Volume 119 — New York Appellate Division Reports

Appeal by the plaintiff, Edith 0. Stein, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York oh the 17th day of December, 1906, upon the decision of the court rendered after a trial at the New York Special Term sustaining the defendant’s demurrer to the plaintiff’s reply to affirmative defenses and dismissing the complaint upon the merits.

Appeal by the plaintiff, Emma 0. Bowen, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendants, dismissing summary proceedings • ■ instituted to recover the possession of real property.

Appeal ' by. the defendant, the Herring-Hall-Marvin Safe Company, from a judgment of the. Supreme Court in favor of the plaintiff, entered in the office of the' clerk of the county of Kings on the 6th day of April, 1906, upon the verdict-of a jury for $3,500, and also from an order entered in said elerk’s office on the 9th day of April, 1906, denying the defendant’s motion for .a new trial made ■ upon the minutes.

Appeal by the.defendant, Alter Darwin, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor -of the plaintiff, rendered on the 4th day of December, 1906.

Appeal by the defendant, John B. Grubb, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Westchester on the 9th day of July, 1906, upon the decision of the court, rendered after a trial at the ■ Westchester Special Term, directing the specific performance '.by the defendant of a contract to purchase from the plaintiffs certain real estate in the city of Yonkers.

Appeal by the plaintiff, John J. Gutheil, 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 12th day of. May, 1906, granting the defendant’s motion for a new trial on the ground of newly-discovered evidence. Plaintiff was a member of the uniformed force of the department of street cleaning in the city of New York.

<p>Negligence — injury to passenger by starting car — failure of plaintiff to reach place of safety'— pleading construed. ■</p> <p>Under a complaint which alleges that when the plaintiff as a passenger upon an electric surface car had. mounted the platform and was' about to enter the car, the.latter “ was suddenly moved forward with a violent jerk before the plaintiff had been given a reasonable opportunity to get into said car or take a seat therein,” the plaintiff may recover without proof that the car' was started with a violent, jerk, for the pleading may be construed to-be founded on the failure of the defendant to allow a reasonable opportunity to gain a place of safety before starting the car. ' .</p> <p>. It is for the jury to say whether an elderly woman who boards an electric surface • car and is injured by the starting thereof before- she is able to reach her seat is entitled'to recover.</p>

<p>Pleading — complaint;— riparian rights.</p> <p>In an action to establish riparian rights on the Hudson river; the complaint alleged in substance that prior owners of uplands received a grant of'lands under waters-of the Hudson river; that said owners conveyed to the defendant railroad a certain piepe of said land comprising the lands under water theretofore granted; that the defendant reconveyed to the plaintiffs’ grantor, who had become the owner of the original parcel, án additional strip, so that the \ plaintiffs are owners of premises which are uplands of the river, which, but . for the premises purchased by the defendant, would abut upon and be bounded - by th.e waters; that the lands occupied by the defendant are -used- solely for railroad purposes; that the right of the defendant to construct and operate its road is subject to the riparian rights of the plaintiffs to cross and recross for access to the river, and that the defendant has constructed upon its lands certain tracks, switches, etc., which prevent the plaintiffs from crossing, to the impairment of their riparian rights. On demurrer,</p> <p>Held, that the complaint stated a cause of action.</p>

Appeal by the defendant, Charles Steinberg, from a judgment of the Municipal Court of the city of ¡New York, borough of Queens, in favor of the plaintiff, rendered on the 6th day of February, 1906.

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

Motion by the defendant, The Brooklyn Heights Railroad Company, for a new trial, upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance; upon the verdict , of a jury in favor of the plaintiff for $15,000, rendered after a trial .at the Kings County Trial Term, and an order bearing ■date the 26th day.of March, 1906, and entered in the office of the clerk of the county of Kings, denying the defendant’s motion for a new trial made…

Appeal by Florence E. Mayer and others from a decree of- the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 23d day of July, 1906, settling the account of the administrators of William II.

Appeal by the plaintiff, Thomas MacKellar, from a judgment of the Supreme Court in each of the above-entitled actions in favor of the defendant, entered in the office of the clerk of the county of Nassau on the 26th day of October, 1904, upon the verdict of a jury, and also from an order in each action entered in said clerk’s office on the 1st day. of November, 1904, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, the Yulcanite Portland Cement Company, from a judgment of-the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 28 th day of 'December, 1905, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 4th day of January, 1906, denying the -defendant’s motion for a new trial made upon the minutes. , _</p>

Appeal by the plaintiff, Daniel H. Tolinan, from a portion of 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 6th day of December,'1906.

<p>Practice — action dismissed for neglect to prosecute — affidavit not excusing delay. ■ ■</p> <p>When a plaintiff has failed to bring a cause to trial for eleven years following the date of issue, the action will be dismissed for unreasonable neglect to prosecute unless the neglect be excused by the plaintiff.</p> <p>An affidavit by the plaintiff’s attorney stating that the action was not brought to trial because he was under the impression that a practical adjustment of the controversy had been made is insufficient as establishing an excuse, especially when there are counter affidavits stating that no attempt at compromise was ever made.</p>

<p>Appeal by the plaintiff, Leopold Schnitzer, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 26th day of February, 1906, upon the decision" of the court, rendered after .a .trial at the Kings County Trial Term, a jury having been waived.</p>

Appeal by the defendant, John W. Denton, from a judgment of the County Court of Nassau county, entered in the office of the clerk of said county on the 10th day of July, 1906, upon an order of said County Court entered in said clerk’s office on the 10'th day of July, 1906, reversing a judgment of a justice of the peace in favor of the defendant, and also from the said order upon which the judgment appealed from was entered. ■ .

Appeal by the defendant, Joseph Koehler, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn,-in favor of the plaintiff, rendered on the 29th day of March, 1906. ■

Appeal by the plaintiff, Joseph Fallert Brejving Company, .Lim-. ited, from a judgment of the Municipal Court of the city of Yew York, borough of.Brooklyn, in favor of the defendants, in an action-• brought to recover the amount of a deposit made at the time of the execution of a- three-year lease of premises in Wyckoff avenue, borough of Brooklyn, January 29,1903.

<p>Beal property —■ mortgagee in possession'— Statute of Limitations against mortgagor.</p> <p>A mortgagee has no title to mortgaged premises either before or after default, and if in possession, the mortgagor may maintain-ejectment, in which case the Statute of Limitations is found in section 365 of the Code of Civil Procedure, not in section 379.</p> <p>A mortgagee in possession neither has' title nor holds adversely to the title of ■ the-mortgagor,d)ut the-Word “adverse” as used in section 379 Of the" Code of Civil Procedure limiting an action to redeem from a mortgagee in possession • . must be construed to mean that a mortgagee in- rightful possession .of- the premises for over twenty years after a breach of a condition or covenant of the mortgage obtains title, otherwise said section -would be ineffective.</p> <p>When an action of foreclosure is bfoiight to judgment but no sale is had there- - tinder and the mortgagee with the knowledge and consent of the mortgagor is ' in possession for over twenty years, the possession'ripens into title by virtue of section.379 of the Code of Civil Procedure.</p>

Appeal by the defendant, The City of New York, from a .judg- - ment of the Supreme Court iff favor of the.plaintiff, entered in the office of the clerk of the county-of Kings on the 8th day of'August, ■ - 1905, upon the decision of the court rendered after: a trial at; the Kings-County Trial Term without a jury. -

<p>Gas — penalty for cutting off supply — written request of consumer requisite.</p> <p>The penalty for cutting off gas imposed by section 65 of chapter 566 of the Laws of 1890 cannot be recovered without the written application by. the consumer required by the statute. .</p> <p>A gas company by commencing .to supply gas without the written application does not thereby waive the requirement so as to become liable for the penalty upon discontinuing the service.</p>

<p>Attorney and client contract of retainer construed.</p> <p>An attorney’s contract of- retainer whereby the client agrees to pay him twenty- _ ■five per cent of such property as he may secure contemplates'a collection of the claim before the percentage is recoverable, and the client is hot liable when'</p> <p>. it is not shown that any amount was collected. '</p> <p>The fact that the attorney at the instance of the client gave a substitution is not; such breach of the contract of retainer as renders the client liable -when no collection has been made.</p> <p>When an attorney fails to show performance of the contract" of retainer his recovery, if any, must be based upon a quantum meruit and not upon contract"</p>

<p>... ReaRghment- of. an appeal by the defendant, Reuben L. Maynard, from a judgment; of-.the. Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Westchester on the 2d day of March, 1905, upon the report of a referee, .</p>

Appeal by the defendant, The City of New York, from a judgment of the Supreme- Court in favor of the plaintiff, entered in the office of the clerk, of the county of Kings on the 5th day of December, 1905, upon the decision of the court, rendered after a trial at the Kings County Trial Term without a jury.

<p>Contract — agreement of creditor of solvent corporation not to enforce ■ collection —. consideration — collection of corporate note without legal process not violation of agreement.</p> <p>An agreement by a solvent corporation with its creditors to distribute .its assets ratably is merely a promise to do what the law requires and furnishes no consideration for an agreement by a creditor to forbear enforcing the collection of his claim.</p> <p>A promise by a creditor of such corporation to forbear “forcing” collection of its claims is not violated by the presentation for payment of a corporate note at the bank where the corporation deposited its assets and the payment thereof, by the bank. Such agreement should ■ be construed merely to require forbearance from collection by legal proceedings.</p>

<p>Motion for leave to appeal to the Court of Appeals.</p>

Appeal by the defendants, Hans Triest and another, etc., from a judgment of the Municipal' Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered .on the 15th day of September, 1906. v

<p>Appeal by the 'plaintiff, Benjamin Larzelere, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, rendered on the áth day of December, 1906.</p>

Appeal by the defendant, Antonino Palminteri, from an order of the County Court of Kings county, entered in the office of the clerk of said county on the 8th day of October, 1906, affirming an order of a city magistrate adj udging the defendant to be a disorderly person.

Appeal by the plaintiffs, John Camden and another, from a judgment-of the Supreme Court in-favor of the defendant, entered in the office of the clerk of the county of Queens on the 1st day of December, 1904, upon the verdict of a jury dismissing the complaint upon the merits, and also from an order entered in said clerk’s office on the 1st day of December, 1904, denying the plaintiffs’ motion for a new trial made upon the minutes.

<p>Appeal by the defendant, The Central Railroad Company of New Jerséy, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, rendered on the 26th day óf July, ' 1906.</p>

Appeal by the defendant, Samuel Collins, from an order of the . Supreme Court, made at the Westchester ¡Special Term and entered in the office of the clerk of the county of Westchester on the 12th day of December, 1906. -

Appeal by the defendant, Michael J. Dady, from á judgment of the Supreme Court in favor of the plaintiff and against the said defendant, entered in the office of the clerk of the county of Kings on the 22d day of June, 1906, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 25th day of June, 1906, denying the said defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The .City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 17th day of July, 1905, upon the decision of the court rendered after a trial at the Nassau Trial Term without á jury.

Appeal by the defendant, .The 'New York, New Haven and Hartford Railroad Company, from, a judgment of the County Court of Dutchess county in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 9th day of February, 1906, upon the verdict of a jury for $700, and also from an order entered in said clerk’s office' on the 5th day of February, 1906, denying the defendant’s motion for a new trial made upon the minutes. ;

Appeal by the defendant, Charles R. Davis, 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 25th day of May, 1906, . upon the decision of the court, rendered after a trial at the Kings County Special Term, adjudging that the said defendant is not an heir at law of William H. B^vis, deceased. The action is for the partition of real estate. William H. Davis, . grandfather, is the common ancestor.

Appeal by' the plaintiff, Ida S. Mayhood, from -a judgmént of the Supreme Court, in favor of the defendant, entered in the office of the clerk of the county of -Kings on the 30th day of April, 1906, • upon the dismissal of the complaint by direction! of the court after a trial at the Kings County Trial Term, and also from .an order entered in said clerk’s office on the 7th day of May, T9-0.6, denying the plaintiff’s motion for a new trial made upon the minutes..

Appeal by the defendant, The Central Brewing Company of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 2ith day of July, 1906, upon the verdict of a jury for $3,000,' and also from an order entered in said clerk’s office on the 19th day of July, 1906, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Emma.C. West, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Westchester on the- 25th day of August, 1906, upon the decision of the court, rendered after a trial at the Westchester Special Term, overruling the defendant’s demurrer to the complaint. ...

Appeal . by Israel Corse (referred to in the will of Israel Corse, deceased, as Israel Corse, Jr.) from certain portions of a decree of the Surrogate’s ’Court of the county of Suffolk, entered in. said Surrogate’s' Court-' on the 17th day of May, 1906. Decree of the Surrogate’s Court of Suffolk county; in so far as appealed from; affirmed, with costs, on the opinion of the surrogate.

Heargument of an appeal by the petitioner, Estella Losee Hurd, as administratrix, etc., from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrógate’s Court on the' 28th day of April, 1905.. Decree of the Surrogate’s Court of Kings county affirmed, with costs, upon the opinion of the surrogate. Woodward, Hooker and Gaynor, JJ., concurred ; Hirschbebg, P. J., and Jerks, j., dissented;

Appeal by the defendant, James M. Quigley, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 27tli day of July, 19Q6, upon the decision of the court, rendered after a trial at the Nassau Trial Term, the jury having been discharged. Judgment affirmed upon the opinion of Hr. Justice Burr at Special* Term, without costs.

Appeal by William 0. Wilson, Acting Comptroller of the State of Mew York, from an order of the Surrogate’s Court of the county of Westchester, énteredin said Surrogate’s Court on the 30th day of June, 19'06, modifying a-prior order of said court fixing a transfer tax. . ' Order of the Surrogate’s Court of Westchester county-affirmed, with costs, upon the opinion of-the surrogate.

Appeal by the plaintiff, Alessandro Tálente, from á jüdgment of the Municipal Court of . the city of New York, borough of Brooklyn, in favor of the defendant, rendered on the 29th day of October, 1906.

Appeal by Michael J. Flaherty, as sheriff of' the county of Kings, 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 Kingston the 6th day of-July, 1906.

Appeal ¡by the relator, the ¡Nassau Electric Railroad Company, from somuch of. an order of the Supreme Court, made at the Kings County Special Term and entered in 'the office of the clerk of the county of Kings on the 13th day of October, 19.06, granting a peremptory writ of mandamus, as denies the relator’s motion that the defendants be required to credit upon the special franchise tax of the relator for the year 1900 a certain sum paid by it to the commissioner of 'bridges…

<p>Bills and hótes — evidence — when maker may show lack of consideration as against holder.</p> <p>In an action upon a promissory note given in part payment for the assignment of a contract to convey lands the title to which proved to be defective, which note' was transferred. by the payee to his father, the defendant is entitled to show what occurred between the seller, the buyer' and the transferee who met to pass title. Such evidence is competent to slioXv that, the title was bad and was rejected, that the parties agreed that the title was bad, that the earnest money . was paid .back to the selle!, and that the transferee acquired the note with-knowledge of these facts and hence- subject to the defense of failure of consideration. • ■</p> <p>Such evidence is not hearsay with respect to the plaintiff,' who was not present, but is" direct-evidence of competent and "necessary facts.</p>

Appeal by the plaintiff, Abraham Kampf, from a judgment of • the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings oh the 10th day of October, 1906, upon the'dismissal of the complaint by direction of the -court after a trial at the Kings County Trial Term.

<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 clerk of the county of Westchester on the 9th day of July, 1906, upon the verdict of a jury, for $1,350, and also from an order entered in said clerk’s office on the 14th day of July, 1906, denying the defendant’s motion for a new trial made , upon the minutes.</p>

<p>Negligence use of machinery’— when owner required to protect same i under section 81 of the Labor Law— assumption of risk.</p> <p>A defendant who maintains machinery for a cooperage as part of its business establishment, and who contracts with the plaintiff’s- emplojér to keep the machinery in repair and allows him to use it to repair barrels for it which it uses in:its-business) is under the duty imposed by section 81 of the Labor Law' to properly guard the machinery and maybe held liable for an injury resulting to the plaintiff from an unguarded shaft of the engine.</p> <p>The duty prescribed by said section rests, upon the defendant although there be no contract relation between him and the plaintiff. The rules governing where machinery is leased do not apply, as the defendant retained control and - charge of the machinery, merely allowing its use by the plaintiff’s employer. Under such circumstances it is not error' to refuse to submit the questions of assumption of risk to the jury. Assumption of risk is a matter of contract and inapplicable in an action against a' third person.</p>

Appeal by the defendant, Rudolph M. Haan, 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 14th day of May, 1906, upon the verdict of a jury for $8,000, and also from an order entered in said clerk’s office on the 18th day of May,*1906, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the Emigrant Industrial Savings Bank from a decree of the Surrogate’s Court of the county, of Kings, entered in. said Surrogate’s Court on the 29th day of June, 1906, directing , the appellant forthwith to pay to Mary Wliite, as administratrix of James White, deceased, thestim of $910.66.

Appeal by the defendants, Michael Hormoyle and another, from a judgment of the Supreme Court in favor of,the plaintiff, entéred in the office of the clerk of the county of Kings on the 19th day of December, 1905, upon the decision of the court rendered after a trial at the Kings County Trial Term without a jury.

<p>Fraud — constructive fraud of testamentary trustee procuring conveyance to himself— Statute of Limitations.</p> <p>When a 'testamentary trustee conveys lands to a third person and on the same day accepts a reconveyance to himself individually, it is a constructive fraud. The transaction is not void, but merely .voidable, at the election of the beneficiaries under the will.</p> <p>When in an action to set aside such transfer as fraudulent, the proof is insufiv cient to show that the value paid was less than the true value, and hence there -was no actual fraud, the Statute of Limitations is that prescribed in section 388 of the Code of Civil Procedure, and the action is barred by the expiration of ten years. /</p>

Appeal by the plaintiffs, Emanuel S. Kuh and others, from an order of the Supreme Court, made at the' New York Special Term and entered in the office of the clerk of the county of New York on the 18th day of March,- 1907* granting the defendants’ motion to set aside a judgment on the ground that the entry thereof was irregular.

<p>■ Appeal by the plaintiff, Mary E. McHulty, 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 9th day óf Hovembór, 1906, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits.</p>

Appeal by the defendant, Hobart S. Bird, 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, vacating and setting aside as unauthorized the summons and all proceedings brought by said defendant as attorney for Alexander Turna in an action against the Foundation Company, with notice of an intention to bring up for review upon such appeal ah order, of reference…

Appeal by the defendant, Abraham H. Hummel, from a judgment of the Supreme Court rendered on the 20th day of December, 1905, convicting the defendant of the crime of conspiracy under an indictment against the said Hummel and others found in the Court of General Sessions of the Peace in and for the county of New York.

■ ■ Appeal by Irving Bachrach 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 8th day of January, 1907, denying a motion made by the defendants and the appellants to vacate an ex parte order appointing a receiver, and to make the appellants parties defendant in this action. -

<p>Submission of a controversy upon an agreed statement of facts.</p>

<p>Submission of a controversy upon áii agreed statement of facts.</p>

Appeal by the defendant, Charles .Curie, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 11th day of December, 1906, upon the verdict of a jury rendered after a trial at the New York, Trial Term.

Appeal by the defendant, Lorenz Zeller, 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 5th day of October, 1906, upon the verdict of a jury, and also from an order entered in said-clerk’s office on the 9th day of October, 19.06, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Adolph Hey man, from an order, of the Supreme Court,' made at' the New York Special Term a,nd entered in the office of the clerk of the county of New York on the 7th day of March, 1907.

Appeal by the defendant, William W. Vaughan, from a judgment of the Supreme-Court in favor of the plaintiff, .entered in the •office of the cleric of the county of Mew-York on the 9th day of 'October, 1906, upon the verdict of a jury rendered by direction of the court after a trial at the Mew York Trial Term.

Appeal by the defendant, James J. Hagan, 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 16th day of Hovember, 1906, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the said defendant’s demurrer to the complaint.

Appeal by Daniel J. Breslin from an order of the Supreme-Oourt, made at the Mew York -Special Term and entered in the-office, of the clerk of the county of Mew York on the 15th day of January, 1907, denying his motion to dismiss the proceeding and. . directing a reference.

' Appeal by the plaintiff,.Milton L. Bouden, 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 April, 190L, granting the motion of the defendant, Leander S. Sire,; fór a reargumént of his motion for a stay of execution of a ■judgment- of foreclosure pending an appeal and granting such motion for a stay and fixing the amount of the undertaking.

<p>Motion- to make the city of ¡New Y órk a party to this proceeding.</p>

Appeal by the plaintiff, Mary Mansfield, 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 26th day of February, 1907, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the lltli day of February, 1907, denying the plaintiff’s motion, for a new trial made upon the minutes. -

. Appeal by the defendant, the Metropolitan.Street Bailway 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 City • Court of-the city of New York in favor of the plaintiff, entered in the office of thé clerk of said court on the-22d day of January, 1906, upon the. verdict of a jury for $200, and also affirming an order of. said City…

: Appeal by. the defendants, Hyman Adelstein 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 25th day of January, 1907, denying the said defendants’ motion to vacate an order and judgment theretofore entered in the above-entitled action.

Appeal by the plaintiff, the Van Kannel Revolving Door Company from a judgment,of the Supreme Court in favor of the defendant W. & J. Sloane, entered in the office of the clerk of the county of New York'on the 15th day of March, 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 February, 1907, reversing a judgment of the Municipal Court in favor of the defendant in an action brought by the plaintiff to recover a penalty of fifty dollars under the provisions of section 104 of the Railroad Law (Laws of 1890, chap, 565,. § 105,. as renumbered and amd. by…

Appeal by the defendant, Louis Levin, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, rendered on the 26th day of Hay, 1905, convicting the defendant of the crime of grand larceny in the second degree.

Appeal by the defendant,.Robert H. Spriggs, from a judgment of the Court of General Sessions-of the Peace , in and for the county óf New York, .rendered- on the 27 th' day of March, 1906, convicting the defendant of the crime of abduction, and also from an order denying the defendant’s motion for a new trial.

Appeal by'the plaintiff, Rudolph Wallach, 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 December; 1906, upon the decision of the court, rendered after a trial at the New York. Special Term, dismissing the complaint upon the merits. '

<p>Appeal by the defendant, the. Manhattan Railway Company, from a judgment of the Supreme Court iil favor of the plaintiff, entered in the office of the clerk of the county of New York on the 9th day of February, 1905, upon the report of a referee.</p>

. Appeal by the defendant,- The Buffalo Loan,. Trust and Safe Deposit 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 14tli day of September, 1906, upon the decision of the court rendered after a trial at the ¡New York Trial Term, a ' jury having been waived, with notice-of an intention to bring up .for review upon such appeal an order entered in said clerk’s office on the 6th day…

Appeal by the plaintiff, Joseph Ware, from a judgment of the Supreme Court in favor of the- plaintiff, entered in the office of the clerk of - the county of ¡New York on the 23d day of November, 1904, upon the verdict of a jury; also from an order entered in said clerk’s office on the 1st day of November, 1904, denying plaintiff’s motion for a new trial made upon the minutes, and also from an order entered on the 2d day of April, 1906, denying the plaintiff’s motion for a…

<p>Executors and administrators —facts insufficient tp show that decedent received property as executor — remainderman not entitled to sue representative of deceased executor — court — when Supreme Court will not hear accounting by representative — evidence — deed, how proved. ■</p> <p>In an action by a remainderman against the representative of the deceased life' beneficiary, evidence that over two years before the testatrix’s death-she sold certain lands is insufficient to 'show that the purchase price ever came into the • hands of her executor. There is no presumption that the testatrix was not indebted or that the proceeds of the sales were not used to pay her debts.</p> <p>■Other evidence considered. and held insufficient to establish that the executor received the proceeds .of mortgages and savings bank deposits formerly owned by decedent.</p> <p>While the Supreme Court has jurisdiction to compel an executor to account, it will refuse to exercise such jurisdiction, unless the circumstances require the interposition of a court of equity rather than the usual proceedings before the surrogate.</p> <p>A remainderman is not entitled to sue the representative of a deceased executor and life beneficiary for a personal judgment, for such representative can only . be compelled to account for property of the prior estate which came into possession of the deceased executor and the question cannot be determined without the presence of a representative of the prior estate to whom the ’ accounting should be made.</p> <p>The way to prove deeds and mortgages at trial is by the original instrument, the .original records or certified copies. The court is not justified in receiving, against objection, a statement of counsel as to the contents of recorded instruments, thus throwing the burden upon the defendant to search the records to test the accuracy of . the testimony.</p>

Appeal by the relators, J. Romaine BroWn and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of April, 1907, denying the relators’ motion for a peremptory writ of mandamus.

Appeal by the petitioner, Henry B. Snyder, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 18th day of April, 1907, directing a reference to determine the value of the services rendered by the respondents as attorneys for the petitioner,

Appeal by.the defendant, Frank Gass, as register, of the county of New York, from an order-of the Supreme Court, made at the New York -Special Term and entered in. the office of the cleik cf the county of New York on. the 29th day óf December, 1906, i granting the relator’s motion for a peremptory writ of mandamus.

Appeal by the defendant, Gabriele Maggiore, from a judgment pf the'Courtof General Sessions of the Peace in and forthe county of New York, rendered on the 25tli day of February, 1907, convicting the said defendant' of the crime of assault in the second degree, and also from an order denying his motion for a new trial, and an order in arrest of judgment.

<p>' Appeal by the defendant-, the Kingsland Brick Company,- -from an order of the Supreme Court, made at the ¡New York Special Term and entered in the office of the' clerk of the county of ¡New York on the, 26th day of December, 1906, denying the defendant’s motion for leave.to. serve; an amended answer.</p>

Appeal by Marie Heitmeyer and others from a decree of the Surrogate’s Court of the county of New York, entered in said. Surrogate’s Court on. the 30th day of July, 1906, denying their appli- . - cation to modify a prior decree entered upon the accounting of the .administrator. ,

Appeal by the defendant, Robert H. Waldron, 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.

Appeal by the defendant, Henry E. Dixey, from an order of the Supreihe 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 April, 1907, continuing a temporary in junction pendente life. ;

Appeal by the, defendant, Elbert B. Hamlin, as trustee,etc., from so much of an order of;the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16tli day of April* 1907, as imposes conditions upon granting the defendant’s motion to opén a default, and to set aside an inquest. ■

<p>Crime — grand larceny, first degree — stealing óf corporate money by agent and trustee — subdivision 2, section 528 of Penal Code construed — intent essential — facts not showing intent — facts not showing that defendant paid personal debt of another, officer with corporate moneys — evidence — errors in admission and exclusion of corporate books and papers — charge.</p> <p>In order to sustain a conviction under subdivision 2 of section 528.of the Penal Code providing that .a person having custody of the property of another as bailee, agent or tfústeé, etc., who appropriates the same with intent to defraud" the true owner of his property is guilty of larceny., it is essential-to show an “.intent to deprive or.defraud.” the-owner of his property or of its use. It is not. essential to show an intention by the defendant, to reap any personal advantage from the taking, as the crime consists in the intent to despoil the owner of his property.</p> <p>The defendant was general counsel and vice-president of an insurance company. Several claims aggregating a large sum of money had been made against the insurance company by different parties, one being a claim by a. former employee for moneys claimed to have been advanced to the president of the corporation, a brother of -the defendant. This claimant asserted the validity of his claim both as against the corporation and against its president individually. The majority of these claims, including the claim against the president, were being prosecuted by one attorney. The defendant, acting on the direction of the executive committee of the corporation,, of which he was not a member, settled the claims with money of the corporation drawn'under a warrant signed by himself and a majority of the executive committee.</p> <p>Held, that the defendant was not guilty'under subdivision 2 of section 628 of the Penal Code unless he used the corporate moneys to pay a claim for which the corporation was not liable;</p> <p>That the fact that the president of the corporation might be personally liable for one of the claims paid did not establish the fact that the corporation itself was' \ not jointly liable, the claim being also asserted against it, and.hence the facts V were insufficient to sustain thé judgment of conviction. ;</p> <p>Held further, that the evidence as a whole negatived the criminal intent .essential to conviction under the statute;</p> <p>That a- person cannot be convicted of a crime without proof of facts which j ustify a conviction, and. the exclusion-of evidence which would ha.ve proved such fact on the objection of the defendant does not justify an affirmance of the ■ conviction;</p> <p>That the exclusion of minutes of a meeting of the board of directors at which the defendant was present, .which authorized the action taken by him in settling the claims was error, as they were competent to show that the executive committee gave authority for the settlement and to show the good faith of the defendant in obeying instructions;</p> <p>That it was error to admit entries in the books of the corporation with which the defendant had nothing to do and of which he had no knowledge showing the . payments made in settlement of the actions, for the books of the corporation are not evidence as against an officer in a criminal prosecution against him;</p> <p>That it was error to admit receipts given by the defendant to a third person for the deposit of canceled checks and the checks themselves, which indicated that they had been passed to the credit of the Superintendent of Insurance, such evidence merely tending to prejudice the defendant;</p> <p>That it was error to charge in substance that a conviction could be had upon proof that the defendant, as an officer of the corporation, paid a personal claim “ asserted ” against another officer, for it was also necessary to-find that the | claim was one for which the corporation itself was not liable. ■</p>

Appeal by the plaintiff, Charles F. Dieterich, from, an interlocutory judgment-of the Supreme Court in favor of the.defendant, entered in the office of the clerk of the county of Dew York on the 19th day of February, 1907, upon the decision of the court, rendered after a trial at'the Dew York Special Term, sustaining the defendant’s demurrer to the plaintiff’s complaint.

<p>■Parent and child — conveyance by mother to daughter in consideration of support — fraud and undue influence.</p> <p>"When the relationship between parties is that of parent and child, principal and agent, or where one party is situated so as to exercise controlling influence over the will and conduct of another, transactions between them-are scrutinized with - extreme vigilance and it must be shown that the transaction was understood. . and that there was no fraud, mistake or undue, influence.</p> <p>An aged woman, infirm mentally and physically, conveyed lands to her daughter in consideration of support which the grantee not only failed but never intended to give. On all the evidence/ '</p> <p>Meld, that the conveyance should be set aside.</p> <p>McLaughlin and Scott, JJ., dissented, with opinion.</p>

Appeal by the plaintiff, William Crompton, from an order of the Supreme Court, riiade at the Flew York Special Term and entered in the office of the clerk of the county of FFew York on the 4th day of April, 1907, vacating a subpoena duces tecum theretofore served upon the defendant herein.

Appeal by the plaintiffs, Emanuel J. Myers and others, from an order of the Supreme Court, made at the Yew York.

AlPpeal by the defendants, John H. Starin and another, from am 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 15th day of March, 1907, denying the defendants’ motion to» eliange the place of trial from the county of Mew York to the: ' county of Montgomery.

<p>Appeal by the defendants, the Bidgway-Thayer Company and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of New York on the loth day of December, 1906', upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendants’ demurrer to the complaint.</p>

Appeal by the defendant, Louie Way, from a judgment of the Supreme Court, rendered on the 28th day of May, 1906, at the New York Trial Term, convicting the defendant of the crime of assault in the first degree, and also from two orders denying, respectively, the defendant’s motions for á new trial and in arrest of judgment. ■ '

Appeal by Leo Schlesinger, as ancillary receiver of the German Insurance Company of Freeport, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th day of March, 1907, denying the appellant’s motion to instruct his coa'ncillary receiver , to join with him in collecting the assets of the . defendant within this State.'

<p>Eminent domain—award—benefits to petitioner not considered.</p> <p>In determining the award to he paid for lands taken by eminent domain, the benefits, direct or consequential, received by the petitioner should not be considered, but the award should be based upon the value to the owner of the' property and rights taken from him. The commissioners should also consider the adaptability of the lands taken for particular uses by the owner.</p> <p>Award of commissioners considered and confirmed.</p>

' Appeal by the defendants, William J. O’Brien and others, from an order of the Supreme Court, made at the Yew York Special Term and entered in the office of the clerk of the county of Yew ■ York on the 14th day of March, 1907.

. Appeal by the plaintiff,. Adeline Estelle Sullivan Oakes, from an order of the. Supreme Court, made at the blew York Special Term and entered hr the office of the clerk of the comity of .Sew York on the 18th day of March, 1907, denying the plaintiff’s motion to vacate an. order for her examination before trial.

<p>Appeal by the defendants, Amasa Lyon and another, from an interlocutory judgment of. the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Mew York on the 22d day of January, 1907, upon the decision of the court, rendered after a trial at the Mew York Special Term, overriding the defendants’ demurrer to the complaint. •</p>

<p>Appeal by the defendants,, Samuel B. Fox and another, from an interlocutory judgment' of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of. the county of New .York, on the ,19th day of December, 1906) upon the decision of the court, rendered after a trial-at the New York Special Term, overruling the defendants’ separate demurrers to the complaint, upon tlie grounds that the complaint does not state facts sufficient to constitute a cause of action.</p>

<p>Bills and notes—indorsement procured by false representation of payee — when indorser need not offer to rescind or allege damage.</p> <p>One who indorses a promissory note -without consideration, relying upon the false representations of th« payee, may set up the falsity of the representations as a defense without offering to return the consideration for the note and without alleging damage.</p> <p>App. Div.'j First Department, May, 1907.</p> <p>Such indorsement being a contract between the indorser and the payee and being • separate and distinct from the maker’s contract, the indorser is not limited to those defenses which the maker might interpose, nor, on the contrary, is his ■ liability entirely dependent upon that of the maker.</p> <p>Such indorser being a surety may set up false representations without alleging damage. . •</p>

Appeal by the plaintiff, Clara 1. Truesdell, 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 14th day of December, 1906, upon the dismissal of the complaint by direction of the '.ourfc at the close of the plaintiff’s case, upon a trial at the New York Trial Term.

Appeal by the plaintiffs, Atwood Yiolett' and others, copartners, 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 19th day of February, 1907. ’

.. Separate appeals- by the plaintiff, Francis J. Maneely, as admin- - istrator, etc., and by the défendants, the United States Fidelity and Guaranty Company 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 February, 1906, upon the decision of the court rendered after a trial at the New York Special Term. .

■ Appeal by tbe plaintiff, Adolpb Lewisohn, from a .judgment of-the Supreme Court in favor of the defendants, entered in the office of tbe clerk ;of the comity of New York on tbe 11th day of December, 1906, upon tbe decision of tbe court, rendered after a trial at tbe New York Special Term, dismissing the complaint upon tbe merits.

Appeal by the defendant, G-eorgine Campbell, 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 llth day of January, 1907, upon the decision of tile court rendered after a .trial' at the Yew York Special Term.

Appeal by the plaintiff, David Lite, 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 12th day of November, 1906, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

Appeal by the defendant, George ÍB, McClellan, from an interlocntory judgment of the Supreme Court in favor of the plaintiff, entered in the office' of the clerk of the county of Ííew York on the 12th day of .April, 1907, upon the decision of the court, ren-. dered after a trial at the New York Special' Term overruling the defendant’s amended demurrer to the complaint,

Appeal by the plaintiff, Godfrey Goldmark, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of ¡New York on the 16th day of July, 1906, upon the verdict of a jury rendered by direction of the court after a trial at the ¡New York Trial Term.

<p>Appeal by- the plaintiff, Henry L. Herbert, frqm 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 April,. 1907. .</p>

<p>Appeal by the defendant, J..Charles Walton, from a judgment of the Supreme Court in favor of the defendant Minnie A. Jacquelih,-entered in the office pf the clerk of the county of New York on the 14th day of March, 1907, upon the decision .of the .court rendered after a trial at the New York Special Term.</p>

Appeal by the plaintiff, The Mutual Life Insurance.Company of Mew York, from an interlocutory judgment of the Supreme Court in favor of the defendant,, entered in the office of the clerk of the county of Mew York on the 26th day of February, 1907, upon the decision of the court, rendered after a trial at the Mew York Special Term, sustaining the defendant’s demurrer to the complaint.

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk-of the county of New York on the 6th day of July* 1906, upon the verdict of a -jury for $7,250, and also from an order entered in said clerk’s office on the 20th day of July, 1906, denying the defendant’s motion for a new'trial made upon the minutes.

Appeal by the plaintiff, William F. Powers, 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 21st day. of November, 190.6, granting the- -defendant leave to see her children and have them in her custody,- six hours every week.

<p>Malicious prosecution—principal and agent — authority of general manager to institute criminal proceeding — probable cause shown by conviction of plaintiff.</p> <p>It is within the scope of the authority of a general manager of a business, who acts in the place of the owner, to institute legal proceedings, civil or criminal, for the protection of the owner's property.'</p> <p>The fact that a defendant sued for a malicious prosecution in causing the arrest and conviction of the plaintiff, obtained such conviction is evidence of probable cause although the conviction was subsequently reversed. And when in such action there is no proof of malice, and prima fade proof of the existence of probable cause established by the conviction of the plaintiff is not overcome by contrary evidence, a nonsuit should be granted.</p>

<p>Evidence — no presumption of survivorship where parties die in common disaster-^burden of proof — facts showing survivorship,</p> <p>There is no presumption, of survivorship when persons die in a common disaster. In the absence of satisfactory evidence the fact is assumed to be unascertainable and property rights are disposed of as if death occurred at the'same time, not because of the presumption óf simultaneous death, but because- of the absence of evidence or presumption to the contrary. ‘</p> <p>Evidence of survivorship as between husband ' and wife who perished on a burning steamship considered, and held to show survivorship in the husband.</p>

Appeal by the defendants, Henry Herrmann and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 29th day of March, 1906,'upon the verdict of a jury for .$3,500, and also from an order entered in said clerk’s office- on the 28th day of March, 1906, denying the defendants’ motion for a new trial made upon- the minutes.

Appeal by the defendant, James R. Connor, from a judgment of the County Court of Westchester county , in favor of the plaintiff, entered in the office of the clerk of said county on the 15th .• day of September, 1906, confirming the report of a referee, which determined an attorney’s lien upon a judgment, setting aside and vacating a satisfaction of the judgment, and authorizing the issuance of an execution in favor of said attorney to enforce his lien.

<p>Husband and wife—will construed in • light of anté-nuptial agreement..</p> <p>An ante-nuptial agreement provided that after marriage'the wife'should receive in lieu of dower arid claims upon her husband’s estate a specified sum of money with interest from the date of the death of the husband. The will of the husband referred to the, ante-nuptial .agreement and stated the testator’s intention “ to increase the amount to be given her,” the wife, to g larger sum, which Was to he paid “ as agreed upon between us in said anfemuptial agreement.</p> <p>On the issue as to whether the widow was entitled to interest on the increased amount from the date of the testator’s death, , •.</p> <p>Seld, that such construction should he given.</p>

Appeal by the defendant, Bertha Glass, 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 comity of Kings on the 24th day of January, 1906, upon the decision .of the court rendered after a trial at the Kings County Special Term.

<p>Appeal by the relator, Edward. Burns,-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 2éth day of December, 1906, dismissing a writ of habeas corpus and remanding the relator to custody.</p>

Appeal by the defendant, The City of ¡New York, from a judgment of the Supreme Court, in favor of the plaintiff, entered in the office of the clerk of the county of Kings oh the 3d day of April,' 1906, upon, the decision of the court rendered after a trial at the Kings County Special Term.

Ceoss-appeals by the relator, The Village of Pélham Manor, and the defendant,,the New Rochelle Water Company, from portions of an • interlocutory judgment of the Supreme Court, entered in the office of -the clerk of the county of Westchester on the 14th day of November, 1906, upon the decision of the court, rendered after a trial at the Westchester Special Term, overruling the relator’s demurrer to certain separate statements or defenses of the return to an alternative writ…

<p>Appeal by the defendant, Valentin Schmitt, 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 14th day of June, .1906, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 7th day of July, 1906, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, the New York Herald Company, a corporation, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 2d day of November, 1906, upon the decision of the court, rendered after a trial at the Westchester Special Term, overruling the demurrer to the complaint.

Appeal by tlie plaintiff, Nettie Stern, from an order of the Supreme Court, made at'tlie Westchester Special Term and entered in the office of the clerk of the county, of Westchester'on the 19th day of December, 1906, denying the plaintiff’s motion to compel the defendant Kimmerle to separately state and number, his defenses.

Appeal by the defendants, James Preston- 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 Westchester.- on- the- 7th day of October, 190o, upon the decision of the court rendered after a trial at the Westchester,. Special Term. The action was to foreclose, a mortgage-.on real estate. Bridget -Booker died November 21st, 1897.

Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure. The plaintiffs ask for the specific performance by the defendant of his contract of purchase of a lot of land.

Appeal .by the plaintiff, Maynard H. Clement, as State Commissioner of Excise of the State of New York, from an order of the Supreme Court, made at-the Westchester-Trial Term and entered in the office of the clerk of the county of Westchester on the 22d day of January, 1907. Action l)3 the State Commissioner of Excise againgt the holder of •_ a liquor tax'certificate and his surety for a penalty for a violation of the Liquor Tax Law (Laws of 1896, chap.' 112, as amd.).

<p>Beargdment of an appeal by the defendant, The Brooklyn . Heights Bailroad Company, from; a judgment of the Supreme Court in favor of the' plaintiff, entered in the office of 'the clerk of the county of Kings on the 16th day of December, 1905, upon the ver- ■ diet of a jury for $10,000, and also from an order entered in said clerk’s office on the 14th day of December, 1905, denying the defendant’s motion for a new trial made upon the minutes.</p>

• Appeal by the Germania Beal Estate and Improvement Company from an .order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 14th day of February, 1907, denying the appellant’s motion to vacate an order made at the Kings County Special Term and entered in said clerk’s office on the 2d day of February, 1907, extending until March 1, 1907, the time' to serve and file printed papers on the appeal…

Appeal by Duncan .MeGibbon and others from a decree of the Surrogate’s Court of the county of Bichmorid, entered in said Sur-' rogate’s Court on the 31st day of August, 1905, vacating a prior decree which was entered on the 21st day of June, 1899.

Appeal by the defendant, The Bew York Life Insurance Com-. pany, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of. the county of Westchester on the 2d day of April, 1906, upon the verdict of a jury, and. also from an order entered in said clerk’s office on the 2d day of April, 1906, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Boy M. Hunton, an infant,, by pora E. Hunton, his. guardian ad litem, from a- judgment of the County Court of Westchester county in favor of tlie defendant, entered, in the office of the clerk of said county on the 21st day of April,-1906, Upon the decision of the court -sustaining the defendant’s demurrer to the complaint. , ■ •

Appeal by Edward Gr. Riggs and another, as receivers, etc., from so much of an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 13th day of- February, 1907, resettling a prior order,' as allows inquiry as to the acts and transactions off the receivers and their attorneys in ancillary jurisdictions, in so far as relates to the nature, kind and value . of the services rendered-and performed,…

Appeal, by- the plaintiff-, Leonard Jacob, from an order of. the Supreme Court, made at the Kings County Special Term and entered in the office of the .clerk of the county of Nassau On the 7tlr day of March, 1907, denying the plaintiff’s motion to change the place of'trial-of the action..

Appeal by the defendant, James L. Sullivan, 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 21st day of January, 1907,' denying the defendant’s motion to change the place of trial of the action.

Appeal by Peter Lesser, as administrator, etc., of Huldah Lesser, deceased, from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 2d day of Hovember, 1906.

<p>Will — rights of devisee when deed of lands delivered after death of testatrix.</p> <p>A testatrix, having devised certain lands, entered into an executory contract to sell and placed the deed in escrow to be delivered on the payment of the consideration by the vendee. The vendor died and later on the same day the vendee paid the consideration and received the deed.</p> <p>Held, that the devisee of the lands' was entitled to the consideration paid by the vendee as against the legatee of the personal property.</p>

Appeal by the defendant, The Brooklyn Heights Railroad Company, from an order of the Supreme Court, made, at the Kings County Special Term and entered in the office of the clerk' of the . county of Kings on the 13th day of February, 1907, denying the defendant’s motion to vacate a prior order'for the examination before trial of the secretary of the defendant, and for the inspection of specified papers of the corporation.

<p>Appeal by the-plaintiff, John Larkin, from, an order of the Municipal Court of the city of New York, borough of Brooklyn* rendered on the 11th day of September, 1906.</p>

Appeal by the plaintiff, Julius Krainin, from ah order of the'' Supreme Court, made at the Kings County Special Term and! entered in the office of the clerk of the county of Kings on the 19th day of February, 1907, granting the defendant’s motion to' cancel a Us pendens.

Appeal by the plaintiff, Angusta M. Vogt, -from two judgments of the Supreme Court in favor of the defendants, entered in the office ■ of the clerk of the county, of Kings 'On the 29th day of November, 1905, and on the 2d day of.

<p>Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the. Municipal Court of the city of -New York, borough of Brooklyn, rendered on the 17th day of July, 1906., '</p>

Appeal by the defendants, Bridget Mullin .and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Queens.on the 16th day of August, 1906, upon the decision of the court, rendered after a trial at the Queens County Special Term, overruling the defendants’ demurrers to the amended complaint. ■

. Appeal by the defendant, Aaron .Clough, from an order of the County Court of Oneida county, entered in the office of the clerk ' of said county on the 15th day of October, 1906, in summary proceedings to recover the possession of real property under section 2231 et seq. of the Code of Civil Procedure, with notice of an intention to bring up for review upon such appeal an order bearing date the 10th day of October, 1906, arid entered in said clerk’s office, denying the…

<p>Negligence — when decision of Court of Appeals on first appeal control- - ling on appeal from second trial — injury to employee of railroad hoeing ashes from locomotive — failure to promulgate written rules.</p> <p>When the Court of Appeals, on granting a new trial, lias determined that a'plaintiff has established a cause of action for negligence and he proves the same facts on the new trial, the decision is binding upon the Appellate Division unless "the evidence introduced by the defendant establishes ■ a defense as a matter of law or is of such character as to make the verdict of the jury contrary to the weight of evidence.</p> <p>The liability of a railroad for failing to promulgate written rules safeguarding employees, engaged in hoeing ashes from" the fire box of locomotives is not changed by reason of the fact that an engine dispatcher testified that he was accustomed to give verbal instructions.</p> <p>Verdict of $8,750 for the loss of a leg between the foot and knee is not excessive.</p> <p>‘Williams, J.,.dissented. ■.</p>

<p>Vendor and purchaser — specific performance — judgment against prior owner subsequent to conveyance no cloud on title — when no presump- . tion that grantor had wife. ‘</p> <p>The. vendor of lands who has contracted to ,give. á good and satisfactory title, to . be shown by a search, may enforce specific performance, although it appears that a judgment, was entered against a prior owner subsequent to his -deed of conveyance, especially when the judgment has been discharged in bankruptcy. An unrecorded deed takes precedence over a subsequent judgment.</p> <p>The fact' that a prior grantor had a wife in 1899 raises no presumption that he had a- wife two. years before, at which time he conveyed, and a subsequent •vendee is not.entitled to refuse title on the ground that..the wife did not join in the deed,, and especially so.when the vendor offers her quitclaim, deed subsequently obtained. ■</p> <p>Williams, J., dissented;</p>

Motion by the plaintiff, Albert P. Fowler, as receiver, etc'., for a new trial upon a case containing exceptions,..ordered to be heard, at the Appellate Division in the first instance, the.-court having directed a verdict in defendant’s favor of “No cause of action,” at a Trial Term of the Supreme Court held in and for the county of Onondaga in October, 1906.

. ■ Appeal by the defendant, Josiah E. Títsworth, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the cleric of the county of Allegany on the 2d day of J uly, 1906, apon the verdict of a jury rendered by direction of the court, and also (as stated in the notice of appeal) from an order entered in said clerk’s office on the 2d day of July, 1906, denying said defendant’s motion for a new.trial made upon the minutes. , . • ..

Appeal by the defendant, William. J. Weed, from an interlocutory judgment of the Supreme Court in favor of the plaintiff,, entered in the office of the cleric of the county of Livingston on the 29th day of January, 1907, upon the. decision of the.court, rendered after a trial at the Monroe Special Term, overruling the defendant’s demurrer to the complaint.

Appeal, by the plaintiff, Maggie Kenyon, by her guardian ad litem, Daniel W. Cahill, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Jefferson on the 15th dayuf January, 1906, upon the verdiet of a jury rendered after a trial at the Jefferson Trial Term, dismissing the complaint upon the merits, and also from an order entered in said clerk’s office on the 22d> day of January, 1906, denying the plaintiff’s…

Appeal by'the plaintiff, John R. Williams, as receiver, etc., from a judgment of the Supreme Court in favor of the defendant, entered in'the office of the clerk .of the county of Erie on the 10th day of April, 1906, upon a nonsuit directed by the court upon a trial at the Erie' Trial Term, and. also from an order entered in said clerk’s office on the 10th .day of April, 1906, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Henry IT. Lansing, from a judgment of the Supreme Court in fa vor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 24th day of September, 1906, upon the report .of a referee.</p>

Appeal by the plaintiff, Albert J. Winter, from a judgment of the Supreme Court in favor of the defendant, entered- in the office of the clerk of the county of Niagara on the 11th day of October, 1906, upon the decision of the court, rendered after a trial at the Erie -Special Term, sustaining the defendant’s demurrer to the complaint.

. Appeal by the. plaintiff, George P. Tisdale, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk óf the county of Erie on the 28th day of Bovember, 190'6, upon the decision of the court rendered after a trial at the Erie Special Term dismissing the complaint.

Appeal by the plaintiff, Mathan J. Packard, from a judgment of the County Court of Onondaga county in favor of the defendants, entered in the office of the clerk of said county on the 12th day of July, 1906, reversing a judgment, of the Municipal Court of the . city of Syracuse. ■

Appeal by the plaintiff, William Ervin,, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of-Herkimer on the 24tli day of December, 1906, upon the dismissal of the complaint by direction of the court, at the close of the plaintiff’-s cáse, upon a trial at the Herkimer Trial Term.

Motion by the plaintiff, Nicholas J. Scheer, for a new trial upon á case containing exceptions, ordered to be heard at the- Appellate Division in the first instance upon a -nonsuit granted by the court upon a trial at the Wyoming Trial Term. ,

Appeal by the defendant, the Americaii Telephone and Telegraph Company, from a judgment of the. Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chautauqua on the 22d day of September, 1906, upon the decision of the court rendered after a trial at the Chautauqua Special Term.

Appealby tlie- 'defendant, Jacob M. Anthony, 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 19th day of April, 1906, upon the verdict of a. jury; also from an order. bearing date the 18th day of April, 1906, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes, and also from an order entered-in said clerk’s office on the 3d day of…

Appeal by the defendant, the Ketsof Alining Company, from an order of the Supreme Court, made at the Livingston Trial Term and entered in the office of the clerk of the county of Livingston on the 1st day of February, 1906, denying the defendant’s motion for a new trial made upon the minutes, after a verdict in favor of the plaintiff for $4,500.

Appeal by the petitioner, Maynard H. Clement, as State Commissioner of Excise, from an order of the Supreme Court, made at , the Erie Special Term and entered in the office of the clerk of the county of Erie on the 8th day of June, 1906, denying his motion for an order revoking liquor tax certificate Ho. 14,648 .thereto- . fore issued to the respondent and dismissing the above-entitled proceedings. ; •

.Appeal by William Gf. Tracy and Augustus T. Armstrong, as receivers, etc., from a judgment of the Supreme Court in favor of Fred B. Crownhart, the plaintiff in -actions Nos. 1 and 2, and one of the defendants in action No. 3, entered in the office of the cleric of the county of Onondaga on the 1st day of October, 1906, upon the 'report of a referee.

Appeal by the defendant, The New York Oehtral. and Hudson Eiver Bailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of. the clerk of the county of Herkimer on the lltli day of April, 19-06, upon the -verdict of a. jury for. $2,000, and also from an order entered in said clerk’s office on the 23d day of April, 1906, denying the defendant’s -motion-for a new trial'made upon the minutes.

Appeal by the defendant, The Mutual Benefit Life Insurance Company, from an order of the Supreme Court, made at the Erie-Special Term and entered in the office of the clerk of the county of Erie on the 26th day of October, 1906, denying the said defendant's motion to vacate an order theretofore entered directing service of the summons herein upon certain defendants by publication.

Appeal by the plaintiff, Sarah A. Perry, from an order of the County Court of Miagara county, entered in the office of. the clerk of said county on the 24th day of November, 1906, setting aside the verdict of a' jury in favor of the plaintiff and. granting the defendant’s motion for a new trial made upon the minutes. The action was for the defendant’s board and lodging and for the stabling of his team of horses.

Appeal by the defendant, The Prudential Insurance Company of America, from a judgment of the Supreme Court in favor of. the. plaintiff, entered in the office of the clerk of the county of Erie on the 30th day of November 1906, upon the-verdict of a jury rendered by direction of the court, and also front an order entered in .' said clerk’s office on the 'Tth day of December, 1906, denying the • defendant’s motion for a new,trial. - ;

Appeal by the plaintiff, Jennie C. Sutphen, from a judgment of the County Court of ¡Niagara county in' favor of the defendant, entered in the office of the clerk of said county on the 10th day of December,. 1906, reversing a judgment of the Justice’s Court of the city of Lockport. ' . ;

<p>Appeal by the plaintiff,. Catherine Griffin, as administratrix, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of -Chenango on the 26th day of September, 1905,. upon tiie dismissal of the complaint by direction of the court after a trial at the Chenango Trial Term, and also from an order entered in said cleric’s office on the 12th day of October, 1903, denying the plaintiffs motion, for a new trial made upon the minutes.</p> <p>The action is to recover damages for death of plaintiffs intestate, claimed to have been caused by the negligence of defendant.</p> <p>The Delaware, Lackawanna and Western railroad passes through the village of Norwich and across Rexford street in said village in a northerly and southerly direction. Plaintiff’s intestate was a flagman at said street. IT pon the 1st day of August, 1901$ he was struck by the. defendant’s horse, which was being driven by the defendant across the said crossing, and was injured and thereafter died from the said injuries. At the trial the plaintiff was nonsuited Froth ¿he judgment entered upon this order of nonsuit and from • the order denying the plaintiff’s motion for a new trial this appeal . has been taken. " ’ .</p>

<p>. Negligence — injury to passenger in box car by slipping of strut used to push, car from, switch—use of such- strut not gross negligence — release of claims for damage in consideration of free transportation — gross negligence defined.</p> <p>The not uncommon practice of pushing a car from a switch by placing a tie or strut between the engine and the bumpers of the car is not gross negligence, and a plaintiff who accompanied horses in a box car and has released the railroad from claims for personal damage in consideration of free transportation is not entitled to recover for injuries received by the slipping of the tie which was used to push the car. '</p> <p>Gross negligence means something more than ordinary mistake of judgment, and must refer either to a willful or reckless disregard either of right, property dr life,</p>

Appeal by the plaintiff, Le-wis E. Wynkoop, from an order of the Supreme Court, made at the Orange Special Term and entered in the office of the'clerk Of the county of Ulster on the lStli day of September, 1906, dénying the plaintiff’s motion for a reference.

Appeal by the defendant, the Fonda, ^Johnstown and Gloversville 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 Montgomery on the 10th day of October, 1906, upon the decision . .of the court rendered after a trial at the Montgomery Tidal Term, a jury having been waived.

Appeal by the defendant, The Continental Insurance Company, from a judgment of the Supreme Court in favor ,of the plaintiff, entered in the office of the clerk of the county of Sullivan on the.24th day of September; 1906, upon the verdict of a jury, and also from two orders bearing date the 19th day of September, 1906, and entered in said' clerk’s office, one denying the defendant’s motion for a new trial made upon the minutes, and the other granting the plaintiff an extra…

Appeal by the plaintiff, Chloe A. Edwards, from-a judgmeht.of the Supreme Court in favor of. the defendant, entered in tlié office of the clerk of the county of Broome on the -28th day of December, 1906, ripon the decision of the court rendered after a trial at the Broome Trial Term, the jury having been discharged-, dismissing the complaint upon the merits. '' :

<p>Foreclosure —pleading—counterclaim for injury done to land by mortgagee — duty of defendant executors on foreclosure. .</p> <p>It is the duty of executors to preserve.an estate and defend it against unjust claims. Thus, when a mortgagee seeks to take from the estate property which . would be a valid asset for the payment .of its debts, if any, it is the duty of the representative to defend title to the property and to urge any counterclaim existing against the mortgagee which was available to the decedent in his lifetime. •</p> <p>On the foreclosure of a mortgage fuade by a testator, his representatives, may counterclaim for injury done to the lands by the mortgagee by flooding the same with waters from a dam, whereby the value was reduced. Such fact, if true, is available to diminish or defeat the plaintiff’s claim and is connected with the subject-matter of the action.</p>

Appeal by the .defendants, George G. Reynolds and others, from an order of the' Supreme Court, made at the Schuyler Special Term andentered in the office of the clerk of the county of Schuyler on •the 19tliday of December, 1906, referring the above-entitled action toa referee designated by said order.

<p>Evidence—forgery — evidence of concurrent forgery admissible.</p> <p>When in an action by the beneficiary of a life insurance policy it is contended by the plaintiff that an assignment by the beneficiaries of that policy was forged, as was also an assignment of. another policy, evidence that the beneficiaries .did not sign either of the assignments is admissible when there is evidence showing that the forged assignments had the same origin and that each forgery was committed in aid of the other and was part of a scheme which resulted in a transfer of the policy in suit. * r</p> <p>Smith, P. J., and Cochrane, J., dissented.</p>

Appeal by the defendant,Frederick L. Avery, from an order of the Supreme Court, made at the Fulton Special Term and entered in the office of the clerk of the county of Fulton on the 2d day of January, 1907, denying the defendant’s motion to vacate a warrant of attachment ‘theretofore granted herein.

Appeal by the defendant, 'Thomas O. Luther, 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 22d day. of October, 1906, upon the 'verdict of a jury, and also from an order entered in . said clerk’s office on'the 16th day of November, 1906, denying' the defendant’s motion for a new trial made upon the minutes.

Appeal by tlié defendant, George E, Munroe, from a judgment of the Albany County Court, rendered on the'11th day of December, ,1906, convicting him of -the Crime of. robbery in the first degree.

<p>Appeal by the plaintiff, Theodore A. Clextón, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of' Saratoga oh the 5th day of December, 1906, pursuant to an order made-.at the Saratoga Special Term and entered in said clerk’s office on' the 5th day of December, 1906, dismissing the complaint, with notice of an intention to-bring up for review upon sucli appeal .the said . order dismissing the complaint. . , .</p> <p>In the complaint is alleged in substance that the plaintiff, on the ,10th day of 'May, 1905, entered into an agreement in writing with the .defendant by which the plaintiff agreed to .sell certain lands . therein described to the defendant upon the terms stated in the complaint, and to. deliver to the' defendant a good and sufficient warranty deed for the conveying to her of the said premises; that the said defendant, on the execution of said agreement;, paid to plaintiff the sum of $100 in aqcordance therewith ; that the plaintiff has always befen and still is .ready and willing to perform the skid agreement on his part, and that he thereafter did tender to the -defendant a deed of said premises pursuant to the terms of said agreement and demanded the payment of the balance of the consideration therefor from the defendant, and she then refused,.and ever , since has refused to perform. At the opening of the trial the defend- . ant moved to dismiss the. complaint for insufficiency. Mo evidence • was taken. There appear in the record two papers, one the contract'' upon which apparently the action was brought, and the other, the will under which the title of this property rested at the time of the contract and at the time of the trial. This contract was made between “ Theodore A-Clexton, of Troy, Pfensselaer County, State of. Mew York, Executor of the est.ate-of the late Emeline Lamb of Waterford, Saratoga County, of .the first part, and Mrs. Thomas- Tunnard, of the Village of Waterford, County of Saratoga and State of Mew York, of the second part, in the manner following,” etc. Thereafter follows ■ the' contract upon which the com-plaint is based, which is.signed, “*T. . A. Clexton,- Éx. (L. S.),- Mrs. Tlios. Tunnard (L. S.);” The will of Etnel'ine Lamb purports, after certain legacies, to give -all of the , ■ rest and residue of the 'testatrix’s property to Mary A. Clexton, and 'nominates Theodore A. Clexton, this plaintiff, as her sole executor. It appears by the Complaint that Mary A. Clexton was the wife of the executor, and in the will there is no power of sale given to .the executor. In the reply the plaintiff admits that lie does not have ■ the title to the property wliichhe had agreed, under the contract, to ■ -convey. The court upon the facts and upon the pleadings dis-. missed the complaint, and from the judgment entered thereupon ■ this appeal is taken. ' ■</p>

Appeal-by the defendants, John B. Keefe and others, as assessors, - etc., from an order of the Supreme Court, made ht the SaratogaSpecial Term and entered in the office of the clerk of the county of ■ Warren on the 8th day of December, 190.6, reducing an assessment • upon the relators’ property. Order unanimously' affirmed, with costs, upon opinion of McLaughlin, J.,. at Special Term.

<p>Will construed—devise restricting sale before majority of devisee—» partition barred by restriction.</p> <p>An absolute devise of a house and lot to the children of the testatrix with a pro- • vision that they shall use and enjoy the house and premises until the youngest child shall have reached his majority, alt- which time either child may purchase the interest of the other if ho desires, prevents the, sale of the lands before the youngest child reaches his majority, "and they cannot be partitioned until that time. '</p> <p>Such construction will be given, although the absolute devise and the restriction thereon are expressed in separate paragraphs, for the latter provision, including no words of disposition,- should be construed as part of the preceding paragraph.</p>

Appeal by the defendant, Giovanni Bonifacio, from a judgment of the Supreme Court, rendered on the 16th day of November, 1904, at the Montgomery Trial Term, convicting him of the crime of,murder in the second degree, and also from an order entered in the office of the clerk of the county of Montgomery on the 9th day of November, 1905, denying the defendant’s motion for a héw ' trial made upon the minutes. -

Submission of a controversy upon an agreed statement of facts pursuant to section 12.79 of the Code of Civil Procedure.

Appeal by the defendant, Salem Twist,'from an order of the County Court of Tompkins county, entered in the office-of -the clerk of said county on the 28th day of October, 1903, relieving the plaintiff from a stipulation made oraHy upon a former trial of the action. '

<p>Mechanic’s lien — costs discretionary—when owner not chargeable with costs.</p> <p>By virtue of section 3411 of the Code of Civil Procedure, costs are discretionary in an action to foreclose a mechanic’s lien, and a referee may award costs in favor of lienors payable from a sum due from, the owner to a defaulting con- • - tractor. When an owner' who completes a contract tin- the default of the contractor admits his liability for the amount due the defaulting contractor, and makes no defense, he should not personally he charged with costs.</p> <p>When a defendant lienor takes no active part in the action, save to prove his lien or to observe some other formality, he should not be awarded costs.</p>

<p>Mechanic’s lien — complaint alleging performance — judgment on quan- . turn meruit not authorized.</p> <p>When the plaintiff in an action to foreclose a mechanic’s lien alleges and proves an entire contract under which, payment is not due until performance, and failure of substantial performance is found as a fact, the court cannot direct a personal judgment against the. defendant on a quantum meruit.</p>

<p>Receiver—judicial sale —resale denied.</p> <p>Inadequacy of price is not a sufficient reason for a refusal to confirm a j udicial • sale.. '</p> <p>'When a judicial sale by a receiver is fairly made in full compliance with the directions of the court and "on personal notice to all creditors who have presented claims, a resale should not be ordered on the application of the receiver merely because an alleged creditor, who had not presented his claim, claims to have mistaken the day of sale and to be willing to bid á larger sum.</p> <p>The receiver is not entitled to an order of resale on the ground of a mistake of another party, for relief from mistake, is granted only to the mistaken party.</p>

Appeal by the'defendant, Fred Stacy, from a judgment of . the County Court of .Franklin county, rendered on the 25th- day of June, 1906, convicting him. of the crime of manslaughter in the first degree.

Appeal by the relator, Charles T. Barney, from an order of the Supreme- Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the -23d day of February, 1907, denying the relator’s motion for a peremptory writ of mandamus.,'

Appeal by the plaintiff, Willard Peck, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Greene on the 10th day of October, 1905, upon the decision of the court, rendered after a trial at the Columbia Special Term, sustaining the defendant’s demurrer to the complaint on the ground' that it does not state facts sufficient to constitute a cause of action.

Appeal by the plaintiff, Myer Nussbaum, from a judgment of the .Court of Claims of the State of New York in favor of the defendant, entered in the office of the clerk of the said court on the 28th day of January, 1907, dismissing the plaintiff’s claim.

<p>Executors and administrators — when commissions of deceased administratrix should, be determined — correction of errors in inventory-of deceased administratrix — rejection of claim waived by administrator de bonis non—when claims not barred by Statute of Limitations.— property owned jointly not set off for widow.</p> <p>The commissions of a deceased administratrix should be determined on an accounting brought by her executor to ascertain the liability of her estate to the estate for which she acted and should not be allowed on the accounting of . an administrator'^ bonis non thereafter appointed. When a mortgage had been erroneously inventoried by a deceased administratrix, the error may be corrected in the accounting of a subsequent administrator de bonis non without requiring the fornialities of proof of a claim against the estate.</p> <p>Where an administrator de bonis.non before the short Statute-of Limitations has run admits the validity of a claim which was rejected by a former administratrix, the claim is not barred by the subsequent expiration of - the . short statute; for it is presumed that the claimant refrained from suit relying upon the acceptance of the claim and the withdrawal of the prior rejection.</p> <p>A part payment on a joint note made by one Of the makers-at the-request of and in the presence of- the other, from their joint moneys istops. the running of the six years’ Statute of Limitations.</p> <p>Property. which is jointly o.w-ned hy a decedent and another cannot be set off as exempt articles to the widow of the decedent.</p>

Appeal by the defendant, the Southern Tier Masonic Belief Association, from an order of the Supreme .Court, made' at the BrOome Special Term and entered in the office of the -clerk' of the county of Chemung on the 9th day of’January, 1907, denying the defendapt’s motion .to vacaté an order for - the' examination of J. Maxwell Beers, the secretary of the defendant, before trial.

Appeal by the defendant, George W. Maney, from so much of an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Sullivan on the 14th day of April, 1906, upon the decision of the court rendered at the Orange' Special Term, a special verdict, having been rendered by a jury after a trial at the-Sullivan Trial Term, as directs-the payment of alimony by the defendant and requires him to give security therefor.

Appeal by the plaintiff, Annie Butler, from a judgment of the ..

Appeal by the defendant, Henry J. Wolfe, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Greene-on the 17th day of November, 1906, upon the verdict of a jury rendered by direction of the court after a trial at the Greene Trial Term. The complaint is in form for two causes of action in substance as follows: First.

. Appeal by the petitioner, Edward S'. Cooper, from an order made by the county judge of Tioga county and entered in the office of the clerk of the county of Tioga on the 8th day of April, 1907, denying the petitioner’s application for an investigation as to the mental condition of Elias S. Cooper, under the assumed name of Frank Ellison Brooks; an alleged insane person.

- Appeal by John ■ J. Gallogly and anothér, as executors, etc.., from'a decree of the Surrogate’s Courtof the county, of Densselaer, entered in the said Surrogate’s Court on the 16th day of October, 1906, directing them to pay certain claims of Mary M. De Forest, individually and as guardian of Eleanor E. De Forest, an infant.

Appeal by the defendant, William- Lester,-from a judgment of the Supreme Court in. favor of the plaintiff, entered in the office of . the .clerk of the county of Albany on the 3d day of October, 1905, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 25th day of October, 1905, denying the defendant’s motion for a new trial made upon the minutes.

<p>Tax — certiorari — writ not quashed because whole assessment roll invalid.</p> <p>The right of a taxpayer to review an assessment by certiorari is absolute and not a matter of discretion, and he may show that the assessment is invalid for any reason.</p> <p>It is no answer to the writ for the assessors to allege that the facts alleged in the petition show that the whole roll was void. It is immaterial that in destroying an assessment' against" himself the relator destroys it als<3 against others • and even as against all persons assessed, and assessors will not .be heard to say •that they acted.s'o"illegally that there was not enough of their acts to justify a review. ■ .</p>

Appeal by the defendant, George D. Krumbhaar, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the. clerk of the county of Madison on the 18th day of July, 1905, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 4th day of August, 1905, denying the defendant’s motion for a new trial made upon the minutes,

<p>.. -Appeal by-the defendants, Peter F.. Collier and another, from an order of the Supreme Court, made at the Saratoga Special Term and entered in the office of the clerk of the county'of Schenectady On the 30th day of October, 1906, striking out the llth, 12th and 13th paragraphs of the defendants’ answer as irrelevant and redundant.</p>

■ Appeal by tbe plaintiff, Harry S. Gordon, from a judgment of the County Court of Ulster county in favor of the defendant; entered in •the office of the clerk of said county on the. 17th day of October, 1905, upon the dismissal of the complaint by direction of the court.

<p>Railroad.—public convenience and necessity for extension of street' railway—ownership of right of way immaterial — when street not part of park system. .</p> <p>In determining as to the public convenience and necessity for the extension of a. railroad the commissioners may take into consideration all of the circumstances, the probable growth and convenience of the population, and the fact that there is a territory lying beyond which at an early day must be accommodated. It is immaterial whether or hot the petitioner actually owns a right of way over a small portion of' the proposed extension.</p> <p>- Although city authorities improved a street as an approach to a park, the street docs not thereby become a part of the park system and exempt -from condemnation for street railway purposes.</p>

Appeal by the plaintiff, Catharine de Wolf, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 16th day of November, 1906, upon the dismissal of the complaint by direction of the court, on the opening, at the New York Trial Term.

Appeal by the defendant, Jacques Schnaier, from an order of the Supreme Court, made at the Eew York Special. Term and entered in the office of the clerk of the county of Yew York on the 30th day of April,. 1907, granting an injunction pendente lite restraining the defendant from subletting certain premises.

<p>Appeal by Nicholas J. Hayes, as sheriff, 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 3d day of December, 1906, in éffect denying his motion to require the defendant Gould to pay the sheriff’s fees for the service and executiqn of an attachment, and also from an order entered in said clerk’s office on the 20th day of-December, 1906, denying a motion for a reargument.</p>

Appeal by the defendants, Stephen R. Severance 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 9th day of January, 1906, upon the verdict of-a jury, and also from an order entered in said clerk’s office on the 26th day of February, 1906, denying the defendants’ motion for a new trial made upon the minutes. •

Appeal by the defendant, Jacob Blum, as administrator, 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 11th 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 Octoher, 1906,¡denying the defendant’s motion for anew trial made upon the minutes. •

Appeal by George Ehret and others, holders of class “ W” stock in the New York Building-Loan Banking 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 6th day of September, 1906, confirming the ninth interlocutory report of a referee appointed to take and state the accounts of the receiver herein.

<p>Appeal by the relator, the Consolidated Telegraph and Electrical Subway Company, 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 9th day of July, 1906, denying the relator’s motion for a peremptory writ of mandamus.</p>

Appeal by the defendant, the William Eadam Microbe Killer Company, from an order of the Supreme Court, mdde at the New York Special Term and entered in .the office of the. clerk of the ■ county of New York on the 7th day of ..January, 1907, resettling .a prior order and denying the defendant’s motion to compel the plaintiff to give security for costs.

•Appeal.by the defendant, Peter Markowitz, from a judgment of the Court of Special Sessions in and for the'city of New York, first division, Children’s Part, rendered oft the 15th day of December, 1906. ....

■ Appeal by fhe plaintiffs, Margaret E. Ungrich and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the .county of New York on the 9th 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, and adjudging the' defendants to he entitled to recover.the amount of their counterclaim.

<p>Practice — amendment of answer granted.</p> <p>A defendant on the substitution of attorneys should be allowed to amend his answer so as to show that the contract sued upon had been waived by the plaintiff, unless the amendment will work prejudice to the' adverse party, or the trial be delayed.</p> <p>As a general rule a party to an action ought to be permitted'to put his pleading in such shape as will enable him to raise and have determined at/the trial every question affecting his interest in the subject-matter of the litigation. Clarke, J., dissented.</p>

■ Appeal by Harry Tobenltin 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 29tli day of April, 1907, resettling a' prior order which modified hn order entered in •said clerk’s office on the 20'th day of March, 1907,; permitting the. appelant.to sue the respondent and which stayed proceedings in . réplevin. and restricted the said appellant to an action in equity.

Appeal by the plaintiff, Philip Snffin, 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' 18th day of September, 1906, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint.

Appeal by the defendant from a judgment of the Supreme Court, enteredin the clerk’s office of the county of New York on the 10th day of July, 1906, in favor of the plaintiff and against the defendant, on- the verdict of a jury, and from an order 'entered in said cleric’s office on the 9th day of July, 1906, denying the defendant’s motion for anew trial..'

<p>Appeals by the defendants from orders granting temporary injunctions.</p>

<p>Appeal from order denying motion for preference.</p>

Submission of a controversy upon an agreed statement of facts, 'pursuant to section 1279 of the Code of Civil Procedure. Judgment .ordered for defendant, with.costs, on the authority of Barber Asphalt Paving Co. v. Willcox (90 App. Div. 245). Settle order on, notice. Present — Patterson, P.' J.,'Ingraham, Laughlin, Clarke and Scott, JJ. Scott, J., concurred in á memorandum; Ingraham and Clarke, JJ., dissented.

<p>Beal properly — specific performance —failure to establish defense that party■ wall is on adjoining land without authority.</p>

<p>Appeal from a judgment dismissing the complaint.</p>

<p>Appeal from an order requiring the defendants to serve a bill Of particulars.</p>

Justice Greenbaum, requiring the defendant Gibson to be examined before trial, and in addition thereto limiting the scope of the examination.

<p>- Practice — examination before trial-— order for .open commission granted upon ' terms. '</p>

<p>Highway • — award by municipality "to-abutting owner for damage ip a private easement because of the discontinuance of a public road over the servient land. '</p>

further consideration. ' . , Order affirmed, with costs and disbursements, om the opinion of the surrogate. Present — Patterson, P. J., Ingraham, McLaughlin, Clarke and Lambert,. JJ.

Appeal by the plaintiS from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the- county of Oneida on the 17th day of April, 1905, upon the decision of - the. court, rendered after a trial at the Oneida Special Term, vacating and setting aside, as modified, an injunction . theretofore granted, and dismissing the plaintiff’s complaint upon the merits.

Appeal by the relator from an order of the: Supreme Court, made at the Brie . Special Term and entered in the office of the clerk of the county of Niagara on the 13th day of January,. 1907, denying the relator’s application for a peremptory writ'of mandamus.

<p>This is an appeal by the plaintiff from a judgment in favor of the defendant, rendered upon a nonsuit upon trial before the court and jury.</p>

Appeal by the'defendants, Gracie Ellsworth Slater and another, from án interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office óf the clerk of Ulster county on the 20th day of December, 1906, upon the decision of the court overruling the defendants' demurrers- to the complaint.

Appeal by the defendant, William D. Hoolihan, from a judgment of the Supreme Court in favor of the plaintiff, enteréd in Delaware county clerk’s office on the 3d day of March, 1906, upon the verdict of a jury, and from an order entered in said clerk’s office denying the defendant’s motion for a new trial.