Volume 12 — E.H. Smith

The nature of the action and the facts, so far as material, are stated in the opinion. The act of the Appellate Division in dismissing the plaintiff’s complaint and rendering judgment absolute against him was unauthorized and erroneous.

new trial. This action, was brought to recover damages for the breaking of a planing machine belonging to the plaintiff, while in the custody of defendants, who were truckmen in the city of New York, for transportation to the plaintiff’s factory. The facts, so far as material, are stated in the opinion.

Appeal, by permission, from a judgment of the late General Term of the Supreme Court, in the second judicial department, entered January 22, 1896, reversing a judgment of the County Court of Westchester county in favor of the plaintiff, and dismissing the complaint upon the merits: This action was brought to recover fifty-four dollars and seventy cents, the amount of an assessment levied upon the plaintiff’s property by the defendant for resetting curbs on the streets in…

The nature of the action and the facts, so far as material, are stated iii the opinion. The plaintiffs failed to establish a contract, and the denial of defendants’ motion for a nonsuit was error. (B., C. & S. A. B. Co. v. Maggs, L. R. [44 Ch. Div.] 616; Frazer v. Small, 13 N. Y. Supp. 469; Kirwan v. Byrne, 9 Misc.

A confidential relation existed between the parties, and equity will not sanetion any part of the agreement of January, 1889. (Cowee v. Cornell, 75 N. Y. 91; Pom. Eq. Juris. § 951; Story’s Eq.

<p>1. Sureties in Legal Proceedings — Order of Liability. As between different sets of sureties who undertake to secure the same debt, although in different stages of legal proceedings, the primary liability rests upon the last set.</p> <p>2. Bail are Sureties. Bail upon a discharge from an order of arrest are sureties, within the above rule.</p> <p>3. Satisfaction of Judgment through Sureties. Where, in an action resulting in judgment for the plaintiff successively affirmed, bail has been given upon discharge of the defendant from an order of arrest and undertakings have been given upon his appeals to the General Term and to the Court of Appeals, if the plaintiff collects from the General Term sureties the whole amount due him, except on the judgment for costs in the Court of Appeals, he cannot thereafter recover from the bail, either for his own benefit or that of a General Term surety, anything more than the amount due on the judgment for costs in the Court of Appeals, and not even that if he has released the Court of Appeals sureties.</p> <p>4. Right of Reimbursement among Sureties. If, under the above circumstances, the plaintiff recovers the amount of the judgment for costs in the Court of Appeals from the'order of arrest bail, the latter will have the right of reimbursement from the Court of Appeals sureties.</p>

<p>1. Costs Discretionary in Equity. It being within the discretion of the Appellate Division to modify a judgment in an equity action by making it with instead of without costs, such a modification is not reviewable in the Court of Appeals.</p> <p>2. Reformation or Instrument—Essential Facts. To support a judgment reforming an instrument there must be findings of fact to the effect that the instrument does not express the agreement of the parties, and that the occasion for its failure in that respect was due either to a mutual mistake of the parties, or to a mistake by one party and fraud on the.part of the other; and in the absence of such findings a reversal upon the law is warranted</p> <p>3. Construction of Instrument. When the substantial purpose of an action is to reform an instrument, and that purpose fails, the plaintiff is not entitled to a judicial construction of the instrument holding that as originally drawn its meaning is the same as it would have been had it been reformed.</p>

18, entered upon a verdict directed by the court, and ordering a new trial. The nature of the action and the facts, so far as material, are stated in the opinions, This appeal from the order of the Appellate Division granting a new trial on exceptions is well taken, as only questions of law are involved. (Code Civ. Pro. §§ 190, 191, 1337; Williams v. D., L. & W. R. R. Co., 127 N. Y. 643 ; Cooke v. U. Mfg.

<p>1. Mandamus—Refusal, on Ground of Laches, of Writ to Reinstate Teacher in New York City Public Schools. Where, after the refusal of renewal of license to a teacher by the New York city superintendent of schools has been declared unlawful by the state superintendent of public instruction, an application for a mandamus to compel the city board of education to pay the amount of the relator’s salary as teacher has been denied, with an indication that he has an adequate remedy at law to recover his salary if legally entitled thereto, the prosecution of unsuccessful appeals affords no adequate excuse for a delay of six years in applying for a peremptory mandamus to compel the board of education to reinstate the relator in the position of teacher; and if is competent for the court, in the exercise of its discretion, to refuse the writ, because of sach delay in applying for it.</p> <p>2. Appeal—Discretionary Refusal of Mandamus. The Court of Appeals is not at liberty to review an order refusing a writ of peremptory mandamus, where, even if a case was made out in which a peremptory writ might have been issued, the court below had a discretionary power upon the facts to refuse it.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, made October 31, 1898, reversing an order of the court at Special Term, which denied an application for a peremptory writ of mandamus requiring the clerk of Queens county to accept and lile as of the 14th of October, 1898, the certificate of nomination of James Norton as candidate for the office of senator for the second senatorial district, and granting the writ.</p> <p>The facts, so far as material, are stated in the opinion.</p>

<p>1. Court of Appeals—No original Jurisdiction—Registration of Attorneys. The Court of Appeals has no power, on original motion, to order the filing nunc pro tunc of an attorney’s oath for the purpose of registration under chapter 165 of the Laws of 1898.</p> <p>2. Clerk of the Court. The duty imposed upon the clerk of the Court of Appeals by the act for the registration of attorneys is independent of the court, and with regard to these duties he should be treated as an independent public officer.</p>

an order of the late General Term of the Supreme Court in the first judicial department, entered January 26, 1895, sustaining the plaintiff’s exceptions and ordering a new trial in a case where a verdict was directed for the defendant, and the exceptions were ordered to be heard in the first instance at General Term. The facts appear in the opinion.

This action was brought to recover $1,453.68 and interest, alleged in the complaint to be due for cold storage' service rendered by the plaintiff to the defendant. The defendant alleged as a counterclaim that the services rendered were worthless because of the plaintiff's neglect, and that he had been damaged to the amount of $2,000, for which he demanded an affirmative judgment. Further facts are stated in the opinion.

Appeal, by permission, from a judgment of the Appellate Divison of the Supreme Court in the second judicial department, entered April 28, 1898, upon an order affirming a judgment in favor of the respondent, entered upon a decision of the court sustaining his demurrer to the plaintiff’s complaint and dismissing the complaint as to him on trial at Special Term.

The facts, so far as material, are stated in the opinion. The relator’s business in this state, other than manufacturing, was solely foreign commerce. (People ex rel. v. Campbell, 139 N. Y. 68; People ex rel. v. Roberts, 27 App. Div. 455.) The tax, in so far as it is based upon the capital stock of the relator employed in foreign commerce, is forbidden by the Federal Constitution. (Const.

The facts, so far as material, are stated in the opinion. It is essential to the determination of the questions here presented to ascertain the legislative intent. (Matter of Dobson, 146 N. Y. 357; Stack v. City of Brooklyn, 150 N. Y. 335; People v. Jaehne, 103 N. Y. 182; People ex rel. v. Lacombe, 99 N. Y. 43 ; Coutant v. People, 11 Wend. 511; Warner v. Beers, 23 Wend. 103; People v. Purdy, 2 Hill, 31; S. A. R. R. Co. v. G. E. R. R. Co., 3 Abb. [N. C.] 372; Blake v. Nat.

The facts, so far as material, are stated in the opinion. Mandamus is the proper remedy. (People ex rel. v. Sutton, 88 Hun, 173.) Under the Greater Hew York charter there is no such public office as that of water registrar, either in the main office of the commissioner of water supply, or in any of the branch offices.

The nature of the action and the facts, so far as material, are stated in the opinion. The mayor had no power to remove the relators. (People ex rel. v. Feitner, 30 App. Div. 241; 156 N. Y. 694; C. T. T. Co. v. K. C. R. R. Co., 154 N. Y. 495 ; N. Y & B. S. M. & L. Co. v. City of Brooklyn, 71 N. Y. 580 ; 8 Hun, 37; Mayor, etc., v. T. Nat.

The nature of the action and the facts, so far as material, are stated in the opinion. Leaving out of view the form of the security delivered by the defendants to. the executors at the time of making such advance, the plaintiff as executor would be entitled to recover for the estate the money so advanced, whether the action be regarded as one to recover money loaned or to reclaim money illegally disposed of.

The plaintiff, the survivor of his deceased partner, Charles TJtting, brought this action to recover a balance tliat he alleged was due upon a contract entered into between the firm of Weston & Utting and the city of Syracuse for the construction of what is generally known as the Kennedy street sewer.

The nature of the action and the facts, so far as material, are stated in the opinion. The only land in which plaintiff claims dower is a public street, and such land is not subject to dower.

<p>1. Appeal—Non-availability of Exception to Denial of Motion to Dismiss Complaint at Close of Plaintiff’s Case. An exception to the denial of a motion for the dismissal of the complaint at the close of the plaintiff’s case is not available in the Court of Appeals to present the question of law that there is no evidence to support the verdict, where the defendant, after the denial of the motion, proceeded with his case and went to the jury without having renewed the motion to dismiss at the close of the whole evidence.</p> <p>3. Waiver of Exception to Denial of Motion to Dismiss Complaint. When a defendant, at the close of the plaintiff's evidence, moves to dismiss the complaint, and, the motion being denied, excepts to the ruling and then proceeds with his case and puts in evidence on his part, he thereby waives the exception.</p> <p>3. Concession of Question for Jury. A defendant, by failing to move for a dismissal of the complaint, concedes that there is a question for the jury.</p> <p>4 Stockbroker and Customer — Evidence as to Exercise of Alleged Discretionary Power of Purchase. Where, in an action by a customer against his stockbroker to recover an alleged balance of account, the defendant claims a general discretionary power to make purchases for the plaintiff, and has given evidence tending to show a wise exercise of his alleged discretion in making a purchase which the plaintiff claims to repudiate, it is competent for the plaintiff to introduce proof tending to a contrary conclusion, such as proof that the securities purchased were behind a large bonded indebtedness.</p>

In August, 1878, one John G-. Latimer executed his bond with a mortgage on a lot and building on Atlantic street, Brooklyn, to secure the sum of $18,000 borrowed by him. The plaintiff subsequently acquired that bond and mortgage. In 1884 Latimer died intestate, seized of the mortgaged premises, leaving a widow and four brothers (the three defendants and one James D. Latimer), his only heirs at law. Letters of administration were issued on the estate of John G-.

<p>Appeal from a judgment of the late General Term of the Supreme Court- in the fifth judicial department, entered December 26, 1895, affirming a judgment of the Special Term sustaining a demurrer to the complaint.</p> <p>The nature of the action and the facts, so far as material,, are stated in the opinion.</p> <p>There is no defect of parties plaintiff. (Anderton v. Wolf, 41 Hun, 572; Littell v. Sayre, 7 Hun, 485 ; Wing v. Bull, 38 Hun, 291; Jones v. Felch, 3 Bosw. 63.) The complaint states facts constituting-a cause of action. (Matter of N. Y., L. & W. R. Co., 105 N. Y. 89 ; Vanderzee v. Slingerland, 103 N. Y. 47; Mead v. Maben, 131 N. Y. 255; Benson v. Corbin, 145 N. Y. 359 ; Mullarky v. Sullivan, 136 N. Y. 227; Matter of Denton, 137 N. Y. 428; Fowler v. Ingersoll, 127 N. Y. 472; Becker v. Becker, 22 App. Div. 234; Chapman v. Moulton, 8 App. Div. 64; Matter of Baer, 147 N. Y. 348.) This action is properly brought if the plaintiffs have an interest under the will. (Smith v. Van Ostrand, 64 N. Y. 278; Trustees, etc., v. Kellogg, 16 N. Y. 83.)</p> <p>The will gave to the daughter of the testator the fee in the real estate and the absolute ownership of the personal property, subject to being defeated by the death of the daughter without lawful issue before becoming of age. (1 R. S. 729, §§ 58, 59.) Where there is a testamentary gift to one person and in case of that person’s death without issue then to- others, the contingency referred to is the death of the first taker in the lifetime of' the testator. (Quackenbos v. Kingsland, 102 N. Y. 128 ; Stokes v. Weston, 142 N. Y. 433; Washbon v. Cope, 144 N. Y. 287; In re Tienken, 131 N. Y. 391; Banzer v. Banzer, 156 N. Y. 429.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. When, as in this case, the trust is being administered by the Supreme Court, actions by or against the deceased trustee, as such trustee, can and should be continued by or against the new trustee.

<p>1. Appeal — Presentation op Question whether Case should not have been Submitted to Jury. When the defendant has requested to go to the jury upon the facts and the request has been denied, although the record discloses no exception to the denial, an exception noted to the subsequent direction of a verdict for the plaintiff suffices to raise on appeal the question of law whether the material facts in the case should not have been submitted to the jury.</p> <p>2. Vendor and Vendee — Action por Price op Stationary Engine —• Question as to Place op Erection Brought into Case by Plaintiff. Where, in an action by the vendor against the vendee, for the price of a stationary engine set up in place, claimed by "the vendee to have proved unsatisfactory because erected upon an improper foundation, the plaintiff gives evidence to prove that the defendant was to provide a suitable place for the engine, such evidence introduces into the case the question whether it was the understanding of the parties that the place was to be provided for by the defendant, or whether that was left to the plaintiff to see to; and if the plaintiff’s evidence on the question is contradicted, a question of fact is raised.</p> <p>3. Question as to Foundation por Engine. When the plaintiff in such an action has admitted into -his case, and rendered material, the question whether the defendant was.to provide the foundation for the engine to be erected upon, it is not incompetent for the defendant to show, in defense, that it was not proper for the plaintiff to erect the engine without knowing something about the floor upon which it was to stand.</p> <p>4 Case por Submission to Jury. When the real question, in an action for the price of a stationary engine set up in place, is whether the vendor did or did not undertake anything as to a foundation for the engine and whether, if he did so undertake, he properly performed his undertaking, and there is conflicting evidence on the question, the case should go,to the jury.</p> <p>5. Damages Chargeable to Vendor. If the vendor of an engine, under a contract requiring him to furnish it set up in place, suffers the engine to be erected upon an inadequate and improper foundation, when a word of advice to the vendee might have caused the latter to provide a proper place, then the vendor should fairly be held responsible for any consequent damage which was a direct result.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. It was error to admit the evidence of services and transactions not included in the plaintiff’s bill of particulars. (Mathews v. Hubbard, 47 N. Y. 429 ; Higenbotam v. Green, 25 Hun, 216 ; Bowman v. Earle, 3 Duer, 691; Brown v. Williams, 4 Wend. 368; Dwight v. G. L. Ins.

This was an action to foreclose a mortgage. The facts, so far as material, are stated in the opinion. The judgment of the Court of Appeals is a bar to recovery in this action. It is not claimed that it is a bar upon the ground of res adjudicata, but by virtue of the stipulation given by the plaintiff in the former action.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff failed to bring himself within the terms of his own contract, and any evidence of directions to perform extra work or its value was' improperly admitted. (Smith v. Briggs, 3 Den. 73; Reilly v. Lee, 41 N. Y. S. R. 559; Byron v. Low, 109 N. Y. 291; D. & H. C. Co. v. P. C. Co., 50 N. Y. 250.)

This action was brought to recover upon promissory notes given to the plaintiffs by the defendants on account of lumber, and also to recover a balance alleged to be due upon the account for the lumber, for discounts paid upon the paper and for money paid for freights. The facts, so far as material, are stated in the opinion.

The facts, so far as material, are stated in the opinion. The board of water commissioners of the village of Plattsburgh cannot issue bonds under the G-eneral Municipal Law of the State of New York (Ch. 685, L. 1892) and the several acts amendatory thereto and thereof.

<p>1. Criminal law — Conspiracy.</p> <p>A conspiracy by two or more persons for the perversion or obstruction of justice or of the due administration of the laws is indictable.</p> <p>2. Same.</p> <p>An agreement does not amount to a conspiracy, unless some act besides such agreement be done to effect the object thereof by one or more of the parties to such an agreement.</p> <p>3. Indictment—Sufficient.</p> <p>An indictment is now good if it contains sufficient averments to inform the defendant of the nature of the accusation against him and enables him to prepare his defense, and when the record may be admitted as a bar to a second prosecution for the same offense.</p> <p>4. Same.</p> <p>An indictment is sufficient if it can be understood therefrom that the act or omission charged as the crime is stated with such a degree of certainty as to enable the court to pronounce judgment, upon a conviction, according to the right of the case.</p> <p>5. Same.</p> <p>No indictment is insufficient by reason of an imperfection in matter of form which does not tend to the perjudice of the substantial rights of the defendant. Neither presumptions of law, nor matters of which judicial notice is taken, need be stated in the indictment.</p> <p>•6. Same.</p> <p>Inasmuch as the indictment for conspiracy would not be sufficient without alleging one or more overt acts in furtherance of the conspiracy, the general charge and the specific overt acts must be read together.</p> <p>7. Criminal law—Conspiracy.</p> <p>The defendants cannot be convicted of conspiracy unless proof is given on the part of the People sufficient to establish to the satisfaction of the jury one or more of the specific overt acts charged.</p> <p>8. Same.</p> <p>A public officer having charge of the disbursement of public money in a great city for public works, who enters into an agreement with a private party to the effect that he will violate the law and omit or neglect to interpose the legal safeguards which have been placed in his hands for the protection of the city and the contractors, in order to enable his co-conspirators to levy tribute upon the contractors, may be indicted for a conspiracy to pervert and obstruct the due administration of law.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. To sustain a plea of a former judgment in bar it must appear that the cause of action in both suits is the same, or that some fact essential to the maintenance of the second suit was in issue in the first action and was decided adversely to the plaintiff.

Motion by the defendant the East River Bridge Company to revive and continue in the names of the plaintiff’s executors an action pending on appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered April 14, 1897, affirming a judgment in favor of defendants entered upon a decision of the court dismissing the complaint upon the merits on trial at Special Term.

The facts, so far as material, are stated in the opinion. The burden of showing exemption from taxa-' tion is upon the party claiming such exemption, since all property is liable to taxation unless exempted by law. (People ex rel. v. Peck, 157 N. Y. 51.) The Tax Law, neither in terms nor by necessary implication, exempts personal property otherwise liable to taxation, by reason of the fact that it is on deposit in a bank for savings.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department entered December 10, 1898, affirming an order which denied the defendant’s motion to change the place of trial of this action from Westchester county to the county of Hew York. The question certified for review and the facts, so far as material, are stated in the opinion.

<p>1. Certiorari—Function of Common-law Writ. A commonrlaw writ of certiorari may be issued to review the judicial determinations of inferior tribunals and officers acting judicially under the authority of a statute, to correct errors of law affecting the property or rights of the parties.</p> <p>'2. Railroads—Consent by Railroad Commissioners to Discontinuance of Station, Involving Judicial Action. The state board of railroad commissioners acts judicially in consenting, under the power conferred upon it by the Railroad Law (L. 1890, ch. 565, amd. L. 1892; ch. 676), to the discontinuance of a station by a railroad company, as a result of a contested proceeding, to which the interested citizens, as well as the company, were parties, and which involved the determination, by the board, of the question of fact between convenience to the public and inconvenience to the company, and the exercise of judgment upon the evidence in determining whether the consent should be given or not.</p> <p>3. Judicial Action of Railroad Commissioners Subject to Review by Certiorari. The proceedings of the state board of railroad commissioners in consenting, through the exercise of judicial action, tó the discontinuance of a station by a railroad company, are subject to review by certiorari.</p> <p>4. Railroad Commissioners without Power over Contracts— Contract as Evidence. Although the state board of railroad commissioners has no power to enforce or set aside contracts, it may properly receive in evidence, in a contested proceeding for consent to discontinue a station, a contract between certain citizens and the railroad company, under which subscriptions to the station building and approaches were made and paid in consideration of the company’s stopping its trains there for passenger purposes.</p> <p>5. Appeal—Effect of Unanimous Affirmance of Determination Involving Question of Fact. Where a determination made by the state board of railroad commissioners, involving a question of fact, has been affirmed unanimously by the Appellate Division on certiorari, the Court of Appeals has no power to review, when no question is raised that is not necessarily determined by the decision of the question of fact.</p>

This action was brought to set aside two local assessments upon the lands of the plaintiff. The facts, so far as material, are stated in the opinion. The referee erred in maintaining the suit to review and annul the assessment made under the act of 1895.

The nature of the action and the facts, so far as material, are stated in the opinion. Where a party has no better or other defense than the Statute of Limitations, it should, at least, both upon the law and the facts, establish that defense with reasonable clearness and certainty. (Corkings v. State, 99 N. Y. 495.) The plaintiff never had a cause of action for the conversion of this stock.

The object of this action was to restrain the defendant from diverting any water from South brook, so called, upon the premises of the plaintiff, and from diverting more than one-tenth of the water from Kirkland Glen brook, so called, also upon the premises of the plaintiff.

Appeal by the defendants, Bullís and Barse, from an order and judgment of the Appellate Division of the Supreme Court in the first judicial department, entered, respectively, May 13 and 14, 1896, denying a motion for a new trial on exceptions and affirming the judgment of the Special Term. The nature of the action and the facts, so far as material, are stated in the opinion. See, also, report of the case upon a former appeal by the defendant corporation, 151 E. Y. 372.

This action was brought by the plaintiff as a stockholder of The Brooklyn City Railroad Company to set aside a lease made by it to The Brooklyn Heights Railroad Company, to compel the retransfer of all the property that passed under the lease and for an accounting by the lessee to the lessor.

The facts, so far as material, are stated in the opinion. The claims of the employees accrued under chapter 376 of the Laws of 1885, and should be preferred.

<p>1. Indictment—Fraudulent claim.</p> <p>An indictment, under § 672 of the Penal Code which alleges the presentation of the claim, the facf that it was false and fraudulent, and known to be so by the defendant when he presented it, that various of the items contained in the bill for which the defendant charged were entirely fictitious to the knowledge of the defendant, contains a full statement of all the facts necessary to constitute the offense.</p> <p>3. Fraudulent claim—Proof .</p> <p>In such case, it is, of course, incumbent upon the prosecution to show, to the satisfaction of the jury, that the defendant knowingly presented' or caused to be presented, a false and fraudulent bill for audit to an officer authorized by law to audit and allow the same.</p> <p>3. Coroner—Inquest.</p> <p>In order to constitute an inquest within the meaning of the law, a jury need not be impaneled; a mere inquiry by the coroner himselt, or any one acting under his authority, with reference to the cause of death, constitutes an inquest within the scope and meaning of the statute and the resolution of the board of supervisors prescribing the fees or compensation of coroners. ■</p> <p>4. Same.</p> <p>A coroner’s inquest means a judicial Investigation into the cause of death by a coroner, with the aid of a jury, and hence the fee for an inquest could not properly he charged unless a jury had been impaneled to determine the cause of death.</p> <p>5. Same—False inquest papers.</p> <p>False and fictitious inquest papers, made up by a coroner’s clerk and retained in the defendant’s public office for the purpose of being filed with the county clerk at some future time, are not private papers of the coroner but public records. Their production under a subpoena to their custodian in the coroner’s office, calling for public documents, is not a violation of the defendant’s constitutional rights.</p> <p>6. Fraudulent claim—Proof.</p> <p>Where the fraudulent bill described in the indictment was presented to the auditor by the defendant’s clerk, and it could not be shown that he personally presented the bill, it is competent to show that he had received the proceeds.</p> <p>7. Appeal—Harmless error.</p> <p>When technically inadmissible evidence, admitted on a criminal trial, apparently did not affect the case or prejudice the defendant, the error is to he disregarded on appeal.</p>

<p>1. Criminal law—Court op appeals.</p> <p>On the review of a conviction of murder in the first degree, where the defense of insanity is interposed, the verdict is conclusive upon that issue, in the absence of such elements from the case as show that the verdict was against the weight of evidence, or that it was influenced by some mistake, error or prejudice.</p> <p>2. Same—Cross-examination.</p> <p>A cross-examination is within the discretion of the trial judge, and each case rests largely upon its own facts.</p> <p>3. Same—Disparaging questions.</p> <p>The court in its discretion may exclude disparaging questions put to a witness on the cross-examination not relevant to the issue, though ■ avowedly for the purpose of discrediting him, even if no claim or privi. lege be interposed; and such ruling is not reviewable on error unless the discretion be manifestly abused.</p> <p>4. Same—Irrelevant topics.</p> <p>Inquiries on irrelevant-topics to discredit the witness, and to what extent a course of irrelevant inquiry may be pursued, are matters committed to the sound discretion of the trial court. The exercise of this discretion is not the subject of review except in case of plain abuse and injustice.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. Plaintiff has a good title as heir of his son. (Heath v. Hewitt, 127 N. Y. 166; Scott v. Guernsey, 48 N. Y. 106; Heard v. Horton, 1 Den. 165; Vannorsdall v. Van Deventer, 51 Barb. 137; Wood v. Taylor, 9 Misc.

This action was commenced on the 12th of December, 1894, to foreclose three mortgages given to the plaintiff by Charles A. Foster upon his dwelling house in the village of Glens Falls. The first, dated December 22, 1891, was collateral to a bond in the penalty of $l4,000, conditioned for the payment of $7,000, and interest, in one year from date.

October 16, 1888, the Adams Furniture and Manufacturing Company, Limited, was incorporated under chapter 611 of the Laws of 1875 and the acts amendatory thereof and supplementary thereto for the purpose of manufacturing and selling furniture, having its office and principal place of business at the village of Adams, N. Y. It started with a capital stock of $20,000, divided into shares of $100 each.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff was erroneously permitted to show the negotiations and terms of the prior contracts in February and April.

The nature of the action and the facts, so far as material, are stated in the opinion. The dismissal, though purporting to be upon the merits, was in fact a nonsuit. The evidence was such that a nonsuit was error.

This action was brought to recover an alleged unpaid balance due the plaintiff upon his contract with the defendant for the construction of a public sewer, and also to recover for certain items of alleged extra work. The facts, so far as material, are stated in the opinion.

' This action was brought to recover, as damages for its dishonor, the amount of a letter of credit issued by the defendants in favor of the plaintiff, together with the protest fees thereon. The facts, so far as material, are stated in the opinions. The defendants are not liable for the refusal to accept plaintiff’s draft.' They never promised that it should be accepted. (2 R. S. ch. 4, tit. 2, § 6; Loonie v. Hogan, 9 N. Y. 435; Woods v. Wilder, 43 N. Y. 164; S. Nat.

The nature of the action and the facts, so far as material, are stated in the opinion. The court below erred in dismissing the complaint as to the first and second causes of action. (Schmittler v. Simon, 114 N. Y. 176 ; Morrill v. C. T. S. Mfg.

Also, motion to dismiss the appeal from the order, upon the grounds that the appeal is frivolous and vexatious, and that the Court of Appeals has no jurisdiction to entertain it.