Volume 116 — New York Appellate Division Reports

Appeal by the plaintiff, The Ulster County Savings Institution, from portions of a'judgment of the Supreme Court in favor of cer« tain of the defendants, entered in the office of the clerk of the county of Ulster on the 3d day of. July, 1906, upon the decision of the court adjudging that the defendants, • the administrators of Solomon Deyo, are not liable for a deficiency upon the foreclosure of a mortgage sought to be foreclosed in the action!

Appeal by the defendant, the Brandow Printing Company, from •a judgment of the County Court of Albany county in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 15th day of May, -1906, upon an order of xsaid .Comity- Court, entered on the 15th day of May, 1906, affirming a judgment of the City Court of Albany, rendered on the 20th day of February,. 1906, and also-from the said order of the County Court.

Appeal by the plaintiff, the United States Condensed Milk Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the ( county of Ulster on the 7th day o.f Hay, 1906, after, a trial at the Ulster Trial Term, This action is brought by the plaintiff to recover penalties allowed by the law by reason of the defendants having in their. possession ninety-three milk cans which belonged to the plaintiff and which ■ liad the…

<p>Appeal by the defendant,- Charles Barrett, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Saratoga on the 17th day of April, 1906, upon the report of a referee. .</p> <p>This an appeal from a judgment in-favor of the plaintiffs upon the report of a referee. The referee finds that the plaintiffs and the defendant entered into an oral agreement on or about January 1, 1903, by which the plaintiffs were to move upon defendant’s farm, care for him and provide him a home thereon, with neces^ sary board and clothing and other necessities, and do the work- on such farm except such work as the defendant himself might perform, in consideration of which the defendant agreed to convey said farm and premises to the plaintiffs. The plaintiffs removed to the farm, entered upon the. performance of the agreement, and on or about October 20,1904, the defendant repudiated the agreement and caused them to remove from, the farm, and the referee allows the plaintiffs for boarding the defendant fifty-five weeks at three dollars and fifty cents per week and. for the various items of clothing, expenditures, and the work performed by Bovee upon the farm. Mrs. Bovee performed the usual services of a woman in the household ; Mr. Bovee performed no real services on the farm except a few days in haying, for which the referee awards him compensa-' .tian at their full value. At the time of removing from the farm the hay and grain was left thereon except such as had been consumed by the stock. The plaintiffs had the use of the house and buildings and the garden, and removed some potatoes and apples from the farm and used the proceeds of the farm, such as butter and vegetables, in supporting the family so far as they would go, and sold butter and bought provisions and other things with the proceeds. With the farm the defendant furnished two cows, as- the plaintiffs claim, and three cows as he claims, the plaintiffs claiming to own'one of the cows themselves. The plaintiffs brought upon the farm a colt and some pigs and hens, and took them with them when they left. The defendant claims the rental value of the farm was about one hundred and fifty dollars per year; the plaintiffs claim its value was about sixty dollars per year. It is agreed that if the occupants did not get the full proceeds of the farm the rent Would be less, and the value of the house and garden would be from- thirty-five dollars to sixty dollars a year.</p>

Appeal by the defendants, William A. Harder 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 Columbia on the Tth day of February, 1906, upon the decision of the court, rendered after a trial at-the Rensselaer Special Term granting an injunction restraining -the defendants, among other things, from manufacturing shirts •and‘ drawérs in the bounty tif Columbia' ‘ with certain exception's, and from…

.'.Appeal by:the defendantsyBarah A--Richards and another, from a judgment of-.the> Supreme -Gourt ih.iayor¿of the-(plaintiff, entered of April, 1904,. upon the decision' of the court, rendered after a trial at. the Madison. Trial Term,.the .jury having been discharged, both . parties having requested the direction of a verdict. The action.was to recover upon a promissory note of $1,000 and interest, given by the defendants to the plaintiff.

Oeetiorabi issued out of the Supreme Court and attested on the 26th day of .April, 1898, directed to James A. Boberts, as.Comptroller of the State of ¡New York, commanding. . im to certify and return to the office of the clerk of the county of Albany all and singular his proceedings had relative to the tax imposed upon the relator for the year ending ¡November 1, 1896.

Appeal by the plaintiff, William Redhead, from a jndgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Rensselaer on the 2d day of November, 1905, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case upon a trial at the Rensselaer Trial Term. Upon a trial before the court and a' jury the plaintiff was non-suited and he appeals from the judgment rendered thereon.

<p>Municipal corporations—city of Oneida—when bonding of city to pay sewer assessment not authorized.</p> <p>The provisions of the charter of the city of Oneida authorizing the common council to make extraordinary expenditures “ for the benefit of the city "and after an affirmative vote by taxpayers to bond the city, does not warrant the issuance of bonds to pay a sewer assessment already levied upon private owners benefited and adjudged to be a valid assessment in a prior action. It is not “ for the benefit of the city ” to assume assessments laid on individuals.</p>

Appeal by the defendant, the. International Paper Company, from a judgment ef the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Washington on the 11th day of May, 1906, upon the verdict of a jury for $4,500, a:id also from an order entered in said clerk’s office on the 10th day of May, 1906, denying the defendant’s motion for a new trial made upon the minutes.

. Appeal by Edward EL. Wise and another, individually and as copartners, etc., from an.

Application by the Ticonderoga Union Terminal Railroad Com- pony, under section 59 of the Railroad Law (Laws of 1890, chap, 565, added by Laws of .1892* chap. 676, and amd. by Laws of 1895, ehap. 545), for an order directing the Board of Railroad Commissioners of' the State of New York to issue a certificate of public • convenience-and a necessity for the-construction of'a proposed road from Addison Junction upon the line of the New York and Canada Railroad Company, now…

<p>Appeal by James IE Caldwell and others from an order of the Supreme Court, made at the Clinton Special Term and entered in the office of the cleric of the county of Washington on the 21st day of May, 1906* setting aside the election of directors of - the Co-operant Telephone Company'at a meeting held on the 20th day of .December,. 1905.</p>

Appeal by the defendant,' the Farmers’ Fire Insurance Association; etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Albany on the 22d day of January, 1906, upon the decision of the court rendered after a trial at the Albany Trial Term', certain' questions of fact having been submitted to the jury.

Appeal by Jacob B. Crane, an owner of land adjoining a proposed crossing, from a' decision of the Board of Bailroad Commissioners of the State of New York, rendered on the 24th day of' Aprii, 1906, determining that the crossing at grade of the railroad operated by the Delaware, Lackawanna and Western Bailroad Company by' a highway in tíie town of Vestal, Broome county, which highway grade crossing is located just north- of the Vestal station on said railroad, shall be…

Appeal by the plaintiff, Jacob 0.. Palmer, as supervisor, etc,, from an interlocutory judgment of the Supreme Court in favor of the defendants Roods and Kathan, entered in the office of tire cleric of the county of Saratoga on the 23d day of March, 1906, upon the decision of the court, rendered after a trial' at the Saratoga Special Term, sustaining the said defendants’ demurrer to' the complaint.

<p>Appeal by the plaintiff, the Town of Hadley, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Saratoga, on the 15th day of June, 1906, upon the decision of the court, rendered after a trial at the Warren Special Term, sustaining the defendants’ demurrer to the complaint.</p>

<p>Railroad — extension of lines on village street denied.</p> <p>When an incorporated steam railroad company seeking permission to extend its ■ lines along the streets of a village under section 11 of the Railroad Law -shows nothing in favor of its application,, which is strenuously opposed by the village authorities, the application should not be granted.</p> <p>Especially is this so when there appears to be an attempt to do business as a street surface railway without obtaining the consent of the property owners and,local authorities as required by section 91 of the Railroad Law.</p>

. Appeal by the plaintiff, Lewis C. Trombly, as administrator, etc., from so much of a judgment of the Supreme Court in favor of the defendant, The People of the State of New York, entered in the office of the clerk of the county of Franklin on the 22d day of December, 1905, upon the decision of the court rendered after a trial at the Franklin Special Term, as decrees the respondent to be the owner of certain described lands, free and clear from the lien of a certain…

Appeal bv the defendants, Daniel M. Lounsbury and others, as executors, etc., from an order 01 the Supreme Court, made at the Otsego Special Term and entered in the office of the clerk of the county of Otsego on the 19th day of April, 1906, denying the said defendants’ motion to vacate so much of a judgment of foreclosure and sale herein as determines that the reorganization committee of ■the defendant railway company are the owners- of certain bonds thereof, and awards…

<p>■Bills and notes — evidence — maker may show equities as against payee — wife joint maker with husband — when wife liable as surety.</p> <p>•As between the payee and joint maker of a promissory note the -maker may show the real agreement between the parties at the time of execution as to her liability on the instrument.</p> <p>But when a wife signs as a joint maker with her husband on a note given for his debt, the instrument raises the presumption that she bound herself as a surety. She is not relieved from liability on the instrument by mere evidence that her husband told her in the presence of the payee to “sign it and you will never have to pay it,” and there was no promise of freedom from liability made by ‘ the payee, as the statement would have been true had the husband paid the note. Oontra, if it be shown that the signature was made only for the benefit of the payee to enable him to discount the instrument at a bank.</p> <p>Appeal - by the plaintiff, Wilson W. Hover, from a judgment of the Supreme Court in favor'of the defendant, entered in the office of the clerk of the county of Columbia on the 23d day of February, 1906, upon the verdict of a jury rendered by direction of the court based upon a special verdict of the jury in favor of the defendant in reply to- a specific question submitted to the jury, and also from an order entered in said clerk’s office on the 24th day of March, 1906. denying the plaintiff’s motion for a new trial made upon the minutes</p>

<p>Appeal by the defendant, James H. Hyde, from so much of an order of the Supreme Court made at the Broome Special Term and entered in the office of the clerk of the county of Broome on the 8th day of June, 1906, as settles and allows certain cross-interrogatories propounded by the plaintiff to said defendant.</p> <p>Also a motion by-the plaintiff to dismiss the appeal upon the ground that said order is not appealable.</p>

Certiorari issued out of the Supreme Court and attested on the 29th day of January, 1906, directed to Clarence L. King and others, as former town auditors of the town of Altamont, in the county of Franklin, N. Y.', and others, commanding them to certify and return to the office of the clerk of the county of Franklin all and singular their proceedings had in relation to their disallowance and rejection of a claim-of the relator against such town for lack of jurisdiction to…

Appeal by the petitioner, James W. Hellis, from an order of the ■Supreme Court, made at the Saratoga Special Term and entered in the office of the clerk of -the county of Montgomery on the 22d day of August, 1906, denying the petitioner’s motion to compel the respondent to pay over certain moneys.

<p>Tax—franchise tax on foreign insurance corporation — tax may be computed upon all premiums received — constitutional law.</p> <p>The franchise tax levied upon a foreign insurance corporation authorized to do business an this State is not upon its property but on the privilege enjoyed.</p> <p>Since the amendment to subdivision 5 of section 189 of the Tax Law made by chapter 94 of the Laws of 1905, the franchise tax of a foreign life insurance company doing business here may be calculated upon the premiums received during the past year and not merely upon premiums received from new business. , . '</p> <p>Said amendment of 1905 is not unconstitutional even if applied to business done • before its passage as the preceding statutes provided for taxation at the same rate.</p> <p>Certiorari issued out of the Supreme Court and attested on the 16th day of May, 1906, directed to Otto Kelsey, as Comptroller of the State of New York, commanding'him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings had in denying the application of the relator for a resettlement and readjustment of an assessment for a franchise tax.</p>

Appeal by the defendant, the Standard Light, Heat and Power Company of Hnadilla, H. Y., from a judgment of the Supreme. Court in favor of the- plaintiffs, entered in the office of the cleric of-the county of Broome on the 5tli 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;5th day of January, 1906, denying the defendant’s motion for a new tidal made upon the minutes.'

<p>Election Law — statutory duty of inspectors of town elections to canvass ballots enforced by mandamus — attorney not estopped on appeal by contention on points of law at trial.</p> <p>When inspectors of election at a town meeting have failed to perform their statutory duty to count and canvass the ballots and the town clerk lias not entered the result upon his minutes, the inspectors and clerk will be required by mandamus to convene and discharge their statutory duties.</p> <p>Although mandamus is asked for to compel the inspectors to declare and the. clerk to enter the result instead of asking a recounting of the ballots, the latter relief is fairly within the prayer of the petition, and the proceeding should not fail because of such mistake.'</p> <p>An attorney’s statement of his understanding of the law at trial does not estop him from changing his view upon appeal.</p> <p>Appeal by the relator, William Sturtevant, from -a final order of the Supreme Court,, made at the Clinton Special Term and entered the office of the clerk of the county of Essex on the 6th day of' April, 1906, dismissing an alternative writ of mandamus theretofore issued in this proceeding.</p> <p>The relief sought by this proceeding is a peremptory writ of mandamus to the defendants Armstrong, I)eyo and Harrington, as .inspectors of the town meeting, held in the town of Horth Hudson, Essex county, on the 7th day of MarCh, 1905, to make and sign an original statement of the canvass of the votes thereat showing the result of the election of officers at said town- meeting and requiring, the defendant Carson, as clerk of said meeting, to enter the result in</p> <p>his minutes and file the same,in his office. On the trial of the issues raised- by the return - to the alternative writ of mandamus such writ was dismissed; and from' such final order of dismissal the relator has appealed.,</p>

Appeal by the defendant, the Hill-Warner-Fitch Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 29th day of January, 1906, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s'office on the 29th day of January, 1906, denying the defendant’s motion for a new trial made .upon the minutes.. • The plaintiff was injured while operating a sizing machine in…

<p>¡Railroad — liability for negligence when train is under control of third person — injury resulting from obstruction of street at railroad station — violation of statute.</p> <p>Where a railroad company enters into a contract with a union station company for the use of the facilities of the station, and surrenders the control and placing of its trains and authority to direct its trainmen to the station company, it has a right to assume that the trains will be properly controlled and is not liable for injuries resulting from the manner in which the station company'performs its duties.</p> <p>Hence, under such cirdumstances, a recovery against the railroad company for injuries to a pedestrian received from a runaway horse which became frightened at a train which had been placed by the station company so that it extended beyond the station, an'd partially obstructed a, city street, should be reversed. The fact that the train had occupied this position for more than five minutes in violation of statute does not charge the railroad company with negligence.</p>

Appeal by the plaintiff, Daniel Clark, an infant, by William P. Clark, his guardian ad litem, • from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Essex on the 5th day of December, 1905, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the Essex Trial Term.

Appeal by the defendants,. Charles M. Hicks and others^ from an order, made by the county judge of Broome county and entered in the office of the clerk of the county of Broome on the 6th day of April, 1906, denying the defendants’ application to vacate a warrant of attachment against their property, which application was inad^ on the papdrs on which said warrant was granted. The warrant of attachment was granted because of the non-residence of the defendants.

Appeal by the defendant, the Remington Salt Company, from an interlocutory judgment of the Supreme Court in favor of the -plaintiff, entered in the office of the cleric of the county of Tompkins on the 19th day of July, 1906, upon the decision of the court, rendered after a trial at the Tompkins Trial and Special Term (certain issues being submitted to the jury), dismissing an equitable counterclaim for the reformation of a contract because of a mutual mistake of parties.

<p>Pleading—master-and. servant — bill of particulars showing conduct for • which servant was discharged — oral statement insufficient..</p> <p>When a plaintiff .sues on a breach of contract of employment as assistant superintendent of the defendant, and the latter alleges justification because “.for a long time" * * * he. had persisted in a course of conduct antagonistic to the defendant’s superintendent and injurious to and destructive of discipline among the employees,” the plaintiff .is entitled to a bill of particulars specifying the nature and items of the-“course of conduct.” inferred to in the answer. A.verbal statement of'the conduct complained of. previously- made by the defendant does not take the place of a bill of particulars, and is no ground for refusing one.</p>

Appeal by the Municipal Civil Service Commission of the city of Elmira, New York, from an order of the Supreme .Court, made at the Broome Special Term and entered in the office of the cleric of the county of Chemung on the 9th day of July, 1906, granting the petitioner’s application for a peremptory writ of mandamus. In the month of May, 1900, the respondent Lazenby was appointed to the position of roundsman on the police force of, the city of Elmira.

Appea°l from an order, made, at the New York Special Term, denying the application of William S. Bennet to set aside the determination of the board of elections of the city of New York overruling objections to certificate of nomination of Francis E. Shobér for member of Congress, seventeenth Congressional district.

<p>‘ Election Law—certificate of nomination of candidates — when number of signatures insufficient —• right of name of candidate to appear in party column.</p> <p>A certificate nominating an independent candidate for Congress must have 1,006 -signatures or over, and when a sufficient number of signatures have been attacked by competent evidence establishing that the signers 'were non-residents of the districts so as to bring the number of signatures below 1,000, affidavits stating that certain sheets containing names more than enough to supply the deficiency have been abstracted or lost are insufficient when the names of ■ the.alleged signers are not given and there is no proof that any of them did sign or that the papers were properly executed and acknowledged.</p> <p>When an independent party, like the' Independence League,-has established an organization consisting of an executive committee for a whole city and local committees for various smaller political subdivisions with proper officers, the affidavits of the executive officers of such body are competent evidence as to whether particular candidates are the legitimate candidates of that party and entitled to the benefit of the party name and emblem.</p>

<p>Election. Law — when nominees entitled to be placed in separate column with emblem — certificate nominating candidate to fill vacancy — candidate of other party cannot be named.</p> <p>When a petition, signed by independent electors and which includes" the entire Democratic ticket, is supported by a sufficient number of electors to entitle the candidates to a place on the official ballot, it is entitled to be placed in a separate column Under a name and emblem to be selected as directed by tlu statute.</p> <p>The Election Law provides that when there have been original party nominations, the nominations are complete on the filing of the certificate, and when a nomination has been declined the vacancy must be filled by the committee selected by the nominators. But as such committee having the right to fill vacancies is prohibited from selecting any person who has been named as a candidate by any other political party, it follows that a candidate who is nominated by another party cannot be placed under the name and emblem by filing a certificate of nomination by independent voters. What cannot be done directly by the committee cannot be done indirectly by a certificate of nomination.</p>

<p>Election Daw proper party to review action of board of elections' on certificate of nomination.</p> <p>- When objections t.o a certificate of nomination are sustained by the board of elections a review may be had only on .the application of the candidate, or of the committee representing the party which placed him. in nomination.</p>

Appeal by the petitioner, Maynard M. Clement, as State Commissioner of Excise, from an order of the Supreme Court made at the New York Special Term, entered in the office of the clerk of the county of New York on the 17th day of August, .1906, denying the petitioner’s motion to cancel liquor tax certificate Mo. 2658.

.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 New York on the 26tli day of March, 1906, upon the verdict of a jury for $1,200, and also from an order entered in said clerk’s office on the 23d day of March, 1906, denying the defendant’s motion for a now trial made upon the minutes,

<p>Negligence — driver of truck injured on street car tracks — verdict against evidence as to cause of injury.</p> <p>When the plaintiff's testimony that a street car ran into the rear end of his truck and threw him off is only confirmed by a witness who saw the wagon immediately after the accident, and testified that the hind wheel had evidently been struck by something, and is contradicted by several unimpeached witnesses, one of them an eye-witness who testifies that the accident occurred through the wheel of the truck skidding along the car track when no car was in sight, a verdict for the plaintiff is against the weight of evidence.</p>

Appeal by the defendants, Frank A. O’Donnel' and others, as commissioners, etc., from a final order of the Supreme Court, made at the New York Special Term and entered' in the office of the clerk of the county of New York on the 16th day of March, 1906, sustaining a writ of certiorari and reducing an assessment.theretofore made against the relator.

Appeal by the plaintiff, Wilmot H. Smith, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 6th day of December, 1905, upon the report of a referee.

Appeal by the defendant, Martin Conlon, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, rendered on the 13tli day of April, 1904, ■ convicting the defendant of the crime of grand larceny in the first degree.

Appeal by the defendant, Samuel Roller, from a judgment of the Court of General Sessions of the Peace in and for the county of Rew York, rendered on the 27th day of .June, 1905, convicting the defendant of grand larceny in the second degree. ' I

Appeal by the defendant, The New York Central and Hudson Elver Eailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 12th day of January, 1906, upon the verdict of a jury for $1,800, and also from an order, as resettled, entered in said clerk’s office on the 16th day of January, 1906, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by William H. Chidester, Jr., and another, as executors, etc., of Nathaniel H. White, deceased, and another, from an order of the Surrogate’s Court of the county of New York, entered -in said Surrogate’s Court on the 24th day of March, 1906, affirming a prior order which assessed a transfer tax upon the estate of said decedent, and also front, an order entered in said Surrogate’s Court on the 12th day of June, 1906, denying the appellants’ motion ¡to resettle the…

<p>Tax—bonds owned by foreign corporation ¡not taxable as property of stockholders! j</p> <p>In a proceeding to assess a transfer tax it appeared that the decedent died a resident of a foreign State. ' At the time hé was president of a foreign -corporatian, which had contracted with another foreign corporation to sell its property, to be paid for in the stock and bonds of the purchaser, which were to be deliv- ■ • ered first to the selling company and subsequently divided among-its stockholders. The purchasing company mortgaged its property to. a New York corporation as trustee to secure its bonds,(but at the, time of file decedent’s ■ , death no bonds had yet been issued, ,</p> <p>Held, that decedent’s interest in the bonds was not taxable, as they had not vested in him personally at the time of his death:</p> <p>That prior to any distribution to the decedent personally as a stockholder, the bonds were to be owned by the corporation of which he was president, and that the title of said corporation could not be divested except by action of its directors, which action had not been taken;</p> <p>That the property of a foreign corporation canndt be considered to be the property of its stockholders for the purpose of taxation.</p>

Appeal by the defendants, Eva A. Bell 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 ¡New York on the 12th day of January, 1906, upon the decision of a court rendered after a trial at the ¡New York Special Term, overruling the defendant’s demurrers to the complaint.

Appeal by the defendants, Nellie McBeth 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 New York on the 27th day of April, 1906, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term.

■ Appeal by the defendant, Ludwig Stettheimer, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 12th day of January, 1906, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 18tli day of January, 1906, denying the defendant’s motion for a new trial made upon the minutes.

<p>Partnership.—pleading—answer alleging that contract of dissolution was executed by defendant’s agent without authority — allegations not constituting defense.</p> <p>When a plaintiff sues a former copartner to restrain him from using the firm name, and bases his complaint on a breach by defendant of a contract made on dissolution, it is a good-defense to allege that the contract was executed by the defendant’s attorney in fact contrary to express instructions which were known to the plaintiff. When the plaintiff sues on a contract the defendant may . plead that the contract was never executed and is not binding upon him.</p> <p>But under such circumstances it is no defense to allege that the plaintiff paid the defendant’s agent money as an inducement to execute the contract against instructions, and a demurrer to such defense is good.</p> <p>Nor is it a defense to allege that the plaintiff notified the postal authorities to deliver the firm’s mail to' him after dissolution, which was done, whereby the defendant was damaged, for the plaintiff had as much right to the mail-of the. firm after dissolution as the defendant.</p>

Appeal by the defendant, George B. Boyd, 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 New York on the 3d day of January, 1906, upon the verdict' of a jury, and also from an order entered in said clerk’s office on the 3d day of January, 1906, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Bradford Realty Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 11th day of January, 1906, upon the decision .of the court, rendered after a trial at the New York Special Term, overruling the defendant’s demurrer to the second amended complaint.

Appeal by William F. Moore, as executor, etc., from a decree of tlie Surrogate’s Court of the county of New York, entered, in said Surrogate’s Court on the 9th day of April, 1906, settling the accounts of the trustees herein and directing the distribution of the principal and income of the trust estate.

Appeal by the defendants, William McAdoo 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 24th day of August, 1906, denying the defendants’ motion either to vacate an injunction pendente lite granted herein on the 29th day of December, 1905, or for a reargument of the motion for the injunction or for a resettlement of the injunction order by inserting a provision granting…

Appeal by the defendant, V. J. Hedden & Sons 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 comity of Hew; York on the 28th day of August, 1906, denying the' defendant’s motion to dismiss the complaint for failure to prosecute the action, upon condition that the plaintiff pay ten dollars costs of the motion and place the cause upon the Trial Term calendar for October, 1906.

Appeal-by the plaintiffs, Max Baer and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 16th day of November, 1905, upon the verdict of a jury rendered by direction of the court after a trial, at the New York Trial Term, and also from an order entered in said clerk’s office on the 21st day of November, 1905, denying the plaintiffs’ motion for a new trial made upon the minutes.

Appeal by the defendants, John Murphy 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 16th day of April, 1906, upon the decision of the. court, rendered after a trial at the New York Special Term, determining the title to certain real property.

<p>Appeal, by the plaintiff, John Carey, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of Rew York on the 24th day of April, 1906, which order reversed a judgment of the City Court of the city of New Torlt in. favor of the plaintiff, entered in the office of the clerk of said court on the 1-ftli day of November^ 1905, upon the verdict of a jury for $700, and an order of said City Court entered' on the 15th day of November, 1905, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by Bernard C. Murray from an order of. the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of June, 1905, resettled by an order bearing date the 21st day of March,' 1906, and entered in' said clerk’s office, in so far as said order confirms that portion of the report of the commissioners of estimate and assessment in the above-entitled proceedings, which" awards damages to Charles Pitchie for the taking of certain lands for a street opening. , ,,</p>

Appeal by the petitioner, the Morris & Oumings Dredging Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th day of September, 1906, denying the petitioner’s motion for a peremptory writ of mandamus directed to the comptroller of the city of New York requiring him to make payment of a claim.

Appeal by the defendant, Leopold Hellinger, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 1st day of March, 1906, upon the verdict of a jury for $8,300, and also from an order entered in said cleidc’s office on the 5th day of March, 1906, denying the said defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Isaac Bavega, Jr., 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 1st day of March, 1906, upon the verdict of a jury for $8,300, and also from an order entered in said-clerk’s office on the 27th day of March, 1906, denying the said defendant’s motion for a new trial’made upon the minutes.

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

Sepabate appeals by the defendants George Richards, Jr., and others, from portions of a judgment of the Supreme Court in favor of the defendants Mahlon Hoagland and others, entered in the office of the clerk of the county of New York on the 4th day of January, 1906, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendant, Thompson-Starrett Company, from a! judgment of the Supreme Court in favor of the plaintiff, entered' in the office of the clerk of the county of New York on the 15th day of March, 1906, upon the verdict of a jury, and also from ari order entered in said clerk’s office on the 23d day of March, 1906, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Louis Schoolherr, from a judgment of the Supreme Court in favor of the pláintiff, entered, in the office of the clerk of the county of New York on the 13th day of November, 1905, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 25tli day of October, 1905, denying the defendant’s motion for a new trial made upon the minutes.

<p>Insurance—false warranty by insured — policy void if insured not in good health at the time of issue.</p> <p>When a policy of life insurance provides that it shall not be binding on the insurer unless the insured be in good health upon the day of its date, there can be no recovery thereon when it is conceded that the insured was not in good health at that date.</p> <p>The falsity of warranties in an application for insurance is not excused on the theory that the defendant’s physician copied the recitals from a prior lapsed policy and only asked if the insured had been ill since the last policy, if in answer to that question the insured* stated that he had only been ill with grip, when, in fact, he had' had violent bleeding from the nose, had been sent to the hospital, and had received a cut on the head requiring surgical treatment.</p>

<p>Appeal by the defendants, Ferdinand M. Thieriot and others, as executors, etc., from a portion of a judgment of the Supreme Court in part in favor of the plaintiff and in part in favor of the defendants, entered in the office of the clerk of the county of New York on the 2d day of May, 1906, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 4th day of May, 1906, denying the defendants’ motion for a new trial made upon the minutes.</p>

Appeal-by the defendant,Frank Mosner, 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 28 th day of February, 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 the minutes.

Appeal by the defendant, Constance C. Garrison, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 17th day of September, 1906, denying the defendant’s motion to compel the plaintiff to reply to the alleged defenses set forth in the amended answer.

Appeal by the defendant, Doubleday, Page & ■ Company, 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 ,15th day of October, 1906, as denies1 the defendant’s motion to vacate an order for examination before trial.

Appeal by the plaintiff, Celestino De Marco, from an order of' the Supreme Court, made- at the New York Special Term andentéred in the. office of the clerk of the county of New York on the 10th day of September, 1906, denying the plaintiff’s motion to confirm the report of a referee. ^ - ¡

Appeal by Newman Grossman from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk qf the county of New York on the 28th day of September, 1906, directing him as purchaser at a foreclosure sale to pay the sum of $550, the amount of the deficiency between the amount bid by him at said sale and the amount realized upon a resale of the property.

Appeal by the-defendant, the New 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 New York on the 7th day of March, 1906, upon the verdict of a jjury for $10,000, and also from an order entered in said clferk’s office on the 7th day of March, 1906, denying the defendant’s motion for a new1 trial made upon the minutes.

Appeal by the. defendant, the Manhattan Eailway Company, ' from a judgment of the Supreme Court in favor of the plaintiff, entered' in the office of the clerk of the county of New York on the 19th day of February, 1906, 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 February, 1906, denying the defendant’s motion for a new trial made upon the minntes.

Appeal by the plaintiffs, Henry A. Dodin and others, from a . judgment of the Supreme Court in favor of the’defendant1'Clara JB. Dodin, entered' in the office of the clerk of the1 county of New York on the 29th day of January., 1906, upon the decision of the court rendered after a trial at the New York Special Term dismissing the complaint upon the merit's.

Appeal by the plaintiff, Matthew E. Dunne, 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 7th day of March, 1906, upon the dismissal of the complaint by direction of the court after a trial'at the New York Trial Term.

- Appeal by the defendant, the Metropolitan Street Railway -Com-pony, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county <jf New York on the 31st 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 the1 13th day of April, 1906, denying the defendant’s motion for a new trial made upon the minutes. ■ i'

Appeal by the defendant, David S. Johnson,-from an-.order of the Appellate Térrn of the Supreme.Court, made oil the- 1st day of June, 19.06, and entered in the office of the clerk of! the county of New York, affirming a judgment of the City Court of the city of New York in favor of the plaintiff, entered in the office of the clerk of said court on the 3d day of February, 1906;, upon the verdict of a jury, and also affirming an order of -said City Court, entered in said…

Appeal by the defendants, Louis A. Marks and another, as executors, etc., from a judgment of the Supreme Court .in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 3d day of January, 1906, upon the verdict of a jury, and also from an order bearing date the 26th day of January, 1906, and entered in said clerk’s office, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendants, the New Amsterdam Gas Company and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 3d day of July, 1906, restraining the defendant, the New Amsterdam Gas Company, from cutting off the plaintiffs supply of gas, by reason of his refusal to pay more than eighty cents per 1,000 cubic feet.

<p>Municipal corporation — nuisance — stoop encroaching on Broadway in city of New York—evidence establishing building line — landlord and tenant — lease construed — cost of removing nuisance.</p> <p>In an action by the city of New York to compel the removal of a stoop extending beyond the building line of Broadway and constituting a nuisance, the' boundary line of that street may be established from the monuments and distances shown by the certified map filed September 16, 1869, pursuant to chapter 890 of the Laws of 1869, authorizing the straightening and widening of Broadway.</p> <p>Even though the defendants constructed such encroaching stoop under a municipal license, the license is revocable.</p> <p>When in such an action the defendants, landlord and tenant, serve answers upon each other asking a decree as to which should bear the expense of removing the stoop; the issue may be determined in the action by the Appellate Divisiones a question of law. ’</p> <p>Although the tenant holds under a lease whereby he covenants to make all repairs of a nature stated in and about the premises, and to comply with the regulations of the building department and other city departments and the city ordinances, the tenant is under no obligation to bear the expense of removing an encroaching stoop which constitutes a nuisance, and which existed at the time of the making of the lease, as such removal was not in the minds of the parties when executing the lease. Moreover, a provision that no alterations were to be made without the landlord’s written consent negatives the idea that the tenant was to bear the expense of such alteration.</p>

Appeal by the plaintiff, Felicite Skiff Riddle, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Flew-York on the 4th day of April, 1906, upon the decision of the court, rendered after a trial at the FTew York Special Term, sustaining the defendants’ separate amended demurrers to the complaint.

Appeal by the defendant, The City of New Ycirk, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of thó clerk of the county of New York on the 15.th day of June, 1906, upon the verdict of a jury rendered by direction of the. court, and also from an order entered jn said clerk?s-office on the 18tli day of June, 1906, denying the defendant’s motion for a new trial made upon the minutes. !

Appeal by the defendants, Mary M. Irvin, individually and as surviving executrix, etc., 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 18th day of September,' 1906, directing said defendants to furnish to the plaintiffs’ attorney copies of.certain accounts set up in their answers.

Appeal by the defendant, The New York City Railway Company, from an order of the Supreme Court, made at the New York Special Term and entered .in the office of the clerk of the county of New York on the 31st day of October, 1906, denying the defendant’s motion to resettle an order entered'in said clerk’s office on the 26tli day of September, 1906.

Appeal by the plaintiff, Anton Geis, 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 16tli day of October, 1906, denying the nlaintiff’s motion for a physical examination of the defendant. ' ■

Appeal by the relator, Morris Miodownick, 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 9th day of-July, 1906, denying the relator’s motion for a peremptory or alternative writ of mandamus.

Appeal by.the defendant, Matthew A. Bosenberg, fronpan order of the Supreme Court, made at the New York Special Term, and entered in the office of the clerk of the county of New York on the 28th'day of August, 1906.

<p>Executors and administrators — facts warranting removal of executor from office — continuation of speculation begun by testator — use of stock by executor to effect his election as president of corporation — reference — when failure of witnesses to sign testimony waived.</p> <p>When on a petition for the removal of an executor the issues are sent to a referee to hear and report, a failure of the witnesses to sign their testimony is waived when neither party insists that the witnesses sign or calls the attention of the referee to the defect, and they submit the questions involved to the referee without objection.</p> <p>When aftér the filing of the report and opinion of such referee with the surrogate, one party contends that evidence in his behalf was improperly excluded the surrogate personally may hear additional witnesses to supply the defect.</p> <p>When on such proceeding for the removal of an executor it appears that the testator had purchased a large amount of stocks upon margin, the executor has no authority to put up the property of the estate as further margins or to borrow money for that purpose and continue the speculation. The speculation should he closed out at the earliest practicable moment and the estate not he exposed to possible loss.</p> <p>Nor is such continuation of the speculation by the executor warranted under a clause of the will which empowers him to invest the trust' estate.in- securities in his discretion irrespective of the law governing investments by executors and trustees. This, because a speculation of the character described is not ap investment, .to which alone the said clause applied.</p> <p>There is a difference between investment and speculation, the former being for the purpose of securing an income while the latter is for the purpose of increasing the estate." Transactions of the latter character by an executor are not authorized.</p> <p>An executor cannot excuse au improper disposition of a trust estate because his coexecutrix, who is also one of the beneficiaries, concurred. Nor is an illegal disposition of the trust estate excused because the executor could reap no personal benefit therefrom.</p> <p>When it appears that an executor, as such, holds stock of a business corporation in sufficient amount to enable him to control the corporation and effects his election as president at a largo salary, he is using the estate for his own benefit and places himself in a position where his personal interests and those of the beneficiaries are antagonistic. This and the other acts aforesaid warrant his removal from office even though the salary received from the corporation may not have been in excess of the value of his services as president.</p> <p>An executor removed for the causes aforesaid, may'properly be charged with the . costs of the proceeding to remove him.</p>

Appeal by Edward X. J ones, as executor, etc., from an order of - the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 23d day of February, 1905, continuing an injunction restraining the appellant from acting as. executor and trustee pending an application for the revocation- of his létters testamentary.

Appeal by the plaintiff, The People of the State of New York, from an order of the Court of Special Sessions of the City of New York, First Division, entered in the office of the clerk of said court on the 3d day of August, 1906, granting a motion in arrest of judgment and discharging the defendant in the above-entitled action. - ' ,

Appeal by the plaintiff, The People of the'State of New York, from an order of the Court of Special Sessions of the'City of New York, First Division, entered in the office of the clerk of said court on the 3d day of August, 1906, .arresting the judgment and discharging the defóndant' in the above-entitled action.

<p>Ejectment — title established, by unprobated will—when mental cap ac-' íty oi testator can be attacked — deed of habitual drunkard voidable, not void—equitable relief declaring such deed void not obtainable in ejectment.</p> <p>If, in an action of ejectment, the defendant’s title rests-upon an unprobated will, the plaintiff is entitled to show that at the time of "execution the testator lacked testamentary capacity.</p> <p>An unpróbated "will is valid to pass real estate when its execution has been proved. Probate is not necessary to pass real estate.</p> <p>But in regard to a, deed regular upon its face and properly executed, delivered and recorded, the rule is different. Such deed is presumably valid when the grantor had not been adjudicated an incompetent, and is effective to pass title to the grantée unless the instrument be declared void by a court of equity. Such equitable relief, however, Cannot be had in an .action of ejectment, which action depends upon the plaintiff's right to possession when the action is commenced,</p> <p>Clarke, J., dissented, with opinion.</p>

Appeal by the defendant, the Citizens’ Central National Bank of New York, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county, of New York on the 14th day of July, 1906,. upon the decision of the court, rendered after a trial at. the New York Special Term, overruling the defendant’s demurrer to the complaint.

Appeal, by the defendant, M. Gr'oh’s Sons, from - a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of FTew York on the 2d day of April, 1906, upon the verdict of a jury, and also from an order, entered in said clerk’s office on the 27th day of March, 1906, denying the defendant’s motion for anew trial made upon the minutes., ■ •

Appeal by the defendants, James F. A. Clark and others, as survivors of the firm of Clark, Ward & Co., in liquidation, 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 13tlt day of January, 1906, upon the. decision of the court rendered after a trial at the New York Special Term, and also from an order entered in said clerk’s office on the 30th day of January, 1906, denying the said-…

Appeal by the plaintiff, George B. Wilson,in both of the above-entitled actions, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of October, 1906, denying the plaintiff’s motion to consolidate the above-entitled actions.

Appeal by the plaintiff, Frederick P. Wilcox, 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 September, 1906, granting the defendant’s motion to frame issues for trial' by a jury.

Appeal by the defendant, Arthur J. Mallon, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, rendered on the 16th day of December, 1904, convicting the defendant of the crime of manslaughter in the first degree. ’ .

Appeal by the defendants, John H. Giles and others, copartners, , etc., from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Few York on the 19th day of March, 1906, upon the verdict of a jury rendered by direction of the court after a trial at the Few York Trial Term.

Motion by the plaintiff, Michael J. Leahy, 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 at the close of the plaintiff’s case on a trial at the New York Trial Term in March, 1905.

Appeal by the plaintiff, the Atks Portland 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 fall day of March, 1905, upon the report of á referee.

Appeal by the defendants, Thomas L. Feitner and others, as 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 1st day of August, 1906, reducing the assessment for the purposes'of taxation for - the year 1899 on the real property of the relator.

Appeal by the plaintiff, Charlotte Fox Trowbridge, 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 New York on the 6 tli day of April, 1906, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendant, The Empire City Fire Insurance' Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 28th day of February, 1906, upon the verdict of a jury rendered by direction of the court after a trial at the'New York Trial Term.

<p>■ Appeal by the plaintiff, Robert R. Freer, from a judgment of the Supreme Court in favor of the defendant, entered- in the? office of the clerk of the. county of New Y ark on the 11th .day of December, 1905, upon the dismissal of the complaint by direction of the court after a trial.at the New Yóik -Trial Term, and also from -an Order entered in said clerk’s office on the 2d! day of January, 190.6,. denying the plaintiff’s motion for a mew trial made ■ upon the minutes. ‘ '</p>

Appeal by the plaintiff, the Brunswick Construction 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 16th day of March, 1906, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case upon a trial at • the New York Trial .Term.

<p>Mortgage — when rights of heirs not made parties to foreclosure subordinate to rights of mortgagee in possession — when heir subsequently-born must offer to redeem before bringing ejectment.</p> <p>A mortgagee of lands who obtains legal possession after default, even without foreclosure, may withhold possession from the mortgagor and those claiming tinder him until a tender of the mortgage debt, and an- action, óf ejectment will not lie until such tender." So too a purchaser oh foreclosure who enters into possession becomes as to those whose rights' have not been cut off by the action, an assignee of the mortgage and a mortgagee in possession.</p> <p>One S. owning lands mortgaged the same and conveyed to L. who took subject to the mortgage.- L. died intestate, leaving a widow and minor children and the, plaintiff, then unborn. Prior to the plaintiff’s birth the widow -conveyed her life interest to. S. and the interests of the living children were also conveyed in infancy proceedings by order of the court. S. -bought in the premises on the foreclosure of the mortgage, in which action the plaintiff then unborn was not made, a defendant.</p> <p>' Ih ai-subsequent action.-of ejectment brought by the-plaintiff,</p> <p>Held, that irrespective of any question as to whether his rights had been cut- off - bythe foreclosure or whether the Statute of Limitations had run, liis rights-were subordinate to those of the mortgagee and the purchaser on foreclosure who went into possession, and that under the rules aforesaid an offer to redeem was a prerequisite to ejectment. _ ■</p>

Appeal by the defendant, the Rew 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 Rew York on the 15th day of February, 1906, upon the verdict of a jury for $250, and also from an order entered in said clerk’s office on the 23d day of February, 1906, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Annie Halpern, 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 7th day of April, 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 plaintiff, John Horan, 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 30th day of April, 1906, vacating an order entered in said clerk’s office on the 6th day of April, 1906, which granted leave to the plaintiff to serve .a supplemental summons and complaint upon the respondent.

<p>Negligence — pedestrian injured by fall over rope connecting two blockaded automobiles—permission to cross —~ when chauffeur not negligent in starting machine — master and servant.</p> <p>The defendant was steering a disabled automobile which was being hauled by another automobile by means of a rope about ten feet long. A blockade in traffic stopped the two machines and the rope rested on the pavement, and •while in this position - the defendant gave the plaintiff permission to pass between the two machines. She claimed that as she started to do so the front machine moved forward about a foot which raised the rope and tripped her. In an action to recover for the injuries received,</p> <p>Held, tjiat the defendant could not be -charged with negligence in failing to warn the chauffeur of the forward machine that the plaintiff was about to pass where no facts were shown which could have led the defendant to anticipate that the forward machine would be moved;'</p> <p>That the chauffeur was not negligent in so moving the machine when he was ignorant that such a movement would be likely to injure any one;</p> <p>That since the evidence plainly showed that the chauffeur of the forward machine was the servant of the defendant’s father and that the defendant was merely assisting him by steering the disabled machine, the defendantjwould not in any event be liable for the’ negligence of the chauffeur.</p> <p>Verdict for the plaintiff- reversed.</p>

<p>Master and servant — contract of employment — evidence showing breach of contract by master.</p> <p>When in an action by a servant against his master for the breach of a written agreement employing him as a designer and foreman for twenty-one months at a weekly salary, the plaintiff shows that there was friction between the parties and that the defendant instead of permitting him to work compelled him to sit in a dark room unemployed and ordered the plaintiff and his attorney to “get out ” of the work shop while a discussion of the treatment was in progress, it is for the jury to say whether the command to. get out was addressed to the plaintiff as well as to his attorney and was intended to operate as a discharge. x</p> <p>No precise words are necessary to constitute a discharge. Any language by which an employee is notified that his services are not required is sufficient.</p> <p>When under the contract the master retained a portion of the plaintiff’s wages as a guaranty of faithful performance, since the servant is justified injtbandoning his employment bv the master refusing to permit him to labor in the manner provided in the contract, he is entitled to recover the portion of the wages^ thus withheld' and a nonsuit is error. '</p>

<p>Parties — pleading — failure of defendant to allege defect of parties defendant.</p> <p>When the plaintiff sues for a breach of a tripartite contract whereby he was to be paid certain sums of money in consideration of a transfer of patent rights, a defendant sued alone can only assert a defect of parties defendant by demurrer or by allegation in the answer, if the face of the complaint does not show the defect.</p> <p>Where by the contract either the defendant or one S., another party to the contract, was to pay moneys to the plaintiff, he is entitled to recover from one or the other, and the" fact that the first payment was made by the defendant creates a fair presumption that he was to pay the balance, especially so when there is proof that he agreed to pay the balance if further time were given.</p>

Appeal by the defendant, Morris Rhinehardt, 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 bn the 26th day of. September, 1906, denying the defendant’s motion to change the place of trial of the action from the county of New YiOrk to the county of Nassau.

Appeal by the defendant, Jarvis* M. Cornell, from an order of the 'Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th day of September, 1906, denying the defendant’s motion to change the place of trial of the action from the county of New York to the county of Yassa'u.-

Appeal by the defendant Leo Sehlesinger, as receiver, etc., from so much of a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 28th day‘of February,. 1906, upon the decision of the court 'rendered after á trial at the New York Trial Term, a jury having been waived, as adjudges the defendant liable for rent for the quarter beginning September 1, 1904.

Separate appeals by the defendants, the Metropolitan Street Bailway Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of 'the clerk of the county of New York on the 26tli day of January, 1906, upon the verdict of a jury for $15,000, which was thereafter reduced by the court, upon stipulation, to $9,000, and also from an order entered in said clerk’s office on the 15th day of May, 1906, denying the defendants’ motions…

<p>Court — Court Of Special Sessions of the city of New York is a court not of record—Appellate Division has jurisdiction of proceeding to-remove justice of said court —5 Code of Criminal Procedure, section 11, construed.</p> <p>The Court of Special Sessions, of the city of New York for the first, division-is a court not of record, and the Appellate Division, has-jurisdiction of, a proceeding- for the removal of a justice of said court. The amendment of-section 11 of the Code of Criminal Procedure, made by chapter 880 of the Laws of 1895, wherein said court is denominated a courl of record -instead of a cojir't not of record was a mere scrivener’s error, and the section should be read as if the word not had been retained. . N.</p>

Appeal by the. defendant,-Charles'Murray Colmey, from a judgment of the'Cóurt of General Sessions of the Peace in and for the county of New York, rendered on the 16th day of April, 1906, convicting the defendant of the crime of attempting to commit the crime'of foi’gery in the first degree.

Separate appeals-by George M. Burr, as sole surviving executor, etc., and by Isabel D. Burr from a decree of the Surrogate’s Court of tbé county of Broome, entered in said Surrogate’s Court on the 20th day of July, 1905, revoking letters testamentary theretofore issued to said George M. Burr upon the estate of Henry A. Sheldon, deceased.

<p>Appeal by Francis McDermott and another, from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Delaware on the 25th day of August, 1906, adjudging that the appellants pay to the defendant the costs of the above-entitled action.</p>

Appeal by the claimant, Harvey F. Remington, from a judgment of the Court of Claims of the State of New York, rendered on the 18th day of June, 1906, dismissing the appellant’s claim.

Appeal by the plain tiff, Kate Walsh, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany on the 11th d'ay of May,. 1905, upon the dismissal of the complaint by direction of the court, after a trial at the Albany Trial Term. The action is for personal injuries. The plaintiff was a tenant in a two-story and basement house owned by the defendant, and occupied the principal or first story and basement.

Appeal by the defendants, The Canajoharie Water Supply Com-pony and another, from an order of- the Supreme Court; made at the Fulton Special Term and entered in the office of -the clerk of the county of Montgomery on the 10th day of September, 1906.

Appeal by the defendant, The Delaware, Lackawanna and' Western Railroad Company, from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Broome on the 1st day of October, 1906, denying the defendant’s motion to amend the stenographer’s minutes and the case and exceptions on appeal herein.

Appeal by the defendant, Barney Lantry, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Franklin on the 24th day of July, 1905, upon the decision of the court rendered after a trial at the Franklin Special Term, and also (as stated in the notice of appeal) from an intermediate order entered in said clerk’s office on the 15th day of August, 1904.

Appeal by the claimant, the City of Buffalo, from a judgment of the Court of Claims of the'State of New York, entered in the office of the clerk of said court on the 22d day of April, 1904, in favor of the claimant for tlie sum of $154.58. The claim made aggregates over $20,000 and is for local assessments and improvements levied from time to time since the year 1865 upon the property of the State situated within the city of' Buffalo.

Appeal by the New England Brick Company, a defendant in the first and one of the plaintiffs in the second of the above-entitled actions, from so much of a judgment of the Supreme Court in favor of the defendant Austin Simkins, entered in the first of the above-entitled actions in the office of the clerk of the county of Schoharie on the 20th day of November, 1905, as determines that the said Austin Simkins is liable on the notice of liens filed by the parties to the actions…

Appeal by the -defendant, James William Stanley, 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 Ulster on the 7 th day of' June,. 1906, granting the plaintiff’s motion to punish the defendant for contempt in failing to pay alimony. ■

Appeal by the plaintiff, Foster Dickinson, by Charles A. Dickinson, his guardian-ad litem, from a judgment of the Supreme Court in favor of. the defendants, entered in the office of the clerk of the county of Warren on the 8th day of December, 1905, upon the decision of the court, rendered after a trial at the Warren Trial' Term, dismissing the plaintiff’s complaint, before the court without a jury.

<p>' Appeal by Anselm Hoefner from so much of 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 2d day of June, 1906, which confirmed the original and supplemental reports of commissioners of appraisal appointed pursuant to the provisions of section 9 óf chápter 345 of the Laws of 1888, as amended by chapter 255 of the Laws of 1890, and chapter 353'of the Laws of 1892, and which awarded the appellant Hoefner $37,684.83, the ground of this appeal being that the damages awarded were- inadequate.</p> <p>Also, an appeal by the petitioner, The Grade Crossing Commissioners, and the Erie Bailroad Company, from so much of said order as awards to the defendant Hoefner $10,358.43 -for damages done-to buildings and fixtures erected and owned by him, situate On property belonging to the city of Buffalo, known as the Mill Bace strip, and $3,512:06 for damage done to premises owned by Hoefner situate north of the north line of the Mill Bace"strip, so called, but not abutting upon Yan Bensselaer street and not described in the petition, , . . ■</p> <p>The proceeding was commenced on the l-6th day of -Hoyember, 1903, by the presentation of the duly verified petition of Augustus-F. Schen, chairman of the grade crossing commissioners of the' city of Buffalo, praying for the appointment of .commissioners of appraisal pursuant to section 9 of chapter 345 of the Laws of 1888, as amended by chapter 255 of the Laws of 1890, and chapter 353 of the Laws of 1892, to ascertain the. compensation to be paid to the owners of and parties interested in lands which may be injured by the'change of grade of Yan Bensselaer and Boseville streets in said city, which change and'improvement were determined upon pursuant to the provisions of said act. In accordance with the prayer of such petition, commissioners of appraisal were duly appointed and after hearing the -allegations and the testimony offered by the respective parties, determined that the total damages, sustained by the appellant Hoefner because of such improvement were $37,684.83, and they so reported. By a supplemental report.required" to be made upon motion. of Hoefner, said commissioners stated the items which made up said total award; that, the damage to the land wag $9,277.37; that.'the damage to the buildings.and fixtures situate, on the land owned' by Hoefner south of the south line of the mill race was $14,536.97; to the buildings and fixtures situate on, the mill race property, $1(3.358.43, and to the buildings and fixtures situate on the property owned by the appellant Hoefnér "north of the" north line of the mill race and which, did not abut upon Yan Bensselaer. street, $3,513.06. Such original and supplemental reports were confirmed and the order appealed from duly entered.</p>

Appeal by Charles E. Appleby, as surviving trustee, etc., 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 8tli. day of January, 1902, confirming the report of commissioners appointed to ascertain the just compensation for the taking of the fee of the bed of the Buffalo river between the Buffalo Creek Indian Reservation line and the easterly line of the city- of Buffalo.

Appeal by the- defendant, The Northwestern Mutual Life Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 30th day of June, 1906, upon the decision of the court, rendered after a trial at the Erie Special Term, decreeing the plaintiff to be.entitled to a paid-up life insurance policy of the defendant company for the sum of $30,000, and to recover the sum of $29,601.76 damages and…

Appeal by the defendant, the Utica and Mohawk Valley Railway Company, from an order of the Supreme Court, made at the Oneida Trial Term and ■ entered in the office of the clerk of ■ the county of Oneida on the 16th day of June, 1906, granting the plaintiff’s motion to set aside the verdict of a jury theretofore rendered in her favor, on the ground that the damages were insufficient, and granting a new trial of the action.

Appeal by the defendant, The Supreme Court of the Independent Order of Foresters, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 1st day of June, 1906, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 1st day of June, 1906, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the- plaintiff, Ohauncey L. Bowen, from a judgment of the County Court of Oneida county in favor'of the defendant, entered in the office of the clerk of the county of Oneida on the 17th- day of March, 1906, affirming a judgment of a justice of the peace granting á nonsuit herein.

Appeal by the defendant, Sheldon Chappell, from, an order of the Supreme Court,' made at the Monroe Special Term and entered in the office of the clerk of the county of Livingston on the 11th day of AugLjt, 1906, directing the defendant to appear before a referee for a further examination.

Appeal by the petitioner, Flora Gaffney, from a decree of the Surrogate’s Court of the county of Monroe, entered in said Surrogate’s Court on the 9th day of June, 1906, denying a petition to 'open the probate of a will and codicil, and for a rehearing of the matter.

Appeal by the plaintiff, The People of the State of New York, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Jefferson on the 12th day of January, 1905, upon the verdict of a jury, and also from an order entered in said clerk’s office oh the 11th day of January, 1905, denying the plaintiff’s motion for a new. trial made upon the minutes.

Appeal by the defendants, Hattie McIntyre and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in-the office of tlie dlerk of the county of Erie on the 11th day of August,. 1906, upon the decision of the court rendered after a trial at the Erie Special Term.

Appeal by the defendant, James H. Adam, as mayor of the city of Buffalo, 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 6th day of July, 1906, directing that a peremptory writ of mandamus issue tó the mayor of the city of Buffalo commanding him to appoint the relator to the position of bridgetender of said city. •

Appeal by the defendant, The Village of Warsaw, from a judgment of the, Supreme Court in favor of the plaintiff,-entered in the office of the clerk of the county of Wyoming 'on the 7th day of March,… Held: as matter of law, that the peanut roaster was an unlawful obstruction in the street, and that the defendant was liable, and submitted only the question of damages to the JUI7-

<p>Master and servant — injury from dust explosion in mill—weight of evidence as to safety of machinery — damages — erroneous submission of question of negligence Which was not proximate cause of accident to increase damages.</p> <p>In an action by an employee in a cereal mill to recover for personal injuries received from a dust explosion in a bin near which he was working it appeared that the explosion was caused by the ignition Of the dust in the bin by sparks . from the attrition mills on the floor below caused by the presence of some metallic substance in the cereal which passed between the rapidly revolving • iron disks of the mills. ■ The plaintiff contended that the defendant was negligent in failing to provide a sieve in addition to the magnetic separator, which was being used to separate foreign substances from the cereal. Two experts called by the plaintiff admitted that they were inexperienced in the operation of attrition mills arid that they knew of no such mill in which a sieve was used in connection with a magnetic separator. Four experts for the defendant, who were experienced in the construction and operation of attrition mills, testified that the magnetic separator used by the defendant was safe and proper and that no additional machinery was required.</p> <p>Held, that the preponderance of evidence was against the plaintiff’s contention and it was error to submit the question to the jury.</p> <p>The plaintiff further contended that the failure of the defendant to "use reasonable care to clean the bins and prevent the accumulation of dust on the sides increased the danger of the explosion. ' It appeared that the bins'had not been" cleaned for over a week. The plaintiff’s experts testified that the explosion was caused by the ignition ofthe dust in the air which they admitted would be present whenever the mill was in operation, even if the bin had been cleaned within an hour.- It appeared that the injury was caused by a sudden flash.</p> <p>Held, that it was error for the court to charge,that if the plaintiff was otherwise entitled to recover, the defendant was liable for any increased damages caused by the omission to clean out the dust in the bin. Such increase in damages would be extremely speculative.</p> <p>Spring and Kruse, JJ., dissented, with opinion.</p>

<p>Gift — evidence sufficient to establish gift by decedent—testimony of wife admissible to show gift to husband — testimony-of physician..</p> <p>While evidence of gifts inter vivas or cansa mortis sought to" be established after, the death of the donor is always closely scrutinized by the courts and clear and convincing proof required, yet gifts may be upheld upon the unsupported evidence of a wife, husband or other relative of the donee.</p> <p>The fact that the witness testifying to a gift by a decedent is the wife of the donee and may be said to be interested in the result does not render her testimony incompetent.</p> <p>So too the testimony of the decedent’s physician is admissible to show the gift. "</p> <p>When it appears that the donor was a warm friend of the donee and had often aided him financially and placed many matters of business in his hands and that the donee’s wife had rendered many services for the donor, and the wife testifies without contradiction that the donor made a gift of a certain bond and mortgage to her husband and delivered the same, and there is evidence by the donor’s physician showing that he acknowledged his obligations to the donee and said he would help him, the evidence is sufficient to establish the gift although no written assignment of the mortgage was made. •</p>

Appeal by the defendant, Thomas 0. Platt, as president, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Onondaga on the 21st day of May, 1906, upon the verdict of a jury for $7,000, and also from an order entered in said clerk’s office on the 31st day of May, 1906, denying the defendant’s motion for. a new trial made upon the minutes.

Appeal by the defendants, the City of Buffalo 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 Erie on the 17th day of July, 1906, upon the verdict of a jury for $1,100, and also from an order entered in said clerk’s office on the 17th day of July, 1906, denying the defendants’ motions for a new. trial ■ made upon the minutes. ,

Appeal by the plaintiff, David H. Munro, from a judgment of the County Court of Onondaga county in favor of the defendant, entered in the office of the clerk' of the county of Onondaga on the 30th day of June, 1905, and also from an order of said County Court entered in said clerk’s office on the 30th day of June, 1905, reversing a judgment of the Municipal Court of the city of Syracuse in favor of the plaintiff.

Appeal by Sidney H. Cook from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Onondaga on the 23d of February, 1906.

Appeal by. the plaintiff, Anna Evans Lahn, from an order of the Supreme Court, made at the Monroe.Trial Term and entered in the office of the clerk of the county of Monroe on the 3d day of October, 1904, setting aside the verdict of a jury in favor of the plaintiff and granting a new trial of the action.

Appeal by the defendants, Mary L. Fisher 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 Herkimer on the 1st day of August, 1906., upon the report, of a referee for $450 damages, besides costs.

Appeal by the petitioner, Alfred' G. Hanenstein 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 24th 'day of May, 1906, overruling exceptions to the report of a referee herein and confirming said report. ■ • Alfred G. Hanenstein commenced the proceeding upon his petition for an order directing Albert J. Wheeler, as- receiver of the German Bank, to credit the sum of $19,000,…

Appeal by the defendants, Ellen Tolan and others, from a final order of the Supreme Court, made at the Monroe Special Term and entered in .the office of the cleric of the county of Monroe on the 27t-li day of September, 1905, as amended by an order made on the 14tli day of October, 1905, confirming the report of commissioners in condemnation proceedings. ' - -

Appeal by the defendant, The City of Yonkers, from a'judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Westchester on the 7th day of May, 1906, upon the decision of the court rendered after a trial at the Westchester Special Term.

Appeal by the defendant, the Kingston. Realty Company, from a judgment of the Supreme Court in favor-of- the plaintiff, entered in the office of the clerk of the county of Kings on the 18th day of April, 1906, upon the decision of the court rendered after a.-trial at the Kings County Special Term. - .

Appeal by the petitioner, Anton Schmid, from a decree of the Surrogate’s Court of the county of Kings, entered .in said Surrogate’s . - Oourt on the 17th day of January, 1906, denying the petitioner’s application for the revocation of letters of administration theretofore-issued to Johanna Ilg upon the estate of Lonise Sprathoff, deceased.

Appeal by the defendant, the New York and Queens County Railway Company, from a judgment of the County Court of Queens county, in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 27th'day of December, 1905, upon the verdict of a jury for $150, and also from an order entered in said clerk’s office on the 8th day of. January, 1906, denying the defendant’s motion for a hew trial made upon the minutes.

Appeal .by the defendant, the Federal Union Surety Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Eockland on the 22d day of November, 1905, upon the verdict of a jury rendered by direction of the court after a trial at the Eockland Trial Term, arid also from an order entered in said clerk’s office on the 20th day of December, 1905, denying the said defendant’s motion for a new trial made upon the…

Appeal by the defendant, Harry G. Kosch, from a judgment of the County Court of Westchester county in favor of plaintiffs, entered in the office of the clerk of said county on the 2d day of March, 1906, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 2d day of April, 1906, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Henry Bloomgarden, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 19th day of April, 1906.

Appeal by -the plaintiff, Henry Ringe, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 29th day of May, 1906.

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

<p>.Beal.property — title by adverse possession — bankruptcy — title of assignee in bankruptcy to lands not scheduled.</p> <p>Although a bankrupt'is not aware that the title of a four-inch strip of land still remains- in him and fails to include the same in bis schedules, his title nevertheless passes to the assignee in bankruptcy -where it remains until there has béen an alienation by the assignee or a title has been acquired against him by - adverse .possession.</p> <p>Entry and possession by a grantee under a deed given without right in the grantor Is entry under color of title and the grantee’s possession is adverse. Hence, when subsequent to the bankruptcy the bankrupt and his predecessors in title have entered into possession under a deed including the said four-inch strip, the possession is adverse to the assignee in bankruptcy and when maintained for twenty years.the bankrupt’s title to the strip becomes marketable.</p>

<p>Appeal by the petitioner, Frank A. Hall, from a judgment of the Supreme Court in favor of the respondents, entered in the office of the.clerk of the county of Orange on the 11th day of October, 1905, upon ah order made at the Orange Special Term pursuant to a decision of the court dismissing a writ of certiorari theretofore issued in the proceeding. 1</p>

<p>Appeal by the defendants, Samuel E. Yielee, as justice of the peace, etc., 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 Orange on the 16th day of November, 1905, as amended, upon the decision of the court, rendered after a-trial at the Orange Special Term, overruling the defendants’ demurrer to the complaint on the ground that the complaint does not set forth facts, sufficient to constitute a cause of action.</p>

Appeal by the defendant, Clarence E. Brown, 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 rendered by direction óf the court after a trial at the Kings County Trial Term..

<p>Eminent domain — erection of telephone poles in village street—when due compensation must he paid adjoining owner.</p> <p>A telephone company holding a franchise from a village authorizing the erection of poles in the streets cannot erect such poles in front of lands owned by a citizen having the fee of the street, subject only to the public right of way, without acquiring the right by condemnation.</p> <p>The r.,le bolds in the case of an owner of a fee in the street of a village of 10,000 inhabitants.</p>

<p>Trust — power of attorney to collect legacy — void assignment of legacy — Statute of Limitations against trustee — running of statute postponed until knowledge of fraud.</p> <p>When a residuary legatee gives to another a power of,attorney authorizing him to receive, invest and reinvest the legatee’s share of the estate for her benefit, the instrument creates the relation of trustee and cestui que trust. The trust is active and continuing and the mere lapse of time will not bar an action against the trustee. ■</p> <p>The statute begins to run on an action against the trustee when the trust terminates, or he repudiates the trust to the knowledge of the eestui que trust. But when such residuary legatee, in addition to the power of attorney theretofore given, gives to the attorney an assignment of .all the property in his possession or which he may thereafter receive from the residuary estate on her account, and said instrument is found as a fact to he void and fraudulent, the Statute of Limitations does not begin to run until the cestui que trust has knowledge of the fraud.</p> <p>When the cestui que trust has died without knowledge of the fraud her adminis-' trator may bring an action for an accounting against the estate of the attorney in fact.. - •</p>

<p>Appeal by the defendant, Oscar T. Sewall, 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 December, 1905, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 8th day of January, 1906, denying the said defendant’s motion for a new trial made upon the minutes.</p>

<p>¡Railroad — when consent of town for street railway franchise lapses on failure to give bond — conditions imposed by town — when new franchise may be granted.</p> <p>When the franchise and consent to the building of a railway given by a town provides that the consent shall not be operative until the railway company has given a bond, and the railroad has failed to give such bond or to begin the construction of the road within the two years limited therefor, the town may give a consent to another railroad to construct a line upon the same street. This is true although the period within which the first railroad should construct its road was extended, if the extension were made on the same terms as the original franchise.</p> <p>A town may impose a shorter time for the construction of a street railroad than that provided by the Railroad Law and may require the giving of a bond as a condition precedent.</p> <p>Section 93 of the Railroad Law, empowering local authorities to annex conditions to their consent, applies to all cities, towns and villages, and is not limited to cities of over 1,350,000 inhabitants,</p>

. Certiorari issued out of the Supreme Court and- attested on the 18th day of January, 1906, directed to Edwin B. Sippell and others, as the town board of audit of the town of Orangetown, commanding them to certify and return to the office of the clerk of the county of Rockland all and singular their proceedings had in disallowing certain claims of the relator,

Appeal by the defendant, the Maryland Casualty Company, from a judgment of the Municipal Court of the city of New York, borough pf Queens, in favor of the plaintiff, rendered on the 10th day of November, 1905.

<p>Appeal by the defendant, Charles T. Wills, 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 4th day of April, .1906, upon the verdict of a jury for $17,500, and also from an order entered in said clerk’s office on the 19th day of May, 1906, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Maiy F. Cushman, as executrix, etc., 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 2d day of January, T906, upon the report of a referee dismissing the complaint upon the merits. . .

<p>Sale—: measure of damages for breach of contract to deliver goods-at a specified, time.</p> <p>A plaintiff suing to recover for the defendant’s breach of contract to deliver goods at a stated time is not entitled to recover prospective or possible profits which he'would have made had'the goods been delivered, in the absence of proof .that the defendant was notified that the purchase was made to fulfill advance ■ retail sales made • by the plaintiff. Moreover, to recover such prospective profits- they must he pleaded as special damage, and when it is shown that .the plaintiff actually received the goods after the day set for delivery and resold the same at retail, he is only entitled to recover the difference between the contract price’and the subsequent wholesale market-price on the day set for delivery; i. «., the amount of the1 fall of the wholesale price'which-he lost by. the failure "of the seller-to deliver on contract time.</p> <p>When- a buyer, accepting goods after a delay in delivery, has resold the same, he is not entitled to recover prospective profits for he has realized such profits.</p>

Appeal by the plaintiff, Mary Schaefer, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Suffolk on the 17tli day of October, 1897, upon the decision of the court rendered after a trial at the Suffolk Trial Term without a jury dismissing the complaint upon the merits.

Appeal by the defendant, the Erie Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 15th day of January, 1906, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 13th day of January, .1906, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The’Manhattan Life Insurance Company of Hew York, from a judgment of the Supreme- Court in favor of the plaintiff, entered in the office of the clerk of -the county of Kings on the-23d day of January, 1906, upon the verdict of a jury for $2,750, and-also from an order entered in said clerk’s office on the 26th day of January, 1906, denying- the- defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Michael Cummings, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office ©f the clerk of the county of Kings on the 28th day of April, 1905, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the plaintiff, Annie Maloney, from an order of the County Court of Westchester county, entered in the office of the clerk of said county on the 1st day of June, 1906, vacating an order . for the examination of two judgment debtors in supplementary proceedings.

Appeal by the defendant, William F. Smith, from an order of the County Court of the county of Nassau, entered in the office of the clerk of said county on the 1st day of August, 1906, canceling of record a certain judgment theretofore entered by the defendant against the plaintiff. - . •

Appeal by the plaintiff, Sebastian Acardo, as administrator, etc., 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 Richmond on the 22d day of September, 1906.

Appeal by Franklin S. Hobbes from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk óf the county of Kings on the 13'th day of August, 1906, compelling, the appellant to complete his purchase of certain premises sold under an interlocutory decree, and also from an order entered in said cl.erk’s office on the 12th day of September, 1906, denying a motion to resettle said first above-mentioned order.,

<p>Motion to dismiss an appeal taken by the Raymond claimants from an order of the Special Term confirming the report of commissioners.</p>

<p>Appeal by Edward H. Floyd-Jones and others from an order of the.Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Massau on the 28th day of June, 1906, confirming the report of commissioners of appraisal herein.</p>

■ Appeal by' the plaintiff, Louis W. Olms, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of.Kings on the 24th day of September, 1906, denying the plaintiff’s motion to continue a temporary injunction pendente lite and vacating the said injunction.

Appeal by the defendant, Kunigunda Goetz,, 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 7th day. of March, 1905, upon the decision of the court rendered after a trial at the Kings County Special Terra.

<p>Municipal corporation—negligence — when city not liable for overflow ■ . of sewers.</p> <p>A city in constructing sewers is not bound to provide for extraordinary and excessiye- rainfalls, and is not liable because, at a period of unusual and ' extraordinary rainfall, the sewers backed up and flooded private property,</p> <p>■Woodward, J., dissented.</p>

Appeal by the petitioner, The City of New 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 Putnam on the 24th day of March, 1906, quashing a writ of certiorari theretofore issued in the above-entitled proceeding.

Appeal by the plaintiff, James M. Gray, as trustee, and by the defendant, Annie Butler, from a judgment of the Supreme Court in favor of' the defendant, Orlando W. Butler, entered in the.office Of the clerk of the county of Kings1 on the 5th day of December, 1905, upon the decision of the court rendered -after .a trial , at the Kings'. County Special - Term dismissing the complaint upon the merits. -

Appeal by. the plaintiffs, William EL. Grider and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Suffolk on the 7th day of February, 19.06, upon the report of a referee dismissing the plaintiffs’ claim against the defendants.

<p>Principal and agent — action by agent founded on false representations by principal —no recovery without proof of damage.</p> <p>An agent suing his principal on the theory that the contract of agency was induced by the fraudulent representations of the principal must show damage in order to recover.</p> <p>A selling agent who alleges that he entered, upon the agency relying upon false representations^ the principal that the principal’s business was the largest in the United States, is not entitled to recover by merely showing that he failed to make the sales required by the contract, when, there is no proof that, his failure to make such sales was due to the alleged false representations.</p>

Appeal by the defendant, J. Milliards Son, from a judgment of the Supreme. Court in favor of the plaintiff, entered in the office of. the clerk of the county of Kings on the- 15th day of December, 1905, upon the verdict of a jury for $10,000, and'also from an order entered in said clerk’s office on the 15th day of December, 1905, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Frank W. Molloy, 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 10th day of February, 1905,.upon the dismissal of :the complaint upon the merits 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 lOtli day of February, 1905, denying the plaintiff’s motion for a new trial made upon .the minutes.</p>

<p>Certiorari issued, out of the Supreme Court and attested on the 17th day of April, 1906, directed to The Board of Supervisors of the County of. Westchester, commanding them to certify and return to the office of the clerk of the county of Westchester all and singular their proceedings had in disallowing a claim of the relator, an attorney, for services rendered.</p>

<p>Appeal by the defendant, The New York Central and Hudson Biver Bailroad Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 13th. day of March, 1906, directing the issuance of a peremptory writ of mandamus requiring said defendant to construct and maintain a bridge across its tracks from the property of the relators on one side thereof to their property on the other side, and awarding damages to the relators. -</p> <p>Also, an appeal by the relators, Lavinia Lally and others, from so much of said order as assesses the relators’ damages.</p> <p>The appeal is only from so much of the said order as assesses the damages of the relators for a false return to the alternative Writ.</p> <p>The trial judge found the damages to be $1, and to that added the expense of tlm relators for counsel, $1,750, and for surveyors, engi-' neers and real estate experts, ,$502.50, on the- trial of .the issues raised by the return in the proceeding as damages, making the total .damages $2,253.50. ' '</p>

Appeal by the defendant, the Central Vermont Eailway 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 24th day of. November, 1906, opening a judgment dismissing the complaint upon the plain.tiffs'default. .

- Appeal by the defendants, Edward R. Thomas and others, from - an order of the Supreme. Court, made at1 the Orange Special Term and entered in the office of the clerk of the county of Kings on the 20th day of December, .1906, denying a motion, to vacate an order to take the deposition of the defendants before trial;

Appeal by the defendants* Mary Miller and another, from a final Order of the County Court of Westchester county, entered in 'the office of the clerk of the county of Westchester on the 27th day of January* 1906, upon the verdict of a jury removing the defendants from certain real estate in summary proceedings, and also from an order entered ip said, clerk’s office on the 26th day of February, 1906, denying the defendants’ motion for a new trial made upon the minutes. - : A…

Appeal by the defendant, the New York City Railway 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 Nassau on the 20th day of October, 1906, denying the defendant’s motion for a.bill of particulars.

Appeal by the plaintiffs, Jacob Barnett and another, from a-judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 4tli day of October, 1905, upon the decision of the court rendered after a trial at the Queens County Special Term. ■ The action was for specific performance of a contract to sell real estate.

Appeal by the defendant, Charles £. Wood, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Westchester on the 9th day of May, 1906, denying the defendant’s motion for a bill of particulars.

Appeal by the defendant, John P. Warner, from a judgment of the County Court of Suffolk county, entered in the office of the clerk of the county of Suffolk on the 17th day of March, 1906, affirming a judgment of the Court of Special Sessions of the town of Southampton, which convicted the defendant of violating section 124 of the Forest, Fish and Game Law (Laws of 1900, chap. 20, as amd. by Laws of 1903, chap. 475).

<p>Husband and wife — divorce —• service by publication — money judgment cannot be entered thereon.</p> <p>An action of divorce is an action in rem and service on the defendant without the State may be made by publication; but unless the defendant" appear or jurisdiction has been obtained by attachment, a judgment for alimony and costs cannot be entered.</p> <p>An execution on a judgment for costs improperly entered will be vacated, though it would be better practice to move to set aside the judgment.</p>

Appeal by the plaintiffs, John A. Smith and others, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Queens on the-27th day of April, 1906, dismissing the complaint upon the merits.

<p>App-eal by the defendants, John 0. Uhriaub 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 Queens on the 20th day of December, 1905, upon the decision of the court, rendered after a trial at the Queens County Special Term, restraining the defendants in the use of a building erected on piles between high and low-water mark, adjacent to upland property’ owned by them on the Atlantic ocean in Arverne.</p> <p>-The action is based on restrictive covenants contained in three deeds, by which a large traqt was partitioned among three tenants in common, in June, 1885. Said covenant is as follows: “That neither the said party of the second part, nor his heirs or assigns, .shall at any time hereafter erect, maintain or permit any mechanical or mercantile business or any stable, or any building other than a dwelling house, on the portion of the_ said premises lying south of the strip thereof now occupied by the tracks of the South Side Railroad of Long Island, nor erect, maintain or permit upon any part of said premises any house or place for the sale of wine, beer or intoxicating liquors except by apothecaries for medicinal purposes, and that no foul waste water or other refuse or garbage from, in or about any buildings which may hereafter be erected pn said premises shall be permitted to be deposited on the soil or sand, but the same shall be deposited in cesspools or in channels throughout which the tidewater from Jamaica bay shall freely ebb and flow, or shall be conducted thither through pipes or drains, which said pipes or drains and cesspools shall be constructed of tile, iron, brick or stone and best Portland or other superior cement in such manner as to be perfectly watertight and so as to effectually prevent the escape of any of the contents thereof into the adjacent soil or sand, and that this covenant shall run with the land and bind all future owners thereof.”</p> <p>The lands of the plaintiff and the defendants were included in a much larger tract conveyed by one of said deeds to one of said tenants in common and were by him conveyed without restrictions and ' by mesne conveyances; the title to a tract including both of said premises ■ became, vested in one Florence Gr. Vernam, from whom the plaintiff and the, defendants derive title by separate mesne conveyances. Said Vernam conveyed without restrictions.</p> <p>The appellants contend that said restrictions do not apply to land underwater; that equity should deny injunctive relief both because of changes in the character of the neighborhood and because such relief will not benefit the plaintiff, But will inflict great loss upon the defendants, and that as between the plaintiffs and the defendants’ lands there is no restrictive covenant or negative easement.</p>

<p>Appeal by the defendants, Carl Soht 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 19th day of January, 1906, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 18tli day of January, 1906, 'denying the defendants’ motion for a new trial made upon the minutes.</p>

<p>Appeal by the plaintiff, Osear S. Flash-, from a judgment of the Supreme Court in favor of.the defendants, entered in the office of the -cleric of the county of Bichmond on the ,25th day of March, 1904, upon the report of a referee dismissing the complaint upon the merits.</p>

<p>.Appeal by the respondent, Matthew J. Cahill, as coroner, etc., from a.final order of the Supreme Court, made at the Richmond Special Term, and entered in the office of the clerk of the county of Richmond on the 12th day of March, 1906.</p>

<p>Attorney and client — settlement by plaintiff without compensating attorney — when defendant entitled to dismissal of action.</p> <p>When after service of summons the plaintiff makes a settlement with the defendant without providing for the payment of his attorney’s contingent fee- and thereafter refuses to verify a complaint, the defendant is entitled to a dismissal of the action for failure to serve such complaint, and the motion to dismiss should not be conditioned upon a payment by the plaintiff to his att'orney of his portion of the settlement.1</p> <p>An attorney’s lien cannot bar a settlement by the client and the attorney’s remedy is not a motion in the action, but a proceeding under section 66 of the Code of Civil Procedure or an action in equity to establish and enforce his lien.</p>

Appeal by the relator, George Lodes, 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 17th day of February, 1906, denying the relator’s motion for a writ of certiorari to review the action of the.respondent in revoking certain permits theretofore .issued to the relator allowing him to traffic in, milk in the city of New York.

<p>Bill of particulars — assault and battery by servant of street railway — when plaintiff should be required to give particulars.</p> <p>When a plaintiff suing a street railway for an assault by its servant alleges that ' the assault took place on á certain day on a specified line on a specified street, he should be required to give a bill of particulars naming the exact place, time of day and also the direction in which the car was going. • Ho should also be required to give the number of the car, the line and the badge number of.the, motorman and conductor, if he. knows these items. He should not, however, be required to give an exact statement of the injuries sustained, or the nature, extent or effect of the same when there is no allegation of permanent injuries.</p> <p>If the plaintiff be unable to furnish such particulars, he should state his lack of' knowledge or inability as a substitute for the information required.</p>

Appeal by the defendant, the New York City Bail way Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Bichmond on the 10th day of March, 1906, upon the verdict of a jury for $12,500, and also from an order entered in said clerk’s office on the 30th day of March, 1906, denying the defendant’s motion for a new trial made upon the minutes.

<p>Partition—rights of defendants claiming interest in premises may be determined 'in action.</p> <p>In an action of partition the plaintiff may make parties' defendant persons having or claiming an interest in the lands -sought to he partitioned in order to settle all questions of title in one action.</p> <p>Thus, persons disputing the boundary line of the premises to be partitioned who •ha-ye erected houses thereon and torn down boundary fences may be made parties defendant.</p> <p>The determination of such issue is incidental to the relief demanded and there is no improper joinder of independent causes of action.</p> <p>Partition being an action in equity, it is'not. necessary that the alleged causes of action should affect all the defendants to the same extent or in the same manner.</p>

Appeal by the plaintiff, Maria, A. Ciareiá, as .administratrix, etc., 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 30th day of December, 1905, upon the verdict of a j ury, and also from an order entered in said clerk’s office on the 8th day of December, ’ 1905, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiffs, Patrick J. O’Beirne and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of thé clerk of the county of Nassau on the 6th day of January, 1906, upon the decision of the court rendered after a trial at the Nassau Trial Term, a jury having been waived.

<p>Appeal from an" order continuing á preliminary injunction restraining the defendant from disposing of or in any way interfering with a certain patent and from granting any licenses or Tights thereunder pendente lite.</p>

<p>Appeal — unnecessary adjudications in judgment dismissing complaint struck out ' on appeal.'</p>

Appeal by the defendant from a judgment of conviction of the crime of forgery in the second degree rendered against him op the 15th day of December, 1905, in the Court of General Sessions of the Peace in and for the county of New York.

Appeal by the defendant from an order of the Supreme Court, entered in the office of the clerk of the county of Richmond on the 17th dajr of October, 1906.