Volume 120 — New York Appellate Division Reports

Appeal by the defendant, Brodie L. Duke, from a judgment of the Supreme .Court in favor of the plaintiffs, entered in the office- of the clerk of .the county of New York on the 26th day of October, 1906, upon the verdict of a jury, and also from an order enterted in said clerk’s office on the 31st day of October, 1906, denying the defendant’s motion for a new trial made upon the minutes.

Appeal -by the defendants, Elizabeth M. Bryne and others', as executors, etc., from ah order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of May, 1907, granting plaintiff’s motion that a commission issue to C. O. Templeton, Esq.-, of Tyrone, Penn., to take the depositions of four witnesses whose .names are specified, upon oral questions. • .....

Appeal by Frederick Goetz, individtially and as-- administrator witli the will annexed of Peter Goetz, deceased, from a decree of the Surrogate’s Court' of the county of Mew York, entered in said Surrogate’s Court, on the 20th day of February, 1907, dismissing his petition to require Willis B. Dowd, as temporary administrator with the will annexed of said deceased, to render and settle his • accounts as such administrator.. ' . ■

■ Appeal by the plaintiff, James. Slater, from, an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 4th day of February, 1907, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the. defendants’ demurrer to the amended complaint. ‘ .

Appeal by the defendant, Joseph Somme, from a judgment of the Court of Special Sessions of the First Division of the city of New York, rendered on tile 21st day of June, 1906, convicting the defendant of a violation of section 153 of the Public Health Law.

<p>Appeal by the defendant, Michael'J. Garvin, from a judgment •of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the -8th day of June, 1906, upon the verdict of a jury, and also from an order entered in said, clerk’s office on the 6th day of June, 1906, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>■Appeal by the defendant, Wellington Downing, froth adjudgment of the Supreme Court.in favor of the plaintiff, entered in the office of the clerk of the bounty of hfew York on the 16tli day of' June, 1906, upon the report of a. referee, and also' from- an order entered in said clerk’s'office on the 15th day of June, 1906, granting the plaintiff an extra- allowance of costs, in an. action to recover damages for breach of.a contract of employment as sales agent.</p>

<p>'. Crime—■ grand larceny first degree—money obtained by false pretenses . — conviction affirmed—-indictment.</p> <p>The defendant was convicted of grand larceny in the first degree for obtaining money from a woman' by false pretenses. ' Evidence considered.and ' ,</p> <p>SeM,'. that'the judgment 'should he affirmed/</p> <p>The indictment in such action need not allege that the complainant relied Upon the representations alleged to have been, made by the. defendant. - Conviction may be based upon prooí of an intention to cheat and defraud, and that the complainant in fact parted with her money in reliance upon the false representations alleged in the indictment.</p> <p>When after setting up the false representations, of the defendant it is alleged that by color and aid thereof the defendant ■ then and there feloniously and fraudulently obtained the possession of the complainant’s mon'eyiwith intention to deprive and defraud her of’ the same and to appropriate the same to his own use, it is equivalent to an allegation that the complainant in parting with her property relied upon the false representations of the defendant.</p> <p>In such action the People may allege and prove representations by the: defendant as to facts not then existing in addition to representations as to existing facts, if the former are part of the res gestee.’</p>

Appeal by the plaintiffs, Theodor Aub and' another* from an order of the Supreme Court, made at the New York Special Term and entered in- the office of the clerk of the county of New York ion the 3d day of May, 1907, directing that the plaintiffs furnish a hill of particulars in an action to recover for attorneys’ services,

<p>Vendor and purchaser — -will construed — when title obtained on partition sale is marketable — judgment in partition conclusive in collateral action.</p> <p>Action to recover earnest money. paid upon, a contract to buy land upon the ground that the title was unmarketable. '</p> <p>A former owner by will authorized her executors to take possession of her lands and collect the rents and profits and to sell any or all of the lands as they should deem for the best interests of the estate. In a subsequent clause the testatrix directed her executors after sale of her lands to divide the proceeds and pay over to her children, and devised to each of said children an equal part, with a further proviso that the shares of minors, if any, should be held by the executors until they reached majority, the income to be used for their maintenance and support. Thereafter one of the adult devisees conveyed and the grantee brought partition making the executors and all devisees parties defendant, at which time all' but one of the devisees had attained majority,Judgment of partition was entered and the property sold thereunder, plaintiff in- this action taking title by subsequent conveyances.</p> <p>Held, that as the executors had not raised the question of the illegality of the partition, they must be deemed to have acquiesced in a sale of the premises by judicial proceeding-instead of under the power of. sale given by the will, and in the absence of bad faith or collusion title obtained on the partition was marketable.</p> <p>Held, further, that the construction of the will which-was before the court was necessarily involved in the partition action, even though not actually litigated, and the judgment therein could not be attacked collaterally, but only by direct application in the former action with tender of restitution; . .</p> <p>That as judgment in partition had been acquiesced in by all parties in interest and was binding upon them until vacated, the probability of its being set-aside was too remote to render the title unmarketable.'</p>

Appeal by the defendant, The Degnón Contracting Company (a corporation), from an order of the Appellate Term of the Supreme •' Court, entered in the office of the clerk of the county of Mew York on the 12th day of December, 1906, affirming a judgment of the City Court of the city of Mew York in favor of-the plaintiff, entered in the office of the clerk of said court on the 18th day of January,. 1906, .upon -the verdict' of a jury for $900, and also affirming an order entered…

. Appeal by the. defendants, Harry W. Watrous and -another, as executors, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the.office of the clerk of the county of New York on the 17th day of March, 1906, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 2d day of March, 1906, denying the defendants’ motion for a new trial made upon the minutes.

<p>Appeal by the plaintiffs, Clara A. Bowron and others, individually and as executors and trustees, etc., from certain parts of a judgment of’ the Supreme Court in favor of the. defendants, entered ih the office of the clerk of the county of New York "on the 9th day of March, 1907, upon the decision of the court rendered after a trial at the blew York Special Term.</p>

Appeal by the defendant, Gavino Gatto, from a: judgment of the Opurt of General Sessions of the Peace in and for the county of Sew York, rendered on the 21st day of January, 1907, convicting him of the crime of assault in the second, degree.

<p>Appeal by the. plaintiff, Charles M. Preston, -as receiver, etc,, from a judgment-of the Supreme Court in favor of the defendants Albee, entered in the office of thbyclerlc of the county of New York on the 18th -day of December, Í906, upon the report of a referee.</p>

Appeal by the plaintiff, Charles M. Preston, as receiver, etc., from a judgment of the Supreme Court in favor of the defendants Albee, entered in the office of the clerk -of the county of New York on the 16th day of December, 1906, upon the report of a referee.

Appeal by the plaintiff, Charles ¡M¡. Preston, as receiver,. etc., from a judgment of the Supreme Court in favor of the defendants Albee, entered in the office of the clerk of the county of New York ón the 18th day.óf December, 1906, upon the report- of a referee.

Appeal by the defendant, John F. Ahearn, as' president, etc., from an order of the Supreme Court, made at the New York Special Term and' entered in the office of the clerk of the county of New York on the 21st day of February, 1907, denying the defendant’s motion to strike otit a certain paragraph from an alternative writ of mandamus.

Appeal by the defendant, the New York Life Insurance Company, from a judgment ’of the Supreme Court in favor of the plaintiff, entered in the' office of the clerk of the county of New York on the 30th day of November, 1906, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 28th day of December, 1906, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Leon Pizer, from a judgment of the .

- Appeal by the plaintiff, Abraham H. Sarasohn, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on tlie 13th day of February, -1907, upon the decision of the court, rendered after atrial at the New-York Special Term,, dismissing thecomplaint upon the merits, and also from an order entered, in said clerk’s office on the 13th day of February, 1907, granting to the respondents an extra allowance.

Appeal by the defendant, The Woodlawn Cemetery, from a judgment of .the Supreme Court m favor of the plaintiff for $47,890.74, entered in the office of the clerk of the. county of Eew Tork on the 7th day of June, 1906, upon the report of á referee, to whom it was referred to hear, try and determine the issues. •

Appeal by the defendant, the Bew York City Bailway Company, from- an order of the Appellate Term, entered in the office of the clerk of the county of New York on the 11th day of February, 1907, affirming a judgment of the Municipal Court of the city of New York, borough of Manhattan, in favor of the plaintiff, rendered on the 30th day of April, 1906.

Appeal by the plaintiff, George P. Waitzf elder, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New. York on the 18th day of April, 190T, .denying the plaintiff’s motion to vacate a prior order which directed the plaintiff to appear before a referee for examination in order to -enable the respondents, to frame their answer to the amended complaint: .

Appeal by the relator, The Henry Elias Brewing Company, from an order of the Supreme Court, made at the New York Special Term and entered in the .office of the clerk of the county, of New Fork on the 13th day of March, 1907, denying the relator’s motion for a peremptory writ of mandamus to compel the respondent to receive and record a mortgage upon certain leases of premises in New York county without the payment of a tax under the Mortgage Tax Law of 1906.

Appeal by the defendant, the Yellow Pine Company, from an order of. the. Supreme-Court, made' at the Mew York Special Term -vand entered'in the Office of the clérk of the county of Mew York' on the 17th day of May, 1906, confirming the. report of a referee' and directing the payment of surplus moneys to the defendant George Moore Smith.

■ Appeal by .John B. Byér, as executor, etc., from a. decree of the Surrogate’s Court of the county of New York, entered in-sáici.'Surrogate's Court - on the 26th day of February, 1907, adjudging him to he guilty of contempt of -court. ■

Appeal by the defendant, Eugenie H. Brown, as executrix, etc., from a- judgment of' the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 18th day-of Hovember, 1905, Upon the verdict of a jury,' and also from-an order bearing date the 13th day -of Hovember, 1905, arid entered in said -clerk’s office, denying the. defendant’s motion for a new trial made upon the minutes. •

Appeal by the defendant, the New York City Railway Company, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 25th day of February, 1907, setting aside the verdict of a jury in favor of the defendant and granting a new trial of the action.

Appeal by tíre defendant, .tbe Interborongh Rapid Transit. Company, from a judgment - of tbe Supreme Court in favor of tbe plaintiff, entered- in tbe office of tbe clerk of the county of New York on tbe 27th day of October, 1906, upon the verdict of a jury for $5,000, and also: from an order entered in said clerk’s office on the 24th day of October^ 1906, denying tbe defendant’s motion for a new trial made upon the minutes.

- Appeal by the plaintiffs, 'Richard F. Outcault and another, from an interlocutory judgment of the Supreme Court in favor 'of the defendant trustee, entered in the office of the clerk of the county of New York on the 25th day of March, 1907, upon the decision of the court, rendered after a trial at the ISTew York Special Term, overruling the plaintiffs’ demurrer to a defense and counterclaim in the amended answer of said defendant trustee.

Appeal by the defendant, Clarence F. Trne, from a judgment of the Supreme Court in favor of the plaintiff,-entered in the office of the clerk of the county of New York oil the 2-lst day of January, 1905, upon the-decisión of .the court, rendered after a trial at the New York Special Term, directing a mandatory injunction, for the removal.of a nuisance.

Appeal by the defendant, Isaac A. Hopper & Son (Incorporated), from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the .clerk of the county of New York on the 2d day of February, 1-907, upon the verdict. of a jury for $1,500, and also from an order entered in said clerk’s office on the 5tli .day ■of February, 1907, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Andrew J. Kerwin, Jr.,, from a judgment of the Supreme Court in favor- of certain of tile defendants, entered in tlie,office of the cleric of the county of New York on the 18th day of April, 1907, upon the decision of .the court, rendered after a trial at the New York Special Term, dismissing the amended complaint. ,

Appeal by. the plaintiff, Rollin M. Morgan, as executor, • etc., from a judgment of the Supreme Court in favor of the defendant, entered in-the office of the clerk of the county of Mew York on the 15th day- of January, 1906, upon the verdict of a jury, and also from an order, entered in said clerk’s office on the 12th day of December, 1905, denying the plaintiff’s motion for a new trial made upon the minutes. .

<p>Beal property—contract to buy lands subject to mortgage then due — effect of bringing of action of foreclosure.</p> <p>Under an agreement to convey lands subject to a mortgage then due, the vendee may refuse title if prior to the contract the mortgagor has brought an action of foreclosure and filed a Us pendens. He may recover the earnest money and expenses of examining the title.</p> <p>The defense that the vendor offered to pay the costs of foreclosure is not available unless set up in the answer.</p>

Appeal by the defendant, the United Engineering and Contracting Company, .from' a judgment of the Supreme Court in favor of' the plaintiff, entered in the office of the clei’k of the county of New York on .the 17th day of January, 1907; upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 3lst day of January, 1907, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by Henry O. Smith, as executor, etc., of Pliosbe De Saxe,, deceased, from an order of tire Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 22d day of April, 1907, granting the respondent’s motion to vacate a prior order for the settlement of the executor’s account.

Appeal by the petitioner, the City of New York, from an order of the Supreme. Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 3d day of .April, 1905, modifying and confirming the partial and final report o'f the commissioners of estimate and assessment in a street opening proceeding. .

Appeal by the- defendant, the Hickok -Printing Company, from an order, of the Supreme Court, made at the New York Special Term and entered in the office.of the clerk of the county of New York on the 14th day of May, 1907, granting a stay of proceedings herein.

Appeal by the plaintiff, J. Quintus Cohen, as trustee, etc., from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk pf the.county of New York on the 16th day ■ of Hay, 1907,- affirming a judgment of the Municipal Court of the city of New York, borough of Manhattan, in favor of the defendant, rendered on the 9th day of February, 1907.

Appeal by the defendants, Henry G. Timmermann and others,' from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 10th day of April, 1906, upon tlie decision of the court rendered after a trial at the New York Trial Term, a jury having been waived.

Appeal, by the defendants, Annie Cuff, an infant, by Wyllys Benedict, her guardian ad litem, and others, from an interlocutory judgment of the Supreme Court in favor of the .plaintiff,, entered in the office of the'clerk of the county of Yew York on the 2d day of January, 1907, upon the decision of the court rendered after a trial at the Yew York Special Term.

<p>Discovery- — action to avoid corporate contracts creating a monopoly — . ■ examination not limited to existing administration — examination •restricted. .</p> <p>In an action brought under chapter 690 of the Laws of 1899 to avoid"'contracts alleged to have been made by a defendant corporation with a view ;to estab- ■ lish. a monopoly, etc., an inspection of the defendant's books and papers should not be limited to records covering the present administration of the defendant for the acts of a corporation are not the'acts of any particular set of officers, and, although prior contracts may not be now in force, they may be relevant upon the intent and purpose of contracts thereafter made.</p> <p>But an examination of papers to -show the profits made by the defendant,, or the . unreasonableness of its prices, should not be granted, because in such action it is immaterial'whether the defendant:profited by the contract or not, the,rea] issue being whether the contracts were made tojereate a. monopoly.</p> <p>Nor in such action Should the plaintiff be allowed an inspection of the stock list, and stock ledgers of the defendant to show that the defendant acquired the stock of other corporations, for that fact will not be. shown by the list of the defendant’s stockholders. "</p> <p>If on the examination now authorized facts are disclosed which justify the , examination of other books andvpapers, a further examination may be. ordered.</p>

Appeal by the defendant, the Standard Distilling and Distributing Company, from a judgment of the Supreme Court in favor of the plain tiff,^ entered in the office of the clerk of the county of New York on the 29th day of June, 1906, Upon the decision of the court rendered after a trial at the New York Trial Term, a jury having been waived.

Appeal .by the plaintiff, Eugene Peerrot, from an interlocutory-judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of tile county Of New York on. the 8th day of January, 1907, upon the-decision of the court, rendered after a trial at the New York Special Term, overriding the. plaintiff’s demurrer to the separate defenses to the first and second causes-of action set forth in the complaint. '

■ Appeal by the defendant, John D. Crimmins, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on .the 4th day of December, . 1906, upon the verdict of a jury for $1,000, arid.also from an order entered in said clerk’s office on the éth'day of December,. 19Ó6, denying the defendant’s mbti.on for a new trial made upon the minutes'.

Appeal by the defendant, The National Park Bank of New York, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 28th day of January, 1907, affirming a judgment of'the City Court of the city of New York in favor of the plaintiff entered in the. office of the clerk of said court on the 24th day of September, 1906. '

' Appeal by the defendant, The Prudential Insurance Company ' of America, from a judgment of the. Supreme -Court in favor of ■the .plaintiff, entered in the-office of the clerk of the county of New York on the 1st day of December, 1906, upon the verdict of a jury, and -also from- an order entered in said clerk’s office on the 3d day of December, 1906, denying the defendant’s motion for a new . trial made upon, the: minutes.

. Appeal by the defendants Hamilton W. Gary, as • administrator, etc.,' and. another, from certain portions, and by the defendant Fannie E. B. Francis, from the whole of a judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of the county of New. York on the 1st day of March, 1907, upon the decision of. the court rendered after a trial at the New York Special Term.

Appeal by the defendants Albert C. Bostwiclc and another from certain parts, and by the defendant Fannie E. B. Francis from the whole of a judgment of the Supreme Court in favor of the ¡ilaintiff and certain of the defendants, entered in the office of the clerk of the. county of New York on the 1st day of March, 1907, upon-the decision of the court rendered after a trial at the New York Special Term:

Appeal by Charles Wanninger and others, as executors, etc., from certain parts of a decree of the Surrogate’s Gourt of New York county, entered in said Surrogate’s Court on the 23d day of March, 1907, settling their accounts. -

<p>Appbal by the defendant, Patrick Ryan, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, rendered on the 9th day of November, 1906, convicting him of the crime of an attempted grand larceny in the first degree as a second offense, and also from an order entered' on the 9th day of November, 1906, denying his motion for a new trial.</p>

Appeal by tbe plaintiff, John B. Smitli, from a judgment of the Supreme Court in favor of tbe defendant, entered in tbe office of the clerk of the county of New York on the 3d day of December, 1906, upon the decision of the court, rendered after a trial at the New York Special. Term, dismissing the complaint upon the merits.'

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

Appeal by the City of New York from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 12th day of March, 1906, directing the comptroller of the city of New York to pay certain awards of damage.

<p>Separate appeals by The City of New York and by William B. Opdyke and another, individually and as trustees, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of November, 1905, confirming the report of a referee and directing the payment of certain awards.</p>

Appeal by- the plaintiff, Adolph, S. Lowenthal, from an order of the' Supreme■ Court, made at the New York Special Term arid entered in the office of the clerk of the county of New York on the 29th day of April, 1907, denying liis motion for an order requiring certain shares of stock, upon which-a levy had; been attempted, to be brought within- the jurisdiction of the court.

Sepakate appeals by the defendant Bebecca. Greacen and by the defendant Bobert- A. Greacen from an order of the Supreme Court, made at the New York Special Terra and entered in the office of the clerk of the county of New York on the 3d day of May, 1907, directing that each of them serve a bill of particulars.

Appeal by the defendant, Charles Sweeny, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk óf the county of New York on the 28th day of March,.1907, denying his motion to strike out certain allegations of the complaint as irrelevant, redundant and scandalous.

Appeal by the' defendant, Charles S-weeny, from an order of the Supreme Court,, made at the Eé-w. Yqrk Special Term and entered in the, office of the clerk of the county of ,Eew York on the 28t'h day of .March, 1907, denying his motion to strike out. certain allegations of the complaint as. irrelevant, redundant and. scandalous. ■. • ■

Appeal by the defendant, Sydney W. Peoples, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of February, 1907, denying his motion to vacate a prior order granted ex parte which appointed a receiver of rents and profits pendente lite.

Appeal by the defendant, Joseph Ferone, from a judgment of the Court of General Sessions of the .Peace in'and for the county of New York, rendered on the 22d day of November, 1904, convicting him of the crime of murder in the second degree.

• Appeal by the defendant, Barnet Rqsenberg, from a. judgment of the Court of General 'Sessions of the Peace in and for the county of New York, rendered on the I9th day of November, 1906, convicting him-of the crime of burglary in the third degree. 1

Appeal by the defendant, Daniel J.. Madden, from a judgment of the Court of General .Sessions of the Peace in and for the county of New York, rendered on the 30th day of January, 1907, convicting him of the crime of grand larceny in the second degree.

Appeal by the defendant, Herman H: Freedman, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 4th day of May, 1906, upon.the verdict of a jury rendered by direction of the court, and also from an order entéred in said clerk’s office on the 15th day of May, 1906, denying the defendant’s motion for a new trial made upon the minutes.

Separate appeals by the defendants,. Frances Coster Kip and others, from certain portions of an interlocutory judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of the county of New York on the 24th day. of January, 1907, upon the decision of the court rendered after, a trial at'the New York Special Term.

Appeal by the plaintiff, Bichard Y. Harnett & Company, Incorporated, from a judgment of the Supreme Court in favor of the defendant, entered in. the office of the clerk of the county of New York on the 17th day of February, 1906, dismissing the complaint, and also from an order entered in said clerk’s office on the 15th day of February, 1906, setting aside a verdict in favor of the plaintiff. - -

Appeal by the plaintiff, Clara L. Gunn, from an order of the Supreme Court, made at the Bevy York Special Term and entered in the office of the clerk of the county of Bew York on the 18th day of February, 1907, denying her motion to punish the defendant for contempt of court.

■Appeal by the plaintiff, Julia Cole, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 3d day of May, 1907, resettling a prior order entered in said clerk’s office on the . 25th day of April, 1907, staying the plaintiff’s proceedings herein and canceling the Us pendens and summons.

Appeal by the defendant, Jacob Michaels, from a judgment of the Supreme Court in. favor of the plaintiff, entered in the office of the cleric of the county of New York on the 14th day of August, 1906, upon the decision of the court, rendered after a trial at the New York.Special Term, directing the specific performance of an oral contract, and also from an order entered in said clerk’s office on the 17th day of July, 1906, denying the defendant’s motion for a new trial made…

Appeal by. the defendant, Max Block, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, rendered on the 21st day of December, 1906, convicting him of the crime of incest, and also from an' order denying his motion for a new trial.

Appeal by the plaintiffs, Edward P. McDonald and others, from an order of the Supreme Court, made at the ISTew Yqrk Special Term and entered in the office of theclerk of the county of ISTew York on the 22d day of March, 1907, denying the plaintiffs’ motion for leave to amend, the complaint by adding the name of Henry S. Kearney as a party defendant.

<p>Appeal by the defendant, James S. Alderdice, from a judgment of the Court of General Sessions' of the Peace in and for the county of New York, rendered. on-the 23d day of June, 1905, convicting Mm of the crime of forgery in the first degree.</p>

Appeal by the -defendant, the - New York City Railway Com? pan y,; from á judgment of the'Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of January, 1907,. upon the verdict of a- jury for .$2,500, and also from, an'Order -entered in said clerk’s office on the 14th day of January, 19Ó7,. denying the defendant’s motion'for -a new'trial made upon the minutes'. • _

<p>Application to disbar Vincent' W. Woytisek, an attorney and counselor at law. • •</p>

<p>Attorney—disbarment for misappropriation of funds.</p> <p>In considering the misappropriation of a client’s money .by an attorney the amount converted is not important. The standard which the court requires ■ of its officers is not to he measured in dollars and cents.</p>

<p>Application to disbar Dethlof G. Hansen, an attorney and counselor at law. :</p>

<p>Attorney — disbarment for misappropriation of funds.</p> <p>Attorney disbarred for appropriating client’s mohey and contesting all efforts " to compel restitution.</p>

• Appeal by the defendant, the Union Trust Company of New York, as executor, etc., of John H. Drake, deceased, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of May, 1907, granting plaintiff’s motion to have the trial of the issues herein given a preference upon the ground that the sole defendant is an executor, and setting the case down for trial in Special Term, Part 3,…

plaintiff, entered in the office of the clerk of the county of New York on the 6th day of December, 1906, upon', the verdict of a jury; also from an order entered in said clerk’s office on the 6th day of December, 1906, denying the defendant’s motion for a new trial made upon the minutes, and also from an order entered in said clerk’s office.on the 6thday of December, 1906, granting the plaintiff’s motion for a correction of the yerdict by the addition of interest.

<p>■ Appeal by the defendant, the-Alfred ML- Best Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day off November, 1905, upon the decision of the court, rendered after a trial at the New York Special Term, overruling' the defendant’s demurrer to the complaint.</p>

<p>Motion for a reargument of an appeal by the defendant, George Burnham, the younger, from a ¡judgment of th¿ Supreme Court in favor of the plaintiff, rendered on the 17th day of December, 1906, convicting him of the crime of grand larceny in the'first degree, ' and for. a resettlement of an order of the Appellate Division; (See 119 App. Div. 302.) i</p>

Appeal by the defendant, the Degnon Contracting Company, from an order.of the Supreme Court, made. at. the New York Special Term and entered in the office of the clerk of the county of New York on the 26th day of April,- 1907, denying the defendant’s motion for,a bill of particulars.

Appeal by the plaintiff, The Trust Company of New York, from, an order of the Supreme .‘Court, made at the New York Special Term and- entered in the office of the clerk of the county of Rew York on the 16th day of Rovembef, 1906, denying the plaintiff’s motion for leave to serve a supplemental complaint. •'

Appeal by the petitioner, The City of New York, from an order of. the Supreme Court, made at the Kings County Special Term and entered in the office of. the clerk of the county of Kings on the 18th day of July, 1906, and in the office of the clerk of the county of New York on the 19th day of February, 1907, and in the office of the clerk of the county of Westchester on the 20th day of February, 1907, confirming the report of commissioners of estimate and assessment in favor…

Appeal by the defendants, Samuel Bosenfeld and-another, from a judgment of the Supreme Court in favor of -the plaintiff, entered in the-office of the clerk of the county of .New York on the 29th day of- August, 1906, upon the decision of the court rendered after- . a trial at the ¡New York Special'Term confirming the report of a referee appointed to take an account between the parties.'

Appeal by the- defendants, Grove D. Curtis and another, copartners, étc., from a judgment of the Supreme Court in favor of, the plaintiff, entered- in- the office of the cleric of the county of New York on the 14th day of January, '1907, upon the verdict of a jury for $1,400, and also-from an order'entered in'said clerk’s office on the 14th. day of January, 1907, denying the defendants’ motion for h new-trial made upon the minutes. ■ . .

Appeal by the defendant, Joseph Haskell, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the cleric of the county of New York on the 13th day of May, 1907, denying'the defendant’s motion to vacate the service of an order of arrest and the service of a summons and complaint.

Appeal by William T. Washburn, individually and as sole surviving executor and trustee, etc., of Benjamin Richardson, deceased, from an order of the Surrogate’s Court of the county .of New York, entered in said • Surrogate’s Court on the 10th day of May, 1907,- denying a motion to resettle an order entered in said court on the 9th day of July, 1906, denying the motion of Viola J. M. Karam for revocation of letters testamentary, as resettled by an order of March 11, 1907.

Appeal by William T. Washburn, individually and as sole surviving executor and trustee, etc., of Benjamin Richardson, deceased, from an order of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the lltli day of March, 1907, resettling an order entered on the 9th day of July, 1906',

Appeal by the defendant, the ¡New York Edison Company, from a judgment of the-Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of ¡New York,on the 8th. day of-Juné, 1906, upon the verdict of a jury for $5,000,'and also from an order entered in said clerk’s office on the 22d day of June, 1906, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The City of New Rochelle from' a judgment of the County Court of Westchester-ebniity in favor of the plaintiff, entered in the office-of the'clerk of said county on the 20th day of September, 1906, upon the verdict of a jury for $1,200,' and also from an order entered in said clerk’s office on the 5th day of October, 1906, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Show’s U. S. Sample Express Company.,. Limited, from a, judgment" of the Supreme-Court in ffivor of-the plaintiff, entered in the. office of the clerk of the county .of Kings on the 17th day of October, 1906, upon the verdict of á jury, and also from an order entered in .said clerk’s-office on the . 30th day of October, 1906, denying the defendant’s motion for a hew'trial " made upon the minutes. '.</p>

. Appeal by the plaintiff, Albert Tour.tejotte,from an order of the Supreme Court, made at the Westchester Trial Term and entered . in the office of the clerk of the county of Westchester oil the /fth day of February,-1906, denying the plaintiff’s motion to set aside , the verdict'of a jury in. his favor for $200>,'and for- a new trial made upon the ground that the. verdict was inadequate.

Appeal by the plaintiff, Christopher F. Seary,. from an inter-. locutory judgment of the County Court of Kings county in.favor of the defendant J. L. 'Wegenaar,, entered in the office of the clerk of said county on the.4th day of December, 1906, upon the decision of the court sustaining said defendant’s demurrer to the complaint, '• '

■ Separate appeals by the defendants,-The Metropolitan Securities Company and Robert S. Bussing, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office' of the clerk pf the county of Kings on the lOtli day'-of January,. 1907, upon the decision of the court, rendered after a- trial at the Kings County Special Term, overruling separate demurrers to the Complaint. •. . .

Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil-Procedure.'■ . . The parties entered into a contract in writing for the sale of the premises bio. 124 Broadway, Brooklyn. • The plaintiff paid defendants $300 as part paymént of the purchase money. The plaintiff rejected the title offered by. defendants as not marketable, and submits this case asking for judgment against defendants for $300. . .

Appeal by the defendant, the Postal Telegraph-Cable Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in tl;e office of the clerk of the county of Kings on the 24th day of April, 1906, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 20th day of April, 1906, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Car Trust Investment Company, from a judgment of the Supreme Court in- favor of the- plaintiff, entered in the office of the cleric of the county of Orange on the 3d day of August, 1906, upon the decision of the- court rendered ■after'a trial at the Queens County Trial Term without a jury.-

Appeal by the defendant, the Iron Clad Manufacturing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in.the office of the clerk of the county of Kings, on the 21st day of March, 1906, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 21st day of March, 1906, denying the defendant’s motion for a new trial made upon the minutes. • '.

Appeal by the defendants, Edward Johnson and another, frbm an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings ■ on the 21st day of February, 1907, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling their demurrer to the complaint.

<p>Landlord and tenant— covenant to let premises when vacant ---pleading — failure, to allege condition precedent.</p> <p>A lessee occupying part of a building under a lease which provides that in case a smaller store on the same premises now occupied by another tenant “ shall at any time become vacant ” the lessor will rent the same to the lessee, in order to ' .maintain an action for the- specific performance of said covenant must allege that the store has been “vacated” by the other tenant. A complaint which merely alleges that the cotenant’s term has expired but that he is still in occupancy fails to state a cause of action.</p> <p>Premises to be vacated must be unfilled and unoccupied, without a claimant,. tenant or occupier, and the mere termination of a lease does not necessarily create a vacancy.</p>

Appeal by the plaintiffs, Arthur B. Fleet and another, from, a ' judgment of the Municipal Court of the city of New York,-borough of Brooklyn, in favor of the defendant, rendered on the 8th day of November, 1906.

Appeal by the defendant, the New York City Railway Company, from a judgment of the Municipal Court of the city of New. York,, borough of Queens, in favor of the plaintiff, rendered on the 9th day of November, 1906. ■

Appeal, by the plaintiff, Gerson Bieber, from an order of the County Court of Kings county, entered in the office of the clerk of said county on-the 1st day of March, 1907, denying the- plaintiff’s motion for aii order- permitting him to withdraw- certain moneys deposited .by the.defendant Lewis Goldberg in the office of the-city chamberlain of: the city of New York. •

<p>Appeal by the defendant, The Travelers’ Insurance Company of Hartford, Connecticut, from a judgment of the Supreme Court, in favor of the plaintiff, entered in the office of the clerk of the county of ■ Kings on the 31st day of August, 1906, upon the verdict of a jury rendered by direction of the court after a trial at the Kings.County Trial Term, both parties having moved for the direction of a verdict, and' also- from an order entered in said clerk’s office on the 31st day of. August, 1906, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the contestant, Milton L. Arensberg, an heir at law of Lipman Arensberg, deceased, from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 7th day of December, 1906, admitting tó probate the last will and testament of Lipman Arensberg, deceased.</p> <p>The will devised the residue of the testator’s property, real and personal, to his executors in trust.to hold during the minority of a son' or until his death, and to pay a portion of the income to a daughter and apply the balance to satisfy the decedent’s debts, including mortgages. On the termination of the trust the executors were directed to divide the estate into as many parts as the testator had children and to pay over to said children or the issue of those deceased. By a codicil the testator disinherited a son who contested the probate on the ground that the trust was void as creating an unlawful accumulation.</p>

<p>Principal and agent—broker’s action for commission—conditions imposed by owner subsequent to contract.</p> <p>When the employment of a real estate broker is undisputed, and he has procured a purchaser who. is admittedly satisfactory to the defendant, his right to com: missions cannot be defeated because the defendant thereafter refused to convey title except upon conditions not" originally disclosed to the broker.</p>

Appeal by the defendant, The Sperry and Hutchinson Company, •from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the. 30th day of November, 1906, upon the verdict of a jury, and also from an order entered in said clerk’s office on the- 14th day of December, 1906, denying the defendant’s: motion for a new trial' made upon the minutes. .■

<p>Appeal by the defendant, Theresa A. S. Sheridan, from a judgment of -the Supreme Court,in favor of the plaintiff,.entered in the office of the- clerk of the county of Westchester on the 14th day of July, 1906, upon the verdict . of a jury, and also from an order entered in said clerk’s office on the 22d day of June, 1906, denying the defendant’s motion for a new trial made upon,the minutes.</p> <p>This action is for damages for breach of contract. The complaint is that the plaintiff chartered a scow to the defendant to carry cellar dirt to fills, a part of the -agreement being that the scow should not ■ be taken to Greenville, IST. J., where there was a fill; that the defendant took the scow there, and in a storm she was, blown ashore and injured.'</p> <p>The contract was made by the agent of the plaintiff with the agent of the defendant over the telephone. The. former testifies that he told the latter (Driscoll) that “ we objected" to sending it down to Greenville ”, because she was new, and because the anchorage was about three-quarters of a mile from the fill, and if a n-orth- ' easter came- up the scows at the anchorage were endangered. He then says: “ My recollection is that Mr. Driscoll said he wouldn’t send her down to Greenville” ; and then follows this question and answer as the last on the subject: i6Q. .Did you tell him you wouldn’t let him go to-Greenville? A; We objected to its going to Greenville,” He entered the terms of the hiring in. the plaintiff’s scow book, but omitted any, restriction as to where the scow might go. • The agent for the defendant (Driscoll) testifies positively that there was no restriction as to the movements of the scow in ; the leasing. Before, during the time of and after, the use of the scow by the defendant other scows of the defendant went continuously to'-the Greenville fill.. There was no other evidence on the subject. i-</p>

Appeal by the defendant, John Deinhardt, from, a judgment of the Municipal Court of the City of 27ew York, in favor of the plaintiff, entered - upon the decision of the-court in an action to recover damages-for negligence.

Appeal by the- defendant, the Interborough Rapid Transit, Company, from a judgment of the Supreme Court in favor of the plaintiff,-entered in the office of the clerk of the county of Kings on the 21st d‘ay .of June, 1906,. upon the verdict of- a jury for $8,000, and' also from an order entered in said clerk’s office on the 25th day of-June, -1-906, -denying the defendant’s motion'for a new. trial made ■upon the. minutes. • Action for damages.for death of the plaintiff’s…

Appeal by the defendant, Simon Levy, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 30th day of November, 1906, upon the verdict of a jury rendered by direction of the court after a trial at the Kings County Trial Term.

Appeal by the plaintiif, Edward Ristau, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 30th day of March, 1904, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term. The action was by servant against master for damages for negligence.

Appeal by the defendant, Charles Eisenman, from a judgment. of the Supreme Court in favor of the plaintiff, entered, in the office of the clerk of the county of Richmond on the 30th day of October, 1906, upon the verdict óf a jury, and also from an order entered in said clerk’s office on the 26th day of October, 1906, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Jane A. Molloy, from a judgment'of .'the Supreme Court'in favor-of the defendant, entered in the office of the clerk of • the county of Nassau on the 25tli day of June, 1906,. upon the decision, of - the court, rendered after a trial at the Kings County Special Term, awarding to the defendant an undivided one-half interest in certain premises. ' ; '</p>

Appeal by the relator, The Empire City Trotting Olub, from an order' of the. Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 17th day of April, 1907, denying the relator’s application for -a peremptory writ of mandamus. ' .

Appeal by the plaintiff, William J. Krausi, from a judgment of the Municipal Court of the city of Mew York, borough of Bfooldyn, in favor of the defendant, rendered on the '28th day of Movember, 1906. '

Appeal by the plaintiff, Gustave E. Floeting,. from a judgment of the 'Municipal Court of ,the city of New York, borough of Brooklyn,, seventh district, in favor of the defendant, rendered on the 7th day of December, 1906. ■

Appeal by the 'defendant, Alfred Brumme, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of' the clerk of the county of Kings on the 20th day of June, 1901, upon thé verdict of a jury for fifty dollars, and also from an ordér entered in said clerk’s office on the 19th day of June, 1901, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Celia Weinstein, from a judgment of the Municipal Court of the .city of.New York, in favor of-the defendants, The judgment awarded to the plaintiff the sum of $245, to the defendants Jessie and Bose Weinstein the ship of $74 each, and to the defendants Lóuisj Jacob and Harry Weinstein the sum of $32.33 each, out of the proceeds of a certificate of Insurance- issued by the defendant the Hnited States' Grand Lodge of tlip Order of.

Appeal by the defendants, the Morgan Contracting Company and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 27th day of November, 1906, upon the decision of the court, rendered after a trial at the Kings County Special Term, sustaining the plaintiff’s demurrer to the counterclaim in said defendants’ amended answer.

Appeal by the defendant, The Village of Spring Valley, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rockland on the 8th day of January, 1906, upon the verdict of a jury for $2,500, and also from an order entered in said cleric’s office on the 15th day of January; 1906,. denying the. defendant’s motion for a- new trial made upon the minutes. .

■ Appeal by Ellen O. Duffy, as executrix, etc., from a decree of .the Surrogate’s Court of -Kings county, entered in said Surrogate’s, Court on the 24th day of September, 1906, removing her as,executrix and testamentary trustee, etc., of -Mary Dittrich,- deceased, and requiring her to account for all money and property in her hands. ■ .

Appeal by the plaintiff, Leon Dwork, from a judgment of^the Municipal Court of the city of New York in favor of the defendant, rendered upon the decision of the court after a trial without a jury in an action to recover damages for breach of contract.

Appeal by the defendant, William 0. Ohamplin, from a judgment of the County Court of Dutchess county, entered in the office of the clerk of said county on the 19th day of June, 1906, affirming a judgment of a justice of the peace of the .town of Poughkeepsie, convicting the defendant as a disorderly person.

<p>Appeal by the plaintiff, Frank Rogers, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 17tli day of January, 1906, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case upon a trial at the Kings County Trial Term.</p>

<p>, Damage — counterclaim for cost of completing contract.</p> <p>In an action to recover for a sum due on a contract for work, labor and services, the defendant is not entitled to a judgment on a counterclaim for the cost of completing the contract for the same must he deducted from the contract price:</p>

Appeal by the defendant, The Brooklyn Heights, Railroad'Company, from a judgment of the Municipal Court of the city of New York, in favor of the plaintiff, entered in the office of the clerk of said court on the 28th day of 'June, 1905.

Appeal by the plaintiff, the Williamsburgh Trust Company, from a judgment of the Municipal Court, of the city of New York, borough of Brooklyn, in favor of the defendant, rendered on the lOtli day of January, 1907.

<p>Sale — évidence—when collateral oral warranty by agent not admissible — principal and agent — soliciting agent cannot make warranty —when unauthorized warranty not ratified. ,</p> <p>In an action to recover a balance due for laying an asbestos granite floor under-a written contract not requiring the floor to be polished or guaranteeing that the colors were permanent, it is error to admit evidence that the plaintiff’s soliciting agent agreed to polish the floor and guaranteed the permanency of the colors. •</p> <p>Although the-contract to lay a floor implies a warranty that it will he suitable for the purposes intended, the vendee sued for the purchase price cannot offset damage by reason of alleged defects, when he fails to prove the value of the floor as it was and as it would have been had the defects not existed.</p> <p>One who is merely a soliciting agent working for a commission and .without authority to make a contract of sale cannot bind his principal by warranties. A principal cannot he held to have ratified unauthorized warranties of which he had no knowledge.</p> <p>In an action to recover the purchase price of a floor, laid under a written contract, evidence is inadmissible to prove an independent collateral warranty not pleaded.</p>

<p>- Appeal by the defendant, the Degnon-McLean Contracting Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 30th day of June, 1906, lipón the verdict of a jury for $400, and also from an order entered in said clerk’s office on the 29th day of June, 1906, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the, defendant, The Long Island Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 17th day of November, 1905, upon, the decision of the court, rendered after a trial at the Kings County Special Term.

<p>Will construed—real property — power of sale — when executor’s deed passes good title.</p> <p>Under a will which gives all the property to the husband of the testatrix for life, remainder over to sisters of the testatrix, and provides that the husband, appointed sole executor, may in his discretion sell by public auction or private sale any or all of the real estate and give good deeds of conveyance, the executor, although himself a life tenant, has power to convert the real estate and can convey, good title which a vendee will be required to accept.</p>

<p>■ Appeal by the defendant, the- American Sugar Keñning Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 3d day of March, 1906, upon the verdict of a jury for $2,250, and also from an order entered' in said clerk’s office on the 8th day of March, 1906, denying the defendant’s motion for a neúi trial made upon the minutes.</p>

Appeal by the plaintiff; John, A.. Allen, from a judgment of the Municipal Court of the city of New York, borough of Queens, in favor of the defendant, rendered on the 2d day of Hovember, 1906.

<p>Principal and agent — powers of bank cashier — bills and notes — evidence of agency—conversion by cashier. '</p> <p>The cashier of a bank. has general authority to receive additional security for notes held by it, especially where he is intrusted with the entire management of its affairs. -He is not disqualified from receiving collateral to secure notes held because, he.is an indorser, on the notes. Hence, in an action to recover on said notes evidence that the cashier did not deny a statement-tliathe received security as a- representative of the bank .is admissible. -</p> <p>The rule that the authority of an agent cannot he proven by his declarations does not apply when his authority is undisputed.' ' 1</p> <p>When a cashier of a bank who has received iri its behalf security for notes held by it on which he is an. indorser, afterwards steals the .security from- the bank, the theft is a theft from the hank and not from his fellow-indorsers, and the hanjr is responsible for the'conversión. .</p>

<p>Appeal by the defendant, The Board of Education of the City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 17th day of January, 1906, upon the decision of the court rendered after a trial at the Kings County Trial Term, a jury having been waived. ■</p>

. Appeal by the plaintiff, Samuel P. McConnell, from a judgment of the Supreme Court in. favor of the defendants, entered in the office of the clerk of the county of Westchester on the 23d day of July, 1906, upon the decision of the court, rendered after a trial at the Westchester Special Term, dismissing the complaint upon the merits. ■ This action .was brought under the provisions of chapter 301 of the Laws of 1892 to restrain the proposed expenditure by the defendants,…

<p>Town. — acceptance of claim as audited—waiver of right to judicial■ . -review of audit.</p> <p>When after the audit of -the claims of á town constable by the' town hoard and by the board of supervisors after ah appeal to them, he accepts payment of the amount allowed, he waives his right- to a judicial review of the items disallowed.. This, whether -lie receive payment/ under protest, or accept 'it as full or part payment, or whether the payment were accepted before or after the determination by the hoard of supervisors.</p> <p>By accepting the. benefit of a judgment a party waives his' right ..to appeal from " it, which rule applies to appeals from the determination of an auditing hoard.</p>

Appeal by the defendant, Susan S. Wilson, from an order- of-the Supreme. Court,- made at the Richmond Special Term and entered in the office of the clerk of the county of Richmond on the 23d day - • of January, 1901, confirming the report of a referee in surplus money proceedings. . '

Appeal by the plaintiff, Catherine Sheehan, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 26th day of March, 1907, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 1st day of March) 1907, denying the plaintiff’s motion for a new trial made upon the minutes,

Appeal by the .plaintiff,-Charles Veit,, from a. judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, rendered on the 20-th day of -April,'1906.

<p>Appeal by the defendant, the Chelsea Jute Mills, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Kings on the 22d day of March, 1906,. upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 16th day of March, 1906, denying the defendant’s motion for a new trial made upon the minutes.</p>

- Appeal by the relator, Eugene Horton, from a judgment of the Supreme Court in favor of the defendants,, entered, in the office'of the clerk of the county of Orange on the ..1st day óf Movember, 1906, pursuant to an order entered in said clerk’s office on the 1st. day of Movember, 1906,. quashing a writ of certiorari theretofore granted herein, and.also from the said order quashing the. writ.

<p>Municipal corporations—lands of incorporated veteran firemen of Brooklyn- — water rates — constitutional law — statute creating exemption.</p> <p>Real estate owned by the incorporated Veteran Volunteer Firemen of the City of Brooklyn, Western District, and not used for profit but solely for the purposes of the corporation, is exempt from assessment for water fates by virtue of chapter 696 of the Laws of 1887, as amended by chapter 440 of the Laws of 1906, which exempts certain property owned by benevolent corporations, including veteran firemen's associations. ,</p> <p>Chapter 440 of the Laws of 1906,. including veteran firemen’s associations among the charitable organizations exempt from water rates under chapter 696 of the Laws of 1887, does not offend section 10 of article 8, of the Staté Constitution providing that no • municipality shall give any money or property or loan its money or credit to or in aid of individuals, associations or corporations, etc.; this because the Constitution does not prevent a municipality from fulfilling honorable obligations founded upon a public service rendered.</p>

Appeal by the plaintiff, Jolin Snee, from a judgment of the County Cou-rt of Kings county in favor of the defendant, entered in the office of the clerk of said county on the 18th day of April, 1906, and -also, from an order - entered in'said clerk’s office on the 10th day of Hay, 1906, dismissing the complaint after a trial before tlie court and a jury. . ' - ,

Appeal by the ■petitioner, Emma Walker, from a final order of the Supreme Court, made at the Queens County Special Term and entered in the office of the clerk of the county of Queens on the 2d day of March, .1907, denying the petitioner’s motion for a . peremptory writ of mandamus.

Appeal by the defendant,, The-New York Evening Journal Bnblishing Compairty, from an interlocutory-judgment of the1 Supreme Court in favor of .the plaintiff, entered in the -office of', the clerk of the county of Kings on. the 7th day of Eebrtiafy, 1907, upon the • decision of the. court, rendered after a' trial at'the Kings1 County Special Term, overruling the defendant’s demurrer to the-complaint. -

Appeal by the plaintiff,.Mary P. Iselin, from a judgment of -the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of -Putnam on- the 23d day of May, 1906, upon the decision of the court, rendered after a trial at the Orange Special Term; dismissing the complaint, and also from an order entered in said clerk’s office on the 2d,day of December, 1905, vacating an injunction pendente lite theretofore granted to the plaintiff.

■ Separate appeals by the defendants, Arthur H. Wilson and Mary F. Mott, individually and as executors, etc., from a'judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 28th day of January, 1907, upon the decision of the court, rendered after a trial at the Kings County Special Term, construing a will.

<p>Tax—supervisor entitled to charge for extending special town tax on general roll.,</p> <p>A supervisor being entitled by section 33 of the County Law to charge one cent for each line of the tax roll actually extended- by him, is entitled to charge for extending special, taxes, such as road, health and water taxes, although .the same are incorporated in the general 'tax rpll on which the town, county and State taxes have already been, extended. The extending of these special taxes on the same line as the general taxes is the extending of a new line within the meaning of the statute.</p> <p>Hooker and Jerks, JJ., dissented, with opinion,.</p>

<p>Public health.— Tenement House Act construed—meaning1 of “ alcove rooms ” — requirements as to window.</p> <p>The words “alcove rooms” as used in section 71 of the Tenement House Act, as amended by chapter 352 oí the Laws .of 1902, mean rooms containing, an alcove, not tire alcove itself. Hence, if an alcove room contain at least one window opening directly upon a street or upon a yard or court as required by. section 67, and said window, as required by section 68, is at least one-tenth of the floor area of the room and its alcove taken together, the tenement house commissioner will-be required by mandamus to approve the plan.</p>

Appeal by the plaintiff, Harry Denton, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of ¡Nassau on the 9th day of June, 1906, ■ upon the dismissal .of the complaint by direction of the court at the close of the plaintiff’s: case upon a trial at the ¡Nassau Trial Term. The action was to recover a commission for the sale, of real estate.

<p>Appeal by the defendant, the Scranton' and Lehigh Goal Company, from a judgment of the. Municipal Court of the city of Mew ' ' York, borough of Brooklyn, in favor of the. plaintiff, rendered on the 2d day of October, 1906. '</p>

<p>Contract — agreement to dissolve bankruptcy proceeding — when same will not be enforced — attorney and client — unconscionable agreement, by attorneys! .</p> <p>Although, parties, to a bankruptcy proceeding may join.in. asking for its.discontinuance and an agreement to discontinue- will constitute a. valid consideration for money paid, yet such agreement must he open and free from any taint of a secret arrangement for the benefit of a few before it. will receive the sanction 1 of a court of equity. ...</p> <p>Where all- the parties are on an equality in the marshalling, and distribution of ■ assets, any agreement favoring á few to the exclusion of the others will not be upheld unless made, with the assent of all.</p> <p>An agreement by an attorney prosecuting a bankruptcy proceeding to discontinue the same if the attorney representing a.partner of-the insolvent firm in-a - prior- action for- .dissolution will- pay- him- eighty per cent of all.fees received, which are to be divided among a. few creditors whom the attorney in bankruptcy represents to the exclusion of other creditors is unconscionable and ' against public .policy.</p> <p>Equity will not entertain an accounting on such agreement.</p>

Appeal by the plaintiff, Thomas Kervin, from a judgment- of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the- county of Allegany on the. 30th day of November, 1906, upon the report of a referee. The plaintiff appeals from the judgment in his favor, bringing up for review only that part which denies him interest ón the damages awarded. - .. ■

<p>Town—salary of health officer — certiorari to compel audit — petition,</p> <p>By virtue of-section 21. of the Public Health Tuaw the local board of health may fix the compensation of a local, health officer and allow his reasonable expenses in attending the annual sanitary conference' of health officers. .-</p> <p>The town' board of auditors must, audit the claims of the local health officer for salary as fixed by the . local board'.of health, and Ills expenses in attending the sanitary conference.</p> <p>Audit cannot he refused because the health officer serving for a fixed salary ■ to fceep $ detailed ftaternent of service's yepdered; or because: hj| dy$Jf§ were not formally prescribed by the board of health, or because the auditing board did not agree with the board of health as to the rate of compensation.</p> <p>Although the court is concluded by statements of fact contained in the return to certiorari it may consider facts alleged in the petition not' controverted by the return. Mere opinions or conclusions in the return do not controvert, material allegations of fact in the petition.</p> <p>Williams, J., dissented.</p>

Appeal by the plaintiff, Fred R. Badger, from a judgment of the County Court of Franklin county in favor of-the defendant, entered in the office of the clerk of said county on the 21st day of June, 1906, upon the dismissal-of the complaint by direction of .the court after a trial before the court and' a jury, and also from an order entered in said clerk’s office on the 21st day of June, 1906, denying the plaintiff’s motion for a new trial made upon the minutes; Upon the 4th…

<p>Criminal conversation — punitive damage — erroneous charge.</p> <p>In an action for criminal conversation it is error to charge, in effect that the jury should give punitive damages. .</p> <p>In action's in tort where the circumstances warrant exemplary damages, the.j.ury always has discretion to say whether in the particular case such damages are to he given.</p>

Appeal by the defendant, Jonathan T. Eider, from an order of the Supreme Court, made at the Saratoga Special Term and entered in the office of the clerk of the county of Warren on the 19tli day of March, 1907, denying the defendant’s motion to change the place of trial from the county of Warren to the county of Columbia,

Appeal by the defendant, the New York Leather Belting Company, from a judgment of the Supreme Court in-favor of the plaintiff, entered in the office of'.the clerk of the county of Madison on the 17th day- of September, 1906, upon the report of a referee. ■

Appeal by the plaintiff,'James L. Rowland, from an order of -the Supreme Court,- made at'the-Broome Trial Term, and entered : in. the office of the clerk of the county of Broome on the 5tli day .of January, 1907, setting aside the verdict of a jury in favor of.(the plaintiff-and granting a. new trial of tile action. . The plaintiff is a commission merchant living in Baltimore.

Appeal by the plaintiff, Thomas Martin, as administrator, etc., from a judgment of the Court of Claims of the State of Mew York in favor of the defendant, entered in the office of the clerk of said court qn the 9th day of July, 1906? dismissing the claim of the plaintiff,

Appeal by the plaintiff, Hannah Bose, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Sullivan on the 8th day of January, 1907, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case at-a trial at the Sullivan Trial Term, and also from an order entered in said clerk’s office on the 24th day of December, 1906, denying the plaintiff’s' motion for a new trial made…

<p>Partnership — accounting — liability for firm debts—loss by fire after dissolution.</p> <p>Although a partnership agreement provides that at the termination of the partnership one partner shall receive a stated sum for his interest in “ icehouses, tools and property of said firm,” he .remains nevertheless- liable to share with his fellow-partners the losses of the firm, and when these have not been fully-paid he is not entitled to a judgment,for the agreed price of the icehouse.</p> <p>. The loss caused by the destruction of the icehouse by fire after the termination of the partnership falls upon the partners who agreed to purchase it, and the selling partner is entitled to credit for the purchase price. '</p>

<p>Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the-county of Ulster on the 15th day of December] 1906, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 19th day of December, 1906, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Jonathan XL Coolidge, from an order of the County Court of Warren county, entered in the office of the. clerk of said county on the 7tli day of May, 1907, denying the plaintiff’s motion for a bill of particulars as to certain payments claimed in the answer.

Appeal by the plaintiff, Ida M. Boice, from a judgment of the Supreme Court in favor of the defendant, entered in the ofBce of the clerk of the county of Ulster on the 19th day of December, 1906, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case upon a trial at the Ulster Trial Term.

Appeal by the defendant, Joseph A. Decker, from a judgment of the Supreme Court in' favor of the plaintiff, entered in the office of the clerk of the county of Chenango on the 17th day of January, 1906, upon the verdict of a. jury for $1,000, and also from an order entered in said clerk’s office on the' 13th day of.

Appeal by the defendants, Isaac Y. Ouderkirk and others, assessors of the town of Saratoga Springs, from a judgment of the Supreme Court in favor of the relator, entered in the office of the clerk of the county of Saratoga on the 30th day of January, 1907, upon an order entered in said cleric’s office on the 30tli day of January, 1907, confirming the report of a referee appointed in a proceeding to review the assessment of the relator’s property and directing the reduction…

Appeal by the plaintiffs from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of - Albany on the- 10th day of April,. 1901, upon the decision of the court, rendered. • after a trial at the Albany Special Term, sustaining the defendants’ demurrers'to the complaint.

<p>Pleading—negligence in operating automobile—motion to make complaint more definite and certain.</p> <p>An order requiring a pleading to be made more definite and certain should not require the disclosure of matters Avhich are mo.re properly the subject of a bill of particulars.</p> <p>Thus, in an action founded upon the negligence of the defendant in operating an automobile, allegations in the complaint that the defendant operated his automobile negligently and carelessly by not giving proper and adequate signals, and by running at a dangerous rate of speed, .should not be required to be made more definite and certain; further information as to these allegations, if the defendant be entitled thereto, should be procured by motion for a bill of particulars.</p> <p>On the contrary, allegations that the defendant was negligent in not observing and obeying rules and regulations promulgated by the authorities having control of the highway and its use should be required to be made more definite and certain. The plaintiff should be required to state the rules and regulations referred to, and the authorities by whom they were made and promulgated.</p> <p>When, in addition to allegations which are indefinite and uncertain, the com- , plaint Contains other matters constituting a good cause of action, the order should not provide that on the failure of the plaintiff to remedy the defect the entire complaint is to be stricken out; striking out' the indefinite allegations would be sufficient.</p>

Appeal hy the plaintiff, Máynard M. Clement, as State Commissioner of Excise of the State of Mew York, from two judgments of the Supreme Court respectively in favor of the respective defendants, entered in the office of the clerk of the county of Albany, one on the ,5th day and one on the 4th day of October, 1905, upon the verdiet of a jury rendered after a trial at the Albany Trial Term, and also from an order entered in said clerk’s office on the 17th day of May, 1905,…

Appeal by the defendant, Robert II. McCurdy, from an order of the Supreme Court, made at the Saratoga Special Term and entered in the office of the clerk of the county of. Saratoga on the 12th day of March, 1907, granting the plaintiff leave to serve the complaint, herein after' the expiration of- the time within which it should have been served.

Appeal by the defendants, Daniel F. Payne and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Essex on the 7th day of January, 1907, upon the decision, of the court rendered after a trial at the Essex Special Term.

Appeal by the plaintiff, Fred W. Hollenbeck, from a judgment of the County Court of Cortland county, entered in the office of the clerk of the county' of Cortland' on the 24th day of December, 1906, reversing a judgment of a justice of the peace in favor of the plaintiff.

Appeal, by the defendant, Martin Zimmer, from aii order of the County Court of Broome county, entered in the office of the clerk of the county of Broome on the 28th day of February, 1907, dismissing the appeal of the defendant from á judgment of a Justice’s Court. The appeal which was dismissed demanded a new trial in the County Court. Tile defendant on taking his appeal paid the justice his feesj required bylaw, and filed an Undertaking to perfect the appeal.

Appeal by Helen Maxwell Williams, a residuary legatee under the last will, and testament of Mary Emily -Hull, deceased, from an' order of the Surrogate’s 'Court of the county of Fulton, entered in said.Surrogate’s Court on the 15th day of April, 1907. • -The order appealed from states that,it is made to.correct.a decree made in this matter on July 28, 1905, It was made after such decree had been affirmed on appeal by this court and by the Court ofAppeals.

<p>Appeal by the defendant, Julia A. McKeely, from an order of the Oounty Court of Sullivan county, entered in the office of the cleric of said county on the 8th day of April, 1907, directing a judgment of foreclosure in favor of the plaintiffs upon the ground that the answer of the defendant Julia A. McKeely is frivolous.</p>

<p>Mortgage on .after-acquired property—-priority of mortgagee oyer purchaser under mechanic’s lien.</p> <p>Under a mortgage executed by a corporation to secure bonds and covering lands thereafter to be acquired by the mortgagor and described in the mortgage^ the lien of the mortgagees on lands subsequently acquired by the mortgagor is superior to the title acquired by purchasers on the foreclosure of a mechanic’s' lien on the same lands filed subsequent tti the acquisition .of the fee by the mortgagor. '. -</p> <p>Kellogg and Sewell, JJ., dissented.</p>

Appeal by, the defendants, The Manhattan. Railway Company and others, from a judgment of the Supreme Court in favor of the - plaintiff, entered in the offipe of the clerk of the county of Mew York on the 28th day of May, 190,6^ upon the decision of the court rendered after a trial at the Mew York Special Term..

Appeal by the defendant, the Fremont Realty Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of'the county of New York on the 1st day of February, 1907, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by Lucius H. Beers and another, as executors, etc., of Robert R. Stuyvesant, deceased, from so much of an order of the Supreme Court, made at the New York Special' Term and entered in the office'of the clerk of the county o£ New York on the 13th day of December, 1906, as overrules the objections, of the said executors to the awards of the commissioners of estimate and assessment as to damage parcel No. 85

<p>' Equity — when accounting will not lie — trust—purchase of property by trustee.</p> <p>An accounting in equity will not lie unless the parties are in a trust relation.</p> <p>One holding bonds in trust for another is not liable to account for property pur- • chased by him on the foreclosure of a mortgage prior to the mortgage which secured the bonds.</p> <p>Although the trustee acquires.bonds for the purpose of controlling the foreclosure of the mortgage which secures them, property covered by such mortgage, which he purchased on the foreclosure of a prior mortgage, is not impressed with the trust and he is not accountable therefor but only for that portion of the property purchased by him under the foreclosure of the second mortgage.</p> <p>Clarke and Lambert, JJ., dissented.</p>

Appeal by John F. Aliearn from an order and warrant, of coni- ■ mitinent issued by &. justice of' the Supreme .Court, and entered in-the office of the clerk of . the county of 'Mew York on'the 27th day of May, 1907. . - ■

Appeals by George R. Olney, George F. Scannell and William II. Walker, respectively, from respective orders and warrants of commitment, one in each of the above-entitled proceedings, issued -by a justice of the Supreme Court ánd entered in the office-of the clerk of the county'-of New York on , the 27th day of May, 1907..

Appeal by the plaintiff, Marie T. Dunn, individually and as executrix, etc., from an order of the Supreme Court, made at the Mew York Special Term and entered-in the office of.the clerk of the county of Mew York on the 26th day of February, 1907, amending a prior order confirming the report of a referee. .

Appeal by thé' defendants, Friedrich Hachod and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th, day of June, 1907, sustaining the plaintiff’s objections to the production of a letter by a-witness whose deposition was directed to be taken'for the purpose of being used on a motion.

Appeal by the plaintiff, Manning, Maxwell & Moore, Inc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county óf .New York on the 1st day of April, 1907, granting the defendant’s motion to vacate the service of the summons and complaint herein.

Appeal by Walter R. Mason and others from a decree of the Surrogate’s Court-of the county of - ¡New York, entered in-said Surrogate’s Court on tiie 6th day óf May, 1907, affirming a,prior order ■ óf said court which determined the value of 'the remainder limited upon the life of Sarah M'. Mason in' and by the will of Joseph Ray lor, deceased, and fixed the amount of the transfer tax thereon.

Appeal by the defendants, Fielding L. Marshall - and others, as execútors ■ and trustees, etc., and others, from an order of the Supreme Court,-made at the New York Special Term and entered in -the office of the clerk of the county of' New York on the 25th day of January, 1907, confirming the report of commissioners of estimate and assessment. •

Appeal by the' defendant, Heiiry Yan Einden, from an order of the Supreme Court, made at the New York Special Term and entered in' the .office of the clerk of the county of New York on the 15th day of May, 1907, denying the defendant’s motion for a discovery, of the books and papers of the plaintiff corporation. '

<p>Beal property — specific performance — title of purchaser on foreclosure of mechanic’s lien.</p> <p>When a notice of mechanic’s lien does not give the street number of the premises 'and describes them as half the actual width, the vendee of'the purchaser of the whole premises ón foreclosure will not be compelled to take title and ■ may recover earnest money paid, even though the complaint ■ and Us pendens gave the true width of the lot. The title isso doubtful that equity will not decree specific performance.</p> <p>Such title is also rendered doubtful,by; the failure of the plaintiff oh foreclosure to make other lienors who had filed lien's between his original notice and an, amendment to his complaint and Us pendeiis parties defendant.</p> <p>Clarke and Houghton, JJ., dissented.</p>

<p>• Appeal by the defendant, Edmond J. Butler, as commissioner, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of Hay, 1907, granting the relator’s motion for a peremptory writ .of mandamus.</p>

Appeal by Sinclair Tousey and others, individually and as president, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on-the 14th day of May, 1907, granting a peremptory writ of mandamus for-the inspection of the books and records of the corporation Frank Tousey, Publisher. . /

■ Appeal by the defendant,' Waltér J. Salomon, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of. New Yorlc-on the 1st ..day of August, 1906, upon'the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendant, .Hugo Reisinger, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county óf New York on the 30th day of June, 1906, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 29'th day of June, 1906, denying.the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Lena Brecht, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, rendered on the 16th-.day. of.-January, 1906, convicting the defendant of the. crime of manslaughter in the first degree.

Appeal by the plaintiff, George F.- Johnson, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 4th day of. January, 1907, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits. • •

Appeal by the plaintiff, Joseph H. White, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 26th day of December, 1906, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon •the merits.

- Appeal by the defendant, Oscar A. Spier, from a judgment of the Court of Special Sessions of the First Division of the City of New York in favor of ■ the plaintiff, rendered on the 31st day of May, 1906, convicting the defendant of the misdemeanor of a violad tióri of section 318 of the Penal Code, and also from an order' made on the -1st day of June, 1906, denying the defendant’s motion for a new trial.

Appeal by the plaintiff, Adolph S. Lowenthal, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of June, 1907.

Appeal by the. plaintiff, the Mutual Milk and Cream Company, • from an order of the Supreme Court, made at the New York Special Term and entered in the office of' the cleric of the county of New York on the 10th day of May, 1907, denying the plaintiff’s .■ motion for an in junction pendente lite.

Appeal by- George E. Altstadt from certain portions of an order of the .Supreme Court,' made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 21st day of May, 1907. '

Appeal by the relator, Henry R. Winthrop, from an order of the Supreme Court* made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29'th day of June, 1906.

Appeal by the defendant, Edmond J. Butler, as commissioner, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county' of New York on the 18th day of April,. 1907.

<p>Beal property — vendor’s lien — facts not establishing right thereto— • when complaint in equity does not authorize rnoney judgment.</p> <p>Action to establish a vendor’s lien.</p> <p>The plaintiffs, remaindermen, entered into a contract with the defendant to • procure "and assign to her a contract of sale by the life tenant who" as executor had a power of sale of the whole premises. It was agreed that the defendant should pay a sum stated on the assignment of the life tenant’s contract and a further sum when she, the defendant, resold the premises." The-contract of- ■ the life tenant was assigned to the defendant, who subsequently acquired -the complete title-from the life tenant under his power of sale, and in her turn conveyed to a, third person who had no notice of the agreement.</p> <p>Meld, that the remaindermen were not entitled to a vendor’s" lien either upon the premises sold or upon the consideration received by "the- defendant on the resale, but at the mpst were common creditors, of the defendant, entitled only to recover at law for a breach of contract to pay the balance due on the resale;</p> <p>That as the complaint' demanded equitable relief only and contained no demand for a money judgment, the plaintiffs were not entitled .thereto.</p>

<p>Practice — examination under section 870 of the Code of Civil Procedure.</p> <p>An ex parte order for an examination of a defendant pursuant to section 870 of the Code of Civil Procedure should not he vacated merely because the action was on trial before a referee, for said section expressly authorizes an examination during trial.</p>

Application by the relators, Herman .A. Metz, as comptroller, etc., and others, for a writ of prohibition, directed to Charles W. Dayton, a justice of the Supreme Court, and others.

Appeal by the defendant, The Washington Steamboat Company, Limited, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 10th day of December, 1906, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 11th day of December, 1906, denying the defendant’s motion for a new trial made upon the minutes, with notice of an intention to bring up for review upon such…

Appeal by the plaintiff, Robert H. E. Elliott, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 7th day of March, 1907, upon the decision of the court,' rendered after a trial at the New York Special Term, dismissing,the complaint herein.

Appeal by the defendants, Abraham P. Hiller and another, partners, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 28th day of April, 1906, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term.

<p>Tax— national bank stock — constitutional law —• due process of law — • no discrimination against national bank stock.</p> <p>Sections 23 and 24 of the Tax Law, as amended by chapter 550 of the Laws of 1901, providing for the assessment of shares of national and state bank stock at one per cent of its book Value, are not unconstitutional in ■ denying duo process of law by failing to provide for a hearing of-the owners before a determination of the valúe of the stock, for under section 24 the owner is entitled to certiorari to review the validity of the tax. "</p> <p>Section 5219 ot' th.e United States Revised Statutes, under the authority of which the State acquires its sole power-to tax national bank stock, only prohibits a gtatf froga taxjgg sugh gtgcjj go fig to discrinjiiuRg against R as an inyegtfpjit. As the Tax Law fixes the tax upon national and other hank stock at one per cent óf its book value, while as a fact the rate on other personal property is over two per cent, there is no unjust discrimination against national bank stock and the Tax Law does not offend the Federal statute.</p> <p>Ingeaham and McLaughlin, JJ., dissented. .</p>

Cross-appeals by the Consolidated Gas Company of New York' and by The City of New' York from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of April, 1906, confirming the report of commissioners of estimate' and assessment appointed in proceedings to condemn land for dock purposes. o

Appeals from orders directing the appellant, John Vincent, to pay over to the petitioners, Hagerty and Gallagher, certain sums of money.

<p> Partnership—action by copartner for accounting—facts showing that assignment to copartner was made as security for a loan to firm. </p>

<p>" Appeal from an order gratiting a motion for the retaxation of costs.</p>

<p>Appeal from a judgment entered on the ISth'day of April, 1907, after a trial at Special Term. ' 1</p>

<p>Appeal from an order of the Appellate Term dismissing an appeal from the City Court.</p>

<p>Appeal from an order granting an injunction pendente lite.</p>

<p>Appeal from an order denyjng-a motion for an order referring the issues to a-single referee for trial.</p>

Appeal by the plaintiff.from an order entered in the clerk’s- office of the county of New York on the 27th day of March, 1907, denying plaintiff’s motion for leave to renew his application for a further bill of particulars and for the granting of a further bill of particulars.

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

<p>Insurance—payment of premiums — appeal -^parties bound by issues of fact presented without objection to. the jury.</p>

<p>Appeal by Jesse B- Mabee from a decree of the surrogate of the county of Orange, entered in his office on the 2d day of July, 1906.</p>

This is an appeal by the State Commissioner of Excise from an order of the county judge of Columbia county requiring the town clerk of the town of Livingston to call a special town meeting at which the local option questions provided for by section 16 of the Liquor,Tax Law† shall be resubmitted to the voters. Order affirmed, with ten dollars costs and disbursements, upon the authority of Matter of Town of La Fayette (105 App. Div. 25).

Determination confirmed, with fifty dollars costs and disbursements. No opinion. All concurred, except Cochrane, J., dissenting, in part, in memorandum.