Volume 117 — New York Appellate Division Reports

Appeal by the plaintiff, Florence Nunnally, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 17th day of July, 1906, upon the decision of the court rendered after a trial at the New York Special Term, overruling the plaintiff’s demurrers to the fourth and fifth defenses of the amended .answer.

<p>Appeal by the petitioner, Maynard M. Clement, as State Commissioner of Excise, from an order of the Supreme Court, made at' the Mew York Special.Term and entered in the office of the clerk of the comity of Mew York on the 26th day of September, 1906, denying the petitioner’s motion to revoke and cancel liquor tax certificate Mo. 5,411, theretofore issued to Henrietta Martin, and also from a judgment for costs entered in said clerk’s office on the 29th day of September, 1906.</p>

<p>Appeal by the defendant, the Pacific Company, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 2d day of May, 1906, granting the plaintiff’s motion to set aside the verdict of a jury in fa.vor of the defendant and granting a new trial'of the action.</p>

Appeal by the plaintiff, Hark H. Ficholls, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Few York on the 17th day of February, 1905, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term, a special verdict in favor of the plaintiff having been previously rendered by a jury. .

<p>Pleading — improper joinder of actions to recover value of legal services rendered to several defendants.</p> <p>When plaintiffs allege that they- rendered services as attorneys and counselors at law in and about the formation and organization of a corporation to take over the business of several firms manufacturing in a certain line of business, and allege that they were retained 'by members of various separate firms who desired to become parties to-the corporation, the actions- upon the several and , separate contracts of employment cannot be joined in one complaint.</p> <p>In order that several causes of action may be united it -must appear upon the face of the compláint that the causes so united affect all- the parties to the action, except as otherwise prescribed by law.</p> <p>When the severance of such causes of action is required the plaintiff will be granted leave- to amend on payment of' costs.</p>

Appeal by the plaintiffs, Emanuel J. Myers and others, from an interlocutory judgment of the Supreme Court in favor of the defendants, Harris Seff and Isidor Lauterstein, entered in-the office, of the clerk of the county of Hew York on the 4th day'of September, 1906, upon the decision of the court, rendered after a trial at the Hew York Special Term, sustaining the said defendants’ demurrer to the amended complaint on the ground that several causes of action have been…

Appeal by the defendant, Colgate Hoyt, from an order of the-Supreme Court, made at the Hew York Special- Term and entered .in the office of the clerk of the county of HeW York on the 7th day of December, 1906, denying the said defendant’s motion to resettle the case on appeal herein. - .

<p>Appeal by tbe plaintiff, the Empire Trust Company, from an interlocutory judgment of the Supreme Court in favor of tlie defendant, entered in the office of the clerk of .the county of New York on the 8th day of May, 1906, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the plaintiff’s demurrer to two separate defenses set up, in the answer.</p>

Appeal by the plaintiff, Dethlef.C. Hansen, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 25th day of June, 1906, denying the plaintiff’s motion to open his default in failing to serve printed papers on appeal from an order denying plaintiff’s motion to place this action on the preferred calendar.

Appeal by the defendant, William Jay Koerner, from a judgment of the Court of General Sessions of the Peace in and for the county of-Mew York, rendered on. the 15 th day of March; 1898, convicting him of the crime of murder in the second degree, and also from an order denying the defendant’s' motion for a new trial.

Appeal by the defendant, Patrick H. Eeahon, from a judgment of the Supreme Court in favor of the plaintiff, entered in the- office • of the clerk of the county of Eew York on the 16th day of January, 1906, upon the verdict of a jury for $8,700, and also from an order bearing date the 19th day of January, 1906, and entered in said clerk’s office, denying the 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>

<p>Appeal by the relator, The International Banking Corporation, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk-of the county of New- York on' the 27th day of November; Í906, dismissing a writ of certiorari theretofore issued .herein, ^ and affirming an assessment against the relator. •</p>

Appeal by the defendant, John H. Cornell, 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 thel7thdayof July, 1906, upon the verdict of a jury, and also from, an order entered in said clerk’s office on the 6th day of August, 1906, denying the defendant’s motion for a new trial made upon the minutes.

<p>W egligenee —injury by dumbwaiter — verdict against weight of evidence.</p> <p>The plaintiff, a tenant, was injured by the fall of a dumbwaiter on .the premises, and claimed that the rope was defective and that .-the landlord’had been notified of the defect. ■</p> <p>The evidence considered, and</p> <p>Held, that-a verdict for the plaintiff was-against the weight of evidence. "</p>

<p>Appeal by the defendant, Meyer Yoscow, from a judgment of the Court of General Sessions of the Peace in and for the county of Hew York, rendered on the 27th day of May, 190é, convicting him of the crime of murder in the second degree, and also from two orders respectively denying the defendant’s motions for a new trial and in arrest of judgment.</p>

<p>Corporation — inspection of corporate books — director’s right to inspection,</p> <p>Even though a stockholder’s right to inspect the corporate books may be denied in the discretion of the court, the right of a director to such inspection is absolute, being necessary to enable him to perform the duties of his office. To enable a director to secure such inspection he need only show that he is a direetor and has demanded permission to examine the books and has been refused. . .</p> <p>It is ho answer to say .that such director is, pursuant to the by-laws, the repre? sentative of a certain stockholder who is inimical to the corporation! If the director’s hostility is such as to justify his removal from office, this should be' accomplished by the proper method.</p>

Appeal by tlie Consolidated' Telegrajih and Electrical Subway 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 3d day of October, 1906, granting the petitioner’s motion for a peremptory writ of mandamus. ■

Appeal by the plaintiff, Otto 0. Schrader, 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 28tli day of March, 1906, upon the report of a referee dismissing the plaintiff’s complaint. ' ‘

Appeal by the defendant, Albion L. Page, as ancillary executor, etc., from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 7tli day of December, 1905, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of November, 1905, denying the defendant’s motion for a new trial made upon the minutes. ' ■ -

Appeal by the defendant, the Pennsylvania Bailroad Company, from a judgment of the- Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of blew York on the 2d day of April, 1906, upon the decision of the court rendered after a trial at the blew York Special Term adjudging the plaintiff to-have an attorney’s lien upon a cause of action brought by Giovanni Bonaddio against the Pennsylvania Bailroad Company.

Appeal by the defendant, the Pennsylvania Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 2d day of April, 1906, upon the decision of the court, rendered after a trial at the Hew York Special Term, adjudging the plaintiff to have an attorney’s lien upon a cause of action brought by Vincenzo Spina against the said Pennsylvania Railroad Company.

Appeal by the defendant, the Pennsylvania Railroad Company, from a judgment of the' Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 2d day of April,1906, upon the decision of the court, rendered' aftpr a trial at the Hew York Special Term, -adjudging the plaintiff to have an attorney’s lien upon a cause of action brought by Francesco Grastello against the said Pennsylvania Railroad Company.

Appeal by the defendant, the Pennsylvania Railroad Company, from a judgment, of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Bew York on the 2d day of April,.1906, upon the decision of the court, rendered after a trial at the Bew York Special Term, adjudging the plaintiff to have an attorney’s lien upon a cause of action brought by Vincenzo Morenna against the said Pennsylvania Railroad Company.

<p>Appeal by the defendant, Vincent Triscoli, from a judgment-of the Court of General Sessions of the Peace in and for the county ■ of New York, rendered on the 29th day of August, 1906, convicting him of the crime of blackmail, 'and also from an order entered in the office of the clerk of said court on the 7th day of September, 1906, denying the defendant’s motion-for a new trial.</p>

Appeal by the defendant, James.Rowland & 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 19th day of December, 1906, denying the defendant’s motion to open a default and vacate a judgment in favor of the plaintiffs entered in said clerk’s office on the 17th day of November, 1906.

Appeal by the defendant, Sophia Michaels, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 4th day of December, 1906, denying the defendant’s motion to cancel and discharge of record a Us pendens theretofore filed in said clerk’s office.

<p>. Appeal by-the plaintiff, Frederick Fox, as executor, etc., from so much of an Order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 13th day of Hovember, 1906, as strikes out a certain allegation of the cqmplaint. ' •</p>

Appeal by the defendant, Post & McCord, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clei'k of the county of Hew York on the 30th day of Hovember, 1906, denying the defendant’s motion for an order requiring the plaintiff tó file security for costs.

Appeal by the plaintiff, Charles M. R. Ward, from a judgment of the. Supreme Court in favor of the defendant, the City Trust Company of New York, entered in the office of the cleric of the county of New York on the 29th day. of August, 1905, upon the report of a referee dismissing the complaint upon the merits.

Appeal by the plaintiff, Mary Elizabeth Paul, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of ISTew York on the 24th day of December, 1906, directing the plaintiff to amend her complaint by stating separately a cause of action for assault and a cause of action for slander.

Appeal by the relator, Margaret Welch, from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 2d day of January, 1907, dismissing a writ of habeas corpus theretofore ■ issued in behalf'of the relator and remanding the said relator to the custody of the defendant.

<p>Application to confirm the report of a referee.</p>

Appeal by the defendants, Sophie Knepper 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 12th day of April, 1906, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendant, Leon C. Weinstock, from a judgment-off the Supreme Court in favor off - the plaintiff, entered in the office -of the clerk of the county of New York on the 19th day of June, 1906, upon the decision of the court rendered after a trial before the co.urt without a jury at the New York Trial Term.

Appeal by the plaintiff, The People of the State of Hew York, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 9th day of June, 1906, upon the dismissal of the complaint by direction of the court after a trial at the Hew York Trial Term, and also from an order entered in said clerk’s office on the 20th day of August, 1906, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the plaintiff, E. P. Dutton & Company, from an order of the Supreme Court, made at the Yew York Special Term and entered in the office of the clerk of the county of Yew York- on the 6th day of December, 1906, denying the plaintiff’s motion 'for a temporary injunction.

Appeal by Adelaide M. Balch, as executrix, etc., from a decree of the Surrogate’s Court of the county of Mew York, entered in said Surrogate’s Court on thé 31st day of May, 1906, confirming the report of a referee against the appellant on her claim to funds represented by two certain savings bank books.

Appeal by the defendant, Frank G. Swartwout, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 25th 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 April, 1906, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Interurban Street Railway Company, from a-judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 9th day of March, 1906, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 2d day of March, 1906, denying the defendant’s motion for a new trial made upon the minutes.

Certiorari issued out of the Supreme Court and attested on the 4th day of January, 1906, directed to Theodore A. Bingham, as commissioner of police of the police department, of the city of New York, directing him to certify and return to the office of the clerk of the.county of New York all and singular the proceedings had by his predecessor, William McAdoo, in relation to the removal of the relator from the police force of said city. ■

Appeal by the defendant, Joseph Klein, from a judgment'of the Court of General Sessions of the Peace in and for the county of ¡New York, rendered on the 20th day of August, 1906, convicting the said defendant of the crime of grand larceny in the second degree.

Appeal by the defendant, Augusta A. Brown, from an interlocutory judgment of the Supreme Court in favor of the plaintiff and certain of the defendants) entered in the office of the clerk of the county of New York on the 21st day of June, 1905, upon the decision of the court, rendered after a trial at the New York Special Term, in a partition suit, denying to said defendant dower or a share in the personal property of her deceased husband.

<p>Appeal by the defendant,. Max Marx,, from'a. judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the - county of "Hew York on the 13th day óf ¡Novernber, 1905, upon the report of, a referee, and also from - an order entered in said Clerk’s office on the 10th day of ¡November,, 1905, granting the plaintiffs an extra allowance.</p>

<p>Foreclosure — lease by receiver of rents and profits — lease not canceled on summary application.</p> <p>When in an action to foreclose a purchase-money mortgage, a receiver of the rents and profits, who is authorized to léase the premises, continues the lease to the tenant then in possession in consideration of an agreement by the tenant to expend money in repairs, the court is without jurisdiction to order_ a summary cancellation of the lease.</p> <p>'It seems, moreover, that in an action in equity to compel the cancellation of the lease the tenant would be entitled to protection for the amount expended by him in repairs.</p> <p>On such summary application to cancel the lease it is immaterial that the receiver" of the rents; though appointed as receiver of only a nine-tenths undivided part of the premises, made a lease of the whole premises.</p>

Appeal by the plaintiff, the Cohn-Baer-Myers & Aronson Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 31st day of March, 1906, upon the decision of the court, rendered -after a-trial at, the New York Special Terrn, dismissing the plaintiff’s amended complaint. •

Appeal by the defendant, Samuel H. Stone, 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 24th day of January, 1906, upon the verdict of a jury, and also from an order entered i.l .said clerk’s office on the 29th day of January, 1906, denying the defendant’s motion for a new trial made upon the minutes.

. Appeal by the defendant, Romeo H. Sehile, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Hew York on the 8th day of January, 1906, upon the verdict of a jury,'and also from an order entered in said clerk’s office on the 10th day of January, 1906, denying the defendant’s motion for a new trial.

<p>Practice — defense .arising after service of answer.</p> <p>A defense arising after the service of the answer can only he interposed hy leave of court and should he in the form of a supplemental answer. Such defense cannot he set up hy an amendment as of course.</p>

Appeal by the plaintiff, John Foster Nevius, from a judgment of the Supreme Court in favor of the defendants,- entered in the office of the clerk of the county of New York on the 9 th day of May, 1906, upon the decision of the court, rendered after a trial at the New York Special Term* .dismissing the complaint on the opening of the case upon the ground that it fails to. state facts sufficient to constitute a cause of action.

<p>Elections preservation of ballots after time for destruction.has expired.</p> <p>Although section 111 of the Election Law provides for the destruction of ballots after the expiration of six months, yet when new ballot boxes have been acquired and a'controversy is pending as to the legality of an election, an order requiring the preservation of the ballots after the expiration of the statu, tory time will not be vacated, wh.en it does not appear there is any public necessity for the vacating of the order or that the use of the old ballot boxes . will be necessary in coming elections.</p> <p>In any event the application to be relieved from the order preserving the ballots should be made by the board of elections against whom it operates rather than by the officeholder whose election is contested.</p>

<p>Examination of books and papers-^defense of Statute of Frauds not .'considered on such application — inspection of papers in attorney’s possession — attorney acting as business agent hot privileged.</p> <p>When in,an action for the specific performance of a- contract to sell lands, the plaintiff moves for an inspection of papers, a defense of the Statute'of Frauds is no harto the’granting of the application if the-complaint alleges the contract- . to convey and the consideration agreed upon.1 The complaint need not allege that the agreement was in'writing, for the Statute of Frauds is an affirmative defense, and the merits of that defense will not be determined on a motion to inspect papers.</p> <p>When it appears that the alleged contract of sale was made by the defendants’ attorney in their absence and. that he .was acting as their business agent rather than in his professional capacity, the privilege of -professional secrecy under section 885 of the Code of Civil Procedure does hot obtain.</p> <p>The privilege does not extend to business transactions to be negotiated by the ■attorney with a, third party, concerning which the client neither requires nor. receives professional advice.</p> <p>If an owner of property employs a counselor at law instead Of a real estate agent to negotiate a sale, he- does not thereby receive immunity-from disclosing the authority conferred upon the attorney.</p> <p>If the client can be required- to'disclose the authority, the attorney may also be •' required to do'so; for. it is the privilege of the client and not the privilege Of the attorney -that the statute protects.</p>

<p>Appeal by the plaintiff, Julia R. Farley, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of January, 1906, denying the plaintiff’s motion for leave to serve a supplemental summons- adding the Interborough Rajiid Transit Company as a party defendant, and to serve the supplemental complaint annexed to the moving papers.</p>

Appeal by tlie defendant, Lena M. Moran, as administratrix, etc., from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of .the clerk of the county of Hew York on the 26th day of Hovember, 1906, granting leave to the plaintiff to amend the summons and amended complaint by adding thereto the.name of Boss F. Bobertson as a party defendant. '

<p>Appeal by the defendant, Edmund 0. Converse, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Hew York on the 12th day of May, 1906, upon the decision of the court, rendered after a trial at the ¡New York Special Term, overruling the said defendant’s demurrer to the amended'complaint.</p>

Appeal by the defendants, the Century Paint and Wall Paper 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 22d day of November, 1906, denying. the said defendants’ motion for leave to serve amended answers.

<p>Bankruptcy — partnership — when judgment on partnership debt discharged on bankruptcy of partner — cancellation of judgment.</p> <p>A judgment on a partnership debt is properly scheduled on the voluntary bankruptcy of a member of the firm.</p> <p>When on the voluntary bankruptcy of a partner he schedules a judgment against him obtained upon a partnership debt, the judgment creditor, having no other claim against the bankrupt, is presumed to have notice of the proceeding and that the insolvent would seek a discharge from the partnership debt, although it is not expressly scheduled as such.</p> <p>When a firm is solvent and an individual member is insolvent and seeks a discharge in bankruptcy, he is entitled to a discharge and to have the business of the firm wound up and his surplus interest applied to liquidate his individual debts. ' ' •</p> <p>The equity of an individual partner in the partnership assets passes to his trustee in bankruptcy, and although the firm debts are provable against him in bankruptcy, the firm creditors can only share in the individual estate after the individual creditors have been paid in full.</p> <p>Where a bankruptcy court has acquired jurisdiction and granted a complete discharge of a bankrupt partner without making any reservation as to partnership debts, the decision is res adjudicata. It seems, however, that if the discharge be expressly limited to individual debts, the bankrupt is not relieved from liability on firm obligations.</p> <p>It is nota condition precedent to the discharge of the bankrupt that .his estate shall have been completely administered and the accounts of the trustee finally settled. ,</p> <p>In any event, on the discharge of an individual partner without reservation he is entitled to have a judgment on the partnership debt canceled of record when it does not appear that the firm is still doing business or has any remaining assets,</p> <p>It seems, that in such circumstances if it appear that the bankruptcy court has been deceived and that the bankrupt has concealed his property or that a partnership with assets undistributed exists, the application for cancellation of judgment should be denied, for the purpose of enabling the judgment creditor to apply to the bankruptcy court to vacate the discharge.</p>

Appeal by the defendant, George Hash, from an' order of the Appellate Term of the Supreme Court, entered in the office of' the clerk of the county of Hew York on the 24th day of April, 19Q6, affirming a judgment of the City Court of the city of Hew York in favor of the plaintiff, entered in the office of the clerk of said court, on the 5th day of January, 1906, upon the verdict of a jury rendered by direction of the court; also from an order of the said City Court entered on…

<p>Civil service —- survival of action for damages under section SO — failure to seek other employment excused.</p> <p>An action against a commissioner of public works, of a municipality brought ' - under section 20 of the Civil- Service Law to. recover damages ‘ for the- refusal of the defendant to allow the preference of a veteran guaranteed by the Constitution and the ¡statute'is an action for injury to property rights,- survives the death of the plaintiff, and may be continued by his.lepresentative. - • .</p> <p>When in such action • it appears that the defendant some time in .January promised' to give the decedent work upon the city streets after the ice and - snow bad been,removed, the decedent was excused from seeking other similar employment, and his failure to' do .so does not1 restrict the verdict to nominal damages, or prevent a recovery. ■</p>

<p>Attorney and client — action by infant in forma pauperis—when surrogate should not pass on attorney’s right to compensation—jurisdiction of Federal court to fix attorney’s compensation.</p> <p>The appellant acted, as an attorney for an infant in an action brought to recover damages for injuries received. The action was originally brought in the State court but was transferred to the Federal court, and in both courts the action was brought in foi'rna pauperis. The guardian ad litem, for the infant appointed by the State court entered into a contract with the attorney by which the latter was to receive fifty per cent of the recovery.' The" attorney was subsequently appointed general guardian of the infant and prior to receiving the recovery in the action obtained an ex parte order of the surrogate allowing him fifty per cent of any recovery, with costs and disbursements. Having received the recovery, he petitioned for a judicial accounting as general guardian, in which proceeding the infant was not served with citation, but service thereof was admitted by the infant’s mother and the special guardian. In that proceeding the surrogate made a decree assuming to settle the guardian’s accounts and allowing a payment to himself of the share of the recovery set by the contract with expenses, and another general guardian was appointed for the infant.- Subsequently the appellant petitioned for a supplementary accounting on which the infant was not cited and in this proceeding 1 the special guardian objected to the prior allowance of the sum received by the appellant. The surrogate decided that the former decree was invalid and declined to pass upon the attorney’s claim.</p> <p>Held, that as the action was brought informa pauperis the attorney was bound to prosecute without compensation, and that the contract for a contingent fee was unenforcible;</p> <p>That the former decree purporting to settle the guardian’s accotint and allowing the item'of compensation was wholly without jurisdiction for failure to serve citation upon the infant;</p> <p>That upon the second accounting the former adjudication as to the allowance of compensation was not binding upon the surrogate and that it was proper for him to remit the petitioner to the proper tribunal for the adjustment of his rights;</p> <p>That under the Federal statutes there is no provision that the attorney for a plaintiff suing informa pauperis shall receive no compensation, and in case of a recovery it is the practice of that court to allow the attorney a quantum meruit;</p> <p>That although the Appellate Division under sections 2586 and 2587 of the Code of Civil Procedure has the same power as the surrogate to decide questions of fact and to receive further testimony and to reverse or modify the surrogate’s decree, nevertheless as the court did not have before it the order of the Federal court fixing the amount of the attorney’s compensation, the matter should be remitted to the surrogate before whom the determination of the Federal court should be presented.</p>

Appeal by William D. Tyndall, as general guardian of Eston E. Devore, an infant, from an order of the Surrogate’s Court of the county of Sullivan, entered in said Surrogate’s Court on the 30th day of December, 1905, denying his motion for the revocation of letters of guardianship theretofore issued to John Z. Twichell.

<p>•Appeal by Sarah A. 0. Murtaugh from an,-orcjer of the Surrogate’s Court of the county of Albany, entered • in said Surrogate’s Court on. the 31st day of July, 1906, striking out from a . decree theretofore entered in said court the provision, directing the petitioner, Richard W. Hurtaugh, to pay costs to the said Sarah A. C. Hurtaugh.</p>

<p>Eminent domain—taking land for improvement of Erie canal—failure to file map, certificate, etc. —when lessee of railroad may enjoin appropriation of street.</p> <p>Entry upon lands by a contractor for the purpose of improving the Erie canal under chapter 147 of the Laws of 1903 without the filing of the map, survey and certificate 'and without notice to the owner, is a trespass for which the State is not liable, but for which the contractor only is liable;</p> <p>When such contractor intends to enter upon and appropriate a street upon which there is a surface railroad without the filing of the map and certificate and without notice,- the railroad is entitled to an injunction restraining the Contractor from entering, excavating or in any way interfering with its structures • or rights.</p> <p>The plaintiff, although the lessee of the railroad, may maintain the action even though its rights be considered personal property, for a lessee may recover not only for injury to his leasehold but for injury to the remainder as well.</p>

Appeal by the American Baptist Home Mission Society and another from a decree of the Surrogate’s Court of the county of Washington, entered in said Surrogate’s Court on the 5th day of May, 1906, settling the accounts of the respondent.

Appeal by the defendant, the United Traction (Comp any, from a judgment of the. County Court of Rensselaer county in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the Ytb day of June, 1906, upon the verdict of a jury for $500, and also from an.ordér entered in said clerk’s office on the Yth day of June, 1906, denyirig the defendant’s motion for a new trial made Upon the minutes. .

Appeal by the defendant, Gaylord and Eitapeno 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. 5tli day of February, 1906, upon the verdict of a jury for $1,467, and also from so much of an order entered in said clerk’s office on the 5th day of February, 1906, as denies the defendant’s motion for a new trial made upon the minutes.

<p>Negligence — trespasser on railroad struck toy train— expert testimony raising question of fact as to ability to stop train.</p> <p>The plaintiff, a trespasser, was struck by a freight train while his foot was caught in a cattle guard in the defendant’s track, and seeks to recover damages for the injuries received. The engineer testified that when 375 feet from the cattle guard he saw the head and shoulders of some one who was swinging his hat. for the train to stop, and that he immediately did all lie could to stop the train. The t,rain consisted of five loaded and two empty freight cars equipped with air brakes. It was descending a grade of about 118,-feet tó the mile at a speed of five or six miles an hour. Two experts testified that under such circumstances the train should have been stopped within 50 to 200 feet from the place Where the power was first applied. / "</p> <p>Held, that the credibility of the experts was for the jury, since upon their-testimony -the engineer might be found negligent, and a nonsuit was error;</p> <p>That the trial judgecouldnot fairly pass upon the-probability of the truth of the evidence until after the jury had considered the cáse.</p> <p>Chester, J., dissented. ■ ' • -</p>

Appeal by the Comptroller of the State of Mew York from a decree of the Surrogate’s Court of the county of Albany, entered in said Surrogate’s Court on the 31st day of July, 1906, confirming the appraisal of the estate of John D. Parsons, Ji\, deceased, under the Transfer Tax Law.

Appeal by .the defendant, Curtis A. Barnum, from an order of the Supreme Court, made at the Otsego Special Term and entered in the office of the clerk of the county of Otsego on the 13th day .of September, 1906, granting a motion made by the receiver of the property of the defendant to renew a prior motion for leave to sell defendant’s interest in certain property and granting permission to make such sale.

Appeal by the plaintiff, Fred R. Badger, from a judgment of the County Court of Franklin county in favor of the defendant, entered in the office of the clerk of the county of Franklin on the 22d day of December, 1905, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s evidence after a trial before the court and a jury, and also from an order bearing date the 22d day of December, 1905, and entered in said clerk’s office denying the…

, Appeal by the defendant; the Village of Oneonta, from a. judgment of the Supreme Court in favor of the -plaintiff, entered in the office of the clerk of the county of Otsego on the ith day of January, 1905, upon-the decision of the.court, rendered after a trial at • the Otsego Trial Term, the jury having been discharged.

' Appeal hy the plaintiff, The Village of Waverly, from a judgment of the- Supreme Court in favor of the defendants, entered in the office of the cleric of the county of Tioga on the 2d day of July, 1906, pursuant to an order entered in,said clerk’s office on the 11th day-of June, 1906,, denying the plaintiff’s application for a judgment condemning the water system belonging to the defendant, the Waverly Water Company, and dismissing the proceeding, and also from the said…

Appeal by. the plaintiff William R. Weed and by-the- defendant, The First National Bank of Saratoga Springs, N. Y.,. from an order of the Supreme Goni-t, made at the Albany Special Term and entered in the office of the clerk'of the county of Saratoga on the 13tli day of July, 1906, granting a motion made by the plaintiff Florence J. Steenbñrgh that Willard Lester be made a party defendant in this action.

Appeal by the plaintiff, Lucius H. Washburn, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 29th day of August, 1906, denying the plaintiff’s motion for a bill of particulars.

<p>Insurance — action on fire insurance policy—defense of breach, of war ranty in application — erroneous exclusion of evidence showing knowledge of danger from incendiarism.</p> <p>When, in an application for fire insurance, the insured in answer to a -question as to whether she had any reason to fear incendiarism answered no, and the defense in an action on the policy is that that representation was untrue, it is error to refuse to admit evidence to show that the husband of the insured prior to the insurance'had told her about fires on the farm started-by,a particular person and had talked with her about fires from timé to time. While such evidence might not be conclusive it is reversible error to exclude it as it bore - directly on the issue. . '</p>

- Appeal by the petitioner,,William C. Taylor, from an order of the Supreme Court, made at the Saratoga Special Tenn and entered in the office of the-clerk of the county of Saratoga on the 30th day of December; 1905, denying the petitioner’s application for a peremptory writ of mandamus.

Appeal by the plaintiff, John- Connor,. from a judgment of the County Court of Washington county, entered in the office of tlie clerk off said county on the 15th day of September, 1906, reversing a judgment of'a justice of the peace .of the town of Greenwich in favor of the plaintiff, entered on the 19th day of May, 1906. The allegations of the complaint are as follows: First.

<p>Appeal by the defendant, The Municipal Telegraph and Stock Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 6th day of December, .1905, upon the report of a referee.</p>

<p>Practice — undertaking on appeal from Surrogate’s Court — no exception to sureties after approval by surrogate — power of Appellate Division to perfect appeal.</p> <p>An undertaking given under sections 2577 and 2581 of the Code of Civil Procedure on an appeal to the Appellate Division from a decree or order of the surrogate is not governed by section 1385 of the Code of Civil Procedure providing for the justification sf sureties. Such latter section relates only to appeals to the Court of Appeals and is not applicable to the Surrogate’s Court. Hence, when such undertaking has been filed with the surrogate and has been allowed and approved by him, an exception to the sureties is not well taken, and a motion to perfect an app.eal under section 1303 of the Code of Civil Procedure will be dismissed.</p> <p>■The remedy, if sureties are insufficient of become insolvent, is to apply for an order requiring a new bond or undertaking or additional securities as the case may require.</p> <p>It is within the discretion of the surrogate whether he will determine the sufficiency of sureties from their affidavits of justification or will require the sureties-to attend and be examined.before approving’ the undertaking. He may establish rules to regulate the justification of sureties in his-own court.</p> <p>The Appellate Division has power to permit an appellant from the Surrogate’s Court to file a new undertaking or do any other act necessary to perfect an appeal</p>

Appeal by the Comptroller of the State of Mew York from' an order of the Surrogate’s Court of the county of Albany, entered in said Surrogate’s Court on the 20th day of July, 1906, affirming an order entered in said Surrogate’s Court on the 16th day of April, 1906, fixing and assessing a tax upon the transfers of property of John Palmer, deceased, under the law relating to taxable transfers, of property.

<p>Appeal by the defendant, the H. P. Snyder Manufacturing Company, from ,a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Herkimer 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 2d day of January, 1906, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendants, Andrew; J. Beam and another, from an order of the. Supreme Court, made at the Monroe' Special Term bearing date the ' tSd. day of December, 1906, and entered in the office of the clerk of the county of Monroe, directing the issuance of a peremptory writ of mandamus.</p>

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 14th day of April, 1906, upon the verdict of a jury for $6,000, and also from an order, entered in said clerk’s office on the 24th day of April, 1906, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Fabrik Schiller’scher Verschluesse Actien Gesellschaft, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 7th day of January 1907, denying the plaintiff’s motion to vacate an order compelling the said plaintiff to give security for costs..

<p>Insurance — assignment by beneficiary of interest in gratuity fund, as collateral, contrary to. provision therein — sustained as to moneys advanced to keep policy alive — second assignment without consideration— appeal — findings not incorporated in report.</p> <p>The by-laws of the blew York Produce Exchange prohibit the assignment or pledge of any interest in the gratuity fund of the exchange by a beneficiary except in so far as necessary to keep the interest of the member alive.</p> <p>An assignment by such beneficiary made before the death of the insúred as ' security for the repayment, of loans made by the assignee to the insured during his lifetime is void.</p> <p>The assignment is enforcible to the extent of moneys paid by the assignee to keep the policy alive.</p> <p>Although such policy becomes assignable by the beneficiary after the death of the insured, yet, when without any new consideration, one who has advanced moneys to the insured during his lifetime and holds an. assignment of the policy by the beneficiary procures a second assignment by representing to the beneficiary that it is made simply to confirm the prior assignment, and upon representations that he had a right to the assignment by reason of moneys advanced to the insured and concealing from the beneficiary his true reasons for the second assignment, the latter is void and ineffective to vest the assignee with a right to the proceeds of the policy except for sums advanced to keep it alive.</p> <p>The fact that at the time of the second assignment the assignee agreed to allow ' the beneficiary to deduct from the proceeds of the policy sufficient money to bury the insured does not furnish a consideration for the assignment.</p> <p>A proposed finding of fact, although marked by a referee, will not be considered on appeal if not incorporated in the report.</p>

<p>Appeal by the plaintiff, Patrick Connolly, 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 22d- day of March, 1906, upon the dismissal of the complaint by direction of the court .after á trial, at the New York Trial Term, and also from an order entered in said clerk’s office on the 19th day of March, 1906, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by. the defendants, Fanny Harris and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Hew York on the 23d day of April, 1906, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 7th day of May, 1906, denying the defendants’ separate motions for a new trial made upon-the minutes.

Appeal by the plaintiff, Anna Seitz, 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 a motion made by Magdalena Messerschmitt to be relieved from her purchase made at a sale pursuant to an interlocutory judgment in partition, upon the ground that the title to the premises in question is unmarketable.

Appeal by the relator, Abraham Kbpel, from an order oh the Supreme Court, made at the New York Special Term and entered in tile office of the clerk of the equnty of New York oil the 12th day of October, ,1906, dismissing a writ of habeas corpus and remanding the relator into custody. .

<p>Husband and wife — divorce — admission of adultery by defendant at trial — collusion.</p> <p>When at the trial of an action for divorce the defendant admits that he committed adultery in company with a detective whom the plaintiff had employed to watch him, and there is evidence that the offense was committed without the consent, procurement or connivance of the plaintiff, and it appears from the defendant’s testimony that he acted intentionally and deliberately, judgment for the plaintiff on the report of a referee should be entered.</p> <p>Moreover, when the defendant has admitted other offenses not committed in company with the detective hired by the plaintiff, and the general allegations of the complaint as to adultery are amended to conform to the proof, the plaintiff is entitled to a decree.</p>

Appeal by 'the plaintiff, Constantino Buccolo, by Théresa Buceólo, his guardian ad- litem* from so much of an order of the Supreme Court, made at the Hew York Special Term and entered-in the office1 of the clerk of the county of Hew York on the 24th day of October, 1906, as denies the, plaintiff's'motion to Vacate an order entered in said clerk’s office on the 4th day of October, 1906, ■ requiring the plaintiff to give security for costs.

Appeal by the defendant, William Hughes, from an order of the Supreme Court, made at the-Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 4th day of December, 1906, denying, the defendant’s motion to vacate a judgment theretofore entered against him by default upon substituted servipe of summons, or to open such default.

Appeal by the plaintiff, Leo Schlesinger, as receiver, etc., from an order of the Appellate Term of The Supreme Court, entered in the office of the cleric of the county of Pew York on the 13th day of Tune, 1906, reversing a judgment of the City Court of the city of Pew York in favor of the plaintiff, entered on the 6th day of February, 1906. .. . .

Appeal by the defendant, Mannie Gluck, from' a judgment of the Court of General Sessions of the Peace in and for the county of New York, entered on the 4th day of October, 1906, convicting the defendant of the crime of grand larceny in the second degree.

Certiorari issued out of the Supreme Court and attested on the Jth day of July, 1905, directed to William McAdoo, as police commissioner of .the city of New York, commanding him to certify and return to the office of the clerk of the county of New York, all and singular his proceedings had in relation to the dismissal of the-relator from, the police force of the city of New York.

Appeal by the defendant, Isaac C. Bishop, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 13th day of April, 1906, confirming the report of a referee and sustaining a writ of habeas corpus, and also from an order entered in said clerk’s office on the 13th day of June, 1906, denying the defendant’s motion to vacate the above order and dismiss the writ and amending said prior order.

Appeal by the plaintiff, Henry M. Black, 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 oh the 9th day of March, 1906, upon, tlié decision' of the court rendered after a tidal without a jury at the New York Trial Term.

Appeal by the defendant, the Empire State Surety Company, from an interlocutory judgment cf the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 29th day of October, 1906, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant’s demurrer to the amended complaint;

<p>Contract to supervise - construction of work for percentage, of total cost — right to percentage on damages paid to contractor for delay.</p> <p>One who has entered into, a contract with a municipality to prepare plans and specifications for a municipal work and to supervise the construction for five per Cent of the total cost thereof, and has been paid his full percentage on the contract price of the structure, is not entitled to recover an additional percent- . age upon a recovery had by the contractor against the city for damages caused by a delay in the work whereby the contractor was obliged to pay an advanced price for materials. ■ ~ •</p> <p>Such damages were not part- of the cost of the construction within the meaning of the - plaintiffs contract for services and were recovered not upon the provisions of the contract but because of a breach thereof.</p> <p>Houghton, J., and Pattebson, P. J.,. dissented, with opinion.</p>

<p>Crime — grand larceny, first degrée — evidence — false representations as part of res gestee — prior arrest and extradition of defendant.</p> <p>The defendant was indicted and convicted' of grand larceny, first degree, in obtaining money "by falsely representing that a certain bond upon which he obtained a loan was a subsisting and outstanding lien. Evidence" considered and conviction sustained.</p> <p>When, in addition to the misrepresentation as to the validity of the bond, the defendant also made false statements as to the existence of a trust company of which he claimed 4o be attorney and that the person who wished to borrow money on the bond was a wealthy man, when in fact he was a notorious' criminal, such minor false representations, connected with the principal misrepresentation, are part of the res gestee and evidence thereof is admissible.</p> <p>Admission of evidence that the defendant was known by different' names in various parts of the world and was under arrest at various times and was under requisition for extradition to another State is not error when shown to excuse the delay in-bringing the defendant to trial. Said evidence is also admissible to identify the defendant and also to show flight from the scene of his crime in . this State.</p> <p>When the fact is admitted that the defendant received a check for twenty-five dollars for alleged services as an attorney in the transaction, the contents of the check may be shown without producing the instrument'when the defendant is not indicted for receiving money on that'check. •</p> <p>When the defendant under indictment is traveling under many aliases, a witness may state from what source he received' his information as to the whereabouts of the defendant, even though the -person who gave the information be not produced as a witness.</p>

<p>Contract — facts raising the question as to whether sale was absolute or conditional.</p> <p>When in an action for the breach of a contract to sell and deliver lumber the case is tried upon the original oral contract and the defendant gives evidence that in maldng'the order slip, which was shown to the plaintiff at the time, the defendant’s agent wrote thereon “ if you can’t fill order this way, don’t ship it,” a question of fact arises as to whether the fulfillment of the original contract was conditional upon the defendant’s ability to fill the order or was absolute, and it is- error to withhold that question from the jury and to direct • an assessment of damages.</p>

Appeal by the defendants, Louis 0. Tiffany and others, as executors, 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 bn the 27th day of November, 1906, denying the said defendants’ motion for an order compelling the plaintiff to accept service of their amended answer to the amended complaint herein.

Appeal by the defendant, Samuel Levy, from an order of the Supreme Court, made at the Hew York Trial Term and .entered in the office of the clerk of the county of Hew York on the 12th day of December, 1906, granting the plaintiff’s motion for a preference.

Appeal by Henry Corn from a judgment óf the Supreme Court in favor of Luke A. Burke, entered in the office of the clerk of the county of Hew York bn the 9th day of October, 1906, upon an award made by an arbitrator.

Appeal by the defendant, Joseph P. Keenfin, from an order of the Supreme' Court, entered in. the office of the clerk of the county of Kew York on the 9th day of FTovember, 1906, denying a motion to restore the action to the calendar. ...

Appeal, by the plaintiff, Shepard N. Edmonds, 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 November, 1906, granting the defendant’s motion to be relieved from a stipulation consenting to the inspection of certain of defendant’s books and papers and denying the plaintiff’s motion for an inspection thereof.

Appeal by the defendants, Abner T. Bowen 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 18th day of April, 1906, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendants, Herbert W. Hamlin 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 ITew York on the- 25th day of July, 1906, upon the decision of the court rendered after a trial at the Hew York Special- Term.

Appeal by the defendant, Tom L. Johnson, as executor, etc.,’ from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of .the county of New York on the 1st day of May, 1906, Upon the verdict of a jury, 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.

Appeal by the defendants, Grant Squires and another, as executors, etc., and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 17th day of September, 1906, upon'the decision -of the court rendered after a trial at the Hew York Special. Term.

Appeal by the defendant, Washington Palmer, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of blew York on the 20th day of April, 1906, upon the decision of ,the court rendered after a trial at the blew York Special Term adjudging that the plaintiff had acquired a vendee’s lien against certain premises as purchaser from the defendant.

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

Appeal by the plaintiff, Abraham Elterman, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk' of the Bounty of Hew York on the 1st day of February, 1906, upon the decision of the -court, rendered after a trial at the Hew York Special Term, dismissing the .complaint upon the merits.

Appeal by Henry B. Ickelhéimer, as executor, etc,, of Charles Bubens, deceased, from an-order of-the Surrogate’s Court of the county of Hew York, entered in said Surrogate’s Court on the 24th day of December, 1.9.06, denying the appellant’s application for leave to amend the petition filed herein.

Appeal by the .defendant, Rignal D. Woodward, from -an inter- - locutory judgment of the Supreme Court in favor of the plaintiff, entered in ‘the office of the clerk of the county of Hew York on the 9th day of October, 1906, upon the decision of the court, rendered after a trial at the Hew York Special Term, sustaining the plaintiff’s demurrer to the first defense in the amended answer.

■ Appbab by the defendant, Napoleon B. Dotson, 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 May, 1906, 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 bearing date the 21st day of May, 19Ó6, and entered in said clerk’s office,, denying the defendant’s motion for a new tidal made upon the minutes.…

Appeal by the defendant, the New York Herald 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 15th day of June, 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 made upon the grounds that the complaint fails to state facts sufficient tp constitute a cause of action. - ; ■

Appeal by the defendant. -Maynard N.. Clement, as Commissioner, etc., from an order Of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York On the 6th- day of December, 1906,. granting a, peremptory writ of mandamus commanding him to prepare and ■execute orders -for the payment of a rebate, - upon the surrender of a certain liquor fax certificate.

Appeal by the defendant, E. Burton Allcutt, from a judgment of the Court of Special Sessions.of the city of New' York, First Division, rendered on the 4th day of January, 1906, convicting him óf thé. crime, of practicing medicine without .being lawfully authorized and registered, in violation of section 158 of chapter 661 of. the Laws of .1893, as amended by chapter 398 of the. Laws of 1895.

Appeal by Elbridge T. Gerry and others from an order of' the Supreme Court, made at the Yew York Special Term and entered in the office of the. clerk of the county of Yew York on the 2oth day of July, 1906, overruling objections to the confirmation of the corrected report of the commissioners of estimate and assessment in condemnation proceedings, and also from an intermediate order entered in said clerk’s office on the 16th day of May, 1906,-sustain-ing the objections of…

<p>Appeal by the plaintiff, Sarah A. O’Reilly, as executrix,- etc., from an order of the Supreme Court, made at the New Y orle Special Term and entered in'the' office of the clerk of the county of New York on the 27th day of December, 1906, denying the plaintiff’s •motion for an order requiring the attorneys for the defendant Skelly to accept and admit service of the amended complaint as of December 12, 1906.</p>

Appeal by the plaintiff, Sarah A. O’Reilly, as exequtrix, 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 10th' day of December, 1906, directing the plaintiff to serve an amended complaint separately stating and numbering the alleged causes of action attempted to be pleaded.

Appeal by the defendant, Post & McCord, 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 llth day of December, 1906, denying the defendant’s motion for an order requiring the plaintiff to file security for costs.

<p>Appeal by the plaintiff, Cliellie dayman, 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 22d day of June, 1906,' upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.</p>

Appeal by the plaintiff, John Fulton, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New. York on the 9th day of June, 1906, upon the decision of the court, rendered after a trial at the Hew York Special Term, sustaining • demurrers to both lauses of action set forth in the amended complaint.

Appeal by the defendant, the Cananea Consolidated Copper 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 30th day of October, 1906, denying said defendant’s motion to-vacate the service of a summons upon its president.,

<p>Appeal by Sarah A. O’Reilly, as executrix, etc., from an order of tlie Surrogate’s Court of the county of Hew York, entered in said Surrogate’s Court on the 12th day of December, 1906, requiring her to file a duly verified account of the proceedings of said Hugh O’Reilly, deceased, as executor of and trustee under the will of Patrick A. Fogarty, deceased.</p>

Appeal by the defendant, Isaac V. Brokaw, 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 February, 1906, upon the verdictpf a jury for $10,000, and also from an order entered in said .clerk’s office on the 17th day of February, 1906, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, John H. -Wood bury Dermatological Institute, from so much of an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 30th day of Hovember, 1906, as denies the defendant’s motion for an order directing the clerk of the Supreme Court to tax the costs in this action in favor of the defendant, and also from an order entered in said clerk’s office on the 12th day of December,…

<p>Appeal by the defendant, Philip Weinseimér, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, rendered on the 14th day of November, 1904, convicting the defendant of the crime of extortion.</p>

Appeal by the applicant, -Bernard Giles, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 23d day of November, 1906, denying the appellant’s application to. strike the name of Henry Titus from the enrollment book óf the twentieth election district of the twenty-fifth Assembly district in the county of New York.

Appeal by the applicant, Dominick Dalessandro, 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 Hew York on the 23d day of Hovember, 1906, denying the appellant’s application to strike the name of James O’Brien from the enrollment book of the sixteenth election district of the first Assembly district in the county of Hew York.

Appeal by the applicant, Landon T. Davies, from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of. the clerk of the county of Mew York on the 23d day of Movember, 1906, denying the appellant’s application to strike thena^ne of John McGuire from the enrollment book of the twenty-seventh election district of the twenty-fifth Assembly district in the county óf Mew York.

Appeal by'the defendant, Cassíus- M. Wicker, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 29th day of June, 1906, upon the verdict of a jury rendered by direction of the court after a trial at the Hew York Trial Term, and also from an order entered in said clerk’s office on the 5th day of .July, 1906, denying' the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendants, Patrick- Jones and another, and by the defen dant-Peter Doelger, respectively, from two separate interlocutory judgments of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk, of -the county of New York on the 31st day of July, 1906, upon the decision of the' court, rendered after a trial at the New York Special Term, overruling the said defendants’ demurrers to the complaint. .. ~</p>

Appeal bv the defendants, William P. Baird 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 26th day of Hay, 1904, upon the verdict of a. jury, and .also from an order entered in said clerk’s office on the 24th day of Hay, 1904, denying the defendants’ motion for a new trial made upon the minutes, with notice of an intention to bring up for review upon said appeal an order entered…

<p>Appeal by the plaintiff, Alfred Hath an, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 24th day of December, 1906, denying the plaintiff’s motion to continue pendente lite an injunction theretofore granted herein.</p>

Appeal by the defendant, Herman Gr. Daiker, from an order of -the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York'on the 10th day of December, 1906, denying the said defendant’s motion that the plaintiffs, as trustees and executors, be directed to pay certain moneys for the maintenance of said defendant.

Appeal by the plaintiff, Ellen Coffey, as administratrix, etc., . from an order of the Supreme Court, made at the ¡New York Trial Term and- entered ih the office of the clerk of the county of Hew York on the 2d day of April, 1906. • ' .

Appeal by the plaintiffs, Edwin F. Hatfield and others, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 10th day of December, 1906, denying the plaintiffs’ motion for-an injunction.pendente lite-and vacating a preliminary injunction theretofore granted.

Appeal by Josephine Crist Delmonico from a decree of the Surrogate’s Court of the county of Mew York, entered in said Surrogate’s Court on the 27 th day of December, 1906, revoking as to herself letters testamentary theretofore issued to her and Albert Thieriot jointly, and removing her as testamentary trustee- under the last will and testament of Eosa Delmonico, deceased.

.Appeal by the defendants, David Stevenson Brewing Company and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of ¡New York on the 23d day of May, 1906, upon the decision of the court, rendered after a trial at the ¡New York Special Term, overruling the said defendants’ separate demurrers to the amended complaint.

Separate Appeals by the defendants the Smithsonian Institution and another and by the defendants Norman C. Andrews .and others from different portions of a judgment of the Supreme Court in. favor of the plaintiff and certain of the defendants, entered in the office of the cleric of the county of ..New York on the 25th day of January, 1906, upon the decision of the court rendered after a trial at the'New York Special Term.

This controversy, is submitted under section 1279 of the Code of Civil Procedure upon an agreed statement of facts, as follows: The Bankers’ Life Insurance Company of tlie City of Hew York is a corporation originally 'organized as a fraternal organization March 24,1869, under the name of “ Bank Clerks’ Mutual Benefit Association of the City of Hevv, York.” Oil the 15th day of August, 1884, it was formally incorporated -under the same name and was thereafter on June 28, 1893,…

Submission of a controversy -upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure. The Bankers’ Life Insurance Company of the city of New.

Submission of a controversy upon ah agreed statement of facts pursuant to section 1279 of tlié Code of Civil Procedure/ The Bankers’ Life Insurance Company of the City of New York is a corporation originally organized as a fraternal, organization on March 24, 1869,-under the name of the “Bank Clerks’ Mutual Benefit Association of the City of 'New York.” ■ On the 15th day of August, 1884, it was formally incorporated under chapter 175.of the Laws of 1883, under, the same,…

Appeal by the defendant, The New York Central and Hudson Biver Bailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 16lh day of February, 1906, upon the verdict of a jury for $17,500, and also from an order entered in said clerk’s office on the 16th day of February, 1906, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Aaron J. Colnon, 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 4th day of January, 1906, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the complaint upon the merits.

<p>Appeal by the plaintiff, Louis A. Heitz, from a judgment of the County Court of Westchester county j entered in the office of the clerk of the county of Westchester on the. 30th day of June, 1906j upon the' dismissal of the complaint by direction of the court at the, close of the plaintiff’s case, and also from an order entered in said' clerk’s office on'the 5tli day of July, 1906, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by Gittle Kurtz 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 4th day of December, 1906.

Appeal by the plaintiff, Joseph L. Schackter from a judgment of the Municipal Court of the city of Mew York, borough of Brooklyn, in favor of the defendants, dismissing the-complaint upon the merits.-

Appeal by the plaintiff, Archibald 0. Shenstone, from an order of the Supreme Court, made at tlie Kings County Special Term and entered in the office of the clerk of the county of Kings on the 20th day of November, 1906, as amended by an order entered in said clerk’s office on the 22d day of November, 1906.

Appeal by the plaintiff, John R. Hegeman, from, a judgment of the Supreme Court in favor of the defendant, entered in the. office of the clerk of the county of Westchester on the 2d day of August, 1906, upon the decision of 'the court, rendered after a trial at' the Westchester Special Term, dismissing the complaint upon the merits.

<p>Appeal by the defendants, George W. Egbert and another, from an interlocutory judgment of thé Supreme Court in favor of .the plaintiff, entered in the office of the clerk of the eotinty of Kings on the 5th day of .June, 1906, upon the decision of the court rendered after a trial at.the Kings County Special Term.</p>

<p>Appeal by the defendant, Franklin E. Saunders, from a judgment of the Supreme Court.in favor of the plaintiff and the defendants Snedeker, entered in the office of the clerk of the county of Kings on the 13th day of June, 1905, upon the verdict of a jury, rendered by direction of the court after a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 15th day of June, 1905, denying the appellant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the plaintiff, Augustus H: Grote, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 25 th day of August, 1906, upon thé decision of the court, rendered after a trial at the Kings County Trial Term, a .jury having been waived, dismissing the complaint.</p>

Appeal by the defendant, The City of Hew York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 1st day of May, 1906, upon the decision of the court rendered after a trial at the Kings County Trial Term, a jury having been waived.

<p>Attornéy and client — summary proceeding to compel attorney to pay over — power of referee — evidence — practice — when finding and conclusions need not "be separately stated and numbered.</p> <p>A reference had in a summary proceeding to compel an attorney to pay over moneys to a client is for the purpose of informing the- conscience of the court and the latter may adopt or disregard the report of the referee. The report, however, is entitled to consideration by reason of the. fact that the referee saw and heard the witnesses.</p> <p>A referee ordered to report the evidence with his opinion is not bound to take irrelevant testimony; - contra, if he be ordered to take testimony only. -</p> <p>It is not error for such referee to exclude a question put to the respondent, on cross-examination asking whether other clients were making claims against him for money collected and not reported. An offense is not proved by proof of another offense, and such proof is not relevant upon the legal doctrine of probabilities. This rule obtains both in civil and criminal cases and in cases involving the tprtious withholding of property which may be made the basis . of a criminal case;</p> <p>The exception to the rule exists'Only when the repetition of the offense negatives thq plea of Ignorance, or accident or indicates that the act under investigation .was one of a series involving a fraudulent design.</p> <p>The requirement of section 1032 of the Code of Civil Procedure, that the referee separately state and number the facts found and conclusions Of law, does not ■ . apply to a summary proceeding to compel an attorney to pay over moneys ' to his client.</p>

Appeal by the defendant, The Empire State Surety Company, from an. order of the Supreme Court, made at the' Kings County Special Term- and entered in the office of the clerk of the county of Kings on the 24th day of April, 1906, denying the defendant’s motion for an order retaxing the plaintiff’s bill of costs.

Appeal ‘by the defendant, The Brooklyn Heights Bailroad 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 1st day of June, 1906, upon the verdict of a jury .for $200, and also from an order entered in said clerk’s office on the 29th day of Hay, 1906, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant,, Clarence M. Mendenhall, from a judgment of the County Court of Westchester, county in favor of the plaintiffs, entered in the office of the clerk of' the comity of Westchester on the 21st day of February, 1906, upon the verdict of a. jury, and also from an order entered in said clerk’s' office on the 15tli day of March, 1906, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Henry R. Cook, as auditor, etch, -and others, from an order of the Supreme Court, made at the Rings County Special Term and entered in the office of the clerk of the county of Richmond on the 16th day of January, .1907, granting .the relator’s motion for a peremptory writ of mandamus.

<p>Appeal by the defendant, the Barber Asphalt Paving Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 20tli day of March, 1906, upon the verdict of a jip-y, and also from an order entered in said clerk’s office ón the 15th day of March, 1906, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the plaintiff, The Ben Franklin Transportation Company, from a judgment of the County Court of Westchester county in favor of the defendant, entered in the 'officó of the clerk of the county of Westchester on the 16tli day of July, 1906, upon the verdict of a jury, and also from an order entered in said clerk’s -office on the 22d' day of March, 1906, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by William C. Wilson, as Comptroller of the State of Hew York, from a decree of the Surrogate’s Court of the county of Westchester, entered in-said Surrogate’s Court on the 8th day of December, 1906, reversing an order entered- in said court on the 80th day of April, 1906, assessing a tax upon the property of Abram E. Strang, -deceased.

Appeal by the plaintiff, Eugene G. Pomeroy,, from a. judgment of the Supreme Court in favor of the defendants, entered in tire office of tlie cleric of the county of Queens on the 16th day of March, 1906, upon the .decision of tlie court,. rendered after a trial at the Queens County Special Term, dismissing the complaint upon the merits. .

. Appeal in the first above-entitled proceeding by William C. Wilson, as Comptroller of the State of Mew York, from-a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 19th day of March,, 1906, declaring the estate of Mary .Costello, deceased, to be exempt-from a transfer tax.

Appeal by the defendant, Louis Pincus, from an order of the Supreme Court, made at. the Kings County Special Term and entered in the office df the clerk of the county of Kings on .the 3d day of January, 1907, denying the defendant’s motion to compel the plaintiff to separately state and number the causes of action set forth in the complaint.

Appeal by-the petitioner, the City of Mew York, from á judgment of the Supreme Court, entered in- the office of the clerk of the county of Putnam on the 9th day of April, 1906, pursuant to an • order made at the Kings County . Special Term and entered in said clerk’s office on the 24th day of March, 1906, quashing a writ of certiorari theretofore issued herein, and also from such order directing the entry of the said judgment:

Appeal by the defendants, Timothy D. Sullivan and others, from an order of the Supreme Court,, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 3d day of December, 1906, denying the'defendants’ motion for a reference to ■ ascertain the damages alleged to have been sustained by reason of an injunction herein.

Appeal by the plaintiff, J. J. Spurr & Sons (Incorporated), 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 8th day of Hovember, 1906.

Appeal by the plaintiff, Barnet Shapiro, and by the defendants, Marcus Michel and another, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn,-in favor, of certain of the defendants rendered on the 3d day of February, 1906.

Appeal by the defendant, The Empire State 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' Kings on the 9th day of March, 1906 upon the verdict of a jury rendered by direction of the court, and also (as stated in the notice of appeal) from an order entered in said clerk’s office on the 20th day of February, 1906, denying the defendant’s motion to strike the case from the calendar.

Appeal by the plaintiff, Charles Metz, from portions of an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Kings on the 12th day of April, 1906, upon the decision of the court rendered after a trial at the Kings County Special Term. Suit for specific performance of a contract to convey real property.

Appeal by tlie defendant, Mary O’Neill, from an order of the County Court of Kings county, entered in the office of the clerk of the county of Kings on the 17th day of December, 1906, dismissing the appeal for lack of jurisdiction.

Appeal by the plaintiff, Henry H. Petze, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 6th day of July, 1906, upon the decision of the court, rendered after a trial at the Kings County Special Term, Sustaining the defendant’s demurrer to the complaint.

Appeal by tlie defendant, The .Baltimore and Ohio 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 Westchester on the 11th day of October, 1905, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of October, 1905, denying the defendant’s motion for a new trial made upon the minutes. ' Since the judgment was entered the plaintiff, Lizzie Ubart,…

Appeal by the defendant, The F. Wesel Manufacturing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 11th day of May, 1906, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 14th day of May, 1906, denying the defendant’s motion for a new.trial made upon the minutes.

■ Appeal by the. defendant, Jacob Albert, from an order of the County .Court of Kings county, entered in the office of the clerk of the county of Kings, on the 26th day of January, 1901, denying the defendant’s motion to compel the plaintiff to separately state and number'the two causes of action set forth in the complaint.

Appeal by the defendant, Jeremiah Boberts, 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 September, 1906, denying the defendant’s motion to change the place of trial from the county of Kings to the county of Bensselaer.

Appeal by the plaintiff, Catherina Haggblad, as administratrix, ■ etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Kings on the 18th day of June, 1906, upon, the dismissal of the complaint by direction of the court at the close of the plaintiff’s case after a trial at the Kings County Trial Term. * The defendant was building a passenger platform ón one of the stations of its elevated railroad.

. Appeal by the defendant, The Tarrytown, White Plains and Mamaroneck Railway Company, from an interlocutory judgment of the Supremo Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 23d day of July, 1906, upon the decision of. the court, rendered after a trial at the Westchester Special Term, overruling the defendant’s demurrer to the complaint.

<p>. Appeal by .the defendant, the Franklin H. Kalbfleisch 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-Kings on the 10th day of July, 1906, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling the defendant’s demurrer to the complaint.</p>

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 21st day of February, 1906, upon the verdict of a jury for $500, and also'from an order entered in said clerk’s office on the 19th day of March, 1906, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The City of Hew York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on- the 30th day of March, 1906,, upon the yerdiot of a jury for $2,000, and also from an order entered in said clerk’s office on the 5th day of April, 1906, denying' the defendant’s • motion for a new' trial made ,upon the minutes.

. Appeal by the plaintiff, .H.efiry Allan Pjt-ice, from á judgment, of the Supreme Court in faWr of the defendant, entered in the office of the clerk of the county of Kings on the 'Tth day of June, 1906, as resettled by an order entered in said clerk’s office on the 25th day .of June, 1906, upon the dismissal of the complaint, by' direction of the court after a trial at thé Kings County Trial Term.

Appeal by the defendant, The Department of Health of the City of Hew York, 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 Kings on the 17th day of May, 1906, granting the relator’s motion for a peremptory writ of mandamus requiring the board of health of the city of Hew York to rescind its summary revocation of the relator’s permits to carry on the business of selling milk at retail at his place of…

Appeal by tlie plaintiff, Solomon L. Réiss^ as- surviving partner, etc., from a judgment of -tile Municipal' Court of tlie’' city - of-[New York,. borough' of Brooklyn-, in favor of the defendants, -rendered on the 9 th day of .April-, 1906.

Appeal by the defendant, the Brooklyn Borough Gas Company, from a judgment of the Municipal Court of the city of Mew York in favor of the plaintiff, and also from an order denying the defendant’s motion for a new trial made upon the minutes. The plaintiff made a written application to the defendant to have her hotel supplied with gas, and it complied therewith in May, 1904. The bills therefor were rendered and paid weekly up to the following September.

Appeal by the plaintiff, Annie C- Hoff, from a final order of the Municipal Court of the city of Kew York, borough of Brooklyn, rendered on the 7th day of May, 1906,, dismissing the petition upon the merits, in a summary proceeding brought by a landlord to ■ remove a tenant. The lease was in writing and was made on May 1, 190,3. .It was for a term of one year from said May 1 at a yearly rent of $600 payable in equal monthly payments on the 10th day of each month.

Appeal by the plaintiff, Fannie P. Stratton, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 30th day of April, 1906, upon the dismissal of the complaint by direction of the. court after .a trial at the Kings . County Trial Term, and also from an order bearing date the 26th day of April, 1906, and'entered in said clerk’s office, denying the plaintiffs motion for a new trial made upon the minutes;

Appeal by Margarethe C. Marx, individually and as executrix, etc., of Frederick Marx, deceased, from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 15th day of February, 1906, judicially settling her accounts as executrix, etc., of Frederick Marx, deceased.

Appeal by the defendants, James Hogan and another, from an' order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Rockland on the 29th day of October, 1906. , • -

<p>Municipal corporation — liability for injury to pedestrian from, falling over a loose flagging lying upon a sidewalk which was being repaired—contributory negligence.</p>

Appeal by the plaintiff from a judgment of the Supreme Court, entered upon the decision of a referee, dismissing the complaint. Judgment affirmed, with costs. No opinion. (Dissenting opinion by Laughlin, J.) Order filed.

Appeal by the plaintiff from ah order entered in the Tompkins county clerk’s office on the 17th day of September, 1906, denying plaintiff's motion to strike out certain matter from the answer of certain defendants as irrelevant and scandalous, '

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

<p>Appeal from á judgment entered upon a verdict directed by the court.</p>

<p>Appeal from a judgment dismissing the complaint after a trial at Special Term.</p>

Judgment and order reversed and new trial ordered, with costs to appellant to abide event, unless plaintiff stipulates to reduce verdict to §5,000, in which event judgment as so,modified and order affirmed, without costs;