>

<p>Appeal by the defendant, the United Traction Company, from a judgment of the Supreme Court .in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the lltli day of January, 1906, upon the verdict of a jury for $450, and also from an order entered in said clerk’s office on the 20tli day of January, 1906, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>Plaintiff, the driver of a mail wagon for the United States government, was on July 10, 1905, in the performance of his duties proceeding from the union railway station in the city of Troy along Broadway to the post office in said city. Broadway extends in an easterly and westerly direction and is crossed at right angles by Union street. The defendant operates a single-track railroad through Broadway west of Union street turning thence northerly into Union street. To make this turn the road of the defendant is constructed with a reverse curve turning first slightly to the sonth_ érly side of Broadway before reaching Union street and then turn, ing north into Union street so as to clear at a suitable distance the sidewalk at the northwest corner of Broadway and Union street. The plaintiff was proceeding westerly on the south or left-hand side of Broadway. Opposite the track of the defendant where it curves to the south a collision occurred between one of the defendant’s cars and the wagon on which plaintiff was riding and he ivas thrown therefrom and injured. For such injuries he has recovered a verdict because of the defendant’s negligence.</p>

Appeal by the plaintiff, Levi Hayne, from a judgment oí the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Schenectady on the 23d day of January, 190G, upon the dismissal of the complaint by direction of the court after a trial at the Schenectady Trial Term, and also from an order entered in said clerk’s office on the 7th day of February, 1906, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, Pearl Pierson, from a judgment of the. Supreme Court in favor of the 'plaintiff, entered in the office of the clerk of the county of Saratoga on the 9th day of October, 1905, upon the verdict of a jury, rendered by direction of the court after a trial at the Saratoga Trial Term, adjudging that the plaintiff recover from the defendant certain personal property.

Appeal by the .plaintiffs, Silas K. Williams and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Fulton on the 24th day of February, 1906, upon the dismissal of the complaint by direction of the court after a trial at the Fulton Trial Term, and also from an order entered in said clerk’s office on the 12th day of February, 1906, denying the plaintiffs’ motion for a new trial made upon the minutes.

Appeal by the plaintiff, Clifford Boyce, from a judgment of the County Court of Chemung county in favor of the defendant, entered in the office of the clerk of the county of Chemung on the 9th day of March, 1906, pursuant to an order of said County Court entered on the 9th day of March, 1906, reversing a judgment of the City Court' of Elmira.

Appeal by the plaintiff, John Kinney, from a judgment of't-lie Supreme Court in favor of the defendant, entered in the office of the clerk of the county of St. Lawrence on the 26th day of September, 1905, upon the dismissal of the complaint by direction of the court after a trial at the St. Lawrence Trial Term.

Appeal by the defendant, the Municipal Gas Company, from a judgment of the County Court of Albany county in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 8th day of June, 1905, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the ■ 8th day of June, 1905, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiffs, Albert W. Porter and another, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany on the 3d day of March, 1906, upon the decision of the court, rendered after a trial at the Albany Special Term, overruling the plaintiffs’ demurrer to a separate defense in the amended answer.

Appeal by the defendant, Benjamin S. Cowles, from an order of the Supreme Court, made by the county judge of Warren county, and entered in the office of the clerk of the county of Warren on the 25th day of April, 1906.

Appeal by the plaintiff, Alexander Tweedie, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Delaware on the 9 th day of February, 1906, upon the decision of the court, rendered after a trial at the Delaware Trial Term, the jury having been discharged. This action is in replevin to recover a horse. One David H. Hammond and Maggie Hammond, his wife, occupied the plaintiff’s farm as tenants.

Appeal by the defendants, William N. Coler, Sr., 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 Clinton on the 20th day of November, 1905, upon the verdict of a jury for $4,760.29, and also from an order entered in said clerk’s office on the 17tli day of November, 1905, denying the defendants’ motion for a new trial made upon the minutes. The action was tried as one for negligence.

Appeal by the plaintiff, David McDonald, from a judgment of the County Court of Columbia county in favor of the defendant, entered in the office of the clerk of the county of Columbia on the 30th day of December, 1905, reversing a judgment of a justice of the peace.

Appeal by Harriet A. Lockwood, as executrix, etc., of Jordan W. Lockwood, deceased, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county -of Columbia on the 2d day of May, 1906.

Appeal by tbe plaintiff, Ellen Gould, as executrix, etc,, of Libbie A. 'Werner, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in tbe office of the clerk of the county of Albany on tbe 15th day of January, 1906, upon the decision of tbe court rendered after a trial at the Albany Trial Term, tbe case not having been submitted to tbe jury, dismissing the complaint and adjudging tbe defendant Fisher to be tbe owner of a certain policy of life…

Appeal by the defendant, the Village of Whitehall, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Washington on the 28th day of ¡November, 1905, upon the verdict of a jury, and also from an order bearing date the 16th day of October, 1905, denying the defendant’s motion for a new trial made upon the minutes.

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

Appeal by the defendant, Amanda M. Storrs, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, bearing date the 21st day of October, 1905, and entered in the office of the clerk of the county of Essex upon the report of a referee.

Oertiobari issued out of the Supreme Court and attested on the 18th day of August, 1905, directed to the common council of the city of Kingston, Mew York, and others, requiring them to certify and return to the office of the clerk of the county of TJlster all and singular their proceedings had in relation to the laying of sewers and grading in certain streets in the city of Kingston.

Appeal by the plaintiff, The People of the State of New York, from a judgment of the County Court of Rensselaer county in favor of the defendant, entered in the office of the clerk of the county of Rensselaer on the 22d day of December, 1905, upon an order of the said County Court, bearing date the 15th day of December, 1905, and entered in said clerk’s office pursuant to a decision of the court dismissing the complaint and also from the said order upon which the aforesaid…

<p>Appeal by the defendant, the Schenectady Savings Bank, 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 25th day of April, 1905, upon the verdict of a jury rendered after a trial at the Schenectady Trial Term, and also frbm an order made at the close of the trial denying the defendant’s motion for a new trial made upon the minutes.</p> <p>This is an appeal by the defendant from a judgment upon the verdict of a jury, and from an order denying its motion for a new trial upon the minutes of the court. The plaintiff, an old lady who could neither read nor write, deposited with the defendant, about January 3, 1901, $400. This deposit was made by her and her attorney, who was acting for and with her at the time. The rules of the bank, as required by law, were conspicuously posted in the bank and pasted in the depositor’s book which was -given her and signed by her at the time.. The 7th rule provides, “ All payments made to persons presenting any passbook shall be deemed good and valid payments to the owner of the deposit evidenced thereby,” unless notice of the loss or theft of the passbook is given to the bank. The 9th rule provides: “ If the officers of the bank shall doubt the identity of any person presenting a passbook and claiming a deposit, or the right of any one claiming to be' representative of any deceased or other depositor, they may require satisfactory proof and indemnity before paying such deposit or any part thereof.” The defendant has about 17,000 depositors.</p> <p>It is not claimed by the plaintiff that she was ignorant - of these rules or that she did not assent to them. She made several small deposits. The first money drawn by her, fourteen dollars and twelve cents, was about fourteen months after the first deposit. She went to the bank with her niece, Mrs. Haight, presented her book, signed her name by making a mark, which was the manner in which she indicated her checks would be signed in the signature book at the bank when she made the deposit, and Mrs. Haight witnessed the signature. This money was paid by her to Mrs. Haight at the time. About May 5, 1903, her book was with her then attorney, Mr. Sanders, in his safe. She gave a tliirty-dollar check to her physician, had Mrs. Haight witness it, and told him to go and get the book from Mr. Sanders and take it to the bank. This was done, the money withdrawn, and the book was by him returned to Mr. Sanders. No other moneys were withdrawn from this account until June 6, 1903, and from that time to December 4, 1904, nine different checks were drawn, purporting to be signed by the plaintiff’s mark, payable to the order of Mrs. Haight, witnessed by her husband, and Mi’s. Haight presented the book to the bank and drew the moneys therefrom. The entire amount drawn upon these last nine checks was $524163. The plaintiff has recovered from the bank that sum, with interest, upon the theory that the book was presented without her knowledge and the checks were not signed or. authorized by her, and that the bank was guilty of negligence. The attorney, who had the book in his office, swears that the plaintiff told him to deliver the book to the doctor or the Haights, and that after-wards he told the plaintiff that he had delivered the book to them. She does not definitely deny that she told him he might so deliver the book, but has no recollection of his having told her that he had delivered it to them. Upon this point she says: “ I cannot remember that Mr. Sanders came up or drove up to Mr. Haight’s house while I was staying there and tell me that he had given my bank book to the Haight's; I cannot remember; that is all that I can say; I do not know as 1 would remember if he had told me he had given the book to the Haights.”</p>

Appeal by the defendant, the Union 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 Fulton on the 10th day of May, 1905, upon the decision of the court rendered after a trial at the Fulton Trial Term, a jury having been waived. This is an appeal by the defendant from a judgment in favor of the plaintiff, upon a trial before the court.

<p>Appeal by the defendants, Bose O’Eeill 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 Sullivan on the 15th day of August, 1904, upon the decision of the court, rendered after a trial at the Sullivan Trial Term, the jury having been discharged, granting the plaintiff’s motion for a partition of certain premises.</p>

Cebtioeabi issued out of the Supreme Court and attested on the 26th day of August, 1905, directed to William B. Yoorliies, supervisor, and others, composing the town board of the town of Rockland, requiring them to certify and return to the office of the clerk of the county of Sullivan all and singular their proceedings had in relation to their refusal to audit the claim of the United Construction Company.

Certiorari issued out of the Supreme Court and attested on the 3d day of February, 1906, directed to The Common Council of the City of Troy.and others, requiring them to certify and return to the office of the clerk of the county of Rensselaer all and singular their proceedings had in relation to the designation of official newspapers for the city of Troy.

Appeal by the plaintiff, Edmund Gr. Dawson, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Saratoga on the 15th day of February, 1906, upon the dismissal of the complaint by direction of the court after a trial at the Saratoga Trial Term. This is an appeal from a judgment dismissing the plaintiff’s qomplaint upon his opening the cash to the jury.

Appeal by the defendant, Henry S. Orispell, from certain portions of a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Ulster on the 7th day of December, 1905, upon the report of a referee appointed in proceedings for a copartnership accounting.

Appeal by the plaintiff, the Fuller Buggy Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany on the 15th day of November, 1905, upon the dismissal of the complaint by direction of the court after a trial at the Albany Trial Term.

Appeal by the defendant, William J. O’Brien, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the cleric of the county of Rensselaer on the 5th day of March, 1906, upon the decision of the court rendered after a trial before the court without a jury at the Rensselaer Trial Term. The plaintiffs are copartners dealing in bristle in the city of New York. Defendant is a brush manufacturer in the city of Troy.

<p>Attorney — conversion of client’s money — disbarment. •</p> <p>Evidence taken in a proceeding to disbar an attorney for converting legacies collected for bis clients considered and respondent disbarred.</p>

Appeal by Leo Schlesinger, as receiver of The Federal Bank of New York, and others, 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 16th day of May, 1906, as modifies the report of a referee by reducing the compensation allowed to the receiver’s attorneys from $20,000 to $15,000.

Appeal by the petitioner, Ella M. Cable, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the comity of New York on the 17th day of April, 1906, denying the petitioner’s motion to restrain Henry W. Sackett and others from taking any further proceedings on her behalf.

Appeal by the. defendant, Elmer E. Smathers, from an order of the Siqireme 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 June, 1906. Action to recover a gold cup, alleged to have been obtained by defendant through a conspiracy to drug “ Lou Dillon ” so that the defendant’s horse, “Major Delmar,” would win in a certain trotting race.

Appeal by the defendant, the Mutual Reserve Life Insurance 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 31st day of May, 1906, directing “ that the defendant give to the plaintiff a discovery and inspection and permission to take copies of all the records described in said petition, including the certifícate book or books of record containing a record of all business…

<p>Municipal corporation — motion for approval of plans for subways in city of New York-—public welfare considered by.the court—plans which shall be contracted for within two years approved.</p> <p>The Appellate Division, on a motion to confirm the reports of the rapid transit commissioners of the city of New York as to whether the plans of subway routes should he approved against the consent of property owners, will take into consideration the financial ability of the city to carry out the proposed plans in the near future, the financial needs of other municipal works, the probability of better methods of rapid transit developing in the future, and the fact that the approval of plans which may not be carried out for years to come may impede the development of private property along the proposed routes.</p> <p>When the plans submitted for approval include nineteen lines of subway at a total cost of 8450,000,000, while the total present yearly borrowing margin of the city under the Constitution is at most 8110,000,000, and there is no probability that all the lines can he built in the near future, and the effect of an unconditional approval of the plans will be to estop the court for all time from exercising its duty to protect the complex and changing interests of the city, the court will refuse an unconditional approval.</p> <p>On the foregoing considerations the court approves all the plans upon the condition that the rapid transit commissioners decide within two years which of the lines they will construct, the approval to be null and void as to all lines not selected and contracted for within two years, with the right in the commissioners at a future time to renew the application for approval of other lines if able to construct them.</p> <p>The court will not annex as a condition to such approval that the commissioners file a stipulation to incorporate into the contract for construction a clause making the contractor and his sureties liable for damages to foundations, etc., as the statute provides for a public hearing as to the terms and conditions of the contract, and for the consent of the board of estimate and apportionment thereto.</p>

<p>Motion to dismiss the appeal herein.</p>

Appeal by the defendant, Elias L. FI. Bristol, from an interlocutory 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 New York on the 30th day of June, 1905, upon the decision of the court, rendered after a trial at the New York Special s Term, determining the rights of the parties in an action for the partition of certain real estate.

<p>Benefit insurance—rules of society as to change of beneficiary construed —when wife takes instead of father originally designated.</p> <p>A benefit insurance issued by the Knights of Columbus, the rules of which provide that on the death of a member the benefit shall be paid to'such person or persons of the “immediate family of the member as by him designated,” is governed by the rules of the society. Although one, who became a member at a time when he was unmarried, designated his father with whom he was then living as his beneficiary if a “lawful beneficiary” at the time of his death, on his subsequent marriage and establishment of an independent household bis wife became his “immediate family” within the meaning of said rule, and she is entitled to the benefit upon his death, even though the original designation of the father remains unchanged.</p> <p>The “immediate family ” of the member is to be determined at Iris death, and not at the beginning of his membership.</p>

Appeal by the plaintiff, Bernhard Freund, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the cleric of the county of New York on the 11th day of April, 1905, upon the decision of the court rendered after a trial at the New York Special Term dismissing the complaint upon the merits.

<p>Attachment against property of non-resident served by publication — when levy insufficient to support entry of judgment — when title to deceased wife’s personalty vests in husband — title to deposit made by husband as administrator.</p> <p>When a summons is served upon a non-resident by publication no judgment can he entered against him on default for failure to appear unless a levy has been made under an attachment against his property.</p> <p>When a married woman owning a separate estate dies without descendants and without having disposed of her property dzzring her lifetime or by will the title to her pei'sonal property vests in her husband jure mariti irrespective of administration on her estate. Thus, the wife’s money deposited in a hank vests in her husband zznder such circumstances although the deposit is made by him as her administrator, and it is subject to attachment on a judgment against him.</p> <p>But when such money is deposited in the name of the husband as his wife’s administrator and can only be drawn on a check countersigned by a third person, the notice of attachznent served on the officers of the hank must point out the property sought to he attached and show that the defendant is the real owner thereof by operation of law, or the officers of the hank are justified in refusing to recognize the levy and the same is insufficient.</p> <p>A judgment against a non-resident entered ozi his default in appearing after service by publication will he opened because of such insufficient levy.</p> <p>The fact that verbal information as to the money sought to he attached was given to the officers of the bank is immaterial as they are not required to look further than the wzitten notice of attachment.</p>

<p>Appeal by the plaintiff, Agnes E. Killian, 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 27th day of June, 1905, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits.</p>

Appeal by the defendant, George W. Wells, 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 23d day of March, 1906, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the said defendant’s demurrer to the complaint.

<p>Corporation.— action by foreign corporation barred by failure to pay license for authority to do business — rights of assignee of corporation — payment of fee between time of service of complaint and answer.</p> <p>The assignee of a foreign corporation stands in no better position than the corporation itself, and when such corporation has been authorized to do business in ■ this State and is liable to pay a license fee under section 181 of the Tax Law, neither it nor its assignee can maintain an action upon a contract made in this State if such fee had not been paid when the action was commenced, and if the defense be taken by demurrer or answer.</p> <p>Such action is barred even though the fee is paid by the corporation at a time between the service of the complaint and answer.</p> <p>Houghton, J., and O’Brien, P. J., dissented, with opinion.</p>

Appeal by the defendant, James H. Langley, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, rendered oil the 13th day of February, 1906, convicting the defendant of the crime of grand larceny in the second degree, and also from an order made at the close of the trial denying the defendant’s motion for a new trial and in arrest of judgment.

Appeal by the defendant, Henry Reiss, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, rendered on the 19th day of May, 1905, convicting the defendant of the crime of grand larceny in the second degree, and also from an order denying the defendant’s motion for a new trial and in arrest of judgment.

<p>Appeal by the defendant, Robert H. Arkenbürgh, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of tlie county of New York on the 19th day of April, 1906, denying the defendant’s motion to vacate upon the papers upon which it was granted an order made herein pursuant to the provisions of section 708 of the Code of Civil Procedure directing the sheriff of the county of New York “ to sell under the execution that has issued herein and at public auction the remaining portion of the personal property attached herein. * * * TJpon the sale of such property the judgment obtained in an action in the Supreme Court, New York County, wherein Thomas J. Dunn, as sheriff, etc., were plaintiffs, and the excutors of the estate of Robert H. Arkenburgh, deceased, were defendants, entered in the office of the clerk of the county of New York, on May 4th, 1899, shall be sold, together with the items contained in said judgment, which represented moneys heretofore found due to Robert H. Arkenburgh, as legatee or otherwise of the estate of Robert H. Arkenburgh, deceased, by the- Surrogate’s Court of Rockland county, and that all of the above-mentioned property shall be sold as one item and the interest of the said Robert H. Arkenburgh, as legatee or otherwise, in the estate of Robert H. Arkenburgh, deceased, over and above the items above mentioned shall be sold separately and as one item.”</p> <p>The plaintiff showed by his petition upon which the order was granted all the proceedings in the action extending over a period of about thirteen years, and among others that on the 2d day of January, 1893, a warrant of attachment was issued herein and delivered to the sheriff of the county of Mew York, who levied under it on certain real estate and personal property in said county belonging to the defendant; that the personal property so levied on consisted of the defendant’s interest as legatee or otherwise in the estate of Robert H. Arlcenburgh, deceased, and that the attachment was made by serving the writ and notice on Eliza J. Arkenburgh, executrix of the estate, who is also mother to the defendant, and she returned a certificate stating that the defendant’s interest in the estate could not be determined until an accounting of the estate could be had; that the real estate levied upon consisted of property situate on Sixty-seventh street in the city of New York; that the defendant did not appear in the action, but demanded notice of any reference or writ of inquiry that might be granted; that the plaintiff duly recovered a judgment in the action for §10,137.91, and execution thereon was duly issued on the 5th day of August, 1896, to the sheriff of the county of Mew York “directing him to satisfy" said judgment out of the personal property attached and if that should be insufficient, then out of the real property so attached; ” that the execution had not been returned and that sufficient moneys had not been collected to pay it. The petition further shows that the sheriff appeared in a proceeding for the judicial settlement of the Arkenburgh estate by the surrogate of Rockland county on the 21st day of December, 1893, for the purpose of reducing to possession the attached personal property of the defendant and requested that the surrogate direct that the moneys found to be due to said Robert H. Arkenburgli, the defendant, be paid to him to apply on the execution; that the surrogate found that the sum of $2,347.26 was due to the defendant from the estate on the 30th day of December, 1895, but refused to decree that it be paid to the sheriff, upon the ground that he had no jurisdiction since the executrix claimed it under an assignment from defendant and in the decree advised the sheriff to seek a court of competent jurisdiction to decide whether the interest of said Robert H. Arkenburgli was payable to the sheriff under the attachment, or to the executrix pursuant to the assignment, and that the executrix refused to pay over the amount thus found due to the defendant. The decree of the surrogate recited that the share and interest of Robert H. Arkenburgli was claimed by the sheriff under the warrant of attachment and by Eliza J. Arkenburgli, executrix, under an assignment, and directed that the amount due be retained by the executors until the rights of the parties entitled to the same “ shall have been determined by a court of competent jurisdiction.” The surrogate held, upon the authority of Matter of Redfield (71 Hun, 344) that he was without jurisdiction to determine these conflicting claims, and this ruling was sustained on appeal. (Matter of Arkenburgh, 13 Misc. Rep. 757; 38 App. Div. 475.)</p> <p>The petition further shows that thereafter and on the 11th day of [November, 1898, the plaintiff herein and the sheriff together instituted an action in aid of said attachment, pursuant to sections 655 and 677 of the Code of Civil Procedure, against the executors of the Arkenburgli estate, which action finally resulted in a judgment in favor of the sheriff on the 4tli day of May, 1899, for the sum of $5,269.56, the amount then due to the defendant from the estate, which judgment was affirmed by the Appellate Division (Dunn v. Arkenburgh, 48 App. Div. 521), and by the Court of Appeals (165 N. Y. 669); that in April, 1900, leave to issue execution on that judgment was obtained from the surrogate of Rock-land county and that execution was issued to the coroner of the city and county of Hew York where the funds of the estate were on deposit; that on the 5th day of May, 1900, the sheriff instituted proceedings supplementary to tlie last execution, and on the seventeenth day of the same month lie-secured an order — presumably from the Supreme Court, although the fact is not stated — permitting the Fanners’ Loan and Trust Company to pay from the moneys on hand belonging to the estate sufficient to satisfy the execution, but that on an appeal therefrom the executrix obtained a stay of proceedings from July, 1900, until November, 1904; that .immediately after, the expiration of the stay the sheriff procured the appointment of a receiver in the proceedings supplementary to execution, and an action was begun by the receiver against the Farmers’ Loan and Trust Company to recover the amount which i was permitted by the order to pay over; that in the last-mentioned action the executors of the estate were substituted as defendants, and a demurrer interposed by them to the supplemental complaint was overruled at Special Term, but on appeal the interlocutory judgment was reversed and final judgment was directed, dismissing the complaint on the ground that there was no authority to reach the funds of an estate by proceedings supplementary to execution (Jones v. Arkenburgh, 112 App. Div. 483).</p> <p>The petition further shows that prior to the proceedings herein outlined and on the 17th day of May, 1902, the surrogate of Noclcland county made an order directing the executor and executrix to join in paying the coroners of the county of New Fork sufficient moneys to satisfy the execution issued to them, but “ the said executrix refused to comply with said order, and the sheriff and plaintiff have been unable to enforce it.”</p> <p>Tire plaintiff further shows that unless he is permitted to sell and dispose of the judgment in aid of the attachment and the remaining claim of the defendant against the estate levied upon under the attachment, which is necessary before the real estate attached can be sold, he will lose the lien of his judgment which expires on the • 19tli day of May, 1906, and that his attachment will be valueless. The petitioner also presents the affidavit of the deputy sheriff, showing that he had had charge of the warrant of attachment and the execution heretofore issued herein and on information and belief “ that the sheriff has used due diligence ih endeavoring to collect the personal property described in the affidavit ” of the petitioner, “ but that none of the personal property levied upon has been collected and that all of said property is now uncollected,” and that the sources of his information and the grounds of his belief are the records in the sheriff’s office, the papers in the action, the affidavit of the petitioner, and all the records of the various actions and appeals therein. An affidavit of the present sheriff is also presented, tending tó show that he has exercised due diligence in endeavoring to collect the debts and other things in action attached; but his affidavit is made upon information and belief and the sources of his information and the grounds of his belief are substantially the same as those set forth in the affidavit of the deputy.</p>

Appeal by the defendant, Helen Davies Lanpher, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 12th day of December, 1905, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 14th day of December, 1905, denying the said defendant’s motion for a new trial made upon the minutes.

<p>Mechanic’s lien — when owner not liable to sub-contractor for advance payments made to contractor — good faith — when no inchoate lien.</p> <p>Section 7 of the Mechanics’ Lien Law, providing that payments to á contractor made prior to the time they became due under the contract, for the purpose of avoiding the provisions of the law, shall be of no effect against the lien of a sub-contractor created before the payment became due, does not require that such advance payments be excluded in determining the sum due the contractor, unless made in bad faith for the purpose of avoiding the provisions of the Lien Law.</p> <p>The burden of showing that such advance payments were made in bad faith is on the sub-contractor, and when it is shown that the owner was ignorant of the claims of the sub-contractor when he made the advance payments, such payments should not be deducted in figuring the sum due the contractor to which the sub-contractor’s lien attaches.</p> <p>The doctrine that a sub-contractor by doing work acquires an inchoate lien which is perfected by the filing of the lien applies only as against an assignee for the benefit of the creditors of the contractor or his trustee in bankruptcy.</p>

Appeal by the defendant, Hpnry Puvogel, 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 27th day of June, 1905, overruling the said defendant’s exceptions to the report of a referee didy appointed “ to hear and determine the issues raised by the pleadings herein, to take and state the account of Henry Puvogel of all copartnership dealings, * * * and to report what, if any thing, shall appear…

<p>Appeal by the plaintiff, Madison Grant, from an order of the Supreme Court, made at the New York Special Term, and entered in the office of the clerk of the county of New York on the 22d day of March, 1906, enjoining the plaintiff from proceeding with the prosecution of this action.</p>

<p>Attorney and client — summary jurisdiction to determine and enforce attorney’s lien — when same not exercised — power of referee — costs.</p> <p>Although apart from an attorney’s statutory lien on his client’s cause of action he has also a common-law lien upon papers, securities or other property delivered to him by his client irrespective of any action pending, and the court may determine and enforce either the statutory or common-law lien on the motion of either attorney or client, yet it seems that this summary remedy will be exercised only when the relation of an attorney to his client is professional in character, and not when the attorney is acting as a mere business agent for another. In such case a claim against the attorney should be enforced by action.</p> <p>When the court does assume such summary jurisdiction, a referee to whom the matter is sent should not be empowered to “ hear and determine," but only to take the evidence and report the same, with his opinion.</p> <p>A client should not be required to give an undertaking to pay the costs of such reference.</p>

Appeal by the defendant, Arthur B. Proal, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 15th day of June, 1905, upon the verdict of a jury for $1,750, and also from an order entered in said clerk’s office on the 10th day of October, 1905, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Jacob M. Birnbaum, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, rendered on the 27th day of June, 1904, convicting the defendant of the crime of grand .larceny in the second degree, and also from an order bearing date the 5th day of July, 1905, and entered in the office of the clerk of said court, denying the defendant’s motion for a new trial.

<p>Negligence — infant struck by freight train — exclusion of evidence explaining failure to operate gates — verdict against weight of evidence.</p> <p>The duty of a railroad company to maintain its gates at highway crossings in working condition is not absolute but is discharged, as in the case ef other signals, by the exercise of reasonable care in construction and inspection.</p> <p>In an action to recover for an injury received by an infant who was struck by a freight train at a highway crossing, where the plaintiff alleges that the gates were not lowered, that no flagman was on hand, and that no signals were given by the approaching train, it is reversible' error to exclude explanatory evidence showing that ice had formed on the gates so that they could not be operated, and that at the time of the accident the ice was being removed, when the defendant has given evidence rebutting the other charges of negligence.</p> <p>When the testimony of three witnesses for the plaintiff that the accident occurred on the highway is contradicted by the testimony of seventeen witnesses,- most of them disinterested, that it occurred on defendant’s right of way some distance from the crossing, a verdict for plaintiff is against the weight of evidence.</p>

<p>Appeal by the defendants, William A. Clark and others, from an order of the Supreme Court, made at the ¡New York Special Term, hearing date the 15th day of December, 1904, and entered in the office of the clerk of the county of ¡New York, denying the said defendants’ motion for leave to renew a motion to be allowed to amend their answers, and also an appeal by the same defendants, except Henry G-. Atwater, from a judgment of the Supreme Court in favor of the plaintiff, bearing date the 16th day of ¡February, 1905, and entered in said clerk’s office, upon the decision of the court rendered after a trial at the ¡New York Special Term.</p> <p>This is an action for the redemption of a certificate of stock alleged to have been sold, without authority, by the pledgee thereof. The evidence shows, and the trial court found in substance, among other things, that on the 7th day of March, 1888, the plaintiff was the owner of certificate Mo. 311, representing 100 shares of stock in the defendant, the United Verde Copper Company, a corporation organized under the laws of the State of Mew York, bearing date the 5th day of June, 1884, issued and then standing on the books of the company in his name; that the plaintiff was then sojourning in London, England, and was indebted to one Edward Bennett, a grocer, for merchandise, and desiring further credit delivered the certificate of stock to one Charles E. Thomas, the manager of the grocery business, for the purpose of securing the existing and any subsequent indebtedness to said Bennett; that before delivering the certificate, plaintiff wrote his name upon the back thereof, just under the first line of the printed form of a power of attorney, in the blank space left for filling in a recital of the name of the person executing the power of attorney, but he did not sign at the end or fill in the blank at the end for the date of execution or have his signature witnessed as provided on the printed form opposite the blank for the signature of the person executing the assignment or power of attorney; and that this did not constitute a written assignment of the certificate or of á power of attorney in blank, or otherwise, authorizing any other person to assign it; that the certificate was then of small value; that Bennett left the certificate in the possession of Thomas whom he held to be personally liable to him for plaintiff’s indebtedness ; that plaintiff was at the date of the trial still indebted to Bennett or his personal representatives on the account, together with interest, in the sum of $489.59; that after the deposit of the certificate as such security a dispute arose between the plaintiff, Bennett and Thomas as to the amount of his indebtedness, and the amount thereof remained in dispute until the date of the trial of this action ; that in the year 1889 Thomas left Bennett’s employ, and, without the knowledge or consent of plaintiff, took the certificate with him ; that plaintiff has not been given notice in any maimer that the stock would be sold to pay the indebtedness or that Bennett’s lien thereon would be foreclosed; that in January, 1893, Thomas sold the certificate to the defendant Burgess and wrote his name, upon the back in the blank power of attorney, not at the end, however, but in the blank left for filling in the name of the person to be designated as the attorney, which the court found did not constitute an assignment in writing or the execution of a power of attorney in blank or otherwise authorizing any other person to assign the certificate in blank or otherwise.; that thereafter, and in June, 1893 Burgess sold and delivered the certificate to the defendant Clark for $300, and in making the sale and delivery wrote his name upon the back of the certificate in the printed power of attorney in the blank space intended for filling in the name of the transferee, which the court found and held did not constitute an assignment in writing, or power of sale in blank or otherwise, authorizing any other person to assign the certificate; that “in consequence of the apparent and obvious insufficiency and irregularity- of the indorsements of said certificate, at the'request of the defendant Clark, the defendant Charles E. Thomas, on June 22,1893, executed a formal assignment of the said certificate, together with all dividends thereon, to the defendant John De Witt Burgess, and on the same day, at like request, the defendant John De Witt Burgess executed a formal assignment of said certificate of stock with all dividends thereon to the defendant William A. Clark; ” that on said 22d day of ' June, 1893, plaintiff was first notified that the certificate had come into the possession of the defendant Clark, and did not know until that time that Bennett or Thomas had parted -with or sold or attempted to sell it'; that on said last-mentioned day the plaintiff was requested, in behalf of the defendant Clark, to execute a formal assignment to him, which request -was declined, and the defendant Clark was notified that the certificate had been deposited with Bennett as pledgee, and that plaintiff had received no notice of sale and had not consented to a sale thereof ; that “until said June 22, 1893, the defendant Clark had no knowledge, notice or information that plaintiff had parted with said certificate only as a pledge to secure an indebtedness to said Bennett, nor had said Clark until said date any knowledge, information or notice how said certificate had come into the possession of the said Charles E. Thomas.;” that in August, 1893, plaintiff personally notified the defendant Clark that he was the owner of the certificate of stock and of the facts concerning the pledge thereof, and demanded delivery to him which was refused, and on the 16th day of the same month, the plaintiff notified the defendant Clark and the United Verde Copper Company, in writing, that he was the owner of the certificate and demanded possession thereof and forebade them to recognize any one else as owner or to transfer it; that notwithstanding the notice and demand, the company recognized the defendant Clark as owner, and on the 16th day of September, 1893, accepted a surrender of the certificate by the defendant Clark, transferred the stock on its books to his name and issued to him in his name a new certificate, Vo. 542, therefor, and thereafter the defendant Clark, claiming to be the owner, collected and received the dividends declared and paid thereon; that in 1899 the Vew York corporation was lawfully dissolved, and its property became vested in its directors under section 57 of the Stock Corporation Law,* and pursuant to a reorganization plan on the 2d day of September, 1899, the United Verde Copper Company of West Virginia was incorporated under the laws of West Virginia in the interests of the former stockholders of the Vew York corporation, and on the 9th day of January, 1900, the defendant Clark exchanged said certificate Vo. 542 for a certificate representing 100 shares in the new corporation, and a debenture bond for $1,000 issued by it, and still holds them, claiming ownership, and has collected dividends and interest thereon ; that the value of the 100 shares in the West Virginia corporation at the date of the tidal was $30,000, and of the bond was $1,000 ; that the defendant' Clark received dividends on said certificate Vo. 542 aggregating $2,125, which with interest at the date of the trial aggregated $2,960.96, and from the West Virginia corporation on the stock $4,125, which with interest aggregated $4,878.24 and $189.55 interest on the bond, which with interest amounted to $216.18; that the $300 paid by the defendant Clark, with interest from January 1, 1893, to the date of the trial aggregated $508.10. The court found as conclusions of law that -the plaintiff was entitled to redeem the certificate of stock in the Vew York corporation and the stock and bond of the West Virginia corporation issued in exchange therefor, as against Bennett and his estate and all defendants, on paying the amount of the indebtedness to secure which it was pledged, aggregating at the time of the trial $489.59; .that plaintiff was entitled to recover from the defendant Clark the certificate representing 100 shares of stock in the West Virginia corporation and the debenture bond, and that if the defendant Clark failed to deliver them within a time to be fixed in the judgment the plaintiff was_entitled to. recover .from him the sum of $31,000, the value thereof; that the moneys received by the defendant Clark on account of the stock and bond, with interest, aggregating at the time of the trial $8,054.48, belongs to 'the plaintiff, and that he is entitled to recover that sum, less the amount due Bennett, which was directed to be deducted and paid to the public administrator, as administrator of said Bennett, deceased, 'and the $508.10, representing the amount Clark paid for the stock and interest thereon, leaving a balance of $7,056.79, for which judgment was awarded in favor of plaintiff, with interest from December 22, 1904; that plaintiff was entitled to receive and collect the dividends and interest on the stock and bond after December 3, 1904, and to a judgment for costs. Judgment was entered in accordance with the decision.</p> <p>On the 3d day of November, 1904, the appellants moved to amend their answer so as to deny the plaintiff’s residence in the State of New York and to plead the Statute of Limitations of the State of Montana and want of jurisdiction in this court. The motion was denied apparently upon the ground that no affidavit was made by the defendant Clark and that sufficient excuse for the delay in making the motion had not been shown. On the 1st day of December, 1904, appellants moved upon the same and additional affidavits, including an affidavit of the defendant Clark and the proposed amended answer, for leave to renew the former motion and to serve the proposed answer. The court was presided over by the same justice who presided when the original motion was made and the motion was again denied.</p> <p>It is stated that an appeal was taken from that order to this court and that the appeal was dismissed. The present record contains the notice of appeal from the last order and the notice of appeal from the judgment gives notice that the appellants also intend to review the order.</p>

Appeal by the petitioner, Patrick W. Cullinan, as State Commissioner of Excise of the State of New York, from an order of the Supreme Court, made at tlie New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of February, 1906, denying the petitioner’s motion to revoke and cancel liquor tax certificate No. 6,009, theretofore issued to Charles Garfinkle, authorizing him to traffic in liquors at the premises known as Nos. 290 and…

<p>Crime — abduction of infant female under eighteen years of age for sexual intercourse — conviction sustained — charge.</p> <p>The evidence in a prosecu'ion for abducting a female fourteen years of age for sexual intercourse considered, and judgment of conviction affirmed.</p> <p>Since the amendment to section 282 of t.he Penal Code it is not necessary to show a “taking” of such infant female for sexual intercourse, a “receiving” of tiie infant for such purpose is sufficient.</p> <p>Evidence corroborating the complainant’s evidence that she was received for that purpose, considered.</p> <p>Charge examined and approved.</p>

Appeal by Samuel Y. Hoffman and'others, as trustees under the last will- and testament of Eugene A. Hoffman, deceased, 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 3d day of May, 1906, denying the appellants’ motion that the comptroller of the city of New York pay to them an award made in the above-entitled proceeding.

Appeal by the defendant, the Tide Water Building Company, from a judgment of the Supreme Court in favor of the plaintiff against the said defendant, entered in the office of the clerk of the county of New York on the 12th day of December, 1905, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 23d day of Hovember, 1905, denying the said defendant’s motion for a new trial made upon the minutes.

Appeal by Joseph G. L. Byrnes from an order of the Surrogate’s Court of New York county, entered in said Surrogate’s Court on the 3d day of January, 1906, granting a motion made by the United States Mortgage and Trust Company, as substituted trustee, etc., to amend its account theretofore filed in this proceeding, and to file an amended account.

Appeal by the plaintiff, Aaron P. Ordway, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 24th day of May, 1906, granting the defendants’ motion for a commission.

<p>Appeal by the defendant, the Press Publishing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 29th day of June, 1905, upon the verdict of a jury, and also from that portion of an order entered in said clerk’s office on the 28th day of June, 1905, which denies the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, J. Frank Kelly, from a judgment of the Supreme'Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 6th day of .October, 1905, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term.</p>

Appeal by the defendants, Katharine Livingston Hamersley and another, from certain portions of a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 6tli day of June, 1905, upon the decision of the court, rendered after a trial at the New York Special Term settling the accounts of the plaintiff.

Appeal by the defendant, George B. Morris, 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 2d day of April, 1906, granting the plaintiff’s motion for the appointment of a receiver of certain property herein to carry into effect a former judgment of this court'.

Appeal by tbe defendant, William Benne, from a judgment of the Supreme Court in favor of tbe plaintiff, entered in the office of the clerk of the county of New York on the 25th day of January, 1906, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 5th day of April, 1906, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Pratt, Hurst & Company, Limit'ed, from so 'much of 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 March, 1906, upon the decision of the court, rendered after a trial at the New York Special Term, as sustains the defendants’ demurrer to the second cause of action, overrules the plaintiff’s demurrer to the second separate defense, and dismisses the complaint…

Appeal by the relator, Charles .Burnham, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of March, 1906, dismissing a writ of habeas corpus theretofore issued in behalf of the relator and remanding the said relator to the custody of the warden of the city prison.

Certiorari issued out of the Supreme Court and attested on the 4th day of August, 1905, directed to Robert Huh and others, composing the board of assessors of the city of New York, requiring them to certify and return to the office of the clerk of the county of New York all and singular their proceedings had relating to the claim of Elizabeth Lyon for damages arising from the change of grade occasioned by the construction of the Third avenue bridge.

Appeal by the defendant, John 0. Lighthouse, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clérk of the county of Monroe on the 8th day of February, 1906, upon the decision of the court, rendered after a trial at the Monroe Special Term.

<p>Appeal by the plaintiff, Oren Gr. Staples, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the cleric of the county of Jefferson on the 15th day of August, 1905, upon the report of a referee dismissing the complaint herein.</p> <p>The action was commenced in March, 1902, for the purpose of obtaining a permanent injunction restraining the defendants from removing a bridge leading from defendants’ dock to plaintiff’s hotel, located at the village of Alexandria Bay, Jefferson county, R. Y.</p>

Appeal by the defendant, James Gibson, from a judgment of the County Court of Niagara county, rendered on the 23d day of December, 1905, convicting him of the crime of burglary in the third degree and grand larceny in the second degree, and sentencing him to imprisonment in the State’s prison at Auburn for the term of four years and six months.

Appeal by Frederick H. Stevens and another, as surviving trustees for J esse Brooks Nichols and others, etc., fro'in so much of a decree of the Surrogate’s Court of the county of Chautauqua, entered in said Surrogate’s Court on the 31st day of March, 1906, as directs said trustees to pay out of moneys credited to certain infants entitled to share in such estate and who are represented upon this appeal by the respondents as special guardians .for them respectively, as follows…

Appeal by the defendant, The City of Oswego, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oswego on the 22d day of January, 1906, upon the verdict of a jury for $200, and also from ail order entered in said clerk’s office on the 19th 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 Central and Hudson Biver Bailroad Company, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 27th day of March, 1906, granting the plaintiff’s motion for an extra allowance of three per cent upon the recovery herein.</p> <p>The action was commenced in May, 1901, in the name of the Rogerson Fruit and Cold Storage Company, a corporation which has since the commencement of this action been dissolved and of which the plaintiff has been appointed permanent receiver, to recover damages for the alleged neglect of the defendant to properly transport certain fruit upon its railroad to its proper destination. After issue was joined, by stipulation of the- parties, the case was sent to a referee to hear, try and determine all the issues involved.</p> <p>The sole question involved upon this appeal is whether or not the trial was difficult and extraordinary within the meaning of section 3253 of the Code of Civil Procedure, and so as to entitle the plaintiff to an extra allowance.</p>

Appeal by the defendant, Loren F. Shurtliff, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Jefferson on the 28th day of October, 1905, upon the verdict of a jury rendered by direction of the court after a trial at the Jefferson Trial Term awarding to tire plaintiff possession of a certain savings bank passbook.

Appeal by the plaintiff, Lucinda M. Monroe, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Oneida on the 19th day of July, 1904, upon the decision of the court, rendered after a trial at the Oneida Special Term, dismissing the complaint ujion the merits.

Appeal by the plaintiff, Esther Greenley, as executrix, etc., of Oren Greenley, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Jefferson on the 31st day of January, 1906, upon the decision of the court, rendered after a trial at the Jefferson Special Term, dismissing the complaint upon the merits.

Motion by the plaintiffs, George O. Broadbooks and another, 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 by direction of the court after a trial at the Wyoming Trial Term in December, 1905.

Appeal by the defendant, James V. Burlew, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Steuben on the 17th day of April, 1905, upon the verdict of a jury for $100, and also from an order bearing date the 10th day of April, 1905, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the petitioner, Patrick W. Cullinan, as State Commissioner of Excise, 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 Ontario on the 15th day of February, 1906, denying the petitioner’s motion to revoke the liquor tax certificate issued to the respondents.

Appeal by tlie defendant, Samuel Shopiro, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 6th day of January, 1906, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 17th day of January, 1906, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Pennsylvania Railroad Company, from a judgment of the County Court of Allegany county, entered , in the office of the clerk of the county of Allegany on the 23d day of February, 1906, affirming the judgment of a justice of the peace entered upon the verdict of a jury for ninety dollars.

Appeal by the- defendant, J ames C. Fargo, as president of the American Express Company, from a judgment in favor of the plaintiff, entered in the office of the clerk of the county of Oswego on the 21st day of J anuary, 1906, upon the report of a referee.

Appeal by the plaintiff, The People of the State of New York, from a judgment of the Supreme Court in favor of the defendants, enter.ed in the office of the clerk of the county of Onondaga on the 22d day of December, 1905, upon the verdict of a jury rendered after a trial at the Onondaga Trial Term dismissing the complaint upon the merits.

Appeal by the defendants, Walter A. Parce and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Monroe on the 6th day of January, 1906, upon the decision of the court, rendered after a trial at the Monroe Special Term, overruling the said defendants’ demurrers to the complaint.

<p>Appeal by the plaintiff, David Sexton, as administrator, etc., of Grace Sexton, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Monroe on the 2d day of February, 1905, upon the dismissal of the complaint by direction of the court after a trial at the Monroe Trial Term.</p>

Appeal by the plaintiff, Eugene F. Southwick, from a judgment of the County Court of Chautauqua county in favor of the defendant, entered in the office of the clerk of the county of Chautauqua on the 8th day of January, 1906, affirming a judgment of a justice of the peace of the town of Dunkirk.

Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff,, entered in the office of the clerk of the county of Oswego on the 12th day of May, 1905, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 19th day of April, 1905, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, the National Surety Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 30th day of January, 1906, 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 31st day of January, 1906, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, William Huson, from a judgment of the County Court of Cayuga county, rendered on the 21st day of December, 1905, convicting him of the crime of assault in the first degree, and also, as stated in the notice of appeal, from an order denying the defendant’s motion for a new trial, and from certain other intermediate orders.</p>

<p>Appeal by the defendants, William B. Jackson and another, from an order of the Supreme Court, made at the Erie Special Term, bearing date the 11th day of May, 1'906, and entered in the office of the clerk of the county of Erie.</p>

Appeal by Barbara Cook and others from a decree of the Surrogate's Court of Monroe county, entered in said Surrogate’s Court on the 11th day of May, 1906, affirming an order theretofore entered in said Surrogate’s Court upon the report of an appraiser assessing a tax upon the property of Frederick Cook, deceased.

Appeal hy the defendant, The Brooklyn Cooperage Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 9th day of January, 1906, upon the decision of the court rendered after a trial at the Albany Special Term. The judgment is in the usual form overruling the demurrer, with leave to answer upon the usual terms and for sixty-two dollars and fifty cents costs.

Appeal by tbe defendant, Tbe City of Rochester, from a judgment of tbe Supreme Court in favor of the plaintiff, entered in the office of tbe clerk of tbe county of Monroe on tbe 13tli day of January, 1906, upon tbe verdict of a jury for $2,070.50, and also from an order entered in said clerk’s office on tbe 13th day of January, 1906, denying the defendant’s motion for a new trial made upon tbe minutes.

Appeal by the plaintiff, Daniel L. Mott, from an 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 20th day of March, 1905, nonsuiting the plaintiff as to the first cause of action set out in the complaint.

Appeal by the plaintiff, Wood & Selick, from a judgment of the County Court of Jefferson county in favor of the defendant, entered in the office of the clerk of the county of Jefferson on the 29th day of December, 1905, upon a nonsuit directed-by the court.

Cboss-appeals by the plaintiff and the defendant from a judgment of the Supreme' Court in .favor of the plaintiff for $4,997.93 damages, entered in the office of the clerk of the county of Monroe on the 27th day of March, 1906, upon the report of a referee, the plaintiff appealing because damages were computed upon the value of the goods in New York city instead of upon their value in London, England.

Appeal by Emil J. Loewenguth and another, as administrators, etc., of Clara Loewenguth, deceased, from an order of the Surrogate’s Court of the county of Monroe, entered in said Surrogate’s Court on the 12th day of April, 1906, overruling the objections of the appellants to the jurisdiction of the court to hear the proofs of the petitioners Werner and Harris praying that the surrogate fix the value of their services as attorneys and counselors rendered the estate of said…

<p>Surety — when one furnishing material to another under a contract with the United States cannot recover against his surety—Federal statute construed.</p> <p>One who furnishes material to another under contract to build life boats for the United States, which are to be accepted by the government only if satisfactory, cannot recover against the surety of the contractor on a bond given pursuant to 28 United States Statutes at Large, 278, chapter 280, when the contractor has defaulted and no boats have been accepted by the government.</p> <p>Said statute compelling the giving of an undertaking by a contractor is only intended to protect persons furnishing material and labor for the construction of “public works,” which means the construction of public buildings and the prosecution and completion of public works, in the sense that they belong to and are the property of the public, and to the repair thereof.</p> <p>Nor can such person furnishing material hold the surety at common law, not being a party or privy to the obligation.</p>

Appeal by the petitioner, Mary L. Grendon, 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 2d day of March, 1906, denying the petitioner’s motion for a peremptory writ of mandamus requiring the board of education of the city of New York to set a day in order to take proof and determine whether her resignation as public school teacher was her free act or was obtained by fraud and…

Appeal by the plaintiff, R. Gordon McNeil, from a judgment of tlie Supreme Court in favor of the defendant, entered in the office of tlie clerk of the county of Suffolk on the 23d day of January, 1905, upon the decision of the court, rendered after a trial at the Suffolk Special Term, dismissing the complaint upon the merits, and also from an order entered in said clerk’s office on the 23d day of January, 1905, awarding an extra allowance to the defendant.

Appeal by the plaintiff, William Tannhauser, 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 25th day of March, 1905, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term.

Appeal by the defendant, Charles Eisenman, 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 18th day of October, 1905, upon the verdict of a jury rendered by direction of the court after a trial at the Richmond Trial Term.

Appeal by the defendant, The John Hancock Mutual Life Insurance Company, from a judgment of the City Court of the city of Yonkers, entered in the office of the clerk of said court on the 26th day of May, 1905, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27tli day of May, 1905, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, John T. Pratt, 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 July, 1905, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the plaintiff, Byron Gilman, from a judgment of -the County Court of Westchester county in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 15th day of March, 1905, upon the verdict of a jury dismissing the complaint, and also from an order made on the 16th day of February, 1905, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Benny Fechter, 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 5th day of January, 1906, canceling and discharging of record a judgment of the Municipal Court of the city of Hew York, recovered by the plaintiff against the defendant, and dismissing proceedings supplementary to execution issued thereon.

<p>Appeal by the Title Guarantee and Trust Company and others, as sole surviving and acting executors, etc., of James Jennings McComb, deceased, from certain portions of a decree of the Surrogate’s Court of the county of Westchester, entered in said Surrogate’s Court on the 31st day of March, 1905, judicially settling the accounts of the said executors.</p>

Reargument of an appeal by the defendants, Horace G. Polliemus aud others, from a judgment of the Supreme Court, entered in the office of the cleric of the county of Kings on the 29 th day of June, 1904, upon the. decision of the court, rendered after a trial at the Kings County Special Term in favor of the defendant John Polhemus Printing Company for the sum of §3,000, and in favor of the plaintiff for costs.

Appeal by the defendant, Frank Woodruff Boyer, from a judgment of the Municipal Court of the city of New York in favor of the plaintiffs, entered in the office of the clerk of said court on the 28th day of December, 1905.

Appeal by tlie defendant, Tbe Hew York Glucose Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in tbe office of tbe clerk of tbe county of Queens on tbe 21st day of October, 1905, upon tbe verdict of a jury for $22,000, and also from an order entered in said clerk’s office on the 17tli day of Hovember, 1905, denying the defendant’s motion for a new trial made upon tbe minutes.

Appeal by the plain tiffs, Frances T. Ingraham 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 comity of Kings on the 17th day of, May, 1906, requiring the plaintiffs to serve a verified bill of particulars.

Appeal by the defendant, Paul Steffen, from an order of the Supreme Court, made at the Kings County Special Term and entered in the oifice of the clerk of the county of Kings on the 28th day of October, 1905? denying the defendant’s motion to open a default,

Appeal by the plaintiff, Arthur Harder, from a judgment of the Hunicipal Court of the city of Hew York in favor of the defendant. The action was by tenant against landlord for the conversion of an ice box. The defendant leased a store to the plaintiff, who carried on in it the business of retail dealer in butter and eggs.

Appeal of the defendant, Charles Tasman, 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 denying the said defendant’s motion to cancel a Us pendens.

Appeal by the defendant, the Yonkers Railroad Company, from, a judgment of the City Court of Yonkers in favor of the plaintiff, entered in the office of the cleric of said court on the 1st day of February, 1905, upon the verdict of a jury for $500, and also from, an order entered in said clerk’s office on the 14th day of February, 1905, denyingthe defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff; Jacob M. Block, from a judgment of the Municipal Court of the city of Hew York in favor of the defendant, rendered on the 12th day of December, 1905, dismissing the plaintiff’s complaint upon the merits after a trial without a jury.</p>

Appeal by the plaintiff, Annie Oreceliüs, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 22d day of April, 1905, upon the dismissal of the complaint by direction of the court after a trial at the Queens County Trial Term, the court having set aside a verdict previously rendered by the jury in favor of the plaintiff for $600, and also from an order entered in said cleric’s office on the 8th day…

Appeal by the plaintiff, William Kramer, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, rendered on the 6th day of April, 1905.

Appeal by the defendants, The New York Central and Hudson Eiver Eailroad Company and another, from a judgment of the Supreme.

. Appeal by the plaintiff, Cornelia Seymour, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Queens on the 12th day of May, 1905, upon the dismissal of the complaint by direction of the court after a trial at the Queens County Trial Term, and also from an order entered in said clerk’s office on the 15th day of May, 1905, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Edward P. Davis, from an order of the City Court of Yonkers, entered in the office of the clerk of said court on the 5th day of March, 1906.

Appeal by the defendants, Charles A. Wetzel and another, from go much of a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Westchester on the 7tli day of June, 1904, upon the decision of the court rendered after a trial at the Westchester Special Term, as directs the execution by the defendants of a lease for a period longer than five years, and prohibits a covenant therein against subletting. ■

<p>Appeal by the defendant, the Pennsylvania Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff and against the defendant railroad company, entered in the office of the clerk of the county of Kings on the 14th day of October, 1905, upon the verdict of a jury for $325, and also from an order entered in said clerk’s office on the 16th day of October, 1905, denying said defendant’s motion for a new trial made upon the minutes.</p> <p>By the judgment appealed from the complaint, with the consent of the plaintiff, was dismissed as to the defendant The Westcott Express Company.</p>

Appeal by the defendant, the New Yorker Staats-Zeitung, from an order of the Supreme Oorirt, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 5th day of June, 1905.

Appeal by the defendant, Adolph Rand, from' a judgment, of-the Court of Special Sessions of. the city, of New York, rendered on'the 6th day of November, 1905, convicting the defendant of the crime of violating the Liquor Tax Law. ■

Appeal by the plaintiff, Solom m Goldenberg, 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 16th day of March, 1906, denying the plaintiff’s motion to vacate a previous order for the examination of the plaintiff before trial.

<p>Crime—Penal Code, section 289—endangering health and morals of child—conviction reversed.</p> <p>Evidence in a prosecution for endangering the morals of a female child in violation of section 289 of the Penal Code considered and judgment of conviction reversed.</p>

<p>Town — counsel employed by independent town board of auditors—. mandamus to compel payment of sums allowed for services.</p> <p>A town board of auditors established independent of the regular town board by virtue of section 173 et seq. of the Town Law, has by section 174 of said act the same power to employ counsel to resist claims against the town as that possessed by the regular town board had no independent board of auditors been created.</p> <p>Hence when such board of auditors has employed counsel and allowed his claim for services, a supervisor to whom the money has been paid for the settlement of the claim will be ordered by mandamus to pay over the same to the claimant, although his employment was not authorized by the regular town board.</p>

<p>Mechanic’s lien—advance payments by owners—when not made to avoid provisions of Lien Law—municipal corporation—provision of charter of city of Yonkers as to local filing of notices of mechanics’ liens—same unconstitutional because not mentioned in title.</p> <p>Under the present provisions of the Mechanics’ Lien Law advance payments by an owner to a contractor are not prohibited unless made for the purpose of avoiding the provisions of the act. It is not enough that such payments may impair the effect of the statute and thus pro tanto avoid it, but they must also have been made with a purpose to avoid the statute.</p> <p>A finding that advance payments were made for the purpose of evading the act is not warranted by evidence that, although the owner had made such payments six weeks previously, he asked a sub-contractor to file liens and continue work, stating that there were still payments due sufficient to satisfy the liens, which belief was justified by the small amount of the subsequent liens.</p> <p>The provisions of section 3 of title 12 of the charter of the city of Yonkers, requiring the filing of noticSs of mechanics’ liens in said city in the office of the city clerk, are not a substitute for the provisions for the filing of liens contained in the General Lien Law, but supplementary thereto, and require an additional filing.</p> <p>But as such provision is not mentioned in the title of the act incorporating the city of Yonkers, it is in violation of section 16 of article 3 of the State Constitution, and a contractor who has failed to comply therewith does not lose his lien if filed as required by the General Lien Law.</p> <p>The purpose of said constitutional provision is to prevent surprise in legislation, and while a city charter may without special mention in the title contain provisions relating to the usual city government, an isolated provision regulating mechanics’ liens is not to be expected in such charter, and should be mentioned in the title.</p>

<p>Principal and agent — when bankrupt repurchasing his own claim cannot sue undisclosed principal thereon — evidence insufficient to establish agency — declarations of agent—reading from memorandum.</p> <p>A bankrupt, who among his assets scheduled a claim against a specific person, and who after his discharge buys the claim from a third person who purchased it on a sale by the trustee, cannot thereafter enforce the claim against an</p> <p>. undisclosed principal not named as the debtor. This, because the right of action sold by the trustee was limited to the debtor named, and the bankrupt repurchasing the claim hold's under the assignment and not in his original right.</p> <p>One who is not the owner of property upon which improvements are being made under an express contract with the father of the real owner cannot be held for the value of the whole work as undisclosed” principal, because she was the tenant, was present when the work was being done, and directed some of the minor changes on the theory that the work should suit her because she lived in the house. It seems, however, that she may be personally liable for the value of the extras ordered by her. •</p> <p>Such agency cannot be established by the mere declarations of the alleged agent not made in the principal’s presence or communicated to her, even though she was present when the work was being done, if it is clear that she was not the owner of the building.</p> <p>It is error to allow a witness to read from a memorandum of extra work done by him, the amount of which is in dispute, without laying a proper foundation for such evidence.</p> <p>The declarations of an alleged agent as to the extra work done for an undisclosed principal only become competent when the agency is established, and the reception of the evidence should be conditioned on such proof, in the absence of which the declarations cannot be made the basis of a judgment against the alleged principal.</p>

Appeal by the defendants, Charles A. Runk, individually and as executor, etc., of William G. Taiman; deceased, and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 5th day of May, 1905, upon the decision of the court rendered after a trial at the Kings County Special Term overruling the said defendants’ demurrers to the complaint.

Appeal by the petitioner from an order of the Supreme Court, made at thé Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 7th day of May, 1906, denying the application of the petitioner to review an election of directors of the Westchester Trust Company and to establish his election as a director.

Appeal by the plaintiff, Pesach Weinberg, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Richmond on the 3d day of January, 1905, upon the verdict of a jury for nominal damages rendered by direction of the court, and also from an order entered in said cleric’s office on the 8th day of December, 1905, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Simpson-Crawford 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 10th day of April, 1905, upon the verdict of a jury for $1,250, and also from an order entered in said clerk’s office on the 11th day of April, L905, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the relator, Josephine Forrester, 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 28tli day of May, 1906, dismissing writs of habeas corpus and certiorari theretofore issued upon the application of the relator, and remanding Peter Forrester, an alleged incompetent, to the custody of the respondent.

Appeal by the defendant, Hilton L. Sanford, from an interlocutory judgment of the Supreme Court in favor of the plaintiff entered in the office of the clerk of the county of Orange on the 30th day of June, 1905, upon the decision of. the court, rendered after a trial at the Orange Special Term, restraining and enjoining the defendant from violating a certain covenant in a contract between partners in the firm of P. E. Sanford & Co. The defendant and Pierson E. Sanford were…

<p>Appeal by the plaintiff, Harry Bentz, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Westchester on the 2d day of May, 1906, granting the defendant’s motion for a compulsory reference under the provisions of section 1013 of the Code of Civil Procedure.</p>

Appeal by the plaintiff, Aaron Magida, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of defendants rendered on the 6tli day of December, 1905.

Appeal by the plaintiffs, Arthur W. Smith and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 24th day of April, 1906, granting the defendant’s motion for the appointment of a referee herein.

Appeal by the defendant, Cornelius Leary, from an order of the Supreme Court, made at the Dutchess County Special Term and entered in the office of the clerk of the county of Dutchess on the 21st day of May, 1906, denying the defendant’s motion for a change of venue.

Appeal by the defendants, Moritz L. Ernst and others, 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 2d day of December, 1905, as resettled by an order entered in said clerk’s office oil the 16th day of December, 1905.

Appeal by the relator, Robert A. Ammon, 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 28th day of May, 1906, overruling the relator’s demurrer to the respondent’s return in the above-entitled habeas corpus proceeding and dismissing the writ theretofore issued.

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plain tiff, entered in the office of the clerk of the cqrnity of Kings on the 6th. day of Decernher, 1905, upon the decision of the court rendered after a trial at tne Kings County Trial Term, a jury having been waived.

Appeal by the defendant, The City of New Rochelle, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Westchester on the 16th day of December, 1905, upon the decision of the court, rendered after a trial at the Westchester Special Term, overruling the defendant’s demurrer to the complaint.

Gross-appeals by the defendant, the Prindle Engineering Company, and the defendants, Henry II.

Appeal by the relator, Alfred M. Shook, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 20th day of August, 1906, denying the relator’s motion for a peremptory writ of mandamus.

Appeal in the first above-entitled proceeding by the petitioners, George E. Payne and another, from an order of the Supreme Court, made at the Rensselaer Special Term and entered in the office of the cleric of the county of Albany on the 20th day of August, 190G, denying their application for a peremptory writ of mandamus.

<p>Appeal from an order denying a moton to dissolve an injunction.</p>

<p>Appeal from an order denying the plaintiff’s motion for a hill of particulars.</p>

<p>Appeal from, an order granting leave to serve an amended complaint.</p>

<p>Appeal from an order directing the payment of an award to the respondent.</p>

<p>Appeal from an order granting a motion for a discontinuance on terms.</p>

<p>Order setting aside process &emdash; costs.</p>

<p>Order affirmed, with ten dollars costs and disbursements.</p>

<p> Injunction modified. </p>

from an order denying an application to vacate a warrant of attachment. Order affirmed, with ten dollars costs and disbursements. Order filed.

<p>Negligence ■&emdash;occupant of automobile killed by running over embankment at end, of a closed, city street, whei'e a bridge formerly stood, and falling upon railroad tracks &emdash; compl-iint dismissed&emdash;sufficiency of barrier and lights&emdash;presumption as to street being open.</p>

Order reversed and motion for new trial on the minutes denied, with costs to the appellant. All concurred, except McLennan, P. J., and Kruse, J., who. dissented in an opinion by McLennan, P. J.

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

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

<p>Judgment of the Municipal Court affirmed, with costs. Ho opinion. Hirscliberg, P. J., Woodward, Jenks and Hooker, JJ., concurred; Gaynor, J., read for reversal.</p>

<p>Vendor and purchaser &emdash; meeting of minds on price of real estate &emdash; authority of attorney to fix price on statement of owner that he would not do anything without consulting his attorney ^-broker’s commissions &emdash; corrupt agreement of attorney.</p>