Volume 115 — New York Appellate Division Reports

Appeal by the claimant, Henry Carhart, from a judgment of the Court of Claims of the State of Hew York in favor of the claimant, bearing date the 16th day of October, 1905, and entered in the office of the clerk of said court on the ground of the insufficiency of the damages awarded. , The claimant was in 1901 the lessee of a farm through which ran Limestone creek, which runs under the Erie canal near Minoa, 1ST. Y., about one mile south of and above said farm.

Appeal by tlie plaintiff, Reuben H. Coatsworth, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Erie on the lOtli day of July, 1902, upon the decision of the court, rendered after a trial at the Erie Special Term, dismissing the complaint upon the merits, and also from an order entered in said clerk’s office on the 8tli day of July, 1902, granting the defendants an extra allowance.

Appeal by the defendant, the United Shirt and Collar 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 21st day of December, 1905, upon the verdict of a jury for $1,000; also from an order entered in said clerk’s office on the 21st day of December, 1905, denying the defendant’s motion for a new trial made upon the minutes, and also from an order entered -in said clerk’s office on the…

Appeal by the plaintiff, Cornelius II. Slingerland, from an order of the Supreme Court, made at the Rensselaer Special Term and entered in the office of the clerk of the county of Albany on the Ith day of June, 1906, appointing a referee to ascertain and determine the damages sustained by the defendant, the Albany Typographical Union No. 4, by reason of an injunction theretofore granted herein.

<p>Will construed —when legacy should be charged upon real estate.</p> <p>Legacies may be charged upon real estate without express direction therefor in the will if the intention of the testator so to do can fairly be gathered from all the provisions of the will, and extraneous circumstances may be considered in aid of the terms of the will. The fact that the testator knew that the personal estate was insufficient to 'pay legacies may be considered to indicate an intention to charge the legacies upon lands.</p> <p>A testator left his residuary estate to his daughters on the termination of a life estate therein, subject to the payment of an annuity to their brother B. for liis life, and to secure the payment the daughters were directed to “set apart out of the personal property hereby bequeathed ” a certain sum to be invested and held in trust to pay said annuity. It was further provided that at the death of E. the trust fund should be paid over by the daughters to his next of kin.</p> <p>At the time of the. execution of the final codicil to said will, which had the effect, of republishing the aforesaid provisions, the testator had so depleted his personalty by the purchase of new real estate that on his death there was no personal estate, and the daughters came into possession of realty only.</p> <p>Meld, that, considering the will in the light of said extrinsic circumstances, the testator intended that the legacies left to the next of kin oí E. should be charged upon the real estate devised to the daughters;</p> <p>That such construction was not affected by the fact that the annuity to E. was to be paid by setting apart a sum “ out of the personal property,” for such provision related only to the annuity and not to the gift over of the principal to E.’s next of kin.</p>

Appeal by the relator, The Troy Press Company, from an order' of the Supreme Court, made at the Ulster Special Term and entered in the office of the clerk of the county of Rensselaer on the 8th day of February, 1906, denying the relator’s motion for a peremptory writ of mandamus. The relator is a domestic corporation publishing the Troy Daily Press in the city of Troy in Rensselaer county. The respondent is 'the treasurer of said county.

Appeal by the plaintiff, John R. Bayles, from a judgment of the County Court of Suffolk county, entered in the office of the clerk of the county of Suffolk on the 27th day of December, 1905, and also from an order entered in said clerk’s office on the 10th day of January, 1906, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the-plaintiff, Michael O’Dwyer, 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 23d day of November, 1905, upon the verdict of a jury rendered by direction of the court after a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 1st day of November, 1905, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, the New York Cold Storage Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the -office of tire clerk of the county of Queens on the 4th day of December, 1905, upon the verdict of a jury for $3,213.71, and also from an order entered in said clerk’s office on the 28th day of November, 1905, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Adams Dry Goods Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk- of the county of Richmond on the 25th day of October, 1905, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 18th day of October, 1905, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Long Island Bailroad Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Queens on the 23d day of May, 1905, in part upon the verdict of a jury and in part upon the decision of the court rendered after a’trial at the Queens County Trial Term, as amended, and also from an order entered in said clerk’s office on the 23d day of May, 1905, denying the defendant’s motion' for a…

Appeal by the plaintiff, William Giltillan, as administrator, etc., of James Giltillan, deceased, from a .judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Richmond on the 26th day of October, 1904, upon • the dismissal of the complaint by direction oí the court after a trial at the Richmond Trial Term.

Appeal by the plaintiff, the Armour Packing Company, from a judgment of the- Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on tire 31-st day of July, 1905,. upon tlíe decision of the court, rendered after a trial at the Kings County Special' Term, overruling the plaintiff’s demurrer to the defendant’s answer and dismissing the complaint upon the merits. ...

Appeal by the plaintiff, Armour and Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 31st day of July, 1905, upon, the decision-of the court, rendered after a trial at the Kings County Special Term, overruling the plaintiff’s demurrer to the defendant’s answer and dismissing the complaint upon the merits.

Motion by the plaintiff, Isaac Krasnow, 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 Kings County Trial Term in October, 1905. .

Appeal by the plaintiff, Charles C. Moore, 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 27tli day of May, 1905, upon the verdict of a jury, 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.

<p>Will construed — when power of sale limited to trustees of specific trust. — when contract of sale by other trustees not enforcible. '</p> <p>When one clause of a will gives the residuary estate to the testator’s widow, and others named, in trust to pay certain annuities, the balance of the income to the widow for life,, with power in the trustees in their discretion to sell the real estate for the aforesaid purposes, and a subsequent clause provides that upon the death of the widow the residuary estate is to be held in trust by other trustees named, with directions to pay the same annuities during the lives of the beneficiaries, and at their death to divide the estate among the testator's children, the power of sale must be construed to be limited to the trustees, named in the first of said clauses.</p> <p>Hence, on the death of the widow, a trustee holding under the second of said - clauses has no power to sell real estate, and -cannot compel specific performance by one who contracts, to buy the same.</p>

Appeal by the defendant, The City of Mew York, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 11 th day of May, 1906, denying the defendant’s motion for an inspection of the books of the plaintiff and of its manufacturing plant. The action is to recover for illuminating gas furnished to the defendant for its public buildings and streets.

_ Appeal by the defendant, the Empire State Dairy 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 29th day of May, 1905, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 29th day of May, 1905, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, William K. Kurtz 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 Kings on the 21st day of June, 1905, upon the decision of the court, rendered after a trial at the Kings County' Special Term, as amended by an order entered in said clerk’s office on the 5th day of July, 1905.

Appeal by the plaintiff, Arthur Lambert, from .a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 7th day of August, 1905, upon the dismissal of .the complaint by direction of the court after a trial at the Westchester Trial Term, and also from an order entered in said clerk’s office ’on the 10th day of August,. 1905., denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, The City of Hew York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 20th day of May, 1905, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 25th day of May, 1905, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Election Law—power of court over returns of primary elections.</p> <p>The written statement of results of a canvass of votes cast at a primary election controls over the oral proclamation of the result. ■</p> <p>The Special Term has power upon proper application to set aside the canvass of inspectors of a primary election, to adjudge the true result,- to direct the inspectors to reconvene and make and file a record showing the results adjudged, to nullify the certificates of election, and to direct the issuance of others to candidates entitled thereto at any time before the candidates first declared elected have actually entered into possession of their offices.</p>

Appeal by the defendants, Louis Magenheimer and another, from a judgment of the Supi-eme Court in favor of the plaintiff, and. against the said defendants, the complaint having been dismissed during the trial as to the defendant Noval, which judgment was entered in the office of the clerk of the county of Kings on the 17th day of March, 1905, upon the verdict of a jury, and also from an order entered in said clerk’s office on, the 22d day of March, 1905, denying the said…

<p>Appeal by the defendant, Charles E. McDonnell, fromat judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 23d day of January, 1905, upon the decision of the court rendered after a trial before the court without a jury at the Kings County Trial Term, adjudging plaintiff to be the legal owner of certain premises and entitled to recover possession.thereof, and awarding damages against said defendant for withholding possession,</p>

Appeal by the defendant, John Distler, from a judgment of the Municipal Court of the city of Hew York in favor of the plaintiff. , Action against a hotelkeeper for negligence. The plaintiff was in the billiard room of the hotel of the defendant with two other women. She.had never been there before. At one corner of the room was a door with the sign “ private ” over it. It opened into a passageway which led straight to the private dining room of, the proprietor.

Appeal by the defendant,. The Brooklyn Heights Railroad-Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 16th day of December, 1905, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 14tli day of December, 1905, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Sollie Lewis, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 11th day of January, 1906, upon the decision of th'e court rendered after a trial at the Kings County Special Term overruling the defendant’s demurrer to the third amendéd complaint.

Appeal by the defendant, Alexander Alexander, from an order of the Supreme Court,' made at the Wew York Special Term and entered in the office of the clerk of the county of Wew York on the' 25th day of May, 1906, as resettled by an order entered in said clerk’s office on the 6th. day of June, 1906, directing the defendant to surrender all books, papers, etc., in his possession as general manager of the plaintiff, and enjoining the defendant ¡pendente lite from acting as such…

Appeal by the defendant^ Alexander Alexander, 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- May, 1906, as resettled by an order entered in said' clerk’s office on the 6th day of June, 1906.

Appeal by the defendant, The National Gum and Mica 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 25th day of May, 1906, as resettled by an order entered in said clerk’s office on the 6th day of June, 1906, restraining the defendant from transferring or in any way disposing of or voting upon 120 shares of preferred stock and 120 shares of common stock in the plaintiff…

<p>Appeal by the defendant, Louis Sidorsky, from an order of the Supreme Court, made at the FTew York Special Term and entered in the office of the clerk of the county of FTew York on the 14th day of May, 1906, denying the defendant’s motion for leave to file a supplemental answer and for the cancellation of a Us pendens filed herein. J. A. Seidman, for the appellant.</p>

Appeal by the plaintiff, Philip Appelbaum, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on .the 21st day of August, 1906, vacating and setting aside a judgment theretofore entered in this action and opening the defendant’s default.

Motion by the relator, Thomas C. Quinn, to dismiss an appeal by the defendants from an order made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of October, 1906.

Appeal by the defendants, Charles Ward Hall and another, from a judgment of the Supreme Court iri favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 2itli day of January, 1905, upon the decision of the court, rendered after a trial at the Hew York Special Term, directing the sale of certain premises in an action brought to foreclose a mechanic’s lien.

Appeal by the defendant, John McGovern, 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 19th day of January, 1906.

Appeal by the defendant, Thomas A. Kevins, 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 6th day of September, 1906.

<p>Negligence— unguarded elevator shaft — assumption of obvious risk by-employee for jury — Employers’ Liability Act construed.</p> <p>The doctrine of the assumption of obvious risks by an employee was not eliminated from negligence actions by the Employers’ Liability Act, even though the employer fails to obey the strict provisions of law, as by maintaining a hoisting elevator without guards. The effect of the Employers’ Liability Act was to take the question of assumption of risks from the court and make it a question for the jury.</p> <p>Hence when an employee has been in j uved by falling down the unguarded shaft of a hoisting elevator, used in the construction of a building-, the absence of guards being obvious, it is error to refuse to submit to the jury the question as to whether the employee assumed the obvious risk.</p>

<p>Appeal by the plaintiff James F. Sullivan and by the defendants, John McCann and another, as executors and trustees, etc., 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 27th day of June, 1906.</p>

Appeal by the defendants, Julius Mautner and another, as copart-r ners in trade, 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 14th day of September, 1906, granting leave to issue a commission herein,'as refuses to permit the interrogatories, in addition to being framed in the English language, to be framed in the German language and the answers taken in German, and…

<p>Bill of particulars to frame amended answer denied.</p> <p>When the plaintiff sets out a contract of specific date made by the defendant through a specific agent, employing the plaintiff to secure contracts with the government for the purchase of torpedo boats at a specific commission, and that he procured the purchase of four boats, the defendant having served an answer denying the contract and having an affidavit of the agent denying the same, is not entitled to a bill of particulars for the purpose of preparing an amended answer.</p> <p>It seems, that on a proper showing, a bill of particulars in order to prepare for . trial might be proper.</p>

Appeal by the defendant, Robert R. Chapman, 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 19th day of June, 1906, as resettled by an order entered in said clerk’s office on the 25th day of June, 1906, directing the defendant to give a further bill of particulars in respect to certain items in his counterclaim.

Appeal by the defendant, Robert R. Chapman, from an order of the Supreme Court, made at the New York Special Term and entered in the .office of the cleric of the county of New York on the 13th day of September, 1906, appointing a referee herein.

Appeal by the defendants, Edward K. Jones, individually and as executor and trustee, etc., of Ferdinand Hirsch, deceased, and others, 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 30th day of December, 1905, upon the decision of the court rendered after a trial at the Hew York Special Term.

Appeal by the defendant, Josephine J. S. Wendel, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk . of ■ the county of Hew York on the 6th day of August, 1906.

Appeal by the relator, James Cl. Collins, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of January, 1906, denying the relator’s application for a peremptory writ of mandamus and granting an alternative writ of mandamus directing the reinstatement of the relator upon the condition that he waive all claims for back salary.

Appeal by the defendant, the Degnon-McLean Contracting Company (a corporation), 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 March, 1906, permitting the plaintiff to servé an amended complaint.

Appeal by the defendant, Harriette T. H. Greene, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county óf Hew York on the 28th day of December, 1905, upon the decision of the court, rendered after a trial at the Hew York Special Term, directing the foreclosure of a mortgage described in the complaint. .

<p>Appeal by the defendant, Charles E. Locke, 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 6th day of June, 1906, vacating a prior order for the examination of the plaintiff before trial.</p>

<p>Appeal by the plaintiff, Sigmund Werner, 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 4th day óf May, 1906.</p>

Appeal by the plaintiff, Annie Harrington, 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 8th day of January, 1906, 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, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of May, 1905, upon the verdict of. a jury rendered by direction of the court after a trial at the New York Trial Term.</p>

Motion by the plaintiff, Isaac P. Smith, as executor, etc., to dismiss an appeal by the defendants Beekman Hunt and others from a judgment of the Supreme Court, entered in the office of the clerk of the county of Hew York upon the decision of the court rendered after a trial at the Hew York Special Term.

<p>Appeal by the plaintiff, The J. P. Lewis Company, 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 Lewis on the 18th day of April, 1906, granting the defendant’s motion to change the place of trial of the action from the county of Lewis to the county of New York.</p>

Appeal by the petitioner, Charles E. P. Babcock, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 20th day of July, 1906, denying an application for. a peremptory writ of mandamus directed to the respondents commanding them to execute, deliver and pay to the petitioner warrants on the city treasurer for services rendered by petitioner as an assistant engineer in the bureau of engineering in…

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

Appeal by the defendant, William H. Barron, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 26th day of December, 1905, upon the verdict of a jury, and also from an order entered in- said clerk’s office on the ,29th day of December, 1905, denying the defendant’s motion for a new trial made upon the minutes.

Appeal, by William 0. Wilson, Acting Comptroller of the State of New York, from an order entered in the Surrogate’s Court of the county of New York, adjudging the estate of George W. Kidd, deceased, and the transfer thereof to be exempt from taxation under the act in relation to taxable transfers of property.

<p>Appeal by the plaintiff, Max Feist, 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 February, 1906, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits.</p> <p>This action is brought by the vendor for specific performance of a contract to convey real estate. The judgment was in favor of defendant- for the recovery of the amount paid to apply on the purchase price, together with interest thereon, and for the expenses of examining the title and for costs.</p>

<p>Appeal by the defendant, John T. Oakley, as commissioner of water supply, gas and electricity of the city of Hew York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 2d day of February, 1906, upon the decision of the court rendered after a trial at the Hew York Special Term requiring defendant to correct the records of the department of water supply, gas and electricity of the city of Hew York for the period between May 16, 1904, and October tenth théreafter, so that the same will show that plaintiff used during said period on the premises described in the complaint 441,000 cubic feet of water instead of 859,000 cubic feet of water, as shown by the records, which are in accordance with the registration of the meter, arid requiring a corresponding correction in the amount of the indebtedness of the plaintiff to the defendant for the use of water.</p>

Appeal by the defendants, John R. Yoofhis and others, commissioners, etc., 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 6th day'of October, 1906,, granting the relator’s motion for a peremptory writ of mandamus.

<p>Debtor and creditor—action to set aside fraudulent transfer by representative—Personal Property Law, section 7, construed—when court will dismiss complaint on its own motion.</p> <p>Section 7 of the Personal Property Law, authorizing a creditor of a decedent, having a claim exceeding $100 to maintain an action to set aside a fraudulent transfer by the decedent, applies only when such transfer was made by the decedent himself; no action to set aside an alleged fraudulent transfer by a • representative of the decedent is authorized by the statute.</p> <p>Although no objection to the maintenance of an action to set aside a fraudulent transfer by a representative is taken by the defendant, the court will raise the objection on its own motion in order to avoid establishing a misleading precedent. ' . .</p>

<p>Appeal by the defendant, Harry Kottler, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 2d day of August, 1906, granting an injunction pendente lite.</p>

<p>Vendor and purchaser — covenant prohibiting the building of an apartment house r when title not marketable — when cloud on title, although party to covenant had no title.</p> <p>A vendor of lands who contracts to convey an unincumbered title cannot compel the vendee to accept lands subject to a restrictive covenant prohibiting the building of apartment houses.</p> <p>Although such restrictive covenant, which provided that it shall not be' binding upon any party until all parties have executed the same, was executed fifteen - years before by one of the parties, at a time when he had conveyed to his wife, who did riot join in the covenant, the title of the other parties to the covenant is not free of incumbrance beyond a reasonable doubt so as to warrant a decree of specific performance by the vendee;</p> <p>Moreover, the covenant being under seál, the-parties thereto cannot question its validity in the absence of a reformation of the instrument on the ground of mistake.</p> <p>So, too, the vender having had the benefit of the observance of the covenant by the other parties for fifteen years, is estopped from denying its validity.</p>

<p>Appeal by the plaintiff, The Pittsburgh Amusement Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of New York on the 10th day of January, 1906, upon the decision of the court rendered after a trial at the New York Special Term dismissing the complaint upon the merits.</p>

<p>Vendor and purchaser—when vendee not entitled to charge lands with equitable lien as against subsequent purchaser.</p> <p>The plaintiffs entered into a contract with one. R. to purchase lands at a time when R. had no title or interest therein, the' plaintiffs paying a deposit. R. subsequently obtained a contract of sale from one who was not the owner of the lands, and assigned said contract to A., to whom the true owner subsequently conveyed the' premises. A. thereafter conveyed to the defendant S., who paid the consideration for the lands and conveyed them to his wife through mesne conveyances.</p> <p>In an action to recover the deposit paid to R. by the plaintiffs, and to charge the lands with an equitable lien for that amount,</p> <p>Held, that the title acquired by S. and his wife was not through R., with whom the plaintiffs had contracted, but through A., who took from the true owner; That R., under his contract to purchase from one who was not the owner, •acquired no title, legal or equitable, to which a lien could attach in plaintiffs’ favor.</p> <p>.That, although the plaintiffs were entitled to recover the deposit from R. and those participating with him in the fraud, they were not entitled to impress the lands with an equitable lien as against S. and his wife, they being purchasers for value not deriving title through R.;</p> <p>That, although the attorney who drew the contract between the plaintiffs and R., and who knew of the plaintiffs’ claim, also acted in the transfer of-the title to S. from the other parties, said knowledge Of the attorney, even if chargeable to S., was not notice that the lands were subject to the lien in the plaintiffs’ favor, as the information disclosed that R. had no title, legal or equitable, in the property.</p>

<p>Municipal corporation—subways for electric wires in the city of New . York — electric lines company not entitled to build independent subways. ■ 1</p> <p>The New York Electric Lines Company, although entitled under chapter 483 of the Laws of .1881 to lay electric conductors underground in the streets of cities, . on obtaining permission to use such streets from the common council of the .city, and although such permission was granted to said company by the board of aldermen of the city of New York in 1883, said company was .bound nevertheless, not having proceeded - to act under that permission; to have its plans approved by the commissioners of electrical subways of said city or the officials who succeeded to the powers of "said board, as required by chapter 534 of the Laws of 1884, and by chapter 499 of the Laws of 1885, within sixty days after the passage of said act of 1885. " - x</p> <p>Said.act.of 1885 requiring the approval of plans was a legitimate act of -the. Legislature, under the police power, arid did not impair any contract rights of said company when it bad not acted upon said permission or procured the approval of its plans within sixty days after the passage of said act.</p> <p>Moreover, as the board of electrical subway commissioners had, pursuant to its powers, contracted with the Consolidated Telegraph and Electrical Subway Company for the construction of a subway to be used by all companies authorized to lay wires underground in said city, which contract was ratified by chapter 716 of the Laws of 1887, the said New York Electric Lines Company is not entitled to a mandamus to compel the said authorities to allow it to construct an independent subway under said prior permission in the absence of an allegation that it cannot obtain space in the subway built by the said subway company.</p> <p>The prior consent of the said city that the New York Electric Lines Company construct a subway, not having been acted upon by said company, was not a Contract with or franchise granted by the city, and the rights of said company' were not impaired by the subsequent statute or action of the municipal board thereunder authorizing the construction of a subway to be open to all users.</p>

<p>Separate appeals by the plaintiffs, Charles Gfriffen and others, and by the. defendant, Mary W. Pell-Haggerty, from certain parts of a judgment of the Supreme Court, entered in the office of the clerk of the county of Mew York on the 9th day of April, 1906, upon the decision of the court rendered after a trial at the Mew York Special Term.</p>

<p>Negligence — whether child was sui juris left to jury by consent — contributory negligence for jury.</p> <p>In an action to recover for the death of a vigorous boy three years and nine months old, who was struck by a street car while crossing a city street, where the court, at the request of the defendant and by consent of the plaintiff, has charged that the j ury must determine from the evidence whether or not the boy was mi juris, it is error for the court to refuse to charge that if the jury found the boy to be sui juris then they must determine from the evidence whether he observed the degree of care' proper to his age, and if not that the verdict must be for the defendant.</p>

Appeal by the plaintiffs, Frances Morris and another, as executors, etc:, of Joachim De Comps, deceased, from a judgment of the Supreme Court in favor, of the defendant, entered in the office of the clerk of the county of New York on the 13th day of February, 1906, upon the decision of the court, rendered after a trial at the New York Trial Term, a jury having been waived, dismissing the complaint upon the merits. .

Appeal by the plaintiff, Bridget Sheridan, as administratrix, etc., from a judgment of the Supreme Court in favor of the defendant Interborough Rapid Transit Company, entered in the office of the clerk of the county of ¡New York on the 28tli day of February, 1906, upon the dismissal of the complaint as to said defendant by direction of the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 19th day of February, 1906,…

<p>Appeal by the plaintiff, Mattio Pigone, 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 July, 1906, denying the plaintiff’s motion to require the defendant Lauria to make his amended answer more definite and •certain.</p>

' Appeal by the defendants, Whitman S. HEad and another, as committee, etc., from an interlocutory judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of the county of New York on the 'Tth day of April, 1906, upon the decision of the court, rendered after a trial at the New York Special Term, directing an accounting by the defendants Head and Fliess.

Appeal by the plaintiff, Christian C. Horn, from so much of an order of the Supreme Court, made at the Hew York Special Term bearing date the 24th day of July, 1906, and entered in the office of the clerk of the county of Hew York as directs a discontinuance of this action upon certain conditions.

Appeal by the plaintiff, Annie Heim, and by the defendants Anthony Schwoerev and others, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 29th day of June, 1906, relieving the respondent Blumenthal from liability as purchaser on a foreclosure sale and directing that his deposit be repaid. For a statement of the-facts see the dissenting opinion of Scott, J. {post, p. 2'96).

Appeal by the defendant, William T. Koeli, 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 29th day of January, 1906, upon the verdict of a jury for $3,500, and also from an order entered in said clerk’s office on the 30th day of January, 1906, denying the defendant’s motion for a new trial inade upon the minutes.

Appeal by the plaintiff, Edward S. Hosmer, as trustee, etc., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 24th day of January, 1906, upon -the decision of the court rendered after a trial at the Hew York Special Term dismissing the complaint upon the merits.

/ Appeal by the defendants, Charles S. Lowther and another, 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 31st day of May, 1906, as resettled by an order entered in said clerk’s office on the 7th day of June, 1906, as denies the motion of the defendant Amelia E. Lowther to vacate a subpoena duces tecum theretofore served herein. .

Appeal by Thomas Watson and' others, as executors, etc., from so much of! a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on tlie 11th day of April, 1906, judicially settling the accounts of said executors, as surcharges their account in certain respects and reduces tlieir commissions. The principal item surcharged is a, judgment for $10,423.55’ recovered by the widow of the testator.

Appeal by the defendants, the Interborough Rapid Transit Company and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 3d day of January, 1906, upon the decision of the court, rendered after a trial at the New York Special Term, awarding to plaintiff an alternative injunction and incidental damages for the taking of certain easements.

Appeal by the plaintiff, Eobeft S. Howard, from a judgment of the Supreme Court, entered in the office of the: clerk of the county of Hew York on the 16th day of February, 1906, pursuant: to an order entered in said clerk’s office on the 30th day of January, 1906, reducing the verdict of a jury theretofore rendered in favor of the plaintiff and awarding the said plaintiff nominal damages only, and also from the said order reducing the verdict.

Appeal by the plaintiff, George W. Buskirk, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Rew York on the 9th day of February, 1906, upon the decision of the court rendered after a trial at the Rew York-Special Term dismissing the plaintiff’s complaint.

<p>Appeal by the defendant, the Magnetic Separator Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Bew York on the 29th day of March, 1906, upon the verdict of a jury; also from an order entered in said clerk’s office on the 28th day of March, 1906, denying the defendant’s motion for a new trial made upon the minutes, and also from an order entered on the 18th day of April, 1906, granting the plaintiff an extra allowance.</p>

<p>Contract — letters confirming oral contract — oral proof of .contract admissible — agreement to procure advance of money — when plaintiff entitled to agreed compensation.</p> <p>When letters written between contracting parties purport merely to confirm the terms of a prior oral agreement the letters are not controlling as to the terms of the contract, which may be shown by oral evidence which supplements or apparenly contradicts the letters. x</p> <p>When the parties entered into an oral contract whereby the plaintiff was to be paid §4,500 for procuring a lending company to advance §900,000 to purchase real estate and erect a hotel thereon and convey it to the defendant, the cóm■pensation to be earned when the agreement for the' advances was executed, but thetime of payment postponed until title passed to the lending company, the plaintiff’s right to recover after execution of the contract and the taking of . title by the lending company cannot be affected by .its failure to make further advances, or by any act of the defendant.</p> <p>A letter of the defendant’s agent after a conversation fixing the plaintiff’s compensation, purporting to be in confirmation thereof, but stating that the plaintiff was to receive one-half of one per cent of the moneys advanced, which percentage at the estimated amount of the advance would be the same as the sum agreed upon by the oral agreement, cannot have the effect of altering the t contract and' parole evidence of the terms thereof is admissible.</p>

Appeal by the defendant, The Henry Huber 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 13th day of June, 1906, striking out the amended answer of the defendant.

<p>Attorney disbarred — aiding escape of client out on bail—practicing under name of suspended attorney.</p> <p>An attorney who, seeking to prevent the extradition of a client, aids him in escaping from the State where he was admitted to bail, is guilty of unprofessional conduct and should be disbarred.</p> <p>So, too, an attorney who continues to practice under the name of a firm, one member of which is dead and the other suspended from' practice, is guilty of deceit and malpractice and should be disbarred. The attorney cannot justify himself by filing a certificate with the county clerk to the effect that he was continuing the business under the name of such firm in compliance with section 363 of the Penal Code, as the provisions of such section have no application.</p>

Appeal by the defendant, Edward S. Hosmer, as trustee in bankruptcy of Burnett Y. Tiffany, 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 24th day of May, 1906, denying the said defendant’s motion to resettle a prior order entered on the 16th day of April, 1906.

Appeal by the defendant, the Interürban Street Railway 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 22d day of August, 1906.

Appeal by the plaintiff, Mary Croce, as executrix, etc., of Andrew Croce, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Mew York on the 1st day of March, 1906, upon the dismissal of the complaint by direction of the. court after á trial at the Mew York Trial Term.

<p>Bill of particulars — action for breach of contract by vendor to complete:" building according to plans. .</p> <p>Á plaintiff suing to recover damages for the breach of a contract whereby the defendant was to complete the erection of buildings in accordance with- cer- ■ tain plans and to convey to the plaintiff, should be required ’ to give a bill oi. particulars specifying in what respects the buildings were not completed as required'by.the contract. .</p> <p>But particulars of damage alleged generally by plaintiff will not be required; '</p>

Appeal by the plaintiff, the Telephonine Company of America, 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 oh the 31st day of August, 1906, granting the plaintiffs motion to discontinue the above-entitled action, as imposes as a condition that the plaintiff stipulate that it will- not assign the claim herein for the purpose of a suit thereon, and that in case, of the failure…

<p>Appeal by the defendant, Agnes Hunt Conolly, 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 12th day of July, 1906, denying said defendant’s motion to compel the. receiver herein to pay her .the sum of $1,550*</p>

Appeal by t'he defendant, The Board of Education of the City of Hew York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 1st day of August, 1906, upon the decision of the court, rendered after a trial at the H ew York Special Term, sustaining the plaintiff’s demurrer to the answer herein.

Appeal by the plaintiff, Joseph Gordon, from an interlocutory 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 7th day of April, 1906, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the defendant’s demurrer to the complaint.

Appeal by the defendant, the Armenia Insurance Company of Pittsburgh, Pennsylvania, from an order of the Supreme Court, made 'at the Rew York Special Term and entered in the office of the clerk of the county of Hew York on the 3d day of July, 1906, ■denying the defendant’s motion to vacate an attachment herein upon the papers upon which it was granted.

Appeal by the plaintiffs, John A. Campbell and others, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 13th day of July, 1906, vacating an attachment herein upon the papers upon which it was granted.

Appeal by the plaintiff, the 'Commercial Wood and Cement Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 30th day of December,.1905, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on. the 22d day of December, 1905, denying the plaintiff’s motion for a new trial made upon the…

Appeal by the defendant, the Fifth Avenue Trust pompany, as executor, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Yew York on the 4th day of April, 1906, upon the decision of the court, rendered after a trial at the Yew York Special Term, setting aside an assignment of a certain life insurance policy.

Appeal by the defendant, Samuel D. Wohlfeil, from an order of the Supreme Court, made at the Hew York Special Term and entered iii the office of the clerk of the county of Hew York on the 27th day of July, 1906, restraining the prosecution by the deferidánt in the Municipal Court of certain summary proceedings.

<p>- Appeal by the defendant, Hugh De Haven, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 2d day of July, 1906, denying the defendant’s motion for a bill of particulars.</p>

Appeal by the defendant, Herbert G. Wool worth, from certain portions 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 30th day of July, 1906, adjudging the defendant guilty of contempt of court for the non-payment of alimony pendente lite and of counsel fees,

Appeal by the defendant, Emanuel Demos, from an order of the Court of General Sessions of the Peace in and for the city and county of Hew York, bearing date the 15th day of January, 1906, and entered in the office of the clerk of said court, affirming a judgment of the'City Magistrate’s Court of the city of Hew York, convicting the defendant of being a disorderly person in having abandoned Ms wife and leaving her in danger of becoming a burden upon the public.

Appeal by the defendants, John McCafferty and others, from a judgment of the Supreme Court in favor of the plaintiff arid certain of the defendants, entered in the office of the clerk of the county of New York on tlie 19th day of March, 1906, upon-, the report of a referee. , - ■■■'

Appeal by the defendant, William C. Dewey, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of August, 1906, overruling exceptions filed' to the report of a referee appointed in surplus money proceedings and modifying and confirming the report and directing the city chamberlain to pay to defendant Frederick T. Kellogg the sum of $38,547.39, and a further sum to reimburse him…

<p>Attorney disbarred.</p> <p>An attorney who procures admission to practice at the bar of this State on papers showing that he had been duly admitted to practice law in Texas and had practiced in that State for twelve years, but who suppresses the fact that .after leaving Texas and before coming to this State he had for several years practiced in Virginia under another name and had there been disbarred for forging a decree of divorce, is guilty of fraud' and deceit, and will be disbarred.</p>

Appeal by Louis Sasse, from aa 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 September, 1906, discontinuing the proceeding and directing the surrender and cancellation of liquor tax certificate No. 5,705.

Appeal by the defendants, Fernando E. De Murías and another, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 7th day of September, 1906, denying the defendants’ motion for leave to servé an amended answer.

.. Appeal by the defendant, the Interurban 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 29th day of January, 1906, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 30th day of January, 1906, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by The City of New York and others from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 31st day of January, 1905, confirming the first partial and separate report of the commissioners of estimate and assessment in the above-entitled proceedings.

■ Appeal by the defendant, Mary C. Depue, 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 10th day of July, 1906, granting the.plaintiff’s motion for a commission. to take the testimony of certain witnesses upon oral questions under section '893 of the Code of Civil Procedure.

Appeal by the defendant, the In term-ban Street Bailway Company, from a 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 11th day of December, 1905, upon .the verdict of a jury for ■ $3,000,- and also from an order entered in said clerk’s office on the 11th day of December, 1905,. denying the defendant’s motion for a new trial made upon the minutos. '

<p>Appeal by the plaintiff, The Citizens’ Central National Bank of New York, from an order of the Supreme Court, made at the New Y ork Special Term and entered in the office of the clerk of" the . county - of New York on the 26th day of" February, 1906, directing that the plaintiff make its, complaint more definite and. certain. _</p>

Appeal by the defendant, Theodore A.. Bingham, as police .commissioner of the city of Heiv York, from-an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the. clerk of the county of Hew York on the 22d day of June, 1906, granting the relator’s motion for leave to discontinue the above-entitled proceeding upon payment of costs, without prejudice to a new proceeding.

Appeal by the defendant, Alexander Alexander, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of October, 1906, adjudging the defendant guilty of contempt of court for a violation of a prior order herein.

Appeal by the defendant, the National Gum and Mica 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 8th day of October, 1906.

<p>Trial—assent to charge that three defendants are jointly liable — effect of failure to request instruction that two only may be held liable.</p> <p>A plaintiff who sues to recover for stock bought on account of one defendant, . who is alleged to have been acting as a member of a pool consisting of himself and two other defendants, and who tiles the case on the theory that all three - are jointly liable, and assents to a charge of the court to that effect, cannot maintain for the first time upon appeal that the court should have charged that the jury might find a verdict against the defendant who ordered the stock, together with either of the other defendants without holding both.</p> <p>Houghton and Patterson, JJ., dissented, with opinion.</p>

<p>Bankruptcy — when judgment against partnér discharged . by his bankruptcy.</p> <p>A judgment on a partnership debt standing against a former partner is discharged as to him by an adjudication of bankruptcy -when the judgment was listed in bis schedules, and it appears that the firm has been dissolved and that there are no assets thereof -remaining.</p>

<p>Judgment—when final judgment cannot be entered on reversed-interlocutory judgment against defendants who did not appeal therefrom — when severance of action not proper.</p> <p>When, in an action in equity brought by a creditor in behalf of himself and other creditors to enforce the statutory liability of directors of a corporation, an interlocutory judgment establishing the liability of directors has been reversed on an .appeal by some-of the directors and a new trial granted, which aew trial has never been had, the interlocutory judgment cannot be enforced even as against those directors who did not appeal therefrom, unless the action be severed.</p> <p>■Moreover, when said interlocutory judgment was reversed because of the failure to bring in all the necessary parties defendant, the action cannot be severed, for the adjudication determines that all the defendants must be sued in one action.</p> <p>The right of ther plaintiff to enter a final judgment on such interlocutory judg ment against one director, who did not appeal therefrom, must be determined upon the facts as they existed at the time of the entry of the interlocutory judgment, and such final judgment cannot be justified on the ground that facts have since developed which make the reasons given by the court for reversing the interlocutory judgment of no force.</p> <p>It seems, that such director could appeal from a final judgment now entered against him, and on that appeal review the former interlocutory judgment, although he did not join in the original appeal from the interlocutory judgment.</p>

Appeal by the plaintiffs, Solomon R. Jacobs and another, from ' an order of the Supreme Court, made at the Rew York Special Term and entered in the office of the clerk of the county of Rew York on the 28th day of June, 1906, granting the respondent’s motion for leave to amend its answer.

<p>Appeal by the plaintiff, WilliamW. Penfield, 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 October, 1906, vacating a temporary injunction theretofore granted herein and denying a motion for an injunction pendente lite.</p>

Appeal by the plaintiff, The Farmers’ Loan and Trust Company, as substituted trustee, etc., 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 27tli day of June, 1906, directing that the action eannot proceed unless revived by the legal representative of the cestui que trust under the will of William S. Pendleton, deceased.

Appeal by the plaintiff, Caroline Baechtpfrom 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 19th day of July, 1906, granting the respondent’s motion to be relieved from his purchase at a foreclosure sale and directing the return of a deposit made on said- purchase. . •

Appeal by the defendants, Herman A. Metz, as comptroller of the city of Hew York, and others, from an order of the Supreme Court, made at the How York Special Term and entered in the office of the clerk of the county of Hew York on the '25th day of September,-1906, continúan g pendente lite sen injunction enjoining payment, by the said comptroller of any claim of the Kelly Asphalt Block Company for repaving a certain section of. Broadway in Brooklyn.

Motion by the defendants, John D. Herldotz and others,, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the verdict of a jury in favor of the plaintiffs rendered by direction of the court after a trial at the Hew York Trial Term.

Appeal by the plaintiff, Charles P. Hill, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day. of July, 1906, granting the respondents’ motion to vacate as to them an order for the examination of defendants before trial.

Appeal by the defendants, Joseph H. Hoadley and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Hew York on the 27th day of October, 1905, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 30th day of October, 1905, denying the said defendants’ motion for a new trial made upon the minutes.

<p>Case — when resettlement not interfered with on -appeal — cost of reprinting case.</p> <p>A resettlement of a case by the trial judge whereby the title of the case is amended, and exhibits which had been omitted by the plaintiff are inserted, will not be interfered with by the Appellate Division.</p> <p>Tlie plaintiff, however, should be required to pay the cost of reprinting the record made necessary by such amendments.</p>

Appeal by the defendant, Henry Mold, 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 30th day of August, 1906, enjoining and restraining the defendant, during the pendency of this action, from buying and selling upon the premises mentioned in the complaint any beer other than that brewed by the plaintiff. „ '

Appeal by the defendant, The City of New York, 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 14th day of December, 1905, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the 13th day of December, 1905, denying the said defendant’s motion for a new trial made upon the minutes.

- Appeal by the defendant, Wilber F. De Pny, from an order of the Supreme Court, made at the Orange Trial Term and entered in the office of the clerk of the county of Orange on the 8th day of June, 1906, removing the cause from the Supreme Court to the County Court of Orange county.

Appeal by the plaintiff, John Braun, an infant, by John .Y. Braun, his guardian ad litem, from a judgment of the. Municipal Court of the city of Hew York in favor of the defendant, dismissing thécomplaint. -

<p>¡Principal and agent — when real estate broker not entitled to commissions.</p> <p>The owner of lands, pursuant to the terms of the contract, withdrew the plain- . tiff’s authority to find a purchaser and thereafter sold the premises to a third party, with whom he had negotiated prior to employing the plaintiff. The plaintiff had obtained an offer from the same party, but not at the selling price fixed by the owner. There was no allegation or proof of bad faith on the part of the owner in making the sale. In an action to recover commissions,</p> <p>Held,- that the plaintiff was not entitled to recover, having never procured a ■ purchaser willing and able to purchase upon the terms fixed by the owner.</p>

<p>Negligence — collision between surface car and vehicle — two versions of accident, both showing negligence.</p> <p>Although the manner in which an accident occurred is differently described by • different witnesses, yet if according to either version the defendant was negligent, the plaintiff is entitled to recover.</p> <p>The plaintiff’s servant attempted to drive across a street at a time when a surface car was one block away. The car, running at the rate of fifteen miles per hour, struck the rear wheel of plaintiff’s wagon, causing the death of the horse.</p> <p>Held, that the speed of the car justified a finding of negligence;</p> <p>That the driver was not guilty of contributory negligence, whichever of the two versions of the accident he' taken to be true, either in attempting to cross at right angles or in turning his team in the direction of the tracks in an effort to avoid a collision.</p>

Appeal by the plaintiffs, Louis Ettinghoff and another, from a judgment of the Municipal Court of the city of Hew York, in favor of the defendant dismissing plaintiffs’ complaint.

Appeal by the defendant, Wulf Hurwitz, from a judgment of the Municipal Court of the city of Hew York in favor of the plaintiff, entered upon a decision of the court rendered after a trial without jury.

Appeal by the plaintiff, Charles P. Burke, and by the defendant George W. O’Brien, from a judgment of the Supreme Court in favor of certain of the defendants, -entered in the office of the clerk of the county of Kings on the 17th day of ¡November, 1905, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the complaint in the above-entitled partition action, and also from an order entered in said clerk’s office on the 12th day…

AppBAL-by the plaintiff, Joseph Rogers, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 28th day of March,. 1905, upon the dismissal -of the complaint upon the merits by direction of the court after a trial at' the Kings County Trial Term, and also from an order entered in said clerk’s office on the 24,th day of March, 1905, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Hew York City Railway Company, from a judgment, of the Supreme Court'in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 7th day of December, Í905,'upon the verdict of a jury for $10,000, and also' from an order entered in said clerk’s office on the: 6tli -day of January, 1906, denying the defendant’s motion for a, new trial made upon the minutes. . . .

Appeal by the 'defendant, Olendenin Eckert, from a judgment, of dhe Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 12th day of January, 1906, upon' the verdict of a jury, and also , from'an order bearing date the 12th day of January,, 1906, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, The India Rubber and Gutta Percha Insulating Company, from a judgment of the County Court of Westchester county in favor of the plaintiff, entered in the office of the; clerk of the county of Westchester on the 23d day of September, 1905, upon the verdict of a jury for $250, and also from an order entered in said clerk’s office on the 26th day of September, 1905, denying the defendant’s motio'n for a new trial made upon the minutes:</p>

Motion by the defendant, the City Trust Company of Hew York, for a new trial, upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the verdict. of a jury in favor of the plaintiff, rendered by direction of the court after a trial at the Westchester Trial Term in December, ■1905.

Appeal by the defendant, The Sterling Silk Manufacturing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the count}' of Kings on the 6tli day of May, 1905, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 19th day of May, 1905, denying the defendant’s motion for a new trial made upon the minutes.

<p>Sale — evidence — when books of account admissible to show debits and credits — Statute of Limitations — part payment on running account.</p> <p>A defendant sued for value of groceries ordered from and delivered at his residence is presumed to have known of the orders and delivery.</p> <p>When it is shown that the plaintiff’s intestate, who sold the groceries, employed no bookkeeper, hut kept the books of account himself, such hooks, when proved to be accurate by persóns who have settléd their accounts thereby, are admissible in evidence. A clerk employed by the intestate to take orders on passbooks and deliver groceries, but who had no knowledge of the hooks of account, is not such a clerk as to render the books of account inadmissible in evidence.</p> <p>Such' books are admissible to show the credits as well as debits, for a credit entry made when its operation was against the interest of the party making it, and at a time when he had no motive to give false credits, is admissible in his favor, and is prima facie evidence of payment by the debtor, so as to take the account out of the Statute of Limitations.</p> <p>A payment made upon a running account within six years of action thereon is presumed to have been made upon the balance unpaid, and is sufficient to save the balance from the Statute of Limitations.</p>

<p>Appeal by the defendants, Charles R. Flint and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 19tli day of August,, 1904, upon the decision of the court rendered after a trial" at the Kings County Special Term, .with notice of an intention,to bring up for review upon such appeal. an interlocutory judgment entere'd in said clerk’s office on the 30th dav of March, Í903, and an order entered on the 26th day of August, 1904,</p>

<p>Appeal by the plaintiff, Maria Ghiglione, from:.a judgment of the Municipal Court of the city of. Hew York, borough of Richmond, rendered on the 14th day of February, 1906.</p>

Appeal by the .plaintiff, the Title Guai’antee and. Trust Company, from a judgment of the Municipal Court of the city of Hew Yofkj borough of Brooklyn, in favor of the defendant, rendered on the 23d day of February, 1906. '

Appeal by the plaintiff, the Westchester Fire Insurance Company, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the defendant, rendered oil- the 7th day of December, 1905., x

<p>Appeal by the defendant, the Hew York Evening Post 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 Queens on the 20th day of March, 1906, upon the decision of the court, rendered after a trial at the Queens County Special Term, . overruling the defendant’s demurrer to the complaint. .</p>

Appeal by William 0. Wilson, Acting Comptroller of the State of Mew York, from an order of the Surrogate’s Court of the county of Westchester, .entered in said Surrogate’s Court on the 7th day of July, 1906, reversing, in part, an order entered in said Surrogate’s Court on the'30th day of April, 1906.

Appeal by the plaintiff, Richard Gibbons, as surviving partner, etc., 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 23d day of February, 1905, upon the report of a referee dismissing the complaint upon the merits.

Appeal by the plaintiff, Christian Thieler, from a judgment of the Supreme Court in favor of the defendants, Mary Bayner and others, entered in the office of the clerk of the county of Kings on the 11th day of January, 1906, upon the decision of the court, rendered after a trial at the Kings County Special Term, adjudging the 5tli and 6th clauses of the last will and testament of Theodore Thieler, deceased, to be valid and effective.

Appeal by the plaintiff, The Rockland Lake Trap Rock Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Rock-land on the 2d day of February, 1906,'upon the verdict of a jury, and also from an order entered in said clerk’s office on the 2d day of February, 1906, denying the plaintiff’s motion for a new trial made upon the minutes. '

<p>Appeal by the defendant, the Central Railroad Company of Hew Jersey,, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 21st day of December, 1905, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the 11th day of December, 1905, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, James Clench, from a judgment of the Municipal Court of the city of Mew York, borough of Brooklyn, rendered on the 9fch day of January, 1906, in favor of the plaintiff for commissions upon the sale of defendant’s real estate.

Appeal by the defendants, Thomas Hughes 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 Westchester on the 14th day of October, 1905, upon the verdict of a jury setting aside the probate of a paper purporting to be the last will of John H. Underhill, deceased, and also from an order entered in said clerk’s office on the 4th day of November, 1905, denying the said defendants’ motion for a new…

Appeal by John II. Smith and another, individually and as administrators, etc., from a decree of the Surrogate’s Court of the county of Richmond, entered in said Surrogate’s Court on the 20th day of June, 1906.

Appeal by the defendants, De Elbert A. Reynolds.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 Kings on the 5th day of April, 1906, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling the defendants’ separate demurrers to the amended complaint.

<p>Pleading — sufficient allegation of unsafe scaffold to recover under Labor Law.</p> <p>A. complaint by a servant against his master for personal injuries,, which alleges that a scaffold was of -unsafe material and construction, permits a recovery, although it does not plead section 18 of the Labor Law and allege its violation. The fact that the liability of the master is .created or enlarged by statute does hot make the action a statutory one.</p>

Appeal by the defendants, Michael Donovan and another, as trustees, etc., and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings, on the 21st day of December, 1905, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 18th day of December, 1905, denying the defendants’ motion for a new trial made upon the minutes. Action of ejectment.

Appeal, by Walter K. Trelease, as. executor, etc., and Walter K. Trelease and another, as residuary legatees, from a decree of the Surrogate’s Court of the county of Kings, entered in said. Surrogate’s ,,Court on the 9tii day of February, 1906, settling the accounts of Mary A. Trelease, as executrix, and also from an intermediate order, entered in said Surrogate’s Court on the 9th day of February, 1906S, denying the application of Walter.

Appeal by the relator, Catherine Gabriel, from an order of the Supreme Court, made at the Kings County Special Term and entered in the offibe of the clerk of the county of Kings on the 24th day of May, 1906, denying the relator’s motion for a peremptory writ of mandamus requiring the respondents, or either of them, to approve the plans for two proposed tenement houses, which plans had been filed in the office of the deputy tenement house commissioner. ...

Appeal by the plaintiff, Cara R. Bleakley, from an order of the Supreme Court, made at the Westchester Trial Term and entered in the office of the clerk of the county of Westchester on the 3d day of July, 1906, denying the plaintiff’s motion to amend the verdict of a jury for $909.92 by adding interest thereto, making it .$1,157.69. ' The verdict was in terms “ for the full amount.” It was admitted on the trial that the plaintiff had proved damage to the amount of $909.92.

<p>Appeal by the defendant, the Mew York Inter Urban Water 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 Westchester on the 4tli day of May, 1905, upon the decision of the court, rendered after a trial at, the Westchester Special Term, overruling the defendant’s demurrer to the complaint.</p>

<p>Civil service — appointment of watchmen in city of New York when list of eligibles is exhausted— public emergency.</p> <p>The Civil Service Law was enacted to assist the civil service of the State, not to impede it.</p> <p>Hence, when the civil service list of those eligible to positions ns watchmen in the -Brooklyn Disciplinary School for Boys has been exhausted, the superjintendent of that institution may appoint other persons for a week and continue them from day to day as long as eligibles are not available.</p> <p>The need of watchmen in such institution is a “public emergency” within the meaning of section 4 of rule 12 of the municipal civil service commission.</p>

Appeal by the defendant, The Brooklyn Ferry Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kingsx on the 29th day of June, 1906, granting the plaintiffs motion to open- a default.

Appeal by the defendant, the New Amsterdam Gas Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 2d day of November, 1906, purporting to open a default against the plaintiff, vacating a judgment thereon dismissing the complaint and restoring the case for trial.

Appeal by the defendant, The Brooklyn Heights Báilroad Company, from a judgment of the Supreme Court in favor of the plain-, tiff, entered in the office of the clerk of the county of Kings on the 20th day of December, 1905, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 16th day of January, 1906, d.enying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Bartholomew Hunt, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, rendered on the 29th day of March, 1906. ■</p>

<p>Negligence—pedestrian injured by street car—view obstructed by pillars— sufficient evidence of freedom from contributory negligence.</p> <p>In an action by a pedestrian who was struck by a surface car at intersecting city streets where it appears .that the car approached rapidly along a track whose nearest rail was two and one-half feet from the curb, that the view in the direction from'which the car approached was obstructed for a block by pillars along the sidewalk placed one and one-half feet from, the curb, and that the pedestrian looked as she stepped from the curb and cleared the-line of pillars, the finding of the jury in her favor will not be set aside on the ground that- she was guilty of contributory negligence as a matter of law.</p> <p>Although under the circumstances the pedestrian could have obtained a view along the track by exercising greater care, such an error of judgment does not establish.the absence of ordinary care.</p>

Appeal by the defendants, The East River Gas Company of Long Island City and ahother, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Queens on the 6th day of October, 1905, upon the decision of the court, rendered after a trial at the Queens County Special Term, and also from an intermediate order, entered in said clerk’s office on the 6th day of October, 1905, denying the defendants’ motion to reopen the case for the purpose of…

<p>- Appeal -by the defendant, The Brooklyn Heights ¡Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the County of ¡Ricln mond on the 24th day of October, 1905, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on -the, -17th day of ¡November, 1905, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the.relator, Jessie S,- Jardine, from., an order^of the.

Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure. The plaintiff asks for specific performance of a contract by the defendant with her to purchase a lot of land in the city of Mount Vernon, Westchester county, 2sT. Y. The defendant claims that the title is not marketable. John C. Ferguson being the owner of the land executed with his wife a mortgage thereon to John C. Remsen in 1852 for $1,200.

Appeal by Edward D. Candee, as receiver of the Anglo-American Savings and Loan Association of ¡New York, 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 cóunty of Kings on the 11th day of Hay, 1906, vacating an order entered in the office of the clerk of the county of Albany on the 29th day of ¡November, 1905, settling and passing the accounts of the permanent receiver of a corporation in a…

<p>Court — Municipal Court has jurisdiction of action for deficiency after foreclosure of chattel mortgage.</p> <p>An action for a deficiency on a chattel mortgage after foreclosure and sale is not an action on the mortgage. Thus, section 139 of the Municipal Court Act, prohibiting actions on chattel mortgages in that court, does not apply, and the court has jurisdiction.</p> <p>The liability of a mortgagor for a deficiency on the foreclosure of a chattel mortgage arises as a matter of law h respective of the provisions of the mortgage.</p>

Appeal by the defendant, John T. Williams, from a judgment of the'Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 14th day of January, 1905, upon the report of a referee.

Appeal by the plaintiff, Gustav J. E. Tieck, 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 14th day of June, 1905, upon the verdict of a jury rendered by direction of the court after a trial at the Kings County Trial Term.

Appeal by the defendant, the Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in tile office of the clerk of the county of Kings on the 1st day of December, 1905, upon the verdict of a jury for $15,000, and also from an order entered in said clerk’s office on the 13th day of December, 1905, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Patrick Skelly, 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 31st day of July, 1905, upon the decision of the court rendered after' a trial at the Kings County Special Term.

Appeal by the defendants, James J. Barber and another, from a . judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 26th day of February, 1906, upon the decision of the court rendered after a trial at the Onondaga Special Term. ; The action was. commenced on the 27th day of August, 1902, to recover the damages sustained by the plaintiff because of the alleged frand of the appellants by which he was…

Appeal by the defendants, Mary Heilbron and others, from an interlocutory judgment of the Supreme Oourt in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of the county of Monroe on the 3d day of July, 1906, upon the decision of the court rendered after a trial at the Monroe Special Term, • ■ The action was commenced on the 24th day of November, 1905, for the partition of premises known as “ Schneider’s Island,” in Irondequoit bay, in…

<p>Appeal by the defendant, the Geneva, Waterloo, Seneca Falls and Cayuga Lake 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 Seneca on the 21st day of June, 1906, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 21st day of June, 1906, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>The action was commenced in Hovember, 1905, to recover damages for injuries sustained by the plaintiff, alleged to have been caused solely through the negligence of the defendant.</p>

<p>Municipal corporation — action against city for unpaid'salary— audit of claim necessary:</p> <p>An employee" of a city of the second class must, as a prerequisite to an action to recover salary unpaid, present his claim to the board of estimate and apportionment for audit as required by chapter 4 of the Laws of 1902.</p>

Appeal by the defendants, The City of Buffalo and others, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 19th day of June, 1906, denying a motion made by the said defendants upon the moving papers to vacate an order theretofore made at chambers ex parte, which directed that the deputy commissioner engineer of the defendant' city of Buffalo and an assistant ■ engineer of said city • appear…

<p>Master and servant—defect in setting up machinery—injury to employee — expert testimony of defect — proximate cause — notice to master of danger — assumption of risk.</p> <p>A defect in the adjustment of the parts of a machine constitutes a defect in the machine quite as much as if the parts themselves were defective.</p> <p>In an action by an employee to recover for an injury received from a block of wood which was. thrown out of a “shaping machine” brought upon the ground that the machine was improperly set up so that the spindles and knives revolved inwardly and toward the operator instead of outwardly and away from him, it is proper to admit expert testimony of machinists to show that the operation with the knives turning in was attended with more danger than if they had revolved outwardly.</p> <p>When the witnesses of both parties agree on the greater danger of this method of operation, a finding that the defendant’s negligence in so setting up the ■ machine was the proximate cause of the accident is justified.</p> <p>Where a servant complains of a defect in a machine and the master agrees that if the servant will continue to work, he will remedy the defect on -a certain day, the master assumes risk of injury, from the time of the promise until after the time agreed upon for repair. Hence, when on Monday the plaintiff complained to the defendant of the construction of his machine, but agreed to continue work upon defendant’s promise to repair upon Saturday,-the defendant is liable for an injury caused by such defect upon the intervening Thursday.</p>

<p>Appeal by the defendant, The American Telephone and Telegraph Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Sullivan on the 30th day of September, 1904, upon the verdict of a jury for $1,200, and also from an order entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.-</p>

Appeal by Sarah Eagan and another from a decree of the Surrogate’s Court of the county of Monroe, entered in said Surrogate’s Court on the 2d day of January, 1906, overruling objections filed to the account of John C. King, as executor of the last will and testament of said Patrick Eagan, deceased, and settling and adjusting his account as such executor.

<p>Appeal by the defendant, The Prudential Insurance Company of America, from a judgment of the. Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Erie on . the 27tli day of February, 1906, upon the verdict of a jury, and also from .an order bearing date the 23d day of February, 1906, and entered in said cleric’s office, denying the defendant’s motion for a new trial made upon the minutes. _</p>

Appeal by the defendant, The Village of Clinton, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Oneida, -on the 27th day of .March, 1906, upon the verdict, of a jury for $3,000, and also from an .order entered in said clerk’s office on the 28th day .of March, 1906, denying the defendant’s motion for a new trial made upon the minutes. 11

Appeal by the defendants,, William H. Curtis and another, from a judgment of the County Court of Onondaga county in favor of the plaintiff, entered in the office of the clerk of the county of .Oneida on the 27-th day of March,- 1906, pursuant to an order of said County Court, entered in said clerk’s office on the 27th day of March, 1906, affirming a judgment' of the Municipal Court of the-city of Syracuse, and also from the said order. pursuant to which the judgment appealed…

<p>Release—how rescinded — laches in making tender—weight of evidence - — trial — erroneous refusal to instruct juror.</p> <p>A person who has been the victim of fraud in the execution of a release or who was induced to sign while mentally incapable of understanding its import, may disaffirm it, but unless he rescinds promptly upon discovering that he has been victimized and offers to restore the consideration paid him, he can make no further claim.</p> <p>Hence, in an action to recover for injuries received in boarding a street car where the plaintiff has already given a release of his claim for damages against the company and has made no tender of the amount paid until upon the trial, a recovery is against the weight of evidence where the contention of the plaintiff that he was not conscious of making the release and had no knowledge of it until the trial, is.contradicted by the evidence of two physicians, a nurse and defendant’s claim agent, who'testify that plaintiff was rational when he executed the release.</p> <p>Where it appeared on the trial that chloroform was administered to the plaintiff on the night before the execution of the release and the court charged that this fact might be considered by the jury in determining whether or not he was rational, it was error for the court to interrupt a juror who attempted to question as to the length of time the effect of chloroform would last and to refuse to give instruction on the point or permit the counsel to refer to the evidence of a physician who had testified on that subject.</p>

Appeal by the defendants^ Frank Gebbie 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 Herkimer on the 7th day of March, 1906, upon the decision of the court, rendered after a trial at the Oneida Special Term, overruling the said defendants’ demurrer to the complaint.

Appeal by the defendants, Charles H. Perkins' 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 Wayne on the 28th day of April, 1906, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 8tli day of January, 1906, as modified by an order entered on the 28th day of April, 1906, denying the defendants’ motion for a new trial made upon the minutes.

<p>Assault and battery — no recovery for damages caused by fright of • plaintiff’s wife-r-pleading.</p> <p>A plaintiff suing to recover for assault and battery cannot recover special damages by reason of the fact that his wife, who witnessed the assault, was frightened and gave .birth to a stillborn clii-ld, whereby tbe plaintiff was deprived of her services and put to expense for medical attendance. Allegations setting ' out said facts will be stricken out as irrelevant and redundant.</p> <p>Kruse and Spring, JJ., dissented, with opinion.</p>

Appeal by the defendant, The Solvay Process Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 16th day óf May, 1906, upon the verdict of a jury for $12,500, and also from an order entered in said clerk’s office on the 17th day of May, 1906, denying the defendant’s motion for a new trial made upon the minutes. ■ ‘

Appeal by the defendant, the Rochester Railway Company, from a judgment of the County Court of Monroe county in favor of the -plaintiff, entered in the office of the clerk of the county of Monroe on the 7th day of July, 1906, upon the verdict of a jury for $300, and also from an order entered in said clerk’s office on the 10th day of July, 1906, denying the defendant’s motion for a new trial made upon the.minutes.

Appeal by the defendant, the Oswego County Fire Relief Association, from á judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Oswego on the lltli day of April, 1906, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 9th day of April, 1906, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Hew York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 5tli day of April, 1906, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the 27th day of' April, 1906, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Associated Press, from an inter- . locutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 19th day of July, 1906, upon the decision of the court, rendered after a trial at the Erie Special Term, overruling the defendant’s demurrer' to the complaint.

Appeal by the plaintiff, Harry G. Soper, from a judgment of the County Court of Erie county in favor of the defendant, entered in .the office of the clerk of the county of Erie on the 7th day of June, 1906, dismissing the complaint, and also from an order entered' in said clerk’s office on' the 15th day of June, 1906, denying the plaintiff’s motion for a new trial.made upon the minutes.

Appeal by the petitioner, the Cresset Electric Company, from a final order of the Supreme Court, made at the Herkimer Special Term and entered in the office of the clerk of the 'county of Oneida on the 3d day of August, 1906, confirming the report of a referee dismissing the proceedings and' determining the ownership of certain shares of stock of the petitioning corporation. ~ The proceeding was begun by an order to show cause made February 2, 1906, requiring the Utica Fire…

Appeal by the defendant, Wesley A. Bartlett,-from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Steuben on the 17th day of April, 1905, upon the verdict of a jury for $175, and also from an order entered in said cleric’s office on the 1st day of May', 1905, denying the defendant’s motion for a new trial made upo'n the minutes. The action is for malicious prosecution.

Appeal by the plaintiff, Wesley A. Bartlett, from a judgment of the County Court of Steuben county in favor of the defendant, entered in the office of the clerk of the county of Steuben on the 21th day of April, 1905,'reversing a judgment in favor of the plaintiff rendered by a justice of the peace of the town of Addison on the 1st day of December, 1901. •

Appeal by the plaintiff, Charles Kuhn, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Erie on the llth day of June, 1906,-upon the decision of the court, rendered after a trial at the Erie Special Term, dismissing the complaint upon -the merits.

Appeal by defendant, James Damick, from a judgment of the County Court of Ontario county in favor of the plaintiff, entered in the office of the clerk of the county of Ontario on the 26th day of May, 1906, pursuant to an order of said County Court entered in said clerk’s office on ,the 26th day of May, 1906, affirming a judgment of the City Court of Geneva rendered on the 22d of March, 1906, and also from the said order directing the entry of the' judgment appealed from.

Appeal by defendants, Frank P. Byrne and others, as executors, etc., of John Byrne, 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 Erie on the 9th day of July, 1906, upon the decision of the court, rendered after a trial at the Erie Special Term, ovérruling the said defendants’ demurrer to the complaint,, made on the ground of defect of parties defendant.

<p>Motion by the plaintiff, Margaret Wendell, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division' in the first instance upon a nonsuit granted at the close of the plaintiff’s evidence on a trial at the Erie Trial'Term in November, 1905.</p>

Appeal by the plaintiff, William Beyer, from a judgment of the Supreme Court in favor of the defendant, the International Aluminum Company, entered in the office of the clerk of the county of Erie on the 9th day of July, 1906, upon the decision of the court, rendered after a trial at the Erie Special Term, sustaining a demurrer to the complaint and dismissing the said complaint.

Appeal.by the defendant, The Masonic Life Association of Western New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 28th day of March, 1906, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 28th day of March, 1906, denying the defendant’s motion' for a new trial made upon tlie minutes.

Separate appeals by the plaintiff, The Lyons N ational Bank, and by the defendants Dorothea. Frank and others, from an interlocutory judgment of. tlie Supreme Court in favor of certain of the-defendants, entered in theoffice of the clerk of the county of Wayne on the 30th day of March, 1906, upon the report of a referee.

Appeal by the defendant, William A. Myers, from a judgment of the County Court of Wayne county, rendered on the 10th day of January, 1906, convicting the defendant of a violation of section. 31 of the Liquor Tax Law,* alleged to have been committed on the 24th day of June, 1905, in having sold intoxicating liquors without obtaining a liquor tax certificate; and also from orders made on the 10th day of January, 1906, denying the defendant’s motions for a new trial and in…

<p>Negligence — pedestrian struck after dark by street car —knowledge, of danger — failure to prove cause of death.</p> <p>■A person walking in the outskirts of a city after midnight on a dark, misty night, who attempts to cross the street in the middle of a block in front of an approaching car which was less than 100 feet away when she was four feet from the track and which was moving at a speed of from six to nine miles an hour with its headlight burning, is guilty of contributory negligence. On such a night a pedestrian should not assume that the motorman would see her and ' check his car. - ' .</p> <p>Under such circumstances it is immaterial that the ground near the tracks was rough, for such person would be chargeable with contributory negligence in taking a chance of crossing an unknown place in the short time at her disposal as well as in attempting to cross a place'which she knew to be rough.</p> <p>A recovery for the death of such pedestrian cannot be sustained on the ground that the defendant was negligent in moving the car while she was-underneath" It before her body had been located, when the plaintiff has not affirmatively shown that death Was caused by such action, and the judgment will be reversed where, under the charge of the court, the verdict may have been reached by a finding that deceased was killed by the collision.</p>

<p>Will — testamentary incapacity and undue influence — bequest to attorney— when Appellate Division will order questions to be tried by jury.</p> <p>Upon an appeal from a judgment of the surrogate refusing the probate of a will on the ground of undue influence and testamentary incapacity, if the Appellate : Division is not satisfied with the decision of the surrogate,' and if doubts exist as to his conclusions ■ drawn from the evidence, the Appellate Division will reverse the decision and order the issues to be tried before a jury.</p> <p>When a will is drawn by one in confidential relations with the testator, as an . attorney, and contains, a bequest to the attorney, the instrument is looked Upon with suspicion, and the burden is upon the legatee to show that the tes-, iator understood the contents of the will and that it expressed his uninfluenced intention. . ■</p> <p>When the relations of a testator to liis • attorney are unusually close, while the fact necessitates care on the part of the. court to see that the instrument expressed the intention of the testator, the nearness of the relationship also furnishes a substantial reason for a gift to the attorney.</p> <p>When on a proceeding for the probate of a will in which a gift is made to' the testator’s attorney and which ignores a brother of the testator, it appears, that ’. before the execution of the instrument the testator was. seen reading a paper - resembling the Will; that he suggested an amendment thereto, which was sub sequently made; that the brother of the testator was a man of property equal to that of the testator; that the latter was a man of extensive business connec- , tions and of great force of character; that there was some evidence of strained relations between the testator and his brother; that the widow of the testator and his sister, who were the chief beneficiaries, and who would have taken even a larger amoünt had- probate been refused, were nevertheless in favor of probate,, a decision of the surrogate refusing probate on the ground of undue influence on the part of the attorney is, so unsatisfactory that the Appellate ., Division will order the. issue to be tried before a jury. -</p> <p>So, too, a finding of the surrogate that the testator lacked testamentary capacity is unsatisfactory when no physician or other.person who saw the testator at the time of the execution of the will gave any evidence of lack of testamentary capacity, but, on the contrary, he is shown to have transacted, other-legal business subsequent to the execution of the will, and the only evidence as to testamentary incapacity is expert testimony based on hy pothetical questions. Under such circumstances the Appellate Division will order the issue of testamentary incapacity to be tried before a jury;</p>

Appeal by the defendants from an order of the Supreme Court, entered in the office of the clerk of Nassau county on the 17th day of May, 1906, denying their motion to vacate and set aside a levy made under a warrant of attachment issued herein, and to vacate the attachment itself. Order affirmed, with ten dollars costs and disbursements.

<p>Appeal from an order denying a "motion, for the inspection of books and papers.</p>

<p> Dismissal of complaint—order modified on terms. </p>

Appeal by the plaintiff from a judgment of the Supreme Court, entered in the clerk's office of the county of New York on'the 12th day of March, 1906, dismissing the plaintiff’s complaint on demurrer.

<p>Motion to dismiss, appeal.</p>

<p>Appeal from a judgment in favor of the plaintiffs and agaiust the defendant.</p>

<p>Order affirmed, with ten dollars costs and disbursements. No opinion, Hirschberg, P. J., Woodward, Jenlcs and Hooker, JJ., concurred; Gaynor, J., read for reversal.</p> <p>Appeal from an order granting the plaintiff a bill of particulars.</p>

<p>Order affirmed, with costs. No opinion. Hirschberg, P. J., Hooker and Rich, JJ., concurred; Gaynor, J., read for reversal, with whom Miller, J., concurred.</p> <p>Appeal from an order of the trial judge setting aside a dismissal of the complaint at the close of the case and granting a new trial.</p>

Judgment and order of the County Court of Queens county affirmed, with costs. No opinion. Hirschberg, P. J., Woodward, Hooker and Miller, JJ., concurred; Rich, J., read for reversal. Appeal by the defendant from a judgment of the County Court of Queens county, entered in the office of thg clerk of said county on the 18th day of January, 1906, and also from an order denying defendant’s motion for a new trial, entered in the same office on the 13th day of February, 1906.

Interlocutory judgment affirmed, with costs, with leave to the defendant to plead over upon payment of the costs of the demurrer and of this appeal on 'opinion of Andrews, J., delivered at Special Term. All concurred', except Williams and Hash, JJ., who dissented in an opinion by Nash, J. The following .is the opinion of Andrews, J. :

<p>Evidence—interrogatories — proper method, of verifying minutes by testimony of stenographer — refreshing the memory.</p>

<p>Master and servant—fireman on railroad engine hilled by collision — negligence of train dispatcher—promulgation of proper rules.</p>