Volume 118 — New York Appellate Division Reports

<p>Appeal by the plaintiffs, Anna Louise Coston and others, from, an interlocutory judgment of the Supreme Court in favor of the defendant, American Security and Trust Company, as executor, etc., entered in the office of the cleric of the county of Richmond on the 6tlrday of August, 1906, upon the decision of the court, rendered after a trial at the. Richmond Special Term, sustaining the said defendant’s demurrer to the complaint.</p>

Appeal by the defendant, Charles D. Thompson, 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 June; 1906, overruling the said defendant’s demurrer to the complaint as frivolous.

Appeal by tbe defendants, Talbot J. Taylor and others, from a judgment of the Supreme' Court in favor of tbe plaintiff, entered in tbe office of the clerk of the county of Kings on the 8tli day of December, 1905, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 20th day of December, 1905, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the pdaintiff, entered in the office of the clerk of the county of Kings on the 1st day of June, 190.6, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 18th day of June, 1906, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Samuel Franck Edmead, from a judg- . ment of the Municipal Court of the city of New York in favor of the plaintiff for the sum of twenty-eight dollars and thirteen cents.

<p>Partnership — will — legatees not liable as partners when representative continues business as authorized.</p> <p>Beneficiaries who-consent that an administrator with the will annexed continue the testator’s business as directed by the will are not partners nor individually liable to one who deals with the administrator with knowledge of his representative capacity.</p> <p>An executor authorized to continue the testator’s' business is not entitled to involve the general assets of the estate, and persons dealing with him are bound to know that they can resort only to the property embarked in the business. They have no recourse to the general assets of the estate, nor can they look to the beneficiaries individually. The rule holds although, with the consent of the beneficiaries, the administrator continues the business for a year beyond the time set by the will.</p> <p>‘Under such circumstances the beneficiaries are not individually liable because the property has been transferred to them and by them to a corporation of which they are stockholders.</p>

<p>Payment — when moneys not paid under mistake of fact — conveyance by devisee when child born after making of will.</p> <p>The lack of authority of a sole devisee to convey lands when a child was horn to the testator after the making of the will is not a question of fact, but one of • law, and one who has taken title and paid a subsequent mortgage on lands conveyed under such circumstances cannot recover on the theory that the payment was made under a mistake of fact, where there is neither testimony nor finding that the plaintiffs were ignorant or mistaken respecting any of the facts involved.</p> <p>The deed of the widow was not invalid, being effective to convey her dower ■ right, and moreover, as: the widow's action for dower was not barred, the person paying the mortgage was subrogated to the equitable rights of the ’ mortgagee; "</p> <p>The cases in which moneys paid may be recovered may be grouped under three-heads: (1) When payments, are induced by fraudulent misrepresentation; (2) when made under coercion either in fact or in law;. (8) when made under a mistake of fact.</p> <p>Bich, J., dissented.</p>

Appeal by the plaintiff, Catherine Bender, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the cleric of the county of Queens on the lltli day of August, 1905, upon the decision of the court, rendered after a trial at the Queens County Special Term, dismissing the complaint upon the merits. Judgment affirmed, with costs, oh. the opinion of Mr. Justice Wilmot M. Smith.

Appeal by Theodore A. Bingham, as police commissioner, 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 Kings on the 14th day of Hovember, 1906, granting a peremptory writ of mandamus commanding said appellant to restore'the petitioner herein to duty as a patrolman in the police department of the city of New York.

Appeal by the defendant, The Bankers’ Loan and Investment Company, 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 9th day of October, 1906, upon the report of a referee.

<p>Appeal by the defendant, the Gotham-Attucks Music 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 28th day of January, 1907, appointing a receiver pendente lite.</p>

<p>Sale — failure to file contract of conditional sale — mechanic’s lien — election of remedies — when purchaser of premises not liable for conversion.</p> <p>The plaintiff installed a heating plant in a building under a- conditional contract of sale providing that the title remain in the plaintiff until he was fully paid in cash. After the installment of the' plant and before payment, the owner of the building conveyed the premises, and the plaintiff thereafter filed a mechanic’s lien against whatever interest the former owner had in the premises. The pur- • chaser of the property in his turn conveyed to the defendant, of whom.the plaintiff demanded a return of the heating plant, and it being refused sued for conversion.</p> <p>Meld, that the complaint was properly dismissed because the contract of conditional sale had not been filed in the registrar’s office until six months after the defendant had purchased. the property without notice of the plaintiff’s claim;</p> <p>That although the plaintiff and the original owner could by agreement reserve the character of the heating plant as personalty, such agreement was not binding against a bona fide purchaser ’who took the plant as part of the realty without notice; "</p> <p>That as the plaintiff had filed a mechanic’s lien against the interest of the original owner, it was inconsistent with his claim of title to the heating plant, and was an election of remedies; -</p> <p>That as the plaintiff had not complied, with chapter 698 of the' Laws of 1904, providing that every' contract of conditional sale of chattels attached to a building shall he void against a subsequent bona fide purchaser of the premises unless the' conditional contract he filed, the defendant in purchasing the property was justified in assuming that no claim of title would he made to the heating plant, especially so as a mechanic’s lien therefor had been filed.</p>

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 cleric of the county of New York on the 6th 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 Bltli day of March, 1906, denying the defendant’s motion for a new trial made upon the minutes.

<p>Practice—case on appeal — exceptions improperly stricken out.'</p> <p>When an exception "is taken to the court’s refusal to charge, specifically and in. the language requested, certain written requests submitted, and the court states that the requests will be given to the stenographer to copy in the record, a specific exception to the denial of each of such requests should not he stricken from the printed case upon the theory that the “ exceptions ”" did not appear in the stenographer’s minutes.</p> <p>A case should be made up so as to state the truth as to what took place at the trial, and substance should not be sacrificed to form.</p>

Appeal by the defendant, William R. Warner, individually, 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 May, 1906, upon the decision of the court rendered after a trial at the New York Special Term.

Separate appeals by the defendants, Martin C. Woodruff and James F. Ballard, 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 4th day of May, 1906, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal.by the defendant, The New York and Long Island Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8th day of May, 1906, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 10th day of May, 1906, denying the defendant’s motion for a new trial made upon the. minutes.

Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of March, 1906, upon the verdict of a jury for $1,000, 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 plaintiff, Mary Murphy, 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 30tli day of April, 1906, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case after a trial at tlió New York Trial Term.

Appeal by the defendant, Christopher Campbell, 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 29th day of May, 1906, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal .by the defendants, John II. Olmsted and another, from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 2d day of August, 1906, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendant, Robert E. Lane, 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 6th day of July, 1906, upon the decision of the court rendered after a trial at the New York Trial Term without a jury.

Appeal by the defendant, the Terry & Tench Construction 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 9th day of November, 1906, authorizing the service of an amended summons and complaint, amending the name of the defendant by striking out the word “ Construction” so that the name of the defendant is changed from the Terry & Tench Construction Company to the Terry &…

Appeal by the lienors, Eugene A. Rudiger and another, 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 13th day of December, 1906, canceling a certain municipal lien against a fund in the hands of the comptroller of the city of Mew York applicable to the payment of the amount due the respondents upon their contract with the aqueduct commissioners for the construction of the new…

<p>Mechanic’s lien—discharge thereof on "undertaking by assignee.</p> <p>Although the statute only expressly authorizes the discharge of a mechanic’s lien upon the application of a contractor who gives an undertaking, an assignee is equally entitled to the discharge, whether he be assignee of the entire contract or a part only of the moneys due thereunder.</p> <p>But the assignee, whether of the whole contract or part thereof, must give an undertaking for the payment "of any judgment which may he recovered in an action to enforce the lien,” even though thereby he becomes responsible for the debts of third parties.</p>

Appeal by the plaintiff, the Standard Materials 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 2d day of January, 1907, granting the defendant’s motion for a bill of particulars.

Appeal by the defendant, the Consolidated Gas' Company of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of February, 1907, granting an injunction pendente lite restraining the defendant from discon tin n- . ing, cutting off or refusing to continue to supply the plaintiff with gas at his premises.

Appeal by the plaintiff, Wilson R. Hunter, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 28th day of June, 1906, reversing a judgment of the City Court of the city of New York in favor of the plaintiff, entered on the 9th day of December, 1904, and dismissing the complaint. ■

Appeal ■ by the defendant, William Whitmer & Sons, Incorporated, 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 June¿ 1906, upon the. verdict of a jury, and also from an order entered in said clerk’s office on the 12th day , of July, 1906, denying the defendant’s motion for a new trial made ■upon the minutes.

Appeal by the defendants, George Griot and another, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of Mew York on the 26th day of March, 1906, affirming a judgment of the City Court of the city of Mew York in favor of the plaintiff, entered in the office of the clerk of said court on the 26th day of October, 1905, upon the verdict of a jury rendered by direction of the court, and also affirming an order of said City…

<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, The Star Fire Insurance Company, from an interlocutory judgment of the Supreme Court in favor of the defendant Charles E. Ring, entered in the office of the clerk of the county of New York on the 27th day of October, 1905, upon the decision of the court, rendered, after a trial at the New York- Special Term, sustaining the said defendant’s demurrer to the complaint.

Appeal by the defendants, Mary Wyman, individually and as executrix, etc., and others, from portions of a judgment of the Supreme Court, entered in the office of the clerk of the county of New. York on the 3d day of March, 1905, upon the decision of the court rendered after a trial at the New York Special Term. Also an appeal by the defendants, Randolph A. Wyman and. Gerard B. Heilman, from the whole of said judgment.

<p>Appeal by Hattie-Lorsch from a decree of the Surrogate’s'.Court of the county óf New York, entered in said Surrogate’s Court on the 5th day of June, 1905.</p>

Appeal by Carrie I. Shotwell 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' June, 1903, resettling a prior order which confirmed the report of a referee and directed the chamberlain of the city of. New York to pay out certain moneys.

Appeal by the defendants, Walter J. Tice 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 7th day of June, 1906, upon the verdict of a jury, and also from two orders entered in said clerk’s office on the 11th day of June, 1906, one denying the defendants’ motion for a new trial made upon the minutes, and the other granting the plaintiff’s motion for an extra allowance.

Appeal by the defendant, The Hastings Pavement 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 20th day of Hovetnber, 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.

Appeal by the plaintiff, Frank W; McHeal, from a judgment of the Supreme Court in favor of the defendant, the Hayes Machine Company, Incorporated, entered in the office of the clerk of the county of New York on the 20th day of July, 1906, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits as to said defendant.

Appeal by the defendant, The New York Central and Hudson Eiver 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 October, 1906, upon the decision of the court rendered after a trial at the New York Trial Term, a jury having been waived.

Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New-York on the 12th day of October, 1906, upon the decision of the court rendered after a trial at the New York Trial Term, a jury having been waived.

Appeal by the defendants, Adelaide, Jones and others* from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New - York on the 29th day of March,...1906* upon the report of a referee, with notice of an intention to bring up for review upon such appeal an order, or inter-. lociitory judgment of the General 'Term of the Supreme Court, entered'in the office of the clerk of the county of New-York on the 25 th day “of…

Appeal by the defendant, the Interurban Street Railway Company, from a judgment of the Supremo Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of April, 1906, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 23d day of April, 1906, denying the defendant’s znotion for a new trial made upon the minutes.

Appeal by the plaintiff, Charles F. Goepel, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of January, 1907, removing an action from the City Court of the city of New York and consolidating it with the above-entitled action in the Supreme Court and vacating an attachment in the City Court action upon the ground that said attachment became merged with the attachment issued…

^Appeal by the plaintiff, John Istok, 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, vacating a prior order for the examination of the defendant Senderling before trial.

<p>Contract —stipulation settling controversies as to executors’ accounts— • , when surrogate should- not set aside stipulation.</p> <p>When in settlement of several controversies respecting the accounts of an administrator the parties- have entered into a stipulation which embodies a plan of settlement and division of the estate to be carried out with all convenient speed, within six months if possible, and it appears that the executor or his wife have advanced large sums of money to protect the property, relying upon the stipulation, and that many persons interested in the estate, and having acquired rights under the stipulation do not contest the same, and there is -no proof that the executors have been guilty of any fraud 'or improper act expept delay, the surrogate is without power to set asidé the stipulation. ' While the surrogate may relieve parties fiom a-stipulation relating Merely tó a proceeding before him, a stipulation of the character described, and much more extensive in its operation, should not be set aside even in so far as it allows the executor’s accounts to be passed, if the executor, who has advanced large sums of money, relying thereon, cannot be replaced in his original position, especially when there was no fraud in procuring the execution of the agreement.</p>

<p>Principal and agent—broker’s action for commissions—when broker not procuring cause of sale — broker cannot act for both parties.</p> <p>In a broker’s action for commissions it appeared that he was. first engaged by the purchaser to appraise the property, and- was. thereafter authorized, by the-intending purchaser to.make an offer to the seller, who was acting as executor, which offer was; declined on the ground that the property must . he. sold at auction. The plaintiff did not disclose his principals, and testified that the defendant offered him commissions if he would have his principals attend the sale and they were successful bidders. ■ The plaintiff-reported to his principals that their offer, was refused, audit was decided tliat the. plaintiff should not attend.the "auction-, b.ut that the bidding should be made by another party, who- appeared, at the sale and obtained the property at a lower figure than the offer. It further appeared that the plaintiff had been compensated by the persons for whom he had appraised' the property, and that the purchaser had determined to buy the property if it could be had at a reasonable figure before employing the plaintiff to appraise it.</p> <p>Held, that, the plaintiff was not. the procuring, cause of the presence, of the buyer at the sale, and performed no service which entitled him to commissions;</p> <p>That his claim against the seller for commissions was entirely inconsistent with Ms relations with the purchaser, as he could not act for both.</p>

<p>Appeal' by the defendant, George B. McClellan, from so ranch 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 8th day of February, 1907, as denies the defendant’s motion to set aside the summons and complaint herein and the service thereof as unlawful and unauthorized.</p>

<p>Sale — correspondence not establishing contract.</p> <p>In an action to recover damages for the breach of an alleged contract to sell and deliver coal, it appeared tfiat after a conversation with the defendant’s brother as to the terms of the alleged contract plaintiff "was directed to confirm it in writing; that thereupon he wrote to the defendant: ‘‘In accordance with my conversation with you ";I" * * you may enter my order for about 1,000 tons of broken coal per month for shipment previous to February 1. """ * * For the next three or four months I may not.be able to take my full monthly quota, but shall live up to my obligations as nearly as possible.” The defendant did not reply to this letter, and thereafter the plaintiff wrote asking when “can I expect some furnace coal on my order.” The plaintiff testified that the letter contained the entire agreement as he understood it. On all the evidence,</p> <p>Held, that as it was not stated in the letter that a contract had been made the day before, and as the proposals of the letter were never accepted, there was no contract binding upon either'party;</p> <p>That, although the defendant had subsequently delivered two. small orders of coal, the evidence did not justify a finding that the deliveries were made under the alleged contract.</p>

Appeal by William Woodward Baldwin, as. executor, etc.,, of Christopher C. Baldwin, deceased, from an order of the Supreme Court, -made at the New York Special Term and entered in the. office of the clerk'of the county of New York on the 10th day of December, 1906, granting the plaintiff’s motion for leave to revive and continue the above-entitled action against the said executor.

. Appeal by the plaintiff, Harry Brown, 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, appointing a referee to determine the damages sustained by the defendant, the Utopia Land Company, by reason of an injunction, and directing that notice he given to the sureties named in the undertaking given on obtaining said injunction, and also from so much of an…

<p>Submission of a controversy upon an agreed, statement of' facts pursuant to section 1219 of the Code of Civil Procedure.</p>

Appeal by the defendant, the Forty-second Street, Manhattan-ville and St. Nicholas Avenue Railway Company, from a judgment of the Supreme Court iq favor of the plaintiff, entered in the office of the clerk of the county of New .York on the 31st day of May, 1906, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 27th day of May, 1906, denying the defendant’s motion for a new trial made upon the minutes.

<p>Sale — pleading — threat to pursue legal remedy not duress.</p> <p>' In an action for the breach by the vendee of a contract for the sale of hops, the answer as a counterclaim alleged that the defendant was in great business distress by reason of the maturity of notes held by the plaintiff, which it was unable to meet and that the plaintiff threatened suit thereon unless the defendant would cancel portions of the contract of sale and resell the goods to the vendor at an inadequate price; that the defendant was compelled by said duress to accede to the demands of the plaintiff, and gave it a note for §800 without consideration, which note though paid at maturity was extorted by duress.</p> <p>jBeld, that, conceding that the counterclaim waived the tort and stated a demand for money had and received, it was subject to demurrer for the plaintiff was only following a legal right. A threat to pursue a legal remedy to which a party is entitled is not duress; 1</p> <p>That, in any event, the defendant by paying the note had waived the duress.</p>

<p>Appeal by the defendants, James B, Brady 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 9th day of January, .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 defendant, the Interurban Street 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 New York on the 20th day of April, 1906, upon the verdict of a jury for $1,000, 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, Perry Allen, 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 23d day of August, 1906, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits. .

<p>Debtor and creditor—judgment creditor’s action to reach, trust fund — when complaint states cause of action.</p> <p>In a judgment creditor’s action against trustees holding property for the debtor it was alleged that under the will the trustees were empowered in their discretion to pay the debtor such sum as was necessary for his support; that the sum allowed by the trustees was excessive, and that the balance of the debtor’s income was applicable to the judgment; that there had already accrued from such surplus income a large amount of money remaining in the trustees’ hands not paid to the debtor, and that the trustees have received and now retain moneys in trust for the use of the debtor applicable to the payment of his debts.</p> <p>Held, that the complaint stated a good cause of action;</p> <p>That as the answer did not allege that the whole of the amount set apart for the support of the debtor had been paid, and that no part of it remained in the possession of the trustees, it was subject to demurrer. ,</p> <p>Ingraham, J., dissented, with opinion. '</p>

<p>Libel—letter charging plaintiff with sending obscene letters—when complaint fails to state cause of action.</p> <p>The complaint in an action for libel must state more than conclusions of fact; facts themselves must be alleged from which the conclusions may be drawn.</p> <p>Hence, in an action for libel in writing a letter which charged the plaintiff with writing letters which, by innuendo, are said to be obscene, the complaint is subject to demurrer, as the characterization of the letters is a mere conclusion. The contents of the letters alleged to be obscene should be set forth.</p>

<p>Eminent domain — compensation for taking building erected after proceeding? is commenced — measure of compensation therefor.</p> <p>As .the title to real estate remains in the owner until it is actually taken by eminent domain, the owner may recover compensation for the taking of buildings erected thereon by him after the beginning of the condemnation proceedings, even though they were built for the purpose of recovering compensation from the city.</p> <p>The question of good or bad faith in moving a building to the land for the purpose of securing compensation is immaterial, but in making the award the commissioners may consider the cost of again, moving the building back on portions of the property not taken. • ,</p>

<p>Contract to pay moneys from earnings of mines construed — failure of obligee of bond collateral to contract to show damage — defect of parties.</p> <p>The defendants purchased mining property for $175,000, under a contract whereby they were required to pay §175,000 in addition whenever the defendants or their assigns should receive the same as net earnings or dividends from working the mining claims, or from any sale thereof, or from any corporation which should succeed to the ownership of the mines. The defendants also agreed to develop the mines and employ at least ten men until the §175,000 had been paid from the net earnings. To secure the performan.cé of the contract a bond was -given providing that if work on the mines should be stopped the balance due the obligee should bear interest payable out of the net earnings, in which case the bond should not be forfeited, but that in case of forfeiture the obligee or his assigns should be deemed to be damaged in a sum equal to the balance unpaid, which cram should be treated as stipulated damage. It was also provided that in case of forfeiture the obligors could reconvey the interest in the mines to the obligee, which reconveyance should be in full satisfaction of the penalty incurred for forfeiture. , ></p> <p>Held, that there was no absolute agreement on the par.t of the obligors to pay the balance of $175,000 except as the same might be earned by working the mines;</p> <p>That the obligors were required to work the mines- to insure the realization of. . • earnings and dividends to apply tó the payment of the $175,000; .</p> <p>That an action upon , the bond', if maintainable,, must be based upon the failure. '■ of the obligors continuously to work the mines, and for the breach- of that covenant the 8175,000'must be considered as a penalty, the plaintiff being entitled to .recover only so much damage as could be shown to have- resulted from, the breach; -</p> <p>That unless the obligee could show that the obligors could have' earned profit by ■ working the'mines they had failed to establish damage;</p> <p>That although the -obligors had assigned the mining claims to a corporation they were not thereby relieved' from liability, as. they became sureties for performance by the corporation of the matters agreed upon; . ' '</p> <p>That as it was shown that the mines-were unprofitable, and that the'corporation had gone into the hands of a receiver, the plaintiff had failed to show damage. (Per Ingraham and McLaughlin, JJ.): As the contract and bond contemplated . the transfer of the mining property to a corporation, the conveyance by the obligors to such corporation was not such an act -as made them liable for the 'full amount agreed to be paid from the profits or dividends,, and the. fact that . the corporation became insolvent, and that the mines were sold by its receiver, imposed no liability upon the obligors;</p> <p>That as the plaintiffs sued as assignees of the original obligee it was error to award a judgment in favor-of one of the assignees who, refusing to join in the suit, was made defendant, but demanded no affirmative relief from his codefendant, and when the respective interests. of- the assignees were not shown. ,</p>

Appeal by the plaintiff, Isaac Schreiber, from a judgment of the Supreme Court entered in the office of the clerk of the county of New York on the 13th day of September, 1906, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendant, the New York City Railway Company, from an order .'of the Appellate Term of the- Supreme Court, entered in the office, of the clerk of the county of New York on the 11th day of December, 1906, affirming a judgment of the Municipal Court of the city of New York in favor of the plaintiff entered on the 9th day of October, 1906.

Appeal by the plaintiff, Louis- Lese, from a judgment .of.the, Supreme Court in favor of the defendant, entered, in the office 'of the clerk of-the county of ÍSTew York on. the 11th day of July, 1906; upon the decision -of the court, rendered after a trial at. the Dew-York Special Term, dismissing the complaint upon the-merits and directing that the notice of pendency of action herein be canceled of record.

Appeal by the plaintiff, Samuel F. B. Morse, 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 20th day of ¡November, 1906, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the defendant’s demurrer to the complaint.

Appeal by the defendant, George W. Curtiss, from a judgment of the Court of General Sessions of the Peace ■ in and for the county of New York, rendered on the 22d day of June, 1906, convicting the defendant of the crime of forgery in the third degree, and also from orders denying respectively the defendant’s motions for a new trial and in arrest of judgment.

Appeal by the plaintiff, Percy FT. Furber, from so much of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Flew York on the 2d day of May, 1906, upon the verdict of a jury, rendered by direction of the court, as fails to award to the plaintiff the possession of certain shares of stock.

Appeal by the petitioner, The City of New York, from an order of the Supreme Court, made at the New York Special- Term and entered in the office of the clerk of the county of New.York on the 20tli day of November, 1906, confirming the report of the commissioners of estimate and appraisal in condemnation proceedings.

Separate appeals by- the plaintiffs, Charles F. Muller and another, as executors, etc., and by the defendant Arthur E. Yalois, as executor, etc., from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 12th day of October, 1906, granting to the defendant Thomas W. Evans Museum and Institute Society a discovery and inspection of certain books, records, etc., of the estate of Thomas W. Evans,…

Appeal by -the defendant, tbe Gansevoort Bank, from a judgment of the Supreme Court in favor of tbe plaintiff, entered in the office of the clerk of the corinty of New York on the 20th- day of June, 1906, upon-the decision of the court, rendered after a trial at the .New York Special Term, setting aside as preferential and fraudulent a certain payment made by W. 0. Loftus & Company to .the appellant'. ' , ,

Appeal by the plaintiff, Robert G. Perry, as trustee, etc., 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 20th day of July, 1906, upon the decision of the court, rendered alter a trial at the New York Special Term, dismissing the complaint upon the merits.

<p>Appeal by the defendants, William Belden 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 1st day of February,. 1907, denying the defendants’ motion to declare this action abated unless it be properly revived.</p>

<p>Practice — compulsory reference in action for accounting not authorized until right to accounting determined.</p> <p>In an equitable action for the specific performance of an alleged agreement and for an accounting, when the execution of the agreement is in issue there can be no compulsory reference on the ground that the examination of a long account is involved until the right to the accounting is determined by trial at Special Term.</p>

<p>Sale — delivery of goods to railroad to order of vendee.</p> <p>In an action' by a seller for damages by reason of the failure of the buyer to accept and pay for goods, it appeared that the contract called for the sale and delivery of twenty-four bales of hops; that after the.delivery of sixteen bales by the seller the buyer did not reply to the seller’s demand that the delivery'of the balance be accepted. The seller stored the balance of, the hops, branded and tagged with the name of the buyer, with a warehouseman and with a railroad company, sending the invoices to the buyer, who retained the same without objection but failed to remove the hops. The seller sent the huyera second copy of the invoices. The buyer replied claiming the right to take the hops at his convenience, and the seller being notified by the railroad to remove the hops-' stored them in a warehouse for the buyer’s account and sent him the warehouse receipts, which were also retained.</p> <p>By the custom of trade, where no time is specified for-delivery of hops, it must - be made before new crops come in.</p> <p>Held, that the complaint was improperly dismissed;</p> <p>That in an action for goods sold and delivered the seller may, upon tender of performance and demand of payment and refusal, treat the property as belonging to the buyer and sue for the recovery of the agreed price;</p> <p>That an actual physical delivery of the goods is not necessary, and where manual delivery of the goods is inconvenient on account of bulk, placing them in the power of the buyer with a symbolic delivery by forwarding the warehouse receipts, is sufficient.</p> <p>Hoxjghton, J., dissented.</p>

Appeal by the defendant, Robert H. Reid & 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 30th day of October, 1906, upon the'verdict of a jury, and also from an order entered in said clerk’s office' on the 26tli day of October, 1906, denying the defendant’s motion .for a new trial made upon the ■minutes. . ■ • This action was brought to recover damages for an alleged-breach of…

<p>Appeal by. the defendant, Helen M. Bedford, from a judgment of the Supreme Court in favor of the plaintiffs and certain of the defendants, entered in the office of the clerk of the county of Mew York on the 22d day of March, 1906, upon the report of a referee.</p>

<p>Vendor and purehser — lands described by metes and bounds — refusal ■ to take title — evidence — when understanding as to meaning of “more - or less ” inadmissible. _ . .</p> <p>When a contract for the sale of real estate describes the premises by metes and bounds, evidence of what the parties understood the W'ords “more or less” to mean is inadmissible in an action on the contract.</p> <p>In an action by a vendee to recover earnest money paid on a contract to convey lands described by motes and bounds which were qualified as being “ more or 'less,” the payment of the' consideration was not dependent upon the foot frontage or specific area. The evidence showed a good record title to 170 feet ■ frontage with a possession by the vendor of 1.25 feet more which had never been contested and which would probably ripen into title. On all the evidence, Sdd, that the vendee was not justified in refusing title, and was not entitled to recover the earnest money.</p>

Appeal by the petitioner, Emmeline Cartier, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county-of New York on the 14th day. of January, 1901, denying the- petitioner’s- motion to set aside a judgment entered in said clerk’s office on the 19th day of December, 1905.

Appeal by the defendant, John Slattery, from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the connty of Mow York on the 17th day of December, 1906, denying the defendant’s motion for a bill of particulars.

Appeal by the defendant, the Manhattan 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 Mew York on the 17th. day of April, 1906, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 17th day of April, 1906, denying the defendant’s motion for a new trial made upon the minutes. ' .

<p>Appeal by the defendant, The American Exchange Rational Bank, 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 August, 1906, upon the report of a referee."</p>

Appeal by the defendant, Leander J. Buckley, 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 September, 1906, upon the report of a referee, with notice of an intention to bring up for review upon such appeal an interlocutory judgment entered in said clerk’s office on the 19th day of December, 1904, directing the defendant to tile his accounts.

<p>Appeal by the defendant, Elmer E. Smathers, from an order of the Supreme Court,, made at the New1 York Special Term and entered in the office of the clerk of the county of New York on the 21th day of December, 1906, denying the defendant’s motion to resettle an order entered in said clerk’s office on the 28th day of November, 1906,, which denied the defendant’s motion for an inspection of a certain affidavit.</p>

Appeal by the plaintiff, Harry Brown, from a judgment of the Supreme Court in favor of the defendant, Utopia Land Company, entered in the office of the clerk of the county of Bew York on the 24th day of Bovember, 1906, upon the decision of the court, rendered after a trial at the Bew York Special Term, as resettled, sustaining the said defendant’s demurrer to the complaint and dismissing the complaint upon the merits.

Appeal by'the defendant, Helen Martha Bedford, individually and as executrix, etc., from a judgment of the Supreme Court in ' favor of the plaintiffs and certain of the defendants, entered in the office of the clerk of the county of New York on the 22d day of March, 1906, upon the report of a referee. ' •

Appeal by Mary J. McKenna, as-next of kin of John A. Disney, deceased, from a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 29th day of June, 1906, in so far as such decree construes the will of John A. Disney, deceased.

Appeal by the plaintiff, Frank A. Selali, 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 January, 1907, denying the plaintiff’s motion for an order resettling the case upon appeal herein.

Appeal by the petitioners,, Samuel H. Ordway 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 30th day of November, 1906, denying the petitioners’ motion for a writ of mandamus under section 114 of the Election Law.

Appeal by the defendants, William S. Lawson and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of fhe county of New York on the 23d day of IVIarcli, 1906, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 12th day of April, 1906, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendants, John Motrie 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 Ulster on the 15th day of August, 1906, upon the decision of the court rendered after a trial at the Ulster Trial Term, the jury having been discharged.

Appeal by the defendant, the James Smith Woolen Machinery Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 14th day of February, 1906, Upon the verdict of a jury, and also from an order entered in said • clerk’s office on the 15th day of February, 1906, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiffs, William W. Nichols and another, from an interlocutory judgment of the Supreme Court in favor of -the defendant John B. Biley, entered in the office of the clerk of the county of Clinton- on the 3d clay of August, 1906, upon - the decision of the court, rendered after a trial at the Clinton Special Term, overruling the plaintiffs’ demurrer to the counterclaims set forth in the amended answer of the said defendant Riley.

Appeal by the defendant, John C. Haddock, from a judgment- of the Supreme Court in favor óf the plaintiff, entered in the office of the -clerk of tlie county of Broome on the lYth day o.f September, 1906, upon- the decision of- the court rendered after a tidal at the Broome'Trial Term, tlie jury having. been discharged'. Haddock, Blanchard & Company was1 a corporation doing a wholesale coal business at Binghamton.

<p>insurance'—provisions as to payment of premiums on life insurance construed-r-premium notes accepted by the. insurer, but not paid, not ■ effective as payment of premiums.</p> <p>In an action upon policies of life insurance it appeared that after 'two or more annual premiums had been fully paid the policy became a paid-up, non-forfeit-, urn policy; that if the amount of any annual premium or interest due on any note- taken in part payment of a former annual premium were not fully paid. , the policy-should be rtiill and void and forfeited except ns respects, annual payments for prior years which have been fully made, and that if any-note, cheek or draft shall be given inpayment or part payment of any premium and-.siich note, check or draft shall not be paid according, to the provisions thereof, the. policy became immediately void except, as respects payments for prior years. I ■ further appeared that of the first annual premium only sixty per cent had been paid, but for the remaining forty per cent of the premium a one-year note was given. Only sixty per cent of the second premium was paid and the principal of the former premium note was included in a new premium note also payable twelve months from date. Similar settlements were made each year for six years, the principal of each premium note being included in the principal of the new premium note taken for part payment’of the premiums when due. The first premium note provided that if not paid at maturity all benefits which would have accrued for full payment became void and forfeited to the company. The subsequent premium notes did not contain said provision, but in accepting each note the surplus apportioned to the policy was deducted from the notes before the renewal note was given.</p> <p>Held; that the beneficiary stood in no contract relations with the company except as she was entitled to reap the profits of.performance by the insured;</p> <p>That the premium notes were not payments, but merely means of securing payment, and effective only to extend the time therefor, and never having been paid the original indebtedness was revived and the beneficiary was not entitled to recover on the policies;</p> <p>That although the later notes contained no provision as to forfeiture of benefits in case of non-payment, it was immaterial, as the failure to pay the later notes revived the former note containing such clause and deprived the beneficiary of rights under the non-forfeiture clause.</p> <p>Held, further, that the insurer by accepting the notes of the insured from year to year did not thereby rely upon his personal responsibility and agree to pay the beneficiary in full, but was entitled to offset against the sum due under the policy any sum due from the insured.</p> <p>Smith, P. J., dissented, with opinion.</p>

<p>Bankruptcy—pleading — when complaint sufficiently alleges capacity of trustee to sue — when causes of action not improperly united — jurisdiction of State courts. "</p> <p>When in an action hy a trustee in bankruptcy to recover property alleged to have been wrongfully transferred hy the bankrupt, the complaint, after setting out bankruptcy, proceedings filed in the District Court' of the Northern District of this State and that the insolvent was hy that court duly adjudged a bankrupt, states that the plaintiff was “duly appointed the trustee * * * hy an order duly made on the 16th of March, 1905,” the capacity of the plaintiff to sue is sufficiently set forth, for the court may take judicial notice that there is but one clerk’s office in the Northern' District, for New' York in the Federal court. Nor is it material that'it is hot alleged that the order appointing the plaintiff was made hy the creditors with the approval of the court or referee or by the court, for the inference is plain that it was made in the bankruptcy proceedings pending in the district and court stated.</p> <p>Moreover, the pleading may he sustained under section 532 of the Code of Civil Procedure which provides that in pleading a judgment or determination of a court or officer of special jurisdiction, it is not necessary to state the facts conferring jurisdiction, but the judgment or determination may be stated to have been, duly given or made.</p> <p>The complaint set forth three causes of action against the transferees of the bankrupt. The allegations considered, and</p> <p>Held, that the causes of action were not improperly united, having arisen out of the same transaction and all stating facts sufficient to sot aside a transfer contrary to the provisions of the Bankruptcy Act.</p> <p>The Supreme Court has jurisdiction of an actipn brought to set aside an'unlawful transfer of property by a bankrupt and to recover the same or , the value thereof for the benefit of his creditors.</p> <p>Cochrane, J'., dissented.</p>

Appeal by the plaintiff, John G. Kelly, as administrator, etc., from a judgment of the Supreme Court in favor of the .defendant,' entered in the office of the clerk of the county of Chemung on the 12th day of September, 1906, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case, upon a trial at the Chemung Trial Term, and also from an order entered in said clerk’s office on the 12th day of September, 1906, denying- the…

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-Rensselaer on the 15th day of October, 1906, upon the decision of the court, rendered after a trial at the Rensselaer Trial Term, a jury having been waived, dismissing the complaint upon the merits.

Appeal by the plaintiff, Charles E. Baldwin, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Schenectady on the 30th day of, December, 1905, upon a nonsuit granted by the court, on a trial at the Schenectady Trial Term.

■Appeal, by the defendant, the Central Vermont Railway Company, .from a judgment of the -Supreme Court in favor off,th.e-plaiñ* • tiff;-; entered in the office: offthe.-clerk of the.: county - of3 Clinton;- on* thelst day;of-May, 1906,mpon- the verdict- off a- jury- for- |¡7;;50Q|., 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 plaintiffs, Lizzie Turnbull and another, as administrators, áte., from a judgment of the County Court of Montgomery county, entered in the office of the clerk of said county on the 14th day of February, 1906, upon the decision of the court, rendered after a trial before the court without a jury, dismissing the plaintiffs’ complaint.

Appeal' by the defendant, Allen 0. Meeker, from a judgment of the County Court of St. Lawrence county, entered in the office of the clerk of said county on the 2d day of May, 1906, upon an order: of said County Court entered on the 2d day of May, 1906, affirming a judgment of the Justice’s Court of the town of Waddington in favor of the plaintiff, and also from the said order upon which the judgment appealed from was entered.

Appeal by the plaintiff, Edwin Garrison, from an order of the County Court of Hlster county, entered in the office of the clérk of said county on the 7th day of March, 1906, reversing a judgment of the City Court of the city of Kingston in favor of the plaintiff and granting a new trial.

Appeal by the relator, Fred Dauchy, from an order made by the recorder of the city of Albany and entered in the officé of the clerk of the county of Albany on the 8tlx day of January, 1907, dismissing a writ of habeas corpus and remanding the relator to the custody of the respondent.

Appeal by the plaintiff, Thomas 0. Rowe,' from a judgment of the' Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Albany on the 22d day of September, 1906, upon the decision of the court, rendered after a trial at the Albany Trial Term without a jury, dismissing the plaintiff’s complaint, and also from an order entered in said clerk’s office on the 13th day of November, 1906, denying the plaintiff’s motion for a retaxation of…

<p>Negligence —Employers’ Liability Act — injury on elevator.</p> <p>The superintendent of a mill, although the alter ego of the owner, is entitled to the benefits of the Employers' Liability Act, which makes no distinction between different classes of employees.</p> <p>Although the master has posted a notice forbidding employees from riding on a freight elevator, it is for the jury-to say whether the defendant acquiesces in such use when there is evidence that the employees were accustomed to use it to the knowledge of the master, and a dismissal of the complaint of a superintendent who was injured on such elevator, is error.</p> <p>As section 3 of the Employers’ Liability Act provides that the question whether an employee assumes the risk of injury or is guilty of contributory negligence by the continuance in his employment with knowledge of the risk is a question of fact, it is error to dismiss the complaint of one injured on the freight elevator upon the ground that being near a landing when the elevator stopped, he could have stepped to the floor and attempted to operate it from a place of safety.</p> <p>Smith, P. J. and Sewell, J., dissented.</p>

<p>Practice — pleading — amending prayer for relief — when service of formal amended complaint not necessary.</p> <p>Although the prayer for relief is not a part of the cause of action it is part of the complaint, and a motion to amend the prayer is a motion to amend the complaint.</p> <p>But upon such amendment not affecting the facts alleged, where it is merely sought to ask equitable relief instead of money damages, a plaintiff is not required to serve a copy of the proposed amended complaint with the motion papers; especially "so, when the proposed prayer for relief is set out in the moving papers.</p>

Appeal by the defendant Corliss Sheldon, as administrator, etc., from a judgment of the Supreme Court, entered in the office of the clerk of the county of Saratoga on the 30th day of March, 1906, upon the decision of the court rendered after a trial at the Saratoga Special Term. Also separate appeals by the defendants Harry P. Pendrick, as administrator, etc., and others, and by the plaintiff, Robert M. S. Putnam, from certain portions of said judgment.

<p>Appeal by George M. Burr, as sole surviving executor, etc., and another, from a decree of the Surrogate’s Court of- the county of Broome, entered in said Surrogate’s Court on the 20th day of July, 1905, revoking letters testamentary.</p>

Appeal by Isabel D. Burr from a decree of the Surrogate’s Court of the county of Broome, entered in said Surrogate’s Court on the 18th day of October, 1906, appointing Theodore R. Tuthill administrator with the will annexed of the estate of Henry A. Sheldon, deceased.

<p>Corporation-v-contract -to pay for railroad construction in bonds and stocks — such contract not stock subscription — pleading — when complaint of receiver insufficient — when receiver estopped by action of corporation.</p> <p>A contract by a railroad to pay a contractor.in bonds and full-paid non-assessable stock of the corporation for his work, labor and. materials in- constructing and equipping the road is not a stock subscription by the contractor, which makes him liable for the par value of the. stock. Such contract is not a purchase of the stock and bonds to he paid.for in work and property, but is a contract to accept full-paid stock and bonds as payment for the building of the road.</p> <p>The receiver appointed on the insolvency of such railroad is not entitled to recover from contractor the alleged value of the stocks and bonds received as compensation for the construction of the road, when it is not alleged that the cost of constructing the road and the value of the properties acquired from the contractor were of less value than the par value of the stock and bonds, delivered in payment.</p> <p>In any event, although the payment of the contractor in bonds and stocks were fraudulent, the receiver not being vested with rights personal to the creditors and merely standing in the place of the corporation, can maintain no action against the contractor to recover the alleged value of the stock and bonds, being, like the corporation, bound by an equitable estoppel.</p>

Appeal by the defendant, Chauncev D. Allen, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office, of the clerk of the county of Clinton on the 20th day of April, 1906, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of April, 1906, denying the defendant’s motion for a new trial made upon the minutes.

<p>Injunction to restrain use of trade name — right to name not lost by unauthorized use by others.</p> <p>When a manufacturer has established a market for cream cheese under the brand “Philadelphia cream cheese,” the fact that others have attempted to appropriate the trade name without the owner’s consent does not establish any abandonment thereof by him.</p> <p>Nor does the fact that such manufacturer sells other brands of cheese together with the Philadelphia cheese, all being put out under a registered trade mark, destroy the right to the specific trade name “ Philadelphia” as applied to one brand of cheese.</p>

Appeal by the contestants, Joab Small and others, from an order of the Supreme Court, made at Montgomery Trial Term and ' entered in the office of the cleric of the county of Montgomery on the 18th day of July, 1905, denying the contestants’ motion for a new trial made upon the minutes.

Appeal by the plaintiffs, John H. Pitkin and another, from an order of the County Court of Saratoga county, entered in the office of the clerk of said county on the 26th day of December, 1906, denying the plaintiffs’ motion to require the justice before whom this cause was originally tried to make a further and amended return.

Appeal by the defendant, Cornell Yan Gaasbeclc, from a judgment of the County Court of Ulster county, rendered on the 15th day of January, 1906, convicting the defendant of the crime of manslaughter in the first degree.

Appeal by William. S. Lawrence froip. a decree of the Surrogate’s Court of the county of Franklin, entered in said Surrogate’s Court on the 24th day of September, 1906, settling the accounts of the -administrator of the estate of Joseph H. Griffin, deceased.

Appeal by tli.e plaintiffs, Bosalie Mendleson and others, from a judgment of the County Court of Albany county, entered in the office of the clerk of said county on the 13th day of November, 1906, upon an order of said County Court, entered in said clerk’s office on the 13tli day of November, 1906, reversing a judgment of the City Court of the city of Albany in favor of the plaintiffs and dismissing the complaint.

Application by the directors of the Rochester, Corning, Elmira Traction Company 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, chap. 545) for an order directing the Board of Railroad Commissioners of the State of N ew York to issue a certifi-. cate of public convenience and a necessity, said Board having refused to grant such certificate upon application made to it.

Appeal by the plaintiff, Frank A. Baymond, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Cattaraugus on the 6th day of August, 1906, upon the decision of the court, rendered after a trial at the Cattaraugus Special Term, dismissing the complaint upon the merits.

<p>Appeal by Patsey White from si> much of a decree of the Surrogate’s Court of the county of Niagara, entered in said Snrrogate’s Court on the 9th day of October, 1906, as directs the payment of certain sums to the guardians of the infant children of the testator.</p>

Appeal by the defendant, the New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 21st day of .August, 1905, upon the verdict of' a jury for $7,233.33, and also from an 'order entered in said clerk’s office on the 21st day of August, 190&, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Crosstown Street Railway Company of Buffalo, from an order of the County Court of Erie county, entered in the office of the clerk of said county on the 17th day of April, 1906, denying the defendant’s motion fór a new trial made upon the minutes, a-verdict having been rendered by the jury in favor of-the plaintiff for'$200.

Appeal by the defendant, the .Barcalo 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 Erie on the 5th day of March, 1906, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the 5th day of March, 1906, denying the defendant’s motion for a new trial made upon the minutes.

Motion by the plaintiff, Oswald D. France, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon a nonsuit directed by the court after a trial at the Erie Trial Term in October, T903.- ■ '

<p>Negligence — injury by sudden starting of train while passenger alighting.</p> <p>The plaintiff, a woman unused to travel, was riding on the defendant’s train. As the train approached the station where she intended to alight the trainman opened the door and called out the station and said, “ All change,” and thereupon went into the car ahead. The train actually stopped about 150 feet from the station platform, and the plaintiff believing that she had arrived at the station, and while in'the act of alighting, was thrown and injured by the sudden starting of the train.</p> <p>Held, that the questions of the defendant’s negligence and the absence of contributory negligence of the plaintiff were properly submitted to the jury;</p> <p>That the act of the trainman in calling out the station when he knew that the train had'not arrived at the platform, and that it was not time for passengers to alight, was negligent;</p> <p>That although the plaintiff was inexperienced in traveling and unacquainted with railroads, sire was not, as a matter of law, guilty of contributory negligence in traveling alone.</p> <p>McLennan, P. J., dissented.</p>

Appeal by the defendant, the First National Bank of ITtica j N. Y., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 15th' day of June, 1906, upon the verdict of a jury for $5,000, 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 judgment debtor, James.'F. Preston, the defendant in the above-entitled action, from an order of the County Court oh Erie county, entered in the office of the clerk of said county on the 12t'h day of December, 19.06, denying a motion to set aside an order for the -examination of the defendant in supplementary- proceedings, and to vacate the judgment upon which such proceedings were based. . ■

Appeal 'by the defendants, Donato Be Yito and another, from a judgment of the County Court of Oneida county in favor of the plaintiff, entered in the office of the cleric of .said, county on the 6th day of June, 1906, upon the verdict of a jury rendered by direction of the court, and also from an order bearing date the 5th day of June, 1906, and entered in said clerk’s office, directing the verdict in favor of the plaintiff.

<p>Bank—relation between bank and depositor — erroneous charge as to liability of bank paying out money to person not depositor — estoppel.'</p> <p>The duty of a bank, other than a savings bank, toward depositors is not measured by reasonable care in paying out the amount of the deposit. The relation of banker and depositor is that of debtor and creditor, the deposit becoming the money of the'bank and the bank a debtor of the depositor. The bank is in no Sense a trustee and the rule as to reasonable care in ascertaining the identity of the .person who draws the deposit has no application. The bank is- hound absolutely, to pay or discharge the liability like any other obligation.</p> <p>Although a depositor by holding out another person as authorized to draw the deposit may be estopped, it is error to charge that the liability of the hank - ■ depends on the carefulness or good faith of the cashier in malting payment without also submitting- the acts of the depositor- claimed to constitute an estoppel. ■</p>

<p>Appeal by the defendant, The City of Buffalo, 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 15th day of November, 1906, upon the decision .of the court, rendered after a trial at the Erie Special Term, sustaining the plaintiff’s demurrer to the defendant’s answer.</p> <p>It appears from the plaintiff’s complaint that the German Bank of Buffalo was the owner of certain premises situate in that city from about September 24, 1902, until on or about the 1st day of August, 1903, when it sold the saíne, reserving to itself, however, all rights and claims for damages or injury to the premises by reason of any grade crossing or change of street grade, or work whereby the ■ property hadLeen in jured or damaged ; that, the premises had been theretofore damaged by grade-crossing improvements, and that the defendant,"the City of Buffalo-, in and during the year 1901, caused to be built a viaduct in Babcock street in the'vicinity of the premises, causing damage thereto in an amount exceeding $980:70; that, by an act of the Legislature of the State,* passed April 28, 190#, discretionary power and authority was conferred upon the common council of the city of Buffalo, subject to the approval of the mayor, to audit, adjust and allow, in whole or in part,, certain claims and demands, among others, the said claim- of the German Bank; that' thereafter arid on or about June 12,1905, the common council, with the approval of the mayor,, did audit and allow-said claim at the sum of $980.70., The German Bank was declared insolvent by a- judgment of the Supreme Court on the 22d day of December, 1904,</p> <p>. and a receiver was appointed of all its assets, .and property. There..aftér, and on the 8th day of June, 1906, the receiver assigned the said claim and certain other assets arid property to -the plaintiff,</p> <p>By the defendant’s answer it appears that at the time the German • Bank was adjudged insolvent and a receiver appointed'of its prop-erty and assets, there was due and owing from the German Bank to. the city of Buffalo, the defendant,, the. sum of $114,822,85 on , account of certain deposits theretofore-made by the city with said bank under certain terms and conditions which need not be-referred . to at length here. Ro part thereof- had been paid except the sum of $57,411.42,. leaving due and owing to the city .the sum of $57,411.43. These facts were embodied in the defendant’s answer •</p> <p>. as .a counterclaim, the-defendant demanding «. judgment that-so much thereof be-set off against the plain tiff’s-claim'as was necessary to-extinguish the plaintiff’s cause-of action. To this counterclaim' the plaintiff demurred and the.demurrer, was sustained at. Special Term.</p>

. Appeal by Elizabeth M. Dunbar from an order of the Supreme Oourt, made at the Monroe S|iecial Term, and entered in the office of the clerk of the county of Wayne oh the 8th day of December, 1906, revoking and canceling liqu'or' tax certificate Eo. 22,756 theretofore issued to her.

Reargiiment of an appeal by the plaintiff, James M. Hamilton, from a judgment of the Supreme Court in favor of the defendants William S. Morse and others, entered in the office of the clerk of the county of Monroe on the 10th day of April, 1906, upon the decision of the .court, rendered after a trial at the Monroe Special Term, dismissing the complaint as to said defendants.

<p>Appeal by the defendants,' Harriet A. Huntington and another, as executrices, 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 23d day of July, 1906, upon the decision of the court rendered after a trial at the Onondaga Special Term.</p>

Appeal by the defendant, William Dixon, from a judgment of the County Court of Onondaga county, rendered on the 4th day of May, 1906, convicting him of the crime of burglary in the third degree, and also from an order bearing date the 4th day of June, 1906, and entered in the office of the clerk of the county of Onondaga, denying the defendant’s motion for a new trial.

Appeal by the defendant, .The City of Buffalo, from a judgment of the Supreme Court iu favor of the plaintiff, entered in the office of the cleric of the county of Erie on the l6tli day of March, 1906, upon the report of a referee.

<p>Debtor and creditor — suit in equity by creditor against stockholders for unpaid subscriptions — defaulting subscribers not necessary parties — sufficient allegation of promise to pay for stock —when debt of corporation payable within two years — failure to bring suit excused by injunction — when legal action not prerequisite to suit in equity.</p> <p>In a creditor’s action against stockholders of an insolvent corporation to recover sums unpaid upon their stock subscriptions, subscribers who never paid the ten per cent essential to make them stockholders are not necessary parties.</p> <p>neither is it necessary to join subscribers whose subscriptions have been declared forfeited by resolution of the board of directors.</p> <p>A complaint excusing the j cinder of parties whose subscriptions are forfeited need not allege the details essential to the declaration of forfeiture by the directors pursuant to section 43 -of the Stock Corporation Law, such facts being merely evidential.</p> <p>When the creditor alleges that the entire capital stock was subscribed and that the several defendants named subscribed for and agreed to take shares of capital stock as specifically set forth and that certain specified sums on the subscription are due and unpaid by each defendant respectively, there is' a sufficient allegation of an agreement to pay, and the complaint is not open to the objection that part of the stock may have been paid for in property or labor.</p> <p>When a corporation assumes the contract of a vendee of lands and agz’ees to pay the consideration to the vendor, it assumes the debt and becomes the debtor of the vendor within the purview o£ section 54 of the Stock Corporation Law.</p> <p>Although by section 55 of the Stock Corporation Law a stockholder is not personally liable for debts of a corporation not payable within two years from the time contracted, nor unless an action for collection shall be brought within two years after the debt becomes due, yet when in 1903 a corporation assumed the obligations of a vendee under a contract to sell lands made in 1903, the consideration to be paid in 1904, the liability of the corporation for the debt matures within the statutory period, for the agreement assuming the debt is an independent agreement creating a new obligation. The purpose of the statute is to prevent the extension of credit to a corporation for a longer period than two years and should not be so construed as to include the time a debt was running preceding, the date when the corporation assumed it.</p> <p>A failure to bz'ing suit against stockholdez's within two years as required by said section 55 is excused when all actions were enjoined on the appointment of a receiver.</p> <p>When a complaint in a creditor’s action alleges the insolvency of the corporation, its dissolution, the conversion of its assets into money and the inadequacy of the same to pay the debts, it is -not necessary for the creditor to exhaust his legal remedy against the corporation.</p> <p>McLennan, P. J., dissented.</p>

Appeal by the defendants, John Smilie and others, from a judgment of the County Court of Erie county, rendered on the 6th day of July, 1906, convicting the defendants of the crime of grand larceny in the second degree.

<p>Insurance corporation—proceeding to set aside .election of directors — power óf court to review election — when by-laws fixing number of directors must be' adopted by policyholders — parties — policyholder may contest validity of election—when notice of election insufficient to constitute estoppel — former directors hold over when "election set aside.</p> <p>By virtue of section 209-of the Insurance Law every insurance'corporation, other than secret fraternal societies, must, before the adoption of by-laws, cause the same to he mailed to the members and directors with a notice of the time and place when the same shall he considered. The policyholders have the sole power to adopt by-laws governing the number of directors or fixing their" term of office.</p> <p>Even such by-laws as may be adopted by the board of directors under section 29 of the General Corporation Law are not valid unless published at least once a week for two successive weeks in a newspaper in the county where the election is to "be held and at least thirty days before such election" as required b.y subdivision 5 of section 11 of the General Corporation Law.</p> <p>It follows that the executive committee of a co operative assessment insurance corporation, reincorporáted under section 206 of the General Insurance Law, cannot adopt by-laws fixing the number and term of office of directors without due notice to the policyholders, and directors elected pursuant to by-laws so adopted are not entitled to office.</p> <p>Section 27 of the General Corporation Law, giving the Supreme Court power to review corporate elections, applies to corporations organized under the Insurance Law.</p> <p>Aggrieved policyholders seeking to set aside an election by a proceeding under said section are not required to give notice to all policyholders of the company. Notice to the corporation itself and the directors, the legality of whose election is challenged, is sufficient.</p> <p>Policyholders are entitled to contest the validity of such election in a proceeding under section.37 of the General Corporation Law, and action by the Attorney-General under section 1948 of the Code of Civil Procedure is not necessary. When the election attacked is wholly illegal and without authority the policyholders seeking to set it aside need not show that a different result will.be had in the event of a legal election.</p> <p>The publication of notice of the annual meeting of policyholders of such insurance corporation in its official journal, which makes no mention of the proposed election of directors, does not estop policyholders who fail to appear at , the meeting.</p> <p>When a co-operative insurance association, originally incorporated under chapter 175 of the Laws of 1883, reincorporates under section 206 of the General Insurance Law, its corporate entity is not changed; but it merely becomes entitled to the benefits and privileges of the latter act. Hence, by virtue of the provisions of section 23 of the General Corporation Law, when an election of directors is wholly void, the former board elected under the original act of incorporation holds office until successors are duly elected.</p> <p>The court, in declaring an election of directors wholly void, will not continue the directors so elected in office until their successors arc legally chosen.</p>

Appeal by Emanuel Blumenstiel, as administrator de bonis non .of Harris Ablowich, deceased, from a decree of the Surrogate's Court of the county of New York, entered in said Surrogate’s Court on the 4th day of October, 1905, confirming the report of a referee and settling the accounts of Julius Ablowich, as administrator, etc.

Appeal by the plaintiff, Tracy W. Pratt, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Mew York on the 22d day of March, 1906, upon the decision of the court, rendered after a trial at the Mew York Special Term, dismissing the complaint upon the merits.

Appeal by the defendant, Elisabeth Mills Reid, from a portion of a judgment of the Supreme Court in1 favor of the plaintiff, entered in the office of the clerk of the county of Mew York on the 16th day of Movember, 1905, upon the decision of the court rendered after a trial at the Mew York Special Term.

Appeal by the defendant, Lawrence P. Mingey, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, rendered on the 18th day of April, 1906, convicting him of the crime of forgery in the second degree.

<p>Appeal by the jfiaintiffs, Friedrich Yachod and- others, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Yew York on the 28th day of December, 1906, upon the decision of the court, rendered after a trial at the Yew York Special Term, overruling the plaintiffs’ demurrer to the separate defense contained in the amended answer.</p>

<p>Appeal by the defendant, the - American Bonding Company of Baltimore,- from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of New York on the 26tli day of December, 1906, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the said defendant’s demurrer to the complaint.</p>

<p>Appeal by the plaintiff, the National Contracting Company, from a judgment of the Supreme Court in favor of the defendant, entered.in the office of the cleric of. the county of New York upon the report-of a referee, dismissing the complaint and awarding the sum of $386,185.07 upon the counterclaim.</p>

<p>Will — bequest to charitable uses—when benevolent corporation entitled to take.</p> <p>The Havens Relief Fund Society, incorporated in 1870 for charitable purposes and endowed with special powers by chapter 301 of the Laws of 1871, obtained a valid corporate existence.</p> <p>In any event the validity of its corporate existence cannot be attacked collaterally in an action by a testamentary trustee holding a trust estate for the benefit of that institution asking a determination of the validity of the trust and for a settlement of his accounts. . The question of the legal existence of the corporation can only be raised by the sovereign power to which the corporation owes its life in some proceeding for that purpose brought by and on behalf of the sovereignty itself.</p> <p>Even if defects exist in proceedings for an incorporation, the defect may be cured by subsequent legislation.</p> <p>Chapter 301 of the Laws of 1871, providing that the Havens Relief Fund Society may take gifts by will from those named in the certificate of incorporation without being limited to the amounts then limited by law, exempts such-corporation from the limitations prescribed by section 6 of chapter 319 of the Laws of 1848 and chapter 360 of the Laws of 1860, and enables it to take bequests from its original incorporators without limit.</p>

Appeal by the defendant, the Postal Telegraph-Cable Company, 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 14th day of June, 1906, upon the decision of the court rendered after a trial at the New York Trial Term, the jury having been dismissed.

Appeal by the relator, Lawrence Fogarty, 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 February, 1906, denying the relator’s motion for a peremptory writ of mandamus after the trial of 'issues of fact framed by an alternative writ of mandamus and the return thereto.

Appeal by the defendant, The John C. Seager 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 11th day of September, 1906, referring the issues herein to a referee.

Appeal by the defendants, Albert L. Woárms 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 21st day of February, 1906, upon the report of a referee.

Appeal by the defendants, Thomas B. Hidden, individually and as trustee, 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 New York on the 27th day of January, 1906, upon the •report of a referee.

Appeal by ti'^ defendant, the Waldorf-Astoria Hotel 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, upon the decision of the court rendered after, a trial at the New York Trial Term without a jury.

Appeal by the defendant, Edward G. Gilmore, 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 19th day of Hovember, 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 plaintiff, Eugene C. Gilroy, as receiver, etc., from a judgment of the Supreme Court in favor of the defendant,, the Hickok Printing Company, entered in the office of the clerk of the county of New York on the 13th day of October, 1906, upon the verdict of a jury rendered after a trial at the New York Trial Term.

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

Appeal by the plaintiffs, John Williams and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the coiinty of New York on the 5th day of July, 1905, upon the verdict óf a jury rendered by direction of the court after a trial at the New York Trial Term.

<p>Appeal by the defendant, Charles McKenna, from a judgment of the Court of General Sessions of the Peace in and for the county of Mew York, rendered on the 5th- day of January, 1906, convicting him of the crime of robbery in the first, degree, and also from an order denying the defendant’s motion for a new trial.</p>

Appeal by the defendant, James McClenahan, from a 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 Yew York on the 15th day of February, 1906, upon tlie decision of the court, rendered after a trial at the Yew York Special Term, determining the title to certain real estate.

Appeal by the defendant, Thomas B. Biter, 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 11th day of March, 1907, denying said defendant’s motion for the issuance of a commission to take his testimony upon written interrogatories.

Appeal by the defendants, Jennie Simon 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 11th day of December, 1906, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendants’ demurrers to the plaintiff’s complaint.

Appeal by the plaintiff, Thomas A. McIntyre, from an interlocutory 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 15th day of January, 1907, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the plaintiff’s demurrer to a counterclaim set up in the defendant’s answer. The defendant sets up a counterclaim founded upon contract.

Appeal by the plaintiff, Arthur H. Wadiclr, 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 17tli day of July, 1906, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits.

Appeal by the plaintiff, Yeryl Preston, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 29th day of November, 1905, upon the report of a referee, dismissing the complaint upon the merits.

Appeal by the plaintiff, Veryl Preston, 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 28th day of November, 1905, upon the report of a referee, dismissing the complaint upon the merits..

Appeal by the defendants, Moses Matthews and another, and by Irving Bachvach and another, 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 29th day of January, 19.07, denying tlie appellants’ motion to resettle a prior order so as to show that the motion which it denied was made on behalf of the defendants Matthews and Yalensteiu, and also oh behalf of Irving Bachracli and Isaac…

Appeal by the plaintiff, Frazer & Haughton, Limited, 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 January, 1906, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term,

<p>Crime — forgery in first degree in executing and uttering forged deeds — evidence — person whose name is forged need not be produced as witness — prior conveyances to fictitious grantees — judgment affirmed — adjournment.</p> <p>On the trial of an indictment for forgery in the first degree in forging and uttering deeds of real property, the evidence considered and judgment of conviction affirmed.</p> <p>On the trial of an indictment for forgery it is not necessary that the person whose name is alleged to have been forged be produced as a witness and testify that he did not sign the paper or authorize the signature. These facts may he proved by other evidence.</p> <p>Criminal trials cannot be indefinitely postponed because the defendant asserts that he has a material witness who cannot then be produced. To obtain an adjournment it is necessary to show that the applicant has not been guilty of neglect and that it is probable that the attendance of the witness can be had at the time to which the trial is proposed to be deferred.</p> <p>On the trial of an indictment for forging.a deed evidence of various conveyances of the property with which the defendant has been connected and the«possiblo fictitious character of the grantees is competent as tending to show that the defendant was engaged in a scheme to defraud, which finally culminated in the forged conveyance.</p> <p>So, too, transactions had- with a person to whom the forged deed was given prior to and leading up to the final transaction were admissible.</p> <p>Charge considered and approved.</p>

Appeal by the defendants, Franklin B. Lord, as trustee, 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 New York on the 6th day of July, 1906, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendant, Lena M. Moran, as administratrix, 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 21st day of February, 1907, granting leave to plaintiff to serve an amended summons and a second amended complaint herein, adding the name of Ross F. Robertson as a party defendant.

Apeeal by the defendant, Richard A. McCurdy, 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 13th day of November, 1906, denying the defendant’s motion to strike out certain allegations of the complaint as irrelevant and redundant, and to require that the complaint be made more definite and certain and to have the facts constituting the several causes of action separately stated and…

Appeal by the defendant, Richard A. McCurdy, 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 13th day of Movember, 1906, denying the defendant’s motion to have the complaint made more definite and certain, and the statement of facts constituting the several causes of action separately stated and numbered.

Appeal by the defendants, Richard A. McCurdy 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 13th day of Hovember, 1906, denying the defendants’ motion to strike out as irrelevant and redundant certain matters alleged in the complaint, and to have the complaint made more definite and certain, and the statement of facts constituting the several causes of action…

Appeal by the defendant, Richard A. McCurdy, 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 13th day of November, 1906, denying the said defendant’s motion to strike out as irrelevant and redundant certain matters alleged in the complaint and to have the complaint made definite and certain and the statement of facts constituting the several causes of action separately stated and…

Appeal by the defendant, Robert A. Granniss, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of October, 1906, denying, without prejudice to an application for a bill of particulars after issue joined, the defendant’s motion, made before answering the complaint, to have the complaint made more- definite and certain with respect to the first, second and fifth causes of action,…

<p>Contract — evidence insufficient to show contract — when error to exclude evidence that person negotiating contract was not agent of defendants—new trial granted for failure to instruct as to measure of damage.</p> <p>Evidence .as to whether a contract was made with the defendants of with a third person individually considered and</p> <p>Meld, that it was insufficient to sustain a iindmg that the contract was made with ■the defendants.</p> <p>When in an action lor the breach of a contract the defendants contend that the contract was made with a third person who' was not acting as their agent but-the court charges that the plaintiff may recover either if the contract were made with the,defendants or with the third person acting.for them, it is error, to exclude an agreement fixing the business relations, between the detendauts and the third person. Such error is not cured by charging- in iubstafice that, the plaintiff cannot recover if the iury find that no agreement was entered into hut that the jury may consider both the defendants’ testimony denying, the ■ contract was made with them and the testimony as to the agency of tl.e third person,</p> <p>When m an action on the breach of ft contract the court fails to give any instructions as to the rule of damages and there is no evidence specifically indicating the amount of damage, the verdict will not be affirmed but a hew trial should he granted.</p>

Appeal by the defendant, Charles C. Marshall, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county, of New York on the 28tli day of January, 1907, denying the defendant’s motion to have another person interpleaded and substituted as defendant.

<p>Principal and agent — commissions of factor on damaged goods taken over by insurer — disbursements to insurance adjuster and attorney.</p> <p>When a factor’s contract entitles him to a certain percentage on a sale of goods for the principal and a less percentage if the goods are-not sold by the factor but are redelivered to the principal or transferred to other parties at his request, the factorIs only entitled to the less percentage when the goods are damaged by fire and taken over by the insurer under an option in the policy. ■ The factor’s contract should he construed to mean that he is entitled to the higher commission only upon effecting a sale in the general course of business. The taking over of the goods by the insurer is in the nature of a transfer to third parties without sale.</p> <p>But when such insurance is taken out both for the benefit of the principal mid the factor, the latter is entitled to be reimbursed for reasonable fees paid to an adjuster for services rendered and for legal advice.</p>

Appeal by the defendant, Frank M. Parker, as attorney in fact, etc., from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in tire office of the clerk of tire county of New York on the 22d day of December, 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.

<p>Appeal by the defendant, the New Y orle .City 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 20th day-of October, 1906, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 22d day of October, 1906, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiffs, James A. Grant 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 1st day of-February, 1907, vacating a prior order for the examination of the defendant William C. Greene before trial.

Appeal by the defendant, the Greene 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 12th day of January, 1907, denying the said defendant’s motion to vacate' a prior order for the examination of the directors, of the appellant company.

<p>Appeal by the defendant, the United States Regulation Fire Arms 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 24th day of October, 1906, upon the verdict of a jury, and also from an order entered in said clerk’s office on the . 15th day of October, 1906, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, the New York City Railway Company, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 14th day of February, 1907, affirming a judgment of the Municipal Court of the city of New York in favor of the plaintiff entered on the 2d day of October, 1906, upon the decision of the court.</p>

Appeal by the defendant, Elise Hoffman, from a judgment of the Court of Special Sessions of the City of New York, First Division, rendered on the 3d day of January, 1907, convicting the ' defendant of the crime of maintaining a public nuisance.

<p>Appeal by the petitioner, The .City of Mew York, from certain portions of an order of the Supreme Court, made at the Mew York Special. Term and entered in the office of the clerk of the county of Mew York on the 28tli day of April,'1906, confirming the report of commissioners of estimate and assessment in- the above-entitled condemnation proceeding.</p>

Appeal by the Comptroller of the State of New York from an order of a Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 5th day of November, 1906, reversing so much of an order entered in said Surrogate’s Court on the 5th day of October, 1906, as fixed a tax upon a legacy under the will of Eliza White, deceased, to the McAuley Water Street Mission.

<p>Tax — cemetery association in city óf New York not liable for assessment on street opening — when abutting owner entitled to damage —• charter construed.</p> <p>Under the exemption afforded hy sections 1 and 2 of chapter 310 of the Laws of 1879, a cemetery association is not only exempt from assessment for street improvements during the period its lands are used for cemetery purposes, but no assessment whatever should be laid against it to be collected in the future when the lands cease to be used for that' purpose.</p> <p>The exemption applies not only to the lands of such association actually occupied as graves, but to all lands held exclusively for cemetery purposes.</p> <p>When commissioners have erroneously levied an assessment upon cemetery property to he collected when in the future the lands shall have ceased to be used for that purpose, the report should be sent back for a redistribution of the sum levied upon other property not exempt.</p> <p>When an owner of lands conveys portions to grantees with easements of light, .air and access over lands proposed to be taken for a public street, reserving to himself the fee of the proposed street, he cau convey to the municipality no greater right iu the fee of the street than he himself retains. Hence, such, original owner by ceding the fee of the street to a municipality does not deprive bis prior grantees of the right to compensation for damages to their property caused by a change of grade as authorized by section 980 of the charter of Greater New York.</p> <p>Section 979 of said charter indicates that .a change of grade is a “regulation ” of the street under section 980 for which an abutting owner may recover damage. Section 951 of the'charter of Greater New York, providing that after the taking effect of the act there shall be no liability to-abutting owners for originally establishing a grade, relates exclusively to assessment for local improvements other than those confirmed by a court of record and has no application to a proceeding for street opening.</p>

<p>Appeal by the relators, the Van Horden Trust 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 29th day of September, 1905, dismissing. a writ of certiorari theretofore issued herein and confirming an. assessment upon personal property.</p>

Appeal by the defendant, Bichard A. Canfield, 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 12th day of June, 1906, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 13th day of June, 1906, denying the defendant’s motion for a new trial made upon the minutes.

<p>Will — trust for charitable uses — corporations — power to take—when trust not void for indefiniteness—power of Supreme Court to supervise . . gift to charitable uses.</p> <p>Section 6 of chapter 319 of the Laws of 1848 (as amd. by Laws of 1903, chap. 623), providing that certain corporations shall not take more, than one-half of an estate under a will made within two months of the death of a testator, affects only corporations formed under that act and has no application to other corporations.</p> <p>When a testator devises his residuary estate in trust, the rents and profits to be expended by the executor annually and paid over to religious, educational and eleemosynary institutions as in his judgment shall seem advisable, not more</p> <p>■ than §500 to be. paid to any one institution in any one year, although the will' is indefinite as to any particular beneficiary or any particular charitable purpose, the indefiniteness does not invalidate the gift when the. purpose can be ascertained to be of a charitable nature.</p> <p>Such will should not be held to be invalid upon the ground that the trustee may in his discretion pay to corporations formed under the act of 1848 and not entitied to take, because by section 2 of chapter 701 of the Laws of 1893 (as amd. by Laws of 1901, chap. 291), the Supreme Court has control over gifts, bequests and devises of that nature, and may be appealed to at any time in order that the gift may take the course indicated, and not go to societies incompetent to take or for purposes not contemplated by the testator.</p>

Cross-appeals from an order of the Supreme Court, entered in the office of the clerk of Kings county on the 3d day of January, 1906.

Appeal by the plaintiff from a judgment of the Supreme Court, entered in the office of the clerk of Kings county on the 19th day of March, 1906, and also from an order entered in the said office on the 31st day of May, 1906. Judgment and order affirmed, with costs.

<p> Negligence—right of way—pedestrian struck by street car between intersecting streets. </p>

<p>Appeal from an. order granting temporary injunction.</p>

<p>Appeal from a j udgment entered on a verdict and from an order denying motion for a new trial.</p>

<p>Appeal from a judgment entered in the county of Jefferson July 16, 1906, in favor of the defendant, for costs, upon the report of a referee.</p>

Appeal by the plaintiff from a judgment of the County Court of Niagara county upon a verdict for the defendants directed by the presiding judge, entered in the clerk’s office of Niagara county on the 11th day of July, 190?, and from an order entered in said clerk’s office on the 5th day of June, 1906, denying the plaintiff’s motion for a new trial made upon the minutes. The action is in replevin and the controversy is over the ownership of certain stoves.

Order affirmed, with ten dollars costs and disbursements. All concurred, except Spring and Kruse, JJ., who dissented in a memorandum by Kruse, J.