Volume 12 — New York Appellate Division Reports

Appeal by the defendants, Gershom Wiborn 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 Monroe on the 18th day of December, 1895, upon the verdict of a jury rendered after a trial at the Monroe Circuit; also from an order, entered in said clerk’s office on the 18th day of December, 1895, denying the defendants’ motion for a new trial made upon the minutes, and also from an order made at the…

Appeal by the plaintiff, Tyndale Palmer,, from a judgment of , the ■ Supreme Court in favor- of the plaintiff, entered in the office of the clerk of the county of Oneida on the 20th'day of March, 1896, upon the verdict of a jury for twenty-five dollars, rendered after a trial at a Trial Term of the Supreme Court held in and for the county of Oneida, and also from an order entered in said clerk’s office on the 5th day of March, 1896, denying the plaintiff’s motion for a new…

Appeal by the plaintiff, Charles Leet, from a judgment of the-Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Allegany on the 8th day of February* 1896, upon the decision of the court rendered after a trial at theAllegany Special Term dismissing the complaint upon the merits* without costs to either party, certain issues of fact having theretofore been submitted to and determined by a jury.

Appeal by the defendant, Robert O’N eill, from a judgment of the Superior Court of the city of Buffalo in favor of the plaintiff, entered in the office of the clerk of said court on the 27th day of December, 1895, upon the decision of the court rendered after a trial before the court without a jury.

Appeal by the defendant, Peter Heifer, from a judgment of the County Court of the county of Monroe in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 31st day of July, 1896, affirming a judgment of the Municipal Court of the city of Rochester.

Appeal by the defendant, The Grand Trunk Railway Company of Canada, 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 September, 1896, denying its motion for a resettlement and correction of the judgment entered in the action.

Motion by the defendant, Henry D. Leslie, as receiver of The “Casey Machine and Supply Company, for a new trial on a case containing exceptions, ordered to be heard by the Appellate Division in the first instance upon the verdict of a jury in favor of the plaintiff rendered after a trial at a Trial Term of the Supreme Court field in and for the county of.

Appeal by the defendant, The Eagle Fire Company, from a judgment of the Supreme'Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 22d day of April, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme Court held in and for the county of Monroe, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 22d day of April, 1896, denying the…

Appeal by the defendants, the Wellsville, Coudersport and Pine Creek .Railroad Company and others, from so much of an order of the Supreme Court, made at the Chemung Special Term and' entered in the office of the clerk of the county of Allegany on' the 24th day of August, 1896,. as enjoins and restrains tire defendants, the Wellsville, Coudersport and Pine Creek Railroad Company, the Buffalo and Susquehanna Railroad Company, and. their and each of their officers, agents,…

Appeal by the defendant, the Syracuse Specialty Manufacturing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 21st day of March, 1896, upon the verdict of a jury for $1,750 rendered after a trial at a Trial Term of the Supreme Court held in and for the county of Onondaga, and also from an order entered in said clerk’s office on the 16th day of March, 1896, denying the defendant’s…

Appeal by the defendant, Melissa Corwin, from an order of the County Court of the county of Monroe, entered in the office of the cleric of the county of Monroe on the Utli day of June, 1896, denying her motion to set aside an order in'supplementary proceedings and to vacate a judgment of the County Court of Monroe county on the ground that the court below (the Municipal Court of the city of Rochester) never acquired jurisdiction of the action.

Appeal by the plaintiff, John W. Windecker, from a judgment of the Supreme Court, entered in the office' of the clerk of the county of Herkimer on the 10th day of January, 1896, upon the decision of the court rendered after a trial at the Oneida Special Term.

<p> Alimony —inducing a husband ordered to pay it to leave the State —right of action-in the wife therefor. </p> <p>Where a mother,■ who knows- that her son has been ordered by -the court to pay a weekly allowance to his wife, and whose son is in contempt for a failure to make such payment, induces him to leave the State of New York and remain beyond its jurisdiction in grder to escape such payment, and furnishes him with money to do so, such act of the mother tends to defeat, impede and prejudice the right and remedy of the wife under the order directing the payment of the allowance, and the wife may maintain an action against the mother for the damages which have resulted from her act.</p> <p>What evidence is sufficient to present a question for the jury as to whether the. mother,- with a view to preventing -the collection of such allowance, furnished the husband with money to leave the State of New York and as to whether the mother had notice of the order directing such payment, considered!</p>

. Appeal by the plaintiff, Margaret Hanrahan, as administratrix, ■etc., of Matthew Hanrahan, deceased, from so much of a judgment of the Supreme Court, entered in the office of the clerk of the ■county of Onondaga on the 5th day of December, 1895, as directs that the complaint herein be dismissed as to the defendant George Cochran.upon a nonsuit granted by the court as to the defendant George 'Cochran after a trial before the court and a jury at the Onondaga Circuit. • .

Motion by the • plaintiff, Lewis J. Bennett, for a new trial on a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the verdict of a jury in favor of the plaintiff rendered by direction of the court after a trial before the court and a jury at a term of the Superior Court of the city of Buffalo'.on the ,3d day of October,, 1895. • The action was brought to recover for an installment of rent claimed to be due from the…

Wabd, J., dissented. Appeal by the plaintiff, The New York ' Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 16th day of March, 1895, upon the decision of the court dismissing the plaintiff’s complaint upon the merits after a trial at the Onondaga Circuit before the court without a jury.

Appeal by the plaintiff, Mary Lane, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Onondaga on the 20th day of March, 1896, upon the dismissal of the complaint upon the merits directed by the court after a trial before the court and a jury at a Trial Term, of the Supreme Court held in and for the county of Onondaga.

<p>Receiver in supplementary proceedings — order of a county judge for the sale of a,. . cause of action in suit — attm'ney’s lien,— receiver may be made a party —■ appeal.</p> <p>Where an attorney has a lien for services on his client’s claim, or cause of action, in a pending suit, the county judge should not direct that the cause of action be sold by a receiver of the client’s property appointed in supplementary proceedings in another action on the application of a judgment creditor, whose, claim'is sub j etit and subsequent to the attorney’s lien and less in amount, where, the attorney objects to such sale being made.</p> <p>An order of the county judge directing such a sale affects a substantial right of the attorney and of the judgment creditor, and they may appeal' therefrom, directly, under subdivision 3 of section 3483 of the Code of Civil Procedure, without first making a motion to vacate the order.</p> <p>In such a case, if the receiver-has reasonable grounds to believe that the interests, of the creditor whom he represents will be endangered in the conduct of the. pending action, he may apply to be made a party thereto.</p>

Appeal by the defendant, The Brush Electric Light Company, from a judgment of the Supreme Court in favor of the plaintiffs,, •entered, in the office of the clerk of the county of Monroe on the . 29th day of May, 1895, upon tlje verdict of a jury rendered after a trial at the Monroe Circuit, and also, from an order entered in said ■clerk’s office on the 24tli day of May, 1895, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by Spencer Clinton and others, as executors, etc., of Harriet A. Bennett^ deceased, from so much, of a decree of the Surrogate’s Court of the‘county of Erie, entered in said Surrogate’s Court on the 10th day of March, 1896, in a proceeding for the judicial ¡settlement of their accounts, as disallows certain commissions claimed by them as such executors. .

Appeal by Charles E.- Snyder from an order of the Supreme Court, made at the Herkimer Special Term on the 25th day of April, 1896, taxing the fees of the. clerk of the county of Herkimerfor services in making searches.

Appeal by the defendant, the Rochester Railway Company, from, a judgment of the Supreme Court in favor of the plaintiff, entered in.the: office of the clejrk of the county of Monroe on the 23d day of Hay, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme Court held in and for the county of Monroe, and also from an order entered in said clerk’s office on the 23d day of March, 1896, denying the defendant’s motion for a new_ trial made upon…

<p>AssaAilt and battery *— when a. verdict is against the weight of evidence.</p> <p>Where, in an action brought by a passenger to recover damages from a railroad corporation because of an alleged assault committed upon the passenger by. its conductor, testimony given by seven disinterested witnesses is overwhelmingly in favor of the defendant, and is substantially uncontroverted, and tends to show that the plaintiff was disorderly ; that he struck the first blow, and that the conductor used no unnecessary force, a verdict for the passenger must be set aside.;</p>

Motion by the defendant, Samuel G. De Coursey, as receiver of the Western New York and Pennsylvania Railroad Company, for a new trial on a case containing exceptions, orderéd to be heard at the Appellate Division in the first instance, upon the verdict of a jury for $187.43, in favor of the plaintiff, rendered after a trial at the Livingston Circuit on the 11th day of November, 1895.

Appeal by the plaintiff, Mary A. Leach, from a judgment of the Supreme Court in favor the defendants, entered in the office of the clerk of the county of Cattaraugus on the 12th day of December, 1895, upon the verdict of a jury rendered after a trial at the Cattaraugus Circuit, and also from an order entered in said clerk’s office on the 6th day of December, 1895, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal ¡by the defendants, John F. Dorthy 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 Monroe on the 4th day of June, 1896;, upon the decision of the court rendered after a trial at the Monroe Equity Term. (Sée Marden v. Dorthy, No. 2, post, p. 188.)

Appeal by the defendants, Ella H. Dorthy and John F. Dorthy, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 26th day of March, 1896, upon the decision of the court rendered after a trial at the Monroe Equity Term.

Appeal by the defendants, The Medina Gas and Electric Light Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orleans on the 22d day of June, 1895, upon the report of a referee.

Appeal by the defendants, George F. Hedge 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 Niagara on the 27th day of April, .1,896, upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme Court held in and for the county of Niagara, and also from an order entered in said clerk’s office on the 12th day of May, 1896, denying the defendants’ motion for a new ■trial made…

Appeal by the plaintiff, the Remington Paper Company, 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 19th day of November, 1893, upon the decision of the court rendered after a, trial at the Jefferson SpecialTerm dismissing the plaintiff’s complaint.

Appeal by the plaintiff, George R. Cornwell, as: assignee for the-benefit of creditors of Edsto Potter and others, from so much of a judgment of the Supreme Court, entered in the office of the cleric of the county of Tates on the 13th day of May,. 18.96, upon the decision of the court rendered after a trial at the Tates Equity Term as adjudges: That the said assignment of date of July 24, 1895, made by Potter, Kimie & Kendall to the defendant was made in good faith for the…

Appeal by Mary E. Thrall 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 29th. day of September, 1896, as denies her application to compel the assignee, for the benefit of creditors of her husband, Edwin A. Thrall, to pay to her the sum of $950, alimony pendente litey claimed to be due her under an order of the Supreme Court bearing; date the 31st day of July, 1894.

Appeal by the plaintiff, William T. Gilbert, as receiver of the' Commercial Alliance Life Insurance Company, from a judgment of. the Supreme Court ill favor of the defendant, entered in the office of the cl'erk of the county of Hew York on the 21st day of May, 1896, upon the verdict of a jury rendered by direction of the court after a trial at a Trial Term of the Supreme Court held in and for the-county of Hew York, and also from an order entered in said clerk’s office on…

<p>A stranger to a deed cannot bring ejectment unless he shows privity of estate—matters not establishing privity — covenant as to a wife’s title to land, occupied by both husband and wife, of which she had, the record title—it does not run with the land.</p> <p>Privity of estate is essential to support a right of action by a stranger to a deed upon its covenants of warranty and quiet enjoyment when there has been an eviction by paramount title.</p> <p>A husband, who lives with his wife on real property, the record title of which is vested in his wife, has no such interest in the property as will make his covenant in a deed thereof executed by him and his wife, to the effect that his wife is lawfully seized thereof in fee simple free from incumbrance and has good right to convey, run with the land.</p> <p>The fact that .the negotiations for the sale of the land and of certain furniture, etc., were had with the husband, who executed the agreement of salé in his own name and was paid and receipted on the back of the contract for the personal property which belonged to him, delivered the deed and received the purchase price in a check to his order, and received and receipted for the pay- • ments of interest on a mortgage taken by the wife, does not change the husband’s interest or position in respect to the title to the property.</p> <p>The presumption being'that legal possession follows the ownership of land, where the owner is in actual possession and in the enjoyment of the premises something more than mere occupancy upon the part of another must be shown ’in order to abridge the title of the true owner.</p>

<p>Appeal by the plaintiff, Willoughby Weston, as trustee, etc., of William G. Breese, deceased, and by the defendants, Charles A. Sands and others, from an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 6th day of December, 1895, upon the decision of the court rendered after a trial at the New York Special Term, and also from a final judgment entered in said clerk’s office on the 25th day of April, 1896,- upon the report of a referee. ■</p>

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

Appeal by the defendant, the Merchants’ Refrigerating and Ice; Manufacturing Company, from a judgment of - the Supreme Court' in favor ¿f the.plaintiff, entered in the office.of the clerk of the county of ..-New York on. the 1.9th day qf June, 1896, upon the verdict of a jjury. rendered after a trial at a Trial Term of the Supreme Court held in and for the county of New York, and also from an order entered in said clerk’s office on the 19th day of June, 1896, denying the…

' Appeal by the defendants, The New York Elevated Eailroad Company and another, from a judgment of. the Court of Common Pléás for the city and county of New York in favor of the plaintiff, entered in the office of the clerk of said court on the 3d day of 'December, 1895, upon the decision of the court rendered after a trial at an Equity Term thereof.

Appeal by the plaintiff, Mortimer Stiefel, as receiver of the New York Novelty Company, from a judgment of the Supreme Court ip favor of the defendants Sophia Schwab and others, entered in the office of the clerk of the county of New York on the 24th day of March, 1896, upon the decision of the court rendered after a trial at the New York Special Term dismissing the complaint.

<p> “With costs” in a remittitur from, the Court of Appeals does not mean “costs to each of the appellants.” </p> <p>A remittitur from the Court of Appeals which recites “that the order of the General Term * * * is hereby reversed and the order of the Special Term of said court affirmed, with costs,” does not justify the court below in entering an order giving “ costs to each of the appellants herein.”</p>

Appeal by the defendant, William A. Underwood, from an order' of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of November, 1896, denying his motion to resettle an order entered in said clerk’s office on the Yth day of November. 1896. ■ _

Appeal by Edith H. Simmons, contestant and only child and heir at law of Angelina Crane, deceased, from a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on, the 28th day of July, 1896, admitting to probate the will of her mother, Angelina Crane, and construing certain provisions thereof.

<p>Appeal by the plaintiff, Emma Condit Smith, as testamentary guardian, etc.,, of Louise Condit Smith and Sallie Barnes Smith, 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 17th day of November, 1896, upon the decision of the court rendered after a trial at the New York Special Term dismissing the complaint.</p> <p>The mother of the. above-named infants was Sallie. L. D. B. Smith, who died in July, 1890, a resident of New Jersey. In that month her will .-.was .admitted to probate in Essex county of that State. After directing the payment of all debts, funeral expenses and a certain legacy the, will stated that, in. case the testatrix left children surviving her, certain articles of personal property should go to her husband, George Condit Smith, and then provided: “ I give, devise and bequeath the equal undivided half }:>art of all the rest of my property as aforesaid to my husband absolutely, and the other equal undivided half part thereof I give and bequeath absolutely to such child or children, and, if children, then in-equal shares; but I direct that my husband shall hold the same in trust for such child or children during its or their minority,, managing and investing the same according to law,.and from time to time applying such parts of the income thereof to the support,, maintenance and education of such child or children as he may think advisable; the determination of my husband as to such management, investment and application of income shall be final and without appeal or question, as I have full confidence in his good sense and discretion.”'</p> <p>The testatrix left surviving two infant children, the above-named Louise Condit Smith and Sallie Barnes Smith. By two agreements, made December 23, 1890, and May 25, 1891, her husband, George Condit' Smith, deposited certain securities representing the one undivided half of the estate held by him in trust for these children under the above provision of their mother’s will with the defendant trust company, the agreements providing that it should retain possession of them until the majority or death of the said children, collect the interest and.pay it over to himself during his life,, and after his death to the.guardians of the children appointed by his will or by some court of competent jurisdiction; deliver the securities to the children at their majority, and, in case of their death before majority, deliver the securities to the next of kin, under the New Jersey law,, of the child so dying. George Condit Smith subsequently died, and by his will appointed the plaintiff, his second wife* guardian of said children. This will was admitted to probate in New York county, of this State, on July 31, 1895. Previously thereto á petition had been presented to the chancellor of New Jersey by J. Condit Smith, the uncle of the children, as their next friend, for the appointment of a trustee under the will of .Sallie L. D. B. Smith in the place of George Condit Smith, and in pursuance thereof the defendant William Pennington was appointed such trustee by order of the Court of Chancery, made October 15, 1894. On the same day Mr. Pennington served notice upon the defendant trust company to pay over the securities and income thereof to no one but himself.</p> <p>The plaintiff, having accepted the appointment contained in the will of her husband and received letters of guardianship from the Surrogate’s Court of New York -county, brings this action to have it decreed that the defendant Pennington has no interest in the securities deposited with the defendant trust company, or the income derived therefrom, and to have the defendant trust company account to her for the income already collected. At the trial the complaint was. dismissed, and it was adjudged that the defendant trust company pay over to the defendant Pennington, as trustee under the will of Sallie L. D. B. Smith, the income of said securities.</p>

<p>Appeal by the defendants, The Metropolitan Elevated Railway . Company, and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 8th day of August, 1895, upon the decision of the court rendered after a trial at the New York Special Term.</p>

Appeal by the plaintiff, George F. Nixon, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the cleric of the county of New York on the 20th day of February, 1896, upon a dismissal of the complaint directed by the court vafter a trial before the court and a jury at a Trial Term of the Supreme Court held in and for the county of New York.

<p>Appeal by the plaintiff, The Garvin Machine Company, from a judgment of the Supreme Court in favor of the defendant, entered in the, office of the clerk of the county of New York on the 22d day of May, 1894, upon the report of a referee dismissing the complaint and awarding the defendant an affirmative judgment.</p> <p>The action is brought by the plaintiff, as assignee of the firm of E. E. Garvin & Co., composed of Hugh R. Garvin and M; Garvin, to recover various sums of money for work done for, and materials furnished to, the defendant. Both plaintiff and defendant are domestic corporations. The answer denied many of the allegations of the complaint as to the work and materials and their value, and set up payment of many of the items claimed, and counterclaims for overcharges by the firm of Garvin & Co., and failure by them to fulfill the obligations subsisting on their part toward the defendant. The referee found that the plaintiff had made out a cause of action for the sum of $234,172.82, but that the defendánt was entitled to a credit of $234,652.63. He gave a judgment for the defendant for the excess, and dismissing the complaint.</p> <p>Among the items of the plaintiff’s claim was one for $23,297.10 for 8,335 type wheels furnished to the defendant. The latter claimed that the price of 5,093 of these wheel's was included in the price of certain typewriting machines made by the firm,of Garvin & Co. for the defendant under a contract executed on November 12, 1884. By this contract the firm of Garvin & Co. agreed to manufacture for the defendant “five "thousand Hammond typewriter machines, equal to the complete model machine to be furnished by the said party of the second part (the defendant).” The plaintiff claimed that but one type wheel was to be furnished with each machine — the defendant, that two went with each of them under the contract. The referee found in favor of the defendant on this issue, and did not allow the plaintiff for the type wheels delivered with the machines provided for by the contract, and certain others, in excess of the contract number, but delivered and received under its terms.</p> <p>Further facts are stated in the opinion.</p>

<p>Dismissal for a neglect to prosecute — ill-health of the plaintiff’s attorney.</p> <p>The fact that an action has been at issue and untried for almost six years, and that younger issues have been tried, is prima facie evidence of an unreasonable neglect to prosecute. ■■</p> <p>Á vague statement that the plaintiff’s attorney’s ill-health for several years was the causei of the delay, neither the character of the illness nor its extent being stated, and it not appearing that the attorney was prevented from practicing his profession or attending to business generally, does not justify a denial of a motion to dismiss because of a failure to prosecute.</p> <p>The filing of a note of issue and the service of a notice of trial, shortly before the motion, are not of any importance in the matter.</p>

Appeal by the defendant, Lombard, Ayres .& Co., from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk, of the county of New York on the 28th day of January, 1896, upon the verdict of a. jury rendered after a trial at a Trial Term of the Supreme Court held in and- for the county of New York, and also from an order bearing date the 23d day of January, 1896, and entered in said clerk’s office, denying the defendant’s motion for a…

Appeal by the plaintiff, William E. Wamsley, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 25th day of July, 1896, denying the plaintiff’s motion to amend the summons and pleadings and to continue the action in the names of Henry L. Horton, William R. Balch and Francis A. Vauillon, as trustees of the defendant, H. L. Horton & Co., Limited.

Appeal by the defendant, The Empire Plaid Mills, from a. judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Few York on the 24th day of February, 1896, upon the verdict of a jury rendered after a trial at a- Trial Term of the Supreme Court held in and for the county of Few York, and also from an order entered in said clerk’s office on the-26th day of February, 1896, denying the defendant’s motion for a new trial made…

Appeal by Simon Góldenberg from so much of an order of the Supreme: Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the- 10th day of July, 1896, as directs John S. McMaster, as ancillary receiver of the L: & 0. Wise Company, to pay to B. G; Monroe, as attorney for the receiver of taxes, a certain sum of money in settlement of the taxes due, from said corporation or said ancillary receiver, to said receiver of taxes.

<p> Negligence—injury at the approach to an elevated railroad station—when questions of negligence and contributory negligence are far the jury. </p> <p>A woman about to take a train on an elevated railroad, after mounting the stairs, and while looking in her pocket for money to pay her fare, walked along and • fell over a man who was either standing or kneeling (there being a conflict in the evidence as to-his position) on the floor at' a point about four feet from the head of the' stairs leading to the station engaged in putting 'up a poster on a signboard.</p> <p>In an action brought by the woman to recover the damages for injuries resulting from the accident,</p> <p>Held, that ¡the questions as to the negligence of the railroad company and as to the womanti contributory negligence should have been submitted to the jury.</p>

Appeal by the defendant, Samuel S. Fretz, 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 27tli day of March, 1896, upon the decision of the court rendered after a trial before the court without a jury at. a Trial Term of the Supreme Court held in and for the county of ¡New York.

Appeal by the defendants, Ronald K. Brown and another, as trustees, etc., of George Ohesterman, deceased, and others, from por-tions of an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the county of Yew York on the 30th day of June, 1896, upon the report of a referee; also a motion by the said defendants for a new trial upon a case containing exceptions.

Appeal by Charles L. Bernheim and others from an order of the Supreme Court, made at the 'New York Special Term bearing date the 20th day of November, 1896, and entered in the office of the clerk of. the county of New York, denying' their motion to amend an order bearing date September 30, 1895.

Appeal by Charles L. Bernheim from an order' of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of May, 1896,'adjudging him guilty of contempt for refusing to answer certain questions propounded to him, upon the trial before a referee, and imposing a fine of $100 upon him, and committing him to the county jail until he answered such questions and paid such fine.

<p>Appeal by the defendant, John Murray Mitchell, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 24th day of January, 1896, upon the verdict of a jury directed by the court after a trial at a Trial Term of the Supreme Court held in and for the county of Hew York, and also from an order entered in said clerk’s office on the 23d day of January, 1896, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>The action was brought to recover a balance due of royalties agreed to be paid by the Safety Electric Construction Company to plaintiff’s assignor, Henry Creamer, and guaranteed by the defendant.</p> <p>. Creamer was the owner of patents upon a steam pump trap, and under his agreement with the company they were to have the exclusive right to make, use and sell the patented article, and were to pay Creamer one-fifth of the profits as a royalty, guaranteeing him not less than $2,000 a year. - Creamer was to receive thirty dollars a week on account of such royalty, and was to devote his time and attention for three years (or so long within such period as such weekly payments were promptly made) to the welfare of the enterprise as superintendent of construction and salesman, “ if requested so to do ” by the company. In case the company failed to pay the thirty dollars a week, if Creamer so elected and served notice in writing on the president of the company to that effect, all the rights secured to the company were, after a period of sixty days from such notice, to revert to and become the property of Creamer, unless within such period the company should have fulfilled its unfulfilled obligations. If the company desired to cancel the contract, it was to do so, if at all, on the first day of June in any year, after first paying any amount due Creamer up to date. The defendant’s guaranty was that the thirty dollars a week should be promptly paid, and was to run a period of not more than three years from July 11, 1890, and only so long as said license should remain uncanceled and Creamer should continue to render the services provided in. the contract, pursuant to the terms thereof, within the said period of three years.</p> <p>Creamer received his weekly royalties under the agreement up to some time in December, 1891. On January 30,1892, $225 of such royalties remained unpaid;, and on that day he notified the defendant, as president of the company, in writing, of- the arrearage, and stated that he elected to terminate the contract under the provision thereof permitting such cancellation at the end of Sixty days: if the company’s obligations continued to be unfulfilled. By a letter dated the samé day (January thirtieth), but which Creamer says he did not receive until a day or two after, the company requested him to deliver up all the keys that he had belonging to the shop, with which he complied. On February first Creamer went to the company’s place of business, found the door locked, and was told by the person-in charge that he had been instructed to allow him- to have nothing to do with the work, and, further, that the men were not to obey any of his instructions. To explain this demand for the keys and refusal to permit him to work, the defendant produced witnesses who testified that Creamer had been guilty of immoral conduct at the factory. Creamer contradicted the testimony as to his immorality by; his own evidence and that of' other -witnesses. On February second Creamer’s attorneys wrote to the company, reciting the facts of the demand for the keys and the refusal ,to permit him to work, stating that Creamer was ready and willing to continue his work pursuant to the terms of the contract, if requested by the company, and concluding.with the statement: “We take it that you desire to dispense with his services as superintendent of construction and salesman, and will so construe the action taken by you Unless otherwisé notified at once.”. To this the company replied the next day, February third, informing Creamer’s attorneys that Creamer had had poor success with his work ; that the reason that they demanded the keys and refused to permit him to go there further was because of his immoral acts at the shop, which had a bad influence on the workmen and was detrimental to the business; and that, as they construed the contract, they could, if they chose, “ call upon him again &i any time to act as superintendent of salesman.” Creamer testifies-that he was ready and willing, at all times, to act.in .that caj>acity if asked. On February fourth he wrote to the conipany that he would be glad to respond to any request they might make to continue his services.</p> <p>On Miarch 28, 1892, Creamer’s attorneys wrote to the defendant as president of the company, making three demands in Creamer’s behalf, based upon the contract: (1) For an accounting; (2) for the payment of $500, and (3) the payment of $465, the amount of guaranteed royalties up to March 26, 1892. On March twenty-ninth the defendant, as president, replied that under the third demand' the company would pay under protest the $465. On the same day Creamer’s attorney notified the company that on their failure to. comply with the terms suggested by the letter of March, twenty-eighth,- he should claim, an absolute forfeiture of the company’s rights under the contract. The company tendered Creamer the $465 on March thirtieth ; he refused to accept it, and on April thirtieth the company sent a check for that amount for him to his attorneys.</p> <p>On March thirtieth the sixty days had expired since Creamer’s notice of election to cancel the contract. On that date the company commenced an action in the Supreme Court against Creamer for an accounting, and a preliminary injunction was obtained restraining him from transferring any of the patents or forfeiting any of the company’s rights under the contract, which injunction was subsequently continued pendente lite. On or about April 2, 1892, the company commenced another action in the Supreme Court, against Creamer, for an injunction restraining him from rescinding the contract; in his answer thereto Creamer claimed that the company had not paid him in full and had forfeited all its rights under the contract. The two causes were tried together, and in December, 1892, the complaint in the first action was dismissed, and in the second action the injunction was granted.</p> <p>In August, 1891, Creamer assigned to his wife, the plaintiff, the patents under which the company was working, and in June, 1893, he assigned to her all his interest -in his contract with the company. After March 30, 1892, the company never paid to Creamer or to the plaintiff anything on account of royalties under the contract, and the royalty sought to be recovered in this action is that which accrued from March 30, 1892, to July 10, 1893, the expiration of the three years provided for under the guaranty, for the full amount -of which the court directed a verdict.</p>

Appeal by the defendant, William E. Lennon, from, a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 29th day of April, 1896, upon the verdict of 'a jury rendered- after a -trial at a Trial Term of the Supreme Court held in and for the county of New York, and also from an order entered in said clerk’s office on the 29th day of April, 1896, denying the defendant’s motion for a new- trial made upon…

Appeal by the defendant, Charles C. Worthington, 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 April, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme Court held in and for the county of New York, and also from an order entered in said clerk’s office on the 6th day of May, 1896, denying the defendant’s motion for a new trial made upon the…

Appeal by the plaintiff, Elizabeth. Boess, as administratrix,, etc., • of Louis Boess, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 4th day of April, 1896, upon a dismissal of the complaint directed by the court after a trial before the court and a jury at a Trial Term of the Supreme Court held in and for the county of New York.

<p>Appeal by the defendant, William L. Hubbell, as treasurer of the Adams Express Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Few York on the 11th day of June, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme Court held in and for the county of Few York, and also from an order entered in said clerk’s office on the 9th day of June, 1896, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Emma Condit Smith, as executrix, etc., of George Condit Smith, and as testamentary guardian of Sallie Barnes Smith and Louise Condit Smith, infants, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Hew York on the 9th day of September, 1896, upon the decision of the court -rendered after a trial at a Trial Term of the Supreme Court- held in and for the county of Hew York before the…

<p>Negligence—a child crossing the tracks of a street railroad and falling on them.</p> <p>Where a child, attempting to cross a street in front of an approaching horse car, which is from thirteen to eighteen feet distant, falls and is first seen when the horses attached to the car are about five feet from her, the failure of the driver, who, on seeing the child on the track, applies the brake, to succeed in completely stopping the. car (which is under his control and is not moving rapidly) before it reaches the child, does not warrant a finding of negligence. on the part of the street railroad company.</p>

<p>Appeal by the plaintiff, Edward R. Schafer, as administrator, etc., of Franz Schafer, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 21st day of February, 1896, upon a dismissal of the complaint directed by the court after a trial before the court and a jury at a Trial Term of the Supreme Court held in and for the county of Hew York.</p>

<p>Certificate of an engineer as to work done — when not impeachable by proof that a wrong method was adopted.</p> <p>Where a contract provides that the contractor shall be bound by the final certificate of the engineer in charge of the work, such certificate, in the absence of proof of corruption, bad faith or misconduct upon the part of the engineer, or unless a palpable mistake appears upon the face of the certificate, is conclusive.</p> <p>In the face of such a certificate relative to the quantity of" filling done, the contractor cannot be allowed to show that the bottom line or level of the proposed filling, as shown by the maps and plans, was established-by an erroneous method, which fixed the line at a point higher than its true place, and that the contractor was, therefore, compelled to.do an extra amount of filling.</p>

Appeal by the defendant, Katharine T. Moore, from an order of the Court of Common Pleas for the city and county of blew York bearing date the 16th day of July, 1896, and entered in the office of the clerk of said court, denying her motion for leave to withdraw her demurrer and serve an answer.

<p>Habeas corpus—when a woman is living in a “state of separation” — custody of minor children —fitness of the- mother — improper conduct of the father.</p> <p>In order to maintain a proceeding under 2 Revised Statutes (148, §§ 1, 2 and 3), providing that where a husband and wife, live in a “ state of separation,” without being divorced,' the wife may apply to the Supreme Court for a writ of habeas corpus to have any minor child of the marriage brought before it, and thereupon the court may award the custody of such child to her, it is not necessary that the separation be the result of an arrangement or treaty between the parties, placing them in the position of assenting to such “state of separation.”</p> <p>■ In order to warrant the court in exercising the purely discretionary power conferred by such provisions of the. statute, it must be shown that the wife had good and substantial grounds for leaving her husband, but it is not necessary that such grounds be sufficient to enable her to obtain a decree of divorce from him. .</p> <p>. Where, upon the hearing of such a proceeding, it appears that the wife was morally justified in leaving her husband; that she is a woman of refinement and education, is personally and pecuniarily competent to take charge of her children, who are of tender years, one a boy of delicate health and the other a girl; that she is deeply interested in their welfare, then a case is presented which justifies the court in awarding to the wife the custody of the children.</p>

Ingraham, J., dissented. Appeal by the defendant, the New York and Harlem Railroad Company, from an order of the Supreme Court, made at the New York Special Term and entered in the- office of the • clerk of the county of New York on the 8th day of October, 1896, denying its motion for a new trial on the grounds of newly-discovered evidence, surprise and that the trial had resulted in an injustice.

<p>Landloi'd and tenant — arbitration as to value, for a renewal—enforced by the courts.</p> <p>A lease of certain lots provided that at the expiration of the term for which it was to run the lessor might either grant a renewal, at a rent which- should be agreed upon, or, failing such agreement, then that each party to such lease should choose a disinterested -person to appraise the lots as a basis for rent; and ■ that in case the two arbitrators differed they should choose an umpire “whose decision, under oath, shall fix and determine the same.”</p> <p>When the lease expired, the parties in interest appointed arbitrators, who finally failed to agree on July 34, 1895. Shortly after that date the lessee’s arbitra^ tor was taken sick and thereafter went to Europe for his health, and although the lessor insisted that an umpire should be chosen and the arbitration proceed, the lessee was unwilling to, and would not, act in the absence of his arbitrator, nor would he appoint a new arbitrator. As a result the lessor brought an action in January, 1896, to have the valuation of the property fixed by the court.</p> <p>Held, that when the arbitrators failed to agree, the only duty left for them to perform was to appoint art umpire, in the performance of whose duties under the agreement they were not required to be present or act;</p> <p>That a suitable person should be appointed by the court to make an appraisal.</p>

Appeal by the plaintiff, John 0. Sheehan, from an order of the Supreme Court, made at the New York Special Term and- entered in the-office of the clerk of the county of New York on - the 14th day of Atigust,. 1896, denying his motion to vacate an order for the examination of defendants’ witnesses before the trial of the action.

Motion by the defendant, Daniel S. McElroy, for a new trial upon a case containing exceptions, - ordered to be heard at the Appellate Division in the first. instance, upon the verdict of a jury in favor of the plaintiff rendered by direction of the court after a trial at the New York Circuit on.the 20th day of November, 1895.

Appeal by the plaintiff, August Belmont, from an order of the Supreme Court, made at the New York' Special Term and entered in the office of the clerk of the county of New York on the 1st day of September, 1896, denying his motion to amend the papers on which an attachment was granted, and vacating the said attachment.

Rumsey and Patterson, JJ., dissented. Appeal by the defendant, The Second Avenue Railroad Company,, from a judgment of the Supreme Court in favor of the plaintiff,, entered in the office of the clerk of the county of New York on the 16th day of March, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme Court held in and for the county of New York, and also from an order entered in said clerk’s, office on the 10th day of April, 1896, denying…

<p> Life insurance —asthma—prior rejection by another companyeffect of knowledge \ by a company issuing a policy. </p> <p>An applicant for insurance was examined by the same doctor under two applications.- In the medical blanks, on the first it was stated that he had asthma; in the-second nothing was said of asthma. The doctor stated to .the vice-president of the second company that he had a good risk, and that he would get it from-the other company. The first company rejected' the application, which fact and an. alleged misrepresentation as'to the applicant’s physical condition Were ■ set -up as breaches of warranty, violating a policy issued to him by the second . -. company! and as a defense thereto; in an action brought .to enforce it. On the trial the jury found that the second company knew of the. rejection of the application by the first company, and also that the applicant did not have asthma,</p> <p>Held, that the verdict was justified;</p> <p>That from the facts proved the jury were entitled to infer facts sufficient to sustain the plaintiff’s cause of action.</p>

Appeal by the plaintiff, Mary Phillips, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of. the county of Hew York on the.9th day of March, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme Court held in and for the county of Hew York, and also from an order entered in said clerk’s ■ office on the 9th day of March, 1896, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, Adolf Grauer, from a judgment of the-Court of General Sessions of the peace in and for the city and county of Dew York; rendered on the 17th day of December, 1895, convicting the defendant of the crime of rape in the s.econd degree and sentencing him to imprisonment for a term of ten years.

Appeal by the plaintiff, Frederick M. Patchen, from a judgment of the Supreme Court in favor of the defendant, George B. Rofkar, as assignee for the benefit of creditors of Louis Waefelaer, entered in the office of the clerk of the county of New York on the 8th day of dune, 1896, upon the decision of the court rendered after a trial at the New York Special Term dismissing the complaint as to said defendant on the ground that it did not state facts sufficient to constitute a…

Appeal by Henry F. Harrison, a junior attaching creditor, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 9th day of October, 1896, denying his motion to vacate an attachment in favor of the plaintiff issued in the action.

Appeal by the defendant, Anna W. Baird, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Few York on the 4th day of February, 1896, upon the report of a referee. ■'

<p>Appeal by the defendant, Charles A. Lieb, "from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rew York on the. 28th day of February, 1896, upon the report of a referee.</p>

<p>Insolvent corporation — a judgment recovered against it, after the filing of a petition for its voluntmy dissolution and before the appointment of a receiver, is valid.</p> <p>Where a creditor of a corporation recovers judgment, issues an execution and levies upon its property, after a petition has been filed for its voluntary dissolution, but before the appointment of a receiver of its property in such proceedings, the creditor is entitled to hold the property levied upon as against the receiver, as the appointment of the latter relates back only to the date when his appointment was made, and not to the day upon which the petition was filed in the proceeding taken for the voluntary dissolution of the corporation. Where a just debt exists against an insolvent corporation, against which an action is brought, the fact that the corporation fails to defend is not alone sufficient to justify the inference that the judgment was suffered with intent to give a preference, and a judgment so entered ig not invalid under section 2430 of the Code of Civil Procedure.</p>

<p>Police Courts and Courts of Special Sessions — the testimony on a trial must he ' reduced to writing.</p> <p>It is the duty of every court or magistrate before whom a trial is had to reduce the testimony to writing, and this is especially so where the trial is had upon a charge which is criminal in its nature.</p> <p>The provisions contained in part IY of the Code of Criminal Procedure relating to criminal actions prosecuted by indictment do not apply to proceedings had under part Y of that Code relating to .proceedings in Courts of Special Sessions and Police Courts.and before police magistrates, unless-specially declared ' to be applicable thereto.</p>

Appeal by the plaintiff, Bridget Gillespie, as administratrix, etc., of John Gillespie, deceased, from a judgment of the Court of Common Pleas for the city and county of ¡New York in favor of the defendant, entered in the office of the clerk of said court on the 13th day of June, 1895, upon the verdict of a jury rendered after a trial at a Trial Term of said' court, and also from an order entered in said clerk’s office on the 6th day of June, 1895, déuying her motion for a…

Appeal by the defendant, The 'Third Avenue Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county oDNew York on the 23d day of March, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme Court held in and for the county of- New York, and also from an order entered in said clerk’s office on the 24th day of March, 1896, denying the plaintiff’s motion for a new trial…

Williams, J., dissented. Appeal by the defendant, The Third Avenue Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 10th day of February, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme Court held in and for the county of New York, and also from an order entered in said clerk’s office on the 13th day of February, 1896, denying the…

Appeal by the plaintiffs, Frederick Gorrell and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 6th day of December, 1895, upon the decision of the court rendered after a trial at the New York Special Term dismissing the complaint upon the minutes.

Appeal hy the relator, John J. O’Brien, from an order of ths> 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 Ith day ■of August, 1896, denying his motion for a peremptory writ of mandamus to compel the respondents, as park commissioners, to reinstate him in the position of “ teamster with team,” from which he had been removed.

Appeal by the defendant, Samuel Nelson, 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 2d day of May, 1896, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the' defendant, The New York Central and Hudson • River Railroad Company, from a judgment of the Court of Common Pleas for the city and county of New York in favor of the plaintiff, entered in the office of the clerk of said court on the 8th day of November, 1895, upon the verdict of a jury rendered' after a trial at a Trial Term of said court, and also from an order entered in said clerk’s office on the 31st day of October, 1895, denying the •defendant’s motion…

Appeal by the defendant, The Dry Dock, East Broadway and Battery Railroad Company, from a judgment-of the Supreme Court in favor of the plaintiff, entered in the office of the clerk o£ the county of New York on the 20th day of November, 1895, upon the verdict of a jury rendered after a trial at the New York Circuit, and also from an order entered in said clerk’s office on the 19th day of November, 1895, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiffs, William Alyéa and another, from an interlocutory judgment of the Supreme Oonrt-in favor of the defendant, The Citizens’ Savings Bank, entered in the office of the. clerk -of the county of New York on the 20th day of July, 1896, upon the decision of the court rendered after a trial at the New' York Special Term sustaining the said defendant’s demurrer to the complaint.

Appeal by the defendant, Oscar Hammerstein, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of September, 1896, requiring him to furnish a bill of particulars of his answer and counterclaim.

Appeal by the defendant, Ashbel P. Fitch, as comptroller of the city of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 22d day of April, 1896, granting the relator’s motion for a peremptory writ of mandamus directing-him to audit and pay the-claim of the relator under section 3 of chapter 166 of the Laws of 1870, for clothing pupils resident in the city and county of New…

Appeal by the plaintiff, Apofonía Fejdowski,' as administratrix, etc., of Wincenty Fejdowski, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Schenectady on the 21st day of April, 1896, upon a nonsuit granted by the court after a trial at a Trial Term off the Supreme Court 'held in and for the county of -Schenectady.

Appeal by the defendant, The Village of Waverly, from' an ■order of the Supreme Court, made at the Schuyler Special Term, ■and entered in the office of the clerk of the county of Tioga on the 21st day of September, 1896, allowing and taxing costs in favor of the plaintiff and against the defendant in the above-entitled action.

Appeal by the plaintiff, Edmund O’Connor, as assignee of Erastus Ross and others, for the benefit of creditors, from a judgment of the Supreme Court in favor of the defendant, Winfield Scott Brandt, entered in the office of the clerk of the county of Broome on the 29th day of September, 1896, upon a report of a referee dismissing the complaint as to said defendant upon the merits.

Appeal by the plaintiff, George Suiter, from a judgment of the . County Court of Ulster county in favor of the defendant, entered in the office of the clerk of the county of Ulster on the 5th day of April, 1893, upon the decision of the court, affirming a judgment rendered by a justice of the peace, dismissing the complaint with, costs.

Appeal by the defendant, Levi Ogden, from an order of the Supreme Court, made at the Washington Trial Term and entered in the office of the clerk of the county of Washington on the 4th da.y of December, 1896, denying his motion to strike the action from the calendar of the Trial Term of the Supreme Court in Washington county. This action was commenced by the service of a summons without complaint; the summons stated that the trial was desired in Washington county.

Appeal by the defendants, Stephen Cornell, -as executor, etc, of Jacob N. Doty, deceased, and others, from a judgment of the Supreme Court in favor of the plaintiff, entered-in the office of the elerk of'the county of Washington on the 5th day of Hay, 1896, upon the¡ report of a referee for the sum of $1,460 and costs.

Appeal by the defendant, The Albany Dry Goods Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 10th day of June, 1895, upon the verdict of a jury rendered after a trial at the Albany Circuit, and also from an order entered in said clerk’s office on the 23d day of May, 1895, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Martin L. Holdridge and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Greene on the 27th day of January, 1896, upon the report of a referee. The action was brought to recover treble damages for trees cut by the defendants and for an injunction. The judgment was for single damages and for an injunction.

<p>Appeal by the plaintiff, James Gr. McKee, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Washington on the 2d day of October, 1896, upon the dismissal of the complaint directed by the court after a trial at a Trial Term of the Supreme Court held in and for the county of Washington.' .</p> <p>■ ■ The plaintiff sought to recover, damages for injury done to a part of a cargo of potatoes upon the.:boát Quebec, which was sunk at Blackwell’s island, whithei' it had., proceeded in order to deliver some potatoes to the defendant, under an agreement, of which the following is a copy:</p> <p>“Hew Yobk, January 23c?, 1895.</p> <p>“ Received this day from C. F, De Witt, one hundred dollars ($100) on account of Peerless potatoes on the boat Quebec, sold to" said De Witt this day for one dollar and fifty cents ($1.50) per bbl. of 172 lbs., delivered at Blackwell’s Island, De Witt guarantees to return the boat without damage, McKee to pay towing.</p> <p>“JAMES G. McKEE- “ CHARLES F. DE WITT.” "</p>