Volume 12 — New York Supplement

Action by John W. Haulenbeck and others against Gerhard Coenen and others in which an attachment was issued against the property of defendants, who now appeal from an order denying their motion to vacate such attachment.

<p>Appeal from trial term.</p> <p>Action by Myron C. Rush against Arnold B. Wagner. There was judgment for plaintiff, and defendant appeals.</p>

Action by Edward Myers against the Metropolitan Elevated Railway Company and the Manhattan Railway Company.

<p>On the settlement of the accounts of the executors of Buel Maben, deceased.</p>

Proceedings by the executors of Sarah J. Mapes, deceased, for the discovery of property belonging to her estate, and alleged to be withheld by the administrator of John S. Mapes, deceased.

<p>Action by Frank Work and others against Miles Beach. See former decision, 6 N. Y. Supp. 27.</p>

Action by Amelia Vredenburgh against the Hew York Central & Hudson Biver Bailroad Company for personal injuries received by plaintiff, a woman 55 years of age, while alighting from defendant’s train.

Action by Cyrus J. Marshall against Mary E. Reynolds and Ira C. Reynolds, her husband, to foreclose a mortgage by defendants to Titus Reynolds, father of defendant Ira C. Reynolds, of land previously conveyed by said Titus Reynolds to defendant Mary E. Reynolds, which mortgage was assigned by said Titus Reynolds to plaintiff. From a judgment for plaintiff on trial by the court without a jury, defendants appeal.

Action of ejectment by the mayor, aldermen, and commonalty of New York against Mary Wright, to recover possession of- land alleged to have been acquired by that city for a storage reservoir for the new aqueduct, under Laws N. Y. 1883, c. 490. From a judgment for .plaintiff on trial by the court without a jury, defendant-appeals.

Certiorari on the relation of John M. Sammis to the board of supervisors ■of Queens county to review an order of the board appointing special commissioners to lay out a highway in the village of Oyster Bay, through premises of relator, on which orb buildings used for purposes of trade. 2 Rev. St. N. Y. (7th Ed.) pp. 1238, 1239, § 57, providing that “no public or private road shall be * * * laid out through any buildings, * •* * without the consent of the owner, ” was…

Action by the Diamond Brick Company against the Hew York Central & Hudson River Railroad Company for damages for the killing of plaintiff’s horse by defendant’s locomotive on the West Shore Railroad, leased and operated by defendant.

Action in the name of the people of the state against Emma Fishbough for a statutory penalty. From a judgment for plaintiff on a trial by the court, a jury having been waived, defendant appeals.

Action by John Power, as executor of Bernhardine, known as “Dina,”. •Overbeck, deceased, against Gertrude Bermester, John Speekman, and Meta Towsma, on a bond given by said Gertrude Bermester as administratrix, on which the other defendants were sureties. From a judgment for plaintiff Tendered on a trial by’the court without a jury, defendant Speekman appeals.

Action by Thomas Taylor against the village of Mount Vernon, for damages for personal injuries. From a judgment for plaintiff entered on the report of a referee appointed by consent, defendant appeals.

Action by James McNutt against William Shafer, originally commenced in the city court of Albany, to recover one quarter’s rent of a farm. On appeal to the county court, a verdict was directed for plaintiff for the full amount claimed, and defendant appeals.

Action by George W. Didsbury against J. Wesley Van Tassell, as sheriff of Dutchess county, for the escape of a prisoner who was in custody of defendant on execution against the person at the suit of plaintiff, and who had given bond for the jail liberties. From a judgment for defendant, entered on the verdict of a jury, plaintiff appeals. For appeal by defendant from an order refusing to set aside service of the summons see 10 N. Y. Supp. 32. Code Civil Proc.

<p>Injury to Minor Employe.</p> <p>In an action for injuries received by a boy, 15 years of age, while operating defendant’s machine, there was no direct proof that the machine was .out of order, and it appeared that the machine had been operated by the boy about three months prior to the accident, and was of the kind ordinarily in use in other similar manufactories. Meld, that a nonsuit was properly ordered.</p>

<p>Specific Performance—Sufficiency of Contract.</p> <p>F._, owning a hotel and farm known as the “Lake View Hotel Property, ” and adjoining property known as the “An Sable Chasm, ” negotiated personally and through brokers to convey the hotel property, and lease the other property, in exchange for land of D. After both parties had examined the other’s property, F. made the following proposition: “I will exchange the Lake View property, meaning thereby in good faith all, without further detail, of real and personal property now in use or existing, and so called heretofore, when negotiating for the Fifth avenue, Gates avenue, and Patchen avenue properties, as heretofore spoken of, ail properties to be mortgaged as spoken of, i. e., 25,000,10,000, & 12.000, respectively, for the New York properties, and said hotel property to be given with §10,000 in all only upon it, including what is now thereon or given up to make up §30,000, by Mr. D. P. S. Of course it is included in the above that, as to Chasm, all is, as already supposed, assented to,—lease 5 years, at §3,000, and 500 additional yearly, etc. ” D. wrote under such proposal: “I hereby accept. D. ” On the same day F. wrote D. that he had not attempted to go into formal detail, but meant it merely to be “what, in effect, I already stated to you. ” After ail the necessary papers had been prepared, F. refused to perform. Held, that the contract was sufficiently definite, and should be specifically enforced. Mayham, J., dissenting.</p>

Action by Sarah M. Wilson against Debby Ann McGregor. At the trial, the jury found a verdict for plaintiff for $45. Costs of the action having been taxed by the clerk in favor of defendant, such taxation was, on motion of plaintiff, vacated, and costs taxed in favor of plaintiff for $45, the amount of her recovery. From the order entered thereon, defendant appeals. Code Civil Proc.

Action upon an undertaking of bail against Frederick R. Gillman, the surety therein. The undertaking was a printed form, and the blank space therein for designating the crime was not filled in. At the trial, testimony was admitted that such omission was unintentional and accidental, and that the purpose of the undertaking was fully explained to the surety at the time he signed it. From a judgment for plaintiff, defendant appeals.

<p>Intoxicating Liquors—Illegal Sales—Clubs.</p> <p>The delivery of intoxicating liquor, the property of the club, by an officer of the club, to a member, and payment therefor by the latter, constitute a sale of the liquor, within the NewYork statute forbidding such sale without a license. Following People v. Andrews, 32 N. E. Rep. 358, 115 N. Y. 427.</p>

<p>Appeal from court of sessions, Suffolk county.</p> <p>Indictment against the Long Island Railroad Company for a misdemeanor. "From a judgment of conviction, defendant appeals.</p>

Action by Henry T. Duryea against William H. Andrews and George H„ Andrews for conversion of a horse. Defendants pleaded the statute of limitations of six years. It appeared that the horse was stolen from plaintiff in or before the year 1878, and in that year came into defendants’ possession. In 1889, plaintiff learned that defendants had the horse, and made a demand that they turn it over to him; and thereafter brought this action.

Habeas corpus on the relation of Thomas H. Trafford against his wife, Elizabeth Trafford, to obtain possession of their daughter Lucy, of the age of' Qve years.

Action by John Borley against Wheeler & Wilson Manufacturing Company to recover for services performed as a canvasser. There was judgment for plaintiff, and defendant appeals.

<p>J. Intoxicating Liquors—Criminal Prosecution—Complaint.</p> <p>A complaint alleged that defendant had no license to sell either strong liquor or beer, and, on information and belief, that, at a certain time and place, he did sell intoxicating drifik; and several witnesses made affidavits, in support of the complaint, that defendant sold them lager beer which was intoxicating. Meld, that this was sufficient to give jurisdiction to a justice, and to sustain a warrant of arrest for the misdemeanor charged.</p> <p>9. Same—Evidence.</p> <p>Upon a complaint charging sales, without license, of intoxicating liquor and ale, there was evidence of sales of lager beer to several persons, and that-it was intoxicating if one drank enough of it. Meld, that there was sufficient proof of its intoxicating quality to be submitted to a jury.</p> <p>3. Same.</p> <p>A complaint charging sales, without license, of intoxicating liquors and ale, at a certain time and place, was supported by affidavits of persons to whom the drink was sold. Meld, that this did not preclude the admission of testimony of others, at the trial, to sales made to them at the place and within the time alleged.</p> <p>A. Same—Sentence.</p> <p>Upon a conviction, in a court of special sessions, on a complaint for selling intoxicating liquor in less quantity than five gallons without a license, the court sentenced the defendant to pay a fine of $50 and imprisonment for 30 days. Meld, that this was authorized by Code Crim. Proc. N. T. | 717, giving such courts power to pender judgment, oh conviction, “of fine or imprisonment, or both, as the case may require; ” the fine not to exceed $50, nor the imprisonment 6 months.</p>

Action by Fred Scheidig against Edward H. Bemis and Marion E. Bemis, brought upon a promissory note made by the defendants, payable to the order of the plaintiff, for the “sum of eighty-five dollars and fifty-eight cents, with three years’ interest at six per cent., at the First National Bank of Glens Falls, N. Y., one year from the date of said note.” The answer of the defendants does not deny any allegation of the complaint, but sets up a plea of usury, alleging that…

Mandamus on the relation of Abram J. Miller against Hillyer Ryder, as county treasurer of the county of Putnam. From an order directing the issue-of a peremptory writ, respondent appeals.

See decision on the original hearing, 10 N. Y. Supp. 799. Code Civil Proc.

Petition by William L. Denton, surviving executor of Amos Denton, deceased, for a judicial settlement of his accounts as such executor. From the decree of the surrogate thereon, the surviving residuary devisees appeal.

Action by Robert E. Smith against Theresa B. Collins and others to fore■close a mechanic’s lien for material furnished by plaintiff under a contract with said defendant Collins. From a judgment for plaintiff, on trial by the •court without a jury, defendants appeal.

Action by Washington Bulkly against Catharine Healy, to foreclose a mechanic’s lien. Defendant set up a counter-claim. On trial by the court without a jury, the counter-claim was allowed, and judgment was rendered for plaintiff for the amount found due him in excess of the counter-claim.' From' so much of the judgment as allowed such counter-claim, and from an order resettling the judgment and correcting an error therein, plaintiff appeals.

Action by Charles Hardy against the Hew York Central & Hudson River Railroad Company for damages for the ejection of plaintiff from defendant’s railroad train. From a judgment for plaintiff entered on the verdict of a jury, and an order denying a motion for a new trial, defendant appeals.

<p>1. Arbitration and Award—Dorm of Award.</p> <p>Upon a submission of a question whether a bill, referred to in the submission, was due from defendant to plaintiff, the arbitrators rendered an informal decision that plaintiff was entitled to payment, and on the same day acknowledged and delivered to plaintiff a formal decision stating the amount due him. being the amount of the bill referred to. Held, that there was but one award, and it was sufficient to sustain a judgment.</p> <p>3. Same—Oath of Arbitrators.</p> <p>One of the parties to an arbitration had prepared an affidavit, presumably an oath of office, but on the arbitrators saying that they would swear to their report, he tore it up, and the hearing proceeded without dissent or further request for an oath of office. Held, that the arbitrators’ oath was waived.</p>

Action by James B. Swain against Samuel M. Pettengill. From an order that said defendant and one A. J. Dwinelle be examined, and tlieir depositions taken, and an order denying a motion to vacate said order, defendant ■appeals. Code Civil Proc.

Application by William Emmeltith, an insolvent debtor discharged from his debts, to cancel and discharge of record two judgments recovered against him by Thomas Wheeler. The application was opposed by Obed Wheeler, administrator of said Thomas Wheeler, who had deceased before the proceedings in insolvency. From an order directing the cancellation and discharge of the judgments, the administrator appealed.

Action by Joseph Woerman, one of the devisees under the will of William Bouthrop, deceased, against Berend Baas, executor of said will, and others, co-devisees with plaintiff for partition. A motion by defendant Berend Baas that plaintiff’s attorney be required to produce evidence of his authority to-bring the action, and that, on his failure to do so, the action be dismissed, was denied. From the order denying the motion, said defendant Baas appeals.

Action by Alexander M. Hunter against Clara L. Walter .and another to foreclose a mechanic’s lien.

Action by James H. Moran against the village of White Plains and John O. Merritt.

Application by William T. Byrnes to cancel certain taxes for omission ol the assessors to verify the assessment rolls, as required by statute. The defendant, Long Island City, relied on a subsequent act of the legislature passed to cure the defect. From an order granting the application, defendant appealed.

Application of Hannah M. Prout, widow of James D. Prout, deceased, for-ancillary letters of administration upon bis estate. Prom an order requiring, her to give bond thereon in a penalty double the amount of the personal property within the state, the petitioner appealed.

<p>1. Resettlement of Order.</p> <p>The decision on appeal reversed a judgment, and granted anew trial, “with costs to abide the event. ” The order entered thereon read: “With costs to appellant to abide the event. ” Meld, that the order should be resettled to conform to the decision.</p> <p>2. Appeal—Practice—Rehearing.</p> <p>A motion for reargument of an appeal, after a decision granting a new trial, will be denied, where nothing was overlooked, and there was no mistake as to any point.</p>

Action by Altha M. Wells, as administratrix of James Wells, deceased, against the Brooklyn City Railroad Company, for damages for causing the death of plaintiff’s intestate. From a judgment for defendant entered on the dismissal of the complaint at the trial, plaintiff appeals.

<p>Sale op Mortgaged Property—Liability op Vendee—Personal Judgment.</p> <p>An owner of land subject to a mortgage made by his grantor executed to the mortgagee a hand conditioned for the payment of the mortgage which provided that the mortgagee must first exhaust his remedy against the mortgaged premises. Subsequently the land was conveyed to defendant, who assumed the bond and mortgage as part of the purchase money. Held, that the obligation thus incurred by defendant did not inure to the benefit of the mortgagee so as to enable him to recover a personal judgment against defendant for a deficiency arising upon a sale of the property.</p>

Action by Sarah Frances Blake against Alfred C. Barnes and others, for the settlement of the estate of A. S. Barnes, deceased. For opinion on motion to make complaint more definite and certain, see 9 N. Y. Supp. 933.

At chambers. Action by Abraham L. North against Daniel Appleton, as colonel of the seventh regiment, first brigade, national guard of the state of New York, and Austin E. Allen, as captain of Company D of said regiment, to restrain defendants from executing a certificate of honorable discharge of plaintiff from said company D. Plaintiff alleged that he enlisted in said company on April 27,1888, for a term of five years; that defendants, without the request of plaintiff, and…

<p>1. Attachment against Non-Resident—Service by Publication.</p> <p>In an action in which an attachment had been granted against property of defendant, as a non-resident, an affidavit to obtain an order for service of the summons by publication averred that plaintiff would be unable, with due diligence, to make personal service within the state, because he could not be found therein, and resided in another state, where was his place of business. Held, that this was proof of inability to make personal service, sufficient to sustain the attachment on motion to vacate.1</p> <p>2. Writs—Service.</p> <p>After an order for service of a summons by publication, made under Code Civil Proc. N. Y. | 440, providing that service may be made by publication, as prescribed, “or, at the option of the plaintiff, * * * without the state, upon the defendant personally, ” etc., such personal service without the state is sufficient, without the publication and mailing of a copy of the summons.1</p>

Action by Mary Rudolph against Casper Rudolph for a separation. Plaintiff moves for an order to compel defendant to pay alimony awarded in a final decree of separation.

Action by Bosa Deigleman against the New York, Lackawanna & Western Railway Company to restrain defendant from maintaining certain ditches on its land, and to recover damages for causing the overflow of plaintiff’s land. Defendant’s railway runs easterly, crossing Military road at about 15 feet above grade.

<p>Action by Fred Busch and others against the New York, Lackawanna & Western Railway Company. The facts are stated in full in Deigleman v. Railway Co., ante, 83.</p>

<p>1. Fire Policy—Removal—Waiver.</p> <p>Under tbe provision of a policy of fire insurance that “no officer or agent of the company shall have power to waive any of its provisions * * * except such as may be indorsed thereon or added thereto, ” there can be no recovery for a loss occurring after a removal of the goods to a building on an adjoining farm, where the agent to whom the policy was delivered by assured, to procure the company’s consent to a removal, returned it without any indorsement, but informed assured that all proper formalities had been complied with.</p> <p>2. Same—Action on Policy—Amendment oe Complaint.</p> <p>In an action on a written policy of insurance, plaintiff cannot amend on the trial by declaring on a new and independent paroi contract of insurance by which the property was insured in another building.</p>

Settlement of the accounts of the administrator of William Smith, deceased. For reports of other proceeding in the matter of the estate of said decedent, see 4 N. Y. Supp. 467; 7 N. Y. Supp. 327,948.

<p>Action by Bobert Froese against William Prosnitz and others. The cause was tried by the court without a jury.</p>

Proceedings for the probate of the will of John Casper Koch, deceased. Code Civil Proc. N. Y. §§440, 2524, areas follows: “Sec. 440. The order may made by a judge of the court, or the county judge of the county where the •action is triable.

Proceedings for the probate of the will of Ann Elizabeth Potter, deceased. 4 Rev. St. N. Y. (8th Ed.) p. 2547, § 40, prescribes the mode in which wills shall be executed and attested as„follows: “Every last will and testament of real or personal property, or both, shall be executed and attested in the following manner: (1) It shall be subscribed by the testator at the end of the will.

<p>1. Wills—Construction—“Surviving Grandchildren.”</p> <p>A will gave each of testator’s grandchildren a legacy of $10,000, to be paid to them severally on attaining the age of 25 years; and, on the death of any of them under that age, the share oí such deceased was to be equally divided among the “surviving grandchildren. ” Held, that the share of a grandchild, dying under the age of 25, must be distributed among the grandchildren living at the time of testator’s-death, to the exclusion of after-born grandchildren.</p> <p>2. Same—Gifts by Implication.</p> <p>Testator directed that one-third part of his estate should be held in trust, and the income paid to his son, who was a widower, for the support of himself ana daughter. In case the daughter survived, one-half of the principal of the trust-estate was to be paid to her on attaining the age of 21, and the other half was to be equally divided among testator’s heirs at law. If the son died without issue, the entire trust-estate was to be divided equally among testator’s heirs at law. Testator further declared that in no event should-the principal of the trust fund ever be vested in the son, but that only the income should be paid him. Held, that the remarriage of the son, the birth of other children to him, and the death of the daughter referred to in the will under the age of 21, did not by implication entitle the son to any part of the principal of the trust-estate, as testator had clearly expressed hi» intention to the contrary.</p> <p>8. Same—Trusts—-Who may Attack Validity.</p> <p>Neither is the son in a position to attack the validity of the trust on the ground that owing to the death of the daughter under the age of 21, and the birth of children to him by the second marriage, no disposition is made by the will as to one-half of the principal. A valid disposition is made in case the son dies without-issue; and the court will not assume, for the purpose of overthrowing the trust, that the children by the second marriage, now living, will survive him.</p> <p>4. Executors and Administrators—Private Accounting—Commissions.</p> <p>Within the time usually allowed for the settlement of an estate, the executors of a will, at a private accounting with the legatees, made a distribution of the estate, retaining their legal fees for commissions. Held, that one of the executors, who had subsequently been discharged by the surrogate, and whose commissions had been then judicially allowed, could not be compelled to refund any part of them; but that the other executors, whose accounts had neverbeen judicially settled, were-chargeable with interest on the commissions received by them in advance of their allowance by the surrogate.</p> <p>5. Same—Personal Liability.</p> <p>After a legatee has accepted bank-stock as part of her legacy, the executors have-no right to buy it back with the funds of the estate, and they are personally liable for any subsequent depreciation in its value.</p> <p>6. Same—Interest on Uninvested Funds. "</p> <p>The executors are not liable for any interest on the funds of the estate during the time that they remained uninvested for lack of proper securities.</p>

<p>1, Attorney and Client—Lien—Settlement between Parties to Action.</p> <p>Where an action is settled by the parties thereto without the knowledge of plaintiff’s attorney, such attorney cannot under Code Civil Proo. N. Y. § 66, which provides that a settlement between the parties to an action shall not affect the attorney’s right to compensation, proceed with the action to collect his costs without the consent of the court.</p> <p>■3. Same—Leave to Prosecute Action.</p> <p>Such consent will be granted where by the terms of the settlement plaintiff was to pay her attorney, and it appears that the amount received by her in settlement was only $35, and that she has nothing out of which the attorney can collect his costs.</p>

Action by Mary P. Taggart against Mary G. Rogers and others, to redeem certain mortgaged real estate sold under a judgment in an action to foreclose the mortgage.

Petition of Francis A. Watson and Henry R. C. Watson for revocation of probate of the will of William Watson, the younger, deceased. From a decree confirming the probate, the petitioners appeal.

Appeal by Charles Hughes, James Hughes, and Eugene Hughes from an order of the Onondaga special term, November, 1889, appointing commissioners to ascertain and appraise the compensation to be paid the appellants for lands to be taken by the applicant.

Petition for probate of the will of Peter Paul Mahoney, by Edward D. Farrell, an executor named therein. From a decree refusing probate, the proponent appeals.

Action by Henry O. Havemeyer and others, constituting the board of trustees of the Sugar Refineries Company, (Sugar Trust,) against the Brooklyn Sugar Refinery and the other companies forming the “Sugar Trust,” which had theretofore been adjudged illegal, (People v. Sugar Refining Co., 3 N. Y. Supp. 401, affirmed by the general term of the supreme court in 7 N. Y. Supp. 406, and by the court of appeals in 24 N. E. Rep. 834,) and certain holders of “trust” certificates.

Action by Jane E. Merritt against John W. S. Gouley and others. From an order denying a motion by plaintiff to strike out part of the answer of said defendant Gouley as sham and irrelevant, and for judgment on said answer as frivolous, plaintiff appeals.

At chambers. Action by Joseph M. Harding against Joseph W. Fiske, John M. Fiske, and the J. .M. Harding Manufacturing Company, to have declared void certain judgments, by default, obtained by Joseph W. Fiske against the J. M. Harding Manufacturing Company in actions on promissory notes alleged to have been given to said Joseph W. Fiske through John M. Fiske, treasurer of said company.

Action by Harmon H. Hart against Theodore W. Myers and Edward H. Myers for an accounting of the partnership business of the firm of Theodore W. Myers & Co., which firm was composed of the parties to the action. Before Hamilton Odell, Esq., Referee.

Lawrence county. An action by the people against John Belknap to recover several penalties of $25 each for violating the laws for the protection of fish. The verdict was for $200. The summons and complaint were not signed by any district attorney, and there was no allegation or claim that the action liad been commenced under the direction of any fish or game protector, or other officer. There was judgment for plaintiff, and defendant appeals.

Action by Edward A. Durant, Jr., against Henry B. Pierson, as survivor of Henry B. Pierson & Son, and Robert C. Pruyn, as assignee of Henry R. Pierson. Report by referee in plaintiff’s favor, and judgment thereon. Motions by both parties.

Action by George Taber, Harriet A. Doty, and Augusta M. Ferguson against William J. Gilfillan and Dorcas Prime, on an undertaking on appeal in which defendants were sureties. From a judgment for plaintiffs, entered on the verdict of a jury, defendants appeal.

Action by Thomas J. Clute against the Emigrant Industrial Savings Bank for restitution of the value of land sold on foreclosure of a mortgage thereof held by defendant. Plaintiff claimed under his deceased wife, who held under a deed from the sheriff to her, as purchaser on a sale of the property on execution, issued upon a judgment against one Thomas Hall, entered in 1865.

Action by Mary E. Akerley against Lewis B. White for injuries to the person of plaintiff from a fall caused by the breaking down of the stairs in the house in which plaintiff resided as a member of the family of her father, who was tenant of the house under a lease from defendant. From a judgment for plaintiff, entered on the verdict of a jury, and an order denying a motion for a new trial, defendant appeals.

Action by Ammund Tonneson against P. Sandford Boss and Joseph B. Sand-ford, for injuries to the person of plaintiff while in the employ of defendants. From a judgment for defendants, entered on a dismissal of the complaint at. the trial, plaintiff appeals.

Action by Thomas Henderson and William Pearsall against Benort Wasserman for goods sold and delivered. From a judgment for plaintiffs entered on the verdict of a jury, and an order denying a motion for a new trial, defendant appeals.

Action by John Thompson against P. Sandford Ross and Joseph B. Sandford, for injuries to the person of plaintiff while in the employ of defendants, at the same time and under the same circumstances as the injury to plaintiff in the case of Tonneson against the same defendants, ante, 150. Prom a judgment for plaintiff, entered on the verdict of a jury, defendants appeal.

Action by James T. McCormack against George W. Venable and Moses J. Heyman, for an injunction to restrain defendants from foreclosing a chattel •mortgage. From a judgment for plaintiffs on trial by the court without a jury, defendants appeal.

Action by Augustus A. Levey, as trustee, and Isaac Levey against the. Union Print Works, a corporation, to foreclose a deed of trust. From a judgment for defendant entered on the dismissal of the complaint on trial by the court without a jury, plaintiffs appeal.

Accounting by Druscilla Werry and John J. Werry, executors of the will of Peter Werry, deceased. From two decrees of the surrogate thereon, Mary Osborn and others of the next of kin, and legatees under the will, appeal.

Action by Enoch C. Swain against William H. Schieffelin, William N. Clark, William S. Mersereau, and William L. Brower. From a judgment for plaintiff entered on the verdict of a jury, and from an order denying a motion to reduce the verdict, defendants appeal.

Application by Hathaniel Hiles for an allowance of costs upon settlement of his account as administrator of the estate of Chauncey S. Stevens, deceased. From an order making such allowance, the contestants, Hannah M. Stevens and Elizabeth S. Miller, appeal. Code Civil Proc.

Lawrence county. This action was brought, by John H. Sheehan and Philip Sweeney as partners, to recover the amount of an account alleged in the complaint to be .due from the defendants as copartners. The defendant Hutchins failed to answer, and the defendant Fleetham answered denying the existence of any co-partnership with Hutchins, and Hutchins had no right or authority to bind him as such, or to create any liability on his part to the plaintiff.

Action by John Simpson, an infant, suing by William H. Simpson, his guardian ad litem, against Charles Griggs. From a judgment for plaintiff entered on the verdict of a jury, and from an order denying a motion for a new trial, defendant appeals.

<p>Appeal from circuit court, Queens county.</p> <p>Action by Matthew Marx against the Press Publishing Company, a corporation, for libel. From a judgment for plaintiff, entered on the verdict of a jury and an order denying a motion for a new trial, defendant appeals.</p>

<p>Appeal from circuit court, Westchester county.</p> <p>Action by Ella S. Hadley against Mary Jane Reed, as administratrix of Jane Lu Gar, deceased, upon a promissory note made by said Jane Lu Gar payable to the order of plaintiff, one of her daughters, and alleged to have been given to equalize the distribution of the estate of the maker among her children. From a judgment for defendant entered on the dismissal of the complaint on trial by the court, a jury having been waived, plaintiff appeals.</p>

<p>Appeal from circuit court, Kings county.</p> <p>Action by Catherine McLaughlin against William W. Armfield. Plaintiff and others were employed in a factory occupying the upper stories of a building owned by defendant, situated in the city of Brooklyn, and which was not provided with fire-escapes. A fire having broken out on a lower floor, plaintiff and many others were compelled to leap from the windows of the third story in order to escape. Plaintiff fell to the roof of an adjoining building, and was severely injured. Most of the others on the same floor escaped through another window in the same room to a roof higher than that on which plaintiff fell, and were not seriously injured. The building had been constructed by a lessee of defendant under a lease providing for the erection thereof, and for payment of the cost by defendant; and plaintiff’s employer hired the upper floors from such lessee. From a judgment for plaintiff entered on the verdict of a jury, and from an order denying a motion for a new trial, defendant appeals. The charter of the city of Brooklyn, (Laws N. Y. 1888, c. 583,) tit. 14, § 16, provides: “Any building already erected, or that may hereafter be erected, more than two stories in height, occupied as, or built to be occupied as, a * * * factory, * * * in which operatives are employed in any of the stories above the first story, shall be provided with such fire-escapes and doors as shall be directed and approved by the commissioner. * * * Any person, after being notified by said commissioner, who shall neglect to place upon any such building the fire-escape herein provided for, shall forfeit the sum of five hundred dollars, and shall be deemed guilty of a misdemeanor. ” ‘</p>

Petition by the trustees of school-district No. 25 of the town of Hempstead for a mandamus against the board of town auditors of that town. From an •order denying the application, the relators appeal.

Action by Edward L. Kelsey against Robert Burgess for trespass.

Action by Ervin A. Barrett against George W. Sayer, as supervisor of thetbwn of Warwick. From a judgment for plaintiff entered upon a new trial in the county court, on appeal from a judgment of a justice of the peace in favor of plaintiff, defendant appeals. Code Civil Proc.

Application, on the relation of Emmet Myers, for a mandamus requiring the Masonic Guild & Mutual Benefit Association to make an assessment upon members of the association to pay a judgment against it in favor of relator. From an order that such mandamus issue, the association appeals.

Action by Ida K. Helwig against the Mutual Life Insurance Company of New York, on a policy of insurance issued by defendant on the life of plaintiff’s husband, Richard W. Helwig. From a judgment for plaintiff entered on the verdict of a jury, and from an order denying a motion for a new trial, defendant appeals.

Application by Henry T. Hoyes for a peremptory writ of mandamus to the-board of canvassers of Seneca county. Laws N. Y. 1842, c. 130, tit. 4, § 42, (1 Rev. St., 8th Ed., p. 421,) is as follows: “Sec. 42.

Application by Henry T. Hoyes for mandamus to the board of canvassers Chemung county to reconvene and re-estimate the vote of the county.

<p>Motion for reargument of appeal.</p> <p>For the decision on the original argument, see 10 H. Y. Supp.,472.</p>

Action by Edward McSorley against Brian G. Hughes and Josephine S. Hughes, his wife, and Godfried Gallineck, for specific performance of a contract to sell and convey certain real estate.

<p>Appeal from judgment on report of referee.</p> <p>Action by Grant B. Taylor against P. Elbert Nostrand, for services rendered. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from circuit court, Queens county.</p> <p>Action by Charles Bermer against the Atlantic Dredging Company for injuries to plaintiff’s house, caused by the blasting of rock under water by defendant, pursuant to a contract with the United States for the removal of rock at Hell Gate, in the East river, FT. Y. From a judgment for plaintiff entered ■on the verdict of a jury, and from an order denying a motion for a new trial, defendant appeals.</p>

Petition by Hubert O. Thompson, commissioner of public works of the city of New York, for the appointment of commissioners of appraisal, under Laws N. Y. 1883, c. 490, providing for the construction of the new Croton aqueduct, to determine the compensation for lands taken and damages sustained by reason of the construction thereof. From an order confirming their report upon a claim presented by Helen M. Diggles, said claimant appeals.

Action by Julietta Perkins against William W. Whitney and others to establish a will. From a judgment for defendants entered on the dismissal of the complaint on plaintiff’s default, and from an order denying a motion for a postponement of the trial, an order denying an application for a commission to take testimony, and an order granting an allowance additional to costs against plaintiff, plaintiff appeals. Code Civil Proc.

Action by Mary B. Briggs, as executrix of Amos W. Briggs, deceased, against Amos S. Briggs, for an accounting.

Action by Charles White, an infant, by Frank White, his guardian ad litem, against the Witteman Lithographic Company, a corporation, for personal injuries to plaintiff while in defendant’s employ. From a judgment for defendant, entered on the verdict of a jury, and from an order denying a motion for a new trial, plaintiff appeals.

Action by Lewis H. Carpenter and others, against Coles A. Carpenter and Charles W. Carpenter, individually, and as executors of James S. Carpenter, •deceased, and others. Plaintiffs were grandchildren of said testator, James S. Carpenter, some of them being children of his son Smith S. Carpenter, who died intestate, during testator’s life-time, and the others children of another son who died intestate a few days after testator’s death.

Action by Charles H. Southard against John J. Curley and Jeremiah M. Brosnan. From a judgment for plaintiff entered on the verdict of a jury, And from an order denying a motion for a new trial, plaintiff appeals.

Action by John Garside against the city of Cohoes, the common council of the city of Cohoes, John H. Haynes, and others. Held: upon returns made by duly-qualified inspectors of election and filed with the city clerk, determined and declared that the plaintiff had been duly elected to the office of mayor, at such election; made and subscribed certificates thereof in duplicate, as required by statute, one of which was filed with the city clerk, and entered in…

Action by Ludlow W. Valentine, an infant, by George W. Bergen, his guardian ad litem, against Herman T. Bichardt, Susan A. Austin, and Elizabeth H. Lunt, to set aside, for fraud, a deed of land from Catharine A. Valentine, under whom plaintiff claimed as her only child and heir at law, to defendant Bichardt, and also a deed from Bichardt to defendant Austin, and a mortgage from the latter to defendant Lunt.

<p>Appeal from judgment on report of referee.</p> <p>Action by Anna B. Harlow against Abner Mills. From a judgment for plaintiff, defendant appeals.</p>

Application by the Kings County Elevated Railway Company to acquire title to certain real estate or interests therein, under Laws N. Y. 1875, c. 606. Commissioners appointed thereon to ascertain and appraise the compensation to be made to Joseph Bryan and others made a report awarding compensation to said Bryan, which was confirmed.

Action by Theodore McKuskie against John Hendrickson, brought in a justice’s court. From a judgment for plaintiff, defendant appealed to tho county court, and demanded a new trial, on which a verdict was found for plaintiff. The taxation of costs by the clerk in favor of plaintiff, was, on motion of defendant, vacated by the county court. From the order vacating the taxation of costs, plaintiff appeals. Code Civil Proc.

Petition by William B. Davenport, public administrator, as administrator with the will annexed of Benjamin Worden Sherwell, deceased, for appraisal of the amount at which the legacies of certain residuary legatees, named in the will, nieces of the testator, should be assessed under the act taxing collateral inheritances, (Laws N. Y. 1885, c. 483, amended by Laws 1887, c. 713.) From an order that $500 be deducted from the amount of the share of each of said nieces, and only…

A report of the appraiser appointed to appraise the estate passing under the will of Charles H. Butler, deceased, for taxation, under the act taxing collateral inheritances, (Laws N. Y. 1885, c. 483, as amended by Laws 1887, c. 713,) which assessed a legacy to Edward Knapp Butler, as subject to such tax, was confirmed, and the order confirming it was affirmed on appeal to the surrogate. From the order of affirmance, said Edward Knapp Butler appeals.

Petition by Oliver H. Booth and others, executors of the will of John Guy Vassar, deceased, for appraisal of the amount at which certain legacies given-by said will should be assessed under the act taxing collateral inheritances. Laws N. Y. 1885, c. 483, as amended by Laws 1887, c. 713. The order confirming the report of the appraiser appointed thereon was affirmed on appeal to the surrogate.

Petition by Charles Morschauser, as guardian of Jennie D. Vandewater, an infant, for probate of a codicil to the will of Abraham Dates, deceased, under which codicil said Jennie D. Vandewater was a devisee. In a previous proceeding for probate of said will and codicil, of which no notice was given to said Jennie D. Vandewater, a decree was made by the surrogate admitting the will to probate, but rejecting the codicil.

<p>Judgment Lien.</p> <p>The lien of a judgment on real property of the judgment debtor for 10 years, under Code Civil Froc. N. Y. § 1251, cannot be extended beyond that time, as against bona fide purchasers or incumbrancers, by the levy of an execution; the sale on execution must take place within the 10 years, unless stayed by injunction or appeal.</p>

Action by Henrietta A. Longheed, one of the heirs at law of Amos C. Dykeman, deceased, for partition of land devised by him to the Dykeman’s Baptist Church & Society, on the ground that said devise was void, the devisee not having been incorporated until after the death of testator. Prom a judgment for defendant, plaintiff appeals.

Action by the New York, Lake Erie & Western Railroad Company against Charles Robinson to procure a decree declaring certain shares of stock of the National Stock-Yard Company to have been unlawfully issued in defendant’s lands, to have a certain contract canceled, and to have it adjudged that defendant procured certain property by fraud, and that said property belongs to the Erie Railway Company, or to plaintiff, its successor.

<p>Appeal from tenth district court; Rogers, J.</p> <p>Action by Andrew E. Lines against Charles D. Shepard. Defendant appeals from a judgment for plaintiff.</p>

<p>Landlord and Tenant—Liabilities op Landlord.</p> <p>The owner of two adjoining lots with buildings thereon, part of one of which was occupied by a tenant under a written lease, contracted for the removal of the other building,-giving the contractor sole charge of the work, and requesting him not to interfere with the walls of the adj pining building. In an action by the tenant against the owner for injuries to his property by the removal of the walls of the other building, leaving part of the demised premises exposed, it did not appear that the lease contained any covenant to repair, or keep in repair, the premises, or that the adjacent property should remain in the same condition as at the time of hiring, nor was it claimed that there were any false representations as to the condition of the demised premises; and the evidence justified a finding that no disturbance of such premises was contemplated by defendant when he made the contract, or was necessarily involved in doing the work under it. Held, that a judgment for defendant should be sustained.</p>

Action by Samuel Baumann against Edward S. Post. There was a judgment for plaintiff, and defendant appeals.

For decision oh argument of appeal from general term of city court of New York to court of common pleas, see 11 N. Y. Supp. 716.

Action by the Pelham Hod Elevating Company against Joshua Baggaley. The action in form for replevin was begun October 27, 1890, to recover an engine and boiler valued at $400, and $100 damages for the detention thereof. The property was taken into the custody of the sheriff on that day. The defendant failed to counter-bond, and no claim was made to the property by any third person, in the manner prescribed by Code, § 1709.

Action by Asa W. Parker against Evelyn P. Everett, Alexander McLean, and Sampson B. Oulton, of whom only McLean answered the complaint. On trial of the issues as to him, a verdict was directed for plaintiff. From the judgment for plaintiff entered thereon, and from an order denying a motion for a new trial, defendant McLean appeals.

<p>Appeal from trial term.</p> <p>Action by Thomas Quinn against the Atlantic Avenue Railroad Company. From a judgment for plaintiff entered on the verdict of a jury, and from an order denying a motion for a new trial, defendant appeals.</p>

Action by Lelia H. Tobin against the village of Fairport to recover damages sustained in consequence of a fall on a defective sidewalk on defendant’s street. There was a verdict for plaintiff, and defendant moves for a new trial on the minutes.

<p>Probate of Will—Jurisdiction of Surrogate—Collateral Attack.</p> <p>Under the New York statutes regulating the jurisdiction and proceedings of surrogates’ courts, a surrogate, in determining the question of the inhabitancy of the testator in a will offered for probate, acts judicially, and the probate granted on such determination cannot be assailed collaterally by proof that the testator was an inhabitant of the state, but not an inhabitant of the county, in which probate was granted. Following Roderigas v. Institution, 63 N. Y. 460, and disapproving Bolton v. Jacks, 6 Rob. (N. Y.) 166..</p>

Petition by the Atlantic Avenue Elevated Railroad Company for the appointment of commissioners under Laws N. Y. 1875, c. 606, to determine whether an elevated railroad should be constructed and operated by it on certain streets in the city of Brooklyn. Petitioner moves to confirm the report of the commissioners that such railroad ought to be constructed and operated.

Petition by Edward B. Long and others, constituting the board of trustees of the village of White Plains, to acquire certain lands, pursuant to Laws N. Y. 1887, c. 609, and the acts amendatory thereof, for the construction of a sewerage system for the village. From an order confirming the report of commissioners appointed to appraise the compensation for the property so taken, Charles Butler, an owner of one parcel of such property, appeals.

Action by Oliver T. Nanny against Amzi L. Fancher and others.

Action by the Capital City Bank against Adolphus Parent and others. From a judgment for defendant Parent entered on the dismissal of the complaint at the trial, plaintiff appeals.

Action by Thomas Costello against George B. Eddy. From a judgment for •defendant, entered on the dismissal of the complaint at the trial, plaintiff appeals.

Case submitted on agreed statement. Submission of controversy without action, upon facts agreed on, by Deborah' Taylor Lee and others, plaintiffs, against Charlemagne .Tower, Jr„ and others, executors of Charlemagne Tower, deceased, and others. On the 24th July, 1889, Charlemagne Tower, then being a resident of the city of Philadelphia, in the state of Pennsylvania, died, leaving a last will and testament made at Philadelphia, and dated May 21, 1889.

Indictment against Thomas Williams, William Ferguson, and Thomas Rogers, for petit larceny, alleged to have been committed in stealing $10, the property of one George A. Dayton.

Claims by Thomas S. Vaughn and by Nannie L. Vaughn against Mary M. Strong, as administratrix of Thomas J. Strong, deceased, which, being disputed, were referred to a referee appointed by the surrogate, who reported in favor of defendant. From the judgments for defendant entered thereon, respectively, plaintiffs appeal. For a decision on a former appeal, see 4 N. Y. Supp. 686.

<p>Appeal from circuit court, Ulster county.</p> <p>Action by James F. Burke against the Niagara Fire Insurance Company on a policy of insurance. Mary Fisher, the widow of John Fisher, and devisee under his will of the insured premises, was made a party plaintiff by supplemental summons and complaint. From a judgment for said plaintiff, Mary Fisher entered on a verdict in her favor, and from an order denying a motion for a new trial, defendant appeals.</p>

Action in the name of the people of the state against William H. Coughtry, for penalties for violations of the game laws. From an order changing the place of trial from the county of Columbia to the county of Albany, on the ground of the convenience of witnesses, plaintiff appeals.

Action in the name of the people of the state against the Manhattan Mutual Fire Insurance Company of New York, of Goshen, N. Y., for a dissolution of defendant corporation.

Action by Patrick Fox against Robert Dixon, as overseer of the poor of the town of Rosedale, for services rendered by one Dr. W. E. E. Little, a practicing physician, in attending as a physician on various persons at the request of defendant, the claim for which had been assigned by said Dr. Little to plaintiff. From a judgment for plaintiff entered on the verdict of a jury, and from an order denying a motion for a new trial, defendant appeals.

Action of ejectment by-The Fhcenix Mills, a corporation, against James A. Miller and Jacob Snell. From a judgment for defendants entered on trial by the court, a jury having been waived, plaintiff appeals.

Action by John Mullen against the mayor, aldermen, and commonalty of the city of New York. From a judgment for plaintiff entered on a verdict directed by the court, defendants appeal.

Action by Hannah Cohen and Abraham Cohen, as administrators of Pischel Cohen, deceased, against the mayor, aldermen, and commonalty of the city of New York, and others. For decision on previous appeal to the court of appeals, see 21 N. E. Rep. 700, and 113 N. Y. 532. At the trial before a jury, no exceptions were taken by defendants to the admission or exclusion of evidence, or to the charge to the jury. The jury found a verdict for plaintiffs.

Certiorari on the relation of the American Surety Company to Edward Wemple, comptroller of the state, to review an assessment for taxation of relator as an insurance company.

<p>1. Contract of Employment—Dismissal.</p> <p>Plaintiff, an actress, was employed by defendants to “render services at such theaters, opera-houses, and halls as required, ” for a certain period. For refusal to attend at a rehearsal as directed, they dismissed her, and refused to accept further services. In an action for damages for wrongful dismissal, she sought to excuse her failure to attend the rehearsal on the ground that, when directed to do so, she was “physically exhausted; ” but it did not appear that this exhaustion continued to the time of the rehearsal. Held, that a mere temporary disability would not necessarily terminate the contract, but plaintiff having failed to show a sufficient excuse for non-attendance at the rehearsal, a verdict in her favor could not be sustained.</p> <p>2. Trial—Failure to Instruct.</p> <p>An omission to charge on a material point is not error where no request for such an instruction is made.</p> <p>Reversing 11 N. Y. Supp. 207.</p>

Motion by Wilbur F. Treadwell, a receiver appointed in supplementary proceedings against the defendant, Israel Mintz, to set aside levies and sales under executions in actions against said defendant under the name of Isaac Mintz, and that the plaintiffs therein pay over to the receiver the proceeds of such sales, on the ground that the sales, were void by reason of such misnomer.

Action by George W. Copley and Ellen Dolen against Amelia C. Hay and others. The defendant Hay appeals from an order overruling her demurrer to the plaintiffs’ complaint, and directing judgment thereon, with costs, and from an order denying her motion to resettle the judgment entered.

<p>Action by Henry O’Neill, Thomas H. O’Neill, and George Quackenbush against John S. Grotty. Defendant appeals from the judgment of the general term of the city court affirming the judgment of the trial term, rendered by the judge who tried the cause, without a jury, in favor of plaintiffs, for $317.30, with costs. The complaint alleged the sale and delivery between June 11 and August 31, 1889, to the defendant of 155 gross of embroidery edging, of the value of $310, and for which defendant promised to pay that sum on or before October 10, 1889, and that no part thereof has been paid, although the time within which payment was to have been made has expired.. The answer was a denial of all the allegations. Upon the trial, one of the plaintiffs, George Quackenbush, was called by plaintiffs to prove the sale. Upon cross-examination the defendant elicited that the 155 gross sued for was a delivery under a special executory contract for the sale of 200 gross of embroidery edging, to be manufactured according to sample,—100 natural color, and 100 white,—at two dollars per gross; that, after the first delivery under the contract, (100 gross natural color, on August 28th,) the defendant complained about the quality of the goods, and the plaintiffs told him, if he could notuse them, to return them; that the defendant then required the white to be delivered, and plaintiffs delivered, on August 31st, 55 gross of the white; that defendant then came to complain, or to make a claim, and plaintiffs again told him, if he could not use the goods, to return them; that defendant then went away and brought an action against plaintiffs; that plaintiffs were ready to go on and furnish the balance of the goods, if he would have accepted them. There was some evidence from which it might be inferred that the goods were to be paid for as delivered. The terms of sale were, “30 days’ dating, and ten days’ time,”' which meant that the defendant’s bills were to be dated 30 days from the date of delivery, and he had 10 days thereafter in which to pay. At the close of the testimony of the witness Quackenbush, the plaintiffs (who had objected to the cross-examination as to sale by sample, on the ground that it was not pleaded, as immaterial, irrelevant, and incompetent) made a motion to strike out the evidence in reference to the goods delivered conforming to the sample, and to strike out the evidence in reference to the special contract. The motion was granted, and the defendant excepted. No other evidence was offered by either party. Defendant hen moved to dismiss the complaint (1) on the ground that the plaintiffs had failed to prove the cause of action set forth in the complaint, failed to prove any sale of, or agreement to sell, 155 gross of edging, and any delivery under such an agreement; (2) that the only sale shown by the uncontradicted evidence was of 200 gross of edging, and that the proof is at variance with the ■complaint; (3) that the agreement for the sale of 200 gross was entire, and a full delivery thereunder was a condition precedent to a recovery, and that plaintiffs had failed to perform said agreement. The motion was denied, and the defendant excepted. The court found, as matter of fact, a sale and delivery of 155 gross, at two dollars per gross, which became due and payable on October 10, 1889. The defendant excepted to this finding, but made no requests to find as to any fact or conclusion of law.</p>

<p>Appeal from first district court.</p> <p>Action by Edwin. P. Phillips against Charles T. Richardson. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from trial term.</p> <p>Action by Jeremiah Cumber against Louis H. Schoenfeld. Defendant appeals from a judgment for plaintiff entered on a verdict, and from an order denying a motion for a new trial. Code Civil Proc. N. Y. § 723; provides: “The court may * * * amend any process, pleading, or other proceeding, * * * where the amendment does not change substantially the claim or defense, by conforming the pleading or other proceeding to the facts proved.”</p>

Boyd as assignee for benefit of creditors of Charles S. Bryce. From so much of the order made on confirming the referee’s report as directed the application by the assignee of one-third of the net assets towards the payment of the claim of Boss & Kearney, the first preferred creditors, William A. Bryce, •another preferred, creditor, appeals.

Action by J. Gardner Curtis against Robert Soltau. Defendant appeals from a judgment in favor of the plaintiff for the sum of $3,065.48, entered upon a verdict rendered by direction of the court, and from an order denying defendant’s motion for a new trial. The action was to recover $2,589.08, balance of the purchase price of certain lots of gutta-percha on September 6, 1888.

Action by Felice Tocci against Pietro Arata and Rocco Metelli, for damages for breach of contract. Defendants appeal from a judgment for plaintiff entered on the verdict of a jury.

Action by Leopold Wise and Charles Wise against William Rosenblatt, to recover an alleged,balance of advances made upon a consignment of merchandise. Plaintiffs appeal from a judgment for defendant dismissing the complaint and for the amount of a counter-claim. For former report, see 9 N. Y. Supp. 500.

Action by Silas H. Withersbee, George B. Sherman, and others, copartners, against John D. Slayback and Frank B. Bobinson. The action was referred, and the referee reported in favor of plaintiffs. After the report, the plaintiff Silas H. Withersbee died, and the action was continued in the names of the other plaintiffs as surviving partners.. From the judgment for plaintiffs, entered on the referee’s report, defendants appeal.

Action by the Reformed Dutch Church of the town of Summit against William L. Harder and Stanton P. Harder, for trespass. Held: their title had ceased; that they were never-incorporated; and that, if they were, it was not until 1887, and the corporation did not become revested of the premises. In 1830, and for several years prior thereto, there was a religious society at.

Action by Albert P. Miller against the New Jersey Steam-Boat Company. From a judgment entered on a verdict for plaintiff, and from an order denying a motion for a new trial, defendant appeals. For former report, see 10 N. Y. Supp. 960.

Appeals from circuit court, Albany county. Action in the name of the people of the state, brought by the attorney general on the application of the town of Harpersfield, against the Ulster & Delaware Railroad Company, to annul the corporate charter of defendant. Plaintiff appeals from a judgment for defendant entered on a verdict rendered by •direction of the court, and also from an order granting an allowance to defendant in addition to costs.

<p>Evidence—Competency—Conclusions of Fact.</p> <p>In an-action against husband and wife for medical services rendered their family, where the issue was whether the husband or the wife was liable, it was prejudicial error to allow plaintiff to answer the question: “When you rendered the services, * * * 'on whom did you rely for pay?"</p>

<p>'Taxation—Exemption—Charities.</p> <p>Laws N. Y. 1889, c. 463, provides that the portion of the property of a certain incorporated hospital society, “from which no income is derived, shall be exempt from taxation so long as the same shall be used exclusively for the purposes for which said society was chartered. ” The society had a farm, used exclusively for its charter purposes, and which was not self-supporting. The farm products were almost entirely used in the hospital, but occasionally insignificant articles were sold, and the proceeds were applied to the support of inmates of hospital buildings on the farm. Held, that such proceeds were not “income, ” within the meaning of the statute, and that the exemption was not waived by the society charging patients able to pay, the money received from them being wholly applied to the support of and attendance on patients who could not pay.</p>

<p>Action by Isaac Hough against T. V. Folensbee. Defendant moves to vacate an order of arrest.</p>

At chambers. Action by Edith S. Tupper against Martin Morin for damages caused by the arrest of plaintiff in the city of Toronto, province of Ontario, on a criminal charge, pursuant to a telegram sent by defendant as chief, of police of the city of Buffalo. Defendant now moves to vacate an order of arrest heretofore granted, and to change the place of trial from New York county to Erie county, in which the city of Buffalo is situated.

<p>Appeal from special term, New York county.</p> <p>Action by George E. Gervais against the Chicago, Rock Island & Pacific Railway Company. Defendant appeals from an interlocutory judgment overruling a demurrer to the complaint.</p>

Action of ejectment by George C. Preston, as receiver of the Ulster County Agricultural Society, against Robert Loughran. Prom a judgment for plaintiff, on trial by the court, a jury having been waived, defendant appeals.

Petition by the Saratoga Electric Railway Company to acquire a crossing -for its proposed railway over the tracks of the railroad of the Delaware & Hudson Canal Company. From an order appointing commissioners in accordance with the prayer of the petition, to determine the points of crossing, -,the Delaware & Hudson Canal Company appeals.

Proceeding by William P. Pitkin as administrator de bonis non of George Wilcox, deceased, against Eliza A. Wilcox as administratrix of Hiram Wilcox, deceased, for an accounting. The surrogate denied the application, and petitioner appeals. For order denying motion to dismiss appeal, see 11 N. Y. Supp. 943.

Appeal'from surrogate’s court, Rockland county. Application by Brewster J. Allison, Walter Tomkins, and William Knight, executors of George S. Allison, deceased, for a final settlement of their accounts as such executors. Objections to the accounts presented were filed by George A. McMahon and others, grandchildren of the deceased. From the decree of the surrogate thereon, said contestants appeal.

Action by Henry C. Bowen against William L. Bull, as president of the New York Stock Exchange. Plaintiff appeals from a judgment for defendant entered on the report of a referee.

Action by William Kirk and Elizabeth, his wife, against John Kirk and others for partition. Mahoney & Bros., the purchasers at the partition sale, move to be relieved of their bid.

<p>On motion for reargument. For report of original hearing, see 8 N. Y. Supp. 885.</p>

<p>1. Parol Evidence—Lost Deed—Evidence of Possession.</p> <p>To prove loss of a deed to P. it was shown that in a certain book kept by an alleged agent of P.’s grantor a receipt for the deed appeared, which briefly described the land, and was signed “P., his mark, ” but there was no witness to the signature. Meld insufficient to show that P. was ever in possession of the deed, and to admit secondary evidence of its contents.</p> <p>2. Descent—Legitimacy—Evidence.</p> <p>One M. testified that P. was his father, but there was no explanation of the difference in the surnames. Meld, that it could not be said as matter of law that M. was the legitimate child of P.</p>

<p>Appeal from circuit court, Ulster county.</p> <p>Action by the State of New York National Bank against Samuel D. Coykendall, impleaded with others. Plaintiff appeals from a judgment rendered in favor of Coykendall.</p>

<p>1. Injunction—Abatement of Nuisance.</p> <p>Plaintiff contracted to furnish the village of S. with electric lights. The village-of V. lay immediately south of the village of S., a street running east and west being the dividing line. It was alleged that the trustees of V. had given plaintiff' authority to erect poles. Two poles having been erected on the south side of the street in front of a church, the congregation cut them down and made a riotous. demonstration upon an attempt being made to re-erect them. Held, that a temporary injunction to restrain interference with the poles should be granted.</p> <p>2. Same.</p> <p>If the poles were a nuisance defendants had no right to remove them, it not appearing that they interfered with their use of the street.</p>

<p>Appeal from circuit court, Albany county.</p> <p>Action by Peter J. Flinn against the New York Central & Hudson River Railroad Company to recover damages to property from the alleged negligence of defendant. There was a verdict for plaintiff for $1,600. From the judgment entered thereon defendant appeals.</p>

Action by Margaret A. Oliver against John L. Moore, executor of Harriet -Gross, deceased. Defendant having died pending the action, William L. Moore, as administrator with the will annexed of Harriet Gross, was substituted as defendant. Said defendant appeals from a judgment for plaintiff entered on a verdict, and from an order denying a motion for a new’trial. For the decision on exceptions taken at a previous trial, see 6 N. Y. Supp. 413.

Petition by Martha J. Fitzgerald to vacate in part an order confirming the report of commissioners of estimate and apportionment, on the opening 181st street, between Tenth and Eleventh avenues, in the city of New York, which made no award to petitioner for land owned by her taken for such street. From an order granting the petition, owners of property assessed for expenses of opening the street appeal.

Action by Julius Goldman against John Banta. From a judgment for plaintiff entered on trial by the court without a jury, defendant appeals.

<p>1. Street Railroads—Accident to Persons on Track.</p> <p>In an action against a horse-railroad company for personal injuries, plaintiff testified that, while waiting for a car, between two tracks, having her baby in her arms and a little girl beside her, two cars approached, one of them very swiftly; that she motioned to the driver to stop, but he did not do so, and she was knocked down by the car and injured. Testimony for defendant was that both cars had come to a stop at the time of the accident; that plaintiff, while crossing the track, on seeing a car coming, had run back and run into the car, and by the shock was thrown down on her knees and thus injured. Held, that a verdict for plaintiff, being supported by her testimony, would not be disturbed.</p> <p>2. Same—Contributory Negligence.</p> <p>The fact that plaintiff was on the sidewalk over which the cars ran on a curve to enter defendant’s depot, did not constitute contributory negligence.</p> <p>3. Same.</p> <p>Even if plaintiff failed to pursue the best course to escape the danger in which, according to her testimony, she was placed, this would not deprive her of the right to recover if defendant was negligent in the management of its cars.</p> <p>4. Trial—Instructions.</p> <p>The refusal of requests for instructions to the jury which are covered by propositions already charged is not ground for reversal.</p> <p>5. Excessive Damages.</p> <p>In an action for personal injuries from defendant’s negligence, it appeared that plaintiff, a married woman, had received severe contusions of the hip and lower part of the back, causing much pain and a traumatic fever, which lasted several days, during which time she was attended by a physician daily, and afterwards, less frequently, for three or four months, and that she continued to suffer pain and difficulty in walking down to the time of the trial. Held, that a verdict for $1,000 damages should not he set aside as excessive.</p>

<p>L Trusts—Accounting —Rents—Commissions.</p> <p>On a decree for the conveyance of real estate by defendant to plaintiff, and for an accounting of the rents thereof, it is proper to allow defendant the commission paid by it for'the collection of rents, where it was acting in the matter as the guardian of infants, and not on its own account.</p> <p>2. Same—Expense eob Repairs.</p> <p>Expenses incurred for repairs are also a proper allowance where the repairs were necessary to full enjoyment of the premises, and without them it would have been impossible to rent the same.</p> <p>8. Same—Insurance.</p> <p>Defendant is also entitled to an allowance for insurance, it being its duty, as guardian of the infant owners, to keep the premises insured.</p> <p>4. Same—Taxes.</p> <p>It is also entitled to credit for taxes paid during the period limited for the accounting.</p> <p>5. Same—Costs.</p> <p>An accounting being necessary to settle the rights of the parties, and it not having been made voluntarily, it is error to allow the costs of the action therefor against plaintiff.</p> <p>6. Same—Interest on Receipts.</p> <p>Where defendant is allowed interest on disbursements made by him out of the rents, he is to be charged with interest on the rents received.</p>

Claim by George E. Beakes and Charles H. C. Beakes against Luiz A. Da Cunha and Sarah A. Gedney, as executors of Charles Gedney, deceased. The claim was disputed by the executors, and referred. The referee reported in favor of plaintiffs, and his report was confirmed, and judgment for plaintiffs entered thereon. From the judgment and the order confirming the referee’s report, defendants appeal.

Action by Wilhelmina Gennerich against Annie Brendel and others for partition among heirs of real property of an intestate. Christian F. Gennerich and another, as executors of a deceased mortgagee of the premises, by answer claimed a charge on the property for the amount of the mortgage.

Action by Alfred 0. Barnes and others against Edwin M. Barnes and others. Sarah A. Blake, one of the defendants, demurred to the complaint, on the ground that several causes of action had been improperly united therein. The demurrer was overruled, and from the interlocutory judgment entered thereon, said defendant Sarah A. Blake appeals. For former reports, see 9 N. Y. Supp. 933, ante., 69.

Action by Theodore C. Boyd against Angus J. McDonald. Defendant appeals from an interlocutory judgment sustaining plaintiff’s demurrer to a counter-claim set up in a paragraph of the answer.

Action by Rosalind C. Richmond, executrix of Alfred W. Richmond, deceased, against the Railway Register Manufacturing. Company, for an accounting. Defendant appeals from an interlocutory judgment overruling a demurrer to the complaint.

Action by Edward G. Dickson, John M. Campbell, and James R. Keiser against Mark Mayer, a corporation. Plaintiffs obtained a warrant of attachment against defendant’s property, which defendant moved to vacate, on the papers on which it was granted. From an order denying its motion, defendant appeals.

Application by James Mullin for a writ of mandamus requiring the Brotherhood of Stationary Engineers of the city of New York to reinstate relator in his membership. The alternative writ was issued August 8, 1890, requiring respondent to reinstate relator, or to show cause, at a special term of the supreme court, to be held “on the first Monday of October next,” why it. should not do so.

Action by Annie E. Smith against Fletcher W. Camp, as administrator with the will annexed of Mary Etta Camp, deceased. Plaintiff appeals from a judgment for defendant entered on the verdict of a jury, and from an order denying a motion for a new trial. For other litigation concerning the estate of Mary Etta Camp, see 1 N. Y. Supp. 372, 375.

Action by Orlando P. Dexter against Warren Joseph Alfred. Plaintiff appeals from an order granting defendant’s motion to change the place of trial from New York county to Franklin county.

Pen. Code N. Y. § 217, defines assault in the first degree as an assault to kill or to commit a felony. Section 218 defines assault in the second degree as doing certain acts dangerous to life or health, or with intent to commit a crime, under circumstances not amounting to assault in the first degree.

<p>Appeal from special term, New York county.</p> <p>Action by Fannie W. Beading against James B. Haggin. Defendant appeals from an interlocutory judgment overruling a demurrer to the complaint.</p>

Action by Henry Dale and others against Frank T. Gilbert, as sheriff. Defendant’s motion to set aside an undertaking given by the defendant to retake certain goods replevied, and for leave to snbstitute another undertaking in its place, was denied, and defendant appeals.

Action by Henry P. Sisson against George W. N. Yost and Virgil W. Blanchard. Defendant Yost appeals from a judgment for plaintiff entered •on the verdict of a jury, and from an order denying a motion for a new trial.

Action by David Marsh against the Delaware, Lackawanna & Western Railroad Company. Judgment was entered on a verdict for $762.22 in favor of plaintiff, and a motion for a new trial was denied, and defendant appeals.

Action by Ada A. Hyer against George Sutton to recover a deficiency remaining after sale under a chattel mortgage. A demurrer to the answer was-overruled, and plaintiff appeals.

Indictment against Thomas F. Wynn for misdemeanor. Defendant appeals-from a judgment of conviction. Pen.

Action by Isaac B. Newcombe and Camille Weidenfeld against the Chicago- & Northwestern Railway Company and William A. Lottimer and John Blood-good, individually, and as executors of William Lottimer, deceased. Defendants Lottimer and Bloodgood appeal from an interlocutory judgment overruling their demurrers to the amended complaint. For decision on former appeal, see 8 N. Y. Supp. 366. Code Civil Proc.

Action by Emil Oelbermann and Louis E. Dommerich against William It, Jarman, David McQuillan, and Charles G. Otis. Defendants appeal from a judgment for plaintiffs entered on the verdict of a jury, and from an order denying a motion for a new trial:

Application by Benjamin F. Young, as agent for Henry G. Howard and others, for certiorari to Clarence Willis, as clerk, and Henry Faueett, Henry F. Bennett, and Charles A. Ellas, as assessors, of the village of Bath, to review an assessment. The assessment was reduced from $100,000 to $13,-085.30, and repayment of the excessive taxes was directed, and defendants appeal.

Action by the people of the state of New York against Charles Featherly to recover penalties for violating the game laws. A verdict was directed for plaintiff, who moved for judgment subject to the opinion of the general term.

<p>Husband and Wife—Earnings on Wine.</p> <p>In an action by a married woman for services rendered, and for board furnished, defendant’s testatrix, while plaintiff and her husband were living together, no recovery can be had for the value of the provisions furnished, in the absence of evidence that they were furnished by plaintiff, as the presumption is that they were furnished by the husband; but she may recover for the value of her services, under Laws N. T. 1860, c. 90, § 3, which provides that “the earnings of any married woman * * * shall be her sole and separate property. ”</p>

Action by Charles A. Nichols, an infant, by Mark A. Nichols, his guardian ad litem, against Will B. Tuttle, Galen O. Weed, and Arvine M. Knickerbocker for libel. Judgment was entered on a verdict for defendants, and a motion for a new trial was denied, and plaintiff appeals.

Action by James Doud against Peter J. Donnelly for, personal injuries. Judgment was entered on a verdict for plaintiff, and defendant appeals.

Action by Nicholas A. Alpaugh, as commissioner of highways of the town of Castile, against Susan M. Bennett, for.obstructing a highway in said town. A judgment for plaintiffs entered by the justice of the peace before whom the action was brought was affirmed by the county court, and defendant appeals.

Action by the Third National Bank of Springfield, Mass., against Orlando B. Hastings, doing business under the firm name of Hastings & Todd. Defendant appeals from a judgment for plaintiff, entered on a verdict directed by the court.

Action by Hester Bates, Althea Schmid, and Isaiah Keyset against William H. Johnston, Benjamin B. Johnston, Lucretia Johnston, and Mary Bingham. Plaintiffs and the defendant Mary Bingham appeal from a judgment entered on trial by the court without a jury, dismissing the complaint, and denying the prayer for relief in the answer of said defendant Bingham.

Action by Frederick A. Dunn against the New Haven Steam-Boat Company. Plaintiff appeals from a judgment for defendant entered on the verdict of a jury, and from an order denying a motion for a new trial.

Action by Bebecca Babbitt against David S. Brown and Delaplaine Brown •and George Punchard and George H. C. Punchard. Plaintiff appeals from an order denying a motion to continue a temporary injunction.-

Action by Margaret C. Winters, as executrix, etc., against Chauncey Judd and another. Judgment was entered in Cattaraugus county on the report of the referee in favor of defendants, and plaintiff appeals.

<p>Appeal from special term, Erie county.</p> <p>Action by Siragan S. Costikyan, as administrator of Stephen K. Babasinian. deceased, against the Travelers’ Insurance Company on an insurance policy. A motion to require plaintiff to elect between causes of action, or to make the complaint more definite and certain, was denied, and defendant appeals.</p>

Action by the city of Rochester against Simon Y. McDowell and others. A bill of particulars was ordered, and plaintiff appeals.

<p>Appeal from surrogate’s court, Erie county.</p> <p>Petition by Helen S. McGillivray against Edward C. Hawks, testamentary trustee under the will of Eli B. Smith, deceased. The trustee appeals from part of the surrogate’s decree.</p>

Action by Mary Leach against the Buffalo, Rochester & Pittsburg Railroad Company for personal injuries alleged to have been inflicted on plaintiff by other passengers on defendant’s train. Judgment was entered on a verdict for plaintiff for $1,000, and a motion for a new trial was denied. Defendant appeals.

Exceptions from circuit court, Monroe county. Action by Joseph Bauer against the city of Rochester for personal injuries caused by obstructions in defendant’s street. A nonsuit was granted on defendant’s motion, and plaintiff moves for a new trial on a case and exceptions ordered to be heard, in the first instance, at general term.

Action by Roxanna H. Lawrence, individually and as executrix, and George Sherman, as the executor of the will of Judson W. Sherman, deceased, against Walter S. Church. A demurrer to the complaint was overruled, and from the order and interlocutory judgment defendant appeals. For former report, see 10 N. Y. Supp. 566.

<p>Appeal—Decision on Former Appeal.</p> <p>Where an appeal was decided adversely to appellant, but no opinion was written,, it will be assumed that every material question was decided; and an order denying appellant’s motion, involving substantially the same questions, will be affirmed.</p>

Action by Herman Maesk against William S. Smith for slander. Judgment was entered on a verdict for plaintiff, and a motion for a new trial was denied, and defendant appeals.

Action by Clark Woodworth against Thomas C. Hodgson and Frank I. Hawley. Judgment was entered on a verdict in favor of plaintiff, and a motion for a new trial was denied, and defendants appeal. For former report, see 9 N. Y. Supp. 750.

Action by William Wallace against the Vacuum Oil Company. Judgment, was entered on a verdict for plaintiff, and a motion for a new trial was denied, and defendant appeals.

Action by Reuben W. Gifford, as receiver of the property of Chauncey W. Rising, a judgment debtor, against Aretas W. Rising. The justice of the peace before whom the cause was tried gave judgment for plaintiff. This was reversed by the county court, and plaintiff appeals. For appeal from order, see post, 480. For other proceedings, see 8 N. Y. Supp. 279; 3 N. Y. Supp. 392.

Action by Reuben W. Gifford, as receiver of the property of Cháuncey W. Rising, a judgment debtor, against Aretas W. Rising. There was an order ■subrogating Ely 0. Rising and Lodema G. Rising, sureties on the appeal-bond to the extent of $584, and plaintiff appeals. For appeal from judgment, see ■ante, 428.

At chambers. Action by Carl P. Stirn and Amos M. Lyon against Charles W. Nash and George S. Brush. The cause of action is set out in the complaint, which is as follows: “The plaintiffs above named, for complaint herein, allege: (1) That they are copartners doing business in the city of New York under the firm name of Stirn So Lyon, and that the defendants are copartners engaged in business in the city of New York under the firm name of Nash & Brush.

Action by George W. Clemons against the Livingston County Mutual Fire Insurance Company. The court directed a verdict for plaintiff, entered judgment thereon, and denied a motion for a new trial, and defendant appeals.

Action by the town of Ontario against the First National Bank of Andes, impleaded with others. The complaint was dismissed, and plaintiff appeals.

<p>Motion for reargument. For decision on the hearing of the appeal, see 11 N. Y. Supp. 391.</p>

<p>Application by Willis H. Coon for certiorari to Myron Wood, supervisor, Charles H. Beach, town clerk, Edward H. Kellogg, David D. Becker, William B. Sayre, and Jesse Van Alstyne, justices of the peace, comprising the board of town auditors of the town of Wolcott, Wayne county, in 1889, to audit relator’s account for legal services.</p>

Action by the Bank of British North America against Richard Delafield. Defendant appeals from a judgment for plaintiff, entered on trial by the court, a jury having been waived.

<p>1. Trusts—Removal of Trustee—Injunction against Suits—Jurisdiction.</p> <p>In an action for the removal of the trustee in a mortgage of property of a corporation in another state, given to secure bonds of the corporation, the court has jurisdiction to restrain the trustee from proceeding with an action, brought in a court of such other state, to foreclose the mortgage.</p> <p>8. Same—Action to Remove—By Whom Maintainable.</p> <p>Such an action was brought by owners of 85 of the 150 bonds secured by the mortgage, not only for the benefit of themselves, but of the others who might become parties. Held, that it was within the provision of Code Civil Proc. N. Y. § 448, that where the question is one of common or general interest of many persons, or the persons who might be made parties are very numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.</p> <p>8. Same—Jurisdiction to Remote—Non-Resident Parties.</p> <p>That the trustee sought to be removed in such an action is a corporation formed underthe laws of the statewhere suit is brought,and therefore subject to the jurisdiction of the court, is sufficient to give jurisdiction, although a portion of the plaintiffs are not residents of the state, and the mortgagor isia corporation of another state.</p> <p>4. Same—Misconduct op Trustee—Grounds por Removal.</p> <p>A trust, company, to which, as trustee for holders of bonds of a corporation, a mortgage of the property of the corporation was executed to secure payment of the bonds, brought an action to foreclose the mortgage. Its attorney, with the authority of the trust company, consented that the lien of the mortgage should be subordinated to expenditures alleged to have been made for improvements on the property subsequent to the mortgage, by another corporation to which it had been conveyed by the mortgagor. Held, that this was ground for an action for the removal of the trust company as trustee, and that the inability of the court to appoint another trustee would not defeat the action, where ample authority to make such appointment was given to the bondholders by the mortgage.</p>

Action by Charles Gilpin, Jr., against John Daly and others. Defendant Daly appeals from an order disallowing certain interrogatories to witnesses under a commission to take testimony. For motion to strike out part of complaint, see 11 N. Y. Supp. 6.

<p>Appeal from trial term.</p>

<p>Injuries to Employe—Defective Machinery—Apparent Risks.</p> <p>' The employer is not liable for injuries received by an employe, when he voluntarily assumes the open and apparent risks of defective machinery.</p>

<p>Action on Contract—Defenses.</p> <p>That the contract in suit was made by plaintiff under a name containing the designation “& Co., ” not representing an actual partner, and that plaintiff carried on business under such name, contrary to Pen. Code N. Y. § 363, is not a defense, unless it appears that credit was given and reliance placed upon the false designation.</p>

<p>Exceptions from jury term.</p> <p>Action by G. A. Wilbur against the New York Electric Construction Company on a contract. Judgment for plaintiff.</p>

Plaintiff, as a judgment creditor of Goodenough &Woglom, brought an action against the individuals composing the firm of Goodenough & Woglom, and William A. Jones, Jr., their assignee for the benefit of creditors, to set aside the assignment on the ground that it was in fraud of the assignors’ creditors.

<p>Common Carrier—Injury to Freight—Negligence.</p> <p>Where a common carrier undertakes, per bill of lading, the carriage of wine in casks enveloped in linen covering, without liability for breakage or leakage, and referred to in the bill of lading as being in “apparent good order and condition,” negligence will not be presumed from the mere fact that breakage or leakage occurred. There must be affirmative evidence of the strength and fitness of the casks.</p>

<p>Appeal from special term.</p> <p>Action by John Townshend against Caroline O’Bogert. From a judgment overruling a demurrer to the complaint, defendant appeals.</p>

Paul W. Latham sued Patrick B. Delaney on a foreign judgment. Appeal bv defendant from judgment against him, and from order denying motion for a new trial, made upon the judge’s minutes.

Jacob Wolkoff sued W. E. Tefft and others, and appeals from judgment-for defendant dismissing the complaint, and from order denying his motion, for a new trial made upon the judge’s minutes.

<p>Appeal from special term.</p>

<p>Trespass—Bight to Maintain.</p> <p>In an action for trespass on land, plaintiff testified that he occupied a piece of land, 26 by 107 feet, which he had had surveyed; that defendant used part of the land as a road, and was so using it before the survey; that defendant had made the road by filling; that defendant put a wagon on the road-way so that it stood partly on plaintiff’s line as surveyed; that “defendant occupied the land south of mine, where the drive-way is, and I occupy 26 feet north, where the hoard fence was. ” Held, that plaintiff had neither possession nor title to sustain the action.</p>

Application by the Southern Boulevard Railroad Company to acquire the right to construct and operate its road upon that part of the Southern boulevard which formerly belonged Paul Spofford, deceased. Commissioners appointed to appraise the compensation to be made to owners of lands to be taken made a nominal award of six cents.

Motion by A. Walker Otis for the payment to him of compensation for services as attorney rendered to Susan N. Bowles, as administratrix of Amelia Boos, deceased. From an order denying his motion, he appeals.

Action by Alfred H. Smith and Harrison B. Smith against Henry Clews and Charles M. Foster. The complaint was dismissed at the trial as to the defendant Foster. Defendant Clews appeals from a judgment for plaintiffs entered on the verdict of a jury, and from an order denying a motion for a new trial.

Action by Mary 'S. Benner, as executrix of Hiram Benner, deceased, and individually, against Frank M. Bonta, executor of said Hiram Benner, and others. Two of said defendants, pharles H. Benner'and Frances Duelos, demurred to the.complaint, on the grounds that there was a defect of parties plaintiff, and that several causes of action had been improperly united. The demurrer was sustained on the former ground. Plaintiff appeals from the interlocutory judgment entered thereon.

Action by Henry Hentz and others against Elizabeth F. Miner. Defendant appeals from a judgment for plaintiffs entered on a verdict directed by the court.

<p>'Construction op Lease—Renewal.</p> <p>A lease contained a covenant by the lessors that they, prior to the expiration of the term, would pay to the lessees the value of the buildings erected by the latter on the premises, or would grant them a renewal lease containing like covenants. Meld, that such renewal lease need not contain a covenant for payment for buildings or further renewal. Following Muhlenbrlmck v. Pooler, 40 Hun, 526.</p>

Indictment against William O’Connell for attempt to commit rape.

Motion by Theodore F. Hunter and Henry C. Willis, judgment creditors of the West Side Electric Light & Power Company, that the sheriff be directed to pay over the proceeds of a sale of property under execution issued on their judgment. The motion was opposed by Charles R. Vincent and others, claiming liens on the property sold, and was denied. From the order denying their .motion, said Hunter and Willis appeal.

Action by William M. Hall against Susan L. Roberts and John F. Patterson, as surviving executors and trustees of Marshall O. Roberts, deceased. Plaintiff appeals from a judgment entered on the dismissal of the complaint, at the trial.

Action by James Ferris against Elizabeth W. Aldrich. Plaintiff appeals from a judgment for defendant entered on the dismissal of the complaint at the trial.

Action by Elizabeth Lawton and another, as executors of Samuel Green, deceased, against Samuel G. Corlies and others, for the construction of the will of said Samuel Green. From the judgment entered therein certain of the defendants appeal.

<p>Appeal from circuit court, Hew York county.</p> <p>Action by Lena Levy, as administratrix of Sarah Levy, deceased, against the Dry-Dock, East Broadway & Battery Railroad Company. Plaintiff appeals from a judgment for defendant entered on the dismissal of the complaint at the trial.</p>

At chambers. Actions by Lucius R. Finch against Charles Galligher, and by Henry T. Finch and Edward L. Finch against Charles Galligher and Frank C. Galligher. Defendant Charles Galligher moves to set aside the service of process on him on the ground that it was served on him while attending court within the state as a party, and as an attorney in his own behalf. The following affidavits were filed in support of the motion:

<p>Application by the rector,.wardens, and vestrymen of the Church of the .Messiah for leave to mortgage part of its real estate. The following petition was filed:</p>

Indictment against George W. Morris for rape on a female under the age of 16 years.

Indictment against Charles McKenna, charging, in separate counts, burglary, larceny, and receiving stolen goods. On the trial, the first two counts were abandoned, and on the count for receiving stolen goods defendant was found guilty. From the judgment of conviction entered thereon, defendant appeals.

Action by the Metropolitan Concert Company, Limited, against Howard A. Sperry and Bobert W. Beid. Defendants appeal from an order denying a motion to require Theodore Heilman and Emil Carlbach, sureties on an undertaking given to obtain an order of arrest in the action, to pay the costs recovered by defendants on the judgment in the action. Code Civil Proc.

Petition by Francis A. Zerega and others that a decree admitting to probate the will of Augustus Zerega, deceased, be vacated and set aside. From an order denying the application, the petitioners appeal.

<p>Appeal from court of general sessions, New York county.</p> <p>Indictment against George Frindel for assault. Defendant appeals from a conviction of assault in the second degree.</p>

Action by the Panama Railway Company against Richard L. Johnson. Defendant appeals from a judgment for plaintiff entered on the verdict of a jury, and from an order denying a motion for a new trial. Code Civil Proc.

Submission of controversy upon statement of facts agreed on, between Henry K. S. Williams, plaintiff, and the Mayor, Aldermen, and Commonalty of the City, of New York, defendants.

<p>1. Eminent Domain—Condemnation after Taking.</p> <p>A railroad company may institute proceedings to condemn land after the road has. been constructed.</p> <p>3. Same—Statute of Limitations.</p> <p>Where an elevated railroad company has constructed and is operating its road, without having purchased or condemned the easements of the abutting owners,, the statute of limitations does not run against its right to institute such condemnation proceedings.</p> <p>3. Same—Taking Street—Publication of Notice.</p> <p>Under Laws N. Y. 1876, c. 19S, § 3, providing that, whenever any land required» by a railroad company for the purposes of its road forms a part of any street, the-notice to be given of the application to acquire title to such land shall be served by-publication, publication is required only when land is to be taken, and not in proceedings to condemn easements, etc., appurtenant to land.</p> <p>4. Same—Pending Suit for Injunction.</p> <p>Where a railroad has been built in a street without proceedings had to make compensation to the abutting owners, a pending suit by such owners against the railroad, to restrain the maintenance of the road and for damages, is not a bar to proceedings by the company to condemn the easements of such abutting owners.</p> <p>5. Same— Petition—Endeavor to Purchase.</p> <p>Where the petition in condemnation proceedings alleges that “your petitioner has not been able to acquire title, * * * and is unable to agree for the purchase thereof, * * * and the reason for suph inability is, ” etc., it sufficiently shows that an effort has been made to purchase the interest sought to he condemned.</p> <p>6. Same—Proof of Endeavor to Purchase.</p> <p>An elevated railroad company, before commencing proceedings to condemn easements in property abutting on a street in which the company had operated its road for 10 years, no compensation having been paid for such easements when the road was built or proceedings had to condemn the same, employed reputable and experienced brokers, who had not before been employed by it to examine the property, and fix the compensation which ought to be paid to the owners. The company then offered to pay the sums so fixed, and allowed the owners 48 hours to make answer. Held, that the company in good faith endeavored to purchase.</p>

Application by the Metropolitan Elevated Railway Company and the New York Elevated Railroad Company to condemn land. For former report, see 7 N. Y. Supp. 707. Laws N. Y. 1850, c. 140, § 14, requires such petitioner to.state “that it is the intention of the company in good faith to construct and finish a railroad from and to the places named for that purpose in its articles of association.”

• Action by Elizur V. Foote against‘the Manhattan Railway Company and the Metropolitan Elevated Railway Company. The complaint was dismissed at special term, and plaintiff appeals.

Action by Elizabeth Trope against the Saratoga Association for Improvement of Breed of Horses, etc. A motion to change the place of trial was denied, and defendant appeals.

Action by Fanny Bean against George W. Oarleton and another, doing business as G. W. Oarleton & Co. The parties entered into a contract for the ¡publication of a book written by plaintiff.

At chambers. Application by John Hayes and. Joseph B. Newberger for >mandamus to Charles F. McLean and others, individually and as police commissioners of the city of New York, and as the board of police of said city, ■to appoint certain inspectors of election from' the members of the County Democracy. Relators filed the following petition: , “Your petitioners respectfully show to the court by Foster & Ackley, their Attorneys: “First.

Action by Frederick J. Frowein and others against Moses Lindheim. Plaintiffs appeal from an order granting defendant’s application for a discovery of their books.

Action by John Whalen against the New York Central & Hudson River Railroad Company. Plaintiff appeals from a judgment for defendant entered on the dismissal of the complaint at the trial.

Action, by Virginia. Tide-Water Coal Company against the Mercantile Trust Company, Walter Hamilton and Ferral C. Dinniny, Jr. This action is brought to restrain the proposed sale by the Mercantile Trust Company, as alleged trustee for bondholders, of 809 acres of coal lands in the state of Virginia, the property of plaintiff.

Action by Edward E. Gold and Frederic W. Wright against James Clyne and others. Plaintiffs appeal from a judgment for defendants entered on the report of the referee before whom the cause was tried.

Action by Anna Brinckhard against the Western Union Telegraph Company. Defendant appeals from a judgment for plaintiff entered on the verdict of a jury, and from an order denying a motion for a new trial.

Action by Robert Kell against Solomon Isaacs, Esther Isaacs, and Leopold S. Weiner, brought by plaintiff, as a judgment creditor of defendant Solomon Isaacs, to set aside a conveyance made by said Isaacs and Esther Isaacs, his wife, to defendant Weiner, on the ground that it was made with intent to defraud creditors of Isaacs. Plaintiff appeals from a judgment for defendants entered on the dismissal of the complaint at the trial.

Action by the American Rapid Telegraph Company against Jacob Hess and others. Plaintiff appeals from a judgment for defendants, entered on trial by the court without a jury.

Accounting of Louis V. Durand, administrator of Thomas Barber, deceased. Objections by the next of kin to the account were heard by a referee,, who reported that certain charges made by the administrator should be disallowed. From the decree of the surrogate on such report the administrator appeals.

Action by William De Lacey against the city of Brooklyn for salary as city assessor. There was a judgment for plaintiff, and defendant appeals.

<p>Appeal from special term.</p> <p>Action by John A. C. Gray against the Manhattan Railway Company, the "Hew York Elevated Railroad Company, and the Metropolitan Elevated Railway Company. Defendants appeal from a judgment for plaintiff entered on trial by the court without a jury.</p>

<p>Injunction—Maintenance of Railway.</p> <p>An action to restrain the maintenance of a railway in front of certain property was brought by one having a leasehold estate therein, with a contingent right of renewal. Held, that a perpetual injunction should not be granted; the restraint should be only during the subsistence of plaintiff’s interest.</p>

<p>Appeal from special term.</p> <p>Action by Francis C. Lawrence against the Metropolitan Elevated Bailway Company and the Manhattan Bailway Company. Defendants appeal from a judgment for plaintiff entered on trial by the court without a jury. For former reports, see 8 N. Y. Supp. 326, 10 N. Y. Supp, 743.</p>

Action by Anna Mafia Doyle against the Manhattan Bail way Company and the Metropolitan Elevated Railway Company. Defendants appeal from a judgment for plaintiff entered on trial by the court without a jury. Eor former report, see 8 N. Y. Supp. 323, 11 N. Y. Supp. 65.

Action by Robert Biggart against the Manhattan Railway Company and the New York Elevated Railroad Company.. Defendants appeal from a judgment for plaintiff entered on the report of three referees.

Action by Bernhard Metz against Edward Luckemeyer and others. Defendants appeal from a judgment for plaintiff, entered on the verdict of a jury, and from an order denying a motion for a new trial.

Action by George H. Moore and another, as executors, against the New York Elevated Bailroad Company and another. Judgment was entered on a verdict for plaintiffs, and a motion for a new trial made on the judge’s minutes was denied, and defendants appeal.

Action by the Beethoven Piano Organ Company against the C. C. McEwen Company and others. From an interlocutory judgment entered on an order overruling a demurrer to the complaint defendant the C. C. McEwen Company appeals.

Action by William Palm against the New York, New Haven & Hartford Railroad Company to recover the statutory penalty for charging excessive fares. Judgment was entered for plaintiff on the decision of the judge, after trial before him without a jury, and defendant appeals.

Action by Sarah J. Pirsson and Margaret O. F. Bronson against Oliver M. Arkenburgh. A verdict was directed for plaintiffs, and from the judgment entered thereon defendant appeals. For former report, see 8 N. Y. Supp. 543.

<p>New Trial—When Granted—Questions not Raised at the Trial.</p> <p>On plaintiff's motion for a new trial, after rendition of a verdict against Mm, the court cannot entertain Ms claim that he is entitled to a discount on certain purchases, where such claim was not made at the trial, and there is no evidence that he did not receive the discount.</p>

<p>L Sale—Warranty—Evidence.</p> <p>In an action for the price of eggs, defendant did not deny the allegations of the complaint, hut set up as a special defense a breach of warranty. The person who represented plaintiff at the sale did not warrant the eggs as good, or of any particular quality, but said that they were “a nice lot of eggs, ” and “you will lose hardly anything out of a case of eggs. ” Defendant’s agent examined the eggs, and purchased them on such examination. Held, that the evidence did not sustain the special defense, and a verdict was properly directed for plaintiff.</p> <p>2. Trial—Direction of Verdict.</p> <p>Where it is the duty of the court to direct a verdict, the fact that the jury would not have rendered such verdict without the direction is no ground for disturbing it when rendered.</p>

Action by Solomon Reiss, Sigmund Brady, and Baruch Wolff against the New York Steam Company. Defendant appeals from a judgment for plaintiffs, entered on the verdict of a jury, and from an order denying a motion for a new trial.

Action by Leopold Wormser and Isaac A. Simm against Isaac Levy. Plaintiffs appeal from a judgment for defendant entered on trial by the court without a jury.

Action by Ruben B. Ayres against the Quigley Furniture Company. Plaintiff appeals from a judgment for defendant entered on a verdict directed by the court.

The New York Central & Hudson River Railroad Company appeals from an order vacating a writ of certiorari, and the order upon which it was issued.

Action by Daniel Paxton and James B. Hackett, individually and as executors of John Patterson, deceased, against George W. Patterson, Eliza Brogan, and others. Defendant Brogan demurred to the complaint. Plaintiff appeals from an interlocutory judgment sustaining the demurrer. For that opinion, see 10 N. Y. Supp. 303. For proceedings in surrogate’s court, see 8 N. Y. Supp. 872.

Action by Fritz Hoeninghaus and Henry W. Curtiss against Herman Cantor, assignee for benefit of creditors of Isaac Sickle, to recover possession goods sold by plaintiff's to said Sickle.

Application by the Rochester & Glen Haven Railroad Company to acquire title to certain real estate, of which Ferdinand Griebel and Barbara Griebel and William S. Foster are the owners or persons interested therein.

Action by Augusta G. Genet against the president, etc., of the Delaware & Hudson Canal Company. Plaintiff appeals from a judgment for defendant entered on trial by a referee.

Action of ejectment by Amelia Fuchs against Francis.C. Devlin and others. Plaintiff appeals from a judgment for uefendants, entered on a verdict directed by the court.

Action by Adelbert H. Steele against the Pittsburgh, Shenango & Lake Erie Railroad Company and others. There was an order refusing to continue a temporary injunction, and dissolving the same, and plaintiff appeals.

This is an appeal from the judgment of the Albany county court, entered upon the verdict of a jury. The action was to recover upon an alleged contract to work one year for the defendant, which plaintiff claims that the defendant broke at the end of 10 weeks, and the plaintiff was damaged by reason of such break. The answer denied the contract, and the main contention on the trial was whether there was a special contract for a year’s service and employment.

<p>Trespass—Question for Jury.</p> <p>The question as to the possession of land is a question of fact for the jury.</p>

Action by Louise Dudley Carter against William J. Ferguson. There was an order denying motion for a preliminary injunction to restrain defendant from breaking a contract binding him to perform as an actor exclusively for the plaintiff, and plaintiff appeals.

William Collins, as assignee for the benefit of creditors of George M. Wis-wall, sued Elisha W. Hydorn and others on an action in the nature of a creditors’ bill to set aside conveyances of real estate made by Elisha W. Hydorn to his son, J. Bartlett Hydorn, as alleged, with the intent to defraud the creditors of the grantor. The court submitted to the jury certain questions of fact.

Action by Edward J. King, Jr., and Bennett J. King against Albert Jacobson, Isaac Perlson, and Isaac Bernstein. Defendant Bernstein appeals from a judgment for plaintiffs entered on the verdict of a jury, and from an order denying a-motion for a new trial.

Petition for probate of the will of Rachel Berrien, deceased, by Benjamin-G. Berrien, the executor named therein. Eliza S. Baker and Nancy C. Berrien, contestants, appeal from a decree admitting the will to probate. For former reports, see 5 N. Y. Supp. 37, and 9 N. Y. Supp. 942.

<p>Appeal from judgment on report of referee.</p> <p>Action by Max Frankel against John B. Wathen and others. Defendant Wathen appeals from a judgment for plaintiff, entered on trial by a referee.</p>

Action by William Benson, as surviving partner of the firm of Benson & Brotherton, against Charles A. Gerlach. Defendant appeals from a judgment for plaintiff entered on a verdict directed by the court and from an order denying a motion for a new trial. For former report, see 4 N. Y. Supp. 273,

<p>Wills—Enjoining Probate—Defect of Parties.</p> <p>In an action to establish a will dated in 1858 the plaintiff prayed an injunction to restrain the surrogate from admitting to probate a prior will dated in 1855. It appeared that application for the probate of a third will of the same party, executed m 1883, had been made by a party interested, and resisted by the respondent on account of the incompetency of the testator, and the informal execution of the will. None of the parties interested under the alleged will of 1883 were made parties to the action to establish the will of 1858. Held, that the injunction would be denied, because of the defect of parties.</p>

Action by Fielding L. Williams against Lucy E. Williams, as administratrix of David W. Williams, deceased. Plaintiff appeals from an interlocutory judgment dismissing the complaint upon a demurrer by him to the answer. For the opinion of the special term, see 11 N. Y. Supp. 753.

<p>Foreclosure of Mortgages—Rights of Purchasers—Apportionment of Rents.</p> <p>Rents of mortgaged premises, payable in advance, and collected in advance by a receiver appointed in an action to foreclose the mortgage, for a period extending beyond the date of delivery of the deed to the purchasers at the foreclosure sale, may be apportioned to such purchasers.</p>

<p>Discovery—Examination of Party before Trial.</p> <p>A party asking an examination of his adversary before trial must show special circumstances making it important to take the testimony of such adversary before, instead of at, the trial.</p>

<p>Nuisance—Property of Wife—Action by Husband.</p> <p>A husband who, with his family, occupies a house owned by his wife, may sue for damages resulting from a nuisance maintained in the vicinity, whereby the house is rendered less comfortable, and plaintiff’s (the husband’s) children were made sick; the injuries in such casj not being confined to the realty alone.</p>

Petition by Pauline S. Pearsall and Edward Clarence Spofford for the appointment of an additional trustee under the will of Paul Spofford, deceased. Ebenezer P. Johnson and others, executors of the will of Eugene W. Spofford, deceased, appeal from an order denying their application to revive an appeal by said Eugene W. Spofford from an order appointing such additional trustee. Eor construction of the will of Eugene W. Spofford, see 9 N. Y. Supp. 36.

Exceptions from circuit court, New York county. Action by Claudine, B. Weed against Van Wyck Hewlett. Plaintiff’s exceptions were ordered to be heard in the first instance at general term.

Action by John H. Cheever against Avery T. Brown, as assignee for the benefit of the creditors of William H. Guion, and the said William H. Guion. The referee’s report was confirmed, and a decree was entered directing distribution of the assigned estate, and defendant Guion, as receiver of Williams & Guion, appeals. For former reports, see 7 N. Y. Supp. 918, 8 N. Y. Supp. .931, mem.

<p>Pleading—Motions to Strike Out.</p> <p>In an action by an administrator for damages for the death of his intestate from injuries by the collision of two British ships, brought under an act of parliament authorizing such action, the answer set up that the act required every action under it to be brought within 12 months after the death, and that this action was not commenced within the 12 months. Plaintiff, replying to these allegations, as to the first, denied any knowledge or information sufficient to form a belief, and, as to the allegation in respect to the commencement of the action, denied the same on information and belief. Held that, as it appeared from the complaint that the action was commenced nearly two years after the death of plaintiff’s intestate, the former denial might, on motion, be stricken out as sham, but that the denial as to the contents of the act, though probably false, being in the language authorized by Code Civil Proc. § 514, and not being shown to be false by anything in the record, could not be so stricken out. Affirming 11 N. Y. Supp. 547.</p>

Action by Isaac Morley against the mayor, aldermen, and commonalty of the city of New York. Defendants appeal from a judgment for plaintiff entered on a verdict directed by the court.

Action by Thomas Williams, as administrator of Lillie A. Williams, deceased, against Rebecca Gardiner. Defendant appeals from a judgment for plaintiff, entered on the verdict of a jury, and from an order denying a motion for a new trial.

Action by Granger A. Hollister and others against Jacob M. Kolb. Defendant moves for a new trial on ease and exceptions ordered to be heard in the first instance at the general term, after a verdict for plaintiff directed by the court at the circuit.

Action by Calvin H. Quick against Rosa C. Leigh. From a judgment of the county court reversing the judgment of the justice’s court in her favor, plaintiff appeals.

<p>Appeal from Monroe county court.</p> <p>Action by Fred P. Wilcox, as executor, against Quincy Van Voorhis and Francis A. Van Voorhis, to foreclose a mortgage. Judgment for plaintiff. Defendants appeal.</p>

Action by Francis B. Brewer against James E. Ford. From a judgment entered on a verdict for plaintiff for $3,515 damages, besides costs, and also from an order denying a motion for a new trial, defendant appeals. For former reports see 7 N. Y. Supp. 244, and 9 N. Y. Supp. 949.

Action by Frederick A. Sehroeder and Isidore M. Bon against Daniel Frey, Isidore Frey and Jacob L. Haas, for the price of goods sold and delivered. Defendants appeal from a judgment for plaintiff entered on the verdict of a jury, and from an order denying a motion for a new trial. Code Civil Proc.

Thomas H. Eddy was convicted of selling adulterated milk, and from an order of the court of sessions of Monroe county affirming the judgment of the police court of the city of Rochester, and an order denying a motion for a new trial, he appeals.

<p>Motion for reargument.</p> <p>For decision on hearing of appeal, see 9 N. Y. Supp. 212. For decision at special term, see Id. 563.</p>

Action by George Johnson against Charles R. Tyng. Defendant appeals from a judgment for plaintiff, entered on trial by the court, a jury having been waived.

<p>Wills—Rights oe Legatees—Failure to Make Distribution.</p> <p>Where legatees take .possession of the property bequeathed to them, and use and control it as their joint property, and pay off the debts of their testatrix, and about four years afterwards some of the legatees obtain letters testamentary, the property bequeathed and its increase will be regarded as the property of the legatees, and subject to an execution against them, and cannot be recovered by those who procured the letters testamentary as the property of the estate of testatrix; judicial distribution not being necessary to vest title to the property in them.</p>

<p>Motion by defendant for a new trial on a case and exceptions ordered to be heard at the general term in the first instance, after verdict for the plaintiff at the circuit. The action was on a note by Union Bank of Rochester against Harris Neuman.</p>

Action by James B. Titman and another, as administrators of Thomas O’Maley, deceased, against the Twelfth Ward Bank of the city of Hew York and the mayor, etc., of the city of Hew York. The defendant bank appeals ■ from a judgment for plaintiffs entered on trial by the court without a jury.

Action by Ellen Paul, individually and as executrix of her deceased husband, against Augustus P. Stevens and Julia Van Da Linda. The defendant Van Da Linda answered the complaint, and at the trial a verdict was directed in her favor. Plaintiff appeals from the judgment for defendant Van Da Linda entered on the verdict, and from an order denying a motión for a new trial. For former report, see 10 FT. Y. Supp. 442.

Probate of the. will of George A. Bartholic. Decree for probate. Contestants appeal. Code Civil Proc. N. Y. § 2588, provides that, when the reversal or modification of a decree is founded upon a question of fact, the appellate court must, if the appeal was from a decree upon a petition to admit a will to-probate, or to revoke a probate, make an order directing a trial by jury upon the material questions of fact.

Action by Paul M. Berger and others against Henry Erdtmann, Gustave Varrelm.ann, and others, to set aside a judgment confessed by said defendants Erdtmann and Varrelmann to defendant George E. Varrelmann. From a judgment for plaintiffs entered on trial by the court without a jury, defendant George E. Varrelmann appeals.

The administrator c. t. a. and next of bin of Julia A. T. Grant, the former executrix, appeal from a decree settling the accounts of the administrator with the will annexed of Louis B. Grant, deceased, and directing the distribution of the assets.

Motion by S. Hartman, receiver of the property of Samuel Jack, to punish the defendant Jack for non-compliance with a judgment requiring him to pay over to the plaintiff the sum of $106.33. Motion denied, and plaintiff appeals.

<p>Appeal from Ontario county court.</p> <p>Action by Henry Slingerland against William H. Norton. From a judgment of the county court affirming a judgment of a justice’s court defendant appeals.</p>

Application of the Bank of Attica to change its corporate name. The Bank of Commerce in Buffalo appeals from an order authorizing the petitioner to assume the name of the “Buffalo Commercial Bank.”

Action by William F. Townley against the Fall Brook Coal Company. From a judgment in favor of plaintiff entered on the verdict of a jury, and from an order of special term denying a motion for a new trial on a case and ■exceptions, defendant appeals.

■ Action by Edward G. Dickson and others against Mark Mayer, a corporation, Dessa Mayer, Charles Kaufman, and the sheriffs of the city and county of New York, and the county of Kings. Defendants Charles Kaufman and Dessa Mayer appeal from an order continuing an injunction restraining the-payment of the proceeds of sales of property of the defendant corporation by virtue of executions under judgments in favor of the appellants against said corporation.

Action by Joseph Povall against the Dansville Cigar Manufacturing Company, to recover moneys loaned. From a judgment entered on the report of a referee, defendant appeals.

Action by Charles Burlingame and another against James D. Shelmire. Judgment for plaintiffs for the sum of $68.90, damages and costs, and defendant appeals.

Arba Briggs sued John Langford to restrain the foreclosure of a mortgage. A judgment was entered for defendant on the report of a referee, and plaintiff appeals. For former reports, see 7 N. Y. Supp. 358, and 8 N. Y. Supp. 944.

<p>Master and Servant—Compensation.</p> <p>One who agrees to sell goods on commission for another during a trip which he then contemplates is entitled to the specified commissions on goods sold on orders received in response to letters written by him at the employer’s request after his return, where no new contract of employment is shown.</p>

Byron D. McAlpine and others, executors of Henry S. Potter, deceased,appeal from certain portions of a decree settling their accounts; and Charles B. Potter and Albert Potter, contestants of the account, appeal from other portions thereof.

Action to foreclose a mortgage, by Joseph Z. Culver against Jane M. Pullman and another. From a judgment directing a foreclosure of the mortgage and a sale of the mortgaged premises defendants appeal.

Action by Seth H. Tracy against Solomon H. Tracy. From an order and interlocutory judgment overruling a demurrerito certain causes of action stated in the complaint, defendant appeals.

Exceptions from circuit court, Monroe county. Action by Nelson L. Button against Rathbone, Sard & Co. Defendant moves for a new trial on exceptions taken at circuit, and ordered to be heard at the genera] term in the first instance.

Robert R. Rhodes & Co. sued Daniel E. Hewhall to recover freight money. Judgment in Erie county on report of referee for defendant, and plaintiffs appeal.

<p>Sale—Discount erom Price—Payment—Return of Goods.</p> <p>On asaleof goods subject to a certain discount if paid for before a certain time, the purchaser is entitled to the discount only on full payment of the price in cash before the expiration of the time specified, and a return of the goods is not such a payment as is contemplated by the'contract.</p>

<p>Appeal from circuit court, Monroe county.</p> <p>Action by James H. Hooker against the city of Rochester. From a judgment for $800 damages, besides costs, being the amount of a verdict on issues framed in an action for maintaining a nuisance, and by which also the defendant was permanently enjoined from continuing such nuisance after October 1, 1889, defendant appeals.</p>

Action by Elizabeth Blazy against Hector McLean. From a judgment entered on an interlocutory judgment, previously rendered, and on the report of a referee to whom had been referred the matter of the rents and profits of certain real estate while in defendant’s possession, defendant appeals.

Action by Thomas L. Hulburt against Fletcher A. Defendorf, as supervisor, etc. From an order vacating an order which dismissed the appeal of the defendant from a judgment entered upon the report of a referee defendant appeals.

<p>Action by Alphonse Alker against Marie C. S. Alker and others.</p>

It is alleged in othe affidavits upon which the attachment was granted, among other things, that the defendants, as copartners under the firm name of Williams & Co., are indebted to the plaintiff in the sum of $2,500, with interest thereon from January 14, 1890, upon a promissory note made by said firm; that on the 31st day of January, 1890, defendants, as such copartners and individually, made, executed, and delivered to one Gates a general assignment of all of their…

Action by Siragan S. Costikyan, as administrator, etc., against the Rome, Watertown & Ogdensburg Railroad Company. From a judgment entered on a verdict for plaintiff, and from an order denying a motion for a new trial upon the minutes of the court, defendant appeals.

Action by. Etta Alexander against the Rochester City & Brighton Railroad Company. From a judgment in favor ot the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial on the minutes, defendant appeals.

<p>1. Libel—Indictment—Averment of Publication.</p> <p>Under Pen. Code.N- Y. § 242,-defining “libel” as “a malicious publication by writing, printing, picture, effigy, sign, or otherwise than by mere speech, ” an indictment which fails to allege that the libel was written, etc., is fatally defective.</p> <p>2. Same—Facts Unknown to Grand Jurors.</p> <p>■ Under Code Grim. Proc. N. Y. § 275, providing that an indictment must contain “a plain and concise statement of the act constituting the crime, without unnecessary repetition, ” an indictment for libel must aver a publication, and state the pelsons to whom and the manner in which it was published, or that such facts were unknown to the grand jurors.</p> <p>8. Same—Evidence—Malicious Intent.</p> <p>Defendant, in an indictment for libel, may be asked, as a witness in his own béhalf, whether he had any malice or malicious intent in doing the act alleged to constitute the libel.</p>

<p>Appeal from, special term, Monroe county.</p> <p>Action by Mary S. Eldridge against Charles E. Kenning. There was a judgment for plaintiff, and defendant appeals.</p>

<p>Criminal Law—Separation op Jury.</p> <p>A conviction of felony will be set aside where it appears that the officer having the jury in charge took them, without leave of the court, to a hotel a quarter of a mile from the court-house to dinner; that before dinner one of the jurors went alone to the bar-room and drank brandy; that after dinner another juror went alone to the water-closet, and meanwhile the jury set oat to return to the court-house, and such juror did not overtake them until they arrived; and that when the officer, by leave of court, took the jury to the hotel for supper, the same juror who had done so before again went alone to the bar-room and drank brandy.</p>

Submission of claim of Margaret Champion against Elam Williams, as executor of Ezra Champion, deceased, to the determination of a referee, under Laws N. Y. 1859, c. 261, § 2. The claimant appeals from an order of the special term, confirming a report of the referee appointed with the approval of the surrogate to hear and determine the claim of the plaintiff, and also from the order denying plaintiff’s motion to set said report aside.

Application by Isaac Lichtenstein for a writ of habeas corpus to Thomas C. Hodgson, as sheriff. Prom an order dismissing the writ, and remanding him to the custody of the sheriff, relator appeals.

Action by Lucy V. Owens against R. Hudnut’s Pharmacy, a corporation. Defendant appeals from an order striking out, as frivolous, irrelevant, and redundant, a portion of its answer, which “denies each and every allegation in the complaint not herein specifically admitted or denied.”

Application by the Lewis & Fowler Manufacturing Company, as relator, for mandamus to compel John C. McGuire, registrar of arrears of the city of Brooklyn, to cancel upon the records in his office the water-rates for the years 1870 and 1871, and a sewer assessment, upon the premises owned by relator, and also to cancel the sales for their non-payment, and the certificates issued thereon. Writ denied, and relator appeals.

<p>Partnership—Debt to Firm—Debt oe Partner—Set-Off.</p> <p>An agreement by one partner to discharge a debt due the firm by setting off his individual liability against it is not binding on the firm unless made with the consent of the other partners.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by William H. Curtin against Edward J. Curtin, his brother, for money disbursed for defendant and on assigned accounts for goods sold and money loaned him. Judgment for plaintiff. Defendant appeals.</p>

<p>Evidence—Contract between Third Persons.</p> <p>A charter-party which contains the provision “commission of five per cent, on the estimated amount of charter, payable by owner, ” etc., is admissible as evidence of an agreement by the owner to pay a 5 per cent, commission to the broker who brought the parties together, although he was not a party to the instrument, when it appears that it was signed at his office and in his presence.</p>

<p>Proceedings to sell the real estate of Joseph Anton Nagel, deceased, to pay his debts.</p>

<p>1. Executors and Administrators—Continuation of Testator’s Business.</p> <p>Testator provided by his will that his executors might continue the business of the firm of which testator was a member “on such terms as to sharing in the profits and losses as they shall deem just and proper. ” The partnership agreement between testator and his copartner provided that in case of the continuation of the business by the executors they shall pay to testator’s copartners “such annual amountas shall or maybe agreed upon in lieu of the services of” testator. Held, that an agreement to allow the surviving copartner $3,500 a year was authorized, though for several years testator had personally taken no part'in the management of the business.</p> <p>3. Same—Division of Profits.</p> <p>The entire amount of the annual salary allowed the surviving partner was properly charged against the estate under the terms of the agreement between the executors and the surviving partner. Distinguishing In re Laney, 3 N. T. Supp. 443.</p> <p>8. Same—Purchase by Executor.</p> <p>On the sale by the executors of the business and plant of a firm of which testator was a member, the surviving member became the purchaser for $300, though it appeared that the good-will alone was worth $3,750. Afterwards the purchaser transferred a half interest to one of the executors for $150, and the business was continued by them. Held, that this was an indirect purchase by the executors, and within the prohibition of the law.</p> <p>4. Same.</p> <p>In such case, part of the property having been disposed of, and it appearing that the good-will would probably not bring an adequate price on a second sale, the sale will not be set aside, but the executors’ accounts will be surcharged with the difference between the amount realized at the sale and the value as shown by the executors’ inventory.</p> <p>5. Same.</p> <p>After the purchase by the executors and the surviving partner, and the continuation of the business by them, the executors issued a circular to those interested in the estate, stating that they had received an offer from the successors in the business to buy the outstanding accounts at a discount of 33% per cent., and that they had no interest but that of the heirs in the matter. Held, that an assignment by the heirs of the accounts would be set aside, and the executors would be required to account for the sum realized on them.</p>

<p>Exceptions from jury term.</p> <p>Action by Lida C. Schwarz against the Family Fund Society. The court directed a verdict for plaintiff, and ordered the exceptions taken to be heard in the first instance at the general term.</p>

Action by Oceana A. Bancroft against the Home Benefit Association of Hew York. Plaintiff appeals from a judgment for defendant, entered on trial by the court without a jury. An extra allowance of $500, besides costs and disbursements, was granted to defendant by the judgment, without notice to plaintiff of application therefor.

<p>Appeal from trial term.</p> <p>Action by Charles A. Seddon and Adolph B. Rice against Robert Donald. Plaintiffs appeal from a judgment for defendant, entered on the verdict of a jury, and from an order denying a motion for a new trial.</p>

Action by Benjamin Weeks against James O’Brien, executor of Ellen O’Brien, deceased. Plaintiff appeals from a judgment for defendant, entered on the dismissal of the complaint at the trial.

<p>Deceit—False Repbesehtations.</p> <p>In an action on a note given for a scholarship in plaintiff's school, to be used by-defendant’s son, who was a minor living with defendant, it appeared that defendant expressed some doubt whether he could get his son to go to the school. Held, that a recovery cannot be defeated on the ground that defendant was fraudulently induced to sign the note by the representations of plaintiff’s agent that defendant’s son had agreed to go to the school, as it was defendant’s duty to ascertain from his son whether he would attend the school.</p>

Action by Frederick Kelver against the New York, Chicago & St. Louis Railroad Company to recover the value of two heifers which were killed on the defendant’s railroad in the city of Buffalo, by being struck by an engine. There was judgment for the plaintiff. It was alleged and proved that the company failed to erect and maintain fences on the sides of the railroad.

Action by Patrick J. Fox against Daniel F. Quinn, as executor, etc. Plaintiff moved to have the cause preferred. The notice of application for the preference was served with a notice of trial, but it appeared that the cause had been previously noticed for trial by plaintiff without a notice of application for a preference, and that the cause was then placed upon the calendar, where it now stands awaiting trial.

Action by Emma K. Ramsay against Reon Barnes to recover a balance claimed to be due on a certain promissory note made by defendant, as follows: “550.

<p>Release—Delivery—Presumption.</p> <p>The subscribing witness to a release under seal testified that he saw it executed on the day of its date, and also that he saw it delivered, but there was no proof of the actual time of delivery. Held, that the presumption that it was delivered on the day of its date was not affected by the fact that the acknowledgment annexed to it was taken on a subsequent day, it not appearing that the person executing the release was then in possession thereof.</p>

Action by Charles Bab against Moritz J. Hirschbein. Defendant appeals from a judgment of the general term of the city court, affirming a judgment of that court entered on the verdict of a jury, and an order denying a motion for a new trial. For former report, see 11 N. Y. Supp. 776.

<p>1. Pleading—New Matter—Failure to Reply.</p> <p>In an action to recover possession of certain goods, brought by a mortgagee thereof, alleging that he was entitled to immediate possession, against the mortgagor and a warehouseman having the actual possession of the property, the latter’s answer denied plaintiff’s allegations and set up a lien for storage. Held, that without a ■ reply or amendment of the pleadings, plaintiff might show that the warehouseman had neither a debt nor lien when the action was brought, or afterwards.</p> <p>2. Warehousemen—Lien—Mortgaged Chattels.</p> <p>A warehouseman has no lien on mortgaged goods stored with him by the mortgagor thereof after default, and without the knowledge or assent of the mortgagee, as against the mortgagee, whose right to the possession of the goods became absolute on the default. Following Baumann v. Post, ante, 213.</p> <p>8. Costs—Appeal from District Court.</p> <p>Under Code Civil Proc. N. Y. § 3213, providing that on appeals from district courts of the city of New York to the court of common pleas, “where a judgment is modified, or where a new trial is ordered, costs shall be in the discretion of the appellate court, ” costs must be awarded to the respondent if the judgment is affirmed; the provision to that effect of section 3067, relating to appeals from justices’ courts, apply also to appeals from district courts. Following Clark v. Carroll, 61 How. Pr. 47.</p>

Action by John F. Saunders, Chauneey Ives, and Albert Crouze, against William H. Payne and Frederick Steck. Defendant Payne answered the complaint, and appeals from a judgment of the general term of the city court, affirming a judgment of that court entered on the verdict of a jury, and an order denying a motion for a new trial.

<p>1. Tenancy in Common—How Severed.</p> <p>Defendant agreed with certain persons to manufacture into cheese, at §1.10 per hundred, all the milk that they should bring to his factory, sell it, and, after deducting the expense of making, pay over to each the sum due according to the amount of milk furnished by him. Meld that, even if the persons furnishing the milk were tenants in common in the cheese manufactured, such tenancy was severed by the sale of the cheese and the ascertainment of the share of each.</p> <p>2. Set-Off and Counter-Claim—Instructions.</p> <p>Defendant agreed to manufacture into cheese at a certain price per hundred all the milk sent to his factory by plaintiff and others, sell the cheese, and pay to each the sum due, after deducting the expense of manufacturing, according to the amount of milk furnished by each. In an action for a sum alleged to be due plaintiff on account of milk furnished, defendant interposed as a counter-claim that plaintiff had agreed to furnish for the season, which he failed to do. Held, that the counter-claim was disposed of as favorably to defendant as he Has the right to ask by an instruction that, if the contract was for the season, defendant was entitled to recover any damages that he sustained, unless plaintiff was justified in refusing to deliver milk.</p>

Exceptions ordered to be heard at general term. Action by EIise Kohler and others against John Lindenméyer and another. At the trial the court directed a verdict for plaintiffs, to which defendant excepted, and his exceptions were ordered to be heard in the first instance at the general term.

Action by Mary Cambreleng and another against Euphemia C. Purton and others for partition of the real estate of Alfred Colvill, deceased, intestate. Morris Littman, the purchaser at the sale in partition, moved to be relieved from his purchase, and to have the moneys paid by him on account of the purchase price and his other expenses repaid to him, which was denied. From the order denying his motion said Littman appeals.

<p>Appeal from judgment entered upon the report of a referee.</p> <p>Action by John D. Spicer and Henry E. Thomas against Edward Snyder to recover of defendant moneys alleged to have become due to plaintiffs, as assignees of Quimby & Vandenburgh, upon their contract with defendant to build a house. Quinby and Vandenburgh were partners as house builders. On the 12th day of February, 1884, they made a contract in writing with the defendant, whereby they agreed to build for him a two-story frame dwelling-house upon his lot, and furnish all the materials, according to the plans and specifications, for $4,393, 75 per cent, of which the defendant agreed to pay from time to time as the work progressed, and the balance when completed, the building to be completed May 1, 1884. Quinby & Vandenburgh were insolvent, and known to be so by the defendant. At the time of making said contract Quinby & Vandenburgh told the defendant that they had no money or means to carry it out, and that the defendant would have to advance the moneyas needed to pay for the work and materials put into the building, and the defendant assented thereto. The plaintiffs were lumber dealers in the city of Troy. They knew the insolvency of Quinby & Vandenburgh, and were their creditors at the date of the contract with defendant in the sum.of $489.53 for lumber which they had furnished them for a house which they were then building for one Edmans, and they continued thereafter to furnish them lumber for the Edmans house until the total indebtedness of Quinby & Vandenburgh to the plaintiffs for such lumber was $1,086.84. Vandenburgh was also.at the same time indebted to the plaintiffs for lumber in the sum of $215.31. On the 4th of March, 1884, Quinby & Vandenburgh gave the plaintiffs the following assignment: “For value received, we hereby sell, assign, and transfer to J. D. Spicer & Go., of Troy, ÜST. T., all moneys now due or hereafter to become due upon the annexed contract with Edward Snyder, and hereby authorize said John D. Spicer & Go. to collect the same in our name or otherwise. This assignment is given as, collateral security to said John D. Spicer ,& Co. to secure them the payment of all moneys now due or hereafter to become due to said J. D. Spicer & Go. from us or either of us.” On the same day the plaintiffs gave the defendant notice that they held such an assignment. Quinby & Vandenburgh commenced the construction of defendant’s house. On April 1, 1884, their firm was dissolved, Quinby withdrawing. Thereafter Vandenburgh carried on the work alone. The plaintiffs furnished Quinby & Vandenburgh, and, after the dissolution of the firm, Vandenburgh, lumber for the defendant’s house, which was used in its construction, of the value of $1,390.93. The defendant paid plaintiff $1,018.25 thereon; $372.68 remains unpaid. Quinby & Vandenburgh, and, after their separation, Vandenburgh, employed subcontractors, masons, carpenters, and workmen, and contracted for materials to complete the defendant’s house. After the work had so far progressed that, including the lumber furnished by plaintiffs, $2,700 had become due from defendant thereon, the masons, carpenters, and other workmen stopped work, because "Vandenburgh did not pay them. They refused to work unless the defendant would agree to pay them. The defendant, in order to procure them to finish the house, promised to pay them for what they had done and should thereafter do. Both Quinby So Vandenburgh and Vandenburgh individually omitted to pay for a considerable part of the materials furnished, and liens to the amount of several hundred dollars were filed against the house. The defendant paid for the said work and materials, over and above his payments to plaintiffs, $2,343. The said labor and materials thus paid for were necessary in the building of the house, and the payments were made with the consent of Vandenburgh. The contract required the contractors to paint the house inside and out with three coats of good white lead and oil paint. The house was painted, but not according to the contract.</p>

Action by Celestia Keenan and others against Anne Keenan to set aside a deed. A demurrer of .defendant to the bill was overruled, and defendant appeals.

<p>Appeal from court of general sessions, Hew York county.</p> <p>Indictment against John B. Dean for larceny. Defendant appeals from a judgment of conviction.</p>

Action by John B. McSherry against the trustees of the village of Canandaigua for personal injuries. Judgment for plaintiff on a verdict at circuit in Ontario county, from which and from an order denying a motion for a new trial defendant appeals.

■Application by the attorney general to compel Theodore W. Myers, comptroller of Hew York city, to issue revenue bonds of the city for the purpose of paying the state tax for 1889.

Action by Mary E. Witty against Thomas C. Acton and Alphonso S. Sherwood. A demurrer to the complaint was sustained, with leave to plaintiff to amend, and an interlocutory judgment for defendants was entered thereon. Plaintiff not having served an amended complaint within the time allowed therefor, final judgment was entered for defendants. From such final judgment plaintiff appeals.

<p>Appeal from circuit court, New York county.</p> <p>Action by Herman Cantor, as assignee of Isaac Sickle, against Ferdinand Levy, coroner, and John Claflin and others. Defendants Claflin and others appeal from a judgment for plaintiff entered on the verdict of a jury, and from an order denying a motion for a new trial.</p>

<p>Action to Set Aside Fraudulent Conveyance—Parties.</p> <p>In a suit to set aside conveyances as fraudulent it appeared that such conveyances were executed under an agreement by which Y. individually, and the firm of Y., Limited, conveyed all of their property to the Y. B. Co., a corporation, the firm receiving therefor capital stock of the corporation, secured by mortgage bonds, the-corporation to assume payment by means of its mortgage bonds, of all the creditors of the Y. firm, and of Y. individually, who should accept the provisions of the-agreement. Said agreement further provided that the Y. B. Co. should execute a. mortgage to a trust company to secure the payment of the bonds, and that the firm of Y. should assign the capital stock received by it to trustees for the same purpose, and that said firm and the N. Y. & S. I. B. Co. should cause the stock of the latter to be assigned to the same trustees for the same purpose, whose creditors should be paid in the same manner as those of the Y. firm, and of Y. individually. All of the parties to this agreement, which was carried out, except the N. Y. & S. I. Bi Co., and the creditors accepting its terms, were made parties defendant by plaintiff. Held, that the N. Y. & S. I. B. Co. and the aforesaid creditors, being parties to such agreement, were necessary parties to any suit to annul the same, and that the latter were not sufficiently represented by the trust company, as to any rights acquired by them directly under the agreement, to obviate the necessity of making them parties to the suit.</p>

Action by Henry Woods against Henry Gledhill. Defendant appeals from an order denying a motion by him for a bill of particulars of plaintiff’s claim. For former report, see 9 N. Y. Supp. 266.

<p>Assignment for Benefit of Creditors—Action to Set Aside—Findings.</p> <p>The complaint in an action to set aside an assignment of firm and individual property as in fraud of firm creditors alleged that the assignment was fraudulent and void, and was made with intent to hinder, delay, and defraud the assignors’ creditors. The assignment, after preferring certain firm liabilities, directed the residue of the assigned estate to be applied to the payment of “ all debts and liabilities now due or to grow due from the said parties of the first part, [assignors,] together or respectively. ” The court found that the assignee was directed, after payment of the preferred creditors, pay firm and individual debts ratably out of the proceeds of firm and individual property, without discrimination; and, as a conclusion of law, that the assignment was fraudulent and void as to the unsecured creditors of the firm. Held, that the finding of fact was in accordance with the allegations of the complaint, and supported the conclusion of law.</p>

Action by Augustus Frank and others against Charles L. Bingham. From the findings and decision of the court both parties appeal.

The court below ordered the consolidation of two actions for partition, and two actions for foreclosure of mortgages, so as to make one action for partitian and one action for foreclosure. Code Civil Proc.

Action by John J. McDonald against William H. Bayne and others tor an injunction. There was judgment for plaintiff, and defendants appeal.

Action by Henry W. Bates, as receiver of the United States Stamping Company, against John S. Dickerson and others. Plaintiff appeals from an order staying proceedings until payment of the costs of a former action.

Certiorari on the relation of Thomas A. Carman to review the action of the board of police commissioners of the city of New York in dismissing relator from the police force.

Petition for appraisement of legacies under the will of Hiram J. Forrester, subject to tax under the collateral tax act. The Methodist Episcopal Church Home, one of the legatees under the will, appeals from an order fixing the tax on the legacy bequeathed to it.

Action by John W\ Rushmore, as executor, etc., of Jeremiah Rushmore, ¡against Frank Rushmore and others, impleaded with Mary Rushmore.

Action by Anna L. Greer against Thomas H. Greer and others for partition. William B. Scott, the father of the plaintiff, had been the owner of two parcels claimed by defendant. He died in February, 1887. By his will he devised all his real estate to the plaintiff and to her husband, the defendant Thomas H. Greer, as tenants in common. The plaintiff brought this action to partition the lands so devised, alleging that the two parcels were included.

<p>Appeal from special term, Onondaga county.</p> <p>Final accounting of Edward S. Dawson, Jr., as assignee of the estate of • Henry M. Ashcroft and John B. Edwards and the firm of Ashcroft & Edwards. L. D. V. Smith appeals.</p>

<p>Exemptions—Recovery of Exempt Property—Demands.</p> <p>Code Civil Proc. N. Y. § 1390, provides that certain specified articles of personal property, when owned by a householder, shall be exempt. Section 1391 gives an additional exemption of “necessary household furniture, working tools, and team, * * * not exceeding in value $250. ” Section 2909 provides that a constable must execute a warrant of attachment by levying on the goods of defendant “not exempt from levy and sale by virtue of an execution. ” Held that, in order to maintain an action to recover as exempt under section 1391 goods which have been taken under attachment, plaintiff must assert his claim, and demand a return of the goods.</p>

Action by Peter J. Lally against Jonas A. Emery for slander. The plaintiff alleged the speaking of certain words of and concerning him by the defendant, which were alleged to have been intended to charge the plaintiff with having committed the crime of rape, or attempting to commit that crime. Both the plaintiff and defendant were soldiers in the United States army, and the person to whom the words were spoken was a member of the same company with the defendant.

Action by Green W. Ingalls against Silas B. Hahn. From a judgment for plaintiff for $3,853.9.4, entered on the verdict of a jury, and from an order denying a motion for a new trial made on the minutes of the trial judge, defendant appeals.

Accounting of Frederick Emerson, as executor of the last will and testament of Asahel Read, deceased.

Application by Robert Schell, as assignee of Edward Schell, for an order that an attorney pay over to him money alleged to have been recovered in certain proceedings on behalf of said Edward Schell, or that an attachment issue against said attorney as for a contempt. The attorney appeals from an order granting the application.

Action by Frank D. Grim, executor, and Ella E. Stone, executrix, of the last will and testament of Justus S. F. Crim, deceased, against Rufus G. Starkweather and others. From a judgment entered in favor of the plaintiff for $16,919.06, defendant Starkweather appeals.

<p>Appeal from circuit court, Hew York county.</p> <p>Action by Leonhard Hilsenbeck against John M. Gubring. There was judgment for defendant, and plaintiff appeals.</p>

Action by Arthur Furber against Alexander McCarthy and another, tried before Justice Beach, without a jury. There was judgment for plaintiff. Defendants appeal. For former reports, see 4 N. Y. Supp. 274; 5 N. Y. Supp. 947; 7 N. Y. Supp. 613; and 8 N. Y. Supp. 932.

<p>Municipal Coeporations—Runaway Teams—Obstructions in Street.</p> <p>In an action against a village for injuries sustained while crossing defendant’s street, it appeared that a horse driven by a third person became frightened at a locomotive, and ran away. The wagon struck against a telegraph pole set in the street between the sidewalk and the drive-way, and threw the driver out, and the horse broke loose from the wagon, ran down the street, and ran over plaintiff. There was no evidence that the telegraph pole was improperly set, or was improperly maintained, where it was; and it appeared that plaintiff attempted to cross the street, which was much traveled, without looking for approaching teams. Held, that the evidence did not show any negligence on the part of defendant which was the proximate cause of defendant’s injury.</p>

<p>Appeal from trial term.</p> <p>Action by Clark Surdam against Wesley Ingraham and William Perkins. Erom a judgment for defendants, plaintiff appeals.</p>

Action- by Henry D. G. Carr and Philip H. W. Jones against Hector B. Johnson, as sheriff. From a judgment entered on a verdict directed by the court in favor of defendant, plaintiff appeals.

Action by Nathan Rightmire against James Shepard to recover damages alleged to have been occasioned by the defendant’s cattle while trespassing upon the plaintiff’s land, and for destroying the plaintiff’s fence. From a judgment of the county court affirming a judgment entered in a justice’s court for costs, plaintiff appeals.

<p>Appeal from special term, New York county.</p> <p>Suit by Charles Boyle and Peter Butterly, tax-payers, against Hugh J. Grant, as mayor of the city of New York, Theodore W. Myers, as comptroller of the city of New York, and Thomas P. Gilroy, as commissioner of public works of the city of New York, to restrain the execution of an electric light contract, under chapter 531 of the Laws of 1881, as amended by chapter 673 of the Laws of 1887. Appeal by plaintiffs from an order denying a motion for the injunction. The opinion of the court below is as follows:</p>

Action by Theodore E. Macy and others against the Metropolitan Elevated Railway Company for damages to plaintiffs’ property from the operation of defendants’ road. There was judgment for plaintiffs, and defendants appeal.

Action by Charles A. Burt against Oneida Community, Limited, and others. Upon the hearing before the referee a stipulation was entered in his minutes to the effect that the referee might fix his own fees; and thereafter a stipulation was signed by the parties in the following language: “It is hereby stipulated that the referee in this action may fix the amount of his fees without regard to the provisions of the statute.

Action by Emma J. Smith against Edward J. Gunn. From a judgment entered on a verdict for plaintiff, and from an order denying a motion for a new trial on a case and exceptions, defendant appeals.

<p>Reference—Proceedings—Right to Withdraw Counter-Claim.</p> <p>In a proceeding before a referee a counter-claim set up in the defendant’s answer may be withdrawn at any time during the course of the trial; the defendant, as to such withdrawal, occupying the position of a plaintiff who sustains a nonsuit upon his claim.</p>

Action by the Cassa Marittima against the Phenix Insurance Company on a policy of insurance; there was judgment for plaintiff and defendant appeals. Argued before Van Brunt, P. J., and Brady and Daniels, JJ.

This was an action by one Stillings, as assignee of Richard Taylor, against one Haggerty, as executor of John Molloy. There was judgment for defendant, and plaintiff appeals.

Action by Julia T. Munroe against Jacob Crouse and Giles Everson. From an interlocutory judgment entered on a decision of the special term, adjudging that the plaintiff was entitled to dower, to be admeasured to her out of certain premises owned by the defendants, Crouse and Everson, and to damages against them for withholding such dower, and appointing a referee to admeasure her dower, and ascertain the amount of such damages, defendants appeal.

Final accounting of Humphrey Sisson, as assignee for the benefit of creditors of William W. Herrick and Henry H. Ayers, individually and as co-partners.

Probate was granted, and John McArthur appeals. Code Civil Proc.

The Lee Arms Company made application to this court by petition for an order instructing the receivers in this action to pay to the petitioner in full certain royalties claimed by it. The contract under which such royalties were claimed conveyed to E. Remington & Sons, or their successors, the sole and exclusive right or license to manufacture, use, and vend to others certain fire-arms mentioned and described therein.

Action by the people of the state of New- York against E. Remington & Sons.

Action by Charles T. Bedfield, as administrator of the goods, chattels, and credits of Anna Maria Bedfield, deceased, against Lewis H. Bedfield, Jessie A. Bedfield, and Louis Marshall, Margaret T. Smith, and others.

Action by the Strobridge Lithographing Company against William H. Crane, to restrain him from working for the Metropolitan Job Printing Office, or any other person or corporation, in violation of his contract of employment with plaintiff. Robert F. Gillen and other persons, partners under the name of the “Metropolitan Job Printing Office,” moved to be made parties defendant to the action. The motion was denied, and from the order entered thereon they appeal. Code Civil Proc.

<p>Appeal from court of general sessions, New York county.</p> <p>This was an indictment against James Doyle for the larceny of trust funds. Defendant was convicted, and appeals.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Matthew McQuade against James Cooper. Plaintiff appeals from an order denying a motion by him for a reference.</p>

This was a voluntary submission, under Code Civil Proc. N. Y. § 1279, of the controversy as to whether plaintiff’s title to certain lots was a marketable one under his contract of sale with defendant.

Action by Thomas F. Oakes against Edward F. De Lancey. Defendant appeals from an order denying his motion to change the place of trial. Code Civil Proc.

<p>Appeal from special term, New York county.</p> <p>Applications by James C. Holden for leave to resign as trustee of the trusts created by the will of Albert Weber, deceased, and for leave to mortgage the trust-estate. William Foster, the- trustee appointed in place of said Holden, and other parties interested in the trust-estate, appeal from an order modifying a referee’s report as to allowances to be paid out of the estate, and others appeal from so much of the order as confirms the report as modified.</p>

<p>1. Indemnifying Bonds—Negligence of Sheriff.</p> <p>In an action on a bond given to indemnify a sheriff on the levy of an execution, instructions that, to deprive the sheriff of his indemnity for misconduct of an auctioneer employed by him, something more than mere negligence on the part of the auctioneer must be shown, and that fraud must be shown, are error.</p> <p>2. Trial—Instructions—Weight of Evidence.</p> <p>An instruction, on the trial of a civil case, that the jury must be “thoroughly satisfied” of a fact in dispute, is erroneous.</p>

Application by Thomas C. Martin for mandamus to require the William J. Johnston Company, Limited, to permit the examination of its books.

Action by Frederick A. Conkling and others against the Manhattan Railway Company and the New York Elevated Railroad Company for past damages sustained by the construction and operation of defendants’ elevated railway, and for an injunction nisi to restrain such further operation. There was a judgment for plaintiffs, and defendants appeal.

Action by John M. Knox and others as executors against the Metropolitan Elevated Railway Company and the Manhattan Railway Company, for past damages sustained by the construction and erection of defendants’ elevated railway, and for an injunction nisi against such operation. Judgment for plaintiffs, and defendants appeal.

Action by Nancy L. Sherwood and Mary E. Blodgett against the Metropolitan Elevated Bail way Company and the Manhattan Bailway Company, for past damages sustained by the construction and operation of defendants’ elevated railway, and for an injunction nisi against such operation. There was judgment for plaintiffs, and defendants appeal.

Action for divorce by Lillian Stahl against Richard Stahl, in which judgment was entered for plaintiff. The court refused to vacate a subsequent order increasing the alimony allowed or to set aside a commitment of defendant for failure to pay it, and he appeals.

Petition by the New York Elevated Railroad Company for the appointment • of commissioners to ascertain and appraise the compensation to be made for property, easements, etc., taken by it for the purposes of its railroad. The petitioner appeals from the award by the commissioners of compensation to Mary McKay Greenwood and others, owners of property known as “No. 286 -Greenwich Street,” in the city of New York, and from the order confirming their report.

Petition by the New York Elevated Railroad Company for the appointment of commissioners to ascertain and appraise the compensation to be made for property, easements, etc., taken by it for the purposes of its railroad. The petitioner appeals from the award by the commissioners of compensation to Margaret Westervelt, owner of property known as “No. 708 Greenwich Street,” in the city of New York, and from the order confirming their report.

Appeals from special term. Petition by the Metropolitan Elevated Railway Company for the appointment of commissioners to ascertain and appraise the compensation to be made for certain privileges, easements, etc., taken by it for the purposes of its railway, appurtenant to premises owned by John H. Watson, and to other premises owned by Mary E. Hughes. Said owners appeal from the award by the commissioners therefor, and from the order confirming their report.

<p>Appeal from judgment on report of referee.</p> <p>Action by Timothy I. Brown, as executor, against the Mechanics’ & Traders’ national Bank of the city of New York. Plaintiff appeals from a judgment for defendant entered on trial by a referee.</p>

Action by the Saint Nicholas Bank of New York against the State National Bank. There was judgment for plaintiff on a verdict directed by the court, and defendant appeals.

Action by Adolph Goldschmidt, David Barach, and Daniel Goldschmidt against the Mutual Life Insurance Company of New York. Plaintiffs appeal from a judgment for defendant entered on a verdict directed by the court.

Action by John P. Mahoney against Mary A. Prendergast, executrix and devisee of Anastasia B. Mahoney, deceased, to establish the title of plaintiff to certain real estate devised to defendant Prendergast by said Anastasia B. Mahoney. Plaintiff appeals from a. judgment for defendants entered on trial by the court without a jury.

Exceptions from circuit court, New York county. Action by Michael Fuchs against the William H. Sweeney Manufacturing Company. At the trial, the complaint was dismissed at the close of the evidence on both sides, and plaintiff’s exceptions were ordered to be heard in the first instance at the general term.

Action by Giles Everson against Fred C. Eddy, as receiver of the Syracuse Screw Company, and others. From a judgment entered by an order made at special term on the report of a referee, appointed “to hear, try, and determine” the issues, “and determine all the questions in the action,” the receiver appeals. ■

Action by Conrad Sipfle, Jr., and another against Alfred H. Isham on a promissory note given for $1,200. Upon the hearing, the testimony of Byron E. Loomis was given in respect to a conversation betwen “Isham and Stimpson in reference to Bundock’s patent refrigerator and butter cooler, in San Francisco. ” Among other things, the witness testified: “ I said to Mr. Isham: ‘ I suppose you have a real good thing.’ He said: • There ain’t money enough to buy it.

Action by Schickle,' Harrison & Co. against Henry C. Comegys, Jared E. Lewis, and Eowland N. Hazard, on several promissory notes. The action was tried before George C. Lay as referee, who filed the following opinion: “The note sued on in this action was given in full payment of an account for iron pipe, which was received and used by the defendants in the construction of water-works at Chillicothe, Missouri.

The relator, Edwin M. Worth, appeals from an order denying his application for a peremptory mandamus to compel the respondent, Hugh L. Grant, mayor of the city of Hew York, to issue to him, on receiving the sum of $500, a license to give vocal and instrumental concerts, and to give museum exhibitions without stage scenery or apparatus, on the premises located at 492, 496, and 498 Sixth avenue, in the city of Hew York, and known as “Worth’s Museum.”

Action by Jennie J. Holcomb against the town of Champion. Plaintiff received injuries on the 27th day of June, 1887, while driving a horse and •wagon with her two daughters, one 14 and the other 9, from her home towards .her brother’s residence. She came to a gulf or ravine about a half a mile from the village of Champion. Deer Lick creek runs through the gulf.

Exceptions from trial term, New York county. Action by Ralph H. White and Henry A. Belcher against Samuel Eiseman, Moses L. Eiseman, and others. At the trial the court directed a verdict for plaintiffs, and ordered defendants’ exceptions to be heard in the first instance at the general term. .

New York county. Motion by August Schwab for a mandamus directing Hugh J. Grant, mayor of the city of New York, to approve the bond of the relator, and issue a license to him as an auctioneer. The relator appeals from an order denying his application.

Action by Walter H. Hooker and Louisa A. Ensign against Henry D. Sand-ford and Howard C. Pearsall. Defendants appeal from an order denying a motion by them to change the place of trial.

Application by George F. Comstock for a writ of peremptory mandamus to the mayor and common council of the city of Syracuse. The writ was granted, and defendant appeals.

Action by the Strobridge Lithographing Company against William H. Crane. Defendant appeals from ah order continuing an injunction pendente lite, restraining him from working for the Metropolitan Job Printing Office, or for any other corporation or person, as a lithographic designer or lithographic sketch artist. For opinion on motion to add parties defendant, see ante, 835.

Action by the Texas Standard'Cotton Oil Company against the Mutual Fire Insurance Company. Defendant appeals from an order requiring the answer to be made more definite and certain.

Action by A. Melvin Bump against Michael Dehany. The justice issued a summons, which was personally served on the defendant on that day by a constable by delivering to the defendant a copy.

Action by Royal E. Deane and George G. Brooks against John A. Loucks. Defendant appeals from an order denying a motion by him to open a judgment entered on his default to appear or answer.

<p>Gifts—Evidence.</p> <p>In an action by an administratrix to recover money paid to defendant after the death of plaintiff’s intestate, who was the father of the parties, on checks drawn in defendant’s favor by decedent, defendant testified that she received the checks from her sister L., without stating whether it was before or after decedent’s death; that she did not know that he was going to give her the checks until she had so received them; and that she had never had any conversation with decedent about the checks. Defendant also stated that decedent was indebted to her. Plaintiff testified that defendant told her that decedent gave her the checks. Held,"that the evidence was sufficient to submit to the jury on the question whether the checks were delivered to defendant for value or as a gift.</p>

<p>Partition—Parties—Interest in Land.</p> <p>Under Code Civil Proe FT. Y. § 1510, providing that, in an action for partition, “plaintiff may, at his election, make a creditor having a lien on an undivided share or interest in the property a defendant in the action, ” a complaint is not demurrable for defect of parties where it alleges that one of the parties claims under a deed, “subject, however, as expressed in said deed, to a claim of one J., to be adjusted and paid out of said interest conveyed, ” but fails to make J. a party, as such allegation does not show that J. has an interest or estate in the land.</p>

<p>On a demurrer to the complaint.</p> <p>Action by Laura Wooden against the Western New York & Pennsylvania Railway Company.</p>

Action by Patrick J. Kelley against Robert B. J. Miles and William B. Barton. Defendants appeal from a judgment for plaintiff entered on the verdict of a jury, and from an order denying a motion for a new trial.

Action by Charles B. De Klyn, as assignee of the executors of Frank E. Bean, against the Silver Lake Ice Company, to recover damages for breach of a contract by defendant to deliver ice to said Bean. It appeared that such contract was made on or about September 30, 1887; that, by its terms, Bean was to allow defendant the use of certain dock privileges, etc., for delivering the ice until April 1, 1888, and that all the ice agreed for was to be taken before May 1, 1888.

Action by Mary McKay Greenwood and Isaac J. Greenwood, as executors of Isaac J. Greenwood, deceased, against the Metropolitan Elevated Railway Company and the Manhattan Bailway Company. Defendants appeal from a judgment for plaintiffs entered on the verdict of a jury and from an order denying a motion for a new trial.

<p>Fraudulent Conveyances—Action to Set Aside.</p> <p>The complaint in an action by creditors to set aside, as fraudulent as to them, an assignment by their debtor, alleged that ‘.‘the said assignment was made in bad faith, and with intent to hinder, delay, and defraud creditors. ” Held, that this was an averment of the specific fact of an intent to defraud, sufficient" to support the action.</p>

Action by John Forde against James E. Nichols and others for damages from injuries to the person of plaintiff, alleged to have resulted from the maintenance by defendants of a structure in the public street, constituting an encroachment on the highway. Defendants appeal from a judgment for plaintiff entered on the verdict of a jury, and from an order denying a motion for a new trial.

Action by Ellen Sullivan against the Metropolitan Life Insurance Company, on a policy of life insurance. The defense was breach of warranty of the truth of representations by the insured. Defendant appeals from a judgment for plaintiff.

<p>Appeal from city court.</p> <p>Action by Bichard Flatow against Theodore Van Bremsen. Plaintiff appeals from a judgment for defendant entered on overruling a demurrer to the complaint.</p>

Action by Gilbert B. Hawes against the Gas Consumers’ Benefit Company of the United States, to recover 25 shares of stock in defendant corporation, or, instead, the value of that stock. Plaintiff sues as assignee of a judgment obtained by Eugene S. Kass against William B. Hollister, Alletta D. Macmurdo, and this defendant. In the action wherein the judgment sued on was recovered, William B. Hollister, Alletta JD.

Action by the American Encaustic Tiling Company, Limited, against Lorenz Reich, for work, labor, and material furnished in the construction of defendant’s hotel. The defense was that the architect by whom plaintiff was employed had no authority to contract for the work and material, but was himself to do the work and furnish the material at his own expense, and that defendant had settled with him.

<p>Rescission of Contract of Release.</p> <p>Plaintiff, claiming under assignment from H., and alleging that defendant, by false or mistaken representations, had induced H. to execute a release, asked that the release be set aside, and for damages. There was no evidence as to what occurred between H. and the officers of defendant, a corporation, at the time the release was made; but plaintiff’s evidence was that others, under contracts similar to that of H., were induced by defendant’s misrepresentations or mistake to execute similar releases. Ñeld, that there was an entire failure of proof, and the complaint was properly dismissed.</p>

Action by John Mulford against the Metropolitan Elevated Railway Company and the Manhattan Railway Company. Defendants appeal from a judgment for plaintiff entered on trial before a referee.

<p>Review on Appeal—Discretionary Orders.</p> <p>Orders made pursuant to Code Civil Proc. N. Y. §§ 870-873, in reference to the examination of parties and witnesses before trial, being discretionary, such an order of the city court of New York is not reviewable on appeal to the court of common pleas, where it does not appear to have been made on any ground of law not involving discretion.</p>

<p>Appeal from trial term.</p> <p>Action by James Medler against the Atlantic Avenue Railroad Company for personal injuries. Judgment was entered on a verdict for plaintiff, and defendant appeals. The court refused to charge as requested at folio 268, that if the movement of the car would have been ineffectual to disturb the equilibrium of an ordinary passenger standing on the step, then there was no negligence on defendant’s part, but did instruct at folio 269 that if the movement was so slight that no person could foresee that it would cause the plaintiff to fall, there could be no recovery.</p>

Action by John Fitzgerald, as administrator, against the New York Central & Hudson River Railroad Company. From a judgment entered on a verdict for plaintiff for $3,000, and from an order denying motion fora new trial on the minutes, defendant appeals. .

<p>Malicious Prosecution—Probable Cause—Hearsay Evidence.</p> <p>In an action for malicious prosecution defendant may testify as to communications made to him by third persons as tending to show that he had reasonable grounds for believing that plaintiff was guilty of the offense with which defendant charged her.</p>

<p>Appeal from judgment on report of referee.</p> <p>The referee found, viz.: “That the plaintiffs,- between July 9, 1888, and January 21, 1889, inclusive, sold and delivered to the defendants at the Hew York State Reformatory at Elmira, brushes and brush materials at and for the price, and for the value, of $11,627.97. All of said materials were so sold and delivered after August 2, 1888, and all of said brushes after that date, except $1,263.39, in value of the same.” He also found a payment had been made of $2,085.13. He also found the defendant indebted in $7.88, for moneys expended to the use of the defendant. As conclusions of law the referee found “that the counter-claim set up in the defendant’s answer is not available to the defendant, or allowable against the state in this action or court.” In the defendant’s answer it was stated that sundry orders had been delivered to the officers of the Hew York State Reformatory at Elmira, and that the same had been accepted by the superintendent; that the orders had not been filled, and that “the plaintiff herein had, for a good and valuable consideration, agreed to make, manufacture, and produce for the defendant, and deliver to him a large quantity of brushes, many thousand gross in number, and of various kinds and descriptions, which particular kinds and descriptions this defendant is now unable to designate; that of said orders, contracts, and agreements some, on the said 2d day of August, 1888, had been partially carried out, and kept by the said plaintiffs, and a partial number of the brushes so to be manufactured by the plaintiffs, and delivered to the defend.ant, only have been so manufactured and delivered, while others of said orders or agreements the said plaintiff had not even partially complied with, or carried out, on the said 2d day of August, 1888, and they had not manufactured or delivered to the defendants any of the brushes or goods which, under such orders or agreements, they had contracted to manufacture and deliver. * * * And defendant further alleges that, by reason aforesaid set forth in this second answer, and defense, all of which matters are herein set forth upon information and .belief, he, the said defendant, has been damaged in at least the sum of $10,000; and such sum this defendant asks this court to set off against any sum the plaintiffs may, upon the trial of this action, show themselves entitled to by reason of the matters set forth, in the said complaint; and defendant asks that such damages as said defendant may show himself entitled to by reason of the matters set forth in this second answer and defense upon the trial of this action may be used to cancel or offset to the extent thereof the damages which the plaintiffs may, upon the trial hereof, show themselves entitled to by reason of the matters set forth in their said complaint, and that plaintiffs’ said complaint be dismissed, with costs, and for such other or further relief as to the court may seem just and proper.” Defendant gave some evidence.tending to.establish the allegations of his answer. The case states: “Plaintiffs’ counsel seasonably objected to all testimony offered by defendant tending to prove the counter-claim or cause of action alleged in the answer, on the ground that such claim was not available to the defendant, or allowable against the state in this action, and, at the close of all the evidence, duly requested the referee to so find and hold.” The appellant requested the referee to find: “The defendant is entitled to recoup or counter-claim against the claim of the state, and the amount due from the defendant to the state in this action, the said sum of damages, or so much thereof as may be necessary.” The referee refused so to find. An exception was taken to such refusal, and defendant appeals.</p>

<p>1. Appear—Review—Weight op Evidence.</p> <p>Where there is a conflict of evidence a verdict for plaintiff will not be disturbed on appeal, though the numerical preponderance of testimony was in favor of defendant.</p> <p>2. Witness—Cross-Examination to Impeach.</p> <p>In an action by a railroad conductor for wages due, defendant interposed as a defense that plaintiff had failed to account for fares collected, and introduced detectives as witnesses, one of whom stated on cross-examination that he did not buy a ticket because he got on for the purpose of paying a fare. Held, that it was proper to ask such witness on further cross-examination whether he did so for the purpose of reporting that he “had accomplished something. ”</p>

Action by Gates Thalheimer against Feliz 0. Klapetzy and others. Plaintiff is a judgment creditor with an execution returned unsatisfied of Feliz C. Klapetzy and Bernard Klapetzy, who were copartners in business in Syracuse from September 26, 1885, down to the 19th of August, 1889, when they made a general assignment to the defendant Chryst.

Application by Legrange E. Scrofford for a writ of habeas corpus. Held: viz.: “That the sheriff had the affirmative, and that they rested if they did not make application to introduce further testimony.” Thereupon the defendant’s counsel moved that the prisoner be discharged. “ After argument, motion for discharge of prisoner denied, to which defendant’s counsel excepted. ” “Proceedings adjourned to…

<p>Appeal from judgment on report of referee.</p> <p>Action by the Empire Steam-Pump Company against Horace Inman. Judgment was entered against defendant, and he appeals.</p>

Action by Jennie R. Sherman against the village of Oneonta. From a judgment entered on a verdict rendered in favor of plaintiff for $4,000, and from an order denying a motion on a case and exceptions for a new trial, defendant appeals.

Action by the Bank of Syracuse against the Wisconsin Marine & Fire Insurance Company Bank. From a judgment entered in favor of plaintiff for $363.31, with interest from June 15, 1887, defendant appeals. '

Action by Joseph Palladino against the mayor, etc., of the city of New York. Defendant appeals from a judgment entered on a verdict for plaintiff. For decision on previous appeal, see 10 N. Y. Supp. 66.

<p>Appeal from jury term.</p>

<p>Appeal from fourth district court; Steckler, Judge.</p>